LOAN AND SECURITY AGREEMENT
Exhibit 10.16
CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY [***], HAS BEEN OMITTED BECAUSE CASTLE BIOSCIENCES, INC. HAS
DETERMINED THE INFORMATION (I) IS NOT MATERIAL AND (II) WOULD LIKELY CAUSE COMPETITIVE HARM TO CASTLE BIOSCIENCES, INC. IF PUBLICLY DISCLOSED.
THIS LOAN AND SECURITY AGREEMENT (as the same
may from time to time be amended, modified, supplemented or restated, this “Agreement”) dated as of November 30, 2018 (the “Effective Date”) 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 hereof or otherwise a party hereto 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 CASTLE
BIOSCIENCES, INC., a Delaware Corporation with offices located at 000 Xxxxx Xxxxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxxx, XX 00000 (“Borrower”), provides the
terms on which the Lenders shall lend to Borrower and Borrower shall repay the Lenders. The parties agree as follows:
1. ACCOUNTING AND OTHER TERMS
1.1 Accounting terms not defined in
this Agreement shall be construed in accordance with GAAP. Calculations and determinations must be made in accordance with GAAP. Capitalized terms not otherwise defined in this Agreement shall have the meanings set forth in Section 13. All other
terms contained in this Agreement, unless otherwise indicated, shall have the meaning provided by the Code to the extent such terms are defined therein. All references to “Dollars” or “$” are United States Dollars, unless otherwise noted.
2. LOANS AND TERMS OF PAYMENT
2.1 Promise to Pay. Borrower hereby unconditionally promises to pay each Lender, the outstanding principal amount of all Term Loans advanced to Borrower by such Lender and accrued and unpaid
interest thereon and any other amounts due hereunder as and when due in accordance with this Agreement.
2.2 Term Loan.
(a) Availability. Subject to the terms and conditions of this Agreement, the Lenders agree, severally and not jointly, to make term loans to Borrower on the Effective Date in an aggregate amount of Twenty Million Dollars
($20,000,000) according to each Lender’s Term Loan Commitment as set forth on Schedule 1.1 hereto (such term loans are hereinafter referred to singly as a “Term Loan”, and collectively as the “Term Loans”). After repayment, no
Term Loan may be re‑borrowed.
(b) Repayment. Borrower shall make monthly payments of interest only commencing on the first (1st) Payment Date following the Funding Date of the
Term Loan, and continuing on the Payment Date of each successive month thereafter through and including the Payment Date immediately preceding the Amortization Date. Borrower agrees to pay, on the Funding Date of the Term Loan, any initial partial
monthly interest payment otherwise due for the period between the Funding Date of the Term Loan and the first Payment Date thereof. Commencing on the Amortization Date, and continuing on the Payment Date of each month thereafter, Borrower shall
make consecutive equal monthly payments of principal, together with applicable interest, in arrears, to each Lender, as calculated by Collateral Agent (which calculations shall be deemed correct absent manifest error) based upon: (1) the amount of
such Lender’s Term Loan, (2) the effective rate of interest, as determined in Section 2.3(a), and (3) a repayment schedule equal to thirty (30) months. All unpaid principal and accrued and unpaid interest with respect to the Term Loan is due and
payable in full on the Maturity Date. The Term Loan may only be prepaid in accordance with Sections 2.2(c) and 2.2(d).
(c) Mandatory Prepayments. If the Term Loans are accelerated following the occurrence of an Event of Default, Borrower shall immediately pay to Lenders, payable to each Lender in accordance with its respective Pro Rata Share,
an amount equal to the sum of: (i) all outstanding principal of the Term Loans plus accrued and unpaid interest thereon through the prepayment date, (ii) the Final Payment, (iii) the Prepayment Fee, plus (iv) the Early Termination Fee, plus (v) all
other Obligations that are due and payable, including Lenders’ Expenses and interest at the Default Rate with respect to any past due amounts. Notwithstanding (but without duplication with) the foregoing, on the Maturity Date, if the Final Payment
had not previously been paid in full in connection with the prepayment of the Term Loans in full, Borrower shall pay to Collateral Agent, for payment to each Lender in accordance with its respective Pro Rata Share, the Final Payment in respect of
the Term Loans.
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(d) Permitted Prepayment of Term Loans. Borrower shall have the option to prepay all, but not less than all, of the Term Loans advanced by the Lenders under this Agreement, provided Borrower (i) provides written notice to
Collateral Agent of its election to prepay the Term Loans at least fifteen (15) days prior to such prepayment, and (ii) pays to the Lenders on the date of such prepayment, payable to each Lender in accordance with its respective Pro Rata Share, an
amount equal to the sum of (A) all outstanding principal of the Term Loans plus accrued and unpaid interest thereon through the prepayment date, (B) the Final Payment, (C) the Prepayment Fee, plus (D) the Early Termination Fee, plus (E) all other
Obligations that are due and payable, including Lenders’ Expenses and interest at the Default Rate with respect to any past due amounts. Notwithstanding the foregoing, no Prepayment Fee shall be charged if the Term Loans are refinanced with a new
facility from both of the Lenders.
2.3 Revolving Advances.
(a) Availability. Subject to the terms and conditions of this Agreement and to deduction of Reserves, the Lenders agree, severally and not jointly, (to lend to Borrower from time to time prior to the Revolving Line Maturity
Date, according to each Lender’s pro rata share of the Revolving Line (based upon the respective Revolving Line Commitment Percentage of each Lender), Revolving Advances not to exceed the Availability Amount. Amounts borrowed under the Revolving
Line may be repaid and, prior to the Revolving Line Maturity Date, reborrowed, subject to the applicable terms and conditions precedent herein.
(b) Termination; Repayment. Borrower shall make monthly payments of interest commencing on the first (1st) Payment Date following the Funding
Date of any Revolving Advance, and continuing on the Payment Date of each successive month thereafter so long as any Revolving Advances remain outstanding. In the event that a Streamline Period is not in effect, Borrower shall make payment of
interest monthly consistent with the foregoing sentence and repay the principal amount of any Revolving Advance, together with any applicable accrued and unpaid interest, upon collection of the specific Eligible Receivable financed by such
Revolving Advance. The Revolving Line terminates on the Revolving Line Maturity Date, when the principal amount of all Revolving Advances, the unpaid interest thereon, and all other Obligations relating to the Revolving Line shall be immediately
due and payable.
(c) Overadvances. If, at any time, the outstanding principal amount of any Revolving Advances exceeds the lesser of either the Revolving Line or the Borrowing Base, Borrower shall immediately pay to Collateral Agent, for the
ratable benefit of the Lenders, in cash the amount of such excess (such excess, the “Overadvance”). Without limiting Borrower’s obligation to repay any
Overadvance, Borrower agrees to pay Collateral Agent, for the ratable benefit of the Lenders, interest on the outstanding amount of any Overadvance, on demand, at the Default Rate.
2.4 Payment of
Interest on the Credit Extensions.
(a) Interest Rate. Subject to Section 2.4(b), the principal amount of the outstanding Credit Extensions shall accrue interest at a floating per annum rate equal to the Basic Rate, determined by Collateral Agent on the Funding
Date of the applicable Credit Extension and thereafter, which interest shall be payable monthly in arrears in accordance with Sections 2.2(b), 2.3(b) and 2.4(e). Notwithstanding the foregoing, monthly interest with respect to the Revolving
Advances shall equal to the greater of (i) interest at a floating per annum rate equal to the Basic Rate, as determined by Collateral Agent from time to time, on the actual Revolving Advances outstanding, or (ii) interest at a floating per annum
rate equal to the Basic Rate, as determined by Collateral Agent from time to time, on an amount equal to [***] percent ([***]%) of the Revolving Line Commitments. Interest shall accrue on each Credit Extension commencing on, and including, the
Funding Date of such Credit Extension, and shall accrue on the principal amount outstanding under such Credit Extension through and including the day on which such Credit Extension is paid in full.
(b) Default Rate. Immediately upon the occurrence and during the continuance of an Event of Default, Obligations shall accrue interest at a floating per annum rate equal to the rate that is otherwise applicable thereto plus
five percentage points (5.00%) (the “Default Rate”). Payment or acceptance of the increased interest rate provided in this Section 2.4(b) is not a permitted
alternative to timely payment and shall not constitute a waiver of any Event of Default or otherwise prejudice or limit any rights or remedies of Collateral Agent.
[***]=Certain Confidential Information Omitted
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(c) 360‑Day Year. Interest shall be computed on the basis of a three hundred sixty (360) day year, and the actual number of days elapsed.
(d) Debit of Accounts. Collateral Agent and each Lender may debit (or ACH) any deposit accounts, maintained by Borrower or any of its Subsidiaries, including the Designated Deposit Account, for principal and interest payments
or any other amounts Borrower owes the Lenders under the Loan Documents when due. Any such debits (or ACH activity) shall not constitute a set‑off.
(e) Payments. Except as otherwise expressly provided herein, all payments by Borrower under the Loan Documents shall be made to the respective Lender to which such payments are owed, at such Lender’s office in immediately
available funds on the date specified herein. Unless otherwise provided, interest is payable monthly on the Payment Date of each month. Payments of principal and/or interest received after 12:00 noon Eastern time are considered received at the
opening of business on the next Business Day. When a payment is due on a day that is not a Business Day, the payment is due the next Business Day and additional fees or interest, as applicable, shall continue to accrue until paid. All payments to
be made by Borrower hereunder or under any other Loan Document, including payments of principal and interest, and all fees, expenses, indemnities and reimbursements, shall be made without set‑off, recoupment or counterclaim, in lawful money of the
United States and in immediately available funds.
2.5 Secured Promissory Notes. The Term Loans and Revolving Line shall be evidenced by Secured Promissory Notes in the form attached as Exhibit D hereto (each a “Secured Promissory Note”), and shall be repayable as set forth in this Agreement. Borrower irrevocably
authorizes each Lender to make or cause to be made, on or about the Funding Date of any Credit Extension or at the time of receipt of any payment of principal on such Lender’s Secured Promissory Note, an appropriate notation on such Lender’s
Secured Promissory Note Record reflecting the making of such Term Loan, Revolving Advance or (as the case may be) the receipt of such payment. The outstanding amount of each Term Loan and each Revolving Advance set forth on such Lender’s Secured
Promissory Note Record shall be prima facie evidence of the principal amount thereof owing and unpaid to such Lender, but the failure to record, or any error in so recording, any such amount on such Lender’s Secured Promissory Note Record shall not
limit or otherwise affect the obligations of Borrower under any Secured Promissory Note or any other Loan Document to make payments of principal of or interest on any Secured Promissory Note when due. Upon receipt of an affidavit of an officer of
a Lender as to the loss, theft, destruction, or mutilation of its Secured Promissory Note, Borrower shall issue, in lieu thereof, a replacement Secured
Promissory Note in the same principal amount thereof and of like tenor.
2.6 Fees. Borrower shall pay to Collateral Agent:
(a) Final Payment. The Final Payment, when due hereunder, to be shared between the Lenders in accordance with their respective Pro Rata Shares;
(b) Prepayment Fee. The Prepayment Fee, when due hereunder, to be shared between the Lenders in accordance with their respective Pro Rata Shares;
(c) Non-Use Fees. The Non-Use Fees, when due hereunder, to be shared between the Lenders in accordance with their respective Pro Rata Shares;
(d) Annual Revolving Line Monitoring Fee. The Annual Revolving Line Monitoring Fee, when due hereunder, to be shared between the Lenders in accordance with their respective Pro Rata Shares;
(e) Early Termination Fee. The Early Termination Fee, when due hereunder, to be shared between the Lenders in accordance with their respective Pro Rata Shares;
(f) Good Faith Deposit. Borrower has paid to the Lenders a deposit of [***] Dollars ($[***]), which will be applied to Lenders’ Expenses; and
[***]=Certain Confidential Information Omitted
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(g) Lenders’ Expenses. All Lenders’ Expenses (including reasonable attorneys’ fees and expenses for documentation and negotiation of this Agreement) incurred through and after the Effective Date, when due.
2.7 Withholding. Payments received by the Lenders from Borrower hereunder will be made free and clear of and without deduction for any and all present or future taxes, levies, imposts,
duties, deductions, withholdings, assessments, fees or other charges imposed by any Governmental Authority (including any interest, additions to tax or penalties applicable thereto). Specifically, however, if at any time any Governmental
Authority, applicable law, regulation or international agreement requires Borrower to make any withholding or deduction from any such payment or other sum payable hereunder to the Lenders, Borrower hereby covenants and agrees that the amount due
from Borrower with respect to such payment or other sum payable hereunder will be increased to the extent necessary to ensure that, after the making of such required withholding or deduction, each Lender receives a net sum equal to the sum which it
would have received had no withholding or deduction been required and Borrower shall pay the full amount withheld or deducted to the relevant Governmental Authority. Borrower will, upon request, furnish the Lenders with proof reasonably
satisfactory to the Lenders indicating that Borrower has made such withholding payment; provided, however, that Borrower need not make any withholding payment if the amount or validity of such withholding payment is contested in good faith by
appropriate and timely proceedings and as to which payment in full is bonded or reserved against by Borrower. The agreements and obligations of Borrower contained in this Section 2.7 shall survive the termination of this Agreement.
3. CONDITIONS OF LOANS
3.1 Conditions Precedent to Initial Credit Extension. Each Lender’s obligation to make the initial Credit Extension is subject to the condition precedent that Collateral Agent and each
Lender shall consent to or shall have received, in form and substance satisfactory to Collateral Agent and each Lender, such documents, and completion of such other matters, as Collateral Agent and each Lender may reasonably deem necessary or
appropriate, including, without limitation:
(a) original Loan Documents, each duly executed by
Borrower and each Subsidiary, as applicable;
(b) duly executed original Control Agreements with
respect to any Collateral Accounts maintained by Borrower or any of its Subsidiaries;
(c) duly executed original Secured Promissory Notes in
favor of each Lender according to its Term Loan Commitment Percentage and Revolving Line Commitment Percentage;
(d) the Operating Documents and good standing
certificates of Borrower and its Subsidiaries certified by the Secretary of State (or equivalent agency) of Borrower’s and such Subsidiaries’ jurisdiction of organization or formation and each jurisdiction in which Borrower and each Subsidiary is
qualified to conduct business, each as of a date no earlier than thirty (30) days prior to the Effective Date;
(e) a completed Perfection Certificate for Borrower and
each of its Subsidiaries;
(f) the Annual Projections, for the current calendar
year;
(g) duly executed original officer’s certificate for
Borrower and each Subsidiary that is a party to the Loan Documents, in a form acceptable to Collateral Agent and the Lenders;
(h) certified copies, dated as of date no earlier than
thirty (30) days prior to the Effective Date, of financing statement searches, as Collateral Agent shall request, accompanied by written evidence (including any UCC termination statements) that the Liens indicated in any such financing statements
either constitute Permitted Liens or have been or, in connection with the initial Credit Extension, will be terminated or released;
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(i) a landlord’s consent executed in favor of Collateral
Agent in respect of all of Borrower’s and each Subsidiaries’ leased locations;
(j) a duly executed legal opinion of counsel to Borrower
dated as of the Effective Date;
(k) evidence satisfactory to Collateral Agent and the
Lenders that the insurance policies required by Section 6.5 hereof are in full force and effect, together with appropriate evidence showing loss payable and/or additional insured clauses or endorsements in favor of Collateral Agent, for the ratable
benefit of the Lenders;
(l) a copy of any applicable Registration Rights
Agreement or Investors’ Rights Agreement and any amendments thereto;
(m) a payoff letter from Collateral Agent and the Lenders
in respect of the Existing Indebtedness;
(n) evidence that (i) the Liens securing the Existing
Indebtedness will be terminated and (ii) the documents and/or filings evidencing the perfection of such Liens, including without limitation any financing statements and/or control agreements, have or will, concurrently with the initial Credit
Extension, be terminated; and
(o) payment of the fees and Lenders’ Expenses then due as
specified in Section 2.6 hereof.
3.2 Conditions Precedent to all Credit Extensions. The obligation of each Lender to make each Credit Extension, including the initial Credit Extension, is subject to the following conditions
precedent:
(a) receipt by (i) the Lenders of an executed
Disbursement Letter in the form of Exhibit B‑1 attached hereto; and (ii) SVB of an executed Loan Payment/Advance Request Form in the form of Exhibit B‑2 attached hereto;
(b) the representations and warranties in Section 5
hereof shall be true, accurate and complete in all material respects on the date of the Disbursement Letter (and the Loan Payment/Advance Request Form and any Transaction Report) and on the Funding Date of each Credit Extension; provided, however,
that 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 provided, further that those representations and warranties expressly
referring to a specific date shall be true, accurate and complete in all material respects as of such date, and no Event of Default shall have occurred and be continuing or result from the Credit Extension. Each Credit Extension is Borrower’s
representation and warranty on that date that the representations and warranties in Section 5 hereof are true, accurate and complete in all material respects; provided, however, that 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 provided, further that those representations and warranties expressly referring to a specific date shall be true, accurate and complete in
all material respects as of such date;
(c) in such Lender’s sole discretion, there has not been
any Material Adverse Change or any material adverse deviation by Borrower from the Annual Projections of Borrower presented to and accepted by Collateral Agent and each Lender;
(d) after giving effect to such Credit Extension, the
total outstanding Revolving Advances does not exceed the Availability Amount;
(e) with respect to the initial Revolving Advance, (i)
the completion of the Initial Audit with results satisfactory to the Lenders in their sole and absolute discretion and (ii) an executed Transaction Report;
(f) to the extent not delivered at the Effective Date,
duly executed original Secured Promissory Notes and Warrants, in number, form and content acceptable to each Lender, and in favor of each Lender according to its Term Loan Commitment Percentage or Revolving Line Commitment Percentage, as
applicable, with respect to each Credit Extension made by such Lender after the Effective Date; and
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(g) payment of the fees and Lenders’ Expenses then due as
specified in Section 2.6 hereof.
3.3 Covenant to Deliver. Borrower agrees to deliver to Collateral Agent and the Lenders each item required to be delivered to Collateral Agent under this Agreement as a condition precedent
to any Credit Extension. Borrower expressly agrees that a Credit Extension made prior to the receipt by Collateral Agent or any Lender of any such item shall not constitute a waiver by Collateral Agent or any Lender of Borrower’s obligation to
deliver such item, and any such Credit Extension in the absence of a required item shall be made in each Lender’s sole discretion.
3.4 Procedures for Borrowing.
(a) Term Loans. Subject to the prior satisfaction of all other applicable conditions to the making of a Term Loan set forth in this Agreement, to obtain a Term Loan, Borrower shall notify the Lenders (which notice shall be
irrevocable) by electronic mail, facsimile, or telephone by 12:00 noon Eastern time five (5) Business Days prior to the date the Term Loan is to be made. Together with any such electronic, facsimile or telephonic notification, Borrower shall
deliver to the Lenders by electronic mail or facsimile a completed Disbursement Letter (and the Loan Payment/Advance Request Form, with respect to SVB) executed by a Responsible Officer or his or her designee. The Lenders may rely on any telephone
notice given by a person whom a Lender reasonably believes is a Responsible Officer or designee. On the Funding Date, each Lender shall credit and/or transfer (as applicable) to the Designated Deposit Account, an amount equal to its Term Loan
Commitment.
(b) Revolving Advances. Subject to the prior satisfaction of all other applicable conditions to the making of a Revolving Advance set forth in this Agreement, to obtain a Revolving Advance, Borrower shall notify the Lenders
(which notice shall be irrevocable) by electronic mail, facsimile, or telephone by 12:00 noon Eastern time three (3) Business Days prior to the Funding Date of the Revolving Advance. Together with any such electronic, facsimile or telephonic
notification, Borrower shall deliver to the Lenders by electronic mail or facsimile a completed Borrowing Base Certificate and Transaction Report (provided that a Borrowing Base Certificate and Transaction Report shall not be required if a
Borrowing Base Certificate and Transaction Report were delivered during the most recently ended month), together with any schedules related thereto, and a completed Loan Payment/Advance Request executed by a Responsible Officer or his or her
designee. The Lenders may rely on any telephone notice given by a person whom a Lender reasonably believes is a Responsible Officer or his or her designee. Bank, on behalf of Collateral Agent and Lenders, shall credit Revolving Advances to the
Designated Deposit Account and such Revolving Advances shall be deemed to be Revolving Advances by each of the Lenders in the amount of their respective Revolving Line Commitment Percentages. Bank, Collateral Agent and the Lenders shall make
reasonable efforts to make Revolving Advances on the Funding Date requested by Borrower. The Lenders shall reimburse Bank for Revolving Advances made by Bank. (The Lenders, Collateral Agent and Bank, as among themselves, agree that unless Lenders
have already funded their respective Revolving Line Commitment Percentages of a Revolving Advance, Bank shall provide the Lenders with a participation settlement report by 12:00 noon Eastern time on the second Business Day of each week following
the week in which a Revolving Advance has been funded by Bank and that such reimbursement shall occur by the third Business Day of such week; the Borrower is not a party to or a beneficiary of this sentence and it may be amended without Borrower’s
consent.) Bank, on behalf of the Collateral Agent and the Lenders, may make Revolving Advances under this Agreement based on instructions from a Responsible Officer or his or her designee or without instructions if the Revolving Advances are
necessary to meet Obligations which have become due.
4. CREATION OF SECURITY INTEREST
4.1 Grant of Security Interest. Borrower hereby grants Collateral Agent, for the ratable benefit of the Lenders, to secure the payment and performance in full of all of the Obligations, a
continuing security interest in, and pledges to Collateral Agent, for the ratable benefit of the Lenders, the Collateral, wherever located, whether now owned or hereafter acquired or arising, and all proceeds and products thereof. Borrower
represents, warrants, and covenants that the security interest granted herein is and shall at all times continue to be a first priority perfected security interest in the Collateral, subject only to Permitted Liens that are permitted by the terms
of this Agreement to have priority to Collateral Agent’s Lien. If Borrower shall acquire a commercial tort claim (as defined in the Code), Borrower, shall promptly notify Collateral Agent in a writing signed by Borrower, as the case may be, of the
general details thereof (and further details as may be required by Collateral Agent) and grant to Collateral Agent, for the ratable benefit of the Lenders, in such writing a security interest therein and in the proceeds thereof, all upon the terms
of this Agreement, with such writing to be in form and substance reasonably satisfactory to Collateral Agent.
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Borrower acknowledges that it previously has entered, and/or may in the future enter, into Bank Services Agreements with Bank.
Regardless of the terms of any Bank Services Agreement, Borrower agrees that any amounts Borrower owes Bank thereunder shall be deemed to be Obligations hereunder and that it is the intent of Borrower and Bank to have all such Obligations secured
by the first priority perfected security interest in the Collateral granted herein (subject only to Permitted Liens that may have superior priority to Bank’s Lien in this Agreement).
If this Agreement is terminated, Collateral Agent’s Lien in the Collateral shall continue until the Obligations (other than inchoate
indemnity obligations) are repaid in full in cash. Upon payment in full in cash of the Obligations (other than inchoate indemnity obligations) and at such time as the Lenders’ obligation to make Credit Extensions has terminated, Collateral Agent
shall, at the sole cost and expense of Borrower, release its Liens in the Collateral and all rights therein shall revert to Borrower. In the event (x) all Obligations (other than inchoate indemnity obligations), except for Bank Services, are
satisfied in full, and (y) this Agreement is terminated, Bank shall terminate the security interest granted herein upon Borrower providing cash collateral acceptable to Bank in its good faith business judgment for Bank Services, if any. In the
event such Bank Services consist of outstanding Letters of Credit, Borrower shall provide to Bank cash collateral in an amount equal to (x) if such Letters of Credit are denominated in Dollars, then [***] percent ([***]%); and (y) if such Letters
of Credit are denominated in a Foreign Currency, then [***] percent ([***]%), of the Dollar Equivalent of the face amount of all such Letters of Credit plus all interest, fees, and costs due or to become due in connection therewith (as estimated by
Bank in its good faith business judgment), to secure all of the Obligations relating to such Letters of Credit.
