Exhibit 10.1
AMENDED AND RESTATED LOAN agreement
This Amended and Restated Loan Agreement, dated as of June 20, 2023 (this “Agreement”), is between Celularity Inc., a Delaware corporation (the “Borrower”), and Resorts World Inc Pte Ltd, a company incorporated in Singapore (the “Lender” and, together with the Borrower, the “Parties” and each, a “Party”).
agreement:
Pursuant to that certain Loan Agreement (the “Existing Loan Agreement”), dated as of May 16, 2023 (the “Initial Closing Date”), between the Borrower and the Lender, the Lender extended an initial loan to the Borrower in the aggregate principal amount of $6,000,000 (the “Initial Loan”).
The Parties wish to amend and restate the Existing Loan Agreement in its entirety but not as a novation on the terms and subject to the conditions hereinafter set forth.
In consideration of the foregoing and the mutual agreements contained in this Agreement, the receipt and sufficiency of which are acknowledged, the Parties hereby agree to amend and restate the Existing Loan Agreement in its entirety (but not as a novation) as follows:
This Agreement is to be interpreted in accordance with the rules of construction set forth on Annex A. Capitalized terms used in this Agreement and not otherwise defined have the meanings set forth for such terms on Annex A. All annexes, schedules and exhibits to this Agreement are deemed to be a part of this Agreement.
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The Borrower makes the following representations to the Lender, which representations survive the execution and delivery of this Agreement:
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Until the Obligations (other than inchoate indemnity obligations and expense reimbursement obligations) have been indefeasibly repaid in full:
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Until the Obligations (other than inchoate indemnity obligations and expense reimbursement obligations) have been indefeasibly repaid in full:
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Subject to the delivery of the applicable Assignment and Assumption to the Borrower, from and after the effective date specified in each Assignment and Assumption, the assignee thereunder is a party to this Agreement and, to the extent of the interest assigned by such Assignment and Assumption, has the rights and obligations of the Lender under this Agreement, and the assigning Lender thereunder, to the extent of the interest assigned by such Assignment and Assumption, is released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, the Lender ceases to be a Party) but continues to be entitled to the benefits of Sections 2.9 and 7.9 with respect to facts and circumstances occurring prior to the effective date of such assignment. Any assignment or transfer by the Lender of rights or obligations under this Agreement that does not comply with this paragraph are treated for purposes of this Agreement as a sale by the Lender of a participation in such rights and obligations.
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(Signature page(s) follow)
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The Parties have executed and delivered this Agreement as of the date first above written.
CELULARITY INC.
By:____________________
Name:
Title:
Lender:
Resorts World Inc Pte Ltd
By:__________________
Name:
Title:
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annex a
Rules of Construction
1. Definitions. Terms defined in the UCC that are not otherwise defined in this Agreement are used herein as defined in the UCC. As used in this Agreement, the plural includes the singular and the singular includes the plural. As used in this Agreement, the following terms have the following meanings:
“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 specified Person, where “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise, and “controlled” has the meaning correlative thereto.
“Agreement” has the meaning set forth for such term in the introduction.
“Assignment and Assumption” means an assignment and assumption entered into by the Lender and an assignee (with the consent of any party whose consent is required by Section 7.7), and accepted by the Borrower, in a form approved by the Borrower.
“Borrower” has the meaning set forth for such term in the introduction.
“Business Day” means any day that is not a Saturday, Sunday or other day that is a legal holiday under the laws of the State of New York or Singapore or is a day on which banking institutions in such state are authorized or required by law to close
“Change of Control” means an event or series of events by which any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or its Subsidiaries, and any person or entity 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 Securities Exchange Act of 1934, except that a person or group shall be deemed to have “beneficial ownership” of all securities 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 more than 50% of the equity interests of the Borrower entitled to vote for members of the board of directors or equivalent governing body of the Borrower on a fully-diluted basis (and taking into account all such securities that such person or group has the right to acquire pursuant to any option right).
“Closing Date” means the date of this Agreement.
“Collateral” means, all of the Borrower’s right, title and interest in and to the following personal property:
(a) All goods, accounts (including health-care receivables), equipment, inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, general intangibles, intellectual property, commercial tort claims, documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, certificates of deposit, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), securities, securities accounts, securities entitlements and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and
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(b) All the Borrower’s books relating to the foregoing, and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoing.
Notwithstanding anything to the contrary herein, the Collateral shall not include any Excluded Assets.
“Debtor Relief Laws” means the United States Bankruptcy Code and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws of the United States or other applicable jurisdictions from time to time in effect.
“Default” means any event or condition that constitutes an Event of Default or that, with the giving of any notice, the passage of time, or both, would be an Event of Default.
