AMENDMENT NO. 1 TO CREDIT AND SECURITY AGREEMENT (TERM LOAN)
Exhibit 10.1
AMENDMENT NO. 1 TO CREDIT AND SECURITY AGREEMENT (TERM LOAN)
This AMENDMENT NO. 1 TO CREDIT AND SECURITY AGREEMENT (TERM LOAN) (this “Agreement”) is made as April 18, 2018, by and among SIENTRA, INC., a Delaware corporation, MIRADRY HOLDINGS, INC., a Delaware corporation (formerly known as Miramar Labs, Inc.), MIRADRY, INC., a Delaware corporation (formerly known as Miramar Technologies, Inc.), MIDCAP FINANCIAL TRUST, as Agent (in such capacity, together with its successors and assigns, “Agent”) and the other financial institutions or other entities from time to time parties to the Credit Agreement referenced below, each as a Lender.
RECITALS
A. Agent, Lenders and Borrower have entered into that certain Credit and Security Agreement (Term Loan), dated as of July 25, 2017 (as amended by that certain Limited Waiver of Certain Post-Closing Obligations, dated as of November 27, 2017, and as further amended, modified, supplemented prior to the date hereof, the “Original Credit Agreement”, and as the same is amended hereby and as it may be further amended, modified, supplemented and restated from time to time, the “Credit Agreement”), pursuant to which the Lenders have agreed to extend certain financial accommodations to Borrower in the amounts and manner set forth in the Credit Agreement.
B. Borrower has requested, and Agent and Lenders constituting at least the Required Lenders have agreed to, inter alia, (i) extend the date set forth in Section 7.2(f) of the Original Credit Agreement from March 31, 2018 to April 30, 2018 and (ii) update certain schedules of the Original Credit Agreement, in each case, in accordance with the terms and subject to the conditions set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing, the terms and conditions set forth in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Agent, Lenders constituting Required Lenders and Borrower hereby agree as follows:
1. Recitals. This Agreement shall constitute a Financing Document and the Recitals and each reference to the Credit Agreement, unless otherwise expressly noted, will be deemed to reference the Credit Agreement as amended hereby. The Recitals set forth above shall be construed as part of this Agreement as if set forth fully in the body of this Agreement and capitalized terms used but not otherwise defined herein shall have the meanings ascribed to them in the Credit Agreement (including those capitalized terms used in the Recitals hereto).
2. Amendment to Original Credit Agreement. Subject to the terms and conditions of this Agreement, including, without limitation, the conditions to effectiveness set forth in Section 4 below, the Original Credit Agreement is hereby amended as follows:
(a) Section 1.1 of the Original Credit Agreement is hereby amended by adding the following new defined terms in alphabetical order therein:
“First Amendment” means that certain Amendment No. 1 to Credit and Security Agreement (Term Loan), dated as of April 18, 2018, by and among Borrowers, Agent and Required Lenders.
“First Amendment Effective Date” means the date on which all of the conditions in Section 4 of the First Amendment have been satisfied in accordance with the terms thereof.
(b) Section 3.25(c) of the Original Credit Agreement is hereby amended and restated in its entirety as follows:
“No Borrower is participating in any Medicare program or Medicaid program or any other Third Party Payor Program that is material to Borrower’s business.” 1
(c) Section 3.25(e) of the Original Credit Agreement is hereby amended by adding the phrase “Except as set forth on Schedule 3.25 on the First Amendment Effective Date,” at the beginning thereof.
(d) Section 3.25(h) of the Original Credit Agreement is hereby amended by adding the phrase “Except as set forth on Schedule 3.25 on the First Amendment Effective Date,” at the beginning thereof.
(e) Section 7.2(f) of the Original Credit Agreement is hereby amended by replacing “March 31, 2018” with “April 30, 2018”.
(f) Schedule 3.19 of the Original Credit Agreement is hereby replaced in its entirety by the new Schedule 3.19 attached hereto.
(g) The new Schedule 3.25 attached hereto is hereby added to the Original Credit Agreement in numerical order therein.
