INSURANCE BROKER. The following brokers handle the Loan Parties’ and the Loan Parties’ Subsidiaries’ property and liability insurance: Broker Contact Telephone Fax Email The Loan Parties acknowledge that Agent’s acceptance of this Perfection Certificate and any continuation pages does not imply any commitment on Agent’s or any Lender’s part to enter into a loan transaction with the Loan Parties, and that any such commitment may only be made by an express written loan commitment, signed by each of Agent’s and each Lender’s authorized officers. The Loan Parties agree that this Perfection Certificate shall constitute a “Loan Document” under the Credit Agreement. Dated as of the date first written above LOAN PARTIES: AERIE PHARMACEUTICALS, INC., a Delaware corporation By: Name: Title: AERIE DISTRIBUTION, INC., a Delaware corporation By: Name: Title: EXHIBIT C TO CREDIT AGREEMENT FORM OF BORROWING NOTICE [ ], [ ] This Borrowing Notice is given by , an Authorized Officer of Aerie Pharmaceuticals, Inc., a Delaware corporation (the “Borrower”), pursuant to that certain Credit Agreement dated as of July 23, 2018, by and among the Borrower, the other Loan Parties from time to time party thereto, the Lenders from time to time party thereto and Deerfield Private Design Fund III, L.P., as Agent (as such agreement may have been amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”). Capitalized terms used herein without definition shall have the meanings set forth in the Credit Agreement. The undersigned Authorized Officer hereby gives notice to each Lender of the Borrower’s request to borrow a Subsequent Disbursement in the original principal amount of $[ ]1 on , 20 ;23 it being agreed and understood that (a) 1.75% of such original principal amount ($ ) shall be in the form of OID in favor of the Lenders funding such Subsequent Disbursement and shall, therefore, not be required to be funded by such Lenders and (b) the payment of any fees required to be paid on the Disbursement Date of such Subsequent Disbursement pursuant to the Credit Agreement and the other Loan Documents and all costs and expenses required to be paid on the Disbursement Date of such Subsequent Disbursement (including pursuant to Section 6.3 of the Credit Agreement) pursuant to the Credit Agreement and the other Loan Documents may be offset against the proceeds of such Subsequent Disbursement. Notwithstanding anything to the contrary herein or otherwise and for the avoidance of doubt, the Borrower understands and agrees that any such OID, fees, costs and/or expenses that are deducted or offset from the proceeds of such Subsequent Disbursement shall still be deemed to be part of the principal amount of such Subsequent Disbursement that is and will be owed by the Borrower and the other Loan Parties and shall be paid at the same time such other principal amounts of such Subsequent Disbursement are required to be paid pursuant to the terms of the Credit Agreement and the other Loan Documents. The undersigned officer hereby certifies that, both before and after giving effect to the request above (and the use of the proceeds of such Subsequent Disbursement), (a) that such officer is an Authorized Officer, (b) each of the conditions precedent set forth in Section 4.2 of the Credit Agreement and Section 2.2 of the Credit Agreement has been fully satisfied in all respects and all of the terms set forth in Section 2.2 of the Credit Agreement have been completely complied with, (b) all of the representations and warranties contained in the Credit Agreement and the other Loan Documents are true, correct and complete in all material respects (without duplication of any materiality qualifier contained therein) as of the Disbursement Date, except to the extent that such representation or warranty expressly relates to an earlier date (in which event such representation or warranty is true, correct and complete in all material respects (without duplication of any materiality qualifier contained therein) as of such earlier date), and (c) no Default or Event of Default has occurred or would result from such Subsequent Disbursement or the use of the proceeds therefrom. 1 Amount must be not less than $5,000,000. 2 For each Subsequent Disbursement, the Borrowing Notice must be received at least fifteen Business Days in advance of the proposed funding date.
