LIMITED WAIVER AND AMENDMENT NO. 4 TO CREDIT AND SECURITY AGREEMENT
EXHIBIT 10.1
Execution Version
LIMITED WAIVER AND AMENDMENT NO. 4 TO CREDIT AND SECURITY AGREEMENT
This LIMITED WAIVER AND AMENDMENT NO. 4 TO CREDIT AND SECURITY AGREEMENT (this “Agreement”)
is made as of this 20th day of February, 2024 (“Effective Date”), by and among STRATA SKIN SCIENCES, INC.,
a Delaware corporation (together with each of its subsidiaries that hereafter becomes a party to this Agreement, the “Borrower”), MIDCAP FINANCIAL TRUST, as Agent for Lenders (in such capacity and together with its permitted successors and assigns, the “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
A. Agent, ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ have
entered into that certain Credit and Security Agreement, dated as of September 30, 2021 (as amended by that certain Limited Consent and Amendment No. 1 to Credit and Security Agreement, dated as of January 10, 2022, that certain Amendment No. 2
to Credit and Security Agreement, dated as of September 6, 2022 and that certain Amendment No. 3 to Credit and Security Agreement, dated as of June 30, 2023 and as further amended, restated, supplemented or otherwise modified from time to time
prior to the date hereof, the “Existing Credit Agreement” and the Existing Credit Agreement, as
amended hereby, the “Credit Agreement”), pursuant to which the Lenders have agreed to make certain advances of money and to extend certain financial accommodations to
Borrower in the amounts and manner set forth in the Credit Agreement.
▇. ▇▇▇▇▇▇▇▇ has requested, and Agent and
▇▇▇▇▇▇▇ have agreed, to enter into this Agreement, all in accordance with the terms and subject to the conditions set forth herein.
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 the Borrower hereby agree as follows:
1. Recitals; Construction. This Agreement shall constitute a Financing Document and the Recitals and each reference to the Credit Agreement, unless otherwise expressly
noted, will be deemed to reference the Credit Agreement as modified hereby. Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to them in the Credit Agreement (including those capitalized terms used in the
Recitals hereto).
2. Limited Waiver. An Event of Default has occurred under Section 10.1(c) of the Existing Credit Agreement due to Borrower’s Net Revenue for the Defined Period ending
December 31, 2023 being less than the Applicable Minimum Net Revenue Threshold for such Defined Period in violation of the financial covenant in Section 9.1 of the Existing Credit Agreement (the “Subject Event of Default”). Subject to the satisfaction of the conditions set forth in Section
5 below, and in reliance on the representations and warranties contained in Section 4 below, Agent and the Lenders hereby waive the Subject Event of Default. The
limited waiver set forth in this Section 2 is effective solely for the purposes set forth herein and shall be limited precisely as written and shall not, except as expressly provided
herein, be deemed to (a) be a consent to any amendment, waiver or modification of any term or condition of the Credit Agreement or of any other Financing Document; (b) prejudice any right that Agent or Lenders have or may have in the future
under or in connection with the Credit Agreement or any other Financing Document; (c) constitute a consent to or waiver of any past, present or future Default or Event of Default (other than the Subject Events of Default) or other violation of
any provisions of the Credit Agreement or any other Financing Documents; (d) create any obligation to forbear from taking any enforcement action, or to make any further extensions of credit; or (e) establish a custom or course of dealing among
any of the Credit Parties, on the one hand, or Agent or any Lender, on the other hand.
MidCap / Strata / Amendment No. 4
3. Amendments to Existing Credit Agreement. Subject to the terms and conditions of this Agreement, including, without limitation, the conditions to effectiveness set forth
in Section 5 below, the Existing Credit Agreement is hereby amended as follows:
(a) The following
definition of “Fourth Amendment Effective Date” is hereby added to Section 15 of the Existing Credit Agreement in the appropriate alphabetical order therein:
“Fourth Amendment Effective Date” means February 20,
2024.
