EXECUTION VERSION
Exhibit 10.1
FIRST AMENDMENT TO Credit agreement AND guaranty AND REVENUE INTEREST FINANCING AGREEMENT
This Amendment to Credit Agreement and Guaranty and Revenue Interest Financing Agreement (this “Amendment”) is made as of August 21, 2023, by and among IMPEL PHARMACEUTICALS INC., a Delaware corporation, as borrower (“Borrower”), the Lenders party to the Credit Agreement (as defined below) (in their capacities as such, the “Lenders”), the Purchasers party to the Revenue Interest Financing Agreement (as defined below) (in their capacities as such, the “Purchasers”), OAKTREE FUND ADMINISTRATION, LLC, in its separate capacities as administrative agent for the Lenders (in such capacity, the “Administrative Agent”) and as administrative agent under the Revenue Interest Financing Agreement (in such capacity, the “RIFA Agent”).
WHEREAS, the Borrower, the Administrative Agent and the Lenders party thereto previously entered into that certain Credit Agreement and Guaranty, dated as of March 17, 2022 (including the exhibits and other attachments thereto, as amended, restated, supplemented or otherwise modified from time to time prior to the date hereof, the “Existing Credit Agreement”, and as further amended by this Amendment, the “Credit Agreement”);
WHEREAS, Borrower, Purchasers and the RIFA Agent are parties to the Revenue Interest Financing Agreement, dated as of March 17, 2022 (as amended, restated, supplemented or otherwise modified from time to time, the “Revenue Interest Financing Agreement”);
WHEREAS, the Borrower has advised the Agent that the Borrower is in breach of Section 10.01 of the Credit Agreement from and after July 19, 2023 (the “Default Date”), as a result of which an Event of Default has occurred and is continuing pursuant to Section 11.01(d) of the Credit Agreement (the “Specified Default”) as of the Default Date;
WHEREAS, upon an Event of Default the Majority Lenders may instruct the Administrative Agent may take certain remedies upon such Event of Default;
WHEREAS, the Borrower has requested, and certain of the Lenders have agreed (without waiving the Specified Default), to provide new Tranche A-2 Term Loans in an aggregate principal amount equal to $12,000,000, of which (i) $3,000,000 shall consist of new money term loans and (ii) $9,000,000 shall be made to the Lenders constituting Purchasers on a cashless basis pursuant to an exchange whereby each such Lender, in its capacity as Purchaser, shall contribute certain of its claims in respect of the Obligations outstanding under the Revenue Interest Financing Agreement (the “RIFA Obligations”) in exchange for the Borrower issuing to it such Purchaser’s Proportionate Share (as defined in the Revenue Interest Financing Agreement) of Tranche A-2 Term Loans, as set forth in Section 3 below;
WHEREAS, the consummation of the exchange contemplated by Section 3 hereof is a condition precedent to the Lenders’ willingness to provide the new money Tranche A-2 Term Loans and the other amendments contemplated hereby; and
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WHEREAS, the Borrower, the Administrative Agent and the Lenders have agreed to amend the Existing Credit Agreement, and the Borrower, the RIF Agent and the Purchasers have agreed to amend the Revenue Interest Financing Agreement, in each case, on the terms and subject to the conditions set forth herein.
NOW, THEREFORE, for and in consideration of the above premises and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by the parties hereto, each of the Borrower, the Administrative Agent, the Lenders party hereto, the RIFA Agent and the Purchasers party hereto hereby covenants and agrees as follows:
It is agreed that no conforming revisions have been made to the other Loan Documents, and, to the extent that there other revisions to the Loan Documents necessitated by this Agreement, the parties hereto agree to cooperate and make reasonable revisions to such other Loan Documents to reflect the agreements contained in this Amendment. Any references to the Credit Agreement in the other Loan Documents shall mean the Credit Agreement as amended by this Agreement.
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upon which certificates shall be in form and substance reasonably satisfactory to the Administrative Agent and upon which the Administrative Agent and the Lenders may conclusively rely until they shall have received a further certificate of the Responsible Officer of any such Person cancelling or amending the prior certificate of such Person.
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[SIGNATURE PAGES FOLLOW]
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[Signature Page to Forbearance Agreement]
4886-6992-8312 v.1.5
BORROWER:
IMPEL PHARMACEUTICALS INC. | ||
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By: | /s/ Adrian Adams | |
| Name: | Adrian Adams |
| Title: | Chief Executive Officer |
[Signature Page to First Amendment]
ADMINISTRATIVE AGENT:
OAKTREE FUND ADMINISTRATION, LLC
By: Oaktree Capital Management, L.P.
Its: Managing Member
By: /s/ Matthew Stewart
Name: Matthew Stewart
Title: Managing Director
By: /s/ Mary Gallegly
Name: Mary Gallegly
Title: Managing Director
[Signature Page to First Amendment]
| LENDERS: | ||
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| OAKTREE-TCDRS STRATEGIC CREDIT, LLC | ||
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| By: | Oaktree Capital Management, L.P. | |
| Its: | Manager | |
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| By: | /s/ Matthew Stewart | |
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| Name: | Matthew Stewart |
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| Title: | Managing Director |
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| By: | /s/ Mary Gallegly | |
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| Name: | Mary Gallegly |
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| Title: | Managing Director |
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| Address for Notices: 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Email: Oaktreeagency@alterdomus.com
With a copy to: Oaktree Capital Management, L.P. 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Attn: Aman Kumar Email: AmKumar@oaktreecapital.com
With a copy to: Sullivan & Cromwell LLP 125 Broad Street New York, NY 10004 Attn: Ari B. Blaut Email: blauta@sullcrom.com
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[Signature Page to First Amendment]
| OAKTREE-FORREST MULTI-STRATEGY, LLC | ||
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| By: | Oaktree Capital Management, L.P. | |
| Its: | Manager | |
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| By: | /s/ Matthew Stewart | |
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| Name: | Matthew Stewart |
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| Title: | Managing Director |
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| By: | /s/ Mary Gallegly | |
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| Name: | Mary Gallegly |
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| Title: | Managing Director |
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| Address for Notices: 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Email: Oaktreeagency@alterdomus.com
With a copy to: Oaktree Capital Management, L.P. 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Attn: Aman Kumar Email: AmKumar@oaktreecapital.com
With a copy to: Sullivan & Cromwell LLP 125 Broad Street New York, NY 10004 Attn: Ari B. Blaut Email: blauta@sullcrom.com
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[Signature Page to First Amendment]
| OAKTREE-TMBR STRATEGIC CREDIT FUND C, LLC | ||
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| By: | Oaktree Capital Management, L.P. | |
| Its: | Manager | |
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| By: | /s/ Matthew Stewart | |
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| Name: | Matthew Stewart |
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| Title: | Managing Director |
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| By: | /s/ Mary Gallegly | |
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| Name: | Mary Gallegly |
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| Title: | Managing Director |
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| Address for Notices: 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Email: Oaktreeagency@alterdomus.com
With a copy to: Oaktree Capital Management, L.P. 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Attn: Aman Kumar Email: AmKumar@oaktreecapital.com
With a copy to: Sullivan & Cromwell LLP 125 Broad Street New York, NY 10004 Attn: Ari B. Blaut Email: blauta@sullcrom.com
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[Signature Page to First Amendment]
| OAKTREE-TMBR STRATEGIC CREDIT FUND F, LLC | ||
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| By: | Oaktree Capital Management, L.P. | |
| Its: | Manager | |
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| By: | /s/ Matthew Stewart | |
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| Name: | Matthew Stewart |
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| Title: | Managing Director |
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| By: | /s/ Mary Gallegly | |
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| Name: | Mary Gallegly |
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| Title: | Managing Director |
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| Address for Notices: 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Email: Oaktreeagency@alterdomus.com
With a copy to: Oaktree Capital Management, L.P. 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Attn: Aman Kumar Email: AmKumar@oaktreecapital.com
With a copy to: Sullivan & Cromwell LLP 125 Broad Street New York, NY 10004 Attn: Ari B. Blaut Email: blauta@sullcrom.com
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[Signature Page to First Amendment]
| OAKTREE-TMBR STRATEGIC CREDIT FUND G, LLC | ||
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| By: | Oaktree Capital Management, L.P. | |
| Its: | Manager | |
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| By: | /s/ Matthew Stewart | |
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| Name: | Matthew Stewart |
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| Title: | Managing Director |
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| By: | /s/ Mary Gallegly | |
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| Name: | Mary Gallegly |
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| Title: | Managing Director |
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| Address for Notices: 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Email: Oaktreeagency@alterdomus.com
With a copy to: Oaktree Capital Management, L.P. 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Attn: Aman Kumar Email: AmKumar@oaktreecapital.com
With a copy to: Sullivan & Cromwell LLP 125 Broad Street New York, NY 10004 Attn: Ari B. Blaut Email: blauta@sullcrom.com
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[Signature Page to First Amendment]
| OAKTREE-TSE 16 STRATEGIC CREDIT, LLC | ||
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| By: | Oaktree Capital Management, L.P. | |
| Its: | Manager | |
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| By: | /s/ Matthew Stewart | |
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| Name: | Matthew Stewart |
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| Title: | Managing Director |
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| By: | /s/ Mary Gallegly | |
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| Name: | Mary Gallegly |
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| Title: | Managing Director |
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| Address for Notices: 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Email: Oaktreeagency@alterdomus.com
With a copy to: Oaktree Capital Management, L.P. 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Attn: Aman Kumar Email: AmKumar@oaktreecapital.com
With a copy to: Sullivan & Cromwell LLP 125 Broad Street New York, NY 10004 Attn: Ari B. Blaut Email: blauta@sullcrom.com
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[Signature Page to First Amendment]
| INPRS STRATEGIC CREDIT HOLDINGS, LLC | ||
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| By: | Oaktree Capital Management, L.P. | |
| Its: | Manager | |
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| By: | /s/ Matthew Stewart | |
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| Name: | Matthew Stewart |
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| Title: | Managing Director |
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| By: | /s/ Mary Gallegly | |
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| Name: | Mary Gallegly |
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| Title: | Managing Director |
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| Address for Notices: 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Email: Oaktreeagency@alterdomus.com
With a copy to: Oaktree Capital Management, L.P. 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Attn: Aman Kumar Email: AmKumar@oaktreecapital.com
With a copy to: Sullivan & Cromwell LLP 125 Broad Street New York, NY 10004 Attn: Ari B. Blaut Email: blauta@sullcrom.com
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[Signature Page to First Amendment]
| OAKTREE GILEAD INVESTMENT FUND AIF (DELAWARE), L.P. | ||
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| By: | Oaktree Fund AIF Series, L.P. – Series T | |
| Its: | General Partner | |
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| By: | Oaktree Fund GP AIF, LLC | |
| Its: | Managing Member | |
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| By: | Oaktree Fund GP III, L.P. | |
| Its: | General Partner | |
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| By: | /s/ Matthew Stewart | |
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| Name: | Matthew Stewart |
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| Title: | Authorized Signatory |
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| By: | /s/ Mary Gallegly | |
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| Name: | Mary Gallegly |
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| Title: | Authorized Signatory |
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| Address for Notices: 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Email: Oaktreeagency@alterdomus.com
With a copy to: Oaktree Capital Management, L.P. 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Attn: Aman Kumar Email: AmKumar@oaktreecapital.com
With a copy to: Sullivan & Cromwell LLP 125 Broad Street New York, NY 10004 Attn: Ari B. Blaut Email: blauta@sullcrom.com
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[Signature Page to First Amendment]
| OAKTREE SPECIALTY LENDING CORPORATION | ||
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| By: | Oaktree Fund Advisors, LLC | |
| Its: | Investment Adviser | |
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| By: | /s/ Matthew Stewart | |
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| Name: | Matthew Stewart |
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| Title: | Managing Director |
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| By: | /s/ Mary Gallegly | |
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| Name: | Mary Gallegly |
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| Title: | Managing Director |
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| Address for Notices: 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Email: Oaktreeagency@alterdomus.com
With a copy to: Oaktree Capital Management, L.P. 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Attn: Aman Kumar Email: AmKumar@oaktreecapital.com
With a copy to: Sullivan & Cromwell LLP 125 Broad Street New York, NY 10004 Attn: Ari B. Blaut Email: blauta@sullcrom.com
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[Signature Page to First Amendment]
| OAKTREE STRATEGIC CREDIT FUND | ||
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| By: | Oaktree Fund Advisors, LLC | |
| Its: | Investment Advisor | |
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| By: | /s/ Matthew Stewart | |
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| Name: | Matthew Stewart |
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| Title: | Managing Director |
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| By: | /s/ Mary Gallegly | |
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| Name: | Mary Gallegly |
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| Title: | Managing Director |
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| Address for Notices: 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Email: Oaktreeagency@alterdomus.com
With a copy to: Oaktree Capital Management, L.P. 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Attn: Aman Kumar Email: AmKumar@oaktreecapital.com
With a copy to: Sullivan & Cromwell LLP 125 Broad Street New York, NY 10004 Attn: Ari B. Blaut Email: blauta@sullcrom.com
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[Signature Page to First Amendment]
| OSCF LENDING SPV, LLC | ||
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| By: | Oaktree Strategic Credit Fund | |
| Its: | Managing Member | |
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| By: | Oaktree Fund Advisors, LLC | |
| Its: | Investment Advisor | |
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| By: | /s/ Matthew Stewart | |
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| Name: | Matthew Stewart |
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| Title: | Managing Director |
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| By: | /s/ Mary Gallegly | |
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| Name: | Mary Gallegly |
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| Title: | Managing Director |
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| Address for Notices: 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Email: Oaktreeagency@alterdomus.com
With a copy to: Oaktree Capital Management, L.P. 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Attn: Aman Kumar Email: AmKumar@oaktreecapital.com
With a copy to: Sullivan & Cromwell LLP 125 Broad Street New York, NY 10004 Attn: Ari B. Blaut Email: blauta@sullcrom.com
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[Signature Page to First Amendment]
| OAKTREE GCP FUND DELAWARE HOLDINGS, L.P. | ||
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| By: | Oaktree Global Credit Plus Fund GP, L.P. | |
| Its: | General Partner | |
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| By: | Oaktree Global Credit Plus Fund GP, Ltd. | |
| Its: | General Partner
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| By: | Oaktree Capital Management, L.P. | |
| Its: | Director | |
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| By: | /s/ Matthew Stewart | |
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| Name: | Matthew Stewart |
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| Title: | Managing Director |
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| By: | /s/ Mary Gallegly | |
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| Name: | Mary Gallegly |
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| Title: | Managing Director |
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| Address for Notices: 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Email: Oaktreeagency@alterdomus.com
With a copy to: Oaktree Capital Management, L.P. 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Attn: Aman Kumar Email: AmKumar@oaktreecapital.com
With a copy to: Sullivan & Cromwell LLP 125 Broad Street New York, NY 10004 Attn: Ari B. Blaut Email: blauta@sullcrom.com
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[Signature Page to First Amendment]
| OAKTREE DIVERSIFIED INCOME FUND INC. | ||
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| By: | Oaktree Fund Advisors, LLC | |
| Its: | Investment Advisor | |
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| By: | /s/ Matthew Stewart | |
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| Name: | Matthew Stewart |
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| Title: | Managing Director |
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| By: | /s/ Mary Gallegly | |
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| Name: | Mary Gallegly |
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| Title: | Managing Director |
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| Address for Notices: 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Email: Oaktreeagency@alterdomus.com
With a copy to: Oaktree Capital Management, L.P. 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Attn: Aman Kumar Email: AmKumar@oaktreecapital.com
With a copy to: Sullivan & Cromwell LLP 125 Broad Street New York, NY 10004 Attn: Ari B. Blaut Email: blauta@sullcrom.com
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[Signature Page to First Amendment]
| OAKTREE AZ STRATEGIC LENDING FUND, L.P. | ||
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| By: | Oaktree AZ Strategic Lending Fund GP, L.P. | |
| Its: | General Partner | |
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| By: | Oaktree Fund GP IIA, LLC | |
| Its: | General Partner | |
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| By: | Oaktree Fund GP II, L.P. | |
| Its: | Managing Member | |
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| By: | /s/ Matthew Stewart | |
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| Name: | Matthew Stewart |
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| Title: | Authorized Signatory |
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| By: | /s/ Mary Gallegly | |
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| Name: | Mary Gallegly |
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| Title: | Authorized Signatory |
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| Address for Notices: 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Email: Oaktreeagency@alterdomus.com
With a copy to: Oaktree Capital Management, L.P. 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Attn: Aman Kumar Email: AmKumar@oaktreecapital.com
With a copy to: Sullivan & Cromwell LLP 125 Broad Street New York, NY 10004 Attn: Ari B. Blaut Email: blauta@sullcrom.com
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[Signature Page to First Amendment]
| OAKTREE LOAN ACQUISITION FUND, L.P. | ||
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| By: | Oaktree Fund GP IIA, LLC | |
| Its: | General Partner | |
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| By: | Oaktree Fund GP II, L.P. | |
| Its: | Managing Member | |
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| By: | /s/ Matthew Stewart | |
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| Name: | Matthew Stewart |
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| Title: | Authorized Signatory |
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| By: | /s/ Mary Gallegly | |
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| Name: | Mary Gallegly |
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| Title: | Authorized Signatory |
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| Address for Notices: 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Email: Oaktreeagency@alterdomus.com
With a copy to: Oaktree Capital Management, L.P. 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Attn: Aman Kumar Email: AmKumar@oaktreecapital.com
With a copy to: Sullivan & Cromwell LLP 125 Broad Street New York, NY 10004 Attn: Ari B. Blaut Email: blauta@sullcrom.com
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[Signature Page to First Amendment]
| Oaktree LSL Fund Holdings EURRC S.à r.l. | ||
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| By: | /s/ Martin Eckel | |
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| Name: | Martin Eckel |
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| Title: | Manager |
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| By: | /s/ Flora Verrecchia | |
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| Name: | Flora Verrecchia |
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| Title: | Manager |
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| Address for Notices: 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Email: Oaktreeagency@alterdomus.com
With a copy to: Oaktree Capital Management, L.P. 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Attn: Aman Kumar Email: AmKumar@oaktreecapital.com
With a copy to: Sullivan & Cromwell LLP 125 Broad Street New York, NY 10004 Attn: Ari B. Blaut Email: blauta@sullcrom.com
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[Signature Page to First Amendment]
| OAKTREE LSL FUND DELAWARE HOLDINGS EURRC, L.P. | |||||
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| By: | Oaktree Life Sciences Lending Fund GP, L.P. | ||||
| Its: | General Partner | ||||
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| By: | Oaktree Life Sciences Lending Fund GP Ltd. | ||||
| Its: | General Partner | ||||
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| By: | /s/ Matthew Stewart | ||||
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| Name: | Matthew Stewart | |||
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| Title: | Managing Director | |||
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| By: | /s/ Mary Gallegly | ||||
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| Name: | Mary Gallegly | |||
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| Title: | Managing Director
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| Address for Notices: 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Email: Oaktreeagency@alterdomus.com
With a copy to: Oaktree Capital Management, L.P. 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Attn: Aman Kumar Email: AmKumar@oaktreecapital.com
With a copy to: Sullivan & Cromwell LLP 125 Broad Street New York, NY 10004 Attn: Ari B. Blaut Email: blauta@sullcrom.com
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[Signature Page to First Amendment]
[Signature Page to First Amendment]
| OAKTREE PRE LIFE SCIENCES FUND, L.P. | ||
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| By: | Oaktree Pre Life Sciences Fund GP, L.P. | |
| Its: | General Partner | |
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| By: | Oaktree Fund GP IIA, LLC | |
| Its: | General Partner | |
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| By: | Oaktree Fund GP II, L.P. | |
| Its: | Managing Member | |
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| By: | /s/ Matthew Stewart | |
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| Name: | Matthew Stewart |
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| Title: | Authorized Signatory |
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| By: | /s/ Mary Gallegly | |
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| Name: | Mary Gallegly |
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| Title: | Authorized Signatory |
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| Address for Notices: 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Email: Oaktreeagency@alterdomus.com
With a copy to: Oaktree Capital Management, L.P. 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Attn: Aman Kumar Email: AmKumar@oaktreecapital.com
With a copy to: Sullivan & Cromwell LLP 125 Broad Street New York, NY 10004 Attn: Ari B. Blaut Email: blauta@sullcrom.com
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[Signature Page to First Amendment]
RIFA AGENT:
OAKTREE FUND ADMINISTRATION, LLC
By: Oaktree Capital Management, L.P.
