UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
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Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
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Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.
Item 1.01 Entry into a Material Definitive Agreement.
Amended Credit Agreement
On September 5, 2023, Impel Pharmaceuticals Inc. (the “Company”) entered into the Second Amendment to Credit Agreement and Guaranty and Revenue Interest Financing Agreement (the “Amended Credit Agreement ”) with Oaktree Fund Administration, LLC as administrative agent, and the existing and new lenders party thereto (collectively, the “Secured Parties”), which amends the Company’s (i) Credit Agreement and Guaranty dated March 17, 2022, as amended on August 21, 2023, and (ii) the Revenue Interest Financing Agreement dated March 17, 2022, as amended on August 21, 2023 (the “ RIF Agreement”) (collectively, the “Original Agreements”). The Amended Credit Agreement provides for an aggregate principal loan amount to the Company by the existing and new lenders of approximately $121.5 million, including up to $20 million in additional cash proceeds to the Company from the making of additional term loans, the exchange of approximately $96.5 million of outstanding principal under the Original Agreements, and an in-kind forbearance fee of $5.0 million. Affiliates of KKR Iris Investors LLC, a greater than 10% holder of the Company’s common stock, par value $0.001 per share (“Common Stock”), are lenders of a portion of the new amount under the Credit Agreement. The Amended Credit Agreement and related agreements described in this form 8-K were approved by a special committee of independent directors of the Board of Directors (the “Board”).
Pursuant to the Amended Credit Agreement, the Company drew $4,500,000 of tranche B term loans at closing (in addition to $3,000,000 previously funded and announced on August 21, 2023) and will have the right to draw up to $12,500,000 more in additional tranche B term loans over the course of 2023, subject to the Company’s achievement of certain strategic transaction process milestones, satisfaction of minimum net revenue and product units sold covenants sand satisfaction of certain other covenants and conditions specified in the Amended Credit Agreement.
Under the Amended Credit Agreement, the first lien tranche A provides for an aggregate original principal loan of $101.5 million, consisting of $51.4 million exchanged for existing tranche A-1 term loans, a $5.0 million forbearance fee, $9.1 million exchanged for existing tranche A-2 term loans, and $36.0 million exchanged for the right to future revenue interest payments under the RIF Agreement. In connection with the execution of the Amended Credit Agreement and the exchange of the future payments due under the RIF Agreement, the RIF Agreement was terminated.
Under the Amended Credit Agreement, the first lien tranche B provides for an aggregate original principal loan of $20.0 million. Further, tranche B investors will receive warrants to purchase Common Stock having an aggregate warrant coverage equal to an aggregate of approximately 19.99% of the outstanding shares and an exercise price of $0.01 per share as discussed further below. The warrants will be issued to the tranche B lenders upon each borrowing of tranche B term loans in proportion to the amount of tranche B term loans funded as described below.
Interest will be paid in kind (PIK) on both the tranche A and tranche B term loans through the end of the forbearance period, which was extended to December 31, 2023 under the Amended Credit Agreement, and accrues at SOFR + 10.75%. The first lien tranche B is entitled to a 2x multiple on invested capital. The tranche A lenders and tranche B lenders will be entitled to be repaid a maximum aggregate amount of approximately $141.5 million (assuming the entire $20.0 million of tranche B loans are funded), plus PIK interest on the tranche A term loan.
The amounts outstanding under the Amended Credit Agreement are secured and collateralized by all of the Company’s assets. The Amended Credit Agreement also provides for certain modifications to the existing covenants, including additional reporting obligations, minimum net revenue and product units sold covenants and additional milestones. In addition, the Amended Credit Agreement includes customary events of default, the occurrence of which could result in termination of Oaktree’s commitments or the acceleration of the Company’s obligations under the Amended Credit Agreement.
Warrants
Pursuant to the Amended Credit Agreement, the Company also agreed to issue to the tranche B lenders and certain of their affiliates warrants (each, a “Warrant” and, collectively, the “Warrants”) to purchase, in aggregate of 4,749,800 shares of Common Stock. A total of 1,781,175 Warrants were issued at signing of the Amended Credit Agreement. Up to 2,968,625 Warrants shall be issued on a pro rata basis in connection with each subsequent draw by the Company of the tranche B term loans.
The Warrants are exercisable, in full or in part, at any time prior to the seventh (7th) anniversary of their issuance or the consummation of a Change of Control (as defined in the Warrants), whichever occurs earlier, at an exercise price of $0.01 per share, subject to customary
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anti-dilution adjustments in the event of certain future subdivisions (by any stock split, recapitalization or otherwise), combinations or similar events, any capital reorganization, reclassification, consolidation or merger or other similar transaction of the Company that does not constitute a Change of Control as set forth in the Warrants. The Warrants may be exercised for cash in an amount equal to the aggregate exercise price, or in lieu of paying the aggregate exercise price, the holders of the Warrants may elect a cashless exercise in accordance with the terms of the Warrants. Prior to the issuance of shares of Common Stock upon exercise of the Warrants, the Warrant holders are not entitled to vote or be deemed the holder of shares of Common Stock, provided that Warrant holders are entitled to receive, simultaneously with holders of the Common Stock, dividends and other distributions made to such Common Stock holders. Pursuant to the terms of the Warrants, the Warrant holders and their affiliates will be entitled to registration rights under certain circumstances in connection with the exercise of the Warrants and the issuance of the shares of Common Stock thereunder.
The foregoing summary of the Amended Credit Agreement and Form of Warrant does not purport to be complete and is qualified in its entirety by reference to the Amended Credit Agreement and the Form of Warrant, each of which is attached as Exhibit 10.1 and Exhibit 10.2, respectively, and are incorporated by reference in their entirety.
Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
The information set forth in Item 1.01 of this Current Report on Form 8-K with respect to the Amended Credit Agreement is hereby incorporated by reference into this Item 2.03.
Item 3.02 Unregistered Sale of Equity Securities.
The information set forth in Item 1.01 of this Current Report on Form 8-K above is incorporated herein by reference. The Company issued the Warrants and offered the shares of Common Stock underlying the Warrants in reliance on Section 4(a)(2) of the Securities Act of 1933, as amended.
Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
Departure of Directors or Certain Officers
On September 6, 2023, Dr. Mahendra G. Shah notified the Company that he is stepping down from the Board and all committees thereof, effective immediately. Dr. Shah’s resignation did not result from any disagreements with Company’s management or the Board.
Compensatory Arrangements of Certain Officers
On August 31, 2023, the Compensation Committee of the Board approved, effective upon closing of the Amended Credit Agreement described in Item 1.01 above, and the Company implemented a Management Incentive Plan (the “MIP”) for specified executive officers of the Company, including Adrian Adams, Leonard Paolillo and one additional executive officer (collectively, the “MIP Officers”) to incentivize and motivate the MIP Officers in the event of a Corporate Transaction (as defined therein). Under the MIP, in the event of a Corporate Transaction (as defined therein), 0.85% of the net cash consideration in such transaction will be allocated to the MIP Officers. If any participating MIP Officer is no longer employed by the Company as of the closing of such Corporate Transaction, such MIP Officer’s interest under the MIP will be reallocated to the other remaining MIP Officers on a pro-rata basis. Additionally, effective upon the closing of the Amended Credit Agreement, the Compensation Committee of the Board also expects to enter into new retention program agreements (the “Retention Program”) with the following Company executive officers, including Adrian Adams, Michael Kalb, Leonard Paolillo and one additional executive officer, whereby each such executive officer will receive twenty percent (20%) of the amount of the cash severance attributable to base salary that becomes due in the event of an involuntary termination that is not upon or within twelve (12) months following a Corporate Transaction, under such officer’s existing employment agreement (a “Qualifying Advance”), in cash following the initial tranche B funding as described in Item 1.01 above, and if any such officer is no longer employed by the Company as of the earliest to occur of (a) a Corporate Transaction and (b) January 31, 2024, then all of such officer’s Qualifying Advance must be returned to the Company within thirty (30) days.
The preceding summary descriptions of the terms of the MIP and Retention Program applicable to the Company’s executive officers are not complete, and are qualified in their entirety by reference to the forms of such agreements which are filed as Exhibits 10.2 and 10.3 hereto.
Cautionary Statement Regarding Forward-Looking Statements
This filing contains “forward-looking” statements within the meaning of the safe harbor provisions of the U.S. Private Securities Litigation Reform Act of 1995, including, but not limited to, the Company’s ability to maintain compliance with the Amended Credit
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Agreement and access additional funds thereunder. Forward-looking statements can be identified by words such as: “believe,” “may,” “will,” “potentially,” “estimate,” “continue,” “anticipate,” “intend,” “could,” “would,” “project,” “plan,” “expect” or the negative or plural of these words or similar expressions. These statements are subject to numerous risks and uncertainties that could cause actual results and events to differ materially from those anticipated by the forward-looking statements. Important factors that may cause actual results to differ materially from those in the forward-looking statements include, but are not limited to, risk factors described in the Company’s filings with the SEC, the Company’s ability to explore strategic alternatives, and the risk of the initiation of bankruptcy proceedings under Chapter 11 of the U.S. Bankruptcy Code by the Company. The Company disclaims and does not undertake any obligation to update or revise any forward-looking statement in this report, except as required by applicable law or regulation.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits.
Exhibit No. |
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Description |
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10.1^ † |
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Second Amendment to Credit Agreement dated September 5, 2023.
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10.2 |
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Form of Common Stock Purchase Warrant.
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10.3† |
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Form of Management Incentive Plan.
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10.4 |
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Form of New Retention Program.
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Cover Page Interactive File (the cover page tags are embedded within the Inline XBRL document). |
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^ The Registrant has omitted schedules and exhibits pursuant to Item 601(b)(2) of Regulation S-K. The Registrant agrees to furnish supplementally a copy of the omitted schedules and exhibits to the SEC upon request.
