LOAN AND SECURITY AGREEMENT This LOAN AND SECURITY AGREEMENT (this “Agreement”) is entered into as of June 30, 2022, by and among CUE HEALTH INC., a Delaware corporation (“Borrower”), the financial institutions from time to time party to this...
LOAN AND SECURITY AGREEMENT This LOAN AND SECURITY AGREEMENT (this “Agreement”) is entered into as of June 30, 2022, by and among CUE HEALTH INC., a Delaware corporation (“Borrower”), the financial institutions from time to time party to this Agreement (collectively, “Lenders” and individually, each a “Lender”), EAST WEST BANK, as collateral and administrative agent for Lenders (in such capacity, “Agent”), and COMERICA BANK as Documentation Agent. RECITALS This Agreement sets forth the terms on which Lenders will advance credit to Borrower, and Borrower will repay the amounts owing to Lenders. AGREEMENT The parties agree as follows: 1. DEFINITIONS AND CONSTRUCTION. 1.1 Definitions. As used in this Agreement, all capitalized terms shall have the definitions set forth on Exhibit A. Any term used in the Code and not defined herein shall have the meaning given to the term in the Code. 1.2 Accounting Terms. Any accounting term not specifically defined on Exhibit A shall be construed in accordance with GAAP and all calculations shall be made in accordance with GAAP; provided that if at any time any change in GAAP would affect the computation of any financial ratio or covenant requirement set forth in any Loan Documents, and any of Agent, Lenders or Borrower shall so request, Borrower, Agent and Lenders shall negotiate in good faith to amend such ratio or covenant requirement to preserve the original intent thereof in light of such change in GAAP. The term “financial statements” shall include the accompanying notes and schedules. 1.3 Interpretation. Any references to “pro rata”, “pro rata share”, “ratably” or similar terms shall take into account the Revolving Loan Commitment Percentage of each Lender and any outstanding commitments, undrawn Letters of Credit, and reimbursement obligations related to any Letters of Credit. 2. LOAN AND TERMS OF PAYMENT. 2.1 Credit Extensions. (a) Promise to Pay. Borrower promises to pay to Agent for the benefit of Lenders, in lawful money of the United States of America, the aggregate unpaid principal amount of all Credit Extensions made by Lenders to Borrower, together with interest on the unpaid principal amount of such Credit Extensions at the times and at the interest rates in accordance with the terms hereof. 2 (b) Advances Under Revolving Line. (i) Amount. Subject to and upon the terms and conditions of this Agreement, Borrower may request, and Lenders severally agree to make to Borrower loans on a revolving credit basis (each a “Revolving Loan” and collectively the “Revolving Loans”) in an aggregate outstanding original principal amount for all Lenders at any time outstanding not to exceed the lesser of (i) the Revolving Line and (ii) such amount as Borrower would still be in compliance with the asset coverage ratio set forth in Section 6.7(a), provided that in no event shall any Lender be obligated to make a Revolving Loan or participate in a Letter of Credit if after giving effect to such Revolving Loan or such participation the sum of such Lender’s (w) Revolving Loans outstanding, (x) Revolving Loan Commitment Percentage of the aggregate maximum amount to be drawn under all Letters of Credit outstanding and (y) Revolving Loan Commitment Percentage of the aggregate amount of unreimbursed drawings under all Letters of Credit outstanding, would exceed its Revolving Loan Commitment. Amounts borrowed pursuant to this Section 2.1(b) may be repaid and reborrowed at any time, from time to time, without penalty or premium prior to the Revolving Maturity Date, at which time all outstanding Advances under this Section 2.1(b) together with all accrued but unpaid interest and fees thereon shall be immediately due and payable. (ii) Form of Request; Lender Funding of Advances. Whenever Borrower desires an Advance, Borrower will give the Agent irrevocable notice by electronic mail, facsimile transmission or telephone no later than 9:00 a.m., Pacific time, on the Business Day that the Advance is to be made. Each such notification shall be promptly confirmed by a Payment/Advance Form in substantially the form of Exhibit C and delivered by a Responsible Officer. Upon receipt of such notice, the Agent shall promptly notify each Lender thereof on the date of receipt of such notice. On the proposed borrowing date, not later than 1:00 p.m., Pacific time, each Lender shall make available to the Agent the amount of such Lender’s pro rata share of the aggregate borrowing amount (as determined in accordance with this Section 2.1(b)) in immediately available funds by wiring such amount to such account as the Agent shall specify. Agent and Lenders shall be entitled to rely on any facsimile or telephonic notice given by a person who Agent and/or Lender reasonably believes to be a Responsible Officer or a designee thereof, and Borrower shall indemnify and hold Agent and Lenders harmless for any damages or loss suffered by such Agent or Lender as a result of such reliance. Agent will credit the amount of Advances made under this Section 2.1(b) to a deposit account of the Borrower at the Agent as Borrower requests in writing; provided that such deposit account is subject to a perfected security interest in favor of the Agent for the benefit of the Lenders. (iii) Defaulting Lenders. If and to the extent any Lender (a “Defaulting Lender”) shall not have made its pro rata share of the Revolving Loan available to the Agent in immediately available funds as set forth in this Section 2.1(b) and the Agent in such circumstances has made available to Borrower such amount, that Lender shall, on the Business Day following the date of such Advance 3 (the “Funding Date”), make such amount available to the Agent; provided that Agent shall be entitled to any interest applicable to such Advance for each day during such period. A notice submitted by the Agent to any Lender with respect to amounts owing under this subsection shall be conclusive, absent demonstrable error. If such amount is so made available, such payment to the Agent shall constitute such Defaulting Lender’s Advance on the Funding Date of such Advance for all purposes of this Agreement. If such amount is not made available to the Agent on the Business Day following the Funding Date, the Agent will notify Borrower of such failure to fund and, upon demand by the Agent, Borrower shall pay such amount to the Agent for the Agent’s account, together with interest thereon for each day elapsed since the Funding Date of such Advance, at a rate per annum equal to the interest rate applicable at the time to the Advances composing such Advance, without in any way prejudicing the rights and remedies of Borrower against such Defaulting Lender. The failure of any Lender to make any Advance on any Funding Date shall not relieve any other Lender of any obligation hereunder to make a Loan on such Funding Date, but no Lender shall be responsible for the failure of any other Lender to make the Advance to be made by such other Lender on any Funding Date. (c) Letters of Credit. (i) As a subfacility under the Revolving Line, the L/C Issuer agrees from time to time (subject to the terms and conditions of this Agreement) to issue or cause an Affiliate to issue commercial and standby letters of credit for the account of the Borrower (each a “Letter of Credit,” and collectively “Letters of Credit”) until thirty (30) days prior to the Revolving Maturity Date; provided, however, that the aggregate drawn and undrawn amount of all outstanding Letters of Credit (including the Existing Letters of Credit) shall not at any time exceed Twenty Million and 00/100 Dollars ($20,000,000) (the “L/C Sublimit”). For the avoidance of doubt, the L/C Sublimit shall be a part of, and not in addition to, the Revolving Line. The undrawn amount of all Letters of Credit shall be reserved under the Revolving Line and such amount shall not be available for borrowings. Borrower shall give Agent and the L/C Issuer notice prior to 10:00 a.m., Pacific time at least five (5) Business Days prior to the proposed date of issuance of each Letter of Credit, specifying the beneficiary, the proposed date of issuance and the expiry date of such Letter of Credit, and describing the proposed terms of such Letter of Credit and the nature of the transactions proposed to be supported thereby. The issuance by the L/C Issuer of any Letter of Credit shall, in addition to the conditions precedent set forth in Section 3, be subject to the conditions precedent that such Letter of Credit shall be satisfactory to the L/C Issuer and that Borrower shall have executed and delivered such application agreement and/or such other instruments and agreements relating to such Letter of Credit as the L/C Issuer shall have requested in its sole discretion (each, a “L/C Application”). The L/C Issuer shall deliver a copy of the L/C Application to the Agent. The form and substance of each Letter of Credit shall be subject to approval by the L/C Issuer, in its sole discretion. Each Letter of Credit shall be issued for a term, as designated by the Borrower, not to exceed three hundred and sixty-five (365) days; provided, 4 however, that no Letter of Credit shall have an expiration date later than five (5) Business Days prior to the Revolving Maturity Date unless Borrower has posted on the date of issuance of such Letter of Credit cash collateral to an account at the L/C Issuer and in which the Borrower grants a security interest to the Agent (for the benefit of the Lenders) in an amount equal to one hundred three percent (103%) of such Letter of Credit on terms satisfactory to the Agent and the L/C Issuer in their sole discretion, in which case the expiry date of such cash collateralized Letters of Credit may be up to one (1) year later than the fifth (5th) Business Day prior to the Revolving Maturity Date. The Letters of Credit may include a provision providing that their expiry date will automatically be extended each year for an additional one (1) year period unless the L/C Issuer delivers written notice to the contrary. Each Letter of Credit shall be subject to the additional terms and conditions of the Letter of Credit agreements, applications and any related documents required by the L/C Issuer in connection with the issuance of Letters of Credit. The L/C Issuer shall deliver to the Agent, concurrently with or promptly following its issuance of any Letter of Credit, a true and complete copy of each Letter of Credit. Promptly upon its receipt thereof, the Agent shall give notice to each Lender of the issuance of each Letter of Credit, specifying the amount thereof and the amount of such Lender’s percentage thereof. (ii) If the L/C Issuer shall honor a draft or other demand for payment presented or made under any Letter of Credit, the Borrower agrees to pay to the L/C Issuer an amount equal to the amount paid by the L/C Issuer in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Agent relative thereto not later than 1:00 p.m. Pacific time, in United States dollars, on (i) the Business Day that the Borrower received notice of such presentment and honor, if such notice is received prior to 11:00 a.m. Pacific time or (ii) the Business Day immediately following the day that the Borrower received such notice, if such notice is received after 11:00 a.m. Pacific time. (iii) If the L/C Issuer shall honor a draft or other demand for payment presented or made under any Letter of Credit, but the Borrower does not reimburse the L/C Issuer as required under clause (ii) above and the Revolving Line has not been terminated (whether by maturity, acceleration or otherwise), such drawing paid under such Letter of Credit shall be deemed an Advance under the Revolving Line and shall be repaid by the Borrower in accordance with the terms and conditions of this Agreement applicable to such Advances and the Agent will promptly notify the Lenders of such deemed request, and each such Lender shall make available to the Agent an amount equal to its pro rata share (based on its Revolving Loan Commitment Percentage) of the amount of such Advance; provided, however, that if Advances under the Revolving Line are not available, for any reason, at the time any drawing is paid, then the Borrower shall immediately pay to the L/C Issuer the full amount drawn, together with interest from the date such drawing is paid to the date such amount is fully repaid by the Borrower, at the rate of interest applicable to Advances under the Revolving Line. In such event the Borrower agrees that the Agent, in its sole discretion, may debit any account
