SECTION 2. THE LOAN
2.1 [Reserved]
2.2 Term Loan Advances.
(a) Term Commitment.
(i) Tranche 1. Subject to the terms and conditions of this Agreement and the proviso hereto, (A) on the Closing Date,
Lenders shall severally (and not jointly) make, and Borrower agrees to draw, a Term Loan Advance in an aggregate principal amount equal to Fifteen Million Dollars ($15,000,000) (such Term Loan Advance, the “Tranche 1A Advance”), (B) at any
time after the Closing DateJanuary 1, 2024 but on or
prior to May 1November 15, 20232024 (the “Tranche 1B Expiration Date”) (or such earlier day as may be consented to in writing by the Lenders in their sole discretion), Borrower may request and Lenders shall severally (and not jointly) make
additional Term Loan Advances in an aggregate principal amount not to exceed TwentyTen Million Dollars ($20,000,00010,000,000) (such Term Loan Advances, the “Tranche 1B Advances”) in minimum increments of Five Million Dollars ($5,000,000) (or if less than Five Million Dollars ($5,000,000) the remaining amount of Term Loan
Advances available to be drawn pursuant to this Section 2.2(a)(i)(B)) and, (C) at any time beginning upon the earlier of (i) the Tranche 1B Expiration Datelater of (i) April 1, 2024 and (ii) the date on which all amounts available to be drawn pursuant to Section 2.2(a)(i)(B) have been drawn (or the Tranche 1B Expiration Date has occurred) and on or prior to December 15, 20232024 (the “Tranche 1C Expiration Date”) (or such earlier day as may
be consented to in writing by the Lenders in their sole discretion), Borrower may request and Lenders shall severally (and not jointly) make additional Term Loan Advances in an aggregate principal amount not to exceed Twenty FiveFifteen Million Dollars ($25,000,00015,000,000) (such Term Loan Advances, the “Tranche 1C Advances”) in
minimum increments of Five Million Dollars ($5,000,000) (or if less than Five Million Dollars ($5,000,000) the remaining amount of Term Loan Advances available to be drawn pursuant to this Section 2.2(a)(i)(C)) and (D) at any time beginning upon the earlier of (i) the Tranche 1C Expiration Date and (ii) the date on which all amounts available to be drawn pursuant to Section 2.2(a)(i)(C)
have been drawn and on or prior to February 15, 2025 (the “Tranche 1D Expiration Date”) (or such earlier day as may be consented to in writing by the Lenders in their sole discretion), Borrower may request and Lenders shall severally (and
not jointly) make additional Term Loan Advances in an aggregate principal amount not to exceed Twenty Million Dollars ($20,000,000) (such Term Loan Advances, the “Tranche 1D Advances”) in minimum increments of Five Million Dollars
($5,000,000) (or if less than Five Million Dollars ($5,000,000) the remaining amount of Term Loan Advances available to be drawn pursuant to this Section 2.2(a)(i)(D)); provided the aggregate Term Loan Advances made by any
Lender pursuant to clause (A), (B) and, (C) and (D) above shall not exceed its respective Tranche 11A Commitment, Tranche 1B Commitment, Tranche 1C
Commitment or Tranche 1D Commitment, as applicable, and the aggregate principal amount of the Term Loan Advances made pursuant to this Section 2.2(a)(i) shall not exceed Sixty Million Dollars ($60,000,000).
(ii) Tranche 2. Subject to the terms and conditions of this Agreement and satisfaction of the Tranche 2 Draw Test,
beginning upon the earlier of (i) the date on which all amounts available to be drawn pursuant to Section 2.2(a)(i)(CD) have been drawn and (ii) the Tranche 1C1D Expiration Date, on or prior to June 30March 15, 20242025, Borrower may request, and
Lenders shall severally (and not jointly) make in an amount not to exceed their respective Tranche 2 Commitments, additional Term Loan Advances in minimum increments of Five Million Dollars ($5,000,000) (or if less than Five Million Dollars
($5,000,000) the remaining amount of Term Loan Advances available to be drawn pursuant to this Section 2.2(a)(ii)), provided that the aggregate principal amount of the Term Loan Advances made pursuant to this Section 2.2(a)(ii)
shall not exceed Fifteen Million Dollars ($15,000,000) (such Term Loan Advances, the “Tranche 2 Advances”).
(iii) Tranche 3. Subject to the terms and conditions of this Agreement and conditioned on approval by the Lenders’
respective investment committees in their sole and unfettered discretion, on or prior to March 31, 2025, Borrower may request, and Lenders shall severally (and not jointly) make in an amount not to exceed their respective Tranche 3
Commitments, additional Term Loan Advances in minimum increments of Five Million Dollars ($5,000,000) (or if less than Five Million Dollars ($5,000,000) the remaining amount of Term Loan Advances available to be drawn pursuant to this Section
2.2(a)(iii)), provided that the aggregate principal amount of the Term Loan Advances made pursuant to this Section 2.2(a)(iii) shall not exceed One Hundred Million Dollars ($100,000,000) (such Term Loan Advances, the “Tranche 3
Advances”).
(iv) The aggregate outstanding Term Loan Advances shall not exceed the Maximum Term Loan Amount.
(b) Advance Request. To obtain a Term Loan Advance, Borrower Representative shall complete, sign and deliver an Advance Request (at least one (1) Business Day before the Closing Date
(in the case of any Term Loan Advance requested to be made on the Closing Date) and at least five (5) Business Days before each Advance Date other than the Closing Date) to Agent. The Lenders shall fund each Term Loan Advance in the manner
requested by the Advance Request provided that each of the conditions precedent to such Term Loan Advance is satisfied as of the requested Advance Date.
(c) Term Loan Interest Rate. The principal balance of each Term Loan Advance shall bear interest thereon from such Advance Date in an amount equal to the product of the outstanding
Term Loan principal balance multiplied by the Term Loan Interest Rate based on a year consisting of 360 days, with interest computed daily based on the actual number of days elapsed. The Term Loan Interest Rate set forth in this Agreement
will float and change on the day the prime rate changes from time to time.
(d) Payment. Borrower will pay accrued but unpaid interest on each Term Loan Advance on the first Business Day of each month, beginning the month after the Advance Date. Borrower
shall repay the aggregate Term Loan principal balance that is outstanding on the day immediately preceding the Amortization Date, in equal monthly installments of principal and interest (mortgage style) beginning on the Amortization Date and
continuing on the first Business Day of each month thereafter until the Secured Obligations (other than inchoate indemnity obligations) are repaid. Any remaining outstanding Term Loan principal balance and all accrued but unpaid interest
hereunder, shall be due and payable on the Term Loan Maturity Date. Borrower shall make all payments under this Agreement without setoff, recoupment or deduction and regardless of any counterclaim or defense. If a payment hereunder becomes
due and payable on a day that is not a Business Day, the due date thereof shall be the immediately preceding Business Day. The Lenders will initiate debit entries to the Borrower’s account as authorized on the ACH Authorization (i) on each
payment date of all periodic obligations payable to the Lenders under each Term Loan Advance and (ii) out-of-pocket legal fees and costs incurred by Agent or the Lenders in connection with Section 11.12 of this Agreement; provided that, with
respect to clause (i) above, in the event that the Lenders or Agent informs Borrower that the Lenders will not initiate a debit entry to Borrower’s account for a certain amount of the periodic obligations due on a specific payment date,
Borrower shall pay to the Lenders such amount of periodic obligations in full in immediately available funds on such payment date; provided, further, that, with respect to clause (i) above, if the Lenders or Agent informs Borrower that the
Lenders will not initiate a debit entry as described above later than the date that is three (3) Business Days prior to such payment date, Borrower shall pay to the Lenders such amount of periodic obligations in full in immediately available
funds on the date that is three (3) Business Days after the date on which the Lenders or Agent notifies Borrower of such; provided, further, that, with respect to clause (ii) above, in the event that the Lenders or Agent informs Borrower that
the Lenders will not initiate a debit entry to Borrower’s account for certain amount of such out-of-pocket legal fees and costs incurred by Agent or the Lenders, Borrower shall pay to the Lenders such amount in full in immediately available
funds within three (3) Business Days.
2.3 Maximum Interest. Notwithstanding any provision in this Agreement or any other Loan Document, it is the parties’ intent not to contract for, charge or receive interest at a rate
that is greater than the maximum rate permissible by law that a court of competent jurisdiction shall deem applicable hereto (which under the laws of the State of California shall be deemed to be the laws relating to permissible rates of
interest on commercial loans) (the “Maximum Rate”). If a court of competent jurisdiction shall finally determine that Borrower has actually paid to the Lenders an amount of interest in excess of the amount that would have been payable if all
of the Secured Obligations had at all times borne interest at the Maximum Rate, then such excess interest actually paid by Borrower shall be applied as follows: first, to the payment of the Secured Obligations consisting of the outstanding
principal; second, after all principal is repaid, to the payment of the Lenders’ accrued interest, costs, expenses, professional fees and any other Secured Obligations; and third, after all Secured Obligations are repaid, the excess (if any)
shall be refunded to Borrower.
2.4 Default Interest. In the event any payment is not paid on the scheduled payment date, an amount equal to five percent (5%) of the past due amount shall be payable on demand. In
addition, upon the occurrence and during the continuation of an Event of Default hereunder, all Secured Obligations, including principal, interest, compounded interest, and professional fees, shall bear interest at a rate per annum equal to
the rate set forth in Section 2.2(c) plus five percent (5%) per annum. In the event any interest is not paid when due hereunder, delinquent interest shall be added to principal and shall bear interest on interest, compounded at the rate set
forth in Section 2.2(c) or Section 2.4, as applicable.
2.5 Prepayment.
(a) Optional Prepayment. At its option, Borrower may prepay all or a portion of the outstanding Advances by paying the entire principal balance (or such portion thereof), all accrued
and unpaid interest thereon, together with a prepayment charge equal to the following percentage of the Advance amount being prepaid: with respect to each Advance, if such Advance amounts are prepaid in any of the first twelve (12) months
following the Closing Date, 2.00%; after twelve (12) months but on or prior to twenty four (24) months following the Closing Date, 1.00%; and thereafter, at any time on or prior to the Term Loan Maturity Date (for the avoidance of doubt,
solely for the purposes of this clause (a), the Term Loan Maturity Date shall, at all times, be deemed to be the date set forth in the second proviso of the definition of Term Loan Maturity Date), 0.50% (each, a “Prepayment Charge”); provided
that each prepayment shall be in a minimum principal amount of $5,000,000 or, if less, the remaining outstanding principal amount of the Advances. If at any time Borrower elects to make a prepayment, and at such time, there are outstanding
Advances under multiple Tranches, the Prepayment Charge shall be determined by applying the amount of such prepayment in the following order: first, to the outstanding principal amount (and accrued but unpaid interest thereon) of Advances
outstanding under the Tranche with the latest initial funding date; second, to the outstanding principal amount (and accrued but unpaid interest thereon) of Advances outstanding under the Tranche with the next latest initial funding date and
so on until the entire principal balance of all Advances made hereunder (and all accrued but unpaid interest thereon) is paid in full. Borrower agrees that the Prepayment Charge is a reasonable calculation of the Lenders’ lost profits in view
of the difficulties and impracticality of determining actual damages resulting from an early repayment of the Advances. Borrower shall prepay the outstanding amount of all principal and accrued interest through the prepayment date and the
Prepayment Charge upon the occurrence of a Change in Control or any other prepayment hereunder. Notwithstanding the foregoing, Agent and the Lenders agree to waive the Prepayment Charge if Agent and the Lenders (in their sole and absolute
discretion) agree in writing to refinance the Advances prior to the Term Loan Maturity Date. For the avoidance of doubt, if a payment hereunder becomes due and payable on a day that is not a Business Day, the due date thereof shall be the
immediately succeeding Business Day.
(b) Mandatory Prepayment. Within five (5) Business Days of receipt of any Net Cash Proceeds from a Prepayment Event, Borrower shall at Agent’s election in its sole and absolute
discretion, prepay the outstanding Advances by paying up to 100% of such Net Cash Proceeds. For the avoidance of doubt, no Prepayment Charge shall apply to a prepayment in accordance with this Section 2.5(b).
2.6 End of Term Charge.
(a) On any date that Borrower partially prepays the outstanding Secured Obligations pursuant to Section 2.5, Borrower shall pay the Lenders a charge equal to 6.95% of the original
principal amount of such Term Loan Advances being prepaid.
