FIRST AMENDING AGREEMENT TO AMENDED AND RESTATED TERM LOAN AGREEMENT
Exhibit 99.2
Execution Version
FIRST
AMENDING AGREEMENT TO
AMENDED AND RESTATED TERM LOAN AGREEMENT
dated as of March 27, 2018
between
as Borrower,
The Subsidiary Guarantors from Time to Time Party Hereto,
The Lenders from Time to Time Party Hereto,
and
CRG SERVICING LLC
as Administrative and Collateral Agent
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FIRST AMENDING AGREEMENT TO THE AMENDED AND RESTATED TERM LOAN AGREEMENT, dated as of March 27, 2018 (this “Amending Agreement”) among Cardiome Pharma Corp., as Borrower, the Subsidiary Guarantors party hereto, the Lenders party hereto and CRG Servicing LLC, as Administrative Agent.
RECITALS
WHEREAS the Borrower, the Subsidiary Guarantors, the Lenders and the Administrative Agent are parties to the Amended and Restated Term Loan Agreement dated as of May 11, 2017 (the “Credit Agreement”);
AND WHEREAS the Borrower, the Subsidiary Guarantors, the Lenders and the Administrative Agent have agreed to amend certain provisions of the Credit Agreement in the manner and on the terms and conditions provided for herein.
NOW THEREFORE for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
ARTICLE
1
definitions
| 1.1 | Definitions |
All capitalized terms not otherwise defined herein shall have the meanings ascribed thereto in the Credit Agreement.
ARTICLE
2
amendmentS
| 2.1 | Amendments to Credit Agreement |
1) Section 1.01 of the Credit Agreement is hereby amended by adding the following definition in the applicable alphabetical order:
“First Amendment” means the First Amending Agreement to this Agreement dated as of March 27, 2018.
2) Section 1.01 of the Credit Agreement is hereby amended by deleting the definition of “Warrants” therein and replacing such definition with:
“Warrants” means the warrants to purchase Equity Interests of Borrower, issued by Borrower to the Lender as an inducement for the Lenders to agree to the amendments to the Original Agreement and to the First Amendment.
3) Section 7.23 of the Credit Agreement is hereby deleted in its entirety.
4) Section 10.02 of the Credit Agreement is hereby deleted in its entirety and replaced with the following:
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10.02 Minimum Revenue. Borrower and its Subsidiaries shall have annual Revenue from sales of the Product (for each respective calendar year, the “Minimum Required Revenue”):
| a) | during the twelve month period beginning on January 1, 2016, of at least $[redacted]; |
| b) | during the twelve month period beginning on January 1, 2017, of at least $[redacted]; |
| c) | during the twelve month period beginning on January 1, 2018, of at least $[redacted]; |
| d) | during the twelve month period beginning on January 1, 2019, of at least $[redacted]; |
| e) | during the twelve month period beginning on January 1, 2020, of at least $[redacted]; |
| f) | during the twelve month period beginning on January 1, 2021, of at least $[redacted]; |
| g) | during the twelve month period beginning on January 1, 2022 and all successive twelve month periods thereafter, of at least $[redacted], |
or, in each case above, an Equivalent Amount in Canadian dollars if all annual Revenue from sales of the Product is received in Canadian dollars.
