Attached files
| file | filename |
|---|---|
| EX-32.1 - EX-32.1 - Strongbridge Biopharma plc | sbbp-20200630xex32d1.htm |
| EX-31.2 - EX-31.2 - Strongbridge Biopharma plc | sbbp-20200630xex31d2.htm |
| EX-31.1 - EX-31.1 - Strongbridge Biopharma plc | sbbp-20200630xex31d1.htm |
| EX-10.3 - EX-10.3 - Strongbridge Biopharma plc | sbbp-20200630xex10d3.htm |
| EX-10.1 - EX-10.1 - Strongbridge Biopharma plc | sbbp-20200630xex10d1.htm |
| 10-Q - 10-Q - Strongbridge Biopharma plc | sbbp-20200630x10q.htm |
Exhibit 10.2
TERM LOAN AGREEMENT,
dated as of
May 19, 2020,
among
STRONGBRIDGE U.S. INC.,
as Borrower
STRONGBRIDGE BIOPHARMA PLC,
CORTENDO AB (PUBL),
STRONGBRIDGE DUBLIN LIMITED,
as Guarantors,
The other Subsidiary Guarantors from Time to Time Party Hereto,
The Lenders from Time to Time Party Hereto,
and
AVENUE VENTURE OPPORTUNITIES FUND, L.P.,
as Administrative Agent and Collateral Agent
U.S. $30,000,000
-ii-
-iii-
-iv-
-v-
-vi-
SCHEDULES AND EXHIBITS
Schedule 1 | - | Commitments |
Schedule 6.01 | - | Foreign Security Documents |
Schedule 7.05(b)(i) | - | Certain Intellectual Property |
Schedule 7.05(b)(ii) | - | Intellectual Property Exceptions |
Schedule 7.05(c) | - | Material Intellectual Property |
Schedule 7.06 | - | Certain Litigation |
Schedule 7.12 | - | Information Regarding Subsidiaries |
Schedule 7.13(a) | - | Existing Indebtedness of Parent Guarantor and its Subsidiaries |
Schedule 7.13(b) | - | Liens Granted by the Obligors |
Schedule 7.14 | - | Material Agreements of Obligors |
Schedule 7.15 | - | Restrictive Agreements |
Schedule 7.16 | - | Real Property Owned or Leased by Parent Guarantor or any Subsidiary |
Schedule 7.17 | - | Pension Matters |
Schedule 9.05 | - | Existing Investments |
Schedule 9.10 | - | Transactions with Affiliates |
Schedule 9.14 | - | Permitted Sales and Leasebacks |
| | |
Exhibit A | - | Form of Assumption Agreement |
Exhibit B | - | Form of Notice of Borrowing |
Exhibit C-l | - | Form of U.S. Tax Compliance Certificate |
Exhibit C-2 | - | Form of U.S. Tax Compliance Certificate |
Exhibit C-3 | - | Form of U.S. Tax Compliance Certificate |
Exhibit C-4 | - | Form of U.S. Tax Compliance Certificate |
Exhibit D | - | Form of Compliance Certificate |
Exhibit E | - | Reserved |
Exhibit F | - | Form of Landlord Consent |
Exhibit G | - | Form of Subordination Agreement |
Exhibit H | - | Reserved |
Exhibit I | - | Form of Warrant |
TERM LOAN AGREEMENT, dated as of May 19, 2020 (this “Agreement”), among STRONGBRIDGE U.S. INC., a Delaware corporation (“Borrower”), STRONGBRIDGE BIOPHARMA PUBLIC LIMITED COMPANY, a public limited company incorporated under the laws of Ireland (“Parent Guarantor”), STRONGBRIDGE DUBLIN LIMITED, a private limited company incorporated under the laws of Ireland (“Irish Guarantor”), CORTENDO AB (PUBL), a public limited liability company incorporated under the laws of Sweden with registration number 556537-6554 (“Swedish Guarantor” and together with the Borrower, Parent Guarantor, Irish Guarantor and each other Person that becomes, or is required to become, a “Subsidiary Guarantor” after the date hereof pursuant to Section 8.12(a) or (b), each an “Obligor” and collectively, the “Obligors”), and AVENUE VENTURE OPPORTUNITIES FUND, L.P., a Delaware limited partnership (“Avenue”), as administrative agent and collateral agent for the Lenders (in such capacities, together with its successors and assigns, “Administrative Agent”).
WITNESSETH:
Borrower have requested the Lenders to make term loans to Borrower, and the Lenders are prepared to make such loans on and subject to the terms and conditions hereof. Accordingly, the parties agree as follows:
“Accounting Change Notice” has the meaning set forth in Section 1.04(a).
“Acquisition” means any transaction, or any series of related transactions, by which any Person directly or indirectly, by means of a take-over bid, tender offer, amalgamation, merger, purchase or license of assets, or similar transaction having the same effect as any of the foregoing, (a) acquires any business or product, or any division, product or line of business or all or substantially all of the assets of any Person engaged in any business or any division, product or line of business, (b) acquires control of securities of a Person engaged in a business representing more than 50% of the ordinary voting power for the election of directors or other governing body if the business affairs of such Person are managed by a board of directors or other governing body, or (c) acquires control of more than 50% of the ownership interest in any Person engaged in any business that is not managed by a board of directors or other governing body.
“Act” has the meaning set forth in Section 13.17.
“Administrative Agent” has the meaning set forth in the introduction hereto.
“Affected Lender” has the meaning set forth in Section 2.06(a).
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“Affiliate” means, with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified.
“Agreement” has the meaning set forth in the introduction hereto.
“Anti-Corruption Laws” means all laws, rules, and regulations of any jurisdiction applicable to any Obligor, its Subsidiaries or Affiliates from time to time concerning or relating to bribery or corruption, including the United States Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder.
“Anti-Money Laundering Laws” means any and all laws, statutes, regulations or obligatory government orders, decrees, ordinances or rules applicable to an Obligor, its Subsidiaries or Affiliates related to terrorism financing or money laundering, including any applicable provision of the Act and The Currency and Foreign Transaction Reporting Act (also known as the “Bank Secrecy Act,” 31 U.S.C. §§5311-5330 and 12 U.S.C. §§ 1818(s), 1820(b) and 1951-1959).
“Asset Sale” has the meaning set forth in Section 9.09.
“Asset Sale Net Proceeds” means the aggregate amount of the cash proceeds received from any Asset Sale, net of any bona fide costs incurred in connection with such Asset Sale, plus, with respect to any non-cash proceeds of an Asset Sale, the fair market value of such non-cash proceeds as determined by the Majority Lenders, acting reasonably.
“Assignment and Assumption” means an assignment and assumption entered into by a Lender and an assignee of such Lender.
“Assumption Agreement” means a Guarantee or Borrower Assumption Agreement substantially in the form of Exhibit A by an entity that, pursuant to Section 8.12(a), is required to become a “Subsidiary Guarantor” or “Borrower” hereunder.
“Avenue” has the meaning set forth in the introduction hereto.
“Bankruptcy Code” means Title 11 of the United States Code entitled “Bankruptcy.”
“Basic Rate” means the per annum rate of interest (based on a year of three hundred sixty-five (365) days) equal to the sum of (I) the greater of (a) the Prime Rate reported in The Wall Street Journal on the last Business Day of the month that immediately precedes the month in which the interest will accrue, and (b) 3.25%, plus (II) 6.75%. Notwithstanding the foregoing, the Basic Rate shall not be less than 10%.
“Beneficiary” has the meaning set forth in Section 1.05.
“Benefit Plan” means any employee benefit plan as defined in Section 3(3) of ERISA (whether governed by the laws of the United States or otherwise) to which any Obligor or Subsidiary thereof incurs or otherwise has any obligation or liability, contingent or otherwise.
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“Borrower” has the meaning set forth in the introduction hereto.
“Borrower Facility” means the premises located at 900 Northbrook Drive, Suite 200, Trevose, PA 19053, which are leased by Borrower pursuant to the Borrower Lease.
“Borrower Landlord” means Northbrook TC Equities, Northbrook 134 West 93 Equities LLC, Northbrook Lemad Equities LLC, Northbrook CH Equities LLC, Northbrook Clinton Equities LLC, Northbrook UK1 Equities LLC, Northbrook Loken LLC, Northbrook HS Development LLC, Northbrook HS RK LLC, Northbrook TEIDIF LLC, as tenants in common.
“Borrower Lease” means the Lease dated November 27, 2017 by and between Borrower and Borrower Landlord.
“Borrower Party” has the meaning set forth in Section 13.03(b).
“Borrowing” means a borrowing consisting of Loans made on the same day by the Lenders according to their respective Commitments.
“Borrowing Date” means the date of a Borrowing.
“Borrowing Notice Date” means, (a) in the case of the first Borrowing, a date that is at least two (2) Business Days prior to the Borrowing Date of such Borrowing, (b) in the case of the second Borrowing, a date that is at least ten (10) Business Day prior to the Borrowing Date of such Borrowing and, (c) in the case of a subsequent Borrowing (that is not the first Borrowing or the second Borrowing), a date that is at least ten (10) Business Days prior to the Borrowing Date of such Borrowing.
“Business Day” means a day (other than a Saturday or Sunday) on which commercial banks are not authorized or required to close in New York City, New York.
“Capital Lease Obligations” means, as to any Person, the obligations of such Person to pay rent or other amounts under a lease of (or other agreement conveying the right to use) real and/or personal Property which obligations are required to be classified and accounted for as a capital lease on a balance sheet of such Person under GAAP and, for purposes of this Agreement, the amount of such obligations shall be the capitalized amount thereof, determined in accordance with GAAP.
“Change of Control” means (a) the acquisition of ownership, directly or indirectly, beneficially or legally (or otherwise of record), by any Person or group of Persons acting jointly or otherwise in concert of capital stock representing more than 49% of the aggregate ordinary voting power represented by the issued and outstanding capital stock of Parent Guarantor, (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 directors of Parent Guarantor by Persons who were neither (i) nominated by the board of directors of Parent Guarantor, nor (ii) appointed by directors so nominated, (c) the acquisition of direct or indirect Control of Parent Guarantor by any Person or group of Persons acting jointly or otherwise in concert; in each case whether as a result of a tender or exchange offer, open market purchases, privately negotiated purchases or
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otherwise, or (d) Borrower ceases to be a wholly owned direct or indirect subsidiary of Parent Guarantor.
“Claims” means any claims, demands, complaints, grievances, actions, applications, suits, causes of action, orders, charges, indictments, prosecutions, informations (brought by a public prosecutor without grand jury indictment) or other similar processes, assessments or reassessments.
“Closing Date” means May 19, 2020.
“Code” means the Internal Revenue Code of 1986, as amended from time to time, and the rules and regulations promulgated thereunder from time to time.
“Collateral” means any Property in which a Lien is purported to be granted under any of the Security Documents (or all such Property, as the context may require).
“Commitment” means, with respect to each Lender, the obligation of such Lender to make Loans to Borrower in accordance with the terms and conditions of this Agreement, which commitment is in the amount set forth opposite such Lender’s name on Schedule 1 under the caption “Commitment”, as such Schedule may be amended from time to time. The aggregate Commitments on the Closing Date hereof equal $20,000,000. In the event that investment committee approval is obtained pursuant to Section 6.03(d), the “Commitment” shall mean $30,000,000 as of the date of such investment committee approval and Schedule 1 shall be amended by the Administrative Agent to reflect the increased Commitment amount.
“Commitment Period” means the period from and including the first date on which all of the conditions precedent set forth in Section 6 have been satisfied (or waived by the Lenders) and through and including March 31, 2022.
“Compliance Certificate” has the meaning given to such term in Section 8.01(d).
“Connection Income Taxes” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.
“Contracts” means contracts, licenses, leases, agreements, obligations, promises, undertakings, understandings, arrangements, documents, commitments, entitlements or engagements under which a Person has, or will have, any liability or contingent liability (in each case, whether written or oral, express or implied).
“Control” means, in respect of a particular Person, the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have meanings correlative thereto.
“Controlled Foreign Corporation” means a “controlled foreign corporation” as defined in Section 957(a) of the Code.
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“Conversion Amount” has the meaning set forth in Section 10.02.
“Conversion Date” means the date immediately prior to the date any Lender exercises the Conversion Option by delivering a Conversion Notice in accordance with Section 10.02.
“Conversion Notice” has the meaning set forth in Section 10.02.
“Conversion Option” has the meaning set forth in Section 10.02.
“Conversion Price” means the Exercise Price multiplied by 120%.
“Copyright” has the meaning set forth in the Security Agreement.
“Default” means any Event of Default and any event that, upon the giving of notice, the lapse of time or both, would constitute an Event of Default.
“Default Rate” has the meaning set forth in Section 3.02(b).
“Defaulting Lender” means, subject to Section 2.05, any Lender that (a) has failed to perform any of its funding obligations hereunder, including in respect of its Loans, within three (3) Business Days of the date required to be funded by it hereunder, (b) has notified Borrower or any Lender that it does not intend to comply with its funding obligations or has made a public statement to that effect with respect to its funding obligations hereunder or under other agreements in which it commits to extend credit, (c) has failed, within three Business Days after written request by the Administrative Agent or the Borrower, to confirm in writing to the Administrative Agent and the Borrower that it will comply with its prospective funding obligations hereunder; provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and the Borrower), or (d) has, or has a direct or indirect parent company that has, (i) become the subject of an Insolvency Proceeding, (ii) had a receiver, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or a custodian appointed for it, or (iii) taken any action in furtherance of, or indicated its consent to, approval of or acquiescence in any such proceeding or appointment; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by the Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.05(b)) upon delivery of written notice of such determination to the Borrower and each Lender.
“Deposit Account” has the meaning set forth in the Security Agreement.
“Dollars” and “$” means lawful money of the United States of America.
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“Eligible Transferee” means and includes a commercial bank, an insurance company, a finance company, a financial institution, any investment fund that invests in loans or any other “accredited investor” (as defined in Regulation D of the Securities Act) that is principally in the business of managing investments or holding assets for investment purposes.
“Environmental Law” means any federal, state, provincial or local governmental law, rule, regulation, order, writ, judgment, injunction or decree relating to pollution or protection of the environment or the treatment, storage, disposal, release, threatened release or handling of hazardous materials, and all local laws and regulations related to environmental matters and any specific agreements entered into with any competent authorities which include commitments related to environmental matters.
“Equity Interest” means, with respect to any Person, any and all shares, interests, participations or other equivalents, including membership interests (however designated, whether voting or nonvoting), of equity of such Person, including, if such Person is a partnership, partnership interests (whether general or limited) and any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of property of, such partnership, but excluding debt securities convertible or exchangeable into such equity.
“Equivalent Amount” means, with respect to an amount denominated in one currency, the amount in another currency that could be purchased by the amount in the first currency determined by reference to the Exchange Rate at the time of determination.
“ERISA” means the United States Employee Retirement Income Security Act of 1974, as amended.
“ERISA Affiliate” means, collectively, any Obligor, Subsidiary thereof, and any Person under common control, or treated as a single employer, with any Obligor or Subsidiary thereof, within the meaning of Section 414(b), (c), (m) or (o) of the Code.
