CHRS 8-K
Coherus Oncology, Inc. (CHRS)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
(Exact name of registrant as specified in its charter)
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Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) | |
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) | |
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act:
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Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 1.01 Entry into a Material Definitive Agreement
Senior Secured Term Loan
On August 12, 2026, Coherus Oncology, Inc. (the “Company”), together with certain wholly owned subsidiaries of the Company (collectively with the Company, the “Borrowers”), entered into a Loan and Security Agreement (the “Loan Agreement”) with Innovatus Life Sciences Lending Fund I, LP, as collateral agent (in such capacity, the “Collateral Agent”), and the other lenders signatory thereto (collectively, the “Lenders”), pursuant to which the Lenders agreed to provide a senior secured term loan facility of $55,000,000 (the “Tranche A Term Loan”) with a maturity in August 2031.
The Company believes that rolling over its senior debt under the Prior Loan Agreement (as defined below) with a limited incremental increase in principal provides several benefits - the most important being extending the maturity of the Company’s outstanding debt beyond the anticipated launch periods for the Company’s pipeline product candidates. The limited incremental increase in the facility size is also expected to provide greater financial flexibility to support strategic initiatives. Lastly, as described below, the interest rate under the Loan Agreement is lower than that under the Prior Loan Agreement.
The amounts borrowed under the Loan Agreement accrue interest at a floating per annum rate equal to 4.15% plus the greater of (i) the Prime Rate and (ii) 6.75%. The Loan Agreement provides for interest-only payments on a monthly basis for an initial period of 36 months following the initial funding date, which interest-only period may be extended to 48 months if the Borrowers achieve specified revenue and market capitalization milestones prior to the 36-month anniversary of such funding date. Following the interest-only period, the Borrowers will make consecutive equal monthly payments of principal, together with interest in arrears, over the remaining term of the Loan Agreement.
The Company has the option, but not the obligation, to draw one or more additional tranches of $25,000,000 and $20,000,000, respectively, under certain conditions (together with the Tranche A Term Loan, collectively, the “Term Loans”).
On August 14, 2026 (“Term A Funding Date”), the Company drew the full amount of the Tranche A Term Loan under the Loan Agreement. A portion of the Tranche A Term Loan proceeds was used to repay all obligations under the Company’s existing senior secured term loan facility (the “Prior Loan Agreement”), which accrued interest at a rate equal to 8.0%, plus a three-month SOFR rate per annum, and was scheduled to mature in May 2029. The remainder of the Tranche A Term Loan proceeds are to be used for working capital of the Company and to fund general business requirements.
The Company may prepay the Term Loans in full or in part. All prepayments prior to the maturity date will be subject to a prepayment fee of (w) 5.00% of the principal amount of the Term Loans so prepaid, plus the amount of interest that would have accrued on such prepaid amount through the first anniversary of the Term A Funding Date, if paid on or prior to such first anniversary; (x) 4.00% of the principal amount of the Term Loans so prepaid if paid after the first anniversary and on or prior to the second anniversary of the Term A Funding Date; (y) 3.00% of the principal amount of the Term Loans so prepaid if paid after the second anniversary and on or prior to the third anniversary of the Term A Funding Date; and (z) 0.00% of the principal amount of the Term Loans so prepaid if paid after the third anniversary of the Term A Funding Date. Upon the earliest to occur of (i) the maturity date, (ii) the acceleration of the Term Loans or (iii) the prepayment of the Term Loans, the Company is also required to pay a final fee in an amount equal to 4.00% of the aggregate principal amount of the Term Loans funded under the Loan Agreement (or, in the event of a partial voluntary prepayment, the aggregate principal amount of the Term Loans subject to such prepayment). Such final fee will increase to 10.00% if the Company begins an insolvency proceeding and receives debtor-in-possession financing from certain financiers.
The Borrowers are required to pay a facility fee equal to 1.50% of the aggregate principal amount of each Term Loan funded on the applicable funding date.
The Term Loans are secured by a lien on substantially all of the assets of the Borrowers, including intellectual property, subject to certain exclusions and exceptions. The Loan Agreement contains customary representations and
warranties, covenants and events of default, including a financial covenant requiring the Borrowers to maintain certain minimum levels of unrestricted cash in collateral accounts. The Loan Agreement also contains other customary provisions, such as expense reimbursement, as well as indemnification rights for the benefit of the Collateral Agent and the Lenders.
The foregoing description of the material terms of the Loan Agreement is qualified in its entirety by the full terms and conditions of the Loan Agreement, which is filed as Exhibit 10.1 to this Current Report on Form 8-K.
Item 1.02Termination of a Material Definitive Agreement.
As described above, on August 14, 2026, the Company repaid all outstanding amounts due under the Prior Loan Agreement. The Prior Loan Agreement was terminated on the same date and all security interests securing amounts borrowed under the Prior Loan Agreement were released and all obligations of the Company under the Prior Loan Agreement were terminated, except those obligations expressly specified in the Prior Loan Agreement as surviving the termination.
Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
See the disclosure set forth above under Item 1.01, which disclosure is incorporated by reference into this Item 2.03.
Item 9.01 Financial Statements and Exhibits.
Exhibit No. | Description | |||||||
10.1 | ||||||||
104 | Cover Page Interactive Data File, formatted in Inline XBRL. | |||||||
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Date: August 17, 2026 | | COHERUS ONCOLOGY, INC. | |
By: | /s/ Dennis M. Lanfear | ||
Name: | Dennis M. Lanfear | ||
Title: | Chief Executive Officer | ||
Exhibit 10.1
Certain identified information has been excluded from this exhibit because it is both not material and is the type that the registrant treats as private or confidential. Information that was omitted has been noted in this document with a placeholder identified by the mark “[***]”.
