MASTER ASSIGNMENT AND ACCEPTANCE
Exhibit E
This Master Assignment and Acceptance (the “Assignment and Acceptance”) is dated as of the Effective Date set forth below and is entered into by and among each Person listed as an “Assignor” on Schedule II hereto (each an “Assignor”) and each Person listed as an “Assignee” on Schedule II hereto (each an “Assignee”). It is understood and agreed that the rights and obligations of the Assignors and of the Assignees hereunder are several and not joint. Capitalized terms used but not defined herein shall have the meanings given to them in the Credit Agreement identified below (as amended, the “Credit Agreement”), receipt of a copy of which is hereby acknowledged by each Assignee. The Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Acceptance as if set forth herein in full.
SECTION 1. Assignments. For consideration as set forth herein, the Assignors (each of whom holds a New Money Loan Commitment immediately prior to the Effective Date in the principal amount set forth opposite such Assignor’s name on Schedule I hereto) hereby irrevocably sell and assign to the Assignees, and the Assignees hereby irrevocably purchase and assume from the Assignors (with such sales and assignments to, and purchases and assumptions by, the Assignees to be allocated among the Assignees such that, immediately upon the Effective Date, the Assignors and Assignees shall each have a New Money Loan Commitment in such amount, as set forth opposite such Assignor’s or Assignee’s name on Schedule II hereto), subject to and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by the DIP Administrative Agent as contemplated below, (i) all of the Assignors’ rights and obligations in their respective capacities as DIP Lenders under the Credit Agreement and any other documents or instruments delivered pursuant thereto to the extent related to the New Money Loan Commitments being sold and assigned to, and purchased and assumed by, the Assignees pursuant hereto, and (ii) to the extent permitted to be assigned under applicable law, all claims, suits, causes of action and any other right of the Assignors (in their respective capacities as DIP Lenders) against any Person, whether known or unknown, arising under or in connection with the Credit Agreement, any other documents or instruments delivered pursuant thereto or the loan transactions governed thereby or in any way based on or related to any of the foregoing, including, but not limited to, contract claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity related to the rights and obligations sold and assigned pursuant to clause (i) above (the rights and obligations sold and assigned by the Assignors to the Assignees pursuant to clauses (i) and (ii) above being referred to herein collectively as the “Assigned Interests”). Without limiting the foregoing, the Assigned Interest being acquired by each Assignee hereunder shall include the right of such Assignee to receive its Roll-Up Percentage of any Roll-Up Loans deemed made after the Effective Date. Each such sale and assignment is without recourse to any Assignor and, except as expressly provided in this Assignment and Acceptance, without representation or warranty by any Assignor. Immediately after giving effect to the sales and assignments to, and purchases and assumptions by, the Assignees of the Assigned Interests, each Assignor and each Assignee shall have a New Money Loan Commitment in the amount and in the percentage set forth opposite such Assignor’s or Assignee’s name on Schedule II hereto.
SECTION 2. Payments. Pursuant to Section 12.15(b) of the Credit agreement, a $5,000 processing and recordation fee shall be payable by each Assignee to the DIP Administrative Agent in respect of the New Money Loan Commitments being assigned to such Assignee hereunder. Payment of such processing and recordation fees shall be made to the following bank account of the DIP Administrative Agent:
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Name of Bank
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Wilmington Trust, N.A.
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ABA #:
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000000000
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Acct. #:
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128221-001
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Acct. Name::
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Orexigen DIP Fee Account
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SECTION 3. Effective Date. The effective date for this Assignment and Acceptance shall be the date set forth below; provided that the following conditions precedent have been satisfied on or before the Effective Date:
a) This Assignment and Acceptance shall have been executed and delivered by each Assignor, each Assignee, the Borrower and the DIP Administrative Agent;
b) Each Assignee shall have provided to the DIP Administrative Agent (i) any tax forms required to be delivered by it pursuant to the terms of the Credit Agreement, duly completed and executed by such Assignee and (ii) a duly completed Administrative Questionnaire; and
c) Each Assignee shall have paid to the DIP Administrative Agent, for its own account, the processing and recordation fee referred to in Section 2.
SECTION 4. Defined Terms.
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1.
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Assignors:
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Each Person listed as an “Assignor” on Schedule II hereto
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2.
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Assignees:
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Each Person listed as an “Assignee” on Schedule II hereto
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3.
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Borrower:
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Orexigen Therapeutics, Inc., a Delaware corporation
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4.
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DIP Administrative Agent:
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Wilmington Trust, National Association, as agent under the Credit Agreement
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5.
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Credit Agreement:
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Debtor in Possession Credit and Security Agreement, dated as of March 12, 2018 (as amended, amended and restated, supplemented, waived or otherwise modified from time to time), among the Borrower, the DIP Lenders from time to time party thereto and the DIP Administrative Agent.
