REVENUE INTEREST FINANCING AGREEMENT Dated as of April 19, 2022 between BIOXCEL THERAPEUTICS, INC., THE PURCHASERS FROM TIME TO TIME PARTY HERETO, and OAKTREE FUND ADMINISTRATION, LLC, as the Administrative Agent
Certain information marked as [***] has been excluded from this exhibit because it is both (i) not material and (ii) of the type that the registrant customarily and actually treats as confidential.
Execution Version
REVENUE INTEREST FINANCING AGREEMENT
Dated as of April 19, 2022
between
THE PURCHASERS FROM TIME TO TIME PARTY HERETO,
and
OAKTREE FUND ADMINISTRATION, LLC,
268911731 v5
Table of Contents
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EXHIBITS
Exhibit A |
| – |
| Form of Security Agreement |
Exhibit B | | – | | Form of Funding Notice |
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REVENUE INTEREST FINANCING AGREEMENT
This REVENUE INTEREST FINANCING AGREEMENT (as amended, supplemented or otherwise modified from time to time, this “Agreement”) is made and entered into as of April 19, 2022, by and between BioXcel Therapeutics, Inc., a Delaware corporation (the “Company”), the entities listed in Schedule 1 hereto (the “Purchasers”), and Oaktree Fund Administration, LLC, as administrative agent for the Purchasers (in such capacity, the “Administrative Agent” and, together with the Company and the Purchasers, the “Parties”, and each a “Party”).
WHEREAS, the Company wishes to obtain financing in respect of the Commercialization (as hereinafter defined) of the Product (as hereinafter defined);
WHEREAS, the Company wishes to sell, assign, convey and transfer to the Purchasers the Assigned Interests and Assigned Tail Royalty Interests (each as hereinafter defined) in consideration for its payment of the Purchase Price (as hereinafter defined) to raise such financing;
WHEREAS, the Purchasers wish to purchase from the Company the Assigned Interests and Assigned Tail Royalty Interests, all upon and subject to the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants, agreements representations and warranties set forth herein, the parties hereto agree as follows:
The following terms, as used herein, shall have the following meanings:
“Acquisition” shall mean 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, consolidation, 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 of directors or equivalent management or oversight body, 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 of directors or equivalent management or oversight body, 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 of directors or equivalent management or oversight body.
“Administrative Agent” shall have the meaning set forth in the preamble hereto.
“Affiliate” shall mean any Person that controls, is controlled by, or is under common control with another Person. For purposes of this definition, “control” shall mean (i) in the case of corporate entities, direct or indirect ownership of at least fifty percent (50%) of the stock or shares
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having the right to vote for the election of directors, and (ii) in the case of non-corporate entities, direct or indirect ownership of at least fifty percent (50%) of the Equity Interest with the power to direct the management and policies of such non-corporate entities; provided, that notwithstanding the foregoing, solely with respect to transfers by, or any other rights afforded to, the QIA Purchaser or any of its Affiliates, all references to “Affiliate” or “Affiliates” in the case of the QIA Purchaser, shall mean (i) Qatar Investment Authority and any individual, corporation, partnership, firm, joint venture, investment fund, association, trust, unincorporated association or organization, governmental body or other entity, which controls, is controlled by or is under common control with, the QIA Purchaser, and (ii) government entities or instrumentalities of, or entities that are wholly-owned or controlled by, the State of Qatar, the Amiri Diwan of the State of Qatar or any entities that are wholly-owned or controlled by any one or more of the foregoing.
“Affiliated Parties” shall have the meaning set forth in Section 7.19.
“Agreement” shall have the meaning set forth in the first paragraph hereof.
“Anti-Terrorism Laws” shall mean 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 Funding Condition” shall mean, with respect to each tranche, the Tranche A Funding Condition, Tranche B Funding Condition, or Tranche C Funding Condition, as applicable.
“Applicable Funding Date” shall mean, with respect to each tranche, the Tranche A Funding Date, Tranche B Funding Date, or Tranche C Funding Date, as applicable.
“Applicable Percentage” shall mean, cumulatively, (i) 7.75% for Net Sales less than or equal to $[***] during any Fiscal Year, (ii) 2.75% for Net Sales greater than $[***] and less than or equal to $[***] during any Fiscal Year, and (iii) 0.375% for Net Sales exceeding $[***] during any Fiscal Year.
“Applicable Tranche” shall mean Tranche A, Tranche B, or Tranche C, as applicable.
“Assigned Interests” shall mean the Purchasers’ right to receive amounts equal to the product of the Applicable Percentage multiplied by the applicable Net Sales during the Revenue Interest Period, pursuant to the terms and conditions of this Agreement (including the Hard Cap).
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“Assigned Tail Royalty Interests” shall mean the Purchasers’ right to receive Tail Royalty Payments, pursuant to the terms and conditions of this Agreement (including the Tail Royalty Condition).
“Audit Costs” shall mean, with respect to any audit of the books and records of the Company with respect to amounts payable or paid under this Agreement, the reasonable and documented out-of-pocket cost of such audit, including all fees, costs and expenses incurred in connection therewith.
“Automatic Put Option Trigger” shall have the meaning set forth in Section 5.05(a)(i).
“Bankruptcy Event” shall mean the occurrence of any of the following:
“Benefit Plan” shall mean 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 the Company or any Subsidiary thereof incurs or otherwise has any obligation or liability, contingent or otherwise.
“Board” shall mean the board of directors (or similar governing body) of the Company.
“Business Day” shall mean any day other than a Saturday, a Sunday, any day which is a legal holiday under the laws of the State of New York, or any day on which banking institutions located in the State of New York are required by law or other governmental action to close; provided, that with respect to any right or obligation of any QIA Purchaser arising under this
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Agreement, “Business Day” shall not include any day on which commercial banks in Qatar are authorized or required to close.
“BXCL 501 FDA Approval” shall mean the receipt of approval from the FDA of an NDA in respect of the use of the Product for the acute treatment of agitation associated with schizophrenia or bipolar I or II disorder in adults.
[***].
[***].
“Call Option” shall have the meaning set forth in Section 5.05(b).
“Call Option Closing Date” shall have the meaning set forth in Section 5.05(b).
“Capital Lease Obligations” shall mean 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. Notwithstanding anything to the contrary in this Agreement, all obligations of any Person that would have been treated as operating leases pursuant to GAAP prior to the effectiveness of Accounting Standards Codification 842 shall continue to be treated as operating leases for purposes of the definitions of “Capital Lease Obligations” and “Indebtedness.”
“Change of Control” shall mean 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 and excluding any Permitted Holder) becomes the “beneficial owner”, directly or indirectly, of thirty-five percent (35%) or more of the Equity Interests of the Company entitled to vote for members of the Board of the Company 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); (ii) as a result of which any Permitted Holder or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities Act) including any Permitted Holder becomes the “beneficial owner”, directly or indirectly, of forty-five percent (45%) or more of the Equity Interests of the Company entitled to vote for members of the Board of the Company on a fully-diluted basis (and taking into account all such Equity Interests that such Permitted Holder or group has the right to acquire pursuant to any Option Right); or (iii) that results in the sale of all or substantially all of the assets or businesses of the Company and its Subsidiaries, taken as a whole. For purposes of this definition, “beneficial owner” is 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”).
“Code” shall mean the Internal Revenue Code of 1986, as amended.
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“Collateral” shall mean the property included in the definition of “Collateral” in the Security Agreement.
“Collection Account” shall mean one or more segregated account maintained at JPMorgan Chase Bank, N.A., or any replacement for such account maintained at a deposit bank.
“Combination” shall have the meaning set forth in the definition of “Net Sales.”
“Commercialization” shall mean 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 the Product in the United States after Regulatory Approval for the Product has been obtained, which shall include, as applicable, seeking and negotiating pricing and reimbursement approvals for the Product in the United States, post-marketing approval studies, post-launch marketing, promoting, detailing, marketing research, distributing, customer service, selling the Product, importing, exporting or transporting the Product for sale, and regulatory compliance with respect to the foregoing. When used as a verb, “Commercialize” shall mean to engage in Commercialization.
“Commercially Reasonable Efforts” shall mean, with respect to the efforts to be expended, or considerations to be undertaken, by the Company and its Affiliates with respect to any objective or activity to be undertaken hereunder, such efforts and resources normally used by a reasonably prudent company in the pharmaceutical or biotechnology industry of similar size and resources to Company to accomplish a substantially similar objective or activity for a pharmaceutical product for which substantially the same regulatory structure is involved as for the Product and irrespective of whether such company has any other products that compete with such pharmaceutical product, which pharmaceutical product is owned or licensed in a similar manner as the Product, which pharmaceutical product is at a similar stage in its Development or product life cycle and is of similar market or profit potential as the Product, taking into account efficacy, safety, approved labeling, the competitiveness of alternative products in a given jurisdiction, pricing/reimbursement for the pharmaceutical product in a given jurisdiction, the Intellectual Property and regulatory protection of the pharmaceutical product in a given jurisdiction, the regulatory structure in such jurisdiction and the profitability of the pharmaceutical product in a given jurisdiction, all as measured by the facts and circumstances in existence at the time such efforts are due. It is anticipated that the level of effort and resources that constitute “Commercially Reasonable Efforts” with respect to a particular indication will change over time, reflecting changes in the status of the Product, as applicable.
“Commitment” shall mean, with respect to each Purchaser, the obligation of such Purchaser to fund its applicable Purchase Price set forth opposite such Purchaser’s name on Schedule 1 (as such Schedule may be amended from time to time) under the caption “Applicable Commitment” on each of the Tranche A Funding Date, Tranche B Funding Date, and Tranche C Funding Date, as applicable, in accordance with the terms and conditions of this Agreement. The aggregate amount of Commitments on the date of this Agreement equals $120,000,000.
“Company” shall have the meaning set forth in the first paragraph hereof.
“Company Indemnified Party” shall have the meaning set forth in Section 7.05(b).
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“Confidential Information” shall mean, as it relates to the Company and its Affiliates and the Product, the non-public Intellectual Property, confidential business information, financial data and other like information (including ideas, research and development, know-how, formulas, schematics, compositions, technical data, specifications, customer and supplier lists, pricing and cost information, and business and marketing plans and proposals), inventory, ideas, algorithms, processes, computer software programs or applications (in both source code and object code form), client lists and tangible or intangible proprietary information or material, or such other information that either party identifies to the other as confidential or the nature of which or the circumstances of the disclosure of which would reasonably indicate that such information is confidential.
“Contracts” shall mean 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” or “Controlled” shall mean, when used with respect to any item of Intellectual Property, the possession (whether by ownership, license, sublicense or contract) by Company or any of its Affiliates, of the ability to assign or grant to any Third Party the license, sublicense or right to access and use such Intellectual Property as it relates to the manufacture, use, Development and/or Commercialization of the Product, without paying any consideration to any Third Party (now or in the future) or violating the terms of any agreement or other arrangement with any Third Party. Notwithstanding the foregoing, a Party and its controlled Affiliates will not be deemed to “Control” any Intellectual Property that, prior to the consummation of a change of control of such Party, is owned or in-licensed by a Third Party that becomes an Affiliate of such acquired Party (or that merges or consolidates with such Party) after the Effective Date as a result of such change of control unless prior to the consummation of such change of control, such acquired Party or any of its controlled Affiliates also Controlled such Intellectual Property.
“Copyright” shall mean published and unpublished works of authorship whether or not copyrightable, including software, website and mobile content, data, databases, and other compilations of information, in each case, whether or not registered, and any and all copyrights in and to the foregoing, together with 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.
“Designated Jurisdiction” shall mean any country or territory to the extent that such country or territory is the subject of country- or territory-wide Sanctions.
“Development” shall mean, with respect to the Product, any internal or external research or development activities, and any internal or external regulatory activities related to obtaining and maintaining Regulatory Approval for the Product, including development of data or information for the purpose of submission to a Regulatory Agency to obtain authorization to conduct clinical trials and to obtain, support, or maintain Regulatory Approval of the Product and including
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activities directed toward the clinical manufacture and manufacturing process development for the Product. “Develop,” “Developing,” and “Developed” will be construed accordingly.
“Disqualified Equity Interest” shall mean, 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), 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), in whole or in part, (iii) provides for the scheduled payments of dividends or other distributions in cash 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 (as defined in the Oaktree Term Loan Facility); provided, that if such Equity Interests are issued to any employee or any plan for the benefit of employees of the Company or its Subsidiaries or by any such plan to such employees, such Equity Interests shall not constitute Disqualified Equity Interests solely because they may be required to be repurchased by the Company or its Subsidiaries in order to satisfy applicable statutory or regulatory obligations or as a result of any such employee’s termination, death or disability; provided, further, that no Equity Interests held by any future, present or former employee, director, officer or consultant (or their respective Affiliates or immediate family members) of the Company issued pursuant to customary terms in the Ordinary Course shall be considered Disqualified Equity Interests solely because such Equity Interests are redeemable or subject to repurchase pursuant to a customary management equity subscription agreement, stock option, stock appreciation right or other stock award agreement or similar agreement that may be in effect from time to time.
“Effective Date” shall mean the first date upon which the conditions set forth in Section 2.03(a), shall have occurred. The Effective Date occurred on April 19, 2022.