LOAN AND SECURITY AGREEMENT
dated as of August 12, 2026
by and among
INNOVATUS LIFE SCIENCES LENDING FUND I, LP,
as Collateral Agent,
COHERUS ONCOLOGY, INC.,
COHERUS INTERMEDIATE CORP,
SURFACE ONCOLOGY, LLC, and
INTEKRIN THERAPEUTICS INC.
as co-Borrowers,
and
The Lenders listed on Schedule 1.1 hereof
or otherwise a party hereto from time to time
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Table of Contents
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Table of Contents
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SCHEDULES, EXHIBITS AND ANNEXES
Schedule 1.1– Lenders and Commitments
Schedule 2– Non-Core Assets
Schedule 6.13– Liquidity Covenant
Schedule 6.14– Post-Closing Obligations
Exhibit A – Description of Collateral
Exhibit B-1 – Loan Payment Request Form
Exhibit B-2 – Form of Disbursement Letter
Exhibit C – Compliance Certificate
Exhibit D– Form of Secured Promissory Note
Exhibit E – Form of Corporate Borrowing Certificate
Annex I – Collateral Agent and Lender Terms
Annex Y –Loan Interest Rate and Payment of Principal
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LOAN AND SECURITY AGREEMENT
THIS LOAN AND SECURITY AGREEMENT (as the same may be amended, restated, modified, or supplemented from time to time, this “Agreement”), dated as of August 12, 2026, among INNOVATUS LIFE SCIENCES LENDING FUND I, LP, a Delaware limited partnership, as collateral agent (“Innovatus”, and in such capacity, together with its successors and assigns in such capacity, “Collateral Agent”), the Lenders listed on Schedule 1.1 hereof or otherwise a party hereto from time to time including INNOVATUS LIFE SCIENCES LENDING FUND I, LP, in its capacity as a Lender, COHERUS ONCOLOGY, INC., a Delaware corporation (“Parent”), COHERUS INTERMEDIATE CORP, a Delaware corporation, SURFACE ONCOLOGY, LLC, a Delaware limited liability company, and INTEKRIN THERAPEUTICS INC., a Delaware corporation (individually and collectively, jointly and severally, “Borrower”), provides the terms on which the Lenders shall lend to Borrower and Borrower shall repay the Lenders. The parties agree as follows:
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Notwithstanding anything herein to the contrary, Borrower shall also have the option to prepay part of the Term Loans advanced by the Lenders under this Agreement, provided Borrower (i) provides written notice to Collateral Agent of its election to prepay the Term Loans [***] to such prepayment, (ii) prepays such part of the Term Loans in a [***] or a whole multiple [***], (iii) there has not already been a partial prepayment made in the same calendar month, and (iv) pays to the Lenders on the date of such prepayment, payable to each Lender in accordance with its respective Pro Rata Share, an amount equal to the sum of (A) the portion of outstanding principal of such Term Loans plus all accrued and unpaid interest thereon through the prepayment date, (B) the Final Fee with respect to the portion of such Term Loans being prepaid, (C) the applicable Prepayment Fee with respect to the portion of such Term Loans being prepaid, plus (D) all other Obligations that are then due and payable, including, without limitation, Lenders’ Expenses and interest at the Default Rate with respect to any past due amounts. For the purposes of clarity, any partial prepayment shall be applied pro-rata to all outstanding amounts under each Term Loan, and shall be applied pro-rata within each Term Loan tranche to reduce amortization payments under Section 2.2(b) on a pro-rata basis.
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Without limiting the generality of the foregoing, it is understood and agreed that if the Obligations are accelerated for any reason, including but not limited to, because of default, the adoption of a corporate resolution approving the commencement of any Insolvency Proceeding, the commencement of any Insolvency Proceeding, a sale, a disposition or an encumbrance (including that by operation of law or otherwise), the Final Fee and Prepayment Fee, if any,
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determined as of the date of acceleration will also be due and payable as though said indebtedness was voluntarily prepaid as of such date and shall constitute part of the Obligations, in light of the impracticability and extreme difficulty of ascertaining actual damages and by mutual agreement of the parties as to a reasonable calculation of each Lender’s lost profits, transaction costs and other potential damages as a result thereof.
Any Final Fee or Prepayment Fee payable hereunder shall be presumed to be the liquidated damages sustained by each Lender and the Borrower agrees that it is reasonable under the circumstances currently existing, including, without limitation, damages for transaction costs and the inability, if any, to reinvest in similar loans or other debt investments. The Final Fee and the Prepayment Fee, if any, shall also be payable (i) in the event the Obligations (and/or this Agreement or any other Loan Document evidencing the Obligations) are satisfied, deemed satisfied or released by foreclosure (whether by power of judicial proceeding), deed in lieu of foreclosure or by any other means and/or (ii) upon the satisfaction, deemed satisfaction, release, payment, restructuring, reorganization, replacement, reinstatement (including, without limitation, under a plan of reorganization or similar manner in any Insolvency Proceeding), the rescission or deceleration of any acceleration of the Obligations by the Borrower, defeasance or compromise of any of the Obligations (and/or this Agreement or any other Loan Document evidencing the Obligations) in any Insolvency Proceeding, foreclosure (whether by power of judicial proceeding or otherwise), deed in lieu of foreclosure, or by any other means or the making of a distribution of any kind in any Insolvency Proceeding to the Collateral Agent, for the account of the Lenders, in full or partial satisfaction of the Obligations. THE BORROWER EXPRESSLY WAIVES THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS OR MAY PROHIBIT THE COLLECTION OF THE FOREGOING FINAL FEE AND PREPAYMENT FEE IN CONNECTION WITH ANY SUCH ACCELERATION INCLUDING IN CONNECTION WITH ANY VOLUNTARY OR INVOLUNTARY ACCELERATION OF THE OBLIGATIONS PURSUANT TO THE ADOPTION OF ANY CORPORATE RESOLUTION, THE COMMENCEMENT OF ANY INSOLVENCY PROCEEDING OR PURSUANT TO A PLAN OF REORGANIZATION. The Borrower expressly agrees that: (A) the Final Fee and Prepayment Fee are reasonable, bear a reasonable proportion to the probable loss, and are the product of an arm’s length transaction between sophisticated business people, ably represented by counsel; (B) the Final Fee and Prepayment Fee shall be payable notwithstanding the then prevailing market rates at the time payment is made; (C) the Final Fee and Prepayment Fee are not interest or the economic equivalent of unmatured interest; (D) there has been a course of conduct between Lenders and the Borrower giving specific consideration in this transaction for such agreement to pay the Final Fee and Prepayment Fee; and (F) the Borrower shall be estopped hereafter from claiming differently than as agreed to in this paragraph. The Borrower expressly acknowledges that (W) its agreement to pay the Final Fee and Prepayment Fee to Lenders as herein described is a material inducement to Lenders to provide the Term Loan Commitments and make the Loans; (X) without such inducement Lenders would not have been willing to provide the Term Loan Commitments and make any applicable Term Loan on such economic terms; (Y) the economic terms (including, but not limited to, interest rate(s), fees, and charges) would be higher than as set forth in this Agreement; and (Z) the provision for the Final Fee and Prepayment Fee to be payable in certain circumstances is for the benefit of the Borrower in allowing the Borrower to borrow the Loans on more generous economic terms than would otherwise be available without the potential to trigger the entitlement to the Final Fee or Prepayment Fee upon the circumstances set forth herein. In the event that any party, including, without limitation, any debtor-in-possession or official committee seeks to otherwise challenge the Lenders’ entitlement to the Final Fee or Prepayment Fee, in an Insolvency Proceeding or otherwise, such premium shall enjoy a presumption of being valid and otherwise reasonable and such party (and not the Lenders) shall have the burden of overcoming
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such presumption and otherwise demonstrating such a premium is unreasonable under applicable federal or state law.
