1008-00001 · Lumos Analytics Inc · Closing

post-closing-letter.docx DOCUMENT Finance & Banking

5 / 12 ← → ✕

CALDERWOOD & HARKNESS LLP Attorneys at Law 555 Mission Street, Suite 3100 San Francisco, California 94105

Telephone: (415) 392-7400 Facsimile: (415) 392-7401 www.calderwoodharkness.com

Matter No.: 1008-00001

March 9, 2023

Marcus Delaney, Esq. General Counsel Lumos Analytics Inc. 2180 Gateway Boulevard, Suite 400 San Jose, California 95110

Catherine "Cat" Lindgren Chief Financial Officer Lumos Analytics Inc. 2180 Gateway Boulevard, Suite 400 San Jose, California 95110

Re: Post-Closing Deliverables — Senior Secured Revolving Credit Agreement dated March 9, 2023 (the "Credit Agreement"), among Lumos Analytics Inc. ("Borrower"), Ridgeline National Bank, National Association, as Administrative Agent, Collateral Agent, and Lender

Dear Marcus and Cat:

1. Introduction

We are pleased to confirm that the closing of the $30,000,000 Senior Secured Revolving Credit Facility (the "Credit Facility") occurred today, March 9, 2023 (the "Closing Date"), pursuant to the terms and conditions of that certain Senior Secured Revolving Credit Agreement, dated as of the date hereof (the "Credit Agreement"), executed among Lumos Analytics Inc., a Delaware corporation (the "Borrower"), and Ridgeline National Bank, National Association, in its capacities as Administrative Agent, Collateral Agent, and sole initial Lender (collectively with its successors and assigns in such capacities, the "Agent" or "Lender," as applicable).

As you are aware, Calderwood & Harkness LLP serves as counsel to the Borrower in connection with the Credit Agreement and the transactions contemplated thereby. The purpose of this letter is to identify each of the post-closing deliverables that the Borrower has agreed to provide following the Closing Date, as set forth in Section 5.14 (Post-Closing Obligations) of the Credit Agreement. These obligations were negotiated during the documentation process and were agreed to by all parties as conditions that could be satisfied after the Closing Date in lieu of conditions precedent to the initial extension of credit under the Credit Facility. Notwithstanding the deferral of these deliverables to the post-closing period, timely compliance remains essential, and failure to satisfy these obligations by the applicable deadlines carries significant consequences under the Credit Agreement, as discussed in further detail below.

Capitalized terms used but not defined in this letter shall have the meanings assigned to such terms in the Credit Agreement or, where applicable, the Security Agreement dated as of the date hereof between the Borrower and the Collateral Agent (the "Security Agreement").

We have organized this letter to provide: (a) a detailed description of each outstanding post-closing deliverable, including the responsible parties and applicable deadlines; (b) a summary table for ease of reference; (c) a discussion of the consequences of non-delivery; and (d) information regarding ongoing coordination and points of contact. We encourage you to review this letter carefully and to circulate it to the appropriate members of the Borrower's internal team who will be responsible for executing on these deliverables.

2. Post-Closing Deliverables

The following items remain outstanding as of the Closing Date and must be delivered to the Administrative Agent within the time periods specified below. Each item is described in detail, together with the applicable rationale, responsible parties, and deadline.

Item 1: Deposit Account Control Agreements

Description. Pursuant to Section 5.14(a) of the Credit Agreement and Section 4.2 of the Security Agreement, the Borrower shall deliver fully executed Deposit Account Control Agreements ("DACAs") in form and substance reasonably satisfactory to the Administrative Agent for each of the following deposit accounts maintained by the Borrower at Pacific Horizon Bank, a California state-chartered bank with offices located at 101 Park Center Plaza, San Jose, California 95113:

(a) the Borrower's primary operating account (Account No. ending in -4417), used for the receipt of customer payments and general operating disbursements;

(b) the Borrower's payroll account (Account No. ending in -4423), used exclusively for payroll processing and related employee compensation disbursements; and

(c) the Borrower's reserve account (Account No. ending in -4431), maintained as a cash reserve for working capital purposes.

