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 [***] Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. 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. [***] Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. 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.
Appears in 1 contract
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, Lender Lenders and their affiliates are not entitled to hold, or exercise any significant right with respect to, any securities issued to Lender Lenders 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 LenderLenders. 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 (xy) Agent, Lender Lenders and Borrower will meet and resolve any such issue in good faith to the satisfaction of Borrower, Agent, Lender Lenders, and [***] Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. any governmental regulatory agency, and (yz) upon request of Lender Lenders or Agent, Borrower will cooperate and assist with any assignment of the financing agreements among Hercules Technology III, L.P. any Lender and Hercules Technology Growth Capital, Inc.
(a) Each Lender hereby irrevocably appoints Hercules Capital, Inc. to act on its behalf as the Agent hereunder and under the other Loan Documents and irrevocably authorizes the Agent to take such actions on its behalf and to exercise such powers as are delegated to the Agent by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto. Agent shall have only those duties which are specified in this Agreement and it may perform such duties by or through its agents, representatives or employees. In performing its duties on behalf of Lenders, Agent shall exercise the same care which it would exercise in dealing with loans made for its own account, but it shall not be responsible to any Lender for the execution, effectiveness, genuineness, validity, enforceability, collectability or sufficiency of all or any of the Loan Documents, or for any representations, warranties, recitals or statements made therein or made in any written or oral statement or in any financial or other statements, instruments, reports, certificates or any other documents furnished or delivered in connection herewith or therewith by Agent to any Lender or by or on behalf of Borrower to Agent or any Lender, or be required to ascertain or inquire as to the performance or observance of any of the terms, conditions, provisions, covenants or agreements contained herein or therein, as to the use of the proceeds of the Term Loan Advances, the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document or the satisfaction of any condition set forth in Section 4 or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Agent. Agent shall not be responsible for compliance insuring the Collateral or for the payment of any taxes, assessments, charges or any other charges or liens of any nature whatsoever upon the Collateral or otherwise for the maintenance of the Collateral, except in the event Agent enters into possession of a part or all of the Collateral, in which event Agent shall preserve the part in its possession. Unless the officers of Agent acting in their capacity as officer of Agent on Borrower’s account have actual knowledge thereof or have been notified in writing thereof by Lenders, Agent shall not be required to ascertain or inquire as to the existence or possible existence of any Event of Default.
(b) Neither Agent nor any of its officers, directors, employees, attorneys, representatives or agents shall be liable to Lenders for any action taken or omitted hereunder or under any of the other Loan Documents or in connection herewith or therewith unless caused by its or their gross negligence or willful misconduct. No provision of this Agreement or of any other Loan Document shall be deemed to impose any duty or obligation on Agent to perform any act or to exercise any power in any jurisdiction in which it shall be illegal, or shall be deemed to impose any duty or obligation on Agent to perform any act or exercise any right or power if such performance or exercise (a) would subject Agent to a tax in a jurisdiction where it is not then subject to a tax or (b) would require Agent to qualify to do business in any jurisdiction where it is not so qualified. Without prejudice to the generality of the foregoing, no Lender shall have any right of action whatsoever against Agent as a result of Agent acting or (where so instructed) refraining from acting under this Agreement or under any of the other Loan Documents in accordance with the rules instructions of the Lenders. Agent shall be entitled to refrain from exercising any power, discretion or authority vested in it under this Agreement unless and regulations under until it has obtained the SBIC Actwritten instructions of the Lenders. [***] Certain information The agency hereby created shall in this document has been omitted no way impair or affect any of the rights and filed separately with the Securities and Exchange Commissionpowers of, or impose any duties or obligations upon Agent in its individual capacity. Confidential treatment has been requested with With respect to the omitted portions. 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 its participation 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 Borrowerhereunder, Agent and Lender (the “Agreement”). Capitalized words and other terms used but not otherwise defined herein are used with shall have the same meanings rights and powers hereunder as defined in any other Lender and may exercise the Agreement.same rights and powers as though it were not performing the duties and functions delegated to it hereunder and the term
Appears in 1 contract
Samples: Loan and Security Agreement (Tarsus Pharmaceuticals, 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 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, Addendum 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 (or Agent or Lender reasonably believes that there is a substantial risk of such assertion) of a failure to comply with Borrower’s obligations under this Addendum, then (xi) Agent, Lender and Borrower will meet and resolve any such issue in good faith to the satisfaction of Borrower, Agent, Lender Lender, and [***] Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. any governmental regulatory agency, and (yii) 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 In the event of an assertion 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 debt securities or loan obligations issued to Lender by Borrower, Agent, Lender and Borrower will meet and resolve any such issue in good faith to the rules satisfaction of Borrower, Agent, Lender, and regulations any governmental regulatory agency, and if such issues cannot be resolved to the reasonable satisfaction of all parties, Agent and Lender shall use their commercially reasonable efforts to transfer Lender’s interest in the debt securities or loan obligations issued by Borrower to an affiliate of Lender that is not a licensee under the SBIC Act.
1. [***] Certain Each of Lender, Agent, and Borrower (each a “PARTY”), on behalf of itself and its AFFILIATES (as defined below) (collectively, the “DISCLOSING PARTY”), may disclose to the other PARTY (or PARTIES) and its AFFILIATES (collectively, whether one or more, the “RECEIVING PARTY”) certain confidential and proprietary technical, financial, business or other information in this document has been omitted and filed separately connection with the Securities and Exchange Commission. Confidential treatment has been requested with respect or relating to the omitted portions. To: Agent: Date: , 2013 Hercules Technology Growth Capital, Inc. loan transaction governed by the Loan Agreement and related Loan Documents and exercise of remedies thereunder or as required thereby (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 “AgreementPROJECT”). Capitalized words Subject to paragraph 2, “CONFIDENTIAL INFORMATION” shall mean any and other terms used but not otherwise defined herein are used all proprietary information or material that is provided or communicated to the RECEIVING PARTY by or on behalf of the DISCLOSING PARTY in connection with the same meanings PROJECT or any discussions or negotiations with respect thereto; and any data, ideas, concepts or techniques contained therein, as defined well as any copies thereof, and shall include, without limitation, proprietary information or material related to a PARTY’S or any of its AFFILIATE’S (A) financial information, business plans, projections or strategies, property, business practices and relationships, corporate policies, procedures, processes, systems, methods of operation, or marketing plans; (B) research, development or other investigative activities; (C) regulatory and quality control practices, procedures or policies; (D) products, specifications, formulas, ingredients, pricing policies, marketing plans, product costs or promotional activities, including samples of products and the structure and utilities of final and intermediate product compositions; (E) customer, supplier or employee information or agreements; (F) medical, scientific or other technical information, including manufacturing capacities, equipment, processes and plant layout; (G) corporate, strategic, commercial, license or other agreements; or (H) inventions, innovations, improvements, know-how, trade secrets or other proprietary information. CONFIDENTIAL INFORMATION may be disclosed orally, visually, in the Agreementwriting, by delivery of materials containing CONFIDENTIAL INFORMATION or in any other form, including, without limitation, any documents, drawings, diagrams, designs, flowcharts, databases, models, plans and software (including source and object codes).
Appears in 1 contract
Samples: Loan and Security Agreement (Neos Therapeutics, 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 Agent or the Lenders believes that sf-4553578 there is a substantial risk of such assertion) that Agent, Lender the Lenders and their affiliates are not entitled to hold, or exercise any significant right with respect to, any securities issued to Lender the Lenders 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 Lenderthe 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 the Lenders believes that there is a substantial risk of such assertion) of a failure to comply with Borrower’s obligations under this Addendum, then (xi) Agent, Lender the Lenders and Borrower will meet and resolve any such issue in good faith to the satisfaction of Borrower, Agent, Lender the Lenders, and [***] Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. any governmental regulatory agency, and (yii) upon request of Lender the Lenders or Agent, Borrower will cooperate and assist with any assignment of the financing agreements among Hercules Technology IIICapital IV, L.P. and Hercules Technology Growth Capital, Inc. required for compliance with the rules and regulations under the SBIC Act. [***] Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. To: Agent: Date: , 2013 sf-4553578
(a) Each Lender hereby irrevocably appoints Hercules Technology Growth Capital, Inc. (to act on its behalf as the “Agent”) 000 Xxxxxxxx Xxxxxx, Suite 310 Palo Alto, CA 94301 Facsimile: 000-000-0000 Attn: ViewRay Incorporated (“Borrower”) hereby requests from Agent hereunder and Hercules Technology III, L.P. (“Lender”) an Advance in under the amount of Fifteen Million Dollars ($15,000,000) other Loan Documents and authorizes the Agent to take such actions on , (the “Advance Date”) pursuant its behalf and to exercise such powers as are delegated to the Agent by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto.
(b) Each Lender agrees to indemnify the Agent in its capacity as such (to the extent not reimbursed by the Loan Parties and Security Agreement dated as without limiting the obligation of December [__]the Loan Parties to do so), 2013 among Borroweraccording to its respective Term Commitment percentages (based upon the total outstanding Term Commitments) in effect on the date on which indemnification is sought under this Addendum 3, from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind whatsoever that may at any time be imposed on, incurred by or asserted against the Agent in any way relating to or arising out of, this Agreement, any of the other Loan Documents or any documents contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby or any action taken or omitted by the Agent under or in connection with any of the foregoing; The agreements in this Section shall survive the payment of the Loans and Lender (the “Agreement”). Capitalized words and all other terms used but not otherwise defined herein are used with the same meanings as defined in the Agreementamounts payable hereunder.
Appears in 1 contract
Samples: Loan and Security Agreement (Eloxx Pharmaceuticals, Inc.)
