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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
February 8, 2024
BioXcel
Therapeutics, Inc.
(Exact name of registrant as specified in its
charter)
Delaware |
|
001-38410 |
|
82-1386754 |
(State
or other jurisdiction of
incorporation) |
|
(Commission
File Number) |
|
(IRS
Employer Identification No.) |
555
Long Wharf Drive
New
Haven, CT 06511
(Address of principal executive offices, including
Zip Code)
(475)
238-6837
(Registrant’s telephone number, including
area code)
N/A
(Former name or former address, if changed since
last report)
Check
the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under
any of the following provisions:
¨ | Written
communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
¨ | Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
¨ | Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
¨ | Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant
to Section 12(b) of the Act:
Title of each class |
|
Trading Symbol(s) |
|
Name of each exchange on which
registered |
Common
Stock, par value $0.001 |
|
BTAI |
|
The Nasdaq
Capital Market |
Indicate
by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405
of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging
growth company ¨
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨
Item 8.01. Other Events.
BioXcel Therapeutics, Inc. (the “Company”) is providing
the following updates.
BXCL501 Updates and Planned Activities
On November 14, 2023, the Company announced that it had received
the final minutes from its meeting with the FDA held on October 11, 2023. Based on feedback from that meeting, the Company currently
plans to conduct an additional Phase 3 trial of BXCL501 in its TRANQUILITY program to evaluate safety and collect additional efficacy
data in the at-home setting. The Company is also planning to hold a Type B Breakthrough Therapy Designation Meeting with the FDA on February 20,
2024 to obtain feedback on the design of its proposed at-home study in patients with dementia due to probable Alzheimer’s disease,
with a focus on caregiver-assessed efficacy endpoints, and to discuss the content and format of a proposed supplemental New Drug Application
(“sNDA”) submission to expand labeling for BXCL501 to include the acute treatment of agitation associated with dementia due
to probable Alzheimer’s disease. Subject to discussions with the FDA, the Company expects to initiate its Phase 3 TRANQUILITY II
at-home trial in the first half of 2024 with topline results expected to be announced in the first quarter of 2025.
On December 12, 2023, the Company announced that it had received
the final minutes from its meeting with the FDA held on November 8, 2023. Based on the feedback from the FDA meeting, the Company
currently plans to evaluate BXCL501 in the at-home setting for the acute treatment of agitation in bipolar disorders and schizophrenia
using a 120 mcg dose, with safety as the primary endpoint and with efficacy evaluations as exploratory endpoints. The Company is also
planning to hold a Type C Meeting with the FDA on March 6, 2024 to obtain further feedback on its proposed changes to the design
of its SERENITY III at-home trial with a focus on efficacy endpoints, and to discuss the content and format of a potential sNDA submission
to expand labeling for BXCL501 120 mcg for the acute treatment of agitation associated with schizophrenia and bipolar disorders in the
outpatient setting. Subject to discussions with the FDA, the Company expects to initiate its Phase 3 SERENITY III at-home trial in the
first half of 2024.
Agitation in patients with neuropsychiatric diseases is a serious medical
condition. Agitation is characterized by feelings of unease, excessive talking, and/or unintentional and purposeless motions, such as
wringing of the hands or pacing. People experiencing agitation may also express excitement, hostility, poor impulse control, tension,
uncooperativeness, and occasional disruptive behavior, which may lead to aggression and violence. In many cases, people develop agitation
when treatment for their underlying disorder is not working well. Stressful situations or traumatic events can also trigger agitation.
Agitation can occur suddenly or slowly and vary in length, lasting for a few minutes or for an extended period.
With the agitation issues associated with schizophrenia and bipolar
disorders coupled with a fast-growing elderly population that is likely to experience increased levels of agitation associated with Alzheimer’s
disease, the difficulties and expenses of acute treatment of agitation are expected to grow significantly. The Company estimates that
in the United States, approximately 1.9 million patients with Alzheimer’s disease experience agitation at a rate of about 6 episodes
per month, on average. An estimated 1.6 million Americans diagnosed with schizophrenia or bipolar disorders experience agitation at a
rate of about 3 episodes per month, on average. Accordingly, the Company believes there is significant market opportunity for BXCL501
if approved for use in these populations in the at-home setting.
Liquidity
Based upon preliminary information available to the Company, as of
January 31, 2024, the Company estimates that it had approximately $61.6 million of cash and cash equivalents. This estimate is based
on currently available information, does not present all necessary information for an understanding of the Company’s financial condition
as of January 31, 2024, and is subject to change upon completion of its financial statement closing procedures. The Company’s
independent registered public accounting firm has not audited, reviewed or performed any procedures with respect to this estimate and,
accordingly, does not express an opinion or any other form of assurance about it. In addition, as of January 31, 2024, $102.7 million
in principal amount was outstanding under the Credit Agreement and Guaranty by and among the Company, certain of our subsidiaries as guarantors,
the lenders party thereto and Oaktree Fund Administration LLC, as administrative agent, as amended as of December 5, 2023 (the “Credit
Agreement”).
Risk Factors
The Company has limited clinical data supporting potential safety
or efficacy of BXCL501 for use in the acute treatment of agitation in patients with dementia due to probable Alzheimer’s disease
in the at-home setting.
In August 2023, the Company announced its intention to pursue
a strategic reprioritization of its commercialization and development efforts (the “Reprioritization”), including among other
things, a shift in focus to primarily develop BXCL501 for use in expanded settings, including the at-home setting and care facilities,
for the acute treatment of agitation in patients with dementia due to probable Alzheimer’s disease and the acute treatment of agitation
in schizophrenia and bipolar patients in the at-home setting. Although the Company has conducted several clinical trials that evaluated
BXCL501 in the institutional setting, it has limited data supporting BXCL501’s potential use in the at-home setting. In particular,
the Company has not conducted a clinical trial evaluating the at-home use of BXCL501 in the acute treatment of agitation in patients with
dementia due to probable Alzheimer’s disease.
Although the Company will seek additional feedback from the FDA regarding
the potential of its ongoing or completed clinical trials to support submission of one or more sNDAs, it is possible that the FDA may
not consider the Company’s available data adequate to support such submissions. For example, on October 11, 2023, the Company
received feedback from the FDA that TRANQUILITY I and TRANQUILITY II alone are not sufficient to support an sNDA submission for the use
of BXCL501 to treat acute agitation (non-daily) in patients with dementia due to probable Alzheimer’s disease in either the at-home
setting or care facilities, and the FDA indicated that the Company should conduct a further clinical trial to evaluate safety and collect
efficacy data of BXCL501 in the at-home setting before it is able to submit an sNDA seeking approval of BXCL501 for use in such populations.
These requirements for submission of an sNDA will be further discussed with the FDA at a forthcoming meeting.
Specifically, the Company has a Type B Breakthrough Therapy Designation
Meeting with the FDA scheduled for February 20, 2024 to obtain feedback on the design of its proposed at-home study in patients with
dementia due to probable Alzheimer’s disease and to discuss the content and format of a proposed sNDA submission to expand labeling
for BXCL501 to include the acute treatment of agitation associated with dementia due to probable Alzheimer’s disease. At this meeting,
the Company intends to propose to conduct a randomized, double blind, placebo-controlled, 2-arm study of 100 patients in which safety
and feasibility will be assessed as the primary endpoints over a 4-itek treatment period. The Company also intends to propose that it
should not assess efficacy in this trial since it believes there are no well-defined and validated measures of efficacy for the at-home
setting of acute agitation as measured by the caregiver, notwithstanding that the FDA stated that the Company should collect such efficacy
data at its October 2023 meeting.
The Company believes that the efficacy of BXCL501 for the treatment
of agitation in dementia patients has already been established in its Phase 3 study (BXCL501-303) and is further supported by additional
efficacy data from BXCL501-103, its Phase 2 study, and from the evaluation of BXCL501 in the treatment of agitation in schizophrenia (BXCL501-301)
and bipolar disorders (BXCL501-302). However, the FDA may not agree with the Company’s proposed trial design to evaluate both the
safety and efficacy of BXCL501 for the acute treatment of agitation associated with dementia due to probable Alzheimer’s disease
in an at-home setting. For example, to assess safety, the FDA may conclude that the Company needs to expose more patients to BXCL501 for
a longer period of time and that its proposed trial, combined with the patients in its previous trials, would not support filing of an
sNDA. Further, to assess efficacy, the FDA may determine that the Company cannot rely on its previous studies of BXCL501 for this proposed
indication since those studies were conducted in assisted living facilities and they are not comparable to the at-home setting. In addition,
the FDA may determine that the Company cannot rely on the data from its prior TRANQUILITY II Phase 3 trial to support an sNDA as a result
of potential data integrity issues at the trial site, as the FDA may not agree with the conclusion of the Company’s independent
consulting firm that there were no findings from their investigation that impact the data reliability or integrity of the trial. See Part II, Item
1A, “Risk Factors—Risks Related to the Discovery and Development of Product Candidates—Developments relating to its
TRANQUILITY II Phase 3 trial may impact the timing of its development plans for, and prospects for seeking or obtaining regulatory approval
of, BXCL501 for the acute treatment of agitation (non-daily) associated with dementia in patients with probable Alzheimer’s disease”
in the Company’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2023 for additional information. If
the FDA does not accept the data from the Company’s prior TRANQUILITY II Phase 3 trial, the Company may be required to conduct additional
clinical trials which would increase its costs and delay potential submission of an sNDA for BXCL501 which in turn would adversely affect
its financial position and operations.
Accordingly, if the FDA reaches these conclusions
or otherwise finds that the Company’s proposed study would not adequately evaluate the safety and efficacy of BXCL501 for the acute
treatment of agitation associated with dementia due to probable Alzheimer’s disease in an at-home setting, the Company may need
to evaluate more patients for a longer period of time to demonstrate the safety and efficacy of BXCL501. Any modifications to the Company’s
proposed trial design by the FDA would delay its initiation of the proposed trial, increase the costs of any trial that it does conduct
and delay its submission of an sNDA for BXCL501 for the acute treatment of agitation associated with dementia due to probable Alzheimer’s
disease. Requirements to conduct additional clinical trials evaluating BXCL501 in support of the Company’s planned sNDAs seeking
approvals for BXCL501 for its targeted patient populations in at-home settings would increase its costs, and could have a material adverse
effect on its prospects and results of operations.
The Company has identified conditions
and events that raise substantial doubt regarding its ability to continue as a going concern. As a result, the Company will need to raise significant additional capital to continue its planned operations.
Based upon preliminary information available
to it, as of January 31, 2024, the Company estimates that it had approximately $61.6 million of cash and cash equivalents. It is
possible that the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2023, when filed with the
Securities and Exchange Commission, and the report of its auditors contained therein, may reflect there is substantial doubt regarding
its ability to continue as a going concern for a period of one year after such date. A report and opinion of the Company’s independent
certified public accountants on its audited financial statements for a fiscal year subject to a “going concern” or like qualification
or exception or emphasis of matter of going concern footnote or any qualification or exception as to the scope of such audit (collectively,
a “Going Concern Opinion”) constitutes an event of default under the Credit Agreement, subject to a 120-day cure period. In
order to mitigate current and potential future liquidity issues, the Company has undertaken the Reprioritization and may, among other
things, seek to raise additional capital in the future through the issuance of common stock, or by restructuring, refinancing, and/or
amending the terms of the Credit Agreement (including with respect to regulatory related events of default that do not contain a cure
period) or pursue other strategic alternatives. However, such transactions may not be successful and the Company may not be able to raise
additional equity, restructure, refinance or amend the terms of the Credit Agreement on acceptable terms, or at all. As a result, the
Company may default under the Credit Agreement, resulting in an acceleration of outstanding indebtedness under the Credit Agreement. Acceleration
of the repayment of the outstanding indebtedness would raise substantial doubt about the Company’s ability to continue as a going
concern, shorten the period for which it will be able to fund its operations and would adversely affect its financial condition and ability
to pursue its business strategy.
Given the Company’s current cash position
and funding needs, it will need to obtain significant additional capital in the future to continue its planned operations, including its
ongoing and planned clinical trials, commercialization of its products, and continuation as an operating public company. The Company may
not be able to obtain sufficient additional funds to achieve top-line results from its Phase 3 TRANQUILITY II at-home trial if it is delayed
due to regulatory matters or other unforeseen events. Moreover, there can be no guarantee that the Company will be able to achieve the
milestones required to take advantage of additional tranches under the Credit Agreement in the near term if at all. If the Company is
unable to obtain additional funding under the Credit Agreement, it would be required to seek alternative sources of funding to continue
operations, which may not be available on acceptable terms, or at all. The inability to secure future funding sources could have a material
adverse effect upon the Company’s financial position and the ability to conduct its business.
The Company has significant indebtedness
and other contractual obligations that could impair its liquidity, restrict its ability to do business and thereby harm its business,
results of operations and financial condition. The Company may not have sufficient cash flow from operations to satisfy its obligations
under the Credit Agreement.
As of January 31, 2024, $102.7 million
in principal amount was outstanding under the Credit Agreement. The Credit Agreement contains customary representations and warranties
and customary affirmative and negative covenants, including, among other things, restrictions on indebtedness, liens, investments, mergers,
dispositions, prepayment of other indebtedness, and dividends and other distributions, subject to certain exceptions, including specific
exceptions with respect to product commercialization and development activities. The Company must also comply with certain covenants under
the Credit Agreement, including a financial covenant that requires it maintain a minimum cash liquidity amount of $15 million (or higher
upon certain events) and a minimum revenue requirement measured on a quarterly basis based on the revenue attributable to BXCL501 for
the six consecutive month period ending on the last day of the relevant quarter, subject to cure payments of not less than $1.0 million
if it fail to meet the minimum revenue requirement. The minimum revenue requirement applies beginning with the preceding six-month period
ending on December 31, 2024, and ranges from approximately $4.5 million for the fourth quarter of 2024 to approximately $47.9 million
for the first quarter of 2027. If the Company fails to meet the minimum revenue requirements for the six-month periods ending on December 31,
2024, March 31, 2025, June 30, 2025 and September 30, 2025, it could be required to make revenue cure payments for the
revenue shortfalls of up to $4.5 million, $6.2 million, $8.5 million, and $8.5 million, respectively, plus aggregate prepayment fees of
$1.9 million. Under the Credit Agreement, these cure payments would be due on April 21, 2025, June 6, 2025, September 5,
2025 and December 8, 2025, respectively. The Company had revenue of $1.0 million for the nine months ended September 30, 2023
and the minimum revenue requirements under the Credit Agreement would require a significant increase from its expected revenue for the
fiscal year ended December 31, 2023. However, there can be no assurances that the Company will be able to increase its revenue in
the time frame needed to remain compliant with the minimum revenue requirement under the Credit Agreement. The Company is only permitted
to make cure payments for shortfalls under the minimum revenue requirement up to three times during the term of the Credit Agreement,
after which the Company would default on the Credit Agreement if it is unable to satisfy the minimum revenue requirement for any subsequent
fiscal quarter. In addition, certain events, including certain regulatory events and a Going Concern Opinion, constitute an event of default
under the Credit Agreement. Certain change of control events can also trigger an event of default under the Credit Agreement, including
control by any entity or group of entities, other than BioXcel LLC and its affiliates, that acquires 35% or more of our voting capital
stock.
The Company’s ability to make scheduled
payments or payments to maintain compliance with covenants or to restructure or refinance these and other outstanding debt obligations
depends on its financial and operating performance, including growth in revenue from BXCL501, which will be affected by prevailing economic,
industry and competitive conditions and by financial, business and other factors beyond its control. A failure to pay its debt, fixed
costs and other obligations or a breach of its contractual obligations could result in a variety of adverse consequences, including the
acceleration of the Company’s obligations or the exercise of remedies by its creditors and lessors. In such a situation, it is unlikely
that the Company would be able to cure its breach, fulfill its obligations, make required payments or otherwise cover its fixed costs,
which would have a material adverse effect on its business, results of operations and financial condition.
In addition, historically the Company has
relied on debt and equity financings as its primary sources of liquidity. If its future cash flows and capital resources are insufficient
to fund its debt service obligations, the Company may be forced to reduce or delay expenditures, sell assets, seek additional capital
or seek to restructure or refinance its indebtedness. Any refinancing or restructuring of the Company’s indebtedness could be at
higher interest rates and may require it to comply with more onerous covenants. These alternative measures may not be successful and may
not permit the Company to meet its scheduled debt service obligations. In the absence of such cash flows and resources, the Company could
face substantial liquidity problems and might be required to sell material assets or operations to attempt to meet its debt service obligations.
The Company’s only approved product
to date is IGALMITM sublingual film for the acute treatment of agitation associated with schizophrenia or bipolar I or II disorder,
to be self-administered by patients under the supervision of a healthcare provider. If IGALMITM or other products the Company
may have approved do not gain market acceptance, the Company’s future operations may be adversely affected.
The Company plans to continue to commercialize IGALMITM
sublingual film for the acute treatment of agitation associated with schizophrenia or bipolar I or II disorder, to be self-administered
by patients under the supervision of a healthcare provider, which is the Company’s only approved product to date. However, in connection
with the Reprioritization, the Company significantly reduced the resources devoted to commercialization of IGALMITM and it
is possible that will have adverse consequences on the revenue that the Company is able to generate from IGALMITM. Revenues
for IGALMITM for the nine months ended September 30, 2023 were $1.0 million. If the Company’s commercial products
do not gain market acceptance, the Company may not be able to fund future operations, including developing, testing and obtaining regulatory
approval for an sNDA for other BXCL501 indications, including in the at-home setting for the acute treatment of agitation (non-daily)
associated with dementia due to probable Alzheimer’s disease, or for other product candidates that it may develop. The Company’s
results of operations could be materially harmed if the Company is unable to successfully commercialize IGALMITM for any currently
or additionally approved indications or any future product candidates it may have approved.
In a Current Report on Form 8-K filed with the Securities and
Exchange Commission on December 6, 2023, the Company disclosed the material terms of the Second Amendment. A copy of the Second Amendment
is filed hereto as Exhibit 10.1 and is incorporated herein by reference.
Item 9.01. Financial Statements and Exhibits.
(d)
10.1+ | Second Amendment to Credit Agreement and Guaranty and Termination of Revenue Interest Financing Agreement dated December 5, 2023,
which amended the Credit Agreement and Guaranty, dated April 19, 2022, by and among the Company, as the borrower, certain subsidiaries
of the Company from time to time party thereto as subsidiary guarantors, the lenders party thereto, and Oaktree Fund Administration LLC,
as administrative agent (as amended by the Waiver and First Amendment to Credit Agreement and Guaranty, dated as of November 13,
2023) |
104 | Cover Page Interactive Data File (the cover page XBRL tags are embedded within the Inline XBRL document) |
+ Certain annexes, schedules, and exhibits have been omitted pursuant
to Item 601(a)(5)(b)(2) of Regulation S-K. The Company hereby agrees to furnish supplementally a copy of any omitted annex, schedule
or exhibit to the SEC upon request.
Forward-Looking Statements
This Current Report on Form 8-K (“Form 8-K”)
includes “forward-looking statements” within the meaning of the Private Securities Litigation Reform Act of 1995. We intend
such forward-looking statements to be covered by the safe harbor provisions for forward-looking statements contained in Section 27A
of the Securities Act of 1933, as amended (the “Securities Act”) and Section 21E of the Securities Exchange Act of 1934,
as amended (the “Exchange Act”). All statements contained in this Form 8-K other than statements of historical fact should
be considered forward-looking statements, including, without limitation, statements regarding the Company's clinical development pipeline
and future clinical trials and the preliminary estimates of its cash and cash equivalents and principal amount outstanding under the Credit
Agreement as of January 31, 2024. When used herein, words including “anticipate,” “believe,” “can,”
“continue,” “could,” “designed,” “estimate,” “expect,” “forecast,”
“goal,” “intend,” “may,” “might,” “plan,” “possible,” “potential,”
“predict,” “project,” “should,” “target,” “will,” “would” and
similar expressions are intended to identify forward-looking statements, though not all forward-looking statements use these words or
expressions. In addition, any statements or information that refer to expectations, beliefs, plans, projections, objectives, performance
or other characterizations of future events or circumstances, including any underlying assumptions, are forward-looking. All forward-looking
statements are based upon the Company’s current expectations and various assumptions. The Company believes there is a reasonable
basis for its expectations and beliefs, but they are inherently uncertain. The Company may not realize its expectations, and its beliefs
may not prove correct. Actual results could differ materially from those described or implied by such forward-looking statements as a
result of various important factors, including, without limitation, its need for substantial additional funding and ability to raise capital
when needed; its limited experience in drug discovery and drug development; its dependence on the success and commercialization of IGALMITM
and BXCL501 and other product candidates; submissions for regulatory approval or review by governmental
authorities, the supplemental risk factors provided in this Form 8-K and the other important factors discussed under the caption
“Risk Factors” in its Quarterly Report on Form 10-Q for the quarterly period ended September 30, 2023, as such factors
may be updated from time to time in its other filings with the SEC, which are accessible on the SEC’s website at www.sec.gov. These
and other important factors could cause actual results to differ materially from those indicated by the forward-looking statements made
in this Form 8-K. Any such forward-looking statements represent management’s estimates as of the date of this Form 8-K.
While the Company may elect to update such forward-looking statements at some point in the future, except as required by law, it disclaims
any obligation to do so, even if subsequent events cause our views to change. These forward-looking statements should not be relied upon
as representing the Company’s views as of any date subsequent to the date of this Form 8-K.
SIGNATURES
Pursuant to the requirements
of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
Date: February 8, 2024 |
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BIOXCEL THERAPEUTICS, INC. |
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/s/ Javier Rodriguez |
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By: |
Javier Rodriguez |
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Title: |
SVP, Chief Legal Officer |
Exhibit 10.1
EXECUTION VERSION
SECOND AMENDMENT TO CREDIT AGREEMENT AND
GUARANTY AND TERMINATION OF REVENUE INTEREST FINANCING AGREEMENT
This Second Amendment to
Credit Agreement and Guaranty and Termination of Revenue Interest Financing Agreement (this “Amendment”)
is made as of December 5, 2023, by and among BIOXCEL THERAPEUTICS, INC., a Delaware corporation, as borrower (the “Borrower”),
the Guarantors party to the Credit Agreement (as defined below), the Lenders party to the Credit Agreement (in their capacities as such,
the “Lenders”), the Purchasers party to the Revenue Interest Financing Agreement (as defined below) (in their
capacities as such, the “Purchasers”), OAKTREE FUND ADMINISTRATION, LLC, in its separate capacities as administrative
agent for the Lenders (in such capacity, the “Administrative Agent”) and as administrative agent under the
Revenue Interest Financing Agreement (in such capacity, the “RIFA Agent”).
WHEREAS, the Borrower, the
Guarantors, the Administrative Agent and the Lenders party thereto previously entered into that certain Credit Agreement and Guaranty,
dated as of April 19, 2022 (including the exhibits and other attachments thereto, as amended by that certain Waiver and First Amendment
to Credit Agreement and Guaranty, dated as of November 13, 2023 (the “First Amendment”), the “Existing
Credit Agreement”, and as further amended by this Amendment, the “Credit Agreement”);
WHEREAS, Borrower, Purchasers
and the RIFA Agent are parties to the Revenue Interest Financing Agreement, dated as of April 19, 2022 (as amended, restated, supplemented
or otherwise modified from time to time, the “Revenue Interest Financing Agreement”);
WHEREAS, the Borrower has
requested certain amendments to the Existing Credit Agreement, including, among other things, (i) the deferral of the effectiveness
of the Minimum Revenue Covenant and the reduction of the required minimum revenue levels set forth in the Minimum Revenue Covenant and
(ii) the addition of a new $50,000,000 Tranche D Term Loan available upon satisfaction of certain conditions on or before December 31,
2025;
WHEREAS, as a condition precedent
to the Lenders’ willingness to provide the amendments contemplated hereby, the Borrower and the Lenders have agreed that each Lender,
in its capacity as Purchaser, shall contribute all of its claims in respect of the Obligations outstanding under the Revenue Interest
Financing Agreement (the “RIFA Obligations”) in exchange for the Borrower issuing to it such Purchaser’s
Proportionate Share (as defined in the Revenue Interest Financing Agreement) of Tranche A-2 Term Loans, as set forth in Section 3
below, and the Revenue Interest Financing Agreement shall be terminated upon the completion of such exchange (other than the provisions
that, by their express terms, survive the termination of the Revenue Interest Financing Agreement);
WHEREAS, pursuant to Section 6
of the First Amendment, the Borrower agreed to, and to cause the other Obligors to, on or before December 1, 2023 (or such later
date as the Administrative Agent may agree in its sole and absolute discretion), execute and deliver to Administrative Agent and the
Lenders its duly executed signature pages to an amendment to the Credit Agreement and documents related thereto or contemplated
thereby, in each case, on substantially the terms described in Exhibit A to the First Amendment or such other terms as the parties
may mutually agree, and the parties hereto agree that (i) this Amendment satisfies the requirements of Section 6 of the First
Amendment and (ii) for the avoidance of doubt, the Administrative Agent agreed to extend the deadline to satisfy the requirements
of Section 6 of the First Amendment to the date hereof; and
WHEREAS, the Borrower, the
Administrative Agent and the Lenders have agreed to amend the Existing Credit Agreement, and the Borrower, the RIFA Agent and the Purchasers
have agreed to terminate the Revenue Interest Financing Agreement, in each case, on the terms and subject to the conditions set forth
herein.
NOW, THEREFORE, for and in
consideration of the above premises and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged
by the parties hereto, each of the Borrower, the Guarantors, the Administrative Agent, the Lenders party hereto, the RIFA Agent and the
Purchasers party hereto hereby covenants and agrees as follows:
| 1. | Definitions. Capitalized terms used
herein and not otherwise defined herein shall have the meanings assigned to such terms
in the Existing Credit Agreement. |
| 2. | Amendments. Subject to the satisfaction
of the conditions precedent specified in Section 5 hereof, on the Second Amendment Effective
Date, the Existing Credit Agreement (including the Exhibits thereto) shall be amended as
set forth on Exhibit A to this Amendment. |
| (a) | Language inserted into the applicable
section of the Existing Credit Agreement is evidenced by double underline formatting (indicated
textually in the same manner as the following example: double
underlined text). Language deleted from the applicable section of the Existing Credit
Agreement is evidenced by strike-through formatting (indicated textually in the same manner
as the following example: stricken text); |
| (b) | Schedule 1 to the Existing Credit
Agreement is hereby amended and restated in its entirety as set forth on Exhibit B
hereto; |
| (c) | Schedule 3 to the Existing Credit
Agreement is hereby amended and restated in its entirety as set forth on Exhibit C
hereto; and |
| (d) | Except to the extent specifically set
forth in Exhibit A, Exhibit B, Exhibit C or Exhibit D,
the Exhibits and Schedules to the Credit Agreement are not amended or modified hereby in
any respect. |
It is agreed that no conforming revisions
have been made to the other Loan Documents, and, to the extent that there other revisions to the Loan Documents necessitated by this
Amendment, the parties hereto agree to cooperate and make reasonable revisions to such other Loan Documents to reflect the agreements
contained in this Amendment. Any references to the Credit Agreement in the other Loan Documents shall mean the Credit Agreement as amended
by this Amendment.
| (a) | Subject to the satisfaction of the conditions
precedent specified in Section 5 hereof, on the Second Amendment Effective Date, each
of the Purchasers shall receive Tranche A-2 Term Loans in a principal amount equal to such
Purchaser’s Proportionate Share (as defined in the Revenue Interest Financing Agreement)
of $30,000,000. |
| (b) | Upon receipt by each Purchaser of such
Tranche A-2 Term Loans, each Purchaser shall be deemed to have automatically contributed
to the Borrower its Proportionate Share (as defined in the Revenue Interest Financing Agreement)
of the RIFA Obligations in exchange for such Tranche A-2 Term Loans, and upon such contribution
(i) the RIFA Obligations shall be deemed discharged in full, (ii) all security
interests in the Collateral (as defined in the Revenue Interest Financing Agreement) created
pursuant to the Revenue Interest Financing Agreement securing the RIFA Obligations shall
be automatically released, (iii) the Revenue Interest Financing Agreement, including
all commitments of the Purchasers thereunder, shall be terminated (provided that the provisions
of Section 5.03, Section 5.10, Section 7.05 and Section 7.19 thereof
shall survive such termination) and (iv) the Security Agreement (as defined in the Revenue
Interest Financing Agreement) shall be terminated. Any amounts currently deposited in one
or more Collection Accounts (as defined in the Revenue Interest Financing Agreement) shall
be transferred into a Controlled Account concurrently with the effectiveness of this Amendment. |
| (c) | The parties hereto agree and acknowledge
that, after giving effect to the transactions contemplated by this Amendment, including this
Section 3, the outstanding Loans and Commitments of the Lenders shall be as set forth
in the amended Schedule 1 attached hereto as Exhibit B (it being understood
that all references to “Tranche A” in the Existing Credit Agreement will be replaced
by references to “Tranche A-1” upon the effectiveness of this Amendment). |
| (d) | The Borrower agrees that the RIFA Obligations
and the security interests granted in connection therewith shall be reinstated with full
force and effect if at any time on or after the Second Amendment Effective Date the exchange
contemplated by this Section 3 or all or any portion of the Tranche A-2 Term Loans issued
to the Purchasers pursuant to this Section 3 are voided, rescinded, disallowed or held
not to be valid and enforceable first priority secured claims in any way, including in connection
the Borrower’s insolvency, bankruptcy, reorganization or otherwise, all as if the transactions
contemplated by this Amendment had not occurred. |
| 4. | Reaffirmation of Loan Documents. The
Borrower and the Guarantors, as Grantors under the Security Documents, hereby (i) agrees
that each of the Loan Documents is, and shall continue to be, in full force and effect and
is hereby in all respects ratified and confirmed on the Second Amendment Effective Date,
except that, on and after the Second Amendment Effective Date, each reference to “Credit
Agreement”, “this Agreement”, “thereunder”,
“thereof” or words of like import shall, unless the context otherwise
requires, mean and be a reference to the Existing Credit Agreement as amended by this
Amendment and (ii) confirms that the Security Documents and all of the Collateral described
therein do, and shall continue to, secure the payment in full and performance of all of the
Obligations. |
| 5. | Conditions Precedent to Effectiveness.
This Amendment shall become effective upon the fulfillment of the following conditions precedent
(the date of such fulfillment, the “Second Amendment Effective Date”): |
| (a) | This Amendment shall have been duly executed
and delivered to the Administrative Agent by the Borrower, the Guarantors and the Lenders
party hereto, which constitute all of the “Lenders” as defined in the Existing
Credit Agreement; |
| (b) | The amended and restated Fee Letter and
amended and restated Registration Rights Agreement shall have been duly executed and delivered
to the Administrative Agent by the Borrower; |
| (c) | The Borrower shall have issued and delivered
to the Lenders warrants, evidenced by an instrument substantially in the form of Exhibit J-1
attached to the Credit Agreement (as amended hereby), dated as of the Second Amendment
Effective Date, exercisable for an aggregate number of shares of common stock of the Borrower
set forth in Exhibit D; |
| (d) | All Company Warrants previously issued
to the Lenders shall have been amended to revise the exercise price thereunder from $20.04
per share to $3.6452 per share; |
| (e) | The Administrative Agent shall have received,
for the benefit of the Lenders, payment of all accrued and unpaid interest on the Loans since
the most recent Payment Date through (but not including) the Second Amendment Effective Date
(in an aggregate amount equal to $1,373,840.96, of which $301,574.85 shall be paid “in
kind” by adding and capitalizing such amount to the outstanding principal amount
of the Tranche A-1 Term Loans (and the amount so capitalized shall constitute “principal”
for all purposes of the Loan Documents from and after the Second Amendment Effective Date)
and $1,072,266.11 shall be paid in cash; |
| (f) | The Borrower shall have paid to the RIFA
Agent, for the account of the Purchasers, an amount equal to the sum of (i) the Revenue
Interest Payments (as defined in the Revenue Interest Financing Agreement as in effect immediately
prior to the date hereof) for the fiscal quarter ended September 30, 2023 plus (ii) a
prorated portion (based on the actual portion of the quarter elapsed) of the Revenue Interest
Payments (as defined in the Revenue Interest Financing Agreement as in effect immediately
prior to the date hereof) for the fiscal quarter ending December 31, 2023; |
| (g) | The Borrower shall have paid all costs,
fees and expenses of the Administrative Agent and the Lenders, including, without limitation,
the fees and expenses of Sullivan & Cromwell LLP, as outside counsel to Administrative
Agent and the Oaktree Lenders and the fees and expenses of Shearman & Sterling LLP,
as outside counsel to Q Boost Holding LLC, incurred prior to date hereof, to the extent invoiced
at least one Business Day prior to the date hereof; |
| (h) | Each of the representations and warranties
in Section 7 of this Amendment, Section 7 of the Credit Agreement and in the other
Loan Documents shall be true, accurate and complete in all material respects (unless such
representations are already qualified by reference to materiality, Material Adverse Effect
or similar language, in which case such representations and warranties shall be true and
correct in all respects) on and as of the date hereof with the same effect as though made
on and as of such date, except to the extent such representations and warranties expressly
relate to an earlier date, in which case such representations and warranties shall have been
true and correct in all respects on and as of such earlier date; |
| (i) | At the time of and after giving effect
to this Amendment, no fact or condition exists that constitutes, or with the passage of time,
the giving of notice, or both, would constitute, an Event of Default; |
| (j) | The Administrative Agent shall have received
a duly executed legal opinion of counsel to the Obligors dated as of the Second Amendment
Effective Date, in form and substance reasonably acceptable to the Administrative Agent; |
| (k) | The Administrative Agent shall have received
from each Obligor (x) a copy of a good standing certificate, dated a date reasonably
close to the Second Amendment Effective Date, for each such Person and (y) a certificate,
dated as of the Second Amendment Effective Date, duly executed and delivered by such Person’s
Responsible Officer, as to: |
| (i) | resolutions of each such Person’s
Board then in full force and effect authorizing the execution, delivery and performance of
each Loan Document to be executed by such Person and the Transactions; |
| (ii) | solely to the extent different than the
incumbency delivered on the Closing Date, the incumbency and signatures of Responsible Officers
authorized to execute and deliver each Loan Document to be executed by such Person; and |
| (iii) | the full force and validity of each Organic
Document of such Person and, solely to the extent modified or amended since the Closing Date,
copies thereof; |
which certificates shall be in form and
substance reasonably satisfactory to the Administrative Agent and upon which the Administrative Agent and the Lenders may conclusively
rely until they shall have received a further certificate of the Responsible Officer of any such Person cancelling or amending the prior
certificate of such Person.
| 6. | Amendment Fee. In consideration of this
Amendment and agreements of the Administrative Agent and the Lenders contained herein, the
Borrower shall pay an amendment fee (the “Second Amendment Fee”)
in cash to the Administrative Agent, for the account of the Lenders, in the amount of 0.25%
of the aggregate principal amount of Loans prepaid or repaid from time to time, due and payable
on the date of each such prepayment or repayment. The Second Amendment Fee is in addition
to, and not in lieu of, the portion of the Amendment Fee (as defined in the First Amendment)
that, pursuant to Section 7(ii) of the First Amendment, is also due and payable
with respect to the aggregate principal amount of Loans prepaid or repaid from time to time,
on the date of each such prepayment or repayment. |
| 7. | Representations and Warranties. Each
of the Obligors hereby represents and warrants: |
| (a) | The execution, delivery and performance
by such Obligor of this Amendment and the documents, instruments and agreements executed
in connection herewith (collectively, the “Amendment Documents”),
such Obligor’s consummation of the transactions contemplated by the Amendment Documents
and performance under the Amendment Documents do not and will not (i) conflict with
any of its organizational, constitutional or constituent documents; (ii) contravene,
conflict with, constitute a default under or violate any Law except as would not reasonably
be expected to have a Material Adverse Effect; (iii) contravene, conflict or violate
any applicable order, writ, judgment, injunction, decree, determination or award of any Governmental
Authority by which it or any of its property or assets may be bound or affected except as
would not reasonably be expected to have a Material Adverse Effect; (iv) require any
action by, filing, registration, or qualification with, or approval of, any Governmental
Authority (except such approval which has already been obtained and is in full force and
effect, or the filing of any UCC financing statement) except where the failure to do so would
not reasonably be expected to have a Material Adverse Effect; or (v) constitute a default
under or conflict with any Material Agreement that, individually or in the aggregate, could
reasonably be expected to result in a Material Adverse Effect. |
| (b) | This Amendment and the other Amendment
Documents have been duly authorized, executed and delivered by such Obligor and constitute
legal, valid and binding agreements of such Obligor, enforceable in accordance with their
terms (subject, as to enforcement, to (x) the effect of applicable bankruptcy, insolvency,
examinership or similar laws affecting the enforcement or creditors’ rights and (y) general
principles of equity). |
| (c) | The execution, delivery and performance
by such Obligor of the Amendment and the other Amendment Documents executed or to be executed
by it is in each case within such Obligor’s powers. |
| (a) | In consideration of this Amendment and
agreements of the Administrative Agent, the Lenders, the RIFA Agent and the Purchasers contained
herein and for other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the Borrower (the “Releasing Party”), on
behalf of itself and its successors, assigns and other legal representatives hereby absolutely,
unconditionally and irrevocably releases, remises and forever discharges the Administrative
Agent, the Lenders, the RIFA Agent, the Purchasers and their respective present and former
shareholders, affiliates, subsidiaries, divisions, predecessors, directors, officers, attorneys,
employees, agents and other representatives, in each case solely in their capacities relative
to the Lenders and not in any other capacity such party may have relative to the Releasing
Party (the Administrative Agent, each Lender and all such other Persons being hereinafter
referred to collectively as the “Releasees” and individually as
a “Releasee”), of and from all demands, actions, causes of action,
suits, covenants, contracts, controversies, agreements, promises, sums of money, accounts,
bills, reckonings, damages and any and all other claims, counterclaims, defenses, rights
of set-off, demands and liabilities whatsoever of every name and nature, known or unknown,
suspected or unsuspected, both at law and in equity, which the Borrower or any of its successors,
assigns or other legal representatives may now or hereafter own, hold, have or claim to have
against the Releasees or any of them for, upon, or by reason of any circumstance, action,
cause or thing whatsoever which arises at any time on or prior to the Second Amendment Effective
Date, for or on account of, or in relation to, or in any way in connection with the Credit
Agreement or any of the other Loan Documents or transactions thereunder (any of the foregoing,
a “Claim” and collectively, the “Claims”).
The Releasing Party expressly acknowledges and agrees, with respect to the Claims, that it
waives, to the fullest extent permitted by applicable law, any and all provisions, rights
and benefits conferred by any applicable U.S. federal or state law, or any principle of U.S.
common law, that would otherwise limit a release or discharge of any unknown Claims pursuant
to this Section 8. Furthermore, the Releasing Party hereby absolutely, unconditionally
and irrevocably covenants and agrees with and in favor of each Releasee that it will not
sue (at law, in equity, in any regulatory proceeding or otherwise) any Releasee on the basis
of any Claim released and/or discharged by the Releasing Parties pursuant to this Section 8.
The foregoing release, covenant and waivers of this Section 8 shall survive and remain
in full force and effect regardless of the consummation of the transactions contemplated
hereby, the repayment or prepayment of any of the Loans, or the termination of the Credit
Agreement, this Amendment, any other Loan Document, the Revenue Interest Financing Agreement
or any provision hereof or thereof. |
| (b) | Each Releasing Party understands, acknowledges
and agrees that its release set forth above may be pleaded as a full and complete defense
and may be used as a basis for an injunction against any action, suit or other proceeding
which may be instituted, prosecuted or attempted in breach of the provisions of such release. |
| (c) | Each Releasing Party agrees that no fact,
event, circumstance, evidence or transaction which could now be asserted or which may hereafter
be discovered shall affect in any manner the final, absolute and unconditional nature
of the release set forth above. |
| 9. | Fees and Expenses. The Borrower agrees
to pay on demand (a) all out-of-pocket fees, costs and expenses of the Administrative
Agent and the Lenders accrued prior to the Second Amendment Effective Date and (b) all
out-of-pocket fees, costs and expenses of the Administrative Agent and the Lenders incurred
in connection with the preparation, execution and delivery of (i) this Amendment, (ii) any
Amendment Documents, other Loan Documents or other post-closing amendments, agreements, arrangements
or documentation, (iii) any other instruments and documents to be delivered hereunder
or thereunder, in each case of clauses (a) and (b), including the fees and expenses
of Sullivan & Cromwell LLP, as outside counsel to Administrative Agent and the Oaktree
Lenders, and Shearman & Sterling LLP, as outside counsel to Q Boost Holding LLC,
with respect thereto. |
| (a) | Except as otherwise expressly provided
herein, (i) all provisions of the Credit Agreement and the other Loan Documents remain
in full force and effect and (ii) the execution, delivery and effectiveness of this
Amendment shall not operate as a waiver of any right, power or remedy of the Administrative
Agent or the Lenders, nor constitute a waiver of any provision of the Existing Credit Agreement
or any of the Loan Documents. None of the Administrative Agent or any Lender is under any
obligation to enter into this Amendment. The entering into of this Amendment by such parties
shall not be deemed to limit or hinder any rights of any such party under the Loan Documents,
nor shall it be deemed to create or infer a course of dealing between any such party, on
the one hand, and the Borrower, on the other hand, with regard to any provision of the Loan
Documents. |
| (b) | This Amendment shall constitute a Loan
Document. |
| (c) | This Amendment may be executed in several
counterparts and by each party on a separate counterpart, each of which when so executed
and delivered shall be an original, and all of which together shall constitute one instrument.
An executed facsimile or electronic copy of this Amendment shall be effective for all purposes
as an original hereof. The words “execution,” “execute”, “signed,”
“signature,” and words of like import in or related to any document to be signed
in connection with this Amendment and the transactions contemplated hereby (including without
limitation assignments, assumptions, amendments, waivers and consents) shall be deemed to
include electronic signatures, the electronic matching of assignment terms and contract formations
on electronic platforms approved by the Administrative Agent, or the keeping of records in
electronic form, each of which shall be of the same legal effect, validity or enforceability
as a manually executed signature or the use of a paper-based recordkeeping system, as the
case may be, to the extent and as provided for in any applicable law, including the Federal
Electronic Signatures in Global and National Commerce Act, the New York State Electronic
Signatures and Records Act, or any other similar state laws based on the Uniform Electronic
Transactions Act. |
| (d) | This Amendment expresses the entire understanding
of the parties with respect to the amendments contemplated hereby. No prior negotiations
or discussions shall limit, modify, or otherwise affect the provisions hereof. |
| (e) | This Amendment and the rights and obligations
of the parties hereunder shall be governed by, and construed and enforced in accordance with,
the law of the State of New York, excluding conflict of laws principles that would cause
the application of laws of any other jurisdiction. |
| (f) | Save to the extent expressly provided
for in any Loan Document to the contrary, all judicial proceedings arising in or under or
related to this Amendment may be brought in any state or federal court located in the State
of New York. By execution and delivery of this Amendment, each party hereto generally and
unconditionally: (a) consents to nonexclusive personal jurisdiction in New York County,
State of New York; (b) waives any objection as to jurisdiction or venue in New York
County, State of New York; (c) agrees not to assert any defense based on lack of jurisdiction
or venue in the aforesaid courts; and (d) irrevocably agrees to be bound by any judgment
rendered thereby in connection with this Amendment. Service of process on any party hereto
in any action arising out of or relating to this Amendment shall be effective if given in
accordance with the requirements for notice set forth in Section 14.02 of the Credit
Agreement, and shall be deemed effective and received as set forth in Section 14.02
of the Credit Agreement. Nothing herein shall affect the right to serve process in any other
manner permitted by law or shall limit the right of either party to bring proceedings in
the courts of any other jurisdiction. |
| (g) | Because disputes arising in connection
with complex financial transactions are most quickly and economically resolved by an experienced
and expert Person and the parties wish applicable state and federal laws to apply (rather
than arbitration rules), the parties desire that their disputes be resolved by a judge applying
such applicable laws. EACH OF THE BORROWER, ADMINISTRATIVE AGENT AND LENDER SPECIFICALLY
WAIVES ANY RIGHT IT MAY HAVE TO TRIAL BY JURY OF ANY CAUSE OF ACTION, CLAIM, CROSS-CLAIM,
COUNTERCLAIM, THIRD PARTY CLAIM OR ANY OTHER CLAIM (COLLECTIVELY, “CLAIMS”) ASSERTED
BY THE BORROWER AGAINST ADMINISTRATIVE AGENT, LENDER OR THEIR RESPECTIVE ASSIGNEE OR BY ADMINISTRATIVE
AGENT, LENDER OR THEIR RESPECTIVE ASSIGNEE AGAINST THE BORROWER. This waiver extends to all
such Claims, including Claims that involve Persons other than Administrative Agent, the Borrower
and Lender; Claims that arise out of or are in any way connected to the relationship among
the Borrower, Administrative Agent and Lender; and any Claims for damages, breach of contract,
tort, specific performance, or any equitable or legal relief of any kind, arising out of
this Amendment or any other Loan Document. |
| (h) | This Amendment and its contents shall
be subject to the indemnification and severability provisions of the Existing Credit Agreement,
mutatis mutandis. |
[SIGNATURE PAGES FOLLOW]
IN WITNESS WHEREOF, the parties
hereto have caused this Amendment to be duly executed and delivered as of the day and year first above written.