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INSURANCE BROKER. The following brokers handle the Loan Parties’ and the Loan Parties’ Subsidiaries’ broker handles Company’s property and liability insurance: Broker Contact Telephone Fax Email The Loan Parties acknowledge Company agrees to advise you of any change or modification to any of the foregoing information or any supplemental information provided on any continuation pages attached hereto, and, until such notice is received by you, you shall be entitled to rely upon such information and presume it is correct. Company acknowledges that Agent’s your acceptance of this Perfection Certificate and any continuation pages does not imply any commitment on Agent’s or any Lender’s your part to enter into a loan transaction with the Loan PartiesCompany, and that any such commitment may only be made by an express written loan commitment, signed by each one of Agent’s and each Lender’s your authorized officers. The Loan Parties agree that this Perfection Certificate shall constitute a “Loan Document” under the Credit Agreement. Dated as of the date first written above LOAN PARTIESDate: AERIE PHARMACEUTICALSDecember __, 2007 ENDOCYTE, INC., a Delaware corporation . By: Name: Title: AERIE DISTRIBUTIONSCHEDULE A COMMITMENTS Name of Lender Commitment of such Lender Pro Rata Share General Electric Capital Corporation $ 7,500,000 50 % Oxford Finance Corporation $ 7,500,000 50 % TOTAL $ 15,000,000 100 % SCHEDULE B DISCLOSURES Existing Liens: Filing Date and Number (include original file date and continuations, INCSecured State and amendments, Debtor Party Collateral Jurisdiction etc.) Endocyte, a Delaware corporation By: Name: Title: EXHIBIT C TO CREDIT AGREEMENT FORM OF BORROWING NOTICE [ ]Inc. Lafayette Bank & Trust (a) Up to $500,000 cash collateral on deposit at Borrower’s deposit account maintained with Lafayette Bank & Trust, [ ] This Borrowing Notice is given and (b) specified equipment of Debtor financed by Secured Party, an Authorized Officer of Aerie Pharmaceuticals, Inc., a Delaware corporation together with the proceeds thereof (as identified in the “Borrower”commercial security agreements and promissory notes described below), pursuant to (i) that certain Credit Agreement promissory note dated December 9, 2003 between Debtor and Secured Party, together with related commercial security agreement dated December 9, 2003 between Debtor and Secured Party, (ii) that certain promissory note dated April 30, 2004 between Debtor and Secured Party, together with related commercial security agreement dated April 30, 2004 between Debtor and Secured Party, and (iii) that certain promissory note dated October 6, 2005 between Debtor and Secured Party, together with related commercial security agreement dated October 6, 2005 between Debtor and Secured Party. N/A None Existing Indebtedness: Total amount of Debtor Creditor Indebtedness Outstanding Maturity Date Endocyte, Inc. Lafayette Bank & Trust $280,908.00 (as of July 23October 31, 20182007), by and among the Borrower, the other Loan Parties from time to time party thereto, the Lenders from time to time party thereto and Deerfield Private Design Fund III, L.P., as Agent (as such agreement may have been amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”). Capitalized terms used herein without definition shall have the meanings set forth in the Credit Agreement. The undersigned Authorized Officer hereby gives notice to each Lender of the Borrower’s request to borrow a Subsequent Disbursement in the original principal amount of $[ ]1 on , 20 ;23 it being agreed and understood that (a) 1.75% of such original principal amount ($ ) shall be in the form of OID in favor of the Lenders funding such Subsequent Disbursement and shall, therefore, not be required to be funded by such Lenders and (b) the payment of any fees required to be paid on the Disbursement Date of such Subsequent Disbursement pursuant to the Credit Agreement loans made by Secured Party to Debtor as evidenced the promissory notes described above in this Schedule B under “Existing Liens”. Promissory notes evidencing this indebtedness have following respective maturity dates: December 9, 2008; April 30, 2009; and the other Loan Documents and all costs and expenses required to be paid on the Disbursement Date of such Subsequent Disbursement (including pursuant to Section 6.3 of the Credit Agreement) pursuant to the Credit Agreement and the other Loan Documents may be offset against the proceeds of such Subsequent DisbursementOctober 6, 2010. Notwithstanding anything to the contrary herein or otherwise and for the avoidance of doubt, the Borrower understands and agrees that any such OID, fees, costs and/or expenses that are deducted or offset from the proceeds of such Subsequent Disbursement shall still be deemed to be part of the principal amount of such Subsequent Disbursement that is and will be owed by the Borrower and the other Loan