CERTAIN CONFIDENTIAL PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND REPLACED WITH “[***]”. SUCH IDENTIFIED INFORMATION HAS BEEN EXCLUDED FROM THIS EXHIBIT BECAUSE IT IS (I) NOT MATERIAL AND (II) WOULD LIKELY CAUSE COMPETITIVE HARM TO THE COMPANY IF DISCLOSED.
Exhibit 10.1
Execution Version
third AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AND SECURITY AGREEMENT (TERM LOAN)
This THIRD AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AND SECURITY AGREEMENT (TERM LOAN) (this “Agreement”) is made as March 30, 2022, by and among SIENTRA, INC., a Delaware corporation, MIST HOLDINGS, INC., a Delaware corporation (formerly known as Miramar Labs, Inc. and MiraDry Holdings, Inc.), MIST, INC., a Delaware corporation (formerly known as Miramar Technologies, Inc. and MiraDry, Inc.), MIST INTERNATIONAL, INC., a Delaware corporation (formerly known as MiraDry International, Inc.), MIDCAP FINANCIAL TRUST, as Agent (in such capacity, together with its successors and assigns, “Agent”), and the other financial institutions or other entities from time to time parties to the Credit Agreement referenced below, each as a Lender.
RECITALS
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing, the terms and conditions set forth in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Agent, Lenders and Borrowers hereby agree as follows:
[SIGNATURES APPEAR ON FOLLOWING PAGES]
IN WITNESS WHEREOF, intending to be legally bound, and intending that this document constitute an agreement executed under seal, the undersigned have executed this Agreement under seal as of the day and year first hereinabove set forth.
AGENT: MIDCAP FINANCIAL TRUST
By: Apollo Capital Management, L.P.,
its investment manager
By: Apollo Capital Management GP, LLC,
its general partner
By: /s/ Maurice Amsellem (SEAL)
Name: Maurice Amsellem
Title: Authorized Signatory
LENDER: MIDCAP FINANCIAL TRUST
By: Apollo Capital Management, L.P.,
its investment manager
By: Apollo Capital Management GP, LLC,
its general partner
By: /s/ Maurice Amsellem (SEAL)
Name: Maurice Amsellem
Title: Authorized Signatory
LENDER: ELM 2020-3 TRUST
By: Midcap Financial Services Capital Management, LLC, as Servicer
By: /s/ John O’Dea (SEAL)
Name: John O’Dea
Title: Authorized Signatory
ELM 2020-4 TRUST
By: Midcap Financial Services Capital Management, LLC, as Servicer
By: /s/ John O’Dea (SEAL)
Name: John O’Dea
Title: Authorized Signatory
LENDER: | SILICON VALLEY BANK
By: /s/ Kevin Fleischman (SEAL) |
BORROWER: | SIENTRA, INC.
By: /s/ Andy Schmidt (SEAL) MIST HOLDINGS, INC.
By: /s/ Oliver Bennett (SEAL) MIST, INC.
By: /s/ Oliver Bennett (SEAL) MIST INTERNATIONAL, INC. By: /s/ Oliver Bennett (SEAL) |
EXHIBIT A
AMENDED CREDIT AGREEMENT
See attached
EXHIBIT b
AMENDED Annexes, schedules and EXHIBITS TO CREDIT AGREEMENT
See attached.
Annex A to Credit Agreement (Commitment Annex)
Lender | Term Loan Tranche 1 Commitment Amount | Term Loan Tranche 1 Commitment Percentage | Term Loan Tranche 2 Commitment Amount | Term Loan Tranche 2 Commitment Percentage | Term Loan Tranche 3 Commitment Amount | Term Loan Tranche 3 Commitment Percentage | Term Loan Tranche 4 Commitment Amount | Term Loan Tranche 4 Commitment Percentage | Term Loan Tranche 5 Commitment Amount | Term Loan Tranche 5 Commitment Percentage | Term Loan Tranche 6 Commitment Amount | Term Loan Tranche 6 Commitment Percentage |
TOTALS | $13,125,000 | 100.00% | $1,875,000 | 100% | $1,000,000.00 | 100% | $5,000,000.00 | 100% | $5,000,000.00 | 100% | $9,000,000 | 100% |
Exhibit B to Credit Agreement (Form of Compliance Certificate)
COMPLIANCE CERTIFICATE
This Compliance Certificate is given by _____________________, a Responsible Officer of Sientra, Inc., a Delaware corporation (the “Borrower Representative”), pursuant to that certain Second Amended and Restated Credit and Security Agreement (Term Loan), dated as of February 5, 2021 among the Borrower Representative, the other Borrowers from time to time party thereto (collectively, “Borrowers”), MidCap Financial Trust, individually as a Lender and as Agent, and the financial institutions or other entities from time to time parties hereto, each as a Lender (as such agreement may have been amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”). Capitalized terms used herein without definition shall have the meanings set forth in the Credit Agreement.