|
BORROWER: |
|
|
|
BIOXCEL THERAPEUTICS, INC. |
|
|
|
By: |
/s/
Vimal Mehta |
|
Name: |
Vimal Mehta |
|
Title: |
Chief Executive Officer |
|
Address for Notices: |
|
555 Long Wharf Drive, 12th Floor |
|
New Haven, CT |
|
06511 |
|
|
|
With a copy to (which shall not constitute notice): |
|
|
|
Cooley LLP |
|
3 Embarcadero Center |
|
20th Floor |
|
San Francisco, CA 94111-4004 |
|
Attn: Mischi a Marca |
|
Email: gmamarca@cooley.com |
[Signature Page to Second
Amendment to Credit Agreement and Guaranty]
|
SUBSIDIARY GUARANTORS: |
|
|
|
ONKOSXCEL THERAPEUTICS,
LLC |
|
|
|
By: |
/s/
Vimal Mehta |
|
Name: |
Vimal Mehta |
|
Title: |
Chief Executive Officer |
|
|
|
|
ONKOSXCEL EMPLOYEE HOLDINGS, LLC |
|
|
|
|
By: |
/s/
Vimal Mehta |
|
Name: |
Vimal Mehta |
|
Title: |
Chief Executive Officer |
|
Address for Notices: |
|
555 Long Wharf Drive, 12th Floor |
|
New Haven, CT |
|
06511 |
|
|
|
With a copy to (which shall not constitute notice): |
|
|
|
Cooley LLP |
|
3 Embarcadero Center |
|
20th Floor |
|
San Francisco, CA 94111-4004 |
|
Attn: Mischi a Marca |
|
Email: gmamarca@cooley.com |
[Signature Page to Second
Amendment to Credit Agreement and Guaranty]
|
ADMINISTRATIVE AGENT: |
|
|
|
OAKTREE FUND ADMINISTRATION, LLC |
|
|
|
By: |
Oaktree Capital Management, L.P. |
|
Its: |
Managing Member |
|
|
|
By: |
/s/ Matthew Stewart |
|
|
Name: |
Matthew
Stewart |
|
|
Title: |
Managing Director |
|
|
|
By: |
/s/ Mary Gallegly |
|
|
Name: |
Mary Gallegly |
|
|
Title: |
Managing Director |
|
Address for Notices: |
|
Oaktree Fund Administration, LLC |
|
333 S. Grand Avenue, 28th Fl. |
|
Los Angeles, CA 90071 |
|
Attn: |
Oaktree Agency |
|
Email: |
Oaktreeagency@alterdomus.com |
|
|
|
With a copy to: |
|
Oaktree Capital Management, L.P. |
|
333 S. Grand Avenue, 28th Fl. |
|
Los Angeles, CA 90071 |
|
Attn: |
Aman Kumar |
|
Email: |
AmKumar@oaktreecapital.com |
|
|
|
With a copy to: |
|
Sullivan & Cromwell LLP |
|
125 Broad Street |
|
New York, NY 10004 |
|
Attn: |
Ari B. Blaut |
|
Email: |
blauta@sullcrom.com |
[Signature Page to
Second Amendment to Credit Agreement and Guaranty]
|
LENDERS: |
|
|
|
OAKTREE-TCDRS STRATEGIC CREDIT, LLC |
|
|
|
By: |
Oaktree Capital Management, L.P. |
|
Its: |
Manager |
|
|
|
By: |
/s/ Matthew Stewart |
|
|
Name: |
Matthew
Stewart |
|
|
Title: |
Managing Director |
|
|
|
By: |
/s/ Mary Gallegly |
|
|
Name: |
Mary Gallegly |
|
|
Title: |
Managing Director |
|
Address for Notices: |
|
Oaktree Fund Administration, LLC |
|
333 S. Grand Avenue, 28th Fl. |
|
Los Angeles, CA 90071 |
|
Attn: |
Oaktree Agency |
|
Email: |
Oaktreeagency@alterdomus.com |
|
|
|
With a copy to: |
|
Oaktree Capital Management, L.P. |
|
333 S. Grand Avenue, 28th Fl. |
|
Los Angeles, CA 90071 |
|
Attn: |
Aman Kumar |
|
Email: |
AmKumar@oaktreecapital.com |
|
|
|
With a copy to: |
|
Sullivan & Cromwell LLP |
|
125 Broad Street |
|
New York, NY 10004 |
|
Attn: |
Ari B. Blaut |
|
Email: |
blauta@sullcrom.com |
[Signature Page to Second Amendment to
Credit Agreement and Guaranty]
|
OAKTREE-FORREST MULTI-STRATEGY, LLC |
|
|
|
By: |
Oaktree Capital Management, L.P. |
|
Its: |
Manager |
|
|
|
By: |
/s/ Matthew Stewart |
|
|
Name: |
Matthew
Stewart |
|
|
Title: |
Managing Director |
|
|
|
By: |
/s/ Mary Gallegly |
|
|
Name: |
Mary Gallegly |
|
|
Title: |
Managing Director |
|
Address for Notices: |
|
Oaktree Fund Administration, LLC |
|
333 S. Grand Avenue, 28th Fl. |
|
Los Angeles, CA 90071 |
|
Attn: |
Oaktree Agency |
|
Email: |
Oaktreeagency@alterdomus.com |
|
|
|
With a copy to: |
|
Oaktree Capital Management, L.P. |
|
333 S. Grand Avenue, 28th Fl. |
|
Los Angeles, CA 90071 |
|
Attn: |
Aman Kumar |
|
Email: |
AmKumar@oaktreecapital.com |
|
|
|
With a copy to: |
|
Sullivan & Cromwell LLP |
|
125 Broad Street |
|
New York, NY 10004 |
|
Attn: |
Ari B. Blaut |
|
Email: |
blauta@sullcrom.com |
[Signature Page to Second Amendment to
Credit Agreement and Guaranty]
|
OAKTREE-TBMR STRATEGIC CREDIT FUND C, LLC |
|
|
|
By: |
Oaktree Capital Management, L.P. |
|
Its: |
Manager |
|
|
|
By: |
/s/ Matthew Stewart |
|
|
Name: |
Matthew
Stewart |
|
|
Title: |
Managing Director |
|
|
|
By: |
/s/ Mary Gallegly |
|
|
Name: |
Mary Gallegly |
|
|
Title: |
Managing Director |
|
Address for Notices: |
|
Oaktree Fund Administration, LLC |
|
333 S. Grand Avenue, 28th Fl. |
|
Los Angeles, CA 90071 |
|
Attn: |
Oaktree Agency |
|
Email: |
Oaktreeagency@alterdomus.com |
|
|
|
With a copy to: |
|
Oaktree Capital Management, L.P. |
|
333 S. Grand Avenue, 28th Fl. |
|
Los Angeles, CA 90071 |
|
Attn: |
Aman Kumar |
|
Email: |
AmKumar@oaktreecapital.com |
|
|
|
With a copy to: |
|
Sullivan & Cromwell LLP |
|
125 Broad Street |
|
New York, NY 10004 |
|
Attn: |
Ari B. Blaut |
|
Email: |
blauta@sullcrom.com |
[Signature Page to Second Amendment to
Credit Agreement and Guaranty]
|
OAKTREE-TBMR STRATEGIC CREDIT FUND F, LLC |
|
|
|
By: |
Oaktree Capital Management, L.P. |
|
Its: |
Manager |
|
|
|
By: |
/s/ Matthew Stewart |
|
|
Name: |
Matthew
Stewart |
|
|
Title: |
Managing Director |
|
|
|
By: |
/s/ Mary Gallegly |
|
|
Name: |
Mary Gallegly |
|
|
Title: |
Managing Director |
|
Address for Notices: |
|
Oaktree Fund Administration, LLC |
|
333 S. Grand Avenue, 28th Fl. |
|
Los Angeles, CA 90071 |
|
Attn: |
Oaktree Agency |
|
Email: |
Oaktreeagency@alterdomus.com |
|
|
|
With a copy to: |
|
Oaktree Capital Management, L.P. |
|
333 S. Grand Avenue, 28th Fl. |
|
Los Angeles, CA 90071 |
|
Attn: |
Aman Kumar |
|
Email: |
AmKumar@oaktreecapital.com |
|
|
|
With a copy to: |
|
Sullivan & Cromwell LLP |
|
125 Broad Street |
|
New York, NY 10004 |
|
Attn: |
Ari B. Blaut |
|
Email: |
blauta@sullcrom.com |
[Signature Page to Second Amendment to
Credit Agreement and Guaranty]
|
OAKTREE-TBMR STRATEGIC CREDIT FUND G, LLC |
|
|
|
By: |
Oaktree Capital Management, L.P. |
|
Its: |
Manager |
|
|
|
By: |
/s/ Matthew Stewart |
|
|
Name: |
Matthew
Stewart |
|
|
Title: |
Managing Director |
|
|
|
By: |
/s/ Mary Gallegly |
|
|
Name: |
Mary Gallegly |
|
|
Title: |
Managing Director |
|
Address for Notices: |
|
Oaktree Fund Administration, LLC |
|
333 S. Grand Avenue, 28th Fl. |
|
Los Angeles, CA 90071 |
|
Attn: |
Oaktree Agency |
|
Email: |
Oaktreeagency@alterdomus.com |
|
|
|
With a copy to: |
|
Oaktree Capital Management, L.P. |
|
333 S. Grand Avenue, 28th Fl. |
|
Los Angeles, CA 90071 |
|
Attn: |
Aman Kumar |
|
Email: |
AmKumar@oaktreecapital.com |
|
|
|
With a copy to: |
|
Sullivan & Cromwell LLP |
|
125 Broad Street |
|
New York, NY 10004 |
|
Attn: |
Ari B. Blaut |
|
Email: |
blauta@sullcrom.com |
[Signature Page to Second Amendment to
Credit Agreement and Guaranty]
|
OAKTREE-TSE 16 STRATEGIC CREDIT, LLC |
|
|
|
By: |
Oaktree Capital Management, L.P. |
|
Its: |
Manager |
|
|
|
By: |
/s/ Matthew Stewart |
|
|
Name: |
Matthew
Stewart |
|
|
Title: |
Managing Director |
|
|
|
By: |
/s/ Mary Gallegly |
|
|
Name: |
Mary Gallegly |
|
|
Title: |
Managing Director |
|
Address for Notices: |
|
Oaktree Fund Administration, LLC |
|
333 S. Grand Avenue, 28th Fl. |
|
Los Angeles, CA 90071 |
|
Attn: |
Oaktree Agency |
|
Email: |
Oaktreeagency@alterdomus.com |
|
|
|
With a copy to: |
|
Oaktree Capital Management, L.P. |
|
333 S. Grand Avenue, 28th Fl. |
|
Los Angeles, CA 90071 |
|
Attn: |
Aman Kumar |
|
Email: |
AmKumar@oaktreecapital.com |
|
|
|
With a copy to: |
|
Sullivan & Cromwell LLP |
|
125 Broad Street |
|
New York, NY 10004 |
|
Attn: |
Ari B. Blaut |
|
Email: |
blauta@sullcrom.com |
[Signature Page to Second Amendment to
Credit Agreement and Guaranty]
|
INPRS STRATEGIC CREDIT HOLDINGS, LLC |
|
|
|
By: |
Oaktree Capital Management, L.P. |
|
Its: |
Manager |
|
|
|
By: |
/s/ Matthew Stewart |
|
|
Name: |
Matthew
Stewart |
|
|
Title: |
Managing Director |
|
|
|
By: |
/s/ Mary Gallegly |
|
|
Name: |
Mary Gallegly |
|
|
Title: |
Managing Director |
|
Address for Notices: |
|
Oaktree Fund Administration, LLC |
|
333 S. Grand Avenue, 28th Fl. |
|
Los Angeles, CA 90071 |
|
Attn: |
Oaktree Agency |
|
Email: |
Oaktreeagency@alterdomus.com |
|
|
|
With a copy to: |
|
Oaktree Capital Management, L.P. |
|
333 S. Grand Avenue, 28th Fl. |
|
Los Angeles, CA 90071 |
|
Attn: |
Aman Kumar |
|
Email: |
AmKumar@oaktreecapital.com |
|
|
|
With a copy to: |
|
Sullivan & Cromwell LLP |
|
125 Broad Street |
|
New York, NY 10004 |
|
Attn: |
Ari B. Blaut |
|
Email: |
blauta@sullcrom.com |
[Signature Page to Second Amendment to
Credit Agreement and Guaranty]
|
OAKTREE SPECIALTY LENDING CORPORATION |
|
|
|
By: |
Oaktree Fund Advisors, LLC |
|
Its: |
Investment Adviser |
|
|
|
By: |
/s/ Matthew Stewart |
|
|
Name: |
Matthew
Stewart |
|
|
Title: |
Managing Director |
|
|
|
By: |
/s/ Mary Gallegly |
|
|
Name: |
Mary Gallegly |
|
|
Title: |
Managing Director |
|
Address for Notices: |
|
Oaktree Fund Administration, LLC |
|
333 S. Grand Avenue, 28th Fl. |
|
Los Angeles, CA 90071 |
|
Attn: |
Oaktree Agency |
|
Email: |
Oaktreeagency@alterdomus.com |
|
|
|
With a copy to: |
|
Oaktree Capital Management, L.P. |
|
333 S. Grand Avenue, 28th Fl. |
|
Los Angeles, CA 90071 |
|
Attn: |
Aman Kumar |
|
Email: |
AmKumar@oaktreecapital.com |
|
|
|
With a copy to: |
|
Sullivan & Cromwell LLP |
|
125 Broad Street |
|
New York, NY 10004 |
|
Attn: |
Ari B. Blaut |
|
Email: |
blauta@sullcrom.com |
[Signature Page to Second Amendment to
Credit Agreement and Guaranty]
|
OAKTREE STRATEGIC CREDIT FUND |
|
|
|
By: |
Oaktree Fund Advisors, LLC |
|
Its: |
Investment Adviser |
|
|
|
By: |
/s/ Matthew Stewart |
|
|
Name: |
Matthew
Stewart |
|
|
Title: |
Managing Director |
|
|
|
By: |
/s/ Mary Gallegly |
|
|
Name: |
Mary Gallegly |
|
|
Title: |
Managing Director |
|
Address for Notices: |
|
Oaktree Fund Administration, LLC |
|
333 S. Grand Avenue, 28th Fl. |
|
Los Angeles, CA 90071 |
|
Attn: |
Oaktree Agency |
|
Email: |
Oaktreeagency@alterdomus.com |
|
|
|
With a copy to: |
|
Oaktree Capital Management, L.P. |
|
333 S. Grand Avenue, 28th Fl. |
|
Los Angeles, CA 90071 |
|
Attn: |
Aman Kumar |
|
Email: |
AmKumar@oaktreecapital.com |
|
|
|
With a copy to: |
|
Sullivan & Cromwell LLP |
|
125 Broad Street |
|
New York, NY 10004 |
|
Attn: |
Ari B. Blaut |
|
Email: |
blauta@sullcrom.com |
[Signature Page to Second Amendment to
Credit Agreement and Guaranty]
|
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: |
/s/ Matthew Stewart |
|
|
Name: |
Matthew
Stewart |
|
|
Title: |
Managing Director |
|
|
|
By: |
/s/ Mary Gallegly |
|
|
Name: |
Mary Gallegly |
|
|
Title: |
Managing Director |
|
Address for Notices: |
|
Oaktree Fund Administration, LLC 333 S. |
|
Grand Avenue, 28th Fl. |
|
Los Angeles, CA 90071 |
|
Attn: |
Oaktree Agency |
|
Email: |
Oaktreeagency@alterdomus.com |
|
|
|
With a copy to: |
|
Oaktree Capital Management, L.P. |
|
333 S. Grand Avenue, 28th Fl. |
|
Los Angeles, CA 90071 |
|
Attn: |
Aman Kumar |
|
Email: |
AmKumar@oaktreecapital.com |
|
|
|
With a copy to: |
|
Sullivan & Cromwell LLP |
|
125 Broad Street |
|
New York, NY 10004 |
|
Attn: |
Ari B. Blaut |
|
Email: |
blauta@sullcrom.com |
[Signature Page to Second Amendment to
Credit Agreement and Guaranty]
|
OAKTREE DIVERSIFIED INCOME FUND INC. |
|
|
|
By: |
Oaktree Fund Advisors, LLC |
|
Its: |
Investment Adviser |
|
|
|
By: |
/s/ Matthew Stewart |
|
|
Name: |
Matthew
Stewart |
|
|
Title: |
Managing Director |
|
|
|
By: |
/s/ Mary Gallegly |
|
|
Name: |
Mary Gallegly |
|
|
Title: |
Managing Director |
|
Address for Notices: |
|
Oaktree Fund Administration, LLC |
|
333 S. Grand Avenue, 28th Fl. |
|
Los Angeles, CA 90071 |
|
Attn: |
Oaktree Agency |
|
Email: |
Oaktreeagency@alterdomus.com |
|
|
|
With a copy to: |
|
Oaktree Capital Management, L.P. |
|
333 S. Grand Avenue, 28th Fl. |
|
Los Angeles, CA 90071 |
|
Attn: |
Aman Kumar |
|
Email: |
AmKumar@oaktreecapital.com |
|
|
|
With a copy to: |
|
Sullivan & Cromwell LLP |
|
125 Broad Street |
|
New York, NY 10004 |
|
Attn: |
Ari B. Blaut |
|
Email: |
blauta@sullcrom.com |
[Signature Page to Second Amendment to
Credit Agreement and Guaranty]
|
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 GP II, L.P. |
|
Its: |
Managing Member |
|
|
|
By: |
/s/ Matthew Stewart |
|
|
Name: |
Matthew
Stewart |
|
|
Title: |
Managing Director |
|
|
|
By: |
/s/ Mary Gallegly |
|
|
Name: |
Mary Gallegly |
|
|
Title: |
Managing Director |
|
Address for Notices: |
|
Oaktree Fund Administration, LLC 333 S. |
|
Grand Avenue, 28th Fl. |
|
Los Angeles, CA 90071 |
|
Attn: |
Oaktree Agency |
|
Email: |
Oaktreeagency@alterdomus.com |
|
|
|
With a copy to: |
|
Oaktree Capital Management, L.P. |
|
333 S. Grand Avenue, 28th Fl. |
|
Los Angeles, CA 90071 |
|
Attn: |
Aman Kumar |
|
Email: |
AmKumar@oaktreecapital.com |
|
|
|
With a copy to: |
|
Sullivan & Cromwell LLP |
|
125 Broad Street |
|
New York, NY 10004 |
|
Attn: |
Ari B. Blaut |
|
Email: |
blauta@sullcrom.com |
[Signature Page to Second Amendment to
Credit Agreement and Guaranty]
|
Oaktree LSL Fund Holdings EURRC S.à r.l. |
|
26A, boulevard Royal L-2449 |
|
Luxembourg, Grand Duchy of Luxembourg |
|
R.C.S Luxembourg Number: B269245 |
|
|
|
By: |
/s/ Martin Eckel |
|
|
Name: |
Martin
Eckel |
|
|
Title: |
Manager |
|
|
|
By: |
/s/ Flora Verrecchia |
|
|
Name: |
Flora Verrecchia |
|
|
Title: |
Manager |
|
Address for Notices: |
|
Oaktree Fund Administration, LLC |
|
333 S. Grand Avenue, 28th Fl. |
|
Los Angeles, CA 90071 |
|
Attn: |
Oaktree Agency |
|
Email: |
Oaktreeagency@alterdomus.com |
|
|
|
With a copy to: |
|
Oaktree Capital Management, L.P. |
|
333 S. Grand Avenue, 28th Fl. |
|
Los Angeles, CA 90071 |
|
Attn: |
Aman Kumar |
|
Email: |
AmKumar@oaktreecapital.com |
|
|
|
With a copy to: |
|
Sullivan & Cromwell LLP |
|
125 Broad Street |
|
New York, NY 10004 |
|
Attn: |
Ari B. Blaut |
|
Email: |
blauta@sullcrom.com |
[Signature Page to Second Amendment to
Credit Agreement and Guaranty]
|
OAKTREE LSL FUND DELAWARE HOLDINGS EURRC, L.P. |
|
|
|
By: |
Oaktree Life Sciences Lending Fund GP, L.P. |
|
Its: |
General Partner |
|
|
|
|
By: |
Oaktree Life Sciences Lending Fund GP Ltd. |
|
Its: |
General Partner |
|
|
|
|
By: |
Oaktree Capital Management, L.P. |
|
Its: |
Director |
|
|
|
By: |
/s/ Matthew Stewart |
|
|
Name: |
Matthew
Stewart |
|
|
Title: |
Managing Director |
|
|
|
By: |
/s/ Mary Gallegly |
|
|
Name: |
Mary Gallegly |
|
|
Title: |
Managing Director |
|
Address for Notices: |
|
Oaktree Fund Administration, LLC 333 S. |
|
Grand Avenue, 28th Fl. |
|
Los Angeles, CA 90071 |
|
Attn: |
Oaktree Agency |
|
Email: |
Oaktreeagency@alterdomus.com |
|
|
|
With a copy to: |
|
Oaktree Capital Management, L.P. |
|
333 S. Grand Avenue, 28th Fl. |
|
Los Angeles, CA 90071 |
|
Attn: |
Aman Kumar |
|
Email: |
AmKumar@oaktreecapital.com |
|
|
|
With a copy to: |
|
Sullivan & Cromwell LLP |
|
125 Broad Street |
|
New York, NY 10004 |
|
Attn: |
Ari B. Blaut |
|
Email: |
blauta@sullcrom.com |
[Signature Page to Second Amendment to
Credit Agreement and Guaranty]
|
Q BOOST HOLDING LLC |
|
|
|
By: |
/s/
Ahmed Nasser Al-Abdulghani |
|
Name: |
Ahmed Nasser Al-Abdulghani |
|
Title: |
Director |
|
Address for Notices: |
|
c/o Qatar Investment Authority |
|
Ooredoo Tower (Building 14) |
|
Al Dafna Street (Street 801) |
|
Al Dafna (Zone 61) Doha, Qatar |
|
|
|
A copy (which shall not constitute notice)
shall also be sent to: |
|
|
|
General Counsel |
|
Qatar Investment Authority |
|
Ooredoo Tower (Building 14) |
|
Al Dafna Street (Street 801) |
|
Al Dafna (Zone 61) |
|
Doha, Qatar |
|
Email: notices.legal@qia.qa |
|
|
|
A copy (which shall not constitute notice)
shall also be sent to: |
|
Shearman & Sterling LLP |
|
535 Mission Street, 25th Floor |
|
San Francisco, CA 94105 |
|
Attn: |
Michael S. Dorf |
|
|
Tomasz Kulawik |
|
Email: |
mdorf@shearman.com |
|
|
tomasz.kulawik@shearman.com |
[Signature Page to Second
Amendment to Credit Agreement and Guaranty]
EXHIBIT A
CREDIT AGREEMENT AND GUARANTY
dated as of April 19, 2022
and
amended as of December 5, 2023
by and among
BIOXCEL THERAPEUTICS, INC.,
as the Borrower,
THE SUBSIDIARY GUARANTORS FROM TIME TO TIME
PARTY HERETO,
as the Guarantors,
THE LENDERS FROM TIME TO TIME PARTY HERETO
as the Lenders,
and
OAKTREE FUND ADMINISTRATION, LLC,
as the Administrative Agent
U.S. $135,000,000202,319,447
TABLE OF CONTENTS
SECTION 1. DEFINITIONS |
1 |
1.01 |
Certain Defined Terms |
1 |
1.02 |
Accounting Terms and Principles |
3835 |
1.03 |
Interpretation |
36 |
1.04 |
Division |
4037 |
SECTION 2. THE COMMITMENT AND THE LOANS;
EQUITY INVESTMENT |
4037 |
2.01 |
Loans |
4037 |
2.02 |
Borrowing Procedures |
38 |
2.03 |
Funding of Borrowings |
4138 |
2.04 |
Notes |
38 |
2.05 |
Use of Proceeds |
38 |
2.06 |
Ticking Fees |
38 |
2.07 |
Extension of Maturity Date |
39 |
2.08 |
Equity Investment |
39 |
SECTION 3. PAYMENTS OF PRINCIPAL AND INTEREST,
ETC. |
4340 |
3.01 |
Scheduled Repayments and Prepayments Generally; Application |
4340 |
3.02 |
Interest |
40 |
3.03 |
Prepayments |
4441 |
3.04 |
Commitment Termination |
43 |
SECTION 4. PAYMENTS, ETC. |
4744 |
4.01 |
Payments |
4744 |
4.02 |
Computations |
4845 |
4.03 |
Set-Off |
4845 |
SECTION 5. YIELD PROTECTION, TAXES, ETC. |
4945 |
5.01 |
Additional Costs |
4945 |
5.02 |
Illegality |
5047 |
5.03 |
Taxes |
47 |
5.04 |
Mitigation Obligations |
5450 |
5.05 |
Survival |
5450 |
SECTION 6. CONDITIONS |
52 |
6.01 |
Conditions to Closing |
52 |
6.02 |
Conditions to the Borrowing of All Loans |
55 |
SECTION 7. REPRESENTATIONS AND WARRANTIES |
5957 |
7.01 |
Power and Authority |
57 |
7.02 |
Authorization; Enforceability |
6057 |
7.03 |
Governmental and Other Approvals; No Conflicts |
6057 |
7.04 |
Financial Statements; Material Adverse Change |
58 |
7.05 |
Properties |
58 |
7.06 |
No Actions or Proceedings |
6360 |
7.07 |
Compliance with Laws and Agreements |
61 |
7.08 |
Taxes |
61 |
7.09 |
Full Disclosure |
61 |
7.10 |
Investment Company Act and Margin Stock Regulation |
6562 |
7.11 |
Solvency |
62 |
7.12 |
Subsidiaries |
62 |
7.13 |
Indebtedness and Liens |
62 |
7.14 |
Material Agreements |
62 |
7.15 |
Restrictive Agreements |
62 |
7.16 |
Real Property |
62 |
7.17 |
Pension Matters |
6663 |
7.18 |
Regulatory Approvals |
63 |
7.19 |
Transactions with Affiliates |
64 |
7.20 |
OFAC; Anti-Terrorism Laws |
64 |
7.21 |
Anti-Corruption |
65 |
7.22 |
BXCL 701 Assets |
65 |
7.23 |
Priority of Obligations |
65 |
7.24 |
Royalty and Other Payments |
65 |
7.25 |
Non-Competes |
65 |
7.26 |
Security Interest |
65 |
7.27 |
Data Privacy |
6965 |
SECTION 8. AFFIRMATIVE COVENANTS |
65 |
8.01 |
Financial Statements and Other Information |
66 |
8.02 |
Notices of Material Events |
68 |
8.03 |
Existence |
69 |
8.04 |
Payment of Obligations |
69 |
8.05 |
Insurance |
70 |
8.06 |
Books and Records; Inspection Rights |
70 |
8.07 |
Compliance with Laws and Other Obligations |
70 |
8.08 |
Maintenance of Properties, Etc. |
71 |
8.09 |
Licenses |
71 |
8.10 |
Use of Proceeds |
71 |
8.11 |
Certain Obligations Respecting Subsidiaries; Further
Assurances |
71 |
8.12 |
Termination of Non-Permitted Liens |
73 |
8.13 |
Board Materials; Oaktree Lender Board Observer |
7973 |
8.14 |
[Reserved] |
8074 |
8.15 |
Maintenance of Regulatory Approvals, Contracts, Intellectual
Property, Etc. |
8074 |
8.16 |
ERISA Compliance |
75 |
8.17 |
Cash Management |
75 |
8.18 |
Amendments to Agreements |
8175 |
8.19 |
Post-Closing Obligations |
8175 |
SECTION 9. NEGATIVE COVENANTS |
77 |
9.01 |
Indebtedness |
77 |
9.02 |
Liens |
79 |
9.03 |
Fundamental Changes and Acquisitions |
81 |
9.04 |
Lines of Business |
8781 |
9.05 |
Investments |
81 |
9.06 |
Restricted Payments |
8983 |
9.07 |
Payments of Indebtedness |
9084 |
9.08 |
Change in Fiscal Year |
9084 |
9.09 |
Sales of Assets, Etc. |
9084 |
9.10 |
Transactions with Affiliates |
9286 |
9.11 |
Restrictive Agreements |
9287 |
9.12 |
Modifications and Terminations of Material Agreements
and Organic Documents |
9487 |
9.13 |
Outbound Licenses |
9488 |
9.14 |
Sales and Leasebacks |
9588 |
9.15 |
Hazardous Material |
9588 |
9.16 |
Accounting Changes |
9589 |
9.17 |
Compliance with ERISA |
9589 |
9.18 |
Sanctions; Anti-Corruption Use of Proceeds |
9589 |
9.19 |
BXCL 701 Subsidiary Covenants |
89 |
SECTION 10. FINANCIAL COVENANTS |
9790 |
10.01 |
Minimum Liquidity |
9790 |
10.02 |
Minimum Revenue |
9791 |
SECTION 11. EVENTS OF DEFAULT |
9891 |
11.01 |
Events of Default |
9891 |
11.02 |
Remedies |
10194 |
11.03 |
Additional Remedies |
10295 |
11.04 |
Minimum Revenue Covenant Cure |
10295 |
11.05 |
Payment of Prepayment Fee |
10396 |
SECTION 12. THE ADMINISTRATIVE AGENT |
10497 |
12.01 |
Appointment and Duties |
10497 |
12.02 |
Binding Effect |
10698 |
12.03 |
Use of Discretion |
10698 |
12.04 |
Delegation of Rights and Duties |
10698 |
12.05 |
Reliance and Liability |
10699 |
12.06 |
Administrative Agent Individually |
108100 |
12.07 |
Lender Credit Decision |
108100 |
12.08 |
Expenses; Indemnities |
108100 |
12.09 |
Resignation of the Administrative Agent |
109101 |
12.10 |
Release of Collateral or Guarantors |
110102 |
12.11 |
Additional Secured Parties |
111102 |
12.12 |
Agent May File Proofs of Claim |
111103 |
12.13 |
Acknowledgements of Lenders |
112103 |
SECTION 13. GUARANTY |
114105 |
13.01 |
The Guaranty |
114105 |
13.02 |
Obligations Unconditional |
115106 |
13.05 |
Reinstatement |
118109 |
13.06 |
Subrogation |
118109 |
13.07 |
Remedies |
119110 |
13.08 |
Instrument for the Payment of Money |
119110 |
13.09 |
Continuing Guarantee |
119110 |
13.11 |
General Limitation on Guarantee Obligations |
120111 |
SECTION 14. MISCELLANEOUS |
120111 |
14.01 |
No Waiver |
120111 |
14.02 |
Notices |
121111 |
14.03 |
Expenses, Indemnification, Etc. |
121112 |
14.04 |
Amendments, Etc. |
123113 |
14.05 |
Successors and Assigns |
123114 |
14.06 |
Survival |
126116 |
14.07 |
Captions |
126116 |
14.08 |
Counterparts, Effectiveness |
126116 |
14.09 |
Governing Law |
126116 |
14.10 |
Jurisdiction, Service of Process and Venue |
126117 |
14.11 |
Waiver of Jury Trial |
127117 |
14.12 |
Waiver of Immunity |
127117 |
14.13 |
Entire Agreement |
127117 |
14.14 |
Severability |
128118 |
14.15 |
No Fiduciary Relationship |
128118 |
14.16 |
Confidentiality |
128118 |
14.17 |
Interest Rate Limitation |
129119 |
14.18 |
Judgment Currency |
129119 |
14.19 |
USA PATRIOT Act |
130119 |
14.20 |
Acknowledgement and Consent to Bail-In of Affected
Financial Institutions |
130119 |
SCHEDULES AND EXHIBITS
Schedule 1 |
- |
Loans Schedule |
Schedule 2 |
- |
Products |
Schedule 3 |
- |
Minimum Revenue |
Schedule 4 |
- |
BXCL 701 Assets |
Schedule 7.05(b) |
- |
Certain Intellectual Property |
Schedule 7.06(b) |
|
Environmental Matters |
Schedule 7.08 |
- |
Taxes |
Schedule 7.12 |
- |
Information Regarding Subsidiaries |
Schedule 7.13(a) |
- |
Existing Indebtedness |
Schedule 7.13(b) |
- |
Existing Liens |
Schedule 7.14 |
|
Material Agreements |
Schedule 7.15 |
- |
Restrictive Agreements |
Schedule 7.16 |
- |
Real Property Owned or Leased by Obligors |
Schedule 7.17 |
- |
Pension Matters |
Schedule 7.18(c) |
- |
Adverse Findings |
Schedule 7.19 |
- |
Transactions with Affiliates |
Schedule 7.24 |
- |
Royalties and Other Payments |
Schedule 9.05 |
- |
Existing Investments |
Schedule 9.09 |
- |
Sale of Assets |
Exhibit A |
- |
Form of Note |
Exhibit B |
- |
Form of Borrowing Notice |
Exhibit C |
- |
Form of Guarantee Assumption Agreement |
Exhibit D-1 |
- |
Form of U.S. Tax Compliance Certificate (For Foreign
Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes) |
Exhibit D-2 |
- |
Form of U.S. Tax Compliance Certificate (For Foreign
Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes) |
Exhibit D-3 |
- |
Form of U.S. Tax Compliance Certificate (For Foreign
Participants That Are Partnerships For U.S. Federal Income Tax Purposes) |
Exhibit D-4 |
- |
Form of U.S. Tax Compliance Certificate (For Foreign
Lenders That Are Partnerships For U.S. Federal Income Tax Purposes) |
Exhibit E |
- |
Form of Compliance Certificate |
Exhibit F |
- |
Form of Assignment and Assumption |
Exhibit G |
- |
Form of Landlord Consent |
Exhibit H |
- |
Form of Stock Purchase Agreement |
Exhibit I |
- |
Form of Intercompany Subordination Agreement |
Exhibit J-1 |
- |
Form of Company Warrant |
Exhibit J-2 |
- |
Form of 701 Warrant |
Exhibit K |
- |
Form of Solvency Certificate |
Exhibit L |
- |
Form of Funding Date Certificate |
Exhibit M |
- |
Form of Tranche CD
Revenue Condition Certificate |
CREDIT AGREEMENT AND GUARANTY
CREDIT AGREEMENT AND GUARANTY,
dated as of April 19, 2022, and amended as of November 13, 2023
and December 5, 2023 (this “Agreement”), among BIOXCEL THERAPEUTICS, INC., a Delaware
corporation (the “Borrower”), certain Subsidiaries of the Borrower that may be required to provide Guarantees
from time to time hereunder (each a “Guarantor” and collectively, the “Guarantors”),
the lenders from time to time party hereto (each a “Lender” and collectively, the “Lenders”),
and OAKTREE FUND ADMINISTRATION, LLC, as administrative agent for the Lenders (in such capacity, the “Administrative
Agent”).
WITNESSETH:
WHEREAS, the Borrower has
requested that the Lenders provide a first-lien term loan facility to the Borrower in an aggregate principal amount of $135,000,000202,319,447,
consisting of (a) a $70,000,00072,319,447
Tranche A-1 Term Loan
extended on the Closing Date, (b) a $30,000,000 Tranche A-2 Term Loan extended on the Second Amendment Effective Date, (c) a
$20,000,000 Tranche B Term Loan to be extended on the Applicable Funding Date for the Tranche A
Term Loan, (b) a $35,000,000 Tranche B Term to beextended on the Applicable Funding Date for the Tranche B Term
Loan, (cd) a $30,000,000
Tranche C Term Loan to be extended on the Applicable Funding Date for the Tranche C Term Loan,
and (d) a $50,000,000 Tranche D Term Loan to be extended on the Applicable Funding Date for the Tranche D Term Loan; and
WHEREAS, the Lenders are
willing, on the terms and subject to the conditions set forth herein, to provide such senior secured term loan facility.
NOW, THEREFORE, the parties
hereto agree as follows:
SECTION 1.
DEFINITIONS
1.01 Certain
Defined Terms. As used herein, the following terms have the following respective meanings:
“30-day VWAP”
has the meaning set forth in Section 2.08(a).
“701 Subsidiary
Shared Services Agreement” means the Shared Services Agreement, dated as of April 19, 2022, by and between OnkosXcel
Therapeutics, LLC and the Borrower, as in effect on the date hereof.
“701 Warrant”
means any warrant delivered pursuant to Section 6.02(h), evidenced by an instrument substantially in the form of Exhibit J-2
hereto, as amended, replaced or otherwise modified pursuant to the terms thereof.
“Account Control
Agreement Completion Date” has the meaning set forth in Section 8.19(d).
“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, consolidation, 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 (including
via licensing and in-licensing) 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.
“Affected Financial
Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.
“Affiliate”
means, with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or
is Controlled by or is under common Control with the Person specified; provided that solely with respect to transfers by, or any
other rights afforded to, the QIA Lender or any of its Affiliates, all references to “Affiliate” or “Affiliates”
with respect to the QIA Lender shall include (i) Qatar Investment Authority and any individual, corporation, partnership, firm,
joint venture, investment fund, association, trust, unincorporated association or organization, governmental body or other entity, which
controls, is controlled by or is under common control with, the QIA Lender, and (ii) government entities or instrumentalities of,
or entities that are wholly-owned or controlled by, the State of Qatar, the Amiri Diwan of the State of Qatar or any entities that are
wholly-owned or controlled by any one or more of the foregoing.
“Agreement”
has the meaning set forth in the preamble hereto.
“ANDA”
means (i) (x) an abbreviated new drug application (as defined in the FD&C Act) and (y) any similar application or
functional equivalent relating to any new drug application applicable to or required by any non-U.S. Governmental Authority, and (ii) all
supplements and amendments that may be filed with respect to any of the foregoing.
“Anti-Terrorism
Laws” means any laws relating to terrorism or money laundering, including (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,
including His Majesty’s Treasury, governing, addressing, relating to, or attempting to eliminate, terrorist acts and acts
of war.
“Applicable Availability
Period”, with respect to a tranche of Loans, has the meaning set forth in the Loans Schedule for such tranche of Loans.
“Applicable Funding
Condition”, with respect to a tranche of Loans, has the meaning set forth in the Loans Schedule for such tranche of Loans.
“Applicable Funding
Date”, with respect to a tranche of Loans, means the date during the Applicable Availability Period for such tranche of
Loans on which all conditions precedent set forth in Section 6.02 are satisfied or waived in accordance with the terms of
this Agreement.
“Arm’s
Length Transaction” means, with respect to any transaction, the terms of such transaction shall not be less favorable to
the Borrower or any of its Subsidiaries than commercially reasonable terms that would be obtained in a transaction not while in financial
distress with a Person that is an unrelated third party.
“Asset Sale”
has the meaning set forth in Section 9.09.
“Assignment and
Assumption” means an assignment and assumption entered into by a Lender and an assignee of such Lender substantially in
the form of Exhibit F, or such other form as agreed by the Administrative Agent.
“Bailee Letter”
means a bailee letter substantially in the form of Exhibit F to the Security Agreement.
“Bail-In Action”
means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of
an EEA Financial Institution.
“Bail-In Legislation”
means, (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament
and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the
EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as
amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of
unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration
or other insolvency proceedings).
“Bankruptcy Code”
means Title 11 of the United States Code entitled “Bankruptcy.”
“Beneficial Ownership
Certification” means a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation.
“Beneficial Ownership
Regulation” means 31 C.F.R. § 1010.230.
“Benefit Plan”
means 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 any Obligor or Subsidiary thereof incurs or otherwise has any obligation or liability, contingent or otherwise.
“BioXcel LLC”
means BioXcel LLC, a Delaware limited liability company (formerly known as BioXcel Corporation).
“BioXcel Trademark
Agreement” has the meaning set forth in Section 6.02(j)(ii).
“Board”
means, with respect to any Person, the board of directors or equivalent management or oversight body of such Person or any committee
thereof authorized to act on behalf of such board (or equivalent body).
“Board Observer”
has the meaning set forth in Section 8.13(b).
“Borrower”
has the meaning set forth in the preamble hereto.
“Borrower Party”
has the meaning set forth in Section 14.03(b).
“Borrowing”
means the borrowing of the Loans on each Applicable Funding Date.
“Borrowing Notice”
means a written notice substantially in the form of Exhibit B.
“Business
Day” means a day (other than a Saturday or Sunday) on which commercial banks are not authorized or required to close
in New York City; provided, that with respect to any notices to a QIA Lender or any obligation for a QIA Lender to fund any
Borrowings, “Business Day” shall not include any day on which commercial banks in Qatar are authorized or required to
close.
“BXCL 501”
means a proprietary, orally dissolving thin film formulation of dexmedetomidine, a selective alpha-2a receptor agonist, as further described
on Schedule 2, including all improvements and modifications thereto.
“BXCL 701”
means an orally administered talabostat formulation, as further described on Schedule 2, including all improvements and modifications
thereto, or any other formulation of talabostat.
“BXCL 701 Asset
Contribution” means the contribution by the Borrower of the BXCL 701 Assets to the BXCL 701 Subsidiaries.
“BXCL 701 Assets”
means the assets listed on Schedule 4.
“BXCL 701 Disposition
Proceeds Account” has the meaning set forth in Section 3.03(b)(i)(B).
“BXCL 701 Primary
Disposition Proceeds” means Net Cash Proceeds from a Permitted BXCL 701 Primary Disposition Event; provided that, at the
time that a Permitted BXCL 701 Primary Disposition Event occurs, any Net Cash Proceeds from any exclusive license previously granted
for the use of the Intellectual Property of an Obligor or any of its Subsidiaries for the promotion, manufacture or sale of BXCL 701
should be included in BXCL 701 Primary Disposition Proceeds, except to the extent such proceeds were used for research and development
activities for oncology products and no incentive payments were made with respect to any employee equity incentive or similar plan.
“BXCL 701 Release
Date” means the date on which a Permitted BXCL 701 Release Event occurs.
“BXCL 701 Secondary
Disposition Proceeds” means Net Cash Proceeds from a Permitted BXCL 701 Secondary Disposition Event.
“BXCL 701 Subsidiaries”
means (i) OnkosXcel Therapeutics, LLC and OnkosXcel Employee Holdings, LLC, each a Delaware limited liability company and each formed
solely for the purpose of acquiring, developing and commercializing the BXCL 701 Assets, (ii) any Subsidiary created solely for
the purpose of holding the Equity Interests and/or Indebtedness of the other BXCL 701 Subsidiaries, (iii) each subsidiary of the
foregoing from time to time, and (iv) any IPO Co., in each case of clauses (i) through (iv), so long as such Person is a Subsidiary
of the Borrower. For the avoidance of doubt, any Person that is not a Subsidiary of the Borrower shall not constitute a BXCL 701 Subsidiary.
“Capital Lease
Obligations” means, 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 as in effect on December 31, 2018, subject
to Section 1.02.
“Casualty Event”
means the damage, destruction or condemnation, as the case may be, of property of the Borrower or any of its Subsidiaries in excess of
$2,000,000 (or the Equivalent Amount in other currencies).
“CFC”
means a Subsidiary that is a “controlled foreign corporation” within the meaning of Section 957 of the Code.
“CFC Holding
Company” means any Domestic Subsidiary that owns no material assets (directly or indirectly) other than Equity Interests
and debt of one or more CFCs or Domestic Subsidiaries that are themselves CFC Holding Companies.
“Change of Control”
means 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 and excluding any Permitted Holder) becomes the
“beneficial owner”, directly or indirectly, of thirty-five percent (35%) or more of the Equity Interests of the Borrower
entitled to vote for members of the Board of the Borrower 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 any Permitted Holder
or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities Act) including any Permitted Holder
becomes the “beneficial owner”, directly or indirectly, of forty-five percent (45%) or more of the Equity Interests of the
Borrower entitled to vote for members of the Board of the Borrower on a fully-diluted basis (and taking into account all such Equity
Interests that such Permitted Holder or group has the right to acquire pursuant to any Option Right); (iii) that results in the
sale of all or substantially all of the assets or businesses of the Borrower and its Subsidiaries, taken as a whole, or (iv) that
results in the Borrower’s failure to own, directly or indirectly, beneficially and of record, one-hundred percent (100%) of all
issued and outstanding Equity Interests of each Subsidiary Guarantor (other than, in the case of this clause (iv), as a result of any
Asset Sale permitted by Section 9.09, liquidation or dissolution permitted by Section 9.03(b), the issuance of
any Equity Interests in BXCL 701 Subsidiaries pursuant to Section 9.09(o), a Permitted BXCL 701 Disposition Event, or any
interest in or exercise of any 701 Warrant). For purposes of this definition, “beneficial owner” is as defined in Rules 13d-3
and 13d-5 under the Exchange Act, 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”).
“Claims”
means (and includes) any claim, demand, complaint, grievance, action, application, suit, cause of action, order, charge, indictment,
prosecution, judgement or other similar process, 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.
“Closing
Date” means the date on which the conditions precedent specified in Section 6.01
are satisfied (or waived in accordance with Section 14.04).
“Code”
means the Internal Revenue Code of 1986, as amended from time to time, and the rules and
regulations promulgated thereunder from time to time.
“Collaboration
Agreement Option” means Borrower’s option, pursuant to the Shared Services Agreement, to enter into a collaborative
services agreement with BioXcel LLC by which BioXcel LLC shall perform product identification and related services for the Borrower utilizing
the EvolverAI Platform.
“Collateral”
means any real, personal and mixed property (including Equity Interests), whether tangible or intangible, in which Liens are granted
or purported to be granted to the Administrative Agent as security for the Obligations under any Loan Document on or after the Closing
Date, including future acquired or created assets or property (or collectively, all such real, personal and mixed property, as the context
may require); provided, “Collateral” shall not include (i) Equity Interests of any Subsidiary representing, in the aggregate,
more than sixty-five percent (65%) of the Equity Interests of any CFC or CFC Holding Company or (ii) any assets owned by the BXCL
701 Subsidiaries (but shall include a pledge of 100% of the Equity Interests of the BXCL 701 Subsidiaries that are directly owned by
the Borrower or any of the Borrower’s other Subsidiaries).
“Commercial Supply
Agreement” means the commercial supply agreement, dated as of April 1, 2022, by and between the Borrower and ARx,
LLC, as it may be amended or modified from time to time in accordance with the terms hereof.
“Commitment”
means, with respect to each Lender, the obligation of such Lender to make Loans to the Borrower on each Applicable Funding Date in accordance
with the terms and conditions of this Agreement, which commitment is in the amount set forth opposite such Lender’s name on Schedule
1 under the caption “Applicable Commitment”, as such Schedule may be amended from time to time pursuant to an Assignment
and Assumption or otherwise. The aggregate amount of Commitments on the date of this Agreement equals
$135,000,000outstanding on the Second Amendment Effective
Date (after giving effect to the Second Amendment) equals $100,000,000.
“Commitment Termination
Date” means (a) with respect to the Commitments to make
Tranche B Term Loans, December 31, 2024, (b) with respect
to the Commitments to make Tranche C Term Loans, December 31, 2025 and (c) with respect to the Commitments to make Tranche
D Term Loans, December 31, 2025.
“Common Stock”
means the common stock, $0.001 par value, of the Borrower.
“Company Competitor”
means (i) any competitor of the Borrower or any of its Subsidiaries primarily operating in the same line of business as the Borrower
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) identified by name in writing by the Borrower to the Administrative Agent
from time to time or (y) clearly identifiable on the basis of such Affiliate’s name.
“Company WarrantWarrants”
means that(i) those
certain warrantwarrants,
dated as of the Closing Date and delivered pursuant to Section 6.01(h), evidenced by an instrument substantially the form of Exhibit J-1
hereto, as amended on the Second Amendment Effective Date and as further
amended, replaced or otherwise modified pursuant to the terms thereof and (ii) those certain warrants, dated as of the Second Amendment
Effective Date, evidenced by an instrument substantially the form of Exhibit J-1 hereto, as amended, replaced or otherwise
modified pursuant to the terms thereof.
“Compliance Certificate”
has the meaning set forth in Section 8.01(c).
“Conforming
Changes” means, with respect to the use, administration of or any conventions associated with Term SOFR or any proposed
Successor Rate, as applicable, any conforming changes to the definitions of “Term SOFR” and “Interest Period”,
timing and frequency of determining rates and making payments of interest and other technical, administrative or operational matters
(including, for the avoidance of doubt, the definitions of “Business Day” and “U.S. Government Securities Business
Day”, timing of borrowing requests or prepayment, conversion or continuation notices and length of lookback periods) as may be
appropriate, in the discretion of the Administrative Agent (in consultation with the Borrower), to reflect the adoption and implementation
of such applicable rate(s) and to permit the administration thereof by the Administrative Agent in a manner substantially consistent
with market practice (or, if the Administrative Agent determines that adoption of any portion of such market practice is not administratively
feasible or that no market practice for the administration of such rate exists, in such other manner of administration as the Administrative
Agent determines (in consultation with the Borrower) is reasonably necessary in connection with the administration of this Agreement
and any other Loan Document).
“Connection Income
Taxes” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise
Taxes or branch profits Taxes.
“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”
means, 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 through the ability to exercise voting power,
by contract or otherwise. “Controlling” and “Controlled” have meanings correlative thereto.
“Controlled Account”
has the meaning set forth in Section 8.17.
“Copyright”
means published and unpublished works of authorship whether or not copyrightable, including software, website and mobile content, data,
databases, and 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.
“Daily
Simple SOFR” means, with respect to any applicable determination date, the SOFR published on such date on the Federal Reserve
Bank of New York’s website (or any successor source).
“Default”
means any Event of Default and any event that, upon the giving of notice, the lapse of time or both, would constitute an Event of Default.
“Default
Rate” has the meaning set forth in Section 3.02(b).
“Deferred
Acquisition Consideration” means any purchase price adjustments, royalty, earn-out,
milestone payments, contingent or other deferred payment payments of a similar nature (including
any non-compete payments and consulting payments) made in connection with any Permitted Acquisition
or other acquisition or investment permitted under this Agreement.
“Designated Jurisdiction”
means any country or territory to the extent that such country or territory is the subject of country- or territory-wide Sanctions.
“Disqualified
Equity Interests” means, 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 Interests
(in each case, other than solely for Qualified Equity Interests), including pursuant to a sinking fund obligation or otherwise, (ii) is
redeemable 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 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 Maturity Date; provided,
that if such Equity Interests are issued to any employee or any plan for the benefit of employees of Borrower or its Subsidiaries or
by any such plan to such employees, such Equity Interests shall not constitute Disqualified Equity Interests solely because they may
be required to be repurchased by Borrower or its Subsidiaries in order to satisfy applicable statutory or regulatory obligations or as
a result of any such employee’s termination, death or disability; provided, further, that no Equity Interests held by any
future, present or former employee, director, officer or consultant (or their respective Affiliates or immediate family members) of Borrower
issued pursuant to customary terms in the Ordinary Course shall be considered Disqualified Equity Interests solely because such Equity
Interests are redeemable or subject to repurchase pursuant to a customary management equity subscription agreement, stock option, stock
appreciation right or other stock award agreement or similar agreement that may be in effect from time to time.
“Distressed Debt
Investor” means any investor or investment fund specializing in distressed debt and a majority of whose investment portfolio
at all times consists of distressed debt. In no event shall any Oaktree Lender be deemed to be a Distressed Debt Investor.
“Division”
has the meaning set forth in Section 1.04.
“Dollars”
and “$” means lawful money of the United States of America.
“Domestic Subsidiary”
means any Subsidiary that is a corporation, limited liability company, partnership or similar business entity incorporated, formed or
organized under the laws of the United States, any state of the United States or the District of Columbia.
“EEA Financial
Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject
to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution
described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which
is a subsidiary of an institution described in clause (a) or (b) of this definition and is subject to consolidated
supervision with its parent.
“EEA Member Country”
means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“EEA Resolution
Authority” means any public administrative authority or any person entrusted with public administrative authority of any
EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
“Eligible Transferee”
means and includes (i) any commercial bank, (ii) any insurance company, (iii) any finance company, (iv) any financial
institution, (v) 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, (vi) with respect to any
Lender, any of its Affiliates or such Lender’s or Affiliate’s managed funds or accounts, and (vii) any other “accredited
investor” (as defined in Regulation D of the Securities Act) that is principally in the business of managing investments or holding
assets for investment purposes; provided, that no Distressed Debt Investor or Company Competitor shall be an Eligible Transferee.
“Emerging 701
Pipeline” means oncology drug concepts and candidates identified using AI platform approaches, including synthetic lethality
pairs.
“Environmental
Claims” means any investigation, notice, notice of violation, claim, action, suit, proceeding, demand, information request,
abatement order or other order or directive (conditional or otherwise), by any Governmental Authority or any other Person, arising (i) pursuant
to or in connection with any actual or alleged violation of, or liability relating to, any Environmental Law; (ii) in connection
with any Hazardous Material or any actual or alleged Hazardous Materials Activity; or (iii) in connection with any actual or alleged
damage, injury, threat or harm to health, safety, natural resources or the environment, arising out of a violation of Environmental Law
or any Hazardous Materials Activity.
“Environmental
Law” means all laws (including common law and any federal, state, provincial or local governmental law), rule, regulation,
order, writ, judgment, notice, requirement, binding agreement, injunction or decree, whether U.S. or non-U.S., relating in any way to
(i) environmental matters, including those relating to any Hazardous Materials Activity; (ii) the generation, use, storage,
transportation or disposal of Hazardous Materials; or (iii) to the extent related to Hazardous Materials Activity, occupational
safety and health, industrial hygiene, land use, natural resources or the protection of human, plant or animal health or welfare, in
any manner applicable to the Borrower or any of its Subsidiaries or any Facility.
“Environmental
Liability” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation,
fines, penalties or indemnities), of any Obligor or any of its Subsidiaries directly or indirectly resulting from or based upon (i) violation
of any Environmental Law, (ii) the generation, use, presence, emission, discharge, handling, transportation, storage, treatment
or disposal of any Hazardous Materials, (iii) exposure to any Hazardous Materials, (iv) the release or threatened release of
any Hazardous Materials into the environment or (v) any contract, agreement or other consensual arrangement pursuant to which liability
is assumed or imposed with respect to any of the foregoing.
“Equity
Interests” means, 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
Closing 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.
“Equity Investment”
has the meaning set forth in Section 2.08(b).
“Equity Purchase
Right” means, with respect to each Lender, the right of such Lender to purchase Common Stock pursuant to an Equity Investment
in the amounts set forth opposite such Lender’s name on Schedule 1 under the caption “Equity Purchase Right”,
as such schedule may be amended from time to time pursuant to an Assignment and Assumption agreement or otherwise.
“Equivalent Amount”
means, 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. Where the permissibility of a transaction,
accuracy of a representation or warranty or compliance with a covenant hereunder is determined by reference to amounts stated in Dollars
(or the Equivalent Amount in other currencies), the time of determination shall, in each case, be the time at which any applicable transaction
is entered into (e.g. the time at which Indebtedness is incurred or at which an Investment or Asset Sale is made), financial covenant
is tested, or representation or warranty is made, and the permissibility of actions taken under this Agreement shall not be affected
by, and no Default or Event of Default shall arise as a result of, subsequent fluctuations in exchange rates.