Its: Managing Member
| By: | /s/ Matthew Stewart | |
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| Name: | Matthew Stewart |
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| Title: | Managing Director |
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| By: | /s/ Mary Gallegly | |
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| Name: | Mary Gallegly |
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| Title: | Managing Director |
[Signature Page to First Amendment]
PURCHASERS: | |||
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| OAKTREE-TCDRS STRATEGIC CREDIT, LLC | ||
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| By: | Oaktree Capital Management, L.P. | |
| Its: | Manager | |
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| By: | /s/ Matthew Stewart | |
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| Name: | Matthew Stewart |
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| Title: | Managing Director |
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| By: | /s/ Mary Gallegly | |
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| Name: | Mary Gallegly |
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| Title: | Managing Director |
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| Address for Notices: 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Email: Oaktreeagency@alterdomus.com
With a copy to: Oaktree Capital Management, L.P. 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Attn: Aman Kumar Email: AmKumar@oaktreecapital.com
With a copy to: Sullivan & Cromwell LLP 125 Broad Street New York, NY 10004 Attn: Ari B. Blaut Email: blauta@sullcrom.com
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[Signature Page to First Amendment]
| OAKTREE-FORREST MULTI-STRATEGY, LLC | ||
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| By: | Oaktree Capital Management, L.P. | |
| Its: | Manager | |
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| By: | /s/ Matthew Stewart | |
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| Name: | Matthew Stewart |
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| Title: | Managing Director |
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| By: | /s/ Mary Gallegly | |
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| Name: | Mary Gallegly |
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| Title: | Managing Director |
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| Address for Notices: 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Email: Oaktreeagency@alterdomus.com
With a copy to: Oaktree Capital Management, L.P. 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Attn: Aman Kumar Email: AmKumar@oaktreecapital.com
With a copy to: Sullivan & Cromwell LLP 125 Broad Street New York, NY 10004 Attn: Ari B. Blaut Email: blauta@sullcrom.com
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[Signature Page to First Amendment]
| OAKTREE-TMBR STRATEGIC CREDIT FUND C, LLC | ||
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| By: | Oaktree Capital Management, L.P. | |
| Its: | Manager | |
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| By: | /s/ Matthew Stewart | |
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| Name: | Matthew Stewart |
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| Title: | Managing Director |
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| By: | /s/ Mary Gallegly | |
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| Name: | Mary Gallegly |
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| Title: | Managing Director |
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| Address for Notices: 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Email: Oaktreeagency@alterdomus.com
With a copy to: Oaktree Capital Management, L.P. 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Attn: Aman Kumar Email: AmKumar@oaktreecapital.com
With a copy to: Sullivan & Cromwell LLP 125 Broad Street New York, NY 10004 Attn: Ari B. Blaut Email: blauta@sullcrom.com
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[Signature Page to First Amendment]
| OAKTREE-TMBR STRATEGIC CREDIT FUND F, LLC | ||
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| By: | Oaktree Capital Management, L.P. | |
| Its: | Manager | |
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| By: | /s/ Matthew Stewart | |
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| Name: | Matthew Stewart |
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| Title: | Managing Director |
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| By: | /s/ Mary Gallegly | |
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| Name: | Mary Gallegly |
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| Title: | Managing Director
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| Address for Notices: 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Email: Oaktreeagency@alterdomus.com
With a copy to: Oaktree Capital Management, L.P. 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Attn: Aman Kumar Email: AmKumar@oaktreecapital.com
With a copy to: Sullivan & Cromwell LLP 125 Broad Street New York, NY 10004 Attn: Ari B. Blaut Email: blauta@sullcrom.com
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[Signature Page to First Amendment]
| OAKTREE-TMBR STRATEGIC CREDIT FUND G, LLC | ||
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| By: | Oaktree Capital Management, L.P. | |
| Its: | Manager | |
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| By: | /s/ Matthew Stewart | |
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| Name: | Matthew Stewart |
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| Title: | Managing Director |
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| By: | /s/ Mary Gallegly | |
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| Name: | Mary Gallegly |
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| Title: | Managing Director |
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| Address for Notices: 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Email: Oaktreeagency@alterdomus.com
With a copy to: Oaktree Capital Management, L.P. 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Attn: Aman Kumar Email: AmKumar@oaktreecapital.com
With a copy to: Sullivan & Cromwell LLP 125 Broad Street New York, NY 10004 Attn: Ari B. Blaut Email: blauta@sullcrom.com
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[Signature Page to First Amendment]
| OAKTREE-TSE 16 STRATEGIC CREDIT, LLC | ||
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| By: | Oaktree Capital Management, L.P. | |
| Its: | Manager | |
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| By: | /s/ Matthew Stewart | |
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| Name: | Matthew Stewart |
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| Title: | Managing Director |
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| By: | /s/ Mary Gallegly | |
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| Name: | Mary Gallegly |
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| Title: | Managing Director |
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| Address for Notices: 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Email: Oaktreeagency@alterdomus.com
With a copy to: Oaktree Capital Management, L.P. 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Attn: Aman Kumar Email: AmKumar@oaktreecapital.com
With a copy to: Sullivan & Cromwell LLP 125 Broad Street New York, NY 10004 Attn: Ari B. Blaut Email: blauta@sullcrom.com
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[Signature Page to First Amendment]
| INPRS STRATEGIC CREDIT HOLDINGS, LLC | ||
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| By: | Oaktree Capital Management, L.P. | |
| Its: | Manager | |
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| By: | /s/ Matthew Stewart | |
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| Name: | Matthew Stewart |
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| Title: | Managing Director |
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| By: | /s/ Mary Gallegly | |
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| Name: | Mary Gallegly |
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| Title: | Managing Director |
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| Address for Notices: 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Email: Oaktreeagency@alterdomus.com
With a copy to: Oaktree Capital Management, L.P. 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Attn: Aman Kumar Email: AmKumar@oaktreecapital.com
With a copy to: Sullivan & Cromwell LLP 125 Broad Street New York, NY 10004 Attn: Ari B. Blaut Email: blauta@sullcrom.com
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[Signature Page to First Amendment]
| OAKTREE GILEAD INVESTMENT FUND AIF (DELAWARE), L.P. | ||
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| By: | Oaktree Fund AIF Series, L.P. – Series T | |
| Its: | General Partner | |
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| By: | Oaktree Fund GP AIF, LLC | |
| Its: | Managing Member | |
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| By: | Oaktree Fund GP III, L.P. | |
| Its: | General Partner | |
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| By: | /s/ Matthew Stewart | |
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| Name: | Matthew Stewart |
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| Title: | Authorized Signatory |
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| By: | /s/ Mary Gallegly | |
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| Name: | Mary Gallegly |
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| Title: | Authorized Signatory |
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| Address for Notices: 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Email: Oaktreeagency@alterdomus.com
With a copy to: Oaktree Capital Management, L.P. 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Attn: Aman Kumar Email: AmKumar@oaktreecapital.com
With a copy to: Sullivan & Cromwell LLP 125 Broad Street New York, NY 10004 Attn: Ari B. Blaut Email: blauta@sullcrom.com
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[Signature Page to First Amendment]
| OAKTREE SPECIALTY LENDING CORPORATION | ||
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| By: | Oaktree Fund Advisors, LLC | |
| Its: | Investment Adviser | |
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| By: | /s/ Matthew Stewart | |
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| Name: | Matthew Stewart |
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| Title: | Managing Director |
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| By: | /s/ Mary Gallegly | |
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| Name: | Mary Gallegly |
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| Title: | Managing Director |
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| Address for Notices: 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Email: Oaktreeagency@alterdomus.com
With a copy to: Oaktree Capital Management, L.P. 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Attn: Aman Kumar Email: AmKumar@oaktreecapital.com
With a copy to: Sullivan & Cromwell LLP 125 Broad Street New York, NY 10004 Attn: Ari B. Blaut Email: blauta@sullcrom.com
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[Signature Page to First Amendment]
| OAKTREE STRATEGIC CREDIT FUND | ||
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| By: | Oaktree Fund Advisors, LLC | |
| Its: | Investment Advisor | |
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| By: | /s/ Matthew Stewart | |
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| Name: | Matthew Stewart |
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| Title: | Managing Director |
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| By: | /s/ Mary Gallegly | |
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| Name: | Mary Gallegly |
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| Title: | Managing Director |
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| Address for Notices: 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Email: Oaktreeagency@alterdomus.com
With a copy to: Oaktree Capital Management, L.P. 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Attn: Aman Kumar Email: AmKumar@oaktreecapital.com
With a copy to: Sullivan & Cromwell LLP 125 Broad Street New York, NY 10004 Attn: Ari B. Blaut Email: blauta@sullcrom.com
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[Signature Page to First Amendment]
| OAKTREE GCP FUND DELAWARE HOLDINGS, L.P. | ||
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| By: | Oaktree Global Credit Plus Fund GP, L.P. | |
| Its: | General Partner | |
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| By: | Oaktree Global Credit Plus Fund GP, Ltd. | |
| Its: | General Partner
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| By: | Oaktree Capital Management, L.P. | |
| Its: | Director | |
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| By: | /s/ Matthew Stewart | |
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| Name: | Matthew Stewart |
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| Title: | Managing Director |
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| By: | /s/ Mary Gallegly | |
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| Name: | Mary Gallegly |
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| Title: | Managing Director |
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| Address for Notices: 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Email: Oaktreeagency@alterdomus.com
With a copy to: Oaktree Capital Management, L.P. 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Attn: Aman Kumar Email: AmKumar@oaktreecapital.com
With a copy to: Sullivan & Cromwell LLP 125 Broad Street New York, NY 10004 Attn: Ari B. Blaut Email: blauta@sullcrom.com
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[Signature Page to First Amendment]
| OAKTREE DIVERSIFIED INCOME FUND INC. | ||
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| By: | Oaktree Fund Advisors, LLC | |
| Its: | Investment Advisor | |
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| By: | /s/ Matthew Stewart | |
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| Name: | Matthew Stewart |
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| Title: | Managing Director |
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| By: | /s/ Mary Gallegly | |
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| Name: | Mary Gallegly |
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| Title: | Managing Director |
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| Address for Notices: 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Email: Oaktreeagency@alterdomus.com
With a copy to: Oaktree Capital Management, L.P. 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Attn: Aman Kumar Email: AmKumar@oaktreecapital.com
With a copy to: Sullivan & Cromwell LLP 125 Broad Street New York, NY 10004 Attn: Ari B. Blaut Email: blauta@sullcrom.com
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[Signature Page to First Amendment]
| OAKTREE AZ STRATEGIC LENDING FUND, L.P. | ||
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| By: | Oaktree AZ Strategic Lending Fund GP, L.P. | |
| Its: | General Partner | |
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| By: | Oaktree Fund GP IIA, LLC | |
| Its: | General Partner | |
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| By: | Oaktree Fund GP II, L.P. | |
| Its: | Managing Member | |
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| By: | /s/ Matthew Stewart | |
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| Name: | Matthew Stewart |
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| Title: | Authorized Signatory |
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| By: | /s/ Mary Gallegly | |
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| Name: | Mary Gallegly |
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| Title: | Authorized Signatory |
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| Address for Notices: 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Email: Oaktreeagency@alterdomus.com
With a copy to: Oaktree Capital Management, L.P. 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Attn: Aman Kumar Email: AmKumar@oaktreecapital.com
With a copy to: Sullivan & Cromwell LLP 125 Broad Street New York, NY 10004 Attn: Ari B. Blaut Email: blauta@sullcrom.com
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[Signature Page to First Amendment]
| Oaktree LSL Fund Holdings EURRC S.à r.l. | ||
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| By: | /s/ Martin Eckel | |
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| Name: | Martin Eckel |
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| Title: | Manager |
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| By: | /s/ Flora Verrecchia | |
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| Name: | Flora Verrecchia |
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| Title: | Manager |
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| Address for Notices: 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Email: Oaktreeagency@alterdomus.com
With a copy to: Oaktree Capital Management, L.P. 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Attn: Aman Kumar Email: AmKumar@oaktreecapital.com
With a copy to: Sullivan & Cromwell LLP 125 Broad Street New York, NY 10004 Attn: Ari B. Blaut Email: blauta@sullcrom.com
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[Signature Page to First Amendment]
| OAKTREE LSL FUND DELAWARE HOLDINGS EURRC, L.P. | |||||
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| By: | Oaktree Life Sciences Lending Fund GP, L.P. | ||||
| Its: | General Partner | ||||
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| By: | Oaktree Life Sciences Lending Fund GP Ltd. | ||||
| Its: | General Partner | ||||
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| By: | /s/ Matthew Stewart | ||||
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| Name: | Matthew Stewart | |||
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| Title: | Managing Director | |||
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| By: | /s/ Mary Gallegly | ||||
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| Name: | Mary Gallegly | |||
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| Title: | Managing Director
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| Address for Notices: 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Email: Oaktreeagency@alterdomus.com
With a copy to: Oaktree Capital Management, L.P. 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Attn: Aman Kumar Email: AmKumar@oaktreecapital.com
With a copy to: Sullivan & Cromwell LLP 125 Broad Street New York, NY 10004 Attn: Ari B. Blaut Email: blauta@sullcrom.com
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[Signature Page to First Amendment]
[Signature Page to First Amendment]
| OAKTREE PRE LIFE SCIENCES FUND, L.P. | ||
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| By: | Oaktree Pre Life Sciences Fund GP, L.P. | |
| Its: | General Partner | |
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| By: | Oaktree Fund GP IIA, LLC | |
| Its: | General Partner | |
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| By: | Oaktree Fund GP II, L.P. | |
| Its: | Managing Member | |
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| By: | /s/ Matthew Stewart | |
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| Name: | Matthew Stewart |
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| Title: | Authorized Signatory |
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| By: | /s/ Mary Gallegly | |
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| Name: | Mary Gallegly |
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| Title: | Authorized Signatory |
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| Address for Notices: 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Email: Oaktreeagency@alterdomus.com
With a copy to: Oaktree Capital Management, L.P. 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Attn: Aman Kumar Email: AmKumar@oaktreecapital.com
With a copy to: Sullivan & Cromwell LLP 125 Broad Street New York, NY 10004 Attn: Ari B. Blaut Email: blauta@sullcrom.com | ||
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[Signature Page to First Amendment]
EXHIBIT A
Execution VersionEXHIBIT A TO FIRST AMENDMENT
CREDIT AGREEMENT AND GUARANTY dated as of March 17, 2022 and amended as of August 21, 2023 by and among IMPEL NEUROPHARMA,PHARMACEUTICALS INC., as the Borrower, THE SUBSIDIARY GUARANTORS FROM TIME TO TIME PARTY HERETO, as the Guarantors, THE LENDERS FROM TIME TO TIME PARTY HERETO as the Lenders, and OAKTREE FUND ADMINISTRATION, LLC, as the Administrative Agent U.S. $50,000,00063,104,103.78 |
4882-5123-79004861-6868-3896 v.123
TABLE OF CONTENTS
Section 1. DEFINITIONS 1
1.01 Certain Defined Terms 1
1.02 Accounting Terms and Principles 3431
1.03 Interpretation 3432
1.04 Division 3633
Section 2. THE COMMITMENT AND THE LOANS 3633
2.01 Loans 3633
2.02 Borrowing Procedures 3633
2.03 Funding of Borrowings 3634
2.04 Notes 3734
2.05 Use of Proceeds 3734
Section 3. PAYMENTS OF PRINCIPAL AND INTEREST, ETC. 3734
3.01 Scheduled Repayments and Prepayments Generally; Application 3734
3.02 Interest 3735
3.03 Prepayments 3835
3.04 Commitment Termination 4037
3.05 Exit Fee 4037
Section 4. PAYMENTS, ETC. 4037
4.01 Payments 4037
4.02 Computations 4138
4.03 Set-Off 4138
Section 5. YIELD PROTECTION, TAXES, ETC. 4239
5.01 Additional Costs 4239
5.02 Illegality 4441
5.03 Taxes 4441
5.04 Mitigation Obligations 4845
5.05 Inability to Determine Rates 4845
5.06 Survival 5047
Section 6. CONDITIONS 5047
6.01 Conditions to Closing 5047
Section 7. REPRESENTATIONS AND WARRANTIES 5350
7.01 Power and Authority 5351
7.02 Authorization; Enforceability 5451
7.03 Governmental and Other Approvals; No Conflicts 5451
7.04 Financial Statements; Material Adverse Change 5451
7.05 Properties 5552
7.06 No Actions or Proceedings 5754
7.07 Compliance with Laws and Agreements 5855
7.08 Taxes 5856
7.09 Full Disclosure 5956
7.10 Investment Company Act and Margin Stock Regulation 5956
7.11 Solvency 5956
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7.12 Subsidiaries 5957
7.13 Indebtedness and Liens 5957
7.14 Material Agreements 6057
7.15 Restrictive Agreements 6057
7.16 Real Property 6057
7.17 Pension Matters 6057
7.18 Regulatory Approvals 6058
7.19 Transactions with Affiliates 6259
7.20 OFAC; Anti-Terrorism Laws 6259
7.21 Anti-Corruption 6260
7.22 Priority of Obligations 6360
7.23 Royalty and Other Payments 6360
7.24 Non-Competes 6360
7.25 Security Interest 6360
7.26 Data Privacy 6360
Section 8. AFFIRMATIVE COVENANTS 6361
8.01 Financial Statements and Other Information 6361
8.02 Notices of Material Events 6663
8.03 Existence 6865
8.04 Payment of Obligations 6865
8.05 Insurance 6865
8.06 Books and Records; Inspection Rights 6966
8.07 Compliance with Laws and Other Obligations 6966
8.08 Maintenance of Properties, Etc. 6967
8.09 Licenses 7067
8.10 Use of Proceeds 7067
8.11 Certain Obligations Respecting Subsidiaries; Further Assurances 7067
8.12 Termination of Non-Permitted Liens 7269
8.13 Board Materials 7270
8.14 [Reserved]Consummation of Financing Transactions 7370
8.15 Maintenance of Regulatory Approvals, Contracts, Intellectual Property, Etc. 7370
8.16 ERISA Compliance 7471
8.17 Cash Management 7471
8.18 Post-Closing Obligations. 7471
Section 9. NEGATIVE COVENANTS 7572
9.01 Indebtedness 7572
9.02 Liens 7774
9.03 Fundamental Changes and Acquisitions 7976
9.04 Lines of Business 8076
9.05 Investments 8076
9.06 Restricted Payments 8277
9.07 Payments of Indebtedness 8378
9.08 Change in Fiscal Year 8378
9.09 Sales of Assets, Etc. 8478
9.10 Transactions with Affiliates 8579
9.11 Restrictive Agreements 8680
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9.12 Modifications and Terminations of Material Agreements and Organic Documents 8681
9.13 Outbound Licenses 8781
9.14 Sales and Leasebacks 8781
9.15 Hazardous Material 8781
9.16 Accounting Changes 8782
9.17 Compliance with ERISA 8782
9.18 Sanctions; Anti-Corruption Use of Proceeds 8782
Section 10. FINANCIAL COVENANTS 8882
10.01 Minimum Liquidity 8882
Section 11. EVENTS OF DEFAULT 8883
11.01 Events of Default 8883
11.02 Remedies 9286
11.03 Additional Remedies 9287
11.04 [Reserved]. 9387
11.05 Payment of Prepayment Fee and Exit Fee 9387
Section 12. THE ADMINISTRATIVE AGENT 9488
12.01 Appointment and Duties 9488
12.02 Binding Effect 9590
12.03 Use of Discretion 9690
12.04 Delegation of Rights and Duties 9690
12.05 Reliance and Liability 9691
12.06 Administrative Agent Individually 9892
12.07 Lender Credit Decision 9892
12.08 Expenses; Indemnities 9893
12.09 Resignation of the Administrative Agent 9993
12.10 Release of Collateral or Guarantors 10094
12.11 Additional Secured Parties 10195
12.12 Agent May File Proofs of Claim 10195
12.13 Acknowledgements of Lenders 10296
Section 13. GUARANTY 10498
13.01 The Guaranty 10498
13.02 Obligations Unconditional 10599
13.03 Discharge Only Upon Payment in Full 107101
13.04 Additional Waivers; General Waivers 107101
13.05 Reinstatement 108102
13.06 Subrogation 109103
13.07 Remedies 109103
13.08 Instrument for the Payment of Money 109103
13.09 Continuing Guarantee 109104
13.10 Contribution with Respect to Guaranteed Obligations 109104
13.11 General Limitation on Guarantee Obligations 110104
Section 14. MISCELLANEOUS 111105
14.01 No Waiver 111105
14.02 Notices 111105
14.03 Expenses, Indemnification, Etc. 111105
14.04 Amendments, Etc. 113107
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14.05 Successors and Assigns 113107
14.06 Survival 116110
14.07 Captions 117111
14.08 Counterparts, Effectiveness 117111
14.09 Governing Law 117111
14.10 Jurisdiction, Service of Process and Venue 117111
14.11 Waiver of Jury Trial 118112
14.12 Waiver of Immunity 118112
14.13 Entire Agreement 118112
14.14 Severability 118112
14.15 No Fiduciary Relationship 118112
14.16 Confidentiality 118112
14.17 Interest Rate Limitation 119113
14.18 Judgment Currency 119113
14.19 USA PATRIOT Act 120114
14.20 Acknowledgement and Consent to Bail-In of Affected Financial Institutions 120114
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4882-5123-79004861-6868-3896 v.123
SCHEDULES AND EXHIBITS
Schedule 1 - Loans Schedule
Schedule 2 - Products
Schedule 7.05(b) - Certain Intellectual Property
Schedule 7.08 - Taxes
Schedule 7.12 - Information Regarding Subsidiaries
Schedule 7.13(a) - Existing Indebtedness
Schedule 7.13(b) - Existing Liens
Schedule 7.14 Material Agreements
Schedule 7.15 - Restrictive Agreements
Schedule 7.16 - Real Property Owned or Leased by Obligors
Schedule 7.17 - Pension Matters
Schedule 7.18(c) - Adverse Findings
Schedule 7.19 - Transactions with Affiliates
Schedule 7.23 - Royalties and Other Payments
Schedule 9.05 - Existing Investments
Schedule 9.09 - Sale of Assets
Exhibit A - Form of Note
Exhibit B - Form of Borrowing Notice
Exhibit C - Form of Guarantee Assumption Agreement
Exhibit D-1 - Form of U.S. Tax Compliance Certificate (For Foreign Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes)
Exhibit D-2 - Form of U.S. Tax Compliance Certificate (For Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes)
Exhibit D-3 - Form of U.S. Tax Compliance Certificate (For Foreign Participants That Are Partnerships For U.S. Federal Income Tax Purposes)
Exhibit D-4 - Form of U.S. Tax Compliance Certificate (For Foreign Lenders That Are Partnerships For U.S. Federal Income Tax Purposes)
Exhibit E - Form of Compliance Certificate
Exhibit F - Form of Assignment and Assumption
Exhibit G - Form of Landlord Consent
Exhibit H - [Reserved]
Exhibit I - Form of Intercompany Subordination Agreement
Exhibit J - [Reserved]
Exhibit K - Form of Solvency Certificate
Exhibit L - Form of Funding Date Certificate
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CREDIT AGREEMENT AND GUARANTY
CREDIT AGREEMENT AND GUARANTY, dated as of March 17, 2022, as amended August 21, 2023 (this “Agreement”), among IMPEL NEUROPHARMA,PHARMACEUTICALS INC., a Delaware corporation (the “Borrower”), certain Subsidiaries of the Borrower that may be required to provide Guarantees from time to time hereunder (each a “Guarantor” and collectively, the “Guarantors”), the lenders from time to time party hereto (each a “Lender” and collectively, the “Lenders”), and OAKTREE FUND ADMINISTRATION, LLC, as administrative agent for the Lenders (in such capacity, the “Administrative Agent”).