(b) On the earliest to occur of (i) the Term Loan Maturity Date, (ii) the date that Borrower prepays the outstanding Secured Obligations (other than any inchoate indemnity obligations
and any other obligations which, by their terms, are to survive the termination of this Agreement) in full, or (iii) the date that the Secured Obligations become due and payable (including by acceleration of the Secured Obligations during an
Event of Default pursuant to Section 10), Borrower shall pay the Lenders a charge equal to 6.95% of the aggregate original principal amount of all Term Loan Advances made hereunder minus the aggregate amount of payments made pursuant to
Section 2.6(a) (collectively with any charge made pursuant to Section 2.6(a), the “End of Term Charge”).
(c) Notwithstanding the required payment date of such End of Term Charge, the applicable pro rata portion of the End of Term Charge shall be deemed earned by the Lenders as of each
such date an applicable Term Loan Advance is made. For the avoidance of doubt, if a payment hereunder becomes due and payable on a day that is not a Business Day, the due date thereof shall be the immediately preceding Business Day.
2.7 Pro Rata Treatment. Each payment (including prepayment) on account of any fee and any reduction of the Term Loans shall be made pro rata according to the Term Commitments of the
relevant Lender. Except as otherwise provided in this Agreement, all of the rights, interests and obligations of each Lender under this Agreement and related Loan Documents, including security interests in the Collateral under this Agreement,
shall be shared by the Lenders in the ratio of (a) the aggregate outstanding principal amount of such Lender’s Term Loan Advances to Borrower under this Agreement to (b) the aggregate outstanding principal amount of all Term Loan Advances to
Borrower under this Agreement. Each Lender shall promptly remit to the other Lender such sums as may be necessary to ensure the ratable repayment of each Lender’s portion of any Term Loan Advance. Notwithstanding the foregoing, a Lender
receiving a scheduled payment shall not be responsible for determining whether the other Lender also received its scheduled payment on such date; provided, however, if it is later determined that a Lender received more than its ratable share
of scheduled payments made on any date or dates, then such Lender shall remit to the other Lender such sums as may be necessary to ensure the ratable payment of such scheduled payments, as instructed by Agent. Any reference in this Agreement
to an allocation between or sharing by the Lenders of any right, interest or obligation “ratably,” “proportionally” or in similar terms shall refer to this ratio. The provisions hereof shall apply irrespective of the time or order of
attachment or perfection of security interests, or the time or order of filing or recording of financing statements.
2.8 Taxes; Increased Costs. Loan Parties, the Agent and the Lenders each hereby agree to the terms and conditions set forth on Addendum 1 attached hereto.
2.9 Treatment of Prepayment Charge and End of Term Charge. Each Loan Party agrees that any Prepayment Charge and any End of Term Charge payable shall be presumed to be the liquidated
damages sustained by each Lender as the result of the early termination, and each Loan Party agrees that it is reasonable under the circumstances currently existing and existing as of the Closing Date. The Prepayment Charge and the End of
Term Charge shall also be payable in the event the Secured Obligations (and/or this Agreement) are satisfied or released by foreclosure (whether by power of judicial proceeding), deed in lieu of foreclosure, or by any other means. Each Loan
Party expressly waives (to the fullest extent it may lawfully do so) the provisions of any present or future statute or law that prohibits or may prohibit the collection of the foregoing Prepayment Charge and End of Term Charge in connection
with any such acceleration. Each Loan Party agrees (to the fullest extent that each may lawfully do so): (a) each of the Prepayment Charge and the End of Term Charge is reasonable and is the product of an arm’s length transaction between
sophisticated business people, ably represented by counsel; (b) each of the Prepayment Charge and the End of Term Charge shall be payable notwithstanding the then prevailing market rates at the time payment is made; (c) there has been a
course of conduct between the Lenders and the Loan Parties giving specific consideration in this transaction for such agreement to pay the Prepayment Charge and the End of Term Charge as a charge (and not interest) in the event of prepayment
or acceleration; (d) each Loan Party shall be estopped from claiming differently than as agreed to in this paragraph. Each Loan Party expressly acknowledges that their agreement to pay each of the Prepayment Charge and the End of Term Charge
to the Lenders as herein described was on the Closing Date and continues to be a material inducement to the Lenders to provide the Term Loans.
SECTION 3. SECURITY INTEREST
3.1 Grant of Security Interest. As security for the prompt and complete payment when due (whether on the payment dates or otherwise) of all the Secured Obligations, each Loan Party
grants to Agent a security interest in all of such Loan Party’s right, title, and interest in, to and under all of such Loan Party’s personal property and other assets including without limitation the following (except as set forth herein)
whether now owned or hereafter acquired (collectively, together with the Pledged Collateral, the “Collateral”): (a) Receivables; (b) Equipment; (c) Fixtures; (d) General Intangibles (other than Intellectual Property); (e) Inventory; (f)
Investment Property; (g) Deposit Accounts; (h) Cash; (i) Goods; and (j) all other tangible and intangible personal property (other than Intellectual Property) of such Loan Party whether now or hereafter owned or existing, leased, consigned by
or to, or acquired by, such Loan Party and wherever located, and any of such Loan Party’s property in the possession or under the control of Agent; and, to the extent not otherwise included, all Proceeds of each of the foregoing and all
accessions to, substitutions and replacements for, and rents, profits and products of each of the foregoing; provided, however, that the Collateral shall include all Accounts and General Intangibles that consist of rights to payment and
proceeds from the sale, licensing or disposition of all or any part, or rights in, the Intellectual Property (the “Rights to Payment”). Notwithstanding the foregoing, if a judicial authority (including a U.S. Bankruptcy Court) holds that a
security interest in the underlying Intellectual Property is necessary to have a security interest in the Rights to Payment, then the Collateral shall automatically, and effective as of the date of this Agreement, include the Intellectual
Property to the extent necessary to permit perfection of Agent’s security interest in the Rights to Payment.
3.2 Excluded Collateral. Notwithstanding the broad grant of the security interest set forth in Section 3.1, above, the Collateral shall not include any Excluded Assets.
3.3 Pledged Collateral.
(a) Each Loan Party hereby pledges, collaterally assigns and grants to Agent a security interest in the Pledged
Collateral, as security for the performance of the Secured Obligations. Each Loan Party irrevocably waives any and all of its rights under provisions of any Organizational Documents of any Controlled Entity which is a limited liability
company or limited partnership or stock corporation, and under the laws under which such Controlled Entity has been organized, to the extent such Loan Party has the legal capacity to do so and that such waiver is permitted, that would
operate to (a) prohibit, restrict, condition or otherwise adversely affect the pledge hereunder or any enforcement action which may be taken in respect of this pledge or (b) otherwise conflict with the terms of this Section 3.3.
Each Loan Party of which Equity Interests consisting of limited liability company or limited partnership interests or stock corporation constitute Pledged Collateral hereby irrevocably consents to the grant of the security interest provided
for herein and to Agent or its nominee becoming a member or limited or general partner, as applicable, in such limited liability company or limited partnership or stock corporation, as applicable (including succeeding to any management
rights appurtenant thereto), in connection with the exercise of remedies pursuant to Section 10; provided that such successor member or partner, as applicable, then agrees in writing to be bound by, and a party to, the applicable
Organizational Document pursuant to the terms therein.
(b) Except as otherwise expressly provided in this Agreement, any sums or other property paid or distributed upon
or with respect to any of the Pledged Collateral, whether by dividend or redemption or upon the liquidation or dissolution or recapitalization or reclassification of the capital of any issuer of the applicable Equity Interests or otherwise,
shall, be paid over and delivered to Agent to be held by Agent as security for the payment in full in cash of all of the Secured Obligations, in each case, to the extent constituting Net Cash Proceeds. All payments received by a Loan Party
shall, until paid or delivered to Agent, be held in trust for Agent, as security for the payment and performance in full of all of the Secured Obligations, and when paid, shall be deposited into a Deposit Account with respect to which Agent
has an Account Control Agreement.
(c) So long as no Event of Default shall have occurred and be continuing and at Agent’s written direction to the contrary, each Loan Party shall be entitled to receive all cash
dividends and distributions paid in respect of Pledged Collateral owned by it, and, prior to any acceleration pursuant to Section 10.1 hereof and any election by Agent of any remedies pursuant to Section 10.2 hereof, each Loan
Party shall be entitled to vote any Equity Interests owned by it and to give consents, waivers and ratifications in respect of Pledged Collateral; provided, however, that no vote shall be cast or consent, waiver or ratification be given by
any Loan Party if the effect thereof would materially impair Agent’s rights with respect to the enforcement of its Lien on the Pledged Collateral or be inconsistent with or result in any violation of any of the provisions of this Agreement or
any of the Loan Documents. All rights of any Loan Party to receive cash dividends and distributions with respect to Pledged Collateral owned by such Loan Party and at Agent’s option, upon notice by Agent to the Parent, all rights to vote and
give consents, waivers and ratifications with respect to such Pledged Collateral, shall terminate upon the occurrence and during the continuation of an Event of Default.
3.4 Release; Agreements by Agent with respect to Pledged Collateral. The lien and security interest created hereunder shall be automatically released (a) with respect to all Collateral
upon the payment in full of all Secured Obligations in accordance with this Agreement (other than inchoate indemnity obligations and any other obligations which, by their terms, are to survive the termination of this Agreement), (b) with
respect to any Collateral that is the subject of a Transfer pursuant to clause (v) or clause (vi) of the definition of Permitted Transfers, upon the consummation of such transaction or (c) if otherwise approved, authorized or ratified in
writing by Agent in its sole discretion. Upon such release, Agent shall, upon the reasonable request and at the sole cost and expense of Borrower, assign, transfer and deliver to Borrower, against receipt and without recourse to or warranty
by Agent, except as to the fact that Agent does not continue to encumber the released assets, such Collateral or any part thereof, which shall be released in accordance with customary documents and instruments (including UCC-3 termination
financing statements or releases) acknowledging the release of such Collateral. Agent agrees, on behalf of itself and Lender, that if any Platform Company is consummating an initial public offering of its stock or any relevant follow on
offering, that Agent shall enter into lockup or similar agreements reasonably requested by Parent or any underwriter with respect to Agent’s exercise of remedies with respect to the Pledged Collateral constituting Equity Interests the
Platform Company that is the issuer in such offering, in each case at the sole cost and expense of Parent.
SECTION 4. CONDITIONS PRECEDENT TO LOAN
The obligations of the Lenders to make the Loan hereunder are subject to the satisfaction by Borrower of the following conditions:
4.1 Initial Advance. On or prior to the Closing Date, Borrower Representative shall have delivered to Agent the following:
(a) executed copies of the Loan Documents (except for the Foreign Security Documents and the Account Control Agreements which shall be delivered in accordance with Schedule 4.4 (Post-closing Deliverables)), together with copies of all executed closing deliverables required pursuant to the terms thereof, and all other documents and instruments reasonably required by Agent to
effectuate the transactions contemplated hereby or to create and perfect the Liens of Agent with respect to all Collateral, in all cases in form and substance reasonably acceptable to Agent;
(b) a legal opinion of (i) Loan Parties’ US counsel, (ii) Loan Parties Dutch counsel and (iii) Loan Parties German counsel, in each case, in form and substance reasonably acceptable to
Agent;
(c) a duly executed certificate of an officer of each Loan Party certifying and attaching copies of (A) the certificate of incorporation and other
charter documents, certified as of a recent date by the jurisdiction of organization of such Loan Party as in effect as of the Closing Date; (B) the bylaws, operating agreement or similar governing document of such Loan Party, as in effect
as of the Closing Date; (C) resolutions of such Loan Party’s governing body evidencing approval of the Loan and other transactions contemplated by the Loan Documents, as in effect as of the Closing Date; (D) resolutions of the holders of
such Loan Party’s Equity Interests in connection with the transactions contemplated by this Agreement as in effect as of the Closing Date, to the extent required by the applicable Organizational Documents; (E) a schedule setting forth the
name, title and specimen signature of officers or other authorized signers on behalf of each Loan Party and (F) a certificate of good standing (or foreign equivalent or insolvency search, as applicable) for each Loan Party from its
jurisdiction of organization and similar certificates from all other jurisdictions in which it does business and where the failure to be qualified could have a Material Adverse Effect;
(d) a duly executed certificate of an officer of Parent certifying and attaching copies of (A) the certificate of incorporation and other charter
documents, certified as of a recent date by the jurisdiction of organization of each Platform Company, as in effect as of the Closing Date; (B) the bylaws, operating agreement or similar governing document of each Platform Company, as in
effect as of the Closing Date; (C) copies of all material (x) Equity Documents and (y) Platform Company Transaction Documents, in each case, in effect as of the Closing Date; (D) a summary capitalization table of each Platform Company and
(E) a group structure chart, as in effect as of the Closing Date;
(e) a perfection certificate of the Loan Parties, collectively, together with duly executed signatures thereto;
(f) [reserved];
(g) certified copies, dated as of a recent date, with respect to the Loan Parties and the Controlled Entities of searches for financing statements filed in the central filing office
of the State of Delaware, State of New York, State of California or the District of Columbia or other filing offices deemed reasonably necessary by the Agent, as applicable, accompanied by evidence satisfactory to the Agent that the Liens on
any Collateral indicated in any such financing statements either constitute Permitted Liens or have been or, in connection with the initial Term Loan Advance, will be terminated or released;
(h) customary Intellectual Property search results with respect to the Loan Parties and the Controlled Entities;
(i) copies of all consents, waivers, notices and other documents set forth on Schedule 1 (other than the InnarisBio Consent);
(j) payment of the Due Diligence Fee, Initial Facility Charge and reimbursement of Agent’s and the Lenders’ current expenses reimbursable pursuant to this Agreement, which amounts may
be deducted from the initial Advance;
(k) all certificates of insurance required pursuant to Section 6.1 and Section 6.2 and copies of each insurance policy required hereunder;
(l) a Process Letter in accordance with clause (f) of Addendum 4; and
(m) such other documents as Agent may reasonably request.