“ERISA”
means the United States Employee Retirement Income Security Act of 1974, as amended.
“ERISA Affiliate”
means, collectively, any Obligor, Subsidiary thereof, and any Person under common control, or treated as a single employer, with any
Obligor or Subsidiary thereof, within the meaning of Section 414(b), (c), (m) or (o) of the Code.
“ERISA Event”
means (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 any Obligor or any ERISA Affiliate thereof from a Title IV Plan
or the termination of any Title IV Plan resulting in liability under Sections 4063 or 4064 of ERISA; (iv) the withdrawal of any
Obligor 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 any Obligor 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 any Obligor 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 any Obligor or any 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 any Obligor 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
any Obligor 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 any Obligor 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 any Obligor or any ERISA Affiliate thereof of fines, penalties, taxes or related
charges under Chapter 43 of the Code or under Sections 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 any Obligor 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 any Obligor 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 any Obligor 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 any Obligor.
“ERISA Funding
Rules” means 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 12.13(a).
“Erroneous Payment
Deficiency Assignment” has the meaning set forth in Section 12.13(d).
“Erroneous Payment
Impacted Loans” has the meaning set forth in Section 12.13(d).
“Erroneous Payment
Return Deficiency” has the meaning set forth in Section 12.13(d).
“EU Bail-In Legislation
Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor Person),
as in effect from time to time.
“Event of Default”
has the meaning set forth in Section 11.01.
“Exchange Act”
means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Exchange Rate”
means, 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 Administrative Agent.
”Excluded Accounts”
means (i) deposit accounts exclusively used for payroll, payroll Taxes and other employee wage and benefit payments to or for the
benefit of any Obligor’s employees, (ii) zero balance accounts that are swept no less frequently than weekly to a Controlled
Account, (iii) accounts (including trust accounts) used exclusively for bona fide escrow purposes,
insurance or fiduciary purposes, (iv) cash collateral for (x) Permitted Liens incurred pursuant to Sections 9.02(i) and
(r) and (y) Permitted Liens securing Indebtedness incurred pursuant to Sections 9.01(p), (r), (s)(iii) and
(s)(iv), (v) collateral accounts in respect of the Revenue Interest Financing, (vi) all
deposit accounts, securities accounts or commodity accounts of the BXCL 701 Subsidiaries, and (viivivi)
any other deposit accounts established after the Closing Date only for so long as the amounts of deposit therein do not exceed $500,000
(or the Equivalent Amount in other currencies) in the aggregate.
“Excluded Taxes”
means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a
Recipient: (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 Recipient being organized under the laws of, or having its principal office or, in the case
of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivisions thereof) or
(y) that are Other Connection Taxes, (ii) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable
to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the
date on which (1) such Lender acquires such interest in the Loan or Commitment or (2) such Lender changes its lending office,
except in each case to the extent that, pursuant to this Agreement, amounts with respect to such Taxes were payable either to such Lender’s
assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its lending office, (iii) Taxes
attributable to such Recipient’s failure to comply with Section 5.03(f), and (iv) any U.S. federal withholding
Taxes imposed under FATCA.
“Facility”
means any real property (including all buildings, fixtures or other improvements located thereon) now, hereafter or heretofore owned,
leased or operated by any Obligor or any of its Subsidiaries.
“FATCA”
means 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 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.
“FD&C Act”
means 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.
“FDA”
means the U.S. Food and Drug Administration and any successor entity.
“Federal
Funds Effective Rate” means, for any day, the rate calculated by the Federal
Reserve Bank of New York based on such day’s federal funds transactions by depositary
institutions (as determined in such manner as the Federal Reserve Bank of New York shall
set forth on its public website from time to time) and published on the next succeeding Business
Day by the Federal Reserve Bank of New York as the federal funds effective rate; provided
that if the Federal Funds Effective Rate as so determined would be less than zero, such
rate shall be deemed to be zero for the purposes of this Agreement.
“Fee Letter”
means the amended and restated Fee Letter, dated as of the date
of this AgreementSecond Amendment Effective Date,
among the Borrower, the Lenders and the Administrative Agent.
“First Offer”
has the meaning set forth in Section 9.19(d).
“Foreign Lender”
means a Lender that is not a U.S. Person.
“Funding Date
Certificate” means a certificate substantially in the form of Exhibit L.
“GAAP”
means generally accepted accounting principles in the United States of America, as in effect from time to time, set forth in the opinions
and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants, in the statements and
pronouncements of the Financial Accounting Standards Board and in such other statements by such other entity as may be in general use
by significant segments of the accounting profession that are applicable to the circumstances as of the date of determination. All references
to “GAAP” shall be to GAAP applied consistently with the principles used in the preparation of the financial statements delivered
pursuant to Section 6.01(d).
“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” means 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 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 any country, in each case whether U.S.
or non-U.S.
“Guarantee”
of or by any Person (the “guarantor”) means 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 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.
“Guarantee Assumption
Agreement” means a Guarantee Assumption Agreement substantially in the form of Exhibit C by an entity that,
pursuant to Section 8.11(a), is required to become a “Subsidiary Guarantor.”
“Guaranteed Obligations”
has the meaning set forth in Section 13.01.
“Guaranty”
means the Guaranty made by the Subsidiary Guarantors under Section 13 in favor of the Secured Parties (including any Guaranty
assumed by an entity that is required to become a “Subsidiary Guarantor” pursuant to a Guarantee Assumption Agreement).
“Hazardous Material”
means any chemical, material or substance, exposure to which is prohibited, limited or regulated by any Governmental Authority or which
may or would reasonably be expected to pose a hazard to the health and safety of the owners, occupants or any Persons in the vicinity
of any Facility or to the indoor or outdoor environment.
“Hazardous Materials
Activity” means any past, current, proposed or threatened activity, event or occurrence involving any Hazardous Materials,
including the use, manufacture, possession, storage, holding, presence, existence, location, release, threatened release, discharge,
placement, generation, transportation, processing, construction, treatment, abatement, removal, remediation, disposal, recycling, disposition
or handling of any Hazardous Materials, and any investigation, monitoring, corrective action or response action with respect to any of
the foregoing.
“Healthcare Laws”
means, collectively, all Laws and Product Authorizations applicable to the business, any Product or the Product Commercialization and
Development Activities of any Obligor, 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
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 “Stark Statute”; the FD&C Act; 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); 5 U.S.C. §§
8901 – 8914; 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 Transaction nor any Permitted Warrant Transaction shall be a Hedging Agreement.
“HIPAA”
has the meaning set forth in “Healthcare Laws”.
“Immaterial
Subsidiary” means any Subsidiary of the Borrower that (i) individually constitutes or holds less than five percent
(5%) of the Borrower’s consolidated total assets and generates less than five percent (5%) of the Borrower’s consolidated
total revenue, and (ii) when 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 Borrower’s consolidated total assets
and generate less than five percent (5%) of the Borrower’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 8.01(a) or (b);
provided that no Subsidiary of the Borrower shall be an Immaterial Subsidiary if such Subsidiary holds Material Intellectual Property
(other than, for the avoidance of doubt, foreign Product Authorizations). If at any time the aggregate amount of the Borrower’s
consolidated total assets or consolidated total revenue attributable to Immaterial Subsidiaries exceeds five percent (5%) of the Borrower’s
consolidated total assets or consolidated total revenue, the Borrower shall promptly (and in any event within thirty (30) days of becoming
aware of such excess) designate sufficient Subsidiaries as ceasing to constitute “Immaterial Subsidiaries” to eliminate such
excess, and such designated Subsidiaries shall be required to become Guarantors in accordance with Section 8.11(a). If at
any time any Subsidiary designated as an Immaterial Subsidiary individually constitutes or holds five percent (5%) or more of the Borrower’s
consolidated total assets or generates five percent (5%) or more of the Borrower’s consolidated total revenue, such Subsidiary
shall cease to constitute an Immaterial Subsidiary and the Borrower shall promptly (and in any event within thirty (30) days of becoming
aware thereof) cause such Subsidiary to become a Guarantor in accordance with Section 8.11(a).
“IND”
means (i) (x) an investigational new drug application (as defined in the FD&C Act) that is required to be filed with the
FDA before beginning clinical testing in human subjects, or any successor application or procedure and (y) any similar application
or functional equivalent relating to any investigational new drug application applicable to or required by any non-U.S. Governmental
Authority, and (ii) all supplements and amendments that may be filed with respect to the foregoing.
“Indebtedness”
of any Person means, 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, (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, (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, (viii) all Capital Lease Obligations
of such Person, (ix) all obligations, contingent or otherwise, of such Person as an account party in respect of letters of credit
and letters of guaranty, (x) obligations under any Hedging Agreement, currency swaps, forwards, futures or derivatives transactions,
(xi) all obligations, contingent or otherwise, of such Person in respect of bankers’ acceptances, (xii) all obligations
under any earn-out and guaranteed minimum milestone and other payments of such Person under any license or other agreements (but excluding
any payments based on sales under any such license or other agreement), (xiii) any Disqualified Equity Interests of such Person
and (xiv) any Off-Balance Sheet Liability; provided that, notwithstanding the foregoing, Indebtedness shall not include
(A) accrued expenses, deferred rent, deferred Taxes, deferred compensation or customary obligations under employment agreements,
orand (B) accounts
payable incurred in the ordinary course of business and either (i) not overdue by more than ninety (90) days or
(ii) being contested in good faith by appropriate proceedings and reserved for in accordance with GAAP. The Indebtedness
of any Person shall include the Indebtedness of any other entity (including any partnership in which such Person is a general partner)
to the extent such Person is liable therefor as a result of such Person’s ownership interest in or other relationship with such
entity, except to the extent the terms of such Indebtedness provide that such Person is not liable therefor.
“Indemnified
Party” has the meaning set forth in Section 14.03(b).
“Indemnified
Taxes” means (i) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account
of any Obligation and (ii) to the extent not otherwise described in clause (i), Other Taxes.
“Information
Certificate” means the Information Certificate delivered pursuant to Section 6.01(c).
“Initial Period”
has the meaning ascribed to such term in the BioXcel Trademark Agreement.
“Insolvency Proceeding”
means (i) any case, action or proceeding before any court or other Governmental Authority relating to bankruptcy, reorganization,
insolvency, liquidation, receivership, dissolution, winding-up or relief of debtors, or (ii) any general assignment for the benefit
of creditors, composition, marshaling of assets for creditors, or other, similar arrangement in respect of any Person’s creditors
generally or any substantial portion of such Person’s creditors, in each case undertaken under U.S. federal, state or foreign law,
including the Bankruptcy Code.
“Intellectual
Property” means 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, whether U.S. or non-U.S.
“Intercompany
Subordination Agreement” means a subordination agreement to be executed and delivered by each Obligor and each of its Subsidiaries,
pursuant to which all obligations in respect of any Indebtedness owing to any such Person by an Obligor shall be subordinated to the
prior payment in full in cash of all Obligations, such agreement to be in substantially the form attached hereto as Exhibit I.
“Interest
“Interest
Period” means (a) the period commencing on and including the Second Amendment Effective Date and ending on but excluding
the immediately subsequent Payment Date and (b) subsequently, each period commencing on and excluding the last day of the previous
Interest Period for such Loan and ending on but excluding the immediately subsequent Payment Date; provided however if such period shall
end on a day that is not a Business Day, it shall be deemed to end on the next succeeding Business Day.
“Interest
Rate” means 10.Term
SOFR plus 7.50% per annum, as may be increased pursuant to Section 3.02(b).
“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, method, process, machine (including article or device), manufacture
or composition of matter.
“Investment”
means, for any Person: (i) the acquisition (whether for cash, property, services or securities or otherwise) of any debt or Equity
Interests, bonds, notes, debentures, partnership or other ownership interests or other securities of any other Person or any agreement
to make any such acquisition (including any “short sale” or any sale of any securities at a time when such securities are
not owned by the Person entering into such sale); (ii) the making of any deposit with, or advance, loan, assumption of debt or other
extension of credit to, or capital contribution in any other Person (including the purchase of property from another Person subject to
an understanding or agreement, contingent or otherwise, to resell such property to such Person), but excluding any such advance, loan
or extension of credit having a term not exceeding ninety (90) days arising in connection with the sale of inventory or supplies by such
Person in the Ordinary Course; or (iii) the entering into of any Guarantee of, or other contingent obligation with respect to, Indebtedness
of any other Person and (without duplication) any amount committed to be advanced, lent or extended to such Person. The amount of an
Investment shall be the amount actually invested (which, in the case of any Investment constituting the contribution of an asset or property,
shall be based on such Person’s good faith estimate of the fair market value of such asset or property at the time such Investment
is made), less the amount of cash received or returned for such Investment, without adjustment for subsequent increases or decreases
in the value of such Investment or write-ups, write-downs or write-offs with respect thereto; provided that in no event shall
such amount be less than zero or increase any basket or amount pursuant to Section 9.05 above the fixed amount set forth
therein. Notwithstanding anything to the contrary in the foregoing, the purchase of any Permitted Bond Hedge Transaction by the Borrower
or any of its Subsidiaries and the performance of its obligations thereunder shall not be an Investment.
“IPO
Co.” means a corporation created in contemplation of a Qualifying IPO which
shall become the direct or indirect parent or managing member of a BXCL 701 Subsidiary and
which shall have no assets other than direct or indirect Equity Interests in such BXCL 701
Subsidiary and other assets that BXCL 701 Subsidiaries are permitted to own pursuant to the
terms of this Agreement.
“IRS”
means the U.S. Internal Revenue Service or any successor agency, and to the extent relevant, the U.S. Department of the Treasury.
“Landlord Consent”
means a Landlord Consent substantially in the form of Exhibit G.
“Law”
means, 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 administrative
orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each
case whether or not having the force of law.
“Lenders”
has the meaning set forth in the preamble hereto.
“Lien”
means (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 case of Equity Interests, any purchase option, call or similar right of a third party with respect
to such Equity Interests.
“Loan”
means each loan advanced by a Lender pursuant to Section 2.01.
”Loan Documents”
means, collectively, this Agreement, the Second Amendment, the Notes,
the Security Documents, the Company WarrantWarrants,
the 701 Warrants, the Fee Letter, any Guarantee Assumption Agreement, the Intercompany Subordination Agreement and any subordination
agreement, intercreditor agreement (including the Permitted Intercreditor Agreement but, for the avoidance
of doubt, excluding any other documentation related to the Revenue Interest Financing) or other present or future document,
instrument, agreement or certificate delivered to the Administrative Agent (for itself or for the benefit of any other Secured Party)
in connection with this Agreement or any of the other Loan Documents, in each case, as amended or otherwise modified.
“Loss”
means judgments, 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 on a full indemnity basis, and all costs incurred in investigating or pursuing any Claim or any
proceeding relating to any Claim.
“Majority Lenders”
means, at any time, Lenders having at such time in excess of fifty percent (50%) of the aggregate Commitments (or, if such Commitments
are terminated, the outstanding principal amount of the Loans) then in effect.
“Margin Stock”
means “margin stock” within the meaning of Regulations U and X.
“Material Adverse
Change” and “Material Adverse Effect” mean a material adverse change in or effect on (i) the
business, financial performance, operations, condition of the assets or liabilities of the Borrower and its Subsidiaries taken as a whole,
(ii) the ability of any Obligor to perform its obligations under the Loan Documents, as and when due, (iii) the legality, validity,
binding effect or enforceability of the Loan Documents or (iv) the rights, remedies and benefits available to, or conferred upon,
the Administrative Agent or the Secured Parties under any of the Loan Documents.
“Material Agreement”
means any Contract 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. For the avoidance of doubt, employment and management contracts shall not
be Material Agreements.
“Material Indebtedness”
means, at any time, any Indebtedness of any Obligor or Subsidiary thereof, the outstanding principal amount of which, individually or
in the aggregate, exceeds $15,000,000 (or the Equivalent Amount in other currencies).
“Material Intellectual
Property” means all Intellectual Property, whether currently owned by (or purported to be owned by) or licensed to (or
purported to be licensed to) the Borrower or any of its Subsidiaries, or acquired, developed or obtained by or otherwise licensed to
the Borrower or any of its Subsidiaries after the date hereofClosing
Date that is, in each case, material to any current, planned or anticipated business of the Borrower or any of its Subsidiaries.
Material Intellectual Property includes all Intellectual Property that is material to, or specifically related to or directed toward,
(i) BXCL 501 or, prior to a Permitted BXCL 701 Release Event, BXCL 701 or (ii) Product Commercialization and Development Activities
with respect to BXCL 501 or, prior to a Permitted BXCL 701 Release Event, BXCL 701.
“Material Software”
has the meaning set forth in Section 7.05(b)(G).
“Material Subsidiary”
means any Subsidiary of the Borrower that is not an Immaterial Subsidiary.
“Maturity
Date” means April 19, 2027 (as it may be extended pursuant to Section 2.07)
or, if such date is not a Business Day, the immediately preceding Business Day.
“Medicaid”
means that government-sponsored entitlement program under Title XIX, P.L. 89-97 of the Social Security Act, which provides federal grants
to states for medical assistance based on specific eligibility criteria, as set forth on Section 1396, et seq. of Title 42 of the
United States Code.
“Medicare”
means that government-sponsored insurance program under Title XVIII, P.L. 89-97, of the Social Security Act, which provides for a health
insurance system for eligible elderly and disabled individuals, as set forth at Section 1395, et seq. of Title 42 of the United
States Code.
”Minimum Liquidity
Amount” means (i) from the Closing Date until the date on which the Tranche B Term Loans are funded (the “Step-Up
Date”), $15,000,000; provided, that upon and following the occurrence of a Permitted BXCL 701 Release Event, the
Minimum Liquidity Amount shall be $27,500,000; provided, further, that upon and following the occurrence of a Permitted
BXCL 701 Control Event, the Minimum Liquidity Amount shall be $32,500,000; and (ii) from
and after the Step-Up Date, $20,000,000; provided, that upon and following the occurrence of a Permitted BXCL 701 Release Event,
the Minimum Liquidity Amount shall be $32,500,000; provided, further, that upon and following the occurrence of a Permitted
BXCL 701 Control Event, the Minimum Liquidity Amount shall be $37,500,000;
and (iii) from and after the Applicable Funding Condition for Tranche C Term Loans is satisfied (as evidenced by an officer’s
certificate delivered by the Borrower to the Administrative Agent) (the “Step-Down Date”), $15,000,000; provided, that upon
and following the occurrence of a Permitted BXCL 701 Release Event, the Minimum Liquidity Amount shall be $27,500,000; provided, further,
that upon and following the occurrence of a Permitted BXCL 701 Control Event, the Minimum Liquidity Amount shall be $32,500,000.
For the avoidance of doubt, the Minimum Liquidity Amount shall be the highest applicable amount at any time. Notwithstanding the foregoing
or anything to the contrary herein, the Minimum Liquidity Amount shall in no event exceed 50% of the aggregate amount of Loans outstanding
at any time.
“Minimum Liquidity
Covenant” shall have the meaning set forth in Section 10.01.
“Minimum Revenue”
means, with respect to any period, the minimum revenue for such period as set forth on Schedule 3.
“Minimum Revenue
Covenant” has the meaning set forth in Section 10.02. “Minimum Revenue Cure Right”
has the meaning set forth in Section 11.04(a). “Mortgage Deliverables” has the meaning set forth
in Section 8.11(b)(iv).
“Multiemployer
Plan” means 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”
means (i) (x) a new drug application (as defined in the FD&C Act) and (y) any similar application or functional equivalent
relating to any new drug application applicable to or required by any non-U.S. country, jurisdiction or Governmental Authority, and (ii) all
supplements and amendments that may be filed with respect to any of the foregoing.
“Net Cash Proceeds”
means, (i) with respect to any Casualty Event experienced or suffered by any Obligor or any of its Subsidiaries, the amount of cash
proceeds received (directly or indirectly) from time to time by or on behalf of such Person after deducting therefrom only (w) reasonable
costs and expenses related thereto incurred by such Obligor or such Subsidiary in connection therewith, (x) Taxes (including transfer
Taxes or net income Taxes) paid or payable in connection therewith, (y) reasonable reserves established for liabilities estimated
to be payable in respect of such Casualty Event and deposited into escrow with a third party escrow agent on customary terms or set aside
in a Controlled Account and (z) any amounts required to be used to prepay Permitted Indebtedness pursuant to Sections 9.01(j) and
9.01(l) secured by the assets subject to such Casualty Event (other than (A) Indebtedness owing to the Administrative Agent
or any Lender under this Agreement or the other Loan Documents and (B) Indebtedness assumed by the purchaser of such asset); and
(ii) with respect to any Asset Sale by any Obligor or any of its Subsidiaries, the amount of cash proceeds received (directly or
indirectly) from time to time by or on behalf of such Person after deducting therefrom only (w) reasonable costs and expenses related
thereto incurred by such Obligor or such Subsidiary in connection therewith, (x) Taxes (including transfer Taxes or net income Taxes)
paid or payable in connection therewith, (y) reasonable reserves established for liabilities estimated to be payable in respect
of such Asset Sale and deposited into escrow with a third party escrow agent on customary terms or set aside in a Controlled Account
and (z) any amounts required to be used to prepay Permitted Indebtedness pursuant to Sections 9.01(j) and 9.01(l) secured
by the assets subject to such Asset Sale (other than (A) Indebtedness owing to the Administrative Agent or any Lender under this
Agreement or the other Loan Documents and (B) Indebtedness assumed by the purchaser of such asset); provided that, in each
case of clauses (i) and (ii), costs and expenses shall only be deducted to the extent, that the amounts so deducted
are (x) actually paid to a Person that is not an Affiliate of any Obligor or any of its Subsidiaries and (y) properly attributable
to such Casualty Event or Asset Sale, as the case may be. Notwithstanding the foregoing, Net Cash Proceeds exclude any cash proceeds
received by any BXCL 701 Subsidiary arising from a Casualty Event affecting, or Asset Sale by, such Subsidiary (or other BXCL 701 Subsidiary);
provided that any such excluded cash proceeds shall constitute Net Cash Proceeds as, and to the extent, distributed to Borrower
or any Subsidiary that is not a BXCL 701 Subsidiary.
“Note”
means a promissory note, in substantially the form of Exhibit A hereto, executed and delivered by the Borrower to any Lender
in accordance with Section 2.04.
“Notice of Intent
to Cure Revenue Covenant” has the meaning set forth in Section 11.04(b).
“NY UCC”
means the UCC as in effect from time to time in New York.
“Oaktree Lender”
means any Lender that is an Affiliate or managed fund or account of Oaktree Capital Management, L.P.
“Obligations”
means, with respect to any Obligor, all amounts, obligations, liabilities, covenants and duties of every type and description owing by
such Obligor to any Secured Party (including all Guaranteed Obligations) any other indemnitee hereunder or any participant, arising out
of, under, or in connection with, any Loan Document, whether direct or indirect (regardless of whether acquired by assignment), absolute
or contingent, due or to become due, whether liquidated or not, now existing or hereafter arising and however acquired, and whether or
not evidenced by any instrument or for the payment of money, including, without duplication, (i) if such Obligor is the Borrower,
all Loans, (ii) all interest, whether or not accruing after the filing of any petition in bankruptcy or after the commencement of
any insolvency, reorganization or similar proceeding, and whether or not a claim for post-filing or post-petition interest is allowed
in any such proceeding, and (iii) all other fees, expenses (including fees, charges and disbursement of counsel), interest, Ticking
Fees, Prepayment Fee, commissions, charges, costs, disbursements, indemnities and reimbursement of amounts paid and other sums chargeable
to such Obligor under any Loan Document. Notwithstanding the foregoing, the Obligations shall not include any Warrant Obligations, obligations
under the Stock Purchase Agreement or obligations of the Borrower to issue Common Stock pursuant to Section 2.08 or the Stock
Purchase Agreement.
“Obligors”
means, collectively, the Borrower and the Subsidiary Guarantors and their respective successors and permitted assigns. At all times prior
to the BXCL 701 Release Date, each of the BXCL 701 Subsidiaries shall be Subsidiary Guarantors on an unsecured basis.
“OFAC”
has the meaning assigned to such term in the definition of “Anti-Terrorism Laws.”
“Off-Balance
Sheet Liability” of a Person means (a) any repurchase obligation or liability of such Person with respect to accounts
or notes receivable sold by such Person, (b) any indebtedness, liability or obligation under any so-called “synthetic lease”
transaction entered into by such Person, or (c) any indebtedness, liability or obligation arising with respect to any other transaction
which is the functional equivalent of or takes the place of borrowing but which does not constitute a liability on the balance sheet
of such Person (other than operating leases).
“Option Right”
has the meaning set forth in the definition of “Change of Control.”
“Ordinary Course”
means ordinary course of business or ordinary trade activities 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” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient
and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party
to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction
pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).
“Other Taxes”
means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made
under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest
under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to
an assignment.
“Parent Entity”
means any direct or indirect parent of the Borrower.
“Participant”
has the meaning set forth in Section 14.05(e).
“Participant
Register” has the meaning set forth in Section 14.05(e).
“Patents”
means (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, petty 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.
“Patriot
Act” has the meaning set forth in Section 14.19.
“Payment Date”
means (i) March 31, June 30, September 30 and December 31 of each year, commencing on the first such date to
occur after the Closing Date (provided, that if such date is not a Business Day, then on the immediately preceding Business Day); and
(ii) the Maturity Date.
“PBGC”
means the United States Pension Benefit Guaranty Corporation referred to and defined in ERISA and any successor entity performing similar
functions.
“Perfection Requirements”
means the filing of appropriate financing statements with the applicable filing office and the filing of appropriate assignments or notices
with the U.S. Patent and Trademark Office and the U.S. Copyright Office, in each case in favor of Administrative Agent, the delivery
to Administrative Agent of any stock certificates or promissory notes (and any corresponding stock powers or allonges), control agreements
and any other Security Documents required to be delivered or actions to be taken pursuant to the applicable Loan Documents and the making
or procuring of any other registrations, filings, endorsements, notarizations, stampings and/or notifications of the Security Documents
or the Liens created thereunder necessary for the validity and enforceability thereof.
“Permitted Acquisition”
means any Acquisition by the Borrower or any of its Subsidiaries, whether by purchase, merger or otherwise; provided that:
| (a) | (a) immediately
prior to, and immediately after giving effect thereto, no Default or Event of Default shall
have occurred and be continuing or would reasonably be expected to result therefrom; |
| (b) | (b) such
Acquisition shall comply in all material respects with all applicable Laws and all applicable
Governmental Approvals; |
| (c) | (c) in
the case of any Acquisition of Equity Interests of another Person, after giving effect to
such Acquisition, all Equity Interests of such other Person acquired by the Borrower or any
of its Subsidiaries shall be owned, directly or indirectly, beneficially and of record, by
the Borrower or any of its Subsidiaries, and, the Borrower shall cause such acquired Person
to satisfy each of the actions set forth in Section 8.11 as required by such Section; |
| (d) | (d if
such Acquisition is structured as an in-license of Intellectual Property, all actions shall
have been taken that are necessary or reasonably requested by the Administrative Agent to
provide and perfect a first priority Lien to the Administrative Agent in such in-license
(in each case, subject to Permitted Liens); |
| (e) | on a pro forma basis after giving effect to such Acquisition, the Borrower and its Subsidiaries
shall be in compliance with the financial covenants set forth in Section 10; |
| (f) | (e) to the extent that the purchase price for any
such Acquisition is paid in cash, the amount thereof does not exceed $10,000,000 (or the Equivalent Amount in other currencies) in any
fiscal year (excluding any Deferred Acquisition Consideration consisting of milestone and royalty payments that are calculated on the
basis of future revenues pursuant to an agreement entered as an Arm’s Length Transaction); |
(fg) to
the extent that the purchase price for any such Acquisition is paid in Equity Interests, all such Equity Interests shall be Qualified
Equity Interests;
(gh) in
the case of any such Acquisition that has a purchase price (excluding any Deferred Acquisition Consideration consisting of milestone and
royalty payments that are in each case calculated on the basis of future revenues pursuant to an agreement entered as an Arm’s Length
Transaction) in excess of $35,000,000 (or the Equivalent Amount in other currencies), (A) the Borrower shall provide to the Administrative
Agent (i) at least ten (10) Business Day’s prior written notice of any such Acquisition, together with summaries, prepared
in reasonable detail, of all due diligence conducted by or on behalf of the Borrower or the applicable Subsidiary, as applicable, prior
to such Acquisition, in each case subject to customary confidentiality restrictions, (ii) subject to customary confidentiality restrictions,
a copy of the draft purchase agreement related to the proposed Acquisition (and any related documents requested by the Administrative
Agent), (iii) pro forma financial statements of the Borrower and its Subsidiaries (as of the last day of the most recently ended
fiscal quarter prior to the date of consummation of such Acquisition for which financial statements are required to be delivered pursuant
to Section 8.01(a) or (b)) after giving effect to such Acquisition, and (iv) subject to customary confidentiality
restrictions, any other information reasonably requested (to the extent available), by the Administrative Agent and available to the Obligors
and (B) to the extent the cash purchase price exceeds $35,000,000 (or the Equivalent Amount in other currencies) (excluding any Deferred
Acquisition Consideration consisting of milestone and royalty payments that are calculated on the basis of future revenues pursuant to
an agreement entered as an Arm’s Length Transaction), the Administrative Agent shall have consented to in writing to such Acquisition
(such consent not to be unreasonably delayed, withheld or conditioned); and
(hi)
no Obligor or any of its Subsidiaries (including any acquired Person) shall, in connection with any such Acquisition, assume or remain
liable with respect to (x) any Indebtedness of the related seller or the business, Person or assets acquired, except to the extent
permitted pursuant to Section 9.01(l), (y) any Lien on any business, Person or assets acquired, except to the extent
permitted pursuant to Section 9.02, (z) any other liabilities (including Tax, ERISA and environmental liabilities), except
to the extent the assumption of such liability would not reasonably be expected to result in a Material Adverse Effect. Any other such
Indebtedness, liabilities or Liens not permitted to be assumed, continued or otherwise supported by any Obligor or Subsidiary thereof
hereunder shall be paid in full or released within sixty (60) days of the acquisition date as to the business, Persons or properties being
so acquired on or before the consummation of such Acquisition.
“Permitted Bond
Hedge Transaction” means any call or capped call option (or substantively equivalent derivative transaction) relating to
the Borrower’s common stock (or other securities or property following a merger event, reclassification or other change of the common
stock of the Borrower) that is (A) purchased by the Borrower in connection with the issuance of any Permitted Convertible Debt, (B) settled
in common stock of the Borrower (or such other securities or property), cash or a combination thereof (such amount of cash determined
by reference to the price of the Borrower’s common stock or such other securities or property), and cash in lieu of fractional shares
of common stock of the Borrower and (C) on terms and conditions customary for bond hedge transactions in respect of broadly distributed
144A convertible bond transactions as reasonably determined by the Borrower.
“Permitted BXCL
701 Control Event” means a Permitted BXCL 701 Disposition Event that (taken together with all prior Permitted BXCL 701 Disposition
Events) results in one or more unaffiliated third parties owning, in the aggregate, more than 30% of the Equity Interests in the BXCL
701 Subsidiaries (excluding any Equity Interests issued pursuant to Section 9.09(o)).
“Permitted BXCL
701 Disposition Event” means a Permitted BXCL 701 Primary Disposition Event or a Permitted BXCL 701 Secondary Disposition
Event.
“Permitted BXCL
701 Primary Disposition Event” means (i) any investment in the BXCL 701 Subsidiaries by an unaffiliated third-party
institutional investor or licensee or collaboration partner on arm’s length terms and for fair market value or (ii) a Qualifying
IPO; provided that, after giving effect to such Permitted BXCL 701 Primary Disposition Event and any related transactions, the
Borrower shall be in pro forma compliance with the Minimum Liquidity Covenant.
“Permitted BXCL
701 Release Event” means a Permitted BXCL 701 Disposition Event that (taken together with all prior Permitted BXCL 701 Disposition
Events) (i) results in one or more unaffiliated third parties owning, in the aggregate, more than 20% of the Equity Interests in
the BXCL 701 Subsidiaries (excluding any Equity Interests issued pursuant to Section 9.09(o)) or (ii) is a Qualifying
IPO.
“Permitted BXCL
701 Secondary Disposition Event” means (i) any sale by the Borrower or a Subsidiary (other than a BXCL 701 Subsidiary)
of Equity Interests in a BXCL 701 Subsidiary to an unaffiliated third-party institutional investor or licensee or collaboration partner
on arm’s length terms and for fair market value or (ii) the transfer, on arm’s length terms and for fair market value,
to an unaffiliated third party, of all or substantially all of the BXCL 701 Assets (whether by sale, license, joint venture, reverse merger
or otherwise); provided that, after giving effect to any Permitted BXCL 701 Secondary Disposition Event and any related transactions,
the Borrower shall be in pro forma compliance with the Minimum Liquidity Covenant.
“Permitted Cash
Equivalent Investments” means (i) marketable direct obligations issued or unconditionally guaranteed by the United
States or any member states of the European Union or any agency or any state thereof having maturities of not more than one (1) year
from the date of acquisition, (ii) commercial paper maturing no more than two hundred seventy (270) days after the date of acquisition
thereof and having the highest rating from either Standard & Poor’s Ratings Group or Moody’s Investors Service, Inc.,
(iii) certificates of deposit maturing no more than one (1) year after issue that are issued by any bank organized under the
Laws of the United States, or any state thereof, or the District of Columbia, or any U.S. branch of a foreign bank having, at the date
of acquisition thereof, combined capital and surplus of not less than $500,000,000 (or the Equivalent Amount in other currencies), (iv) any
Investments compliant with the Borrower’s investment policy in the form provided to the Administrative Agent prior to the Closing
Date, subject to amendments to such investment policy approved by the Administrative Agent in writing (such approval not to be unreasonably
withheld, conditioned or delayed), and (v) any money market or similar funds that exclusively hold any of the foregoing.
“Permitted Convertible
Debt” means unsecured Indebtedness of the Borrower that (i) contains customary conversion rights for broadly distributed
144A convertible bond transactions as of the date of issuance and (ii) is convertible into shares of common stock of the Borrower,
cash or a combination thereof (such amount of cash determined by reference to the price of the Borrower’s common stock or such other
securities or property), or cash in lieu of fractional shares of common stock of the Borrower; provided that any such indebtedness
shall (A) mature, and not be subject to mandatory repurchase or redemption (other than in connection with a customary change of control
or “fundamental change” provision), at least 270 days after the Maturity Date, (B) have recourse only to the Borrower
and (C) not have an all-in-yield greater than 550 basis points as determined in good faith by the Administrative Agent (with any
original issue discount equated to interest based on the convertible debt maturity date and excluding any additional or special interest
that may become payable from time to time).
“Permitted Hedging
Agreement” means a Hedging Agreement entered into by any Obligor in such Obligor’s 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 in excess of
50%, but not more than 100%, of the aggregate principal amount of Loans outstanding at such time.
“Permitted Holder”
means BioXcel LLC and its Affiliates.
“Permitted Indebtedness”
means any Indebtedness permitted under Section 9.01.
“Permitted Intercreditor
Agreement” means the intercreditor agreement entered into by and between the Administrative Agent and the providers (or
agent or trustee on their behalf) of the Revenue Interest Financing, dated as of the date hereof, including any amendments, amendments
and restatements, modifications or replacements thereof with the consent of the Administrative Agent.
“Permitted Licenses”
means (A) outbound non-exclusive licenses for the use of the Intellectual Property of any Obligor or any of its Subsidiaries entered
into in the Ordinary Course, (B) exclusive licenses limited (i) in territory solely with respect to a specific geographic country
or region outside of the United States or (ii) to BXCL 701 and the Emerging 701 Pipeline so long as such exclusive license is not
in substance a sale of BXCL 701 or any Products in the Emerging 701 Pipeline (because it conveys to the licensee or sublicensee exclusive
rights to practice such Intellectual Property in the United States for consideration that is not based upon (1) the future development
or commercialization of Product in the United States (e.g., pursuant to so-called earn-out payments or royalties based on net sales),
or (2) the performance of services by the licensee or sublicensee (other than transition services), such as, for example, consideration
of only upfront advances or initial license fees or similar initial payments in consideration of such rights with no anticipated subsequent
payments or only de minimis subsequent payments to the BXCL 701 Subsidiaries), (C) promotion, manufacture or other collaborative
arrangements with a third party in which an Obligor or any of its Subsidiaries grants a third party licenses under any of its Intellectual
Property, but does not grant such third party the right to sell (unless the Administrative Agent shall otherwise consent, which consent
shall not be unreasonably delayed, withheld or conditioned; provided, that in the event Borrower requests such consent in writing
to Administrative Agent, accompanied by a reasonably detailed description of the proposed arrangement, Administrative Agent shall respond
to such request within ten (10) Business Days), and (D) subject to the applicable terms in this Agreement, licenses to a BXCL
701 Subsidiary for the use of the AI immune-oncology platform within the immune oncology field but excluding the neuroscience field; provided,
that with respect to each license described in clauses (A) through (D), such license constitutes an Arm’s Length Transaction,
the terms of which (x) do not provide for a sale or assignment of any Intellectual Property, (y) do not restrict the ability
of Borrower or any of its Subsidiaries, as applicable, to pledge or grant a security interest in or Lien on any Intellectual Property,
and (z) are commercially reasonable (as determined in good faith by Borrower).
“Permitted Liens”
means any Liens permitted under Section 9.02.
“Permitted Priority
Liens” means (a) Liens permitted under Section 9.02 (c), (d), (e), (f), (g), (h), (i), (j), (k), (p), (q), (s)(ii),
and (t) and (b) Liens permitted under Sections 9.02(b) and (j); provided that such Liens are also of the type described
in clause (a) of this definition.
“Permitted Refinancing”
means, with respect to any Indebtedness permitted to be refinanced, extended, renewed or replaced hereunder, any refinancings, extensions,
renewals and replacements of such Indebtedness; provided that such refinancing, extension, renewal or replacement shall not (i) increase
the outstanding principal amount of the Indebtedness being refinanced, extended, renewed or replaced, except by an amount equal to accrued
interest, any required prepayment premium and customary fees and expenses reasonably incurred, in connection therewith, (ii) contain
terms relating to outstanding principal amount, amortization, maturity, collateral security (if any) or subordination (if any), or other
material terms that, taken as a whole, are less favorable in any material respect to the Obligors and their respective Subsidiaries or
the Secured Parties than the terms of any agreement or instrument governing such existing Indebtedness (as determined in good faith by
the Borrower), (iii) have an applicable interest rate which does not exceed the greater of (A) the rate of interest of the Indebtedness
being replaced and (B) the then applicable market interest rate, (iv) contain any new requirement to grant any Lien or to give
any Guarantee that was not an existing requirement of such Indebtedness and (v) after giving effect to such refinancing, extension,
renewal or replacement, no Default shall have occurred (or would reasonably be expected to occur) as a result thereof.
“Permitted Tax
Distributions” means,
(A) for
any taxable period ending prior to any Qualifying IPO and after the Closing Date for which the BXCL 701 Subsidiary is treated as a partnership
(or disregarded as an entity separate from a partnership) that is not wholly-owned by a corporation for U.S. federal income tax purposes,
in an aggregate amount for such taxable period not to exceed the product of (1) the taxable income of the BXCL 701 Subsidiary for
such taxable period and (2) the highest combined marginal U.S. federal, state and/or local income tax rate (taking into account the
character of the taxable income in question (e.g., long term capital gain, qualified dividend income, etc.)) applicable to any equityholder
of the BXCL 701 Subsidiary;
(B) for
any taxable period (or portion thereof) ending after any Qualifying IPO for which a BXCL 701 Subsidiary is treated as a partnership (or
disregarded as an entity separate from a partnership) that is not wholly-owned by a corporation for U.S. federal income tax purposes,
in an aggregate amount for such taxable period not to exceed the product of (1) the taxable income of the BXCL 701 Subsidiary for
such taxable period (determined without regard to any adjustments pursuant to Section 734 or 743 of the Code), and (2) the highest
combined marginal U.S. federal, state and/or local income tax rate (taking into account the character of the taxable income in question
(e.g., long term capital gain, qualified dividend income, etc.)) applicable to any equityholder of the BXCL 701 Subsidiary; provided
that, to the extent an equityholder a BXCL 701 Subsidiary would be entitled to receive less than its pro rata share (in accordance with
relative economic ownership of the BXCL 701 Subsidiary) of the amounts of tax distributions otherwise distributable to the BXCL 701 Subsidiary
pursuant to this clause (B) on any given date, the amounts of Permitted Tax Distributions otherwise permitted pursuant to this clause
(B) shall be increased to ensure that the equityholders of the BXCL 701 Subsidiary shall receive an amount pursuant to this clause
(B) so that all tax distributions by the BXCL 701 Subsidiary are made to its equityholders pro rata in accordance with relative economic
ownership; or
(C) for
any taxable year ending after the Closing Date for which (i) the BXCL 701 Subsidiary is treated as a corporation that is a member
of a consolidated, combined, unitary or similar income tax group for U.S. federal or applicable foreign, state and/or local income tax
purposes (a “Tax Group”) of which a direct or indirect parent company of the BXCL 701 Subsidiary is the common parent or (ii) the
BXCL 701 Subsidiary is a pass-through or disregarded entity for U.S. federal or applicable foreign, state or local income tax purposes
that is wholly-owned (directly or indirectly) by a corporation for U.S. federal income tax purposes, any payments and distributions to
fund the portion of the U.S. federal, foreign, state and/or local income taxes of such Tax Group or such corporation (as applicable) for
such taxable period that is attributable to the taxable income of the BXCL 701 Subsidiary and/or the applicable Subsidiaries.
“Permitted Warrant
Transaction” means any call option, warrant or right to purchase (or substantively equivalent derivative transaction) relating
to the Borrower’s common stock (or other securities or property following a merger event, reclassification or other change of the
common stock of the Borrower) sold by the Borrower and with recourse to the Borrower only, substantially concurrently with any purchase
by the Borrower of a Permitted Bond Hedge Transaction and settled in common stock of the Borrower, cash or a combination thereof (such
amount of cash determined by reference to the price of the Borrower’s common stock or such other securities or property), and cash
in lieu of fractional shares of common stock of the Borrower.
“Person”
means any individual, corporation, company, voluntary association, partnership, limited liability company, joint venture, trust, unincorporated
organization or Governmental Authority or other entity of whatever nature.
“PIK Interest”
has the meaning set forth in Section 3.02(c).
“Plan”
means 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 Borrower 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.
“Prepayment Fee”
means with respect to any prepayment of all or any portion of the Loans, whether by optional or mandatory prepayment, acceleration or
otherwise (in each case, other than any scheduled amortization payment and other than any prepayment made pursuant to Section 5.02),
occurring (i) on or prior to the second anniversary of the Closing Date, an amount equal to the amount of interest that would have
been paid on the principal amount of the Loans being so repaid or prepaid for the period from and including the date of such repayment
or prepayment to but excluding the date that is the two (2) year anniversary of the Closing Date, plus four percent (4%) of
the principal amount of the Loans being so repaid or prepaid and the Commitments being so terminated, provided that, with respect to any
prepayment in connection with a Change of Control event, the Prepayment Fee shall be (A) twelve and one half percent (12.5%) of the
aggregate outstanding principal amount of the Loans being so repaid or prepaid if such prepayment occurs on or prior to the first anniversary
of the Closing Date, and (B) ten percent (10%) of the aggregate outstanding principal amount of the Loans being so repaid or prepaid
if such prepayment occurs after the first anniversary of the Closing Date but on or prior to the second anniversary of the Closing Date,
(ii) at any time after the second anniversary of the Closing Date but on or prior to the third anniversary of the Closing Date, an
amount equal to four percent (4%) of the aggregate outstanding principal amount of the Loans being so repaid or prepaid, (iii) at
any time after the third anniversary of the Closing Date but on or prior to the fourth anniversary of the Closing Date, an amount equal
to two percent (2%) of the aggregate outstanding principal amount of the Loans being so repaid or prepaid and (iv) if the prepayment
is made after the fourth anniversary of the Closing Date, 0%.
“Prepayment Price”
has the meaning set forth in Section 3.03(a)(i).
“Pro Forma Basis”
means, with respect to the calculation of any financial ratio, as of any date, that pro forma effect will be given to the Transactions,
any Permitted Acquisition, any issuance, incurrence, assumption or permanent repayment of Indebtedness (including Indebtedness issued,
incurred or assumed as a result of, or to finance, any relevant transaction and for which any such financial ratio is being calculated)
and all sales, transfers and other dispositions or discontinuance of any subsidiary, line of business or division, in each case that have
occurred during the four consecutive fiscal quarter period of the Borrower being used to calculate such financial ratio (the “Reference
Period”), or subsequent to the end of the Reference Period but prior to such date or prior to or simultaneously with the event
for which a determination under this definition is made, as if each such event occurred on the first day of the Reference Period.
“Product”
means (i) those pharmaceutical or biological products (and described in reasonable detail) on Schedule 2 attached hereto,
and (ii) any current or future pharmaceutical or biological product developed, distributed, dispensed, imported, exported, labeled,
promoted, manufactured, licensed, marketed, sold or otherwise commercialized by any Obligor or any of its Subsidiaries, including any
such product in development or which may be developed.
“Product Authorizations”
means any and all Governmental Approvals, whether U.S. or non-U.S. (including all applicable ANDAs, NDAs, INDs, Product Standards,
supplements, amendments, pre- and post- approvals, governmental price and reimbursement approvals and approvals of applications for regulatory
exclusivity) of any Regulatory Authority, in each case, necessary to be held or maintained by, or for the benefit of, any Obligor or any
of its Subsidiaries for the ownership, use or commercialization of any Product or for any Product Commercialization and Development Activities
with respect thereto in any country or jurisdiction.
“Product Commercialization
and Development Activities” means, with respect to any 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 or similar payments), or any similar or other activities the purpose of which is to commercially exploit
such Product.
“Product Standards”
means all safety, quality and other specifications and standards applicable to any Product, including all pharmaceutical, biological and
other standards promulgated by Standards Bodies.
“Prohibited Payment”
means 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” means, with respect to any Lender, the percentage obtained by dividing (i) the sum of the Commitments (or, if
the Commitments are terminated, the outstanding principal amount of the Loans) of such Lender then in effect by (ii) the sum of the
Commitments (or, if the Commitments are terminated, the outstanding principal amount of the Loans) of all Lenders then in effect.
“Qatari Business
Day” has the meaning set forth in Section 14.02(b).
“QIA Lender”
means any Lender that is an Affiliate of Qatar Investment Authority.
“QIA Lender Notice”
has the meaning set forth in Section 14.02(b).
“Qualified Equity
Interest” means, with respect to any Person, any Equity Interest of such Person that is not a Disqualified Equity Interest.
“Qualified Plan”
means 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 any Obligor or any ERISA Affiliate thereof or to which any Obligor 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.
“Qualifying IPO”
means (a) a transaction in which the common Equity Interests of a BXCL 701 Subsidiary or an IPO Co. are publicly-listed (whether
through an initial public offering, a direct listing or otherwise) on a major stock exchange in the United States, Canada, the United
Kingdom or the Kingdom of the Netherlands (including the New York Stock Exchange, NASDAQ Stock Market or London Stock Exchange) or (b) the
consummation of any merger, acquisition, contribution, equity purchase or similar reorganization transaction or series of transactions
resulting in the combination of a BXCL 701 Subsidiary and any special purpose acquisition company or similar entity, where the common
Equity Interests of such surviving entity (or any direct or indirect parent thereof) are publicly listed on a major stock exchange in
the United States, Canada, the United Kingdom or the Kingdom of the Netherlands (including the New York Stock Exchange, NASDAQ Stock Market
or London Stock Exchange); provided, that in the case of each of the foregoing, (i) the applicable BXCL 701 Subsidiary shall
receive proceeds from such transaction of no less than $50,000,000 and (ii) more than 50% of the economic and voting equity interests
of the applicable BXCL 701 Subsidiary must be held at all times by the Obligors and subject to a first priority Lien in favor of the Administrative
Agent, until such time as a Qualifying IPO is consummated. For purposes of the foregoing proviso, the applicable BXCL 701 Subsidiary shall
be the BXCL 701 Subsidiary whose common Equity Interests will be publicly listed, the BXCL 701 Subsidiary party to such merger, acquisition,
contribution, equity purchase or similar reorganization or, in the case of a public offering of common Equity Interests by an IPO Co.,
the BXCL 701 Subsidiary of which the IPO Co. will be the direct parent or managing member after giving effect to such Qualifying IPO.
“Real Property
Security Documents” means any Mortgage Deliverables, Landlord Consents or Bailee Letters.
“Recipient”
means any Lender or any other recipient of any payment to be made by or on account of any Obligation.
“Referral Source”
has the meaning set forth in Section 7.07(b).
“Register”
has the meaning set forth in Section 14.05(d).
“Registration
Rights Agreement” means that certain amended and restated Registration Rights
Agreement, dated as of the ClosingSecond Amendment Effective
Date, by and among the Borrower and the purchasers identified therein.
“Regulation T”
means Regulation T of the Board of Governors of the Federal Reserve System, as amended.
“Regulation U”
means Regulation U of the Board of Governors of the Federal Reserve System, as amended.
“Regulation X”
means Regulation X of the Board of Governors of the Federal Reserve System, as amended.
“Regulatory Approvals”
mean, with respect to a Product, the approval of the applicable Regulatory Authority necessary for the testing, manufacturing, use, storage,
supply, promotion, marketing or sale of such Product for a particular indication in a particular jurisdiction.
“Regulatory Authority”
means 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.
“Reinvestment
Period” has the meaning set forth in Section 3.03(b)(i).
“Related Parties”
has the meaning set forth in Section 14.16.
“Resignation Effective
Date” has the meaning set forth in Section 12.09.
“Resolution Authority”
means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
“Responsible Officer”
of any Person means each of the president, chief executive officer, chief financial officer and similar officer of such Person.
