AMENDMENT NO. 4 TO CREDIT AND SECURITY AGREEMENT
Exhibit 10.1
Execution Version
AMENDMENT NO. 4 TO CREDIT AND SECURITY AGREEMENT
This AMENDMENT NO. 4 TO CREDIT AND SECURITY AGREEMENT (this “Agreement”) is made as of this 10th day of December, 2021, by and among EXICURE, INC., a Delaware corporation (“Parent”), as a Borrower, EXICURE OPERATING COMPANY, a Delaware corporation (“Exicure Operating Company”), as a Borrower, MIDCAP FINANCIAL TRUST, as Agent (in such capacity, together with its successors and assigns, “Agent”) and the 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 Borrowers have entered into that certain Credit and Security Agreement, dated as of September 25, 2020 (as amended by that certain Amendment No. 1 to Credit and Security Agreement, dated as of October 21, 2020, as amended by that certain Amendment No. 2 to Credit and Security Agreement, dated as of July 30, 2021, that certain Amendment No. 3 to Credit and Security Agreement, dated as of September 30, 2021 and as further amended, supplemented or otherwise modified from time to time 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 make certain advances of money and to extend certain financial accommodations to Borrowers in the amounts and manner set forth in the Credit Agreement.
B.Borrowers have requested, and Agent and Lenders have agreed, on and subject to the terms and conditions set forth in this Agreement and the other Financing Documents, to, among other things, amend certain provisions of the Original Credit Agreement to provide, among other things, for (i) the prepayment, in part, of the Credit Extensions on the date hereof, (ii) the waiver of certain prepayment fees in connection with such prepayment, and (iii) the addition of certain financial covenants.
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 and Borrowers 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.Prepayment of the Credit Extensions.
(a)Borrowers hereby agree to make, on the date hereof, a prepayment to Agent (for the benefit of Lenders in accordance with their Pro Rata Shares) of the Credit Extensions under Credit Facility #1 in an aggregate principal amount equal to $10,000,000 (the “Fourth Amendment Prepayment”). The Fourth Amendment Prepayment shall be made in immediately available funds without setoff, deduction or counterclaim and shall be applied by Agent in accordance with Section 2.6(c) of the Credit Agreement.
(b)Agent and each Lender hereby agree, solely in respect of the Fourth Amendment Prepayment, to waive Applicable Prepayment Fee set forth on Credit Facility Schedule for Credit Facility #1. Without limiting the foregoing, Agent and each Lender agree that Borrowers shall not be required to pay the Partial Exit Fee (as defined in the Fee Letter) in respect of the Fourth Amendment Prepayment on the date hereof; provided that the amount constituting such Partial Exit Fee shall be due and payable on the Full Exit Fee Payment Date (as defined in the Fee Letter), except to the extent otherwise provided in this Agreement. Agent and each Lender hereby waive the requirement to deliver notice of prepayment
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pursuant to Section 2.3 of the Original Credit Agreement with respect to the Fourth Amendment Prepayment.
(c)Any failure by Borrowers to make the Fourth Amendment Prepayment on the date hereof shall constitute an immediate and automatic Event of Default under Section 10.1(a) of the Credit Agreement.
3.Certain Waivers and Agreements.
(a)Agent and each Lender agrees that, notwithstanding anything to the contrary herein or in any other Financing Document, after giving effect to the terms of this Agreement, (i) no Default or Event of Default has occurred and is continuing under Sections 10.1(l)(iv) or (n) of the Credit Agreement and (ii) any Default or Event of Default under Sections 10.1(c), (l)(iv) or (n) of the Credit Agreement that may have occurred on or prior to the date hereof is hereby waived ab initio, in each case, directly relating to, the Borrowers’ XCUR-FXN preclinical program described in Parent’s Form NT 10-Q and Form 10-Q filed with the SEC on November 15, 2021 and November 19, 2021, respectively.