17 reasonable assumptions are not viewed as facts and that actual results during the period or periods covered by such projections and forecasts as to future events may differ from the projected or forecasted results). 5.13 Beneficial Ownership Certification. The information included in the Beneficial Ownership Certification is true and correct in all respects. 5.14 Sanctions. None of the Loan Parties any of their Subsidiaries, any director or officer, or any employee, agent, or Affiliate, of the Loan Parties or any of their Subsidiaries is a Person that is, or is owned or controlled by Persons that are, (i) the subject of any sanctions administered or enforced by the US Department of the Treasury’s Office of Foreign Assets Control, the US Department of State, United Nations Security Council, the European Union, Her Majesty’s Treasury, or the Hong Kong Monetary Authority or other relevant sanctions authority (collectively, “Sanctions”), or (ii) located, organized or resident in a country or territory that is, or whose government is, the subject of Sanctions, including, without limitation, currently, Cuba, the Crimea, Donetsk and Luhansk regions of the Ukraine, Iran, North Korea, Sudan and Syria. 5.15 Anti-Corruption. None of the Loan Parties or Subsidiaries of the Loan Parties nor, to the knowledge of any of the Loan Parties, any director, officer, agent, employee, Affiliate or other Person acting on behalf of any of the Loan Parties or any Subsidiaries of the Loan Parties, is aware of or has taken any action, directly or indirectly, that would result in a violation by such Persons of any applicable anti-bribery law or Anti-Money Laundering Laws, rules or regulations in any applicable jurisdiction, including but not limited to the U.S. Foreign Corrupt Practices Act of 1977 (the “FCPA”). Furthermore, the Loan Parties and, to the knowledge of the Loan Parties, their respective Affiliates have conducted their business in compliance with the FCPA and similar laws, rules or regulations. Borrower will maintain in effect policies and procedures to promote compliance by the Loan Parties, their Subsidiaries, and their respective directors, officers, employees, and agents with the FCPA, the UK Bribery Act and any other applicable anti-corruption laws. 6. AFFIRMATIVE COVENANTS. Each Loan Party covenants that, until payment in full of all outstanding Obligations (other than inchoate indemnification or reimbursement obligations or other obligations which, by their terms, survive termination of this Agreement), and for so long as Lenders may have any commitment to make a Credit Extension hereunder, they shall do all of the following: 6.1 Good Standing and Government Compliance. Each Loan Party shall maintain its organizational existence and good standing in its state of incorporation or formation, and shall cause each of its Subsidiaries to maintain its organizational existence and good standing in its state of incorporation or formation, as applicable, and each shall maintain qualification and good standing in each other jurisdiction in which the failure to so qualify could reasonably be expected to have a Material Adverse Effect, and shall furnish to Agent the organizational identification number issued to such Loan Party by the authorities of the jurisdiction in which it is organized, if applicable. Each Loan Party shall meet, and shall cause each Subsidiary to meet, the minimum funding requirements of ERISA with respect to any employee benefit plans of such Loan Party or Subsidiary subject to ERISA. Each Loan Party shall comply in all material respects with 18 all applicable Environmental Laws, and maintain all material permits, licenses and approvals required thereunder where the failure to do so could reasonably be expected to have a Material Adverse Effect. Each Loan Party shall comply in all material respects, and shall cause each Subsidiary to comply, with all material statutes, laws, ordinances and government rules and regulations to which it is subject, and shall maintain, and shall cause each of its Subsidiaries to maintain, in force all licenses, approvals and agreements, in each case, the loss of which or failure to comply with which would reasonably be expected to have a Material Adverse Effect. 6.2 Financial Statements, Reports, Certificates. Borrower shall deliver to Agent: (i) (A) at all times prior to a Cash Trigger Event, as soon as available, but in any event within forty-five (45) days after the end of the first three (3) fiscal quarters of each fiscal year, a company prepared consolidated balance sheet and income statement covering the Loan Parties’ operations during such period, in a form reasonably acceptable to Agent and certified by a Responsible Officer, and (B) at all times after a Cash Trigger Event, as soon as available, but in any event within thirty (30) days after the end of each calendar month, a company prepared consolidated balance sheet and income statement covering the Loan Parties’ operations during such period, in a form reasonably acceptable to Agent and certified by a Responsible Officer; (ii) within five (5) days after Borrower submits its Form 10-K with the Securities and Exchange Commission, consolidated financial statements of Borrower and its consolidated Subsidiaries prepared in accordance with GAAP, consistently applied, and audited by a certified public accountant; (iii) copies of all statements, reports and notices sent or made available generally by any Loan Party to its security holders or to any holders of Subordinated Debt and all reports on Forms 10-K and 10-Q filed by any Loan Party or any Subsidiary with the Securities and Exchange Commission; (iv) promptly upon receipt of notice thereof by any Loan Party, a report of any legal actions pending or threatened in writing against any Loan Party or any Subsidiary that could reasonably be expected to result in damages or costs to any Loan Party or any Subsidiary of Five Million and 00/100 Dollars ($5,000,000) or more; (v) promptly upon receipt by any Loan Party, each management letter prepared by such Loan Party’s independent certified public accounting firm regarding such Loan Party’s management control systems; (vi) as soon as available, but in any event within ninety (90) days after the end of Borrower’s fiscal year, Borrower’s financial and business projections and budget for the upcoming year, with evidence of approval thereof by Borrower’s board of directors; and (vii) such budgets, sales projections, operating plans or other financial information generally prepared by Borrower in the ordinary course of business as Agent may reasonably request from time to time. (a) Not later than at all times prior to a Cash Trigger Event, as soon as available, but in any event within forty-five (45) days after the end of each fiscal quarter, and at all time after a Cash Trigger Event, as soon as available, but in any event within thirty (30) days after the end of each calendar month, the Borrower shall deliver to Agent, in a form reasonably acceptable to Agent, (i) reconciliations of all of the Loan Parties’ Accounts as shown on the report for the immediately preceding month to Loan Parties’ accounts receivable agings, to Loan Parties’ general ledger and to Loan Parties’ most recent financial statements, (ii) a detailed aged trial balance of all Accounts as of the end of the preceding fiscal quarter or calendar month, as applicable, specifying each Account’s debtor name and address, amount, invoice date and due date, showing any discount, allowance, credit, authorized return or dispute, and upon the request of Agent, including such proof of delivery, copies of invoices above $10,000 and invoice registers, copies of related 19 documents, repayment histories, status reports and other information as Agent may reasonably request, (iii) accounts payable agings, and (iv) accounts receivable agings. (b) Within thirty (30) days after the end of each month, Borrower shall deliver to Agent a Compliance Certificate certified as of the last day of the applicable month and signed by a Responsible Officer in substantially the form of Exhibit D hereto. (c) Promptly upon, but in any event within three (3) Business Days of any Responsible Officer of Borrower becoming aware of the occurrence or existence of an Event of Default hereunder, Borrower shall deliver to Agent a written statement of a Responsible Officer setting forth details of the Event of Default, and the action which the Loan Parties have taken or proposes to take with respect thereto. Borrower may deliver to Agent on an electronic basis any certificates, reports or information required pursuant to this Section 6.2, and Agent shall be entitled to rely on the information contained in the electronic files, provided that Agent in good faith believes that the files were delivered by a Responsible Officer. If Borrower delivers this information electronically, it shall also, upon the request of Agent, deliver to Agent by U.S. Mail, reputable overnight courier service or hand delivery, within five (5) Business Days of submission of the unsigned electronic copy, each submission bearing the physical signature of the Responsible Officer. 6.3 Taxes. Each Loan Party shall make, and cause each Subsidiary to make, due and timely payment or deposit of all material federal, state, and local Taxes, assessments, or contributions required of it by law, including, but not limited to, those laws concerning income taxes, F.I.C.A., F.U.T.A. and state disability, and will execute and deliver to Agent, on demand, proof reasonably satisfactory to Agent indicating that Borrower or a Subsidiary has made such payments or deposits and any appropriate certificates attesting to the payment or deposit thereof; provided that Borrower or a Subsidiary need not make any payment if the amount or validity of such payment is contested in good faith by appropriate proceedings and is reserved against (to the extent required by GAAP) by Borrower and such non-payment does not result in a Lien which is not a Permitted Lien. 6.4 Insurance. (a) The Loan Parties, at their expense, shall keep the Collateral insured against such hazards and risks, and in such amounts, as customarily insured against by other owners in similar businesses conducted in the locations where each Loan Party’s business is conducted on the date hereof. The Loan Parties shall also maintain liability and other insurance in amounts and of a type that are customary to businesses similar to the Loan Parties’ business. (b) All such policies of insurance shall be in such form, with such companies, and in such amounts as reasonably satisfactory to Agent. All policies of property insurance shall contain a lender’s loss payable endorsement, in a form reasonably satisfactory to Agent, showing Agent as lender’s loss payee, and all liability insurance policies shall show Agent as an additional insured and all such policies shall specify that the insurer must give at least thirty (30) days’ notice to Agent before canceling its policy 20 for any reason (or ten (10) days’ notice in the event of cancellation for nonpayment). All policies of insurance shall be addressed to Agent as follows: East West Bank as Agent for the Lenders, its Successors and / or Assigns, X.X. Xxx 00000, Xxxx xx Xxxxxxxx, XX 00000, Attention: Cue Health Inc. Account Manager. Upon Agent’s reasonable request, Borrower shall deliver to Agent certified copies of the policies of insurance and evidence of all premium payments. All proceeds payable under any such policy shall, unless Agent otherwise consents, be payable to Agent to be applied on account of the Obligations. Notwithstanding the foregoing sentence, if no Event of Default has occurred and is continuing, proceeds payable under any insurance policy will, at Borrower’s option, be payable to Borrower to repair or replace the property subject to the claim, provided that any such replacement property shall be deemed Collateral in which Agent has been granted a first priority security interest (subject to Permitted Liens); provided further, however, that the aggregate amount of all such proceeds paid directly to Borrower pursuant to this Section shall not exceed Five Million and 00/100 Dollars ($5,000,000) per fiscal year. 6.5 Accounts. Each Loan Party shall maintain all of its primary depository and operating accounts with Agent and, except as may be required for Borrower to comply with its investment policy, its primary investment accounts with Lender or Lenders’ Affiliates (covered by reasonably satisfactory control agreements) and, except as may be required for Borrower to comply with its investment policy, shall make best efforts to maintain all other accounts with Agent. All deposit accounts of any Loan Party, other than Excluded Accounts, shall be subject to control agreements in form and content reasonably acceptable to Agent. 6.6 Reserved. 6.7 Financial Covenants. (a) Asset Coverage Ratio. At all times, Borrower shall have a minimum asset coverage ratio of not less than 1.20 to 1.00 measured as (i) (a) the sum of unrestricted cash and Cash Equivalents maintained in deposit accounts or investment accounts with Agent not subject to any Lien other than the Liens in favor Agent plus the sum of unrestricted cash and Cash Equivalents maintained in deposit accounts or investment accounts subject to an account control agreement in favor of the Agent plus eighty percent (80%) of Eligible Accounts as Required Lenders determine are eligible, less (b) the amount of any sales tax liability of the Borrower outstanding at the time of measurement of Eligible Accounts, to (ii) the principal amount of all Obligations outstanding hereunder. (b) Minimum Remaining Months Liquidity. As measured on the last day of each calendar month at all times after a Cash Trigger Event or each fiscal quarter at all times before a Cash Trigger Event, Borrower shall maintain a minimum of six (6) months remaining liquidity measured as (i) the sum of unrestricted cash and Cash Equivalents maintained in deposit accounts or investment accounts with Agent not subject to any Lien other than the Liens in favor Agent plus the sum of unrestricted cash and Cash Equivalents maintained in deposit accounts or investment accounts subject to an account control agreement in favor of the Agent, plus the Revolving Loan availability divided by (ii) the monthly average of, for the trailing three months, net income (inclusive of grants received but not yet recognized per GAAP, if applicable and approved by Required
33 9.6 No Obligation to Pursue Others. Neither Agent nor any Lender has any obligation to attempt to satisfy the Obligations by collecting them from any other person liable for them and Agent may release, modify or waive any Collateral provided by any other Person to secure any of the Obligations, all without affecting Agent’s or Lenders’ rights against any Loan Party. Each Loan Party waives any right it may have to require Agent or any Lender to pursue any other Person for any of the Obligations. 9.7 Remedies Cumulative. Agent’s and Lenders’ rights and remedies under this Agreement, the Loan Documents, and all other agreements shall be cumulative. Agent and Lenders shall have all other rights and remedies not inconsistent herewith as provided under the Code, by law, or in equity. No exercise by Agent of one right or remedy shall be deemed an election, and no waiver by Agent of any Event of Default shall be deemed a continuing waiver. No delay by Agent shall constitute a waiver, election, or acquiescence by it. No waiver by Agent shall be effective unless made in a written document signed on behalf of Agent and then shall be effective only in the specific instance and for the specific purpose for which it was given. Each Loan Party expressly agrees that this Section 9.7 may not be waived or modified by Agent by course of performance, conduct, estoppel or otherwise. 9.8 Demand; Protest. Except as otherwise provided in this Agreement, each Loan Party waives demand, protest, notice of protest, notice of default or dishonor, notice of payment and nonpayment and any other notices relating to the Obligations. 10. NOTICES. Unless otherwise provided in this Agreement, all notices or demands by any party relating to this Agreement or any other agreement entered into in connection herewith shall be in writing and (except for financial statements and other informational documents which may be sent by first- class mail, postage prepaid) shall be personally delivered or sent by a recognized overnight delivery service, certified mail, postage prepaid, return receipt requested, or by electronic mail to any Loan Party or to Agent, as the case may be, at its addresses set forth below: If to any Loan Party: Cue Health Inc. 0000 Xxxxxxx Xxxxxx Xx., Xxxxx 000 Xxx Xxxxx, XX 00000 Attn: Xxxx Xxxxxxxxx, Chief Financial Officer Email: xxxx.xxxxxxxxx@xxx.xx With an optional but not legally required copy to each of: Cue Health, Inc. 0000 Xxxxxxx Xxxxxx Xx., Xxxxx 000 Xxx Xxxxx, XX 00000 Attn: Xxxxx Xxxxx Email: x.xxxxx@xxx.xx Cue Health, Inc. 0000 Xxxxxxx Xxxxxx Xxxx, Xxxxx 000 00 Xxx Xxxxx, XX 00000 Attn: Xxxxx Xxxxxx and Xxxxxx Xxxxxxxx Email: xxxxx@xxx.xx If to Agent: East West Bank 0000 Xxxxxxxx Xxxx., Xxxxx 000 Xxxxxxx Xxxxx, XX 00000 Attn: Xxxxxx Xxxxxxxxx Email: Xxxxxx.Xxxxxxxxx@XxxxXxxxXxxx.xxx The parties hereto may change the address at which they are to receive notices hereunder, by notice in writing in the foregoing manner given to the other. 