Common use of Term Sheet Milestone Clause in Contracts

Term Sheet Milestone. If Bank has made the initial Term Loan B to Borrowers, on or prior to the date on which Borrowers’ total cash at Bank is less than $5,000,000, Borrowers shall have delivered evidence, satisfactory to Bank in its sole but reasonable discretion, that Borrowers have received a signed and accepted term sheet on terms and from investors reasonably acceptable to Bank for the sale of Borrowers’ equity securities, with net cash proceeds in an amount reasonably acceptable to Bank (as determined by Bank in its sole discretion), to be funded no later than 30 days after Borrowers’ receipt of such signed and accepted term sheet.” 7. No course of dealing on the part of Bank or its officers, nor any failure or delay in the exercise of any right by Bank, shall operate as a waiver thereof, and any single or partial exercise of any such right shall not preclude any later exercise of any such right. Bank’s failure at any time to require strict performance by a Borrower of any provision shall not affect any right of Bank thereafter to demand strict compliance and performance. Any suspension or waiver of a right must be in writing signed by an officer of Bank. 8. Unless otherwise defined, all initially capitalized terms in this Amendment shall be as defined in the Agreement. The Agreement, as amended hereby, shall be and remain in full force and effect in accordance with its respective terms and hereby is ratified and confirmed in all respects. Except as expressly set forth herein, the execution, delivery, and performance of this Amendment shall not operate as a waiver of, or as an amendment of, any right, power, or remedy of Bank under the Agreement, as in effect prior to the date hereof. 9. Each Borrower represents and warrants that the Representations and Warranties contained in the Agreement are true and correct in all material respects as of the date of this Amendment (other than Representations and Warranties which (i) are already qualified by materiality, in which case such Representations and Warranties shall be true and correct in all respects or (ii) refer to an specific date or time period, in which case such Representations and Warranties shall be true and correct as of such date or with respect to such time period), and that no Event of Default has occurred and is continuing. 10. As a condition to the effectiveness of this Amendment, Bank shall have received, in form and substance satisfactory to Bank, the following: (a) this Amendment, duly executed by each Borrower; (b) a third warrant to purchase stock in form and substance satisfactory to Bank, which Bank and Borrowers acknowledge shall become excisable upon Bank making the initial Term B Loan to Borrowers; (c) a Certificate of the Secretary of each Borrower with respect to incumbency and resolutions authorizing the execution and delivery of this Amendment; (d) a facility fee in the amount of $15,000, which may be debited from any of Borrowers’ accounts; (e) all reasonable Bank Expenses incurred through the date of this Amendment, which may be debited from any of Borrowers’ accounts; and (f) such other documents, and completion of such other matters, as Bank may reasonably deem necessary or appropriate. 11. This Amendment may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one instrument.

Term Sheet Milestone. If Bank has made the initial Term Loan B to Borrowers, on or prior to the date on which Borrowers’ total cash at Bank is less than $5,000,000, Borrowers shall have delivered evidence, satisfactory to Bank in its sole but reasonable discretion, that Borrowers have received a signed and accepted term sheet on terms and from investors reasonably acceptable to Bank for the sale of Borrowers’ equity securities, with net cash proceeds in an amount reasonably acceptable to Bank (as determined by Bank in its sole discretion), to be funded no later than 30 days after Borrowers’ receipt of such signed and accepted term sheet.” 7. No course of dealing on the part of Bank or its officers, nor any failure or delay in the exercise of any right by Bank, shall operate as a waiver thereof, and any single or partial exercise of any such right shall not preclude any later exercise of any such right. Bank’s failure at any time to require strict performance by a Borrower of any provision shall not affect any right of Bank thereafter to demand strict compliance and performance. Any suspension or waiver of a right must be in writing signed by an officer of Bank. 8. Unless otherwise defined, all initially capitalized terms in this Amendment shall be as defined in the Agreement. The Agreement, as amended hereby, shall be and remain in full force and effect in accordance with its respective terms and hereby is ratified and confirmed in all respects. Except as expressly set forth herein, the execution, delivery, and performance of this Amendment shall not operate as a waiver of, or as an amendment of, any right, power, or remedy of Bank under the Agreement, as in effect prior to the date hereof. 9. Each Borrower represents and warrants that the Representations and Warranties contained in the Agreement are true and correct in all material respects as of the date of this Amendment (other than Representations and Warranties which (i) are already qualified by materiality, in which case such Representations and Warranties shall be true and correct in all respects or (ii) refer to an specific date or time period, in which case such Representations and Warranties shall be true and correct as of such date or with respect to such time period), and that no Event of Default has occurred and is continuing. 10. As a condition to the effectiveness of this Amendment, Bank shall have received, in form and substance satisfactory to Bank, the following: (a) this Amendment, duly executed by each Borrower; (b) a third warrant to purchase stock in form and substance satisfactory to Bank, which Bank and Borrowers acknowledge shall become excisable upon Bank making the initial Term B Loan to Borrowers; (c) a Certificate of the Secretary of each Borrower with respect to incumbency and resolutions authorizing the execution and delivery of this Amendment; (d) a facility fee in the amount of $15,000, which may be debited from any of Borrowers’ accounts; (e) all reasonable Bank Expenses incurred through the date of this Amendment, which may be debited from any of Borrowers’ accounts; and (f) such other documents, and completion of such other matters, as Bank may reasonably deem necessary or appropriate. 11. This Amendment may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one instrument.. [Balance of Page Intentionally Left Blank]