|
Borrowers:
Trinity Biotech, Inc.
Fitzgerald Industries International, Inc.
Clark Laboratories, Inc. (d/b/a Trinity Biotech (USA))
Biopool U.S., Inc. (d/b/a Trinity Biotech Distribution)
Primus Corporation
MarDx Diagnostics, Inc.
IMMCO Diagnostics, Inc.
By: /s/ Ronan O'Caoimh
Name: Ronan O'Caoimh
Title: Director
|
|
Guarantors:
Trinity Biotech plc
By: /s/ Ronan O'Caoimh
Name: Ronan O'Caoimh
Title: Director
Trinity Research Limited
By: /s/ Ronan O'Caoimh
Name: Ronan O'Caoimh
Title: Director
Trinity Biotech Financial Services Limited
By: /s/ Ronan O'Caoimh
Name: Ronan O'Caoimh
Title: Director
Benen Trading Limited
By: /s/ Ronan O'Caoimh
Name: Ronan O'Caoimh
Title: Director
Trinity Biotech Manufacturing Limited
By: /s/ John Gillard
Name: John Gillard
Title CFO
Trinity Biotech Manufacturing Services Limited
By: /s/ Ronan O'Caoimh
Name: Ronan O'Caoimh
Title: Director
|
|
Trinity Biotech (Joint Venture) Limited
By: /s/ Ronan O'Caoimh
Name: Ronan O'Caoimh
Title: Director
Phoenix Bio-tech Corp.
By: /s/ Ronan O'Caoimh
Name: Ronan O'Caoimh
Title: Director
Immco Diagnostics (Canada) Inc.
By: /s/ Ronan O'Caoimh
Name: Ronan O'Caoimh
Title: Director
Nova Century Scientific Inc.
By: /s/ Ronan O'Caoimh
Name: Ronan O'Caoimh
Title: Director
|
|
Administrative Agent and Lender:
Perceptive Credit Holdings III, LP,
By: Perceptive Credit Opportunities GP, LLC, its general partner
By: /s/ Sandeep Dixit
Name: Sandeep Dixit
Title: Chief Credit Officer
By: /s/ Sam Chawla
Name: Sam Chawla
Title: Portfolio Manager
|
SECTION
|
HEADING
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PAGE
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1 |
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Section 1.01.
|
Certain Defined Terms
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1
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Section 1.02.
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Accounting Terms and Principles
|
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Section 1.03.
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Interpretation
|
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Section 1.04.
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Divisions
|
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Section 1.05.
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Interest Rates
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44
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Section 2.01.
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Term Loan
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Section 2.02.
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Proportionate Shares
|
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Section 2.03.
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Fees
|
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Section 2.04.
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Notes
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Section 2.05.
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Use of Proceeds
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|
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Section 3.01.
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Repayment
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Section 3.02.
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Interest
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Section 3.03.
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Prepayments
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|
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Section 4.01.
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Payments
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Section 4.02.
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Computations
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Section 4.03.
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Notices
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Section 4.04.
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Set-Off
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|
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Section 5.01.
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Additional Costs
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Section 5.02.
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Illegality
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Section 5.03.
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Taxes
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Section 5.04.
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Delay in Requests
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|
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Section 6.01.
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Conditions to Closing Date
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Section 6.02.
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Conditions to Funding Date
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|
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Section 7.01.
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Power and Authority
|
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Section 7.02.
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Authorization; Enforceability
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|
Section 7.03.
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Governmental and Other Approvals; No Conflicts
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|
Section 7.04.
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Financial Statements; Projections; Material Adverse Change
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|
Section 7.05.
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Properties
|
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Section 7.06.
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No Actions or Proceedings
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Section 7.07.
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Compliance with Laws and Agreements
|
|
Section 7.08.
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Taxes
|
|
Section 7.09.
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Full Disclosure
|
|
Section 7.10.
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Regulation
|
|
Section 7.11.
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Solvency
|
|
Section 7.12.
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Reserved
|
|
Section 7.13.
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Indebtedness and Liens
|
|
Section 7.14.
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Material Agreements
|
|
Section 7.15.
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Restrictive Agreements
|
|
Section 7.16.
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Real Property
|
|
Section 7.17.
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Pension and Other Plans
|
|
Section 7.18.
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Collateral; Security Interest
|
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Section 7.19.
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Regulatory Approvals
|
|
Section 7.20.
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Capitalization
|
|
Section 7.21.
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Insurance
|
|
Section 7.22.
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Certain Fees
|
|
Section 7.23.
|
Sanctions Laws
|
|
Section 7.24.
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Anti-Corruption Laws
|
|
Section 7.25.
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Anti-Terrorism Laws
|
|
Section 7.26.
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Royalty and Other Payments
|
|
|
||
Section 8.01.
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Financial Statements and Other Information
|
|
Section 8.02.
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Notices of Material Events
|
|
Section 8.03.
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Existence; Maintenance of Properties, Etc
|
|
Section 8.04.
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Payment of Obligations
|
|
Section 8.05.
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Insurance
|
|
Section 8.06.
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Books and Records; Inspection Rights
|
|
Section 8.07.
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Compliance with Laws
|
|
Section 8.08.
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Licenses
|
|
Section 8.09.
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Action under Environmental Laws
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|
Section 8.10.
|
Use of Proceeds
|
|
Section 8.11.
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Certain Obligations Respecting Subsidiaries; Further Assurances
|
|
Section 8.12.
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Termination of Non-Permitted Liens
|
|
Section 8.13.
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Non-Commingling
|
|
Section 8.14.
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Anti-Terrorism and Anti-Corruption Laws
|
|
Section 8.15.
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Minimum Liquidity
|
|
Section 8.16.
|
Minimum Total Revenue
|
|
Section 8.17.
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Maintenance of Regulatory Approvals, Contracts, Intellectual Property, Etc.
|
|
Section 8.18.
|
Cash Management
|
|
Section 8.19.
|
Certain Post-Funding Obligations
|
|
Section 8.20.
|
COMI
|
|
Section 8.21.
|
Cashless Exercise of Warrant Certificate and Par Value
|
|
Section 8.22.
|
Canadian Pension Plans
|
|
Section 8.23.
|
Payment of Warrant Stamp Amount
|
|
|
||
Section 9.01.
|
Indebtedness
|
|
Section 9.02.
|
Liens
|
|
Section 9.03.
|
Fundamental Changes and Acquisitions
|
|
Section 9.04.
|
Lines of Business
|
|
Section 9.05.
|
Investments
|
|
Section 9.06.
|
Restricted Payments
|
|
Section 9.07.
|
Payments of Indebtedness
|
|
Section 9.08.
|
Change in Fiscal Year
|
|
Section 9.09.
|
Sales of Assets, Etc
|
|
Section 9.10.
|
Transactions with Affiliates
|
|
Section 9.11.
|
Restrictive Agreements
|
|
Section 9.12.
|
Organizational Documents, Material Agreements
|
|
Section 9.13.
|
Reserved
|
|
Section 9.14.
|
Sales and Leasebacks
|
|
Section 9.15.
|
Hazardous Material
|
|
Section 9.16.
|
Accounting Changes
|
|
Section 9.17.
|
Compliance with ERISA.
|
|
Section 9.18.
|
Deposit Accounts
|
|
Section 9.19.
|
Outbound Licenses
|
|
Section 9.20.
|
Inbound Licenses
|
|
Section 9.21.
|
Non-Commingling
|
|
Section 9.22.
|
Canadian Defined Benefit Pension Plans
|
|
|
||
Section 10.01.
|
Events of Default
|
|
Section 10.02.
|
Remedies
|
|
Section 10.03.
|
Prepayment Premium and Redemption Price
|
|
|
Section 11.01.
|
The Guarantee
|
|
Section 11.02.
|
Obligations Unconditional
|
|
Section 11.03.
|
Reinstatement
|
|
Section 11.04.
|
Subrogation
|
|
Section 11.05.
|
Remedies
|
|
Section 11.06.
|
Instrument for the Payment of Money
|
|
Section 11.07.
|
Continuing Guarantee
|
|
Section 11.08.
|
Rights of Contribution
|
|
Section 11.09.
|
General Limitation on Guarantee Obligations
|
|
Section 11.10.
|
Irish Limitation on Guarantee Obligations
|
|
|
||
Section 12.01.
|
Appointment
|
|
Section 12.02.
|
Rights as a Lender
|
|
Section 12.03.
|
Exculpatory Provisions
|
|
Section 12.04.
|
Reliance by Administrative Agent
|
|
Section 12.05.
|
Delegation of Duties
|
|
Section 12.06.
|
Resignation of Agent
|
|
Section 12.07.
|
Non-Reliance on Administrative Agent and Other Lenders
|
|
Section 12.08.
|
Administrative Agent May File Proofs of Claim
|
|
Section 12.09.
|
Collateral and Guaranty Matters; Appointment of Collateral Agent
|
|
|
||
Section 13.01.
|
No Waiver
|
|
Section 13.02.
|
Notices
|
|
Section 13.03.
|
Expenses, Indemnification, Etc
|
|
Section 13.04.
|
Amendments, Etc
|
|
Section 13.05.
|
Successors and Assigns
|
|
Section 13.06.
|
Survival
|
|
Section 13.07.
|
Captions
|
|
Section 13.08.
|
Counterparts
|
|
Section 13.09.
|
Governing Law
|
|
Section 13.10.
|
Jurisdiction, Service of Process and Venue
|
|
Section 13.11.
|
Waiver of Jury Trial
|
|
Section 13.12.
|
Waiver of Immunity
|
|
Section 13.13.
|
Entire Agreement
|
|
Section 13.14.
|
Severability
|
|
Section 13.15.
|
No Fiduciary Relationship
|
|
Section 13.16.
|
USA Patriot Act
|
|
Section 13.17.
|
Treatment of Certain Information; Confidentiality
|
|
Section 13.18.
|
Releases of Guarantees and Liens
|
|
Section 13.19.
|
Acknowledgement and Consent to Bail-In of EEA Financial Institutions
|
|
Section 13.20.
|
Judgment Currency
|
|
Section 13.21.
|
Administrative Borrower
|
|
Section 13.22.
|
Joint and Several Liability of Borrowers
|
|
SCHEDULES:
|
|
|
|
|
|
SCHEDULE 1
|
—
|
Commitments and Warrant Shares
|
SCHEDULE 2
|
—
|
Notice Addresses
|
SCHEDULE 3
|
—
|
Products
|
SCHEDULE 7.05(a)
|
—
|
Obligor Owned Real Property
|
SCHEDULE 7.05(b)
|
—
|
Obligor Material Intellectual Property
|
SCHEDULE 7.13A
|
—
|
Existing Indebtedness
|
SCHEDULE 7.13B
|
—
|
Existing Liens
|
SCHEDULE 7.14
|
—
|
Material Agreements
|
SCHEDULE 7.15
|
—
|
Restrictive Agreements
|
SCHEDULE 7.16
|
—
|
Real Property
|
SCHEDULE 7.17
|
—
|
Pension Matters
|
SCHEDULE 7.19(b)
|
—
|
Regulatory Approvals
|
SCHEDULE 7.19(e)
|
—
|
Regulatory Authority Notices
|
SCHEDULE 7.20
|
—
|
Capitalization
|
SCHEDULE 7.22
|
—
|
Broker’s Fee
|
SCHEDULE 7.23
|
—
|
Trade Compliance
|
SCHEDULE 7.26
|
—
|
Royalty and Other Payments
|
SCHEDULE 8.19
|
—
|
Certain Post-Funding Obligations
|
SCHEDULE 9.03
|
—
|
Subsidiaries to be Dissolved
|
SCHEDULE 9.05(a) | — | Existing Investments |
SCHEDULE 9.10 | — | Transactions with Affiliates |
EXHIBITS: | ||
EXHIBIT A | — | Form of Guarantee Assumption Agreement |
EXHIBIT B | — | Form of Borrowing Notice |
EXHIBIT C |
— | Form of Note |
EXHIBIT D | — | Form of U.S. Tax Compliance Certificate |
EXHIBIT E |
— | Form of Compliance Certificate |
EXHIBIT F | — | Form of Assignment Agreement |
EXHIBIT G-1 | — | Form of U.S. Security Agreement |
EXHIBIT G-2 | — | Form of Canadian Security Agreement |
EXHIBIT G-3 | — | Form of Irish Debenture |
EXHIBIT H-1 | — | Form of Patent and Trademark Security Agreement |
EXHIBIT H-2 | — | Form of Copyright Security Agreement |
EXHIBIT I |
— | Form of Collateral Questionnaire |
EXHIBIT J | — | Form of Warrant Certificate |
EXHIBIT K | — | Form of Intercompany Subordination Agreement |
EXHIBIT K | — | Form of Investor Subordination Agreement |
|
(a)
Daily Simple SOFR; or
|
|
(b) the sum of: (i) the alternate benchmark rate
|
|
(a)
in the case of clause (a) or (b) of the definition of “Benchmark Transition Event,” the later of (i) the date of the public statement or publication of information referenced therein and (ii) the date on which the administrator of such
Benchmark (or the published component used in the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors of such Benchmark (or such component thereof); or
|
|
(b) in the case of clause (c) of the definition of “Benchmark Transition Event”, the first date on which such Benchmark (or the published component used in the calculation thereof) has been determined
and announced by the regulatory supervisor for the administrator of such Benchmark (or such component thereof) to be non-representative; provided that such non-representativeness will be
determined by reference to the most recent statement or publication referenced in such clause (c) and even if any Available Tenor of such Benchmark (or such component thereof) continues to be provided on such date.
|
|
(a) any “person” or “group” (within the meaning of Rule 13d-5 of the Exchange Act as in effect on the date hereof) shall own, directly or indirectly,
beneficially or of record, shares representing 40% or more of the aggregate ordinary voting power represented by the issued and outstanding Equity Interests of Parent;
|
|
(b) during any period of twelve (12) consecutive calendar months, the occupation of a majority of the seats (other than vacant seats) on the Board of Parent by
Persons who were neither (i) nominated or approved by the Board of Parent, nor (ii) appointed by directors on the Board on the date hereof or so nominated;
|
|
(c) Parent shall cease to own directly or indirectly, determined on a fully diluted basis, 100% of the issued and outstanding Equity Interests of the
Obligors; and
|
|
(d) each Obligor (other than Parent) shall cease to own directly, beneficially and of record, determined on a fully diluted basis, 100% of the issued and
outstanding Equity Interests of its Subsidiaries (except an Immaterial Foreign Subsidiary).
|
|
(a) listed in the annex to, or otherwise targeted by the provisions of, the Executive Order (as disclosed by World-Check or another reputable commercially
available database);
|
|
(b) named as a “Specially Designated National and Blocked Person” on the most current list published by OFAC at its official website or any replacement
website or other replacement official publication of such list (as disclosed by World-Check or another reputable commercially available database); or
|
|
(c) with which the Lenders are prohibited from dealing or otherwise engaging in any transaction by any Economic Sanctions Laws or Irish Economic Sanctions
Laws.
|
|
|
|
|
|
(a) applications, registrations, amendments and extensions relating to such Intellectual Property;
|
|
(b) rights and privileges arising under any applicable Laws with respect to any Intellectual Property;
|
|
(c) rights to sue for or collect any damages from any past, present or future infringements of any Intellectual Property; and
|
|
(d) rights under Product Agreements related to such Intellectual Property.
|
|
(a) with respect to the incurrence or issuance of any Indebtedness incurred by a Person and not permitted under Section 9.01, the excess, if any, of (i) the
sum of the cash received in connection with such incurrence or issuance over (ii) the investment banking fees, underwriting discounts, commissions, costs and other reasonable expenses and other customary expenses (including reasonable
attorney’s, accountant’s and other similar professional advisor’s fees), incurred by such Person in connection with such incurrence or issuance to third parties (other than any other Obligor or any of their respective Affiliates);
|
|
(b) with respect to any Casualty Event, the amount of cash proceeds actually received from time to time by or on
behalf of such Obligor after deducting therefrom only (i) actual costs and expenses related thereto incurred by such Obligor and (ii) Taxes paid or payable in each case, in connection therewith or as a result thereof; and
|
|
(c) with respect to any Asset Sale, the excess, if any, of (i) cash proceeds received in respect of such Asset Sale (including cash proceeds subsequently
received (as and when received)) over (ii) the sum of (A) the direct costs of such Asset Sale then payable by the recipient of such proceeds excluding amounts payable to any Obligor or any of its Subsidiaries, Taxes paid or payable by
such recipient in connection therewith or as a result thereof, (C) amounts required to be applied to repay principal, interest and prepayment premiums and penalties on Indebtedness secured by a Permitted Lien on the properties subject to
such Asset Sale and (D) amounts reserved or deposited in escrow with respect to indemnity payments or price adjustments until such amounts are released to the applicable Obligor or any of its Subsidiaries.
|
|
(i) immediately prior to, and immediately after giving effect thereto, no Default or Event of Default shall have occurred and be continuing or would result
therefrom;
|
|
(ii) all transactions in connection therewith shall be consummated, in all material respects, in accordance with all applicable Laws and in conformity in all
material respects with all applicable Governmental Approvals;
|
|
(iii) in the case of the Acquisition of all of the Equity Interests of such Person, all of the Equity Interests (except
for any such securities in the nature of directors’ qualifying shares required pursuant to applicable Law) acquired, or otherwise issued by such Person or any newly formed Subsidiary of such Obligor in connection with such Acquisition,
shall be owned 100% by an Obligor, and the Obligor shall have taken, or caused to be taken, as of the date such Person becomes a Subsidiary of an Obligor, each of the actions set forth in Section 8.11, if applicable;
|
|
(iv) such Person (in the case of an Acquisition of Equity Interests) or assets (in the case of an Acquisition of assets or a division) (A) shall be engaged or
used, as the case may be, in the same business or lines of business in which the Obligors and/or their Subsidiaries are engaged or a business reasonably and substantially related thereto or (B) shall have a similar customer base as the
Borrowers and/or their Subsidiaries;
|
|
(v) the Administrative Borrower shall have provided the Administrative Agent with at least ten (10) Business Days’ prior written notice of any such Acquisition,
together with summaries, prepared in reasonable detail, of all due diligence conducted by or on behalf of an Obligor, or the applicable Subsidiary, prior to such Acquisition;
|
|
(vi) the Acquisition shall have been approved by the Board or other governing body or controlling Person of the Person acquired or the Person from whom such
assets or division is acquired; and
|
|
(vii) on a pro forma basis after giving effect to such Acquisition, the Obligors and their Subsidiaries shall be in
compliance with Section 8.15(a).
|
|
(a)
Term Loan.
|
|
(i) Subject to the terms and conditions of this Agreement and relying on the representations and warranties set forth herein, each Lender, severally and not
jointly, agrees to provide its share of the Term Loan to the Borrowers on the Funding Date in Dollars in a principal amount equal to such Lender’s Commitment. No Lender shall have an obligation to make a Term Loan in excess of such
Lender’s Commitment.
|
|
(ii) The Borrowers may make one Borrowing under the Commitment which shall be on the Funding Date. Subject to Section 3.03, all amounts owed hereunder with
respect to the Term Loan shall be paid in full no later than the Maturity Date. Each Lender’s Commitment shall terminate immediately and without further action on the earlier of (A) the Funding Date after giving effect to the funding of
such Lender’s Commitment on such date and (B) the Commitment Termination Date.
|
|
(iii) Subject to the terms and conditions of this Agreement (including Section 6.02), the Administrative Borrower shall deliver to the Administrative Agent a fully
executed Borrowing Notice no later than 5 p.m. (New York City time) at least one (1) Business Day in advance of the Funding Date.
|
|
(b) Any principal amount of the Term Loan borrowed under Section 2.01(a) hereof and subsequently repaid or prepaid may not be reborrowed.
|
|
(a) On the Closing Date, the Borrowers shall pay to the Administrative Agent, in accordance with the provisions of the Fee Letter and for distribution to each
Lender in accordance with its Pro Rata Share of the Term Loan, the Closing Fee. Such payments shall be in addition to such fees, costs and expenses due and payable pursuant to Section 13.03.
|
|
(b) On the Funding Date, the Borrowers shall pay to the Administrative Agent (out of the proceeds of the Term Loan advanced by the Lenders on the Funding Date),
in accordance with the provisions of the Fee Letter and for distribution to each Lender in accordance with its Pro Rata Share of the Term Loan, the Funding Fee. Such payments shall be in addition to such fees, costs and expenses due and
payable pursuant to Section 13.03.
|
|
(a) for general corporate purposes permitted hereunder,
|
|
(b) to refinance Convertible Notes outstanding as of the Funding Date, and
|
|
(c) to pay, in accordance with the funds flow attached to the Borrowing Notice, fees, costs and expenses incurred in connection with the Transactions.
|
|
(a) Interest Generally. The Borrowers agree to pay to the Lenders interest in cash on the outstanding
principal amount of the Term Loan for each Interest Period at a rate per annum equal to the sum of (i)
|
|
|
|
|
|
(c) Effect of Benchmark Transition Event.
|
|
(i)
|
|
(ii)
|
|
(iii)
|
|
(iv)
|
|
(d)
|
|
(e)
|
|
(f)
|
|
(i) first, by reducing the amount or rate of interest required to be paid under this Agreement or such other Loan Document; and
|
|
(ii) thereafter, by reducing any fees, commissions, premiums or other amounts required to be paid which would constitute interest for the purposes of Section
347 of the Criminal Code (Canada).
|
|
(g)
|
|
(i) wherever interest to be paid under this Agreement is to be calculated on the basis of any period of time that is less than a calendar year (a "deemed year"), such rate of interest shall be expressed as a yearly rate by multiplying such rate of interest for the deemed year by the actual number of days in the calendar year in which the rate is
to be ascertained and dividing it by the number of days in the deemed year; and
|
|
(ii) each Obligor confirms that it fully understands and is able to calculate the rate of interest applicable to each of the credit facilities made available
hereunder based on the methodology for calculating per annum rates provided for in this Agreement. The Administrative Agent agrees that, if requested in writing by the Administrative Borrower, it shall calculate the nominal and effective
per annum rate of interest on any advance outstanding hereunder at any time and provide such information to the Administrative Borrower promptly following such request; provided that any error in
any such calculation, or any failure to provide such information on request, shall not relieve any Obligor of any of its obligations under this Agreement or any other Loan Document, nor result in any liability to the Administrative Agent.