(b) The definition of
“Applicable Minimum Net Revenue Threshold” in Section 15 of the Existing Credit Agreement is hereby amended by deleting such definition in its entirety and replacing it with the following:
“Applicable Minimum Net Revenue Threshold” means (i) for each Defined Period
ending on or before December 31, 2026, the minimum Net Revenue amount set forth on the Minimum Net Revenue Schedule attached hereto for such Defined Period and (ii) for each
Defined Period ending after December 31, 2026, a minimum Net Revenue amount for such Defined Period to be determined by Agent, in good faith on or prior to March 5th of the year in which such Defined Period ends, in consultation with Borrower,
based upon the most recent financial information and projections provided by Borrower pursuant to Section 6.2 of this Agreement; provided that in no event shall the minimum Net Revenue amount for any such Defined Period under this clause (ii) be
less than an amount equal to the greater of (x) the applicable minimum Net Revenue amount for the immediately preceding date the financial covenant in Section 9.1 was tested, and (y) $33,000,000.
(c) The Credit Facility
Schedule for each Credit Facility, is hereby amended by replacing the references to the “Third Amendment Effective Date” with references to the “Fourth Amendment Effective Date” in the “Applicable Prepayment Fee” section of each such Credit
Facility Schedule.
(d) The Minimum Net
Revenue Schedule attached to the Existing Credit Agreement is hereby amended by deleting such Minimum Net Revenue Schedule in its entirety and replacing it with the Minimum Net Revenue Schedule attached to this Agreement as Schedule 1.
4. Representations and Warranties; Reaffirmation of Security Interest. Each Credit Party hereby confirms that all of the representations and warranties set forth in the
Credit Agreement are true and correct in all material respects (without duplication of any materiality qualifier in the text of such representation or warranty) with respect to such Credit Party 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. Each Credit Party reaffirms its obligations under each
Security Document to which it is a party, and confirms and agrees that all security interests and ▇▇▇▇▇ granted to the Agent continue in full force and effect. Nothing herein is intended to impair or limit the validity, priority or extent of
Agent’s security interests in and Liens on the Collateral. Each Credit Party acknowledges and agrees that the Credit Agreement, the other Financing Documents and this Agreement constitute the legal, valid and binding obligation of such Credit
Party, and are enforceable against such Credit Party in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency or other similar laws relating to the enforcement of creditors’ rights generally
and by general equitable principles.
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5. Conditions to Effectiveness. This Agreement shall become effective as of the date on which each of the following conditions has been satisfied, as determined by Agent
in its sole discretion:
(a) Agent shall have
received a duly authorized, executed and delivered counterpart of the signature page to this Agreement from Borrower, Agent and the Lenders;
(b) Agent shall have
received a fully executed copy of that certain Second Amended and Restated Fee Letter;
(c) all
representations and warranties of Borrowers contained herein shall be true and correct in all material respects (without duplication of any materiality qualifier in the text of such representation or warranty) 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 (or, in the case of any representation or warranty that is, by its
terms, qualified by materiality, in all respects) as of such earlier date (and such parties’ delivery of their respective signatures hereto shall be deemed to be its certification thereof);
(d) prior to (except
with respect to the Subject Event of Default) and after giving effect to the agreements set forth herein, no Default or Event of Default shall exist under any of the Financing Documents; and
(e) the Borrowers
shall have delivered such other documents, information, certificates, records, permits and filings as Agent may reasonably request.
6. Costs and Fees. Borrowers shall be responsible for the payment of all reasonable, documented and invoiced out-of-pocket costs and fees of Agent’s counsel incurred in
connection with the preparation, negotiation, execution and delivery of this Agreement and any related Financing Documents.