Each DACA shall be a tri-party agreement establishing "control" (as defined in Section 9-104 of the Uniform Commercial Code as in effect in the State of California) by the Collateral Agent over the applicable deposit account, including customary provisions granting the Collateral Agent the right to issue "entitlement orders" or "instructions" directing the disposition of funds in such account upon the occurrence and during the continuance of an Event of Default.

Rationale. The delivery of DACAs is required under Article IV of the Security Agreement in order to perfect the Collateral Agent's security interest in the Borrower's deposit accounts that hold or are reasonably expected to hold balances in excess of $250,000 at any time. Perfection of the security interest in deposit accounts by "control" pursuant to applicable provisions of the Uniform Commercial Code is the sole method of perfection available for such asset class, and a financing statement filing alone is insufficient. Until the DACAs are executed and delivered, the Collateral Agent's security interest in the funds held in these accounts will remain unperfected, which creates a gap in the collateral coverage contemplated by the Credit Agreement and the Security Agreement.

Responsible Parties. The Borrower shall be responsible for initiating and coordinating contact with Pacific Horizon Bank to facilitate the negotiation and execution of the DACAs. Each DACA must be executed by: (i) Lumos Analytics Inc., as Grantor and account holder; (ii) Pacific Horizon Bank, as Depository Bank; and (iii) Ridgeline National Bank, N.A., as Collateral Agent. Calderwood & Harkness LLP will prepare initial drafts of the DACAs based on a form previously approved by the Administrative Agent and will circulate such drafts to all relevant parties for review and comment, as described in Section 5 of this letter.

Deadline. The fully executed DACAs for all three deposit accounts identified above must be delivered to the Administrative Agent no later than April 8, 2023, which is thirty (30) days after the Closing Date.

Item 2: Updated Insurance Certificates

Description. Pursuant to Section 5.14(b) of the Credit Agreement and Section 5.06 of the Credit Agreement (Insurance Covenants), the Borrower shall deliver updated certificates of insurance, together with all applicable endorsements, evidencing the following:

(a) that Ridgeline National Bank, N.A., in its capacity as Collateral Agent, has been named as lender loss payee (pursuant to a standard mortgagee/lender loss payable endorsement) on all property and casualty insurance policies maintained by the Borrower; and

(b) that Ridgeline National Bank, N.A., in its capacity as Collateral Agent, has been named as additional insured on all liability insurance policies maintained by the Borrower, including commercial general liability, cyber liability, and umbrella/excess liability policies.

Insurance Carrier. The Borrower's insurance program is currently underwritten by Broadleaf Mutual Insurance Company, which holds a financial strength rating of A- (Excellent) from AM Best, satisfying the minimum rating requirements set forth in Section 5.06(a) of the Credit Agreement. The updated certificates and endorsements shall be issued by or on behalf of Broadleaf Mutual Insurance Company and shall reflect the following minimum coverage amounts required under the Credit Agreement:

• Commercial General Liability: Minimum of $5,000,000 per occurrence and in the aggregate, covering bodily injury, property damage, personal and advertising injury, and products-completed operations;

• Cyber Liability / Technology Errors & Omissions: Minimum of $10,000,000 per claim and in the aggregate, covering network security liability, privacy liability, media liability, and technology errors and omissions;

• Directors & Officers Liability: Minimum of $5,000,000 per claim, including coverage for entity securities claims and corporate reimbursement; and

• Property Insurance: On a replacement cost basis covering all tangible personal property and business personal property of the Borrower, including equipment, furniture, fixtures, and improvements, at each of the Borrower's leased premises.

Responsible Parties. The Borrower shall coordinate with Broadleaf Mutual Insurance Company (or the Borrower's insurance broker of record, as applicable) to request the issuance of updated certificates of insurance and the applicable endorsements reflecting the lender loss payee and additional insured designations described above. The updated certificates and endorsements shall be delivered directly to the Administrative Agent, with copies to Lender's counsel.

Deadline. The updated certificates of insurance and all required endorsements must be delivered to the Administrative Agent no later than March 24, 2023, which is fifteen (15) days after the Closing Date.