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Effective from and after the Term A Funding Date:
Upon payment in full in cash of the Obligations (other than inchoate indemnity obligations) and at such time as the Lenders’ obligation to extend the Term Loan has terminated, Collateral Agent shall, at the sole cost and expense of Borrower, release its Liens in the Collateral.
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Borrower represents and warrants to Collateral Agent and the Lenders as follows:
The execution, delivery and performance by Borrower and each of its Subsidiaries of the Loan Documents to which it is a party have been duly authorized, and do not (i) conflict with any of Borrower’s or such Subsidiaries’ organizational documents, including its respective Operating Documents, (ii) contravene, conflict with, constitute a default under or violate any material Requirement of Law applicable thereto, (iii) contravene, conflict or violate any applicable order, writ, judgment, injunction, decree, determination or award of any Governmental Authority by which Borrower or such Subsidiary, or any of their property or assets may be bound or affected, (iv) require any action by, filing, registration, or qualification with, or Governmental Approval from, any Governmental Authority (except such Governmental Approvals which have already been obtained and are in full force and effect) or are being obtained pursuant to Section 6.1(b), or (v) constitute an event of default under or cause any Lien to arise under any material agreement by which Borrower or any of such Subsidiaries, or their respective properties, is bound. Neither Borrower nor any of its Subsidiaries is in default under any agreement to which it is a party or by which it or any of its assets is bound in which such default could reasonably be expected to result in a Material Adverse Effect.
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None of Borrower, any of its Subsidiaries, or to such Borrower’s Knowledge, any of Borrower’s or its Subsidiaries’ Affiliates or any of their respective agents acting or benefiting in any capacity in connection with the transactions contemplated by this Agreement is (i) in violation of any Anti-Terrorism Law, (ii) engaging in or conspiring to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding or attempts to violate, any of the prohibitions set forth in any Anti-Terrorism Law, or (iii) is a Blocked Person. None of Borrower, any of its Subsidiaries, or to the Knowledge of Borrower and any of their Affiliates or agents, acting or benefiting in any capacity in connection with the transactions contemplated by this Agreement, (x) conducts any business or engages in making or receiving any contribution of funds, goods or services to or for the benefit of any Blocked Person, or (y) deals in, or otherwise engages in any transaction relating to, any property or interest in property blocked pursuant to Executive Order No. 13224, any similar executive order or other Anti-Terrorism Law.
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Borrower shall, and shall cause each of its Subsidiaries to, do all of the following:
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Notwithstanding the foregoing, documents required to be delivered pursuant to the terms hereof (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date on which Borrower posts such documents, or provides a link thereto, on Borrower’s website on the internet at Borrower’s website address. In addition, the Compliance Certificate and all financial statements, bank statements and other reports required (other than reports filed with the Securities and Exchange Commission) to be delivered under Section 6.2 shall be delivered electronically via Lumonic, or such other platform or portfolio management software used from time to time by Collateral Agent (the “Platform”), unless the Platform is unavailable at such time.
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Borrower shall not, and shall not permit any of its Subsidiaries to, do any of the following without the prior written consent of the Required Lenders:
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Any one of the following shall constitute an event of default (an “Event of Default”) under this Agreement:
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As provided in Annex I, Collateral Agent shall have the exclusive right to exercise any and all remedies referenced in this Section 9.1. Additionally, notwithstanding any other provision of this Agreement, Collateral Agent may take any action that Collateral Agent deems appropriate to address an Exigent Circumstance, even if such action would ordinarily require the consent of the
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Required Lenders or of all Lenders under other Sections of this Agreement.
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All notices, consents, requests, approvals, demands, or other communication (collectively, “Communication”) by any party to this Agreement or any other Loan Document must be in writing and shall be deemed to have been validly served, given, or delivered: (a) upon the earlier of actual receipt and three (3) Business Days after deposit in the U.S. mail, first class, registered or certified mail return receipt requested, with proper postage prepaid; (b) upon transmission, when sent by facsimile or email transmission with confirmation; (c) one (1) Business Day after deposit with a reputable overnight courier with all charges prepaid and required verification of delivery; or (d) when delivered, if hand delivered by messenger, all of which shall be addressed to the party to be notified and sent to the address, facsimile number, or email address indicated below. Any of Collateral Agent, Lender or Borrower may change its mailing address or facsimile number by giving the other party written notice thereof in accordance with the terms of this Section 10.
If to Borrower: | COHERUS ONCOLOGY, INC. |
Latham & Watkins LLP |
801 Jefferson Avenue
Suite 300
Redwood City, CA 94063
Attn: [***]
Email: [***]
If to Collateral Agent: | INNOVATUS LIFE SCIENCES |
Cooley LLP |
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As used in this Agreement, the following terms have the following meanings:
“Account” is any “account” as defined in the Code.
“Account Debtor” is any “account debtor” as defined in the Code with such additions to such term as may hereafter be made under the Code.
“Acquisition” means (a) any acquisition, directly or indirectly, by Borrower or any of its Subsidiaries, whether by purchase, merger or otherwise, of all or substantially all of the assets of, all or any of the equity securities of, or a business line or unit or a division of, any Person, or (b) the acquisition of, or the acquisition of the right to use, develop or sell (in each case, including through licensing (other than “off-the-shelf” licenses and non-exclusive licenses in the ordinary course)), any product, product line or intellectual property related to a product or product line of or from any other Person. For the avoidance of
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doubt, “Acquisition” does not include any co-promotion or co-marketing arrangement pursuant to which Borrower or any Subsidiary acquires rights to promote or market the products of another Person; provided, that no upfront payment shall be payable by Borrower or any of its Subsidiaries in connection with such arrangement and such arrangement does not include a general license to commercialize any product.
[***]
“Affiliate” means, with respect to a specified Person, another Person that, directly or indirectly through one or more intermediaries, (i) Controls or is Controlled by, or is under common Control with, the Person specified, or (ii) has a Managing Role with respect to the Person specified or with another Person that is an Affiliate of the specified Person by operation of subsection (i) of this definition.
“Amortization Date” is the earliest of (i) September 1, 2029, or (ii) if the I/O Extension occurs, September 1, 2030.
“Annual Projections” is defined in Section 6.2(a)(iii).