4.2 Authorization to File Financing Statements. Borrower hereby authorizes Collateral Agent to file financing statements or take any other action required to perfect Collateral Agent’s
security interests in the Collateral, without notice to Borrower, with all appropriate jurisdictions to perfect or protect Collateral Agent’s interest or rights under the Loan Documents, including a notice that any disposition of the Collateral,
except to the extent permitted by the terms of this Agreement, by Borrower, or any other Person, shall be deemed to violate the rights of Collateral Agent under the Code.
5. REPRESENTATIONS AND WARRANTIES
Borrower represents and warrants to Collateral Agent and the Lenders as follows:
5.1 Due Organization, Authorization: Power and Authority. Borrower and each of its Subsidiaries is duly existing and in good standing as a Registered Organization in its jurisdictions of
organization or formation and Borrower and each of its Subsidiaries is qualified and licensed to do business and is in good standing in any jurisdiction in which the conduct of its businesses or its ownership of property requires that it be
qualified except where the failure to do so could not reasonably be expected to have a Material Adverse Change. In connection with this Agreement, Borrower and each of its Subsidiaries has delivered to Collateral Agent a completed perfection
certificate signed by an officer of Borrower or such Subsidiary (each a “Perfection Certificate” and collectively, the “Perfection Certificates”). Borrower represents and warrants that (a) Borrower and each of its Subsidiaries’ exact legal name is that which is indicated on its respective Perfection
Certificate and on the signature page of each Loan Document to which it is a party; (b) Borrower and each of its Subsidiaries is an organization of the type and is organized in the jurisdiction set forth on its respective Perfection Certificate;
(c) each Perfection Certificate accurately sets forth each of Borrower’s and its Subsidiaries’ organizational identification number or accurately states that Borrower or such Subsidiary has none; (d) each Perfection Certificate accurately sets
forth Borrower’s and each of its Subsidiaries’ place of business, or, if more than one, its chief executive office as well as Borrower’s and each of its Subsidiaries’ mailing address (if different than its chief executive office); (e) Borrower and
each of its Subsidiaries (and each of its respective predecessors) have not, in the past five (5) years, changed its jurisdiction of organization, organizational structure or type, or any organizational number assigned by its jurisdiction; and (f)
all other information set forth on the Perfection Certificates pertaining to Borrower and each of its Subsidiaries, is accurate and complete (it being understood and agreed that Borrower and each of its Subsidiaries may from time to time update
certain information in the Perfection Certificates (including the information set forth in clause (d) above) after the Effective Date to the extent permitted by one or more specific provisions in this Agreement); such updated Perfection
Certificates subject to the review and approval of Collateral Agent. If Borrower or any of its Subsidiaries is not now a Registered Organization but later becomes one, Borrower shall notify Collateral Agent of such occurrence and provide
Collateral Agent with such Person’s organizational identification number within five (5) Business Days of receiving such organizational identification number.
[***]=Certain Confidential Information Omitted
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The execution, delivery and performance by Borrower and each of its Subsidiaries of the Loan Documents to which it is a party have been
duly authorized, and do not (i) conflict with any of Borrower’s or such Subsidiaries’ organizational documents, including its respective Operating Documents, (ii) contravene, conflict with, constitute a default under or violate any material
Requirement of Law applicable thereto, (iii) contravene, conflict or violate any applicable order, writ, judgment, injunction, decree, determination or award of any Governmental Authority by which Borrower or such Subsidiary, or any of their
property or assets may be bound or affected, (iv) require any action by, filing, registration, or qualification with, or Governmental Approval from, any Governmental Authority (except such Governmental Approvals which have already been obtained and
are in full force and effect) or are being obtained pursuant to Section 6.1(b), or (v) constitute an event of default under any material agreement by which Borrower or any of such Subsidiaries, or their respective properties, is bound. Neither
Borrower nor any of its Subsidiaries is in default under any agreement to which it is a party or by which it or any of its assets is bound in which such default could reasonably be expected to have a Material Adverse Change.
5.2 Collateral.
(a) Borrower and each its Subsidiaries have good title
to, have rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx under the Loan Documents, free and clear of any and all Liens except Permitted Liens, and neither Borrower nor any of its Subsidiaries
have any Deposit Accounts, Securities Accounts, Commodity Accounts or other investment accounts other than the Collateral Accounts or the other investment accounts, if any, described in the Perfection Certificates delivered to Collateral Agent in
connection herewith with respect of which Borrower or such Subsidiary has given Collateral Agent notice and taken such actions as are necessary to give Collateral Agent a perfected security interest therein. The Accounts are bona fide, existing
obligations of the Account Debtors.
(b) On the Effective Date, and except as disclosed on the
Perfection Certificate (i) the Collateral is not in the possession of any third party bailee (such as a warehouse), and (ii) no such third party bailee possesses components of the Collateral in excess of [***] Dollars ($[***]). None of the
components of the Collateral shall be maintained at locations other than as disclosed in the Perfection Certificates on the Effective Date or as permitted pursuant to Section 6.11.
(c) All Inventory is in all material respects of good and
marketable quality, free from material defects.
(d) Borrower and each of its Subsidiaries is the sole
owner of the Intellectual Property each respectively purports to own, free and clear of all Liens other than Permitted Liens. Except as noted on the Perfection Certificates, neither Borrower nor any of its Subsidiaries is a party to, nor is bound
by, any material license or other material agreement with respect to which Borrower or such Subsidiary is the licensee that (i) prohibits or otherwise restricts Borrower or its Subsidiaries from granting a security interest in Borrower’s or such
Subsidiaries’ interest in such material license or material agreement or any other property, or (ii) for which a default under or termination of could interfere with Collateral Agent’s or any Lender’s right to sell any Collateral. Borrower shall
provide written notice to Collateral Agent and each Lender within ten (10) days of Borrower or any of its Subsidiaries entering into or becoming bound by any license or agreement with respect to which Borrower or any Subsidiary is the licensee
(other than over‑the‑counter software that is commercially available to the public).
5.3 Litigation. Except as disclosed (i) on the Perfection Certificates, or (ii) in accordance with Section 6.9 hereof, there are no actions, suits, investigations, or proceedings pending or,
to the knowledge of the Responsible Officers, threatened in writing by or against Borrower or any of its Subsidiaries involving more than [***] Dollars ($[***]).
5.4 No Material Deterioration in Financial Condition; Financial Statements. All consolidated financial statements for Borrower and its Subsidiaries, delivered to Collateral Agent fairly
present, in conformity with GAAP, in all material respects the consolidated financial condition of Borrower and its Subsidiaries, and the consolidated results of operations of Borrower and its Subsidiaries (except with respect to unaudited financial statements, subject to normal year-end adjustments and for the absence of footnotes). There has not been any material deterioration in the consolidated financial
condition of Borrower and its Subsidiaries since the date of the most recent financial statements submitted to any Lender.
[***]=Certain Confidential Information Omitted
8
5.5 Solvency. Borrower is, and Borrower and each of its Subsidiaries, taken as a whole, are, Solvent.
5.6 Regulatory Compliance. Neither Borrower nor any of its Subsidiaries is an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of
1940, as amended. Neither Borrower nor any of its Subsidiaries is engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Borrower and each of its
Subsidiaries has complied in all material respects with the Federal Fair Labor Standards Act. Neither Borrower nor any of its Subsidiaries is a “holding company” or an “affiliate” of a “holding company” or a “subsidiary company” of a “holding
company” as each term is defined and used in the Public Utility Holding Company Act of 2005. Neither Borrower nor any of its Subsidiaries has violated any laws, ordinances or rules, the violation of which could reasonably be expected to have a
Material Adverse Change. Neither Borrower’s nor any of its Subsidiaries’ properties or assets has been used by Borrower or such Subsidiary or, to Borrower’s knowledge, by previous Persons, in disposing, producing, storing, treating, or
transporting any hazardous substance other than in material compliance with applicable laws. Borrower and each of its Subsidiaries has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all
notices to, all Governmental Authorities that are necessary to continue their respective businesses as currently conducted.
None of Borrower, any of its Subsidiaries, or any of Borrower’s or its Subsidiaries’ Affiliates or any of their respective agents acting
or benefiting in any capacity in connection with the transactions contemplated by this Agreement is (i) in violation of any Anti‑Terrorism Law, (ii) engaging in or conspiring to engage in any transaction that evades or avoids, or has the purpose of
evading or avoiding or attempts to violate, any of the prohibitions set forth in any Anti‑Terrorism Law, or (iii) is a Blocked Person. None of Borrower, any of its Subsidiaries, or to the knowledge of Borrower and any of their Affiliates or
agents, acting or benefiting in any capacity in connection with the transactions contemplated by this Agreement, (x) conducts any business or engages in making or receiving any contribution of funds, goods or services to or for the benefit of any
Blocked Person, or (y) deals in, or otherwise engages in any transaction relating to, any property or interest in property blocked pursuant to Executive Order No. 13224, any similar executive order or other Anti‑Terrorism Law.
5.7 Investments. Neither Borrower nor any of its Subsidiaries owns any stock, shares, partnership interests or other equity securities except for Permitted Investments.
5.8 Tax Returns and Payments; Pension Contributions. Borrower and each of its Subsidiaries has timely
filed, or timely obtained extensions for the filing of, all required tax returns and reports, and Borrower and each of its Subsidiaries, has timely paid all foreign, federal, state, and local taxes, assessments, deposits and contributions owed by
Borrower and such Subsidiaries, in all jurisdictions in which Borrower or any such Subsidiary is subject to taxes, including the United States, unless such taxes are being contested in accordance with the following sentence. Borrower and each of
its Subsidiaries, may defer payment of any contested taxes, provided that Borrower or such Subsidiary, (a) in good faith contests its obligation to pay the taxes by appropriate proceedings promptly and diligently instituted and conducted, (b)
notifies Collateral Agent in writing of the commencement of, and any material development in, the proceedings, and (c) posts bonds or takes any other steps required to prevent the Governmental Authority levying such contested taxes from obtaining a
Lien upon any of the Collateral that is other than a “Permitted Lien.” Neither Borrower nor any of its Subsidiaries is aware of any claims or adjustments
proposed for any of Borrower’s or such Subsidiaries’, prior tax years which could result in (i) additional foreign and/or federal taxes becoming due and payable by Borrower or its Subsidiaries, or (ii) additional state and/or local taxes becoming
due and payable by Borrower or its Subsidiaries in excess of [***] Dollars ($[***]) in the aggregate. Borrower and each of its Subsidiaries have paid all amounts necessary to fund all present pension, profit sharing and deferred compensation plans
in accordance with their terms, and neither Borrower nor any of its Subsidiaries have, withdrawn from participation in, and have not permitted partial or complete termination of, or permitted the occurrence of any other event with respect to, any
such plan which could reasonably be expected to result in any liability of Borrower or its Subsidiaries, including any liability to the Pension Benefit Guaranty Corporation or its successors or any other Governmental Authority.
[***]=Certain Confidential Information Omitted
9
5.9 Use of Proceeds. Borrower shall use the proceeds of the Credit Extensions solely as working capital and to fund its general business requirements in accordance with the provisions of
this Agreement, and not for personal, family, household or agricultural purposes. A portion of the proceeds of the Term Loans shall be used by Borrower to repay the Existing Indebtedness in full on the Effective Date.
5.10 Accounts Receivable.
(a) For each Account with respect to which Revolving
Advances are requested, on the date each Revolving Advance is requested and made, such Account shall be an Eligible Account.
(b) All statements made and all unpaid balances appearing
in all invoices, instruments and other documents evidencing the Eligible Accounts are and shall be true and correct and all such invoices, instruments and other documents, and all of Borrower’s Books are genuine and in all material respects what
they purport to be. Whether or not an Event of Default has occurred and is continuing, Collateral Agent may notify any Account Debtor owing Borrower money of Collateral Agent’s security interest in such funds and verify the amount of such Eligible
Account. All sales and other transactions underlying or giving rise to each Eligible Account shall comply in all material respects with all applicable laws and governmental rules and regulations. Borrower has no knowledge of any actual or
imminent Insolvency Proceeding of any Account Debtor whose accounts are Eligible Accounts in any Borrowing Base Certificate or Transaction Report. To the best of Borrower’s knowledge, all signatures and endorsements on all documents, instruments,
and agreements relating to all Eligible Accounts are genuine, and all such documents, instruments and agreements are legally enforceable in accordance with their terms.
5.11 Full Disclosure. No written representation, warranty or other statement of Borrower or any of its Subsidiaries in any certificate or written statement given to Collateral Agent or any
Lender, as of the date such representation, warranty, or other statement was made, taken together with all such written certificates and written statements given to Collateral Agent or any Lender, contains any untrue statement of a material fact or
omits to state a material fact necessary to make the statements contained in the certificates or statements not misleading (it being recognized that the projections and forecasts provided by Borrower in good faith and based upon reasonable
assumptions are not viewed as facts and that actual results during the period or periods covered by such projections and forecasts may differ from the projected or forecasted results).
5.12 Definition of “Knowledge.” For purposes of the Loan Documents, whenever a representation or
warranty is made to Borrower’s knowledge or awareness, to the “best of” Borrower’s knowledge, or with a similar qualification, knowledge or awareness means the actual knowledge, after reasonable investigation, of the Responsible Officers.
6. AFFIRMATIVE COVENANTS
Borrower shall, and shall cause each of its Subsidiaries to, do all of the following:
6.1 Government
Compliance.
(a) Maintain its and all its Subsidiaries’ legal
existence and good standing in their respective jurisdictions of organization and maintain qualification in each jurisdiction in which the failure to so qualify could reasonably be expected to have a Material Adverse Change. Comply with all laws,
ordinances and regulations to which Borrower or any of its Subsidiaries is subject, the noncompliance with which could reasonably be expected to have a Material Adverse Change.
10
(b) Obtain and keep in full force and effect, all of the
material Governmental Approvals necessary for the performance by Borrower and its Subsidiaries of their respective businesses and obligations under the Loan Documents and the grant of a security interest to Collateral Agent for the ratable benefit
of the Lenders, in all of the Collateral. Borrower shall promptly provide copies to Collateral Agent of any material Governmental Approvals obtained by Borrower or any of its Subsidiaries.
6.2 Financial
Statements, Reports, Certificates.
(a) Deliver to each Lender:
(i) as soon as available, but no later than thirty (30)
days after the last day of each month, a company prepared consolidated and consolidating balance sheet, income statement and cash flow statement covering the consolidated operations of Borrower and its Subsidiaries for such month certified by a
Responsible Officer and in a form reasonably acceptable to Collateral Agent;
(ii) as soon as available, but no later than one hundred
fifty (150) days after the last day of Borrower’s fiscal year or within five (5) days of filing with the SEC, audited consolidated financial statements prepared under GAAP, consistently applied, together with an unqualified opinion on the financial
statements (or qualified only as to going concern typical for venture backed companies similar to Borrower) from an independent certified public accounting firm acceptable to Collateral Agent in its reasonable discretion (Xxxx Xxxxx LLP being
deemed acceptable by Collateral Agent as of the Effective Date);
(iii) as soon as available after approval thereof by
Borrower’s Board of Directors, but no later than thirty (30) days after the last day of each of Borrower’s fiscal years, Borrower’s annual financial projections for the entire current fiscal year as approved by Borrower’s Board of Directors, which
such annual financial projections shall be set forth in a month‑by‑month format (such annual financial projections as originally delivered to Collateral Agent and the Lenders are referred to herein as the “Annual Projections”; provided that, any revisions of the Annual Projections approved by Borrower’s Board of Directors shall be delivered to Collateral Agent and the Lenders no later than seven (7)
days after such approval);
(iv) within five (5) days of delivery, copies of all
statements, reports and notices made available to Borrower’s security holders or holders of Subordinated Debt;
(v) in the event that Borrower becomes subject to the
reporting requirements under the Securities Exchange Act of 1934, as amended, within five (5) days of filing, all reports on Form 10‑K, 10‑Q and 8‑K filed with the Securities and Exchange Commission;
(vi) together with the Compliance Certificate, notice of
any amendments of or other changes to the capitalization table of Borrower and to the Operating Documents of Borrower or any of its Subsidiaries, together with any copies reflecting such amendments or changes with respect thereto; provided that, in
addition to the foregoing, Borrower shall prompt notice of any material amendments of or other material changes to the capitalization table of Borrower and to the Operating Documents of Borrower or any of its Subsidiaries, together with any copies
reflecting such amendments or changes with respect thereto;
(vii) prompt notice of any event that could reasonably
be expected to materially and adversely affect the value of the Intellectual Property;
(viii) as soon as available, but no later than thirty
(30) days after the last day of each month, copies of the month‑end account statements for each Collateral Account maintained by Borrower or its Subsidiaries, which statements may be provided to Collateral Agent and each Lender by Borrower or
directly from the applicable institution(s);
(ix) with each request for a Revolving Advance and
within thirty (30) days after the end of each month during which any Revolving Advances are outstanding, (A) aged listings of accounts receivable and accounts payable (by invoice date), and (B) a duly completed Borrowing Base Certificate signed by
a Responsible Officer;
(x) a Transaction Report (and any schedules related
thereto), (i) with each request for a Revolving Advance, and (ii) if Revolving Advances are outstanding, (a) within thirty (30) days after the end of each month when a Streamline Period is in effect, and (b) on the Friday of each week, when a Streamline Period is not in effect;
11
(xi) prompt written notice of any changes to the
beneficial ownership information set out in items 1 and 2 of Addendum 1 to the Perfection Certificate. Borrower understands and acknowledges that Collateral Agent and each Lender relies on such true, accurate and up-to-date beneficial ownership
information to meet Collateral Agent’s and such Lender’s regulatory obligations to obtain, verify and record information about the beneficial owners of its legal entity customers; and
(xii) other information as reasonably requested by
Collateral Agent or any Lender.
Notwithstanding the foregoing, documents required to be delivered pursuant to the terms hereof (to the extent any such documents are included in materials
otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date on which Borrower posts such documents, or provides a link thereto, on Borrower’s website on the internet at
Borrower’s website address.
(b) Concurrently with the delivery of the financial
statements specified in Section 6.2(a)(i) above but no later than thirty (30) days after the last day of each month, deliver to each Lender, a duly completed Compliance Certificate signed by a Responsible Officer.
(c) Keep proper books of record and account in accordance
with GAAP in all material respects, in which full, true and correct entries shall be made of all dealings and transactions in relation to its business and activities. Borrower shall, and shall cause each of its Subsidiaries to, allow, at the sole
cost of Borrower, Collateral Agent or any Lender, during regular business hours upon reasonable prior notice (provided that no notice shall be required when an Event of Default has occurred and is continuing), to visit and inspect any of its
properties, to examine and make abstracts or copies from any of its books and records, and to conduct a collateral audit and analysis of its operations and the Collateral. Such audits shall be conducted no more often than once every year (or more
frequently as Collateral Agent in its sole discretion determines that conditions warrant) unless (and more frequently if) an Event of Default has occurred and is continuing. The foregoing inspections and audits shall be at Borrower’s expense, and
the charge therefor shall be One Thousand Dollars ($1,000.00) per day (or such higher amount as shall represent Lenders’ then-current standard charge for the same), plus reasonable out-of-pocket expenses. In the event Borrower and Collateral Agent
or any Lender schedule an audit more than ten (10) days in advance, and Borrower cancels or seeks to reschedule the audit with less than ten (10) days written notice to Collateral Agent or any such Lender, then (without limiting any of Collateral
Agent’s rights or remedies) Borrower shall pay Collateral Agent or such Lender a fee of One Thousand Dollars ($1,000.00) plus any out-of-pocket expenses incurred by Collateral Agent or such Lender to compensate Collateral Agent or such Lender for
the anticipated costs and expenses of the cancellation or rescheduling.
6.3 Inventory; Returns. Keep all Inventory in good and marketable condition, free from material defects. Returns and allowances between Borrower, or any of its Subsidiaries, and their
respective Account Debtors shall follow Borrower’s, or such Subsidiary’s, customary practices as they exist at the Effective Date. Borrower must promptly notify Collateral Agent and the Lenders of all returns, recoveries, disputes and claims that
involve more than [***] Dollars ($[***]) individually or in the aggregate in any calendar year.
6.4 Taxes; Pensions. Timely file and require each of its Subsidiaries to timely file, all required tax returns and reports (or obtain extensions thereof) and timely pay, and require each of
its Subsidiaries to timely file, all foreign, federal, state, and local taxes, assessments, deposits and contributions owed by Borrower or its Subsidiaries, except for deferred payment of any taxes contested pursuant to the terms of Section 5.8
hereof, and shall deliver to Lenders, on demand, appropriate certificates attesting to such payments, and pay all amounts necessary to fund all present pension, profit sharing and deferred compensation plans in accordance with the terms of such
plans.
6.5 Insurance. Keep Borrower’s and its Subsidiaries’ business and the Collateral insured for risks and in amounts standard for companies in Borrower’s and its Subsidiaries’ industry and
location and as Collateral Agent may reasonably request. Insurance policies shall be in a form, with companies, and in amounts that are reasonably satisfactory to Collateral Agent and Lenders. All property policies shall have a lender’s loss
payable endorsement showing Collateral Agent as lender loss payee and waive subrogation against Collateral Agent, and all liability policies shall show, or have endorsements showing, Collateral Agent, as additional insured. The Collateral Agent
shall be named as lender loss payee and/or additional insured with respect to any such insurance providing coverage in respect of any Collateral, and each provider of any such insurance shall agree, by endorsement upon the policy or policies issued
by it or by independent instruments furnished to the Collateral Agent, that it will give the Collateral Agent thirty (30) days prior written notice before any such policy or policies shall be materially altered or canceled. At Collateral Agent’s
request, Borrower shall deliver certified copies of policies and evidence of all premium payments. Proceeds payable under any policy shall, at Collateral Agent’s option, be payable to Collateral Agent, for the ratable benefit of the Lenders, on
account of the Obligations. Notwithstanding the foregoing, (a) so long as no Event of Default has occurred and is continuing, Borrower shall have the option of applying the proceeds of any casualty policy up to [***] Dollars ($[***]) with respect
to any loss, but not exceeding [***] Dollars ($[***]), in the aggregate for all losses under all casualty policies in any one year, toward the replacement or repair of destroyed or damaged property; provided that any such replaced or repaired
property (i) shall be of equal or like value as the replaced or repaired Collateral and (ii) shall be deemed Collateral in which Collateral Agent has been granted a first priority security interest, and (b) after the occurrence and during the
continuance of an Event of Default, all proceeds payable under such casualty policy shall, at the option of Collateral Agent, be payable to Collateral Agent, for the ratable benefit of the Lenders, on account of the Obligations. If Borrower or any
of its Subsidiaries fails to obtain insurance as required under this Section 6.5 or to pay any amount or furnish any required proof of payment to third persons, Collateral Agent and/or any Lender may make, at Borrower’s expense, all or part of such
payment or obtain such insurance policies required in this Section 6.5, and take any action under the policies Collateral Agent or such Lender deems prudent.
[***]=Certain Confidential Information Omitted
12
6.6 Operating
Accounts and Bank Services.
(a) Maintain all of Borrower’s and its Subsidiaries’
Collateral Accounts, cash and Cash Equivalents with Bank, or its Affiliates, and [***], in accounts which are subject to a Control Agreement in favor of Collateral Agent, and primary Bank Services with Bank and Bank’s Affiliates.