“Restricted Payment”
means any dividend or other distribution (whether in cash, Equity Interests or other property) with respect to any Equity Interests of
any Obligor or any of its Subsidiaries, or any payment (whether in cash, Equity Interests or other property), including any sinking fund
or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any such Equity Interests
of any Obligor or any of its Subsidiaries, or any option, warrant or other right to acquire any such Equity Interests of any Obligor or
any of its Subsidiaries; provided, that any payments on Indebtedness convertible or exchangeable into Equity Interests shall not
be Restricted Payments.
“Restrictive Agreement”
means any Contract or other arrangement that prohibits, restricts or imposes any condition upon (i) the ability of any Obligor or
any of its Subsidiaries to create, incur or permit to exist any Lien in favor of the Administrative Agent or the Lenders upon any of its
properties or assets (other than (x) customary provisions in Contracts (including leases and in-bound licenses of Intellectual Property)
restricting the assignment thereof and (y) restrictions or conditions imposed by any Contract governing secured Permitted Indebtedness
permitted under Section 9.01(j), to the extent that such restrictions or conditions apply only to the property or assets securing
such Indebtedness), or (ii) the ability of any Obligor or any of its Subsidiaries to make Restricted Payments with respect to any
of their respective Equity Interests or to make or repay loans or advances to any other Obligor or any of its Subsidiaries or such other
Obligor or to Guarantee Indebtedness of any other Obligor or any of its Subsidiaries thereof or such other Obligor.
“Revenue”
means, for any relevant fiscal period, the consolidated net revenues of the Borrower and its Subsidiaries attributable to BXCL 501 for
such fiscal period, as recognized on the income statement of the Borrower and its Subsidiaries, determined on a consolidated basis in
accordance with GAAP.
“Revenue Cure
Payment” means, with respect to any fiscal quarter of the Borrower to which the Minimum Revenue Covenant applies, the amount,
if positive, by which Revenue for the applicable six (6) consecutive month period ending on the last day of such fiscal quarter is
less than the Minimum Revenue for such period; provided that the Revenue Cure Payment shall in no event be less than $1,000,000.
“Revenue Interest
Financing” means the transaction contemplated by the Revenue Interest Financing Agreement relating to the Revenue Interest
Financing Secured Product.
“Revenue Interest
Financing Agreement” means the Revenue Interest Financing Agreement by and between the Borrower, the purchasers party thereto
and Oaktree, as administrative agent for the purchasers, dated as of the date hereof (as amended, restated, amended and restated, supplemented
or otherwise modified from time to time in accordance with the Permitted Intercreditor Agreement).
“Revenue Interest
Financing Secured Product” means BXCL 501, including any improvements or modifications thereto, across all marketed indications
in the United States.
“Sanction”
means any international economic or financial sanction or trade embargo imposed, administered or enforced from time to time by the United
States Government (including OFAC), the United Nations Security Council, the European Union or its Member States, HerHis
Majesty’s Treasury or other relevant sanctions authority where the Borrower is located or conducts business.
“Sanctioned Person”
means, at any time, (i) any Person listed in any Sanctions-related list of designated Persons maintained by the United States Government
(including OFAC), the United Nations Security Council, the European Union or its Member States, HerHis
Majesty’s Treasury, or other relevant sanctions authority, (ii) any Person organized or resident in a Designated Jurisdiction
or (iii) any Person fifty percent (50%) or more owned or is controlled by any such Person or Persons described in the foregoing clause
(i) or (ii).
“Scheduled
Unavailability Date” has the meaning set forth in Section 5.05(a)(ii).
“Second
Amendment” means the Second Amendment to this Agreement, dated as of December 5, 2023.
“Second
Amendment Effective Date” has the meaning set forth in the Second Amendment.
“SEC”
means the U.S. Securities and Exchange Commission and any successor agency thereto.
“Secured Parties”
means the Lenders, the Administrative Agent and any of their respective permitted transferees or assigns.
“Securities Act”
means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Security Agreement”
means the Security Agreement, delivered pursuant to Section 6.01(f), among the Obligors and the Administrative Agent, granting a
security interest in the Obligors’ personal property in favor of the Administrative Agent, for the benefit of the Secured Parties.
“Security Documents”
means, collectively, the Security Agreement, each Short-Form IP Security Agreement, each Real Property Security Document, and each
other security document, control agreement or financing statement required or recommended to perfect Liens in favor of the Secured Parties
for purposes of securing the Obligations.
“Shared Services
Agreement” means the Second Amended and Restated Separation and Shared Services Agreement, dated as of March 6, 2020,
by and between BioXcel LLC and the Borrower, as in effect on the date hereof.
“Short-Form IP
Security Agreements” means short-form copyright, patent or trademark (as the case may be) security agreements, dated as
of the Closing Date and substantially in the form of Exhibit C, D and E to the Security Agreement, entered into by one or more Obligors
in favor of the Secured Parties, each in form and substance satisfactory to the Administrative Agent (and as amended, modified or replaced
from time to time).
“Solvent”
means, as to any Person as of any date of determination, that on such date (i) the fair value of the property of such Person is greater
than the total amount of liabilities, including contingent liabilities, of such Person, (ii) the present fair saleable value of such
Person is not less than the amount that will be required to pay the probable liability of such Person on its debts as they become absolute
and matured, (iii) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person’s
ability to pay such debts and liabilities as they mature and (iv) such Person is not engaged in a business or transaction, and is
not about to engage in a business or transaction, for which such Person’s property would constitute an unreasonably small capital.
The amount of any contingent liability at any time shall be computed as the amount that, in light of all of the facts and circumstances
existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.
“Standard Bodies”
means any of the organizations that create, sponsor or maintain safety, quality or other standards, including ISO, ANSI, CEN and SCC and
the like.
“Step-Down
Date” has the meaning set forth in the definition of “Minimum Liquidity Amount.”
“Step-Up Date”
has the meaning set forth in the definition of “Minimum Liquidity Amount.”
“Stock Purchase
Agreement” has the meaning set forth in Section 2.08(a).
“Subsidiary”
means, with respect to any Person (the “parent”) at any date, any corporation, limited liability company, partnership,
association or other entity of which securities or other ownership interests representing more than fifty percent (50%) of the equity
or more than fifty percent (50%) of the ordinary voting power or, in the case of a partnership, more than fifty percent (50%) of the general
partnership interests are, as of such date, owned, controlled or held, directly or indirectly. Unless otherwise specified, all references
herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of the Borrower.
“Subsidiary Guarantors”
means each Subsidiary of the Borrower identified under the caption “SUBSIDIARY GUARANTORS” on the signature pages hereto
and each Subsidiary of the Borrower that becomes, or is required to become, a “Subsidiary Guarantor” after the date
hereofClosing Date pursuant to Section 8.11(a) or 8.11(b).
“Successor
Rate” has the meaning set forth in Section 5.05(a)(iii)(B).
“Taxes”
means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees
or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
“Termination Conditions”
has the meaning set forth in Section 13.03.
“Term
SOFR” means for any Interest Period the rate per annum equal to the Term SOFR Screen Rate two U.S. Government Securities
Business Days prior to the commencement of such Interest Period with a term equivalent to three months; provided that if the rate is not
published prior to 11:00 a.m. on such determination date then Term SOFR means the Term SOFR Screen Rate on the first U.S. Government
Securities Business Day immediately prior thereto; provided that if the Term SOFR Screen Rate determined in accordance with the foregoing
would otherwise be less than 2.50% or greater than 5.50%, the Term SOFR shall be deemed to be 2.50% or 5.50%, as applicable, for purposes
of this Agreement.
“Term
SOFR Replacement Date” has the meaning assigned to such term in Section 5.05(a)(iii)(A).
“Term
SOFR Screen Rate” means the forward-looking SOFR term rate administered by CME (or any successor administrator satisfactory
to the Administrative Agent) and published on the applicable Bloomberg screen page (or such other commercially available source providing
such quotations as may be designated by the Administrative Agent from time to time).
“Ticking Fee”
has the meaning set forth in Section 2.06.
“Title IV Plan”
means 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 any Obligor or any ERISA Affiliate thereof or to which any Obligor 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.
“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.
“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.
“Trading Day”
means a day on which the Common Stock is traded on a Trading Market or, if the Common Stock is not traded on a Trading Market, then on
the principal securities exchange or securities market on which the Common Stock is then traded.
“Trading Market”
means any market or exchange of The Nasdaq Stock Market LLC or the New York Stock Exchange.
“Tranche A-1
Term Loans” has the meaning assigned to such term in Section 2.01(a)(i).
“Tranche
A-2 Term Loans” has the meaning assigned to such term in Section 2.01(a)(ii).
“Tranche B Term
Loans” has the meaning assigned to such term in Section 2.01(a)(iiiii).
“Tranche C Term
Loans” has the meaning assigned to such term in Section 2.01(a)(iiiiv).
“Tranche
D Term Loans” has the meaning assigned to such term in Section 2.01(a)(v).
“Transactions”
means (a) the negotiation, preparation, execution, delivery and performance by each Obligor of this Agreement and the other Loan
Documents to which such Obligor is (or is intended to be) a party, the making of the Loans hereunder, and all other transactions contemplated
pursuant to this Agreement and the other Loan Documents, including the creation of the Liens pursuant to the Security Documents, and (b) the
payment of all fees and expenses incurred or paid by the Obligors in connection with the foregoing.
“UCC”
means, with respect to any applicable jurisdictions, the Uniform Commercial Code as in effect in such jurisdiction, as may be modified
from time to time.
“UK Financial
Institutions” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended from time to time)
promulgated by the United Kingdom Prudential Regulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as amended
from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment
firms, and certain affiliates of such credit institutions or investment firms.
“United States”
or “U.S.” means the United States of America, its fifty states and the District of Columbia.
“U.S.
Government Securities Business Day” means any day, except for (i) a Saturday, (ii) a Sunday or (iii) a day
on which the Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be closed
for the entire day for purposes of trading in United States government securities.
“U.S. Person”
means a “United States Person” within the meaning of Section 7701(a)(30) of the Code.
“U.S. Tax Compliance
Certificate” has the meaning set forth in Section 5.03(f)(ii)(B)(3).
“USPTO”
has the meaning set forth in Section 8.19(a).
“VWAP”
means, for any date, the price determined by the first of the following clauses that applies: (i) if the Common Stock is then listed
or quoted on a Trading Market, the daily volume weighted average price of the Common Stock for such date (or the nearest preceding date)
on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg L.P. (based on a Trading Day from 9:30
a.m. (New York City time) to 4:00 p.m. (New York City time)), (ii) if the Common Stock is not then listed on a Trading
Market or quoted for trading on the OTC Bulletin Board and if prices for the Common Stock are then reported in the “Pink Sheets”
published by OTC Markets Group Inc. (or a similar organization or agency succeeding to its functions of reporting prices), the most recent
bid price per share of the Common Stock so reported or (iii) in all other cases, the fair market value of a share of Common Stock
as determined by an independent nationally recognized investment banking, accounting or valuation firm selected in good faith by the Borrower
and reasonably acceptable to the Administrative Agent, the fees and expenses of which shall be paid by the Borrower.
“Warrant Obligations”
means all Obligations of Borrower arising out of, under or in connection with the Company WarrantWarrants
or the 701 Warrants.
“Withdrawal Liability”
means, 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.
“Withholding Agent”
means the Borrower and the Administrative Agent.
“Write-Down and
Conversion Powers” means, (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of
such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down
and conversion powers are described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, any powers
of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any
UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into
shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect
as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In
Legislation that are related to or ancillary to any of those powers.
1.02 Accounting
Terms and Principles. Unless otherwise specified, all accounting terms used in each Loan Document
shall be interpreted, and all accounting determinations and computations thereunder (including under Section 10 and any definitions
used in such calculations) shall be made, in accordance with GAAP. Unless otherwise expressly provided, all financial covenants and defined
financial terms shall be computed on a consolidated basis for the Borrower and its Subsidiaries, in each case without duplication. If
the Borrower requests an amendment to any provision hereof to eliminate the effect of (a) any change in GAAP or the application thereof
or (b) the issuance of any new accounting rule or guidance or in the application thereof, in each case, occurring after the
date of this Agreement, then the Lenders and Borrower agree that they will negotiate in good faith amendments to the provisions of this
Agreement that are directly affected by such change or issuance with the intent of having the respective positions of the Lenders and
Borrower after such change or issuance conform as nearly as possible to their respective positions as of the date of this Agreement and,
until any such amendments have been agreed upon, (i) the provisions in this Agreement shall be calculated as if no such change or
issuance has occurred and (ii) the Borrower shall provide to the Lenders a written reconciliation in form and substance reasonably
satisfactory to the Lenders, between calculations of any baskets and other requirements hereunder before and after giving effect to such
change or issuance. Notwithstanding anything to the contrary in this Agreement, all obligations of any Person that would have been treated
as operating leases pursuant to GAAP prior to the effectiveness of Accounting Standards Codification 842 shall continue to be treated
as operating leases for purposes of the definitions of “Capital Lease Obligations” and “Indebtedness.”
1.03 Interpretation.
For all purposes of this Agreement, except as otherwise expressly provided herein or unless the context otherwise requires,
(a) the
terms defined in this Agreement include the plural as well as the singular and vice versa;
(b) words
importing gender include all genders;
(c) any
reference to a Section, Annex, Schedule or Exhibit refers to a Section of, or Annex, Schedule or Exhibit to, this Agreement;
(d) any
reference to “this Agreement” refers to this Agreement, including all Annexes, Schedules and Exhibits hereto, and the words
herein, hereof, hereto and hereunder and words of similar import refer to this Agreement and its Annexes, Schedules and Exhibits as a
whole and not to any particular Section, Annex, Schedule, Exhibit or any other subdivision;
(e) references
to days, months and years refer to calendar days, months and years, respectively;
(f) all
references herein to “include” or “including” shall be deemed to be followed by the words “without limitation”;
(g) the
word “from” when used in connection with a period of time means “from and including” and the word “until”
means “to but not including”;
(h) the
words “asset” and “property” shall be construed to have the same meaning and effect and to refer broadly to any
and all assets and properties, whether tangible or intangible, real or personal, including cash, securities, rights under contractual
obligations and permits and any right or interest in any such assets or property;
(i) accounting
terms not specifically defined herein (other than “property” and “asset”) shall be construed in accordance with
GAAP, subject to Section 1.02;
(j) the
word “will” shall have the same meaning as the word “shall”;
(k) where
any provision in this Agreement or any other Loan Document refers to an action to be taken by any Person, or an action which such Person
is prohibited from taking, such provision shall be applicable whether such action is taken directly or, to the knowledge of such Person,
indirectly; and
(l) references
to any Lien granted or created hereunder or pursuant to any other Loan Document securing any Obligations shall deemed to be a Lien for
the benefit of the Secured Parties.
Unless otherwise expressly
provided herein, references to organizational documents, agreements (including the Loan Documents) and other contractual instruments shall
be deemed to include all subsequent amendments, restatements, extensions, supplements and other modifications thereto permitted by the
Loan Documents. Any definition or reference to any Law shall include all statutory and regulatory provisions consolidating, amending,
replacing, supplementing or interpreting such Law.
If any payment required to be made pursuant to
the terms and conditions of any Loan Document falls due on a day which is not a Business Day, then such required payment date shall be
extended to the immediately following Business Day. For purposes of determining compliance with any covenant (including the computation
of any financial covenant) contained herein, Indebtedness of the Obligors and their Subsidiaries will be deemed to be equal to 100%
of the outstanding principal amount thereof or payment obligations with respect thereto at the time of determination thereof, or with
respect to any Hedging Agreements, the amount that would be payable if the agreement governing such Hedging Agreements were terminated
on the date of termination.
1.04 Division.
For all purposes under the Loan Documents, in connection with any division or plan of division under Delaware law (or any comparable event
under a different jurisdiction’s laws) (a “Division”), if (a) any asset, right, obligation or liability
of any Person becomes the asset, right, obligation or liability of a different Person, then it shall be deemed to have been transferred
from the original Person to the subsequent Person, and (b) any new Person comes into existence, such new Person shall be deemed to
have been organized on the first date of its existence by the holders of its equity interests at such time.
SECTION 2.
THE COMMITMENT AND THE LOANS; EQUITY INVESTMENT
2.01 Loans.
(a) On
the terms and subject to the conditions of this Agreement, each Lender agrees:
| (i) | to make Loans to the Borrower in a principal amount equal to the amount of such Lender’s Tranche
A-1 Commitment on the Applicable Funding Date for the Tranche A-1
Term Loans (“Tranche A |
-1
Term Loans”);
| (ii) | to make Loans to the Borrower in a principal amount equal to the amount of such Lender’s Tranche
A-2 Commitment on the Applicable Funding Date for the Tranche A-2 Term Loans (“Tranche A-2
Term Loans”); |
| (iii) | to make Loans to the Borrower in a principal amount equal to the amount
of such Lender’s Tranche B Commitment on the Applicable Funding Date for the Tranche B Term Loans (“Tranche
B Term Loans”); and |
(iiiiv) to
make Loans to the Borrower in a principal amount equal to the amount of such Lender’s Tranche C Commitment on the Applicable Funding
Date for the Tranche C Term Loans (“Tranche C Term Loans”); and
| (v) | to make Loans to the Borrower in a principal amount equal to the amount
of such Lender’s Tranche D Commitment on the Applicable Funding Date for the Tranche D Term Loans (“Tranche D Term Loans”). |
(b) No
amounts paid or prepaid with respect to any Loan may be re-borrowed.
(c) Any
term or provision hereof (or of any other Loan Document) to the contrary notwithstanding, Loans made to the Borrower will be denominated
solely in Dollars and will be repayable solely in Dollars and no other currency.
2.02 Borrowing
Procedures. At least five (5) Business Days prior to any Applicable Funding Date (other
than with respect to Tranche A-2 Term Loans) (or such shorter period agreed by the Lenders), the Borrower shall deliver to
the Administrative Agent an irrevocable Borrowing Notice in the form of Exhibit B signed by a duly authorized representative
of the Borrower (which notice, if received by the Administrative Agent on a day that is not a Business Day or after 10:00 A.M. (Eastern
time) on a Business Day, shall be deemed to have been delivered on the next Business Day). Each Borrowing Notice shall be for the full
amount of the applicable Commitments and no Borrowing Notice for less than such full amount shall be permitted.
2.03 Funding
of Borrowings. Promptly following receipt of any written Borrowing RequestNotice
the Administrative Agent shall advise each Lender of the details thereof and of the amount of such Lender’s Loan to be made as part
of the requested Borrowing. Each Lender shall make each Loan to be made by it hereunder on the proposed date thereof solely by wire transfer
of immediately available funds, by 2:00 p.m. New York City time, to the account of the Administrative Agent most recently designated
by it for such purpose by notice to the Lenders. Upon receipt of all funds the Administrative Agent will make such Loans available to
the Borrower promptly by wire transfer of the amounts so received, in like funds, to an account designated by the Borrower in the applicable
Borrowing RequestNotice.
2.04 Notes.
If requested by any Lender, the Loan of such Lender shall be evidenced by one or more Notes. The Borrower shall prepare, execute and deliver
to the Lender such promissory note(s) substantially in the form attached hereto as Exhibit A.
2.05 Use
of Proceeds. The Borrower shall use the proceeds of the Loans (i) for U.S. commercial launch
of BXCL 501, clinical development of expanded indications for BXCL 501, and clinical development of BXCL 701 and the Emerging 701 Pipeline,
and (ii) for working capital and general corporate purposes, including the payment of fees and expenses associated with this Agreement
and to support the Borrower’s research and development pipeline.
2.06 Ticking
Fees. The Borrower shall pay to the Administrative Agent, for the account of the Lenders, a ticking
fee (the “Ticking Fee”) equal to 0.750% per annum multiplied by the daily undrawn amount of the outstanding
Commitments, on (i) each Payment Date prior to the latest Commitment Termination Date,
commencing with the first Payment Date following the date that is 120 days after the funding of the Tranche A-1
Term Loans, (ii) each date on which a Tranche B Term Loan or,
Tranche C Term Loan or Tranche D Term Loan is funded, in each case solely with respect to such
funded Loans for the period from the prior Payment Date through, and including, the date of such funding, (iii) each date on which
any Commitments expire or are terminated, in each case solely with respect to such expired or terminated Commitments for the period from
the prior Payment Date through, and including, the date of such expiration or termination and (iv) upon acceleration or maturity
of the Loans hereunder, solely with respect to any then-outstanding and undrawn Commitments for the period from the prior Payment Date
through, and including, the date of such acceleration or maturity.
2.07 Extension
of Maturity Date. The Borrower shall have the right to extend the Maturity Date to April 19,
2028 upon satisfaction of all of the following conditions precedent, which must be satisfied prior to the effectiveness of the extension
of the Maturity Date:
| (a) | Extension Request. The Borrower shall deliver written notice of a request for extension to the
Administrative Agent no earlier than September 21, 2026 and not later than October 21, 2026. |
| (b) | BXCL 501 FDA Alzheimer’s Approval. The BXCL 501 FDA Alzheimer’s Approval shall have
been received on or prior to December 31, 2024 and the Administrative Agent shall have received evidence thereof. |
| (c) | No Default. At the time the Borrower delivers written notice of its request for extension to the
Administrative Agent, there shall exist no Default or Event of Default. |
| (d) | No Acceleration. The Loans shall not have become due and payable for any reason in accordance with
Section 11.02. |
| (e) | Representations and Warranties. At the time the Borrower delivers written notice of its request
for extension to the Administrative Agent, the representations and warranties contained in this Agreement and in the other Loan Documents
delivered pursuant to Section 6.01(a) shall be true and correct in all material respects (unless such representations
are already qualified by reference to materiality, Material Adverse Effect or similar language, in which case such representations and
warranties shall be true and correct in all respects) on and as of the date of such extension, except to the extent such representations
and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct
in all respects on and as of such earlier date.` |
2.08 Equity
Investment.
(a) On
any date following the Closing Date and prior to the earlier of (i) Maturity Date and (ii) the repayment in full of the Loans,
the Lenders may, severally and not jointly, purchase up to an aggregate of $5,000,000 (based on purchase price) of Common Stock from the
Company, in either one (1) or two (2) closings (one for all Oaktree Lenders and one for all QIA Lenders), with the amount of
Common Stock to be purchased by each Lender to be determined according to such Lender’s Equity Purchase Right, in each case in accordance
with the terms of a stock purchase agreement in substantially the form attached hereto as Exhibit H (the “Stock
Purchase Agreement”) (such purchase, an “Equity Investment”). The price per share of Common Stock
for each Equity Investment will equal 110% of the average of the daily VWAPs over the 30 consecutive Trading Days preceding the date of
the notice contemplated by Section 2.08(b) below (the “30-day VWAP”). In connection with any Equity
Investment, the Borrower shall enter into a registration rights agreement with the purchasers under the Stock Purchase Agreement on substantially
the same terms as the Registration Rights Agreement.
(b) To
exercise the right to make an Equity Investment, the Administrative Agent shall provide notice in writing to the Borrower of the applicable
Lenders’ election to make an Equity Investment two (2) Business Days prior to the proposed closing date for such Equity Investment.
Such notice must include (i) the price per share of Common Stock to be purchased in the Equity Investment, calculated in accordance
with Section 2.08(a) above, (ii) appropriate backup for the 30-day VWAP (e.g., Bloomberg Terminal screenshot), (iii) the
number of shares of Common Stock to be purchased by each applicable Lender in accordance with such Lender’s Equity Purchase Right
and (iv) the irrevocable commitment of each such Lender to complete such Equity Investment in accordance with this Section 2.08
and the Stock Purchase Agreement two (2) Business Days following delivery of the notice.
(c) Notwithstanding
anything to the contrary herein, the maximum number of shares issuable by the Borrower pursuant to the Stock Purchase Agreement and the
Company WarrantWarrants shall not exceed 5,593,2705,851,606
(as may be proportionally adjusted for stock splits or combinations following the date of this AgreementSecond
Amendment Effective Date), with the amount of any Equity Investment being reduced pro rata among the Lenders based on their
respective Equity Purchase Rights if required as a result of the foregoing cap.
SECTION 3.
PAYMENTS OF PRINCIPAL AND INTEREST, ETC.
3.01 Scheduled
Repayments and Prepayments Generally; Application. The Borrower hereby promises to pay to the
Administrative Agent for the account of each Lender (as such amounts may in each case be reduced from time to time in accordance with
Section 3.03): on the Maturity Date, all outstanding Obligations in full (together with the accrued and unpaid interest and
any other accrued and unpaid charges thereon and all other obligations due and payable by the Borrower under this Agreement). Except as
otherwise provided in this Agreement, each payment (including each repayment and prepayment) by the Borrower (other than fees payable
pursuant to the Fee Letter) will be deemed to be made ratably in accordance with the Lenders’ Proportionate Shares. On any date
occurring prior to the Maturity Date that payment or prepayment in full of the Loans hereunder occurs, the Borrower shall pay in full
all outstanding Obligations, which shall include the Prepayment Fee, if applicable.
3.02 Interest.
(a) Interest
Generally. The outstanding principal amount of the Loans shall accrue interest from the date made to repayment (whether by acceleration
or otherwise and whether voluntary or mandatory) at the Interest Rate.
(b) Default
Interest. Notwithstanding the foregoing, upon the occurrence and during the continuance of any Event of Default, the Interest Rate
shall increase automatically by two percent (2.0%) per annum (the Interest Rate, as increased pursuant to this Section 3.02(b),
being the “Default Rate”). If any Obligation (including fees, costs and expenses payable hereunder) is not paid
when due (giving effect to any applicable grace period) under any applicable Loan Document, the amount thereof shall accrue interest at
the Default Rate and such Default Rate interest shall be due and payable in cash on demand.
(c) Interest
Payment Dates. Accrued interest on the Loans shall be payable in arrears on each Payment Date in cash, and upon the payment or prepayment
of the Loans (on the principal amount being so paid or prepaid); provided that interest payable at the Default Rate shall also
be payable in cash from time to time on demand by the Administrative Agent. Notwithstanding the foregoing, commencing on the first Payment
Date on which interest on the Loans is owed and continuing through, and including, the third anniversary
of such Payment Date, 2.250March 31, 2025, any interest above 8.00% per
annum of the interest for each applicable period shall be payable in kind by capitalizing
and adding such interest to the outstanding principal amount of the Loans on such Payment Date (“PIK Interest”);
provided, that the Borrower may, at its option, irrevocably elect, by written notice to the Administrative Agent, by 10:00 a.m. (Eastern
time) three (3) Business Days prior to any Payment Date, to decrease the rate of interest per annum capitalized as PIK Interest for
such Payment Date by paying such amount in cash, or that no PIK Interest will be capitalized for such Payment Date, and, in each case,
Borrower will pay such amount of interest that is owing and not capitalized as PIK Interest in cash as regular interest on such Payment
Date. For purposes of this Agreement and the other Loan Documents, PIK Interest capitalized pursuant to this Section 3.02 shall
constitute a portion of the principal amount outstanding of the Loans hereunder and shall bear interest in accordance with this Section 3
and all references herein or in any other Loan Document to the principal amount of the Loans shall include all interest accrued and
capitalized as a result of any payment of PIK Interest. Any PIK Interest shall automatically be capitalized on the applicable Payment
Date in accordance with the foregoing.
3.03 Prepayments.
(a) Optional
Prepayments.
(i) Subject
to prior written notice pursuant to clause (ii) below, the Borrower shall have the right to optionally prepay in whole or
in part the outstanding principal amount of the Loans on any Business Day for an amount equal to the sum of (A) the aggregate principal
amount of the Loans being prepaid, (B) any accrued but unpaid interest on the principal amount of the Loans being prepaid, (C) any
applicable Prepayment Fee and (D) if applicable, other unpaid amounts then due and owing pursuant to this Agreement and the other
Loan Documents (such aggregate amount, the “Prepayment Price”); provided that each partial prepayment
of principal of Loans shall be in an aggregate amount at least equal to $5,000,000 and integral multiples of $1,000,000 in excess thereof.
(ii) A
notice of optional prepayment shall be effective only if received by the Administrative Agent not later than 2:00 p.m. (Eastern time)
on a date not less than two (2) (nor more than five (5)) Business Days prior to the proposed prepayment date; provided that
a notice of optional prepayment may state that such notice is conditional upon the effectiveness of other credit facilities or the receipt
of the proceeds from the issuance of other Indebtedness or the occurrence of some other identifiable event or condition, in which case
such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date of prepayment)
if such condition is not satisfied. Each notice of optional prepayment shall specify the proposed prepayment date, the Prepayment Price,
the principal amount to be prepaid and any conditions to prepayment (if applicable).
(b) Mandatory
Prepayments.
(i) Mandatory
Prepayments for Casualty Events or Asset Sales.
(A) Within
three (3) Business Days of the receipt of Net Cash Proceeds from the occurrence of any Casualty Event or Asset Sale (that is not
otherwise permitted by Section 9.09 (other than pursuant to clause (l) thereof)), the Borrower shall make a mandatory
prepayment of the Loans in an amount equal to the sum of (i) one hundred percent (100%) of the Net Cash Proceeds received by the
Borrower or any of its Subsidiaries with respect to such Asset Sale or insurance proceeds or condemnation awards in respect of such Casualty
Event, as the case may be, (ii) any accrued but unpaid interest on any principal amount of the Loans being prepaid and (iii) any
applicable Prepayment Fee; provided that, so long as no Default has occurred and is continuing or shall result therefrom, if, within
ten (10) Business Days following the occurrence of any such Casualty Event or Asset Sale as a result of which the Borrower or any
of its Subsidiaries receives Net Cash Proceeds in an aggregate amount less than $10,000,000, a Responsible Officer of the Borrower delivers
to the Administrative Agent a notice to the effect that the Borrower or the applicable Subsidiary intends to apply the Net Cash Proceeds
from such Asset Sale or insurance proceeds or condemnation awards in respect of such Casualty Event, to reinvest in the business of the
Borrower or any of its Subsidiaries (a “Reinvestment”), then such Net Cash Proceeds of such Asset Sale or insurance
proceeds or condemnation awards in respect of such Casualty Event may be applied for such purpose in lieu of such mandatory prepayment
to the extent such Net Cash Proceeds of such Asset Sale or insurance proceeds or condemnation awards in respect of such Casualty Event
are actually applied for such purpose; provided, further, that, if such Casualty Event or Asset Sale occurs with respect
to any Obligor, such Reinvestment shall be made in the business of an Obligor; provided, further, that, in the event that
Net Cash Proceeds have not been so applied within three hundred sixty-five (365) days (the “Reinvestment Period”)
following the occurrence of such Casualty Event or Asset Sale, the Borrower shall no later than the end of such period make a mandatory
prepayment of the Loans in an aggregate amount equal to the sum of (i) one hundred percent (100%) of the unused balance of such Net
Cash Proceeds received by any Obligor or any of its Subsidiaries with respect to such Asset Sale or insurance proceeds or condemnation
awards in respect of such Casualty Event, (ii) any accrued but unpaid interest on any principal amount of the Loans being prepaid
and (iii) any applicable Prepayment Fee. Notwithstanding the foregoing, no mandatory prepayment shall be required pursuant to this
Section 3.03(b)(i)(A) as a result of any Permitted License.
(B) Notwithstanding
Section 3.03(b)(i)(A), (i) any BXCL 701 Secondary Disposition Proceeds or (ii) any BXCL 701 Primary Disposition Proceeds
distributed to the Borrower or any Subsidiary that is not a BXCL 701 Subsidiary shall, in each case at the written election of the Administrative
Agent, be subject to the following: (x) 50% of such proceeds shall be deposited into a blocked account (the “BXCL 701 Disposition
Proceeds Account”), and (y) the remainder of such proceeds may be retained by the Borrower or any other Obligor and used
for any purpose permitted by this Agreement and the Loan Documents, except such proceeds shall not be used for any Restricted Payments;
provided that the amount required to be deposited in the BXCL 701 Disposition Proceeds Account at any time shall not exceed 50%
of the Loans outstanding at such time. The contents of the BXCL 701 Disposition Proceeds Account shall be released to the Borrower upon
the delivery of a certification by the Borrower that net product revenue attributable to BXCL 501 for any trailing twelve (12) consecutive
month period exceeds $45,000,000 for such period. The full amount in the BXCL 701 Disposition Proceeds Account shall be applied to prepay
the Loans (i) if such amount has not been released by December 31, 2024 or (ii) at the option of the Administrative Agent,
upon the occurrence of an Event of Default.
(C) Notwithstanding
Section 3.03(b)(i)(A), any BXCL 701 Subsidiary shall use the BXCL 701 Primary Disposition Proceeds received by it solely (i) for
the development and commercialization of BXCL 701 and the Emerging 701 Pipeline, (ii) for the acquisition or in-licensing of assets
or for research and development purposes, in each case within the oncology field, (iii) in the case of a Qualifying IPO by IPO Co.,
to purchase Equity Interests in BXCL 701 Subsidiaries in connection with such Qualifying IPO, (iv) for reasonable and customary compensation
expenses and for other ordinary course administrative and operational expenses, or (v) to make distributions to the Borrower or any
Subsidiary that is not a BXCL 701 Subsidiary.
(ii) Mandatory
Prepayments for Debt Issuances. Immediately upon receipt by any Obligor or any of its Subsidiaries of proceeds from any issuance,
incurrence or assumption of Indebtedness other than Indebtedness permitted by Section 9.01, on or after the Closing Date,
the Borrower shall prepay the Loans and other Obligations in an amount equal to 100% of the cash proceeds received, plus the Prepayment
Fee, if applicable.
(iii) Notice.
The Borrower shall notify the Administrative Agent not later than 12:00 p.m. (Eastern time) on a date not less than two (2) Business
Days prior to any mandatory prepayment.
Each notice of mandatory prepayment shall specify
the proposed prepayment date, the Prepayment Price, the principal amount to be prepaid and the subsection under which the prepayment is
required. Notwithstanding anything in this Section 3.03 to the contrary, any Lender may elect, by written notice to the Administrative
Agent no later than 12:00 p.m. (Eastern time), one (1) Business Day prior to the prepayment date (or such later time as the
Administrative Agent may agree), to decline all or any portion of any mandatory prepayment of its Loans pursuant to this Section 3.03.
Any Lender that fails to deliver such notice to the Administrative Agent in the time frame set forth above shall be deemed to have accepted
its share of any mandatory prepayment. The aggregate amount of the prepayment that would have been applied to prepay Loans but was so
declined may be retained by the Borrower and used for any general corporate purpose not prohibited by this Agreement.
(c) Application.
All prepayments of the Loans shall be applied to principal installments on the Loans in the inverse order of maturity.
(d) Prepayment
Fee. Without limiting the foregoing, whenever the Prepayment Fee is in effect and payable pursuant to the terms hereof or any other
Loan Document, such Prepayment Fee shall be payable on each prepayment of all or any portion of the Loans, whether by optional or mandatory
prepayment, acceleration or otherwise (other than any prepayment pursuant to Section 5.02 or any scheduled amortization payment).
(e) Partial
Prepayments. Prepayments shall be accompanied by accrued interest to the extent required by Section 3.02.
3.04 Commitment
Termination. Each Applicable Commitment shall terminate automatically without further action
upon the earliest of (i) the making by the Lenders of the Loans to which such Applicable Commitment relates on the Applicable Funding
Date, (ii) the last day of the Applicable Availability Period and (iii) the acceleration of the Loans hereunder. The Borrower
shall have the right at any time or from time to time to terminate in full (but not in part) all the then outstanding Applicable Commitments;
provided that the Borrower shall give the Lender at least five (5) Business Days’ notice of each such termination. The
termination of any Applicable Commitment shall be permanent.
SECTION 4.
PAYMENTS, ETC.
4.01 Payments.
(a) Payments
Generally. Each payment of principal, interest and other amounts to be made by the Obligors under this Agreement or any other Loan
Document shall be made (i) in Dollars, in immediately available funds, without deduction, set off or counterclaim, to the Administrative
Agent, for the account of the respective Lenders to which such payment is owed, to the deposit account of the Administrative Agent designated
by the Administrative Agent by notice to the Borrower, and (ii) not later than 2:00 p.m. (Eastern time) on the date on which
such payment is due (each such payment made after such time on such due date may, in the Administrative Agent’s discretion, be deemed
to have been made on the next succeeding Business Day).
(b) Application
of Payments. Notwithstanding anything herein to the contrary, following the occurrence and continuance of an Event of Default, all
payments shall be applied as follows:
(A) first,
to the payment of that portion of the Obligations constituting unpaid fees, indemnities, expenses or other amounts (including fees and
disbursements and other charges of counsel payable under Section 14.03) payable to the Administrative Agent in its capacity
as such;
(B) second,
to the payment of that portion of the Obligations constituting unpaid fees, indemnities, costs, expenses and other amounts (other than
principal and interest, but including fees and disbursements and other charges of counsel payable under Section 14.03, any
Ticking Fees and Prepayment Fees) payable to the Lenders arising under the Loan Documents, ratably among them in proportion to the respective
amounts described in this clause (B) payable to them;
(C) third,
to the payment of that portion of the Obligations constituting accrued and unpaid interest on the Loans, ratably among the Lenders in
proportion to the respective amounts described in this clause (C) payable to them;
(D) fourth,
to the payment of that portion of the Obligations constituting unpaid principal of the Loans, ratably among the Lenders in proportion
to the respective amounts described in this clause (D) payable to them;
(E) fifth,
in reduction of any other Obligation then due and owing, ratably among the Administrative Agent and the Lenders based upon the respective
aggregate amount of all such Obligations owing to them in accordance with the respective amounts thereof then due and payable; and
(F) sixth,
the balance, if any, after all Obligations have been indefeasibly paid in full, to the Borrower or such other Person as may be lawfully
entitled to or directed by the Borrower to receive the remainder.
(c) Non-Business
Days. If the due date of any payment under this Agreement (whether in respect of principal, interest, fees, costs or otherwise) would
otherwise fall on a day that is not a Business Day, such date shall be extended to the next succeeding Business Day, and, in the case
of any payment accruing interest, interest thereon shall continue to accrue and be payable for the period of such extension; provided
that if such next succeeding Business Day would fall after the Maturity Date, payment shall be made on the immediately preceding Business
Day.
4.02 Computations.
All computations of interest and fees hereunder shall be computed on the basis of a year of three hundred and sixty (360) days and actual
days elapsed during the period for which payable.
4.03 Set-Off.
(a) Set-Off
Generally. Upon the occurrence and during the continuance of any Event of Default, the Administrative Agent, each of the Lenders and
each of their Affiliates 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 deposits (general or special, time or demand, provisional or final) at any time held and other indebtedness at any time
owing by the Administrative Agent, any Lender and any of their Affiliates to or for the credit or the account of any Obligor against any
and all of the Obligations, whether or not such Person shall have made any demand and although such obligations may be unmatured. Any
Person exercising rights of set off hereunder agrees promptly to notify the Borrower after any such set-off and application; provided
that the failure to give such notice shall not affect the validity of such set-off and application. The rights of the Administrative Agent,
the Lenders and each of their Affiliates under this Section 4.03 are in addition to other rights and remedies (including other
rights of set-off) that such Persons may have.
(b) Exercise
of Rights Not Required. Nothing contained in Section 4.03(a) shall require the Administrative Agent, any Lender or
any of their Affiliates to exercise any such right or shall affect the right of such Persons to exercise, and retain the benefits of exercising,
any such right with respect to any other indebtedness or obligation of any Obligor.
(c) Payments
Set Aside. To the extent that any payment by or on behalf of any Obligor is made to the Administrative Agent or any Lender, or the
Administrative Agent, any Lender or any Affiliate of the foregoing exercises its right of setoff pursuant to this Section 4.03,
and such payment or the proceeds of such setoff or any part thereof is subsequently invalidated, declared to be fraudulent or preferential,
set aside or required (including pursuant to any settlement entered into by the Administrative Agent, such Lender or such Affiliate in
its discretion) to be repaid to a trustee, receiver or any other party, in connection with any Insolvency Proceeding or otherwise, then
(i) to the extent of such recovery, the obligation or part thereof originally intended to be satisfied shall be revived and continued
in full force and effect as if such payment had not been made or such setoff had not occurred, and (ii) each Lender severally agrees
to pay to the Administrative Agent upon demand its applicable share (without duplication) of any amount so recovered from or repaid by
the Administrative Agent, plus interest thereon from the date of such demand to the date such payment is made at a rate per annum equal
to the Federal Funds Effective Rate from time to time in effect.
SECTION 5.
YIELD PROTECTION, TAXES, ETC.
5.01 Additional
Costs.
(a) Change
in Law Generally. If, on or after the date hereofClosing
Date (or, with respect to any Lender, such later date on which such Lender becomes a party to this Agreement), the adoption
of any Law, or any change in any Law, or any change in the interpretation or administration thereof by any court or other Governmental
Authority charged with the interpretation or administration thereof, or compliance by the Administrative Agent or any of the Lenders (or
its lending office) with any request or directive (whether or not having the force of law) of any such Governmental Authority, shall impose,
modify or deem applicable any reserve (including any such requirement imposed by the Board of Governors of the Federal Reserve System),
special deposit, contribution, insurance assessment or similar requirement, in each case that becomes effective after the date
hereofClosing Date (or, with respect to any Lender, such later date on which
such Lender becomes a party to this Agreement), against assets of, deposits with or for the account of, or credit extended by, a Lender
(or its lending office) or shall impose on a Lender (or its lending office) any other condition affecting the Loans or the Commitment,
and the result of any of the foregoing is to increase the cost to such Lender of making or maintaining the Loans, or to reduce the amount
of any sum received or receivable by such Lender under this Agreement or any other Loan Document, or subject any Lender to any Taxes on
its Loan, Commitment or other obligations, or its deposits, reserves, other liabilities or capital (if any) attributable thereto by an
amount reasonably deemed by such Lender in good faith to be material (other than (i) Indemnified Taxes, (ii) Taxes described
in clauses (ii) through (iv) of the definition of Excluded Taxes and (iii) Connection Income Taxes), then
the Borrower shall pay to such Lender on demand such additional amount or amounts as will compensate such Lender for such increased cost
or reduction.
(b) Change
in Capital Requirements. If a Lender shall have determined that, on or after the date hereofClosing
Date (or, with respect to any Lender, such later date on which such Lender becomes a party to this Agreement), the adoption
of any Law regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any Governmental
Authority charged with the interpretation or administration thereof, or any request or directive regarding capital adequacy (whether or
not having the force of law) of any such Governmental Authority, in each case that becomes effective after the date
hereofClosing Date (or, with respect to any Lender, such later date on which
such Lender becomes a party to this Agreement), has or would have the effect of reducing the rate of return on capital of a Lender (or
its parent) as a consequence of a Lender’s obligations hereunder or the Loans to a level below that which a Lender (or its parent)
could have achieved but for such adoption, change, request or directive by an amount reasonably deemed by it to be material, then the
Borrower shall pay to such Lender on demand such additional amount or amounts as will compensate such Lender (or its parent) for such
reduction.
(c) Notification
by Lender. Each Lender promptly will notify the Borrower of any event of which it has knowledge, occurring after the date
hereofClosing Date (or, with respect to any Lender, such later date on which
such Lender becomes a party to this Agreement), which will entitle such Lender to compensation pursuant to this Section 5.01.
Before giving any such notice pursuant to this Section 5.01(c) such Lender shall designate a different lending office
if such designation (x) will, in the reasonable judgment of such Lender, avoid the need for, or reduce the amount of, such compensation
and (y) will not, in the reasonable judgment of such Lender, be materially disadvantageous to such Lender. A certificate of such
Lender claiming compensation under this Section 5.01, setting forth the additional amount or amounts to be paid to it hereunder,
shall be conclusive and binding on the Borrower in the absence of manifest error.
(d) Notwithstanding
anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines
or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the
Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States
or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to constitute a change in Law for
all purposes of this Section 5.01, regardless of the date enacted, adopted or issued.
5.02 Illegality.
Notwithstanding any other provision of this Agreement, in the event that on or after the date hereofClosing
Date (or, with respect to any Lender, such later date on which such Lender becomes a party to this Agreement) the adoption
of or any change in any Law or in the interpretation or application thereof by any competent Governmental Authority shall make it unlawful
for a Lender or its lending office to make or maintain the Loans (and, in the opinion of such Lender, the designation of a different lending
office would either not avoid such unlawfulness or would be disadvantageous to such Lender), then such Lender shall promptly notify the
Borrower thereof, following which if such Law shall so mandate, the Loans shall be prepaid by the Borrower on or before such date as shall
be mandated by such Law in an amount equal to the Prepayment Price (notwithstanding anything herein to the contrary, without any Prepayment
Fee) applicable on such prepayment date in accordance with Section 3.03(a).
5.03 Taxes.
(a) Payments
Free of Taxes. Any and all payments by or on account of any Obligation shall be made without deduction or withholding for any Taxes,
except as required by any Law. If any Law (as determined in the good faith discretion of an applicable Withholding Agent) requires the
deduction or withholding of any Tax from any such payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled
to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority
in accordance with applicable Laws and, if such Tax is an Indemnified Tax, then the sum payable by such Obligor shall be increased as
necessary so that after such deduction or withholding has been made (including such deductions and withholdings applicable to additional
sums payable under this Section 5) the applicable Recipient receives an amount equal to the sum it would have received had
no such deduction or withholding been made.
(b) Payment
of Other Taxes by the Obligors. The Obligors shall timely pay to the relevant Governmental Authority in accordance with applicable
Laws, or at the option of the Administrative Agent or each Lender, timely reimburse it for the payment of any Other Taxes.
(c) Evidence
of Payments. As soon as practicable after any payment of Taxes by an Obligor to a Governmental Authority pursuant to this Section 5,
such Obligor shall deliver to the Administrative Agent the original, a certified copy of a receipt issued by such Governmental Authority
evidencing such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.
(d) Indemnification
by the Obligors. The Obligors shall reimburse and indemnify each Recipient, within ten (10) days after demand therefor, for the
full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this
Section 5) payable or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient and any
reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed
or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to the Obligors
by a Lender (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender shall
be conclusive absent manifest error.
(e) Indemnification
by the Lender. Each Lender shall severally indemnify the Administrative Agent, within ten (10) days after demand therefor, for
(i) any Indemnified Taxes attributable to such Lender (but only to the extent that the Obligors have not already indemnified the
Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Obligors to do so), and (ii) any Excluded
Taxes attributable to such Lender, in each case, that are payable or paid by the Administrative Agent in connection with any Loan Document,
and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or
asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by
the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off
and apply any and all amounts at any time owing to such Lender under any Loan Document or otherwise payable by the Administrative Agent
to the Lender from any other source against any amount due to the Administrative Agent under this Section 5.03(e).
(f) Status
of Lenders.
(i) Any
Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall
deliver to the Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower or the Administrative
Agent, such properly completed and executed documentation reasonably requested by the Borrower or the Administrative Agent as will permit
such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by
the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by Law as reasonably requested by the Borrower
as will enable the Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information
reporting requirements. Notwithstanding anything to the contrary in the preceding two (2) sentences, the completion, execution and
submission of such documentation (other than such documentation set forth in Section 5.03(f)(ii)(A), (ii)(B), and (ii)(D))
shall not be required if in such Lender’s reasonable judgment such completion, execution or submission would subject such Lender
to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
(ii) Without
limiting the generality of the foregoing, in the event that the Borrower is a U.S. Person:
(A) any
Lender that is a U.S. Person shall deliver to the Borrower and the Administrative Agent on or prior to the date on which such Lender becomes
a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent),
executed copies of IRS Form W-9 (or successor form) certifying that such Lender is exempt from U.S. federal backup withholding tax;
(B) any
Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number
of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement
(and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), whichever of the following
is applicable:
(1) in
the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect
to payments of interest under any Loan Document, executed copies of IRS Form W-8BEN or IRS Form W-8BEN-E as applicable (or successor
forms) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of
such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN or IRS Form W-8BEN-E
as applicable (or successor forms) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business
profits” or “other income” article of such tax treaty;
(2) executed
copies of IRS Form W-8ECI (or successor form);
(3) in
the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code,
(x) a certificate substantially in the form of Exhibit D-1 to the effect that such Foreign Lender is not a “bank”
within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Borrower within the meaning
of Section 871(h)(3)(B) of the Code, or a “controlled foreign corporation” related to the Borrower as described
in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and (y) executed copies
of IRS Form W-8BEN or IRS Form W-8BEN-E as applicable (or successor forms); or
(4) to
the extent a Foreign Lender is not the beneficial owner, executed copies of IRS Form W-8IMY (or successor form), accompanied by IRS
Form W-8ECI (or successor form), IRS Form W-8BEN or IRS Form W-8BEN-E (or successor form), a U.S. Tax Compliance Certificate,
substantially in the form of Exhibit D-2 or D-3, IRS Form W-9 (or successor form), and/or other certification
documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct
or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax
Compliance Certificate substantially in the form of Exhibit D-4 on behalf of each such direct and indirect partner.
(C) any
Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number
of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement
(and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed copies of any other
form prescribed by applicable Laws as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed,
together with such supplementary documentation as may be prescribed by applicable Laws to permit the Borrower or the Administrative Agent
to determine the withholding or deduction required to be made; and
(D) if
a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were
to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of
the Code, as applicable), such Lender shall deliver to the Borrower and the Administrative Agent at the time or times prescribed by law
and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation prescribed by applicable
Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested
by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations
under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount,
if any, to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any
amendments made to FATCA after the date of this Agreement.
Each Lender agrees that if any form or certification
it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly
notify the Borrower and the Administrative Agent in writing of its legal inability to do so.
(g) Treatment
of Certain Tax Benefits. If any party to this Agreement determines, in its sole discretion exercised in good faith, that it has received
a refund of any Taxes as to which it has been indemnified pursuant to this Section 5 (including by the payment of additional
amounts pursuant to this Section 5), it shall pay to the indemnifying party an amount equal to such refund (but only to the
extent of indemnity payments made under this Section 5 with respect to the Taxes giving rise to such refund), net of all out-of-pocket
expenses (including Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority
with respect to such refund). Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party
the amount paid over pursuant to this Section 5.03(8) (plus any penalties, interest or other charges imposed by the relevant
Governmental Authority) in the event that such indemnified party is required to repay such refund to such Governmental Authority. Notwithstanding
anything to the contrary in this Section 5.03(8), in no event will the indemnified party be required to pay any amount to
an indemnifying party pursuant to this Section 5.03(g) the payment of which would place the indemnified party in a less
favorable net after-Tax position than the indemnified party would have been in if the Tax subject to indemnification and giving rise to
such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to
such Tax had never been paid. This Section 5.03(g) shall not be construed to require any indemnified party to make available
its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person.
