FOURTH AMENDING AGREEMENT TO SECOND AMENDED AND RESTATED TERM LOAN AGREEMENT
Exhibit 4.4
FOURTH AMENDING AGREEMENT TO
SECOND AMENDED AND RESTATED TERM LOAN AGREEMENT
dated as of March 12, 2020
between
as Borrower,
The Subsidiary Guarantors from Time to Time Party Hereto,
The Lenders from Time to Time Party Hereto,
and
CRG SERVICING LLC
as Administrative and Collateral Agent
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FOURTH AMENDING AGREEMENT TO THE SECOND AMENDED AND RESTATED TERM LOAN AGREEMENT, dated as of March 12, 2020 (this “Amending Agreement”) among Correvio Pharma Corp., as Borrower, the Subsidiary Guarantors party hereto, the Lenders party hereto and CRG Servicing LLC, as Administrative Agent.
RECITALS
WHEREAS the Borrower, the Subsidiary Guarantors, the Lenders and the Administrative Agent are parties to the Second Amended and Restated Term Loan Agreement dated as of May 15, 2018 (as amended by amending agreements dated as of March 11, 2019, September 27, 2019 and December 17, 2019 the “Credit Agreement”);
AND WHEREAS the Borrower, the Subsidiary Guarantors, the Lenders and the Administrative Agent have agreed to amend certain provisions of the Credit Agreement in the manner and on the terms and conditions provided for herein.
NOW THEREFORE for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
| 1.1 | Definitions |
All capitalized terms not otherwise defined herein shall have the meanings ascribed thereto in the Credit Agreement.
ARTICLE 2
AMENDMENTS
| 2.1 | Amendments to Credit Agreement |
| 1) | Section 1.01 of the Credit Agreement is hereby amended by adding the following definitions in the applicable alphabetical order: |
“Definitive Purchase Agreement” means a purchase agreement for the purchase of all of the outstanding shares of the Borrower that results in the payout in full of all Obligations owing to the Lenders and is in a form, and with a purchaser, satisfactory to the Administrative Agent.
“Fourth Amendment Effective Date” means, March 12, 2020.
“Liquidity Covenant Waiver Period” means, the period commencing on the Fourth Amendment Effective Date and ending on the date that is ten (10) days following the Fourth Amendment Effective Date; provided that if the Borrower provides the Administrative Agent with an executed Definitive Purchase Agreement during such ten (10) day period and the Administrative Agent confirms in writing to the Borrower that such Definitive Purchase Agreement is acceptable to the Administrative Agent, then the Liquidity Covenant Waiver Period shall end on the earlier to occur of: (a) June 30, 2020; and (b) the termination of the Definitive Purchase Agreement.
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| 2) | Section 10.01 of the Credit Agreement is hereby deleted and replaced with the following: |
10.01 Minimum Liquidity. The Obligors shall maintain at all times Liquidity (which for certainty shall exclude amounts in the Italian Account and the Escrow Account) in an aggregate amount which shall exceed (i) $5,000,000 from the date hereof to and including December 31, 2018, (ii) $10,000,000 beginning January 1, 2019 until the commencement of the Liquidity Covenant Waiver Period, (iii) $0 during the Liquidity Covenant Waiver Period, and (iv) $10,000,000 following the conclusion of the Liquidity Covenant Waiver Period and thereafter.
| 3) | Subsection 10.02(d) of the Credit Agreement is hereby amended by replacing the reference to “$36,000,000” in such subsection with a reference to “$32,000,000”. |
ARTICLE 3
CONDITIONS PRECEDENT
| 3.1 | Conditions Precedent |
This Amending Agreement shall become effective if and when:
| (a) | the Administrative Agent shall have received this Amending Agreement duly executed and delivered by the Administrative Agent, the Lenders, the Borrower and the Subsidiary Guarantors; |
| (b) | no Event of Default shall have occurred and be continuing; and |
| (c) | the Borrower shall have paid all fees and expenses (including legal fees) owing to the Administrative Agent and the Lenders as of the date of this Amending Agreement. |
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
| 4.1 | Representations and Warranties True and Correct; No Default or Event of Default |
Each Obligor hereby represents and warrants to the Administrative Agent and the Lenders that after giving effect to this Amending Agreement, (i) each of the representations and warranties of the Obligors contained in the Credit Agreement and each of the other Loan Documents is true and correct on, and as of the date hereof as if made on such date (except to the extent that such representation or warranty expressly relates to an earlier date and except for changes therein expressly permitted or expressly contemplated by the Credit Agreement) and (ii) no event has occurred and is continuing which constitutes or would constitute a Default or an Event of Default.