† The Registrant has omitted portions of the exhibit as permitted under Item 601(b)(10) of Regulation S-K.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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IMPEL PHARMACEUTICALS INC. |
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Date: September 7, 2023 |
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By: |
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/s/ Adrian Adams |
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Adrian Adams |
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Chief Executive Officer |
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CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY [***], HAS BEEN OMITTED BECAUSE IT IS NOT MATERIAL AND IS THE TYPE THAT THE REGISTRANT TREATS AS PRIVATE AND CONFIDENTIAL.
EXHIBIT 10.1
SECOND AMENDMENT TO Credit agreement AND guaranty AND REVENUE INTEREST FINANCING AGREEMENT
This Second Amendment to Credit Agreement and Guaranty and Revenue Interest Financing Agreement (this “Amendment”) is made as of September 5, 2023, by and among IMPEL PHARMACEUTICALS INC., a Delaware corporation, as borrower (“Borrower”), the Lenders party to the Credit Agreement (as defined below) (in their capacities as such, the “Lenders”), the Purchasers party to the Revenue Interest Financing Agreement (as defined below) (in their capacities as such, the “Purchasers”), OAKTREE FUND ADMINISTRATION, LLC, in its separate capacities as administrative agent for the Lenders (in such capacity, the “Administrative Agent”) and as administrative agent under the Revenue Interest Financing Agreement (in such capacity, the “RIFA Agent”).
WHEREAS, the Borrower, the Administrative Agent and the Lenders party thereto previously entered into that certain Credit Agreement and Guaranty, dated as of March 17, 2022 (including the exhibits and other attachments thereto, as amended by that certain First Amendment, dated as of August 21, 2023, the “Existing Credit Agreement”, and as further amended by this Amendment, the “Credit Agreement”);
WHEREAS, Borrower, Purchasers and the RIFA Agent are parties to the Revenue Interest Financing Agreement, dated as of March 17, 2022 (as amended, restated, supplemented or otherwise modified from time to time, the “Revenue Interest Financing Agreement”);
WHEREAS, the Borrower has advised the Agent that the Borrower is in breach of Section 10.01 of the Credit Agreement from and after July 19, 2023 (the “Default Date”), as a result of which an Event of Default has occurred and is continuing pursuant to Section 11.01(d) of the Credit Agreement (the “Specified Default”) as of the Default Date;
WHEREAS, upon an Event of Default the Majority Lenders may instruct the Administrative Agent to take certain remedies upon such Event of Default;
WHEREAS, the Borrower is requesting the Majority Lenders and Administrative Agent to forbear from taking such remedies upon the terms and subject to the conditions of this Amendment;
WHEREAS, Majority Lenders and Administrative Agent have agreed to forbear from taking such remedies during the Forbearance Period (as defined below) on the terms and conditions set forth herein;
WHEREAS, the Borrower has requested, and certain of the Lenders have agreed (without waiving the Specified Default), to provide new Tranche A Term Loans in an aggregate principal amount equal to $101,505,257.60, of which (i) $51,445,188.75 shall be deemed made on the Second Amendment Effective Date by the Lenders who hold the “Tranche A-1 Term Loans” (as defined in the Existing Credit Agreement) on a cashless basis pursuant to an exchange whereby each such Lender shall contribute all of such “Tranche A-1 Term Loans” (together with accrued
and unpaid interest thereon) to the Borrower in exchange for Tranche A Term Loans on a dollar-for-dollar basis; (ii) $5,000,000 shall be deemed made on the Second Amendment Effective Date by the Lenders holding “Tranche A-1 Term Loans” in payment of the Forbearance Fee described below; (iii) $9,060,068.85 shall be deemed made on the Second Amendment Effective Date by the Lenders who hold “Tranche A-2 Term Loans” (as defined in the Existing Credit Agreement) on a cashless basis pursuant to an exchange whereby each such Lender shall contribute such “Tranche A-2 Term Loans” (together with accrued and unpaid interest thereon) to the Borrower in exchange for Tranche A Term Loans on a dollar-for-dollar basis, as set forth in Section 3 below; and (iv) $36,000,000 shall be deemed made on the Second Amendment Effective Date by the Lenders constituting Purchasers on a cashless basis pursuant to an exchange whereby each Lender, in its capacity as Purchaser, shall contribute its outstanding RIFA Obligations in exchange for the Borrower issuing to it such Purchaser’s Proportionate Share (as defined in the Revenue Interest Financing Agreement) of $36,000,000 in Tranche A Term Loans, as set forth in Section 3 below;
WHEREAS, the Borrower has requested, and certain of the Lenders have agreed (without waiving the Specified Default), to provide new Tranche B Term Loans in an aggregate principal amount equal to $20,020,022.95, of which (i) $17,000,000 shall consist of new money term loan commitments (of which $4,500,000 in principal amount shall be made on the Second Amendment Effective Date); and (ii) $3,020,022.95 shall be deemed made on the Second Amendment Effective Date by the Lenders who hold “Tranche A-2 Term Loans” (as defined in the Existing Credit Agreement) on a cashless basis pursuant to an exchange whereby each such Lender shall contribute such “Tranche A-2 Term Loans” (together with accrued and unpaid interest thereon) to the Borrower in exchange for Tranche B Term Loans on a dollar-for-dollar basis, as set forth in Section 3 below;
WHEREAS, the consummation of the exchange contemplated by Section 3 hereof is a condition precedent to the Lenders’ willingness to provide the Tranche B Term Loans, the forbearance contemplated hereby and the other amendments contemplated hereby; and
WHEREAS, the Borrower, the Administrative Agent and the Lenders have agreed to amend the Existing Credit Agreement, and the Borrower, the RIF Agent and the Purchasers have agreed to amend the Revenue Interest Financing Agreement, in each case, on the terms and subject to the conditions set forth herein.
NOW, THEREFORE, for and in consideration of the above premises and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by the parties hereto, each of the Borrower, the Administrative Agent, the Lenders party hereto, the RIFA Agent and the Purchasers party hereto hereby covenants and agrees as follows:
1. Definitions. Capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to such terms in the Existing Credit Agreement.
2. Amendments. Subject to the satisfaction of the conditions precedent specified in Section 5 hereof, on the Second Amendment Effective Date, the Existing Credit Agreement shall be amended as set forth on Exhibit A to this Amendment.
(a) Language inserted into the applicable section of the Existing Credit Agreement is evidenced by bold and underline formatting (indicated textually in the same manner
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as the following example: double underlined text). Language deleted from the applicable section of the Credit Agreement is evidenced by strike-through formatting (indicated textually in the same manner as the following example: stricken text);
(b) Schedule 1 to the Existing Credit Agreement is hereby amended and restated in its entirety as set forth on Exhibit B hereto; and
(c) Except the extent specifically set forth in Exhibit A or in Exhibit B, the Exhibits and Schedules to the Credit Agreement are not amended or modified hereby in any respect.
It is agreed that no conforming revisions have been made to the other Loan Documents, and, to the extent that there other revisions to the Loan Documents necessitated by this Agreement, the parties hereto agree to cooperate and make reasonable revisions to such other Loan Documents to reflect the agreements contained in this Amendment. Any references to the Credit Agreement in the other Loan Documents shall mean the Credit Agreement as amended by this Agreement.
3. Exchange.
(a) Subject to the satisfaction of the conditions precedent specified in Section 6 hereof, on the Second Amendment Effective Date:
(i) the Lenders holding “Tranche A-1 Term Loans” (as defined in the Existing Credit Agreement) shall receive $51,445,188.75 in aggregate principal amount of Tranche A Term Loans, and upon receipt thereof, all of such Lender’s “Tranche A-1 Term Loans” shall be deemed automatically contributed to the Borrower in exchange for such Tranche A Term Loans, whereupon such “Tranche A-1 Term Loans” shall be deemed discharged;
(ii) the Lenders holding “Tranche A-2 Term Loans” (as defined in the Existing Credit Agreement) shall receive $9,060,068.85 in aggregate principal amount of Tranche A Term Loans and $3,020,022.95 in aggregate principal amount of Tranche B Term Loans, and upon receipt thereof, all of such Lender’s “Tranche A-2 Term Loans” shall be deemed automatically contributed to the Borrower in exchange for such Tranche A Term Loans and Tranche B Term Loans, as applicable, whereupon such “Tranche A-2 Term Loans” shall be deemed discharged; and
(iii) each of the Purchasers shall receive Tranche A Term Loans in a principal amount equal to such Purchaser’s Proportionate Share (as defined in the Revenue Interest Financing Agreement) of $36,000,000, and upon receipt by each Purchaser of such Tranche A Term Loans, all of the RIFA Obligations under the Revenue Interest Financing Agreement, including the rights to future Revenue Interest Payments and Ex-U.S. Royalty Payments, in favor of the Purchasers shall be deemed automatically contributed to the Borrower in exchange for such Tranche A Term Loans, and upon such
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contribution (i) the RIFA Obligations shall be deemed discharged in full, (ii) all security interests in the Collateral (as defined in the Revenue Interest Financing Agreement) created pursuant to the Revenue Interest Financing Agreement securing the RIFA Obligations shall be automatically released, (iii) the Revenue Interest Financing Agreement shall be deemed terminated in accordance with Section 6.02 thereof (provided that the provisions of Section 6.02, Section 5.03, Section 7.05 and Section 7.18 thereof shall survive such termination) and (iv) the Security Agreement (as defined in the Revenue Interest Financing Agreement) shall be deemed terminated in accordance with Section 20 thereof.
(b) It is the intent of the parties hereto that, after giving effect to the transactions contemplated by this Amendment, including this Section 3, the outstanding Loans and Commitments of the Lenders shall be as set forth in the amended Schedule 1 attached hereto as Exhibit B.
