ENTELLUS MEDICAL INC - FORM 8-K - EX-10.1 - April 2, 2015

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Exhibit 10.1

SECOND AMENDMENT TO AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT

THIS SECOND AMENDMENT to Amended and Restated Loan and Security Agreement (this “Amendment”) is entered into as of March 30, 2015 (the “Amendment Date”), by and among OXFORD FINANCE LLC, a Delaware limited liability company with an office located at 133 North Fairfax Street, Alexandria, Virginia 22314 (in its individual capacity, “Oxford”; and in its capacity as Collateral Agent, “Collateral Agent”), the Lenders listed on Schedule 1.1 thereof from time to time including Oxford in its capacity as a Lender (each a “Lender” and collectively, the “Lenders”) and Entellus Medical, Inc., a Delaware corporation with offices located at 3600 Holly Lane North, Suite 40, Plymouth, MN 55447 (“Borrower”).

WHEREAS, Collateral Agent, Borrower and Lenders party thereto from time to time have entered into that certain Amended and Restated Loan and Security Agreement, dated as of December 20, 2013 (as amended, supplemented or otherwise modified from time to time, the “Loan Agreement”) pursuant to which Lenders have provided to Borrower certain loans in accordance with the terms and conditions thereof; and

WHEREAS, Borrower, Lenders and Collateral Agent desire to amend certain provisions of the Loan Agreement as provided herein and subject to the terms and conditions set forth herein;

NOW, THEREFORE, in consideration of the promises, covenants and agreements contained herein, and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, Borrower, Lenders and Collateral Agent hereby agree as follows:

 

  1. Capitalized terms used herein but not otherwise defined shall have the respective meanings given to them in the Loan Agreement.

 

  2. Section 6.2(a)(i) of the Loan Agreement is hereby amended and restated in its entirety as follows:

(i) (A) (1) as soon as available, but no later than forty five (45) days after the last day of each fiscal quarter of Borrower, a Borrower prepared consolidated (and upon Collateral Agent’s request, consolidating) balance sheet, income statement and cash flow statement covering the consolidated operations of Borrower and its Subsidiaries for such quarter certified by a Responsible Officer and in a form reasonably acceptable to Collateral Agent; provided, however, for as long as Borrower is a SEC reporting company and fulfills its obligations under Section 6.2(a)(ii) hereof, it will not be required to provide the aforementioned financial statements for its last fiscal quarter of each year, and (2) as soon as available, but no later than forty five (45) days after the last day of each of the first two months of each fiscal quarter of Borrower, a Borrower prepared consolidated statement of revenues of Borrower and its Subsidiaries for such month certified by a Responsible Officer and in a form reasonably acceptable to Collateral Agent; provided, however, that for each month ending after the date when the Collateral Agent so directs Borrower, in lieu of providing the financial statements described in this clause (A), Borrower shall deliver to each Lender the financial statements described in clause (B) below.

(B) 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.

 

  3. Section 6.2(b) of the Loan Agreement is hereby amended and restated in its entirety as follows:

(b) If Borrower is obligated to deliver financial statements pursuant to Section 6.2(a)(i)(A), then concurrently with the delivery of the financial statements specified in Section 6.2(i)(A)(1) but no later than forty-five (45) days after the last day of each fiscal quarter, Borrower shall deliver to each Lender, a duly completed Compliance Certificate signed by a Responsible Officer; provided, however, if Borrower is obligated to deliver financial statements pursuant to Section 6.2(a)(i)(B), then concurrently with the delivery of such financial statements but no later than thirty (30) days after the last day of each month, Borrower shall deliver to each Lender, a duly completed Compliance Certificate signed by a Responsible Officer.

  4. Exhibit C (Compliance Certificate) to the Agreement is hereby amended and restated in its entirety as set forth on Exhibit C hereto.

 

  5. Limitation of Amendment.

 

  a. The amendments and waivers set forth in Sections 2 through 4 above are effective for the purposes set forth herein and shall be limited precisely as written and shall not be deemed to (a) be a consent to any amendment, waiver or modification of any other term or condition of any Loan Document, or (b) otherwise prejudice any right, remedy or obligation which Lenders or Borrower may now have or may have in the future under or in connection with any Loan Document, as amended hereby.

 

  b. This Amendment shall be construed in connection with and as part of the Loan Documents and all terms, conditions, representations, warranties, covenants and agreements set forth in the Loan Documents, except as herein amended, are hereby ratified and confirmed and shall remain in full force and effect.

