REVENUE INTEREST FINANCING AGREEMENT
Exhibit 10.2
Execution Version
REVENUE INTEREST FINANCING AGREEMENT
Dated as of March 17, 2022 between
IMPEL NEUROPHARMA, INC.,
THE PURCHASERS FROM TIME TO TIME PARTY HERETO,
and
OAKTREE FUND ADMINISTRATION, LLC,
as the Administrative Agent
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Table of Contents
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Article I DEFINITIONS 1
Section 1.01 Definitions 1
Article II PURCHASE OF ASSIGNED INTERESTS 31
Section 2.01 Purchase 31
Section 2.02 Payments by the Company 31
Section 2.03 Effective Date; Effective Date Deliveries; Payment of Purchase Price;
Payments by the Company 32
Section 2.04 No Assumed Obligations 34
Article III REPRESENTATIONS AND WARRANTIES OF THE COMPANY 34
Section 3.01 Organization 34
Section 3.02 Authorization 35
Section 3.03 Governmental Authorization 35
Section 3.04 Ownership 35
Section 3.05 Financial Statements; Material Adverse Change 36
Section 3.06 No Undisclosed Liabilities 36
Section 3.07 Solvency 36
Section 3.08 Litigation 36
Section 3.09 Compliance with Laws 36
Section 3.10 Conflicts 37
Section 3.11 Subordination 38
Section 3.12 Intellectual Property 38
Section 3.13 Regulatory Approval 40
Section 3.14 Material Contracts 41
Section 3.15 Broker’s Fees 42
Section 3.16 Pension Matters 42
Section 3.17 Indebtedness and Liens 42
Section 3.18 Compliance of the Product 42
Section 3.19 Data Privacy 45
Section 3.20 Taxes 45
Section 3.21 Full Disclosure 45
Section 3.22 OFAC; Anti-Terrorism Laws 45
Section 3.23 Anti-Corruption 46
Article IV REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS 46
Section 4.01 Organization 46
Section 4.02 Authorization 46
Section 4.03 Broker’s Fees 46
Section 4.04 Conflicts 47
Article V COVENANTS 47
Section 5.01 Access; Information 47
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Section 5.02 Material Contracts 49
Section 5.03 Public Announcement 49
Section 5.04 Efforts; Further Assurance 50
Section 5.05 Put Option; Call Option 50
Section 5.06 Intellectual Property 52
Section 5.07 Protective Covenants 53
Section 5.08 Notice 54
Section 5.09 Use of Proceeds 55
Section 5.10 Taxes 55
Section 5.11 Compliance with Laws and Other Obligations 57
Section 5.12 Maintenance of Properties, Etc. 57
Section 5.13 Licenses 57
Section 5.14 Maintenance of Regulatory Approvals, Contracts, Etc 57
Section 5.15 ERISA Compliance 58
Section 5.16 Commercialization of the Product 58
Section 5.17 Payment of Obligations 59
Article VI TERMINATION 59
Section 6.01 Termination Date 59
Section 6.02 Effect of Termination 59
Article VII MISCELLANEOUS 60
Section 7.01 Survival 60
Section 7.02 Limitations on Damages 60
Section 7.03 Notices 60
Section 7.04 Successors and Assigns 61
Section 7.05 Indemnification 61
Section 7.06 No Implied Representations and Warranties 63
Section 7.07 Independent Nature of Relationship 64
Section 7.08 Tax Treatment 64
Section 7.09 Entire Agreement 65
Section 7.10 Amendments; No Waivers 65
Section 7.11 Interpretation 65
Section 7.12 Headings and Captions 65
Section 7.13 Counterparts; Effectiveness 66
Section 7.14 Severability 66
Section 7.15 Expenses 66
Section 7.16 Governing Law; Jurisdiction 66
Section 7.17 Waiver of Jury Trial 66
Section 7.18 Release of Liens upon Certain Permitted Financings; Non-Disturbance; Intercreditor. 67
Section 7.19 Confidentiality 67
Article VIII THE ADMINISTRATIVE AGENT 68
Section 8.01 Appointments and Duties 68
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Section 8.02 Binding Effect 69
Section 8.03 Use of Discretion 69
Section 8.04 Delegation of Rights and Duties 70
Section 8.05 Liability 70
Section 8.06 Administrative Agent Individually 71
Section 8.07 Purchaser Credit Decision 72
Section 8.08 Expenses; Indemnities 72
Section 8.09 Resignation of the Administrative Agent 72
Section 8.10 Release of Collateral 73
Section 8.11 Additional Secured Parties 74
Section 8.12 Agent May File Proofs of Claim 74
Section 8.13 [Reserved] 74
Section 8.14 Acknowledgements of Purchasers 75
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SCHEDULES AND EXHIBITS
Schedule 1 |
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Schedule 3.04(a) |
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Schedule 3.04(b) |
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Schedule 3.08 |
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Schedule 3.12(a) |
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Schedule 3.12(b) |
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Schedule 3.13(c) |
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Schedule 3.14 |
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Schedule 3.16 |
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Schedule 3.17(a) |
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Schedule 3.17(b) |
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Schedule 3.18(b) |
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Schedule 3.18(f) |
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Exhibit A |
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Form of Security Agreement |
Exhibit B |
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Form of Funding Notice |
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REVENUE INTEREST FINANCING AGREEMENT
This REVENUE INTEREST FINANCING AGREEMENT (as amended, supplemented or otherwise modified from time to time, this “Agreement”) is made and entered into as of March 17, 2022, by and between Impel NeuroPharma, Inc., a Delaware corporation (the “Company”), and the entities listed in Schedule 1 hereto (the “Purchasers”), and Oaktree Fund Administration, LLC, as administrative agent for the Purchasers (in such capacity, the “Administrative Agent” and, together with the Company and the Purchasers, the “Parties”, and each a “Party”).
WHEREAS, the Company wishes to obtain financing in respect of the Commercialization (as hereinafter defined) of the Product (as hereinafter defined);
WHEREAS, the Company wishes to sell, assign, convey and transfer to the Purchasers the Assigned Interests (as hereinafter defined) in consideration for its payment of the Purchase Price (as hereinafter defined) to raise such financing;
WHEREAS, the Purchasers wishes to purchase from the Company the Assigned Interests, all upon and subject to the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants, agreements representations and warranties set forth herein, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Definitions.
The following terms, as used herein, shall have the following meanings:
“Acquisition” means any transaction, or any series of related transactions, by which any Person (for purposes of this definition, an “acquirer”) directly or indirectly, by means of amalgamation, merger, purchase of assets, purchase of Equity Interests, or otherwise, (i) acquires all or substantially all of the assets of any other Person, (ii) acquires an entire business line or unit or division of any other Person, (iii) with respect to any other Person that is managed or governed by a Board, acquires control of Equity Interests of such other Person representing more than fifty percent (50%) of the ordinary voting power (determined on a fully-diluted basis) for the election of directors of such Person’s Board, or (iv) acquires control of more than fifty percent (50%) of the Equity Interests in any other Person (determined on a fully-diluted basis) that is not managed by a Board.
“Administrative Agent” has the meaning set forth in the preamble hereto.
“Affiliate” shall mean any Person that controls, is controlled by, or is under common control with another Person. For purposes of this definition, “control” shall mean in respect of a particular Person, the possession by one or more other Persons, directly or indirectly, of the power to direct or cause the direction of the management or policies of such particular Person, whether
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through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have meanings correlative thereto.
“Agreement” shall have the meaning set forth in the preamble.
“Anti-Terrorism Laws” shall mean any laws relating to terrorism or money laundering, including, without limitation, (i) the Money Laundering Control Act of 1986 (e.g., 18 U.S.C.
§§ 1956 and 1957), (ii) the Bank Secrecy Act of 1970 (e.g., 31 U.S.C. §§ 5311 – 5330), as amended by the Patriot Act, (iii) the laws, regulations and Executive Orders administered by the United States Department of the Treasury’s Office of Foreign Assets Control (“OFAC”), (iv) the Comprehensive Iran Sanctions, Accountability, and Divestment Act of 2010 and implementing regulations by the United States Department of the Treasury, (v) any law prohibiting or directed against terrorist activities or the financing of terrorist activities (e.g., 18 U.S.C. §§ 2339A and 2339B), or (vi) any similar laws enacted in the United States, European Union or any other jurisdictions in which the parties to this agreement operate, and all other present and future legal requirements of any Governmental Authority governing, addressing, relating to, or attempting to eliminate, terrorist acts and acts of war.
“Applicable Percentage” shall mean cumulatively (i) 7.75% for annual Included Product Revenues under or equal to $150,000,000, provided that on and after February 15, 2027, if MOIC is less than 1.00x, the Applicable Percentage for such annual Included Product Revenues for the Fiscal Quarter beginning January 1, 2027 and thereafter shall be 10.75%, (ii) 4.75% for annual Included Product Revenues between $150,000,000 and $300,000,000, and (iii) 0.75% for annual Included Product Revenues exceeding $300,000,000.
“Assigned Interests” shall mean the Purchasers’ right to receive (i) amounts equal to the product of the Applicable Percentage multiplied by the applicable Included Product Revenues and
“Automatic Put Option Trigger” has the meaning set forth in Section 5.05(a)(i). “Automatic Put Payment” has the meaning set forth in Section 5.05(a)(ii). “Bankruptcy Code” means Title 11 of the United States Code entitled “Bankruptcy.” “Bankruptcy Event” shall mean the occurrence of any of the following:
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(45) days from the entry thereof; or
“Benefit Plan” shall mean any employee benefit plan as defined in Section 3(3) of ERISA (whether governed by the Laws of the United States or otherwise) to which the Company or any Subsidiary thereof incurs or otherwise has any obligation or liability, contingent or otherwise.
“Board” shall mean the board of directors (or similar governing body) of the Company. “Business Day” shall mean any day that is not a Saturday, Sunday or other day on which
commercial banks are authorized or required by law to remain closed in New York City. “Call Option” shall have the meaning set forth in Section 5.05(b).
“Call Option Closing Date” shall have the meaning set forth in Section 5.05(b). “Cap Amount” shall have the meaning set forth in Section 7.05(e).
“Capital Lease Obligations” shall mean as to any Person, the obligations of such Person to pay rent or other amounts under a lease of (or other agreement conveying the right to use) real and/or personal property, the amount of the liability in respect thereof that would at that time be required to be capitalized on a balance sheet in accordance with GAAP, subject to Section 7.11.
“Change of Control” shall mean an event or series of events (i) as a result of which any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities Act, but excluding any of such person or its Subsidiaries, and any Person acting in its capacity as trustee, agent or other fiduciary or administrator of any such Plan) becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, as amended, except that a person or group shall be deemed to have “beneficial ownership” of all Equity Interests that such person or group has the right to acquire, whether such right is exercisable immediately or only after the passage of time (such right, an “option right”)), directly or indirectly, of thirty-five percent (35%) or more of the Equity Interests of the Company entitled to vote for members of the Board on a fully-diluted basis (and taking into account all such Equity Interests that such person or group has the right to acquire pursuant to any option right); (ii) as a result of which, during any period of twelve (12) consecutive months, a majority of the members of the Board cease to be composed of individuals (x) who were members of such Board on the first day of such period, (y)
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who were elected, appointed or nominated to such Board, or whose election, appointment or nomination to such Board was approved by individuals referred to in clause (x) above constituting at the time of such election, appointment or nomination at least a majority of such Board or equivalent governing body or (z) who were elected, appointed or nominated to such Board, or whose election, appointment or nomination to such Board was approved by individuals referred to in clauses (x) and (y) above constituting at the time of such election, appointment or nomination at least a majority of such Board; or (iii) that results in the sale of all or substantially all of the assets or businesses of the Company and its Subsidiaries, taken as a whole.
“Claim” means (and includes) any claim, demand, complaint, grievance, action, application, suit, cause of action, order, charge, indictment, prosecution, judgement or other similar process duly asserted and of which the required notice has been given in accordance with Law, whether in respect of assessments or reassessments, debts, liabilities, expenses, costs, damages or losses, contingent or otherwise, whether liquidated or unliquidated, matured or unmatured, disputed or undisputed, contractual, legal or equitable, including loss of value, professional fees, including fees and disbursements of legal counsel, and all costs incurred in investigating or pursuing any of the foregoing or any proceeding relating to any of the foregoing.
“Code” shall mean the Internal Revenue Code of 1986, as amended.
“Collateral” shall mean the property included in the definition of “Collateral” in the Security Agreement.
“Combination Product” has the meaning set forth in the definition of “Net Sales”. “Commercialization” shall mean any and all activities with respect to the manufacture,
distribution, marketing, detailing, promotion, selling and securing of reimbursement and any
other exploitation or commercializtation of the Product in the United States after Regulatory Approval for the Product has been obtained, which shall include, as applicable, seeking and negotiating pricing and reimbursement approvals for the Product in the United States, post- marketing approval studies, post-launch marketing, promoting, detailing, marketing research, distributing, customer service, selling the Product, importing, exporting or transporting the Product for sale, and regulatory compliance with respect to the foregoing. When used as a verb, “Commercialize” means to engage in Commercialization.
“Commercially Reasonable Efforts” shall mean, with respect to the efforts to be expended, or considerations to be undertaken, by the Company and its Affiliates with respect to any objective or activity to be undertaken hereunder with respect to the Product, such efforts and resources normally used by a reasonably prudent company in the pharmaceutical or biotechnology industry similarly situatuated as the Company, to accomplish a substantially similar objective or activity for a pharmaceutical product for which substantially the same regulatory structure is involved as for the Product and irrespective of whether such comparable company has any other products that compete with such pharmaceutical product, which pharmaceutical product is owned or licensed in a similar manner as the Product, which pharmaceutical product is at a similar stage in its Development or product life cycle and is of similar market and profit potential as the Product, taking into account its efficacy, safety, approved labeling, ease of manufacture and use, and the competitiveness of alternative products in a given jurisdiction, pricing/reimbursement for the
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pharmaceutical product in a given jurisdiction, the Intellectual Property and regulatory protection of the pharmaceutical product in a given jurisdiction, the regulatory structure in such jurisdiction and the profitability of the pharmaceutical product in a given jurisdiction, all as measured by the facts and circumstances in existence at the time such efforts are due to be undertaken by the Company. It is anticipated that the level of effort and resources that constitute “Commercially Reasonable Efforts” with respect to a particular indication will change over time, reflecting changes in the status of each Product, as applicable.
“Commitment” means, with respect to each Purchaser, the obligation of such Purchaser to fund the Purchase Price, in accordance with the terms and conditions of this Agreement, which commitment is in the amount set forth opposite such Purchaser’s name on Schedule 1 under the caption “Applicable Commitment”, as such Schedule may be amended from time to time. The aggregate amount of Commitments on the date of this Agreement equals $50,000,000.
“Company” shall have the meaning set forth in the preamble.
“Company Indemnified Party” shall have the meaning set forth in Section 7.05(b). “Confidential Information” shall mean, as it relates to the Company and its Affiliates and
the Product, the non-public Intellectual Property, confidential business information, financial data and other like information (including ideas, research and development, know-how, formulas, schematics, compositions, technical data, specifications, customer and supplier lists, pricing and cost information, and business and marketing plans and proposals), inventory, ideas, algorithms, processes, computer software programs or applications (in both source code and object code form), client lists and tangible or intangible proprietary information or material, or such other information that either party identifies to the other as confidential or the nature of which or the circumstances of the disclosure of which would reasonably indicate that such information is confidential.
“Contracts” means any contract, license, lease, agreement, obligation, promise, undertaking, understanding, arrangement, document, commitment, entitlement or engagement under which a Person has, or will have, any liability or contingent liability (in each case, whether written or oral, express or implied, and whether in respect of monetary or payment obligations, performance obligations or otherwise).
“Control” or “Controlled” shall mean, when used with respect to any item of Intellectual Property, the possession (whether by ownership, license, sublicense or contract) by Company or any of its Affiliates, of the ability to assign or grant to any Third Party the license, sublicense or right to access and use such Intellectual Property as it relates to the manufacture, use, Development and/or Commercialization of the Product, without paying any consideration to any Third Party (now or in the future) or violating the terms of any agreement or other arrangement with any Third Party in existence as of the time such Company or any of its Affiliates, would be required hereunder to grant such license, sublicense or rights of access and use. Notwithstanding the foregoing, a Party and its controlled Affiliates will not be deemed to “Control” any Intellectual Property that, prior to the consummation of a Change of Control of such Party, is owned or in- licensed by a Third Party that becomes an Affiliate of such acquired Party (or that merges or consolidates with such Party) after the Effective Date solely as a result of such Change of Control
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unless prior to the consummation of such Change of Control, such acquired Party or any of its controlled Affiliates also Controlled such Intellectual Property.
“Copyright” shall mean published and unpublished works of authorship whether or not copyrightable, including (i) software, including all source code, object code, firmware, development tools, files, records and data, and all media on which any of the foregoing is recorded;
(ii) databases, data compilations, data collections, and data, including in personally identifiable information and clinical trial data and all aggregated data, rights in databases, data compilations, data collections, and data, including in personally identifiable information and clinical trial data and all aggregated data, development tools, diagrams, formulae, methods, network configurations and architectures, processes, specifications, works of authorship and other forms of technology (whether or not embodied in any tangible form and including all tangible embodiments of the foregoing, such as instruction manuals, laboratory notebooks, prototypes, samples, studies and summaries); (iii) website and mobile content; and (iv) other compilations of information, in each case, whether or not registered, and any and all copyrights in and to the foregoing, together with all common law rights and moral rights therein, and all copyrights, copyright registrations and applications for copyright registrations, including all renewals, extensions, restorations, derivative works and reversions thereof and all common law rights, moral rights and other rights whatsoever accruing thereunder or pertaining thereto throughout the world.
“Designated Jurisdiction” shall mean any country or territory to the extent that such country or territory is the subject of country- or territory-wide Sanctions.
“Development” shall mean, with respect to the Product, any internal or external research or development activities, and any internal or external regulatory activities related to obtaining and maintaining Regulatory Approval for the Product, including development of data or information for the purpose of submission to a Regulatory Authority to obtain authorization to conduct clinical trials and conduct of clinical trials and preparation and submission of data from such trials to obtain, support, or maintain Regulatory Approval of the Product and including activities directed toward the clinical manufacture and manufacturing process development for the Product. “Develop,” “Developing,” and “Developed” will be construed accordingly.
“Disqualified Assignee” shall mean (i) any competitor of the Company or any of its Subsidiaries primarily operating in the same line of business as the Company or any of its Subsidiaries and (ii) any of such competitor’s Affiliates (other than any Person that is a bona fide debt fund primarily engaged in the making, purchasing, holding or other investing in commercial loans, notes, bonds or similar extensions of credit or securities in the Ordinary Course) that are either (x) clearly identifiable as an Affiliate of any such competitor on the basis of such Person’s name or (y) identified by name in writing by the Company to the Administrative Agent from time to time.
“Disqualified Equity Interest” shall mean, with respect to any Person, any Equity Interest of such Person that, by its terms (or by the terms of any security or other Equity Interest into which it is convertible or for which it is exchangeable), or upon the happening of any event or condition
(i) matures or is mandatorily redeemable or requires such Person to use efforts to redeem such Equity Interest (in each case, other than solely for Qualified Equity Interests and cash in lieu of fractional shares), including pursuant to a sinking fund obligation or otherwise, (ii) is redeemable
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at the option of the holder thereof (other than solely for Qualified Equity Interests), in whole or in part, (iii) provides for the scheduled payments of dividends or other distributions in cash (other than the payment of cash in lieu of fractional shares) or other securities that would constitute Disqualified Equity Interests, or (iv) is or becomes convertible into or exchangeable for Indebtedness or any other Equity Interests that would constitute Disqualified Equity Interests, in each case, prior to the date that is ninety-one (91) days after the Effective Date.
“Effective Date” shall mean the first date upon which the conditions set forth in Section 2.03(a), shall have occurred.
“Equity Interests” shall mean, with respect to any Person (for purposes of this defined term, an “issuer”), all shares of, interests or participations in, or other equivalents in respect of such issuer’s capital stock, including all membership interests, partnership interests or equivalent, whether now outstanding or issued after the Effective Date, and in each case, however designated and whether voting or non-voting. Notwithstanding the foregoing, in no event shall any Indebtedness convertible or exchangeable into Equity Interests constitute “Equity Interests” hereunder.
“Equivalent Amount” shall mean, with respect to an amount denominated in one currency, the amount in another currency that could be purchased by the amount in the first currency determined by reference to the Exchange Rate at the time of determination.
“ERISA” shall mean the United States Employee Retirement Income Security Act of 1974, as amended.
“ERISA Affiliate” shall mean, collectively, the Company, any Subsidiary thereof, and any Person under common control, or treated as a single employer, with the Company or any Subsidiary thereof, within the meaning of Section 414(b), (c), (m) or (o) of the Code.
