Execution Version
LIMITED WAIVER AGREEMENT
THIS LIMITED WAIVER AGREEMENT (this “Agreement”), dated as of March 22, 2023, is made among Impel Pharmaceuticals Inc., a Delaware corporation (the “Borrower”), the lenders listed on the signature pages hereof (each a “Lender” and, collectively, the “Lenders”), and Oaktree Fund Administration, LLC, as administrative agent for the Lenders (in such capacity, the “Administrative Agent”).
WHEREAS, the Borrower, the Guarantors (as defined in the Credit Agreement), the Lenders and the Administrative Agent are party to that certain Credit Agreement and Guaranty, dated as of March 17, 2022 (as amended, restated, amended and restated, extended, supplemented or otherwise modified from time to time, the “Credit Agreement”). The Borrower has requested that the Administrative Agent and Lenders party hereto agree to waive non-compliance with certainprovisions of the Credit Agreement, and the Administrative Agent and the Lenders party hereto have agreed to such request, subject to the terms and conditions hereof.
WHEREAS, the Borrower has notified the Administrative Agent that it anticipates an Event of Default will occur under the Credit Agreement pursuant to Section 11.01(e) as a result of the Borrower’s expected failure to comply with Section 8.01(b) because the audit report and opinion of Ernst & Young LLP relating to the Borrower’s annual consolidated financials for the fiscalyear ending December31, 2022 is expected to include a “going concern” or like qualification or exception or emphasis of matter of going concern footnote (the “Subject Default”).
WHEREAS, the Borrowers have requested that the Administrative Agent and the Majority Lenders waive the Subject Defaultand the Administrative Agent and the MajorityLenders agreed to do so, subject to the terms and conditions hereof.
Accordingly, the parties heretoagree as follows:
SECTION 1 Definitions; Interpretation. All capitalized termsused in this Agreement (including in the recitals hereof) and not otherwise defined herein shall have the meanings assigned to them in the Credit Agreement. The rules of interpretation set forth in Section 1.03 of the Credit Agreementshall be applicable to this Agreement and are incorporated herein by this reference.
SECTION 2 Limited Waiver. Effective as of the date first set forth aboveand so long as no Default or Event of Default exists under the Credit Agreement as of the date first set above (other than the Subject Default), the Administrative Agent and the Majority Lenders hereby waive the Subject Default (the “Waived Provision”).
SECTION 3 Limitation of Waiver. The waiver set forth in Section 2, above, is specific as to content and time and is effectiveonly for the purposes set forth herein and shall be limitedprecisely as writtenand shall not be deemed to (a) be a consent to any amendment, waiver or modification of any other term or condition of any Loan Document, (b) otherwise prejudice any right or remedy which the Lenders or Administrative Agent may now have or may have in the future under or in connection with any Loan Document or (c) constitute a waiver of any other current or future default or breach of any other terms in the Credit Agreementor any documents signed by any Obligorin favor of the Administrative Agent and/or the Lenders.
SECTION 4 Release. In consideration for the Lenders agreeing to waive the Subject Default, the Borrower (on behalfof itself and its Subsidiaries and Affiliates) and their successors-in-title, legal representatives and assignees and, to the extent the same is claimed by right of, through or under any Borrower for their past, present and future employees, agents, representatives, officers, directors, shareholders, and trustees (each,a “Releasing Party” and collectively, the “Releasing Parties”), does hereby remise, release and discharge, and shall be deemed to have forever remised, released and discharged, the Administrative Agent and the Lenders under the Credit Agreement, and the Administrative Agent’s and each such Lender’s respective successors-in-title, legal representatives and assignees, past, present and future officers, directors, members, managers, shareholders, trustees, agents, employees, consultants, experts, advisors, attorneys and other professionals, and all other persons and entities to whom any of the foregoing would be liable if such persons or entities were found to be liable to any Releasing Party, or any of them (collectively hereinafter the “Lender Parties”), from any and all manner of action and actions, cause andcauses of action,claims, charges, demands,counterclaims, suits, debts,dues, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies, damages, judgments, expenses, executions, liens, claims of liens, claims of costs, penalties, attorneys’ fees, or any other compensation, recovery or relief on account of any liability, obligation, demand or cause of action of whatever nature, whether in law, equityor
otherwise (including without limitation thosearising under the Bankruptcy Code and interest or other carrying costs, penalties, legal, accounting and other professional fees and expenses, and incidental, consequential and punitive damages payable to third parties), whether known or unknown, fixed or contingent, joint and/or several, secured or unsecured, due or not due, primary or secondary, liquidated or unliquidated, contractual or tortious, direct, indirect, or derivative, asserted or unasserted, foreseen or unforeseen, suspected or unsuspected, now existing, heretofore existing or which may heretofore accrue against any of the Lender Parties, whether held in a personal or representative capacity, and which are based on any act, fact, event or omissionor other matter,cause or thing occurring at or from any time prior to and including the date hereof in any way, directly or indirectly arising out of, connected with or relating to this Amendmentor any other Loan Documentand the transactions contemplated thereby, and all other agreements, certificates, instruments and other documentsand statements (whetherwritten or oral) related to any of the foregoing.