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ARTICLE 5
SUBSIDIARY GUARANTOR CONFIRMATION
| 5.1 | Subsidiary Guarantor Confirmation |
Each Subsidiary Guarantor acknowledges and agrees that each Guarantee to which it is a party continues to be valid and enforceable against such Subsidiary Guarantor in accordance with its terms and continues to guarantee the obligations set out therein. Further, in connection with the Credit Agreement as amended by this Amending Agreement, each Subsidiary Guarantor hereby ratifies, confirms, acknowledges and agrees that such Subsidiary Guarantor is and continues to be bound by all of the obligations, indebtedness and liabilities of, and grants of security made by, such Subsidiary Guarantor under the Loan Documents to which each is a party.
ARTICLE 6
MISCELLANEOUS
| 6.1 | No Other Amendments, Waivers or Consents |
Except as expressly set forth herein, the Credit Agreement and all Credit Documents shall be unmodified and shall continue to be in full force and effect in accordance with their terms. The execution, delivery and effectiveness of the waiver and amendments in this Amending Agreement shall not be deemed to be a waiver of compliance in the future or a waiver of any preceding or succeeding breach of any covenant or provision of the Credit Agreement.
| 6.2 | Time |
Time is of the essence in the performance of the parties’ respective obligations in this Amending Agreement.
| 6.3 | Governing Law |
This Amending Agreement and the rights and obligations of the parties hereunder shall be governed by, and construed in accordance with, the law of the State of New York, without regard to principles of conflicts of laws that would result in the application of the laws of any other jurisdiction; provided that Section 5-1401 of the New York General Obligations Law shall apply.
| 6.4 | Successors and Assigns |
This Amending Agreement shall enure to the benefit of and be binding upon the parties hereto and their respective successors and any assigns, transferees and endorsees of the Administrative Agent or any Lender. Nothing in this Amending Agreement, express or implied, shall give to any Person, other than the parties hereto and their successors hereunder, any benefit or any legal or equitable right, remedy or claim under this Amending Agreement.
| 6.5 | Counterparts |
This Amending Agreement may be executed by the parties hereto in counterparts and may be executed and delivered by facsimile or other electronic means and all such counterparts and facsimiles shall together constitute one and the same agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered as of the day and year first above written.
| BORROWER: | ||
| By: |
/s/ ▇▇▇▇▇▇ ▇▇▇▇ | |
| Name: ▇▇▇▇▇▇ ▇▇▇▇ | ||
| Title: CFO and President | ||
| By: |
||
| Name: | ||
| Title: | ||
| Address for Notices: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇
Attn: Legal Affairs Tel.: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Email: ▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇ | ||
Signature Page to Fourth Amending Agreement
SUBSIDIARY GUARANTORS:
| CARDIOME, INC. | ||
| By: |
/s/ ▇▇▇▇▇▇ ▇▇▇▇ | |
| Name: ▇▇▇▇▇▇ ▇▇▇▇ | ||
| Title: Director | ||
| Address for Notices: c/o Corporation Service Company ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇
with a copy to: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇
Attn: Legal Affairs Tel.: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Email: ▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇ | ||
Signature Page to Fourth Amending Agreement
| ARTESIAN THERAPEUTICS, INC. | ||
| By: |
/s/ ▇▇▇▇▇▇ ▇▇▇▇ | |
| Name: ▇▇▇▇▇▇ ▇▇▇▇ | ||
| Title: Director
| ||
| Address for Notices: c/o Corporation Service Company ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇
with a copy to: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇
Attn: Legal Affairs Tel.: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Email: ▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇ | ||
Signature Page to Fourth Amending Agreement
| CORREVIO LLC | ||
| By: |
/s/ ▇▇▇▇▇▇ ▇▇▇▇ | |
| Name: ▇▇▇▇▇▇ ▇▇▇▇ | ||
| Title: CFO | ||
| By: |
||
| Name: | ||
| Title:
Address for Notices: Correvio LLC ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇
with a copy to: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇
Attn: Legal Affairs Tel.: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Email: ▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇ | ||
Signature Page to Fourth Amending Agreement
| CORREVIO INTERNATIONAL SARL | ||
| By: |
/s/ ▇▇▇▇▇▇ ▇▇▇▇ | |
| Name: ▇▇▇▇▇▇ ▇▇▇▇ | ||
| Title: Director | ||
| By: |
||
| Name: | ||