“ERISA Event” shall mean (i) a reportable event as defined in Section 4043 of ERISA with respect to a Title IV Plan, excluding, however, such events as to which the PBGC by regulation has waived the requirement of Section 4043(a) of ERISA that it be notified within thirty (30) days of the occurrence of such event; (ii) the applicability of the requirements of Section 4043(b) of ERISA with respect to a contributing sponsor, as defined in Section 4001(a)(13) of ERISA, to any Title IV Plan where an event described in paragraph (9), (10), (11), (12) or (13) of Section 4043(c) of ERISA is reasonably expected to occur with respect to such plan within the following thirty
(30) days; (iii) a withdrawal by the Company or any ERISA Affiliate thereof from a Title IV Plan or the termination of any Title IV Plan resulting in liability under Section 4063 or 4064 of ERISA;
(iv) the withdrawal of the Company or any ERISA Affiliate thereof in a complete or partial withdrawal (within the meaning of Sections 4203 and 4205 of ERISA) from any Multiemployer Plan if there is any potential liability therefore, or the receipt by the Company or any ERISA Affiliate thereof of notice from any Multiemployer Plan that it is insolvent pursuant to Section 4245 of ERISA; (v) the filing of a notice of intent to terminate, the treatment of a plan amendment as a termination under Section 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a Title IV Plan or Multiemployer Plan; (vi) the imposition of liability on the Company or any ERISA Affiliate thereof pursuant to Section 4062(e) or 4069 of ERISA or by reason of the application of Section 4212(c) of ERISA; (vii) the failure by the Company or any
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ERISA Affiliate thereof to make any required contribution to a Plan, or the failure to meet the minimum funding standard of Section 412 of the Code with respect to any Title IV Plan (whether or not waived in accordance with Section 412(c) of the Code) or the failure to make by its due date a required installment under Section 430 of the Code with respect to any Title IV Plan or the failure to make any required contribution to a Multiemployer Plan; (viii) the determination that any Title IV Plan is considered an at-risk plan or a plan in endangered to critical status within the meaning of Sections 430, 431 and 432 of the Code or Sections 303, 304 and 305 of ERISA; (ix) an event or condition which might reasonably be expected to constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Title IV Plan or Multiemployer Plan; (x) the imposition of any liability under Title I or Title IV of ERISA, other than PBGC premiums due but not delinquent under Section 4007 of ERISA, upon the Company or any ERISA Affiliate thereof; (xi) an application for a funding waiver under Section 303 of ERISA or an extension of any amortization period pursuant to Section 412 of the Code with respect to any Title IV Plan; (xii) the occurrence of a non-exempt prohibited transaction under Section 406 or 407 of ERISA for which the Company or any Subsidiary thereof may be directly or indirectly liable; (xiii) a violation of the applicable requirements of Section 404 or 405 of ERISA or the exclusive benefit rule under Section 401(a) of the Code by any fiduciary or disqualified person for which the Company or any ERISA Affiliate thereof may be directly or indirectly liable;
(xiv) the occurrence of an act or omission which could give rise to the imposition on the Company or any ERISA Affiliate thereof of fines, penalties, taxes or related charges under Chapter 43 of the Code or under Section 409, 502(c), (i) or (1) or 4071 of ERISA; (xv) the assertion of a material claim (other than routine claims for benefits) against any Plan or the assets thereof, or against the Company or any Subsidiary thereof in connection with any such plan; (xvi) receipt from the IRS of notice of the failure of any Qualified Plan to qualify under Section 401(a) of the Code, or the failure of any trust forming part of any Qualified Plan to fail to qualify for exemption from taxation under Section 501(a) of the Code; (xvii) the imposition of any lien (or the fulfillment of the conditions for the imposition of any lien) on any of the rights, properties or assets of the Company or any ERISA Affiliate thereof, in either case pursuant to Title I or IV, including Section 302(f) or 303(k) of ERISA or to Section 401(a)(29) or 430(k) of the Code; or (xviii) the establishment or amendment by the Company or any Subsidiary thereof of any “welfare plan”, as such term is defined in Section 3(1) of ERISA, that provides post-employment welfare benefits in a manner that would increase the liability of the Company.
“ERISA Funding Rules” shall mean the rules regarding minimum required contributions (including any installment payment thereof) to Title IV Plans, as set forth in Sections 412, 430, 431, 432 and 436 of the Code and Sections 302, 303, 304 and 305 of ERISA.
“Erroneous Payment” has the meaning set forth in Section 8.14(a).
“Erroneous Payment Deficiency Assignment” has the meaning set forth in Section 8.14(d). “Erroneous Payment Impacted Assigned Interests” has the meaning set forth in Section
8.14(d).
“Erroneous Payment Return Deficiency” has the meaning set forth in Section 8.14(d). “Erroneous Payment Subrogation Rights” has the meaning set forth in Section 8.14(d).
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“Exchange Rate” shall mean, as of any date, the rate at which any currency may be exchanged into another currency, as set forth on the relevant Reuters screen at or about 11:00 a.m. (Eastern time) on such date. In the event that such rate does not appear on the Reuters screen, the “Exchange Rate” shall be determined by reference to such other publicly available service for displaying exchange rates as may be reasonably designated by the Purchasers.
“Excluded Liabilities and Obligations” shall have the meaning set forth in Section 2.04. “Excluded Taxes” shall mean any of the following Taxes imposed on or with respect to
any Purchaser or required to be withheld or deducted from a payment to such Purchaser: (i) Taxes imposed on or measured by net income (however denominated), franchise Taxes and branch profits Taxes, in each case, (x) imposed as a result of such Purchaser being organized under the Laws of, or having its principal office located in, the jurisdiction imposing such Tax (or any political subdivisions thereof) or (y) that are Other Connection Taxes, (ii) U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Purchaser pursuant to a Law in effect on the date on which such Purchaser acquires the Assigned Interests, except to the extent that, pursuant to Section 5.10, amounts with respect to such Taxes were payable to such Purchaser’s assignor immediately before such Purchaser acquired the Assigned Interests, (iii) Taxes attributable to such Purchaser’s failure to comply with Section 5.10(b), and (iv) any U.S. federal withholding Taxes imposed under FATCA.
“Ex-U.S. Royalties” shall mean the sum of all license fees, commercial or sales-based milestone payments, up-front payments, or royalties received by the Company or any of its Affiliates from licensing or partnership arrangements for the Product outside the U.S. during the Term.
“Ex-U.S. Royalty Payments” shall have the meaning set forth in Section 2.02. “Ex-U.S. Royalty Percentage” shall mean 10.0% (ten percent).
“FATCA” shall mean Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code and any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement, treaty or convention among Governmental Authorities and implementing such Sections of the Code.
“FDA” shall mean the United States Food and Drug Administration and any successor
entity.
“FD&C Act” shall mean the U.S. Food, Drug and Cosmetic Act of 1938, 21 U.S.C. §§ 301
et seq. (or any successor thereto), as amended from time to time, and the rules, regulations, guidelines, guidance documents and compliance policy guides issued or promulgated thereunder.
“Financial Statements” shall mean (a) the audited consolidated balance sheets of the Company and its Subsidiaries as of December 31, 2020, and December 31, 2019, and the related audited consolidated statements of operations, cash flows and shareholders’ equity for the Fiscal
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Years then ended and (b) the unaudited consolidated balance sheet of the Company and its Subsidiaries as of September 30, 2021, and the related unaudited consolidated statements of operations, cash flows and shareholders’ equity for fiscal quarter then ended.
“Fiscal Quarter” shall mean each three (3)-month period commencing January 1, April 1, July 1 or October 1, provided, however, that (a) the first Fiscal Quarter of the Term shall extend from the Effective Date to the end of the first full Fiscal Quarter thereafter, and
(b) the last Fiscal Quarter of the Term shall end upon the expiration or termination of this Agreement.
“Fiscal Year” shall mean the calendar year.
“Funding Notice” shall mean a written notice substantially in the form of Exhibit B. “GAAP” shall mean generally accepted accounting principles in the United States in effect
from time to time.
“Governmental Approval” means any consent, authorization, approval, order, license, franchise, permit, certification, accreditation, registration, clearance or exemption that is issued or granted by or from (or pursuant to any act of) any Governmental Authority, including any application or submission related to any of the foregoing.
“Governmental Authority” shall mean any nation, government, branch of power (whether executive, legislative or judicial), state, province or municipality or other political subdivision thereof and any entity exercising executive, legislative, judicial, monetary, regulatory or administrative functions of or pertaining to government, including without limitation regulatory authorities, governmental departments, agencies, commissions, bureaus, officials, ministers, courts, bodies, boards, tribunals and dispute settlement panels, and other law-, rule- or regulation- making organizations or entities of any state, territory, county, city or other political subdivision of the United States, including the FDA and the United States Patent and Trademark Office.
“Governmental Licenses” shall mean all authorizations issuing from a Governmental Authority, including the FDA, based upon or as a result of applications to and requests for approval from a Governmental Authority for the right to manufacture, import, store, market, promote, advertise, offer for sale, sell, use and/or otherwise distribute the Product, which are owned by or licensed to the Company or any Subsidiary, acquired by the Company or any Subsidiary via assignment, purchase or otherwise or that the Company or any Subsidiary is authorized or granted rights under or to.
“Gross Sales” shall have the meaning set forth in the definition of “Net Sales.” “Guarantee” of or by any Person (the “Guarantor”) shall mean any obligation, contingent
or otherwise, of the Guarantor guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation of any other Person (the “Primary Obligor”) in any manner, whether directly or indirectly, and including any obligation of the Guarantor, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation or to purchase (or to advance or supply funds for the purchase of) any security for the payment thereof, (ii) to purchase or lease property, securities or services for the purpose of
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assuring the owner of such Indebtedness or other obligation of the payment thereof, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity of the Primary Obligor so as to enable the Primary Obligor to pay such Indebtedness or other obligation or (iv) as an account party in respect of any letter of credit or letter of guaranty issued to support such Indebtedness or other obligation; provided, that the term Guarantee shall not include endorsements for collection or deposit in the Ordinary Course.
“Guarantor” shall have the meaning set forth in the definition of “Guarantee.”
“Hard Cap” shall mean an amount equal to the product of the Purchase Price multiplied by
1.75 (one point seven five or one and three quarters).
“Healthcare Laws” shall mean, collectively, all Laws applicable to the business, any product or the Product Commercialization and Development Activities of the Company and its Subsidiaries, whether U.S. or non-U.S., regulating the distribution, dispensing, importation, exportation, quality, manufacturing, labeling, promotion and provision of and payment for drugs, medical or healthcare products, items and services, including, without limitation, 45 C.F.R. et seq. (“HIPAA”); Section 1128B(b) of the Social Security Act, as amended; 42 U.S.C. § 1320a-7b (Criminal Penalties Involving Medicare or State Health Care Programs), commonly referred to as the “Federal Anti-Kickback Statute”; § 1877 of the Social Security Act, as amended; 42 U.S.C. § 1395nn (Limitation on Certain Physician Referrals), commonly referred to as “Xxxxx Statute”; the FD&C Act; all applicable Good Manufacturing Practice requirements addressed in the FDA’s Quality System Regulation (21 C.F.R. Part 820); all rules, regulations and guidance with respect to the provision of Medicare and Medicaid programs or services (42 C.F.R. Chapter IV et seq.); 10 U.S.C. §§1071 – 1110(b) (the “TRICARE Program”); 5 U.S.C. §§ 8901 – 8914 (“FEHB
Plans”); the PDMA; and all rules, regulations and guidance promulgated under or pursuant to any of the foregoing, including any non-U.S. equivalents.
“Hedging Agreement” means any interest rate exchange agreement, foreign currency exchange agreement, commodity price protection agreement or other interest or currency exchange rate or commodity price hedging arrangement. Notwithstanding anything to the contrary in the foregoing, neither any Permitted Bond Hedge nor any Permitted Warrant Transaction shall be a Hedging Agreement.
“Included Product Revenue” shall mean, the sum of (i) Net Sales of the Product by the Company, its Affiliates and any Licensees plus (ii) Other Product Revenue with respect to the Product. Included Product Revenue will be determined from books and records maintained by the Company and its controlled Affiliates in accordance GAAP, consistently applied throughout the Company’s organization and across all products of the Company and its controlled Affiliates; provided that for the purposes of calculating Included Product Revenue with respect to sales or other disposition of the Product by any Licensee, Included Product Revenue will be determined to the knowledge of the Company based on reporting and all information available to the Company under the applicable License Agreement or otherwise.
“Immaterial Subsidiary” means any Subsidiary of the Company that (i) individually constitutes or holds less than five percent (5%) of the Company’s consolidated total assets and generates less than five percent (5%) of the Company’s consolidated total revenue, and (ii) when
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taken together with all then existing Immaterial Subsidiaries, such Subsidiary and such Immaterial Subsidiaries, in the aggregate, would constitute or hold less than five percent (5%) of the Company’s consolidated total assets and generate less than five percent (5%) of the Company’s consolidated total revenue, in each case as pursuant to the most recent fiscal period for which financial statements were required to have been delivered pursuant to Section 5.01(g). If at any time the aggregate amount of the Company’s consolidated total assets or consolidated total revenue attributable to Immaterial Subsidiaries exceeds five percent (5%) of the Company’s consolidated total assets or consolidated total revenue, the Company shall promptly provide notice to the Administrative Agent designating sufficient Subsidiaries as ceasing to constitute “Immaterial Subsidiaries” to eliminate such excess. If at any time any Subsidiary designated as an Immaterial Subsidiary individually constitutes or holds five percent (5%) or more of the Company’s consolidated total assets or generates five percent (5%) or more of the Company’s consolidated total revenue, such Subsidiary shall cease to constitute an Immaterial Subsidiary and the Company shall promptly provide notice to the Administrative Agent of such fact.
“Indebtedness” of any Person shall mean, without duplication, (i) all obligations of such Person for borrowed money, (ii) all obligations of such Person evidenced by bonds, debentures, notes, loan agreements or similar instruments, (iii) all obligations of such Person upon which interest charges are customarily paid (excluding interest penalties for late payments under commercial contracts entered into in the Ordinary Course and, for the avoidance of doubt, which commercial contracts do not relate to obligations for borrowed money or purchase money indebtedness), (iv) all obligations of such Person under conditional sale or other title retention agreements relating to property acquired by such Person, (v) all obligations of such Person in respect of the deferred purchase price of property or services (excluding deferred compensation and accounts payable incurred in the Ordinary Course and not overdue by more than ninety (90) days or otherwise being disputed in good faith), (vi) all Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on property owned or acquired by such Person, whether or not the Indebtedness secured thereby has been assumed, (vii) all Guarantees by such Person of Indebtedness of others,
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“Indemnified Tax” shall mean (i) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of the Assigned Interests or any other Obligation and (ii) to the extent not otherwise described in clause (i), Other Taxes.
“Intellectual Property” shall mean all intellectual property or proprietary rights of any kind anywhere in the world, including any rights in or to Patents, Trademarks, Copyrights and Trade Secrets.
“Intercreditor Agreement” shall mean the Intercreditor Agreement between Oaktree Fund Administration, LLC, as the administrative agent under the Oaktree Term Loan Facility, and Oaktree Fund Administration, LLC, as Administrative Agent on behalf of the Purchasers, acknowledged by the Company and each Subsidiary Guarantor as named therein, providing for the relative rights and priorities of the First Lien Claimholders (as defined therein) and the Second Lien Claimholders (as defined therein) with respect to the Collateral (as defined therein) as may be amended, restated, amended and restated, supplemented or otherwise modified from time to time in accordance with the terms thereof.
“Invention” means any novel, inventive or useful art, apparatus, method, process, machine (including any article or device), manufacture or composition of matter, or any novel, inventive and useful improvement in any art, apparatus, method, process, machine (including article or device), manufacture or composition of matter.
“Law” shall mean, collectively, all U.S. or non-U.S. federal, state, provincial, territorial, municipal or local statute, treaty, rule, guideline, regulation, ordinance, code or administrative or judicial precedent or authority, including any interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable orders, directed duties, requests, licenses, authorizations, judgements, writs, decrees and permits of, and agreements with, any Governmental Authority, in each case whether or not having the force of law.
“License Agreement” shall mean any existing or future license, commercialization, co- promotion, collaboration, distribution, marketing or partnering Contract entered into before or during the Term by the Company or any of its Affiliates that grants a license to a Third Party under the Product Intellectual Property.
“Licensees” shall mean, collectively, the licensees and any sublicensees under each License Agreement; each a “Licensee.”
“Liens” shall mean (a) any mortgage, lien, license, pledge, hypothecation, charge, security interest, or other encumbrance of any kind or character whatsoever, whether or not filed, recorded or otherwise perfected under applicable Law, or any lease, title retention agreement, mortgage, restriction, easement, right-of-way, option or adverse claim (of ownership or possession) (including any conditional sale or other title retention agreement, any lease in the nature thereof, and any other encumbrance on title to real property, any option or other agreement to sell, or give a security interest in, such asset and any filing of or agreement to give any financing statement under the Uniform Commercial Code (or equivalent statutes of any jurisdiction)) or any preferential arrangement that has the practical effect of creating a security interest and (b) in the
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case of Equity Interests, any purchase option, call or similar right of a third party with respect to such Equity Interests.
“Losses” shall mean collectively, any and all claims, damages, losses, judgments, awards, penalties, liabilities, costs and expenses (including reasonable attorneys’ fees and reasonable expenses of investigation) incurred in connection with defending any action, suit or proceeding, giving effect to any tax benefit realized by the indemnified party which is attributable to the Losses to which the indemnity claim relates.
“Majority Purchasers” means Purchasers having a Proportionate Share, in the aggregate, in excess of fifty percent (50%) of the Purchase Price.
“Marketing Authorization” shall mean, with respect to the Product, the Regulatory Approval required by applicable Law to Commercialize the Product including, to the extent required by applicable Law for the Commercialization of the Product, all pricing approvals and reimbursement approvals.
“Material Adverse Change” shall mean, with respect to the Company and its Subsidiaries, a material adverse change in the business, financial performance, operations, financial condition, assets or liabilities (actual or contingent) of the Company and its Subsidiaries, taken as a whole.
“Material Adverse Effect” shall mean (a) the effect of a Material Adverse Change, (b) a material adverse change in or effect on the legality, validity, binding effect or enforceability of any of the Transaction Documents or the rights, remedies and benefits available to, or conferred on, the Purchasers thereunder, (c) material adverse change with respect to the ability of the Company to perform any of its material obligations under the Transaction Documents, and (d) any material adverse change with respect to the Product or the ability of the Company to distribute, market and/or otherwise Commercialize the Product.
“Material Contract” shall mean any Contract specifically related to the Product, including any Product Commercialization and Development Activities, required to be disclosed (including amendments thereto) under regulations promulgated under the Securities Act of 1933 or Securities Exchange Act of 1934, as may be amended, solely to the extent that the absence or termination of such Contract would reasonably be expected to result in a Material Adverse Effect or in a material adverse effect on any Product Commercialization and Development Activities. Notwithstanding the foregoing, employment and management Contracts shall not be Material Contracts.
“Material Subsidiary” means any Subsidiary of the Company that is not an Immaterial Subsidiary.
“Minimum Return Date” means the earliest date on which (a) the aggregate amount of all Revenue Interest Payments and Ex-U.S. Royalty Payments received by Purchasers equals the product of 1.00 multiplied by the Purchase Price and (b) either (i) the trailing six (6) months of Product sales equals at least $150,000,000 or (ii) Seller’s market capitalization (determined on an as-is converted basis) is at least $500,000,000 for twenty (20) consecutive trading days.
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“MOIC” shall mean, as of any date of determination, the aggregate amount of (i) Revenue Interest Payments and (ii) Ex-U.S. Royalty Payments received by the Purchasers under this Agreement, divided by the Purchase Price.
“Multiemployer Plan” shall mean any multiemployer plan, as defined in Section 400l(a)(3) of ERISA, to which any ERISA Affiliate incurs or otherwise has any obligation or liability, contingent or otherwise
“NDA” shall mean, with respect to the Product, (i) a new drug application (as defined in the FD&C Act) and (ii) all supplements and amendments that may be filed with respect thereto.
“Net Sales” shall mean the gross amount billed or invoiced in transactions (“Gross Sales”) by Company, any of its Affiliates or a Licensee (each of the foregoing persons and entities, for purposes of this definition, shall be considered a “Selling Party” and all other persons and entities, also for the purposes of this definition, shall be considered a “non-Selling Party”), for sales or other dispositions of the Product to a Third Party in the United States by the Company, its Affiliate or such Licensee (including any amount received in connection with any upfront, milestone or similar payment), less the sum of the following (to the extent not reimbursed by any Third Party and without duplication):
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in connection with the sales of the Product to any Third Party (excluding any taxes based on income); and
Such amounts shall be determined consistent with a Selling Party’s customary practices and in accordance with GAAP. For the avoidance of doubt, Net Sales shall not include any payments or other consideration received by the Company or its Affiliates from any Licensee with respect to the Development and/or Commercialization of the Product.
Sale or transfer of a Product between any of the Selling Parties shall not result in any Net Sales (unless the Selling Party purchaser or transferee is the ultimate end user of the Product), with Net Sales to be based only on any subsequent sales or dispositions to a non-Selling Party. For clarity, (i) Net Sales shall not include amounts or other consideration received by a Selling Party from a non-Selling Party in consideration of the grant of a (sub)license or co-promotion or distribution right to such non-Selling Party, provided that such consideration is not in lieu of all or a portion of the transfer price of the Product, (ii) sales to a Third-Party distributor, wholesaler, group purchasing organization, pharmacy benefit manager, or retail chain customer shall be considered sales to a non-Selling Party to the extent that no additional consideration is received by a Selling Party for the subsequent use or re-sale by any such distributor, wholesaler, group purchasing organization, pharmacy benefit manager, or retail chain customer, as applicable, (iii) sales of Product by a Selling Party to a non-Selling Party consignee are not recognized as Net Sales by such Selling Party until the non-Selling Party consignee sells the Product, (iv) if a Selling Party receives in-kind consideration for the sale of the Product, then Net Sales shall be calculated as the fair market value of all consideration received by a Selling Party in respect of the Product, whether such consideration is in cash, payment in kind, exchange or other form, as determined in good faith by the Selling Party and (v) Net Sales shall exclude transfers or dispositions for charitable, promotional, pre-clinical, clinical, regulatory, or governmental purposes or pursuant to the Company’s Bridge Program, as disclosed to the Administrative Agent prior to the date hereof, through December 31, 2022, to the extent consideration is not received for such transfers or dispositions that is in excess of the fully burdened manufacturing cost of the applicable quantity of the Product so transferred or disposed.
