THIRD SUBSCRIPTION AGREEMENT in respect of the issuance of $11,500,000 senior secured loan notes due 2026 Between BABYLON GROUP HOLDINGS LIMITED (as Issuer 2) and ALBACORE PARTNERS III INVESTMENT HOLDINGS DESIGNATED ACTIVITY COMPANYALBACORE PARTNERS...
Execution Version
Dated 17 July 2023
THIRD SUBSCRIPTION AGREEMENT in respect of the issuance of $11,500,000 senior secured loan notes due 2026 | ||
Between BABYLON GROUP HOLDINGS LIMITED (as Issuer 2) and ALBACORE PARTNERS III INVESTMENT HOLDINGS DESIGNATED ACTIVITY COMPANY ALBACORE PARTNERS II INVESTMENT HOLDINGS D DESIGNATED ACTIVITY COMPANY ALBACORE STRATEGIC INVESTMENTS LP (as New Bridge Noteholders (2)) | ||
XXXXXXXX & XXXXX INTERNATIONAL LLP
00 Xx. Xxxx Xxx
Xxxxxx XX0X 0XX
Tel: x00 (0)00 0000 0000
Fax: x00 (0)00 0000 0000
xxx.xxxxxxxx.xxx
Xxxxxx XX0X 0XX
Tel: x00 (0)00 0000 0000
Fax: x00 (0)00 0000 0000
xxx.xxxxxxxx.xxx
TABLE OF CONTENTS
Page
THIS AGREEMENT is dated 17 July 2023.
BETWEEN:
(1)BABYLON GROUP HOLDINGS LIMITED, a limited liability company incorporated in the United Kingdom with company number 14707874 and with its registered office at 0 Xxxxxxxxxxxxx Xxxxx, Xxxxxx, Xxxxxxx, XX0X 0XX ("Issuer 2");
(2)THE ENTITIES listed in Schedule 1 (The New Bridge Noteholders (2)) as initial subscribers (the "New Bridge Noteholders (2)"); and
(3)XXXXX TRUSTEE SERVICES LIMITED as Trustee (in its capacity as the "Trustee").
WHEREAS:
(A)On 9 March 2023, the Original Bridge Noteholders agreed to subscribe for US$34,500,000 senior secured notes to be issued by Babylon Holdings Limited (the "Issuer") (the "Original Bridge Notes"). The Original Bridge Notes were issued and constituted pursuant to a loan note facility agreement dated 9 March 2023 between, among others, the Issuer and the Original Bridge Noteholders (as amended from time to time) (the "Original Loan Note Facility Agreement").
(B)On 10 May 2023, the New Bridge Noteholders agreed to subscribe for US$34,500,000 senior secured notes to be issued by Issuer 2 (the "New Bridge Notes"). The New Bridge Notes were issued and constituted pursuant to the Original Loan Note Facility Agreement as amended and restated by an amendment and restatement agreement dated 10 May 2023.
(C)The New Bridge Noteholders (2) have agreed to subscribe for US$11,500,000 senior secured notes to be issued by Issuer 2 (the "New Bridge Notes (2)") and to be issued and constituted pursuant to the Original Loan Note Facility Agreement as amended and restated by an amendment and restatement agreement dated on or about the date hereof entered into between, among others, the Issuer, Issuer 2 and the New Bridge Noteholders (2) in substantially the form set out in Schedule 4 (Amended and Restated Loan Note Facility Agreement) (the "Amended and Restated Loan Note Facility Agreement").
(D)The parties have entered into this Agreement in order to set out the terms of such subscription.
IT IS AGREED as follows:
1.DEFINITIONS AND INTERPRETATION
1.1Definitions
Capitalised terms used but not otherwise defined in this Agreement have the meanings set out in the Amended and Restated Loan Note Facility Agreement.
"Third Closing Date" means the date on which each of the initial conditions precedent in respect of the Tranche 7 Commitment Amount Payment required pursuant to Clause 5.1 (Conditions Precedent in respect of the Tranche 7 Commitment Amount Payment) have been delivered to the satisfaction of the New Bridge Noteholders (2) (acting reasonably) or waived by the New Bridge Noteholders (2).