SECTION 5 Miscellaneous.
a)Credit Agreement Otherwise Not Affected; No Waiver. Exceptas expressly contemplated hereby, the Credit Agreementshall remain unchangedand in full force and effect and is herebyratified and confirmed in all respects. The Lenders’ and the Administrative Agent’s execution and delivery of, or acceptance of, this Agreement shall not be deemed to create a course of dealing or otherwise create any express or implied duty by any of them to provide any other or further amendments, consents or waiversin the future. Nothingcontained herein shall be deemed a waiveror consent in respect of (or otherwiseaffect the Administrative Agent’sor the Lenders’ ability to enforce) any Default or Event of Default not explicitly waived by Section 2.
b)Binding Effect. This Agreement shall be binding upon, inure to the benefit of and be enforceable by the Borrower, the Administrative Agent and each Lender and their respective successors and assigns.
c)Governing Law; Submission to Jurisdiction; Waiver of Venue; WAIVER OF JURY TRIAL. The terms of Sections 14.09, 14.10, and 14.11 of the CreditAgreement with respectto governing law, submission to jurisdiction, waiver of venue and waiver of jury trial are incorporated herein by reference, mutatis mutandis, and the parties hereto agree to such terms.
d)Complete Agreement; Amendments. This Agreement and the other Loan Documents, contains the entire and exclusive agreement of the parties hereto and thereto with reference to the matters discussed herein and therein. This Agreement supersedes all prior commitments, drafts, communications, discussions and understandings, oral or written,with respect thereto.This Agreement may not be modified, amended or otherwise altered except in accordance with the terms of Section 14.04 of the Credit Agreement.
e)Severability. If any provision of this Agreement is determined to be invalid or unenforceable to the fullest extent permitted by any Law the parties agree that such invalidity or unenforceability shall not impair the validity or enforceability of any other provision hereof..
f)Counterparts; Effectiveness. This Agreement 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 Agreement by signing any such counterpart. Delivery of an executed signature page of this Agreement by facsimile transmission or electronic transmission (in PDF format) shall be effective as delivery of a manually executed counterpart hereof. This Agreement shall become effective when counterparts hereof executed on behalf of the Borrower, the Administrative Agent and the Required Lenders party hereto shall have been received by the Administrative Agent.
g)Loan Documents. This Agreement shall constitute a Loan Document.
h)Fees and Expenses. The Borrower shall pay all of the Lenders’ and Agent’s fees and expenses incurred in connection with this Agreement.
[Remainder of page intentionally left blank]
Execution Version
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement, as of the date first above written.
THE BORROWER
IMPEL PHARMACEUTICALS INC.
By: /s/ Rajiv Amin
Name: Rajiv Amin
Title: VP Corporate Controller (Interim CFO)
THE ADMINISTRATIVE AGENT
OAKTREE FUND ADMINISTRATION, LLC
By: Oaktree CapitalManagement, L.P.
Its: Managing Member
By: /s/ Mary Gallegly
Name: Mary Gallegly
Title: Managing Director
By: /s/ Matthew Stewart
Name: Matthew Stewart
Title: Managing Director
THE LENDERS
INPRS Strategic Credit Holdings,LLC
By:Oaktree Capital Management, L.P.
Its: Manager
By: /s/ Mary Gallegly
Name: Mary Gallegly
Title: Managing Director
By: /s/ Matthew Stewart
Name: Matthew Stewart
Title: Managing Director
Oaktree AZ Strategic LendingFund, L.P.
By: Oaktree AZ Strategic Lending Fund GP, L.P.
Its: General Partner
By: Oaktree Fund GP IIA, LLC
Its: General Partner
By:Oaktree Fund GP II, L.P.
Its: Managing Member
By: /s/ Mary Gallegly
Name: Mary Gallegly
Title: Authorized Signatory
By: /s/ Matthew Stewart
Name: Matthew Stewart
Title: Authorized Signatory
Oaktree Diversified Income Fund, Inc.
By:Oaktree Fund Advisors,LLC
Its: Investment Adviser
By: /s/ Mary Gallegly
Name: Mary Gallegly
Title: Managing Director
By: /s/ Matthew Stewart
Name: Matthew Stewart
Title: Managing Director
Oaktree GCP Fund DelawareHoldings, L.P.
By: Oaktree Global Credit Plus Fund GP, L.P.
Its:General Partner
By: Oaktree Global CreditPlus Fund GP Ltd.
