FOURTH AMENDMENT TO AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
Exhibit 10.34
FOURTH AMENDMENT TO AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
THIS FOURTH AMENDMENT to Amended and Restated Loan and Security Agreement (this “Amendment”) is entered into as of October 23, 2020, by and among 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 to the Loan Agreement (as defined below) or otherwise a party thereto from time to time including Oxford in its capacity as a Lender and SILICON VALLEY BANK, a California corporation with an office located at 0000 Xxxxxx Xxxxx, Xxxxx Xxxxx, XX 00000 (“Bank” or “SVB”) (each a “Lender” and collectively, the “Lenders”), and XERIS PHARMACEUTICALS, INC., a Delaware corporation with offices located at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, XX 00000 (“Borrower”).
A. WHEREAS, Collateral Agent, Borrower and Lenders have entered into that certain Amended and Restated Loan and Security Agreement dated as of September 10, 2019 (as amended, supplemented or otherwise modified from time to time, including by that certain First Amendment to Amended and Restated Loan and Security Agreement dated as of April 21, 2020, that certain Second Amendment to Amended and Restated Loan and Security Agreement dated as of June 30, 2020, and that Third Amendment to Amended and Restated Loan and Security Agreement dated as of August 5, 2020, collectively, the “Loan Agreement”) pursuant to which Lenders have provided to Borrower certain loans in accordance with the terms and conditions thereof; and
B. WHEREAS, Borrower has requested that Collateral Agent and Lenders (i) make Credit Extensions to Borrower and (ii) make certain other revisions to the Loan Agreement as more fully set forth herein; and
C. WHEREAS, Borrower, Lenders and Collateral Agent desire to amend certain provisions of the Loan Agreement as provided herein and subject to the terms and conditions set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the promises, covenants and agreements contained herein, and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, Borrower, Lenders and Collateral Agent hereby 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. Amendments to Loan Agreement.
2.1 Section 2.2 (Term Loans). Section 2.2(a)(iv) of the Loan Agreement is hereby amended and restated in its entirety as follows:
“(iv) Subject to the terms and conditions of this Agreement, the Lenders agree, severally and not jointly, during the Third Draw Period, to make term loans in a single disbursement to Borrower in an aggregate amount equal to Ten Million Dollars ($10,000,000.00) according to each Lender’s Term C Loan Commitment as set forth on Schedule 1.1 hereto (such term loans are hereinafter referred to singly as a “Term C Loan”, and collectively as the “Term C Loans”). After repayment, no Term C Loan may be re-borrowed.”
2.2 Section 2.2 (Term Loans). New Section 2.2(a)(v) is hereby added to the end of Section 2.2(a) of the Loan Agreement as follows:
“(v) Subject to the terms and conditions of this Agreement, the Lenders agree, severally and not jointly, during the Fourth Draw Period, to make term loans in a single disbursement to Borrower in an aggregate amount equal to Three Million Five Hundred Thousand Dollars ($3,500,000.00) according to each Lender’s Term D Loan Commitment as set forth on Schedule 1.1 hereto (such term loans are hereinafter referred to singly as a “Term D Loan”, and collectively as the “Term D Loans”; each Term A
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Loan, Term B Loan, Term C Loan or Term D Loan is hereinafter referred to singly as a “Term Loan” and the Term A Loans, the Term B Loans, the Term C Loans and the Term D Loans are hereinafter referred to collectively as the “Term Loans”). After repayment, no Term D Loan may be re-borrowed.”
2.3 Section 13.1 (Definitions). The following terms and their respective definitions hereby are added or amended and restated in their entirety, as applicable, to Section 13.1 of the Loan Agreement as follows:
“Fourth Amendment Effective Date” is October 23, 2020.
“Fourth Draw Period” is the period commencing on the Fourth Amendment Effective Date and ending on the earlier of (i) November 16, 2020, and (ii) the occurrence of an Event of Default.
“Term D Loan” is defined in Section 2.2(a)(v) hereof.
“Term Loan” is defined in Section 2.2(a)(v) hereof.
2.4 Schedule 1.1 to the Loan Agreement hereby is replaced with Schedule 1.1 attached hereto.
3. Limitation of Amendment.
3.1 The amendments set forth above are effective for the purposes set forth herein and shall be limited precisely as written and shall not be deemed to (a) be a consent to any amendment, waiver or modification of any other term or condition of any Loan Document, or (b) otherwise prejudice any right, remedy or obligation which Lenders or Borrower may now have or may have in the future under or in connection with any Loan Document, as amended hereby.
3.2 This Amendment shall be construed in connection with and as part of the Loan Documents and all
terms, conditions, representations, warranties, covenants and agreements set forth in the Loan Documents are hereby ratified and confirmed and shall remain in full force and effect.