WITNESSETH:
WHEREAS, the Borrower has requested that the Lenders provide a first-lien term loan facility to the Borrower in an aggregate principal amount of $62,000,000, consisting of (a) a $50,000,000 Tranche A-1 Term Loan and (b) a $12,000,000 Tranche A-2 Term Loan to be extended on the ClosingApplicable Funding Date; and
WHEREAS, the Lenders are willing, on the terms and subject to the conditions set forth herein, to provide such senior secured term loan facility.
NOW, THEREFORE, the parties hereto agree as follows:
DEFINITIONS
“Account Control Agreement Completion Date” has the meaning set forth in Section 8.19(a).
“Acquisition” means any transaction, or any series of related transactions, by which any Person (for purposes of this definition, an “acquirer”) directly or indirectly, by means of amalgamation, merger, purchase of assets, purchase of Equity Interests, or otherwise, (i) acquires all or substantially all of the assets of any other Person, (ii) acquires an entire business line or unit or division of any other Person, (iii) with respect to any other Person that is managed or governed by a Board, acquires control of Equity Interests of such other Person representing more than fifty percent (50%) of the ordinary voting power (determined on a fully-diluted basis) for the election of directors of such Person’s Board, or (iv) acquires control of more than fifty percent (50%) of the Equity Interests in any other Person (determined on a fully-diluted basis) that is not managed by a Board.
“Administrative Agent” has the meaning set forth in the preamble hereto.
“Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.
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“Affiliate” means, with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified.
“Agreement” has the meaning set forth in the preamble hereto.
“Allocable Amount” has the meaning set forth in Section 13.10(b).
“ANDA” means (i) (x) an abbreviated new drug application (as defined in the FD&C Act) and (y) any similar application or functional equivalent relating to any new drug application applicable to or required by any non-U.S. Governmental Authority, and (ii) all supplements and amendments that may be filed with respect to any of the foregoing.
“Anti-Terrorism Laws” means any laws relating to terrorism or money laundering, including, without limitation, (i) the Money Laundering Control Act of 1986 (e.g., 18 U.S.C. §§ 1956 and 1957), (ii) the Bank Secrecy Act of 1970 (e.g., 31 U.S.C. §§ 5311 – 5330), as amended by the Patriot Act, (iii) the laws, regulations and Executive Orders administered by the United States Department of the Treasury’s Office of Foreign Assets Control (“OFAC”), (iv) the Comprehensive Iran Sanctions, Accountability, and Divestment Act of 2010 and implementing regulations by the United States Department of the Treasury, (v) any law prohibiting or directed against terrorist activities or the financing of terrorist activities (e.g., 18 U.S.C. §§ 2339A and 2339B), or (vi) any similar laws enacted in the United States, European Union or any other jurisdictions in which the parties to this agreement operate, and all other present and future legal requirements of any Governmental Authority governing, addressing, relating to, or attempting to eliminate, terrorist acts and acts of war.
“Applicable Rate” means a percentage equal to 8.75%; provided that if trailing twelve-month Net Sales of Trudhesa is at least $125,000,000 the Applicable Rate shall be a percentage equal to 8.00% starting the first full Interest Period after the Borrower delivers written certification to the Administrative Agent as to such Net Sales threshold being met with reasonable back-up evidence.
“Applicable Funding Date” shall mean (i) with respect to the Tranche A-1 Term Loan, the Closing Date and (ii) with respect to the Tranche A-2 Term Loan, the First Amendment Effective Date.
“Applicable Rate” means a percentage equal to 10.75%.
“Arm’s Length Transaction” means, with respect to any transaction, the terms of such transaction shall not be less favorable to the Borrower or any of its Subsidiaries than commercially reasonable terms that would be obtained in a transaction with a Person that is an unrelated third party.
“Asset Sale” has the meaning set forth in Section 9.09.
“Assignment and Assumption” means an assignment and assumption entered into by a Lender and an assignee of such Lender substantially in the form of Exhibit F, or such other form as agreed by the Administrative Agent.
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“Australian Subsidiary” means Impel NeuroPharma Australia PTY Ltd., a private company formed under the laws of the Commonwealth of Australia, and a wholly-owned subsidiary of Borrower.
“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.
“Bail-In Legislation” means, (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).
“Bankruptcy Code” means Title 11 of the United States Code entitled “Bankruptcy.”
“Beneficial Ownership Certification” means a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation.
“Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.
“Benefit Plan” means any employee benefit plan as defined in Section 3(3) of ERISA (whether governed by the laws of the United States or otherwise) to which any Obligor or Subsidiary thereof incurs or otherwise has any obligation or liability, contingent or otherwise.
“BLA” means (i) (x) a biologics license application (as defined in the FD&C Act) to introduce, or deliver for introduction, a biologic product, including vaccines into commerce in the U.S., or any successor application or procedure and (y) any similar application or functional equivalent relating to biologics licensing applicable to or required by any non-U.S. Governmental Authority, and (ii) all supplements and amendments that may be filed with respect to the foregoing.
“Board” means, with respect to any Person, the board of directors or equivalent management or oversight body of such Person or any committee thereof authorized to act on behalf of such board (or equivalent body).
“Borrower” has the meaning set forth in the preamble hereto.
“Borrower Party” has the meaning set forth in Section 14.03(b).
“Borrowing” means the borrowing of the Loans on the Closing Date.
“Borrowing Notice” means a written notice substantially in the form of Exhibit B.
“Business Day” means any day that is not a Saturday, Sunday or other day on which commercial banks are authorized or required by law to remain closed in New York City.
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“Capital Lease Obligations” means, as to any Person, the obligations of such Person to pay rent or other amounts under a lease of (or other agreement conveying the right to use) real and/or personal property, the amount of the liability in respect thereof that would at that time be required to be capitalized on a balance sheet in accordance with GAAP, subject to Section 1.02.
“Casualty Event” means the damage, destruction or condemnation, as the case may be, of property of the Borrower or any of its Subsidiaries in excess of $2,000,000.
“CFC” means a Subsidiary that is a “controlled foreign corporation” within the meaning of Section 957 of the Code.
“CFC Holding Company” means any Domestic Subsidiary that owns no material assets (directly or indirectly) other than Equity Interests and debt of one or more CFCs or Domestic Subsidiaries that are themselves CFC Holding Companies.
“Change of Control” means an event or series of events (i) as a result of which any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities Act, but excluding any of such person or its Subsidiaries, and any Person acting in its capacity as trustee, agent or other fiduciary or administrator of any such Plan) becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that a person or group shall be deemed to have “beneficial ownership” of all Equity Interests that such person or group has the right to acquire, whether such right is exercisable immediately or only after the passage of time (such right, an “option right”)), directly or indirectly, of thirty-five percent (35%) or more of the Equity Interests of the Borrower entitled to vote for members of the Board of the Borrower on a fully-diluted basis (and taking into account all such Equity Interests that such person or group has the right to acquire pursuant to any option right); or (ii) as a result of which, during any period of twelve (12) consecutive months, a majority of the members of the Board of the Borrower cease to be composed of individuals (x) who were members of such Board on the first day of such period, (y) who were elected, appointed or nominated to such Board, or whose election, appointment or nomination to such Board was approved by individuals referred to in clause (x) above constituting at the time of such election, appointment or nomination at least a majority of such Board or equivalent governing body or (z) who were elected, appointed or nominated to such Board, or whose election, appointment or nomination to such Board was approved by individuals referred to in clauses (x) and (y) above constituting at the time of such election, appointment or nomination at least a majority of such Board; (iii) that results in the sale of all or substantially all of the assets or businesses of the Borrower and its Subsidiaries, taken as a whole; or (iv) except to the extent permitted by this Agreement, that results in the Borrower’s failure to own, directly or indirectly, beneficially and of record, one-hundred percent (100%) of all issued and outstanding Equity Interests of each Subsidiary Guarantor.
“Claims” means (and includes) any claim, demand, complaint, grievance, action, application, suit, cause of action, order, charge, indictment, prosecution, judgement or other similar process duly asserted and of which the required notice has been given in accordance with Law, whether in respect of assessments or reassessments, debts, liabilities, expenses, costs, damages or losses, contingent or otherwise, whether liquidated or unliquidated, matured or unmatured, disputed or undisputed, contractual, legal or equitable, including loss of value, professional fees,
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including fees and disbursements of legal counsel, and all costs incurred in investigating or pursuing any of the foregoing or any proceeding relating to any of the foregoing.
“Closing Date” means the date on which the conditions precedent specified in Section 6.01 are satisfied (or waived in accordance with Section 14.04) and on which the Loans are to be made to the Borrower.
“Closing Date Payoff” means the repayment in full and termination of the Refinanced Facility and the release and termination of all Liens and Guarantees thereunder.
“CME” means CME Group Benchmark Administration Limited.
“Code” means the Internal Revenue Code of 1986, as amended from time to time, and the rules and regulations promulgated thereunder from time to time.
“Collateral” means any real, personal and mixed property (including Equity Interests), whether tangible or intangible, in which Liens are granted or purported to be granted to the Administrative Agent as security for the Obligations under any Loan Document on or after the Closing Date, including future acquired, developed or created assets or property (or collectively, all such real, personal and mixed property, as the context may require); provided, “Collateral” shall not include Equity Interests of any Subsidiary representing, in the aggregate, more than sixty-five percent (65%) of the Equity Interests of any CFC or CFC Holding Company.
“Commercialization” means any and all activities with respect to the manufacture, distribution, marketing, detailing, promotion, selling and securing of reimbursement and any other exploitation or commercialization of Trudhesa in the United States after Regulatory Approval for Trudhesa has been obtained, which shall include, as applicable, seeking and negotiating pricing and reimbursement approvals for Trudhesa in the United States, post-marketing approval studies, post-launch marketing, promoting, detailing, marketing research, distributing, customer service, selling Trudhesa, importing, exporting or transporting Trudhesa for sale, and regulatory compliance with respect to the foregoing. When used as a verb, “Commercialize” means to engage in Commercialization.
“Commitment” means, with respect to each Lender, the obligation of such Lender to make Loans to the Borrower on the Closing Date in accordance with the terms and conditions of this Agreement, which commitment is in the amount set forth opposite such Lender’s name on Schedule 1 under the caption “Commitment”, as such Schedule may be amended from time to time pursuant to an Assignment and Assumption or otherwise. The aggregate amount of Commitments on the date of this Agreement equals $50,000,000.such Lender’s Tranche A-1 Commitment or Tranche A-2 Commitment, as the context may require.
“Company Competitor” means (i) any competitor of the Borrower or any of its Subsidiaries primarily operating in the same line of business as the Borrower or any of its Subsidiaries and (ii) any of such competitor’s Affiliates (other than any Person that is a bona fide debt fund primarily engaged in the making, purchasing, holding or other investing in commercial loans, notes, bonds or similar extensions of credit or securities in the Ordinary Course) that are either (x) clearly identifiable as an Affiliate of any such competitor on the basis of such Person’s name or (y) identified by name in writing by the Borrower to the Administrative Agent from time to time.
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“Compliance Certificate” has the meaning set forth in Section 8.01(c).
“Conforming Changes” means, with respect to the use, administration of or any conventions associated with Term SOFR or any proposed Successor Rate, as applicable, any conforming changes to the definitions of “Term SOFR” and “Interest Period”, timing and frequency of determining rates and making payments of interest and other technical, administrative or operational matters (including, for the avoidance of doubt, the definitions of “Business Day” and “U.S. Government Securities Business Day”, timing of borrowing requests or prepayment, conversion or continuation notices and length of lookback periods) as may be appropriate, in the discretion of the Administrative Agent (in consultation with the Borrower), to reflect the adoption and implementation of such applicable rate(s) and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent determines that adoption of any portion of such market practice is not administratively feasible or that no market practice for the administration of such rate exists, in such other manner of administration as the Administrative Agent determines (in consultation with the Borrower) is reasonably necessary in connection with the administration of this Agreement and any other Loan Document).
“Connection Income Taxes” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.
“Contracts” means any contract, license, lease, agreement, obligation, promise, undertaking, understanding, arrangement, document, commitment, entitlement or engagement under which a Person has, or will have, any liability or contingent liability (in each case, whether written or oral, express or implied, and whether in respect of monetary or payment obligations, performance obligations or otherwise).
“Control” means, in respect of a particular Person, the possession by one or more other Persons, directly or indirectly, of the power to direct or cause the direction of the management or policies of such particular Person, whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have meanings correlative thereto.
“Controlled Account” has the meaning set forth in Section 8.17(a).
“Copyright” means published and unpublished works of authorship whether or not copyrightable, including (i) software, including all source code, object code, firmware, development tools, files, records and data, and all media on which any of the foregoing is recorded; (ii) databases, data compilations, data collections, and data, including in personally identifiable information and clinical trial data and all aggregated data, rights in databases, data compilations, data collections, and data, including in personally identifiable information and clinical trial data and all aggregated data, development tools, diagrams, formulae, methods, network configurations and architectures, processes, specifications, works of authorship and other forms of technology (whether or not embodied in any tangible form and including all tangible embodiments of the foregoing, such as instruction manuals, laboratory notebooks, prototypes, samples, studies and summaries); (iii) website and mobile content; and (iv) other compilations of information, in each case, whether or not registered, and any and all copyrights in and to the foregoing, together with
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all common law rights and moral rights therein, and all copyrights, copyright registrations and applications for copyright registrations, including all renewals, extensions, restorations, derivative works and reversions thereof and all common law rights, moral rights and other rights whatsoever accruing thereunder or pertaining thereto throughout the world.
“Credit Spread Adjustment” means 0.1500% per annum.
“Daily Simple SOFR” means with respect to any applicable determination date means the SOFR published on such date on the Federal Reserve Bank of New York’s website (or any successor source).
“Default” means any Event of Default and any event that, upon the giving of notice, the lapse of time or both, would constitute an Event of Default.
“Default Rate” has the meaning set forth in Section 3.02(b).
“Deferred Acquisition Consideration” means any purchase price adjustments, royalty, earn-out, milestone payments, contingent or other deferred payment payments of a similar nature (including any non-compete payments and consulting payments) made in connection with any Permitted Acquisition or other acquisition or investment permitted under this Agreement.
“Designated Jurisdiction” means any country or territory to the extent that such country or territory is the subject of country- or territory-wide Sanctions.
“Development” means, with respect to Trudhesa, any internal or external research or development activities, and any internal or external regulatory activities related to obtaining and maintaining Regulatory Approval for Trudhesa, including development of data or information for the purpose of submission to a Regulatory Authority to obtain authorization to conduct clinical trials and conduct of clinical trials and preparation and submission of data from such trials to obtain, support, or maintain Regulatory Approval of Trudhesa and including activities directed toward the clinical manufacture and manufacturing process development for Trudhesa. “Develop,” “Developing,” and “Developed” will be construed accordingly.
“Disqualified Equity Interests” means, with respect to any Person, any Equity Interest of such Person that, by its terms (or by the terms of any security or other Equity Interest into which it is convertible or for which it is exchangeable), or upon the happening of any event or condition (i) matures or is mandatorily redeemable or requires such Person to use efforts to redeem such Equity Interests (in each case, other than solely for Qualified Equity Interests and cash in lieu of fractional shares), including pursuant to a sinking fund obligation or otherwise, (ii) is redeemable at the option of the holder thereof (other than solely for Qualified Equity Interests and cash in lieu of fractional shares), in whole or in part, (iii) provides for the scheduled payments of dividends or other distributions in cash (other than the payment of cash in lieu of fractional shares) or other securities that would constitute Disqualified Equity Interests, or (iv) is or becomes convertible into or exchangeable for Indebtedness or any other Equity Interests that would constitute Disqualified Equity Interests, in each case, prior to the date that is ninety-one (91) days after the Maturity Date.
“Division” has the meaning set forth in Section 1.04.
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“Dollars” and “$” means lawful money of the United States of America.
“Domestic Subsidiary” means any Subsidiary that is a corporation, limited liability company, partnership or similar business entity incorporated, formed or organized under the laws of the United States, any state of the United States or the District of Columbia.
“EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clause (a) or (b) of this definition and is subject to consolidated supervision with its parent.
“EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“EEA Resolution Authority” means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
“Eligible Transferee” means and includes (i) any commercial bank, (ii) any insurance company, (iii) any finance company, (iv) any financial institution, (v) any Person that is a bona fide debt fund primarily engaged in the making, purchasing, holding or other investing in commercial loans, notes, bonds or similar extensions of credit or securities in the Ordinary Course, (vi) with respect to any Lender, any of its Affiliates or such Lender’s or Affiliate’s managed funds or accounts, and (vii) any other “accredited investor” (as defined in Regulation D of the Securities Act) that is principally in the business of managing investments or holding assets for investment purposes; provided that, an Eligible Transferee shall not include (x) any Company Competitor, or (y) any Person that primarily invests in distressed debt or other distressed financial assets.
“Environmental Claim” means any investigation, notice, notice of violation, claim, action, suit, proceeding, demand, information request, abatement order or other order or directive (conditional or otherwise), by any Governmental Authority or any other Person, arising (i) pursuant to or in connection with any actual or alleged violation of, or liability relating to, any Environmental Law; (ii) in connection with any Hazardous Material or any actual or alleged Hazardous Materials Activity; or (iii) in connection with any actual or alleged damage, injury, threat or harm to health, safety, natural resources or the environment, arising out of a violation of Environmental Law or any Hazardous Materials Activity.
“Environmental Law” means all laws (including common law and any federal, state, provincial or local governmental law), rule, regulation, order, writ, judgment, notice, requirement, binding agreement, injunction or decree, whether U.S. or non-U.S., relating in any way to (i) environmental matters, including those relating to any Hazardous Materials Activity; (ii) the generation, use, storage, transportation or disposal of Hazardous Materials; or (iii) to the extent related to Hazardous Materials Activity, occupational safety and health, industrial hygiene, land use, natural resources or the protection of human, plant or animal health or welfare, in any manner applicable to the Borrower or any of its Subsidiaries or any Facility.
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“Environmental Liability” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), of any Obligor or any of its Subsidiaries directly or indirectly resulting from or based upon (i) violation of any Environmental Law, (ii) the generation, use, presence, emission, discharge, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (iii) exposure to any Hazardous Materials, (iv) the release or threatened release of any Hazardous Materials into the environment or (v) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.
“Equity Interests” means, with respect to any Person (for purposes of this defined term, an “issuer”), all shares of, interests or participations in, or other equivalents in respect of such issuer’s capital stock, including all membership interests, partnership interests or equivalent, , whether now outstanding or issued after the Closing Date, and in each case, however designated and whether voting or non-voting. Notwithstanding the foregoing, in no event shall any Indebtedness convertible or exchangeable into Equity Interests constitute “Equity Interests” hereunder.
“Equivalent Amount” means, with respect to an amount denominated in one currency, the amount in another currency that could be purchased by the amount in the first currency determined by reference to the Exchange Rate at the time of determination.
“ERISA” means the United States Employee Retirement Income Security Act of 1974, as amended.
“ERISA Affiliate” means, collectively, any Obligor, Subsidiary thereof, and any Person under common control, or treated as a single employer, with any Obligor or Subsidiary thereof, within the meaning of Section 414(b), (c), (m) or (o) of the Code.