Parties and shall be paid at the same time such other principal amounts of such Subsequent Disbursement are required to be paid pursuant to the terms of the Credit Agreement and the other Loan DocumentsExisting Investments: None. The undersigned officer hereby certifies that, both before and after giving effect to the request above (and the use of the proceeds of such Subsequent Disbursement), (a) that such officer is an Authorized Officer, (b) each of the conditions precedent set forth in Section 4.2 of the Credit Agreement and Section 2.2 of the Credit Agreement has been fully satisfied in all respects and all of the terms set forth in Section 2.2 of the Credit Agreement have been completely complied with, (b) all of the representations and warranties contained in the Credit Agreement and the other Loan Documents are true, correct and complete in all material respects (without duplication of any materiality qualifier contained therein) as of the Disbursement Date, except to the extent that such representation or warranty expressly relates to an earlier date (in which event such representation or warranty is true, correct and complete in all material respects (without duplication of any materiality qualifier contained therein) as of such earlier date), and (c) no Default or Event of Default has occurred or would result from such Subsequent Disbursement or the use of the proceeds therefrom. 1 Amount must be not less than $5,000,000. 2 For each Subsequent Disbursement, the Borrowing Notice must be received at least fifteen Business Days in advance of the proposed funding date.Material Contracts:
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INSURANCE BROKER. The following brokers handle the Loan Parties’ and the Loan Parties’ Subsidiaries’ property and liability insurance: Broker Contact Telephone Fax Email The Loan Parties agree to advise you of any change or modification to any of the foregoing information or any supplemental information provided on any continuation pages attached hereto, and, until such notice is received by you, you shall be entitled to rely upon such information and presume it is correct. The Loan Parties acknowledge that Agent’s your acceptance of this Perfection Certificate and any continuation pages does not imply any commitment on Agent’s or any Lender’s your part to enter into a loan transaction with the Loan Parties, and that any such commitment may only be made by an express written loan commitment, signed by each one of Agent’s and each Lender’s your authorized officers. The Loan Parties agree that this Perfection Certificate shall constitute a “Loan Document” under the Facility Agreement and a “Financing Document” under the Credit Agreement. Dated as of the date first written above LOAN PARTIES: AERIE PHARMACEUTICALSENDOLOGIX, INC., a Delaware corporation By: Name: Title: AERIE DISTRIBUTIONCVD/RMS ACQUISITION CORP., a Delaware corporation By: Name: Title: NELLIX, INC., a Delaware corporation By: Name: Title: TRIVASCULAR TECHNOLOGIES, INC., a Delaware corporation By: Name: Title: LOAN PARTIES CONTINUED: TRIVASCULAR, INC., a California corporation By: Name: Title: TRIVASCULAR CANADA, LLC, a Delaware limited liability company By: Name: Title: EXHIBIT C TO CREDIT AGREEMENT FORM OF BORROWING NOTICE [ ]WARRANT THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, [ ] This Borrowing Notice is given by AS AMENDED (THE “SECURITIES ACT”), an Authorized Officer OR ANY STATE SECURITIES LAW. THE SECURITIES MAY NOT BE SOLD, TRANSFERRED OR ASSIGNED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, OR PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT, INCLUDING PURSUANT TO SECTION 4(A)(7) OF THE SECURITIES ACT OR RULE 144 UNDER THE SECURITIES ACT OR PURSUANT TO A PRIVATE SALE EFFECTED UNDER APPLICABLE FORMAL OR INFORMAL SEC INTERPRETATION OR GUIDANCE, SUCH AS A SO-CALLED “4[(a)](1) AND A HALF SALE.” NOTWITHSTANDING THE FOREGOING, THE SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN OR FINANCING ARRANGEMENT SECURED BY THE SECURITIES. AN INVESTMENT IN THESE SECURITIES INVOLVES A HIGH DEGREE OF RISK. HOLDERS MUST RELY ON THEIR OWN ANALYSIS OF THE INVESTMENT AND ASSESSMENT OF THE RISKS INVOLVED. Warrant to Purchase shares Warrant Number: Warrant to Purchase Common Stock of Aerie PharmaceuticalsEndologix, Inc. THIS CERTIFIES that or any subsequent holder hereof (“Holder”) has the right to purchase from Endologix, Inc., a Delaware corporation (the “BorrowerCompany”), pursuant ( ) fully paid and nonassessable shares of the Company’s common stock, $0.001 par value per share (“Common Stock”), subject to that certain Credit Agreement dated adjustment as of July 23provided herein, 2018, by and among at a price equal to the Borrower, the other Loan Parties from time to time party thereto, the Lenders from time to time party thereto and Deerfield Private Design Fund III, L.P., as Agent Exercise Price (as such agreement may have been amendeddefined in Section 3 