Item 3: Landlord Lien Waivers

Description. Pursuant to Section 5.14(c) of the Credit Agreement, the Borrower shall deliver landlord lien waivers and/or collateral access agreements, in form and substance reasonably satisfactory to the Administrative Agent, from the landlords of each of the following leased premises at which assets of the Borrower constituting Collateral (including, without limitation, equipment, inventory, documents, instruments, and general intangibles) are located:

(a) 2180 Gateway Boulevard, Suite 400, San Jose, California 95110 — the Borrower's principal place of business and corporate headquarters, leased pursuant to that certain Office Lease Agreement dated August 15, 2020, as amended; and

(b) 7600 North Lamar Boulevard, Suite 220, Austin, Texas 78752 — the Borrower's satellite office used for engineering and product development operations, leased pursuant to that certain Commercial Lease Agreement dated February 1, 2022.

Purpose. The landlord lien waivers and/or collateral access agreements are required in order to ensure that the Collateral Agent's security interest in personal property of the Borrower located at the leased premises described above is not subordinated to, or otherwise subject to, any statutory or contractual landlord's lien, distraint right, or similar encumbrance that may arise under applicable state law or under the terms of the applicable lease agreements. Additionally, the collateral access agreements will provide the Collateral Agent with the right to access the leased premises during reasonable business hours for purposes of inspecting, protecting, and, if necessary following an Event of Default, removing and disposing of the Collateral located therein.

Responsible Parties. The Borrower shall be responsible for engaging the landlords at each of the two locations identified above and for delivering the executed waivers and/or collateral access agreements to the Administrative Agent. Calderwood & Harkness LLP has standard-form landlord waiver templates available and will provide these to the Borrower's team upon request. However, it should be noted that certain landlords may require negotiation of specific terms (including, for example, provisions regarding restoration of the premises, insurance, and notice periods), and the Borrower should initiate contact with each landlord promptly in order to allow sufficient time for such negotiations.

Deadline. The fully executed landlord lien waivers and/or collateral access agreements for both leased premises identified above must be delivered to the Administrative Agent no later than March 24, 2023, which is fifteen (15) days after the Closing Date.

3. Summary Table of Deliverables and Deadlines

For ease of reference, the following table summarizes each outstanding post-closing deliverable, together with the applicable deadline:

4. Consequences of Non-Delivery

We wish to draw your particular attention to the consequences of failing to deliver any of the foregoing post-closing deliverables by the applicable deadline. Pursuant to Section 8.01(h) of the Credit Agreement, the failure by the Borrower to satisfy any post-closing obligation set forth in Section 5.14 of the Credit Agreement within the time period specified therein shall constitute an Event of Default under the Credit Agreement. Upon the occurrence and during the continuance of an Event of Default, the Administrative Agent and the Lender shall be entitled to exercise any and all rights and remedies available to them under the Credit Agreement, the Security Agreement, and the other Loan Documents, including, without limitation: (i) the right to terminate the Revolving Commitments; (ii) the right to accelerate all outstanding Obligations; (iii) the right to exercise remedies with respect to the Collateral under the Security Agreement and applicable law; and (iv) the right to charge the Default Rate of interest on all outstanding Obligations.

We strongly encourage the Borrower to promptly initiate contact with Pacific Horizon Bank, Broadleaf Mutual Insurance Company (and/or the Borrower's insurance broker of record), and the respective landlords at the San Jose and Austin locations to ensure that all deliverables are finalized and executed well in advance of the applicable deadlines. Given that the deadlines for the insurance certificates and landlord lien waivers fall on March 24, 2023 — only fifteen (15) calendar days from today — it is imperative that outreach to these third parties commence immediately.

In the event that the Borrower anticipates difficulty in meeting any of the deadlines set forth above, we recommend that the Borrower notify us and the Administrative Agent as soon as practicable so that we may explore whether an extension or waiver may be available. Any such extension or waiver would require the written consent of the Administrative Agent and the Required Lenders in accordance with Section 10.02 of the Credit Agreement and cannot be assured.

5. Coordination and Assistance

Calderwood & Harkness LLP remains fully available to assist the Borrower in the preparation, negotiation, and finalization of each of the post-closing deliverables described in this letter. Specifically, we intend to provide the following support:

Deposit Account Control Agreements. Calderwood & Harkness LLP will prepare initial drafts of the DACAs based on the form of Deposit Account Control Agreement previously approved by the Administrative Agent during the documentation phase of the Credit Facility. We anticipate circulating these drafts to Pacific Horizon Bank and to Whitmore Graves & Fitch LLP (as Lender's counsel) for review and comment within approximately five (5) business days of the Closing Date. We ask that the Borrower provide an introduction to the appropriate contact at Pacific Horizon Bank's treasury management or legal department so that we may facilitate a prompt and efficient negotiation process.