Each Obligor hereby irrevocably agrees not to plead or assert, whether by way of defense or otherwise, in any proceeding relating to the Loan Documents, that the interest payable under the Loan Documents and the calculation thereof has
not been adequately disclosed to the Obligors, whether pursuant to Section 4 of the Interest Act (Canada) or any other applicable law or legal principle.
|
|
(a) Optional Prepayments.
|
|
(i) The Borrowers shall have the right to optionally prepay in whole or in part (in a minimum amount of $500,000 and integral multiples of $100,000 in excess of
that amount for each partial prepayment, or, if less, the entire outstanding principal amount of the Term Loan) the outstanding principal amount of the Term Loan on any Business Day (a “Redemption Date”)
for an amount equal to the sum of (x) the aggregate principal amount of the Term Loan being prepaid, (y) the applicable Prepayment Premium in respect of the aggregate principal amount of the Term Loan being prepaid and (z) any accrued but
unpaid interest in respect of the aggregate principal amount of the Term Loan being prepaid (such aggregate amount, the “Redemption Price”). The applicable “Prepayment
Premium” shall be an amount calculated pursuant to Section 3.03(a)(ii).
|
|
(ii) If the Redemption Date occurs:
|
|
(A) on or prior to the first anniversary of the Funding Date, the Prepayment Premium shall be an amount equal to ten percent (10%) of the aggregate outstanding
principal amount of the Term Loan being prepaid on such Redemption Date;
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(B) after the first anniversary of the Funding Date and on or prior to the second anniversary of the Funding Date, the Prepayment Premium shall be an amount equal
to nine percent (9%) of the aggregate outstanding principal amount of the Term Loan being prepaid on such Redemption Date;
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(C) after the second anniversary of the Funding Date and on or prior to the third anniversary of the Funding Date, the Prepayment Premium shall be an amount
equal to eight percent (8%) of the aggregate outstanding principal amount of the Term Loan being prepaid on such Redemption Date;
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(D) after the third anniversary of the Funding Date and prior to the Stated Maturity Date, the Prepayment Premium shall be an amount equal to seven percent (7%)
of the aggregate outstanding principal amount of the Term Loan being prepaid on such Redemption Date.
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(b) Mandatory Prepayments. The Borrowers shall prepay the Term Loan in amounts as provided below, it being
agreed that the relevant payment date shall be deemed to be the “Redemption Date” for purposes of such calculation), as follows:
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(i) In the event of any Casualty Event, an amount, inclusive of any Prepayment Premium, any accrued but unpaid interest (including interest on the amount of the
principal being prepaid) and fees then due and owing, equal to 100% of the Net Cash Proceeds received by any Obligor or any of its Subsidiaries with respect thereto; provided, however, so long as
no Default or Event of Default has occurred and is continuing, within one hundred eighty (180) days after receipt of such Net Cash Proceeds, the Obligors may apply the Net Cash Proceeds of any casualty policy up to, but not exceeding
$4,000,000 for all losses in the aggregate during the term of this Agreement toward the replacement or repair of destroyed or damaged property; provided, further, that any such replaced or
repaired property shall be Collateral in which the Administrative Agent for the benefit of the Lenders has been granted a security interest under the Security Documents.
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(ii) In the event any Obligor or any of its Subsidiaries incurs Indebtedness other than Indebtedness that is permitted by Section 9.01 hereof, an amount,
inclusive of any Prepayment Premium, any accrued but unpaid interest (including interest on the amount of the principal being prepaid) and fees then due and owing, equal to 100% of the Net Cash Proceeds thereof received by such Person.
For the avoidance of doubt, any prepayment made pursuant to this Section 3.03(b)(ii) shall not be deemed to be a consent to any such incurrence of Indebtedness or a cure or waiver of any Event of Default which occurs in connection
therewith, it being understood that any such Event of Default may only be waived with the express consent of the Majority Lenders.
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(iii) In the event any Obligor or any of its Subsidiaries consummates an Asset Sale other than an Asset Sale that is permitted by Section 9.09 hereof (other than
Section 9.09(j)), an amount, inclusive of any Prepayment Premium any accrued but unpaid interest (including interest on the amount of the principal being prepaid) and fees then due and owing, equal to 100% of the Net Cash Proceeds
received by such Obligor in connection with such Asset Sale; provided, however, so long as no Default or Event of Default has occurred and is continuing,
within one hundred eighty (180) days after receipt of such Net Cash Proceeds (or if committed to be reinvested within such 180-day period, no later than ninety (90) days after the end of such 180-day period), the Obligors may use such Net
Cash Proceeds up to $500,000 with respect to any Asset Sale, but not exceeding $1,000,000 for all Asset Sales in the aggregate per fiscal year, to purchase, replace, repair or restore properties or assets used in the Obligors’ businesses;
provided, further, that any such purchased, replaced, repaired or restored property shall be Collateral in which the Administrative Agent for the benefit
of the Lenders has been granted a security interest under the Security Documents. For the avoidance of doubt, any prepayment made pursuant to this Section 3.03(b)(iii) shall not be deemed to be a consent to any Asset Sale or a cure or
waiver of any Event of Default which occurs in connection therewith, it being understood that any such Event of Default may only be waived with the express consent of the Majority Lenders.
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(c) Prepayment Premium. Payment of any Prepayment Premium under this Section 3.03 constitutes liquidated
damages, not unmatured interest or a penalty, as the actual amount of damages to the Lenders as a result of the relevant triggering event, prepayment or repayment would be impracticable and extremely difficult to ascertain. Accordingly,
any Prepayment Premium hereunder is provided by mutual agreement of the Obligors and the Lenders as a reasonable estimation and calculation of such actual lost profits and other actual damages of the Lenders. Without limiting the
generality of the foregoing, it is understood and agreed that upon the occurrence of any prepayment event, any Prepayment Premium shall be automatically and immediately due and payable as though any prepaid or repaid portion of the Term
Loan was voluntarily prepaid as of such date and shall constitute part of the Obligations secured by the Collateral. Any Prepayment Premium shall also be automatically and immediately due and payable if the Term Loan is satisfied or
released by foreclosure (whether by power of judicial proceeding or otherwise), deed in lieu of foreclosure or by any other means. EACH OBLIGOR HEREBY EXPRESSLY WAIVES (TO THE FULLEST EXTENT IT MAY LAWFULLY DO SO) THE PROVISIONS OF ANY
PRESENT OR FUTURE STATUTE OR OTHER LAW THAT PROHIBITS OR MAY PROHIBIT THE COLLECTION OF THE FOREGOING PREPAYMENT PREMIUM IN CONNECTION WITH ANY SUCH EVENTS. The Obligors expressly agree (to the fullest extent it and they may lawfully do
so) that with respect to any Prepayment Premium payable under the terms of this Agreement: (i) such Prepayment Premium is reasonable and is the product of an arm’s length transaction between sophisticated business parties, ably
represented by counsel; (ii) such Prepayment Premium 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 such Prepayment Premium; and (iv) the Obligors shall be estopped hereafter from claiming differently than as agreed to in this paragraph. The Obligors expressly
acknowledge that their agreement to pay such Prepayment Premium as herein described is a material inducement to the Lenders to provide the Commitments and to make the Term Loan.
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(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 in Dollars, in immediately available funds, without deduction, set off or counterclaim, to an account of the Administrative Agent specified to the Administrative Borrower
from time to time, not later than 2:00 p.m. (Eastern time) on the date on which such payment shall become due (each such payment made after such time on such due date to be deemed to have been made on the next succeeding Business Day).
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(b) Application of Payments. Each payment under this Agreement or any other Loan Document (other than any
payment made pursuant to Section 3.01, which shall be applied to the principal amount of the Term Loan and any applicable Prepayment Premium) shall be applied in the following order of priority, with proceeds being applied to a
succeeding level of priority only if amounts owing pursuant to the immediately preceding level of priority have been paid in full in cash:
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(i) first, to the payment of any unpaid costs and expenses referred to in Section 13.03(a) then due and
owing;
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(ii) second, in reduction of the Borrowers’ obligation to pay any unpaid interest and any fees then due and
owing including, without limitation, (x) interest payable pursuant to Section 3.02(c) and (y) any Prepayment Premium;
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(iii) third, in reduction of the Borrowers’ obligations to pay any Claims or Losses referred to in Section
13.03(b) then due and owing;
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(iv) fourth, to the payment of unpaid principal of the Term Loan on a pro rata basis;
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(v) fifth, in reduction of any other Obligation then due and owing; and
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(vi) sixth, to the Borrowers or such other Persons as may lawfully be entitled to or directed by the Borrowers
to receive the remainder.
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(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 be payable for the period of such extension.
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(a)
Set-Off Generally. Upon the occurrence and during the continuance of any Event of Default, the Administrative Agent, the Lenders and each of their
respective Affiliates are 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 Lenders or such Affiliates to or for the credit or the account of any Obligor against any and all of the Obligations, whether or not the Lenders shall have made any demand and although
such Obligations may be unmatured. The Lenders agree promptly to notify the Administrative 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 Lenders and their respective Affiliates under this Section 4.04 are in addition to other rights and remedies (including other rights of set-off) that the Lenders
and their respective Affiliates may have.
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(b)
Exercise of Rights Not Required. Nothing contained herein shall require the Administrative Agent, the Lenders or any of their respective 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.
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(a)
Change in Requirements of Law Generally. If, on or after the date hereof, the adoption of any Requirement of Law,
or any change in any Requirement of 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 any Lender
(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 hereof, 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 Term Loan or the Commitment, not as a result of any action or inaction on the part of such
Lender, and the result of any of the foregoing is to increase the cost to any Lender of making or maintaining its portion of the Term Loan, or to reduce the amount of any sum received or receivable by any Lender under this Agreement or
any other Loan Document, by an amount reasonably deemed by such Lender in good faith to be material (other than (i) Indemnified Taxes, (ii) Taxes described in clauses (b) through (d) of the definition of “Excluded Taxes” and (iii) Connection Income Taxes), then the Borrowers shall promptly pay to such Lender on demand such additional amount or amounts as will compensate such Lender for such increased cost or
reduction. 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 Requirements of Law for all purposes of this Section 5.01, regardless of the date enacted, adopted or issued.
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(b) Change in Capital Requirements. If a Lender shall have determined that, on or after the date hereof,
the adoption of any Requirement of 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 hereof, 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 Term Loan 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 Borrowers shall pay to such Lender on demand such additional amount or amounts as will compensate such Lender (or its parent) for such reduction.
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(c) Notification by Lender. The Lenders will promptly notify the Administrative Borrower of any event of
which it has knowledge, occurring after the date hereof, which will entitle a 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 the Lender claiming compensation under this Section 5.01, setting forth the amount or amounts to be paid to it hereunder, shall be conclusive and binding on the Borrowers in the absence
of manifest error.
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(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 applicable Law. If any applicable Law requires the deduction or withholding of any Tax from any such payment by an Obligor, then such Obligor 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 Law 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 for Indemnified Taxes has been made (including such deductions and withholdings for Indemnified Taxes applicable to additional sums payable under this Section
5.03) the applicable Recipient receives an amount equal to the sum it would have received had no such deduction or withholding for Indemnified Taxes been made. For purposes of this Section 5.03, the term “applicable Law” includes FATCA.
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(b) Payment of Other Taxes by the Borrowers. The Borrowers shall timely pay to the relevant Governmental
Authority in accordance with applicable Law, or at the option of the Administrative Agent, timely reimburse it for, Other Taxes.
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(c) Evidence of Payments. As soon as practicable after any payment of Taxes by the Borrowers to a
Governmental Authority, as a withholding Tax pursuant to this Section 5.03, the Borrowers shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such
payment, or a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.
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(d) Indemnification. The Borrowers shall reimburse and indemnify each Recipient, within ten (10) days after
demand therefor, for the full amount of any Indemnified Taxes and Warrant Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section 5.03) payable or paid by such
Recipient or required to be withheld or deducted from a payment to such Recipient and/or any reasonable costs and expenses arising therefrom or with respect thereto (including, but not limited to, any costs arising from a dispute with
the relevant Government Authority in respect of such Indemnified Taxes or Warrant Indemnified Taxes), whether or not such Indemnified Taxes (or Warrant Indemnified Taxes) were correctly or legally imposed or asserted by the relevant
Governmental Authority; provided that, notwithstanding any other provision of this Agreement or any other Loan Document, no EEA Obligor shall be liable (whether as principal or surety or
otherwise) for any Warrant Indemnified Taxes. A certificate as to the amount of such payment or liability delivered to the Administrative Borrower 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.
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(e) Indemnification by the Lenders. 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 Borrowers have not already indemnified the Administrative Agent for such Indemnified Taxes and without
limiting the obligation of any Borrower to do so), and (ii) any 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 such Lender from any other source against any amount due to the Administrative Agent under this paragraph (e).
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(f)
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Status of Lenders.
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(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
Administrative Borrower and the Administrative Agent, at the time or times reasonably requested by the Administrative Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the
Administrative 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 Administrative Borrower or the
Administrative Agent, shall deliver such other documentation prescribed by applicable Law or as reasonably requested by the Administrative Borrower or the Administrative Agent as will enable the Administrative Agent 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 sentences, the completion, execution and
submission of such documentation (other than such documentation set forth in Section 5.03(f)(ii)(A), (B) or (D)) shall not be required if in the 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.
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(ii) Without limiting the generality of the foregoing:
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(A) any Lender that is a U.S. Person shall deliver to the Administrative 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 Administrative Borrower or the Administrative Agent), duly completed, valid, executed copies of IRS Form W-9 (or successor form)
certifying that such Lender is exempt from United States federal backup withholding Tax;
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(B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Administrative 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 Administrative Borrower or
the Administrative Agent), whichever of the following is applicable:
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(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, duly completed, valid executed copies of IRS Form W-8BEN (or successor form) or IRS Form W-8BEN-E (or successor form) establishing an exemption from, or reduction of,
United States 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, duly completed, valid, executed originals of IRS Form W-8BEN (or
successor form) or IRS Form W-8BEN-E (or successor form) establishing an exemption from, or reduction of, United States federal withholding Tax pursuant to the “business profits” or “other income” article of such Tax treaty;
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(2) duly completed, valid, executed copies of IRS Form W-8ECI (or successor form);
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(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 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 applicable Borrower within the meaning of Section
881(c)(3)(B) of the Code, or a “controlled foreign corporation” 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
successor form) or IRS Form W-8BEN-E (or successor form); or
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(4) to the extent a Foreign Lender is not the beneficial owner, duly completed, valid, executed copies of IRS Form W-8IMY (or successor form), accompanied by IRS
Form W-8ECI (or successor form), IRS Form W-8BEN (or successor form), IRS Form W-8BEN-E (or successor form), a U.S. Tax Compliance Certificate, 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 on behalf of each such direct and indirect partner;
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(iii) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Administrative 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 Administrative Borrower or
the Administrative Agent), executed copies of any other form prescribed by applicable Law as a basis for claiming exemption from or a reduction in United States federal withholding Tax, duly completed, together with such supplementary
documentation as may be prescribed by applicable Law to permit the Administrative Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and
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(iv) if a payment made to a Lender under any Loan Document would be subject to United States 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 Administrative Borrower and the Administrative Agent at the time or
times prescribed by Law and at such time or times reasonably requested by the Administrative 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 Administrative Borrower or the Administrative Agent as may be necessary for the Administrative Borrower or the Administrative Agent to comply with its 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.
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(g) Treatment of Certain Refunds. 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 5.03 (including by the payment of additional amounts pursuant to this Section 5.03), 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 5.03 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 written request of such indemnified party, shall repay to
such indemnified party the amount paid over pursuant to this paragraph (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(g), 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 giving rise to such refund 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.
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(h) Mitigation Obligations. If the Borrowers are 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 this Section 5.03, then such Lender shall (at the request of the Administrative Borrower) use commercially reasonable
efforts to designate a different lending office for funding or booking the Term Loan 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 this 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 Borrowers hereby agree to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment and
delegation.
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(i) Revenue Challenge to Warrant Stamp Amount. In the event of any written communication issued by the
Irish Revenue Commissioners to a Recipient concerning the amount of Irish stamp duty liability due on the execution of the Warrant Certificate (a “Revenue Claim”), the Recipients shall (if the
total amount of stamp duty due on the Warrant Certificate is likely to exceed $50,000):
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(i) promptly provide a copy of such written communication from the Irish Revenue Commissioners to the Parent;
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(ii) if requested by the Parent, provide to the Parent (at the Parent’s expense) copies of any material correspondence to and from the Irish Revenue Commissioners
relating to the Revenue Claim (subject to legal professional privilege and any obligations of confidence that are binding on the Recipients);
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(iii) keep the Parent reasonably informed of the progress of the Revenue Claim and of any material developments in relation to the Revenue Claim; and
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(iv) use reasonable endeavors to consult with the Obligors regarding the conduct of the Revenue Claim.
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(j) Survival. Each party’s obligations under this Article 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.
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(a) Organization and Capitalization. The organizational structure and capitalization of the Obligors, after
giving effect to the Transactions, as set forth on Schedule 7.20 shall be satisfactory to the Administrative Agent.