5) Schedule 1 of the Credit Agreement is hereby amended by deleting the table under the heading “WARRANT SHARES” therein in its entirety and replacing such table with the following:
| Lender | Number of shares of common stock subject to the Warrants as at the date of this Agreement | Number of shares of common stock subject to the Warrants provided on the date of the First Amendment | Total Number of shares of common stock subject to the Warrants |
| CRG Partners III – Parallel Fund “A” L.P. | 48,930 | 55,951 | 104,850 |
| CRG Partners III L.P. | 91,280 | 104,319 | 195,600 |
| CRG Partners III (Cayman) L.P. | 209,790 | 239,730 | 449,550 |
| CRG Partners III – Parallel Fund “B” (Cayman) L.P. | 350,000 | 400,000 | 750,000 |
| TOTAL | 700,000 | 800,000 | 1,500,000 |
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ARTICLE
3
conditions precedent
| 3.1 | Conditions Precedent |
This Amending Agreement shall become effective if and when:
| (a) | the Administrative Agent shall have received this Amending Agreement duly executed and delivered by the Administrative Agent, the Lenders, the Borrower and the Subsidiary Guarantors; |
| (b) | no Event of Default shall have occurred and be continuing; |
| (c) | the Borrower shall have paid all fees and expenses owing the Administrative Agent and the Lenders as of the date of this Amending Agreement; and |
| (d) | each Lender has received additional Warrants (as such term is defined in the Credit Agreement as amended by this Amendment Agreement) duly executed by the Borrower so that the total number of shares of common stock of the Borrower subject to the Warrants will equal the number opposite the name of such Lender in Schedule 1 to the Credit Agreement after giving effect to this Amending Agreement and evidence satisfactory to such Lender that the issue of all Warrants and the common stock of the Borrower issuable on the valid exercise of such Warrants has been approved by the Toronto Stock Exchange. |
ARTICLE
4
representations and warranties
| 4.1 | Representations and Warranties True and Correct; No Default or Event of Default |
Each Obligor hereby represents and warrants to the Administrative Agent and the Lenders that after giving effect to this Amending Agreement, (i) each of the representations and warranties of the Obligors contained in the Credit Agreement and each of the other Loan Documents is true and correct on, and as of the date hereof as if made on such date (except to the extent that such representation or warranty expressly relates to an earlier date and except for changes therein expressly permitted or expressly contemplated by the Credit Agreement) and (ii) no event has occurred and is continuing which constitutes or would constitute a Default or an Event of Default.
ARTICLE 5
SUBSIDIARY GUARANTOR CONFIRMATION
| 5.1 | Subsidiary Guarantor Confirmation |
Each Subsidiary Guarantor acknowledges and agrees that each Guarantee to which it is a party continues to be valid and enforceable against such Subsidiary Guarantor in accordance with its terms and continues to guarantee the obligations set out therein. Further, in connection with the Credit Agreement as amended by this Amending Agreement, each Subsidiary Guarantor hereby ratifies, confirms, acknowledges and agrees that such Subsidiary Guarantor is and continues to be bound by all of the obligations, indebtedness and liabilities of, and grants of security made by, such Subsidiary Guarantor under the Loan Documents to which each is a party.
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ARTICLE
6
miscellaneous
| 6.1 | No Other Amendments, Waivers or Consents |
Except as expressly set forth herein, the Credit Agreement and all Credit Documents shall be unmodified and shall continue to be in full force and effect in accordance with their terms. The execution, delivery and effectiveness of the waiver and amendments in this Amending Agreement shall not be deemed to be a waiver of compliance in the future or a waiver of any preceding or succeeding breach of any covenant or provision of the Credit Agreement.
| 6.2 | Time |
Time is of the essence in the performance of the parties’ respective obligations in this Amending Agreement.
| 6.3 | Governing Law |
This Amending Agreement and the rights and obligations of the parties hereunder shall be governed by, and construed in accordance with, the law of the State of New York, without regard to principles of conflicts of laws that would result in the application of the laws of any other jurisdiction; provided that Section 5-1401 of the New York General Obligations Law shall apply.
| 6.4 | Successors and Assigns |
This Amending Agreement shall enure to the benefit of and be binding upon the parties hereto and their respective successors and any assigns, transferees and endorsees of the Administrative Agent or any Lender. Nothing in this Amending Agreement, express or implied, shall give to any Person, other than the parties hereto and their successors hereunder, any benefit or any legal or equitable right, remedy or claim under this Amending Agreement.
| 6.5 | Counterparts |
This Amending Agreement may be executed by the parties hereto in counterparts and may be executed and delivered by facsimile or other electronic means and all such counterparts and facsimiles shall together constitute one and the same agreement.
[Remainder of page intentionally left blank – signature pages follow]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered as of the day and year first above written.