4. Representations and Warranties. To induce Collateral Agent and Lenders to enter into this Amendment, Borrower hereby represents and warrants to Collateral Agent and Lenders as follows:
4.1 Immediately after giving effect to this Amendment (a) the representations and warranties contained in the Loan Documents are true, accurate and complete in all material respects as of the date hereof (except (i) to the extent such representations and warranties relate to an earlier date, in which case they are true and correct as of such date and (ii) solely with respect to the litigation representation and warranties contained in Section 5.3 of the Loan Agreement, to the extent such representations and warranties relate to (x) any actual or potential dispute between Borrower and SVB based on, arising from, relating to, or in connection with the Borrower’s Paycheck Protection Program loan or (y) any settlement, release or other resolution thereof between SVB and the Borrower) and (b) no Event of Default has occurred and is continuing;
4.2 Borrower has the power and due authority to execute and deliver this Amendment and to perform its obligations under the Loan Agreement, as amended by this Amendment;
4.3 The organizational documents of Borrower delivered to Collateral Agent on the Effective Date, and updated pursuant to subsequent deliveries by or on behalf of the Borrower to the Collateral Agent, remain true, accurate and complete and have not been amended, supplemented or restated and are and continue to be in full force and effect;
4.4 The execution and delivery by Borrower of this Amendment and the performance by Borrower of its obligations under the Loan Agreement, as amended by this Amendment, do not contravene (i) any material law or regulation binding on or affecting Borrower, (ii) any material contractual restriction with a Person binding on Borrower, (iii) any material order, judgment or decree of any court or other governmental or public body or authority, or subdivision thereof, binding on Borrower, or (iv) the organizational documents of Borrower;
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4.5 The execution and delivery by Borrower of this Amendment and the performance by Borrower of its obligations under the Loan Agreement, as amended by this Amendment, do not require any order, consent, approval, license, authorization or validation of, or filing, recording or registration with, or exemption by any governmental or public body or authority, or subdivision thereof, binding on Borrower, except as already has been obtained or made;
4.6 This Amendment has been duly executed and delivered by Borrower and is the binding obligation of Borrower, enforceable against Borrower in accordance with its terms, except as such enforceability may 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. Effectiveness. This Amendment shall be deemed effective as of the date hereof upon the due execution, by
the parties thereto, and delivery to Collateral Agent and Lenders of: (a) this Amendment; and (b) the Corporate
Borrowing Certificate attached hereto.
6. Counterparts. This Amendment may be executed in any number of counterparts, each of which shall be
deemed an original, and all of which, taken together, shall constitute one and the same instrument. Delivery by
electronic transmission (e.g. “.pdf”) of an executed counterpart of this Amendment shall be effective as a manually
executed counterpart signature thereof.
7. Governing Law. This Amendment and the rights and obligations of the parties hereto shall be governed by
and construed in accordance with the laws of the State of New York.
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IN WITNESS WHEREOF, the parties hereto have caused this Fourth Amendment to the Amended and Restated Loan Agreement to be executed as of the date first set forth above.
BORROWER: | ||||||||
XERIS PHARMACEUTICALS, INC. | ||||||||
By /s/ Xxxxx X. Deutsch | ||||||||
Name: Xxxxx X. Deutsch | ||||||||
Title: Chief Financial Officer | ||||||||
COLLATERAL AGENT AND LENDER: | ||||||||
OXFORD FINANCE LLC | ||||||||
By /s/ Xxxxxxx X. Xxxxxxxxx | ||||||||
Name: Xxxxxxx X. Xxxxxxxxx | ||||||||
Title: Senior Vice President | ||||||||
LENDER: | ||||||||
SILICON VALLEY BANK | ||||||||
By /s/ Xxxxxxxx Xxxxxx | ||||||||
Name: Xxxxxxxx Xxxxxx | ||||||||
Title: Vice President | ||||||||
SCHEDULE 1.1
Lenders and Commitments
| Term A Loans | ||||||||
| Lender | Term Loan Commitment | Commitment Percentage | ||||||
| OXFORD FINANCE LLC | $48,000,000.00 | 80.00% | ||||||
| SILICON VALLEY BANK | $12,000,000.00 | 20.00% | ||||||
| TOTAL | $60,000,000.00 | 100.00% | ||||||
| Term B Loans | ||||||||
| Lender | Term Loan Commitment | Commitment Percentage | ||||||
| OXFORD FINANCE LLC | $12,000,000.00 | 80.00% | ||||||
| SILICON VALLEY BANK | $3,000,000.00 | 20.00% | ||||||
| TOTAL | $15,000,000.00 | 100.00% | ||||||
| Term C Loans | ||||||||
| Lender | Term Loan Commitment | Commitment Percentage | ||||||
| OXFORD FINANCE LLC | $8,000,000.00 | 80.00% | ||||||
| SILICON VALLEY BANK | $2,000,000.00 | 20.00% | ||||||
| TOTAL | $10,000,000.00 | 100.00% | ||||||
| Term D Loans | ||||||||
| Lender | Term Loan Commitment | Commitment Percentage | ||||||
| OXFORD FINANCE LLC | $0.00 | 0.00% | ||||||
| SILICON VALLEY BANK | $3,500,000.00 | 100.00% | ||||||
| TOTAL | $3,500,000.00 | 100.00% | ||||||
| Aggregrate (all Term Loans) | ||||||||
| Lender | Term Loan Commitment | Commitment Percentage | ||||||
| OXFORD FINANCE LLC | $68,000,000.00 | 76.8362% | ||||||
| SILICON VALLEY BANK | $20,500,000.00 | 23.1638% | ||||||
| TOTAL | $88,500,000.00 | 100.00% | ||||||