(c) The Borrower agrees that its obligations under the “Tranche A-1 Term Loans” or “Tranche A-2 Term Loans” (each as defined in the Existing Credit Agreement) or under the Revenue Interest Financing Agreement shall be reinstated with full force and effect if at any time on or after the Second Amendment Effective Date, all or any portion of any of the exchanges contemplated by this Section 3 or all or any portion of the Tranche A Term Loans or Tranche B Term Loans issued to the Lenders or Purchasers, as the case may be, pursuant to this Section 3 are voided or rescinded, including in connection the Borrower’s insolvency, bankruptcy or reorganization or otherwise, all as if the transactions contemplated by this Amendment had not occurred.
(d) The Revenue Interest Financing Agreement shall be deemed amended as may be necessary to give effect to the contribution and discharge of the Exchanged RIFA Obligations pursuant to this Section 3.
4. Forbearance.
(a) Notwithstanding anything to the contrary in the Credit Agreement and solely upon the terms and subject to the conditions of this Agreement, from the date hereof until December 31, 2023 (the “Forbearance Period”), the Administrative Agent and Lenders agree to forbear from exercising any of their rights and remedies against the Borrower solely with respect to the occurrence of the Specified Default. Notwithstanding anything to the contrary herein, the Forbearance Period shall terminate automatically and without notice of termination immediately upon the occurrence of any Default or Event of Default (other than the Specified Default).
(b) Upon the expiration or termination of the Forbearance Period, the agreement of the Administrative Agent and Lenders hereunder to forbear from exercising their respective rights and remedies with respect to the Specified Default shall immediately terminate without the requirement of any demand, presentment, protest, or notice of any kind, all of which the Borrower waives. The Borrower agrees that any or all of the Administrative Agent and the Lenders may at any time
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thereafter proceed to exercise any and all of their respective rights and remedies under any or all of the Credit Agreement, any other Loan Document and/or applicable law, including their respective rights and remedies with respect to the Specified Default.
(c) This Section 4 of this Agreement is limited in nature and nothing contained in this Amendment is intended, or shall be deemed or construed, to (i) constitute a waiver of the Specified Default or any existing or future Defaults or Events of Default (including any Event of Default arising from the Specified Default) or compliance with any term or provision of the Loan Documents or at law or in equity, (ii) establish a custom or course of dealing between the Borrower, on the one hand, and the Administrative Agent and/or any Lenders, on the other hand, or (iii) waive, alter or impair the obligations or any of the rights or remedies of the Administrative Agent or the Lenders under the Loan Documents, at law or in equity.
(d) As consideration for the Lenders entering into this Amendment and providing the forbearance pursuant to this Section 4, the Borrower agrees to pay to the Lenders that hold Tranche A Term Loans, on a ratable basis in accordance with their proportional share of the Tranche A Term Loans, a forbearance fee in the aggregate amount of $5,000,000, which shall be paid in kind and automatically added to the outstanding principal amount of the Tranche A Term Loans on the Second Amendment Effective Date (the “Forbearance Fee”). Such fee shall be deemed fully earned and paid on the Second Amendment Effective Date and shall not be refundable for any reason whatsoever and shall be in addition to any other fees, costs and expenses payable hereunder or pursuant to the Loan Documents. From and after the date hereof, the Forbearance Fee shall constitute principal of the Tranche A Term Loans for all purposes under the Loan Documents. The Borrower and each Obligor acknowledges and agrees that the Forbearance Fee is provided in good and valuable consideration of this Amendment and the forbearance contemplated by this Section 4.
5. Reaffirmation of Loan Documents. The Borrower, as Grantor under the Security Documents, hereby (i) agrees that each of the Loan Documents is, and shall continue to be, in full force and effect and is hereby in all respects ratified and confirmed on the Second Amendment Effective Date, except that, on and after the Second Amendment Effective Date, each reference to “Credit Agreement”, “this Agreement”, “thereunder”, “thereof” or words of like import shall, unless the context otherwise requires, mean and be a reference to the Existing Credit Agreement as amended by this Amendment and (ii) confirms that the Security Documents and all of the Collateral described therein do, and shall continue to, secure the payment in full and performance of all of the Secured Obligations.
6. Conditions Precedent to Effectiveness. This Amendment shall not be effective unless and until each of the following conditions precedent has been fulfilled to the satisfaction of the Administrative Agent and each of the Lenders party hereto (the date of such fulfillment, the “Second Amendment Effective Date”):
(a) This Amendment shall have been duly executed and delivered to the Administrative Agent by the Borrower and the Lenders, which constitute Majority Lenders;
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(b) The Administrative Agent shall have received, for the benefit of the Lenders, payment of all accrued and unpaid interest on the Loans since the most recent Payment Date through and including the Second Amendment Effective Date (in an amount equal to $1,505,257.60 with respect to the Tranche A Term Loans and $20,022.95 for the Tranche B Term Loans), which interest shall be paid “in kind” by adding and capitalizing such amount to the outstanding principal amount of the Tranche A Term Loans or Tranche B Term Loans, as applicable (and the amount so capitalized shall constitute “principal” for all purposes of the Loan Documents from and after the Second Amendment Effective Date);
(c) The Borrower shall have paid all costs, fees and expenses of the Administrative Agent and the Lenders, including, without limitation, (x) the fees and out-of-pocket expenses of Sullivan & Cromwell LLP, as outside counsel to Administrative Agent and the Oaktree Lenders and (y) the fees out-of-pocket expenses of Paul, Weiss, Rifkind, Wharton & Garrison LLP, as outside counsel to certain other Lenders; provided that the aggregate amount of such expenses obligated to be paid by the Borrower pursuant to this clause (y) shall not exceed $150,000;
(d) The unused portion of the advance payment paid by the Borrower to Sidley Austin LLP shall have been returned to the Borrower (net of $100,000 which may be retained by Sidley Austin LLP as an advance payment);
(e) The representations and warranties in Section 7 of this Amendment, Section 7 of the Credit Agreement and elsewhere in the Loan Documents shall be true, correct and complete in all material respects (unless such representations are already qualified by reference to materiality, Material Adverse Effect or similar language, in which case such representations and warranties shall be true and correct in all respects) on and as of the date hereof with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date; provided further that the Specified Default shall be excluded with respect to any representation and warranty;
(f) At the time of and after giving effect to this Amendment, no fact or condition exists that could (or could, with the passage of time, the giving of notice, or both) constitute an Event of Default (other than the Specified Default); and
(g) The Administrative Agent shall have received a duly executed legal opinion of counsel to the Obligors dated as of the Second Amendment Effective Date, in form and substance reasonably acceptable to the Administrative Agent.
(h) The Administrative Agent shall have received from each Obligor (x) a copy of a good standing certificate, dated a date reasonably close to the Second Amendment Effective Date, for each such Person and (y) a certificate, dated as of the Second Amendment Effective Date, duly executed and delivered by such Person’s Responsible Officer, as to:
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(i) resolutions of each such Person’s Board then in full force and effect authorizing the execution, delivery and performance of each Loan Document to be executed by such Person and the Transactions;
(ii) the incumbency and signatures of Responsible Officers authorized to execute and deliver each Loan Document to be executed by such Person; and
(iii) the full force and validity of each Organic Document of such Person and copies thereof;
upon which certificates shall be in form and substance reasonably satisfactory to the Administrative Agent and upon which the Administrative Agent and the Lenders may conclusively rely until they shall have received a further certificate of the Responsible Officer of any such Person cancelling or amending the prior certificate of such Person.
(i) The Administrative Agent shall have received a Borrowing Notice as required pursuant to Section 2.02 of the Credit Agreement.
(j) The Administrative Agent shall have received, in form and substance satisfactory to the Administrative Agent, such other documents, instruments and agreements as are reasonably requested by the Administrative Agent and the Lenders.
(k) Each Lender holding Tranche B Term Loans or Tranche B Term Loan Commitments as of the Second Amendment Effective Date shall have received warrants, substantially in the form attached to the Credit Agreement as Exhibit O, duly executed and delivered by the Borrower, exercisable for the number of shares of common stock of the Borrower set forth on Schedule 3 to the Credit Agreement across from such Lender’s name under the column labelled “Second Amendment Effective Date Warrants”.
7. Representations and Warranties. The Borrower hereby represents and warrants:
(a) The execution, delivery and performance by the Borrower of this Amendment and the documents, instruments and agreements executed in connection herewith (collectively, the “Amendment Documents”), the Borrower’s consummation of the transactions contemplated by the Amendment Documents and performance under the Amendment Documents do not and will not (i) conflict with any of its organizational, constitutional or constituent documents; (ii) contravene, conflict with, constitute a default under or violate any Law except as would not reasonably be expected to have a Material Adverse Effect; (iii) contravene, conflict or violate any applicable order, writ, judgment, injunction, decree, determination or award of any Governmental Authority by which it or any of its property or assets may be bound or affected except as would not reasonably be expected to have a Material Adverse Effect; (iv) require any action by, filing, registration, or qualification with, or approval of, any Governmental Authority (except such approval which has already been obtained and is in full force and effect, or the filing of any UCC
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financing statement) except where the failure to do so would not reasonably be expected to have a Material Adverse Effect; or (v) constitute a default under or conflict with any Material Agreement that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect.
(b) This Amendment and the other Amendment Documents have been duly authorized, executed and delivered by the Borrower and constitute legal, valid and binding agreements of the Borrower, enforceable in accordance with their terms (subject, as to enforcement, to (x) the effect of applicable bankruptcy, insolvency, examinership or similar laws affecting the enforcement or creditors’ rights and (y) general principles of equity).
(c) The execution, delivery and performance by the Borrower of the Amendment and the other Amendment Documents executed or to be executed by it is in each case within the Borrower’s powers.