(h) Each
party hereto hereby acknowledges and agrees that the Tranche A-1 Term Loans are part of an
investment unit within the meaning of Section 1273(c)(2) of the Code, which includes the Company WarrantWarrants
issued on the Closing Date. For federal income tax purposes, pursuant to Treasury Regulations § 1.1273-2(h), the Borrower,
the Administrative Agent and the Lenders acknowledge that the “issue price” of the Tranche A-1
Term Loans is 98% of the stated principal amount of the Tranche A-1 Term Loans minus the Final
Valuation of the Company Warrant (as that term is defined in Section 16 of the Company
Warrant) of the Company Warrants issued on the Closing Date. Each of the Borrower, the Administrative
Agent and the Lenders agree (i) to use the foregoing issue price and Final Valuation for U.S. federal income tax purposes with respect
to the transactions contemplated hereby, and (ii) to prepare and file all Tax returns in a manner consistent with such allocation,
and shall not to take any position that is inconsistent with the provision of this Section 5.03(h) on any Tax return
or in any audit (unless otherwise required by a final determination by the IRS or a court of competent jurisdiction).
5.05 Mitigation
Obligations. If the Borrower is required to pay any Indemnified Taxes or additional amounts to
any Lender or to any Governmental Authority for the account of any Lender pursuant to Section 5.01 or Section 5.03,
then such Lender shall (at the request of the Borrower) use commercially reasonable efforts to designate a different lending office for
funding or booking its Loans hereunder or to assign and delegate its rights and obligations hereunder to another of its offices, branches
or Affiliates if, in the sole reasonable judgment of such Lender, such designation or assignment and delegation would (i) eliminate
or reduce amounts payable pursuant to Section 5.01 or Section 5.03, as the case may be, in the future, (ii) not
subject such Lender to any unreimbursed cost or expense and (iii) not otherwise be disadvantageous to such Lender. The Borrower hereby
agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment and delegation.
5.06 Inability
to Determine Rates.
(a) Replacement
of Relevant Rate or Successor Rate. Notwithstanding anything to the contrary in this Agreement or any other Loan Documents, if the Administrative
Agent determines (which determination shall be conclusive absent manifest error), or the Borrower or Majority Lenders notify the Administrative
Agent (with, in the case of the Majority Lenders, a copy to the Borrower) that the Borrower or Majority Lenders (as applicable) have determined,
that:
(i) adequate
and reasonable means do not exist for ascertaining three month interest periods of Term SOFR, including, without limitation because the
Term SOFR Screen Rate is not available or published on a current basis and such circumstances are unlikely to be; or
(ii) CME
or any successor administrator of the Term SOFR Screen Rate or a Governmental Authority having jurisdiction over the Administrative Agent
or such administrator with respect to its publication of Term SOFR, in each case acting in such capacity has made a public statement identifying
a specific date after which three month interest periods of Term SOFR or the Term SOFR Screen Rate shall or will no longer be representative
or made available, or permitted to be used for determining the interest rate of U.S. dollar denominated syndicated loans or shall or will
otherwise cease, provided that, at the time of such statement, there is no successor administrator that is satisfactory to the Administrative
Agent that will continue to provide such interest periods of Term SOFR after such specific date (the latest date on which such interest
periods of Term SOFR or the Term SOFR Screen Rate are no longer representative or available permanently or indefinitely, the “Scheduled
Unavailability Date”); or
(iii) syndicated
loans currently being executed and agented in the U.S. are being executed or amended (as applicable) to incorporate or adopt a new benchmark
interest rate to replace the Interest Rate;
then,
(A) in
the case of events or circumstances of the type described in Section 5.05(a)(i), (ii) or (iii) affecting
Term SOFR, on a date and time determined by the Administrative Agent (any such date, the “Term SOFR Replacement Date”),
which date shall be at the end of an Interest Period or on the relevant interest payment date, as applicable, for interest calculated
and, solely with respect to clause (ii) above, no later than the Scheduled Unavailability Date, Term SOFR will be replaced
hereunder and under any Loan Document with Daily Simple SOFR, in each case, without any amendment to, or further action or consent of
any other party to, this Agreement or any other Loan Document, and all interest payments on Loans with a Successor Rate of Daily Simple
SOFR will be payable on the next Payment Date; or
(B) (x) if
the Administrative Agent determines that Daily Simple SOFR is not available on or prior to the Term SOFR Replacement Date, or (y) if
the events or circumstances of the type described in Section 5.05(a)(i), (ii) or (iii) affecting any
Successor Rate are then in effect, then, the Administrative Agent and the Borrower may amend this Agreement solely for the purpose of
replacing the Interest Rate or any then current Successor Rate in accordance with this Section 5.05 with an alternative benchmark
rate giving due consideration to any evolving or then existing convention for similar credit facilities syndicated and agented in the
U.S. and denominated in Dollars for such alternative benchmarks, and, in each case, including any mathematical or other adjustments to
such benchmark giving due consideration to any evolving or then existing convention for similar credit facilities syndicated and agented
in the U.S. and denominated in Dollars for such benchmarks, which adjustment or method for calculating such adjustment shall be published
on an information service as selected by the Administrative Agent from time to time in its reasonable discretion and may be periodically
updated (and any such proposed rate, including for the avoidance of doubt, any adjustment thereto, a “Successor Rate”),
and any such amendment shall become effective at 5:00 p.m. on the fifth Business Day after the Administrative Agent shall have posted
such proposed amendment to all Lenders and the Borrower unless, prior to such time, Lenders comprising the Majority Lenders have delivered
to the Administrative Agent written notice that such Majority Lenders object to such amendment.
(b) The
Administrative Agent will promptly (in one or more notices) notify the Borrower and each Lender of the implementation of any Successor
Rate.
(c) Any
Successor Rate shall be applied in a manner consistent with market practice; provided that to the extent such market practice is not administratively
feasible for the Administrative Agent, such Successor Rate shall be applied in a manner as otherwise reasonably determined by the Administrative
Agent (in consultation with the Borrower).
(d) Notwithstanding
anything else herein, if at any time any Successor Rate as so determined would otherwise be less than zero, the Successor Rate will be
deemed to be zero for the purposes of this Agreement and the other Loan Documents.
(e) In
connection with the implementation of a Successor Rate, the Administrative Agent will have the right to make Conforming Changes from time
to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Conforming
Changes will become effective without any further action or consent of any other party to this Agreement; provided that, with respect
to any such amendment effected, the Administrative Agent shall post each such amendment implementing such Conforming Changes to the Borrower
and the Lenders reasonably promptly after such amendment becomes effective.
5.055.07 Survival.
Each party’s obligations under this Section 5 shall survive the resignation or replacement of the Administrative Agent
or any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or
discharge of all Obligations under any Loan Document.
SECTION 6.
CONDITIONS
6.01 Conditions
to Closing. The effectiveness of this Agreement shall be subject to the satisfaction (or waiver
by the Lenders in accordance with Section 14.04) of each of the conditions precedent set forth below in this Section 6.01.
(a) Loan
Documents. The Administrative Agent shall have received each Loan Document required to be executed by the appropriate Obligor on the
Closing Date and delivered by each applicable Obligor in such number as reasonably requested by the Administrative Agent (which may be
delivered by facsimile or other electronic means for the purposes of satisfying this clause (a) on the Closing Date) and such Loan
Documents shall be in form and substance satisfactory to the Administrative Agent and the Lenders and their respective counsels.
(b) Secretary’s
Certificate, Etc. The Administrative Agent shall have received from each Obligor (x) a copy of a good standing certificate, dated
a date reasonably close to the Closing Date, for each such Person and (y) a certificate, dated as of the Closing Date, duly executed
and delivered by such Person’s Responsible Officer, as to:
(i) resolutions
of each such Person’s Board then in full force and effect authorizing the execution, delivery and performance of each Loan Document
to be executed by such Person and the Transactions;
(ii) the
incumbency and signatures of Responsible Officers authorized to execute and deliver each Loan Document to be executed by such Person;
and
(iii) the
full force and validity of each Organic Document of such Person and copies thereof;
upon which certificates shall be in form and substance
reasonably satisfactory to the Administrative Agent and upon which the Administrative Agent and the Lenders may conclusively rely until
they shall have received a further certificate of the Responsible Officer of any such Person cancelling or amending the prior certificate
of such Person.
(c) Information
Certificate. The Administrative Agent shall have received a fully completed Information Certificate in form and substance reasonably
satisfactory to the Administrative Agent, dated as of the Closing Date, duly executed and delivered by a Responsible Officer of the Borrower.
All documents and agreements required to be appended to the Information Certificate, shall be in form and substance reasonably satisfactory
to the Administrative Agent, shall have been executed and delivered by the requisite parties and shall be in full force and effect.
(d) Financial
Information, Etc. The Administrative Agent shall have received, or such information shall be publicly available on “EDGAR”,
audited consolidated financial statements of the Borrower and its Subsidiaries for the fiscal year ended December 31, 2021.
(e) Solvency.
The Administrative Agent shall have received a solvency certificate, substantially in the form of Exhibit K, duly executed
and delivered by the chief financial officer of the Borrower, dated as of the Closing Date, in form and substance reasonably satisfactory
to the Administrative Agent.
(f) Security
Documents. The Administrative Agent shall have received executed counterparts of a Security Agreement, in form and substance reasonably
acceptable to the Administrative Agent, dated as of the Closing Date, duly executed and delivered by each Obligor, together with all documents
(including share certificates, transfers and stock transfer forms, notices or any other instruments) required to be delivered or filed
under the Security Documents and evidence satisfactory to it that arrangements have been made with respect to all registrations, notices
or actions required under the Security Documents to be effected, given or made in order to establish a valid and perfected first priority
(subject to Permitted Priority Liens) security interest in the Collateral in accordance with the terms of the Security Documents, including:
(i) delivery
of all certificates (in the case of Equity Interests that are certificated securities (as defined in the UCC)) evidencing the issued and
outstanding capital securities owned by each Obligor that are required to be pledged and so delivered under the Security Agreement, which
certificates in each case shall be accompanied by undated instruments of transfer duly executed in blank, or, in the case of Equity Interests
that are uncertificated securities (as defined in the UCC), confirmation and evidence reasonably satisfactory to the Administrative Agent
and the Lenders that the security interest required to be pledged therein under the Security Agreement has been transferred to and perfected
by the Administrative Agent and the Lenders in accordance with Articles 8 and 9 of the NY UCC and all laws otherwise applicable to the
perfection of the pledge of such Equity Interests;
(ii) financing
statements naming each Obligor as a debtor and the Administrative Agent as the secured party, or other similar instruments or documents,
in each case suitable for filing, filed under the UCC (or equivalent law) of all jurisdictions as may be necessary or, in the opinion
of the Administrative Agent, desirable to perfect the Liens of the Secured Parties pursuant to the Security Agreement;
(iii) UCC-3
termination statements, if any, necessary to release all Liens and other rights of any Person in any collateral described in the Security
Agreement previously granted by any Person; and
(iv) all
applicable Short-Form IP Agreements required to be provided under the Security Agreement, each dated as of the Closing Date, duly
executed and delivered by each applicable Obligor.
(g) Lien
Searches. The Administrative Agent shall be satisfied with Lien searches regarding the Borrower made as of a date reasonably close
to the Closing Date.
(h) Warrants.
The Lenders shall have received executed counterparts of the Company WarrantWarrants
and the Registration Rights Agreement.
(i) Opinion
of Counsel. The Administrative Agent shall have received a duly executed legal opinion of counsel to the Obligors dated as of the
Closing Date, in form and substance reasonably acceptable to the Administrative Agent.
(j) Fee
Letter. The Administrative Agent shall have received an executed counterpart of the Fee Letter, duly executed and delivered by the
Borrower.
(k) Closing
Fees, Expenses, Etc. Each of the Administrative Agent and each Lender shall have received for its own account, (i) the upfront
fee as set forth in the Fee Letter, which shall be paid by way of the Administrative Agent retaining such amount from the proceeds of
the Loan and (ii) all fees, costs and expenses due and payable to it pursuant to the Fee Letter and Section 14.03, including
all reasonable closing costs and fees and all unpaid reasonable expenses of the Administrative Agent and the Lenders incurred in connection
with the Transactions (including the Administrative Agent’s and the Lenders’ legal fees and expenses), subject to the cap
set forth in Section 14.03(a), to the extent invoiced (or as to which a good faith estimate has been provided to the Borrower)
at least two (2) Business Days prior to the Closing Date.
(l) Material
Adverse Change. Since December 31, 2021, no Material Adverse Change shall have occurred, both before and after giving effect
to the Loans to be made on the Closing Date.
(m) Know
Your Customer. The Administrative Agent shall have received, as applicable, all documentation and other information required by bank
regulatory authorities under applicable “know your customer” and Anti-Terrorism Laws.
(n) No
Default. No event shall have occurred or be continuing that would constitute a Default or Event of Default.
(o) Representations
and Warranties. The representations and warranties contained in this Agreement and in the other Loan Documents delivered pursuant
to Section 6.01(a) shall be true and correct in all material respects (unless such representations are already qualified
by reference to materiality, Material Adverse Effect or similar language, in which case such representations and warranties shall be true
and correct in all respects) on and as of the Closing Date, except to the extent such representations and warranties specifically relate
to an earlier date, in which case such representations and warranties shall have been true and correct in all respects on and as of such
earlier date.
(p) Beneficial
Ownership Certificate. To the extent requested by any Lender or the Administrative Agent, the Borrower shall have provided to such
Lender and the Administrative Agent all documentation and other information so requested, including a duly executed W-9 of the Borrower
(or such other applicable tax form), in connection with applicable “know your customer” and anti-money laundering rules and
regulations, including the Patriot Act, and if the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership
Regulation, a Beneficial Ownership Certification, in each case prior to the Closing Date.
6.02 Conditions
to the Borrowing of All Loans. The obligation of each Lender to make each tranche of Loans shall
be subject to the delivery of a Borrowing Notice as required pursuant to Section 2.02, and the prior or concurrent satisfaction (or
waiver by the Lenders in accordance with Section 14.04) of each of the conditions precedent set forth below in this Section 6.02:
(a) Closing
Date. The Closing Date shall have occurred and the conditions set forth in Section 6.01 shall have been satisfied.
(b) Applicable
Funding Date Certificate. The Administrative Agent shall have received a Funding Date Certificate dated as of the Applicable Funding
Date, duly executed and delivered by a Responsible Officer of the Borrower.
(c) Delivery
of Notes. The Administrative Agent shall have received a Note to the extent requested by any Lender pursuant to Section 2.04
for the Loans made on such Applicable Funding Date duly executed and delivered by a Responsible Officer of the Borrower.
(d) Solvency.
The Administrative Agent shall have received a solvency certificate, substantially in the form of Exhibit K, duly executed
and delivered by the chief accounting officer of the Borrower, dated as of the Applicable Funding Date, in form and substance reasonably
satisfactory to the Administrative Agent.
(e) Fees,
Expenses, Etc. Each of the Administrative Agent and each Lender shall have received for its own account all Ticking Fees and other
fees, costs and expenses due and payable to it on or prior to the Applicable Funding Date pursuant to the Fee Letter, Section 2.06
and Section 14.03, including all reasonable closing costs and fees and all unpaid reasonable expenses of the Administrative
Agent and the Lenders incurred in connection with the Transactions (including the Administrative Agent’s and the Lenders’
legal fees and expenses) in each case, to the extent invoiced (or as to which a good faith estimate has been provided to the Borrower)
at least two (2) Business Days prior to the Applicable Funding Date.
(f) No
Default. No event shall have occurred or be continuing or would result from the making of the Loans on the Applicable Funding Date
that would constitute a Default or Event of Default.
(g) Representations
and Warranties. The representations and warranties contained in this Agreement and in the other Loan Documents delivered pursuant
to Section 6.01(a) shall be true and correct in all material respects (unless such representations are already qualified
by reference to materiality, Material Adverse Effect or similar language, in which case such representations and warranties shall be true
and correct in all respects) on and as of the Applicable Funding Date, except to the extent such representations and warranties specifically
relate to an earlier date, in which case such representations and warranties shall have been true and correct in all respects on and as
of such earlier date.
(h) 701
Warrant. The Lenders shall have received executed counterparts of (i) in the case of the Tranche A-1
Term Loans, 701 Warrants in an aggregate amount equal to 0.875% of the Fully-Diluted Capitalization (as defined therein) of OnkosXcel
Therapeutics, LLC, (ii) in the case of the Tranche B Term Loans, 701 Warrants in an aggregate amount equal to 0.4375% of the Fully-Diluted
Capitalization (as defined therein) of OnkosXcel Therapeutics, LLC and (iii) in the case of the Tranche C Term Loans, 701 Warrants
in an aggregate amount equal to 0.4375% of the Fully-Diluted Capitalization (as defined therein) of OnkosXcel Therapeutics, LLC.
(i) Contribution.
BXCL 701 Asset Contribution. The Borrower shall have completed the BXCL 701 Asset Contribution.
(j) Agreements.
(i) The
Borrower shall have entered into an amendment to the Shared Services Agreement with BioXcel LLC pursuant to which the Collaboration Agreement
Option shall be extended through at least December 31, 2024;
(ii) The
Borrower and BioXcel LLC shall have entered into an agreement, in form and substance reasonably acceptable to the Administrative Agent,
licensing BioXcel LLC’s rights, title and interest in the BIOXCEL trademark to the Borrower; provided, that, such license
shall (x) be (A), during the Initial Period, exclusive (including as to BioXcel LLC) within the field of neuroscience, (B) irrevocable
(except as set forth in the termination provisions thereof), (C) freely sublicensable during the Initial Period within the scope
of the license, (D) royalty-free, and (E) freely transferable during the Initial Period to any Affiliates of the Borrower, and
to any Person who becomes the owner of the portion of Borrower’s business with which the BIOXCEL trademark has been associated (or
in connection with such Person’s acquisition of such portion of such business) following the occurrence and during the continuance
of an Event of Default, (y) provide that during the Initial Period BioXcel LLC shall not, and shall cause its controlled Affiliates
not to, (A) license or grant other permissions to use the BIOXCEL trademark to any other entity other than its or their Affiliates
or (B) use the BIOXCEL trademark in the field of neuroscience, and (z) provide Borrower with sufficient rights to bring, take,
control and conduct any enforcement action to halt any infringement, dilution, or other conflicting use of the BIOXCEL trademark in the
field of neuroscience, (such agreement, the “BioXcel Trademark Agreement”); and
(k) Applicable
Funding Condition. The Applicable Funding Condition shall have been satisfied in form and substance reasonably satisfactory to the
Administrative Agent and the Oaktree Lender.
(l) Applicable
Availability Period. The Loans shall be borrowed on or prior to the last day of the Applicable Availability Period.
SECTION 7.
REPRESENTATIONS AND WARRANTIES
The Borrower and each other
Obligor hereby jointly and severally represents and warrants to the Administrative Agent and each Lender on the Closing Date,
on the Second Amendment Effective Date and each date on which a Loan is advanced pursuant to Section 2.01, and
any other date such representation and warranty is required to be made under the Loan Documents, as set forth below:
7.01 Power
and Authority. Each Obligor and each of its Subsidiaries (i) is duly organized and validly
existing under the laws of its jurisdiction of organization, (ii) has all requisite corporate or other power, and has all Governmental
Approvals necessary to own its assets and carry on its business as now being or as proposed to be conducted, except to the extent that
failure to have the same would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect, (iii) is
qualified to do business and is in good standing in all jurisdictions in which the nature of the business conducted by it makes such qualification
necessary except where failure so to qualify would not, individually or in the aggregate, reasonably be expected to result in a Material
Adverse Effect, and (iv) has full power, authority and legal right to enter into and perform its obligations under each of the Loan
Documents to which it is a party and, in the case of the Borrower, to borrow the Loans hereunder.
7.02 Authorization;
Enforceability. Each Transaction to which an Obligor is a party (or to which it or any of its
assets or properties is subject) is within such Obligor’s corporate or other organizational powers and has been duly authorized
by all necessary corporate or other organizational action including, if required, approval by all necessary holders of Equity Interests.
This Agreement has been duly executed and delivered by each Obligor and constitutes, and each of the other Loan Documents to which it
is a party when executed and delivered by such Obligor will constitute, a legal, valid and binding obligation of such Obligor, enforceable
against such Obligor in accordance with its 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).
7.03 Governmental
and Other Approvals; No Conflicts. None of the execution, delivery and performance by each Obligor
of the Loan Documents to which it is a party or the consummation by each Obligor of the Transactions (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 Documents, (ii) will violate (1) any Law, (2) any Organic Document of any Obligor
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, would reasonably be expected to result in a Material Adverse Effect, (iii) will violate
or result in a default under any Material Agreement binding upon any Obligor or any of its Subsidiaries that, individually or in the aggregate,
would reasonably be expected to result in a Material Adverse Effect or (iv) will result in the creation or imposition of any Lien
(other than Permitted Liens) on any asset of any Obligor or any of its Subsidiaries.
7.04 Financial
Statements; Material Adverse Change.
(a) Financial
Statements. The Borrower has heretofore furnished to the Administrative Agent (who shall forward to the Lenders) consolidated financial
statements required to be delivered pursuant to this Agreement. Such financial statements present fairly, in all material respects, the
consolidated financial position and results of operations and cash flows of the Borrower and its Subsidiaries as of such dates and for
such periods in accordance with GAAP, subject to year-end audit adjustments and the absence of footnotes in the case of the statements
of the type described in Section 8.01(a).
(b) No
Material Adverse Change. Since December 31, 2021, there has been no Material Adverse Change; provided, that for purposes
of this Section 7.04(b), the impacts of the COVID-19 pandemic on the business, operations or financial condition of the Borrower
and its Subsidiaries that (x) occurred prior to the Closing Date and (y) were disclosed in public filings made with the SEC
or in writing to the Administrative Agent and the Lenders, in each case prior to the Closing Date, shall be disregarded.
7.05 Properties.
(a) Property
Generally. Each Obligor and each of its Subsidiaries has good and marketable fee simple title to, or valid leasehold interests in,
all its real and personal property material to its business, including all properties and assets, whether tangible or intangible, relating
to its Products or Product Commercialization and Development Activities and all Material Intellectual Property, subject only to Permitted
Liens and except for minor defects in title that (i) do not interfere with its ability to conduct its business as currently conducted
or to utilize such properties for their intended purposes and (ii) would not reasonably be expected to prevent or interfere with
the ability of any Obligor or any of its Subsidiaries to conduct any Product Commercialization and Development Activities with respect
to any of its Products in any material respect.
(b) Intellectual
Property.
(i) The
Obligors are the sole and exclusive legal and beneficial (and to the extent applicable, record) owners of all right, title and interest
in and to all Material Intellectual Property and all other Intellectual Property that is, in each case, owned or purported to be owned
by the Obligors, free and clear of any Liens or Claims other than Permitted Liens. The Obligors own or have sufficient and valid, written
rights to use all Material Intellectual Property. The Collateral includes all Material Intellectual Property owned by the Obligors except
for the Intellectual Property included within the BXCL 701 Assets. Without limiting the foregoing, and except as set forth in Schedule
7.05(b)(i):
(A) other
than (1) customary restrictions in in-bound licenses of Intellectual Property and non-disclosure Contracts, or (2) as would
have been or is permitted by Section 9.09, there are no judgments, covenants not to sue, grants, Liens (other than Permitted
Liens), or other Claims, agreements or arrangements relating to any Material Intellectual Property, which materially restrict any Obligor
or any of its Subsidiaries with respect to its use, enforcement, or other exploitation of any Material Intellectual Property;
(B) the
operation and conduct of the business of the Borrower or any of its Subsidiaries, including their use of their respective Material Intellectual
Property, does not violate, infringe or constitute a misappropriation of Intellectual Property rights of any other Person, except as would
not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect;
(C) (1) there
are no pending Claims, or Claims threatened in writing, against any Obligor or any of their Subsidiaries asserted by any other Person
relating to Intellectual Property, including any material Claims alleging ownership, invalidity or unenforceability of any Material Intellectual
Property, or infringement, misappropriation, or violation of such Person’s Intellectual Property rights in any material respect;
and (2) neither any Obligor nor any of their Subsidiaries has received any notice from, or Claim by, any Person that the operation
and conduct of the businesses of the Borrower or any of its Subsidiaries (including their use of Material Intellectual Property), infringes
upon, violates or constitutes a misappropriation of, any Intellectual Property of any other Person in each case of clause (1) and
(2), that would reasonably be expected to result in material liability to any Obligor or any of their Subsidiaries;
(D) to
the knowledge of any Borrower and their Subsidiaries, no Material Intellectual Property is being infringed, violated, or misappropriated
by any other Person in any material respect; and neither such Obligor nor any of its Subsidiaries has put any other Person on notice of
such actual or potential infringement, violation or misappropriation of any such Material Intellectual Property, and neither any Obligor
nor any of their Subsidiaries has initiated any Claim with respect to any such Material Intellectual Property;
(E) all
current and former employees and contractors that have developed Material Intellectual Property for or on behalf of any Obligor or any
of their Subsidiaries have executed written confidentiality and invention assignment Contracts with such Obligor or Subsidiary, as applicable,
that irrevocably and presently assign to such Obligor or Subsidiary, as applicable, all rights of such employees and contractors to any
such Material Intellectual Property; and
(F) each
Obligor and each of its Subsidiaries has taken reasonable precautions to protect the secrecy, confidentiality and value of its Material
Intellectual Property consisting of Trade Secrets, and no such Trade Secret constituting Material Intellectual Property has been used
or discovered by, or disclosed to, any Person except pursuant to written, valid and enforceable non-disclosure agreements protecting the
confidentiality thereof, which agreements, to the knowledge of each Obligor and their Subsidiaries, have not been breached in any material
respect.
(G) except
as would not, individually or in the aggregate, be reasonably expected to be material to the Borrower or any of its Subsidiaries or to
the value of any of their material software constituting Collateral (“Material Software”), neither the Borrower
nor any of its Subsidiaries has embedded, used, linked to, distributed or made available any open source or copyleft source code, in each
case in a manner that requires (i) any such Material Software owned or purported to be owed by the Borrower or any of its Subsidiaries
(other than the open source software itself) be disclosed or distributed in source code form or be licensed for the purpose of making
derivative works; (ii) any restriction on the consideration to be charged for the distribution of such Material Software; or (iii) the
grant to any third Person of any rights or immunities under such software.
(ii) With
respect to Material Intellectual Property consisting of Patents, except as set forth in Schedule 7.05(b)(ii), and without limiting
the representations and warranties in Section 7.05(b)(i):
(A) each
of the issued claims in such Patents is valid and enforceable;
(B) subsequent
to the issuance of such Patents, no Obligor nor any of its Subsidiaries or predecessors-in-interest, has filed any disclaimer or made
or permitted any other voluntary reduction in the scope of the Inventions claimed in such Patents;
(C) to
the knowledge of any Obligor, no allowable or allowed subject matter of such Patents is subject to any competing conception claims of
allowable or allowed subject matter of any patent applications or patents of any third party and have not been the subject of any interference,
and are not and have not been the subject of any re-examination, opposition or any other post-grant proceedings, nor is any Obligor or
its Subsidiaries aware of any basis for any such interference, re-examination, opposition, inter partes review, post grant review,
or any other post-grant proceedings; and
(D) no
such Patents have ever been finally adjudicated to be invalid, unpatentable or unenforceable for any reason in any administrative, arbitration,
judicial or other proceeding, and, with the exception of publicly available documents with respect to any such Material Intellectual Property,
no Obligor nor any of its Subsidiaries has received any written notice asserting that such Patents are invalid, unpatentable or unenforceable.
(iii) All
maintenance fees, registration fees, renewal fees, annuities, and the like due or payable on or with respect to any Material Intellectual
Property consisting of Patents or Trademarks owned, not licensed, by Borrower have been timely paid or the failure to so pay would not
reasonably be expected to result in a Material Adverse Change; provided, that Administrative Agent and the Lenders hereby acknowledge
that Borrower is not responsible for the maintenance of trademark filings owned by BioXcel LLC or other parties.
7.06 No
Actions or Proceedings.
(a) Litigation.
There is no litigation, investigation or proceeding pending or, to the knowledge of any Obligor or any of its Subsidiaries threatened
in writing, with respect to such Obligor or any such Subsidiaries by or before any Governmental Authority or arbitrator that, (i) if
adversely determined, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect or (ii) involves
this Agreement or any other Loan Document.
(b) Environmental
Matters. No Obligor nor any of its Subsidiaries (i) has failed to comply with any Environmental Law or to obtain, maintain or
comply with any permit, license or other approval required under any Environmental Law, except for any such failure to comply with such
Environmental Law or failure to obtain, maintain or comply with a permit that would not reasonably be expected to have a Material Adverse
Effect, (ii) has become subject to any Environmental Liability that would reasonably be expected to have a Material Adverse Effect,
(iii) except as disclosed on Schedule 7.06(b), has received any Environmental Claim, or has knowledge that any is threatened,
(iv) has entered into any agreement in which such Obligor or any Subsidiary has assumed or undertaken material responsibility or
obligations of any other person with respect to any Environmental Liability or (v) has knowledge of any basis for any other material
Environmental Liability.
(c) Labor
Matters. No Obligor or any of its Subsidiaries has engaged in unfair labor practices as defined in 29 U.S.C. § §152(8) and
158 of the National Labor Relations Act and there are no pending or threatened in writing labor actions, disputes, grievances, arbitration
proceedings, or similar Claims or actions involving the employees of any Obligor or any of its Subsidiaries, in each case that would reasonably
be expected to have a Material Adverse Effect. There are no strike or work stoppages in existence or threatened in writing against
any Obligor and to the knowledge of such Obligor, no union organizing activity is taking place. There are no collective bargaining agreements
covering employees of any Obligor or any of its Subsidiaries.
7.07 Compliance
with Laws and Agreements.
(a) Each
Obligor is in compliance with all Laws binding on it and all Contracts binding upon it or its property, except, in each case, where the
failure to do so would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect. No Default
has occurred and is continuing. The Obligors and their Subsidiaries are, and all Product Commercialization and Development Activities
of such Persons are being conducted, in material compliance with all applicable Healthcare Laws.
(b) To
the knowledge of the Obligors and their respective Subsidiaries, any physician, other licensed healthcare professional, or any other Person
who is in a position to refer patients or other business to the Borrower, any other Obligor or any Subsidiaries (collectively, a “Referral
Source”) who has a direct ownership, investment, or financial interest in the Borrower, any other Obligor or any such Subsidiary
paid fair market value for such ownership, investment or financial interest; any ownership or investment returns distributed to any Referral
Source is in proportion to such Referral Source’s ownership, investment or financial interest; and no preferential treatment or
more favorable terms were or are offered to such Referral Source compared to investors or owners who are not in a position to refer patients
or other business. No Obligor, nor any of its Subsidiaries, directly or indirectly, has or will guarantee a loan, make a payment toward
a loan or otherwise subsidize a loan for any Referral Source including any loans related to financing the Referral Source’s ownership,
investment or financial interest in the Borrower, any other Obligor or any such Subsidiary.
(c) Without
limiting the generality of the foregoing:
(i) To
the knowledge of the Obligors and their respective Subsidiaries (after due inquiry), on the one hand, and any Referral Source, on the
other hand (a) comply, in all material respects, with all applicable Healthcare Laws including the Federal Anti-Kickback Statute,
the Stark Law and other applicable anti-kickback and self-referral laws, whether U.S. or non-U.S.; (b) reflect fair market value,
have commercially reasonable terms, and were negotiated at arm’s length; and (c) do not obligate the Referral Source to purchase,
use, recommend or arrange for the use of any products or services of any Obligor or any of its Subsidiaries; and
(ii) each
Obligor and each of its Subsidiaries have implemented policies and procedures to monitor, collect, and report any payments or transfers
of value to certain healthcare providers and teaching hospitals, in accordance, in all material respects, with industry standards and
the Affordable Care Act of 2010 and the Physician Payments Sunshine Act and their implementing regulations and state disclosure and transparency
laws.
7.08 Taxes.
Except as set forth on Schedule 7.08, each Obligor and 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 such Obligor 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 a Material Adverse Effect.
7.09 Full
Disclosure. None of the reports, financial statements, certificates or other written information
concerning the Obligors and their Subsidiaries furnished by or on behalf of the Obligors or any of their Subsidiaries to the Administrative
Agent (on behalf of itself and the Lenders) in connection with the negotiation of this Agreement and the other Loan Documents or delivered
hereunder or thereunder (as modified or supplemented by other information so furnished, including the Borrower’s filings publicly
available on “EDGAR”) contains 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 misleading; provided that, with
respect to projected financial information, the Borrower represents only that such information was prepared in good faith based upon assumptions
believed to be reasonable at the time, and it being understood that such projected financial information and all other forward looking
information are not to be viewed as facts and that actual results during the period or periods covered thereby may differ from such projected
results and that the differences may be material.
7.10 Investment
Company Act and Margin Stock Regulation.
(a) Investment
Company Act. No Obligor is an “investment company” as defined in, or subject to regulation under, the Investment Company
Act of 1940, as amended.
(b) Margin
Stock. No Obligor is engaged principally, or as one of its important activities, in the business of extending credit for the purpose,
whether immediate, incidental or ultimate, of buying or carrying Margin Stock, and no part of the proceeds of the Loans will be used to
buy or carry any Margin Stock in violation of Regulation T, U or X.
7.11 Solvency.
The Obligors, on a consolidated basis, are and, immediately after giving effect to the making of the Loans, the use of proceeds thereof,
and the consummation of the Transactions, will be, Solvent.
7.12 Subsidiaries.
Set forth on Schedule 7.12 is a complete and correct list of all direct and indirect Subsidiaries of the Borrower. Each such Subsidiary
is duly organized and validly existing under the jurisdiction of its organization shown in said Schedule 7.12, and the percentage
ownership by each Obligor of each such Subsidiary thereof is as shown in said Schedule 7.12.
7.13 Indebtedness
and Liens. Set forth on Schedule 7.13(a) is a complete and correct list of all Indebtedness
of each Obligor and each of its Subsidiaries outstanding as of the Closing Date. Set forth on Schedule 7.13(b) is a complete
and correct list of all Liens granted by the Obligors and each of their respective Subsidiaries with respect to their respective property
and outstanding as of the Closing Date.
7.14 Material
Agreements. Except as set forth on Schedule 7.14, no Obligor or any of its Subsidiaries
is in material default under any Material Agreement, nor does any Obligor have knowledge of (i) any Claim against it or any of its
Subsidiaries for any material breach of any such Material Agreement or (ii) as of the Closing Date, any material default by any party
to any such Material Agreement.
7.15 Restrictive
Agreements. Except as set forth in Schedule 7.15, as of the Closing Date, no Obligor or
any of its Subsidiaries is subject to any Restrictive Agreement, except (i) those permitted under Section 9.11, (ii) restrictions
and conditions imposed by Law or by this Agreement, (iii) any stockholder agreement, charter, by-laws, or other organizational documents
of an Obligor or any of its Subsidiaries as in effect on the date hereofClosing
Date and (iv) limitations associated with Permitted Liens.
7.16 Real
Property. Schedule 7.16 correctly sets forth all real property that is owned or leased
by the Obligors, indicating in each case whether the respective property is owned or leased, the identity of the owner and lessee (if
applicable) and the location of the respective property. Except as set forth in Schedule 7.16, no Obligor owns or leases (as tenant
thereof) any real property as of the Closing Date.
7.17 Pension
Matters. Schedule 7.17 sets forth, as of the Closing 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 would 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 any Obligor 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
any Obligor or Subsidiary thereof incurs or otherwise has or could have an obligation or any liability or Claim and (z) no ERISA
Event is reasonably expected to occur. The Borrower and each of its ERISA Affiliates has met all applicable requirements under the ERISA
Funding Rules with respect to each Title IV Plan, and no waiver of the minimum funding standards under the ERISA Funding Rules has
been applied for or obtained. As of the most recent valuation date for any Title IV Plan, the funding target attainment percentage (as
defined in Section 430(d)(2) of the Code) is at least sixty percent (60%), and neither any Obligor nor any of its ERISA Affiliates
knows of any facts or circumstances that could reasonably be expected to cause the funding target attainment percentage to fall below
sixty percent (60%) as of the most recent valuation date. As of the Closing Date, no ERISA Event has occurred in connection with which
obligations and liabilities (contingent or otherwise) remain outstanding. No ERISA Affiliate would have any Withdrawal Liability as a
result of a complete withdrawal from any Multiemployer Plan on the date this representation is made.
7.18 Regulatory
Approvals.
(a) Each
Obligor and each of its Subsidiaries holds, and will continue to hold, either directly or through licensees and agents, all Product Authorizations
necessary or required for the Borrower and each of its Subsidiaries to conduct, in all material respects, their respective operations
and businesses in the manner currently conducted and to conduct its Product Commercialization and Development Activities.
(b) No
Obligor or its Subsidiaries has received any written notice from the FDA or any Governmental Authority that (i) it is considering
suspending, revoking or materially limiting any Product Authorization or (ii) it is not likely to approve any applications made to
such Governmental Authority with respect to any of the Products or any Material Agreement. The Obligors and their Subsidiaries have made
all material required notices, registrations and reports (including field alerts or other reports of adverse experiences) and other filings
with respect to each such Person’s Products and Product Commercialization and Development Activities.
(c) Except
as set forth on Schedule 7.18(c), and without limiting the generality of any other representation or warranty made by any Obligor
hereunder or under any other Loan Document: (i) no Obligor, nor any of its Subsidiaries nor, to the knowledge of any Obligor, 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) no
Obligor, nor any of its Subsidiaries nor, to the knowledge of any Obligor, 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 any Obligor, any of its
Subsidiaries or, to the knowledge of any Obligor, 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 any Obligor, there is no basis in fact for any material
adverse regulatory action against such Obligor or any of its Subsidiaries or, to the knowledge of any Obligor, 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 any Obligor 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 any Obligor, 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 each Obligor, 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. No Obligor nor any of its Subsidiaries,
nor, to the knowledge of any Obligor, 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.
7.19 Transactions
with Affiliates. Except as set forth on Schedule 7.19, no Obligor nor any of its Subsidiaries
has entered into, renewed, extended or been a party to, any transaction (including the purchase, sale, lease, transfer or exchange of
property or assets of any kind or the rendering of services of any kind) with any Affiliate.
7.20 OFAC;
Anti-Terrorism Laws.
(a) Neither
the Borrower nor any of its Subsidiaries is in violation of any Anti-Terrorism Law or engages in or conspires to engage in any transaction
that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the Anti-Terrorism Laws.
(b) Neither
the Borrower nor any of its Subsidiaries, nor, to the knowledge of the Borrower, any of their respective directors, officers, or employees
(i) is currently the target of any Sanctions, (ii) is located, organized or residing in any Designated Jurisdiction in violation
of Sanctions, or (iii) is or has been (within the previous five (5) years) engaged in any transaction with, or for the benefit
of, any Person who is now or was then the target of Sanctions or who is located, organized or residing in any Designated Jurisdiction,
in violation of Sanctions. No Loan, nor the proceeds from any Loan, has been or will be used, directly or, to the knowledge of the Borrower,
indirectly, to lend, contribute or provide to, or has been or will be otherwise made available for the purpose of funding, any activity
or business in any Designated Jurisdiction in violation of Sanctions or for the purpose of funding any activity or business of any Person
located, organized or residing in any Designated Jurisdiction or who is the subject of any Sanctions, in violation of Sanctions, or in
any manner that will result in any violation by any party to this Agreement of Sanctions.
7.21 Anti-Corruption.
Neither the Borrower nor any of its Subsidiaries, nor, to the knowledge of the Borrower, any of their respective directors, officers or
employees, directly or, to the knowledge of the Borrower, 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 Borrower, indirectly, any Prohibited Payment.
7.22 BXCL
701 Assets. The BXCL 701 Subsidiaries do not own, license or have the right to use any assets
other than (i) following the BXCL 701 Asset Contribution, the BXCL 701 Assets and (ii) other assets transferred to, or acquired
by, the BXCL 701 Subsidiaries in compliance with Sections 9.09 and 9.19. The Intellectual Property included in the BXCL
701 Assets relate exclusively to BXCL 701 and the Emerging 701 Pipeline, and none of the Intellectual Property included in BXCL 701 Assets
is used in connection with any other Products, including BXCL 501.
7.23 Priority
of Obligations. The Obligations constitute unsubordinated obligations of the Obligors, and except
for any obligations which have priority under applicable Law, rank at least pari passu in right of payment with all other unsubordinated
Indebtedness of the Obligors.
7.24 Royalty
and Other Payments. Except as set forth on Schedule 7.24, no Obligor, nor any of its Subsidiaries,
is obligated to pay any royalty, milestone payment, deferred payment or any other contingent payment in respect of any Product.
7.25 Non-Competes.
Neither the Borrower, any other Obligor, nor any of their respective Subsidiaries, nor any of their respective directors, officers or
employees, is subject to a non-compete agreement that prohibits or will interfere with any of the Product Commercialization and Development
Activities, including the development, commercialization or marketing of any Product.
7.26 Security
Interest. Each Security Document is effective to create in favor of Administrative Agent for
the benefit of the Secured Parties a legal, valid and enforceable security interest in the Collateral subject thereto and, upon satisfaction
of the Perfection Requirements, each such security interest is perfected to the extent required by (and has the priority required by)
the applicable Security Document. The Security Documents collectively are effective to create in favor of Administrative Agent for the
benefit of the Secured Parties a legal, valid and enforceable security interest in the Collateral, which security interests are first-priority
(subject only to Permitted Priority Liens).
7.27 Data
Privacy. Neither any Obligor nor any of their Subsidiaries has experienced any 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 or other third parties that is in its possession, custody, or control, in each case, except
as would not reasonably be expected to have a Material Adverse Effect.
SECTION 8.
AFFIRMATIVE COVENANTS
Each Obligor covenants and
agrees with the Administrative Agent and the Lenders that, until the Commitments have expired or been terminated and all Obligations (other
than inchoate indemnification and expense reimbursement obligations for which no claim has been made) have been indefeasibly paid in full
in cash:
8.01 Financial
Statements and Other Information. The Borrower will furnish to the Administrative Agent:
(a) as
soon as available and in any event within forty-five (45) days after the end of the first three (3) fiscal quarters of each fiscal
year (i) the consolidated balance sheets of the Borrower and its Subsidiaries as of the end of such fiscal quarter and (ii) the
related consolidated statements of income and cash flows of the Borrower and its Subsidiaries for such quarter and the portion of the
fiscal year through the end of such fiscal quarter, in each case prepared in all material respects in accordance with GAAP consistently
applied, all in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding fiscal
year, together with (iii) a certificate of a Responsible Officer of the Borrower stating that (x) such financial statements
fairly present in all material respects the financial condition of the Borrower and its Subsidiaries as at such date and (y) the
results of operations of the Borrower and its Subsidiaries for the period ended on such date have been prepared in all material respects
in accordance with GAAP consistently applied, subject to changes resulting from normal, year-end audit adjustments and except for the
absence of notes; provided that documents required to be furnished pursuant to this Section 8.01(a) shall be deemed
furnished on the date that such documents are publicly available on “EDGAR” (with the related certificate separately delivered);
(b) as
soon as available and in any event within ninety (90) days after the end of each fiscal year (i) the consolidated balance sheets
of the Borrower and its Subsidiaries as of the end of such fiscal year and (ii) the related consolidated statements of income, stockholders’
equity and cash flows of the Borrower and its Subsidiaries for such fiscal year, in each case prepared in all material respects in accordance
with GAAP consistently applied, all in reasonable detail and setting forth in comparative form the figures for the previous fiscal year,
accompanied by a report and opinion thereon of Ernst & Young U.S. LLP or another firm of independent certified public accountants
of recognized national standing reasonably acceptable to the Administrative Agent, which report and opinion shall be prepared in accordance
with generally accepted auditing standards and such report and opinion shall not be subject to any “going concern” or like
qualification or exception or emphasis of matter of going concern footnote or any qualification or exception as to the scope of such audit,
and in the case of such consolidated financial statements, certified by a Responsible Officer of the Borrower; provided that documents
required to be furnished pursuant to this Section 8.01(b) shall be deemed furnished on the date that such documents are
publicly available on “EDGAR”;
(c) together
with the financial statements required pursuant to Section 8.01(a) and (b), a compliance certificate signed by
the chief financial or accounting Responsible Officer of the Borrower as of the end of the applicable accounting period (which delivery
may be by electronic communication including fax or email and shall be deemed to be an original, authentic counterpart thereof for all
purposes) substantially in the form of Exhibit E (a “Compliance Certificate”) including (i) details
of any issues that are material that are raised by auditors and any occurrence or existence of any event, circumstance, act or omission
that would cause any representation or warranty contained in Section 7.07, Section 7.18 or Section 7.23
to be incorrect in any material respect (or in any respect if such representation or warranty is qualified by materiality or by reference
to Material Adverse Effect or Material Adverse Change) if such representation or warranty were to be made at the time of delivery of a
Compliance Certificate, and (ii) for any fiscal period when the Minimum Revenue Covenant is in effect, a certification as to whether
or not the Borrower is in compliance with the Minimum Revenue Covenant as of the last day of such period;
(d) after
being prepared by the Borrower and approved by its Board, and promptly following the Administrative Agent’s request therefor, a
consolidated financial forecast for the Borrower and its Subsidiaries for the fiscal year to which such forecast relates; provided
that, for each fiscal year, on or before the seventy-fifth (75th) day following the beginning of such fiscal year, the Borrower shall
prepare, and its Board shall approve such consolidated financial forecast for such fiscal year, and the Borrower shall notify the Administrative
Agent promptly after the Board has given such approval;
(e) promptly
after the same are released, copies of any press release required by U.S. securities laws to be filed with the SEC (excluding, for the
avoidance of doubt, marketing press releases); provided that documents required to be furnished pursuant to this Section 8.01(e) shall
be deemed furnished on the date that such documents are publicly available on “EDGAR”;
(f) promptly,
and in any event within five (5) Business Days after receipt thereof by an Obligor thereof, copies of each notice or other correspondence
received from any securities regulator or exchange to the authority of which the Borrower may become subject from time to time concerning
any investigation or possible investigation or other inquiry (other than routine comment letters from the SEC) by such agency regarding
financial or other operational results of such Obligor; provided that documents required to be furnished pursuant to this Section 8.01(f) shall
be deemed furnished on the date that such documents are publicly available on “EDGAR”;
(g) promptly
after the same are available, copies of each annual report, proxy or financial statement or other report or communication sent to the
stockholders of each Obligor and its Subsidiaries, and copies of all annual, regular, periodic and special reports and registration statements
which any Obligor or its Subsidiaries may file or be required to file with any securities regulator or exchange to the authority of which
such Obligor or such Subsidiary, as applicable, may become subject from time to time; provided that documents required to be furnished
pursuant to this Section 8.01(g) shall be deemed furnished on the date that such documents are publicly available on
“EDGAR”;
(h) the
information regarding insurance maintained by the Borrower and its Subsidiaries as required under Section 8.05;
(i) as
soon as possible and in any event within five (5) Business Days after the Borrower obtains knowledge of any Claim related to any
Product or inventory involving more than $3,750,000 (or the Equivalent Amount in other currencies), written notice thereof from a Responsible
Officer of the Borrower which notice shall include a statement setting forth details of such return, recovery, dispute or claim;
(j) together
with the delivery of the Compliance Certificate, evidence satisfactory to the Administrative Agent, based upon the Borrower’s bank
account statements that the Borrower is in compliance with the Minimum Liquidity Covenant; and
(k) such
other information respecting the businesses, financial performance, operations condition of the assets or liabilities of the Obligors
(including with respect to the Collateral), taken as a whole, as the Administrative Agent may from time to time reasonably request.
