Exhibit 10.29
SECURITY AGREEMENT
among
BIORA THERAPEUTICS, INC.,
as Issuer,
THE GUARANTORS PARTY HERETO FROM TIME TO TIME,
as Guarantors
and
GLAS TRUST COMPANY LLC
as Collateral Agent
Dated as of December 19, 2023
TABLE OF CONTENTS
Page
Article I DEFINITIONS AND INTERPRETATION 1
SECTION 1.1 Definitions 1
SECTION 1.2 Interpretation 6
SECTION 1.3 Resolution of Drafting Ambiguities 6
Article II GRANT OF SECURITY AND SECURED OBLIGATIONS 7
SECTION 2.1 Grant of Security Interest 7
SECTION 2.2 Filings 8
Article III PERFECTION; SUPPLEMENTS; FURTHER ASSURANCES; USE OF PLEDGED COLLATERAL 9
SECTION 3.1 Delivery of Certificated Securities Collateral 9
SECTION 3.2 Perfection of Other Securities Collateral 10
SECTION 3.3 Financing Statements and Other Filings; Maintenance of Perfected Security Interest 11
SECTION 3.4 Other Actions 11
Article IV REPRESENTATIONS, WARRANTIES AND COVENANTS 13
SECTION 4.1 Title; Consent 13
SECTION 4.2 Validity of Security Interest 13
SECTION 4.3 Defense of Claims 14
SECTION 4.4 Other Financing Statements 14
SECTION 4.5 Chief Executive Office; Change of Name; Jurisdiction of Organization, etc. 14
SECTION 4.6 Due Authorization and Issuance 15
SECTION 4.7 Pledged Collateral 15
SECTION 4.8 Insurance 15
Article V CERTAIN PROVISIONS CONCERNING SECURITIES COLLATERAL 15
SECTION 5.1 Voting Rights; Distributions; etc. 15
Article VI CERTAIN PROVISIONS CONCERNING INTELLECTUAL PROPERTY COLLATERAL 17
SECTION 6.1 Grant of License 17
SECTION 6.2 Scheduled Intellectual Property 17
SECTION 6.3 No Violations or Proceedings 18
SECTION 6.4 Protection of Collateral Agent’s Security 18
SECTION 6.5 After-Acquired Property 18
SECTION 6.6 Litigation 19
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TABLE OF CONTENTS (continued)
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Article VII MAINTENANCE OF RECORDS 19
Article VIII REMEDIES 19
SECTION 8.1 Remedies 19
SECTION 8.2 Notice of Sale 21
SECTION 8.3 Waiver of Claims; Other Waivers; Marshalling 21
SECTION 8.4 Standards for Exercising Rights and Remedies 22
SECTION 8.5 Certain Sales of Pledged Collateral 23
SECTION 8.6 No Waiver; Cumulative Remedies 24
SECTION 8.7 Certain Additional Actions Regarding Intellectual Property 24
Article IX APPLICATION OF PROCEEDS 25
Article X MISCELLANEOUS 25
SECTION 10.1 Collateral Agent Appointed Attorney-in-Fact 25
SECTION 10.2 Continuing Security Interest 25
SECTION 10.3 Termination; Release 25
SECTION 10.4 Modification in Writing 26
SECTION 10.5 Notices 26
SECTION 10.6 Governing Law and Consent to Jurisdiction; Waiver of Jury Trial 26
SECTION 10.7 Severability of Provisions 26
SECTION 10.8 Execution in Counterparts 26
SECTION 10.9 Business Days 27
SECTION 10.10 No Claims Against Collateral Agent 27
SECTION 10.11 Obligations Absolute 27
SECTION 10.12 Concerning the Collateral Agent 28
SCHEDULES
Schedule 1 Commercial Tort Claims
Schedule 2 Letters of Credit
Schedule 3 Filing Offices
Schedule 4 Pledged Securities
Schedule 5 Intellectual Property
Schedule 6 Instruments and Tangible Chattel Paper
EXHIBITS
Exhibit 1 Form of Joinder Agreement
Exhibit 2 Form of Copyright Security Agreement
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TABLE OF CONTENTS (continued)
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Exhibit 3 Form of Patent Security Agreement
Exhibit 4 Form of Trademark Security Agreement
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SECURITY AGREEMENT
This SECURITY AGREEMENT, dated as of December 19, 2023 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time in accordance with the provisions hereof, including by one or more Joinder Agreements, or otherwise, this “Agreement”), is made by and among Biora Therapeutics, Inc., a Delaware corporation (the “Issuer”), and the Subsidiaries of the Issuer from time to time party hereto as guarantors (collectively, the “Guarantors”), as pledgors (the Issuer, together with the Guarantors, in such capacities, and together with any successors in such capacity, the “Pledgors” and each, a “Pledgor”), and GLAS Trust Company LLC, a limited liability company organized and existing under the laws of the State of New Hampshire, solely in its capacity as Collateral Agent pursuant to the Indenture, (in such capacity, and together with any successors in such capacity, the “Collateral Agent ”).
