CERTAIN IDENTIFIED INFORMATION HAS BEEN EXCLUDED FROM THIS EXHIBIT BECAUSE IT IS BOTH (I) NOT MATERIAL AND (II) IS THE TYPE THAT THE REGISTRANT TREATS AS PRIVATE OR CONFIDENTIAL. OMISSIONS ARE DESIGNATED [***].
Exhibit 10.28
SECOND AMENDMENT TO CREDIT AGREEMENT
This SECOND AMENDMENT TO CREDIT AGREEMENT (this “Amendment”) is made and entered into as of January 31, 2024 by and among VERRICA PHARMACEUTICALS INC., a Delaware corporation (the “Borrower”), the Lenders party hereto (the “Lenders”), and ORBIMED ROYALTY & CREDIT OPPORTUNITIES IV, LP, as administrative agent for the Lenders (together with its Affiliates, successors, transferees and assignees, the “Administrative Agent”).
WHEREAS, the Borrower, the Lenders and the Administrative Agent entered into a Credit Agreement, dated as of July 26, 2023 (as amended by that First Amendment to Credit Agreement, dated as of December 20, 2023, the “Existing Credit Agreement”; the Existing Credit Agreement as amended by this Amendment and as may be further amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), pursuant to which the Lenders have extended credit to the Borrower on the terms set forth therein;
WHEREAS, pursuant to Section 10.1 of the Credit Agreement, the Credit Agreement may be amended by an instrument in writing signed by the Borrower and the Lenders and acknowledged by the Administrative Agent;
WHEREAS, the Borrower and the Lenders desire to amend certain provisions of the Existing Credit Agreement as provided in this Amendment.
NOW, THEREFORE, in consideration of the mutual agreements herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
“Second Amendment Fee” is defined in Section 3.12.
SECTION 3.12 Second Amendment Fee. If [***], the Borrower shall pay to the Administrative Agent, for the account of each Lender on a pro rata basis, a fee (the “Second Amendment Fee”) in an aggregate amount equal to $250,000, which, if
required to be paid under this Section 3.12, shall be fully earned on February 29, 2024, and payable on March 1, 2024.
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A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release, and that if known by him or her, would have materially affected his or her settlement with the debtor or released party.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their respective officers thereunto duly authorized as of the day and year first above written.
VERRICA PHARMACEUTICALS INC. as the Borrower | |
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By: | /s/ Terry Kohler |
Name: | Terry Kohler |
Title: | Chief Financial Officer |
[Signature Page to Second Amendment to Credit Agreement]
ORBIMED ROYALTY & CREDIT OPPORTUNITIES IV, LP, as a Lender | ||
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By: | OrbiMed ROF IV LLC, its General Partner | |
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| By: | OrbiMed Advisors LLC, its Managing Member |
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By: /s/ Matthew Rizzo | ||
Name: Matthew Rizzo | ||
Title: Member |
ORBIMED ROYALTY & CREDIT OPPORTUNITIES IV OFFSHORE, LP, as a Lender | ||
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By: |
| OrbiMed ROF IV LLC, its General Partner |
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| By: | OrbiMed Advisors LLC, its Managing Member |
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By: /s/ Matthew Rizzo | ||
Name: Matthew Rizzo | ||
Title: Member |
[Signature Page to Second Amendment to Credit Agreement]
ACKNOWLEDGED BY: | ||
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ORBIMED ROYALTY & CREDIT OPPORTUNITIES IV, LP as the Administrative Agent | ||
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By: | OrbiMed ROF IV LLC, its General Partner | |
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| By: | OrbiMed Advisors LLC, its Managing Member |
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By: /s/ Matthew Rizzo | ||
Name: Matthew Rizzo | ||
Title: Member |
[Signature Page to Second Amendment to Credit Agreement]