With respect to sales of the Product invoiced in U.S. dollars, Net Sales shall be determined in U.S. dollars. With respect to sales of the Product invoiced in a currency other than U.S. dollars, Net Sales shall be determined by converting the currencies at which the sales are made into U.S. dollars, at rates of exchange determined in a manner consistent with the Selling Party’s, method for calculating rates of exchange in the preparation of the such person’s annual financial statements in accordance with GAAP consistently applied. No amount for which deduction is permitted pursuant to this definition shall be deducted more than once.
If any Product is sold in the form of a combination product (whether co-formulated or co- packaged) with another product or therapy that is not a Product (each a “Combination Product”), then the Net Sales for any such Combination Product shall be calculated by multiplying actual Net Sales of such Combination Product by the fraction A/(A+B) where “A” is the weighted average
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invoice price of the Product, as applicable, when sold separately during the applicable accounting period in which the sales of the Combination Product were made, and “B” is the combined weighted average invoice prices of all of the active ingredients and delivery technologies and systems other than price of the Product contained in such Combination Product sold separately during such same accounting period. If the Product contained in such Combination Product is not sold separately in finished form, the Company and Administrative Agent shall mutually determine on Net Sales for the Product based on the relative contribution of the Product in good faith and shall take into account in good faith any applicable allocations and calculations that may have been made for the same period in other countries.
If the Company or any of its Affiliates recover monetary damages, settlement amounts or other monetary recovery with respect to the Product from a Third Party in a Claim brought for infringement, misappropriation or other violation of any Intellectual Property relating to the Product, (A) such damages will be allocated first to the reimbursement of any expenses incurred by the Company or such Affiliates, as applicable, for bringing such action (including reasonable attorney’s fees) not already reimbursed from other damages awarded under the same action, and
(B) any remaining amount of such damages will be reduced, if and to the extent applicable, to allocate recovered damages to Third Party licensors of such Intellectual Property (other than damages for lost royalties), only as legally required under pre-existing Contract with such Licensor, then any remaining amount of such damages, settlement amounts or other monetary recovery after application of (A) and (B) will be included as Net Sales.
“Oaktree Term Loan Facility” shall mean the Credit Agreement and Guaranty, dated as of March 17, 2022, by and among Impel NeuroPharma, Inc., as the Company, the subsidiary guarantors from time to time party thereto, the lenders from time to time party thereto, and Oaktree Fund Administration, LLC, as the administrative agent (as amended, amended and restated, supplemented or otherwise modified from time to time) in accordance with the terms of the Intercreditor Agreement.
“Obligations” shall mean any and all obligations of the Company under the Transaction Documents.
“OFAC” shall have the meaning set forth in the definition of “Anti-Terrorism Laws.” “Ordinary Course” shall mean ordinary course of business or ordinary trade activities,
including, with respect to the Company, ordinary course of Development and Commercialization of the Product and related licensing activities, in each case, that are customary for similar businesses in the normal course of their ordinary operations and not while in financial distress.
“Organic Document” means, for any Person, such Person’s formation documents, including, as applicable, its certificate of incorporation, by-laws, certificate of partnership, partnership agreement, certificate of formation, limited liability agreement, operating agreement and all shareholder agreements, voting trusts and similar arrangements applicable to such Person’s Equity Interests, or any equivalent document of any of the foregoing.
“Other Connection Taxes” shall mean, with respect to each Purchaser, Taxes imposed as a result of a present or former connection between such Purchaser and the jurisdiction imposing
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such
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Tax (other than connections arising from such Purchaser having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Transaction Document, or sold or assigned an interest in any Transaction Document).
“Other Intercreditor Agreement” shall mean an intercreditor agreement, among, the lenders or any administrative agent, trustee or representative under any secured Indebtedness incurred by the Company and/or any Subsidiary or any agent, representative or trustee acting on behalf of such holders, and Oaktree Fund Administration, LLC, as Administrative Agent (or any successor thereto) on behalf of the Purchasers, and if applicable, acknowledged by the Company and each Subsidiary as named therein, on terms and conditions substantially consistent with the Intercreditor Agreement or otherwise in form and substance satisfactory to the Administrative Agent, as amended, providing for the relative rights and priorities of the first lien claimholders (or such comparable term) and the second lien claimholders (or such comparable term) with respect to the collateral (or such comparable term), amended and restated, supplement and otherwise modified from time to time in accordance with the terms thereof.
“Other Product Revenue” shall mean, during the Term, all payments and other consideration received by the Company and its Affiliates from any Licensee with respect to the Company’s rights in Product Intellectual Property, to a Third Party Licensee pursuant to a License Agrement in connection with the Development and/or Commercialization of the Product but solely to the extent such consideration pertains to grants of rights pertaining to the United States and not elsewhere, including any (a) license fees, (b) royalties (including on sales of the Product by such Licensees), (c) commercial or sales-based milestone payments based on achievement of certain Product net sales thresholds (including by such Licensees), (d) milestone payments for the achievement of clinical, regulatory submissions or approvals or other development milestones (including by such Licensees) and (e) milestone payments based exclusively on achievement of first commercial sales in a certain jurisdiction (including by such Licensees); but excluding all: (i) payments made by any such Licensee to the extent classified as the Net Sales of the Company or its Affiliates; (ii) payments for equity or debt securities of the Company and its Affiliates that are at or below the fair market value of such securities on the date of receipt; (iii) bona fide research and development funding received by the Company and its Affiliates from any such Licensee for the Company and its Affiliates’ performance of specified research and development work with respect to the Product (e.g., FTE funding), and reimbursement by such Licensee of documented external costs incurred by the Company and its Affiliates for specified research and development work with respect to the Product contracted by the Company and its Affiliates to Third-Party service providers, in each case, specifically for such specified research and development work; and (iv) payments and reimbursements by such Licensees of patent prosecution and maintenance costs actually incurred by the Company and its Affiliates in the prosecution and maintenance of Patents, in each case, determined on a consolidated basis in accordance with GAAP during the Term. For the avoidance of doubt, Other Product Revenue shall not include (i) any royalties included as Net Sales or (ii) any payments or other consideration received by the Company or its Affiliates from any Licensee with respect to the Development and/or Commercialization of the Product; provided such payments are not in lieu of royalty payments.
“Other Taxes” shall mean all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution,
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delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, this Agreement, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment.
“Party” and “Parties” shall have the meaning set forth in the preamble.
“Patents” shall mean: (i) all domestic, national, regional and foreign patents, patent rights, patent applications, provisional applications, patent disclosures and Invention disclosures issued or filed; (ii) any patent applications filed from such patents, patent rights, patent applications, provisional applications, patent disclosures and Invention disclosures claiming priority to any of these, including renewals, divisionals, continuations, continuations-in-part, substitutions, provisionals, converted provisionals, and continued prosecution applications; (iii) any patents that have issued or in the future issue from the foregoing described in clauses (i) and (ii), including utility models, xxxxx patents and design patents and certificates of invention; and (iv) all extensions or restorations by existing or future extension or restoration mechanisms, including revalidations, reissues, re-examinations, revisions, and term extensions (including any supplementary protection certificates and the like) of the foregoing patents or patent applications described in clauses (i), (ii) and (iii), including the Inventions claimed in any of the foregoing and any priority rights arising therefrom.
“Patent Term Extensions” shall have the meaning set forth in Section 5.06(a). “Payment Recipient” has the meaning set forth in Section 8.14(a).
“PBGC” shall mean the United States Pension Benefit Guaranty Corporation referred to and defined in ERISA and any successor entity performing similar functions.
“Permits” shall mean licenses, Governmental Licenses, certificates, accreditations, Regulatory Approvals, other authorizations, registrations, permits, consents, clearances and approvals required in connection with the conduct of the Company’s or any Subsidiary’s business or to comply with any applicable Laws, and those issued by state governments for the conduct of the Company’s or any Subsidiary’s business.
“Permitted Bond Hedge Transaction” means any call or capped call option (or substantively equivalent derivative transaction) relating to the Company’s common stock (or other securities or property following a merger event, reclassification or other similar fundamental change of the Company, or adjustment with respect to the common stock of the Company) that is
“Permitted Convertible Debt” means Indebtedness having a feature which entitles the holder thereof to convert or exchange all or a portion of such Indebtedness into common stock of
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the Company, cash or a combination thereof; provided, that (i) such Permitted Convertible Debt
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shall be unsecured, (ii) such Permitted Convertible Debt shall have recourse only to the Company,
“Permitted Hedging Agreement” means a Hedging Agreement entered into by the Company in the Ordinary Course for the purpose of hedging currency risks or interest rate risks (and not for speculative purposes) and (x) with respect to hedging currency risks, in an aggregate notional amount for all such Hedging Agreements not in excess of $10,000,000 (or the Equivalent Amount in other currencies) and (y) with respect to hedging interest rate risks, in an aggregate notional amount for all such Hedging Agreements not in excess of 100% of the principal amount of the loans outstanding under the Oaktree Term Loan Facility and any Permitted Loan Refinancings thereof.
“Permitted Indebtedness” shall mean:
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$5,000,000 (or the Equivalent Amount in other currencies);
$150,000,000 in principal aggregate amount at any time outstanding;
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this clause (q) shall not exceed $10,000,000 (or the Equivalent Amount in other currencies) at any time outstanding and (iii) no such Indebtedness was created or incurred in connection with, or in contemplation of, such Acquisition.
“Permitted Licensing Agreement” means any non-exclusive or exclusive outbound license for the use of Product Intellectual Property entered into in the Ordinary Course; provided, that the license (i) is negotiated at arm’s length for fair market value, (ii) is approved by the Board, (iii) does not restrict the ability of Company or any of its Subsidiaries, as applicable, to pledge, grant a security interest in or lien on, or assign or otherwise dispose of any such Product Intellectual Property, (iv) is commercially reasonable, (v) does not provide for a sale or assignment of any Intellectual Property and (vi) if exclusive, (A) is suitably limited in scope with respect to only geographical territory outside the United States and so as to be commensurante with the Development and Commercialization rights granted to the licensee or (B) is with respect to only any delivery device or mechanism that delivers a pharmaceutical product (including the precision olefactory delivery platform technology known as POD Technology) other than for use in connection with any individual indication or variation of Trudhesa or any combination ofTrudhesa, or any indication or variation thereof, with any other product.
“Permitted Liens” shall mean:
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or asset of the Company or any of its Subsidiaries and (ii) any such Lien shall secure only those obligations which it secures on the date hereof and renewals, extensions and replacements thereof in connection with Permitted Refinancings of the Indebtedness being secured by such Lien that do not increase the outstanding principal amount thereof other than by an amount equal to unpaid interest and premiums thereon, including tender premium, and any customary and reasonable underwriting discounts, fees, commissions and expenses associated with such extension, renewal or replacement;
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$5,000,000 at any time outstanding;
$5,000,000;
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“Permitted Refinancing” shall mean, with respect to any Indebtedness permitted to be modified, refinanced, replaced, refunded, replaced, renewed or extended hereunder, any modification, refinancing, refunding, replacement, renewal or extension of such Indebtedness; provided that (i) the principal amount (or accreted value, if applicable) thereof does not exceed the principal amount (or accreted value, if applicable) of the Indebtedness so modified, refinanced, refunded, replaced, renewed or extended except by an amount equal to unpaid accrued interest and premium (including any tender premium, and any customary and reasonable underwriting discounts, fees, commissions and expenses associated with such extension, renewal or replacement) thereon plus other amounts paid, and fees and expenses incurred (including any original issue discount and commitment fees), in connection with such modification, refinancing, refunding, replacement, renewal or extension and by an amount equal to any existing revolving commitments unutilized thereunder, and (ii) the Indebtedness resulting from such modification, refinancing, replacement, refunding, renewal or extension has a final maturity date equal to or later than the final maturity date of, and has a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of, the Indebtedness being modified, refinanced, refunded, replaced, renewed or extended (other than customary bridge loans that are exchangeable into loans, notes or securities).
“Permitted Loan Refinancing” shall mean, with respect to the Oaktree Term Loan Facility, any modification, refinancing, refunding, replacement, renewal or extension of such Indebtedness (including any term loan facility, revolving loan facility or combination thereof); provided that (i) the principal amount (or accreted value, if applicable) thereof does not exceed the principal amount (or accreted value, if applicable) of the Oaktree Term Loan Facility except by an amount equal to unpaid accrued interest and premium (including any customary and reasonable underwriting discounts, fees, commissions and expenses associated with such extension, renewal or replacement) thereon plus other amounts paid, and fees and expenses incurred (including any original issue discount and commitment fees), in connection with such modification, refinancing, refunding, replacement, renewal or extension and by an amount equal to any existing revolving commitments unutilized thereunder plus $25,000,000; provided that upon the occurrence of the Minimum Return Date, the principal amount of any Permitted Loan Refinancing shall be unlimited, (ii) the Yield of such Indebtedness resulting from such modification, refinancing, refunding, replacement, renewal or extension does not result in the Company paying an interest rate exceeding the Yield Cap and (iii) the creditors for such Indebtedness, or any administrative agent thereof on behalf of the creditors, resulting from such modification, refinancing, refunding, replacement, renewal or extension shall enter into an Other Intercreditor Agreement.
“Permitted Warrant Transaction” means any call option, warrant or right to purchase (or substantively equivalent derivative transaction) relating to the Company’s common stock (or other securities or property following a merger event, reclassification or other change of the common stock of the Company) sold by the Company and with recourse to the Company only, substantially concurrently with any purchase by the Company of a Permitted Bond Hedge Transaction and settled in common stock of the Company, cash or a combination thereof (such amount of cash determined by reference to the price of the Company’s common stock or such other securities or property), and cash in lieu of fractional shares of common stock of the Company, with a strike price higher than the strike price of the Permitted Bond Hedge Transaction.
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“Person” shall mean an individual, corporation, partnership, limited liability company, association, trust or other entity or organization, but not including a government or political subdivision or any agency or instrumentality of such government or political subdivision.
“Plan” shall mean any employee pension benefit plan (other than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA, and in respect of which the Company or any ERISA Affiliate is (or, if such plan were terminated, would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.
“Primary Obligor” shall have the meaning set forth in the definition of “Guarantee.” “Product” shall mean the pharmaceutical product that has been Developed, is being
Developed, and will be Developed and/or Commercialized during the Term by the Company, its Affiliates or its Licensees comprising Trudhesa, including any improvements or modifications thereto, across all marketed indications in the United States, in any and all dosage forms, presentations, dosages and formations and whether alone or in combination with one or more other therapeutically active pharmaceutical ingredients, including any improvements thereto or modifications thereof.
“Product Authorizations” shall mean any and all approvals of any Governmental Authority, including Regulatory Approvals, whether U.S. or non-U.S. (including the NDA and all applicable biologics license applications, investigational new drug applications, Product Standards, supplements, amendments, pre- and post- approvals, governmental price and reimbursement approvals and approvals of applications for regulatory exclusivity) of any Governmental Authority, in each case, necessary to be held or maintained by, or for the benefit of, the Company or any of its Subsidiaries or its Affiliates for the ownership, use, Development and/or Commercialization of the Product or for any Product Commercialization and Development Activities with respect thereto in any jurisdiction.
“Product Commercialization and Development Activities” shall mean, with respect to the Product and any device or mechanism that delivers the Product, any combination of research, Development, manufacture, import, use, sale, licensing, importation, exportation, shipping, storage, handling, design, labeling, marketing, promotion, supply, distribution, testing, packaging, purchasing or other Commercialization activities, receipt of payment in respect of any of the foregoing (including, in respect of licensing, royalty milestone or similar payments), or any similar or other activities the purpose of which is to commercially exploit the Product.
“Product Intellectual Property” means Intellectual Property that (a) is Controlled by the Company or any of its Subsidiaries and (b) claims or covers the Product, any Product Commercialization and Development Activities, including device or mechanism that delivers the Product, and including any non-published and proprietary information or data contained in any NDA for the Product or any such device or mechanism.
“Product Patent” means any Patent that constitutes Product Intellectual Property. “Product Standards” shall mean all safety, quality and other specifications and standards
applicable to the Product, including all pharmaceutical, biological and other standards promulgated
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by any of the organizations that create, sponsor or maintain safety, quality or other standards, including ISO, ANSI, CEN and SCC and the like.
“Prohibited Payment” shall mean any bribe, rebate, payoff, influence payment, kickback or other payment or gift of money or anything of value (including meals or entertainment) to any officer, employee or ceremonial office holder of any government or instrumentality thereof, political party or supra-national organization (such as the United Nations), any political candidate, any royal family member or any other person who is connected or associated personally with any of the foregoing that is prohibited under any Law for the purpose of influencing any act or decision of such payee in his official capacity, inducing such payee to do or omit to do any act in violation of his lawful duty, securing any improper advantage or inducing such payee to use his influence with a government or instrumentality thereof to affect or influence any act or decision of such government or instrumentality.
“Proportionate Share” shall mean, with respect to any Purchaser, the percentage obtained by dividing (i) such Purchaser’s Commitment by (ii) the Purchase Price.
“Purchase Price” shall mean $50,000,000 (Fifty Million U.S. Dollars).
“Purchasers” shall have the meaning set forth in the preamble, and shall also include any permitted successors or assigns thereof.
“Purchaser Indemnified Party” shall have the meaning set forth in Section 7.05(a). “Put/Call Price” shall mean (i) as of any date before the one-year anniversary of the
Effective Date, an amount equal to (a) 1.25 multiplied by (b) the Purchase Price, (ii) as of any date on or after the one-year anniversary of the Effective Date and before the two-year anniversary of the Effective Date, an amount equal to (a) 1.40 multiplied by (b) the Purchase Price, (iii) as of any date on or after the two-year anniversary of the Effective Date and before the three-year anniversary of the Effective Date, an amount equal to (a) 1.55 multiplied by (b) the Purchase Price, and (iv) as of any date on or after the three-year anniversary of the Effective Date, an amount equal to (a) 1.75 multiplied by (b) the Purchase Price, in each case net of the sum of any Revenue Interest Payments and Ex-U.S. Royalty Payments received by the Purchasers prior to such Put Option Closing Date or Call Option Closing Date, as applicable.
“Put Option” shall have the meaning set forth in Section 5.05(a)(i).
“Put Option Closing Date” shall have the meaning set forth in Section 5.05(a)(i). “Put Option Event” shall mean any one of the following events:
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“Put Option Trigger” shall have the meaning set forth in Section 5.05(a)(i).
“Qualified Equity Interest” shall mean, with respect to any Person, any Equity Interest of such Person that is not a Disqualified Equity Interest.
“Qualified Plan” shall mean an employee benefit plan (as defined in Section 3(3) of ERISA) other than a Multiemployer Plan (i) that is or was at any time maintained or sponsored by the Company or any ERISA Affiliate thereof or to which the Company or any ERISA Affiliate thereof has ever made, or was ever obligated to make, contributions, and (ii) that is intended to be tax qualified under Section 401(a) of the Code.
“Quarterly Report” shall mean, with respect to the relevant Fiscal Quarter of the Company, a report showing the Revenue Interest Payment and Ex-U.S. Royalty Payment due to the Administrative Agent for such Fiscal Quarter, which report shall include a calculation of Included Product Revenue, including Net Sales and Other Product Revenue, and Ex-U.S. Royalties, in each case, to the extent applicable, the adjustments and other reconciliations used to arrive at Included Product Revenue and Ex-U.S. Royalties reconciled, in each case, to the most applicable line item in the Company’s consolidated statements of operations.
“Referral Source” has the meaning set forth in Section 3.09(c). “Register” shall have the meaning set forth in Section 5.10(h).
“Registered Product IP” means all Product Intellectual Property that is issued by, registered with, renewed by or the subject of a pending application before any Governmental Authority or domain name registrar.
“Regulatory Approval” shall mean all approvals, product and/or establishment licenses, registrations, certificates, permits, authorizations and supplements thereto, as well as associated materials (including the product dossier) of any Regulatory Authority necessary for the
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manufacture, use, storage, import, export, transport, or Commercialization of the Product.
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“Regulatory Authority” shall mean any Governmental Authority, whether U.S. or non- U.S., that is concerned with or has regulatory or supervisory oversight with respect to any Product or any Product Commercialization and Development Activities relating to any Product, including the FDA and all equivalent Governmental Authorities, whether U.S. or non-U.S.
“Representatives” has the meaning set forth in Section 7.18.
“Resignation Effective Date” has the meaning set forth in Section 8.09(a). “Revenue Interest Payment(s)” has the meaning set forth in Section 2.02(a).
“Safety Notices” shall mean any recalls, field notifications, market withdrawals, warnings, “dear doctor” letters, investigator notices, safety alerts or other notices of action issued or instigated by the Company, any Subsidiary or any Governmental Authority relating to an alleged lack of safety or regulatory compliance of the Product.
