SUPPLEMENT to the Loan and Security Agreement dated as of November 30, 2021 between BioVie Inc. (“Borrower”) and Avenue Venture Opportunities Fund, L.P. II, a Delaware limited partnership (“AVOF 2”), as a lender and Avenue Venture Opportunities Fund,...
Execution Copy
SUPPLEMENT
to the
dated as of November 30, 2021
between
BioVie Inc. (“Borrower”)
and
Avenue Venture Opportunities Fund, X.X. XX, a Delaware limited partnership (“AVOF 2”), as a lender
and
Avenue Venture Opportunities Fund, L.P., a Delaware limited partnership (“Avenue” and, in its capacity as a lender, together with AVOF 2, each a “Lender” and collectively, “Lenders,” and in its capacity as administrative agent and collateral agent, “Agent”)
This is a Supplement identified in the document entitled Loan and Security Agreement, dated as of November 30, 2021 (as amended, restated, supplemented and modified from time to time, the “Loan Agreement”), by and among Xxxxxxxx, Lenders and Agent. All capitalized terms used in this Supplement and not otherwise defined in this Supplement have the meanings ascribed to them in the Loan Agreement, which is incorporated in its entirety into this Supplement. In the event of any inconsistency between the provisions of the Loan Agreement and this Supplement, this Supplement is controlling.
In addition to the provisions of the Loan Agreement, the parties agree as follows:
Part 1 - Additional Definitions:
“Amortization Period” means the period commencing on the first day of the first full calendar month following the Interest-only Period and continuing until the Maturity Date.
“Commitment” means, subject to the terms and conditions set forth in the Loan Agreement and this Supplement, Lenders’ commitment to make Growth Capital Loans to Borrower up to the aggregate original principal amount of Twenty Million Dollars ($20,000,000), with Ten Million Dollars ($10,000,000) to be funded by Avenue and Ten Million Dollars ($10,000,000) to be funded by AVOF 2. The Commitment shall be divided into two (2) tranches in the following amounts: (i) Fifteen Million Dollars ($15,000,000), with Seven Million Five Hundred Thousand ($7,500,000) to be funded by Avenue and Seven Million Five Hundred Thousand ($7,500,000) to be funded by AVOF 2 on the Closing Date (“Tranche 1”); and (ii) up to Five Million Dollars ($5,000,000) to be funded between the Tranche 2 Start Date and the Tranche 2 End Date, subject to the conditions in Section 1(b)(i) of Part 2 (“Tranche 2”). Notwithstanding the foregoing, at the request of Xxxxxxxx, Lenders may make additional Growth Capital Loans to Borrower in an additional amount of Five Million Dollars ($5,000,000) upon Borrower’s achievement of the Tranche 3 Increase Conditions, the mutual written agreement of Borrower and Lenders, each acting in its sole discretion, and subject to execution and delivery by Borrower, Lenders and Agent of amendments to the Loan Documents and the Warrants in form and substance satisfactory to Lenders to reflect such additional Growth Capital Loans and the other terms of the Loan Agreement (the “Tranche 3 Discretionary Commitment”), but such Tranche 3 Discretionary Commitment shall only be included in the definition of “Commitment” at such time as the additional Five Million Dollars ($5,000,000) (“Tranche 3”) is actually funded by Lenders.
“Designated Rate” means, for each Growth Capital Loan, a variable rate of interest per annum equal to the greater of (i) the sum of seven percent (7.00%) plus the Prime Rate, and (ii) ten and three-quarters percent (10.75%). Changes to the Designated Rate based on changes to the Prime Rate shall be effective as of the next scheduled interest payment date immediately following such change.
“Final Payment” means a payment (in addition to and not a substitution for the regular monthly payments of principal plus accrued interest) equal to four and one-quarter percent (4.25%) of the sum of (a) the original aggregate principal amount of Tranche 1 and Tranche 2 Commitment amount of Twenty Million Dollars ($20,000,000.00) plus (b) the aggregate principal amount borrowed under Tranche 3.
“Growth Capital Loan” means any Loan requested by Xxxxxxxx and funded by a Lender under its Commitment for general corporate purposes of Borrower.
“Interest-only Period” means the period commencing on the Closing Date and continuing until the eighteenth (18th) month anniversary of the Closing Date; provided, however, that such period shall be extended for an additional six (6) months from the end of such eighteen (18) month period prior to the Tranche 2 End Date, Borrower has received a Tranche 2 Loan; provided, further, however, that the Interest-only Period shall not exceed twenty-four (24) months.