“Dollar” and “$” mean lawful money of the United States.
“Environmental Laws” means any and all federal, state, local, and foreign statutes, laws, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants, franchises, licenses, agreements or governmental restrictions, including all common law, relating to pollution or the protection of health, safety or the environment or the release of any materials into the environment, including those related to hazardous materials, air emissions, discharges to waste or public systems and health and safety matters.
“ERISA” means the Employee Retirement Income Security Act of 1974.
“Event of Default” has the meaning set forth for such term in Section 6.1.
“Excluded Accounts” means (a) any deposit account, securities account, commodities account or other account of the Borrower (and all cash, cash equivalents and other securities or investments held therein) to the extent solely and exclusively used (i) for payment of payroll, payroll taxes, employee benefits, and other employee wage and benefit payments to or for the benefit of employees, (ii) as escrow, fiduciary, withholding, tax payment or trust accounts, or (iii) to hold any cash or cash equivalents subject to a Permitted Lien or cash collateral permitted to be deposited with a Person holding a Permitted Lien, (b) any deposit account that is a zero balance account, and (c) deposit accounts, securities accounts or commodities accounts of the Borrower that do not hold more than $150,000 for any one account or $250,000 (or the equivalent thereof) in the aggregate at any time.
“Excluded Assets” means (a) voting equity interests in a controlled foreign corporation (as defined in the United States Internal Revenue Code) to the extent such security interest could reasonably cause the Borrower to suffer adverse tax consequences, (b) any general intangible or instrument solely to the extent the grant of a security interest in such general intangible or instrument is prohibited by the terms of such general intangible or instrument and would result in the termination of such general intangible or instrument and such prohibition is not rendered ineffective pursuant to the UCC or any other applicable law, (c) any “intent to use” trademark applications for which a statement of use has not been filed and accepted with the United States Patent and Trademark Office, (d) Excluded Accounts, and (e) any personal property or other assets relating to or used in connection with the Borrower’s commercial biomaterials and biobanking businesses.
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“GAAP” means United States generally accepted accounting principles as in effect as of the date of determination thereof.
“Governmental Authority” means the government of the United States or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank).
“Indebtedness” means, as to any Person at a particular time, without duplication, all of the following, whether or not included as indebtedness or liabilities in accordance with GAAP:
For all purposes hereof, the Indebtedness of any Person includes the Indebtedness of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company) in which such Person is a general partner or a joint venturer, unless such Indebtedness is expressly made non-recourse to such Person. Notwithstanding anything herein to the contrary, all obligations that are or would have been treated as operating leases for purposes of GAAP prior to the issuance by the Financial Accounting Standards Board on February 25, 2016 of an Accounting Standards Update (the “ASU”) shall continue to be accounted for as operating leases for purposes of all financial definitions and calculations for purposes of the Loan Documents (whether or not such operating lease obligations were in effect on such date) notwithstanding the fact that such obligations are required in accordance with the ASU (on a prospective
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or retroactive basis or otherwise) to be treated as capitalized lease obligations in the financial statements to be delivered pursuant to the Loan Documents.
“Indemnitee” has the meaning set forth for such term in Section 2.7.
“Intercreditor Agreement” means that certain Intercreditor Agreement, dated as of the date hereof by and among the Lender and Starr, as amended, restated, supplemented or otherwise modified from time to time.
“Lender” has the meaning set forth for such term in the introduction.
“Lien” means any security interest, pledge, mortgage, encumbrance, lien or charge of any kind (including any agreement to give any of the foregoing, any conditional sale or other title retention agreement or any lease in the nature thereof).
“Loan” has the meaning set forth for such term in Section 2.1.
“Loan Documents” means this Agreement, any promissory notes issued pursuant hereto, the Intercreditor Agreement, and all other agreements, instruments, certificates or other documents now or hereafter executed or delivered to, or in favor of, the Lender in connection with this Agreement or the transactions contemplated hereby.
“Material Adverse Effect” means (a) a material adverse change in, or a material adverse effect on, the operations, business, properties, liabilities (actual or contingent) or condition (financial or otherwise) of the Borrower and its Subsidiaries, taken as a whole, or (b) a material adverse effect on (i) the ability of the Borrower to perform the Obligations, (ii) the legality, validity, binding effect or enforceability against the Borrower of any Loan Document to which it is a party or (iii) the rights, remedies and benefits available to, or conferred upon, the Lender under any Loan Document.
“Maturity Date” means the earliest to occur of (a) March 17, 2025, (b) the date the Starr Loan becomes due and payable, and (c) the date the outstanding principal of the Loan is declared due and payable pursuant to Section 6.2(A).