“ERISA Event” means (i) a reportable event as defined in Section 4043 of ERISA with respect to a Title IV Plan, excluding, however, such events as to which the PBGC by regulation has waived the requirement of Section 4043(a) of ERISA that it be notified within thirty (30) days of the occurrence of such event; (ii) the applicability of the requirements of Section 4043(b) of ERISA with respect to a contributing sponsor, as defined in Section 4001(a)(13) of ERISA, to any Title IV Plan where an event described in paragraph (9), (10), (11), (12) or (13) of Section 4043(c) of ERISA is reasonably expected to occur with respect to such plan within the following thirty (30) days; (iii) a withdrawal by any Obligor or any ERISA Affiliate thereof from a Title IV Plan or the termination of any Title IV Plan resulting in liability under Sections 4063 or 4064 of ERISA; (iv) the withdrawal of any Obligor or any ERISA Affiliate thereof in a complete or partial withdrawal (within the meaning of Sections 4203 and 4205 of ERISA) from any Multiemployer Plan if there is any potential liability therefore, or the receipt by any Obligor or any ERISA Affiliate thereof of notice from any Multiemployer Plan that it is insolvent pursuant to Section 4245 of ERISA; (v) the filing of a notice of intent to terminate, the treatment of a plan amendment as a termination under Section 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a Title IV Plan or Multiemployer Plan; (vi) the imposition of liability on any Obligor or any ERISA Affiliate thereof pursuant to Section 4062(e) or 4069 of ERISA or by reason of the application of Section 4212(c) of ERISA; (vii) the failure by any Obligor or any ERISA Affiliate thereof to make any required contribution to a Plan, or the failure to meet the minimum funding standard of Section 412 of the Code with respect to any Title IV Plan (whether
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or not waived in accordance with Section 412(c) of the Code) or the failure to make by its due date a required installment under Section 430 of the Code with respect to any Title IV Plan or the failure to make any required contribution to a Multiemployer Plan; (viii) the determination that any Title IV Plan is considered an at-risk plan or a plan in endangered to critical status within the meaning of Sections 430, 431 and 432 of the Code or Sections 303, 304 and 305 of ERISA; (ix) an event or condition which might reasonably be expected to constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Title IV Plan or Multiemployer Plan; (x) the imposition of any liability under Title I or Title IV of ERISA, other than PBGC premiums due but not delinquent under Section 4007 of ERISA, upon any Obligor or any ERISA Affiliate thereof; (xi) an application for a funding waiver under Section 303 of ERISA or an extension of any amortization period pursuant to Section 412 of the Code with respect to any Title IV Plan; (xii) the occurrence of a non-exempt prohibited transaction under Section 406 or 407 of ERISA for which any Obligor or any Subsidiary thereof may be directly or indirectly liable; (xiii) a violation of the applicable requirements of Section 404 or 405 of ERISA or the exclusive benefit rule under Section 401(a) of the Code by any fiduciary or disqualified person for which any Obligor or any ERISA Affiliate thereof may be directly or indirectly liable; (xiv) the occurrence of an act or omission which could give rise to the imposition on any Obligor or any ERISA Affiliate thereof of fines, penalties, taxes or related charges under Chapter 43 of the Code or under Sections 409, 502(c), (i) or (1) or 4071 of ERISA; (xv) the assertion of a material claim (other than routine claims for benefits) against any Plan or the assets thereof, or against any Obligor or any Subsidiary thereof in connection with any such plan; (xvi) receipt from the IRS of notice of the failure of any Qualified Plan to qualify under Section 401(a) of the Code, or the failure of any trust forming part of any Qualified Plan to fail to qualify for exemption from taxation under Section 501(a) of the Code; (xvii) the imposition of any lien (or the fulfillment of the conditions for the imposition of any lien) on any of the rights, properties or assets of any Obligor or any ERISA Affiliate thereof, in either case pursuant to Title I or IV, including Section 302(f) or 303(k) of ERISA or to Section 401(a)(29) or 430(k) of the Code; or (xviii) the establishment or amendment by any Obligor or any Subsidiary thereof of any “welfare plan”, as such term is defined in Section 3(1) of ERISA, that provides post-employment welfare benefits in a manner that would increase the liability of any Obligor.
“ERISA Funding Rules” means the rules regarding minimum required contributions (including any installment payment thereof) to Title IV Plans, as set forth in Sections 412, 430, 431, 432 and 436 of the Code and Sections 302, 303, 304 and 305 of ERISA.
“Erroneous Payment” has the meaning set forth in Section 12.13(a).
“Erroneous Payment Deficiency Assignment” has the meaning set forth in Section 12.13(d).
“Erroneous Payment Impacted Loans” has the meaning set forth in Section 12.13(d).
“Erroneous Payment Return Deficiency” has the meaning set forth in Section 12.13(d).
“EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor Person), as in effect from time to time.
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“Event of Default” has the meaning set forth in Section 11.01.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Exchange Rate” means, as of any date, the rate at which any currency may be exchanged into another currency, as set forth on the relevant Reuters screen at or about 11:00 a.m. (Eastern time) on such date. In the event that such rate does not appear on the Reuters screen, the “Exchange Rate” shall be determined by reference to such other publicly available service for displaying exchange rates as may be reasonably designated by the Administrative Agent.
“Exchanged RIFA Obligations” shall have the meaning attributable to such term in the First Amendment.
“Excluded Accounts” means (i) deposit accounts exclusively used for payroll, payroll Taxes and other employee wage and benefit payments to or for the benefit of any Obligor’s employees, (ii) zero balance accounts that are swept no less frequently than weekly to a Controlled Account, (iii) accounts (including trust accounts) used exclusively for bona fide escrow purposes, insurance or fiduciary purposes, (iv) cash collateral for Permitted Liens to the extent permitted pursuant to Section 9.02(e), (k) and (r) , any other deposit accounts established after the Closing Date only for so long as the amounts of deposit therein do not exceed $500,000 in the aggregate in the Ordinary Course, and (vii) the account maintained by Australian Subsidiary with Westpac Bank as identified in the Information Certificate, so long as the balance in such account does not exceed $500,000 at any time.
“Excluded Taxes” means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient: (i) Taxes imposed on or measured by net income (however denominated), franchise Taxes and branch profits Taxes, in each case, (x) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivisions thereof) or (y) that are Other Connection Taxes, (ii) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (1) such Lender acquires such interest in the Loan or Commitment or (2) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 5.03, amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its lending office, (iii) Taxes attributable to such Recipient’s failure to comply with Section 5.03(f), and (iv) any U.S. federal withholding Taxes imposed under FATCA.
“Exit Fee” has the meaning set forth in Section 3.05.
“Facility” means any real property (including all buildings, fixtures or other improvements located thereon) now, hereafter or heretofore owned, leased or operated by any Obligor or any of its Subsidiaries.
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“FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code and any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement, treaty or convention among Governmental Authorities and implementing such Sections of the Code.
“FD&C Act” means the U.S. Food, Drug and Cosmetic Act of 1938, 21 U.S.C. §§ 301 et seq. (or any successor thereto), as amended from time to time, and the rules, regulations, guidelines, guidance documents and compliance policy guides issued or promulgated thereunder.
“FDA” means the U.S. Food and Drug Administration and any successor entity.
“Federal Funds Effective Rate” means, for any day, the rate calculated by the Federal Reserve Bank of New York based on such day’s federal funds transactions by depositary institutions (as determined in such manner as the Federal Reserve Bank of New York shall set forth on its public website from time to time) and published on the next succeeding Business Day by the Federal Reserve Bank of New York as the federal funds effective rate; provided that if the Federal Funds Effective Rate as so determined would be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement.
“Fee Letter” means the Fee Letter with respect to the Tranche A-1 Loans, dated as of the date of this Agreement, among the Borrower, the Lenders and the Administrative Agent.
“First Amendment” means the First Amendment to this Agreement, dated as of August 21, 2023.
“First Amendment Effective Date” has the meaning set forth in the First Amendment.
“Foreign Lender” means a Lender that is not a U.S. Person.
“Funding Date Certificate” means a certificate substantially in the form of Exhibit L.
“GAAP” means generally accepted accounting principles in the United States of America, as in effect from time to time, set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants, in the statements and pronouncements of the Financial Accounting Standards Board and in such other statements by such other entity as may be in general use by significant segments of the accounting profession that are applicable to the circumstances as of the date of determination. All references to “GAAP” shall be to GAAP applied consistently with the principles used in the preparation of the financial statements delivered pursuant to Section 6.01(f)(i).
“Governmental Approval” means any consent, authorization, approval, order, license, franchise, permit, certification, accreditation, registration, clearance or exemption that is issued or granted by or from (or pursuant to any act of) any Governmental Authority, including any application or submission related to any of the foregoing.
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“Governmental Authority” means any nation, government, branch of power (whether executive, legislative or judicial), state, province or municipality or other political subdivision thereof and any entity exercising executive, legislative, judicial, monetary, regulatory or administrative functions of or pertaining to government, including without limitation regulatory authorities, governmental departments, agencies, commissions, bureaus, officials, ministers, courts, bodies, boards, tribunals and dispute settlement panels, and other law-, rule- or regulation-making organizations or entities of any state, territory, county, city or other political subdivision of any country, in each case whether U.S. or non-U.S.
“Guarantee” of or by any Person (the “guarantor”) means any obligation, contingent or otherwise, of the guarantor guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of the guarantor, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation or to purchase (or to advance or supply funds for the purchase of) any security for the payment thereof, (ii) to purchase or lease property, securities or services for the purpose of assuring the owner of such Indebtedness or other obligation of the payment thereof, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation or (iv) as an account party in respect of any letter of credit or letter of guaranty issued to support such Indebtedness or other obligation; provided, that the term Guarantee shall not include endorsements for collection or deposit in the Ordinary Course.
“Guarantee Assumption Agreement” means a Guarantee Assumption Agreement substantially in the form of Exhibit C by an entity that, pursuant to Section 8.11(a), is required to become a “Subsidiary Guarantor.”
“Guaranteed Obligations” has the meaning set forth in Section 13.01.
“Guarantor Payment” has the meaning set forth in Section 13.10(a).
“Guaranty” means the Guaranty made by the Subsidiary Guarantors under Section 13 in favor of the Secured Parties (including any Guaranty assumed by an entity that is required to become a “Subsidiary Guarantor” pursuant to a Guarantee Assumption Agreement).
“Hazardous Material” means any chemical, material or substance, exposure to which is prohibited, limited or regulated by any Governmental Authority or which may or could reasonably be expected to pose a hazard to the health and safety of the owners, occupants or any Persons in the vicinity of any Facility or to the indoor or outdoor environment.
“Hazardous Materials Activity” means any past, current, proposed or threatened activity, event or occurrence involving any Hazardous Materials, including the use, manufacture, possession, storage, holding, presence, existence, location, release, threatened release, discharge, placement, generation, transportation, processing, construction, treatment, abatement, removal, remediation, disposal, recycling, disposition or handling of any Hazardous Materials, and any investigation, monitoring, corrective action or response action with respect to any of the foregoing.
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“Healthcare Laws” means, collectively, all Laws and Product Authorizations applicable to the business, any Product or the Product Commercialization and Development Activities of any Obligor, whether U.S. or non-U.S., regulating the distribution, dispensing, importation, exportation, quality, manufacturing, labeling, promotion and provision of and payment for drugs, medical or healthcare products, items and services, including, without limitation, 45 C.F.R. et seq. (“HIPAA”); Section 1128B(b) of the Social Security Act, as amended; 42 U.S.C. § 1320a-7b (Criminal Penalties Involving Medicare or State Health Care Programs), commonly referred to as the “Federal Anti-Kickback Statute”; § 1877 of the Social Security Act, as amended; 42 U.S.C. § 1395nn (Limitation on Certain Physician Referrals), commonly referred to as “Stark Statute”; the FD&C Act; all applicable Good Manufacturing Practice requirements addressed in the FDA’s Quality System Regulation (21 C.F.R. Part 820); all rules, regulations and guidance with respect to the provision of Medicare and Medicaid programs or services (42 C.F.R. Chapter IV et seq.); 10 U.S.C. §§1071 – 1110(b); 5 U.S.C. §§ 8901 – 8914; the PDMA; and all rules, regulations and guidance promulgated under or pursuant to any of the foregoing, including any non-U.S. equivalents.
“Hedging Agreement” means any interest rate exchange agreement, foreign currency exchange agreement, commodity price protection agreement or other interest or currency exchange rate or commodity price hedging arrangement. Notwithstanding anything to the contrary in the foregoing, neither any Permitted Bond Hedge Transaction nor any Permitted Warrant Transaction shall be a Hedging Agreement.
“HIPAA” has the meaning set forth in “Healthcare Laws”.
“Immaterial Subsidiary” means any Subsidiary of the Borrower that (i) individually constitutes or holds less than five percent (5%) of the Borrower’s consolidated total assets and generates less than five percent (5%) of the Borrower’s consolidated total revenue, and (ii) when taken together with all then existing Immaterial Subsidiaries, such Subsidiary and such Immaterial Subsidiaries, in the aggregate, would constitute or hold less than five percent (5%) of the Borrower’s consolidated total assets and generate less than five percent (5%) of the Borrower’s consolidated total revenue, in each case as pursuant to the most recent fiscal period for which financial statements were required to have been delivered pursuant to Section 8.01(a) or (b). If at any time the aggregate amount of the Borrower’s consolidated total assets or consolidated total revenue attributable to Immaterial Subsidiaries exceeds five percent (5%) of the Borrower’s consolidated total assets or consolidated total revenue, the Borrower shall promptly (and in any event within forty five (45) days of becoming aware of such excess) designate sufficient Subsidiaries as ceasing to constitute “Immaterial Subsidiaries” to eliminate such excess, and such designated Subsidiaries shall be required to become Guarantors in accordance with Section 8.11(a). If at any time any Subsidiary designated as an Immaterial Subsidiary individually constitutes or holds five percent (5%) or more of the Borrower’s consolidated total assets or generates five percent (5%) or more of the Borrower’s consolidated total revenue, such Subsidiary shall cease to constitute an Immaterial Subsidiary and the Borrower shall promptly (and in any event within forty five (45) days of becoming aware thereof) cause such Subsidiary to become a Guarantor in accordance with Section 8.11(a).
“IND” means (i) (x) an investigational new drug application (as defined in the FD&C Act) that is required to be filed with the FDA before beginning clinical testing in human subjects, or
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any successor application or procedure and (y) any similar application or functional equivalent relating to any investigational new drug application applicable to or required by any non-U.S. Governmental Authority, and (ii) all supplements and amendments that may be filed with respect to the foregoing.
“Indebtedness” of any Person means, without duplication, (i) all obligations of such Person for borrowed money, (ii) all obligations of such Person evidenced by bonds, debentures, notes, loan agreements or similar instruments, (iii) all obligations of such Person upon which interest charges are customarily paid (excluding interest penalties for late payments under commercial contracts entered into in the Ordinary Course and, for the avoidance of doubt, which commercial contracts do not relate to obligations for borrowed money or purchase money indebtedness), (iv) all obligations of such Person under conditional sale or other title retention agreements relating to property acquired by such Person, (v) all obligations of such Person in respect of the deferred purchase price of property or services (excluding deferred compensation and accounts payable incurred in the ordinary course of business and not overdue by more than ninety (90) days or otherwise being disputed in good faith), (vi) all Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on property owned or acquired by such Person, whether or not the Indebtedness secured thereby has been assumed, (vii) all Guarantees by such Person of Indebtedness of others, (viii) all Capital Lease Obligations of such Person, (ix) all obligations, contingent or otherwise, of such Person as an account party in respect of letters of credit and letters of guaranty, (x) obligations under any Hedging Agreement, currency swaps, forwards, futures or derivatives transactions, (xi) all obligations, contingent or otherwise, of such Person in respect of bankers’ acceptances, (xii) all obligations under any earn-out and guaranteed minimum milestone and other payments of such Person under any license or other agreements (but excluding any payments based on sales under any such license or other agreement), (xiii) any Disqualified Equity Interests of such Person, (xiv) any off-balance sheet liability and (xiv) all other obligations required to be classified as indebtedness of such Person under GAAP; provided that, notwithstanding the foregoing, Indebtedness shall not include accrued expenses, deferred rent, deferred taxes, deferred compensation or customary obligations under employment agreements, in each case, that are not overdue by more than forty-ninetyninety (90) days. The Indebtedness of any Person shall include the Indebtedness of any other entity (including any partnership in which such Person is a general partner) to the extent such Person is liable therefor as a result of such Person’s ownership interest in or other relationship with such entity, except to the extent the terms of such Indebtedness provide that such Person is not liable therefor.
“Indemnified Party” has the meaning set forth in Section 14.03(b).
“Indemnified Taxes” means (i) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any Obligation and (ii) to the extent not otherwise described in clause (i), Other Taxes.
“Information Certificate” means the Information Certificate delivered pursuant to Section 6.01(c).
“INP 105” means the pharmaceutical product that is being Developed by the Borrower, its Affiliates or its licensees comprising an upper nasal formulation of olanzapine administered using
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Borrower’s precision olfactory delivery technology for the treatment of agitation and aggression associated with autism spectrum disorder.
“INP 107” means the pharmaceutical product that is being Developed by the Borrower, its Affiliates or its licensees comprising an upper nasal formulation of carbidopa/levodopa administered using Borrower’s precision olfactory delivery technology for the treatment of OFF episodes in Parkinson’s Disease.
“Insolvency Proceeding” means (i) any case, action or proceeding before any court or other Governmental Authority relating to bankruptcy, reorganization, insolvency, liquidation, receivership, dissolution, winding-up or relief of debtors, or (ii) any general assignment for the benefit of creditors, composition, marshaling of assets for creditors, or other, similar arrangement in respect of any Person’s creditors generally or any substantial portion of such Person’s creditors, in each case undertaken under U.S. federal, state or foreign law, including the Bankruptcy Code.
“Intellectual Property” means all intellectual property or proprietary rights of any kind anywhere in the world, including any rights in or to Patents, Trademarks, Copyrights, and Trade Secrets.
“Intercompany Subordination Agreement” means a subordination agreement to be executed and delivered by each Obligor and each of its Subsidiaries, pursuant to which all obligations in respect of any Indebtedness owing to any such Person by an Obligor shall be subordinated to the prior payment in full in cash of all Obligations, such agreement to be in substantially the form attached hereto as Exhibit I.
“Interest Period” means (a) the period commencing on and including the Closing Date and ending on but excluding the immediately subsequent Payment Date and (b) subsequently, each period commencing on and excluding the last day of the previous Interest Period for such Loan and ending on but excluding the immediately subsequent Payment Date; provided however if such period shall end on a day that is not a Business Day, it shall be deemed to end on the next succeeding Business Day.
“Interest Rate” means Term SOFR plus the Applicable Rate, as may be increased pursuant to Section 3.02(b) or modified pursuant to Section 5.05.
“Invention” means any novel, inventive or useful art, apparatus, method, process, machine (including any article or device), manufacture or composition of matter, or any novel, inventive and useful improvement in any art, apparatus, method, process, machine (including article or device), manufacture or composition of matter.
“Investment” means, for any Person: (i) the acquisition (whether for cash, property, services or securities or otherwise) of any debt or Equity Interests, bonds, notes, debentures, partnership or other ownership interests or other securities of any other Person or any agreement to make any such acquisition (including any “short sale” or any sale of any securities at a time when such securities are not owned by the Person entering into such sale); (ii) the making of any deposit with, or advance, loan, assumption of debt or other extension of credit to, or capital contribution in any other Person (including the purchase of property from another Person subject to an understanding or agreement, contingent or otherwise, to resell such property to such Person),
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but excluding any such advance, loan or extension of credit having a term not exceeding ninety (90) days arising in connection with the sale of inventory or supplies by such Person in the Ordinary Course; or (iii) the entering into of any Guarantee of, or other contingent obligation with respect to, Indebtedness or other liability of any other Person and (without duplication) any amount committed to be advanced, lent or extended to such Person. The amount of an Investment shall be the amount actually invested (which, in the case of any Investment constituting the contribution of an asset or property, shall be based on such Person’s good faith estimate of the fair market value of such asset or property at the time such Investment is made), less the amount of cash received or returned for such Investment, without adjustment for subsequent increases or decreases in the value of such Investment or write-ups, write-downs or write-offs with respect thereto; provided that in no event shall such amount be less than zero or increase any basket or amount pursuant to Section 9.05 above the fixed amount set forth therein. Notwithstanding anything to the contrary in the foregoing, the purchase of any Permitted Bond Hedge Transaction by the Borrower or any of its Subsidiaries and the performance of its obligations thereunder shall not be an Investment.
“IRS” means the U.S. Internal Revenue Service or any successor agency, and to the extent relevant, the U.S. Department of the Treasury.
“Landlord Consent” means a Landlord Consent substantially in the form of Exhibit G.
“Law” means, collectively, all U.S. or non-U.S. federal, state, provincial, territorial, municipal or local statute, treaty, rule, guideline, regulation, ordinance, code or administrative or judicial precedent or authority, including any interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case whether or not having the force of law.
“Lenders” has the meaning set forth in the preamble hereto.
“License Agreement” means any existing or future license, commercialization, co-promotion, collaboration, distribution, marketing or partnering Contract entered into before or during the term of this Agreement by the Borrower or any of its Affiliates that grants a license to a Third Party any Intellectual Property that (i) is owned or purported to be owned by the Borrower or any of its Subsidiaries and (ii) claims or covers Trudhesa or any Product Commercialization and Development Activities with respect to Trudhesa.
“Licensees” means, collectively, the licensees and any sublicensees under each License Agreement; each a “Licensee.”
“Lien” means (a) any mortgage, lien, license, pledge, hypothecation, charge, security interest, or other encumbrance of any kind or character whatsoever, whether or not filed, recorded or otherwise perfected under applicable Law, or any lease, title retention agreement, mortgage, restriction, easement, right-of-way, option or adverse claim (of ownership or possession) (including any conditional sale or other title retention agreement, any lease in the nature thereof, and any other encumbrance on title to real property, any option or other agreement to sell, or give a security interest in, such asset and any filing of or agreement to give any financing statement
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under the Uniform Commercial Code (or equivalent statutes of any jurisdiction)) or any preferential arrangement that has the practical effect of creating a security interest and (b) in the case of Equity Interests, any purchase option, call or similar right of a third party with respect to such Equity Interests.
“Loan” means each loan advanced by a Lender pursuant to Section 2.01, including the Tranche A-1 Term Loans and Tranche A-2 Term Loans.