(b) Borrower shall provide Collateral Agent five (5)
days’ prior written notice before Borrower or any of its Subsidiaries establishes any Collateral Account at or with any Person other than Bank, or its Affiliates. In addition, for each Collateral Account that Borrower or any of its Subsidiaries,
at any time maintains, Borrower or such Subsidiary shall cause the applicable bank or financial institution at or with which such Collateral Account is maintained to execute and deliver a Control Agreement or other appropriate instrument with
respect to such Collateral Account to perfect Collateral Agent’s Lien in such Collateral Account in accordance with the terms hereunder prior to the establishment of such Collateral Account, which Control Agreement may not be terminated without
prior written consent of Collateral Agent. The provisions of the previous sentence shall not apply to (i) deposit accounts exclusively used for payroll, payroll taxes and other employee wage and benefit payments to or for the benefit of
Borrower’s, or any of its Subsidiaries’, employees and identified to Collateral Agent by Borrower as such in the Perfection Certificates, (ii) the Medicare/Medicaid Receivables Account (defined below), and (iii) the [***] account so long as the
aggregate balance in such accounts at no time exceeds [***] Dollars ($[***]).
(c) Borrower shall cause all Medicare and Medicaid
payments, and only such payments, owing to Borrower to be wire transferred or sent via ACH directly to Borrower’s operating account held at Bank (the “Medicare/Medicaid
Receivables Account”) to which such payments will be directed and/or remitted pursuant to the terms of this Section 6.6(c). Collateral Agent and Bank hereby disclaims any right or interest (including any security interest or right of off
set (or set-off)) in or to such Medicare/Medicaid Receivables Account).
(d) Neither Borrower nor any of its Subsidiaries shall
maintain any Collateral Accounts except Collateral Accounts maintained in accordance with Sections 6.6(a), (b), and (c).
6.7 Protection of Intellectual Property Rights. Borrower and each of its Subsidiaries shall: (a) use commercially reasonable efforts to protect, defend and maintain the validity and
enforceability of its Intellectual Property that is material to Borrower’s business; (b) promptly advise Collateral Agent in writing of material infringement by a third party of its Intellectual Property; and (c) not allow any Intellectual Property
material to Borrower’s business to be abandoned, forfeited or dedicated to the public without Collateral Agent’s prior written consent.
[***]=Certain Confidential Information Omitted
13
6.8 Litigation Cooperation. Commencing on the Effective Date and continuing through the termination of this Agreement, make available to Collateral Agent and the Lenders, without expense to
Collateral Agent or the Lenders, Borrower and each of Borrower’s officers, employees and agents and Borrower’s Books, to the extent that Collateral Agent or any Lender may reasonably deem them necessary to prosecute or defend any third‑party suit
or proceeding instituted by or against Collateral Agent or any Lender with respect to any Collateral or relating to Borrower.
6.9 Notices of Litigation and Default. Borrower will give prompt written notice to Collateral Agent and the Lenders of any litigation or governmental proceedings pending or threatened (in
writing) against Borrower or any of its Subsidiaries, which could reasonably be expected to result in damages or costs to Borrower or any of its Subsidiaries of [***] Dollars ($[***]) or more or which could reasonably be expected to have a Material
Adverse Change. Without limiting or contradicting any other more specific provision of this Agreement, promptly (and in any event within three (3) Business Days) upon Borrower becoming aware of the existence of any Event of Default or event which,
with the giving of notice or passage of time, or both, would constitute an Event of Default, Borrower shall give written notice to Collateral Agent and the Lenders of such occurrence, which such notice shall include a reasonably detailed
description of such Event of Default or event which, with the giving of notice or passage of time, or both, would constitute an Event of Default.
6.10 Financial Covenant. Borrower shall achieve the following, to be tested as of the last day of the applicable month, on a consolidated basis with respect to Borrower and its Subsidiaries:
(i) Revenues for the six months ended at the end of the
applicable month set forth below of at least:
|
Trailing 6-Month Period Ending
|
Minimum Trailing 6 Months Revenue ([***]% of Plan)
|
|
12/31/2018
|
$13,938,563.10
|
|
1/31/2019
|
$14,553,346.90
|
|
2/28/2019
|
$14,446,625.21
|
|
3/31/2019
|
$14,970,862.04
|
|
4/30/2019
|
$15,093,974.83
|
|
5/31/2019
|
$15,791,770.14
|
|
6/30/2019
|
$16,142,232.39
|
|
7/31/2019
|
$16,376,827.71
|
|
8/31/2019
|
$17,513,680.77
|
|
9/30/2019
|
$18,266,960.91
|
|
10/31/2019
|
$19,239,441.41
|
|
11/30/2019
|
$19,361,687.32
|
|
12/31/2019
|
$20,187,492.50
|
, and thereafter, the required revenues of Borrower shall be determined by Collateral Agent
and the Lenders upon receipt and review by Collateral Agent and the Lenders of Borrower’s Annual Projections delivered in accordance with Section 6.2(a)(iii); provided that such required revenues shall be (i) based on a minimum requirement of at
least [***] percent ([***]%) of Borrower’s board of directors-approved revenue plan (provided that such plan is acceptable to Collateral Agent and the Lenders), (ii) in no
event less than the amounts required hereunder with respect to [***], and (iii) at such levels that [***].
Collateral Agent, Borrower and the Lenders shall execute and deliver to each other an amendment to this Agreement which provides the terms of such Future Minimum Revenue Covenants no later than the earlier of (i) ten (10) days after Borrower’s
receives such amendment from Bank, and (ii) February 28th of each year. It shall be an immediate Event of Default if Borrower, Collateral Agent and the Lenders (in each case acting reasonably) fail to enter into the aforementioned amendment on or
prior to February 28th of each year.
6.11 Landlord Waivers; Bailee Waivers. In the event that Borrower or any of its Subsidiaries, after the Effective Date, intends to add any new offices or business locations, including
warehouses, or otherwise store any portion of the Collateral with, or deliver any portion of the Collateral to, a bailee, in each case pursuant to Section 7.2, then Borrower or such Subsidiary will first receive the written consent of Collateral
Agent and, in the event that the new location is the chief executive office of the Borrower or such Subsidiary or the Collateral at any such new location is valued in excess of [***] ($[***]) in the aggregate, such bailee or landlord, as
applicable, must execute and deliver a bailee waiver or landlord waiver, as applicable, in form and substance reasonably satisfactory to Collateral Agent prior to the addition of any new offices or business locations, or any such storage with or
delivery to any such bailee, as the case may be.
[***]=Certain Confidential Information Omitted
14
6.12 Creation/Acquisition of Subsidiaries. In the event Borrower, or any of its Subsidiaries creates or acquires any Subsidiary, Borrower shall provide prior written notice to Collateral
Agent and each Lender of the creation or acquisition of such new Subsidiary and take all such action as may be reasonably required by Collateral Agent or any Lender to cause each such Subsidiary to become a co‑Borrower hereunder or to guarantee the
Obligations of Borrower under the Loan Documents and, in each case, grant a continuing pledge and security interest in and to the assets of such Subsidiary (substantially as described on Exhibit A hereto); and Borrower (or its Subsidiary, as applicable) shall grant and pledge to Collateral Agent, for the ratable benefit of the Lenders, a perfected security interest in the stock, units or other evidence of
ownership of each such newly created Subsidiary; provided, however, that solely in the circumstance in which Borrower or any Subsidiary creates or acquires a Foreign Subsidiary in an acquisition permitted by Section 7.7 hereof or otherwise approved
by the Required Lenders, (i) such Foreign Subsidiary shall not be required to guarantee the Obligations of Borrower under the Loan Documents and grant a continuing pledge and security interest in and to the assets of such Foreign Subsidiary, and
(ii) Borrower shall not be required to grant and pledge to Collateral Agent, for the ratable benefit of Lenders, a perfected security interest in more than [***] percent ([***]%) of the stock, units or other evidence of ownership of such Foreign
Subsidiary, if Borrower demonstrates to the reasonable satisfaction of Collateral Agent that such Foreign Subsidiary providing such guarantee or pledge and security interest or Borrower providing a perfected security interest in more than [***]
percent ([***]%) of the stock, units or other evidence of ownership would create a present and existing adverse tax consequence to Borrower under the U.S. Internal Revenue Code.
6.13 Further
Assurances.
(a) Execute any further instruments and take further
action as Collateral Agent or any Lender reasonably requests to perfect or continue Collateral Agent’s Lien in the Collateral or to effect the purposes of this Agreement.
(b) Deliver to Collateral Agent and Lenders, within five
(5) days after the same are sent or received, copies of all material correspondence, reports, documents and other filings with any Governmental Authority that could reasonably be expected to have a material adverse effect on any of the Governmental
Approvals material to Borrower’s business or otherwise could reasonably be expected to have a Material Adverse Change.
6.14 Accounts Receivable.
(a) Schedules and Documents Relating to Accounts. Borrower shall deliver to Collateral Agent, with a copy to Lenders, transaction reports and schedules of collections, as provided in Section 6.2, on Collateral Agent’s standard
forms; provided, however, that Borrower’s failure to execute and deliver the same shall not affect or limit Collateral Agent’s Lien and other rights in all of Borrower’s Accounts, nor shall Collateral Agent’s failure to advance or lend against a
specific Account affect or limit Collateral Agent’s Lien and other rights therein. If reasonably requested by Collateral Agent or any Lender, Borrower shall furnish Collateral Agent, with a copy to Lenders, with copies (or, at Collateral Agent’s
request, originals) of all contracts, orders, invoices, and other similar documents, and all shipping instructions, delivery receipts, bills of lading, and other evidence of delivery, for any goods the sale or disposition of which gave rise to such
Accounts. In addition, Borrower shall deliver to Collateral Agent, with a copy to Lenders, on any reasonable request, the originals of all instruments, chattel paper, security agreements, guarantees and other documents and property evidencing or
securing any Accounts, in the same form as received, with all necessary indorsements, and copies of all credit memos.
(b) Disputes. Borrower shall promptly notify Collateral Agent and each Lender of all disputes or claims relating to Accounts in excess of [***] Dollars ($[***]). Borrower may forgive (completely or partially), compromise, or
settle any Account for less than payment in full, or agree to do any of the foregoing so long as (i) Borrower does so in good faith, in a commercially reasonable manner, in the ordinary course of business, in arm’s-length transactions, and reports
the same to Collateral Agent, with a copy to Lenders, in the Compliance Certificate; (ii) no Event of Default has occurred and is continuing; and (iii) after taking into account all such discounts, settlements and forgiveness, the total outstanding
Revolving Advances will not exceed the lesser of the Revolving Line or the Availability Amount.
[***]=Certain Confidential Information Omitted
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(c) Collection of Accounts. Borrower shall have the right to collect all Accounts, unless and until an Event of Default has occurred and is continuing. Borrower shall direct all Account Debtors to deliver or transmit all
proceeds of Accounts into a Collateral Account that is a lockbox account, or via wire transfer, ACH or electronic deposit capture into a Collateral Account that is a “blocked account” as specified by Collateral Agent (either such account, the “Cash Collateral Account”). Whether or not an Event of Default has occurred and is continuing, Borrower shall immediately deliver all payments on and proceeds of
Accounts to the Cash Collateral Account. So long as no Event of Default shall have occurred and be continuing and (i) a Streamline Period is in effect, the balance of such Cash Collateral Account will be transferred on a daily basis to Borrower’s
operating account with Bank, and (ii) a Streamline Period is not in effect, all payments on and proceeds of Accounts shall be applied to immediately reduce the Obligations with respect to the Revolving Line and the balance of such Cash Collateral
Account will be transferred to Borrower’s operating account with Bank; provided, however, upon the occurrence and during the continuation of Event of Default, such payments shall be applied towards the Obligations as set forth in Section 9.4. It
will be considered an immediate Event of Default if the Cash Collateral Account is not established and operational prior to the earlier of (i) the initial Revolving Advance and (ii) within ninety (90) days of the Effective Date, and in either case,
at all times thereafter.
(d) Returns. Provided no Event of Default has occurred and is continuing, if any Account Debtor returns any Inventory to Borrower, Borrower shall promptly (i) (A) determine the reason for such return and issue a credit
memorandum to the Account Debtor in the appropriate amount or (B) handle such return in a customary and commercially reasonable manner consistent with past practices, and (ii) with respect to any such returns involving more than [***] Dollars
($[***]) individually or in the aggregate, provide a copy of such credit memorandum or other applicable documentation to Collateral Agent, with a copy to Lenders. In the event any attempted return occurs after the occurrence and during the
continuance of any Event of Default, Borrower shall hold the returned Inventory in trust for Collateral Agent, and immediately notify Collateral Agent and Lenders of the return of the Inventory.
(e) Verification. Collateral Agent and Lenders may, from time to time, verify directly with the respective Account Debtors the validity, amount and other matters relating to the Accounts, either in the name of Borrower,
Collateral Agent or such Lender or such other name as Collateral Agent or such Lender may choose, and notify any Account Debtor of Collateral Agent’s security interest in such Account; provided, however, that so long as no Event of Default has
occurred and is continuing, Collateral Agent will endeavor in good faith to notify Borrower in advance of such verification, provided that the failure to do so shall not be a breach of this Agreement or give rise to any liability to Collateral
Agent or any Lender.
(f) No Liability. Neither Collateral Agent nor any Lender shall be responsible or liable for any shortage or discrepancy in, damage to, or loss or destruction of, any goods, the sale or other disposition of which gives rise to
an Account, or for any error, act, omission, or delay of any kind occurring in the settlement, failure to settle, collection or failure to collect any Account, or for settling any Account in good faith for less than the full amount thereof, nor
shall Collateral Agent or any Lender be deemed to be responsible for any of Borrower’s obligations under any contract or agreement giving rise to an Account. Nothing herein shall, however, relieve Collateral Agent or any Lender from liability for
its own gross negligence or willful misconduct.
6.15 Remittance of Proceeds. Except as otherwise provided in Section 6.14(c), deliver, in kind, all proceeds arising from the disposition of any (i) Revolving Line Priority Collateral to
Collateral Agent, for the ratable benefit of the Lenders with respect to the Revolving Line, in the original form in which received by Borrower not later than [***] ([***]) Business Days after receipt by Borrower, to be applied to the Revolving
Line Obligations, and (ii) Term Loan Priority Collateral to Collateral Agent, for the ratable benefit of the Lenders with respect to the Term Loan, in the original form in which received by Borrower not later than [***] ([***]) Business Days after
receipt by Borrower, to be applied to the Term Loan Obligations, (a) prior to an Event of Default, pursuant to the terms of Section 2.4(e) hereof, and (b) after the occurrence and during the continuance of an Event of Default, pursuant to the terms
of Section 9.4 hereof; provided that, if no Event of Default has occurred and is continuing, and other than pursuant to any transaction permitted under Section 7.1, Borrower shall not be obligated to remit to Collateral Agent the proceeds of the
sale of worn out or obsolete Equipment disposed of by Borrower in good faith in an arm’s length transaction for an aggregate purchase price of [***] Dollars ($[***]) or less (for all such transactions in any fiscal year). Borrower agrees that it
will not commingle proceeds of the dispositions of the Revolving Line Priority Collateral or Term Loan Priority Collateral with any of Borrower’s other funds or property, but will hold such proceeds separate and apart from such other funds and
property and in an express trust for Collateral Agent. Nothing in this Section limits the restrictions on disposition of Collateral set forth elsewhere in this Agreement.
[***]=Certain Confidential Information Omitted
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7. NEGATIVE COVENANTS
Borrower shall not, and shall not permit any of its Subsidiaries to, do any of the following without the prior written consent of the
Required Lenders:
7.1 Dispositions. Convey, sell, lease, transfer, assign, or otherwise dispose of (collectively, “Transfer”),
or permit any of its Subsidiaries to Transfer, all or any part of its business or property, except for Transfers (a) of Inventory in the ordinary course of business; (b) of worn out or obsolete Equipment; (c) in connection with Permitted Liens,
Permitted Investments and Permitted Licenses; (e) consisting of cash payments to trade creditors in the ordinary course of business provided that such payments are (i) reflected in the Annual Projections and (ii) not otherwise prohibited by this
Agreement; and (f) not described in the foregoing clauses (a) through (e) not to exceed [***] Dollars ($[***]) in the aggregate in any fiscal year provided that such Transfers are not otherwise prohibited by this Agreement.
7.2 Changes in Business, Management, Ownership, or Business Locations. (a) Engage in or permit any of its Subsidiaries to engage in any business other than the businesses engaged in by
Borrower as of the Effective Date or reasonably related thereto; (b) liquidate or dissolve; or (c) (i) any Key Person shall cease to be actively engaged in the management of Borrower unless written notice thereof is provided to Collateral Agent
within five (5) Business Days of such change, or (ii) enter into any transaction or series of related transactions in which the stockholders of Borrower who were not stockholders immediately prior to the first such transaction own more than forty
nine percent (49%) of the voting stock of Borrower immediately after giving effect to such transaction or related series of such transactions (other than by the sale of Borrower’s equity securities in a public offering, a private placement of
public equity or to venture capital investors so long as Borrower identifies to Collateral Agent the venture capital investors prior to the closing of the transaction). Borrower shall not, without at least fifteen (15) days’ prior written notice
to Collateral Agent: (A) add any new offices or business locations, including warehouses (unless such new offices or business locations (ii) contain less than [***] Dollars ($[***]) in assets or property of Borrower or any of its Subsidiaries and
(ii) are not Borrower’s or its Subsidiaries’ chief executive office); (B) change its jurisdiction of organization, (C) change its organizational structure or type, (D) change its legal name, or (E) change any organizational number (if any) assigned
by its jurisdiction of organization.
7.3 Mergers or Acquisitions. Merge or consolidate, or permit any of its Subsidiaries to merge or consolidate, with any other Person, or acquire, or permit any of its Subsidiaries to acquire,
all or substantially all of the capital stock, shares or property of another Person. A Subsidiary may merge or consolidate into another Subsidiary (provided such surviving Subsidiary is a “co‑Borrower” hereunder or has provided a secured Guaranty
of Borrower’s Obligations hereunder) or with (or into) Borrower provided Borrower is the surviving legal entity, and as long as no Event of Default is occurring prior thereto or arises as a result therefrom. Without limiting the foregoing,
Borrower shall not, without Collateral Agent’s prior written consent, enter into any binding contractual arrangement with any Person to attempt to facilitate a merger or acquisition of Borrower, unless (i) no Event of Default exists when such
agreement is entered into by Borrower, (ii) such agreement does not give such Person the right to claim any break-up or similar fees, payments or damages from Borrower in excess of [***] Dollars ($[***]) as a result of any failure to proceed with
or close such merger or acquisition, except to the extent any such break-up or similar fees, payments or damages are to be funded solely from cash proceeds received by Borrower from a third party, and (iii) Borrower notifies Collateral Agent in
advance of entering into such an agreement.
7.4 Indebtedness. Create, incur, assume, or be liable for any Indebtedness, or permit any Subsidiary to do so, other than Permitted Indebtedness.
[***]=Certain Confidential Information Omitted
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7.5 Encumbrance. Create, incur, allow, or suffer any Lien on any of its property, or assign or convey any right to receive income, including the sale of any Accounts, or permit any of its
Subsidiaries to do so, except for Permitted Liens, or permit any Collateral not to be subject to the first priority security interest granted herein (except for Permitted Liens that are permitted by the terms of this Agreement to have priority over
Collateral Agent’s Lien), or enter into any agreement, document, instrument or other arrangement (except with or in favor of Collateral Agent, for the ratable benefit of the Lenders) with any Person which directly or indirectly prohibits or has the
effect of prohibiting Borrower, or any of its Subsidiaries, from assigning, mortgaging, pledging, granting a security interest in or upon, or encumbering any of Borrower’s or such Subsidiary’s Intellectual Property, except as is otherwise permitted
in Section 7.1 hereof and the definition of “Permitted Liens” herein.
7.6 Maintenance of Collateral Accounts. Maintain any Collateral Account except pursuant to the terms of Section 6.6 hereof.
7.7 Distributions; Investments. (a) Pay any dividends (other than dividends payable solely in capital stock) or make any distribution or payment in respect of or redeem, retire or purchase
any capital stock (other than (i) repurchases pursuant to the terms of employee stock purchase plans, employee restricted stock agreements, stockholder rights plans, director or consultant stock option plans, or similar plans, provided such
repurchases do not exceed [***] Dollars ($[***]) in the aggregate per fiscal year, and (ii) conversions of any of its convertible securities into Borrower’s equity securities) or (b) directly or indirectly make any Investment other than Permitted
Investments, or permit any of its Subsidiaries to do so.
7.8 Transactions with Affiliates. Directly or indirectly enter into or permit to exist any material transaction with any Affiliate of Borrower or any of its Subsidiaries, except for (a)
transactions that are in the ordinary course of Borrower’s or such Subsidiary’s business, upon fair and reasonable terms that are no less favorable to Borrower or such Subsidiary than would be obtained in an arm’s length transaction with a
non‑affiliated Person, and (b) Subordinated Debt or equity investments by Borrower’s investors in Borrower or its Subsidiaries.
7.9 Subordinated Debt. (a) Make or permit any payment on any Subordinated Debt, except under the terms of the subordination, intercreditor, or other similar agreement to which such
Subordinated Debt is subject, or (b) amend any provision in any document relating to the Subordinated Debt which would increase the amount thereof or adversely affect the subordination thereof to Obligations owed to the Lenders.
7.10 Compliance. Become an “investment company” or a company controlled by an “investment company”, under the Investment Company Act of 1940, as amended, or undertake as one of its important
activities extending credit to purchase or carry margin stock (as defined in Regulation U of the Board of Governors of the Federal Reserve System), or use the proceeds of any Credit Extension for that purpose; fail to meet the minimum funding
requirements of ERISA, permit a Reportable Event or Prohibited Transaction, as defined in ERISA, to occur; fail to comply with the Federal Fair Labor Standards Act or violate any other law or regulation, if the violation could reasonably be
expected to have a Material Adverse Change, or permit any of its Subsidiaries to do so; withdraw or permit any Subsidiary to withdraw from participation in, permit partial or complete termination of, or permit the occurrence of any other event with
respect to, any present pension, profit sharing and deferred compensation plan which could reasonably be expected to result in any liability of Borrower or any of its Subsidiaries, including any liability to the Pension Benefit Guaranty Corporation
or its successors or any other Governmental Authority.
7.11 Compliance with Anti‑Terrorism Laws. Collateral Agent hereby notifies Borrower and each of its Subsidiaries that pursuant to the requirements of Anti‑Terrorism Laws, and Collateral
Agent’s policies and practices, Collateral Agent is required to obtain, verify and record certain information and documentation that identifies Borrower and each of its Subsidiaries and their principals, which information includes the name and
address of Borrower and each of its Subsidiaries and their principals and such other information that will allow Collateral Agent to identify such party in accordance with Anti‑Terrorism Laws. Neither Borrower nor any of its Subsidiaries shall,
nor shall Borrower or any of its Subsidiaries permit any Affiliate to, directly or indirectly, knowingly enter into any documents, instruments, agreements or contracts with any Person listed on the OFAC Lists. Borrower and each of its Subsidiaries
shall immediately notify Collateral Agent if Borrower or such Subsidiary has knowledge that Borrower, or any Subsidiary or Affiliate of Borrower, is listed on the OFAC Lists or (a) is convicted on, (b) pleads nolo contendere to, (c) is indicted on, or (d) is arraigned and held over on charges involving money laundering or predicate crimes to money laundering. Neither Borrower nor any of its
Subsidiaries shall, nor shall Borrower or any of its Subsidiaries, permit any Affiliate to, directly or indirectly, (i) conduct any business or engage in any transaction or dealing with any Blocked Person, including, without limitation, the making
or receiving of any contribution of funds, goods or services to or for the benefit of any Blocked Person, (ii) deal in, or otherwise engage in any transaction relating to, any property or interests in property blocked pursuant to Executive Order
No. 13224 or any similar executive order or other Anti‑Terrorism Law, or (iii) engage in or conspire to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the prohibitions set
forth in Executive Order No. 13224 or other Anti‑Terrorism Law.
