aray-ex106_137.htm

Flexpoint MCLS HOLDINGS LLC

/s/ Daniel Edelman

Daniel Edelman

Authorized Signatory

THIS AMENDMENT NO. 2 TO CREDIT AND SECURITY AGREEMENT (this “Amendment”) is made as of this 28th day of December, 2018 (the “Amendment Effective Date”), by and among MIDCAP FINANCIAL TRUST, a Delaware statutory trust, individually as a Lender, and as Agent, and the financial institutions or other entities from time to time parties hereto, each as a Lender., the lenders (individually, each a “Lender” and collectively, the “Lenders”) party to the Credit Agreement (as defined below), ACCURAY INCORPORATED, a Delaware corporation (“Accuray” or “Borrower Representative”), TOMOTHERAPY INCORPORATED, a Wisconsin corporation, and any additional borrower that may hereafter be added to this Agreement (collectively, “Other Borrowers” and, together with Borrower Representative, each individually as a “Borrower”, and collectively as “Borrowers”).

A.Borrowers, Agent and the Lenders are party to that certain Credit and Security Agreement dated as of December 15, 2017, as previously amended and modified (as amended hereby, and as may be further amended, supplemented, restated or otherwise modified from time to time, the “Credit Agreement”), pursuant to which Lenders agreed to make available to Borrowers a term loan facility in the maximum principal amount of $60,000,000 at any time outstanding. Capitalized terms used but not defined in this Amendment shall have the meanings that are set forth in the Credit Agreement, as amended hereby.

B.Borrowers have requested an advance of a portion of Term Loan Tranche 2 on the date hereof in the original principal amount of $5,000,000 and, in connection therewith, Borrowers further have requested certain amendments to the Credit Agreement all as set forth herein.

C.The parties now agree to amend and modify the Credit Agreement all in accordance with the terms and conditions set forth below.

NOW, THEREFORE, in consideration of the foregoing, the terms and conditions set forth in this Amendment, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Agent, Lenders and Borrowers hereby agree as follows:

(a)New definitions of Alternative Interest Rate Amendment, Alternative Interest Rate Election Event and Second Amendment Effective Date are added to Section 1.1 of the Credit Agreement in alphabetical order to read as follows:

““Alternative Interest Rate Amendment” has the meaning set forth in Section 2.1(a)(iv)(E).”

““Alternative Interest Rate Election Event” has the meaning set forth in Section 2.1(a)(iv)(E).”

(b)The definition of Term Loan Tranche 2 Commitment Termination Date in Section 1.1 of the Credit Agreement is hereby deleted in its entirety and restated to read as follows:

(c)Section 2.1(a)(i)(B) of the Credit Agreement is hereby deleted in its entirety and restated to read as follows:

“(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 severally hereby agrees to make to Borrowers up to two (2) additional advances of the Term Loan on a Business Day occurring after the Closing Date and on or prior to the Term Loan Tranche 2 Commitment Termination Date (each, a “Term Loan Tranche 2 Funding Date”) in an original aggregate principal amount not to exceed the Term Loan Tranche 2 Commitment (the “Term Loan Tranche 2”); provided that the original aggregate principal amount of each advance of Term Loan Tranche 2 shall not be less than $5,000,000 and, if greater, shall be a multiple of $5,000,000. Each such Lender’s obligation to fund each advance of the Term Loan Tranche 2 shall be limited to such Lender’s Term Loan Tranche 2 Commitment Percentage of such requested advance, 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. There shall not be more than two (2) advances of the Term Loan Tranche 2. The first advance of the Term Loan Tranche 2 shall be funded on the Second Amendment Effective Date in the original principal amount of $5,000,000 subject to compliance with the conditions to funding set forth in Section 7.2. The remainder of the Term Loan Tranche 2 Commitment may be funded at any time thereafter on or prior to the Term Loan Tranche 2 Commitment Termination Date subject to compliance with the conditions to funding set forth in Section 7.2. The Term Loan Tranche 2 Commitment shall automatically terminate on the Tranche 2 Commitment Termination Date and the Term Loan Tranche 2 Commitment Amount of each Lender as of such date shall be reduced to zero. Similarly, if the full amount of the Term Loan Tranche 2 Commitment is not funded on the second Term Loan Tranche 2 Funding Date, the unfunded portion of the Term Loan Tranche 2 Commitment after giving effect to the second advance thereof shall thereupon automatically be terminated and the Term Loan Tranche 2 Commitment Amount of each Lender as of such date shall be reduced to zero.”