Compliance and Resolution. Borrower Bxxxxxxx agrees that a failure to comply with BorrowerBxxxxxxx’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 the Lenders believes that there is a substantial risk of such assertion) that Agent, Lender the Lenders and their affiliates are not entitled to hold, or exercise any significant right with respect to, any securities issued to Lender Lenders 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 LenderLenders. 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 (xiii) Agent, Lender Lenders and Borrower will meet and resolve any such issue in good faith to the satisfaction of Borrower, Agent, Lender Lenders, and [***] Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. any governmental regulatory agency, and (yiv) upon request of Lender the Lenders or Agent, Borrower will cooperate and assist with any assignment of the financing agreements among Hercules Technology III, L.P. any Lender and Hercules Technology Growth Capital, Inc.
(a) Each Lender hereby irrevocably appoints Hercules Capital, Inc. required for compliance with to act on its behalf as the rules Agent hereunder and regulations under the SBIC Act. [***] Certain information other Loan Documents and authorizes the Agent to take such actions on its behalf and to exercise such powers as are delegated to the Agent by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto.
(b) Each Lender agrees to indemnify the Agent in its capacity as such (to the extent not reimbursed by Bxxxxxxx and without limiting the obligation of Borrower to do so), according to its respective Term Commitment percentages (based upon the total outstanding Term Loan Commitments) in effect on the date on which indemnification is sought under this Addendum 3, from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind whatsoever that may at any time be imposed on, incurred by or asserted against the Agent in any way relating to or arising out of, this Agreement, any of the other Loan Documents or any documents contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby or any action taken or omitted by the Agent under or in connection with any of the foregoing; The agreements in this document has been omitted Section shall survive the payment of the Loans and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. 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 all other terms used but not otherwise defined herein are used with the same meanings as defined in the Agreementamounts payable hereunder.
Appears in 1 contract
Samples: Loan and Security Agreement (Finch Therapeutics Group, 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 Agent or Lenders believe that there is a substantial risk of such assertion) that Agent, Lender Lenders and their affiliates are not entitled to hold, or exercise any significant right with respect to, any securities issued to Lender Lenders 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 LenderLenders. 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 (xy) Agent, Lender Lenders and Borrower will meet and resolve any such issue in good faith to the satisfaction of Borrower, Agent, Lender Lenders, and [***] Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. any governmental regulatory agency, and (yz) upon request of Lender Lenders or Agent, Borrower will cooperate and assist with any assignment of the financing agreements among Hercules Technology III, L.P. any Lender and Hercules Technology Growth Capital, Inc.
(a) Each Lender hereby irrevocably appoints Hercules Capital, Inc. to act on its behalf as the Agent hereunder and under the other Loan Documents and irrevocably authorizes the Agent to take such actions on its behalf and to exercise such powers as are delegated to the Agent by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto. Agent shall have only those duties which are specified in this Agreement and it may perform such duties by or through its agents, representatives or employees. In performing its duties on behalf of Lenders, Agent shall exercise the same care which it would exercise in dealing with loans made for its own account, but it shall not be responsible to any Lender for the execution, effectiveness, genuineness, validity, enforceability, collectability or sufficiency of all or any of the Loan Documents, or for any representations, warranties, recitals or statements made therein or made in any written or oral statement or in any financial or other statements, instruments, reports, certificates or any other documents furnished or delivered in connection herewith or therewith by Agent to any Lender or by or on behalf of Borrower to Agent or any Lender, or be required to ascertain or inquire as to the performance or observance of any of the terms, conditions, provisions, covenants or agreements contained herein or therein, as to the use of the proceeds of the Term Loan Advances, the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document or the satisfaction of any condition set forth in Section 4 or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Agent. Agent shall not be responsible for compliance insuring the Collateral or for the payment of any taxes, assessments, charges or any other charges or liens of any nature whatsoever upon the Collateral or otherwise for the maintenance of the Collateral, except in the event Agent enters into possession of a part or all of the Collateral, in which event Agent shall preserve the part in its possession. Unless the officers of Agent acting in their capacity as officer of Agent on Borrower’s account have actual knowledge thereof or have been notified in writing thereof by Lenders, Agent shall not be required to ascertain or inquire as to the existence or possible existence of any Event of Default.
(b) Neither Agent nor any of its officers, directors, employees, attorneys, representatives or agents shall be liable to Lenders for any action taken or omitted hereunder or under any of the other Loan Documents or in connection herewith or therewith unless caused by its or their gross negligence or willful misconduct. No provision of this Agreement or of any other Loan Document shall be deemed to impose any duty or obligation on Agent to perform any act or to exercise any power in any jurisdiction in which it shall be illegal, or shall be deemed to impose any duty or obligation on Agent to perform any act or exercise any right or power if such performance or exercise (a) would subject Agent to a tax in a jurisdiction where it is not then subject to a tax or (b) would require Agent to qualify to do business in any jurisdiction where it is not so qualified. Without prejudice to the generality of the foregoing, no Lender shall have any right of action whatsoever against Agent as a result of Agent acting or (where so instructed) refraining from acting under this Agreement or under any of the other Loan Documents in accordance with the rules instructions of the Lenders. Agent shall be entitled to refrain from exercising any power, discretion or authority vested in it under this Agreement unless and regulations under until it has obtained the SBIC Actwritten instructions of the Lenders. [***] Certain information The agency hereby created shall in this document has been omitted no way impair or affect any of the rights and filed separately with the Securities and Exchange Commissionpowers of, or impose any duties or obligations upon Agent in its individual capacity. Confidential treatment has been requested with With respect to its participation in the omitted portions. To: Agent: Date: Loan Agreement hereunder, 2013 Hercules Technology Growth Capital, Inc. (Agent shall have the “Agent”) 000 Xxxxxxxx Xxxxxx, Suite 310 Palo Alto, CA 94301 Facsimile: 000-000-0000 Attn: ViewRay Incorporated (“Borrower”) hereby requests from Agent same rights and Hercules Technology III, L.P. (powers hereunder as any other Lender and may exercise the same rights and powers as though it were not performing the duties and functions delegated to it hereunder and the term “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.” or
Appears in 1 contract
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 the Lenders believes that there is a substantial risk of such assertion) that Agent, Lender the Lenders and their affiliates are not entitled to hold, or exercise any significant right with respect to, any securities issued to Lender the Lenders 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 Lenderthe 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 the Lenders believe that there is a substantial risk of such assertion) of a failure to comply with Borrower’s obligations under this Addendum, then (xi) Agent, Lender the Lenders and Borrower will meet and resolve any such issue in good faith to the satisfaction of Borrower, Agent, Lender the Lenders, and [***] Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. any governmental regulatory agency, and (yii) upon request of Lender the Lenders or Agent, Borrower will cooperate and assist with any assignment of the financing agreements among Hercules Technology III, L.P. any Lender and Hercules Technology Growth Capital, Inc.
(a) Each Lender hereby irrevocably appoints Hercules Capital, Inc. required for compliance with to act on its behalf as the rules Agent hereunder and regulations under the SBIC Act. [***] Certain information other Loan Documents and authorizes the Agent to take such actions on its behalf and to exercise such powers as are delegated to the Agent by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto.
(b) Each Lender agrees to indemnify the Agent in its capacity as such (to the extent not reimbursed by Borrower and without limiting the obligation of Borrower to do so), according to its respective Term Commitment percentages (based upon the total outstanding Term Commitments) in effect on the date on which indemnification is sought under this Addendum 3, from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind whatsoever that may at any time be imposed on, incurred by or asserted against the Agent in any way relating to or arising out of, this Agreement, any of the other Loan Documents or any documents contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby or any action taken or omitted by the Agent under or in connection with any of the foregoing; The agreements in this document has been omitted Section shall survive the payment of the Loans and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. 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 all other terms used but not otherwise defined herein are used with the same meanings as defined in the Agreementamounts payable hereunder.
Appears in 1 contract
Samples: Loan and Security Agreement (Akero Therapeutics, Inc.)
Compliance and Resolution. Borrower Xxxxxxxx agrees that a failure to comply with BorrowerXxxxxxxx’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, Lender Lenders and their affiliates are not entitled to hold, or exercise any significant right with respect to, any securities issued to Lender Lenders 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 LenderLenders. 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 (xy) Agent, Lender Xxxxxxx and Borrower will meet and resolve any such issue in good faith to the satisfaction of Borrower, Agent, Lender Lenders, and [***] Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. any governmental regulatory agency, and (yz) upon request of Lender Lenders or Agent, Borrower will cooperate and assist with any assignment of the financing agreements among Hercules Technology III, L.P. any Lender and Hercules Technology Growth Capital, Inc.
(a) Each Lender hereby irrevocably appoints Hercules Capital, Inc. to act on its behalf as the Agent hereunder and under the other Loan Documents and irrevocably authorizes the Agent to take such actions on its behalf and to exercise such powers as are delegated to the Agent by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto. Agent shall have only those duties which are specified in this Agreement and it may perform such duties by or through its agents, representatives or employees. In performing its duties on behalf of Lenders, Agent shall exercise the same care which it would exercise in dealing with loans made for its own account, but it shall not be responsible to any Lender for the execution, effectiveness, genuineness, validity, enforceability, collectability or sufficiency of all or any of the Loan Documents, or for any representations, warranties, recitals or statements made therein or made in any written or oral statement or in any financial or other statements, instruments, reports, certificates or any other documents furnished or delivered in connection herewith or therewith by Agent to any Lender or by or on behalf of Borrower to Agent or any Lender, or be required to ascertain or inquire as to the performance or observance of any of the terms, conditions, provisions, covenants or agreements contained herein or therein, as to the use of the proceeds of the Term Loan Advances, the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document or the satisfaction of any condition set forth in Section 4 or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Agent. Agent shall not be responsible for insuring the Collateral or for the payment of any taxes, assessments, charges or any other charges or liens of any nature whatsoever upon the Collateral or otherwise for the maintenance of the Collateral, except in the event Agent enters into possession of a part or all of the Collateral, in which event Agent shall preserve the part in its possession. Unless the officers of Agent acting in their capacity as officer of Agent on Xxxxxxxx’s account have actual knowledge thereof or have been notified in writing thereof by Xxxxxxx, Agent shall not be required to ascertain or inquire as to the existence or possible existence of any Event of Default.
