WEST\277369211 368986-000133 SECOND AMENDMENT TO LOAN AND SECURITY AGREEMENT THIS SECOND AMENDMENT to Loan and Security Agreement (this “Amendment”) is entered into as of June 30, 2017, by and between OXFORD FINANCE LLC, a Delaware limited liability...
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SECOND AMENDMENT TO
LOAN AND SECURITY AGREEMENT
THIS SECOND AMENDMENT to Loan and Security Agreement (this “Amendment”) is entered into as
of June 30, 2017, by and between OXFORD FINANCE LLC, a Delaware limited liability company with an office
located at 000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000 (“Oxford”), as collateral agent (in such capacity,
“Collateral Agent”), the Lenders listed on Schedule 1.1 of the Loan Agreement (as defined below) or otherwise party
thereto from time to time (each a “Lender” and collectively, the “Lenders”) including Oxford in its capacity as a
Lender and CONFORMIS, INC., a Delaware corporation (“ConforMIS”) and IMATX, INC., a California
corporation (“ImaTx” and individually, collectively, jointly and severally with ConforMIS, “Borrower”).
RECITALS
A. Collateral Agent, Lenders and Borrower have entered into that certain Loan and Security Agreement
dated as of January 6, 2017, as amended by that certain First Amendment to Loan and Security Agreement dated as
of March 9, 2017 (as amended from time to time, the “Loan Agreement”).
B. Lenders have extended credit to Borrower for the purposes permitted in the Loan Agreement.
C. Borrower has requested that Collateral Agent and Lenders (i) modify the financial covenant in
Section 6.8 of the Loan Agreement; and (ii) make certain other revisions to the Loan Agreement as more fully set
forth herein.
D. Collateral Agent and Lenders have agreed to modify such covenant, but only to the extent, in
accordance with the terms, subject to the conditions and in reliance upon the representations and warranties set forth
below.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals and other good and valuable consideration, the
receipt and adequacy of which is hereby acknowledged, and intending to be legally bound, the parties hereto agree as
follows:
1. Definitions. Capitalized terms used but not defined in this Amendment shall have the meanings
given to them in the Loan Agreement.
2. Amendment to Loan Agreement.
2.1 Section 13.1 (Definitions). The following term and its respective definition hereby is
amended and restated in its entirety, as applicable, to Section 13.1 of the Loan Agreement as follows:
“Second Draw Period” is the period commencing on date Borrower demonstrates in
writing to the reasonable satisfaction of Collateral Agent that Borrower has achieved (a) trailing six
(6) months Product Revenue of at least Thirty-Eight Million Dollars ($38,000,000.00) (the “Six
Month Term B Revenue Milestone”) and (b) trailing twelve (12) months Product Revenue of at least
Seventy-Nine Million Five Hundred Thousand Dollars ($79,500,000.00) (the “Twelve Month Term
B Revenue Milestone”) and ending on the earliest of (i) June 30, 2017 and (ii) the occurrence of an
Event of Default. For the sake of clarity, the Second Draw Period shall commence on the first
measuring date on which the Six Month Term B Revenue Milestone and the Twelve Month Term
B Revenue Milestone are achieved concurrently.
2.2 Section 6.8 (Financial Covenant). Section 6.8(a) of the Loan Agreement hereby is
amended and restated in its entirety as follows:
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be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium or other similar laws of general
application and equitable principles relating to or affecting creditors’ rights.
5. Counterparts. This Amendment may be executed in any number of counterparts and all of such
counterparts taken together shall be deemed to constitute one and the same instrument.
6. Effectiveness. This Amendment shall be deemed effective upon (i) the due execution and delivery
to Collateral Agent and Lender of this Amendment by each party hereto, (ii) the funding of the Term B Loan, (iii)
Borrower’s payment of Fifty Thousand Dollars ($50,000.00) as an amendment fee, which has been fully earned and
is non-refundable as of the date of this Amendment, to be shared by the Lenders in accordance with their respective
Pro Rata Shares, and (iv) Borrower’s payment of all Lenders’ Expenses incurred through the date of this Amendment.
[Balance of Page Intentionally Left Blank]
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