“Anti-Terrorism Laws” are any laws relating to terrorism or money laundering, including without limitation Executive Order No. 13224 (effective September 24, 2001), the USA PATRIOT Act, the laws comprising or implementing the Bank Secrecy Act, and the laws administered by OFAC.
[***]
“Basic Rate” is with respect to each Term Loan, the floating per annum rate of interest (based on a year of three hundred sixty five (365) days) equal to the sum of (a) the greater of (i) Prime Rate, subject to Section 2.3(f), and (ii) six and three quarters percent (6.75%), plus (b) four and fifteen hundredths percent (4.15%).
“Biosimilar Product” means, with respect to an approved Product, any other Product that is approved as (a) a “biosimilar” or “bioequivalent” (in the United States) of such Product, (b) a “similar biological medicinal product” (in the EU) with respect to which such Product is the “reference medicinal product”, or (c) if not in the US or EU, the equivalent of a “biosimilar” or “similar biological medicinal product” or “bioequivalent” of such approved Product.
“Blocked Person” is any Person: (a) listed in the annex to, or is otherwise subject to the provisions of, Executive Order No. 13224, (b) a Person owned or controlled by, or acting for or on behalf of, any Person that is listed in the annex to, or is otherwise subject to the provisions of, Executive Order No. 13224, (c) a Person with which any Lender is prohibited from dealing or otherwise engaging in any transaction by any Anti-Terrorism Law, (d) a Person that commits, threatens or conspires to commit or supports “terrorism” as defined in Executive Order No. 13224, or (e) a Person that is named a “specially designated national” or “blocked person” on the most current list published by OFAC or other similar list.
“Borrower’s Books” are Borrower’s or any of its Subsidiaries’ books and records including ledgers, federal, and state tax returns, records regarding Borrower’s or its Subsidiaries’ assets or liabilities, the Collateral, business operations or financial condition, and all computer programs or storage or any equipment containing such information.
“Business Day” is any day that is not a Saturday, Sunday or a day on which Collateral Agent is closed.
“Cash Equivalents” are (a) marketable direct obligations issued or unconditionally guaranteed by
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the United States or any agency or any State thereof having maturities of not more than one (1) year from the date of acquisition; (b) commercial paper maturing no more than one (1) year after its creation and having the highest rating from either Standard & Poor’s Ratings Group or Moody’s Investors Service, Inc., and (c) certificates of deposit maturing no more than one (1) year after issue provided that the account in which any such certificate of deposit is maintained is subject to a Control Agreement in favor of Collateral Agent.
“Code” is the Uniform Commercial Code, as the same may, from time to time, be enacted and in effect in the State of New York; provided that, to the extent that the Code is used to define any term herein or in any Loan Document and such term is defined differently in different Articles or Divisions of the Code, the definition of such term contained in Article or Division 9 shall govern; provided further, that in the event that, by reason of mandatory provisions of law, any or all of the attachment, perfection, or priority of, or remedies with respect to, Collateral Agent’s Lien on any Collateral is governed by the Uniform Commercial Code in effect in a jurisdiction other than the State of New York, the term “Code” shall mean the Uniform Commercial Code as enacted and in effect in such other jurisdiction solely for purposes of the provisions thereof relating to such attachment, perfection, priority, or remedies and for purposes of definitions relating to such provisions.
“Coherus Immunology” means Coherus Immunology LLC, a Delaware limited liability company and a Subsidiary of the Borrower.
“Coherus Supportive Care” means Coherus Oncology Supportive Care LLC and a Subsidiary of the Borrower.
“Collateral” is any and all properties, rights and assets of Borrower described on Exhibit A.
“Collateral Account” is any Deposit Account, Securities Account, or Commodity Account, or any other bank account maintained by Borrower or any Loan Party at any time; provided that “Collateral Account” shall not include any Excluded Account.
“Commitment Percentage” is set forth in Schedule 1.1, as amended from time to time.
“Commodity Account” is any “commodity account” as defined in the Code with such additions to such term as may hereafter be made under the Code.
“Competing Product” means, with respect to any Primary Product, any other Product (in any form, presentation, dose or formulation, whether used as a single agent or in combination with other therapeutically active agents) that Borrower or any of its Subsidiaries has rights to that is being researched primarily for the purpose of any labeled or intended indication for use that overlaps in any respect with such Primary Product or developed, manufactured, used or commercialized in any labeled or intended indication for use that overlaps in any respect with such Primary Product, including, for the avoidance of doubt, any Biosimilar Product with respect to any Primary Product or Competing Product.
“Compliance Certificate” is that certain certificate in substantially the form attached hereto as Exhibit C.
“Contingent Obligation” is, for any Person, any direct or indirect liability, contingent or not, of that Person for (a) any indebtedness, lease, dividend, letter of credit or other obligation of another Person such as an obligation directly or indirectly guaranteed, endorsed, co made, discounted or sold with recourse by that Person, or for which that Person is directly or indirectly liable; (b) any obligations for undrawn letters of credit for the account of that Person; and (c) all obligations from any interest rate, currency or
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commodity swap agreement, interest rate cap or collar agreement, or other agreement or arrangement designated to protect a Person against fluctuation in interest rates, currency exchange rates or commodity prices; but “Contingent Obligation” does not include endorsements in the ordinary course of business. The amount of a Contingent Obligation is the stated or determined amount of the primary obligation for which the Contingent Obligation is made or, if not determinable, the maximum reasonably anticipated liability for it determined by the Person in good faith; but the amount may not exceed the maximum of the obligations under any guarantee or other support arrangement.
“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have meanings analogous thereto.
“Control Agreement” is any control agreement entered into among the depository institution at which Borrower or any of its Subsidiaries maintains a Deposit Account or the securities intermediary or commodity intermediary at which Borrower or any of its Subsidiaries maintains a Securities Account or a Commodity Account, Borrower and such Subsidiary, and Collateral Agent pursuant to which Collateral Agent, for the benefit of the Lenders, obtains “control” (within the meaning of the Code) over such Deposit Account, Securities Account, or Commodity Account.
“Copyrights” are any and all copyright rights, copyright applications, copyright registrations and like protections in each work of authorship and derivative work thereof, whether published or unpublished and whether or not the same also constitutes a trade secret.
“Core Assets” means (a) each Primary Product and (b) any Competing Product, in each case, together with all Intellectual Property related thereto.
“Credit Extension” means an advance of funds under a Term Loan.
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[***]
“Default” means an event that with the passage of time could result in an Event of Default.
“Deposit Account” is any “deposit account” as defined in the Code with such additions to such term as may hereafter be made.
“Disbursement Letter” is that certain form attached hereto as Exhibit B-2.
“DOJ” means the U.S. Department of Justice or any successor thereto or any other comparable Governmental Authority.