4.2 All Advances. On each Advance Date:
(a) Agent shall have received an Advance Request for the relevant Advance as required by Section 2.2(b), each duly executed by Borrower Representative’s Chief Executive Officer or
Chief Financial Officer;
(b) the representations and warranties set forth in this Agreement shall be true and correct in all material respects on and as of the Advance Date 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;
(c) the Loan Parties shall be in compliance with all the terms and provisions set forth herein and in each other Loan Document on its part to be observed or performed, and at the time
of and immediately after such Advance no Event of Default shall have occurred and be continuing;
(d) with respect to any Tranche 2 Advance or Tranche 3 Advance, the Loan Parties shall have paid the portion of the Tranche 2 Facility Charge or Tranche 3 Facility Charge, as
applicable to such Advance;
(e) with respect to any Tranche 2 Advance, the Tranche 2 Draw Test has been satisfied; and
(f) each Advance Request shall be deemed to constitute a representation and warranty by Borrower on the relevant Advance Date as to the matters specified in paragraphs (b) and (c) of
this Section 4.2 and as to the matters set forth in the Advance Request.
4.3 No Default. As of the Closing Date and each Advance Date, (a) 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 and (b) no event that has had or could reasonably be expected to have a Material Adverse Effect has occurred and is continuing.
4.4 Post-Closing Deliverables. Loan Parties shall deliver the documents or satisfy the conditions, as applicable, in accordance with Schedule 4.4 hereto.
SECTION 5. REPRESENTATIONS AND WARRANTIES OF THE LOAN PARTIES
Each Loan Party represents and warrants on behalf of itself or on behalf of the Controlled Entities, as applicable, that:
5.1 Corporate Status. Each Loan Party is duly organized, legally existing and in good standing under the laws its state of incorporation or formation (as applicable), and is duly
qualified as a foreign corporation in all jurisdictions in which the nature of its business or location of its properties require such qualifications and where the failure to be qualified would reasonably be expected to have a Material
Adverse Effect. Each Loan Party’s present name, former names (if any), locations, place of formation, Tax identification number, organizational identification number and other information are correctly set forth in Exhibit B, as may be
updated by the Loan Parties in a written notice (including any Compliance Certificate) provided to Agent after the Closing Date.
5.2 Collateral; Intellectual Property. Each Loan Party owns the Collateral and, each Loan Party and Controlled Entity, owns the Intellectual Property, free of all Liens, except for
Permitted Liens. Each Loan Party has the power and authority to grant to Agent a Lien in the Collateral as security for the Secured Obligations.
5.3 Consents. Each Loan Party’s execution, delivery and performance of this Agreement and all other Loan Documents, (i) have been duly authorized by all necessary corporate action of
such Loan Party, (ii) will not result in the creation or imposition of any Lien upon the Collateral, other than Permitted Liens and the Liens created by this Agreement and the other Loan Documents, (iii) do not violate any provisions of such
Loan Party’s Certificate or Articles of Incorporation (as applicable), bylaws, Articles of Association (as applicable) or any, law, regulation, order, injunction, judgment, decree or writ to which such Loan Party is subject and (iv) except as
described on Schedule 5.3 and Schedule 1, do not violate any material contract or material agreement or require the consent or approval of any other Person which has not already been obtained. The individual or individuals executing the Loan
Documents are duly authorized to do so.
5.4 Material Adverse Effect. No event that has had or would reasonably be expected to have a Material Adverse Effect has occurred and is continuing. No Loan Party or Controlled Entity
is aware of any event likely to occur that is reasonably expected to result in a Material Adverse Effect.
5.5 Actions Before Governmental Authorities. There are no actions, suits or proceedings at law or in equity or by or before any Governmental Authority now pending or, to the
knowledge of any Loan Party, threatened in writing against or affecting any Loan Party or any Controlled Entity, or their property, that is reasonably expected to result in a Material Adverse Effect.
5.6 Laws.
(a) No Loan Party nor any Controlled Entity is in violation of any law, rule or regulation, or in default with respect to any judgment, writ, injunction or decree of any Governmental
Authority, where such violation or default is reasonably expected to result in a Material Adverse Effect. No Loan Party or Controlled Entity is in default in any material manner under any provision of any agreement or instrument evidencing
material Indebtedness, or any other material agreement to which it is a party or by which it is bound.
(b) No Loan Party nor any Controlled Entity is required to register as an “investment company” under the Investment Company Act of 1940, as amended. No Loan Party nor any Controlled
Entity is engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Each Loan Party and each Controlled Entity with activities in the United
States has complied in all material respects with the Federal Fair Labor Standards Act. No Loan Party nor any Controlled Entity is a “holding company” or an “affiliate” of a “holding company” or a “subsidiary company” of a “holding company”
as each term is defined and used in the Public Utility Holding Company Act of 2005. No Loan Party’s nor any Controlled Entity’s properties or assets has been used by such Loan Party or such Controlled Entity or, to any Loan Party’s
knowledge, by previous Persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than in material compliance with applicable laws. Each Loan Party and each Controlled Entity has obtained all material
consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all Governmental Authorities that are necessary to continue their respective businesses as currently conducted.
(c) No Loan Party, any Controlled Entity, or to any Loan Party’s knowledge, any Controlled Entity’s Affiliates or any of their respective agents acting or benefiting in any capacity
in connection with the transactions contemplated by this Agreement is (i) in violation of any Anti-Terrorism Law, (ii) engaging in or conspiring to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding or
attempts to violate, any of the prohibitions set forth in any Anti-Terrorism Law, or (iii) is a Blocked Person. No Loan Party, any Controlled Entity, or to the knowledge of any Loan Party, any of their Affiliates or agents, acting or
benefiting in any capacity in connection with the transactions contemplated by this Agreement, (x) conducts any business or engages in making or receiving any contribution of funds, goods or services to or for the benefit of any Blocked
Person, or (y) deals in, or otherwise engages in any transaction relating to, any property or interest in property blocked pursuant to Executive Order No. 13224, any similar executive order or other Anti-Terrorism Law. None of the funds to
be provided under this Agreement will be used, directly or indirectly, (a) for any activities in violation of any applicable anti-money laundering, economic sanctions and anti-bribery laws and regulations laws and regulations or (b) for any
payment to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any
improper advantage, in violation of the United States Foreign Corrupt Practices Act of 1977, as amended. This Section 5.6(c) shall not apply (i) to any Loan Party to which the Council Regulation (EC) 2271/1996 applies in so far as it would
result in a violation of or conflict with any provision of Council Regulation (EC) 2271/1996 and (ii) to any Loan Party to which any other anti-boycott statute applies in so far as it would result in a violation of or conflict with any
provision of such other anti-boycott statute, including section 7 of the German Foreign Trade Regulation (Außenwirtschaftsverordnung – AWV) in connection with
the German Foreign Trade Law (Außenwirtschaftsgesetz)).
5.7 Information Correct and Current. No written information, report, Advance Request, financial statement, exhibit or schedule furnished, by or on behalf of any Loan Party or
Controlled Entity to Agent in connection with any Loan Document or included therein or delivered pursuant thereto contained, or, when taken as a whole, contains or will contain any material misstatement of fact or, when taken together with
all other such written information or documents, omitted, omits or will omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were, are or will be made, not materially
misleading at the time such statement was made or deemed made. Additionally, any and all financial or business projections provided by the Loan Parties to Agent, whether prior to or after the Closing Date, shall be (i) provided in good faith
and based on the most current data and information available to the Loan Parties, and (ii) the most current of such projections provided to Parent’s board of directors (it being understood that such projections are subject to significant
uncertainties and contingencies, many of which are beyond the control of the Loan Parties, that no assurance is given that any particular projections will be realized, that actual results may differ).
5.8 Tax Matters. Except as described on Schedule 5.8, (a) the Loan Parties and Controlled Entities have filed all federal and state income Tax returns and other material Tax returns
that they are required to file, (b) the Loan Parties and the Controlled Entities have duly paid all federal and state income Taxes and other material Taxes or installments thereof that they are required to pay, except Taxes being contested in
good faith by appropriate proceedings and for which such Loan Party or Controlled Entity maintains adequate reserves in accordance with GAAP, and (c) to the best of Loan Party’s knowledge, no proposed or pending Tax assessments, deficiencies,
audits or other proceedings with respect to Loan Party or any Controlled Entity have had, or would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
5.9 Intellectual Property Claims. The Loan Parties and the Controlled Entities are the sole owner of, or otherwise have the right to use, the Intellectual Property material to their
business. Except as described on Schedule 5.9, (i) each of the material Copyrights, Trademarks and Patents is valid and enforceable, (ii) no material part of the Intellectual Property has been judged invalid or unenforceable, in whole or in
part, and (iii) no claim has been made to a Loan Party or a Controlled Entity that any material part of the Intellectual Property violates the rights of any third party. Exhibit C is a true, correct and complete list of each of the Loan
Parties’ and Controlled Entities’ Patents, registered Trademarks, registered Copyrights, and material agreements under which a Loan Party or Controlled Entity licenses Intellectual Property from third parties (other than shrink-wrap software
licenses), together with application or registration numbers, as applicable, owned by a Loan Party or a Controlled Entity, in each case as of the Closing Date. The Loan Parties and the Controlled Entities are not in material breach of, nor
have the Loan Parties or the Controlled Entities failed to perform any material obligations under, any of the foregoing contracts, licenses or agreements and, to Loan Party’s knowledge, no third party to any such contract, license or
agreement is in material breach thereof or has failed to perform any material obligations thereunder.
5.10 Intellectual Property.
(a) The Loan Parties and the Controlled Entities have all material rights with respect to Intellectual Property necessary or material in the operation or conduct of their business as
currently conducted and proposed to be conducted by the Loan Parties and the Controlled Entities. Without limiting the generality of the foregoing, and in the case of material Licenses, except for restrictions that are unenforceable under
Division 9 of the UCC or other applicable law, the Loan Parties and the Controlled Entities have the right, to the extent required to operate their business, to freely transfer, license or assign Intellectual Property necessary or material in
the operation or conduct of their business as currently conducted and currently proposed to be conducted by them, without condition, restriction or payment of any kind (other than license payments in the ordinary course of business) to any
third party, and the Loan Parties and the Controlled Entities, to the Loan Parties’ knowledge, own or have the right to use, pursuant to valid licenses, all software development tools, library functions, compilers and all other third-party
software that are material to their business and used in the design, development, promotion, sale, license, manufacture, import, export, use or distribution of Products except customary covenants in inbound license agreements and equipment
leases where a Loan Party is the licensee or lessee.
(b) No material software or other materials used by any Loan Party or any Controlled Entity (or used in any Products) are subject to an open-source or
similar license (including but not limited to the General Public License, Lesser General Public License, Mozilla Public License, or Affero License) (collectively, “Open Source Licenses”) in a manner that would cause such software or other
materials to have to be (i) distributed to third parties at no charge or a minimal charge (royalty-free basis); (ii) licensed to third parties to modify, make derivative works based on, decompile, disassemble, or reverse engineer; or (iii)
used in a manner that does could require disclosure or distribution in source code form.