7. Release. In consideration of the agreements of Agent and Lenders contained herein and for other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, each Credit Party, voluntarily, knowingly, unconditionally and irrevocably, with specific and express intent, for and on behalf of itself and all of its respective parents, subsidiaries, affiliates, members, managers,
predecessors, successors, and assigns, and each of their respective current and former directors, officers, shareholders, agents, and employees, and each of their respective predecessors, successors, heirs, and assigns (individually and
collectively, the “Releasing Parties”) does hereby fully and completely release, acquit and forever discharge each of Agent, Lenders, and each their respective parents,
subsidiaries, affiliates, members, managers, shareholders, directors, officers and employees, and each of their respective predecessors, successors, heirs, and assigns (individually and collectively, the “Released Parties”), of and from any and all actions, causes of action, suits, debts, disputes, damages, claims, obligations, liabilities, costs, expenses and demands of any kind whatsoever, at law or in
equity, whether matured or unmatured, liquidated or unliquidated, vested or contingent, ▇▇▇▇▇▇ or inchoate, known or that reasonably should have been known that the Releasing Parties (or any of them) has against the Released Parties or any of
them (whether directly or indirectly), based in whole or in part on facts, known or that reasonably should have been known, existing on or before the date hereof. Each Credit Party acknowledges that the foregoing release is a material
inducement to Agent’s and each ▇▇▇▇▇▇’s decision to enter into this Agreement and agree to the modifications contemplated hereunder, and has been relied upon by Agent and ▇▇▇▇▇▇▇ in connection therewith.
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8. No Waiver or Novation. The execution, delivery and effectiveness of this Agreement shall not operate as a waiver of any right, power or remedy of Agent, nor constitute
a waiver of any provision of the Credit Agreement, the Financing Documents or any other documents, instruments and agreements executed or delivered in connection with any of the foregoing. Nothing herein is intended or shall be construed as a
waiver of any existing Defaults or Events of Default under the Credit Agreement or other Financing Documents or any of Agent’s rights and remedies in respect of such Defaults or Events of Default (other than with respect to the Subject Event of
Default). This Agreement (together with any other document executed in connection herewith) is not intended to be, nor shall it be construed as, a novation of the Credit Agreement.
9. Affirmation. Except as specifically amended pursuant to the terms hereof, each Credit Party hereby acknowledges and agrees that the Existing Credit Agreement and all
other Financing Documents (and all covenants, terms, conditions and agreements therein) shall remain in full force and effect, and are hereby ratified and confirmed in all respects by such Credit Party, including without limitation the granting
of Liens in the Collateral to secure the Obligations and other Financing Documents. Each Credit Party covenants and agrees to comply with all of the terms, covenants and conditions of the Credit Agreement and the other Financing Documents,
notwithstanding any prior course of conduct or other actions or inactions on Agent’s or any Lender’s part which might otherwise constitute or be construed as a waiver of or amendment to such terms, covenants and conditions. Each Credit Party
confirms and agrees that all security interests and ▇▇▇▇▇ granted to Agent pursuant to the Financing Documents continue in full force and effect, and all Collateral remains free and clear of any Liens, other than those granted to Agent and
Permitted Liens.
10. Miscellaneous.
(a) Reference to the Effect on the Credit Agreement. The Credit Agreement, and all other Financing Documents (and all covenants, terms, conditions and agreements therein), shall remain in full
force and effect, and are hereby ratified and confirmed in all respects by each Credit Party.
