FIRST AMENDMENT TO LOAN AGREEMENT
Exhibit 10.3
FIRST AMENDMENT
TO
This First Amendment to the Loan Agreement (defined below) (this “Amendment”), dated as of February 24, 2020 (the “Effective Date”), is entered into by and among COLLEGIUM PHARMACEUTICAL, INC., a Virginia corporation (as “Borrower”), the Guarantors from time to time party thereto, BIOPHARMA CREDIT PLC, a public limited company incorporated under the laws of England and Wales (as the “Collateral Agent” and a “Lender”) and BIOPHARMA CREDIT INVESTMENTS V (MASTER) LP, a Cayman Islands exempted limited partnership (as a “Lender”).
RECITALS
WHEREAS, Borrower, Lenders and the other parties thereto have entered into that certain Loan Agreement dated as of February 6, 2020 (the “Loan Agreement”);
WHEREAS, Section 2.2(b) of the Loan Agreement requires generally that principal shall be repaid quarterly on the applicable Payment Dates and Section 2.3(a) of the Loan Agreement requires generally that interest shall be paid quarterly on the applicable Interest Dates;
WHEREAS, Borrower and Lenders have agreed that principal shall be repaid and interest shall be paid, generally, on the last day of each applicable calendar quarter; and
WHEREAS, in accordance with Section 11.5(a) of the Loan Agreement, Borrower and Lenders desire to amend the Loan Agreement on the terms and conditions set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and intending to be legally bound by this Amendment, the undersigned hereby agrees and declares as follows:
SECTION 1. Definitions; Interpretation. All capitalized terms used in this Amendment (including in the recitals hereof) and not otherwise defined herein shall have the meanings assigned to them in the Loan Agreement. The rules of interpretation set forth in the first paragraph of Section 13.1 of the Loan Agreement shall be applicable to this Amendment and are incorporated herein by this reference.
SECTION 2. Amendment to Loan Agreement.
(a) The Loan Agreement shall be amended by deleting in its entirety Section 2.2(b)(i) of the Loan Agreement and replacing it as follows:
“(i) Subject to clause (ii) below, with respect to each Term Loan, Borrower shall make equal quarterly payments of principal of such Term Loan commencing on the first Payment Date on or immediately following the 3rd-month anniversary of the Closing Date and continuing on each subsequent Payment Date; provided, that if any such Payment Date is not a Business Day, the applicable payment shall be due and payable on the first Business Day immediately after such date.”
(b) The Loan Agreement shall be amended by deleting in its entirety Section 2.2(b)(ii) of the Loan Agreement and replacing it as follows:
“(ii) The amount of the outstanding aggregate principal amount of the Term Loans to prepaid with the Equity Proceeds Prepayment, if any, shall be applied to reduce the remaining amortization payments in the inverse order of maturity starting with the quarterly amortization payment payable on the Payment Date that is the Term Loan Maturity Date; or if such date is not a Business Day, on the first Business Day immediately after such date.”
(c) The Loan Agreement shall be amended by deleting in its entirety the defined term “Payment Date” in Section 13.1 of the Loan Agreement and replacing it as follows:
““Payment Date” means, with respect to the Term Loans and as the context dictates: (a) the first Interest Date on or immediately following the 3rd-month anniversary of the Closing Date; (b) thereafter, each succeeding Interest Date; and (c) the Term Loan Maturity Date.”
SECTION 3. Representations and Warranties; Reaffirmation.
(a) Borrower hereby represents and warrants to each Lender and the Collateral Agent as follows:
(i) Borrower has all requisite power and authority to enter into this Amendment and to carry out the transactions contemplated hereby.
(ii) This Amendment has been duly executed and delivered by Borrower and is the legally valid and binding obligation of Borrower, enforceable against Borrower in accordance with its respective terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability.
(iii) The execution, delivery and performance by Borrower of this Amendment have been duly authorized and do not (A) conflict with any of Borrower’s Operating Documents, (B) contravene, conflict with, constitute a default under or violate any material Requirements of Law, (C) contravene, conflict or violate any applicable order, writ, judgment, injunction, decree, determination or award of any Governmental Authority by which Borrower or any of its Subsidiaries or any of its or their respective properties or assets may be bound, (D) 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), (E) constitute a material breach of or a material default or an event of default under, or result in or permit the termination or acceleration of, any Material Contract by which Borrower is bound or (F) require any approval of stockholders, members or partners or any approval or consent of any Person except for such approvals or consents which will be obtained on or before the date hereof.