“Sanction” shall mean any international economic or financial sanction or trade embargo imposed, administered or enforced from time to time by the United States Government (including, without limitation, OFAC), the United Nations Security Council, the European Union or its Member States, Her Majesty’s Treasury or other relevant sanctions authority where the Company is located or conducts business.
“Secured Parties” means the Purchasers, the Administrative Agent and any of their respective permitted transferees or assigns.
“Security Agreement” shall mean the Security Agreement between the Company and the Administrative Agent providing for, among other things, the grant by the Company in favor of the Administrative Agent, for the benefit of the Secured Parties, of a valid continuing, perfected lien on and security interest in, the Collateral, which Security Agreement shall be substantially in the form of Exhibit A.
“Selling Party” has the meaning set forth in the definition of “Net Sales”.
“Subsidiary” shall mean, with respect to any Person, any other Person controlled by such first Person, directly or indirectly, through one or more intermediaries.
“Tax” or “Taxes” shall mean any federal, state, local or foreign tax, levy, impost, duty, assessment, fee, deduction or withholding (including backup withholding) or other charge, including all excise, sales, use, value added, transfer, stamp, documentary, filing, recordation and other fees imposed by any taxing authority (and interest, fines, penalties and additions related thereto).
“Tax Debt Instrument” Shall have the meaning set forth in Section 7.08.
“Tax Return” shall mean any report, return, form (including elections, declarations, statements, amendments, claims for refund, schedules, information returns or attachments thereto) or other information supplied or required to be supplied to a Governmental Authority with respect
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to Taxes.
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“Term” shall mean the period from and including the Effective Date through and including the earlier of (i) February 15, 2031 and (ii) the date this Agreement is terminated pursuant to Section 6.01.
“Term Sheet” shall mean the Letter of Intent between the Company and Oaktree Capital Management, L.P., dated January 12, 2021.
“Third Party” shall mean any Person other than the Purchasers or the Company.
“Title IV Plan” shall mean an employee benefit plan (as defined in Section 3(3) of ERISA) other than a Multiemployer Plan (i) that is or was at any time maintained or sponsored by the Company or any ERISA Affiliate thereof or to which the Company or any ERISA Affiliate thereof has ever made, or was obligated to make, contributions, and (ii) that is or was subject to Section 412 of the Code, Section 302 of ERISA or Title IV of ERISA.
“Trademarks” means all trade names, trademarks and service marks, trade dress, corporate names, logos, Internet domain names, IP addresses, social media handles, uniform resource locators and other indicia of origin, trademark and service mark registrations, and applications for trademark and service mark registrations, whether or not registered, and any and all common law rights thereto, including (i) all renewals of trademark and service mark registrations and (ii) all rights whatsoever accruing thereunder or pertaining thereto throughout the world, together, in each case, with the goodwill of the business connected with the use thereof and symbolized thereby.
“Trade Secrets” means all know-how, trade secrets and other proprietary or confidential information, any information of a scientific, technical, or business nature in any form or medium, Inventions and Invention disclosures, all documented research, developmental, demonstration or engineering work (including all novel manufacturing methods), and all other technical data, clinical data and information related thereto, including laboratory notebooks, chemical and biological materials (including any compounds, DNA, RNA, clones, vectors, cells and any expression product, progeny, derivatives or improvements thereto) and the results of experimentation and testing, including samples.
“Transaction Documents” shall mean, collectively, this Agreement, the Security Agreement, the Intercreditor Agreement, any Other Intercreditor Agreement and any related ancillary documents or agreements.
“Trudhesa” means dihydroergotamine mesylate nasal spray for migraine designed to deliver medication to the ideal place in the nose for rapid absorption.
“UCC” shall mean the Uniform Commercial Code (or any similar or equivalent legislation) as in effect in any applicable jurisdiction.
“UCC Financing Statements” shall mean the UCC-1 financing statements, in form and substance reasonably satisfactory to the Administrative Agent and the Purchasers, that shall be filed by the Purchasers at or promptly following the Effective Date, as well as any additional UCC- 1 financing statements or amendments thereto as reasonably requested from time to time, to perfect the Purchasers’ security interest in the Collateral.
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“United States” shall mean the United States of America (including the District of Columbia, its territories and Puerto Rico).
“Weighted Average Life to Maturity” shall mean, when applied to any Indebtedness at any date, the number of years obtained by dividing: (a) the sum of the products obtained by multiplying
“Withdrawal Liability” shall mean, at any time, any liability incurred (whether or not assessed) by any ERISA Affiliate and not yet satisfied or paid in full at such time with respect to any Multiemployer Plan pursuant to Section 4201 of ERISA.
“Yield” shall mean, with respect to any Indebtedness resulting from a Permitted Loan Refinancing, the yield thereof, whether in the form of interest rate, margin, original issue discount, upfront fees, an interest rate benchmark floor, or otherwise, in each case, incurred or payable by the Company generally to all the lenders or holders of such Indebtedness; provided that original issue discount and upfront fees shall be equated to interest rate assuming a four (4) year life to maturity (or, if less, the stated life to maturity at the time of its incurrence of the applicable Indebtedness).
“Yield Cap” shall mean the Yield of the Oaktree Term Loan Facility plus 100 basis points.
ARTICLE II
PURCHASE OF ASSIGNED INTERESTS
Section 2.01 Purchase.
Upon the terms and subject to the conditions set forth in this Agreement, the Company agrees to sell, assign, transfer and convey to the Purchasers, and the Purchasers agree, severally and not jointly, to purchase from the Company, free and clear of all Liens (except Permitted Liens), all of the Company’s rights and interests in and to the Assigned Interests on the Effective Date, in accordance with such Purchasers’ Proportionate Share as set forth on Schedule 1. The Purchasers’ ownership interest in the Assigned Interests so acquired shall vest immediately and automatically upon the Effective Date, subject to the termination provisions of Section 6.01.
Section 2.02 Payments by the Company.
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Section 2.03 Effective Date; Effective Date Deliveries; Payment of Purchase Price; Payments by the Company.
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of the Company and copies thereof; which certificate shall be in form and substance reasonably satisfactory to the Administrative Agent.
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Section 2.04 No Assumed Obligations.
Notwithstanding any provision in this Agreement or any other writing to the contrary, the Purchasers are acquiring only the Assigned Interests and are not assuming any liability or obligation of the Company or any of its Affiliates of whatever nature, whether presently in existence or arising or asserted hereafter, whether under any Transaction Document or otherwise (the “Excluded Liabilities and Obligations”). The Purchasers expressly do not assume or agree to be responsible for any Excluded Liabilities and Obligations and all such liabilities and obligations shall be retained by and remain solely obligations and liabilities of the Company or its Affiliates.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to the Administrative Agent and the Purchasers on the Effective Date the following:
Section 3.01 Organization.
Each of the Company and its Subsidiaries is duly organized, validly existing and in good standing under the Laws of its respective jurisdiction of formation and has all corporate or other powers and all licenses, authorizations, consents and approvals required to carry on its respective business as now conducted and as proposed to be conducted in connection with the transactions contemplated by the Transaction Documents. Each of the Company and its Subsidiaries is duly qualified to do business as a foreign corporation and is in good standing in every jurisdiction in which the failure to do so would be reasonably expected to have a Material Adverse Effect. The
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Company has no direct or indirect Subsidiaries, other than those disclosed to the Purchaser in
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writing on or prior to the date hereof (including as disclosed in its public filings with the Securities and Exchange Commission).
Section 3.02 Authorization.
The Company has all necessary power and authority to enter into, execute and deliver the Transaction Documents and to perform all of the obligations to be performed by it hereunder and thereunder and to consummate the transactions contemplated hereunder and thereunder. The Transaction Documents have been duly authorized, executed and delivered by the Company and each Transaction Document constitutes the valid and binding obligation of the Company, enforceable against the Company in accordance with their respective terms, except as such enforceability may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or similar Laws of general applicability affecting the enforcement of creditors’ rights and (ii) the application of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
Section 3.03 Governmental Authorization.
None of the execution, delivery and performance by the Company of the Transaction Documents, or the consummation by the Company of the transactions thereunder, (i) requires any Governmental Approval of, registration or filing with, or any other action by, any Governmental Authority or any other Person, except for (x) such as have been obtained or made and are in full force and effect and (y) filings and recordings in respect of perfecting or recording the Liens created pursuant to the Security Agreement, (ii) will violate (1) any Law, (2) any Organic Document of the Company or any of its Subsidiaries or (3) any order of any Governmental Authority, that in the case of clause (ii)(1) or clause (ii)(3), individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect, or (iii) will result in the creation or imposition of any Lien (other than Permitted Liens) on any asset of the Company or any of its Subsidiaries.
Section 3.04 Ownership.
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Section 3.05 Financial Statements; Material Adverse Change.
Section 3.06 No Undisclosed Liabilities.
Except for those liabilities (a) identified in the Financial Statements (including the notes thereto), (b) incurred by the Company in the Ordinary Course since December 31, 2021, or (c) in connection with the Obligations under the Transaction Documents, there are no material liabilities of the Company or its Subsidiaries related to the Product, of any kind whatsoever, whether accrued, contingent, absolute, determined or determinable.
Section 3.07 Solvency.
Assuming consummation of the transactions contemplated by the Transaction Documents,
Section 3.08 Litigation.
Other than as disclosed on Schedule 3.08: (a) there is no Claim pending or, to the knowledge of the Company, threatened in writing against the Company or its Subsidiaries or any governmental inquiry pending or, to the knowledge of the Company, threatened in writing against the Company or its Subsidiaries, in each case which would question the validity of, or could adversely affect the transactions contemplated by any of the Transaction Documents; and (b) there is no Claim pending or, to the knowledge of the Company, threatened in writing against the Company, its Subsidiaries or, to the knowledge of the Company, any other Person relating to the Product, the Intellectual Property, the Regulatory Approvals, the Included Product Revenues, the Ex-U.S. Royalties or the Assigned Interests.
Section 3.09 Compliance with Laws.
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Section 3.10 Conflicts.
Neither the execution and delivery of any of this Agreement or the other Transaction Documents to which the Company is a party nor the performance or consummation of the
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transactions contemplated hereby or thereby will: (a) contravene, conflict with, result in a breach or violation of, constitute a default under, or accelerate the performance provided by, in any material respects any provisions of: (i) any Law or (ii) any contract, agreement, commitment or instrument to which the Company or its Subsidiaries is a party or by which the Company or its Subsidiaries or any of their respective assets or properties is bound or committed that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect;
Section 3.11 Subordination.
Subject to the Intercreditor Agreement or Other Intercreditor Agreement, the claims and rights of Purchaser created by any Transaction Document in and to the Assigned Interests are not and shall not be contractually subordinated in right of payment to any creditor of the Company or any other Person.
Section 3.12 Intellectual Property.
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infringe or constitute a misappropriation of, and has not within the past three (3) years violated, infringed or constituted a misappropriation of, any other Person’s rights in or with respect to Intellectual Property;
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interest has filed any disclaimer or made or permitted any other voluntary reduction in the scope of the Inventions claimed in such Product Patents;
§ 1.56, which includes a duty to disclose all information known to that individual to be “material to patentability,” as such is defined in 37 C.F.R. § 1.56, and complied with any analogous Laws outside the United States.
Section 3.13 Regulatory Approval.
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Subsidiaries nor, to the knowledge of the Company, any of their respective agents, suppliers, licensors or licensees have received any inspection reports, warning letters or notices or similar documents with respect to any Product or any Product Commercialization and Development Activities from any Regulatory Authority within the last two (2) years that asserts material lack of compliance with any applicable Healthcare Laws or Product Authorizations; (ii) neither the Company, nor any of its Subsidiaries nor, to the knowledge of the Company, any of their respective agents, suppliers, licensors or licensees have received any material notification from any Regulatory Authority within the last two (2) years, asserting that any Product or any Product Commercialization and Development Activities lacks a required Product Authorization; (iii) there is no pending regulatory action, investigation or inquiry (other than non-material routine or periodic inspections or reviews) against the Company, any of its Subsidiaries or, to the knowledge of the Company, any of their respective suppliers, licensors or licensees with respect to any Product or any Product Commercialization and Development Activities, and, to the knowledge of the Company, there is no basis in fact for any material adverse regulatory action against the Company or any of its Subsidiaries or, to the knowledge of the Company, any of their respective suppliers agents, licensors or licensees with respect to any Product or any Product Commercialization and Development Activities; and (iv) without limiting the foregoing, (A) (1) there have been no material product recalls, safety alerts, corrections, withdrawals, marketing suspensions, removals or the like conducted, undertaken or issued by the Company or any of its Subsidiaries, whether voluntary, at the request, demand or order of any Regulatory Authority or otherwise, with respect to any Product, any Product Commercialization and Development Activities or any Product Authorization within the last two (2) years, (2) no such product recall, safety alert, correction, withdrawal, marketing suspension, removal or the like has been requested, demanded or ordered by any Regulatory Authority within the last two (2) years, and, to the knowledge of the Company, there is no basis in fact for the issuance of any such product recall, safety alert, correction, withdrawal, marketing suspension, removal or the like with respect to any Product or any Product Commercialization and Development Activities, and (B) no criminal, injunctive, seizure, detention or civil penalty action has been commenced or threatened in writing by any Regulatory Authority within the last two (2) years with respect to or in connection with any Product or any Product Commercialization and Development Activities, and there are no consent decrees (including plea agreements) that relate to any Product or any Product Commercialization and Development Activities, and, to the knowledge of the Company, there is no basis in fact for the commencement of any criminal injunctive, seizure, detention or civil penalty action by any Regulatory Authority relating to any Product or any Product Commercialization and Development Activities or for the issuance of any consent decree. Neither the Company nor any of its Subsidiaries, nor, to the knowledge of the Company, any of their respective agents, suppliers, licensees or licensors, is employing or utilizing the services of any individual, in connection with Product Commercialization and Development Activities, who has been debarred from any federal healthcare program.
Section 3.14 Material Contracts.
Except as set forth on Schedule 3.14, neither the Company nor its Subsidiaries is in material breach of or in material default under any Material Contract. To the knowledge of the Company, nothing has occurred and no condition exists that would permit any other party thereto to terminate any Material Contract. Neither the Company nor its Subsidiaries has received any notice or, to the knowledge of the Company, any threat of termination of any such Material Contract. To the
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knowledge of the Company, no other party to a Material Contract is in breach of or in default under such Material Contract. All Material Contracts are valid and binding on the Company or its Subsidiaries and, to the knowledge of the Company, on each other party thereto, and are in full force and effect.
Section 3.15 Broker’s Fees.
The Company and its Subsidiaries have not taken any action that would entitle any Person to any commission or broker’s fee in connection with this Agreement except fees, commissions and expenses to be paid to Cowen.
Section 3.16 Pension Matters.
Schedule 3.16 sets forth, as of the Effective Date, a complete and correct list of, and that separately identifies, (i) all Title IV Plans, (ii) all Multiemployer Plans and (iii) all material Benefit Plans. Each Benefit Plan, and each trust thereunder, intended to qualify for tax exempt status under Section 401 or 501 of the Code or other Laws so qualifies. Except for those that could not, in the aggregate, reasonably be expected to result in a Material Adverse Effect, (x) each Benefit Plan is in compliance with applicable provisions of ERISA, the Code and other Laws, (y) there are no existing or pending (or to the knowledge of the Company or any of its Subsidiaries, threatened) claims (other than routine claims for benefits in the normal course), sanctions, actions, lawsuits or other proceedings or investigation involving any Benefit Plan to which the Company or any Subsidiary thereof incurs or otherwise has or could have an obligation or any liability or claim and
Section 3.17 Indebtedness and Liens.
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Section 3.18 Compliance of the Product.
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Section 3.19 Data Privacy.
Except as would not reasonably be expected to have a Material Adverse Effect, neither the Company nor any of its Subsidiaries has experienced any material breach of security or unauthorized access by third parties of any personally identifiable information from any individuals, including, without limitation, any customers, prospective customers employees and/or other Third Parties that is in its possession, custody, or control.
Section 3.20 Taxes.
The Company and each of its Subsidiaries has timely filed or caused to be filed all income and other Tax Returns and reports required to have been filed and has paid or caused to be paid all Taxes required to have been paid by it, except (a) Taxes that are being contested in good faith by appropriate proceedings and for which the Company or such Subsidiary, as applicable, has set aside on its books adequate reserves with respect thereto in accordance with GAAP or (b) to the extent that the failure to do so would not reasonably be expected to have an Material Adverse Effect.
Section 3.21 Full Disclosure.
None of the reports, financial statements, certificates or other written information (other than projections, forward-looking information and information of a general economic or industry specific nature) furnished by or on behalf of the Company or any of its Subsidiaries to the Purchasers in connection with the negotiation of this Agreement and the other Transaction Documents or delivered hereunder or thereunder (as modified or supplemented by other information so furnished) contains when furnished any material misstatement of material fact or omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not materially misleading; provided that, with respect to projected financial information, the Company represents only that such information was prepared in good faith based upon assumptions believed to be reasonable at the time delivered, and it being understood that such projected financial information and all other forward looking information are not to be viewed as facts are subject to significant uncertainties and contingencies, many of which are beyond the control of the Company or any of its Subsidiaries, and that actual results during the period or periods covered thereby may differ significantly from such projected results and that the differences may be material.
Section 3.22 OFAC; Anti-Terrorism Laws.
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Section 3.23 Anti-Corruption.
Neither the Company nor any of its Subsidiaries or Affiliates, nor, to the knowledge of the Company, any of their respective directors, officers or employees, directly or, to the knowledge of the Company, indirectly, has (i) materially violated or is in material violation of any applicable anti-corruption Law, or (ii) made, offered to make, promised to make or authorized the payment or giving of, directly or, to the knowledge of the Company, indirectly, any Prohibited Payment.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS
The Purchasers, severally and not jointly, represent and warrant to the Company, solely with respect to such Purchaser, the following:
Section 4.01 Organization.
Each of the Purchasers is a duly formed and validly existing corporate entity under the Laws of the United States.
Section 4.02 Authorization.
Each Purchaser has all necessary power and authority to enter into, execute and deliver the Transaction Documents and to perform all of the obligations to be performed by it hereunder and thereunder and to consummate the transactions contemplated hereunder and thereunder. The Transaction Documents have been duly authorized, executed and delivered by such Purchaser and each Transaction Document constitutes the valid and binding obligation of such Purchaser, enforceable against such Purchaser in accordance with their respective terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium or similar Laws affecting creditors’ rights generally or general equitable principles.
Section 4.03 Broker’s Fees.
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No Purchaser has taken any action that would entitle any Person to any commission or broker’s fee in connection with the transactions contemplated by the Transaction Documents.
Section 4.04 Conflicts.
Neither the execution and delivery of this Agreement or any other Transaction Document to which each Purchaser is a party nor the performance or consummation of the transactions contemplated hereby or thereby will: (a) contravene, conflict with, result in a breach or violation of, constitute a default under, or accelerate the performance provided by, in any material respects any provisions of: (i) any Law, rule or regulation of any Governmental Authority, or any judgment, order, writ, decree, permit or license of any Governmental Authority, to which such Purchaser or any of its assets or properties may be subject or bound; or (ii) any contract, agreement, commitment or instrument to which such Purchaser is a party or by which such Purchaser or any of its assets or properties is bound or committed; (b) contravene, conflict with or result in a breach or violation of any provisions of the organizational or constitutional documents of such Purchaser; or (c) require any notification to, filing with, or consent of, any Person or Governmental Authority, except, in the case of the foregoing clauses (a) or (c), for any such breaches, defaults or other occurrences that would not, individually or in the aggregate, have a material adverse effect on the ability of such Purchaser to perform any of their obligations under the Transaction Documents.
ARTICLE V COVENANTS
From the date hereof until the termination of this Agreement pursuant to Section 6.01, the
following covenants shall apply:
Section 5.01 Access; Information.
(ii) proceeding or inquiry of any Governmental Authority pending or, to the knowledge of the Company, threatened in writing against the Company, in each case that is related to any Material Contract, the Product, the Product Intellectual Property or any Transaction Document, in each
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case, that would reasonably be expected to result in a Material Adverse Effect.
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such quarter, together with a certificate of the Company, certifying that to the knowledge of the Company (i) such Quarterly Report is a true and complete copy and (ii) any statements and any data and information therein prepared by the Company are true, correct and accurate in all material respects. The Company shall use, and shall ensure that each of its Affiliates shall use, Commercially Reasonable Efforts to include in each contract of the Company for the Development or Commercialization of the Product entered into on or after the Effective Date, obligations reasonably appropriate to ensure that the counterparty to such contract shall furnish to the Company all information necessary for the Company to comply with this Section 5.01(f) and calculate the Included Product Revenue or Ex-U.S. Royalties as set forth in this Agreement.
(a) [Reserved].
It is understood and agreed that documents required to be delivered pursuant to this Section 5.01(g) shall be deemed delivered on the date that such documents are publicly available on “XXXXX.”
Section 5.02 Material Contracts.
The Company shall, and shall cause its Subsidiaries to, comply with all material terms and conditions of and fulfill all of its obligations under all the Material Contracts, except for such noncompliance which would not reasonably be expected to give rise to a Material Adverse Effect.
Section 5.03 Public Announcement.
Except as required by Law or any Governmental Authority (including the Securities and Exchange Commission) or except with the prior written consent of the other party (which consent shall not be unreasonably withheld), no party shall issue any press release or make any other public disclosure with respect to the transactions contemplated by this Agreement or any other Transaction Document; provided, however, that the Company and the Administrative Agent may jointly prepare a press release for dissemination promptly following the Effective Date and the Company may file a current report on Form 8-K (or any other public announcement using substantially the same text as the press release or Form 8-K) with respect to the transactions contemplated by this Agreement.