“Equity Interests” shall mean, 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 Effective 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” shall mean, 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. Where the permissibility of a transaction, accuracy of a representation or warranty or compliance with a covenant hereunder is determined by reference to amounts stated in U.S. dollars (or the Equivalent Amount in other currencies), the time of determination shall, in each case, be the time at which any applicable transaction is entered into (e.g. the time at which Indebtedness is incurred) or representation or warranty is made, and the permissibility of actions taken under this Agreement
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shall not be affected by, and no default, breach of this Agreement or Put Option Event shall arise as a result of, subsequent fluctuations in exchange rates.
“ERISA” shall mean the United States Employee Retirement Income Security Act of 1974, as amended.
“ERISA Affiliate” shall mean, collectively, the Company, any Subsidiary thereof, and any Person under common control, or treated as a single employer, with the Company or any Subsidiary thereof, within the meaning of Section 414(b), (c), (m) or (o) of the Code.
“ERISA Event” shall mean (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 the Company or any ERISA Affiliate thereof from a Title IV Plan or the termination of any Title IV Plan resulting in liability under Section 4063 or 4064 of ERISA; (iv) the withdrawal of the Company 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 the Company 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 the Company 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 the Company 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 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 the Company 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 the Company 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 the Company 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 the Company or any ERISA Affiliate thereof of fines, penalties, taxes or related charges under Chapter 43 of the
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Code or under Section 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 the Company 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 the Company 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 the Company 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 the Company.
“ERISA Funding Rules” shall mean 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” shall have the meaning set forth in Section 8.14(a).
“Erroneous Payment Deficiency Assignment” shall have the meaning set forth in Section 8.14(d).
“Erroneous Payment Impacted Assigned Interests and Assigned Tail Royalty Interests” shall have the meaning set forth in Section 8.14(d).
“Erroneous Payment Return Deficiency” shall have the meaning set forth in Section 8.14(d).
“Exchange Rate” shall mean, 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.
“Excluded Liabilities and Obligations” shall have the meaning set forth in Section 2.04.
“Excluded Taxes” shall mean any of the following Taxes imposed on or with respect to any Purchaser or required to be withheld or deducted from a payment to such Purchaser: (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 Purchaser being organized under the laws of, or having its principal office located in, the jurisdiction imposing such Tax (or any political subdivisions thereof) or (y) that are Other Connection Taxes, (ii) U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Purchaser pursuant to a law in effect on the date on which such Purchaser acquires the Assigned Interests, except to the extent that, pursuant to Section 5.10, amounts with respect to such Taxes were payable to such Purchaser’s assignor immediately before such Purchaser acquired the Assigned Interests, (iii) Taxes attributable to such Purchaser’s failure to comply with Section 5.10(b), and (iv) any U.S. federal withholding Taxes imposed under FATCA.
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“FATCA” shall mean 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 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” shall mean 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” shall mean the United States 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.
“Financial Statements” shall mean the audited consolidated balance sheets of the Company and its Subsidiaries as of December 31, 2021, and the related audited consolidated statements of operations and cash flows for the Fiscal Year then ended.
“Fiscal Quarter” shall mean each three (3) month period commencing January 1, April 1, July 1 or October 1, provided, however, that (a) the first Fiscal Quarter of the Term shall extend from the Effective Date to the end of the first full Fiscal Quarter thereafter, and (b) the last Fiscal Quarter of the Term shall end upon the expiration or termination of this Agreement.
“Fiscal Year” shall mean the calendar year.
“Funded Amount” shall mean, as of any time of determination, the aggregate amount actually funded by the Purchasers under this Agreement in respect of Tranche A, Tranche B, and Tranche C.
“GAAP” shall mean generally accepted accounting principles in the United States in effect from time to time.
“Governmental Approval” shall mean 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” shall mean 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 the United States, including the FDA and the United States Patent and Trademark Office.
“Governmental Licenses” shall mean all authorizations issuing from a Governmental Authority, including the FDA, based upon or as a result of applications to and requests for approval from a Governmental Authority for the right to manufacture, import, store, market, promote, advertise, offer for sale, sell, use and/or otherwise distribute the Product, which are owned by or licensed to the Company or any Subsidiary, acquired by the Company or any Subsidiary via assignment, purchase or otherwise or that the Company or any Subsidiary is authorized or granted rights under or to.
“Gross Sales” shall have the meaning set forth in the definition of “Net Sales.”
“Guarantee” of or by any Person (the “Guarantor”) shall mean 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.
“Guarantor” shall have the meaning set forth in the definition of “Guarantee.”
“Hard Cap” shall mean an amount equal to the product of (i) the Funded Amount, multiplied by (ii) 1.75.
“Healthcare Laws” shall mean, collectively, all Laws applicable to the business, any product or the Product Commercialization and Development Activities of the Company and its Subsidiaries, 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 “Xxxxx Statute”; the
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FD&C Act; 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; and all rules, regulations and guidance promulgated under or pursuant to any of the foregoing, including any non-U.S. equivalents.
“Hedging Agreement” shall mean 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” shall have the meaning set forth in the definition of “Healthcare Laws.”
“Immaterial Subsidiary” shall mean any Subsidiary of the Company that (i) individually constitutes or holds less than five percent (5%) of the Company’s consolidated total assets and generates less than five percent (5%) of the Company’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 Company’s consolidated total assets and generate less than five percent (5%) of the Company’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 5.01(h).
“Indebtedness” of any Person shall mean, 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, (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, (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 and (xiv) any Off-Balance Sheet Liability; provided that, notwithstanding the foregoing, Indebtedness shall not include (A) accrued expenses, deferred rent, deferred Taxes, deferred compensation or customary obligations under employment agreements, or (B) accounts payable incurred in the ordinary course of business and not overdue by more than ninety (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.
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“Indemnified Tax” shall mean (i) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of the Assigned Interests or any other Obligation and (ii) to the extent not otherwise described in clause (i), Other Taxes.
“Intellectual Property” shall mean intellectual property or proprietary rights of any kind anywhere in the world, including any rights in or to Patents, Trademarks, Copyrights and Trade Secrets.
“Intercreditor Agreement” shall mean the Intercreditor Agreement between Oaktree Fund Administration, LLC, as the administrative agent under the Oaktree Term Loan Facility, and Oaktree Fund Administration, LLC, as Administrative Agent on behalf of the Purchasers, acknowledged by the Company and each Subsidiary Guarantor as named therein, providing for the relative rights and priorities of the First Lien Claimholders (as defined therein) and the Purchaser Claimholders (as defined therein) with respect to the Collateral (as defined therein) as may be amended, restated, amended and restated, supplemented or otherwise modified from time to time with the consent of the Administrative Agent.
“Invention” shall mean 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.
“Law” shall mean, 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.
“License Agreement” shall mean any existing or future license, commercialization, co-promotion, collaboration, distribution, marketing or partnering agreement entered into before or during the Term by the Company or any of its Affiliates that grants a license to a Third Party under the Product Intellectual Property.
“Licensees” shall mean, collectively, the licensees and any sublicensees under each License Agreement; each a “Licensee”.
“Liens” shall mean (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 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
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case of Equity Interests, any purchase option, call or similar right of a third party with respect to such Equity Interests.
“Long Stop Date” shall mean December 31, 2024.
“Losses” shall mean collectively, any and all claims, damages, losses, judgments, awards, penalties, liabilities, costs and expenses (including reasonable attorneys’ fees and reasonable expenses of investigation) incurred in connection with defending any action, suit or proceeding, giving effect to any tax benefit realized by the indemnified party which is attributable to the Losses to which the indemnity claim relates.
“Majority Purchasers” shall mean, at any time, Purchasers having at such time in excess of fifty percent (50%) of the sum of the Commitments then in effect and the outstanding Funded Amount.
“Market Capitalization” shall mean, as of any date of determination, the total number of outstanding shares of the Company’s common Equity Interests as of the most recent Trading Day ending immediately prior to such date multiplied by the average of the VWAPs over the 30 consecutive Trading Days preceding the date of determination.
“Marketing Authorization” shall mean, with respect to the Product, the Regulatory Approval required by applicable Law to Commercialize the Product including, to the extent required by applicable Law for the Commercialization of the Product, all pricing approvals and government reimbursement approvals.
“Material Adverse Change” shall mean, with respect to the Company and its Subsidiaries, a material adverse change in the business, financial performance, operations, condition of the assets or liabilities of the Company and its Subsidiaries, taken as a whole.
“Material Adverse Effect” shall mean (a) the effect of a Material Adverse Change, (b) a material adverse change in or effect on the legality, validity, binding effect or enforceability of any of the Transaction Documents or the rights, remedies and benefits available to, or conferred on, the Purchasers thereunder, or (c) any material adverse effect on the Product or the ability of the Company to distribute, market and/or otherwise Commercialize the Product within the United States.
“Material Contract” shall mean any contract specifically related to the Product and the Commercialization and/or Development thereof 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. Notwithstanding the foregoing, employment and management contracts shall not be Material Contracts.
“Material Subsidiary” shall mean any Subsidiary of the Company that is not an Immaterial Subsidiary.
“MOIC” shall mean, as of any date of determination, the aggregate amount of payments received by the Purchasers under this Agreement, divided by the Funded Amount as of such date.
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[***].
“Multiemployer Plan” shall mean 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” shall mean, with respect to the Product, (i) a new drug application (as defined in the FD&C Act) and (ii) all supplements and amendments that may be filed with respect thereto.
“Net Sales” shall mean the gross amount billed or invoiced in transactions (“Gross Sales”) by the Company and any of its Affiliates or a Licensee (each of the foregoing persons and entities, for purposes of this definition, shall be considered a “Selling Party”), for sales or other dispositions of the Product to a Third Party in the United States by the Company, its Affiliates or such Licensee (including amounts received by the Company or its Affiliates in the form of milestone, upfront or other similar payments received pursuant to any agreement relating to Product Commercialization and Development Activities), less the sum of the following (to the extent not reimbursed by any Third Party and without duplication):
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Such amounts shall be determined consistent with a Selling Party’s customary practices, and in accordance with GAAP. For the avoidance of doubt, Net Sales shall not include any payments or other consideration received by the Company or its Affiliates from any Licensee with respect to the Development and/or Commercialization of the Product.
Sale or transfer of a Product between any of the Selling Parties shall not result in any Net Sales (unless the Selling Party purchaser or transferee is the ultimate end user of the Product), with Net Sales to be based only on any subsequent sales or dispositions to a non-Selling Party. For clarity, (i) Net Sales shall not include amounts or other consideration received by a Selling Party from a non-Selling Party in consideration of the grant of a (sub)license or co-promotion or distribution right to such non-Selling Party, provided that such consideration is not in lieu of all or a portion of the transfer price of the Product, (ii) sales to a Third Party distributor, wholesaler, group purchasing organization, pharmacy benefit manager, or retail chain customer shall be considered sales to a non-Selling Party to the extent that no additional consideration is received by a Selling Party for the subsequent use or re-sale by any such distributor, wholesaler, group purchasing organization, pharmacy benefit manager, or retail chain customer, as applicable, (iii) Net Sales by a Selling Party to a non-Selling Party consignee are not recognized as Net Sales by such Selling Party until the non-Selling Party consignee sells the Product, (iv) if a Selling Party receives in-kind consideration for the sale of the Product, then Net Sales shall be calculated as the fair market value of all consideration received by a Selling Party in respect of the Product, whether such consideration is in cash, payment in kind, exchange or other form, as determined in good faith by the Selling Party and (v) Net Sales shall exclude transfers or dispositions for charitable, promotional, pre-clinical, clinical, regulatory, or governmental purposes, to the extent consideration is not received for such transfers or dispositions that is in excess of the fully burdened manufacturing cost of the applicable quantity of the Product so transferred or disposed.
With respect to sales of the Product invoiced in U.S. dollars, Net Sales shall be determined in U.S. dollars. No amount for which deduction is permitted pursuant to this definition shall be deducted more than once.
If any Product is sold in the U.S. with another product or therapy that is not a Product for a single invoice price (each a “Combination”), then the Net Sales for any such Product shall be calculated by multiplying actual Net Sales of such Combination by the fraction A/(A+B) where “A” is the weighted average invoice price of the Product, when sold separately in the U.S. during the applicable accounting period in which the sales of the Combination were made, and “B” is the combined weighted average invoice prices of all of the products or therapies other than the Product contained in such Combination, when sold separately in the U.S. during such same accounting period. If the Product or any of the other products or therapies contained in such Combination is not sold separately in the U.S. during such accounting period, the Company and Administrative Agent shall mutually determine the Net Sales for the Product based on the relative contribution of the Product and the other products or therapies in the Combination in good faith.
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If the Company or any of its Affiliates recover monetary damages, settlement amounts or other monetary recovery with respect to the Product from a Third Party in a claim brought for infringement, misappropriation or other violation of any Intellectual Property, (A) such damages will be allocated first to the reimbursement of any expenses incurred by the Company or such Affiliates, as applicable, for bringing such action (including reasonable attorney’s fees) not already reimbursed from other damages awarded under the same action, and (B) any remaining amount of such damages will be reduced, if and to the extent applicable, to allocate recovered damages to Third Party licensors of such Intellectual Property (other than damages for lost royalties), only as required under any then pre-existing license or other agreements, then any other remaining amount of such damages, settlement amounts or other monetary recovery after application of (A) and (B) will be included as Net Sales.
“Oaktree Purchaser” shall mean any Purchaser that is an Affiliate or managed fund or account of Oaktree Capital Management, L.P.
