MannKind (MNKD) 8-K Amendment No. 6 to Credit and Security Agreement

Exhibit 99.1

Execution Version

AMENDMENT NO. 6 TO CREDIT AND SECURITY AGREEMENT

This AMENDMENT NO. 6 TO CREDIT AND SECURITY AGREEMENT (this “Agreement”) is made as of this 1st day of March, 2021, by and among MANNKIND CORPORATION, a Delaware corporation (“MannKind”), MANNKIND LLC, a Delaware limited liability company (“MannKind LLC”), QRUMPHARMA, INC., a Delaware corporation (“QP”, and, QP, together with MannKind and MannKind LLC, each a “Borrower” and collectively, the “Borrowers”), MIDCAP FINANCIAL TRUST, as Agent (in such capacity, together with its successors and assigns, “Agent”) and the financial institutions or other entities from time to time parties to the Credit Agreement referenced below, each as a Lender.

RECITALS

A. Agent, Lenders and Borrowers have entered into that certain Credit and Security Agreement, dated as of August 6, 2019 (as amended by that certain Amendment No. 1 to Credit and Security Agreement, dated as of December 18, 2019, that certain Amendment No. 2 to Credit and Security Agreement, dated as of August 21, 2020, that certain Amendment No. 3 to Credit and Security Agreement, dated as of November 30, 2020, that certain Amendment No. 4 to Credit and Security Agreement, dated as of December 7, 2020 and that certain Omnibus Joinder and Amendment No. 5 to Credit and Security Agreement and Amendment No. 1 to Pledge Agreement, dated as of December 29, 2020, and as further amended, supplemented or otherwise modified from time to time prior to the date hereof, the “Existing Credit Agreement” and, as the same is amended hereby and as it may be further amended, modified, supplemented and restated from time to time, the “Credit Agreement”), pursuant to which the Lenders have agreed to make certain advances of money and to extend certain financial accommodations to the Borrowers in the amounts and manner set forth in the Credit Agreement.

B. Borrowers have requested, and Agent and Lenders have agreed, on and subject to the terms and conditions set forth in this Agreement, the Credit Agreement and the other Financing Documents, to amend certain provisions of the Existing Credit Agreement.

AGREEMENT

NOW, THEREFORE, in consideration of the foregoing, the terms and conditions set forth in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Agent, Lenders and Borrower hereby agree as follows:

1. Recitals. This Agreement shall constitute a Financing Document and the Recitals and each reference to the Credit Agreement, unless otherwise expressly noted, will be deemed to reference the Credit Agreement as amended hereby. The Recitals set forth above shall be construed as part of this Agreement as if set forth fully in the body of this Agreement and capitalized terms used but not otherwise defined herein shall have the meanings ascribed to them in the Credit Agreement (including those capitalized terms used in the Recitals hereto).

2. Amendments to Existing Credit Agreement. Subject to the terms and conditions of this Agreement, including, without limitation, the conditions to effectiveness set forth in Section 5 below, the Existing Credit Agreement is hereby amended as follows:

(a) Section 7.1(d) of the Existing Credit Agreement is hereby amended to add the parenthetical “(including payments of interest and other payments permitted under Section 7.9(b) in respect of the Permitted Additional Convertible Notes)” after the word “Business”.

(b) Section 7.4(b) of the Existing Credit Agreement is hereby amended by adding the following proviso:

“; provided that payments of interest on Permitted Additional Convertible Notes and other payments in respect of the Permitted Additional Convertible Notes permitted pursuant to Section 7.9(b) are permitted.”

(c) Section 7.9(b) of the Existing Credit Agreement is hereby amended by:

(i) Replacing the words “Closing Date Convertible Note Documents” in the lead-in sentence thereto with the words “Convertible Note Documents”;

(ii) Replacing the words “Closing Date Convertible Notes” in the proviso to clause (i) thereof with the words “Convertible Notes”; and

(iii) Adding the following new clauses (iv) and (v):

“(iv) payments of regularly scheduled interest (including additional interest) on the Permitted Additional Convertible Notes; and

(v) exchanges of common equity interests of MannKind (other than Disqualified Stock), together with cash in lieu of fractional shares and/or cash in respect of accrued and unpaid interest, in exchange for Permitted Additional Convertible Notes).”

(d) Section 7.9(g)(iii) of the Existing Credit Agreement is hereby amended by replacing the words “Closing Date Convertible Note Document” in the lead-in sentence thereto with the words “Convertible Note Document”.

(e) Section 10.1(e)(iii) is hereby amended by replacing the words (i) “Closing Date Convertible Note Document” with the words “Convertible Note Document” and (ii) “Closing Date Convertible Note Obligations” with the words “Convertible Note Obligations (other than a conversion permitted pursuant to Section 7.9(b))”.