“Loan” or “Loans” mean, as the context may require, individually a Growth Capital Loan, and collectively, the Growth Capital Loans.
“Loan Commencement Date” means, with respect to each Growth Capital Loan: (a) the first day of the first full calendar month following the Borrowing Date of such Loan if such Borrowing Date is not the first day of a month; or (b) the same day as the Borrowing Date if the Borrowing Date is the first day of a month.
“Maturity Date” means December 1, 2024.
“Prepayment Fee” means, with respect to any prepayment of the Loans:
(i) if the prepayment occurs during the period commencing on the Closing Date and ending on the last day of the Interest-only Period, an amount equal to the principal amount of such Loans prepaid multiplied by three percent (3.00%); and
(ii) if the prepayment occurs during the period commencing on the first day after the Interest-only Period and ending on (but excluding) the Maturity Date, an amount equal to the principal amount of the Loans prepaid multiplied by one percent (1.00%).
“Prime Rate” is the rate of interest per annum from time to time published in the money rates section of The Wall Street Journal or any successor publication thereto as the “prime rate” then in effect; provided that, in the event such rate of interest is less than zero, such rate shall be deemed to be zero for purposes of this Supplement; and provided further that if such rate of interest, as set forth from time to time in the money rates section of The Wall Street Journal, becomes unavailable for any reason as determined by Agent, the “Prime Rate” shall mean the rate of interest per annum announced by Silicon Valley Bank as its prime rate in effect at its principal office in the State of California (such announced Prime Rate not being intended to be the lowest rate of interest charged by such institution in connection with extensions of credit to debtors); provided that, in the event such rate of interest is less than zero, such rate shall be deemed to be zero for purposes of this Supplement.
“Revenue” means revenue, determined in accordance with GAAP.
“Termination Date” means the earlier of: (i) the date Lenders may terminate making Growth Capital Loans or extending other credit pursuant to the rights of Lenders under Article 7 of the Loan Agreement; and (ii) January 15, 2023.
“Threshold Amount” means Two Hundred Fifty Thousand Dollars ($250,000.00).
“Tranche 2 End Date” means September 15, 2022.
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“Tranche 2 Milestone” means Borrower has achieved at least two (2) of the following milestones: (a) achievement of positive data in the ongoing phase 2b study of BIV201 for the treatment of refractory ascites, (b) completion of enrollment of at least ninety percent (90%) of the patients in the ongoing phase 3 study of NE3107 for the treatment of Alzheimer’s Disease, and (c) achievement of positive data from the phase 2 study of NE3107 for the treatment of Xxxxxxxxx’x Disease, in each case as determined by Xxxxxxx in their sole discretion.
“Tranche 2 Start Date” means the Closing Date, but subject to Xxxxxxxx’s achievement of the Tranche 2 Milestone.
“Tranche 3 Increase Conditions” means (a) Borrower has achieved positive data from the phase 3 study of NE3107 for the treatment of Alzheimer’s Disease, as determined by each Lender in its sole discretion, and (b) each funding Lender has obtained approval from such Xxxxxx’s investment committee.
“Warrant” is defined in Part 2, Section 3(a) hereof.
Part 2 - Additional Covenants and Conditions:
1. Growth Capital Loan Facility.
(a) Conditions Precedent Regarding Growth Capital Loan Commitments. Subject to satisfaction of all of the applicable conditions precedent specified in Sections 4.1 and 4.2 of the Loan and Security Agreement and this Supplement, each Lender shall fund its pro rata share of the Tranche 1 Commitment in the aggregate amount of Fifteen Million Dollars ($15,000,000) on the Closing Date.
(b) Additional Condition(s) Precedent Regarding Growth Capital Loan Commitments. In addition to the satisfaction of all of the other applicable conditions precedent specified in Sections 4.1 and 4.2 of the Loan and Security Agreement and this Supplement, Lenders’ obligation to fund Tranche 2 and Tranche 3 of the Commitment of Growth Capital Loans is subject to receipt by Xxxxxxx of evidence that the following conditions precedent have been satisfied, as determined by Xxxxxxx in their sole discretion:
(i) with respect to Tranche 2, Xxxxxxxx has achieved the Tranche 2 Milestone; and
(ii) with respect to Tranche 3, Xxxxxxxx has achieved the Tranche 3 Increase Conditions.