“Oaktree Term Loan Facility” shall mean the Credit Agreement and Guaranty, dated as of April 19, 2022, by and among BioXcel Therapeutics, Inc., as 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 the administrative agent (as amended, amended and restated, supplemented or otherwise modified from time to time in accordance with the terms of the Intercreditor Agreement).
“Obligations” shall mean any and all obligations of the Company under the Transaction Documents.
“OFAC” shall have the meaning set forth in the definition of “Anti-Terrorism Laws.”
“Off-Balance Sheet Liability” of a Person shall mean (a) any repurchase obligation or liability of such Person with respect to accounts or notes receivable sold by such Person, (b) any indebtedness, liability or obligation under any so-called “synthetic lease” transaction entered into by such Person, or (c) any indebtedness, liability or obligation arising with respect to any other transaction which is the functional equivalent of or takes the place of borrowing but which does not constitute a liability on the balance sheet of such Person (other than operating leases).
“Option Right” shall have the meaning set forth in the definition of “Change of Control.”
“Ordinary Course” shall mean 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” shall mean, 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” shall mean, with respect to each Purchaser, Taxes imposed as a result of a present or former connection between such Purchaser and the jurisdiction imposing such
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Tax (other than connections arising from such Purchaser 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 Transaction Document, or sold or assigned an interest in any Transaction Document).
“Other Taxes” shall mean 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, this Agreement, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment.
[***].
“Patents” shall mean (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, xxxxx 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” shall mean the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)).
“Payment Recipient” shall have the meaning set forth in Section 8.14(a).
“PBGC” shall mean the United States Pension Benefit Guaranty Corporation referred to and defined in ERISA and any successor entity performing similar functions.
“Permits” shall mean licenses, Governmental Licenses, certificates, accreditations, Regulatory Approvals, other authorizations, registrations, permits, consents, clearances and approvals required in connection with the conduct of the Company’s or any Subsidiary’s business or to comply with any applicable Laws, and those issued by state governments for the conduct of the Company’s or any Subsidiary’s business.
“Permitted Bond Hedge Transaction” shall mean any call or capped call option (or substantively equivalent derivative transaction) relating to the Company’s common stock (or other securities or property following a merger event, reclassification or other change of the common stock of the Company) that is (A) purchased by the Company in connection with the issuance of any Permitted Convertible Debt, (B) settled in common stock of the Company (or such other securities or property), cash or a combination thereof (such amount of cash determined by reference to the price of the Company’s common stock or such other securities or property), and
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cash in lieu of fractional shares of common stock of the Company and (C) on terms and conditions customary for bond hedge transactions in respect of broadly distributed 144A convertible bond transactions as reasonably determined by the Company.
“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 two hundred seventy (270) days after the date of acquisition thereof and having the highest rating from either Standard & Poor’s Ratings Group or Xxxxx’x 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 (or the Equivalent Amount in other currencies), (iv) any investments compliant with the Company’s investment policy in the form provided to the Administrative Agent prior to the Effective Date, subject to amendments to such investment policy approved by the Administrative Agent in writing (such approval not to be unreasonably withheld, conditioned or delayed), and (v) any money market or similar funds that exclusively hold any of the foregoing.
“Permitted Convertible Debt” shall mean unsecured Indebtedness of the Company that is convertible into shares of common stock of the Company, cash or a combination thereof (such amount of cash determined by reference to the price of the Company’s common stock or such other securities or property), or cash in lieu of fractional shares of common stock of the Company.
“Permitted Holder” shall mean BioXcel LLC and its Affiliates.
“Permitted Indebtedness” shall mean:
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“Permitted Intercreditor Agreement” shall have the meaning set forth in Section 7.18.
“Permitted Licensing Agreement” shall mean (A) any outbound non-exclusive license for the use of the Intellectual Property of the Company or any of its Subsidiaries entered into in the Ordinary Course, (B) exclusive licenses limited (i) in territory solely with respect to a specific country or geographic region outside of the United States or (ii) to the promotion, manufacture or sale solely of products other than the Product, in each case (i) and (ii) for the use of the Intellectual Property of the Company or any of its Subsidiaries entered into in the Ordinary Course, (C) any promotion, manufacture or other collaborative arrangements with a third party in which the Company or any of its Subsidiaries grants a third party licenses under any of its Intellectual Property, but does not grant such third party the right to sell the Product; provided, that with respect to each such license described in clauses (A) through (C), the license (w) is negotiated at arm’s length for fair market value, (x) does not provide for a sale or assignment of any such Intellectual Property, (y) does not restrict the ability of the Company or any of its Subsidiaries, as applicable, to pledge, grant a security interest in or lien on any such Product Intellectual Property, and (z) is commercially reasonable (as determined by the Company in good faith) or (D) any license to which the Administrative Agent consents (such consent not to be unreasonably withheld).
“Permitted Liens” shall mean:
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“Permitted Priority Debt” shall mean (a) the Oaktree Term Loan Facility and (b) Indebtedness in an aggregate principal amount outstanding not to exceed, together with any Indebtedness in respect of the Oaktree Term Loan Facility, the greater of (x) $[***] and (y) [***]% of the Market Capitalization of the Company measured as of the date of incurrence thereof or at the option of the Company, as of the date of the entry into a binding commitment for the incurrence or issuance thereof (including in the case of Indebtedness to be incurred in connection with any acquisition, the date of the definitive agreement relating to such acquisition); provided, that the Yield of such Indebtedness shall not exceed the Yield Cap (determined as of the date of the incurrence thereof).
“Permitted Refinancing” shall mean, with respect to any Indebtedness permitted to be modified, refinanced, replaced, refunded, replaced, renewed or extended hereunder, any modification, refinancing, refunding, replacement, renewal or extension of such Indebtedness;
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provided that (i) the principal amount (or accreted value, if applicable) thereof does not exceed the principal amount (or accreted value, if applicable) of the Indebtedness so modified, refinanced, refunded, replaced, renewed or extended except by an amount equal to unpaid accrued interest and premium thereon plus other amounts paid, and fees and expenses incurred (including any original issue discount and commitment fees), in connection with such modification, refinancing, refunding, replacement, renewal or extension and by an amount equal to any existing revolving commitments unutilized thereunder, and (ii) the Indebtedness resulting from such modification, refinancing, replacement, refunding, renewal or extension has a final maturity date equal to or later than the final maturity date of, and has a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of, the Indebtedness being modified, refinanced, refunded, replaced, renewed or extended (other than customary bridge loans that are exchangeable into loans, notes or securities).
“Permitted Warrant Transaction” shall mean any call option, warrant or right to purchase (or substantively equivalent derivative transaction) relating to the Company’s common stock (or other securities or property following a merger event, reclassification or other change of the common stock of the Company) sold by the Company and with recourse to the Company only, substantially concurrently with any purchase by the Company of a Permitted Bond Hedge Transaction and settled in common stock of the Company, cash or a combination thereof (such amount of cash determined by reference to the price of the Company’s common stock or such other securities or property), and cash in lieu of fractional shares of common stock of the Company.
“Person” shall mean an individual, corporation, partnership, limited liability company, association, trust or other entity or organization, but not including a government or political subdivision or any agency or instrumentality of such government or political subdivision.
“Plan” shall mean 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 Company 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.
“Primary Obligor” shall have the meaning set forth in the definition of “Guarantee.”
“Product” shall mean the pharmaceutical product referred to as BXCL 501, which is a proprietary, orally dissolving thin film formulation of dexmedetomidine, a selective alpha-2a receptor agonist, as further described on Schedule 2, including any and all dosage forms, presentations, dosages and formations, including all improvements and modifications on or to the foregoing, in each case in which dexmedetomidine is the sole therapeutically active pharmaceutical ingredient, across all marketed indications in the United States.
“Product Authorizations” shall mean any and all approvals of any Governmental Authority (including the NDA, investigational new drug applications, Product Standards, supplements, amendments, pre- and post-approvals, governmental price and reimbursement approvals and approvals of applications for regulatory exclusivity), in each case, necessary to be held or maintained by, or for the benefit of, the Company or any of its Subsidiaries or its Affiliates for the
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ownership, use, Development and/or Commercialization of the Product or for any Product Commercialization and Development Activities with respect thereto in the United States.
“Product Commercialization and Development Activities” shall mean, with respect to the 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, in respect of licensing, royalty milestone or similar payments), or any similar or other activities the purpose of which is to commercially exploit the Product in the United States.
“Product Intellectual Property” shall mean Intellectual Property issued, registered, or subject to a pending application for issuance or registration in, or otherwise arising under the laws of, the United States that (a) is Controlled by the Company or any of its Subsidiaries and (b) claims or covers the Product (or the manufacture or use thereof) or any Product Commercialization and Development Activities, including any non-published and proprietary information or data contained in any NDA for the Product.
“Product Patent” shall mean any Patent that constitutes Product Intellectual Property.
“Product Standards” shall mean all safety, quality and other specifications and standards applicable to the Product, including all pharmaceutical, biological and other standards promulgated by any of the organizations that create, sponsor or maintain safety, quality or other standards, including ISO, ANSI, CEN and SCC and the like.
“Prohibited Payment” shall mean 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 with a government or instrumentality thereof to affect or influence any act or decision of such government or instrumentality.
“Proportionate Share” shall mean, with respect to any Purchaser, the percentage obtained by dividing (i) the sum of the Commitments then in effect and the outstanding Funded Amount of such Purchaser by (ii) the sum of the Commitments then in effect and the outstanding Funded Amount of all Purchasers.
“Purchase Price” shall mean, with respect to each tranche, the Tranche A Purchase Price, the Tranche B Purchase Price and the Tranche C Purchase Price, as applicable.
“Purchasers” shall have the meaning set forth in the first paragraph hereof, and shall also include any permitted successors or assigns thereof.
“Purchasers Indemnified Party” shall have the meaning set forth in Section 7.05(a).
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“Put Option” shall have the meaning set forth in Section 5.05(a).
“Put Option Closing Date” shall have the meaning set forth in Section 5.05(a).
“Put Option Event” shall mean any one of the following events:
“Put Option Trigger” shall have the meaning set forth in Section 5.05(a).
“Put/Call Price” shall mean, as of any date of determination, the greater of (X) the Tail Royalty Put/Call Price and (Y) an amount sufficient that, giving effect to the payment of the Put/Call Price and all other payments made by the Company to the Purchasers pursuant to this Agreement, (i) the MOIC equals 1.225x if such date is before the one-year anniversary of the Tranche A Funding Date, (ii) the MOIC equals 1.375x if such date is on or after the one-year anniversary of the Tranche A Funding Date and before the two-year anniversary of the Tranche A Funding Date, (iii) the MOIC equals 1.525x if such date is on or after the two-year anniversary of the Tranche A Funding Date and before the three-year anniversary of the Tranche A Funding Date, and (iv) the MOIC equals 1.750x if such date is on or after the three-year anniversary of the Tranche A Funding Date.
“QIA Purchaser” shall mean any Purchaser that is an Affiliate of Qatar Investment Authority.
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“Qualified Equity Interest” shall mean, with respect to any Person, any Equity Interest of such Person that is not a Disqualified Equity Interest.
“Qualified Plan” shall mean 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 the Company or any ERISA Affiliate thereof or to which the Company 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.
“Quarterly Report” shall mean, with respect to the relevant Fiscal Quarter of the Company, a report showing the Revenue Interest Payment due to the Administrative Agent for such Fiscal Quarter, which report shall include a calculation of Net Sales, reconciled, to the extent applicable, with the Company’s consolidated statements of operations; provided that, with respect to Net Sales by any Licensee, if the Company receives the applicable reporting from such Licensee necessary for the Company to determine such Licensee’s Net Sales fewer than fifteen Business Days prior to the due date for a Quarterly Report, the Company may, at its option, include such Net Sales on the Quarterly Report for the subsequent Fiscal Quarter and pay any Revenue Interest Payments or Tail Royalty Payments on such Net Sales concurrently with delivery of such subsequent Quarterly Report in accordance with Section 2.02(d).
“Referral Source” shall have the meaning set forth in Section 3.07(b).
“Registered Product IP” shall mean all Product Intellectual Property that is issued by, registered with, renewed by or the subject of a pending application before any Governmental Authority or domain name registrar.
“Regulatory Agency” shall mean a Governmental Authority with responsibility for the approval of the manufacture, use, storage, import, export, transport, or Commercialization of the Product in the United States.
“Regulatory Approval” shall mean all approvals, product and/or establishment licenses, registrations, certificates, permits, authorizations and supplements thereto, as well as associated materials (including the product dossier) of any Regulatory Agency necessary for the manufacture, use, storage, import, export, transport, or Commercialization of the Product in the United States.
“Revenue Interest Payment(s)” shall have the meaning set forth in Section 2.02(a).
“Revenue Interest Period” shall mean the period from, and including, the Tranche A Funding Date through, and including, September 30, 2032, unless earlier terminated upon (i) the Purchasers’ exercise of the Put Option or the Company’s exercise of the Call Option, in each case upon payment of the Put/Call Price, (ii) the termination of this Agreement by the Company pursuant to Section 6.01 or (iii) the date on which the Company has made payments to the Purchasers in an amount equal to the Hard Cap; provided that the Revenue Interest Period shall be reinstated in the event that the Hard Cap is no longer met after giving effect to an increase in the Funded Amount.
“Sanction” shall mean any international economic or financial sanction or trade embargo imposed, administered or enforced from time to time by the United States Government (including,
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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 Company is located or conducts business.