11. CHOICE OF LAW AND VENUE; JURY TRIAL WAIVER; JUDICIAL REFERENCE. California law governs the Loan Documents without regard to principles of conflicts of law. The Loan Parties, Agent and Lenders each submit to the exclusive jurisdiction of the State and Federal courts in Los Angeles County, California; provided, however, that nothing in this Agreement shall be deemed to operate to preclude Agent or Lenders from bringing suit or taking other legal action in any other jurisdiction to realize on the Collateral or any other security for the Obligations, or to enforce a judgment or other court order in favor of Agent and/or Lenders. Each Loan Party expressly submits and consents in advance to such jurisdiction in any action or suit commenced in any such court, and each Loan Party hereby waives any objection that it may have based upon lack of personal jurisdiction, improper venue, or forum non conveniens and hereby consents to the granting of such legal or equitable relief as is deemed appropriate by such court. Each Loan Party hereby waives personal service of the summons, complaints, and other process issued in such action or suit and agrees that service of such summons, complaints, and other process may be made by registered or certified mail addressed to Borrower at the address set forth in, or subsequently provided by Borrower in accordance with, Section 10 of this Agreement and that service so made shall be deemed completed upon the earlier to occur of Borrower’s actual receipt thereof or three (3) days after deposit in the U.S. mails, proper postage prepaid. IF AND ONLY TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE LOAN PARTIES, AGENT AND LENDERS EACH WAIVE THEIR RIGHT TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR BASED UPON THIS AGREEMENT, THE LOAN DOCUMENTS OR ANY CONTEMPLATED TRANSACTION, INCLUDING CONTRACT, TORT, BREACH OF DUTY AND ALL OTHER CLAIMS. THIS WAIVER IS A MATERIAL INDUCEMENT FOR BOTH PARTIES TO ENTER INTO THIS AGREEMENT. EACH PARTY HAS REVIEWED THIS WAIVER WITH ITS COUNSEL. WITHOUT INTENDING IN ANY WAY TO LIMIT THE PARTIES’ AGREEMENT TO WAIVE THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IF PERMITTED BY APPLICABLE LAW, if the waiver of the right to a trial by jury is not enforceable, the parties hereto agree that any and all disputes or controversies of any nature between them arising at any time shall be decided by a reference to a private judge, who shall be a retired state or federal court 35 judge, mutually selected by the parties or, if they cannot agree, then any party may seek to have a private judge appointed in accordance with California Code of Civil Procedure §§ 638 and 640 (or pursuant to comparable provisions of federal law if the dispute falls within the exclusive jurisdiction of the federal courts). The reference proceedings shall be conducted pursuant to and in accordance with the provisions of California Code of Civil Procedure §§ 638 through 645.1, inclusive. The private judge shall have the power, among others, to grant provisional relief, including without limitation, entering temporary restraining orders, issuing preliminary and permanent injunctions and appointing receivers. All such proceedings shall be closed to the public and confidential and all records relating thereto shall be permanently sealed. If during the course of any dispute, a party desires to seek provisional relief, but a judge has not been appointed at that point pursuant to the judicial reference procedures, then such party may apply to the Court for such relief. The proceeding before the private judge shall be conducted in the same manner as it would be before a court under the rules of evidence applicable to judicial proceedings. The parties shall be entitled to discovery which shall be conducted in the same manner as it would be before a court under the rules of discovery applicable to judicial proceedings. The private judge shall oversee discovery and may enforce all discovery rules and orders applicable to judicial proceedings in the same manner as a trial court judge. The parties agree that the selected or appointed private judge shall have the power to decide all issues in the action or proceeding, whether of fact or of law, and shall report a statement of decision thereon pursuant to California Code of Civil Procedure § 644(a). Nothing in this paragraph shall limit the right of any party at any time to exercise self-help remedies, foreclose against collateral, or obtain provisional remedies. The private judge shall also determine all issues relating to the applicability, interpretation, and enforceability of this paragraph. The parties agree that time is of the essence in conducting the referenced proceedings. The parties shall promptly and diligently cooperate with one another and the referee, and shall perform such acts as may be necessary to obtain prompt and expeditious resolution of the dispute or controversy in accordance with the terms hereof. The costs shall be borne equally by the parties. 12. GENERAL PROVISIONS. 12.1 Successors and Assigns. (a) This Agreement shall bind and inure to the benefit of the respective successors and permitted assigns of each of the parties and shall bind all persons who become bound as a debtor to this Agreement; provided, however, that neither this Agreement nor any rights hereunder may be assigned by Borrower without the prior written consent of the Agent and each Lender, which each such consent may be granted or withheld in the Agent’s or such Lender’s sole discretion, as applicable. Subject to the restrictions set forth in clause (b) below, each Lender shall have the right to sell, transfer, assign negotiate, or grant participation in all or any part of, or any interest in, such Lender’s obligations, rights and benefits hereunder. (b) No Lender may assign any or all of its interests hereunder to (i) the Borrower or any of the Borrower’s Affiliates or Subsidiaries, (ii) any Defaulting Lender, (iii) a natural person or an investment vehicle or trust for the benefit of a natural person. All assignments by a Lender shall be subject to the following consents: 36 (i) unless an Event of Default has occurred, the consent of the Borrower (such consent not to be unreasonably withheld or delayed) shall be required for assignments to a Person that is not a Lender, an Affiliate of a Lender or an Approved Fund provided that the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Agent within five (5) Business Days after having received notice thereof and provided, further, that the Borrower’s consent shall not be required during the primary syndication of the Revolving Loan; (ii) the consent of the Agent (such consent not to be unreasonably withheld or delayed) shall be required for assignments to a Person that is not a Lender, an Affiliate of a Lender or an Approved Fund; and (iii) the consent of each L/C Issuer (such consent not to be unreasonably withheld or delayed). (c) Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided, no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto. 12.2 Indemnification. Borrower shall defend, indemnify and hold harmless Lenders and their respective officers, employees, and agents against: (a) all obligations, demands, claims, and liabilities claimed or asserted by any other party in connection with the transactions contemplated by this Agreement and/or the Loan Documents; and (b) all losses or Lender Expenses in any way suffered, incurred, or paid by any Lender, its officers, employees and agents as a result of or in any way arising out of, following, or consequential to transactions between Lenders and Borrower whether under this Agreement, or otherwise (including without limitation reasonable attorneys’ fees and expenses), except, in each case, for obligations, demands, claims, liabilities, losses and expenses caused by Agent and or Lenders’ gross negligence or willful misconduct as determined by a court of competent jurisdiction by final and nonappealable judgment. 12.3 Time of Essence. Time is of the essence for the performance of all obligations set forth in this Agreement. 12.4 Severability of Provisions. Each provision of this Agreement shall be severable from every other provision of this Agreement for the purpose of determining the legal enforceability of any specific provision. 12.5 Correction of Loan Documents. Agent may correct patent errors and fill in any blanks in this Agreement and the other Loan Documents consistent with the agreement of the parties so long as Agent provides Borrower with written notice of such correction and allows Borrower at least ten (10) days to object to such correction.
49 Loan Document or with respect to any transaction contemplated in any Loan Document, in each case based on such documents and information as it shall deem appropriate. Except for documents expressly required by any Loan Document to be transmitted by Agent to Lenders, Agent shall not have any duty or responsibility to provide any Lender with any credit or other information concerning the business, prospects, operations, property, financial and other condition or creditworthiness of any Loan Party or any Affiliate of any Loan Party that may come in to the possession of Agent or any of its Related Persons, except to the extent of any costs and expenses resulting from the gross negligence or willful misconduct as determined by a court of competent jurisdiction by final and nonappealable judgment of Agent or, as the case may be, such officers, employees, affiliates or agents (each as determined in a final, non-appealable judgment by a court of competent jurisdiction). 13.8 Expenses; Indemnities. (a) Each Lender agrees to reimburse Agent and each of its Related Persons (to the extent not reimbursed by any Loan Party) promptly upon demand, severally and ratably, for any costs and expenses (including fees, charges and disbursements of financial, legal and other advisors and Taxes paid in the name of, or on behalf of, any Loan Party) that may be incurred by Agent or any of its Related Persons in connection with the preparation, syndication, execution, delivery, administration, modification, consent, waiver or enforcement of, or the taking of any other action (whether through negotiations, through any work-out, bankruptcy, restructuring or other legal or other proceeding (including, without limitation, preparation for and/or response to any subpoena or request for document production relating thereto) or otherwise) in respect of, or legal advice with respect to its rights or responsibilities under, any Loan Document. (b) Each Lender further agrees, within thirty (30) days after demand therefor, to indemnify Agent (to the extent not reimbursed by any Loan Party), severally and ratably, from and against liabilities that may be imposed on, incurred by or asserted against Agent in any matter relating to or arising out of, in connection with or as a result of any Loan Document or any other act, event or transaction related, contemplated in or attendant to any such document, or, in each case, any action taken or omitted to be taken by Agent or any of its Related Persons under or with respect to any of the foregoing except to the extent of liabilities resulting from the gross negligence or willful misconduct as determined by a court of competent jurisdiction by final and nonappealable judgment of Agent or, as the case may be, such officers, employees, affiliates or agents (each as determined in a final, non-appealable judgment by a court of competent jurisdiction). A certificate as to the amount of such payment or liability delivered to any Lender by Agent shall be conclusive absent demonstrable error. Each Lender hereby authorizes Agent to apply any and all amounts at any time owing to such Lender under any Loan Document or otherwise payable by Agent to such Lender from any other source against any amount due to Agent under this Section 13.8(b). 13.9 Resignation of Agent. (a) Agent may resign at any time by delivering notice of such resignation to Lenders and Borrower, effective on the date set forth in such notice or, if no 50 such date is set forth therein, upon the date such notice shall be effective in accordance with the terms of this Section 13.9. If Agent delivers any such notice, Lenders shall have the right to appoint a successor Agent. If, after thirty (30) days after the date of retiring Agent’s notice of resignation, no successor Agent has been appointed by Lenders that has accepted such appointment, then the retiring Agent may, on behalf of Lenders, appoint a successor Agent from among Lenders. (b) Effective immediately upon its resignation, (i) the retiring Agent shall be discharged from its duties and obligations under the Loan Documents, (ii) Lenders shall assume and perform all of the duties of Agent until a successor Agent shall have accepted a valid appointment hereunder, (iii) the retiring Agent shall no longer have the benefit of any provision of any Loan Document other than with respect to any actions taken or omitted to be taken while such retiring Agent was, or because such Agent had been, validly acting as Agent under the Loan Documents and (iv) the retiring Agent shall take such action as may be reasonably necessary to assign to the successor Agent its rights as Agent under the Loan Documents. Effective immediately upon its acceptance of a valid appointment as Agent, a successor Agent shall succeed to, and become vested with, all the rights, powers, privileges and duties of the retiring Agent under the Loan Documents. 13.10 Release of Collateral or Guarantors. Each Lender hereby consents to the release and hereby directs Agent to release or subordinate the following: (a) any Subsidiary of Borrower from its guaranty of any Obligation if all of the equity interests of such Subsidiary are sold or transferred in a transaction permitted by the Loan Documents; and (b) any Lien held by Agent for the benefit of Lenders against (i) any Collateral that is sold, transferred, conveyed or otherwise disposed of by a Loan Party in a transaction permitted by the Loan Documents (including pursuant to a waiver or consent), (ii) any property subject to a Lien permitted under clause (n) of the definition of Permitted Lien and (iii) all of the Collateral and all Loan Parties, upon termination of the Revolving Line or the occurrence of the Revolving Maturity Date. Each Lender hereby directs Agent, and Agent hereby agrees, upon receipt of notice from the Borrower, to execute and deliver or file such documents and to perform other actions reasonably necessary to release the guaranties and Liens when and as directed in this Section 13.10. [Balance of Page Intentionally Left Blank] (Signature Page to Loan and Security Agreement) IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first above written. CUE HEALTH INC., as Borrower By: /s/ Xxxx Xxxxxxxxx Xxxx Xxxxxxxxx Chief Financial Officer (Signature Page to Loan and Security Agreement) EAST WEST BANK, as Agent and Lender By: /s/ Xxxxxx Xxxxxxxxx Xxxxxx Xxxxxxxxx Senior Vice President