“ERISA Event” means (a) a reportable event as defined in Section 4043 of ERISA with respect to a Title IV Plan, excluding, however, such events as to which the PBGC by regulation has waived the requirement of Section 4043(a) of ERISA that it be notified within 30 days of the occurrence of such event; (b) the applicability of the requirements of Section 4043(b) of ERISA with respect to a contributing sponsor, as defined in Section 4001(a)(13) of ERISA, to any Title IV Plan where an event described in paragraph (9), (10), (11), (12) or (13) of Section 4043(c) of ERISA is reasonably expected to occur with respect to such plan within the following 30 days; (c) a withdrawal by any Obligor or any ERISA Affiliate thereof from a Title IV Plan or the termination of any Title IV Plan resulting in liability under Sections 4063 or 4064 of ERISA; (d) the withdrawal of any Obligor or any ERISA Affiliate thereof in a complete or partial withdrawal (within the meaning of Section 4203 and 4205 of ERISA) from any Multiemployer Plan if there is any potential liability therefore, or the receipt by any Obligor or any ERISA Affiliate thereof of notice from any Multiemployer Plan that it is in reorganization or insolvency pursuant to Section 4241 or 4245 of ERISA; (e) the filing of a notice of intent to terminate, the treatment of a plan amendment as a termination under Section 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a Title IV Plan or Multiemployer Plan;
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(f) the imposition of liability on any Obligor or any ERISA Affiliate thereof pursuant to Sections 4062(e) or 4069 of ERISA or by reason of the application of Section 4212(c) of ERISA; (g) the failure by any Obligor or any ERISA Affiliate thereof to make any required contribution to a Plan, or the failure to meet the minimum funding standard of Section 412 of the Code with respect to any Title IV Plan (whether or not waived in accordance with Section 412(c) of the Code) or the failure to make by its due date a required installment under Section 430 of the Code with respect to any Title IV Plan or the failure to make any required contribution to a Multiemployer Plan; (h) the determination that any Title IV Plan is considered an at-risk plan or a plan in endangered to critical status within the meaning of Sections 430, 431 and 432 of the Code or Sections 303, 304 and 305 of ERISA; (i) an event or condition which might reasonably be expected to constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Title IV Plan or Multiemployer Plan; (j) the imposition of any liability under Title I or Title IV of ERISA, other than PBGC premiums due but not delinquent under Section 4007 of ERISA, upon any Obligor or any ERISA Affiliate thereof; (k) an application for a funding waiver under Section 303 of ERISA or an extension of any amortization period pursuant to Section 412 of the Code with respect to any Title IV Plan; (1) the occurrence of a non-exempt prohibited transaction under Sections 406 or 407 of ERISA for which any Obligor or any Subsidiary thereof may be directly or indirectly liable; (m) the assertion of a material claim (other than routine claims for benefits) against any Plan or the assets thereof, or against any Obligor or any Subsidiary thereof in connection with any such plan; (n) receipt from the IRS of notice of the failure of any Qualified Plan to qualify under Section 401(a) of the Code, or the failure of any trust forming part of any Qualified Plan to fail to qualify for exemption from taxation under Section 501(a) of the Code; (o) the imposition of any lien (or the fulfillment of the conditions for the imposition of any lien) on any of the rights, properties or assets of any Obligor or any ERISA Affiliate thereof, in either case pursuant to Title I or IV, including Section 302(f) or 303(k) of ERISA or to Section 401(a)(29) or 430(k) of the Code; or (p) the establishment or amendment by any Obligor or any Subsidiary thereof of any “welfare plan”, as such term is defined in Section 3(1) of ERISA, that provides post-employment welfare benefits in a manner that would increase the liability of any Obligor.
“ERISA Funding Rules” means the rules regarding minimum required contributions (including any installment payment thereof) to Title IV Plans, as set forth in Sections 412, 430, 431, 432 and 436 of the Code and Sections 302, 303, 304 and 305 of ERISA.
“Event of Default” has the meaning set forth in Section 11.01.
“Exchange Rate” means the rate at which any currency (the “Pre-Exchange Currency”) may be exchanged into another currency (the “Post-Exchange Currency”), as set forth on such date on the relevant Reuters screen at or about 11:00 a.m. (Eastern time) on such date. In the event that such rate does not appear on the Reuters screen, the “Exchange Rate” with respect to exchanging such Pre-Exchange Currency into such Post-Exchange Currency shall be determined by reference to such other publicly available service for displaying exchange rates as may be agreed upon by Borrower and Administrative Agent or, in the absence of such agreement, such Exchange Rate shall instead be determined by Administrative Agent by any reasonable method as they deem applicable to determine such rate, and such determination shall be conclusive absent manifest error.
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“Excluded Foreign Subsidiary” means any Foreign Subsidiary that is (i) a Controlled Foreign Corporation or (ii) a Foreign Subsidiary owned by a Subsidiary described in clause (i).
“Excluded Taxes” means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient: (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes and branch profits Taxes, in each case (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof), or (ii) that are Other Connection Taxes, (b) U.S. Federal withholding Taxes that are imposed on amounts payable to a Lender to the extent that the obligation to withhold amounts existed on the date that (i) such Lender became a “Lender” under this Agreement (other than pursuant to an assignment request by Borrower under Section 5.03(g)), or (ii) such Lender changes its applicable lending office, except in each case to the extent such Lender is a direct or indirect assignee of any other Lender that was entitled, at the time the assignment of such other Lender became effective or to such Lender immediately before it changed its applicable lending office, to receive additional amounts under Section 5.03, (c) any U.S. Federal withholding Taxes imposed under FATCA, and (d) Taxes attributable to such Recipient’s failure to comply with Section 5.03(e).
“Exercise Price” means the lower of (i) $1.87 or (ii) the effective price of any bona fide equity financing prior to December 31, 2020.
“FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not more onerous to comply with), any regulations or official interpretations thereof and any agreements entered into pursuant to Section 1471(b)(1) of the Code.
“FDA” means the United States Food and Drug Administration.
“Federal Funds Effective Rate” means, for any day, the weighted average of the rates on overnight federal funds transactions with members of the Federal Reserve System arranged by federal funds brokers, as published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a Business Day, the average of the quotations for the day of such transactions received by Administrative Agent from three federal funds brokers of recognized standing selected by it.
“Final Payment” means a payment (in addition to and not a substitution for the regular monthly payments of principal plus accrued interest), due upon the earliest to occur of (a) the Maturity Date, (b) the acceleration of any Loan, or (c) the prepayment of a Loan pursuant to, and payable in accordance with, Section 3.03(a), equal to (x) $800,000 or (y), if the third Borrowing is provided, the sum of $800,000 plus 4% of the amount of the third Borrowing.
“First-Tier Foreign Subsidiary” means an Excluded Foreign Subsidiary that is a direct Subsidiary of an Obligor.
“Foreign Lender” means a Lender that is not a U.S. Person.
“Foreign Subsidiary” means a Subsidiary of any Obligor that is not a U.S. Person.
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“GAAP” means generally accepted accounting principles in the United States of America, as in effect from time to time, set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants, in the statements and pronouncements of the Financial Accounting Standards Board and in such other statements by such other entity as may be in general use by significant segments of the accounting profession that are applicable to the circumstances as of the date of determination. Subject to Section 1.02, all references to “GAAP” shall be to GAAP applied consistently with the principles used in the preparation of the financial statements described in Section 7.04(a).
“Governmental Approval” means any consent, authorization, approval, order, license, franchise, permit, certificate, accreditation, registration, filing or notice, of, issued by, from or to, or other act by or in respect of, any Governmental Authority.
“Governmental Authority” means any nation, government, branch of power (whether executive, legislative or judicial), state, province or municipality or other political subdivision thereof and any entity exercising executive, legislative, judicial, monetary, regulatory or administrative functions of or pertaining to government, including regulatory authorities, governmental departments, agencies, commissions, bureaus, officials, ministers, courts, bodies, boards, tribunals and dispute settlement panels, and other law-, rule- or regulation-making organizations or entities of any State, territory, county, city or other political subdivision of the United States.
“Guarantee” of or by any Person (the “guarantor”) means any obligation, contingent or otherwise, of the guarantor guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of the guarantor, direct or indirect, (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation or to purchase (or to advance or supply funds for the purchase of) any security for the payment thereof, (b) to purchase or lease property, securities or services for the purpose of assuring the owner of such Indebtedness or other obligation of the payment thereof, (c) to maintain working capital, equity capital or any other financial statement condition or liquidity of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation or (d) as an account party in respect of any letter of credit or letter of guaranty issued to support such Indebtedness or obligation; provided that the term Guarantee shall not include endorsements for collection or deposit in the ordinary course of business.
“Guaranteed Obligations” has the meaning set forth in Section 14.01.
“Hazardous Material” means any substance, element, chemical, compound, product, solid, gas, liquid, waste, by-product, pollutant, contaminant or material which is hazardous or toxic, and includes (a) asbestos, polychlorinated biphenyls and petroleum (including crude oil or any fraction thereof) and (b) any material classified or regulated as “hazardous” or “toxic” or words of like import pursuant to an Environmental Law.
“Hedging Agreement” means any interest rate exchange agreement, foreign currency exchange agreement, commodity price protection agreement or other interest or currency exchange rate or commodity price hedging arrangement.
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“Indebtedness” of any Person means, without duplication, (a) (i) all obligations of such Person for borrowed money or (ii) obligations of such Person with respect to deposits or advances of any kind by third parties (other than an Obligor), (b) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, (c) all obligations of such Person upon which interest charges are customarily paid, (d) all obligations of such Person under conditional sale or other title retention agreements relating to property acquired by such Person, (e) all obligations of such Person in respect of the deferred purchase price of property or services (excluding current accounts payable incurred in the ordinary course of business), (f) all Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on property owned or acquired by such Person, whether or not the Indebtedness secured thereby has been assumed, (g) all Guarantees by such Person of Indebtedness or other obligations of others, (h) all Capital Lease Obligations of such Person, (i) all obligations, contingent or otherwise, of such Person as an account party in respect of letters of credit and letters of guaranty, (j) obligations under any Hedging Agreement currency swaps, forwards, futures or derivatives transactions, (k) all obligations, contingent or otherwise, of such Person in respect of bankers’ acceptances, (1) all obligations of such Person under license or other agreements containing a guaranteed minimum payment or purchase by such Person, and (m) all Equity Interests of such Person subject to repurchase or redemption rights or obligations (excluding repurchases or redemptions at the sole option of such Person). The Indebtedness of any Person shall include the Indebtedness of any other entity (including any partnership in which such Person is a general partner) to the extent such Person is liable therefor as a result of such Person’s ownership interest in or other relationship with such entity, except to the extent the terms of such Indebtedness provide that such Person is not liable therefor.
“Indemnified Party” has the meaning set forth in Section 13.03(b).
“Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any Obligation and (b) to the extent not otherwise described in clause (a), Other Taxes.
“Insolvency Proceeding” means (a) any case, action or proceeding before any court or other Governmental Authority relating to bankruptcy, reorganization, insolvency, liquidation, receivership, dissolution, winding-up or relief of debtors, or (b) any general assignment for the benefit of creditors, composition, marshaling of assets for creditors, or other, similar arrangement in respect of any Person’s creditors generally or any substantial portion of such Person’s creditors, in each case undertaken under U.S. Federal, state or foreign law, including the Bankruptcy Code.
“Intellectual Property” means all Patents, Trademarks, Copyrights, and Technical Information, whether registered or not, domestic and foreign. Intellectual Property shall include all:
(a)applications or registrations relating to such Intellectual Property;
(b)rights and privileges arising under applicable Laws with respect to such Intellectual Property;
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(c)rights to sue for past, present or future infringements of such Intellectual Property; and
(d)rights of the same or similar effect or nature in any jurisdiction corresponding to such Intellectual Property throughout the world.
“Interest Period” means, with respect to each Borrowing, (a) initially, the period commencing on and including the Borrowing Date thereof and ending on and excluding the next Payment Date, and, (b) thereafter, each period beginning on and including the last day of the immediately preceding Interest Period and ending on and excluding the next succeeding Payment Date.
“Interest-Only Period” means the period from and including the first Borrowing Date and through and including (i) the twelfth (12th) Payment Date following the first Borrowing Date; (ii) if Borrower has achieved the LOGICS Positive Data Milestone, and so long as no Default or Event of Default has occurred and is continuing, the twenty-third (24th) Payment Date following the first Borrowing Date; and (iii) if Borrower has achieved the Recorlev NDA Approval Milestone and so long as no Default or Event of Default has occurred and is continuing, the thirty-sixth (36th) Payment Date following the first Borrowing Date.
“Invention” means any novel, inventive and useful art, apparatus, method, process, machine (including article or device), manufacture or composition of matter, or any novel, inventive and useful improvement in any art, method, process, machine (including article or device), manufacture or composition of matter.
“Investment” means, for any Person: (a) the acquisition (whether for cash, property, services or securities or otherwise) of capital stock, bonds, notes, debentures, partnership or other ownership interests or other securities of any other Person or any agreement to make any such acquisition (including any “short sale” or any sale of any securities at a time when such securities are not owned by the Person entering into such sale); (b) the making of any deposit with, or advance, loan or other extension of credit to, any other Person (including the purchase of property from another Person subject to an understanding or agreement, contingent or otherwise, to resell such property to such Person), but excluding any such advance, loan or extension of credit having a term not exceeding 90 days arising in connection with the sale of inventory or supplies by such Person in the ordinary course of business; (c) the entering into of any Guarantee of, or other contingent obligation with respect to, Indebtedness or other liability of any other Person and (without duplication) any amount committed to be advanced, lent or extended to such Person; or (d) the entering into of any Hedging Agreement.
“Irish Companies Act” means the Companies Act 2014 of Ireland.
“Irish Guarantor” has the meaning set forth in the introduction hereto.
“Irish Security Documents” means each Irish Debenture described on Schedule 6.01.
“IRS” means the U.S. Internal Revenue Service or any successor agency, and to the extent relevant, the U.S. Department of the Treasury.
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“Knowledge” means, with respect to any Person, the actual knowledge of the chief executive officer, executive chairman, chief financial officer or chief legal officer of Borrower, so long as such Person is an officer of Borrower.
“Landlord Consent” means a Landlord Consent substantially in the form of Exhibit F or such other form as reasonably acceptable to the Administrative Agent.
“Laws” means, collectively, all international, foreign, federal, state, provincial, territorial, municipal and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case whether or not having the force of law.
“Lender” means each Person listed as a “Lender” on a signature page hereto, together with its successors, and each assignee of a Lender pursuant to Section 13.05(b).
“Lien” means any mortgage, lien, pledge, charge or other security interest, or any lease, title retention agreement, mortgage, restriction, easement, right-of-way or other encumbrance of any kind or character whatsoever or any preferential arrangement that has the practical effect of creating a security interest.
“Loan” means each loan advanced by a Lender pursuant to Section 2.01.
“Loan Documents” means, collectively, this Agreement, the Security Documents, each Warrant, the Perfection Certificates, any subordination agreement or any intercreditor agreement entered into by Administrative Agent (on behalf of the Lenders) with any other creditors of Obligors or any agent acting on behalf of such creditors, and any other present or future document, instrument, agreement or certificate executed by Obligors and delivered to Administrative Agent or any Secured Party in connection with or pursuant to this Agreement or any of the other Loan Documents, all as amended, amended and restated, supplemented or otherwise modified.
“LOGICS Positive Data Milestone” means Borrower has achieved positive Phase 3 data in its LOGICS clinical trial, sufficient to submit a New Drug Application to the FDA.
“Loss” means judgments, debts, liabilities, expenses, costs, damages or losses, contingent or otherwise, whether liquidated or unliquidated, matured or unmatured, disputed or undisputed, contractual, legal or equitable, including loss of value, professional fees, including fees and disbursements of legal counsel on a full indemnity basis, and all costs incurred in investigating or pursuing any Claim or any proceeding relating to any Claim.
“Majority Lenders” means, at any time, Lenders having at such time in excess of 50% of the aggregate Commitments (or, if such Commitments are terminated, the outstanding principal amount of the Loans) then in effect, ignoring, in such calculation, the Commitments of and outstanding Loans owing to any Defaulting Lender.
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“Margin Stock” means “margin stock” within the meaning of Regulation U and Regulation X.
“Material Adverse Change” and “Material Adverse Effect” mean a material adverse change in or effect on (a) the business, condition (financial or otherwise), operations, performance or Property of Parent Guarantor and its Subsidiaries taken as a whole, (b) the ability of any Obligor to perform its obligations under the Loan Documents, or (c) the legality, validity, binding effect or enforceability of the Loan Documents or the rights and remedies of Administrative Agent or any Lender under any of the Loan Documents.
“Material Agreements” means (a) the agreements which are listed in Schedule 7.14 on the Closing Date, (b) material inbound and outbound license agreements and (c) all other agreements held by the Obligors from time to time, the absence or termination of any of which would reasonably be expected to result in a Material Adverse Effect; provided, however, that “Material Agreements” exclude all: (i) licenses implied by the sale of a product; and (ii) paid-up licenses for commonly available software programs under which an Obligor is the licensee. “Material Agreement” means any one such agreement.
“Material Indebtedness” means, at any time, any Indebtedness of any Obligor, the outstanding principal amount of which, individually or in the aggregate, exceeds $300,000 (or the Equivalent Amount in other currencies).
“Material Intellectual Property” means, the Obligor Intellectual Property described in Schedule 7.05(c) and any other Obligor Intellectual Property acquired after the Closing Date, the loss of which would reasonably be expected to have a Material Adverse Effect.
“Maturity Date” means the earlier to occur of (a) the Stated Maturity Date, and (b) the date on which the Loans are accelerated pursuant to Section 11.02.
“Maximum Rate” has the meaning set forth in Section 13.18.
“Multiemployer Plan” means any multiemployer plan, as defined in Section 4001(a)(3) of ERISA, to which any ERISA Affiliate incurs or otherwise has any obligation or liability, contingent or otherwise.
“Non-Consenting Lender” has the meaning set forth in Section 2.06(a).
“Notice of Borrowing” has the meaning set forth in Section 2.02.