8. Release.
(a) In consideration of this Amendment and agreements of the Administrative Agent, the Lenders, the RIFA Agent and the Purchasers contained herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Borrower (the “Releasing Party”), on behalf of itself and its successors, assigns and other legal representatives hereby absolutely, unconditionally and irrevocably releases, remises and forever discharges the Administrative Agent, the Lenders, the RIFA Agent, the Purchasers and their respective present and former shareholders, affiliates, subsidiaries, divisions, predecessors, directors, officers, attorneys, employees, agents and other representatives, in each case solely in their capacities relative to the Lenders and not in any other capacity such party may have relative to the Releasing Party (the Administrative Agent, each Lender and all such other Persons being hereinafter referred to collectively as the “Releasees” and individually as a “Releasee”), of and from all demands, actions, causes of action, suits, covenants, contracts, controversies, agreements, promises, sums of money, accounts, bills, reckonings, damages and any and all other claims, counterclaims, defenses, rights of set-off, demands and liabilities whatsoever of every name and nature, known or unknown, suspected or unsuspected, both at law and in equity, which the Borrower or any of its successors, assigns or other legal representatives may now or hereafter own, hold, have or claim to have against the Releasees or any of them for, upon, or by reason of any circumstance, action, cause or thing whatsoever which arises at any time on or prior to the Second Amendment Effective Date, for or on account of, or in relation to, or in any way in connection with the Credit Agreement or any of the other Loan Documents or transactions thereunder (any of the foregoing, a “Claim” and collectively, the “Claims”). The Releasing Party expressly acknowledges and agrees, with respect to the Claims, that it waives, to the fullest extent permitted by applicable law, any and all provisions, rights and benefits conferred by any applicable U.S. federal or state law, or any principle of U.S. common law, that would otherwise limit a release or discharge of any unknown Claims pursuant to this Section 8. Furthermore, the Releasing Party hereby absolutely, unconditionally
8
and irrevocably covenants and agrees with and in favor of each Releasee that it will not sue (at law, in equity, in any regulatory proceeding or otherwise) any Releasee on the basis of any Claim released and/or discharged by the Releasing Parties pursuant to this Section 8. The foregoing release, covenant and waivers of this Section 8 shall survive and remain in full force and effect regardless of the consummation of the transactions contemplated hereby, the repayment or prepayment of any of the Loans, or the termination of the Credit Agreement, this Amendment, any other Loan Document, the Revenue Interest Financing Agreement or any provision hereof or thereof.
(b) Each Releasing Party understands, acknowledges and agrees that its release set forth above may be pleaded as a full and complete defense and may be used as a basis for an injunction against any action, suit or other proceeding which may be instituted, prosecuted or attempted in breach of the provisions of such release.
(c) Each Releasing Party agrees that no fact, event, circumstance, evidence or transaction which could now be asserted or which may hereafter be discovered shall affect in any manner the final, absolute and unconditional nature of the release set forth above.
9. Fees and Expenses. The Borrower agrees to pay on demand all reasonable and documented out-of-pocket fees, costs and expenses of the Administrative Agent and the Lenders accrued prior to the Second Amendment Effective Date and all reasonable and documented out-of-pocket fees, costs and expenses of the Administrative Agent and the Lenders incurred in connection with the preparation, execution and delivery of (i) this Amendment, (ii) any Amendment Documents, other Loan Documents or other post-closing amendments, agreements, arrangements or documentation and (iii) any other instruments and documents to be delivered hereunder or thereunder, including, without limitation, (x) the fees and reasonable and documented out-of-pocket expenses of Sullivan & Cromwell LLP, as outside counsel to Administrative Agent and the Oaktree Lenders, with respect thereto and (y) the fees and reasonable and documented out-of-pocket expenses of Paul, Weiss, as outside counsel to certain other Lenders, with respect thereto; provided that the aggregate amount of such expenses obligated to be paid by the Borrower pursuant to this clause (y) shall not exceed $150,000.
10. Revenue Interest Payment. Notwithstanding the exchange and termination of the Revenue Interest Financing Agreement contemplated by Section 3 above, and in consideration therefor, the Borrower agrees that, on or prior to November 15, 2023, it shall pay to the RIFA Agent, for the account of the Purchasers, an amount equal to the sum of (i) the product of (x) 56.04% multiplied by (y) the Q3 Revenue Interest Amount (as defined below) plus (ii) the product of (x) 15.38% multiplied by (y) 82% multiplied by (z) the Q3 Revenue Interest Amount.
“Q3 Revenue Interest Amount” means the product of 7.75% multiplied by the Included Product Revenues (as defined in the Revenue Interest Financing Agreement as in effect immediately prior to the date hereof) for the fiscal quarter ending September 30, 2023
9
For illustrative purposes, if the Included Product Revenues for the fiscal quarter ending September 30, 2023 equals $6,000,000, the amount of the payment required under this Section 10 shall equal $319,229.90.
The amounts payable pursuant to this Section 10 shall constitute Obligations for all purposes under the Credit Agreement and failure to pay such amount on or prior to November 15, 2023 shall constitute an immediate Event of Default under the Loan Documents.
11. Tax Matters. The parties agree that the Tranche B Term Loans are part of an investment unit within the meaning of Section 1273(c)(2) of the Code, which includes the Second Amendment Warrants delivered on the Applicable Funding Date for the Borrowing of such Tranche B Term Loans. For U.S. federal income tax purposes, pursuant to Treasury Regulations § 1.1273-2(h), the Borrower, the Administrative Agent and the Lenders acknowledge that the “issue price” of the Tranche B Term Loans shall be reduced by the fair market value of the Second Amendment Warrants (as such fair market value is determined under such Second Amendment Warrants) delivered on the Applicable Funding Date for the Borrowing of such Tranche B Term Loans. Each of the Borrower, the Administrative Agent and the Lenders agree (i) to use the foregoing issue price and valuation for U.S. federal income tax purposes with respect to the transactions contemplated hereby, and (ii) to prepare and file all Tax returns in a manner consistent with such allocation (in each case, unless otherwise required by applicable Law) and shall not to take any position that is inconsistent with the provision of this Section 11 on any Tax return or in any audit (unless otherwise required by a final determination by the IRS or a court of competent jurisdiction).
12. Miscellaneous.
(a) Except as otherwise expressly provided herein, (i) all provisions of the Credit Agreement and the other Loan Documents remain in full force and effect and (ii) the execution, delivery and effectiveness of this Amendment shall not operate as a waiver of any right, power or remedy of the Administrative Agent or the Lenders, nor constitute a waiver of any provision of the Existing Credit Agreement or any of the Loan Documents. None of the Administrative Agent or any Lender is under any obligation to enter into this Amendment. The entering into of this Amendment by such parties shall not be deemed to limit or hinder any rights of any such party under the Loan Documents, nor shall it be deemed to create or infer a course of dealing between any such party, on the one hand, and the Borrower, on the other hand, with regard to any provision of the Loan Documents.
(b) This Amendment shall constitute a Loan Document.
(c) This Amendment may be executed in several counterparts and by each party on a separate counterpart, each of which when so executed and delivered shall be an original, and all of which together shall constitute one instrument. An executed facsimile or electronic copy of this Amendment shall be effective for all purposes as an original hereof. The words “execution,” “execute”, “signed,” “signature,” and words of like import in or related to any document to be signed in connection
10
with this Amendment and the transactions contemplated hereby (including without limitation assignments, assumptions, amendments, waivers and consents) shall be deemed to include electronic signatures, the electronic matching of assignment terms and contract formations on electronic platforms approved by the Administrative Agent, or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.
(d) This Amendment expresses the entire understanding of the parties with respect to the amendments contemplated hereby. No prior negotiations or discussions shall limit, modify, or otherwise affect the provisions hereof.
(e) This Amendment and the rights and obligations of the parties hereunder shall be governed by, and construed and enforced in accordance with, the law of the State of New York, excluding conflict of laws principles that would cause the application of laws of any other jurisdiction.
(f) Save to the extent expressly provided for in any Loan Document to the contrary, all judicial proceedings (to the extent that the reference requirement of Section 12(g) is not applicable) arising in or under or related to this Amendment may be brought in any state or federal court located in the State of New York. By execution and delivery of this Amendment, each party hereto generally and unconditionally: (a) consents to nonexclusive personal jurisdiction in New York County, State of New York; (b) waives any objection as to jurisdiction or venue in New York County, State of New York; (c) agrees not to assert any defense based on lack of jurisdiction or venue in the aforesaid courts; and (d) irrevocably agrees to be bound by any judgment rendered thereby in connection with this Amendment. Service of process on any party hereto in any action arising out of or relating to this Amendment shall be effective if given in accordance with the requirements for notice set forth in Section 14.02 of the Credit Agreement, and shall be deemed effective and received as set forth in Section 14.02 of the Credit Agreement. Nothing herein shall affect the right to serve process in any other manner permitted by law or shall limit the right of either party to bring proceedings in the courts of any other jurisdiction.
(g) Because disputes arising in connection with complex financial transactions are most quickly and economically resolved by an experienced and expert Person and the parties wish applicable state and federal laws to apply (rather than arbitration rules), the parties desire that their disputes be resolved by a judge applying such applicable laws. EACH OF THE BORROWER, ADMINISTRATIVE AGENT AND LENDER SPECIFICALLY WAIVES ANY RIGHT IT MAY HAVE TO TRIAL BY JURY OF ANY CAUSE OF ACTION, CLAIM, CROSS-CLAIM, COUNTERCLAIM, THIRD PARTY CLAIM OR ANY OTHER CLAIM (COLLECTIVELY, “CLAIMS”) ASSERTED BY THE BORROWER AGAINST ADMINISTRATIVE AGENT, LENDER OR THEIR RESPECTIVE ASSIGNEE
11
OR BY ADMINISTRATIVE AGENT, LENDER OR THEIR RESPECTIVE ASSIGNEE AGAINST THE BORROWER. This waiver extends to all such Claims, including Claims that involve Persons other than Administrative Agent, the Borrower and Lender; Claims that arise out of or are in any way connected to the relationship among the Borrower, Administrative Agent and Lender; and any Claims for damages, breach of contract, tort, specific performance, or any equitable or legal relief of any kind, arising out of this Agreement or any other Loan Document.