(Signature Page to Loan and Security Agreement) COMERICA BANK, as Lender By: /s/ Xxxxxx Xxxxxxxxx Xxxxxx Xxxxxxxxx Group Manager Exhibit A – Page 1 EXHIBIT A DEFINITIONS “Accounts” means all presently existing and hereafter arising “accounts,” as such term is defined in Section 9102 of the Code, contract rights, instruments (including those evidencing indebtedness owed to Borrower by its Affiliates), general intangibles, payment intangibles, chattel paper (including electronic chattel paper) and all other forms of obligations owing to Borrower arising out of the sale or lease of goods or inventory (including, without limitation, the licensing of digital content, software and other technology) or the rendering of services by Borrower and any and all credit insurance, guaranties, and other security therefor, as well as all merchandise returned to or reclaimed by Borrower and Borrower’s Books relating to any of the foregoing. “Advance” or “Advances” means a cash advance or cash advances or issuance of a Letter of Credit under the Revolving Line. “Affiliate” means, with respect to any Person, any Person that owns or controls directly or indirectly such Person, any Person that controls or is controlled by or is under common control with such Person, and each of such Person’s senior executive officers, directors, and partners. “Anti-Money Laundering Laws” means the PATRIOT Act; the U.S. Money Laundering Control Act of 1986 and the regulations and rules promulgated thereunder, as amended from time to time, the U.S. Bank Secrecy Act and the regulations and rules promulgated thereunder, as amended from time to time, and corresponding laws of jurisdictions in which the Borrower operates or in which the proceeds of the Loans will be used or from which repayments of the Obligations will be derived. “Approved Fund” means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender. “Beneficial Ownership Certification” means a certification regarding beneficial ownership required by the Beneficial Ownership Regulation, which certification shall be substantially in form and substance satisfactory to Agent and the Lenders. “Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230. “Borrower State” means Delaware, the state under whose laws Borrower is organized. “Borrower’s Books” means all of Borrower’s books and records including: ledgers; records concerning Borrower’s assets or liabilities, the Collateral, business operations or financial condition; and all computer programs, or tape files, and the equipment, containing such information. “Business Day” means any day that is not a Saturday, Sunday, or other day on which banks in the State of California or the State of New York are authorized or required to close. Exhibit A – Page 2 “Cash Equivalents” means (a) any readily-marketable securities (i) issued by, or directly, unconditionally and fully guaranteed or insured by the United States federal government or (ii) issued by any agency of the United States federal government the obligations of which are fully backed by the full faith and credit of the United States federal government, (b) any readily- marketable direct obligations issued by any other agency of the United States federal government, any state of the United States or any political subdivision of any such state or any public instrumentality thereof, in each case having a rating of at least “A-1” from S&P or at least “P-1” from Moody’s, (c) any commercial paper rated at least “A-1” by S&P or “P-1” by Moody’s and issued by any Person organized under the laws of any state of the United States, (d) any Dollar- denominated time deposit, certificate of deposit, overnight bank deposit or bankers’ acceptance issued or accepted by any Lender or any commercial bank that is, in each case, rated investment grade by both S&P and Moody’s, (e) interests in any money market fund registered under the Investment Company Act of 1940 that (i) has substantially all of its assets invested continuously in the types of investments referred to in clause (a), (b), (c) or (d) above with maturities as set forth in the proviso below, (ii) has net assets in excess of Five Hundred Million and 00/100 Dollars ($500,000,000) and (iii) has obtained from either S&P or Moody’s the highest rating obtainable for money market funds in the United States, and (f) other cash equivalents determined by the Agent to have a risk equivalent to items rated at least “A-1” by S&P or “P-1” by Moody’s and otherwise acceptable from time to time to the Agent; provided, however, that the maturities of all obligations specified in any of clauses (a) through (d) above shall not exceed 365 days. “Cash Management Obligations” means the obligations of the Loan Parties to the Agent or any Lender under one or more credit cards, debit cards, cash management agreements, deposit account agreements, treasury agreements, sweep agreements or similar agreements pertaining to cash management services. "Cash Trigger Event" means the earlier of (i) December 31, 2022, and (i) the first date on which Borrower's aggregate cash and Cash Equivalents is less than Two Hundred Million and 00/100 Dollars ($200,000,000.00), measured as of the last day of the calendar month. “Change in Control” shall mean a transaction in which any “person” or “group” (other than Borrower’s existing investors) (within the meaning of Section 13(d) and 14(d)(2) of the Securities Exchange Act of 1934) becomes the “beneficial owner” (as defined in Rule 13d-3 under the Securities Exchange Act of 1934), directly or indirectly, of a sufficient number of shares of all classes of stock then outstanding of Borrower ordinarily entitled to vote in the election of directors, empowering such “person” or “group” to elect a majority of the Board of Directors of Borrower, who did not have such power before such transaction. “Change in Law” means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that notwithstanding anything herein to the contrary, (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Exhibit A – Page 3 Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued. “Chief Executive Office State” means California, where Borrower’s chief executive office is located. “Closing Date” means the date of this Agreement. “Code” means the California Uniform Commercial Code as amended or supplemented from time to time. “Collateral” means all of Borrower’s right, title and interest in and to the property described on Exhibit B attached hereto and all Intellectual Property Collateral except to the extent (i) any such property is nonassignable by its terms without the consent of the licensor thereof or another party (but only to the extent such prohibition on transfer remains in place and is enforceable under applicable law, including, without limitation, Sections 9406 and 9408 of the Code) provided that upon the cessation of any such restriction or prohibition, such property shall automatically become part of the Collateral, (ii) the granting of a security interest therein is contrary to applicable law, provided that upon the cessation of any such restriction or prohibition, such property shall automatically become part of the Collateral, (iii) constitutes the equity interests of a controlled foreign corporation (as defined in the IRC), in excess of such amount of the voting power of all classes of equity interests of such controlled foreign corporations entitled to vote as would result in materially adverse tax consequences to the Loan Parties if such amount was included as Collateral hereunder, provided that the amount not excluded shall never be less than sixty-five percent (65%), (iv) is an intent-to-use trademark, (v) is an asset as to which the costs of creating or perfecting a security interest or pledge exceeds the benefit to Agent and Lenders to be obtained therefrom, as determined by Agent from time to time; provided that in no case shall the definition of “Collateral” exclude any Accounts, proceeds of the disposition of any property, or general intangibles consisting of rights to payment; or (vi) any such property constitutes Excluded Accounts. “Collateral State” means the state or states where the Collateral is located, which is California. “Collection Account” has the meaning set forth in Section 4.4. “Contingent Obligation” means, as applied to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to (i) any indebtedness, lease, dividend, letter of credit or other obligation of another, including, without limitation, any such obligation directly or indirectly guaranteed, endorsed, co-made or discounted or sold with recourse by that Person, or in respect of which that Person is otherwise directly or indirectly liable; (ii) any obligations with respect to undrawn letters of credit, corporate credit cards or merchant services issued for the account of that Person; and (iii) all obligations arising under any interest rate, currency or commodity swap agreement, interest rate cap agreement, interest rate collar agreement, or other agreement or arrangement designated to protect a Person against fluctuation in interest rates, currency exchange rates or commodity prices; provided, however, that the term “Contingent
Exhibit A – Page 4 Obligation” shall not include endorsements for collection or deposit in the ordinary course of business or customary indemnity or warranty obligations entered into in connection with any acquisition or any disposition permitted hereunder. The amount of any Contingent Obligation shall be deemed to be an amount equal to the stated or determined amount of the primary obligation in respect of which such Contingent Obligation is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by such Person in good faith; provided, however, that such amount shall not in any event exceed the maximum amount of the obligations under the guarantee or other support arrangement. “Credit Extension” means each Advance or any other extension of credit by Lenders to or for the benefit of Borrower hereunder. “Default” means any event or condition that constitutes an Event of Default or that, with the giving of any notice, the passage of time, or both, would be an Event of Default. “Disqualified Stock” means any equity, stock or stock equivalent which, by its terms, or upon the happening of any event or condition (a) matures or is mandatorily redeemable or redeemable at the option of the holder thereof (in whole or in party) on or prior to the date that is ninety-one (91) days following the Revolving Maturity Date, (b) is convertible into or exchangeable for debt securities, any equity, stock or stock equivalents described in clause (a), in each case, at any time on or prior to the date that is ninety (90) days following the Revolving Maturity Date, or (c) is entitled to receive scheduled dividends or distributions in cash prior to the time that the Obligations (other than unasserted claims of contingent indemnification obligations) are paid in full. “Eligible Accounts” means those Accounts that arise in the ordinary course of Borrower’s business that comply with all of Borrower’s representations and warranties to Agent set forth in Section 5.3; provided, that, subject to Section 12.6, Agent may change the standards of eligibility by giving Borrower prior written notice. Unless otherwise agreed to by Agent, Eligible Accounts shall not include the following: (a) Accounts that the account debtor has failed to pay in full (i) within ninety (90) days of the original invoice date or (ii) within sixty (60) days of the original due date; (b) credit balances over sixty (60) days of the original due date or over ninety (90) days from the original invoice date; (c) Accounts with respect to an account debtor twenty-five percent (25%) of whose Accounts the account debtor has failed to pay (i) within ninety (90) days of invoice date or (ii) within sixty (60) days of the original due date; (d) Accounts with respect to an account debtor whose total obligations to Borrower exceed twenty-five percent (25%) of all Accounts, except that the foregoing limitation shall not apply to Accounts owing from the U.S. Department of Defense, the U.S. Department of Health & Human Services and Google and Google's designated distributor; (e) Accounts with respect to which the account debtor does not have its principal place of business in the United States; Exhibit A – Page 5 (f) Accounts with respect to which the account debtor is the United States or any department, agency, or instrumentality of the United States, except for (i) Accounts of the United States or any department, agency, or instrumentality of the United States if the payee has assigned its payment rights to Bank and the assignment has been acknowledged under the Assignment of Claims Act of 1940 (31 U.S.C. 3727), (ii) Accounts owing from the U.S. Department of Defense and the U.S. Department of Health & Human Services pursuant to contracts in place as of the Closing Date, and (iii) Accounts approved by the Required Lenders in writing or as to which the Required Lenders have waived compliance with Section 4.2(b); (g) Accounts with respect to which Borrower is liable to the account debtor for goods sold or services rendered by the account debtor to Borrower, or otherwise subject to set-off or counterclaim or contra accounts, but only to the extent of any amounts owing to the account debtor against amounts owed to Borrower, such set-off or such counterclaim; (h) Accounts with respect to which goods are placed on consignment, guaranteed sale, sale or return, sale on approval, xxxx and hold, demo or promotional, or other terms by reason of which the payment by the account debtor may be conditional; (i) Accounts with respect to which the account debtor is an officer, employee, agent, Subsidiary or Affiliate of Borrower; (j) Accounts with respect to which the account debtor disputes liability or makes any claim with respect thereto that there may be a basis for dispute (but only to the extent of the amount subject to such dispute or claim), or is subject to any Insolvency Proceeding, or becomes insolvent, or goes out of business; (k) Accounts the collection of which Agent reasonably determines after inquiry and consultation with Borrower to be doubtful, including, for the avoidance of doubt, any Accounts with an account debtor who is subject to a bankruptcy or insolvency proceeding; (l) Accounts owing by an account debtor organized under the law of a jurisdiction outside of the United States and Accounts not owed in United States dollars unless supported by adequate credit insurance acceptable to