“Dollars,” “dollars” and “$” each mean lawful money of the United States.
“Effective Date” means the date on which each of the conditions precedent set forth in Section 3.1 have been satisfied or waived by Collateral Agent and each Lender in their sole discretion.
“Equipment” is all “equipment” as defined in the Code with such additions to such term as may hereafter be made, and includes without limitation all machinery, fixtures, and vehicles (including motor vehicles and trailers) not held for sale or lease, and any interest in any of the foregoing.
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“Excluded Accounts” means (a) the Collection Account (as defined in the RIF Security Agreement), maintained by Borrower at Silicon Valley Bank, a division of First-Citizens Bank & Trust Company [***] which account shall solely hold the Revenue Payments (as defined under the RIF Purchase Agreement) made by Borrower under the RIF Purchase Agreement; (b) any segregated Deposit Account, designated by Borrower to Collateral Agent in writing, established solely to receive and hold the proceeds of (i) Royalty Assets sold pursuant to a Permitted Royalty Sale and holding no other cash or assets and (ii) Permitted Carve-Outs and holding no other cash or assets; (c) deposit accounts exclusively used for payroll, payroll taxes and other employee wage and benefit payments to or for the benefit of Borrower’s or any of its Subsidiaries’ employees and identified to Collateral Agent by Borrower as such in the Perfection Certificate; (d) any zero balance account; provided that the available balance on such zero balance account is swept on each Business Day into one or more Deposit Accounts that are not Excluded Accounts and that are subject to a Control Agreement; (e) accounts (including trust accounts) used exclusively for escrow, customs, insurance or fiduciary purposes, in each case, for unaffiliated third parties; (f) accounts which exclusively constitute cash collateral in respect of a Permitted Lien for unaffiliated third parties; and (g) any other account designated as an Excluded Account by Borrower in writing delivered to the Collateral Agent, the cash balance of which such accounts do not exceed [***] at any time.
“Excluded Subsidiary” means (i) the MSC Subsidiary, (ii) ZAO Intekrin, (iii) Coherus Supportive Care and (iv) Coherus Immunology.
“ERISA” is the Employee Retirement Income Security Act of 1974, as amended, and its regulations.
“Exigent Circumstance” means any event or circumstance that, in the reasonable judgment of Collateral Agent, imminently threatens the ability of Collateral Agent to realize upon all or any material portion of the Collateral, such as, without limitation, fraudulent removal, concealment, or abscondment thereof, destruction or material waste thereof, or failure of Borrower or any of its Subsidiaries after reasonable demand to maintain or reinstate adequate casualty insurance coverage, or which, in the judgment of Collateral Agent, could reasonably be expected to result in a material diminution in value of the Collateral.
“Existing Indebtedness” is the indebtedness of Borrower under that certain Loan Agreement, dated May 8, 2024 (as the same may from time to time be amended, restated, modified or otherwise supplemented), by and among the Borrower, the credit parties party thereto, the lenders party thereto and Ankura Trust Company, LLC, as administrative agent and collateral agent.
“Facility Fee” is a fee due on each Funding Date, in an amount equal to 1.50% of the aggregate principal amount of the Term Loan funded on such Funding Date, payable to the Lenders in accordance with their respective Pro Rata Shares.
“FDA” means the U.S. Food and Drug Administration or any successor thereto or any other comparable Governmental Authority.
“Final Fee” is a payment (in addition to and not a substitution for the regular monthly payments of principal or accrued interest or any other fee payable hereunder) due on the earliest to occur of (a) the Maturity Date, or (b) the acceleration of any Term Loan, or (c) the prepayment of the Term Loan pursuant to Section 2.2(c) or (d), in each case equal to four percent (4.00%) multiplied by the aggregate principal amount of the Term Loans funded under this Agreement, payable to Lenders in accordance with their respective Pro Rata Shares; provided, that the Final Fee shall increase to ten percent (10.00%) if (i) (A) Borrower begins an Insolvency Proceeding or (B) an Insolvency Proceeding is begun against Borrower and (ii) Borrower receives debtor-in-possession financing from Coduet Royalty Holdings, LLC, any other
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“Buyer” (under and as defined in the RIF Purchase Agreement) and/or any of their assignees or affiliates. For the avoidance of doubt, the calculation of any Final Fee payment shall not include the principal amount(s) prepaid in accordance with the second paragraph of Section 2.2(d) if a Final Fee payment based on such principal amount was made at the time of each such prepayment.
“Foreign Subsidiary” is a Subsidiary that is not an entity organized under the laws of the United States or any state thereof.
“Funding Date” is any date on which the Term Loan is made to or on account of Borrower, which shall be a Business Day.
“GAAP” is generally accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other Person as may be approved by a significant segment of the accounting profession in the United States, which are applicable to the circumstances as of the date of determination.
“General Intangibles” are all “general intangibles” as defined in the Code in effect on the date hereof with such additions to such term as may hereafter be made, and includes without limitation, all copyright rights, copyright applications, copyright registrations and like protections in each work of authorship and derivative work, whether published or unpublished, any patents, trademarks, service marks and, to the extent permitted under applicable law, any applications therefor, whether registered or not, any trade secret rights, including any rights to unpatented inventions, payment intangibles, royalties, contract rights, goodwill, franchise agreements, purchase orders, customer lists, route lists, telephone numbers, domain names, claims, income and other tax refunds, security and other deposits, options to purchase or sell real or personal property, rights in all litigation presently or hereafter pending (whether in contract, tort or otherwise), insurance policies (including without limitation key man, property damage, and business interruption insurance), payments of insurance and rights to payment of any kind.
“Governmental Approval” is any consent, authorization, approval, order, license, franchise, permit, certificate, accreditation, registration, filing or notice, of, issued by, from or to, or other act by or in respect of, any Governmental Authority.
“Governmental Authority” is any nation or government, any state or other political subdivision thereof, any agency, authority, instrumentality, regulatory body (including, without limitation, the FDA and any state board of pharmacy or state pharmacy licensing authority), court, central bank, arbitration authority, or other entity exercising executive, legislative, judicial, quasi-judicial, taxing, regulatory or administrative functions of or pertaining to government, any securities exchange and any self-regulatory organization.
“Guarantor” is any Person providing a Guaranty in favor of Collateral Agent for the benefit of the Lenders.
“Guaranty” is any guarantee of all or any part of the Obligations, as the same may from time to time be amended, restated, modified or otherwise supplemented.