5.11 Products. Except as described on Schedule 5.11, no Intellectual Property owned by a Loan Party or a Controlled Entity or Product has been or is subject to any actual or, to the
knowledge of Loan Parties, threatened litigation, proceeding (including any proceeding in the United States Patent and Trademark Office or any corresponding foreign office or agency) or outstanding decree, order, judgment, settlement
agreement or stipulation that restricts in any manner any Loan Party’s or Controlled Entity’s use, transfer or licensing thereof or that may affect the validity, use or enforceability thereof. There is no decree, order, judgment, agreement,
stipulation, arbitral award or other provision entered into in connection with any litigation or proceeding that obligates any Loan Party or Controlled Entity to grant licenses or ownership interest in any future Intellectual Property related
to the operation or conduct of the business of Loan Parties or Controlled Entities or Products. No Loan Party or Controlled Entity has received any written notice or claim, or, to the knowledge of Loan Parties, oral notice or claim,
challenging or questioning any Loan Party’s or Controlled Entity’s ownership in any Intellectual Property (or written notice of any claim challenging or questioning the ownership in any licensed Intellectual Property of the owner thereof) or
suggesting that any third party has any claim of legal or beneficial ownership with respect thereto nor, to Loan Parties’ knowledge, is there a reasonable basis for any such claim. To the Loan Parties’ knowledge, neither the Loan Parties’ or
Controlled Entitles’ use of its Intellectual Property nor the production and sale of Products materially infringes the Intellectual Property or other rights of others.
5.12 Financial Accounts. Exhibit D, as may be updated by the Loan Parties in a written notice provided to Agent after the Closing Date, is a true, correct and complete list of (a) all
banks and other financial institutions at which any Loan Party or any Controlled Entity maintains Deposit Accounts and (b) all institutions at which any Loan Party or any Controlled Entity maintains an account holding Investment Property, and
such exhibit correctly identifies the name and address of each bank or other institution, the name in which the account is held, a description of the purpose of the account, and the complete account number therefor.
5.13 Employee Loans. Other than loans constituting Permitted Investments, no Loan Party or Controlled Entity has outstanding loans to any employee, officer or director of such Loan
Party or Controlled Entity nor has any Loan Party or Controlled Entity guaranteed the payment of any loan made to an employee, officer or director of such Loan Party or Controlled Entity by a third party, except as permitted by the Loan
Documents.
5.14 Capitalization; Platform Companies. The Loan Parties and Controlled Entities do not own any stock, partnership interest or other securities of any Person, except for Permitted
Investments. Each Loan Party’s Investment in a Platform Company is owned directly by a Loan Party (and not through a subsidiary of such Loan Party, or any other Person). As of the
Closing Date, Schedule 1 sets forth a true, correct and complete list of the Investments made or maintained by the Parent in a Platform Company and the Equity Interests owned, directly or indirectly, by the Parent in a Platform Company.
5.15 Pledged Collateral; Instruments. All Equity Interests constituting Pledged Collateral are validly issued, fully paid and non-assessable in all material respects. The execution,
delivery and performance thereof and the pledge of and granting of a security interest in the Pledged Collateral under this Agreement do not contravene any provision of the Organizational Documents of the issuer of such Equity Interests. All
certificates representing a Loan Party’s interest in Pledged Collateral have been delivered to Agent, together with duly executed transfer powers or other appropriate instruments of transfer (each in form and substance satisfactory to Agent),
duly executed in blank by the applicable Loan Party. As of the Closing Date, Schedule 1 sets forth (i) a true and accurate schedule of all Pledged Collateral and all Instruments owned by Loan Parties, and (ii) a complete and accurate list of
all consents, waivers, amendment or modification or other action to be taken in connection with the grant of the security interest pursuant to the terms of this Agreement in the Pledged Collateral.
5.16 Solvency. (i) The fair salable value of each Loan Party’s and Controlled Entity’s consolidated assets exceeds the fair value of such Loan Party’s and Controlled Entity’s
liabilities; (ii) no Loan Party or Controlled Entity is left with unreasonably small capital after the transactions in this Agreement; and (iii) each Loan Party and Controlled Entity is able to pay its debts (including trade debts) as they
become due.
SECTION 6. INSURANCE; INDEMNIFICATION
6.1 Coverage. The Loan Parties shall cause to be carried and maintained commercial general liability insurance, on an occurrence form, against risks customarily insured against in
Loan Parties’ line of business. Such risks shall include the risks of bodily injury, including death, property damage, personal injury, advertising injury, and contractual liability per the terms of the indemnification agreement found in
Section 6.3. The Loan Parties must maintain a minimum of $2,000,000 (or foreign currency equivalent, if applicable) of commercial general liability insurance for each occurrence. The Loan Parties have and agree to maintain a minimum of
$2,000,000 of directors’ and officers’ insurance for each occurrence and $5,000,000 in the aggregate. So long as there are any Secured Obligations outstanding, the Loan Parties shall also cause to be carried and maintained insurance upon the
Collateral, insuring against all risks of physical loss or damage howsoever caused, in an amount not less than the full replacement cost of the Collateral, provided that such insurance may be subject to standard exceptions and deductibles.
If any Loan Party fails to obtain the insurance called for by this Section 6.1 or fails to pay any premium thereon or fails to pay any other amount which such Loan Party is obligated to pay under this Agreement or any other Loan Document or
which may be required to preserve the Collateral, Agent may obtain such insurance or make such payment, and all amounts so paid by Agent are immediately due and payable, bearing interest at the then highest rate applicable to the Secured
Obligations, and secured by the Collateral. Agent will make reasonable efforts to provide Loan Parties with notice of Agent obtaining such insurance at the time it is obtained or within a reasonable time thereafter. No payments by Agent are
deemed an agreement to make similar payments in the future or Agent’s waiver of any Event of Default.
6.2 Certificates. The Loan Parties shall deliver to Agent certificates of insurance that evidence compliance with the insurance obligations in Section 6.1 and the obligations
contained in this Section 6.2. Such insurance certificates shall state Agent (shown as “Hercules Capital, Inc., as Agent”) is an additional insured for commercial general liability, a lenders loss payable for all risk property damage
insurance, subject to the insurer’s approval, and a lenders loss payable for property insurance and additional insured for liability insurance for any future insurance that the Loan Parties may acquire from such insurer. Attached to the
certificates of insurance will be additional insured endorsements for liability and lender’s loss payable endorsements for all risk property damage insurance. All certificates of insurance will provide for a minimum of thirty (30) days
advance written notice to Agent of cancellation (other than cancellation for non-payment of premiums, for which ten (10) days’ advance written notice shall be sufficient). Any failure of Agent to scrutinize such insurance certificates for
compliance is not a waiver of any of Agent’s rights, all of which are reserved. The Loan Parties shall provide Agent with copies of each insurance policy other than any director’s and officer’s insurance policies of the Loan Parties, and
upon entering or amending any insurance policy required hereunder, Loan Parties shall provide Agent with copies of such policies and shall promptly deliver to Agent updated insurance certificates with respect to such policies.
6.3 Indemnity. Each Loan Party agrees to indemnify and hold Agent, the Lenders and their officers, directors, employees, agents, in-house attorneys, representatives and shareholders
(each, an “Indemnified Person”) harmless from and against any and all claims, costs, expenses, damages and liabilities (including such claims, costs, expenses, damages and liabilities based on liability in tort, including strict liability in
tort), including reasonable attorneys’ fees and disbursements and other costs of investigation or defense (including those incurred upon any appeal) (collectively, “Liabilities”), that may be instituted or asserted against or incurred by such
Indemnified Person as the result of credit having been extended, suspended or terminated under this Agreement and the other Loan Documents or the administration of such credit, or in connection with or arising out of the transactions
contemplated hereunder and thereunder, or any actions or failures to act in connection therewith, or arising out of the disposition or utilization of the Collateral, excluding in all cases Liabilities to the extent resulting solely from any
Indemnified Person’s gross negligence or willful misconduct. This Section 6.3 shall not apply with respect to Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax
claim. In no event shall any Indemnified Person be liable on any theory of liability for any special, indirect, consequential or punitive damages (including any loss of profits, business or anticipated savings). This Section 6.3
shall survive the repayment of indebtedness under, and otherwise shall survive the expiration or other termination of, this Agreement.
SECTION 7. COVENANTS OF THE LOAN PARTIES
Each Loan Party agrees as follows:
7.1 Financial Statements, Reports, Certificates. The Loan Parties shall furnish to Agent the financial statements, reports and certificates and other information listed hereinafter:
(a) Monthly Financial Statements. (A) Whether or not the Minimum Market Capitalization Requirement has been met, for each of the calendar months
ending after the Closing Date, as soon as practicable (and in any event within thirty (30) days) after the end of each such calendar month, (i) month-end bank or investment account statements showing account
balances for each Loan Party, and (ii) month-end aged vendor accounts payable invoice listing (excluding balances between Loan Parties) for each Loan Party, certified by Parent’s Chief Financial Officer or Controller; and (B) Solely
to the extent the Minimum Market Capitalization Requirement has not been met, for each of the calendar months ending after the first twelve (12) months following the Closing Date, as soon as practicable (and in
any event within thirty (30) days) after the end of each such calendar month, unaudited interim and year-to-date financial statements of each Loan Party as of the end of such month, including balance sheet and related statements of income
and including, for the balance sheet line item for “investments”, a breakdown by Platform Company or other investment, all certified by Parent’s Chief Executive Officer or Chief Financial Officer to the effect that they have been prepared
in accordance with GAAP (x) except for the absence of footnotes, (y) subject to normal year-end adjustments, and (z) except for certain non-cash items that are customarily included in quarterly and
annual financial statements;
(b) Quarterly Financial Statements. As soon as practicable (and in any event within forty-five (45) days) after the end of each fiscal quarter, unaudited interim and year-to-date
financial statements as of the end of such calendar quarter (prepared on a consolidated basis, if applicable), including balance sheet and related statements of income, certified by Parent’s Chief Executive Officer, Chief Financial Officer,
principal accounting officer or any other duly authorized officer or director to the effect that they have been prepared in accordance with GAAP, except (i) for the absence of footnotes, and (ii) that they are subject to normal year-end
adjustments;
(c) Annual Financial Statements. As soon as practicable (and in any event within ninety (90) days) after the end of each fiscal year,
unqualified (other than a going concern qualification or limitation) audited financial statements as of the end of such year (prepared on a consolidated basis, if applicable), including balance sheet and related statements of income, and
setting forth in comparative form the corresponding figures for the preceding fiscal year, certified by a firm of independent certified public accountants selected by Parent and reasonably acceptable to Agent, accompanied by any management
report from such accountants;
(d) Compliance Certificate. A soon as practicable (and in any event within thirty (30) days) after the end of each calendar month, a Compliance Certificate in the form of Exhibit E;
(e) Other Statements. Promptly (and in any event within ten (10) Business Days) after the sending or filing thereof, as the case may be, copies of any proxy statements, financial
statements or reports that Parent has made available to holders of its common stock or to the holders of Permitted Convertible Debt or Subordinated Debt and copies of any regular, periodic and special
reports or registration statements that Parent files with the Securities and Exchange Commission or any Governmental Authority that may be substituted therefor, or any national securities exchange;
(f) Annual Operating Budget and Financial Projections. As soon as available, at least annually, and in any event no later than the earlier to occur of (i) ninety (90) days after the
end of each fiscal year of each Loan Party and (ii) ten (10) days after approval by any Loan Party’s board, and within ten (10) days following any material updates or material amendments thereto, (A) annual operating budgets (including
projected income statements by quarter), and (B) annual financial projections (on a quarterly basis), in each case as approved by each Loan Party’s board, together with any related business forecasts used in the preparation of such annual
financial projections, in each case in a form of presentation acceptable to Agent and each of the Lenders;
(g) Platform Companies. Concurrently with the delivery of the Compliance Certificate referred to in Section 7.1(d),
(i) a report of any new Investments (by a Loan Party or otherwise) made in Platform Companies, (ii) notification of the acquisition of Collateral consisting of Equity Interests or Instruments by delivery
of a written update to Schedule 1, together with such originals and other documents as required pursuant to the Loan Documents, including Section 7.22 hereof and (iii) to the extent there is (A) any formation of a new Platform Company,
(B) any material amendment, restatement, supplement or other modification of or to any Organizational Document of a Platform Company, or (C) any new material Equity Documents entered into with respect to a Platform Company’s Equity
Interests, any material amendment, restatement, supplement or other modification of or to any such Equity Document, copies of any Organizational Documents, Equity Documents or applicable amendment, restatement, supplement or modification,
as the case may be, together with the monthly financial statements, copies of any loan documents entered into by a Platform Company or any Subsidiary thereof with respect to Indebtedness for borrowed money of a Platform Company or such
Subsidiary (to the extent permitted hereunder), and any material amendment or other modification thereto, in each case to the extent permitted by law or contract. Solely for the purposes of the
deliverables required under this Section 7.1(g), “Platform Company” shall be deemed not to include Compass.