BORROWER:
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Title:
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Address for Notices: 0000 Xxxxxxxxx Xxxxx 0xx Xxxxx Xxxxxxxxx, XX X0X 0X0 Xxxxxx
Attn: Legal Affairs Tel.: (000) 000-0000 Fax: (000) 000-0000 Email: xxxxxxxxxxxx@xxxxxxxx.xxx | |||
Signature Page to First Amending Agreement
SUBSIDIARY GUARANTORS:
CARDIOME, INC.
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Address for Notices: c/o Corporation Service Company 0000 Xxxxxxxxxxx Xxxx Xxxxx 000 Xxxxxxxxxx, XX 00000 XXX
with a copy to: c/o Cardiome Pharma Corp. 0000 Xxxxxxxxx Xxxxx 0xx Xxxxx Xxxxxxxxx, XX X0X 0X0 Xxxxxx
Attn: Legal Affairs Tel.: (000) 000-0000 Fax: (000) 000-0000 Email: xxxxxxxxxxxx@xxxxxxxx.xxx | |||
Signature Page to First Amending Agreement
ARTESIAN THERAPEUTICS, INC.
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Address for Notices: c/o Corporation Service Company 0000 Xxxxxxxxxxx Xxxx Xxxxx 000 Xxxxxxxxxx, XX 00000 XXX
with a copy to: c/o Cardiome Pharma Corp. 0000 Xxxxxxxxx Xxxxx 0xx Xxxxx Xxxxxxxxx, XX X0X 0X0 Xxxxxx
Attn: Legal Affairs Tel.: (000) 000-0000 Fax: (000) 000-0000 Email: xxxxxxxxxxxx@xxxxxxxx.xxx | |||
Signature Page to First Amending Agreement
CORREVIO LLC
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Title:
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Title:
Address for Notices: Correvio LLC 0 Xxxxxxxxx Xxxxx Xxxxx 000 Xxxxxx Xxxx, XX 00000 XXX
with a copy to: c/o Cardiome Pharma Corp. 0000 Xxxxxxxxx Xxxxx 0xx Xxxxx Xxxxxxxxx, XX X0X 0X0 Xxxxxx
Attn: Legal Affairs Tel.: (000) 000-0000 Fax: (000) 000-0000 Email: xxxxxxxxxxxx@xxxxxxxx.xxx | |||
Signature Page to First Amending Agreement
CARDIOME INTERNATIONAL SA
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Address for Notices: Rue des Alpes 21 Xxxx xxxxxxx 0000 0000 Xxxxxx, Xxxxxxxxxxx
with a copy to: c/o Cardiome Pharma Corp. 0000 Xxxxxxxxx Xxxxx 0xx Xxxxx Xxxxxxxxx, XX X0X 0X0 Xxxxxx
Attn: Legal Affairs Tel.: (000) 000-0000 Fax: (000) 000-0000 Email: xxxxxxxxxxxx@xxxxxxxx.xxx | |||
Signature Page to First Amending Agreement
CORREVIO INTERNATIONAL SARL
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Title:
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Address for Notices: Xxx xxx Xxxxx 00 0000 Xxxxxx Xxxxxxxxxxx
with a copy to: c/o Cardiome Pharma Corp. 0000 Xxxxxxxxx Xxxxx 0xx Xxxxx Xxxxxxxxx, XX X0X 0X0 Xxxxxx
Attn: Legal Affairs Tel.: (000) 000-0000 Fax: (000) 000-0000 Email: xxxxxxxxxxxx@xxxxxxxx.xxx | |||
Signature Page to First Amending Agreement
CORREVIO (UK) LTD.