(d)Section 2.1(a)(i)(C) of the Credit Agreement is hereby deleted in its entirety and restated to read as follows:

“(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 a Notice of Borrowing with respect to each proposed Term Loan advance, such Notice of Borrowing to be delivered no later than noon (Eastern time) two (2) Business Days prior to such proposed borrowing; provided that for the borrowing of the Term Loan on the Closing Date, Borrower may deliver the Notice of Borrowing on the Closing Date; provided further that, with respect to Term Loan

Tranche 2, Borrowers further shall provide Agent written notice of its intent to borrow not less than thirty (30) days prior to such proposed borrowing, which notice shall set forth the proposed date of borrowing, except in connection with the $5,000,000 advance of the Term Loan Tranche 2 on the Second Amendment Effective Date when such prior notice shall not be required.”

(e)A new Section 2.1(a)(iv)(E) of the Credit Agreement is hereby added to read as follows:

“(E) If at any time Agent determines in good faith (which determination shall be conclusive absent manifest error) that either (1) the circumstances set forth in subparagraph (C) of this Section 2.1(a)(iv) have arisen and such circumstances are unlikely to be temporary or (2) the circumstances set forth in subparagraph (C) of this Section 2.1(a)(iv) have not arisen but the supervisor for the administrator of the LIBOR Rate or a Governmental Authority having jurisdiction over Agent has made a public statement identifying a specific date after which the LIBOR Rate shall no longer be used for determining interest rates for loans (in the case of either such clause (1) or (2), an “Alternative Interest Rate Election Event”), Agent (acting at the direction of the Required Lenders) and the Borrower Representative shall endeavor to establish an alternate rate of interest to the LIBOR Rate that gives due consideration to any evolving or the then prevailing market convention for determining a rate of interest for leveraged syndicated loans in the United States at such time (provided, to the extent such prevailing market convention is not administratively feasible for Agent, such successor rate shall be applied in a manner as otherwise reasonably determined by Agent, which application shall in no event result in a higher cost of funding than Loans bearing interest at the Base Rate), and shall enter into an amendment to this Agreement to reflect such alternate rate of interest and such other related changes to this Agreement as may be applicable (an “Alternative Interest Rate Amendment”) (and the Lenders hereby (A) authorize and direct Agent to execute and deliver any such amendment in respect of which the Required Lenders have indicated in writing to Agent that such amendment (and the alternate interest rate specified therein) is satisfactory to the Required Lenders and (B) acknowledge and agree that Agent shall be entitled to all of the exculpations and indemnifications provided for in this Agreement in favor of Agent in executing and delivering any such amendment). Notwithstanding anything to the contrary in Section 11.16, an Alternative Interest Rate Amendment shall become effective without any further action or consent of any other party to this Agreement. To the extent an alternate rate of interest is adopted as contemplated hereby, the approved rate shall be applied in a manner consistent with prevailing market convention; provided that, to the extent such prevailing market convention is not administratively feasible for Agent, such approved rate shall be applied in a manner as otherwise reasonably determined by Agent. From such time as an Alternative Interest Rate Election Event has occurred and continuing until an alternate rate of interest has been determined in accordance with the terms and conditions of this paragraph, (x) any conversion or continuation request that requests the conversion of any Loan to, or continuation of any Loan at, the LIBOR Rate shall be ineffective, and (y) if any Notice of Borrowing requests a Loan at the LIBOR Rate, such Loan

shall be made at the Base Rate; provided that, to the extent such Alternative Interest Rate Election Event is as a result of clause (2) above in this subparagraph (v), then clauses (x) and (y) of this sentence shall apply during such period only if the LIBOR Rate for such Interest Period is not available or published at such time on a current basis. Notwithstanding anything contained herein to the contrary, if such alternate rate of interest as determined in this subparagraph (v) is determined to be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement.”

(f)Section 2.2(g) of the Credit Agreement is hereby deleted in its entirety and restated to read as follows:

“(g)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 Borrowers, by reason of the occurrence of an Event of Default or the acceleration of the Term Loan, or otherwise), or if the Term Loan shall become accelerated and due and payable in full, Borrowers shall pay to Agent, for the benefit of all Lenders committed to make Term Loan advances, 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 each of Term Loan Tranche 1 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: (w) three percent (3.0%) for the first year following the Second Amendment Effective Date, (x) two percent (2.0%) for the second year following the Second Amendment Effective Date, (y) one percent (1.0%) for the third year following the Second Amendment Effective Date and (z) zero percent (0.0%) thereafter. The Prepayment Fee in respect of each advance of Term Loan Tranche 2 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: (w) three percent (3.0%) for the first year following the applicable Term Loan Tranche 2 Funding Date, (x) two percent (2.0%) for the second year following the applicable Term Loan Tranche 2 Funding Date, (y) one percent (1.0%) for the third year following the applicable Term Loan Tranche 2 Funding Date and (z) zero percent (0.0%) 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 and non-refundable as of the Closing Date.”