(a) Neither Agent nor any of its officers, directors, employees, attorneys, representatives or agents shall be liable to Lenders for any action taken or omitted hereunder or under any of the other Loan Documents or in connection herewith or therewith unless caused by its or their gross negligence or willful misconduct. No provision of this Agreement or of any other Loan Document shall be deemed to impose any duty or obligation on Agent to perform any act or to exercise any power in any jurisdiction in which it shall be illegal, or shall be deemed to impose any duty or obligation on Agent to perform any act or exercise any right or power if such performance or exercise (a) would subject Agent to a tax in a jurisdiction where it is not then subject to a tax or (b) would require Agent to qualify to do business in any jurisdiction where it is not so qualified. Without prejudice to the generality of the foregoing, no Lender shall have any right of action whatsoever against Agent as a result of Agent acting or (where so instructed) refraining from acting under this Agreement or under any of the other Loan Documents in accordance with the instructions of the Lenders. Agent shall be entitled to refrain from exercising any power, discretion or authority vested in it under this Agreement unless and until it has obtained the written instructions of the Lenders. The agency hereby created shall in no way impair or affect any of the rights and powers of, or impose any duties or obligations upon Agent in its individual capacity. With respect to its participation in the Loan Agreement hereunder, Agent shall have the same rights and powers hereunder as any other Lender and may exercise the same rights and powers as though it were not performing the duties and functions delegated to it hereunder and the term “Lender” or “Lenders” or any similar term shall unless the context clearly indicates otherwise include Agent in its individual capacity.
(b) Agent may rely, and shall be fully protected in acting, or refraining to act, upon, any resolution, statement, certificate, instrument, opinion, report, notice, request, consent, order, bond or other paper or document that it has no reason to believe to be other than genuine and to have been signed or presented by the proper party or parties or, in the case of cables, telecopies and telexes, to have been sent by the proper party or parties. In the absence of its gross negligence or willful misconduct, Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to Agent and conforming to the requirements of this Agreement or any of the other Loan Documents. Agent may consult with counsel, and any opinion or legal advice of such counsel shall be full and complete authorization and protection in respect of any action taken, not taken or suffered by Agent hereunder or under any Loan Documents in accordance therewith. Agent shall have the right at any time to seek instructions concerning the administration of the Collateral from any court of competent jurisdiction. Agent shall not be under any obligation to exercise any of the rights or powers granted to Agent by this Agreement and the other Loan Documents at the request or direction of the Lenders unless Agent shall have been provided by the Lenders with adequate security and indemnity against the costs, expenses and liabilities that may be incurred by it in compliance with such request or direction.
(c) Each Lender agrees to indemnify the rules Agent in its capacity as such (to the extent not reimbursed by Xxxxxxxx and regulations without limiting the obligation of Borrower to do so), according to its respective Term Commitment percentages (based upon the total outstanding Term Commitments) in effect on the date on which indemnification is sought under this Addendum 3, from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind whatsoever that may at any time be imposed on, incurred by or asserted against the SBIC ActAgent in any way relating to or arising out of, this Agreement, any of the other Loan Documents or any documents contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby or any action taken or omitted by the Agent under or in connection with any of the foregoing. [***] Certain information The agreements in this document has been omitted Section shall survive the payment of the Loans and filed separately with all other amounts payable hereunder.
(d) To the Securities and Exchange Commission. Confidential treatment has been requested with respect to extent not reimbursed either by Borrower or from the omitted portions. 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 application of Fifteen Million Dollars ($15,000,000) on , (the “Advance Date”) Collateral proceeds pursuant to the Loan and Security Agreement dated as of December [__]Section 10.2, 2013 among Borrower, Agent and a Lender (the “AgreementIndemnified Lender”) shall be indemnified by the other Lender (an “Indemnifying Lender”). Capitalized words , on a several basis in proportion to each Lender’s pro rata portion of the Term Commitment, and each Indemnifying Xxxxxx agrees to reimburse the Indemnified Lender for the Indemnifying Xxxxxx’s pro rata share of the following items (an “Indemnified Payment”):
(i) all reasonable out-of-pocket costs and expenses of the Indemnified Lender incurred by the Indemnified Lender in connection with the discharge of its activities under this Agreement or the Loan Agreement, including reasonable legal expenses and attorneys’ fees; provided, that the Indemnified Lender shall consult with the other terms used Lender regarding the incurrence of such costs and expenses at reasonable intervals (but not otherwise defined herein are used with more often than monthly) and any such reasonable costs and expenses shall be “Claims” hereunder notwithstanding any disagreement by the other Lender as to their incurrence; and
(ii) from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever, which may be imposed on, incurred by or asserted against the Indemnified Lender in any way relating to or arising out of this Agreement, or any action taken or omitted by the Indemnified Lender hereunder; provided that the Indemnifying Lender shall not be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements, if the same meanings results from the Indemnified Lender’s gross negligence or willful misconduct or from undertaking Enforcement Actions in violation of clause (d) of Addendum 5;
(iii) provided, however, that the Indemnified Lender shall not be reimbursed or indemnified for an Indemnified Payment, except to the extent that the Indemnified Lender paid more than its ratable share of such payment. All Indemnified Payments (as defined set forth in this paragraph c) to an Indemnified Lender are intended to be paid ratably by the Agreementother Lender.
Appears in 1 contract
Compliance and Resolution. Borrower agrees that a failure to comply with Borrower’s obligations under this Addendumaddendum, or any other set of facts or circumstances where it has been asserted by any governmental regulatory agency (or Lender believes that Agent, there is a substantial risk of such assertion) that Lender and their 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 with respect to any of the SBIC Act requirements under the financing agreements among Borrower, Agent 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 (xi) Agent, Lender and Borrower will meet and resolve any such issue in good faith to the satisfaction of Borrower, AgentLender, Lender and [***] Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. any governmental regulatory agency, and (yii) upon request of Lender or AgentBorrower, Borrower and/or Lender, as applicable, will cooperate and assist with any assignment of the financing agreements among from Hercules Technology IIIII, L.P. and to Hercules Technology Growth Capital, Inc. required for compliance with so that the rules Term Loan and regulations 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 SBIC ActLoan Documents. [***] Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect And any breach or failure to comply pursuant to the omitted portionspreceding portion of this paragraph or Section 7.14 of the Loan Agreement shall not constitute an Event of Default. To: Agent: $[ ],000,000 Advance Date: ___ __, 2013 Hercules Technology Growth CapitalMaturity 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 “AgentLender”) at 000 Xxxxxxxx Xxxxxx, Suite 310 310, Palo Alto, CA 94301 Facsimile: 000-000-0000 Attn: ViewRay Incorporated or such other place of payment as the holder of this Secured Term Promissory Note (this “BorrowerPromissory Note”) hereby requests may specify from Agent and Hercules Technology IIItime to time in writing, L.P. (“Lender”) an Advance in lawful money of the United States of America, the principal amount of Fifteen [ ] Million Dollars ($15,000,000[ ],000,000) on or such other principal amount as Lender has advanced to Borrower, (the “Advance Date”) pursuant together with interest at a floating rate per annum rate equal to the greater of either (i) ten and forty-five hundredths of one percent (10.45%), or (ii) the sum of (A) ten and forty-five hundredths of one percent (10.45%), plus (B) the Prime Rate minus four and one quarter of one percent (4.25%) based upon a year consisting of 360 days, with interest computed daily based on the actual number of days in each month. This Promissory Note is the Note referred to in, and is executed and delivered in connection with, that certain Loan and Security Agreement dated as of December [__[ ], 2013 among Borrower20[ ], Agent by and between Borrower and Lender (as the same may from time to time be amended, modified or supplemented in accordance with its terms, the “Loan Agreement”). Capitalized words , and is entitled to the benefit and security of the Loan Agreement and the other terms used but not otherwise defined herein are used with the same meanings Loan Documents (as defined in the Loan Agreement), to which reference is made for a statement of all of the terms and conditions thereof. All payments shall be made in accordance with the Loan Agreement. All terms defined in the Loan Agreement shall have the same definitions when used herein, unless otherwise defined herein. An Event of Default under the Loan Agreement shall constitute a default under this Promissory Note. Borrower waives presentment and demand for payment, notice of dishonor, protest and notice of protest under the UCC or any applicable law. Borrower agrees to make all payments under this Promissory Note without setoff, recoupment or deduction and regardless of any counterclaim or defense. This Promissory Note has been negotiated and delivered to Lender and is payable in the State of California. This Promissory Note shall be governed by and construed and enforced in accordance with, the laws of the State of California, excluding any conflicts of law rules or principles that would cause the application of the laws of any other jurisdiction. BORROWER: CLEVELAND BIOLABS, INC. By: Title: BIOLAB 612, LLC By: Title: This Joinder Agreement (the “Joinder Agreement”) is made and dated as of [ ], 201[ ], and is entered into by and between__________________, a ___________ corporation (“Subsidiary”), and HERCULES TECHNOLOGY II, L.P. as a Lender.