"Subscription Request" means a notice substantially in the relevant form set out in Schedule 3 (Subscription Request).
1.2Construction
The interpretation provisions set out in clause 1 (Interpretation) of the Amended and Restated Loan Note Facility Agreement shall apply to this Agreement, mutatis mutandis.
1.3Third party rights
No person has any right under the Contracts (Rights of Third Parties) Act 1999 to enforce or enjoy the benefit of any term of this Agreement.
2.PURCHASE OF THE NEW BRIDGE NOTES (2)
(a)On the basis of the representations, warranties and agreements set forth herein and subject to the conditions set forth herein:
(i)Issuer 2 agrees to issue and sell to each New Bridge Noteholder (2), severally and not jointly; and
(ii)each New Bridge Noteholder (2) agrees to subscribe for and to purchase, severally and not jointly,
the aggregate principal amount of New Bridge Notes (2) set forth opposite such New Bridge Noteholder's (2) name in Schedule 1 (The New Bridge Noteholders (2)) at a price equal to 100.00% (subject to any applicable original issue discount to be applied under the Fee Letter pursuant to Clause 19.3 (OID) of the Amended and Restated Loan Note Facility Agreement) of the principal amount of the New Bridge Notes (2).
(b)The New Bridge Notes (2) are to be subscribed for and purchased in two separate tranches in the following amounts:
(i)a US$6,900,000 tranche (the "Tranche 7 Commitment Amount Payment"); and
(ii)a US$4,600,000 tranche (the "Tranche 8 Commitment Amount Payment").
3.PAYMENT AND DELIVERY
3.1The Tranche 7 Commitment Amount Payment
(a)Subject to Clause 5.1 below, the Tranche 7 Commitment Amount Payment by the New Bridge Noteholders (2) shall be paid to Issuer 2 and the relevant tranche of New Bridge Notes (2) shall be issued and sold by Issuer 2 on the issue date set out in a duly completed Subscription Request delivered by Issuer 2 to the Trustee, which must be no earlier than the Third Closing Date and no later than 21 July 2023 (such date being the "Tranche 7 Payment Date") provided that Issuer 2 has delivered that duly completed Subscription Request to the Trustee not later than 11.59 a.m. at least two (2) Business Days prior to the Tranche 7 Payment Date.
(b)The Tranche 7 Commitment Amount Payment shall be made by wire transfer from the New Bridge Noteholders (2) to Issuer 2 in immediately available funds in US Dollars to the account or accounts specified in the relevant
Subscription Request (which may be an account of one or more of the wholly owned subsidiaries of Issuer 2) (the "Specified Account").
3.2The Tranche 8 Commitment Amount Payment
(a)Subject to Clause 5.2 below, the Tranche 8 Commitment Amount Payment by the New Bridge Noteholders (2) shall be paid to Issuer 2 and the relevant tranche of the New Bridge Notes (2) shall be issued and sold by Issuer 2 in respect of the Tranche 8 Commitment Amount Payment, on the issue date set out in a duly completed Subscription Request delivered by Issuer 2 to the Trustee, which must be no earlier than 27 July 2023 (the "Tranche 8 Payment Date") provided that Issuer 2 has delivered that duly completed Subscription Request to the Trustee not later than 9 a.m. at least three (3) Business Days prior to the Tranche 8 Payment Date; and
(b)The Tranche 8 Commitment Amount Payment shall be paid into the Specified Account.
3.3Completion of a Subscription Request for the New Bridge Notes (2)
(a)Each Subscription Request for a tranche of New Bridge Notes (2) is irrevocable and will only be regarded as having been duly completed if:
(i)it identifies the tranche under which the New Bridge Notes (2) will be issued;
(ii)the proposed date of issue is a Business Day;
(iii)the currency is US Dollars and the amount of the New Bridge Notes (2) complies with paragraph (b) of Clause 2 (Purchase of the New Bridge Notes (2));
(b)Only one tranche of the New Bridge Notes (2) may be requested in each Subscription Request.
