Compliance and Resolution. Borrower agrees that a failure to comply with Borrower’s obligations under this Addendum, or any other set of facts or circumstances where it has been asserted by any governmental regulatory agency that Agent, Lender and their affiliates are not entitled to hold, or exercise any significant right with respect to, any securities issued to Lender by Borrower, will constitute a breach of the obligations of Borrower with respect to any of the SBIC Act requirements under the financing agreements among Borrower, Agent and Lender. In the event of (i) a failure to comply with Borrower’s obligations under this Addendum; or (ii) an assertion by any governmental regulatory agency of a failure to comply with Borrower’s obligations under this Addendum, then (x) Agent, Lender and Borrower will meet and resolve any such issue in good faith to the satisfaction of Borrower, Agent, Lender and any governmental regulatory agency, and (y) upon request of Lender or Agent, Borrower will cooperate and assist with any assignment of the financing agreements among Hercules Technology III, L.P. and Hercules Technology Growth Capital, Inc. required for compliance with the rules and regulations under the SBIC Act. EXHIBIT A ADVANCE REQUEST To: Agent: Date: , 2013 Hercules Technology Growth Capital, Inc. (the “Agent”) 000 Xxxxxxxx Xxxxxx, Suite 310 Palo Alto, CA 94301 Facsimile: 000-000-0000 Attn: ViewRay Incorporated (“Borrower”) hereby requests from Agent and Hercules Technology III, L.P. (“Lender”) an Advance in the amount of Fifteen Million Dollars ($15,000,000) on , (the “Advance Date”) pursuant to the Loan and Security Agreement dated as of December [ ], 2013 among Borrower, Agent and Lender (the “Agreement”). Capitalized words and other terms used but not otherwise defined herein are used with the same meanings as defined in the Agreement.
Compliance and Resolution. Borrower agrees that a failure to comply with Borrower’s obligations under this Addendum, or any other set of facts or circumstances where it has been asserted by any governmental regulatory agency (or Agent or Lenders believe that there is a substantial risk of such assertion) that Agent, Lenders and their affiliates are not entitled to hold, or exercise any significant right with respect to, any securities issued to Lenders by Borrower, will constitute a breach of the obligations of Borrower under the financing agreements among Borrower, Agent and Lenders. In the event of (i) a failure to comply with Borrower’s obligations under this Addendum; or (ii) an assertion by any governmental regulatory agency (or Agent or Lenders believe that there is a substantial risk of such assertion) of a failure to comply with Borrower’s obligations under this Addendum, then (y) Agent, Lenders and Borrower will meet and resolve any such issue in good faith to the satisfaction of Borrower, Agent, Lenders, and any governmental regulatory agency, and (z) upon request of Lenders or Agent, Borrower will cooperate and assist with any assignment of the financing agreements among any Lender and Hercules Capital, Inc. ADDENDUM 3 to LOAN AND SECURITY AGREEMENT Agent and Lender Terms
Compliance and Resolution. Borrower agrees that a failure to comply with Borrower’s obligations under this addendum, or any other set of facts or circumstances where it has been asserted by any governmental regulatory agency (or Lender believes that there is a substantial risk of such assertion) that Lender and its affiliates are not entitled to hold, or exercise any significant right with respect to, any securities issued to Lender by Borrower, will constitute a breach of the obligations of Borrower under the financing agreements between Borrower and Lender. In the event of (i) a failure to comply with Borrower’s obligations under this Addendum; or (ii) an assertion by any governmental regulatory agency (or Lender believes that there is a substantial risk of such assertion) of a failure to comply with Borrower’s obligations under this Addendum, then (i) Lender and Borrower will meet and resolve any such issue in good faith to the satisfaction of Borrower, Lender, and any governmental regulatory agency, and (ii) upon request of Lender or Borrower, Borrower and/or Lender, as applicable, will cooperate and assist with any assignment of the financing agreements from Hercules Technology II, L.P. to Hercules Technology Growth Capital, Inc. so that the Term Loan and Loan Documents will no longer be subject to the SBIC Act or other SBA provision, and any such assignment (i) shall be at no cost to Borrower and (ii) shall not constitute an Event of Default under the Loan Documents. And any breach or failure to comply pursuant to the preceding portion of this paragraph or Section 7.14 of the Loan Agreement shall not constitute an Event of Default. EXHIBIT B-1 PROMISSORY NOTE $[ ],000,000 Advance Date: ___ __, 2013 Maturity Date: _____ ___, 20[ ] FOR VALUE RECEIVED, Cleveland BioLabs, Inc. (“Inc”) and BioLab 612, LLC (“LLC”), (Inc and LLC, individually and collectively referred to herein as “Borrower”) hereby promises to pay to the order of Hercules Technology II, L.P., a Delaware limited partnership or the holder of this Note (the “Lender”) at 000 Xxxxxxxx Xxxxxx, Suite 310, Palo Alto, CA 94301 or such other place of payment as the holder of this Secured Term Promissory Note (this “Promissory Note”) may specify from time to time in writing, in lawful money of the United States of America, the principal amount of [ ] Million Dollars ($[ ],000,000) or such other principal amount as Lender has advanced to Borrower, together with interest at a floating rate per annum rate equal to the greater of ...