below), restated, supplemented at any time during the Term (as defined in Section 1 below). Holder agrees with the Company that this Warrant to Purchase Common Stock of the Company (this “Warrant” or otherwise modified from time to time, the this “Credit Agreement”). Capitalized terms used herein without definition shall have the meanings set forth in the Credit Agreement. The undersigned Authorized Officer hereby gives notice to each Lender of the Borrower’s request to borrow a Subsequent Disbursement in the original principal amount of $[ ]1 on , 20 ;23 it being agreed ) is issued and understood that (a) 1.75% of such original principal amount ($ ) all rights hereunder shall be in the form of OID in favor of the Lenders funding such Subsequent Disbursement and shall, therefore, not be required held subject to be funded by such Lenders and (b) the payment of any fees required to be paid on the Disbursement Date of such Subsequent Disbursement pursuant to the Credit Agreement and the other Loan Documents and all costs and expenses required to be paid on the Disbursement Date of such Subsequent Disbursement (including pursuant to Section 6.3 of the Credit Agreement) pursuant to the Credit Agreement and the other Loan Documents may be offset against the proceeds of such Subsequent Disbursement. Notwithstanding anything to the contrary herein or otherwise and for the avoidance of doubt, the Borrower understands and agrees that any such OID, fees, costs and/or expenses that are deducted or offset from the proceeds of such Subsequent Disbursement shall still be deemed to be part of the principal amount of such Subsequent Disbursement that is and will be owed by the Borrower and the other Loan Parties and shall be paid at the same time such other principal amounts of such Subsequent Disbursement are required to be paid pursuant to the terms of the Credit Agreement and the other Loan Documents. The undersigned officer hereby certifies that, both before and after giving effect to the request above (and the use of the proceeds of such Subsequent Disbursement), (a) that such officer is an Authorized Officer, (b) each of the conditions precedent set forth in Section 4.2 of the Credit Agreement and Section 2.2 of the Credit Agreement has been fully satisfied in all respects and all of the terms conditions, limitations and provisions set forth in Section 2.2 of the Credit Agreement have been completely complied with, (b) all of the representations and warranties contained in the Credit Agreement and the other Loan Documents are true, correct and complete in all material respects (without duplication of any materiality qualifier contained therein) as of the Disbursement Date, except to the extent that such representation or warranty expressly relates to an earlier date (in which event such representation or warranty is true, correct and complete in all material respects (without duplication of any materiality qualifier contained therein) as of such earlier date), and (c) no Default or Event of Default has occurred or would result from such Subsequent Disbursement or the use of the proceeds therefrom. 1 Amount must be not less than $5,000,000. 2 For each Subsequent Disbursement, the Borrowing Notice must be received at least fifteen Business Days in advance of the proposed funding dateherein.
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INSURANCE BROKER. The following brokers handle the Loan Parties’ and the Loan Parties’ Subsidiaries’ property and liability insurance: Broker Contact Telephone Fax Email The Loan Parties acknowledge that Agent’s acceptance of this Perfection Certificate and any continuation pages does not imply any commitment on Agent’s or any Lender’s part to enter into a loan transaction with the Loan Parties, and that any such commitment may only be made by an express written loan commitment, signed by each of Agent’s and each Lender’s authorized officers. The Loan Parties agree that this Perfection Certificate shall constitute a “Loan Document” under the Credit Agreement. Dated as of the date first written above above. LOAN PARTIES: AERIE PHARMACEUTICALS, INC., a Delaware corporation By: Name: Title: AERIE DISTRIBUTION, INC., a Delaware corporation By: Name: Title: EXHIBIT C [SIGNATURE PAGE TO PERFECTION CERTIFICATE] TO AMENDED AND RESTATED CREDIT AGREEMENT FORM OF BORROWING FIRST SUBSEQUENT DISBURSEMENT COMMITMENT FUNDING NOTICE [ ], [ ] This Borrowing Notice is given by , an Authorized Officer of Aerie Pharmaceuticals, Inc., a Delaware corporation (the “Borrower”), pursuant to that certain Amended and Restated Credit Agreement dated as of July 23May 2, 20182019, by and among the Borrower, the other Loan Parties from time to time party thereto, the Lenders from time to time party thereto and Deerfield Private Design Fund III, L.P., as Agent (as such agreement may have been amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Credit Agreement”). Capitalized terms used herein without