R E C I T A L S:
A G R E E M E N T:
NOW THEREFORE, in consideration of the foregoing premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each Pledgor and the Collateral Agent hereby agree as follows:
DEFINITIONS AND INTERPRETATION
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“Agreement” shall have the meaning assigned to such term in the preamble hereof.
“CFC” shall mean a “controlled foreign corporation” within the meaning of section 957(a) of the Code.
“Code” shall mean the Internal Revenue Code of 1986, as amended.
“Collateral Agent ” shall have the meaning assigned to such term in the preamble hereof.
“Control” means with respect to any asset, right or property with respect to which a security interest therein is perfected by a Secured Party’s having “control” thereof (whether pursuant to the terms of an agreement or through the existence of certain facts and circumstances), that the intended Secured Party has “control” of such asset, right, or property as contemplated in the UCC.
“Control Agreement” means, with respect to any deposit account, any securities account, commodity account, securities entitlement or commodity contract, an agreement, in form and substance satisfactory to the Collateral Agent and the Required Holders, among the Collateral Agent , the financial institution or other Person at which such account is maintained or with which such entitlement or contract is carried and the Pledgor maintaining such account, effective to grant “control” (as defined under the applicable UCC) over such account to the Collateral Agent.
“Copyright Security Agreement” shall mean an agreement substantially in the form annexed hereto as Exhibit 2.
“Copyrights” shall mean, collectively (a) all copyrights, whether registered or unregistered, and whether published or unpublished, held pursuant to the laws of the United States, any State thereof or any other country, multi-national registry, or any political subdivision thereof; (b) registrations, applications, recordings and proceedings in the United States Copyright Office or in any similar office or agency of the United States, any State thereof or any other country, including the copyright registrations and applications listed in Schedule 5; (c) any continuations, renewals or extensions thereof; (d) any registrations to be issued in any pending applications, and shall include any right or interest in and to work protectable by any of the foregoing which are presently or in the future owned, created or authorized (as a work for hire for the benefit of any Pledgor) or acquired by any Pledgor, in whole or in part; (e) prior versions of works covered by copyright and all works based upon, derived from or incorporating such works; (f) income, royalties, damages, claims and payments now and hereafter due and/or payable with respect to copyrights, including, without limitation, damages, claims and recoveries for past, present or future infringement; (g) rights to sue for past, present and future
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infringements of any copyright; and (h) any other rights corresponding to any of the foregoing rights throughout the world.
“Distributions” shall mean, collectively all dividends, cash, options, warrants, rights, instruments, distributions, returns of capital or principal, income, interest, profits and other property, interests (debt or equity) or proceeds, including as a result of a split, revision, reclassification or other like change of the Pledged Securities, from time to time received, receivable or otherwise distributed to the Pledgor in respect of or in exchange for any or all of the Pledged Securities or Pledged Intercompany Note.
