CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS EXHIBIT MARKED BY [***] HAS BEEN OMITTED BECAUSE IT IS BOTH NOT MATERIAL AND IS THE TYPE OF INFORMATION THAT THE REGISTRANT TREATS AS PRIVATE OR CONFIDENTIAL
FIRST AMENDMENT TO CREDIT AGREEMENT
This FIRST AMENDMENT TO CREDIT AGREEMENT (this “First Amendment”) is entered into as of the First Amendment Closing Date (as defined below) by and between IBIO CDMO LLC, a Delaware limited liability company (“Borrower”), and WOODFOREST NATIONAL BANK, a national banking association, as lender (in such capacity, “Lender”).
A.Borrower and Lender entered into that certain Credit Agreement dated November 1, 2021 (as amended, restated, supplemented or modified from time to time, the “Credit Agreement”).
B.Borrower and Lender have agreed to enter into certain agreements and amendments to certain provisions of the Credit Agreement and the other Loan Documents.
C.Borrower and Lender are willing to enter into the requested agreements and amendments set forth herein, subject to and conditioned upon the terms and conditions set forth in this First Amendment.
NOW, THEREFORE, in consideration of the promises herein contained, the mutual benefits to be derived herefrom and other good and valuable consideration received by each party, and each intending to be legally bound hereby, the parties agree as follows:
“First Amendment” means the First Amendment to Credit Agreement dated as of the First Amendment Closing Date by and between Borrower and Lender.
“First Amendment Closing Date” means October 11, 2022.
“Fraunhofer” means Fraunhofer USA, Inc. a Rhode Island not-for-profit corporation.
“Fraunhofer Letter of Credit” means that certain Irrevocable Standby Letter of Credit [***] dated May 6, 2021 naming Deutsche Bank AG New York Branch, as the Issuer, for the account of Fraunhofer, as the Applicant, in favor of the Parent Guarantor, as the Beneficiary.
“Fraunhofer Settlement Agreement” means that certain Confidential Settlement Agreement and Mutual Release dated April 30, 2021 by and between the Parent Guarantor and Fraunhofer addressing and documenting, among other things, the agreed payment of the Fraunhofer Settlement Amount by Fraunhofer to Parent Guarantor on the date specified therein.
“Fraunhofer Settlement Amount” means the aggregate amount of $5,100,000 as further described in Section 1(c) of the Fraunhofer Settlement Agreement, and, for the avoidance of doubt, referred to as the “Second Installment” in the Fraunhofer Letter of Credit.
(b) Principal payments on the Term Principal Amount in the amount of $250,000 are due and payable on the fifth (5th) day of each month, commencing for the month of October 2022 on the First Amendment Closing Date, and continuing on the fifth (5th) day of each month thereafter through and including the month of March 2023 for a total payment amount of $1,500,000.00. The outstanding Term Principal Amount, and all accrued and unpaid interest thereon, is due and payable in full on the Maturity Date.
(a)(i) Annual Financial Statements. No later than 120 days after the last day of each fiscal year of Parent Guarantor, the audited balance sheet and related statements of income, retained earnings, and cash flows of Parent Guarantor and its Subsidiaries (including Borrower), showing the consolidated financial condition and results of operations of Parent Guarantor and its Subsidiaries (including Borrower) as of the end of and for such fiscal year, in each case setting out in comparative form the figures for the previous fiscal year, all reported on by a firm of independent certified
public accountants of recognized national or regional standing and accompanied by a report from such independent certified public accountants confirming that such consolidated financial statements were prepared in accordance with GAAP consistently applied and present fairly, in all material respects, the consolidated financial condition and results of operations of Parent Guarantor and its Subsidiaries; provided that Borrower shall furnish, or cause to be furnished, to Lender, together with the foregoing deliveries, the statements of income of Borrower as of the end of and for such fiscal year, in Proper Form.
(a)(ii) Interim Financial Statements. Promptly after preparation, and no later than 45 days after the last day of each March, June, September and December, the unaudited balance sheet and related statements of income, retained earnings, and cash flows of Parent Guarantor and its Subsidiaries (including Borrower), prepared by Parent Guarantor, showing the consolidated financial condition and results of operations of Parent Guarantor and its Subsidiaries (including Borrower) as of the end of and for such period and the then-elapsed portion of the fiscal year, in each case setting out in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by a Responsible Officer of Parent Guarantor and, as to its consolidated financial statements, of Borrower as presenting fairly in all material respects the financial condition and result of operations of Parent Guarantor and its Subsidiaries on a consolidated basis in accordance with GAAP consistently applied; provided that Borrower shall furnish, or cause to be furnished, to Lender, together with the foregoing deliveries, the statements of income of Borrower as of the end of and for such fiscal quarter, in Proper Form.