“Obligations” means all advances to, and debts, liabilities, obligations, covenants and duties of, the Borrower arising under any Loan Document or otherwise with respect to the Loan, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against the Borrower or any Affiliate thereof of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding. Without limiting the foregoing, the Obligations include (a) the obligation to pay principal, interest, charges, expenses, fees, indemnities and other amounts payable by the Borrower under any Loan Document and (b) the obligation of the Borrower to reimburse any amount in respect of any of the foregoing that the Lender, in its sole discretion, may elect to pay or advance on behalf of the Borrower.
“Parties” has the meaning set forth for such term in the introduction.
“Permitted Liens” means:
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“Person” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, governmental authority or other entity.
“Prepayment Notice” has the meaning set forth for such term in Section 2.4.
“Prepayment Premium” means a premium, payable to the Lender, in an amount equal to:
(a) for a prepayment of the Loan or any portion thereof made prior to March 17, 2024, six percent (6.0%) of the then outstanding principal amount of the Loan or portion thereof being prepaid immediately prior to the date of such prepayment; and
(b) for a prepayment of the Loan made on or after March 17, 2024 but prior to March 17, 2025, three percent (3.0%) of the then outstanding principal amount of the Loan or portion thereof being prepaid immediately prior to the date of such prepayment.
For the avoidance of doubt, no Prepayment Premium shall be due on the Loan or other Obligations paid on the Maturity Date.
“Related Party” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents, trustees, administrators, managers, advisors and representatives of such Person and of such Person’s Affiliates.
“Starr Loan” means, collectively, the loans made to the Borrower pursuant to that certain Loan Agreement dated as of March 17, 2023, by and between Starr and the Borrower, as amended, modified, extended, restated, replaced or supplemented from time to time.
“Subsidiary” of any Person (the “parent”) means and includes any other Person in which the parent directly or indirectly through one or more Persons holds more than 50% of the equity interests of such other Person. Unless otherwise expressly provided, all references to “Subsidiary” herein mean a Subsidiary of the Borrower.
“Swap Contract” means any rate swap transactions, foreign exchange transactions, currency swap transactions, credit derivative transactions, commodity swaps, equity or bond swaps or any other similar transactions or any combination thereof (including any options with respect thereto).
“UCC” means the Uniform Commercial Code of the State of New York or of any other jurisdiction the laws of which are required as a result thereof to be applied in connection with the attachment, perfection or priority of, or remedies with respect to, the Lender’s security interest in any Collateral.
“United States” means the United States of America.
“Yorkville PPA” means that certain Pre-Paid Advance Agreement between the Borrower and YA II PN, Ltd.
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2. Use of Certain Terms. As used in this Agreement, “include,” “includes” and “including” have the inclusive meaning of “including without limitation.” All pronouns and any variations thereof refer to masculine, feminine, neuter, singular or plural as the identity of the Person or Persons may require.
3. Headings and References. Section and other headings are for reference only, and do not affect the interpretation or meaning of any provision of this Agreement. Unless otherwise provided, references to articles, sections, clauses, annexes, schedules and exhibits refer to articles, sections, clauses, annexes, schedules and exhibits of this Agreement. The words “hereof,” “herein,” “hereby,” “hereunder” and other similar terms of this Agreement refer to this Agreement as a whole and not exclusively to any particular provision of this Agreement. Unless otherwise expressly indicated in this Agreement, the words “above” and “below,” when following a reference to a clause of any Loan Document, refer to a clause within the same section of such Loan Document. References in this Agreement to any Loan Document or any other agreement are deemed to (a) refer to such Loan Document or such other agreements, as the case may be, as the same may be amended, restated, supplemented or otherwise modified from time to time under the provisions hereof or thereof, unless expressly stated otherwise or unless such amendment, restatement, supplement or modification is not permitted by the terms of this Agreement and (b) include all schedules, exhibits and appendices thereto. References in this Agreement to any law, rule, statute or regulation are deemed to refer to such law, rule, statute or regulation as it may be amended, supplemented or otherwise modified from time to time, and any successor law, rule, statute or regulation, in each case as in effect at the time any such reference is operative. Any reference to a Person includes the successors, assigns, participants and transferees of such Person, but such reference will not increase, decrease or otherwise modify in any way the provisions in any Loan Document governing the assignment of rights and obligations under or the binding effect of any provision of any Loan Document.
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ANNEX B
Form of Warrant
[to be attached]
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ANNEX C
Notices
If to the Borrower:
Celularity Inc.
170 Park Avenue
Florham Park, NJ 07932
Attention: David Beers
If to the Lender (as of the Closing Date):
Resorts World Inc Pte Ltd
3, Lim Teck Kim Road, #09-02
Genting Centre, Singapore (088934)
Attn: Lim Chee Heong/ Hiu Woon Yau
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