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Section 5.04 Efforts; Further Assurance.
Section 5.05 Put Option; Call Option.
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Obligations, whether due to acceleration pursuant to the terms of this agreement, by operation of Law or otherwise (including, without limitation, on account of any bankruptcy filing), in view of the impracticability and extreme difficulty of ascertaining the actual amount of damages to the Purchasers or profits lost by the Purchasers as a result of such acceleration, and by mutual agreement of the Parties as to a reasonable estimation and calculation of the lost profits or damages of the Purchasers as a result thereof. Any Automatic Put Payment under Section 5.05(a)(i) above shall be presumed to be the liquidated damages sustained by each Purchaser as the result of the early termination, acceleration or prepayment and the Company agrees that such Automatic Put Payments are reasonable under the circumstances currently existing. In the event an Automatic Put Payment is determined not to be due and payable by order of any court of competent jurisdiction, including, without limitation, by operation of the Bankruptcy Code, despite an Automatic Put Option Trigger having occurred, such Automatic Put Payment shall nonetheless constitute Obligations under this Agreement for all purposes hereunder. The Company hereby waives the provisions of any present or future statute or Law that prohibits or may prohibit the collection of the prepayment fee and any defense to payment, whether such defense may be based in public policy, ambiguity, or otherwise. The Company, the Administrative Agent and the Purchasers acknowledge and agree that any Automatic Put Payment due and payable in accordance with this Agreement shall not constitute unmatured interest, whether under Section 5.02(b)(3) of the Bankruptcy Code or otherwise. The Company further acknowledges and agrees, and waives any argument to the contrary, that payment of such amount does not constitute a penalty or an otherwise unenforceable or invalid obligation. The Company expressly agrees that (i) the Automatic Put Payments are reasonable and is the product of an arm’s-length transaction between sophisticated business people, ably represented by counsel, (ii) any Automatic Put Payment shall be payable notwithstanding the then prevailing market rates at the time payment is made, (iii) there has been a course of conduct between the Purchasers and the Company giving specific consideration in this transaction for such agreement to pay the Automatic Put Payment, (iv) the Company shall be estopped hereafter from claiming differently than as agreed to in this Section 5.05(a), (v) the Company’s agreement to pay any Automatic Put Payment is a material inducement to the Purchasers to fund the Purchase Price, and
(vi) the Automatic Put Payments represent a good faith, reasonable estimate and calculation of the lost profits, losses or other damages of the Purchasers and that it would be impractical and extremely difficult to ascertain the actual amount of damages to the Purchasers or profits lost by the Purchasers as a result of such event.
(iii) If a Put Option Event shall have occurred and be continuing, and the Company fails to pay, when and as required to be paid under this Section 5.05(a), the Administrative Agent may, with or without notice, (i) declare all or any portion of the Obligations to be forthwith due and payable without presentment, demand, protest or further notice of any kind, all of which are expressly waived by the Company; and (ii) exercise any rights and remedies provided to the Purchaser under any Transaction Documents and/or pursuant to any applicable Laws or in equity, including all remedies provided under the UCC.
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exercisable upon ten (10) days’ written notice to the Administrative Agent, to repurchase the Assigned Interests from the Purchasers at a repurchase price equal to the Put/Call Price. In order to exercise the Call Option, the Company shall deliver written notice to the Administrative Agent of its election to so repurchase the Assigned Interests not less than ten (10) days prior to the proposed closing date (the “Call Option Closing Date”); provided, however, that such notice may state that it is conditioned upon the effectiveness of any financing transaction or one or more other events specified therein (including the occurrence of a Change of Control), in which case such notice may be revoked by the Company (by notice to the Administrative Agent on or prior to the specified effective date) if such condition is not satisfied. On the Call Option Closing Date, the Company shall repurchase from the Purchasers the Assigned Interests at the Put/Call Price, the payment of which shall be made by wire transfer of immediately available funds to the account designated by the Purchasers. Immediately upon exercise by the Company of the Call Option and the payment by the Company to the Purchasers of the Put/Call Price, the Purchasers shall be deemed to have automatically assigned to the Company all right, title, and interest in and to the Assigned Interest.
Section 5.06 Intellectual Property.
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Company or the Purchasers, respectively, shall inform the other party hereto of such actual or suspected infringement or invalidity claim and shall, in addition to such notice, provide to the other party any material information within such party’s possession pertaining thereto (which may be subject to agreement necessary to protect privilege, confidentiality and the like with respect to such information). The Company shall use Commercially Reasonable Efforts to defend or assert the Product Intellectual Property, including the Product Patents against such infringement or interference by any other Persons marketing or commercializing any product that is directly competitive with the Product, and against any claims of invalidity or unenforceability of any material Product Intellectual Property, including any material Product Patents, in the United States (including, by bringing any legal action for infringement or defending any counterclaim of invalidity or action of a Third Party for declaratory judgment of non-infringement or non- interference). The Company will keep the Purchasers reasonably informed with respect to the status of any such enforcement and/or defense of the Product Intellectual Property as the Purchasers may, from time to time, reasonably request. The Company shall not, and shall use its Commercially Reasonable Efforts to cause any Licensee not to, disclaim or abandon, or fail to take any action necessary to prevent the disclaimer or abandonment of, any Product Intellectual Property, including any of the material Product Patents, except in accordance with reasonable and prudent business practice in a manner that would not reasonably be expected to result in a Material Adverse Effect.
Section 5.07 Protective Covenants.
The Company shall not, without the prior written consent of the Purchasers:
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Section 5.08 Notice.
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Section 5.09 Use of Proceeds.
The Company shall use proceeds received from the Purchasers in support of the Development and Commercialization of the Product and for working capital and general corporate purposes.
Section 5.10 Taxes.
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made (including such deductions and withholdings applicable to additional sums payable under this Section) the Purchasers receive an amount equal to the sum they would have received had no such deduction or withholding been made.
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pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive absent manifest error, and the Company and the Purchasers shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as the Purchasers hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Company and the Purchasers, at any reasonable time and from time to time upon reasonable prior written notice.
Section 5.11 Compliance with Laws and Other Obligations.
The Company will, and will cause each of its Subsidiaries to, (a) comply with all Laws (including Anti-Terrorism Laws and Sanctions) applicable to it and its business activities in all material respects and (b) comply in all material respects with all Healthcare Laws and Governmental Licenses and Product Authorizations applicable to it and its business activities. Within sixty (60) days after the Effective Date, the Company shall institute (if not already in effect) and thereafter maintain in effect and enforce policies and procedures reasonably designed to promote compliance by the Company, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Terrorism Laws and Sanctions.
Section 5.12 Maintenance of Properties, Etc.
The Company shall, and shall cause each of its Subsidiaries to, maintain and preserve all of its assets and properties relating to the Product or Product Commercialization and Development Activities, or that are otherwise necessary or useful in the conduct of its business in good working order and condition in accordance with the general practice of other Persons of similar character and size, ordinary wear and tear and damage from casualty or condemnation excepted.
Section 5.13 Licenses.
The Company shall, and shall cause each of its Subsidiaries to, obtain and maintain all Governmental Licenses necessary for the execution, delivery and performance of the Transaction Documents, the consummation of the transactions thereunder or the operation and conduct of its business and ownership of its properties (including its Product Commercialization and Development Activities), except where the failure to do so could not reasonably be expected to have a Material Adverse Effect.
Section 5.14 Maintenance of Regulatory Approvals, Contracts, Etc.
With respect to the Product and all Product Commercialization and Development Activities, the Company will (directly or indirectly), and will cause each of its Subsidiaries (to the extent applicable) to, (i) use Commercially Reasonable Efforts to maintain in full force and effect all Regulatory Approvals, Material Contracts and other rights, interests or assets (whether tangible or intangible) reasonably necessary for the operations of such Person’s business, except as would not reasonably be expected to have a Material Adverse Effect, and (ii) maintain in full force and effect, and pay all costs and expenses relating to, such Regulatory Approvals, Material Contracts and Product Intellectual Property, in each case, owned, used or controlled by the Company or any such Subsidiary that are used in or necessary for any related Product Commercialization and Development Activities, except as would not be reasonably expected to have a Material Adverse
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Effect; (iii) promptly after obtaining knowledge thereof, notify the Purchasers of any Claim by any
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Person that the conduct of the business of the Company or any of its Subsidiaries in connection with any Product Commercialization and Development Activities, has infringed, violated or misappropriated any Intellectual Property of such Person, where such claim could reasonably be expected to have a Material Adverse Effect; and (iv) promptly after obtaining knowledge thereof, notify the Purchasers of any infringement, misappropriation or other violation by any Person of the Product Intellectual Property that could reasonably be expected to have a Material Adverse Effect, and stop, curtail or xxxxx such infringement, misappropriation or violation if, and to the extent, determined appropriate by the Company in the exercise of its prudent business judgment.
Section 5.15 ERISA Compliance.
The Company shall comply, and shall cause each of its Subsidiaries to comply, with the provisions of ERISA with respect to any Plans to which the Company or such Subsidiary is a party as an employer in all material respects.
Section 5.16 Commercialization of the Product.
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relevant breach and use Commercially Reasonable Efforts to seek to enforce all of its (or its Subsidiary’s) rights and remedies thereunder.
Section 5.17 Payment of Obligations.
Each of the Company and its Subsidiaries shall pay and discharge all its obligations and liabilities (a) prior to the date on which penalties attach thereto, with respect to all material federal, state and other material Taxes imposed upon it or its properties or assets, unless the same are being contested in good faith by appropriate proceedings diligently conducted and adequate reserves in accordance with GAAP are being maintained by the Company or its Subsidiaries and (b) as the same shall become due and payable, all lawful claims which, if unpaid, would by Law become a Lien upon any Collateral (other than Permitted Liens).
ARTICLE VI
TERMINATION
Section 6.01 Termination Date.
Except as provided in this Section 6.01 and in Section 6.02, this Agreement shall terminate upon the earliest of (i) February 15, 2031; provided that, subject to the Hard Cap, if any payments are required to be made by one of the Parties hereunder after that date, this Agreement shall remain in full force and effect until any and all such payments have been made in full, and (except as provided in Section 6.02) solely for that purpose, (ii) the Purchaser’s exercise of the Put Option or the Company’s exercise of the Call Option in accordance with Section 5.05(a) or (b), in each case upon the payment of the Put/Call Price and (iii) the date on which the Company has made Revenue Interest Payments or Ex-U.S. Royalty Payments in an amount equal to no less than the Hard Cap. Upon expiration or termination of this Agreement in accordance with this Section 6.01 and upon payment of any amounts due to the Purchasers hereunder, all right, title, and interest in and to the Assigned Interest shall automatically revert to the Company, and the Purchasers will have no further rights in the Assigned Interest or the Collateral.
Section 6.02 Effect of Termination.
In the event of the termination of this Agreement pursuant to Section 6.01, (a) this Agreement shall forthwith become void and have no effect without any liability on the part of any party hereto or its Affiliates, directors, officers, stockholders, partners, managers or members other than the provisions of this Section 6.02, Section 5.03, Section 7.05 and Section 7.18 hereof, which shall survive any termination as set forth in Section 6.01, and (b) upon the payment and performance in full of all Obligations hereunder (other than contingent indemnification claims for which no claim has been made), the security interests in the Collateral created by any Transaction Document shall be automatically released. Nothing contained in this Section 6.02 shall relieve any party from liability for any breach of this Agreement. In connection with any such termination and release, the Purchasers shall execute and deliver to the Company all documents the Company shall reasonably request to evidence such termination and release.
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ARTICLE VII
MISCELLANEOUS
Section 7.01 Survival.
All representations and warranties made herein and in any other Transaction Document, any certificates or in any other writing delivered pursuant hereto or thereto shall survive the execution and delivery of this Agreement and shall continue to survive until the termination of this Agreement in accordance with Article VI.
Section 7.02 Limitations on Damages.
Notwithstanding anything to the contrary in this Agreement, in no event shall either party be liable for special, indirect, incidental, punitive or consequential damages of the other party, whether or not caused by or resulting from the actions of such party or the breach of its covenants, agreements, representations or warranties hereunder, even if such party has been advised of the possibility of such damages.
Section 7.03 Notices.
All notices, consents, waivers and communications hereunder given by any party to the other shall be in writing (including facsimile transmission and email) and delivered personally, by telegraph, telecopy, telex or facsimile, by a recognized overnight courier, or by dispatching the same by certified or registered mail, return receipt requested, with postage prepaid, in each case addressed (with a copy by email):
If to the Administrative Agent to:
Oaktree Fund Administration, LLC 000 X. Xxxxx Xxxxxx, 00xx Xx.
Los Angeles, CA 90071 Attn: Oaktree Agency
Email: Xxxxxxxxxxxxx@xxxxxxxxxx.xxx with a copy to:
Oaktree Capital Management, L.P. 000 X. Xxxxx Xxxxxx, 00xx Xx.
Los Angeles, CA 90071 Attn: Xxxx Xxxxx
Email:
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XxXxxxx@xxxxxxxxxxxxxx.xxx and a copy to:
Xxxxxxxx & Xxxxxxxx LLP 000 Xxxxx Xxxxxx
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New York, NY 10004 Attn: Xxx X. Xxxxx
Email: xxxxxx@xxxxxxxx.xxx If to the Company to:
Impel NeuroPharma, Inc.
000 Xxxxxxx Xxxxxx Xxxx, Xxxxx 000
Seattle, WA 98119
Attn: Chief Financial Officer Email: xxxxxxx@xxxxxxx.xxx
with a copy to:
Fenwick & West LLP
0000 Xxxxxx Xxxxxx, 00xx Xxxxx Xxxxxxx, XX 00000
Attention: Xxxx Xxxxx
Email: xxxxxxx@xxxxxxx.xxx
or to such other address or addresses as the Administrative Agent or the Company may from time to time designate by notice as provided herein, except that notices of changes of address shall be effective only upon receipt. Except as otherwise provided in this Agreement or therein, all such communications shall be deemed to have been duly given upon receipt of a legible copy thereof, in each case given or addressed as aforesaid. All such communications provided for herein by telecopy shall be confirmed in writing promptly after the delivery of such communication (it being understood that non-receipt of written confirmation of such communication shall not invalidate such communication).
Section 7.04 Successors and Assigns.
The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. The Company shall not be entitled to assign any of its obligations and rights under the Transaction Documents without the prior written consent of the Purchasers, and any such assignment in violation of this Section 7.04 shall be null and void. Solely upon the consent of the Company (which consent may not be unreasonably withheld, delayed or conditioned), each Purchaser may assign any of its obligations or rights under the Transaction Documents without restriction; provided that Purchaser may not assign its rights or obligations to any Disqualified Assignee, provided further that a Purchaser may assign any of its rights and obligations to (i) an Affiliate or (ii) Oaktree Capital Management, L.P. or any of its managed funds or accounts, or any Affiliate of the foregoing, without the consent of the Company.
Section 7.05 Indemnification.
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or claims of infringement, violation or misappropriation of any Intellectual Property of any Third Parties) incurred or suffered by a Purchaser Indemnified Party arising out of any breach of any representation, warranty or certification made by the Company in any of the Transaction Documents or any breach of or default under any covenant or agreement by the Company pursuant to any Transaction Document, including any failure by the Company to satisfy any of the Excluded Liabilities and Obligations; provided, however, that the foregoing shall exclude any indemnification to any Purchaser Indemnified Party (i) that results from the gross negligence, bad faith or willful misconduct of such Purchaser Indemnified Party or (ii) to the extent resulting from acts or omissions of the Company based upon and in compliance with the written instructions from such Purchaser Indemnified Party. This Section shall not apply to Taxes other than Taxes relating to a non-Tax claim or Loss governed by this Section 7.05(a).
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shall have mutually agreed to the retention of such counsel, (ii) the indemnifying party has assumed the defense of such proceeding and has failed within a reasonable time to retain counsel reasonably satisfactory to such indemnified party or (iii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential conflicts of interests between them based on the advice of such counsel. It is agreed that the indemnifying party shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees and expenses of more than one separate law firm (in addition to local counsel where necessary) for all such indemnified parties. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding.
Section 7.06 No Implied Representations and Warranties.
Each party acknowledges and agrees that, other than the representations and warranties specifically contained in any of the Transaction Documents, there are no representations or warranties of either party or any other Person either expressed or implied with respect to the Assigned Interests or the transactions contemplated hereby. Without limiting the foregoing, the Purchasers acknowledge and agree that (a) the Purchasers and their Affiliates, together with their and their Affiliates’ representatives, have made their own investigation of the Product and the Product Intellectual Property and are not relying on any implied warranties or upon any
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representation or warranty whatsoever as to the future amount or potential amount of the Assigned Interests or as to the creditworthiness of Company and (b) except as expressly set forth in any representation or warranty in a Transaction Document, the Purchasers shall have no claim or right to indemnification pursuant to Section 7.05 (or otherwise) with respect to any information, documents or materials furnished to the Purchasers, any of their Affiliates, or any of their or their Affiliates’ representatives, including any information, documents or material made available to the Purchasers, their Affiliates and their or their Affiliates’ representatives in any data room, presentation, interview or any other form relating to the transactions contemplated hereby.
Section 7.07 Independent Nature of Relationship.
Section 7.08 Tax Treatment.
The Purchasers and the Company acknowledge and agree that, for U.S. federal and applicable state and local income tax purposes, (i) the Purchasers’ payment of the Purchase Price to the Company and the associated rights and obligations under this Agreement shall be treated as the issuance of a debt instrument (“Tax Debt Instrument”) on the date that the Purchase Price is delivered to the Company, (ii) the Tax Debt Instrument shall be treated as a contingent payment debt instrument that is subject to the rules set forth in Treasury Regulations Section 1.1275-4, (iii) the Purchasers shall not be treated as the owner of the Assigned Interests or any portion thereof, and (iv) none of the payments that the Company makes to the Purchasers hereunder shall be treated as a payment of contingent interest under Section 871(h)(4) of the Internal Revenue Code. The Company shall provide the projected payment schedule for the Tax Debt Instrument to the Administrative Agent as required under Treasury Regulations Section 1.1275-2(e) and Treasury Regulations Section 1.1275-4(b)(4)(iv); provided however that the Company shall consult with, and reasonably consider any comments or proposals made by, the Administrative Agent regarding the projected payment schedule for the Tax Debt Instrument. The parties hereto agree not to take any position that is inconsistent with the provisions of this Section 7.08 on any Tax Return or in any audit or other administrative or judicial proceeding unless (i) the other parties to this Agreement have consented in writing to such actions, which consent shall not be unreasonably withheld or delayed, or (ii) the party that contemplates taking such an inconsistent position has been advised by nationally recognized counsel or accounting firm in writing that it is more likely than not that the inconsistent position is required by applicable law.
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Section 7.09 Entire Agreement.
This Agreement, together with the Exhibits and Schedules hereto (which are incorporated herein by reference), and the other Transaction Documents constitute the entire agreement between the parties with respect to the subject matter hereof and supersede all prior agreements (including the Term Sheet), understandings and negotiations, both written and oral, between the parties with respect to the subject matter of this Agreement. No representation, inducement, promise, understanding, condition or warranty not set forth herein (or in the Exhibits, Schedules or other Transaction Documents) has been made or relied upon by either party hereto. None of this Agreement, nor any provision hereof, is intended to confer upon any Person other than the parties hereto any rights or remedies hereunder.
Section 7.10 Amendments; No Waivers.
Section 7.11 Interpretation.
When a reference is made in this Agreement to Articles, Sections, Schedules or Exhibits, such reference shall be to an Article, Section, Schedule or Exhibit to this Agreement unless otherwise indicated. The words “include”, “includes” and “including” when used herein shall be deemed in each case to be followed by the words “without limitation”. Neither party hereto shall be or be deemed to be the drafter of this Agreement for the purposes of construing this Agreement against one party or the other. Notwithstanding any other provision contained in this Agreement, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein shall be made, without giving effect to any change to GAAP occurring before or after the Closing Date as a result of ASU 2016-02, Leases (Topic 842) issued by the Financial Accounting Standards Board or any other proposals issued by the Financial Accounting Standards Board in connection therewith, in each case if such change would require treating any lease (or similar arrangement conveying the right to use) as a capital lease where such lease (or similar arrangement) was not required to be so treated under GAAP as in effect prior to such change.
Section 7.12 Headings and Captions.
The headings and captions in this Agreement are for convenience and reference purposes only and shall not be considered a part of or affect the construction or interpretation of any provision of this Agreement.
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Section 7.13 Counterparts; Effectiveness.
This Agreement may be executed in two or more counterparts, each of which shall be an original, but all of which together shall constitute one and the same instrument. This Agreement shall become effective when each party hereto shall have received a counterpart hereof signed by the other parties hereto. Any counterpart may be executed by facsimile or pdf signature and such facsimile or pdf signature shall be deemed an original.
Section 7.14 Severability.
If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions shall nevertheless be given full force and effect.
Section 7.15 Expenses.
The Company agrees to pay or reimburse the Purchasers and Administrative Agent for all of its reasonable and documented out of pocket costs and expenses (including the reasonable and documented out of pocket fees, expenses, charges and disbursements of counsel to the Purchasers and Administrative Agent) in connection with the negotiation, preparation, execution and delivery of this Agreement and the other Transaction Documents or any amendments thereto; provided that the amount of such expenses obligated to be paid by the Company through the date hereof (including expenses paid under the Oaktree Term Loan Facility) as set forth in the Term Sheet.