4.REPRESENTATIONS
Issuer 2 makes each of the representations and warranties set out in clause 11 (Representations and Warranties) of the Amended and Restated Loan Note Facility Agreement at the times specified in clause 11 (Representations and Warranties) of the Amended and Restated Loan Note Facility Agreement, by reference to the facts and circumstances existing on such dates.
5.CONDITIONS PRECEDENT
5.1Conditions Precedent in respect of the Tranche 7 Commitment Amount Payment
The several obligations of the New Bridge Noteholders (2) to make the Tranche 7 Commitment Amount Payment on the Tranche 7 Payment Date are subject to the following conditions having been satisfied or waived:
(a)within four (4) Business Days of the date of the Effective Date (as defined in the Amendment and Restatement Agreement), the Issuer has:
(i)published on the website of the Group an announcement in relation to the financing under the Amended and Restated Loan Note Facility Agreement in form and substance satisfactory to the Majority Noteholders (acting reasonably);
(ii)has reported the entry into the Amended and Restated Loan Note Facility Agreement and the transactions contemplated thereunder in a Current Report on Form 8-K filed with the Securities and Exchange Commission in form satisfactory to the Majority Noteholders;
(b)the Trustee and the New Bridge Noteholders (2) have received (or waived the requirement to receive) all of the documents and other evidence set out in Schedule 2 (Conditions Precedent) in form and substance satisfactory to the Trustee (acting on the instructions of the New Bridge Noteholders (2));
(c)on the date of this Agreement and the Tranche 7 Payment Date:
(i)each of the representations and warranties to be made pursuant to Clause 4 (Representations) on the Tranche 7 Payment Date is true in all material respects (except that any representations and warranties already qualified by materiality in clause 11 (Representations and Warranties) of the Amended and Restated Loan Note Facility Agreement shall be true in all respects); and
(ii)no Default has occurred or would result from the issuance of the New Bridge Notes (2); and
(d)it has not, after the date of this Agreement, become unlawful for a New Bridge Noteholder (2) to subscribe for or purchase any New Bridge Note (2) provided that such illegality alone will not affect the obligations of any other New Bridge Noteholder (2) to subscribe for or purchase any New Bridge Note (2) in accordance with this Agreement.
5.2Conditions Precedent to the Tranche 8 Commitment Amount Payment
Subject to Clause 5.1 (Conditions Precedent in respect of the Tranche 7 Commitment Amount Payment), the New Bridge Noteholders (2) will only be obliged to comply with Clause 3.2 (The Tranche 8 Commitment Amount Payment) in respect of the Tranche 8 Commitment Amount Payment if, on the Tranche 8 Payment Dates the following conditions have been satisfied or waived:
(a)in respect of the Tranche 8 Commitment Payment Amount:
(i)the Tranche 7 Commitment Amount Payment has been made in full (except to the extent that any Bridge Noteholder has defaulted in its obligations to pay all or any part of the Tranche 7 Commitment Amount Payment or any Bridge Noteholder has not made the Tranche 7 Commitment Amount Payment as a result of the operation of paragraph (d) of Clause 5.1 (Conditions Precedent in respect of the Tranche 7 Commitment Amount Payment above); and
(ii)each of the New Bridge Noteholders (2): (x) has received all necessary investment committee and other internal approvals; and (y) is satisfied that any other conditions to the issue of the Tranche 8 Notes which it may require have been satisfied in form and substance satisfactory to to the Majority New Bridge Noteholders,
and, the conditions in paragraphs (c) and (d) of Clause 5.1 (Conditions Precedent in respect of the Tranche 7 Commitment Amount Payment) are satisfied in all respects on the Tranche 8 Payment Date (and, for the avoidance of doubt, for such purposes, any reference to the date of this Agreement and the Tranche 7 Payment Date in paragraphs (c) and (d) of Clause 5.1 (Conditions Precedent in respect of the Tranche 7
Commitment Amount Payment) shall be deemed to be replaced by the Tranche 8 Payment Date).