“Excluded Account” means any deposit account (a) specifically and exclusively used for payroll, payroll taxes and other employee wage and benefit payments to or for the benefit of any Pledgor’s employees, (b) which is used as an escrow account or as a fiduciary or trust account for the benefit of unaffiliated third parties, (c) which is a zero balance deposit account, or (d) which has deposits at any time in an aggregate amount not in excess of $100,000 for any one account and $250,000 in the aggregate for all such accounts excluded under this clause (e).
“Excluded Assets” shall mean (A) any fee-owned real property located outside the United States and any leasehold interest in real property located outside the United States, (B) all motor vehicles and other assets covered by a certificate of title (except to the extent a security interest therein can be perfected by the filing of a UCC financing statement or the equivalent under other applicable law), (C) any lease, license or agreement or any property subject to a purchase money security interest or capital lease, in each case, to the extent that a grant of a security interest therein would violate or invalidate such lease, license or agreement or purchase money or capital lease arrangement or create a right of termination in favor of any other party thereto (other than any Pledgor) after giving effect to the applicable anti-assignment provisions of the UCC or other applicable law, in each case, other than the proceeds and receivables thereof and only, in each case, to the extent, and only for so long as any such limitation or restriction set forth in this clause (C) is not terminated or rendered unenforceable or otherwise deemed ineffective by the UCC, any other laws (including bankruptcy, insolvency or similar laws), or principles of equity, and, to the extent severable, the security interest granted hereunder shall attach immediately to any portion of such assets not subject to such limitation or restriction; provided that immediately upon the ineffectiveness, lapse or termination of any such limitation or restriction, the Collateral shall include, and such Pledgor shall be deemed to have granted a security interest in, such assets as if such provision had never been in effect, (D) any Property where the cost of obtaining a security interest in, or perfection of, such assets exceeds the practical benefit to the Holders afforded thereby as reasonably determined by the Company and demonstrated to the satisfaction of the Required Holders in their sole discretion, (E) any intent-to-use application for registration of a Trademark prior to the filing of a “Statement of Use” or an “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely during the period, if any, in which, the grant of a security interest therein would impair the validity or enforceability of such intent-to-use Trademark application or any registration issuing therefrom under applicable federal law, (F) the voting Capital Stock of any Foreign Subsidiary or FSHCO in excess of 65% of each class of outstanding voting Capital Stock of such Foreign Subsidiary or FSHCO, solely to the extent that such pledge in excess of 65% would reasonably be expected to result in material adverse tax consequences to the Company and its Subsidiaries as reasonably determined by the Company and demonstrated to the satisfaction of the Required Holders in their
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sole discretion, and (G) any assets the grant of a security interest in which would be prohibited by applicable law but only, in each case, to the extent, and only for so long as, such prohibition is not terminated or rendered unenforceable or otherwise deemed ineffective by the UCC, any other laws (including bankruptcy, insolvency or similar laws), or principles of equity, and, to the extent severable, the security interest granted hereunder shall attach immediately to any portion of such assets that do not result in such prohibition; provided that immediately upon the ineffectiveness, lapse or termination of any such prohibition, the Collateral shall include, and such Pledgor shall be deemed to have granted a security interest in, such assets as if such provision had never been in effect.
“FSHCO” shall mean any Subsidiary substantially all of the assets of which (directly or through one or more disregarded entities for U.S. federal income tax purposes) consist of shares of Capital Stock (including, for this purpose, any debt or other instrument treated as equity for U.S. federal income tax purposes) of one or more Foreign Subsidiaries that are CFCs.
“Guarantors” shall have the meaning assigned to such term in the preamble hereof.
“Indenture” shall have the meaning assigned to such term in the recitals hereof.