| Title:
Address for Notices: ▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
with a copy to: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇
Attn: Legal Affairs Tel.: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Email: ▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇ | ||
Signature Page to Fourth Amending Agreement
| CORREVIO (UK) LTD. | ||
| By: |
/s/ ▇▇▇▇▇▇ ▇▇▇▇ | |
| Name: ▇▇▇▇▇▇ ▇▇▇▇ | ||
| Title: Director | ||
| By: |
||
| Name: | ||
| Title:
Address for Notices: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇ Park, Uxbridge, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
with a copy to: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇
Attn: Legal Affairs Tel.: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Email: ▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇ | ||
Signature Page to Fourth Amending Agreement
| CARDIOME UK LIMITED | ||
| By: |
/s/ ▇▇▇▇▇▇ ▇▇▇▇ | |
| Name: ▇▇▇▇▇▇ ▇▇▇▇ | ||
| Title: Director | ||
|
Address for Notices: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇ Park, Uxbridge, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
with a copy to: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇
Attn: Legal Affairs Tel.: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Email: ▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇ | ||
Signature Page to Fourth Amending Agreement
| CORREVIO GMBH | ||
| By: |
/s/ ▇▇▇▇▇▇ ▇▇▇▇ | |
| Name: ▇▇▇▇▇▇ ▇▇▇▇ | ||
| Title: Director | ||
| By: |
||
| Name: | ||
| Title:
Address for Notices: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇. ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
with a copy to: c/o Correvio Pharma Corp. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇
Attn: Legal Affairs Tel.: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Email: ▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇ | ||
Signature Page to Fourth Amending Agreement
ADMINISTRATIVE AGENT:
| CRG SERVICING LLC | ||
| By: |
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ | |
| Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇ | ||
| Title: Authorized Signatory | ||
|
Address for Notices: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: General Counsel Tel.: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Email: ▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇ | ||
Signature Page to Fourth Amending Agreement
LENDERS:
| CRG PARTNERS III L.P. By CRG PARTNERS III GP L.P., its General Partner By CRG PARTNERS III GP LLC, its General Partner | ||
| By: | /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ | |
| Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇ | ||
| Title: Authorized Signatory
| ||
| Address for Notices: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: General Counsel Tel.: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Email: ▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇ | ||
| CRG PARTNERS III – PARALLEL FUND “A” L.P. By CRG PARTNERS III – PARALLEL FUND “A” GP L.P., its General Partner By CRG PARTNERS III – PARALLEL FUND “A” GP LLC, its General Partner | ||
| By: | /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ | |
| Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇ | ||
| Title: Authorized Signatory
| ||
| Address for Notices: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: General Counsel Tel.: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Email: ▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇ | ||
Signature Page to Fourth Amending Agreement
| CRG PARTNERS III (CAYMAN) L.P. By CRG PARTNERS III (CAYMAN) GP L.P., its General Partner By CRG PARTNERS III (CAYMAN) GP LLC, its General Partner | ||
| By: | /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ | |
| Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇ | ||
| Title: Authorized Signatory
| ||
| Address for Notices: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: General Counsel Tel.: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Email: ▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇ | ||
| CRG PARTNERS III – PARALLEL FUND “B” (CAYMAN) L.P. By CRG PARTNERS III (CAYMAN) GP L.P., its General Partner By CRG PARTNERS III (CAYMAN) GP LLC, its General Partner | ||
| By: | /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ | |
| Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇ | ||
| Title: Authorized Signatory
| ||
| Address for Notices: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: General Counsel Tel.: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Email: ▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇ | ||
Signature Page to Fourth Amending Agreement