Section 7.16 Governing Law; Jurisdiction.
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Section 7.17 Waiver of Jury Trial.
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Each party hereto hereby irrevocably waives, to the fullest extent permitted by applicable Law, any and all right to trial by jury in any action, proceeding, claim or counterclaim arising out of or relating to any Transaction Document or the transactions contemplated under any Transaction Document. This waiver shall apply to any subsequent amendments, renewals, supplements or modifications to any Transaction Document.
Section 7.18 Release of Liens upon Certain Permitted Financings; Non-Disturbance; Intercreditor.
Section 7.19 Confidentiality.
The Administrative Agent and the Purchasers agree to keep confidential all non-public information provided to it by the Company pursuant to this Agreement; provided that nothing herein shall prevent the Administrative Agent or the Purchasers from disclosing any such information (i) to the Purchasers, any Affiliate of the Purchasers or any other assignee permitted under Section 7.04, (ii) to their and their Affiliates’ respective employees, officers, directors, agents, attorneys, accountants, trustees and other professional advisors (collectively, their “Representatives”), (iii) upon the request or demand of any Governmental Authority purporting to have jurisdiction over such Person or its Representatives (including any self-regulatory authority, such as the National Association of Insurance Commissioners), (iv) in response to any order of any court or other Governmental Authority or as may otherwise be required pursuant to any Law,
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ARTICLE VIII
THE ADMINISTRATIVE AGENT
Section 8.01 Appointments and Duties.
(vii) execute any amendment, consent or waiver under the Transaction Documents on behalf of any Purchaser that has consented in writing to such amendment, consent or waiver; provided that the Administrative Agent hereby appoints, authorizes and directs each Purchaser to act as collateral sub-agent for the Administrative Agent and the Purchasers for purposes of the perfection of all Liens with respect to the Collateral, including any deposit account maintained by the Company, and cash and cash equivalents held by, such Purchaser, and may further authorize and direct the Purchasers to take further actions as collateral sub-agents for purposes of enforcing such Liens or otherwise to transfer the Collateral subject thereto to the Administrative Agent, and each Purchaser hereby agrees to take such further actions to the extent, and only to the extent, so authorized and directed.
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undertaking such role and (iii) subject only to the notice provisions set forth in Section 8.09, may resign from such role at any time for any reason or no reason whatsoever. Without limiting the foregoing, the parties hereto further acknowledge and agree that under the Transaction Documents, the Administrative Agent (i) is acting solely on behalf of the Purchasers (except to the limited extent provided in Section 8.11) with duties that are entirely administrative in nature, notwithstanding the use of the defined term “the Administrative Agent”, the terms “agent”, “administrative agent” and “collateral agent” and similar terms in any Transaction Document to refer to the Administrative Agent, which terms are used for title purposes only, (ii) is not assuming any duty or obligation under any Transaction Document other than as expressly set forth therein or any role as agent, fiduciary or trustee of or for any Purchaser or any other Secured Party and
Section 8.02 Binding Effect.
Each Purchaser agrees that (i) any action taken by the Administrative Agent in accordance with the provisions of the Transaction Documents, (ii) any action taken by the Administrative Agent in reliance upon the instructions of the Purchasers and (iii) the exercise by the Administrative Agent of the powers set forth herein or therein, together with such other powers as are reasonably incidental thereto, shall be authorized and binding upon all of the Secured Parties.
Section 8.03 Use of Discretion.
(i) under any Transaction Document or (ii) pursuant to written instructions from the Majority Purchasers (or, where expressly required by the terms of this Agreement, a greater proportion of the Purchasers).
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any action that may be in violation of the automatic stay in connection with any insolvency or similar proceeding.
Section 8.04 Delegation of Rights and Duties.
The Administrative Agent may, upon any term or condition it specifies, delegate or exercise any of its rights, powers and remedies under, and delegate or perform any of its duties or any other action with respect to, any Transaction Document by or through any trustee, co-agent, employee, attorney-in-fact and any other Person (including any Secured Party). The Administrative Agent and any such Person may perform any and all of its duties and exercise its rights and powers by or through their respective Affiliates. Any such Person and its Affiliates shall benefit from this Article VIII to the extent provided by the Administrative Agent; provided, however, that the exculpatory provisions of this Article VIII shall apply to any such sub-agent and to the Affiliates of the Administrative Agent and of any such sub-agent, and shall apply to their respective activities in connection with their activities as Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non-appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents.
Section 8.05 Liability.
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than employees, officers and directors of the Administrative Agent, when acting on behalf of the Administrative Agent);
and, for each of the items set forth in clauses (i) through (iv) above, each Purchaser and the Company hereby waives and agrees not to assert any right, claim or cause of action it might have against the Administrative Agent based thereon.
Section 8.06 Administrative Agent Individually.
The Administrative Agent and its Affiliates may make loans and other extensions of credit to, acquire stock and stock equivalents of, accept deposits from, act as the financial advisor for or in any other advisory capacity for, or engage in any kind of business with, the Company or its Subsidiaries as though it were not acting as the Administrative Agent and may receive separate fees and other payments therefor. To the extent the Administrative Agent or any of its Affiliates makes any Purchase or otherwise becomes a Purchaser hereunder, it shall have and may exercise the same rights and powers hereunder and shall be subject to the same obligations and liabilities as any other Purchaser and the term “Purchaser” and any similar terms shall, except where otherwise expressly provided in any Transaction Document, include, without limitation, the Administrative Agent or such Affiliate, as the case may be, in its individual capacity as Purchaser.
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Section 8.07 Purchaser Credit Decision.
Each Purchaser acknowledges that it has, independently and without reliance upon the Administrative Agent, any Purchaser or any of their Affiliates or upon any document solely or in part because such document was transmitted by the Administrative Agent or any of its Affiliates, conducted its own independent investigation of the financial condition and affairs of the Company and has made and continues to make its own credit decisions in connection with entering into, and taking or not taking any action under, any Transaction Document or with respect to any transaction contemplated in any Transaction Document, in each case based on such documents and information as it shall deem appropriate.
Section 8.08 Expenses; Indemnities.
Section 8.09 Resignation of the Administrative Agent.
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a successor, which shall be (i) a Purchaser having at least a thirty percent (30%) Proportionate Share of the Purchase Price or any Affiliate thereof or (ii) any other financial institution consented to by the Company (provided that the consent of the Company shall not be required to the extent a Put Option Event has occurred and is continuing). If a successor Administrative Agent has not been appointed on or before the effectiveness of the resignation of the resigning Administrative Agent (or such earlier date as shall be agreed by the Majority Purchasers) (the “Resignation Effective Date”), then the resigning Administrative Agent may (but shall not be obligated to), on behalf of the Purchasers, appoint any Person reasonably chosen by it as the successor Administrative Agent, notwithstanding whether the Majority Xxxxxxxxxx have appointed a successor or the Company has consented to such successor. Whether or not a successor has been appointed, such resignation shall become effective on the Resignation Effective Date.
Section 8.10 Release of Collateral.
8.10 that is in possession of the Administrative Agent.
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Section 8.11 Additional Secured Parties.
The benefit of the provisions of the Transaction Documents directly relating to the Collateral or any Lien granted thereunder shall extend to and be available to any Secured Party that is not a Purchaser as long as, by accepting such benefits, such Secured Party agrees, as among the Administrative Agent and all other Secured Parties, that such Secured Party is bound by (and, if requested by the Administrative Agent, shall confirm such agreement in a writing in form and substance acceptable to the Administrative Agent) this Article VIII and the decisions and actions of the Administrative Agent and the Purchasers to the same extent a Purchaser is bound; provided that, notwithstanding the foregoing, (i) such Secured Party shall be bound by Section 8.08 only to the extent of liabilities, costs and expenses with respect to or otherwise relating to the Collateral held for the benefit of such Secured Party, in which case the obligations of such Secured Party thereunder shall not be limited by any concept of pro rata share or similar concept, (ii) each of the Administrative Agent and each Purchaser shall be entitled to act at its sole discretion, without regard to the interest of such Secured Party, regardless of whether any Obligation to such Secured Party thereafter remains outstanding, is deprived of the benefit of the Collateral, becomes unsecured or is otherwise affected or put in jeopardy thereby, and without any duty or liability to such Secured Party or any such Obligation and (iii) such Secured Party shall not have any right to be notified of, consent to, direct, require or be heard with respect to, any action taken or omitted in respect of the Collateral or under any Transaction Document.
Section 8.12 Agent May File Proofs of Claim.
In case of the pendency of any insolvency or similar proceeding or any other judicial proceeding relating to the Company, the Administrative Agent (irrespective of whether any payments under this Agreement shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on the Company) shall be entitled and empowered (but not obligated) by intervention or such proceeding or otherwise:
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Purchaser to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Purchasers, to pay to the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its agents and counsel.
Section 8.13 [Reserved].
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Section 8.14 Acknowledgements of Purchasers.
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otherwise payable or distributable by the Administrative Agent to such Purchaser from any source, against any amount due to the Administrative Agent under Section 8.14(a) or under the indemnification provisions of this Agreement.
(ii) the Administrative Agent as the assignee Purchaser shall be deemed to acquire the Erroneous Payment Deficiency Assignment, (iii) upon such deemed acquisition, the Administrative Agent as the assignee Purchaser shall become a Purchaser hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Purchaser shall cease to be a Purchaser hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and
(iv) the Administrative Agent may reflect in the Register its ownership interest in the Assigned Interests subject to the Erroneous Payment Deficiency Assignment. The Administrative Agent may, in its discretion, sell any Assigned Interests acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Purchaser shall be reduced by the net proceeds of the sale of such Assigned Interests (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Purchaser (and/or against any recipient that receives funds on its respective behalf). In addition, each party hereto agrees that, except to the extent that the Administrative Agent has sold an Assigned Interests (or portion thereof) acquired pursuant to an Erroneous Payment Deficiency Assignment, and irrespective of whether the Administrative Agent may be equitably subrogated, the Administrative Agent shall be contractually subrogated to all the rights and interests of the applicable Purchaser under the Transaction Documents with respect to each Erroneous Payment Return Deficiency (the “Erroneous Payment Subrogation Rights”).
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counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by the Administrative Agent for the return of any Erroneous Payment received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the date first above written.
COMPANY:
IMPEL NEUROPHARMA, INC.
Name: Xxxx Xxxxxx
Title: Chief Financial Officer
[Signature Page to Revenue Interest Financing Agreement]
DocuSign Envelope ID: 47B82C5F-E676-4F07-A1B9-C519C8E902F2
ADMINISTRATIVE AGENT:
OAKTREE FUND ADMINISTRATION, LLC
By: Oaktree Capital Management, L.P. Its: Managing Member
By:
[Signature Page to Revenue Interest Financing Agreement]
DocuSign Envelope ID: 47B82C5F-E676-4F07-A1B9-C519C8E902F2
By:
[Signature Page to Revenue Interest Financing Agreement]
DocuSign Envelope ID: 47B82C5F-E676-4F07-A1B9-C519C8E902F2
Name: Xxxxxxx Xxxxxxxx
Title:
Vice PresidentName: Title:
[Signature Page to Revenue Interest Financing Agreement]
DocuSign Envelope ID: 47B82C5F-E676-4F07-A1B9-C519C8E902F2
Xxxxx Xxxxx
Senior Vice President
[Signature Page to Revenue Interest Financing Agreement]
DocuSign Envelope ID: 47B82C5F-E676-4F07-A1B9-C519C8E902F2
LENDERS:
OAKTREE-TCDRS STRATEGIC CREDIT, LLC
By: Oaktree Capital Management, L.P. Its: Manager
By:
[Signature Page to Revenue Interest Financing Agreement]
DocuSign Envelope ID: 47B82C5F-E676-4F07-A1B9-C519C8E902F2
By:
[Signature Page to Revenue Interest Financing Agreement]
DocuSign Envelope ID: 47B82C5F-E676-4F07-A1B9-C519C8E902F2
Name: Title:
Name: Title:
[Signature Page to Revenue Interest Financing Agreement]
DocuSign Envelope ID: 47B82C5F-E676-4F07-A1B9-C519C8E902F2
Xxxxxxx Xxxxxxxx Vice President
[Signature Page to Revenue Interest Financing Agreement]
DocuSign Envelope ID: 47B82C5F-E676-4F07-A1B9-C519C8E902F2
Xxxxx Xxxxx
Senior Vice President
[Signature Page to Revenue Interest Financing Agreement]
DocuSign Envelope ID: 47B82C5F-E676-4F07-A1B9-C519C8E902F2
OAKTREE-XXXXXXX MULTI-STRATEGY, LLC
By: Oaktree Capital Management, L.P. Its: Manager
By:
[Signature Page to Revenue Interest Financing Agreement]
DocuSign Envelope ID: 47B82C5F-E676-4F07-A1B9-C519C8E902F2
By:
[Signature Page to Revenue Interest Financing Agreement]
DocuSign Envelope ID: 47B82C5F-E676-4F07-A1B9-C519C8E902F2
Name: Xxxxxxx Xxxxxxxx
Title:
Vice PresidentName: Title:
[Signature Page to Revenue Interest Financing Agreement]
DocuSign Envelope ID: 47B82C5F-E676-4F07-A1B9-C519C8E902F2
Xxxxx Xxxxx
Senior Vice President
[Signature Page to Revenue Interest Financing Agreement]
DocuSign Envelope ID: 47B82C5F-E676-4F07-A1B9-C519C8E902F2
OAKTREE-TMBR STRATEGIC CREDIT FUND C, LLC
By: Oaktree Capital Management, L.P. Its: Manager
By:
[Signature Page to Revenue Interest Financing Agreement]
DocuSign Envelope ID: 47B82C5F-E676-4F07-A1B9-C519C8E902F2
By:
[Signature Page to Revenue Interest Financing Agreement]
DocuSign Envelope ID: 47B82C5F-E676-4F07-A1B9-C519C8E902F2
Name: Title:
Xxxxxxx Xxxxxxxx Vice PresidentName: Title:
[Signature Page to Revenue Interest Financing Agreement]
DocuSign Envelope ID: 47B82C5F-E676-4F07-A1B9-C519C8E902F2
Xxxxx Xxxxx
Senior Vice President
[Signature Page to Revenue Interest Financing Agreement]
DocuSign Envelope ID: 47B82C5F-E676-4F07-A1B9-C519C8E902F2
OAKTREE-TMBR STRATEGIC CREDIT FUND F, LLC
By: Oaktree Capital Management, L.P. Its: Manager
[Signature Page to Revenue Interest Financing Agreement]
DocuSign Envelope ID: 47B82C5F-E676-4F07-A1B9-C519C8E902F2
By:
[Signature Page to Revenue Interest Financing Agreement]
DocuSign Envelope ID: 47B82C5F-E676-4F07-A1B9-C519C8E902F2
Name:Xxxxxxx Xxxxxxxx
Title: Vice President
[Signature Page to Revenue Interest Financing Agreement]
DocuSign Envelope ID: 47B82C5F-E676-4F07-A1B9-C519C8E902F2
By:
[Signature Page to Revenue Interest Financing Agreement]
DocuSign Envelope ID: 47B82C5F-E676-4F07-A1B9-C519C8E902F2
Name: Title:
[Signature Page to Revenue Interest Financing Agreement]
DocuSign Envelope ID: 47B82C5F-E676-4F07-A1B9-C519C8E902F2
Xxxxx Xxxxx
Senior Vice President
[Signature Page to Revenue Interest Financing Agreement]
DocuSign Envelope ID: 47B82C5F-E676-4F07-A1B9-C519C8E902F2
OAKTREE-TMBR STRATEGIC CREDIT FUND G, LLC
By: Oaktree Capital Management, L.P. Its: Manager
Name: Title:
Xxxxxxx Xxxxxxxx Vice PresidentBy:
[Signature Page to Revenue Interest Financing Agreement]
DocuSign Envelope ID: 47B82C5F-E676-4F07-A1B9-C519C8E902F2
By:
[Signature Page to Revenue Interest Financing Agreement]
DocuSign Envelope ID: 47B82C5F-E676-4F07-A1B9-C519C8E902F2
Name: Title:
[Signature Page to Revenue Interest Financing Agreement]
DocuSign Envelope ID: 47B82C5F-E676-4F07-A1B9-C519C8E902F2
Xxxxx Xxxxx
Senior Vice President
[Signature Page to Revenue Interest Financing Agreement]
DocuSign Envelope ID: 47B82C5F-E676-4F07-A1B9-C519C8E902F2
OAKTREE-TSE 16 STRATEGIC CREDIT, LLC
By: Oaktree Capital Management, L.P. Its: Manager
By:
[Signature Page to Revenue Interest Financing Agreement]
DocuSign Envelope ID: 47B82C5F-E676-4F07-A1B9-C519C8E902F2
By:
[Signature Page to Revenue Interest Financing Agreement]
DocuSign Envelope ID: 47B82C5F-E676-4F07-A1B9-C519C8E902F2
Name: Xxxxxxx Xxxxxxxx
Title:
Vice PresidentName: Title:
[Signature Page to Revenue Interest Financing Agreement]
DocuSign Envelope ID: 47B82C5F-E676-4F07-A1B9-C519C8E902F2
Xxxxx Xxxxx
Senior Vice President
[Signature Page to Revenue Interest Financing Agreement]
DocuSign Envelope ID: 47B82C5F-E676-4F07-A1B9-C519C8E902F2
INPRS STRATEGIC CREDIT HOLDINGS, LLC
By: Oaktree Capital Management, L.P. Its: Manager
By:
[Signature Page to Revenue Interest Financing Agreement]
DocuSign Envelope ID: 47B82C5F-E676-4F07-A1B9-C519C8E902F2
By:
[Signature Page to Revenue Interest Financing Agreement]
DocuSign Envelope ID: 47B82C5F-E676-4F07-A1B9-C519C8E902F2
Name: Title:
Xxxxxxx Xxxxxxxx Vice PresidentName: Title:
[Signature Page to Revenue Interest Financing Agreement]
DocuSign Envelope ID: 47B82C5F-E676-4F07-A1B9-C519C8E902F2
Xxxxx Xxxxx
Senior Vice President
[Signature Page to Revenue Interest Financing Agreement]
DocuSign Envelope ID: 47B82C5F-E676-4F07-A1B9-C519C8E902F2
OAKTREE GILEAD INVESTMENT FUND AIF (DELAWARE), L.P.
By: Oaktree Fund AIF Series, L.P. – Series T Its: General Partner
By: Oaktree Fund GP AIF, LLC Its: Managing Member
By: Oaktree Fund GP III, L.P. Its: General Partner
By:
[Signature Page to Revenue Interest Financing Agreement]
DocuSign Envelope ID: 47B82C5F-E676-4F07-A1B9-C519C8E902F2
By:
[Signature Page to Revenue Interest Financing Agreement]
DocuSign Envelope ID: 47B82C5F-E676-4F07-A1B9-C519C8E902F2
Name: Xxxxxxx Xxxxxxxx
Title:
Authorized SignatoryName: Title:
[Signature Page to Revenue Interest Financing Agreement]
DocuSign Envelope ID: 47B82C5F-E676-4F07-A1B9-C519C8E902F2
Xxxxx Xxxxx Authorized Signatory
[Signature Page to Revenue Interest Financing Agreement]
DocuSign Envelope ID: 47B82C5F-E676-4F07-A1B9-C519C8E902F2
OAKTREE STRATEGIC INCOME II, INC.
By: Oaktree Fund Advisors, LLC Its: Investment Advisor
By:
[Signature Page to Revenue Interest Financing Agreement]
DocuSign Envelope ID: 47B82C5F-E676-4F07-A1B9-C519C8E902F2
By:
[Signature Page to Revenue Interest Financing Agreement]
DocuSign Envelope ID: 47B82C5F-E676-4F07-A1B9-C519C8E902F2
Name: Xxxxxxx Xxxxxxxx
Title:
Vice PresidentName: Title:
[Signature Page to Revenue Interest Financing Agreement]
DocuSign Envelope ID: 47B82C5F-E676-4F07-A1B9-C519C8E902F2
Xxxxx Xxxxx
Senior Vice President
[Signature Page to Revenue Interest Financing Agreement]
DocuSign Envelope ID: 47B82C5F-E676-4F07-A1B9-C519C8E902F2
OAKTREE SPECIALTY LENDING CORPORATION
By: Oaktree Fund Advisors, LLC Its: Investment Adviser
By:
[Signature Page to Revenue Interest Financing Agreement]
DocuSign Envelope ID: 47B82C5F-E676-4F07-A1B9-C519C8E902F2
By:
[Signature Page to Revenue Interest Financing Agreement]
DocuSign Envelope ID: 47B82C5F-E676-4F07-A1B9-C519C8E902F2
Name: Title:
Xxxxxxx Xxxxxxxx Vice PresidentName: Title:
[Signature Page to Revenue Interest Financing Agreement]
DocuSign Envelope ID: 47B82C5F-E676-4F07-A1B9-C519C8E902F2
Xxxxx Xxxxx
Senior Vice President
[Signature Page to Revenue Interest Financing Agreement]
DocuSign Envelope ID: 47B82C5F-E676-4F07-A1B9-C519C8E902F2
OAKTREE STRATEGIC CREDIT FUND
By: Oaktree Fund Advisors, LLC Its: Investment Advisor
By:
[Signature Page to Revenue Interest Financing Agreement]
DocuSign Envelope ID: 47B82C5F-E676-4F07-A1B9-C519C8E902F2
By:
[Signature Page to Revenue Interest Financing Agreement]
DocuSign Envelope ID: 47B82C5F-E676-4F07-A1B9-C519C8E902F2
Name: Xxxxxxx Xxxxxxxx
Title:
Vice PresidentName: Title:
[Signature Page to Revenue Interest Financing Agreement]
DocuSign Envelope ID: 47B82C5F-E676-4F07-A1B9-C519C8E902F2
Xxxxx Xxxxx
Senior Vice President
[Signature Page to Revenue Interest Financing Agreement]
DocuSign Envelope ID: 47B82C5F-E676-4F07-A1B9-C519C8E902F2
OAKTREE GCP FUND DELAWARE HOLDINGS, L.P.