(h) OFAC. Immediate notice if any Loan Party or any Controlled Entity has knowledge that any Loan Party, or any Controlled Entity or Affiliate of any Loan Party or Controlled Entity,
is listed on the OFAC Lists or (a) is convicted on, (b) pleads nolo contendere to, (c) is indicted on, or (d) is arraigned and held over on charges involving money laundering or predicate crimes to
money laundering. This shall only be made by a Loan Party if and to the extent that making such representation does not result in a violation of or conflict with the Council Regulation (EC) No 2271/96 of
22 November 1996 (as amended from time to time) protecting against the effects of the extra-territorial application of legislation adopted by a third country, and actions based thereon or resulting therefrom, section 7 of the German Foreign
Trade Regulation (Außenwirtschaftsverordnung -AWV) and/or any other applicable anti-boycott laws or regulations.
(i) Prepayment Event. As soon as practicable (and in any event, within five (5) Business Days) of the occurrence
of a Prepayment Event or Specified Disposition, a notification thereof, together with a description of such Prepayment Event or Specified Disposition, copies of such documents entered into in connection with the transaction giving rise to
the Prepayment Event or Specified Disposition as Agent may reasonably request and calculations in form reasonably acceptable to Agent of the amount of Net Cash Proceeds, if any, arising from such Prepayment Event;
(j) Legal Action Notice. A prompt report of any legal actions pending or threatened in writing against any
Loan Party or any Controlled Entity that could result in damages or costs to any Loan Party or any Controlled Entity of, individually or in the aggregate, Five Hundred Thousand Dollars ($500,000.00) or more;
(k) Other Financial Information. Other budgets, operating plans and other financial information (including
with respect to Platform Companies) reasonably requested by Agent or any Lender; and
(l) Notification of Event of Default. Immediate notice of the occurrence of any Event of Default.
No Loan Party shall (without the consent of Agent, such consent not to be unreasonably withheld or delayed), make any change in its (a) accounting policies or reporting practices, except as required by GAAP or
(b) fiscal years or fiscal quarters. The fiscal year of each Loan Party shall end on December 31.
The executed Compliance Certificate, and all financial statements required to be delivered pursuant to clauses (a), (b), (c), (d) and (f) shall be sent via e-mail to [***] with a copy to [***], [***] and [***];
provided, that if e-mail is not available or sending such financials statements via e-mail is not possible, they shall be faxed to Agent at: [***], attention Account Manager: ATAI.
Notwithstanding the foregoing, documents required to be delivered under Sections 7.1(a), (b), (c) or (e) (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 Borrower files such documents with the SEC and such documents are publicly available on the SEC’s EDGAR filing system or
any successor thereto, provided, however, for any such documents other than the documents required to be delivered under Sections 7.1(b) and (c), Borrower shall promptly notify Agent in writing (which may be by electronic mail)
of the filing of any such documents with the SEC.
7.2 Management Rights. The Loan Parties shall permit, or use commercially reasonable efforts to cause the Controlled Entities to permit, any representative that Agent or the Lenders
authorizes, including its attorneys and accountants, to inspect the Collateral and examine and make copies and abstracts of the books of account and records of the Loan Parties and Controlled Entities at reasonable times and upon reasonable
notice during normal business hours; provided, however, that so long as no Event of Default has occurred and is continuing, such examinations shall be limited to no more often than once per fiscal year. In addition, any such
representative shall have the right to meet with management and officers of the Loan Parties and Controlled Entities to discuss such books of account and records. In addition, Agent or the Lenders shall be entitled at reasonable times and
intervals to consult with and advise the management and officers of the Loan Parties and Controlled Entities concerning significant business issues affecting the Loan Parties and the Controlled Entities. Such consultations shall not
unreasonably interfere with the Loan Parties’ or Controlled Entities’ business operations. The parties intend that the rights granted Agent and the Lenders shall constitute “management rights” within the meaning of 29 C.F.R. Section
2510.3-101(d)(3)(ii), but that any advice, recommendations or participation by Agent or the Lenders with respect to any business issues shall not be deemed to give Agent or the Lenders, nor be deemed an exercise by Agent or the Lenders of,
control over the Loan Parties’ or Controlled Entities’ management or policies and the Loan Parties shall have no obligation to act upon or follow any such advice or recommendation.
7.3 Further Assurances. Each Loan Party shall from time to time execute, deliver and file, alone or with Agent, any financing statements, security agreements, collateral assignments,
notices, control agreements, promissory notes, Foreign Security Documents or other documents to perfect, give the highest priority to Agent’s Lien on the Collateral or otherwise evidence Agent’s rights herein. Any Loan Party shall from time
to time procure any instruments or documents as may be reasonably requested by Agent, and take all further action that may be necessary, or that Agent may reasonably request, to perfect and protect the Liens granted hereby and thereby. In
addition, and for such purposes only, each Loan Party hereby authorizes Agent to execute and deliver on its behalf and to file such financing statements (including an indication that the financing statement covers “all assets or all personal
property” of Borrower in accordance with Section 9-504 of the UCC), collateral assignments, notices, control agreements, security agreements and other documents without the signature of the Loan Parties either in Agent’s name or in the name
of Agent as agent and attorney-in-fact for the Loan Parties. Each Loan Party shall protect and defend its title to the Collateral and Agent’s Lien thereon against all Persons claiming any interest adverse to such Loan Party or Agent other
than Permitted Liens.
7.4 Indebtedness. No Loan Party shall create, incur, assume, guarantee or be or remain liable with respect to any Indebtedness, or permit any Controlled Entity to do so, other than
Permitted Indebtedness, or prepay any Indebtedness or take any actions which impose on any Loan Party an obligation to prepay any Indebtedness, except for (a) the conversion of Indebtedness into equity securities and the payment of cash in
lieu of fractional shares in connection with such conversion, (b) in connection with refinancing or replacement of Permitted Indebtedness, (c) purchase money Indebtedness pursuant to its then applicable payment schedule, (d) prepayment by any
Subsidiary of (i) inter-company Indebtedness owed by such Subsidiary to any Loan Party, or (ii) if such Subsidiary is not a Loan Party, intercompany Indebtedness owed by such Subsidiary to another Subsidiary that is not a Loan Party or (e) as
otherwise permitted hereunder or approved in writing by Agent.
Notwithstanding anything to the contrary in the foregoing, the issuance of, performance of obligations under (including any payments of interest), and conversion, exercise, repurchase, redemption (including,
for the avoidance of doubt, a required repurchase in connection with the redemption of Permitted Convertible Debt upon satisfaction of a condition related to the stock price of the common stock), settlement or early termination or
cancellation of (whether in whole or in part and including by netting or set-off) (in each case, whether in cash, common stock, following a merger event or other change of the common stock, other securities or property), or the satisfaction
of any condition that would permit or require any of the foregoing, any Permitted Convertible Debt shall not constitute a prepayment of Indebtedness by Parent for the purposes of this Section 7.4; provided that principal payments in cash
(other than cash in lieu of fractional shares) shall only be allowed if the Redemption Conditions are satisfied in respect of such payment and at all times after such payment; provided further that, to the extent both (a) the aggregate amount
of cash payable upon conversion or payment of any Permitted Convertible Debt (excluding any required payment of interest with respect to such Permitted Convertible Debt and excluding any payment of cash in lieu of a fractional share due upon
conversion thereof) exceeds the aggregate principal amount thereof and (b) such conversion or payment does not trigger or correspond to an exercise or early unwind or settlement of a corresponding portion of the Permitted Bond Hedge
Transactions relating to such Permitted Convertible Debt (including, for the avoidance of doubt, the case where there is no Bond Hedge Transaction relating to such Permitted Convertible Debt), the payment of such excess cash shall not be
permitted by the preceding sentence.
Notwithstanding the foregoing, Parent may repurchase, exchange or induce the conversion of Permitted Convertible Debt by delivery of shares of common stock and/or a different series of Permitted Convertible
Debt and/or by payment of cash (in an amount that does not exceed the proceeds received by Parent from the substantially concurrent issuance of common stock and/or Permitted Convertible Debt plus the net cash proceeds, if any, received by
Parent pursuant to the related exercise or early unwind or termination of the related Permitted Bond Hedge Transactions and Permitted Warrant Transactions, if any, pursuant to the immediately following proviso); provided that, substantially
concurrently with, or a commercially reasonable period of time before or after, the related settlement date for the Permitted Convertible Debt that is so repurchased, exchanged or converted, Parent shall exercise or unwind or terminate early
(whether in cash, shares or any combination thereof) the portion of the Permitted Bond Hedge Transactions and Permitted Warrant Transactions, if any, corresponding to such Permitted Convertible Debt that are so repurchased, exchanged or
converted.
7.5 Collateral. Each Loan Party shall at all times keep the Collateral, the Intellectual Property and all other property and assets used in the Loan Parties’ business or in which the
Loan Parties now or hereafter holds any interest free and clear from any Liens whatsoever (except for Permitted Liens), and shall give Agent prompt written notice of any legal process that is reasonably likely to result in damages, expenses
or liabilities in excess of $500,000 affecting the Collateral, the Intellectual Property, such other property and assets, or any Liens thereon, provided however, that the Collateral and such other property and assets may be subject to
Permitted Liens except that there shall be no Liens whatsoever on Intellectual Property (other than Permitted Liens under clauses (iii), (iv), (v), (vii), (x), or (xv) of the definition thereof). No Loan Party shall agree with any Person
other than Agent or the Lenders not to encumber its property other than under (a) this Agreement and the other Loan Documents, (b) any agreements governing any purchase money Liens or capital lease obligations otherwise permitted hereby (in
which case, any prohibition or limitation shall only be effective against the assets financed thereby) and (c) customary restrictions on the assignment of leases, licenses and other agreements. No Loan Party shall enter into or suffer to
exist or become effective any agreement that prohibits or limits the ability of any Loan Party to create, incur, assume or suffer to exist any Lien upon any of its property (including Intellectual Property), whether now owned or hereafter
acquired, to secure its obligations under the Loan Documents to which it is a party other than (a) this Agreement and the other Loan Documents, (b) any agreements governing any purchase money Liens or capital lease obligations otherwise
permitted hereby (in which case, any prohibition or limitation shall only be effective against the assets financed thereby) and (c) customary restrictions on the assignment of leases, licenses and other agreements. Each Loan Party shall
cause the Controlled Entities to protect and defend such Controlled Entity’s title to its material assets from and against all Persons claiming any interest adverse to such Controlled Entity, and each Loan Party shall cause the Controlled
Entities at all times to keep such Controlled Entity’s property and assets free and clear from Liens whatsoever (except for Permitted Liens, provided however, that there shall be no Liens whatsoever on Intellectual Property (other than
Permitted Liens under clauses (iii), (iv), (v), (vii), (x) or (xv) of the definition thereof)), and shall give Agent prompt written notice of any legal process affecting such Controlled Entity’s assets that is reasonably likely to result in
damages, expenses or liabilities in excess of $500,000.
7.6 Investments. No Loan Party shall directly or indirectly acquire or own, or make any Investment in or to any Person, or permit any of the Controlled Entities to do so, other than
Permitted Investments.
7.7 Distributions. No Loan Party shall, nor shall allow any Controlled Entity to, (a) repurchase or redeem any class of shares, stock or other Equity Interest other than pursuant to
employee, director or consultant repurchase plans or other similar agreements, provided, however, in each case the repurchase or redemption price does not exceed the original consideration paid for such stock or Equity Interest, or (b)
declare or pay any cash dividend or make any other cash distribution on any class of stock or other Equity Interest, except that a Controlled Entity may pay dividends or make other distributions to any Loan Party, (c) lend money to any
employees, officers or directors or guarantee the payment of any such loans granted by a third party in excess of $500,000 in the aggregate or (d) waive, release or forgive any Indebtedness owed by any employees, officers or directors in
excess of $500,000 in the aggregate.
Notwithstanding the foregoing, Parent may (A) pay the purchase price of any Permitted Bond Hedge Transaction or (B) settle, unwind or terminate all or any portion of any Permitted Warrant Transaction by (I)
set-off against the concurrent settlement, unwind or other termination of all or any portion of any related Permitted Bond Hedge Transaction or (II) delivery of common stock.