Appears in 1 contract
Samples: Loan and Security Agreement (Cleveland Biolabs 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 Agent or the Lenders believes that there is a substantial risk of such assertion) that Agent, Lender the Lenders and their affiliates are not entitled to hold, or exercise any significant right with respect to, any securities issued to Lender the Lenders 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 Lenderthe 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 the Lenders believes that there is a substantial risk of such assertion) of a failure to comply with Borrower’s obligations under this Addendum, then (xi) Agent, Lender the Lenders and Borrower will meet and resolve any such issue in good faith to the satisfaction of Borrower, Agent, Lender the Lenders, and [***] Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. any governmental regulatory agency, and (yii) upon request of Lender the Lenders or Agent, Borrower will cooperate and assist with any assignment of the financing agreements among the Lenders
1. Each Lender hereby irrevocably appoints Hercules Technology III, L.P. and Hercules Technology Growth Capital, Inc. required for compliance with to act on its behalf as the rules Agent hereunder and regulations under the SBIC Actother Loan Documents and authorizes the Agent to take such actions on its behalf and to exercise such powers as are delegated to the Agent by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto.
2. [***] Certain information Each Lender agrees to indemnify the Agent in its capacity as such (to the extent not reimbursed by Borrower and without limiting the obligation of Borrower to do so), according to its respective Term Loan Commitment percentages (based upon the total outstanding Term Loan Commitments) in effect on the date on which indemnification is sought under this Addendum 3, from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind whatsoever that may at any time be imposed on, incurred by or asserted against the Agent in any way relating to or arising out of, this Agreement, any of the other Loan Documents or any documents contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby or any action taken or omitted by the Agent under or in connection with any of the foregoing; The agreements in this document has been omitted Section shall survive the payment of the Term Loan Advances and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. 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 all other terms used but not otherwise defined herein are used with the same meanings as defined in the Agreementamounts payable hereunder.
Appears in 1 contract
Samples: Loan and Security Agreement (Mountain Crest Acquisition Corp II)
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 Agent, there is a substantial risk of such assertion) that Lender and their its affiliates are not entitled to hold, or exercise any significant right with respect to, any securities issued to Lender by Borrower, will will, subject to the provisions in the remainder of this clause (i), constitute a breach of the obligations of Borrower with respect to any of the SBIC Act requirements under the financing agreements among Borrower, Agent 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 (xA) Agent, Lender and Borrower will meet and resolve any such issue in good faith to the satisfaction of Borrower, AgentLender, Lender and [***] Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. any governmental regulatory agency, and (yB) upon request of Lender or AgentLender, Borrower will cooperate and assist with any assignment of the financing agreements among from Hercules Technology III, L.P. and Hercules Technology Growth Capital, Inc. required for compliance with the rules and regulations under the SBIC Act. [***] Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. To: Agent: Date: , 2013 Hercules Technology Growth Capital, Inc. (the “AgentAssignment Remedy”). Notwithstanding anything to the contrary in this Agreement, pending the completion of such resolution meeting pursuant to clause (B) above, no default or Event of Default shall have, or be deemed to have, occurred, provided that if such resolution meeting does not result in a cure or waiver of any such failure to comply, the Assignment Remedy shall be effectuated and, for clarity, no default or Event of Default shall have or be deemed to have occurred. To: November 24, 2010 Hercules Technology Growth Capital, Inc. Hercules Technology III, L.P. 000 Xxxxxxxx Xxxxxx, Suite 310 Palo Alto, CA 94301 Facsimile: 000-000-0000 Attn: ViewRay Incorporated Xxxxx Xxxx PACIRA PHARMACEUTICALS, INC., a Delaware corporation and Pacira Pharmaceuticals, Inc., a California corporation (individually, a “Borrower” and collectively, the “Borrowers”) hereby requests request from Agent Hercules Technology Growth Capital, Inc. and Hercules Technology III, L.P. (collectively “Lender”) an Advance two Advances in the aggregate amount of Fifteen Million Dollars $26,250,000 (consisting of one Term Loan A Loan of $15,000,000) 11,250,000 and one Term Loan B Loan of $15,000,000 on November 24, 2010 (the “Advance Date”) pursuant to the Loan and Security Agreement dated as of December [__], 2013 among Borrower, Agent between Borrowers 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.
Appears in 1 contract
Samples: Loan and Security Agreement (Pacira Pharmaceuticals, Inc.)
Compliance and Resolution. Borrower Xxxxxxxx agrees that a failure to comply with BorrowerXxxxxxxx’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, Lender Lenders and their affiliates are not entitled to hold, or exercise any significant right with respect to, any securities issued to Lender Lenders 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 LenderLenders. 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 (xy) Agent, Lender Xxxxxxx and Borrower will meet and resolve any such issue in good faith to the satisfaction of Borrower, Agent, Lender Lenders, and [***] Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. any governmental regulatory agency, and (yz) upon request of Lender Lenders or Agent, Borrower will cooperate and assist with any assignment of the financing agreements among Hercules Technology III, L.P. any Lender and Hercules Technology Growth Capital, Inc.
(a) Each Lender hereby irrevocably appoints Hercules Capital, Inc. to act on its behalf as the Agent hereunder and under the other Loan Documents and irrevocably authorizes the Agent to take such actions on its behalf and to exercise such powers as are delegated to the Agent by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto. Agent shall have only those duties which are specified in this Agreement and it may perform such duties by or through its agents, representatives or employees. In performing its duties on behalf of Lenders, Agent shall exercise the same care which it would exercise in dealing with loans made for its own account, but it shall not be responsible to any Lender for the execution, effectiveness, genuineness, validity, enforceability, collectability or sufficiency of all or any of the Loan Documents, or for any representations, warranties, recitals or statements made therein or made in any written or oral statement or in any financial or other statements, instruments, reports, certificates or any other documents furnished or delivered in connection herewith or therewith by Agent to any Lender or by or on behalf of Borrower to Agent or any Lender, or be required to ascertain or inquire as to the performance or observance of any of the terms, conditions, provisions, covenants or agreements contained herein or therein, as to the use of the proceeds of the Term Loan Advances, the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document or the satisfaction of any condition set forth in Section 4 or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Agent. Agent shall not be responsible for insuring the Collateral or for the payment of any taxes, assessments, charges or any other charges or liens of any nature whatsoever upon the Collateral or otherwise for the maintenance of the Collateral, except in the event Agent enters into possession of a part or all of the Collateral, in which event Agent shall preserve the part in its possession. Unless the officers of Agent acting in their capacity as officer of Agent on Xxxxxxxx’s account have actual knowledge thereof or have been notified in writing thereof by Xxxxxxx, Agent shall not be required to ascertain or inquire as to the existence or possible existence of any Event of Default.
(b) Neither Agent nor any of its officers, directors, employees, attorneys, representatives or agents shall be liable to Lenders for any action taken or omitted hereunder or under any of the other Loan Documents or in connection herewith or therewith unless caused by its or their gross negligence or willful misconduct. No provision of this Agreement or of any other Loan Document shall be deemed to impose any duty or obligation on Agent to perform any act or to exercise any power in any jurisdiction in which it shall be illegal, or shall be deemed to impose any duty or obligation on Agent to perform any act or exercise any right or power if such performance or exercise (a) would subject Agent to a tax in a jurisdiction where it is not then subject to a tax or (b) would require Agent to qualify to do business in any jurisdiction where it is not so qualified. Without prejudice to the generality of the foregoing, no Lender shall have any right of action whatsoever against Agent as a result of Agent acting or (where so instructed) refraining from acting under this Agreement or under any of the other Loan Documents in accordance with the instructions of the Lenders. Agent shall be entitled to refrain from exercising any power, discretion or authority vested in it under this Agreement unless and until it has obtained the written instructions of the Lenders. The agency hereby created shall in no way impair or affect any of the rights and powers of, or impose any duties or obligations upon Agent in its individual capacity. With respect to its participation in the Loan Agreement hereunder, Agent shall have the same rights and powers hereunder as any other Lender and may exercise the same rights and powers as though it were not performing the duties and functions delegated to it hereunder and the term “Lender” or “Lenders” or any similar term shall unless the context clearly indicates otherwise include Agent in its individual capacity.
(c) Agent may rely, and shall be fully protected in acting, or refraining to act, upon, any resolution, statement, certificate, instrument, opinion, report, notice, request, consent, order, bond or other paper or document that it has no reason to believe to be other than genuine and to have been signed or presented by the proper party or parties or, in the case of cables, telecopies and telexes, to have been sent by the proper party or parties. In the absence of its gross negligence or willful misconduct, Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to Agent and conforming to the requirements of this Agreement or any of the other Loan Documents. Agent may consult with counsel, and any opinion or legal advice of such counsel shall be full and complete authorization and protection in respect of any action taken, not taken or suffered by Agent hereunder or under any Loan Documents in accordance therewith. Agent shall have the right at any time to seek instructions concerning the administration of the Collateral from any court of competent jurisdiction. Agent shall not be under any obligation to exercise any of the rights or powers granted to Agent by this Agreement and the other Loan Documents at the request or direction of the Lenders unless Agent shall have been provided by the Lenders with adequate security and indemnity against the costs, expenses and liabilities that may be incurred by it in compliance with such request or direction.
(d) Each Lender agrees to indemnify the rules Agent in its capacity as such (to the extent not reimbursed by Xxxxxxxx and regulations without limiting the obligation of Borrower to do so), according to its respective Term Commitment percentages (based upon the total outstanding Term Commitments) in effect on the date on which indemnification is sought under this Addendum 3, from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind whatsoever that may at any time be imposed on, incurred by or asserted against the SBIC ActAgent in any way relating to or arising out of, this Agreement, any of the other Loan Documents or any documents contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby or any action taken or omitted by the Agent under or in connection with any of the foregoing. [***] Certain information The agreements in this document has been omitted Section shall survive the payment of the Loans and filed separately with all other amounts payable hereunder.