Compliance and Resolution. Borrower agrees that a failure to comply with Borrower’s obligations under this Addendum will constitute a breach of the obligations of Borrower under the financing agreements between Borrower and the Lenders. In the event of (i) a failure to comply with Borrower’s obligations under this Addendum; or (ii) an assertion by any governmental regulatory agency (or a Lender believes that there is a substantial risk of such assertion) of a failure to comply with Borrower’s obligations under this Addendum, then (i) such Lender and Borrower will meet and resolve any such issue in good faith to the satisfaction of Borrower, such Lender, and any governmental regulatory agency, and (ii) upon request of Lender, Borrower will cooperate and assist with any assignment of the financing agreements from Hercules Technology II, L.P. to Hercules Technology Growth Capital, Inc.
Compliance and Resolution. Borrower agrees that a failure to comply with Borrower’s obligations under this Addendum, or any other set of facts or circumstances where it has been asserted by any governmental regulatory agency (or Lender believes that there is a substantial risk of such assertion) that Lender and its affiliates are not entitled to hold, or exercise any significant right with respect to, any securities issued to Lender by Borrower, will constitute a breach of the obligations of Borrower under the financing agreements between Borrower and Lender. In the event of (i) a failure to comply with Borrower’s obligations under this Addendum; or (ii) an assertion by any governmental regulatory agency (or Lender believes that there is a substantial risk of such assertion) of a failure to comply with Borrower’s obligations under this Addendum, then (i) Lender and Borrower will meet and resolve any such issue in good faith to the satisfaction of Borrower, Lender, and any governmental regulatory agency, and (ii) upon request of Lender, Borrower will cooperate and assist with any assignment of the financing agreements from Hercules Technology II, L.P. to Hercules Technology Growth Capital, Inc. ANNEX A CONSOLIDATED ADJUSTED EBITDA ADJUSTMENTS ($000s) 1Q10 2Q10 3Q10 4Q10 1Q11 2Q11 3Q11 4Q11 May-09 Jun-09 Jul-09 Aug-09 Sep-09 Oct-09 Nov-09 Dec-09 Jan-10 Feb-10 Mar-10 Apr-10 May-10 Jun-10 Jul-10 Aug-10 Sep-10 Oct-10 Nov-10 Dec-10 Jan-11 Feb-11 Mar-11 Apr-11 Daegis Excess Comp $ 0.0 $ 0.0 $ 7.5 $ 250.0 $ 0.0 $ 0.0 $ 0.0 $ 1,220.0 $ 0.0 $ 0.0 $ 0.0 $ 118.6 $ 0.0 $ 0.0 $ 0.0 $ 0.0 $ 0.0 $ 0.0 $ 0.0 $ 0.0 $ 0.0 $ 0.0 $ 0.0 $ 0.0 Other Addbacks 87.4 28.5 340.3 32.8 39.8 324.1 22.6 99.3 6.7 1.4 2.7 103.2 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 Daegis Addbacks (excl D&A) $ 87.4 $ 28.5 $ 347.8 $ 282.8 $ 39.8 $ 324.1 $ 22.6 $ 1,319.3 $ 6.7 $ 1.4 $ 2.7 $ 221.8 $ 0.0 $ 0.0 $ 0.0 $ 0.0 $ 0.0 $ 0.0 $ 0.0 $ 0.0 $ 0.0 $ 0.0 $ 0.0 $ 0.0 Unify Stock Compensation Expense $ 37.4 $ 37.4 $ 78.5 $ 52.4 $ 52.2 $ 67.5 $ 45.9 $ 52.7 $ 49.3 $ 51.3 $ 51.3 $ 56.2 $ 83.3 $ 83.3 $ 83.3 $ 100.0 $ 100.0 $ 100.0 $ 108.3 $ 108.3 $ 108.3 $ 108.3 $ 108.3 $ 108.3 Acquisition Related Cost 0.0 0.0 660.0 0.0 0.0 779.9 0.0 0.0 20.0 0.0 0.0 37.3 0.0 2,160.40 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 Unify Addbacks (excl D&A) $ 37.4 $ 37.4 $ 738.5 $ 52.4 $ 52.2 $ 847.4 $ 45.9 $ 52.7 $ 69.3 $ 51.3 $ 51.3 $ 93.5 $ 83.3 $ 2,243.7 $ 83.3 $ 100.0 $ 100.0 $ 100.0 $ 108.3 $ 108.3 $ 108.3 $ 108.3 $ 108.3 $ 108.3 Consolidated Rolli...