[***]=Certain Confidential Information Omitted
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8. EVENTS OF DEFAULT
Any one of the following shall constitute an event of default (an “Event of Default”) under this Agreement:
8.1 Payment Default. Borrower fails to (a) make any payment of principal or interest on any Credit Extension on its due date, or (b) pay any other Obligations within three (3) Business Days
after such Obligations are due and payable (which three (3) Business Day grace period shall not apply to payments due on the Maturity Date or the Revolving Line Maturity Date or the date of acceleration pursuant to Section 9.1 (a) hereof). During
the cure period, the failure to cure the payment default is not an Event of Default (but no Credit Extension will be made during the cure period);
8.2 Covenant
Default.
(a) Borrower or any of its Subsidiaries fails or neglects
to perform any obligation in Sections 6.2 (Financial Statements, Reports, Certificates), 6.4 (Taxes), 6.5 (Insurance), 6.6 (Operating Accounts), 6.7 (Protection of Intellectual Property Rights), 6.9 (Notice of Litigation and Default), 6.10
(Financial Covenant), 6.12 (Creation/Acquisition of Subsidiaries), 6.13 (Further Assurances) or 6.14 (Accounts Receivable) or Borrower violates any covenant in Section 7; or
(b) Borrower, or any of its Subsidiaries, fails or
neglects to perform, keep, or observe any other term, provision, condition, covenant or agreement contained in this Agreement or any Loan Documents, and as to any default (other than those specified in this Section 8) under such other term,
provision, condition, covenant or agreement that can be cured, has failed to cure the default within ten (10) days after the occurrence thereof; provided, however, that if the default cannot by its nature be cured within the ten (10) day period or
cannot after diligent attempts by Borrower be cured within such ten (10) day period, and such default is likely to be cured within a reasonable time, then Borrower shall have an additional period (which shall not in any case exceed thirty (30)
days) to attempt to cure such default, and within such reasonable time period the failure to cure the default shall not be deemed an Event of Default (but no Credit Extensions shall be made during such cure period). Grace periods provided under
this Section shall not apply, among other things, to financial covenants or any other covenants set forth in subsection (a) above;
8.3 Material Adverse Change. A Material Adverse Change occurs;
8.4 Attachment;
Levy; Restraint on Business.
(a) (i) The service of process seeking to attach, by
trustee or similar process, any funds of Borrower or any of its Subsidiaries or of any entity under control of Borrower or its Subsidiaries on deposit with any Lender or any Lender’s Affiliate or any bank or other institution at which Borrower or
any of its Subsidiaries maintains a Collateral Account, or (ii) a notice of lien, levy, or assessment is filed against Borrower or any of its Subsidiaries or their respective assets by any government agency, and the same under subclauses (i) and
(ii) hereof are not, within ten (10) days after the occurrence thereof, discharged or stayed (whether through the posting of a bond or otherwise); provided, however, no Credit Extensions shall be made during any ten (10) day cure period; and
(b) (i) any material portion of Borrower’s or any of its
Subsidiaries’ assets is attached, seized, levied on, or comes into possession of a trustee or receiver, or (ii) any court order enjoins, restrains, or prevents Borrower or any of its Subsidiaries from conducting any part of its business;
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8.5 Insolvency. (a) Borrower or any of its Subsidiaries is or becomes Insolvent; (b) Borrower or any of its Subsidiaries begins an Insolvency Proceeding; or (c) an Insolvency Proceeding is
begun against Borrower or any of its Subsidiaries and not dismissed or stayed within forty‑five (45) days (but no Credit Extensions shall be made while Borrower or any Subsidiary is Insolvent and/or until any Insolvency Proceeding is dismissed);
8.6 Other Agreements. There is a default in any agreement to which Borrower or any of its Subsidiaries is a party with a third party or parties resulting in a right by such third party or
parties, whether or not exercised, to accelerate the maturity of any Indebtedness in an amount in excess of [***] Dollars ($[***]) or that could reasonably be expected to have a Material Adverse Change; provided, however, that the Event of Default
under this Section 8.6 caused by the occurrence of a breach or default under such other agreement shall be cured or waived for purposes of this Agreement upon Collateral Agent receiving written notice from the party asserting such breach or default
of such cure or waiver of the breach or default under such other agreement, if at the time of such cure or waiver under such other agreement (x) Collateral Agent or any Lender has not declared an Event of Default under this Agreement and/or
exercised any rights with respect thereto; (y) any such cure or waiver does not result in an Event of Default under any other provision of this Agreement or any Loan Document; and (z) in connection with any such cure or waiver under such other
agreement, the terms of any agreement with such third party are not modified or amended in any manner which could in the good faith business judgment of Collateral Agent be materially less advantageous to Borrower;
8.7 Judgments. One or more judgments, orders, or decrees for the payment of money in an amount, individually or in the aggregate, of at least [***] Dollars ($[***]) (not covered by
independent third‑party insurance as to which liability has been accepted by such insurance carrier) shall be rendered against Borrower or any of its Subsidiaries and shall remain unsatisfied, unvacated, or unstayed for a period of ten (10) days
after the entry thereof (provided that no Credit Extensions will be made prior to the satisfaction, vacation, or stay of such judgment, order or decree);
8.8 Misrepresentations. Borrower or any of its Subsidiaries or any Person acting for Borrower or any of its Subsidiaries makes any representation, warranty, or other statement now or later
in this Agreement, any Loan Document or in any writing delivered to Collateral Agent and/or Lenders or to induce Collateral Agent and/or the Lenders to enter this Agreement or any Loan Document, and such representation, warranty, or other statement
is incorrect in any material respect when made;
8.9 Subordinated Debt. A default or breach occurs under any agreement between Borrower or any of its Subsidiaries and any creditor of Borrower or any of its Subsidiaries that signed a
subordination, intercreditor, or other similar agreement with Collateral Agent or the Lenders, or any creditor that has signed such an agreement with Collateral Agent or the Lenders breaches any terms of such agreement;
8.10 Guaranty. (a) Any Guaranty terminates or ceases for any reason to be in full force and effect; (b) any Guarantor does not perform any obligation or covenant under any Guaranty; (c) any
circumstance described in Sections 8.3, 8.4, 8.5, 8.7, or 8.8 occurs with respect to any Guarantor, or (d) the liquidation, winding up, or termination of existence of any Guarantor;
8.11 Governmental Approvals. Any Governmental Approval shall have been revoked, rescinded, suspended, modified in an adverse manner, or not renewed in the ordinary course for a full term and such revocation, rescission, suspension, modification or non‑renewal has resulted in or could reasonably be expected to result in a Material Adverse Change;
or
8.12 Lien Priority. Any Lien created hereunder or by any other Loan Document shall at any time fail to constitute a valid and perfected Lien on any of the Collateral purported to be secured
thereby, subject to no prior or equal Lien, other than Permitted Liens which are permitted to have priority in accordance with the terms of this Agreement.
[***]=Certain Confidential Information Omitted
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9. RIGHTS AND REMEDIES
9.1 Rights and
Remedies.
(a) Upon the occurrence and during the continuance of an
Event of Default, Collateral Agent may, and at the written direction of Required Lenders shall, without notice or demand, do any or all of the following: (i)
deliver notice of the Event of Default to Borrower, (ii) by notice to Borrower declare all Obligations immediately due and payable (but if an Event of Default described in Section 8.5 occurs all Obligations shall be immediately due and payable
without any action by Collateral Agent or the Lenders) or (iii) by notice to Borrower suspend or terminate the obligations, if any, of the Lenders to advance money or extend credit for Borrower’s benefit under this Agreement or under any other
agreement between Borrower and Collateral Agent and/or the Lenders (but if an Event of Default described in Section 8.5 occurs all obligations, if any, of the Lenders to advance money or extend credit for Borrower’s benefit under this Agreement or
under any other agreement between Borrower and Collateral Agent and/or the Lenders shall be immediately terminated without any action by Collateral Agent or the Lenders).
(b) Without limiting the rights of Collateral Agent and
the Lenders set forth in Section 9.1(a) above, upon the occurrence and during the continuance of an Event of Default, Collateral Agent shall have the right, without
notice or demand, to do any or all of the following:
(i) foreclose upon and/or sell or otherwise liquidate,
the Collateral;
(ii) apply to the Obligations any (a) balances and
deposits of Borrower that Collateral Agent or any Lender holds or controls, or (b) any amount held or controlled by Collateral Agent or any Lender owing to or for the credit or the account of Borrower; and/or
(iii) commence and prosecute an Insolvency Proceeding or
consent to Borrower commencing any Insolvency Proceeding.
(c) Without limiting the rights of Collateral Agent and
the Lenders set forth in Sections 9.1(a) and (b) above, upon the occurrence and during the continuance of an Event of Default, Collateral Agent shall have the right, without notice or demand, to do any or all of the following:
(i) settle or adjust disputes and claims directly with
Account Debtors for amounts on terms and in any order that Collateral Agent considers advisable, notify any Person owing Borrower money of Collateral Agent’s security interest in such funds, and verify the amount of such account;
(ii) make any payments and do any acts it considers
necessary or reasonable to protect the Collateral and/or its security interest in the Collateral. Borrower shall assemble the Collateral if Collateral Agent requests and make it available in a location as Collateral Agent reasonably designates.
Collateral Agent may enter premises where the Collateral is located, take and maintain possession of any part of the Collateral, and pay, purchase, contest, or compromise any Lien which appears to be prior or superior to its security interest and
pay all expenses incurred. Borrower grants Collateral Agent a license to enter and occupy any of its premises, without charge, to exercise any of Collateral Agent’s rights or remedies;
(iii) ship, reclaim, recover, store, finish, maintain,
repair, prepare for sale, and/or advertise for sale, the Collateral. Collateral Agent is hereby granted a non‑exclusive, royalty‑free license or other right to use, without charge, Borrower’s and each of its Subsidiaries’ labels, patents,
copyrights, mask works, rights of use of any name, trade secrets, trade names, trademarks, service marks, and advertising matter, or any similar property as it pertains to the Collateral, in completing production of, advertising for sale, and
selling any Collateral and, in connection with Collateral Agent’s exercise of its rights under this Section 9.1, Borrower’s and each of its Subsidiaries’ rights under all licenses and all franchise agreements inure to Collateral Agent, for the
benefit of the Lenders;
21
(iv) place a “hold” on any account maintained with
Collateral Agent or the Lenders and/or deliver a notice of exclusive control, any entitlement order, or other directions or instructions pursuant to any Control Agreement or similar agreements providing control of any Collateral;
(v) demand and receive possession of Borrower’s Books;
(vi) appoint a receiver to seize, manage and realize any
of the Collateral, and such receiver shall have any right and authority as any competent court will grant or authorize in accordance with any applicable law, including any power or authority to manage the business of Borrower or any of its
Subsidiaries; and
(vii) subject to clauses 9.1(a) and (b), exercise all
rights and remedies available to Collateral Agent and each Lender under the Loan Documents or at law or equity, including all remedies provided under the Code (including disposal of the Collateral pursuant to the terms thereof);
(viii) for any Letters of Credit, demand that Borrower
(i) deposit cash with Bank in an amount equal to (x) if such Letters of Credit are denominated in Dollars, then [***] ([***]%); and (y) if such Letters of Credit are denominated in a Foreign Currency, then [***] ([***]%), of the Dollar Equivalent
of the aggregate face amount of all Letters of Credit remaining undrawn (plus all interest, fees, and costs due or to become due in connection therewith (as estimated by Bank in its good faith business judgment)), to secure all of the Obligations
relating to such Letters of Credit, as collateral security for the repayment of any future drawings under such Letters of Credit, and Borrower shall forthwith deposit and pay such amounts, and (ii) pay in advance all letter of credit fees scheduled
to be paid or payable over the remaining term of any Letters of Credit; and
(ix) terminate any FX Contracts.
Notwithstanding any provision of this Section 9.1 to the contrary, upon the occurrence of any Event of Default, Collateral Agent shall have the right to
exercise any and all remedies referenced in this Section 9.1 without the written consent of Required Lenders following the occurrence of an Exigent Circumstance. As used in the immediately preceding sentence, “Exigent Circumstance” means any event or circumstance that, in the reasonable judgment of Collateral Agent, imminently threatens the ability of Collateral Agent to realize upon all or any
material portion of the Collateral, such as, without limitation, fraudulent removal, concealment, or abscondment thereof, destruction or material waste thereof, or failure of Borrower or any of its Subsidiaries after reasonable demand to maintain
or reinstate adequate casualty insurance coverage, or which, in the judgment of Collateral Agent, could reasonably be expected to result in a material diminution in value of the Collateral.
9.2 Power of Attorney. Borrower hereby irrevocably appoints Collateral Agent as its lawful attorney‑in‑fact, exercisable upon the occurrence and during the continuance of an Event of
Default, to: (a) endorse Borrower’s or any of its Subsidiaries’ name on any checks or other forms of payment or security; (b) sign Borrower’s or any of its Subsidiaries’ name on any invoice or xxxx of lading for any Account or drafts against
Account Debtors; (c) settle and adjust disputes and claims about the Accounts directly with Account Debtors, for amounts and on terms Collateral Agent determines reasonable; (d) make, settle, and adjust all claims under Borrower’s insurance
policies; (e) pay, contest or settle any Lien, charge, encumbrance, security interest, and adverse claim in or to the Collateral, or any judgment based thereon, or otherwise take any action to terminate or discharge the same; and (f) transfer the
Collateral into the name of Collateral Agent or a third party as the Code or any applicable law permits. Borrower hereby appoints Collateral Agent as its lawful attorney‑in‑fact to sign Borrower’s or any of its Subsidiaries’ name on any documents
necessary to perfect or continue the perfection of Collateral Agent’s security interest in the Collateral regardless of whether an Event of Default has occurred until all Obligations (other than inchoate indemnity obligations) have been satisfied
in full and Collateral Agent and the Lenders are under no further obligation to make Credit Extensions hereunder. Collateral Agent’s foregoing appointment as Borrower’s or any of its Subsidiaries’ attorney in fact, and all of Collateral Agent’s
rights and powers, coupled with an interest, are irrevocable until all Obligations (other than inchoate indemnity obligations) have been fully repaid and performed and Collateral Agent’s and the Lenders’ obligation to provide Credit Extensions
terminates.
[***]=Certain Confidential Information Omitted
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9.3 Protective Payments. If Borrower or any of its Subsidiaries fail to obtain the insurance called for by Section 6.5 or fails to pay any premium thereon or fails to pay any other amount
which Borrower or any of its Subsidiaries is obligated to pay under this Agreement or any other Loan Document, Collateral Agent may obtain such insurance or make such payment, and all amounts so paid by Collateral Agent are Lenders’ Expenses and
immediately due and payable, bearing interest at the Default Rate, and secured by the Collateral. Collateral Agent will make reasonable efforts to provide Borrower with notice of Collateral Agent obtaining such insurance or making such payment at
the time it is obtained or paid or within a reasonable time thereafter. No such payments by Collateral Agent are deemed an agreement to make similar payments in the future or Collateral Agent’s waiver of any Event of Default.
9.4 Application of Payments and Proceeds. Notwithstanding anything to the contrary contained in this Agreement, upon the occurrence and during the continuance of an Event of Default, (a)
Borrower irrevocably waives the right to direct the application of any and all payments at any time or times thereafter received by Collateral Agent from or on behalf of Borrower or any of its Subsidiaries of all or any part of the Obligations,
and, as between Borrower on the one hand and Collateral Agent and Lenders on the other, Collateral Agent shall have the continuing and exclusive right to apply and to reapply any and all payments received against the Obligations in such manner as
Collateral Agent may deem advisable notwithstanding any previous application by Collateral Agent, and (b) the proceeds of any sale of, or other realization upon all or any part of the Collateral shall be applied: (i) if such Collateral is Revolving
Line Priority Collateral, first, to the Lenders’ Expenses incurred in connection with the Revolving Line; second, to accrued and unpaid interest on the Obligations (including any interest which, but for the provisions of the United States
Bankruptcy Code, would have accrued on such amounts) under the Revolving Line; third, to the principal amount of the Obligations outstanding under the Revolving Line; fourth, to the Lenders’ Expenses incurred in connection with the Term Loans;
fifth, to accrued and unpaid interest on the Obligations (including any interest which, but for the provisions of the United States Bankruptcy Code, would have accrued on such amounts) under the Term Loans; sixth, to the principal amount of the
Obligations outstanding under the Term Loans, and (ii) if such Collateral is Term Loan Priority Collateral, first, to the Lenders’ Expenses incurred in connection with the Term Loans; second, to accrued and unpaid interest on the Obligations
(including any interest which, but for the provisions of the United States Bankruptcy Code, would have accrued on such amounts) under the Term Loans; third, to the principal amount of the Obligations outstanding under the Term Loans; fourth, to the
Lenders’ Expenses incurred in connection with the Revolving Line; fifth, to accrued and unpaid interest on the Obligations (including any interest which, but for the provisions of the United States Bankruptcy Code, would have accrued on such
amounts) under the Revolving Line; sixth, to the principal amount of the Obligations outstanding under the Revolving Line; and regardless of whether such Collateral is Revolving Line Priority Collateral or Term Loan Priority Collateral, seventh, to
any other indebtedness or obligations of Borrower owing to Collateral Agent or any Lender under the Loan Documents. Any balance remaining shall be delivered to Borrower or to whoever may be lawfully entitled to receive such balance or as a court
of competent jurisdiction may direct. In carrying out the foregoing, (x) amounts received shall be applied in the numerical order provided until exhausted prior to the application to the next succeeding category, and (y) each of the Persons
entitled to receive a payment in any particular category shall receive an amount equal to its pro rata share of amounts available to be applied pursuant thereto for such category. Any reference in this Agreement to an allocation between or sharing
by the Lenders of any right, interest or obligation “ratably,” “proportionally” or in similar terms shall refer to Pro Rata Share unless expressly provided otherwise. Collateral Agent, or if applicable, each Lender, shall promptly remit to the
other Lenders such sums as may be necessary to ensure the ratable repayment of each Lender’s portion of any Term Loan, Revolving Advance and the ratable distribution of interest, fees and reimbursements paid or made by Borrower. Notwithstanding
the foregoing, a Lender receiving a scheduled payment shall not be responsible for determining whether the other Lenders also received their scheduled payment on such date; provided, however, if it is later determined that a Lender received more
than its ratable share of scheduled payments made on any date or dates, then such Lender shall remit to Collateral Agent or other Lenders such sums as may be necessary to ensure the ratable payment of such scheduled payments, as instructed by
Collateral Agent. If any payment or distribution of any kind or character, whether in cash, properties or securities, shall be received by a Lender in excess of its ratable share, then the portion of such payment or distribution in excess of such
Lender’s ratable share shall be received by such Lender in trust for and shall be promptly paid over to the other Lender for application to the payments of amounts due on the other Lenders’ claims. To the extent any payment for the account of
Borrower is required to be returned as a voidable transfer or otherwise, the Lenders shall contribute to one another as is necessary to ensure that such return of payment is on a pro rata basis. If any Lender shall obtain possession of any
Collateral, it shall hold such Collateral for itself and as agent and bailee for Collateral Agent and other Lenders for purposes of perfecting Collateral Agent’s security interest therein.
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9.5 Liability for Collateral. So long as Collateral Agent and the Lenders comply with reasonable banking practices regarding the safekeeping of the Collateral in the possession or under the
control of Collateral Agent and the Lenders, Collateral Agent and the Lenders shall not be liable or responsible for: (a) the safekeeping of the Collateral; (b) any loss or damage to the Collateral; (c) any diminution in the value of the
Collateral; or (d) any act or default of any carrier, warehouseman, bailee, or other Person. Borrower bears all risk of loss, damage or destruction of the Collateral.
9.6 No Waiver; Remedies Cumulative. Failure by Collateral Agent or any Lender, at any time or times, to require strict performance by Borrower of any provision of this Agreement or any other
Loan Document shall not waive, affect, or diminish any right of Collateral Agent or any Lender thereafter to demand strict performance and compliance herewith or therewith. No waiver hereunder shall be effective unless signed by Collateral Agent
and the Required Lenders and then is only effective for the specific instance and purpose for which it is given. The rights and remedies of Collateral Agent and the Lenders under this Agreement and the other Loan Documents are cumulative.
Collateral Agent and the Lenders have all rights and remedies provided under the Code, any applicable law, by law, or in equity. The exercise by Collateral Agent or any Lender of one right or remedy is not an election, and Collateral Agent’s or
any Lender’s waiver of any Event of Default is not a continuing waiver. Collateral Agent’s or any Lender’s delay in exercising any remedy is not a waiver, election, or acquiescence.
9.7 Demand Waiver. Borrower waives, to the fullest extent permitted by law, demand, notice of default or dishonor, notice of payment and nonpayment, notice of any default, nonpayment at
maturity, release, compromise, settlement, extension, or renewal of accounts, documents, instruments, chattel paper, and guarantees held by Collateral Agent or any Lender on which Borrower or any Subsidiary is liable.
10. NOTICES
All notices, consents, requests, approvals, demands, or other communication (collectively, “Communication”) by any party to this Agreement or any other Loan Document must be in writing and shall be deemed to have been validly served, given, or delivered: (a) upon the earlier of actual
receipt and three (3) Business Days after deposit in the U.S. mail, first class, registered or certified mail return receipt requested, with proper postage prepaid; (b) upon transmission, when sent by facsimile transmission; (c) one (1) Business
Day after deposit with a reputable overnight courier with all charges prepaid; or (d) when delivered, if hand‑delivered by messenger, all of which shall be addressed to the party to be notified and sent to the address, facsimile number, or email
address indicated below. Any of Collateral Agent, Lender or Borrower may change its mailing address or facsimile number by giving the other party written notice thereof in accordance with the terms of this Section 10.
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If to Borrower:
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Castle Biosciences, Inc.
000 Xxxxx Xxxxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxxx, Xxxxx 00000
Attn: Xxxxx Xxxxxx
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with a copy (which shall not constitute notice) to:
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Xxxxxx LLP
000 Xxxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxxx-Xxxxx
Fax:
Email:
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If to Collateral Agent:
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OXFORD FINANCE LLC
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Legal Department
Fax: (703) 519‑5225
Email:
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with a copy to
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SILICON VALLEY BANK
0000 Xx Xxxxx Xxxxxxx Xxxxx, Xxxxx 0000
Xxx Xxxxx, XX 00000
Attn: Xxxxxxx Xxxxxx
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with a copy (which shall not constitute notice) to:
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Xxxxxxxx Xxxxxxx LLP
000 0xx Xxxxxx, XX, Xxxxx 0000
Xxxxxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxxxxxxx
Fax:
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11. CHOICE OF LAW, VENUE AND JURY TRIAL WAIVER, AND JUDICIAL REFERENCE
California law governs the Loan Documents without regard to principles of conflicts of law. Borrower, Collateral Agent and each Lender
each submit to the exclusive jurisdiction of the State and Federal courts in Santa Xxxxx County, California; provided, however, that nothing in this Agreement shall be deemed to operate to preclude Collateral Agent or any Lender from bringing suit
or taking other legal action in any other jurisdiction to realize on the Collateral or any other security for the Obligations, or to enforce a judgment or other court order in favor of Collateral Agent or any Lender. Borrower expressly submits and
consents in advance to such jurisdiction in any action or suit commenced in any such court, and Borrower hereby waives any objection that it may have based upon lack of personal jurisdiction, improper venue, or forum non conveniens and hereby
consents to the granting of such legal or equitable relief as is deemed appropriate by such court. Borrower hereby waives personal service of the summons, complaints, and other process issued in such action or suit and agrees that service of such
summons, complaints, and other process may be made by registered or certified mail addressed to Borrower at the address set forth in, or subsequently provided by Borrower in accordance with, Section 10 of this Agreement and that service so made
shall be deemed completed upon the earlier to occur of Borrower’s actual receipt thereof or three (3) days after deposit in the U.S. mails, proper postage prepaid.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, BORROWER, COLLATERAL AGENT AND EACH LENDER EACH WAIVE THEIR RIGHT TO A JURY TRIAL OF
ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR BASED UPON THIS AGREEMENT, THE LOAN DOCUMENTS OR ANY CONTEMPLATED TRANSACTION, INCLUDING CONTRACT, TORT, BREACH OF DUTY AND ALL OTHER CLAIMS. THIS WAIVER IS A MATERIAL INDUCEMENT FOR EACH PARTY TO
ENTER INTO THIS AGREEMENT. EACH PARTY HAS REVIEWED THIS WAIVER WITH ITS COUNSEL.