(h) This Amendment and its contents shall be subject to the indemnification and severability provisions of the Existing Credit Agreement, mutatis mutandis.
[SIGNATURE PAGES FOLLOW]
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BORROWER:
IMPEL PHARMACEUTICALS INC. |
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By: |
/s/ Adrian Adams |
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Name: |
Adrian Adams |
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Title: |
Chief Executive Officer |
[Signature Page to Second Amendment]
ADMINISTRATIVE AGENT:
OAKTREE FUND ADMINISTRATION, LLC
By: Oaktree Capital Management, L.P. Its: Managing Member
By: /s/Matthew Stewart Name: Matthew Stewart
Title: Managing Director
By: /s/ Mary Gallegly Name: Mary Gallegly
Title: Managing Director
[Signature Page to Second Amendment]
LENDERS: |
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OAKTREE-TCDRS STRATEGIC CREDIT, LLC |
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By: |
Oaktree Capital Management, L.P. |
Its: |
Manager |
By: |
/s/ Matthew Stewart |
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Name: Matthew Stewart |
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Title: Managing Director |
By: |
/s/ Mary Gallegly |
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Name: Mary Gallegly |
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Title: Managing Director |
Address for Notices: Oaktree Fund Administration, LLC 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Attn: Oaktree Agency Email: Oaktreeagency@alterdomus.com
With a copy to: Oaktree Capital Management, L.P. 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Attn: Aman Kumar Email: AmKumar@oaktreecapital.com
With a copy to: Sullivan & Cromwell LLP 125 Broad Street New York, NY 10004 Attn: Ari B. Blaut Email: blauta@sullcrom.com |
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[Signature Page to Second Amendment]
OAKTREE-FORREST MULTI-STRATEGY, LLC |
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By: |
Oaktree Capital Management, L.P. |
Its: |
Manager |
By: |
/s/ Matthew Stewart |
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Name: Matthew Stewart |
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Title: Managing Director |
By: |
/s/ Mary Gallegly |
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Name: Mary Gallegly |
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Title: Managing Director |
Address for Notices: Oaktree Fund Administration, LLC 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Attn: Oaktree Agency Email: Oaktreeagency@alterdomus.com
With a copy to: Oaktree Capital Management, L.P. 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Attn: Aman Kumar Email: AmKumar@oaktreecapital.com
With a copy to: Sullivan & Cromwell LLP 125 Broad Street New York, NY 10004 Attn: Ari B. Blaut Email: blauta@sullcrom.com |
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[Signature Page to Second Amendment]
OAKTREE-TBMR STRATEGIC CREDIT FUND C, LLC |
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By: |
Oaktree Capital Management, L.P. |
Its: |
Manager |
By: |
/s/ Matthew Stewart |
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Name: Matthew Stewart |
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Title: Managing Director |
By: |
/s/ Mary Gallegly |
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Name: Mary Gallegly |
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Title: Managing Director |
Address for Notices: Oaktree Fund Administration, LLC 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Attn: Oaktree Agency Email: Oaktreeagency@alterdomus.com
With a copy to: Oaktree Capital Management, L.P. 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Attn: Aman Kumar Email: AmKumar@oaktreecapital.com
With a copy to: Sullivan & Cromwell LLP 125 Broad Street New York, NY 10004 Attn: Ari B. Blaut Email: blauta@sullcrom.com |
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[Signature Page to Second Amendment]
OAKTREE-TBMR STRATEGIC CREDIT FUND F, LLC |
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By: |
Oaktree Capital Management, L.P. |
Its: |
Manager |
By: |
/s/ Matthew Stewart |
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Name: Matthew Stewart |
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Title: Managing Director |
By: |
/s/ Mary Gallegly |
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Name: Mary Gallegly |
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Title: Managing Director |
Address for Notices: Oaktree Fund Administration, LLC 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Attn: Oaktree Agency Email: Oaktreeagency@alterdomus.com
With a copy to: Oaktree Capital Management, L.P. 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Attn: Aman Kumar Email: AmKumar@oaktreecapital.com
With a copy to: Sullivan & Cromwell LLP 125 Broad Street New York, NY 10004 Attn: Ari B. Blaut Email: blauta@sullcrom.com |
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[Signature Page to Second Amendment]
OAKTREE-TBMR STRATEGIC CREDIT FUND G, LLC |
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By: |
Oaktree Capital Management, L.P. |
Its: |
Manager |
By: |
/s/ Matthew Stewart |
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Name: Matthew Stewart |
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Title: Managing Director |
By: |
/s/ Mary Gallegly |
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Name: Mary Gallegly |
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Title: Managing Director |
Address for Notices: Oaktree Fund Administration, LLC 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Attn: Oaktree Agency Email: Oaktreeagency@alterdomus.com
With a copy to: Oaktree Capital Management, L.P. 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Attn: Aman Kumar Email: AmKumar@oaktreecapital.com
With a copy to: Sullivan & Cromwell LLP 125 Broad Street New York, NY 10004 Attn: Ari B. Blaut Email: blauta@sullcrom.com |
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[Signature Page to Second Amendment]
OAKTREE-TSE 16 STRATEGIC CREDIT, LLC |
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By: |
Oaktree Capital Management, L.P. |
Its: |
Manager |
By: |
/s/ Matthew Stewart |
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Name: Matthew Stewart |
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Title: Managing Director |
By: |
/s/ Mary Gallegly |
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Name: Mary Gallegly |
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Title: Managing Director |
Address for Notices: Oaktree Fund Administration, LLC 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Attn: Oaktree Agency Email: Oaktreeagency@alterdomus.com
With a copy to: Oaktree Capital Management, L.P. 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Attn: Aman Kumar Email: AmKumar@oaktreecapital.com
With a copy to: Sullivan & Cromwell LLP 125 Broad Street New York, NY 10004 Attn: Ari B. Blaut Email: blauta@sullcrom.com |
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[Signature Page to Second Amendment]
INPRS STRATEGIC CREDIT HOLDINGS, LLC |
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By: |
Oaktree Capital Management, L.P. |
Its: |
Manager |
By: |
/s/ Matthew Stewart |
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Name: Matthew Stewart |
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Title: Managing Director |
By: |
/s/ Mary Gallegly |
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Name: Mary Gallegly |
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Title: Managing Director |
Address for Notices: Oaktree Fund Administration, LLC 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Attn: Oaktree Agency Email: Oaktreeagency@alterdomus.com
With a copy to: Oaktree Capital Management, L.P. 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Attn: Aman Kumar Email: AmKumar@oaktreecapital.com
With a copy to: Sullivan & Cromwell LLP 125 Broad Street New York, NY 10004 Attn: Ari B. Blaut Email: blauta@sullcrom.com |
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[Signature Page to Second Amendment]
OAKTREE GILEAD INVESTMENT FUND AIF (DELAWARE), L.P. |
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By: |
Oaktree Fund AIF Series, L.P. – Series T |
Its: |
General Partner |
By: |
Oaktree Fund GP AIF, LLC |
Its: |
Managing Member |
By: |
Oaktree Fund GP III, L.P. |
Its: |
General Partner |
By: |
/s/ Matthew Stewart |
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Name: Matthew Stewart |
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Title: Authorized Signatory |
By: |
/s/ Mary Gallegly |
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Name: Mary Gallegly |
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Title: Authorized Signatory |
Address for Notices: Oaktree Fund Administration, LLC 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Attn: Oaktree Agency Email: Oaktreeagency@alterdomus.com
With a copy to: Oaktree Capital Management, L.P. 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Attn: Aman Kumar Email: AmKumar@oaktreecapital.com
With a copy to: Sullivan & Cromwell LLP 125 Broad Street New York, NY 10004 Attn: Ari B. Blaut Email: blauta@sullcrom.com |
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[Signature Page to Second Amendment]
OAKTREE SPECIALTY LENDING CORPORATION |