By: Oaktree Global Credit Plus Fund GP, L.P. Its: General Partner
By: Oaktree Global Credit Plus Fund GP Ltd.
Its: General Partner
By: Oaktree Capital Management, L.P. Its: Director
By:
[Signature Page to Revenue Interest Financing Agreement]
DocuSign Envelope ID: 47B82C5F-E676-4F07-A1B9-C519C8E902F2
By:
[Signature Page to Revenue Interest Financing Agreement]
DocuSign Envelope ID: 47B82C5F-E676-4F07-A1B9-C519C8E902F2
Name: Title:
Xxxxxxx Xxxxxxxx Vice PresidentName: Title:
[Signature Page to Revenue Interest Financing Agreement]
DocuSign Envelope ID: 47B82C5F-E676-4F07-A1B9-C519C8E902F2
Xxxxx Xxxxx
Senior Vice President
[Signature Page to Revenue Interest Financing Agreement]
DocuSign Envelope ID: 47B82C5F-E676-4F07-A1B9-C519C8E902F2
OAKTREE DIVERSIFIED INCOME FUND INC.
By: Oaktree Fund Advisors, LLC Its: Investment Advisor
By:
[Signature Page to Revenue Interest Financing Agreement]
DocuSign Envelope ID: 47B82C5F-E676-4F07-A1B9-C519C8E902F2
By:
[Signature Page to Revenue Interest Financing Agreement]
DocuSign Envelope ID: 47B82C5F-E676-4F07-A1B9-C519C8E902F2
Name: Xxxxxxx Xxxxxxxx
Title: Vice PresidentName: Title:
[Signature Page to Revenue Interest Financing Agreement]
DocuSign Envelope ID: 47B82C5F-E676-4F07-A1B9-C519C8E902F2
Xxxxx Xxxxx
Senior Vice President
[Signature Page to Revenue Interest Financing Agreement]
DocuSign Envelope ID: 47B82C5F-E676-4F07-A1B9-C519C8E902F2
OAKTREE AZ STRATEGIC LENDING FUND, L.P.
By: Oaktree AZ Strategic Lending Fund GP, L.P. Its: General Partner
By: Oaktree Fund GP IIA, LLC Its: General Partner
By: Oaktree Fund XX XX, L.P. Its: Managing Member
By:
[Signature Page to Revenue Interest Financing Agreement]
DocuSign Envelope ID: 47B82C5F-E676-4F07-A1B9-C519C8E902F2
By:
[Signature Page to Revenue Interest Financing Agreement]
DocuSign Envelope ID: 47B82C5F-E676-4F07-A1B9-C519C8E902F2
Name: Xxxxxxx Xxxxxxxx
Title: Authorized SignatoryName: Title:
[Signature Page to Revenue Interest Financing Agreement]
DocuSign Envelope ID: 47B82C5F-E676-4F07-A1B9-C519C8E902F2
Xxxxx Xxxxx Authorized Signatory
[Signature Page to Revenue Interest Financing Agreement]
DocuSign Envelope ID: 47B82C5F-E676-4F07-A1B9-C519C8E902F2
OAKTREE LOAN ACQUISITION FUND, L.P.
By: Oaktree Fund GP IIA, LLC Its: General Partner
By: Oaktree Fund XX XX, L.P. Its: Managing Member
By:
[Signature Page to Revenue Interest Financing Agreement]
DocuSign Envelope ID: 47B82C5F-E676-4F07-A1B9-C519C8E902F2
By:
[Signature Page to Revenue Interest Financing Agreement]
DocuSign Envelope ID: 47B82C5F-E676-4F07-A1B9-C519C8E902F2
Name: Xxxxxxx Xxxxxxxx
Title:
Authorized SignatoryName: Title:
[Signature Page to Revenue Interest Financing Agreement]
DocuSign Envelope ID: 47B82C5F-E676-4F07-A1B9-C519C8E902F2
Xxxxx Xxxxx Authorized Signatory
[Signature Page to Revenue Interest Financing Agreement]
DocuSign Envelope ID: 47B82C5F-E676-4F07-A1B9-C519C8E902F2
OAKTREE LSL FUND DELAWARE HOLDINGS EURRC, L.P.
By: Oaktree Life Sciences Lending Fund, L.P. Its: General Partner
By: Oaktree Life Sciences Lending Fund GP Ltd. Its: General Partner
By:
[Signature Page to Revenue Interest Financing Agreement]
DocuSign Envelope ID: 47B82C5F-E676-4F07-A1B9-C519C8E902F2
By:
[Signature Page to Revenue Interest Financing Agreement]
DocuSign Envelope ID: 47B82C5F-E676-4F07-A1B9-C519C8E902F2
Name: Xxxxxxx Xxxxxxxx
Title: Vice PresidentName: Title:
[Signature Page to Revenue Interest Financing Agreement]
DocuSign Envelope ID: 47B82C5F-E676-4F07-A1B9-C519C8E902F2
Xxxxx Xxxxx
Senior Vice President
[Signature Page to Revenue Interest Financing Agreement]
DocuSign Envelope ID: 47B82C5F-E676-4F07-A1B9-C519C8E902F2
OAKTREE PRE LIFE SCIENCES FUND, L.P.
By: Oaktree Pre Life Sciences Fund GP, L.P. Its: General Partner
By: Oaktree Fund GP IIA, LLC Its: General Partner
By: Oaktree Fund XX XX, L.P. Its: Managing Member
By:
[Signature Page to Revenue Interest Financing Agreement]
DocuSign Envelope ID: 47B82C5F-E676-4F07-A1B9-C519C8E902F2
By:
[Signature Page to Revenue Interest Financing Agreement]
DocuSign Envelope ID: 47B82C5F-E676-4F07-A1B9-C519C8E902F2
Name: Xxxxxxx Xxxxxxxx
Title:
Authorized SignatoryName: Title:
[Signature Page to Revenue Interest Financing Agreement]
DocuSign Envelope ID: 47B82C5F-E676-4F07-A1B9-C519C8E902F2
Xxxxx Xxxxx Authorized Signatory
[Signature Page to Revenue Interest Financing Agreement]
Schedule 1 Commitment Schedule
Purchaser |
Applicable Commitment |
Oaktree-TCDRS Strategic Credit, LLC |
$548,000 |
Oaktree-Xxxxxxx Multi-Strategy, LLC |
$443,000 |
Oaktree-TBMR Strategic Credit Fund C, LLC |
$266,500 |
Oaktree-TBMR Strategic Credit Fund F, LLC |
$417,500 |
Oaktree-TBMR Strategic Credit Fund G, LLC |
$681,500 |
Oaktree-TSE 16 Strategic Credit, LLC |
$686,000 |
INPRS Strategic Credit Holdings, LLC |
$203,000 |
Oaktree Gilead Investment Fund AIF (Delaware), L.P. |
$3,433,500 |
Oaktree Strategic Income II, Inc. |
$948,500 |
Oaktree Specialty Lending Corporation |
$12,160,500 |
Oaktree Strategic Credit Fund |
$4,767,500 |
Oaktree GCP Fund Delaware Holdings, L.P. |
$305,000 |
Oaktree Diversified Income Fund Inc. |
$1,001,000 |
Oaktree AZ Strategic Lending Fund, L.P. |
$6,521,500 |
Oaktree Loan Acquisition Fund, L.P. |
$9,534,500 |
Oaktree LSL Fund Delaware Holdings EURRC, L.P. |
$3,814,000 |
Oaktree PRE Life Sciences Fund, L.P. |
$4,268,500 |
Total Commitment |
$50,000,000 |
4895-2136-9357 v.12
None.
26923/00604/FW/15598014.1
Schedule 3.04(a) Ownership – Permitted Liens
26923/00604/FW/15598014.1
None.
26923/00604/FW/15598014.1
Schedule 3.04(b)
Ownership – Included Product Revenues and Ex-U.S. Royalties
26923/00604/FW/15598014.1
None.
26923/00604/FW/15598014.1
Schedule 3.08 Litigation
26923/00604/FW/15598014.1
None.
26923/00604/FW/15598014.1
Schedule 3.12(a) Intellectual Property
26923/00604/FW/15598014.1
None.
26923/00604/FW/15598014.1
Schedule 3.12(b) Product Patents
26923/00604/FW/15598014.1
Schedule 3.13(c) Regulatory Approval
None.
26923/00604/FW/15598014.1
Exhibit A
Form of Security Agreement
[See attached.]
4895-2136-9357 v.12
Execution Version
SECURITY AGREEMENT
by and between
IMPEL NEUROPHARMA, INC.,
a Delaware corporation and
OAKTREE FUND ADMINISTRATION, LLC,
as Administrative Agent for the Purchasers referred to below (in such capacity, together with its successors and assigns, the “Administrative Agent”).
Dated as of March 17, 2022
4895-8857-8573 v.6
TABLE OF CONTENTS
Page
SECTION 1 DEFINITIONS; INTERPRETATION 3
SECTION 2 SECURITY INTEREST 6
SECTION 3 PERFECTION AND PRIORITY 6
SECTION 4 REPRESENTATIONS AND WARRANTIES 8
SECTION 5 COVENANTS 9
SECTION 6 AUTHORIZATION; APPOINTMENT OF ATTORNEY-IN-FACT 11
SECTION 7 SECURED PARTY PERFORMANCE OF GRANTOR OBLIGATIONS 13
SECTION 8 SECURED PARTY’S DUTIES 13
SECTION 9 REMEDIES 13
SECTION 10 CERTAIN WAIVERS 16
SECTION 11 NOTICES 17
SECTION 12 NO WAIVER; CUMULATIVE REMEDIES 17
SECTION 13 BINDING EFFECT 18
SECTION 14 GOVERNING LAW; JURISDICTION; WAIVER OF JURY TRIAL 18
SECTION 15 ENTIRE AGREEMENT; AMENDMENT 18
SECTION 16 SEVERABILITY 18
SECTION 17 COUNTERPARTS; EFFECTIVENESS 18
SECTION 18 INCORPORATION OF PROVISIONS OF THE RIFA 18
SECTION 19 NO INCONSISTENT REQUIREMENTS 18
SECTION 20 TERMINATION 18
SECTION 21 RIGHT OF SET-OFF 19
SECTION 22 INTERCREDITOR AGREEMENT 19
4895-8857-8573 v.6
SECURITY AGREEMENT
THIS SECURITY AGREEMENT (this “Agreement”), dated as of March 17, 2022, is made by and between Impel NeuroPharma, Inc., a Delaware corporation (the “Grantor”) and Oaktree Fund Administration, LLC, as administrative agent for the Lenders referred to below (in such capacity, together with its successors and assigns, the “Administrative Agent”).
WHEREAS, the Grantor and the Administrative Agent are parties to that certain Revenue Interest Financing Agreement, dated as of March 17, 2022 (as amended, restated, supplemented or otherwise modified from time to time, the “RIFA”);
WHEREAS, the RIFA provides that Xxxxxxx has agreed to assign to the Administrative Agent, and the Administrative Agent has agreed to acquire from Grantor, the Assigned Interests (as defined in the RIFA); and
WHEREAS, Xxxxxxx has agreed pursuant to the terms of the RIFA to enter into this Agreement, under which the Grantor grants to the Administrative Agent a valid continuing, perfected lien on, and security interest in, the Collateral (as defined below) as security for the due performance and payment of all of Grantor’s obligations to the Administrative Agent under the RIFA;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1 Definitions; Interpretation.
“Administrative Agent Priority Collateral” means, at any date of determination, the portion of Rights to Payment equal to the Applicable Percentage and/or the Ex-U.S. Royalty Percentage, as applicable.
“Books” means all books, records and other written, electronic or other documentation in whatever form maintained now or hereafter by or for Grantor, in each case solely to the extent such material evidences or contains information relating to the Collateral, including:
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“Collateral” has the meaning set forth in Section 2.
“Excluded Asset” means with respect to clause (ii) of the definition of Collateral:
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provided that the Proceeds of any Excluded Assets shall not constitute Excluded Assets and shall be subject to the Security Interest.
“Intellectual Property Security Agreement” means each Copyright Security Agreement in substantially the form of Exhibit A, each Trademark Security Agreement in substantially the form of Exhibit B, each Patent Security Agreement in substantially the form of Exhibit C or any amendment thereto and prepared for purposes of recordation with the U.S. Copyright Office or the U.S. Patent and Trademark Office, as applicable.
“Intercreditor Agreement” means that certain Intercreditor Agreement, dated as of the date hereof, between the Administrative Agent and the administrative agent of the Oaktree Term Loan Facility and acknowledged by the Grantor, and any other successor intercreditor agreement entered into by the Administrative Agent pursuant to Section 22.
“NY UCC” means the Uniform Commercial Code as from time to time in effect in the State of New York; provided that if by reason of mandatory provisions of law, the perfection, the effect of perfection or non-perfection or the priority of the Security Interest in any portion of the Collateral is governed by the Uniform Commercial Code as in effect in a jurisdiction in the United States other than New York, “NY UCC” shall mean the Uniform Commercial Code as in effect in such other jurisdictions for purposes of the provisions hereto relating to such perfection, effect of perfection or non-perfection or priority with respect to such Collateral.
“Oaktree” means any Purchaser that is an Affiliate or managed fund or account of Oaktree Capital Management, L.P.
“Product Intellectual Property Collateral” means all Intellectual Property that is claiming or covering (i) the Product itself or (ii) any method of using, making or manufacturing the Product, including any Regulatory Approvals in connection therewith. Notwithstanding the foregoing, Product Intellectual Property Collateral excludes any Excluded Asset.
“Rights to Payment” means any and all of Grantor’s Accounts that constitute Collateral and any and all of Grantor’s rights and claims to the payment or receipt of money or other forms of consideration of any kind in, to and under or with respect to such Accounts.
“Secured Obligations” means all Obligations (as defined in the RIFA) other than inchoate indemnification and expense reimbursement obligations for which no claim has been made.
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SECTION 2 Security Interest.
SECTION 3 Perfection and Priority.
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naming Grantor as debtor and the Administrative Agent as secured party. Grantor shall execute and deliver to the Administrative Agent, and Grantor hereby authorizes the Administrative Agent to file, at any time and from time to time, all amendments to financing statements, continuation financing statements, termination statements, Intellectual Property Security Agreements, assignments, affidavits, reports, notices and all other documents and instruments, in form reasonably satisfactory to the Administrative Agent, as the Administrative Agent may reasonably request in writing, to perfect and continue perfected, maintain the priority of or provide notice of the Administrative Agent’s security interest in the Collateral and to accomplish the purposes of this Agreement. Without limiting the generality of the foregoing, Grantor shall from time to time take the actions specified in clause (b) through (e) below.
(ii) Following the creation or other acquisition of any Product Intellectual Property Collateral by Grantor after the date hereof which is registered or becomes registered or the subject of an application for registration with the U.S. Copyright Office or the
U.S. Patent and Trademark Office, as applicable, Grantor shall include details of such newly created or acquired Product Intellectual Property Collateral on the next Quarterly Report provided under Section 5.01(f) of the RIFA, and take actions as the Administrative Agent may reasonably request in writing to perfect the Administrative Agent’s security interest in such U.S. Product Intellectual Property Collateral.
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SECTION 4 Representations and Warranties. Grantor represents and warrants to each Secured Party as of the date of this Agreement that:
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at the time Grantor acquires any such rights, in each case, subject to Permitted Liens and securing the payment and performance of the Secured Obligations.
SECTION 5 Covenants. So long as any of the Secured Obligations remain unsatisfied, Xxxxxxx agrees that:
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are otherwise permitted by the Transaction Documents and that Grantor shall not change its jurisdiction of organization to a jurisdiction outside of the United States.
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SECTION 6 Authorization; Appointment of Attorney-in-Fact. In addition to (and not in limitation of) any other right or remedy provided to the Administrative Agent hereunder, the Administrative Agent shall have the right to, in the name of Grantor, or in the name of the Administrative Agent or otherwise, without notice to or assent by Xxxxxxx, and Grantor hereby constitutes and appoints the Administrative Agent (and any of the Administrative Agent’s officers or employees or agents designated by the Administrative Agent) as Grantor’s true and lawful attorney-in-fact, with full power and authority to:
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Collateral;
address for delivery of mail addressed to Grantor to such address as the Administrative Agent may designate; and, without limiting the generality of the foregoing, establish with any Person lockbox or similar arrangements for the payment of the Rights to Payment;
Collateral;
customers or other obligors of Grantor;
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The Administrative Agent agrees that, except upon the occurrence and during the continuation of a Put Option Event, it shall not exercise the power of attorney, or any rights granted to the Administrative Agent, pursuant to clauses (b) through (o). The foregoing power of attorney is coupled with an interest and irrevocable so long as the Secured Obligations have not been paid and performed in full. Grantor hereby ratifies, to the extent permitted by applicable law, all that the Administrative Agent shall lawfully and in good faith do or cause to be done by virtue of and in compliance with this Section 6.
SECTION 7 Secured Party Performance of Grantor Obligations. Upon the occurrence and continuation of a Put Option Event, the Administrative Agent shall have the right (but not any obligation) to perform or pay any obligation which Grantor has agreed to perform or pay under or in connection with this Agreement, and Grantor shall reimburse the Administrative Agent on demand for all reasonable and documented out of pocket costs and expenses by the Administrative Agent pursuant to this Section 7.
SECTION 8 Secured Party’s Duties. Notwithstanding any provision contained in this Agreement, the Administrative Agent shall have no duty to exercise any of the rights, privileges or powers afforded to it and shall not be responsible to Grantor or any other Person for any failure to do so or delay in doing so. Without limiting the generality of the foregoing, nothing herein contained shall be construed as requiring or obligating the Administrative Agent to make any commitment or to make any inquiry as to the nature of sufficiency of any payment received by the Administrative Agent, or to present or file any claim or notice, or to take any action with respect to the Collateral or any part thereof or the moneys due or to become due in respect thereof or any property covered thereby. The Administrative Agent and its officers, directors, employees, agents or sub-agents shall have no duty or liability to exercise or preserve any rights, privileges or powers pertaining to the Collateral.
SECTION 9 Remedies.
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remedies of a secured party under the NY UCC and other applicable law. Without limiting the generality of the foregoing, Xxxxxxx agrees that:
The Administrative Agent shall give each applicable Grantor not less than ten (10) days’ written notice (which Grantor agrees is reasonable notice within the meaning of Section 9-611 of the NY UCC or its equivalent in other jurisdictions) of the Agent’s intention to make any sale of Collateral. Such notice, in the case of a public sale, shall state the time and place for such sale and, in the case of a sale at a broker’s board or on a securities exchange, shall state the board or exchange at which such sale is to be made and the day on which the Collateral, or portion thereof, will first be offered for sale at such board or exchange. Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Administrative Agent may fix and state
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in the notice (if any) of such sale. At any such sale, the Collateral, or portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, and by the Administrative Agent in its own right or by one or more agents or contractors, upon any premises owned, leased or occupied by Grantor, the Administrative Agent or any such agent or contractor, and any such sale may include any other property, in each case, as the Administrative Agent may (in its sole and absolute discretion) determine. The Administrative Agent shall not be obligated to make any sale of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale of such Collateral shall have been given. The Administrative Agent may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. In case any sale of all or any part of the Collateral is made on credit or for future delivery, the Collateral so sold may be retained by the Administrative Agent until the sale price is paid by the purchaser or purchasers thereof, but the Administrative Agent shall not incur any liability in case any such purchaser or purchasers shall fail to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may be sold again upon like notice. At any public (or, to the extent permitted by law, private) sale made pursuant to this Agreement, any Secured Party may bid for or purchase, free (to the extent permitted by applicable law) from any right of redemption, stay, valuation or appraisal on the part of Grantor (all said rights being also hereby waived and released to the extent permitted by applicable law), the Collateral or any part thereof offered for sale and may make payment on account thereof by using any claim then due and payable to such Secured Party from Grantor as a credit against the purchase price, and such Secured Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to Grantor therefor. For purposes hereof, a written agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof; the Administrative Agent shall be free to carry out such sale pursuant to such agreement and Grantor shall not be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Administrative Agent shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations shall have been indefeasibly paid in full in cash. As an alternative to exercising the power of sale herein conferred upon it, the Administrative Agent may proceed by a suit or suits at law or in equity to foreclose this Agreement and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-appointed receiver. Any sale pursuant to the provisions of this Section 9(a) shall be deemed to conform to the commercially reasonable standards as provided in Section 9-610(b) of the NY UCC or its equivalent in other jurisdictions. Neither the Administrative Agent nor the Secured Parties shall be required to marshal any present or future Collateral or to resort to such Collateral in any particular order.