Notwithstanding the foregoing, and for the avoidance of doubt, this Section 7.7 shall not prohibit the conversion by holders of (including any payment upon conversion, whether in cash, common stock or a
combination thereof), or required payment of any principal or premium on (including, for the avoidance of doubt, in respect of a required repurchase in connection with the redemption of Permitted Convertible Debt upon satisfaction of a
condition related to the stock price of the common stock) or required payment of any interest with respect to, any Permitted Convertible Debt in each case, in accordance with the terms of the indenture governing such Permitted Convertible
Debt; provided that principal payments in cash (other than cash in lieu of fractional shares) shall only be allowed if the Redemption Conditions are satisfied in respect of such payment and at all times after such payment; provided further
that, to the extent both (a) the aggregate amount of cash payable upon conversion or payment of any Permitted Convertible Debt (excluding any required payment of interest with respect to such Permitted Convertible Debt and excluding any
payment of cash in lieu of a fractional share due upon conversion thereof) exceeds the aggregate principal amount thereof and (b) such conversion or payment is not offset by an exercise or early unwind or settlement of a corresponding portion
of the Bond Hedge Transactions relating to such Permitted Convertible Debt (including, for the avoidance of doubt, the case where there is no Bond Hedge Transaction relating to such Permitted Convertible Debt), the payment of such excess cash
shall not be permitted by the preceding sentence.
Notwithstanding the foregoing, Parent may repurchase, exchange or induce the conversion of Permitted Convertible Debt by delivery of common stock and/or a different series of Permitted Convertible Debt and/or
by payment of cash (in an amount that does not exceed the proceeds received by Parent from the substantially concurrent issuance of common stock and/or Permitted Convertible Debt plus the net cash proceeds, if any, received by Parent pursuant
to the related exercise or early unwind or termination of the related Permitted Bond Hedge Transactions and Permitted Warrant Transactions, if any, pursuant to the immediately following proviso); provided that, substantially concurrently
with, or a commercially reasonable period of time before or after, the related settlement date for the Permitted Convertible Debt that is so repurchased, exchanged or converted, Parent shall exercise or unwind or terminate early (whether in
cash, shares or any combination thereof) the portion of the Permitted Bond Hedge Transactions and Permitted Warrant Transactions, if any, corresponding to such Permitted Convertible Debt that are so repurchased, exchanged or converted.
7.8 Transfers. Except for Permitted Transfers and Permitted Investments that constitute Permitted Transfers, no Loan Party shall, nor shall allow any Controlled Entity to, voluntarily
or involuntarily transfer, sell, lease, license, lend or in any other manner convey any equitable, beneficial or legal interest (collectively, “Transfer”) in any material portion of its assets.
7.9 Mergers and Consolidations. No Loan Party shall merge or consolidate, or permit any of its Controlled Entities
to merge or consolidate, with or into any other Person (other than (i) Permitted Investments, (ii) Permitted Transfers or (iii) mergers or consolidations of (a) a Subsidiary which is not a Loan Party into another Subsidiary or into a Loan
Party or (b) a Loan Party into another Loan Party). No Borrower shall merge or consolidate with or into any other Person unless the resulting Person is a Borrower.
7.10 Taxes. Each Loan Party shall, and shall cause each of its Controlled Entities to, pay when due all material Taxes of any nature whatsoever now or hereafter imposed or assessed
against any Loan Party, any of the Controlled Entities or the Collateral or upon any Loan Party’s or any Controlled Entity’s ownership, possession, use, operation or disposition thereof or upon any Loan Party’s or any of Controlled Entity’s
rents, receipts or earnings arising therefrom. Each Loan Party shall, and shall cause each of Controlled Entity to, accurately file on or before the due date therefor (taking into account proper extensions) all federal and state income Tax
returns and other material Tax returns required to be filed. Notwithstanding the foregoing, any Loan Party or Controlled Entity may contest, in good faith and by appropriate proceedings diligently conducted, Taxes for which such Loan Party
or Controlled Entity maintain adequate reserves in accordance with GAAP.
7.11 Corporate Changes. No Loan Party shall change, nor shall any Loan Party permit any Controlled Entity to change, its corporate name, legal form or jurisdiction of formation without
twenty (20) days’ prior written notice to Agent. No Loan Party shall suffer a Change in Control. No Loan Party shall relocate its chief executive office or its principal place of business unless: (i) it has provided prior written notice to
Agent; and (ii) such relocation shall be within the continental United States of America or Germany. No Loan Party shall modify its Organizational Documents in a manner which could be expected to be materially adverse to the interests of the
Lenders or Agent without the Agent’s prior written consent. No Loan Party shall relocate any item of Collateral (other than (w) relocations of drug products and related materials in the ordinary course of business, (x) sales of Inventory in
the ordinary course of business, (y) relocations of Equipment having an aggregate value of up to $500,000 in any fiscal year, and (z) relocations of Collateral from a location described on Exhibit B to another location described on Exhibit B)
unless (i) such relocation is within the continental United States of America or Germany and (ii) if such relocation is to a third party bailee, it has delivered a bailee agreement in form and substance reasonably acceptable to Agent. The
Loan Parties shall use commercially reasonable efforts to execute and deliver a landlord waiver and subordination agreement in a form and substance reasonably satisfactory to Agent with respect to (i) its headquarters and (ii) any other
location described on Exhibit B where the value of the Collateral at such location is in excess of $500,000.
7.12 Deposit Accounts. No Loan Party shall maintain any Deposit Accounts, or accounts holding Investment Property, except with respect to which (i) Agent has an Account Control Agreement
or (ii) the Foreign Deposit Account Pledge Requirement has been satisfied. Notwithstanding the foregoing, Loan Parties shall not be required to obtain an Account Control Agreement or satisfy the Foreign Deposit Account Pledge Requirement
with respect to Excluded Accounts.
7.13 Joinder. Borrower shall notify Agent of each Subsidiary formed or acquired subsequent to the Closing Date and, within 15 days of formation or acquisition, to the extent such
Subsidiary is a Non-Operating Subsidiary, shall cause such Non-Operating Subsidiary to execute and deliver to Agent a Joinder Agreement and such other documents and instruments as shall be reasonably requested by Agent to effectuate the
transactions contemplated by such Joinder Agreement, in each case in form and substance reasonably acceptable to Agent; provided, however, that such joinder shall not be required if the Parent determines in its reasonable discretion (and such
determination has been approved by Agent in its reasonable discretion) that the benefit from the entry into such Joinder Agreement is outweighed by the undue burden and expense to Borrower (including material adverse tax consequences to
Borrower).
7.14 Platform Companies.
(a) No Loan Party or Controlled Entity shall suffer or permit the Organizational Documents or other operating documents of any Platform Company (or any Subsidiary thereof), or any of
its or their Equity Documents to contain any provision, unless waived by Agent and the Lenders, which would restrict, delay or condition the grant of the security interest in the Pledged Collateral as set forth in this Agreement or any other
Loan Document or the exercise of any remedy with respect to the Pledged Collateral, including, without limitation, the exercise of voting rights by Agent or the disposition of the Pledged Collateral after the occurrence and during the
continuation of an Event of Default.
(b) No Loan Party or Controlled Entity shall suffer or permit a Material Platform Company Change in Control, unless in connection with clause (vi) of the definition of Permitted
Transfer and subject to Section 2.5(b).
(c) No Loan Party shall suffer any Investments in Equity Interests of a Platform Company to be held, directly or indirectly by a Subsidiary of Parent that is not a Loan Party.
(d) To the extent not prohibited by this Agreement and the other Loan Documents, the Loan Parties shall maintain funding and treasury practices for financing Controlled Entities and
Non-Controlled Entities consistent in all material respects with the Business Strategy. No Loan Party or Controlled Entity shall transfer or invest excess amounts of Cash into Platform Companies outside the ordinary course of business or in
conflict with these provisions.
7.15 Use of Proceeds. Each Borrower agrees that the proceeds of the Loans shall be used solely to pay related fees and expenses in connection with this Agreement and for working
capital and general business purposes, including Investments in Platform Companies and to finance the consideration associated with asset in-licensing and acquisition transactions. The proceeds of the
Loans will not be used in violation of Anti-Corruption Laws or applicable Sanctions.
7.16 Cash Management and Limitation on Cash Outside of the United States. At all times from the Closing Date, the Loan Parties shall maintain Qualified Cash in an amount equal to or
greater than the lesser of (i) 100% of the aggregate outstanding Secured Obligations or (ii) 70% of the consolidated Cash of the Loan Parties and the Controlled Entities. In no event shall the aggregate amount of Cash that can be held by the
Specified UK Subsidiary, the Specified AU Subsidiary and AVF LLC exceed $750,000 in the aggregate at any time.
7.17 Compliance with Laws.
(a) Each Loan Party shall maintain, and shall cause the Controlled Entities to maintain, compliance in all material respects with all applicable laws, rules or regulations (including
any law, rule or regulation with respect to the making or brokering of loans or financial accommodations), and shall, or cause the Controlled Entities to, obtain and maintain all required Governmental Approvals.
(b) No Loan Party shall, nor shall any Loan Party permit any Controlled Entity or Affiliate to, directly or indirectly, knowingly enter into any documents, instruments, agreements or
contracts with any Person listed on the OFAC Lists. No Loan Party shall, nor shall any Loan Party permit any Controlled Entity or Affiliate to, directly or indirectly, (i) conduct any business or engage in any transaction or dealing with any
Blocked Person, including, without limitation, the making or receiving of any contribution of funds, goods or services to or for the benefit of any Blocked Person, (ii) deal in, or otherwise engage in any transaction relating to, any property
or interests in property blocked pursuant to Executive Order No. 13224 or any similar executive order or other Anti‑Terrorism Law, or (iii) engage in or conspire to engage in any transaction that evades or avoids, or has the purpose of
evading or avoiding, or attempts to violate, any of the prohibitions set forth in Executive Order No. 13224 or other Anti‑Terrorism Law. This shall only be made by a Loan Party if and to the extent
that making such representation does not result in a violation of or conflict with the Council Regulation (EC) No 2271/96 of 22 November 1996 (as amended from time to time) protecting against the effects of the extra-territorial application
of legislation adopted by a third country, and actions based thereon or resulting therefrom, section 7 of the German Foreign Trade Regulation (Außenwirtschaftsverordnung -AWV) and/or any other
applicable anti-boycott laws or regulations.
(c) Each Loan Party has on behalf of itself and on behalf of each Controlled Entity implemented and maintains in effect policies and procedures designed to ensure compliance by such
Loan Party, the Controlled Entities and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and each Loan Party, the Controlled Entities and their respective officers and employees
and to the knowledge of such Loan Party’s its directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects.
(d) No Loan Party on behalf of itself and on behalf of the Controlled Entities or any of their respective directors, officers or employees, or to the knowledge of such Loan Party on
behalf of itself and on behalf of any Controlled Entity, any agent for such Loan Party or Controlled Entity, that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person. No
Loan, use of proceeds or other transaction contemplated by this Agreement will violate Anti-Corruption Laws or applicable Sanctions.
7.18 Platform Company Transaction Documents. Notwithstanding anything to the contrary herein, Loan Parties shall not be required to violate or limit any rights under any provision of
any Platform Company Transaction Document and may freely fund any Platform Company pursuant to the terms of the Platform Company Transaction Documents, in a manner generally consistent with the Business
Strategy. No Loan Party shall, nor shall any Loan Party permit any Controlled Entity, to amend, restate, supplement or otherwise modify the terms of any Platform Company Transaction Documents if the effect of such change could be
expected to be materially adverse to the interests of Agent or Lender, without the prior written consent of the Agent.
7.19 Financial Covenant. Beginning on the later of (i) JulyMay 1, 20232024 and (ii) the date on which the aggregate outstanding Advances are equal to or greater than $40,000,00030,000,000, Borrower shall at all such applicable times maintain Qualified Cash in an amount no less than 33% of the aggregate outstanding principal amount of Term Loan
Advances plus the Qualified Cash A/P Amount; provided that the foregoing financial covenant in this Section 7.19 shall not apply on any day on which the Parent has maintained its Market Capitalization
in a minimum amount of $600,000,000550,000,000 for a
period of at least ten (10) consecutive Business Days prior to such day of measurement (“Minimum Market Capitalization Requirement”) (for the avoidance of doubt, the Minimum Market Capitalization Requirement shall be tested on a daily basis,
and if the Minimum Market Capitalization Requirement is not satisfied as of any day, then Loan Parties shall demonstrate compliance with the financial covenant set forth in this Section 7.19 as of such day).
7.20 Intellectual Property. Each Loan Party shall on behalf of itself and on behalf of each Controlled Entity (i) protect, defend and maintain the validity and enforceability of its
material Intellectual Property; (ii) promptly advise Agent in writing of material infringements of its material Intellectual Property; and (iii) not allow any Intellectual Property material to Loan Parties’ or Controlled Entities’ business to
be abandoned, forfeited or dedicated to the public without Agent’s written consent.