(e) To the Securities and Exchange Commission. Confidential treatment has been requested with respect to extent not reimbursed either by Borrower or from the omitted portions. 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 application of Fifteen Million Dollars ($15,000,000) on , (the “Advance Date”) Collateral proceeds pursuant to the Loan and Security Agreement dated as of December [__]Section 10.2, 2013 among Borrower, Agent and a Lender (the “AgreementIndemnified Lender”) shall be indemnified by the other Lender (an “Indemnifying Lender”). Capitalized words , on a several basis in proportion to each Lender’s pro rata portion of the Term Commitment, and other terms used but not otherwise defined herein are used with each Indemnifying Xxxxxx agrees to reimburse the same meanings as defined in Indemnified Lender for the Agreement.Indemnifying Xxxxxx’s pro rata share of the following items (an “Indemnified Payment”):
Appears in 1 contract
Compliance and Resolution. Each Borrower agrees that a failure to comply with Borrower’s Borrowers’ 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 the Lenders believes that there is a substantial risk of such assertion) that Agent, Lender the Lenders and their affiliates are not entitled to hold, or exercise any significant right with respect to, any securities issued to Lender the Lenders by BorrowerBorrowers, will constitute a breach of the obligations of Borrower with respect to any of the SBIC Act requirements Borrowers under the financing agreements among BorrowerBorrowers, Agent and Lenderthe Lenders. In the event of (i) a failure to comply with Borrower’s Borrowers’ obligations under this Addendum; or (ii) an assertion by any governmental regulatory agency (or Agent or the Lenders believes that there is a substantial risk of such assertion) of a failure to comply with Borrower’s Borrowers’ obligations under this Addendum, then (xi) Agent, Lender the Lenders and Borrower Borrowers will meet and resolve any such issue in good faith to the satisfaction of BorrowerBorrowers, Agent, Lender the Lenders, and [***] Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. any governmental regulatory agency, and (yii) upon request of Lender the Lenders or Agent, Borrower Borrowers will cooperate and assist with any assignment of the financing agreements among Hercules Technology III, L.P. and Hercules Technology Growth Capital, Inc.
(a) Each Lender hereby irrevocably appoints Hercules Capital, Inc. required for compliance with to act on its behalf as the rules Agent hereunder and regulations under the SBIC Act. [***] Certain information other Loan Documents and authorizes the Agent to take such actions on its behalf and to exercise such powers as are delegated to the Agent by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto.
(b) Each Lender agrees to indemnify the Agent in its capacity as such (to the extent not reimbursed by Borrowers and without limiting the obligation of Borrowers to do so), according to its respective Term Commitment percentages (based upon the total outstanding Term Commitments) in effect on the date on which indemnification is sought under this Addendum 3, from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind whatsoever that may at any time be imposed on, incurred by or asserted against the Agent in any way relating to or arising out of, this Agreement, any of the other Loan Documents or any documents contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby or any action taken or omitted by the Agent under or in connection with any of the foregoing; The agreements in this document has been omitted Section shall survive the payment of the Loans and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. 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 all other terms used but not otherwise defined herein are used with the same meanings as defined in the Agreementamounts payable hereunder.
Appears in 1 contract
Samples: Loan and Security Agreement (Proteostasis Therapeutics, 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 Agent, there is a substantial risk of such assertion) that Lender and their its affiliates are not entitled to hold, or exercise any significant right with respect to, any securities issued to Lender by Borrower, will will, subject to the provisions in the remainder of this clause (i), constitute a breach of the obligations of Borrower with respect to any of the SBIC Act requirements under the financing agreements among Borrower, Agent 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 (xA) Agent, Lender and Borrower will meet and resolve any such issue in good faith to the satisfaction of Borrower, AgentLender, Lender and [***] Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. any governmental regulatory agency, and (yB) upon request of Lender or AgentLender, Borrower will cooperate and assist with any assignment of the financing agreements among from Hercules Technology III, L.P. and Hercules Technology Growth Capital, Inc. required for compliance with the rules and regulations under the SBIC Act. [***] Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. To: Agent: Date: , 2013 Hercules Technology Growth Capital, Inc. (the “AgentAssignment Remedy”). Notwithstanding anything to the contrary in this Agreement, pending the completion of such resolution meeting pursuant to clause (B) above, no default or Event of Default shall have, or be deemed to have, occurred, provided that if such resolution meeting does not result in a cure or waiver of any such failure to comply, the Assignment Remedy shall be effectuated and, for clarity, no default or Event of Default shall have or be deemed to have occurred. To: , 201 Hercules Technology III, L.P. 000 Xxxxxxxx Xxxxxx, Suite 310 Palo Alto, CA 94301 Facsimile: 000-000-0000 Attn: ViewRay Incorporated Xxxxx Xxxx BIND THERAPEUTICS, INC., a Delaware corporation (“Borrower”) hereby requests request from Agent and Hercules Technology III, L.P. (collectively “Lender”) an Advance in the aggregate amount of Fifteen Million Dollars ($15,000,000) $ on , 201 (the “Advance Date”) pursuant to the Amended and Restated Loan and Security Agreement dated as of December [__], 2013 among Borrower, Agent between Borrowers 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.
Appears in 1 contract
Samples: Loan and Security Agreement (BIND Therapeutics, 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 Agent or the Lenders believes that there is a substantial risk of such assertion) that Agent, Lender the Lenders and their affiliates are not entitled to hold, or exercise any significant right with respect to, any securities issued to Lender the Lenders 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 Lenderthe 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 the Lenders believes that there is a substantial risk of such assertion) of a failure to comply with Borrower’s obligations under this Addendum, then (xi) Agent, Lender the Lenders and Borrower will meet and resolve any such issue in good faith to the satisfaction of Borrower, Agent, Lender the Lenders, and [***] Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. any governmental regulatory agency, and (yii) upon request of Lender the Lenders 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.
i. Each Lender hereby irrevocably appoints Hercules Capital, Inc. required for compliance with to act on its behalf as the rules Agent hereunder and regulations under the SBIC Actother Loan Documents and authorizes the Agent to take such actions on its behalf and to exercise such powers as are delegated to the Agent by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto.
ii. [***] Certain information Each Lender agrees to indemnify the Agent in its capacity as such (to the extent not reimbursed by Borrower and without limiting the obligation of Borrower to do so), according to its respective Term Commitment percentages (based upon the total outstanding Term Loan Commitments) in effect on the date on which indemnification is sought under this Addendum 3, from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind whatsoever that may at any time be imposed on, incurred by or asserted against the Agent in any way relating to or arising out of, this Agreement, any of the other Loan Documents or any documents contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby or any action taken or omitted by the Agent under or in connection with any of the foregoing; The agreements in this document has been omitted Section shall survive the payment of the Loans and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. 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 all other terms used but not otherwise defined herein are used with the same meanings as defined in the Agreementamounts payable hereunder.