 

  6. To induce Collateral Agent and Lenders to enter into this Amendment, Borrower hereby represents and warrants to Collateral Agent and Lenders as follows:

 

  a. Immediately after giving effect to this Amendment (a) the representations and warranties contained in the Loan Documents are true, accurate and complete in all material respects as of the date hereof (except to the extent such representations and warranties relate to an earlier date, in which case they are true and correct as of such date), and (b) no Event of Default has occurred and is continuing;

 

  b. Borrower has the power and due authority to execute and deliver this Amendment and to perform its obligations under the Loan Agreement, as amended by this Amendment;

 

  c. The organizational documents of Borrower delivered to Collateral Agent on the Effective Date, and updated pursuant to subsequent deliveries by the Borrower to the Collateral Agent, remain true, accurate and complete and have not been amended, supplemented or restated and are and continue to be in full force and effect;

 

  d. The execution and delivery by Borrower of this Amendment and the performance by Borrower of its obligations under the Loan Agreement, as amended by this Amendment, do not and will not contravene (i) any law or regulation binding on or affecting Borrower, (ii) any contractual restriction with a Person binding on Borrower, (iii) any order, judgment or decree of any court or other governmental or public body or authority, or subdivision thereof, binding on Borrower, or (iv) the organizational documents of Borrower;

 

  e. The execution and delivery by Borrower of this Amendment and the performance by Borrower of its obligations under the Loan Agreement, as amended by this Amendment, do not require any order, consent, approval, license, authorization or validation of, or filing, recording or registration with, or exemption by any governmental or public body or authority, or subdivision thereof, binding on Borrower, except as already has been obtained or made; and

 

  f. This Amendment has been duly executed and delivered by Borrower and is the binding obligation of Borrower, enforceable against Borrower in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium or other similar laws of general application and equitable principles relating to or affecting creditors’ rights.

 

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  7. Except as expressly set forth herein, the Loan Agreement shall continue in full force and effect without alteration or amendment. This Amendment and the Loan Documents represent the entire agreement about this subject matter and supersede prior negotiations or agreements.

 

  8. This Amendment shall be deemed effective as of the Amendment Date upon (a) the due execution and delivery to Collateral Agent of this Amendment by each party hereto and (b) Borrower’s payment of all Lenders’ Expenses incurred through the date hereof, which may be debited from any of Borrower’s accounts with Lenders.

 

  9. This Amendment may be executed in any number of counterparts, each of which shall be deemed an original, and all of which, taken together, shall constitute one and the same instrument.

 

  10. This Amendment and the rights and obligations of the parties hereto shall be governed by and construed in accordance with the laws of the State of New York.

[Balance of Page Intentionally Left Blank]

 

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IN WITNESS WHEREOF, the parties hereto have caused this Second Amendment to Amended and Restated Loan and Security Agreement to be executed as of the date first set forth above.

 

BORROWER:
ENTELLUS MEDICAL, INC.
By

/s/ Thomas E. Griffin

Name: Thomas E. Griffin
Title: Chief Financial Officer
COLLATERAL AGENT AND LENDER:
OXFORD FINANCE LLC
By

/s/ Timothy A. Lux

Name: Timothy A. Lux
Title: Chief Operating Officer

EXHIBIT C

Compliance Certificate

 

TO:    OXFORD FINANCE LLC, as Collateral Agent and Lender
FROM:    ENTELLUS MEDICAL, INC.

The undersigned authorized officer (“Officer”) of Entellus Medical, Inc. (“Borrower”), hereby certifies that in accordance with the terms and conditions of the Amended and Restated 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 Section 5 of 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 extensions if applicable), 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)    Revenue statements    Monthly within 45 days           Yes      No      N/A
2)    Financial statements    Quarterly within 45 days (or Monthly within 30 days if requested by Collateral Agent)           Yes      No      N/A
3)    Annual (CPA Audited) statements    Within 120 days after FYE           Yes      No      N/A
4)    Annual Financial Projections/Budget (prepared on a monthly basis)    Annually (within 45 days of FYE), and when revised           Yes      No      N/A

5)    A/R & A/P agings    If applicable           Yes      No      N/A
6)    8-K, 10-K and 10-Q Filings    If applicable, within 5 days of filing           Yes      No      N/A
7)    Compliance Certificate    Quarterly within 45 days or monthly within 30 days, as applicable           Yes      No      N/A
8)    IP Report    When required           Yes      No      N/A
9)    Total amount of Borrower’s cash and cash equivalents at the last day of the measurement period         $                  Yes      No      N/A
10)    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

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 Two Hundred Fifty Thousand Dollars ($250,000.00)?    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
5)    Have there been any registrations of any copyright, including any subsequent ownership right of Borrower or any of its Subsidiaries in or to any copyright, patent or trademark since the end of the last calendar quarter? Borrower needs to make this certification only if this Compliance Certificate is for the last month of a calendar quarter.    Yes    No

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. If this Compliance Certificate is for the last month of a calendar quarter, for any registrations of any copyright, including any subsequent ownership right of Borrower or any of its Subsidiaries in or to any copyright, patent or trademark since the end of the last calendar quarter, please also provide copies of such registrations if requested by Lender.)

 

Entellus Medical, Inc.
By:

 

Name:

 

Title:

 

Date:

 

LENDER USE ONLY
Received by:

 

 Date:

 

Verified by:

 

 Date:

 

Compliance Status:            Yes                     No

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