“Sanctioned Person” shall mean, at any time, (i) any Person listed in any Sanctions-related list of designated Persons maintained by the United States Government (including 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).
“Secured Parties” shall mean the Purchasers, the Administrative Agent and any of their respective permitted transferees or assigns.
“Security Agreement” shall mean the Security Agreement between the Company and the Administrative Agent providing for, among other things, the grant by the Company in favor of the Administrative Agent, for the benefit of the Secured Parties, of a valid continuing, perfected lien on and security interest in, the Collateral, which Security Agreement shall be substantially in the form of Exhibit A.
“Subsidiary” shall mean, with respect to any Person, any other Person controlled by such first Person, directly or indirectly, through one or more intermediaries. Unless otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of the Company.
“Tail Royalty Condition” shall mean the occurrence of the Tranche B Funding Condition.
“Tail Royalty Payment” shall have the meaning set forth in Section 2.02(b).
“Tail Royalty Percentage” shall mean 0.375%.
“Tail Royalty Period” shall mean the period on and commencing from the earlier of (i) the date on which the Purchasers have received payments from the Company pursuant to this Agreement in an amount equal to the Hard Cap (including after giving effect to the funding of Tranche C) and (ii) September 30, 2032, through and including March 31, 2036; provided that the Tail Royalty Period shall be suspended in the event that the Hard Cap is no longer met after giving effect to an increase in the Funded Amount and shall not recommence until the Hard Cap is reached again; provided further that the Tail Royalty Period shall not commence unless and until the Tail Royalty Condition has occurred.
“Tail Royalty Put/Call Price” shall mean, as of any date of determination, (A) prior to the third anniversary of the Effective Date, $0 and (B) on or after the third anniversary of the Effective Date, an amount sufficient that giving effect to the payment of the Put/Call Price and all other payments made by the Company to the Purchasers under this Agreement, the MOIC equals 2.25x.
“Tax” or “Taxes” shall mean any federal, state, local or foreign tax, levy, impost, duty, assessment, fee, deduction or withholding (including backup withholding) or other charge, including all excise, sales, use, value added, transfer, stamp, documentary, filing, recordation and
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other fees imposed by any taxing authority (and interest, fines, penalties and additions related thereto).
“Tax Return” shall mean any report, return, form (including elections, declarations, statements, amendments, claims for refund, schedules, information returns or attachments thereto) or other information supplied or required to be supplied to a Governmental Authority with respect to Taxes.
“Term” shall have the meaning set forth in Section 6.01.
“Term Sheet” shall mean the Letter of Intent between the Company and Oaktree Capital Management, L.P., dated December 7, 2021, as amended on February 24, 2022.
“Third Party” shall mean any Person other than the Purchasers or the Company.
“Title IV Plan” shall mean 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 the Company or any ERISA Affiliate thereof or to which the Company 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.
“Trade Secrets” shall mean 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, clinical 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.
“Trademarks” shall mean 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 xxxx registrations, and applications for trademark and service xxxx registrations, whether or not registered, and any and all common law rights thereto, including (i) all renewals of trademark and service xxxx 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.
“Trading Day” means a day on which the Company’s common Equity Interests are traded on a Trading Market or, if the Company’s common Equity Interests are not traded on a Trading Market, then on the principal securities exchange or securities market on which the Company’s common Equity Interests are then traded.
“Trading Market” means any market or exchange of The Nasdaq Stock Market LLC or the New York Stock Exchange.
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“Tranche A” shall mean a funding in the amount of the Tranche A Purchase Price.
“Tranche A Funding Condition” shall mean the occurrence of each of (i) BXCL 501 FDA Approval, (ii) the funding date of the Tranche A Term Loans (as defined in the Oaktree Term Loan Facility), and (iii) June 30, 2022.
“Tranche A Funding Date” shall have the meaning set forth in Section 2.03(c).
“Tranche A Purchase Price” shall mean $30,000,000.
“Tranche B” shall mean a funding in the amount of the Tranche B Purchase Price.
“Tranche B Funding Condition” shall mean the occurrence of each of (i) [***], (ii) Net Sales exceeding $[***] during any consecutive twelve (12) month period, (iii) [***] and (iv) [***].
“Tranche B Funding Date” shall have the meaning set forth in Section 2.03(c).
“Tranche B Purchase Price” shall mean $45,000,000.
“Tranche C” shall mean a funding of the Tranche C Purchase Price.
“Tranche C Funding Condition” shall mean the occurrence of each of (i) [***], (ii) Net Sales exceeding $[***] during any consecutive twelve (12) month period, (iii) [***] and (iv) [***].
“Tranche C Funding Date” shall have the meaning set forth in Section 2.03(c).
“Tranche C Purchase Price” shall mean $45,000,000.
“Transaction Documents” shall mean, collectively, this Agreement, the Security Agreement, the Intercreditor Agreement and any related ancillary documents or agreements (provided, for the avoidance of doubt, that any documents related to the Oaktree Term Loan Facility other than the Intercreditor Agreement shall not be Transaction Documents).
“UCC” shall mean the Uniform Commercial Code (or any similar or equivalent legislation) as in effect in any applicable jurisdiction.
“UCC Financing Statements” shall mean the UCC-1 financing statements, in form and substance reasonably satisfactory to the Administrative Agent and the Purchasers, that shall be filed by the Purchasers at or promptly following the Effective Date, as well as any additional UCC-1 financing statements or amendments thereto as reasonably requested from time to time, to perfect the Purchasers’ security interest in the Collateral.
“United States” shall mean the United States of America (including the District of Columbia, its territories and Puerto Rico).
“VWAP” means, for any date, the price determined by the first of the following clauses that applies: (i) if the Company’s common Equity Interests are then listed or quoted on a Trading Market, the daily volume weighted average price of the Company’s common Equity Interests for
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such date (or the nearest preceding date) on the Trading Market on which the Company’s common Equity Interests are then listed or quoted as reported by Bloomberg L.P. (based on a Trading Day from 9:30 a.m. (New York City time) to 4:00 p.m. (New York City time)), (ii) if the Company’s common Equity Interests are not then listed on a Trading Market or quoted for trading on the OTC Bulletin Board and if prices for the Company’s common Equity Interests are then reported in the “Pink Sheets” published by OTC Markets Group Inc. (or a similar organization or agency succeeding to its functions of reporting prices), the most recent bid price per share of the Company’s common Equity Interests so reported or (iii) in all other cases, the fair market value of a share of the Company’s common Equity Interests as determined by an independent nationally recognized investment banking, accounting or valuation firm selected in good faith by the Company and reasonably acceptable to the Administrative Agent, the fees and expenses of which shall be paid by the Company.
“Weighted Average Life to Maturity” shall mean, when applied to any Indebtedness at any date, the number of years obtained by dividing: (a) the sum of the products obtained by multiplying (i) the amount of each then remaining installment, sinking fund, serial maturity or other required payments of principal, including payment at final maturity, in respect thereof, by (ii) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment; by (b) the then outstanding principal amount of such Indebtedness.
“Withdrawal Liability” shall mean, 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.
“Yield” shall mean, with respect to any Permitted Priority Debt, the yield thereof, whether in the form of interest rate, margin, original issue discount, upfront fees, an interest rate benchmark floor, or otherwise, in each case, incurred or payable by the Company generally to all the lenders or holders of such Indebtedness (excluding for the avoidance of doubt any warrants or other equity interests issued in connection therewith and any prepayment premiums payable upon the prepayment thereof); provided that original issue discount and upfront fees shall be equated to interest rate assuming a four-year (4-year) life to maturity (or, if less, the stated life to maturity at the time of its incurrence of the applicable Indebtedness).
“Yield Cap” shall mean the Yield applicable to the Oaktree Term Loan Facility plus [***] basis points.
Upon the terms and subject to the conditions set forth in this Agreement, including the satisfaction of the Tranche A Funding Condition, the Company agrees to sell, assign, transfer and convey to the Purchasers, and the Purchasers agree, severally and not jointly, to purchase from the Company, free and clear of all Liens (except Permitted Liens), all of the Company’s rights and interests in and to the Assigned Interests and the Assigned Tail Royalty Interests on the Tranche
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A Funding Date, in accordance with such Purchasers’ Proportionate Share as set forth on Schedule 1. The Purchasers’ ownership interest in the Assigned Interests and Assigned Tail Royalty Interests so acquired shall vest immediately and automatically upon the Company’s receipt of payment of the Tranche A Purchase Price for such Assigned Interests and Assigned Tail Royalty Interests, pursuant to Section 2.03(b), subject to the termination provisions of Section 6.01.
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Notwithstanding any provision in this Agreement or any other writing to the contrary, the Purchasers are acquiring only the Assigned Interests and the Assigned Tail Royalty Interests and are not assuming any liability or obligation of the Company or any of its Affiliates of whatever nature, whether presently in existence or arising or asserted hereafter, whether under any Transaction Document or otherwise (the “Excluded Liabilities and Obligations”). The Purchasers expressly do not assume or agree to be responsible for any Excluded Liabilities and Obligations and all such liabilities and obligations shall be retained by and remain solely obligations and liabilities of the Company or its Affiliates.
The Company hereby represents and warrants to the Administrative Agent and the Purchasers, as of the Effective Date and as of each Applicable Funding Date with respect to Section 3.01 through Section 3.05 only, the following:
Each of the Company and its Subsidiaries is a corporation duly incorporated, validly existing and in good standing under the laws of its respective jurisdiction of formation and has all corporate powers and all licenses, authorizations, consents and approvals required to carry on its respective business as now conducted and as proposed to be conducted in connection with the transactions contemplated by the Transaction Documents. Each of the Company and its
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Subsidiaries is duly qualified to do business as a foreign corporation and is in good standing in every jurisdiction in which the failure to do so would be reasonably expected to have a Material Adverse Effect. The Company has no direct or indirect Subsidiaries, other than those disclosed to the Purchaser in writing on or prior to the date hereof (including as disclosed in its public filings with the Securities and Exchange Commission).
The Company has all necessary power and authority to enter into, execute and deliver the Transaction Documents and to perform all of the obligations to be performed by it hereunder and thereunder and to consummate the transactions contemplated hereunder and thereunder. The Transaction Documents have been duly authorized, executed and delivered by the Company and each Transaction Document constitutes the valid and binding obligation of the Company, enforceable against the Company in accordance with their respective terms, except as such enforceability may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or similar laws of general applicability affecting the enforcement of creditors’ rights and (ii) the application of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
None of the execution, delivery and performance by the Company of the Transaction Documents, or the consummation by the Company of the transactions thereunder, (i) requires any Governmental Approval of, registration or filing with, or any other action by, any Governmental Authority or any other Person, except for (x) such as have been obtained or made and are in full force and effect and (y) filings and recordings in respect of perfecting or recording the Liens created pursuant to the Security Agreement, (ii) will violate (1) any Law, (2) any Organic Document of the Company or any of its Subsidiaries or (3) any order of any Governmental Authority, that in the case of clause (ii)(1) or clause (ii)(3), individually or in the aggregate, would reasonably be expected to result in a Material Adverse Effect, or (iii) will result in the creation or imposition of any Lien (other than Permitted Liens) on any asset of the Company or any of its Subsidiaries.
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Except for those liabilities (a) identified in the Financial Statements (including the notes thereto), (b) incurred by the Company in the Ordinary Course since December 31, 2021, or (c) in connection with the Obligations under the Transaction Documents, there are no material liabilities of the Company or its Subsidiaries related to the Product, of any kind whatsoever, whether accrued, contingent, absolute, determined or determinable.
Assuming consummation of the transactions contemplated by the Transaction Documents, (a) the present fair saleable value of the Company’s and its Subsidiaries’ assets on a consolidated basis is greater than the total amount of liabilities of the Company and its Subsidiaries as such liabilities mature, (b) the Company and its Subsidiaries, taken as a whole, do not have unreasonably small capital with which to engage in its business, and (c) the Company and its Subsidiaries, taken as a whole, have not incurred, nor do they have present plans to or intend to incur, debts or liabilities beyond their ability to pay such debts or liabilities as they become absolute and matured.
Other than as disclosed on Schedule 3.08: (a) there is no action, suit, arbitration proceeding, claim, investigation or other proceeding pending or, to the knowledge of the Company, threatened in writing against the Company or its Subsidiaries or any governmental inquiry pending or, to the knowledge of the Company, threatened in writing against the Company or its Subsidiaries, in each case which would question the validity of, or would adversely affect the transactions contemplated by any of the Transaction Documents in any material respect; and (b) there is no action, suit, arbitration proceeding, claim, investigation or other proceeding pending or, to the knowledge of the Company, threatened in writing against the Company, its Subsidiaries or, to the knowledge of
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the Company, any other Person relating to the Product, the Product Intellectual Property, the Regulatory Approvals, the Net Sales, the Assigned Interests or the Assigned Tail Royalty Interests.
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Except pursuant to the Intercreditor Agreement or any Permitted Intercreditor Agreement as in effect from time to time, the claims and rights of Purchaser created by any Transaction Document in and to the Assigned Interests and Assigned Tail Royalty Interests are not and shall not be contractually subordinated in right of payment to any creditor of the Company or any other Person.