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By: |
Oaktree Fund Advisors, LLC |
Its: |
Investment Adviser |
By: |
/s/ Matthew Stewart |
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Name: Matthew Stewart |
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Title: Managing Director |
By: |
/s/ Mary Gallegly |
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Name: Mary Gallegly |
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Title: Managing Director |
Address for Notices: Oaktree Fund Administration, LLC 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Attn: Oaktree Agency Email: Oaktreeagency@alterdomus.com
With a copy to: Oaktree Capital Management, L.P. 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Attn: Aman Kumar Email: AmKumar@oaktreecapital.com
With a copy to: Sullivan & Cromwell LLP 125 Broad Street New York, NY 10004 Attn: Ari B. Blaut Email: blauta@sullcrom.com |
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[Signature Page to Second Amendment]
OAKTREE STRATEGIC CREDIT FUND |
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By: |
Oaktree Fund Advisors, LLC |
Its: |
Investment Advisor |
By: |
/s/ Matthew Stewart |
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Name: Matthew Stewart |
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Title: Managing Director |
By: |
/s/ Mary Gallegly |
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Name: Mary Gallegly |
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Title: Managing Director |
Address for Notices: Oaktree Fund Administration, LLC 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Attn: Oaktree Agency Email: Oaktreeagency@alterdomus.com
With a copy to: Oaktree Capital Management, L.P. 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Attn: Aman Kumar Email: AmKumar@oaktreecapital.com
With a copy to: Sullivan & Cromwell LLP 125 Broad Street New York, NY 10004 Attn: Ari B. Blaut Email: blauta@sullcrom.com |
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[Signature Page to Second Amendment]
OAKTREE GCP FUND DELAWARE HOLDINGS, L.P. |
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By: |
Oaktree Global Credit Plus Fund GP, L.P. |
Its: |
General Partner |
By: |
Oaktree Global Credit Plus Fund GP Ltd. |
Its: |
General Partner |
By: |
Oaktree Capital Management, L.P. |
Its: |
Director |
By: |
/s/ Matthew Stewart |
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Name: Matthew Stewart |
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Title: Managing Director |
By: |
/s/ Mary Gallegly |
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Name: Mary Gallegly |
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Title: Managing Director |
Address for Notices: Oaktree Fund Administration, LLC 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Attn: Oaktree Agency Email: Oaktreeagency@alterdomus.com
With a copy to: Oaktree Capital Management, L.P. 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Attn: Aman Kumar Email: AmKumar@oaktreecapital.com
With a copy to: Sullivan & Cromwell LLP 125 Broad Street New York, NY 10004 Attn: Ari B. Blaut Email: blauta@sullcrom.com |
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[Signature Page to Second Amendment]
OAKTREE DIVERSIFIED INCOME FUND INC. |
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By: |
Oaktree Fund Advisors, LLC |
Its: |
Investment Advisor |
By: |
/s/ Matthew Stewart |
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Name: Matthew Stewart |
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Title: Managing Director |
By: |
/s/ Mary Gallegly |
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Name: Mary Gallegly |
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Title: Managing Director |
Address for Notices: Oaktree Fund Administration, LLC 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Attn: Oaktree Agency Email: Oaktreeagency@alterdomus.com
With a copy to: Oaktree Capital Management, L.P. 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Attn: Aman Kumar Email: AmKumar@oaktreecapital.com
With a copy to: Sullivan & Cromwell LLP 125 Broad Street New York, NY 10004 Attn: Ari B. Blaut Email: blauta@sullcrom.com |
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[Signature Page to Second Amendment]
OAKTREE AZ STRATEGIC LENDING FUND, L.P. |
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By: |
Oaktree AZ Strategic Lending Fund GP, L.P. |
Its: |
General Partner |
By: |
Oaktree Fund GP IIA, LLC |
Its: |
General Partner |
By: |
Oaktree Fund GP II, L.P. |
Its: |
Managing Member |
By: |
/s/ Matthew Stewart |
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Name: Matthew Stewart |
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Title: Authorized Signatory |
By: |
/s/ Mary Gallegly |
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Name: Mary Gallegly |
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Title: Authorized Signatory |
Address for Notices: Oaktree Fund Administration, LLC 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Attn: Oaktree Agency Email: Oaktreeagency@alterdomus.com
With a copy to: Oaktree Capital Management, L.P. 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Attn: Aman Kumar Email: AmKumar@oaktreecapital.com
With a copy to: Sullivan & Cromwell LLP 125 Broad Street New York, NY 10004 Attn: Ari B. Blaut Email: blauta@sullcrom.com |
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[Signature Page to Second Amendment]
OAKTREE LOAN ACQUISITION FUND, L.P. |
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By: |
Oaktree Fund GP IIA, LLC |
Its: |
General Partner |
By: |
Oaktree Fund GP II, L.P. |
Its: |
Managing Member |
By: |
/s/ Matthew Stewart |
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Name: Matthew Stewart |
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Title: Authorized Signatory |
By: |
/s/ Mary Gallegly |
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Name: Mary Gallegly |
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Title: Authorized Signatory |
Address for Notices: Oaktree Fund Administration, LLC 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Attn: Oaktree Agency Email: Oaktreeagency@alterdomus.com
With a copy to: Oaktree Capital Management, L.P. 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Attn: Aman Kumar Email: AmKumar@oaktreecapital.com
With a copy to: Sullivan & Cromwell LLP 125 Broad Street New York, NY 10004 Attn: Ari B. Blaut Email: blauta@sullcrom.com |
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[Signature Page to Second Amendment]
LENDERS:
OAKTREE LSL FUND HOLDINGS EURRC S.À R.L 26A, boulevard Royal L-2449 Luxembourg, Grand Duchy of Luxembourg R.C.S Luxembourg Number: B269245 |
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By: |
/s/ Martin Eckel |
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Name: Martin Eckel |
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Title: Manager |
By: |
/s/ Flora Verrecchia |
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Name: Flora Verrecchia |
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Title: Manager |
Address for Notices: Oaktree Fund Administration, LLC 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Attn: Oaktree Agency Email: Oaktreeagency@alterdomus.com
With a copy to: Oaktree Capital Management, L.P. 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Attn: Aman Kumar Email: AmKumar@oaktreecapital.com
With a copy to: Sullivan & Cromwell LLP 125 Broad Street New York, NY 10004 Attn: Ari B. Blaut Email: blauta@sullcrom.com |
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[Signature Page to Second Amendment]
OAKTREE LSL FUND DELAWARE HOLDINGS EURRC, L.P. |
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By: |
Oaktree Life Sciences Lending Fund GP, L.P. |
Its: |
General Partner |
By: |
Oaktree Life Sciences Lending Fund GP Ltd. |
Its: |
General Partner |
By: |
/s/ Matthew Stewart |
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Name: Matthew Stewart |
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Title: Managing Director |
By: |
/s/ Mary Gallegly |
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Name: Mary Gallegly |
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Title: Managing Director |
Address for Notices: Oaktree Fund Administration, LLC 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Attn: Oaktree Agency Email: Oaktreeagency@alterdomus.com
With a copy to: Oaktree Capital Management, L.P. 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Attn: Aman Kumar Email: AmKumar@oaktreecapital.com
With a copy to: Sullivan & Cromwell LLP 125 Broad Street New York, NY 10004 Attn: Ari B. Blaut Email: blauta@sullcrom.com |
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[Signature Page to Second Amendment]
OAKTREE PRE LIFE SCIENCES FUND, L.P. |
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By: |
Oaktree Pre Life Sciences Fund GP, L.P. |
Its: |
General Partner |
By: |
Oaktree Fund GP IIA, LLC |
Its: |
General Partner |
By: |
Oaktree Fund GP II, L.P. |
Its: |
Managing Member |
By: |
/s/ Matthew Stewart |
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Name: Matthew Stewart |
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Title: Authorized Signatory |
By: |
/s/ Mary Gallegly |
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Name: Mary Gallegly |
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Title: Authorized Signatory |