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(b) Terms of Material Agreements. The Administrative Agent shall be satisfied in its sole discretion with
the terms and conditions of all of the Obligors’ Material Agreements, including without limitation, the Material Agreements that are directly or indirectly associated with Product manufacturing, distribution and payment of royalties by
any Obligor.
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(c) No Law Restraining Transactions. No applicable Law or regulation shall restrain, prevent or, in the
reasonable judgment of the Administrative Agent, impose materially adverse conditions upon the Transactions.
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(d) Lien Searches. The Administrative Agent shall be satisfied with Lien searches regarding the Obligors
made prior to the Closing Date.
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(e) Documentary Deliveries. The Administrative Agent shall have received the following documents, each of
which shall be in form and substance satisfactory to the Administrative Agent:
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(i) Agreement. This Agreement duly executed and delivered by the Borrowers and each of the other parties
hereto.
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(ii) Collateral Questionnaire. The Collateral Questionnaire, duly executed and delivered by a Responsible
Officer of the Obligors, substantially in the form of Exhibit I hereto and otherwise in form and substance satisfactory to the Administrative Agent.
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(iii) Fee Letter. The Fee Letter duly executed and delivered by Borrowers and each of the other parties
thereto.
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(iv) Notes. Any Notes requested in accordance with Section 2.04.
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(v) Organizational Documents. (A) Certified copies of the Organizational Documents of each Obligor (other
than the Canadian Obligors) and of resolutions of the Board of each Obligor (other than the Canadian Obligors) approving and authorizing the execution, delivery and performance of this Agreement and each of the other Loan Documents to
which it is a party and granting the security interests pursuant to the Security Documents on the Funding Date (provided that the conditions set forth in Section 6.02 have been satisfied) certified as of the Closing Date by the
Secretary or an Assistant Secretary or Responsible Officer of such Obligor as being in full force and effect without modification or amendment provided that such resolutions of Parent will not
cover the issuance of the Warrant Certificate; (B) a good standing certificate and/or compliance certificate from the applicable Governmental Authority of each Obligor’s (other than the Irish Obligors and the Canadian Obligors)
jurisdiction of incorporation or organization, and in each jurisdiction in which it is qualified as a foreign corporation or other entity to do business, each dated a recent date prior to the Closing Date; and (C) such other documents
as the Administrative Agent may reasonably request.
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(vi) Incumbency Certificate. A certificate of each Obligor (other than the Canadian Obligors) as to the
authority, incumbency and specimen signatures of the persons who have executed the Loan Documents and any other documents in connection herewith on behalf of the Obligors (other than the Canadian Obligors).
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(vii) Officer’s Certificate. A certificate, in form and substance satisfactory to the Administrative Agent,
dated as of the Closing Date and signed by a Responsible Officer of the Borrowers, confirming compliance with the conditions set forth in this Section 6.01.
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(viii) Canadian Good Standing Certificates. A good standing certificate and/or compliance certificate from the
applicable Governmental Authority of each Canadian Obligor’s jurisdiction of incorporation or organization, and in each jurisdiction in which it is qualified as a foreign corporation or other entity
to do business, each dated a recent date prior to the Closing Date.
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(ix) Opinion of Counsel. Customary opinions, dated as of the Closing Date, of (A) Carter Ledyard &
Millburn LLP, counsel to the Obligors, (B) Matheson, Irish counsel to the Obligors, (C) Arthur Cox LLP, Irish counsel to the Administrative Agent and (D) Greensfelder, Hemker & Gale, P.C, special Missouri counsel to the Obligors, in
each case in form reasonably acceptable to the Administrative Agent and its counsel.
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(x) Financing Statements. UCC-1 financing statements, PPSA financing statements, each in form and substance
satisfactory to the Administrative Agent.
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(f) Documents in Agreed Form. The following documents shall be in agreed form, it being understood that
the following documents will not be executed until the Funding Date:
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(i)
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the Security Agreements;
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(ii)
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each Short-Form IP Security Agreement;
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(iii)
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the Canadian Intellectual Property Security Agreements;
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(iv)
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the Warrant Certificate; and
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(v)
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the Intercompany Subordination Agreement.
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(g) Due Diligence. The Administrative Agent shall have received and be satisfied with all due diligence
regarding the Obligors (including without limitation historical financial statements, Projections, technical, operational, legal, Intellectual Property, commercial market forecasts, clinical and regulatory assessments, supply chain,
securities, labor, Tax, litigation, environmental, reimbursement and regulatory authority matters) in its sole discretion.
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(h) Indebtedness. As of the Closing Date, after giving effect to the Transactions, no Obligor shall have
any Indebtedness other than Permitted Indebtedness and the Convertible Notes. All amounts due or outstanding in respect of any Indebtedness other than the Permitted Indebtedness and the Convertible Notes shall have been repaid in full,
all commitments (if any) in respect thereof terminated, all Guarantees (if any) thereof discharged and released and all security therefor (if any) released, together with all fees and other amounts owing thereon, or documentation in
form and substance satisfactory to the Administrative Agent to effect such release upon such repayment and termination shall have been delivered to the Administrative Agent.
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(i) Closing Fees, Expenses, Etc. The Lenders and their Affiliates shall have received for their own
account, the Closing Fee and all fees, costs and expenses due (including applicable attorney costs and the reasonable and documented out-of-pocket fees and expenses of any other advisors to the Lenders) and payable pursuant to Section
13.03, after deducting therefrom the Expense Deposit.
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(j) Representations and Warranties. The representations and warranties of the Obligors contained in Article
7 or any other Loan Document shall be true and correct in all material respects on and as of the Closing Date; provided that to the extent that such representations and warranties specifically
refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided further that any representation and warranty that is qualified as to
“materiality”, “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects.
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(k) No Material Adverse Change. No Material Adverse Change shall have occurred since December 31, 2020.
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(l) No Default. No Default shall exist.
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(m) Miscellaneous. The Administrative Agent and each Lender shall have received such other instruments,
certificates and documents as the Administrative Agent or such Lender shall have reasonably requested with prior notice to Borrower.
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(a)
Shareholder Approval. The Shareholder Approval shall have been obtained.
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(b) Evidence of Insurance. Certificates from the Obligors’ insurance broker or other evidence satisfactory
to the Administrative Agent that all insurance required to be maintained pursuant to Section 8.05 is in full force and effect, together with endorsements naming the Administrative Agent as additional insured and lenders’ loss payee, as
applicable, under such Obligor’s liability and casualty insurance policies.
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(c) Documentary Deliveries. The Administrative Agent shall have received the following documents, each of
which shall be in form and substance satisfactory to the Administrative Agent:
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(i) Borrowing Notice. The Administrative Agent shall have received a Borrowing Notice in accordance with
Section 2.01(a)(iii) duly executed and delivered by a Responsible Officer of the Administrative Borrower in form and substance satisfactory to the Administrative Agent.
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(ii) Warrant Certificate. The Administrative Agent shall have received the executed Warrant Certificate, dated
as of the Funding Date.
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(iii) Security Documents.
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(A) The Security Documents, including, without limitation, the Security Agreements, the Pledge Agreements, each Short-Form IP Security Agreement, the Canadian
Intellectual Property Security Agreements, “security registrations” at the Irish Companies Registration Office and account control agreements (including any springing blocked account or springing cash dominion agreements), duly executed
and delivered by each of the Obligors.
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(B) Original stock certificates for each of the Obligors pledged pursuant to the Security Documents, together with stock powers regarding the same;
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(C) [Reserved].
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(D) Without limitation, all other documents and instruments reasonably required to perfect the Administrative Agent’s Lien on, and security interest in, the
Collateral required to be delivered on or prior to the Funding Date shall have been duly executed and delivered and be in proper form for filing, and shall create in favor of the Administrative Agent, a perfected Lien on, and security
interest in, the Collateral, subject to no Liens other than Permitted Liens.
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(iv) Opinion of Counsel. Customary opinions, dated as of the Funding Date, of (A) Carter Ledyard &
Millburn LLP, counsel to the Obligors, (B) Matheson, Irish counsel to the Obligors, (C) Arthur Cox LLP, Irish counsel to the Administrative Agent, (D) Minden Gross LLP, Canadian counsel to the Obligors and (E) Greensfelder, Hemker &
Gale, P.C, special Missouri counsel to the Obligors, in each case in form reasonably acceptable to the Administrative Agent and its counsel.
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(v) Good Standing Certificates. A good standing certificate and/or compliance certificate from the applicable
Governmental Authority of each Obligor’s (other than Irish Obligors) jurisdiction of incorporation or organization, and in each jurisdiction in which it is qualified as a foreign corporation or other entity to do business, each dated a
recent date prior to the Funding Date.
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(vi) Officer’s Certificate. A certificate, in form and substance satisfactory to the Administrative Agent,
dated as of the Funding Date and signed by a Responsible Officer of the Borrowers and Parent: (A) confirming compliance with the conditions set forth in this Section 6.02, (B) certifying that the applicable names, titles and officers of
each Obligor have not changed since the Closing Date and (C) confirming that the Organizational Documents of each Obligor have not changed since the Closing Date.
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(vii) Approvals. The Obligors shall certify to the Administrative Agent that all Regulatory Approvals have been
made or obtained, and all material licenses, consents, authorizations and approvals of, and notices to and filings and registrations with, any Governmental Authority (including all foreign exchange approvals) in connection with the
Transactions have been made or obtained, and all material third-party consents and approvals, necessary in connection with the execution, delivery and performance by the Obligors of the Loan Documents and the Transactions have been
obtained.
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(viii) Organizational Documents. (A) Certified copies of the Organizational Documents of the Canadian Obligors
and of resolutions of the Board of each Canadian Obligor approving and authorizing the execution, delivery and performance of this Agreement and each of the other Loan Documents to which it is a party and granting the security interests
pursuant to the Security Documents certified as of the Funding Date by the Secretary or an Assistant Secretary or Responsible Officer of such Canadian Obligor as being in full force and effect without modification or amendment; (B)
resolutions of the Board of Parent approving and authorizing the execution, delivery and performance of the Warrant Certificate certified as of the Funding Date by the Secretary or an Assistant Secretary or Responsible Officer of Parent
as being in full force and effect without modification or amendment; (C) a good standing certificate and/or compliance certificate from the applicable Governmental Authority of each Canadian Obligor’s jurisdiction of incorporation or
organization, and in each jurisdiction in which it is qualified as a foreign corporation or other entity to do business, each dated a recent date prior to the Funding Date; and (D) such other documents as the Administrative Agent may
reasonably request.
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(ix)
Incumbency Certificate. A certificate of each Canadian Obligor as to the authority, incumbency and specimen
signatures of the persons who have executed the Loan Documents and any other documents in connection herewith on behalf of the Canadian Obligors.
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(x) Intercompany Subordination Agreement. The Intercompany Subordination Agreement substantially in the form
of Exhibit K, with any revisions reasonably required to conform to local law or practice of the jurisdiction in which an Immaterial Foreign Subsidiary is organized, duly executed and delivered by the Obligors and the Immaterial Foreign
Subsidiaries.
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(xi) Luxembourg Subsidiary Intercompany Subordination Agreement. The Luxembourg Subsidiary Intercompany
Subordination Agreement duly executed and delivered by the Obligors and the Luxembourg Subsidiary.
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(xii) Convertible Notes Funding Actions. The Administrative Agent shall have received a description of the
Convertible Notes Funding Actions no later than 5 p.m. (New York City time) at least three (3) Business Days in advance of the Funding Date.
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(d) Funding Fees, Expenses, Etc. The Lenders and their Affiliates shall have received for their own
account, the Funding Fee, the Warrant Stamp Amount, and all fees, costs and expenses due (including applicable attorney costs and the reasonable and documented out-of-pocket fees and expenses of any other advisors to the Lenders) and
payable pursuant to Section 13.03.
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(e) Convertible Notes. As of the Funding Date, after giving effect to the Transactions, All amounts due or
outstanding in respect of the Convertible Notes (other than the Outstanding Convertible Notes) shall have been repaid in full, all commitments (if any) in respect thereof terminated, all Guarantees (if any) thereof discharged and
released and all security therefor (if any) released, together with all fees and other amounts owing thereon, or documentation in form and substance satisfactory to the Administrative Agent to effect such release upon such repayment and
termination shall have been delivered to the Administrative Agent.
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(f) Customer Calls. The Administrative Agent shall have attended and be satisfied with the results of
various calls with customers of the Obligors in its sole discretion.
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(g) Representations and Warranties. The representations and warranties of the Obligors contained in Article
7 or any other Loan Document shall be true and correct in all material respects on and as of the Funding Date; provided that to the extent that such representations and warranties specifically
refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided further that any representation and warranty
that is qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects.
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(h) No Material Adverse Change. No Material Adverse Change shall have occurred since December 31, 2020.
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(i) No Default. No Default shall exist, or would result from such proposed Borrowing or from the
application of the proceeds therefrom.
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(j) Bringdown Lien Searches. The Administrative Agent shall be satisfied with bringdown Lien searches
regarding the Obligors made prior to the Funding Date.
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(k) Irish Tax Reference Number. The Administrative Agent shall have received the Irish tax reference number
of the Parent for the purposes of the Stamp Duty (E-stamping of Instruments and Self-Assessment) Regulations 2012 of Ireland.
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(l) AIB Facilities. The Administrative Agent shall have received evidence of (i) the satisfaction of all
obligations, and termination of all commitments, under AIB Facility 1, AIB Facility 2 and AIB Facility 4 and (ii) an amendment to Section 12(i) in the Standard Terms and Conditions of the AIB Facilities Letter to permit the
Administrative Agent’s Lien on the Collateral, in each case on terms and provisions satisfactory to the Administrative Agent in its sole discretion.
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(m) Miscellaneous. The Administrative Agent and each Lender shall have received such other instruments,
certificates and documents as the Administrative Agent or such Lender shall have reasonably requested with prior notice to Borrower.
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(a) Financial Statements. The Obligors have heretofore furnished to the Administrative Agent consolidated
financial statements for the Parent and its consolidated Subsidiaries for the period ended June 30, 2021. Such financial statements present fairly, in all material respects, the financial position and results of operations and cash
flows of the Obligors as of such dates and for such periods substantially in accordance with IFRS, subject to quarterly or year-end adjustments and the absence of footnotes. As of June 30, 2021, no
Obligor has any material contingent liabilities or liabilities for taxes, long-term lease or unusual forward or long-term commitments not disclosed in the aforementioned financial statements.
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(b) Projections. On and as of the Closing Date, the Projections are based on good faith estimates and
assumptions made by the management of the Obligors; provided, the Projections are not to be viewed as facts and that actual results during the period or periods covered by the Projections may
differ from such Projections and that the differences may be material; provided, further, as of the Closing Date, the management of the Obligors believes that the Projections are reasonable and
attainable.
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(c) No Material Adverse Change. Since December 31, 2020, no event, circumstance or change has occurred
that has caused or evidences, either in individually or in the aggregate, a Material Adverse Change.
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(a) Property Generally. Each Obligor 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 Product Assets, subject only to Permitted Liens and except as would not reasonably be expected to materially interfere with its ability to conduct
its business as currently conducted or to utilize such properties for their intended purposes. Schedule 7.05(a) lists, with respect to each Obligor, owned real property as of the Closing Date.
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(b) Intellectual Property.
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(i) Schedule 7.05(b) lists, with respect to each Obligor, all United States and foreign registrations of and applications for Patents, Trademarks, Copyrights,
and Industrial Designs that are Obligor Intellectual Property as of the Closing Date, including the applicable jurisdiction, registration or application number and date, as applicable thereto, a designation as to whether such Obligor
Intellectual Property is Material Intellectual Property, and a designation as to whether it is licensed or owned by such Obligor.
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(ii) Each Obligor (A) owns or possesses all legal equitable rights, title and interest in and to the Material Intellectual Property designated on Schedule
7.05(b) as being owned by such Obligor and (B) has the right to use the Material Intellectual Property licensed to such Obligor, in each case with good and marketable title, free and clear or any Liens or Claims of any kind other than
Permitted Liens, in each case, except as described in Schedule 7.05(b).
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(iii) To each Obligor’s knowledge, the Material Intellectual Property does not violate any license or infringe any
valid and enforceable Intellectual Property right of another.
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(iv) Other than with respect to the Material Agreements, or as permitted by this Agreement, the Obligors have not assigned or otherwise transferred ownership of,
or agreed to assign or otherwise transfer ownership of, any Material Intellectual Property, in whole or in part, to any Person who is not an Obligor.
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(v) Other than as set forth on Schedule 7.05(b), the Obligors have not received any written communications, nor is
there any pending or, to each Obligor’s knowledge, threatened action in writing, suit, proceeding or Claim in writing by another, alleging that any of the Obligors has violated, infringed, diluted or misappropriated any Intellectual
Property of another.
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(vi) There is no pending or, to any Obligor’s knowledge, threatened action in writing, suit, proceeding or Claim in writing by another: (A) challenging an
Obligor’s rights in or to any Material Intellectual Property owned by such Obligor; or (B) challenging the validity, enforceability or scope of any Material Intellectual Property owned by an Obligor.
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(vii) Each Obligor has taken commercially reasonable precautions to protect the secrecy, confidentiality and value of the Material Intellectual Property (including
without limitation, by requiring that all current and former Key Employees and all consultants with access to Material Intellectual Property execute written confidentiality and Invention assignment Contracts).
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(viii) Each current Key Employee has signed a written agreement assigning to the applicable Obligor all Intellectual
Property rights that are related to such Obligor’s business as now conducted and as presently proposed to be conducted and confidentiality provisions protecting trade secrets and confidentiality information of the Obligors.
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(ix) Each Obligor has complied in all material respects with the terms of each Material Agreement pursuant to which Intellectual Property has been licensed to the
Obligors (which terms shall include, but not be limited to, pricing and duration of the agreement).
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(x) All maintenance fees, annuities, and the like due or payable on the Patents included in the Material Intellectual Property have been timely paid or the
failure to so pay was the result of an unintentional failure to pay by the applicable Obligor, which would not reasonably be expected to result in a Material Adverse Change. All documents and instruments necessary to register or apply for
or renew registration of all Material Intellectual Property have been validly executed, delivered and filed in a timely manner with the United States Patent and Trademark Office, the United States Copyright Office, the Canadian
Intellectual Property Office, or the equivalent office in any other applicable jurisdiction, as applicable.
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(xi) To each Obligor’s knowledge, (A) there are no material defects in any of the Patents and (B) 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.
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(xii) To each Obligor’s knowledge, no Obligor has received any written notice asserting that any Patent included in the Material Intellectual Property is invalid,
unpatentable or unenforceable and, to each Obligor’s knowledge, no Obligor has engaged in any conduct, or omitted to perform any necessary act, the result of which would invalidate or render unpatentable or unenforceable any such Patent,
except as described in Schedule 7.05(b).
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(xiii) To the knowledge of each Obligor, no third party is materially infringing upon or misappropriating any Material Intellectual Property, and no counterparty is
materially violating any license or agreement with such Obligor relating to any Material Intellectual Property.
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(a) Litigation. There is no litigation, investigation or enforcement proceeding pending or threatened in
writing with respect to any Obligor or any of its Subsidiaries by or before any Governmental Authority or arbitrator (i) that either individually or in the aggregate would reasonably be expected to have a Material Adverse Effect or (ii)
that involves this Agreement or the Transactions.
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(b) Environmental Matters. The operations and the real Property of the Obligors and their Subsidiaries
comply with all applicable Environmental Laws, except to the extent the failure to so comply, either individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect. To each Obligor’s knowledge,
there have been no conditions, occurrences or release of Hazardous Materials which would reasonably be expected to have a Material Adverse Effect.