(h) Cash Flow. Every other Friday, commencing on the first Friday after the First Amendment Closing Date, (i) a report detailing cash flow expenditures of Borrower and Parent Guarantor for the two weeks prior to such date and (b) an updated monthly cash flow forecast with respect to Borrower and Parent Guarantor covering the following twelve months from such date, in each case, in Proper Form.
(a)The execution and delivery of this First Amendment and the performance by Borrower of its obligations under this First Amendment are within Borrower’s power, have been duly authorized by all necessary company action, have received all necessary governmental approval (if any shall be required), and do not and will not contravene or conflict with any provision of law or of the Organizational Documents of Borrower or of any agreement binding upon Borrower.
(b)This First Amendment represents the legal, valid and binding obligations of Borrower enforceable against Borrower in accordance with its terms subject as to enforcement only to bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally.
(c)After giving effect to this First Amendment, since the Closing Date, and, solely with respect to the last sentence of Section 7.10 of the Credit Agreement, since delivery of the financial forecast delivered by Borrower to Lender on September 30, 2022, no change, event or state of affairs has occurred and is continuing which would constitute a Potential Default or a Default.
(d) No exhibit or schedule to the Credit Agreement is required to be supplemented, amended or modified in connection with the transactions contemplated by this First Amendment.
[Signature pages follow.]
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to be duly executed on the First Amendment Closing Date.
IBIO CDMO LLC,
a Delaware limited liability company
By: /s/ Robert Lutz
Signature Page to First Amendment to Credit Agreement
WOODFOREST NATIONAL BANK
By: /s/Cameron D. Jones
Cameron D. Jones
Senior Vice President
Signature Page to First Amendment to Credit Agreement
GUARANTOR’S consent and agreement and amendment
As an inducement to Lender to execute, and in consideration of Lender’s execution of, this First Amendment, IBIO, INC., a Delaware corporation (“Guarantor”), hereby consents to this First Amendment, and agrees that this First Amendment shall in no way release, diminish, impair, reduce or otherwise adversely affect the obligations and liabilities of the undersigned under the Guaranty executed November 1, 2021 (as further amended by the Guaranty First Amendment as defined below, the “Guaranty”) executed by Guarantor in connection with the Credit Agreement. Guarantor further represents and warrants to Lender that (a) the representations and warranties in the Guaranty are true and correct in all material respects on and as of the First Amendment Closing Date as though made on such date (except to the extent that such representations and warranties specifically relate to an earlier date), (b) after giving effect to this First Amendment and the Guaranty First Amendment, it is in full compliance with all covenants and agreements contained in the Guaranty, (c) after giving effect to this First Amendment and the Guaranty First Amendment, no Potential Default or Default has occurred and is continuing under the Guaranty and (d) the execution and delivery of this Guarantor’s Consent and Agreement and Amendment are within Guarantor’s power and have been duly authorized by all necessary company action. This Guarantor’s Consent and Agreement and Amendment shall be binding upon Guarantor, and its successors and permitted assigns, and shall inure to the benefit of Lender, and its successors and permitted assigns.
The liquidity covenant contained in Section 18 of the Guaranty is hereby amended, as of the First Amendment Closing Date, as set forth below (herein, the “Guaranty First Amendment”). Section 18, Liquidity, of the Guaranty is hereby amended by amending and restating such section in its entirety to read as follows:
18. Liquidity. Guarantor shall not permit at any time its Unrestricted Cash balance to be less than (a) $7,500,000, or (b) [***] $5,000,000. Such Unrestricted Cash balance requirement shall be tested as of (i) the First Amendment Closing Date, (ii) the last day of each fiscal quarter of Guarantor, commencing with the fiscal quarter ended December 31, 2022, and (iii) at such other times requested by Lender in writing. The Unrestricted Cash balance shall be deposited and maintained in such account(s) agreed to in writing by Guarantor and Lender.
[Signature Page Follows]
a Delaware corporation
By: /s/ Robert Lutz
Chief Financial and Business Officer
Signature Page to Guarantor’s Consent and Agreement and Amendment to
First Amendment to Credit Agreement