Exhibit 4.10
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED (I) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS OR (B) AN OPINION OF COUNSEL, IN A GENERALLY ACCEPTABLE FORM, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR APPLICABLE STATE SECURITIES LAWS OR (II) UNLESS SOLD PURSUANT TO RULE 144 UNDER SAID ACT. NOTWITHSTANDING THE FOREGOING, THE SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN, FINANCING OR INDEBTEDNESS ARRANGEMENT SECURED BY THE SECURITIES.
NOTE
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Lender:Deerfield Partners, L.P. | | |
Principal Amount: $16,666,666.67 | | August 9, 2018 |
FOR VALUE RECEIVED, each of the undersigned, Endologix, Inc., a Delaware corporation, CVD/RMS Acquisition Corp., a Delaware corporation, Nellix, Inc., a Delaware corporation, TriVascular Technologies, Inc., a Delaware corporation, TriVascular, Inc., a California corporation, TriVascular Canada, LLC, a Delaware limited liability company, TriVascular Sales LLC, a Texas limited liability company, and RMS/Endologix Sideways Merger Corp., a Delaware corporation (collectively, the “Borrowers”), hereby unconditionally promises to pay to the Lender set forth above (the “Lender”) the principal amount set forth above, or, if less, the aggregate unpaid principal amount of the Loan (as defined in the Credit Agreement referred to below) of the Lender to the Borrowers, payable at such times and in such amounts as are specified in the Credit Agreement.
The Borrowers promise to pay interest on the outstanding principal amount of the Loan and any overdue interest from and after the Closing Date until such outstanding principal amount of the Loan and any overdue interest are paid in full, payable at such times and at such interest rates as are specified in the Credit Agreement. Demand, diligence, presentment, protest and notice ofnon-payment and protest are hereby waived by each Borrower.
Principal and interest are payable in Dollars to the Lender in the manner set forth in the Credit Agreement.
This Note (this “Note”) is one of the “Notes” referred to in, and is entitled to the benefits of, the Credit Agreement, dated as of August 9, 2018 (as the same may be amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), by and among the Borrowers, the other Credit Parties party thereto, the Lenders party thereto and Deerfield ELGX Revolver, LLC, as agent for the Secured Parties, and the other Security Documents. Capitalized terms used herein without definition are used as defined in the Credit Agreement.
The Credit Agreement, among other things, (a) provides for the making of Loans by the Lender to the Borrowers in an aggregate amount not to exceed at any time outstanding the principal amount set forth above, the indebtedness of the Borrowers resulting from such Loan being evidenced by this Note and (b) contains provisions for acceleration of the maturity of the unpaid principal amount of this Note and the termination of the Revolver Commitments upon the happening of certain stated events and also for prepayments pursuant to Section 2.03 and the other provisions of the Credit Agreement on account of the principal hereof prior to the maturity hereof upon the terms and conditions specified therein.
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