6.PARTIAL INVALIDITY
If, at any time, any provision of this Agreement is or becomes illegal, invalid or unenforceable in any respect under any law of any jurisdiction, neither the legality, validity or enforceability of the remaining provisions nor the legality, validity or enforceability of such provision under the law of any other jurisdiction will in any way be affected or impaired.
7.REMEDIES AND WAIVERS
No failure to exercise, nor any delay in exercising, on the part of any New Bridge Noteholder (2), any right or remedy under this Agreement shall operate as a waiver of any such right or remedy or constitute an election to affirm this Agreement. No election to affirm this Agreement on the part of any New Bridge Noteholder (2) shall be effective unless it is in writing. No single or partial exercise of any right or remedy shall prevent any further or other exercise or the exercise of any other right or remedy. The rights and remedies provided in this Agreement are cumulative and not exclusive of any rights or remedies provided by law.
8.COUNTERPARTS
This Agreement may be executed in any number of counterparts, and this has the same effect as if the signatures on the counterparts were on a single copy of this Agreement.
9.GOVERNING LAW
This Agreement and any non-contractual obligations arising out of or in connection therewith are governed by English law.
10.ENFORCEMENT
(a)The courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection with this Agreement (including a dispute relating to the existence, validity or termination of this Agreement or any non-contractual obligation arising out of or in connection therewith) (a "Dispute").
(b)The parties to this Agreement agree that the courts of England are the most appropriate and convenient courts to settle Disputes and accordingly will not argue to the contrary.
This Agreement has been entered into on the date stated at the beginning of this Agreement.
Schedule 1
The New Bridge Noteholders (2)
The New Bridge Noteholders (2)
| Name | Subscription Amount ($) | ||||
| ALBACORE PARTNERS III INVESTMENT HOLDINGS DESIGNATED ACTIVITY COMPANY | 10,184,694.30 | ||||
| ALBACORE PARTNERS II INVESTMENT HOLDINGS D DESIGNATED ACTIVITY COMPANY | 1,210,916.04 | ||||
| ALBACORE STRATEGIC INVESTMENTS LP | 104,389.66 | ||||
| Total | $11,500,000 | ||||
Schedule 2
Conditions Precedent
Conditions Precedent
1.Original Obligors
(a)A copy of the constitutional documents and/or registry extracts (as applicable) of each Original Obligor (including a copy of any consents issued by the Jersey Financial Services Commission pursuant to the Control of Borrowing (Jersey) Order 1958 in respect of the Issuer) or, if the Trustee already has a copy, a certificate of an authorised signatory of the relevant Obligor confirming that the copy in the Trustee’s possession is still correct, complete and in full force and effect as at a date no earlier than the date of this Agreement.
(b)A copy of a resolution of the board of directors, board of managers, member or other equivalent governing body and/or the shareholders of each Original Obligor (in each case to the extent required by law):
(i)approving the terms of, and the transactions contemplated by, the Transaction Documents to which it is a party;
(ii)authorising a specified person or persons to execute the Transaction Documents to which it is a party on its behalf; and
(iii)authorising a specified person or persons, on its behalf, to sign and/or despatch all documents and notices (including, if relevant, any Selection Notice) to be signed and/or despatched by it under or in connection with the Transaction Documents to which it is a party.
(c)A specimen of the signature of each person authorised by the resolution referred to in paragraph (b) above (or otherwise being generally authorised to represent the relevant Original Obligor), in each case to the extent such person will execute a Transaction Document.
(d)A certificate of an authorised signatory of the relevant Original Obligor:
(i)confirming that issuance and/or guarantee by that Original Obligor of the New Bridge Notes (2) (as applicable) would not breach any borrowing, guarantee or similar limit binding on that Original Obligor (in each case subject to any limitations set out in the Transaction Documents); and
(ii)certifying that each copy document relating to it and specified in paragraphs (a) to (c) as being delivered by it is correct, complete and (to the extent executed) in full force and effect as at a date no earlier than the date of this Agreement.
