vray-20221114exhibit101






Execution Version  i  MidCap / Viewray / Credit, Security and Guaranty Agreement                       Exhibit 10.1                   CREDIT, SECURITY AND GUARANTY AGREEMENT   dated as of November 14, 2022   by and among  VIEWRAY TECHNOLOGIES, INC., VIEWRAY, INC.,  each as Borrower and any additional borrower that hereafter becomes party hereto, each as  Borrower, and collectively as Borrowers,  and   any guarantor that hereafter becomes party hereto, each as Guarantor, and collectively as  Guarantors,  and  MIDCAP FUNDING IV TRUST,  as Agent,  MIDCAP FINANCIAL TRUST,  as Term Loan Servicer,  SILICON VALLEY BANK and MIDCAP FINANCIAL TRUST,   as Co-Lead Arrangers   and  THE LENDERS  FROM TIME TO TIME PARTY HERETO    





 






                          TABLE OF CONTENTS  Page  ARTICLE 1 - DEFINITIONS...................................................................................................................... 1  Section 1.1 Certain Defined Terms ................................................................................... 1  Section 1.2 Accounting Terms and Determinations ........................................................ 38  Section 1.3 Other Definitional and Interpretive Provisions ............................................ 39  Section 1.4 Settlement and Funding Mechanics ............................................................. 39  Section 1.5 Time is of the Essence .................................................................................. 39  Section 1.6 Time of Day ................................................................................................. 39  ARTICLE 2 - LOANS ............................................................................................................................... 39  Section 2.1 Loans. ........................................................................................................... 39  Section 2.2 Interest, Interest Calculations and Certain Fees ........................................... 43  Section 2.3 Notes ............................................................................................................ 45  Section 2.4 Reserved. ...................................................................................................... 45  Section 2.5 Reserved. ...................................................................................................... 45  Section 2.6 General Provisions Regarding Payment; Loan Accounts. ........................... 45  Section 2.7 Maximum Interest ........................................................................................ 46  Section 2.8 Taxes; Capital Adequacy. ............................................................................ 47  Section 2.9 Appointment of Borrower Representative. .................................................. 51  Section 2.10 Joint and Several Liability; Rights of Contribution; Subordination  and Subrogation. ........................................................................................... 52  Section 2.11 Collections and Lockbox Account ............................................................... 54  Section 2.12 Termination; Restriction on Termination. .................................................... 56  ARTICLE 3 - REPRESENTATIONS AND WARRANTIES................................................................... 56  Section 3.1 Existence and Power .................................................................................... 56  Section 3.2 Organization and Governmental Authorization; No Contravention ............ 57  Section 3.3 Binding Effect .............................................................................................. 57  Section 3.4 Capitalization ............................................................................................... 57  Section 3.5 Financial Information ................................................................................... 57  Section 3.6 Litigation ...................................................................................................... 57  Section 3.7 Ownership of Property ................................................................................. 58  Section 3.8 No Default .................................................................................................... 58  Section 3.9 Labor Matters ............................................................................................... 58  Section 3.10 Investment Company Act ............................................................................. 58  Section 3.11 Margin Regulations ...................................................................................... 58  Section 3.12 Compliance With Laws; Anti-Terrorism Laws. ........................................... 58  Section 3.13 Taxes ............................................................................................................ 59  Section 3.14 Compliance with ERISA. ............................................................................. 59  Section 3.15 Consummation of Financing Documents; Brokers ...................................... 60  Section 3.16 [Reserved] .................................................................................................... 60  Section 3.17 Material Contracts ........................................................................................ 60  Section 3.18 Compliance with Environmental Requirements; No Hazardous  Materials ....................................................................................................... 60  Section 3.19 Intellectual Property and License Agreements ............................................. 61  





 






          Section 3.20 Solvency ....................................................................................................... 61  Section 3.21 Full Disclosure ............................................................................................. 61  Section 3.22 Reserved ....................................................................................................... 61  Section 3.23 Subsidiaries .................................................................................................. 61  Section 3.24 Accuracy of Schedules ................................................................................. 61  Section 3.25 Eligible Account; Eligible Inventory ........................................................... 61  Section 3.26 Regulatory Matters. ...................................................................................... 62  Section 3.27 Senior Indebtedness Status ........................................................................... 62  ARTICLE 4 - AFFIRMATIVE COVENANTS ........................................................................................ 63  Section 4.1 Financial Statements, Other Reports and Notices ........................................ 63  Section 4.2 Payment and Performance of Obligations .................................................... 66  Section 4.3 Maintenance of Existence ............................................................................ 66  Section 4.4 Maintenance of Property; Insurance. ............................................................ 66  Section 4.5 Compliance with Laws and Material Contracts ........................................... 67  Section 4.6 Inspection of Property, Books and Records ................................................. 67  Section 4.7 Use of Proceeds ............................................................................................ 68  Section 4.8 [Reserved] .................................................................................................... 68  Section 4.9 Notices of Material Contracts, Litigation and Defaults. ............................... 68  Section 4.10 Hazardous Materials; Remediation. ............................................................. 69  Section 4.11 Further Assurances; Joinder. ........................................................................ 69  Section 4.12 Reserved ....................................................................................................... 71  Section 4.13 Power of Attorney ........................................................................................ 71  Section 4.14 Borrowing Base Collateral Administration .................................................. 72  Section 4.15 Schedule Updates ......................................................................................... 72  Section 4.16 Intellectual Property and Licensing. ............................................................. 72  Section 4.17 Regulatory Covenants. ................................................................................. 74  ARTICLE 5 - NEGATIVE COVENANTS ............................................................................................... 74  Section 5.1 Debt; Contingent Obligations ....................................................................... 74  Section 5.2 Liens ............................................................................................................. 75  Section 5.3 Distributions ................................................................................................. 75  Section 5.4 Restrictive Agreements ................................................................................ 75  Section 5.5 Payments and Modifications of Subordinated Debt ..................................... 75  Section 5.6 Consolidations, Mergers and Sales of Assets; Change in Control ............... 75  Section 5.7 Purchase of Assets, Investments .................................................................. 76  Section 5.8 Transactions with Affiliates ......................................................................... 76  Section 5.9 Modification of Organizational Documents ................................................. 76  Section 5.10 Modification of Certain Agreements ............................................................ 76  Section 5.11 Conduct of Business ..................................................................................... 76  Section 5.12 [Reserved] .................................................................................................... 76  Section 5.13 Limitation on Sale and Leaseback Transactions .......................................... 76  Section 5.14 Deposit Accounts and Securities Accounts; Payroll and Benefits  Accounts ....................................................................................................... 77  Section 5.15 Compliance with Anti-Terrorism Laws ....................................................... 77  Section 5.16 Change in Accounting .................................................................................. 77  Section 5.17 Investment Company Act ............................................................................. 77  Section 5.18 Agreements Regarding Receivables ............................................................. 78  Section 5.19 Restricted Foreign Subsidiaries. ................................................................... 78  ARTICLE 6 – FINANCIAL COVENANTS ............................................................................................. 78  





 






          Section 6.1 Minimum Net Revenue ................................................................................ 78  Section 6.2 Minimum Backlog ........................................................................................ 78  Section 6.3 Evidence of Compliance .............................................................................. 78  ARTICLE 7 – CONDITIONS ................................................................................................................... 79  Section 7.1 Conditions to Closing ................................................................................... 79  Section 7.2 Conditions to Each Loan .............................................................................. 79  Section 7.3 Searches ........................................................................................................ 80  Section 7.4 Post-Closing Requirements .......................................................................... 81  ARTICLE 8 – RESERVED ....................................................................................................................... 81  ARTICLE 9 – SECURITY AGREEMENT ............................................................................................... 81  Section 9.1 Generally ...................................................................................................... 81  Section 9.2 Representations and Warranties and Covenants Relating to  Collateral. ..................................................................................................... 81  ARTICLE 10 - EVENTS OF DEFAULT .................................................................................................. 85  Section 10.1 Events of Default .......................................................................................... 85  Section 10.2 Acceleration and Suspension or Termination of Revolving Loan  Commitment and Term Loan Commitment ................................................. 87  Section 10.3 UCC Remedies. ............................................................................................ 88  Section 10.4 Protective Payments ..................................................................................... 89  Section 10.5 Default Rate of Interest ................................................................................ 90  Section 10.6 Setoff Rights ................................................................................................. 90  Section 10.7 Application of Proceeds. .............................................................................. 90  Section 10.8 Waivers......................................................................................................... 91  Section 10.9 Injunctive Relief ........................................................................................... 93  Section 10.10 Marshalling; Payments Set Aside................................................................. 93  ARTICLE 11 - AGENT ............................................................................................................................. 93  Section 11.1 Appointment and Authorization ................................................................... 93  Section 11.2 Agents and Affiliates .................................................................................... 94  Section 11.3 Action by Agent ........................................................................................... 94  Section 11.4 Consultation with Experts ............................................................................ 94  Section 11.5 Liability of Agent ......................................................................................... 94  Section 11.6 Indemnification ............................................................................................ 95  Section 11.7 Right to Request and Act on Instructions ..................................................... 95  Section 11.8 Credit Decision ............................................................................................. 95  Section 11.9 Collateral Matters ......................................................................................... 95  Section 11.10 Agency for Perfection .................................................................................. 96  Section 11.11 Notice of Default .......................................................................................... 96  Section 11.12 Assignment by Agent; Resignation of Agent; Successor Agent. ................. 96  Section 11.13 Payment and Sharing of Payment. ............................................................... 97  Section 11.14 Right to Perform, Preserve and Protect ........................................................ 99  Section 11.15 Additional Titled Agents ............................................................................ 100  Section 11.16 Amendments and Waivers.......................................................................... 100  Section 11.17 Assignments and Participations.................................................................. 101  Section 11.18 Funding and Settlement Provisions Applicable When Non-Funding  Lenders Exist .............................................................................................. 104  ARTICLE 12 – GUARANTY ................................................................................................................. 105  





 






          Section 12.1 Guaranty ..................................................................................................... 105  Section 12.2 Payment of Amounts Owed ....................................................................... 105  Section 12.3 Certain Waivers by Guarantor .................................................................... 105  Section 12.4 Guarantor’s Obligations Not Affected by Modifications of Financing  Documents .................................................................................................. 107  Section 12.5 Reinstatement; Deficiency ......................................................................... 107  Section 12.6 Subordination of Borrowers’ Obligations to Guarantors; Claims in  Bankruptcy. ................................................................................................ 108  Section 12.7 Maximum Liability .................................................................................... 108  Section 12.8 Guarantor’s Investigation ........................................................................... 109  Section 12.9 Termination ................................................................................................ 109  Section 12.10 Representative ............................................................................................ 109  Section 12.11 Guarantor Acknowledgement..................................................................... 109  ARTICLE 13 - MISCELLANEOUS ....................................................................................................... 110  Section 13.1 Survival ...................................................................................................... 110  Section 13.2 No Waivers ................................................................................................. 110  Section 13.3 Notices. ....................................................................................................... 110  Section 13.4 Severability................................................................................................. 112  Section 13.5 Headings ..................................................................................................... 112  Section 13.6 Confidentiality ............................................................................................ 112  Section 13.7 Waiver of Consequential and Other Damages ........................................... 112  Section 13.8 GOVERNING LAW; SUBMISSION TO JURISDICTION. .................... 113  Section 13.9 WAIVER OF JURY TRIAL ...................................................................... 113  Section 13.10 Publication; Advertisement. ....................................................................... 113  Section 13.11 Counterparts; Integration ............................................................................ 114  Section 13.12 No Strict Construction ................................................................................ 114  Section 13.13 Lender Approvals ....................................................................................... 114  Section 13.14 Expenses; Indemnity .................................................................................. 114  Section 13.15 RESERVED ............................................................................................... 116  Section 13.16 Reinstatement ............................................................................................. 116  Section 13.17 Successors and Assigns .............................................................................. 116  Section 13.18 USA PATRIOT Act Notification ............................................................... 116  Section 13.19 Acknowledgement and Consent to Bail-In of Affected Financial  Institutions .................................................................................................. 117  Section 13.20 117  Section 13.21 [Reserved]. ................................................................................................. 117  Section 13.22 Erroneous Payments. .................................................................................. 117    





 






  MidCap / Viewray /  Credit, Security  and Guaranty Agreement         CREDIT, SECURITY AND GUARANTY AGREEMENT  This CREDIT, SECURITY AND GUARANTY AGREEMENT (as the same may be amended,  supplemented, restated or otherwise modified from time to time, the “Agreement”) is dated as of November  14, 2022 by and among VIEWRAY, INC., a Delaware corporation (“Viewray”), VIEWRAY  TECHNOLOGIES, INC., a Delaware corporation (“Viewray Technologies”), and any additional  borrower that may hereafter be added to this Agreement and each of their successors and permitted assigns  (together with Viewray Technologies and Viewray, each individually as a “Borrower”, and collectively,  the “Borrowers”), any entities that become party hereto as Guarantors and each of their successors and  permitted assigns (each individually, a “Guarantor” and collectively, with each of their successors and  assigns, the “Guarantors”), MIDCAP FUNDING IV TRUST, as Agent, MIDCAP FINANCIAL  TRUST, as Term Loan Servicer, and the financial institutions or other entities from time to time parties  hereto, each as a Lender.   RECITALS  The Credit Parties have requested that Lenders make available to Borrowers the financing facilities  as described herein.  Lenders are willing to extend such credit to Borrowers under the terms and conditions  herein set forth.    AGREEMENT  NOW, THEREFORE, in consideration of the premises and the agreements, provisions and  covenants herein contained, Credit Parties, Lenders, Agent and Term Loan Servicer agree as follows:  ARTICLE 1 - DEFINITIONS  Section 1.1 Certain Defined Terms.  The following terms have the following meanings:  “Acceleration Event” means the occurrence of an Event of Default (a) in respect of which Agent  has declared all or any portion of the Obligations to be immediately due and payable pursuant to  Section 10.2, (b) pursuant to Section 10.1(a), and in respect of which Agent has suspended or terminated  the Revolving Loan Commitment or Term Loan Commitment pursuant to Section 10.2, and/or (c) pursuant  to either Section 10.1(e) and/or Section 10.1(f).  “Account Debtor” means “account debtor”, as defined in Article 9 of the UCC, and any other  obligor in respect of an Account.  “Accounts” means, collectively, (a) any right to payment of a monetary obligation, whether or not  earned by performance, (b) without duplication, any “account” (as defined in the UCC), any accounts  receivable (whether in the form of payments for services rendered or goods sold, rents, license fees or  otherwise), any “health-care-insurance receivables” (as defined in the UCC), any “payment intangibles” (as  defined in the UCC) and all other rights to payment and/or reimbursement of every kind and description,  whether or not earned by performance, (c) all accounts, “general intangibles” (as defined in the UCC),  Intellectual Property, rights, remedies, Guarantees, “supporting obligations” (as defined in the UCC),  “letter-of-credit rights” (as defined in the UCC) and security interests in respect of the foregoing, all rights  of enforcement and collection, all books and records evidencing or related to the foregoing, and all rights  under the Financing Documents in respect of the foregoing, and (d) all Proceeds of any of the foregoing.  “Acquisition” means any transaction or series of related transactions for the purpose of or resulting,  directly or indirectly, in (a) the acquisition (including through licensing) of all or substantially all of the  





 






2  MidCap / Viewray / Credit, Security and Guaranty Agreement               assets of a Person, or of any business, line of business or division or other unit of operation of a Person,  (b) the acquisition of fifty percent (50%) or more of the Equity Interests of any Person, whether or not  involving a merger or consolidation with such other Person, or otherwise causing any Person to become a  Subsidiary of a Credit Party, (c) any merger or consolidation or any other combination with another Person  or (d) the acquisition (including through licensing) of any Product, Product line or Intellectual Property of  or from any other Person (but in each case excluding in-bound licenses of, and purchases of, over-the- counter and other software that is commercially available to the public and open source licenses in the  Ordinary Course of Business) or any assets constituting a business unit, line of business or division of such  other Person.  “Additional Titled Agents” has the meaning set forth in Section 11.15.  “Additional Tranche” means an additional amount of Revolving Loan Commitment equal to  $10,000,000 (it being acknowledged that multiple Additional Tranches are permitted pursuant to  Section 2.1(c) in minimum amounts of $2,000,000 each for a total of up to $10,000,000).  “Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial  Institution.   “Affiliate” means, with respect to any Person, (a) any Person that directly or indirectly controls  such Person, (b) any Person which is controlled by or is under common control with such controlling  Person, and (c) each of such Person’s (other than, with respect to any Lender, any Lender’s) officers or  directors (or Persons functioning in substantially similar roles).  As used in this definition, the term  “control” of a Person means the possession, directly or indirectly, of the power to vote ten percent (10%)  or more of any class of voting securities of such Person or to direct or cause the direction of the management  or policies of a Person, whether through the ownership of voting securities, by contract or otherwise.  “Agent” means MCF, in its capacity as administrative agent for itself and for Lenders hereunder,  as such capacity is established in, and subject to the provisions of, Article 11, and the successors and assigns  of MCF in such capacity.  “Anti-Terrorism Laws” means any Laws relating to terrorism or money laundering, including,  without limitation, Executive Order No. 13224 (effective September 24, 2001), the USA PATRIOT Act,  the Laws comprising or implementing the Bank Secrecy Act, and the Laws or general or specific licenses  administered by OFAC.  “Applicable Floor” means (a) with respect to Revolving Loans, rate per annum of interest equal  to six and one quarter percent (6.25%), (b) with respect to Term Loans and all other Obligations, rate per  annum of interest equal to nine and one quarter percent (9.25%).  “Applicable Interest Rate” means, with respect to all Obligations, the greater of (i) Prime Rate  plus the Applicable Margin, and (ii) the Applicable Floor.  “Applicable Margin” means (a) with respect to Revolving Loans, one half of one percent (0.50%)  and (b) with respect to Term Loans and all other Obligations, three and one half percent (3.50%).   “Applicable Minimum Backlog Threshold” means (a) for each Defined Period ending on or  before December 31, 2023, the minimum Backlog amount set forth on Schedule 6.2 attached hereto for  such Defined Period, and (b) for each Defined Period ending after December 31, 2023, a minimum Backlog  amount for such Defined Period to be determined by Agent and Required Lenders (in consultation with  





 






3  MidCap / Viewray / Credit, Security and Guaranty Agreement               Borrower) in good faith on or prior to February 28th of the year ending prior to the year in which such  Defined Period ends based upon the most recent financial information provided by Borrower to Agent  pursuant to Section 4.1 of this Agreement; provided that in no event shall the minimum Backlog for any  such Defined Period be less than 110% of the actual Backlog for the applicable Defined Period ending one  year prior thereto.   “Applicable Minimum Net Revenue Threshold” means the minimum Net Revenue amount set  forth on Schedule 6.1 attached hereto for such Defined Period.   “Approved Fund” means any (a) investment company, fund, trust, securitization vehicle or  conduit that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial  loans and similar extensions of credit in the ordinary course of business, or (b) any Person (other than a  natural person) which temporarily warehouses loans for any Lender or any entity described in the preceding  clause (a) and that, with respect to each of the preceding clauses (a) and (b), is administered or managed by  (i) a Lender, (ii) an Affiliate of a Lender, or (iii) a Person (other than a natural person) or an Affiliate of a  Person (other than a natural person) that administers or manages a Lender.  “Asset Disposition” means any sale, lease, license, transfer, assignment or other disposition  (including by merger, allocation of assets (including allocation of assets to any series of a limited liability  company), division, consolidation or amalgamation, but excluding dispositions resulting from any casualty  or other damage to, any property or asset) by any Credit Party or any Subsidiary thereof of any asset of  such Credit Party or such Subsidiary.  “Assignment Agreement” means an assignment agreement in substantially the form attached  hereto as Exhibit G or such other form that is acceptable to Agent and, as applicable, Borrower  Representative.   “Assignment of Claims Act” means the Assignment of Claims Act, 31 USC §3727, as amended.  “Backlog” means the aggregate dollar amount of customer (including distributors) orders of  MRIdian systems for which revenue has not been recognized, but for which the Credit Parties, in their good  faith business judgment based upon the Ordinary Course of Business and consistent with past practice,  consider revenue to be reasonably likely to be recognized in the future; provided that Credit Parties shall  perform a quarterly review of Backlog to verify that outstanding orders in Backlog remain valid, and based  upon this review, orders that are no longer expected to result in revenue are removed from Backlog.  Notwithstanding the foregoing, in order for any such customer orders to constitute Backlog for purposes of  this Agreement, the Credit Parties must possess an outstanding and effective written agreement for the  delivery of a MRIdian system signed by a customer with a minimum deposit or a letter of credit  requirement, except when the sale is to a customer where a deposit is not deemed necessary or customary  in the Ordinary Course of Business.  “Backlog Report” means a written report, appropriately completed and in the form attached hereto  as Exhibit H prepared by Borrowers on a quarterly basis that details the  calculation of Backlog for the  Defined Period ending on the last day of the applicable fiscal quarter and the orders and transactions related  thereto and an evaluation against the Borrowers’ stated criteria for determining that such orders meet the  criteria for inclusion in Backlog, together with such back-up documentation (including, without limitation,  a quarter-to-quarter analysis detailing new gross orders, cancellations, age-outs, drop-outs and system  installation-related product revenue) as Agent shall reasonably require in support thereof.   





 






4  MidCap / Viewray / Credit, Security and Guaranty Agreement               “Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable  Resolution Authority in respect of any liability of an Affected Financial Institution.  “Bail-In Legislation” means (a) with respect to any EEA Member Country implementing Article  55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the  implementing law, regulation, rule or requirement for such EEA Member Country from time to time which  is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of  the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or  rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment  firms or other financial institutions or their affiliates (other than through liquidation, administration or other  insolvency proceedings).  “Bankruptcy Code” means Title 11 of the United States Code entitled “Bankruptcy”, as the same  may be amended, modified or supplemented from time to time, and any successor statute thereto.  “Blocked Person” means any Person:  (a) listed in the annex to, or is otherwise subject to the  provisions of, Executive Order No. 13224, (b) owned or controlled by, or acting for or on behalf of, any  Person that is listed in the annex to, or is otherwise subject to the provisions of, Executive Order No. 13224,  (c) with which any Lender is prohibited from dealing or otherwise engaging in any transaction by any Anti- Terrorism Law, (d) that commits, threatens or conspires to commit or supports “terrorism” as defined in  Executive Order No. 13224, (e) that is named a “specially designated national” or “blocked person” on the  most current list published by OFAC or other similar sanctions list or is named as a “listed person” or “listed  entity” on other lists made under any Anti-Terrorism Law, or (f) any Person resident in, organized under  the laws of or incorporated in a Sanctioned Country.  “Borrower” and “Borrowers” has the meaning set forth in the introductory paragraph hereto.    “Borrower Representative” means Viewray, in its capacity as Borrower Representative pursuant  to the provisions of Section 2.9, or any successor Borrower Representative selected by Borrowers and  approved by Agent.  “Borrowing Base” means, the sum of:  (a) the product of (i) eighty percent (80%) multiplied by (ii) the aggregate net  amount at such time of the Eligible Accounts; plus   (b) the product of (i) eighty percent (80%) multiplied by (ii) the aggregate net  amount at such time of the Eligible Foreign Accounts; plus  (c) the lesser of (i) fifty percent (50%) multiplied by the Orderly Liquidation Value  of the Eligible Inventory, or (ii) fifty percent (50%) multiplied by (ii) the value of the Eligible Inventory,  valued at the lower of first-in-first-out cost or market cost, and after factoring in all rebates, discounts and  other incentives or rewards associated with the purchase of the applicable Inventory; minus   (d) the amount of any reserves and/or other adjustments provided for in this  Agreement;  provided, that the Borrowing Base shall automatically be adjusted down, if necessary, such that (i) the  aggregate availability from Eligible Inventory shall never exceed an amount equal to $5,000,000, as of  any date of determination, and (ii) the aggregate availability from Eligible Foreign Accounts shall never  





 






5  MidCap / Viewray / Credit, Security and Guaranty Agreement               exceed $1,500,000 in the aggregate; and provided further that (x) if a reasonably satisfactory initial  collateral audit and analysis by Agent following the Closing Date (the “Initial Audit”) is not completed  by the date that is three (3) months after the Closing Date, the Borrowing Base shall be capped at  $2,500,000 until the earlier of (A) the completion of the Initial Audit, and (B) the date that is six (6) months  after the Closing, and (y) if the Initial Audit is not completed by the date that is six (6) months after the  Closing Date, the Borrower Base shall be deemed to zero Dollars ($0) until the date on which the Initial  Audit is completed.    “Borrowing Base Certificate” means a certificate, duly executed by a Responsible Officer of  Borrower Representative, appropriately completed and substantially in the form of Exhibit C hereto.   “Business Day” means any day except a Saturday, Sunday or other day on which either the New  York Stock Exchange is closed, or on which commercial banks in Washington, DC and New York City are  authorized by Law to close.  “Capital Lease” of any Person means any lease of any property by such Person as lessee which  would, in accordance with GAAP, be required to be accounted for as a capital lease on the balance sheet of  such Person.  “Cash Equivalents” means, as of any date of determination, any of the following: (a) marketable  securities (i) issued or directly and unconditionally guaranteed as to interest and principal by the United  States government, or (ii) issued by any agency of the United States the obligations of which are backed by  the full faith and credit of the United States, in each case maturing within one (1) year after such date; (b)  marketable direct obligations issued by any state of the United States or any political subdivision of any  such state or any public instrumentality thereof, in each case maturing within one (1) year after such date  and having, at the time of the acquisition thereof, a rating of at least A-1 from S&P or at least P-1 from  Moody’s; (c) commercial paper maturing no more than one (1) year from the date of creation thereof and  having, at the time of the acquisition thereof, a rating of at least A-1 from S&P or at least P-1 from Moody’s,  or carrying an equivalent rating by a nationally recognized rating agency, if both of the two named rating  agencies cease publishing ratings of commercial paper issuers generally; (d) certificates of deposit or  bankers’ acceptances maturing within one (1) year after such date and issued or accepted by any Lender or  by any commercial bank organized under the laws of the United States or any state thereof or the District  of Columbia that (i) is at least “adequately capitalized” (as defined in the regulations of its primary federal  banking regulator), and (ii) has Tier 1 capital (as defined in such regulations) of not less than $100,000,000;  and (e) shares of any money market mutual fund that (i) has substantially all of its assets invested  continuously in the types of investments referred to in clauses (a) and (b) above, (ii) has net assets of not  less than $500,000,000, and (iii) has the highest rating obtainable from either S&P or Moody’s.  “CERCLA” means the Comprehensive Environmental Response, Compensation and Liability Act  of 1980, 42 U.S.C.A. § 9601 et seq., as the same may be amended from time to time.  “CFC” means an entity that is a controlled foreign corporation within the meaning of Section 957  of the Code.   “Cash Dominion Event” means (a) the occurrence and continuance of any Event of Default or (b)  the aggregate Credit Party Unrestricted Cash is less than an amount equal to the greater of (i) $50,000,000,  and (ii) an amount equal to 110% of the combined aggregate outstanding principal balance of the Term  Loans and the Revolving Loans for a period of ten (10) consecutive Business Days (such amount, the  “Minimum Cash Amount”).   





 






6  MidCap / Viewray / Credit, Security and Guaranty Agreement               “Cash Dominion Period” means each period beginning immediately upon the occurrence of a  Cash Dominion Event and ending on the date that both (a) no Event of Default exists and is continuing and  (b) Agent has received satisfactory evidence that the aggregate Credit Party Unrestricted Cash has been  equal to or greater than the Minimum Cash Amount for a period of ten (10) consecutive Business Days  following the occurrence of the applicable Cash Dominion Event.   “Change in Control” means any of the following events:  (a) any “person” or “group” (as such  terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934) becomes the “beneficial  owner” (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except that a  person or group shall be deemed to have “beneficial ownership” of all securities that such person or group  has the right to acquire, whether such right is exercisable immediately or only after the passage of time  (such right, an “option right”)), directly or indirectly, of thirty-five percent (35%) or more of the combined  voting power of all voting stock of Viewray on a fully-diluted basis (and taking into account all such  securities that such person or group has the right to acquire pursuant to any option right), but excluding any  such “person” or “group” that owns, on the date hereof, at least thirty-five percent (35%) of the combined  voting power of all voting stock of Viewray, as so determined; (b) any Credit Party ceases to own, directly  or indirectly, 100% of the capital stock of any of its Subsidiaries (with the exception of any Subsidiaries  permitted to be dissolved, merged or otherwise disposed of to the extent otherwise permitted by this  Agreement); or (c) the occurrence of a “Change of Control”, “Fundamental Change”, “Change in Control”,  “Deemed Liquidation Event” or terms of similar import under any document or instrument governing or  relating to Debt of or Equity Interests of such Person.  As used herein, “beneficial ownership” shall have  the meaning provided in Rule 13d-3 of the SEC under the Securities Exchange Act of 1934.   “Closing Date” means the date of this Agreement.  “Code” means the Internal Revenue Code of 1986, as amended from time to time, any successor  statutes thereto, and applicable U.S. Department of Treasury regulations issued pursuant thereto in  temporary or final form.  “Collateral” means all property, other than Excluded Property, now existing or hereafter acquired,  mortgaged or pledged to, or purported to be subjected to a Lien in favor of, Agent, for the benefit of Agent  and Lenders, pursuant to this Agreement and the Security Documents, including, without limitation, all of  the property described in Schedule 9.1 hereto.  “Commitment Annex” means Annex A to this Agreement.  “Compliance Certificate” means a certificate, duly executed by a Responsible Officer of Borrower  Representative, appropriately completed and substantially in the form of Exhibit B hereto.  “Consolidated Subsidiary” means, at any date, any Subsidiary the accounts of which would be  consolidated with those of Viewray (or any other Person, as the context may require hereunder) in its  consolidated financial statements if such statements were prepared as of such date.  “Contingent Obligation” means, with respect to any Person, any direct or indirect liability of such  Person:  (a) with respect to any Debt of another Person (a “Third Party Obligation”) if the purpose or  intent of such Person incurring such liability, or the effect thereof, is to provide assurance to the obligee of  such Third Party Obligation that such Third Party Obligation will be paid or discharged, or that any  agreement relating thereto will be complied with, or that any holder of such Third Party Obligation will be  protected, in whole or in part, against loss with respect thereto; (b) with respect to any undrawn portion of  any letter of credit issued for the account of such Person or as to which such Person is otherwise liable for  





 






7  MidCap / Viewray / Credit, Security and Guaranty Agreement               the reimbursement of any drawing; (c) under any Swap Contract, to the extent not yet due and payable;  (d) to make take-or-pay or similar payments if required regardless of nonperformance by any other party  or parties to an agreement; or (e) for any obligations of another Person pursuant to any Guarantee or  pursuant to any agreement to purchase, repurchase  or otherwise acquire any obligation or any property  constituting security therefor, to provide funds for the payment or discharge of such obligation or to  preserve the solvency, financial condition or level of income of another Person.  The amount of any  Contingent Obligation shall be equal to the amount of the obligation so Guaranteed or otherwise supported  or, if not a fixed and determinable amount, the maximum amount so Guaranteed or otherwise supported.  “Controlled Group” means all members of a group of corporations and all members of a group of  trades or businesses (whether or not incorporated) under common control which, together with the Credit  Parties, are treated as a single employer under Section 414(b), (c), (m) or (o) of the Code or Section 4001(b)  of ERISA and, solely for purposes of Section 412 and 436 of the Code, Section 414(m) or (o) of the Code.  “Correction” means repair, modification, adjustment, relabeling, destruction or inspection  (including patient monitoring) of a Product without its physical removal to some other location.  “Credit Card Cash Collateral Account” means, collectively, each segregated Deposit Account  from time to time identified to Agent in writing established by Borrower for the sole purpose of securing  Borrower’s obligations under clause (k) of the definition Permitted Debt and containing only such cash or  Cash Equivalents that have been required to be pledged to secure such obligations of Borrower; provided,  that the aggregate amount of cash or Cash Equivalents deposited in all such Credit Card Cash Collateral  Account(s) does not, at any time, exceed $1,600,000 in the aggregate.  “Credit Party” means each Borrower and each Guarantor; and “Credit Parties” means all such  Persons, collectively; provided, however, that, for the avoidance of doubt, in no event shall any Restricted  Foreign Subsidiary be deemed to be or otherwise required to be a “Credit Party” for purposes of this  Agreement or the other Financing Documents.  “Credit Party Unrestricted Cash” means unrestricted cash and cash equivalents of Credit Parties  that are (a) subject to a first priority perfected lien in favor of Agent for the benefit of Lenders, (b) held in  the name of a Borrower in a Deposit Account or Securities Account at Silicon Valley Bank or an Affiliate  thereof that, in each case, is subject to a Deposit Account Control Agreement or Securities Account Control  Agreement (as applicable), and (c) not funds for the payment of a drawn or committed but unpaid draft,  ACH or EFT transaction.  “Debt” of a Person means at any date, without duplication, (a) all obligations of such Person for  borrowed money, (b) all obligations of such Person evidenced by bonds, debentures, notes or other similar  instruments, (c) all obligations of such Person to pay the deferred purchase price of property or services,  except trade accounts payable arising and paid on a timely basis and in the Ordinary Course of Business,  (d) all Capital Leases of such Person, (e) all non-contingent obligations of such Person to reimburse any  bank or other Person in respect of amounts paid under a letter of credit, banker’s acceptance or similar  instrument, (f) all Disqualified Equity Interests, (g) all obligations secured by a Lien on any asset of such  Person, whether or not such obligation is otherwise an obligation of such Person, (h) ”earnouts”, purchase  price adjustments, profit sharing arrangements, deferred purchase money amounts and similar payment  obligations or continuing obligations of any nature of such Person arising out of purchase and sale contracts,  (i) all Debt of others Guaranteed by such Person, (j) all monetary obligations under any synthetic lease, tax  ownership/operating lease, off-balance sheet financing or similar financing, and (k) obligations in respect  of litigation settlement agreements or similar arrangements.  Without duplication of any of the foregoing,  Debt of Credit Parties shall include any and all Loans.  





 






8  MidCap / Viewray / Credit, Security and Guaranty Agreement               “Debtor Relief Laws” means the Bankruptcy Code and all other liquidation, bankruptcy,  assignment for the benefit of creditors, conservatorship, moratorium, receivership, insolvency,  rearrangement, reorganization or similar debtor relief Laws of the United States or other applicable  jurisdictions in effect from time to time.   “Default” means any condition or event which with the giving of notice or lapse of time or both  would, unless cured or waived, become an Event of Default.  “Defaulted Lender” means, (i) so long as such failure shall remain in existence and uncured, any  Lender which shall have failed to make any Loan or other credit accommodation, disbursement, settlement  or reimbursement required pursuant to the terms of any Financing Document, (ii) any Lender that has  notified the Credit Parties or Agent in writing that it does not intend to comply with its funding obligations  hereunder, or has made a public statement to that effect (unless such writing or public statement relates to  such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender's  determination that a condition precedent to funding (which condition precedent, together with any  applicable Default or Event of Default, shall be specifically identified in such writing or public statement)  cannot be satisfied), or (iii) any Lender that has, or has a direct or indirect parent company that has, (a)  become the subject of any proceeding under the Bankruptcy Code or any other insolvency, debtor relief or  debt adjustment or similar law (whether state, provincial, territorial, federal or foreign), or (b) had appointed  for it a receiver, custodian, conservator, trustee, administrator, assignee for  the benefit of creditors or  similar Person charged with reorganization or liquidation of its business or assets, including the Federal  Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity;  provided, that a Lender shall not be a Defaulted Lender solely by virtue of the ownership or acquisition of  any equity interest in that Lender or any direct or indirect parent company thereof by a Governmental  Authority so long as such ownership interest does not result in or provide such Lender with immunity from  the jurisdiction of courts within the United States or from the enforcement of judgments or writs of  attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate,  disavow or disaffirm any contracts or agreements made with such Lender. Any determination by Agent that  a Lender is a Defaulted Lender under any one or more of clauses (i) through (iii) above shall be conclusive  and binding absent manifest error, and such Lender shall be deemed to be a Defaulted Lender upon delivery  of written notice of such determination to Agent and each Lender.  “Deferred Revenue” is all amounts received or invoiced in advance of performance under  contracts and not yet recognized as revenue.  “Defined Period” means for any given calendar quarter or date of determination, the immediately  preceding twelve (12) month period ending on the last day of such calendar quarter or if such date of  determination is not the last day of a calendar quarter, the twelve (12) month period immediately preceding  any such date of determination.  “Deposit Account” means a “deposit account” (as defined in Article 9 of the UCC), an investment  account, or other account in which funds are held or invested for credit to or for the benefit of any Credit  Party.  “Deposit Account Control Agreement” means an agreement, in form and substance reasonably  satisfactory to Agent, among Agent, any Credit Party and each financial institution in which such Credit  Party maintains a Deposit Account (which is not an Excluded Account), which agreement provides  that such financial institution shall comply with instructions originated by Agent directing disposition of  the funds in such Deposit Account without further consent by the applicable Credit Party, including as to  any such agreement pertaining to any Lockbox Account, providing that such financial institution shall, at  





 






9  MidCap / Viewray / Credit, Security and Guaranty Agreement               the direction of Agent, wire, or otherwise transfer, in immediately available funds, on a daily basis to the  Revolving Loan Payment Account or a Borrower operating deposit account (as applicable) all funds  received or deposited into such Lockbox or Lockbox Account.  “Disqualified Equity Interests” means, with respect to any Person, any Equity Interest in such  Person that, within less than 91 days after the Termination Date, either by its terms (or by the terms of any  security or any other Equity Interests into which it is convertible or for which it is exchangeable) or upon  the happening of any event or condition, (a) matures or is mandatorily redeemable (other than solely for  Permitted Debt or other Equity Interests in such Person or of Viewray that do not constitute Disqualified  Equity Interests and cash in lieu of fractional shares of such Equity Interests), pursuant to a sinking fund  obligation or otherwise, (b) is redeemable at the option of the holder thereof, in whole or in part (other than  solely for Permitted Debt or other Equity Interests in such Person or of Viewray that do not constitute  Disqualified Equity Interests and cash in lieu of fractional shares of such Equity Interests), (c) provides for  the scheduled payments of dividends or distributions in cash, or (d) is or becomes convertible into or  exchangeable for Debt (other than Permitted Debt) or any other Equity Interest that would constitute  Disqualified Equity Interests.  “Distribution” means as to any Person (a) any dividend or other distribution or payment (whether  in cash, securities or other property) on, or in respect of, any Equity Interest in such Person (except those  payable solely in its Equity Interests other than Disqualified Equity Interests), and (b) any payment by such  Person on account of (i) the purchase, redemption, retirement, defeasance, surrender, cancellation,  termination or acquisition of any Equity Interests in such Person or any claim respecting the purchase or  sale of any Equity Interest in such Person, or (ii) any option, warrant or other right to acquire any Equity  Interests in such Person.  “Dollars” or “$” means the lawful currency of the United States of America.  “EEA Financial Institution” means (a) any credit institution or investment firm established in any  EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity  established in an EEA Member Country which is a parent of an institution described in clause (a) of this  definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of  an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with  its parent.  “EEA Member Country” means any of the member states of the European Union, Iceland,  Liechtenstein, and Norway.  “EEA Resolution Authority” means any public administrative authority or any person entrusted  with public administrative authority of any EEA Member Country (including any delegee) having  responsibility for the resolution of any EEA Financial Institution.  “Eligible Account” means, subject to the criteria below, an account receivable of a Borrower,  which was generated in the Ordinary Course of Business and originally in the name of a Borrower and not  acquired via assignment or otherwise, and which Agent, in its Permitted Discretion, deems to be an Eligible  Account.  The net amount of an Eligible Account at any time shall be (a) the face amount of such Eligible  Account as originally billed minus all cash collections and other proceeds of such Account received from  or on behalf of the Account Debtor thereunder as of such date and any and all returns, rebates, discounts  (which may, at Agent’s option, be calculated on shortest terms), credits, allowances or excise taxes of any  nature at any time issued, owing, claimed by Account Debtors, granted, outstanding or payable in  connection with such Accounts at such time, and (b) adjusted by applying percentages (known as “liquidity  





 






10  MidCap / Viewray / Credit, Security and Guaranty Agreement               factors”) by payor and/or payor class based upon the applicable Borrower’s actual recent collection history  for each such payor and/or payor class in a manner consistent with Agent’s underwriting practices and  procedures as determined in Agent’s Permitted Discretion.  Such liquidity factors may be adjusted by Agent  from time to time as warranted by Agent’s underwriting practices and procedures and using Agent’s  Permitted Discretion.  Without limiting the generality of the foregoing, no Account shall be an Eligible  Account if:    (a) the Account remains unpaid more than one hundred and twenty (120) days past  the claim or invoice date (but in no event more than one hundred and eighty (180) days after the applicable  goods or services have been rendered or delivered);   (b) the Account is subject to any defense, set-off, recoupment, counterclaim,  deduction, discount, credit, chargeback, freight claim, allowance, or adjustment of any kind (but only to  the extent of such defense, set-off, recoupment, counterclaim, deduction, discount, credit, chargeback,  freight claim, allowance, or adjustment), or the applicable Borrower is not able to bring suit or otherwise  enforce its remedies against the Account Debtor through judicial process;  (c) if the Account arises from the sale of goods, any part of any goods the sale of  which has given rise to the Account has been returned, rejected, lost, or damaged (but only to the extent  that such goods have been so returned, rejected, lost or damaged);  (d) if the Account arises from the sale of goods, the sale was not an absolute, bona  fide sale, or the sale was made on consignment or on approval or on a sale-or-return or bill-and-hold or  progress billing basis, or the sale was made subject to any other repurchase or return agreement, or the  goods have not been shipped to the Account Debtor or its designee or the sale was not made in compliance  with applicable Laws;  (e) if the Account arises from the performance of services, the services have not  actually been performed or the services were undertaken in violation of any Law or the Account  represents a progress billing for which services have not been fully and completely rendered;  (f) the Account is subject to a Lien (other than Liens in favor of Agent or Permitted  Liens that have been expressly subordinated to the Liens of Agent or that arise solely by operation of  law), or Agent does not have a first priority, perfected Lien on such Account;  (g) the Account is evidenced by Chattel Paper or an Instrument of any kind, or has  been reduced to judgment, unless such Chattel Paper or Instrument has been delivered to Agent;  (h) the Account Debtor is an Affiliate or Subsidiary of a Credit Party, or if the  Account Debtor holds any Debt of a Credit Party;  (i) more than fifty percent (50%) of the aggregate balance of all Accounts owing  from the Account Debtor obligated on the Account are ineligible under subclause (a) above (in which  case all Accounts from such Account Debtor shall be ineligible);  (j) the total unpaid Accounts of the Account Debtor obligated on the Account  exceed thirty percent (30%) of the net amount of all Eligible Accounts owing from all Account Debtors  (but only the amount of the Accounts of such Account Debtor exceeding such thirty percent (30%)  limitation shall be considered ineligible);   





 






11  MidCap / Viewray / Credit, Security and Guaranty Agreement               (k) any covenant, representation or warranty contained in the Financing Documents  with respect to such Account has been breached in any material respect (with respect to covenants) or is  incorrect in any material respect (with respect to representations and warranties);  (l) the Account is unbilled or has not been invoiced to the Account Debtor in  accordance with the procedures and requirements of the applicable Account Debtor;  (m) the Account is an obligation of an Account Debtor that is the federal, state or  local government or any political subdivision thereof, unless, to the extent required pursuant to Section  9.2,  the applicable Borrower assigns its right to payment of such Account to Agent pursuant to the federal  Assignment of Claims Act (to the extent applicable) and has otherwise complied with applicable statutes  or ordinances necessary for Agent or Lenders to enforce their rights and collect amounts due in respect  of such Account;  (n) the Account is an obligation of an Account Debtor that has suspended business,  made a general assignment for the benefit of creditors, is unable to pay its debts as they become due or  as to which a petition has been filed (voluntary or involuntary) under any law relating to bankruptcy,  insolvency, reorganization or relief of debtors, or the Account is an Account as to which any facts, events  or occurrences exist which could reasonably be expected to impair the validity, enforceability or  collectability of such Account or reduce the amount payable or delay payment thereunder;  (o) the Account Debtor (i) has its principal place of business or executive office  outside the United States or (ii) whose billing address (as set forth in the applicable invoice for such  Account) is not in the United States;  (p) the Account is payable in a currency other than United States dollars;  (q) the Account Debtor is an individual;  (r) the Borrower owning such Account has not signed and delivered to Agent  notices, to the extent requested by Agent, directing the Account Debtors to make payment to the  applicable Lockbox Account;   (s) the Account includes late charges or finance charges (but only such portion of  the Account shall be ineligible);  (t) the Account arises out of the sale of any Inventory upon which any other Person  holds, claims or asserts a Lien (other than Permitted Liens arising solely by operation of law, Liens in  favor of Agent or Liens that have been expressly subordinated to the Liens of Agent);  (u) any Accounts with customer deposits and/or with respect to which Borrower has  received an upfront payment to the extent of such customer deposit and/or upfront payment;  (v) any Accounts owing from an Account Debtor with respect to which Borrower  has received Deferred Revenue (but only to the extent of such Deferred Revenue); or  (w) the Account or Account Debtor fails to meet such other specifications and  requirements which may from time to time be established by Agent in its Permitted Discretion, including,  without limitation, on the basis of the initial collateral audit conducted by Agent following the Closing  Date.   