“Obligations” means, with respect to any Obligor, all amounts, obligations, liabilities, covenants and duties of every type and description owing by such Obligor to Administrative Agent, any Lender or any other indemnitee hereunder, arising out of, under, or in connection with, any Loan Document (other than the Warrant), whether direct or indirect (regardless of whether acquired by assignment), absolute or contingent, due or to become due, whether liquidated or not, now existing or hereafter arising and however acquired, and whether or not evidenced by any instrument or for the payment of money, including, without duplication, (a) all Loans, (b) all interest, whether or not accruing after the filing of any petition in bankruptcy or after the commencement of any insolvency, reorganization or similar proceeding, and whether or
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not a claim for post-filing or post-petition interest is allowed in any such proceeding, and (c) all other fees, expenses (including fees, charges and disbursement of counsel), interest, commissions, charges, costs, disbursements, indemnities and reimbursement of amounts paid and other sums chargeable to such Obligor under any Loan Document (other than the Warrant).
“Obligor Intellectual Property” means Intellectual Property owned by or licensed to any of the Obligors.
“Obligors” has the meaning set forth in the introduction hereto.
“OFAC” means the Office of Foreign Assets Control of the United States Department of the Treasury.
“Option Shares” has the meaning set forth in Section 10.02(c).
“Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).
“Other Taxes” means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 5.03(g)).
“Parent Guarantor” has the meaning set forth in the introduction hereto.
“Participant” has the meaning set forth in Section 13.05(e).
“Participant Register” has the meaning set forth in Section 13.05(f).
“Patents” has the meaning set forth in the Security Agreement.
“Payment Date” means the first day of each month during the term hereof, and the Maturity Date, commencing on the first such date to occur following the first Borrowing Date; provided that, if any such date shall occur on a day that is not a Business Day, the applicable Payment Date shall be the immediately preceding Business Day.
“PBGC” means the United States Pension Benefit Guaranty Corporation referred to and defined in ERISA and any successor entity performing similar functions.
“Perfection Certificates” means each perfection certificate dated as of the Closing Date delivered by each Obligor to Administrative Agent.
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“Permitted Acquisition” means any acquisition by any Obligor, whether by purchase, merger, license or otherwise, of all or substantially all of the assets of, all of the Equity Interests of, or a business line or unit or a division or a product of, any Person; provided that:
(a)immediately prior to, and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing or would result therefrom;
(b)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;
(c)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 Parent Guarantor in connection with such acquisition, shall be owned 100% by an Obligor or any other Subsidiary, and Parent Guarantor shall have taken, or caused to be taken, each of the actions set forth in Section 8.12, if applicable;
(d)[Reserved];
(e)such Person (in the case of an acquisition of Equity Interests) or assets (in the case of an acquisition of assets or a division) (i) shall be engaged or used, as the case may be, in the same business or lines of business in which Parent Guarantor and/or its Subsidiaries are engaged or (ii) shall have a similar customer base as Parent Guarantor and/or its Subsidiaries; and
(f)concurrent with the earlier of the execution of the applicable acquisition agreement or the consummation of such acquisition, Borrower shall have provided Administrative Agent copies of the acquisition agreement and other material documents relative to the proposed acquisition.
“Permitted Cash Equivalent Investments” means (a) marketable direct obligations issued or unconditionally guaranteed by the United States or any agency or any State thereof having maturities of not more than two (2) years from the date of acquisition thereof, (b) commercial paper maturing no more than one (1) year after its creation and having the highest rating from either Standard & Poor’s Ratings Group or Moody’s Investors Service, Inc., and (c) Investments permitted by Parent Guarantor’s investment policy in effect on the Closing Date hereof, as amended from time to time, provided that such amendment thereto has been approved in writing by the Administrative Agent.
“Permitted Indebtedness” means any Indebtedness permitted under Section 9.01.
“Permitted Liens” means any Liens permitted under Section 9.02.
“Permitted Priority Liens” means (a) Liens permitted under Section 9.02(c), (d), (e), (f), (g), and (j), and (b) Liens permitted under Section 9.02(b); provided that such Liens are also of the type described in Section 9.02(c), (d), (e), (f), (g), and (j).
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“Permitted Refinancing” means, with respect to any Indebtedness, any extensions, renewals and replacements of such Indebtedness; provided that such extension, renewal or replacement (a) shall not increase the outstanding principal amount of such Indebtedness, (b) contains terms relating to outstanding principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole no less favorable in any material respect to Parent Guarantor and its Subsidiaries or the Secured Parties than the terms of any agreement or instrument governing such existing Indebtedness, (c) shall have an applicable interest rate which does not exceed the rate of interest of the Indebtedness being replaced, and (d) shall not contain any new requirement to grant any lien or security or to give any guarantee that was not an existing requirement of such Indebtedness.
“Permitted Subordinated Debt” means Indebtedness (a) that is governed by documentation containing representations, warranties, covenants and events of default no more burdensome or restrictive than those contained in the Loan Documents, (b) that has a maturity date later than the Stated Maturity Date, (c) in respect of which no cash payments of principal or interest are required prior to the Stated Maturity Date, (d) that converts into equity immediately upon the occurrence of an Event of Default, and (e) in respect of which the holders have agreed in favor of Borrower and Secured Parties (i) that prior to the date on which the Commitments have expired or been terminated and all Obligations have been paid in full indefeasibly in cash, such holders will not exercise any remedies available to them in respect of such Indebtedness, (ii) that such Indebtedness is and shall remain unsecured, and (iii) to terms of subordination in substantially the form attached hereto as Exhibit G and with such changes (if any) as are reasonably satisfactory to Administrative Agent, or such other form as reasonably acceptable to the Majority Lenders.
“Person” means any individual, corporation, company, voluntary association, partnership, limited liability company, joint venture, trust, unincorporated organization or Governmental Authority or other entity of whatever nature.
“Plan” means any employee pension benefit plan (other than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA, and in respect of which Parent Guarantor or any ERISA Affiliate is (or, if such plan were terminated, would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.
“Prepayment Premium” has the meaning set forth in Section 3.03(a).
“Pro Rata Final Payment” means the percentage of the Final Payment obtained by dividing (a) the principal amount of any Loan being prepaid pursuant to Section 3.03(a) by (b) the total amount of Loans made hereunder.
“Product” means KEVEYIS®, Recorlev, Veldoreotide and such other products as may be acquired or in-licensed by any Obligor, and each of their respective successors.
“Property” of any Person means any property or assets, or interest therein, of such Person.
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“Proportionate Share” means, with respect to any Lender, the percentage obtained by dividing (a) the Commitment (or, if the Commitments are terminated, the outstanding principal amount of the Loans) of such Lender then in effect by (b) the sum of the Commitments (or, if the Commitments are terminated, the outstanding principal amount of the Loans) of all Lenders then in effect.
“Qualified Plan” means an employee benefit plan (as defined in Section 3(3) of ERISA) other than a Multiemployer Plan (a) that is or was at any time maintained or sponsored by any Obligor or any ERISA Affiliate thereof or to which any Obligor or any ERISA Affiliate thereof has ever made, or was ever obligated to make, contributions, and (b) that is intended to be tax qualified under Section 401(a) of the Code.
“Qualified Securities” means fully paid, non-assessable and unrestricted ordinary shares of Parent Guarantor allotted and issued in accordance with Section 10.02.
“Recipient” means Administrative Agent, any Lender or any other recipient of any payment to be made by or on account of any Obligation.
“Recorlev NDA Approval Milestone” means Borrower obtains approval of the New Drug Application for Recorlev for the treatment of Endogenous Cushing’s syndrome from the FDA.
“Redemption Date” has the meaning set forth in Section 3.03(a).
“Redemption Price” has the meaning set forth in Section 3.03(a).
“Register” has the meaning set forth in Section 13.05(d).
“Regulation T” means Regulation T of the Board of Governors of the Federal Reserve System, as amended.
“Regulation U” means Regulation U of the Board of Governors of the Federal Reserve System, as amended.
“Regulation X” means Regulation X of the Board of Governors of the Federal Reserve System, as amended.
“Regulatory Approvals” means any registrations, licenses, authorizations, permits or approvals issued by any Governmental Authority and applications or submissions related to any of the foregoing.
“Related Person” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents, trustees, administrators, managers, advisors and representatives of such Person and of such Person’s Affiliates.
“Requirement of Law” means, as to any Person, any statute, law, treaty, rule or regulation or determination, order, injunction or judgment of an arbitrator or a court or other
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Governmental Authority, in each case applicable to or binding upon such Person or any of its Properties or revenues.
“Responsible Officer” of any Person means each of the president, chief operating officer, chief financial officer, chief executive officer, chief legal officer, and chief medical officer or controller of such Person.
“Restricted Payment” means any dividend or other distribution (whether in cash, securities or other property) with respect to any Equity Interest of Parent Guarantor or any of its Subsidiaries, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any such shares of capital stock, share capital or other Equity Interest of Parent Guarantor or any of its Subsidiaries or any option, warrant or other right to acquire any such shares of capital stock, share capital or other Equity Interest of Parent Guarantor or any of its Subsidiaries.
“Restrictive Agreement” has the meaning set forth in Section 7.15.
“Restructured Debt Securities” has the meaning set forth in Section 15.01.
“Revenue” of a Person means all revenue properly recognized under GAAP, consistently applied, less all rebates, discounts and other price allowances.
“Sanctioned Jurisdiction” means any country or territory to the extent that such country or territory is the subject of any Sanction.
“Sanctioned Person” means, at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by OFAC, the U.S. Department of State, the United Nations Security Council, the European Union, Her Majesty’s Treasury, or other relevant sanctions authority, (b) any Person operating, organized or resident in a Sanctioned Jurisdiction or (c) any Person owned or Controlled by any such person or Persons described in clauses (a) and (b).
“Sanctions” means any international economic sanction administered or enforced by the United States (including OFAC), the United Nations Security Council, the European Union, Her Majesty’s Treasury or other relevant sanctions authority.
“SEC” means the Securities and Exchange Commission, or any other Governmental Authority succeeding to any of its principal functions.
“Secured Parties” means the Lenders, Administrative Agent, each other Indemnified Party and any other holder of any Obligation.
“Securities Account” has the meaning set forth in the Security Agreement.
“Security Agreement” means the Security Agreement, dated as of the Closing Date, among the Obligors and Administrative Agent, granting a security interest in the Obligors’ personal Property in favor of the Secured Parties.
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“Security Documents” means, collectively, the Security Agreement, each Short-Form IP Security Agreement, the Swedish Security Document, the Irish Security Documents and each other security document, control agreement or financing statement required or recommended to perfect Liens in favor of the Secured Parties.
“Senior Indebtedness” has the meaning set forth in Section 15.01.
“Short-Form IP Security Agreements” means New York law short-form copyright, patent or trademark (as the case may be) security agreements, dated as of the Closing Date, entered into by one or more Obligors in favor of Administrative Agent, for the benefit of the Secured Parties, in respect of the Obligors’ United States Intellectual Property, each in form and substance reasonably satisfactory to Administrative Agent (and as amended, modified or replaced from time to time).
“Solvent” means, with respect to any Person at any time, that (a) the present fair saleable value of the Property of such Person is greater than the total amount of liabilities (including contingent liabilities) of such Person, (b) the present fair saleable value of the Property of such Person is not less than the amount that will be required to pay the probable liability of such Person on its debts as they become absolute and matured, and (c) such Person has not incurred and does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person’s ability to pay as such debts and liabilities mature.
“Stated Maturity Date” means May 19, 2024.
“Subordinated Intercompany Indebtedness” has the meaning set for in Section 15.01.
“Subsequent Financing” has the meaning set forth in Section 10.01.
“Subsidiary” means, with respect to any Person (the “parent”) at any date, any corporation, limited liability company, partnership, association or other entity the accounts of which would be consolidated with those of the parent in the parent’s consolidated financial statements if such financial statements were prepared in accordance with GAAP as of such date, as well as any other corporation, limited liability company, partnership, association or other entity (a) of which securities or other ownership interests representing more than 50% of the equity or more than 50% of the ordinary voting power or, in the case of a partnership, more than 50% of the general partnership interests are, as of such date, owned, controlled or held by the parent or one or more subsidiaries of the parent or by the parent and one or more subsidiaries of the parent or (b) that is, as of such date, otherwise Controlled by the parent or one or more subsidiaries of the parent or by the parent and one or more subsidiaries of the parent. Unless the context requires otherwise, “Subsidiary” refers to a Subsidiary of Parent Guarantor.
“Subsidiary Guarantors” means Parent Guarantor and each Subsidiary of Parent Guarantor that becomes, or is required to become, a “Subsidiary Guarantor” after the Closing Date pursuant to Section 8.12(a) or (b); provided that, as of the Closing Date, Irish Guarantor and Swedish Guarantor are “Subsidiary Guarantors”.
“Substitute Lender” has the meaning set forth in Section 2.06(a).
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“Swedish Guarantor” has the meaning set forth in the introduction hereto.
“Swedish Obligor” means an Obligor incorporated under the laws of Sweden.
“Swedish Security Document” means the Swedish share pledge agreement described on Schedule 6.01.
“Tax Affiliate” means (a) Parent Guarantor and its Subsidiaries, (b) each other Obligor and (c) any Affiliate of an Obligor with which such Obligor files or is eligible to file consolidated, combined or unitary Tax returns.
“Tax Returns” has the meaning set forth in Section 7.08.
“Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
“Technical Information” means all trade secrets and other proprietary or confidential information, public information, non-proprietary know-how, any information of a scientific, technical, or business nature in any form or medium, standards and specifications, conceptions, ideas, innovations, discoveries, Invention disclosures, all documented research, developmental, demonstration or engineering work and all other information, data, plans, specifications, reports, summaries, experimental data, manuals, models, samples, know-how, technical information, systems, methodologies, computer programs, information technology and any other information.
“Title IV Plan” means an employee benefit plan (as defined in Section 3(3) of ERISA) other than a Multiemployer Plan (i) that is or was at any time maintained or sponsored by any Obligor or any ERISA Affiliate thereof or to which any Obligor or any ERISA Affiliate thereof has ever made, or was obligated to make, contributions, and (ii) that is or was subject to Section 412 of the Code, Section 302 of ERISA or Title IV of ERISA.
“Trademarks” is defined in the Security Agreement.
“Transactions” means the execution, delivery and performance by each Obligor of this Agreement and the other Loan Documents to which such Obligor is intended to be a party and the Borrowings (and the use of the proceeds of the Loans).
“U.S. Person” means a “United States Person” within the meaning of Section 7701(a)(30) of the Code.
“U.S. Tax Compliance Certificate” has the meaning set forth in Section 5.03(e)(ii)(B)(3).
“United States” or “U.S.” means the United States of America.
“VWAP” means, for each trading day, the total amount of dollars traded for every transaction (price multiplied by the number of shares traded) involving Parent Guarantor’s ordinary shares, divided by the total number of Parent Guarantor’s ordinary shares traded.
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“Warrant” means each warrant to purchase Equity Interests of Parent Guarantor, issued by Parent Guarantor to the Lenders in connection with the Transactions substantially in the form of Exhibit I.
“Withdrawal Liability” means, at any time, any liability incurred (whether or not assessed) by any ERISA Affiliate and not yet satisfied or paid in full at such time with respect to any Multiemployer Plan pursuant to Section 4201 of ERISA.
“Withholding Agent” means any Obligor and Administrative Agent.
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agent for the Beneficiary in a separate account and shall promptly pay or transfer the same to the Beneficiary or as the Beneficiary may direct.
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Each Borrowing shall constitute a certification by Borrower to the effect that the conditions set forth in this Section 6.05 have been fulfilled as of the applicable Borrowing Date.
Each Obligor represents and warrants to Administrative Agent and the Lenders that:
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and other Requirements of Law, (x) there are no existing or pending (or to the Knowledge of any Obligor or Subsidiary thereof, threatened) claims (other than routine claims for benefits in the normal course), sanctions, actions, lawsuits or other proceedings or investigation involving any Benefit Plan to which any Obligor or Subsidiary thereof incurs or otherwise has or could have an obligation or any liability or Claim, (y) no ERISA Event is reasonably expected to occur and, as of the Closing Date, no ERISA Event has occurred in connection with which obligations and liabilities (contingent or otherwise) remain outstanding, and (z) no ERISA Affiliate would have any Withdrawal Liability as a result of a complete withdrawal from any Multiemployer Plan on the date this representation is made. Parent Guarantor and each of its ERISA Affiliates has met all applicable requirements under the ERISA Funding Rules with respect to each Title IV Plan, and no waiver of the minimum funding standards under the ERISA Funding Rules has been applied for or obtained. As of the most recent valuation date for any Title IV Plan, the funding target attainment percentage (as defined in Section 430(d)(2) of the Code) is at least 60%, and neither Parent Guarantor nor any of its ERISA Affiliates knows of any facts or circumstances that could reasonably be expected to cause the funding target attainment percentage to fall below 60% as of the most recent valuation date.