(b)Agent and each Lender agrees that, if Borrowers cause the Obligations to be prepaid in cash in full on or prior to March 31, 2022, Agent and each Lender shall waive (i) the Applicable Prepayment Fee set forth in Credit Facility Schedule for Credit Facility #1 in full, and (ii) the unaccrued portion of the exit fee payable pursuant to paragraph 2 of the Fee Letter (as such amount is determined by Agent in its reasonable discretion in accordance with internal account practices) that would otherwise be due and payable on the Full Exit Fee Payment Date (as defined in the Fee Letter).
(c)The waivers and agreements set forth in Sections 2 and 3 hereof are effective solely for the purposes set forth herein and shall be limited precisely as written and shall not be deemed to (i) be a consent to any amendment, waiver or modification of any other term or condition of the Credit Agreement or of any other Financing Document; (ii) prejudice any right that Agent or Lenders have or may have in the future under or in connection with the Credit Agreement or any other Financing Document; (iii) except as provided in Section 3(a), constitute a consent to or waiver of any past, present or future Default or Event of Default or other violation of any provisions of the Credit Agreement or any other Financing Documents; or (iv) establish a custom or course of dealing among any of the Borrowers, on the one hand, or Agent or any Lender, on the other hand.
4.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 6 below, the Original Credit Agreement is hereby amended as follows:
(a)Section 2.3(d) of the Original Credit Agreement is hereby amended by adding the following sentence at the end thereof:
“Notwithstanding the foregoing or anything to the contrary herein, Borrowers shall have the right to make the Fourth Amendment Prepayment (as defined in Amendment No. 4) in accordance with, and on the terms set forth in, Amendment No. 4.”
(b)Section 6.6 of the Original Credit Agreement is hereby amended by adding a new subsection (d) at the end thereof as follows:
“(d) Notwithstanding anything to the contrary in this Agreement, Borrowers shall:
(i) by no later than 5:00 p.m. (Eastern time) on December 17, 2021 (or such later date Agent and Required Lenders may agree in writing in their sole discretion) and at all times thereafter, maintain at least $20,000,000 in Borrower Unrestricted Cash (or such lesser amount as Agent and the Required Lenders may agree in writing in their sole discretion) in Deposit Accounts (including, for the avoidance of doubt, the Blocked Account) at Silicon Valley Bank, which Deposit Accounts are subject at all times to Control Agreements;
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(ii) by no later than 5:00 p.m. (Eastern time) on December 17, 2021, cause Exicure Operating Company to open a segregated Deposit Account at Silicon Valley Bank (the “Blocked Account”) and cause to be executed a delivered to Agent a blocked account Control Agreement with respect to the Blocked Account, which agreement shall contain such terms and conditions as Agent may reasonably require, including providing that Borrowers shall have no access to the funds on deposit in Blocked Account and Silicon Valley Bank shall comply with solely with the instructions of the Agent as to the disposition of funds therein; and
(iii) by no later than 5:00 p.m. (Eastern time) on December 17, 2021 (or such later date Agent and Required Lenders may agree in writing in their sole discretion) and at all times thereafter, deposit and maintain at least $8,000,000 in Borrower Unrestricted Cash (or such lesser amount as Agent and the Required Lenders may agree in writing in their sole discretion) in the Blocked Account.
(c)Article 15 of the Original Credit Agreement is amended to add the following defined term in alphabetical order:
““Amendment No. 4” means that certain Amendment No. 4 to Credit and Security Agreement, dated as of December 10, 2021, by and among the Borrowers, the Agent and the Lenders party thereto.”
(d)The definition of Springing IP Lien Event in Article 15 of the Original Credit Agreement is amended by relacing such definition in its entirety with the following:
“Springing IP Lien Event” means that, on any date, the Borrowers have allowed, as of the close of business on such date, the aggregate Borrower Unrestricted Cash maintained in Deposit Accounts at Silicon Valley Bank to be less than $20,000,000.
(e)Credit Facility Schedule for Credit Facility #2 attached to the Original Credit Agreement is hereby amended by replacing the definition of Commitment Termination Date therein in its entirety with the following:
“Commitment Termination Date: December 9, 2021.”