“Loan Documents” means, collectively, this Agreement, the Notes, the Security Documents, the Fee Letter, any Guarantee Assumption Agreement, the Intercompany Subordination Agreement and any subordination agreement, intercreditor agreement (including the Permitted Intercreditor Agreement) or other present or future document, instrument, agreement or certificate delivered to the Administrative Agent (for itself or for the benefit of any other Secured Party) in connection with this Agreement or any of the other Loan Documents, in each case, as amended or otherwise modified.
“Loss” means judgments, debts, liabilities, expenses, costs, damages or losses, contingent or otherwise, whether liquidated or unliquidated, matured or unmatured, disputed or undisputed, contractual, legal or equitable, including loss of value, professional fees, including fees and disbursements of legal counsel on a full indemnity basis, and all costs incurred in investigating or pursuing any Claim or any proceeding relating to any Claim.
“Majority Lenders” means, at any time, Lenders having at such time in excess of fifty percent (50%) of the aggregate Commitments then in effect and Loans outstanding at such time.
“Margin Stock” means “margin stock” within the meaning of Regulations U and X.
“Material Adverse Change” and “Material Adverse Effect” mean a material adverse change in or effect on (i) the business, financial performance, operations, financial condition, the assets or liabilities of the Borrower and its Subsidiaries taken as a whole, (ii) the ability of the Obligors, taken as a whole, to perform their obligations under the Loan Documents, as and when due, (iii) the legality, validity, binding effect or enforceability of the Loan Documents or (iv) the rights, remedies and benefits available to, or conferred upon, the Administrative Agent or the Secured Parties under any of the Loan Documents.
“Material Agreement” means any Contract required to be disclosed (including amendments thereto) under regulations promulgated under the Securities Act of 1933 or Securities Exchange Act of 1934, as may be amended, solely to the extent that the absence or termination of such Contract would reasonably be expected to result in a Material Adverse Effect or in a material adverse effect on any Product Commercialization and Development Activities. For the avoidance of doubt, employment and management contracts shall not be Material Agreements.
“Material Indebtedness” means, at any time, any Indebtedness of any Obligor or Subsidiary thereof, the outstanding principal amount of which, individually or in the aggregate, exceeds $10,000,000 (or the Equivalent Amount in other currencies).
“Material Intellectual Property” means all Intellectual Property, whether currently owned by (or purported to be owned by) or licensed to (or purported to be licensed to) the Borrower or
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any of its Subsidiaries, or acquired, developed, created or obtained by or otherwise licensed to the Borrower or any of its Subsidiaries after the date hereof that is, in each case, material to the business of the Borrower or any of its Subsidiaries, taken as a whole. Material Intellectual Property includes all Intellectual Property that is material, or specifically related to or directed towards (i) Trudhesa, INP 105 and INP 107 and (ii) Product Commercialization and Development Activities with respect to Trudhesa, INP 105 and INP 107.
“Material Subsidiary” means any Subsidiary of the Borrower that is not an Immaterial Subsidiary.
“Maturity Date” means March 17, 2027.
“Maximum Rate” has the meaning set forth in Section 14.17.
“Medicaid” means that government-sponsored entitlement program under Title XIX, P.L. 89-97 of the Social Security Act, which provides federal grants to states for medical assistance based on specific eligibility criteria, as set forth on Section 1396, et seq. of Title 42 of the United States Code.
“Medicare” means that government-sponsored insurance program under Title XVIII, P.L. 89-97, of the Social Security Act, which provides for a health insurance system for eligible elderly and disabled individuals, as set forth at Section 1395, et seq. of Title 42 of the United States Code.
“Minimum Liquidity Amount” means $12,500,000.
“Mortgage Deliverables” has the meaning set forth in Section 8.11(b)(iv).
“Multiemployer Plan” means any multiemployer plan, as defined in Section 400l(a)(3) of ERISA, to which any ERISA Affiliate incurs or otherwise has any obligation or liability, contingent or otherwise.
“NDA” means (i) (x) a new drug application (as defined in the FD&C Act) and (y) any similar application or functional equivalent relating to any new drug application applicable to or required by any non-U.S. country, jurisdiction or Governmental Authority, and (ii) all supplements and amendments that may be filed with respect to any of the foregoing.
“Net Cash Proceeds” means, (i) with respect to any Casualty Event experienced or suffered by any Obligor or any of its Subsidiaries, the amount of cash proceeds received (directly or indirectly) from time to time by or on behalf of such Person in respect thereof (other than the proceeds of any business interruption insurance) after deducting therefrom only (w) reasonable costs and expenses related thereto incurred by such Obligor or such Subsidiary in connection therewith, (x) Taxes (including transfer Taxes or net income Taxes) paid or payable in connection therewith, (y) reasonable reserves established for liabilities estimated to be payable in respect of such Casualty Event and deposited into escrow with a third party escrow agent on terms reasonably acceptable to the Administrative Agent or set aside in a separate Deposit Account that is subject to an account control agreement in favor of the Administrative Agent and (z) any amounts required to be used to prepay Permitted Indebtedness pursuant to Section 9.01(j) and 9.01(l) secured by the assets subject to such Casualty Event (other than (A) Indebtedness owing to the Administrative
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Agent or any Lender under this Agreement or the other Loan Documents and (B) Indebtedness assumed by the purchaser of such asset); and (ii) with respect to any Asset Sale by any Obligor or any of its Subsidiaries, the amount of cash proceeds received (directly or indirectly) from time to time by or on behalf of such Person in respect thereof after deducting therefrom only (w) reasonable costs and expenses related thereto incurred by such Obligor or such Subsidiary in connection therewith, (x) Taxes (including transfer Taxes or net income Taxes) paid or payable in connection therewith, (y) reasonable reserves established for liabilities estimated to be payable in respect of such Asset Sale and deposited into escrow with a third party escrow agent on terms reasonably acceptable to the Administrative Agent or set aside in a separate Deposit Account that is subject to an account control agreement in favor of the Administrative Agent and (z) any amounts required to be used to prepay Permitted Indebtedness pursuant to Section 9.01(j) and 9.01(l) secured by the assets subject to such Asset Sale (other than (A) Indebtedness owing to the Administrative Agent or any Lender under this Agreement or the other Loan Documents and (B) Indebtedness assumed by the purchaser of such asset); provided that, in each case of clauses (i) and (ii), costs and expenses shall only be deducted to the extent that the amounts so deducted are (x) actually paid or payable to a Person that is not an Affiliate of any Obligor or any of its Subsidiaries and (y) properly attributable to such Casualty Event or Asset Sale, as the case may be.
“Net Sales” means “Net Sales” as defined in the Royalty Interest Financing Agreement as in effect on the date hereof.
“Note” means a promissory note, in substantially the form of Exhibit A hereto, executed and delivered by the Borrower to any Lender in accordance with Section 2.04.
“NY UCC” means the UCC as in effect from time to time in New York.
“Oaktree Lender” means any Lender that is an Affiliate or managed fund or account of Oaktree Capital Management, L.P.
“Obligations” means, with respect to any Obligor, all amounts, obligations, liabilities, covenants and duties of every type and description owing by such Obligor to any Secured Party (including all Guaranteed Obligations) any other indemnitee hereunder or any participant, arising out of, under, or in connection with, any Loan Document, whether direct or indirect (regardless of whether acquired by assignment), absolute or contingent, due or to become due, whether liquidated or not, now existing or hereafter arising and however acquired, and whether or not evidenced by any instrument or for the payment of money, including, without duplication, (i) if such Obligor is the Borrower, all Loans, (ii) all interest, whether or not accruing after the filing of any petition in bankruptcy or after the commencement of any insolvency, reorganization or similar proceeding, and whether or not a claim for post-filing or post-petition interest is allowed in any such proceeding, and (iii) all other fees, expenses (including fees, charges and disbursement of counsel), interest, Prepayment Fee, Exit Fee, commissions, charges, costs, disbursements, indemnities and reimbursement of amounts paid and other sums chargeable to such Obligor under any Loan Document.
“Obligors” means, collectively, the Borrower and the Subsidiary Guarantors and their respective successors and permitted assigns.
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“OFAC” has the meaning assigned to such term in the definition of “Anti-Terrorism Laws.”
“Ordinary Course” means ordinary course of business or ordinary trade activities that are customary for similar businesses in the normal course of their ordinary operations and not while in financial distress.
“Organic Document” means, for any Person, such Person’s formation documents, including, as applicable, its certificate of incorporation, by-laws, certificate of partnership, partnership agreement, certificate of formation, limited liability agreement, operating agreement and all shareholder agreements, voting trusts and similar arrangements applicable to such Person’s Equity Interests, or any equivalent document of any of the foregoing.
“Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).
“Other Taxes” means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 5.03(g)).
“Participant” has the meaning set forth in Section 14.05(e).
“Participant Register” has the meaning set forth in Section 14.05(e).
“Patents” means (i) all domestic, national, regional and foreign patents, patent rights, patent applications, provisional applications, patent disclosures and Invention disclosures issued or filed, (ii) any patent applications filed from such patents, patent rights, patent applications, provisional applications, patent disclosures and Invention disclosures claiming priority to any of these, including renewals, divisionals, continuations, continuations-in-part, substitutions, provisionals, converted provisionals, and continued prosecution applications, (iii) any patents that have issued or in the future issue from the foregoing described in clauses (i) and (ii), including utility models, petty patents and design patents and certificates of invention; and (iv) all extensions or restorations by existing or future extension or restoration mechanisms, including revalidations, reissues, re-examinations, revisions, and term extensions (including any supplementary protection certificates and the like) of the foregoing patents or patent applications described in clauses (i), (ii) and (iii), including the Inventions claimed in any of the foregoing and any priority rights arising therefrom.
“Patriot Act” has the meaning set forth in Section 14.19.
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“Payment Date” means (i) March 31, June 30, September 30 and December 31 of each year, commencing on the first such date to occur after the Closing Date (provided, that if such date is not a Business Day, then on the immediately preceding Business Day); and (ii) the Maturity Date.
“Payment Recipient” has the meaning set forth in Section 12.13(a).
“PBGC” means the United States Pension Benefit Guaranty Corporation referred to and defined in ERISA and any successor entity performing similar functions.
“PDMA” means the Prescription Drug Marketing Act of 1987, 21 U.S.C. §§ 331 et seq. (or any successor thereto), as amended from time to time, and the rules, regulations, guidelines, guidance documents and compliance policy guides issued or promulgated thereunder.
““Permitted Acquisition” means any Acquisition by the Borrower or any of its Subsidiaries, whether by purchase, merger or otherwise; provided that:
(a) immediately prior to, and immediately after giving effect thereto, no Default or Event of Default shall have occurred and be continuing or could reasonably be expected to result therefrom;
(b) such Acquisition shall comply in all material respects with all applicable Laws and all applicable Governmental Approvals;
(c) in the case of any Acquisition of Equity Interests of another Person, after giving effect to such Acquisition, all Equity Interests of such other Person acquired by the Borrower or any of its Subsidiaries shall be owned, directly or indirectly, beneficially and of record, by the Borrower or any of its Subsidiaries, and, the Borrower shall cause such acquired Person to satisfy each of the actions set forth in Section 8.11 as required by such Section;
(d) on a Pro Forma Basis after giving effect to such Acquisition, the Borrower and its Subsidiaries shall be in compliance with the financial covenants set forth in Section 10;
(e) to the extent that the purchase price for any such Acquisition is paid in cash, the amount thereof does not exceed $25,000,000 (or the Equivalent Amount in other currencies) in the aggregate during the term of this Agreement (excluding any Deferred Acquisition Consideration consisting of milestone and royalty payments that are calculated on the basis of future revenues pursuant to an agreement entered as an Arm’s Length Transaction);
(f) to the extent that the purchase price for any such Acquisition is paid in Equity Interests, all such Equity Interests shall be Qualified Equity Interests;
(g) in the case of any such Acquisition that has a purchase price (including reasonable estimates of any Deferred Acquisition Consideration) in excess of $35,000,000 (and excluding any Deferred Acquisition Consideration consisting of
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milestone and royalty payments that are in each case calculated on the basis of future revenues pursuant to an agreement entered as an Arm’s Length Transaction), (A) the Borrower shall provide to the Administrative Agent (i) at least ten (10) Business Day’s prior written notice of any such Acquisition, together with summaries, prepared in reasonable detail, of all due diligence conducted by or on behalf of the Borrower or the applicable Subsidiary, as applicable, prior to such Acquisition, in each case subject to customary confidentiality restrictions, (ii) subject to customary confidentiality restrictions, a copy of the draft purchase agreement related to the proposed Acquisition (and any related documents reasonably requested by the Administrative Agent), (iii) pro forma financial statements of the Borrower and its Subsidiaries (as of the last day of the most recently ended fiscal quarter prior to the date of consummation of such Acquisition for which financial statements are required to be delivered pursuant to Section 8.01(a) or (b)) after giving effect to such Acquisition, and (iv) subject to customary confidentiality restrictions, any other information reasonably requested (to the extent available), by the Administrative Agent and available to the Obligors and (B) to the extent the cash purchase price exceeds $35,000,000 (excluding any Deferred Acquisition Consideration consisting of milestone and royalty payments that are calculated on the basis of future revenues pursuant to an agreement entered as an Arm’s Length Transaction), the Administrative Agent shall have consented to in writing to such Acquisition (such consent not to be unreasonably delayed, withheld or conditioned); and
(h) no Obligor or any of its Subsidiaries (including any acquired Person) shall, in connection with any such Acquisition, assume or remain liable with respect to (x) any Indebtedness of the related seller or the business, Person or assets acquired, except to the extent permitted pursuant to Section 9.01(l), (y) any Lien on any business, Person or assets acquired, except to the extent permitted pursuant to Section 9.02, (z) any other liabilities (including Tax, ERISA and Environmental Liabilities), except to the extent the assumption of such liability could not reasonably be expected to result in a Material Adverse Effect. Any other such Indebtedness, liabilities or Liens not permitted to be assumed, continued or otherwise supported by any Obligor or Subsidiary thereof hereunder shall be paid in full or released within sixty (60) days of the acquisition date as to the business, Persons or properties being so acquired on or before the consummation of such Acquisition.
“Permitted Bond Hedge Transaction” means any call or capped call option (or substantively equivalent derivative transaction) relating to the Borrower’s common stock (or other securities or property following a merger event, reclassification or other similar fundamental change of the Borrower, or adjustment with respect to the common stock of the Borrower) that is (A) purchased or otherwise entered into by the Borrower in connection with the issuance of any Permitted Convertible Debt, (B) settled in common stock of the Borrower, cash or a combination thereof (such amount of cash determined by reference to the price of the Borrower’s common stock and cash in lieu of fractional shares of common stock of the Borrower and (C) on terms and conditions customary for bond hedge transactions in respect of transactions related to public market convertible indebtedness (pursuant to a public offering or an offering under Rule 144A or Regulation S of the Securities Act) as reasonably determined by the Borrower.
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“Permitted Cash Equivalent Investments” means (i) marketable direct obligations issued or unconditionally guaranteed by the United States or any member states of the European Union or any agency or any state thereof having maturities of not more than one (1) year from the date of acquisition, (ii) commercial paper maturing no more than three hundred sixty five (360) days after the date of acquisition thereof and having the highest rating from either Standard & Poor’s Ratings Group or Moody’s Investors Service, Inc., (iii) certificates of deposit maturing no more than one (1) year after issue that are issued by any bank organized under the Laws of the United States, or any state thereof, or the District of Columbia, or any U.S. branch of a foreign bank having, at the date of acquisition thereof, combined capital and surplus of not less than $500,000,000, (iv) any money market or similar funds that exclusively hold any of the foregoing and (v) other short term liquid investments approved in writing by the Administrative Agent in its sole discretion.
“Permitted Convertible Debt” means Indebtedness having a feature which entitles the holder thereof to convert or exchange all or a portion of such Indebtedness into common stock of the Borrower, cash or a combination thereof; provided, that (i) such Permitted Convertible Debt shall be unsecured, (ii) such Permitted Convertible Debt shall have recourse only to the Borrower, (iii) such Permitted Convertible Debt shall not include any financial maintenance covenants and shall only include covenants, defaults and conversion rights that are customary for public market convertible indebtedness (pursuant to a public offering or an offering under Rule 144A or Regulation S of the Securities Act) as of the date of issuance, as determined by the Borrower in its good faith judgment, (iv) no Default or Event of Default shall have occurred and be continuing at the time of incurrence of such Permitted Convertible Debt or would result therefrom, (v) such Permitted Convertible Debt shall not have a scheduled maturity date and shall not be subject to any mandatory repurchase or redemption (other than in connection with a customary change of control or “fundamental change” provision) earlier than 180 calendar days after the Maturity Date, (vi) such Permitted Convertible Debt shall not have an all-in-yield greater than 550 basis points as determined in good faith by the Administrative Agent (with any original issue discount equated to interested based on the maturity date of such Permitted Convertible Debt and excluding any additional or special interest that may become payable from time to time) and (vii) the Borrower shall have delivered to the Administrative Agent a certificate of a Responsible Officer of Parent certifying as to the foregoing clauses (i) through (vi).
“Permitted Hedging Agreement” means a Hedging Agreement entered into by any Obligor in such Obligor’s Ordinary Course for the purpose of hedging currency risks or interest rate risks (and not for speculative purposes) and (x) with respect to hedging currency risks, in an aggregate notional amount for all such Hedging Agreements not in excess of $10,000,000 (or the Equivalent Amount in other currencies) and (y) with respect to hedging interest rate risks, in an aggregate notional amount for all such Hedging Agreements not in excess of 100% of the aggregate principal amount of Loans outstanding at such time.
“Permitted Indebtedness” means any Indebtedness permitted under Section 9.01.
“Permitted Intercreditor Agreement” means the intercreditor agreement entered into by and between the Administrative Agent and the providers (or agent or trustee on their behalf) of the Royalty Interest Financing, dated as of the date hereofClosing Date.
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“Permitted Licenses” are: (A) licenses of over-the-counter and other end-user software that is commercially available to the public; (B) non-exclusive licenses for the use of the Intellectual Property of Borrower or any of its Subsidiaries entered into in the Ordinary Course including to contract manufacturing organizations, contract research organizations, distributors and other commercialization partners, (C) non-exclusive licenses for the use of the Intellectual Property of Borrower or any of its Subsidiaries in connection with the further development, co-development, co-promotion, co-commercialization and other collaborative arrangements to expand the market for the Product in the primary care sector; (D) exclusive licenses for the use of the Intellectual Property of any Obligor or any of its Subsidiaries entered into other than in the Ordinary Course; provided, that with respect to each such license described in this clause (D), the license (i) constitutes an Arm’s Length Transaction, the terms of which (a) do not restrict the ability of Borrower or any of its Subsidiaries, as applicable, to pledge, grant a security interest in or lien on, or assign or otherwise dispose of any Intellectual Property and (b) are commercially reasonable and, (ii) (x) is limited in territory with respect to a specific geographic country or region outside of the United States or (y) is a license of any delivery device or mechanism that delivers a pharmaceutical product (including the precision olefactory delivery platform technology known as POD Technology) other than for use in connection with any individual indication or variation of Trudhesa or any combination of Trudhesa, or any indication or variation thereof, with any other product and (iii) such license has been approved by the Administrative Agent and the Lenders (acting in their sole discretion); (E) in-licenses of Intellectual Property, (F) licenses in furtherance of the objectives of the Royalty Interest Financing,[reserved], or (G) exclusive licenses for the use of the Intellectual Property of any Obligor or any of its Subsidiaries, provided, that with respect to each such license described in this clause (G), such license (i) constitutes an Arm’s Length Transaction, the terms of which do not restrict the ability of the Borrower or any of its Subsidiaries, as applicable, to pledge, grant a security interest in or lien on, or assign or otherwise dispose of any Intellectual Property, (ii) relates to administration of the Product for indications other than migraine or relates principally to products other than the Product and, (iii) is on commercially reasonable terms and (iv) has been approved by the Administrative Agent and the Lenders (acting in their sole discretion).
“Permitted Liens” means any Liens permitted under Section 9.02.
“Permitted Priority Liens” means (a) Liens permitted under Section 9.02 (c), (d), (e), (f), (g), (h), (i), (k), (p), (q), (r) and (s)(ii) and (b) Liens permitted under Sections 9.02(b) and (j); provided that such Liens are also of the type described in clause (a) of this definition.
“Permitted Refinancing” means, with respect to any Indebtedness permitted to be refinanced, extended, renewed or replaced hereunder, any refinancings, extensions, renewals and replacements of such Indebtedness; provided that such refinancing, extension, renewal or replacement shall not (i) increase the outstanding principal amount of the Indebtedness being refinanced, extended, renewed or replaced, except by an amount equal to accrued interest and any required prepayment premium or other reasonable amount paid, and fees and expenses reasonably incurred in connection therewith, (ii) contain terms relating to outstanding principal amount, amortization, maturity, collateral security (if any) or subordination (if any), or other material terms that, taken as a whole, are less favorable in any material respect to the Obligors and their respective Subsidiaries or the Secured Parties than the terms of any agreement or instrument governing such existing Indebtedness, (iii) have an applicable interest rate which does not exceed the greater of
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(A) the rate of interest of the Indebtedness being replaced and (B) the then applicable market interest rate, (iv) contain any new requirement to grant any Lien or to give any Guarantee that was not an existing requirement of such Indebtedness and (v) after giving effect to such refinancing, extension, renewal or replacement, no Default shall have occurred (or could reasonably be expected to occur) as a result thereof.