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Each Obligor covenants and agrees with Administrative Agent and the Lenders that, until the Commitments have expired or been terminated and all Obligations have been paid in full indefeasibly in cash:
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Notwithstanding the foregoing, documents required to be delivered pursuant to the terms of this Section 8.01 (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and, if so delivered, shall be deemed to have been delivered on the date on which the Parent Guarantor posts such documents, or provides a link thereto, on the Parent Guarantor’s website on the internet at the Parent Guarantor’s website address. For purposes of clarity, to the extent documents are posted electronically in accordance with SEC requirements, any requirement for prompt delivery under this Section 8.01 shall be deemed satisfied.
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Each notice delivered under this Section 8.02 shall be accompanied by a statement of a financial officer or other executive officer of Borrower setting forth the details of the event or development requiring such notice and any action taken or proposed to be taken with respect thereto.
Notwithstanding the foregoing, documents required to be delivered pursuant to the terms of clauses (d), (e), (g), (i) and (j) of this Section 8.02 (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and, if so delivered, shall be deemed to have been delivered on the date on which the Parent Guarantor posts such documents, or provides a link thereto, on the Parent Guarantor’s website on the internet at the Parent Guarantor’s website address. For purposes of clarity, to the extent documents required to be delivered pursuant to the terms of clauses (d), (e), (g), (i) and (j) of this Section 8.02 are posted electronically in accordance with SEC requirements, any requirement for prompt delivery under this Section 8.02 shall be deemed satisfied.
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others to ensure, that all insurance policies required under this Section 8.05 shall provide that they shall not be terminated or cancelled nor shall any such policy be materially changed in a manner adverse to such Obligor without at least 30 days’ prior written notice to such Obligor and Administrative Agent. Receipt of notice of termination or cancellation of any such insurance policies or reduction of coverages or amounts thereunder and, unless the Borrower have delivered evidence that it has obtained replacement insurance that satisfies the requirements of this Section, shall entitle the Administrative Agent to renew any such policies, cause the coverages and amounts thereof to be maintained at levels required pursuant to the first sentence of this Section 8.05 or otherwise to obtain similar insurance in place of such policies, in each case at the expense of such Obligor (payable on demand). The amount of any such expenses shall accrue interest at the Default Rate if not paid on demand, and shall constitute “Obligations.”
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Without limiting the generality of the foregoing, each Obligor will, and will cause each Person that is required to be a Subsidiary Guarantor to, take such action from time to time (including executing and delivering such assignments, security agreements, control agreements,
55
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applications and other instruments prepared by the Administrative Agent or its counsel) as shall be reasonably requested by Administrative Agent or the Majority Lenders to create, in favor of the Secured Parties, perfected security interests and Liens in substantially all of the 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, and limitations set forth in, the Security Documents.
Notwithstanding any provision under this Agreement or other Loan Documents to the contrary, (i) the Obligors shall not be required to take any actions in any jurisdiction outside the United States to grant or perfect a security interest in any asset to the extent the Administrative Agent determines that the costs or burdens thereof are disproportionate to the practical benefit obtained by the Secured Parties by reference to the costs or burdens of creating or perfecting the lien versus the value of the assets being secured, (ii) [reserved]; (iii) unless an Event of Default has occurred and is continuing under Sections 11.01(a), (b), (d) (solely in respect of Sections 9 and 10), (h), (i), (j), (m), (n), or (p), the Swedish Guarantor shall not be required to take any actions in Sweden except as required pursuant to the Swedish Security Document (if any); (iv) no Obligor shall be responsible for the reimbursement of legal and filing costs, duties, fees, expenses, stamp taxes, any other Taxes, and other amounts incurred or payable in respect of actions required to perfect the Liens on Intellectual Property in jurisdictions outside of the United States in excess of $15,000 in respect for each foreign jurisdiction, or $50,000 in the aggregate for all foreign jurisdictions; and (v) other than in respect of executing and delivering assignments, security agreements, control agreements, applications and other instruments prepared by the Administrative Agent or its counsel relating to Intellectual Property, no Subsidiary Guarantor or Borrower shall be obligated to take, or cause to be taken, any further steps to perfect any security interest or Lien granted in favor of the Secured Parties in the Intellectual Property (other than Material Intellectual Property) owned by the Obligors as of the Closing Date.
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after the date, if any, subsequent to such acquisition that such representations and warranties are brought down or made anew as provided herein).
Each Obligor covenants and agrees with Administrative Agent and the Lenders that, until the Commitments have expired or been terminated and all Obligations have been paid in full indefeasibly in cash:
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it, or assign or sell any income or revenues (including accounts receivable) or rights in respect of any thereof, except:
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provided that no Lien otherwise permitted under any of the foregoing Sections 9.02(b) through (l) shall apply to any Material Intellectual Property.
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through the date 18 months thereafter (any such sale, a “Subsequent Financing”), in an amount of up to $1,000,000 on the same terms, conditions and pricing afforded to others participating in any such Subsequent Financing; provided, however, that such terms shall exclude any seat on the board of directors of Parent Guarantor that may be offered to other investors participating in a Subsequent Financing.
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provided that if an order, decree or judgment is granted or entered (whether or not entered or subject to appeal) against Parent Guarantor or such Subsidiary thereunder in the interim, such grace period will cease to apply; provided further that if Parent Guarantor or such Subsidiary files an answer admitting the material allegations of a petition filed against it in any such proceeding, such grace period will cease to apply;
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greater proportion) and (iii) the exercise by Administrative Agent or the Majority Lenders (or, where so required, such greater proportion) of the powers set forth herein or therein, together with such other powers as are reasonably incidental thereto, shall be authorized and binding upon all of the Secured Parties.
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and, for each of the items set forth in clauses (i) through (iv) above, each Lender and each Obligor hereby waives and agrees not to assert any right, claim or cause of action it might have against Administrative Agent based thereon.
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connection with entering into, and taking or not taking any action under, any Loan Document or with respect to any transaction contemplated in any Loan Document, in each case based on such documents and information as it shall deem appropriate.
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Notwithstanding anything to the contrary herein, (a) [reserved]; and (b) a Defaulting Lender shall not have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent of all Lenders or each affected Lender may be effected with the consent of the applicable Lenders other than Defaulting Lenders), except that (x) the Commitment of any Defaulting Lender may not be increased or extended without the consent of such Lender and (y) any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender that by its terms affects any Defaulting Lender more adversely than other affected Lenders shall require the consent of such Defaulting Lender.
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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 Loans or any portion of any fee hereunder payable to the Participant, (iii) reduce the amount of any such payment of principal, or (iv) reduce the rate at which interest is payable thereon to a level below the rate at which the Participant is entitled to receive such interest. Subject to Section 13.05(f), Borrower agrees that each Participant shall be entitled to the benefits of Section 5 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to Section 13.05(b). To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 4.04(a) as though it were the Lender.
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For purposes of this Section, “Information” means all information furnished by Parent Guarantor or any of its Subsidiaries relating to Parent Guarantor or any of its Subsidiaries or any of their respective businesses, other than any such information that is available to Administrative Agent or any Lender on a nonconfidential basis prior to disclosure by Parent Guarantor or any of its Subsidiaries; provided that the source was not, to the knowledge of the Administrative Agent or such Lender, prohibited from disclosing such Information by a legal, contractual or fiduciary
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obligation. Any Person required to maintain the confidentiality of Information as provided in this Section 13.16 shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information.
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a legal or equitable discharge or defense of a surety or guarantor. The liability of each Subsidiary Guarantor is irrevocable, continuing, absolute and unconditional. Without limiting the generality of the foregoing, it is agreed that the occurrence of any one or more of the following shall not discharge, alter, impair or otherwise affect the liability of the Subsidiary Guarantors hereunder, which shall remain absolute and unconditional as described above, and each Subsidiary Guarantor hereby irrevocably waives any defenses to enforcement it may have (now or in the future) by reason of:
The Subsidiary Guarantors hereby expressly waive diligence, presentment, demand of payment, protest and all notices whatsoever, and any requirement that any Secured Party exhaust any right, power or remedy or proceed against any Obligor under this Agreement or any other agreement or instrument referred to herein, or against any other Person under any other guarantee of, or security for, any of the Guaranteed Obligations.
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rescission or restoration, including any such costs and expenses incurred in defending against any claim alleging that such payment constituted a preference, fraudulent transfer or similar payment under any bankruptcy, insolvency or similar law.
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For purposes of this Section 14.08, (i) “Excess Funding Guarantor” means, in respect of any Guaranteed Obligations, a Subsidiary Guarantor that has paid an amount in excess of its Pro rata Share of such Guaranteed Obligations, (ii) “Excess Payment” means, in respect of any Guaranteed Obligations, the amount paid by an Excess Funding Guarantor in excess of its Pro rata Share of such Guaranteed Obligations and (iii) “Pro rata Share” means, for any Subsidiary Guarantor, the ratio (expressed as a percentage) of (x) the amount by which the aggregate present fair saleable value of all properties of such Subsidiary Guarantor (excluding any shares of stock or share capital, as applicable, of any other Subsidiary Guarantor) exceeds the amount of all the debts and liabilities of such Subsidiary Guarantor (including contingent, subordinated, unmatured and unliquidated liabilities, but excluding the obligations of such Subsidiary Guarantor hereunder and any obligations of any other Subsidiary Guarantor that have been Guaranteed by such Subsidiary Guarantor) to (y) the amount by which the aggregate fair saleable value of all properties of all of the Subsidiary Guarantors exceeds the amount of all the debts and liabilities (including contingent, subordinated, unmatured and unliquidated liabilities, but excluding the obligations of Borrower and the Subsidiary Guarantors hereunder and under the other Loan Documents) of all of the Subsidiary Guarantors, determined (A) with respect to any Subsidiary Guarantor that is a party hereto on the first Borrowing Date, as of such Borrowing Date, and (B) with respect to any other Subsidiary Guarantor, as of the date such Subsidiary Guarantor becomes a Subsidiary Guarantor hereunder.
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[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered as of the day and year first above written.
BORROWER:
STRONGBRIDGE U.S. INC.
By/s/ Robert Lutz
Name:Robert Lutz
Address for Notices:
900 Northbrook Drive
Suite 200
Trevose, PA 19053
Attn:Chief Legal Officer
Tel.:610-254-9225
Fax:215-355-7389
Email:s.long@strongbridgebio.com
[Signature Page to Term Loan Agreement]
[Signatures Continued, Next Page]
DMS 17185250.10
SUBSIDIARY GUARANTORS:
STRONGBRIDGE BIOPHARMA PLC
By:/s/ Robert Lutz
Name:Robert Lutz
Title:Chief Financial Officer
Address for Notices:
900 Northbrook Drive
Suite 200
Trevose, PA 19053
Attn:Chief Legal Officer
Tel.:610-254-9225
Fax:215-355-7389
Email:s.long@strongbridgebio.com
[Signature Page to Term Loan Agreement]
[Signatures Continued, Next Page]
DMS 17185250.10
CORTENDO AB (PUBL)
By:/s/ Stephen Long
Name:Stephen J. Long
Title:Authorized Signatory
Address for Notices:
900 Northbrook Drive
Suite 200
Trevose, PA 19053
Attn:Chief Legal Officer
Tel.:610-254-9225
Fax:215-355-7389
Email:s.long@strongbridgebio.com
STRONGBRIDGE DUBLIN LIMITED
By: /s/ Stephen Long
Name:Stephen J. Long
Title:Authorized Signatory
Address for Notices:
900 Northbrook Drive
Suite 200
Trevose, PA 19053
Attn:Chief Legal Officer
Tel.:610-254-9225
Fax:215-355-7389
Email:s.long@strongbridgebio.com
[Signature Page to Term Loan Agreement]
[Signatures Continued, Next Page]
DMS 17185250.10
ADMINISTRATIVE AGENT:
AVENUE VENTURE OPPORTUNITIES FUND, L.P.
By/s/ Sonia Gardner
Name:
Title:
Address for Notices:
11 W. 42nd St., 9th Floor
New York, NY 10036
Attn:
Tel:
Fax:
Email:
LENDER:
AVENUE VENTURE OPPORTUNITIES FUND, L.P.
By/s/ Sonia Gardner
Name:
Title:
Address for Notices:
11 W. 42nd St., 9th Floor
New York, NY 10036
Attn:
Tel:
Fax:
Email:
[Signature Page to Term Loan Agreement]
DMS 17185250.10
Schedule 1
To Term Loan Agreement
COMMITMENTS
Lender | Commitment | Proportionate Share |
Avenue Venture Opportunities Fund, L.P. | $20,000,000.00 | 100.00% |
TOTAL | $20,000,000.00 | 100.00% |
DMS 17185250.10
Schedule 6.01
To Term Loan Agreement
FOREIGN SECURITY DOCUMENTS
1. | Swedish law share pledge agreement entered into by Strongbridge Biopharma plc with respect to the shares of Cortendo AB (publ) |
2. | Irish law Debenture entered into by Strongbridge Biopharma plc |
3. | Irish law Debenture entered into by Strongbridge Dublin Limited |
DMS 17185250.10
Schedule 7.05(b)(i)
To Term Loan Agreement
Certain Intellectual Property1
COR-003 | ||
|---|---|---|
Title / Owner / Inventor | Country/Number | Status |
Methods And Compositions For Treating Diabetes, Metabolic Syndrome And Other Conditions | Australia - 2006204334 | Issued |
Canada - 2594433 | Issued | |
China - 101141964 | Issued | |
Hong Kong - 1118449 | Issued | |
Indonesia - 32847 | Issued | |
Israel - 184459 | Issued | |
Japan - 5358095 | Issued | |
South Korea - 1013879100000 | Issued | |
Mexico - 294589 | Issued | |
New Zealand - 560481 | Issued | |
Norway 339007 | Issued | |
Singapore - 133978 | Issued | |
South Africa - 2007/06020 | Issued | |
Europe - 1853266 | Issued | |
*countries designated (AT, BE, BG, CH, CY, CZ, DE, DK, EE, ES, FI, FR, GB, GR, HU, IE, IT, LT, LU, LV, NL, PL, PT, RO, SE, SI, SK, TR) | Issued | |
US 9,918,984 | Issued | |
US 10,098,877 | Issued | |
US 10,517,868 | Issued | |
US 16/715,690 | Filed 12/16/2019 |
1 Intellectual property previously owned by Cortendo AB (publ) has been transferred to Strongbridge Dublin Limited in connection with an internal reorganization in 2018. Re-registrations of the transferred intellectual property in local patent office has not been undertaken in cases of patents that are not Material Intellectual Property.