(b) THIS AGREEMENT AND
THE RIGHTS, REMEDIES AND OBLIGATIONS OF THE PARTIES HERETO, AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS AGREEMENT, THE RELATIONSHIP OF THE PARTIES, AND/OR THE INTERPRETATION AND ENFORCEMENT OF THE RIGHTS AND DUTIES OF
THE PARTIES AND ALL OTHER MATTERS RELATING HERETO OR ARISING THEREFROM (WHETHER SOUNDING IN CONTRACT LAW, TORT LAW OR OTHERWISE), SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REFERENCE TO ITS CONFLICT OF LAW PROVISIONS (OTHER THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW). NOTWITHSTANDING THE FOREGOING, AGENT AND LENDERS SHALL HAVE THE RIGHT TO BRING ANY ACTION OR PROCEEDING AGAINST EACH CREDIT PARTY OR ITS
PROPERTY IN THE COURTS OF ANY OTHER JURISDICTION WHICH AGENT AND LENDERS (IN ACCORDANCE WITH THE PROVISIONS OF SECTION 12.1 OF THE CREDIT AGREEMENT) DEEM NECESSARY OR APPROPRIATE TO REALIZE ON THE COLLATERAL OR TO OTHERWISE ENFORCE AGENT’S AND
LENDERS’ RIGHTS AGAINST SUCH CREDIT PARTY OR ITS PROPERTY. EACH CREDIT PARTY EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN ANY SUCH COURT, AND EACH CREDIT PARTY HEREBY WAIVES ANY OBJECTION
THAT IT MAY HAVE BASED UPON LACK OF PERSONAL JURISDICTION, IMPROPER VENUE, OR FORUM NON CONVENIENS AND HEREBY CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY SUCH COURT. EACH CREDIT PARTY HEREBY WAIVES
PERSONAL SERVICE OF THE SUMMONS, COMPLAINTS, AND OTHER PROCESS ISSUED IN SUCH ACTION OR SUIT AND AGREES THAT SERVICE OF SUCH SUMMONS, COMPLAINTS, AND OTHER PROCESS MAY BE MADE BY REGISTERED OR CERTIFIED MAIL ADDRESSED TO THE APPLICABLE CREDIT
PARTY AT THE ADDRESS SET FORTH IN ARTICLE 11 OF THE CREDIT AGREEMENT AND THAT SERVICE SO MADE SHALL BE DEEMED COMPLETED UPON THE EARLIER TO OCCUR OF SUCH CREDIT PARTY’S ACTUAL RECEIPT THEREOF OR THREE (3) DAYS AFTER DEPOSIT IN THE U.S. MAIL,
PROPER POSTAGE PREPAID.
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(c) TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EACH CREDIT PARTY, AGENT AND LENDERS PARTY HERETO EACH WAIVE THEIR RIGHT TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION ARISING OUT
OF OR BASED UPON THIS AGREEMENT OR ANY CONTEMPLATED TRANSACTION, INCLUDING CONTRACT, TORT, BREACH OF DUTY AND ALL OTHER CLAIMS. THIS WAIVER IS A MATERIAL INDUCEMENT FOR BOTH PARTIES TO ENTER INTO THIS AGREEMENT. EACH PARTY HAS REVIEWED THIS
WAIVER WITH ITS COUNSEL.
(d) Incorporation of Credit Agreement Provisions. The provisions contained in Section 12.2(b) (California Waivers), Section 12.3 (California Waiver) and Section 13.2 (Indemnification) of the Credit Agreement are incorporated herein by reference to the same extent as
if reproduced herein in their entirety.
(e) Headings. Section headings in this Agreement are included for convenience of reference only and shall not constitute a part of this Agreement for any other purpose.
(f) Counterparts. This Agreement may be executed in any number of counterparts and by different parties on separate counterparts, each of which, when executed and delivered, is an original,
and all taken together, constitute one Agreement. Delivery of an executed signature page of this Agreement by facsimile transmission or electronic transmission shall be as effective as delivery of a manually executed counterpart hereof. In
furtherance of the foregoing, the words “execution”, “signed”, “signature”, “delivery” and words of like import in or relating to any document to be signed in connection with this Agreement and the transactions contemplated hereby or thereby
shall be deemed to include Electronic Signatures, deliveries or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof
or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic
Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act. As used herein, “Electronic Signature” means an electronic sound, symbol, or process attached to, or associated with, a contract or
other record and adopted by a Person with the intent to sign, authenticate or accept such contract or other record.