“Indebtedness” is (a) indebtedness for borrowed money or the deferred price of property or services, such as reimbursement and other obligations for surety bonds and letters of credit, excluding unsecured trade payables arising in the ordinary course of business, (b) obligations evidenced by notes, bonds, debentures or similar instruments, (c) capital lease obligations, and (d) Contingent Obligations.
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“Insolvency Proceeding” is any proceeding by or against any Person under the United States Bankruptcy Code, or any other bankruptcy or insolvency law, including assignments for the benefit of creditors, compositions or proceedings seeking reorganization, arrangement, or other relief.
“Insolvent” means not Solvent.
“Intellectual Property” means all of Borrower’s or any of its Subsidiaries’ right, title and interest in and to the following:
“Interest-Only Period” means the period commencing on the Term A Funding Date and ending on the date that is thirty-six (36) months thereafter; provided that the Interest-Only Period may be extended to forty-eight (48) months after the Term A Funding Date (the “I/O Extension”) if Borrower has achieved the Term B Milestone prior to the thirty-six (36) month anniversary of the Term A Funding Date.
“Internal Revenue Code” means the U.S. Internal Revenue Code of 1986, as amended.
“Inventory” is all “inventory” as defined in the Code in effect on the date hereof with such additions to such term as may hereafter be made under the Code, and includes without limitation all merchandise, raw materials, parts, supplies, packing and shipping materials, work in process and finished products, including without limitation such inventory as is temporarily out of any Person’s custody or possession or in transit and including any returned goods and any documents of title representing any of the above.
“Investment” is any beneficial ownership interest in any Person (including stock, partnership interest or other securities), any Acquisition, and any loan, advance or capital contribution to any Person.
“IP Security Agreement” is that certain Intellectual Property Security Agreement executed and delivered by Borrower to Collateral Agent and dated as of the Term A Funding Date, as may be amended, restated, or otherwise modified or supplemented from time to time.
“Issuer” means an issuer of Shares.
[***]
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“Key Person” is each of Borrower’s (i) President and Chief Executive Officer, who is Dennis M. Lanfear as of the Effective Date, (ii) Chief Financial Officer, who is Bryan McMichael as of the Effective Date and (iii) Chief Medical Officer, who is Rosh Dias as of the Effective Date.
“Knowledge” means to the “best of” Borrower’s knowledge, or with a similar qualification, knowledge or awareness means the actual knowledge, after reasonable investigation, of the Responsible Officers.
“Lender” is any one of the Lenders.
“Lenders” are the Persons identified on Schedule 1.1 hereto and each assignee that becomes a party to this Agreement pursuant to Section 12.1.
“Lenders’ Expenses” are all reasonable and documented audit fees and expenses, costs, and expenses (including reasonable and documented out-of-pocket attorneys’ fees and expenses, as well as appraisal fees, fees incurred on account of lien searches, inspection fees, auditor fees and filing fees) for preparing, amending, negotiating, administering, defending and enforcing the Loan Documents (including, without limitation, those incurred in connection with appeals or Insolvency Proceedings) or otherwise incurred by Collateral Agent and/or the Lenders in connection with the Loan Documents.
“Lien” is a claim, mortgage, deed of trust, levy, charge, pledge, security interest, or other encumbrance of any kind, whether voluntarily incurred or arising by operation of law or otherwise against any property.
“Loan Documents” are, collectively, this Agreement, the Security Grant Instrument, the IP Security Agreement, each Secured Promissory Note, the Management Rights Letter, the Perfection Certificate(s), each Guaranty, each Control Agreement, each Compliance Certificate, each Loan Payment Request Form, each Disbursement Letter, any subordination agreements, any note, or notes or guaranties executed by Borrower or any other Person, and any other present or future agreement entered into by Borrower, any Guarantor or any other Person for the benefit of the Lenders and Collateral Agent in connection with this Agreement; all as amended, restated, or otherwise modified or supplemented from time to time.
“Loan Party” or “Loan Parties” means each Borrower and each Guarantor.
“Loan Payment Request Form” is that certain form attached hereto as Exhibit B-1.
“Management Rights Letter” means that certain letter agreement duly executed by the Borrower for the benefit of Innovatus Life Sciences Lending Fund I, LP and Innovatus Life Sciences Offshore Fund I-A, LP.
“Managing Role” means a managing member, manager, director, executive officer, or other role with senior management responsibilities as to a Person.
“Market Capitalization” means, with respect to Borrower, as of any date of determination, an amount equal to the 30-day volume weighted average price as of such date of Borrower’s common shares multiplied by the total outstanding common shares of Borrower as of such date.
“Material Adverse Effect” is (a) a material adverse change in, or a material adverse effect on, the operations, business, properties, liabilities (actual or contingent) or financial condition of Borrower and any guarantor of the Obligations, when taken as a whole or (b) a material adverse effect on (i) the ability of
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Borrower to timely perform its Obligations including with respect to the Collateral, (ii) the legality, validity, binding effect, or enforceability against Borrower of any Loan Document to which it is a party or (iii) the rights, remedies and benefits available to, or conferred upon, Collateral Agent or any Lender under any Loan Documents.
“Material Agreement” means (a) [***] and (b) any license, agreement or other contractual arrangement entered into after the Effective Date that is material to the business, financial condition, operation, performance or properties of Borrower of any Loan Party such that the termination thereof or default thereunder by any Person would reasonably be expected to have a Material Adverse Effect.
“Maturity Date” is August 14, 2031.
“MSC Subsidiary” means Surface Securities Corporation, a corporation organized under the laws of the Commonwealth of Massachusetts and a Subsidiary of the Borrower.
[***]
[***]
“Non-Core Assets” means [***].
“New Subsidiary” is defined in Section 6.10.
“Obligations” are all of Borrower’s obligations to pay when due any debts, principal, interest, make-whole amount, Lenders’ Expenses, the Prepayment Fee, the Final Fee, and other amounts Borrower owes the Collateral Agent or Lenders now or later, in connection with, related to, following, or arising from, out of or under, this Agreement or the other Loan Documents, or otherwise, and including interest and other amounts accruing after Insolvency Proceedings begin (whether or not allowed) and debts, liabilities, or obligations of Borrower assigned to the Lenders and/or Collateral Agent, and the performance of Borrower’s duties under the Loan Documents.
“OFAC” is the U.S. Department of Treasury Office of Foreign Assets Control.
“OFAC Lists” are, collectively, the Specially Designated Nationals and Blocked Persons List maintained by OFAC pursuant to Executive Order No. 13224, 66 Fed. Reg. 49079 (Sept. 25, 2001) and/or any other list of terrorists or other restricted Persons maintained pursuant to any of the rules and regulations of OFAC or pursuant to any other applicable Executive Orders.