(h) Schedule 4.17 of the Original Credit Agreement is hereby replaced in its entirety by the new Schedule 4.17 attached hereto.2
3. Representations and Warranties; Reaffirmation of Security Interest. Each Borrower hereby confirms that all of the representations and warranties set forth in the Credit Agreement are true and correct in all material respects (without duplication of any materiality qualifier in the text of such representation or warranty) with respect to such Borrower 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 shall be true and correct as of such earlier date. Each Borrower confirms and agrees that all security interests and Liens granted to Agent continue in full force and effect, and that all Collateral remains free and clear of any Liens, other than Permitted Liens. Nothing herein is intended to impair or limit the validity, priority or extent of Agent’s security interests in and Liens on the Collateral. Each Borrower acknowledges and agrees that the Credit Agreement, the other Financing Documents and this Agreement constitute the legal, valid and binding obligation of such Borrower, and are 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. Conditions to Effectiveness. This Agreement shall become effective as of the date on which each of the following conditions has been satisfied, as determined by Agent in its sole discretion:
(a) Borrower shall have delivered to Agent this Agreement, executed by an authorized officer of Borrower;
| 1 | Note to draft: to be discussed if participation in third party payor programs is material to Sientra’s business. |
| 2 | Note to draft: 4.1(e) and 4.9(b) require notice only, which at this point has been provided. No need to update schedules for rep purposes. |
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(b) all representations and warranties of Borrower contained herein shall be true and correct in all material respects (without duplication of any materiality qualifier in the text of such representation or warranty) 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 shall be true and correct as of such earlier date (and such parties’ delivery of their respective signatures hereto shall be deemed to be its certification thereof);
(c) prior to and after giving effect to the agreements set forth herein, no Default or Event of Default shall exist under any of the Financing Documents; and
(d) Borrower shall have delivered such other documents, information, certificates, records, permits, and filings as the Agent may reasonably request in connection with this Agreement.
5. Release. In consideration of the agreements of Agent and Required Lenders contained herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, each Borrower, voluntarily, knowingly, unconditionally and irrevocably, with specific and express intent, for and on behalf of itself and all of its respective parents, subsidiaries, affiliates, members, managers, predecessors, successors, and assigns, and each of its respective current and former directors, officers, shareholders, agents, and employees, and each of its respective predecessors, successors, heirs, and assigns (individually and collectively, the “Releasing Parties”) does hereby fully and completely release, acquit and forever discharge each of Agent, Lenders, and each their respective parents, subsidiaries, affiliates, members, managers, shareholders, directors, officers and employees, and each of their respective predecessors, successors, heirs, and assigns (individually and collectively, the “Released Parties”), of and from any and all actions, causes of action, suits, debts, disputes, damages, claims, obligations, liabilities, costs, expenses and demands of any kind whatsoever, at law or in equity, whether matured or unmatured, liquidated or unliquidated, vested or contingent, xxxxxx or inchoate, known or unknown that the Releasing Parties (or any of them) has against the Released Parties or any of them (whether directly or indirectly), based in whole or in part on facts, whether or not now known, existing on or before the date hereof, that relate to, arise out of or otherwise are in connection with: (i) any or all of the Financing Documents or transactions contemplated thereby or any actions or omissions in connection therewith or (ii) any aspect of the dealings or relationships between or among such Borrower, on the one hand, and any or all of the Released Parties, on the other hand, relating to any or all of the documents, transactions, actions or omissions referenced in clause (i) hereof. Each Borrower acknowledges that the foregoing release is a material inducement to Agent’s and Required Lender’s decision to enter into this Agreement and agree to the modifications contemplated hereunder, and has been relied upon by Agent and Required Lenders in connection therewith.
6. No Waiver or Novation. The execution, delivery and effectiveness of this Agreement shall not, except as expressly provided in this Agreement, operate as a waiver of any right, power or remedy of Agent, nor constitute a waiver of any provision of the Credit Agreement, the 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 the other Financing Documents or any of Agent’s rights and remedies in respect of such Defaults or Events of Default. This Agreement (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.
7. Affirmation. Except as specifically amended pursuant to the terms hereof, each Borrower hereby acknowledges and agrees that 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 such Borrower. Each Borrower covenants and agrees to comply with all of the terms, covenants and conditions of the Credit Agreement and the Financing
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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 amendment to such terms, covenants and conditions.
8. Miscellaneous.
(a) Reference to the Effect on the Credit Agreement. Upon the effectiveness of this Agreement, each reference in the Credit Agreement to “this Agreement,” “hereunder,” “hereof,” “herein,” or words of similar import shall mean and be a reference to the Credit Agreement, as amended by this Agreement. Except as specifically amended above, 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 each Borrower.
(b) GOVERNING LAW. THIS AGREEMENT 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 MARYLAND, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
(c) JURY TRIAL. EACH BORROWER, AGENT AND THE REQUIRED 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 BORROWER, AGENT AND EACH REQUIRED 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 BORROWER, AGENT AND EACH REQUIRED 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
(d) Incorporation of Credit Agreement Provisions. The provisions contained in Section 11.6 (Indemnification) of the Credit Agreement are incorporated herein by reference to the same extent as if reproduced herein in their entirety.
