Attached files
| file | filename |
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| 8-K - 8-K - Conformis Inc | a20170703_form8-kxoxford2d.htm |
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SECOND AMENDMENT TO
LOAN AND SECURITY AGREEMENT
THIS SECOND AMENDMENT to Loan and Security Agreement (this “Amendment”) is entered into as
of June 30, 2017, by and between OXFORD FINANCE LLC, a Delaware limited liability company with an office
located at 133 North Fairfax Street, Alexandria, Virginia 22314 (“Oxford”), as collateral agent (in such capacity,
“Collateral Agent”), the Lenders listed on Schedule 1.1 of the Loan Agreement (as defined below) or otherwise party
thereto from time to time (each a “Lender” and collectively, the “Lenders”) including Oxford in its capacity as a
Lender and CONFORMIS, INC., a Delaware corporation (“ConforMIS”) and IMATX, INC., a California
corporation (“ImaTx” and individually, collectively, jointly and severally with ConforMIS, “Borrower”).
RECITALS
A. Collateral Agent, Lenders and Borrower have entered into that certain Loan and Security Agreement
dated as of January 6, 2017, as amended by that certain First Amendment to Loan and Security Agreement dated as
of March 9, 2017 (as amended from time to time, the “Loan Agreement”).
B. Lenders have extended credit to Borrower for the purposes permitted in the Loan Agreement.
C. Borrower has requested that Collateral Agent and Lenders (i) modify the financial covenant in
Section 6.8 of the Loan Agreement; and (ii) make certain other revisions to the Loan Agreement as more fully set
forth herein.
D. Collateral Agent and Lenders have agreed to modify such covenant, but only to the extent, in
accordance with the terms, subject to the conditions and in reliance upon the representations and warranties set forth
below.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals and other good and valuable consideration, the
receipt and adequacy of which is hereby acknowledged, and intending to be legally bound, the parties hereto agree as
follows:
1. Definitions. Capitalized terms used but not defined in this Amendment shall have the meanings
given to them in the Loan Agreement.
2. Amendment to Loan Agreement.
2.1 Section 13.1 (Definitions). The following term and its respective definition hereby is
amended and restated in its entirety, as applicable, to Section 13.1 of the Loan Agreement as follows:
“Second Draw Period” is the period commencing on date Borrower demonstrates in
writing to the reasonable satisfaction of Collateral Agent that Borrower has achieved (a) trailing six
(6) months Product Revenue of at least Thirty-Eight Million Dollars ($38,000,000.00) (the “Six
Month Term B Revenue Milestone”) and (b) trailing twelve (12) months Product Revenue of at least
Seventy-Nine Million Five Hundred Thousand Dollars ($79,500,000.00) (the “Twelve Month Term
B Revenue Milestone”) and ending on the earliest of (i) June 30, 2017 and (ii) the occurrence of an
Event of Default. For the sake of clarity, the Second Draw Period shall commence on the first
measuring date on which the Six Month Term B Revenue Milestone and the Twelve Month Term
B Revenue Milestone are achieved concurrently.
2.2 Section 6.8 (Financial Covenant). Section 6.8(a) of the Loan Agreement hereby is
amended and restated in its entirety as follows:
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“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:
Trailing six (6) month Product Revenue equal to no less than (i) Thirty Five Million Dollars
($35,000,000.00) from June 30, 2017 through the earlier of (A) the testing date of March 31, 2018
and (B) the date immediately prior to the Funding Date of the Term C Loan; (ii) Thirty-Eight Million
Dollars ($38,000,000.00) from the testing date of April 30, 2018 through the date immediately prior
to the Funding Date of the Term C Loan; and (iii) Thirty Nine Million Dollars ($39,000,000.00)
from the Funding Date of the Term C Loan and at each testing date thereafter.”
3. Limitation of Amendment.
3.1 The amendment set forth in Section 2 above, is 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 or remedy
which Collateral Agent or any Lender may now have or may have in the future under or in connection with any Loan
Document.
3.2 This Amendment shall be construed in connection with and as part of the Loan Documents
and all terms, conditions, representations, warranties, covenants and agreements set forth in the Loan Documents,
except as herein amended, are hereby ratified and confirmed and shall remain in full force and effect.
4. Representations and Warranties. To induce Collateral Agent and Lenders to enter into this
Amendment, Borrower hereby represents and warrants to Collateral Agent and Lenders as follows:
4.1 Immediately after giving effect to this Amendment (a) the representations and warranties
contained in the Loan Documents are true, accurate and complete in all material respects as of the date hereof (except
to the extent such representations and warranties relate to an earlier date, in which case they are true and correct in all
material respects as of such date), and (b) no Event of Default has occurred and is continuing;
4.2 Borrower has the power and authority to execute and deliver this Amendment and to
perform its obligations under the Loan Agreement, as amended by this Amendment;
4.3 The organizational documents of Borrower delivered to Collateral Agent and Lenders on
the Effective Date, or subsequent thereto, remain true, accurate and complete and have not been amended,
supplemented or restated and are and continue to be in full force and effect;
4.4 The execution and delivery by Borrower of this Amendment and the performance by
Borrower of its obligations under the Loan Agreement, as amended by this Amendment, have been duly authorized;
4.5 The execution and delivery by Borrower of this Amendment and the performance by
Borrower of its obligations under the Loan Agreement, as amended by this Amendment, do not and will not contravene
(a) any material Requirement of Law or regulation binding on or affecting Borrower, (b) any material contractual
restriction with a Person binding on Borrower, (c) any order, judgment or decree of any court or other governmental
or public body or authority, or subdivision thereof, binding on Borrower, or (d) the organizational documents of
Borrower;
4.6 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; and
4.7 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
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be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium or other similar laws of general
application and equitable principles relating to or affecting creditors’ rights.
5. Counterparts. This Amendment may be executed in any number of counterparts and all of such
counterparts taken together shall be deemed to constitute one and the same instrument.
6. Effectiveness. This Amendment shall be deemed effective upon (i) the due execution and delivery
to Collateral Agent and Lender of this Amendment by each party hereto, (ii) the funding of the Term B Loan, (iii)
Borrower’s payment of Fifty Thousand Dollars ($50,000.00) as an amendment fee, which has been fully earned and
is non-refundable as of the date of this Amendment, to be shared by the Lenders in accordance with their respective
Pro Rata Shares, and (iv) Borrower’s payment of all Lenders’ Expenses incurred through the date of this Amendment.
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