(g)Section 7.2(d)) of the Credit Agreement is hereby deleted in its entirety and restated to read as follows:

“(d) in the case of any borrowing of the Term Loan Tranche 2, (i) Agent has received written notice of the intent to borrow at least thirty (30) day prior to the date of such borrowing (except in connection with the $5,000,000 advance of the Term Loan Tranche 2 on the Second Amendment Effective Date when such prior notice shall not be required) and a duly executed Notice of Borrowing at least two (2) Business Days prior to such proposed borrowing, and (ii) Agent has received a certificate of a Responsible Officer of Borrower Representative demonstrating, on a pro forma basis after giving effect to the borrowing of the Term Loan Tranche 2, that Borrowers have a Fixed Charge Coverage Ratio of not less than 0.75 to 1.00.”

2.Reaffirmation of Security Interest. Each Borrower hereby expressly acknowledges and agrees that all Liens granted under the Financing Documents extend to and cover all of the obligations of Borrowers and any other Credit Party to Agent and the Lenders, now existing or hereafter arising including, without limitation, those arising in connection with the Credit Agreement, as amended by this Amendment, upon the terms set forth in the Credit Agreement, all of which Liens are hereby ratified, reaffirmed, confirmed and approved.

3.Enforceability. This Amendment constitutes the legal, valid and binding obligation of Borrowers, and is enforceable against Borrowers in accordance with its 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 of the agreements, documents and instruments executed in connection herewith to which a Borrower is a party constitutes the legal, valid and binding obligation of such Borrower, and is enforceable against such Borrower in accordance with its 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.

4.Confirmation of Representations and Warranties. Each Credit Party represents and warrants to Agent and Lenders that, before and after giving effect to this Amendment:

(a)the representations and warranties of each Credit Party contained in the Financing Documents are true, correct and complete in all material respects (or, if such representation or warranty is, by its terms, qualified by materiality, in all respects) on and as of the date hereof, except to the extent that any such representation or warranty relates to a specific date in which case such representation or warranty is true, correct and complete in all material respects (or, if such representation or warranty is, by its terms, qualified by materiality, in all respects) as of such earlier date.

(b)The execution and delivery by each Credit Party of this Amendment and the performance by it of the transactions herein contemplated (i) are and will be within its powers, (ii) have been authorized by all necessary action, (iii) are not and will not conflict with or result in any breach or contravention of, or the creation of any Lien under, any Material Contract to which any Credit Party is a party, any Organizational Document of any Credit Party, any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which any Credit

Party or the property of any Credit Party is subject, (iv) will not violate any applicable Law (including, without limitation, any corporation law, limited liability company law or partnership law of the states in which the Credit Parties are organized), and (v) will not result in a limitation on any material licenses, permits or other governmental approvals applicable to the business, operations or properties of any Credit Party.

(c)This Amendment and all allonges, assignments, instruments, documents, and agreements executed and delivered in connection herewith, are and will be valid, binding, and enforceable against each Credit Party in accordance with their respective terms, except as enforceability may be limited by bankruptcy, insolvency or other similar laws relating to the enforcement of creditors’ rights generally and by general equitable principles.

(d)No Event of Default or Default has occurred and is continuing as of the date of this Amendment.

(e)Both before and after giving effect to (a) the Loans to be made or extended on the date hereof, (b) the disbursement of the proceeds of such Loans pursuant to the instructions of the Credit Parties, (c) the consummation of the transactions contemplated in the Financing Documents, and (e) the payment and accrual of all transaction costs in connection with the foregoing, the Credit Parties, taken as a whole, are Solvent.

5.Conditions to Effectiveness. The obligation of Agent and Lenders to enter into this Amendment shall be subject to the satisfaction of the following conditions precedent:

(a)that Agent shall have a copy of this Amendment, duly executed by Borrowers, Agent and Required Lenders, in form and substance satisfactory to Agent;

(b)that Agent shall have a copy of the corresponding amendment to the Affiliated Credit Agreement duly executed by the parties thereto, in form and substance satisfactory to Agent; and

(c)all fees payable to Agent or any Lender in connection with the execution of this Amendment shall have been paid.

6.Costs, Fees and Expenses. In consideration of Agent’s and each Lender’s agreement to enter into this Amendment, Borrowers shall be responsible for the payment of all reasonable costs, fees and expenses of Agent’s counsel incurred in connection with the preparation of this Amendment and any related documents. All such costs, fees and expenses shall be paid with proceeds of Revolving Loans.

7.Defenses and Setoffs. Each Credit Party hereby represents and warrants that as of the date hereof, there are no defenses, setoffs, claims or counterclaims which could be asserted against the Agent or the Lenders arising from or in connection with the Credit Agreement or any other Financing Document.