definition shall have the meanings set forth in the Credit Agreement. The undersigned Authorized Officer hereby gives notice to each First Subsequent Disbursement Lender of the Borrower’s request to borrow a First Subsequent Disbursement in the original principal amount of $[ ]1 on , 20 ;23 it being agreed and understood that (a) 1.75% of such original principal amount ($ ) shall be in the form of OID in favor of the First Subsequent Disbursement Lenders funding such First Subsequent Disbursement and shall, therefore, not be required to be funded by such First Subsequent Disbursement Lenders and (b) the payment of any fees required to be paid on the Disbursement Date of such First Subsequent Disbursement pursuant to the Credit Agreement and the other Loan Documents and all costs and expenses required to be paid on the Disbursement Date of such First Subsequent Disbursement (including pursuant to Section 6.3 of the Credit Agreement) pursuant to the Credit Agreement and the other Loan Documents may be offset against the proceeds of such First Subsequent Disbursement. Notwithstanding anything to the contrary herein or otherwise and for the avoidance of doubt, the Borrower understands and agrees that any such OID, fees, costs and/or expenses that are deducted or offset from the proceeds of such First Subsequent Disbursement shall still be deemed to be part of the principal amount of such First Subsequent Disbursement that is and will be owed by the Borrower and the other Loan Parties and shall be paid at the same time such other principal amounts of such First Subsequent Disbursement are required to be paid pursuant to the terms of the Credit Agreement and the other Loan Documents. The undersigned officer hereby certifies that, both before and after giving effect to the request above (and the use of the proceeds of such First Subsequent Disbursement), (a) that such officer is an Authorized Officer, (b) each of the conditions precedent set forth in Section 4.2 of the Credit Agreement and Section 2.2 2.2(a) of the Credit Agreement has been fully satisfied in all respects and all of the terms set forth in Section 2.2 2.2(a) of the Credit Agreement have been completely complied with, (b) all of the representations and warranties contained in the Credit Agreement and the other Loan Documents are true, correct and complete in all material respects (without duplication of any materiality qualifier contained therein) as of the Disbursement DateDate of such First Subsequent Disbursement, except to the extent that such representation or warranty expressly relates to an earlier date (in which event such representation or warranty is true, correct and complete in all material respects (without duplication of any materiality qualifier contained therein) as of such earlier date), and (c) no Default or Event of Default has occurred or would result from such Subsequent Disbursement or the use of the proceeds therefrom. 1 Amount must be not less than $5,000,000. 2 For each First Subsequent Disbursement, the Borrowing Notice must be received at least fifteen (15) Business Days in advance of the proposed funding date.
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INSURANCE BROKER. The following brokers handle the Loan Parties’ and the Loan Parties’ Subsidiaries’ property and liability insurance: Broker Contact Telephone Fax Email The Loan Parties agree to advise you of any change or modification to any of the foregoing information or any supplemental information provided on any continuation pages attached hereto, and, until such notice is received by you, you shall be entitled to rely upon such information and presume it is correct. The Loan Parties acknowledge that Agent’s your acceptance of this Perfection Certificate and any continuation pages does not imply any commitment on Agent’s or any Lender’s your part to enter into a loan transaction with the Loan Parties, and that any such commitment may only be made by an express written loan commitment, signed by each one of Agent’s and each Lender’s your authorized officers. The Loan Parties agree that this Perfection Certificate shall constitute a “Loan Document” under the Facility Agreement and a “Loan Document” under the Credit Agreement. Dated as of the date first written above LOAN PARTIES: AERIE PHARMACEUTICALSENDOLOGIX, INC., a Delaware corporation By: Name: Title: AERIE DISTRIBUTIONCVD/RMS ACQUISITION CORP., a Delaware corporation By: Name: Title: NELLIX, INC., a Delaware corporation By: Name: Title: TRIVASCULAR TECHNOLOGIES, INC., a Delaware corporation By: Name: Title: LOAN PARTIES CONTINUED: TRIVASCULAR, INC., a California corporation By: Name: Title: ENDOLOGIX CANADA, LLC, a Delaware limited liability company By: Name: Title: TRIVASCULAR SALES LLC, a Texas limited liability company By: Name: Title: RMS/ENDOLOGIX SIDEWAYS MERGER CORP., a Delaware corporation By: Name: Title: [Signature Page to Perfection Certificate] EXHIBIT C TO CREDIT AGREEMENT C-1 