The undersigned Responsible Officer hereby certifies to Agent and Lenders that:
(a) the financial statements delivered with this certificate in accordance with Section 4.1 of the Credit Agreement fairly present in all material respects the results of operations and financial condition of Borrowers and their Consolidated Subsidiaries as of the dates and the accounting period covered by such financial statements;
(b) the representations and warranties of each Credit Party contained in the Financing Documents are true, correct and complete in all material respects on and as of the date hereof, except to the extent that any such representation or warranty relates to a specific date in which case such representation or warranty
shall be true and correct in all material respects as of such earlier date; provided, however, in each case, such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof;
(c) I have reviewed the terms of the Credit Agreement and have made, or caused to be made under my supervision, a review in reasonable detail of the transactions and conditions of Borrowers and their Consolidated Subsidiaries during the accounting period covered by such financial statements, and such review has not disclosed the existence during or at the end of such accounting period, and I have no knowledge of the existence as of the date hereof, of any condition or event that constitutes a Default or an Event of Default, except as set forth in Schedule 1 hereto, which includes a description of the nature and period of existence of such Default or an Event of Default and what action Borrowers have taken, are undertaking and propose to take with respect thereto;
(d) except as noted on Schedule 2 attached hereto, Schedule 9.2(b) to the Credit Agreement contains a complete and accurate list of all business locations of Borrowers and Guarantors and all names under which Borrowers and Guarantors currently conduct business; Schedule 2 specifically notes any changes in the names under which any Borrower or Guarantors conduct business;
(e) except as noted on Schedule 3 attached hereto, the undersigned has no knowledge of (i) any federal or state tax liens having been filed against any Borrower, Guarantor or any Collateral, or (ii) any failure of any Borrower or any Guarantors to make required payments of withholding or other tax obligations of any Borrower or any Guarantors during the accounting period to which the attached statements pertain or any subsequent period;
(f) Schedule 5.14 to the Credit Agreement contains a complete and accurate statement of all deposit accounts or investment accounts maintained by Borrowers and Guarantors;
(g) except as noted on Schedule 4 attached hereto and Schedule 3.6 to the Credit Agreement, the undersigned has no knowledge of any current, pending or threatened: (i) litigation against the Borrowers or any Guarantors, (ii) inquiries, investigations or proceedings concerning the business affairs, practices, licensing or reimbursement entitlements of Borrowers or any Guarantors, or (iii) default by Borrowers or any Guarantors under any Material Contract to which it is a party;
(h) except as noted on Schedule 5 attached hereto, no Borrower or Guarantor has acquired, by purchase, by the approval or granting of any application for registration (whether or not such application was previously disclosed to Agent by Borrowers) or otherwise, any Intellectual Property that is registered with any United States or foreign Governmental Authority, or has filed with any such United States or foreign Governmental Authority, any new application for the registration of any Intellectual Property, or acquired rights under a license as a licensee with respect to any such registered Intellectual Property (or any such application for the registration of Intellectual Property) owned by another Person, that has not previously been reported to Agent on Schedule 3.17 to the Credit Agreement or any Schedule 5 to any previous Compliance Certificate delivered by Borrower to Agent;
(i) except as noted on Schedule 6 attached hereto, no Borrower or Guarantor has acquired, by purchase or otherwise, any Chattel Paper, Letter of Credit Rights, Instruments, Documents or Investment Property that has not previously been reported to Agent on any Schedule 6 to any previous Compliance Certificate delivered by Borrower Representative to Agent;
(j) except as noted on Schedule 7 attached hereto, no Borrower or Guarantor is aware of any commercial tort claim that has not previously been reported to Agent on any Schedule 7 to any previous Compliance Certificate delivered by Borrower Representative to Agent; and
(l) Borrowers and Guarantor are in compliance with the covenants contained in Article 6 of the Credit Agreement, and in any Guarantee constituting a part of the Financing Documents, as demonstrated by the calculation of such covenants below, except as set forth below; in determining such compliance, the following calculations have been made: [See attached worksheets]. Such calculations and the certifications contained therein are true, correct and complete.