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Except as set forth on Schedule 3.14, neither the Company nor its Subsidiaries is in material breach of or in material default under any Material Contract. To the knowledge of the Company, nothing has occurred and no condition exists that would permit any other party thereto to terminate any Material Contract. Neither the Company nor its Subsidiaries has received any notice or, to the knowledge of the Company, any threat of termination of any such Material Contract. To the knowledge of the Company, no other party to a Material Contract is in breach of or in default under such Material Contract. All Material Contracts are valid and binding on the Company or its Subsidiaries and, to the knowledge of the Company, on each other party thereto, and are in full force and effect.
The Company and its Subsidiaries have not taken any action that would entitle any Person to any commission or broker’s fee in connection with this Agreement; provided that, for the avoidance of doubt, fees payable to the Company’s bankers and financial advisers in their capacities as such do not constitute commission or broker’s fees.
Schedule 3.16 sets forth, as of the Effective Date, a complete and correct list of, and that separately identifies, (i) all Title IV Plans, (ii) all Multiemployer Plans and (iii) all material Benefit Plans. Each Benefit Plan, and each trust thereunder, intended to qualify for tax exempt status under Section 401 or 501 of the Code or other Laws so qualifies. Except for those that would not, in the aggregate, reasonably be expected to result in a Material Adverse Effect, (x) each Benefit Plan is in compliance with applicable provisions of ERISA, the Code and other Laws, (y) there are no existing or pending (or to the knowledge of the Company or any of its Subsidiaries, threatened) claims (other than routine claims for benefits in the normal course), sanctions, actions, lawsuits or other proceedings or investigation involving any Benefit Plan to which the Company or any Subsidiary thereof incurs or otherwise has or would have an obligation or any liability or claim and (z) no ERISA Event is reasonably expected to occur. The Company and each of its ERISA Affiliates has met all applicable requirements under the ERISA Funding Rules with respect to each Title IV Plan, and no waiver of the minimum funding standards under the ERISA Funding Rules has been applied for or obtained. As of the most recent valuation date for any Title IV Plan, the funding target attainment percentage (as defined in Section 430(d)(2) of the Code) is at least sixty
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percent (60%), and neither the Company nor any of its ERISA Affiliates knows of any facts or circumstances that would reasonably be expected to cause the funding target attainment percentage to fall below sixty percent (60%) as of the most recent valuation date. As of the Effective Date, no ERISA Event has occurred in connection with which obligations and liabilities (contingent or otherwise) remain outstanding. No ERISA Affiliate would have any Withdrawal Liability as a result of a complete withdrawal from any Multiemployer Plan on the date this representation is made.
Set forth on Schedule 3.17(a) is a complete and correct list of all Indebtedness of the Company and each of its Subsidiaries (other than intercompany indebtedness) outstanding as of the Effective Date. Set forth on Schedule 3.17(b) is a complete and correct list of all Liens granted by the Company and each of its Subsidiaries with respect to their respective property and outstanding as of the Effective Date.
The Company has not experienced any breach of security or unauthorized access by third parties of any personally identifiable information from any individuals, including, without limitation, any customers, prospective customers, employees or other Third Parties that is in its possession, custody, or control, in each case except as would not reasonably be expected to have a Material Adverse Effect.
The Company and each of its Subsidiaries has timely filed or caused to be filed all income and other Tax returns and reports required to have been filed and has paid or caused to be paid all Taxes required to have been paid by it, except (a) Taxes that are being contested in good faith by appropriate proceedings and for which the Company or such Subsidiary, as applicable, has set aside on its books adequate reserves with respect thereto in accordance with GAAP or (b) to the extent that the failure to do so would not reasonably be expected to have an Material Adverse Effect.
None of the reports, financial statements, certificates or other written information furnished by or on behalf of the Company or any of its Subsidiaries to the Purchaser in connection with the negotiation of this Agreement and the other Transaction Documents or delivered hereunder or thereunder (as modified or supplemented by other information so furnished) contains any material misstatement of material fact or omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that, with respect to projected financial information, the Company represents only that such information was prepared in good faith based upon assumptions believed to be reasonable at the time, and it being understood that such projected financial information and all other forward
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looking information are not to be viewed as facts and that actual results during the period or periods covered thereby may differ from such projected results and that the differences may be material.
Neither the Company nor any of its Subsidiaries, nor, to the knowledge of the Company, any of their respective directors, officers or employees, while acting on behalf of the Company, has directly or, to the knowledge of the Company, indirectly (i) materially violated or is in material violation of any applicable anti-corruption Law, or (ii) made, offered to make, promised to make or authorized the payment or giving of, directly or, to the knowledge of the Company, indirectly, any Prohibited Payment.
Each Purchaser, severally and not jointly, represents and warrants to the Company, solely with respect to such Purchaser, the following:
Such Purchaser is a duly formed and validly existing (x) corporate entity under the laws of the United States or (y) limited liability company under the laws of the State of Qatar.
Such Purchaser has all necessary power and authority to enter into, execute and deliver the Transaction Documents and to perform all of the obligations to be performed by it hereunder and
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thereunder and to consummate the transactions contemplated hereunder and thereunder. The Transaction Documents have been duly authorized, executed and delivered by such Purchaser and each Transaction Document constitutes the valid and binding obligation of such Purchaser, enforceable against such Purchaser in accordance with their respective terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally or general equitable principles.
Such Purchaser has not taken any action that would entitle any Person to any commission or broker’s fee in connection with the transactions contemplated by the Transaction Documents.
Neither the execution and delivery of this Agreement or any other Transaction Document to which such Purchaser is a party nor the performance or consummation of the transactions contemplated hereby or thereby will: (a) contravene, conflict with, result in a breach or violation of, constitute a default under, or accelerate the performance provided by, in any material respects any provisions of: (i) any law, rule, ordinance or regulation of any Governmental Authority, or any judgment, order, writ, decree, permit or license of any Governmental Authority, to which such Purchaser or any of its assets or properties may be subject or bound; or (ii) any contract, agreement, commitment or instrument to which such Purchaser is a party or by which such Purchaser or any of its assets or properties is bound or committed; (b) contravene, conflict with or result in a breach or violation of any provisions of the organizational or constitutional documents of such Purchaser; or (c) require any notification to, filing with, or consent of, any Person or Governmental Authority, except, in the case of the foregoing clauses (a) or (c), for any such breaches, defaults or other occurrences that would not, individually or in the aggregate, have a material adverse effect on the ability of such Purchaser to perform any of their obligations under the Transaction Documents.
Such Purchaser is not a Sanctioned Person.
From the date hereof through and including the end of the Revenue Interest Period and the Tail Royalty Period, if any, the following covenants shall apply:
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It is understood and agreed that documents required to be delivered pursuant to this Section 5.01(g) shall be deemed delivered on the date that such documents are publicly available on “XXXXX.”
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The Company shall, and shall cause its Subsidiaries to, comply with all material terms and conditions of and fulfill all of its obligations under all the Material Contracts, except for such noncompliance which would not reasonably be expected to give rise to a Material Adverse Effect.
Except as required by law or any Governmental Authority (including the Securities and Exchange Commission) or except with the prior written consent of the other party (which consent shall not be unreasonably withheld, conditioned or delayed), no party shall issue any press release or make any other public disclosure with respect to the transactions contemplated by this Agreement or any other Transaction Document; provided, however, that the Company and the Administrative Agent may jointly prepare a press release for dissemination promptly following the Effective Date and each Applicable Funding Date and the Company may file a current report on Form 8-K (or any other public announcement using substantially the same text as the press release or Form 8-K) with respect to the transactions contemplated by this Agreement.
(i) In the event that a Put Option Event shall occur at any time during the period from the Tranche A Funding Date to and including the end of the Term, the Administrative Agent, at the direction of the Purchasers, shall have the right, but not the obligation (the “Put Option”), exercisable within sixty (60) days after the earlier of the occurrence of a Put Option Event or the Administrative Agent’s receipt of written notice from the Company of a Put Option Event (a “Put Option Trigger”) to require the Company to repurchase from each Purchaser its Assigned Interests and Assigned Tail Royalty Interests at the Put/Call
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Price; provided that during the occurrence and continuation of a Bankruptcy Event (an “Automatic Put Option Trigger”), each Purchaser shall be deemed to have automatically and simultaneously elected to have the Company repurchase from each Purchaser the Assigned Interests and the Assigned Tail Royalty Interests for the Put/Call Price in cash and the Put/Call Price shall be immediately due and payable without any further action or notice by any Party. In the event the Purchasers elect to exercise their Put Option (other than pursuant to an Automatic Put Option Trigger), the Administrative Agent shall deliver written notice to the Company specifying the closing date, which date shall be forty-five (45) days from the date of such notice (or such earlier date as such Purchaser and the Company may agree, the “Put Option Closing Date”), which notice must be given within sixty (60) days of the Put Option Trigger. On the Put Option Closing Date, the Company shall repurchase from each Purchaser its Assigned Interests and Assigned Tail Royalty Interests at the Put/Call Price in cash, the payment of which shall be made by wire transfer of immediately available funds to the Administrative Agent for the account of the Purchasers.
(ii)For the avoidance of doubt, the Put/Call Price shall automatically be due and payable upon an Automatic Put Option Trigger, as if such payments (each, an “Automatic Put Payment”) were voluntarily prepaid and shall constitute part of the Obligations, whether due to acceleration pursuant to the terms of this agreement, by operation of law or otherwise (including, without limitation, on account of any bankruptcy filing), in view of the impracticability and extreme difficulty of ascertaining the actual amount of damages to the Purchasers or profits lost by the Purchasers as a result of such acceleration, and by mutual agreement of the Parties as to a reasonable estimation and calculation of the lost profits or damages of the Purchasers as a result thereof. Any Automatic Put Payment under Section 5.05(a)(i) above shall be presumed to be the liquidated damages sustained by each Purchaser as the result of the early termination, acceleration or prepayment and the Company agrees that such Automatic Put Payments are reasonable under the circumstances currently existing. In the event an Automatic Put Payment is determined not to be due and payable by order of any court of competent jurisdiction, including, without limitation, by operation of the Bankruptcy Code, despite an Automatic Put Option Trigger having occurred, such Automatic Put Payment shall nonetheless constitute Obligations under this Agreement for all purposes hereunder. The Company hereby waives the provisions of any present or future statute or law that prohibits or may prohibit the collection of the prepayment fee and any defense to payment, whether such defense may be based in public policy, ambiguity, or otherwise. The Company, the Administrative Agent and the Purchasers acknowledge and agree that any Automatic Put Payment due and payable in accordance with this Agreement shall not constitute unmatured interest, whether under Section 5.02(b)(3) of the Bankruptcy Code or otherwise. The Company further acknowledges and agrees, and waives any argument to the contrary, that payment of such amount does not constitute a penalty or an otherwise unenforceable or invalid obligation. The Company expressly agrees that (i) the Automatic Put Payments are reasonable and is the product of an arm’s-length transaction between sophisticated business people, ably represented by counsel, (ii) any Automatic Put Payment shall be payable notwithstanding the then prevailing market rates at the time payment is made, (iii) there has been a course of conduct between the Purchasers and the Company giving specific consideration in this transaction for such agreement to pay the Automatic Put
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Payment, (iv) the Company shall be estopped hereafter from claiming differently than as agreed to in this Section 5.05(a), (v) the Company’s agreement to pay any Automatic Put Payment is a material inducement to the Purchasers to fund the Purchase Price, and (vi) the Automatic Put Payments represent a good faith, reasonable estimate and calculation of the lost profits, losses or other damages of the Purchasers and that it would be impractical and extremely difficult to ascertain the actual amount of damages to the Purchasers or profits lost by the Purchasers as a result of such event.
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The Company shall not, without the prior written consent of the Purchasers:
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The Company shall use proceeds received from the Purchasers in support of the Development and Commercialization of the Product and for other general corporate purposes.
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The Company will, and will cause each of its Subsidiaries to, (i) comply with all Laws (including Anti-Terrorism Laws and Sanctions) applicable to it and its business activities in all material respects and (ii) comply in all material respects with all Healthcare Laws and Governmental Licenses and Product Authorizations applicable to it and its business activities. Within 30 days after the Effective Date, the Company shall institute (if not already in effect) and thereafter maintain in effect and enforce policies and procedures reasonably designed to promote compliance by the Company, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Terrorism Laws and Sanctions.
The Company shall, and shall cause each of its Subsidiaries to, maintain and preserve all of its assets and properties relating to the Product or Product Commercialization and Development Activities, or that are otherwise necessary or useful in the conduct of its business in good working order and condition in accordance with the general practice of other Persons of similar character and size, ordinary wear and tear and damage from casualty or condemnation excepted.
The Company shall, and shall cause each of its Subsidiaries to, obtain and maintain all Governmental Licenses necessary for the execution, delivery and performance of the Transaction Documents, the consummation of the transactions thereunder or the operation and conduct of its business and ownership of its properties (including its Product Commercialization and Development Activities), except where the failure to do so would not reasonably be expected to have a Material Adverse Effect.
With respect to the Product and all Product Commercialization and Development Activities, the Company will (directly or indirectly), and will cause each of its Subsidiaries (to the extent applicable) to, (i) use Commercially Reasonable Efforts to maintain in full force and effect all Regulatory Approvals, Material Contracts and other rights, interests or assets (whether tangible or intangible) reasonably necessary for the operations of such Person’s business, except as would not reasonably be expected to have a Material Adverse Effect, (ii) maintain in full force and effect, and pay all costs and expenses relating to, such Regulatory Approvals, Material Contracts owned, used or controlled by the Company or any such Subsidiary that are used in or necessary for any related Product Commercialization and Development Activities, except as would not be reasonably expected to have a Material Adverse Effect and (iii) promptly after obtaining
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knowledge thereof, notify the Purchasers of any claim by any Person that the conduct of the business of the Company or any of its Subsidiaries in connection with any Product Commercialization and Development Activities, has infringed, violated or misappropriated any Intellectual Property of such Person, where such claim could reasonably be expected to have a Material Adverse Effect.