Subject to satisfaction of the conditions precedent specified in Sections 4.1 and Section 4.2 of the Loan Agreement and this Supplement, each Lender agrees to make Growth Capital Loans to Borrower under its pro rata share of the Commitment from time to time from and after the Closing Date up to and including the Termination Date in an aggregate, original principal amount up to, but not exceeding, then then-unfunded portion of such Xxxxxx’s Commitment.
(c) Minimum Funding Amount; Maximum Number of Borrowing Requests. Growth Capital Loans requested by Borrower to be made on a single Business Day shall be for a minimum aggregate, original principal amount of Two Million Dollars ($2,000,000.00); provided, however, that the initial Growth Capital Loan shall be funded on the Closing Date in a minimum original principal amount of Fifteen Million Dollars ($15,000,000.00). Borrower shall not submit a Borrowing Request more frequently than once per calendar month.
(d) Repayment of Growth Capital Loans. Principal of, and interest on, each Growth Capital Loan shall be payable as set forth in a Note evidencing such Growth Capital Loan (substantially in the form attached hereto as Exhibit “A”), which Note shall provide substantially as follows: principal shall be fully amortized over the Amortization Period in equal, monthly principal installments plus, in each case, unpaid interest thereon at the Designated Rate, commencing after the Interest-only Period of interest-only installments at the Designated Rate. In particular, on the Borrowing Date applicable to such Growth Capital Loan, Borrower shall pay to Agent (i) if the Borrowing Date is earlier than the Loan Commencement Date, interest only at the Designated Rate, in advance, on the outstanding principal balance of the Growth Capital Loan for the period from the Borrowing Date through the last day of the calendar month in which such Borrowing Date occurs (it being understood that this clause (i) shall not apply in the case the Borrowing Date is on the same date as the Loan Commencement Date), and (ii) the first (1st) interest-only installment at the Designated Rate, in advance, on the outstanding principal balance of the Note evidencing such Loan for the ensuing month. Commencing on the first day of the second full month after the Borrowing Date and continuing on the first day of each month during the Interest-only Period thereafter, Xxxxxxxx shall pay to Agent interest only at the Designated Rate, in advance, on the outstanding principal balance of the Loan evidenced by such Note for the ensuing month. Commencing on the first day of the first full month after the end of the Interest-only Period, and continuing on the first day of each consecutive calendar month thereafter, Xxxxxxxx shall pay to Agent equal consecutive monthly principal installments in advance in an amount sufficient to fully amortize the Loan evidenced by such Note over the Amortization Period, plus interest at the Designated Rate for such month. On the Maturity Date, all principal and accrued interest then remaining unpaid and the Final Payment shall be due and payable.
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2. Prepayment. The Growth Capital Loans may be voluntarily prepaid as provided in this Section 2 only. Borrower may prepay all, but not less than all, outstanding Growth Capital Loans in whole, but not in part, at any time upon no less than five (5) Business Days’ prior written notice to Lenders by tendering to each Lender a cash payment in respect of such Loans in an amount determined by such Lender equal to the sum of: (i) the aggregate outstanding principal amount of such Loans; (ii) the accrued and unpaid interest on such Loans as of the date of prepayment; (iii) the Prepayment Fee; and (iv) the Final Payment; provided that, if a Lender has not yet exercised its rights under Section 3(d) hereof, Borrower shall provide written notice of prepayment at least ten (10) days in advance of the proposed prepayment date and such Lender shall have the option, with respect to the Conversion Option, to exercise its rights pursuant to Section 3(d) hereof by delivering written notice to Borrower at least two (2) Business Days in advance of the proposed prepayment date.
3. Issuance of Warrant; Right to Invest; Conversion Right.
(a) Warrant. As additional consideration for the making of its pro rata share of the Commitment, each Lender has earned and is entitled to receive immediately upon the execution of the Loan Agreement and this Supplement, a warrant instrument issued by Borrower (the “Warrant”).
(b) Warrant General. The Warrant shall be in form and substance reasonably satisfactory to the applicable Lender.
(c) Right to Invest. Each Lender shall have the right, in its discretion, but not the obligation, to invest up to One Million Dollars ($1,000,000.00) in the aggregate among all Lenders in equity securities of Borrower on the same terms, conditions, and pricing offered by Xxxxxxxx, in connection with any offering of Borrower’s equity securities during the eighteen (18) month period following the Closing Date; provided, however, such terms shall exclude a seat on the Borrower’s Board of Directors, which may be offered to other investors at Borrower’s discretion; provided, further, in no event shall such right shall apply to (i) issuances of equity securities under any existing or future at-the-market offering program, (ii) any placement of equity securities with a strategic partner/participant or charitable or educational institution, and (iii) use of equity securities to goods or services.