 






12  MidCap / Viewray / Credit, Security and Guaranty Agreement               “Eligible Assignee” means (a) a Lender, (b) an Affiliate of a Lender, (c) an Approved Fund, and  (d) any other Person (other than a natural person) approved by Agent; provided, however, that  notwithstanding the foregoing, (x) so long as no Event of Default has occurred and is continuing, (i)  “Eligible Assignee” shall not include any Credit Party or any of a Credit Party’s Subsidiaries, and (y) no  proposed assignee intending to assume all or any portion of the Revolving Loan Commitment or any  unfunded portion of the Term Loan Commitments shall be an Eligible Assignee unless such proposed  assignee either already holds a portion of such Revolving Loan Commitment or Term Loan Commitments,  or has been approved as an Eligible Assignee by Agent.    “Eligible Foreign Account” means an account receivable of a Borrower that is an obligation of an  Eligible Foreign Account Debtor and is excluded from Eligible Accounts under clause (o) of the definition  of “Eligible Account”, but otherwise constitutes an “Eligible Account”.   “Eligible Foreign Account Debtor” means each Account Debtor that has its principal place of  business or executive office located in Belgium, Netherlands, United Kingdom, France or Italy and any  other Account Debtor that has its principal place of business or executive office outside the United States  as Agent may agree to from time to time in writing in its Permitted Discretion.  “Eligible Inventory” means Inventory owned by a Borrower and acquired and dispensed by such  Borrower in the Ordinary Course of Business that Agent, in its Permitted Discretion, deems to be Eligible  Inventory.  Without limiting the generality of the foregoing, no Inventory shall be Eligible Inventory if:  (a) such Inventory is not owned by a Borrower free and clear of all Liens and rights  of any other Person (including the rights of a purchaser that has made progress payments and the rights  of a surety that has issued a bond to assure such Borrower’s performance with respect to that Inventory)  except for Permitted Liens arising solely by operation of law, Liens in favor of Agent or Liens that have  been expressly subordinated to the Liens of Agent;  (b) such Inventory is placed on consignment or is in transit;  (c) such Inventory is covered by a negotiable document of title, unless such  document has been delivered to Agent with all necessary endorsements, free and clear of all Liens except  for Permitted Liens arising solely by operation of law and those in favor of Agent;  (d) such Inventory is excess, obsolete, unsalable, shopworn, seconds, damaged, unfit  for sale, unfit for further processing, is of substandard quality or is not of good and merchantable quality;  (e) such Inventory consists of marketing materials, display items or packing or  shipping materials, manufacturing supplies or Work-In-Process;  (f) such Inventory is not subject to a first priority Lien in favor of Agent;  (g) such Inventory consists of goods that can be transported or sold only with  licenses that are not readily available, obtained or assigned to Agent or of Hazardous Materials in  concentrations or amounts that violate applicable Environmental Law;  (h) such Inventory is not covered by casualty insurance acceptable to Agent;  (i) any covenant, representation or warranty contained in the Financing Documents  with respect to such Inventory has been breached in any material respect;  





 






13  MidCap / Viewray / Credit, Security and Guaranty Agreement               (j) such Inventory is located (i) outside of the continental United States or (ii) on  premises where the aggregate amount of all Inventory (valued at cost) of Borrowers located thereon is  less than $10,000;  (k) such Inventory is located on premises with respect to which Agent has not  received a landlord, warehouseman, bailee or mortgagee letter acceptable in form and substance to Agent  unless Agent has instituted a reserve in an amount equal to three (3) months’ rent or third party charges,  as applicable, in respect of such location;   (l) such Inventory consists of (A) discontinued items, (B) slow-moving or excess  items held in inventory, or (C) used items held for resale;  (m) such Inventory does not consist of finished goods or finished component parts  of MRIdian systems;  (n) such Inventory does not meet all standards imposed by any Governmental  Authority, including with respect to its production, acquisition or importation (as the case may be);  (o) such Inventory has an expiration date within the next six (6) months;  (p) [reserved];   (q) such Inventory is held for rental or lease by or on behalf of Borrowers;  (r) such Inventory is subject to any licensing, patent, royalty, trademark, trade name  or copyright agreement with any third parties, which agreement restricts the ability of Agent or any  Lender to sell or otherwise dispose of such Inventory; or  (s) such Inventory fails to meet such other specifications and requirements which  may from time to time be established by Agent in its Permitted Discretion, including, without limitation,  on the basis of the initial collateral audit conducted by Agent following the Closing Date.  Agent and  Borrowers agree that Inventory shall be subject to periodic appraisal by Agent and that valuation of  Inventory shall be subject to adjustment pursuant to the results of such appraisal.  Notwithstanding the  foregoing, the valuation of Inventory shall be subject to any legal limitations on sale and transfer of such  Inventory.   “Environmental Laws” means any present and future federal, state and local laws, statutes,  ordinances, rules, regulations, standards, policies and other governmental directives or requirements, as  well as common law, pertaining to the environment, natural resources, pollution, health (including any  environmental clean-up statutes and all regulations adopted by any local, state, federal or other  Governmental Authority, and any statute, ordinance, code, order, decree, law rule or regulation all of which  pertain to or impose liability or standards of conduct concerning medical waste or medical products,  equipment or supplies), safety or clean-up that apply to any Credit Party and relate to Hazardous Materials,  including, without limitation, the Comprehensive Environmental Response, Compensation and Liability  Act of 1980 (42 U.S.C. § 9601 et seq.), the Resource Conservation and Recovery Act of 1976 (42 U.S.C. §  6901 et seq.), the Federal Water Pollution Control Act (33 U.S.C. § 1251 et seq.), the Hazardous Materials  Transportation Act (49 U.S.C. § 5101 et seq.), the Clean Air Act (42 U.S.C. § 7401 et seq.), the Federal  Insecticide, Fungicide and Rodenticide Act (7 U.S.C. § 136 et seq.), the Emergency Planning and  Community Right-to-Know Act (42 U.S.C. § 11001 et seq.), the Occupational Safety and Health Act (29  U.S.C. § 651 et seq.), the Residential Lead-Based Paint Hazard Reduction Act (42 U.S.C. § 4851 et seq.),  





 






14  MidCap / Viewray / Credit, Security and Guaranty Agreement               any analogous state or local laws, any amendments thereto, and the regulations promulgated pursuant to  said laws, together with all amendments from time to time to any of the foregoing and judicial  interpretations thereof.  “Equipment” means “equipment” as defined in Article 9 of the UCC.  “Equity Interests” means, with respect to any Person, all shares of capital stock, partnership  interests, membership interests in a limited liability company or other ownership in participation or  equivalent interests (however designated, whether voting or non-voting) of such Person’s equity capital  (including any warrants, options or other purchase rights with respect to the foregoing), whether now  outstanding or issued after the Closing Date.  “ERISA” means the Employee Retirement Income Security Act of 1974, as the same may be  amended, modified or supplemented from time to time, and any successor statute thereto, and any and all  rules or regulations promulgated from time to time thereunder.  “ERISA Plan” means any “employee benefit plan”, as such term is defined in Section 3(3) of  ERISA (other than a Multiemployer Plan), which any Credit Party or any Subsidiary maintains, sponsors  or contributes to, or, in the case of an employee benefit plan which is subject to Section 412 of the Code or  Title IV of ERISA, to which any Credit Party or any Subsidiary has any liability, including on account of  any member of the Controlled Group, including any liability by reason of having been a substantial  employer within the meaning of Section 4063 of ERISA at any time during the preceding five (5) years, or  by reason of being deemed to be a contributing sponsor under Section 4069 of ERISA.  “Erroneous Payment” has the meaning specified therefor in Section 13.20.  “Erroneous Payment Deficiency Assignment” has the meaning specified therefor in Section  13.20.  “Erroneous Payment Impacted Loans” has the meaning specified therefor in Section 13.20.  “Erroneous Payment Return Deficiency” has the meaning specified therefor in Section 13.20.  “EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the  Loan Market Association (or any successor person), as in effect from time to time.  “Event of Default” has the meaning set forth in Section 10.1.   “Excluded Accounts” means (a) segregated Deposit Accounts into which there is deposited no  funds other than those intended solely to cover wages and payroll for employees of a Credit Party for a  period of service no longer than two weeks at any time (and related contributions to be made on behalf of  such employees to health and benefit plans) plus balances for outstanding checks for wages and payroll  from prior periods, (b) segregated Deposit Accounts constituting employee withholding accounts and  contain only funds deducted from pay otherwise due to employees for services rendered to be applied  toward the tax obligations of such employees, (c) segregated Deposit Accounts constituting trust, fiduciary  and escrow accounts in which there is not maintained at any point in time funds on deposit greater than  $500,000 in the aggregate for all such accounts, (d) subject to Section 7.4, the JPMorgan Chase checking  account set forth on the Perfection Certificate on the Closing Date (the “Closing Date JPM Account”);  provided that the aggregate funds on deposit in the Closing Date JPM Account do not, at any time, exceed  $100,000, (e) subject to Section 7.4, those certain deposit accounts of Borrower ending in 0758, -6164 and  





 






15  MidCap / Viewray / Credit, Security and Guaranty Agreement               -5109 at PNC Bank set forth on the Perfection Certificate on the Closing Date (collectively, the “Closing  Date PNC Accounts”); provided that the aggregate funds on deposit in the Closing Date PNC Accounts  do not, at any time, exceed $1,250,000, and (f) Deposit Accounts or Securities Accounts holding cash or  Cash Equivalents described in clause (o), (p) and (q) of the definition Permitted Liens (and subject to the  cap set forth therein); provided that the accounts described in clauses (a) through (f) above shall be used  solely for the purposes described in such clauses.    “Excluded Perfection Assets” means, collectively:   (a) Excluded Accounts;    (b) letter of credit rights with a value of less than $100,000 individually or $250,000  in the aggregate (other than to the extent consisting of a supporting obligation or that can be perfected by  the filing of a UCC financing statement);    (c) commercial tort claims where the amount of damages claimed by the applicable  Credit Party is less than $250,000 in the aggregate for all such commercial tort claims;     (d) Electronic Chattel Paper or tangible Chattel Paper, in each case, with a value of  less than $100,000 individually or $250,000 in the aggregate (other than to the extent consisting of a  supporting obligation or that can be perfected by the filing of a UCC financing statement); and     (e) motor vehicles, aircraft and other assets subject to certificates of title with an  aggregate net book value (as reasonably determined by the Borrowers) of less than $250,000 (other than to  the extent a security interest thereon can be perfected by the filing of a financing statement under the UCC).   “Excluded Property” means, collectively:  (a) prior to the occurrence of a Springing IP Lien Event, all Intellectual Property  except (i) to the extent that it is necessary under applicable law to have a Lien and security interest in  any such Intellectual Property in order to have a perfected Lien and security interest in and to IP Proceeds  (defined below), and for the avoidance of any doubt, the Collateral shall include, and Agent shall have  a Lien and security interest in, (A) all IP Proceeds, and (B) all payments with respect to IP Proceeds that  are received after the commencement of a bankruptcy or insolvency proceeding, and (ii) Intellectual  Property constituting computer programs, tapes, programs, discs, information, records, and data, all  computers, word processors, printers, switches, interfaces, web servers, website service contracts,  internet connection contract or line lease, website hosting service contract, website license agreements,  back-up copies of website content, contracts with website advertisers, technology escrow agreements,  website content development agreements, all rights, of whatever form, in and to domain names,  instructional material, and connectors and all parts, accessories, additions, substitutions, or options  together with all property or equipment used in connection with any of the above or which are used to  operate or cause to operate any features, special applications, format controls, options or software of any  or all of the above-mentioned items, in all cases of this clause (ii), solely to the extent needed to assist  in the enforcement of a security interest against the Accounts; provided, however, that, upon the  occurrence of a Springing IP Lien Event and continuing at all times thereafter (whether or not the  Springing IP Lien Event continues), Intellectual Property shall no longer constitute “Excluded Property”  pursuant to this clause (a)  and “Collateral” shall immediately include all Intellectual Property of each  Credit Party (including, for the avoidance of doubt, all IP Proceeds) automatically and without notice or  any further action by Agent, any Lender or any Credit Party;  





 






16  MidCap / Viewray / Credit, Security and Guaranty Agreement               (b) any lease, license, contract, permit, letter of credit, purchase money  arrangement, instrument or agreement to which any Credit Party is a party or any of its rights or interests  thereunder if and to the extent that the grant of such security interest shall constitute a result in (i) the  abandonment, invalidation or unenforceability of any right, title or interest of any Credit Party therein  or (ii) result in a breach or termination pursuant to the terms of, or default under, any such lease, license,  contract, permit, letter of credit, purchase money arrangement, instrument or agreement;   (c) any governmental licenses or state or local franchises, charters and  authorizations, to the extent that Agent may not validly possess a security interest in any such license,  franchise, charter or authorization under applicable Law;   (d) any asset which is subject to a purchase money Lien or Capital Lease permitted  hereunder to the extent the granting of a security interest in such asset is prohibited pursuant to the terms  of the contract governing such purchase money Lien or Capital Lease;   (e) any “intent-to-use” trademarks or service mark applications for which an  amendment to allege use or statement of use has not been filed under 15 U.S.C. § 1051 Section 1(c) or  Section 1(d), respectively or if filed, has not been deemed in conformance with 15 U.S.C. § 1051(a) or  examined and accepted, respectively by the United States Patent and Trademark Office; and  (f) more than 65% of the voting capital stock of any Restricted Foreign Subsidiary  to the extent that the pledge of a greater percentage of such voting stock would reasonably be expected  to have a material adverse tax consequence to such Borrower.   provided that (x) any such limitation described in the foregoing clauses (a) and (b) on the security interests  granted hereunder shall apply only to the extent that any such prohibition could not be rendered ineffective  pursuant to the UCC or any other applicable Law (including Sections 9-406, 9-407 and 9-408 of the UCC)  or principles of equity, (y) in the event of the termination or elimination of any such prohibition or the  requirement for any consent contained in such contract, agreement, permit, lease or license or in any  applicable Law, to the extent sufficient to permit any such item to become Collateral hereunder, or upon  the granting of any such consent, or waiving or terminating any requirement for such consent, a security  interest in such contract, agreement, permit, lease, license, franchise, authorization or asset shall be  automatically and simultaneously granted hereunder and shall be included as Collateral hereunder, and  (z) all rights to payment of money due or to become due pursuant to, and all products and Proceeds (and  rights to the Proceeds) from the sale of, any Excluded Property shall be and at all times remain subject to  the security interests created by this Agreement (unless such Proceeds would independently constitute  Excluded Property).   “Excluded Taxes” means any of the following Taxes imposed on or with respect to Agent, Term  Loan Servicer, any Lender or any other recipient of any payment to be made by or on behalf of any  obligation of the Credit Parties hereunder or the Obligations or required to be withheld or deducted from a  payment to Agent, Term Loan Servicer, such Lender or such recipient (including any interest and penalties  thereon):  (a) Taxes to the extent imposed on or measured by Agent’s, Term Loan Servicer’s any Lender’s  or such recipient’s net income (however denominated), branch profits Taxes, and franchise Taxes and  similar Taxes, in each case, (i) imposed by the jurisdiction (or any political subdivision thereof) under  which Agent, Term Loan Servicer, such Lender or such recipient is organized, has its principal office or  conducts business with respect to entering into any of the Financing Documents or taking any action  thereunder or (ii) that are Other Connection Taxes; (b) in the case of a Lender, United States withholding  Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable  interest in the Loans pursuant to a Law in effect on the date on which (i) such Lender becomes a party to  





 






17  MidCap / Viewray / Credit, Security and Guaranty Agreement               this Agreement other than as a result of an assignment requested by a Credit Party under Section 2.8(i) or  Section 11.17(c) or (ii) such Lender changes its lending office for funding its Loan, except in each case to  the extent that, pursuant to Section 2.8, amounts with respect to such Taxes were payable either to such  Lender’s assignor immediately before such Lender acquired the applicable interest in a Loan, Revolving  Loan Commitments or Term Loan Commitment or to such Lender immediately before it changed its lending  office; (c) Taxes attributable to Agent’s, Term Loan Servicer’s, such Lender’s or such recipient’s failure to  comply with Section 2.8(c); and (d) any U.S. federal withholding taxes imposed in respect of a Lender  under FATCA.  “FATCA” means Sections 1471 through 1474 of the Code as of the date of this Agreement (or any  amended or successor version that is substantively comparable and not materially more onerous to comply  with), any current or future U.S. Treasury regulations or official interpretations thereof and any agreement  entered into pursuant to the implementation of Section 1471(b)(1) of the Code, and any intergovernmental  agreement between the United States Internal Revenue Service, the U.S. Government and any governmental  or taxation authority under any other jurisdiction which agreement’s principal purposes deals with the  implementation of such sections of the Code.  “FDA” means the Food and Drug Administration of the United States of America, any comparable  state or local Governmental Authority, any comparable Governmental Authority in any non-United States  jurisdiction, and any successor agency of any of the foregoing.  “FDCA” means the Federal Food, Drug and Cosmetic Act, as amended, 21 U.S.C. Section 301 et  seq., and all regulations promulgated thereunder.  “Federal Funds Rate” means, for any day, the rate of interest per annum (rounded upwards, if  necessary, to the nearest whole multiple of 1/100 of 1%) equal to the weighted average of the rates on  overnight Federal funds transactions with members of the Federal Reserve System as published by the  Federal Reserve Bank of New York on the Business Day next succeeding such day, provided, however,  that (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such  transactions on the next preceding Business Day, and (b) if no such rate is so published on such next  preceding Business Day, the Federal Funds Rate for such day shall be the average rate quoted to Agent on  such day on such transactions as determined by Agent in a commercially reasonable manner.  “Fee Letter” means each agreement between Agent (and to the extent applicable Term Loan  Servicer) and Borrower relating to fees payable to Agent and/or Lenders in connection with this Agreement.  “Financing Documents” means this Agreement, any Notes, the Security Documents, each Fee  Letter, each subordination or intercreditor agreement pursuant to which any Debt and/or any Liens securing  such Debt are subordinated to all or any portion of the Obligations and all other documents, instruments  and agreements related to the Obligations and heretofore executed, executed concurrently herewith or  executed at any time and from time to time hereafter, as any or all of the same may be amended,  supplemented, restated or otherwise modified from time to time.    “Foreign Lender” has the meaning set forth in Section 2.8(c)(i).  “GAAP” means generally accepted accounting principles set forth from time to time in the opinions  and pronouncements of the Accounting Principles Board and the American Institute of Certified Public  Accountants and statements and pronouncements of the Financial Accounting Standards Board (or agencies  with similar functions of comparable stature and authority within the United States accounting profession),  which are applicable to the circumstances as of the date of determination.  





 






18  MidCap / Viewray / Credit, Security and Guaranty Agreement               “General Intangible” means any “general intangible” as defined in Article 9 of the UCC, and any  personal property, including things in action, other than accounts, chattel paper, commercial tort claims,  deposit accounts, documents, goods, instruments, investment property, letter-of-credit rights, letters of  credit, money, and oil, gas or other minerals before extraction, but including payment intangibles and  software.  “Good Manufacturing Practices” means current good manufacturing practices, as set forth in 21  C.F.R. Parts 210 and 211.  “Government Contract” means any contract between the United States or any department, agency  or instrumentality of the United States and a Credit Party.  “Governmental Account Debtor” means any Account Debtor that is a Governmental Authority,  including, without limitation, the Government Account Debtors listed on Schedule 1.1(b) hereto.  “Governmental Authority” means any nation or government, any state, local or other political  subdivision thereof, and any agency, department or Person exercising executive, legislative, judicial,  regulatory or administrative functions of or pertaining to government and any corporation or other Person  owned or controlled (through stock or capital ownership or otherwise) by any of the foregoing, whether  domestic or foreign.  “Gross Margin Percentage” means for any Defined Period, the quotient of (a) gross revenue of  Viewray Technologies and its Consolidated Subsidiaries for such Defined Period (as determined in  accordance with GAAP) minus total cost of revenue  of Viewray Technologies and its Consolidated  Subsidiaries for such Defined Period (as determined in accordance with GAAP) divided by (b) gross  revenue of Viewray Technologies and its Consolidated Subsidiaries for such Defined Period (as determined  in accordance with GAAP), expressed as a percentage. For the avoidance of doubt, part (a) of the calculation  of Gross Margin Percentage shall be calculated consistent with the calculation of “gross profit” in  Viewray’s Quarterly Report on Form 10-Q filed with the SEC for the fiscal quarter ended September 30,  2022 and part (b) of the calculation of Gross Margin Percentage shall be calculated consistent with the  calculation of “Total revenue” in Viewray’s Quarterly Report on Form 10-Q filed with the SEC for the  fiscal quarter ended September 30, 2022.   “Guarantee” by any Person means any obligation, contingent or otherwise, of such Person directly  or indirectly guaranteeing any Debt or other obligation of any other Person and, without limiting the  generality of the foregoing, any obligation, direct or indirect, contingent or otherwise, of such Person (a) to  purchase or pay (or advance or supply funds for the purchase or payment of) such Debt or other obligation  (whether arising by virtue of partnership arrangements, by agreement to keep-well, to purchase assets,  goods, securities or services, to take-or-pay, or to maintain financial statement conditions or otherwise), or  (b) entered into for the purpose of assuring in any other manner the obligee of such Debt or other obligation  of the payment thereof or to protect such obligee against loss in respect thereof (in whole or in part),  provided, however, that the term Guarantee shall not include endorsements for collection or deposit in the  Ordinary Course of Business.  The term “Guarantee” used as a verb has a corresponding meaning.  “Guarantor” means each Credit Party (other than a Borrower) that has executed or delivered, or  shall in the future execute or deliver, this Agreement as a Guarantor or any other Guarantee of any portion  of the Obligations.  “Hazardous Materials” means petroleum and petroleum products and compounds containing  them, including gasoline, diesel fuel and oil; explosives, flammable materials; radioactive materials;  





 






19  MidCap / Viewray / Credit, Security and Guaranty Agreement               polychlorinated biphenyls and compounds containing them; lead and lead-based paint; asbestos or asbestos- containing materials; underground or above-ground storage tanks, whether empty or containing any  substance; any substance the presence of which is prohibited by any Environmental Laws; toxic mold, any  substance that requires special handling; and any other material or substance now or in the future defined  as a “hazardous substance,” “hazardous material,” “hazardous waste,” “toxic substance,” “toxic pollutant,”  “contaminant,” “pollutant” or other words of similar import within the meaning of any Environmental Law,  including:  (a) any “hazardous substance” defined as such in (or for purposes of) CERCLA, or any so-called  “superfund” or “superlien” Law, including the judicial interpretation thereof; (b) any “pollutant or  contaminant” as defined in 42 U.S.C.A. § 9601(33); (c) any material now defined as “hazardous waste”  pursuant to 40 C.F.R. Part 260; (d) any petroleum or petroleum by-products, including crude oil or any  fraction thereof; (e) natural gas, natural gas liquids, liquefied natural gas, or synthetic gas usable for fuel;  (f) any “hazardous chemical” as defined pursuant to 29 C.F.R. Part 1910; (g) any toxic or harmful  substances, wastes, materials, pollutants or contaminants (including, without limitation, asbestos,  polychlorinated biphenyls, flammable explosives, radioactive materials, infectious substances, materials  containing lead-based paint or raw materials which include hazardous constituents); and (h) any other toxic  substance or contaminant that is subject to any Environmental Laws or other past or present requirement of  any Governmental Authority.    “Hazardous Materials Contamination” means contamination (whether now existing or hereafter  occurring) of the improvements, buildings, facilities, personalty, soil, groundwater, air or other elements  on or of the relevant property by Hazardous Materials, or any derivatives thereof, or on or of any other  property as a result of Hazardous Materials, or any derivatives thereof, generated on, emanating from or  disposed of in connection with the relevant property.  “Healthcare Laws” means all applicable Laws relating to the procurement, development,  provision, clinical and non-clinical evaluation or investigation, product approval or clearance, manufacture,  production, analysis, distribution, dispensing, importation, exportation, use, handling, quality,  reimbursement, sale, labeling, advertising, promotion, or postmarket requirements of any medical device  or other product (including, without limitation, any ingredient or component of, or accessory to, the  foregoing products) subject to regulation under the FDCA or otherwise by the FDA, and similar state or  foreign laws, controlled substance laws, pharmacy laws, consumer product safety laws, Medicare,  Medicaid, TRICARE, and all laws, policies, procedures, requirements and regulations pursuant to which  Regulatory Required Permits are issued, in each case, as the same may be amended from time to time.   “Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to  any payment made by or on account of any obligation of Borrowers or any other Credit Party under any  Financing Documents and (b) to the extent not otherwise described in (a), Other Taxes.  “Instrument” means “instrument”, as defined in Article 9 of the UCC.  “Intellectual Property” means all copyright rights, copyright applications, copyright registrations  and like protections in each work of authorship and derivative work, whether published or unpublished, any  patents, patent applications and like protections, including improvements, divisions, continuations,  renewals, reissues, extensions, and continuations-in-part of the same, trademarks, trade names, service  marks, mask works, rights of use of any name, domain names, or any other similar rights, any applications  therefor, whether registered or not, know-how, operating manuals, trade secret rights, clinical and non- clinical data, rights to unpatented inventions, and any claims for damage by way of any past, present, or  future infringement of any of the foregoing.   





 






20  MidCap / Viewray / Credit, Security and Guaranty Agreement               “Intellectual Property Security Agreement” means an Intellectual Property Security Agreement  in the form attached hereto as Exhibit I, which agreement shall become effective in accordance with the  terms of Section 4.16(b).  “Inventory” means “inventory” as defined in Article 9 of the UCC.  “Investment” means, with respect to any Person, directly or indirectly, (a) to purchase or acquire  any stock or stock equivalents, or any obligations or other securities of, or any interest in, any Person,  including the establishment or creation of a Subsidiary, (b) to make, commit to make or otherwise  consummate any Acquisition, or (c) make, purchase or hold any advance, loan, extension of credit or capital  contribution to or in, or any other investment in, any Person.  The amount of any Investment shall be the  original cost of such Investment plus the cost of all additions thereto, without any adjustments for increases  or decreases in value, or write-ups, write-downs or write-offs with respect thereto.  “IP Proceeds” means, collectively, all cash, Accounts, license and royalty fees, claims, products,  awards, judgments, insurance claims, and other revenues, proceeds or income, arising out of, derived from  or relating to any Intellectual Property of any Credit Party, and any claims for damage by way of any past,  present or future infringement of any Intellectual Property of any Credit Party (including, without  limitation, all cash, royalty fees, other proceeds, Accounts and General Intangibles that consist of rights of  payment to or on behalf of a Credit Party and the proceeds from the sale, licensing or other disposition of  all or any part of, or rights in, any Intellectual Property by or on behalf of a Credit Party).  “IRS” has the meaning set forth in Section 2.8(c)(i).  “Joinder Requirements” has the meaning set forth in Section 4.11(c).  “L/C Cash Collateral Accounts” means, collectively, each segregated Deposit Account from time  to time identified to Agent in writing established by Borrower for the sole purpose of securing Borrower’s  obligations under clause (h) of the definition Permitted Contingent Obligations and containing only such  cash or Cash Equivalents that have been required to be pledged to secure such obligations of Borrower;  provided, that the aggregate amount of cash or Cash Equivalents deposited in all such L/C Cash Collateral  Accounts does not, at any time, exceed $4,000,000 in the aggregate.  “Laws” means any and all federal, state, provincial, territorial, local and foreign statutes, laws,  judicial decisions, regulations, ordinances, rules, judgments, orders, decrees, codes, injunctions, permits,  governmental agreements and governmental restrictions, whether now or hereafter in effect, which are  applicable to any Credit Party in any particular circumstance.  “Laws” includes, without limitation,  Healthcare Laws, Environmental Laws and applicable U.S. and non-U.S. export control laws and  regulations, including without limitation the Export Administration Regulations.  “Lender” means each of (a) MCF, in its capacity as a lender hereunder, (b) each other Person party  hereto in its capacity as a lender hereunder, (c) each other Person that becomes a party hereto as Lender  pursuant to Section 11.17, and (d) the respective successors of all of the foregoing, and “Lenders” means  all of the foregoing.    “Lien” means, with respect to any asset, any mortgage, lien, pledge, charge, security interest or  encumbrance of any kind, in respect of such asset.  For the purposes of this Agreement and the other  Financing Documents, any Credit Party or any Subsidiary thereof shall be deemed to own subject to a Lien  any asset which it has acquired or holds subject to the interest of a vendor or lessor under any conditional  sale agreement, Capital Lease or other title retention agreement relating to such asset.  





 






21  MidCap / Viewray / Credit, Security and Guaranty Agreement               “Litigation” means any action, suit or proceeding before any court, mediator, arbitrator or  Governmental Authority.  “Loan Account” means the Term Loan Account or the Revolving Loan Account, as applicable.  “Loan(s)” means the Term Loan, the Revolving Loans and each and every advance under the Term  Loan, or any combination of the foregoing, as the context may require.  All references herein to the  “making” of a Loan or words of similar import mean, with respect to the Term Loan, the making of any  advance in respect of a Term Loan.  “Lockbox” has the meaning set forth in Section 2.11(a).  “Lockbox Account” means a segregated account or segregated accounts maintained at the  Lockbox Bank into which collections of Accounts are paid.  “Lockbox Bank” has the meaning set forth in Section 2.11.  “Margin Stock” means “margin stock” as such term is defined in Regulation T, U, or X of the  Board of Governors of the Federal Reserve System.  “Market Withdrawal” means a Person’s Removal or Correction of a distributed product which  involves a minor violation that would not be subject to legal action by the FDA or which involves no  violation, e.g., normal stock rotation practices, routine equipment adjustments and repairs, etc.   “Material Adverse Effect” means with respect to any event, act, condition or occurrence of  whatever nature (including any adverse determination in any litigation, arbitration, or governmental  investigation or proceeding), whether singly or in conjunction with any other event or events, act or acts,  condition or conditions, occurrence or occurrences, whether or not related, a material adverse change in, or  a material adverse effect upon, any of (a) the condition (financial or otherwise), operations, business, or  properties of the Credit Parties taken as a whole, (b) the rights and remedies of Agent, Term Loan Servicer,  or Lenders under any Financing Document, or the ability of any Credit Party to perform any of its  obligations under any Financing Document to which it is a party, (c) the legality, validity or enforceability  of any Financing Document, (d) the existence, perfection or priority of any security interest granted to the  Agent or the Lenders in any Financing Document, except solely as a result of any action or inaction of  Agent or any Lender (provided that such action or inaction is not caused by a Credit Party’s failure to  comply with the terms of the Financing Documents) (e) the value of any material Collateral, or (f) a material  impairment of the prospect of repayment of any portion of the Obligations.   “Material Contracts” means (a) the agreements listed on Schedule 3.17, and (b) any other  agreement or contract to which such Credit Party or its Subsidiaries is a party the termination of which  could reasonably be expected to result in a Material Adverse Effect.    “Material Intangible Assets” means all of (a) Intellectual Property owned by the Credit Parties or  their Subsidiaries and (b) license or sublicense agreements or other agreements with respect to rights in  Intellectual Property not owned by a Credit Party or a Subsidiary thereof, in each case, that are material to  the condition (financial or otherwise), business or operations of the Credit Parties and their Subsidiaries  (taken as a whole).  “Maturity Date” means November 1, 2027.   





 






22  MidCap / Viewray / Credit, Security and Guaranty Agreement               “Maximum Lawful Rate” has the meaning set forth in Section 2.7.  “MCF” means MidCap Funding IV Trust, a Delaware statutory trust, and its successors and  assigns.  “Minimum Balance” means, at any time, an amount that equals the product of: (a) the average  Borrowing Base (or, if less on any given day, the Revolving Loan Commitment) during the immediately  preceding month multiplied by (b) the Minimum Balance Percentage for such month.  “Minimum Balance Fee” means a fee equal to (a) the positive difference, if any, remaining after  subtracting (i) the average end-of-day principal balance of Revolving Loans outstanding during the  immediately preceding month (without giving effect to the clearance day calculations referenced above or  in Section 2.2(a)) from (ii) the Minimum Balance multiplied by (b) the average interest rate applicable to  the Revolving Loans during such month.  “Minimum Balance Percentage” means fifteen percent (15.0%).  “Multiemployer Plan” means a multiemployer plan within the meaning of Section 4001(a)(3) of  ERISA to which any Credit Party or any other member of the Controlled Group (or any Person who in the  last five years was a member of the Controlled Group) is making or accruing an obligation to make  contributions or has within the preceding five plan years (as determined on the applicable date of  determination) made contributions.  “Net Revenue” means, for any period, the net revenue of Credit Parties and their Consolidated  Subsidiaries for such period, as determined in accordance with GAAP.   “Non-Funding Lender” has the meaning set forth in Section 11.18.  “Notes” has the meaning set forth in Section 2.3.  “Notice of Borrowing” means a notice of a Responsible Officer of Borrower Representative,  appropriately completed and substantially in the form of Exhibit D hereto.  “Obligations” means all obligations, liabilities and indebtedness (monetary (including, without  limitation, the payment of interest and other amounts arising after the commencement of any case with  respect to any Credit Party under the Bankruptcy Code or any similar statute which would accrue and  become due but for the commencement of such case, whether or not such amounts are allowed or allowable  in whole or in part in such case) or otherwise) of each Credit Party under this Agreement or any other  Financing Document, in each case howsoever created, arising or evidenced, whether direct or indirect,  absolute or contingent, now or hereafter existing, or due or to become due.    “OFAC” means the U.S. Department of Treasury Office of Foreign Assets Control.  “OFAC Lists” means, collectively, the Specially Designated Nationals and Blocked Persons List  maintained by OFAC pursuant to Executive Order No. 13224, 66 Fed. Reg. 49079 (Sept. 25, 2001) and/or  any other list of terrorists or other restricted Persons maintained pursuant to any of the rules and regulations  of OFAC or pursuant to any other applicable Executive Orders.  “Orderly Liquidation Value” means the net amount (after all costs of sale), expressed in terms of  money, which Agent, in its Permitted Discretion, estimates can be realized from a sale, as of a specific date,  





 






23  MidCap / Viewray / Credit, Security and Guaranty Agreement               given a reasonable period to find a purchaser(s), with the seller being compelled to sell on an as-is/where- is basis, as reflected in the most recent appraisal delivered hereunder.  “Ordinary Course of Business” means, in respect of any transaction involving any Credit Party  or any Subsidiary, the ordinary course of business of such Credit Party or Subsidiary, as conducted by such  Credit Party or Subsidiary in accordance with past practices and undertaken by such Person in good faith  and not for purposes of evading any covenant or restriction in any Financing Document.  “Organizational Documents” means, with respect to any Person other than a natural person, the  documents by which such Person was organized (such as a certificate of incorporation, articles of  incorporation, certificate of limited partnership or articles of organization, and including, without limitation,  any certificates of designation for preferred stock or other forms of preferred equity) and which relate to  the internal governance of such Person (such as by-laws, a partnership agreement or an operating  agreement, joint venture agreement, limited liability company agreement or members agreement), including  any and all shareholder agreements or voting agreements relating to the capital stock or other Equity  Interests of such Person.  “Other Connection Taxes” means taxes imposed as a result of a present or former connection  between Agent, Term Loan Servicer or any Lender and the jurisdiction imposing such tax (other than  connections arising from Agent, Term Loan Servicer or such Lender having executed, delivered, become a  party to, performed its obligations under, received payments under, engaged in any other transaction  pursuant to or enforced any Financing Document, or sold or assigned an interest in any Loans or any  Financing Document).  “Other Taxes” means all present or future stamp, court or documentary, intangible, recording,  filing or similar taxes that arise from any payment made under, from the execution, delivery, performance,  enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with  respect to, any Financing Document, except any such taxes that are Other Connection Taxes imposed with  respect to an assignment (other than an assignment made pursuant to Section 2.8(i)).  “Participant” has the meaning set forth in Section 11.17.   “Participant Register” has the meaning set forth in Section 11.17(a)(iii).   “Payment Account” means, as applicable, the Term Loan Payment Account or the Revolving Loan  Payment Account.  “Payment Recipient” has the meaning specified therefor in Section 13.20 of this Agreement.  “PBGC” means the Pension Benefit Guaranty Corporation and any Person succeeding to any or  all of its functions under ERISA.  “Pension Plan” means any ERISA Plan that is subject to Section 412 of the Code or Title IV of  ERISA.   “Perfection Certificate” means the Perfection Certificate delivered to Agent as of the Closing  Date, as amended, restated, supplemented or otherwise modified from time to time in accordance with the  terms of this Agreement.  





 






24  MidCap / Viewray / Credit, Security and Guaranty Agreement               “Permit” means all licenses, certificates, accreditations, product clearances or approvals, supplier  numbers, marketing authorizations, device authorizations and approvals, other authorizations, franchises,  qualifications, accreditations, registrations, permits, consents and approvals of a Credit Party issued or  required under Laws applicable to the business of the Credit Parties or any of their Subsidiaries or necessary  in the manufacturing, importing, exporting, possession, ownership, warehousing, marketing, promoting,  sale, labeling, furnishing, distribution or delivery of goods or services under Laws applicable to the business  of the Credit Parties or any of their Subsidiaries.   Without limiting the generality of the foregoing, “Permit”  includes any Regulatory Required Permit.   “Permitted Asset Dispositions” means the following Asset Dispositions:   (a) dispositions of Inventory in the Ordinary Course of Business and not pursuant to any bulk sale;   (b) dispositions of furniture, fixtures and equipment in the Ordinary Course of Business that the  applicable Credit Party or Subsidiary determines in good faith is no longer used or useful in  the business of such Credit Party and its Subsidiaries and with a fair salable value not to exceed  Five Hundred Thousand Dollars ($500,000) in the aggregate for all such furniture, fixtures and  equipment in any calendar year;   (c) expiration, forfeiture, invalidation, cancellation, abandonment or lapse (including, without  limitation, the narrowing of claims) of Intellectual Property (other than Material Intangible  Assets) that is, in the reasonable good faith judgment of a Credit Party, no longer useful in the  conduct of the business of the Credit Parties or any of their Subsidiaries;  (d) Permitted Licenses;  (e) the use of cash and Cash Equivalents to make Permitted Investments and otherwise in the  Ordinary Course of Business;  (f) (i) Asset Dispositions from a Credit Party to any other Credit Party, (ii) Asset Dispositions  from any Restricted Foreign Subsidiaries to any Credit Party, (iii) Asset Dispositions from any  Restricted Foreign Subsidiary to another Restricted Foreign Subsidiary;  (g) sales, forgiveness or discounting, on a non-recourse basis and in the Ordinary Course of  Business, of past due Accounts (other than Eligible Accounts included in the Borrowing Base)  in connection with the settlement of delinquent Accounts or in connection with the bankruptcy  or reorganization of suppliers or customers in accordance with the applicable terms of this  Agreement;  (h) to the extent constituting an Asset Disposition, the granting of Permitted Liens;   (i) Asset Dispositions to customers of Equipment located at a customer’s site for research and  collaboration;  (j)  (i) any termination of any lease, sublease, license or sub-license (other than any licenses  constituting Material Contracts or Material Intangible Assets) in the Ordinary Course of  Business (and any related Asset Disposition of improvements made to leased real property  resulting therefrom), (ii) any expiration of any option agreement in respect of real or personal  property, and (iii) any surrender or waiver of contractual rights or the settlement, release or  





 






25  MidCap / Viewray / Credit, Security and Guaranty Agreement               surrender of contractual rights or litigation claims (including in tort) in the Ordinary Course of  Business;  (k) any sale of motor vehicles and information technology equipment purchased at the end of  an operating lease and resold thereafter; and  (l) dispositions of tangible personal property (and not, for the avoidance of doubt, any Intellectual  Property or other General Intangibles) so long as (i) the assets subject to such Asset  Dispositions are sold for fair value, as determined by the Borrowers in good faith, (ii) at least  75% of the consideration therefor is cash or Cash Equivalents, (iii) the aggregate amount of  such Asset Dispositions in any twelve (12) month period does not exceed $3,000,000, and (iv)  no Event of Default has occurred and is continuing or would result from the making of such  disposition.   “Permitted Contest” means, with respect to any tax obligation or other obligation allegedly or  potentially owing from any Credit Party or its Subsidiary to any governmental tax authority or other third  party, a contest maintained in good faith by appropriate proceedings promptly instituted and diligently  conducted and with respect to which such reserve or other appropriate provision, if any, as shall be required  in conformity with GAAP shall have been made on the books and records and financial statements of the  applicable Credit Party(ies); provided, however, that (a) compliance with the obligation that is the subject  of such contest is effectively stayed during such challenge; (b) Credit Parties’ and their Subsidiaries’ title  to, and its right to use, the Collateral is not adversely affected thereby and Agent’s Lien and priority on the  Collateral are not adversely affected, altered or impaired thereby; (c) the Collateral or any part thereof or  any interest therein shall not be in any danger of being sold, forfeited or lost by reason of such contest by  Credit Parties or their Subsidiaries; and (d) upon a final determination of such contest, Credit Parties and  their Subsidiaries shall promptly comply with the requirements thereof.  “Permitted Contingent Obligations” means   (a) Contingent Obligations arising in respect of the Debt under the Financing Documents;   (b) Contingent Obligations resulting from endorsements for collection or deposit in the  Ordinary Course of Business;   (c) Contingent Obligations outstanding on the Closing Date and set forth on Schedule 5.1 (but  not including any refinancings, extensions, increases or amendments to such Debt other  than a Permitted Refinancing);   (d) Contingent Obligations incurred in the Ordinary Course of Business with respect to surety  and appeal bonds, performance bonds and other similar obligations not to exceed Five  Hundred Thousand Dollars ($500,000) in the aggregate at any time outstanding;   (e) Contingent Obligations arising under indemnity agreements with title insurers to cause  such title insurers to issue to Agent mortgagee title insurance policies;   (f) Contingent Obligations arising with respect to customary indemnification obligations in  favor of purchasers in connection with dispositions of personal property assets permitted  under Section 5.6 or in connection with any other commercial agreement entered into by a  Credit Party or a Subsidiary thereof in the Ordinary Course of Business;   





 






26  MidCap / Viewray / Credit, Security and Guaranty Agreement               (g) so long as there exists no Event of Default both immediately before and immediately after  giving effect to any such transaction, Contingent Obligations existing or arising under any  Swap Contract, provided, however, that such obligations are (or were) entered into by a  Credit Party or a Subsidiary in the Ordinary Course of Business for the purpose of directly  mitigating risks associated with liabilities, commitments, investments, assets, or property  held or reasonably anticipated by such Person and not for purposes of speculation;   (h) Contingent Obligations existing or arising in connection with any letter of credit for the  primary purpose of securing a lease of real property in the Ordinary Course of Business,  provided that the aggregate amount of all such letter of credit reimbursement obligations  does not at any time exceed Four Million Dollars ($4,000,000) outstanding;  (i) Contingent Obligations arising under guarantees by a Credit Party of Debt or other  obligations, which Debt or other obligations are otherwise permitted hereunder; provided,  however, that if such obligation is subordinated to the Obligations, such guarantee shall be  subordinated to the same extent; and    (j) other Contingent Obligations not permitted by clauses (a) through (i) above, not to exceed  Three Million Dollars ($3,000,000) in the aggregate at any time outstanding.    “Permitted Debt” means:    (a) Credit Parties Debt to Agent and each Lender under this Agreement and the other  Financing Documents;  (b) Debt incurred as a result of endorsing negotiable instruments received in the Ordinary  Course of Business;   (c) purchase money Debt and Capital Leases not to exceed $3,000,000 in the aggregate at any  time (whether in the form of a loan or a lease) used solely to acquire Equipment used in  the Ordinary Course of Business and secured only by such Equipment and any Permitted  Refinancing thereof;   (d) Debt existing on the date of this Agreement and described on Schedule 5.1 (but not  including any refinancings, extensions, increases or amendments to such Debt other than  any Permitted Refinancing thereof);   (e) so long as there exists no Event of Default both immediately before and immediately after  giving effect to any such transaction, Debt existing or arising under any Swap Contract,  provided, however, that such obligations are (or were) entered into by Borrower or a  Subsidiary in the Ordinary Course of Business for the purpose of directly mitigating risks  associated with liabilities, commitments, investments, assets, or property held or  reasonably anticipated by such Person and not for purposes of speculation;  (f) Debt owed to any Person providing property, casualty, liability, or other insurance to the  Credit Parties, including to finance insurance premiums, so long as the amount of such  Debt is not in excess of the amount of the unpaid cost of, and shall be incurred only to defer  the cost of, such insurance for the policy year in which such Debt is incurred and such Debt  is outstanding only during such policy year;   





 






27  MidCap / Viewray / Credit, Security and Guaranty Agreement               (g) Debt consisting of unsecured intercompany loans and advances incurred by (1) any Credit  Party owing to any other Credit Party, (2) any Credit Party owing to any Restricted Foreign  Subsidiary, (3) any Restricted Foreign Subsidiary owing to any other Restricted Foreign  Subsidiary, or (4) any Restricted Foreign Subsidiary owing to any Credit Party so long as  such Debt constitutes a Permitted Investment of the applicable Credit Party pursuant to  clause (i) of the definition of Permitted Investments and, in each case; provided that any  such Debt owed by a Credit Party shall, at the request of Agent, be subordinated to the  payment in full of the Obligations pursuant to documentation in form and substance  reasonably satisfactory to Agent;  (h) Subordinated Debt;   (i) to the extent also constituting Debt (without duplication), Permitted Contingent  Obligations;   (j) Debt in respect of netting services, overdraft protections and other like services, in each  case incurred in the Ordinary Course of Business;  (k) Debt, in an aggregate amount not to exceed $1,600,000 at any time outstanding, in respect  of credit cards, credit card processing services, debit cards, stored value cards, purchase  cards (including so-called “procurement cards” or “P-cards”) or other similar cash  management or merchant services, in each case, incurred in the Ordinary Course of  Business; provided that, to the extent such Debt is secured, it is secured solely by cash  collateral held in a Credit Card Cash Collateral Account; and   (l) other unsecured Debt not to exceed $3,000,000 in the aggregate at any time at any time  outstanding.   “Permitted Discretion” mean a determination made by Agent in good faith and in the exercise of  reasonable business judgment.   “Permitted Distributions” means the following Distributions:    (a) Distributions by any Subsidiary of a Credit Party to a Credit Party;   (b) dividends payable solely in common Equity Interests (other than Disqualified Equity  Interests) so long as such dividends do not result in a Change in Control;   (c) repurchases of stock of current or former employees, directors or consultants pursuant to  stock purchase agreements so long as an Event of Default does not exist at the time of such  repurchase and would not exist after giving effect to such repurchase;   (d) distributions of Equity Interests (other than Disqualified Equity Interests) upon the  conversion or exchange of Equity Interests (including options and warrants) or  Subordinated Debt (and payments in respect of fractional shares);    (e) cash payments in lieu of the issuance of fractional shares in connection with the exercise  of warrants, options or other securities convertible into or exchangeable for capital stock,  or in connection with dividends, share splits, reverse share splits (or any combination  





 






28  MidCap / Viewray / Credit, Security and Guaranty Agreement               thereof) and other Investments permitted hereunder, in an aggregate maximum amount not  to exceed One Hundred Thousand Dollars ($100,000.00) in any fiscal year; and    (f) cash dividends approved by Borrower’s board of directors, in an aggregate maximum  amount not to exceed One Million Dollars ($1,000,000.00) in any fiscal year so long as  immediately prior to and after giving effect to any such dividend or distribution pursuant  to this clause (f), (i) no Event of Default has occurred and is continuing, or would result  immediately after giving effect to such dividend, and (ii) Borrower has Credit Party  Unrestricted Cash in an aggregate amount equal to or greater than One Hundred Million  Dollars ($100,000,000).     “Permitted Investments” means:    (a) Investments shown on Schedule 5.7 and existing on the Closing Date;   (b) to the extent constituting an Investment, the holding by a Person of cash and Cash  Equivalents owned by such Person;   (c) Investments consisting of the endorsement of negotiable instruments for deposit or  collection or similar transactions in the Ordinary Course of Business;   (d) Investments consisting of (i) travel advances and employee relocation loans and other  employee loans and advances in the Ordinary Course of Business, and (ii) loans to  employees, officers or directors relating to the purchase of equity securities of Borrowers  or their Subsidiaries pursuant to employee stock purchase plans or agreements approved  by Borrowers’ Board of Directors (or other governing body), but the aggregate of all such  loans and advances outstanding pursuant to this clause (d) may not exceed $250,000 at any  time;   (e) Investments (including debt obligations) received in connection with the bankruptcy or  reorganization of customers or suppliers and in settlement of delinquent obligations of, and  other disputes with, customers or suppliers arising in the Ordinary Course of Business;   (f) Investments consisting of notes receivable of, or prepaid royalties and other credit  extensions, to customers and suppliers who are not Affiliates, in the Ordinary Course of  Business, provided, however, that this clause (f) shall not apply to Investments of any  Credit Party in any Subsidiary;   (g) Investments consisting of Deposit Accounts or Securities Accounts in which Agent has  received a Deposit Account Control Agreement or Securities Account Control Agreement,  except in the case of Excluded Accounts;   (h) Investments by (1) any Credit Party in any other Credit Party, (2) any Restricted Foreign  Subsidiary in any other Restricted Foreign Subsidiary; and (3) any Restricted Foreign  Subsidiary in any Borrower or Guarantor; provided that all obligations of the Credit Parties  in connection with any Investment by a Restricted Foreign Subsidiary in any Credit Party  (other than in the form of Equity Interests not constituting Disqualified Equity Interests)  shall be subordinated to the Obligations pursuant to a Subordination Agreement;  





 






29  MidCap / Viewray / Credit, Security and Guaranty Agreement               (i) so long as no Event of Default exists at the time of such Investment or after giving effect  to such Investment, Investments of cash and Cash Equivalents by Credit Parties in a  Restricted Foreign Subsidiary but solely to the extent that (x) the aggregate amount of such  Investments (including payments in respect of intercompany Debt) made with respect to  all Restricted Foreign Subsidiaries does not, at any time, exceed $1,000,000 at any time  outstanding, and (y) with respect to any individual Restricted Foreign Subsidiary, the  amount of such Investments in such Restricted Foreign Subsidiary at any time outstanding  does not exceed the amount necessary to fund the current monthly operating expenses of  such Restricted Foreign Subsidiary (taking into account their revenue from other sources;  provided that in no event shall any Investment be made pursuant to this clause (i) unless  Credit Parties are in compliance with Section 5.19(a) before and after giving effect to such  Investment;   (j) [Reserved];   (k) to the extent constituting Investments, intercompany receivables that arise solely from  customary and reasonable transfer pricing and cost sharing arrangements (i.e., “cost plus”  arrangements) and associated “true-up” payments among the Credit Parties or the  Restricted Foreign Subsidiaries, in each case, that are in the Ordinary Course of Business  and only to the extent such arrangements are entered into in order to accurately reflect the  costs of operating the business of the Restricted Foreign Subsidiaries, as applicable, and/or  to maintain compliance with all applicable jurisdictional Tax requirements;  (l) the granting of Permitted Licenses;  (m) Investments in prepaid expenses, utility and workers’ compensation, performance and  other similar deposits, each as entered into in the Ordinary Course of Business; and  (n) so long as no Event of Default exists at the time of such Investment or after giving effect  to such Investment, other Investments of cash and Cash Equivalents in an amount not  exceeding Three Million Dollars ($3,000,000) in the aggregate at any time outstanding.    “Permitted License” means any non-exclusive license or sublicense of discrete Intellectual  Property rights of Credit Parties or their Subsidiaries so long as all such licenses or sublicenses (i) are  granted to third parties in the Ordinary Course of Business, (ii) do not result in a legal transfer of title to the  licensed property, (iii) have been granted in exchange for fair consideration on commercially reasonable  terms, and (iv) no Event of Default has occurred and is continuing or would result from the granting of such  license or sublicense.   “Permitted Liens” means:    (a) deposits or pledges of cash arising in the Ordinary Course of Business to secure obligations  under workmen’s compensation, social security or similar laws, or under unemployment  insurance (but excluding Liens arising under ERISA or, with respect to any Pension Plan  or Multiemployer Plan, the Code) pertaining to a Credit Party’s or its Subsidiary’s  employees, if any;   (b) deposits or pledges of cash and Cash Equivalents in the Ordinary Course of Business to  secure, without duplication, (i) leases and other obligations of like nature arising in the  





 






30  MidCap / Viewray / Credit, Security and Guaranty Agreement               Ordinary Course of Business and (ii) Permitted Contingent Obligations described in clause  (h) of the definition thereof;   (c) carrier’s, warehousemen’s, mechanic’s, workmen’s, landlord’s materialmen’s or other like  Liens on Collateral arising in the Ordinary Course of Business with respect to obligations  which are not due, or which are being contested pursuant to a Permitted Contest;   (d) Liens for taxes or other governmental charges not at the time delinquent or thereafter  payable without penalty or the subject of a Permitted Contest;   (e) attachments, stay or appeal bonds, judgments and other similar Liens arising in connection  with court proceedings that do not constitute an Event of Default; provided, however, that  the execution or other enforcement of such Liens is effectively stayed and the claims  secured thereby are the subject of a Permitted Contest;   (f) Liens with respect to real estate, easements, rights of way, restrictions, minor defects or  irregularities of title, none of which, individually or in the aggregate, materially interfere  with the benefits of the security intended to be provided by the Security Documents,  materially affect the value or marketability of the Collateral, impair the use or operation of  the Collateral for the use currently being made thereof or impair Credit Parties’ ability to  pay the Obligations in a timely manner or impair the use of the Collateral or the ordinary  conduct of the business of any Credit Party or any Subsidiary and which, in the case of any  real estate that is part of the Collateral, are set forth as exceptions to or subordinate matters  in the title insurance policy accepted by Agent insuring the lien of the Security Documents;   (g) Liens and encumbrances in favor of Agent under the Financing Documents;   (h) Liens, other than on Collateral that is part of the Borrowing Base, existing on the date  hereof and set forth on Schedule 5.2 on the Closing Date and Liens granted in a Permitted  Refinancing of the obligations or liabilities secured by such Liens;   (i) any Lien on any Equipment and the proceeds thereof securing Debt permitted under clause  (c) of the definition of Permitted Debt; provided, however, that such Lien attaches  concurrently with or within twenty (20) days after the acquisition thereof and Liens  incurred in a Permitted Refinancing of such Debt secured by such Liens;  (j) to the extent constituting a Lien, the granting of a Permitted License;  (k) purported Liens evidenced by the filing of precautionary UCC financing statements  relating solely to operating leases or consignments of personal property entered into the  Ordinary Course of Business;  (l) Liens granted in the Ordinary Course of Business on the unearned portion of insurance  premiums securing the financing of insurance premiums to the extent the financing is  permitted clause (f) of the definition of Permitted Debt;  (m) Liens that are rights of set-off, bankers’ liens or similar non-consensual Liens relating to  Deposit Accounts or Securities Accounts in favor of banks, other depositary institutions  and securities intermediaries solely to secure payment of fees and similar costs and  expenses and arising in the Ordinary Course of Business  





 






31  MidCap / Viewray / Credit, Security and Guaranty Agreement               (n) Leases or subleases of real property granted in the Ordinary Course of Business;   (o) Liens, deposits and pledges encumbering cash and Cash Equivalents with a value not to  exceed Five Hundred Thousand Dollars ($500,000) in the aggregate at any time, to secure  the performance of bids, tenders, contracts (other than contracts for the payment of money),  public or statutory obligations, surety, indemnity, performance or other similar bonds or  other similar obligations arising in the Ordinary Course of Business;  (p) Liens solely in respect of the Credit Card Cash Collateral Accounts and amounts deposited  therein to the extent securing obligations permitted pursuant to clause (k) of the definition  of Permitted Debt;  (q) Liens solely in respect of the L/C Cash Collateral Accounts and amounts deposited therein  to the extent securing obligations permitted pursuant to clause (h) of the definition of  Permitted Contingent Obligations; and  (r) Liens in favor of customs and revenue authorities arising as a matter of Law to secure  payment of customs duties in connection with the importation of goods in the Ordinary  Course of Business.  “Permitted Modifications” means (a) such amendments or other modifications to a Borrower’s or  Subsidiary’s Organizational Documents as are required under this Agreement or by applicable Law and  fully disclosed to Agent within thirty (30) days after such amendments or modifications have become  effective, and (b) such amendments or modifications to a Borrower’s or Subsidiary’s Organizational  Documents (other than those involving a change in the name of a Borrower or Subsidiary or involving a  reorganization of a Borrower or Subsidiary under the laws of a different jurisdiction) that would not  adversely affect the rights and interests of Agent or Lenders and fully disclosed to Agent within thirty  (30) days after such amendments or modifications have become effective.  “Permitted Refinancing” means Debt constituting a refinancing, extension or renewal of Debt;  provided that the refinanced, extended, or renewed Debt (a) has an aggregate outstanding principal amount  not greater than the aggregate principal amount of the Debt being refinanced or extended (plus any  reasonable and customary interest, fees, premiums and costs and expenses) (b) has a weighted average  maturity (measured as of the date of such refinancing or extension) and maturity no shorter than that of the  Debt being refinanced or extended, (c) is not entered into as part of a sale leaseback transaction, (d) is not  secured by a Lien on any assets other than the collateral securing the Debt being refinanced or extended,  (e) the obligors of which are the same as the obligors of the Debt being refinanced or extended, (f) is  otherwise on terms no less favorable to Credit Parties and their Subsidiaries, taken as a whole, than those  of the Debt being refinanced or extended, and (g) no Event of Default has occurred and is continuing at the  time such refinancing, extension or renewal occurs or would result therefrom.  “Person” means any natural person, corporation, limited liability company, professional  association, limited partnership, general partnership, joint stock company, joint venture, association,  company, trust, bank, trust company, land trust, business trust or other organization, whether or not a legal  entity, and any Governmental Authority.  “Pledge Agreement” means that certain Pledge Agreement, dated as of the date hereof, executed  by Viewray and certain other Credit Parties in favor of Agent, for the benefit of Lenders, covering all the  Equity Interests respectively owned by the Credit Parties, as amended, restated, or otherwise modified from  time to time.  