2.Transaction Documents
A copy of each of the following in agreed form, duly executed by the Original Obligors party to them:
(a)the amendment and restatement agreement pursuant to which the Amended and Restated Loan Note Facility Agreement is amended and restated;
(b)this Agreement;
(c)an agreed form supplemental deed poll to amend the Existing Notes;
(d)the fee letter referred to in paragraph (c) of the definition of "Fee Letter" in the Amended and Restated Loan Note Facility Agreement; and
(e)the Transaction Security Documents listed in the table below:
Name of party to Security Document | Security Document | Governing law of Security Document | ||||||
| Babylon Holdings Limited | Second supplemental security agreement over the Issuer’s Jersey situated intangible moveable property | Jersey | ||||||
| Babylon Holdings Limited | Second supplemental debenture creating fixed and floating security over all assets (including its shares in Babylon Group Holdings Limited, Babylon International Limited and any of its Subsidiaries) | England | ||||||
| Babylon Group Holdings Limited | Second supplemental debenture creating fixed and floating security over all assets (including its shares in Issuer 2 and Babylon Healthcare Services Limited) | England | ||||||
| Babylon Group Holdings Limited | Second supplemental charge over its shares in Babylon Inc. | New York | ||||||
| Babylon Partners Limited | Second supplemental debenture creating fixed and floating security over all assets | England | ||||||
| Babylon Inc. and Babylon Healthcare Inc. | Second supplemental security agreement creating fixed and floating security over all assets (including Babylon Inc,’s shares in Babylon Healthcare Inc.) | New York | ||||||
(f)A copy of all notices, certificates and other documents (including, without limitation, Uniform Commercial Code financing statements and intellectual
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property security agreements) required to be sent, executed, delivered, or filed, as applicable under the supplemental Transaction Security Documents entered into pursuant to paragraph 2(e) above on the date of execution of the relevant supplemental Transaction Security Documents, executed by the applicable Original Obligors.
(g)All share certificates, transfers, stock transfer forms and stock powers or any equivalent of the foregoing duly executed by the relevant Original Obligor in blank in relation to the assets subject to or expressed to be subject to the Transaction Security and other documents of title to be provided under the supplemental Transaction Security Documents entered into pursuant to paragraph 2(e) above, in each case only to the extent that such documents are required to be provided on the date of execution of the relevant supplemental Transaction Security Documents.
(h)A consent letter (in the form acceptable to the Security Agent) executed by the Issuer consenting to the Jersey Registrations.
3.Other Documents
(a)Evidence that all fees, costs and expenses have been or will be paid within five (5) Business Days of the Third Closing Date.
(b)In respect of each company incorporated in the United Kingdom whose shares are the subject of the Transaction Security (a "Charged Company"), either:
(i)a certificate of an authorised signatory of the Issuer certifying that:
(A)each member of the Group has complied within the relevant timeframe with any notice it has received pursuant to Part 21A of the Companies Act 2006 from that Charged Company; and
(B)no "warning notice" or "restrictions notice" (in each case as defined in Schedule 1B of the Companies Act 2006) has been issued in respect of those shares,
together with a copy of the "PSC register" (within the meaning of section 790C(10) of the Companies Act 2006) of that Charged Company, which, in the case of a Charged Company that is a member of the Group, is certified by an authorised signatory of the Issuer to be correct, complete and not amended or superseded as at a date no earlier than the date of this Agreement; or
(ii)a certificate of an authorised signatory of the Issuer certifying that such Charged Company is not required to comply with Part 21A of the Companies Act 2006.
(c)A copy of a funds flow statement setting out the sources and uses for the Transaction to be made on or prior to the Tranche 7 Payment Date.