(d) Conversion Right. Each Lender shall have the right, in its discretion, but not the obligation, at any time and from time to time, while the Loan is outstanding, to convert an amount of up to Five Million Dollars ($5,000,000.00) of the principal amount of the outstanding Growth Capital Loans in the aggregate among all Lenders (the “Conversion Option”) into shares of Common Stock (as defined in the Warrant) at a price per share equal to one hundred twenty percent (120.00%) of the Stock Purchase Price set forth (and as defined) in the Warrant (the “Conversion Price;” the exercise of such Conversion Option, a “Conversion”). The Conversion Option will be exercised by such Lender delivering a written, signed conversion notice to the Borrower in accordance with this Section 3(d) which will include (i) the date of which the conversion notice is given, (ii) a statement to the effect that the applicable Lender is exercising the Conversion Option, (iii) the amount in respect of which the Conversion Option is being exercised and the number of shares issued and (iv) a date on which the allotment and issuance of the shares is to take place.
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4. Commitment Fee. Borrower shall pay to each Lender, pro-rata in accordance with each Lender’s respective Commitment, a commitment fee in the amount of one percent (1.00%) of the aggregate Twenty Million Dollars ($20,000,000.00) amount of the Tranche 1 and Tranche 2 Commitments due and payable on the Closing Date, of which One Hundred Thousand Dollars ($100,000.00) has been paid by Borrower to Avenue as an advance deposit prior to the date hereof. As an additional condition precedent under Section 4.1 of the Loan Agreement, each Lender shall have completed to its satisfaction its due diligence review of Borrower’s business and financial condition and prospects, and such Xxxxxx’s pro-rata share of the Commitment shall have been approved. If this condition is not satisfied, the One Hundred Thousand Dollars ($100,000.00) advance deposit previously paid by Borrower shall be refunded. Except as set forth in this Section 4, the Commitment Fee is not refundable. In addition, to the extent Borrower receives Loans under Tranche 3, Borrower shall pay to each Lender, pro-rata in accordance with each Lender’s respective Commitment, on or before the funding date of such Tranche 3 Loans a commitment fee in the amount of one percent (1.00%) of the amount of the Tranche 3 Loan so funded.
5. Documentation Fee Payment. On the Closing Date, Borrower shall reimburse each Lender and Agent pursuant to Section 9.8(a) of the Loan Agreement for (i) its reasonable, documented and out-of-pocket attorneys’ fees, costs and expenses incurred in connection with the preparation and negotiation of the Loan Documents and (ii) such Lender’s and Agent’s costs and filing fees related to perfection of its Liens in the Collateral in any jurisdiction in which the same is located, recording a copy of the Intellectual Property Security Agreement with the United States Patent and Trademark Office or the United States Copyright Office, as applicable, and confirming the priority of such Liens.
6. [Reserved.]
7. Debits to Account for ACH Transfers. For purposes of Sections 2.2 and 5.10 of the Loan Agreement, the Primary Operating Account shall be the bank account set forth in the Disclosure Letter, unless and until such account is changed in accordance with Section 5.10 of the Loan Agreement. Borrower hereby agrees that the Growth Capital Loans will be advanced to the account specified above and regularly scheduled payments of principal, interest and fees due to each Lender will be automatically debited by each Lender from the same account. Borrower hereby confirms that the bank at which the Primary Operating Account is maintained uses that same ABA Number for incoming wires transfers to the Primary Operating Account and outgoing ACH transfers from the Primary Operating Account.
Part 3 - [Reserved.]
Part 4 - Additional Loan Documents:
| Form of Promissory Note | Exhibit “A” |
| Form of Borrowing Request | Exhibit “B” |
| Form of Compliance Certificate | Exhibit “C” |
[Remainder of this page intentionally left blank; signature pages follow]
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[Signature page to Supplement to Loan and Security Agreement]
IN WITNESS WHEREOF, the parties have executed this Supplement as of the date first above written.