“Permitted Warrant Transaction” means any call option, warrant or right to purchase (or substantively equivalent derivative transaction) relating to the Borrower’s common stock (or other securities or property following a merger event, reclassification or other change of the common stock of the Borrower) sold by the Borrower and with recourse to the Borrower only, substantially concurrently with any purchase by the Borrower of a Permitted Bond Hedge Transaction and settled in common stock of the Borrower, cash or a combination thereof (such amount of cash determined by reference to the price of the Borrower’s common stock or such other securities or property), and cash in lieu of fractional shares of common stock of the Borrower, with a strike price higher than the strike price of the Permitted Bond Hedge Transaction.
“Person” means any individual, corporation, company, voluntary association, partnership, limited liability company, joint venture, trust, unincorporated organization or Governmental Authority or other entity of whatever nature.
“Plan” means any employee pension benefit plan (other than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA, and in respect of which the Borrower or any ERISA Affiliate is (or, if such plan were terminated, would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.
“Prepayment Fee” means with respect to any prepayment of all or any portion of the Loans, whether by optional or mandatory prepayment, acceleration or otherwise (in each case, other than any scheduled amortization payment), occurring (i) on or prior to the second anniversary of the Closing Date, an amount equal to the amount of interest that would have been paid on the principal amount of the Loans being so repaid or prepaid for the period from and including the date of such repayment or prepayment to but excluding the date that is the two (2) year anniversary of the Closing Date, plus three percent (3%) of the principal amount of the Loans being so repaid or prepaid and the Commitments being so terminated, (ii) at any time after the second anniversary of the Closing Date but on or prior to the third anniversary of the Closing Date, an amount equal to three percent (3%) of the aggregate outstanding principal amount of the Loans being so repaid or prepaid, (iii) at any time after the third anniversary of the Closing Date but on or prior to the fourth anniversary of the Closing Date, an amount equal to one percent (1%) of the aggregate outstanding principal amount of the Loans being so repaid or prepaid and (iv) if the prepayment is made after the fourth anniversary of the Closing Date, 0%.
“Prepayment Price” has the meaning set forth in Section 3.03(a)(i).
“Principal Payment Date” means each of (i) June 30, 2026 and thereafter each Payment Date and, if applicable, (ii) the Maturity Date.
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“Product” means (i) those pharmaceutical or biological products (including delivery devices) and described in reasonable detail on Schedule 2 attached hereto, and (ii) any current or future pharmaceutical or biological product (including delivery devices) developed, distributed, dispensed, imported, exported, labeled, promoted, manufactured, licensed, marketed, sold or otherwise commercialized by any Obligor or any of its Subsidiaries, including any such product in development or which may be developed.
“Product Authorizations” means any and all Governmental Approvals, including Regulatory Approvals, whether U.S. or non-U.S. (including all applicable ANDAs, NDAs, BLAs, INDs, Product Standards, supplements, amendments, pre- and post- approvals, governmental price and reimbursement approvals and approvals of applications for regulatory exclusivity) of any Regulatory Authority, in each case, necessary to be held or maintained by, or for the benefit of, any Obligor or any of its Subsidiaries for the ownership, use or commercialization of any Product or for any Product Commercialization and Development Activities with respect thereto in any country or jurisdiction.
“Product Commercialization and Development Activities” means, with respect to any Product, any combination of research, development, manufacture, import, use, sale, licensing, importation, exportation, shipping, storage, handling, design, labeling, marketing, promotion, supply, distribution, testing, packaging, purchasing or other commercialization activities, receipt of payment in respect of any of the foregoing (including, without limitation, in respect of licensing, royalty or similar payments), or any similar or other activities the purpose of which is to commercially exploit such Product.
“Product Standards” means all safety, quality and other specifications and standards applicable to any Product, including all pharmaceutical, biological and other standards promulgated by Standards Bodies.
“Pro Forma Basis” means, with respect to the calculation of any financial ratio, as of any date, that pro forma effect will be given to the Transactions, any Permitted Acquisition, any issuance, incurrence, assumption or permanent repayment of Indebtedness (including Indebtedness issued, incurred or assumed as a result of, or to finance, any relevant transaction and for which any such financial ratio is being calculated) and all sales, transfers and other dispositions or discontinuance of any subsidiary, line of business or division, in each case that have occurred during the four consecutive fiscal quarter period of the Borrower being used to calculate such financial ratio (the “Reference Period”), or subsequent to the end of the Reference Period but prior to such date or prior to or simultaneously with the event for which a determination under this definition is made, as if each such event occurred on the first day of the Reference Period.
“Prohibited Payment” means any bribe, rebate, payoff, influence payment, kickback or other payment or gift of money or anything of value (including meals or entertainment) to any officer, employee or ceremonial office holder of any government or instrumentality thereof, political party or supra-national organization (such as the United Nations), any political candidate, any royal family member or any other person who is connected or associated personally with any of the foregoing that is prohibited under any Law for the purpose of influencing any act or decision of such payee in his official capacity, inducing such payee to do or omit to do any act in violation of his lawful duty, securing any improper advantage or inducing such payee to use his influence
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with a government or instrumentality thereof to affect or influence any act or decision of such government or instrumentality.
“Proportionate Share” means, with respect to any Lender, the percentage obtained by dividing (i) the sum of the Commitments (or, if the Commitments are terminated, the outstanding principal amount of the Loans) of such Lender then in effect by (ii) the sum of the Commitments (or, if the Commitments are terminated, the outstanding principal amount of the Loans) of all Lenders then in effect.
“Qualified Equity Interest” means, with respect to any Person, any Equity Interest of such Person that is not a Disqualified Equity Interest.
“Qualified Plan” means an employee benefit plan (as defined in Section 3(3) of ERISA) other than a Multiemployer Plan (i) that is or was at any time maintained or sponsored by any Obligor or any ERISA Affiliate thereof or to which any Obligor or any ERISA Affiliate thereof has ever made, or was ever obligated to make, contributions, and (ii) that is intended to be tax qualified under Section 401(a) of the Code.
“Real Property Security Documents” means any Mortgage Deliverables or Landlord Consents.
“Recipient” means any Lender or any other recipient of any payment to be made by or on account of any Obligation.
“Referral Source” has the meaning set forth in Section 7.07(b).
“Refinanced Facility” means that certain Loan and Security Agreement dated as of July 2, 2021 among Oxford Finance LLC, as collateral agent and lender, Silicon Valley Bank, as lender, and the Borrower.
“Register” has the meaning set forth in Section 14.05(d).
“Regulation T” means Regulation T of the Board of Governors of the Federal Reserve System, as amended.
“Regulation U” means Regulation U of the Board of Governors of the Federal Reserve System, as amended.
“Regulation X” means Regulation X of the Board of Governors of the Federal Reserve System, as amended.
“Regulatory Approvals” mean, with respect to a Product, the approval of the applicable Regulatory Authority necessary for the testing, manufacturing, use, storage, supply, promotion, marketing or sale of such Product for a particular indication in a particular jurisdiction.
“Regulatory Authority” means any Governmental Authority, whether U.S. or non-U.S., that is concerned with or has regulatory or supervisory oversight with respect to any Product or
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any Product Commercialization and Development Activities relating to any Product, including the FDA and all equivalent Governmental Authorities, whether U.S. or non-U.S.
“Reinvestment” has the meaning set forth in Section 3.03(b)(i).
“Reinvestment Period” has the meaning set forth in Section 3.03(b)(i).
“Related Parties” has the meaning set forth in Section 14.16.
“Resignation Effective Date” has the meaning set forth in Section 12.09(a).
“Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
“Responsible Officer” of any Person means each of the president, chief executive officer, chief financial officer and similar officer of such Person.
“Restricted Payment” means any dividend or other distribution (whether in cash, Equity Interests or other property) with respect to any Equity Interests of any Obligor or any of its Subsidiaries, or any payment (whether in cash, Equity Interests or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any such Equity Interests of any Obligor or any of its Subsidiaries, or any option, warrant or other right to acquire any such Equity Interests of any Obligor or any of its Subsidiaries; provided, that any payments on Indebtedness convertible or exchangeable into Equity Interests shall not be Restricted Payments and provided further that the issuance of, entry into (including any payments of premiums in connection therewith), performance of obligations under (including any payments of interest), and conversion, exercise, repurchase, redemption, settlement or early termination or cancellation of (whether in whole or in part and including by netting or set-off) (in each case, whether in cash, common stock of the Borrower or, following a merger event or other change of the common stock of Borrower, other securities or property), or the satisfaction of any condition that would permit or require any of the foregoing, any Permitted Convertible Debt, any Permitted Bond Hedge Transaction and any Permitted Warrant Transaction, including any payment or delivery in connection with a Permitted Warrant Transaction by (i) delivery of shares of the Borrower’s common stock upon net share settlement thereof and any related purchase of such common stock required to be made in connection with such delivery, (ii) set-off or payment of an early termination payment or similar payment thereunder, in each case, in the Borrower’s common stock upon any early termination thereof or (iii) in the event of cash settlement upon settlement, any payment of a cash settlement or equivalent amount, in each case, shall not constitute Restricted Payments..
“Restrictive Agreement” means any Contract or other arrangement that prohibits, restricts or imposes any condition upon (i) the ability of any Obligor or any of its Subsidiaries to create, incur or permit to exist any Lien upon any of its properties or assets (other than (x) customary provisions in Contracts (including without limitation leases and in-bound licenses of Intellectual Property) restricting the assignment thereof and (y) restrictions or conditions imposed by any Contract governing secured Permitted Indebtedness permitted under Section 9.01(j), to the extent that such restrictions or conditions apply only to the property or assets securing such Indebtedness), or (ii) the ability of any Obligor or any of its Subsidiaries to make Restricted Payments with respect
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to any of their respective Equity Interests or to make or repay loans or advances to any other Obligor or any of its Subsidiaries or such other Obligor or to Guarantee Indebtedness of any other Obligor or any of its Subsidiaries thereof or such other Obligor.
“RIFA Obligations” has the meaning assigned to such term in the First Amendment.
“Royalty Interest Financing” means the transaction contemplated by the Royalty Interest Financing Agreement relating to the Royalty Interest Financing Secured Product.
“Royalty Interest Financing Agreement” means the Royalty Interest Financing Agreement by and between the Borrower, Oaktree Fund Administration, LLC, and the other parties thereto, dated as of the date hereofClosing Date (as amended, restated, amended and restated, supplemented or otherwise modified from time to time in accordance with the Permitted Intercreditor Agreement).
“Royalty Interest Financing Secured Product” means Trudhesa, across all marketed indications in the United States.
“Sanction” means any international economic or financial sanction or trade embargo imposed, administered or enforced from time to time by the United States Government (including, without limitation, OFAC), the United Nations Security Council, the European Union or its Member States, Her Majesty’s Treasury or other relevant sanctions authority where the Borrower is located or conducts business.
“Sanctioned Person” means, at any time, (i) any Person listed in any Sanctions-related list of designated Persons maintained by the United States Government (including, without limitation, OFAC), the United Nations Security Council, the European Union or its Member States, Her Majesty’s Treasury, or other relevant sanctions authority, (ii) any Person organized or resident in a Designated Jurisdiction or (iii) any Person fifty percent (50%) or more owned or is controlled by any such Person or Persons described in the foregoing clause (i) or (ii).
“Scheduled Unavailability Date” has the meaning set forth in Section 5.05(a)(ii).
“Secured Parties” means the Lenders, the Administrative Agent and any of their respective permitted transferees or assigns.
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Security Agreement” means the Security Agreement, delivered pursuant to Section 6.01(h), among the Obligors and the Administrative Agent, granting a security interest in the Obligors’ personal property in favor of the Administrative Agent, for the benefit of the Secured Parties.
“Security Documents” means, collectively, the Security Agreement, each Short-Form IP Security Agreement, each Real Property Security Document, and each other security document, control agreement or financing statement required or recommended to perfect Liens in favor of the Secured Parties for purposes of securing the Obligations.
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“Short-Form IP Security Agreements” means short-form Copyright, Patent or Trademark (as the case may be) security agreements, dated as of the Closing Date and substantially in the form of Exhibit C, D and E to the Security Agreement, entered into by one or more Obligors in favor of the Secured Parties, each in form and substance reasonably satisfactory to the Administrative Agent (and as amended, modified or replaced from time to time).
“Solvent” means, as to any Person as of any date of determination, that on such date (i) the fair value of the property of such Person is greater than the total amount of liabilities, including contingent liabilities, of such Person, (ii) the present fair saleable value of such Person is not less than the amount that will be required to pay the probable liability of such Person on its debts as they become absolute and matured in the ordinary course of business, (iii) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person’s ability to pay such debts and liabilities as they mature in the ordinary course and (iv) such Person is not engaged in a business or transaction, and is not about to engage in a business or transaction, for which such Person’s property would constitute an unreasonably small capital after giving due consideration to the prevailing practice in the industry in which such Person is engaged or is to engage. The amount of any contingent liability at any time shall be computed as the amount that, in light of all of the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.
“Specified Products” has the meaning set forth in Section 11.01(ml).
“Standards Bodies” means any of the organizations that create, sponsor or maintain safety, quality or other standards, including ISO, ANSI, CEN and SCC and the like.
“Subsidiary” means, with respect to any Person (the “parent”) at any date, any corporation, limited liability company, partnership, association or other entity the accounts of which would be consolidated with those of the parent in the parent’s consolidated financial statements if such financial statements were prepared in accordance with GAAP as of such date, as well as any other corporation, limited liability company, partnership, association or other entity (i) of which securities or other ownership interests representing more than fifty percent (50%) of the equity or more than fifty percent (50%) of the ordinary voting power or, in the case of a partnership, more than fifty percent (50%) of the general partnership interests are, as of such date, owned, controlled or held, directly or indirectly, or (ii) that is, as of such date, otherwise Controlled, by the parent or one or more direct or indirect subsidiaries of the parent or by the parent and one or more direct or indirect subsidiaries of the parent. Unless otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of the Borrower.
“Subsidiary Guarantors” means each Subsidiary of the Borrower identified under the caption “SUBSIDIARY GUARANTORS” on the signature pages hereto and each Subsidiary of the Borrower that becomes, or is required to become, a “Subsidiary Guarantor” after the date hereof pursuant to Section 8.11(a) or (b).
“Successor Rate” has the meaning set forth in Section 5.05(a)(iii)(B).
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“Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
“Termination Conditions” has the meaning set forth in Section 13.03.
“Term SOFR” means for any Interest Period the rate per annum equal to the Term SOFR Screen Rate two U.S. Government Securities Business Days prior to the commencement of such Interest Period with a term equivalent to such Interest Period; provided that if the rate is not published prior to 11:00 a.m. on such determination date then Term SOFR means the Term SOFR Screen Rate on the first U.S. Government Securities Business Day immediately prior thereto, in each case, plus the Credit Spread Adjustment for such Interest Period; provided that if the Term SOFR Screen Rate determined in accordance with the foregoing would otherwise be less than 1.00%, the Term SOFR shall be deemed 1.00% for purposes of this Agreement.
“Term SOFR Replacement Date” has the meaning assigned to such term in Section 5.05(a)(iii)(A).
“Term SOFR Screen Rate” means the forward-looking SOFR term rate administered by CME (or any successor administrator satisfactory to the Administrative Agent) and published on the applicable Bloomberg screen page (or such other commercially available source providing such quotations as may be designated by the Administrative Agent from time to time).
“Third Party” means any Person other than the Lenders or the Borrower.
“Title IV Plan” means an employee benefit plan (as defined in Section 3(3) of ERISA) other than a Multiemployer Plan (i) that is or was at any time maintained or sponsored by any Obligor or any ERISA Affiliate thereof or to which any Obligor or any ERISA Affiliate thereof has ever made, or was obligated to make, contributions, and (ii) that is or was subject to Section 412 of the Code, Section 302 of ERISA or Title IV of ERISA.
“Trademarks” means all trade names, trademarks and service marks, trade dress, corporate names, logos, Internet domain names, IP addresses, social media handles, uniform resource locators and other indicia of origin, trademark and service mark registrations, and applications for trademark and service mark registrations, whether or not registered, and any and all common law rights thereto, including (i) all renewals of trademark and service mark registrations and (ii) all rights whatsoever accruing thereunder or pertaining thereto throughout the world, together, in each case, with the goodwill of the business connected with the use thereof and symbolized thereby.
“Trade Secrets” means all know-how, trade secrets and other proprietary or confidential information, any information of a scientific, technical, or business nature in any form or medium, Inventions and Invention disclosures, all documented research, developmental, demonstration or engineering work (including all novel manufacturing methods), and all other technical data and information related thereto, including laboratory notebooks, chemical and biological materials (including any compounds, DNA, RNA, clones, vectors, cells and any expression product, progeny, derivatives or improvements thereto) and the results of experimentation and testing, including samples.
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“Tranche A-1 Commitment” means, with respect to each Lender, the obligation of such Lender to make Tranche A-1 Term Loans to the Borrower on the Closing Date in accordance with the terms and conditions of this Agreement, which commitment is in the amount set forth opposite such Lender’s name in the Loan Schedule under the caption “Commitment” for Tranche A-1 Term Loans, as such Schedule may be amended from time to time pursuant to an Assignment and Assumption or otherwise. The aggregate amount of Tranche A-1 Commitments as of the Closing Date, before giving effect to the funding thereof, equalled $50,000,000. The Tranche A-1 Term Loans were funded in full on the Closing Date.
“Tranche A-1 Term Loans” means the Loans made by the Lenders on the Closing Date in an initial aggregate principal amount of $50,000,000, plus any accrued and capitalized PIK Interest thereon. As of the First Amendment Effective Date and after giving effect to the consummation of the transactions contemplated thereby, the aggregate principal amount of the Tranche A-1 Term Loans is $51,104,103.78.
“Tranche A-2 Commitment” means, with respect to each Lender, the obligation of such Lender to make Tranche A-2 Term Loans to the Borrower on the First Amendment Effective Date in accordance with the terms and conditions of this Agreement, which commitment is in the amount set forth opposite such Lender’s name in the Loan Schedule under the caption “Commitment” for Tranche A-2 Term Loans, as such Schedule may be amended from time to time pursuant to an Assignment and Assumption or otherwise, it being understood and agreed that each Lender with a Tranche A-2 Commitment shall make its Proportionate Share of $9,000,000 of the Tranche A-2 Term Loans on a cashless basis in exchange for its Proportionate Share of the Exchanged RIFA Obligations as set forth in Section 3 of the First Amendment. The aggregate amount of Tranche A-2 Commitments on the date of this Agreement equals $12,000,000.
“Tranche A-2 Term Loans” has the meaning assigned to such term in Section 2.01(a)(ii).
“Transactions” means (a) the negotiation, preparation, execution, delivery and performance by each Obligor of this Agreement and the other Loan Documents to which such Obligor is (or is intended to be) a party, the making of the Loans hereunder, and all other transactions contemplated pursuant to this Agreement and the other Loan Documents, including the creation of the Liens pursuant to the Security Documents, (b) the Closing Date Payoff and (c) the payment of all fees and expenses incurred or paid by the Obligors in connection with the foregoing.
“Trudhesa” means the pharmaceutical product that has been Developed, is being Developed, and will be Developed or Commercialized during the term by the Borrower, its Affiliates or its licensees comprising dihydroergotamine mesylate nasal spray for migraine designed to deliver medication to the ideal place in the nose for rapid absorption, including any improvements or modifications thereto, across all marketed indications in the United States, in any and all dosage forms, presentations, dosages and formations and whether alone or in combination with one or more other therapeutically active pharmaceutical ingredients, including any improvements thereto or modifications thereof.
“United States” or “U.S.” means the United States of America, its fifty states and the District of Columbia.
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“U.S. Government Securities Business Day” means any day, except for (i) a Saturday, (ii) a Sunday or (iii) a day on which the Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in United States government securities.
“U.S. Person” means a “United States Person” within the meaning of Section 7701(a)(30) of the Code.
“U.S. Tax Compliance Certificate” has the meaning set forth in Section 5.03(f)(ii)(B)(3).
“UCC” means, with respect to any applicable jurisdictions, the Uniform Commercial Code as in effect in such jurisdiction, as may be modified from time to time.
“UK Financial Institutions” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended from time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.
“UK Resolution Authority” means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.
“Withdrawal Liability” means, at any time, any liability incurred (whether or not assessed) by any ERISA Affiliate and not yet satisfied or paid in full at such time with respect to any Multiemployer Plan pursuant to Section 4201 of ERISA.
“Withholding Agent” means the Borrower and the Administrative Agent.
“Write-Down and Conversion Powers” means, (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers.
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Unless otherwise expressly provided herein, references to organizational documents, agreements (including the Loan Documents) and other contractual instruments shall be deemed to include all subsequent amendments, restatements, extensions, supplements and other modifications thereto permitted by the Loan Documents. Any definition or reference to any Law shall include all statutory and regulatory provisions consolidating, amending, replacing, supplementing or interpreting such Law.
If any payment required to be made pursuant to the terms and conditions of any Loan Document falls due on a day which is not a Business Day, then such required payment date shall be extended to the immediately following Business Day. For purposes of determining compliance with any covenant (including the computation of any financial covenant) contained herein, Indebtedness of the Obligors and their Subsidiaries will be deemed to be equal to 100% of the outstanding principal amount thereof or payment obligations with respect thereto at the time of determination thereof, or with respect to any Hedging Agreements, the amount that
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would be payable if the agreement governing such Hedging Agreements were terminated on the date of termination.
THE COMMITMENT AND THE LOANS
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PAYMENTS OF PRINCIPAL AND INTEREST, ETC.
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PAYMENTS, ETC.
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YIELD PROTECTION, TAXES, ETC.