DMS 17185250.10
COR-003 | ||
|---|---|---|
Title / Owner / Inventor | Country/Number | Status |
Ketoconazole Enantiomer in Humans | US 9,198,906 | Issued |
New Zealand - 576569 | Issued | |
Methods And Compositions For The Treatment Of Cushing’s Syndrome Using 2S,4R Ketoconazole | US 16/505,203 | Pending |
Ketoconazole Enantiomer in Humans | US 16/351,797 | Pending |
Levoketoconazole for Treatment of Classic Congenital Adrenal Hyperplasia | PCT/IB2019/001105 | Filed 10/11/2019 |
DMS 17185250.10
COR-005 | ||
|---|---|---|
Title / Owner / Inventor | Country/Number | Status |
Pharmaceutical Compositions Of Water Soluble Peptides With Poor Solubility In Isotonic Conditions And Methods For Their Use | PCT/IB17/00194 | Pending - countries designated: EP, JP, CA, CN, AU, BR, RU |
Australia App # 2017220728 | ||
Brazil App # BR1120180167746** | ||
Canada App #3,014,406 | ||
China App # 2017800238416 | ||
Europe App # 177142668 | ||
Japan App # 2018561098 | ||
Russia App # 2018132631 | ||
US 10,039,801 | Issued | |
US 10,398,751 | Issued | |
US 16/512,536 | Pending - Filed 7/16/2019 | |
KEVEYIS |
|
|
| |
|---|---|---|---|---|
Owner | Case Number | Application No. | Filing Date | Title |
STRONGBRIDGE DUBLIN LIMITED | STRG0001-201T-US | 16/201,410 | 11/27/2018 | METHODS OF TREATING DISEASE WITH DICHLORPHENAMIDE |
STRONGBRIDGE DUBLIN LIMITED | STRG0001-201TC1-US | 16/780,057 | 2/3/2020 | METHODS OF TREATING DISEASE WITH DICHLORPHENAMIDE |
STRONGBRIDGE DUBLIN LIMITED | STRG0001-201TD1-US | 16/535,704 | 8/8/2019 | METHODS OF TREATING DISEASE WITH DICHLORPHENAMIDE |
STRONGBRIDGE DUBLIN LIMITED | STRG0002-201T-US | 16/205,602 | 11/30/2018 | METHODS OF TREATING DISEASE WITH DICHLORPHENAMIDE |
STRONGBRIDGE DUBLIN LIMITED | STRG0002-201TD1-US | 16/540,447 | 8/14/2019 | METHODS OF TREATING DISEASE WITH DICHLORPHENAMIDE |
STRONGBRIDGE DUBLIN LIMITED | STRG0002-201TD2-US | 16/540,450 | 8/14/2019 | METHODS OF TREATING DISEASE WITH DICHLORPHENAMIDE |
DMS 17185250.10
KEVEYIS |
|
|
| |
|---|---|---|---|---|
Owner | Case Number | Application No. | Filing Date | Title |
STRONGBRIDGE DUBLIN LIMITED | STRG0002-201TD3-US | 16/540,456 | 8/14/2019 | METHODS OF TREATING DISEASE WITH DICHLORPHENAMIDE |
STRONGBRIDGE DUBLIN LIMITED | STRG0002-201TD4-US | 16/540,461 | 8/14/2019 | METHODS OF TREATING DISEASE WITH DICHLORPHENAMIDE |
STRONGBRIDGE DUBLIN LIMITED | STRG0002-201TD5-US | 16/540,464 | 8/14/2019 | METHODS OF TREATING DISEASE WITH DICHLORPHENAMIDE |
STRONGBRIDGE DUBLIN LIMITED | STRG0002-201TD6-US | 16/540,468 | 8/14/2019 | METHODS OF TREATING DISEASE WITH DICHLORPHENAMIDE |
STRONGBRIDGE DUBLIN LIMITED | STRG0003-201T-US | 16/253,505 | 1/22/2019 | METHODS OF TREATING DISEASE WITH DICHLORPHENAMIDE |
STRONGBRIDGE DUBLIN LIMITED | STRG0004-201T-US | 16/253,515 | 1/22/2019 | METHODS OF TREATING DISEASE WITH DICHLORPHENAMIDE |
STRONGBRIDGE DUBLIN LIMITED | STRG0004-201TC1-US | 16/535,692 | 8/8/2019 | METHODS OF TREATING DISEASE WITH DICHLORPHENAMIDE |
STRONGBRIDGE DUBLIN LIMITED | STRG0007-101-US | 62/863,125 | 6/18/2019 | DICHLORPHENAMIDE COMPOSITIONS AND METHODS OF USE |
STRONGBRIDGE DUBLIN LIMITED | STRG0008-101-US | 62/908,078 | 9/30/2019 | METHODS OF TREATING DISEASE WITH DICHLORPHENAMIDE |
STRONGBRIDGE DUBLIN LIMITED | STRG0001-401-PC | PCT/US19/63505 | 11/27/2019 | METHODS OF TREATING DISEASE WITH DICHLORPHENAMIDE |
STRONGBRIDGE DUBLIN LIMITED | STRG0002-401-PC | PCT/US19/63507 | 1/29/2020 | METHODS OF TREATING DISEASE WITH DICHLORPHENAMIDE |
STRONGBRIDGE DUBLIN LIMITED | STRG0004-401-PC | PCT/US20/14250 | 1/20/2020 | METHODS OF TREATING DISEASE WITH DICHLORPHENAMIDE |
DMS 17185250.10
NEXT GENERATION | ||
Title / Owner / Inventor | Country/Number | Status |
Novel Cytochrome P450 Inhibitors And Their Method Of Use | US 9,725,436 | Issued |
TRADEMARKS |
| |
|---|---|---|
Mark / Owner | Country/Number | Status |
NORMOCORT | Europe - CTM 010869048 | Registered |
STRONGBRIDGE | WO 1279854 | Registered |
US 5,237,588 | Registered | |
Australia 1279854 | Registered | |
China 1279854 | Registered | |
Europe - CTM 1279854 | Registered | |
Israel 1279854 | Registered | |
India 1279854 | Registered | |
Japan 1279854 | Registered | |
Mexico 1279854 | Pending | |
Turkey 1279854 | Registered | |
Brazil 910544115 | Registered | |
Canada 1741329 | Registered | |
CORYNTHIA | WO 1284986 | Registered |
Australia 1284986 | Registered | |
China 1284986 | Registered | |
Europe - CTM 1284986 | Registered | |
Israel 1284986 | Registered | |
DMS 17185250.10
TRADEMARKS |
| |
|---|---|---|
Mark / Owner | Country/Number | Status |
India 1284986 | Pending | |
Japan 1284986 | Registered | |
Turkey 1284986 | Registered | |
Brazil 910758875 | Registered | |
Canada 1054053 | Registered | |
RECORLEV | WO 1297646 | Registered |
US 5,851,851 | Registered | |
Canada 1069362 | Registered | |
Brazil 911007903 | Registered | |
Australia 1297646 | Registered | |
China 1297646 | Registered | |
Europe - CTM 1297646 | Registered | |
Israel 1297646 | Registered | |
India 1297646 | Registered | |
Japan 1297646 | Registered | |
Mexico 1297646 | Registered | |
Turkey 1297646 | Registered | |
BICYCLE DESIGN | US 5,869,431 | Registered |
RIDE FOR RARE DISEASES | US 5,771,699 | Registered |
DMS 17185250.10
Schedule 7.05(b)(ii)
To Term Loan Agreement
Intellectual Property EXCEPTIONS
None.
DMS 17185250.10
Schedule 7.05(c)
to Term Loan Agreement
Material Intellectual Property
COR-003 | ||
Title / Owner / Inventor | Country/Number | Status |
Methods And Compositions For Treating Diabetes, Metabolic Syndrome And Other Conditions | Canada - 2594433 | Issued |
| Europe – 1853266 * countries designated (DE, ES, FR, GB, IT) | Issued |
| US 9,918,984 | Issued |
| US 10,098,877 | Issued |
| US 10,517,868 | Issued |
| US 16/715,690 | Filed 12/16/2019 |
| ||
Ketoconazole Enantiomer in Humans | US 9,198,906 | Issued |
DMS 17185250.10
COR-005 | ||
|---|---|---|
Title / Owner / Inventor | Country/Number | Status |
Pharmaceutical Compositions Of Water Soluble Peptides With Poor Solubility In Isotonic Conditions And Methods For Their Use | PCT/IB17/00194 | Pending - countries designated: EP, JP, CA, CN, AU, BR, RU |
Australia App # 2017220728 | ||
Brazil App # BR1120180167746** | ||
Canada App #3,014,406 | ||
China App # 2017800238416 | ||
Europe App # 177142668 | ||
Japan App # 2018561098 | ||
Russia App # 2018132631 | ||
US 10,039,801 | Issued | |
US 10,398,751 | Issued | |
US 16/512,536 | Pending - Filed 7/16/2019 | |
KEVEYIS |
| |||
|---|---|---|---|---|
Owner | Case Number | Application No. | Filing Date | Title |
STRONGBRIDGE DUBLIN LIMITED | STRG0001-201T-US | 16/201,410 | 11/27/2018 | METHODS OF TREATING DISEASE WITH DICHLORPHENAMIDE |
STRONGBRIDGE DUBLIN LIMITED | STRG0001-201TC1-US | 16/780,057 | 2/3/2020 | METHODS OF TREATING DISEASE WITH DICHLORPHENAMIDE |
STRONGBRIDGE DUBLIN LIMITED | STRG0001-201TD1-US | 16/535,704 | 8/8/2019 | METHODS OF TREATING DISEASE WITH DICHLORPHENAMIDE |
STRONGBRIDGE DUBLIN LIMITED | STRG0002-201T-US | 16/205,602 | 11/30/2018 | METHODS OF TREATING DISEASE WITH DICHLORPHENAMIDE |
STRONGBRIDGE DUBLIN LIMITED | STRG0002-201TD1-US | 16/540,447 | 8/14/2019 | METHODS OF TREATING DISEASE WITH DICHLORPHENAMIDE |
DMS 17185250.10
KEVEYIS |
| |||
|---|---|---|---|---|
Owner | Case Number | Application No. | Filing Date | Title |
STRONGBRIDGE DUBLIN LIMITED | STRG0002-201TD2-US | 16/540,450 | 8/14/2019 | METHODS OF TREATING DISEASE WITH DICHLORPHENAMIDE |
STRONGBRIDGE DUBLIN LIMITED | STRG0002-201TD3-US | 16/540,456 | 8/14/2019 | METHODS OF TREATING DISEASE WITH DICHLORPHENAMIDE |
STRONGBRIDGE DUBLIN LIMITED | STRG0002-201TD4-US | 16/540,461 | 8/14/2019 | METHODS OF TREATING DISEASE WITH DICHLORPHENAMIDE |
STRONGBRIDGE DUBLIN LIMITED | STRG0002-201TD5-US | 16/540,464 | 8/14/2019 | METHODS OF TREATING DISEASE WITH DICHLORPHENAMIDE |
STRONGBRIDGE DUBLIN LIMITED | STRG0002-201TD6-US | 16/540,468 | 8/14/2019 | METHODS OF TREATING DISEASE WITH DICHLORPHENAMIDE |
STRONGBRIDGE DUBLIN LIMITED | STRG0003-201T-US | 16/253,505 | 1/22/2019 | METHODS OF TREATING DISEASE WITH DICHLORPHENAMIDE |
STRONGBRIDGE DUBLIN LIMITED | STRG0004-201T-US | 16/253,515 | 1/22/2019 | METHODS OF TREATING DISEASE WITH DICHLORPHENAMIDE |
STRONGBRIDGE DUBLIN LIMITED | STRG0004-201TC1-US | 16/535,692 | 8/8/2019 | METHODS OF TREATING DISEASE WITH DICHLORPHENAMIDE |
STRONGBRIDGE DUBLIN LIMITED | STRG0007-101-US | 62/863,125 | 6/18/2019 | DICHLORPHENAMIDE COMPOSITIONS AND METHODS OF USE |
STRONGBRIDGE DUBLIN LIMITED | STRG0008-101-US | 62/908,078 | 9/30/2019 | METHODS OF TREATING DISEASE WITH DICHLORPHENAMIDE |
STRONGBRIDGE DUBLIN LIMITED | STRG0001-401-PC | PCT/US19/63505 | 11/27/2019 | METHODS OF TREATING DISEASE WITH DICHLORPHENAMIDE |
STRONGBRIDGE DUBLIN LIMITED | STRG0002-401-PC | PCT/US19/63507 | 1/29/2020 | METHODS OF TREATING DISEASE WITH DICHLORPHENAMIDE |
STRONGBRIDGE DUBLIN LIMITED | STRG0004-401-PC | PCT/US20/14250 | 1/20/2020 | METHODS OF TREATING DISEASE WITH DICHLORPHENAMIDE |
DMS 17185250.10
TRADEMARKS | ||
|---|---|---|
Mark / Owner | Country/Number | Status |
STRONGBRIDGE | WO 1279854 | Registered |
US 5,237,588 | Registered | |
Europe - CTM 1279854 | Registered | |
Canada 1741329 | Registered | |
RECORLEV | WO 1297646 | Registered |
US 5,851,851 | Registered | |
Canada 1069362 | Registered | |
Europe - CTM 1297646 | Registered | |
DMS 17185250.10
Schedule 7.06
To Term Loan Agreement
CERTAIN LITIGATION
None.
DMS 17185250.10
Schedule 7.12
To Term Loan Agreement
INFORMATION REGARDING SUBSIDIARIES
Subsidiary | Jurisdiction of Organization | Direct Equity Holder | Percentage of Subsidiary held by Direct Equity Holder |
Cortendo AB (Publ) | Sweden | Strongbridge Biopharma PLC | 100% |
Strongbridge U.S. Inc. | Delaware | Cortendo AB (publ) | 100% |
Strongbridge Dublin Limited | Ireland | Strongbridge Biopharma PLC | 100% |
DMS 17185250.10
Schedule 7.13(a)
To Term Loan Agreement
EXISTING INDEBTEDNESS OF PARENT GUARANTOR AND ITS SUBSIDIARIES
Part I
| 1. | Intra-group loan agreement dated 10 July 2019 pursuant to which the Company granted Strongbridge Dublin Limited a loan of USD 200,000,000 in four tranches. |
Part II
| 1. | Intra-group loan agreement dated 10 July 2019 pursuant to which the Company granted Strongbridge Dublin Limited a loan of USD 200,000,000 in four tranches. |
DMS 17185250.10
Schedule 7.13(b)
To Term Loan Agreement
LIENS GRANTED BY THE OBLIGORS
Part I
None.
Part II
None.
DMS 17185250.10
Schedule 7.14
To Term Loan Agreement
MATERIAL AGREEMENTS OF OBLIGORS
Refer to the contracts listed in the Exhibit Index to our 2019 10-K filed with the SEC on February 28th, 2020.
DMS 17185250.10
Schedule 7.15
To Term Loan Agreement
RESTRICTIVE AGREEMENTS
None.
DMS 17185250.10
Schedule 7.16
To Term Loan Agreement
Real Property Owned or Leased by PARENT guarantor OR ANY SUBSIDiARY
None.
Strongbridge U.S. Inc. | 900 Northbrook Dr., Trevose PA | Leased office |
Strongbridge Biopharma plc | Fitzwilliam Hall, Suite 206, Fitzwilliam Place, Dublin 2, Ireland | Leased office |
DMS 17185250.10
Schedule 7.17
To Term Loan Agreement
PENSION MATTERS
None.
DMS 17185250.10
Schedule 9.05
To Term Loan Agreement
EXISTING INVESTMENTS
None.
DMS 17185250.10
Schedule 9.10
To Term Loan Agreement
TRANSACTIONS WITH AFFILIATES
None.
DMS 17185250.10
Schedule 9.14
To Term Loan Agreement
PERMITTED SALES AND LEASEBACKS
None.
DMS 17185250.10
Exhibit A
To Term Loan Agreement
FORM OF GUARANTEE ASSUMPTION AGREEMENT
GUARANTEE ASSUMPTION AGREEMENT dated as of [DATE] by [NAME OF ADDITIONAL SUBSIDIARY GUARANTOR, a ___________ [corporation] [limited liability company] [other type of business entity] (the “Additional Obligor”), in favor of AVENUE VENTURE OPPORTUNITIES FUND, L.P., as administrative agent and collateral agent (the “Administrative Agent”) for the benefit of the Secured Parties under that certain Term Loan Agreement, dated as of May 19, 2020 (as amended, amended and restated, supplemented or otherwise modified from time to time, the “Loan Agreement”), among STRONGBRIDGE U.S. INC., a Delaware corporation (“Borrower”), STRONGBRIDGE BIOPHARMA PUBLIC LIMITED COMPANY, a public limited company incorporated under the laws of Ireland (“Parent Guarantor”), STRONGBRIDGE DUBLIN LIMITED, a private limited company incorporated under the laws of Ireland (“Irish Guarantor”), CORTENDO AB (PUBL), a public limited liability company incorporated under the laws of Sweden with registration number 556537-6554 (“Swedish Guarantor” and together with the Borrower, Parent Guarantor, Irish Guarantor and each other Person that becomes, or is required to become, a “Subsidiary Guarantor” after the date hereof pursuant to Section 8.12(a) or (b) thereof, each an “Obligor” and collectively, the “Obligors”), Administrative Agent, the lenders from time to time party thereto and the Subsidiary Guarantors from time to time party thereto. The terms defined in the Loan Agreement are herein used as therein defined.
Pursuant to Section 8.12(a) of the Loan Agreement, the Additional Obligor hereby agrees to become a “Subsidiary Guarantor” for all purposes of the Loan Agreement, and a “Grantor” for all purposes of the Security Agreement. Without limiting the foregoing, the Additional Obligor hereby, jointly and severally with the other Guarantors, guarantees to the Lenders and their successors and assigns the prompt payment in full when due (whether at stated maturity, by acceleration or otherwise) of all Guaranteed Obligations (as defined in Section 14.01 of the Loan Agreement) in the same manner and to the same extent as is provided in Section 14 of the Loan Agreement. In addition, as of the date hereof, the Additional Obligor hereby makes the representations and warranties set forth in Sections 7.01, 7.02, 7.03, 7.05(a), 7.06, 7.07, 7.08 and 7.18 of the Loan Agreement, and in Section 2 of the Security Agreement, with respect to itself and its obligations under this Agreement and the other Loan Documents, as if each reference in such Sections to the Loan Documents included reference to this Agreement, such representations and warranties to be made as of the date hereof.
The Additional Obligor hereby instructs its counsel to deliver the opinions referred to in Section 8.12(a) of the Loan Agreement to Administrative Agent.
IN WITNESS WHEREOF, the Additional Obligor has caused this Guarantee Assumption Agreement to be duly executed and delivered as of the day and year first above written.
Exhibit A-1
[ADDITIONAL SUBSIDIARY GUARANTOR]
By
Exhibit A-2
Exhibit B
To Term Loan Agreement
FORM OF NOTICE OF BORROWING
Avenue Venture Opportunities Fund, L.P.