The Company shall comply, and shall cause each of its Subsidiaries to comply, with the provisions of ERISA with respect to any Plans to which the Company or such Subsidiary is a party as an employer in all material respects.
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Each of the Company and its Subsidiaries shall pay and discharge all its obligations and liabilities (a) prior to the date on which penalties attach thereto, with respect to all material federal, state and other material Taxes imposed upon it or its properties or assets, unless the same are being contested in good faith by appropriate proceedings diligently conducted and adequate reserves in accordance with GAAP are being maintained by the Company or its Subsidiaries and (b) as the same shall become due and payable, all lawful claims which, if unpaid, would by Law become a Lien upon any Collateral (other than Permitted Liens).
To the extent that the Company or any Subsidiary of the Company receives any amount of proceeds from the Net Sales into an account other than a Collection Account, the Company shall promptly (and in any event within one (1) Business Day after identification thereof) deposit such proceeds, or shall promptly take all actions necessary to cause such proceeds to be deposited, into a Collection Account.
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In the event of the termination of this Agreement pursuant to Section 6.01, (a) this Agreement shall forthwith become void and have no effect without any liability on the part of any party hereto or its Affiliates, directors, officers, stockholders, partners, managers or members other than the provisions of this Section 6.02, Section 5.03, Section 7.05 and Section 7.19 hereof, which shall survive any termination as set forth in Section 6.01, and (b) upon the payment and performance in full of all Obligations hereunder (other than contingent indemnification claims for which no claim has been made), the security interests in the Collateral created by any Transaction Document shall be automatically released. Nothing contained in this Section 6.02 shall relieve any party from liability for any breach of this Agreement. In connection with any such termination and release, the Administrative Agent and the Purchasers shall execute and deliver to the Company all documents the Company shall reasonably request to evidence such termination and release.
All representations and warranties made herein and in any other Transaction Document, any certificates or in any other writing delivered pursuant hereto or thereto shall survive the execution and delivery of this Agreement and shall continue to survive until the termination of this Agreement in accordance with Article VI.
Notwithstanding anything to the contrary in this Agreement, in no event shall either party be liable for special, indirect, incidental, punitive or consequential damages of the other party,
59
whether or not caused by or resulting from the actions of such party or the breach of its covenants, agreements, representations or warranties hereunder, even if such party has been advised of the possibility of such damages.
The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. The Company shall not be entitled to assign any of its obligations and rights under the Transaction Documents without the prior written consent of each Purchaser, and any such assignment in violation of this Section 7.04 shall be null and void; provided that the foregoing shall not apply to any assignment by merger or operation of law provided that the successor or surviving entity, if not the Company, shall agree in writing to be bound by all the provisions of this Agreement. Solely upon the consent of the Company (which consent may not be unreasonably withheld, delayed or conditioned), each Purchaser may assign any of its obligations or rights under the Transaction Documents without restriction; provided that the Purchasers may assign any of its rights and obligations to (i) an Affiliate or (ii) Oaktree Capital Management, L.P. or any of its managed funds or accounts, or any Affiliate of the foregoing, without the consent of the Company.
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Each party acknowledges and agrees that, other than the representations and warranties specifically contained in any of the Transaction Documents, there are no representations or warranties of either party or any other Person either expressed or implied with respect to the Assigned Interests, Assigned Tail Royalty Interests or the transactions contemplated hereby. Without limiting the foregoing, each of the Purchasers acknowledges and agrees that (a) such Purchaser and its Affiliates, together with its and its Affiliates’ representatives, have made their own investigation of the Product (including the Product Intellectual Property) and are not relying on any implied warranties or upon any representation or warranty whatsoever as to the future amount or potential amount of the Assigned Interests or Assigned Tail Royalty Interests or as to the creditworthiness of Company and (b) except as expressly set forth in any representation or warranty in a Transaction Document, such Purchaser shall have no claim or right to indemnification pursuant to Section 7.05 (or otherwise) with respect to any information, documents or materials furnished to such Purchaser, any of its Affiliates, or any of its or its Affiliates’ representatives, including any information, documents or material made available to such Purchaser and its Affiliates and its Affiliates’ representatives in any data room, presentation, interview or any other form relating to the transactions contemplated hereby.
The Purchasers and the Company acknowledge and agree that, for U.S. federal and applicable state and local income tax purposes, (i) the Purchasers’ payment of the Purchase Price to the Company under Tranche A, Tranche B, and Tranche C and the associated rights and obligations under this Agreement shall collectively be treated as the issuance of three debt instruments (each, a “Tax Debt Instrument”), with each Tax Debt Instrument issued on the date that the Purchasers fund the applicable portion of the Purchase Price pursuant to this Agreement, (ii) each Tax Debt Instrument shall be treated as a contingent payment debt instrument that is subject to the rules set forth in Treasury Regulations Section 1.1275-4, (iii) the Purchasers shall not be treated as the owner of the Assigned Interests and the Assigned Tail Royalty Interests or any portion thereof, and (iv) except for any payments with respect to the Assigned Tail Royalty Interests, none of the payments that the Company makes to the Purchasers hereunder shall be treated as a payment of contingent interest under Section 871(h)(4) of the Internal Revenue Code. The Company shall provide the projected payment schedule for each Tax Debt Instrument to the
63
Administrative Agent as required under Treasury Regulations Section 1.1275-2(e) and Treasury Regulations Section 1.1275-4(b)(4)(iv); provided however that the Company shall consult with, and consider in good faith any reasonable comments or proposals timely made by, the Administrative Agent regarding the projected payment schedule for each Tax Debt Instrument. The parties hereto agree not to take any position that is inconsistent with the provisions of this Section 7.08 on any Tax Return or in any audit or other administrative or judicial proceeding unless the party that contemplates taking such an inconsistent position has been advised by nationally recognized counsel or accounting firm in writing that, as a result of a change in law, it is more likely than not that the inconsistent position is required by applicable law.
This Agreement, together with the Exhibits and Schedules hereto (which are incorporated herein by reference), and the other Transaction Documents constitute the entire agreement between the parties with respect to the subject matter hereof and supersede all prior agreements (including the Term Sheet), understandings and negotiations, both written and oral, between the parties with respect to the subject matter of this Agreement. No representation, inducement, promise, understanding, condition or warranty not set forth herein (or in the Exhibits, Schedules or other Transaction Documents) has been made or relied upon by either party hereto. None of this Agreement, nor any provision hereof, is intended to confer upon any Person other than the parties hereto any rights or remedies hereunder.
When a reference is made in this Agreement to Articles, Sections, Schedules or Exhibits, such reference shall be to an Article, Section, Schedule or Exhibit to this Agreement unless otherwise indicated. The words “include”, “includes” and “including” when used herein shall be deemed in each case to be followed by the words “without limitation”. Neither party hereto shall be or be deemed to be the drafter of this Agreement for the purposes of construing this Agreement against one party or the other.
64
The headings and captions in this Agreement are for convenience and reference purposes only and shall not be considered a part of or affect the construction or interpretation of any provision of this Agreement.
This Agreement may be executed in two or more counterparts, each of which shall be an original, but all of which together shall constitute one and the same instrument. This Agreement shall become effective when each party hereto shall have received a counterpart hereof signed by the other parties hereto. Any counterpart may be executed by facsimile or pdf signature and such facsimile or pdf signature shall be deemed an original.
If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions shall nevertheless be given full force and effect.
The Company agrees to pay or reimburse the Purchasers and the Administrative Agent for all of its reasonable and documented out-of-pocket costs and expenses (including the reasonable and documented out of pocket fees, expenses, charges and disbursements of counsel to the Purchasers and the Administrative Agent) in connection with the negotiation, preparation, execution and delivery of this Agreement and the other Transaction Documents or any amendments thereto; provided, that the amount of such costs and expenses obligated to be paid by the Company for activities prior to the Effective Date, together with all costs and expenses payable by the Company and its Subsidiaries related to the Oaktree Term Loan Facility and any related transactions with the Administrative Agent, the Purchasers and/or their Affiliates prior to the Effective Date, shall not exceed $[***], plus the actual cost of any collateral filing and recordation fees and searches.
65
Each party hereto hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any action, proceeding, claim or counterclaim arising out of or relating to any Transaction Document or the transactions contemplated under any Transaction Document. This waiver shall apply to any subsequent amendments, renewals, supplements or modifications to any Transaction Document.
66
The Administrative Agent and the Purchasers agree to keep confidential all non-public information provided to it by the Company pursuant to this Agreement; provided that nothing herein shall prevent the Administrative Agent or the Purchasers from disclosing any such information (i) to the Purchasers, any Affiliate of the Purchasers or any other assignee permitted under Section 7.04, (ii) to their employees, officers, directors, agents, attorneys, accountants, trustees and other professional advisors or those of any of its Affiliates (collectively, its “Affiliated Parties”), (iii) upon the request or demand of any Governmental Authority purporting to have jurisdiction over such Person or its Affiliates (including any self-regulatory authority, such as the National Association of Insurance Commissioners), (iv) in response to any order of any court or other Governmental Authority or as may otherwise be required pursuant to any Law, (v) if required to do so in connection with any litigation or similar proceeding, (vi) that has been publicly disclosed (other than as a result of a disclosure in violation of this Section 7.19) or (vii) to the extent necessary in connection with the exercise of any remedy hereunder or under any other Transaction Document; provided that, in the case of disclosure pursuant to clause (iii), (iv) and (v) above, the Purchasers shall promptly provide notice to the Company to the extent reasonable and not prohibited by Law or any applicable Governmental Authority. Notwithstanding any provision of this Agreement otherwise requiring any QIA Purchaser to provide any information or documents to any party to this Agreement or any third party, such QIA Purchaser shall be entitled to withhold, edit, redact and/or otherwise limit disclosure of any such information or documents on the grounds of national security and/or financial or economic sensitivity and such QIA Purchaser shall have no liability whatsoever and shall be free and harmless from any claims whatsoever for exercising its rights pursuant to this clause.
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Each Purchaser agrees that (i) any action taken by the Administrative Agent in accordance with the provisions of the Transaction Documents, (ii) any action taken by the Administrative Agent in reliance upon the instructions of the Purchasers and (iii) the exercise by the Administrative Agent of the powers set forth herein or therein, together with such other powers as are reasonably incidental thereto, shall be authorized and binding upon all of the Secured Parties.
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and, for each of the items set forth in clauses (i) through (iv) above, each Purchaser and the Company hereby waives and agrees not to assert any right, claim or cause of action it might have against the Administrative Agent based thereon.
The Administrative Agent and its Affiliates may make loans and other extensions of credit to, acquire stock and stock equivalents of, accept deposits from, act as the financial advisor for or in any other advisory capacity for, or engage in any kind of business with, the Company or its Subsidiaries as though it were not acting as the Administrative Agent and may receive separate fees and other payments therefor. To the extent the Administrative Agent or any of its Affiliates becomes a Purchaser hereunder, it shall have and may exercise the same rights and powers hereunder and shall be subject to the same obligations and liabilities as any other Purchaser and the term “Purchaser” and any similar terms shall, except where otherwise expressly provided in any Transaction Document, include, without limitation, the Administrative Agent or such Affiliate, as the case may be, in its individual capacity as Purchaser.
Each Purchaser acknowledges that it has, independently and without reliance upon the Administrative Agent, any Purchaser or any of their Affiliates or upon any document solely or in part because such document was transmitted by the Administrative Agent or any of its Affiliates, conducted its own independent investigation of the financial condition and affairs of the Company and has made and continues to make its own credit decisions in connection with entering into, and taking or not taking any action under, any Transaction Document or with respect to any transaction contemplated in any Transaction Document, in each case based on such documents and information as it shall deem appropriate.
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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 Purchaser 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 Purchasers, 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.
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75
[SIGNATURE PAGE FOLLOWS]
76
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the date first above written.
COMPANY:
| | |
| | |
/s/ Xxxxx Xxxxx | ||
Name: | Xxxxx Xxxxx | |
Title: | Chief Executive Officer | |
| | |
[Signature Page to Revenue Interest Financing Agreement]
ADMINISTRATIVE AGENT: OAKTREE FUND ADMINISTRATION, LLC | ||
| | |
By: | Oaktree Capital Management, L.P. | |
Its: | Managing Member | |
| | |
By: | /s/ Xxxxxxx Xxxxxxxx | |
| Name: | Xxxxxxx Xxxxxxxx |
| Title: | Vice President |
| | |
By: | /s/ Xxxxxxx Xxxx | |
| Name: | Xxxxxxx Xxxx |
| Title: | Vice President |
[Signature Page to Revenue Interest Financing Agreement]
PURCHASER: OAKTREE-TCDRS STRATEGIC CREDIT, LLC | ||
| | |
By: | Oaktree Capital Management, L.P. | |
Its: | Manager | |
| | |
By: | /s/ Xxxxxxx Xxxxxxxx | |
| Name: | Xxxxxxx Xxxxxxxx |
| Title: | Vice President |
| | |
By: | /s/ Xxxxxxx Xxxx | |
| Name: | Xxxxxxx Xxxx |
| Title: | Vice President |
Address for Notices:
Oaktree Fund Administration, LLC
000 X. Xxxxx Xxxxxx, 00xx Xx.
Xxx Xxxxxxx, XX 00000
Attn:Oaktree Agency
Email:Xxxxxxxxxxxxx@xxxxxxxxxx.xxx
With a copy to:
Oaktree Capital Management, L.P.
