exh102amendmentno1tocred






Execution Version   NY-2439688  AMENDMENT NO. 1 TO CREDIT AGREEMENT AND GUARANTY  This AMENDMENT NO. 1 TO CREDIT AGREEMENT AND GUARANTY, dated as of  September 29, 2022 (this “Amendment”), is by and among XERIS PHARMACEUTICALS, INC.,  a Delaware corporation (the “Borrower”), and XERIS BIOPHARMA HOLDINGS, INC., a  Delaware corporation (“Parent”), the Lenders party hereto, and HAYFIN SERVICES LLP, as  administrative agent for the Lenders (in such capacity, together with its successors and assigns,  the “Agent”).  Reference is made to the Credit Agreement and Guaranty, dated as of March 8,  2022, among the Borrower, Parent, certain subsidiaries of Parent from time to time party thereto,  the lenders from time to time party thereto (the “Lenders”) and the Agent (as amended,  supplemented or otherwise modified from time to time, the “Credit Agreement”).  Capitalized  terms used herein without definition shall have the same meanings as set forth in the Credit  Agreement, as amended by this Amendment.  RECITALS  WHEREAS, Parent and the Borrower have requested that the Agent and the Lenders  amend certain provisions of the Credit Agreement; and  WHEREAS, the Agent and the Lenders are willing to do so on the terms and subject to the  conditions set forth herein.  NOW, THEREFORE, the parties hereto hereby agree as follows:  ARTICLE I  AMENDMENTS TO CREDIT AGREEMENT; OTHER AGREEMENTS  SECTION 1.01. Amendments to the Credit Agreement.  As of the Amendment Effective Date,  Sections 9.01(p) and 9.01(t) of the Credit Agreement is hereby amended and restated in its entirety  to read as follows:  (p) Indebtedness under any letters of credit in an aggregate face amount not to exceed $2,000,000; provided such amount shall be automatically increased to (i) $4,800,000 so  long as the Borrower is required to cause a letter of credit to be issued to the lessor under the lease  for the premises located at 1375 W. Fulton Street, Chicago, IL 60607 or (ii) if the aggregate face  amount of such letter of credit described in clause (i) above is reduced after the date of issuance  thereof, $4,800,000 less the amount of such reduction;   (t) Permitted Refinancings of Indebtedness otherwise permitted pursuant to this Section 9.1 (other than Section 9.1(a), (l), the proviso in (p), (t) and (u)); and  ARTICLE II  ACKNOWLEDGEMENT, AGREEMENT AND CONSENT AND  REPRESENTATIONS AND WARRANTIES  SECTION 2.01.  Each Obligor party hereto confirms and agrees that, notwithstanding the  effectiveness of this Amendment, the obligations of such Obligor under each Loan Document to  which such Obligor is a party shall not be impaired and each Loan Document to which such  Exhibit 10.2 





 






 NY-2439688   Obligor is a party is, and shall continue to be, in full force and effect and is hereby confirmed and  ratified in all respects.  SECTION 2.02.  Each Obligor party hereto hereby acknowledges and agrees that the Guaranteed  Obligations will include all Obligations under, and as defined in, the Credit Agreement as amended  by this Amendment.  SECTION 2.03.  To induce the Agent and the Lenders to execute and deliver this Amendment,  each Obligor party hereto represents and warrants to the Agent and the Lenders party hereto that  as of the date hereof, each of the following statements are true and correct:  (a) The execution and delivery of this Amendment, and the performance of this  Amendment and the Credit Agreement as amended hereby, by each Obligor party hereto has been  duly authorized by all necessary corporate or other organizational action on the part of such  Obligor and this Amendment and the Credit Agreement as amended hereby each constitutes a  legal, valid and binding agreement of such Obligor, enforceable against such Obligor in  accordance with their respective terms, except as enforcement may be limited by (i) bankruptcy,  insolvency, reorganization, moratorium or similar laws of general applicability affecting the  enforcement of creditors’ rights generally and (ii) the application of general principles of equity  (regardless of whether such enforceability is considered in a proceeding in equity or at law).  (b) The execution and delivery of this Amendment, and the performance of this  Amendment and the Credit Agreement as amended hereby, in each case by any Obligor party  hereto, does not (i) violate or conflict with any Law, (ii) result in the creation of any Lien (other  than Permitted Liens) on any asset of such Obligor or any of its Subsidiaries or (iii) violate, or  result in a default under, any Material Agreement binding upon Parent or any of its Subsidiaries  that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse  Effect.  (c) No authorization or approval or other action by, and no notice or filing with, any  Governmental Authority or any other Person (other than those that have been duly obtained or  made and which are in full force and effect) is required for the due execution and delivery of this  Amendment and the performance of this Amendment and the Credit Agreement as amended  hereby, in each case by each Obligor party hereto, except for filings and recordings in respect of  perfecting or recording the Liens created pursuant to the Security Documents.  (d) Parent and its Subsidiaries, on a consolidated basis, are, and immediately after  giving effect to this Amendment, will be Solvent.  (e) Immediately before and after giving effect to this Amendment, no event has  occurred and is continuing that constitutes a Default or an Event of Default.   ARTICLE III  CONDITIONS PRECEDENT  SECTION 3.01.  Conditions to Effectiveness of this Amendment. This Amendment shall  become effective only upon, and shall be subject to, the prior or simultaneous satisfaction or waiver  