(f) Clause (d) of the definition of “Change in Control” in Section 15 of the Existing Credit Agreement is hereby amended by “Closing Date Convertible Note Documents” with the words “Convertible Note Documents”.

(g) The definition of “Permitted Indebtedness” in Section 15 of the Existing Credit Agreement is hereby amended by adding the following new clause (u):

“(u) the Permitted Additional Convertible Note Obligations” .

(h) Section 15 of the Existing Credit Agreement is hereby amended by adding the following new defined terms in the appropriate alphabetical order:

““Convertible Notes” means, collectively, the Closing Date Convertible Notes and Permitted Additional Convertible Notes.”

““Convertible Note Documents” means, collectively, the Closing Date Convertible Note Documents and Permitted Additional Convertible Note Documents.”

““Convertible Note Obligations” means, collectively, the unsecured obligations, liabilities and Indebtedness owing by Borrower under the Closing Date Convertible Note Documents and Permitted Additional Convertible Note Documents.”

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““Permitted Additional Convertible Notes” means any unsecured notes issued by MannKind convertible at the option of the holders thereof into cash, shares of MannKind’s common stock or any combination thereof, at MannKind’s election; provided that (a) the stated final maturity thereof shall be no earlier than four and one-half (4.5) years after the issuance of such note, (b) such notes shall not be required to be repaid, prepaid, redeemed, repurchased, cash-converted or defeased, whether on one or more fixed dates, upon the occurrence of one or more events or at the option of any holder thereof prior to the four and one-half (4.5) year anniversary of the issuance of such note (in each case, other than (i) the making of regularly scheduled cash interest payments (including additional interest) permitted by Section 7.9(b)(iv), (ii) payments of reasonable and customary fees and expenses incurred in connection therewith as and when such fees and expenses are due, (iii) the conversion of such notes into common stock of MannKind (and not, for the avoidance of doubt, any settlement, payment or conversion into cash), plus cash in lieu of any fractional share of common stock, and (iv) events of default and obligations to repurchase such notes upon a “change in control”, “fundamental change” or similar events, (c) the terms, conditions, fees, covenants, and settlement mechanics of such notes shall be such as are typical and customary for notes of such type (as determined by MannKind in good faith), (d) no Credit Party or Subsidiary (other than MannKind) shall be obligated under such notes, (e) the obligations of all Persons in respect of such notes and any related documents shall be fully unsecured, (f) the rate of interest payable in cash in respect of such notes shall not exceed five and one-half percent (5.50%) per annum, (g) immediately before and after giving pro forma effect to the incurrence of such notes and any concurrent use of proceeds thereof, no Event of Default shall have occurred and be continuing and (h) to the extent such notes include a cross-event of default (other than any cross-payment event of default or cross-acceleration event of default) provision contained therein that relates to indebtedness of any Borrower (such indebtedness, a “Cross-Default Reference Obligation”), contains a cure period of at least fifteen (15) calendar days before an event of default or other event or condition under such Cross-Default Reference Obligation results in an event of default under such cross-default provision.”

““Permitted Additional Convertible Note Documents” means (i) the Permitted Additional Convertible Notes and (ii) all other indentures, agreements and instruments entered into in connection with the foregoing, as the same may be amended, modified, supplemented, replaced or refinanced from time to time in accordance with the terms of this Agreement.”

““Permitted Additional Convertible Note Obligations” means the unsecured obligations, liabilities and Indebtedness owing by Borrower under the Permitted Additional Convertible Note Documents.”

3. Representations and Warranties; Reaffirmation of Security Interest. Each Borrower hereby (a) confirms that all of the representations and warranties set forth in the Credit Agreement are true and correct in all material respects (without duplication of any materiality qualifier in the text of such representation or warranty) with respect to such Borrower as of the date hereof except to the extent that any such representation or warranty relates to a specific date in which case such representation or warranty shall be true and correct as of such earlier date, and (b) covenants to perform its respective obligations under the Credit Agreement. Each Borrower confirms and agrees that all security interests and Liens granted to Agent continue in full force and effect, and all Collateral remains free and clear of any Liens, other than Permitted Liens. Nothing herein is intended to impair or limit the validity, priority or extent of Agent’s security interests in and Liens on the Collateral. Each Borrower acknowledges and agrees that the Credit Agreement, the other Financing Documents and this Agreement constitute the legal, valid and binding obligation of such Borrower, and are enforceable against such Borrower in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency or other similar laws relating to the enforcement of creditors’ rights generally and by general equitable principles.

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4. Costs and Fees. Borrowers shall be responsible for the payment of all reasonable and documented out-of-pocket costs and fees of Agent’s counsel incurred in connection with the preparation of this Agreement and any related documents.