7.21 Transactions with Affiliates. Each Loan Party shall not and shall not permit any Controlled Entity to, directly or indirectly, enter into or permit to exist any transaction of any
kind with any Affiliate of such Loan Party or such Controlled Entity on terms that are less favorable to such Loan Party or such Controlled Entity, as the case may be, than those that might be obtained in an arm’s length transaction from a
Person who is not an Affiliate of such Loan Party or such Controlled Entity other than (i) Permitted Investments, (ii) Permitted Transfers, (iii) reasonable and customary fees paid to board members and (iv) board-approved compensation
arrangements for officers and other employees.
7.22 Pledged Collateral. Any Loan Party shall, (a) at such Loan Party’s expense, promptly execute, acknowledge and deliver all such instruments and take all such actions as Agent from
time to time may reasonably request in order to ensure to Agent the benefits of the pledge intended to be created by Section 3.3, shall maintain, preserve and defend the title to the Pledged Collateral and the Lien of the Agent
thereon against the claim of any other Person (other than Permitted Liens); (b) with respect to any Equity Interests of an issuer owned by such Loan Party constituting limited liability company membership interests, shall, to the extent it
controls such issuer, cause Article 8 of the Uniform Commercial Code of such issuer’s jurisdiction of organization to govern the Equity Interests of such issuer, such Equity Interests to be certificated or otherwise evidenced by an
instrument, and shall deliver such certificate or instrument, together with a duly executed transfer power or other instrument of transfer (in form and substance reasonably satisfactory to the Agent) executed in blank, promptly (but in any
event within three (3) Business Days after receipt thereof by Loan Party) to the Agent; (c) upon acquiring any new Equity Interests constituting Pledged Collateral or Instruments constituting Collateral, within five (5) Business Days (i)
deliver to Agent an updated Schedule 1 hereto, in form reasonably satisfactory to Agent, identifying such additional Equity Interests, which shall be attached to this Agreement, (ii) either deliver or otherwise cause the transfer of
such additional Equity Interests or Instruments (including any certificates and duly executed transfer powers or other instruments of transfer executed in blank and in form and substance satisfactory to Agent) to Agent as required under this
Agreement or any Loan Document or enter into a control agreement in favor of Agent in form acceptable to Agent with respect thereto, provided that with respect to Equity Interests of a Loan Party other than Parent or Controlled Entity, to the
extent the Organizational Documents of such Loan Party or Controlled Entity do not provide for the issuance of physical stock certificates and as long as no physical stock certificates are issued, Loan Party’s or Controlled Entity’s shall
not be required to deliver stock certificates, stock powers or control agreements, and (iii) to the extent related to an Investment in a new Platform Company, deliver an acknowledgement, consent and waiver in substantially the form delivered
by the Platform Companies as of the Closing Date. No Loan Party shall, nor shall any Loan Party permit any Controlled Entity, enter into any agreement restricting its ability to vote the Equity Interests or assigning or otherwise
transferring or restricting its ability to vote the Equity Interests owned by such Loan Party or Controlled Entity other than pursuant to any Loan Document or in connection with voting agreements entered into by holders of Equity Interests in
each Platform Company on customary terms for venture capital financings, in each case, which are not designed to impair the pledge or Agent’s exercise of remedies with respect to Pledged Collateral.
7.23 Introductions. When any Non-Controlled Entity is considering incurring Indebtedness for borrowed money, Loan Parties shall use commercially reasonable efforts to introduce a
representative of Agent to the chief financial officer or other appropriate officer of such Non-Controlled Entity to allow Agent’s representative to present possible lending options to such Non-Controlled Entity.
7.24 Specified UK Subsidiary and Specified AU Subsidiary. If, at any time, the Specified UK Subsidiary and the Specified AU Subsidiary, in the aggregate, (a) have revenues attributable
to them in excess of 5% of Parent’s consolidated total revenue as reflected in the financial statements delivered pursuant to Sections 7.1(b) or 7.1(c) or (b) have total assets (including Investments) the fair market value of which is more
than 5.0% of Parent’s consolidated total assets as reflected in the financial statements delivered pursuant to Sections 7.1(b) or 7.1(c), then within twenty (20) days of the occurrence thereof, the Loan Parties shall cause one or both of the
Specified UK Subsidiary or the Specified AU Subsidiary to execute and deliver to Agent a Joinder Agreement and such other documents and instruments as shall be reasonably requested by Agent to effectuate the transactions contemplated by such
Joinder Agreement, in each case, in form and substance reasonably acceptable to Agent, and following the delivery and acceptance thereof by Agent, such Subsidiary shall be deemed to be a “Loan Party” for all purposes hereunder (such that, if
only one of the Specified UK Subsidiary and Specified AU Subsidiary becomes a Loan Party hereunder pursuant to the foregoing, then the Specified UK Subsidiary or the Specified AU Subsidiary, as the case may be, that is not a Loan Party shall
not (a) have revenues attributable to it in excess of 5% of Parent’s consolidated total revenue as reflected in the financial statements delivered pursuant to Sections 7.1(b) or 7.1(c) or (b) have total assets (including Investments) the fair
market value of which is more than 5.0% of Parent’s consolidated total assets as reflected in the financial statements delivered pursuant to Sections 7.1(b) or 7.1(c)); provided that the Specified UK Subsidiary and the Specified AU Subsidiary
shall not be required to execute such Joinder Agreement and any other documents if such execution is reasonably likely to result in material adverse tax consequences to Parent as reasonably determined by Parent and approved by Agent in its
reasonable discretion. Notwithstanding anything to the contrary herein, in no event shall the Specified UK Subsidiary and the Specified AU Subsidiary own or otherwise maintain (i) whether through formation or acquisition, any subsidiary or
otherwise any Equity Interests in any Person or (ii) any intellectual property (including through licensing).
7.25 Indirect RDTI Subsidiaries. No Loan Party shall permit any Indirect RDTI Subsidiary to be a Platform Company unless such Loan Party causes the Equity Interests of Indirect RDTI
Subsidiary to be pledged as Collateral pursuant to documentation in form and substance reasonably satisfactory to the Agent.
SECTION 8. RESERVED
SECTION 9. EVENTS OF DEFAULT
The occurrence of any one or more of the following events shall be an Event of Default:
9.1 Payments. Any Loan Party fails to pay any amount due under this Agreement or any of the other Loan Documents on the due date; provided, however, that an Event of Default shall not
occur on account of a failure to pay due solely to an administrative or operational error of Agent or the Lenders or any Loan Party’s bank if such Loan Party had the funds to make the payment when due and makes the payment within three (3)
Business Days following such Loan Party’s knowledge of such failure to pay; or
9.2 Covenants. Any Loan Party breaches or defaults in the performance of any covenant or Secured Obligation under this Agreement, or any of the other Loan Documents, and (a) with
respect to a default under any covenant under this Agreement (other than under Sections 4.4, 6, 7.1, 7.4, 7.5, 7.6, 7.7, 7.8, 7.9, 7.10, 7.11, 7.12, 7.13, 7.14, 7.15, 7.16, 7.17, 7.18, 7.19, 7.20, 7.21, 7.22 and 7.24) or any other Loan
Document, Agent and the Lenders, such default continues for more than fifteen (15) days after the earlier of the date on which (i) Agent or the Lenders has given notice of such default to the Loan Parties and (ii) any Loan Party has actual
knowledge of such default or (b) with respect to a default under any of Sections 4.4, 6, 7.1, 7.4, 7.5, 7.6, 7.7, 7.8, 7.9, 7.10, 7.11, 7.12, 7.13, 7.14, 7.15, 7.16, 7.17, 7.18, 7.19, 7.20, 7.21, 7.22 and 7.24 the occurrence of such default; or
9.3 Material Adverse Effect. A circumstance has occurred that would reasonably be expected to have a Material Adverse Effect; or
9.4 Representations. Any representation or warranty made by any Loan Party or by any Loan Party on behalf of any Controlled Entity in any Loan Document shall have been false or
misleading in any material respect when made or when deemed made; or
9.5 Insolvency. Loan Parties or the Material Platform Companies, (A) (i) shall be unable to pay its debts (including trade debts) as they become due, or be unable to pay or perform
under the Loan Documents; (ii) shall fail to maintain assets with a fair saleable value that exceeds the fair value of such Loan Party’s or Material Platform Company’s liabilities, (iii) shall maintain an unreasonably small amount of capital
with which to conduct its business; (iv) shall otherwise become insolvent, or (v) in relation to a Loan Party or Controlled Entity incorporated in Germany, is unable to pay its debts as they fall due (zahlungsunfähig) within the meaning of
section 17 of the German Insolvency Code (Insolvenzordnung) or is overindebted within the meaning of section 19 of the German Insolvency Code (Insolvenzordnung); or (B) (i) shall make an assignment for the benefit of creditors; or (ii) shall file a voluntary petition in bankruptcy; or (iii) shall file any petition, answer, or document seeking for itself any
reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any present or future statute, law or regulation pertinent to such circumstances; or (iv) shall seek or consent to or acquiesce in the
appointment of any trustee, receiver, or liquidator of a Loan Party or a Material Platform Company or of all or any substantial part (i.e., 33-1/3% or more) of the assets or property of a Loan Party or Material Platform Company; or (v) shall
cease operations of its business as its business has normally been conducted, or terminate substantially all of its employees; or (vi) a Loan Party, Material Platform Company or their respective board of directors or majority shareholders
shall take any action initiating any of the foregoing actions described in clauses (i) through (vi); or (C) either (i) thirty (30) days shall have expired after the commencement of an involuntary action against a Loan Party or Material
Platform Company seeking reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any present or future statute, law or regulation, without such action being dismissed or all orders or
proceedings thereunder affecting the operations or the business of a Loan Party or Material Platform Company being stayed; or (ii) a stay of any such order or proceedings shall thereafter be set aside and the action setting it aside shall not
be timely appealed; or (iii) a Loan Party or Material Platform Company shall file any answer admitting or not contesting the material allegations of a petition filed against such Loan Party or Material Platform Company in any such
proceedings; or (iv) the court in which such proceedings are pending shall enter a decree or order granting the relief sought in any such proceedings; or (v) thirty (30) days shall have expired after the appointment, without the consent or
acquiescence of the applicable Loan Party or Material Platform Company, of any trustee, receiver or liquidator of a Loan Party or Material Platform Company or of all or any substantial part of the properties of such Loan Party or Material
Platform Company without such appointment being vacated; or
9.6 Attachments; Judgments. Any portion of the assets of the Loan Parties or Material Platform Companies is attached or seized, or a levy is filed against any such assets, or a
judgment or judgments is/are entered for the payment of money (not covered by independent third party insurance as to which liability has not been rejected by such insurance carrier), individually or in the aggregate, of at least $500,000,
and such judgment remains unsatisfied, unvacated, or unstayed for a period of twenty (20) days after the entry thereof, or any Loan Party or Material Platform Companies is enjoined or in any way prevented by court order from conducting any
material part of its business; or
9.7 Other Obligations. (i) The occurrence of any default under any agreement or obligation of any Loan Party or Material Platform Company involving any Indebtedness in excess of
$500,000, or any other material agreement or obligation if a Material Adverse Effect would reasonably be expected to result from such default, or (ii) any “fundamental change” (howsoever defined, but excluding any “make-whole fundamental
change”) occurs under the indenture governing any Permitted Convertible Debt or (iii) the early termination of any Permitted Bond Hedge Transaction or Permitted Warrant Transaction by the counterparty thereto, due to a breach or default by
any Loan Party or Material Platform Company (except to the extent such early termination requires only the issuance of Equity Interests by Parent), if such termination would require any Loan Party or Material Platform Company to pay in excess
of $500,000; or
9.8 Governmental Approvals. Any Governmental Approval shall have been revoked, rescinded, suspended, modified in an
adverse manner or not renewed for a full term, where such revocation, rescission, suspension, modification or non-renewal has, or would reasonably be expected to have, a Material Adverse Effect.