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Effective Date: April ___, 2018
- 2 -
The terms set forth in this Assignment and Acceptance are hereby agreed to:
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ASSIGNORS
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ASSIGNOR:
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BAUPOST GROUP SECURITIES L.L.C
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By:
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/s/ Xxxxxxx Xxxxxxxx | ||
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Name: Xxxxxxx Xxxxxxxx
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Title: Partner
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Date: April 9, 0000
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x/x Xxxxx Xxxxxx Xxxx and Trust 000 Xxxxxxx Xxxxxx
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| 0xx Xxxxx Xxxxx Xxxxxx, XX 00000 | |||
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Attn: Xxxx Xxxxxxxxx
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Signature Page to Master Assignment & Acceptance
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ASSIGNOR:
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ECOR1 CAPITAL FUND, L.P.
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By:
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/s/ Xxxx Xxxxxxxx | ||
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Name: Xxxx Xxxxxxxx
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Title: Managing Director, EcoR1 Capital LLC, as GP
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Date: April 9, 2018
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000 Xxxxxxxx Xxxxxx
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Xxx Xxxxxxxxx, XX 00000
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ECOR1 CAPITAL FUND QUALIFIED, L.P.
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By:
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/s/ Xxxx Xxxxxxxx | ||
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Name: Xxxx Xxxxxxxx
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Title: Managing Director, EcoR1 Capital LLC, as GP
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Date: April 9, 2018
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000 Xxxxxxxx Xxxxxx
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Xxx Xxxxxxxxx, XX 00000
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Signature Page to Master Assignment & Acceptance
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ASSIGNOR:
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1992 MSF INTERNATIONAL LTD
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By: Highbridge Capital Management, LLC, as trading manager
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By:
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/s/ Xxxxx Xxxxxx | ||
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Name: Xxxxx Xxxxxx
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Title: Managing Director
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Date: April 9, 2018
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00 Xxxx 00xx Xxxxxx, Xxxxx 00
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Xxx Xxxx, XX 00000
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1992 TACTICAL CREDIT MASTER FUND, L.P.
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By: Highbridge Capital Management, LLC, as trading manager
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By:
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/s/ Xxxxx Xxxxxx | ||
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Name: Xxxxx Xxxxxx
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Title: Managing Director
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Date: April 9, 2018
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00 Xxxx 00xx Xxxxxx, Xxxxx 00
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Xxx Xxxx, XX 00000
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Signature Page to Master Assignment & Acceptance
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ASSIGNOR:
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NINETEEN77 GLOBAL MULTI-STRATEGY ALPHA MASTER LIMITED
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||
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By: UBS X’Xxxxxx LLC, its investment advisor
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By:
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/s/ Xxxxxx Xxxxxxx | ||
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Name: Xxxxxx Xxxxxxx
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Title: Assistant General Counsel
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By:
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/s/ Xxxxxx Xxxxxx | ||
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Name: Managing Director
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Date: April 9, 2018
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c/o UBS X'Xxxxxx LLC
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0 Xxxxx Xxxxxx Xxxxx, 00 Xxxxx Xxxxxxx, XX 00000
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Signature Page to Master Assignment & Acceptance
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ASSIGNEES
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ASSIGNEE:
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BIOTECHNOLOGY VALUE TRADING FUND OS, LP
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By:
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/s/ Xxxx Xxxxxxx | ||
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Name: Xxxx Xxxxxxx
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Title: President BVF Inc., General Partner BVF Partners LP,
Sole Shareholder BVF Partners OS Ltd., General Partner
Biotechnology Value Trading Fund OS LP
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Date: April 9, 2018
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The Depository Trust Company
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Attn: BNY Mellon/Branch Deposit Dept.
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000 Xxxxxxxxxx Xxxx, 0xx Xxxxx
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Xxxxxx Xxxx, XX 00000
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BIOTECHNOLOGY VALUE FUND, LP
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By:
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/s/ Xxxx Xxxxxxx | ||
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Name: Xxxx Xxxxxxx
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Title: President BVF Inc., General Partner BVF Partners LP,
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General Partner Biotechnology Value Fund, LP
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Date: April 9, 2018
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The Depository Trust Company
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Attn: BNY Mellon/Branch Deposit Dept.
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000 Xxxxxxxxxx Xxxx, 0xx Xxxxx
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Xxxxxx Xxxx, XX 00000
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BIOTECHNOLOGY VALUE FUND II, LP
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By:
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/s/ Xxxx Xxxxxxx | ||
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Name: Xxxx Xxxxxxx
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Title: President BVF Inc., General Partner BVF Partners LP,
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General Partner Biotechnology Value Fund II, LP
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Date: April 9, 2018
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The Depository Trust Company
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Attn: BNY Mellon/Branch Deposit Dept.