Appears in 1 contract
Samples: Loan and Security Agreement (Codiak BioSciences, 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 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 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 (or Agent 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 (xi) Agent, Lender and Borrower will meet and resolve any such issue in good faith to the satisfaction of Borrower, Agent, Lender Lender, and [***] Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. any governmental regulatory agency, and (yii) 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 $[ ],000,000 Advance Date: ___ __, 20[ ] Term Loan Maturity Date: ___ __, 20[ ] FOR VALUE RECEIVED, Paratek Pharmaceuticals, Inc., a Delaware corporation, and Paratek Pharma, LLC, a Delaware limited liability company, for compliance with themselves and each of their Qualified Subsidiaries (individually and collectively, jointly and severally, the rules and regulations under the SBIC Act. [***] Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect “Borrower”) hereby promises to pay to the omitted portions. To: Agent: Date: , 2013 order of Hercules Technology Growth Capital, Inc. Inc., a Maryland corporation or the holder of this Note (the “Lender”) at 400 Xxxxxxxx Xxxxxx, Suite 310, Palo Alto, CA 94301 or such other place of payment as the holder of this Secured Term Promissory Note (this “Promissory Note”) may specify from time to time in writing, in lawful money of the United States of America, the principal amount of [ ] Million Dollars ($[ ],000,000) or such other principal amount as Lender has advanced to Borrower, together with interest at a rate as set forth in Section 2.1(c) of the Loan Agreement based upon a year consisting of 360 days, with interest computed daily based on the actual number of days in each month. This Promissory Note is the Note referred to in, and is executed and delivered in connection with, that certain Amended and Restated Loan and Security Agreement dated June 27, 2019, by and among Borrower, Hercules Capital, Inc., a Maryland corporation (the “Agent”) 000 and the several banks and other financial institutions or entities from time to time party thereto as lender (as the same may from time to time be amended, modified or supplemented in accordance with its terms, the “Loan Agreement”), and is entitled to the benefit and security of the Loan Agreement and the other Loan Documents (as defined in the Loan Agreement), to which reference is made for a statement of all of the terms and conditions thereof. All payments shall be made in accordance with the Loan Agreement. All terms defined in the Loan Agreement shall have the same definitions when used herein, unless otherwise defined herein. An Event of Default under the Loan Agreement shall constitute a default under this Promissory Note. Borrower waives presentment and demand for payment, notice of dishonor, protest and notice of protest under the UCC or any applicable law. Borrower agrees to make all payments under this Promissory Note without setoff, recoupment or deduction and regardless of any counterclaim or defense. This Promissory Note has been negotiated and delivered to Lender and is payable in the State of California. This Promissory Note shall be governed by and construed and enforced in accordance with, the laws of the State of California, excluding any conflicts of law rules or principles that would cause the application of the laws of any other jurisdiction. BORROWER FOR ITSELF: PARATEK PHARMACEUTICALS, INC. By: Title: PARATEK PHARMA, LLC By: Title: Hercules Capital, Inc. 400 Xxxxxxxx Xxxxxx, Suite 310 Palo Alto, CA 94301 Facsimile: 000-000-0000 Attn: ViewRay Incorporated (“Borrower”) hereby requests from Agent Reference is made to that certain Amended 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 Restated Loan and Security Agreement dated June 27, 2019 and the Loan Documents (as of December [__]defined therein) entered into in connection with such Amended and Restated Loan and Security Agreement all as may be amended from time to time (hereinafter referred to collectively as the “Loan Agreement”) by and among Hercules Capital, 2013 among BorrowerInc., Agent the several banks and other financial institutions or entities from time to time party thereto (collectively, the “Lender”) and Hercules Capital, Inc., as agent for the Lender (the “AgreementAgent”)) and Paratek Pharmaceuticals, Inc. and Paratek Pharma, LLC (individually and collectively, jointly and severally, the “Borrower”) as Borrower. Capitalized words and other All capitalized terms used but not otherwise defined herein are used with shall have the same meanings meaning as defined in the Loan Agreement. The undersigned is an Officer of Borrower, knowledgeable of all Borrower financial matters, and is authorized to provide certification of information regarding Borrower; hereby certifies, in such capacity, that in accordance with the terms and conditions of the Loan Agreement, except as set forth below, (i) Borrower is in compliance for the period ending ________ of all covenants, conditions and terms and (ii) hereby reaffirms that all representations and warranties contained therein are true and correct on and as of the date of this Compliance Certificate with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, after giving effect in all cases to any standard(s) of materiality contained in the Loan Agreement as to such representations and warranties. Attached are the required documents supporting the above certification. The undersigned further certifies that these are prepared in accordance with GAAP (except for the absence of footnotes with respect to unaudited financial statement and subject to normal year end adjustments) and are consistent from one period to the next except as explained below. EXCEPTION(S): REPORTING REQUIREMENT REQUIRED CHECK IF ATTACHED Interim Financial Statements Monthly within 30 days Interim Financial Statements Quarterly within 45 days Audited Financial Statements FYE within 90 days FINANCIAL COVENANT REQUIRED ACTUAL Cash Management Lesser of (i) one (1) times the outstanding Secured Obligations of Borrower to Lender or (ii) one hundred percent (100%) of all cash of Borrower and its Subsidiaries (other than cash held in (a) Excluded Accounts, (b) accounts maintained by an SPE in the ordinary course or (c) other accounts in an aggregate amount not in excess of One Hundred Thousand Dollars ($100,000.00)). Minimum Cash/Net Revenue (prior to the occurrence of the 2019 Extension Event) Either: (i) ($25,000,000)maintain at all times, in an account in the name of Borrower and subject to an Account Control Agreement in favor of Agent, tested at all times, unrestricted and unencumbered cash in an amount equal to the lesser of (a) Twenty-Five Million Dollars ($25,000,000.00), and (b) one (1) times the outstanding Secured Obligations of Borrower to Lender or (ii) achieve, calculated on a trailing six (6) month basis and tested as of the last day of eachthe calendar quarter, net revenue (determinedmonth most recently ended prior to any date of determination for which financial statements are required to be delivered in accordance with GAAP) from the sale of its Omadacycline productSection 7.1, as applicable, Net Product Revenue of no less than eighty-five percent (85.0%) of the projected net revenues set forth in the Forecast. Cash (after the occurrence of the 2019 Extension Event) One (1) times the outstanding Secured Obligations of Borrower to Lender in an account in the name of Borrower and subject to an Account Control Agreement INELIGIBLE SUBSIDIARIES Name of Ineligible Subsidiary Value of Assets Annual Revenue Very Truly Yours, PARATEK PHARMACEUTICALS, INC. By: Name: Title: PARATEK PHARMA, LLC By: Name: Title: This Joinder Agreement (the “Joinder Agreement”) is made and dated as of [ ], 20[ ], and is entered into by and between [ ], a [ ] (“Subsidiary”), and HERCULES CAPITAL, INC., a Maryland corporation (as “Agent”).
Appears in 1 contract
Samples: Loan and Security Agreement (Paratek Pharmaceuticals, 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 Agent or the Lenders believes that there is a substantial risk of such assertion) that Agent, Lender the Lenders and their affiliates are not entitled to hold, or exercise any significant right with respect to, any securities issued to Lender the Lenders 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 Lenderthe 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 the Lenders believes that there is a substantial risk of such assertion) of a failure to comply with Borrower’s obligations under this Addendum, then (xi) Agent, Lender the Lenders and Borrower will meet and resolve any such issue in good faith to the satisfaction of Borrower, Agent, Lender the Lenders, and [***] Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. any governmental regulatory agency, and (yii) upon request of Lender the Lenders 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.
(a) Each Lender hereby irrevocably appoints Hercules Capital, Inc. required for compliance with to act on its behalf as the rules Agent hereunder and regulations under the SBIC Act. [***] Certain information other Loan Documents and authorizes the Agent to take such actions on its behalf and to exercise such powers as are delegated to the Agent by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto.
(b) Each Lender agrees to indemnify the Agent in its capacity as such (to the extent not reimbursed by Borrower and without limiting the obligation of Borrower to do so), according to its respective Term Commitment percentages (based upon the total outstanding Term Loan Commitments) in effect on the date on which indemnification is sought under this Addendum 3, from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind whatsoever that may at any time be imposed on, incurred by or asserted against the Agent in any way relating to or arising out of, this Agreement, any of the other Loan Documents or any documents contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby or any action taken or omitted by the Agent under or in connection with any of the foregoing; The agreements in this document has been omitted Section shall survive the payment of the Loans and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. 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 all other terms used but not otherwise defined herein are used with the same meanings as defined in the Agreementamounts payable hereunder.
Appears in 1 contract
Samples: Loan and Security Agreement (Codiak BioSciences, 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 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 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 (or Agent 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 (xi) Agent, Lender and Borrower will meet and resolve any such issue in good faith to the satisfaction of Borrower, Agent, Lender Lender, and [***] Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. any governmental regulatory agency, and (yii) 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 $[ ],000,000 Advance Date: ___ __, 20[ ] Maturity Date: ___ __, 20[ ] FOR VALUE RECEIVED, Paratek Pharmaceuticals, Inc., a Delaware corporation, and Paratek Pharma, LLC, a Delaware limited liability company, for compliance with themselves and each of their Qualified Subsidiaries (individually and collectively, jointly and severally, the rules and regulations under the SBIC Act. [***] Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect “Borrower”) hereby promises to pay to the omitted portions. To: Agent: Date: , 2013 order of Hercules Technology Growth Capital, Inc. Inc., a Maryland corporation or the holder of this Note (the “Lender”) at 000 Xxxxxxxx Xxxxxx, Suite 310, Palo Alto, CA 94301 or such other place of payment as the holder of this Secured Term Promissory Note (this “Promissory Note”) may specify from time to time in writing, in lawful money of the United States of America, the principal amount of [ ] Million Dollars ($[ ],000,000) or such other principal amount as Lender has advanced to Borrower, together with interest at a rate as set forth in Section 2.1(c) of the Loan Agreement based upon a year consisting of 360 days, with interest computed daily based on the actual number of days in each month. This Promissory Note is the Note referred to in, and is executed and delivered in connection with, that certain Amended and Restated Loan and Security Agreement dated June 27, 2019, by and among Borrower, Hercules Capital, Inc., a Maryland corporation (the “Agent”) and the several banks and other financial institutions or entities from time to time party thereto as lender (as the same may from time to time be amended, modified or supplemented in accordance with its terms, the “Loan Agreement”), and is entitled to the benefit and security of the Loan Agreement and the other Loan Documents (as defined in the Loan Agreement), to which reference is made for a statement of all of the terms and conditions thereof. All payments shall be made in accordance with the Loan Agreement. All terms defined in the Loan Agreement shall have the same definitions when used herein, unless otherwise defined herein. An Event of Default under the Loan Agreement shall constitute a default under this Promissory Note. Borrower waives presentment and demand for payment, notice of dishonor, protest and notice of protest under the UCC or any applicable law. Borrower agrees to make all payments under this Promissory Note without setoff, recoupment or deduction and regardless of any counterclaim or defense. This Promissory Note has been negotiated and delivered to Lender and is payable in the State of California. This Promissory Note shall be governed by and construed and enforced in accordance with, the laws of the State of California, excluding any conflicts of law rules or principles that would cause the application of the laws of any other jurisdiction. BORROWER FOR ITSELF: PARATEK PHARMACEUTICALS, INC. By: Title: PARATEK PHARMA, LLC By: Title: Hercules Capital, Inc. 000 Xxxxxxxx Xxxxxx, Suite 310 Palo Alto, CA 94301 Facsimile: 000-000-0000 Attn: ViewRay Incorporated (“Borrower”) hereby requests from Agent Reference is made to that certain Amended 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 Restated Loan and Security Agreement dated June 27, 2019 and the Loan Documents (as of December [__]defined therein) entered into in connection with such Amended and Restated Loan and Security Agreement all as may be amended from time to time (hereinafter referred to collectively as the “Loan Agreement”) by and among Hercules Capital, 2013 among BorrowerInc., Agent the several banks and other financial institutions or entities from time to time party thereto (collectively, the “Lender”) and Hercules Capital, Inc., as agent for the Lender (the “AgreementAgent”)) and Paratek Pharmaceuticals, Inc. and Paratek Pharma, LLC (individually and collectively, jointly and severally, the “Borrower”) as Borrower. Capitalized words and other All capitalized terms used but not otherwise defined herein are used with shall have the same meanings meaning as defined in the Loan Agreement.. The undersigned is an Officer of Borrower, knowledgeable of all Borrower financial matters, and is authorized to provide certification of information regarding Borrower; hereby certifies, in such capacity, that in accordance with the terms and conditions of the Loan Agreement, except as set forth below, (i) Borrower is in compliance for the period ending ___________ of all covenants, conditions and terms and (ii) hereby reaffirms that all representations and warranties contained therein are true and correct on and as of the date of this Compliance Certificate with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, after giving effect in all cases to any standard(s) of materiality contained in the Loan Agreement as to such representations and warranties. Attached are the required documents supporting the above certification. The undersigned further certifies that these are prepared in accordance with GAAP (except for the absence of footnotes with respect to unaudited financial statement and subject to normal year end adjustments) and are consistent from one period to the next except as explained below. EXCEPTION(S):___________________________________________________________________________________________________________________________________________________________________________________________________________________________ REPORTING REQUIREMENT REQUIRED CHECK IF ATTACHED Interim Financial Statements Monthly within 30 days Interim Financial Statements Quarterly within 45 days Audited Financial Statements FYE within 90 days FINANCIAL COVENANT REQUIRED ACTUAL Cash Management Lesser of (i) one (1) times the outstanding Secured Obligations of Borrower to Lender or (ii) one hundred percent (100%) of all cash of Borrower and its Subsidiaries (other than cash held in (a) Excluded Accounts, (b) accounts maintained by an SPE in the ordinary course or (c) other accounts in an aggregate amount not in excess of One Hundred Thousand Dollars ($100,000.00)). Minimum Cash/Net Revenue (prior to the occurrence of the 2019 Extension Event) Either (i) ($25,000,000) in an account subject to an Account Control Agreement in favor of Agent, tested at all times, or (ii) achieve, calculated on a trailing six (6) month basis and tested as of the last day of each calendar quarter, net revenue (determined in accordance with GAAP) from the sale of its Omadacycline product of no less than eighty-five percent (85.0%) of the projected net revenues set forth in the Forecast. Cash (after the occurrence of the 2019 Extension Event) One (1) times the outstanding Secured Obligations of Borrower to Lender in an account in the name of Borrower and subject to an Account Control Agreement INELIGIBLE SUBSIDIARIES Very Truly Yours, PARATEK PHARMACEUTICALS, INC. By: ____________________________ Name: _____________________________ Title:______________________________ PARATEK PHARMA, LLC By: ____________________________ Name: _____________________________ Title:______________________________
Appears in 1 contract
Samples: Loan and Security Agreement (Paratek Pharmaceuticals, Inc.)