Agent; (m) retentions and hold-backs; (n) cash or cash on demand Accounts; (o) Accounts that have not yet been billed to the account debtor or that relate to deposits (such as good faith deposits) or other property of the account debtor held by Borrower for the performance of services or delivery of goods which Borrower has not yet performed or delivered and unconditionally accepted by the account debtor; and (p) Accounts arising from direct to consumer contracts until such time as monthly updates to the direct to consumer Accounts are being provided hereunder. “Environmental Laws” means all laws, rules, regulations, orders and the like issued by any federal state, local foreign or other Governmental Authority pertaining to the environment or Exhibit A – Page 6 to any hazardous materials or wastes, toxic substances, flammable, explosive or radioactive materials, asbestos or other similar materials. “ERISA” means the Employee Retirement Income Security Act of 1974, as amended, and the regulations thereunder. “Event of Default” has the meaning assigned in Article 8. “Excluded Accounts” means deposit accounts exclusively used for payroll, payroll taxes and other employee wage and benefit payments to or for the benefit of Borrower’s employees or any deposit account established as trust, escrow, fiduciary or third-party cash collateral accounts permitted hereunder. “Excluded Taxes” means, with respect to the Agent, any Lender or any other recipient of any payment made by or on account of any obligation of any Loan Party under any Loan Document, Taxes imposed on or measured by its net income or net profits (however denominated), franchise Taxes imposed on it in lieu of net income Taxes and branch profits Taxes imposed on it, in each case, by any jurisdiction (or any political subdivision thereof) (a) as a result of the recipient being organized under the laws of, or having its principal office located in, or, in the case of any Lender, its applicable lending office in such jurisdiction, or (b) as a result of any other present or former connection between such recipient and such jurisdiction (other than connections arising solely from such recipient 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 Loan Document, or sold or assigned an interest in any Advance or Loan Document). “Existing Letters of Credit” means, individually and collectively, (a) the following Letters of Credit issued by East West Bank: (i) that certain Irrevocable Transferrable Standby Letter of Credit No. 21OSL004814 issued March 1, 2021, in the amount of $12,000,000 under which Sanmina Corporation is the beneficiary and Borrower is the applicant, and (ii) that certain Irrevocable Transferrable Standby Letter of Credit No. 21OSL004975 issued November 4, 2021, in the amount of $5,000,000 under which Affirm, Inc. is the beneficiary and Borrower is the applicant and (b) the following Letters of Credit issued by Comerica Bank: (i) that certain Letter of Credit No. OSB11611C issued by Comerica Bank on December 11, 2020, in the amount of $101,565 under which ARE SD-REGION NO. 25, LLC is the beneficiary and Borrower is the applicant, (ii) that certain Letter of Credit No. OSB16721C issued by Comerica Bank on December 11, 2020, in the amount of $75,240 under which BMR-MODA Sorrento LP is the beneficiary and Borrower is the applicant, and (iii) that certain Letter of Credit No OSB19688C issued by Comerica Bank on July 15, 2020, in the amount of $350,000 under which ARE-SD Region NO. 67 LLC is the beneficiary and Borrower is the applicant. “Field Exam” means any visit and inspection of the properties, assets and records of any Loan Party during the term of this Agreement, which shall include access to such properties, assets and records sufficient to permit the Agent or its representatives to examine, audit and make extracts from any Loan Party’s books and records, make examinations and audits of any Loan Party’s other financial matters and Collateral as Agent deems appropriate, and discussions with its officers, Exhibit A – Page 7 employees, agents, advisors and independent accountants regarding such Loan Party’s business, financial condition, assets, prospects and results of operations. “Fund” means any Person (other than a natural person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans, bonds and similar extensions of credit in the ordinary course of its activities. “GAAP” means generally accepted accounting principles, consistently applied, as in effect from time to time. “Governmental Authority” means any federal, state, municipal, national, supranational or other government, governmental department, commission, board, bureau, court, agency or instrumentality or political subdivision thereof or any entity, officer or examiner exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to any government or any court, in each case whether associated with the United States of America, any State thereof or the District of Columbia or a foreign entity or government. “Guarantor” means any Person that has guaranteed the Obligations of Borrower under the Loan Documents pursuant to a document in form and substance satisfactory to Agent in its reasonable discretion. “Hedging Agreements” means any and all agreements, devices or arrangements designed to protect at least one of the parties thereto from the fluctuations of interest rates, commodity prices, exchange rates or forward rates applicable to such party’s assets, liabilities or exchange transactions, including dollar-denominated or cross-currency interest rate exchange agreements, forward currency exchange agreements, interest rate cap or collar protection agreements, forward rate currency or interest rate options, puts and warrants or any similar derivative transactions. “Indebtedness” means (a) all indebtedness for borrowed money or the deferred purchase price of property or services, including without limitation reimbursement and other obligations with respect to surety bonds and letters of credit (to the extent not cash collateralized), (b) all obligations evidenced by notes, bonds, debentures or similar instruments, (c) all capital lease obligations that have been or required to be accounted for as a capital lease on a balance sheet prepared in accordance with GAAP and (d) all Contingent Obligations, if any. “Indemnified Taxes” means (i) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Loan Party under any Loan Document and (ii) to the extent not otherwise described in (i), Other Taxes. “Insolvency Proceeding” means any proceeding commenced by or against any Person or entity under any provision of the United States Bankruptcy Code, as amended, or under any other bankruptcy or insolvency law, including assignments for the benefit of creditors, formal or informal moratoria, compositions, extension generally with its creditors, or proceedings seeking reorganization, arrangement, or other relief. “Intellectual Property Collateral” means all of Borrower’s right, title, and interest in and to the following:
Exhibit A – Page 8 (a) copyrights, trademarks and patents; (b) Any and all trade secrets, and any and all intellectual property rights in computer software and computer software products now or hereafter existing, created, acquired or held; (c) Any and all design rights which may be available to Borrower now or hereafter existing, created, acquired or held; (d) Any and all claims for damages by way of past, present and future infringement of any of the rights included above, with the right, but not the obligation, to xxx for and collect such damages for said use or infringement of the intellectual property rights identified above; (e) All licenses or other rights to use any of the copyrights, trademarks and patents, and all license fees and royalties arising from such use to the extent permitted by such license or rights; (f) All amendments, renewals and extensions of any of the copyrights, trademarks and patents; and (g) All proceeds and products of the foregoing, including without limitation all payments under insurance or any indemnity or warranty payable in respect of any of the foregoing. “Investment” by any Person means any beneficial ownership of (including stock, partnership or limited liability company interest or other securities) any other Person, or any loan, advance or capital contribution to any other Person. “IRC” means the Internal Revenue Code of 1986, as amended, and the regulations thereunder. “L/C Issuer” means, as applicable (a) in the case of the Existing Letters of Credit issued by Comerica Bank, Comerica Bank and (b) in the case of the Existing Letters of Credit issued by East West Bank and each other Letter of Credit, East West Bank. “Lender Expenses” means all reasonable documented out-of-pocket costs or expenses (including reasonable documented attorneys’ fees and out-of-pocket expenses, generated by outside counsel) incurred in connection with the preparation, negotiation, administration, and enforcement of the Loan Documents; reasonable Collateral audit fees; and Agent and Lenders’ reasonable documented attorneys’ fees and out-of-pocket expenses (generated by outside counsel) incurred in amending, enforcing or defending the Loan Documents (including fees and expenses of appeal), incurred before, during and after an Insolvency Proceeding, whether or not suit is brought. “Lender Hedging Agreement” means any Hedging Agreement entered into between (i) the Borrower or any Subsidiary thereof and (ii) the Agent, any Affiliate of the Agent, any Lender, or any Affiliate of any Lender. “Lien” means any mortgage, lien, deed of trust, charge, pledge, security interest or other encumbrance. Exhibit A – Page 9 “Loan Documents” means, collectively, this Agreement, any note or notes executed by Borrower in connection with this Agreement or any Loan Document, and any other document, instrument or agreement entered into in connection with this Agreement or any Loan Document, all as amended, restated, amended and restated, modified, supplemented or extended from time to time. “Loan Party” means any Borrower or Guarantor. “Material Adverse Effect” means (a) a material impairment in the perfection or priority of Agent’s Lien in the Collateral or in the value of such Collateral (taken as a whole); (b) any event, change, circumstance, effect or other matter that either individually or in the aggregate with all other events, changes, circumstances, effects or other matters, has been materially adverse to the to the business, assets, liabilities, results of operations or financial condition of Borrower and its Subsidiaries, taken as a whole, or prevents or materially delays or materially impairs the ability of Borrower to perform its obligations under this Agreement; or (c) a material impairment of the prospect of repayment of any portion of the Obligations when due, each of the foregoing as determined by the Agent or the Required Lenders in their reasonable discretion. “Moody’s” means Xxxxx’x Investors Service, Inc., or any successor to its rating agency business. “Negotiable Collateral” means Collateral regarding which a security interest under the Code is or may be perfected by possession or control. “Non-Consenting Lender” means any Lender that does not approve any consent, waiver or amendment that (a) requires the approval of all or all affected Lenders in accordance with the terms of Section 12.6 and (b) has been approved by the Required Lenders. “Obligations” means all debt, principal, interest, Lender Expenses, Letter of Credit outstanding, and other amounts owed to Lenders by Borrower pursuant to this Agreement or any other Loan Document, including any and all obligations under Lender Hedging Agreements and any and all Cash Management Obligations, whether absolute or contingent, due or to become due, now existing or hereafter arising, including any interest that accrues after the commencement of an Insolvency Proceeding and including any debt, liability, or obligation owing from Borrower to others that Lenders may have obtained by assignment or otherwise. “OFAC” means the Office of Foreign Asset Control of the United States Treasury Department. “Other Connection Taxes” means, with respect to the Agent, any Lender or any other recipient of any payment made by or on account of any obligation of any Loan Party under any Loan Document, Taxes imposed as a result of a present or former connection between such recipient and the jurisdiction imposing such Tax (other than connections arising from such recipient 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 Loan Document, or sold or assigned an interest in any Advance or Loan Document). Exhibit A – Page 10 “Other Taxes” means 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, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment at the request of a Loan Party). “Periodic Payments” means all installments or similar recurring payments that Borrower may now or hereafter become obligated to pay to Agent pursuant to the terms and provisions of any instrument, or agreement now or hereafter in existence between Borrower and Lenders. “Permitted Indebtedness” means: (a) Indebtedness of Borrower in favor of Lenders arising under this Agreement or any other Loan Document; (b) Indebtedness existing on the Closing Date and disclosed in the Schedule; (c) Indebtedness (i) owing by any Loan Party to any other Loan Party, (ii) owing by any Subsidiary that is not a Loan Party to any other Subsidiary that is not a Loan Party, and (iii) owing by any Subsidiary that is not a Loan Party to any Loan Party in an aggregate principal amount not to exceed Five Million and 00/100 Dollars ($5,000,000) at any time outstanding; (d) Reimbursement obligations in connection with corporate credit cards in the ordinary course of business; (e) Subordinated Debt; (f) Indebtedness of any Acquired Subsidiary incurred prior to the date of its acquisition by Borrower in an amount not to exceed One Million and 00/100 Dollars ($1,000,000); (g) Endorsements of negotiable instruments for deposit or collection in the ordinary course of business; (h) (i) Indebtedness in the form of deferred purchase price adjustments, customary indemnification obligations and working capital adjustments and similar obligations (including all seller notes), hold-backs, earn-outs and other contingent payment obligations not yet due and payable in connection with the acquisition of an Acquired Subsidiary, in each case on subordination terms reasonably acceptable to Agent, and (ii) the Borrower shall use commercially reasonable efforts to subordinate such contingent payment obligations and, if after such use of commercially reasonable efforts the Borrower is unable to obtain such subordination, such Indebtedness shall be permitted up to an aggregate amount not to exceed Five Million and 00/100 Dollars ($5,000,000) for such contingent payment obligations to be paid prior to the Revolving Maturity Date and in any amount for such contingent payment obligations