Address for Notices: Oaktree Fund Administration, LLC 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Attn: Oaktree Agency Email: Oaktreeagency@alterdomus.com
With a copy to: Oaktree Capital Management, L.P. 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Attn: Aman Kumar Email: AmKumar@oaktreecapital.com
With a copy to: Sullivan & Cromwell LLP 125 Broad Street New York, NY 10004 Attn: Ari B. Blaut Email: blauta@sullcrom.com |
|
[Signature Page to Second Amendment]
RIFA AGENT:
OAKTREE FUND ADMINISTRATION, LLC
By: Oaktree Capital Management, L.P. Its: Managing Member
By: |
/s/ Matthew Stewart |
|
Name: Matthew Stewart |
|
Title: Managing Director |
By: |
/s/ Mary Gallegly |
|
Name: Mary Gallegly |
|
Title: Managing Director |
[Signature Page to Second Amendment]
PURCHASERS: |
|
OAKTREE-TCDRS STRATEGIC CREDIT, LLC |
|
By: |
Oaktree Capital Management, L.P. |
Its: |
Manager |
By: |
/s/ Matthew Stewart |
|
Name: Matthew Stewart |
|
Title: Managing Director |
By: |
/s/ Mary Gallegly |
|
Name: Mary Gallegly |
|
Title: Managing Director |
Address for Notices: Oaktree Fund Administration, LLC 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Attn: Oaktree Agency Email: Oaktreeagency@alterdomus.com
With a copy to: Oaktree Capital Management, L.P. 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Attn: Aman Kumar Email: AmKumar@oaktreecapital.com
With a copy to: Sullivan & Cromwell LLP 125 Broad Street New York, NY 10004 Attn: Ari B. Blaut Email: blauta@sullcrom.com |
|
[Signature Page to Second Amendment]
OAKTREE-FORREST MULTI-STRATEGY, LLC |
|
By: |
Oaktree Capital Management, L.P. |
Its: |
Manager |
By: |
/s/ Matthew Stewart |
|
Name: Matthew Stewart |
|
Title: Managing Director |
By: |
/s/ Mary Gallegly |
|
Name: Mary Gallegly |
|
Title: Managing Director |
Address for Notices: Oaktree Fund Administration, LLC 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Attn: Oaktree Agency Email: Oaktreeagency@alterdomus.com
With a copy to: Oaktree Capital Management, L.P. 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Attn: Aman Kumar Email: AmKumar@oaktreecapital.com
With a copy to: Sullivan & Cromwell LLP 125 Broad Street New York, NY 10004 Attn: Ari B. Blaut Email: blauta@sullcrom.com |
|
[Signature Page to Second Amendment]
OAKTREE-TBMR STRATEGIC CREDIT FUND C, LLC |
|
By: |
Oaktree Capital Management, L.P. |
Its: |
Manager |
By: |
/s/ Matthew Stewart |
|
Name: Matthew Stewart |
|
Title: Managing Director |
By: |
/s/ Mary Gallegly |
|
Name: Mary Gallegly |
|
Title: Managing Director |
Address for Notices: Oaktree Fund Administration, LLC 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Attn: Oaktree Agency Email: Oaktreeagency@alterdomus.com
With a copy to: Oaktree Capital Management, L.P. 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Attn: Aman Kumar Email: AmKumar@oaktreecapital.com
With a copy to: Sullivan & Cromwell LLP 125 Broad Street New York, NY 10004 Attn: Ari B. Blaut Email: blauta@sullcrom.com |
|
[Signature Page to Second Amendment]
OAKTREE-TBMR STRATEGIC CREDIT FUND F, LLC |
|
By: |
Oaktree Capital Management, L.P. |
Its: |
Manager |
By: |
/s/ Matthew Stewart |
|
Name: Matthew Stewart |
|
Title: Managing Director |
By: |
/s/ Mary Gallegly |
|
Name: Mary Gallegly |
|
Title: Managing Director |
Address for Notices: Oaktree Fund Administration, LLC 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Attn: Oaktree Agency Email: Oaktreeagency@alterdomus.com
With a copy to: Oaktree Capital Management, L.P. 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Attn: Aman Kumar Email: AmKumar@oaktreecapital.com
With a copy to: Sullivan & Cromwell LLP 125 Broad Street New York, NY 10004 Attn: Ari B. Blaut Email: blauta@sullcrom.com |
|
[Signature Page to Second Amendment]
OAKTREE-TBMR STRATEGIC CREDIT FUND G, LLC |
|
By: |
Oaktree Capital Management, L.P. |
Its: |
Manager |
By: |
/s/ Matthew Stewart |
|
Name: Matthew Stewart |
|
Title: Managing Director |
By: |
/s/ Mary Gallegly |
|
Name: Mary Gallegly |
|
Title: Managing Director |
Address for Notices: Oaktree Fund Administration, LLC 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Attn: Oaktree Agency Email: Oaktreeagency@alterdomus.com
With a copy to: Oaktree Capital Management, L.P. 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Attn: Aman Kumar Email: AmKumar@oaktreecapital.com
With a copy to: Sullivan & Cromwell LLP 125 Broad Street New York, NY 10004 Attn: Ari B. Blaut Email: blauta@sullcrom.com |
|
[Signature Page to Second Amendment]
OAKTREE-TSE 16 STRATEGIC CREDIT, LLC |
|
By: |
Oaktree Capital Management, L.P. |
Its: |
Manager |
By: |
/s/ Matthew Stewart |
|
Name: Matthew Stewart |
|
Title: Managing Director |
By: |
/s/ Mary Gallegly |
|
Name: Mary Gallegly |
|
Title: Managing Director |
Address for Notices: Oaktree Fund Administration, LLC 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Attn: Oaktree Agency Email: Oaktreeagency@alterdomus.com
With a copy to: Oaktree Capital Management, L.P. 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Attn: Aman Kumar Email: AmKumar@oaktreecapital.com
With a copy to: Sullivan & Cromwell LLP 125 Broad Street New York, NY 10004 Attn: Ari B. Blaut Email: blauta@sullcrom.com |
|
[Signature Page to Second Amendment]
INPRS STRATEGIC CREDIT HOLDINGS, LLC |
|
By: |
Oaktree Capital Management, L.P. |
Its: |
Manager |
By: |
/s/ Matthew Stewart |
|
Name: Matthew Stewart |
|
Title: Managing Director |
By: |
/s/ Mary Gallegly |
|
Name: Mary Gallegly |
|
Title: Managing Director |
Address for Notices: Oaktree Fund Administration, LLC 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Attn: Oaktree Agency Email: Oaktreeagency@alterdomus.com
With a copy to: Oaktree Capital Management, L.P. 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Attn: Aman Kumar Email: AmKumar@oaktreecapital.com
With a copy to: Sullivan & Cromwell LLP 125 Broad Street New York, NY 10004 Attn: Ari B. Blaut Email: blauta@sullcrom.com |
|
[Signature Page to Second Amendment]
OAKTREE GILEAD INVESTMENT FUND AIF (DELAWARE), L.P. |
|
By: |
Oaktree Fund AIF Series, L.P. – Series T |
Its: |
General Partner |
By: |
Oaktree Fund GP AIF, LLC |
Its: |
Managing Member |
By: |
Oaktree Fund GP III, L.P. |
Its: |
General Partner |
By: |
/s/ Matthew Stewart |
|
Name: Matthew Stewart |
|
Title: Authorized Signatory |
By: |
/s/ Mary Gallegly |
|
Name: Mary Gallegly |
|
Title: Authorized Signatory |
Address for Notices: Oaktree Fund Administration, LLC 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Attn: Oaktree Agency Email: Oaktreeagency@alterdomus.com
With a copy to: Oaktree Capital Management, L.P. 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Attn: Aman Kumar Email: AmKumar@oaktreecapital.com
With a copy to: Sullivan & Cromwell LLP 125 Broad Street New York, NY 10004 Attn: Ari B. Blaut Email: blauta@sullcrom.com |
|
[Signature Page to Second Amendment]
OAKTREE SPECIALTY LENDING CORPORATION |
|
By: |
Oaktree Fund Advisors, LLC |
Its: |
Investment Adviser |
By: |
/s/ Matthew Stewart |
|
Name: Matthew Stewart |
|
Title: Managing Director |
By: |
/s/ Mary Gallegly |
|
Name: Mary Gallegly |
|
Title: Managing Director |
Address for Notices: Oaktree Fund Administration, LLC 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Attn: Oaktree Agency Email: Oaktreeagency@alterdomus.com
With a copy to: Oaktree Capital Management, L.P. 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Attn: Aman Kumar Email: AmKumar@oaktreecapital.com
With a copy to: Sullivan & Cromwell LLP 125 Broad Street New York, NY 10004 Attn: Ari B. Blaut Email: blauta@sullcrom.com |
|
[Signature Page to Second Amendment]
OAKTREE STRATEGIC CREDIT FUND |
|
By: |
Oaktree Fund Advisors, LLC |
Its: |
Investment Advisor |
By: |
/s/ Matthew Stewart |
|
Name: Matthew Stewart |
|
Title: Managing Director |
By: |
/s/ Mary Gallegly |
|
Name: Mary Gallegly |
|
Title: Managing Director |
Address for Notices: Oaktree Fund Administration, LLC 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Attn: Oaktree Agency Email: Oaktreeagency@alterdomus.com
With a copy to: Oaktree Capital Management, L.P. 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Attn: Aman Kumar Email: AmKumar@oaktreecapital.com
With a copy to: Sullivan & Cromwell LLP 125 Broad Street New York, NY 10004 Attn: Ari B. Blaut Email: blauta@sullcrom.com |
|
[Signature Page to Second Amendment]
OAKTREE GCP FUND DELAWARE HOLDINGS, L.P. |
|
By: |
Oaktree Global Credit Plus Fund GP, L.P. |
Its: |
General Partner |
By: |
Oaktree Global Credit Plus Fund GP Ltd. |
Its: |
General Partner |
By: |
Oaktree Capital Management, L.P. |
Its: |
Director |
By: |
/s/ Matthew Stewart |
|
Name: Matthew Stewart |
|
Title: Managing Director |
By: |
/s/ Mary Gallegly |
|
Name: Mary Gallegly |
|
Title: Managing Director |
Address for Notices: Oaktree Fund Administration, LLC 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Attn: Oaktree Agency Email: Oaktreeagency@alterdomus.com
With a copy to: Oaktree Capital Management, L.P. 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Attn: Aman Kumar Email: AmKumar@oaktreecapital.com
With a copy to: Sullivan & Cromwell LLP 125 Broad Street New York, NY 10004 Attn: Ari B. Blaut Email: blauta@sullcrom.com |
|
[Signature Page to Second Amendment]
OAKTREE DIVERSIFIED INCOME FUND INC. |
|
By: |
Oaktree Fund Advisors, LLC |
Its: |
Investment Advisor |
By: |
/s/ Matthew Stewart |
|
Name: Matthew Stewart |
|
Title: Managing Director |
By: |
/s/ Mary Gallegly |
|
Name: Mary Gallegly |
|