Its: General Partner
By:Oaktree Capital Management, L.P.
Its: Director
By: /s/ Mary Gallegly
Name: Mary Gallegly
Title: Managing Director
By: /s/ Matthew Stewart
Name: Matthew Stewart
Title: Managing Director
Oaktree Gilead Investment Fund AIF (Delaware), L.P.
By: Oaktree Fund AIF Series,L.P. – Series T
Its: General Partner
By: Oaktree Fund GP AIF, LLC
Its: Managing Member
By:Oaktree Fund GP III, L.P.
Its: Managing Member
By: /s/ Mary Gallegly
Name: Mary Gallegly
Title: Authorized Signatory
By: /s/ Matthew Stewart
Name: Matthew Stewart
Title: Authorized Signatory
Oaktree LSL Fund Delaware Holdings EURRC, L.P.
By: Oaktree Life SciencesLending Fund GP, L.P.
Its: General Partner
By: Oaktree Life SciencesLending Fund GP Ltd.
Its: General Partner
By:Oaktree Capital Management, L.P.
Its: Director
By: /s/ Mary Gallegly
Name: Mary Gallegly
Title: Managing Director
By: /s/ Matthew Stewart
Name: Matthew Stewart
Title: Managing Director
Oaktree LSL Fund Holdings EURRC S.à r.l.
26A, Boulevard Royal L-2449 Luxembourg
RCS Luxembourg B269245
By /s/ Martin Eckel
Name: Martin Eckel
Title: Manager
By /s/ Hugo Neuman
Name: Hugo Neuman
Title: Manager
Oaktree PRE Life SciencesFund, L.P.
By: Oaktree Pre Life Sciences Fund GP, L.P.
Its: General Partner
By: Oaktree Fund GP IIA, LLC
Its: General Partner
By:Oaktree Fund GP II, L.P.
Its: Managing Member
By: /s/ Mary Gallegly
Name: Mary Gallegly
Title: Authorized Signatory
By: /s/ Matthew Stewart
Name: Matthew Stewart
Title: Authorized Signatory
Oaktree Specialty Lending Corporation
By:Oaktree Fund Advisors,LLC
Its: Investment Advisor
By: /s/ Mary Gallegly
Name: Mary Gallegly
Title: Managing Director
By: /s/ Matthew Stewart
Name: Matthew Stewart
Title: Managing Director
Oaktree Strategic Credit Fund
By:Oaktree Fund Advisors,LLC
Its: Investment Advisor
By: /s/ Mary Gallegly
Name: Mary Gallegly
Title: Managing Director
By: /s/ Matthew Stewart
Name: Matthew Stewart
Title: Managing Director
Oaktree-Forrest Multi-Strategy, LLC
By:Oaktree Capital Management, L.P.
Its: Manager
By: /s/ Mary Gallegly
Name: Mary Gallegly
Title: Managing Director
By: /s/ Matthew Stewart
Name: Matthew Stewart
Title: Managing Director
Oaktree-TBMR StrategicCredit Fund C, LLC
By:Oaktree Capital Management, L.P.
Its: Manager
By: /s/ Mary Gallegly
Name: Mary Gallegly
Title: Managing Director
By: /s/ Matthew Stewart
Name: Matthew Stewart
Title: Managing Director
Oaktree-TBMR StrategicCredit Fund F, LLC
By:Oaktree Capital Management, L.P.
Its: Manager
By: /s/ Mary Gallegly
Name: Mary Gallegly
Title: Managing Director
By: /s/ Matthew Stewart
Name: Matthew Stewart
Title: Managing Director
Oaktree-TBMR StrategicCredit Fund G, LLC
By:Oaktree Capital Management, L.P.
Its: Manager
By: /s/ Mary Gallegly
Name: Mary Gallegly
Title: Managing Director
By: /s/ Matthew Stewart
Name: Matthew Stewart
Title: Managing Director
Oaktree-TCDRS StrategicCredit, LLC
By: Oaktree Capital Management, L.P.
Its: Manager
By: /s/ Mary Gallegly
Name: Mary Gallegly
Title: Managing Director
By: /s/ Matthew Stewart
Name: Matthew Stewart
Title: Managing Director
Oaktree-TSE 16 Strategic Credit, LLC
By:Oaktree Capital Management, L.P.
Its: Manager
By: /s/ Mary Gallegly
Name: Mary Gallegly
Title: Managing Director
By: /s/ Matthew Stewart
Name: Matthew Stewart
Title: Managing Director
OSCF Lending SPV, LLC
By: Oaktree Strategic CreditFund
Its: Managing Member
By: Oaktree Fund Advisors,LLC
Its: Investment Advisor
By: /s/ Mary Gallegly
Name: Mary Gallegly
Title: Managing Director
By: /s/ Matthew Stewart
Name: Matthew Stewart
Title: Managing Director