a Nevada corporation
| By: | /s/ Xxxxx Do |
| Name: | Xxxxx Do |
| Title: | President and Chief Executive Officer |
| Address for Notices: | 0000 Xxxxxx Xxxxxxx Xxxxxxx Xxxxx 0000 |
| Reno, Nevada 89521 | |
| Attn: Xxxxx Xx, CEO | |
| E-Mail: xxx@xxxxxxxxxxxx.xxx |
[Signature page to Supplement to Loan and Security Agreement]
LENDERS:
AVENUE VENTURE OPPORTUNITIES FUND, L.P.
| By: | Avenue Venture Opportunities Partners, LLC |
| Its: | General Partner |
| By: | /s/ Xxxxx Xxxxxxx |
| Name: | Xxxxx Xxxxxxx |
| Title: | Authorized Signatory |
| Address for Notices: | 00 Xxxx 00xx Xxxxxx, 0xx Floor |
| New York, New York 10036 | |
| Attn: Xxxx Xxxxxxxxx, Senior Managing Director | |
| Email: xxxxxxxxxx@xxxxxxxxxxxxx.xxx | |
| Phone # 000-000-0000 |
AVENUE VENTURE OPPORTUNITIES FUND II, L.P.
| By: | Avenue Venture Opportunities Partners II, LLC |
| Its: | General Partner |
| By: | /s/ Xxxxx Xxxxxxx |
| Name: | Xxxxx Xxxxxxx |
| Title: | Authorized Signatory |
| Address for Notices: | 00 Xxxx 00xx Xxxxxx, 0xx Floor |
| New York, New York 10036 | |
| Attn: Xxxx Xxxxxxxxx, Senior Managing Director | |
| Email: xxxxxxxxxx@xxxxxxxxxxxxx.xxx | |
| Phone # 000-000-0000 |
AGENT:
AVENUE VENTURE OPPORTUNITIES FUND, L.P.
| By: | Avenue Venture Opportunities Partners, LLC |
| Its: | General Partner |
| By: | /s/ Xxxxx Xxxxxxx |
| Name: | Xxxxx Xxxxxxx |
| Title: | Authorized Signatory |
| Address for Notices: | 00 Xxxx 00xx Xxxxxx, 0xx Floor |
| New York, New York 10036 | |
| Attn: Xxxx Xxxxxxxxx, Senior Managing Director | |
| Email: xxxxxxxxxx@xxxxxxxxxxxxx.xxx | |
| Phone # 000-000-0000 |
EXHIBIT “A”
FORM OF PROMISSORY NOTE
[Note No. X-XXX]
| $____________________ | [Date] |
The undersigned (“Borrower”) promises to pay to the order of [AVENUE VENTURE OPPORTUNITIES FUND, L.P.][AVENUE VENTURE OPPORTUNITIES FUND II, L.P.], a Delaware limited partnership (“Lender”), at such place as Lender may designate in writing, in lawful money of the United States of America, the principal sum of ______________________________ Dollars ($__________), with interest thereon from the date hereof until maturity, whether scheduled or accelerated, at a variable rate per annum equal to greater of (i) the sum of seven percent (7.00%) plus the Prime Rate, and (ii) ten and three-quarters percent (10.75%) (the “Designated Rate”), according to the payment schedule described herein, except as otherwise provided herein. In addition, on the Maturity Date, the Borrower promises to pay to the order of Lender (i) all principal and accrued interest then remaining unpaid and (ii) the Final Payment (as defined in the Loan Agreement (as defined herein)).
This Note is one of the Notes referred to in, and is entitled to all the benefits of, a Loan and Security Agreement, dated as of November 30, 2021, between Borrower and Lender (as supplemented by the Supplement [as defined in the Loan Agreement] and as further amended, restated, amended and restated, supplemented, or otherwise modified from time to time, the “Loan Agreement”). Each capitalized term not otherwise defined herein shall have the meaning set forth in the Loan Agreement. The Loan Agreement contains provisions for the acceleration of the maturity of this Note upon the happening of certain stated events.
Principal of and interest on this Note shall be payable as provided under Section 2 of Part 2 of the Supplement to the Loan Agreement.
This Note may be prepaid only as permitted under Section 2 of Part 2 of the Supplement to the Loan Agreement.
Any unpaid payments of principal or interest on this Note shall bear interest from their respective maturities, whether scheduled or accelerated, at a rate per annum equal to the Default Rate, compounded monthly. Borrower shall pay such interest on demand.
Interest, charges and fees shall be calculated for actual days elapsed on the basis of a 360-day year, which results in higher interest, charge or fee payments than if a 365-day year were used. In no event shall Borrower be obligated to pay interest, charges or fees at a rate in excess of the highest rate permitted by applicable law from time to time in effect.