Title: Managing Director |
Address for Notices: Oaktree Fund Administration, LLC 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Attn: Oaktree Agency Email: Oaktreeagency@alterdomus.com
With a copy to: Oaktree Capital Management, L.P. 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Attn: Aman Kumar Email: AmKumar@oaktreecapital.com
With a copy to: Sullivan & Cromwell LLP 125 Broad Street New York, NY 10004 Attn: Ari B. Blaut Email: blauta@sullcrom.com |
|
[Signature Page to Second Amendment]
OAKTREE AZ STRATEGIC LENDING FUND, L.P. |
|
By: |
Oaktree AZ Strategic Lending Fund GP, L.P. |
Its: |
General Partner |
By: |
Oaktree Fund GP IIA, LLC |
Its: |
General Partner |
By: |
Oaktree Fund GP II, L.P. |
Its: |
Managing Member |
By: |
/s/ Matthew Stewart |
|
Name: Matthew Stewart |
|
Title: Authorized Signatory |
By: |
/s/ Mary Gallegly |
|
Name: Mary Gallegly |
|
Title: Authorized Signatory |
Address for Notices: Oaktree Fund Administration, LLC 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Attn: Oaktree Agency Email: Oaktreeagency@alterdomus.com
With a copy to: Oaktree Capital Management, L.P. 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Attn: Aman Kumar Email: AmKumar@oaktreecapital.com
With a copy to: Sullivan & Cromwell LLP 125 Broad Street New York, NY 10004 Attn: Ari B. Blaut Email: blauta@sullcrom.com |
|
[Signature Page to Second Amendment]
OAKTREE LOAN ACQUISITION FUND, L.P. |
|
By: |
Oaktree Fund GP IIA, LLC |
Its: |
General Partner |
By: |
Oaktree Fund GP II, L.P. |
Its: |
Managing Member |
By: |
/s/ Matthew Stewart |
|
Name: Matthew Stewart |
|
Title: Authorized Signatory |
By: |
/s/ Mary Gallegly |
|
Name: Mary Gallegly |
|
Title: Authorized Signatory |
Address for Notices: Oaktree Fund Administration, LLC 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Attn: Oaktree Agency Email: Oaktreeagency@alterdomus.com
With a copy to: Oaktree Capital Management, L.P. 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Attn: Aman Kumar Email: AmKumar@oaktreecapital.com
With a copy to: Sullivan & Cromwell LLP 125 Broad Street New York, NY 10004 Attn: Ari B. Blaut Email: blauta@sullcrom.com |
|
[Signature Page to Second Amendment]
OAKTREE LSL FUND HOLDINGS EURRC S.À R.L 26A, boulevard Royal L-2449 Luxembourg, Grand Duchy of Luxembourg R.C.S Luxembourg Number: B269245 |
|
By: |
/s/ Martin Eckel |
|
Name: Martin Eckel |
|
Title: Manager |
By: |
/s/ Flora Verrecchia |
|
Name: Flora Verrecchia |
|
Title: Manager |
Address for Notices: Oaktree Fund Administration, LLC 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Attn: Oaktree Agency Email: Oaktreeagency@alterdomus.com
With a copy to: Oaktree Capital Management, L.P. 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Attn: Aman Kumar Email: AmKumar@oaktreecapital.com
With a copy to: Sullivan & Cromwell LLP 125 Broad Street New York, NY 10004 Attn: Ari B. Blaut Email: blauta@sullcrom.com |
|
[Signature Page to Second Amendment]
OAKTREE LSL FUND DELAWARE HOLDINGS EURRC, L.P. |
|
By: |
Oaktree Life Sciences Lending Fund GP, L.P. |
Its: |
General Partner |
By: |
Oaktree Life Sciences Lending Fund GP Ltd. |
Its: |
General Partner |
By: |
/s/ Matthew Stewart |
|
Name: Matthew Stewart |
|
Title: Managing Director |
By: |
/s/ Mary Gallegly |
|
Name: Mary Gallegly |
|
Title: Managing Director |
Address for Notices: Oaktree Fund Administration, LLC 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Attn: Oaktree Agency Email: Oaktreeagency@alterdomus.com
With a copy to: Oaktree Capital Management, L.P. 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Attn: Aman Kumar Email: AmKumar@oaktreecapital.com
With a copy to: Sullivan & Cromwell LLP 125 Broad Street New York, NY 10004 Attn: Ari B. Blaut Email: blauta@sullcrom.com |
|
[Signature Page to Second Amendment]
OAKTREE PRE LIFE SCIENCES FUND, L.P. |
|
By: |
Oaktree Pre Life Sciences Fund GP, L.P. |
Its: |
General Partner |
By: |
Oaktree Fund GP IIA, LLC |
Its: |
General Partner |
By: |
Oaktree Fund GP II, L.P. |
Its: |
Managing Member |
By: |
/s/ Matthew Stewart |
|
Name: Matthew Stewart |
|
Title: Authorized Signatory |
By: |
/s/ Mary Gallegly |
|
Name: Mary Gallegly |
|
Title: Authorized Signatory |
Address for Notices: Oaktree Fund Administration, LLC 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Attn: Oaktree Agency Email: Oaktreeagency@alterdomus.com
With a copy to: Oaktree Capital Management, L.P. 333 S. Grand Avenue, 28th Fl. Los Angeles, CA 90071 Attn: Aman Kumar Email: AmKumar@oaktreecapital.com
With a copy to: Sullivan & Cromwell LLP 125 Broad Street New York, NY 10004 Attn: Ari B. Blaut Email: blauta@sullcrom.com |
|
[Signature Page to Second Amendment]
KKR HEALTH CARE STRATEGIC GROWTH FUND L.P.
By: KKR Associates HCSG L.P.,
Its: General Partner
By: KKR HCSG GP LLC,
Its: General Partner
By: /s/ Ali Satvat
Name: Ali Satvat
Title: Vice President
Address for Notices:
KKR
2800 Sand Hill Road
Suite 200
Menlo Park, California 94025
Attn: Ali Satvat
Email: Ali.Satvat@kkr.com
With a copy to:
Paul, Weiss, Rifkind Wharton & Garrison LLP
1285 6th Avenue
New York, NY 10019
Attn: Sung Pak
Email: spak@paulweiss.com
[Signature Page to Second Amendment]
KKR HCS GROWTH FUND ESC L.P.
By: KKR HCSG GP LLC,
Its: General Partner
By: /s/ Ali Satvat
Name: Ali Satvat
Title: Vice President
Address for Notices:
KKR
2800 Sand Hill Road
Suite 200
Menlo Park, California 94025
Attn: Ali Satvat
Email: Ali.Satvat@kkr.com
With a copy to:
Paul, Weiss, Rifkind Wharton & Garrison LLP
1285 6th Avenue
New York, NY 10019
Attn: Sung Pak
Email: spak@paulweiss.com
[Signature Page to Second Amendment]
4863-8017-3175 v.2
KKR HCS GROWTH FUND SBS L.P.
By: KKR HCSG GP LLC,
Its: General Partner
By: /s/ Ali Satvat
Name: Ali Satvat
Title: Vice President
Address for Notices:
KKR
2800 Sand Hill Road
Suite 200
Menlo Park, California 94025
Attn: Ali Satvat
Email: Ali.Satvat@kkr.com
With a copy to:
Paul, Weiss, Rifkind Wharton & Garrison LLP
1285 6th Avenue
New York, NY 10019
Attn: Sung Pak
Email: spak@paulweiss.com
[Signature Page to Second Amendment]
4863-8017-3175 v.2
EXHIBIT A
CREDIT AGREEMENT AND GUARANTY dated as of March 17, 2022 and amended on August 21, 2023 and September 5, 2023 by and among IMPEL PHARMACEUTICALS INC., as the Borrower, THE SUBSIDIARY GUARANTORS FROM TIME TO TIME PARTY HERETO, as the Guarantors, THE LENDERS FROM TIME TO TIME PARTY HERETO as the Lenders, and OAKTREE FUND ADMINISTRATION, LLC, as the Administrative Agent
U.S. $121,525,280.55 |
-1-
4871-8492-5047 v.3
TABLE OF CONTENTS
Section 1. DEFINITIONS |
1 |
|
1.01 |
Certain Defined Terms |
1 |
1.02 |
Accounting Terms and Principles |
33 |
1.03 |
Interpretation |
33 |
1.04 |
Division |
34 |
Section 2. THE COMMITMENT AND THE LOANS |
35 |
|
2.01 |
Loans |
35 |
2.02 |
Borrowing Procedures |
35 |
2.03 |
Funding of Borrowings |
36 |
2.04 |
Notes |
36 |
2.05 |
Use of Proceeds |
36 |
Section 3. PAYMENTS OF PRINCIPAL AND INTEREST, ETC. |
36 |
|
3.01 |
Scheduled Repayments and Prepayments Generally; Application |
36 |
3.02 |
Interest |
36 |
3.03 |
Prepayments |
37 |
3.04 |
Commitment Termination |
39 |
3.05 |
Exit Fee |
39 |
3.06 |
Specified Return for Tranche B Term Loans |
39 |
Section 4. PAYMENTS, ETC. |
39 |
|
4.01 |
Payments |
39 |
4.02 |
Computations |
41 |
4.03 |
Set-Off |
41 |
Section 5. YIELD PROTECTION, TAXES, ETC. |
42 |
|
5.01 |
Additional Costs |
42 |
5.02 |
Illegality |
43 |
5.03 |
Taxes |
43 |
5.04 |
Mitigation Obligations |
47 |
5.05 |
Inability to Determine Rates |
47 |
5.06 |
Survival |
49 |
-i-
4871-8492-5047 v.6
Section 6. CONDITIONS |
49 |
|
6.01 |
Conditions to Closing |
49 |
6.02 |
Conditions to Disbursements of Tranche B Term Loans |
53 |
Section 7. REPRESENTATIONS AND WARRANTIES |
54 |
|
7.01 |
Power and Authority |
54 |
7.02 |
Authorization; Enforceability |
54 |
7.03 |
Governmental and Other Approvals; No Conflicts |
55 |
7.04 |
Financial Statements; Material Adverse Change |
55 |
7.05 |
Properties |
55 |
7.06 |
No Actions or Proceedings |
58 |
7.07 |
Compliance with Laws and Agreements |
58 |
7.08 |
Taxes |
59 |
7.09 |
Full Disclosure |
59 |
7.10 |
Investment Company Act and Margin Stock Regulation |
60 |
7.11 |
Solvency |
60 |
7.12 |
Subsidiaries |
60 |
7.13 |
Indebtedness and Liens |
60 |
7.14 |
Material Agreements |
60 |
7.15 |
Restrictive Agreements |
60 |
7.16 |
Real Property |
61 |
7.17 |
Pension Matters |
61 |
7.18 |
Regulatory Approvals |
61 |
7.19 |
Transactions with Affiliates |
63 |
7.20 |
OFAC; Anti-Terrorism Laws |
63 |
7.21 |
Anti-Corruption |
63 |
7.22 |
Priority of Obligations |
63 |
7.23 |
Royalty and Other Payments |
63 |
7.24 |
Non-Competes |
64 |
7.25 |
Security Interest |
64 |
7.26 |
Data Privacy |
64 |
Section 8. AFFIRMATIVE COVENANTS |
64 |
|
8.01 |
Financial Statements and Other Information |
64 |
-ii-
4871-8492-5047 v.6
8.02 |
Notices of Material Events |
67 |
8.03 |
Existence |
69 |
8.04 |
Payment of Obligations |
69 |
8.05 |
Insurance |
69 |
8.06 |
Books and Records; Inspection Rights |
70 |
8.07 |
Compliance with Laws and Other Obligations |
70 |
8.08 |
Maintenance of Properties, Etc. |
71 |
8.09 |
Licenses |
71 |
8.10 |
Use of Proceeds |
71 |
8.11 |
Certain Obligations Respecting Subsidiaries; Further Assurances |
71 |
8.12 |
Termination of Non-Permitted Liens |
73 |
8.13 |
Board Materials |
74 |
8.14 |
Milestones |
74 |
8.15 |
Maintenance of Regulatory Approvals, Contracts, Intellectual Property, Etc. |
74 |
8.16 |
ERISA Compliance |
75 |
8.17 |
Cash Management |
75 |
8.18 |
Post-Closing Obligations. |
75 |
8.19 |