“Intellectual Property” shall mean, collectively, all domestic, foreign and multi-national intellectual property rights of any kind, whether now or hereafter existing, including, without limitation, all Patents, Trademarks, Copyrights and Trade Secrets, together with any and all (i) rights and privileges arising under applicable law with respect to the use of any of the foregoing, (ii) rights to proceeds, income, fees, royalties, damages and payments now and hereafter due and/or payable thereunder and with respect thereto, including damages, claims and payments for past, present or future infringements, misappropriations, dilutions or other violations thereof, (iii) rights to sue or otherwise recover for past, present and future infringements, misappropriations, dilutions or other violations thereof, (iv) regulatory filings, (v) rights in computer programs (whether in source code, object code, or other form), algorithms, databases, compilations and data, technology supporting the foregoing, and all documentation, including user manuals and training materials, related to any of the foregoing, (vi) rights of publicity, privacy, and rights to personal information, (vii) all rights in the foregoing and in other similar intangible assets, (viii) all applications and registrations for the foregoing, and (ix) rights corresponding thereto throughout the world.
“Intellectual Property Collateral” shall mean, with respect to each Pledgor, all Intellectual Property of such Pledgor (including rights under Licenses), whether now owned or held, or hereafter acquired or created by or assigned to such Pledgor; provided, that notwithstanding any of the foregoing, Intellectual Property Collateral shall not include any Excluded Assets.
“Issuer” shall have the meaning assigned to such term in the preamble hereof.
“Joinder Agreement” shall mean an agreement substantially in the form annexed hereto as Exhibit 1.
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“Licenses” shall mean all licenses, covenants not to sue and any other agreement granting any right with respect to any Intellectual Property (whether a Pledgor is the grantor or grantee thereunder).
“Material Adverse Effect” shall mean a material adverse effect on (a) the business affairs, operations or results of operations, or condition (financial or otherwise) of Pledgor and its Subsidiaries, taken as a whole, (b) the ability of the Pledgor to perform its payment obligations under the Notes Documents or (c) the rights and remedies of the Collateral Agent and the other Secured Parties under the Indenture or the other Notes Documents, taken as a whole.
“Material IP Collateral” shall mean any Intellectual Property Collateral that is material to the business of Pledgor and its Subsidiaries, taken as a whole.
“Order” shall mean any judgment, decree, verdict, order, consent order, consent decree, writ, declaration or injunction.
“Organization Documents” mean, collectively, with respect to any Person, (a) in the case of any corporation, the certificate of incorporation and by-laws (or similar constitutive documents) of such Person, (b) in the case of any limited liability company, the certificate of formation and operating agreement (or similar constitutive documents) of such Person, (c) in the case of any limited partnership, the certificate of formation and limited partnership agreement (or similar constitutive documents) of such Person, (d) in the case of any general partnership, the partnership agreement (or similar constitutive document) of such Person and (e) in any other case, the functional equivalent of the foregoing.
“Patent Security Agreement” shall mean an agreement substantially in the form annexed hereto as Exhibit 3.
“Patents” shall mean, collectively, all patents and all patent registrations and applications issued or applied for in the United States or any other country, multi-national registry, or any political subdivision thereof, including those listed in Schedule 5, together with any and all (i) inventions and improvements described and claimed therein, (ii) reissues, substitutions, reexaminations, divisions, renewals, extensions, continuations and continuations-in-part thereof and amendments thereto, (iii) all petty patents, divisionals and patents of addition, (iv) all patents to issue in any such applications, (v) income, royalties, damages, claims and payments now and hereafter due and/or payable with respect to patents, including, without limitation, damages, claims and recoveries for past, present or future infringement, and (vi) rights to sue for past, present and future infringements of any patent.
“Pledged Collateral” shall have the meaning assigned to such term in Section 2.1.
“Pledged Debt” shall have the meaning assigned to such term in Section 3.4(a).
“Pledged Intercompany Note” shall mean a global intercompany note in substantially the form attached hereto as Exhibit 5, evidencing all intercompany Indebtedness owed to any Pledgor, as may be updated from time to time.