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(c) Labor Matters. No Obligor has engaged in unfair labor practices and there is no pending or, to any
Obligor’s knowledge, threatened in writing labor actions, disputes, grievance or arbitration proceedings involving the employees of any Obligor, in each case that would reasonably be expected to have a Material Adverse Effect. There is
no material strike or work stoppage in existence or threatened in writing against any Obligor and to the knowledge of such Obligor, no union organization activity is taking place.
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(a) Each Obligor and each of its Subsidiaries is in compliance with all Requirements of Law (including Healthcare Laws and Environmental Laws) and all
Contracts binding upon it or its Property, except (other than with respect to Material Intellectual Property) where the failure to do so, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse
Effect.
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(b) Without limiting the generality of the foregoing:
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(i) To the best of each Obligor’s knowledge, any financial relationships between or among the Borrowers or any other
Obligor, on the one hand, and any Person who is in a position to refer patients or other health care business to the Borrowers or any other Obligor (collectively a “Referral Source”), on the other
hand, (A) comply in all material respects with all applicable Healthcare Laws, (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 the Borrowers or any other Obligor, in any manner that could reasonably be expected to constitute a violation of a state, federal or foreign health care fraud and abuse
law. No Obligor directly or indirectly, has guaranteed a loan, made a payment toward a loan or otherwise subsidized a loan for any Referral Source including, without limitation, any loans related to financing the Referral Source’s
ownership, investment or financial interest in any Obligor
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(ii) Except as disclosed in Schedule 7.19(e), all Products have been developed, tested, manufactured, distributed,
marketed and sold in compliance in all material respects with (A) all applicable FDA Laws, including, without limitation, all requirements relating to pre-market notification, good manufacturing practices/quality system regulations (21
CFR Part 820), labeling, advertising, record-keeping, and adverse event reporting; and (B) all applicable Health Canada Laws.
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(iii) The Borrowers and each other Obligor are in compliance in all material respects with the Physician Payments Sunshine Act (Section 6002 of the Affordable Care
Act of 2010) and its implementing regulations and any applicable state disclosure and transparency laws.
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(c) To the extent any Obligor shall participate or receive reimbursement from any Federal Health Care Program or other third-party payor program as of any date
subsequent to the Closing Date, (i) each Obligor shall have the requisite provider number or authorization necessary to bill any third-party payor program in which it participates and (ii) (i) there shall be no audits, inquiries,
adjustments, appeals or recoupment efforts by any third-party payor programs of or against any Obligor with respect to any prior Claims, reports or billings that, individually or in the aggregate, would reasonably be expected to result in
a Material Adverse Effect.
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(d) Each Obligor will maintain and adhere to, in all material respects, a reasonable compliance program designed to promote compliance with and to detect,
prevent and address violations of all material Healthcare Laws (a “Health Care Compliance Program”). No Obligor is aware of any complaints from any employees, independent contractors, vendors,
physicians, customers, patients or other persons that could reasonably be considered to indicate a violation of Healthcare Laws which would be reasonably expected to result individually, or in the aggregate, in a Material Adverse Effect.
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(a) Investment Company Act. No Obligor is an “investment company” as defined in, or subject to regulation
under, the Investment Company Act of 1940.
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(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 Term Loan will be used to buy or carry
any Margin Stock in violation of Regulation T, U or X.
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(a) With respect to all Products, each Obligor holds either directly or through licensees and agents, all
Regulatory Approvals and Permits necessary or required for each Obligor to conduct all material Product Development and Commercialization Activities with respect to the Products.
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(b) Set forth on Schedule 7.19(b) is a complete and accurate list as of the date hereof of all Regulatory Approvals referred to in clause (a) above that are
with the FDA, WHO, CE-Mark EMA, HPRA, Health Canada, ANVISA or any other similar Regulatory Authority and identifying the Product related to such Regulatory Approval. All such Regulatory Approvals are (i) legally and/or beneficially owned
exclusively by the Obligor identified on Schedule 7.19(b), free and clear of all Liens other than Permitted Liens, (ii) validly registered and on file with the applicable Regulatory Authority, in material compliance with all registration,
filing and maintenance requirements (including any fee requirements) thereof, and (iii) in good standing, valid and enforceable with the applicable Regulatory Authority. All required and material notices, registrations and listings,
supplemental applications or notifications, reports (including annual reports, field alerts, Device reports or other reports of adverse experiences) and all other required and material filings with respect to the Products or any related
Product Development and Commercialization Activities have been filed with the FDA, WHO, CE-Mark EMA, HPRA, Health Canada, ANVISA and all other applicable Governmental Authorities.
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(c) (i) All material regulatory filings required by any Regulatory Authority or in respect of any Regulatory Approval or Product Authorization with respect to
any Product or any Product Development and Commercialization Activities have been made, and all such filings are complete and correct in all material respects and have complied in all material respects with all applicable Requirements of
Law, (ii) all clinical and pre-clinical trials, if any, of investigational Products have been and are being conducted by each Obligor according to all applicable Requirements of Law in all material respects along with appropriate
monitoring of clinical investigator trial sites for their compliance, and (iii) each Obligor has disclosed to the Lenders all such material regulatory filings and, to the extent requested by any Lender, any written material communications
relating thereto between representatives of each Obligor and any Regulatory Authority.
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(d) Each Obligor and, to each Obligor’s knowledge, each of its agents are in compliance in all material respects
with all applicable statutes, rules and regulations (including all Regulatory Approvals and Product Authorizations) of all applicable Governmental Authorities, including the FDA, WHO, CE-Mark EMA, HPRA, Health Canada, ANVISA and all other
Regulatory Authorities, with respect to each Product and all Product Development and Commercialization Activities related thereto. Each Obligor has and maintains in full force and effect all the necessary and requisite Regulatory
Approvals and Product Authorizations for its Products. Each Obligor is in compliance in all material respects with all applicable registration and listing requirements set forth in all applicable FDA, WHO, CE-Mark EMA, HPRA, Health
Canada, ANVISA or Laws or equivalent regulation of each other Governmental Authority having jurisdiction over such Person. Each Obligor adheres in all material respects to all applicable regulations of all Regulatory Authorities with
respect to its Products and all Product Development and Commercialization Activities related thereto.
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(e) Except as set forth on Schedule 7.19(e), (i) no Obligor has received from any Regulatory Authority any notice of adverse findings with respect to any
Product or any Product Development and Commercialization Activities related thereto, including any FDA Form 483 inspectional observations, notices of violations, warning letters, criminal proceeding notices under Section 305 of the
FD&C Act, or any other similar communication from any Regulatory Authority, (ii) there have been no seizures conducted or, to each Obligor’s knowledge, threatened by any Regulatory Authority with respect to any Product, and no
recalls, market withdrawals, field notifications, notifications of misbranding or adulteration or safety alerts conducted, requested or, to any Obligor’s knowledge, threatened by any Regulatory Authority with respect to any Product, and
no recalls, market withdrawals, field notifications, notifications of misbranding or adulteration or safety alerts have been conducted, requested or, to each Obligor’s knowledge, threatened by any Regulatory Authority relating to any
Product, and (iii) no Obligor has received any written notification that remains unresolved from the FDA, WHO, CE-Mark EMA, HPRA, Health Canada, ANVISA or any other Regulatory Authority indicating any breach or violation of any applicable
Product Authorization or Regulatory Approval, including that any Product is misbranded or adulterated as defined in the FD&C Act or the rules and regulations promulgated thereunder, in each case of (i), (ii) and (iii) that has had, or
could reasonably be expected to have, a Material Adverse Effect.
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(f) Neither any Obligor nor, to any Obligor’s knowledge, any officer, employee or agent thereof, has made an
untrue statement of a material fact or fraudulent statements to the FDA, WHO, CE-Mark EMA, HPRA, Health Canada, ANVISA or any other Regulatory Authority, failed to disclose a material fact required to be disclosed to the FDA, WHO, CE-Mark
EMA, HPRA, Health Canada, ANVISA or any other Regulatory Authority, or committed an act, made a statement, or failed to make a statement that, at the time such disclosure was made (or was not made), would reasonably be expected to provide
a basis for the FDA, WHO, CE-Mark EMA, HPRA, Health Canada, ANVISA or any other Regulatory Authority to invoke its policy respecting Fraud, Untrue Statements of Material Facts, Bribery and Illegal Gratuities, set forth in 56 Fed. Reg.
46191 (September 10, 1991) or any similar policy.
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(g) No Obligor has received any written notice that the FDA, WHO, CE-Mark EMA, HPRA, Health Canada, ANVISA or any other applicable Regulatory Authority has
commenced or initiated, or, to the knowledge of any such Obligor, threatened to commence or initiate, any action to withdraw any Regulatory Approval or Product Authorization or requested the recall of any Products or commenced or
initiated or, to the knowledge of such Obligor, threatened to commence or initiate, any action to enjoin any Product Development and Commercialization Activities of such Obligor.
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(h) The clinical, preclinical, safety and other studies and tests conducted by or on behalf of or sponsored by each Obligor, or in respect of which any
Products or Product candidates under development have participated, were (and if still pending, are) being conducted materially in accordance with standard medical and scientific research procedures and all applicable Product
Authorizations. Each Obligor has operated within, and currently is in compliance in all material respects with, all applicable Laws (including, without limitation, all applicable Health Canada Laws), Product Authorizations and Regulatory
Approvals, as well as the rules and regulations of the FDA, Health Canada and each other Regulatory Authority. No Obligor has received any notices or other correspondence from the FDA, Health Canada, or any other Regulatory Authority
requiring the termination or suspension of any clinical, preclinical, safety or other studies or tests used to support regulatory clearance of, or any Product Authorization or Regulatory Approval for, any Product.
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(i) No material debarment or exclusionary Claims, actions, proceedings or investigations in respect of any Obligor’s business is pending, or to such Obligor’s
knowledge, threatened in writing against such Obligor or its officers, employees or agents. No Obligor or, to such Obligor’s knowledge, any officer, employee or agent of such Obligor, has been convicted of any crime or engaged in any
conduct that would reasonably be expected to result in a debarment or exclusion (i) Section 335a of the FD&C Act or (ii) any similar applicable Law.
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(a) within forty-five (45) days of the end of each fiscal Quarter, a Flash Financial Report.
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(b) as soon as available and in any event within fifty-five (55) days after the end of the first and third fiscal quarters, sixty (60) days after the end of
the second fiscal quarter and ninety (90) days after the end of the fiscal year, the consolidated balance sheets of Parent and its Subsidiaries as at the end of such fiscal quarter and the related consolidated statements of income,
stockholders’ equity and cash flows of Parent and its Subsidiaries for such fiscal quarter and for the period from the beginning of the then current fiscal year to the end of such fiscal quarter, setting forth in each case in comparative
form the corresponding figures for the corresponding periods of the previous fiscal year and the corresponding figures from the Financial Plan for the current fiscal year, all in reasonable detail together with (i) a certificate of a
Responsible Officer of the Administrative Borrower stating that such financial statements fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of
Parent and its Subsidiaries for the period ended on such date and have been prepared substantially in accordance with IFRS consistently applied, subject to changes resulting from normal quarterly or year-end adjustments and except for the
absence of footnotes and (ii) a management’s discussion and analysis of the financial condition and results of operations, including Parent and its Subsidiaries’ liquidity and capital resources; 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” so long as such filings include quarterly income statements,
balance sheets and cash flow statements.
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(c) as soon as available and in any event within one hundred twenty (120) days after the end of each fiscal year, the consolidated balance sheets of Parent and
its Subsidiaries as of the end of such fiscal year, and the related consolidated statements of income, shareholders’ equity and cash flows of Parent and its Subsidiaries for such fiscal year, setting forth in each case in comparative form
the corresponding figures for the previous fiscal year and the corresponding figures from the Financial Plan for the fiscal year covered by such financial statements, prepared substantially in accordance with IFRS consistently applied,
all in reasonable detail accompanied by (i) a report and opinion thereon of Grant Thornton or another firm of independent certified public accountants of recognized national standing, which report and opinion shall be prepared in
accordance with generally accepted auditing standards and shall not be subject to any “going concern” or like qualification or exception audit (other than solely with respect to, or resulting solely from the upcoming Stated Maturity Date
occurring within one year from the time such report is delivered) or any qualification or exception as to the scope of such audit or related to the maturity of the Transactions and (ii) a management’s discussion and analysis of the
financial condition and results of operations, including the Obligors’ liquidity and capital resources; provided that, so long as Parent is a Publicly Reporting Company, Parent’s filing of an
Annual Report on Form 20-F with the SEC shall be deemed to satisfy the requirements of this Section 8.01(c) on the date on which such report is first available via the SEC’s EDGAR system or a successor system related thereto;
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(d) concurrently with the delivery of the reports described in Section 8.01(b) and (c), and within thirty (30) days after the end of each month which does not
end at the end of a fiscal year or fiscal quarter of Parent, a compliance certificate of a Responsible Officer of the Administrative Borrower as of the end of the applicable accounting period (which delivery may, unless a Lender requests
executed originals, be by electronic communication including email and shall be deemed to be an original authentic counterpart thereof for all purposes) in the form of Exhibit E (a “Compliance
Certificate”) which, for purposes of clarification, shall (i) confirm the Obligors’ compliance with Section 8.15 and (ii) for each month end that coincides with the end of a fiscal quarter or fiscal year of Parent, (A) confirm
the Obligors’ compliance with Section 8.11 and Section 8.16, (B) notify the Administrative Agent if a Subsidiary which qualified as an Immaterial Foreign Subsidiary at the time of the delivery of the previous Compliance Certificate ceases
to qualify as an Immaterial Foreign Subsidiary, (C) state the representations and warranties made by the Obligors in Article 7 are true in all material respects on and as of the date thereof; provided that
to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided further that
any representation and warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects, (D) confirm that no Default
or Event of Default is continuing (and if a Default or Event of Default has occurred and is continuing state the proposed actions that the Obligors intend to take in connection with such Default or Event of Default), (E) provide a copy of
any new Material Agreement and (F) provide updated Schedules (if any) to this Agreement;
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(e) promptly, and in any event within five (5) Business Days after receipt thereof by an Obligor, copies of each notice or other correspondence received from
any securities regulator or exchange to the authority of which an Obligor is subject concerning any investigation or possible investigation or other inquiry by such agency regarding financial or other operational results of such Obligor;
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(f) upon any renewal or replacement, the information regarding insurance maintained by the Obligors as and when required under Section 8.05;
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(g) promptly following the Lenders’ written request at any time, proof of the Obligors’ compliance with Section 8.15, which may include statements showing the
current balance of each account of the Obligors holding Unrestricted Cash necessary to establish compliance with Section 8.15;
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(h) within ten (10) days of delivery, copies of all periodic reports distributed by Parent to its shareholders generally; provided
that (i) any such material may be redacted by Parent to exclude information relating to the Loan Documents or the Lenders and (ii) the Lenders shall not be entitled to receive statements, reports and notices relating to topics that
(A) are subject to attorney-client privilege or (B) present a conflict of interest for the Lenders; provided that, so long as Parent is a Publicly Reporting Company, Parent’s filing of any such
material with the SEC shall be deemed to satisfy the requirements of this Section 8.01(h) on the date on which such report is first available via the SEC’s EDGAR system or a successor system related thereto;
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(i) a financial forecast for Parent and its Subsidiaries for each fiscal year, including forecasted balance sheets, statements of income and cash flows of the
Borrower and its Subsidiaries (the “Financial Plan”), all of which shall be prepared on a consolidated basis and delivered not later than March 31 of such fiscal year;
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(j) within five (5) Business Days following any Lender’s written request, certification that such Obligor is not
a passive foreign investment company (“PFIC”) within the meaning of Sections 1291 through 1297 of the Code, or, if such Obligor determines that it is a PFIC, such information as would allow the
Lender to make a qualified electing fund election with respect to the Equity Interest of the Obligor;
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(k) so long as Parent is a Publicly Reporting Company, the Administrative Borrower shall within five (5) Business
Days of Parent filing, provide access (via posting and/or links on Parent’s web site) to all reports on Form 20-F and Form 6-K filed with the SEC, any Governmental Authority succeeding to any or all of the functions of the SEC or with any
national securities exchange; and within five (5) Business Days of filing, provide notice and access (via posting and/or links on Parent’s web site) to all reports filed with the SEC, and copies of (or access to, via posting and/or links
on Parent’s web site) all other reports, proxy statements and other materials filed by Parent with the SEC, any Governmental Authority succeeding to any of the functions of the SEC or with any national securities exchange; and
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(l) during the time period beginning on the Second Amendment Effective Date and ending on May 1, 2023, currently with the delivery of Compliance Certificates
described in Section 8.01(d), monthly cash flow projections of Parent and its Subsidiaries.
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(a) promptly after the occurrence of any Default or Event of Default;
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(b) within three (3) Business Days after the occurrence of any Casualty Event with respect to any Obligor’s Property;
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(c) (i) prior to the execution of a definitive agreement for any proposed Acquisition by any Obligor that would reasonably be expected to result in
environmental liability under Environmental Laws in excess of $250,000, and (ii) in each case, to the extent that any of the following would reasonably be expected to result in liability in excess of $500,000: (A) spillage, leakage,
discharge, disposal, leaching, migration or release of any Hazardous Material required to be reported to any Governmental Authority under applicable Environmental Laws, and (B) all actions, suits, Claims, notices of violation, hearings,
investigations or proceedings pending, or threatened in writing against or affecting any Obligor or with respect to the ownership, use, maintenance and operation of their respective businesses, operations or properties, relating to
Environmental Laws or Hazardous Material;
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(d) within three (3) Business Days of obtaining written notice or knowledge thereof, the assertion of any environmental matter by any Person in writing
against, or with respect to the activities of, any Obligor and any alleged violation of or non-compliance with any Environmental Laws or any Permits, licenses or authorizations, in each case, which would reasonably be expected to involve
damages in excess of $250,000 other than any environmental matter or alleged violation that, if adversely determined, would not (either individually or in the aggregate) have a Material Adverse Effect;
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(e) within three (3) Business Days of obtaining notice to an Obligor of the filing or commencement of any action, suit or proceeding by or before any
arbitrator or Governmental Authority against or directly affecting any Obligor, in each case, that would reasonably be expected to result in a Material Adverse Effect;
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(f) (i) on or prior to any filing by any ERISA Affiliate of any notice of intent to terminate any Title IV Plan, a copy of such notice and (ii) promptly, and
in any event within ten (10) days, after any Responsible Officer of any ERISA Affiliate knows or has reason to know that a request for a minimum funding waiver under Section 412 of the Code has been filed with respect to any Title IV Plan
or Multiemployer Plan, a notice (which may be made by telephone if promptly confirmed in writing) describing such waiver request and 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;
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(g) within ten (10) Business Days of obtaining written notice or knowledge thereof, (i) the termination of any Material Agreement other than in the Ordinary
Course of Business pursuant to its terms; (ii) the receipt by any Obligor of a written notice under any Material Agreement (and a copy thereof) asserting a default by such Obligor where such alleged default would permit such counterparty
to terminate such Material Agreement; (iii) the entering into any new Material Agreement by an Obligor (and a copy thereof); or (iv) any amendment to a Material Agreement that would be materially adverse to the Lenders (and a copy
thereof) (which includes, but is not limited to, any amendments to provisions relating to pricing and term); provided that notices required under this subsection (g) may be delivered with the
next Compliance Certificate unless any of the foregoing events would reasonably be expected to have a Material Adverse Effect;
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(h) within three (3) Business Days of obtaining written notice or knowledge thereof, any product recalls, safety
alerts, corrections, withdrawals, marketing suspensions, removals or the like conducted, to be undertaken or issued by any Obligor, whether or not at the request, demand or order of any Governmental Authority or otherwise with respect to
any Product;
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(i) within five (5) Business Days of obtaining written notice or knowledge thereof, any infringement or other violation by any Person of any Obligor
Intellectual Property that would reasonably be expected to result in a Material Adverse Effect;
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(j) within five (5) Business Days of obtaining written notice or knowledge thereof, a material licensing agreement or arrangement entered into by any Obligor
in connection with any infringement or alleged infringement of the Intellectual Property of another Person that could reasonably be likely to result in a Material Adverse Effect;
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(k) within five (5) Business Days of obtaining written notice or knowledge thereof, any written Claim by any Person that the conduct of any Obligor’s business,
including the development, manufacture, use, sale or other commercialization of any Product, infringes any Intellectual Property of such Person, except to the extent any such Claim would not reasonably be expected to result in a Material
Adverse Effect;
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(l) the distribution of the reports and notices as and when required by the Security Documents;
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(m) within thirty (30) days of the date thereof, or, if earlier, on the date of delivery of any financial statements pursuant to Section 8.01, notice of any
material change in accounting policies or financial reporting practices by the Obligors;
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(n) within thirty (30) days after the occurrence thereof, notice of any labor controversy resulting in or
threatening to result in any strike, work stoppage, boycott, shutdown or other labor disruption against or involving an Obligor that is reasonably expected to have a Material Adverse Effect;
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(o) within five (5) Business Days of any other development that results in, or would reasonably be expected to result in, a Material Adverse Effect;
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(p) within five (5) Business Days of the failure to pay any Taxes or obligations in accordance with Section 8.04;
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(q) concurrently with the delivery of financial statements under Section 8.01, after the date hereof and during such prior fiscal year, the creation or other
acquisition of any Intellectual Property by any Obligor that is registered or becomes registered or is the subject of an application for registration with the United States Copyright Office, the United States Patent and Trademark Office
or the Canadian Intellectual Property Office, as applicable, or with any other equivalent foreign Governmental Authority; and
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(r) five (5) Business Days prior to any change to any Obligor’s ownership of Deposit Accounts, Securities Accounts and Commodity Accounts, by delivering to
the Lenders an updated Schedule 7 to the Security Agreements setting forth a complete and correct list of all such accounts as of the date of such change.