Compliance and Resolution. Borrower Xxxxxxxx agrees that a failure to comply with BorrowerXxxxxxxx’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 believes that there is a substantial risk of such assertion) that Agent, Lender Lenders and their affiliates are not entitled to hold, or exercise any significant right with respect to, any securities issued to Lender Lenders 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 LenderLenders. 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 (xi) Agent, Lender Lenders and Borrower will meet and resolve any such issue in good faith to the satisfaction of Borrower, Agent, Lender Lenders, and [***] Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. any governmental regulatory agency, and (yii) upon request of Lender Lenders 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.
(a) Each Lender hereby irrevocably appoints Hercules Capital, Inc. to act on its behalf as Agent xxxxxxxxx and under the other Loan Documents and irrevocably authorizes Agent to take such actions on its behalf and to exercise such powers as are delegated to Agent by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto. Agent shall have only those duties which are specified in this Agreement and it may perform such duties by or through its agents, representatives or employees. In performing its duties on behalf of Lenders, Agent shall exercise the same care which it would exercise in dealing with loans made for its own account, but it shall not be responsible to any Lender for the execution, effectiveness, genuineness, validity, enforceability, collectability or sufficiency of all or any of the Loan Documents, or for any representations, warranties, recitals or statements made therein or made in any written or oral statement or in any financial or other statements, instruments, reports, certificates or any other documents furnished or delivered in connection herewith or therewith by Agent to any Lender or by or on behalf of Borrower to Agent or any Lender, or be required to ascertain or inquire as to the performance or observance of any of the terms, conditions, provisions, covenants or agreements contained herein or therein, as to the use of the proceeds of the Term Loan Advances, the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document or the satisfaction of any condition set forth in Section 4 or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to Agent. Agent shall not be responsible for insuring the Collateral or for the payment of any Taxes, assessments, charges or any other charges or liens of any nature whatsoever upon the Collateral or otherwise for the maintenance of the Collateral, except in the event Agent enters into possession of a part or all of the Collateral, in which event Agent shall preserve the part in its possession. Unless the officers of Agent acting in their capacity as officer of Agent on Xxxxxxxx’s account have actual knowledge thereof or have been notified in writing thereof by Xxxxxxx, Agent shall not be required to ascertain or inquire as to the existence or possible existence of any Event of Default.
(b) Neither Agent nor any of its officers, directors, employees, attorneys, representatives or agents shall be liable to Lenders for any action taken or omitted hereunder or under any of the other Loan Documents or in connection herewith or therewith unless caused by its or their gross negligence or willful misconduct. No provision of this Agreement or of any other Loan Document shall be deemed to impose any duty or obligation on Agent to perform any act or to exercise any power in any jurisdiction in which it shall be illegal, or shall be deemed to impose any duty or obligation on Agent to perform any act or exercise any right or power if such performance or exercise (a) would subject Agent to a Tax in a jurisdiction where it is not then subject to a Tax or (b) would require Agent to qualify to do business in any jurisdiction where it is not so qualified. Without prejudice to the generality of the foregoing, no Lender shall have any right of action whatsoever against Agent as a result of Agent acting or (where so instructed) refraining from acting under this Agreement or under any of the other Loan Documents in accordance with the instructions of Xxxxxxx. Agent shall be entitled to refrain from exercising any power, discretion or authority vested in it under this Agreement unless and until it has obtained the written instructions of Xxxxxxx. The agency hereby created shall in no way impair or affect any of the rights and powers of, or impose any duties or obligations upon Agent in its individual capacity. With respect to its participation in the Loan Agreement hereunder, Agent shall have the same rights and powers hereunder as any other Lender and may exercise the same rights and powers as though it were not performing the duties and functions delegated to it hereunder and the term “Lender” or “Lenders” or any similar term shall unless the context clearly indicates otherwise include Agent in its individual capacity.
(c) Agent may rely, and shall be fully protected in acting, or refraining to act, upon, any resolution, statement, certificate, instrument, opinion, report, notice, request, consent, order, bond or other paper or document that it has no reason to believe to be other than genuine and to have been signed or presented by the proper party or parties or, in the case of cables, telecopies and telexes, to have been sent by the proper party or parties. In the absence of its gross negligence or willful misconduct, Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to Agent and conforming to the requirements of this Agreement or any of the other Loan Documents. Agent may consult with counsel, and any opinion or legal advice of such counsel shall be full and complete authorization and protection in respect of any action taken, not taken or suffered by Agent hereunder or under any Loan Documents in accordance therewith. Agent shall have the right at any time to seek instructions concerning the administration of the Collateral from any court of competent jurisdiction. Agent shall not be under any obligation to exercise any of the rights or powers granted to Agent by this Agreement and the other Loan Documents at the request or direction of Lenders unless Agent shall have been provided by Lenders with adequate security and indemnity against the costs, expenses and liabilities that may be incurred by it in compliance with such request or direction.
(d) Each Lender agrees to indemnify Agent in its capacity as such (to the rules extent not reimbursed by Borrower and regulations without limiting the obligation of Borrower to do so), according to its respective Term Commitment percentages (based upon the total outstanding Term Commitments) in effect on the date on which indemnification is sought under this Addendum 3, from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind whatsoever that may at any time be imposed on, incurred by or asserted against Agent in any way relating to or arising out of, this Agreement, any of the SBIC Act. [***] Certain information other Loan Documents or any documents contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby or any action taken or omitted by Agent under or in connection with any of the foregoing; The agreements in this document has been omitted Section shall survive the payment of the Loans and filed separately with all other amounts payable hereunder.
(e) To the Securities and Exchange Commission. Confidential treatment has been requested with respect to extent not reimbursed either by Borrower or from the omitted portions. 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 application of Fifteen Million Dollars ($15,000,000) on , (the “Advance Date”) Collateral proceeds pursuant to the Loan and Security Agreement dated as of December [__]Section 10.2, 2013 among Borrower, Agent and a Lender (the “AgreementIndemnified Lender”) shall be indemnified by the other Lender (an “Indemnifying Lender”). Capitalized words , on a several basis in proportion to each Lender’s pro rata portion of the Term Commitment, and each Indemnifying Xxxxxx agrees to reimburse the Indemnified Lender for the Indemnifying Lender’s pro rata share of the following items (an “Indemnified Payment”):
(i) all reasonable out-of-pocket costs and expenses of the Indemnified Lender incurred by the Indemnified Lender in connection with the discharge of its activities under this Agreement or the Loan Agreement, including reasonable legal expenses and attorneys’ fees; provided, that the Indemnified Lender shall consult with the other terms used Lender regarding the incurrence of such costs and expenses at reasonable intervals (but not otherwise defined herein more often than monthly) and any such reasonable costs and expenses shall be “Claims” hereunder notwithstanding any disagreement by the other Lender as to their incurrence; and
(ii) from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever, which may be imposed on, incurred by or asserted against the Indemnified Lender in any way relating to or arising out of this Agreement, or any action taken or omitted by the Indemnified Lender hereunder; provided, however, that the Indemnified Lender shall not be reimbursed or indemnified for an Indemnified Payment, except to the extent that the Indemnified Lender paid more than its ratable share of such payment. All Indemnified Payments as set forth in this clause (e) to an Indemnified Lender are used with intended to be paid ratably by the same meanings as defined in the Agreementother Lender.