“Operating Documents” are, for any Person, such Person’s formation documents and, (a) if such Person is a corporation, its bylaws in current form, (b) if such Person is a limited liability company, its limited liability company agreement (or similar agreement), and (c) if such Person is a partnership, its partnership agreement (or similar agreement), each of the foregoing with all current amendments or modifications thereto.
“Patents” means all patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, re-examination certificates, utility models, extensions and continuations-in-part of the same.
“Payment Date” is the first (1st) calendar day of each calendar month, commencing on September 1, 2026.
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“Permitted Acquisitions” means any Acquisition which is conducted in accordance with the following requirements:
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“Permitted Carve-Out” means [***]
“Permitted Exclusive Out-License” means any exclusive license (including with respect to a limited field of use) granted by Borrower or any of its Subsidiaries covering regional development or commercial rights outside of the United States and its territories with respect to Borrower’s pipeline product candidates, which include but are not limited to Tagmokitug, Casdozokitug, and CHS-1000; provided that: (a) such license does not provide for the legal transfer of title to any Intellectual Property included in the Core Assets; (b) such license is conducted on an arm’s-length basis between unrelated Persons; (c) Borrower is in compliance with all covenants set forth in this Agreement immediately prior to, and after giving effect to, such license; (d) no Event of Default has occurred and is continuing or would exist after giving effect to such license, and (e) such license does not restrict the ability of Borrower or any of its Subsidiaries, as applicable, to (i) pledge, grant a security interest in or lien on, or assign or otherwise Transfer any Intellectual Property included in the Core Assets or to (ii) grant a security interest to Collateral Agent in the assets described in subclause (i).
“Permitted Indebtedness” is:
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“Permitted Investments” are:
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“Permitted Licenses” are:
“Permitted Liens” are:
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“Permitted Royalty Sales” means, with respect to any Product acquired pursuant to a Permitted Acquisition, the sale of up ten percent (10%) of net sales or revenues of such Product; provided that (a) such transaction shall be structured as a “true sale” of such net sales or revenues, (b) such transaction shall
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not have or provide for any (x) redemption or buy-back obligations or any financial covenants, (y) Lien on any asset of the Borrower or any of its Subsidiaries (except for a customary back-up security interest on the Royalty Assets so sold and a lien on segregated accounts that receive the proceeds thereof and hold no other cash) or (z) negative pledge restricting incurrence of any Lien on any asset of the Borrower or any of its Subsidiaries (except that such transaction may contain a customary negative pledge on the Royalty Assets sold pursuant to such transaction and segregated accounts that receive the proceeds thereof and hold no other cash), (c) the consideration received for such transaction shall be in an amount at least equal to the fair market value thereof, (d) no Event of Default has occurred and is continuing or would result after giving effect to such royalty financing, (e) Borrower is in compliance with all covenants set forth in this Agreement on the closing date of and after giving effect to such royalty financing, (f) the aggregate amount of net sales or revenues sold pursuant to all such Permitted Royalty Sales for any such Product does not exceed 10% of the net sales or revenues of such Product and (g) if requested by the Collateral Agent, the royalty purchaser in connection with such Permitted Royalty Sale shall have entered into an intercreditor agreement with Collateral Agent, in form and substance acceptable to Collateral Agent in its reasonable discretion.
“Person” is any individual, sole proprietorship, partnership, limited liability company, joint venture, company, trust, unincorporated organization, association, corporation, institution, public benefit corporation, firm, joint stock company, estate, entity or Governmental Authority.
“Platform” is defined in Section 6.2(a).
“Prepayment Fee” is, with respect to any Term Loan subject to prepayment prior to the Maturity Date, whether by mandatory or voluntary prepayment, acceleration or otherwise, an additional fee payable to the Lenders in amount equal to:
“Primary Product” means (i) each of LOQTORZI (toripalimab‐tpzi), Tagmokitug, Casdozokitug, and any Product acquired pursuant to a Permitted Acquisition, and (ii) CHS-1000, to the extent the Borrower or any of its Subsidiaries expends, in the aggregate, in excess of [***] after the Term A Funding Date on the research, development, manufacturing, commercialization, marketing, distribution, or other exploitation of CHS-1000.
“Prime Rate” is the Prime Rate published in the Money Rates section of The Wall Street Journal.
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“Product” means any product/development candidate (in all forms, presentations, doses and formulations) being, or that has been, developed or commercialized by Borrower or its Subsidiaries from time to time, including but not limited to any acquired product that is acquired or in-licensed pursuant to a Permitted Acquisition.
“Property” means any interest in any kind of property or asset, whether real, personal or mixed, and whether tangible or intangible.
“Pro Rata Share” is, as of any date of determination, with respect to each Lender, a percentage (expressed as a decimal, rounded to the ninth decimal place) determined by dividing the outstanding principal amount of the Term Loan held by such Lender by the aggregate outstanding principal amount of the Term Loan.
“Registered Organization” is any “registered organization” as defined in the Code with such additions to such term as may hereafter be made under the Code.
“Registration” means any registration, authorization, approval, license, permit, clearance, certificate, and exemption issued or allowed by the FDA or state pharmacy licensing authorities (including, without limitation, new drug applications, abbreviated new drug applications, biologics license applications, investigational new drug applications, over-the-counter drug monograph, device pre-market approval applications, device pre-market notifications, investigational device exemptions, product recertifications, manufacturing approvals, registrations and authorizations, CE Marks, pricing and reimbursement approvals, labeling approvals or their foreign equivalent, controlled substance registrations, and wholesale distributor permits).
“Regulatory Action” means an administrative, regulatory, or judicial enforcement action, proceeding, investigation or inspection, FDA Form 483 notice of inspectional observation, warning letter, untitled letter, other notice of violation letter, recall, seizure, Section 305 notice or other similar written communication, injunction or consent decree, issued by the FDA or a federal or state court.
“Related Persons” means, with respect to any Person, each Affiliate of such Person and each director, officer, employee, agent, trustee, representative, attorney, accountant and each insurance, environmental, legal, financial and other advisor and other consultants and agents of or to such Person or any of its Affiliates.
“Required Lenders” means (i) for so long as all of the Persons that are Lenders on the Term A Funding Date (each an “Original Lender”) have not assigned or transferred any of their interests in the Term Loan, Lenders holding [***] of the aggregate outstanding principal balance of the Term Loan, or (ii) at any time from and after any Original Lender has assigned or transferred any interest in its Term Loan, Lenders holding [***] of the aggregate outstanding principal balance of the Term Loan.
“Requirement of Law” is as to any Person, the organizational or governing documents of such Person, and any law (statutory or common), treaty, rule or regulation or determination of an arbitrator or a court or other Governmental Authority, in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.