Insurance Certificates and Endorsements. Calderwood & Harkness LLP can provide template endorsement language for the lender loss payee and additional insured designations, which may be shared with Broadleaf Mutual Insurance Company or the Borrower's insurance broker to expedite the issuance of compliant certificates. We recommend that the Borrower's CFO or risk management team initiate the endorsement request with the carrier no later than March 10, 2023, given the fifteen-day deadline.

Landlord Lien Waivers. Calderwood & Harkness LLP has standard-form landlord lien waiver and collateral access agreement templates that have been used in prior transactions and that are generally acceptable to institutional lenders, including the Administrative Agent. We will make these forms available to the Borrower's team upon request and can assist in negotiating any landlord-requested modifications.

We respectfully request that Marcus Delaney and Catherine Lindgren serve as the Borrower's primary points of contact for all landlord communications and insurance broker coordination related to the post-closing deliverables. This will help ensure clear lines of communication and avoid duplication of effort across the Borrower's internal departments.

Upon execution, copies of all post-closing deliverables should be delivered to each of the following:

(i) the Administrative Agent, attention: Derek Huang, Vice President, Technology Banking, Ridgeline National Bank, N.A., 600 Lexington Avenue, 22nd Floor, New York, New York 10022; and

(ii) Lender's counsel, attention: Thomas A. Rennick, Partner, Whitmore Graves & Fitch LLP, 51 West 52nd Street, 34th Floor, New York, New York 10019.

We will also maintain copies in our files and will track the status of each deliverable through completion.

6. Contact Information

Should you have any questions regarding this letter, the post-closing deliverables described herein, or any other matter arising under the Credit Agreement or the related Loan Documents, please do not hesitate to contact:

Daniel Obi Lead Associate, Banking & Finance Calderwood & Harkness LLP 555 Mission Street, Suite 3100 San Francisco, California 94105 Telephone: (415) 392-7418

Email: dobi@calderwoodharkness.com

Please reference C&H Matter No. 1008-00001 in all correspondence.

This matter is supervised by Stephanie Okafor, Partner, Banking & Finance, Calderwood & Harkness LLP, who may be reached at (415) 392-7405 or sokafor@calderwoodharkness.com.

We appreciate your cooperation and look forward to working with you to bring these remaining deliverables to a successful and timely conclusion. Please let us know if you would like to schedule a brief call early next week to discuss the action plan and assign responsibilities within the Borrower's team.

Very truly yours,

CALDERWOOD & HARKNESS LLP

By: ________

Daniel Obi Lead Associate, Banking & Finance

cc:

Thomas A. Rennick, Esq. Partner Whitmore Graves & Fitch LLP 51 West 52nd Street, 34th Floor New York, New York 10019

Derek Huang Vice President, Technology Banking Ridgeline National Bank, N.A. 600 Lexington Avenue, 22nd Floor New York, New York 10022

Stephanie Okafor, Esq. Partner, Banking & Finance Calderwood & Harkness LLP 555 Mission Street, Suite 3100 San Francisco, California 94105 (internal copy)

Enclosures: None. Draft DACA forms will be circulated under separate cover.

Item No.	Deliverable	Deadline
1	Deposit Account Control Agreements — three fully executed DACAs covering the operating account, payroll account, and reserve account at Pacific Horizon Bank	April 8, 2023 (30 days post-closing)
2	Updated certificates of insurance — Broadleaf Mutual Insurance Company, reflecting lender loss payee and additional insured endorsements in favor of Ridgeline National Bank, N.A., as Collateral Agent	March 24, 2023 (15 days post-closing)
3	Landlord lien waivers and/or collateral access agreements — (a) San Jose headquarters (2180 Gateway Blvd., Suite 400) and (b) Austin satellite office (7600 N. Lamar Blvd., Suite 220)	March 24, 2023 (15 days post-closing)