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(a) Each Obligor will do or cause to be done all things necessary to preserve, renew and keep in full force and effect its legal existence; provided that the foregoing shall not prohibit any merger, amalgamation, plan of arrangement, consolidation, liquidation or dissolution permitted under Section 9.03.
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(b) Each Obligor shall maintain and preserve all rights, licenses, permits, privileges and franchises material to the conduct of its business, and maintain and
preserve all of its assets and properties, including all Product Assets, necessary to the conduct of its business in good working order and condition, ordinary wear and tear and damage from casualty or condemnation excepted.
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(c) Each Obligor shall use commercially reasonable efforts to cause each new Key Employee and each contractor with
access to material Obligor Intellectual Property to execute and deliver a customary confidentiality, non-disclosure and Intellectual Property assignment agreement that includes a waiver of moral rights to the extent permitted by Law and
such agreements are customary in the applicable jurisdiction.
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(d) Parent shall maintain sufficient authorized but unissued share capital in Parent to satisfy in full, without the need for the passing of any further
resolutions of its shareholders, the outstanding rights represented by the Warrant Certificate.
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(a) Each Obligor will, and will cause each of its Subsidiaries to, (i) comply in all material respects with all Requirements of Law (including Healthcare Laws
and Environmental Laws) and (ii) comply in all material respects with all terms of outstanding Indebtedness and all Material Agreements, except (other than with respect to Material Intellectual Property) where the failure to do so,
individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect.
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(b) Each Obligor will maintain all records required to be maintained by a Governmental Authority or otherwise under
any applicable Healthcare Law, except where failure to do so, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect.
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(c) Each Obligor will maintain a Health Care Compliance Program, which will be reviewed and updated annually, as necessary.
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(a) Subsidiaries. Each Obligor will take such action, and will cause each of its Subsidiaries to take such
action, from time to time as shall be necessary to ensure that all Subsidiaries are “Guarantors” hereunder. Without limiting the generality of the foregoing, in the event that any Obligor or any of its Subsidiaries shall form or acquire
any new Subsidiary, it and its Subsidiaries will promptly and in any event within fifteen (15) days (or such longer time as consented to by the Administrative Agent in writing) of the formation or Acquisition of such Subsidiary:
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(i) cause such new Subsidiary to become a “Guarantor” hereunder, and a “Grantor” under the Security Documents, pursuant to a Guarantee Assumption Agreement and cause such new
Subsidiary to become an “Obligor” under the Intercompany Subordination Agreement and the Luxembourg Subsidiary Intercompany Subordination Agreement;
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(ii) take such action or cause such Subsidiary to take such action (including delivering originals of any certificated Equity Interests of such Subsidiary,
together with original, executed, undated transfer powers executed in blank and originals of any intercompany notes with undated endorsements executed in blank) as shall be necessary to create and perfect valid and enforceable first
priority (subject to Permitted Liens) Liens on substantially all of the personal Property of such new Subsidiary as collateral security for the obligations of such new Subsidiary hereunder;
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(iii) to the extent that the parent of such Subsidiary is not a party to the Security Documents or has not otherwise pledged Equity Interests in its Subsidiaries
in accordance with the terms of the Security Documents and this Agreement, cause the parent of such Subsidiary to execute and deliver a pledge agreement in favor of the Lenders, in respect of all outstanding issued shares of such
Subsidiary; and
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(iv) deliver such proof of corporate action, incumbency of officers, opinions of counsel and other documents as is consistent with those delivered by each Obligor
pursuant to Section 6.01 and Section 6.02 or as the Majority Lenders shall have requested;
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(b) Further Assurances. Each Obligor will take such action from time to time as shall reasonably be
requested in writing by the Majority Lenders to effectuate the purposes and objectives of this Agreement. Without limiting the generality of the foregoing, it will, and will cause each Person that is required to be a Guarantor to, take
such action from time to time (including executing and delivering such assignments, security agreements, control agreements and other instruments) as shall be reasonably requested in writing by the Majority Lenders to create, in favor
of the Lenders, perfected security interests and Liens (subject to Permitted Liens) in substantially all of the personal Property 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.
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(c) Intellectual Property. In the event that any Obligor creates, develops or acquires Obligor Intellectual
Property during the term of this Agreement, then the provisions of this Agreement shall automatically apply thereto and any such Obligor Intellectual Property shall automatically 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 (except that any representations or warranties of any Obligor shall apply to any such Obligor Intellectual
Property only from and after the date, if any, subsequent to such acquisition that such representations and warranties are brought down or made anew as provided herein). In the event that any Obligor holds or acquires Obligor
Intellectual Property during the term of this Agreement, then, upon the request of the Administrative Agent, such Obligor shall take any action as shall be reasonably necessary and reasonably requested by the Administrative Agent to
ensure that the provisions of this Agreement and the Security Agreements shall apply thereto and any such Obligor Intellectual Property shall constitute part of the Collateral under the Security Documents.
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TWELVE-MONTH PERIOD
ENDED
|
MINIMUM NET REVENUE
|
December 31, 2021
|
$91,213,000
|
March 31, 2022
|
$82,296,000
|
June 30, 2022
|
$74,166,000
|
September 30, 2022
|
$71,413,000
|
December 31, 2022
|
$73,307,000
|
March 31, 2023
|
$78,392,000
|
June 30, 2023
|
$83,484,000
|
September 30, 2023
|
$87,901,000
|
December 31, 2023
|
$92,305,000
|
March 31, 2024
|
$96,541,000
|
TWELVE-MONTH PERIOD
ENDED
|
MINIMUM NET REVENUE
|
June 30, 2024
|
$100,623,000
|
September 30, 2024
|
$104,140,000
|
December 31, 2024
|
$108,238,000
|
March 31, 2025
|
$112,098,000
|
June 30, 2025
|
$115,410,000
|
September 30, 2025
|
$119,319,000
|
|
(a) maintain all Deposit Accounts, Securities Accounts, Commodity Accounts and lockboxes (other than Excluded Accounts) with a bank or financial institution
that has either (i) other than in respect of any such account charged pursuant to the Irish Debenture, executed and delivered to the Administrative Agent an account control agreement (provided that, for greater certainty, if under the
applicable laws of any Canadian jurisdiction control over Deposit Accounts is not available, then an account control agreement shall be deemed to constitute a springing blocked account or springing cash dominion agreement in respect of
such Deposit Accounts) or (ii) in respect of any such account charged pursuant to the Irish Debenture, executed and delivered to the Administrative Agent an acknowledgment to the notice of assignment delivered to such bank or financial
institution by the relevant Irish Obligor pursuant to the Irish Debenture, in each case in form and substance reasonably acceptable to the Administrative Agent (each such Deposit Account, Securities Account, Commodity Account and lockbox,
a “Controlled Account”);
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(b) deposit promptly, and in any event no later than seven (7) Business Days after the date of receipt thereof, all
cash, checks, drafts or other similar items of payment relating to or constituting payments greater than $75,000 in the aggregate at any time made in respect of any and all accounts and other rights and interests into Controlled Accounts;
and
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(c) in order to segregate and to facilitate perfection of Administrative Agent’s security interest in funds received by any Obligor from any Federal Health
Care Programs, the applicable Obligor shall, (i) within sixty (60) days after the Funding Date (or such later date as may be agreed to by Administrative Agent), or (ii) with respect to an Obligor’s future participation in any Federal
Health Care Program, prior to such Obligor’s receipt of payments exceeding $50,000 in any month from Federal Health Care Programs, notify all Government Authorities making any payments under any Federal Health Care Program to make any
such payments only to one or more Segregated Health Care Accounts. No Obligor shall deposit any funds to a Segregated Health Care Account or direct or permit any other Person to deposit any funds to a Segregated Health Care Account, other
than payments received from Federal Health Care Programs. The Obligors shall have until the date that is ninety (90) days following (i) the Funding Date (or such later date as may be agreed to by Administrative Agent), or (ii) the date
the applicable Obligor begins receiving payments from any Federal Health Care Program, to cause all amounts deposited into the Segregated Health Care Accounts to be automatically swept on a daily basis to a Controlled Account pursuant to
a Sweep Agreement. Any such Sweep Agreement will require such depository bank to waive all of its existing and future rights of recoupment and set-off and banker’s lien against any Segregated Health Care Accounts, but shall permit such
depository bank to maintain its existing and future rights of recoupment and set-off and banker’s lien against any Controlled Account.
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(a) the Obligations;
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(b) Permitted Indebtedness and Permitted Refinancings thereof; provided,
that the aggregate principal amount of Permitted Indebtedness on the Closing Date not listed on Schedule 7.13A shall not exceed $500,000;
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(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 Business after the Closing Date;
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(d) Indebtedness consisting of Guarantees resulting from endorsement of negotiable instruments for collection by an Obligor or any of its Subsidiaries in the
Ordinary Course of Business;
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(e) Indebtedness in the form of intercompany receivables and payables: (i) among Obligors; (ii) among Immaterial
Foreign Subsidiaries; and (iii) among Immaterial Foreign Subsidiaries and an Obligor; provided that (x) all additional liabilities from an Obligor to an Immaterial Foreign Subsidiary (other than
liabilities from an Obligor to the Brazilian Subsidiary) pursuant to clause (iii) arising after the Closing Date, together with the Investments in Immaterial Foreign Subsidiaries permitted pursuant to Section 9.05(m), made after the
Closing Date, shall in an aggregate amount not exceed $1,000,000 plus interest accrued thereon and (y) until such time as the Brazilian Subsidiary becomes a “Guarantor” hereunder, and a “Grantor” under the Security Documents, additional
liabilities from an Obligor to the Brazilian Subsidiary, together with the Investments in the Brazilian Subsidiary permitted pursuant to Section 9.05(l) made after the Closing Date, shall in an aggregate amount not exceed $1,500,000 per
fiscal year plus interest accrued thereon; provided further that all such intercompany liabilities pursuant to clause (iii) shall be unsecured and subordinated in right of payment to the payment
in full of the Obligations pursuant to the terms of the Intercompany Subordination Agreement;
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(f) Indebtedness constituting of deposits or prepayments received from customers in the ordinary course of business;
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(g) Guarantees by an Obligor of Indebtedness of any other Obligor;
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(h) Purchase money Indebtedness and Capital Lease Obligations; 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, (ii) in the case of purchase money Indebtedness, such Indebtedness shall constitute at least 75% of the
aggregate consideration paid with respect to such asset and (iii) the aggregate outstanding principal amount of such Indebtedness incurred after the Closing Date does not exceed $1,500,000 at any time;
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(i) unsecured workers’ compensation Claims, payment obligations in connection with health, disability or other types of social security benefits,
unemployment or other insurance obligations, reclamation and statutory obligations, in each case incurred in the Ordinary Course of Business;
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(j) Indebtedness under Hedging Agreements permitted pursuant to Section 9.05(f);
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(k) Indebtedness approved in advance in writing by the Majority Lenders;
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(l) Indebtedness of the Obligors and their Subsidiaries with respect to overdrafts, or corporate credit cards not to exceed $750,000 at any time outstanding;
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|
(m) Indebtedness incurred in connection with letters of credit, entered into in the Ordinary Course of Business,
that are secured solely by cash or cash equivalents and issued on behalf of the Borrower in an aggregate amount outstanding not to exceed $2,000,000 at any time;
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(n) other unsecured Indebtedness incurred after the Closing Date in an aggregate amount not to exceed $2,500,000;
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(o) Indebtedness in the form of intercompany receivables and payables among the Luxembourg Subsidiary and the Obligors; provided
that (i) the aggregate amount of all such intercompany liabilities to the Luxembourg Subsidiary shall not exceed the amounts outstanding on the Funding Date (plus any accrued interest thereon) and (ii) all such intercompany
liabilities shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of the Luxembourg Subsidiary Intercompany Subordination Agreement;
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(p) subject to the completion of the Convertible Notes Funding Actions, the Convertible Notes (other than the
Outstanding Convertible Notes);
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|
(q) Indebtedness outstanding on the Closing Date and until the Funding Date under AIB Facility 1, AIB Facility 2 and AIB Facility 4;
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|
(r) Indebtedness outstanding under AIB Facility 3 in an aggregate amount not to exceed EUR (€)170,000 at any time outstanding;
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|
(s) the Outstanding Convertible Notes; and
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|
(t) Indebtedness pursuant to the Investor Convertible Note, in an amount not to exceed $20,000,000; provided that
such Indebtedness shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of the Investor Subordination Agreement.
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(a) Liens securing the Obligations;
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|
(b) any Lien on any Property of any Obligor existing on the date hereof and set forth in Schedule 7.13B; provided that
(i) no such Lien shall extend to any other Property of such Obligor and (ii) any such Lien shall secure only those obligations which it secures on the date hereof and extensions, renewals and replacements thereof that do not increase the
outstanding principal amount thereof;
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|
(c) Liens securing Indebtedness permitted under Section 9.01(h); provided that
such Liens are restricted solely to the collateral described in Section 9.01(h);
|
|
(d) Liens imposed by Law which were incurred in the Ordinary Course of Business, 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 of Business and which (i) 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 (ii) 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 substantially in accordance with IFRS;
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|
(e) Liens, pledges or deposits made in the Ordinary Course of Business in connection with bids, grant applications, Contracts, leases, appeal bonds, workers’
compensation, unemployment insurance or other similar social security legislation;
|
|
(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 IFRS shall have been made;
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|
(g) servitudes, easements, rights of way, restrictions and other similar encumbrances on real Property imposed by applicable Laws and encumbrances consisting
of zoning or building restrictions, easements, licenses, restrictions on the use of 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 materially interfere with the ordinary conduct of the business of any of the Obligors;
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|
(h) bankers’ Liens, rights of setoff and similar Liens incurred in the Ordinary Course of Business and arising in connection with the Obligors’ Deposit
Accounts or Securities Accounts held at financial institutions solely to secure payment of fees and similar costs and expenses of such financial institutions with respect to such accounts;
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(i) Liens in connection with transfers permitted under Section 9.09;
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(j) any judgment Lien or Lien arising from decrees or attachments not constituting an Event of Default;
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(k) leases or subleases of real property granted in the Ordinary Course of Business, and leases, subleases, nonexclusive licenses or sublicenses of personal
property (other than Intellectual Property) granted in the Ordinary Course of Business;
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(l) Liens in favor of customs and revenue authorities arising as a matter of law to secure the payment of custom
duties in connection with the importation of goods in the Ordinary Course of Business;
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(m) Liens on a Deposit Account of the Obligors and the cash and cash equivalents therein, in each case, securing Indebtedness described in Section 9.01(l);
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(n) Permitted Licenses solely to the extent that such Permitted License would constitute a Lien;
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(o) Liens securing Indebtedness permitted pursuant to Sections 9.01(r); and
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(p) Liens listed in Item 4 and Item 7 of Schedule 7.13B; provided that
all such Liens shall be formally discharged off of the public record on or before the date that is two (2) months following the Funding Date (or such later date as may be consented to by the Administrative Agent in its reasonable
discretion). provided that no Lien otherwise permitted under any of the foregoing Sections 9.02(b), (c), (d), (e), (g), (h), (i), (k), (l) or (m) shall apply to any Material Intellectual
Property.
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(a) enter into or consummate any transaction of merger, amalgamation, plan of arrangement, or consolidation, including without limitation, a
reverse-triangular merger, or other similar transaction or series of related transactions;
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(b) liquidate, wind up or dissolve itself (or suffer any liquidation, wind up or dissolution) (including in
connection with any division or plan of division under Delaware law or any comparable event under a different jurisdiction’s laws), except to implement the Convertible Notes Funding Actions and as permitted by Section 9.03(c)(iv); and
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(c) make or consummate any Acquisition or sell or issue any Disqualified Equity Interests except, in each case:
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(i) Investments permitted under Section 9.05;
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(ii) Permitted Acquisitions for (A) an aggregate cash consideration not to exceed $2,500,000 and (B) total consideration not to exceed $5,000,000, in each case,
for the duration of this Agreement;
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(iii) the merger, amalgamation, plan of arrangement, or consolidation of any Obligor with or into any other Obligor, provided that if a
Borrower is a party to such merger, amalgamation, plan of arrangement, or consolidation, such Borrower shall be the surviving entity;
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(iv) the merger, amalgamation, plan of arrangement, or consolidation of any Immaterial Foreign Subsidiary with or into any other Immaterial Foreign Subsidiary;
and
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(v) the liquidation, winding up or dissolution of the Subsidiaries listed in Schedule 9.03, any Immaterial Foreign Subsidiary and the Luxembourg Subsidiary.
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(a) Each Obligor will not, and will not permit any of its Subsidiaries to, engage to any material extent in any business other than the business engaged in on
the date hereof by such Obligor, or a business reasonably related, incidental or complementary thereto or reasonable extensions thereof.
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(b) Parent shall not have any material liabilities (other than liabilities to other Obligors and liabilities arising under the Loan Documents), own any
material assets (other than Investments in its Subsidiaries) or engage in any material operations or business (other than the ownership of its Subsidiaries, exercising its rights and performing its obligations under (i) the Loan
Documents, (ii) its obligations to other Obligors and (iii) Investments in Subsidiaries and activities reasonably incident to (i), (ii) and (iii)).
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(c) U.S. Holdings shall not have any material liabilities (other than liabilities to other Obligors and liabilities arising under the Loan Documents), own any
material assets (other than Investments in its Subsidiaries) or engage in any material operations or business (other than the ownership of its Subsidiaries, exercising its rights and performing its obligations under (i) the Loan
Documents, (ii) its obligations to other Obligors and (iii) Investments in Subsidiaries and activities reasonably incident to (i), (ii) and (iii)).