 






32  MidCap / Viewray / Credit, Security and Guaranty Agreement               “Prepayment Fee” has the meaning set forth in Section 2.2(h).  “Prime Rate” means the rate of interest per annum from time to time published in the money rates  section of The Wall Street Journal or any successor publication thereto as the “prime rate” then in effect;  provided that, in the event such rate of interest is less than zero, such rate shall be deemed to be zero for  purposes of this Agreement; and provided further that if such rate of interest, as set forth from time to time  in the money rates section of The Wall Street Journal, becomes unavailable for any reason as determined  by Agent, the “Prime Rate” shall mean the rate of interest per annum announced by Agent as the SVB prime  rate in effect at SVB’s principal office in the State of California (such SVB announced Prime Rate not being  intended to be the lowest rate of interest charged by SVB in connection with extensions of credit to debtors).  “Pro Rata Share” means (a) with respect to a Lender’s obligation to make advances in respect of  a Term Loan Tranche 1 and such Lender’s right to receive payments of principal, interest and fees with  respect to the Term Loan Tranche 1, the Term Loan Tranche 1 Commitment Percentage of such Lender;  provided that if the Term Loan Tranche 1 Commitment has been reduced to zero, the numerator shall be  the aggregate unpaid principal amount of such Lender’s portion of the Term Loan Tranche 1 and the  denominator shall be the aggregate unpaid principal amount of the Term Loan Tranche 1, (b) with respect  to a Lender’s obligation to make advances in respect of a Term Loan Tranche 2 and such Lender’s right to  receive payments of principal, interest and fees with respect to the Term Loan Tranche 2, the Term Loan  Tranche 2 Commitment Percentage of such Lender; provided that if the Term Loan Tranche 2 Commitment  has been reduced to zero, the numerator shall be the aggregate unpaid principal amount of such Lender’s  portion of the Term Loan Tranche 2 and the denominator shall be the aggregate unpaid principal amount  of the Term Loan Tranche 2, (c) with respect to a Lender’s obligation to make Revolving Loans, and such  Lender’s right to receive any fee payable to or for the benefit of the Revolving Lenders, the Revolving Loan  Commitment Percentage of such Lender, (d) with respect to a Lender’s right to receive payments of  principal and interest with respect to Revolving Loans, such Lender’s Revolving Loan Exposure with  respect thereto, and (e) for all other purposes (including, without limitation, the indemnification obligations  arising under Section 11.6) with respect to any Lender, the percentage obtained by dividing (i) the sum of  the Revolving Loan Commitment Amount (or, in the event the Revolving Loan Commitment shall have  been reduced to zero, such Lender’s then existing Revolving Loan Outstandings), the then remaining Term  Loan Commitment Amount, and the then outstanding principal advances under the Term Loan of such  Lender, by (ii) the sum of the Revolving Loan Commitment (or, in the event the Revolving Loan  Commitment shall have been reduced to zero, the then existing Revolving Loan Outstandings), the then  remaining Term Loan Commitment, and the then outstanding principal advances under the Term Loans of  all Lenders.  “Proceeding” means any suit, formal charge, complaint, action or hearing, whether judicial or  administrative, before any Governmental Authority or arbitrator.  “Proceeds” means “proceeds” (as defined in Article 9 of the UCC).  “Products” means, from time to time, any products currently manufactured, sold, developed,  tested, marketed or acquired by any Credit Party or any of its Subsidiaries.   “Protective Advance”  means all sums expended by Agent in accordance with the provisions of  Section 10.4 to (a) protect the priority, validity and enforceability of any lien on, and security interests in,  any Collateral and the instruments evidencing and securing the Obligations, (b) prevent the value of any  Collateral from being diminished, or (c) protect any of the Collateral from being materially damaged,  impaired, mismanaged or taken.  





 






33  MidCap / Viewray / Credit, Security and Guaranty Agreement               “Recall” means a Person’s Removal or Correction of a marketed product that the FDA considers  to be in violation of the laws it administers and against which the FDA would initiate legal action, e.g.,  seizure.   “Register” has the meaning set forth in Section 11.17(a)(iii).  “Registered Intellectual Property” means any patent, registered trademark or servicemark,  registered copyright, registered mask work, or any pending application for any of the foregoing.  “Regulatory Reporting Event” has the meaning set forth in Section 4.1.  “Regulatory Required Permit” means any and all licenses, approvals and permits issued by the  FDA, Nuclear Regulatory Commission, or any other applicable Governmental Authority, necessary for (a)  the testing, manufacture, marketing or sale of any Product by any applicable Credit Party or its Subsidiaries  as such activities are being conducted by such Credit Party and its Subsidiaries with respect to such Product  at such time, and those issued by State governments or foreign governments for the conduct of any Credit  Party’s or any Subsidiary’s business or (b) the operation by any applicable Credit Party or its subsidiaries  of any manufacturing facility or other similar operation.   “Removal” means the physical removal of a Product from its point of use to some other location  for repair, modification, adjustment, relabeling, destruction, or inspection.  “Replacement Lender” has the meaning set forth in Section 11.17(c).  “Required Lenders” means at any time Lenders holding (a) of more than fifty percent (50%) the  sum of the Revolving Loan Commitments, the remaining Term Loan Commitments, and the then  outstanding principal advances under the Term Loans (taken as a whole) or (b) if the Revolving Loan  Commitments has been reduced to zero, more than fifty percent (50%) of the sum of the then aggregate  outstanding principal balance of the Revolving Loans, the remaining Term Loan Commitments, and the  then outstanding principal advances under the Term Loans (taken as a whole); provided, however, that,  solely with respect to MidCap Financial Trust and Silicon Valley Bank, so long as such Lender does not  assign any portion of its Revolving Loan Commitment or Revolving Loans or Term Loan Commitment or  Term Loans to any Person other than an Affiliate or an Approved Fund of such Lender, the term “Required  Lenders” shall include such Lender (and any Affiliate to which it assigns its interests).  For purposes of this  definition only, a Lender shall be deemed to include itself, and any Lender that is an Affiliate or Approved  Fund of such Lender.    “Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial  Institution, a UK Resolution Authority.  “Responsible Officer” means any of the President, Chief Executive Officer, Chief Financial  Officer, Chief Legal Officer, Deputy General Counsel, Corporate Secretary or Assistant Corporate  Secretary or any other officer of the applicable Credit Party acceptable to Agent.  “Restricted Foreign Subsidiary” means (a) ViewRay GmbH, (b) each other direct and indirect  Subsidiary of Viewray formed or acquired after the Closing Date and not organized under the laws of the  United States, Washington, D.C. or any state thereof and (c) each U.S. Holdco; provided that no foreign  Subsidiary or U.S. Holdco that becomes a Credit Party pursuant to Section 4.11(e) shall be a “Restricted  Foreign Subsidiary” for purposes of this Agreement or the other Financing Documents.   





 






34  MidCap / Viewray / Credit, Security and Guaranty Agreement               “Revolving Lender” means each Lender having a Revolving Loan Commitment Amount in excess  of Zero Dollars ($0) (or, in the event the Revolving Loan Commitment shall have been terminated at any  time, each Lender at such time having Revolving Loan Outstandings in excess of Zero Dollars ($0)).  “Revolving Loan Account” has the meaning set forth in Section 2.6(b).  “Revolving Loan Availability” means, at any time, the Revolving Loan Limit minus the  Revolving Loan Outstandings.  “Revolving Loan Commitment” means, as of any date of determination, the aggregate Revolving  Loan Commitment Amounts of all Lenders as of such date.  “Revolving Loan Commitment Amount” means, as to any Lender, the dollar amount set forth  opposite such Lender’s name on the Commitment Annex under the column “Revolving Loan Commitment  Amount” (if such Lender’s name is not so set forth thereon, then the dollar amount on the Commitment  Annex for the Revolving Loan Commitment Amount for such Lender shall be deemed to be Zero Dollars  ($0)), as such amount may be adjusted from time to time by (a) any amounts assigned (with respect to such  Lender’s portion of Revolving Loans outstanding and its commitment to make Revolving Loans) pursuant  to the terms of any and all effective assignment agreements to which such Lender is a party and (b) any  Additional Tranche(s) activated by Borrowers.  For the avoidance of doubt, the aggregate Revolving Loan  Commitment Amount of all Lenders on the Closing Date shall be $15,000,000 and if the Additional Tranche  is fully activated by Borrowers pursuant to the terms of the Agreement such amount shall increase to  $25,000,000.  “Revolving Loan Commitment Percentage” means, as to any Lender, (a) on the Closing Date,  the percentage set forth opposite such Lender’s name on the Commitment Annex under the column  “Revolving Loan Commitment Percentage” (if such Lender’s name is not so set forth thereon, then, on the  Closing Date, such percentage for such Lender shall be deemed to be zero), and (b) on any date following  the Closing Date, the percentage equal to the Revolving Loan Commitment Amount of such Lender on  such date divided by the Revolving Loan Commitment on such date.  “Revolving Loan Exposure” means, with respect to any Lender on any date of determination, the  percentage equal to the amount of such Lender’s Revolving Loan Outstandings on such date divided by the  aggregate Revolving Loan Outstandings of all Lenders on such date.  “Revolving Loan Limit” means, at any time, the lesser of (a) the Revolving Loan Commitment  and (b) the Borrowing Base.  “Revolving Loan Outstandings” means, at any time of calculation, without duplication (a)  the  then existing aggregate outstanding principal amount of Revolving Loans, and (b) when used with reference  to any single Lender, the then existing outstanding principal amount of Revolving Loans advanced by such  Lender.  “Revolving Loan Payment Account” means the account specified on the Agent’s signature page  hereto as the Revolving Loan Payment Account, into which all payments by or on behalf of each Borrower  to Agent (other than payments of principal, interest, fees, expenses, charges and all other amounts owing  solely in respect of the Term Loans) under the Financing Documents shall be made, or such other account  as Agent shall from time to time specify by notice to Borrower Representative.  “Revolving Loans” has the meaning set forth in Section 2.1(b).  





 






35  MidCap / Viewray / Credit, Security and Guaranty Agreement               “Sanctioned Country” means any country or territory that is itself subject to comprehensive  sanctions maintained by OFAC including at the time of this Agreement, Cuba, Iran, North Korea, Syria and  the Crimea, Donetsk People’s Republic and Luhansk People’s Republic regions.  “SEC” means the United States Securities and Exchange Commission.  “Securities Account” means a “securities account” (as defined in Article 9 of the UCC), an  investment account, or other account in which investment property or securities are held or invested for  credit to or for the benefit of any Credit Party.  “Securities Account Control Agreement” means an agreement, in form and substance  satisfactory to Agent, among Agent, any applicable Credit Party and each securities intermediary in which  such Credit Party maintains a Securities Account pursuant to which Agent shall obtain “control” (as defined  in Article 9 of the UCC) over such Securities Account.  “Security Document” means this Agreement, the Pledge Agreement, the Intellectual Property  Security Agreement (at all times after such agreement becomes effective in accordance with the terms of  this Agreement), and each other agreement, document or instrument executed concurrently herewith or at  any time hereafter pursuant to which one or more Credit Parties or any other Person either (a) Guarantees  payment or performance of all or any portion of the Obligations, and/or (b) provides, as security for all or  any portion of the Obligations, a Lien on any of its assets in favor of Agent for its own benefit and the  benefit of the Lenders, as any or all of the same may be amended, supplemented, restated or otherwise  modified from time to time.  “Springing IP Lien Event” means that, on any date, the Credit Parties have allowed, as of the  close of business on such date, the aggregate Credit Party Unrestricted Cash to be less than an amount equal  to the greater of (a) $50,000,000, and (b) an amount equal to 110% of the combined aggregate outstanding  principal balance of the Term Loans and the Revolving Loans  as of such date.   “Solvent” means, with respect to any Person, that such Person (a) owns and will own assets the  fair saleable value of which are (i) greater than the total amount of its debts and liabilities (including  subordinated and Contingent Obligations), and (ii) greater than the amount that will be required to pay the  probable liabilities of its then existing debts as they become absolute and matured considering all financing  alternatives and potential asset sales reasonably available to it; (b) has capital that is not unreasonably small  in relation to its business as presently conducted or after giving effect to any contemplated transaction; and  (c) does not intend to incur and does not believe that it will incur debts beyond its ability to pay such debts  as they become due.  “Stated Rate” has the meaning set forth in Section 2.7.  “Subordinated Debt” means any Debt of Borrowers incurred pursuant to the terms of the  Subordinated Debt Documents and with the prior written consent of Agent.  As of the Closing Date, there  is no Subordinated Debt.  “Subordinated Debt Documents” means any documents evidencing and/or securing Debt  governed by a Subordination Agreement, all of which documents must be in form and substance acceptable  to Agent in its sole discretion.  As of the Closing Date, there are no Subordinated Debt Documents.   “Subordination Agreement” means each agreement between Agent and another creditor of  Credit Parties, as the same may be amended, supplemented, restated or otherwise modified from time to  





 






36  MidCap / Viewray / Credit, Security and Guaranty Agreement               time in accordance with the terms thereof, pursuant to which the Debt owing from any Credit Party and/or  the Liens securing such Debt granted by any Credit Party to such creditor are subordinated in any way to  the Obligations and the Liens created under the Security Documents, the terms and provisions of such  Subordination Agreements to have been agreed to by and be acceptable to Agent in the exercise of its sole  discretion.  “Subsidiary” means, with respect to any Person, (a) any corporation (or any foreign equivalent  thereof) of which an aggregate of fifty percent (50%) or more of the outstanding Equity Interests having  ordinary voting power to elect a majority of the board of directors of such corporation (irrespective of  whether, at the time, Equity Interests of any other class or classes of such corporation shall have or might  have voting power by reason of the happening of any contingency) is at the time, directly or indirectly,  owned legally or beneficially by such Person or one or more Subsidiaries of such Person, or with respect  to which any such Person has the right to vote or designate the vote of more than fifty percent (50%) of  such Equity Interests whether by proxy, agreement, operation of law or otherwise, and (b) any partnership  or limited liability company (or any foreign equivalent thereof) in which such Person and/or one or more  Subsidiaries of such Person shall have an interest (whether in the form of voting or participation in profits  or capital contribution) of more than fifty percent (50%) or of which any such Person is a general partner  or may exercise the powers of a general partner.  Unless the context otherwise requires, each reference to a  Subsidiary shall be a reference to a Subsidiary of a Credit Party.  “SVB” means Silicon Valley Bank.  “Swap Contract” means any “swap agreement”, as defined in Section 101 of the Bankruptcy  Code, that is obtained by a Credit Party to provide protection against fluctuations in interest or currency  exchange rates, but only if Agent provides its prior written consent to the entry into such “swap agreement”.    “Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings  (including backup withholding), assessments, fees or other charges imposed by any Governmental  Authority, including any interest, additions to tax or penalties applicable thereto.  “Term Lender” means a Lender with a Term Loan Commitment or a portion of the outstanding  Term Loans.  “Term Loan” means, collectively, the Term Loan Tranche 1 and the Term Loan Tranche 2.  “Term Loan Account” has the meaning set forth in Section 2.6(c).  “Term Loan Commitment Amount” means, with respect to each Lender, the sum of such  Lender’s Term Loan Tranche 1 Commitment Amount and Term Loan Tranche 2 Commitment Amount.  “Term Loan Commitment Percentage” means, as to any Lender with respect to each of such  Lender’s Term Loan Commitments, (a) on the Closing Date, with respect to each tranche of the Term Loan,  the applicable percentage set forth opposite such Lender’s name on the Commitment Annex under the  column “Term Loan Tranche 1 Commitment Percentage”, and “Term Loan Tranche 2 Commitment  Percentage” (if such Lender’s name is not so set forth thereon, then, on the Closing Date, such percentage  for such Lender shall be deemed to be zero), and (b) on any date following the Closing Date, as applicable  to each tranche of Term Loan, the percentage equal to (i) the Term Loan Tranche 1 Commitment of such  Lender on such date divided by the aggregate Term Loan Tranche 1 Commitments on such date, or (ii) the  Term Loan Tranche 2 Commitment of such Lender on such date divided by the aggregate Term Loan  Tranche 2 Commitments on such date.  





 






37  MidCap / Viewray / Credit, Security and Guaranty Agreement               “Term Loan Commitments” means the Term Loan Tranche 1 Commitments, and the Term Loan  Tranche 2 Commitments. For the avoidance of doubt, the aggregate Term Loan Commitments of all  Lenders on the Closing Date shall be $100,000,000.  “Term Loan Payment Account” means the account specified on the Term Loan Servicer’s  signature page hereto as the Term Loan Payment Account, into which all payments by or on behalf of each  Borrower to Agent of principal, interest, fees, expenses, charges and all other amounts owing solely in  respect of the Term Loans under the Financing Documents shall be made, or such other account as Term  Loan Servicer shall from time to time specify by notice to Borrower Representative.  “Term Loan Servicer” MidCap Financial Trust, in its capacity as Term Loan Servicer for itself  and for Lenders hereunder, as such capacity is established in, and subject to the provisions of, Article 11,  and the successors and assigns of MidCap Financial Trust in such capacity.  “Term Loan Tranche 1” has the meaning set forth in Section 2.1(a)(i)(A).  “Term Loan Tranche 1 Commitment Amount” means, with respect to each Lender, the amount  set forth opposite such Lender’s name on Annex A hereto under the caption “Term Loan Tranche 1  Commitment Amount”, as amended from time to time to reflect any permitted and effective assignments  and as such amount may be reduced or terminated pursuant to this Agreement.    “Term Loan Tranche 1 Commitments” means the sum of each Lender’s Term Loan Tranche 1  Commitment Amount.  “Term Loan Tranche 2” has the meaning set forth in Section 2.1(a)(i)(B).  "Term Loan Tranche 2 Activation Date” means the later of (a) the date on which Viewray files  its Form 10-K for the fiscal year ending December 31, 2023 with the SEC and (b) February 29, 2024.   “Term Loan Tranche 2 Commitment Amount” means, with respect to each Lender, the amount  set forth opposite such Lender’s name on Annex A hereto under the caption “Term Loan Tranche 2  Commitment Amount”, as amended from time to time to reflect any permitted and effective assignments  and as such amount may be reduced or terminated pursuant to this Agreement.    “Term Loan Tranche 2 Commitment Termination Date” means the earlier of (a) June 30, 2024  and (b) the date on which Agent (at the direction of the Required Lenders) provides notice to the Credit  Parties, following the occurrence of an Event of Default (which has not been waived or cured as of the date  such notice is given), that the Term Loan Tranche 2 Commitments have been terminated.  “Term Loan Tranche 2 Commitments” means the sum of each Lender’s Term Loan Tranche 2  Commitment Amount.   “Termination Date” means the earliest to occur of (a) the Maturity Date, (b) any date on which  the maturity of the Loans is accelerated pursuant to Section 10.2, or (c) the termination date stated in any  notice of termination of this Agreement provided by Borrowers in accordance with Section 2.12.  “U.S. Holdco” means any domestic Subsidiary of a Borrower, the sole assets (other than immaterial  assets) of which consist of Equity Interests of CFCs.   “U.S. Tax Compliance Certificate” has the meaning set forth in Section 2.8(c)(i).  





 






38  MidCap / Viewray / Credit, Security and Guaranty Agreement               “UCC” means the Uniform Commercial Code of the State of New York or of any other state the  laws of which are required to be applied in connection with the perfection of security interests in any  Collateral.  “UK Financial Institution” means any BRRD Undertaking (as such term is defined under the  PRA Rulebook (as amended from time to time) promulgated by the United Kingdom Prudential Regulation  Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time)  promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions  and investment firms, and certain affiliates of such credit institutions or investment firms.  “UK Resolution Authority” means the Bank of England or any other public administrative  authority having responsibility for the resolution of any UK Financial Institution.  “United States” means the United States of America.  “U.S. Tax Compliance Certificate” has the meaning set forth in Section 2.8(c)(i).  “Withholding Agent” means any Borrower, Agent or Term Loan Servicer, as applicable.  “Work-In-Process” means Inventory that is not a product that is finished and approved by a  Borrower in accordance with applicable Laws and such Borrower’s normal business practices for release  and delivery to customers.  “Write-Down and Conversion Powers” means, (a) with respect to any EEA Resolution Authority,  the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail- In Legislation for the applicable EEA Member Country, which write-down and conversion powers are  described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom,  any powers  of the applicable Resolution Authority  under the Bail-In Legislation to cancel, reduce, modify or change  the form of a liability of any UK Financial Institution  or any contract or instrument under which that  liability arises, to convert all or part of that liability into shares, securities or obligations of that person or  any other person, to provide that any such contract or instrument is to have effect as if a right had been  exercised under it or to suspend any obligation in respect of that liability or any of the powers under that  Bail-In Legislation that are related to or ancillary to any of those powers.  Section 1.2 Accounting Terms and Determinations.  Unless otherwise specified herein, all  accounting terms used herein shall be interpreted, all accounting determinations hereunder (including,  without limitation, determinations made pursuant to the exhibits hereto) shall be made, and all financial  statements required to be delivered hereunder shall be prepared on a consolidated basis in accordance with  GAAP applied on a basis consistent with the most recent audited consolidated financial statements of each  Credit Party and its Consolidated Subsidiaries delivered to Agent and each of the Lenders on or prior to the  Closing Date.  If at any time any change in GAAP would affect the computation of any financial ratio or  financial requirement set forth in any Financing Document, and either Borrowers or the Required Lenders  shall so request, Agent, the Lenders and Borrowers shall negotiate in good faith to amend such ratio or  requirement to preserve the original intent thereof in light of such change in GAAP (subject to the approval  of the Required Lenders); provided, however, that until so amended, (a) such ratio or requirement shall  continue to be computed in accordance with GAAP prior to such change therein and (b) Borrowers shall  provide to Agent and the Lenders financial statements and other documents required under this Agreement  which include a reconciliation between calculations of such ratio or requirement made before and after  giving effect to such change in GAAP. Any obligations of a Person under a lease (whether existing now or  entered into in the future) that is not (or would not be) a capital lease obligation under GAAP as in effect  





 






39  MidCap / Viewray / Credit, Security and Guaranty Agreement               prior to giving effect to FASB Accounting Standards Update No. 2016-02, Leases, shall not be treated as a  capital lease obligation solely as a result of the adoption of changes in GAAP, unless the parties hereto shall  enter into a mutually acceptable amendment addressing such changes, as provided for above.  Section 1.3 Other Definitional and Interpretive Provisions.  References in this Agreement to  “Articles”, “Sections”, “Annexes”, “Exhibits”, or “Schedules” shall be to Articles, Sections, Annexes,  Exhibits or Schedules of or to this Agreement unless otherwise specifically provided.  Any term defined  herein may be used in the singular or plural.  “Include”, “includes” and “including” shall be deemed to be  followed by “without limitation”.  Except as otherwise specified or limited herein, references to any Person  include the successors and assigns of such Person.  References “from” or “through” any date mean, unless  otherwise specified, “from and including” or “through and including”, respectively.  References to any  statute or act shall include all related current regulations and all amendments and any successor statutes,  acts and regulations.  All amounts used for purposes of financial calculations required to be made herein  shall be without duplication.  References to any statute or act, without additional reference, shall be deemed  to refer to federal statutes and acts of the United States.  References to any agreement, instrument or  document shall include all schedules, exhibits, annexes and other attachments thereto.  References to  capitalized terms that are not defined herein, but are defined in the UCC, shall have the meanings given  them in the UCC.  All references herein to times of day shall be references to daylight or standard time, as  applicable.  All references herein to a merger, transfer, consolidation, amalgamation, assignment, sale or  transfer, or analogous term, will be construed to mean also a division of or by a limited liability company,  as if it were a merger, transfer, consolidation, amalgamation, assignment, sale or transfer, or similar term,  as applicable.  Any series of limited liability company shall be considered a separate Person.   Section 1.4 Settlement and Funding Mechanics.  Unless otherwise specified herein, the  settlement of all payments and fundings hereunder between or among the parties hereto shall be made in  lawful money of the United States and in immediately available funds.   Section 1.5 Time is of the Essence.  Time is of the essence in Borrower’s and each other Credit  Party’s performance under this Agreement and all other Financing Documents.   Section 1.6 Time of Day. Unless otherwise specified, all references herein to times of day shall  be references to Eastern time (daylight savings or standard, as applicable).  ARTICLE 2 - LOANS   Section 2.1 Loans.  (a) Term Loans.    (i) Term Loan Amounts.  (A) On the terms and subject to the conditions set forth herein and in  the other Financing Documents, each Lender with a Term Loan Tranche 1 Commitment  Amount severally hereby agrees to make to Borrowers a Term Loan on the Closing Date  in an original aggregate principal amount equal to the Term Loan Tranche 1 Commitments  (the “Term Loan Tranche 1”).  Each such Lender’s obligation to fund the Term Loan  Tranche 1 shall be limited to such Lender’s Term Loan Tranche 1 Commitment Percentage,  and no Lender shall have any obligation to fund any portion of any Term Loan required to  be funded by any other Lender, but not so funded.       





 






40  MidCap / Viewray / Credit, Security and Guaranty Agreement               (B) On the terms and subject to the conditions set forth herein and in  the other Financing Documents, each Lender with a Term Loan Tranche 2 Commitment  Amount severally hereby agrees to make to Borrowers a Term Loan on a Business Day  occurring on or after the Term Loan Tranche 2 Activation Date and on or prior to the Term  Loan Tranche 2 Commitment Termination Date in an original aggregate principal amount  equal to the Term Loan Tranche 2 Commitment (the “Term Loan Tranche 2”).  Each  such Lender’s obligation to fund the Term Loan Tranche 2 shall be limited to such Lender’s  Term Loan Tranche 2 Commitment Amount, and no Lender shall have any obligation to  fund any portion of any Term Loan required to be funded by any other Lender, but not so  funded.  Unless previously terminated, upon the Term Loan Tranche 2 Commitment  Termination Date, the Term Loan Tranche 2 Commitment shall thereupon automatically  be terminated and the Term Loan Tranche 2 Commitment Amount of each Lender as of  such date shall be reduced by such Lender’s Pro Rata Share of such total reduction in the  Term Loan Commitments.    (C) No Borrower shall have any right to reborrow any portion of the  Term Loan that is repaid or prepaid from time to time.  Borrowers shall deliver to Agent  and Term Loan Servicer a Notice of Borrowing with respect to each proposed Term Loan  advance, such Notice of Borrowing to be delivered, (i) in the case of a Term Loan Tranche  1 borrowing, no later than 12:00 P.M. (Eastern time) on the Closing Date and (ii) in the  case of a Term Loan Tranche 2 borrowing, no later than 12:00 P.M. (Eastern time) fifteen  (15) Business Days (or such shorter period as may be agreed by Agent, Term Loan Servicer  and the Lenders) prior to such proposed borrowing.   (ii) Scheduled Repayments; Mandatory Prepayments; Optional Prepayments.    (A) There shall become due and payable, and the Borrowers shall  repay each Term Loan through, scheduled principal payments as set forth on Schedule 2.1  attached hereto.  Notwithstanding the payment schedule set forth above, the outstanding  principal amount of each Term Loan shall become immediately due and payable in full on  the Termination Date.    (B) There shall become due and payable and Borrowers shall prepay  each Term Loan in the following amounts and at the following times:    (i) Subject to Borrower’s option to apply casualty proceeds  in accordance with this Section 2.1(a)(ii)(B)(i), within five (5) Business Days of  the date on which any Credit Party (or Agent as loss payee or assignee) receives  any casualty proceeds in excess of $500,000 with respect to any Collateral, an  amount equal to one hundred percent (100%) of such proceeds (net of out-of- pocket expenses and repayment of secured debt permitted under clause (c) of the  definition of Permitted Debt and encumbering the property that suffered such  casualty), or such lesser portion of such proceeds as Agent shall elect to apply to  the Term Loans and related Obligations; provided that, so long as no Event of  Default then exists, any such casualty proceeds in excess of $500,000 may instead  be used by Borrowers within three hundred and sixty (360) days from the receipt  of such proceeds to replace, repair, purchase or otherwise reinvest such proceeds  in assets used or useful in the business of the Credit Parties;   





 






41  MidCap / Viewray / Credit, Security and Guaranty Agreement               (ii) an amount equal to any interest that is deemed to be in  excess of the Maximum Lawful Rate (as defined below) and is required to be  applied to the reduction of the principal balance of the Loans by any Lender as  provided for in Section 2.7; and  (iii) upon the termination of all Revolving Loan Commitments  and the payment of the then existing aggregate outstanding principal amount of the  Revolving Loans, the aggregate outstanding Obligations in full;  (C) Borrowers may from time to time, with at least ten (10) Business  Days prior irrevocable written notice (which notice may be conditioned on the closing of  a refinancing or other applicable transaction) to Agent and Term Loan Servicer, prepay the  Term Loans in whole or in part; provided, however, that (x) each such prepayment (other  than mandatory partial prepayments required under this Agreement) shall be in an amount  equal to $5,000,000 (or a higher integral multiple of $1,000,000) (or, if less, the outstanding  principal balance of the Term Loans) and (y) each such prepayment shall be made in  accordance with Section 2.12, as applicable, and shall be accompanied by all prepayment  fees or other fees required hereunder and any fees required under the Fee Letter or any  Financing Document in connection with such prepayments.   (iii) All Prepayments.  Except as this Agreement may specifically provide  otherwise, all prepayments of the Term Loan shall be applied by Term Loan Servicer to the Term  Loans and related Obligations in inverse order of maturity.  The monthly payments required under  Schedule 2.1 shall continue in the same amount (for so long as the Term Loan and/or (if applicable)  any advance thereunder shall remain outstanding) notwithstanding any partial prepayment, whether  mandatory or optional, of the Term Loan. Notwithstanding anything to the contrary contained in  the foregoing, in the event that there have been multiple advances under the Term Loan each of  which such advances has a separate amortization schedule of principal payments under  Schedule 2.1 attached hereto, each prepayment of the Term Loan shall be applied by Term Loan  Servicer to reduce and prepay the principal balance of the earliest-made advance then outstanding  in the inverse order of maturity of the scheduled payments with respect to such advance until such  earliest-made advance is paid in full (and to the extent the total amount of any such partial  prepayment shall exceed the outstanding principal balance of such earliest-made advance, the  remainder of such prepayment shall be applied successively to the remaining advances under the  Term Loan in the direct order of the respective advance dates in the manner provided for in this  sentence).  (iv) Payments Generally.  All payments by or on behalf of each Borrower to  Term Loan Servicer of principal, interest, fees, expenses, charges and all other amounts owing  solely in respect of the Term Loans under the Financing Documents shall be made to the Term  Loan Payment Account.  (b) Revolving Loans.  (i) Revolving Loans and Borrowings.  On the terms and subject to the  conditions set forth herein, each Lender severally agrees to make loans to Borrowers from time to  time as set forth herein (each a “Revolving Loan”, and collectively, “Revolving Loans”) equal to  such Lender’s Revolving Loan Commitment Percentage of Revolving Loans requested by  Borrowers hereunder, provided, however, that after giving effect thereto, the Revolving Loan  Outstandings shall not exceed the Revolving Loan Limit.  Borrowers shall deliver to Agent a Notice  





 






42  MidCap / Viewray / Credit, Security and Guaranty Agreement               of Borrowing with respect to each proposed borrowing of a Revolving Loan, such Notice of  Borrowing to be delivered before 1:00 p.m. (Eastern time) two (2) Business Days prior to the date  of such proposed borrowing.  Each Borrower and each Revolving Lender hereby authorizes Agent  to make Revolving Loans on behalf of Revolving Lenders, at any time in its sole discretion, to pay  principal owing in respect of the Revolving Loans and interest, fees, expenses and other charges  payable by any Credit Party in respect of the Revolving Loans from time to time arising under this  Agreement or any other Financing Document (it being understood that Agent shall not be entitled  to make discretionary Revolving Loans to pay any amounts due and owing under or in respect of  the Term Loans).  The Borrowing Base shall be determined by Agent based on the most recent  Borrowing Base Certificate delivered to Agent in accordance with this Agreement and such other  information as may be available to Agent.  Without limiting any other rights and remedies of Agent  hereunder or under the other Financing Documents, the Revolving Loans shall be subject to Agent’s  continuing right to withhold from the Borrowing Base reserves, and to increase and decrease such  reserves from time to time, if and to the extent that in Agent’s Permitted Discretion, such reserves  are necessary. Agent shall provide at least three (3) Business Days’ prior notice to Borrower  Representative of the implementation of a new reserve or the increase of a reserve if such  implementation or increase of such reserve would result in the Revolving Loan Outstandings  exceeding the Revolving Loan Limit; provided, however, that no such prior notice shall be required  for the implementation of a reserve or increase of a reserve during the continuance of an Event of  Default not caused by such reserve.    (ii) Mandatory Revolving Loan Repayments and Prepayments.  (A) The Revolving Loan Commitment shall terminate on the  Termination Date.  On such Termination Date, there shall become due, and Borrowers shall  pay, the entire outstanding principal amount of each Revolving Loan, together with accrued  and unpaid Obligations pertaining thereto incurred to, but excluding the Termination Date;  provided, however, that such payment is made not later than 12:00 Noon (Eastern time) on  the Termination Date.  (B) If at any time the Revolving Loan Outstandings exceed the  Revolving Loan Limit, then, on the next succeeding Business Day, Borrowers shall repay  the Revolving Loans, in an aggregate amount equal to such excess.  (C) Principal payable on account of Revolving Loans shall be payable  by Borrowers to Agent (I) immediately upon the receipt by any Borrower or Agent of any  payments on or proceeds from any of the Accounts, to the extent of such payments or  proceeds, as further described in Section 2.11 below, and (II) in full on the Termination  Date.  (iii) Optional Prepayments.  Borrowers may from time to time prepay the  Revolving Loans in whole or in part; provided, however, that any such partial prepayment shall be  in an amount equal to $100,000 or a higher integral multiple of $25,000 (or, if less, the principal  amount of Revolving Loans outstanding).  For the avoidance of doubt, nothing in this clause shall  permit termination of the Revolving Loan Commitment by Borrower other than in accordance with  Section 2.12(b).  (iv) Payments Generally.  All payments by or on behalf of each Borrower to  Agent under the Financing Documents (other than those described in Section 2.1(a)(iv) above) shall  be made to the Revolving Loan Payment Account.  





 






43  MidCap / Viewray / Credit, Security and Guaranty Agreement               (c) Additional Tranches.  After the Closing Date, so long as no Default or Event of  Default exists and subject to the terms of this Agreement, with the prior written consent of Agent and all  Revolving Lenders in their sole discretion, the Revolving Loan Commitment may be increased upon the  written request of Borrower Representative (which such request shall state the aggregate amount of the  Additional Tranche requested and shall be made at least thirty (30) days prior to the proposed effective  date of such Additional Tranche) to Agent to activate an Additional Tranche; provided, however, that  Agent and Revolving Lenders shall have no obligation to consent to any requested activation of an  Additional Tranche and the written consent of Agent and all Revolving Lenders shall be required in order  to activate an Additional Tranche.  Upon activating an Additional Tranche, each Lender’s Revolving  Loan Commitment shall increase by a proportionate amount so as to maintain the same Pro Rata Share  of the Revolving Loan Commitment as such Lender held immediately prior to such activation.  In the  event Agent and all Revolving Lenders do not consent to the activation of a requested Additional Tranche  within thirty (30) days after receiving a written request from Borrower Representative, then the Revolving  Loan Commitment shall not be increased.   Section 2.2 Interest, Interest Calculations and Certain Fees.    (a) Interest.    (i) From and following the Closing Date, except as expressly set forth in this  Agreement, Loans and the other Obligations shall bear interest at the Applicable Interest Rate.   Interest on the Loans shall be paid monthly in arrears on the first (1st) day of each month and on  the maturity of such Loans, whether by acceleration or otherwise.    (ii) Changes to the interest rate of any Loan based on changes to the Prime  Rate shall be effective on the effective date of any change to the Prime Rate and to the extent of  any such change.   (iii) Interest on all other Obligations shall be payable upon demand.  For  purposes of calculating interest, all funds transferred to the Revolving Loan Payment Account for  application to any Revolving Loans shall be subject to a two (2) Business Day clearance period and  all interest accruing on such funds during such clearance period shall accrue for the benefit of  Agent, and not for the benefit of the Lenders.    (b) Unused Line Fee. From and following the Closing Date, Borrowers shall pay  Agent, for the benefit of all Lenders committed to make Revolving Loans, in accordance with their  respective Pro Rata Shares, a fee in an amount equal to (1) if the average daily balance of the sum of the  Revolving Loan Outstandings during the preceding month is greater than or equal to the Minimum  Balance: (i) (A) Revolving Loan Commitment Amount minus (B) the average daily balance of the sum  of the Revolving Loan Outstandings during the preceding month, multiplied by (ii) one half of one percent  (0.50%) per annum or (2) if the Minimum Balance is greater than the average daily balance of the sum  of the Revolving Loan Outstandings during the preceding month: (i) (A) the Revolving Loan  Commitment Amount minus (B) the Minimum Balance, multiplied by (ii) one half of one percent (0.50%)  per annum.  The unused line fee shall be paid monthly in arrears on the first day of each month and shall  be deemed fully earned when due and payable and, once paid, shall be non-refundable.   (c) Fee Letter.  In addition to the other fees set forth herein, the Borrowers agree to  pay Agent or Term Loan Servicer, as applicable, the fees set forth in the Fee Letter.   





 






44  MidCap / Viewray / Credit, Security and Guaranty Agreement               (d) Minimum Balance Fee. On the first day of each month, the Borrowers agree to  pay to Agent, for the ratable benefit of all Revolving Lenders, the sum of the Minimum Balance Fee due  for the prior month.  The Minimum Balance Fee shall be deemed fully earned when due and payable and,  once paid, shall be non-refundable.     (e) [Reserved].   (f) [Reserved].   (g) [Reserved].    (h) Deferred Revolving Loan Origination Fee. If Lenders’ funding obligations in  respect of the Revolving Loan Commitment under this Agreement terminate or are permanently reduced  for any reason (whether by voluntary termination by Borrowers, by reason of the occurrence of an Event  of Default or the automatic termination of the Revolving Loan Commitments (including any automatic  termination due to the occurrence of an Event of Default described in Section 10.1(f)) or otherwise) prior  to the Maturity Date, Borrowers shall pay to Agent on the date of such reduction, for the benefit of all  Lenders committed to make Revolving Loans on the Closing Date, a fee as compensation for the costs of  such Lenders being prepared to make funds available to Borrowers under this Agreement, equal to an  amount determined by multiplying the amount of the Revolving Loan Commitment so terminated or  permanently reduced by the following applicable percentage amount:  (w) three percent (3.00%) for the  first year following the Closing Date, (x) two percent (2.00%) for the second year following the Closing  Date, (y) one percent (1.00%) for the third year following the Closing Date, and (z) zero percent (0.00%)  thereafter. All fees payable pursuant to this paragraph shall be deemed fully-earned on of the Closing  Date and non-refundable once paid.    (i) Prepayment Fee. If any advance under the Term Loan is prepaid at any time, in  whole or in part, for any reason (whether by voluntary prepayment by Borrower, by mandatory  prepayment by Borrower, by reason of the occurrence of an Event of Default or otherwise, or if the Term  Loan shall become accelerated (including any automatic acceleration due to the occurrence of an Event  of Default described in Section 10.1(f)) or otherwise) and due and payable in full, Borrowers shall pay to  Term Loan Servicer, for the benefit of all Term Lenders in accordance with their Pro Rata Shares, as  compensation for the costs of such Lenders making funds available to Borrowers under this Agreement,  a prepayment fee (the “Prepayment Fee”) calculated in accordance with this subsection.  The  Prepayment Fee in respect of the Term Loans shall be equal to an amount determined by multiplying the  amount being prepaid (or required to be prepaid, if such amount is greater) by the following applicable  percentage amount (x) four percent (4.00%) for the first two years following the Closing Date, (y) three  percent (3.00%) for the third year following the Closing Date, and (z) two percent (2.00%) thereafter.   The Prepayment Fee shall not apply to or be assessed upon any prepayment made by Borrowers if such  payments were required by Agent to be made pursuant to Section 2.1(a)(ii)(B) subpart (i) (relating to  casualty proceeds), or subpart (ii) (relating to payments exceeding the Maximum Lawful Rate). All fees  payable pursuant to this paragraph shall be deemed fully earned as of the Closing Date and non-refundable  once paid.   (j) Audit Fees.  Borrowers shall pay to Agent, for its own account and not for the  benefit of any other Lenders, all reasonable and documented, out-of-pocket fees and expenses in  connection with audits and inspections of Borrowers’ books and records, audits, valuations or appraisals  of the Collateral, audits of Borrowers’ compliance with applicable Laws and such other matters as Agent  shall deem appropriate, which shall be due and payable on the first Business Day of the month following  the date of issuance by Agent of a written request for payment thereof to Borrowers, subject to the  





 






45  MidCap / Viewray / Credit, Security and Guaranty Agreement               limitations set forth in Section 4.6 (in the case of audits and field examinations) and Section 4.14(c) (in  the case of valuations or appraisals of the Collateral).  (k) Wire Fees.   Borrowers shall pay to Agent or Term Loan Servicer, for its own  account and not for the account of any other Lenders, on written demand, fees for incoming and outgoing  wires made for the account of Borrowers, such fees to be based on Agent’s or Term Loan Servicer’s, as  applicable, then current wire fee schedule (available upon written request of the Borrowers).  (l) Late Charges.  If payments of principal (other than a final installment of principal  upon the Termination Date), interest due on the Obligations, or any other amounts due hereunder or under  the other Financing Documents are not timely made and remain overdue for a period of five (5) days,  Borrowers, without notice or demand by Agent, promptly shall pay to Agent, for its own account and not  for the benefit of any other Lenders, as additional compensation to Agent in administering the  Obligations, an amount equal to two percent (2.0%) of each delinquent payment.    (m) Computation of Interest and Related Fees.  All interest and fees under each  Financing Document shall be calculated on the basis of a 360-day year for the actual number of days  elapsed.  The date of funding of a Loan shall be included in the calculation of interest.  The date of  payment of a Loan shall be excluded from the calculation of interest.  If a Loan is repaid on the same day  that it is made, one (1) day’s interest shall be charged.    (n) Automated Clearing House Payments.  If Agent or Term Loan Servicer (or their  respective designated servicers or trustees on behalf of a securitization vehicle) so elects, monthly  payments of principal, interest, fees, expenses or any other amounts due and owing from Borrower to  Agent or Term Loan Servicer hereunder shall be paid to Agent or Term Loan Servicer, as applicable, by  Automated Clearing House debit of immediately available funds from the financial institution account  designated by Borrower Representative in the Automated Clearing House debit authorization executed  by Borrowers or Borrower Representative in connection with this Agreement, and shall be effective upon  receipt.  Borrowers shall execute any and all forms and documentation necessary from time to time to  effectuate such automatic debiting.  In no event shall any such payments be refunded to Borrowers.  Section 2.3 Notes.  The portion of the Loans made by each Lender shall be evidenced, if so  requested by such Lender, by one or more promissory notes executed by Borrowers on a joint and several  basis (each, a “Note”) in an original principal amount equal to such Lender’s Revolving Loan Commitment  Amount or Term Loan Commitments.    Section 2.4 Reserved.  Section 2.5 Reserved.  Section 2.6 General Provisions Regarding Payment; Loan Accounts.  (a) All payments to be made by each Credit Party under any Financing Document,  including payments of principal and interest made hereunder and pursuant to any other Financing  Document, and all fees, expenses, indemnities and reimbursements, shall be made without set-off,  recoupment or counterclaim.  If any payment hereunder becomes due and payable on a day other than a  Business Day, such payment shall be extended to the next succeeding Business Day and, with respect to  payments of principal, interest thereon shall be payable at the then applicable rate during such extension  (it being understood and agreed that, solely for purposes of calculating financial covenants and  computations contained herein and determining compliance therewith, if payment is made, in full, on any  





 






46  MidCap / Viewray / Credit, Security and Guaranty Agreement               such extended due date, such payment shall be deemed to have been paid on the original due date without  giving effect to any extension thereto).  Any payments received in a Payment Account before 12:00 Noon  (Eastern time) on any date shall be deemed received by Agent or Term Loan Servicer, as applicable, on  such date, and any payments received in the applicable Payment Account at or after 12:00 Noon (Eastern  time) on any date shall be deemed received by Agent or Term Loan Servicer, as applicable, on the next  succeeding Business Day.    (b) Agent shall maintain a revolving loan account (the “Revolving Loan Account”)  on its books to record Revolving Loans and other extensions of credit made by the Revolving Lenders  hereunder or under any other Financing Document, and all payments thereon made by each Borrower.   All entries in the Revolving Loan Account shall be made in accordance with Agent’s customary  accounting practices as in effect from time to time.  The balance in the Revolving Loan Account, as  recorded in Agent’s books and records at any time shall be conclusive and binding evidence of the  amounts due and owing to Agent by each Borrower absent manifest error; provided, however, that any  failure to so record or any error in so recording shall not limit or otherwise affect any Borrower’s duty to  pay all amounts owing hereunder or under any other Financing Document.  Agent shall endeavor to  provide Borrowers with a monthly statement regarding the Revolving Loan Account (but none of Agent  or any Lender shall have any liability if Agent shall fail to provide any such statement).  Unless any  Borrower notifies Agent of any objection to any such statement (specifically describing the basis for such  objection) within ninety (90) days after the date of receipt thereof, it shall be deemed final, binding and  conclusive upon Borrowers in all respects as to all matters reflected therein.  (c) Term Loan Servicer shall maintain a term loan account (the “Term Loan  Account”) on its books to record Term Loans and other extensions of credit made by the Term Lenders  hereunder or under any other Financing Document, and all payments thereon made by each Borrower.   All entries in the Term Loan Account shall be made in accordance with Term Loan Servicer’s customary  accounting practices as in effect from time to time.  The balance in the Term Loan Account, as recorded  in Term Loan Servicer’s books and records at any time shall be conclusive and binding evidence of the  amounts due and owing to Term Loan Servicer by each Borrower absent manifest error; provided,  however, that any failure to so record or any error in so recording shall not limit or otherwise affect any  Borrower’s duty to pay all amounts owing hereunder or under any other Financing Document.  Term  Loan Servicer shall endeavor to provide Borrowers with a monthly statement regarding the Term Loan  Account (but none of Term Loan Servicer or any Lender shall have any liability if Term Loan Servicer  shall fail to provide any such statement).  Unless any Borrower notifies Term Loan Servicer of any  objection to any such statement (specifically describing the basis for such objection) within ninety (90)  days after the date of receipt thereof, it shall be deemed final, binding and conclusive upon Borrowers in  all respects as to all matters reflected therein.  Section 2.7 Maximum Interest.  In no event shall the interest charged with respect to the Loans  or any other Obligations of any Borrower under any Financing Document exceed the maximum amount  permitted under the laws of the State of New York or of any other applicable jurisdiction.  Notwithstanding  anything to the contrary herein or elsewhere, if at any time the rate of interest payable hereunder or under  any Note or other Financing Document (the “Stated Rate”) would exceed the highest rate of interest  permitted under any applicable law to be charged (the “Maximum Lawful Rate”), then for so long as the  Maximum Lawful Rate would be so exceeded, the rate of interest payable shall be equal to the Maximum  Lawful Rate; provided, however, that if at any time thereafter the Stated Rate is less than the Maximum  Lawful Rate, each Borrower shall, to the extent permitted by law, continue to pay interest at the Maximum  Lawful Rate until such time as the total interest received is equal to the total interest which would have  been received had the Stated Rate been (but for the operation of this provision) the interest rate payable.   Thereafter, the interest rate payable shall be the Stated Rate unless and until the Stated Rate again would  