Compliance and Resolution. Borrower agrees that a failure to comply with Borrower’s obligations under this Side Letter Agreement, or any other set of facts or circumstances where it has been asserted by any governmental regulatory agency (or SLW Fund believes that there is a substantial risk of such assertion) that SLW Fund and its affiliates are not entitled to hold, or exercise any significant right with respect to, any Loans or securities issued to SLW Fund by Borrower, will constitute a breach of the obligations of Borrower under the financing agreements between Borrower and SLW Fund. In the event of (i) a failure to comply with Borrower’s obligations under this Side Letter Agreement; or (ii) an assertion by any governmental regulatory agency (or SLW Fund believes that there is a substantial risk of such assertion) of a failure to comply with Borrower’s obligations under this Side Letter Agreement, then (i) SLW Fund and Borrower will meet and resolve any such issue in good faith to the satisfaction of Borrower, SLW Fund, and any governmental regulatory agency, and (ii) upon request of SLW Fund, Borrower will cooperate and assist with any assignment of the financing agreements from SLW Fund to any of SLW Fund’s affiliates.
Compliance and Resolution. In the event of (i) a failure to comply with Borrower’s obligations under this Addendum; or (ii) an assertion by any governmental regulatory agency (or Lender believes that there is a substantial risk of such assertion) of a failure to comply with Borrower’s obligations under this Addendum, then Lender shall promptly assign the financing agreements from Hercules Technology II, L.P. to Hercules Technology Growth Capital, Inc. EXHIBIT A ADVANCE REQUEST To: December __, 2010 Hercules Technology Growth Capital, Inc. Hercules Technology II, L.P. 000 Xxxxxxxx Xxxxxx, Suite 310 Palo Alto, CA 94301 Facsimile: 000-000-0000 Attn: Xxxxx Xxxx BRIGHTSOURCE ENERGY, INC. (“Borrower”) hereby requests from Hercules Technology Growth Capital, Inc. and Hercules Technology II, L.P. (collectively “Lender”) two Advances in the aggregate amount of $25,000,000 (consisting of one Term Loan A Advance of $11,250,000 and one Term Loan B Advance of $13,750,000 on December 28, 2010 (the “Advance Date”) pursuant to the Loan and Guaranty Agreement between Borrower and Lender (the “Agreement”). Capitalized words and other terms used but not otherwise defined herein are used with the same meanings as defined in the Agreement. Please:
Compliance and Resolution. Borrower agrees that a failure to comply with Borrower’s obligations under this Addendum, or any other set of facts or circumstances where it has been asserted by any governmental regulatory agency (or Agent or Lender believes that there is a substantial risk of such assertion) that Agent, Lender and their affiliates are not entitled to hold, or exercise any significant right with respect to, any securities issued to Lender by Borrower, will constitute a breach of the obligations of Borrower under the financing agreements among Borrower, Agent and Lender. In the event of (i) a failure to comply with Borrower’s
Compliance and Resolution. Borrower agrees that a failure to comply with Borrower’s obligations under this Addendum, or any other set of facts or circumstances where it has been asserted by any governmental regulatory agency (or Lender believes that there is a substantial risk of such assertion) that Lender and its affiliates are not entitled to hold, or exercise any significant right with respect to, any
Compliance and Resolution. Borrower agrees that a failure to comply with Borrower’s obligations under this letter, or any other set of facts or circumstances where it has been asserted by any governmental regulatory agency (or Lender believes that there is a substantial risk of such assertion) that Lender and its affiliates are not entitled to hold, or exercise any significant right with respect to, any securities issued to Lender by Borrower, will constitute a breach of the obligations of Borrower under the financing agreements between Borrower and Lender. In the event of (i) a failure to comply with Borrower’s obligations under this letter; or (ii) an assertion by any governmental regulatory agency (or Lender believes that there is a substantial risk of such assertion) of a failure to comply with Borrower’s obligations under this letter, then (i) Lender and Borrower will meet and resolve any such issue in good faith to the satisfaction of Borrower, Lender, and any governmental regulatory agency, and (ii) upon request of Lender, Borrower will cooperate and assist with any assignment of the financing agreements from Hercules Technology II, L.P. to Hercules Technology Growth Capital, Inc.