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Each Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower and the Administrative Agent in writing of its legal inability to do so.
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then,
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CONDITIONS
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upon which certificates shall be in form and substance reasonably satisfactory to the Administrative Agent and upon which the Administrative Agent and the Lenders may conclusively rely until they shall have received a further certificate of the Responsible Officer of any such Person cancelling or amending the prior certificate of such Person.
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REPRESENTATIONS AND WARRANTIES
The Borrower and each other Obligor hereby jointly and severally represent and warrant to the Administrative Agent and each Lender on the Closing Date and on the First Amendment Effective Date, and any other date such representation and warranty is required to be made under the Loan Documents, as set forth below:
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AFFIRMATIVE COVENANTS
Each Obligor covenants and agrees with the Administrative Agent and the Lenders that, until the Commitments have expired or been terminated and all Obligations (other than inchoate indemnification and expense reimbursement obligations for which no claim has been made) have been indefeasibly paid in full in cash:
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Each notice delivered under this Section 8.02 shall be accompanied by a statement of a Responsible Officer of the Borrower setting forth the details of the event or development requiring such notice and any action taken or proposed to be taken with respect thereto. Nothing in this Section 8.02 is intended to waive, consent to or otherwise permit any action or omission that is otherwise prohibited by this Agreement or any other Loan Document.
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. On or prior to August 28, 2023, the Borrower shall have consummated the financing transactions with the Lenders contemplated by the term sheet dated August 21, 2023.
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NEGATIVE COVENANTS
Each Obligor covenants and agrees with the Administrative Agent and the Lenders that, until the Commitments have expired or been terminated and all Obligations (other than inchoate indemnification and expense reimbursement obligations for which no claim has been made), have been indefeasibly paid in full in cash:
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(s) Indebtedness in respect of (i) performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations arising in the Ordinary Course and (ii) customary indemnification obligations in connection with Permitted Acquisitions;
(u) purchase price adjustments, indemnity payments and other Deferred Acquisition Consideration in connection with any Permitted Acquisition, in each case that are permitted pursuant to the definition of “Permitted Acquisition”.
(b) any Lien on any property or asset of such Obligor or any of its Subsidiaries existing on the date hereof and set forth on Schedule 7.13(b) and renewals and extensions thereof in connection with Permitted Refinancings of the Indebtedness being secured by such Lien; provided that (i) no such Lien (including any renewal or extension thereof) shall extend to any other property or asset of such Obligor or any of its Subsidiaries and (ii) any such Lien shall secure only those obligations which it secures on the date hereof and renewals, extensions and replacements thereof in connection with Permitted Refinancings of the Indebtedness being secured by such Lien that do not increase the outstanding principal amount thereof other than by an amount equal to unpaid interest and premiums thereon, including tender premium, and any customary and reasonable underwriting discounts, fees, commissions and expenses associated with such extension, renewal or replacement;
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provided that no Lien otherwise permitted under any of the foregoing clauses (b), (c), (d), (e) and (g) through 9.02(p) of this Section 9.02 shall apply to any Material Intellectual Property, except for Liens securing Indebtedness permitted under clause (o) of this Section 9.02.
(a) the merger, amalgamation or consolidation or liquidation of any (i) Subsidiary with or into any Obligor; provided that with respect to any such transaction involving (x) the Borrower, the Borrower must be the surviving or successor entity of such transaction and (y) any other Obligor, such Obligor must be the surviving or successor entity of such transaction (unless such transaction involves more than one Obligor, then an Obligor must be the surviving or successor entity of such transaction) or (ii) any Subsidiary that is not an Obligor with or into any other Subsidiary that is not an Obligor;
(b) the sale, lease, transfer or other disposition by (i) any Subsidiary of any or all of its property (upon voluntary liquidation or otherwise) to any Obligor or (ii) any Subsidiary that is not an Obligor of any or all of its property (upon voluntary liquidation or otherwise) to any other Subsidiary that is not an Obligor;
(c) the sale, transfer or other disposition of the Equity Interests of (i) any Subsidiary to any Obligor or (ii) any Subsidiary that is not an Obligor to any other Subsidiary that is not an Obligor;
(d) mergers, amalgamations or consolidations of any Subsidiary to effectuate an Asset Sale permitted under Section 9.09;
(e) any Subsidiary may dissolve, liquidate or wind up its affairs at any time, provided, that, such dissolution, liquidation or winding up could not reasonably be expected to have a Material Adverse Effect and all of its assets and business are transferred to an Obligor or solely in the case of a Subsidiary that is not an Obligor, another Subsidiary that is not an Obligor prior to or concurrently with such dissolution, liquidation or winding up; and
(f) in connection with any Permitted Acquisition or other Investment permitted under Section 9.05, the Borrower or any Subsidiary of the Borrower may merge into or consolidate with any other Person or permit any other Person to merge into or consolidate
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with it, so long as (i) the Person surviving such merger or consolidation with any Subsidiary shall be a direct or indirect wholly-owned Subsidiary of the Borrower, (ii) in the case of any such merger or consolidation to which the Borrower is a party, the Borrower is the surviving Person, and (iii) in the case of any such merger or consolidation to which a Subsidiary Guarantor is a party, the surviving Person is such Subsidiary Guarantor or concurrently therewith becomes a Subsidiary Guarantor.
(a) Investments (but without giving effect to the cash return provision contained in the definition thereof) outstanding on the date hereof and identified in Schedule 9.05 and any renewals, amendments and replacements thereof that do not increase the amount thereof of any such Investment, net of cash returns thereon, or require that any additional Investment be made (unless otherwise permitted hereunder);
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(l) other Investments in an aggregate amount not to exceed $10,000,000 (or the Equivalent Amount in other currencies);
(m) Investments of any Person in existence at the time such Person becomes a Subsidiary; provided such Investment was not made in connection with or anticipation of such Person becoming a Subsidiary and any modification, replacement, renewal or extension thereof;
(n) non-cash Investments in joint ventures or strategic alliances made in the Ordinary Course consisting of the non-exclusive licensing of Intellectual Property in connection with the development of technology or the providing of technical support; provided, further that no such Investment shall be with any Affiliate of an Obligor or entered into for the purposes of evading the terms and conditions of this Agreement;
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Notwithstanding anything in this Agreement to the contrary, (i) the Borrower shall not, and shall not permit any of its Subsidiaries to (x) directly or indirectly transfer, contribute, sell, assign, lease or sublease, license or sublicense, or otherwise dispose of, any Material Intellectual Property to any Person other than the Borrower or a Subsidiary Guarantor, other than pursuant to Permitted Licenses or (y) permit any Person other than the Borrower or a Subsidiary Guarantor to hold any interest in such Material Intellectual Property (other than (A) pursuant to non-exclusive intercompany licenses or Permitted Licenses or (B) as permitted by Section 9.09(g)), and (ii) no Material Intellectual Property shall be contributed as an Investment to any Subsidiary other than a Subsidiary Guarantor (other than Permitted Licenses).
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(g) Borrower may acquire (or withhold) its Equity Interests pursuant to any employee stock option or similar plan to pay withholding taxes for which Borrower is liable in respect of a current or former officer, director, employee, member of management or consultant upon such grant or award (or upon vesting or exercise thereof) and the Borrower may make deemed repurchases in connection with the exercise of stock options; or.
(h) other Restricted Payments in an aggregate amount not to exceed $2,500,000 (or the Equivalent Amount in other currencies) in any fiscal year.
Notwithstanding anything to the contrary in the foregoing, the issuance of, entry into (including any payments of premiums in connection therewith), performance of obligations under (including any payments of interest), and conversion, exercise, repurchase, redemption, settlement or early termination or cancellation of (whether in whole or in part and including by netting or set-off) (in each case, whether in cash, common stock of the Borrower or, following a merger event or other change of the common stock of Borrower, other securities or property), or the satisfaction of any condition that would permit or require any of the foregoing, any Permitted Convertible Debt, any Permitted Bond Hedge Transaction and any Permitted Warrant Transaction, in each case, shall not constitute a Restricted Payment by the Borrower.
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(k) so long as no Event of Default has occurred and is continuing, other Asset Sales with a fair market value not in excess of $5,000,000 (or the Equivalent Amount in other currencies) in the aggregate in any fiscal year;
(l) other Asset Sales not in excess of (i) $5,000,000 (or the Equivalent Amount in other currencies) in the aggregate in any fiscal year and (ii) $15,000,000 in the aggregate
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during the term of this Agreement in which any Obligor or any Subsidiary will receive cash proceeds in an amount equal to no less than seventy-five percent (75%) of the total consideration (fixed or contingent) paid or payable to such Obligor or Subsidiary, but only so long as, unless otherwise waived by Administrative Agent in its sole discretion, the Net Cash Proceeds from such Asset Sale are utilized to repay or prepay, in whole or in part, Indebtedness under and in accordance with this Agreement and the other Loan Documents;
(p) [Reserved]; and
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FINANCIAL COVENANTS
EVENTS OF DEFAULT
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(d) Certain Covenants. Any Obligor shall fail to observe or perform any covenant, condition or agreement contained in Section 8.02, 8.03 (with respect to the Borrower’s existence), 8.10, 8.11, 8.15, 8.17, 8.18, Section 9 or Section 10.
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THE ADMINISTRATIVE AGENT
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and, for each of the items set forth in clauses (i) through (iv) above, each Lender and the Borrower hereby waives and agrees not to assert (and the Borrower shall cause each other Obligor to waive and agree not to assert) any right, claim or cause of action it might have against the Administrative Agent based thereon.
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Each Lender hereby directs the Administrative Agent, and the Administrative Agent hereby agrees, upon receipt of reasonable advance notice from the Borrower, to execute and deliver or file such documents and to perform other actions reasonably necessary to release the guarantees and Liens when and as directed in this Section 12.10 and deliver to the Borrower, at the expense of the Borrower, any portion of such Collateral so released pursuant to this Section 12.10 that is in possession of the Administrative Agent. In addition, in connection with any Permitted Licenses, each Lender hereby authorizes Administrative Agent to, and at the request of the Borrower, the Administrative Agent shall, negotiate and enter into a non-disturbance agreement and other similar agreements in form and substance reasonably satisfactory to Administrative Agent.
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and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its agents and counsel, and any other amounts due to the Administrative Agent under Section 14.03.
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GUARANTY
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The Subsidiary Guarantors hereby expressly waive diligence, presentment, demand of payment, protest and all notices whatsoever, and any requirement that the Administrative Agent or any Lender exhaust any right, power or remedy or proceed against the Borrower or any other Subsidiary Guarantor under this Agreement or any other agreement or instrument referred to herein, or against any other Person under any other guarantee of, or security for, any of the Guaranteed Obligations.
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MISCELLANEOUS
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[Signature Pages Follow]
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EXHIBIT A
FORM OF NOTE
TERM LOAN NOTE
U.S. $[•] [•], 20[•]
FOR VALUE RECEIVED, the undersigned, Impel NeuroPharma,Pharmaceuticals Inc., a Delaware corporation (the “Borrower”), hereby promises to pay to [ ] (the “Lender”), in immediately available funds, the aggregate principal sum set forth above, or, if less, the aggregate unpaid principal amount of the Loan made by the Lender pursuant to Section 2.01 of the Credit Agreement referred to below, on the dates and at the times set forth in the Credit and Guaranty Agreement, dated as of March 17, 2022, among the Borrower, the Subsidiary Guarantors from time to time party thereto, the Lenders from time to time party thereto and Oaktree Fund Administration, LLC, in its capacity as administrative agent for the Lenders (in such capacity, together with its successors and assigns, the “Administrative Agent”) (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Credit Agreement”). Capitalized terms used in this Note and not otherwise defined herein shall have the meanings attributable to such terms in the Credit Agreement.
The Borrower also promises to pay interest on the unpaid principal amount of the Lender’s Loans on the dates and at the rate or rates provided for in the Credit Agreement. All payments of principal and interest shall be made in lawful money of the United States in immediately available funds to the Administrative Agent at such place and to such account or accounts as the Administrative Agent may direct from time to time by notice to the Borrower in accordance with the Credit Agreement, for the benefit of the Lender. on the date or dates and times specified in the Credit Agreement, together with interest on the principal amount of such Loans from time to time outstanding thereunder at the rates, and payable in the manner and on the dates and at the times specified in the Credit Agreement.
This Note is one of the Notes referred to in and is issued pursuant to the terms of the Credit Agreement, and this Note and the holder hereof are entitled to all the benefits and security provided for thereby or referred to therein. Reference is hereby made to the Credit Agreement for a statement of the terms and conditions governing this Note, including those related to voluntary and mandatory prepayment of this Note and acceleration of the maturity hereof upon the happening of certain stated events.
This Note is secured, on a parity basis with the other Notes, by the Security Documents. Reference is hereby made to the Security Documents for a description of the collateral thereby mortgaged, warranted, conveyed, assigned, transferred, pledged and hypothecated, the nature and extent of the security for this Note and the rights of the holder of this Note and the Administrative Agent in respect of such security and otherwise.
THIS NOTE 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.
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The Borrower hereby waives demand, presentment, protest or notice of any kind hereunder, other than notices provided for in the Loan Documents. The non-exercise by the holder hereof of any of its rights hereunder in any particular instance shall not constitute a waiver thereof in such particular or any subsequent instance.
THIS NOTE MAY NOT BE TRANSFERRED EXCEPT IN COMPLIANCE WITH THE TERMS OF THE CREDIT AGREEMENT.
[Signature Page Follows]
EXHIBIT A-2
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IN WITNESS WHEREOF, the Borrower has duly executed and delivered this Note as of the day and year first above written.
IMPEL NEUROPHARMA,PHARMACEUTICALS INC.
By: Name:
Title:
EXHIBIT A-3
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EXHIBIT B
FORM OF BORROWING NOTICE
Date : [•]
To: Oaktree Fund Administration, LLC,
as Administrative Agent
333 S. Grand Avenue, 28th Floor
Los Angeles, CA 90071
Attention: Aman Kumar
Attention: Oaktree Agency
Email: AmKumar@oaktreecapital.com
Email: oaktreeagency@alterdomus.com
Re: Borrowing under the [First Amendment to the] Credit Agreement
Ladies and Gentlemen:
The undersigned, Impel NeuroPharma,Pharmaceuticals Inc., a Delaware corporation (the “Borrower”), refers to the Credit Agreement and Guaranty, dated as of March 17, 2022 (as amended or otherwise modified from time to time, including pursuant to the First Amendment, the “Credit Agreement”), among the Borrower, the Subsidiary Guarantors from time to time party thereto, the Lenders from time to time party thereto and Oaktree Fund Administration, LLC, as administrative agent for the Lenders (in such capacity, together with its successors and assigns, the “Administrative Agent”). Capitalized terms used herein and not otherwise defined herein are used herein as defined in the Credit Agreement.
The Borrower hereby gives you irrevocable notice, pursuant to Section 2.02 of the Credit Agreement, of the Borrowing of the Loan specified herein:
Bank name:
Bank Address:
Routing Number:
Account Number:
[Signature Page Follows]
EXHIBIT B-1
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IN WITNESS WHEREOF, the Borrower has caused this Borrowing Notice to be duly executed and delivered as of the day and year first above written.
BORROWER:
IMPEL NEUROPHARMA,PHARMACEUTICALS INC.
By
Name:
Title:
EXHIBIT B-2
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EXHIBIT C
FORM OF GUARANTEE ASSUMPTION AGREEMENT
GUARANTEE ASSUMPTION AGREEMENT dated as of [DATE] (this “Agreement”) by [NAME OF ADDITIONAL SUBSIDIARY GUARANTOR], a [corporation][limited liability company] (the “Additional Subsidiary Guarantor”), under that certain Credit Agreement and Guaranty, dated as of March 17, 2022 (as amended or otherwise modified from time to time, the “Credit Agreement”), among Impel NeuroPharma,Pharmaceuticals Inc., a Delaware corporation (the “Borrower”), the Subsidiary Guarantors from time to time party thereto, the Lenders from time to time party thereto (the “Lenders”) and Oaktree Fund Administration, LLC, as administrative agent for the Lenders (in such capacity, together with its successors and assigns, the “Administrative Agent”). Capitalized terms used herein and not otherwise defined herein are used herein as defined in the Credit Agreement.
PRELIMINARY STATEMENTS
WHEREAS, pursuant to the Credit Agreement, the Lenders agreed to make an extension of credit to the Borrower upon the terms and conditions set forth in the Credit Agreement;
WHEREAS, Section 8.11 of the Credit Agreement provides that any new Subsidiary of the Borrower shall become a Subsidiary Guarantor under the Credit Agreement and a Grantor under the Security Agreement by execution and delivery of an instrument in the form of this Agreement; and
WHEREAS, the undersigned Additional Subsidiary Guarantor is executing this Agreement in accordance with the requirements of the Credit Agreement to become a Subsidiary Guarantor as consideration for Loans previously made pursuant to Section 2.01 of the Credit Agreement;
NOW, THEREFORE, the Additional Subsidiary Guarantor agrees as follows:
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THE ADDITIONAL SUBSIDIARY GUARANTOR HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE OTHER LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
[Signature Page Follows]
EXHIBIT C-3
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IN WITNESS WHEREOF, the Additional Subsidiary Guarantor has caused this Guarantee Assumption Agreement to be duly executed and delivered as of the day and year first above written.
[ADDITIONAL SUBSIDIARY GUARANTOR]
By Name:
Title:
Address for Notices:
[ ]
[ ]
Attn: [ ]
Tel.: [ ]
Fax: [ ]
Email: [ ]
EXHIBIT C-4
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EXHIBIT D
EXHIBIT D-1
FORM OF U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Lenders That Are Not Partnerships for U.S. Federal Income Tax Purposes)
Reference is made to the Credit Agreement and Guaranty, dated as of March 17, 2022 (as amended or otherwise modified from time to time, the “Credit Agreement”), among Impel NeuroPharma,Pharmaceuticals Inc., a Delaware corporation (the “Borrower”), the Subsidiary Guarantors from time to time party thereto, the Lenders from time to time party thereto and Oaktree Fund Administration, LLC, as administrative agent for the Lenders (in such capacity, together with its successors and assigns, the “Administrative Agent”).
Pursuant to the provisions of Section 5.03(f) of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the Loan(s) (as well as any Note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) it is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a “ten percent shareholder” of the Borrower within the meaning of Section 871(h)(3)(B) of the Code and (iv) it is not a “controlled foreign corporation” related to the Borrower as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished the Administrative Agent and the Borrower with a certificate of its non-U.S. Person status on IRS Form W-8BEN or IRS Form W-8BEN-E. By executing this certificate, the undersigned agrees that (1) if the information provided in this certificate changes, the undersigned shall promptly so inform the Borrower and the Administrative Agent, and (2) the undersigned shall have at all times furnished the Borrower and the Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.
[NAME OF LENDER] |
By:
|
Name: |
Title: |
Date: , 20[ ]
EXHIBIT D-1-1
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EXHIBIT D-2
FORM OF U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Participants That Are Not Partnerships for U.S. Federal Income Tax Purposes)
Reference is made to the Credit Agreement and Guaranty, dated as of March 17, 2022 (as amended or otherwise modified from time to time, the “Credit Agreement”), among Impel NeuroPharma,Pharmaceuticals Inc., a Delaware corporation (the “Borrower”), the Subsidiary Guarantors from time to time party thereto, the Lenders from time to time party thereto and Oaktree Fund Administration, LLC, as administrative agent for the Lenders (in such capacity, together with its successors and assigns, the “Administrative Agent”).
Pursuant to the provisions of Section 5.03(f) of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the participation in respect of which it is providing this certificate, (ii) it is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a “ten percent shareholder” of the Borrower within the meaning of Section 871(h)(3)(B) of the Code, and (iv) it is not a “controlled foreign corporation” related to the Borrower as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished its participating Lender with a certificate of its non-U.S. Person status on IRS Form W-8BEN or IRS Form W-8BEN-E. By executing this certificate, the undersigned agrees that (1) if the information provided in this certificate changes, the undersigned shall promptly so inform such Lender in writing, and (2) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.
[NAME OF PARTICIPANT] |
By: |
Name: |
Title: |
Date: , 20[ ]
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EXHIBIT D-3
FORM OF U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Participants That Are Partnerships for U.S. Federal Income Tax Purposes)
Reference is made to the Credit Agreement and Guaranty, dated as of March 17, 2022 (as amended or otherwise modified from time to time, the “Credit Agreement”), among Impel NeuroPharma,Pharmaceuticals Inc., a Delaware corporation (the “Borrower”), the Subsidiary Guarantors from time to time party thereto, the Lenders from time to time party thereto and Oaktree Fund Administration, LLC, as administrative agent for the Lenders (in such capacity, together with its successors and assigns, the “Administrative Agent”).
Pursuant to the provisions of Section 5.03(f) of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the participation in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such participation, (iii) with respect to such participation, neither the undersigned nor any of its direct or indirect partners/members is a “bank” extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its direct or indirect partners/members is a “ten percent shareholder” of the Borrower within the meaning of Section 871(h)(3)(B) of the Code and (v) none of its direct or indirect partners/members is a “controlled foreign corporation” related to the Borrower as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished its participating Lender with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or IRS Form W-8BEN-E or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN or IRS Form W-8BEN-E from each of such partner’s/member’s beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (1) if the information provided in this certificate changes, the undersigned shall promptly so inform such Lender and (2) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.