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(a) Investments outstanding on the date hereof and identified in Schedule 9.05(a) and any modification, replacement, renewal or extension thereof to the
extent not involving new or additional Investments;
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(b) operating Deposit Accounts with banks, Securities Accounts and Commodities Accounts;
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(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 of Business of the relevant Obligor;
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(d) Permitted Cash Equivalent Investments;
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(e) (i) Investments consisting of the ownership of the Equity Interests of its Subsidiaries, (ii) intercompany Investments by an Obligor in any other Obligor
or (iii) Investments by the Obligors and its Subsidiaries consisting of 100% of the ownership of the Equity Interests of the Person acquired in connection with a Permitted Acquisition;
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(f) Hedging Agreements entered into in the ordinary course of any Obligor’s financial planning solely to hedge
interest rate or foreign currency exchange risks (and not, in either case, for speculative purposes);
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(g) 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 of Business;
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(h) 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;
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(i) Investments permitted under Section 9.01(e), Section 9.01(o) and Section 9.03;
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(j) Investments consisting of notes receivable of, or prepaid royalties and other credit extensions, to customers and suppliers who are not Affiliates, in
the Ordinary Course of Business;
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(k) Investments consisting of (i) travel advances and employee relocation loans and other employee loans and advances in the Ordinary Course of Business, and
(ii) loans to employees, officers or directors relating to the purchase of equity securities of the Obligors pursuant to employee stock purchase plans or agreements made after the Closing Date approved by an Obligor’s Board in an
aggregate amount not to exceed $250,000 for subclauses (i) and (ii) in any fiscal year;
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(l) so long as no Default or Event of Default shall have occurred and is continuing at the time of such
Investment and until such time as the Brazilian Subsidiary becomes a “Guarantor” hereunder, and a “Grantor” under the Security Agreement, Investments by an Obligor in the Brazilian Subsidiary in an aggregate amount not to exceed
$1,500,000 in any fiscal year;
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(m) so long as no Default or Event of Default shall have occurred and is continuing at the time of such Investment,
Investments by Obligors in Immaterial Foreign Subsidiaries (other than the Brazilian Subsidiary), made after the Closing Date, in an aggregate amount not to exceed $1,000,000 in any fiscal year;
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(n) Investments by Immaterial Foreign Subsidiaries in other Immaterial Foreign Subsidiaries;
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(o) the Convertible Notes Funding Actions; and
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(p) so long as no Default or Event of Default shall have occurred and is continuing at the time of such Investment, or after giving effect thereto, other
Investments made after the Closing Date in an amount not to exceed $500,000 in any fiscal year.
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(a) dividends or distributions with respect to any Equity Interests of Parent payable solely in additional units or shares of its Qualified Equity Interests;
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(b) any Restricted Payment by an Obligor or a Subsidiary of an Obligor to an Obligor;
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(c) any purchase, redemption, retirement, or other Acquisition by Parent or any of its Subsidiaries units or shares of its Equity Interests with the proceeds
received from a substantially concurrent issue of new units or shares of its Equity Interests;
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(d) cashless exercises of options and warrants;
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(e) repurchases pursuant to the terms of employee stock purchase plans, employee restricted stock agreements, stockholder rights plans, director or consultant
stock option plans, or similar plans in an aggregate amount not to exceed $500,000 in any fiscal year;
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(f) the making of cash payments in lieu of the issuance of fractional shares upon the conversion of convertible securities (or in connection with the
exercise of warrants or similar securities) not to exceed $25,000 in any fiscal year;
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(g) the issuance of the Warrant Certificate;
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(h) cash payments made to redeem, purchase, repurchase or retire the Warrant Obligations in accordance with the
terms of the Warrant Certificate; and
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(i) the Convertible Notes Funding Actions.
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(a) transfers of cash in the Ordinary Course of Business for equivalent value;
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(b) sales or leases of inventory in the Ordinary Course of Business;
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(c) the forgiveness, release or compromise of any amount owed to any Obligor or any of its Subsidiaries in the Ordinary Course of Business;
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(d) entering into, or becoming bound, by a Permitted License to the extent not otherwise prohibited by this Agreement;
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(e) development and other collaborative arrangements where such arrangements provide for the license or disclosure of Patents, Trademarks, Copyrights or other
Intellectual Property rights of any Obligor or any of its Subsidiaries in the Ordinary Course of Business and consistent with general market practices; provided that (i) such licenses must be
true licenses that do not result in a legal transfer of title of the licensed Property or otherwise constitute sales transactions in substance and (ii) the aggregate amount of such periodic payments to the Obligors and its Subsidiaries in
any fiscal year shall not exceed $500,000;
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(f) a sale, lease, exclusive license, transfer or other disposition (including by way of abandonment, cancellation or trade-in) of any Property that is
obsolete, worn out, surplus or no longer used or useful in connection with the business of the Obligors and its Subsidiaries or with respect to which a newer and improved version is available;
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(g) dispositions resulting from Casualty Events;
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(h) any transaction permitted under Section 9.02, 9.03, 9.05. 9.10 and 9.20;
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(i) a sale, transfer or other disposition (including by way of abandonment, cancellation or trade-in) of any
Property of an Immaterial Foreign Subsidiary in connection with the liquidation, wind up or dissolution of such Immaterial Foreign Subsidiary;
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(j) so long as no Default or Event of Default shall have occurred and is continuing at the time of such Asset Sale, or after giving effect thereto, Asset
Sales of other property not to exceed $3,000,000 in the aggregate per fiscal year; and
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(k) the Convertible Notes Funding Actions.
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(a) transactions between or among the Obligors;
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(b) any transaction permitted under Section 9.01, 9.03, 9.05, 9.06 or 9.09;
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(c) customary compensation and indemnification of, and other employment arrangements with, directors, officers and employees of any Obligor in the Ordinary
Course of Business;
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(d) transactions upon fair and reasonable terms that are no less favorable to any Obligor than would be obtained in a comparable arm’s-length transaction with
a Person not an Affiliate;
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|
(e) the transactions set forth on Schedule 9.10; and
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(f) the Bray Leases.
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(a) Each Obligor will not enter into any amendment to or modification of any Organizational Document without the prior written consent of the Administrative
Agent.
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(b) Each Obligor will not (i) enter into any material waiver, amendment or modification of any Material Agreement
(including, but not limited to, any amendments to provisions relating to pricing and term) that would be reasonably expected to adversely affect the Lenders in any material respect or (ii) 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 that would be reasonably expected to have a Material Adverse Effect, without, in each case, the prior written consent
of the Administrative Agent, such consent not to be unreasonably withheld or delayed.
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(c) Each Obligor will not enter into any amendment to or modification of the Bray Leases, which is less favorable to the Obligors, without the prior written
consent of the Administrative Agent.
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(d) Other than to effectuate the transactions pursuant to Section 6.02(l), each AIB Credit Party will not enter into any amendment to or modification of the
AIB Facilities Letter or AIB Facility 3 without the prior written consent of the Administrative Agent.
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(e) Each Obligor will not enter into any amendment to or modification of the Investor Convertible Note that is in violation of the Investor Subordination
Agreement without the prior written consent of the Administrative Agent.
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(a) the Borrowers shall fail to pay any principal on the Term Loan when and as the same shall become due and payable, whether at the due date thereof or at a
date fixed for mandatory prepayment thereof or otherwise; or
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(b) any Obligor shall fail to pay any Obligation (other than an amount referred to in Section 10.01(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; or
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(c) any representation or warranty made by or on behalf of an Obligor or any of its Subsidiaries (as applicable) 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 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; or
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(d) any Obligor shall fail to observe or perform any covenant, condition or agreement contained in Sections
8.01(a)-(d), 8.02(a) and (b), 8.03(a) (with respect to such Obligor’s existence), 8.10, 8.11, 8.13, 8.15, 8.16, 8.17, 8.18, 8.19, or Article 9; or
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(e) any Obligor shall fail to observe or perform any covenant, condition or agreement contained in Section 8.01 (other than in clauses (a)-(d)) and 8.02
(other than in clauses (a) and (b)), and, in the case of any failure that is capable of cure, such failure shall continue unremedied for a period of ten (10) or more days; or
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(f) any Obligor shall fail to observe or perform any covenant, condition or agreement contained in this Agreement
(other than those specified in Section 10.01(a), (b), (d) or (e)) 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; or
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(g) any Obligor shall fail to make any payment (whether of principal or interest and regardless of amount) in respect of any Material Indebtedness (other than
with respect to Item 4 in Schedule 7.13A, so long as such non-payment is subject to a bona fide dispute contested in good faith by appropriate proceedings and for which such Obligor has set aside on its books adequate reserves with
respect thereto substantially in accordance with IFRS), 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
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(h) (i) any material breach of, or “event of default” or similar event under, the Contract governing any Material
Indebtedness shall occur and such breach or “event of default” or similar event shall continue unremedied, uncured or unwaived after a period of five (5) Business Days after the expiration of any cure period thereunder, or (ii) any event
or condition occurs (A) that results in any Material Indebtedness becoming due prior to its scheduled maturity or (B) 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 any trustee or agent on its or their behalf to cause such Material Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity; provided that this Section 10.01(h) shall not apply to secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the Property securing such Material Indebtedness; or
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(i) any Obligor:
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(i) 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; or
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(ii) shall (A) voluntarily commence any proceeding or file any petition seeking liquidation, reorganization or other relief under any United States federal,
state, provincial, territorial, Canadian federal, or other foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, (B) consent to the institution of, or fail to contest in a timely and appropriate manner,
any proceeding or petition described in Section 10.01(j), (C) apply for or consent to the appointment of a receiver, receiver and manager, interim receiver, manager, liquidator, trustee, custodian, sequestrator, conservator or similar
official for an Obligor or for a substantial part of its assets, (D) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (E) make a general assignment for the benefit of creditors or
(F) take any action for the purpose of effecting any of the foregoing; or
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(j) an involuntary proceeding shall be commenced or an involuntary petition shall be filed seeking (i)
liquidation, reorganization or other relief in respect of an Obligor or its debts, or of a substantial part of its assets, under any United States federal, state, provincial, territorial, Canadian federal, or other foreign bankruptcy,
insolvency, receivership or similar law now or hereafter in effect or (ii) the appointment of a receiver, receiver and manager, interim receiver, manager, liquidator, trustee, custodian, sequestrator, conservator or similar official for
an Obligor or for a substantial part of its assets, and, in any such case, such proceeding or petition shall continue undismissed for sixty (60) days or an order or decree approving or ordering any of the foregoing shall be entered; or
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(k) one or more judgments for the payment of money in an aggregate amount in excess of $1,000,000 (excluding any
amounts covered by insurance as to which the applicable carrier has accepted coverage) shall be rendered against any Obligor or any combination thereof and the same shall remain undischarged for a period of forty-five (45) consecutive
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; or
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(l) (i) an ERISA Event shall have occurred that, in the reasonable opinion of the Lenders, when taken together with all other ERISA Events that have
occurred, would reasonably be expected to have a Material Adverse Effect or (ii) the institution of any steps by any Obligor or any applicable regulatory authority to terminate a Canadian Pension Plan if such termination would reasonably
be expected to have a Material Adverse Effect; or
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(m) a Change of Control shall have occurred; or
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|
(n) a Key Person Event shall have occurred; or
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(o) a Material Adverse Change shall have occurred; or
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(p) (i) any Lien created by any of the Security Documents shall at any time not constitute a valid and perfected Lien in favor of the Administrative Agent on
Collateral with an aggregate value in excess of $1,000,000, free and clear of all other Liens (other than Permitted Liens) except due to the action or inaction of the Administrative Agent or any Lender(s), (ii) except for expiration in
accordance with its terms and except due to the action or inaction of the Administrative Agent or any Lender(s), the Security Documents or any Guarantee of any of the Obligations shall for whatever reason cease to be in full force and
effect, or (iii) any of the Security Documents or any Guarantee of any of the Obligations, or the enforceability thereof, shall be repudiated or contested by any Obligor; or
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(q) any injunction, whether temporary or permanent, shall be rendered against any Obligor that prevents the
Obligors from selling or manufacturing any Product that has a Material Adverse Effect; or
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(r) (i) the FDA or any other Governmental Authority (A) issues a letter or other communication asserting that any Product lacks a required Product
Authorization (other than the revocation of any emergency use authorization), including in respect of CE marks or 510(k)s or (B) initiates enforcement action against, or issues a warning letter with respect to, any Obligor, or any of
their Products or the manufacturing facilities therefor, that causes any Obligor thereof to discontinue marketing or withdraw any of its Products, or causes a delay in the manufacture of any of its Products, which discontinuance,
withdrawal or delay would reasonably be expected to last for more than ninety (90) days, (ii) any Permit relating to any Product (including all Product Authorizations), or any of the Obligors’ material rights or interests thereunder, is
terminated, adversely amended or otherwise determined to be ineffective in any manner materially adverse to any of the Obligors, in each case, for more than ninety (90) days, (iii) there is a recall of any Product in any territory in the
case of (i) or (ii) that would reasonably be expected to result in a loss of revenue equal to at least $3,000,000 over the twelve (12) month period following such event or (iv) any Obligor thereof enters into a settlement agreement with
the FDA or any other Governmental Authority that results in aggregate liability as to any single or related series of transactions, incidents or conditions, in excess of $3,000,000 and such settlement remains unpaid past the payment date
therefor.
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(a) Upon the occurrence of any Event of Default, then, and in every such event (other than an Event of Default described in Section 10.01(i) or (j)), and at
any time thereafter during the continuance of such event, the Majority Lenders may, by notice to the Administrative Borrower, take either or both of the following actions, at the same or different times: (i) terminate the Commitments, and
thereupon the Commitments shall terminate immediately, and (ii) declare the Term Loan 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 Term Loan so declared to be due and payable, together with accrued interest thereon and all fees and other Obligations, shall become due and payable immediately (in the
case of the Term Loan, at the Redemption Price therefor), without presentment, demand, protest or other notice of any kind, all of which are hereby waived by each Obligor.
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(b) Upon the occurrence of any Event of Default described in Section 10.01(i) or (j), the Commitments shall automatically terminate and the principal amount of
the Term Loan then outstanding, together with accrued interest thereon and all fees and other Obligations, shall automatically become due and payable immediately (in the case of the Term Loan, at the Redemption Price therefor), without
presentment, demand, protest or other notice of any kind, all of which are hereby waived by each Obligor.
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(c) If any Lender collects any money or property pursuant to this Article 10, they shall pay out the money or property in the order
set forth in Section 4.01(b).
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(a) at any time or from time to time, without notice to the 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;
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|
(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;
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(c) the maturity of any of the Guaranteed Obligations shall be accelerated, or any of the Guaranteed Obligations shall be modified, supplemented or amended in
any respect (including, without limitation, any modification, supplement, or amendment that results in any increase in the Guaranteed Obligations, any change in the interest or fees payable, any renewal, extension, amendment, rescission,
waiver, release, discharge, indulgence, compromise, arrangement, or any other variation in connection with the Guaranteed Obligations, any Loan Document, or any other agreement), 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;
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(d) any Lien or security interest granted to, or in favor of, any Lender as security for any of the Guaranteed
Obligations shall fail to be perfected or otherwise be taken, exchanged, substituted, varied, released, impaired, or subordinated;
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(e) any Guarantee of the Guaranteed Obligations shall be taken, released, impaired, amended, waived or otherwise modified;
|
|
(f) any of the Guaranteed Obligations, any Loan Document, or any related agreement, security, or instrument shall be illegal, invalid or unenforceable for
any reason whatsoever;
|
|
(g) any Collateral or other assets shall be sold or disposed, and/or the proceeds of such sale or disposition
applied, to satisfy all or part of the Guaranteed Obligations;
|
|
(h) any of the security or Collateral held for the Guaranteed Obligations shall lose or diminish in value, whether such loss or diminution arises from any act
or omission of the Administrative Agent or any Lender;
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|
(i) there shall be any Default, failure, or delay, willful or otherwise, in the payment and/or performance of the Guaranteed Obligations;
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(j) there shall be any change, restructuring or termination of the corporate structure, ownership or existence of
any Obligor or any of its Subsidiaries or any insolvency, bankruptcy, reorganization or other similar proceeding affecting any Obligor or its assets or any resulting restructuring, compromise, release or discharge of any Guaranteed
Obligations;
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(k) there shall be any failure of any of the Administrative Agent or any Lender to disclose to any Obligor any
information relating to the business, condition (financial or otherwise), operations, performance, properties or prospects of any other Obligor, or any other information now or hereafter known to the Administrative Agent or such Lender;
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(l) any person shall fail to execute or deliver this Agreement (including the Guarantee in this Article 11) or any other Guarantee or agreement or the release
or reduction of liability of any Obligor or surety with respect to the Guaranteed Obligations;
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|
(m) any of the Administrative Agent or any Lender shall fail to assert any claim or demand or to exercise or
enforce any right or remedy under the provisions of any Loan Document or otherwise;
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|
(n) any Obligor shall assert any defense, set-off or counterclaim (other than a defense of payment or performance) that may at any time be available to, or be
asserted by, such against any of the Administrative Agent or any Lender; or
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|
(o) any other circumstance (including, without limitation, any statute of limitations) or manner of administering the Guaranteed Obligations shall exist or
occur, or any of the Administrative Agent or any Lender shall rely on any representation, in each case, that might vary the risk of any Obligor or otherwise operate as a defense available to, or a legal or equitable discharge of, any
Obligor or surety.
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|
(a) constitute unlawful financial assistance prohibited by section 82 of the Companies Act 2014 of Ireland; or
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|
(b) constitute a breach of section 239 of the Companies Act 2014 of Ireland, provided that (in the case of both (a) and (b) above), for
the avoidance of doubt, to the extent that any such obligations under Section 11.01 have been validated by a summary approval procedure in accordance with the Companies Act 2014 of Ireland, they shall not constitute unlawful financial
assistance under the said section 82 or a breach of the said section 239 (as applicable).
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|
(a) The Administrative Agent will not have any duties or obligations except those expressly set forth herein and in the other Loan Documents, and its duties
hereunder are administrative in nature. Without limiting the generality of the foregoing, the Administrative Agent:
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|
(i) will not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing;
|
|
(ii) will not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated
hereby or by the other Loan Documents that the Administrative Agent is required to exercise as directed in writing by the Majority Lenders (or such other number or percentage of the Lenders as will be expressly provided for herein or in
the other Loan Documents); provided that the Administrative Agent will not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent
to liability or that is contrary to any Loan Document or applicable Law, including any action that may be in violation of the automatic stay under any Insolvency Proceeding; and
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|
(iii) will not, except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and will not be liable for the failure to
disclose, any information relating to the Obligors or any of its Subsidiaries or Affiliates, that is communicated to or obtained by the Person serving as the Administrative Agent or any of its Affiliates in any capacity.
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(b) The Administrative Agent will not be liable for any action taken or not taken by it (i) with the consent or at the request of the Majority Lenders (or such
other number or percentage of the Lenders as will be necessary, or as the Administrative Agent believes in good faith will be necessary, under the circumstances), or (ii) in the absence of its own gross negligence or willful misconduct as
determined by a court of competent jurisdiction by final and non-appealable judgment. The Administrative Agent will be deemed not to have knowledge of any Default unless and until notice describing such Default is given to the
Administrative Agent in writing by the Borrowers or a Lender.
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|
(c) The Administrative Agent will not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in
or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance
of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or
any other agreement, instrument or document or (v) the satisfaction of any condition set forth in Article 6 or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent.