If Borrower is late in making any scheduled payment under this Note by more than five (5) days, Xxxxxxxx agrees to pay a “late charge” of five percent (5%) of the installment due, but not less than fifty dollars ($50) for any one such delinquent payment. This late charge may be charged by Xxxxxx for the purpose of defraying the expenses incidental to the handling of such delinquent amounts. Borrower acknowledges that such late charge represents a reasonable sum considering all of the circumstances existing on the date of this Note and represents a fair and reasonable estimate of the costs that will be sustained by Xxxxxx due to the failure of Borrower to make timely payments. Xxxxxxxx further agrees that proof of actual damages would be costly and inconvenient. Such late charge shall be paid without prejudice to the right of Lender to collect any other amounts provided to be paid or to declare a default under this Note or any of the other Loan Documents or from exercising any other rights and remedies of Lender.
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[Signature page to Promissory Note]
This Note shall be governed by, and construed in accordance with, the laws of the State of California, excluding those laws that direct the application of the laws of another jurisdiction.
Xxxxxxxx’s execution and delivery of this Note via facsimile, electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., xxx.xxxxxxxx.xxx) shall constitute effective execution and delivery of this Note and agreement to and acceptance of the terms hereof for all purposes. The fact that this Note is executed, signed, stored or delivered electronically shall not prevent the assignment or transfer by Lender of this Note pursuant to the terms of the Loan Agreement or the enforcement of the terms hereof. Physical possession of the original of this Note or any paper copy thereof shall confer no special status to the bearer thereof. In no event shall an original ink-signed paper copy of this Note be required for any exercise of Xxxxxx’s rights hereunder.
| BIOVIE INC. | ||
| By: | ||
| Name: | ||
| Its: | ||
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EXHIBIT “B”
FORM OF BORROWING REQUEST
November [__], 2021
Avenue Venture Opportunities Fund, L.P.
00 Xxxx 00xx Xxxxxx, 9th Floor
New York, New York 10036
Avenue Venture Opportunities Fund II, L.P.
00 Xxxx 00xx Xxxxxx, 9th Floor
New York, New York 10036
| Re: | BIOVIE INC. |
Ladies and Gentlemen:
Reference is made to the Loan and Security Agreement, November 30, 2021 (as amended, restated or supplemented from time to time, the “Loan Agreement”; the capitalized terms used herein as defined therein), among Avenue Venture Opportunities Fund, L.P. (“Avenue”), as administrative agent and collateral agent (in such capacity, “Agent”), and as a lender, Avenue Venture Opportunities Fund II, L.P. (“AVOF 2” and together with Avenue, in its capacity as a lender, collectively, “Lenders”, and each a “Lender”), and Biovie Inc. (“Borrower”).
The undersigned is the ____________________ of Borrower and hereby requests on behalf of Borrower a Loan under the Loan Agreement, and in that connection certifies as follows:
1. The amount of the proposed Loan is _______________________ Dollars ($_________________). The Borrowing Date of the proposed Loan is ___________________ (the “Borrowing Date”).
| (a) | On the Borrowing Date, |
(i) Avenue will wire $[_________] less fees and expenses to be deducted on the Borrowing Date of (a) [$___] in respect to the Commitment Fee, of which $100,000 has been paid to Avenue prior to the date hereof, (b) $[_________] in respect to the interest fee, and (c) $[_________] in respect to the legal fees for net proceeds of $[___________], and
(ii) AVOF 2 will wire $[_________] less fees and expenses to be deducted on the Borrowing Date of (a) [$___] in respect to the Commitment Fee, of which [$___] has been paid to AVOF 2 prior to the date hereof, (b) $[_________] in respect to the interest fee, and (c) $[_________] in respect to the legal fees for net proceeds of $[___________]
to Borrower pursuant to the following wire instructions:
| Institution Name: | |
| Address: | |
| ABA No.: | |
| Contact Name: | |
| Phone No.: | |
| E-mail: | |
| Account Title: | |
| Account No.: |
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(b) On the Borrowing Date, the Lenders will wire $[__________] to GCA Law Partners LLP for fees and expenses pursuant to the following wire instructions:1
| Institution Name: | |
| ABA No.: | |
| Account Title: | |
| Account No.: | |
| Reference: | |
| Confirm remittance: |
2. As of this date, no Default or Event of Default has occurred and is continuing, or will result from the making of the proposed Loan, the representations and warranties of Borrower contained in Article 3 of the Loan Agreement and Part 3 of the Supplement are true and correct in all material respects other than those representations and warranties expressly referring to a specific date which are true and correct in all material respects as of such date, and the conditions precedent described in Sections 4.1 and/or 4.2 of the Loan Agreement and Part 2 of the Supplement, as applicable, have been met.