 






 NY-2439688   of each of the following conditions precedent in a manner reasonably satisfactory to the Agent (the  date satisfaction of such conditions being referred to as the “Amendment Effective Date”):  (a) Executed Amendment.   The Agent shall have received this Amendment, duly  executed by the Borrower, Parent, the Agent and each of the Lenders.  (b) Costs and Expenses, Etc.  The Agent shall have received for its account and the  account of each Lender all reasonable and documented fees, costs and expenses due and payable  to them pursuant to Section 14.03(a) of the Credit Agreement (including the Agent’s and each  Lender’s reasonable and documented (in reasonable detail) legal fees and out-of-pocket expenses).  ARTICLE IV  MISCELLANEOUS  SECTION 4.01. Governing Law; Jurisdiction; Jury Trial.  This Amendment and the rights and  obligations of the parties hereunder shall be governed by, and construed in accordance with, the  law of the State of New York, without regard to principles of conflicts of laws that would result in  the application of the laws of any other jurisdiction; provided that Section 5-1401 and 5-1402 of  the New York General Obligations Law shall apply.  The jurisdiction, service of process, venue  and waiver of jury trial provisions set forth in Sections 14.10 and 14.11 of the Credit Agreement,  respectively, are incorporated herein by reference mutatis mutandis.  SECTION 4.02. Effect of Amendment.  (a) On and after the Amendment Effective Date, each reference in any Loan Document  (other than this Amendment) to the Credit Agreement shall mean and be a reference to the Credit  Agreement as amended by this Amendment.  (b) This Amendment shall constitute a Loan Document for all purposes of the Credit  Agreement.  The Obligors party hereto agree that all of the representations, warranties, terms,  covenants, conditions and other provisions of the Credit Agreement and other Loan Documents  shall, except as expressly set forth in this Amendment, remain unchanged and shall continue to be,  and shall remain, in full force and effect in accordance with their respective terms.  The  amendments, waivers, consents and modifications set forth herein shall be limited precisely as  provided for herein to the provisions expressly amended herein or otherwise modified, waived or  consented to hereby and shall not be deemed to be an amendment to, waiver of, consent to or  modification of any other term or provision of the Credit Agreement or any other Loan Document  or of any transaction or further or future action on the part of any Obligor which would require the  consent of the Lenders or the Agent under the Credit Agreement or any other Loan Document, or  a waiver of any Default or Event of Default or non-compliance with any term or condition  contained in the Credit Agreement.  Except as expressly set forth in this Amendment, the Credit  Agreement and the other Loan Documents are and shall continue to be in full force and effect and  are hereby in all respects ratified and confirmed.  (c) The execution, delivery and effectiveness of this Amendment shall not, except as  expressly provided herein, operate as a waiver of any right, power or remedy of the Agent or any  Lender under any Loan Document or applicable Law, nor constitute a waiver of any provision of  the Credit Agreement except as expressly set forth herein.   