11 West 42nd Street, 9th Floor
New York, New York 10036
Reference is made to the Term Loan Agreement, dated as of May 19, 2020 (as the same may be amended, amended and restated, supplemented or otherwise modified from time to time, the “Loan Agreement”; the capitalized terms used herein as defined therein), among, among others, Avenue Venture Opportunities Fund, L.P., as administrative agent and collateral agent (in such capacities, the “Administrative Agent”), the lenders party thereto (each a “Lender” and collectively, the “Lenders”), and STRONGBRIDGE U.S. INC. (“Borrower”).
The undersigned is the [Chief Financial Officer] of Borrower and hereby requests on behalf of Borrower a Loan under the Loan Agreement, and in that connection certifies as follows:
1.The amount of the proposed Loan is _______________________ Dollars ($_________________). The date of the proposed Loan is ___________________ (the “Borrowing Date”).
(a)On the Borrowing Date, the Lenders will wire $[__________], less fees and expenses to be deducted on the Borrowing Date of $[_________] [with respect to the first Borrowing, only: [less $125,000 in respect of the commitment fee which has been paid to the Lenders prior to the date hereof,]] for net proceeds of $[___________] to Borrower pursuant to the following wire instructions:
Institution Name: | Silicon Valley Bank |
Address: | |
ABA No.: | |
Contact Name: | |
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Phone No.: | |
E-mail: | |
Account Title: | |
Account No.: | |
(b)On the Borrowing Date, the Lenders will wire the following amounts for fees and expenses in accordance with the respective following wire instructions:2
Amount: | $ |
Institution Name: | Fifth Third Bank |
Address: | 251 North Illinois Ave, Indianapolis, IN 46204 |
ABA No.: | 042000314 |
E-mail: | Please send remittance information to: wireconfirmations@btlaw.com |
Account Title: | Barnes & Thornburg LLP Attorney Operating Account |
Account No.: | 7653510706 |
Amount: | $ |
Institution Name: | |
Address: | |
ABA No.: | |
Contact Name: | |
Phone No.: | |
E-mail: | |
Account Title: | |
Account No.: | |
2.As of the date of this request and as of the Borrowing Date:
(a)Borrower (on behalf of itself and the other Credit Parties) hereby represents and warrants that no Default has occurred and is continuing, or will result from the making of the proposed Loan or the application of the proceeds thereof;
2 The executed Borrowing Request must be delivered 2 Business Days prior to the Closing Date.
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DMS 17185250.10
(b)Borrower (on behalf of itself and the other Credit Parties) hereby represents and warrants that the representations and warranties contained in Section 7 of the Loan Agreement are true and correct on and as of the Borrowing Date, and immediately after giving effect to the application of the proceeds of the proposed Loan, with the same force and effect as if made on and as of such date (except that the representations and warranties that refer to a specific earlier date were true and correct on such earlier date);
(c)Borrower (on behalf of itself and the other Credit Parties) hereby represents and warrants that no Material Adverse Effect has occurred since the end of the period covered by the financial statements most recently delivered pursuant to Section 8.01(b) or is reasonably likely to occur after giving effect the proposed Loan; and
(d)Borrower hereby represents and warrants that the conditions precedent described in Section 6, with respect to the relevant Borrowing, and Section 6.05 of the Loan Agreement, with respect to each Borrowing, have been met.
Remainder of this page intentionally left blank; signature page follows
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DMS 17185250.10
Borrower shall notify you promptly before the funding of the Loan if any of the matters to which I have certified above shall not be true and correct on the Borrowing Date.
Very truly yours,
STRONGBRIDGE U.S. INC.
Title:*
[Signature Page to Notice of Borrowing]
* Must be executed by Borrower’s Chief Financial Officer or other Responsible Officer.
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DMS 17185250.10
Exhibit C-1
To Term Loan Agreement
FORM OF U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes)
Reference is hereby made to the Term Loan Agreement dated as of May 19, 2020 (as amended, amended and restated, supplemented or otherwise modified from time to time, the “Loan Agreement”), among STRONGBRIDGE U.S. INC., a Delaware corporation (the “Borrower"), STRONGBRIDGE BIOPHARMA PUBLIC LIMITED COMPANY, a public limited company incorporated under the laws of Ireland (“Parent Guarantor”), STRONGBRIDGE DUBLIN LIMITED, a private limited company incorporated under the laws of Ireland (“Irish Guarantor”), CORTENDO AB (PUBL), a public limited liability company incorporated under the laws of Sweden with registration number 556537-6554 (“Swedish Guarantor” and together with the Borrower, Parent Guarantor, Irish Guarantor and each other Person that becomes, or is required to become, a “Subsidiary Guarantor” after the date thereof pursuant to Section 8.12(a) or (b) thereof, each an “Obligor” and collectively, the “Obligors”), Avenue Venture Opportunities Fund, L.P., as administrative agent and collateral agent (in such capacities, the “Administrative Agent”), and each lender from time to time party thereto.
Pursuant to the provisions of Section 5.03 of the Term Loan Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the Loan(s) in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code and (iv) it is not a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished the Administrative Agent and the Borrower with a certificate of its non-U. S. Person status on IRS Form W-8BEN or W-8BEN-E, as applicable. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform the Borrower and the Administrative Agent, and (2) the undersigned shall have at all times furnished the Borrower and the Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Loan Agreement and used herein shall have the meanings given to them in the Loan Agreement.
[Signature follows]
Exhibit C-1-1
IN WITNESS WHEREOF, the undersigned has caused this certificate to be duly executed and delivered as of the date indicated below.
[NAME OF NON-U. S. LENDER]
By
Name:
Title:
Date:
Exhibit C-1-2
Exhibit C-2
To Term Loan Agreement
FORM OF U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes)
Reference is hereby made to the Term Loan Agreement dated as of May 19, 2020 (as amended, amended and restated, supplemented or otherwise modified from time to time, the “Loan Agreement”), among STRONGBRIDGE U.S. INC., a Delaware corporation (“Borrower”), STRONGBRIDGE BIOPHARMA PUBLIC LIMITED COMPANY, a public limited company incorporated under the laws of Ireland “Parent Guarantor”), STRONGBRIDGE DUBLIN LIMITED, a private limited company incorporated under the laws of Ireland (“Irish Guarantor”), CORTENDO AB (PUBL), a public limited liability company incorporated under the laws of Sweden with registration number 556537-6554 (“Swedish Guarantor” and together with the Borrower, Parent Guarantor, Irish Guarantor and each other Person that becomes, or is required to become, a “Subsidiary Guarantor” after the date thereof pursuant to Section 8.12(a) or (b) thereof, each an “Obligor” and collectively, the “Obligors”), Avenue Venture Opportunities Fund, L.P., as administrative agent and collateral agent (in such capacities, the “Administrative Agent”), and each lender from time to time party thereto.
Pursuant to the provisions of Section 5.03 of the Loan Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the participation in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code, and (iv) it is not a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished its participating Lender with a certificate of its non-U.S. Person status on IRS Form W-8BEN or W-8BEN-E, as applicable. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform such Lender in writing, and (2) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Loan Agreement and used herein shall have the meanings given to them in the Loan Agreement.
[Signature follows]
Exhibit C-2-1
IN WITNESS WHEREOF, the undersigned has caused this certificate to be duly executed and delivered as of the date indicated below.
[NAME OF NON-U.S. LENDER]
By
Name:
Title:
Date:
Exhibit C-2-2
Exhibit C-3
To Term Loan Agreement
FORM OF U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes)
Reference is hereby made to the Term Loan Agreement dated as of May 19, 2020 (as amended, amended and restated, supplemented or otherwise modified from time to time, the “Loan Agreement”), among STRONGBRIDGE U.S. INC., a Delaware corporation (“Borrower”), STRONGBRIDGE BIOPHARMA PUBLIC LIMITED COMPANY, a public limited company incorporated under the laws of Ireland “Parent Guarantor”), STRONGBRIDGE DUBLIN LIMITED, a private limited company incorporated under the laws of Ireland (“Irish Guarantor”), CORTENDO AB (PUBL), a public limited liability company incorporated under the laws of Sweden with registration number 556537-6554 (“Swedish Guarantor” and together with the Borrower, Parent Guarantor, Irish Guarantor and each other Person that becomes, or is required to become, a “Subsidiary Guarantor” after the date thereof pursuant to Section 8.12(a) or (b) thereof, each an “Obligor” and collectively, the “Obligors”), Avenue Venture Opportunities Fund, L.P., as administrative agent and collateral agent (in such capacities, the “Administrative Agent”), and each lender from time to time party thereto.
Pursuant to the provisions of Section 5.03 of the Loan Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the participation in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such participation, (iii) with respect such participation, neither the undersigned nor any of its direct or indirect partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its direct or indirect partners/members is a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code and (v) none of its direct or indirect partners/members is a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished its participating Lender with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or W-8BEN-E, as applicable, or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN or W-8BEN-E, as applicable, from each of such partner’s/member’s beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform such Lender and (2) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Loan Agreement and used herein shall have the meanings given to them in the Loan Agreement.
[Signature follows]
Exhibit C-3-1
IN WITNESS WHEREOF, the undersigned has caused this certificate to be duly executed and delivered as of the date indicated below.
[NAME OF NON-U.S. LENDER]
By
Name:
Title:
Date:
Exhibit C-3-2
Exhibit C-4
To Term Loan Agreement
FORM OF U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Lenders That Are Partnerships For U.S. Federal Income Tax Purposes)
Reference is hereby made to the Term Loan Agreement dated as of May 19, 2020 (as amended, amended and restated, supplemented or otherwise modified from time to time, the “Loan Agreement”), among STRONGBRIDGE U.S. INC., a Delaware corporation (“Borrower”), STRONGBRIDGE BIOPHARMA PUBLIC LIMITED COMPANY, a public limited company incorporated under the laws of Ireland “Parent Guarantor”), STRONGBRIDGE DUBLIN LIMITED, a private limited company incorporated under the laws of Ireland (“Irish Guarantor”), CORTENDO AB (PUBL), a public limited liability company incorporated under the laws of Sweden with registration number 556537-6554 (“Swedish Guarantor” and together with the Borrower, Parent Guarantor, Irish Guarantor and each other Person that becomes, or is required to become, a “Subsidiary Guarantor” after the date thereof pursuant to Section 8.12(a) or (b) thereof, each an “Obligor” and collectively, the “Obligors”), Avenue Venture Opportunities Fund, L.P., as administrative agent and collateral agent (in such capacities, the “Administrative Agent”), and each lender from time to time party thereto.
Pursuant to the provisions of Section 5.03 of the Loan Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the Loan(s) in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such Loan(s), (iii) with respect to the extension of credit pursuant to this Loan Agreement or any other Loan Document, neither the undersigned nor any of its direct or indirect partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its direct or indirect partners/members is a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code and (v) none of its direct or indirect partners/members is a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished the Administrative Agent and the Borrower with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or W-8BEN-E, as applicable, or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN or W-8BEN-E, as applicable, from each of such partner’s/member’s beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform the Borrower and the Administrative Agent, and (2) the undersigned shall have at all times furnished the Borrower and the Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Loan Agreement and used herein shall have the meanings given to them in the Loan Agreement.
[Signature follows]
Exhibit C-4-1
IN WITNESS WHEREOF, the undersigned has caused this certificate to be duly executed and delivered as of the date indicated below.
[NAME OF NON-U.S. LENDER]
By
Name:
Title:
Date:
Exhibit C-4-2
Exhibit D
To Term Loan Agreement
FORM OF COMPLIANCE CERTIFICATE
Avenue Venture Opportunities Fund, L.P.
11 West 42nd Street, 9th Floor
New York, New York 10036
Re:STRONGBRIDGE U.S. INC. (for itself and on behalf of the other Obligors party to the Loan Agreement (as defined below))
Ladies and Gentlemen:
Reference is made to the Term Loan Agreement, dated as of May 19, 2020 (as the same may be amended, amended and restated, supplemented or otherwise modified from time to time, the “Loan Agreement”; the capitalized terms used herein as defined therein), among, among others, Avenue Venture Opportunities Fund, L.P., as administrative agent and collateral agent (in such capacities, the “Administrative Agent”), and the lenders party thereto (each a “Lender” and collectively, the “Lenders”), and STRONGBRIDGE U.S. INC. (for itself and on behalf of all other Credit Parties (under and as defined in the Loan Agreement), “Borrower”).
The undersigned Responsible Officer of Borrower hereby certifies in such capacity that in accordance with the terms and conditions of the Loan Agreement, (i) no Event of Default has occurred and is continuing, except as noted below, and (ii) Borrower is in compliance for the financial reporting period ending ____________________________ with all required financial reporting under Section 8.01 of the Loan Agreement, except as noted below. Attached herewith are the required documents supporting the foregoing certification. The undersigned Responsible Officer of Borrower further certifies in such capacity that: (a) the accompanying financial statements have been prepared in accordance with GAAP consistently applied for such period; and (b) the financial statements fairly present in all material respects the financial condition and operating results of Parent Guarantor and its Subsidiaries as of the dates, and for the periods, indicated therein, subject to the absence of footnotes and normal year-end audit adjustments (in the case of interim monthly financial statements), except as explained below.
Please provide the following requested information and indicate compliance status by circling (or otherwise indicating) Yes/No under “Included/Complies”:
| Reporting Covenant | Requirement | Actual | Complies | ||
1) | Financial statements | Monthly within 30 days; Quarterly within 45 days | | Yes | No | N/A |
2) | Annual (CPA Audited) statements | Within 90 days after FYE | | Yes | No | N/A |
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3) | Annual Financial Projections/Budget (prepared on a monthly basis) | Annually (within 10 days of FYE), and when revised | | Yes | No | N/A |
4) | 8-K, 10-K and 10-Q Filings | Within 5 days of filing | | Yes | No | N/A |
5) | Compliance Certificate | Monthly within 30 days; Annually within 90 days | | Yes | No | N/A |
6) | IP Report | Quarterly within 45 days | | Yes | No | N/A |
7) | Total amount of Borrower’s cash and cash equivalents at the last day of the measurement period | | $_______ | Yes | No | N/A |
8) | Total amount of Borrower’s Subsidiaries’ cash and cash equivalents at the last day of the measurement period | | $_______ | Yes | No | N/A |
Deposit and Securities Accounts
(Please list all accounts; attach separate sheet if additional space needed)
| Credit Party / | Account Number | New Account? | Account Control Agreement in place? | ||
1) | | | Yes | No | Yes | No |
2) | | | Yes | No | Yes | No |
3) | | | Yes | No | Yes | No |
4) | | | Yes | No | Yes | No |
Other Matters
1) | Have there been any changes in management since the last Compliance Certificate? | Yes | No |
| | | |
2) | Have there been any Asset Sales or any transfers/sales/disposals/retirement of Collateral or IP prohibited by the Loan Agreement? | Yes | No |
| | | |
3) | Have there been any new or pending claims or causes of action against any Credit Party that involve more than One Hundred Thousand Dollars ($100,000.00)? | Yes | No |
| | | |
4) | Have there been any amendments of or other changes to Operating Documents of any Credit Party or any of its Subsidiaries? If yes, provide | Yes | No |
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copies of any such amendments or changes with this Compliance Certificate. | |||
5) | Has any Credit Party directly or indirectly acquired or created, or does any Credit Party intend, directly or indirectly, to acquire or create, any Subsidiary or other Person other than any Excluded Foreign Subsidiary not required to be a Subsidiary Guarantor or Borrower under Section 8.12(b)(i) of the Loan Agreement? If yes, has such Subsidiary or Person been made a guarantor of the Obligations? Please complete the table below. | Yes | No |
| Name: | Jurisdiction of formation or organization:3 | Co-borrower or guarantor ? | Complies? | New Subsidiary or Person? |
1.) | _______________________ | ______________________ | YES / NO | YES / NO | YES / NO |
2.) | _______________________ | _______________________ | YES / NO | YES / NO | YES / NO |
3.) | _______________________ | _______________________ | YES / NO | YES / NO | YES / NO |
4.) | ________________________ | _______________________ | YES / NO | YES / NO | YES / NO |
Exceptions
Please explain any exceptions with respect to the certification above: (If no exceptions exist, state “No exceptions.” Attach separate sheet if additional space needed.)
[Remainder of this page intentionally left blank; signature page follows]
3 Under the “Explanations” heading (see below) please include a description of such Subsidiary’s or Person’s fully diluted capitalization and Borrower’s purpose for its acquisition or creation of such Subsidiary if such information has not been previously furnished to Lender.
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IN WITNESS WHEREOF, the undersigned has executed this certificate on the date first written above.
STRONGBRIDGE U.S. INC.,
for itself and on behalf of all Credit Parties party to the Loan Agreement
By:
Name:
Title:*
[Signature page to Compliance Certificate]
* Must be executed by Borrower’s Chief Financial Officer or other executive officer.