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“Pledged Interests” shall mean, collectively, with respect to each Pledgor, (i) all membership, partnership or other Capital Stock (other than in a corporation), as applicable, now or hereafter owned by such Pledgor at any time including without limitation, those of each issuer described in Schedule 4 hereto, together with all rights, privileges, authority and powers of such Pledgor in and to each such issuer or under any Organization Document of each such issuer and (ii) the certificates, instruments and agreements representing such membership, partnership or other interests and any and all interest of such Pledgor in the entries on the books of any securities intermediary pertaining to such membership, partnership or other Capital Stock; provided, that notwithstanding any of the foregoing, Pledged Interests shall not include any Excluded Assets.
“Pledged Securities” shall mean, collectively, the Pledged Interests and the Pledged Shares; provided, that notwithstanding any of the foregoing, Pledged Securities shall not include any Excluded Assets.
“Pledged Shares” shall mean, collectively, with respect to each Pledgor, (i) the issued and outstanding shares of Capital Stock, whether certificated or uncertificated, now or hereafter owned by such Pledgor at any time, together with all rights, privileges, authority and powers of such Pledgor relating to such interests in each such issuer or under any Organization Document of each such issuer and (ii) the certificates, instruments and agreements representing such shares of Capital Stock and any and all interest of such Pledgor in the entries on the books of the issuer of such shares or of any financial intermediary pertaining to the Pledged Shares; provided, that notwithstanding any of the foregoing, Pledged Shares shall not include any Excluded Assets.
“Pledgor” shall have the meaning assigned to such term in the preamble hereof.
“Registered Organization” is any “registered organization” as defined in the Code with such additions to such term as may hereafter be made.
“Secured Parties” shall mean the Collateral Agent, the Trustee, the Note Agents and the Holders of Notes.
“Securities Collateral” shall mean, collectively, the Pledged Securities, the Pledged Intercompany Note and the Distributions; provided, that notwithstanding any of the foregoing, Securities Collateral shall not include any Excluded Assets.
“Trade Secrets” shall mean, collectively, all trade secrets and all other confidential or proprietary information, data and know-how, whether or not reduced to a writing or other tangible form.
“Trademark Security Agreement” shall mean an agreement substantially in the form annexed hereto as Exhibit 4.
“Trademarks” shall mean, collectively, all trademarks (including service marks), slogans, logos, certification marks, trade dress, uniform resource locations (URLs), domain names, corporate names, trade names, or other indicia of source, whether registered or unregistered, and all registrations and applications for the foregoing (whether statutory or common law and whether registered or applied for in the United States or any other country,
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multi-national registry, or any political subdivision thereof), including those trademark and service mark registrations and applications listed in Schedule 5 together with any and all (i) goodwill of the business connected with the use thereof and symbolized thereby, (ii) income, royalties, damages, claims and payments now and hereafter due and/or payable with respect thereto, including, without limitation, damages, claims and recoveries for past, present or future infringement, (iii) rights to sue for past, present and future infringements thereof and (iv) extensions and renewals thereof and amendments thereto.
“UCC” shall mean the Uniform Commercial Code as in effect on the date hereof in the State of New York; provided, however, that if by reason of mandatory provisions of applicable law, any or all of the attachment, perfection or priority of the Collateral Agent’s and the other Secured Parties’ security interest in any item or portion of the Pledged Collateral is governed by the Uniform Commercial Code in a jurisdiction other than the State of New York, the term “UCC” shall mean the Uniform Commercial Code as in effect on the date hereof in such other jurisdiction for purposes of the provisions hereof relating to such attachment, perfection or priority and for purposes of definitions relating to such provisions.
“Uncertificated Security” shall have the meaning assigned to such term in Section 3.2.
“USCO” means the United States Copyright Office.
“USPTO” means the United States Patent and Trademark Office.
GRANT OF SECURITY AND SECURED OBLIGATIONS
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Notwithstanding anything to the contrary contained in clauses (i) through (xiv) above or any other provision of this Agreement or any other Notes Document, the security interest created by this Agreement shall not extend to, and the term “Pledged Collateral” and “Intellectual Property Collateral” shall not include, any Excluded Assets.