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Administrative Agent and the other Secured Parties may comply with any applicable state or federal law requirements in connection with a disposition of the Collateral and compliance will not be considered to adversely affect the commercial reasonableness of any sale of the Collateral. The Administrative Agent may sell the Collateral without giving any warranties as to the Collateral. The Administrative Agent may specifically disclaim any warranties of title or the like. This procedure will not be considered to adversely affect the commercial reasonableness of any sale of the Collateral. If the Administrative Agent sells any of the Collateral upon credit, Grantor will be credited only with payments actually made by the purchaser, received by the Administrative Agent and applied to the indebtedness of the purchaser. In the event the purchaser fails to pay for the Collateral, the Administrative Agent may resell the Collateral and the Grantor shall be credited with the proceeds of the sale.
SECTION 10 Certain Waivers. Grantor waives, to the fullest extent permitted by applicable law, (i) any right of redemption with respect to the Collateral, whether before or after sale hereunder, and all rights, if any, of marshalling of the Collateral or other collateral or security for the Secured Obligations; (ii) any right to require the Administrative Agent or the other Secured Parties (w) to proceed against any Person, (x) to exhaust any other collateral or security for any of
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the Secured Obligations, (y) to pursue any remedy in the Administrative Agent’s or any of the other Secured Parties’ power, or (z) to make or give any presentments, demands for performance, notices of nonperformance, protests, notices of protests or notices of dishonor in connection with any of the Collateral; and (iii) all claims, damages, and demands against the Administrative Agent or the other Secured Parties arising out of the repossession, retention, sale or application of the proceeds of any sale of the Collateral.
SECTION 11 Notices. All notices, requests, instructions, directions and other communications provided for herein (including any modifications of, or waivers, requests or consents under, this Agreement) shall be given or made in writing (including by telecopy or email) delivered, if to any of the parties hereto, as specified in the RIFA. Except as otherwise provided in this Agreement or therein, all such communications shall be deemed to have been duly given upon receipt of a legible copy thereof, in each case given or addressed as aforesaid. All such communications provided for herein by telecopy shall be confirmed in writing promptly after the delivery of such communication (it being understood that non-receipt of written confirmation of such communication shall not invalidate such communication).
SECTION 12 No Waiver; Cumulative Remedies.
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offset, or any release of Grantor or any other Person or any such collateral security, guarantee or right of offset, shall not relieve Grantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of the Administrative Agent against any Grantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedings.
SECTION 13 Binding Effect. This Agreement shall be binding upon, inure to the benefit of and be enforceable by Grantor, the Administrative Agent and their respective successors and assigns. Grantor shall not assign or delegate this Agreement, any of its rights or obligations hereunder or any interest herein or in the Collateral (in each case, except as expressly contemplated by this Agreement or the RIFA) without the prior written consent of the Administrative Agent, and any attempted assignment without such consent shall be null and void.
SECTION 14 Governing Law; Jurisdiction; Waiver of Jury Trial. Sections
7.16 and 7.17 of the RIFA are incorporated herein by reference, mutandis mutandis.
SECTION 15 Entire Agreement; Amendment. This Agreement and the other Transaction Documents constitute the entire agreement between the parties with respect to the subject matter hereof and supersede all prior agreements (including the Term Sheet), understandings and negotiations, both written and oral, between the parties with respect to the subject matter of this Agreement. No representation, inducement, promise, understanding, condition or warranty not set forth herein (or in other Transaction Documents) has been made or relied upon by either party hereto. None of this Agreement, nor any provision hereof, is intended to confer upon any Person other than the parties hereto any rights or remedies hereunder.
SECTION 16 Severability. If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions shall nevertheless be given full force and effect.
SECTION 17 Counterparts; Effectiveness. This Agreement may be executed in two or more counterparts, each of which shall be an original, but all of which together shall constitute one and the same instrument. This Agreement shall become effective when each party hereto shall have received a counterpart hereof signed by the other parties hereto. Any counterpart may be executed by facsimile or pdf signature and such facsimile or pdf signature shall be deemed an original.
SECTION 18 Incorporation of Provisions of the RIFA. To the extent the RIFA contains provisions of general applicability to the Transaction Documents, such provisions are incorporated herein by this reference.
SECTION 19 No Inconsistent Requirements. Grantor acknowledges that this Agreement and the other Transaction Documents may contain covenants and other terms and provisions variously stated regarding the same or similar matters, and agrees that all such covenants, terms and provisions are cumulative and all shall be performed and satisfied in accordance with their respective terms.
SECTION 20 Termination. Upon the termination of the RIFA and payment and performance in full of all Secured Obligations, the security interests created by this Agreement
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shall automatically terminate and the Administrative Agent shall promptly execute and deliver to
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Grantor such documents and instruments reasonably requested by Grantor as shall be necessary to evidence the termination of all security interests given by Grantor to the Administrative Agent hereunder. Any execution and delivery of such documents pursuant to this Section 20 shall be without recourse to or representation or warranty by the Administrative Agent. The Grantor shall reimburse the Administrative Agent upon demand for all reasonable and documented costs and out of pocket expenses, including the reasonable and documented out-of-pocket fees, charges and expenses of counsel, incurred by it in connection with any action contemplated by this Section 20.
Upon any sale, lease, transfer or other disposition by Grantor of any Collateral that is permitted under the RIFA, the security interest in such Collateral shall be automatically released.
In addition, in connection with the entry into any license by the Grantor concerning any Collateral, the Administrative Agent shall, at the request of Grantor, negotiate and enter into a non-disturbance agreement and other similar agreements in form and substance reasonably satisfactory to the Administrative Agent and the Grantor.
SECTION 21 Right of Set-Off. If a Put Option Event shall have occurred and is continuing, each Secured Party is hereby authorized at any time and from time to time, to the fullest extent permitted by law, to set off and apply any and all Collateral (including any deposits (general or special, time or demand, provisional or final)) at any time held and other obligations at any time owing by such Secured Party to or for the credit or the account of Grantor against any and all of the obligations of Grantor now or hereafter existing under this Agreement and the other Transaction Documents held by such Secured Party, irrespective of whether or not such Secured Party shall have made any demand under this Agreement or any other Transaction Document and although such obligations may be unmatured. The rights of each Secured Party under this Section 21 are in addition to any other rights and remedies (including other rights of setoff) which such Secured Party may have.
SECTION 22 Intercreditor Agreement.
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warranty shall be deemed true) by delivery of such Collateral to Oaktree (or other senior creditor under the Intercreditor Agreement from time to time) as bailee of, and on behalf of, the Administrative Agent pursuant to the Intercreditor Agreement.
[Remainder of page intentionally left blank; signature pages follow]
4895-8857-8573 v.6
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the date first above written.
GRANTOR:
IMPEL NEUROPHARMA, INC.
By: Name:
Title:
4895-8857-8573 v.6
OAKTREE FUND ADMINISTRATION, LLC
By: Name:
Title:
4895-8857-8573 v.6
Schedule 1 Grantor Information
Name |
Address |
Impel NeuroPharma, Inc. |
000 Xxxxxxx Xxx X, Xxxxx 000, Xxxxxxx, XX 00000 |
Name |
Address |
Impel NeuroPharma, Inc. |
0000 Xxxxxxxxxx Xxxx Xxxxxxx Xxxx, XX 00000 |
Impel NeuroPharma, Inc. |
0000 Xxxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxx 00000 |
Impel NeuroPharma, Inc. |
000 Xxxxx Xxxx, Xxxxx 000, XxXxxxxx, Xxxxxxxxx 00000 |
Impel NeuroPharma, Inc. |
00 Xxxxxx Xxxx Xxxx, Xxxxxx, Xxx Xxxxxx 00000 |
Impel NeuroPharma, Inc. |
Xxx Xxxxxxxx Xxxxxxx, 00, Xxxxxx, Xxxxx 20139 |
Impel NeuroPharma, Inc. |
00 Xxxxxx xx xx Xxxx 00000 Xx Xxxxxxxxxxx, Xxxxxx |
Impel NeuroPharma, Inc. |
Xxxxxxxxxxxxxxx 0 00000 Xxxxxxxxxxx xx Xxx, Xxxxxxx |
Name |
Jurisdiction |
Impel NeuroPharma, Inc. |
Delaware |
Name |
Other Names |
Period of Use |
N/A |
|
|
Name and Address of Bank |
Type of Account |
Account Number |
Borrower/Subsidiary Name |
XX Xxxxxx Xxxxx |
Operating |
78795227 |
Impel NeuroPharma, Inc. |
4895-8857-8573 v.6
0000 0xx Xxx, Xxxxx 00 Xxxxxxx, XX 00000 |
|
|
|
XX Xxxxxx Xxxxx 0000 0xx Xxx, Xxxxx 00 Xxxxxxx, XX 00000 |
Money Market |
3766091616 |
Impel NeuroPharma, Inc. |
XX Xxxxxx Xxxxx 0000 0xx Xxx, Xxxxx 00 Xxxxxxx, XX 00000 |
Money Market |
3380683200 |
Impel NeuroPharma, Inc. |
Silicon Valley Bank 0000 Xxxxxx Xxxxx Xxxxx Xxxxx, XX 00000 |
Operating |
3303464014 |
Impel NeuroPharma, Inc. |
Silicon Valley Bank 0000 Xxxxxx Xxxxx Xxxxx Xxxxx, XX 00000 |
Operating |
3303402337 |
Impel NeuroPharma, Inc. |
Westpac Bank Level 0, 000 Xxxxxxx Xx. Xxxxxxxxx, XXX 0000 |
International Operating Account |
572382 |
Impel NeuroPharma Australia PTY Ltd |
N/A
N/A
N/A
Name |
Address |
Brief Description of Location |
Impel NeuroPharma, Inc. |
0000 Xxxxxxxxxx Xxxx Xxxxxxx Xxxx, XX 00000 |
Freudenberg |
Impel NeuroPharma, Inc. |
0000 Xxxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxx 00000 |
PCI Pharma Service |
4895-8857-8573 v.6
Impel NeuroPharma, Inc. |
000 Xxxxx Xxxx, Xxxxx 000, XxXxxxxx, Xxxxxxxxx 00000 |
Cardinal Health 105 |
Impel NeuroPharma, Inc. |
00 Xxxxxx Xxxx Xxxx, Xxxxxx, Xxx Xxxxxx 00000 |
CCG Marketing Solutions |
Impel NeuroPharma, Inc. |
Xxx Xxxxxxxx Xxxxxxx, 00, Xxxxxx, Xxxxx 20139 |
Mipharm |
Impel NeuroPharma, Inc. |
00 Xxxxxx xx xx Xxxx 00000 Xx Xxxxxxxxxxx, Xxxxxx |
Nemera |
Impel NeuroPharma, Inc. |
Xxxxxxxxxxxxxxx 0 00000 Xxxxxxxxxxx xx Xxx, Xxxxxxx |
Harro Hofliger |
N/A
N/A
4895-8857-8573 v.6
EXHIBIT A
TO THE SECURITY AGREEMENT
FORM OF COPYRIGHT SECURITY AGREEMENT
This COPYRIGHT SECURITY AGREEMENT, dated as of [ ], 20[ ]
(“Copyright Security Agreement”), made by Impel NeuroPharma, Inc. (the “Grantor”), is in favor of Oaktree Fund Administration, LLC (“the Administrative Agent”).
W I T N E S S E T H:
WHEREAS, the Grantor is party to a Security Agreement dated as of March 17, 2022 (the “Security Agreement”) in favor of the Administrative Agent, pursuant to which the Grantor is required to execute and deliver this Copyright Security Agreement (capitalized terms used but not otherwise defined herein shall have the meanings given to them in the Security Agreement);
WHEREAS, pursuant to the terms of the Security Agreement, the Grantor has created in favor of the Administrative Agent a security interest in, and the Administrative Agent has become a secured creditor with respect to, the Copyright Collateral (as defined below);
NOW, THEREFORE, in consideration of the premises and to induce the Administrative Agent to enter into the RIFA and extend credit to Grantor thereunder, Grantor hereby grants to the Administrative Agent a security interest in all Product Intellectual Property Collateral now owned or at any time hereafter acquired by Grantor or in which Grantor now has or at any time in the future may acquire any right, title or interest, as collateral security for the complete payment and performance when due (whether at the stated maturity, by acceleration or otherwise) of all Secured Obligations, including (collectively (a) through (c), the “Copyright Collateral”):
The security interest granted pursuant to this Copyright Security Agreement is granted in conjunction with the security interest granted to the Administrative Agent pursuant to the Security Agreement, and the Grantor hereby acknowledges and affirms that the rights and remedies of the Administrative Agent with respect to the security interest in the Copyright Collateral made and granted hereby are more fully set forth in the Security Agreement. In the event that any provision of this Copyright Security Agreement is deemed to conflict with the Security Agreement, the provisions of the Security Agreement shall govern.
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Grantor hereby authorizes and requests that the Register of Copyrights record this Copyright Security Agreement.
THIS COPYRIGHT SECURITY AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS COPYRIGHT SECURITY AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
This Copyright Security Agreement may be executed by one or more of the parties to this Copyright Security Agreement on any number of separate counterparts, and all of said counterparts taken together shall be deemed to constitute one and the same instrument. Delivery of an executed signature page of this Copyright Security Agreement by facsimile transmission or electronic transmission (in PDF format) shall be effective as delivery of a manually executed counterpart hereof.
[Remainder of This Page Intentionally Left Blank.]
4895-8857-8573 v.6
IN WITNESS WHEREOF, the Grantor has caused this COPYRIGHT SECURITY AGREEMENT to be executed and delivered by its duly authorized officer as of the date first above written.
IMPEL NEUROPHARMA, INC.
By: Name:
Title:
Address:
Accepted and Agreed:
OAKTREE FUND ADMINISTRATION, LLC
By Name:
Title: Address:
4895-8857-8573 v.6
Schedule 1
COPYRIGHTS
Copyright Registrations
Title of Work |
Reg. No. |
Reg. Date |
Owner |
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4895-8857-8573 v.6
EXHIBIT B
TO THE SECURITY AGREEMENT
FORM OF TRADEMARK SECURITY AGREEMENT
This TRADEMARK SECURITY AGREEMENT, dated as of [ ], 20[ ]
(“Trademark Security Agreement”), made by Impel NeuroPharma, Inc. (the “Grantor”), is in favor of Oaktree Fund Administration, LLC (“the Administrative Agent”).
W I T N E S S E T H:
WHEREAS, the Grantor is party to a Security Agreement, dated as of March 17, 2022 (the “Security Agreement”) in favor of the Administrative Agent, pursuant to which the Grantor is required to execute and deliver this Trademark Security Agreement (capitalized terms used but not otherwise defined herein shall have the meanings given to them in the Security Agreement);
WHEREAS, pursuant to the terms of the Security Agreement, the Grantor has created in favor of the Administrative Agent a security interest in, and the Administrative Agent has become a secured creditor with respect to, the Trademark Collateral (as defined below);
NOW, THEREFORE, in consideration of the premises and to induce the Administrative Agent to enter into the RIFA and extend credit to the Grantor thereunder, Grantor hereby grants to the Administrative Agent a security interest in Product Intellectual Property Collateral now owned or at any time hereafter acquired by Grantor or in which Grantor now has or at any time in the future may acquire any right, title or interest, as collateral security for the complete payment and performance when due (whether at the stated maturity, by acceleration or otherwise) of all Secured Obligations, including (collectively (a) through (d), the “Trademark Collateral”):
4895-8857-8573 v.6
or unfair competition regarding the same, and to retain any damages due or accrued for any such past, present or future infringement of any such Trademarks.
The security interest granted pursuant to this Trademark Security Agreement is granted in conjunction with the security interest granted to the Administrative Agent pursuant to the Security Agreement, and the Grantor hereby acknowledges and affirms that the rights and remedies of the Administrative Agent with respect to the security interest in the Trademarks made and granted hereby are more fully set forth in the Security Agreement. In the event that any provision of this Trademark Security Agreement is deemed to conflict with the Security Agreement, the provisions of the Security Agreement shall govern.
Grantor hereby authorizes and requests that the Commissioner of Trademarks record this Trademark Security Agreement.
THIS TRADEMARK SECURITY AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS TRADEMARK SECURITY AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
This Trademark Security Agreement may be executed by one or more of the parties to this Trademark Security Agreement on any number of separate counterparts, and all of said counterparts taken together shall be deemed to constitute one and the same instrument. Delivery of an executed signature page of this Trademark Security Agreement by facsimile transmission or electronic transmission (in PDF format) shall be effective as delivery of a manually executed counterpart hereof.
[Remainder of This Page Intentionally Left Blank.]
4895-8857-8573 v.6
IN WITNESS WHEREOF, the Grantor has caused this TRADEMARK SECURITY AGREEMENT to be executed and delivered by its duly authorized officer as of the date first above written.
IMPEL NEUROPHARMA, INC.
By: Name:
Title:
Address:
Accepted and Agreed:
OAKTREE FUND ADMINISTRATION, LLC
By Name:
Title: Address:
4895-8857-8573 v.6
Schedule 1
TRADEMARKS
Trademark Registrations and Applications
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4895-8857-8573 v.6
EXHIBIT C
TO THE SECURITY AGREEMENT FORM OF PATENT SECURITY AGREEMENT
This PATENT SECURITY AGREEMENT, dated as of [ ], 20[ ] (“Patent Security Agreement”), made by Impel NeuroPharma, Inc. (the “Grantor”), is in favor of Oaktree Fund Administration, LLC (“the Administrative Agent”).
W I T N E S S E T H:
WHEREAS, the Grantor is party to a Security Agreement dated as of March 17, 2022 (the “Security Agreement”) in favor of the Administrative Agent, pursuant to which the Grantor is required to execute and deliver this Patent Security Agreement (capitalized terms used but not otherwise defined herein shall have the meanings given to them in the Security Agreement);
WHEREAS, pursuant to the terms of the Security Agreement, the Grantor has created in favor of the Administrative Agent a security interest in, and the Administrative Agent has become a secured creditor with respect to, the Patent Collateral (as defined below);
NOW, THEREFORE, in consideration of the premises and to induce the Administrative Agent to enter into the RIFA and extend credit to the Grantor thereunder, the Grantor hereby grants to the Administrative Agent a security interest in Product Intellectual Property Collateral now owned or at any time hereafter acquired by Grantor or in which Grantor now has or at any time in the future may acquire any right, title or interest, as collateral security for the complete payment and performance when due (whether at the stated maturity, by acceleration or otherwise) of all Secured Obligations (collectively (a) through (c), the “Patent Collateral”)):
attached hereto;
The security interest granted pursuant to this Patent Security Agreement is granted in conjunction with the security interest granted to the Administrative Agent pursuant to the Security Agreement, and the Grantor hereby acknowledges and affirms that the rights and remedies of the Administrative Agent with respect to the security interest in the Patents made and granted hereby are more fully set forth in the Security Agreement. In the event that any provision of this Patent Security Agreement is deemed to conflict with the Security Agreement, the provisions of the Security Agreement shall govern.
4895-8857-8573 v.6
The Grantor hereby authorizes and requests that the Commissioner of Patents record this Patent Security Agreement.
THIS PATENT SECURITY AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS PATENT SECURITY AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
This Patent Security Agreement may be executed by one or more of the parties to this Patent Security Agreement on any number of separate counterparts, and all of said counterparts taken together shall be deemed to constitute one and the same instrument. Delivery of an executed signature page of this Patent Security Agreement by facsimile transmission or electronic transmission (in PDF format) shall be effective as delivery of a manually executed counterpart hereof.
[Remainder of This Page Intentionally Left Blank.]
4895-8857-8573 v.6
IN WITNESS WHEREOF, the Grantor has caused this PATENT SECURITY AGREEMENT to be executed and delivered by its duly authorized officer as of the date first above written.
IMPEL NEUROPHARMA, INC.
By: Name:
Title:
Address:
Accepted and Agreed:
OAKTREE FUND ADMINISTRATION, LLC
By Name:
Title: Address:
4895-8857-8573 v.6
Schedule 1
PATENTS
Patents and Patent Applications
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4895-8857-8573 v.6
EXHIBIT B
FORM OF FUNDING NOTICE
Date : [•]
To: Oaktree Fund Administration, LLC, as Administrative Agent
000 X. Xxxxx Xxxxxx, 00xx Xxxxx Xxx Xxxxxxx, XX 00000 Attention: Xxxx Xxxxx Attention: Oaktree Agency
Email: XxXxxxx@xxxxxxxxxxxxxx.xxx Email: xxxxxxxxxxxxx@xxxxxxxxxx.xxx
Re: Funding under the Revenue Interest Financing Agreement
Ladies and Gentlemen:
The undersigned, Impel NeuroPharma, Inc., a Delaware corporation (the “Company), refers to the Revenue Interest Financing Agreement, dated as of March 17, 2022 (as amended or otherwise modified from time to time, the “RIFA”), among the Company, the Purchasers and Oaktree Fund Administration, LLC, as administrative agent for the Purchaser (in such capacity, together with its successors and assigns, the “Administrative Agent”). Capitalized terms used herein and not otherwise defined herein are used herein as defined in the RIFA.
The Company hereby gives you irrevocable notice, pursuant to Section 2.03 of the RIFA, of the request for funding of the Purchase Price herein:
Bank name: Bank Address: Routing Number:
Account Number:
[Signature Page Follows]
4895-2136-9357 v.12
IN WITNESS WHEREOF, the Company has caused this Funding Notice to be duly executed and delivered as of the day and year first above written.
COMPANY:
IMPEL NEUROPHARMA, INC.
By
Name: Title:
4895-2136-9357 v.12