 






47  MidCap / Viewray / Credit, Security and Guaranty Agreement               exceed the Maximum Lawful Rate, in which event this provision shall again apply.  In no event shall the  total interest received by any Lender exceed the amount which it could lawfully have received had the  interest been calculated for the full term hereof at the Maximum Lawful Rate. If, notwithstanding the prior  sentence, any Lender has received interest hereunder in excess of the Maximum Lawful Rate, such excess  amount shall be applied to the reduction of the principal balance of the Loans or to other amounts (other  than interest) payable hereunder, and if no such principal or other amounts are then outstanding, such excess  or part thereof remaining shall be paid to Borrowers.  In computing interest payable with reference to the  Maximum Lawful Rate applicable to any Lender, such interest shall be calculated at a daily rate equal to  the Maximum Lawful Rate divided by the number of days in the year in which such calculation is made.  Section 2.8 Taxes; Capital Adequacy.    (a) All payments of principal and interest on the Loans and all other amounts  payable hereunder shall be made free and clear of and without deduction for any present or future Taxes,  except as required by applicable Law. If any applicable Law (as determined in the good faith discretion  of an applicable Withholding Agent) requires the deduction or withholding of any Tax from any such  payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such  deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant  Governmental Authority in accordance with applicable Law and if any such withholding or deduction is  in respect of an Indemnified Tax, then the Credit Parties shall pay such additional amount or amounts as  is necessary to ensure that the net amount actually received by Agent, Term Loan Servicer and each  Lender will equal the full amount such recipient would have received had no such withholding or  deduction been required (including, without limitation, such withholdings and deductions applicable to  additional sums payable under this Section 2.8).  After payment of any Tax by a Credit Party to a  Governmental Authority pursuant to this Section 2.8, such Credit Party shall promptly forward to Agent  and Term Loan Servicer the original or a certified copy of an official receipt, a copy of the return reporting  such payment, or other documentation satisfactory to Agent and Term Loan Servicer evidencing such  payment to such authority. Credit Parties shall timely pay to the relevant Governmental Authority in  accordance with applicable Law, or at the option of Agent or Term Loan Servicer, as applicable, timely  reimburse Agent or Term Loan Servicer, as applicable for the payment of, any Other Taxes.  (b) The Credit Parties shall indemnify Agent, Term Loan Servicer and Lenders,  within ten (10) days after demand thereof, for the full amount of any Indemnified Taxes (including  Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section 2.8)  payable or paid by Agent, Term Loan Servicer or any Lender or required to be withheld or deducted from  a payment to Agent, Term Loan Servicer or any Lender and any expenses arising therefrom or with  respect thereto, whether or not such Indemnified Taxes and Other Taxes were correctly or legally imposed  or asserted by the relevant Governmental Authority.  A certificate in reasonable detail as to the amount  of such payment or liability delivered to Borrowers by a Lender (with a copy to Agent and Term Loan  Servicer), or by Agent or Term Loan Servicer, as applicable, on its own behalf or on behalf of a Lender,  shall be conclusive absent manifest error.  (c) Any Lender that is entitled to an exemption from or reduction of withholding  Tax with respect to payments made under any Financing Document shall deliver to Borrower  Representative, Agent and Term Loan Servicer, at the time or times prescribed by applicable Law or  reasonably requested by Borrower Representative, Agent or Term Loan Servicer, such properly  completed and executed documentation reasonably requested by Borrower Representative, Agent or  Term Loan Servicer as will permit such payments to be made without withholding or at a reduced rate of  withholding.  In addition, any Lender, if reasonably requested by Borrower Representative, Agent or  Term Loan Servicer, shall deliver such other documentation prescribed by applicable Law or reasonably  





 






48  MidCap / Viewray / Credit, Security and Guaranty Agreement               requested by Borrowers, Agent or Term Loan Servicer as will enable Borrowers, Agent or Term Loan  Servicer, as applicable, to determine whether or not such Lender is subject to backup withholding or  information reporting requirements.  Notwithstanding anything to the contrary in the preceding two  sentences, the completion, execution and submission of such documentation (other than such  documentation set forth in Sections 2.8(c)(i), 2.8(c)(ii) and 2.8(e) below) shall not be required if in such  Lender’s reasonable judgment such completion, execution or submission would subject such Lender to  any material unreimbursed cost or expense or would materially prejudice the legal or commercial position  of such Lender.     (i) Each Lender that is not a “United States person” (as such term is defined  in Section 7701(a)(30) of the Code) for U.S. federal income tax purposes and is a party hereto on  the Closing Date or purports to become an assignee of an interest pursuant to Section 11.17(a) after  the Closing Date (unless such Lender was already a Lender hereunder immediately prior to such  assignment) (each such Lender a “Foreign Lender”) shall, to the extent permitted by Law, execute  and deliver to Borrower Representative, Agent and Term Loan Servicer (in such number of copies  as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes  a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the  Borrower Representative, Agent or Term Loan Servicer) whichever of the following is applicable:   (A) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the  United States is a party, (x) with respect to payments of interest under any Financing Document,  two (2) properly completed and executed originals of United States Internal Revenue Service  (“IRS”) Forms W-8BEN or W-8BEN-E (or successor form) establishing an exemption from, or  reduction of, U.S. federal withholding tax pursuant to the “interest” article of such tax treaty and  (y) with respect to any other applicable payments under any Financing Documents, two  (2) properly completed and executed originals of IRS Forms W-8BEN or W-8BEN-E (or successor  form) establishing an exemption from, or reduction of, U.S. federal withholding tax pursuant to the  “business profits” or “other income” article of such tax treaty; (B) two (2) executed originals of  IRS Form W-8ECI (or successor form); (C) in the case of a Foreign Lender claiming the benefits  of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate  substantially in the form of Exhibit E-1 to the effect that such Foreign Lender is not a “bank” within  the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of any Borrower  within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation”  described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and (y) two  (2) executed originals of IRS Forms W-8BEN or W-8BEN-E (or successor form); (D) to the extent  a Foreign Lender is not the beneficial owner, two (2) executed originals of IRS Form W-8IMY,  accompanied by IRS Form W-8ECI, IRS Form W-8BEN or W-8BEN-E (or successor form), a U.S.  Tax Compliance Certificate substantially in the form of Exhibit E-2 or Exhibit E-3, IRS Form W- 9 (or successor form), and/or other certification documents from each beneficial owner, as  applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect  partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender  may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit E-4 on behalf  of each such direct and indirect partner; or (E) other applicable forms, certificates or documents  prescribed by the IRS.  Each Lender agrees that if any form or certification it previously delivered  expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification  or promptly notify Borrower Representative, Agent and Term Loan Servicer in writing of its legal  inability to do so.  In addition, to the extent permitted by applicable Law, such forms shall be  delivered by each Foreign Lender upon the obsolescence or invalidity of any form previously  delivered by such Foreign Lender.  Each Foreign Lender shall promptly notify Borrower  Representative at any time it determines that it is no longer in a position to provide any previously  





 






49  MidCap / Viewray / Credit, Security and Guaranty Agreement               delivered certificate to Borrower Representative (or any other form of certification adopted by the  U.S. taxing authorities for such purpose).     (ii) Each Lender that is a “United States person” (as such term is defined in  Section 7701(a)(30) of the Code) for U.S. federal income tax purposes and is a party hereto on the  Closing Date or purports to become an assignee of an interest pursuant to Section 11.17(a) after the  Closing Date (unless such Lender was already a Lender hereunder immediately prior to such  assignment) shall, to the extent permitted by Law, provide to Borrower Representative, Agent and  Term Loan Servicer on or prior to the date on which such Lender becomes a Lender under this  Agreement (and from time to time thereafter upon the reasonable request of the Borrower  Representative, Term Loan Servicer or Agent), a properly completed and executed IRS Form W-9  or any successor form certifying as to such Lender’s entitlement to an exemption from U.S. backup  withholding and other applicable forms, certificates or documents prescribed by the IRS or  reasonably requested by Borrower Representative, Term Loan Servicer or Agent.  Each such  Lender shall promptly notify Borrowers at any time it determines that any certificate previously  delivered to Borrower Representative (or any other form of certification adopted by the U.S.  governmental authorities for such purposes) is no longer valid.     (iii) Any Foreign Lender shall, to the extent it is legally entitled to do so,  deliver to Borrower Representative, Agent and Term Loan Servicer (in such number of copies as  shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes  a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the  Borrower Representative, Term Loan Servicer or Agent), executed copies of any other form  prescribed by applicable Law as a basis for claiming exemption from or a reduction in U.S. Federal  withholding Tax, duly completed, together with such supplementary documentation as may be  prescribed by applicable law to permit Borrowers, Agent or Term Loan Servicer to determine the  withholding or deduction required to be made.  (d) If any Lender determines, in its reasonable discretion, that it has received a  refund in respect of any Taxes as to which it has been indemnified by any Borrower pursuant to this  Section 2.8 (including by the payment of additional amounts pursuant to this Section 2.8), then it shall  promptly pay an amount equal to such refund to Borrowers, net of all reasonable out-of-pocket expenses  of such Lender or of Agent or Term Loan Servicer with respect thereto, including any Taxes; provided,  however, that Borrowers, upon the written request of such Lender, Agent or Term Loan Servicer, agree  to repay any amount paid over to Borrowers to such Lender or to Agent or Term Loan Servicer (plus any  related penalties, interest or other charges imposed by the relevant Governmental Authority) in the event  such Lender, Agent or Term Loan Servicer is required, for any reason, to repay such refund to such  Governmental Authority.  Notwithstanding anything to the contrary in this Section 2.8, in no event will  the indemnified party be required to pay any amount to an indemnifying party pursuant to this  Section 2.8(d) the payment of which would place the indemnified party in a less favorable net after-Tax  position than the indemnified party would have been in if the Tax subject to indemnification and giving  rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification  payments or additional amounts with respect to such Tax had never been paid.  This Section 2.8 shall not  be construed to require any indemnified party to make available its Tax returns (or any other information  relating to its Taxes that it deems confidential) to the indemnifying party or any other Person.  (e) If a payment made to a Lender under any Financing Document would be subject  to U.S. federal withholding tax imposed by FATCA if such Lender were to fail to comply with the  applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b)  of the Code, as applicable), such Lender shall deliver to Borrower Representative, Agent and Term Loan  





 






50  MidCap / Viewray / Credit, Security and Guaranty Agreement               Servicer at the time or times prescribed by Law and at such time or times reasonably requested by  Borrower Representative, Agent or Term Loan Servicer such documentation prescribed by applicable  Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation  reasonably requested by Borrower Representative, Agent or Term Loan Servicer as may be necessary for  Borrowers, Agent and Term Loan Servicer to comply with their obligations under FATCA and to  determine that such Lender has complied with such Lender’s obligations under FATCA or to determine  the amount to deduct and withhold from such payment.  Solely for purposes of this clause (e), “FATCA”  shall include any amendments made to FATCA after the date of this Agreement.  (f) Each Lender shall severally indemnify Agent and Term Loan Servicer, within  ten (10) days after demand therefor, for (i) any Indemnified Taxes attributable to such Lender (but only  to the extent that any Credit Party has not already indemnified Agent or Term Loan Servicer, as  applicable, for such Indemnified Taxes and without limiting the obligation of the Credit Parties to do so),  (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 11.17 relating  to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Lender, in  each case, that are payable or paid by Agent or Term Loan Servicer in connection with any Financing  Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such  Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority.  A certificate  as to the amount of such payment or liability delivered to any Lender by Agent or Term Loan Servicer,  as appliable, shall be conclusive absent manifest error.  Each Lender hereby authorizes Agent and Term  Loan Servicer to set off and apply any and all amounts at any time owing to such Lender under any  Financing Document or otherwise payable by Agent or Term Loan Servicer, as applicable, to such Lender  from any other source against any amount due to Agent or Term Loan Servicer, as applicable, under this  paragraph (f).  (g) Each party’s obligations under Section 2.8(a) through (f) shall survive the  resignation or replacement of Agent or any assignment of rights by, or the replacement of, a Lender, and  the repayment, satisfaction or discharge of all Obligations hereunder.  (h) If any Lender shall reasonably determine that the adoption or taking effect of, or  any change in, any applicable Law regarding capital adequacy, in each instance, after the Closing Date,  or any change after the Closing Date in the interpretation, administration or application thereof by any  Governmental Authority, central bank or comparable agency charged with the interpretation,  administration or application thereof, or the compliance by any Lender or any Person controlling such  Lender with any request, guideline or directive regarding capital adequacy (whether or not having the  force of Law) of any such Governmental Authority, central bank or comparable agency adopted or  otherwise taking effect after the Closing Date, has or would have the effect of reducing the rate of return  on such Lender’s or such controlling Person’s capital as a consequence of such Lender’s obligations  hereunder to a level below that which such Lender or such controlling Person could have achieved but  for such adoption, taking effect, change, interpretation, administration, application or compliance (taking  into consideration such Lender’s or such controlling Person’s policies with respect to capital adequacy)  then from time to time, upon demand by such Lender (which demand shall be accompanied by a  certificate setting forth the basis for such demand and a calculation of the amount thereof in reasonable  detail, a copy of which shall be furnished to Agent and Term Loan Servicer), Borrowers shall promptly  pay to such Lender such additional amount as will compensate such Lender or such controlling Person  for such reduction, so long as such amounts have accrued on or after the day which is two hundred seventy  (270) days prior to the date on which such Lender first made demand therefor; provided that  notwithstanding anything in this Agreement to the contrary, (i) the Dodd-Frank Wall Street Reform and  Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in  connection therewith and (ii) all requests, rules, guidelines or directives promulgated by the Bank for  





 






51  MidCap / Viewray / Credit, Security and Guaranty Agreement               International Settlements, the Basel Committee on Banking Supervision (or any successor or similar  authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall  in each case be deemed to be a “change in applicable Law”, regardless of the date enacted, adopted or  issued.  (i) If any Lender requests compensation under any of the clauses in this Section 2.8,  or requires Borrowers to pay any additional amount to any Lender or any Governmental Authority for  the account of any Lender pursuant to Section 2.8, then, upon the written request of Borrower  Representative, such Lender shall use reasonable efforts to designate a different lending office for funding  or booking its Loans hereunder or to assign its rights and obligations hereunder (subject to the provisions  of Section 11.17) to another of its offices, branches or affiliates, if, in the reasonable judgment of such  Lender, such designation or assignment (i) would eliminate or materially reduce amounts payable  pursuant to any such Section, as the case may be, in the future, (ii) would not subject such Lender to any  unreimbursed cost or expense and (iii) would not otherwise be disadvantageous to such Lender (as  determined in its sole good faith discretion).  Without limitation of the provisions of Section 13.14, each  Borrower hereby agrees to pay all reasonable and documented, out-of-pocket costs and expenses incurred  by any Lender in connection with any such designation or assignment.  Section 2.9 Appointment of Borrower Representative.    (a) Each Borrower hereby irrevocably appoints and constitutes Borrower  Representative as its agent and attorney-in-fact to request and receive Loans in the name or on behalf of  such Borrower and any other Borrowers, deliver Notices of Borrowing and Borrowing Base Certificates  give instructions with respect to the disbursement of the proceeds of the Loans , giving and receiving all  other notices and consents hereunder or under any of the other Financing Documents and taking all other  actions (including in respect of compliance with covenants) in the name or on behalf of any Borrower or  Borrowers pursuant to this Agreement and the other Financing Documents.  Agent, Term Loan Servicer  and Lenders may disburse the Loans to such bank account of Borrower Representative or a Borrower or  otherwise make such Loans to a Borrower, in each case as Borrower Representative may designate or direct,  without notice to any other Borrower.  Notwithstanding anything to the contrary contained herein, Agent  or Term Loan Servicer, as applicable, may at any time and from time to time require that Loans to or for  the account of any Borrower be disbursed directly to an operating account of such Borrower.  (b) Borrower Representative hereby accepts the appointment by Borrowers to act as  the agent and attorney-in-fact of Borrowers pursuant to this Section 2.9.  Borrower Representative shall  ensure that the disbursement of any Loans that are at any time requested by or to be remitted to or for the  account of a Borrower, shall be remitted or issued to or for the account of such Borrower.   (c) Each Borrower hereby irrevocably appoints and constitutes Borrower  Representative as its agent to receive statements on account and all other notices from Agent, Term Loan  Servicer and the Lenders with respect to the Obligations or otherwise under or in connection with this  Agreement and the other Financing Documents.  (d) Any notice, election, representation, warranty, agreement or undertaking made or  delivered by or on behalf of any Borrower by Borrower Representative shall be deemed for all purposes to  have been made or delivered by such Borrower, as the case may be, and shall be binding upon and  enforceable against such Borrower to the same extent as if made or delivered directly by such Borrower.  (e) No resignation by or termination of the appointment of Borrower Representative  as agent and attorney-in-fact as aforesaid shall be effective, except after ten (10) Business Days’ prior  





 






52  MidCap / Viewray / Credit, Security and Guaranty Agreement               written notice to Agent and Term Loan Servicer.  If the Borrower Representative resigns under this  Agreement, Borrowers shall be entitled to appoint a successor Borrower Representative (which shall be a  Borrower and shall be reasonably acceptable to Agent and Term Loan Servicer as such successor).  Upon  the acceptance of its appointment as successor Borrower Representative hereunder, such successor  Borrower Representative shall succeed to all the rights, powers and duties of the retiring Borrower  Representative and the term “Borrower Representative” means such successor Borrower Representative for  all purposes of this Agreement and the other Financing Documents, and the retiring or terminated Borrower  Representative’s appointment, powers and duties as Borrower Representative shall be thereupon  terminated.  Section 2.10 Joint and Several Liability; Rights of Contribution; Subordination and  Subrogation.  (a) Borrowers are defined collectively to include all Persons named as one of the  Borrowers herein; provided, however, that any references herein to “any Borrower”, “each Borrower” or  similar references, shall be construed as a reference to each individual Person named as one of the  Borrowers herein.  Each Person so named shall be jointly and severally liable for all of the obligations of  Borrowers under this Agreement.  Each Borrower, individually, expressly understands, agrees and  acknowledges, that the credit facilities would not be made available on the terms herein in the absence of  the collective credit of all of the Persons named as the Borrowers herein, the joint and several liability of  all such Persons, and the cross-collateralization of the collateral of all such Persons.  Accordingly, each  Borrower individually acknowledges that the benefit to each of the Persons named as one of the  Borrowers as a whole constitutes reasonably equivalent value, regardless of the amount of the credit  facilities actually borrowed by, advanced to, or the amount of collateral provided by, any individual  Borrower.  In addition, each entity named as one of the Borrowers herein hereby acknowledges and agrees  that all of the representations, warranties, covenants, obligations, conditions, agreements and other terms  contained in this Agreement shall be applicable to and shall be binding upon and measured and  enforceable individually against each Person named as one of the Borrowers herein as well as all such  Persons when taken together.  By way of illustration, but without limiting the generality of the foregoing,  the terms of Section 10.1 of this Agreement are to be applied to each individual Person named as one of  the Borrowers herein (as well as to all such Persons taken as a whole), such that the occurrence of any of  the events described in Section 10.1 of this Agreement as to any Person named as one of the Borrowers  herein shall constitute an Event of Default even if such event has not occurred as to any other Persons  named as the Borrowers or as to all such Persons taken as a whole.  (b) Notwithstanding any provisions of this Agreement to the contrary, it is intended  that the joint and several nature of the liability of each Borrower for the Obligations and the Liens granted  by Borrowers to secure the Obligations, not constitute a Fraudulent Conveyance (as defined below).   Consequently, Agent, Term Loan Servicer, Lenders and each Borrower agree that if the liability of a  Borrower for the Obligations, or any Liens granted by such Borrower securing the Obligations would,  but for the application of this sentence, constitute a Fraudulent Conveyance, the liability of such Borrower  and the Liens securing such liability shall be valid and enforceable only to the maximum extent that  would not cause such liability or such Lien to constitute a Fraudulent Conveyance, and the liability of  such Borrower and this Agreement shall automatically be deemed to have been amended accordingly.   For purposes hereof, the term “Fraudulent Conveyance” means a fraudulent conveyance under  Section 548 of Chapter 11 of Title II of the Bankruptcy Code or a fraudulent conveyance or fraudulent  transfer under the applicable provisions of any fraudulent conveyance or fraudulent transfer law or similar  law of any state, nation or other governmental unit, as in effect from time to time.  





 






53  MidCap / Viewray / Credit, Security and Guaranty Agreement               (c) Agent is hereby authorized, without notice or demand (except as otherwise  specifically required under this Agreement) and without affecting the liability of any Borrower hereunder,  at any time and from time to time, to (i) renew, extend or otherwise increase the time for payment of the  Obligations; (ii) with the written agreement of any Borrower, change the terms relating to the Obligations  or otherwise modify, amend or change the terms of any Note or other agreement, document or instrument  now or hereafter executed by any Borrower and delivered to Agent for any Lender; (iii) accept partial  payments of the Obligations; (iv) take and hold any Collateral for the payment of the Obligations or for  the payment of any guaranties of the Obligations and exchange, enforce, waive and release any such  Collateral; (v) apply any such Collateral and direct the order or manner of sale thereof as Agent, in its  reasonable discretion, may determine; and (vi) settle, release, compromise, collect or otherwise liquidate  the Obligations and any Collateral therefor in any manner, all guarantor and surety defenses being hereby  waived by each Borrower.  Except as specifically provided in this Agreement or any of the other  Financing Documents, Agent shall have the exclusive right to determine the time and manner of  application of any payments or credits, whether received from any Borrower or any other source, and  such determination shall be binding on all Borrowers.  All such payments and credits may be applied,  reversed and reapplied, in whole or in part, to any of the Obligations that Agent shall determine, in its  reasonable discretion, without affecting the validity or enforceability of the Obligations of any other  Borrower.  (d) Each Borrower hereby agrees that, except as hereinafter provided, its obligations  hereunder shall be unconditional, irrespective of (i) the absence of any attempt to collect the Obligations  from any obligor or other action to enforce the same; (ii) the waiver or consent by Agent with respect to  any provision of any instrument evidencing the Obligations, or any part thereof, or any other agreement  heretofore, now or hereafter executed by a Borrower and delivered to Agent; (iii) failure by Agent to take  any steps to perfect and maintain its security interest in, or to preserve its rights to, any security or  collateral for the Obligations; (iv) the institution of any proceeding under the Bankruptcy Code, or any  similar proceeding, by or against a Borrower or Agent’s election in any such proceeding of the application  of Section 1111(b)(2) of the Bankruptcy Code; (v) any borrowing or grant of a security interest by a  Borrower as debtor-in-possession, under Section 364 of the Bankruptcy Code; (vi) the disallowance,  under Section 502 of the Bankruptcy Code, of all or any portion of Agent’s claim(s) for repayment of any  of the Obligations; or (vii) any other circumstance other than payment in full of the Obligations which  might otherwise constitute a legal or equitable discharge or defense of a guarantor or surety.  (e) Borrowers hereby agree, as between themselves, that to the extent that Agent or  Term Loan Servicer, on behalf of Lenders, shall have received from any Borrower any Recovery Amount  (as defined below), then the paying Borrower shall have a right of contribution against each other  Borrower in an amount equal to such other Borrower’s contributive share of such Recovery Amount;  provided, however, that in the event any Borrower suffers a Deficiency Amount (as defined below), then  the Borrower suffering the Deficiency Amount shall be entitled to seek and receive contribution from and  against the other Borrowers in an amount equal to the Deficiency Amount; and provided, further, that in  no event shall the aggregate amounts so reimbursed by reason of the contribution of any Borrower equal  or exceed an amount that would, if paid, constitute or result in Fraudulent Conveyance.  Until all  Obligations have been paid and satisfied in full (other than inchoate indemnification obligations for which  no claim has yet been made), no payment made by or for the account of a Borrower including, without  limitation, (i) a payment made by such Borrower on behalf of the liabilities of any other Borrower, or  (ii) a payment made by any other Guarantor under any Guarantee, shall entitle such Borrower, by  subrogation or otherwise, to any payment from such other Borrower or from or out of such other  Borrower’s property.  The right of each Borrower to receive any contribution under this Section 2.10(e)  or by subrogation or otherwise from any other Borrower shall be subordinate in right of payment to the  Obligations and such Borrower shall not exercise any right or remedy against such other Borrower or any  





 






54  MidCap / Viewray / Credit, Security and Guaranty Agreement               property of such other Borrower by reason of any performance of such Borrower of its joint and several  obligations hereunder, until the Obligations (other than inchoate indemnification obligations for which  no claim has yet been made) have been indefeasibly paid and satisfied in full, and no Borrower shall  exercise any right or remedy with respect to this Section 2.10(e) until the Obligations (other than inchoate  indemnification obligations for which no claim has yet been made) have been indefeasibly paid and  satisfied in full.  As used in this Section 2.10(e), the term “Recovery Amount” means the amount of  proceeds received by or credited to Agent or Term Loan Servicer from the exercise of any remedy of the  Lenders under this Agreement or the other Financing Documents, including, without limitation, the sale  of any Collateral.  As used in this Section 2.10(e), the term “Deficiency Amount” means any amount  that is less than the entire amount a Borrower is entitled to receive by way of contribution or subrogation  from, but that has not been paid by, the other Borrowers in respect of any Recovery Amount attributable  to the Borrower entitled to contribution, until the Deficiency Amount has been reduced to Zero Dollars  ($0) through contributions and reimbursements made under the terms of this Section 2.10(e) or otherwise.  Section 2.11 Collections and Lockbox Account.   (a) Borrowers shall maintain a lockbox (the “Lockbox”) with Silicon Valley Bank  or another United States depository institution reasonably acceptable to Agent (the “Lockbox Bank”),  subject to the provisions of this Agreement, and shall execute with the Lockbox Bank a Deposit Account  Control Agreement and such other agreements related to such Lockbox as Agent may require.  Borrowers  shall ensure that all collections of Accounts are paid directly from Account Debtors (i) into the Lockbox  for deposit into the Lockbox Account and/or (ii) directly into the Lockbox Account; provided, however,  that unless Agent shall otherwise direct by written notice to Borrowers, Borrowers shall be permitted to  cause Account Debtors who are individuals to pay Accounts directly to Borrowers, which Borrowers  shall then administer and apply in the manner required below. All funds deposited into a Lockbox  Account shall be transferred (x) during any Cash Dominion Period, into the Revolving Loan Payment  Account by the close of each Business Day, or (y) on any Business Day not occurring during a Cash  Dominion Period, into a Borrower operating deposit account at Silicon Valley Bank.  (b) [Reserved.]    (c) Notwithstanding anything in any lockbox agreement or Deposit Account Control  Agreement to the contrary, Borrowers agree that they shall be liable for any fees and charges in effect  from time to time and charged by the Lockbox Bank in connection with the Lockbox, the Lockbox  Account, and that Agent shall have no liability therefor.  Borrowers hereby indemnify and agree to hold  Agent harmless from any and all liabilities, claims, losses and demands whatsoever, including reasonable  attorneys’ fees and expenses, arising from or relating to actions of Agent or the Lockbox Bank pursuant  to this Section or any lockbox agreement or Deposit Account Control Agreement or similar agreement,  except to the extent of such losses arising solely from Agent’s gross negligence or willful misconduct.  (d) During any Cash Dominion Period, Agent shall apply, on a daily basis, all funds  transferred into the Revolving Loan Payment Account pursuant to this Section 2.11 to reduce the  outstanding Revolving Loans in such order of application as Agent shall elect.  If as the result of  collections of Accounts pursuant to the terms and conditions of this Section, a credit balance exists with  respect to the Revolving Loan Account, such credit balance shall not accrue interest in favor of  Borrowers, but Agent shall transfer such funds into an account designated by Borrower Representative  for so long as no Event of Default exists.  (e) To the extent that any collections of Accounts or proceeds of other Collateral are  not sent directly to the Lockbox or Lockbox Account but are received by any Borrower, such collections  





 






55  MidCap / Viewray / Credit, Security and Guaranty Agreement               shall be held in trust for the benefit of Agent pursuant to an express trust created hereby and immediately  remitted, in the form received, to applicable Lockbox or Lockbox Account.  No such funds received by  any Borrower shall be commingled with other funds of the Credit Parties.    (f) Borrowers acknowledge and agree that compliance with the terms of this Section  is essential, and that Agent and Lenders will suffer immediate and irreparable injury and have no adequate  remedy at law, if, at any time following the initial borrowing of Revolving Loans, any Borrower, through  acts or omissions, causes or permits Account Debtors to send payments other than to the Lockbox or  Lockbox Accounts or if any Borrower fails to promptly deposit collections of Accounts or proceeds of  other Collateral in the Lockbox Account as herein required.  Accordingly, in addition to all other rights  and remedies of Agent and Lenders hereunder, Agent shall have the right to seek specific performance  of the Borrowers’ obligations under this Section, and any other equitable relief as Agent may deem  necessary or appropriate, and Borrowers waive any requirement for the posting of a bond in connection  with such equitable relief.  (g) Borrowers shall not, and Borrowers shall not suffer or permit any Credit Party  to, (i) withdraw any amounts from any Lockbox Account, (ii) change the procedures or sweep  instructions under the agreements governing any Lockbox Accounts, or (iii) send to or deposit in any  Lockbox Account any funds other than payments made with respect to and proceeds of Accounts or other  Collateral.    (h) Credit Parties shall cooperate with Agent in the identification and reconciliation  on a daily basis of all amounts received in or required to be deposited into the Lockbox Accounts.  If  more than fifteen percent (15%) of the collections of Accounts received by Borrowers during any given  fifteen (15) day period is not identified or reconciled to the reasonable satisfaction of Agent within ten  (10) Business Days of receipt, Agent and Revolving Lenders shall not be obligated to make further  advances under this Agreement until such amount is identified or is reconciled to the reasonable  satisfaction of Agent, as the case may be.  In addition, if any such amount cannot be identified or  reconciled to the reasonable satisfaction of Agent, Agent may utilize its own staff or, if it deems  necessary, engage an outside auditor, in either case at Borrowers’ expense (which in the case of Agent’s  own staff shall be in accordance with Agent’s then prevailing customary charges (plus expenses)), to  make such examination and report as may be necessary to identify and reconcile such amount.   (i) If any Borrower breaches its obligation to direct payments of the proceeds of the  Collateral to the Lockbox Account, Agent, as the irrevocably made, constituted and appointed true and  lawful attorney for Borrowers, may, by the signature or other act of any of Agent’s authorized  representatives (without requiring any of them to do so), direct any Account Debtor to pay proceeds of  the Collateral to Borrowers by directing payment to the Lockbox Account.  (j) Without limiting the provisions of Section 5.14 or Borrower’s obligations  thereunder, and subject to Section 7.4, Borrowers shall (i) maintain all of its operating and other Deposit  Accounts and Securities Accounts (other than Excluded Accounts) at Silicon Valley Bank or its Affiliates  and (ii) maintain all of its primary banking services, including business credit cards, cash management  and letters of credit, with Silicon Valley Bank, in each case, so long as Silicon Valley Bank remains a  Lender under this Agreement.   (k) Nothing in this Section 2.11 shall be deemed to limit any of Agent or Lenders  remedies following an Event of Default under this Agreement, any Deposit Account Control Agreement  or any other Financing Document or under applicable Law.   





 






56  MidCap / Viewray / Credit, Security and Guaranty Agreement               Section 2.12 Termination; Restriction on Termination.  (a) Termination by Lenders.  In addition to the rights set forth in Section 10.2, Agent  may, and at the direction of Required Lenders shall, terminate this Agreement without notice upon or  after the occurrence and during the continuance of an Event of Default.  (b) Termination by Borrowers.  Upon at least ten (10) Business Day’ prior written  notice and pursuant to payoff documentation in form and substance reasonably satisfactory to Agent,  Term Loan Servicer and Lenders, Borrowers may, at their option, terminate this Agreement; provided,  however, that no such termination shall be effective until Borrowers have complied with Section 2.12(c)  and the Obligations, including the payment of all fees due and owing under any Fee Letter, are paid in  full (other than inchoate indemnification obligations for which no claim has yet been made).  Any notice  of termination given by Borrowers shall be irrevocable unless all Lenders otherwise agree in writing and  no Lender shall have any obligation to make any Loans on or after the termination date stated in such  notice.  Borrowers may elect to terminate this Agreement in its entirety only.  No section of this  Agreement or type of Loan available hereunder may be terminated singly.   (c) Effectiveness of Termination.  All of the Obligations shall be immediately due  and payable upon the Termination Date.  All undertakings, agreements, covenants, warranties and  representations of the Credit Parties contained in the Financing Documents shall survive any such  termination and Agent shall retain its Liens in the Collateral and Agent, Term Loan Servicer and each  Lender shall retain all of its rights and remedies under the Financing Documents notwithstanding such  termination until all Obligations have been discharged or paid, in full, in immediately available funds,  including, without limitation, all Obligations under Section 2.2 and the terms of any Fee Letter resulting  from such termination (in each case, other than inchoate indemnification obligations for which no claim  has yet been made).  Notwithstanding the foregoing or the payment in full of the Obligations, Agent shall  not be required to terminate its Liens in the Collateral unless, with respect to any loss or damage Agent  may incur as a result of dishonored checks or other items of payment received by Agent from Credit  Parties or any Account Debtor and applied to the Obligations, Agent shall have retained cash Collateral  or other Collateral for such period of time as Agent, in its discretion, may deem necessary to protect  Agent and each Lender from any such loss or damage.  Upon the payment in full, in cash in immediately  available funds, of all Obligations and the termination of the Revolving Loan Commitments and Term  Loan Commitments, as Borrower may reasonably request, Agent shall, at Borrower’s sole cost and  expense, execute and deliver such documents evidencing the release and termination of the security  interest in the Collateral granted under this Agreement and the other Financing Documents pursuant to  and in accordance with the terms of any applicable payoff documentation.  ARTICLE 3 - REPRESENTATIONS AND WARRANTIES  To induce Agent and Lenders to enter into this Agreement and to make the Loans and other credit  accommodations contemplated hereby, each Borrower and each Credit Party party hereto, hereby represents  and warrants to Agent and each Lender that:  Section 3.1 Existence and Power.  Each Credit Party (a) is an entity as specified on  Schedule 3.1, (b) is duly organized, validly existing and in good standing under the laws of the jurisdiction  of its organization specified on Schedule 3.1, (c) has the same legal name as it appears in such Credit Party’s  Organizational Documents and an organizational identification number (if any), in each case as specified  on Schedule 3.1, (d) has all powers to own its assets and has powers and all Permits necessary or desirable  in the operation of its business as presently conducted or as proposed to be conducted, except where the  failure to have such powers or Permits would not reasonably be expected to have a Material Adverse Effect,  





 






57  MidCap / Viewray / Credit, Security and Guaranty Agreement               and (e) is qualified to do business as a foreign entity in each jurisdiction in which it is required to be so  qualified, which jurisdictions as of the Closing Date are specified on Schedule 3.1, except in the case of  this clause (e) where the failure to be so qualified would not reasonably be expected to have a Material  Adverse Effect.  Except as set forth on Schedule 3.1, no Credit Party (x) has had, over the five (5) year  period preceding the Closing Date, any name other than its current name, or (y) was incorporated or  organized under the laws of any jurisdiction other than its current jurisdiction of incorporation or  organization.  Section 3.2 Organization and Governmental Authorization; No Contravention.  The execution,  delivery and performance by each Credit Party of the Financing Documents to which it is a party (a) are  within its powers, (b) have been duly authorized by all necessary action pursuant to its Organizational  Documents, (c) require no further action by or in respect of, or filing with, any Governmental Authority  other than (i) recordings, filings and other perfection actions in connection with the Liens granted to Agent  under this Agreement or any Security Document and (ii) those obtained or made on or prior to the Closing  Date and (d) do not violate, conflict with or cause a breach or a default under (i) any Law applicable to any  Credit Party, (ii) any of the Organizational Documents of any Credit Party, or (iii) any agreement or  instrument binding upon it, except for such violations, conflicts, breaches or defaults as would not, with  respect to this clause (iii), reasonably be expected to have a Material Adverse Effect.  Section 3.3 Binding Effect.  Each of the Financing Documents to which any Credit Party is a  party constitutes a valid and binding agreement or instrument of such Credit Party, enforceable against such  Credit Party in accordance with its respective terms, except as the enforceability thereof may be limited by  bankruptcy, insolvency or other similar laws relating to the enforcement of creditors’ rights generally and  by general equitable principles.  Each Financing Document has been duly executed and delivered by each  Credit Party party thereto.  Section 3.4 Capitalization.  The issued and outstanding equity securities of each of the Credit  Parties (other than Viewray) as of the Closing Date are as set forth on Schedule 3.4.  All issued and  outstanding Equity Interest of each of the Credit Parties (other than Viewray) are duly authorized and  validly issued, fully paid, nonassessable, free and clear of all Liens other than those in favor of Agent for  the benefit of Agent and Lenders, and such equity securities were issued in compliance with all applicable  Laws.  The identity of the holders of the equity securities of each of the Credit Parties (other than Viewray)  and the percentage of their fully-diluted ownership of the equity securities of each of the Credit Parties as  of the Closing Date is set forth on Schedule 3.4.  No shares of the capital stock or other Equity Interests of  any Credit Party (other than Viewray), other than those described above, are issued and outstanding as of  the Closing Date.  Except as set forth on Schedule 3.4, as of the Closing Date there are no preemptive or  other outstanding rights, options, warrants, conversion rights or similar agreements or understandings for  the purchase or acquisition from any Credit Party of any equity securities of any such entity.    Section 3.5 Financial Information.  All information delivered to Agent and pertaining to the  financial condition of any Credit Party fairly in all material respects presents the financial position of such  Credit Party as of such date and for such period then ended in conformity with GAAP (and as to unaudited  financial statements, subject to normal year-end adjustments and the absence of footnote disclosures).   Since December 31, 2021, there has been (a) no material adverse change in the business, operations,  properties, prospects or condition (financial or otherwise) of any Credit Party and (b) no fact, event or  circumstance that could reasonably be expected to result in a Material Adverse Effect.    Section 3.6 Litigation.  Except as set forth on Schedule 3.6 as of the Closing Date, and except  as hereafter disclosed to Agent in writing, there is no Litigation pending against, or to such Borrower’s  knowledge threatened in writing against, any Credit Party or any of their Subsidiaries, which, if adversely  





 






58  MidCap / Viewray / Credit, Security and Guaranty Agreement               determined, could reasonably be expected to result in any judgment or liability of more than One Million  Dollars ($1,000,000).  There is no Litigation pending in which an adverse decision could reasonably be  expected to have a Material Adverse Effect or which in any manner draws into question the validity of any  of the Financing Documents.    Section 3.7 Ownership of Property.  Each Borrower and each of its Subsidiaries is the lawful  sole owner of, has good and marketable title to and is in lawful possession of, or has valid leasehold interests  in, all material properties, accounts and other assets (real or personal, tangible, intangible or mixed)  purported or reported to be owned or leased (as the case may be) by such Person.  Section 3.8 No Default.  No Event of Default, or to such Borrower’s knowledge, Default, has  occurred and is continuing.  No Credit Party is in breach or default under or with respect to any contract,  agreement, lease or other instrument to which it is a party or by which its property is bound or affected,  which breach or default could reasonably be expected to have a Material Adverse Effect.  Section 3.9 Labor Matters.  As of the Closing Date, there are no strikes or other labor disputes  pending or, to any Borrower’s knowledge, threatened in writing against any Credit Party, which could  reasonably be expected to have a Material Adverse Effect.  Hours worked and payments made to the  employees of the Credit Parties have not been in material violation of the Fair Labor Standards Act or any  other applicable Law dealing with such matters.  All payments due from the Credit Parties, or for which  any claim may be made against any of them, on account of wages and employee and retiree health and  welfare insurance and other benefits have been paid or accrued as a liability on their books, as the case may  be.  The consummation of the transactions contemplated by the Financing Documents will not give rise to  a right of termination or right of renegotiation on the part of any union under any collective bargaining  agreement to which it is a party or by which it is bound, the result of which could reasonably be expected  to have a Material Adverse Effect.  Section 3.10 Investment Company Act.  No Credit Party is an “investment company” or a  company “controlled” by an “investment company” or a “subsidiary” of an “investment company,” all  within the meaning of the Investment Company Act of 1940.    Section 3.11 Margin Regulations.    (a) The Credit Parties and their Subsidiaries do not own any stock, partnership  interest or other equity securities, except for Permitted Investments.  Without limiting the foregoing, the  Credit Parties and their Subsidiaries do not own or hold any Margin Stock.    (b) None of the proceeds from the Loans have been or will be used, directly or  indirectly, for the purpose of purchasing or carrying any Margin Stock, for the purpose of reducing or  retiring any indebtedness which was originally incurred to purchase or carry any Margin Stock or for any  other purpose which might cause any of the Loans to be considered a “purpose credit” within the meaning  of Regulation T, U or X of the Federal Reserve Board.  Section 3.12 Compliance With Laws; Anti-Terrorism Laws.  (a) Each Credit Party is in compliance with the requirements of all applicable Laws,  (including all applicable Healthcare Laws), except for such Laws the noncompliance with which could  not reasonably be expected to have a Material Adverse Effect.  





 






59  MidCap / Viewray / Credit, Security and Guaranty Agreement               (b) None of the Credit Parties and, to the knowledge of the Credit Parties, none of  their Affiliates (i) is in violation of any Anti-Terrorism Law, (ii) engages in or conspires to engage in any  transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any  of the prohibitions set forth in any Anti-Terrorism Law, (iii) is a Blocked Person, or is controlled by a  Blocked Person, (iv) is acting or will act for or on behalf of a Blocked Person, (v) is associated with, or  will become associated with, a Blocked Person or (vi) is providing, or will provide, material, financial or  technical support or other services to or in support of acts of terrorism of a Blocked Person.  No Credit  Party nor, to the knowledge of any Credit Party, any of its Affiliates or agents acting or benefiting in any  capacity in connection with the transactions contemplated by this Agreement, (A) conducts any business  or engages in making or receiving any contribution of funds, goods or services directly or indirectly to or  for the benefit of any Blocked Person or Sanctioned Country, or (B) deals in, or otherwise engages in any  transaction directly or indirectly relating to, any property or interest in property blocked pursuant to  Executive Order No. 13224, any similar executive order or other Anti-Terrorism Law.  Section 3.13 Taxes.  All federal income and franchise tax returns, reports and statements, all  state and local income and franchise tax returns, reports and statements and all other material state and local  tax returns, reports and statements required to be filed by or on behalf of each Credit Party have been filed  with the appropriate Governmental Authorities in all jurisdictions in which such returns, reports and  statements are required to be filed and, except to the extent subject to a Permitted Contest, all Taxes  (including real property Taxes) and other charges shown to be due and payable in respect thereof have been  timely paid prior to the date on which any fine, penalty, interest, late charge or loss may be added thereto  for nonpayment thereof.  Except to the extent subject to a Permitted Contest, all state and local sales and  use Taxes required to be paid by each Credit Party have been paid.  All federal and state returns have been  filed by each Credit Party for all periods for which returns were due with respect to employee income tax  withholding, social security and unemployment taxes, and, except to the extent subject to a Permitted  Contest, the amounts shown thereon to be due and payable have been paid in full or adequate provisions  therefor have been made.  Section 3.14 Compliance with ERISA.    (a) Each ERISA Plan (and the related trusts and funding agreements) complies in  form and in operation with, has been administered in compliance with, and the terms of each ERISA Plan  satisfy, the applicable requirements of ERISA and the Code in all material respects.  Each ERISA Plan  which is intended to be qualified under Section 401(a) of the Code is so qualified, and the United States  Internal Revenue Service has issued a favorable determination letter with respect to each such ERISA  Plan which may be relied on currently.  No Credit Party has incurred liability for any material excise tax  under any of Sections 4971 through 5000 of the Code.  (b) Except as would not reasonably be expected, individually or in the aggregate, to  have a Material Adverse Effect, each Credit Party and each Subsidiary is in compliance with the  applicable provisions of ERISA and the provision of the Code relating to ERISA Plans and the regulations  and published interpretations therein.  During the thirty-six (36) month period prior to the Closing Date  or the making of any Loan (i) no steps have been taken to terminate any Pension Plan, and (ii) no  contribution failure has occurred with respect to any Pension Plan sufficient to give rise to a Lien under  Section 303(k) of ERISA or Section 430(k) of the Code and no event has occurred that would give rise  to a Lien under Section 4068 of ERISA.  No condition exists or event or transaction has occurred with  respect to any Pension Plan which would result in the incurrence by any Credit Party of any material  liability, fine or penalty.  No Credit Party has incurred liability to the PBGC (other than for current  premiums) with respect to any employee Pension Plan.  All contributions (if any) have been made on a  timely basis to any Multiemployer Plan that are required to be made by any Credit Party or any other  





 






60  MidCap / Viewray / Credit, Security and Guaranty Agreement               member of the Controlled Group under the terms of the plan or of any collective bargaining agreement  or by applicable Law; no Credit Party nor any member of the Controlled Group has withdrawn or partially  withdrawn from any Multiemployer Plan, incurred any withdrawal liability with respect to any such plan  or received notice of any claim or demand for withdrawal liability or partial withdrawal liability from  any such plan, and no condition has occurred which, if continued, would result in a withdrawal or partial  withdrawal from any such plan, and no Credit Party nor any member of the Controlled Group has received  any notice that any Multiemployer Plan is in reorganization, that increased contributions may be required  to avoid a reduction in plan benefits  or the imposition of any excise tax, that any such plan is or has been  funded at a rate less than that required under Section 412 of the Code, that any such plan is or may be  terminated, or that any such plan is or may become insolvent.  Section 3.15 Consummation of Financing Documents; Brokers.   Except for fees payable to  Agent, Term Loan Servicer and/or Lenders, no broker, finder or other intermediary has brought about the  obtaining, making or closing of the transactions contemplated by the Financing Documents, and no Credit  Party has or will have any obligation to any Person in respect of any finder’s or brokerage fees, commissions  or other expenses in connection herewith or therewith.   Section 3.16 [Reserved].    Section 3.17 Material Contracts.  Except for the agreements set forth on Schedule 3.17, as of  the Closing Date there are no Material Contracts.  The consummation of the transactions contemplated by  the Financing Documents will not give rise to a right of termination in favor of any party to any Material  Contract (other than any Credit Party), except for such Material Contracts the noncompliance with which  would not reasonably be expected to have a Material Adverse Effect.    Section 3.18 Compliance with Environmental Requirements; No Hazardous Materials.  Except  in each case as set forth on Schedule 3.18:  (a) no notice, notification, demand, request for information, citation, summons,  complaint or order has been issued, no complaint has been filed, no penalty has been assessed and no  investigation or review is pending, or to such Credit Party’s knowledge, threatened in writing by any  Governmental Authority or other Person with respect to any (i) alleged violation by any Credit Party of  any Environmental Law, (ii) alleged failure by any Credit Party to have any Permits required in  connection with the conduct of its business or to comply with the terms and conditions thereof, (iii) any  generation, treatment, storage, recycling, transportation or disposal of any Hazardous Materials, or  (iv) release of Hazardous Materials, in each case except where the failure to obtain such document could  not reasonably be expected to have a Material Adverse Effect; and   (b) no property now owned or leased by any Credit Party and, to the knowledge of  each Credit Party, no such property previously owned or leased by any Credit Party, to which any Credit  Party has, directly or indirectly, transported or arranged for the transportation of any Hazardous Materials  in violation of applicable Law, is listed or, to such Credit Party’s knowledge, proposed for listing, on the  National Priorities List promulgated pursuant to CERCLA, or CERCLIS (as defined in CERCLA) or any  similar state list or is the subject of federal, state or local enforcement actions or, to the knowledge of  such Credit Party, other investigations which may lead to claims against any Credit Party for clean-up  costs, remedial work, damage to natural resources or personal injury claims, including, without limitation,  claims under CERCLA, which claims could reasonably be expected to have a Material Adverse Effect.  For purposes of this Section 3.18, each Credit Party shall be deemed to include any business or  business entity (including a corporation) that is, in whole or in part, a predecessor of such Credit Party.  