Notwithstanding anything to the contrary contained herein, immediately upon any Property of a Pledgor ceasing to constitute Excluded Assets, the Pledged Collateral shall include, and the Issuer and the other Pledgors, as applicable, shall be deemed to have granted a security interest in, such Property.
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PERFECTION; SUPPLEMENTS; FURTHER ASSURANCES;
USE OF PLEDGED COLLATERAL
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The Collateral Agent shall have the right (but not the obligation), at any time upon the occurrence and during the continuance of any Event of Default, upon prior written notice (which may be concurrent) to Issuer, to endorse, assign or otherwise transfer to or to register in the name of the Collateral Agent or any of its nominees or endorse for negotiation any or all of such Pledged Securities or Pledged Intercompany Note, without any indication that such Pledged Securities or Pledged Intercompany Note are subject to the security interest hereunder. In addition, the Collateral Agent shall have the right (but not the obligation) at any time upon the occurrence and during the continuance of any Event of Default to exchange certificates or Instruments representing or evidencing any Pledged Securities or the Pledged Intercompany Note for certificates or Instruments of smaller or larger denominations for any purpose consistent with this Agreement.
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If any of the Pledged Securities is or shall become evidenced or represented by an Uncertificated Security, such Pledgor shall cause the issuer thereof (or use commercially reasonable efforts to cause if the issuer is not an Affiliate of such Pledgor) either (i) to register the Collateral Agent as the registered owner of such Uncertificated Security, upon original issue or registration of transfer, or (ii) to agree in writing with such Pledgor and the Collateral Agent that such issuer will comply with instructions with respect to such Uncertificated Security originated by the Collateral Agent without further consent of such Pledgor.
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REPRESENTATIONS, WARRANTIES AND COVENANTS
Each Pledgor represents, warrants and covenants as follows:
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(a) any Intellectual Property Collateral owned by any Pledgor is valid, subsisting, unexpired and enforceable and has not been abandoned or adjudged invalid or unenforceable, in whole or in part, except Intellectual Property Collateral that is not Material IP Collateral;
(b) each Pledgor is the sole and exclusive owner of the entire and unencumbered right, title and interest in and to all Intellectual Property Collateral that is owned or purported to be owned (solely or jointly with others) by such Pledgor and no claim is pending that the use of such Intellectual Property Collateral by such Pledgor does or may, conflict with, infringe, misappropriate, dilute, misuse or otherwise violate, any of the rights of any third party in any material respect with respect to such Intellectual Property Collateral;
(c) each Pledgor has made all necessary filings and recordations to protect its interest in any Intellectual Property Collateral owned by such Pledgor to the extent such filing or recordation is necessary for the conduct of the business substantially in the manner presently conducted, including recordations of all of its interests in the owned Patent Collateral and Trademark Collateral in the USPTO or foreign equivalent, and its claims to the owned Copyright Collateral in the United States Copyright Office (the “USCO”) or foreign equivalent, and, to the extent necessary, has used proper statutory notice in connection with its use of any Patent, Trademark and Copyright in any of Trade Secrets that constitute Intellectual Property Collateral;
(d) each Pledgor has taken all commercially reasonable steps to safeguard its Trade Secrets that constitute Intellectual Property Collateral and, to the knowledge of each Pledgor, (i) none of the Trade Secrets that constitute Intellectual Property Collateral of such Pledgor has been used, divulged, disclosed or appropriated for the benefit of any other Person other than a Pledgor; (ii) no employee, independent contractor or agent of such Pledgor has, to the knowledge of any Pledgor, misappropriated any Trade Secrets of any other Person in the course of the performance of such Person’s duties as an employee, independent contractor or agent of such Pledgor; and (iii) no employee, independent contractor or agent of such Pledgor is in default or breach of any term of any employment agreement, non-disclosure agreement, assignment of inventions agreement or similar agreement or contract relating in any way to the protection, ownership, development, use or transfer of such Pledgor’s Trade Secrets that constitute Intellectual Property Collateral;