CALDERWOOD & HARKNESS LLP Attorneys at Law 555 Mission Street, Suite 3100 San Francisco, California 94105
Telephone: (415) 392-7400 Facsimile: (415) 392-7401 www.calderwoodharkness.com
Matter No.: 1008-00001
March 9, 2023
Marcus Delaney, Esq. General Counsel Lumos Analytics Inc. 2180 Gateway Boulevard, Suite 400 San Jose, California 95110
Catherine "Cat" Lindgren Chief Financial Officer Lumos Analytics Inc. 2180 Gateway Boulevard, Suite 400 San Jose, California 95110
Re: Post-Closing Deliverables — Senior Secured Revolving Credit Agreement dated March 9, 2023 (the "Credit Agreement"), among Lumos Analytics Inc. ("Borrower"), Ridgeline National Bank, National Association, as Administrative Agent, Collateral Agent, and Lender
Dear Marcus and Cat:
1. Introduction
We are pleased to confirm that the closing of the $30,000,000 Senior Secured Revolving Credit Facility (the "Credit Facility") occurred today, March 9, 2023 (the "Closing Date"), pursuant to the terms and conditions of that certain Senior Secured Revolving Credit Agreement, dated as of the date hereof (the "Credit Agreement"), executed among Lumos Analytics Inc., a Delaware corporation (the "Borrower"), and Ridgeline National Bank, National Association, in its capacities as Administrative Agent, Collateral Agent, and sole initial Lender (collectively with its successors and assigns in such capacities, the "Agent" or "Lender," as applicable).
As you are aware, Calderwood & Harkness LLP serves as counsel to the Borrower in connection with the Credit Agreement and the transactions contemplated thereby. The purpose of this letter is to identify each of the post-closing deliverables that the Borrower has agreed to provide following the Closing Date, as set forth in Section 5.14 (Post-Closing Obligations) of the Credit Agreement. These obligations were negotiated during the documentation process and were agreed to by all parties as conditions that could be satisfied after the Closing Date in lieu of conditions precedent to the initial extension of credit under the Credit Facility. Notwithstanding the deferral of these deliverables to the post-closing period, timely compliance remains essential, and failure to satisfy these obligations by the applicable deadlines carries significant consequences under the Credit Agreement, as discussed in further detail below.
Capitalized terms used but not defined in this letter shall have the meanings assigned to such terms in the Credit Agreement or, where applicable, the Security Agreement dated as of the date hereof between the Borrower and the Collateral Agent (the "Security Agreement").
We have organized this letter to provide: (a) a detailed description of each outstanding post-closing deliverable, including the responsible parties and applicable deadlines; (b) a summary table for ease of reference; (c) a discussion of the consequences of non-delivery; and (d) information regarding ongoing coordination and points of contact. We encourage you to review this letter carefully and to circulate it to the appropriate members of the Borrower's internal team who will be responsible for executing on these deliverables.
2. Post-Closing Deliverables
The following items remain outstanding as of the Closing Date and must be delivered to the Administrative Agent within the time periods specified below. Each item is described in detail, together with the applicable rationale, responsible parties, and deadline.
Item 1: Deposit Account Control Agreements
Description. Pursuant to Section 5.14(a) of the Credit Agreement and Section 4.2 of the Security Agreement, the Borrower shall deliver fully executed Deposit Account Control Agreements ("DACAs") in form and substance reasonably satisfactory to the Administrative Agent for each of the following deposit accounts maintained by the Borrower at Pacific Horizon Bank, a California state-chartered bank with offices located at 101 Park Center Plaza, San Jose, California 95113:
(a) the Borrower's primary operating account (Account No. ending in -4417), used for the receipt of customer payments and general operating disbursements;
(b) the Borrower's payroll account (Account No. ending in -4423), used exclusively for payroll processing and related employee compensation disbursements; and
(c) the Borrower's reserve account (Account No. ending in -4431), maintained as a cash reserve for working capital purposes.
Each DACA shall be a tri-party agreement establishing "control" (as defined in Section 9-104 of the Uniform Commercial Code as in effect in the State of California) by the Collateral Agent over the applicable deposit account, including customary provisions granting the Collateral Agent the right to issue "entitlement orders" or "instructions" directing the disposition of funds in such account upon the occurrence and during the continuance of an Event of Default.