“Responsible Officer” is any of the President, Chief Executive Officer, or Chief Financial Officer of Borrower acting alone.
“RIF Purchase Agreement” means that certain Revenue Participation Right Purchase and Sale Agreement, dated as of May 8, 2024, by and between the Borrower and Coduet Royalty Holdings, LLC (as
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the same may be amended, restated, modified, or supplemented from time to time).
“RIF Purchase Documents” means, collectively, (a) the RIF Purchase Agreement, (b) the RIF Security Agreement, (c) that certain Bill of Sale, dated as of May 8, 2024, executed by Parent in favor of the buyers party to the RIF Purchase Agreement and Coduet Royalty Holdings, LLC, as buyer representative, (d) the Control Agreement (as defined in the RIF Purchase Agreement), and (e) any and all other agreements, instruments and documents executed and delivered in connection with any of the foregoing, in each case as the same may be amended, restated, modified, or supplemented from time to time.
“RIF Security Agreement” means that certain Security and Paying Agent Agreement, dated as of May 8, 2024, among the Borrower, Coduet Royalty Holdings, LLC, as buyer representative, and Ankura Trust Company, LLC, as paying agent (as the same may be amended, restated, modified, or supplemented from time to time).
“Royalty Assets” means, with respect to any Permitted Royalty Sale of a Product, the portion of net sales or revenues of such Product (and the undivided portion of related Accounts and payment intangibles, not to exceed 10% of the net sales or revenues in the aggregate for all Permitted Royalty Sales of such Product, sold pursuant to such Permitted Royalty Sale, together with the proceeds thereof.
“Security Grant Instrument” means that certain Security Agreement executed and delivered by Borrower to Collateral Agent, dated as of the Term A Funding Date, as may be amended, restated, or otherwise modified or supplemented from time to time.
“Secured Promissory Note” is defined in Section 2.6.
“Secured Promissory Note Record” is a record maintained by each Lender with respect to the outstanding Obligations owed by Borrower to Lender and credits made thereto.
“Securities Account” is any “securities account” as defined in the Code with such additions to such term as may hereafter be made under the Code.
“Shares” is [***] of the stock, units or other evidence of ownership held by Borrower or its Subsidiaries of any Subsidiary; provided, however, as to any stock, units or other evidence of ownership held by Borrower or its Subsidiary in a Foreign Subsidiary, “Shares” shall be limited to [***] of the Foreign Subsidiary or the maximum portion thereof that may from time to time be pledged without causing a material adverse tax consequence to Borrower.
“Solvent” is, with respect to any Person: the fair salable value of such Person’s consolidated assets (including goodwill minus disposition costs) exceeds the fair value of such Person’s liabilities; such Person is not left with unreasonably small capital after the transactions in this Agreement; and such Person is able to pay its debts (including trade debts) as they mature in the ordinary course (without taking into account any forbearance and extensions related thereto).
“Subordinated Debt” is indebtedness incurred by Borrower or any of its Subsidiaries subordinated to all Indebtedness of Borrower and/or its Subsidiaries to the Lenders (pursuant to a subordination, intercreditor, or other similar agreement in form and substance satisfactory to Collateral Agent and the Lenders entered into between Collateral Agent, Borrower, and/or any of its Subsidiaries, and the other creditor), on terms acceptable to Collateral Agent and the Lenders, as determined in their sole discretion.
“Subsidiary” is, with respect to any Person, any Person of which more than fifty percent (50%) of
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the voting stock or other equity interests (in the case of Persons other than corporations) is owned or controlled, directly or indirectly, by such Person or through one or more intermediaries. Unless otherwise specified, references herein to a Subsidiary means a Subsidiary of Borrower.
“Term A Funding Date” means the Funding Date (which shall occur no later than two (2) Business Days after the Effective Date or such later date as approved by the Required Lenders) on which each of the conditions precedent set forth in Sections 3.2 and 3.3 have been satisfied or waived by Collateral Agent and each Lender in their sole discretion and the Term A Loan is funded to Borrower.
“Term B Draw Period” is the period commencing on the later of September 1, 2027 and the first date on which Borrower achieves the Term B Milestone and ending on the earlier of (i) April 30, 2028 or (ii) the occurrence of an Event of Default (unless such Event of Default is waived by Collateral Agent and Lenders for the purposes of the continuation of the Term B Draw Period); provided, however, that the Term B Draw Period shall not commence if when Borrower achieves the Term B Milestone, an Event of Default has occurred and is continuing.
“Term B Milestone” is the achievement by the Borrower of (i) Trailing Three Month Revenue of not less than Thirty-Five Million Dollars ($35,000,000.00) on or prior to March 31, 2028, and (ii) the pro forma (after giving effect to the Term B Loan) ratio of the aggregate principal amount of Term Loans funded under this Agreement to Borrower’s Market Capitalization as of the trading day immediately preceding the Funding Date of the Term B Loan is less than twenty-five percent (25.00%).
“Term Loan” means any Term Loan made pursuant to Section 2.2(a).
“Term Loan Commitment” means, for any Lender, the obligation of such Lender to make the Term Loan, up to the principal amount shown on Schedule 1.1. “Term Loan Commitments” means the aggregate amount of such commitments of all Lenders.
“Trademarks” means any trademark and servicemark rights, whether registered or not, applications to register and registrations of the same and like protections, and the entire goodwill of the business of Borrower and each of its Subsidiaries connected with and symbolized by such trademarks.
“Trailing Three Month Revenue” means trailing three (3) months’ consolidated revenue, determined in accordance with GAAP, as of any date of determination.
[***]
“ZAO Intekrin” means ZAO Intekrin, a company organized under the laws of the Country of Russia and a Subsidiary of the Borrower.
[Balance of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the Effective Date.
BORROWERS:
COHERUS ONCOLOGY, INC.
By /s/ Dennis M. Lanfear
Name: Dennis M. Lanfear
Title: Chief Executive Officer
COHERUS INTERMEDIATE CORP
By /s/ Dennis M. Lanfear
Name: Dennis M. Lanfear
Title: President
SURFACE ONCOLOGY, LLC
By /s/ Dennis M. Lanfear
Name: Dennis M. Lanfear
Title: President
INTEKRIN THERAPEUTICS INC.
By /s/ Dennis M. Lanfear
Name: Dennis M. Lanfear
Title: President
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COLLATERAL AGENT AND LENDER:
INNOVATUS LIFE SCIENCES LENDING FUND I, LP
By: Innovatus Life Sciences GP, LP
Its: General Partner
By /s/ Andrew Dym
Name: Andrew Dym
Title: Authorized Signatory
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