reasonably expected to be paid after the Revolving Maturity Date; (i) Indebtedness to trade creditors, intercompany charges of expenses, intercompany payables and other accrued obligations, in each case incurred in the ordinary course of business; Exhibit A – Page 11 (j) Indebtedness of Borrower secured by a lien described in clause (n) of the defined term “Permitted Liens,” provided such Indebtedness at the time incurred does not exceed the lesser of the cost or fair market value of the equipment financed with such Indebtedness, and such Indebtedness may not be increased after incurrence; (k) Indebtedness with respect to any interest rate, currency or commodity swap agreement, interest rate cap agreement, interest rate collar agreement or other agreement or arrangement designed to protect Borrower against fluctuation in interest rates, currency exchange rates or commodity prices maintained with Agent or any Lender (or any of their Affiliates); (l) Indebtedness in respect of netting services, overdraft protections and other customary bank products in connection with deposit accounts; (m) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and similar obligations, in each case provided in the ordinary course of business (n) Indebtedness incurred in connection with the financing of insurance premiums, provided, that the Borrower shall not finance more than one (1) year’s premiums at any time; (o) Indebtedness, direct or indirect, not otherwise permitted hereunder not to exceed Five Million and 00/100 Dollars ($5,000,000) in the aggregate at any one time outstanding; (p) Indebtedness arising in connection with Qualified Receivables Financing Transactions in an aggregate amount at any time outstanding not to exceed Twenty Million and 00/100 Dollars ($20,000,000); (q) guarantees in respect of Indebtedness of a Loan Party or a Subsidiary to the extent such Indebtedness is permitted to exist or be incurred pursuant to this definition; (r) Indebtedness, to the extent arising from real property leases of a Loan Party or a Subsidiary entered into in the ordinary course of business and classified as capital leases under GAAP in an aggregate amount at any time outstanding not to exceed Twenty-Five Million and 00/100 Dollars ($25,000,000); and (s) Extensions, refinancings and renewals of any items of Permitted Indebtedness otherwise permitted by this definition, provided that the principal amount is not increased or the terms modified to impose more burdensome terms upon Borrower or its Subsidiary, or less favorable to Agent and Lenders, as the case may be. “Permitted Investment” means: (a) Investments existing on the Closing Date disclosed in the Schedule; (b) (i) Marketable direct obligations issued or unconditionally guaranteed by the United States of America or any agency or any State thereof maturing within one (1) year from the date of acquisition thereof, (ii) commercial paper maturing no more than one (1) year from the date of creation thereof and currently having rating of at least A-1 or P-1 from either Standard & Poor’s Corporation or Xxxxx’x Investors Service, (iii) any Lender's certificates of deposit
Exhibit A – Page 12 maturing no more than one (1) year from the date of investment therein, (iv) any Lender's money market accounts, (v) other Cash Equivalents and (vi) investments made in accordance with the investment policy of the Borrower as in effect on the Closing Date or as amended from time to time subject to prior written approval from Agent for the purposes of this Agreement; (c) Repurchases of stock from existing, former employees, officers or directors of Borrower under the terms of applicable repurchase agreements (i) in an aggregate amount not to exceed One Million and 00/100 Dollars ($1,000,000) in any fiscal year, provided that no Event of Default has occurred, is continuing or would immediately exist after giving effect to the repurchases, or (ii) in any amount where the consideration for the repurchase is the cancellation of indebtedness owed by such existing former employees, officers or directors to Borrower regardless of whether an Event of Default exists; (d) Investments of (i) Borrower or its Subsidiaries in Borrower or Subsidiaries that are Guarantors, (ii) Subsidiaries that are not Guarantors in Subsidiaries that are not Guarantors, (iii) Borrower or Subsidiaries that are Guarantors in Subsidiaries that are not Guarantors not to exceed Five Million and 00/100 Dollars ($5,000,000) in the aggregate in any fiscal year, or (iv) Borrower in any Subsidiary in connection with the transfer of assets necessary in the operation of up to two cartridge production pods, related reagent production equipment and plastics tooling to be operated outside of the United States; (e) Investments not to exceed Five Hundred Thousand and 00/100 Dollars ($500,000) in the aggregate in any fiscal year consisting of (i) travel advances and employee relocation loans and other employee loans and advances in the ordinary course of business, and (ii) loans to employees, officers or directors relating to the purchase of equity securities of Borrower or its Subsidiaries pursuant to employee stock purchase plan agreements approved by Borrower’s Board of Directors; (f) Investments not to exceed an aggregate principal amount of One Million and 00/100 Dollars ($1,000,000) during the term of this Agreement consisting of loans to employees not in the ordinary course of business; (g) Investments (including debt obligations) received in connection with the bankruptcy or reorganization of customers or suppliers and in settlement of delinquent obligations of, and other disputes with, customers or suppliers arising in the ordinary course of Borrower’s business; (h) Investments consisting of deposit or securities accounts, which are maintained in accordance with the terms of this Agreement; (i) (1) the formation and capitalization of a Subsidiary (“Formed Subsidiary”), or (2) any other consensual acquisition of all equity interests in all or substantially all of the assets of any other Person (each an “Acquired Subsidiary”); provided that Borrower shall be in pro forma compliance with the financial covenants set forth in Section 6.7 hereof immediately prior to and after giving effect to such acquisition, no Event of Default shall have occurred or would result from such acquisition or formation, Borrower receives written consent from Required Lenders for acquisitions exceeding Forty Million and 00/100 Dollars ($40,000,000) in the aggregate from and Exhibit A – Page 13 after the Closing Date and the representations and warranties set forth in the Loan Documents are true and correct in all material respects after giving effect thereto; provided further that, Borrower shall deliver financial information reasonably requested by Agent or the Lenders with respect to any Acquired Subsidiary ten (10) Business Days prior to the consummation of such acquisition; provided that such acquisition shall not be a “hostile” acquisition and shall have been approved by the board of directors (or equivalent) and/or shareholders (or equivalent) of the Borrower and the Acquired Subsidiary and shall be in the same line of business as the Borrower or a line of business that is incidental, ancillary or complementary thereto or a natural extension thereof; provided further that any such Formed Subsidiary or Acquired Subsidiary that is a domestic Subsidiary shall become a Guarantor hereunder concurrently with such transaction if Revolving Loan proceeds are used to fund such transaction, or within forty-five (45) days (as such date may be extended by Agent in its discretion) after the consummation of the acquisition, and Borrower shall otherwise comply with the requirements set forth in Section 6.10 of this Agreement with respect to such Formed Subsidiary or Acquired Subsidiary (the transactions under clause(i)(2) of this definition "Permitted Acquisitions"); (j) Investments of any Person existing at the time such Person becomes an Acquired Subsidiary of the Borrower, so long as such Investments were not made in contemplation of such Person becoming a Subsidiary and provided that such Investments do not exceed One Million and 00/100 Dollars ($1,000,000) in the aggregate; (k) security deposits, prepaid expenses and negotiable instruments held for collection in the ordinary course of business; (l) to the extent constituting Investments, pledges and deposits permitted pursuant to the definition of Permitted Liens; (m) Investments consisting of the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of Borrower; (n) (i) receivables owing to the Loan Parties or any of their Subsidiaries or any receivables, prepayments, deposits and advances to suppliers or vendors, in each case if created acquired or made in the ordinary course of business and payable or dischargeable in accordance with customary trade terms and (ii) intercompany charges of expenses and intercompany payables, in each case if created, acquired or made in the ordinary course of business; (o) Investments in joint ventures and other minority interests in business with a reasonable relationship to the business of the Borrower in an aggregate amount not to exceed Ten Million and 00/100 Dollars ($10,000,000) at any one time outstanding; (p) (i) Guarantees constituting Permitted Indebtedness and (ii) guaranties of leases or other obligations entered into in the ordinary course of business that do not constitute Indebtedness; (q) interest rate, currency or commodity swap agreement, interest rate cap agreement, interest rate collar agreement or other agreement or arrangement entered into with any Lender or any Affiliate of a Lender designed to protect Borrower against fluctuation in interest rates, currency exchange rates or commodity prices; and Exhibit A – Page 14 (r) Investments not otherwise permitted hereunder not to exceed Five Million and 00/100 Dollars ($5,000,000) in the aggregate in any fiscal year. “Permitted Liens” means the following: (a) Any Liens existing on the Closing Date and disclosed in the Schedule (excluding Liens to be satisfied with the proceeds of the Advances) or arising under this Agreement or the other Loan Documents or any other Lien in favor of Agent for the benefit of Lenders; (b) Liens for taxes, fees, assessments or other governmental charges or levies, either not delinquent or being contested in good faith by appropriate proceedings and for which Borrower maintains adequate reserves, provided the same have no priority over any of Agent’s security interests; (c) Carrier’s, warehousemen’s, mechanic’s, materialmen’s, repairmen’s, suppliers’, utilities or other like Liens arising in the ordinary course of business which are not overdue for a period for more than 30 days or which are being contested in good faith and by appropriate proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the books of the applicable Person; (d) Pledges or deposits in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other social security legislation, other than any Lien imposed by ERISA; (e) Deposits to secure the performance of bids, trade contracts and leases (other than Indebtedness), statutory obligations, surety bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business; (f) Liens affecting the interest of the landlords and licensors (any underlying landlords and licensors) of any real property leased, licensed or occupied by a Borrower or any of their Subsidiaries; (g) Liens of a collection bank on items in the course of collection arising under Section 4-208 of the Code or other normal and customary rights of set-off and banker’s liens in favor of banks or other depository institutions arising in the ordinary course of business; (h) the title and interests of a lessor or sublessor in and to personal property leased or subleased, in each case, extending only to such personal property and only to the extent such lease or sublease is permitted hereunder; (i) Liens on premium refunds and insurance proceeds granted in favor of insurance companies (or their financing affiliates) solely in connection with the financing of insurance premiums permitted hereunder; (j) non-exclusive licenses and sublicenses and similar arrangements for the use of intellectual property rights of Borrower or its Subsidiaries in the ordinary course of business (including intercompany licensing of intellectual property between the Borrower and any Exhibit A – Page 15 Subsidiary and between Subsidiaries in connection with cost-sharing arrangements, distribution, marketing, make-sell or other similar arrangements); (k) Precautionary financing statements filed in connection with operating leases permitted by this Agreement; (l) Liens incurred in connection with the extension, renewal or refinancing of the indebtedness secured by Liens of the type described in clauses (a) through (c) above, provided that any extension, renewal or replacement Lien shall be limited to the property encumbered by the existing Lien and the principal amount of the indebtedness being extended, renewed or refinanced does not increase; (m) Liens arising from judgments, decrees or attachments in circumstances not constituting an Event of Default under Sections 8.5 (attachment) or 8.9 (judgments); (n) Liens securing obligations not to exceed Eight Million and 00/100 Dollars ($8,000,000) in the aggregate (i) upon or in any Equipment acquired or held by Borrower or any of its Subsidiaries to secure the purchase price of such Equipment or indebtedness incurred solely for the purpose of financing the acquisition or lease of such Equipment, or (ii) existing on such Equipment at the time of its acquisition, provided that the Lien is confined solely to the property so acquired and improvements thereon, and the proceeds of such Equipment; (o) Security deposits securing real estate leases; (p) Liens securing Subordinated Debt; (q) easements, zoning restrictions, right of way restrictions, minor defects or irregularities in title, and other similar encumbrances affecting real property which, in the aggregate, are not substantial in amount, and which do not in any case materially detract from the value of the property subject thereto or materially interfere with the ordinary conduct of the business of the applicable Person; (r) Liens attaching solely to xxxx xxxxxxx money deposits in connection with an acquisition of an Acquired Subsidiary as permitted hereunder or an acquisition of property otherwise permitted hereunder; and (s) Liens in favor of a Lender on Securitization Assets sold, conveyed, assigned or otherwise transferred or purported to be sold, conveyed, assigned or otherwise transferred in connection with a Qualified Receivables Financing Transaction, and Liens in favor of a Lender on assets securing the Standard Securitization Undertakings of Borrower or a Subsidiary in connection with Qualified Receivables Financing Transactions. “Permitted Transfer” means the conveyance, sale, lease, transfer or disposition by Borrower or any Subsidiary of: (a) Inventory of the Borrower or any Subsidiary in the ordinary course of business;