(e) Headings. Section headings in this Agreement are included for convenience of reference only and shall not constitute a part of this Agreement for any other purpose.
(f) Counterparts. This Agreement may be signed in any number of counterparts, each of which shall be deemed an original and all of which when taken together shall constitute one and the same instrument. Delivery of an executed counterpart of this Agreement by facsimile or by electronic mail delivery of an electronic version (e.g., .pdf or .tif file) of an executed signature page shall be effective as delivery of an original executed counterpart hereof and shall bind the parties hereto.
(g) Entire Agreement. This Agreement constitutes the entire agreement and understanding among the parties hereto and supersedes any and all prior agreements and understandings, oral or written, relating to the subject matter hereof.
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(e) Severability. In case any provision of or obligation under this Agreement shall be invalid, illegal or unenforceable in any applicable 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.
(f) Successors/Assigns. This Agreement shall bind, and the rights hereunder shall inure to, the respective successors and assigns of the parties hereto, subject to the provisions of the Credit Agreement and the other Financing Documents.
[SIGNATURES APPEAR ON FOLLOWING PAGES]
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IN WITNESS WHEREOF, intending to be legally bound, and intending that this document constitute an agreement executed under seal, the undersigned have executed this Agreement under seal as of the day and year first hereinabove set forth.
| AGENT: | MIDCAP FINANCIAL TRUST, | |||||
| By: |
Apollo Capital Management, L.P., | |||||
| its investment manager | ||||||
| By: |
Apollo Capital Management GP, LLC, | |||||
| its general partner | ||||||
| By: |
/s/ Xxxxxxx Xxxxxxxx (SEAL) | |||||
| Name: |
Xxxxxxx Xxxxxxxx | |||||
| Title: |
Authorized Signatory | |||||
| LENDER: |
MIDCAP FINANCIAL TRUST, | |||||
| By: |
Apollo Capital Management, L.P., | |||||
| its investment manager | ||||||
| By: |
Apollo Capital Management GP, LLC, | |||||
| its general partner | ||||||
| By: |
/s/ Xxxxxxx Xxxxxxxx (SEAL) | |||||
| Name: |
Xxxxxxx Xxxxxxxx | |||||
| Title: |
Authorized Signatory | |||||
| LENDER: |
MIDCAP FUNDING XIII TRUST, | |||||
| By: |
Apollo Capital Management, L.P., | |||||
| its investment manager | ||||||
| By: |
Apollo Capital Management GP, LLC, | |||||
| its general partner | ||||||
| By: |
/s/ Xxxxxxx Xxxxxxxx (SEAL) | |||||
| Name: |
Xxxxxxx Xxxxxxxx | |||||
| Title: |
Authorized Signatory | |||||
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| LENDER: |
ELM 2016-1 TRUST | |||||
| By: |
Midcap Financial Services Capital Management, LLC, as Servicer | |||||
| By: |
/s/ Xxxx X’Xxx | |||||
| Name: |
Xxxx X’Xxx | |||||
| Title: |
Authorized Signatory | |||||
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| LENDER: |
FLEXPOINT MCLS SPV LLC | |||||
| By: |
/s/ Xxxxxx Xxxxxxx | |||||
| Name: |
Xxxxxx Xxxxxxx | |||||
| Title: |
Vice President | |||||
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| LENDER: |
SILICON VALLEY BANK | |||||
| By: |
/s/ Xxxxx Xxxxxxxxxx | |||||
| Name: |
Xxxxx Xxxxxxxxxx | |||||
| Title: |
Director | |||||
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| BORROWER: |
||||||
| By: |
/s/ Xxxxxxx Xxxxxxxx (SEAL) | |||||
| Name: |
Xxxxxxx Xxxxxxxx | |||||
| Title: |
Chief Financial Officer | |||||
| MIRADRY HOLDINGS, INC. | ||||||
| By: |
/s/ Xxxxxxx Xxxxxxxx (SEAL) | |||||
| Name: |
Xxxxxxx Xxxxxxxx | |||||
| Title: |
Chief Financial Officer | |||||
| MIRADRY, INC. | ||||||
| By: |
/s/ Xxxxxxx Xxxxxxxx (SEAL) | |||||
| Name: |
Xxxxxxx Xxxxxxxx | |||||
| Title: |
Chief Financial Officer | |||||
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