000 X. Xxxxx Xxxxxx, 00xx Xx.
Xxx Xxxxxxx, XX 00000
Attn: Xxxx Xxxxx
Email: XxXxxxx@xxxxxxxxxxxxxx.xxx
With a copy to:
Xxxxxxxx & Xxxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxx Xxxxx
Email: xxxxxx@xxxxxxxx.xxx
[Signature Page to Revenue Interest Financing Agreement]
PURCHASER: OAKTREE-XXXXXXX MULTI-STRATEGY, LLC | ||
| | |
By: | Oaktree Capital Management, L.P. | |
Its: | Manager | |
| | |
By: | /s/ Xxxxxxx Xxxxxxxx | |
| Name: | Xxxxxxx Xxxxxxxx |
| Title: | Vice President |
| | |
By: | /s/ Xxxxxxx Xxxx | |
| Name: | Xxxxxxx Xxxx |
| Title: | Vice President |
Address for Notices:
Oaktree Fund Administration, LLC
000 X. Xxxxx Xxxxxx, 00xx Xx.
Xxx Xxxxxxx, XX 00000
Attn: Oaktree Agency
Email: Xxxxxxxxxxxxx@xxxxxxxxxx.xxx
With a copy to:
Oaktree Capital Management, L.P.
000 X. Xxxxx Xxxxxx, 00xx Xx.
Xxx Xxxxxxx, XX 00000
Attn: Xxxx Xxxxx
Email: XxXxxxx@xxxxxxxxxxxxxx.xxx
With a copy to:
Xxxxxxxx & Xxxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxx X. Xxxxx
Email: xxxxxx@xxxxxxxx.xxx
[Signature Page to Revenue Interest Financing Agreement]
PURCHASER: OAKTREE-TBMR STRATEGIC CREDIT FUND C, LLC | ||
| | |
By: | Oaktree Capital Management, L.P. | |
Its: | Manager | |
| | |
By: | /s/ Xxxxxxx Xxxxxxxx | |
| Name: | Xxxxxxx Xxxxxxxx |
| Title: | Vice President |
| | |
By: | /s/ Xxxxxxx Xxxx | |
| Name: | Xxxxxxx Xxxx |
| Title: | Vice President |
Address for Notices:
Oaktree Fund Administration, LLC
000 X. Xxxxx Xxxxxx, 00xx Xx.
Xxx Xxxxxxx, XX 00000
Attn: Oaktree Agency
Email: Xxxxxxxxxxxxx@xxxxxxxxxx.xxx
With a copy to:
Oaktree Capital Management, L.P.
000 X. Xxxxx Xxxxxx, 00xx Xx.
Xxx Xxxxxxx, XX 00000
Attn: Xxxx Xxxxx
Email: XxXxxxx@xxxxxxxxxxxxxx.xxx
With a copy to:
Xxxxxxxx & Xxxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxx X. Xxxxx
Email: xxxxxx@xxxxxxxx.xxx
[Signature Page to Revenue Interest Financing Agreement]
PURCHASER: OAKTREE-TBMR STRATEGIC CREDIT FUND F, LLC | ||
| | |
By: | Oaktree Capital Management, L.P. | |
Its: | Manager | |
| | |
By: | /s/ Xxxxxxx Xxxxxxxx | |
| Name: | Xxxxxxx Xxxxxxxx |
| Title: | Vice President |
| | |
By: | /s/ Xxxxxxx Xxxx | |
| Name: | Xxxxxxx Xxxx |
| Title: | Vice President |
Address for Notices:
Oaktree Fund Administration, LLC
000 X. Xxxxx Xxxxxx, 00xx Xx.
Xxx Xxxxxxx, XX 00000
Attn: Oaktree Agency
Email: Xxxxxxxxxxxxx@xxxxxxxxxx.xxx
With a copy to:
Oaktree Capital Management, L.P.
000 X. Xxxxx Xxxxxx, 00xx Xx.
Xxx Xxxxxxx, XX 00000
Attn: Xxxx Xxxxx
Email: XxXxxxx@xxxxxxxxxxxxxx.xxx
With a copy to:
Xxxxxxxx & Xxxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxx X. Xxxxx
Email: xxxxxx@xxxxxxxx.xxx
[Signature Page to Revenue Interest Financing Agreement]
PURCHASER: OAKTREE-TBMR STRATEGIC CREDIT FUND G, LLC | ||
| | |
By: | Oaktree Capital Management, L.P. | |
Its: | Manager | |
| | |
By: | /s/ Xxxxxxx Xxxxxxxx | |
| Name: | Xxxxxxx Xxxxxxxx |
| Title: | Vice President |
| | |
By: | /s/ Xxxxxxx Xxxx | |
| Name: | Xxxxxxx Xxxx |
| Title: | Vice President |
Address for Notices:
Oaktree Fund Administration, LLC
000 X. Xxxxx Xxxxxx, 00xx Xx.
Xxx Xxxxxxx, XX 00000
Attn: Oaktree Agency
Email: Xxxxxxxxxxxxx@xxxxxxxxxx.xxx
With a copy to:
Oaktree Capital Management, L.P.
000 X. Xxxxx Xxxxxx, 00xx Xx.
Xxx Xxxxxxx, XX 00000
Attn: Xxxx Xxxxx
Email: XxXxxxx@xxxxxxxxxxxxxx.xxx
With a copy to:
Xxxxxxxx & Xxxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxx X. Xxxxx
Email: xxxxxx@xxxxxxxx.xxx
[Signature Page to Revenue Interest Financing Agreement]
PURCHASER: OAKTREE-TSE 16 STRATEGIC CREDIT, LLC | ||
| | |
By: | Oaktree Capital Management, L.P. | |
Its: | Manager | |
| | |
By: | /s/ Xxxxxxx Xxxxxxxx | |
| Name: | Xxxxxxx Xxxxxxxx |
| Title: | Vice President |
| | |
By: | /s/ Xxxxxxx Xxxx | |
| Name: | Xxxxxxx Xxxx |
| Title: | Vice President |
Address for Notices:
Oaktree Fund Administration, LLC
000 X. Xxxxx Xxxxxx, 00xx Xx.
Xxx Xxxxxxx, XX 00000
Attn: Oaktree Agency
Email: Xxxxxxxxxxxxx@xxxxxxxxxx.xxx
With a copy to:
Oaktree Capital Management, L.P.
000 X. Xxxxx Xxxxxx, 00xx Xx.
Xxx Xxxxxxx, XX 00000
Attn: Xxxx Xxxxx
Email: XxXxxxx@xxxxxxxxxxxxxx.xxx
With a copy to:
Xxxxxxxx & Xxxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxx X. Xxxxx
Email: xxxxxx@xxxxxxxx.xxx
[Signature Page to Revenue Interest Financing Agreement]
PURCHASER: INPRS STRATEGIC CREDIT HOLDINGS, LLC | ||
| | |
By: | Oaktree Capital Management, L.P. | |
Its: | Manager | |
| | |
By: | /s/ Xxxxxxx Xxxxxxxx | |
| Name: | Xxxxxxx Xxxxxxxx |
| Title: | Vice President |
| | |
By: | /s/ Xxxxxxx Xxxx | |
| Name: | Xxxxxxx Xxxx |
| Title: | Vice President |
Address for Notices:
Oaktree Fund Administration, LLC
000 X. Xxxxx Xxxxxx, 00xx Xx.
Xxx Xxxxxxx, XX 00000
Attn: Oaktree Agency
Email: Xxxxxxxxxxxxx@xxxxxxxxxx.xxx
With a copy to:
Oaktree Capital Management, L.P.
000 X. Xxxxx Xxxxxx, 00xx Xx.
Xxx Xxxxxxx, XX 00000
Attn: Xxxx Xxxxx
Email: XxXxxxx@xxxxxxxxxxxxxx.xxx
With a copy to:
Xxxxxxxx & Xxxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxx X. Xxxxx
Email: xxxxxx@xxxxxxxx.xxx
[Signature Page to Revenue Interest Financing Agreement]
PURCHASER: OAKTREE STRATEGIC INCOME II, INC. | |||
| | | |
By: | Oaktree Fund Advisors, LLC | Oaktree Fund Advisors, LLC | |
Its: | Investment Advisor | ||
| | | |
By: | /s/ Xxxxxxx Xxxxxxxx | ||
| Name: | Xxxxxxx Xxxxxxxx | |
| Title: | Vice President | |
| | | |
By: | /s/ Xxxxxxx Xxxx | ||
| Name: | Xxxxxxx Xxxx | |
| Title: | Vice President | |
Address for Notices:
Oaktree Fund Administration, LLC
000 X. Xxxxx Xxxxxx, 00xx Xx.
Xxx Xxxxxxx, XX 00000
Attn: Oaktree Agency
Email: Xxxxxxxxxxxxx@xxxxxxxxxx.xxx
With a copy to:
Oaktree Capital Management, L.P.
000 X. Xxxxx Xxxxxx, 00xx Xx.
Xxx Xxxxxxx, XX 00000
Attn: Xxxx Xxxxx
Email: XxXxxxx@xxxxxxxxxxxxxx.xxx
With a copy to:
Xxxxxxxx & Xxxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxx X. Xxxxx
Email: xxxxxx@xxxxxxxx.xxx
[Signature Page to Revenue Interest Financing Agreement]
PURCHASER: OAKTREE SPECIALTY LENDING CORPORATION | |||
| | | |
By: | Oaktree Fund Advisors, LLC | Oaktree Fund Advisors, LLC | |
Its: | Investment Advisor | ||
| | | |
By: | /s/ Xxxxxxx Xxxxxxxx | ||
| Name: | Xxxxxxx Xxxxxxxx | |
| Title: | Vice President | |
| | | |
By: | /s/ Xxxxxxx Xxxx | ||
| Name: | Xxxxxxx Xxxx | |
| Title: | Vice President | |
Address for Notices:
Oaktree Fund Administration, LLC
000 X. Xxxxx Xxxxxx, 00xx Xx.
Xxx Xxxxxxx, XX 00000
Attn: Oaktree Agency
Email: Xxxxxxxxxxxxx@xxxxxxxxxx.xxx
With a copy to:
Oaktree Capital Management, L.P.
000 X. Xxxxx Xxxxxx, 00xx Xx.
Xxx Xxxxxxx, XX 00000
Attn: Xxxx Xxxxx
Email: XxXxxxx@xxxxxxxxxxxxxx.xxx
With a copy to:
Xxxxxxxx & Xxxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxx X. Xxxxx
Email: xxxxxx@xxxxxxxx.xxx
[Signature Page to Revenue Interest Financing Agreement]
PURCHASER: OAKTREE STRATEGIC CREDIT FUND | |||
| | | |
By: | Oaktree Fund Advisors, LLC | Oaktree Fund Advisors, LLC | |
Its: | Investment Advisor | ||
| | | |
By: | /s/ Xxxxxxx Xxxxxxxx | ||
| Name: | Xxxxxxx Xxxxxxxx | |
| Title: | Vice President | |
| | | |
By: | /s/ Xxxxxxx Xxxx | ||
| Name: | Xxxxxxx Xxxx | |
| Title: | Vice President | |
Address for Notices:
Oaktree Fund Administration, LLC
000 X. Xxxxx Xxxxxx, 00xx Xx.
Xxx Xxxxxxx, XX 00000
Attn: Oaktree Agency
Email: Xxxxxxxxxxxxx@xxxxxxxxxx.xxx
With a copy to:
Oaktree Capital Management, L.P.
000 X. Xxxxx Xxxxxx, 00xx Xx.
Xxx Xxxxxxx, XX 00000
Attn: Xxxx Xxxxx
Email: XxXxxxx@xxxxxxxxxxxxxx.xxx
With a copy to:
Xxxxxxxx & Xxxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxx X. Xxxxx
Email: xxxxxx@xxxxxxxx.xxx
[Signature Page to Revenue Interest Financing Agreement]
PURCHASER: OAKTREE GCP FUND DELAWARE HOLDINGS, L.P. | |||
| | | |
By: | Oaktree Global Credit Plus Fund GP, L.P. | Oaktree Fund Advisors, LLC | |
Its: | General Partner | ||
| | ||
By: | Oaktree Global Credit Plus Fund GP Ltd. | ||
Its: | General Partner | ||
| | ||
By: | Oaktree Capital Management, L.P. | ||
Its: | Director | ||
| | | |
By: | /s/ Xxxxxxx Xxxxxxxx | ||
| Name: | Xxxxxxx Xxxxxxxx | |
| Title: | Vice President | |
| | | |
By: | /s/ Xxxxxxx Xxxx | ||
| Name: | Xxxxxxx Xxxx | |
| Title: | Vice President | |
Address for Notices:
Oaktree Fund Administration, LLC
000 X. Xxxxx Xxxxxx, 00xx Xx.
Xxx Xxxxxxx, XX 00000
Attn: Oaktree Agency
Email: Xxxxxxxxxxxxx@xxxxxxxxxx.xxx
With a copy to:
Oaktree Capital Management, L.P.