8.Affirmation. Except as specifically amended pursuant to the terms hereof, the Credit Agreement and all other Financing Documents (and all covenants, terms, conditions and agreements therein) shall remain in full force and effect, and are hereby ratified and confirmed in all respects by Borrowers. Each Borrower covenants and agrees to comply with all of the terms, covenants and conditions of the Credit Agreement (as amended hereby) and the Financing Documents notwithstanding any prior course of conduct, waivers, releases or other actions or inactions on Agent’s or any Lender’s part which might otherwise constitute or be construed as a waiver of or agreement to such terms, covenants and conditions.

9.No Waiver or Novation. The execution, delivery and effectiveness of this Amendment shall not operate as a waiver of any right, power or remedy of Agent or Lenders, nor constitute a waiver of any provision of the Credit Agreement, the other Financing Documents or any other documents, instruments and agreements executed or delivered in connection with any of the foregoing. Nothing herein is intended or shall be construed as a waiver of any existing Defaults or Events of Default under the Credit Agreement or other Financing Documents or any of Agent’s or Lenders’ rights and remedies in respect of such Defaults or Events of Default. This Amendment (together with any other document executed in connection herewith) is not intended to be, nor shall it be construed as, a novation of the Credit Agreement.

10.Incorporation of Credit Agreement Provisions. The provisions contained in Section 12.8 (Governing Law; Submission to Jurisdiction) and 12.9 (Waiver of Jury Trial) of the Credit Agreement are incorporated herein by reference to the same extent as if reproduced herein in their entirety.

11.Headings. Section headings in this Amendment are included for convenience of reference only and shall not constitute a part of this Amendment for any other purpose.

12.Counterparts. This Amendment may be executed in counterparts, and such counterparts taken together shall be deemed to constitute one and 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.

13.Reference to the Effect on the Financing Documents. Upon the effectiveness of this Amendment, each reference in any Financing Document to “this Amendment,” “hereunder,” “hereof,” “herein” or words of similar import shall mean and be a reference to such Financing Document as modified by this Amendment.

IN WITNESS WHEREOF, intending to be legally bound, the undersigned have executed this Amendment as of the day and year first hereinabove set forth.

AGENT:	MIDCAP FINANCIAL TRUST, a Delaware statutory trust

	By:	Apollo Capital Management, L.P.
	Its:	Investment Manager

		By:	Apollo Capital Management GP, LLC
		Its:	General Partner

		By:		/s/ Maruice Amsellem
				Maurice Amsellem
				Authorized Signatory

LENDERS:	MIDCAP FINANCIAL TRUST, a Delaware statutory trust

	By:	Apollo Capital Management, L.P.
	Its:	Investment Manager

		By:	Apollo Capital Management GP, LLC
		Its:	General Partner

		By:			/s/ Maruice Amsellem
					Maurice Amsellem
					Authorized Signatory

	MIDCAP FUNDING XIII TRUST, a Delaware statutory trust

	By:	Apollo Capital Management, L.P.
	Its:	Investment Manager

		By:			Apollo Capital Management GP, LLC
		Its:			General Partner

		By:			/s/ Maruice Amsellem
					Maurice Amsellem
					Authorized Signatory

LENDERS:	AMISSIMA DIVERSIFIED INCOME ICAV, an Umbrella Irish Collective Asset-Management Vehicle with Segregated Liability between its Sub-Funds, acting in respect of its Sub-Fund, Amissima Assicurazioni Multi-Credit Strategy Fund

	By:	Apollo Management International LLP
	Its:	Portfolio Manager

		By:	AMI (Holdings), LLC
		Its:	Member

		By:	/s/ Joseph D. Glatt
			Joseph D. Glatt
			Vice President


LENDERS:	APOLLO CREDIT FUNDS ICAV, an Umbrella Irish Collective Asset-Management Vehicle with Segregated Liability between its Sub-Funds, acting in respect of its Sub-Fund, Apollo Helius Multi-Credit Fund I

	By:	ACF Europe Management, LLC
	Its:	Portfolio Manager

		By:	Apollo Capital Management, L.P.
		Its:	Sole Member

LENDERS:	ELM 2016-1 TRUST

	By:	MidCap Financial Services Capital Management, LLC
	Its:	Servicer

		By:	/s/ John O’Dea
			John O’Dea
			Authorized Signatory

LENDERS:	ELM 2018-2 TRUST

	By:	MidCap Financial Services Capital Management, LLC
	Its:	Servicer

		By:	/s/ John O’Dea
			John O’Dea
			Authorized Signatory

BORROWER REPRESENTATIVE:	ACCURAY INCORPORATED, a Delaware corporation

	By:	/s/ Shigeyuki Hamamatsu
		Shigeyuki Hamamatsu
		Chief Financial Officer


OTHER BORROWERS:	TOMOTHERAPY INCORPORATED, a Wisconsin corporation

	By:	/s/ Shigeyuki Hamamatsu
		Shigeyuki Hamamatsu
		Director


		SIGNATURE PAGE TO AMENDMENT NO 2 TO CREDIT AND SECURITY AGREEMENT