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Annex A to Compliance Certificate
FINANCIAL STATEMENTS
[see attached]
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Exhibit E
To Term Loan Agreement
[RESERVED]
Exhibit E
Exhibit F
To Term Loan Agreement
FORM OF LANDLORD CONSENT
RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
AVENUE VENTURE OPPORTUNITIES FUND, L.P.
11 W. 42nd St., 9th Floor
New York, NY 10036
Attn:
CONSENT TO REMOVAL OF PERSONAL PROPERTY
KNOW ALL PERSONS BY THESE PRESENTS:
(a)This Consent to Removal of Personal Property is dated as of May 19, 2020.
(b)The undersigned has an interest in the real property at the location described on Attachment 1 (the “Real Property”).
(c)STRONGBRIDGE BIOPHARMA PUBLIC LIMITED COMPANY, a public limited company incorporated under the laws of Ireland with company number 562659 and having its registered office at Fitzwilliam Hall, Suite 206, Fitzwilliam Place, Dublin 2, Ireland (“Parent Guarantor”), STRONGBRIDGE DUBLIN LIMITED, a private limited company incorporated under the laws of Ireland (“Irish Guarantor”), CORTENDO AB (PUBL), a public limited liability company incorporated under the laws of Sweden with corporate identity number 556537-6554 (“Swedish Guarantor”) and STRONGBRIDGE U.S. INC., a Delaware corporation with an office located at 900 Northbrook Drive, Suite 200, Trevose, Pennsylvania 19053 (“Borrower” and together with Parent Guarantor, Irish Guarantor and Swedish Guarantor, individually and collectively, jointly and severally, “Obligor”), has entered into or will enter into a Term Loan Agreement with AVENUE VENTURE OPPORTUNITIES FUND, L.P. as Administrative Agent and Collateral Agent (“Avenue” and in such capacity, “Collateral Agent”), the lenders that become a party thereto from time to time (each a “Lender” and collectively, the “Lenders”), (as amended, amended and restated, supplemented or otherwise modified from time to time, the “Loan Agreement”). As a condition to entering into the Loan Agreement, Collateral Agent and Lenders require that the undersigned consent to the removal by Collateral Agent of Obligor’s personal property assets serving as collateral for Obligor’s obligations to Collateral Agent and Lenders under the Loan Agreement (hereinafter called “Collateral”) from the Real Property.
NOW, THEREFORE, the undersigned consents to the placing of the Collateral on the Real Property, and agrees with Collateral Agent as follows:
1.The undersigned waives and releases each and every right which undersigned now has under applicable law or by virtue of the lease for the Real Property now in effect, to
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levy or distrain upon for rent, in arrears, in advance or both, or to claim or assert title to the Collateral that is located on the Real Property.
2.The Collateral shall be considered to be personal property and shall not be considered part of the Real Property regardless of whether or by what means it is or may become attached or affixed to the Real Property. The undersigned shall (a) provide written notice to Collateral Agent of any termination or expiration of the lease (a “Termination Notice”), and (b) will not dispose of any of the Collateral nor assert any right or interest therein unless it has first sent such Termination Notice to Collateral Agent and has given Collateral Agent a reasonable period of time (in any case, not less than thirty (30) days after Collateral Agent’s receipt of such Termination Notice) to exercise Collateral Agent’s rights in and to the Collateral.
3.The undersigned will permit Collateral Agent, or its agent or representative, to enter upon the Real Property for the purpose of exercising any right Collateral Agent may have under the terms of the Loan Agreement, at law, or in equity, including, without limitation, the right to remove the Collateral; provided, however, that if Collateral Agent, in removing the Collateral, causes any physical damage to the Real Property, Collateral Agent, will, at its expense, cause the same to be repaired to the condition such Real Property was in prior to said damage; provided, further, Collateral Agent shall not be liable for any diminution in value of the Real Property caused by the absence of any item Collateral so removed. If Obligor abandons the Collateral located on the Real Property upon termination or expiration of the Lease, Collateral Agent shall have the option to remove the Collateral from the Real Property within thirty (30) days after receipt of written notice thereof from the undersigned or Collateral Agent’s right to such Collateral shall be deemed forfeited. Notwithstanding the foregoing, Collateral Agent shall not have any duty or obligation to remove or dispose of any Collateral or any other property left on the Real Property by the Obligor.
4.This agreement shall be binding upon the successors and assigns of the undersigned and shall inure to the benefit of Collateral Agent and its successors and assigns.
[Balance of Page Intentionally Left Blank]
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NORTHBROOK
TC EQUITIES LLC
NORTHBROOK 134 WEST 93
EQUITIES LLC
NORTHBROOK LEMAD EQUITIES
LLC
NORTHBROOK CH EQUITIES LLC
NORTHBROOK CLINTON EQUITIES
LLC
NORTHBROOK UK1 EQUITIES LLC
NORTHBROOK LOKEN LLC
NORTHBROOK HS DEVELOPMENT
LLC
NORTHBROOK HS RK LLC
NORTHBROOK TEIDIF LLC
As Tenants in Common, as
Landlord
By:
Name:
Title:
AVENUE VENTURE OPPORTUNITIES FUND, L.P., as Administrative
Agent and Collateral Agent
By:
Name:
Title:
Acknowledged and agreed:
OBLIGORS:
Given under the common seal of STRONGBRIDGE
BIOPHARMA PUBLIC LIMITED COMPANY and
delivered as a deed
By:
Name:
Title: _________________________
Exhibit F-3
[SIGNATURE PATE TO LANDLORD CONSENT]
By:
Name:
Title: _________________________
CORTENDO AB (PUBL)
By:
Name:
Title:
Exhibit F-3
[SIGNATURE PATE TO LANDLORD CONSENT]
STRONGBRIDGE U.S. INC.
By:
Name:
Title:
STRONGBRIDGE DUBLIN LIMITED
By:
Name:
Title:
Exhibit F-4
[SIGNATURE PATE TO LANDLORD CONSENT]
Attachment 1
Approximately 22,069 rentable square feet of space located in Suites 200 and 250 of that certain building located at 900 Northbrook Drive, Trevose, Pennsylvania 19053.
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Exhibit G
To Term Loan Agreement
FORM OF SUBORDINATION AGREEMENT
This Subordination Agreement is made as of [ ] (this “Agreement”) among AVENUE VENTURE OPPORTUNITIES FUND, L.P., a Delaware limited partnership “Senior Agent”), and [ ], a [ ] [corporation] (“Subordinated Creditor”).
A.[APPLICABLE CREDIT PARTY], a [ ] (“Credit Party”), will, as of the date hereof, issue in favor of Subordinated Creditor the Subordinated Note (as defined below).
B.Senior Creditors, Credit Party and certain of its subsidiaries and affiliates have entered into the Senior Loan Agreement (as defined below), and Senior Agent, Credit Party and certain of its subsidiaries and affiliates have entered into the Senior Security Agreement (as defined below) under which Credit Party and such subsidiaries and affiliates have granted a security interest in the Collateral (as defined below) in favor of the Senior Creditors as security for the payment of Credit Party’s obligations under the Senior Loan Agreement.
C.To induce Lenders under and as defined in the Senior Loan Agreement referred to below to make and maintain the credit extensions to the Credit Party and the other borrowers under the Senior Loan Agreement, Subordinated Creditor is willing to subordinate the Subordinated Debt (as defined below) to the Senior Debt (as defined below) on the terms and conditions herein set forth.
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
“Bankruptcy Code” means title 11 of the United States Code, 11 U.S.C. §§ 101 et seq.
“Collateral’ has the meaning set forth in the Senior Security Agreement.
“Enforcement Action” means, with respect to any indebtedness, obligation (contingent or otherwise) or Collateral at any time held by any lender or noteholder, (i) commencing, by judicial or non-judicial means, the enforcement of, or otherwise attempting to enforce, such indebtedness, obligation or Collateral of any of the default remedies under any of the applicable agreements or documents of such lender or noteholder, the UCC or other applicable law (other than the mere issuance of a notice of default or notice of the right by such lender or noteholder to seek specific performance with respect to any covenants in favor of such lender or noteholder), (ii) repossessing, selling, leasing or otherwise disposing of all or any part of such Collateral, including without limitation causing any attachment of, levy upon, execution against, foreclosure upon or the taking of other action against or institution of other proceedings with respect to any Collateral, or exercising account debtor or obligor notification or collection rights with respect to all or any portion thereof, or attempting or agreeing to do so, (iii) appropriating, setting off or applying to such lender or noteholder’s claim any part or all of such Collateral or other property
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in the possession of, or coming into the possession of, such lender or noteholder or its agent, trustee or bailee, (iv) asserting any claim or interest in any insurance with respect to such indebtedness, obligation or Collateral, (v) instituting or commencing, or joining with any Person in commencing, any action or proceeding with respect to any of the foregoing rights or remedies (including any action of foreclosure, enforcement, collection or execution and any Insolvency Event involving any Obligor), (vi) exercising any rights under any lockbox agreement, account control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which the Subordinated Creditor is a party or (vii) otherwise enforcing, or attempting to enforce, any other rights or remedies under or with respect to any such indebtedness, obligation or Collateral.
“Insolvency Event” means that any Obligor or any of its subsidiaries shall have (i) applied for, consented to or acquiesced in the appointment of a trustee, receiver or other custodian for it or any of its property, or (ii) made a general assignment for the benefit of creditors or similar arrangement in respect of such Obligor’s or subsidiary’s creditors generally or any substantial portion thereof, or (iii) permitted, consented to, or suffered to exist the appointment of a trustee, receiver or other custodian for it or for a substantial part of its property, or (iv) commenced any case, action or proceeding before any court or other governmental agency or authority relating to bankruptcy, reorganization, insolvency, debt arrangement or relief or other case, action or proceeding under any bankruptcy or insolvency law, or any dissolution, winding up or liquidation case, action or proceeding, including without limitation any case under the Bankruptcy Code, in respect of it, or (v) (A) permitted, consented to, or suffered to exist the commencement of any case, action or proceeding before any court or other governmental agency or authority relating to bankruptcy, reorganization, insolvency, debt arrangement or relief or other case, action or proceeding under any bankruptcy or insolvency law, or any dissolution, winding up or liquidation case, action or proceeding, including without limitation any case under the Bankruptcy Code, in respect of it, or (B) any such case, action or proceeding shall have resulted in the entry of an order for relief or shall have remained for sixty (60) days undismissed.
“Obligor” has the meaning set forth in the Senior Loan Agreement.
“Person” has the meaning set forth in the Senior Loan Agreement.
“Senior Creditors” means Senior Agent and the Lenders under and as defined in the Senior Loan Agreement.
“Senior Debt” means the Obligations (as defined in the Senior Loan Agreement).
“Senior Discharge Date” means the first date on which all of the Senior Debt (other than contingent indemnification obligations has been paid indefeasibly in full in cash and all commitments of Senior Lenders under the Senior Loan Documents have been terminated.
“Senior Loan Agreement” means that certain Term Loan Agreement, dated as of May 19, 2020, by and among Strongbridge U.S. Inc., as borrower, Strongbridge Biopharma Public Limited Company, as guarantor, Strongbridge Dublin Limited, as guarantor, and Cortendo AB (publ), as guarantor, the other subsidiary guarantors from time to time party thereto, and the
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Senior Creditors, as amended, amended and restated, supplemented or otherwise modified from time to time.
“Senior Loan Documents” means, collectively, the Loan Documents (as defined in the Senior Loan Agreement), in each case as amended, amended and restated, supplemented or otherwise modified from time to time.
“Senior Security Agreement” means that certain Security Agreement, dated as of May 19, 2020, among each Obligor party thereto, and Senior Agent, as amended, amended and restated, supplemented or otherwise modified from time to time.
“Subordinated Debt” means and includes all obligations, liabilities and indebtedness of APPLICABLE CREDIT PARTY] owed to Subordinated Creditor, whether direct or indirect, absolute or contingent, due or to become due, or now existing or hereafter incurred, including without limitation, principal, premium (if any), interest, fees, charges, expenses, costs, professional fees and expenses, and reimbursement obligations.
“Subordinated Debt Documents’“ means, collectively, the Subordinated Note and each other loan document or agreement entered into by [APPLICABLE CREDIT PARTY] in connection with the Subordinated Note, as amended, amended and restated, supplemented or otherwise modified from time to time.
“Subordinated Note” means that certain $[ ] subordinated promissory note, dated [_______], issued by [APPLICABLE CREDIT PARTY] to Subordinated Creditor, as amended, amended and restated, supplemented or otherwise modified from time to time.
“UCC’ means the Uniform Commercial Code of any applicable jurisdiction and, if the applicable jurisdiction shall not have any Uniform Commercial Code, the Uniform Commercial Code as in effect in the State of New York.
(b)Subordinated Creditor acknowledges that the Senior Creditors have been granted liens upon the Collateral, and Subordinated Creditor hereby consents thereto and to the incurrence of the Senior Debt.
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(c)Until the Senior Discharge Date, in the event of any private or public sale or other disposition of all or any portion of the Collateral, Subordinated Creditor agrees that such Collateral shall be sold or otherwise disposed of free and clear of any liens in favor of Subordinated Creditor. Subordinated Creditor agrees that any such sale or disposition of Collateral shall not require any consent from Subordinated Creditor, and Subordinated Creditor hereby waives any right it may have to object to such sale or disposition.
(b)Subordinated Creditor must deliver to the Senior Agent in the form received (except for endorsement or assignment by Subordinated Creditor) any payment, distribution, security or proceeds it receives on the Subordinated Debt other than according to this Agreement.
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(b)Without limiting the generality of the other provisions of this Agreement, until the Senior Discharge Date, without the express written consent of the Senior Agent, Subordinated Creditor shall not institute or commence (nor shall it join with or support any third party instituting, commencing, opposing, objecting or contesting, as the case may be, or otherwise suffer to exist), any Insolvency Event involving Credit Party or any other Obligor.
(c)The Senior Creditors shall have the right to enforce rights, exercise remedies (including set-off and the right to credit bid its debt) and make determinations regarding the release, disposition, or restrictions with respect to the Collateral without any consultation with or consent of Subordinated Creditor.
(d)Subordinated Creditor will not, and hereby waives any right to bring, join in, or otherwise support or take any action to (i) contest the validity, legality, enforceability, perfection, priority or avoidability of any of the Senior Debt, any of the Senior Loan Documents or any security interests and/or liens of the Senior Creditors on or in any property or assets of Credit Party or any other Obligor, including without limitation, the Collateral; (ii) interfere with or in any manner oppose or support any other Person in opposing any foreclosure on or other disposition of any Collateral by the Senior Creditors in accordance with applicable law, or otherwise to contest, protest, object to or interfere with the manner in which the Senior Creditors may seek to enforce the Liens on any Collateral; (iii) provide a debtor-in-possession facility (including on a priming basis) to Credit Party or any other Obligor, under Section 362, 363 or 364 of the Bankruptcy Code or any other applicable law, without the consent, in their sole discretion, of the Senior Creditors; or (iv) exercise any rights against the Senior Creditors or the Collateral under Section 506(c) of the Bankruptcy Code.
(e)Subordinated Creditor will not, and hereby waives any right to, oppose, contest, object to, join in, or otherwise support any opposition to or objection with respect to, (i) any request or motion of the Senior Creditors seeking, pursuant to Section 362(d) of the Bankruptcy Code or otherwise, the modification, lifting or vacating of the automatic stay of Section 362(a) of the Bankruptcy Code or from any other stay in connection with any Insolvency Event or seeking adequate protection of the Senior Creditors’ interests in the Collateral or with respect to the Senior Debt (whether under Sections 362, 363, and/or 364 of the Bankruptcy Code or other applicable law), and, until Senior Discharge Date, Subordinated Creditor agrees that it shall not seek relief from such automatic stay without the prior written consent of the Senior Agent; (ii) any debtor-in-possession financing (including on a priming basis) or use of cash collateral (as
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defined in Section 363(a) of the Bankruptcy Code or other applicable law) arrangement by Credit Party or any other Obligor, whether from the Senior Creditors or any other third party under Section 362, 363 or 364 of the Bankruptcy Code or any other applicable law, if the Senior Creditors, in their sole discretion, consent to such debtor-in-possession financing or cash collateral arrangement, and Subordinated Creditor shall not request adequate protection (whether under Sections 362, 363, and/or 364 of the Bankruptcy Code or other applicable law) or any other relief in connection therewith; (iii) any sale or other disposition of the Collateral or substantially all of the assets of Credit Party or any other Obligor (include any such sale free and clear of liens or other claims) under Section 363 of the Bankruptcy Code or other applicable law if the Senior Creditors, in their sole discretion, consent to such sale or disposition; (vii) the Senior Creditors’ exercise or enforcement of its right to make an election under Section 1111(b) of the Bankruptcy Code, and Subordinated Creditor hereby waives any claim it may hereafter have against the Senior Creditors arising out of such election; (viii) the Senior Creditors’ exercise or enforcement of its right to credit bid any or all of its debt claims against Credit Party or any other Obligor, including, without limitation, the Senior Debt; or (ix) any plan of reorganization or liquidation if the Senior Creditors, in their sole discretion, consent to, vote in favor of, or otherwise do not oppose such plan of reorganization or liquidation, and, in furtherance thereof, Subordinated Creditor hereby grants to the Senior Creditors the right to vote Subordinated Creditor’s claim or claims (as such term is defined in the Bankruptcy Code) arising on account of or in connection with the Subordinated Debt, as Subordinated Creditor’s agent, with respect to any plan of reorganization or liquidation to which Subordinated Creditor may be entitled to vote in any bankruptcy or liquidation proceeding or in connection with any other Insolvency Event of Credit Party or any other Obligor.