5. Conditions to Effectiveness. This Agreement shall become effective as of the date on which each of the following conditions has been satisfied, as determined by Agent in its sole discretion:

(a) Agent shall have received (including by way of facsimile or other electronic transmission) a duly authorized, executed and delivered counterpart of the signature page to this Amendment from each Borrower, Agent and the Lenders;

(b) all representations and warranties of Borrower contained herein shall be true and correct in all material respects (without duplication of any materiality qualifier in the text of such representation or warranty) as of the date hereof except to the extent that any such representation or warranty relates to a specific date in which case such representation or warranty shall be true and correct as of such earlier date (and such parties’ delivery of their respective signatures hereto shall be deemed to be its certification thereof);

(c) prior to and after giving effect to the agreements set forth herein, no Default or Event of Default shall exist under any of the Financing Documents; and

(d) Agent shall have received such other documents, information, certificates, and information as Agent may reasonably request in connection with this Agreement.

6. Release. In consideration of the agreements of Agent and Lenders contained herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Borrower, voluntarily, knowingly, unconditionally and irrevocably, with specific and express intent, for and on behalf of itself and all of its respective parents, subsidiaries, affiliates, members, managers, predecessors, successors, and assigns, and each of its respective current and former directors, officers, shareholders, agents, and employees, and each of its respective predecessors, successors, heirs, and assigns (individually and collectively, the “Releasing Parties”) does hereby fully and completely release, acquit and forever discharge each of Agent, Lenders, and each their respective parents, subsidiaries, affiliates, members, managers, shareholders, directors, officers and employees, and each of their respective predecessors, successors, heirs, and assigns (individually and collectively, the “Released Parties”), of and from any and all actions, causes of action, suits, debts, disputes, damages, claims, obligations, liabilities, costs, expenses and demands of any kind whatsoever, at law or in equity, whether matured or unmatured, liquidated or unliquidated, vested or contingent, choate or inchoate, known or unknown that the Releasing Parties (or any of them) has against the Released Parties or any of them (whether directly or indirectly), based in whole or in part on facts, whether or not now known, existing on or before the date hereof, that relate to, arise out of or otherwise are in connection with: (i) any or all of the Financing Documents or transactions contemplated thereby or any actions or omissions in connection therewith or (ii) any aspect of the dealings or relationships between or among any Borrower, on the one hand, and any or all of the Released Parties, on the other hand, relating to any or all of the documents, transactions, actions or omissions referenced in clause (i) hereof, in each case, based in whole or in part on facts, whether or not now known, existing before the First Amendment Effective Date. Borrower acknowledges that the foregoing release is a material inducement to Agent’s and each Lender’s decision to enter into this Agreement and agree to the modifications contemplated hereunder, and has been relied upon by Agent and Lenders in connection therewith.

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7. No Waiver or Novation. The execution, delivery and effectiveness of this Agreement shall not, except as expressly provided in this Agreement, operate as a waiver of any right, power or remedy of Agent, nor constitute a waiver of any provision of the Credit Agreement, the Financing Documents or any other documents, instruments and agreements executed or delivered in connection with any of the foregoing. Nothing herein is intended or shall be construed as a waiver of (a) any existing Defaults or Events of Default under the Credit Agreement or the other Financing Documents or any of Agent’s rights and remedies in respect of such Defaults or Events of Default. Except as expressly provided herein, nothing in this Agreement shall be construed as an amendment to or waiver of any condition precedent to any funding of Credit Extensions by the Lenders under the Credit Agreement, including those conditions set forth in Section 3.2 of the Credit Agreement. This Agreement (together with any other document executed in connection herewith) is not intended to be, nor shall it be construed as, a novation of the Credit Agreement.

8. Affirmation. Except as specifically amended pursuant to the terms hereof, Borrower hereby acknowledges and agrees that the Credit Agreement and all other Financing Documents (and all covenants, terms, conditions and agreements therein) shall remain in full force and effect, and are hereby ratified and confirmed in all respects by Borrower. Borrower covenants and agrees to comply with all of the terms, covenants and conditions of the Credit Agreement and the Financing Documents, notwithstanding any prior course of conduct, waivers, releases or other actions or inactions on Agent’s or any Lender’s part which might otherwise constitute or be construed as a waiver of or amendment to such terms, covenants and conditions.

9. Miscellaneous.

(a) Reference to the Effect on the Credit Agreement. Upon the effectiveness of this Agreement, each reference in the Credit Agreement to “this Agreement,” “hereunder,” “hereof,” “herein,” or words of similar import shall mean and be a reference to the Credit Agreement, as amended by this Agreement. Except as specifically amended above, the Credit Agreement, and all other Financing Documents (and all covenants, terms, conditions and agreements therein), shall remain in full force and effect, and are hereby ratified and confirmed in all respects by Borrower.