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(a) The Administrative Agent may at any time give notice of its resignation to the Lenders and the Administrative Borrower, which notice shall set forth the
effective date of such resignation (the “Resignation Effective Date”), such date not to be earlier than the thirtieth (30th) day following the date of such notice. The Majority Lenders and the
Administrative Borrower shall mutually agree upon a successor to the Administrative Agent. If the Majority Lenders and the Administrative Borrower are unable to so mutually agree and no successor shall have been appointed within
twenty-five (25) days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may (but will not be obligated to), on behalf of the Lenders, appoint a successor Administrative Agent
it shall designate (in its reasonable discretion after consultation with the Borrowers and the Majority Lenders). Whether or not a successor has been appointed, such resignation will become effective in accordance with such notice on the
Resignation Effective Date.
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(b) With effect from the Resignation Effective Date (i) the retiring Administrative Agent will be discharged from its duties and obligations hereunder and
under the other Loan Documents (except that in the case of any Collateral held by the Administrative Agent on behalf of the Lenders under any of the Loan Documents, the retiring Administrative Agent will continue to hold such Collateral
until such time as a successor Administrative Agent is appointed) and (ii) except for any indemnity payments owed to the retiring Administrative Agent, all payments, communications and determinations provided to be made by, to or through
the Administrative Agent will instead be made by or to each Lender directly, until such time, if any, as the Majority Lenders appoint a successor Administrative Agent as provided for above. Upon the acceptance of a successor’s appointment
as Administrative Agent hereunder, such successor will succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Administrative Agent (other than any rights to indemnity payments owed to the
retiring Administrative Agent), and the retiring Administrative Agent will be discharged from all of its duties and obligations hereunder or under the other Loan Documents. The fees payable by the Borrowers to a successor Administrative
Agent will be the same as those payable to its predecessor unless otherwise agreed between the Administrative Borrower and such successor. After the retiring Administrative Agent’s resignation hereunder and under the other Loan Documents,
the provisions of this Article 12 and Sections 13.03 and 13.06 will continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Affiliates in respect of any actions taken or omitted to be
taken by any of them while the retiring Administrative Agent was acting as Administrative Agent.
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(a) to file and prove a Claim for the whole amount of the principal and interest owing and unpaid in respect of the Term Loan and all other Obligations that
are owing and unpaid hereunder or under any other Loan Document 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 this Agreement or
any other Loan Document) allowed in such judicial proceeding; and
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(b) to collect and receive any monies or other property payable or deliverable on any such Claims and to
distribute the same.
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(a) Without limiting the provisions of Section 12.08, the Lenders irrevocably agree as follows:
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(i) the Administrative Agent is authorized, at its option and in its discretion, to release any Lien on any property granted to or held by the Administrative
Agent under any Loan Document (A) on the date when all Obligations have been satisfied in full in cash (other than Warrant Obligations and contingent obligations as to which no Claims have been asserted), (B) that is sold or otherwise
disposed of or to be sold or otherwise disposed of as part of or in connection with any sale or other disposition permitted under the Loan Documents, or (C) subject to Sections 13.01 and 13.04, if approved, authorized or ratified in
writing by the Majority Lenders; and
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(ii) the Administrative Agent is authorized, at its option and discretion, to release any Guarantor, from its obligations hereunder if such Person ceases to be a
Subsidiary as a result of a transaction permitted under the Loan Documents.
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(b) The Administrative Agent will not be responsible for or have a duty to ascertain or inquire into any representation or warranty regarding the existence,
value or collectability of the Collateral, the existence, priority or perfection of the Administrative Agent’s Lien thereon, or any certificate prepared by any Obligor in connection therewith, nor will the Administrative Agent be
responsible or liable to the Lenders for any failure to monitor or maintain any portion of the Collateral.
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(c) Each Lender hereby appoints the Administrative Agent as its collateral agent under each of the Security Documents and agrees that, in so acting, the
Administrative Agent will have all of the rights, protections, exculpations, indemnities and other benefits provided to the Administrative Agent under this Agreement, and hereby authorizes and directs the Administrative Agent, on behalf
of such Lender and all Lenders, without the necessity of any notice to or further consent from any of the Lenders, from time to time to (i) take any action with respect to any Collateral or any Security Document which may be necessary to
perfect and maintain perfected the Liens on the Collateral granted pursuant to any such Security Document or protect and preserve the Administrative Agent’s ability to enforce the Liens or realize upon the Collateral, (ii) act as
collateral agent for each Lender for purposes of acquiring, holding, enforcing and perfecting all Liens created by the Loan Documents and all other purposes stated therein, (iii) enter into intercreditor or subordination agreements, as
the case may be, in connection with Indebtedness permitted pursuant to Sections 9.01(e), (iv) enter into non-disturbance or similar agreements in connection with licensing agreements and arrangements permitted by this Agreement and the
other Loan Documents and (v) otherwise to take or refrain from taking any and all action that the Administrative Agent shall deem necessary or advisable in fulfilling its role as collateral agent under any of the Security Documents.
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(a)
Expenses. Each Obligor agrees to pay or reimburse (i) the Administrative Agent and the Lenders for all of their reasonable and documented out of pocket
costs and expenses (including the reasonable and documented fees and expenses of Chapman and Cutler LLP, counsel to the Administrative Agent) in connection with (A) the negotiation, preparation, execution and delivery of this Agreement
and the other Loan Documents on the Closing Date; provided that, such fees shall be credited against the Expense Deposit paid by Parent, (B) the negotiation, preparation, execution and delivery
of the other Loan Documents on the Funding Date and the making of the Term Loan (inclusive of post-closing costs but exclusive of post-funding costs), (C) post-funding costs and (D) the discussions regarding, and the negotiation or
preparation of, any amendment, modification, supplement or waiver of any of the terms of this Agreement or any of the other Loan Documents (whether or not documented or consummated, including the reasonable fees and expenses of legal
counsel) and (ii) the Administrative Agent and the Lenders for all of their reasonable and documented out of pocket costs and expenses (including the reasonable fees and expenses of legal counsel) in connection with any enforcement or
collection proceedings resulting from the occurrence of an Event of Default.
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(b)
Indemnification. Each Obligor hereby indemnifies the Administrative Agent, the Lenders, their respective Affiliates, and their respective directors,
officers, employees, attorneys, agents and advisors (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 fees and disbursements of counsel), joint or several, that is incurred by or asserted or awarded against any Indemnified Party, in each case arising out of or in connection with or relating to any investigation,
litigation or proceeding or the preparation of any defense with respect thereto arising out of or in connection with or relating to this Agreement or any of the other Loan Documents or the Transactions or any use made or proposed to be
made with the proceeds of the Term Loan, whether or not such investigation, litigation or proceeding is brought by an Obligor, any of its 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 Article 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 any 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 Term Loan. This Section shall not apply to Taxes other than Taxes relating to a non-Tax Claim or Loss governed by this Section 13.03(b).
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(a) no amendment, waiver or consent shall, unless in writing and signed by all of the Lenders, do any of the following at any time:
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(i) change the number of Lenders or the percentage of (A) the Commitments or (B) the aggregate unpaid principal
amount of the Term Loan that, in each case, shall be required for the Lenders or any of them to take any action hereunder (including pursuant to any change to the definition of “Majority Lenders”);
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(ii) release one or more Guarantors (or otherwise limit such Guarantors’ liability with respect to the Obligations owing to the Lenders under the Guarantees) if
such release or limitation is in respect of all or substantially all of the value represented by the Guarantees to the Lenders;
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(iii) release, or subordinate the Lenders’ Liens in, all or substantially all of the Collateral in any transaction or series of related transactions (other than
in connection with any sale of Collateral permitted herein); or
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(iv) amend any provision of this Section 13.04;
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(b) no amendment, waiver or consent shall, unless in writing and signed by each Lender specified below for such amendment, waiver or
consent:
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(i) increase the Commitments of a Lender without the consent of such Lender;
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(ii) reduce the principal of, or stated rate of interest on, or any Prepayment Premium payable on, the Term Loan owed
to a Lender or any fees or other amounts stated to be payable hereunder or under the other Loan Documents to such Lender without the consent of such Lender;
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(iii) postpone any date scheduled for any payment of principal of, or interest on, the Term Loan, any date scheduled for payment or for any date fixed for any
payment of fees hereunder (excluding the due date of any mandatory prepayment of the Term Loan), in each case payable to a Lender without the consent of such Lender;
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(iv) change the order of application of prepayment of the Term Loan from the application thereof set forth in the
applicable provisions of Section 4.01(b) in any manner that adversely affects the Lenders without the consent of holders of a majority of the Commitments or Term Loan outstanding or otherwise change any provision requiring the pro rata
distributions hereunder among the Lenders without all Lenders’ consent; or
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(v) modify Section 2.02 without the consent of each Lender directly and adversely affected thereby.
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(a) General. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns permitted hereby, except that (i) no Obligor may assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of the Administrative Agent
and each Lender (and any attempted assignment or transfer by such Obligor without such consent shall be null and void) and (ii) no Lender may assign or otherwise transfer its rights or obligations hereunder except in accordance with
this Section. 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 paragraph (e) of this Section) and, to the extent expressly contemplated hereby, the Indemnified Parties of the Lenders) any legal or equitable right, remedy or Claim under or by reason of this Agreement.
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(b) Amendments to Loan Documents; Majority Lender Vote. Each of 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 Lenders and the Obligors, as shall reasonably
be necessary to implement and give effect to any assignment made by any Lender (or any direct or indirect assignee thereof) from time to time under this Section 13.05.
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(c)
Assignments by Lenders.
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(i) Subject to the conditions set forth in paragraph (c)(ii) below, any Lender may assign to one or more Persons
(other than an Ineligible Assignee) all or a portion of its rights and obligations under the Loan Documents (including all or a portion of its Commitment and the Term Loan at the time owing to it) (A) with the prior written consent (such
consent not to be unreasonably withheld) of the Administrative Agent and (B) so long as no Default shall have occurred and is continuing, upon notice to the Administrative Borrower; provided that
no consent of the Administrative Agent nor notice to the Administrative Borrower shall be required for an assignment of any Commitment or of all or any portion of the Term Loan to a Lender, an Affiliate of a Lender or an Approved Fund.
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(ii) Assignments shall be subject to the following additional conditions:
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(A) except in the case of an assignment to a Lender or an Affiliate of a Lender or an assignment of the entire remaining amount of the assigning
Lender’s Commitment or Term Loan, the amount of the Commitment or Term Loan of the assigning Lender subject to each such assignment (determined as of the date the Assignment Agreement with respect to such assignment is delivered to the
Administrative Agent) shall not be less than $500,000, unless the Administrative Agent otherwise consents;
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(B) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this
Agreement and the other Loan Documents; and
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(C) the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment Agreement in form and substance reasonably
satisfactory to Administrative Agent.
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(iii) Subject to acceptance and recording thereof pursuant to paragraph (d) of this Section, from and after the effective date specified in each
Assignment Agreement, the assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such Assignment Agreement, have the rights and obligations of a Lender under the Loan Documents, and the assigning Lender
thereunder shall, to the extent of the interest assigned by such Assignment Agreement, be released from its obligations under the Loan Documents (and, in the case of an Assignment Agreement covering all of the assigning Lender’s rights
and obligations under the Loan Documents, such Lender shall cease to be a party hereto). Any assignment or transfer by a Lender of rights or obligations under the Loan Documents that does not comply with this Section 13.05 shall be
treated for purposes of the Loan Documents as a sale by such Lender of a participation in such rights and obligations in accordance with paragraph (e) of this Section.
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(d) Register. The Administrative Agent, acting for this purpose as a non-fiduciary agent of the Borrowers,
shall maintain at one of its offices a copy of each Assignment Agreement delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitment of, and principal amount (and stated interest) of
the Term Loan 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 Borrowers, 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, notwithstanding notice to the contrary. The
Register shall be available for inspection by the Borrowers and any Lender, at any reasonable time and from time to time upon reasonable prior notice. No assignment shall be effective for purposes of this Agreement unless (i) it has
been recorded in the Register as provided in this paragraph and (ii) any written consent to such assignment required by paragraph (b) of this Section has been obtained.
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(e) Participations. Any Lender may at any time, without the consent of, or notice to, the Borrowers, sell
participations to any Person (a “Participant”), other than a natural person, in all or a portion of such Lender’s rights and obligations under the Loan
Documents (including all or a portion of its Commitment and the Term Loan owing to it); provided that (i) such Lender’s obligations under the Loan Documents shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrowers shall continue to deal solely and directly with such Lender in connection therewith.
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(f) Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce
this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; 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 Term Loan
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. The Borrowers agree that each Participant shall be entitled to the benefits of Section 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 Borrowers and the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to
Section 13.05(a), provided that such Participant (A) agrees to be subject to the provisions of Section 5.03(h) as if it were an assignee under Section 13.05(a); and (B) shall not be entitled to
receive any greater payment under Section 5.03, with respect to any participation, than its participating Lender would have been entitled to receive, unless the sale of the participation to such Participant is made with the Administrative
Borrower’s prior written consent. To the extent permitted by Law, each Participant also shall be entitled to the benefits of Section 4.04(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 Borrowers, 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 Term Loan 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, letters of credit 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, letter of credit 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.
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(g) Certain Pledges. Subject to Section 13.05(c), the Lenders may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement and any other Loan Document to secure obligations of the Lenders, including any pledge or assignment to secure obligations to a Federal Reserve Bank or another central
bank; provided that no such pledge or assignment shall release the Lenders from any of their obligations hereunder or substitute any such pledgee or assignee for the Lenders as a party hereto.
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(a) SUBMISSION TO JURISDICTION. EACH OBLIGOR AGREES THAT ANY SUIT, ACTION OR PROCEEDING WITH RESPECT TO
THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT TO WHICH IT IS A PARTY OR ANY JUDGMENT ENTERED BY ANY COURT IN RESPECT THEREOF SHALL BE BROUGHT IN THE SUPREME COURT OF THE STATE OF NEW YORK OR IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK, IN EITHER CASE, SITTING IN NEW YORK COUNTY (EXCEPT, WITH RESPECT TO THE CANADIAN SECURITY AGREEMENT, IRISH DEBENTURE AND ANY OTHER LOAN DOCUMENT, AS OTHERWISE EXPRESSLY PROVIDED THEREIN) AND IRREVOCABLY
SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF EACH SUCH COURT FOR THE PURPOSE OF ANY SUCH SUIT, ACTION, PROCEEDING OR JUDGMENT
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(b) Alternative Process. Each party to this Agreement irrevocably consents to service of process in the
manner provided for notices in Section 13.02. Nothing herein shall in any way be deemed to limit the ability of any party to this Agreement to serve any process in any other manner permitted by applicable Law.
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(c) WAIVER OF VENUE, ETC. EACH OBLIGOR 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 IN ANY COURT PERMITTED BY SECTION 13.10(A) 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 OBLIGOR IS OR MAY BE SUBJECT, BY SUIT UPON JUDGMENT.
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(a) Notwithstanding anything to the contrary contained herein or in any other Loan Document, each Lender agrees, and the Administrative Agent is hereby
irrevocably authorized by each Lender and given a limited power of attorney by each Lender to perform the actions described hereafter in this Section 13.18 (without requirement of notice to or consent of any Lender except as expressly
required by Section 13.04) to take any action reasonably requested by the Borrowers having the effect of releasing any Collateral or Obligations (i) to the extent necessary to permit consummation of any transaction not prohibited by any
Loan Document or that has been consented to by the Lenders or (ii) under the circumstances described in paragraph (b) below.
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(b) At such time as the Term Loan and the other Obligations (other than the inchoate indemnity obligations and Warrant Obligations) under the Loan Documents
shall have been paid in full in cash and the Commitments have been terminated, the Collateral shall be released from the Liens created by the Security Documents, and the Security Documents and all obligations (other than those expressly
stated to survive such termination) of the Administrative Agent and each Obligor under the Security Documents shall terminate, all without delivery of any instrument or performance of any act by any Person.
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(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
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(b) the effects of any Bail-In Action on any such liability, including, if applicable:
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(i) a reduction in full or in part or cancellation of any such liability;
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(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
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(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.
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(a) The obligations of any Obligor under this Agreement and the other Loan Documents to make payments in Dollars shall not be discharged or satisfied by any
tender or recovery pursuant to any judgment expressed in or converted into any currency other than Dollars, except to the extent that such tender or recovery results in the effective receipt by the Administrative Agent or Lender of the
full amount of Dollars expressed to be payable to the Administrative Agent or such Lender under this Agreement or the other Loan Documents. If, for the purpose of obtaining or enforcing a judgment against any Obligor in any court or in
any jurisdiction, it becomes necessary to convert into or from any currency other than Dollars (such other currency, the “Judgment Currency”) an amount due in Dollars, the conversion shall be made
at the rate of exchange quoted by the Administrative Agent, determined, in each case, as of the Business Day immediately preceding the day on which the judgment is given (such Business Day, the “Judgment
Currency Conversion Date”).
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(b) If there is a change in the rate of exchange prevailing between the Judgment Currency Conversion Date and the date of actual payment of the amount due,
each Obligor covenants and agrees to pay, or cause to be paid, such additional amounts, if any (but in any event not a lesser amount), as may be necessary to ensure that the amount paid in the Judgment Currency, when converted at the rate
of exchange prevailing on the actual date of payment, will produce the amount of Dollars that could have been purchased with the amount of the Judgment Currency stipulated in the judgment or judicial award at the rate of exchange
prevailing on the Judgment Currency Conversion Date.
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(c) For purposes of determining any rate of exchange for this Section 13.20, such amounts shall include any
premium and costs payable in connection with the purchase of Dollars.
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(a) Each Borrower is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodations to be
provided by the Administrative Agent and the Lenders under the Loan Documents, for the mutual benefit, directly and indirectly, of each Borrower and in consideration of the undertakings of the Borrowers to accept joint and several
liability for the Obligations.
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(b) Each Borrower, jointly and severally, hereby irrevocably and conditionally accepts, not merely as a surety but also as a co-debtor, joint and several
liability with the other Borrower, with respect to the payment and performance of all of the Obligations (including any Obligations arising under this Section 13.22), it being the intention of the parties hereto that all the Obligations
shall be the joint and several obligations of each Borrower without preferences or distinction among them.
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(c) If and to the extent that any Borrower shall fail to make any payment with respect to any of the Obligations as and when due or to perform any of the Obligations in accordance
with the terms thereof, then in each such event the other Borrower will make such payment with respect to, or perform, such Obligation until such time as all of the Obligations are paid in full.
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(d) The Obligations of each Borrower under the provisions of this Section 13.22 constitute the absolute and unconditional, full recourse Obligations of each
Borrower enforceable against each Borrower to the full extent of its properties and assets, irrespective of the validity, regularity or enforceability of the provisions of this Agreement (other than this Section 13.22(d)) or any other
circumstances whatsoever.
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(e) Except as otherwise expressly provided in this Agreement, each Borrower hereby waives notice of acceptance of its joint and several liability, notice of
any Loans, notice of the occurrence of any Default, Event of Default, or of any demand for any payment under this Agreement, notice of any action at any time taken or omitted by the Administrative Agent or the Lenders under or in respect
of any of the Obligations, any requirement of diligence or to mitigate damages and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Agreement (except
as otherwise provided in this Agreement). Each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any payment of any of the Obligations,
the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by the Administrative Agent or the Lenders at any time or times in respect of any default by any Borrower in the performance or
satisfaction of any term, covenant, condition or provision of this Agreement, any and all other indulgences whatsoever by the Administrative Agent or the Lenders in respect of any of the Obligations, and the taking, addition, substitution
or release, in whole or in part, at any time or times, of any security for any of the Obligations or the addition, substitution or release, in whole or in part, of any Borrower. Without limiting the generality of the foregoing, each
Borrower assents to any other action or delay in acting or failure to act on the part of the Administrative Agent or a Lender with respect to the failure by any Borrower to comply with any of its respective Obligations, including, without
limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder, which would, but for the provisions of this Section 13.22 afford grounds for
terminating, discharging or relieving any Borrower, in whole or in part, from any of its Obligations under this Section 13.22, it being the intention of each Borrower that, so long as any of the Obligations hereunder remain unsatisfied,
the Obligations of each Borrower under this Section 13.22 shall not be discharged except by performance and then only to the extent of such performance. The Obligations of each Borrower under this Section 13.22 shall not be diminished or
rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to any other Borrower or the Administrative Agent or a Lender.