(b) Borrower hereby ratifies, confirms, reaffirms, and acknowledges its obligations under the Loan Documents to which it is a party and agrees that the Loan Documents remain in full force and effect, undiminished by this Amendment, except as expressly provided herein. By
executing this Amendment, Borrower acknowledges that it has read, consulted with its attorneys regarding, and understands, this Amendment.
SECTION 4. References to and Effect on Loan Agreement. Except as specifically set forth herein, this Amendment shall not modify or in any way affect any of the provisions of the Loan Agreement, which shall remain in full force and effect and is hereby ratified and confirmed in all respects. On and after the Effective Date all references in the Loan Agreement to “this Agreement,” “hereto,” “hereof,” “hereunder,” or words of like import shall mean the Loan Agreement as amended by this Amendment.
SECTION 5. Governing Law; Venue; Jury Trial Waiver. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO ANY PRINCIPLES OF CONFLICTS OF LAW THAT COULD REQUIRE THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION. Each of the Credit Parties, Lenders and the Collateral Agent submit to the exclusive jurisdiction of the courts of the State of New York sitting in New York County, and of the United States District Court of the Southern District of New York, and any appellate court from any thereof, and agrees that all claims in respect of any such action, litigation or proceeding may be heard and determined in such New York State court or, to the fullest extent permitted by Requirements of Law, in such Federal court; provided, however, that nothing in this Amendment shall be deemed to operate to preclude the 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 the Collateral Agent or any Lender. Each Credit Party expressly submits and consents in advance to such jurisdiction in any action or suit commenced in any such court, and each Credit Party 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. Each Credit Party 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 such Credit Party at the address set forth in (or otherwise provided in accordance with the terms of) Section 9 of the Loan Agreement and that service so made shall be deemed completed upon the earlier to occur of such Credit Party’s actual receipt thereof or three (3) Business Days after deposit in the U.S. mails, proper postage prepaid.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE CREDIT PARTIES, LENDERS AND THE COLLATERAL AGENT WAIVES ITS RIGHT TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR BASED UPON THIS AMENDMENT OR ANY TRANSACTION CONTEMPLATED HEREBY, INCLUDING CONTRACT, TORT, BREACH OF DUTY AND ALL OTHER CLAIMS. THIS WAIVER IS A MATERIAL INDUCEMENT FOR ALL PARTIES HERETO TO ENTER INTO THIS AMENDMENT. EACH PARTY HERETO HAS REVIEWED THIS WAIVER WITH ITS COUNSEL.
[Signature Page Follows]
IN WITNESS WHEREOF, each of the undersigned has caused this Amendment to be duly executed and delivered as of the date first above written.
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COLLEGIUM PHARMACEUTICAL INC., |
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as Borrower |
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By: |
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Name: |
Xxxxxx Xxxxxxxx |
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Title: |
President and Chief Executive Officer |
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COLLEGIUM SECURITIES CORPORATION, |
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as an additional Credit Party |
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By: |
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Name: |
Xxxxxx Xxxxxxxx |
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Title: |
President |
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Signature Page to First Amendment to Loan Agreement
BIOPHARMA CREDIT PLC,
as Collateral Agent and a Lender
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By: Pharmakon Advisors, LP, |
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its Investment Manager |
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By: Pharmakon Management I, LLC, |
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its General Partner |
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By |
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Name: |
Xxxxx Xxxxxxxx xx Xxxxx |
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Title: |
Managing Member |
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BIOPHARMA CREDIT INVESTMENTS V (MASTER) LP,
as a Lender
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By: Pharmakon Advisors, LP, |
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its Investment Manager |
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By: Pharmakon Management I, LLC, |
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its General Partner |
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By |
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Name: |
Xxxxx Xxxxxxxx xx Xxxxx |
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Title: |
Managing Member |
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Signature Page to First Amendment to Loan Agreement
