This FIRST AMENDMENT (this Amendment) is entered into as of June 28, 2019, by and among MELINTA THERAPEUTICS, INC., a Delaware corporation (the Borrower), the other Loan Parties party hereto and the Lenders party hereto.
W I T N E S S E T H:
WHEREAS, the Borrower, the other Loan Parties party thereto and the Lenders party thereto are parties to that certain Second Amended and Restated Senior Subordinated Convertible Loan Agreement, originally dated as of December 31, 2018 and as amended and restated as of January 14, 2019 and February 22, 2019 (as amended, restated, supplemented or otherwise modified from time to time, the Loan Agreement); and
WHEREAS, the Borrower has requested that the Lenders amend certain provisions of the Loan Agreement to extend the drawing period for the First Subsequent Disbursement and the Second Subsequent Disbursement until October 31, 2019, and, subject to the satisfaction of the conditions set forth herein, the Lenders are willing to do so, on the terms set forth herein.
NOW, THEREFORE, in consideration of the mutual agreements, provisions and covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
SECTION 1. Defined Terms. Capitalized terms used herein (including in the preamble and recitals above) but not otherwise defined herein shall have the respective meanings ascribed to such terms in the Loan Agreement.
SECTION 2. Amendments of the Loan Agreement. Subject to, and effective immediately upon, the satisfaction (or waiver by all of the Lenders) of the conditions precedent set forth in Section 3 hereof (the date all such conditions are first satisfied or waived being referred to as the First Amendment Effective Date), the Loan Agreement shall be hereby amended as follows:
(a) The definition of Permitted Indebtedness in Section 1.1 of the Loan Agreement shall be hereby amended to amend and restate clause (m) thereof as follows:
(m) Indebtedness in respect of a revolving credit facility in an aggregate principal amount not to exceed $22,000,000 (the Revolving Credit Facility), so long as (i) no Subsidiary of the Borrower that is not a Loan Party shall be the borrower, a guarantor, obligor or otherwise obligated thereunder, (ii) the lenders providing the Revolving Credit Facility are third parties that are not (A) a Loan Party, (B) a Lender, (C) a lender under the Senior Facility Agreement, (D) any Person set forth on Schedule 1.1 or (E) any Affiliate or Subsidiary of any of the foregoing; and (iii) only one Revolving Credit Facility may be in effect or exist at any time; and