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000 Xxxxxxxxxx Xxxx, 0xx Xxxxx
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Xxxxxx Xxxx, XX 00000
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Signature Page to Master Assignment & Acceptance
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INVESTMENT 10, LLC
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By:
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/s/ Xxxx Xxxxxxx | ||
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Name: Xxxx Xxxxxxx
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Title: President BVF Inc., General Partner BVF Partners LP,
Attorney-In-Fact Investment 10, LLC
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Date: April 9, 2018
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The Depository Trust Company
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Attn: BNY Mellon/Branch Deposit Dept.
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000 Xxxxxxxxxx Xxxx, 0xx Xxxxx
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Xxxxxx Xxxx, XX 00000
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MSI BVF SPV LLC
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By:
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/s/ Xxxx Xxxxxxx | ||
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Name: Xxxx Xxxxxxx
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Title: President BVF Inc., General Partner BVF Partners LP,
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Attorney-In-Fact MSI BVF SPV LLC
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Date: Xxxxx 0, 0000
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XXX Paribas Prime Brokerage
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000 Xxxxxxx Xxxxxx, 0xx Xxxxx
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Xxx Xxxx, XX 00000
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Telephone: (000) 000-0000
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Attention: Xxxx Xxxxxxx
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ROADRUNNER CO.
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By:
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/s/ Xxxx Xxxxxxx | ||
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Title: President BVF Inc., General Partner BVF Partners LP,
Attorney-In- Fact Roadrunner Co.
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Date: April 9, 2018
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The Depository Trust Company
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Attn: 5th FL/NY Window/For the Account of State Street PF 89
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000 Xxxxxxxxxx Xxxx, 0xx Xxxxx
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| Xxxxxx Xxxx, XX 00000 | |||
Signature Page to Master Assignment & Acceptance
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ASSIGNEE:
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TELEMETRY SECURITIES, LLC
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By:
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/s/ Xxx Xxxxxxx | ||
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Name: Xxx Xxxxxxx
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Title: Portfolio Manager
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Date: April 9, 2018
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Telemetry Securities LLC
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Attn: Xxx Xxxxxxx
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000 Xxxxx Xxx, Xxxxx 0000
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Xxx Xxxx, XX 00000
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Signature Page to Master Assignment & Acceptance
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ASSIGNEE:
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ROCK SPRINGS CAPITAL MASTER FUND LP
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By: Rock Springs General Partner LLC, its General Partner
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By:
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/s/ Xxxx Xxxxxx | ||
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Name: Xxxx Xxxxxx
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Title: Managing Member
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Date: April 9, 2018
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Rock Springs Capital Master Fund LP
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Attn: Xxxxxx XxXxxxx
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000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 0000
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Xxxxxxxxx, XX 00000
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Signature Page to Master Assignment & Acceptance
Consented to, Acknowledged and Agreed:
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BORROWER
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OREXIGEN THERAPEUTICS, INC.
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By:
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/s/ Xxxxxx X. Xxxxx | |
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Name: Xxxxxx X. Xxxxx
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Title: EVP, Chief Administrative Officer, General Counsel & Secretary
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By:
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Name:
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Title:
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Signature Page to Master Assignment & Acceptance
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WILMINGTON TRUST, NATIONAL ASSOCIATION,
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as DIP Administrative Agent
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By:
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/s/ Xxxxxx X. Xxxxx | |
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Name: Xxxxxx X. Xxxxx
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Title: Vice President
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Signature Page to Master Assignment & Acceptance
ANNEX 1
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ACCEPTANCE
1. Representations and Warranties.
1.1 Assignors. Each Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of its portion of the Assigned Interests being sold and assigned to the Assignees pursuant to this Assignment and Acceptance, (ii) its portion of the Assigned Interests being sold and assigned to the Assignees pursuant to this Assignment and Acceptance is free and clear of any lien, encumbrance or other adverse claim and (iii) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Acceptance and to consummate the transactions contemplated hereby and (b) assumes no responsibility with respect to (i) any statements, warranties or representations made in or in connection with the Credit Agreement or any other DIP Loan Document, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency or value of the DIP Loan Document s or any collateral thereunder, (iii) the financial condition of the Borrower, any of its Subsidiaries or Affiliates or any other Person obligated in respect of any DIP Loan Document or (iv) the performance or observance by the Borrower, any of its Subsidiaries or Affiliates or any other Person of any of their respective obligations under any DIP Loan Document.