 






61  MidCap / Viewray / Credit, Security and Guaranty Agreement               Section 3.19 Intellectual Property and License Agreements.  A list of all Registered Intellectual  Property of each Credit Party and all material in-bound license or sublicense agreements, and exclusive  out-bound license or sublicense agreements (but, in each case, excluding in-bound licenses of over-the- counter and other software that is commercially available to the public and open source licenses in the  Ordinary Course of Business), as of the Closing Date and, as updated pursuant to Section 4.15, is set forth  on Schedule 3.19.  Except for Permitted Licenses and Permitted Liens arising by operation of law, each  Credit Party is the sole owner of its material Intellectual Property free and clear of any Liens.  Each material  patent owned or licensed by any Credit Party is valid and enforceable in all material respects and no part of  the Material Intangible Assets has been judged invalid or unenforceable, in whole or in part, and to the best  of Credit Parties’ knowledge, no claim has been made that any part of the Intellectual Property violates the  rights of any third party in any material respect.  Section 3.20 Solvency.  After giving effect to the Loan advance and the liabilities and  obligations of each Credit Party under the Financing Documents, each Borrower and each additional Credit  Party is Solvent.  Section 3.21 Full Disclosure.  None of the written information (financial or otherwise) furnished  by or on behalf of any Credit Party to Agent or any Lender in connection with the consummation of the  transactions contemplated by the Financing Documents, contains any untrue statement of a material fact or  omits to state a material fact necessary to make the statements contained herein or therein not misleading  in light of the circumstances under which such statements were made.  All financial projections delivered  to Agent and the Lenders by Credit Parties (or their agents) have been prepared on the basis of the  assumptions stated therein.  Such projections represent each Credit Party’s best estimate of such Credit  Party’s future financial performance and such assumptions are believed by such Credit Party to be fair and  reasonable in light of current business conditions; provided, however, that Credit Parties can give no  assurance that such projections will be attained.  Agent and each Lender acknowledges and agrees that all  financial performance projections delivered to Agent represent Borrowers’ best good faith estimate of  future financial performance and are based on assumptions believed by Credit Parties to be fair and  reasonable in light of current market conditions, it being acknowledged and agreed by Agent and Lenders  that projections as to future events are not to be viewed as facts and that the actual results during the period  or periods covered by such projections may differ from the projected results.  Section 3.22 Reserved.    Section 3.23 Subsidiaries.  Credit Parties do not own any stock, partnership interests, limited  liability company interests or other equity securities or Subsidiaries except for Permitted Investments.   Credit Parties are in compliance with all requirements of this Agreement relating to the Restricted Foreign  Subsidiaries, including the provisions of Section 4.11(e).  Section 3.24 Accuracy of Schedules.  All information set forth in the Schedules to this  Agreement is true, accurate and complete in all material respects as of the Closing Date.  All information  set forth in the Perfection Certificate is true, accurate and complete in all material respects as of the Closing  Date.    Section 3.25 Eligible Account; Eligible Inventory.  (a) As to each Account that is identified by Borrowers as an Eligible Account in a  Borrowing Base Certificate submitted to Agent, such Account is (i) a bona fide existing payment  obligation of the applicable Account Debtor created by the sale and delivery of Inventory or the rendition  of services to such Account Debtor in the Ordinary Course of Business of the applicable Borrower,  





 






62  MidCap / Viewray / Credit, Security and Guaranty Agreement               (ii) owed to the applicable Borrower without any known defenses, disputes, offsets, counterclaims, or  rights of return or cancellation, and (iii) not excluded as ineligible by virtue of one or more of the  excluding criteria set forth in the definition of “Eligible Account”.  (b) As to each item of Inventory that is identified by the applicable Borrowers as  Eligible Inventory in a Borrowing Base Certificate submitted to Agent, such Inventory is (a) of good and  merchantable quality, free from known defects, (b) not excluded as ineligible by virtue of one or more of  the excluding criteria (set forth in the definition of “Eligible Inventory”), and (c) otherwise constitutes  “Eligible Inventory” under such definition.  Section 3.26 Regulatory Matters.    (a) With respect to each material Product, (i) the Credit Parties and their Subsidiaries  have received, and such Product is the subject of, all Regulatory Required Permits needed in connection  with the testing, manufacture, marketing or sale of such Product as currently being conducted by or on  behalf of the Credit Parties, and have provided Agent with all notices and other information required by  Section 4.1, and (ii) such Product is being tested, manufactured, marketed or sold, as the case may be, by  Credit Parties (or to the Credit Parties’ knowledge, by any applicable third parties) in material compliance  with all applicable Laws and Regulatory Required Permits.   (b) None of the Credit Parties or any Subsidiary thereof are in violation of any  Healthcare Law in any material respect.  (c) To the Credit Parties’ knowledge (after reasonable inquiry), none of the Credit  Parties or their Subsidiaries’ officers, directors, employees, shareholders, their agents or affiliates has  made an untrue statement of material fact or fraudulent statement to the FDA or failed to disclose a  material fact required to be disclosed to the FDA, committed an act, made a statement, or failed to make  a statement that could reasonably be expected to provide a basis for the FDA to invoke its policy  respecting “Fraud, Untrue Statements of Material Facts, Bribery, and Illegal Gratuities,” set forth in 56  Fed. Regulation 46191 (September 10, 1991).  (d) Except as would not reasonably be expected to result in a Material Adverse  Effect, each Product (i) has been and/or shall be manufactured, imported, possessed, owned, warehoused,  marketed, promoted, sold, labeled, furnished, distributed and marketed and each service has been  conducted in accordance with all applicable Permits and Laws; and (ii) has been and/or shall be  manufactured in accordance with Good Manufacturing Practices.   (e) No Credit Party, nor any Subsidiary thereof, is subject to any proceeding, suit  or, to any Credit Party’s knowledge, investigation by any federal, state or local government or quasi- governmental body, agency, board or authority or any other administrative or investigative body  (including the Office of the Inspector General of the United States Department of Health and Human  Services),which could reasonably be expected to result in a Material Adverse Effect.  (f) As of the Closing Date, there have been no Regulatory Reporting Events.   Section 3.27 Senior Indebtedness Status.  The Obligations of each Credit Party under this  Agreement and each of the other Financing Documents ranks and shall continue to rank at least senior in  priority of payment to all Debt that is contractually subordinated to the Obligations of each such Person  under this Agreement and is designated as “Senior Indebtedness” (or an equivalent term) under all  





 






63  MidCap / Viewray / Credit, Security and Guaranty Agreement               instruments and documents, now or in the future, relating to all Debt that is contractually subordinated to  the Obligations under this Agreement of each such Person.  ARTICLE 4 - AFFIRMATIVE COVENANTS  Each Credit Party agrees that:  Section 4.1 Financial Statements, Other Reports and Notices. The Credit Parties will deliver  to Agent for distribution to each Lender:   (a) as soon as available, but no later than forty-five (45) days after the last day of  each fiscal quarter (other than the last fiscal quarter of each fiscal year), a company prepared consolidated  and consolidating balance sheet, cash flow and income statement (including year-to-date results) covering  Viewray’s and its Consolidated Subsidiaries’ consolidated and consolidating operations during the  period, prepared under GAAP (subject to normal year-end adjustments and the absence of footnote  disclosures), consistently applied, setting forth in comparative form the corresponding figures as at the  end of the corresponding fiscal quarter of the previous fiscal year and the projected figures for such period  based upon the projections  required hereunder, all in reasonable detail, certified by a Responsible Officer  and in a form reasonably acceptable to Agent; provided that to the extent any of the foregoing is available  on the SEC EDGAR website, delivery to Agent will be deemed to have occurred upon notice of such  availability to Agent;   (b) upon Agent’s reasonable request, together with the financial reporting package  described in (a) above, evidence of payment and satisfaction of all payroll, withholding and similar taxes  due and owing by all Credit Parties with respect to the payroll period(s) occurring during such month;   (c) as soon as available, but no later than ninety (90) days after the last day of  Viewray’s fiscal year, audited consolidated and consolidating financial statements prepared under GAAP,  consistently applied, together with an unqualified opinion (other than a going concern qualification or  exception as to the scope of such audit based solely on a determination that any Borrower has less than  12 months of liquidity due to an upcoming maturity date of the Obligations within twelve (12) months)  on the financial statements from Deloitte & Touche LLP or another independent certified public  accounting firm acceptable to Agent in its Permitted Discretion; provided that to the extent any of the  foregoing is available on the SEC EDGAR website, delivery to Agent will be deemed to have occurred  upon notice of such availability to Agent;    (d) within ten (10) days of delivery or filing thereof, copies of all proxy statements,  financial statements and reports made available to such Credit Party’s security holders or to any holders  of Subordinated Debt and copies of all Form 10-K, 10-Q and 8-K and all registration statements filed by  such Credit Party with any stock exchange on which any securities of any Credit Party are traded and/or  the SEC; provided that to the extent any of the foregoing is available on the SEC EDGAR website,  delivery to Agent will be deemed to have occurred upon notice of such availability to Agent;   (e) a prompt, but in no event later than when the next Compliance Certificate is  required to be delivered, written report of any legal actions pending or threatened in writing against any  Credit Party or any of its Subsidiaries that could reasonably be expected to result in damages or costs to  any Credit Party or any of its Subsidiaries of Five Hundred Thousand Dollars ($500,000) or more or  otherwise could be reasonably expected to result in a Material Adverse Effect;  





 






64  MidCap / Viewray / Credit, Security and Guaranty Agreement               (f) within ten (10) Business Days of the end of each calendar month, deliver to  Agent a certificate signed by a Responsible Officer, in form and substance reasonably satisfactory to  Agent and describing in reasonable detail (a) the cash and Cash Equivalents of the Credit Parties as of  the last day of such calendar, and (b) the Net Revenue of the Credit Parties on a trailing-twelve month  basis determined as of the last day of the calendar month immediately prior such calendar month;   (g) within forty five (45) days after the start of each fiscal year, a detailed  consolidated budget and projections for the forthcoming two fiscal years, on a quarterly basis for the  current year and on an annual basis for the subsequent year, and to the extent such budget and projections  are updated prior to the delivery for the following fiscal year, such updated projections within forty five  (45) days of the date such projections are updated;   (h) promptly (but in any event within ten (10) days of any request therefor) such  readily available other budgets, sales projections, operating plans and other financial information and  information, reports or statements regarding the Credit Parties, their business and the Collateral as Agent  may from time to time reasonably request;  (i) within 45 days of the end of each fiscal quarter, deliver to Agent (i) a duly  completed Compliance Certificate signed by a Responsible Officer setting forth calculations showing (x)  compliance with the financial covenants set forth in Article 6, as applicable, and (y) the cash and Cash  Equivalents of (A) Credit Parties taken as a whole, and (B) the Restricted Foreign Subsidiaries taken as  a whole, and (ii) a Backlog Report;  (j) within twenty (20) days after the last day of each month, deliver to Agent a duly  completed Borrowing Base Certificate signed by a Responsible Officer, with aged listings of accounts  receivable and accounts payable (by invoice date);    (k) written notice to Agent promptly, but in any event within ten (10) Business Days  of a Responsible Officer of a Credit Party receiving written notice or otherwise becoming aware that:  (i) any development, testing, and/or manufacturing of any Product that is  material to the Credit Parties’ or their Subsidiaries business should cease;  (ii) the marketing or sales of a Product, which is material to the Credit Parties’  or their Subsidiaries’ business and which has been approved for marketing and sale, should cease  (or be required to cease) or such Product should be withdrawn from the marketplace;   (iii) any Governmental Authority is conducting an investigation or review  (other than routine reviews in the Ordinary Course of Business) of any Regulatory Required Permit  the loss of which could be reasonably expected to result in a Material Adverse Effect;   (iv) any Regulatory Required Permit, the loss of which could be reasonably  expected to result in a Material Adverse Effect, has been revoked or withdrawn;  (v) any Governmental Authority, including without limitation the FDA, the  Office of the Inspector General of HHS or the United States Department of Justice, has commenced  any action against a Credit Party or a Subsidiary thereof, any action to enjoin a Credit Party or a  Subsidiary thereof  from conducting their businesses at any facility owned or used by them or for  any material civil penalty, injunction, seizure or criminal action;   





 






65  MidCap / Viewray / Credit, Security and Guaranty Agreement               (vi) receipt by a Credit Party or any Subsidiary thereof, or any material contract  manufacturer for the Credit Parties or any of their Subsidiaries, from the FDA a warning letter,  Form FDA-483, “Untitled Letter,” other correspondence or notice setting forth alleged violations  of laws and regulations enforced by the FDA with regard to any material Product or the  manufacture, processing, packing, or holding thereof;   (vii) any Credit Party or any Subsidiary thereof receives any payments directly  (including through any third party payment processor) from Medicare, Medicaid, or TRICARE;  (viii) any significant failures in the manufacturing of any material Product have  occurred such that the amount of such Product successfully manufactured in accordance with all  specifications thereof and the required payments to be made to any Credit Party or any Subsidiary  therefor in any month shall decrease significantly with respect to the quantities of such Product and  payments produced in the prior month; or   (ix) any Credit Party or any Subsidiary thereof engaging in any Recalls,  Market Withdrawals, or other forms of product retrieval from the marketplace of any Products  (other than discrete batches or lots that are not material in quantity or amount and are not made in  conjunction with a larger recall) (each of the events set forth in clauses (i)-(ix) a “Regulatory  Reporting Event”);   (l) promptly after the request by any Lender, all documentation and other  information that such Lender reasonably requests in order to comply with its ongoing obligations under  applicable “know your customer” and anti-money laundering rules and regulations, including, without  limitation, the USA PATRIOT Act;   (m) promptly, but in any event within five (5) Business Days, after any Responsible  Officer of any Credit Party obtains knowledge of the occurrence of any event or change (including,  without limitation, any notice of any violation of applicable Healthcare Laws) that has resulted or would  reasonably be expected to result in, either in any case or in the aggregate, a Material Adverse Effect, a  certificate of a Responsible Officer specifying the nature and period of existence of any such event or  change, or specifying the notice given or action taken by such holder or Person and the nature of such  event or change, and what action the applicable Credit Party or Subsidiary has taken, is taking or proposes  to take with respect thereto; and   (n) Credit Parties shall promptly (and in any event within five (5) Business Days of  the occurrence thereof) provide Agent and each Lender with written notice of the occurrence of a Springing  IP Lien Event, which notice shall be accompanied by a certificate from an authorized executive officer  from each Credit Party (A) acknowledging that Springing IP Lien Event has occurred, (B) specifying the  date on which the Springing IP Lien Event occurred, and (C) acknowledging that Agent may exercise any  rights it may have under this Agreement or any other Financing Document with respect to the Springing  IP Lien Event, subject to the terms and conditions of this Agreement and the other Financing Documents.   Without limiting the foregoing, Credit Parties shall promptly (and in any event within ten (10) Business  Days of the occurrence of a Springing IP Lien Event) provide Agent a supplement to the Intellectual  Property Security Agreement certifying to and attaching true, correct and complete copies of updated  schedules to the Intellectual Property Security Agreement and certifying that all Intellectual Property  owned by each Credit Party and registered in the United States as of the date of such certification is  reflected on such schedules (other than Excluded Property).  





 






66  MidCap / Viewray / Credit, Security and Guaranty Agreement               Section 4.2 Payment and Performance of Obligations.  Each Credit Party (a) will pay and  discharge, and cause each Subsidiary to pay and discharge, on a timely basis as and when due, all of their  respective obligations and liabilities, except for such obligations and/or liabilities (i) that may be the subject  of a Permitted Contest, and (ii) the nonpayment or nondischarge of which could not reasonably be expected  to have a Material Adverse Effect or result in a Lien against any Collateral, except for Permitted Liens, (b)  without limiting anything contained in the foregoing clause (a), pay all amounts due and owing in respect  of (i) all federal Taxes (including without limitation, payroll and withholdings tax liabilities) and (ii) all  material foreign and state Taxes and other local Taxes (including without limitation, payroll and  withholdings tax liabilities), in each case, on a timely basis as and when due, and in any case prior to the  date on which any fine, penalty, interest, late charge or loss may be added thereto for nonpayment thereof,  (c) will maintain, and cause each Subsidiary to maintain, in accordance with GAAP, appropriate reserves  for the accrual of all of their respective obligations and liabilities, and (d) will not breach or permit any  Subsidiary to breach, or permit to exist any default under, the terms of any lease, commitment, contract,  instrument or obligation to which it is a party, or by which its properties or assets are bound, except for  such breaches or defaults which could not reasonably be expected to have a Material Adverse Effect.  Section 4.3 Maintenance of Existence.  Each Credit Party will preserve, renew and keep in full  force and effect and in good standing, and will cause each Subsidiary to preserve, renew and keep in full  force and effect and in good standing, (a) their respective existence and (b) their respective rights, privileges  and franchises necessary or desirable in the normal conduct of business, unless, solely in the case of this  clause (b), a failure to do so could not reasonably be expected to have a Material Adverse Effect.  Section 4.4 Maintenance of Property; Insurance.  (a) Each Credit Party will keep, and will cause each Subsidiary to keep, all property  useful and necessary in its business in good working order and condition, ordinary wear and tear excepted.   If all or any part of the Collateral useful or necessary in its business, or upon which any Borrowing Base  is calculated, becomes damaged or destroyed, each Credit Party will, and will cause each Subsidiary to,  promptly and completely repair and/or restore the affected Collateral in a good and workmanlike manner,  regardless of whether Agent agrees to disburse insurance proceeds or other sums to pay costs of the work  of repair or reconstruction.    (b) Upon completion of any Permitted Contest, Credit Parties shall, and will cause  each Subsidiary to, promptly pay the amount due, if any, and deliver to Agent proof of the completion of  the contest and payment of the amount due, if any.  (c) Each Credit Party will maintain (i) casualty insurance on all real and personal  property on an all risks basis (including the perils of flood, windstorm and quake), covering the repair  and replacement cost of all such property and coverage, business interruption and rent loss coverages  with extended period of indemnity (for the period required by Agent from time to time) and indemnity  for extra expense, in each case without application of coinsurance and with agreed amount endorsements,  (ii) general and professional liability insurance (including products/completed operations liability  coverage), and (iii) such other insurance coverage, in each case against loss or damage of the kinds  customarily insured against by Persons engaged in the same or similar business, of such types and in such  amounts as are customarily carried under similar circumstances by such other Persons; provided,  however, that, in no event shall such insurance be in amounts or with coverage less than, or with carriers  with qualifications inferior to, any of the insurance or carriers in existence as of the Closing Date (or  required to be in existence after the Closing Date under a Financing Document).  All such insurance shall  be provided by insurers having an A.M. Best policyholders rating reasonably acceptable to Agent.   





 






67  MidCap / Viewray / Credit, Security and Guaranty Agreement               (d) On or prior to the Closing Date, and at all times thereafter, each Credit Party will  cause Agent to be named as an additional insured, assignee and lender loss payee (which shall include,  as applicable, identification as mortgagee), as applicable, on each insurance policy required to be  maintained pursuant to this Section 4.4 pursuant to endorsements in form and substance acceptable to  Agent.  Credit Parties shall deliver to Agent and the Lenders (i) on the Closing Date, a certificate from  Credit Parties’ insurance broker dated such date showing the amount of coverage as of such date, and that  such policies will include effective waivers (whether under the terms of any such policy or otherwise) by  the insurer of all claims for insurance premiums against all loss payees and additional insureds and all  rights of subrogation against all loss payees and additional insureds, and that if all or any part of such  policy is canceled, terminated or expires, the insurer will forthwith give notice thereof to each additional  insured, assignee and loss payee and that no cancellation, reduction in amount or material change in  coverage thereof shall be effective until at least thirty (30) days (or ten (10) days for nonpayment of  premium) after receipt by each additional insured, assignee and loss payee of written notice thereof, (ii) on  an annual basis, and upon the request of any Lender through Agent from time to time full information as  to the insurance carried, (iii) within five (5) days of receipt of notice from any insurer, a copy of any  notice of cancellation, nonrenewal or material change in coverage from that existing on the date of this  Agreement, (iv) forthwith, notice of any cancellation or nonrenewal of coverage by any Credit Party, and  (v) at least thirty (30) days prior to expiration of any policy of insurance, evidence of renewal of such  insurance upon the terms and conditions herein required.  (e) In the event any Credit Party fails to provide Agent with evidence of the  insurance coverage required by this Agreement, Agent may purchase insurance at Credit Parties’ expense  to protect Agent’s interests in the Collateral.  This insurance may, but need not, protect such Credit Party’s  interests.  The coverage purchased by Agent may not pay any claim made by such Credit Party or any  claim that is made against such Credit Party in connection with the Collateral.  Such Credit Party may  later cancel any insurance purchased by Agent, but only after providing Agent with evidence that such  Credit Party has obtained insurance as required by this Agreement.  If Agent purchases insurance for the  Collateral, Credit Parties will be responsible for the costs of that insurance to the fullest extent provided  by law, including interest and other charges imposed by Agent in connection with the placement of the  insurance, until the effective date of the cancellation or expiration of the insurance.  The costs of the  insurance may be added to the Obligations.  The costs of the insurance may be more than the cost of  insurance such Credit Party is able to obtain on its own.    Section 4.5 Compliance with Laws and Material Contracts.  Each Credit Party will comply,  and cause each Subsidiary to comply, with the requirements of all applicable Laws (including all Healthcare  Laws) and Material Contracts, except to the extent that failure to so comply could not reasonably be  expected to (a) have a Material Adverse Effect, or (b) result in any Lien (other than a Permitted Lien) upon  either (i) a material portion of the assets of any such Person in favor of any Governmental Authority, or  (ii) any Collateral which is part of the Borrowing Base (other than, in each case, any Permitted Lien).  Section 4.6 Inspection of Property, Books and Records.  Each Credit Party will keep, and will  cause each Subsidiary to keep, proper books of record substantially in accordance with GAAP in which  full, true and correct entries shall be made of all dealings and transactions in relation to its business and  activities; and will permit, and will cause each Subsidiary to permit, during normal business hours, at the  sole cost of the applicable Credit Party or any applicable Subsidiary, representatives of Agent to visit and  inspect any of their respective properties, to examine and make abstracts or copies from any of their  respective books and records, to conduct a collateral audit and analysis of their respective operations and  the Collateral, to evaluate and make physical verifications and appraisals of the Inventory and other  Collateral in any manner and through any medium that Agent considers advisable, to verify the amount and  age of the Accounts, the identity and credit of the respective Account Debtors, to review the billing practices  





 






68  MidCap / Viewray / Credit, Security and Guaranty Agreement               of Credit Parties and to discuss their respective affairs, finances and accounts with their respective officers,  employees and independent public accountants as often as may reasonably be desired.  In the absence of an  Event of Default which is continuing (i) such inspections and audits shall be conducted at Credit Parties’  expense no more often than one (1) time every twelve (12) months, and (ii) Agent exercising any rights  pursuant to this Section 4.6 shall give the applicable Credit Party or any applicable Subsidiary commercially  reasonable prior notice of such exercise. No notice shall be required during the existence and continuance  of any Default or Event of Default or any time during which Agent reasonably believed a Default or Event  of Default exists.   Section 4.7 Use of Proceeds.  Borrowers shall use the proceeds of the Term Loan Tranche 1  borrowing solely for (a) payment of transaction fees incurred in connection with the Financing Documents,  (b) the payment in full on the Closing Date of certain existing Debt and (c) for working capital needs of  Borrowers and their Subsidiaries.   Borrowers shall use the proceeds of any Term Loan Tranche 2 borrowing  solely for (a) transaction fees incurred in connection with the Financing Documents, and (b) working capital  needs of the Borrowers and their Subsidiaries.  Borrowers shall use the proceeds of Revolving Loans solely  for (a) transaction fees incurred in connection with the Financing Documents and the refinancing on the  Closing Date of Debt, and (b) for working capital needs of Borrowers and their Subsidiaries.  No portion  of the proceeds of the Loans will be used for family, personal, agricultural or household use.  No portion  of the proceeds of the Loans will be used, whether directly or indirectly, and whether immediately,  incidentally or ultimately, for purchasing or carrying Margin Stock or for any other purpose that entails a  violation of, or that is inconsistent with, the provisions of the regulations of the Board of Governors of the  Federal Reserve System, including Regulation T, U, or X of the Federal Reserve Board.    Section 4.8 [Reserved].    Section 4.9 Notices of Material Contracts, Litigation and Defaults.    (a) Credit Parties shall promptly (but in any event within five (5) Business Days)  provide written notice to Agent after any Credit Party or Subsidiary receives or delivers any notice of  termination or default or similar notice in connection with any Material Contract, and (ii) Credit Parties  shall provide, together with the next quarterly Compliance Certificate required to be delivered under this  Agreement, written notice to Agent after any Credit Party or Subsidiary (1) executes and delivers any  material amendment, consent, waiver or other modification to any Material Contract or (2) enters into  new Material Contract and shall, upon request of Agent, promptly provide Agent a copy thereof.  (b) Credit Parties shall promptly (but in any event within five (5) Business Days)  provide written notice to Agent (i) of any litigation or governmental proceedings pending or threatened  (in writing) against Borrowers or other Credit Party, in each case, which, if adversely determined, would  reasonably be expected to have a Material Adverse Effect with respect to Borrowers or any other Credit  Party or which in any manner calls into question the validity or enforceability of any Financing  Document, (ii) upon any Credit Party becoming aware of the existence of any Default or Event of Default,  (iii) of any strikes or other labor disputes pending or, to any Credit Party’s knowledge, threatened against  any Credit Party, in each case, that could reasonably be expected to have a Material Adverse Effect, (iv) if  there is any infringement or claim of infringement by any other Person with respect to any Intellectual  Property rights of any Credit Party that could reasonably be expected to have a Material Adverse Effect,  or if there is any claim by any other Person that any Credit Party in the conduct of its business is infringing  on the Intellectual Property rights of others that could reasonably be expected to have a Material Adverse  Effect, and (v) of all returns, recoveries, disputes and claims that would reasonably be expected to result  in liability of more than $500,000 in the aggregate. Credit Parties represent and warrant that Schedule 4.9  





 






69  MidCap / Viewray / Credit, Security and Guaranty Agreement               sets forth a complete list of all matters existing as of the Closing Date for which notice is required under  this Section 4.9(b).  (c) Each Credit Party shall provide such further information (including copies of  such documentation) as Agent or any Lender shall reasonably request with respect to any of the events  or notices described in clauses (a) and (b) above and any notice given in respect of a Regulatory Reporting  Event.  From the date hereof and continuing through the termination of this Agreement, each Credit Party  shall make available to Agent and each Lender, without expense to Agent or any Lender, each Credit  Party’s officers, employees and agents and books, to the extent that Agent or any Lender may deem them  reasonably necessary to prosecute or defend any third-party suit or proceeding instituted by or against  Agent or any Lender with respect to any Collateral or relating to a Credit Party.  Section 4.10 Hazardous Materials; Remediation.  (a) If any release or disposal of Hazardous Materials shall occur or shall have  occurred on any real property or any other assets of any Credit Party, such Credit Party will cause, or  direct the applicable Credit Party to cause, the prompt containment and removal of such Hazardous  Materials and the remediation of such real property or other assets as is necessary to comply with all  Environmental Laws.  Without limiting the generality of the foregoing, each Credit Party shall, and shall  cause each other Credit Party to, comply with each Environmental Law requiring the performance at any  real property by any Credit Party of activities in response to the release or threatened release of a  Hazardous Material.  (b) Credit Parties will provide Agent within thirty (30) days after written demand  therefor with a bond, letter of credit or similar financial assurance evidencing to the reasonable  satisfaction of Agent that sufficient funds are available to pay the cost of removing, treating and disposing  of any Hazardous Materials or Hazardous Materials Contamination as required by Environmental Law  and discharging any assessment which may be established on any property as a result thereof, such  demand to be made, if at all, upon Agent’s reasonable business determination that the failure to remove,  treat or dispose of any such Hazardous Materials or Hazardous Materials Contamination, or the failure to  discharge any such assessment could reasonably be expected to have a Material Adverse Effect.  Section 4.11 Further Assurances; Joinder.  (a) Each Credit Party will, and will cause each Subsidiary to, at its own cost and  expense, promptly and duly take, execute, acknowledge and deliver all such further acts, documents and  assurances as may from time to time be necessary or as Agent or the Required Lenders may from time to  time reasonably request in order to carry out the intent and purposes of the Financing Documents and the  transactions contemplated thereby, including all such actions to (i) establish, create, preserve, protect and  perfect a first priority Lien (other than in respect of Excluded Perfection Assets and subject only to  Permitted Liens) in favor of Agent for itself and for the benefit of the Lenders on the Collateral (including  Collateral acquired after the date hereof), and (ii) cause all Subsidiaries of Credit Parties (other than  Restricted Foreign Subsidiaries) to be jointly and severally obligated with the other Credit Parties under  all covenants and obligations under this Agreement, including the obligation to repay the Obligations.    (b) Upon receipt of an affidavit of an authorized representative of Agent or a Lender  as to the loss, theft, destruction or mutilation of any Note or any other Financing Document which is not  of public record, and, in the case of any such mutilation, upon surrender and cancellation of such Note or  other applicable Financing Document, Borrowers will issue, in lieu thereof, a replacement Note or other  





 






70  MidCap / Viewray / Credit, Security and Guaranty Agreement               applicable Financing Document, dated the date of such lost, stolen, destroyed or mutilated Note or other  Financing Document in the same principal amount thereof and otherwise of like tenor.  (c) Credit Parties shall timely and fully pay and perform its obligations under all  material leases and other agreements with respect to each leased location where any Collateral is or may  be located.   (d) Credit Parties shall provide Agent with at least thirty (30) days (or such shorter  period as Agent may accept in its sole discretion) prior written notice of its intention to create (or to the  extent permitted under this Agreement, acquire) a new Subsidiary.  Upon the formation (or to the extent  permitted under this Agreement, acquisition) of a new Subsidiary, Credit Parties shall  (within thirty (30)  days): (i) pledge, have pledged or cause or have caused to be pledged to Agent pursuant to a pledge  agreement in form and substance satisfactory to Agent, all of the outstanding Equity Interests of such  new Subsidiary owned directly or indirectly by any Credit Party (except to the extent constituting  Excluded Property), along with undated stock or equivalent powers for such certificates, executed in  blank; (ii) cause the new Subsidiary (other than Restricted Foreign Subsidiaries) to take such other actions  (including entering into or joining any Security Documents) as are necessary or advisable in the  reasonable opinion of Agent in order to grant Agent, acting on behalf of the Lenders, a first priority Lien  (subject to Permitted Liens which have priority by operation of Law) on all real and personal property (in  the case of the perfection of the Liens granted subject to the Excluded Perfection Assets) of such  Subsidiary in existence as of such date and in all after acquired property (in each case, other than Excluded  Property), which first priority Liens are required to be granted pursuant to this Agreement; (iii) cause  such new Subsidiary (other than Restricted Foreign Subsidiaries) to either (at the election of Agent)  become a Borrower hereunder with joint and several liability for all obligations of Borrowers hereunder  and under the other Financing Documents pursuant to a joinder agreement or other similar agreement in  form and substance satisfactory to Agent or to become a Guarantor of the obligations of Borrowers  hereunder and under the other Financing Documents pursuant to a guaranty and suretyship agreement in  form and substance satisfactory to Agent; and (iv) cause the new Subsidiary (other than Restricted  Foreign Subsidiaries) to deliver certified copies of such Subsidiary’s certificate or articles of  incorporation, together with good standing certificates, by-laws (or other operating agreement or  governing documents), resolutions of the Board of Directors or other governing body, approving and  authorizing the execution and delivery of the Security Documents, incumbency certificates and to execute  and/or deliver such other documents and legal opinions or to take such other actions as may be requested  by Agent, in each case, in form and substance satisfactory to Agent (the requirements set forth in clauses  (i)-(iv), collectively, the “Joinder Requirements”).  (e) If, at the end of any Defined Period ending on the last day of a fiscal quarter  (commencing with the fiscal quarter ending December 31, 2022), (i) revenue (as determined in  accordance GAAP) attributable solely to the Borrowers and Guarantors (and not, for the avoidance of  doubt, to any Restricted Foreign Subsidiary) for such Defined Period is less than ninety percent (90%) of  the aggregate revenue (as determined in accordance with GAAP) of Credit Parties and their Consolidated  Subsidiaries for such Defined Period, then Borrowers shall promptly (and in any event with thirty (30)  days of the date on which financial statements were delivered in respect of such Defined Period pursuant  to Section 4.1(a)) cause certain Restricted Foreign Subsidiaries designated by Agent, in its reasonable  discretion and in consultation with Borrower Representative, to become Credit Parties in accordance with  the Joinder Requirements (as though such designated Subsidiaries were new Subsidiaries and no longer  Restricted Foreign Subsidiaries) pursuant to reasonable documentation (including any foreign law  governed documentation as may be necessary or reasonably desirable) such that, following such joinder,  the revenue (as determined in accordance with GAAP) attributable solely to the Borrowers and  Guarantors for such Defined Period is greater than or equal to ninety percent (90%) of the aggregate  





 






71  MidCap / Viewray / Credit, Security and Guaranty Agreement               revenue (as determined in accordance with GAAP) of Credit Parties and their Consolidated Subsidiaries  for such Defined Period, (ii) total assets (as determined in accordance GAAP) attributable solely to the  Borrowers and Guarantors (and not, for the avoidance of doubt, to any Restricted Foreign Subsidiary) as  of the last day of such Defined Period is less than ninety percent (90%) of the aggregate total assets (as  determined in accordance with GAAP) of Credit Parties and their Consolidated Subsidiaries as of the last  day of such Defined Period, then Borrowers shall promptly (and in any event with thirty (30) days of the  date on which financial statements were delivered in respect of such Defined Period pursuant to Section  4.1(a)) cause certain Restricted Foreign Subsidiaries designated by Agent, in its reasonable discretion and  in consultation with Borrower Representative, to become Credit Parties in accordance with the Joinder  Requirements (as though such designated Subsidiaries were new Subsidiaries and no longer Restricted  Foreign Subsidiaries) pursuant to reasonable documentation (including any foreign law governed  documentation as may be necessary or reasonably desirable) such that, following such joinder, the total  assets (as determined in accordance with GAAP) attributable solely to the Borrowers and Guarantors as  of the last day of such Defined Period is greater than or equal to ninety percent (90%) of the aggregate  total assets (as determined in accordance with GAAP) of Credit Parties and their Consolidated  Subsidiaries as of the last day of such Defined Period or (iii) (x) revenue (as determined in accordance  with GAAP) attributable to any Restricted Foreign Subsidiary individually for such Defined Period is  greater than five percent (5%) of aggregate revenue (as determined in accordance with GAAP) of Credit  Parties and their Consolidated Subsidiaries for such Defined Period or (y) the total assets (as determined  in accordance with GAAP) of any Restricted Subsidiary individually as of the last day of such Defined  Period is greater than five percent (5%) of the consolidated total assets (as determined in accordance with  GAAP) of the Credit Parties and their Consolidated Subsidiaries as of the last day of such Defined Period,  then Borrowers shall promptly (and in any event with thirty (30) days of the date on which financial  statements were delivered in respect of such Defined Period pursuant to Section 4.1(a)) cause such  Restricted Foreign Subsidiaries (as consented to by Agent), to become Credit Parties in accordance with  the Joinder Requirements (as though such designated Subsidiaries were new Subsidiaries and no longer  Restricted Foreign Subsidiaries) pursuant to reasonable documentation (including any foreign law  governed documentation as may be necessary or reasonably desirable); provided that with respect to any  Restricted Foreign Subsidiary, in the event that Borrower Representative provides Agent with evidence  reasonably satisfactory to Agent that (A) the grant of a continuing pledge and security interest in and to  the assets of such Restricted Foreign Subsidiary, (B) the guaranty of the Obligations of the Borrowers by  such Restricted Foreign Subsidiary, and/or (C) the provision of a joinder to become a Borrower under  this Agreement by such Restricted Foreign Subsidiary, would reasonably be expected to have a material  adverse tax consequence on the Borrower, then such Restricted Foreign Subsidiary shall not at such time  be required to become a Credit Party. Following any such joinder, such designated foreign Subsidiaries  and/or U.S. Holdcos, as applicable, shall no longer be Restricted Foreign Subsidiaries and shall be Credit  Parties for all purposes hereunder and under the other Financing Documents and shall not be re- designated as Restricted Foreign Subsidiaries without Required Lenders’ prior written consent (which  may be given or withheld in their sole discretion).  So long as Borrower maintains Credit Party  Unrestricted Cash of at least $100,000,000, Borrower shall be permitted to create any such Restricted  Foreign Subsidiary upon five (5) Business Days prior written notice to Agent.  Section 4.12 Reserved.    Section 4.13 Power of Attorney.  Each of the authorized representatives of Agent is hereby  irrevocably made, constituted and appointed the true and lawful attorney for Credit Parties (without  requiring any of them to act as such) with full power of substitution, exercisable only upon the occurrence  and during the continuance of an Event of Default, to do the following:  (a) endorse the name of Credit  Parties upon any and all checks, drafts, money orders, and other instruments for the payment of money that  are payable to Credit Parties and constitute collections on Credit Parties’ Accounts; (b) so long as Agent  





 






72  MidCap / Viewray / Credit, Security and Guaranty Agreement               has provided not less than three (3) Business Days’ prior written notice to any Credit Party to perform the  same and such Credit Party has failed to take such action, execute in the name of Credit Parties any  schedules, assignments, instruments, documents, and statements that Credit Parties are obligated to give  Agent under this Agreement; (c) take any action Credit Parties are required to take under this Agreement;  (d) so long as Agent has provided not less than three (3) Business Days’ prior written notice to any Credit  Party to perform the same and such Credit Party has failed to take such action, do such other and further  acts and deeds in the name of Credit Parties that Agent may deem necessary or desirable to enforce any  Account or other Collateral or perfect Agent’s security interest or Lien in any Collateral; and (e) do such  other and further acts and deeds in the name of Credit Parties that Agent may deem necessary or desirable  to enforce its rights with regard to any Account or other Collateral.  This power of attorney shall be  irrevocable and coupled with an interest.  Section 4.14 Borrowing Base Collateral Administration.   (a) A copy of all data and other information relating to Accounts shall at all times  be kept by Credit Parties, at their respective principal offices and shall not fail to be available at such  principal offices without obtaining the prior written consent of Agent, which consent shall not be  unreasonably withheld, conditioned or delayed.  (b) Borrowers shall provide prompt written notice to each Person who either is  currently an Account Debtor or becomes an Account Debtor at any time following the date of this  Agreement that directs each Account Debtor to make payments into the Lockbox, and hereby authorizes  Agent, upon Borrowers’ failure to send such notices within ten (10) days after the date of this Agreement  (or ten (10) days after the Person becomes an Account Debtor), to send any and all similar notices to such  Person.  Agent reserves the right to notify Account Debtors that Agent has been granted a Lien upon all  Accounts.  (c) Borrowers will conduct a physical count of the Inventory at least twice per year  and at such other times as Agent requests, and Borrowers shall provide to Agent a written accounting of  such physical count in form and substance satisfactory to Agent.  Each Borrower will use commercially  reasonable efforts to at all times keep its Inventory in good and marketable condition.  In addition to the  foregoing, from time to time, Agent may require Borrowers to obtain and deliver to Agent appraisal  reports in form and substance and from appraisers reasonably satisfactory to Agent stating the then current  fair market values of all or any portion of Inventory owned by each Borrower or any Subsidiaries;  provided that if no Event of Default has occurred and is continuing, such appraisal of Inventory shall be  conducted not more often than once a year.   Section 4.15 Schedule Updates.  Borrower shall, in the event of any information in the Schedule  3.19, Schedule 5.14, Schedule 9.2(b) or Schedule 9.2(d) becoming outdated, inaccurate, incomplete or  misleading, deliver to Agent, together with the next quarterly Compliance Certificate required to be  delivered under this Agreement after such event a proposed update to such Schedule correcting all outdated,  inaccurate, incomplete or misleading information.  Section 4.16 Intellectual Property and Licensing.    (a) Together with each Compliance Certificate required to be delivered pursuant to  Section 4.1(i) with respect to the last month of a fiscal quarter to the extent (i) any Credit Party or Subsidiary  acquires and/or develops any new Registered Intellectual Property, (ii) any Credit Party or Subsidiary enters  into or becomes bound by any additional material in-bound license or sublicense agreement, any additional  exclusive out-bound license or sublicense agreement or other material agreement with respect to rights in  





 






73  MidCap / Viewray / Credit, Security and Guaranty Agreement               Intellectual Property (other than over-the-counter software, software that is commercially available to the  public and open source licenses), or (iii) there occurs any other material change in any Credit Party’s or  Subsidiary’s Registered Intellectual Property, material in-bound licenses or sublicenses or exclusive out- bound licenses or sublicenses from that listed on Schedule 3.19 together with such Compliance Certificate,  deliver to Agent an updated Schedule 3.19 reflecting such updated information.  With respect to any updates  to Schedule 3.19 involving exclusive out-bound licenses or sublicenses, such licenses shall be consistent  with the definitions of and limitations herein pertaining to Permitted Licenses.      (b) On the Closing Date, each Credit Party will execute and deliver to Agent the  Intellectual Property Security Agreement.  The Intellectual Property Security Agreement shall be held in  escrow by Agent, and shall not be in force and effect, unless and until the occurrence of the Springing IP  Lien Event, at which time (i) the Intellectual Property Security Agreement shall immediately and  automatically become effective without any further action or consent by any Credit Party and (ii) Agent  shall be automatically authorized to file the Intellectual Property Security Agreement (including any  updated schedules thereto delivered pursuant to Section 4.16(h)) with the United States Patent and  Trademark Office and/or United States Copyright Office, as applicable.  (c) Upon the occurrence of a Springing IP Lien Event and continuing at all times  thereafter (whether or not the Springing IP Lien Event continues), then automatically and without notice or  any further action by Agent, any Lender or any Credit Party (i) Agent shall be authorized to file UCC  financing statements, financing statement amendments and security agreements (including any Intellectual  Property Security Agreement) necessary or desirable to perfect such security interest in the Intellectual  Property (other than Excluded Property and any security interest that is not required to be perfected under  the terms of this Agreement), and (ii) each Credit Party shall execute such other agreements and take such  other actions as Agent may reasonably request to establish, perfect or protect Agent’s security interest in  the Intellectual Property of Credit Parties.  (d) Following the occurrence of an Springing IP Lien Event, if Credit Parties obtain  any Registered Intellectual Property, Credit Parties  shall promptly (and in any event within fifteen (15)  days of obtaining same) notify Agent and promptly execute such documents and provide such other  information (including, without limitation, copies of applications) and take such other actions as Agent  shall reasonably request in its good faith business judgment to perfect and maintain a first priority perfected  security interest (subject to Permitted Liens) in favor of Agent, for the ratable benefit of Lenders, in such  Registered Intellectual Property.    (e) Credit Parties shall take such commercially reasonable steps as Agent reasonably  requests to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for (x) all  Material Contracts to be deemed “Collateral” and for Agent to have a security interest in it that might  otherwise be restricted or prohibited by Law or by the terms of any such Material Contract, whether now  existing or entered into in the future, and (y) Agent to have the ability in the event of a liquidation of any  Collateral to dispose of such Collateral in accordance with Agent’s rights and remedies under this  Agreement and the other Financing Documents.  (f) Credit Parties and each Subsidiary thereof shall own, or be licensed to use or  otherwise have the right to use, all Material Intangible Assets, subject to Permitted Liens.  Credit Parties  shall cause all Registered Intellectual Property to be duly and properly registered, filed or issued in the  appropriate office and jurisdictions for such registrations, filings or issuances, except where the failure to  do so would not reasonably be expected to result in a Material Adverse Effect.  Credit Parties and their  Subsidiaries shall at all times conduct its business without material infringement or material claim of  infringement of any valid Intellectual Property rights of others.  Credit Parties shall, and shall cause their  





 






74  MidCap / Viewray / Credit, Security and Guaranty Agreement               Subsidiaries to, (i) protect, defend and maintain the validity and enforceability of its Material Intangible  Assets (ii) promptly advise Agent in writing of material infringements of its Material Intangible Assets, or  of a material claim of infringement by Credit Parties on the Intellectual Property rights of others; and (iii)  not allow any of Credit Parties’ Material Intangible Assets to be abandoned, invalidated, forfeited or  dedicated to the public or to become unenforceable.  Credit Parties shall not become a party to, nor become  bound by, any material license or other agreement with respect to which any Credit Party is the licensor or  licensee (other than in-bound licenses of over-the-counter software and other software that is commercially  available to the public and open source licenses) that prohibits or otherwise restricts Credit Party from  granting a security interest in Credit Party’s interest in such license or agreement or other property.   Section 4.17 Regulatory Covenants.    (a) Credit Parties shall have, and shall ensure that it and each of its Subsidiaries has,  each necessary Permit and other material rights from, and have made all necessary declarations and filings  with, all applicable Governmental Authorities, all self-regulatory authorities and all courts and other  tribunals necessary to engage in all material respects in the ownership, management and operation of the  business or the assets of any Credit Party and Subsidiaries thereof and Credit Parties shall take, and cause  each of their Subsidiaries to take, such reasonable actions to ensure that no Governmental Authority has  taken action to limit, suspend or revoke any such Permit.  Credit Parties shall ensure, and cause each of  their Subsidiaries to ensure, that all such necessary Permits are valid and in full force and effect and Credit  Parties and their Subsidiaries are in material compliance with the terms and conditions of all Permits, except  where failure to do so would not reasonably be expected to have a Material Adverse Effect.  (b) In connection with the development, testing, manufacture, marketing or sale of  each and any Product by any Credit Party, each Credit Party shall have obtained and comply in all respects  with all Regulatory Required Permits at all times issued or required to be issued by any Governmental  Authority, specifically including the FDA, with respect to such development, testing, manufacture,  marketing or sales of such Product by such Credit Party as such activities are at any such time being  conducted by such Credit Party, except where failure to do so would not reasonably be expected to have a  Material Adverse Effect.  (c) Except where the failure to do so would not reasonably be expected to result in a  Material Adverse Effect, Credit Parties will, and will cause their Subsidiaries to, timely file or caused to be  timely filed (after giving effect to any extension duly obtained), all material notifications, reports,  submissions, material Permit renewals and reports required by applicable Healthcare Laws (which reports  will be materially accurate and complete in all material respects and not misleading in any material respect  and shall not remain open or unsettled).   ARTICLE 5 - NEGATIVE COVENANTS  Each Credit Party agrees that:  Section 5.1 Debt; Contingent Obligations.    (a) No Credit Party will, or will permit any Subsidiary to, directly or indirectly,  create, incur, assume, guarantee or otherwise become or remain directly or indirectly liable with respect  to, any Debt, except for Permitted Debt.    





 






75  MidCap / Viewray / Credit, Security and Guaranty Agreement               (b) No Credit Party will, or will permit any Subsidiary to, directly or indirectly,  create, assume, incur or suffer to exist any Contingent Obligations, except for Permitted Contingent  Obligations.  (c) No Credit Party will, or will permit any Subsidiary to, directly or indirectly,  purchase, redeem, defease or prepay any principal of, premium, if any, interest or other amount payable  in respect of any Debt prior to its scheduled date for payment (except (i) with respect to the Obligations  permitted under this Agreement, (ii) for Capital Lease obligations and (iii) for Subordinated Debt solely  to the extent permitted by Section 5.5).  Section 5.2 Liens.  No Credit Party will, or will permit any Subsidiary to, directly or indirectly,  create, assume or suffer to exist any Lien on any asset now owned or hereafter acquired by it, except for  Permitted Liens.  Section 5.3 Distributions.  No Credit Party will, or will permit any Subsidiary to, directly or  indirectly, declare, order, pay, make or set apart any sum for any Distribution, except for Permitted  Distributions.  Section 5.4 Restrictive Agreements.  No Credit Party will, or will permit any Subsidiary to,  directly or indirectly (a) enter into or assume any agreement (other than the Financing Documents and any  agreements for purchase money debt and Capital Leases permitted under clause (c) of the definition of  Permitted Debt) prohibiting the creation or assumption of any Lien upon its properties or assets, whether  now owned or hereafter acquired, or (b) create or otherwise cause or suffer to exist or become effective any  consensual encumbrance or restriction of any kind (except as provided by the Financing Documents) on  the ability of any Subsidiary to:  (i) pay or make Distributions to any Credit Party or any Subsidiary; (ii) pay  any Debt owed to any Credit Party or any Subsidiary; (iii) make loans or advances to any Credit Party or  any Subsidiary; or (iv) transfer any of its property or assets to any Credit Party or any Subsidiary, in each  case under this Section 5.4 other than reasonable and customary anti-assignment provisions contained in  licenses, contracts and other agreements so long as such anti-assignment provisions do not cause such  licenses, contracts or other agreements to constitute Excluded Property.  Section 5.5 Payments and Modifications of Subordinated Debt.  No Credit Party will, or will  permit any Subsidiary to, directly or indirectly (a) declare, pay, make or set aside any amount for payment  in respect of Subordinated Debt, except for payments made in full compliance with and expressly permitted  under the Subordination Agreement, (b) amend or otherwise modify the terms of any Subordinated Debt,  except for amendments or modifications made in full compliance with the Subordination Agreement.    Section 5.6 Consolidations, Mergers and Sales of Assets; Change in Control.  No Credit Party  will, or will permit any Subsidiary to, directly or indirectly:  (a) consolidate or merge or amalgamate with or into any other Person other than (i)  consolidations or mergers among Borrowers so long as in any consolidation or merger involving Viewray,  Viewray is the surviving entity, (ii) consolidations or mergers among a Guarantor and a Borrower so long  as the Borrower is the surviving entity, (iii) consolidations or mergers among Guarantors, and (iv)  consolidations or mergers among Subsidiaries that are not Credit Parties,; or  (b) make or consummate any Asset Dispositions other than Permitted Asset  Dispositions.    