000 X. Xxxxx Xxxxxx, 00xx Xx.
Xxx Xxxxxxx, XX 00000
Attn: Xxxx Xxxxx
Email: XxXxxxx@xxxxxxxxxxxxxx.xxx
With a copy to:
Xxxxxxxx & Xxxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxx X. Xxxxx
Email: xxxxxx@xxxxxxxx.xxx
[Signature Page to Revenue Interest Financing Agreement]
PURCHASER: OAKTREE DIVERSIFIED INCOME FUND INC. | ||
| | |
By: | Oaktree Fund Advisors, LLC | |
Its: | Investment Advisor | |
| | |
By: | /s/ Xxxxxxx Xxxxxxxx | |
| Name: | Xxxxxxx Xxxxxxxx |
| Title: | Vice President |
| | |
By: | /s/ Xxxxxxx Xxxx | |
| Name: | Xxxxxxx Xxxx |
| Title: | Vice President |
Address for Notices:
Oaktree Fund Administration, LLC
000 X. Xxxxx Xxxxxx, 00xx Xx.
Xxx Xxxxxxx, XX 00000
Attn: Oaktree Agency
Email: Xxxxxxxxxxxxx@xxxxxxxxxx.xxx
With a copy to:
Oaktree Capital Management, L.P.
000 X. Xxxxx Xxxxxx, 00xx Xx.
Xxx Xxxxxxx, XX 00000
Attn: Xxxx Xxxxx
Email: XxXxxxx@xxxxxxxxxxxxxx.xxx
With a copy to:
Xxxxxxxx & Xxxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxx X. Xxxxx
Email: xxxxxx@xxxxxxxx.xxx
[Signature Page to Revenue Interest Financing Agreement]
PURCHASER: OAKTREE AZ STRATEGIC LENDING FUND, L.P. | |||
| | | |
By: | Oaktree AZ Strategic Lending Fund GP, L.P. | Oaktree Fund Advisors, LLC | |
Its: | General Partner | ||
| | ||
By: | Oaktree Fund GP IIA, LLC | ||
Its: | General Partner | ||
| | ||
By: | Oaktree Fund XX XX, L.P. | ||
Its: | Managing Member | ||
| | | |
By: | /s/ Xxxxxxx Xxxxxxxx | ||
| Name: | Xxxxxxx Xxxxxxxx | |
| Title: | Authorized Signatory | |
| | | |
By: | /s/ Xxxxxxx Xxxx | ||
| Name: | Xxxxxxx Xxxx | |
| Title: | Authorized Signatory | |
Address for Notices:
Oaktree Fund Administration, LLC
000 X. Xxxxx Xxxxxx, 00xx Xx.
Xxx Xxxxxxx, XX 00000
Attn: Oaktree Agency
Email: Xxxxxxxxxxxxx@xxxxxxxxxx.xxx
With a copy to:
Oaktree Capital Management, L.P.
000 X. Xxxxx Xxxxxx, 00xx Xx.
Xxx Xxxxxxx, XX 00000
Attn: Xxxx Xxxxx
Email: XxXxxxx@xxxxxxxxxxxxxx.xxx
With a copy to:
Xxxxxxxx & Xxxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxx X. Xxxxx
Email: xxxxxx@xxxxxxxx.xxx
[Signature Page to Revenue Interest Financing Agreement]
PURCHASER: OAKTREE LOAN ACQUISITION FUND, L.P. | |||
| | | |
By: | Oaktree Fund GP IIA, LLC | Oaktree Fund Advisors, LLC | |
Its: | General Partner | ||
| | ||
By: | Oaktree Fund XX XX, L.P. | ||
Its: | Managing Member | ||
| | ||
By: | /s/ Xxxxxxx Xxxxxxxx | ||
| Name: | Xxxxxxx Xxxxxxxx | |
| Title: | Authorized Signatory | |
| | | |
By: | /s/ Xxxxxxx Xxxx | ||
| Name: | Xxxxxxx Xxxx | |
| Title: | Authorized Signatory | |
Address for Notices:
Oaktree Fund Administration, LLC
000 X. Xxxxx Xxxxxx, 00xx Xx.
Xxx Xxxxxxx, XX 00000
Attn: Oaktree Agency
Email: Xxxxxxxxxxxxx@xxxxxxxxxx.xxx
With a copy to:
Oaktree Capital Management, L.P.
000 X. Xxxxx Xxxxxx, 00xx Xx.
Xxx Xxxxxxx, XX 00000
Attn: Xxxx Xxxxx
Email: XxXxxxx@xxxxxxxxxxxxxx.xxx
With a copy to:
Xxxxxxxx & Xxxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxx X. Xxxxx
Email: xxxxxx@xxxxxxxx.xxx
[Signature Page to Revenue Interest Financing Agreement]
PURCHASER: OAKTREE LSL FUND DELAWARE HOLDINGS EURRC, L.P. | |||
| | | |
By: | Oaktree Life Sciences Lending Fund GP, L.P. | Oaktree Fund Advisors, LLC | |
Its: | General Partner | ||
| | ||
By: | Oaktree Life Sciences Lending Fund GP Ltd. | ||
Its: | General Partner | ||
| | ||
By: | Oaktree Capital Management, L.P. | ||
Its: | Director | ||
| | ||
By: | /s/ Xxxxxxx Xxxxxxxx | ||
| Name: | Xxxxxxx Xxxxxxxx | |
| Title: | Authorized Signatory | |
| | | |
By: | /s/ Xxxxxxx Xxxx | ||
| Name: | Xxxxxxx Xxxx | |
| Title: | Authorized Signatory | |
Address for Notices:
Oaktree Fund Administration, LLC
000 X. Xxxxx Xxxxxx, 00xx Xx.
Xxx Xxxxxxx, XX 00000
Attn: Oaktree Agency
Email: Xxxxxxxxxxxxx@xxxxxxxxxx.xxx
With a copy to:
Oaktree Capital Management, L.P.
000 X. Xxxxx Xxxxxx, 00xx Xx.
Xxx Xxxxxxx, XX 00000
Attn: Xxxx Xxxxx
Email: XxXxxxx@xxxxxxxxxxxxxx.xxx
With a copy to:
Xxxxxxxx & Xxxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxx X. Xxxxx
Email: xxxxxx@xxxxxxxx.xxx
[Signature Page to Revenue Interest Financing Agreement]
PURCHASER: Q BOOST HOLDING LLC | ||
| | |
| | |
By: | /s/ Ahmed Xxxxxx Xx-Xxxxxxxxxx | |
| Name: | Ahmed Xxxxxx Xx-Xxxxxxxxxx |
| Title: | Director |
| | |
Address for Notices: Xxxxxxx Xxxxx (Xxxxxxxx 00) Xx Xxxxx Xxxxxx (Xxxxxx 801) Al Dafna (Zone 00) Xxxx, Xxxxx A copy (which shall not constitute notice) shall also be sent to: General Counsel Qatar Investment Xxxxxxxxx Xxxxxxx Xxxxx (Xxxxxxxx 00) Xx Xxxxx Xxxxxx (Xxxxxx 801) Al Dafna (Zone 61) Doha, Qatar Email: xxxxxxx.xxxxx@xxx.xx A copy (which shall not constitute notice) shall also be sent to: Shearman & Sterling LLP 535 Mission Street, 25th Floor San Francisco, CA 94105 Attn:Xxxxxxx X. Dorf Tomasz Kulawik Email:mdorf@shearman.com tomasz.xxxxxxx@xxxxxxxx.xxx | ||
[Signature Page to Revenue Interest Financing Agreement]
Schedule 1
to RIFA
Purchase Schedule
Tranche A
Purchasers and their respective Applicable Commitments:
Purchaser | Applicable Commitment |
Oaktree-TCDRS Strategic Credit, LLC | $309,482 |
Oaktree-Xxxxxxx Multi-Strategy, LLC | $249,697 |
Oaktree-TBMR Strategic Credit Fund C, LLC | $150,530 |
Oaktree-TBMR Strategic Credit Fund F, LLC | $235,902 |
Oaktree-TBMR Strategic Credit Fund G, LLC | $385,180 |
Oaktree-TSE 16 Strategic Credit, LLC | $386,864 |
INPRS Strategic Credit Holdings, LLC | $118,064 |
Oaktree Strategic Income II, Inc. | $533,613 |
Oaktree Specialty Lending Corporation | $2,281,003 |
Oaktree Strategic Credit Fund | $1,341,376 |
Oaktree GCP Fund Delaware Holdings, L.P. | $171,607 |
Oaktree Diversified Income Fund Inc. | $375,585 |
Oaktree AZ Strategic Lending Fund, L.P. | $2,201,340 |
Oaktree Loan Acquisition Fund, L.P. | $4,471,255 |
Oaktree LSL Fund Delaware Holdings EURRC, L.P. | $1,788,502 |
Q Boost Holding LLC | $15,000,000 |
Tranche A Commitment | $30,000,000 |
Tranche B
Purchasers and their respective Applicable Commitments:
Purchaser | Applicable Commitment |
Oaktree-TCDRS Strategic Credit, LLC | $464,223 |
Oaktree-Xxxxxxx Multi-Strategy, LLC | $374,545 |
Oaktree-TBMR Strategic Credit Fund C, LLC | $225,796 |
Oaktree-TBMR Strategic Credit Fund F, LLC | $353,854 |
Oaktree-TBMR Strategic Credit Fund G, LLC | $577,769 |
Oaktree-TSE 16 Strategic Credit, LLC | $580,296 |
INPRS Strategic Credit Holdings, LLC | $177,096 |
Oaktree Strategic Income II, Inc. | $800,420 |
Oaktree Specialty Lending Corporation | $3,421,504 |
Oaktree Strategic Credit Fund | $2,012,064 |
Oaktree GCP Fund Delaware Holdings, L.P. | $257,410 |
Oaktree Diversified Income Fund Inc. | $563,378 |
Oaktree AZ Strategic Lending Fund, L.P. | $3,302,010 |
Oaktree Loan Acquisition Fund, L.P. | $6,706,882 |
Oaktree LSL Fund Delaware Holdings EURRC, L.P. | $2,682,753 |
Q Boost Holding LLC | $22,500,000 |
Tranche B Commitment | $45,000,000 |
Tranche C
Purchasers and their respective Applicable Commitments:
Purchaser | Applicable Commitment |
Oaktree-TCDRS Strategic Credit, LLC | $464,223 |
Oaktree-Xxxxxxx Multi-Strategy, LLC | $374,545 |
Oaktree-TBMR Strategic Credit Fund C, LLC | $225,796 |
Oaktree-TBMR Strategic Credit Fund F, LLC | $353,854 |
Oaktree-TBMR Strategic Credit Fund G, LLC | $577,769 |
Oaktree-TSE 16 Strategic Credit, LLC | $580,296 |
INPRS Strategic Credit Holdings, LLC | $177,096 |
Oaktree Strategic Income II, Inc. | $800,420 |
Oaktree Specialty Lending Corporation | $3,421,504 |
Oaktree Strategic Credit Fund | $2,012,064 |
Oaktree GCP Fund Delaware Holdings, L.P. | $257,410 |
Oaktree Diversified Income Fund Inc. | $563,378 |
Oaktree AZ Strategic Lending Fund, L.P. | $3,302,010 |
Oaktree Loan Acquisition Fund, L.P. | $6,706,882 |
Oaktree LSL Fund Delaware Holdings EURRC, L.P. | $2,682,753 |
Q Boost Holding LLC | $22,500,000 |
Tranche C Commitment | $45,000,000 |
Schedule 2
to RIFA
Product
[Omitted pursuant to Item 601(a)(5) of Regulation S-K.]
Schedule 3.04(a)
to RIFA
Ownership of IP
[Omitted pursuant to Item 601(a)(5) of Regulation S-K.]
Schedule 3.04(b)
to RIFA
Ownership of Included Product Revenues
[Omitted pursuant to Item 601(a)(5) of Regulation S-K.]
Schedule 3.08
to RIFA
Litigation
[Omitted pursuant to Item 601(a)(5) of Regulation S-K.]
Schedule 3.12(a)
to RIFA
Intellectual Property
[Omitted pursuant to Item 601(a)(5) of Regulation S-K.]
Schedule 3.12(b)
to RIFA
Product Patents
[Omitted pursuant to Item 601(a)(5) of Regulation S-K.]
Schedule 3.13(c)
to RIFA
Regulatory Approvals
[Omitted pursuant to Item 601(a)(5) of Regulation S-K.]
Schedule 3.14
to RIFA
Material Contracts
[Omitted pursuant to Item 601(a)(5) of Regulation S-K.]
Schedule 3.16
to RIFA
Pension Matters
[Omitted pursuant to Item 601(a)(5) of Regulation S-K.]
Schedule 3.17(a)
to RIFA
Existing Indebtedness
[Omitted pursuant to Item 601(a)(5) of Regulation S-K.]
Schedule 3.17(b)
to RIFA
Existing Liens
[Omitted pursuant to Item 601(a)(5) of Regulation S-K.]
EXHIBIT A
Form of Security Agreement
[Omitted pursuant to Item 601(a)(5) of Regulation S-K.]
EXHIBIT B
Form of Funding Notice
[Omitted pursuant to Item 601(a)(5) of Regulation S-K.]