3. No event has occurred that has had or could reasonably be expected to have a Material Adverse Change.
4. Xxxxxxxx’s most recent financial statements, financial projections or business plan dated ____________, as reviewed by Borrower’s Board of Directors, are enclosed herewith in the event such financial statements, financial projections or business plan have not been previously provided to Lenders.
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| 1 | To be included in the Borrowing Request on the Closing Date. The executed Borrowing Request must be delivered 2 Business Days prior to the Closing Date. |
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[Signature page to Borrowing Request]
Borrower shall notify you promptly before the funding of the Loan if any of the matters to which I have certified above shall not be true and correct on the Borrowing Date.
Very
truly yours,
BIOVIE INC.,
a Nevada corporation
| By: | |
| Name: | |
| Title: |
EXHIBIT “C”
FORM OF
COMPLIANCE CERTIFICATE
Avenue Venture Opportunities Fund, L.P.
00 Xxxx 00xx Xxxxxx, 9th Floor
New York, New York 10036
Avenue Venture Opportunities Fund II, L.P.
00 Xxxx 00xx Xxxxxx, 9th Floor
New York, New York 10036
| Re: | BIOVIE INC. |
Ladies and Gentlemen:
Reference is made to the Loan and Security Agreement, dated as of November 30, 2021 (as the same has been and may be supplemented, amended and modified from time to time, the “Loan Agreement,” the capitalized terms used herein as defined therein), among Avenue Venture Opportunities Fund, L.P. (“Avenue”), as administrative agent and collateral agent (in such capacity, “Agent”), and as a lender, Avenue Venture Opportunities Fund II, L.P. (“AVOF 2” and together with Avenue, acting in its capacity as a lender, collectively, “Lenders”, and each a “Lender”), and BioVie Inc. (“Borrower”).
The undersigned authorized representative of Borrower hereby certifies in such capacity that in accordance with the terms and conditions of the Loan Agreement, (i) no Default or Event of Default has occurred and is continuing, except as noted below, and (ii) Borrower is in compliance for the financial reporting period ending ____________________________ with all required financial reporting under the Loan Agreement, except as noted below. Attached herewith are the required documents supporting the foregoing certification. The undersigned authorized representative of Borrower further certifies in such capacity that: (a) the accompanying financial statements have been prepared in accordance with Borrower’s past practices applied on a consistent basis, or in such manner as otherwise disclosed in writing to Agent, throughout the periods indicated; and (b) the financial statements fairly present in all material respects the financial condition and operating results of Borrower and its Subsidiaries, if any, as of the dates, and for the periods, indicated therein, subject to the absence of footnotes and normal year-end audit adjustments (in the case of interim monthly financial statements), except as explained below.
Please provide the following requested information and
indicate compliance status by circling (or otherwise indicating) Yes/No under “Included/Complies”:
| REPORTING REQUIREMENT | REQUIRED | INCLUDED/COMPLIES |
| Balance Sheet, Income Statement & Cash Flow Statement (in accordance with Section 5.1(a) of the Loan Agreement*) | Monthly, within 30 days, or as required by Lenders; quarterly, within 45 days | YES / NO / N/A |
| Operating Budgets & Updated Capitalization Tables | As modified | YES / NO / N/A |
| Annual Financial Statements | Annually, within 120 day of fiscal year-end | YES / NO / N/A |
| Board Packages | As modified | YES / NO / N/A |
| Date of most recent Board-approved budget/plan | |
| Any change in budget/plan since version most recently delivered to Agent | YES / NO / N/A |
| If Yes, please attach | |
| Date of most recent capitalization table: ____________________ | |
| Any changes in capitalization table since version most recently delivered to Agent?: | YES / NO / N/A |
| If Yes, please attach a copy of latest capitalization table |
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| INTERIM REPORTING REQUIREMENT* | REQUIRED | AMOUNT |
| Cash Balance | Monthly within 30 days | $_________________ |
| Remaining Months Liquidity | Monthly within 30 days | _________________ |
EQUITY & CONVERTIBLE NOTE FINANCINGS