(b) GOVERNING LAW. THIS AGREEMENT AND ALL DISPUTES AND OTHER MATTERS RELATING HERETO OR THERETO OR ARISING THEREFROM (WHETHER SOUNDING IN CONTRACT LAW, TORT LAW OR OTHERWISE), SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES (OTHER THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW).

(c) WAIVER OF JURY TRIAL. BORROWER, AGENT AND THE LENDERS PARTY HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY AND AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY. BORROWER, AGENT AND EACH LENDER ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH HAS RELIED ON THE WAIVER IN ENTERING INTO THIS AGREEMENT, AND THAT EACH WILL CONTINUE TO RELY ON THIS WAIVER IN THEIR RELATED FUTURE DEALINGS. BORROWER, AGENT AND EACH LENDER WARRANTS AND REPRESENTS THAT IT HAS HAD THE OPPORTUNITY OF REVIEWING THIS JURY WAIVER WITH LEGAL COUNSEL, AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS.

(d) Incorporation of Credit Agreement Provisions. The provisions contained in Article 12 (Choice of law; venue and jury trial waiver; California waivers) and Section 13.2 (Indemnification) of the Credit Agreement are incorporated herein by reference to the same extent as if reproduced herein in their entirety.

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(e) Headings. Section headings in this Agreement are included for convenience of reference only and shall not constitute a part of this Agreement for any other purpose.

(f) Counterparts. This Agreement may be signed in any number of counterparts, each of which shall be deemed an original and all of which when taken together shall constitute one and the same instrument. The words “execution,” “signed,” “signature,” and words of like import in this Amendment shall be deemed to include electronic signatures or electronic records, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.

(g) Entire Agreement. This Agreement constitutes the entire agreement and understanding among the parties hereto and supersedes any and all prior agreements and understandings, oral or written, relating to the subject matter hereof.

(h) Severability. In case any provision of or obligation under this Agreement shall be invalid, illegal or unenforceable in any applicable jurisdiction, the validity, legality and enforceability of the remaining provisions or obligations, or of such provision or obligation in any other jurisdiction, shall not in any way be affected or impaired thereby.

(i) Successors/Assigns. This Agreement shall bind, and the rights hereunder shall inure to, the respective successors and assigns of the parties hereto, subject to the provisions of the Credit Agreement and the other Financing Documents.

[SIGNATURES APPEAR ON FOLLOWING PAGES]

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IN WITNESS WHEREOF, intending to be legally bound, the undersigned have executed this Agreement as of the day and year first hereinabove set forth.

AGENT:	MIDCAP FINANCIAL TRUST,
	By:	Apollo Capital Management, L.P.,
	its investment manager
	By:	Apollo Capital Management GP, LLC,
	its general partner
	By:	/s/Maurice Amsellem
	Name:	Maurice Amsellem
	Title:	Authorized Signatory
LENDERS:	MIDCAP FUNDING XIII TRUST
	By:	Apollo Capital Management, L.P.,
	its investment manager
	By:	Apollo Capital Management GP, LLC,
	its general partner
	By:	/s/Maurice Amsellem
	Name:	Maurice Amsellem
	Title:	Authorized Signatory
LENDERS:	MIDCAP FINANCIAL TRUST,
	By:	Apollo Capital Management, L.P.,
	its investment manager
	By:	Apollo Capital Management GP, LLC,
	its general partner
	By:	/s/Maurice Amsellem
	Name:	Maurice Amsellem
	Title:	Authorized Signatory

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LENDERS:	ELM 2020-3 TRUST
	By: MidCap Financial Services Capital Management, LLC, as Servicer
	By:	/s/ John O. Dea
	Name:	John O. Dea / Director
	Title:	Authorized Signatory
LENDERS:	ELM 2020-4 TRUST
	By: MidCap Financial Services Capital Management, LLC, as Servicer
	By:	/s/ John O. Dea
	Name:	John O. Dea / Director
	Title:	Authorized Signatory

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LENDERS:	APOLLO INVESTMENT CORPORATION
	By: Apollo Investment Management, L.P., as Advisor
	By: ACC Management, LLC, as its General Partner
	By:	/s/ Joseph D. Glatt
	Name:	Joseph D. Glatt
	Title:	Vice President

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BORROWERS:	MANNKIND CORPORATION
	By:	/s/ Steven B. Binder
	Name:	Steven B. Binder
	Title:	Chief Financial Officer
	MANNKIND LLC
	By:	/s/ Steven B. Binder
	Name:	Steven B. Binder
	Title:	Chief Financial Officer
	QRUMPHARMA, INC.
	By:	/s/ Steven B. Binder
	Name:	Steven B. Binder
	Title:	Chief Financial Officer

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