WITHOUT INTENDING IN ANY WAY TO LIMIT THE PARTIES’ AGREEMENT TO WAIVE THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY, if the above waiver of the right to a
trial by jury is not enforceable, the parties hereto agree that any and all disputes or controversies of any nature between them arising at any time shall be decided by a reference to a private judge, mutually selected by the parties (or, if they
cannot agree, by the Presiding Judge of the Santa Xxxxx County, California Superior Court) appointed in accordance with California Code of Civil Procedure Section 638 (or pursuant to comparable provisions of federal law if the dispute falls within
the exclusive jurisdiction of the federal courts), sitting without a jury, in Santa Xxxxx County, California; and the parties hereby submit to the jurisdiction of such court. The reference proceedings shall be conducted pursuant to and in
accordance with the provisions of California Code of Civil Procedure §§ 638 through 645.1, inclusive. The private judge shall have the power, among others, to grant provisional relief, including without limitation, entering temporary restraining
orders, issuing preliminary and permanent injunctions and appointing receivers. All such proceedings shall be closed to the public and confidential and all records relating thereto shall be permanently sealed. If during the course of any dispute,
a party desires to seek provisional relief, but a judge has not been appointed at that point pursuant to the judicial reference procedures, then such party may apply to the Santa Xxxxx County, California Superior Court for such relief. The
proceeding before the private judge shall be conducted in the same manner as it would be before a court under the rules of evidence applicable to judicial proceedings. The parties shall be entitled to discovery which shall be conducted in the same
manner as it would be before a court under the rules of discovery applicable to judicial proceedings. The private judge shall oversee discovery and may enforce all discovery rules and orders applicable to judicial proceedings in the same manner as
a trial court judge. The parties agree that the selected or appointed private judge shall have the power to decide all issues in the action or proceeding, whether of fact or of law, and shall report a statement of decision thereon pursuant to
California Code of Civil Procedure § 644(a). Nothing in this paragraph shall limit the right of any party at any time to exercise self‑help remedies, foreclose against collateral, or obtain provisional remedies. The private judge shall also
determine all issues relating to the applicability, interpretation, and enforceability of this paragraph.
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12. GENERAL PROVISIONS
12.1 Successors and Assigns. This Agreement binds and is for the benefit of the successors and permitted assigns of each party. Borrower may not transfer, pledge or assign this Agreement or
any rights or obligations under it without Collateral Agent’s and each Lender’s prior written consent (which may be granted or withheld in Collateral Agent’s and each Lender’s discretion, subject to Section 12.6). The Lenders have the right,
without the consent of or notice to Borrower, to sell, transfer, assign, pledge, negotiate, or grant participation in (any such sale, transfer, assignment, negotiation, or grant of a participation, a “Lender Transfer”) all or any part of, or any interest in, the Lenders’ obligations, rights, and benefits under this Agreement and the other Loan Documents; provided, however, that any such Lender Transfer (other than a transfer, pledge, sale or
assignment to an Eligible Assignee) of its obligations, rights, and benefits under this Agreement and the other Loan Documents shall require the prior written consent of the Required Lenders (such approved assignee, an “Approved Lender”). Borrower and Collateral Agent shall be entitled to continue to deal
solely and directly with such Lender in connection with the interests so assigned until Collateral Agent shall have received and accepted an effective assignment agreement in form satisfactory to Collateral Agent executed, delivered and fully
completed by the applicable parties thereto, and shall have received such other information regarding such Eligible Assignee or Approved Lender as Collateral Agent reasonably shall require. Notwithstanding anything to the contrary contained
herein, so long as no Event of Default has occurred and is continuing, no Lender Transfer (other than a Lender Transfer (i) in respect of the Warrants or (ii) in connection with (x) assignments by a Lender due to a forced divestiture at the request
of any regulatory agency; or (y) upon the occurrence of a default, event of default or similar occurrence with respect to a Lender’s own financing or securitization transactions) shall be permitted, without Borrower’s consent, to any Person which
is an Affiliate or Subsidiary of Borrower, a direct competitor of Borrower or a vulture hedge fund, each as determined by Collateral Agent.
12.2 Indemnification. Borrower agrees to indemnify, defend and hold Collateral Agent and the Lenders and their respective directors, officers, employees, agents, attorneys, or any other
Person affiliated with or representing Collateral Agent or the Lenders (each, an “Indemnified Person”) harmless against: (a) all obligations, demands, claims,
and liabilities (collectively, “Claims”) asserted by any other party in connection with; related to; following; or arising from, out of or under, the
transactions contemplated by the Loan Documents; and (b) all losses or Lenders’ Expenses incurred, or paid by Indemnified Person in connection with; related to; following; or arising from, out of or under, the transactions contemplated by the Loan
Documents between Collateral Agent, and/or the Lenders and Borrower (including reasonable attorneys’ fees and expenses), except for Claims and/or losses directly caused by such Indemnified Person’s gross negligence or willful misconduct. Borrower
hereby further indemnifies, defends and holds each Indemnified Person harmless from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, costs, expenses and disbursements of any kind or
nature whatsoever (including the fees and disbursements of counsel for such Indemnified Person) in connection with any investigative, response, remedial, administrative or judicial matter or proceeding, whether or not such Indemnified Person shall
be designated a party thereto and including any such proceeding initiated by or on behalf of Borrower, and the reasonable expenses of investigation by engineers, environmental consultants and similar technical personnel and any commission, fee or
compensation claimed by any broker (other than any broker retained by Collateral Agent or Lenders) asserting any right to payment for the transactions contemplated hereby which may be imposed on, incurred by or asserted against such Indemnified
Person as a result of or in connection with the transactions contemplated hereby and the use or intended use of the proceeds of the loan proceeds except for liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims,
costs, expenses and disbursements directly caused by such Indemnified Person’s gross negligence or willful misconduct.
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12.3 Time of Essence. Time is of the essence for the performance of all Obligations in this Agreement.
12.4 Severability of Provisions. Each provision of this Agreement is severable from every other provision in determining the enforceability of any provision.
12.5 Correction of Loan Documents. Collateral Agent and the Lenders may correct patent errors and fill in any blanks in this Agreement and the other Loan Documents consistent with the
agreement of the parties.
12.6 Amendments in Writing; Integration. (a) No amendment, modification, termination or waiver of any provision of this Agreement or any other Loan Document, no approval or consent
thereunder, or any consent to any departure by Borrower or any of its Subsidiaries therefrom, shall in any event be effective unless the same shall be in writing and signed by Borrower, Collateral Agent and the Required Lenders provided that:
(i) no such amendment, waiver or other modification that
would have the effect of increasing or reducing a Lender’s Term Loan Commitment, Term Loan Commitment Percentage or Revolving Line Commitment Percentage shall be effective as to such Lender without such Lender’s written consent;
(ii) no such amendment, waiver or modification that
would affect the rights and duties of Collateral Agent shall be effective without Collateral Agent’s written consent or signature;
(iii) no such amendment, waiver or other modification
shall, unless signed by all the Lenders directly affected thereby, (A) reduce the principal of, rate of interest on or any fees with respect to any Term Loan or Revolving Advance or forgive any principal, interest (other than default interest) or
fees (other than late charges) with respect to any Term Loan or Revolving Advance (B) postpone the date fixed for, or waive, any payment of principal of any Term Loan or Revolving Advance or of interest on any Term Loan or Revolving Advance (other
than default interest) or any fees provided for hereunder (other than late charges or for any termination of any commitment); (C) change the definition of the term “Required
Lenders” or the percentage of Lenders which shall be required for the Lenders to take any action hereunder; (D) release all or substantially all of any material portion of the Collateral, authorize Borrower to sell or otherwise dispose of
all or substantially all or any material portion of the Collateral or release any Guarantor of all or any portion of the Obligations or its guaranty obligations with respect thereto, except, in each case with respect to this clause (D), as
otherwise may be expressly permitted under this Agreement or the other Loan Documents (including in connection with any disposition permitted hereunder); (E) amend, waive or otherwise modify this Section 12.6 or the definitions of the terms used in
this Section 12.6 insofar as the definitions affect the substance of this Section 12.6; (F) consent to the assignment, delegation or other transfer by Borrower of any of its rights and obligations under any Loan Document or release Borrower of its
payment obligations under any Loan Document, except, in each case with respect to this clause (F), pursuant to a merger or consolidation permitted pursuant to this Agreement; (G) amend any of the provisions of Section 9.4 or amend any of the
definitions of Pro Rata Share, Term Loan Commitment, Term Loan Commitment Percentage, Revolving Line Commitment or Revolving Line Commitment Percentage or that provide for the Lenders to receive their Pro Rata Shares of any fees, payments, setoffs
or proceeds of Collateral hereunder; (H) subordinate the Liens granted in favor of Collateral Agent securing the Obligations; or (I) amend any of the provisions of Section 12.10. It is hereby understood and agreed that all Lenders shall be deemed
directly affected by an amendment, waiver or other modification of the type described in the preceding clauses (C), (D), (E), (F), (G) and (H) of the preceding sentence;
(iv) the provisions of the foregoing clauses (i), (ii)
and (iii) are subject to the provisions of any interlender or agency agreement among the Lenders and Collateral Agent pursuant to which any Lender may agree to give its consent in connection with any amendment, waiver or modification of the Loan
Documents only in the event of the unanimous agreement of all Lenders.
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(b) Other than as expressly provided for in Section
12.6(a)(i)‑(iii), Collateral Agent may, if requested by the Required Lenders, from time to time designate covenants in this Agreement less restrictive by notification to a representative of Borrower.
(c) This Agreement and the Loan Documents represent the
entire agreement about this subject matter and supersede prior negotiations or agreements. All prior agreements, understandings, representations, warranties, and negotiations between the parties about the subject matter of this Agreement and the
Loan Documents merge into this Agreement and the Loan Documents.
12.7 Counterparts. This Agreement may be executed in any number of counterparts and by different parties on separate counterparts, each of which, when executed and delivered, is an original,
and all taken together, constitute one Agreement.
12.8 Survival. All covenants, representations and warranties made in this Agreement continue in full force and effect until this Agreement has terminated pursuant to its terms and all
Obligations (other than inchoate indemnity obligations and any other obligations which, by their terms, are to survive the termination of this Agreement) have been satisfied. Without limiting the foregoing, except as otherwise provided in Section
4.1, the grant of security interest by Borrower in Section 4.1 shall survive until the termination of all Bank Services Agreements. The obligation of Borrower in Section 12.2 to indemnify each Lender and Collateral Agent, as well as the
confidentiality provisions in Section 12.9 below, shall survive until the statute of limitations with respect to such claim or cause of action shall have run.
12.9 Confidentiality. In handling any confidential information of Borrower, the Lenders and Collateral Agent shall exercise the same degree of care that it exercises for their own proprietary
information, but disclosure of information may be made: (a) subject to the terms and conditions of this Agreement, to the Lenders’ and Collateral Agent’s Subsidiaries or Affiliates, or in connection with a Lender’s own financing or securitization
transactions and upon the occurrence of a default, event of default or similar occurrence with respect to such financing or securitization transaction; (b) to prospective transferees (other than those identified in (a) above) or purchasers of any
interest in the Credit Extensions (provided, however, the Lenders and Collateral Agent shall, except upon the occurrence and during the continuance of an Event of Default, obtain such prospective transferee’s or purchaser’s agreement to the terms
of this provision or to similar confidentiality terms); (c) as required by law, regulation, subpoena, or other order; (d) to Lenders’ or Collateral Agent’s regulators or as otherwise required in connection with an examination or audit; (e) as
Collateral Agent reasonably considers appropriate in exercising remedies under the Loan Documents; and (f) to third party service providers of the Lenders and/or Collateral Agent so long as such service providers have executed a confidentiality
agreement with the Lenders and Collateral Agent with terms no less restrictive than those contained herein. Confidential information does not include information that either: (i) is in the public domain or in the Lenders’ and/or Collateral Agent’s
possession when disclosed to the Lenders and/or Collateral Agent, or becomes part of the public domain after disclosure to the Lenders and/or Collateral Agent; or (ii) is disclosed to the Lenders and/or Collateral Agent by a third party, if the
Lenders and/or Collateral Agent does not know that the third party is prohibited from disclosing the information. Collateral Agent and the Lenders may use confidential information for any purpose, including, without limitation, for the development
of client databases, reporting purposes, and market analysis. The provisions of the immediately preceding sentence shall survive the termination of this Agreement. The agreements provided under this Section 12.9 supersede all prior agreements,
understanding, representations, warranties, and negotiations between the parties about the subject matter of this Section 12.9.
12.10 Right of Set Off. Borrower hereby grants to Collateral Agent and to each Lender, a lien, security interest and right of set off as security for all Obligations to Collateral Agent and
each Lender hereunder, whether now existing or hereafter arising upon and against all deposits, credits, collateral and property, now or hereafter in the possession, custody, safekeeping or control of Collateral Agent or the Lenders or any entity
under the control of Collateral Agent or the Lenders (including a Collateral Agent affiliate) or in transit to any of them. At any time after the occurrence and during the continuance of an Event of Default, without demand or notice, Collateral
Agent or the Lenders may set off the same or any part thereof and apply the same to any liability or obligation of Borrower even though unmatured and regardless of the adequacy of any other collateral securing the Obligations. ANY AND ALL RIGHTS
TO REQUIRE COLLATERAL AGENT TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF BORROWER ARE
HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED.
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12.11 Silicon Valley Bank as Agent. Collateral Agent hereby appoints Silicon Valley Bank (“SVB”) as its
agent (and SVB hereby accepts such appointment) for the purpose of perfecting Collateral Agent’s Liens in assets which, in accordance with Article 8 or Article 9, as applicable, of the Code can be perfected by possession or control, including
without limitation, all deposit accounts maintained at SVB.
12.12 Cooperation of Borrower. If necessary, Borrower agrees to (i) execute any documents (including new Secured Promissory Notes) reasonably required to effectuate and acknowledge each
assignment of a Term Loan Commitment, Revolving Line Commitment or Credit Extension to an assignee in accordance with Section 12.1, (ii) make Borrower’s management available to meet with Collateral Agent and prospective participants and assignees
of Term Loan Commitments, Revolving Line Commitments or Credit Extensions (which meetings shall be conducted no more often than twice every twelve months unless an Event of Default has occurred and is continuing), and (iii) assist Collateral Agent
or the Lenders in the preparation of information relating to the financial affairs of Borrower as any prospective participant or assignee of a Term Loan Commitment, Revolving Line Commitment or Credit Extensions reasonably may request. Subject to
the provisions of Section 12.9, Borrower authorizes each Lender to disclose to any prospective participant or assignee of a Term Loan Commitment or Revolving Line Commitment, any and all information in such Lender’s possession concerning Borrower
and its financial affairs which has been delivered to such Lender by or on behalf of Borrower pursuant to this Agreement, or which has been delivered to such Lender by or on behalf of Borrower in connection with such Lender’s credit evaluation of
Borrower prior to entering into this Agreement.
13. DEFINITIONS
13.1 Definitions. As used in this Agreement, the following terms have the following meanings:
“Account” is any “account” as defined in the
Code with such additions to such term as may hereafter be made, and includes, without limitation, all accounts receivable and other sums owing to Borrower.
“Account Debtor” is any “account debtor” as
defined in the Code with such additions to such term as may hereafter be made.
“Affiliate” of any Person is a Person that owns
or controls directly or indirectly the Person, any Person that controls or is controlled by or is under common control with the Person, and each of that Person’s senior executive officers, directors, partners and, for any Person that is a limited
liability company, that Person’s managers and members.
“Agreement” is defined in the preamble hereof.
“Amortization Date” is, with respect to the
Term Loans, June 1, 2020.
“Annual Projections” is defined in Section
6.2(a).
“Annual Revolving Line Monitoring Fee” is an annual payment due on the Effective Date and on each anniversary of the Effective Date until the Revolving Line Maturity Date, equal to the aggregate Revolving Line Commitment Amounts
multiplied by one quarter of one percent (0.25%), payable to Lenders in accordance with their respective Pro Rata Shares.
“Anti‑Terrorism Laws” are any laws relating to
terrorism or money laundering, including Executive Order No. 13224 (effective September 24, 2001), the USA PATRIOT Act, the laws comprising or implementing the Bank Secrecy Act, and the laws administered by OFAC.
“Approved Fund” is any (i) investment company, fund, trust, securitization vehicle or conduit that is (or will be) engaged in making, purchasing, holding or
otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its business or (ii) any Person (other than a natural person) which temporarily warehouses loans for any Lender or any entity described in the
preceding clause (i) and that, with respect to each of the preceding clauses (i) and (ii), is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) a Person (other than a natural person) or an Affiliate of a Person (other
than a natural person) that administers or manages a Lender.
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“Approved Lender” is defined in Section 12.1.
“Availability Amount” is (a) the lesser of (i)
the Revolving Line or (ii) the amount available under the Borrowing Base minus (b) the outstanding principal balance of any Revolving Advances.
“Bank” is defined in the preamble hereof.
“Bank Services” are any products, credit
services, and/or financial accommodations previously, now, or hereafter provided to Borrower or any of its Subsidiaries by Bank or any Bank Affiliate, including, without limitation, any letters of credit, cash management services (including,
without limitation, merchant services, direct deposit of payroll, business credit cards, and check cashing services), interest rate swap arrangements, and foreign exchange services as any such products or services may be identified in Bank’s
various agreements related thereto (each, a “Bank Services Agreement”).
“Basic Rate” is (a) with respect to the Term
Loan, the floating per annum rate of interest (based on a year of three hundred sixty (360) days) equal to the greater of (i) eight and fifty-five hundredths of one percent (8.55%) and (ii) the sum of (A) the thirty (30) day U.S. LIBOR rate
reported in the Wall Street Journal on the last Business Day of the month that immediately precedes the month in which the interest will accrue, plus (B) six and
forty-eight hundredths of one percent (6.48%), and (b) with respect to a Revolving Advance, the floating per annum rate of interest (based on a year of three hundred sixty (360) days) equal to the greater of (i) six and one quarter of one percent
(6.25%) and (ii) the sum of (A) the thirty (30) day U.S. LIBOR rate reported in the Wall Street Journal on the last Business Day of the month that immediately precedes
the month in which the interest will accrue, plus (B) five and forty-eight hundredths of one percent (5.48%). If The Wall Street Journal (or another nationally
recognized rate reporting source acceptable to Collateral Agent) no longer reports the U.S. LIBOR Rate or if such interest rate no longer exists or if The Wall Street Journal
no longer publishes the U.S. LIBOR Rate or ceases to exist, Collateral Agent may in good faith select a replacement interest rate or replacement publication, as the case may be. Notwithstanding the foregoing, the Basic Rate for the Term Loan for
the period from the Effective Date through and including November 30, 2018 shall not be less than 8.78688%.”
“Blocked Person” is any Person: (a) listed in the annex to, or is otherwise subject to the provisions of, Executive Order No. 13224, (b) a Person owned or controlled by, or acting for or on behalf of,
any Person that is listed in the annex to, or is otherwise subject to the provisions of, Executive Order No. 13224, (c) a Person with which any Lender is prohibited from dealing or otherwise engaging in any transaction by any Anti‑Terrorism Law,
(d) a Person that commits, threatens or conspires to commit or supports “terrorism” as defined in Executive Order No. 13224, or (e) a Person that is named a “specially designated national” or “blocked person” on the most current list published by
OFAC or other similar list.
“Borrower” is defined in the preamble hereof.
“Borrower’s Books” are Borrower’s or any of its
Subsidiaries’ books and records including ledgers, federal, and state tax returns, records regarding Borrower’s or its Subsidiaries’ assets or liabilities, the Collateral, business operations or financial condition, and all computer programs or
storage or any equipment containing such information.
“Borrowing Base” is (a) at all times that the Streamline Period is in effect, (i) [***] percent ([***]%) with respect to Eligible CM Accounts on an aggregate basis, and (ii) [***] percent ([***]%)
with respect to Eligible UV Accounts on an aggregate basis, and (b) at all times that the Streamline Period is not in effect, (i) [***] percent ([***]%) with respect to specific Eligible CM Accounts, and (ii) [***] percent ([***]%) with respect to specific Eligible UV Accounts; in either case, as determined by the Lenders from Borrower’s most recent Borrowing Base Certificate and Transaction Report; provided, however, that the
Lenders may decrease the foregoing percentage based on the quality and dilution of Eligible Accounts as determined by the Lenders in their good faith business judgment by initial and ongoing periodic collateral field examinations; provided further,
however, that the Lenders may decrease the foregoing percentage in their good faith business judgment based on events, conditions, contingencies, or risks which, as determined by the Lenders, may adversely affect the Collateral or its value;
provided further that the Lenders may elect to offset Deferred Revenue against certain receivable availability on a case-by-case basis when a Streamline Period is not in effect.
[***]=Certain Confidential Information Omitted
30
“Borrowing Base Certificate” is that certain
certificate in the form attached hereto as Exhibit E.
“Business Day” is any day that is not a
Saturday, Sunday or a day on which Collateral Agent is closed.
“Cash Equivalents” are (a) marketable direct
obligations issued or unconditionally guaranteed by the United States or any agency or any State thereof having maturities of not more than two (2) years from the date of acquisition; (b) commercial paper maturing no more than two (2) years after
its creation and having the highest rating from either Standard & Poor’s Ratings Group or Xxxxx’x Investors Service, Inc., (c) certificates of deposit maturing no more than two (2) years after issue provided that the account in which any such
certificate of deposit is maintained is subject to a Control Agreement in favor of Collateral Agent, and (d) money market funds at least ninety-five (95%) of the assets of which constitute Cash Equivalents of the kinds described in clauses (a)
through 9c) of this definition. For the avoidance of doubt, the direct purchase by Borrower or any of its Subsidiaries of any Auction Rate Securities, or purchasing participations in, or entering into any type of swap or other derivative
transaction, or otherwise holding or engaging in any ownership interest in any type of Auction Rate Security by Borrower or any of its Subsidiaries shall be conclusively determined by the Lenders as an ineligible Cash Equivalent, and any such
transaction shall expressly violate each other provision of this Agreement governing Permitted Investments. Notwithstanding the foregoing, Cash Equivalents does not include and Borrower, and each of its Subsidiaries, are prohibited from
purchasing, purchasing participations in, entering into any type of swap or other equivalent derivative transaction, or otherwise holding or engaging in any ownership interest in any type of debt instrument, including, without limitation, any
corporate or municipal bonds with a long‑term nominal maturity for which the interest rate is reset through a dutch auction and more commonly referred to as an auction
rate security (each, an “Auction Rate Security”).
“Claims” are defined in Section 12.2.