Please provide the following information (if applicable) regarding Borrower’s most-recent equity and/or convertible note financing each time this Certificate is delivered to Agent
| Date of Last Capital Raise: _____________ | |
| Has there been any new financing since the last Compliance Certificate submitted? | YES / NO |
| If “YES” please attach a copy of the Capitalization Table | |
| Date Closed: ______________ Per Share Price: $_________________ | |
| Amount Raised: _______________ | |
| Any stock splits since date of last report? | YES / NO |
| If yes, please provide any information on stock splits which would affect valuation: | |
| Any dividends since date of last report? | YES / NO |
| If yes, please provide any information on dividends which would affect valuation: | |
| Any unusual terms? (i.e., Anti-dilution, multiple preference, etc.) | YES / NO |
| If yes, please explain: | |
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ACCOUNT CONTROL AGREEMENTS
Pursuant to Section 6.11 of the Loan Agreement, Xxxxxxxx represents and warrants that: (i) as of the date hereof, it maintains only those deposit and investment accounts set forth below; and (ii) to the extent required by Section 6.11 of the Loan Agreement, a control agreement has been executed and delivered to Agent with respect to each such account, other than in the case of Excluded Accounts. [Note: If Borrower has established any new account(s) since the date of the last compliance certificate, please so indicate]
Deposit Accounts2
| Name of Institution | Account Number | Control
Agt. In place? |
Complies | New Account | |||
| 1.) | [_______] | [_______] | YES / NO | YES / NO | YES / NO | ||
| 2.) | YES / NO | YES / NO | YES / NO |
Investment Accounts
| Name of Institution | Account Number | Control
Agt. In place? |
Complies | New Account | |||
| 1.) | None | YES / NO | YES / NO | YES / NO | |||
| 2.) | YES / NO | YES / NO | YES / NO | ||||
| 3.) | YES / NO | YES / NO | YES / NO | ||||
| 4.) | YES / NO | YES / NO | YES / NO |
AGREEMENTS WITH PERSONS IN POSSESSION OF TANGIBLE COLLATERAL
Pursuant to Section 5.9(e) of the Loan Agreement, Borrower represents and warrants that: (i) as of the date hereof, tangible Collateral is located at the addresses set forth below; and (ii) to the extent required by Section 5.9(e) of the Loan Agreement, a Waiver has been executed and delivered to Agent, or such Waiver has been waived by Agent, [Note: If Borrower has located Collateral at any new location since the date of the last compliance certificate, please so indicate].
| Location of Collateral | Value
of Collateral at such Locations |
Waiver In place? |
Complies? | New Location? | |||
| 1.) | $ | YES / NO | YES / NO | YES / NO | |||
| 2.) | $ | YES / NO | YES / NO | YES / NO | |||
| 3.) | $ | YES / NO | YES / NO | YES / NO | |||
| 4.) | $ | YES / NO | YES / NO | YES / NO |
| 2 | Company: Please complete with existing accounts. |
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SUBSIDIARIES AND OTHER PERSONS
Pursuant to Section 6.14(a) of the Loan Agreement, Borrower represents and warrants that: (i) as of the date hereof, it has directly or indirectly acquired or created, or it intends to directly or indirectly acquire or create, each Subsidiary or other Person described below; and (ii) such Subsidiary or Person has been made a co-borrower under the Loan Agreement or a guarantor of the Obligations [Note: If Borrower has acquired or created any Subsidiary since the date of the last compliance certificate, please so indicate].
| Name: | Jurisdiction
of formation or organization:3 |
Co-borrower or guarantor? |
Complies? | New Subsidiary or Person? | |||
| 1.) | YES / NO | YES / NO | YES / NO | ||||
| 2.) | YES / NO | YES / NO | YES / NO | ||||
| 3.) | YES / NO | YES / NO | YES / NO | ||||
| 4.) | YES / NO | YES / NO | YES / NO |
| EXPLANATIONS |
[Remainder of this page intentionally left blank; signature page follows]
| 3 | Under the “Explanations” heading (see below) please include a description of such Subsidiary’s or Person’s fully diluted capitalization and Borrower’s purpose for its acquisition or creation of such Subsidiary if such information has not been previously furnished to Agent. |
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[Signature page to Compliance Certificate]
| Very truly yours, | ||||
| BIOVIE INC. | ||||
| By: | ||||
| Name: | ||||
| Title:* | ||||
| * | Must be executed by Xxxxxxxx’s Chief Financial Officer or other executive officer. |