Exhibit A – Page 16 (b) (i) non-exclusive licenses and sublicenses and similar arrangements for the use of the property of Borrower or its Subsidiaries in the ordinary course of business (including intercompany licensing of intellectual property between the Borrower and any Subsidiary and between Subsidiaries in connection with cost sharing arrangements, distribution, marketing, make-sell or other similar arrangements), and (ii) licenses that could not result in a legal transfer of title of the licensed property, which may be exclusive in respects other than territory and which may be exclusive as to territory only as to discrete geographical areas outside of the United States, in each case, not interfering in any material respect with the business of Borrower or its Subsidiaries; (c) Worn-out, surplus or obsolete equipment or inventory; (d) Dispositions of equipment or real property to the extent that (i) such property is exchanged for credit against the purchase price of replacement property or (ii) the proceeds of such disposition are reasonably promptly applied to the purchase price of such replacement property; (e) (i) Dispositions or transfers of property by Borrower or any Subsidiary of Borrower that is a Guarantor to Borrower or to another Subsidiary that is a Guarantor, or (ii) by any Subsidiary that is not a Loan Party to any other Subsidiary that is not a Loan Party; (f) Dispositions of cash and Cash Equivalents in the ordinary course of business; (g) Sale, assignment, transfer, disposition or discount of accounts receivable arising in the ordinary course of business in connection with the compromise or collection thereof; (h) sales of common equity of the Borrower for cash that do not cause or result in a Change in Control, provided that such equity is not Disqualified Stock; (i) the lapse of registered intellectual property of the Borrower and its Subsidiaries to the extent not economically desirable or otherwise material in the conduct of their business; (j) transfers to the extent constituting Permitted Liens, Permitted Investments or transactions permitted by Section 7.3; (k) the disposition of Securitization Assets in connection with a Qualified Receivables Financing Transaction permitted hereunder; and (l) Other assets of Borrower or its Subsidiaries that do not in the aggregate exceed Two Million and 00/100 Dollars ($2,000,000) after the Closing Date. “Person” means any individual, sole proprietorship, partnership, limited liability company, joint venture, trust, unincorporated organization, association, corporation, institution, public benefit corporation, firm, joint stock company, estate, entity or governmental agency. Exhibit A – Page 17 “Prime Rate” means, for any particular day, the variable rate of interest, per annum, most recently announced by Agent, as its “prime rate,” whether or not such announced rate is the lowest rate available from Agent. “Prohibited Territory” means any person or country listed by OFAC as to which transactions between a United States Person and that territory are prohibited. “Qualified Receivables Financing Transaction” means any Receivables Financing Transaction that meets the following conditions: (a) such Receivables Financing Transaction (including financing terms, covenants, termination events and other provisions) is in the aggregate economically fair and reasonable to the Borrower and its Subsidiaries (as determined in good faith by the Borrower and not objected to by Required Lenders); (b) such Receivables Financing Transaction is non-recourse to, and does not obligate, the Borrower or any Subsidiary, or their respective properties or assets (other than Securitization Assets) in any way (other than in respect of Standard Securitization Undertakings); (c) all sales, conveyances, assignments and/or contributions of Securitization Assets by the Borrower or any Subsidiary are made at fair market value (as determined in good faith by the Borrower); and (d) such Receivables Financing Transaction is entered into exclusively with Lenders hereunder. “Receivables Financing Transaction” means any transaction or series of transactions that may be entered into by the Borrower or any Subsidiary pursuant to which the Borrower or such Subsidiary may sell, convey, assign or otherwise transfer (or purport to be sell, convey, assign or otherwise transfer) Securitization Assets (which may include a grant of security interest to a Lender in such Securitization Assets so sold, conveyed, assigned or otherwise transferred or purported to be so sold, conveyed, assigned or otherwise transferred) to any Lender. “Required Lenders” means, unless all of the Lenders and Agent agree otherwise in writing, each Lender as of the Closing Date (which, for the avoidance of doubt, is East West Bank and Comerica Bank). “Responsible Officer” means each of the Chief Executive Officer, the Chief Operating Officer, the Chief Financial Officer and the Treasurer of Borrower. “Revolving Line” means revolving Credit Extensions of up to One Hundred Million Dollars ($100,000,000.00) in aggregate original principal amount at any time outstanding, which may be reduced from time to time in accordance with the terms of this Agreement. “Revolving Loan” is defined in Section 2.1(b) hereof. “Revolving Loan Commitment” means the commitment of a Lender listed below, or in the Assignment and Assumption in the form attached hereto as Exhibit I pursuant to which it Exhibit A – Page 18 becomes a Lender hereunder, to make Credit Extensions and participate in Letters of Credit hereunder, as the same may be adjusted pursuant to the provisions hereof. For the avoidance of doubt, no Lender shall have any liability for the commitment of any other Lender. Lender Revolving Loan Commitment Revolving Loan Commitment Percentage East West Bank $65,000,000.00 65% Comerica Bank $35,000,000.00 35% TOTAL $100,000,000.00 100% “Revolving Loan Commitment Percentage” means, with respect to each Lender, the percentage equivalent of the ratio which such Lender’s Revolving Loan Commitment bears to the Revolving Line. “Revolving Maturity Date” means two (2) years from the Closing Date, or June 30, 2024. “S&P” means S&P Global Ratings, or any successor to its rating agency business. “Schedule” means the schedule of exceptions attached hereto and approved by Agent, if any. “Securitization Assets” means accounts receivable, royalties, licensing fees or other revenue streams, other rights to payment, including with respect to rights of payment pursuant to the terms of joint ventures (in each case, whether now existing or arising in the future), and any assets related thereto, including all collateral securing any of the foregoing, all contracts and all guarantees or other obligations in respect of any of the foregoing, proceeds of any of the foregoing and other assets which are customarily transferred or in respect of which security interests are customarily granted in connection with non-recourse, asset securitization or receivables financing transactions. “SOS Reports” means the official reports from the Secretaries of State of each Collateral State, Chief Executive Office State and the Borrower State and other applicable federal, state or local government offices identifying all current security interests filed in the Collateral and Liens of record as of the date of such report. “Standard Securitization Undertakings” means representations, warranties, covenants and indemnities entered into by the Borrower or any Subsidiary of the Borrower that are customary in non-recourse securitization financings. “Subordinated Debt” means any debt now or hereafter incurred by any Loan Party that is subordinated in writing to the debt owing by Borrower to Agent and Lenders on terms, including any security therefor, acceptable to Agent and the Required Lenders in their sole discretion. Exhibit A – Page 19 “Subsidiary” means any corporation, partnership or limited liability company or joint venture in which (i) any general partnership interest or (ii) more than fifty percent (50%) of the stock, limited liability company interest or joint venture of which by the terms thereof ordinary voting power to elect the Board of Directors, managers or trustees of the entity, at the time as of which any determination is being made, is owned by Borrower, either directly or through an Affiliate. “Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
Exhibit B – Page 1 EXHIBIT B COLLATERAL DESCRIPTION ATTACHMENT TO LOAN AND SECURITY AGREEMENT BORROWER: CUE HEALTH INC. AGENT: EAST WEST BANK All right, title and interest in the following personal property and assets of the Loan Parties (herein referred to, individually and collectively, as “Debtor”) whether presently existing or hereafter created or acquired, and wherever located, including, but not limited to: (a) all accounts (including health-care-insurance receivables), chattel paper (including tangible and electronic chattel paper), deposit accounts (including, without limitation, the Collection Account), documents (including negotiable documents), equipment (including all accessions and additions thereto), general intangibles (including payment intangibles and software), goods (including fixtures), instruments (including promissory notes), inventory (including all goods held for sale or lease or to be furnished under a contract of service, and including returns and repossessions), investment property (including securities and securities entitlements), letter of credit rights, money, and all of Debtor’s books and records with respect to any of the foregoing, and the computers and equipment containing said books and records; (b) all deposit accounts, including without limitation, all demand, time, savings, passbook, custodial, safekeeping, escrow or like accounts maintained by Debtor with the Agent, any Lender or any bank, savings and loan association, credit union or like organization, and all money, cash, cash equivalents, investment securities, deposits and prepayments of Debtor in any such deposit account (all of the foregoing being deemed to be in any such account as soon as the same is put in transit to such account by mail or other courier); (c) all agreements, contracts, leases, licenses, letters of credit, security agreements, indentures and purchase and sales orders of any kind whatsoever, all rights of Debtor thereunder, including all rights to purchase, lease, sell or otherwise acquire or deal with real or personal property and all warranty rights and contract rights of any nature, whether written or oral, and all consents or other authorizations relating thereto, to the extent assignable; (d) all licenses, permits, franchises, certificates and other governmental authorizations and approvals of any nature whatsoever, to the extent assignable; (e) all common law and statutory copyrights and copyright registrations, applications for registration, now existing or hereafter arising, in the United States of America or in any foreign jurisdiction, obtained or to be obtained on or in connection with any of the foregoing, or any parts thereof or any underlying or component elements of any of the foregoing, together with the right to copyright and all rights to renew or extend such copyrights and the right (but not the obligation) of Agent to xxx in its own name and/or in the name of the Debtor for past, present and future infringements of copyright; Exhibit B – Page 2 (f) all trademarks, service marks, trade names and service names and the goodwill associated therewith, together with the right to trademark and all rights to renew or extend such trademarks and the right (but not the obligation) of Agent to xxx in its own name and/or in the name of the Debtor for past, present and future infringements of trademark; (g) all (i) patents and patent applications filed in the United States Patent and Trademark Office or any similar office of any foreign jurisdiction, and interests under patent license agreements, including, without limitation, the inventions and improvements described and claimed therein, (ii) licenses pertaining to any patent whether Debtor is licensor or licensee, (iii) income, royalties, damages, payments, accounts and accounts receivable now or hereafter due and/or payable under and with respect thereto, including, without limitation, damages and payments for past, present or future infringements thereof, (iv) right (but not the obligation) of Agent to xxx i in its own name and/or in the name of the Debtor for past, present and future infringements thereof, (v) rights corresponding thereto throughout the world in all jurisdictions in which such patents have been issued or applied for, and (vi) reissues, divisions, continuations, renewals, extensions and continuations-in-part with respect to any of the foregoing; (h) all other proprietary rights and confidential information, technology, processes, trade secrets, computer programs, source codes, software, customer lists, sales literature and catalogues, price lists, subscriber information, drawings, specifications, blueprints, telephone numbers, formulae, goodwill and all applications and registrations relating to any of the foregoing; (i) all rights, remedies, powers and/or privileges of Debtor with respect to any of the foregoing, all rights in all litigation presently or hereafter pending for any cause or claim (whether in contract, tort or otherwise) and all judgments now or hereafter arising therefrom; (j) all proceeds, replacements, products, additions, accessions and substitutions of any of the foregoing; (k) all files, correspondence, books and records of Debtor, including without limitation, books of account and ledgers of every kind and nature, all electronically recorded data relating to the Collateral, Debtor or the business thereof, all computer programs, tapes, discs and data processing software containing the same, and all receptacles and containers for such records; and (l) any and all cash proceeds and/or noncash proceeds of any of the foregoing, including, without limitation, insurance proceeds, and all supporting obligations and the security therefor or for any right to payment. All terms above have the meanings given to them in the California Uniform Commercial Code, as amended or supplemented from time to time. Exhibit C – Page 1 EXHIBIT C LOAN ADVANCE/PAYDOWN REQUEST FORM DEADLINE FOR SAME DAY PROCESSING IS 12:00 NOON, PACIFIC TIME. To: _____________________ FAX #: 000-000-0000 DATE: _______________20___ TIME: _________ REQUESTED TRANSACTION TYPE REQUESTED DOLLAR AMOUNT For Bank Use Only PRINCIPAL INCREASE* (ADVANCE) $_____________________ Date Rec’d: PRINCIPAL PAYMENT (ONLY) $_____________________ Time: OTHER INSTRUCTIONS: Comp. Status: YES NO _______________________________________________________________ Status Date: _______________________________________________________________ Time: Approval: _______________________________________________________________ All representations and warranties of Borrower stated in the Loan and Security Agreement are true and correct in all material respects as of the date of the telephone request for and advance confirmed by this Loan Advance/Paydown Request Form; provided, however, that those representations and warranties the date expressly referring to another date shall be true and correct in all material respects as of such date. *IS THERE A WIRE REQUEST TIED TO THIS LOAN ADVANCE? (PLEASE CIRCLE ONE) YES NO If YES, the Outgoing Wire Transfer Instructions must be completed below. OUTGOING WIRE TRANSFER INSTRUCTIONS Fed Reference Number Bank Transfer Number The items marked with an asterisk (*) are required to be completed. *Beneficiary Name *Beneficiary Account Number Exhibit C – Page 2 *Beneficiary Address Currency Type US DOLLARS ONLY *ABA Routing Number (9 Digits) *Receiving Institution Name *Receiving Institution Address *Wire Amount $