“Code” is the Uniform Commercial Code, as the same may, from time to time, be enacted and in effect in the State of California; provided, that, to the extent that the Code is used to define any term herein or in any Loan
Document and such term is defined differently in different Articles or Divisions of the Code, the definition of such term contained in Article or Division 9 shall govern; provided further, that in the event that, by reason of mandatory provisions
of law, any or all of the attachment, perfection, or priority of, or remedies with respect to, Collateral Agent’s Lien on any Collateral is governed by the Uniform Commercial Code in effect in a jurisdiction other than the State of California,
the term “Code” shall mean the Uniform Commercial Code as enacted and in effect in such other jurisdiction solely for purposes of the provisions thereof relating to such attachment, perfection, priority, or remedies and for purposes of
definitions relating to such provisions.
“Collateral” is any and all properties, rights
and assets of Borrower described on Exhibit A.
“Collateral Account” is any Deposit Account,
Securities Account, or Commodity Account, or any other bank account maintained by Borrower or any Subsidiary at any time.
“Collateral Agent” is, Oxford, not in its
individual capacity, but solely in its capacity as agent on behalf of and for the benefit of the Lenders.
“Commodity Account” is any “commodity account”
as defined in the Code with such additions to such term as may hereafter be made.
“Communication” is defined in Section 10.
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“Compliance Certificate” is that certain
certificate in the form attached hereto as Exhibit C.
“Contingent Obligation” is, for any Person, any
direct or indirect liability, contingent or not, of that Person for (a) any indebtedness, lease, dividend, letter of credit or other obligation of another such as an obligation directly or indirectly guaranteed, endorsed, co‑made, discounted or
sold with recourse by that Person, or for which that Person is directly or indirectly liable; (b) any obligations for undrawn letters of credit for the account of that Person; and (c) all obligations from any interest rate, currency or commodity
swap agreement, interest rate cap or collar agreement, or other agreement or arrangement designated to protect a Person against fluctuation in interest rates, currency exchange rates or commodity prices; but “Contingent Obligation” does not include
endorsements in the ordinary course of business. The amount of a Contingent Obligation is the stated or determined amount of the primary obligation for which the Contingent Obligation is made or, if not determinable, the maximum reasonably
anticipated liability for it determined by the Person in good faith; but the amount may not exceed the maximum of the obligations under any guarantee or other support arrangement.
“Control Agreement” is any control agreement
entered into among the depository institution at which Borrower or any of its Subsidiaries maintains a Deposit Account or the securities intermediary or commodity intermediary at which Borrower or any of its Subsidiaries maintains a Securities
Account or a Commodity Account, Borrower and such Subsidiary, and Collateral Agent pursuant to which Collateral Agent obtains control (within the meaning of the Code) for the benefit of the Lenders over such Deposit Account, Securities Account, or
Commodity Account.
“Copyrights” are any and all copyright rights,
copyright applications, copyright registrations and like protections in each work of authorship and derivative work thereof, whether published or unpublished and whether or not the same also constitutes a trade secret.
“Covered Beneficiaries” means Borrower’s
patients for whom services rendered by Borrower are covered by United States federal or state government or private-paid insurance.
“Credit Extension” is any Term Loan, any
Revolving Advance or any other extension of credit by Collateral Agent or Lenders for Borrower’s benefit.
“Default Rate” is defined in Section 2.4(b).
“Deferred Revenue” is all amounts received or
invoiced in advance of performance under contracts and not yet recognized as revenue.
“Deposit Account” is any “deposit account” as
defined in the Code with such additions to such term as may hereafter be made.
“Designated Deposit Account” is Borrower’s
deposit account, account number [***], maintained with Bank.
“Disbursement Letter” is that certain form
attached hereto as Exhibit B‑1.
“Dollar Equivalent” is, at any time, (a) with
respect to any amount denominated in Dollars, such amount, and (b) with respect to any amount denominated in a Foreign Currency, the equivalent amount therefor in Dollars as determined by Bank at such time on the basis of the then‑prevailing rate
of exchange in San Francisco, California, for sales of the Foreign Currency for transfer to the country issuing such Foreign Currency.
“Dollars,” “dollars”
and “$” each mean lawful money of the United States.
“Early Termination Fee” is a fully earned and
non-refundable termination fee due and payable by Borrower on the earlier to occur of (a) the acceleration of any Term Loan, or (b) the prepayment of a Term Loan pursuant to Section
2.2(c) or (d), in an amount equal to $[***], payable to Lenders in accordance with their respective Pro Rata Shares.
[***]=Certain Confidential Information Omitted
32
“Effective Date” is defined in the preamble of
this Agreement.
“Eligible Accounts” means Accounts which arise
in the ordinary course of Borrower’s business that meet all Borrower’s representations and warranties in Section 5.11 of this Agreement, and are due and owing from Account Debtors
deemed creditworthy by Lenders and Collateral Agent in their sole discretion. Collateral Agent and the Lenders reserve the right at any time after the Effective Date to adjust any of the criteria set forth below and to establish new
criteria in their good faith business judgment. Unless Collateral Agent and Required Lenders otherwise agree in writing, Eligible Accounts shall not include:
(a) Accounts for which the Account Debtor is Borrower’s
Affiliate, officer, employee, or agent;
(b) Accounts that the Account Debtor has not paid within
(i) [***] ([***]) days for Eligible CM
Accounts and (ii) [***] ([***]) days for Eligible UV Accounts, of invoice date regardless of invoice
payment period terms;
(c) [reserved];
(d) Accounts owing from an Account Debtor which does not
have its principal place of business in the United States unless, when a Streamline Period is not in effect, such Accounts are otherwise approved by Collateral Agent and the Required
Lenders in writing on a case-by-case basis in their sole discretion;
(e) Accounts billed and/or payable outside of the United
States (sometimes called foreign invoiced accounts);
(f) Accounts owing from an Account Debtor to the extent
that Borrower is indebted or obligated in any manner to the Account Debtor (as creditor, lessor, supplier or otherwise sometimes called “contra” accounts, accounts payable, customer deposits or credit accounts).
(g) Accounts owing from an Account Debtor which is a
United States government entity or any department, agency, or instrumentality thereof (but specifically excluding Medicare) unless Borrower has assigned its payment rights to
Collateral Agent and the assignment has been acknowledged under the Federal Assignment of Claims Act of 1940, as amended, or unless such Accounts are xxxxxxxx for Covered Beneficiaries;
(h) Accounts for demonstration or promotional equipment,
or in which goods are consigned, or sold on a “sale guaranteed”, “sale or return”, “sale on approval”, or other terms if Account Debtor’s payment may be conditional;
(i) Accounts owing from an Account Debtor where goods or
services have not yet been rendered to the Account Debtor (sometimes called memo xxxxxxxx or pre xxxxxxxx);
(j) Accounts subject to contractual arrangements between
Borrower and an Account Debtor where payments shall be scheduled or due according to completion or fulfillment requirements where the Account Debtor has a right of offset for damages suffered as a result of Borrower’s failure to perform in
accordance with the contract (sometimes called contracts accounts receivable, progress xxxxxxxx, milestone xxxxxxxx, or fulfillment contracts);
(k) Accounts owing from an Account Debtor the amount of
which may be subject to withholding based on the Account Debtor’s satisfaction of Borrower’s complete performance (but only to the extent of the amount withheld; sometimes called retainage xxxxxxxx);
(l) Accounts subject to trust provisions, subrogation
rights of a bonding company, or a statutory trust;
[***]=Certain Confidential Information Omitted
33
(m) Accounts owing from an Account Debtor that has been
invoiced for goods that have not been shipped to the Account Debtor unless Collateral Agent, Borrower, and the Account Debtor have entered into an agreement acceptable to Collateral Agent and Required Lenders in their sole discretion wherein the
Account Debtor acknowledges that (i) it has title to and has ownership of the goods wherever located, (ii) a bona fide sale of the goods has occurred, and (iii) it owes payment for such goods in accordance with invoices from Borrower (sometimes
called “xxxx and hold” accounts);
(n) Accounts for which the Account Debtor has not been
invoiced;
(o) Accounts that represent non trade receivables or that
are derived by means other than in the ordinary course of Borrower’s business;
(p) Accounts arising from chargebacks, debit memos or
others payment deductions taken by an Account Debtor (except to the extent of claims for Covered Beneficiaries being contested in good faith in accordance with Borrower’s normal
practices existing as of the Effective Date as disclosed to Collateral Agent and Lenders);
(q) Accounts arising from product returns and/or
exchanges (sometimes called “warranty” or “RMA” accounts);
(r) Accounts in which the Account Debtor disputes
liability or makes any claim (but only up to the disputed or claimed amount) (except to the extent of claims for Covered Beneficiaries being contested in good faith in accordance with
Borrower’s normal practices existing as of the Effective Date as disclosed to Collateral Agent and Lenders), or if the Account Debtor is subject to an Insolvency Proceeding, or becomes insolvent, or goes out of business;
(s) Accounts owing from an Account Debtor with respect to
which Borrower has received Deferred Revenue, including, without limitation, upfront xxxxxxxx (but only to the extent of such Deferred Revenue), unless otherwise approved by Collateral
Agent and the Required Lenders in writing on a case-by-case basis in its sole discretion;
(t) Accounts owing from an Account Debtor, whose total
obligations to Borrower exceed [***] percent ([***]%) of all Accounts except for Medicare for which such percentage is [***] percent ([***]%), for the amounts that exceed that percentage, unless otherwise approved in writing by Collateral Agent and
Required Lenders in their sole discretion on a case by case basis;
(u) Accounts owing from an Account Debtor that is an
individual;
(v) Accounts for which Collateral Agent and/or Required
Lenders in their good faith business judgment determines collection to be doubtful, including, without limitation, accounts represented by “refreshed” or “recycled” invoices; and
(w) Accounts arising from tests other than Borrower’s Cutaneous Melanoma test, Uveal Melanoma test or any other test approved by Collateral Agent and the Required Lenders in writing on a case-by-case basis in their sole discretion.
“Eligible Assignee” is (i) a Lender, (ii) an Affiliate of a Lender, (iii) an Approved Fund and (iv) any commercial bank, savings and loan association or savings
bank or any other entity which is an “accredited investor” (as defined in Regulation D under the Securities Act of 1933, as amended) and which extends credit or buys loans as one of its businesses, including insurance companies, mutual funds, lease
financing companies and commercial finance companies, in each case, which either (A) has a rating of BBB or higher from Standard & Poor’s Rating Group and a rating of Baa2 or higher from Xxxxx’x Investors Service, Inc. at the date that it
becomes a Lender or (B) has total assets in excess of Five Billion Dollars ($5,000,000,000.00), and in each case of clauses (i) through (iv), which, through its applicable lending office, is capable of lending to Borrower without the imposition of
any withholding or similar taxes; provided that notwithstanding the foregoing, “Eligible Assignee” shall not include, unless an Event of Default has occurred and is continuing, (i) Borrower or any of Borrower’s Affiliates or Subsidiaries or (ii) a
direct competitor of Borrower or a vulture hedge fund, each as determined by Collateral Agent. Notwithstanding the foregoing, (x) in connection with assignments by a Lender due to a forced divestiture at the request of any regulatory agency, the
restrictions set forth herein shall not apply and Eligible Assignee shall mean any Person or party and (y) in connection with a Lender’s own financing or securitization transactions, the restrictions set forth herein shall not apply and Eligible
Assignee shall mean any Person or party providing such financing or formed to undertake such securitization transaction and any transferee of such Person or party upon the occurrence of a default, event of default or similar occurrence with respect
to such financing or securitization transaction; provided that no such sale, transfer, pledge or assignment under this clause (y) shall release such Lender from any of its obligations hereunder or substitute any such Person or party for such Lender
as a party hereto until Collateral Agent shall have received and accepted an effective assignment agreement from such Person or party in form satisfactory to Collateral Agent executed, delivered and fully completed by the applicable parties
thereto, and shall have received such other information regarding such Eligible Assignee as Collateral Agent reasonably shall require.
[***]=Certain Confidential Information Omitted
34
“Eligible CM Accounts” are Eligible Accounts
that arise from Borrower’s Cutaneous Melanoma test.
“Eligible UV Accounts” are Eligible Accounts that
arise from Borrower’s Uveal Melanoma test.
“Equipment” is all “equipment” as defined in
the Code with such additions to such term as may hereafter be made, and includes without limitation all machinery, fixtures, goods, vehicles (including motor vehicles and trailers), and any interest in any of the foregoing.
“ERISA” is the Employee Retirement Income
Security Act of 1974, as amended, and its regulations.
“Existing Indebtedness” is the indebtedness of
Borrower to the Lenders in the aggregate principal outstanding amount as of the Effective Date of approximately $20,663,253.57 pursuant to that certain Loan and Security Agreement, dated March 31, 2017, entered into by and between Collateral Agent,
the Lenders and Borrower.
“Event of Default” is defined in Section 8.
“Final Payment” is a payment (in addition to and not a substitution for the regular monthly payments of principal plus accrued interest) due on the earliest to occur of (a) the Maturity Date, or (b) the acceleration of any Term
Loan, or (c) the prepayment of a Term Loan pursuant to Section 2.2(c) or (d), equal to the original principal amount of such Term Loan multiplied by the Final Payment Percentage, payable to Lenders in accordance with their respective Pro Rata
Shares.
“Final Payment Percentage” is six and three
quarter of one percent (6.75%).
“Foreign Currency” means lawful money of a
country other than the United States.
“Foreign Subsidiary” is a Subsidiary that is
not an entity organized under the laws of the United States or any territory thereof.
“Funding Date” is any date on which a Credit
Extension is made to or on account of Borrower which shall be a Business Day.
“FX Contract” is any foreign exchange contract
by and between Borrower and Bank under which Borrower commits to purchase from or sell to Bank a specific amount of Foreign Currency on a specified date.
“GAAP” is generally accepted accounting
principles set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other
statements by such other Person as may be approved by a significant segment of the accounting profession in the United States, which are applicable to the circumstances as of the date of determination.
35
“General Intangibles” are all “general
intangibles” as defined in the Code in effect on the date hereof with such additions to such term as may hereafter be made, and includes without limitation, all copyright rights, copyright applications, copyright registrations and like protections
in each work of authorship and derivative work, whether published or unpublished, any patents, trademarks, service marks and, to the extent permitted under applicable law, any applications therefor, whether registered or not, any trade secret
rights, including any rights to unpatented inventions, payment intangibles, royalties, contract rights, goodwill, franchise agreements, purchase orders, customer lists, route lists, telephone numbers, domain names, claims, income and other tax
refunds, security and other deposits, options to purchase or sell real or personal property, rights in all litigation presently or hereafter pending (whether in contract, tort or otherwise), insurance policies (including without limitation key man,
property damage, and business interruption insurance), payments of insurance and rights to payment of any kind.
“Governmental Approval” is any consent,
authorization, approval, order, license, franchise, permit, certificate, accreditation, registration, filing or notice, of, issued by, from or to, or other act by or in respect of, any Governmental Authority.
“Governmental Authority” is any nation or
government, any state or other political subdivision thereof, any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative functions
of or pertaining to government, any securities exchange and any self‑regulatory organization.
“Guarantor” is any Person providing a Guaranty
in favor of Collateral Agent.
“Guaranty” is any guarantee of all or any part
of the Obligations, as the same may from time to time be amended, restated, modified or otherwise supplemented.
“Indebtedness” is (a) indebtedness for borrowed
money or the deferred price of property or services, such as reimbursement and other obligations for surety bonds and letters of credit, (b) obligations evidenced by notes, bonds, debentures or similar instruments, (c) capital lease obligations,
and (d) Contingent Obligations.
“Indemnified Person” is defined in Section
12.2.
“Initial Audit” is the Lenders’ inspection of
Borrower’s Accounts, the Collateral, and Borrower’s Books. The Initial Audit was completed by SVB on January 30, 2017.
“Insolvency Proceeding” is any proceeding by or
against any Person under the United States Bankruptcy Code, or any other bankruptcy or insolvency law, including assignments for the benefit of creditors, compositions, extensions generally with its creditors, or proceedings seeking reorganization,
arrangement, or other relief.
“Insolvent” means not Solvent.
“Intellectual Property” means all of Borrower’s
or any Subsidiary’s right, title and interest in and to the following:
(a) its Copyrights, Trademarks and Patents;
(b) any and all trade secrets and trade secret rights,
including, without limitation, any rights to unpatented inventions, know‑how, operating manuals;
(c) any and all source code;
(d) any and all design rights which may be available to
Borrower;
36
(e) any and all claims for damages by way of past,
present and future infringement of any of the foregoing, with the right, but not the obligation, to xxx for and collect such damages for said use or infringement of the Intellectual Property rights identified above; and
(f) all amendments, renewals and extensions of any of the
Copyrights, Trademarks or Patents.
“Inventory” is all “inventory” as defined in
the Code in effect on the date hereof with such additions to such term as may hereafter be made, and includes without limitation all merchandise, raw materials, parts, supplies, packing and shipping materials, work in process and finished products,
including without limitation such inventory as is temporarily out of any Person’s custody or possession or in transit and including any returned goods and any documents of title representing any of the above.
“Investment” is any beneficial ownership
interest in any Person (including stock, partnership interest or other securities), and any loan, advance, payment or capital contribution to any Person.
“Key Person” is each of Borrower’s Chief
Executive Officer, who is Xxxxx Xxxxxxxx as of the Effective Date.
“Lender” is any one of the Lenders.
“Lenders” are the Persons identified on Schedule 1.1 hereto and each assignee that becomes a party to this Agreement pursuant to Section 12.1.
“Lenders’ Expenses” are all audit fees and
expenses, costs, and expenses (including reasonable attorneys’ fees and expenses, as well as appraisal fees, fees incurred on account of lien searches, inspection fees, and filing fees) for preparing, amending, negotiating, administering, defending
and enforcing the Loan Documents (including, without limitation, those incurred in connection with appeals or Insolvency Proceedings) or otherwise incurred by Collateral Agent and/or the Lenders in connection with the Loan Documents.
“Letter of Credit” is a standby or commercial
letter of credit issued by Bank upon request of Borrower based upon an application, guarantee, indemnity, or similar agreement.
“Lien” is a claim, mortgage, deed of trust,
levy, charge, pledge, security interest, or other encumbrance of any kind, whether voluntarily incurred or arising by operation of law or otherwise against any property.
“Liquidity Ratio” is the ratio of (a) Quick
Assets to (b) all of Borrower’s Obligations to Lenders (but specifically excluding any cash-secured Obligations).
“Loan Documents” are, collectively, this
Agreement, the Warrants, the Perfection Certificates, each Compliance Certificate, each Disbursement Letter, each Loan Payment/Advance Request Form and any Bank Services Agreement, any subordination agreements, any note, or notes or guaranties
executed by Borrower or any other Person, and any other present or future agreement entered into by Borrower, any Guarantor or any other Person for the benefit of the Lenders and Collateral Agent in connection with this Agreement; all as amended,
restated, or otherwise modified.
“Loan Payment/Advance Request Form” is that
certain form attached hereto as Exhibit B‑2.
“Material Adverse Change” is (a) a material
impairment in the perfection or priority of Collateral Agent’s Lien in the Collateral or in the value of such Collateral; (b) a material adverse change in the business, operations or condition (financial or otherwise) of Borrower or any Subsidiary;
or (c) a material impairment of the prospect of repayment of any portion of the Obligations.
“Maturity Date” is, for each Term Loan,
November 1, 2022.
“Medicare/Medicaid Receivables Account” is
defined in Section 6.6(c).
37
“Non-Use Fees” means a monthly fee equal to one
half of one percent (0.50%) of the difference between (1) the aggregate Revolving Line Commitments, and (2) the average outstanding principal balance of the Revolving Advances during the applicable month, which fee shall be payable monthly in
arrears and shall be nonrefundable.
“Obligations” are all of Borrower’s obligations
to pay when due any debts, principal, interest, Lenders’ Expenses, the Prepayment Fee, the Final Payment, the Early Termination Fee, the Non-Use Fees, the facility fees and other amounts Borrower owes the Lenders now or later, in connection with,
related to, following, or arising from, out of or under, this Agreement or, the other Loan Documents (other than the Warrants), or otherwise, including, without limitation, all obligations relating to letters of credit (including reimbursement
obligations for drawn and undrawn letters of credit), cash management services, and foreign exchange contracts, if any, and including interest accruing after Insolvency Proceedings begin (whether or not allowed) and debts, liabilities, or
obligations of Borrower assigned to the Lenders and/or Collateral Agent, and the performance of Borrower’s duties under the Loan Documents (other than the Warrants).
“OFAC” is the U.S. Department of Treasury
Office of Foreign Assets Control.
“OFAC Lists” are, collectively, the Specially
Designated Nationals and Blocked Persons List maintained by OFAC pursuant to Executive Order No. 13224, 66 Fed. Reg. 49079 (Sept. 25, 2001) and/or any other list of terrorists or other restricted Persons maintained pursuant to any of the rules and
regulations of OFAC or pursuant to any other applicable Executive Orders.
“Operating Documents” are, for any Person, such
Person’s formation documents, as certified by the Secretary of State (or equivalent agency) of such Person’s jurisdiction of organization on a date that is no earlier than thirty (30) days prior to the Effective Date, and, (a) if such Person is a
corporation, its bylaws in current form, (b) if such Person is a limited liability company, its limited liability company agreement (or similar agreement), and (c) if such Person is a partnership, its partnership agreement (or similar agreement),
each of the foregoing with all current amendments or modifications thereto.
“Overadvance” is defined in Section 2.3(c).
“Patents” means all patents, patent
applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part of the same.
“Payment Date” is the first (1st) calendar day of each calendar month, commencing on January 1, 2019.
“Perfection Certificate” and “Perfection Certificates” is defined in Section 5.1.
“Permitted Indebtedness” is:
(a) Borrower’s Indebtedness to the Lenders and Collateral
Agent under this Agreement and the other Loan Documents;
(b) Indebtedness existing on the Effective Date and
disclosed on the Perfection Certificate(s);
(c) Subordinated Debt;
(d) unsecured Indebtedness to trade creditors incurred in
the ordinary course of business;
(e) Indebtedness consisting of capitalized lease
obligations and purchase money Indebtedness, in each case incurred by Borrower or any of its Subsidiaries to finance the acquisition, repair, improvement or construction of fixed or capital assets of such person, provided that (i) the aggregate
outstanding principal amount of all such Indebtedness does not exceed [***] Dollars ($[***]) at any time and (ii) the principal amount of such Indebtedness does not exceed the lower of the cost or fair market value of the property so acquired or
built or of such repairs or improvements financed with such Indebtedness (each measured at the time of such acquisition, repair, improvement or construction is made); furthermore, notwithstanding anything to the contrary herein and strictly for the
purposes of this clause (e) of this definition of Permitted Indebtedness and for no other purpose, any obligations of a Person that are or would have been treated as operating leases for purposes of GAAP prior to the issuance by the Financial
Accounting Standards Board on February 25, 2016 of an Accounting Standards Update (the “ASU”) shall continue to be accounted for as operating leases for purposes of this clause (e) of this definition of Permitted Indebtedness (whether or not such
operating lease obligations were in effect on such date) notwithstanding the fact that such obligations are required in accordance with the ASU (on a prospective or retroactive basis or otherwise) to be treated as capitalized lease obligations in
accordance with GAAP;
[***]=Certain Confidential Information Omitted
38
(f) unsecured credit card Indebtedness not to exceed
[***] Dollars ($[***]);
(g) Indebtedness incurred as a result of endorsing
negotiable instruments received in the ordinary course of Borrower’s business;
(h) other Indebtedness not to exceed [***] Dollars ($[***]) outstanding at any time; and
(i) extensions, refinancings, modifications, amendments
and restatements of any items of Permitted Indebtedness (a) through (e) above, provided that the principal amount thereof is not increased or the terms thereof are not modified to impose materially more burdensome terms upon Borrower, or its
Subsidiary, as the case may be.