 






76  MidCap / Viewray / Credit, Security and Guaranty Agreement               Section 5.7 Purchase of Assets, Investments.  No Credit Party will, or will permit any  Subsidiary to, directly or indirectly:   (a) acquire, make, own, hold, or otherwise consummate any Investment (including  for the avoidance of doubt, any Acquisition) other than Permitted Investments, or enter into any  agreement to acquire, make, own or hold any Investment other than Permitted Investments;   (b) engage in or establish any joint venture with any other Person; or   (c) without limiting the foregoing, no Credit Party shall, nor will any Credit Party  permit any Subsidiary to, purchase or carry Margin Stock.    Section 5.8 Transactions with Affiliates.  No Credit Party will, or will permit any Subsidiary  to, directly or indirectly, enter into or permit to exist any transaction (including the purchase, sale, lease or  exchange of any property or the rendering of any service) with any Affiliate of any Credit Party or any  Subsidiary thereof, except for (a) transaction disclosed on Schedule 5.8 on the Closing Date, (b) transactions  that are in the Ordinary Course of Business upon fair and reasonable terms, and, in each case, which contain  terms that are no less favorable to the applicable Credit Party or any Subsidiary, as the case may be, than  those which might be obtained from a third party not an Affiliate of any Credit Party and which are disclosed  to Agent in writing prior to the parties consummating such transaction, (c) transactions among Credit Parties  that are permitted by this Agreement, (d) transactions constituting (i) issuances of Subordinated Debt to  investors and (ii) issuance of other equity securities, in each case, not otherwise in contravention of this  Agreement, and (e) reasonable and customary director, officer and employee compensation (including  bonuses) and other benefits (including retirement, health, stock option and other benefit plans and  indemnification arrangements approved by the relevant board of directors, board managers or equivalent  corporate body in the Ordinary Course of Business).  Section 5.9 Modification of Organizational Documents.  No Credit Party will, or will permit  any Subsidiary to, directly or indirectly, amend or otherwise modify any Organizational Documents of such  Person, except for Permitted Modifications.  Section 5.10 Modification of Certain Agreements.  No Credit Party will, or will permit any  Subsidiary to, directly or indirectly, amend or otherwise modify any Material Contract, which amendment  or modification in any case: (a) is contrary to the terms of this Agreement or any other Financing Document;  or (b) would reasonably be expected to be materially adverse to the rights, interests or privileges of Agent,  Term Loan Servicer or the Lenders or their ability to enforce the same.   Section 5.11 Conduct of Business.  No Credit Party will, or will permit any Subsidiary to,  directly or indirectly, engage in any line of business other than those businesses engaged in on the Closing  Date and businesses reasonably related or incidental thereto.  No Credit Party will, or will permit any  Subsidiary to, other than in the Ordinary Course of Business, change its normal billing payment and  reimbursement policies and procedures with respect to its Accounts in any material respect (including,  without limitation, the amount and timing of finance charges, fees and write-offs).  Section 5.12 [Reserved].    Section 5.13 Limitation on Sale and Leaseback Transactions.  No Credit Party will, or will  permit any Subsidiary to, directly or indirectly, enter into any arrangement with any Person whereby, in a  substantially contemporaneous transaction, any Credit Party or any Subsidiaries sells or transfers all or  





 






77  MidCap / Viewray / Credit, Security and Guaranty Agreement               substantially all of its right, title and interest in an asset and, in connection therewith, acquires or leases  back the right to use such asset.  Section 5.14 Deposit Accounts and Securities Accounts; Payroll and Benefits Accounts.    (a) No Credit Party will, directly or indirectly, establish any new Deposit Account  or Securities Account (other than an Excluded Account) unless such Credit Party and the bank, financial  institution or securities intermediary at which the account is to be opened enter into a Deposit Account  Control Agreement or Securities Account Control Agreement prior to or concurrently with the  establishment of such Deposit Account or Securities Account.  Without limiting the foregoing, Credit  Parties shall ensure that each Deposit Account or Securities Account of a Credit Party (other than  Excluded Accounts) is subject to a Deposit Account Control Agreement or Securities Account Control  Agreement, as applicable.    (b) Credit Parties represent and warrant that Schedule 5.14 (as updated by the  Compliance Certificate delivered to Agent from time to time after the Closing Date) lists all of the Deposit  Accounts and Securities Accounts of each Credit Party as of the Closing Date and as of the date on which  each Compliance Certificate is delivered.  The provisions of this Section requiring Deposit Account  Control Agreements shall not apply to Excluded Accounts.   Section 5.15 Compliance with Anti-Terrorism Laws.  Agent hereby notifies Credit Parties  that  pursuant to the requirements of Anti-Terrorism Laws, and Agent’s policies and practices, Agent is required  to obtain, verify and record certain information and documentation that identifies Credit Parties  and their  principals, which information includes the name and address of each Credit Party and its principals and  such other information that will allow Agent to identify such party in accordance with Anti-Terrorism Laws.   No Credit Party  will, or will permit any Subsidiary to, directly or indirectly, knowingly enter into any  contracts or agreements or otherwise engage in transactions directly or indirectly with or related to any  Blocked Person or any Person listed on the OFAC Lists or any Sanctioned Country.  Each Credit Party  shall immediately notify Agent if such Credit Party has knowledge that any Borrower, any additional Credit  Party or any of their respective Affiliates or agents acting or benefiting in any capacity in connection with  the transactions contemplated by this Agreement is or becomes a Blocked Person or (a) is convicted on, (b)  enters into a settlement agreement with a U.S. government agency, (c) pleads nolo contendere to, (d) is  indicted on, or (e) is arraigned and held over on charges involving money laundering or predicate crimes to  money laundering, Anti-Terrorism Laws or export control laws.  No Credit Party will, or will permit any  Subsidiary to, directly or indirectly, (i) conduct any business or engage in any transaction or dealing directly  or indirectly with or related to any Blocked Person or Sanctioned Country, including, without limitation,  the making or receiving of any contribution of funds, goods or services to or for the benefit of any Blocked  Person or Sanctioned Country, (ii) deal in, or otherwise engage in any transaction relating to, any property  or interests in property blocked pursuant to Executive Order No. 13224, any similar executive order or other  Anti-Terrorism Law, or (iii) engage in or conspire to engage in any transaction that evades or avoids, or  has the purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in Executive  Order No. 13224 or other Anti-Terrorism Law.  Section 5.16 Change in Accounting.  No Credit Party shall, and no Credit Party shall suffer or  permit any of its Subsidiaries to, (i) make any significant change in accounting treatment or reporting  practices, except as required by GAAP or required to be GAAP compliant or (ii) change the fiscal year or  method for determining fiscal quarters of any Credit Party or of any Consolidated Subsidiary.  Section 5.17 Investment Company Act.  No Credit Party shall, nor shall it permit any Subsidiary  to, directly or indirectly, engage in any business, enter into any transaction, use any securities or take any  





 






78  MidCap / Viewray / Credit, Security and Guaranty Agreement               other action or permit any of its Subsidiaries to do any of the foregoing, that would cause it or any of its  Subsidiaries to become subject to the registration requirements of the Investment Company Act, by virtue  of being an “investment company” or a company “controlled” by an “investment company” not entitled to  an exemption within the meaning of the Investment Company Act.  Section 5.18 Agreements Regarding Receivables.  No Credit Party may backdate, postdate or  redate any of its invoices.  No Credit Party may make any sales on extended dating or credit terms with  respect to Eligible Accounts beyond that customary in such Credit Party’s industry and consented to in  advance by Agent.  In addition to the Borrowing Base Certificate to be delivered in accordance with this  Agreement, Borrower Representative shall notify Agent promptly upon any Borrower’s learning thereof,  in the event any Eligible Account becomes ineligible for any reason, other than the aging of such Account,  and of the reasons for such ineligibility.  Borrower Representative shall also notify Agent promptly of all  material disputes and claims with respect to the Accounts of any Borrower, and such Borrower will settle  or adjust such material disputes and claims at no expense to Agent; provided, however, no Borrower may,  without Agent’s consent, grant (a) any discount, credit or allowance in respect of its Accounts (i) which is  outside the ordinary course of business or (ii) which discount, credit or allowance exceeds an amount equal  to $500,000 in the aggregate with respect to any individual Account of (b) any materially adverse extension,  compromise or settlement to any customer or account debtor with respect to any then Eligible Account.   Nothing permitted by this Section 5.16, however, may be construed to alter in any the criteria for Eligible  Accounts, or Eligible Inventory provided in Section 1.1.  Section 5.19 Restricted Foreign Subsidiaries.    (a) No Credit Party shall permit the total amount of cash and Cash Equivalents held  by Restricted Foreign Subsidiaries (taken as a whole) to exceed $100,000 at any time, with amounts in  excess of $100,000 transferred to an account of Borrowers maintained at SVB that is subject to a Deposit  Account Control Agreement within thirty (30) days (or such later date as Agent shall determine, in its sole  but reasonable discretion), after receipt of such amounts by the Restricted Foreign Subsidiaries.    (b) No Credit Party will, or will permit any Subsidiary to, commingle any of its assets  (including any bank accounts, cash or Cash Equivalents) with the assets of any Person other than a Credit  Party and (ii) no Credit Party will permit any Restricted Foreign Subsidiary to commingle any of its assets  (including any bank accounts, cash or Cash Equivalents) with the assets of a Credit Party.  (c) No Credit Party shall permit any Restricted Foreign Subsidiary to own, or have  an exclusive license in respect of, any Material Intangible Assets.  ARTICLE 6 – FINANCIAL COVENANTS  Section 6.1 Minimum Net Revenue.  Borrowers shall not permit Net Revenue for any  applicable Defined Period, as tested quarterly on the last day of each Defined Period, to be less than the  Applicable Minimum Net Revenue Threshold for such Defined Period.    Section 6.2 Minimum Backlog. Borrowers shall not permit Backlog for any applicable  Defined Period, as tested quarterly on the last day of each Defined Period, to be less than the Applicable  Minimum Backlog Threshold for such Defined Period.   Section 6.3 Evidence of Compliance.  Borrowers shall furnish to Agent, as required by Section  4.1, a Compliance Certificate as evidence of (a) quarterly cash and Cash Equivalents of (x) Credit Parties,  taken as a whole and (y) the Restricted Foreign Subsidiaries, taken as a whole, (b) as applicable, Borrowers’  





 






79  MidCap / Viewray / Credit, Security and Guaranty Agreement               compliance with the covenants in this Article 6, and (c) that no Event of Default specified in this Article has  occurred.  The Compliance Certificate shall include, without limitation, (i) a statement and report, in form  and substance reasonably satisfactory to Agent, detailing Borrowers’ calculations, and (ii) if requested by  Agent, back-up documentation (including, without limitation, bank statements, invoices, receipts and other  evidence of costs incurred during such quarter as Agent shall reasonably require) evidencing the propriety  of the calculations.    ARTICLE 7 – CONDITIONS  Section 7.1 Conditions to Closing.  The obligation of each Lender to make the initial Loans on  the Closing Date shall be subject to the receipt by Agent of each agreement, document and instrument set  forth on the closing checklist attached hereto as Exhibit F, each in form and substance satisfactory to Agent,  and such other closing deliverables reasonably requested by Agent and Lenders, and to the satisfaction of  the following conditions precedent, each to the satisfaction of Agent and Lenders in their reasonable  discretion:  (a) the receipt by Agent of executed counterparts of this Agreement and the other  Financing Documents;  (b) the payment of all fees, expenses and other amounts due and payable under each  Financing Document;  (c) since December 31, 2021, the absence of any material adverse change in any  aspect of the business, operations, properties or condition (financial or otherwise) of any Credit Party, or  any event or condition which would reasonably be expected to result in such a material adverse change;  and  (d) the receipt of the initial Borrowing Base Certificate, prepared as of the Closing  Date.  Each Lender, by delivering its signature page to this Agreement, shall be deemed to have  acknowledged receipt of, and consented to and approved, each Financing Document and each other  document, agreement and/or instrument required to be approved by Agent, Required Lenders or Lenders,  as applicable, on the Closing Date.  Section 7.2 Conditions to Each Loan.  The obligation of the Lenders to make a Loan or an  advance in respect of any Loan (including the initial Loans), is subject to the satisfaction of the following  additional conditions:  (a) (i) in the case of each borrowing of Revolving Loans, receipt by Agent of a  Notice of Borrowing and an updated Borrowing Base Certificate, and (ii) in the case of a Term Loan  advance, receipt by Agent and Term Loan Servicer of a Notice of Borrowing in accordance with the  provisions of Section 2.1(a)(ii);  (b) the fact that, immediately after such borrowing and after application of the  proceeds thereof, the Revolving Loan Outstandings will not exceed the Revolving Loan Limit;  (c) with respect to any Term Loan Tranche 2, the audited consolidated financial  statements prepared under GAAP and the Compliance Certificate delivered by Borrowers pursuant to  Section 4.1(c) in connection with the fiscal year ending December 31, 2023, in each case, that  





 






80  MidCap / Viewray / Credit, Security and Guaranty Agreement               demonstrates to Agent’s and each Term Lender’s satisfaction that the Gross Margin Percentage for the  Defined Period ending on December 31, 2023 is greater than or equal to 17.5%;   (d) the fact that, immediately before and after such advance, no Default or Event of  Default shall have occurred and be continuing;  (e) for Loans made on the Closing Date, the fact that the representations and  warranties of each Credit Party contained in the Financing Documents shall be true, correct and complete  on and as of the Closing Date, except to the extent that any such representation or warranty relates to a  specific date in which case such representation or warranty shall be true and correct as of such earlier  date;  (f) for Loans made after the Closing Date, the fact that the representations and  warranties of each Credit Party contained in the Financing Documents shall be true, correct and complete  in all material respects on and as of the date of such borrowing, except to the extent that any such  representation or warranty relates to a specific earlier date, in which case such representation or warranty  shall be true and correct in all material respects as of such specific earlier date; provided, however, in  each case, such materiality qualifier shall not be applicable to any representations and warranties that  already are qualified or modified by materiality in the text thereof;    (g) with respect to any Term Loan Tranche 2 borrowing, Agent determines to its  satisfaction, in good faith, that there has not been any material impairment in the general affairs,  management, results of operation, financial condition or the prospect of repayment of the Obligations, or  any material adverse deviation by Credit Parties from the most recent business plan of Credit Parties  presented to and accepted by Agent; and   (h) there shall not have occurred any fact, event or condition which would  reasonably be expected to result in a Material Adverse Effect, as determined by Required Lenders in their  reasonable discretion.  Each giving of a Notice of Borrowing hereunder and each acceptance by any Borrower of the  proceeds of any Loan made hereunder shall be deemed to be (y) a representation and warranty by each  Credit Party on the date of such notice or acceptance as to the facts specified in this Section, and (z) a  restatement by each Credit Party that each and every one of the representations made by it in any of the  Financing Documents is true and correct as of such date (except to the extent that such representations and  warranties expressly relate solely to an earlier date).  Section 7.3 Searches.  Before the Closing Date, and thereafter (as and when determined by  Agent in its discretion), Agent shall have the right to perform, all at Borrowers’ expense, the searches  described in clauses (a), (b), and (c) below against Borrowers and any other Credit Party, the results of  which are to be consistent with Credit Parties’ representations and warranties under this Agreement and the  satisfactory results of which shall be a condition precedent to all advances of Loan proceeds:  (a) UCC  searches with the Secretary of State of the jurisdiction in which the applicable Person is organized;  (b) judgment, pending litigation, federal tax lien, personal property tax lien, and corporate and partnership  tax lien searches, in each jurisdiction searched under clause (a) above; and (c) searches of applicable  corporate, limited liability company, partnership and related records to confirm the continued existence,  organization and good standing of the applicable Person and the exact legal name under which such Person  is organized.  Notwithstanding anything to the contrary herein, after the Closing Date, Credit Parties shall  not be liable for the expenses associated with such searches conducted more than once during each twelve  month period unless an Event of Default has occurred and is continuing.  





 






81  MidCap / Viewray / Credit, Security and Guaranty Agreement               Section 7.4 Post-Closing Requirements.  Unless the Required Lenders shall otherwise consent,  Credit Parties shall complete each of the post-closing obligations and/or provide to Agent each of the  documents, instruments, agreements and information listed on Schedule 7.4 attached hereto on or before  the date set forth for each such item thereon, each of which shall be completed or provided in form and  substance reasonably satisfactory to Agent.  ARTICLE 8 – RESERVED  ARTICLE 9 – SECURITY AGREEMENT  Section 9.1 Generally.  As security for the payment and performance of the Obligations, and  without limiting any other grant of a Lien and security interest in any Security Document, each Credit Party  hereby assigns, grants and pledges to Agent, for the benefit of itself and Lenders, and, subject only to  Permitted Liens that may have priority as a matter of applicable Law, a continuing first priority Lien on and  security interest in, upon, and to the property and assets set forth on Schedule 9.1 attached hereto and made  a part hereof.    Section 9.2 Representations and Warranties and Covenants Relating to Collateral.  (a) The security interest granted pursuant to this Agreement constitutes a valid and,  to the extent such security interest is required to be perfected (except in respect of Excluded Perfection  Assets) by this Agreement and any other Financing Document, continuing perfected security interest in  favor of Agent in all Collateral subject, for the following Collateral, to the occurrence of the following:   (i) in the case of all Collateral in which a security interest may be perfected by filing a financing statement  under the UCC, the completion of the filings and other actions specified on Schedule 9.2(b) (which, in  the case of all filings and other documents referred to on such schedule, have been delivered to Agent in  completed and duly authorized form), (ii) with respect to any Deposit Account for which Deposit Account  Control Agreements are required pursuant to this Agreement, the execution of Deposit Account Control  Agreements, (iii) in the case of letter-of-credit rights that are not supporting obligations of Collateral, the  execution of a contractual obligation granting control to Agent over such letter-of-credit rights, (iv) in the  case of electronic chattel paper, the completion of all steps necessary to grant control to Agent over such  electronic chattel paper, (v) in the case of all certificated stock, debt instruments and investment property,  the delivery thereof to Agent of such certificated stock, debt instruments and investment property  consisting of instruments and certificates, in each case properly endorsed for transfer to Agent or in blank,  (vi) in the case of all investment property not in certificated form, the execution of control agreements  with respect to such investment property and (vii) in the case of all other instruments and tangible chattel  paper that are not certificated stock, debt instructions or investment property, the delivery thereof to Agent  of such instruments and tangible chattel paper.  Such security interest shall be prior to all other Liens on  the Collateral except for Permitted Liens.  Except to the extent not required pursuant to the terms of this  Agreement, all actions by each Credit Party necessary or desirable to protect and perfect the Lien granted  hereunder on the Collateral have been duly taken.  (b) Schedule 9.2(b) (as updated by the Compliance Certificates delivered to Agent  from time to time after the Closing Date) sets forth (i) each chief executive office and principal place of  business of each Credit Party and each of their respective Subsidiaries, and (ii) all of the addresses  (including all warehouses) at which any of the Collateral is located and/or books and records of Credit  Parties  regarding any Collateral or any of Credit Party’s  assets, liabilities, business operations or  financial condition are kept, which such Schedule 9.2(b) indicates in each case which Credit Parties have  Collateral and/or books and records located at such address, and, in the case of any such address not  owned by one or more of the Credit Parties, indicates the nature of such location (e.g., leased business  





 






82  MidCap / Viewray / Credit, Security and Guaranty Agreement               location operated by Credit Parties, third party warehouse, consignment location, processor location, etc.)  and the name and address of the third party owning and/or operating such location.  (c) Without limiting the generality of Section 3.2, except as indicated on  Schedule 3.19 with respect to any rights of any Credit Party as a licensee under any license of Intellectual  Property owned by another Person, and except for the filing of financing statements under the UCC, no  authorization, approval or other action by, and no notice to or filing with, any Governmental Authority  or consent of any other Person is required for (i) the grant by each Credit Party to Agent of the security  interests and Liens in the Collateral provided for under this Agreement and the other Security Documents  (if any), or (ii) the granting of the security interest or the exercise by Agent of its rights and remedies with  respect to the Collateral provided for under this Agreement and the other Security Documents or under  any applicable Law, including the UCC and neither any such grant of Liens in favor of Agent or exercise  of rights by Agent shall violate or cause a default under any agreement between any Credit Party and any  other Person relating to any such collateral, including any license to which a Credit Party is a party,  whether as licensor or licensee, with respect to any Intellectual Property, whether owned by such Credit  Party or any other Person.  (d) As of the Closing Date, except as set forth on Schedule 9.2(d) and except to the  extent constituting Excluded Perfection Assets, no Credit Party has any ownership interest in any Chattel  Paper (as defined in Article 9 of the UCC), letter of credit rights, commercial tort claims, Instruments,  documents or investment property (in each case, other than Excluded Perfection Assets or Equity Interests  in any Subsidiaries of such Credit Party disclosed on Schedule 3.4), and Credit Parties shall give notice  to Agent promptly (but in any event not later than the delivery by Credit Parties of the next quarterly  Compliance Certificate required pursuant to Section 4.1 above) upon the acquisition by any Credit Party  of any such Chattel Paper, letter of credit rights, commercial tort claims, Instruments, documents,  investment property, in each case, other than Excluded Perfection Assets.  No Person other than Agent  or (if applicable) any Lender has “control” (as defined in Article 9 of the UCC) over any Deposit Account,  investment property (including Securities Accounts and commodities account), letter of credit rights or  electronic chattel paper in which any Credit Party has any interest (except for such control arising by  operation of law in favor of any bank or securities intermediary or commodities intermediary with whom  any Deposit Account, Securities Account or commodities account of Credit Parties  is maintained).   (e) Credit Parties shall not take any of the following actions or make any of the  following changes unless Credit Parties  have given at least thirty (30) days prior written notice to Agent  of Credit Parties’  intention to take any such action (which such written notice shall include an updated  version of any Schedule impacted by such change) and have executed any and all documents, instruments  and agreements and taken any other actions which Agent may request after receiving such written notice  in order to protect and preserve the Liens, rights and remedies of Agent with respect to the Collateral:   (i) change the legal name or organizational identification number of any Credit Party as it appears in  official filings in the jurisdiction of its organization, (ii) change the jurisdiction of incorporation or  formation of any Borrower or Credit Party or allow any Borrower or Credit Party to designate any  jurisdiction as an additional jurisdiction of incorporation for such Borrower or Credit Party, or change  the type of entity that it is; provided that in no event shall a Credit Party organized under the laws of the  United States or any state thereof be reorganized under the laws of a jurisdiction other than the United  States or any State thereof or (iii) change its chief executive office, principal place of business, or the  location of its books and records or move any Collateral to or place any Collateral on any location that is  not then listed on the Schedules , as updated from time to time pursuant to the terms of this Agreement,  and/or establish (other than Collateral that is in transit or out for repair) any business location at any  location that is not then listed on the Schedules.  





 






83  MidCap / Viewray / Credit, Security and Guaranty Agreement               (f) Credit Parties shall not adjust, settle or compromise the amount or payment of  any Account, or release wholly or partly any Account Debtor, or allow any credit or discount thereon  (other than adjustments, settlements, compromises, credits and discounts in the Ordinary Course of  Business, made while no Default exists and in amounts that are otherwise not material with respect to the  Account and which, after giving effect thereto, do not cause the Borrowing Base to be less than the  Revolving Loan Outstandings) without the prior written consent of Agent.  Without limiting the  generality of this Agreement or any other provisions of any of the Financing Documents relating to the  rights of Agent after the occurrence and during the continuance of an Event of Default, Agent shall have  the right at any time after the occurrence and during the continuance of an Event of Default to:  (i) exercise  the rights of Credit Parties with respect to the obligation of any Account Debtor to make payment or  otherwise render performance to Credit Parties and with respect to any property that secures the  obligations of any Account Debtor or any other Person obligated on the Collateral, and (ii) adjust, settle  or compromise the amount or payment of such Accounts.    (g) All documentation reasonably requested by Agent for compliance with the  Assignment of Claims Act has been executed and delivered by Borrowers to Agent in connection with  each Account that is an obligation of a Governmental Account Debtor, and, with respect to Accounts for  which the Account Debtor obligated thereon is any State of the United States, municipality, political  subdivision or other governmental entity of any such State, all documentation reasonably requested by  Agent for compliance with any statute in effect in such State that is substantially similar to the Assignment  of Claims Act, as determined by Agent, has been executed and delivered by Borrowers to Agent in  connection with each such Account.  (h) Without limiting the generality of Sections 9.2(c) and 9.2(e):  (i) Credit Parties  shall deliver to Agent all tangible Chattel Paper and all  Instruments and documents (other than any Excluded Perfection Assets) owned by any Credit Party  and constituting part of the Collateral duly endorsed and accompanied by duly executed instruments  of transfer or assignment, all in form and substance satisfactory to Agent.  Credit Parties shall  provide Agent with “control” (as defined in Article 9 of the UCC) of all electronic Chattel Paper  (other than Excluded Perfection Assets) owned by any Credit Party and constituting part of the  Collateral by having Agent identified as the assignee on the records pertaining to the single  authoritative copy thereof and otherwise complying with the applicable elements of control set  forth in the UCC.  Credit Parties also shall deliver to Agent all security agreements securing any  such Chattel Paper and securing any such Instruments (other than Excluded Perfection Assets).   Credit Parties will mark conspicuously all such Chattel Paper and all such Instruments and  documents (other than Excluded Perfection Assets) with a legend, in form and substance  satisfactory to Agent, indicating that such Chattel Paper and such instruments and documents are  subject to the security interests and Liens in favor of Agent created pursuant to this Agreement and  the Security Documents.  Credit Parties shall comply with all the provisions of Section 5.14 with  respect to the Deposit Accounts and Securities Accounts of Credit Parties.  (ii) Credit Parties shall deliver to Agent all letters of credit (except to the  extent constituting an Excluded Perfection Asset) on which any Credit Party is the beneficiary and  which give rise to letter of credit rights owned by such Credit Party which constitute part of the  Collateral in each case duly endorsed and accompanied by duly executed instruments of transfer or  assignment, all in form and substance satisfactory to Agent.  Except with respect to Excluded  Perfection Assets, Credit Parties shall take any and all actions as may be necessary or desirable, or  that Agent may request, from time to time, to cause Agent to obtain exclusive “control” (as defined  in Article 9 of the UCC) of any such letter of credit rights in a manner acceptable to Agent.  





 






84  MidCap / Viewray / Credit, Security and Guaranty Agreement               (iii) Credit Parties shall promptly advise Agent upon any Credit Party  becoming aware that it has any interests in any commercial tort claim (except to the extent  constituting an Excluded Perfection Asset), which such notice shall include descriptions of the  events and circumstances giving rise to such commercial tort claim and the dates such events and  circumstances occurred, the potential defendants with respect such commercial tort claim and any  court proceedings that have been instituted with respect to such commercial tort claims, and Credit  Parties shall, with respect to any such commercial tort claim, execute and deliver to Agent such  documents as Agent shall request to perfect, preserve or protect the Liens, rights and remedies of  Agent with respect to any such commercial tort claim.  (iv) Credit Parties shall obtain a landlord’s agreement, mortgagee agreement,  or bailee agreement, as applicable, from the lessor of each leased property, the mortgagee of owned  property or the warehouseman, consignee, bailee at any business location, in each case, located in  the United States and (a) which is a Credit Party’s chief executive office or (b) where (i) any portion  of the Collateral included in or proposed to be included in the Borrowing Base, or (ii) any portion  of the Collateral with a value in excess of $1,000,000, is located, in each case, which agreement or  letter shall be reasonably satisfactory in form and substance to Agent. Credit Parties shall timely  and fully pay and perform its obligations under all leases and other agreements with respect to each  of the locations specified in the preceding sentence. In no event shall the Credit Parties maintain  tangible Collateral (other than Inventory with contract manufacturers and Inventory in transit in the  Ordinary Course of Business) with a value in excess of $500,000 outside of the United States  without Agent’s prior consent.   (v) Credit Parties shall cause all material Equipment and other material  tangible personal property other than Inventory to be maintained and preserved in the same  condition, repair and in working order as when new, ordinary wear and tear excepted, and shall  promptly make or cause to be made all repairs, replacements and other improvements in connection  therewith that are reasonably necessary or desirable to such end.  Upon request of Agent, Credit  Parties shall promptly deliver to Agent any and all certificates of title, applications for title or  similar evidence of ownership of all such tangible personal property (other than Excluded  Perfection Assets) and shall cause Agent to be named as lienholder on any such certificate of title  or other evidence of ownership.  Credit Parties shall not permit any such tangible personal property  to become fixtures to real estate unless such real estate is subject to a Lien in favor of Agent.  (vi) Each Credit Party hereby authorizes Agent to file without the signature of  such Credit Party one or more UCC financing statements relating to liens on personal property  relating to all or any part of the Collateral, which financing statements may list Agent as the  “secured party” and such Credit Party as the “debtor” and which describe and indicate the collateral  covered thereby as all or any part of the Collateral under the Financing Documents  (including an  indication of the collateral covered by any such financing statement as “all assets” of such Borrower  now owned or hereafter acquired) in such jurisdictions as Agent from time to time determines are  appropriate, and to file without the signature of such Credit Party any continuations of or corrective  amendments to any such financing statements, in any such case in order for Agent to perfect,  preserve or protect the Liens, rights and remedies of Agent with respect to the Collateral.  Each  Credit Party also ratifies its authorization for Agent to have filed in any jurisdiction any initial  financing statements or amendments thereto if filed prior to the date hereof.    (vii) With respect to any Government Contract or Governmental Account  Debtor for which Agent reasonably requests that a Credit Party comply with the provisions of the  Assignment of Claims Act (or with respect to Accounts for which the Account Debtor obligated  





 






85  MidCap / Viewray / Credit, Security and Guaranty Agreement               thereon is any State of the United States, municipality, political subdivision or other governmental  entity of any such State, any statute in effect in such State that is substantially similar to the  Assignment of Claims Act, as determined by Agent), Agent shall prepare and deliver to such Credit  Party, with a copy to the Borrower Representative, (A) a properly completed notice of assignment  (in form and substance reasonably satisfactory to Agent) and a properly completed instrument of  assignment (in form and substance reasonably satisfactory to Agent; such instrument together with  the notice, the “Federal Assignment Documents”) with respect to such Government Contract, or  (B) with respect to Accounts for which the Governmental Account Debtor obligated thereon is any  State of the United States, municipality, political subdivision or other governmental entity of any  such State, any notices of assignment, instrument of assignment or other document applicable in  such State, as determined by Agent (collectively, the “State Assignment Documents”), in each  case, in order that all moneys due or to become due under such Government Account shall be  assigned to Agent, for the benefit of the Lenders.  Promptly (and in any event within ten (10)  Business Days) after receipt thereof, the applicable Credit Party shall execute and return to Agent  such Federal Assignment Documents or State Assignment Documents, as applicable. Agent is  authorized to file the Federal Assignment Documents or State Assignment Documents with the  appropriate Governmental Authority at any time thereafter and shall simultaneously provide a copy  of such filing to Borrower Representative and the applicable Credit Party.  (viii) Credit Parties shall furnish to Agent from time to time any statements and  schedules further identifying or describing the Collateral and any other information, reports or  evidence concerning the Collateral as Agent may reasonably request from time to time.   ARTICLE 10 - EVENTS OF DEFAULT  Section 10.1 Events of Default.  For purposes of the Financing Documents, the occurrence of  any of the following conditions and/or events, whether voluntary or involuntary, by operation of law or  otherwise, shall constitute an “Event of Default”:  (a) (i) any Credit Party shall fail to pay when due any principal, interest, premium  or fee under any Financing Document or any other amount payable under any Financing Document, or  (ii) there shall occur any default in the performance of or compliance with any of the following sections or  articles of this Agreement: Section 2.11, Section 4.1, Section 4.2(b), Section 4.4(c), Section 4.6, Section  4.9, Section 4.11, Section 4.15, Section 4.16, Section 4.17, Article 5, Article 6, or Section 7.4;  (b) any Credit Party defaults in the performance of or compliance with any term  contained in this Agreement or in any other Financing Document (other than occurrences described in  other provisions of this Section 10.1 for which a different grace or cure period is specified or for which  no grace or cure period is specified and thereby constitute immediate Events of Default) and such default  is not remedied by the Credit Party or waived by Agent within thirty (30) days after the earlier of  (i) receipt by Borrower Representative of notice from Agent or Required Lenders of such default, or  (ii) actual knowledge of any Responsible Officer of the Borrower or any other Credit Party of such  default;  (c) any written representation, warranty, certification or statement made by any  Credit Party or any other Person in any Financing Document or in any certificate, financial statement or  other document delivered pursuant to any Financing Document is incorrect in any respect (or in any  material respect if such representation, warranty, certification or statement is not by its terms already  qualified as to materiality) when made (or deemed made);  





 






86  MidCap / Viewray / Credit, Security and Guaranty Agreement               (d) (i) failure of any Credit Party to pay when due or within any applicable grace  period any principal, interest or other amount on Debt  (other than the Loans), or the occurrence of any  breach, default, condition or event with respect to any Debt (other than the Loans), if the effect of such  failure or occurrence is to cause or to permit the holder or holders of any such Debt, or to cause, Debt or  other liabilities having an individual principal amount in excess of $1,000,000 or having an aggregate  principal amount in excess of $2,000,000 to become or be declared due prior to its stated maturity, or  (ii) without limiting the foregoing, the occurrence of any breach or default under any terms or provisions  of any Subordinated Debt Document or under any agreement subordinating the Subordinated Debt to all  or any portion of the Obligations or the occurrence of any event requiring (or that would allow the holders  thereof to require) the prepayment or mandatory redemption of any Subordinated Debt;   (e) any Credit Party or any Subsidiary of a Credit Party shall commence a voluntary  case or other proceeding seeking liquidation, reorganization or other relief with respect to itself or its  debts under any bankruptcy, insolvency or other similar law or any analogous procedure or step is taken  in any other jurisdiction) now or hereafter in effect or seeking the appointment of a trustee, receiver,  liquidator, custodian or other similar official of it or any substantial part of its property, or shall consent  to any such relief or to the appointment of or taking possession by any such official in an involuntary case  or other proceeding commenced against it, or shall make a general assignment for the benefit of creditors,  or shall fail generally to pay its debts as they become due, or shall take any corporate action to authorize  the foregoing;  (f) an involuntary case or other proceeding shall be commenced against any Credit  Party or any Subsidiary of a Credit Party seeking liquidation, reorganization or other relief with respect  to it or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or  seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of it or any  substantial part of its property, and such involuntary case or other proceeding shall remain undismissed  and unstayed for a period of forty-five (45) days; or an order for relief shall be entered against any Credit  Party or any Subsidiary of a Credit Party under applicable federal bankruptcy, insolvency or other similar  law in respect of (i) bankruptcy, liquidation, winding-up, dissolution or suspension of general operations,  (ii) composition, rescheduling, reorganization, arrangement or readjustment of, or other relief from, or  stay of proceedings to enforce, some or all of the debts or obligations, or (iii) possession, foreclosure,  seizure or retention, sale or other disposition of, or other proceedings to enforce security over, all or any  substantial part of the assets of such Credit Party or Subsidiary;  (g) (i) institution of any steps by any Person to terminate a Pension Plan if as a result  of such termination any Credit Party or any member of the Controlled Group could be required to make  a contribution to such Pension Plan, or could incur a liability or obligation to such Pension Plan, in excess  of $250,000, (ii) a contribution failure occurs with respect to any Pension Plan sufficient to give rise to a  Lien under Section 303(k) of ERISA or Section 430(k) of the Code or an event occurs that would  reasonably be expected to give rise to a Lien under Section 4068 of ERISA, or (iii) there shall occur any  withdrawal or partial withdrawal from a Multiemployer Plan and the withdrawal liability (without  unaccrued interest) to Multiemployer Plans as a result of such withdrawal (including any outstanding  withdrawal liability that any Credit Party or any member of the Controlled Group have incurred on the  date of such withdrawal) exceeds $1,000,000;   (h) there is entered against any Credit Party or any Subsidiary thereof (i) one or more  judgments or orders for the payment of money or fines or penalties issued by any Governmental Authority  involving in the aggregate a liability (not fully covered or paid by insurance as to which the relevant  insurance company has acknowledged coverage) of $3,000,000 or more, or (ii) one or more non-monetary  final judgments that have, or would reasonably be expected to have, individually or in the aggregate, a  





 






87  MidCap / Viewray / Credit, Security and Guaranty Agreement               Material Adverse Effect and, in either case (i) or (ii), (A) enforcement proceedings are commenced by  any creditor or any such Governmental Authority, as applicable, upon such judgment, order, penalty or  fine, as applicable, or (B) such judgment, order, penalty or fine, as applicable, shall not have been vacated,  discharged, stayed or bonded, as applicable, pending appeal within 20 days from the entry or issuance  thereof;   (i) except solely as a result of any action or inaction of Agent or any Lenders  (provided that such action or inaction is not caused by a Credit Party’s failure to comply with the terms  of the Financing Documents), any Lien created by any of the Security Documents shall at any time fail  to constitute a valid and perfected Lien on all of the Collateral purported to be encumbered thereby,  subject to no prior or equal Lien except Permitted Liens, or any Credit Party shall so assert;  (j) the institution by any Governmental Authority of criminal proceedings against  any Credit Party;  (k) a default or event of default occurs under any other Financing Document and  any applicable grace period under such Financing Document has expired;   (l) Viewray’s equity securities fail to remain registered with the SEC and listed for  trading on the Nasdaq Stock Market;   (m) the occurrence of any Material Adverse Effect;   (n) any Credit Party defaults under or breaches any Material Contract (after any  applicable grace period contained therein), or a Material Contract shall be terminated by a third party or  parties party thereto prior to the expiration thereof, or there is a loss of a material right of a Credit Party  under any Material Contract to which it is a party;   (o) the occurrence of a Change in Control; or  (p) any of the Financing Documents shall for any reason fail to constitute the valid  and binding agreement of any party thereto, or any Credit Party shall so assert, in each case, unless such  Financing Document terminates pursuant to the terms and conditions thereof without any breach or  default thereunder by any Credit Party thereto.   All cure periods provided for in this Section 10.1 shall run concurrently with any cure period  provided for in any applicable Financing Documents under which the default occurred.  Section 10.2 Acceleration and Suspension or Termination of Revolving Loan Commitment and  Term Loan Commitment.  Upon the occurrence and during the continuance of an Event of Default, Agent  may, and shall if requested by Required Lenders, (a) by notice to Borrower Representative suspend or  terminate the Revolving Loan Commitment and/or Term Loan Commitment and the obligations of Agent,  Term Loan Servicer and the Lenders with respect thereto, in whole or in part (and, if in part, each Lender’s  Revolving Loan Commitment and/or Term Loan Commitment shall be reduced in accordance with its Pro  Rata Share), and/or (b) by notice to Borrower Representative declare all or any portion of the Obligations  to be, and the Obligations shall thereupon become, immediately due and payable, with accrued interest  thereon, without presentment, demand, protest or other notice of any kind, all of which are hereby waived  by each Credit Party and Credit Parties will pay the same; provided, however, that in the case of any of the  Events of Default specified in Section 10.1(e) or 10.1(f) above, without any notice to any Credit Party or  any other act by Agent or the Lenders, the Revolving Loan Commitment and Term Loan Commitment and  





 






88  MidCap / Viewray / Credit, Security and Guaranty Agreement               the obligations of Agent, Term Loan Servicer and the Lenders with respect thereto shall thereupon  immediately and automatically terminate and all of the Obligations shall become immediately and  automatically due and payable without presentment, demand, protest or other notice of any kind, all of  which are hereby waived by each Credit Party and Credit Parties will pay the same.  Section 10.3 UCC Remedies.  (a) Upon the occurrence of and during the continuance of an Event of Default under  this Agreement or the other Financing Documents, Agent, in addition to all other rights, options, and  remedies granted to Agent under this Agreement or at law or in equity, may exercise, either directly or  through one or more assignees or designees, all rights and remedies granted to it under all Financing  Documents and under the UCC in effect in the applicable jurisdiction(s) and under any other applicable  law; including, without limitation:  (i) the right to take possession of, send notices regarding, and collect directly  the Collateral, with or without judicial process;  (ii) the right to (by its own means or with judicial assistance) enter any of  Credit Parties’ premises and take possession of the Collateral, or render it unusable, or to render it  usable or saleable, or dispose of the Collateral on such premises in compliance with subsection (iii)  below and to take possession of Credit Parties’ original books and records, to obtain access to  Credit Parties’ data processing equipment, computer hardware and software relating to the  Collateral and to use all of the foregoing and the information contained therein in any manner Agent  deems appropriate, without any liability for rent, storage, utilities, or other sums, and Credit Parties  shall not resist or interfere with such action (if Credit Parties’ books and records are prepared or  maintained by an accounting service, contractor or other third party agent, Credit Parties hereby  irrevocably authorize such service, contractor or other agent, upon notice by Agent to such Person  that an Event of Default has occurred and is continuing, to deliver to Agent or its designees such  books and records, and to follow Agent’s instructions with respect to further services to be  rendered);  (iii) the right to require Credit Parties at Credit Parties’ expense to assemble all  or any part of the Collateral and make it available to Agent at any place designated by Lender;  (iv) the right to notify postal authorities to change the address for delivery of  Credit Parties’ mail to an address designated by Agent and to receive, open and dispose of all mail  addressed to any Credit Party; and/or  (v) the right to enforce Credit Parties’ rights against Account Debtors and  other obligors, including, without limitation, (i) the right to collect Accounts directly in Agent’s  own name (as agent for Lenders) and to charge the collection costs and expenses, including  documented out-of-pocket attorneys’ fees, to Credit Parties, and (ii) the right, in the name of Agent  or any designee of Agent or Credit Parties, to verify the validity, amount or any other matter relating  to any Accounts by mail, telephone, telegraph or otherwise, including, without limitation,  verification of Credit Parties’ compliance with applicable Laws.  Credit Parties shall cooperate  fully with Agent in an effort to facilitate and promptly conclude such verification process.  Such  verification may include contacts between Agent and applicable federal, state and local regulatory  authorities having jurisdiction over the Credit Parties’ affairs, all of which contacts Credit Parties  hereby irrevocably authorize.  





 






89  MidCap / Viewray / Credit, Security and Guaranty Agreement               (b) Each Credit Party agrees that a notice received by it at least ten (10) days before  the time of any intended public sale, or the time after which any private sale or other disposition of the  Collateral is to be made, shall be deemed to be reasonable notice of such sale or other disposition.  If  permitted by applicable law, any perishable Collateral which threatens to speedily decline in value or  which is sold on a recognized market may be sold immediately by Agent without prior notice to Credit  Parties.  At any sale or disposition of Collateral, Agent may (to the extent permitted by applicable law)  purchase all or any part of the Collateral, free from any right of redemption by Credit Parties, which right  is hereby waived and released.  Each Credit Party covenants and agrees not to interfere with or impose  any obstacle to Agent’s exercise of its rights and remedies with respect to the Collateral.  Agent shall  have no obligation to clean-up or otherwise prepare the Collateral for sale.  Agent may comply with any  applicable state or federal law requirements in connection with a disposition of the Collateral and  compliance will not be considered to adversely affect the commercial reasonableness of any sale of the  Collateral.  Agent may sell the Collateral without giving any warranties as to the Collateral.  Agent may  specifically disclaim any warranties of title or the like.  This procedure will not be considered to adversely  affect the commercial reasonableness of any sale of the Collateral.  If Agent sells any of the Collateral  upon credit, Credit Parties will be credited only with payments actually made by the purchaser, received  by Agent and applied to the indebtedness of the purchaser.  In the event the purchaser fails to pay for the  Collateral, Agent may resell the Collateral and Credit Parties shall be credited with the proceeds of the  sale. Credit Parties shall remain liable for any deficiency if the proceeds of any sale or disposition of the  Collateral are insufficient to pay all Obligations.  (c) Without restricting the generality of the foregoing and for the purposes aforesaid,  each Credit Party hereby appoints and constitutes Agent its lawful attorney-in-fact with full power of  substitution in the Collateral, upon the occurrence and during the continuance of an Event of Default, to  (i) use unadvanced funds remaining under this Agreement or which may be reserved, escrowed or set  aside for any purposes hereunder at any time, or to advance funds in excess of the face amount of the  Notes, (ii) pay, settle or compromise all existing bills and claims, which may be Liens or security interests,  or to avoid such bills and claims becoming Liens against the Collateral, (iii) execute all applications and  certificates in the name of such Credit Party and to prosecute and defend all actions or proceedings in  connection with the Collateral, and (iv) do any and every act which such Credit Party might do in its own  behalf; it being understood and agreed that this power of attorney in this subsection (c) shall be a power  coupled with an interest and cannot be revoked.  (d) Upon the occurrence and during the continuance of an Event of Default, subject  to any right of any third parties and/or any agreement between any Borrower and any third party to the  extent not granted or entered into in contravention of the terms of this Agreement,  Agent and each Lender  is hereby granted a non-exclusive, royalty-free license or other right to use, upon the occurrence and  during the continuance of an Event of Default, without charge, Credit Parties’ labels, mask works, rights  of use of any name, any other Intellectual Property and advertising matter, and any similar property as it  pertains to the Collateral, in completing production of, advertising for sale, and selling any Collateral and,  in connection with Agent’s exercise of its rights under this Article, Credit Parties’ rights under all licenses  (whether as licensor or licensee) and all franchise agreements inure to Agent’s and each Lender’s benefit,  subject to any rights of third party licensors or licensees, as applicable.  Section 10.4 Protective Payments.  If any Credit Party fails to pay or perform any covenant or  obligation under this Agreement or any other Financing Document, Agent may pay or perform such  covenant or obligation, and all amounts so paid by Agent are Protective Advances and immediately due  and payable, constituting principal and bearing interest at the then highest applicable rate for the Loans  hereunder, and secured by the Collateral.  No such payments or performance by Agent shall be construed  as an agreement to make similar payments or performance in the future or constitute Agent’s waiver of any  





 






90  MidCap / Viewray / Credit, Security and Guaranty Agreement               Event of Default. Without limiting the foregoing, each Lender and Borrower hereby authorizes Agent,  without the necessity of any notice or further consent from any Lender, from time to time prior to a Default,  to make any Protective Advance with respect to any Collateral or the Financing Documents which may be  necessary to protect the priority, validity or enforceability of any lien on, and security interest in, any  Collateral and the instruments evidencing or securing the obligations of Borrower under the Financing  Documents.  Credit Parties agree to pay on demand all Protective Advances.  The Lenders must reimburse  Agent for any Protective Advances (in accordance with their Pro Rata Shares) to the extent not reimbursed  by Credit Parties.   Section 10.5 Default Rate of Interest.  At the election of Agent or Required Lenders, after the  occurrence of an Event of Default and for so long as it continues, the Loans and other Obligations shall  bear interest at rates that are two percent (2.0%) per annum in excess of the rates otherwise payable under  this Agreement; provided, however, that in the case of any Event of Default specified in Section 10.1(e) or  10.1(f) above, such default rates shall apply immediately and automatically without the need for any  election or action of any kind on the part of Agent or any Lender.   Section 10.6 Setoff Rights.  During the continuance of any Event of Default, each Lender is  hereby authorized by each Credit Party at any time or from time to time, with reasonably prompt subsequent  notice to such Credit Party (any prior or contemporaneous notice being hereby expressly waived) to set off  and to appropriate and to apply any and all (a) balances held by such Lender or any of such Lender’s  Affiliates at any of its offices for the account of such Credit Party or any of its Subsidiaries (regardless of  whether such balances are then due to such Credit Party or its Subsidiaries), and (b) other property at any  time held or owing by such Lender to or for the credit or for the account of such Credit Party or any of its  Subsidiaries, against and on account of any of the Obligations (other than contingent obligations for which  not claim has been made); except that no Lender shall exercise any such right without the prior written  consent of Agent.  Any Lender exercising a right to set off shall purchase for cash (and the other Lenders  shall sell) interests in each of such other Lender’s Pro Rata Share of the Obligations as would be necessary  to cause all Lenders to share the amount so set off with each other Lender in accordance with their respective  Pro Rata Share of the Obligations.  Each Credit Party agrees, to the fullest extent permitted by law, that any  Lender and any of such Lender’s Affiliates may exercise its right to set off with respect to the Obligations  as provided in this Section 10.6.  Section 10.7 Application of Proceeds.    (a) Notwithstanding anything to the contrary contained in this Agreement, upon the  occurrence and during the continuance of an Event of Default, each Credit Party irrevocably waives the  right to direct the application of any and all payments at any time or times thereafter received by Agent  or Term Loan Servicer from or on behalf of such Borrower or any Guarantor of all or any part of the  Obligations, and, as between Credit Parties on the one hand and Agent, Term Loan Servicer and Lenders  on the other, Agent shall have the continuing and exclusive right to apply and to reapply any and all  payments received by Agent or Term Loan Servicer against the Obligations in such manner as Agent may  deem advisable notwithstanding any previous application by Agent.   (b) Following the occurrence and during the continuance of an Event of Default, but  absent the occurrence and continuance of an Acceleration Event, Agent and Term Loan Servicer, as  applicable, shall apply any and all payments received by Agent or Term Loan Servicer (as applicable) in  respect of the Obligations, and any and all proceeds of Collateral received by Agent or Term Loan  Servicer, in such order as Agent or Term Loan Servicer, as applicable, may from time to time elect.  





 






91  MidCap / Viewray / Credit, Security and Guaranty Agreement               (c) Notwithstanding anything to the contrary contained in this Agreement, if an  Acceleration Event shall have occurred, and so long as it continues, Agent or Term Loan Servicer, as  applicable, shall apply any and all payments received by Agent or Term Loan Servicer, as applicable, in  respect of the Obligations, and any and all proceeds of Collateral received by Agent or Term Loan  Servicer, in the following order:  first, to all fees, costs, indemnities, liabilities, obligations and expenses  incurred by or owing to Agent or Term Loan Servicer with respect to this Agreement, the other Financing  Documents or the Collateral; second, to pay the Protective Advances and interest due or accrued in respect  thereof, until paid in full third, to all fees, costs, indemnities, liabilities, obligations and expenses incurred  by or owing to any Lender with respect to this Agreement, the other Financing Documents or the  Collateral; fourth, to accrued and unpaid interest on the Obligations (including any interest which, but for  the provisions of the Bankruptcy Code, would have accrued on such amounts); fifth, to the principal  amount of the Obligations outstanding; and sixth to any other indebtedness or obligations of Credit Parties  owing to Agent, Term Loan Servicer or any Lender under the Financing Documents. Any balance  remaining shall be delivered to Credit Parties or to whomever may be lawfully entitled to receive such  balance or as a court of competent jurisdiction may direct.  In carrying out the foregoing, (y) amounts  received shall be applied in the numerical order provided until exhausted prior to the application to the  next succeeding category, and (z) each of the Persons entitled to receive a payment in any particular  category shall receive an amount equal to its Pro Rata Share of amounts available to be applied pursuant  thereto for such category.  Section 10.8 Waivers.  (a) Except as otherwise provided for in this Agreement and to the fullest extent  permitted by applicable law, each Credit Party waives:  (i) presentment, demand and protest, and notice  of presentment, dishonor, intent to accelerate, acceleration, protest, default, nonpayment, maturity,  release, compromise, settlement, extension or renewal of any or all Financing Documents, the Notes or  any other notes, commercial paper, accounts, contracts, documents, Instruments, Chattel Paper and  Guarantees at any time held by Lenders on which any Credit Party may in any way be liable, and hereby  ratifies and confirms whatever Lenders may lawfully do in this regard; (ii) all rights to notice and a  hearing prior to Agent’s or any Lender’s taking possession or control of, or to Agent’s or any Lender’s  replevy, attachment or levy upon, any Collateral or any bond or security which might be required by any  court prior to allowing Agent or any Lender to exercise any of its remedies; and (iii) the benefit of all  valuation, appraisal and exemption Laws.  Each Credit Party acknowledges that it has been advised by  counsel of its choices and decisions with respect to this Agreement, the other Financing Documents and  the transactions evidenced hereby and thereby.  (b) Each Credit Party for itself and all its successors and assigns, (i) agrees that its  liability shall not be in any manner affected by any indulgence, extension of time, renewal, waiver, or  modification granted or consented to by Lender and made in accordance with the terms of any Financing  Document; (ii) consents to any indulgences and all extensions of time, renewals, waivers, or  modifications that may be granted by Agent, Term Loan Servicer or any Lender with respect to the  payment or other provisions of the Financing Documents and made in accordance with the terms of any  Financing Document, and to any substitution, exchange or release of the Collateral, or any part thereof,  with or without substitution, and agrees to the addition or release of any Credit Party, endorsers,  guarantors, or sureties, or whether primarily or secondarily liable, without notice to any other Credit Party  and without affecting its liability hereunder; (iii) agrees that its liability shall be unconditional and without  regard to the liability of any other Credit Party, Agent, Term Loan Servicer or any Lender for any tax on  the indebtedness; and (iv) to the fullest extent permitted by law, expressly waives the benefit of any statute  or rule of law or equity now provided, or which may hereafter be provided, which would produce a result  contrary to or in conflict with the foregoing.  