FORM OF BORROWING NOTICE [ ]INITIAL WARRANT [Attached] Filed as Exhibit 4.1 to the Registrant’s Current Report on Form 8-K filed April 5, [ 2017 EXHIBIT C-2 FORM OF ADDITIONAL WARRANT [Attached] This Borrowing Notice is given by Filed as Exhibit 4.1 to the Registrant’s Current Report on Form 8-K filed August 10, an Authorized Officer of Aerie Pharmaceuticals2018 EXHIBIT C-3 FORM OF AMENDED AND RESTATED INITIAL WARRANT [Attached] Filed as Exhibit 4.2 to this Current Report EXHIBIT C-4 FORM OF AMENDED AND RESTATED ADDITIONAL WARRANT [Attached] Filed as Exhibit 4.3 to this Current Report EXHIBIT D CLOSING CHECKLIST [Attached] EXHIBIT D DEERFIELD / ENDOLOGIX CLOSING CHECKLIST Facility Agreement Parties: Term Borrower Endologix, Inc., a Delaware corporation Term Guarantors (collectively with the “Borrower”), pursuant to that certain Credit Agreement dated as of July 23, 2018, by and among the Term Borrower, the other “Loan Parties from time to time party theretoParties”) See attached Schedule A Term Lenders Deerfield Private Design Fund IV, the Lenders from time to time party thereto L.P.; Deerfield Partners, L.P.; and Deerfield Private Design Fund III, L.P.L.P. Term Agent Deerfield Private Design Fund IV, X.X. Xxxxxx Xxxxxx Xxxxxx Xxxxxxxx LLP, Counsel to Term Agent DLA DLA Piper LLP (US), Counsel to the Loan Parties ABL Agreement Parties: ABL Borrowers (also referred to as Agent (as such agreement may have been amended, restated, supplemented or otherwise modified from time to time, the “Credit AgreementParties”) Endologix, Inc., a Delaware corporation, and as listed on attached Schedule A ABL Lenders Deerfield Private Design Fund IV, L.P.; Deerfield Partners, L.P.; and Deerfield Private Design Fund III, L.P. ABL Agent Deerfield ELGX Revolver, LLC Katten Xxxxxx Xxxxxx Xxxxxxxx LLP, Counsel to ABL Agent DLA DLA Piper LLP (US). Capitalized terms used herein without definition shall have the meanings set forth in the Credit Agreement. The undersigned Authorized Officer hereby gives notice to each Lender of the Borrower’s request to borrow a Subsequent Disbursement in the original principal amount of $[ ]1 on , 20 ;23 it being agreed and understood that (a) 1.75% of such original principal amount ($ ) shall be in the form of OID in favor of the Lenders funding such Subsequent Disbursement and shall, therefore, not be required to be funded by such Lenders and (b) the payment of any fees required to be paid on the Disbursement Date of such Subsequent Disbursement pursuant Counsel to the Credit Agreement and the other Loan Documents and all costs and expenses required to be paid on the Disbursement Date of such Subsequent Disbursement (including pursuant to Section 6.3 of the Credit Agreement) pursuant to the Credit Agreement and the other Loan Documents may be offset against the proceeds of such Subsequent Disbursement. Notwithstanding anything to the contrary herein or otherwise and for the avoidance of doubt, the Borrower understands and agrees that any such OID, fees, costs and/or expenses that are deducted or offset from the proceeds of such Subsequent Disbursement shall still be deemed to be part of the principal amount of such Subsequent Disbursement that is and will be owed by the Borrower and the other Loan Parties and shall be paid at the same time such other principal amounts of such Subsequent Disbursement are required to be paid pursuant to the terms of the Credit Agreement and the other Loan Documents. The undersigned officer hereby certifies that, both before and after giving effect to the request above (and the use of the proceeds of such Subsequent Disbursement), (a) that such officer is an Authorized Officer, (b) each of the conditions precedent set forth in Section 4.2 of the Credit Agreement and Section 2.2 of the Credit Agreement has been fully satisfied in all respects and all of the terms set forth in Section 2.2 of the Credit Agreement have been completely complied with, (b) all of the representations and warranties contained in the Credit Agreement and the other Loan Documents are true, correct and complete in all material respects (without duplication of any materiality qualifier contained therein) as of the Disbursement Date, except to the extent that such representation or warranty expressly relates to an earlier date (in which event such representation or warranty is true, correct and complete in all material respects (without duplication of any materiality qualifier contained therein) as of such earlier date), and (c) no Default or Event of Default has occurred or would result from such Subsequent Disbursement or the use of the proceeds therefrom. 1 Amount must be not less than $5,000,000. 2 For each Subsequent Disbursement, the Borrowing Notice must be received at least fifteen Business Days in advance of the proposed funding date.FACILITY AGREEMENT DOCUMENTS AND DELIVERABLES: Document Responsible Party Signatures Status
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