8.02 Notices
of Material Events. The Borrower will furnish to the Administrative Agent written notice of the
following (x) with respect to clause (a) below within three (3) Business Days and (y) with respect to clause
(b) through (m) below, within five (5) Business Days, in each case, after a Responsible Officer of the Borrower
first learns of or acquires knowledge with respect to:
(a) the
occurrence of any Default or Event of Default;
(b) the
occurrence of any event with respect to the property or assets of the Borrower or any of its Subsidiaries resulting in a Loss aggregating
$3,750,000 (or the Equivalent Amount in other currencies) or more;
(c) (i) any
proposed acquisition of stock, assets or property by the Borrower or any of its Subsidiaries that would reasonably be expected to result
in material Environmental Liability, and (ii) any spillage, leakage, discharge, disposal, leaching, migration or release of any Hazardous
Material by the Borrower or any of its Subsidiaries required to be reported to any Governmental Authority or that would reasonably be
expected to result in material Environmental Liability;
(d) the
assertion of any Claim under any Environmental Law by any Person against, or with respect to the activities of, the Borrower or any of
its Subsidiaries and any alleged liability or non-compliance with any Environmental Laws or any permits, licenses or authorizations issued
pursuant to Environmental Laws which would reasonably be expected to involve damages in excess of $2,500,000 (or the Equivalent Amount
in other currencies) other than any such Claim or alleged violation that would not (either individually or in the aggregate) reasonably
be expected to have a Material Adverse Effect;
(e) the
filing or commencement of any action, suit or proceeding by or before any arbitrator or Governmental Authority against or affecting the
Borrower or any of its Affiliates that would reasonably be expected to result in a Material Adverse Effect;
(f) (i) the
intention of any ERISA Affiliate to file any notice of intent to terminate any Title IV Plan, a copy of such notice and (ii) the
filing by any ERISA Affiliate of a request for a minimum funding waiver under Section 412 of the Code with respect to any Title IV
Plan or Multiemployer Plan, in each case in writing and in reasonable detail (including a description of any action that any ERISA Affiliate
proposes to take with respect thereto, together with a copy of any notice filed with the PBGC or the IRS pertaining thereto);
(g) (i) the
termination of any Permitted License that is an exclusive license and material to the Product Commercialization and Development Activities
or any Material Agreement other than in accordance with its terms and not as a result of a breach or default, (ii) the receipt by
the Borrower or any of its Subsidiaries of any notice of a material breach or default under any Permitted License that is an exclusive
license and material to the Product Commercialization and Development Activities or any Material Agreement (and a copy thereof) asserting
a default by such Obligor or any of its Subsidiaries where such alleged default would permit such counterparty to terminate such Permitted
License or Material Agreement, (iii) the entering into of (A) any new Material Agreement by any Obligor (and a copy thereof)
or (B) any Permitted License that is an exclusive license and material to the Product Commercialization and Development Activities
or (iv) any material amendment to a Permitted License that is an exclusive license and material to the Product Commercialization
and Development Activities or Material Agreement that would be adverse in any material respect to the Lenders (and a copy thereof); provided,
that the Borrower shall not be required to provide such notice if such documents become publicly available on “EDGAR” within
the time period notice would otherwise be required pursuant to this Section 8.02;
(h) any
material change in accounting policies or financial reporting practices by the Borrower or any of its Subsidiaries;
(i) any
labor controversy resulting in or threatening to result in any strike, work stoppage, boycott, shutdown or other material labor disruption
against or involving an Obligor;
(j) any
Contract entered into by the Borrower or any of its Subsidiaries in connection with any Claim of actual or alleged infringement, misappropriation
or violation of any Material Intellectual Property by or against the Borrower or any of its Subsidiaries;
(k) the
creation, development or other acquisition (including any in-bound exclusive licenses) of any Material Intellectual Property by the Borrower
or any Subsidiary after the Closing Date that is issued, registered or becomes issued or registered or the subject of an application for
issuance or registration with any Governmental Authority; provided that, with respect to any such Material Intellectual Property
created, developed or acquired (including through any in-bound exclusive license) in any fiscal year, notice thereof pursuant to this
Section 8.02(k) shall be made in accordance with the timing of the financial statements for such fiscal year required
pursuant to Section 8.01(b);
(l) any
change to any Obligor’s or any of its Subsidiaries’ ownership of any Controlled Account, by delivering the Administrative
Agent a notice setting forth a complete and correct list of all such accounts as of the date of such change; and
(m) any
other development that results in, or would reasonably be expected to result in, a Material Adverse Effect.
Each notice delivered under this Section 8.02
shall be accompanied by a statement of a Responsible Officer of the Borrower setting forth the details of the event or development
requiring such notice and any action taken or proposed to be taken with respect thereto. Nothing in this Section 8.02 is intended
to waive, consent to or otherwise permit any action or omission that is otherwise prohibited by this Agreement or any other Loan Document.
8.03 Existence.
Such Obligor shall, and shall cause each of its Subsidiaries to, preserve, renew and maintain in full force and effect its legal existence;
provided that the foregoing shall not prohibit any merger, amalgamation, consolidation, liquidation or dissolution permitted under
Section 9.03.
8.04 Payment
of Obligations. Such Obligor will, and will cause each of its Subsidiaries to, pay and discharge
its obligations, including (i) all material Taxes, fees, assessments and governmental charges or levies imposed upon it or upon its
properties or assets prior to the date on which penalties attach thereto, and all lawful claims for labor, materials and supplies which,
if unpaid, might become a Lien upon any properties or assets of the Borrower or any of its Subsidiaries, except to the extent such Taxes,
fees, assessments or governmental charges or levies or such claims are being contested in good faith by appropriate proceedings and are
adequately reserved against in accordance with GAAP and (ii) all lawful claims which, if unpaid, would by law become a Lien upon
its property not constituting a Permitted Lien.
8.05 Insurance.
Such Obligor will, and will cause each of its Subsidiaries to maintain, with financially sound and reputable insurance companies, insurance
in such amounts and against such risks as are customarily maintained by companies engaged in the same or similar businesses, including
commercial property, liability and business interruption coverage. Upon the request of the Administrative Agent, the Borrower shall furnish
the Administrative Agent from time to time with (i) material information as to the insurance carried by it and, if so requested,
copies of all such insurance policies and (ii) a certificate from the Borrower’s insurance broker or other insurance specialist
stating that all premiums then due on the policies relating to insurance on the Collateral have been paid and that such policies are in
full force and effect. Receipt of notice of termination or cancellation of any such insurance policies or reduction of coverages or amounts
thereunder shall entitle the Secured Parties to renew any such policies, cause the coverages and amounts thereof to be maintained at levels
required pursuant to the first sentence of this Section 8.05 or otherwise to obtain similar insurance in place of such policies,
in each case, the Borrower will be responsible for the reasonable and documented cost of such insurance (to be payable on demand). The
amount of any such reasonable and documented expenses shall accrue interest at the Default Rate if not paid on demand and shall constitute
“Obligations.” Such Obligor shall cause each such policy of insurance (with respect to each such policy outstanding as of
the Closing Date, within the time period set forth in Section 8.19(b)) to (i) name the Administrative Agent, on behalf
of the Secured Parties, as an additional insured thereunder as its interests may appear, and (ii) in the case of each casualty insurance
policy (including business interruption, if any) contain a lender loss payable clause or endorsement naming the Administrative Agent,
on behalf of the Secured Parties, as loss payee thereunder and providing for at least thirty (30) days’ prior written notice to
the Agent (ten (10) days’ prior written notice in the event of cancellation for nonpayment) of any material modification or
cancellation of such policy, and otherwise reasonably satisfactory in form and substance to the Administrative Agent.
8.06 Books
and Records; Inspection Rights. Such Obligor will, and will cause each of its Subsidiaries to,
keep proper books of record and account in which full, true and correct (in all material respects) entries are made of all dealings and
transactions in relation to its business and activities. Such Obligor will, and will cause each of its Subsidiaries to, permit any representatives
designated by the Administrative Agent or the Lenders, upon reasonable prior notice, to visit and inspect its properties, to examine and
make extracts from its books and records, and to discuss its affairs, finances and condition (financial or otherwise) with its officers
and independent accountants, during normal business hours (but not more often than once per fiscal year unless an Event of Default has
occurred and is continuing) as the Administrative Agent or the Lenders may request; provided that such representative shall use
its commercially reasonable efforts to minimize disruption to the business and affairs of the Borrower as a result of any such visit,
inspection, examination or discussion. Notwithstanding anything to the contrary contained herein, no Obligor nor any of its Subsidiaries
will be required to disclose or permit the inspection or discussion of, any document, information or other matter (i) that constitutes
trade secrets or proprietary information, (ii) in respect of which disclosure to any Lender (or their respective representatives
or contractors) is prohibited by any applicable Law or any binding agreement with a third party (so long as such agreement is not entered
into in contemplation of this Agreement) or (iii) that is subject to attorney-client or similar privilege, which could reasonably
be expected to be lost or forfeited if disclosed to the Administrative Agent or any Lender. The Borrower shall pay all reasonable and
documented costs of all such inspections.
8.07 Compliance
with Laws and Other Obligations. Such Obligor will, and will cause each of its Subsidiaries to,
(i) comply with all Laws (including Anti-Terrorism Laws, Sanctions and Environmental Laws) applicable to it and its business activities,
(ii) comply in all material respects with all Healthcare Laws and Governmental Approvals (including Product Authorizations) applicable
to it and its business activities and (iii) maintain in full force and effect, remain in compliance with, and perform all obligations
under all Material Agreement to which it is a party, except, in the case of clauses (i) and (iii) above, where
the failure to do so would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect. Within
30 days after the Closing Date, each Obligor shall institute (if not already in effect) and thereafter maintain in effect and enforce
policies and procedures reasonably designed to promote compliance by such Obligor, its Subsidiaries and their respective directors, officers,
employees and agents with Anti-Terrorism Laws and Sanctions.
8.08 Maintenance
of Properties, Etc. Such Obligor shall, and shall cause each of its Subsidiaries to, maintain
and preserve all of its assets and properties, including all assets and properties, whether tangible or intangible, relating to its Products
or Product Commercialization and Development Activities, 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 and except where the failure to do so, individually or in the aggregate, would not reasonably be expected
to result in a Material Adverse Effect.
8.09 Licenses.
Such Obligor shall, and shall cause each of its Subsidiaries to, obtain and maintain all Governmental Approvals necessary in connection
with the execution, delivery and performance of the Loan Documents, the consummation of the Transactions 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 would not reasonably be expected to have a Material Adverse Effect.
8.10 Use
of Proceeds. The proceeds of the Loans will be used only as provided in Section 2.05.
No part of the proceeds of the Loans will be used, whether directly or indirectly, for any purpose that entails a violation of any of
the Regulations of the Board of Governors of the Federal Reserve System, including Regulations T, U and X.
8.11 Certain
Obligations Respecting Subsidiaries; Further Assurances.
(a) Subsidiary
Guarantors, etc. Subject to clauses (c) and (d) below, in the event that the Borrower or any of its Subsidiaries
shall form or acquire any new Subsidiary, the Borrower shall promptly (and in any event within forty-five (45) calendar days):
(i) cause
such new Subsidiary to become (x) a “Subsidiary Guarantor” hereunder pursuant to a Guarantee Assumption Agreement and
(y) a “Grantor” under the Security Agreement;
(ii) take
such action or cause such Subsidiary to take such action (including joining the Security Agreement and delivering shares of stock together
with undated transfer powers executed in blank, applicable control agreements and other instruments) as shall be reasonably necessary
or desirable or reasonably requested by the Administrative Agent in order to create and perfect, in favor of the Administrative Agent,
for the benefit of the Secured Parties, valid and enforceable first priority (subject to Permitted Priority Liens) Liens on substantially
all of the personal property of such new Subsidiary as collateral security for the Obligations hereunder; provided that any such
security interest or Lien shall be subject to the relevant requirements of the Security Documents and the Intercompany Subordination Agreement;
(iii) to
the extent that the parent of such Subsidiary is not a party to the Security Agreement or has not otherwise pledged Equity Interests in
its Subsidiaries in accordance with the terms of the Security Agreement and this Agreement, cause the parent (if possible) of such Subsidiary
to execute and deliver a pledge agreement in favor of the Administrative Agent, for the benefit of the Secured Parties, in respect of
all outstanding issued shares of such Subsidiary;
(iv) deliver
such proof of corporate action, incumbency of officers, and other applicable documents as is consistent with those delivered by each Obligor
pursuant to Section 6.01 or as the Administrative Agent shall reasonably request; and
(v) cause
each new Subsidiary to become a party to the Intercompany Subordination Agreement.
(b) Further
Assurances. Subject to clauses (c) and (d) below:
(i) such
Obligor will take such action from time to time as shall reasonably be requested by the Administrative Agent to effectuate the purposes
and objectives of this Agreement and the Security Agreement;
(ii) in
the event that such Obligor creates, develops or otherwise acquires Intellectual Property during the term of this Agreement, then the
provisions of this Agreement and the Security Agreement shall and hereby does automatically apply thereto and any such Intellectual Property
shall automatically constitute and hereby does constitute part of the Collateral under the Security Documents, without further action
by any party, in each case from and after the date of such creation, development or acquisition;
(iii) without
limiting the generality of the foregoing, each Obligor will, and will cause each Person that is required to be a Subsidiary Guarantor
to, take such action from time to time (including joining the Security Agreement and delivering shares of stock together with undated
transfer powers executed in blank, applicable control agreements and other instruments) as shall be reasonably requested by the Administrative
Agent to create, in favor of the Secured Parties, perfected security interests and Liens in substantially all of the personal property
(other than Excluded Assets (as defined in the Security Agreement)) of such Obligor as collateral security for the Obligations; provided
that any such security interest or Lien shall be subject to the relevant requirements of the Security Documents;
(iv) promptly
(and in any event within five (5) Business Days) following the acquisition by any Obligor following the Closing Date of any fee interest
in real property or lessee interest under a ground lease having a value in excess of $1,000,000, such Obligor shall notify Administrative
Agent of such fact and shall, if so requested by Administrative Agent, within thirty (30) days following such request by Administrative
Agent (or such longer period as agreed by Administrative Agent in its reasonable discretion), with respect to any such owned or leased
real estate, deliver or cause to be delivered to Administrative Agent the following (collectively, “Mortgage Deliverables”):
(A) a mortgage or deed of trust, as applicable, in form and substance reasonably satisfactory to Administrative Agent, executed by
the title holder thereof and recorded in the applicable jurisdiction, granting Administrative Agent, on behalf of the Lenders, a first
priority Lien on the fee or lessee interest in such real estate, (B) a lender’s title insurance policy issued by a title insurer
reasonably satisfactory to Administrative Agent in form and substance and in amounts reasonably satisfactory to Administrative Agent insuring
Administrative Agent’s, for itself and on behalf of the Lenders’, first priority Lien in the fee or lessee interest in such
real estate, free and clear of all defects and encumbrances except Permitted Liens, (C) a current ALTA survey, certified to Administrative
Agent, for itself and on behalf of the Lenders, by a licensed surveyor, in form and substance reasonably satisfactory to Administrative
Agent, or survey affidavits sufficient to allow the issuer of the lender’s title insurance policy to issue such policy without a
survey exception, (D) a certificate, in form and substance reasonably acceptable to Administrative Agent, to Administrative Agent
from a national certification agency acceptable to Administrative Agent, indicating whether such real estate is located in a special flood
hazard area and (E) legal opinions in form and substance reasonably acceptable to Administrative Agent from one or more law firms
reasonably acceptable to Administrative Agent opining as to due execution, authority, noncircumvention, recordability, perfection and
enforceability of such mortgage or deed of trust; and
(v) in
the event that such Obligor is party to (i) any lease agreement with respect to real property or (ii) any warehousing or bailment
arrangement pursuant to which inventory, equipment or other assets of the Obligors are stored at a third-party warehouse or other facility,
such Obligor shall use its commercially reasonable efforts to obtain a Landlord Consent or Bailee Letter, as applicable, within 30 days
after entry into such agreement or arrangement.
(c) Excluded
Subsidiaries. Notwithstanding any term or provision of this Agreement to the contrary, (x) no
Subsidiary that is a (i) CFC, (ii) CFC Holding Company or (iii) Domestic Subsidiary of either of the foregoing, shall be
required to become a Subsidiary Guarantor, (y) the Obligors shall not be required to pledge (or cause to be pledged) to the Administrative
Agent, for the benefit of the Secured Parties, Equity Interests of any Subsidiary representing, in the aggregate, more than sixty-five
percent (65%) of the Equity Interests of any CFC or CFC Holding Company, and (z) no Immaterial Subsidiary shall be required to become
a Subsidiary Guarantor.
(d) Limitations
on Certain Obligations. Notwithstanding any term or provision of this Agreement to the contrary:
(i) the
foregoing clauses (a)(i)(y), (a)(ii), (a)(iii) and (b) of this Section 8.11 shall not apply to the BXCL 701 Subsidiaries;
and
(ii) (A) no
Obligor shall be required to enter into or obtain any leasehold mortgage or any similar agreement in respect of any leasehold interest
in real property and (B) no actions or undertakings described in the foregoing clauses (a)(ii) or (b) of this Section 8.11,
and no collateral or security filings, shall be required in any jurisdiction outside the United States.
8.12 Termination
of Non-Permitted Liens. In the event that any Obligor shall become aware of, or be notified by
the Administrative Agent or any Lender of the existence of, any outstanding Lien against any assets or property of such Obligor or any
of its Subsidiaries, which Lien is not a Permitted Lien, such Obligor shall use its commercially reasonable efforts to promptly terminate
or cause the termination of such Lien. This provision shall not limit any rights or remedies the Administrative Agent and Lenders have
upon the occurrence and during the continuance of an Event of Default.
8.13 Board
Materials; Oaktree Lender Board Observer.
(a) Regardless
of whether the Oaktree Lender has the right to designate a Board Observer (as defined below): (i) the Borrower shall deliver to the
Administrative Agent copies of any agenda and other written materials provided to the board of directors (or any committee thereof) of
the Borrower prior to any meeting of the board of directors (or such committee thereof), at or reasonably promptly after such materials
are furnished to the members of the board of directors (or such committee thereof), (ii) copies of all minutes of meetings of the
board of directors (or any committee thereof) of the Borrower at or promptly after such minutes are furnished to the members of the board
of directors (or such committee thereof), (iii) copies of all material written consents duly passed by the board of directors (or
any committee thereof) of the Borrower and (iv) promptly upon presentation of any regular periodic materials to the board of directors
(or any committee thereof) of the Borrower reporting on the current, past or future financial performance and business and operations
of the Borrower or any of its Subsidiaries (which shall include, among other things, development updates with respect to material Products,
and updates with respect to material events relating to other Material Agreements), copies of such materials shall be delivered to the
Administrative Agent; provided that any such material may be redacted by the Borrower to (A) exclude information pertaining
to the Borrower’s strategy regarding the Loans, (B) preserve attorney-client privilege or (C) protect individually identifiable
health information (as defined under HIPAA) or other confidential information relating to healthcare patients; provided, further
that such redactions are restricted so as to be only as extensive as is reasonably necessary in order to exclude information described
in clauses (A), (B) or (C).
(b) Upon
the request of the Oaktree Lender and after both Tranche A-1 Loan and Tranche B Loan have been
funded, the Borrower shall permit a single designee of the Oaktree Lender to be a board observer to the Borrower or any committee thereof
performing such functions (the “Board Observer”). In such capacity, the Board Observer shall be entitled to attend
all meetings of the board of directors of the Borrower and any committee thereof. The Borrower shall ensure that the Board Observer is
invited to each such meeting at the same time as each other member of the board of directors and that such Board Observer receives all
board materials at the same time as each other member of the board of directors; provided that any such material may be redacted
by Borrower, and Borrower may exclude the Board Observer from meetings of the board of directors or any committee thereof, in order to
(i) prevent the Board Observer from receiving or learning information relating to the Borrower’s strategy regarding the Loans,
(ii) preserve attorney-client privilege or (iii) protect individually identifiable health information (as defined under HIPAA)
or other confidential information relating to healthcare patients; provided, further, that such redactions and the exclusion
of the Board Observer are restricted so as to be only as extensive as is reasonably necessary in order to exclude or prevent access to
the Board Observer to information described in clauses (i), (ii) or (iii). If appointed, the Board Observer may resign or withdraw
at any time, or, at the request of the Oaktree Lender, be replaced by a designee of the Oaktree Lender that is reasonably acceptable to
the Borrower.
(c) Without
otherwise limiting the Administrative Agent’s and Lenders’ right to expense reimbursement hereunder, the Borrower shall reimburse
the Oaktree Lender for all reasonable and documented out-of-pocket expenses incurred by or on behalf of the Oaktree Lender or the Board
Observer in attending any meetings of the board of directors or any committee thereof or otherwise in connection with the exercise of
their rights hereunder.
8.14 [Reserved].
8.15 Maintenance
of Regulatory Approvals, Contracts, Intellectual Property, Etc. With respect to the Products
and all Product Commercialization and Development Activities, such Obligor will, and will cause each of its Subsidiaries (to the extent
applicable) to, (i) maintain in full force and effect all Regulatory Approvals, Material Agreements, Material Intellectual Property
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, (ii) maintain in full force and effect, and
pay all costs and expenses relating to, such Regulatory Approvals, Material Agreements and Material Intellectual Property owned, used
or controlled by such Obligor 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 Effect, (iii) promptly after obtaining knowledge
thereof, notify the Administrative Agent of any infringement or other violation by any Person of such Obligor’s or any such Subsidiaries’
Material Intellectual Property, and use commercially reasonable efforts to stop, curtail or abate such infringement if determined appropriate
by the Borrower in the exercise of its business judgment and (iv) promptly after obtaining knowledge thereof, notify the Administrative
Agent of any Claim by any Person that the conduct of the business of any Obligor or any of its Subsidiaries, including in connection with
any Product Commercialization and Development Activities, has infringed upon any Intellectual Property of such Person, where such Claim
would reasonably be expected to have a Material Adverse Effect.
8.16 ERISA
Compliance. Such Obligor shall comply, and shall cause each of its Subsidiaries to comply, with
the provisions of ERISA with respect to any Plans to which such Obligor or such Subsidiary is a party as an employer in all material respects.
8.17 Cash
Management. Such Obligor (in each case, except for any BXCL 701 Subsidiary) shall, and shall
cause each of its Subsidiaries to:
(a) cause
each deposit account, disbursement account, investment account (or other similar account) and lockbox of any Obligor (in each case, other
than any Excluded Accounts) opened after the Closing Date to, within thirty (30) days of account opening and at all times thereafter be
subject to an account control agreement between the applicable Obligor, the Administrative Agent and the applicable depositary institution
in favor of the Administrative Agent in form and substance reasonably acceptable to the Administrative Agent (each such deposit account,
disbursement account, investment account (or similar account) and lockbox, a “Controlled Account”) that (A) ensures,
to the extent necessary under applicable law, the perfection of a first priority (subject to Permitted Priority Liens) security interest
in favor of the Administrative Agent on such Controlled Account, (B) provides that, upon written notice from the Administrative Agent,
such depositary institution shall comply with instructions originated by the Administrative Agent directing disposition of the funds in
such Controlled Account without further consent of the applicable Obligor and (C) may not be terminated without prior written consent
of the Administrative Agent; and
(b) at
any time after the occurrence and during the continuance of an Event of Default, at the request of the Administrative Agent, each Obligor
shall cause all payments constituting proceeds of accounts to be directed into lockbox accounts under agreements in form and substance
satisfactory to the Administrative Agent.
8.18 Amendments
to Agreements. The Collaboration Agreement Option, the BioXcel Trademark Agreement and the Commercial
Supply Agreement shall not be amended or otherwise modified in a manner materially adverse to the interest of the Lenders without the
prior written consent of the Majority Lenders.
8.19 Post-Closing
Obligations.
(a) By
July 19, 2022 (or such later date as agreed by the Administrative Agent in its sole discretion), the Borrower shall deliver to Administrative
Agent evidence in form and substance satisfactory to the Administrative Agent that the Borrower has (i) obtained from each inventor
who is obligated to assign to Borrower, a customary invention assignment agreement presently assigning all of such inventor’s right,
title and interest in and to each Patent set forth on Schedule 8.19 to Borrower and (ii) made the necessary filings with the
United States Patent and Trademark Office (“USPTO”) to evidence in the records of the USPTO that the Borrower
is the sole assignee and owner (or, solely with respect to those Patents identified on Schedule 8.19 as jointly owned, an assignee
and joint owner) of each of the Patents set forth on Schedule 8.19.
(b) By
June 3, 2022 (or such later date as agreed by the Administrative Agent in its sole discretion), Borrower shall cause all insurance
policies so required pursuant to the Loan Documents to (i) name the Administrative Agent, on behalf of the Secured Parties, as an
additional insured thereunder as its interests may appear, and (ii) in the case of each casualty insurance policy (including business
interruption, if any) contain a lender loss payable clause or endorsement naming the Administrative Agent, on behalf of the Secured Parties,
as loss payee thereunder and providing for at least thirty (30) days’ prior written notice to the Administrative Agent (ten (10) days’
prior written notice in the event of cancellation for nonpayment) of any material modification or cancellation of such policy.
(c) In
the event that BioXcel LLC shall at any time cease to own, directly or indirectly, at least 20% of the Equity Interests in the Borrower,
the Borrower shall use its commercially reasonable efforts to enter into an amendment to the Shared Services Agreement with BioXcel LLC
pursuant to which the Borrower’s option to enter into a collaborative services agreement with BioXcel LLC by which the Collaboration
Agreement Option shall be extended through at least the 91st day following the Maturity Date.
(d) Within
five` (5) Business Days following the Closing Date (or such longer period of time as agreed by the Administrative Agent in its sole
discretion) (the “Account Control Agreement Completion Date”), the Administrative Agent shall have received
evidence that (i) all deposit accounts, lockboxes, disbursement accounts, investment accounts or other similar accounts (other than
Excluded Accounts) of each Obligor located within the U.S. are Controlled Accounts and (ii) such Controlled Accounts are subject
to one or more account control agreements, in favor of, and satisfactory in form and substance to, the Administrative Agent that (A) ensures,
to the extent necessary under applicable law, the perfection of a first priority (subject to Permitted Priority Liens) security interest
in favor of the Administrative Agent on such Controlled Account, (B) provides that, upon written notice from the Administrative Agent,
such depositary institution shall comply with instructions originated by the Administrative Agent directing disposition of the funds in
such Controlled Account without further consent of the applicable Obligor and (C) may not be terminated without prior written consent
of the Administrative Agent.
8.20 Enforcement
of Trademark Rights. Borrower shall, promptly after becoming aware of any breach by BioXcel LLC
of the BioXcel Trademark Agreement or any use of the BIOXCEL trademark within the field of neuroscience (including by BioXcel LLC’s
other Affiliates), in each case, in a manner that is, or would reasonably be expected to be, material to the businesses of Borrower, the
Obligors, or any of their respective Subsidiaries, use its commercially reasonable efforts to enforce its rights, including under the
BioXcel Trademark Agreement, to prevent such further breach or use, and to otherwise mitigate any risk and adverse impact to such businesses.
SECTION 9.
NEGATIVE COVENANTS
Each Obligor covenants and
agrees with the Administrative Agent and the Lenders that, until the Commitments have expired or been terminated and all Obligations (other
than inchoate indemnification and expense reimbursement obligations for which no claim has been made), have been indefeasibly paid in
full in cash:
9.01 Indebtedness.
Such Obligor will not, and will not permit any of its Subsidiaries (in each case, except for the BXCL 701 Subsidiaries following a Permitted
BXCL 701 Release Event) to, create, incur, assume or permit to exist any Indebtedness, whether directly or indirectly, except:
(a) the
Obligations;
(b) Indebtedness
existing on the date hereof Closing Date
and set forth on Schedule 7.13(a) and Permitted Refinancings thereof; provided that, if such Indebtedness is intercompany
Indebtedness, (i) any Permitted Refinancing of such Indebtedness shall also be intercompany Indebtedness among the same parties and
(ii) such Indebtedness and any Permitted Refinancing thereof shall be subject to the Intercompany Subordination Agreement;
(c) accounts
payable to trade creditors for goods and services and current operating liabilities
(not the result of the borrowing of money)
incurred in the Ordinary Course of such Obligor’s or such Subsidiary’s business in accordance with customary
terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for in accordance with
GAAP;
(d) Indebtedness
consisting of guarantees resulting from the endorsement of negotiable instruments for collection in the Ordinary Course;
(e) Indebtedness
of an Obligor owing to any other Obligor, in each case, subject to the Intercompany Subordination Agreement;
(f) Indebtedness
of any Subsidiary that is not an Obligor owing to any other Subsidiary that is not an Obligor;
(g) Indebtedness
of any Obligor owing to any Subsidiary that is not an Obligor, subject to the Intercompany Subordination Agreement; provided that
the aggregate outstanding principal amount of such Indebtedness shall not exceed $5,000,000 at any time;
(h) Indebtedness
of any Subsidiary that is not an Obligor owing to any Obligor; provided that the aggregate outstanding principal amount of such
Indebtedness, together with Investments made pursuant to Section 9.05(e)(iii), shall not exceed $5,000,000 at any time;
(i) Guarantees
by any Obligor of Permitted Indebtedness of any other Obligor;
(j) Ordinary
Course Capital Lease Obligations and equipment and software financing and leasing; provided that (i) if secured, the collateral
therefor consists solely of the assets being financed, the products and proceeds thereof and books and records related thereto and (ii) the
outstanding principal amount of such Indebtedness does not exceed $10,000,000 (or the Equivalent Amount in other currencies) in the aggregate
at any time;
(k) Indebtedness
under (i) Permitted Hedging Agreements and (ii) Permitted Bond Hedge Transactions not exceeding, net of the proceeds of any
Permitted Warrant Transactions entered in connection therewith, 15% of the proceeds obtained in the related Permitted Convertible Debt
issuance;
(l) Indebtedness
assumed pursuant to any Permitted Acquisition; provided that (i) no such Indebtedness (individually) shall exceed 15% of the
total purchase price paid in connection with such Permitted Acquisition, (ii) the aggregate outstanding principal amount of Indebtedness
permitted pursuant to this Section 9.01(l) (and any Permitted Refinancing thereof) 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 Permitted Acquisition;
(m) Indebtedness
pursuant to the Revenue Interest Financing Agreement [reserved];
(n) other
Indebtedness in an aggregate outstanding principal amount not to exceed $10,000,000 (or the Equivalent Amount in other currencies);
(o) Permitted
Convertible Debt in aggregate principal amount not to exceed $150,000,000 in principal amount at any time outstanding;
(p) Indebtedness
in respect of letters of credit, bank guarantees, bankers’ acceptances or similar instruments issued or created, or related to obligations
or liabilities incurred, in the Ordinary Course, including in respect of workers compensation claims, health, disability or other employee
benefits or property, leases, commercial contracts, Indebtedness permitted pursuant to Section 9.01(r), casualty or liability
insurance or self-insurance or other reimbursement-type obligations regarding workers compensation claims;
(q) Indebtedness
arising in connection with the financing of insurance premiums in the Ordinary Course;
(r) Indebtedness
in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations arising in the
Ordinary Course;
(s) Indebtedness
in respect of (i) netting services, (ii) overdraft protections, (iii) business credit cards, (iv) purchasing cards,
(v) payment processing, (vi) automatic clearinghouse arrangements, (vii) arrangements in respect of pooled deposit or sweep
accounts, (viii) check endorsement guarantees, and (ix) otherwise in connection with deposit accounts or cash management services,
in each case, in the Ordinary Course;
(t) purchase
price adjustments, indemnity payments and other Deferred Acquisition Consideration in connection with any Permitted Acquisition, in each
case that are permitted pursuant to the definition of “Permitted Acquisition”; and
(u) Permitted
Warrant Transactions that constitute Indebtedness.
9.02 Liens.
Such Obligor will not, and will not permit any of its Subsidiaries (in each case, except for the BXCL 701 Subsidiaries following a Permitted
BXCL 701 Release Event) to, create, incur, assume or permit to exist any Lien on any property now owned by it or such Subsidiary, except:
(a) Liens
securing the Obligations;
(b) any
Lien on any property or asset of such Obligor or any of its Subsidiaries existing on the date hereofClosing
Date and set forth on Schedule 7.13(b) and renewals and extensions thereof in connection with Permitted Refinancings
of the Indebtedness being secured by such Lien; provided that (i) no such Lien (including any renewal or extension thereof)
shall extend to any other property or asset of such Obligor or any of its Subsidiaries and (ii) any such Lien shall secure only those
obligations which it secures on the date hereofClosing
Date 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;
(c) Liens
securing Indebtedness permitted under Section 9.01(j); provided that such Liens are restricted solely to the collateral
described in Section 9.01(j);
(d) Liens
imposed by any operation of Law arising in the Ordinary Course, (including (but
not limited to) carriers’, warehousemen’s, landlords’, and mechanics’ liens,
liens relating to leasehold improvements and other similar Liens arising in the Ordinary Course) and which (x) do not in the aggregate
materially detract from the value of the property subject thereto or materially impair the use thereof in the operations of the business
of such Person or (y) are being contested in good faith by appropriate proceedings, which proceedings have the effect of preventing
the forfeiture or sale of the property subject to such Liens and for which adequate reserves have been made if required in accordance
with GAAP;
(e) pledges,
deposits or other Liens made in the Ordinary Course (x) in connection with bids, contract leases, appeal bonds, workers’ compensation,
unemployment insurance or other similar social security legislation, or (y) securing liability for reimbursement or indemnification
obligations of (including obligations in respect of letters of credit or bank guarantees for the benefit of) insurance carriers providing
property, casualty or liability insurance to Borrower or any Subsidiary;
(f) Liens
securing Taxes, assessments and other governmental charges, the payment of which is not yet due or is being contested in good faith by
appropriate proceedings promptly initiated and diligently conducted and for which such reserve or other appropriate provisions, if any,
as shall be required by GAAP shall have been made;
(g) servitudes,
easements, rights of way, restrictions and other similar encumbrances on real property imposed by any Law and Liens consisting of zoning
or building restrictions, easements, licenses, restrictions on the use of real property or minor imperfections in title thereto which,
in the aggregate, are not material, and which do not in any case materially detract from the value of the property subject thereto or
interfere with the ordinary conduct of the business of any of the Obligors or any of their Subsidiaries;
(h) with
respect to any real property, (i) such defects or encroachments as might be revealed by an up-to-date survey of such real property;
(ii) the reservations, limitations, provisos and conditions expressed in the original grant, deed or patent of such property by the
original owner of such real property pursuant to all applicable Laws; and (iii) rights of expropriation, access or user or any similar
right conferred or reserved by or in any Law, which, in the aggregate for clauses (i), (ii) and (iii), are not
material, and which do not in any case materially detract from the value of the property subject thereto or interfere with the ordinary
conduct of the business of any of the Obligors or its Subsidiaries;
(i) Course;
Bankers liens, rights of setoff and similar Liens incurred on deposits made in the Ordinary
(j) Liens
securing Indebtedness permitted under Section 9.01(l); provided that (i) such Lien is not created in contemplation
of or in connection with such Permitted Acquisition pursuant to which such Indebtedness was assumed, (ii) such Lien shall not apply
to any other property or assets of the Borrower or any Subsidiary other than the assets subject to such Liens immediately prior to the
consummation of such Permitted Acquisition and (iii) such Lien shall secure only those obligations that it secured immediately prior
to the consummation of such Permitted Acquisition and Permitted Refinancings thereof;
(k) Liens
securing Indebtedness permitted under Sections 9.01(p), (q), (r), and (s).
(l) any
judgment lien or lien arising from decrees or attachments not constituting an Event of Default;
(m) Liens
arising from precautionary UCC financing statement filings regarding operating leases of personal property and consignment arrangements
entered into in the Ordinary Course;
(n) other
Liens not securing borrowed money which secure obligations in an aggregate amount not to exceed $5,000,000 (or the Equivalent Amount in
other currencies) at any time outstanding;
(o) Liens
securing Indebtedness permitted under Section 9.01(m) and which
are subject to the Permitted Intercreditor Agreement[reserved];
(p) Liens
in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation
of goods and incurred in the Ordinary Course;
(q) Permitted
Licenses and, solely with respect to assets owned by third parties and licensed or leased to such Obligor or any of its Subsidiaries,
retained interests or title of licensors or lessors that do not conflict with such Obligor’s or any such Subsidiaries’ use
thereof;
(r) Liens
on cash and Permitted Cash Equivalent Investments securing obligation under Permitted Hedging Agreements;
(s) (i) Liens
to secure payment of workers’ compensation, employment insurance, old age pensions, social security and other like obligations incurred
in the Ordinary Course (other than Liens imposed by ERISA) and (ii) deposits in respect of letters of credit, bank guarantees or
similar instruments issued for the account of any Obligor or any Subsidiary in the Ordinary Course supporting obligations of the type
set forth in clause (i) above;
(t) Liens
solely on any cash earnest money deposits made by Borrower or any of the Subsidiaries in connection with any letter of intent or purchase
agreement in respect of any Investment permitted hereunder; and
(u) Liens
arising out of any sale-leaseback transaction not prohibited by Section 9.14, so long as such Liens attach only to the property
sold and being leased in such transaction and any accessions and additions thereto or proceeds and products thereof and related property;
provided that no Lien otherwise permitted
under any of the foregoing clauses (b), (c), (d), (e) (g), and (i) through (p) of this Section 9.02
shall apply to any Material Intellectual Property, except for Liens securing Indebtedness permitted under clause (o) of
this Section 9.02.
9.03 Fundamental
Changes and Acquisitions. Such Obligor will not, and will not permit any of its Subsidiaries
(in each case, except for the BXCL 701 Subsidiaries following a Permitted BXCL 701 Release Event) to, (i) other than Permitted Acquisitions,
enter into any transaction of merger, amalgamation or consolidation (or otherwise merge, amalgamate or consolidate), (ii) liquidate,
wind up or dissolve itself (or suffer any liquidation or dissolution), (iii) sell or issue any of its Disqualified Equity Interests
or (iv) other than Permitted Acquisitions, make any Acquisition or otherwise acquire any business or substantially all the property
from, or Equity Interests of, or be a party to any Acquisition of, any Person, except:
(a) the
merger, amalgamation or consolidation or liquidation of any (i) Subsidiary with or into any Obligor; provided that with respect
to any such transaction involving (x) the Borrower, the Borrower must be the surviving or successor entity of such transaction and
(y) any other Obligor, such Obligor must be the surviving or successor entity of such transaction (unless such transaction involves
more than one Obligor, then an Obligor must be the surviving or successor entity of such transaction) or (ii) any Subsidiary that
is not an Obligor with or into any other Subsidiary that is not an Obligor;
(b) the
sale, lease, transfer or other disposition by (i) any Subsidiary of any or all of its property (upon voluntary liquidation or otherwise)
to any Obligor or (ii) any Subsidiary that is not an Obligor of any or all of its property (upon voluntary liquidation or otherwise)
to any other Subsidiary that is not an Obligor;
(c) the
sale, transfer or other disposition of the Equity Interests of (i) any Subsidiary to any Obligor or (ii) any Subsidiary that
is not an Obligor to any other Subsidiary that is not an Obligor;
(d) any
Permitted BXCL 701 Disposition Event; and
(e) the
disposition of any Subsidiary permitted by Section 9.09.
9.04 Lines
of Business. Such Obligor will not, and will not permit any of its Subsidiaries to, engage in
any business other than the business engaged in on the date hereofClosing
Date (or in the case of the BXCL 701 Subsidiaries, contemplated on the date hereofClosing
Date) by such Persons or a business reasonably related, incidental or complementary
thereto or reasonable extensions thereof.
9.05 Investments.
Such Obligor will not, and will not permit any of its Subsidiaries (in each case, except for the BXCL 701 Subsidiaries following a Permitted
BXCL 701 Release Event) to make, directly or indirectly, or permit to remain outstanding any Investments except:
(a) Investments
(but without giving effect to the cash return provision contained in the definition thereof) outstanding on the date
hereofClosing Date and identified in Schedule 9.05 and
any renewals, amendments and replacements thereof that do not increase the amount thereof of any such Investment, net of cash returns
thereon, or require that any additional Investment be made (unless otherwise permitted hereunder);
(b) operating
deposit accounts with banks (or similar deposit-taking institutions) that, in the case maintained by Obligors, are compliant with Section 8.17(a);
(c) extensions
of credit in the nature of accounts receivable or notes receivable arising from the sales of goods or services in the Ordinary Course;
(d) Permitted
Cash Equivalent Investments;
(e) Investments
by an Obligor (i) in another Obligor, (ii) in connection with a Permitted Acquisition, or (iii) in a Subsidiary that is
not an Obligor; provided that (A) Investments made pursuant to this clause (iii), together with any Indebtedness incurred
pursuant to Section 9.01(h), shall not exceed $5,000,000 in the aggregate at any time and (B) no Intellectual Property
shall be subject to any Investment pursuant to this clause (iii) (other than, with respect to each of the foregoing clauses
(A) and (B), pursuant to Permitted Licenses and Product Authorizations for non-U.S. jurisdictions contributed or transferred
to a non-U.S. Subsidiary solely for purposes of Product Commercialization and Development Activities in non-U.S. jurisdictions);
(f) Investments
by a Subsidiary that is not an Obligor in (i) any other Subsidiary that is not an Obligor and (ii) in any Obligor;
(g) Permitted
Hedging Agreements;
(h) Investments
consisting of prepaid expenses, negotiable instruments held for collection or deposit, security deposits with utilities, landlords and
other like Persons and deposits in connection with workers’ compensation and similar deposits, in each case, made in the Ordinary
Course;
(i) employee
loans, travel advances and guarantees in accordance with the Borrower’s usual and customary practices with respect thereto (if permitted
by applicable Laws) which in the aggregate shall not exceed $2,500,000 (or the Equivalent Amount in other currencies) outstanding at any
time;
(j) Investments
received in connection with any Insolvency Proceedings in respect of any customers, suppliers or clients and in settlement of delinquent
obligations of, and other disputes with, customers, suppliers or clients;
(k) Investments
in joint ventures; provided that (A) such Investments consisting of cash and Permitted Cash Equivalent Investments shall not
exceed $5,000,000 (or the Equivalent Amount in other currencies) in the aggregate outstanding at any time and (B) no Intellectual
Property shall be subject to an Investment pursuant to this Section 9.05(k) (other than pursuant to Permitted Licenses
and Product Authorizations in non-U.S. jurisdictions contributed or transferred to a non-U.S. joint venture for purposes of Product Commercialization
and Development Activities in non-U.S. jurisdictions);
(l) the
increase in value of any Investment otherwise permitted pursuant to this Section 9.05;
(m) other
Investments in an aggregate amount not to exceed $15,000,000 (or the Equivalent Amount in other currencies);
(n) Investments
of any Person in existence at the time such Person becomes a Subsidiary; provided such Investment was not made in connection with or anticipation
of such Person becoming a Subsidiary and any modification, replacement, renewal or extension thereof;
(o) Investments
(including Permitted Acquisitions) permitted under Section 9.03;
(p) the
BXCL 701 Asset Contribution; and
(q) Investments
permitted pursuant to Section 9.19(a).
9.06 Restricted
Payments. Such Obligor will not, and will not permit any of its Subsidiaries to, declare or make,
or agree to pay or make, directly or indirectly, any Restricted Payment; provided that the following Restricted Payments shall
be permitted so long as no Default (solely in the case of clauses (a), (b), (d), (h), (i) or (j) below) or Event of Default
has occurred and is continuing or could reasonably be expected to occur or result from such Restricted Payment:
(a) dividends
with respect to the Borrower’s Equity Interests payable solely in shares of its Qualified Equity Interests (or the equivalent thereof);
(b) the
Borrower’s purchase, redemption, retirement, or other acquisition of shares of its Equity Interests with the proceeds received from
a substantially concurrent issue of new shares of its Qualified Equity Interests;
(c) dividends
or distributions paid in cash by any Subsidiary to any Obligor;
(d) any
purchase, redemption, retirement or other acquisition of Equity Interests of the Borrower held by officers, directors and employees or
former officers, directors or employees (or their transferees, estates, or beneficiaries under their estates) of Borrower and its Subsidiaries
not to exceed $2,500,000 (or the Equivalent Amount in other currencies) in any fiscal year;
(e) cashless
exercises of options and warrants;
(f) cash
payments made by the Borrower in lieu of fractional shares upon exercise of warrants or options or conversions of convertible securities;
(g) Borrower
may acquire (or withhold) its Equity Interests pursuant to any employee equity incentive or similar plan to pay withholding taxes for
which Borrower is liable in respect of a current or former officer, director, employee, member of management or consultant upon such grant
or award (or upon vesting or exercise thereof);
(h) any
Investment permitted pursuant to Section 9.05 to the extent constituting a Restricted Payment;
(i) Permitted
Tax Distributions; and
(j) other
Restricted Payments in an aggregate amount not to exceed $2,500,000 (or the Equivalent Amount in other currencies) in any fiscal year.
Notwithstanding anything to
the contrary in the foregoing, (i) the issuance of, entry into (including any payments of premiums in connection therewith), performance
of obligations under (including any payments of interest), and conversion, exercise, repurchase, redemption, settlement or early termination
or cancellation of (whether in whole or in part and including by netting or set-off) (in each case, whether in cash, Common Stock or,
following a merger event or other change of the Common Stock, other securities or property), or the satisfaction of any condition that
would permit or require any of the foregoing, any Permitted Convertible Debt, any Permitted Bond Hedge Transaction and any Permitted Warrant
Transaction, in each case, shall not constitute a Restricted Payment by the Borrower, and (ii) BXCL 701 Disposition Proceeds shall
not be used for any Restricted Payments (other than dividends or distributions paid to an Obligor).
9.08 Payments
of Indebtedness. Such Obligor will not, and will not permit any of its Subsidiaries (in each
case, except for the BXCL 701 Subsidiaries following a Permitted BXCL 701 Release Event) to, make any payments in respect of any Indebtedness
other than (i) payments of the Obligations, (ii) scheduled payments of other Indebtedness (including
the Revenue Interest Financing) to the extent permitted pursuant to the terms, if any, of any applicable
subordination or intercreditor agreement in respect of the Obligations, (iii) intercompany indebtedness permitted under Section 9.01,
(iv) Indebtedness permitted to be incurred under Sections 9.01(b), (c), (j), (k), (l), (m),
(p), (q), (s) and (t), (v) Indebtedness permitted to be incurred under Section 9.01(o) and
Permitted Refinancings thereof; provided that any such payments shall only be made in Equity Interests and cash in lieu of fractional
shares (as well as cash to pay any accrued interest on the date of any Permitted Refinancing, exchange transaction, or payment made in
Equity Interests), (vi) scheduled payments of interest on such Indebtedness permitted pursuant to Section 9.01(o) and
(vii) Permitted Refinancings not prohibited hereunder.
9.09 Change
in Fiscal Year. Such Obligor will not, and will not permit any of its Subsidiaries to, change
the last day of its fiscal year from that in effect on the date hereofClosing
Date, except to change the fiscal year of a Subsidiary acquired in connection with
an Acquisition to conform its fiscal year to that of the Borrower.
9.10 Sales
of Assets, Etc. Such Obligor will not, and will not permit any of its Subsidiaries (in each case,
except for the BXCL 701 Subsidiaries following a Permitted BXCL 701 Release Event) to sell, lease or sublease (as lessor or sub-lessor),
sale and leaseback, assign, convey, exclusively license (in terms of geography or field of use), transfer, or otherwise dispose of any
of its businesses, assets or property of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned
or hereafter acquired (including accounts receivable and Equity Interests of Subsidiaries, but excluding de minimis shares of Equity Interests
required for qualification of directors under applicable law), in each case, involving property of the Borrower or any of its Subsidiaries
in excess of $2,000,000 (or the Equivalent Amount in other currencies) in one transaction or series of transactions (any thereof, an “Asset
Sale”), except:
(a) sales,
transfers and other dispositions of receivables in connection with the compromise, settlement or collection thereof in the Ordinary Course;
(b) sales
of inventory in the Ordinary Course in an Arm’s-Length Transaction and the use of cash and Cash Equivalents in the Ordinary Course
or as otherwise permitted pursuant to this Agreement;
(c) the
forgiveness, release or compromise of any amount owed to any Obligor or Subsidiary in the Ordinary Course;
(d) Permitted
Licenses;
(e) licenses,
transfers of assets, rights or property by Borrower or any Subsidiary to (i) any Obligor or (ii) solely with respect to assets,
rights or property other than Intellectual Property, any Subsidiary that is not an Obligor; provided, in that in the case of any
Asset Sales made by Obligors to non-Obligors pursuant to this clause (ii), the fair market value of the subject assets (excluding
Inventory and foreign Product Authorizations transferred to Subsidiaries formed outside the United States in the Ordinary Course) shall
not exceed $5,000,000 (or the Equivalent Amount in other currencies) in the aggregate;
(f) dispositions
(including by way of abandonment or cancellation) of any equipment and other tangible property that is surplus, obsolete or worn out or
no longer used or useful in the business disposed of in the Ordinary Course;
(g) dispositions
resulting from Casualty Events;
(h) the
unwinding of any Hedging Agreements permitted by Section 9.05 pursuant to its terms;
(i) in
connection with any transaction permitted under Section 9.03 or 9.05;
(j) dispositions
identified in Schedule 9.09;
(k) so
long as no Event of Default has occurred and is continuing, other Asset Sales with a fair market value not in excess of $5,000,000 (or
the Equivalent Amount in other currencies) in the aggregate in any fiscal year;
(l) (i) the
BXCL 701 Asset Contribution and (ii) any Permitted BXCL 701 Disposition Event;
(m) other
Asset Sales not in excess of (i) $15,000,000 (or the Equivalent Amount in other currencies) in the aggregate in any fiscal year and
(ii) $50,000,000 (or the Equivalent Amount in other currencies) in the aggregate during the term of this Agreement in which any Obligor
or any Subsidiary will receive cash proceeds in an amount equal to no less than seventy-five percent (75%) of the total consideration
(fixed or contingent) paid or payable to such Obligor or Subsidiary, but only so long as, unless otherwise waived by Administrative Agent
in its sole discretion, the Net Cash Proceeds from such Asset Sale are utilized to repay or prepay, in whole or in part, Indebtedness
under and in accordance with this Agreement and the other Loan Documents;
(n) dispositions
in the Ordinary Course consisting of the abandonment of Intellectual Property (other than Material Intellectual Property) which, in the
reasonable good faith determination of Borrower, are not material to the conduct of the business of the Obligors and the Subsidiaries;
and
(o) the
transfer or issuance of no more than 20% of the Equity Interests in any BXCL 701 Subsidiary to officers, directors and employees or former
officers, directors or employees (or their transferees, estates, or beneficiaries under their estates) of the Borrower or any of its Subsidiaries
pursuant to employee equity incentive or similar plans or otherwise as a component of such Persons’ compensation on terms and conditions
substantially consistent with the OnkosXcel Therapeutics, LLC and OnkosXcel Employee Holdings, LLC Management Incentive Plan in substantially
the form disclosed to the Administrative Agent prior to the Closing Date, as amended in any manner approved by Administrative Agent (such
approval not to be unreasonably withheld, conditioned or delayed).