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Schedule 3
Subscription Request
Subscription Request
From: [Issuer]
To: [ ] as Trustee
Dated: [●]
Dear Sirs
BABYLON HOLDINGS LIMITED – Bridge Loan Notes Facility Agreement
dated [●] 2023 (as amended and restated from time to time) (the Agreement)
dated [●] 2023 (as amended and restated from time to time) (the Agreement)
1.We refer to the Agreement. This is a Subscription Request (as defined in the Second Subscription Agreement (as defined in the Agreement)). Terms defined in the Agreement and/or the Second Subscription Agreement have the same meaning in this Subscription Request unless given a different meaning in this Subscription Request.
2.We request that Notes are subscribed for on the following terms:
(a)Issuer: [●]
(b)Proposed [Tranche 7 Payment Date] / [Tranche 8 Payment Date]: [●]
(c)Amount: [●]
(d)Interest Period: [●]
(e)Specified Account: []
3.We confirm that each:
(a)condition specified in Clause 5.1 (Initial Conditions Precedent in respect of the Tranche 7 Commitment Amount Payment) of the Third Subscription Agreement, other than the condition set out in paragraph (d) thereof is or will be satisfied on or before the proposed [Tranche 7 Payment Date] / [Tranche 8 Payment Date]; and
(b)pursuant to paragraph 2(a) of the Third Subscription Agreement and Clause [19.3] (OID) of the Agreement, each Noteholder Participant is entitled to deduct an amount equal to its pro rata share of the [Tranche 7 OID Fee] / [Tranche 8 OID Fee] from its participation in the Amount set out in paragraph 2(c) above.
The proceeds of this Note should be credited to the Specified Account.
Yours faithfully
…………………………………
authorised signatory for
[the Issuer]
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Schedule 4
Amended and Restated Loan Note Facility Agreement
Amended and Restated Loan Note Facility Agreement
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EXECUTION PAGES
Issuer 2
/s/ Xxxxx xx Xxxxxxx For and on behalf of BABYLON GROUP HOLDINGS LIMITED as Issuer Name: Xxxxx xx Xxxxxxx Title: Director | |||||
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The New Bridge Noteholders (2)
ALBACORE PARTNERS III INVESTMENT HOLDINGS DESIGNATED ACTIVITY COMPANY
SIGNED on behalf of )
ALBACORE PARTNERS III INVESTMENT )
HOLDINGS DESIGNATED ACTIVITY )
COMPANY )
and acknowledged for and on behalf of )
AlbaCore Capital Group ICAV )
)
By: ALBACORE CAPITAL LLP )
as investment manager )
for and on behalf of AlbaCore Capital Limited )
as AIFM for AlbaCore Partners III Investment )
Holdings Designated Activity Company )
and AlbaCore Capital Group ICAV ) /s/ Xxxxxxx X Xxxxxx
) _______________________________
Authorised Signatory
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The New Bridge Noteholders (2)
ALBACORE PARTNERS II INVESTMENT HOLDINGS D DESIGNATED ACTIVITY COMPANY
SIGNED on behalf of )
ALBACORE PARTNERS II INVESTMENT )
HOLDINGS D DESIGNATED ACTIVITY )
COMPANY and acknowledged for and )
on behalf of AlbaCore Partners II ICAV )
)
By: ALBACORE CAPITAL LLP as )
investment manager for and on behalf of )
AlbaCore Capital Limited as AIFM for )
AlbaCore Partners II Investment Holdings D )
Designated Activity Company and ) /s/ Xxxxxxx X Xxxxxx
AlbaCore Partners II ICAV ) _______________________________
Authorised Signatory
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The New Bridge Noteholders (2)
ALBACORE STRATEGIC INVESTMENTS LP
SIGNED on behalf of )
ALBACORE STRATEGIC )
INVESTMENTS LP )
acting by its Investment Manager ) /s/ Xxxxxxx X Xxxxxx
ALBACORE CAPITAL LLP ) _______________________________
Authorised Signatory
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The Trustee
/s/ Xxxxxx Xxxxx for and on behalf of XXXXX TRUSTEE SERVICES LIMITED | ||
| Name: Xxxxxx Xxxxx | ||
| Title: Authorised Signatory | ||
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