Exhibit D – Page 1 EXHIBIT D COMPLIANCE CERTIFICATE Please send all Required Reporting to: East West Bank 0000 Xxxxxxx Xxxxxxx Xxxx., Xxxxx 000 Xxxxx Xxxxx, XX 00000 Fax: 000-000-0000 FROM: Cue Health Inc. (“Borrower”) The undersigned authorized Officer of Cue Health Inc., hereby certifies in his or her corporate capacity and not in his or her personal capacity that in accordance with the terms and conditions of the Loan and Security Agreement between Borrower, Agent and Lenders (as amended, restated, modified or otherwise supplemented from time to time, the “Agreement”), (i) Borrower is in complete compliance for the period ending ___________________ with all required covenants, including without limitation the ongoing registration of intellectual property rights in accordance with Section 6.8, except as noted below, (ii) all representations and warranties of Borrower stated in the Agreement are true and correct in all material respects as of the date hereof; provided, however, that those representations and warranties the date expressly referring to another date shall be true and correct in all material respects as of such date, and (iii) attached hereto is a list of any applications or registrations of intellectual property rights filed with the United States Patent and Trademark Office and not previously reporting to Agent, including the date of such filing and the registration or application numbers, if any, and any filing of any applications or registrations with the United States Copyright Office, including the title of such intellectual property rights to be registered, as such title will appear on such applications or registrations, and the date such applications or registrations will be filed. Attached herewith are the required documents supporting the above certification. The Officer further certifies that these are prepared in accordance with Generally Accepted Accounting Principles (GAAP) (other than, in the case of unaudited financial statements, for the absence of footnotes and year-end audit adjustments) and are consistently applied from one period to the next except as explained in an accompanying letter or footnotes. Please indicate compliance status by circling Yes/No under “Complies” or “Applicable” column. REPORTING COVENANTS REQUIRED COMPLIES [Company Prepared Monthly/Quarterly F/S Monthly, within 30 days/Quarterly within 45 days YES NO]2 Compliance Certificate Monthly, within 30 days YES NO [Company prepared Audited and Unqualified F/S Annually, within 5 days of submission YES NO] 3 A/R & A/P Agings Monthly, within 30 days YES NO 2 To be included for Compliance Certificates delivered with such financial statements. 3 To be included for Compliance Certificates delivered with such financial statements. Exhibit D – Page 2 REPORTING COVENANTS REQUIRED COMPLIES [Annual projections (incl. operating budget) FYE, within 90 days YES NO]4 FINANCIAL COVENANTS REQUIRED ACTUAL COMPLIES TO BE TESTED MONTHLY, UNLESS OTHERWISE NOTED: At all times, minimum asset coverage ratio (see attached worksheet) 1.20x _____________ YES NO [quarterly][monthly] Minimum remaining months liquidity Six (6) months _____________ YES NO As of the end of each fiscal quarter, minimum current ratio 1.20x _____________ YES NO Borrower’s aggregate cash and Cash Equivalents as of the last day of the month $200,000,000 _____________ YES NO Please Enter Below Comments Regarding Violations: The Officer further acknowledges that at any time Borrower is not in compliance with all the terms set forth in the Agreement, including, without limitation, the financial covenants, no credit extensions will be made. Very truly yours, CUE HEALTH INC. By: Name: Title: 4 To be included for Compliance Certificates delivered with such financial statements. Exhibit D – Page 1 ASSET COVERAGE RATIO WORKSHEET Borrower certifies to Agent that the following accounts are true and correct as of: XX/XX/2022 Accounts Receivable 1. Previous Accounts Receivable Ending Balance $ 2. Plus: New sales as posted through: XX/XX/2022 $ 3. Plus: Other additions (debit adjustments, etc) $ 4. Total Additions: (line 2 + line 3): $ 5. Less: Collections as posted through XX/XX/2022 $ 6. Less: Credit memo, discounts, credit adjustments, etc $ 7. Total Deductions: (Line 5 + Line 6) $ 8. Accounts Receivable as of: XX/XX/2022 $ 9. Less: Ineligible Accounts Receivable a) Earlier of 60 days past due date or 90 Days from invoice date $ b) Credit Balances over 60 days past due date or 90 Days from invoice date $ c) Cross-Aging > 25% $ d) Concentration > 25% (except DOD/HHS, Google, and Google's designated distributor) $ e) Accounts with respect to which the account debtor does not have its principal place of business in the United States $ f) U.S. gov't receivables, except 1) when payee has Assignment of Claims, 2) existing contracts as of Closing Date w/ DOD/HHS, and 3) approved by Required Lenders $ g) Accounts with respect to which Borrower is liable to the account debtor for goods sold or services rendered by the account debtor to Borrower, or otherwise subject to set-off or counterclaim or contra accounts, but only to the extent of any amounts owing to the account debtor against amounts owed to Borrower, such set-off or such counterclaim $ h) Accounts with respect to which goods are placed on consignment, guaranteed sale, sale or return, sale on approval, xxxx and hold, demo or promotional, or other terms by reason of which the payment by the account debtor may be conditional $ Exhibit D – Page 2 i) Accounts with respect to which the account debtor is an officer, employee, agent, Subsidiary or Affiliate of Borrower $ j) Accounts with respect to which the account debtor disputes liability or makes any claim with respect thereto that there may be a basis for dispute (but only to the extent of the amount subject to such dispute or claim), or is subject to any Insolvency Proceeding, or becomes insolvent, or goes out of business $ k) Accounts the collection of which Agent reasonably determines after inquiry and consultation with Borrower to be doubtful, including, for the avoidance of doubt, any Accounts with an account debtor who is subject to a bankruptcy or insolvency proceeding $ l) Accounts owing by an account debtor organized under the law of a jurisdiction outside of the United States and Accounts not owed in United States dollars unless supported by adequate credit insurance acceptable to Agent $ m) retentions and hold-backs $ n) Cash or Cash on demand Accounts $ o) Accounts that have not yet been billed to the account debtor or that relate to deposits (such as good faith deposits) or other property of the account debtor held by Borrower for the performance of services or delivery of goods which Borrower has not yet performed or delivered and unconditionally accepted by the account debtor $ p) Accounts arising from direct to consumer contracts until such time as monthly updates to the direct to consumer Accounts are being provided hereunder $ Total Ineligible Accounts Receivable $ 10. Eligible Receivables $ 11. Times Rate of Advance (% of Line 10) 80% $ 12. Less: any sales tax liability outstanding $ 13. Sum of unrestricted cash and Cash Equivalents maintained in deposit accounts or investment accounts with Agent not subject to any Lien other than the Liens in favor Agent plus the sum of unrestricted cash and Cash Equivalents maintained in deposit accounts or investment accounts subject to an account control agreement in favor of the Agent $ 14. Sum of Line 11 less Line 12 plus Line 13 $ 15. Divided by Maximum Asset Coverage Ratio 1.20
Exhibit D – Page 3 16. Obligations Sight Letters of Credit $ Usance Letters of Credit $ Bankers Acceptance $ Clean Advances /Revolving Working Capital $ 17. Total Obligations as of: XX/XX/2022 $ 18. Net Availability (Line 14 minus Line 17) (Obligations not to exceed Facility Commitment) $100,000,000 $ (Note: if Negative -- Repayment Required) Exhibit E EXHIBIT E DISBURSEMENT LETTER CUE HEALTH INC. The undersigned duly elected and acting officer of CUE HEALTH INC. (“Borrower”) does hereby certify to EAST WEST BANK (“Agent”) and the Lenders, in connection with that certain Loan and Security Agreement dated as of June 30, 2022, by and among Borrower, Lenders and Agent (as amended, restated , modified or otherwise supplemented from time to time, the “Loan Agreement”; with other capitalized terms used below having the meanings ascribed thereto in the Loan Agreement) that: 1. The representations and warranties made by Borrower in Section 5 of the Loan Agreement and in the other Loan Documents are true and correct in all material respects as of the date hereof; provided, however that those representations and warranties the date expressly referring to another date shall be true and correct in all material respects as of such date. 2. No event or condition has occurred that would constitute an Event of Default under the Loan Agreement or any other Loan Document. 3. The undersigned is a Responsible Officer. [Balance of Page Intentionally Left Blank] Exhibit E 4. The proceeds of the Advances shall be disbursed as follows: 5. The aggregate proceeds of the Credit Extensions to be made shall be remitted as follows: 1. [________________] [________________] ABA # [________________] Account # [________________] Reference: [________________] $[________________] 2. [________________] [________________] ABA # [________________] Account # [________________] Reference: [________________] $[________________] Balance – credited to Borrower’s account at East West Bank. [Balance of Page Intentionally Left Blank] Exhibit E Dated as of the date first set forth above. BORROWER: CUE HEALTH INC. By: Name: Title: AGENT: EAST WEST BANK By: Name: Xxxxxx Xxxxxxxxx Title: Senior Vice President
Exhibit F – Page 1 EXHIBIT F POST-CLOSING OBLIGATIONS SCHEDULE 1. Within thirty (30) days of Closing Date, a Field Exam must be completed. 2. The Loan Parties shall use commercially reasonable efforts to provide, within thirty (30) days of the Closing Date, landlord waiver for those locations requested by Agent prior to the Closing Date. 3. Within thirty (30) days of the Closing Date, to the extent not provided on or prior to the Closing Date, the Loan Parties shall either (i) provide control agreements for all deposit accounts and investment accounts held by the Loan Parties at banks other than Agent in form and substance reasonably acceptable to Agent or (ii) close all deposit accounts and investment accounts held by the Loan Parties with banks other than Agent that are not otherwise subject to a control agreement in form and substance reasonably acceptable to Agent. Exhibit G – Page 1 EXHIBIT G CORPORATE BORROWING CERTIFICATE BORROWER: CUE HEALTH INC. DATE: [___________], 20[__] AGENT: EAST WEST BANK I hereby certify in my corporate capacity and not in my personal capacity as follows, as of the date set forth above: 1. I am the Secretary, Assistant Secretary or other officer of the Borrower. My title is as set forth below. 2. Borrower’s exact legal name is set forth above. Borrower is a corporation existing under the laws of the State of Delaware. 3. Attached hereto as Exhibit A is a true, correct and complete copy of Borrower’s Amended and Restated Certificate of Incorporation (including amendments), as filed with the Secretary of State of the state in which Borrower is incorporated as set forth in paragraph 2 above. Such Certificate of Incorporation has not been amended, annulled, rescinded, revoked or supplemented, and remains in full force and effect as of the date hereof. 4. Attached hereto as Exhibit B is a true, correct and complete copy of Borrower’s Amended and Restated Bylaws (including amendments). Such Bylaws have not been amended, annulled, rescinded, revoked or supplemented, and remain in full force and effect as of the date hereof. 5. Attached hereto as Exhibit C is a true, correct and complete copy of the written consent of the Board of Directors of Borrower duly and validly adopted by Borrower’s Board of Directors on [_________________], 2022 (the “Written Consent”) authorizing the entry into, execution, delivery and performance of the transactions contemplated by the Loan and Security Agreement dated as of June 30, 2022 between Borrower and Agent (the “Credit Agreement”). Such written consent is in full force and effect as of the date hereof and has not been in any way modified, repealed, rescinded, amended or revoked, and Agent may rely on it until Agent receives written notice of revocation from Borrower. 6. The true signatures of the persons and their titles who have been authorized to sign or execute the Credit Agreement and any related documents and instruments to which Borrower is a party on behalf of Borrower are set forth in the Written Consent attached hereto as Exhibit C. The persons listed in the Written Consent are Borrower’s officers or employees with their titles and signatures shown next to their names. Exhibit G – Page 2 CUE HEALTH INC. By: Name: Title: Exhibit H – Page 1 EXHIBIT H EAST WEST BANK AUTOMATIC DEBIT AUTHORIZATION Member FDIC To: East West Bank Re: Loan # You are hereby authorized and instructed to charge account No. in the name of CUE HEALTH INC. for principal, interest and other payments due on above referenced loan as set forth below and credit the loan referenced above. Debit each interest payment as it becomes due according to the terms of the Loan and Security Agreement and any renewals or amendments thereof. Debit each principal payment as it becomes due according to the terms of the Loan and Security Agreement and any renewals or amendments thereof. Debit each payment for Lender Expenses as it becomes due according to the terms of the Loan and Security Agreement and any renewals or amendments thereof. This Authorization is to remain in full force and effect until revoked in writing. Borrower Signature Date CUE HEALTH INC. as Borrower By: Name: Title: [ ], 2022