Notwithstanding anything in this Agreement to
the contrary, (i) the Borrower shall not, and shall not permit any of its Subsidiaries (other than the BXCL 701 Subsidiaries) to
(x) directly or indirectly transfer, by means of contribution, sale, assignment, lease or sublease, license or sublicense, disposition
of any kind or otherwise, Material Intellectual Property held by the Borrower or any other Obligor to any Person other than the Borrower
or a Subsidiary Guarantor, other than pursuant to Permitted Licenses or as permitted pursuant to Section 9.09(j), Section 9.03
or Section 9.19, or (y) permit any Person other than the Borrower or a Subsidiary Guarantor to hold any interest
in such Material Intellectual Property (other than (A) pursuant to non-exclusive intercompany licenses or Permitted Licenses, (B) as
permitted by Section 9.09(g), Section 9.03 or Section 9.19, or (C) in the case of a foreign subsidiary,
a foreign Regulatory Approvals), and (ii) no Material Intellectual Property held by the Borrower or a Subsidiary Guarantor shall
be contributed as an Investment to any Subsidiary other than a Subsidiary Guarantor (other than pursuant to Permitted Licenses). Notwithstanding
the foregoing, prior to a Qualifying IPO, the BXCL 701 Subsidiaries shall hold no Material Intellectual Property other than any Intellectual
Property included in the BXCL 701 Assets or otherwise related to the oncology field and no Material Intellectual Property (other than
the BXCL 701 Assets) shall be directly or indirectly transferred by means of contribution, sale, assignment, lease or sublease, license
or sublicense, disposition of any kind or otherwise, by the Borrower or its Subsidiaries to the BXCL 701 Subsidiaries.
9.11 Transactions
with Affiliates. Such Obligor will not, and will not permit any of its Subsidiaries to, directly
or indirectly, enter into or permit to exist any transaction to sell, lease, license or otherwise transfer any assets to, or purchase,
lease, license or otherwise acquire any assets from, or otherwise engage in any other transactions with, any of its Affiliates, unless
such arrangement or transaction (i) is an Arm’s-Length Transaction, (ii) is of the kind which would be entered into by
a prudent Person in the position of the Borrower with another Person that is not an Affiliate; provided that (x) in connection with
any such transaction involving aggregate consideration or payments of at least $5,000,000, such transaction shall have been approved by
a majority of the directors serving on the Borrower’s board of directors that do not have any material direct or indirect financial
interest in or with respect to such transaction and (y) in connection with any such transaction involving aggregate consideration
or payments of at least $10,000,000, the Borrower shall have received a fairness opinion from a nationally recognized appraisal or investment
banking firm with respect to such transaction, (iii) is between or among (x) one or more Obligors, on the one hand, and, on
the other hand, one or more Obligors, (y) one or more Subsidiaries of the Obligors that are not Obligors, on the one hand, and, on
the other hand, one or more Subsidiaries of the Obligors that are not Obligors and (z) one or more Obligors or their Subsidiaries
that are not Obligors, on the one hand, and, on the other hand, one or more Obligors or their Subsidiaries that are Obligors (provided
that, with respect to clause (z) only, the terms thereof are no less favorable to the Obligors than those that would be
obtained in a comparable arm’s-length transaction with a non-affiliated Person); provided that the BXCL 701 Subsidiaries
shall be deemed not to be Obligors for purposes of this clause (iii), (iv) constitutes customary compensation and indemnification
of, and other employment arrangements with, directors, officers, and employees of any Obligor or its Subsidiaries in the Ordinary Course,
(v) constitutes payment of customary fees, reimbursement of expenses, and payment of indemnification to officers and directors and
customary payment of insurance premiums on behalf of officers and directors by the Obligors or their Subsidiaries, in each case, in the
ordinary course of business, (vi) is permitted pursuant to Section 9.05(i) or Section 9.06(d) or
(g), or (vii) are the transactions set forth on Schedule 7.19. Notwithstanding anything to the contrary in this Agreement,
no transaction shall be entered into between the Borrower and the BXCL 701 Subsidiary other than the provision of shared services by the
Borrower to the BXCL 701 Subsidiary on terms no less favorable to the Borrower than those that would be obtained in a comparable arm’s-length
transaction with a non-affiliated Person; provided, that notwithstanding the foregoing or anything to the contrary herein, nothing
herein shall prohibit the execution, delivery and performance of customary documentation (and customary amendments to existing documentation)
and customary transactions governing the relations between and among the equity owners of a BXCL 701 Subsidiary, a BXCL 701 Subsidiary
and an IPO Co., if applicable, in connection with a Qualifying IPO, including, without limitation, the execution, delivery and performance
of an amended and restated limited liability company operating agreement and tax receivable agreement, in each case, on customary terms
for similar “Up-C” transactions and such other customary transactions incidental to the foregoing as the board of directors
or equivalent body of such BXCL 701 Subsidiary shall determine, in its good faith judgment, to be necessary in order to effect such Qualifying
IPO.
9.12 Restrictive
Agreements. Such Obligor will not, and will not permit any of its Subsidiaries (in each case,
except for the BXCL 701 Subsidiaries following a Permitted BXCL 701 Release Event) to, directly or indirectly, enter into, incur or permit
to exist any Restrictive Agreement other than (i) restrictions and conditions imposed by applicable Laws or by the Loan Documents,
(ii) Restrictive Agreements listed on Schedule 7.15, (iii) limitations associated with Permitted Liens or any document
or instrument governing any Permitted Lien, (iv) any documentation governing Indebtedness referenced in clauses (l), (m) or
(o) of Section 9.01 (or any Permitted Refinancing thereof), (v) customary provisions in leases, Permitted
Licenses and other Contracts restricting the assignment thereof or restricting the assignment or sublease or sublicense of the property
leased, licensed or otherwise the subject thereof; (vi) any restrictions or conditions set forth in any agreement in effect at any
time any Person becomes a Subsidiary (but not any modification or amendment expanding the scope of any such restriction or condition);
provided that such agreement was not entered into in contemplation of such Person becoming a Subsidiary; (vii) restrictions
or conditions in any Indebtedness permitted pursuant to Section 9.01 that is incurred or assumed by Subsidiaries that are
not Obligors to the extent such restrictions or conditions are no more restrictive in any material respect than the restrictions and conditions
in the Loan Documents; (viii) restrictions or conditions imposed by any agreement relating to purchase money Indebtedness and other
secured Indebtedness or to leases and licenses permitted by this Agreement if such restrictions or conditions apply only to the property
or assets securing such Indebtedness or the property leased or licensed; (ix) customary provisions in contracts for the disposition
of any assets; provided that the restrictions in any such contract shall apply only to the assets or Subsidiary that is to be disposed
of and such disposition is permitted hereunder (or, in the case of the sale of Borrower, such agreement contemplates the repayment in
full of the Obligations hereunder); (x) customary provisions regarding confidentiality or restricting assignment, pledges or transfer
of any Permitted License or any other agreement entered into in the Ordinary Course; and (xi) customary net worth provisions or similar
financial maintenance provisions contained in any agreement entered into by a Subsidiary.
9.13 Modifications
and Terminations of Material Agreements and Organic Documents. Such Obligor will not, and will
not permit any of its Subsidiaries (in each case, except for the BXCL 701 Subsidiaries following a Permitted BXCL 701 Release Event) to:
(a) waive,
amend, terminate, replace or otherwise modify any term or provision of any Organic Document in any way or manner materially adverse to
the interests of the Administrative Agent and the Lenders; or
(b) waive,
amend, replace or otherwise modify any term or provision of any Permitted License in a manner materially adverse to the rights and remedies
the Administrative Agent and the Lenders hereunder; or
(c) (x) take
or omit to take any action that results in the termination of, or permits any other Person to terminate, any Material Agreement or Material
Intellectual Property or (y) take any action that permits any Material Agreement or Material Intellectual Property to be terminated
by any counterparty thereto prior to its stated date of expiration, in each such case if such action or omission would reasonably be expected,
individually or in the aggregate, to result in a Material Adverse Effect.
(d) enter
into, waive, terminate, replace or otherwise modify any joint venture agreement, distribution agreement, collaboration agreement or any
agreement similar to any of the foregoing, in each case, that involves the disposition, assignment or licensing of any Material Intellectual
Property, unless such agreement is (i) a Permitted License, (ii) permitted pursuant to Section 9.09 or (iii) approved
in writing by the Administrative Agent.
9.14 Outbound
Licenses. No Obligor shall, nor shall it permit any of its Subsidiaries (in each case, except
for the BXCL 701 Subsidiaries following a Permitted BXCL 701 Release Event) to, enter into or become or remain bound by any outbound license,
covenant not to sue or other grant of rights under Intellectual Property, except for Permitted Licenses.
9.15 Sales
and Leasebacks. Except as otherwise consented to in writing by the Administrative Agent in its
sole discretion, such Obligor will not, and will not permit any of its Subsidiaries (in each case, except for the BXCL 701 Subsidiaries
following a Permitted BXCL 701 Release Event) to, become liable, directly or indirectly, with respect to any lease, whether an operating
lease or a Capital Lease Obligation, of any property (whether real, personal, or mixed), whether now owned or hereafter acquired, (i) which
such Person has sold or transferred or is to sell or transfer to any other Person and (ii) which such Obligor or Subsidiary intends
to use for substantially the same purposes as property which has been or is to be sold or transferred.
9.16 Hazardous
Material. Such Obligor will not, and will not permit any of its Subsidiaries to, use, generate,
manufacture, install, treat, release, store or dispose of any Hazardous Material, except in compliance with all applicable Environmental
Laws or where the failure to comply would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse
Effect. If the Administrative Agent at any time has a reasonable basis to believe that there is any material violation by an Obligor of
any Environmental Law or the presence or release of any Hazardous Material which could result in an Environmental Liability that would
be reasonably expected to result in a Material Adverse Effect, each Obligor shall, and shall cause each Subsidiary to, (i) prepare
an environmental assessment of such condition, including where appropriate environmental testing, and the preparation of such environmental
report, at the Borrower’s sole cost and expense, as the Administrative Agent may reasonably request with respect to any affected
parcel of real property subject to a Collateral Document that is a mortgage, deed of trust or similar instrument, which shall be conducted
by Persons reasonably acceptable to the Administrative Agent and shall be in form and substance reasonably acceptable to the Administrative
Agent, and (ii) if such report is not delivered within thirty (30) days, permit the Administrative Agent or its representatives to
have access to all such real property for the purpose of conducting, at the Borrower’s sole cost and expense, such environmental
audits and testing as the Administrative Agent shall reasonably deem appropriate.
9.17 Accounting
Changes. Such Obligor will not, and will not permit any of its Subsidiaries to, make any significant
change in accounting treatment or reporting practices, except as required or permitted by GAAP.
9.18 Compliance
with ERISA. No ERISA Affiliate shall cause or suffer to exist (i) any event that could result
in the imposition of a Lien with respect to any Title IV Plan or Multiemployer Plan or (ii) any other ERISA Event that would, in
the aggregate, reasonably be expected to result in a Material Adverse Effect. No Obligor or any of its Subsidiaries shall cause or suffer
to exist any event that could result in the imposition of a Lien with respect to any Benefit Plan.
9.19 Sanctions;
Anti-Corruption Use of Proceeds.
(a) Neither
the Borrower or any of its Subsidiaries or their respective agents shall (i) conduct any business or engage in any transaction or
dealing with any Sanctioned Person, including the making or receiving any contribution of funds, goods or services to or for the benefit
of any Sanctioned Person; (ii) deal in, or otherwise engage in any transaction relating to, any property or interests in property
blocked pursuant to any Sanctions; or (iii) engage in or conspire to engage in any transaction that evades or avoids, or has the
purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in any Sanctions, the Patriot Act or any other
Anti-Terrorism Law.
(b) The
Borrower will not, directly or, to the knowledge of the Borrower, indirectly, use the proceeds of the Loans, or lend, contribute or otherwise
make available such proceeds to any subsidiary, joint venture partner or other Person, (i) in furtherance of an offer, payment, promise
to pay, or authorization of the payment or giving of money, or anything else of value, to any Person in violation of any applicable anti-corruption
Law, or (ii) (A) for the purpose of funding any activities or business of or with any Person, or in any country or territory,
that, at the time of such funding, is, or whose government is, the subject of country- or territory-wide Sanctions, in violation of Sanctions
or (B) in any manner that would result in a violation of Sanctions by any party to this Agreement.
9.20 BXCL
701 Subsidiary Covenants.
(a) Notwithstanding
anything to the contrary in this Agreement, the Borrower and its Subsidiaries shall not, and shall not permit any of its Subsidiaries
(in each case, except for the BXCL 701 Subsidiaries) to:
(i) make,
directly or indirectly, or permit to remain outstanding any Investments in the BXCL 701 Subsidiaries, except for (A) Investments
in the BXCL 701 Subsidiaries consisting of the Equity Interests owned by the Borrower on the Closing Date and described on Schedule
9.05, (B) the BXCL 701 Asset Contribution and (C) additional Investments in the BXCL 701 Subsidiaries made after the Closing
Date in an amount not to exceed $30,000,00030,865,000 outstanding at any time (provided that the amount of Investments permitted
to be made pursuant to this clause (C) shall be reduced by $0.50 for each $1.00 of cash proceeds received by the BXCL 701 Subsidiaries
in connection with a Permitted BXCL 701 Disposition Event; provided, that any reduction in such amount of permitted Investments
pursuant to the immediately preceding proviso shall apply solely on a prospective basis, and any Investments made in the BXCL 701 Subsidiaries
in compliance with this clause (C) prior to the date of such reduction shall be permitted regardless of whether, following such reduction,
such Investments are in excess of the amount permitted to be made pursuant to this clause (C));
(ii) make,
directly or indirectly, any Asset Sale (other than the BXCL 701 Asset Contribution) to the BXCL 701 Subsidiaries;
(iii) prior
to a Qualifying IPO, permit the BXCL 701 Subsidiaries to hold any interest in Material Intellectual Property other than any Intellectual
Property included in the BXCL 701 Assets or otherwise related to the oncology field;
(iv) enter
into any transaction of merger, amalgamation or consolidation (or otherwise merge, amalgamate or consolidate) with or into the BXCL 701
Subsidiaries; or
(v) dispose,
directly or indirectly, of any Equity Interests in the BXCL 701 Subsidiaries except pursuant to a Permitted BXCL 701 Disposition Event,
the Net Cash Proceeds of which are applied in accordance with Section 3.03(b)(i)(B) to the extent required to be so applied.
For the avoidance of doubt, any Permitted BXCL
701 Disposition Event, the issuance by any BXCL 701 Subsidiary of its Equity Interests in compliance with Section 9.09(l)(ii) or
9.09(o), and the transactions contemplated by the 701 Subsidiary Shared Services Agreement shall be permitted.
(b) Prior
to the consummation of a Permitted BXCL 701 Release Event, no BXCL 701 Subsidiary shall form or acquire any Subsidiary unless such newly
formed or acquired Subsidiary shall become an Obligor hereunder and remain an Obligor at all times prior to the consummation of a Permitted
BXCL 701 Release Event.
(c) Following
the consummation of a Permitted BXCL 701 Release Event, the Borrower and its Subsidiaries shall not, and shall not permit any of its Subsidiaries
(in each case, except for the BXCL 701 Subsidiaries) to, guarantee any indebtedness or other obligations, or otherwise provide any credit
support to, any BXCL 701 Subsidiary.
(d) The
Borrower and each BXCL 701 Subsidiary agrees to provide the Oaktree Lenders (or such Affiliate or managed fund or account of Oaktree Capital
Management, L.P. as the Oaktree Lenders designate) the opportunity to provide a first offer to provide the entire amount of each debt
financing or convertible debt financing (excluding any marketed convertible debt following a Qualifying IPO) of any BXCL 701 Subsidiary
(the “First Offer”); provided that, if after ten (10) Business Days of the Oaktree Lenders’
delivery of such First Offer, the Borrower or such BXCL 701 Subsidiary does not agree to the terms of the financing offered by the Oaktree
Lenders (or their designees) after good faith negotiations thereof, the Borrower or the applicable BXCL 701 Subsidiary may retain any
other Person to provide such financing on pricing and other terms more favorable (taken as a whole) to the applicable BXCL 701 Subsidiary
than those offered by the Oaktree Lenders (or their designees) as reasonably determined in good faith by the Borrower or the applicable
BXCL 701 Subsidiary. Notwithstanding anything to the contrary in this Agreement, the provisions of this Section 9.19(d) shall
not apply after the consummation of a Qualifying IPO.
SECTION 10.
FINANCIAL COVENANTS
10.01 Minimum
Liquidity. The Borrower shall, at all times after the Account Control Agreement Completion Date,
maintain the Minimum Liquidity Amount in cash or Permitted Cash Equivalent Investments in one or more Controlled Accounts that is free
and clear of all Liens, other than Liens granted hereunder in favor of the Administrative Agent and Liens permitted under Section 9.02(i) (such
covenant, the “Minimum Liquidity Covenant”).
10.02 Minimum
Revenue. Beginning with the fiscal quarter of the Borrower ending on December 31, 20232024
and with respect to each subsequent fiscal quarter, Revenue for the six (6) consecutive month period ending on the last day of such
fiscal quarter shall not be less than the Minimum Revenue for such period (such covenant, the “Minimum Revenue Covenant”).
For the avoidance of doubt, for purposes of the Minimum Revenue Covenant, Revenue shall only include Igalmi
U.S. product net revenues but exclude EUA contract revenues.
SECTION 11.
EVENTS OF DEFAULT
11.01 Events
of Default. Each of the following events shall constitute an “Event of Default”:
(a) Principal
Payment Default. The Borrower shall fail to pay any principal of the Loan, when and as the same shall become due and payable, whether
at the due date thereof, at a date fixed for prepayment thereof or otherwise.
(b) Other
Payment Defaults. Any Obligor shall fail to pay interest or any other Obligation (other than an amount referred to in Section 11.01(a))
when and as the same shall become due and payable, and such failure shall continue unremedied for a period of three (3) Business
Days.
(c) Representations
and Warranties. Any representation or warranty made or deemed made by or on behalf of any Obligor or any of its Subsidiaries in or
in connection with this Agreement or any other Loan Document or any amendment or modification hereof or thereof, or in any report, certificate,
financial statement or other document furnished pursuant to or in connection with this Agreement or any other Loan Document or any amendment
or modification hereof or thereof, shall: (i) prove to have been incorrect in any respect when made or deemed made to the extent
that such representation or warranty contains any materiality or Material Adverse Effect qualifier; or (ii) prove to have been incorrect
in any material respect when made or deemed made to the extent that such representation or warranty does not otherwise contain any materiality
or Material Adverse Effect qualifier.
(d) Certain
Covenants. Any Obligor shall fail to observe or perform any covenant, condition or agreement contained in (i) Section 8.02,
8.03 (with respect to the Borrower’s existence), 8.11, 8.15, 8.17, 8.18, Section 9 or
Section 10 or (i) any of the Company WarrantWarrants
or the 701 Warrants; provided that any Event of Default under Section 10.02 is subject to cure as provided in Sections
11.04 and an Event of Default with respect to such Section shall not occur until the expiration of the 15th Business Day subsequent
to the date on which the financial statements with respect to the applicable fiscal quarter (or the fiscal year ended on the last day
of such fiscal quarter) are required to be delivered pursuant to Section 8.01(a) or 8.01(b), as applicable.
(e) Other
Covenants. Any Obligor shall fail to observe or perform any covenant, condition or agreement contained in this Agreement (other than
those specified in Section 11.01(a), (b) or (d)) or any other Loan Document, and, in the case of any failure
that is capable of cure, such failure shall continue unremedied for a period of thirty (30) or more days; provided that any breach
of Section 8.01(b) as a result of any “going concern” or like qualification or exception or emphasis of matter
of going concern footnote is subject to a cure period of 120 days.
(f) Payment
Default on Other Indebtedness. Any Obligor or any of its Subsidiaries shall fail to make any payment (whether of principal or interest
and regardless of amount) in respect of any Material Indebtedness or the Revenue
Interest Financing, when and as the same shall become due and payable after giving effect to any applicable grace or
cure period as originally provided by the terms of such Indebtedness or the Revenue
Interest Financing.
(g) Other
Defaults on Other Indebtedness. (i) Any material breach of, or “event of default” or similar event under, any Contract
governing any Material Indebtedness, or a “Put Option Event”
or similar event under the Revenue Interest Financing, shall occur and such breach or “event of default” or
similar event shall continue unremedied, uncured or unwaived after the expiration of any grace or cure period thereunder, or (ii) any
event or condition occurs (x) that results in any Material Indebtedness becoming due prior to its scheduled maturity or (y) that
enables or permits (with or without the giving of notice, the lapse of time or both) the holder or holders of such Material Indebtedness
or Revenue Interest Financing or any trustee or agent on its or their behalf to cause
such Material Indebtedness or Revenue Interest Financing to become due, or to require
the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity or prior to the final date of its original
term; provided that this Section 11.01(g) shall not apply to (x) secured Indebtedness that becomes due as
a result of the voluntary sale or transfer of the property or assets securing such Material Indebtedness, (y) any conversion of any
convertible Indebtedness or satisfaction of any condition giving rise to or permitting a conversion of any convertible Indebtedness; provided
that the Borrower has the right to settle any such Indebtedness into Equity Interests of the Borrower (and nominal cash payments in respect
of fractional shares and cash payments in respect of accrued and unpaid interest) in accordance with the express terms or conditions thereof)
and (z) with respect to any Material Indebtedness consisting of Hedging Agreements, termination events or equivalent events pursuant
to the terms of such Hedging Agreements and not as a result of any default thereunder by any Obligor or any Subsidiary.
(h) Insolvency,
Bankruptcy, Etc.
(i) Any
Obligor or any of its Material Subsidiaries becomes insolvent, or generally does not or becomes unable to pay its debts or meet its liabilities
as the same become due, or admits in writing its inability to pay its debts generally, or declares any general moratorium on its indebtedness,
or proposes a compromise or arrangement or deed of company arrangement between it and any class of its creditors.
(ii) Any
Obligor or any of its Material Subsidiaries commits an act of bankruptcy or makes an assignment of its property for the general benefit
of its creditors or makes a proposal (or files a notice of its intention to do so).
(iii) Any
Obligor or any of its Material Subsidiaries institutes any proceeding seeking to adjudicate it an insolvent, or seeking liquidation, dissolution,
winding-up, reorganization, compromise, arrangement, adjustment, protection, moratorium, relief, stay of proceedings of creditors generally
(or any class of creditors), or composition of it or its debts or any other relief, under any Law, whether U.S. or non-U.S., now or hereafter
in effect relating to bankruptcy, winding-up, insolvency, reorganization, receivership, plans of arrangement or relief or protection of
debtors or at common law or in equity, or files an answer admitting the material allegations of a petition filed against it in any such
proceeding.
(iv) Any
Obligor or any of its Material Subsidiaries applies for the appointment of, or the taking of possession by, a receiver, interim receiver,
receiver/manager, sequestrator, conservator, custodian, administrator, trustee, liquidator, voluntary administrator, receiver and manager
or other similar official for it or any substantial part of its property.
(v) Any
Obligor or any of its Material Subsidiaries takes any action, corporate or otherwise, to approve, effect, consent to or authorize any
of the actions described in this Section 11.01(h), or otherwise acts in furtherance thereof or fails to act in a timely and
appropriate manner in defense thereof.
(vi) Any
petition is filed, application made or other proceeding instituted against or in respect of any Obligor or any of its Material Subsidiaries:
(A) seeking
to adjudicate it as insolvent;
(B) seeking
a receiving order against it;
(C) seeking
liquidation, dissolution, winding-up, reorganization, compromise, arrangement, adjustment, protection, moratorium, relief, stay of proceedings
of creditors generally (or any class of creditors), deed of company arrangement or composition of it or its debts or any other relief
under any Law, whether U.S. or non-U.S., now or hereafter in effect relating to bankruptcy, winding-up, insolvency, reorganization, receivership,
plans of arrangement or relief or protection of debtors or at common law or in equity; or
(D) seeking
the entry of an order for relief or the appointment of, or the taking of possession by, a receiver, interim receiver, receiver/manager,
sequestrator, conservator, custodian, administrator, trustee, liquidator, voluntary administrator, receiver and manager or other similar
official for it or any substantial part of its property, and such petition, application or proceeding continues undismissed, or unstayed
and in effect, for a period of forty-five (45) days after the institution thereof; provided that if an order, decree or judgment
is granted or entered (whether or not entered or subject to appeal) against such Obligor or such Subsidiary thereunder in the interim,
such grace period will cease to apply; provided, further, that if such Obligor or Material Subsidiary files an answer admitting
the material allegations of a petition filed against it in any such proceeding, such grace period will cease to apply.
(vii) Any
other event occurs which, under the Laws of any applicable jurisdiction, has an effect equivalent to any of the events referred to in
this Section 11.01(h).
(i) Judgments.
One or more judgments for the payment of money in an aggregate amount in excess of $15,000,000 (or the Equivalent Amount in other currencies)
(except to the extent fully covered (other than to the extent of customary deductibles) by insurance pursuant to which the insurer has
not denied coverage) shall be rendered against any Obligor or any of its Subsidiaries or any combination thereof and the same shall remain
undischarged for a period of forty-five (45) calendar days during which execution shall not be effectively stayed, or any action shall
be legally taken by a judgment creditor to attach or levy upon any assets of any Obligor to enforce any such judgment.
(j) ERISA.
An ERISA Event shall have occurred that when taken together with all other ERISA Events that have occurred, would reasonably be expected
to result in liability of the Borrower and its Subsidiaries in an aggregate amount in excess of $15,000,000 (or the Equivalent Amount
in other currencies).
(k) Change
of Control. A Change of Control shall have occurred.
(l) [Reserved].
(m) Regulatory
Matters, Etc. If any of the following occurs: (i) the FDA or any other U.S. Regulatory Authority initiates enforcement action
against, or issues a warning letter with respect to BXCL 501 that causes any Obligor to discontinue or withdraw, or would reasonably be
expected to cause any Obligor to discontinue or withdraw, marketing or sales BXCL 501, or causes a material delay in the manufacture or
sale of BXCL 501, which discontinuance or delay would reasonably be expected to last for more than ninety (90) days, (ii) an FDA
Class 1 Recall of BXCL 501 in the U.S., to the extent BXCL 501 has generated or is expected to generate at least $15,000,000 (or
the Equivalent Amount in other currencies) in revenue for the Borrower and its Subsidiaries for sales or licenses to third parties over
any period of twelve (12) consecutive months, or (iii) any Obligor enters into a settlement agreement with the FDA or any other U.S.
Regulatory Authority in respect of BXCL 501 that results in aggregate liability as to any single or related series of transactions, incidents
or conditions, in excess of $15,000,000 (or the Equivalent Amount in other currencies).
(n) [Reserved].
(o) Impairment
of Security, Etc. Subject in all respects to any applicable post-closing periods and certain other time periods under the Loan Documents
for any Obligor or Subsidiary to take perfection actions, if any of the following events occurs: (i) Any Lien created by any of the
Security Documents shall at any time not constitute a valid and perfected Lien on the applicable Collateral in favor of the Secured Parties,
free and clear of all other Liens (other than Permitted Liens) except due to the action or inaction of the Administrative Agent, (ii) except
for expiration in accordance with its terms, any of the Security Documents or any Guarantee of any of the Obligations (including that
contained in Section 13) shall for whatever reason cease to be in full force and effect, (iii) any Obligor shall, directly
or indirectly, contest in any manner such effectiveness, validity, binding nature or enforceability of any such Lien or any Loan Document,
or (iv) any injunction, whether temporary or permanent, shall be rendered against any Obligor that prevents the Obligors from selling
or manufacturing the Products or their commercially available successors, or any of their other material and commercially available products
in the United States for more than forty-five (45) calendar days.
11.02 Remedies.
(a) Defaults
Other Than Bankruptcy Defaults. Upon the occurrence of any Event of Default, then, and in every such event (other than an Event of
Default described in Section 11.01(h)), and at any time thereafter during the continuance of such event, the Administrative
Agent may (or upon the direction of the Majority Lenders, shall), by notice to the Borrower, declare the Loans then outstanding to be
due and payable in whole (or in part, in which case any principal not so declared to be due and payable may thereafter be declared to
be due and payable), and thereupon the principal of the Loans so declared to be due and payable, together with accrued interest thereon
and all fees and other Obligations, including any applicable Prepayment Fee shall become due and payable immediately (in the case of the
Loans, at the Prepayment Price therefor), without presentment, demand, protest or other notice of any kind, all of which are hereby waived
by each Obligor.
(b) Bankruptcy
Defaults. In case of an Event of Default described in Section 11.01(h), the principal of the Loans then outstanding, together
with accrued interest thereon and all fees and other Obligations, including any applicable Prepayment Fee shall automatically become due
and payable immediately (in the case of the Loans, at the Prepayment Price therefor), without presentment, demand, protest or other notice
of any kind, all of which are hereby waived by each Obligor.
11.03 Additional
Remedies. If an Event of Default has occurred and is continuing, if any Obligor shall be in
default under a Material Agreement, the Administrative Agent shall have the right (but not the obligation) to cause the default or defaults
under such Material Agreement to be remedied (including by paying any unpaid amount thereunder) and otherwise exercise any and all rights
of such Obligor, as the case may be, thereunder, as may be necessary to prevent or cure any default. Without limiting the foregoing,
upon any such default, each Obligor shall promptly execute, acknowledge and deliver to the Administrative Agent such instruments as may
reasonably be required of such Obligor to permit the Administrative Agent to cure any default under the applicable Material Agreement
or permit the Administrative Agent to take such other action required to enable the Administrative Agent to cure or remedy the matter
in default and preserve the interests of the Administrative Agent. Any amounts paid by the Administrative Agent pursuant to this Section 11.03
shall be payable in accordance with Section 14.03(a), shall accrue interest at the Default Rate if not paid when due,
and shall constitute “Obligations.”
11.04 Minimum
Revenue Covenant Cure.
(a) Notwithstanding
anything to the contrary contained in Section 11.02, in the event the Borrower fails to comply with the requirements of the
Minimum Revenue Covenant, during the period from the end of the relevant fiscal quarter until the expiration of the fifteenth Business
Day subsequent to the date the financial statements are required to be delivered pursuant to Section 8.01(a) or 8.01(b),
the Borrower shall have the right to make a Revenue Cure Payment (the “Minimum Revenue Cure Right”). Upon the
Administrative Agent’s receipt of the applicable Revenue Cure Payment, the Borrower shall then be in compliance with the requirements
of the Minimum Revenue Covenant and the Borrower shall be deemed to have satisfied the requirements of the Minimum Revenue Covenant as
of the relevant date of determination with the same effect as though there had been no failure to comply therewith at such date, and the
applicable breach of the Minimum Revenue Covenant and any related default that had occurred shall be deemed cured for the purposes of
this Agreement. Any Revenue Cure Payment shall be applied to the prepayment of the Loans, which shall include the Prepayment Fee.
(b) Upon
the Administrative Agent’s receipt of a notice from the Borrower that it intends to exercise the Minimum Revenue Cure Right (a “Notice
of Intent to Cure Revenue Covenant”), until the fifteenth Business Day subsequent to the date the financial statements are
required to be delivered pursuant to Section 8.01(a) or 8.01(b) to which such Notice of Intent to Cure Revenue
Covenant relates, no Lender shall be required to extend any credit pursuant to its Commitment during such period, and neither the Administrative
Agent nor any Lender shall exercise the right to accelerate payment of the Loans or terminate the Commitments and neither the Administrative
Agent nor any other Lender shall exercise any right to foreclose on or take possession of the Collateral solely on the basis of an allegation
of an Event of Default having occurred and being continuing under Section 10.02 due to failure by the Borrower to comply with the
requirements of the Minimum Revenue Covenant for the applicable period. If within such fifteen Business Day period, the Majority Lenders
decline the exercise by the Borrower of the Minimum Revenue Cure Right by written notice to the Administrative Agent and the Borrower
to that effect, then the Borrower shall be deemed to have satisfied the requirements of the Minimum Revenue Covenant as of the relevant
date of determination with the same effect as though there had been no failure to comply therewith at such date, and the applicable breach
of the Minimum Revenue Covenant and any related default that had occurred shall be deemed cured for the purposes of this Agreement.
(c) Notwithstanding
anything else in this Agreement, there shall be no more than three (3) fiscal quarters in which the cure rights set forth in this
Section 11.04 are exercised during the term of this Agreement.
11.05 Payment
of Prepayment Fee. Notwithstanding anything in this Agreement to the contrary, the Prepayment
Fee shall automatically be due and payable at any time the Obligations become due and payable prior to the Maturity Date in accordance
with the terms hereof as though such Indebtedness was voluntarily prepaid and shall constitute part of the Obligations, whether due to
acceleration pursuant to the terms of this Agreement (in which case it shall be due immediately, upon the giving of notice to Borrower
in accordance with Section 11.02(a), or automatically, in accordance with Section 11.02(b)), by operation of law
or otherwise (including on account of any bankruptcy filing), in view of the impracticability and extreme difficulty of ascertaining the
actual amount of damages to the Lenders or profits lost by the Lenders 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 Lenders as a result thereof. Any Prepayment
Fee payable pursuant to this Agreement shall be presumed to be the liquidated damages sustained by each Lender as the result of the early
termination, acceleration or prepayment and each Obligor agrees that such Prepayment Fee is reasonable under the circumstances currently
existing. The Prepayment Fee shall also become due and payable under this Agreement in the event the Obligations (and/or this Agreement)
are satisfied or released by foreclosure (whether by power of judicial proceeding), deed in lieu of foreclosure or by any other means
or the Obligations are reinstated pursuant to Section 1124 of the Bankruptcy Code. If the Prepayment Fee becomes due and payable
pursuant to this Agreement, the Prepayment Fee shall be deemed to be principal of the Loans and Obligations under this Agreement and interest
shall accrue on the full principal amount of the Loans (including the Prepayment Fee) from and after the applicable triggering event.
In the event the Prepayment Fee is determined not to be due and payable by order of any court of competent jurisdiction, including by
operation of the Bankruptcy Code, despite such a triggering event having occurred, the Prepayment Fee shall nonetheless constitute Obligations
under this Agreement for all purposes hereunder. EACH OBLIGOR 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 Obligors, the Administrative Agent and the Lenders acknowledge and agree that any Prepayment
Fee 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. Each Obligor 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. Each Obligor expressly agrees that (i) the
Prepayment Fee is reasonable and is the product of an arm’s-length transaction between sophisticated business people, ably represented
by counsel, (ii) the Prepayment Fee 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 Lenders and the Obligors giving specific consideration in this transaction for
such agreement to pay the Prepayment Fee, (iv) the Obligors shall be estopped hereafter from claiming differently than as agreed
to in this Section 11.05, (v) their agreement to pay the Prepayment Fee is a material inducement to the Lenders to make
the Loans, and (vi) the Prepayment Fee represents a good faith, reasonable estimate and calculation of the lost profits, losses or
other damages of the Lenders and that it would be impractical and extremely difficult to ascertain the actual amount of damages to the
Lenders or profits lost by the Lenders as a result of such event.
SECTION 12.
THE ADMINISTRATIVE AGENT
12.01 Appointment
and Duties. Subject in all cases to clause (c) below:
(a) Appointment
of the Administrative Agent. Each of the Lenders hereby irrevocably appoints Oaktree Fund Administration, LLC (together with any
successor Administrative Agent pursuant to Section 12.09) as the Administrative Agent hereunder and authorizes the Administrative
Agent to (i) execute and deliver the Loan Documents and accept delivery thereof on its behalf from any Obligor or any of its Subsidiaries,
(ii) take such action on its behalf and to exercise all rights, powers and remedies and perform the duties as are expressly delegated
to the Administrative Agent under such Loan Documents and (iii) exercise such powers as are reasonably incidental thereto. Except
as expressly set forth herein, the provisions of this Section 12 are solely for the benefit of the Administrative Agent and
the Lenders, and no Obligor or any Affiliate thereof shall have rights as a third-party beneficiary of any such provisions.
(b) Duties
as Collateral and Disbursing Agent. Without limiting the generality of Section 12.01(a), the Administrative Agent shall
have the sole and exclusive right and authority (to the exclusion of the Lenders), and is hereby authorized, to (i) act as the disbursing
and collecting agent for the Lenders with respect to all payments and collections arising in connection with the Loan Documents (including
in any proceeding described in Section 11.01(h) or any other bankruptcy, insolvency or similar proceeding), and each
Person making any payment in connection with any Loan Document to any Secured Party is hereby authorized to make such payment to the Administrative
Agent, (ii) file and prove claims and file other documents necessary or desirable to allow the claims of the Secured Parties with
respect to any Obligation in any proceeding described in Section 11.01(h) or any other bankruptcy, insolvency or similar
proceeding (but not to vote, consent or otherwise act on behalf of such Secured Party), (iii) act as collateral agent for each Secured
Party for purposes of acquiring, holding, enforcing and perfecting all Liens created by the Loan Documents and all other purposes stated
therein, (iv) manage, supervise and otherwise deal with the Collateral, (v) take such other action as is necessary or desirable
to maintain the perfection and priority of the Liens created or purported to be created by the Loan Documents, (vi) except as may
be otherwise specified in any Loan Document, exercise all remedies given to the Administrative Agent and the other Secured Parties with
respect to the Collateral, whether under the Loan Documents, applicable Laws or otherwise and (vii) execute any amendment, consent
or waiver under the Loan Documents on behalf of any Lender that has consented in writing to such amendment, consent or waiver; provided
that the Administrative Agent hereby appoints, authorizes and directs each Lender to act as collateral sub-agent for the Administrative
Agent and the Lenders for purposes of the perfection of all Liens with respect to the Collateral, including any deposit account maintained
by a Obligor with, and cash and cash equivalents held by, such Lender, and may further authorize and direct the Lenders 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 Lender hereby agrees to take such further actions to the extent, and only to the extent, so authorized and directed.
(c) Limited
Duties. The Lenders and the Obligors hereby each acknowledge and agree that the Administrative Agent (i) has undertaken its role
hereunder purely as an accommodation to the parties hereto and the Transactions, (ii) is receiving no compensation for undertaking
such role and (iii) subject only to the notice provisions set forth in Section 12.09, 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 Loan Documents, the Administrative Agent (i) is acting solely on behalf of the Lenders (except to the limited extent provided
in Section 12.11), 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 Loan 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 Loan Document other than as expressly set forth therein or any role as agent, fiduciary or trustee
of or for any Lender or any other Secured Party and (iii) shall have no implied functions, responsibilities, duties, obligations
or other liabilities under any Loan Document (fiduciary or otherwise), in each case, regardless of whether a Default has occurred and
is continuing, and each Lender hereby waives and agrees not to assert any claim against the Administrative Agent based on the roles, duties
and legal relationships expressly disclaimed in this clause (c). Without in any way limiting the foregoing, the Administrative
Agent shall not, except as expressly set forth in this Agreement and in the other Loan Documents, have any duty to disclose, and shall
not be liable for the failure to disclose, any information relating to any Obligor or any of its Affiliates that is communicated to or
obtained by the Person serving as the Administrative Agent or any of its Affiliates in any capacity.
12.02 Binding
Effect. Each Lender agrees that (i) any action taken by the Administrative Agent or the
Majority Lenders (or, if expressly required hereby, a greater proportion of the Lenders) in accordance with the provisions of the Loan
Documents, (ii) any action taken by the Administrative Agent in reliance upon the instructions of the Majority Lenders (or, where
so required, such greater proportion) and (iii) the exercise by the Administrative Agent or the Majority Lenders (or, where so required,
such greater proportion) 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.
12.03 Use
of Discretion.
(a) No
Action without Instructions. The Administrative Agent shall not be required to exercise any discretion or take, or to omit to take,
any action, including with respect to enforcement or collection, except (subject to clause (b) below) any action it is required
to take or omit to take (i) under any Loan Document or (ii) pursuant to written instructions from the Majority Lenders (or,
where expressly required by the terms of this Agreement, a greater proportion of the Lenders).
(b) Right
Not to Follow Certain Instructions. Notwithstanding Section 12.03(a) or any other term or provision of this Section 12,
the Administrative Agent shall not be required to take, or to omit to take, any action (i) unless, upon demand, the Administrative
Agent receives an indemnification satisfactory to it from the Lenders (or, to the extent applicable and acceptable to the Administrative
Agent, any other Secured Party) against all liabilities that, by reason of such action or omission, may be imposed on, incurred by or
asserted against the Administrative Agent or any Related Party thereof or (ii) that is, in the opinion of the Administrative Agent,
in its sole and absolute discretion, contrary to any Loan Document, Law or the best interests of the Administrative Agent or any of its
Affiliates or Related Parties, including, for the avoidance of doubt, any action that may be in violation of the automatic stay in connection
with any Insolvency Proceeding.
12.04 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 Loan 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 Related Parties. Any such Person and its Related Parties shall benefit from this Section 12 to the extent
provided by the Administrative Agent; provided, however, that the exculpatory provisions of this Section 12 shall apply to
any such sub-agent and to the Related Parties 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.
12.05 Reliance
and Liability.
(a) the
Administrative Agent may, without incurring any liability hereunder, (i) consult with any of its Related Parties and, whether or
not selected by it, any other advisors, accountants and other experts (including advisors to, and accountants and experts engaged by,
any Obligor) and (ii) rely and act upon any notice, request, certificate, consent, statement, instrument, document or other writing
(including and electronic message, Internet or intranet website posting or other distribution), telephone message or conversation
or oral conversation, in each case believed by it to be genuine and transmitted, signed or otherwise authenticated by the appropriate
parties. In determining compliance with any condition hereunder to the making of a Loan that by its terms must be fulfilled to the satisfaction
of a Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender unless the Administrative Agent shall
have received written notice to the contrary from such Lender prior to the making of such Loan.
(b) Neither
the Administrative Agent nor any of its Related Parties shall be liable for any action taken or omitted to be taken by any of them under
or in connection with any Loan Document, and each Lender and the Borrower hereby waive and shall not assert (and the Borrower shall cause
each other Obligor to waive and agree not to assert) any right, claim or cause of action based thereon, except to the extent of liabilities
resulting primarily from the fraudulent conduct or behavior of the Administrative Agent or, as the case may be, such Related Party (each
as determined in a final, non-appealable judgment or order by a court of competent jurisdiction) in connection with the duties expressly
set forth herein. Without limiting the foregoing, the Administrative Agent:
(i) shall
not be responsible or otherwise incur liability for any action or omission taken in reliance upon the instructions of, or with the consent
of, the Majority Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall
believe in good faith to be necessary, under the circumstances as provided in Section 14.03) or for the actions or omissions
of any of its Related Parties selected with reasonable care (other than employees, officers and directors of the Administrative Agent,
when acting on behalf of the Administrative Agent);
(ii) shall
not be responsible to any Secured Party for the (a) validity, enforceability, effectiveness or genuineness of this Agreement, any
other Loan Document or any other agreement, instrument or document, or (b) due execution, legality, validity, enforceability, effectiveness,
genuineness, sufficiency or value of, or the attachment, perfection or priority of any Lien created or purported to be created under or
in connection with, any Loan Document;
(iii) makes
no warranty or representation, and shall not be responsible, to any Secured Party for, and shall not have any duty to ascertain or inquire
into, any statement, document, information, certificate, report, representation or warranty made or furnished by or on behalf of any Related
Party, in or in connection with any Loan Document or any transaction contemplated therein, whether or not transmitted by the Administrative
Agent, including as to completeness, accuracy, scope or adequacy thereof, or for the scope, nature or results of any due diligence performed
by the Administrative Agent in connection with the Loan Documents, including, for the avoidance of doubt, the satisfaction of any condition
set forth in Section 6 of this Agreement or elsewhere herein (other than to confirm receipt of items expressly required to
be delivered to the Administrative Agent); and
(iv) shall
not have any duty to ascertain or to inquire as to the performance or observance of any provision of any Loan Document or whether any
condition set forth in any Loan Document is satisfied or waived, including, without limiting the generality of the foregoing, as to the
financial condition of any Obligor or as to the existence or continuation or possible occurrence or continuation of any Default or Event
of Default and shall not be deemed to have notice or knowledge of such occurrence or continuation unless it has received a notice from
the Borrower, any Lender describing such Default or Event of Default clearly labeled “notice of default” (in which case the
Administrative Agent shall promptly give notice of such receipt to all Lenders);
and, for each of the items set forth in clauses
(i) through (iv) above, each Lender and the Borrower hereby waives and agrees not to assert (and the Borrower shall
cause each other Obligor to waive and agree not to assert) any right, claim or cause of action it might have against the Administrative
Agent based thereon.
12.07 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, any Obligor or Affiliate thereof 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 Loan or otherwise becomes a Lender 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 Lender and the terms “Lender”, “Majority Lender”, and any
similar terms shall, except where otherwise expressly provided in any Loan Document, include the Administrative Agent or such Affiliate,
as the case may be, in its individual capacity as Lender or as one of the Majority Lenders, respectively.
12.08 Lender
Credit Decision. Each Lender acknowledges that it has, independently and without reliance upon
the Administrative Agent, any Lender or any of their Related Parties or upon any document solely or in part because such document was
transmitted by the Administrative Agent or any of its Related Parties, conducted its own independent investigation of the financial condition
and affairs of each Obligor 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 Loan Document or with respect to any transaction contemplated in any Loan Document, in each case based
on such documents and information as it shall deem appropriate.
12.09 Expenses;
Indemnities.
(a) Each
Lender agrees to reimburse the Administrative Agent and each of its Related Parties (to the extent not reimbursed by any Obligor) promptly
upon demand for such Lender’s Proportionate Share of any costs and expenses (including fees, charges and disbursements of financial,
legal (including charges and disbursements of Sullivan & Cromwell LLP and Hogan Lovells US LLP) and other advisors and Other
Taxes paid in the name of, or on behalf of, any Obligor) that may be incurred by the Administrative Agent or any of its Related Parties
in connection with the preparation, syndication, execution, delivery, administration, modification, consent, waiver or enforcement (whether
through negotiations, through any work-out, bankruptcy, restructuring or other legal or other proceeding or otherwise) of, or legal advice
in respect of its rights or responsibilities under, any Loan Document.
(b) Each
Lender further agrees to indemnify the Administrative Agent (or any sub-agent thereof) and any Related Parties of the Administrative Agent
(or any such sub-agent) (to the extent not indefeasibly paid by any Obligor), from and against such Lender’s aggregate Proportionate
Share of the liabilities (including Taxes, interests and penalties imposed for not properly withholding or backup withholding on payments
made to on or for the account of any Lender) that may be imposed on, incurred by or asserted against the Administrative Agent (or any
sub-agent thereof) or any Related Parties of the Administrative Agent (or any such sub-agent) in any matter relating to or arising out
of, in connection with or as a result of any Loan Document or any other act, event or transaction related, contemplated in or attendant
to any such document, or, in each case, any action taken or omitted to be taken by the Administrative Agent (or any sub-agent thereof)
or any Related Parties of the Administrative Agent (or any such sub-agent) under or with respect to any of the foregoing; provided
that no Lender shall be liable to the Administrative Agent (or any sub-agent thereof) or any Related Parties of the Administrative Agent
(or any such sub-agent) to the extent such liability has resulted primarily from the gross negligence or willful misconduct of the Administrative
Agent (or any sub-agent thereof) or, as the case may be, such Related Party of the Administrative Agent (or any sub-agent thereof), as
determined by a court of competent jurisdiction in a final non-appealable judgment or order.
12.10 Resignation
of the Administrative Agent.
(a) At
any time upon not less than 30 days prior written notice, the Administrative Agent may resign as the “the Administrative Agent”
hereunder, in whole or in part (in the sole and absolute discretion of the Administrative Agent). If the Administrative Agent delivers
any such notice, the Majority Lenders shall have the right, in consultation with the Borrower, to appoint a successor, which shall be
(i) a Lender holding at least thirty percent (30%) of the outstanding principal amount of the Loans or any Affiliate thereof or (ii) any
other financial institution consented to by the Borrower (provided that the consent of the Borrower shall not be required to the extent
an Event of Default 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 Lenders) (the “Resignation
Effective Date”), then the resigning Administrative Agent may (but shall not be obligated to), on behalf of the Lenders,
appoint any Person reasonably chosen by it as the successor Administrative Agent, notwithstanding whether the Majority Lenders have appointed
a successor or the Borrower has consented to such successor. Whether or not a successor has been appointed, such resignation shall become
effective on the Resignation Effective Date.
(b) Effective
from the Resignation Effective Date, (i) the resigning Administrative Agent shall be discharged from its duties and obligations under
the Loan Documents to the extent set forth in the applicable resignation notice, (ii) the Lenders shall assume and perform all of
the duties of the Administrative Agent until a successor Administrative Agent shall have accepted a valid appointment hereunder, (iii) the
resigning Administrative Agent and its Related Parties shall no longer have the benefit of any provision of any Loan Document other than
with respect to (x) any actions taken or omitted to be taken while such resigning Administrative Agent was, or because the Administrative
Agent had been, validly acting as the Administrative Agent under the Loan Documents or (y) any continuing duties such resigning Administrative
Agent will continue to perform, and (iv) subject to its rights under Section 12.04, the resigning Administrative Agent
shall take such action as may be reasonably necessary to assign to the successor Administrative Agent its rights as the Administrative
Agent under the Loan Documents. Effective immediately upon its acceptance of a valid appointment as the Administrative Agent, a successor
Administrative Agent shall succeed to, and become vested with, all the rights, powers, privileges and duties of the resigning Administrative
Agent under the Loan Documents.
12.11 Release
of Collateral or Guarantors. Each Lender hereby consents to the release and hereby directs the
Administrative Agent to release, and the Administrative Agent hereby agrees, (or, in the case of Section 12.10(b), release
or subordinate) the following:
(a) any
Subsidiary of the Borrower from its guaranty of any Obligation of any Obligor (i) if all of the Equity Interests in such Subsidiary
owned by any Obligor or any of its Subsidiaries are disposed of in an Asset Sale permitted under the Loan Documents (including pursuant
to a waiver or consent), to the extent that, after giving effect to such Asset Sale, such Subsidiary would not be required to guaranty
any Obligations pursuant to Section 8.11(a) and (ii) upon (x) termination of the Commitments and (y) payment
and satisfaction in full of all Loans and all other Obligations that the Administrative Agent has been notified in writing are then due
and payable (other than inchoate indemnification and expense reimbursement obligations for which no claim has been made);
(b) any
Lien held by the Administrative Agent for the benefit of the Secured Parties against (i) any Collateral that is disposed of by an
Obligor in an Asset Sale permitted by the Loan Documents (including pursuant to a valid waiver or consent), (ii) any property subject
to a Lien described in Section 9.02(c) and (iii) all of the Collateral and all Obligors, upon (x) termination
of the Commitments and (y) payment and satisfaction in full of all Loans and all other Obligations that the Administrative Agent
has been notified in writing are then due and payable (other than inchoate indemnification and expense reimbursement obligations for which
no claim has been made); and
(c) any
guaranty of any Obligation by any BXCL 701 Subsidiary on the BXCL 701 Release Date.