[NAME OF PARTICIPANT] |
By: |
Name: |
Title: |
Date: , 20[ ]
EXHIBIT D-3-1
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EXHIBIT D-4
FORM OF U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Lenders That Are Partnerships for U.S. Federal Income Tax Purposes)
Reference is made to the Credit Agreement and Guaranty, dated as of March 17, 2022 (as amended or otherwise modified from time to time, the “Credit Agreement”), among Impel NeuroPharma,Pharmaceuticals Inc., a Delaware corporation (the “Borrower”), the Subsidiary Guarantors from time to time party thereto, the Lenders from time to time party thereto and Oaktree Fund Administration, LLC, as administrative agent for the Lenders (in such capacity, together with its successors and assigns, the “Administrative Agent”).
Pursuant to the provisions of Section 5.03(f) of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the Loan(s) (as well as any Note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such Loan(s) (as well as any Note(s) evidencing such Loan(s)), (iii) with respect to the extension of credit pursuant to this Credit Agreement or any other Loan Document, neither the undersigned nor any of its direct or indirect partners/members is a “bank” extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its direct or indirect partners/members is a “ten percent shareholder” of the Borrower within the meaning of Section 871(h)(3)(B) of the Code and (v) none of its direct or indirect partners/members is a “controlled foreign corporation” related to the Borrower as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished the Administrative Agent and the Borrower with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or IRS Form W- 8BEN-E or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN or IRS Form W- 8BEN-E from each of such partner’s/member’s beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (1) if the information provided in this certificate changes, the undersigned shall promptly so inform the Borrower and the Administrative Agent, and (2) the undersigned shall have at all times furnished the Borrower and the Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.
[NAME OF LENDER] |
By: |
Name: |
Title: |
Date: , 20[ ]
EXHIBIT D-4-1
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EXHIBIT E
FORM OF COMPLIANCE CERTIFICATE
[DATE]
This certificate is delivered pursuant to Section 8.01(c) of the Credit Agreement and Guaranty, dated as of March 17, 2022 (as amended or otherwise modified from time to time, the “Credit Agreement”), among Impel NeuroPharma,Pharmaceuticals Inc., a Delaware corporation (the “Borrower”), the Subsidiary Guarantors from time to time party thereto, the Lenders from time to time party thereto and Oaktree Fund Administration, LLC, as administrative agent for the Lenders (in such capacity, together with its successors and assigns, the “Administrative Agent”). Capitalized terms used herein and not otherwise defined herein are used herein as defined in the Credit Agreement.
The undersigned, a duly authorized Responsible Officer of the Borrower having the name and title set forth below under his or her signature, hereby certifies (in his or her capacity as an officer of the Borrower and not in his or her individual capacity), on behalf of the Borrower for the benefit of the Lenders and pursuant to Section 8.01(c) of the Credit Agreement that such Responsible Officer of the Borrower is familiar with the Credit Agreement and that, in accordance with each of the following sections of the Credit Agreement, each of the following is true on the date hereof, both before and after giving effect to any Loan to be made on or before the date hereof:
EXHIBIT E-1
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[Signature Page Follows]
EXHIBIT E-2
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IN WITNESS WHEREOF, the undersigned has executed this certificate on the date first written above.
IMPEL NEUROPHARMA,PHARMACEUTICALS INC.
By
Name:
Title:
EXHIBIT E-3
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ANNEX A TO COMPLIANCE CERTIFICATE
FINANCIAL STATEMENTS
[See attached.]
EXHIBIT E-4
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ANNEX B TO COMPLIANCE CERTIFICATE
CALCULATIONS OF FINANCIAL COVENANT COMPLIANCE
| Section 10.01: Minimum Liquidity – Aggregate balance of unencumbered cash to the extent held in one or more Controlled Accounts over which the Administrative Agent has a first priority perfected security interest. |
|
I.A | Aggregate amount of cash or Permitted Cash Equivalents held in Controlled Accounts | $_________ |
I.B | Minimum Liquidity Amount | $12,500,000 |
| Is Line I.A equal to or greater than Line I.B? | Yes: In compliance; No: Not in compliance |
EXHIBIT E-5
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ANNEX C TO COMPLIANCE CERTIFICATE
DEFAULTS OR EVENTS OF DEFAULT
[IF NEEDED]
EXHIBIT E-6
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ANNEX D TO COMPLIANCE CERTIFICATE
CREATED OR ACQUIRED INTELLECTUAL PROPERTY COLLATERAL
[IF NEEDED]
EXHIBIT E-7
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EXHIBIT F
FORM OF ASSIGNMENT AND ASSUMPTION
This Assignment and Assumption (this “Assignment and Assumption”) is dated as of the Effective Date set forth below and is entered into by and between [ ] (the “Assignor”) and [ ] (the “Assignee”). Capitalized terms used herein and not otherwise defined herein are used herein as defined in the Credit Agreement and Guaranty, dated as of March 17, 2022 (as amended or otherwise modified from time to time, the “Credit Agreement”), among Impel NeuroPharma,Pharmaceuticals Inc., a Delaware corporation (the “Borrower”), the Subsidiary Guarantors from time to time party thereto, the lenders from time to time party thereto (the “Lenders”) and Oaktree Fund Administration, LLC, as administrative agent for the Lenders (in such capacity, together with its successors and assigns, the “Administrative Agent”), receipt of a copy of which is hereby acknowledged by the Assignee. The Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Assumption as if set forth herein in full.
For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by the Administrative Agent as contemplated below (i) all of the Assignor’s rights and obligations in its capacity as a Lender under the Credit Agreement and any other documents or instruments delivered pursuant thereto to the extent related to the amount and percentage interest identified below of all of such outstanding rights and obligations of the Assignor under the Credit Agreement and (ii) to the extent permitted to be assigned under applicable law, all claims, suits, causes of action and any other right of the Assignor (in its capacity as a Lender) against any Person, whether known or unknown, arising under or in connection with the Credit Agreement, any other documents or instruments delivered pursuant thereto or the loan transactions governed thereby or in any way based on or related to any of the foregoing, including, but not limited to, contract claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity related to the rights and obligations sold and assigned pursuant to clause (i) above (the rights and obligations sold and assigned by the Assignor to the Assignee pursuant to clauses (i) and (ii) above being referred to herein collectively as the “Assigned Interest”). Such sale and assignment is without recourse to the Assignor and, except as expressly provided in this Assignment and Assumption, without representation or warranty by the Assignor.
[Assignee is an Affiliate of [identify Lender]]
EXHIBIT F-1
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Assignor[s] |
Assignee[s] |
Aggregate Amount of Commitment/Loans for all Lenders |
Amount of Commitment/Loans Assigned | Percentage Assigned of Commitment/ Loans7 |
|
| $ | $ | % |
|
| $ | $ | % |
|
| $ | $ | % |
[Signature Page Follows]
EXHIBIT F-2
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Effective Date: , 20 [TO BE INSERTED BY ADMINISTRATIVE
AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]
The terms set forth in this Assignment and Assumption are hereby agreed to:
ASSIGNOR
[NAME OF ASSIGNOR]
By: Name: Title: .
ASSIGNEE
[NAME OF ASSIGNEE]
By: Name: Title:
Consented to and Accepted:
Oaktree Fund Administration, LLC,
as Administrative Agent
By:
Name: Title:
[Consented to:
Impel NeuroPharma,Pharmaceuticals Inc.
By: Name: Title: ]
EXHIBIT F-3
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ANNEX 1
STANDARD TERMS AND CONDITIONS
EXHIBIT F-4
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EXHIBIT F-5
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EXHIBIT G
FORM OF LANDLORD CONSENT
This CONSENT AGREEMENT (this “Agreement”) is entered into as of [•], 20[•], by and between [INSERT NAME OF LANDLORD] (“Landlord”), [INSERT NAME OF TENANT] (the “Tenant”) and Oaktree Fund Administration, LLC (in such capacity, together with its successors and assigns, the “Administrative Agent”), with reference to the following facts:
WHEREAS, Landlord and the Tenant have entered into that certain lease, dated as of [•], 20[•] (the “Lease”) for certain premises (the “Premises”) more fully described in Annex A;
WHEREAS, the Tenant has entered into (i) that certain Credit Agreement and Guaranty, dated as of March 17, 2022, among Impel NeuroPharma,Pharmaceuticals Inc., as borrower, the Subsidiary Guarantors from time to time party thereto [including the Tenant], the Lenders from time to time party thereto and the Administrative Agent (as amended or otherwise modified from time to time, the “Credit Agreement”) and (ii) that certain Security Agreement, dated as of March 17, 2022, among Impel NeuroPharma,Pharmaceuticals Inc., the other Grantors from time to time party thereto [including the Tenant], and the Administrative Agent (as amended or otherwise modified from time to time, the “Security Agreement”); and
WHEREAS, pursuant to the Security Agreement, the Administrative Agent has obtained a continuing security interest in, among other things, substantially all assets of the Tenant, whether now owned or hereafter acquired (the “Collateral”), including any equipment, tools, machinery, inventory, stock, goods, furniture, accounts receivable, trade fixtures and other property (together with all additions, substitutions, replacements, improvements and proceeds thereof, “Tenant’s Property”) that are now or in the future may become located or stored at the Premises, until all Obligations (other than inchoate indemnification and expense reimbursement obligations for which no claim has been made) have been paid in full in cash and the Commitment under the Credit Agreement has been terminated (the capitalized terms used above but not defined shall have the definition provided in the Credit Agreement).
NOW, THEREFORE, in consideration of the premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
EXHIBIT G-1
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EXHIBIT G-2
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EXHIBIT G-3
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[Signature Page Follows]
EXHIBIT G-4
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IN WITNESS WHEREOF, the undersigned have executed this instrument at , this day of , 20 .
[LANDLORD’S NAME], as Landlord
By:
Name:
Title:
Address for Notices:
[ ]
[ ]
Attn: [ ]
Tel.: [ ]
Fax: [ ]
Email: [ ]
Oaktree Fund Administration, LLC, as the
Administrative Agent
By:
Name:
Title:
Address for Notices:
Oaktree Fund Administration, LLC,
as Administrative Agent
[•]
[•]
Attention: [•]
Tel: [•]
Fax: [•]
Email: [•]
EXHIBIT G-5
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Acknowledged and Agreed to:
[TENANT’S NAME], as the Tenant
By Name:
Title:
EXHIBIT G-6
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ANNEX A
Description of Premises
EXHIBIT G-7
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RESERVED
EXHIBIT H-1
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Exhibit H to Credit Agreement
EXHIBIT G-2
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EXHIBIT I
FORM OF INTERCOMPANY SUBORDINATION AGREEMENT
This Intercompany Subordination Agreement, dated as of [•], 2022 (as subsequently amended or otherwise modified, this “Subordination Agreement”), is entered into by and among Impel NeuroPharma,Pharmaceuticals Inc., a Delaware corporation (the “Borrower”), certain Subsidiaries of the Borrower that are parties hereto, and certain other Subsidiaries of the Borrower that may, from time to time in the future, become parties hereto by executing and delivering a joinder agreement in substantially the form of Exhibit A hereto (any such Subsidiary being herein, individually, a “Subsidiary Party” and collectively the “Subsidiary Parties”) and Oaktree Fund Administration, LLC in its capacity as Administrative Agent for the Lenders under the Credit Agreement (as defined below) (in such capacity, together with its successors and assigns, the “Administrative Agent”).
Reference is made to that certain Credit Agreement and Guaranty, dated as of March 17, 2022 (as subsequently amended or otherwise modified, the “Credit Agreement”) among the Borrower, certain Subsidiaries of the Borrower that may be required to provide Guarantees from time to time thereunder, the Lenders from time to time party thereto and the Administrative Agent. Unless otherwise defined, capitalized terms used herein have the meanings set forth in the Credit Agreement.
This Subordination Agreement is being executed and delivered by the parties hereto pursuant to Sections 8.11(a) and 9.01 of the Credit Agreement.
One or more of the Borrower and the Subsidiary Parties (individually, an “Impel Party” and collectively, the “Impel Parties”), in their capacities as lenders (each such entity, together with its successors, assigns and transferees in such capacity, individually, a “Junior Creditor”, and, collectively, “Junior Creditors”) has made, or may from time to time make, loans or extend other financings to one or more of the Impel Parties that is an Obligor (each such Obligor in its capacity as a borrower from any Junior Creditor (together with its successors, assigns and transferees) being herein, individually, a “Debtor Obligor”, and, collectively, “Debtor Obligors”) to the extent permitted pursuant to Section 9.01 of the Credit Agreement. All such Indebtedness resulting from the making of any such loan or financing, together with all principal, interest, premiums, fees, costs, expenses, liabilities, indemnification amounts, obligations and other amounts of any type or nature owing or arising in respect thereof, is herein collectively referred to as the “Junior Obligations”.
Each of the Junior Creditors and each of the Debtor Obligors, for the benefit of the Secured Parties and each of their permitted successors, transferees and assigns, hereby irrevocably and unconditionally agree as follows:
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This Subordination Agreement shall continue to be effective or be reinstated, as the case may be, if at any time any payment of any of the Senior Obligations is rescinded or must otherwise be returned by the Administrative Agent or any other Secured Party upon the insolvency, bankruptcy or reorganization of any Obligor or otherwise, all as though such payment had not been made.
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[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties have caused this Subordination Agreement to be duly executed and delivered as of the date first above written.
IMPEL NEUROPHARMA,PHARMACEUTICALS INC.
By: Name:
Title:
EXHIBIT I-9
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[SUBSIDIARY PARTY]
By: Name:
Title:
EXHIBIT I-10
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Oaktree Fund Administration, LLC, as
the Administrative Agent
By: Name:
Title:
EXHIBIT I-11
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Exhibit A
Form of Intercompany Subordination Agreement Joinder
INTERCOMPANY SUBORDINATION AGREEMENT JOINDER, dated as of [DATE] (this “Joinder”) by [NAME OF ADDITIONAL SUBSIDIARY], a [•] [corporation][limited liability company] (the “Additional Impel Party”), under that certain Intercompany Subordination Agreement, dated as of [•], 2022 (as amended or otherwise modified from time to time, the “Subordination Agreement”), among Impel NeuroPharma,Pharmaceuticals Inc., a Delaware corporation (the “Borrower”), the Subsidiaries of the Borrower from time to time party thereto and Oaktree Fund Administration, LLC, in its capacity as Administrative Agent for the Lenders under the Credit Agreement (in such capacity, together with its successors and assigns, the “Administrative Agent”). Capitalized terms used herein and not otherwise defined herein are used herein as defined in the Subordination Agreement.
Pursuant to Section 16 of the Subordination Agreement, the Additional Impel Party hereby agrees to become a “Impel Party” for all purposes of the Subordination Agreement, assumes and agrees to perform all of the obligations of [a Debtor Obligor] [and] [Junior Creditor] thereunder and agrees that is shall comply with and be bound by the terms of the Subordination Agreement as if it had been a signatory thereto as of the date thereof.
The Additional Impel Party acknowledges that its obligations as a party to this Joinder are unconditional and are not subject to the execution of one or more Joinders by other parties. The Additional Impel Party further agrees that it has joined and is fully obligated as [a Debtor Obligor] [and] [Junior Creditor] under the Subordination Agreement.
The Additional Impel Party represents and warrants to the Administrative Agent and the other Secured Parties that this Joinder has been duly authorized, executed and delivered by it and constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, fraudulent conveyance or transfer, moratorium or similar laws affecting creditors’ rights generally, and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law.
All terms and conditions of the Subordination Agreement are hereby incorporated by reference to this Joinder as if set forth in full.
IN WITNESS WHEREOF, the Additional Impel Party has caused this Joinder to be duly executed and delivered as of the day and year first above written.
[ADDITIONAL IMPEL PARTY]
By Name:
Title:
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Exhibit J
to Credit Agreement
RESERVED
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Exhibit K
FORM OF SOLVENCY CERTIFICATE [ ], 20[]
This Solvency Certificate (this “Certificate”) is delivered pursuant to Section 6.01(g) of that certain Credit Agreement and Guaranty, dated as of March 17, 2022 (as amended or otherwise modified from time to time, the “Credit Agreement”), among Impel NeuroPharma,Pharmaceuticals Inc., a Delaware corporation (the “Borrower”), the Subsidiary Guarantors from time to time party thereto, the Lenders from time to time party thereto and Oaktree Fund Administration, LLC, as administrative agent for the Lenders (in such capacity, together with its successors and assigns, the “Administrative Agent”). Capitalized terms used herein and not otherwise defined herein are used herein as defined in the Credit Agreement.
The undersigned, the chief financial officer the Borrower, in such capacity only and not in my individual capacity (and without personal liability) hereby certifies on behalf of the Borrower as of the date hereof as follows:
The undersigned has concluded, in good faith and to the best of his or her knowledge and belief, that as of the date hereof and immediately before and after giving effect to all the transactions contemplated by the Credit Agreement and the other Loan Documents and the incurrence of any other Indebtedness contemplated thereunder, as follows:
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The undersigned understands that the Administrative Agent and the Lenders are relying on the truth and accuracy of this Certificate and that the delivery of this Certificate is a material inducement for the Administrative Agent and the Lenders to enter into the Credit Agreement and consummate the transactions contemplated thereby, and the undersigned hereby consents to such reliance.
[Signature Page Follows]
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IN WITNESS WHEREOF, the undersigned has executed this certificate on the date first written above.
IMPEL NEUROPHARMA,PHARMACEUTICALS INC.
By Name:
Title:
EXHIBIT K-3
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EXHIBIT L
FORM OF FUNDING DATE CERTIFICATE
FOR
IMPEL NEUROPHARMA,PHARMACEUTICALS INC.
[•], 20[•]
Reference is made to that certain Credit Agreement and Guaranty, dated as of March 17, 2022 (as amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), among Impel NeuroPharma,Pharmaceuticals Inc., a Delaware corporation (the “Borrower”), certain Subsidiaries of the Borrower that may be required to provide Guarantees from time to time thereunder, the lenders from time to time party thereto (each a “Lender” and collectively, the “Lenders”), and Oaktree Fund Administration, LLC, as administrative agent for the Lenders (in such capacity, the “Administrative Agent”). Unless otherwise indicated, capitalized terms used but not defined herein shall have the respective meanings set forth in the Credit Agreement.
I, [•], am a duly elected or appointed Responsible Officer of the Borrower, and do hereby certify, on behalf of the Borrower, solely in my capacity as Responsible Officer of the Borrower and not in my individual capacity, as follows:
IN WITNESS WHEREOF, I have signed this certificate on behalf of the Borrower on the date first set forth above.
IMPEL NEUROPHARMAPHARMACEUTICALS, INC. | ||
| ||
By |
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| Name: |
|
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EXHIBIT B
Schedule 1
Loans Schedule
Tranche A-1 Term Loans
Lender | Commitment |
Oaktree-TCDRS Strategic Credit, LLC | $560,100.98 |
Oaktree-Forrest Multi-Strategy, LLC | $452,782.36 |
Oaktree-TBMR Strategic Credit Fund C, LLC | $272,384.87 |
Oaktree-TBMR Strategic Credit Fund F, LLC | $426,719.27 |
Oaktree-TBMR Strategic Credit Fund G, LLC | $696,548.93 |
Oaktree-TSE 16 Strategic Credit, LLC | $701,148.30 |
INPRS Strategic Credit Holdings, LLC | $207,482.66 |
Oaktree Gilead Investment Fund AIF (Delaware), L.P. | $3,509,318.81 |
Oaktree Strategic Income II, Inc. |
|
Oaktree Specialty Lending Corporation | $13,398,473.93 |
Oaktree Strategic Credit Fund | $273,406.95 |
OSCF Lending SPV, LLC | $4,599,369.34 |
Oaktree GCP Fund Delaware Holdings, L.P. | $311,735.03 |
Oaktree Diversified Income Fund Inc. | $1,023,104.16 |
Oaktree AZ Strategic Lending Fund, L.P. | $6,665,508.26 |
Oaktree LSL Fund Holdings EURRC S.à r.l. | $9,745,041.55 |
Oaktree LSL Fund Delaware Holdings EURRC, L.P. | $3,898,221.04 |
Oaktree PRE Life Sciences Fund, L.P. | $4,362,757.34 |
Total Commitment | $51,104,103.78 |
Tranche A-2 Term Loans
Lender | Commitment |
Oaktree-TCDRS Strategic Credit, LLC | $131,523.46 |
Oaktree-Forrest Multi-Strategy, LLC | $106,322.80 |
Oaktree-TBMR Strategic Credit Fund C, LLC | $63,961.68 |
Oaktree-TBMR Strategic Credit Fund F, LLC | $100,202.64 |
Oaktree-TBMR Strategic Credit Fund G, LLC | $163,564.31 |
Oaktree-TSE 16 Strategic Credit, LLC | $164,644.33 |
INPRS Strategic Credit Holdings, LLC | $48,721.28 |
Oaktree Gilead Investment Fund AIF (Delaware), L.P. | $824,061.68 |
Oaktree Specialty Lending Corporation | $3,146,251.60 |
Oaktree Strategic Credit Fund | $1,144,230.10 |
Oaktree GCP Fund Delaware Holdings, L.P. | $73,201.93 |
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Oaktree Diversified Income Fund Inc. | $240,246.32 |
Oaktree AZ Strategic Lending Fund, L.P. | $1,565,201.18 |
Oaktree Loan Acquisition Fund, L.P. | $572,070.00 |
Oaktree LSL Fund Holdings EURRC S.à r.l. | $1,715,945.65 |
Oaktree LSL Fund Delaware Holdings EURRC, L.P. | $915,384.09 |
Oaktree PRE Life Sciences Fund, L.P. | $1,024,466.95 |
Total Commitment | $12,000,000.00 |
EXHIBIT B-3
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