“Permitted Investments” are:
(a) Investments disclosed on the Perfection
Certificate(s) and existing on the Effective Date;
(b) (i) Investments consisting of cash and Cash
Equivalents, and (ii) any other Investments permitted by Borrower’s investment policy, as amended from time to time, provided that such investment policy (and any such amendment thereto) has been approved in writing by Collateral Agent;
(c) Investments consisting of the endorsement of
negotiable instruments for deposit or collection or similar transactions in the ordinary course of Borrower;
(d) Investments consisting of deposit accounts and
securities accounts in which Collateral Agent has a perfected security interest to the extent such perfected security interest is required under Section 6.5(b);
(e) Investments in connection with Transfers permitted by
Section 7.1;
(f) Investments consisting of (i) travel advances and
employee relocation loans and other employee loans and advances in the ordinary course of business, and (ii) loans to employees, officers or directors relating to the purchase of equity securities of Borrower or its Subsidiaries pursuant to
employee stock purchase plans or agreements approved by Borrower’s Board of Directors; not to exceed [***] Dollars ($[***]) in the aggregate for (i) and (ii) in any fiscal year;
(g) Investments (including debt obligations) received in
connection with the bankruptcy or reorganization of customers or suppliers and in settlement of delinquent obligations of, and other disputes with, customers or suppliers arising in the ordinary course of business;
(h) Investments consisting of notes receivable of, or
prepaid royalties and other credit extensions, to customers and suppliers who are not Affiliates, in the ordinary course of business; provided that this paragraph (h) shall not apply to Investments of Borrower in any Subsidiary;
[***]=Certain Confidential Information Omitted
39
(i) Investments in joint ventures or strategic alliances
in the ordinary course of Borrower’s business consisting of the non‑exclusive licensing of technology, the development of technology or the providing of technical support; provided that any cash investments by Borrower do not exceed [***] Dollars
($[***]) in the aggregate in any fiscal year; and
(j) other Investments in an aggregate amount not to
exceed [***] Dollars ($[***]) in any fiscal year.
“Permitted Licenses” are (A) licenses of
over-the-counter software that is commercially available to the public, and (B) non‑exclusive and exclusive licenses for the use of the Intellectual Property of Borrower or any of its Subsidiaries entered into in the ordinary course of business, provided, that, with respect to each such license described in clause (B), (i) no Event of Default has occurred or is continuing at the time of such license; (ii) the license
constitutes an arms‑length transaction, the terms of which, on their face, do not provide for a sale or assignment of any Intellectual Property and do not restrict the ability of Borrower or any of its Subsidiaries, as applicable, to pledge, grant
a security interest in or lien on, or assign or otherwise Transfer any Intellectual Property; (iii) in the case of any exclusive license, (x) Borrower delivers ten (10) days’ prior written notice and a brief summary of the terms of the proposed
license to Collateral Agent and the Lenders and delivers to Collateral Agent and the Lenders copies of the final executed licensing documents in connection with the exclusive license promptly upon consummation thereof, and (y) any such license
could not result in a legal transfer of title of the licensed property but may be exclusive in respects other than territory and may be exclusive as to territory only as to discrete geographical areas outside of the United States; and (iv) all
upfront payments, royalties, milestone payments or other proceeds arising from the licensing agreement that are payable to Borrower or any of its Subsidiaries are paid to a Deposit Account that is governed by a Control Agreement.
“Permitted Liens” are:
(a) Liens existing on the Effective Date and disclosed on
the Perfection Certificates or arising under this Agreement and the other Loan Documents;
(b) Liens for taxes, fees, assessments or other
government charges or levies, either (i) not due and payable or (ii) being contested in good faith and for which Borrower maintains adequate reserves on its Books, provided that no notice of any such Lien has been filed or recorded under the
Internal Revenue Code of 1986, as amended, and the Treasury Regulations adopted thereunder;
(c) liens securing Indebtedness permitted under clause
(e) of the definition of “Permitted Indebtedness,” provided that (i) such liens exist prior to the acquisition of, or attach substantially simultaneous with,
or within twenty (20) days after the, acquisition, lease, repair, improvement or construction of, such property financed or leased by such Indebtedness and (ii) such liens do not extend to any property of Borrower other than the property (and
proceeds thereof) acquired, leased or built, or the improvements or repairs, financed by such Indebtedness;
(d) Liens of carriers, warehousemen, suppliers, or other
Persons that are possessory in nature arising in the ordinary course of business so long as such Liens attach only to Inventory, securing liabilities in the aggregate amount not to exceed [***] Dollars ($[***]), and which are not delinquent or
remain payable without penalty or which are being contested in good faith and by appropriate proceedings which proceedings have the effect of preventing the forfeiture or sale of the property subject thereto;
(e) Liens to secure payment of workers’ compensation,
employment insurance, old‑age pensions, social security and other like obligations incurred in the ordinary course of business (other than Liens imposed by ERISA);
(f) Liens incurred in the extension, renewal or
refinancing of the indebtedness secured by Liens described in (a) through (c), but any extension, renewal or replacement Lien must be limited to the property encumbered
by the existing Lien and the principal amount of the indebtedness may not increase;
[***]=Certain Confidential Information Omitted
40
(g) leases or subleases of real property granted in the
ordinary course of Borrower’s business (or, if referring to another Person, in the ordinary course of such Person’s business), and leases, subleases, non‑exclusive licenses or sublicenses of personal property (other than Intellectual Property)
granted in the ordinary course of Borrower’s business (or, if referring to another Person, in the ordinary course of such Person’s business), if the leases, subleases, licenses and sublicenses do not prohibit granting Collateral Agent or any Lender
a security interest therein;
(h) banker’s liens, rights of setoff and Liens in favor
of financial institutions incurred in the ordinary course of business arising in connection with Borrower’s deposit accounts or securities accounts held at such institutions solely to secure payment of fees and similar costs and expenses and
provided such accounts are maintained in compliance with Section 6.6(b) hereof;
(i) Liens arising from judgments, decrees or attachments
in circumstances not constituting an Event of Default under Section 8.4 or 8.7;
(j) Liens consisting of Permitted Licenses; and
(k) deposits to secure the performance of leases incurred
in the ordinary course of business and not representing an obligation for borrowed money in the aggregate amount not to exceed [***] Dollars ($[***]).
“Person” is any individual, sole
proprietorship, partnership, limited liability company, joint venture, company, trust, unincorporated organization, association, corporation, institution, public benefit corporation, firm, joint stock company, estate, entity or government agency.
“Prepayment Fee” is, with respect to any Term
Loan subject to prepayment prior to the Maturity Date, whether by mandatory or voluntary prepayment, acceleration or otherwise, an additional fee payable to the Lenders in amount equal to:
(i) for a prepayment made on or after the Funding Date
of such Term Loan through and including the first anniversary of the Funding Date of such Term Loan, two and one-half percent (2.50%) of the principal amount of such Term Loan prepaid;
(ii) for a prepayment made after the date which is after
the first anniversary of the Funding Date of such Term Loan through and including the second anniversary of the Funding Date of such Term Loan, one and one-half percent (1.50%) of the principal amount of the Term Loans prepaid; and
(iii) for a prepayment made after the date which is
after the second anniversary of the Funding Date of such Term Loan and prior to the Maturity Date, three quarters of one percent (0.75%) of the principal amount of the Term Loans prepaid.
“Pro Rata Share” is, as of any date of
determination, with respect to each Lender, a percentage (expressed as a decimal, rounded to the ninth decimal place) determined by dividing the outstanding principal amount of Term Loans held by such Lender by the aggregate outstanding principal
amount of all Term Loans.
“Quick Assets” is, on any date, the sum of (a) Borrower’s unrestricted cash and Cash Equivalents maintained with Bank, plus (b) [***] percent ([***]%) of Borrower’s gross accounts receivable (less reserves for bad debt).
“Registered Organization” is any “registered
organization” as defined in the Code with such additions to such term as may hereafter be made.
“Required Lenders” means (i) for so long as all
of the Persons that are Lenders on the Effective Date (each an “Original Lender”) have not assigned or transferred any of their interests in their Term Loans
or their Revolving Line Commitment, Lenders holding one hundred percent (100%) of the aggregate outstanding principal balance of the Term Loans and the aggregate Revolving Line Commitments, or (ii) at any time from and after any Original Lender has
assigned or transferred any interest in its Term Loans or its Revolving Line Commitment, Lenders holding at least sixty six percent (66%) of the aggregate outstanding principal balance of the Term Loans and Lenders holding at least sixty six
percent (66%) of the aggregate Revolving Line Commitments and, in respect of this clause (ii), (A) each Original Lender that has not assigned or transferred any portion of its Term Loans or Revolving Line Commitment, (B) each assignee or transferee
of an Original Lender’s interest in the Term Loans or Revolving Line Commitment, but only to the extent that such assignee or transferee is an Affiliate or Approved Fund of such Original Lender, and (C) any Person providing financing to any Person
described in clauses (A) and (B) above; provided, however, that this clause (C) shall only apply upon the occurrence of a default, event of default or similar occurrence with respect to such financing.
[***]=Certain Confidential Information Omitted
41
“Requirement of Law” is as to any Person, the
organizational or governing documents of such Person, and any law (statutory or common), treaty, rule or regulation or determination of an arbitrator or a court or other Governmental Authority, in each case applicable to or binding upon such Person
or any of its property or to which such Person or any of its property is subject.
“Reserves” means, as of any date of
determination, such amounts as Collateral Agent may from time to time establish and revise in its good faith business judgment, reducing the amount of Advances and other financial accommodations which would otherwise be available to Borrower (a) to
reflect events, conditions, contingencies or risks which, as determined by Collateral Agent in its good faith business judgment, do or may adversely affect (i) the Collateral or any other property which is security for the Obligations or its value
(including without limitation any increase in delinquencies of Accounts), (ii) the business, operations or condition (financial or otherwise) of Borrower or any Guarantor, or (iii) the security interests and other rights of Collateral Agent in the
Collateral (including the enforceability, perfection and priority thereof); or (b) to reflect Collateral Agent’s reasonable belief that any collateral report or financial information furnished by or on behalf of Borrower or any Guarantor to the
Lenders is or may have been incomplete, inaccurate or misleading in any material respect; or (c) in respect of any state of facts which Collateral Agent determines constitutes an Event of Default or may, with notice or passage of time or both,
constitute an Event of Default.
“Responsible Officer” is any of the President,
Chief Executive Officer, or Chief Financial Officer of Borrower acting alone.
“Revolving Advance” or “Revolving Advances” means an advance (or advances) under the Revolving Line.
“Revolving Line” means a Revolving Advance or
Revolving Advances of up to Five Million Dollars ($5,000,000.00).
“Revolving Line Commitment” is, for any Lender,
the obligation of such Lender to make a Revolving Advance, up to the principal amount shown on Schedule 1.1. “Revolving Line Commitments” means the aggregate amount of such commitments of all Lenders.
“Revolving Line Commitment Percentage” is set
forth on Schedule 1.1, as amended from time to time.
“Revolving Line Maturity Date” is the date that
is two (2) years after the Effective Date.
“Revolving Line Priority Collateral” means all
now owned or hereafter acquired Collateral that consists of (i) Accounts (including health‑care receivables); (ii) Inventory; (iii) chattel paper (whether tangible or electronic); and (iv) all Books relating to the foregoing, and any and all
claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoing.
“Secured Promissory Note” is defined in Section
2.5.
42
“Secured Promissory Note Record” is a record
maintained by each Lender with respect to the outstanding Obligations owed by Borrower to Lender and credits made thereto.
“Securities Account” is any “securities
account” as defined in the Code with such additions to such term as may hereafter be made.
“Subject Month” is the month which is [***] ([***]) calendar months after any Testing Month.
“Solvent” is, with respect to any Person: the
fair salable value of such Person’s consolidated assets (including goodwill minus disposition costs) exceeds the fair value of such Person’s liabilities; such Person is not left with unreasonably small capital after the transactions in this
Agreement; and such Person is able to pay its debts (including trade debts) as they mature.
“Streamline Period” means, for any Subject Month, that Borrower maintained a Liquidity Ratio equal to or greater than [***] to [***] at all times during the applicable Testing Month; provided, however, that if an Event of Default has occurred and is
continuing then any Streamline Period shall immediately terminate. If Borrower is transitioning from not being in a Streamline Period to being in a Streamline Period then Borrower must (a) maintain a Liquidity Ratio of not less than [***] to [***] for [***] ([***]) consecutive months (unless Borrower’s Liquidity Ratio increased to [***] to [***] as a result of Borrower’s consummation of a bona fide equity financing event, in which case only [***] is required) and (b) deliver a
current Borrowing Base Certificate to Bank, prior to the commencement of a Streamline Period.
“Subordinated Debt” is indebtedness incurred by
Borrower or any of its Subsidiaries subordinated to all Indebtedness of Borrower and/or its Subsidiaries to the Lenders (pursuant to a subordination, intercreditor, or other similar agreement in form and substance satisfactory to Collateral Agent
and the Lenders entered into between Collateral Agent, Borrower, and/or any of its Subsidiaries, and the other creditor), on terms acceptable to Collateral Agent and the Lenders.
“Subsidiary” is, with respect to any Person,
any Person of which more than fifty percent (50%) of the voting stock or other equity interests (in the case of Persons other than corporations) is owned or controlled, directly or indirectly, by such Person or through one or more intermediaries.
“Term Loan” is defined in Section 2.2(a)
hereof.
“Term Loan Commitment” is, for any Lender, the
obligation of such Lender to make a Term Loan, up to the principal amount shown on Schedule 1.1. “Term Loan Commitments” means the aggregate amount of such commitments of all Lenders.
“Term Loan Commitment Percentage” is set forth
in Schedule 1.1, as amended from time to time.
“Term Loan Priority Collateral” is all now
owned or hereafter acquired Collateral which does not consist of Revolving Line Priority Collateral.
“Testing Month” is any month with respect to which Collateral Agent and Lenders have
tested Borrower’s Liquidity Ratio to determine whether a Streamline Period is in effect.
“Trademarks” means any trademark and
servicemark rights, whether registered or not, applications to register and registrations of the same and like protections, and the entire goodwill of the business of Borrower connected with and symbolized by such trademarks.
“Transfer” is defined in Section 7.1.
“Warrants” are those certain Warrants to
Purchase Stock dated as of March 31 2017, the Effective Date, or any date thereafter, issued by Borrower in favor of each Lender or such Lender’s Affiliates.
[***]=Certain Confidential Information Omitted
43
[Balance of Page Intentionally Left Blank]
44
IN WITNESS WHEREOF, the parties hereto have
caused this Agreement to be executed as of the Effective Date.
|
BORROWER:
|
||
|
CASTLE BIOSCIENCES, INC.
|
||
|
By
|
/s/ Xxxxx Xxxxxx
|
|
|
Name:
|
Xxxxx Xxxxxx
|
|
|
Title
|
Chief Financial Officer
|
|
|
COLLATERAL AGENT AND LENDER:
|
||
|
OXFORD FINANCE LLC
|
||
|
By
|
/s/ Xxxxxxx X. Feathelry
|
|
|
Name:
|
Xxxxxxx X. Feathelry
|
|
|
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 Loans
|
||
|
Lender
|
Term Loan Commitment
|
Term Loan Commitment Percentage
|
|
OXFORD FINANCE LLC
|
$10,000,000.00
|
50.00%
|
|
SILICON VALLEY BANK
|
$10,000,000.00
|
50.00%
|
|
TOTAL
|
$20,000,000.00
|
100.00%
|
|
Aggregate (all Term Loans)
|
||
|
Lender
|
Term Loan Commitment
|
Term Loan Commitment Percentage
|
|
OXFORD FINANCE LLC
|
$10,000,000.00
|
50.00%
|
|
SILICON VALLEY BANK
|
$10,000,000.00
|
50.00%
|
|
TOTAL
|
$20,000,000.00
|
100.00%
|
|
Revolving Line
|
||
|
Lender
|
Revolving Line Commitment
|
Revolving Line Commitment Percentage
|
|
OXFORD FINANCE LLC
|
$2,500,000.00
|
50.00%
|
|
SILICON VALLEY BANK
|
$2,500,000.00
|
50.00%
|
|
TOTAL
|
$5,000,000.00
|
100.00%
|
EXHIBIT A
Description of Collateral
The Collateral consists of all of Borrower’s right, title and interest in and to the following personal property:
All goods, Accounts (including health‑care receivables), Equipment, Inventory, contract rights or rights to payment of money, leases,
license agreements, franchise agreements, General Intangibles (except as noted below), commercial tort claims, documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts and other
Collateral Accounts, all certificates of deposit, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), securities, and all other investment property, supporting obligations, and financial assets,
whether now owned or hereafter acquired, wherever located; and
All Borrower’s Books relating to the foregoing, and any and all claims, rights and interests in any of the above and all substitutions
for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoing.
Notwithstanding the foregoing, the Collateral does not include (i) any Intellectual Property; provided, however, the Collateral shall
include all Accounts and all proceeds of Intellectual Property. If a judicial authority (including a U.S. Bankruptcy Court) would hold that a security interest in the underlying Intellectual Property is necessary to have a security interest in
such Accounts and such property that are proceeds of Intellectual Property, then the Collateral shall automatically, and effective as of the Effective Date, include the Intellectual Property to the extent necessary to permit perfection of
Collateral Agent’s security interest in such Accounts and such other property of Borrower that are proceeds of the Intellectual Property; (ii) more than [***]% of the total combined voting power of all classes of stock entitled to vote the shares
of capital stock (the “Shares”) of any Foreign Subsidiary, if Borrower demonstrates to Collateral Agent’s reasonable satisfaction that a pledge of more than [***] percent ([***]%) of the Shares of such Subsidiary creates a present and existing
adverse tax consequence to Borrower under the U.S. Internal Revenue Code; (iii) any license, contract or interest of Borrower as a lessee under an Equipment lease, in each case if the granting of a Lien in such license, contract or lease is
prohibited by or would constitute a default under the agreement governing such license, contract or lease (but (A) only to the extent such prohibition is enforceable under applicable law and (B) other than to the extent that any such term would be
rendered ineffective pursuant to Sections 9-406, 9-408 or 9-409 (or any other Section) of Division 9 of the Code); provided that upon the termination, lapsing or expiration of any such prohibition, such license, contract or lease, as applicable,
shall automatically be subject to the security interest granted in favor of Collateral Agent hereunder and become part of the “Collateral”; and (iv) any Medicare/Medicaid Receivables
Account
Pursuant to the terms of a certain negative pledge arrangement with Collateral Agent and the Lenders, Borrower has agreed not to
encumber any of its Intellectual Property.
[***]=Certain Confidential Information Omitted
EXHIBIT B‑1
Form of Disbursement Letter
[see attached]
DISBURSEMENT LETTER
[DATE]
The undersigned, being the duly elected and acting _______________________ of CASTLE BIOSCIENCES, INC., a Delaware Corporation with offices located at 000
Xxxxx Xxxxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxxx, XX 00000 (“Borrower”), does hereby certify to OXFORD FINANCE LLC (“Oxford” and “Lender”),
as collateral agent (the “Collateral Agent”) in connection with that certain Loan and Security Agreement dated as of November __, 2018, by and among Borrower,
Collateral Agent and the Lenders from time to time party thereto (the “Loan Agreement”; with other capitalized terms used below having the meanings ascribed
thereto in the Loan Agreement) that:
1. The representations and warranties made by Borrower in
Section 5 of the Loan Agreement and in the other Loan Documents are true and correct in all material respects as of the date hereof.
2. No event or condition has occurred that would
constitute an Event of Default under the Loan Agreement or any other Loan Document.
3. Borrower is in compliance with the covenants and
requirements contained in Sections 4, 6 and 7 of the Loan Agreement.
4. All conditions referred to in Section 3 of the Loan
Agreement to the making of the Loan to be made on or about the date hereof have been satisfied or waived by Collateral Agent.
5. No Material Adverse Change has occurred.
6. The undersigned is a Responsible Officer.
[Balance of Page Intentionally Left Blank]
7. The proceeds of the Term Loan shall be disbursed as
follows:
|
Disbursement from Oxford:
|
|
|
Loan Amount
|
$10,000,000.00
|
|
Plus:
|
|
|
‑‑Deposit Received
|
$25,000.00
|
|
Less:
|
|
|
‑‑Existing Debt Payoff to be remitted to Oxford per the Payoff Letter Dated November__, 2018
|
($[________])
|
|
‑‑Interim Interest
|
($_______)
|
|
‑‑Lender’s Legal Fees
|
($[________])*
|
|
Net Proceeds due from Oxford:
|
$[__________]
|
|
Disbursement from SVB:
|
|
|
Loan Amount
|
$10,000,000.00
|
|
Less:
|
|
|
‑‑Existing Debt Payoff to be remitted to Oxford per the Payoff Letter Dated November __, 2018
|
($[________])
|
|
‑‑Interim Interest
|
($_________)
|
|
Net Proceeds due from SVB:
|
$[__________]
|
|
TOTAL TERM LOAN NET PROCEEDS FROM LENDERS
|
$[___________]
|
8. The Term Loan shall amortize in accordance with the
Amortization Table attached hereto.
9. The aggregate net proceeds of the Term Loans shall be
transferred to the Designated Deposit Account as follows:
|
Account Name:
|
Castle Biosciences, Inc.
|
|
Bank Name:
|
Silicon Valley Bank
|
|
Bank Address:
|
0000 Xxxxxx Xxxxx
Xxxxx Xxxxx, Xxxxxxxxxx 00000
|
|
Account Number:
|
____________________________________
|
|
ABA Number:
|
000000000
|
[Balance of Page Intentionally Left Blank]
* Legal fees and costs are through the Effective Date. Post‑closing legal fees and costs, payable after the Effective Date, to be invoiced and paid
post‑closing.