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Address for Notices: Xxxxxxxx Xxxxx 0 Xxxxxxxxxxx Xxx, Xxxxxxxx Park, Uxbridge, Xxxxxxxxx, XX00 0XX Xxxxxx Xxxxxxx
with a copy to: c/o Cardiome Pharma Corp. 0000 Xxxxxxxxx Xxxxx 0xx Xxxxx Xxxxxxxxx, XX X0X 0X0 Xxxxxx
Attn: Legal Affairs Tel.: (000) 000-0000 Fax: (000) 000-0000 Email: xxxxxxxxxxxx@xxxxxxxx.xxx | |||
Signature Page to First Amending Agreement
CARDIOME UK LIMITED
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Address for Notices: Xxxxxxxx Xxxxx 0 Xxxxxxxxxxx Xxx, Xxxxxxxx Park, Uxbridge, Xxxxxxxxx, XX00 0XX Xxxxxx Xxxxxxx
with a copy to: c/o Cardiome Pharma Corp. 0000 Xxxxxxxxx Xxxxx 0xx Xxxxx Xxxxxxxxx, XX X0X 0X0 Xxxxxx
Attn: Legal Affairs Tel.: (000) 000-0000 Fax: (000) 000-0000 Email: xxxxxxxxxxxx@xxxxxxxx.xxx | |||
Signature Page to First Amending Agreement
CORREVIO GMBH
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Title:
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Address for Notices: Xxxxxxxx Xxxxxxx Xxx. 0X 00000 Xxxxxxxxx Xxxxxxx
with a copy to: c/o Cardiome Pharma Corp. 0000 Xxxxxxxxx Xxxxx 0xx Xxxxx Xxxxxxxxx, XX X0X 0X0 Xxxxxx
Attn: Legal Affairs Tel.: (000) 000-0000 Fax: (000) 000-0000 Email: xxxxxxxxxxxx@xxxxxxxx.xxx | |||
Signature Page to First Amending Agreement
ADMINISTRATIVE AGENT:
CRG SERVICING LLC | |||
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Address for Notices: 0000 Xxxx Xxxxxx Xxxxx 0000 Xxxxxxx, XX 00000
Attn: General Counsel Tel.: (000) 000-0000 Fax: (000) 000-0000 Email: xxxxxxxxxx@xxxxx.xxx | |||
Signature Page to First Amending Agreement
LENDERS:
CRG PARTNERS III L.P. By CRG PARTNERS III GP L.P., its General Partner By CRG PARTNERS III GP LLC, its General Partner
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Address for Notices: 0000 Xxxx Xxxxxx Xxxxx 0000 Xxxxxxx, XX 00000
Attn: General Counsel Tel.: (000) 000-0000 Fax: (000) 000-0000 Email: xxxxxxxxxx@xxxxx.xxx | |||
CRG PARTNERS III – PARALLEL FUND “A” L.P. By CRG PARTNERS III – PARALLEL FUND “A” GP L.P., its General Partner By CRG PARTNERS III – PARALLEL FUND “A” GP LLC, its General Partner
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Address for Notices: 0000 Xxxx Xxxxxx Xxxxx 0000 Xxxxxxx, XX 00000
Attn: General Counsel Tel.: (000) 000-0000 Fax: (000) 000-0000 Email: xxxxxxxxxx@xxxxx.xxx | |||
Signature Page to First Amending Agreement
CRG PARTNERS III (CAYMAN) L.P. By CRG PARTNERS III (CAYMAN) GP L.P., its General Partner By CRG PARTNERS III (CAYMAN) GP LLC, its General Partner
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Address for Notices: 0000 Xxxx Xxxxxx Xxxxx 0000 Xxxxxxx, XX 00000
Attn: General Counsel Tel.: (000) 000-0000 Fax: (000) 000-0000 Email: xxxxxxxxxx@xxxxx.xxx | |||
CRG PARTNERS III – PARALLEL FUND “B” (CAYMAN) L.P. By CRG PARTNERS III (CAYMAN) GP L.P., its General Partner By CRG PARTNERS III (CAYMAN) GP LLC, its General Partner
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Address for Notices: 0000 Xxxx Xxxxxx Xxxxx 0000 Xxxxxxx, XX 00000
Attn: General Counsel Tel.: (000) 000-0000 Fax: (000) 000-0000 Email: xxxxxxxxxx@xxxxx.xxx | |||
Signature Page to First Amending Agreement