The foregoing certifications and computations are made as of ________________, 202__ (end of month) and as of _____________, 202__.
| Sincerely, SIENTRA, INC. By: |
Schedule 2.1 – Amortization
Term Loan Tranche 1
Commencing on January 1, 2023 (the “Amortization Start Date”) and continuing on the first day of each calendar month thereafter, Borrower shall pay to Agent as a principal payment on the Term Loan Tranche 1 an amount equal to the total principal amount of the Term Loan Tranche 1 made to Borrower divided by eighteen (18), for a eighteen (18) month straight-line amortization of equal monthly principal payments.
Term Loan Tranche 2
Commencing on the Amortization Start Date and continuing on the first day of each calendar month thereafter, Borrower shall pay to Agent as a principal payment on the Term Loan Tranche 2 an amount equal to the total principal amount of the Term Loan Tranche 2 made to Borrower divided by eighteen (18), for a eighteen (18) month straight-line amortization of equal monthly principal payments.
Term Loan Tranche 3
Commencing on the Amortization Start Date, and continuing on the first day of each calendar month thereafter, Borrower shall pay to Agent as a principal payment on the Term Loan Tranche 3 an amount equal to the total principal amount of the Term Loan Tranche 3 made to Borrower divided by eighteen (18), for a eighteen (18) month straight-line amortization of equal monthly principal payments.
Term Loan Tranche 4
Commencing on the Amortization Start Date, and continuing on the first day of each calendar month thereafter, Borrower shall pay to Agent as a principal payment on the Term Loan Tranche 4 an amount equal to the total principal amount of the Term Loan Tranche 4 made to Borrower divided by eighteen (18), for a eighteen (18) month straight-line amortization of equal monthly principal payments.
Term Loan Tranche 5
Commencing on the Amortization Start Date, and continuing on the first day of each calendar month thereafter, Borrower shall pay to Agent as a principal payment on the Term Loan Tranche 5 an amount equal to the total principal amount of the Term Loan Tranche 5 made to Borrower divided by eighteen (18), for a eighteen (18) month straight-line amortization of equal monthly principal payments.
Term Loan Tranche 6
Commencing on the first day of the first full calendar month immediately following the Term Loan Tranche 6 Funding Date and continuing on the first day of each calendar month thereafter, Borrower shall pay to Agent as a principal payment on the Term Loan Tranche 6 an amount equal to the total principal amount of the Term Loan Tranche 6 made to Borrower divided by the number of full calendar months remaining (including such first full calendar month) before the occurrence of the Maturity Date.
Notwithstanding anything to the contrary contained in the foregoing, the entire remaining outstanding principal balance under the Term Loans shall mature and be due and payable upon the Termination Date.
Schedule 6.1 – Minimum Net Revenue
|
|
Defined Period Ending | Minimum Net Revenue Amount |
January 31, 2021 | $[***] |
February 28, 2021 | $[***] |
March 31, 2021 | $[***] |
April 30, 2021 | $[***] |
May 31, 2021 | $[***] |
June 30, 2021 | $[***] |
July 31, 2021 | $[***] |
August 31, 2021 | $[***] |
September 30, 2021 | $[***] |
October 31, 2021 | $[***] |
November 30, 2021 | $[***] |
December 31, 2021 | $[***] |
January 31, 2022 | $[***] |
February 28, 2022 | $[***] |
March 31, 2022 | $[***] |
April 30, 2022 | $[***] |
May 31, 2022 | $[***] |
June 30, 2022 | $[***] |
July 31, 2022 | $[***] |
August 31, 2022 | $[***] |
September 30, 2022 | $[***] |
October 31, 2022 | $[***] |
November 30, 2022 | $[***] |
December 31, 2022 | $[***] |
January 31, 2023 and thereafter | In accordance with Section 6.1. |