 






92  MidCap / Viewray / Credit, Security and Guaranty Agreement               (c) To the extent that Agent, Term Loan Servicer or any Lender may have  acquiesced in any noncompliance with any requirements or conditions precedent to the closing of the  Loans or to any subsequent disbursement of Loan proceeds, such acquiescence shall not be deemed to  constitute a waiver by Agent, Term Loan Servicer or any Lender of such requirements with respect to  any future disbursements of Loan proceeds and Agent, Term Loan Servicer or any Lender may at any  time after such acquiescence require Credit Parties to comply with all such requirements.  Any  forbearance by Agent, Term Loan Servicer or Lender in exercising any right or remedy under any of the  Financing Documents, or otherwise afforded by applicable law, including any failure to accelerate the  maturity date of the Loans, shall not be a waiver of or preclude the exercise of any right or remedy nor  shall it serve as a novation of the Notes or as a reinstatement of the Loans or a waiver of such right of  acceleration or the right to insist upon strict compliance of the terms of the Financing Documents.   Agent’s, Term Loan Servicer’s or any Lender’s acceptance of payment of any sum secured by any of the  Financing Documents after the due date of such payment shall not be a waiver of Agent’s, Term Loan  Servicer’s and such Lender’s right to either require prompt payment when due of all other sums so secured  or to declare a default for failure to make prompt payment.  The procurement of insurance or the payment  of taxes or other Liens or charges by Agent as the result of an Event of Default shall not be a waiver of  Agent’s right to accelerate the maturity of the Loans, nor shall Agent’s receipt of any condemnation  awards, insurance proceeds, or damages under this Agreement operate to cure or waive any Credit Party’s  default in payment of sums secured by any of the Financing Documents.  (d) Without limiting the generality of anything contained in this Agreement or the  other Financing Documents, each Credit Party agrees that if an Event of Default is continuing (i) Agent,  Term Loan Servicer and Lenders shall not be subject to any “one action” or “election of remedies” law  or rule, and (ii) all Liens and other rights, remedies or privileges provided to Agent, Term Loan Servicer  or Lenders shall remain in full force and effect until Agent, Term Loan Servicer or Lenders have  exhausted all remedies against the Collateral and any other properties owned by Credit Parties and the  Financing Documents and other security instruments or agreements securing the Loans have been  foreclosed, sold and/or otherwise realized upon in satisfaction of Credit Parties’ obligations under the  Financing Documents.  (e) Nothing contained herein or in any other Financing Document shall be construed  as requiring Agent, Term Loan Servicer or any Lender to resort to any part of the Collateral for the  satisfaction of any of Credit Parties’ obligations under the Financing Documents in preference or priority  to any other Collateral, and Agent may seek satisfaction out of all of the Collateral or any part thereof, in  its absolute discretion in respect of Credit Parties’ obligations under the Financing Documents.  In  addition, Agent shall have the right from time to time to partially foreclose upon any Collateral in any  manner and for any amounts secured by the Financing Documents then due and payable as determined  by Agent in its sole discretion, including, without limitation, the following circumstances:  (i) in the event  any Credit Party defaults beyond any applicable grace period in the payment of one or more scheduled  payments of principal and/or interest, Agent may foreclose upon all or any part of the Collateral to recover  such delinquent payments, or (ii) in the event Agent elects to accelerate less than the entire outstanding  principal balance of the Loans, Agent may foreclose all or any part of the Collateral to recover so much  of the principal balance of the Loans as Lender may accelerate and such other sums secured by one or  more of the Financing Documents as Agent may elect.  Notwithstanding one or more partial foreclosures,  any unforeclosed Collateral shall remain subject to the Financing Documents to secure payment of sums  secured by the Financing Documents and not previously recovered.  (f) To the fullest extent permitted by law, each Credit Party, for itself and its  successors and assigns, waives in the event of foreclosure of any or all of the Collateral any equitable  right otherwise available to any Credit Party which would require the separate sale of any of the Collateral  





 






93  MidCap / Viewray / Credit, Security and Guaranty Agreement               or require Agent, Term Loan Servicer or Lenders to exhaust their remedies against any part of the  Collateral before proceeding against any other part of the Collateral; and further in the event of such  foreclosure each Credit Party does hereby expressly consent to and authorize, at the option of Agent, the  foreclosure and sale either separately or together of each part of the Collateral.  Section 10.9 Injunctive Relief.  The parties acknowledge and agree that, in the event of a breach  or threatened breach of any Credit Party’s obligations under any Financing Documents, Agent, Term Loan  Servicer and Lenders may have no adequate remedy in money damages and, accordingly, shall be entitled  to an injunction (including, without limitation, a temporary restraining order, preliminary injunction, writ  of attachment, or order compelling an audit) against such breach or threatened breach, including, without  limitation, maintaining any cash management and collection procedure described herein.  However, no  specification in this Agreement of a specific legal or equitable remedy shall be construed as a waiver or  prohibition against any other legal or equitable remedies in the event of a breach or threatened breach of  any provision of this Agreement.  Each Credit Party waives, to the fullest extent permitted by law, the  requirement of the posting of any bond in connection with such injunctive relief.  By joining in the  Financing Documents as a Credit Party, each Credit Party specifically joins in this Section as if this  Section were a part of each Financing Document executed by such Credit Party.  Section 10.10 Marshalling; Payments Set Aside.  Neither Agent, Term Loan Servicer nor any  Lender shall be under any obligation to marshal any assets in payment of any or all of the Obligations.  To  the extent that any Credit Party makes any payment or Agent enforces its Liens or Agent, Term Loan  Servicer, or any Lender exercises its right of set-off, and such payment or the proceeds of such enforcement  or set-off is subsequently invalidated, declared to be fraudulent or preferential, set aside, or required to be  repaid by anyone, then to the extent of such recovery, the Obligations or part thereof originally intended to  be satisfied, and all Liens, rights and remedies therefor, shall be revived and continued in full force and  effect as if such payment had not been made or such enforcement or set-off had not occurred.  ARTICLE 11 - AGENT  Section 11.1 Appointment and Authorization.    (a) Each Lender hereby irrevocably appoints and authorizes Agent to enter into each  of the Financing Documents to which it is a party (other than this Agreement) on its behalf and to take  such actions as Agent on its behalf and to exercise such powers under the Financing Documents as are  delegated to Agent by the terms thereof, together with all such powers as are reasonably incidental thereto.    (b) Each Lender hereby irrevocably appoints and authorizes Term Loan Servicer to  take such actions as Term Loan Servicer on its behalf and to exercise such powers under the Financing  Documents as are delegated to Term Loan Servicer by the terms thereof, together with all such powers  as are reasonably incidental thereto.  (c) Subject to the terms of Section 11.16 and to the terms of the other Financing  Documents, Agent is authorized and empowered to amend, modify, or waive any provisions of this  Agreement or the other Financing Documents on behalf of Lenders and Term Loan Servicer.    (d) The provisions of this Article 11 are solely for the benefit of Agent, Term Loan  Servicer and Lenders and neither any Borrower nor any other Credit Party shall have any rights as a third  party beneficiary of any of the provisions hereof.  In performing its functions and duties under this  Agreement, Agent and Term Loan Servicer shall each act solely as agent of Lenders and does not assume  





 






94  MidCap / Viewray / Credit, Security and Guaranty Agreement               and shall not be deemed to have assumed any obligation toward or relationship of agency or trust with or  for any Borrower or any other Credit Party.    (e) Each of Agent and Term Loan Servicer may, upon any term or condition it  specifies, delegate or exercise any of its rights, powers and remedies under, and delegate or perform any  of its duties or any other action with respect to, any Financing Document by or through any agents,  servicers, trustees, investment managers, employees, attorney-in-fact or any other Person (including any  Lender).  Any such Person shall benefit from this Article 11 to the extent provided by Agent or Term  Loan Servicer, as applicable.  Section 11.2 Agents and Affiliates.  Agent and Term Loan Servicer shall have the same rights  and powers under the Financing Documents as any other Lender and may exercise or refrain from exercising  the same as though it were not Agent, and Agent and Term Loan Servicer and their respective Affiliates  may lend money to, invest in and generally engage in any kind of business with each Credit Party or  Affiliate of any Credit Party as if it were not Agent or Term Loan Servicer, as applicable, hereunder.  Section 11.3 Action by Agents.  The duties of Agent and Term Loan Servicer shall be  mechanical and administrative in nature.  Neither Agent nor Term Loan Servicer shall have by reason of  this Agreement a fiduciary relationship in respect of any Lender.  Nothing in this Agreement or any of the  Financing Documents is intended to or shall be construed to impose upon Agent or Term Loan Servicer  any obligations in respect of this Agreement or any of the Financing Documents except as expressly set  forth herein or therein.  Section 11.4 Consultation with Experts.  Agent and Term Loan Servicer may consult with legal  counsel, independent public accountants and other experts selected by it and shall not be liable for any  action taken or omitted to be taken by it in good faith in accordance with the advice of such counsel,  accountants or experts.  Section 11.5 Liability of Agent.  None of Agent, Term Loan Servicer nor any of their directors,  officers, agents, trustees, investment managers, servicers or employees shall be liable to any Lender for any  action taken or not taken by it in connection with the Financing Documents, except that Agent and Term  Loan Servicer shall each be liable with respect to its specific duties set forth hereunder but only to the extent  of its own gross negligence or willful misconduct in the discharge thereof as determined by a final non- appealable judgment of a court of competent jurisdiction.  None of Agent, Term Loan Servicer nor any of  their directors, officers, agents, trustees, investment managers, servicers or employees shall be responsible  for or have any duty to ascertain, inquire into or verify (a) any statement, warranty or representation made  in connection with any Financing Document or any borrowing hereunder; (b) the performance or  observance of any of the covenants or agreements specified in any Financing Document; (c) the satisfaction  of any condition specified in any Financing Document; (d) the validity, effectiveness, sufficiency or  genuineness of any Financing Document, any Lien purported to be created or perfected thereby or any other  instrument or writing furnished in connection therewith; (e) the existence or non-existence of any Default  or Event of Default; or (f) the financial condition of any Credit Party.  Neither Agent nor Term Loan  Servicer shall incur any liability by acting in reliance upon any notice, consent, certificate, statement, or  other writing (which may be a bank wire, facsimile or electronic transmission or similar writing) believed  by it to be genuine or to be signed by the proper party or parties.  Neither Agent nor Term Loan Servicer  shall be liable for any apportionment or distribution of payments made by it in good faith and if any such  apportionment or distribution is subsequently determined to have been made in error the sole recourse of  any Lender to whom payment was due but not made, shall be to recover from other Lenders any payment  in excess of the amount to which they are determined to be entitled (and such other Lenders hereby agree  to return to such Lender any such Erroneous Payments received by them).  





 






95  MidCap / Viewray / Credit, Security and Guaranty Agreement               Section 11.6 Indemnification.  Each Lender shall, in accordance with its Pro Rata Share,  indemnify Agent and Term Loan Servicer (to the extent not reimbursed by Credit Parties) upon demand  against any cost, expense (including counsel fees and disbursements), claim, demand, action, loss or  liability (except such as result from Agent’s or Term Loan Servicer’s, as applicable, gross negligence or  willful misconduct as determined by a final non-appealable judgment of a court of competent jurisdiction)  that Agent or Term Loan Servicer, as applicable, may suffer or incur in connection with the Financing  Documents or any action taken or omitted by Agent or Term Loan Servicer, as applicable, hereunder or  thereunder.  If any indemnity furnished to Agent or Term Loan Servicer for any purpose shall, in the opinion  of Agent or Term Loan Servicer (as applicable), be insufficient or become impaired, Agent or Term Loan  Servicer, as applicable, may call for additional indemnity and cease, or not commence, to do the acts  indemnified against even if so directed by Required Lenders until such additional indemnity is furnished.  Section 11.7 Right to Request and Act on Instructions.  Agent and Term Loan Servicer may at  any time request instructions from Lenders with respect to any actions or approvals which by the terms of  this Agreement or of any of the Financing Documents Agent or Term Loan Servicer is permitted or desires  to take or to grant, and if such instructions are promptly requested, Agent or Term Loan Servicer, as  applicable, shall be absolutely entitled to refrain from taking any action or to withhold any approval and  shall not be under any liability whatsoever to any Person for refraining from any action or withholding any  approval under any of the Financing Documents until it shall have received such instructions from Required  Lenders or all or such other portion of the Lenders as shall be prescribed by this Agreement.  Without  limiting the foregoing, no Lender shall have any right of action whatsoever against Agent or Term Loan  Servicer as a result of Agent or Term Loan Servicer, as applicable, acting or refraining from acting under  this Agreement or any of the other Financing Documents in accordance with the instructions of Required  Lenders (or all or such other portion of the Lenders as shall be prescribed by this Agreement) and,  notwithstanding the instructions of Required Lenders (or such other applicable portion of the Lenders),  neither Agent nor Term Loan Servicer shall have any obligation to take any action if it believes, in good  faith, that such action would violate applicable Law or exposes Agent or Term Loan Servicer, as appliable,  to any liability for which it has not received satisfactory indemnification in accordance with the provisions  of Section 11.6.  Section 11.8 Credit Decision.  Each Lender acknowledges that it has, independently and without  reliance upon Agent, Term Loan Servicer or any other Lender, and based on such documents and  information as it has deemed appropriate, made its own credit analysis and decision to enter into this  Agreement.  Each Lender also acknowledges that it will, independently and without reliance upon Agent,  Term Loan Servicer or any other Lender, and based on such documents and information as it shall deem  appropriate at the time, continue to make its own credit decisions in taking or not taking any action under  the Financing Documents.  Section 11.9 Collateral Matters.  Lenders irrevocably authorize Agent, at its option and in its  discretion, to (a) release any Lien granted to or held by Agent under any Security Document (i) upon  termination of the Revolving Loan Commitment and Term Loan Commitment and payment in full of all  Obligations; or (ii) constituting property sold or disposed of as part of or in connection with any disposition  permitted under any Financing Document (it being understood and agreed that Agent may conclusively rely  without further inquiry on a certificate of a Responsible Officer as to the sale or other disposition of property  being made in full compliance with the provisions of the Financing Documents); and (b) subordinate any  Lien granted to or held by Agent under any Security Document to a Permitted Lien that is allowed to have  priority over the Liens granted to or held by Agent pursuant to the definition of “Permitted Liens”.  Upon  request by Agent at any time, Lenders will confirm Agent’s authority to release and/or subordinate  particular types or items of Collateral pursuant to this Section 11.9.  





 






96  MidCap / Viewray / Credit, Security and Guaranty Agreement               Section 11.10 Agency for Perfection.  Agent and each Lender hereby appoint each other Lender  as agent for the purpose of perfecting Agent’s security interest in assets which, in accordance with the  Uniform Commercial Code in any applicable jurisdiction, can be perfected by possession or control.  Should  any Lender (other than Agent) obtain possession or control of any such assets, such Lender shall notify  Agent thereof, and, promptly upon Agent’s request therefor, shall deliver such assets to Agent or in  accordance with Agent’s instructions or transfer control to Agent in accordance with Agent’s instructions.   Each Lender agrees that it will not have any right individually to enforce or seek to enforce any Security  Document or to realize upon any Collateral for the Loan unless instructed to do so by Agent (or consented  to by Agent), it being understood and agreed that such rights and remedies may be exercised only by Agent.  Section 11.11 Notice of Default.  Agent shall not be deemed to have knowledge or notice of the  occurrence of any Default or Event of Default except with respect to defaults in the payment of principal,  interest and fees required to be paid to Agent for the account of Lenders, unless Agent shall have received  written notice from a Lender or a Credit Party referring to this Agreement, describing such Default or Event  of Default and stating that such notice is a “notice of default”.  Agent will notify each Lender of its receipt  of any such notice.  Agent shall take such action with respect to such Default or Event of Default as may  be requested by Required Lenders (or all or such other portion of the Lenders as shall be prescribed by this  Agreement) in accordance with the terms hereof.  Unless and until Agent has received any such request,  Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect  to such Default or Event of Default as it shall deem advisable or in the best interests of Lenders.  Section 11.12 Assignment by Agent; Resignation of Agent; Successor Agent.  (a) Agent and/or Term Loan Servicer may at any time assign its rights, powers,  privileges and duties hereunder to (i) another Lender or an Affiliate of Agent or any Lender or any  Approved Fund, or (ii) any Eligible Assignee to whom Agent or Term Loan Servicer, in its capacity as a  Lender, has assigned (or will assign, in conjunction with such assignment of agency rights hereunder)  50% or more of its Loan, in each case without the consent of the Lenders or Credit Parties.  Following  any such assignment, Agent or Term Loan Servicer, as appliable, shall endeavor to give notice to the  Lenders and Borrowers.  Failure to give such notice shall not affect such assignment in any way or cause  the assignment to be ineffective.  An assignment by Agent or Term Loan Servicer, as appliable, pursuant  to this subsection (a) shall not be deemed a resignation by Agent for purposes of subsection (b) below.  (b) Without limiting the rights of Agent or Term Loan Servicer to designate an  assignee pursuant to subsection (a) above, Agent or Term Loan Servicer may at any time give notice of  its resignation to the Lenders and Borrowers.  Upon receipt of any such notice of resignation, Required  Lenders shall have the right to appoint a successor Agent or Term Loan Servicer, as applicable, which  successor Agent or Term Loan Servicer shall be an Eligible Assignee.  If no such successor shall have  been so appointed by Required Lenders and shall have accepted such appointment within ten (10)  Business Days after the retiring Agent or Term Loan Servicer gives notice of its resignation, then the  retiring Agent or Term Loan Servicer may on behalf of the Lenders, appoint a successor Agent or Term  Loan Servicer; provided, however, that if Agent or Term Loan Servicer shall notify Borrowers and the  Lenders that no Person has accepted such appointment, then such resignation shall nonetheless become  effective in accordance with such notice from Agent or Term Loan Servicer that no Person has accepted  such appointment and, from and following delivery of such notice, (i) the retiring Agent or Term Loan  Servicer shall be discharged from its duties and obligations hereunder and under the other Financing  Documents, and (ii) all payments, communications and determinations provided to be made by, to or  through Agent or Term Loan Servicer, as applicable, shall instead be made by or to each Lender directly,  until such time as Required Lenders appoint a successor Agent or Term Loan Servicer, as appliable, as  provided for above in this paragraph.    





 






97  MidCap / Viewray / Credit, Security and Guaranty Agreement               (c) Upon (i) an assignment permitted by subsection (a) above, or (ii) the acceptance  of a successor’s appointment as Agent or Term Loan Servicer, as applicable, pursuant to subsection (b)  above, such successor shall succeed to and become vested with all of the rights, powers, privileges and  duties of the retiring (or retired) Agent or Term Loan Servicer, and the retiring Agent or Term Loan  Servicer shall be discharged from all of its duties and obligations hereunder and under the other Financing  Documents (if not already discharged therefrom as provided above in this paragraph).  The fees payable  by Borrowers to a successor Agent or Term Loan Servicer shall be the same as those payable to its  predecessor unless otherwise agreed between Borrowers and such successor.  After the retiring Agent’s  resignation or retiring Term Loan Servicer’s resignation (as applicable) hereunder and under the other  Financing Documents, the provisions of this Article 11 and Section 11.12 shall continue in effect for the  benefit of such retiring Agent or Term Loan Servicer and its sub-agents in respect of any actions taken or  omitted to be taken by any of them while the retiring Agent or Term Loan Servicer was acting or was  continuing to act as Agent or Term Loan Servicer, as applicable.  Section 11.13 Payment and Sharing of Payment.  (a) Revolving Loan Advances, Payments and Settlements; Interest and Fee  Payments.  (i) Agent shall have the right, on behalf of Revolving Lenders to disburse  funds to Borrowers for all Revolving Loans requested or deemed requested by Borrowers pursuant  to the terms of this Agreement.  Agent shall be conclusively entitled to assume, for purposes of the  preceding sentence, that each Revolving Lender, other than any Non-Funding Lenders, will fund  its Pro Rata Share of all Revolving Loans requested by Borrowers.  Each Revolving Lender shall  reimburse Agent on demand, in accordance with the provisions of the immediately following  paragraph, for all funds disbursed on its behalf by Agent pursuant to the first sentence of this clause  (i), or if Agent so requests, each Revolving Lender will remit to Agent its Pro Rata Share of any  Revolving Loan before Agent disburses the same to a Borrower.  If Agent elects to require that  each Revolving Lender make funds available to Agent, prior to a disbursement by Agent to a  Borrower, Agent shall advise each Revolving Lender by telephone, facsimile or e-mail of the  amount of such Revolving Lender’s Pro Rata Share of the Revolving Loan requested by such  Borrower no later than noon (Eastern time) on the date of funding of such Revolving Loan, and  each such Revolving Lender shall pay Agent on such date such Revolving Lender’s Pro Rata Share  of such requested Revolving Loan, in same day funds, by wire transfer to the Revolving Loan  Payment Account, or such other account as may be identified by Agent to Revolving Lenders from  time to time.  If any Lender fails to pay the amount of its Pro Rata Share of any funds advanced by  Agent pursuant to the first sentence of this clause (i) within one (1) Business Day after Agent’s  demand, Agent shall promptly notify Borrower Representative, and Borrowers shall immediately  repay such amount to Agent.  Any repayment required by Borrowers pursuant to this Section 11.13  shall be accompanied by accrued interest thereon from and including the date such amount is made  available to a Borrower to but excluding the date of payment at the rate of interest then applicable  to Revolving Loans.  Nothing in this Section 11.13 or elsewhere in this Agreement or the other  Financing Documents shall be deemed to require Agent to advance funds on behalf of any Lender  or to relieve any Lender from its obligation to fulfill its commitments hereunder or to prejudice any  rights that Agent or any Borrower may have against any Lender as a result of any default by such  Lender hereunder.  (ii) On a Business Day of each week as selected from time to time by Agent,  or more frequently (including daily), if Agent so elects (each such day being a “Settlement Date”),  Agent will advise each Revolving Lender by telephone, facsimile or e-mail of the amount of each  





 






98  MidCap / Viewray / Credit, Security and Guaranty Agreement               such Revolving Lender’s percentage interest of the Revolving Loan balance as of the close of  business of the Business Day immediately preceding the Settlement Date.  In the event that  payments are necessary to adjust the amount of such Revolving Lender’s actual percentage interest  of the Revolving Loans to such Lender’s required percentage interest of the Revolving Loan  balance as of any Settlement Date, the Revolving Lender from which such payment is due shall  pay Agent, without setoff or discount, to the Payment Account before 1:00 p.m. (Eastern time) on  the Business Day following the Settlement Date the full amount necessary to make such adjustment.   Any obligation arising pursuant to the immediately preceding sentence shall be absolute and  unconditional and shall not be affected by any circumstance whatsoever.  In the event settlement  shall not have occurred by the date and time specified in the second preceding sentence, interest  shall accrue on the unsettled amount at the rate of interest then applicable to Revolving Loans.  (iii) On each Settlement Date, Agent shall advise each Revolving Lender by  telephone, facsimile or e-mail of the amount of such Revolving Lender’s percentage interest of  principal, interest and fees paid for the benefit of Revolving Lenders with respect to each applicable  Revolving Loan, to the extent of such Revolving Lender’s Revolving Loan Exposure with respect  thereto, and shall make payment to such Revolving Lender before 1:00 p.m. (Eastern time) on the  Business Day following the Settlement Date of such amounts in accordance with wire instructions  delivered by such Revolving Lender to Agent, as the same may be modified from time to time by  written notice to Agent; provided, however, that, in the case such Revolving Lender is a Defaulted  Lender, Agent shall be entitled to set off the funding short-fall against that Defaulted Lender’s  respective share of all payments received from any Borrower.  (iv) On the Closing Date, Agent, on behalf of Lenders, may elect to advance  to Borrowers the full amount of the initial Loans to be made on the Closing Date prior to receiving  funds from Lenders, in reliance upon each Lender’s commitment to make its Pro Rata Share of  such Loans to Borrowers in a timely manner on such date.  If Agent elects to advance the initial  Loans to Borrower in such manner, Agent shall be entitled to receive all interest that accrues on the  Closing Date on each Lender’s Pro Rata Share of such Loans unless Agent receives such Lender’s  Pro Rata Share of such Loans before 3:00 p.m. (Eastern time) on the Closing Date.   (v) It is understood that for purposes of advances to Borrowers made pursuant  to this Section 11.13, Agent will be using the funds of Agent, and pending settlement, (A) all funds  transferred from the Revolving Loan Payment Account to the outstanding Revolving Loans shall  be applied first to advances made by Agent to Borrowers pursuant to this Section 11.13, and (B)  all interest accruing on such advances shall be payable to Agent.    (vi) The provisions of this Section 11.13(a) shall be deemed to be binding upon  Agent and Lenders notwithstanding the occurrence of any Default or Event of Default, or any  insolvency or bankruptcy proceeding pertaining to any Borrower or any other Credit Party.  (b) Term Loan Payments.  Payments of principal, interest and fees in respect of the  Term Loans will be settled on the date of receipt if received by Term Loan Servicer on the last Business  Day of a month or on the Business Day immediately following the date of receipt if received on any day  other than the last Business Day of a month; provided, however, that, in the case such Lender is a  Defaulted Lender, Term Loan Servicer shall be entitled to set off the funding short-fall against that  Defaulted Lender’s respective share of all payments received from any Credit Party.  





 






99  MidCap / Viewray / Credit, Security and Guaranty Agreement               (c) Return of Payments.  (i) If Agent or Term Loan Servicer pays an amount to a Lender under this  Agreement in the belief or expectation that a related payment has been or will be received by Agent  or Term Loan Servicer, as applicable, from a Credit Party and such related payment is not received  by Agent, then Agent or Term Loan Servicer, as applicable, will be entitled to recover such amount  from such Lender on demand without setoff, counterclaim or deduction of any kind, together with  interest accruing on a daily basis at the Federal Funds Rate.  (ii) If Agent or Term Loan Servicer determines at any time that any amount  received by Agent or Term Loan Servicer, as applicable, under this Agreement must be returned to  any Credit Party or paid to any other Person pursuant to any insolvency law or otherwise, then,  notwithstanding any other term or condition of this Agreement or any other Financing Document,  Agent or Term Loan Servicer, as applicable, will not be required to distribute any portion thereof  to any Lender.  In addition, each Lender will repay to Agent or Term Loan Servicer, as applicable,  on demand any portion of such amount that Agent or Term Loan Servicer, as applicable, has  distributed to such Lender, together with interest at such rate, if any, as Agent or Term Loan  Servicer, as applicable, is required to pay to any Credit Party or such other Person, without setoff,  counterclaim or deduction of any kind.  (d) Defaulted Lenders.  The failure of any Defaulted Lender to make any payment  required by it hereunder shall not relieve any other Lender of its obligations to make payment, but neither  any other Lender nor Agent nor Term Loan Servicer shall be responsible for the failure of any Defaulted  Lender to make any payment required hereunder.  Notwithstanding anything set forth herein to the  contrary, a Defaulted Lender shall not have any voting or consent rights under or with respect to any  Financing Document or constitute a “Lender” (or be included in the calculation of “Required Lenders”  hereunder) for any voting or consent rights under or with respect to any Financing Document.  (e) Sharing of Payments.  If any Lender shall obtain any payment or other recovery  (whether voluntary, involuntary, by application of setoff or otherwise) on account of any Loan (other than  pursuant to the terms of Section 2.8(d)) in excess of its Pro Rata Share of payments entitled pursuant to  the other provisions of this Section 11.13, such Lender shall purchase from the other Lenders such  participations in extensions of credit made by such other Lenders (without recourse, representation or  warranty) as shall be necessary to cause such purchasing Lender to share the excess payment or other  recovery ratably with each of them; provided, however, that if all or any portion of the excess payment  or other recovery is thereafter required to be returned or otherwise recovered from such purchasing  Lender, such portion of such purchase shall be rescinded and each Lender which has sold a participation  to the purchasing Lender shall repay to the purchasing Lender the purchase price to the ratable extent of  such return or recovery, without interest.  Each Credit Party agrees that any Lender so purchasing a  participation from another Lender pursuant to this clause (e) may, to the fullest extent permitted by law,  exercise all its rights of payment (including pursuant to Section 10.6) with respect to such participation  as fully as if such Lender were the direct creditor of Credit Parties in the amount of such participation).   If under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured claim  in lieu of a setoff to which this clause (e) applies, such Lender shall, to the extent practicable, exercise its  rights in respect of such secured claim in a manner consistent with the rights of the Lenders entitled under  this clause (e) to share in the benefits of any recovery on such secured claim.  Section 11.14 Right to Perform, Preserve and Protect.  If any Credit Party fails to perform any  obligation hereunder or under any other Financing Document, Agent itself may, but shall not be obligated  to, cause such obligation to be performed at Credit Parties’ expense.  Agent is further authorized by the  





 






100  MidCap / Viewray / Credit, Security and Guaranty Agreement               Credit Parties and the Lenders to make expenditures from time to time which Agent, in its reasonable  business judgment, deems necessary or desirable to (a) preserve or protect the business conducted by the  Credit Parties, the Collateral, or any portion thereof, and/or (b) enhance the likelihood of, or maximize the  amount of, repayment of the Loan and other Obligations.  Each Credit Party hereby agrees to reimburse  Agent on demand for any and all costs, liabilities and obligations incurred by Agent pursuant to this  Section 11.14.  Each Lender hereby agrees to indemnify Agent upon demand for any and all costs, liabilities  and obligations incurred by Agent pursuant to this Section 11.14, in accordance with the provisions of  Section 11.6.  Section 11.15 Additional Titled Agents.  Except for rights and powers, if any, expressly reserved  under this Agreement to any co-lead arranger, bookrunner, arranger or to any titled agent named on the  cover page of this Agreement, other than Agent and Term Loan Servicer (collectively, the “Additional  Titled Agents”), and except for obligations, liabilities, duties and responsibilities, if any, expressly assumed  under this Agreement by any Additional Titled Agent, no Additional Titled Agent, in such capacity, has  any rights, powers, liabilities, duties or responsibilities hereunder or under any of the other Financing  Documents.  Without limiting the foregoing, no Additional Titled Agent shall have nor be deemed to have  a fiduciary relationship with any Lender.  At any time that any Lender serving as an Additional Titled Agent  shall have transferred to any other Person (other than any Affiliates) all of its interests in the Loan, such  Lender shall be deemed to have concurrently resigned as such Additional Titled Agent.  Section 11.16 Amendments and Waivers.  (a) No provision of this Agreement or any other Financing Document may be  amended, waived or otherwise modified unless such amendment, waiver or other modification is in  writing and is signed or otherwise approved by Borrowers, the Required Lenders and any other Lender  to the extent required under Section 11.16(b); provided, however, the Fee Letter may be amended, or  rights or privileges thereunder waived, in a writing executed only by the parties thereto.   (b) In addition to the required signatures under Section 11.16(a), no provision of this  Agreement or any other Financing Document may be amended, waived or otherwise modified unless  such amendment, waiver or other modification is in writing and is signed or otherwise approved by the  following Persons:  (i) if any amendment, waiver or other modification would increase a Lender’s  funding obligations in respect of any Loan, by such Lender; and/or  (ii) if the rights or duties of Agent are affected thereby, by Agent; and/or  (iii) if the rights or duties of Term Loan Servicer are affected thereby, by Term  Loan Servicer  provided, however, that, in each of (i) and (ii) above, no such amendment, waiver or other modification  shall, unless signed or otherwise approved in writing by all the Lenders directly affected thereby, (A) reduce  the principal of, rate of interest on or any fees with respect to any Loan or forgive any principal, interest  (other than default interest) or fees (other than late charges) with respect to any Loan; (B) postpone the date  fixed for, or waive, any payment (other than any mandatory prepayment pursuant to Section 2.1(b)(ii)) of  principal of any Loan, or of interest on any Loan (other than default interest) or any fees provided for  hereunder (other than late charges) or the other Financing Documents or postpone the date of termination  of any commitment of any Lender hereunder; (C) change the definition of the term Required Lenders or  the percentage of Lenders which shall be required for Lenders to take any action hereunder; (D) (I) release  





 






101  MidCap / Viewray / Credit, Security and Guaranty Agreement               all or substantially all of the Collateral, (II) authorize any Credit Party to sell or otherwise dispose of all or  substantially all of the Collateral, (III) release any Guarantor of all or any portion of the Obligations or its  Guarantee obligations with respect thereto, (IV) consent to a transfer of any Material Intangible Asset, or  (V) contractually subordinate the Obligations (including any guarantees thereof) or Agent’s Lien on all or  substantially all of the Collateral, except, in each case with respect to this clause (D), as otherwise may be  provided in this Agreement or the other Financing Documents (including in connection with any disposition  permitted hereunder); (E) amend, waive or otherwise modify this Section 11.16(b) or the definitions of the  terms used in this Section 11.16(b) insofar as the definitions affect the substance of this Section 11.16(b);   (F) consent to the assignment, delegation or other transfer by any Credit Party of any of its rights and  obligations under any Financing Document or release any Credit Party of its payment obligations under any  Financing Document, except, in each case with respect to this clause (F), pursuant to a merger or  consolidation permitted pursuant to this Agreement; or (G) amend any of the provisions of Section 10.7 or  amend any of the definitions Pro Rata Share, Revolving Loan Commitment, Term Loan Commitment, Term  Loan Tranche 1 Commitments, Term Loan Tranche 2 Commitments, Revolving Loan Commitment  Amount, Term Loan Commitment Amount, Term Loan Tranche 1 Commitment Amount, Term Loan  Tranche 2 Commitment Amount, Revolving Loan Commitment Percentage, Term Loan Commitment  Percentage or that provide for the Lenders to receive their Pro Rata Shares of any fees, payments, setoffs  or proceeds of Collateral hereunder or any other provision of the Financing Documents requiring pro rata  treatment of the Lenders.  It is hereby understood and agreed that all Lenders shall be deemed directly  affected by an amendment, waiver or other modification of the type described in the preceding clauses (C),  (D), (E), (F) and (G) of the preceding sentence.  Section 11.17 Assignments and Participations.  (a) Assignments.  (i) Any Lender may at any time assign to one or more Eligible Assignees all  or any portion of such Lender’s Loan together with all related obligations of such Lender hereunder.   Except as Agent may otherwise agree, the amount of any such assignment (determined as of the  date of the applicable Assignment Agreement or, if a “Trade Date” is specified in such Assignment  Agreement, as of such Trade Date) shall be in a minimum aggregate amount equal to $1,000,000  or, if less, the assignor’s entire interests in the outstanding Loan; provided, however, that, in  connection with simultaneous assignments to two or more related Approved Funds, such Approved  Funds shall be treated as one assignee for purposes of determining compliance with the minimum  assignment size referred to above.  Credit Parties, Agent and Term Loan Servicer shall be entitled  to continue to deal solely and directly with such Lender in connection with the interests so assigned  to an Eligible Assignee until Agent shall have received and accepted an effective Assignment  Agreement executed, delivered and fully completed by the applicable parties thereto and a  processing fee of $3,500 to be paid by the assigning Lender; provided, however, that only one  processing fee shall be payable in connection with simultaneous assignments to two or more related  Approved Funds.  (ii) From and after the date on which the conditions described above have been  met, (A) such Eligible Assignee shall be deemed automatically to have become a party hereto and,  to the extent of the interests assigned to such Eligible Assignee pursuant to such Assignment  Agreement, shall have the rights and obligations of a Lender hereunder, and (B) the assigning  Lender, to the extent that rights and obligations hereunder have been assigned by it pursuant to  such Assignment Agreement, shall be released from its rights and obligations hereunder (other than  those that survive termination pursuant to Section 13.1).  Upon the request of the Eligible Assignee  (and, as applicable, the assigning Lender) pursuant to an effective Assignment Agreement, each  





 






102  MidCap / Viewray / Credit, Security and Guaranty Agreement               Borrower shall execute and deliver to Agent for delivery to the Eligible Assignee (and, as  applicable, the assigning Lender) Notes in the aggregate principal amount of the Eligible  Assignee’s Loan (and, as applicable, Notes in the principal amount of that portion of the principal  amount of the Loan retained by the assigning Lender).  Upon receipt by the assigning Lender of  such Note, the assigning Lender shall return to Borrower Representative any prior Note held by it.  (iii) Agent, acting solely for this purpose as an agent of Borrower, shall  maintain at the office of its servicer located in Bethesda, Maryland a copy of each Assignment  Agreement delivered to it and a register for the recordation of the names and addresses of each  Lender, and the commitments of, and principal amount of the Loan owing to, such Lender pursuant  to the terms hereof (the “Register”). The entries in such Register shall be conclusive, absent  manifest error, and Borrower, Agent, Term Loan Servicer and Lenders may treat each Person  whose name is recorded therein pursuant to the terms hereof as a Lender hereunder for all purposes  of this Agreement, notwithstanding notice to the contrary. Such Register shall be available for  inspection by Borrower, Term Loan Servicer and any Lender, at any reasonable time upon  reasonable prior notice to Agent. Each Lender that sells a participation shall, acting solely for this  purpose as an agent of Borrower maintain a register on which it enters the name and address of  each participant and the principal amounts (and stated interest) of each participant’s interest in the  Obligations (each, a “Participant Register”). The entries in the Participant Registers shall be  conclusive, absent manifest error. Each Participant Register shall be available for inspection by  Borrower, Agent and Term Loan Servicer at any reasonable time upon reasonable prior notice to  the applicable Lender; provided, that no Lender shall have any obligation to disclose all or any  portion of the Participant Register (including the identity of any Participant or any information  relating to a Participant's interest in any commitments, loans, letters of credit or its other obligations  under any Financing Document) to any Person (including Borrower) except to the extent that such  disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation  is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations.  For the  avoidance of doubt, Agent (in its capacity as Agent) and Term Loan Servicer (in its capacity as  Term Loan Servicer) shall have no responsibility for maintaining a Participant Register.   (iv) Notwithstanding the foregoing provisions of this Section 11.17(a) or any  other provision of this Agreement, any Lender may at any time pledge or assign a security interest  in all or any portion of its rights under this Agreement to secure obligations of such Lender,  including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided,  however, that no such pledge or assignment shall release such Lender from any of its obligations  hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.  (v) Notwithstanding the foregoing provisions of this Section 11.17(a) or any  other provision of this Agreement, Agent has the right, but not the obligation, to effectuate  assignments of Loan via an electronic settlement system acceptable to Agent as designated in  writing from time to time to the Lenders by Agent (the “Settlement Service”).  At any time when  Agent elects, in its sole discretion, to implement such Settlement Service, each such assignment  shall be effected by the assigning Lender and proposed assignee pursuant to the procedures then in  effect under the Settlement Service, which procedures shall be consistent with the other provisions  of this Section 11.17(a).  Each assigning Lender and proposed Eligible Assignee shall comply with  the requirements of the Settlement Service in connection with effecting any assignment of Loan  pursuant to the Settlement Service.  With the prior written approval of Agent, Agent’s approval of  such Eligible Assignee shall be deemed to have been automatically granted with respect to any  transfer effected through the Settlement Service.  Assignments and assumptions of the Loan shall  





 






103  MidCap / Viewray / Credit, Security and Guaranty Agreement               be effected by the provisions otherwise set forth herein until Agent notifies Lenders of the  Settlement Service as set forth herein.  (b) Participations.  Any Lender may at any time, without the consent of, or notice  to, any Credit Party, Agent or Term Loan Servicer, sell to one or more Persons (other than any Credit  Party or any Credit Party’s Affiliates) participating interests in its Loan, commitments or other interests  hereunder (any such Person, a “Participant”).  In the event of a sale by a Lender of a participating interest  to a Participant, (i) such Lender’s obligations hereunder shall remain unchanged for all purposes,  (ii) Credit Parties, Agent and Term Loan Servicer shall continue to deal solely and directly with such  Lender in connection with such Lender’s rights and obligations hereunder, and (iii) all amounts payable  by each Credit Party shall be determined as if such Lender had not sold such participation and shall be  paid directly to such Lender.  Each Credit Party agrees that if amounts outstanding under this Agreement  are due and payable (as a result of acceleration or otherwise), each Participant shall be deemed to have  the right of set-off in respect of its participating interest in amounts owing under this Agreement to the  same extent as if the amount of its participating interest were owing directly to it as a Lender under this  Agreement; provided, however, that such right of set-off shall be subject to the obligation of each  Participant to share with Lenders, and Lenders agree to share with each Participant, as provided in  Section 11.5.  (c) Replacement of Lenders.  Within thirty (30) days after: (i) receipt by Agent of  notice and demand from any Lender for payment of additional costs as provided in Section 2.8(h), which  demand shall not have been revoked, (ii) any Credit Party is required to pay any additional amount to any  Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.8(a) through  (h), (iii) any Lender is a Defaulted Lender, and the circumstances causing such status shall not have been  cured or waived; or (iv) any failure by any Lender to consent to a requested amendment, waiver or  modification to any Financing Document in which Required Lenders have already consented to such  amendment, waiver or modification but the consent of each Lender, or each Lender affected thereby, is  required with respect thereto (each relevant Lender in the foregoing clauses (i) through (iv) being an  “Affected Lender”) each of Borrower Representative and Agent may, at its option, notify such Affected  Lender and, in the case of Borrowers’ election, Agent, of such Person’s intention to obtain, at Borrowers’  expense, a replacement Lender (“Replacement Lender”) for such Lender, which Replacement Lender  shall be an Eligible Assignee and, in the event the Replacement Lender is to replace an Affected Lender  described in the preceding clause (iv), such Replacement Lender consents to the requested amendment,  waiver or modification making the replaced Lender an Affected Lender.  In the event Borrowers or Agent,  as applicable, obtains a Replacement Lender within ninety (90) days following notice of its intention to  do so, the Affected Lender shall sell, at par, and assign all of its Loan and funding commitments hereunder  to such Replacement Lender in accordance with the procedures set forth in Section 11.17(a); provided,  however, that (A) Borrowers shall have reimbursed such Lender for its increased costs and additional  payments for which it is entitled to reimbursement under Section 2.8(a) through (h), as applicable, of this  Agreement through the date of such sale and assignment, and (B) Borrowers shall pay to Agent the $3,500  processing fee in respect of such assignment.  In the event that a replaced Lender does not execute an  Assignment Agreement pursuant to Section 11.17(a) within five (5) Business Days after receipt by such  replaced Lender of notice of replacement pursuant to this Section 11.17(c) and presentation to such  replaced Lender of an Assignment Agreement evidencing an assignment pursuant to this  Section 11.17(c), such replaced Lender shall be deemed to have consented to the terms of such  Assignment Agreement, and any such Assignment Agreement executed by Agent, the Replacement  Lender and, to the extent required pursuant to Section 11.17(a), Credit Parties, shall be effective for  purposes of this Section 11.17(c) and Section 11.17(a).  Upon any such assignment and payment, such  replaced Lender shall no longer constitute a “Lender” for purposes hereof, other than with respect to  such rights and obligations that survive termination as set forth in Section 13.1.  





 






104  MidCap / Viewray / Credit, Security and Guaranty Agreement               (d) Credit Party Assignments.  No Credit Party may assign, delegate or otherwise  transfer any of its rights or other obligations hereunder or under any other Financing Document without  the prior written consent of Agent and each Lender.  Section 11.18 Funding and Settlement Provisions Applicable When Non-Funding Lenders Exist.   So long as Required Lenders have not waived the conditions to the funding of Loans set forth in Section 7.2  or Section 2.1, any Lender may deliver a notice to Agent stating that such Lender shall cease making  Revolving Loans or not fund any tranche of the Term Loan, as applicable, due to the non-satisfaction of  one or more conditions to funding Loans set forth in Section 7.2 or Section 2.1, and specifying any such  non-satisfied conditions.  Any Lender delivering any such notice shall become a non-funding Lender (a  “Non-Funding Lender”) for purposes of this Agreement commencing on the Business Day following  receipt by Agent of such notice, and shall cease to be a Non-Funding Lender on the date on which such  Lender has either revoked the effectiveness of such notice or acknowledged in writing to each of Agent the  satisfaction of the condition(s) specified in such notice, or Required Lenders waive the conditions to the  funding of such Loans giving rise to such notice by Non-Funding Lender.  Each Non-Funding Lender shall  remain a Lender for purposes of this Agreement to the extent that such Non-Funding Lender has Revolving  Loan Outstanding in excess of Zero Dollars ($0) or Term Loans outstanding in excess of Zero Dollars ($0);  provided, however, that during any period of time that any Non-Funding Lender exists, and notwithstanding  any provision to the contrary set forth herein, the following provisions shall apply:   (a) For purposes of determining the Pro Rata Share of each Lender under clauses (a)  and (b) of the definition of such term, each Non-Funding Lender shall be deemed to have a Revolving  Loan Commitment Amount and Term Loan Commitment Amount as in effect immediately before such  Lender became a Non-Funding Lender.   (b) Except as provided in clause (a) above, the Revolving Loan Commitment  Amount and Term Loan Commitment Amount of each Non-Funding Lender shall be deemed to be Zero  Dollars ($0).   (c) The Revolving Loan Commitment at any date of determination during such  period shall be deemed to be equal to the sum of (i) the aggregate Revolving Loan Commitment Amounts  of all Lenders, other than the Non-Funding Lenders as of such date plus (ii) the aggregate Revolving  Loan Outstandings of all Non-Funding Lenders as of such date.  (d) The Term Loan Commitment at any date of determination during such period  shall be deemed to be equal to the sum of (i) the aggregate Term Loan Commitment Amounts of all  Lenders, other than the Non-Funding Lenders as of such date plus (ii) the aggregate principal amount  outstanding under the Term Loans of all Non-Funding Lenders as of such date.  (e) Agent shall have no right to make or disburse Revolving Loans for the account  of any Non-Funding Lender pursuant to Section 2.1(b)(i) to pay interest, fees, expenses and other charges  of any Credit Party.  (f) To the extent that Agent applies proceeds of Collateral or other payments  received by Agent to repayment of Revolving Loans or Term Loans pursuant to Section 10.7, such  payments and proceeds shall be applied first in respect of Revolving Loans or Term Loans made at the  time any Non-Funding Lenders exist, and second in respect of all other outstanding Revolving Loans or  Term Loans, as applicable.  