(e) no Pledgor has entered into any or bound by any written settlement or consents, covenant not to sue, nonassertion assurance, or release that adversely affects its rights in any material respect to own or use any of the Intellectual Property Collateral;
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(f) each Pledgor has not granted a Lien on any Intellectual Property Collateral owned by such Pledgor that has not been terminated or released except Permitted Liens;
(g) each Pledgor has executed and delivered to the Administrative Agent Intellectual Property Collateral security agreements to be filed in the USPTO or the USCO or in any similar office or agency of the United States for all applications and registrations for all Copyrights, Patents and Trademarks owned by such Pledgor constituting Intellectual Property Collateral;
(h) each Pledgor (i) uses commercially reasonable efforts (and in any event, efforts no less than generally accepted industry practices) designed to ensure the quality of the manufacture, distribution and sale of all products sold by the Pledgor and in the provision of all services rendered under or in connection with all Trademarks and (ii) has taken all actions necessary to ensure that all licensees of the Trademarks owned by such Pledgor use such adequate standards of quality;
(i) the consummation of the transactions contemplated by the Indenture and this Agreement will not result in the termination or impairment of any Intellectual Property Collateral; and
(j) such Pledgor owns or is entitled to use by license, lease or other agreement, all Patents, Trademarks, Trade Secrets, Copyrights, mask works, licenses, technology, know-how, processes and rights with respect to any of the foregoing as necessary to conduct the business and operations of such Pledgor substantially in the manner presently conducted and, at minimum, in accordance with industry standard business practices.
CERTAIN PROVISIONS CONCERNING SECURITIES COLLATERAL
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CERTAIN PROVISIONS CONCERNING INTELLECTUAL
PROPERTY COLLATERAL
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MAINTENANCE OF RECORDS
SECTION 7.1 Each Pledgor shall, at such Pledgor’s sole cost and expense, upon the Collateral Agent’s demand (acting at the direction of the Trustee (acting at the direction of the Required Holders) or the Required Holders) made at any time after the occurrence and during the continuance of any Event of Default, deliver all tangible evidence of Accounts, including all documents evidencing Accounts and any books and records relating thereto to the Collateral Agent or to its representatives (copies of which evidence and books and records may be retained by such Pledgor). Upon the occurrence and during the continuance of any Event of Default, the Collateral Agent may (but shall not be obligated to) transfer a full and complete copy of such Pledgor’s books, records, credit information, reports, memoranda and all other writings relating to the Accounts to and for the use by any person that has acquired or is contemplating acquisition of an interest in the Accounts or the Collateral Agent’s security interest therein without the consent of any Pledgor; provided, that the Collateral Agent agrees to use reasonable efforts to provide prior written notice of any such transfer to such Pledgor.
REMEDIES
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APPLICATION OF PROCEEDS
The proceeds received by the Collateral Agent in respect of any sale of, collection from, or other realization upon all or any part of the Pledged Collateral pursuant to the exercise by the Collateral Agent of its remedies shall, together with any other sums then held by the Collateral Agent, be applied in accordance with Section 7.11 of the Indenture.
MISCELLANEOUS
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IN WITNESS WHEREOF, the Pledgors and the Collateral Agent have caused this Agreement to be duly executed and delivered by their duly authorized officers as of the date first above written.
BIORA THERAPEUTICS, INC.,
as Pledgor
By: /s/ Eric d’Esparbes_________________
Name: Eric d’Esparbes
Title: Chief Financial Officer
Signature Page to Security Agreement
GLAS TRUST COMPANY LLC, not in its individual capacity but solely in its capacity as Collateral Agent
By: /s/ Katie Fischer___________________
Name: Katie Fischer
Title: Vice President
Signature Page to Security Agreement