Each Lender hereby directs the Administrative
Agent, and the Administrative Agent hereby agrees, upon receipt of reasonable advance notice from the Borrower, to execute and deliver
or file such documents and to perform other actions reasonably necessary to release the guarantees and Liens when and as directed in this
Section 12.10 and deliver to the Borrower, at the expense of the Borrower, any portion of such Collateral so released pursuant
to this Section 12.10 that is in possession of the Administrative Agent. In addition, in connection with any Permitted Licenses,
each Lender hereby authorizes Administrative Agent to, and at the request of the Borrower, the Administrative Agent shall, negotiate and
enter into a non-disturbance agreement and other similar agreements in form and substance reasonably satisfactory to Administrative Agent.
12.12 Additional
Secured Parties. The benefit of the provisions of the Loan 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 Lender 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 Section 12 and the decisions and actions of the Administrative Agent and the Majority Lenders
(or, where expressly required by the terms of this Agreement, a greater proportion of the Lenders) to the same extent a Lender is bound;
provided that, notwithstanding the foregoing, (i) such Secured Party shall be bound by Section 12.08 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 Lender 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 Loan Document.
12.13 Agent
May File Proofs of Claim. In case of the pendency of any Insolvency Proceeding or any other
judicial proceeding relating to any Obligor, the Administrative Agent (irrespective of whether the principal of any Loan 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 Borrower or any other Obligor) shall be entitled and empowered (but not obligated) by intervention or such proceeding
or otherwise:
(a) to
file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations
that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders
and the Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Lenders
and the Administrative Agent and their respective agents and counsel and all other amounts due the Lenders and the Administrative Agent
under Section 14.03) allowed in such judicial proceeding; and
(b) to
collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender 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
Lenders, 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, and any other amounts due to the Administrative Agent under Section 14.03.
12.14 Acknowledgements
of Lenders.
(a) If
the Administrative Agent notifies a Lender, or any Person who has received funds on behalf of a Lender (any such Lender or other recipient,
a “Payment Recipient”), that the Administrative Agent has determined in its reasonable discretion (whether or
not after receipt of any notice under immediately succeeding clause (b)) that any funds received by such Payment Recipient from
the Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by,
such Payment Recipient (whether or not known to such Lender or other Payment Recipient on its behalf) (any such funds, whether received
as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous
Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Erroneous Payment shall at all times
remain the property of the Administrative Agent, and such Lender shall (or, with respect to any Payment Recipient who received such funds
on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than five Qatari Business Days thereafter, return
to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same
day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous
Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same
day funds at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation from time to time in effect. A notice of the Administrative Agent to any Payment Recipient
under this clause (a) shall be conclusive, absent manifest error. Notwithstanding the foregoing, without limiting any other
rights or remedies (whether at law or in equity), the Administrative Agent may not make any demand under this clause (a) with respect
to an Erroneous Payment unless such demand is made within 5 Business Days of the date of receipt of such Erroneous Payment by the applicable
Payment Recipient.
(b) Without
limiting immediately preceding clause (a), each Lender, or any Person who has received funds on behalf of a Lender, hereby further
agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest,
fees, distribution or otherwise) from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than,
or on a different date from, that specified in a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of
its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment,
prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Lender or other such recipient
otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part) in each case: (i) (A) in
the case of immediately preceding clauses (x) or (y), an error shall be presumed to have been made (absent written confirmation
from the Administrative Agent to the contrary) or (B) an error has been made (in the case of immediately preceding clause (z)),
in each case, with respect to such payment, prepayment or repayment; and (ii) such Lender shall (and shall cause any other recipient
that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of such error)
use commercially reasonable efforts to notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details
thereof (in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this Section 12.13(b)(ii).
(c) Each
Lender hereby authorizes the Administrative Agent to set off, net and apply any and all amounts at any time owing to such Lender under
any Loan Document, or otherwise payable or distributable by the Administrative Agent to such Lender from any source, against any amount
due to the Administrative Agent under immediately preceding clause (a) or under the indemnification provisions of this Agreement.
(d) In
the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor
by the Administrative Agent in accordance with immediately preceding clause (a), from any Lender that has received such Erroneous
Payment (or portion thereof) (and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective
behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s
notice to such Lender at any time, (i) such Lender shall be deemed to have assigned its Loans (but not its Commitments) with respect
to which such Erroneous Payment was made (the “Erroneous Payment Impacted Loans”) in an amount equal to the
Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but
not Commitments) of the Erroneous Payment Impacted Loans, the “Erroneous Payment Deficiency Assignment”) at
par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance), and is hereby
(together with the Borrower) deemed to execute and deliver an Assignment and Assumption with respect to such Erroneous Payment Deficiency
Assignment, and such Lender shall deliver any Notes evidencing such Loans to the Borrower or the Administrative Agent, (ii) the Administrative
Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment, (iii) upon such deemed acquisition,
the Administrative Agent as the assignee Lender shall become a Lender, as applicable, hereunder with respect to such Erroneous Payment
Deficiency Assignment and the assigning Lender shall cease to be a Lender 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 its Commitments
which shall survive as to such assigning Lender and (iv) the Administrative Agent may reflect in the Register its ownership interest
in the Loans subject to the Erroneous Payment Deficiency Assignment. The Administrative Agent may, in its discretion, sell any Loans 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 Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative
Agent shall retain all other rights, remedies and claims against such Lender (and/or against any recipient that receives funds on its
respective behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and
such Commitments shall remain available in accordance with the terms of this Agreement. In addition, each party hereto agrees that, except
to the extent that the Administrative Agent has sold a Loan (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 Lender under the Loan Documents with respect to each Erroneous Payment Return
Deficiency.
(e) The
parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the
Borrower or any other Obligor, except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of
such Erroneous Payment that is, comprised of funds received by the Administrative Agent from the Borrower or any other Obligor for the
purpose of making such Erroneous Payment.
(f) To
the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives,
and is deemed to waive, any claim, 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 waiver of any defense based on “discharge
for value” or any similar doctrine.
(g) Each
party’s obligations, agreements and waivers under this Section 12.13 shall survive the resignation or replacement of
the Administrative Agent, any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments
and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.
SECTION 13.
GUARANTY
13.01 The
Guaranty. The Subsidiary Guarantors hereby unconditionally jointly and severally guarantee to
the Administrative Agent and the Lenders, and their successors and assigns, the full and punctual payment in full or performance (whether
at stated maturity, by acceleration or otherwise) of the Obligations, including (i) principal of and interest on the Loans, (ii) all
fees and other amounts and Obligations from time to time owing to the Administrative Agent and the Lenders by the Borrower and each other
Obligor under this Agreement or under any other Loan Document, in each case strictly in accordance with the terms hereof and thereof and
(iii) the punctual and faithful performance, keeping, observance and fulfillment by the Borrower and Subsidiary Guarantors of all
the agreements, conditions, covenants and obligations of the Borrower and Subsidiary Guarantors contained in the Loan Documents (such
obligations being herein collectively called the “Guaranteed Obligations”). The Subsidiary Guarantors hereby
further jointly and severally agree that if the Borrower or any other Obligor shall fail to pay any amount in full when due or perform
any such obligation (whether at stated maturity, by acceleration or otherwise), the Subsidiary Guarantors will promptly pay the same or
perform such obligation at the place and in the manner specified herein or in the relevant Loan Document, as the case may be, without
any demand or notice whatsoever, and that in the case of any extension of time of payment or performance or renewal of any of the Guaranteed
Obligations, the same will be promptly paid in full or performed when due (whether at extended maturity, by acceleration or otherwise)
in accordance with the terms of such extension or renewal.
13.02 Obligations
Unconditional. The obligations of the Subsidiary Guarantors under Section 13.01 shall
constitute a guaranty of payment and performance and not of collection and are absolute and unconditional, joint and several, irrespective
of the value, genuineness, validity, regularity or enforceability of the Guaranteed Obligations under this Agreement or any other agreement
or instrument referred to herein, or any substitution, release or exchange of any other guarantee of or security for any of the Guaranteed
Obligations, and, to the fullest extent permitted by all applicable Laws, irrespective of any other circumstance whatsoever that might
otherwise constitute a legal or equitable discharge or defense of a surety or guarantor, it being the intent of this Section 13.02
that the obligations of the Subsidiary Guarantors hereunder shall be absolute and unconditional, joint and several, under any and
all circumstances. Without limiting the generality of the foregoing, it is agreed that the occurrence of any one or more of the following
shall not alter or impair the liability of the Subsidiary Guarantors hereunder, which shall remain absolute and unconditional as described
above:
(a) at
any time or from time to time, without notice to the Subsidiary Guarantors, the time for any performance of or compliance with any of
the Guaranteed Obligations shall be extended, or such performance or compliance shall be waived;
(b) any
of the acts mentioned in any of the provisions of this Agreement or any other agreement or instrument referred to herein shall be done
or omitted;
(c) the
maturity of any of the Guaranteed Obligations shall be accelerated, or any of the Guaranteed Obligations shall be extended, modified,
supplemented or amended in any respect, or any right under this Agreement or any other agreement or instrument referred to herein shall
be waived or any other guarantee of any of the Guaranteed Obligations or any security therefor shall be released or exchanged in whole
or in part or otherwise dealt with;
(d) any
lien or security interest granted to, or in favor of, the Secured Parties as security for any of the Guaranteed Obligations shall fail
to be perfected or preserved;
(e) any
modification or amendment of or supplement to this Agreement or any other Loan Document, including any such amendment which may increase
the amount of, or the interest rates applicable to, any of the Guaranteed Obligations guaranteed hereby;
(f) any
change in the corporate, partnership, limited liability company or other existence, structure or ownership of the Borrower, any Subsidiary
Guarantor or any other guarantor of any of the Guaranteed Obligations, or any Insolvency Proceeding or other similar proceeding affecting
the Borrower, any Subsidiary Guarantor or any other guarantor of the Guaranteed Obligations, or any of their respective assets, or any
resulting release or discharge of any obligation of the Borrower, any Subsidiary Guarantor or any other guarantor of any of the Guaranteed
Obligations;
(g) the
existence of any claim, setoff or other rights which any Subsidiary Guarantor may have at any time against the Borrower, any other Subsidiary
Guarantor or any other guarantor of any of the Guaranteed Obligations, the Administrative Agent, any Secured Party or any other Person,
whether in connection herewith or in connection with any unrelated transactions; provided that, notwithstanding any other provisions
in this Guaranty, nothing in this Guaranty shall prevent the assertion of any such claim by separate suit or compulsory counterclaim;
(h) the
unenforceability or invalidity of the Guaranteed Obligations or any part thereof or the lack of genuineness, enforceability or validity
of any agreement relating thereto or with respect to the collateral, if any, securing the Guaranteed Obligations or any part thereof,
or any other invalidity or unenforceability relating to or against the Borrower, any Subsidiary Guarantor or any other guarantor of any
of the Guaranteed Obligations, for any reason, related to this Agreement or any other Loan Document, or any provision of applicable Law,
decree, order or regulation of any jurisdiction purporting to prohibit the payment of any of the Guaranteed Obligations by the Borrower,
any Subsidiary Guarantor or any other guarantor of the Guaranteed Obligations;
(i) the
disallowance, under any state or federal bankruptcy, insolvency or similar law, of all or any portion of the claims of the Secured Parties
or the Administrative Agent for repayment of all or any part of the Guaranteed Obligations;
(j) the
failure of any other guarantor to sign or become party to this Agreement or any amendment, change, or reaffirmation hereof;
(k) any
release, surrender, compromise, settlement, waiver, subordination or modification, with or without consideration, of any collateral securing
the Guaranteed Obligations or any part thereof, any other guaranties with respect to the Guaranteed Obligations or any part thereof, or
any other obligation of any person or entity with respect to the Guaranteed Obligations or any part thereof, or any nonperfection or invalidity
of any direct or indirect security for the Guaranteed Obligations; or
(l) any
other act or omission to act or delay of any kind by the Borrower, such Guarantor, any other guarantor of the Guaranteed Obligations,
the Administrative Agent, any Secured Party or any other Person or any other circumstance whatsoever which might, but for the provisions
of this Section 13.02 constitute a legal or equitable discharge of any Guarantor’s obligations hereunder.
The Subsidiary Guarantors
hereby expressly waive diligence, presentment, demand of payment, protest and all notices whatsoever, and any requirement that the Administrative
Agent or any Lender exhaust any right, power or remedy or proceed against the Borrower or any other Subsidiary Guarantor under this Agreement
or any other agreement or instrument referred to herein, or against any other Person under any other guarantee of, or security for, any
of the Guaranteed Obligations.
13.03 Discharge
Only Upon Payment in Full. Subject to any prior release herefrom of any Subsidiary Guarantor
by the Administrative Agent in accordance with (and pursuant to authority granted to the Administrative Agent under) the terms of this
Agreement, each Subsidiary Guarantor’s obligations hereunder shall remain in full force and effect until all of the Guaranteed Obligations
shall have been indefeasibly paid in full in cash (other than inchoate indemnification and expense reimbursement obligations for which
no claim has been made) and all other financing arrangements among the Borrower or any Subsidiary Guarantor and the Secured Parties under
or in connection with this Agreement and each other Loan Document shall have terminated (herein, the “Termination Conditions”),
and until the prior and complete satisfaction of the Termination Conditions all of the rights and remedies under this Guaranty and the
other Loan Documents shall survive. Notwithstanding the foregoing, the Administrative Agent hereby agrees to release any Subsidiary of
the Borrower from its guaranty of any Obligation of any Obligor if all of the Equity Interests in such Subsidiary owned by any Obligor
or any of its Subsidiaries are disposed of in an Asset Sale permitted under the Loan Documents (including pursuant to a waiver or consent),
to the extent that, after giving effect to such Asset Sale, such Subsidiary would not be required to guarantee any Obligations pursuant
to Section 8.11(a).
13.04 Additional
Waivers; General Waivers.
(a) Additional
Waivers. Notwithstanding anything herein to the contrary, each of the Subsidiary Guarantors hereby absolutely, unconditionally, knowingly,
and expressly waives:
(i) any
right it may have to revoke this Guaranty as to future indebtedness or notice of acceptance hereof;
(ii) (A) notice
of acceptance hereof; (B) notice of any other financial accommodations made or maintained under the Loan Documents or the creation
or existence of any Guaranteed Obligations; (C) notice of the amount of the Guaranteed Obligations, subject, however, to each Subsidiary
Guarantor’s right to make inquiry of the Administrative Agent and the Secured Parties to ascertain the amount of the Guaranteed
Obligations at any reasonable time; (D) notice of any adverse change in the financial condition of the Borrower or of any other fact
that might increase such Subsidiary Guarantor’s risk hereunder; (E) notice of presentment for payment, demand, protest, and
notice thereof as to any instruments among the Loan Documents; (F) notice of any Event of Default; and (G) all other notices
(except if such notice is specifically required to be given to such Subsidiary Guarantor under this Guaranty or under the other Loan Documents)
and demands to which each Subsidiary Guarantor might otherwise be entitled;
(iii) its
right, if any, to require the Administrative Agent and the Secured Parties to institute suit against, or to exhaust any rights and remedies
which the Administrative Agent and the Secured Parties now have or may hereafter have against, any other guarantor of the Guaranteed Obligations
or any third party, or against any collateral provided by such other guarantors or any third party; and each Subsidiary Guarantor further
waives any defense arising by reason of any disability or other defense (other than the defense that the Guaranteed Obligations shall
have been fully and finally performed and indefeasibly paid) of any other guarantor of the Guaranteed Obligations or by reason of the
cessation from any cause whatsoever of the liability of any other guarantor of the Guaranteed Obligations in respect thereof;
(iv) (A) any
rights to assert against the Administrative Agent and the Secured Parties any defense (legal or equitable), set-off, counterclaim, or
claim which such Subsidiary Guarantor may now or at any time hereafter have against any other guarantor of the Guaranteed Obligations
or any third party liable to the Administrative Agent and the Secured Parties; (B) any defense, set-off, counterclaim or claim, of
any kind or nature, arising directly or indirectly from the present or future lack of perfection, sufficiency, validity or enforceability
of the Guaranteed Obligations or any security therefor; (C) any defense such Subsidiary Guarantor has to performance hereunder, and
any right such Subsidiary Guarantor has to be exonerated, arising by reason of: (1) the impairment or suspension of the Administrative
Agent’s and the Secured Parties’ rights or remedies against any other guarantor of the Guaranteed Obligations; (2) the
alteration by the Administrative Agent and the Secured Parties of the Guaranteed Obligations; (3) any discharge of the obligations
of any other guarantor of the Guaranteed Obligations to the Administrative Agent and the Secured Parties by operation of law as a result
of the Administrative Agent’s and the Secured Parties’ intervention or omission; or (4) the acceptance by the Administrative
Agent and the Secured Parties of anything in partial satisfaction of the Guaranteed Obligations; and (D) the benefit of any statute
of limitations affecting such Subsidiary Guarantor’s liability hereunder or the enforcement thereof, and any act which shall defer
or delay the operation of any statute of limitations applicable to the Guaranteed Obligations shall similarly operate to defer or delay
the operation of such statute of limitations applicable to such Subsidiary Guarantor’s liability hereunder; and
(v) any
defense arising by reason of or deriving from (A) any claim or defense based upon an election of remedies by the Administrative Agent
and the other Secured Parties; or (B) any election by the Administrative Agent and the other Secured Parties under any provision
of any state or federal bankruptcy, insolvency or similar law to limit the amount of, or any collateral securing, its claim against the
Subsidiary Guarantors.
(b) General
Waivers. Each Subsidiary Guarantor irrevocably waives, to the fullest extent permitted by law, any notice not provided for herein.
13.05 Reinstatement.
The obligations of the Subsidiary Guarantors under this Section 13 shall be automatically reinstated if and to the extent
that for any reason any payment by or on behalf of the Borrower in respect of the Guaranteed Obligations is at any time rescinded, annulled,
avoided, set aside, invalidated, declared to be fraudulent or must be otherwise restored or repaid by any holder of any of the Guaranteed
Obligations, whether as a result of any proceedings in bankruptcy or reorganization, equitable cause or otherwise, and the Subsidiary
Guarantors jointly and severally agree that they will indemnify the Secured Parties on demand for all reasonable costs and expenses (including
fees of counsel) incurred by such Persons in connection with such rescission, repayment or restoration, including any such costs and expenses
incurred in defending against any claim alleging that such payment constituted a preference, fraudulent transfer or similar payment under
any state or federal bankruptcy, insolvency or similar law. The provisions of this Section 13.05 shall survive termination
of this Guaranty.
13.06 Subrogation.
The Subsidiary Guarantors hereby jointly and severally agree that, until the prior and complete satisfaction of all Termination Conditions,
they (i) shall have no right of subrogation with respect to the Guaranteed Obligations and (ii) waive any right to enforce any
remedy which the Secured Parties or the Administrative Agent now have or may hereafter have against the Borrower, any endorser or any
other guarantor of all or any part of the Guaranteed Obligations or any other Person, and each Subsidiary Guarantor waives any benefit
of, and any right to participate in, any security or collateral that may from time to time be given to the Secured Parties and the Administrative
Agent to secure the payment or performance of all or any part of the Guaranteed Obligations or any other liability of the Borrower to
the Secured Parties. Should any Subsidiary Guarantor have the right, notwithstanding the foregoing, to exercise its subrogation rights
prior to complete satisfaction of the Termination Conditions, each Subsidiary Guarantor hereby expressly and irrevocably (A) subordinates
any and all rights at law or in equity to subrogation, reimbursement, exoneration, contribution, indemnification or set-off that such
Subsidiary Guarantor may have prior to the complete satisfaction of the Termination Conditions, and (B) waives any and all defenses
available to a surety, guarantor or accommodation co-obligor until all Termination Conditions are satisfied in full. Each Subsidiary Guarantor
acknowledges and agrees that this subordination is intended to benefit the Administrative Agent and the Secured Parties and shall not
limit or otherwise affect such Subsidiary Guarantor’s liability hereunder or the enforceability of this Guaranty, and that the Administrative
Agent, the Secured Parties and their respective successors and assigns are intended third party beneficiaries of the waivers and agreements
set forth in this Section 13.06.
13.07 Remedies.
The Subsidiary Guarantors jointly and severally agree that, as between the Subsidiary Guarantors, on one hand, and the Administrative
Agent and the Lenders, on the other hand, the obligations of the Borrower under this Agreement and under the other Loan Documents may
be declared to be forthwith due and payable as provided in Section 11 (and shall be deemed to have become automatically due
and payable in the circumstances provided in Section 11) for purposes of Section 13.01 notwithstanding any stay,
injunction or other prohibition, including any such stay upon an Insolvency Proceeding, preventing such declaration (or such obligations
from becoming automatically due and payable) as against the Borrower and that, in the event of such declaration (or such obligations being
deemed to have become automatically due and payable), such obligations (whether or not due and payable by the Borrower) shall forthwith
become due and payable by the Subsidiary Guarantors for purposes of Section 13.01.
13.08 Instrument
for the Payment of Money. Each Subsidiary Guarantor hereby acknowledges that the guarantee in
this Section 13 constitutes an instrument for the payment of money, and consents and agrees that the Administrative Agent
and the Lenders, at their sole option, in the event of a dispute by such Subsidiary Guarantor in the payment of any moneys due hereunder,
shall have the right to proceed by motion for summary judgment in lieu of complaint pursuant to N.Y. Civ. Prac. L&R § 3213.
13.09 Continuing
Guarantee. The guarantee in this Section 13 is a continuing guarantee, and shall
apply to all Guaranteed Obligations whenever arising.
13.10 Contribution
with Respect to Guaranteed Obligations.
(a) To
the extent that any Subsidiary Guarantor shall make a payment under this Guaranty (a “Guarantor Payment”) which,
taking into account all other Guarantor Payments then previously or concurrently made by any other Subsidiary Guarantor, exceeds the amount
which otherwise would have been paid by or attributable to such Subsidiary Guarantor if each Subsidiary Guarantor had paid the aggregate
Guaranteed Obligations satisfied by such Guarantor Payment in the same proportion as such Subsidiary Guarantor’s “Allocable
Amount” (as defined below) (as determined immediately prior to such Guarantor Payment) bore to the aggregate Allocable Amounts of
each of the Subsidiary Guarantors as determined immediately prior to the making of such Guarantor Payment, then, following the
prior and complete satisfaction of the Termination Conditions, such Subsidiary Guarantor shall be entitled to receive contribution and
indemnification payments from, and be reimbursed by, each other Subsidiary Guarantor for the amount of such excess, pro rata based
upon their respective Allocable Amounts in effect immediately prior to such Guarantor Payment.
(b) As
of any date of determination, the “Allocable Amount” of any Subsidiary Guarantor shall be equal to the maximum
amount of the claim which could then be recovered from such Subsidiary Guarantor under this Agreement without rendering such claim voidable
or avoidable under any state or federal bankruptcy, insolvency or similar law or other applicable Law.
(c) This
Section 13.10 is intended only to define the relative rights of the Subsidiary Guarantors, and nothing set forth in this Section 13.10
is intended to or shall impair the obligations of the Subsidiary Guarantors, jointly and severally, to pay any amounts as and when
the same shall become due and payable in accordance with the terms of this Agreement.
(d) The
parties hereto acknowledge that the rights of contribution and indemnification hereunder shall constitute assets of the Subsidiary Guarantor
or Subsidiary Guarantors to which such contribution and indemnification is owing.
(e) The
rights of the indemnifying Subsidiary Guarantors against other Subsidiary Guarantors under this Section 13.10 shall be exercisable
only upon the prior and complete satisfaction of the Termination Conditions.
13.11 General
Limitation on Guarantee Obligations. In any action or proceeding involving any provincial, territorial
or state corporate law, or any state or federal bankruptcy, insolvency, reorganization or other law affecting the rights of creditors
generally, if the obligations of any Subsidiary Guarantor under Section 13.01 would otherwise be held or determined to be
void, invalid or unenforceable, or subordinated to the claims of any other creditors, on account of the amount of its liability under
Section 13.01, then, notwithstanding any other provision hereof to the contrary, the amount of such liability shall, without
any further action by such Subsidiary Guarantor, the Administrative Agent, any Lender or any other Person, be automatically limited and
reduced to the highest amount that is valid and enforceable and not subordinated to the claims of other creditors as determined in such
action or proceeding.
SECTION 14.
MISCELLANEOUS
14.01 No
Waiver. No failure on the part of the Administrative Agent or the Lenders to exercise and no
delay in exercising, and no course of dealing with respect to, any right, power or privilege under any Loan Document shall operate as
a waiver thereof, nor shall any single or partial exercise of any right, power or privilege under any Loan Document preclude any other
or further exercise thereof or the exercise of any other right, power or privilege. The remedies provided herein are cumulative and not
exclusive of any remedies provided by law.
14.02 Notices.
(a) All
notices, requests, instructions, directions and other communications provided for herein (including any modifications of, or waivers,
requests or consents under, this Agreement) or in the other Loan Documents shall be given or made in writing (including by telecopy or
email) delivered, if to the Borrower, another Obligor, the Administrative Agent or any Lender, to its address specified on the signature
pages hereto or its Guarantee Assumption Agreement, as the case may be, or at such other address as shall be designated by such party
in a written notice to the other parties. 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).
(b) Notwithstanding
anything in this Section 14.02 to the contrary, any notice, request, instruction, direction or other communication provided for herein
and addressed to a QIA Lender (a “QIA Lender Notice”) shall be effective only if such QIA Lender Notice is (a) delivered
either personally by hand or by an international courier service providing delivery service in Qatar to the address of such QIA Lender
set forth in this Agreement under the signature pages hereto and, in each case (b) confirmed by email to such QIA Lender’s
email addresses listed under the signature pages hereto; provided that (i) all such email addresses listed under the
signature pages hereto for copy are copied and (ii) a “failed delivery” message is not received by the sender from
such QIA Lender’s primary email addresses listed under the signature pages hereto. Delivery shall be deemed effective only
if completed by 1:30 p.m. on a day in which banks are open for business in Qatar (a “Qatari Business Day”) or
on the following Qatari Business Day if completed later.
14.03 Expenses, Indemnification,
Etc.
(a) Expenses.
Each Obligor, jointly and severally, agrees to pay or reimburse (i) the Administrative Agent and the Lenders and their respective
Affiliates for all of their reasonable and documented out of pocket costs and expenses (including the fees, expenses, charges and disbursements
of Sullivan & Cromwell LLP, counsel to the Lenders, the fees (if necessary) of local and regulatory counsel for both of the Administrative
Agent and the Lenders in each relevant material jurisdiction, and any sales, goods and services or other similar Taxes applicable thereto,
and reasonable and documented printing, reproduction, document delivery, communication and travel costs) in connection with (x) the
negotiation, preparation, execution and delivery of this Agreement and the other Loan Documents and the making of the Loans (exclusive
of post-closing costs), (y) post-closing costs (including costs of the administration of this Agreement and the other Loan Documents)
and (z) the negotiation or preparation of any modification, supplement or waiver of any of the terms of this Agreement or any of
the other Loan Documents (whether or not consummated); provided, that the amount of such costs and expenses obligated to be paid
by the Obligors for activities prior to the Closing Date, together with all costs
and expenses payable by the Obligors related
to the Revenue Interest Financing and any related transactions with the Administrative
Agent, the Lenders and/or their Affiliates prior
to the Closing Date, shall not exceed $700,000 (or such greater amount as may be reasonably
agreed to by the Borrower), plus the actual cost of any collateral filing and recordation fees and searches and (ii) each of the
Administrative Agent and the Lenders for all of their documented out of pocket costs and expenses (including the fees and expenses of
any legal counsel) in connection with the enforcement, exercise or protection of their rights in connection with this Agreement and the
other Loan Documents, including their rights under this Section 14.03, or in connection with the Loans made hereunder, including
such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans.
(b) Indemnification.
Each Obligor, jointly and severally, hereby indemnifies the Administrative Agent (and any sub-agent thereof), the Lenders and their respective
Affiliates, directors, officers, employees, attorneys, agents, advisors and controlling parties (each, an “Indemnified Party”)
from and against, and agrees to hold them harmless against, any and all Claims and Losses of any kind including reasonable and documented
out of pocket fees and disbursements of any counsel for each Indemnified Party (limited to, at most, two legal counsels in each relevant
jurisdiction, one for each of (A) the Oaktree Lenders and (B) the QIA Lenders), that may be incurred by or asserted or awarded
against any Indemnified Party, in each case arising out of or in connection with or relating to (i) Agreement or any of the other
Loan Documents or the Transactions, (ii) any use made or proposed to be made with the proceeds of the Loans, (iii) any actual
or alleged presence or release of Hazardous Materials on or from any property owned or operated by any Obligor or any of its Subsidiaries,
or (iv) any actual or prospective claim, investigation, litigation or proceeding relating to any of the foregoing, whether based
on contract, tort, or any other theory, whether or not such investigation, litigation or proceeding is brought by any Obligor, any of
its Subsidiaries, shareholders or creditors, an Indemnified Party or any other Person, or an Indemnified Party is otherwise a party thereto,
and whether or not any of the conditions precedent set forth in Section 6 are satisfied or the other transactions contemplated
by this Agreement are consummated, except to the extent such Claim or Loss is found in a final, non-appealable judgment by a court of
competent jurisdiction to have resulted from such Indemnified Party’s gross negligence or willful misconduct. No Obligor shall assert
any claim against any Indemnified Party, on any theory of liability, for consequential, indirect, special or punitive damages arising
out of or otherwise relating to this Agreement or any of the other Loan Documents or any of the Transactions or the actual or proposed
use of the proceeds of the Loans. The Borrower, its Subsidiaries and Affiliates and their respective directors, officers, employees, attorneys,
agents, advisors and controlling parties are each sometimes referred to in this Agreement as a “Borrower Party”.
No Lender shall assert any claim against any Borrower Party, on any theory of liability, for consequential, indirect, special or punitive
damages arising out of or otherwise relating to this Agreement or any of the other Loan Documents or any of the Transactions or the actual
or proposed use of the proceeds of the Loans. This Section shall not apply to Taxes other than Taxes relating to a non-Tax Claim
or Loss governed by this Section 14.03(b).
14.04 Amendments,
Etc. Except as otherwise expressly provided in this Agreement, any provision of this Agreement
and any other Loan Document (except for the Company WarrantWarrants
or the 701 Warrants, which may be amended, waived or supplemented in accordance with the terms thereof) may be modified or supplemented
only by an instrument in writing signed by the Borrower, the Administrative Agent and the Majority Lenders; provided that:
(a) any
such modification or supplement that is disproportionately adverse to any Lender as compared to other Lenders or subjects any Lender to
any additional obligation shall not be effective without the consent of such affected Lender;
(b) the
consent of all of the Lenders shall be required to:
(i) amend,
modify, discharge, terminate or waive any of the terms of this Agreement or any other Loan Agreement (including by modifying any defined
term used therein or any provision referenced therein) if such amendment, modification, discharge, termination or waiver would increase
the amount of the Loans or Commitment, reduce the fees payable hereunder, reduce interest rates or other amounts payable with respect
to the Loans, extend any date fixed for payment of principal (it being understood that the waiver of any prepayment of Loans shall not
constitute an extension of any date fixed for payment of principal), interest or other amounts payable relating to the Loans, extend the
repayment dates of the Loans, modify the Commitments, modify the definition of “Proportionate Share” or extend the Commitment
Termination Date, provided, for the avoidance of doubt, that any waiver or amendment relating to an Event of Default or Default
arising out of a breach or prospective breach of the Minimum Revenue Covenant shall only require the consent of the Majority Lenders;
(ii) amend,
modify, discharge, terminate or waive any Security Document or Guarantee if the effect is to release all or substantially all of the Collateral,
or to release all or substantially all of the value of the Guarantee, subject thereto other than pursuant to the terms hereof or thereof;
or
(iii) amend
this Section 14.04 or the definition of “Majority Lenders”.
14.05 Successors
and Assigns.
(a) General.
The provisions of this Agreement and the other Loan Documents shall be binding upon and inure to the benefit of the parties hereto or
thereto and their respective successors and assigns permitted hereby or thereby, except that no Obligor may assign or otherwise transfer
any of its rights or obligations hereunder (except in connection with an event permitted under Section 9.03) without the prior
written consent of each Lender. Any Lender may assign or otherwise transfer any of its rights or obligations hereunder or under any of
the other Loan Documents (i) to an assignee in accordance with the provisions of Section 14.05(b), (ii) by way of
participation in accordance with the provisions of Section 14.05(e), or (iii) by way of pledge or assignment of a security
interest subject to the restrictions of Section 14.05(f). Nothing in this Agreement, expressed or implied, shall be construed
to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants to the
extent provided in Section 14.05(e) and, to the extent expressly contemplated hereby, the Related Parties of each of
the Administrative Agent and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(b) Assignments
by Lender. Any Lender may at any time assign to one or more Eligible Transferees (or, if an Event of Default has occurred and is continuing,
to any Person) all or a portion of its rights and obligations under this Agreement (including all or a portion of the Loans at the time
owing to it) and the other Loan Documents; provided that (i) no such assignment shall be made to any Obligor, any Affiliate
of any Obligor, any employees or directors of any Obligor at any time and (ii) no such assignment shall be made without the prior
written consent of the Administrative Agent, not to be unreasonably withheld, conditioned or delayed. The consent of the Borrower (such
consent not to be unreasonably withheld, conditioned or delayed) shall be required unless (x) a Default or Event of Default has occurred
and is continuing at the time of such assignment or (y) such assignment is to an Eligible Transferee); provided that the Borrower
shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent
within five (5) Business Days after having received written notice thereof; provided further that the consent of the Borrower
shall not be required for any assignment to (x) Oaktree Capital Management, L.P. or any of its managed funds or accounts or (y) any
Affiliate of the foregoing. Subject to the recording thereof by the Administrative Agent pursuant to Section 14.05(d), and
to receipt by the Administrative Agent of a processing and recordation fee in the amount of $3,500 (provided that the Administrative Agent
may, in its sole discretion, elect to waive such processing and recordation fee in the case of any assignment) from and after the date
such Assignment and Assumption is recorded in the Register, the assignee thereunder shall be a party to this Agreement and, to the extent
of the interest assigned by such Assignment and Assumption, have the rights and obligations of the Lender under this Agreement and the
other Loan Documents, and correspondingly the assigning Lender shall, to the extent of the interest assigned by such Assignment and Assumption,
be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the Lender’s
rights and obligations under this Agreement, such Lender shall cease to be a party hereto) and the other Loan Documents but shall continue
to be entitled to the benefits of Section 5 and Section 14.03. Any assignment or transfer by the Lender of rights
or obligations under this Agreement that does not comply with this Section 14.05(b) shall be treated for purposes of
this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with Section 14.05(e).
(c) Amendments
to Loan Documents. Each of the Administrative Agent, the Lenders and the Obligors agrees to enter into such amendments to the Loan
Documents, and such additional Security Documents and other instruments and agreements, in each case in form and substance reasonably
acceptable to the Administrative Agent, the Lenders and the Obligors, as shall reasonably be necessary to implement and give effect to
any assignment made under this Section 14.05.
(d) Register.
The Administrative Agent, acting solely for this purpose as a non-fiduciary agent of the Borrower, shall maintain at one of its offices
in the United States a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses
of the Lenders, and the Commitments of, and principal amounts (and stated interest) of the Loans owing to, each Lender pursuant to the
terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive absent manifest
error, and the Borrower, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register pursuant
to the terms hereof as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower
and any Lender, at any reasonable time and from time to time upon reasonable prior written notice. Notwithstanding anything to the contrary,
any assignment of any Loan shall be effective only upon appropriate entries with respect thereto being made in the Register.
(e) Participations.
Any Lender may at any time, without the consent of, or notice to, the Borrower, sell participations to any Eligible Transferee (other
than a natural person or any Obligor or any of its Affiliates or Subsidiaries) (each, a “Participant”) in all
or a portion of the Lender’s rights and/or obligations under this Agreement (including all or a portion of the Commitment and/or
the Loans owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrower
shall continue to deal solely and directly with such Lender in connection therewith. Any agreement or instrument pursuant to which any
Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce the Loan Documents and to approve
any amendment, modification or waiver of any provision of the Loan Documents; provided that such agreement or instrument may provide
that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver that would (i) increase
or extend the term of such Lender’s Commitment, (ii) extend the date fixed for the payment of principal of or interest on the
Loans or any portion of any fee hereunder payable to the Participant, (iii) reduce the amount of any such payment of principal, or
(iv) reduce the rate at which interest is payable thereon to a level below the rate at which the Participant is entitled to receive
such interest. Subject to Section 14.05(f), the Borrower agrees that each Participant shall be entitled to the benefits of
Section 5.01 or 5.03 (subject to the requirements and limitations therein, including the requirements under Section 5.03(f) (it
being understood that the documentation required under Section 5.03(f) shall be delivered to the participating Lender))
to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to Section 14.05(b); provided
that such Participant (i) agrees to be subject to the provisions of Section 5.04 as if it were an assignee under Section 14.05(b) and
(ii) shall not be entitled to receive any greater payment under Section 5.01 or 5.03, with respect to any participation,
than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment
results from a change in Law that occurs after the Participant acquired the applicable participation or the sale of the participation
to such Participant is made with the Borrower’s prior written consent. To the extent permitted by Law, each Participant also shall
be entitled to the benefits of Section 4.03(a) as though it were a Lender. Each Lender that sells a participation shall,
acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of
each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations
under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation
to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a
Participant’s interest in any commitments, loans or its other obligations under any Loan Document) to any Person except to the extent
that such disclosure is necessary to establish that such commitment, loan or other obligation is in registered form under Section 5f.103-1(c) of
the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender
shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this
Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative
Agent) shall have no responsibility for maintaining a Participant Register.
(f) [Reserved].
(g) Certain
Pledges. Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under the Loan Documents
to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided
that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee
for such Lender as a party hereto.
14.06 Survival.
The obligations of the Borrower under Sections 5.01, 5.02, 5.03, 14.03, 14.05, 14.06, 14.09,
14.10, 14.11, 14.12, 14.13 and 14.14 and the obligations of the Subsidiary Guarantors under Section 13
(solely to the extent guaranteeing any of the obligations under the foregoing Sections) shall survive the repayment of the Obligations
and the termination of the Commitments and, in the case of the Lenders’ assignment of any interest in the Commitments or the Loans
hereunder, shall survive, in the case of any event or circumstance that occurred prior to the effective date of such assignment, the making
of such assignment, notwithstanding that the Lenders may cease to be “Lenders” hereunder. In addition, each representation
and warranty made, or deemed to be made by a Borrowing Notice, herein or pursuant hereto shall survive the making of such representation
and warranty.
14.07 Captions.
The table of contents and captions and section headings appearing herein are included solely for convenience of reference and are not
intended to affect the interpretation of any provision of this Agreement.
14.08 Counterparts,
Effectiveness. This Agreement may be executed in any number of counterparts, all of which taken
together shall constitute one and the same instrument and any of the parties hereto may execute this Agreement by signing any such counterpart.
Delivery of an executed signature page of this Agreement by facsimile transmission or electronic transmission (in PDF format) shall
be effective as delivery of a manually executed counterpart hereof. This Agreement shall become effective when counterparts hereof executed
on behalf of the Obligors, the Administrative Agent and the Lender shall have been received by the Administrative Agent.
14.09 Governing
Law. This Agreement and the rights and obligations of the parties hereunder shall be governed
by, and construed in accordance with, the law of the State of New York.
14.10 Jurisdiction,
Service of Process and Venue.
(a) Submission
to Jurisdiction. Each party hereby irrevocably and unconditionally agrees that it will not commence any action, litigation or proceeding
of any kind or description, whether in law or equity, whether in contract or tort or otherwise, against such other party in any way relating
to this Agreement or any Loan Document or the transactions relating hereto or thereto, in any forum other than the courts of the State
of New York sitting in New York County, and of the United States District Court of the Southern District of New York, and any appellate
court from any thereof, and each of the parties hereto irrevocably and unconditionally submits to the exclusive jurisdiction of such courts
and agrees that all claims in respect of any such action, litigation or proceeding may be heard and determined in such New York State
court or, to the fullest extent permitted by applicable Law, in such federal court. Each of the parties hereto agrees that a final judgment
in any such action, litigation or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law.
(b) [Reserved].
(c) Waiver
of Venue, Etc. Each party hereto irrevocably waives to the fullest extent permitted by law any
objection that it may now or hereafter have to the laying of the venue of any suit, action or proceeding arising out of or relating to
this Agreement or any other Loan Document and hereby further irrevocably waives to the fullest extent permitted by law any claim that
any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum. A final judgment (in respect
of which time for all appeals has elapsed) in any such suit, action or proceeding shall be conclusive and may be enforced in any court
to the jurisdiction of which such party is or may be subject, by suit upon judgment.
14.11 Waiver
of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE
OTHER LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
14.12 Waiver
of Immunity. To the extent that any Obligor may be or become entitled to claim for itself or
its property or revenues any immunity on the ground of sovereignty or the like from suit, court jurisdiction, attachment prior to judgment,
attachment in aid of execution of a judgment or execution of a judgment, and to the extent that in any such jurisdiction there may be
attributed such an immunity (whether or not claimed), such Obligor hereby irrevocably agrees not to claim and hereby irrevocably waives
such immunity with respect to its obligations under this Agreement and the other Loan Documents.
14.13 Entire
Agreement. This Agreement and the other Loan Documents constitute the entire agreement among
the parties with respect to the subject matter hereof and thereof and supersede any and all previous agreements and understandings, oral
or written, relating to the subject matter hereof, including any confidentiality (or similar) agreements. EACH OBLIGOR ACKNOWLEDGES, REPRESENTS
AND WARRANTS THAT IN DECIDING TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS OR IN TAKING OR NOT TAKING ANY ACTION HEREUNDER
OR THEREUNDER, IT HAS NOT RELIED, AND WILL NOT RELY, ON ANY STATEMENT, REPRESENTATION, WARRANTY, COVENANT, AGREEMENT OR UNDERSTANDING,
WHETHER WRITTEN OR ORAL, OF OR WITH ADMINISTRATIVE AGENT OR THE LENDERS OTHER THAN THOSE EXPRESSLY SET FORTH IN THIS AGREEMENT AND THE
OTHER LOAN DOCUMENTS.
14.14 Severability.
If any provision hereof is found by a court to be invalid or unenforceable, to the fullest extent permitted by any Law the parties agree
that such invalidity or unenforceability shall not impair the validity or enforceability of any other provision hereof.
14.15 No
Fiduciary Relationship. The Borrower acknowledges that the Administrative Agent and the Lenders
have no fiduciary relationship with, or fiduciary duty to, the Borrower arising out of or in connection with this Agreement or the other
Loan Documents, and the relationship between the Lenders and the Borrower is solely that of creditor and debtor. This Agreement and the
other Loan Documents do not create a joint venture among the parties.
14.16 Confidentiality.
(a) The
Administrative Agent and each Lender agree to keep confidential all non-public information provided to them by any Obligor pursuant to
this Agreement that is designated by such Obligor as confidential in accordance with its customary procedures for handling its own confidential
information; provided that nothing herein shall prevent the Administrative Agent or any Lender from disclosing any such information
(i) to the Administrative Agent, any other Lender or any Affiliate of a Lender, (ii) subject to an agreement to comply with
the provisions of this Section, to any Eligible Transferee or assignee permitted under Section 14.05(b), and any actual or
prospective direct or indirect counterparty to any Hedging Agreement (or any professional advisor to such counterparty), (iii) to
its employees, officers, directors, agents, attorneys, accountants, trustees and other professional advisors or those of any of its affiliates
(collectively, its “Related Parties”), in each case on a need-to-know basis, (iv) upon the requirement
or demand of any Governmental Authority or any Regulatory Authority purporting to have jurisdiction over such Person or its Related Parties
(including any self-regulatory authority, such as the National Association of Insurance Commissioners), (v) in response to any order
of any court or other Governmental Authority or as may otherwise be required pursuant to any Law, (vi) if required to do so in connection
with any litigation or similar proceeding, (vii) that has been publicly disclosed (other than as a result of a disclosure in violation
of this Section 14.16), (viii) to the National Association of Insurance Commissioners or any similar organization or
any nationally recognized rating agency that requires access to information about a Lender’s investment portfolio in connection
with ratings issued with respect to such Lender, (ix) to the extent necessary in connection with the exercise of any remedy hereunder
or under any other Loan Document, (x) on a confidential basis to (A) any rating agency in connection with rating the Borrower
or its Subsidiaries or the Loans or (B) the CUSIP Service Bureau or any similar agency in connection with the issuance and monitoring
of CUSIP numbers of other market identifiers with respect to the Loans or (xi) to any other party hereto; provided that, in
the case of disclosure pursuant to clause (iv), (v) and (vi) above, the Administrative Agent or applicable Lender,
as applicable, shall promptly provide notice to the Borrower to the extent reasonable and not prohibited by Law or any applicable Governmental
Authority.
(b) Notwithstanding
any provision of this Agreement otherwise requiring any QIA Lender to provide any information or documents to any Loan Party or any third
party, such QIA Lender shall be entitled to withhold, edit, redact and/or otherwise limit disclosure of any such information or documents
on the grounds of national security and/or financial or economic sensitivity and such QIA Lender shall have no liability whatsoever and
shall be free and harmless from any claims whatsoever for exercising its rights pursuant to this Section 14.16(b).
14.17 Interest
Rate Limitation. Notwithstanding anything herein to the contrary, if at any time the interest
rate applicable to any Loan, together with all fees, charges and other amounts that are treated as interest on such Loan under applicable
Law (collectively, “charges”), shall exceed the maximum lawful rate (the “Maximum Rate”)
that may be contracted for, charged, taken, received or reserved by the Administrative Agent and the Lender holding such Loan in accordance
with applicable Law, the rate of interest payable in respect of such Loan hereunder, together with all charges payable in respect thereof,
shall be limited to the Maximum Rate. To the extent lawful, the interest and charges that would have been paid in respect of such Loan
but were not paid as a result of the operation of this Section shall be cumulated and the interest and charges payable to such Lender
in respect of other Loans or periods shall be increased (but not above the amount collectible at the Maximum Rate therefor) until such
cumulated amount, together with interest thereon at the Federal Funds Effective Rate for each day to the date of repayment, shall have
been received by such Lender. Any amount collected by such Lender that exceeds the maximum amount collectible at the Maximum Rate shall
be applied to the reduction of the principal balance of such Loan so that at no time shall the interest and charges paid or payable in
respect of such Loan exceed the maximum amount collectible at the Maximum Rate.
14.18 Judgment
Currency.
(a) If,
for the purposes of obtaining judgment in any court, it is necessary to convert a sum due hereunder in Dollars into another currency,
the parties hereto agree, to the fullest extent permitted by Law, that the rate of exchange used shall be that at which, in accordance
with normal banking procedures, the Administrative Agent could purchase Dollars with such other currency at the buying spot rate of exchange
in the New York foreign exchange market on the Business Day immediately preceding that on which any such judgment, or any relevant part
thereof, is given.
(b) The
obligations of the Obligors in respect of any sum due to the Administrative Agent hereunder and under the other Loan Documents shall,
notwithstanding any judgment in a currency other than Dollars, be discharged only to the extent that on the Business Day following receipt
by the Administrative Agent of any sum adjudged to be so due in such other currency the Administrative Agent may, in accordance with normal
banking procedures, purchase Dollars with such other currency. If the amount of Dollars so purchased is less than the sum originally due
to the Administrative Agent in Dollars, the Borrower agrees, to the fullest extent that it may effectively do so, as a separate obligation
and notwithstanding any such judgment, to indemnify the Administrative Agent against such loss. If the amount of Dollars so purchased
exceeds the sum originally due to the Administrative Agent in Dollars, the Administrative Agent shall remit such excess to the Borrower.
14.19 USA
PATRIOT Act. The Administrative Agent and the Lenders hereby notify the Obligors that pursuant
to the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Patriot
Act”), they are required to obtain, verify and record information that identifies the Obligors, which information includes
the name and address of each Obligor and other information that will allow such Person to identify such Obligor in accordance with the
Patriot Act.
14.20 Acknowledgement
and Consent to Bail-In of Affected Financial Institutions. Notwithstanding anything to the contrary
in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that
any liability of any Affected Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be
subject to the Write-Down and Conversion Powers of the applicable Resolution Authority and agrees and consents to, and acknowledges and
agrees to be bound by:
(a) the
application of any Write-Down and Conversion Powers by the applicable Resolution Authority to any such liabilities arising hereunder which
may be payable to it by any party hereto that is an Affected Financial Institution; and
(b) the
effects of any Bail-In Action on any such liability, including, if applicable:
(i) a
reduction in full or in part or cancellation of any such liability;
(ii) a
conversion of all, or a portion of, such liability into shares or other instruments of ownership in such Affected Financial Institution,
its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments
of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document;
or
(iii) the
variation of the terms of such liability in connection with the exercise of the Write-Down and Conversion Powers of the applicable Resolution
Authority.
[Signature Pages Follow]
EXHIBIT A
FORM OF NOTE
[Omitted pursuant to Item 601(a)(5) of Regulation S-K.]
EXHIBIT B
FORM OF BORROWING NOTICE
[Omitted pursuant to Item 601(a)(5) of Regulation S-K.]
EXHIBIT L
FORM OF FUNDING DATE CERTIFICATE
[Omitted pursuant to Item 601(a)(5) of Regulation S-K.]
EXHIBIT M
FORM OF TRANCHE CD
REVENUE CONDITION CERTIFICATE
[Omitted pursuant to Item 601(a)(5) of Regulation S-K.]
EXHIBIT B
Schedule 1
Loans Schedule
[Omitted pursuant to Item 601(a)(5) of Regulation S-K.]
EXHIBIT C
Schedule 3 to Credit Agreement
Minimum Revenue
[Omitted pursuant to Item 601(a)(5) of Regulation S-K.]
EXHIBIT D
[Omitted pursuant to Item 601(a)(5) of Regulation S-K.]
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