 






105  MidCap / Viewray / Credit, Security and Guaranty Agreement               ARTICLE 12 – GUARANTY  Section 12.1 Guaranty.  Each Guarantor hereby unconditionally guarantees, as a primary  obligor and not merely as a surety, jointly and severally with each other Guarantor when and as due, whether  at maturity, by acceleration, by notice of prepayment or otherwise, the due and punctual performance of all  of the Obligations, including payment in full of the principal, accrued but unpaid interest and all other  amounts due and owing to the Agent, Term Loan Servicer and Lenders under the Loans and (b) indemnifies  each Lender immediately on demand against any cost, loss or liability suffered by such Lender if any  obligations guaranteed by it are or become unenforceable, invalid, voided, avoid or illegal, the amount of  which such cost, loss or liability shall be equal to the amount which such Lender would otherwise be entitled  to recover. Each payment made by any Guarantor pursuant to this Article 12 shall be made in lawful money  of the United States in immediately available funds.  Section 12.2 Payment of Amounts Owed.  The Guarantee hereunder is an absolute,  unconditional and continuing guarantee of the full and punctual payment and performance of all of the  Obligations and not of their collectability only and is in no way conditioned upon any requirement that the  Agent, Term Loan Servicer or any Lender first attempt to collect any of the Obligations from any Borrower  or resort to any collateral security or other means of obtaining payment.  In the event of any default by  Borrowers in the payment of the Obligations, after the expiration of any applicable cure or grace period,  each Guarantor agrees, on demand by Agent (which demand may be made concurrently with notice to  Borrowers that the Borrowers are in default of their obligations), to pay the Obligations, regardless of any  defense, right of set-off or recoupment or claims which any Borrower or Guarantor may have against Agent,  Term Loan Servicer or Lenders or the holder of the Notes.  All of the remedies set forth in this Agreement,  in any other Financing Document or at law or equity shall be equally available to Agent,  Term Loan  Servicer and Lenders, and the choice by Agent, Term Loan Servicer or Lenders of one such alternative over  another shall not be subject to question or challenge by any Guarantor or any other person, nor shall any  such choice be asserted as a defense, setoff, recoupment or failure to mitigate damages in any action,  proceeding, or counteraction by Agent, Term Loan Servicer or Lenders to recover or seeking any other  remedy under this Guarantee, nor shall such choice preclude Agent, Term Loan Servicer or Lenders from  subsequently electing to exercise a different remedy.    Section 12.3 Certain Waivers by Guarantor.  To the fullest extent permitted by law, each  Guarantor does hereby: waive notice of acceptance of this Agreement by Agent, Term Loan Servicer and  Lenders and any and all notices and demands of every kind which may be required to be given by any  statute, rule or law;   (b) agree to refrain from asserting, until after repayment in full of the Obligations,  any defense, right of set-off, right of recoupment or other claim which such Guarantor may have against  any Borrower;   (c) waive any defense, right of set-off, right of recoupment or other claim which  such Guarantor may have against Agent, Term Loan Servicer, Lenders or the holder of the Notes;   (d) waive any and all rights such Guarantor may have under any anti-deficiency  statute or other similar protections;   (e) waive all rights at law or in equity to seek subrogation, contribution,  indemnification or any other form of reimbursement or repayment from any Borrower, any other  Guarantor or any other person or entity now or hereafter primarily or secondarily liable for any of the  Obligations until the Obligations have been paid in full;   





 






106  MidCap / Viewray / Credit, Security and Guaranty Agreement               (f) waive presentment for payment, demand for payment, notice of nonpayment or  dishonor, protest and notice of protest, diligence in collection and any and all formalities which otherwise  might be legally required to charge such Guarantor with liability;   (g) waive the benefit of all appraisement, valuation, marshalling, forbearance, stay,  extension, redemption, homestead, exemption and moratorium laws now or hereafter in effect;   (h) waive any defense based on the incapacity, lack of authority, death or disability  of any other person or entity or the failure of Agent, Term Loan Servicer or Lenders to file or enforce a  claim against the estate of any other person or entity in any administrative, bankruptcy or other  proceeding;   (i) waive any defense based on an election of remedies by Agent, Term Loan  Servicer or Lenders, whether or not such election may affect in any way the recourse, subrogation or  other rights of such Guarantor against any Borrower, any other Guarantor or any other person in  connection with the Obligations;   (j) waive any defense based on the failure of the Agent or Lenders to (i) provide  notice to such Guarantor of a sale or other disposition of any of the security for any of the Obligations,  or (ii) conduct such a sale or disposition in a commercially reasonable manner;   (k) waive any defense based on the negligence of Agent, Term Loan Servicer or  Lenders in administering this Agreement or the other Financing Documents (including, but not limited  to, the failure to perfect any security interest in any Collateral), or taking or failing to take any action in  connection therewith, provided, however, that such waiver shall not apply to the gross negligence or  willful misconduct of the Agent, Term Loan Servicer or Lenders, as determined by the final, non- appealable decision of a court having proper jurisdiction;   (l) waive the defense of expiration of any statute of limitations affecting the liability  of such Guarantor hereunder or the enforcement hereof;   (m) waive any right to file any Claim (as defined below) as part of, and any right to  request consolidation of any action or proceeding relating to a Claim with, any action or proceeding filed  or maintained by Agent, Term Loan Servicer or Lenders to collect any Obligations of such Guarantor to  Agent, Term Loan Servicer or Lenders hereunder or to exercise any rights or remedies available to Agent,  Term Loan Servicer or Lenders under the Financing Documents, at law, in equity or otherwise;   (n) agree that neither Agent, Term Loan Servicer nor Lenders shall have any  obligation to obtain, perfect or retain a security interest in any property to secure any of the Obligations  (including any mortgage or security interest contemplated by the Financing Documents), or to protect or  insure any such property;   (o) waive any obligation Agent, Term Loan Servicer or Lenders may have to  disclose to such Guarantor any facts the Agent, Term Loan Servicer or Lenders now or hereafter may  know or have reasonably available to it regarding the Borrowers or Borrowers’ financial condition,  whether or not the Agent, Term Loan Servicer or Lenders have a reasonable opportunity to communicate  such facts or have reason to believe that any such facts are unknown to such Guarantor or materially  increase the risk to such Guarantor beyond the risk such Guarantor intends to assume hereunder;   





 






107  MidCap / Viewray / Credit, Security and Guaranty Agreement               (p) agree that neither Agent, Term Loan Servicer  nor Lenders shall be liable in any  way for any decrease in the value or marketability of any property securing any of the Obligations which  may result from any action or omission of the Agent, Term Loan Servicer or Lenders in enforcing any  part of this Agreement;   (q) waive any defense based on any invalidity, irregularity or unenforceability, in  whole or in part, of any one or more of the Financing Documents;   (r) waive any defense based on any change in the composition of Borrowers, and   (s) waive any defense based on any representations and warranties made by such  Guarantor herein or by any Borrower herein or in any of the Financing Documents.    For purposes of this section, the term “Claim” shall mean any claim, action or cause of action, defense,  counterclaim, set-off or right of recoupment of any kind or nature against the Agent, Term Loan Servicer  or Lenders, its officers, directors, employees, agents, members, actuaries, accountants, trustees or attorneys,  or any affiliate of the Agent, Term Loan Servicer or Lenders in connection with the making, closing,  administration, collection or enforcement by the Agent, Term Loan Servicer or Lenders of the Obligations.  Section 12.4 Guarantor’s Obligations Not Affected by Modifications of Financing Documents.   Each Guarantor further agrees that such Guarantor’s liability as guarantor shall not be impaired or affected  by any renewals or extensions which may be made from time to time, with or without the knowledge or  consent of Guarantor for the time for payment of interest or principal or by any forbearance or delay in  collecting interest or principal hereunder, or by any waiver by Agent or Lenders under this Agreement or  any other Financing Documents, or by Agent’s, Term Loan Servicer’s or Lenders’ failure or election not to  pursue any other remedies it may have against any Borrower or Guarantor, or by any change or modification  in the Notes, this Agreement or any other Financing Document, or by the acceptance by Agent or Lenders  of any additional security or any increase, substitution or change therein, or by the release by Agent or  Lenders of any security or any withdrawal thereof or decrease therein, or by the application of payments  received from any source to the payment of any obligation other than the Obligations even though Agent,  Term Loan Servicer or Lenders might lawfully have elected to apply such payments to any part or all of  the Obligations, it being the intent hereof that, subject to Agent’s, Term Loan Servicer’s or Lenders’  compliance with the terms of this Article 12 and the Financing Documents, each Guarantor shall remain  liable for the payment of the Obligations, until the Obligations have been paid in full, notwithstanding any  act or thing which might otherwise operate as a legal or equitable discharge of a surety.  Each Guarantor  further understands and agrees that Agent or Lenders may at any time enter into agreements with Borrowers  to amend, modify and/or increase the principal amount of, interest rate applicable to or other economic and  non-economic terms of this Agreement or the other Financing Documents, and may waive or release any  provision or provisions of this Agreement or the other Financing Documents, and, with reference to such  instruments, may make and enter into any such agreement or agreements as Agent, Lenders and Borrowers  may deem proper and desirable, without in any manner impairing this Guarantee or any of Agent’s, Term  Loan Servicer’s or Lenders’ rights hereunder or each Guarantor’s obligations hereunder, and each  Guarantor’s obligations hereunder shall apply to the this Agreement and other Financing Documents as so  amended, modified, extended, renewed or increased.  Section 12.5 Reinstatement; Deficiency.  This guaranty shall continue to be effective or be  reinstated (as the case may be) if at any time payment of all or any part of any sum payable pursuant to this  Agreement or any other Financing Document is rescinded or otherwise required to be returned by Agent,  Term Loan Servicer or Lenders upon the insolvency, bankruptcy, dissolution, liquidation, or reorganization  of any Borrower, or upon or as a result of the appointment of a receiver, intervenor, custodian or conservator  





 






108  MidCap / Viewray / Credit, Security and Guaranty Agreement               of or trustee or similar officer for, any Borrower or any substantial part of its property, or otherwise, all as  though such payment to Agent, Term Loan Servicer or Lenders had not been made, regardless of whether  Agent, Term Loan Servicer or Lenders contested the order requiring the return of such payment.  In the  event of the foreclosure of the Financing Documents and of a deficiency, each Guarantor hereby promises  and agrees forthwith to pay the amount of such deficiency notwithstanding the fact that recovery of said  deficiency against Borrowers would not be allowed by applicable law; however, the foregoing shall not be  deemed to require that Agent, Term Loan Servicer or Lenders institute foreclosure proceedings or otherwise  resort to or exhaust any other collateral or security prior to or concurrently with enforcing this guaranty.  Section 12.6 Subordination of Borrowers’ Obligations to Guarantors; Claims in Bankruptcy.  (a) Any indebtedness of any Borrower to any Guarantor (including, but not limited  to, any right of such Guarantor to a return of any capital contributed to a Borrower), whether now or  hereafter existing, is hereby subordinated to the payment of the Obligations.  Each Guarantor agrees that,  until the Obligations have been paid in full, such Guarantor will not seek, accept, or retain for its own  account, any payment from any Borrower on account of such subordinated debt.  Any payments to any  Guarantor on account of such subordinated debt shall be collected and received by such Guarantor in trust  for Agent and Lenders and shall be immediately paid over to Agent, for the benefit of Agent and Lenders,  on account of the Obligations without impairing or releasing the obligations of such Guarantor hereunder.  (b) Each Guarantor shall promptly file in any bankruptcy or other proceeding in  which the filing of claims is required by law, all claims and proofs of claims that such Guarantor may  have against any Borrower or any other Guarantor and does hereby assign to Agent or its nominee (and  will, upon request of Agent, reconfirm in writing the assignment to Agent or its nominee of) all rights of  such Guarantor under such claims.  If such Guarantor does not file any such claim, Agent, as  attorney-in-fact for such Guarantor, is hereby irrevocably authorized to do so in the name of such  Guarantor, or in Agent’s discretion, to assign the claim to a designee and cause proof of claim to be filed  in the name of Agent’s designee.  In all such cases, whether in administration, bankruptcy or otherwise,  the person or persons authorized to pay such claim shall pay to Agent, for the benefit of Agent and  Lenders, the full amount thereof and, to the full extent necessary for that purpose, each Guarantor hereby  assigns to the Lenders all of such Guarantor’s rights to any such payments or distributions to which such  Guarantor would otherwise be entitled, such assignment being a present and irrevocable assignment of  all such rights.  Section 12.7 Maximum Liability.  The provisions of this Article 12 are severable, and in any  action or proceeding involving any state corporate law, or any state, federal or foreign bankruptcy,  insolvency, reorganization or other law affecting the rights of creditors generally, if the obligations of any  Guarantor under this Article 12 would otherwise be held or determined to be avoidable, invalid or  unenforceable on account of the amount of such Guarantor’s liability under this Article 12, then,  notwithstanding any other provision of this Article 12 to the contrary, the amount of such liability shall,  without any further action by the Guarantors or the Agent, Term Loan Servicer or any Lender, be  automatically limited and reduced to the highest amount that is valid and enforceable as determined in such  action or proceeding (such highest amount determined hereunder being the relevant Guarantor’s  “Maximum Liability”). This Section 12.7 with respect to the Maximum Liability of each Guarantor is  intended solely to preserve the rights of the Agent, Term Loan Servicer and the Lenders to the maximum  extent not subject to avoidance under applicable law, and no Guarantor nor any other Person shall have any  right or claim under this Section 12.7 with respect to such Maximum Liability, except to the extent  necessary so that the obligations of any Guarantor hereunder shall not be rendered voidable under applicable  law. Each Guarantor agrees that the Obligations may at any time and from time to time exceed the  Maximum Liability of each Guarantor without impairing this guaranty or affecting the rights and remedies  





 






109  MidCap / Viewray / Credit, Security and Guaranty Agreement               of the Agent, Term Loan Servicer or the Lenders hereunder, provided that, nothing in this sentence shall be  construed to increase any Guarantor’s obligations hereunder beyond its Maximum Liability.  Section 12.8 Guarantor’s Investigation.  Each Guarantor acknowledges receipt of a copy of each  of this Agreement and the other Financing Documents. Each Guarantor has made an independent  investigation of the other Credit Parties and of the financial condition of the other Credit Parties. Neither  Agent, Term Loan Servicer nor any Lender has made and neither Agent, Term Loan Servicer nor any  Lender does make any representations or warranties as to the income, expense, operation, finances or any  other matter or thing affecting any Credit Party nor has Agent, Term Loan Servicer or any Lender made  any representations or warranties as to the amount or nature of the Obligations of any Credit Party to which  this Article 12 applies as specifically herein set forth, nor has Agent, Term Loan Servicer or any Lender or  any officer, agent or employee of Agent, Term Loan Servicer or any Lender or any representative thereof,  made any other oral representations, agreements or commitments of any kind or nature, and each Guarantor  hereby expressly acknowledges that no such representations or warranties have been made and such  Guarantor expressly disclaims reliance on any such representations or warranties.  Section 12.9 Termination.  The provisions of this Article 12 shall remain in effect until this  Agreement has terminated pursuant to its terms and all Obligations (other than inchoate indemnity  obligations for which no claim has been made and any other obligations which, by their terms, are to survive  the termination of this Agreement) have been paid and satisfied in full.  Section 12.10 Representative.  Each Guarantor hereby designates Borrower Representative and  its representatives and agents on its behalf for the purpose of giving and receiving all notices and other  consents hereunder or under any other Financing Document and taking all other actions on behalf of such  Guarantor under the Financing Documents.  Borrower Representative hereby accepts such appointment.  Section 12.11 Guarantor Acknowledgement.  Without limiting the generality of the foregoing,  each Guarantor, by its acceptance of this Guaranty, hereby confirms that it is a Subsidiary of a Borrower  and each Guarantor further confirms that it will materially benefit from the Loans made hereunder and the  parties hereto intend that this Guaranty not constitute a fraudulent transfer or conveyance for purposes of  the Bankruptcy Law (as defined below), the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent  Transfer Act or any similar federal, state or foreign law to the extent applicable to this Guaranty. In  furtherance of that intention, the liabilities of each Guarantor under this Guaranty (the “Liabilities”) shall  be limited to the maximum amount that will, after giving effect to such maximum amount and all other  contingent and fixed liabilities of such Guarantor that are relevant under such laws, and after giving effect  to any collections from, rights to receive contribution from or payments made by or on behalf of any other  Person with respect to the Liabilities, result in the Liabilities of such Guarantor under this Guaranty not  constituting a fraudulent transfer or conveyance. For purposes hereof, “Bankruptcy Law” means the  United States Bankruptcy Code, or any similar federal, state or foreign law for the relief of debtors. This  paragraph with respect to the maximum liability of each Guarantor is intended solely to preserve the rights  of the holders, to the maximum extent not subject to avoidance under applicable law, and neither a  Guarantor nor any other Person shall have any right or claim under this paragraph with respect to such  maximum liability, except to the extent necessary so that the obligations of a Guarantor hereunder shall not  be rendered voidable under applicable law. Each Guarantor agrees that the Obligations guaranteed  hereunder may at any time and from time to time exceed the maximum liability of such Guarantor without  impairing this Guaranty or affecting the rights and remedies of the holders hereunder; provided that nothing  in this sentence shall be construed to increase such Guarantor’s obligations hereunder beyond its maximum  liability.  





 






110  MidCap / Viewray / Credit, Security and Guaranty Agreement               ARTICLE 13 - MISCELLANEOUS  Section 13.1 Survival.  All agreements, representations and warranties made herein and in every  other Financing Document shall survive the execution and delivery of this Agreement and the other  Financing Documents.  The provisions of Section 2.10 and Articles 11 and 13 shall survive the payment of  the Obligations (both with respect to any Lender and all Lenders collectively) and any termination of this  Agreement and any judgment with respect to any Obligations, including any final foreclosure judgment  with respect to any Security Document, and no unpaid or unperformed, current or future, Obligations will  merge into any such judgment.  Section 13.2 No Waivers.  No failure or delay by Agent, Term Loan Servicer or any Lender in  exercising any right, power or privilege under any Financing Document shall operate as a waiver thereof  nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise  of any other right, power or privilege.  The rights and remedies herein and therein provided shall be  cumulative and not exclusive of any rights or remedies provided by law.  Any reference in any Financing  Document to the “continuing” nature of any Event of Default shall not be construed as establishing or  otherwise indicating that any Borrower or any other Credit Party has the independent right to cure any such  Event of Default, but is rather presented merely for convenience should such Event of Default be waived  in accordance with the terms of the applicable Financing Documents.  Section 13.3 Notices.  (a) All notices, requests and other communications to any party hereunder shall be in  writing (including prepaid overnight courier, email or similar writing) and shall be given to such party at  its address or e-mail address set forth below or on the signature pages hereof (or, in the case of any such  Lender who becomes a Lender after the date hereof, in an Assignment Agreement or in a notice delivered  to Borrower Representative and Agent by the assignee Lender forthwith upon such assignment) or at such  other address or e-mail address as such party may hereafter specify for the purpose by notice to Agent  and Borrower Representative; provided, however, that notices, requests or other communications shall be  permitted by electronic means only in accordance with the provisions of Section 13.3(b) and (c).  Each  such notice, request or other communication shall be effective (i) if given by electronic means, in  accordance with the provisions of Section 13.3(b) and (c), or (ii) if given by mail, prepaid overnight  courier or any other means, when received or when receipt is refused at the applicable address specified  by this Section 13.3(a).  If to any Credit Party:  Viewray, as Borrower Representative  1099 18th Street, Ste 3000  Denver, CO 80202  Attn: Zachary W. Stassen, Chief Financial Officer  Email: zstassen@viewray.com    With a copy to:    Viewray, as Borrower Representative  1099 18th Street, Ste 3000  Denver, CO 80202  Attn: Robert S. McCormack, Chief Legal Officer  Email: rmccormack@viewray.com  





 






111  MidCap / Viewray / Credit, Security and Guaranty Agreement                 If to Agent or to MCF (or any of its Affiliates or Approved Funds) as a Lender:  MidCap Funding IV Trust  c/o MidCap Financial Services, LLC, as servicer  7255 Woodmont Ave, Suite 300  Bethesda, MD 20814  Attn: Account Manager for Viewray transaction  Email:  notices@midcapfinancial.com  With a copy to:  MidCap Funding IV Trust  c/o MidCap Financial Services, LLC, as servicer  7255 Woodmont Ave, Suite 300  Bethesda, MD 20814  Attn: Legal  Email:  legalnotices@midcapfinancial.com  If to Term Loan Servicer:   MidCap Financial Trust  c/o MidCap Financial Services, LLC, as servicer  7255 Woodmont Ave, Suite 300  Bethesda, MD 20814  Attn: Account Manager for Viewray transaction  Email:  notices@midcapfinancial.com  With a copy to:  MidCap Financial Trust  c/o MidCap Financial Services, LLC, as servicer  7255 Woodmont Ave, Suite 300  Bethesda, MD 20814  Attn: Legal  Email:  legalnotices@midcapfinancial.com  (b) Notices and other communications to the parties hereto may be delivered or  furnished by electronic communication (including e-mail and Internet or intranet websites) pursuant to  procedures approved from time to time by Agent, provided, however, that the foregoing shall not apply  to notices sent directly to any Lender if such Lender has notified Agent that it is incapable of receiving  notices by electronic communication.  Agent, Term Loan Servicer or Borrower Representative may, in  their discretion, agree to accept notices and other communications to them hereunder by electronic  communications pursuant to procedures approved by it, provided, however, that approval of such  procedures may be limited to particular notices or communications.  (c) Unless Agent otherwise prescribes, (i) notices and other communications sent to  an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgment from the  intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other  written acknowledgment), and (ii) notices or communications posted to an Internet or intranet website  





 






112  MidCap / Viewray / Credit, Security and Guaranty Agreement               shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as  described in the foregoing clause (i) of notification that such notice or communication is available and  identifying the website address therefor, provided, however, that if any such notice or other  communication is not sent or posted during normal business hours, such notice or communication shall  be deemed to have been sent at the opening of business on the next Business Day.  Section 13.4 Severability.  In case any provision of or obligation under this Agreement or any  other Financing Document shall be invalid, illegal or unenforceable in any jurisdiction, the validity, legality  and enforceability of the remaining provisions or obligations, or of such provision or obligation in any other  jurisdiction, shall not in any way be affected or impaired thereby.  Section 13.5 Headings.  Headings and captions used in the Financing Documents (including the  Exhibits, Schedules and Annexes hereto and thereto) are included for convenience of reference only and  shall not be given any substantive effect.  Section 13.6 Confidentiality.    (a) Agent, Term Loan Servicer and each Lender shall hold all non-public  information regarding the Credit Parties and their respective businesses identified as such by Credit  Parties and obtained by Agent, Term Loan Servicer or any Lender pursuant to the requirements hereof in  accordance with such Person’s customary procedures for handling information of such nature, except that  disclosure of such information may be made (i) to their respective agents, employees, Subsidiaries,  Affiliates, attorneys, auditors, professional consultants, rating agencies, insurance industry associations  and portfolio management services, (ii) to prospective transferees or purchasers of any interest in the  Loans, Agent, Term Loan Servicer or a Lender, provided, however, that any such Persons are bound by  obligations of confidentiality, (iii) as required by applicable Law, subpoena, judicial order or similar order  and in connection with any litigation, (iv) as may be required in connection with the examination, audit  or similar investigation of such Person, (v) as Agent, Term Loan Servicer or any Lender considers  appropriate in exercising remedies under the Financing Documents or at any time an Event of Default  exists hereunder, and (v) to a Person that is a trustee, investment advisor or investment manager, collateral  manager, servicer (including any Term Loan Servicer), noteholder or secured party in a Securitization (as  hereinafter defined) in connection with the administration, servicing and reporting on the assets serving  as collateral for such Securitization. For the purposes of this Section, “Securitization” means (A) the  pledge of the Loans as collateral security for loans to a Lender, or (B) a public or private offering by a  Lender or any of its Affiliates or their respective successors and assigns, of securities which represent an  interest in, or which are collateralized, in whole or in part, by the Loans.  Confidential information shall  include only such information identified as such at the time provided to Agent and shall not include  information that either:  (y) is in the public domain, or becomes part of the public domain after disclosure  to such Person through no fault of such Person, or (z) is disclosed to such Person by a Person other than  a Credit Party, provided, however, Agent does not have actual knowledge that such Person is prohibited  from disclosing such information.  The obligations of Agent, Term Loan Servicer and Lenders under this  Section 13.6 shall supersede and replace the obligations of Agent, Term Loan Servicer and Lenders under  any confidentiality agreement in respect of this financing executed and delivered by Agent, Term Loan  Servicer or any Lender prior to the date hereof.  Section 13.7 Waiver of Consequential and Other Damages.  To the fullest extent permitted by  applicable law, no Credit Party shall assert, and each Credit Party hereby waives, any claim against any  Indemnitee (as defined below), on any theory of liability, for special, indirect, consequential or punitive  damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of this  Agreement, any other Financing Document or any agreement or instrument contemplated hereby or thereby,  





 






113  MidCap / Viewray / Credit, Security and Guaranty Agreement               the transactions contemplated hereby or thereby, any Loan or the use of the proceeds thereof.  No  Indemnitee shall be liable for any damages arising from the use by unintended recipients of any information  or other materials distributed by it through telecommunications, electronic or other information  transmission systems in connection with this Agreement or the other Financing Documents or the  transactions contemplated hereby or thereby.  Section 13.8 GOVERNING LAW; SUBMISSION TO JURISDICTION.    (a) THIS AGREEMENT, EACH NOTE AND EACH OTHER FINANCING  DOCUMENT, AND ALL DISPUTES AND OTHER MATTERS RELATING HERETO OR THERETO  OR ARISING THEREFROM (WHETHER SOUNDING IN CONTRACT LAW, TORT LAW OR  OTHERWISE), SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN  ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO  CONFLICTS OF LAWS PRINCIPLES (OTHER THAN SECTION 5-1401 OF THE GENERAL  OBLIGATIONS LAW).  (b) EACH PARTY HERETO HEREBY CONSENTS TO THE JURISDICTION  OF ANY STATE OR FEDERAL COURT LOCATED IN THE STATE OF NEW YORK IN THE CITY  OF NEW YORK, BOROUGH OF MANHATTAN, AND IRREVOCABLY AGREES THAT ALL  ACTIONS OR PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE  OTHER FINANCING DOCUMENTS SHALL BE LITIGATED IN SUCH COURTS.  EACH PARTY  HERETO EXPRESSLY SUBMITS AND CONSENTS TO THE JURISDICTION OF THE  AFORESAID COURTS AND WAIVES ANY DEFENSE OF FORUM NON CONVENIENS. EACH  PARTY HERETO HEREBY WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS AND  AGREES THAT ALL SUCH SERVICE OF PROCESS MAY BE MADE UPON SUCH PARTY BY  CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT REQUESTED, ADDRESSED TO SUCH  PARTY AT THE ADDRESS SET FORTH IN THIS AGREEMENT AND SERVICE SO MADE  SHALL BE COMPLETE TEN (10) DAYS AFTER THE SAME HAS BEEN POSTED.  Section 13.9 WAIVER OF JURY TRIAL.   EACH CREDIT PARTY, AGENT, TERM  LOAN SERVICER, AND THE LENDERS HEREBY IRREVOCABLY WAIVES ANY AND ALL  RIGHT TO TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING ARISING OUT OF OR  RELATING TO THE FINANCING DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED  THEREBY AND AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED  BEFORE A COURT AND NOT BEFORE A JURY.  EACH CREDIT PARTY, AGENT, TERM LOAN  SERVICER, AND EACH LENDER ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL  INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH HAS RELIED ON  THE WAIVER IN ENTERING INTO THIS AGREEMENT AND THE OTHER FINANCING  DOCUMENTS, AND THAT EACH WILL CONTINUE TO RELY ON THIS WAIVER IN THEIR  RELATED FUTURE DEALINGS.  EACH CREDIT PARTY, AGENT, TERM LOAN SERVICER AND  EACH LENDER WARRANTS AND REPRESENTS THAT IT HAS HAD THE OPPORTUNITY OF  REVIEWING THIS JURY WAIVER WITH LEGAL COUNSEL, AND THAT IT KNOWINGLY AND  VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS.  Section 13.10 Publication; Advertisement.  (a) Publication.  No Credit Party will directly or indirectly publish, disclose or  otherwise use in any public disclosure, advertising material, promotional material, press release or  interview, any reference to the name, logo or any trademark of MCF or any of its Affiliates or any  reference to this Agreement or the financing evidenced hereby, in any case except (i) as required by Law,  





 






114  MidCap / Viewray / Credit, Security and Guaranty Agreement               subpoena or judicial or similar order, in which case the applicable Credit Party shall give Agent prior  written notice of such publication or other disclosure, or (ii) with MCF’s prior written consent.  (b) Advertisement.  Each Lender and each Credit Party hereby authorizes MCF to  publish the name of such Lender and Credit Party, the existence of the financing arrangements referenced  under this Agreement, the primary purpose and/or structure of those arrangements, the amount of credit  extended under each facility, the title and role of each party to this Agreement, and the total amount of  the financing evidenced hereby in any “tombstone”, comparable advertisement or press release which  MCF elects to submit for publication.  In addition, each Lender and each Credit Party agrees that MCF  may provide lending industry trade organizations with information necessary and customary for inclusion  in league table measurements after the Closing Date.  With respect to any of the foregoing, MCF shall  provide Borrowers with an opportunity to review and confer with MCF regarding the contents of any  such tombstone, advertisement or information, as applicable, prior to its submission for publication and,  following such review period, MCF may, from time to time, publish such information in any media form  desired by MCF, until such time that Borrowers shall have requested MCF cease any such further  publication.  Section 13.11 Counterparts; Integration.  This Agreement and the other Financing Documents  may be signed in any number of counterparts, each of which shall be an original, with the same effect as if  the signatures thereto and hereto were upon the same instrument.  Signatures by facsimile or by electronic  mail delivery of an electronic version of any executed signature page shall bind the parties hereto.  In  furtherance of the foregoing, the words “execution”, “signed”, “signature”, “delivery” and words of like  import in or relating to any document to be signed in connection with this Agreement and the transactions  contemplated hereby or thereby shall be deemed to include Electronic Signatures, deliveries or the keeping  of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a  manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system,  as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic  Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records  Act, or any other similar state laws based on the Uniform Electronic Transactions Act.  As used herein,  “Electronic Signature” means an electronic sound, symbol, or process attached to, or associated with, a  contract or other record and adopted by a Person with the intent to sign, authenticate or accept such contract  or other record. This Agreement and the other Financing Documents constitute the entire agreement and  understanding among the parties hereto and supersede any and all prior agreements and understandings,  oral or written, relating to the subject matter hereof.  Section 13.12 No Strict Construction.  The parties hereto have participated jointly in the  negotiation and drafting of this Agreement.  In the event an ambiguity or question of intent or interpretation  arises, this Agreement shall be construed as if drafted jointly by the parties hereto and no presumption or  burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provisions  of this Agreement.  Section 13.13 Lender Approvals.  Unless expressly provided herein to the contrary (including  any approvals, consents or waiver that may be granted or withheld in Agent’s Permitted Discretion), any  approval, consent, waiver or satisfaction of Agent, Term Loan Servicer or Lenders with respect to any  matter that is the subject of this Agreement, the other Financing Documents may be granted or withheld by  Agent, Term Loan Servicer and Lenders in their sole and absolute discretion and credit judgment.  Section 13.14 Expenses; Indemnity  





 






115  MidCap / Viewray / Credit, Security and Guaranty Agreement               (a) Except with respect to Indemnified Taxes, Other Taxes and Excluded Taxes,  which shall be governed exclusively by Section 2.8, Credit Parties hereby agree to promptly pay (i) all  reasonable costs and expenses of Agent, Term Loan Servicer and SVB (including, without limitation, the  fees, costs and expenses of counsel to, and independent appraisers and consultants retained by Agent,  subject to the limitations set forth herein) in connection with the examination, review, due diligence  investigation, documentation, negotiation, closing and syndication of the transactions contemplated by  the Financing Documents, in connection with the performance by Agent or Term Loan Servicer of its  rights and remedies under the Financing Documents and in connection with the continued administration  of the Financing Documents including (A) any amendments, modifications, consents and waivers to  and/or under any and all Financing Documents, and (B) any periodic public record searches conducted  by or at the request of Agent (including, without limitation, title investigations, UCC searches, fixture  filing searches, judgment, pending litigation and tax lien searches and searches of applicable corporate,  limited liability, partnership and related records concerning the continued existence, organization and  good standing of certain Persons); (ii) without limitation of the preceding clause (i), all reasonable costs  and expenses of Agent in connection with the creation, perfection and maintenance of Liens pursuant to  the Financing Documents other than disputes solely among Lenders and/or Agent (other than any claims  against such person in its capacity or in fulfilling its role as Agent, arranger or any similar role hereunder)  to the extent such disputes do not arise from any act or omission of any Credit Party or of any Affiliate  of a Credit Party; (iii) without limitation of the preceding clause (i), all costs and expenses of Agent and/or  Term Loan Servicer in connection with (A) protecting, storing, insuring, handling, maintaining or selling  any Collateral, (B) any litigation, dispute, suit or proceeding relating to any Financing Document, and  (C) any workout, collection, bankruptcy, insolvency and other enforcement proceedings under any and  all of the Financing Documents; (iv) without limitation of the preceding clause (i), all reasonable costs  and expenses of Agent in connection with Agent’s reservation of funds in anticipation of the funding of  the initial Loans to be made hereunder; and (v) all costs and expenses incurred by Lenders in connection  with any litigation, dispute, suit or proceeding relating to any Financing Document, other than disputes  solely among Lenders and/or Agent and/or Term Loan Servicer (other than any claims against such  person in its capacity or in fulfilling its role as Agent, Term Loan Servicer, arranger or any similar role  hereunder) to the extent such disputes do not arise from any act or omission of any Credit Party or of any  Affiliate of a Credit Party, and in connection with any workout, collection, bankruptcy, insolvency and  other enforcement proceedings under any and all Financing Documents, whether or not Agent, Term  Loan Servicer or Lenders are a party thereto.    (b) Each Credit Party hereby agrees to indemnify, pay and hold harmless Agent,  Term Loan Servicer and Lenders and the officers, directors, employees, trustees, agents, investment  advisors and investment managers, collateral managers, servicers, and counsel of Agent, Term Loan  Servicer and Lenders (collectively called the “Indemnitees”) from and against any and all liabilities,  obligations, losses, damages, penalties, actions, judgments, suits, claims, costs, expenses and  disbursements of any kind or nature whatsoever (including the documented out-of-pocket fees and  disbursements of counsel for such Indemnitee) in connection with any investigative, response, remedial,  administrative or judicial matter or proceeding, whether or not such Indemnitee shall be designated a  party thereto and including any such proceeding initiated by or on behalf of a Credit Party, and the  reasonable expenses of investigation by engineers, environmental consultants and similar technical  personnel and any commission, fee or compensation claimed by any broker (other than any broker  retained by Agent or Lenders) asserting any right to payment for the transactions contemplated hereby,  which may be imposed on, incurred by or asserted against such Indemnitee as a result of or in connection  with the transactions contemplated hereby or by the other Financing Documents (including (i)(A) as a  direct or indirect result of the presence on or under, or escape, seepage, leakage, spillage, discharge,  emission or release from, any property now or previously owned, leased or operated by a Credit Party,  any Subsidiary or any other Person of any Hazardous Materials, (B) arising out of or relating to the offsite  





 






116  MidCap / Viewray / Credit, Security and Guaranty Agreement               disposal of any materials generated or present on any such property, or (C) arising out of or resulting  from the environmental condition of any such property or the applicability of any governmental  requirements relating to Hazardous Materials, whether or not occasioned wholly or in part by any  condition, accident or event caused by any act or omission of a Credit Party or any Subsidiary, and  (ii) proposed and actual extensions of credit under this Agreement) and the use or intended use of the  proceeds of the Loans, except that Credit Parties shall have no obligation hereunder to an Indemnitee  with respect to any liability resulting from the gross negligence or willful misconduct of such Indemnitee,  as determined by a final non-appealable judgment of a court of competent jurisdiction.  To the extent that  the undertaking set forth in the immediately preceding sentence may be unenforceable, Credit Parties  shall contribute the maximum portion which it is permitted to pay and satisfy under applicable Law to  the payment and satisfaction of all such indemnified liabilities incurred by the Indemnitees or any of  them.  This Section 13.14(b) shall not apply with respect to Taxes other than any Taxes that represent  liabilities, obligations, losses, damages, claims etc. arising from any non-Tax claim.  (c) Notwithstanding any contrary provision in this Agreement, the obligations of  Credit Parties under this Section 13.14 shall survive the payment in full of the Obligations and the  termination of this Agreement. NO INDEMNITEE SHALL BE RESPONSIBLE OR LIABLE TO THE  CREDIT PARTIES OR TO ANY OTHER PARTY TO ANY FINANCING DOCUMENT, ANY  SUCCESSOR, ASSIGNEE OR THIRD PARTY BENEFICIARY OR ANY OTHER PERSON  ASSERTING CLAIMS DERIVATIVELY THROUGH SUCH PARTY, FOR INDIRECT, PUNITIVE,  EXEMPLARY OR CONSEQUENTIAL DAMAGES WHICH MAY BE ALLEGED AS A RESULT OF  CREDIT HAVING BEEN EXTENDED, SUSPENDED OR TERMINATED UNDER THIS  AGREEMENT OR ANY OTHER FINANCING DOCUMENT OR AS A RESULT OF ANY OTHER  TRANSACTION CONTEMPLATED HEREUNDER OR THEREUNDER.  Section 13.15 RESERVED.    Section 13.16 Reinstatement.  This Agreement shall remain in full force and effect and continue  to be effective should any petition or other proceeding be filed by or against any Credit Party for liquidation  or reorganization, should any Credit Party become insolvent or make an assignment for the benefit of any  creditor or creditors or should an interim receiver, receiver, receiver and manager or trustee be appointed  for all or any significant part of any Credit Party’s assets, and shall continue to be effective or to be  reinstated, as the case may be, if at any time payment and performance of the Obligations, or any part  thereof, is, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or  returned by any obligee of the Obligations, whether as a fraudulent preference reviewable transaction or  otherwise, all as though such payment or performance had not been made.  In the event that any payment,  or any part thereof, is rescinded, reduced, restored or returned, the Obligations shall be reinstated and  deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned.  Section 13.17 Successors and Assigns.  This Agreement shall be binding upon and inure to the  benefit of the Credit Parties and Agent, Term Loan Servicer and each Lender and their respective successors  and permitted assigns.  Section 13.18 USA PATRIOT Act Notification.  Agent (for itself and not on behalf of any  Lender), Term Loan Servicer (for itself and not on behalf of any Lender), and each Lender hereby notifies  Credit Parties that pursuant to the requirements of the USA PATRIOT Act, it is required to obtain, verify  and record certain information and documentation that identifies Credit Parties, which information includes  the name and address of the Credit Parties and such other information that will allow Agent, Term Loan  Servicer, or such Lender, as applicable, to identify Credit Parties in accordance with the USA PATRIOT  Act.  





 






117  MidCap / Viewray / Credit, Security and Guaranty Agreement               Section 13.19 Acknowledgement and Consent to Bail-In of Affected Financial Institutions.   Notwithstanding anything to the contrary in any Financing Document or in any other agreement,  arrangement or understanding among any such parties, each party hereto acknowledges that any liability of  any Affected Financial Institution arising under any Financing Document, to the extent such liability is  unsecured, may be subject to the Write-Down and Conversion Powers of the applicable Resolution  Authority and agrees and consents to, and acknowledges and agrees to be bound by:  (a) the application of any Write-Down and Conversion Powers by the applicable  Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party  hereto that is an Affected Financial Institution; and  (b) the effects of any Bail-In Action on any such liability, including, if applicable:  (i) a reduction in full or in part or cancellation of any such liability;  (ii) a conversion of all, or a portion of, such liability into shares or other  instruments of ownership in such Affected Financial Institution, its parent undertaking, or a bridge  institution that may be issued to it or otherwise conferred on it, and that such shares or other  instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability  under this Agreement or any other Financing Document; or  (iii) the variation of the terms of such liability in connection with the exercise  of the Write-Down and Conversion Powers of the applicable Resolution Authority.  Section 13.21 [Reserved].    Section 13.22 Erroneous Payments.  (a) Each Lender and any other party hereto hereby severally agrees that if (i) the  Agent or Term Loan Servicer notifies (which such notice shall be conclusive absent manifest error) such  Lender (or the Lender which is an Affiliate of a Lender) or any other Person that has received funds from  the Agent, the Term Loan Servicer or any of their Affiliates, either for its own account or on behalf of a  Lender (each such recipient, a “Payment Recipient”) that the Agent or Term Loan Servicer, as  applicable, has determined in its sole discretion that any funds received by such Payment Recipient were  erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient  (whether or not known to such Payment Recipient) or (ii) any Payment Recipient receives any payment  from the Agent or Term Loan Servicer (or any of their Affiliates) (x) that is in a different amount than,  or on a different date from, that specified in a notice of payment, prepayment or repayment sent by the  Agent or the Term Loan Servicer (or any of their Affiliates) with respect to such payment, prepayment  or repayment, as applicable, (y) that was not preceded or accompanied by a notice of payment,  prepayment or repayment sent by the Agent or Term Loan Servicer (or any of their Affiliates) with respect  to such payment, prepayment or repayment, as applicable, or (z) that such Payment Recipient otherwise  becomes aware was transmitted or received in error or by mistake (in whole or in part) (any such amounts  specified in clauses (i) or (ii) of this Section 13.22(a), whether received as a payment, prepayment or  repayment of principal, interest, fees, distribution or otherwise; individually and collectively, an  “Erroneous Payment”). Each Payment Recipient agrees that it shall not assert any right or claim to any  Erroneous Payment, and hereby waives any claim, counterclaim, defense or right of set-off or recoupment  with respect to any demand, claim or counterclaim by the Agent or Term Loan Servicer, as applicable,  for the return of any Erroneous Payments, including without limitation waiver of any defense based on  “discharge for value” or any similar doctrine.  





 






118  MidCap / Viewray / Credit, Security and Guaranty Agreement               (b) Without limiting the immediately preceding clause (a), each Payment Recipient  agrees that, in the case of clause (a)(ii) above, it shall promptly notify the Agent and Term Loan Servicer  in writing of such occurrence.  (c) If Agent demands the return of such Erroneous Payment (or a portion thereof),  in the case of either clause (a)(i) or (a)(ii) above, such Erroneous Payment shall at all times remain the  property of the Agent or Term Loan Servicer, as applicable, and shall be segregated by the Payment  Recipient and held in trust for the benefit of the Agent or Term Loan Servicer, as applicable, and upon  demand from the Agent or Term Loan Servicer, as applicable, such Payment Recipient shall (or, shall  cause any Person who received any portion of an Erroneous Payment on its behalf to), promptly, but in  all events no later than two Business Days thereafter, return to the Agent or Term Loan Servicer, as  applicable, the amount of any such Erroneous Payment (or portion thereof) as to which such a demand  was made in same day funds and in the currency so received, together with interest thereon in respect of  each day from and including the date such Erroneous Payment (or portion thereof) was received by such  Payment Recipient to the date such amount is repaid to the Agent or Term Loan Servicer, as applicable,  at the greater of the Federal Funds Rate and a rate determined by the Agent or Term Loan Servicer, as  applicable, in accordance with banking industry rules on interbank compensation from time to time in  effect.  (d) In the event that an Erroneous Payment (or portion thereof) is not recovered by  the Agent or Term Loan Servicer for any reason, after demand therefor by the Agent or Term Loan  Servicer, as applicable, in accordance with immediately preceding clause (c), from any Lender that is a  Payment Recipient or an Affiliate of a Payment Recipient (such unrecovered amount as to such Lender,  an “Erroneous Payment Return Deficiency”), then at the sole discretion of the Agent or Term Loan  Servicer, as applicable, and upon the Agent’s or Term Loan Servicer’s, as applicable, written notice to  such Lender (i) such Lender shall be deemed to have made a cashless assignment of the full face amount  of the portion of its Loans (but not its Term Loan Commitment Amount or Revolving Loan Commitment  Amount, as applicable) with respect to which such Erroneous Payment was made (the “Erroneous  Payment Impacted Loans”) to the Agent or Term Loan Servicer or, at the option of the Agent or Term  Loan Servicer (as applicable), the Agent’s or Term Loan Servicer’s applicable lending affiliate (such  assignee, the “Agent Assignee”) in an amount that is equal to the Erroneous Payment Return Deficiency  (or such lesser amount as the Agent or Term Loan Servicer, as applicable, may specify) (such assignment  of the Loans (but not its Term Loan Commitment Amount or Revolving Loan Commitment Amount, as  applicable) of the Erroneous Payment Impacted Loans, the “Erroneous Payment Deficiency  Assignment”) plus any accrued and unpaid interest on such assigned amount, without further consent or  approval of any party hereto and without any payment by the Agent Assignee as the assignee of such  Erroneous Payment Deficiency Assignment.  Without limitation of its rights hereunder, following the  effectiveness of the Erroneous Payment Deficiency Assignment, the Agent or Term Loan Servicer, as  applicable, may make a cashless reassignment to the applicable assigning Lender of any Erroneous  Payment Deficiency Assignment at any time by written notice to the applicable assigning Lender and  upon such reassignment all of the Loans assigned pursuant to such Erroneous Payment Deficiency  Assignment shall be reassigned to such Lender without any requirement for payment or other  consideration.  The parties hereto acknowledge and agree that (1) any assignment contemplated in this  clause (d) shall be made without any requirement for any payment or other consideration paid by the  applicable assignee or received by the assignor, (2) the provisions of this clause (d) shall govern in the  event of any conflict with the terms and conditions of Section 11.17 and (3) the Agent may reflect such  assignments in the Register without further consent or action by any other Person.  (e) Each party hereto hereby agrees that (x) in the event an Erroneous Payment (or  portion thereof) is not recovered from any Payment Recipient that has received such Erroneous Payment  





 






119  MidCap / Viewray / Credit, Security and Guaranty Agreement               (or portion thereof) for any reason, the Agent or Term Loan Servicer, as applicable (1) shall be subrogated  to all the rights of such Payment Recipient and (2) is authorized to set off, net and apply any and all  amounts at any time owing to such Payment Recipient under any Financing Document, or otherwise  payable or distributable by the Agent or Term Loan Servicer, as applicable, to such Payment Recipient  from any source, against any amount due to the Agent or Term Loan Servicer, as applicable, under this  Section 13.22 or under the indemnification provisions of this Agreement, (y) the receipt of an Erroneous  Payment by a Payment Recipient shall not for the purpose of this Agreement be treated as a payment,  prepayment, repayment, discharge or other satisfaction of any Obligations owed by the Borrower or any  other Credit Party, except, in each case, to the extent such Erroneous Payment is, and solely with respect  to the amount of such Erroneous Payment that is, comprised of funds received by the Agent or the Term  Loan Servicer, as applicable, from the Borrower or any other Credit Party for the purpose of making for  a payment on the Obligations and (z) to the extent that an Erroneous Payment was in any way or at any  time credited as payment or satisfaction of any of the Obligations, the Obligations or any part thereof that  were so credited, and all rights of the Payment Recipient, as the case may be, shall be reinstated and  continue in full force and effect as if such payment or satisfaction had never been received.  (f) Each party’s obligations under this Section 13.22 shall survive the resignation or  replacement of the Agent or Term Loan Servicer, as applicable, or any transfer of right or obligations by,  or the replacement of, a Lender, the termination of the Term Loan Commitments, the Revolving Loan  Commitments or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under  any Financing Document.  (g) The provisions of this Section 13.22 to the contrary notwithstanding, (i) nothing  in this Section 13.22 will constitute a waiver or release of any claim of any party hereunder arising from  any Payment Recipient’s receipt of an Erroneous Payment and (ii) there will only be deemed to be a  recovery of the Erroneous Payment to the extent that Agent or Term Loan Servicer, as applicable, has  received payment from the Payment Recipient in immediately available funds the Erroneous Payment  Return Deficiency, whether directly from the Payment Recipient, as a result of the exercise by Agent or  Term Loan Servicer, as applicable, of its rights of subrogation or set off as set forth above in clause (e)  or as a result of the receipt by Agent Assignee of a payment of the outstanding principal balance of the  Loans assigned to Agent Assignee pursuant to an Erroneous Payment Deficiency Assignment, but  excluding any other amounts in respect thereof (it being agreed that any payments of interest, fees,  expenses or other amounts (other than principal) received by Agent Assignee in respect of the Loans  assigned to Agent Assignee pursuant to an Erroneous Payment Deficiency Assignment shall be the sole  property of the Agent Assignee and shall not constitute a recovery of the Erroneous Payment).   [SIGNATURES APPEAR ON FOLLOWING PAGE(S)]  





 






               MidCap / Viewray / Credit, Security and Guaranty Agreement             IN WITNESS WHEREOF, intending to be legally bound, each of the parties have caused this  Agreement to be executed as of the day and year first above mentioned.  





 






               MidCap / Viewray / Credit, Security and Guaranty Agreement             BORROWERS:                                                                                    VIEWRAY, INC.   By:    Name:    Title:    VIEWRAY TECHNOLOGIES, INC.   By:    Name:    Title:      





 






               MidCap / Viewray / Credit, Security and Guaranty Agreement                                                                             





 






      MidCap / Viewray / Credit, Security and Guaranty Agreement               AGENT:   MIDCAP FUNDING IV TRUST    By:  Apollo Capital Management, L.P.,    its investment manager    By:  Apollo Capital Management GP, LLC,   its general partner       By: ________________________________   Name: Maurice Amsellem   Title:   Authorized Signatory      Address:  c/o MidCap Financial Services, LLC, as servicer  7255 Woodmont Avenue, Suite 300  Bethesda, Maryland 20814  Attn:  Account Manager for Viewray transaction  E-mail:  notices@midcapfinancial.com    with a copy to:    c/o MidCap Financial Services, LLC, as servicer  7255 Woodmont Avenue, Suite 300  Bethesda, Maryland 20814  Attn:  General Counsel  E-mail:  legalnotices@midcapfinancial.com       Revolving Loan Payment Account Designation:  Wells Fargo Bank, N.A. (McLean, VA)  ABA #:  121-000-248  Account Name:  MidCap Funding IV Trust – Collections  Account #:  2000036282803  Attention:  Viewray Facility    





 






      MidCap / Viewray / Credit, Security and Guaranty Agreement               TERM LOAN SERVICER:   MIDCAP FINANCIAL TRUST    By:  Apollo Capital Management, L.P.,    its investment manager    By:  Apollo Capital Management GP, LLC,   its general partner       By: ________________________________   Name: Maurice Amsellem   Title:   Authorized Signatory      Address:  c/o MidCap Financial Services, LLC, as servicer  7255 Woodmont Avenue, Suite 300  Bethesda, Maryland 20814  Attn:  Account Manager for Viewray transaction  E-mail:  notices@midcapfinancial.com    with a copy to:    c/o MidCap Financial Services, LLC, as servicer  7255 Woodmont Avenue, Suite 300  Bethesda, Maryland 20814  Attn:  General Counsel  E-mail:  legalnotices@midcapfinancial.com       Term Loan Payment Account Designation:  SunTrust Bank, N.A.   ABA #:  061000104  Account Name:  MidCap Financial Trust – Collections  Account #:  1000113400435  Attention:  Viewray Facility             





 






      MidCap / Viewray / Credit, Security and Guaranty Agreement                SILICON VALLEY BANK    By:    Name:   Title:       Address:                            





 






      MidCap / Viewray / Credit, Security and Guaranty Agreement               LENDERS:   MIDCAP FINANCIAL TRUST    By:  Apollo Capital Management, L.P.,    its investment manager    By:  Apollo Capital Management GP, LLC,   its general partner       By: ________________________________   Name: Maurice Amsellem   Title:   Authorized Signatory      Address:  c/o MidCap Financial Services, LLC, as servicer  7255 Woodmont Avenue, Suite 300  Bethesda, Maryland 20814  Attn:  Account Manager for Viewray transaction  E-mail:  notices@midcapfinancial.com    with a copy to:    c/o MidCap Financial Services, LLC, as servicer  7255 Woodmont Avenue, Suite 300  Bethesda, Maryland 20814  Attn:  General Counsel  E-mail:  legalnotices@midcapfinancial.com           





 






      MidCap / Viewray / Credit, Security and Guaranty Agreement               LENDERS:   MIDCAP FUNDING H TRUST    By:  Apollo Capital Management, L.P.,    its investment manager    By:  Apollo Capital Management GP, LLC,   its general partner       By: ________________________________   Name: Maurice Amsellem   Title:   Authorized Signatory        MIDCAP FUNDING XIII TRUST    By:  Apollo Capital Management, L.P.,    its investment manager    By:  Apollo Capital Management GP, LLC,   its general partner       By: ________________________________   Name: Maurice Amsellem   Title:   Authorized Signatory               





 






      MidCap / Viewray / Credit, Security and Guaranty Agreement               LENDERS:   MIDCAP FINANCIAL INVESTMENT CORPORATION        By: ________________________________   Name: Kristin Hester   Title:   Chief Legal Officer            





 






                             ANNEXES  ANNEXES  Annex A  Commitment Annex  





 






                         Annex A to Credit Agreement (Commitment Annex)  Lender  Term Loan  Tranche 1  Commitment  Amount  Term Loan  Tranche 1  Commitment  Percentage  Term Loan  Tranche 2  Commitment  Amount  Term Loan  Tranche 2  Commitment  Percentage  MidCap  Financial  Trust  $0.00 0.00% $8,333,333.33  33.33%  MidCap  Funding H  Trust  $5,000,000.00 6.67% $0.00 0.00%  MidCap  Funding XIII  Trust  $20,000,000.00 26.67% $0.00 0.00%  MidCap  Financial  Investment  Corporation  $12,500,000.00 16.67% $4,166,666.67 16.67%  Silicon Valley  Bank $37,500,000.00 50.00% $12,500,000.00 50.00%  TOTALS $75,000,000.00 100% $25,000,000.00 100%        Lender  Revolving Loan  Commitment Amount  Revolving Loan Commitment  Percentage  MidCap Financial Trust $6,750,000.00 45.00%  MidCap Financial Investment  Corporation $750,000.00 5.00%  Silicon Valley Bank $7,500,000.00 50.00%  TOTALS $15,000,000.00 100%