1.2 Assignees. Each Assignee (a) represents and warrants that (i) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Acceptance and to consummate the transactions contemplated hereby and to become a DIP Lender under the Credit Agreement, (ii) it meets all requirements of an Eligible Lender and Eligible Subscriber (or its designated affiliate (including funds under common management)) under the Credit Agreement (subject to receipt of such consents as may be required under the Credit Agreement), (iii) from and after the Effective Date, it shall be bound by the provisions of the Credit Agreement as a DIP Lender thereunder and, to the extent of the Assigned Interest, shall have the obligations of a DIP Lender thereunder, (iv) it has received a copy of the Credit Agreement, together with copies of the most recent financial statements delivered pursuant to the Credit Agreement, as applicable, and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Assignment and Acceptance and to purchase the Assigned Interest on the basis of which it has made such analysis and decision independently and without reliance on the DIP Administrative Agent or any DIP Lender, and (v) if it is a Foreign Lender, attached hereto is any documentation required to be delivered by it pursuant to the terms of the Credit Agreement, duly completed and executed by the Assignee; and (b) agrees that (i) it will, independently and without reliance on the DIP Administrative Agent, the Assignor or any other DIP Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the DIP Loan Documents, and (ii) it will perform in accordance with their terms all of the obligations which by the terms of the DIP Loan Documents are required to be performed by it as a DIP Lender.
2. Payments. From and after the Effective Date, the Administrative Agent shall make all payments in respect of the Assigned Interests (including payments of principal, interest, fees and other amounts) to the applicable Assignor for amounts which have accrued to but excluding the Effective Date and to the applicable Assignee for amounts which have accrued from and after the Effective Date.
- 1 -
ANNEX 1
3. General Provisions. This Assignment and Acceptance shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors and assigns. This Assignment and Acceptance may be executed in any number of counterparts, which together shall constitute one instrument. Delivery of an executed counterpart of a signature page of this Assignment and Acceptance by email or telecopy shall be effective as delivery of a manually executed counterpart of this Assignment and Acceptance. This Assignment and Acceptance shall be governed by, and construed in accordance with, the law of the State of New York.
- 2 -
Schedule I
Assignors’ New Money Loan Commitments
(As of immediately prior to the Effective Date)
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Assignor
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New Money
Loan
Commitment
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Percentage of
Total New
Money Loan
Commitments
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|||||||
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Baupost Group Securities, L.L.C.
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$
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21,169,355
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60.5
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%
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|||||
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EcoR1 Capital Fund, L.P.
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$
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915,927
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2.6
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%
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|||||
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EcoR1 Capital Fund Qualified, L.P.
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$
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4,164,718
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11.9
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%
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|||||
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1992 MSF International Ltd
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$
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1,340,726
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3.8
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%
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|||||
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1992 Tactical Credit Master Fund, L.P.
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$
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352,823
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1.0 | % | |||||
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Nineteen77 Global Multi-Strategy Alpha Master Limited
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$
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7,056,451
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20.2
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%
|
|||||
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TOTAL:
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$
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35,000,000
|
100
|
%
|
|||||
Schedule I to Master Assignment and Assumption
Schedule II
Assignors’ and Assignees’ New Money Loan Commitments
(As of immediately following the occurrence of the Effective Date)
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Assignor
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New Money
Loan
Commitment
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Percentage of
New Money
Loan
Commitments
|
|||||||
|
Baupost Group Securities, L.L.C.
|
$
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16,483,517
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47.1
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%
|
|||||
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EcoR1 Capital Fund, L.P.
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$
|
713,187
|
2.0
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%
|
|||||
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EcoR1 Capital Fund Qualified, L.P.
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$
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3,242,857
|
9.3
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%
|
|||||
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1992 MSF International Ltd
|
$
|
1,043,956
|
3.0
|
%
|
|||||
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1992 Tactical Credit Master Fund, L.P.
|
$
|
274,725
|
.8
|
%
|
|||||
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Nineteen77 Global Multi-Strategy Alpha Master Limited
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$
|
5,494,505
|
15.7
|
%
|
|||||
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Assignee
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New Money
Loan
Commitment
|
Percentage of
New Money
Loan
Commitments
|
|||||||
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Biotechnology Value Trading Fund OS, LP
|
$
|
491,429
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1.4
|
%
|
|||||
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Biotechnology Value Fund II, LP
|
$
|
1,590,330
|
4.5
|
%
|
|||||
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Biotechnology Value Fund, LP
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$
|
2,469,670
|
7.1
|
%
|
|||||
|
MSI BVF SPV, LLC
|
$
|
763,956
|
2.2
|
%
|
|||||
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Investment 10, LLC
|
$
|
398,901
|
1.1
|
%
|
|||||
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Roadrunner Co.
|
$
|
879,121
|
2.5
|
%
|
|||||
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Telemetry Securities LLC
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$
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659,341
|
1.9
|
%
|
|||||
|
Rock Springs Capital Master Fund LP
|
$
|
494,505
|
1.4
|
%
|
|||||
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TOTAL:
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$
|
35,000,000.00
|
100
|
%
|
|||||
Schedule II to Master Assignment and Assumption