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(a)file any claims in respect of the Subordinated Debt on behalf of Subordinated Creditor if Subordinated Creditor does not do so at least 30 days before the time to file claims expires; and
(b)vote Subordinated Creditor’s claim or claims (as such term is defined in the Bankruptcy Code) arising on account of or in connection with the Subordinated Debt, as Subordinated Creditor’s agent, with respect to any plan of reorganization or liquidation to which Subordinated Creditor may be entitled to vote in any bankruptcy or liquidation proceeding or in connection with any other Insolvency Event of Credit Party or any other Obligor.
Such power of attorney is irrevocable and coupled with an interest.
(b)Until the Senior Discharge Date, Subordinated Creditor shall not, without prior written consent of the Senior Agent, agree to any amendment, modification or waiver of any provision of the Subordinated Debt Documents, if the effect of such amendment, modification or waiver is to: (i) terminate or impair the subordination of the Subordinated Debt in favor of the Senior Creditors; (ii) increase the interest rate on the Subordinated Debt or change (to earlier dates) the dates upon which principal, interest and other sums are due under the Subordinated Note; (iii) alter the redemption, prepayment or subordination provisions of the Subordinated Debt; (iv) impose on Credit Party or any other Obligor any new or additional prepayment charges, premiums, reimbursement obligations, reimbursable costs or expenses, fees or other payment obligations; (v) alter the representations, warranties, covenants, events of default, remedies and other provisions in a manner which would make such provisions materially more onerous, restrictive or burdensome to Credit Party or any other Obligor; (vi) grant a lien or security interest in favor of any holder of the Subordinated Debt on any asset or Collateral to secure all or any portion of the Subordinated Debt; or (vii) otherwise increase the obligations, liabilities and indebtedness in respect of the Subordinated Debt or confer additional rights upon Subordinated Creditor, which individually or in the aggregate would be materially adverse to Credit Party, any other Obligor or the Senior Creditors. Any such amendment, modification or waiver made in violation of this Section 10(b) shall be void.
(c)At any time without notice to Subordinated Creditor, the Senior Creditors may take such action with respect to the Senior Debt as the Senior Creditors, in their sole discretion, may deem appropriate, including, without limitation, terminating advances, increasing the principal, extending the time of payment, increasing interest rates, renewing, compromising or otherwise amending any documents affecting the Senior Debt and any Collateral securing the Senior Debt, and enforcing or failing to enforce any rights against Credit Party or any other
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person. No action or inaction will impair or otherwise affect any Senior Creditor’s rights under this Agreement.
(b) Subordinated Creditor confirms that this Agreement shall govern as between the Senior Creditors and the Subordinated Creditor irrespective of: (i) any lack of validity or enforceability of any Senior Loan Document or any Subordinated Debt Document; (ii) the occurrence of any Insolvency Event in respect of any Obligor; (iii) whether the Senior Debt, or the liens or security interests securing the Senior Debt, shall be held to be unperfected, deficient, invalid, void, voidable, voided, unenforceable, subordinated, reduced, discharged or are set aside by a court of competent jurisdiction, including pursuant or in connection with any Insolvency Event; (iv) any change in the time, manner or place of payment of, or in any other terms of, all or any of the Senior Debt or the Subordinated Debt, or any amendment or waiver or other modification, including any increase in the amount thereof, whether by course of conduct or otherwise, of the terms of any Senior Loan Document or any Subordinated Debt Document or any guarantee thereof; or (v) any other circumstances which otherwise might constitute a defense available to, or a discharge of, any Obligor in respect of the Senior Debt or the Subordinated Debt.
(a)all action on the part of Subordinated Creditor, its officers, directors, partners, members and shareholders, as applicable, necessary for the authorization of this Agreement and the performance of all obligations of Subordinated Creditor hereunder has been taken;
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(b)this Agreement constitutes the legal, valid and binding obligation of Subordinated Creditor, enforceable against Subordinated Creditor in accordance with its terms;
(c)the execution, delivery and performance of and compliance with this Agreement by Subordinated Creditor will not (i) result in any material violation or default of any term of any of Subordinated Creditor’s charter, formation or other organizational documents (such as Articles or Certificate of Incorporation, bylaws, partnership agreement, operating agreement, etc.) or (ii) violate any material applicable law, rule or regulation; and
(d)Subordinated Creditor has not previously assigned any interest in the Subordinated Debt, and no Person other than the Subordinated Creditor owns an interest in the Subordinated Debt.
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(b)EACH PARTY HERETO WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREIN.
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[Signature pages follow]
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first above written.
SUBORDINATED CREDITOR:
[__________]
By____________________________
Name:
Title:
Address for Notices:
[__________]
[__________]
[__________]
Attn: [__________]
Tel.: [__________]
Fax: [__________]
Email: [__________]
SENIOR AGENT (on behalf of the SENIOR CREDITORS):
AVENUE VENTURE OPPORTUNITIES FUND, L.P.
By
Name:
Title:
Address for Notices:
11 W. 42nd St., 9th Floor
New York, NY 10036
Attn:
Tel:
Fax:
Email:
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[INSERT NAME OF APPLICABLE
CREDIT PARTY]
By____________________________
Name:
Title:
Address for Notices:
[__________]
[__________]
[__________]
Attn: [__________]
Tel.: [__________]
Fax: [__________]
Email: [__________]
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Exhibit H
To Term Loan Agreement
[RESERVED]
H
Exhibit I
To Term Loan Agreement
FORM OF WARRANT
THIS WARRANT AND THE UNDERLYING SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR UNDER THE SECURITIES LAWS OF ANY STATE. THESE SECURITIES MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED EXCEPT AS PERMITTED UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS IN ACCORDANCE WITH APPLICABLE REGISTRATION REQUIREMENTS OR AN EXEMPTION THEREFROM. THE ISSUER OF THESE SECURITIES MAY REQUIRE AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE ISSUER THAT SUCH OFFER, SALE, TRANSFER, PLEDGE OR HYPOTHECATION OTHERWISE COMPLIES WITH THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS. THIS WARRANT MUST BE SURRENDERED TO THE COMPANY OR ITS TRANSFER AGENT AS A CONDITION PRECEDENT TO THE SALE, TRANSFER, PLEDGE OR HYPOTHECATION OF ANY INTEREST IN ANY OF THE SECURITIES REPRESENTED HEREBY.
WARRANT TO PURCHASE ORDINARY SHARES
OF
STRONGBRIDGE BIOPHARMA PLC
Dated as of [ ], [ ] (the “Issue Date”)
Void after the date specified in Section 8
Warrant to Purchase
[__] Ordinary Shares
(subject to adjustment)
THIS CERTIFIES THAT, for value received, [ ], or its registered assigns (the “Holder”), is entitled, subject to the provisions and upon the terms and conditions set forth herein, to purchase from STRONGBRIDGE BIOPHARMA PLC, a public limited company incorporated under the laws of Ireland (the “Company”) that number of shares (the “Shares”) of the Company’s ordinary shares, of nominal value $0.01 per share (the “Ordinary Shares”), at such times and at the price per Share, set forth in Section 1. The term “Warrant” as used herein shall include this Warrant and any warrants delivered in substitution or exchange therefor as provided herein. This Warrant is issued in connection with the transactions described in the Term Loan Agreement, dated as of May 19, 2020, by and between the Company, the Borrower and Subsidiary Guarantors (each as defined therein) from time to time party thereto, the Lenders from time to time party thereto and Avenue Venture Opportunities Fund, L.P.
The following is a statement of the rights of the Holder and the conditions to which this Warrant is subject, and to which Holder, by acceptance of this Warrant, agrees:
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X = Y(A-B)
A
Where:
X = | The number of Shares to be issued to the Holder |
Y = | The number of Shares to be purchased (as specified in paragraph 1 of the applicable Notice of Exercise) |
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A = | The fair market value of one Ordinary Share (at the date of such calculation) |
B = | The Exercise Price (as adjusted to the date of such calculation) less the nominal value of one Ordinary Share |
For purposes of the calculation above, the fair market value of one Share shall be determined as follows:
For purposes hereof, the date of calculation shall be the date the Holder sends to the Company a Notice of Exercise. “Trading Day” means a day in which trading in the Ordinary Shares generally occurs on The Nasdaq Global Select Market or if the Ordinary Shares are not then listed on The Nasdaq Global Select Market, on the principal other U.S. national or regional securities exchange on which the Ordinary Shares are then listed, or if the Ordinary Shares are not then listed on a U.S. national or regional securities exchange, on the principal other market on which the Ordinary Shares are then traded. If the Ordinary Shares are not so listed or traded. “Trading Day” means any Business Day. “Business Day” means any day other than a Saturday, a Sunday or a day on which the Federal Reserve Bank of New York is authorized or required by law or executive order to close or be closed.
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I-4
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THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR UNDER THE SECURITIES LAWS OF CERTAIN STATES. THESE SECURITIES MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR
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HYPOTHECATED EXCEPT AS PERMITTED UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS IN ACCORDANCE WITH APPLICABLE REGISTRATION REQUIREMENTS OR AN EXEMPTION THEREFROM. THE ISSUER OF THESE SECURITIES MAY REQUIRE AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE ISSUER THAT SUCH OFFER, SALE OR TRANSFER, PLEDGE OR HYPOTHECATION OTHERWISE COMPLIES WITH THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS. THIS CERTIFICATE MUST BE SURRENDERED TO THE COMPANY OR ITS TRANSFER AGENT AS A CONDITION PRECEDENT TO THE SALE, TRANSFER, PLEDGE OR HYPOTHECATION OF ANY INTEREST IN ANY OF THE SECURITIES REPRESENTED HEREBY.
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the Company shall send to the Holder of this Warrant at least ten (10) calendar days prior written notice of the date on which a record shall be taken for any such dividend or distribution specified in clause (a) or the expected effective date of any such other event specified in clause (b) or (c), as applicable. The notice provisions set forth in this section may be shortened or waived prospectively or retrospectively by the consent of the Holder of this Warrant.
4 Five years from Issue Date.
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dividends or subscription rights or any other rights of a shareholder of the Company until this Warrant shall have been exercised.
I-10
Each such notice or other communication shall for all purposes of this Warrant be treated as effective or having been given (it if delivered by hand, messenger or courier service, when
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delivered (or if sent via a nationally-recognized overnight courier service, freight prepaid, specifying next-business-day delivery, one business day after deposit with the courier), or (ii) if sent via mail, at the earlier of its receipt or five days after the same has been deposited in a regularly-maintained receptacle for the deposit of the United States mail, addressed and mailed as aforesaid, or (iii) if sent via facsimile, upon confirmation of facsimile transfer or, if sent via electronic mail, upon confirmation of delivery when directed to the relevant electronic mail address, if sent during normal business hours of the recipient, or if not sent during normal business hours of the recipient, then on the recipient’s next business day. In the event of any conflict between the Company’s books and records and this Warrant or any notice delivered hereunder, the Company’s books and records will control absent fraud or error.
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(signature page follows)
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The Company and the Holder sign this Warrant as of the date stated on the first page.
COMPANY:
STRONGBRIDGE BIOPHARMA PLC
By
Name:
Title:
Address for Notices:
900 Northbrook Drive
Suite 200
Trevose, PA 19053
Attn:
Tel:
Fax:
Email:
With a copy (which shall not constitute notice) to:
Reed Smith LLP
599 Lexington Avenue
New York, New York 10022
Attention: Aron Izower
Tel:(212 549-0393
Fax:(212) 521-5450
Email:aizower@reedsmith.com
AGREED AND ACKNOWLEDGED,
HOLDER:
[ ]
By:
Name:
Title:
Address for Notices:
[ ]
Attn:[ ]
Tel:[ ]
Fax:[ ]
Email:[ ]
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SCHEDULE A
Capitalization
Class & Number of Shares | Par Value | Authorized | Issued | Outstanding |
Preferred Shares | $0.01 | 100,000,000 | [ ] | [ ] |
Ordinary Shares | $0.01 | 600,000,000 | [ ] | [ ] |
Deferred Ordinary Shares | €1.00 | 40,000 | [ ] | [ ] |
Outstanding Options: [ ] with weighted average exercise price of $[ ].
Outstanding Warrants -
•[ ] Warrants with exercise price of $[ ]
•[ ] Warrants with exercise price of $[ ]
Outstanding Restricted Stock Units: [ ]
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EXHIBIT A
NOTICE OF EXERCISE
TO:[ ] (the “Company”)
Attention:CHIEF FINANCIAL OFFICER
(1) | Exercise. The undersigned elects to purchase the following pursuant to the terms of the attached warrant: |
Number of shares:
Type of security:
(2)Method of Exercise. The undersigned elects to exercise the attached warrant pursuant to:
[ ] | A cash payment, and tenders herewith payment of the purchase price for such shares in full, together with all applicable transfer taxes, if any. |
[ ] | The net issue exercise provisions of Section 2(b) of the attached warrant. |
(3)Conditional Exercise. Is this a conditional exercise pursuant to Section 2(f):
[ ] Yes [ ] No
If “Yes,” indicate the applicable condition:
(4)Unexercised Portion of the Warrant. Please issue a new warrant for the unexercised portion of the attached warrant in the name of:
[ ] | The undersigned |
[ ] | Other—Name: |
[ ] | Address: |
[ ] | Not applicable |
(6) | [Investment Intent. The undersigned represents and warrants that the aforesaid shares are being acquired for investment for its own account and not with a view to, or for resale in connection with, the distribution thereof, and that the undersigned has no present intention of selling, granting any participation in, or otherwise distributing the shares, nor does it have any contract, undertaking, agreement or arrangement for the same, and all |
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representations and warranties of the undersigned set forth in Section 10 of the attached warrant are true and correct as of the date hereof.]5
(Print name of the warrant holder)
(Signature)
(Name and title of signatory, if applicable)
(Date)
(Fax number)
(Email address)
5 Include if exercised pursuant to Section 2(a).
I-17
EXHIBIT B
ASSIGNMENT FORM
ASSIGNOR:
COMPANY:
WARRANT: | THE WARRANT TO PURCHASE SHARES OF ORDINARY SHARES ISSUED ON [ ], [ ] (THE “WARRANT”) |
(1) | Assignment. The undersigned registered holder of the Warrant (“Assignor”) assigns and transfers to the assignee named below (“Assignee”) all of the rights of Assignor under the Warrant, with respect to the number of shares set forth below: |
Name of Assignee:
Address of Assignee:
Number of Shares Assigned:
and does irrevocably constitute and appointas attorney to make such transfer on the books of Strongbridge Biopharma plc, maintained for the purpose, with full power of substitution in the premises.
(2) | Obligations of Assignee. Assignee agrees to take and hold the Warrant and any shares to be issued upon exercise of the rights thereunder (the “Securities”) subject to, and to be bound by, the terms and conditions set forth in the Warrant to the same extent as if Assignee were the original holder thereof. |
(3) | [Investment Intent. Assignee represents and warrants that the Securities are being acquired for investment for its own account, not as a nominee or agent, and not with a view to, or for resale in connection with, the distribution thereof, and that Assignee has no present intention of selling, granting any participation in, or otherwise distributing the shares, nor does it have any contract, undertaking, agreement or arrangement for the same, and all representations and warranties set forth in Section 10 of the Warrant are true and correct as to Assignee as of the date hereof.]6 |
Assignor and Assignee are signing this Assignment Form on the date first set forth above.
6 Include to the extent required pursuant to Section 5(a).
I-18
ASSIGNOR | | ASSIGNEE |
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(Print name of Assignor) | | (Print name of Assignee) |
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(Signature of Assignor) | | (Signature of Assignee) |
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(Print name of signatory, if applicable) | | (Print name of signatory, if applicable) |
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(Print title of signatory, if applicable) | | (Print title of signatory, if applicable) |
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Address: | | Address: |
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I-19