5.Representations and Warranties; Reaffirmation of Security Interest.
(a)Each Borrower hereby confirms that, after giving effect to this Agreement, 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 Borrowers 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 in all material respects as of such 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.
(b)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.
6.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:
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(a)Agent shall have received (including by way of facsimile or other electronic transmission) a duly authorized, executed and delivered counterpart of the signature page to this Agreement from Borrowers, Agent and the Lenders;
(b)After giving effect to the agreements set forth herein, all representations and warranties of Borrowers 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 in all material respects as of such 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 (and such parties’ delivery of their respective signatures hereto shall be deemed to be its certification thereof);
(c)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)Agent shall have received the Fourth Amendment Prepayment in immediately available funds on the date hereof in accordance with Section 2.
7.Release. In consideration of the agreements of Agent and 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 of 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, 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, now known or of which the Releasing Parties would reasonably be expected to know, 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 any 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, in each case, based in whole or in part on facts now known to exist before the date hereof. Each Borrower acknowledges that the foregoing release is a material inducement to Agent’s and each Lender’s decision to enter into this Agreement and agree to the modifications contemplated hereunder, and has been relied upon by Agent and Lenders in connection therewith. Without limiting the terms and conditions set forth in the Credit Agreement, the general release set forth in this Section 7 shall not extend to, and shall not include, any obligations of Agent and the Lenders to make the Credit Extensions after the date of this Agreement to Borrowers in accordance with the terms of the Credit Agreement.
8.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, except as expressly provided in this Agreement. 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.
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9.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 Borrowers. Each Borrower covenants and agrees to comply with all of the terms, covenants and conditions of the Credit Agreement 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 amendment to such terms, covenants and conditions.
10.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 Borrowers.
(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 NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES (OTHER THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW).
(c)WAIVER OF JURY TRIAL. BORROWERS, AGENT AND THE LENDERS PARTY HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY AND AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY. EACH BORROWER, AGENT 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 THAT EACH WILL CONTINUE TO RELY ON THIS WAIVER IN THEIR RELATED FUTURE DEALINGS. EACH BORROWER, AGENT 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.
(d)Incorporation of Credit Agreement Provisions. The provisions contained in Article 12 (Choice of law; venue and jury trial waiver) and Section 13.2 (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. 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
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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.
(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.
(h)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.
(i) 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, the undersigned have executed this Agreement 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 | |||||||
| Name: | Xxxxxxx Xxxxxxxx | |||||||
| Title: | Authorized Signatory | |||||||
LENDERS: 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 | |||||||
| Name: | Xxxxxxx Xxxxxxxx | |||||||
| Title: | Authorized Signatory | |||||||
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LENDERS: SILICON VALLEY BANK
| By: | /s/ Xxxxxxxx Xxxxxx | |||||||
| Name: | Xxxxxxxx Xxxxxx | |||||||
| Title: | Director | |||||||
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LENDERS: ELM 2020-4 TRUST
By: MidCap Financial Services Capital Management, LLC, as Servicer
| By: | /s/ Xxxx Xxx | |||||||
| Name: | Xxxx Xxx | |||||||
| Title: | Authorized Signatory | |||||||
ELM 2020-3 TRUST
By: MidCap Financial Services Capital Management, LLC, as Servicer
| By: | /s/ Xxxx Xxx | |||||||
| Name: | Xxxx Xxx | |||||||
| Title: | Authorized Signatory | |||||||
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BORROWERS: EXICURE, INC.
| By: | /s/ Xxxxx X. Xxxx | |||||||
| Name: | Xxxxx X. Xxxx | |||||||
| Title: | Chief Financial Officer | |||||||
EXICURE OPERATING COMPANY
| By: | /s/ Xxxxx X. Xxxx | |||||||
| Name: | Xxxxx X. Xxxx | |||||||
| Title: | Chief Financial Officer | |||||||
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