(g) Entire Agreement. This Agreement constitutes the entire agreement and understanding among the parties hereto and supersedes any and all prior agreements and understandings, oral or
written, relating to the subject matter hereof.
(h) Severability. In case any provision of or obligation under this Agreement shall be invalid, illegal or unenforceable in any applicable jurisdiction, the validity, legality and
enforceability of the remaining provisions or obligations, or of such provision or obligation in any other jurisdiction, shall not in any way be affected or impaired thereby.
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(i) Successors/Assigns. This Agreement shall bind, and the rights hereunder shall inure to, the respective successors and assigns of the parties hereto, subject to the provisions of the
Credit Agreement and the other Financing Documents.
[SIGNATURES APPEAR ON FOLLOWING PAGES]
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IN WITNESS WHEREOF, intending to be legally bound, the undersigned have executed this Agreement as of the day and year first hereinabove set forth.
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AGENT:
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MIDCAP FINANCIAL TRUST
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By:
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Apollo Capital Management, L.P.,
its investment manager
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By:
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Apollo Capital Management GP, LLC,
its general partner
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By:
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/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | ||
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Name:
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Title:
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Authorized Signatory
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Signature Page(s)
MidCap / Strata / Amendment No. 4
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LENDERS:
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MIDCAP FINANCIAL TRUST
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By:
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Apollo Capital Management, L.P.,
its investment manager
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By:
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Apollo Capital Management GP, LLC,
its general partner
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By:
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/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | ||
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Name:
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Title:
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Authorized Signatory
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Signature Page(s)
MidCap / Strata / Amendment No. 4
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LENDERS:
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MIDCAP FUNDING XLIX TRUST
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By:
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Apollo Capital Management, L.P.,
its investment manager
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By:
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Apollo Capital Management GP, LLC,
its general partner
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By:
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/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | ||
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Name:
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Title:
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Authorized Signatory
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Signature Page(s)
MidCap / Strata / Amendment No. 4
| LENDERS: |
ELM 2020-3 TRUST
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By: |
MidCap Financial Services Capital Management,
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By: | /s/ ▇▇▇▇ ▇’▇▇▇ | |
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Name: | ▇▇▇▇ ▇’▇▇▇ | |
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Title: | Authorized Signatory | |
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ELM 2020-4 TRUST | ||
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MidCap Financial Services Capital Management,
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| LLC, as Servicer | |||
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By: | /s/ ▇▇▇▇ ▇’▇▇▇ | |
| Name: | ▇▇▇▇ ▇’▇▇▇ | ||
| Title: | Authorized Signatory | ||
Signature Page(s)
MidCap / Strata / Amendment No. 4
BORROWER:
Schedule 1
MINIMUM NET REVENUE SCHEDULE
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Defined Period Ending
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Minimum Net Revenue
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September 30, 2021
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$
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24,000,000.00
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December 31, 2021
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$
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25,000,000.00
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March 31, 2022
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$
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25,500,000.00
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June 30, 2022
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$
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26,000,000.00
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September 30, 2022
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$
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27,000,000.00
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December 31, 2022
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$
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28,000,000.00
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March 31, 2023
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$
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28,500,000.00
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June 30, 2023
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$
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29,000,000.00
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September 30, 2023
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$
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33,000,000.00
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December 31, 2023
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$
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36,000,000.00
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March 31, 2024
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$
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29,000,000.00
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June 30, 2024
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$
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29,250,000.00
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September 30, 2024
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$
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29,500,000.00
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December 31, 2024
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$
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30,000,000.00
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March 31, 2025
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$
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30,500,000.00
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June 30, 2025
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$
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31,000,000.00
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September 30, 2025
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$
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31,500,000.00
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December 31, 2025
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$
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32,000,000.00
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March 31, 2026
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$
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32,250,000.00
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June 30, 2026
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$
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32,500,000.00
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September 30, 2026
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$
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32,750,000.00
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December 31, 2026
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$
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33,000,000.00
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MidCap / Strata / Amendment No. 4