 






 NY-2439688  SECTION 4.03.  No Novation. This Amendment is not intended by the parties to be, and shall  not be construed to be, a novation of the Credit Agreement or the other Loan Documents.  SECTION 4.04.  Counterparts; Electronic Signatures. This Amendment may be executed in  any number of counterparts, all of which taken together shall constitute one and the same  instrument and any of the parties hereto may execute this Amendment by signing any such  counterpart. Delivery of an executed signature page of this Amendment by facsimile transmission  or electronic transmission (in PDF format) shall be effective as delivery of a manually executed  counterpart hereof. Any signature (including, without limitation, (x) any electronic 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 record and (y) any facsimile or .pdf signature)  hereto or to any other certificate, agreement or document related to this transaction, and any  contract formation or record-keeping, in each case, through electronic means, shall have the same  legal validity and enforceability as a manually executed signature or use of a paper-based record- keeping system to the fullest extent permitted by applicable law, including the Federal Electronic  Signatures in Global and National Commerce Act, the New York State Electronic Signatures and  Records Act, or any similar state law based on the Uniform Electronic Transactions Act, and the  parties hereto hereby waive any objection to the contrary.  SECTION 4.05.  Binding Nature.  The provisions of this Amendment shall be binding upon and  shall inure to the benefit of the parties hereto and their respective successors and assigns permitted  by the Loan Documents; provided that no Obligor may assign or otherwise transfer any of its rights  or obligations hereunder without the prior written consent of the Agent.  SECTION 4.06.   Captions. The captions and section headings appearing herein are included  solely for convenience of reference and are not intended to affect the interpretation of any  provision of this Amendment.  SECTION 4.07.  Severability.  If any provision hereof is found by a court to be invalid or  unenforceable, to the fullest extent permitted by any applicable Law the parties agree that such  invalidity or unenforceability shall not impair the validity or enforceability of any other provision  hereof.  SECTION 4.08.  Integration.  This Amendment constitutes the entire agreement among the  parties with respect to the subject matter hereof and supersedes any and all previous agreements  and understandings, oral or written, relating to the subject matter hereof.  [Signature pages to follow]  





 






 NY-2439688  IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly  executed and delivered as of the date hereof.  PARENT:  XERIS BIOPHARMA HOLDINGS, INC.  By _______________________________________  Name:  Title:   BORROWER:  XERIS PHARMACEUTICALS, INC.  By _______________________________________  Name:  Title:   /s/ Steven M. Pieper Steven M. Pieper Chief Finance Officer  /s/ Steven M. Pieper Steven M. Pieper Chief Finance Officer  





 






 NY-2439688  AGENT:  HAYFIN SERVICES LLP  By _______________________________________  Name:   Title:   Authorised Signatory  Vikas Mehta /s/ Vikas Mehta 





 






 NY-2439688  LENDERS:  HAYFIN SOF III LUXCO S.À R.L.  By ______________________________________  Name:  Title:   HAYFIN HEALTHCARE OPPORTUNITIES  LUXCO S.À R.L.  By ______________________________________  Name:  Title:   HAYFIN BIG CYPRESS LUXCO S.À R.L.  By ______________________________________  Name:  Title:   HAYFIN CHIEF LUXCO S.À R.L.  By ______________________________________  Name:  Title:   HAYFIN HOSTPLUS LUXCO S.À R.L.  By ______________________________________  Name:  Title:   Lina Kavoliune              Diana Kon Kam King /s/ Lina Kavoliune                /s/ Diana Kon Kam King /s/ Lina Kavoliune                /s/ Diana Kon Kam King Manager                              Manager Lina Kavoliune              Diana Kon Kam King Manager                              Manager Lina Kavoliune                Ugo De Benedetti /s/ Lina Kavoliune                /s/ Ugo De Benedetti Manager                              Manager /s/ Lina Kavoliune                /s/ Diana Kon Kam King Lina Kavoliune                Diana Kon Kam King Manager                              Manager /s/ Lina Kavoliune                /s/ Ugo De Benedetti Lina Kavoliune               Ugo De Benedetti Manager                              Manager 





 






 NY-2439688  HAYFIN OPAL 2020 (A) LP, acting by its  manager Hayfin Management Limited  By ______________________________________  Name:  Title:   HAYFIN OPAL 2020 (B) LP, acting by its  manager Hayfin Management Limited  By ______________________________________  Name:  Title:   HAYFIN HAMILTON LUXCO S.À R.L.  By ______________________________________  Name:  Title:   SUNHAY LUXCO S.À R.L.  By ______________________________________  Name:  Title:   /s/ Joshua Gallitano Joshua Gallitano Director /s/ Joshua Gallitano Joshua Gallitano Director Lina Kavoliune              Diana Kon Kam King /s/ Lina Kavoliune               /s/ Diana Kon Kam King Manager                       Manager Lina Kavoliune              Diana Kon Kam King /s/ Lina Kavoliune               /s/ Diana Kon Kam King Manager                       Manager