Rationale. The delivery of DACAs is required under Article IV of the Security Agreement in order to perfect the Collateral Agent's security interest in the Borrower's deposit accounts that hold or are reasonably expected to hold balances in excess of $250,000 at any time. Perfection of the security interest in deposit accounts by "control" pursuant to applicable provisions of the Uniform Commercial Code is the sole method of perfection available for such asset class, and a financing statement filing alone is insufficient. Until the DACAs are executed and delivered, the Collateral Agent's security interest in the funds held in these accounts will remain unperfected, which creates a gap in the collateral coverage contemplated by the Credit Agreement and the Security Agreement.
Responsible Parties. The Borrower shall be responsible for initiating and coordinating contact with Pacific Horizon Bank to facilitate the negotiation and execution of the DACAs. Each DACA must be executed by: (i) Lumos Analytics Inc., as Grantor and account holder; (ii) Pacific Horizon Bank, as Depository Bank; and (iii) Ridgeline National Bank, N.A., as Collateral Agent. Calderwood & Harkness LLP will prepare initial drafts of the DACAs based on a form previously approved by the Administrative Agent and will circulate such drafts to all relevant parties for review and comment, as described in Section 5 of this letter.
Deadline. The fully executed DACAs for all three deposit accounts identified above must be delivered to the Administrative Agent no later than April 8, 2023, which is thirty (30) days after the Closing Date.
Item 2: Updated Insurance Certificates
Description. Pursuant to Section 5.14(b) of the Credit Agreement and Section 5.06 of the Credit Agreement (Insurance Covenants), the Borrower shall deliver updated certificates of insurance, together with all applicable endorsements, evidencing the following:
(a) that Ridgeline National Bank, N.A., in its capacity as Collateral Agent, has been named as lender loss payee (pursuant to a standard mortgagee/lender loss payable endorsement) on all property and casualty insurance policies maintained by the Borrower; and
(b) that Ridgeline National Bank, N.A., in its capacity as Collateral Agent, has been named as additional insured on all liability insurance policies maintained by the Borrower, including commercial general liability, cyber liability, and umbrella/excess liability policies.
Insurance Carrier. The Borrower's insurance program is currently underwritten by Broadleaf Mutual Insurance Company, which holds a financial strength rating of A- (Excellent) from AM Best, satisfying the minimum rating requirements set forth in Section 5.06(a) of the Credit Agreement. The updated certificates and endorsements shall be issued by or on behalf of Broadleaf Mutual Insurance Company and shall reflect the following minimum coverage amounts required under the Credit Agreement:
•  Commercial General Liability: Minimum of $5,000,000 per occurrence and in the aggregate, covering bodily injury, property damage, personal and advertising injury, and products-completed operations;
•  Cyber Liability / Technology Errors & Omissions: Minimum of $10,000,000 per claim and in the aggregate, covering network security liability, privacy liability, media liability, and technology errors and omissions;
•  Directors & Officers Liability: Minimum of $5,000,000 per claim, including coverage for entity securities claims and corporate reimbursement; and
•  Property Insurance: On a replacement cost basis covering all tangible personal property and business personal property of the Borrower, including equipment, furniture, fixtures, and improvements, at each of the Borrower's leased premises.
Responsible Parties. The Borrower shall coordinate with Broadleaf Mutual Insurance Company (or the Borrower's insurance broker of record, as applicable) to request the issuance of updated certificates of insurance and the applicable endorsements reflecting the lender loss payee and additional insured designations described above. The updated certificates and endorsements shall be delivered directly to the Administrative Agent, with copies to Lender's counsel.
Deadline. The updated certificates of insurance and all required endorsements must be delivered to the Administrative Agent no later than March 24, 2023, which is fifteen (15) days after the Closing Date.
Item 3: Landlord Lien Waivers
Description. Pursuant to Section 5.14(c) of the Credit Agreement, the Borrower shall deliver landlord lien waivers and/or collateral access agreements, in form and substance reasonably satisfactory to the Administrative Agent, from the landlords of each of the following leased premises at which assets of the Borrower constituting Collateral (including, without limitation, equipment, inventory, documents, instruments, and general intangibles) are located:
(a) 2180 Gateway Boulevard, Suite 400, San Jose, California 95110 — the Borrower's principal place of business and corporate headquarters, leased pursuant to that certain Office Lease Agreement dated August 15, 2020, as amended; and
(b) 7600 North Lamar Boulevard, Suite 220, Austin, Texas 78752 — the Borrower's satellite office used for engineering and product development operations, leased pursuant to that certain Commercial Lease Agreement dated February 1, 2022.
Purpose. The landlord lien waivers and/or collateral access agreements are required in order to ensure that the Collateral Agent's security interest in personal property of the Borrower located at the leased premises described above is not subordinated to, or otherwise subject to, any statutory or contractual landlord's lien, distraint right, or similar encumbrance that may arise under applicable state law or under the terms of the applicable lease agreements. Additionally, the collateral access agreements will provide the Collateral Agent with the right to access the leased premises during reasonable business hours for purposes of inspecting, protecting, and, if necessary following an Event of Default, removing and disposing of the Collateral located therein.
Responsible Parties. The Borrower shall be responsible for engaging the landlords at each of the two locations identified above and for delivering the executed waivers and/or collateral access agreements to the Administrative Agent. Calderwood & Harkness LLP has standard-form landlord waiver templates available and will provide these to the Borrower's team upon request. However, it should be noted that certain landlords may require negotiation of specific terms (including, for example, provisions regarding restoration of the premises, insurance, and notice periods), and the Borrower should initiate contact with each landlord promptly in order to allow sufficient time for such negotiations.
Deadline. The fully executed landlord lien waivers and/or collateral access agreements for both leased premises identified above must be delivered to the Administrative Agent no later than March 24, 2023, which is fifteen (15) days after the Closing Date.
3. Summary Table of Deliverables and Deadlines
For ease of reference, the following table summarizes each outstanding post-closing deliverable, together with the applicable deadline:
4. Consequences of Non-Delivery
We wish to draw your particular attention to the consequences of failing to deliver any of the foregoing post-closing deliverables by the applicable deadline. Pursuant to Section 8.01(h) of the Credit Agreement, the failure by the Borrower to satisfy any post-closing obligation set forth in Section 5.14 of the Credit Agreement within the time period specified therein shall constitute an Event of Default under the Credit Agreement. Upon the occurrence and during the continuance of an Event of Default, the Administrative Agent and the Lender shall be entitled to exercise any and all rights and remedies available to them under the Credit Agreement, the Security Agreement, and the other Loan Documents, including, without limitation: (i) the right to terminate the Revolving Commitments; (ii) the right to accelerate all outstanding Obligations; (iii) the right to exercise remedies with respect to the Collateral under the Security Agreement and applicable law; and (iv) the right to charge the Default Rate of interest on all outstanding Obligations.
We strongly encourage the Borrower to promptly initiate contact with Pacific Horizon Bank, Broadleaf Mutual Insurance Company (and/or the Borrower's insurance broker of record), and the respective landlords at the San Jose and Austin locations to ensure that all deliverables are finalized and executed well in advance of the applicable deadlines. Given that the deadlines for the insurance certificates and landlord lien waivers fall on March 24, 2023 — only fifteen (15) calendar days from today — it is imperative that outreach to these third parties commence immediately.
In the event that the Borrower anticipates difficulty in meeting any of the deadlines set forth above, we recommend that the Borrower notify us and the Administrative Agent as soon as practicable so that we may explore whether an extension or waiver may be available. Any such extension or waiver would require the written consent of the Administrative Agent and the Required Lenders in accordance with Section 10.02 of the Credit Agreement and cannot be assured.
5. Coordination and Assistance
Calderwood & Harkness LLP remains fully available to assist the Borrower in the preparation, negotiation, and finalization of each of the post-closing deliverables described in this letter. Specifically, we intend to provide the following support:
Deposit Account Control Agreements. Calderwood & Harkness LLP will prepare initial drafts of the DACAs based on the form of Deposit Account Control Agreement previously approved by the Administrative Agent during the documentation phase of the Credit Facility. We anticipate circulating these drafts to Pacific Horizon Bank and to Whitmore Graves & Fitch LLP (as Lender's counsel) for review and comment within approximately five (5) business days of the Closing Date. We ask that the Borrower provide an introduction to the appropriate contact at Pacific Horizon Bank's treasury management or legal department so that we may facilitate a prompt and efficient negotiation process.
Insurance Certificates and Endorsements. Calderwood & Harkness LLP can provide template endorsement language for the lender loss payee and additional insured designations, which may be shared with Broadleaf Mutual Insurance Company or the Borrower's insurance broker to expedite the issuance of compliant certificates. We recommend that the Borrower's CFO or risk management team initiate the endorsement request with the carrier no later than March 10, 2023, given the fifteen-day deadline.
Landlord Lien Waivers. Calderwood & Harkness LLP has standard-form landlord lien waiver and collateral access agreement templates that have been used in prior transactions and that are generally acceptable to institutional lenders, including the Administrative Agent. We will make these forms available to the Borrower's team upon request and can assist in negotiating any landlord-requested modifications.
We respectfully request that Marcus Delaney and Catherine Lindgren serve as the Borrower's primary points of contact for all landlord communications and insurance broker coordination related to the post-closing deliverables. This will help ensure clear lines of communication and avoid duplication of effort across the Borrower's internal departments.
Upon execution, copies of all post-closing deliverables should be delivered to each of the following:
(i) the Administrative Agent, attention: Derek Huang, Vice President, Technology Banking, Ridgeline National Bank, N.A., 600 Lexington Avenue, 22nd Floor, New York, New York 10022; and
(ii) Lender's counsel, attention: Thomas A. Rennick, Partner, Whitmore Graves & Fitch LLP, 51 West 52nd Street, 34th Floor, New York, New York 10019.
We will also maintain copies in our files and will track the status of each deliverable through completion.
6. Contact Information
Should you have any questions regarding this letter, the post-closing deliverables described herein, or any other matter arising under the Credit Agreement or the related Loan Documents, please do not hesitate to contact:
Daniel Obi Lead Associate, Banking & Finance Calderwood & Harkness LLP 555 Mission Street, Suite 3100 San Francisco, California 94105 Telephone: (415) 392-7418
Email: dobi@calderwoodharkness.com
Please reference C&H Matter No. 1008-00001 in all correspondence.
This matter is supervised by Stephanie Okafor, Partner, Banking & Finance, Calderwood & Harkness LLP, who may be reached at (415) 392-7405 or sokafor@calderwoodharkness.com.
We appreciate your cooperation and look forward to working with you to bring these remaining deliverables to a successful and timely conclusion. Please let us know if you would like to schedule a brief call early next week to discuss the action plan and assign responsibilities within the Borrower's team.
Very truly yours,
CALDERWOOD & HARKNESS LLP
By: ________
Daniel Obi Lead Associate, Banking & Finance
cc:
Thomas A. Rennick, Esq. Partner Whitmore Graves & Fitch LLP 51 West 52nd Street, 34th Floor New York, New York 10019
Derek Huang Vice President, Technology Banking Ridgeline National Bank, N.A. 600 Lexington Avenue, 22nd Floor New York, New York 10022
Stephanie Okafor, Esq. Partner, Banking & Finance Calderwood & Harkness LLP 555 Mission Street, Suite 3100 San Francisco, California 94105 (internal copy)
Enclosures: None. Draft DACA forms will be circulated under separate cover.
Item No. | Deliverable | Deadline
1 | Deposit Account Control Agreements — three fully executed DACAs covering the operating account, payroll account, and reserve account at Pacific Horizon Bank | April 8, 2023 (30 days post-closing)
2 | Updated certificates of insurance — Broadleaf Mutual Insurance Company, reflecting lender loss payee and additional insured endorsements in favor of Ridgeline National Bank, N.A., as Collateral Agent | March 24, 2023 (15 days post-closing)
3 | Landlord lien waivers and/or collateral access agreements — (a) San Jose headquarters (2180 Gateway Blvd., Suite 400) and (b) Austin satellite office (7600 N. Lamar Blvd., Suite 220) | March 24, 2023 (15 days post-closing)

CALDERWOOD & HARKNESS LLP Attorneys at Law 555 Mission Street, Suite 3100 San Francisco, California 94105

CALDERWOOD & HARKNESS LLP

Record

Parties

Dates

Amounts