(f) [Reserved.]
(g) [Reserved.]
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Compliance and Resolution. Borrower Bxxxxxxx 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 believes that there is a substantial risk of such assertion) that Agent, Lender Lenders and their affiliates are not entitled to hold, or exercise any significant right with respect to, any securities issued to Lender Lenders 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 LenderLenders. 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 (xi) Agent, Lender Lenders and Borrower will meet and resolve any such issue in good faith to the satisfaction of Borrower, Agent, Lender Lenders, and [***] Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. any governmental regulatory agency, and (yii) upon request of Lender Lenders or Agent, Borrower will cooperate and assist with any assignment of the financing agreements among Hercules Technology IIISBIC V, L.P. and Hercules Technology Growth Capital, Inc.
(a) Each Lender hereby irrevocably appoints Hercules Capital, Inc. to act on its behalf as Agent hereunder and under the other Loan Documents and irrevocably authorizes Agent to take such actions on its behalf and to exercise such powers as are delegated to Agent by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto. Agent shall have only those duties which are specified in this Agreement and it may perform such duties by or through its agents, representatives or employees. In performing its duties on behalf of Lenders, Agent shall exercise the same care which it would exercise in dealing with loans made for its own account, but it shall not be responsible to any Lender for the execution, effectiveness, genuineness, validity, enforceability, collectability or sufficiency of all or any of the Loan Documents, or for any representations, warranties, recitals or statements made therein or made in any written or oral statement or in any financial or other statements, instruments, reports, certificates or any other documents furnished or delivered in connection herewith or therewith by Agent to any Lender or by or on behalf of Borrower to Agent or any Lender, or be required to ascertain or inquire as to the performance or observance of any of the terms, conditions, provisions, covenants or agreements contained herein or therein, as to the use of the proceeds of the Term Loan Advances, the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document or the satisfaction of any condition set forth in Section 4 or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to Agent. Agent shall not be responsible for insuring the Collateral or for the payment of any Taxes, assessments, charges or any other charges or liens of any nature whatsoever upon the Collateral or otherwise for the maintenance of the Collateral, except in the event Agent enters into possession of a part or all of the Collateral, in which event Agent shall preserve the part in its possession. Unless the officers of Agent acting in their capacity as officer of Agent on Borrower’s account have actual knowledge thereof or have been notified in writing thereof by Lxxxxxx, Agent shall not be required to ascertain or inquire as to the existence or possible existence of any Event of Default.
(b) Neither Agent nor any of its officers, directors, employees, attorneys, representatives or agents shall be liable to Lenders for any action taken or omitted hereunder or under any of the other Loan Documents or in connection herewith or therewith unless caused by its or their gross negligence or willful misconduct. No provision of this Agreement or of any other Loan Document shall be deemed to impose any duty or obligation on Agent to perform any act or to exercise any power in any jurisdiction in which it shall be illegal, or shall be deemed to impose any duty or obligation on Agent to perform any act or exercise any right or power if such performance or exercise (a) would subject Agent to a Tax in a jurisdiction where it is not then subject to a Tax or (b) would require Agent to qualify to do business in any jurisdiction where it is not so qualified. Without prejudice to the generality of the foregoing, no Lender shall have any right of action whatsoever against Agent as a result of Agent acting or (where so instructed) refraining from acting under this Agreement or under any of the other Loan Documents in accordance with the instructions of Lxxxxxx. Agent shall be entitled to refrain from exercising any power, discretion or authority vested in it under this Agreement unless and until it has obtained the written instructions of Lxxxxxx. The agency hereby created shall in no way impair or affect any of the rights and powers of, or impose any duties or obligations upon Agent in its individual capacity. With respect to its participation in the Loan Agreement hereunder, Agent shall have the same rights and powers hereunder as any other Lender and may exercise the same rights and powers as though it were not performing the duties and functions delegated to it hereunder and the term “Lender” or “Lenders” or any similar term shall unless the context clearly indicates otherwise include Agent in its individual capacity.
(c) Agent may rely, and shall be fully protected in acting, or refraining to act, upon, any resolution, statement, certificate, instrument, opinion, report, notice, request, consent, order, bond or other paper or document that it has no reason to believe to be other than genuine and to have been signed or presented by the proper party or parties or, in the case of cables, telecopies and telexes, to have been sent by the proper party or parties. In the absence of its gross negligence or willful misconduct, Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to Agent and conforming to the requirements of this Agreement or any of the other Loan Documents. Agent may consult with counsel, and any opinion or legal advice of such counsel shall be full and complete authorization and protection in respect of any action taken, not taken or suffered by Agent hereunder or under any Loan Documents in accordance therewith. Agent shall have the right at any time to seek instructions concerning the administration of the Collateral from any court of competent jurisdiction. Agent shall not be under any obligation to exercise any of the rights or powers granted to Agent by this Agreement and the other Loan Documents at the request or direction of Lenders unless Agent shall have been provided by Lenders with adequate security and indemnity against the costs, expenses and liabilities that may be incurred by it in compliance with such request or direction.
(d) Each Lender agrees to indemnify Agent in its capacity as such (to the rules extent not reimbursed by Borrower and regulations without limiting the obligation of Borrower to do so), according to its respective Term Commitment percentages (based upon the total outstanding Term Commitments) in effect on the date on which indemnification is sought under this Addendum 4, from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind whatsoever that may at any time be imposed on, incurred by or asserted against Agent in any way relating to or arising out of, this Agreement, any of the SBIC Act. [***] Certain information other Loan Documents or any documents contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby or any action taken or omitted by Agent under or in connection with any of the foregoing; The agreements in this document has been omitted Section shall survive the payment of the Loans and filed separately with all other amounts payable hereunder.
(e) To the Securities and Exchange Commission. Confidential treatment has been requested with respect to extent not reimbursed either by Borrower or from the omitted portions. 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 application of Fifteen Million Dollars ($15,000,000) on , (the “Advance Date”) Collateral proceeds pursuant to the Loan and Security Agreement dated as of December [__]Section 10.2, 2013 among Borrower, Agent and a Lender (the “AgreementIndemnified Lender”) shall be indemnified by the other Lender (an “Indemnifying Lender”). Capitalized words , on a several basis in proportion to each Lender’s pro rata portion of the Term Commitment, and each Indemnifying Lxxxxx agrees to reimburse the Indemnified Lender for the Indemnifying Lxxxxx’s pro rata share of the following items (an “Indemnified Payment”):
(i) all reasonable out-of-pocket costs and expenses of the Indemnified Lender incurred by the Indemnified Lender in connection with the discharge of its activities under this Agreement or the Loan Agreement, including reasonable legal expenses and attorneys’ fees; provided, that the Indemnified Lender shall consult with the other terms used Lender regarding the incurrence of such costs and expenses at reasonable intervals (but not otherwise defined herein more often than monthly) and any such reasonable costs and expenses shall be “Claims” hereunder notwithstanding any disagreement by the other Lender as to their incurrence; and
(ii) from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever, which may be imposed on, incurred by or asserted against the Indemnified Lender in any way relating to or arising out of this Agreement, or any action taken or omitted by the Indemnified Lender hereunder; provided, however, that the Indemnified Lender shall not be reimbursed or indemnified for an Indemnified Payment, except to the extent that the Indemnified Lender paid more than its ratable share of such payment. All Indemnified Payments as set forth in this clause (e) to an Indemnified Lender are used with intended to be paid ratably by the same meanings as defined in the Agreementother Lender.
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Compliance and Resolution. Borrower Xxxxxxxx agrees that a failure to comply with BorrowerXxxxxxxx’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 the Lenders believe that there is a substantial risk of such assertion) that Agent, Lender the Lenders and their affiliates are not entitled to hold, or exercise any significant right with respect to, any securities issued to Lender the Lenders 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 Lenderthe 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 the Lenders believe that there is a substantial risk of such assertion) of a failure to comply with Borrower’s obligations under this Addendum, then (xi) Agent, Lender the Lenders and Borrower will meet and resolve any such issue in good faith to the satisfaction of Borrower, Agent, Lender the Lenders, and [***] Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. any governmental regulatory agency, and (yii) upon request of Lender the Lenders 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.
(a) Each Lender hereby irrevocably appoints Hercules Capital, Inc. required for compliance with to act on its behalf as the rules Agent hereunder and regulations under the SBIC Act. [***] Certain information other Loan Documents and authorizes the Agent to take such actions on its behalf and to exercise such powers as are delegated to the Agent by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto.
(b) Each Lender agrees to indemnify the Agent in its capacity as such (to the extent not reimbursed by Borrower and without limiting the obligation of Borrower to do so), according to its respective Term Commitment percentages (based upon the total outstanding Term Commitments) in effect on the date on which indemnification is sought under this Addendum 3, from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind whatsoever that may at any time be imposed on, incurred by or asserted against the Agent in any way relating to or arising out of, this Agreement, any of the other Loan Documents or any documents contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby or any action taken or omitted by the Agent under or in connection with any of the foregoing; The agreements in this document has been omitted Section shall survive the payment of the Loans and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. 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 all other terms used but not otherwise defined herein are used with the same meanings as defined in the Agreementamounts payable hereunder.
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