Dated as of the date first set forth above.
|
BORROWER:
|
||
|
CASTLE BIOSCIENCES, INC.
|
||
|
By
|
||
|
Name:
|
||
|
Title:
|
||
|
COLLATERAL AGENT AND LENDER:
|
||
|
OXFORD FINANCE LLC
|
||
|
By
|
||
|
Name:
|
||
|
Title:
|
||
|
LENDER:
|
||
|
SILICON VALLEY BANK
|
||
|
By
|
||
|
Name:
|
||
|
Title:
|
||
[Signature Page to Disbursement Letter]
AMORTIZATION TABLE
(Term Loan)
[see attached]
EXHIBIT B‑2
Loan Payment/Advance Request Form
Loan Payment/Advance Request Form
DEADLINE FOR SAME DAY PROCESSING IS NOON EASTERN TIME*
|
Fax To:
|
Date:
|
|
|
Loan Payment:
|
||
|
CASTLE BIOSCIENCES, INC.
|
||
|
From Account #________________________________
(Deposit Account #)
|
To Account #____________________________________________
(Loan Account #)
|
|
|
Principal $_____________________________________
|
and/or Interest $__________________________________________
|
|
|
Authorized Signature: ___________________________
|
Phone Number:__________________________________________
|
|
|
Print Name/Title: _______________________________
|
||
|
Loan Advance:
|
||
|
Complete Outgoing Wire Request section below if all or
a portion of the funds from this loan advance are for an outgoing wire.
|
||
|
From Account #_________________________________
(Loan Account #)
|
To Account #____________________________________________
(Deposit Account #)
|
|
|
Amount of Advance $____________________________
|
||
|
All Borrower’s representations and warranties in the Loan and Security Agreement are true, correct and complete in all material respects on the
date of the request for an advance; provided, however, that 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
provided, further that those representations and warranties expressly referring to a specific date shall be true, accurate and complete in all material respects as of such
date:
|
||
|
Authorized Signature: ___________________________
|
Phone Number: __________________________________________
|
|
|
Print Name/Title: _______________________________
|
||
|
Outgoing Wire Request:
|
||
|
Complete only if all or a portion of funds from the loan advance above is to be wired.
|
||
|
Deadline for same day processing is noon, Eastern Time
|
||
|
Beneficiary Name: ______________________________
|
Amount of Wire: $_______________________________________
|
|
|
Beneficiary Bank: _______________________________
|
Account Number: _______________________________________
|
|
|
City and State: _________________________________
|
||
|
Beneficiary Bank Transit (ABA) #: _________________
|
Beneficiary Bank Code (Swift, Sort, Chip, etc.): _______________
|
|
|
(For International Wire Only)
|
||
|
Intermediary Bank: ______________________________
|
Transit (ABA) #: ________________________________________
|
|
|
For Further Credit to: ____________________________
|
||
|
Special Instruction:
|
||
|
By signing below, I (we) acknowledge and agree that my (our) funds transfer request shall be processed in accordance with and
subject to the terms and conditions set forth in the agreements(s) covering funds transfer service(s), which agreements(s) were previously received and executed by me (us).
|
||
|
Authorized Signature: ___________________________
|
2nd Signature (if required): ________________________________
|
|
|
Print Name/Title: _______________________________
|
Print Name/Title: ________________________________________
|
|
|
Telephone #: ___________________________________
|
Telephone #: ___________________________________________
|
|
EXHIBIT C
Compliance Certificate
|
TO:
|
OXFORD FINANCE LLC, as Collateral Agent and Lender
SILICON VALLEY BANK, as Lender
|
|
FROM:
|
CASTLE BIOSCIENCES, INC.
|
The undersigned authorized officer (“Officer”) of CASTLE
BIOSCIENCES, INC. (“Borrower”), hereby certifies that in accordance with the terms and conditions of the Loan and Security Agreement by and among Borrower,
Collateral Agent, and the Lenders from time to time party thereto (the “Loan Agreement;” capitalized terms used but not otherwise defined herein shall have the
meanings given them in the Loan Agreement),
(a) Borrower is in complete compliance for the period
ending _______________ with all required covenants except as noted below;
(b) There are no Events of Default, except as noted
below;
(c) Except as noted below, all representations and
warranties of Borrower stated in the Loan Documents are true and correct in all material respects on this date and for the period described in (a), above; provided, however, that 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 provided, further that those representations and warranties expressly referring to a specific date shall be true, accurate and complete in
all material respects as of such date.
(d) Borrower, and each of Borrower’s Subsidiaries, has
timely filed all required tax returns and reports, or obtain extensions thereof, Borrower, and each of Borrower’s Subsidiaries, has timely paid all foreign, federal, state, and local taxes, assessments, deposits and contributions owed by Borrower,
or Subsidiary, except as otherwise permitted pursuant to the terms of Section 5.8 of the Loan Agreement;
(e) No Liens have been levied or claims made against
Borrower or any of its Subsidiaries relating to unpaid employee payroll or benefits of which Borrower has not previously provided written notification to Collateral Agent and the Lenders.
Attached are the required documents, if any, supporting our certification(s). The Officer, on behalf of Borrower, further certifies that the attached
financial statements are prepared in accordance with Generally Accepted Accounting Principles (GAAP) and are consistently applied from one period to the next except as explained in an accompanying letter or footnotes and except, in the case of
unaudited financial statements, for the absence of footnotes and subject to year‑end audit adjustments as to the interim financial statements.
Please indicate compliance status since the last Compliance Certificate by circling Yes, No, or N/A under “Complies” column.
|
Reporting Covenant
|
Requirement
|
Actual
|
Complies
|
|||
|
1)
|
Financial statements
|
Monthly within 30 days
|
Yes
|
No
|
N/A
|
|
|
2)
|
Annual (CPA Audited) statements
|
Within 120 days after FYE
|
Yes
|
No
|
N/A
|
|
|
3)
|
Annual Financial Projections/Budget
(prepared on a monthly basis)
|
Annually (within earlier of 30 days of FYE or 7 Business Days of approval by Board), and when revised
|
Yes
|
No
|
N/A
|
|
|
4)
|
A/R & A/P agings
|
Monthly within 30 days when Revolving Advances are outstanding, and with each request for a Revolving Advance
|
Yes
|
No
|
N/A
|
|
|
5)
|
Transaction Reports
|
(i) If a Streamline Period is in
effect, monthly within 30 days and
(ii) if a Streamline Period is not in
effect, weekly by Friday
|
||||
|
6)
|
8‑K, 10‑K and 10‑Q Filings
|
If applicable, within 5 days of filing
|
Yes
|
No
|
N/A
|
|
|
7)
|
Security Holder reports and notices
|
Within 5 days of delivery
|
Yes
|
No
|
N/A
|
|
|
8)
|
Compliance Certificate
|
Monthly within 30 days
|
Yes
|
No
|
N/A
|
|
|
9)
|
IP Report
|
When required
|
Yes
|
No
|
N/A
|
|
|
10)
|
Total amount of Borrower’s cash and cash equivalents at the last day of the measurement period
|
$________
|
Yes
|
No
|
N/A
|
|
|
11)
|
Total amount of Borrower’s Subsidiaries’ cash and cash equivalents at the last day of the measurement period
|
$________
|
Yes
|
No
|
N/A
|
Deposit and Securities Accounts
(Please list all accounts; attach separate sheet if additional space needed)
|
Institution Name
|
Account Number
|
New Account?
|
Account Control Agreement in place?
|
|||
|
1)
|
Yes
|
No
|
Yes
|
No
|
||
|
2)
|
Yes
|
No
|
Yes
|
No
|
||
|
3)
|
Yes
|
No
|
Yes
|
No
|
||
|
4)
|
Yes
|
No
|
Yes
|
No
|
||
Financial Covenants
|
Covenant
|
|
Requirement
|
Actual
|
Compliance
|
|
|
Minimum Revenues
(trailing six months)
|
Trailing
6-month
period ending
10/31/2018
11/30/2018
12/31/2018
[Thereafter, at least 80% of projections]
|
Minimum trailing
6 months revenue
([***]% of plan)
$[_______]
$[_______]
$[_______]
|
[__%]
|
Yes
|
No
|
|
|
[$_________]
|
[$________]
|
|
|
|
[***]=Certain Confidential Information Omitted
|
Streamline Trigger
|
Required
|
Actual
|
Streamline Period
|
|
Liquidity Ratio* for Prior [***] Months
|
[***] | ________:1.00 |
Yes No
|
Other Matters
|
1)
|
Have there been any changes in management since the last Compliance Certificate?
|
Yes
|
No
|
|
2)
|
Have there been any transfers/sales/disposals/retirement of Collateral or IP prohibited by the Loan Agreement?
|
Yes
|
No
|
|
3)
|
Have there been any new or pending claims or causes of action against Borrower that
involve more than [***] Dollars ($[***])?
|
Yes
|
No
|
|
4)
|
Have there been any amendments of or other changes to the capitalization table of Borrower and to the Operating Documents of Borrower or any of its
Subsidiaries? If yes, provide copies of any such amendments or changes with this Compliance Certificate.
|
Yes
|
No
|
[***]=Certain Confidential Information Omitted
Exceptions
Please explain any exceptions with respect to the certification above: (If no exceptions exist, state “No exceptions.” Attach separate sheet if additional
space needed.)
CASTLE BIOSCIENCES, INC.
|
By
|
||
|
Name:
|
||
|
Title:
|
Date:
|
LENDER USE ONLY
|
|||||
|
Received by:
|
Date:
|
||||
|
Verified by:
|
Date:
|
||||
|
Compliance Status: Yes No
|
|||||
Schedule 1 to Compliance Certificate
Financial Calculations of Borrower
In the event of a conflict between this Schedule and the Loan Agreement, the terms of the Loan Agreement shall
govern.
Dated: ___________________
| I. |
Liquidity Ratio (This is not a financial covenant but is used ONLY to determine
Streamline Period applicability.)
|
Required: [***]
Actual:
|
A.
|
Aggregate value of the unrestricted cash and Cash Equivalents of Borrower maintained with Bank
|
$ ______
|
||
|
B.
|
Aggregate value of Borrower’s gross accounts receivable (less reserves for bad debt)
|
$ ______
|
||
|
C.
|
[***]% of line B
|
$ ______
|
||
|
D.
|
Quick Assets (the sum of lines A and C)
|
$ ______
|
||
|
E.
|
Aggregate value of Term Loan Obligations to the Lenders
|
$ ______
|
||
|
F.
|
Aggregate value of Revolving Line Obligations
|
$ ______
|
||
|
G.
|
Aggregate value of all other non-cash secured obligation to the Lenders
|
$ ______
|
||
|
H.
|
Aggregate value of Obligations to the Lenders (the sum of lines E through G)
|
$ ______
|
||
|
I.
|
Liquidity Ratio (line D divided by line H)
|
_____:1.00
|
||
Was line I equal to or greater than [***] at all times during the applicable Testing Month?
____ No: Not Streamline Period eligible
____ Yes: Streamline Period eligible*
* If Borrower is transitioning from not being in a Streamline Period to
being in a Streamline Period then Borrower must maintain a Liquidity Ratio ≥ [***] for [***] consecutive
months (unless Borrower’s Liquidity Ratio reached [***] as a result of Borrower’s consummation of a bona fide equity financing event).
[***]=Certain Confidential Information Omitted
EXHIBIT D
Form of Secured Promissory Note
[see attached]
SECURED PROMISSORY NOTE
([Revolving Line][Term Loan])
|
$____________________
|
Dated: [DATE]
|
FOR VALUE RECEIVED, the undersigned, CASTLE BIOSCIENCES, INC., a Delaware corporation with offices located at [820 Xxxxx Xxxxxxxxxxx
Xxxxx, Xxxxx 000, Xxxxxxxxxxx, XX 00000] (“Borrower”) HEREBY PROMISES TO PAY to the order of [OXFORD FINANCE LLC][SILICON VALLEY BANK] (“Lender”) the principal amount of [___________] MILLION DOLLARS ($______________) or such lesser amount as shall equal the outstanding principal balance of the
[Revolving Advances made under the Revolving Line][Term Loan] made to Borrower by Lender, plus interest on the aggregate unpaid principal amount of such [Revolving Advances][Term Loan], at the rates and in accordance with the terms of the Loan and
Security Agreement dated November __, 2018 by and among Borrower, Lender, Oxford Finance LLC, as Collateral Agent, and the other Lenders from time to time party thereto (as amended, restated, supplemented or otherwise modified from time to time,
the “Loan Agreement”). If not sooner paid, the entire principal amount and all accrued and unpaid interest hereunder shall be due and payable on the Maturity
Date as set forth in the Loan Agreement. Any capitalized term not otherwise defined herein shall have the meaning attributed to such term in the Loan Agreement.
Principal, interest and all other amounts due with respect to the [Revolving Advances made under the Revolving Line][Term Loan], are payable in lawful
money of the United States of America to Lender as set forth in the Loan Agreement and this Secured Promissory Note (this “Note”). The principal amount of
this Note and the interest rate applicable thereto, and all payments made with respect thereto, shall be recorded by Lender and, prior to any transfer hereof, endorsed on the grid attached hereto which is part of this Note.
The Loan Agreement, among other things, (a) provides for the making of a secured [Revolving Advances made under the Revolving Line][Term Loan] by Lender to
Borrower, and (b) contains provisions for acceleration of the maturity hereof upon the happening of certain stated events.
This Note may not be prepaid except as set forth in [Section 2.3(a)][Section 2.2 (c) and Section 2.2(d)] of the Loan Agreement.
This Note and the obligation of Borrower to repay the unpaid principal amount of the [Revolving Advances made under the Revolving Line][Term Loan],
interest on [such Revolving Advances][the Term Loan] and all other amounts due Lender under the Loan Agreement is secured under the Loan Agreement.
Presentment for payment, demand, notice of protest and all other demands and notices of any kind in connection with the execution, delivery, performance
and enforcement of this Note are hereby waived.
Borrower shall pay all reasonable fees and expenses, including, without limitation, reasonable attorneys’ fees and costs, incurred by Lender in the
enforcement or attempt to enforce any of Borrower’s obligations hereunder not performed when due.
This Note shall be governed by, and construed and interpreted in accordance with, the internal laws of the State of California.
The ownership of an interest in this Note shall be registered on a record of ownership maintained by Lender or its agent. Notwithstanding anything else in
this Note to the contrary, the right to the principal of, and stated interest on, this Note may be transferred only if the transfer is registered on such record of ownership and the transferee is identified as the owner of an interest in the
obligation. Borrower shall be entitled to treat the registered holder of this Note (as recorded on such record of ownership) as the owner in fact thereof for all purposes and shall not be bound to recognize any equitable or other claim to or
interest in this Note on the part of any other person or entity.
[Balance of Page Intentionally Left Blank]
IN WITNESS WHEREOF, Borrower has caused this Note to be duly executed by one of its officers thereunto duly authorized on the date
hereof.
|
BORROWER:
|
||
|
Castle Biosciences, Inc.
|
||
|
By
|
||
|
Name:
|
||
|
Title:
|
||
LOAN INTEREST RATE AND PAYMENTS OF PRINCIPAL
|
Date
|
Principal
Amount
|
Interest Rate
|
Scheduled
Payment Amount
|
Notation By
|
EXHIBIT E
BORROWING BASE CERTIFICATE
|
Borrower:
|
Castle Biosciences, Inc.
|
|
|
Collateral Agent:
|
Oxford Finance LLC
|
|
|
Commitment Amount:
|
$5,000,000
|
|
|
ACCOUNTS RECEIVABLE
|
||
|
1.
|
Accounts Receivable (invoiced) Book Value as of ____________________
|
$_______________
|
|
2.
|
Additions (please explain on next page)
|
$_______________
|
|
3.
|
Less: Intercompany / Employee / Non-Trade Accounts
|
$_______________
|
|
4
|
NET TRADE ACCOUNTS RECEIVABLE
|
$_______________
|
|
ACCOUNTS RECEIVABLE DEDUCTIONS (without duplication)
|
||
|
5.
|
150 Days Past Invoice Date (for Eligible CM Accounts) or 230 Days Past Invoice Date (for Eligible UV Accounts)
|
$_______________
|
|
6.
|
[reserved]
|
$_______________
|
|
7.
|
Foreign Account Debtor Accounts
|
$_______________
|
|
8.
|
Foreign Invoiced and/or Collected Accounts
|
$_______________
|
|
9.
|
Contra/Customer Deposit Accounts
|
$_______________
|
|
10.
|
U.S. Governmental Accounts (w/o AOC) (other than Medicare)
|
$_______________
|
|
11.
|
Promotion or Demo Accounts; Guaranteed Sale or Consignment Sale Accounts
|
$_______________
|
|
12.
|
Accounts with Memo or Pre-Xxxxxxxx
|
$_______________
|
|
13.
|
Contract Accounts; Accounts with Progress / Milestone Xxxxxxxx
|
$_______________
|
|
14.
|
Accounts for Retainage Xxxxxxxx
|
$_______________
|
|
15.
|
Trust / Bonded Accounts
|
$_______________
|
|
16.
|
Xxxx and Hold Accounts
|
$_______________
|
|
17.
|
Unbilled Accounts
|
$_______________
|
|
18.
|
Non-Trade Accounts (if not already deducted above)
|
|
|
19.
|
Accounts arising from Tests other than CM and UV tests
|
$_______________
|
|
20.
|
Chargeback Accounts / Debit Memos
|
$_______________
|
|
21.
|
Product Returns/Exchanges
|
$_______________
|
|
22.
|
Disputed Accounts; Insolvent Account Debtor Accounts
|
$_______________
|
|
23.
|
Deferred Revenue, if applicable/Other (please explain on next page)
|
$_______________
|
|
24.
|
Concentration Limits
|
$_______________
|
|
25.
|
Individual Account Debtor Accounts
|
$_______________
|
|
26.
|
TOTAL ACCOUNTS RECEIVABLE DEDUCTIONS
|
$_______________
|
|
27.
|
Eligible Accounts (#4 minus #26)
|
$_______________
|
|
28.
|
Amount of #27 arising from Cutaneous Melanoma test
|
|
|
29.
|
ELIGIBLE AMOUNT OF CM ACCOUNTS (39% of #28)
|
$_______________
|
|
30.
|
Amount of #27 arising from Uveal Melanoma test
|
|
|
31.
|
ELIGIBLE AMOUNT OF CM ACCOUNTS (22% of #30)
|
$_______________
|
|
BALANCES
|
||
|
32.
|
Maximum Loan Amount
|
$5,000,000.00
|
|
33.
|
Total Funds Available [Lesser of #32 or (#29 plus #31)]
|
$_______________
|
|
34.
|
Present balance owing on Line of Credit
|
$_______________
|
|
35.
|
RESERVE POSITION (#33 minus #34)
|
$_______________
|
[Continued on following page.]
Explanatory comments from previous page:
______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
____________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
The undersigned represents and warrants that this is true, complete and correct, and that the information in this Borrowing Base
Certificate complies with the representations and warranties in the Loan and Security Agreement between the undersigned and Oxford Finance LLC, as Collateral Agent, and the Lenders party thereto.
|
COMMENTS:
By: ___________________________
Authorized Signer
Date: __________________________
|
LENDERS USE ONLY
Received by: _____________________
authorized signer
Date: __________________________
Verified: ________________________
authorized signer
Date: ___________________________
Compliance Status: Yes No
|
EXHIBIT F
TRANSACTION REPORT
[EXCEL spreadsheet to be provided separately from lending officer.]
CORPORATE BORROWING CERTIFICATE
|
Borrower:
|
CASTLE BIOSCIENCES, INC.
|
Date: November __, 2018
|
|
Lenders:
|
OXFORD FINANCE LLC, as Collateral Agent and Lender
|
|
|
SILICON VALLEY BANK, as Lender
|
I hereby certify as follows, as of the date set forth above:
1. I am the Secretary, Assistant Secretary or other officer of Borrower. My
title is as set forth below.
2. Borrower’s exact legal name is set forth above. Borrower is a
corporation existing under the laws of the State of Delaware.
3. Attached hereto as Exhibit A and Exhibit B, respectively, are true, correct and complete copies of (i) Borrower’s Certificate of Incorporation (including
amendments), as filed with the Secretary of State of the state in which Borrower is incorporated as set forth in paragraph 2 above; and (ii) Borrower’s Bylaws. Neither such Certificate of Incorporation nor such Bylaws have been amended, annulled,
rescinded, revoked or supplemented, and such Certificate of Incorporation and such Bylaws remain in full force and effect as of the date hereof.
4. The following resolutions were duly and validly adopted by Borrower’s
Board of Directors at a duly held meeting of such directors (or pursuant to a unanimous written consent or other authorized corporate action). Such resolutions are in full force and effect as of the date hereof and have not been in any way
modified, repealed, rescinded, amended or revoked, and the Lenders may rely on them until each Lender receives written notice of revocation from Borrower.
[Balance of Page Intentionally Left Blank]
Resolved, that any one of the following officers or employees of Borrower, whose names, titles and signatures are below, may act on behalf of Borrower:
|
Name
|
Title
|
Signature
|
Authorized to Add or Remove Signatories
|
|||
|
□
|
||||||
|
□
|
||||||
|
□
|
||||||
|
□
|
Resolved Further, that
any one of the persons designated above with a checked box beside his or her name may, from time to time, add or remove any individuals to and from the above
list of persons authorized to act on behalf of Borrower.
Resolved Further, that such individuals may, on behalf of Borrower:
Borrow Money. Borrow money from the Lenders.
Execute Loan Documents. Execute any loan
documents any Lender requires.
Grant Security. Grant Collateral Agent a
security interest in any of Borrower’s assets.
Negotiate Items. Negotiate or discount all
drafts, trade acceptances, promissory notes, or other indebtedness in which Borrower has an interest and receive cash or otherwise use the proceeds.
Issue Warrants. Issue warrants for Borrower’s
capital stock.
Further Acts. Designate other individuals to
request advances, pay fees and costs and execute other documents or agreements (including documents or agreement that waive Borrower’s right to a jury trial) they believe to be necessary to effectuate such resolutions.
Resolved Further, that all acts authorized by the above resolutions and any prior acts relating thereto are ratified.
[Balance of Page Intentionally Left Blank]
5. The persons listed above are Borrower’s officers or employees with their
titles and signatures shown next to their names.
|
By:
|
||
|
Name:
|
||
|
Title:
|
*** If the Secretary, Assistant Secretary or other certifying officer executing above is designated by the resolutions set forth in
paragraph 4 as one of the authorized signing officers, this Certificate must also be signed by a second authorized officer or director of Borrower.
I, the __________________________ of Borrower, hereby certify as to paragraphs 1
through 5 above, as
[print title]
of the date set forth above.
|
By:
|
||
|
Name:
|
||
|
Title:
|
[Signature Page to Corporate Borrowing Certificate]
EXHIBIT A
Certificate of Incorporation (including amendments)
[see attached]
EXHIBIT B
Bylaws
[see attached]
|
DEBTOR:
|
CASTLE BIOSCIENCES, INC.
|
|
|
SECURED PARTY:
|
OXFORD FINANCE LLC,
|
|
|
as Collateral Agent
|
EXHIBIT A TO UCC FINANCING STATEMENT
Description of Collateral
The Collateral consists of all of Debtor’s right, title and interest in and to the following personal property:
All goods, Accounts (including health‑care receivables), Equipment, Inventory, contract rights or rights to payment of money, leases,
license agreements, franchise agreements, General Intangibles (except as noted below), commercial tort claims, documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts and other
Collateral Accounts, all certificates of deposit, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), securities, and all other investment property, supporting obligations, and financial assets,
whether now owned or hereafter acquired, wherever located; and
All Debtor’s Books relating to the foregoing, and any and all claims, rights and interests in any of the above and all substitutions
for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoing.
Notwithstanding the foregoing, the Collateral does not include (i) any Intellectual Property; provided, however, the Collateral shall
include all Accounts and all proceeds of Intellectual Property. If a judicial authority (including a U.S. Bankruptcy Court) would hold that a security interest in the underlying Intellectual Property is necessary to have a security interest in
such Accounts and such property that are proceeds of Intellectual Property, then the Collateral shall automatically, and effective as of the Effective Date, include the Intellectual Property to the extent necessary to permit perfection of Secured
Party’s security interest in such Accounts and such other property of Debtor that are proceeds of the Intellectual Property; (ii) more than [***]% of the total combined voting power of all classes of stock entitled to vote the shares of capital
stock (the “Shares”) of any Foreign Subsidiary, if Debtor demonstrates to Secured Party’s reasonable satisfaction that a pledge of more than [***] percent ([***]%) of the Shares of such Subsidiary creates a present and existing adverse tax
consequence to Debtor under the U.S. Internal Revenue Code; (iii) any license, contract or interest of Borrower as a lessee under an Equipment lease, in each case if the granting of a Lien in such license, contract or lease is prohibited by or
would constitute a default under the agreement governing such license, contract or lease (but (A) only to the extent such prohibition is enforceable under applicable law and (B) other than to the extent that any such term would be rendered
ineffective pursuant to Sections 9-406, 9-408 or 9-409 (or any other Section) of Division 9 of the Code); provided that upon the termination, lapsing or expiration of any such prohibition, such license, contract or lease, as applicable, shall
automatically be subject to the security interest granted in favor of Secured Party hereunder and become part of the “Collateral”; and (iv) any Medicare/Medicaid Receivables Account.
Pursuant to the terms of a certain negative pledge arrangement with Secured Party and the Lenders, Debtor has agreed not to encumber any
of its Intellectual Property.
Capitalized terms used but not defined herein have the meanings ascribed in the Uniform Commercial Code in effect in the State of
California as in effect from time to time (the “Code”) or, if not defined in the Code, then in the Loan and Security Agreement by and between Debtor, Secured Party and the other Lenders party thereto (as modified, amended and/or restated from time
to time).
[***]=Certain Confidential Information Omitted