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(f) Each Borrower represents and warrants to the Administrative Agent and the Lenders that such Borrower is
currently informed of the financial condition of the Borrowers and of all other circumstances which a diligent inquiry would reveal and which bear upon the risk of nonpayment of the Obligations. Each Borrower further represents and
warrants to the Administrative Agent and the Lenders that such Borrower has read and understands the terms and conditions of the Loan Documents. Each Borrower hereby covenants that such Borrower will continue to keep informed of the other
Borrower’s financial condition and of all other circumstances which bear upon the risk of nonpayment or nonperformance of the Obligations.
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(g) The provisions of this Section 13.22 are made for the benefit of the Administrative Agent and each Lender, and their successors and assigns, and may be
enforced by it or them from time to time against any or all of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Administrative Agent or each Lender, or any of their successors or assigns
first to marshal any of its or their claims or to exercise any of its or their rights against any Borrower or to exhaust any remedies available to it or them against any Borrower or to resort to any other source or means of obtaining
payment of any of the Obligations hereunder or to elect any other remedy. The provisions of this Section 13.22 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfied. If at any time,
any payment, or any part thereof, made in respect of any of the Obligations, is rescinded or must otherwise be restored or returned by the Administrative Agent or any Lender upon the insolvency, bankruptcy or reorganization of any
Borrower, or otherwise, the provisions of this Section 13.22 will forthwith be reinstated in effect, as though such payment had not been made.
|
|
(h) Each Borrower hereby agrees that it will not enforce any of its rights of contribution or subrogation against the other Borrower with respect to any
liability incurred by it hereunder or under any of the other Loan Documents, any payments made by it to the Administrative Agent or the Lenders with respect to any of the Obligations or any collateral security therefor until such time as
all of the Obligations have been paid in full in cash. Any claim which the Administrative Agent or a Lender may have against any Borrower with respect to any payments to the Administrative Agent or any Lender hereunder are hereby
expressly made subordinate and junior in right of payment, without limitation as to any increases in the Obligations arising hereunder or thereunder, to the prior payment in full in cash of the Obligations and, in the event of any
insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating to any Borrower, its debts or its assets, whether voluntary or involuntary, all such Obligations
shall be paid in full in cash before any payment or distribution of any character, whether in cash, securities or other property, shall be made to any Borrower therefor.
|
|
(i) Each Borrower hereby agrees that after the occurrence and during the continuance of any Default or Event of Default, such Borrower will not demand, sue for
or otherwise attempt to collect any Indebtedness of any other Borrower owing to such Borrower until the Obligations shall have been paid in full in cash. If, notwithstanding the foregoing sentence, such Borrower shall collect, enforce or
receive any amounts in respect of such Indebtedness, such amounts shall be collected, enforced and received by such Borrower as trustee for the Administrative Agent, and such Borrower shall deliver any such amounts to the Administrative
Agent for application to the Obligations in accordance with this Agreement.
|
|
BORROWERS:
TRINITY BIOTECH, INC.
By:_____________________________
Name:
Title:
FITZGERALD INDUSTRIES INTERNATIONAL, INC.
By:_____________________________
Name:
Title:
CLARK LABORATORIES, INC. (D/B/A TRINITY BIOTECH (USA))
By:_____________________________
Name:
Title:
BIOPOOL U.S., INC. (D/B/A TRINITY BIOTECH DISTRIBUTION)
By:_____________________________
Name:
Title:
|
|
PRIMUS CORPORATION
By:_____________________________
Name:
Title:
MARDX DIAGNOSTICS, INC.
By:_____________________________
Name:
Title:
IMMCO DIAGNOSTICS, INC.
By:_____________________________
Name:
Title:
|
|
TRINITY BIOTECH PLC
By:_____________________________
Name:
Title:
TRINITY RESEARCH LIMITED
By:_____________________________
Name:
Title:
TRINITY BIOTECH FINANCIAL SERVICES LIMITED
By:_____________________________
Name:
Title:
BENEN TRADING LIMITED
By:_____________________________
Name:
Title:
TRINITY BIOTECH MANUFACTURING LIMITED
By:_____________________________
Name:
Title:
TRINITY BIOTECH MANUFACTURING SERVICES LIMITED
By:_____________________________
Name:
Title:
|
|
TRINITY BIOTECH (JOINT VENTURE) LIMITED
By:_____________________________
Name:
Title:
PHOENIX BIO-TECH CORP.
By:_____________________________
Name:
Title:
IMMCO DIAGNOSTICS (CANADA) INC.
By:_____________________________
Name:
Title:
NOVA CENTURY SCIENTIFIC INC.
By:_____________________________
Name:
Title:
|
PERCEPTIVE CREDIT HOLDINGS III, LP
as Administrative Agent and Lender
By: Perceptive Credit Opportunities GP, LLC, its general partner
By:_____________________________
Name:
Title:
By:_____________________________
Name:
Title:
|
LENDER | COMMITMENT |
NUMBER OF WARRANT
AMERICAN DEPOSITARY
SHARES (REPRESENTED
BY AMERICAN
DEPOSITARY RECEIPTS)
|
PERCEPTIVE CREDIT
HOLDINGS III, LP
|
$81,250,000 |
2,500,000
|
SECTION
|
HEADING
|
PAGE
|
1 |
||
Section 1.01.
|
Certain Defined Terms
|
1
|
Section 1.02.
|
Accounting Terms and Principles
|
42
|
Section 1.03.
|
Interpretation
|
43
|
Section 1.04.
|
Divisions
|
43
|
Section 1.05.
|
Interest Rates
|
44
|
44
|
||
Section 2.01.
|
Term Loan
|
44
|
Section 2.02.
|
Proportionate Shares
|
45
|
Section 2.03.
|
Fees
|
45
|
Section 2.04.
|
Notes
|
45
|
Section 2.05.
|
Use of Proceeds
|
45
|
46
|
||
Section 3.01.
|
Repayment
|
46
|
Section 3.02.
|
Interest
|
46
|
Section 3.03.
|
Prepayments
|
49
|
51
|
||
Section 4.01.
|
Payments
|
51
|
Section 4.02.
|
Computations
|
52
|
Section 4.03.
|
Notices
|
53
|
Section 4.04.
|
Set-Off
|
53
|
53
|
||
Section 5.01.
|
Additional Costs
|
53
|
Section 5.02.
|
Illegality
|
54
|
Section 5.03.
|
Taxes
|
55
|
Section 5.04.
|
Delay in Requests
|
60
|
61
|
||
Section 6.01.
|
Conditions to Closing Date
|
61
|
Section 6.02.
|
Conditions to Funding Date
|
64
|
68
|
Section 7.01.
|
Power and Authority
|
68
|
Section 7.02.
|
Authorization; Enforceability
|
68
|
Section 7.03.
|
Governmental and Other Approvals; No Conflicts
|
69
|
Section 7.04.
|
Financial Statements; Projections; Material Adverse Change
|
69
|
Section 7.05.
|
Properties
|
70 |
Section 7.06.
|
No Actions or Proceedings
|
72
|
Section 7.07.
|
Compliance with Laws and Agreements
|
72
|
Section 7.08.
|
Taxes
|
74
|
Section 7.09.
|
Full Disclosure
|
74
|
Section 7.10.
|
Regulation
|
74
|
Section 7.11.
|
Solvency
|
74
|
Section 7.12.
|
Reserved
|
74
|
Section 7.13.
|
Indebtedness and Liens
|
74
|
Section 7.14.
|
Material Agreements
|
75
|
Section 7.15.
|
Restrictive Agreements
|
75
|
Section 7.16.
|
Real Property
|
75
|
Section 7.17.
|
Pension and Other Plans
|
75
|
Section 7.18.
|
Collateral; Security Interest
|
75
|
Section 7.19.
|
Regulatory Approvals
|
76
|
Section 7.20.
|
Capitalization
|
78
|
Section 7.21.
|
Insurance
|
79
|
Section 7.22.
|
Certain Fees
|
79
|
Section 7.23.
|
Sanctions Laws
|
79
|
Section 7.24.
|
Anti-Corruption Laws
|
79
|
Section 7.25.
|
Anti-Terrorism Laws
|
79
|
Section 7.26.
|
Royalty and Other Payments
|
79
|
79 | ||
Section 8.01.
|
Financial Statements and Other Information
|
79 |
Section 8.02.
|
Notices of Material Events
|
82
|
Section 8.03.
|
Existence; Maintenance of Properties, Etc
|
85
|
Section 8.04.
|
Payment of Obligations
|
86
|
Section 8.05.
|
Insurance
|
86
|
Section 8.06.
|
Books and Records; Inspection Rights
|
87
|
Section 8.07.
|
Compliance with Laws
|
87
|
Section 8.08.
|
Licenses
|
87
|
Section 8.09.
|
Action under Environmental Laws
|
88
|
Section 8.10.
|
Use of Proceeds
|
88
|
Section 8.11.
|
Certain Obligations Respecting Subsidiaries; Further Assurances
|
88
|
Section 8.12.
|
Termination of Non-Permitted Liens
|
90
|
Section 8.13.
|
Non-Commingling
|
90
|
Section 8.14.
|
Anti-Terrorism and Anti-Corruption Laws
|
90
|
Section 8.15.
|
Minimum Liquidity
|
90
|
Section 8.16.
|
Minimum Total Revenue
|
91
|
Section 8.17.
|
Maintenance of Regulatory Approvals, Contracts, Intellectual Property, Etc.
|
92
|
Section 8.18.
|
Cash Management
|
92
|
Section 8.19.
|
Certain Post-Funding Obligations
|
93
|
Section 8.20.
|
COMI
|
93
|
Section 8.21.
|
Cashless Exercise of Warrant Certificate and Par Value
|
93
|
Section 8.22.
|
Canadian Pension Plans
|
93
|
Section 8.23.
|
Payment of Warrant Stamp Amount
|
93
|
94
|
||
Section 9.01.
|
Indebtedness
|
94
|
Section 9.02.
|
Liens
|
96
|
Section 9.03.
|
Fundamental Changes and Acquisitions
|
98
|
Section 9.04.
|
Lines of Business
|
99
|
Section 9.05.
|
Investments
|
99
|
Section 9.06.
|
Restricted Payments
|
101
|
Section 9.07.
|
Payments of Indebtedness
|
101
|
Section 9.08.
|
Change in Fiscal Year
|
102
|
Section 9.09.
|
Sales of Assets, Etc
|
102
|
Section 9.10.
|
Transactions with Affiliates
|
103
|
Section 9.11.
|
Restrictive Agreements
|
103
|
Section 9.12.
|
Organizational Documents, Material Agreements
|
103
|
Section 9.13.
|
Reserved
|
104
|
Section 9.14.
|
Sales and Leasebacks
|
104
|
Section 9.15.
|
Hazardous Material
|
104
|
Section 9.16.
|
Accounting Changes
|
104
|
Section 9.17.
|
Compliance with ERISA.
|
104
|
Section 9.18.
|
Deposit Accounts
|
105
|
Section 9.19.
|
Outbound Licenses
|
105
|
Section 9.20.
|
Inbound Licenses
|
105
|
Section 9.21.
|
Non-Commingling
|
105
|
Section 9.22.
|
Canadian Defined Benefit Pension Plans
|
105
|
105
|
||
Section 10.01.
|
Events of Default
|
105
|
Section 10.02.
|
Remedies
|
109
|
Section 10.03.
|
Prepayment Premium and Redemption Price
|
109
|
110
|
Section 11.01.
|
The Guarantee
|
110
|
Section 11.02.
|
Obligations Unconditional
|
110
|
Section 11.03.
|
Reinstatement
|
112
|
Section 11.04.
|
Subrogation
|
113
|
Section 11.05.
|
Remedies
|
113
|
Section 11.06.
|
Instrument for the Payment of Money
|
113
|
Section 11.07.
|
Continuing Guarantee
|
113
|
Section 11.08.
|
Rights of Contribution
|
114
|
Section 11.09.
|
General Limitation on Guarantee Obligations
|
114
|
Section 11.10.
|
Irish Limitation on Guarantee Obligations
|
115
|
115
|
||
Section 12.01.
|
Appointment
|
115
|
Section 12.02.
|
Rights as a Lender
|
115
|
Section 12.03.
|
Exculpatory Provisions
|
116
|
Section 12.04.
|
Reliance by Administrative Agent
|
117
|
Section 12.05.
|
Delegation of Duties
|
117
|
Section 12.06.
|
Resignation of Agent
|
117
|
Section 12.07.
|
Non-Reliance on Administrative Agent and Other Lenders
|
118
|
Section 12.08.
|
Administrative Agent May File Proofs of Claim
|
118
|
Section 12.09.
|
Collateral and Guaranty Matters; Appointment of Collateral Agent
|
119
|
120
|
||
Section 13.01.
|
No Waiver
|
120
|
Section 13.02.
|
Notices
|
121
|
Section 13.03.
|
Expenses, Indemnification, Etc
|
121
|
Section 13.04.
|
Amendments, Etc
|
122
|
Section 13.05.
|
Successors and Assigns
|
123
|
Section 13.06.
|
Survival
|
126
|
Section 13.07.
|
Captions
|
127
|
Section 13.08.
|
Counterparts
|
127
|
Section 13.09.
|
Governing Law
|
127
|
Section 13.10.
|
Jurisdiction, Service of Process and Venue
|
127
|
Section 13.11.
|
Waiver of Jury Trial
|
128
|
Section 13.12.
|
Waiver of Immunity
|
128
|
Section 13.13.
|
Entire Agreement
|
128
|
Section 13.14.
|
Severability
|
129
|
Section 13.15.
|
No Fiduciary Relationship
|
129
|
Section 13.16.
|
USA Patriot Act
|
129
|
Section 13.17.
|
Treatment of Certain Information; Confidentiality
|
129
|
Section 13.18.
|
Releases of Guarantees and Liens
|
130
|
Section 13.19.
|
Acknowledgement and Consent to Bail-In of EEA Financial Institutions
|
131
|
Section 13.20.
|
Judgment Currency
|
131
|
Section 13.21.
|
Administrative Borrower
|
132
|
Section 13.22.
|
Joint and Several Liability of Borrowers
|
133
|
SCHEDULES:
|
|
|
|
|
|
SCHEDULE 1
|
—
|
Commitments and Warrant Shares
|
SCHEDULE 2
|
—
|
Notice Addresses
|
SCHEDULE 3
|
—
|
Products
|
SCHEDULE 7.05(a)
|
—
|
Obligor Owned Real Property
|
SCHEDULE 7.05(b)
|
—
|
Obligor Material Intellectual Property
|
SCHEDULE 7.13A
|
—
|
Existing Indebtedness
|
SCHEDULE 7.13B
|
—
|
Existing Liens
|
SCHEDULE 7.14
|
—
|
Material Agreements
|
SCHEDULE 7.15
|
—
|
Restrictive Agreements
|
SCHEDULE 7.16
|
—
|
Real Property
|
SCHEDULE 7.17
|
—
|
Pension Matters
|
SCHEDULE 7.19(b)
|
—
|
Regulatory Approvals
|
SCHEDULE 7.19(e)
|
—
|
Regulatory Authority Notices
|
SCHEDULE 7.20
|
—
|
Capitalization
|
SCHEDULE 7.22
|
—
|
Broker’s Fee
|
SCHEDULE 7.23
|
—
|
Trade Compliance
|
SCHEDULE 7.26
|
—
|
Royalty and Other Payments
|
SCHEDULE 8.19
|
—
|
Certain Post-Funding Obligations
|
SCHEDULE 9.03
|
—
|
Subsidiaries to be Dissolved
|
SCHEDULE 9.05(a) | — | Existing Investments |
SCHEDULE 9.10 | — | Transactions with Affiliates |
EXHIBITS: | ||
EXHIBIT A | — | Form of Guarantee Assumption Agreement |
EXHIBIT B | — | Form of Borrowing Notice |
EXHIBIT C |
— | Form of Note |
EXHIBIT D | — | Form of U.S. Tax Compliance Certificate |
EXHIBIT E |
— | Form of Compliance Certificate |
EXHIBIT F | — | Form of Assignment Agreement |
EXHIBIT G-1 | — | Form of U.S. Security Agreement |
EXHIBIT G-2 | — | Form of Canadian Security Agreement |
EXHIBIT G-3 | — | Form of Irish Debenture |
EXHIBIT H-1 | — | Form of Patent and Trademark Security Agreement |
EXHIBIT H-2 | — | Form of Copyright Security Agreement |
EXHIBIT I |
— | Form of Collateral Questionnaire |
EXHIBIT J | — | Form of Warrant Certificate |
EXHIBIT K | — | Form of Intercompany Subordination Agreement |
EXHIBIT K | — | Form of Investor Subordination Agreement |
Twelve-Month Period Ended
|
Minimum Net Revenue
|
December 31, 2021
|
$91,213,000
|
March 31, 2022
|
$82,296,000
|
June 30, 2022
|
$74,166,000
|
September 30, 2022
|
$71,413,000
|
December 31, 2022
|
$73,307,000
|
March 31, 2023
|
$78,392,000
|
June 30, 2023
|
$83,484,000
|
September 30, 2023
|
$87,901,000
|
December 31, 2023
|
$92,305,000
|
March 31, 2024
|
$96,541,000
|
June 30, 2024
|
$100,623,000
|
September 30, 2024
|
$104,140,000
|
December 31, 2024
|
$108,238,000
|
March 31, 2025
|
$112,098,000
|
June 30, 2025
|
$115,410,000
|
September 30, 2025
|
$119,319,000
|
|
Borrowers:
Trinity Biotech, Inc.
By:________________________
Name:
Title:
Fitzgerald Industries International, Inc.
By:________________________
Name:
Title:
Clark Laboratories, Inc. (d/b/a Trinity Biotech (USA))
By:________________________
Name:
Title:
Biopool U.S., Inc. (d/b/a Trinity Biotech Distribution)
By:________________________
Name:
Title:
|
|
Primus Corporation
By:________________________
Name:
Title:
MarDx Diagnostics, Inc.
By:________________________
Name:
Title:
IMMCO Diagnostics, Inc.
By:________________________
Name:
Title:
|
|
Trinity Biotech plc
By:________________________
Name:
Title:
Trinity Research Limited
By:________________________
Name:
Title:
Trinity Biotech Financial Services Limited
By:________________________
Name:
Title:
Benen Trading Limited
By:________________________
Name:
Title:
Trinity Biotech Manufacturing Limited
By:________________________
Name:
Title:
Trinity Biotech Manufacturing Services Limited
By:________________________
Name:
Title:
|
|
Trinity Biotech (Joint Venture) Limited
By:________________________
Name:
Title:
Phoenix Bio-tech Corp.
By:________________________
Name:
Title:
Immco Diagnostics (Canada) Inc.
By:________________________
Name:
Title:
Nova Century Scientific Inc.
By:________________________
Name:
Title:
|
Lender
|
Commitment
|
Number of Warrant
American Depositary
Shares (represented
by American
Depositary Receipts)
|
Perceptive Credit
Holdings III, LP
|
$81,250,000
|
2,500,000
|