SECTION 10. REMEDIES
10.1 General. Upon and during the continuance of any one or more Events of Default, Agent may, and at the direction of the Required Lenders shall, accelerate and demand payment of all
or any part of the Secured Obligations together with a Prepayment Charge and declare them to be immediately due and payable (provided, that upon the occurrence of an Event of Default of the type described in Section 9.5, all of the Secured
Obligations (including, without limitation, the Prepayment Charge and the End of Term Charge) shall automatically be accelerated and made due and payable, in each case without any further notice or act). Each
Loan Party hereby irrevocably appoints Agent as its lawful attorney-in-fact to: (a) exercisable following the occurrence of an Event of Default, (i) sign such Loan Party’s name on any invoice or bill of lading for any account or drafts
against account debtors; (ii) demand, collect, sue, and give releases to any account debtor for monies due, settle and adjust disputes and claims about the accounts directly with account debtors, and compromise, prosecute, or defend any
action, claim, case, or proceeding about any Collateral (including filing a claim or voting a claim in any bankruptcy case in Agent’s or such Loan Party’s name, as Agent may elect); (iii) make, settle, and adjust all claims under such Loan
Party’s insurance policies; (iv) pay, contest or settle any Lien, charge, encumbrance, security interest, or other claim in or to the Collateral, or any judgment based thereon, or otherwise take any action to terminate or discharge the
same; (v) transfer the Collateral into the name of Agent or a third party as the UCC permits; and (vi) receive, open and dispose of mail addressed to a Loan Party; and (b) regardless of whether an Event of Default has occurred, (i) endorse
a Loan Party’s name on any checks, payment instruments, or other forms of payment or security; and (ii) notify all account debtors to pay Agent directly. Each Loan Party hereby appoints Agent as its lawful attorney-in-fact to sign such
Loan Party’s name on any documents necessary to perfect or continue the perfection of Agent’s security interest in the Collateral regardless of whether an Event of Default has occurred until all Secured Obligations have been satisfied in
full and the Loan Documents have been terminated. Agent’s foregoing appointment as such Loan Party’s attorney in fact, and all of Agent’s rights and powers, coupled with an interest, are irrevocable until all Secured Obligations have been
fully repaid and performed and the Loan Documents have been terminated. Agent may, and at the direction of the Required Lenders shall, exercise all rights and remedies with respect to the Collateral under the Loan Documents or
otherwise available to it under the UCC and other applicable law, including the right to release, hold, sell, lease, liquidate, collect, realize upon, or otherwise dispose of all or any part of the Collateral and the right to occupy, utilize,
process and commingle the Collateral. All Agent’s rights and remedies shall be cumulative and not exclusive.
10.2 Collection; Foreclosure. Upon the occurrence and during the continuance of any Event of Default, Agent may, and at the direction of the Required Lenders shall, at any time or
from time to time, apply, collect, liquidate, sell in one or more sales, lease or otherwise dispose of, any or all of the Collateral, in its then condition or following any commercially reasonable preparation or processing, in such order as
Agent may elect. Any such sale may be made either at public or private sale at its place of business or elsewhere. Each Loan Party agrees that any such public or private sale may occur upon ten (10) calendar days’ prior written notice to
such Loan Party. Agent may require any Loan Party to assemble the Collateral and make it available to Agent at a place designated by Agent that is reasonably convenient to Agent and such Loan Party. The proceeds of any sale, disposition or
other realization upon all or any part of the Collateral shall be applied by Agent in the following order of priorities:
First, to Agent and the Lenders in an amount sufficient to pay in full Agent’s and the Lenders’ reasonable costs and professionals’ and advisors’ fees and expenses as described in Section 11.12;
Second, to the Lenders in an amount equal to the then unpaid amount of the Secured Obligations (including principal, interest, and the Default Rate interest), in such order and priority as Agent may choose in
its sole discretion; and
Finally, after the full and final payment in Cash of all of the Secured Obligations (other than inchoate obligations), to any creditor holding a junior Lien on the Collateral, or to the Loan Parties or their
representatives or as a court of competent jurisdiction may direct.
Agent shall be deemed to have acted reasonably in the custody, preservation and disposition of any of the Collateral if it complies with the obligations of a secured party under the UCC.
10.3 No Waiver. Agent shall be under no obligation to marshal any of the Collateral for the benefit of the Loan Parties or any other Person, and each Loan Party expressly waives all
rights, if any, to require Agent to marshal any Collateral.
10.4 Pledged Collateral. Upon the occurrence and during the continuation of an Event of Default, (a) at Agent’s election and upon notice to the applicable Loan Party, Agent may vote
any Equity Interests constituting Pledged Collateral (whether or not the same shall have been transferred into its name or the name of its nominee or nominees) for any lawful purpose, including, without limitation, for the liquidation of the
assets of the issuer thereof, and give all consents, waivers and ratifications in respect of such Equity Interests and otherwise act with respect thereto as though it were the outright owner thereof (hereby irrevocably constituting and
appointing Agent the proxy and attorney-in-fact of such Loan Party, with full power of substitution, to do so); (b) Agent may demand, sue for, collect or make any compromise or settlement Agent deems suitable in respect of any Equity
Interests constituting Pledged Collateral; (c) Agent may sell, resell, assign and deliver, or otherwise dispose of any or all of the Pledged Collateral, for cash or credit or both and upon such terms at such place or places, at such time or
times and to such entities or other persons as Agent deems expedient, all without demand for performance by any Loan Party or any notice or advertisement whatsoever except as expressly provided herein or as may otherwise be required by law;
(d) Agent may cause all or any part of the Pledged Collateral to be transferred into its name or the name of its nominee or nominees; and (e) at Agent’s election and upon notice thereof to the applicable Loan Party, Agent may exercise all
membership or partnership, as applicable, rights, powers and privileges to the same extent as the applicable Loan Party is entitled to exercise such rights, powers and privileges. Agent may enforce its rights hereunder without any other
notice and without compliance with any other condition precedent now or hereunder imposed by statute, rule of law or otherwise (all of which are hereby expressly waived by each Loan Party, to the fullest extent permitted by law). Each Loan
Party recognizes that the Collateral Agent may be unable to effect a public sale or other disposition of its Equity Interests by reason of certain prohibitions contained in securities laws and other applicable laws, but may be compelled to
resort to one or more private sales thereof to a restricted group of purchasers. Each Loan Party agrees that any such private sales may be at prices and other terms less favorable to the seller than if sold at public sales and that such
private sales shall not by reason thereof be deemed not to have been made in a commercially reasonable manner. Agent shall be under no obligation to delay a sale of any of the Pledged Collateral for the period of time necessary to permit the
issuer of Equity Interests to register such securities for public sale under securities laws or other applicable laws, even if such issuer would agree to do so. In connection with the sale of Pledged Collateral by Agent during the
continuation of an Event of Default, each Loan Party agrees to use its commercially reasonable efforts to cause each issuer of the Equity Interests contemplated to be sold, to execute and deliver, and cause the directors and officers of such
issuer to execute and deliver, all at such Loan Party’s expense, all such instruments and documents, and to do or cause to be done all such other acts and things as may be necessary or, in the reasonable opinion of Agent, advisable to exempt
such Equity Interests from registration under the provisions of applicable laws, and to make all amendments to such instruments and documents which, in the opinion of Agent, are necessary or advisable, all in conformity with the requirements
of applicable laws and the rules and regulations of the Securities and Exchange Commission applicable thereto.
10.5 Cumulative Remedies. The rights, powers and remedies of Agent hereunder shall be in addition to all rights, powers and remedies given by statute or rule of law and are
cumulative. The exercise of any one or more of the rights, powers and remedies provided herein shall not be construed as a waiver of or election of remedies with respect to any other rights, powers and remedies of Agent.
10.6 German Security Documents. Each Secured Party (other than the Collateral Agent) hereby appoints the Collateral Agent as trustee (Treuhänder)
and administrator for the purpose of accepting and administering the German Security Documents for and on behalf of the Secured Parties and the Collateral Agent hereby accepts such appointment on the terms and subject to the conditions set
out in this Section 10.5. The Collateral Agent shall (i) in case of non-accessory (nicht akzessorische) security rights created under the German Security Documents, hold and administer and, as the
case may be, enforce such Liens and/or Collateral in its own name, but as trustee (Treuhänder) for the account of the Secured Parties; and (ii) in case of accessory (akzessorische)
security rights created by way of pledge or other accessory instruments under the German Security Documents, administer and, as the case may be, enforce any and all Liens and/or Collateral as agent in the name of, and for and on behalf of,
the Secured Parties, or in its own name in respect of any Collateral Agent Parallel Debt Claim for the account of the Secured Parties. Each Secured Party (other than the Collateral Agent) hereby authorizes the Collateral Agent (whether or
not by or through employees or agents) (i) to exercise such rights, remedies, powers and discretions as are specifically delegated to or conferred upon the Collateral Agent under the German Security Documents together with such powers and
discretions as are reasonably incidental thereto, and (ii) to take such action on its behalf as may from time to time be authorized under or in connection with the German Security Documents. By accepting the benefits of the Liens and/or
Collateral, each Person to whom a Secured Obligation is owed shall be deemed to have appointed the Collateral Agent as its agent and agreed to be bound by the German Security Documents as a Secured Party.
With respect to the German Security Documents and the Collateral granted under any such German Security Document, each Secured Party (other than the Collateral Agent) (including any future Lender or future
other Secured Party) upon becoming a party to the Loan Documents) hereby authorizes the Collateral Agent (whether or not by or through employees or agents) to execute for and on its behalf any and all German Security Documents to which it is
a party and to accept as its attorney-in-fact (Stellvertreter) any pledge or other creation of any accessory right made to any such Lender (and, if applicable, each such other Secured Party) in
relation to this Agreement under the German Security Documents. Each Secured Party (other than the Collateral Agent) acknowledges and agrees that the Collateral Agent will be exempted to the extent legally possible from the restrictions of
section 181 of the German Civil Code and may delegate its power (including the release from the restrictions of section 181 of the German Civil Code) by way of granting a substitute power of attorney. The Collateral Agent may take such action
(including, without limitation, the exercise of all rights, discretions or powers and the granting of consents or releases or the engagement of a notary for execution of any documents required in notarial form) or, as the case may be, refrain
from taking such action under or pursuant to the German Security Documents as all Lenders may specifically direct the Collateral Agent in writing from time to time.
Notwithstanding anything to the contrary contained herein, the Parties hereto acknowledge and agree that any resignation by Collateral Agent shall not be effective with respect to its rights and obligations
under any Collateral Agent Parallel Debt Claim or the Collateral which secures such Collateral Agent Parallel Debt Claim until such rights and obligations have been assigned to, and assumed by, the successor Collateral Agent. The retiring
Collateral Agent will reasonably cooperate in assigning its rights under any Collateral Agent Parallel Debt Claim to any such successor Collateral Agent and will reasonably cooperate in transferring all rights under any Collateral governed by
German law to such successor Collateral Agent.
10.7 Parallel Debt Undertaking. For purposes of (i) taking security in, or subject to the laws of, Germany and (ii) ensuring the continued validity of such security, each Secured Party
and each Loan Party agrees:
(a) Notwithstanding any other provision of this Agreement or any Loan Document, each Loan Party hereby irrevocably and unconditionally agrees to pay to Collateral Agent, as a
creditor in its own right and not as a representative of the Secured Parties, an amount (the “Collateral Agent Parallel Debt Claim”) equal to each Corresponding Obligation owed by such Loan Party by itself under the Loan Documents as and when
such Corresponding Obligation is due and payable under this Agreement or any other Loan Document or would be due and payable but for any discharge resulting from any failure of a Secured Party to take appropriate steps, in insolvency or
similar proceedings affecting such Loan Party, to preserve its entitlement to be paid such Corresponding Obligation. Each Collateral Agent Parallel Debt Claim will be payable in the currency or currencies of the relevant Corresponding
Obligations.
(b) The Collateral Agent shall have its own independent right to demand and enforce payment of the Collateral Agent Parallel Debt Claim from a Loan Party, irrespective of any
discharge of such Loan Party’s obligation to pay the Collateral Agent Parallel Debt Claim resulting from failure by Collateral Agent to take appropriate steps, in insolvency or similar proceedings affecting such Loan Party, to preserve its
entitlement to be paid such Collateral Agent Parallel Debt Claim. The Collateral Agent’s right to enforce the Collateral Agent Parallel Debt Claim includes, without limitation, the exercise of any remedy available to the Collateral Agent
under this Agreement or any other Loan Document, in law or in equity.
(c) Notwithstanding anything to the contrary contained herein, (i) any amount due and payable by a Loan Party to Collateral Agent in respect of the Collateral Agent Parallel Debt Claim
shall be reduced if and to the extent the Lenders (and, if applicable, each other Secured Party) shall have irrevocably received payment in full of the corresponding amount in respect of the Corresponding Obligations; (ii) any amount due and
payable by a Loan Party to a Lender (and, if applicable, each other Secured Party) in respect of a Corresponding Obligation shall be reduced if and to the extent that Collateral Agent has irrevocably received payment in full of the
corresponding amount in respect of Collateral Agent Parallel Debt Claim; (iii) the aggregate amount of Collateral Agent Parallel Debt Claims shall not exceed the aggregate amount of the Corresponding Obligations at any time.
(d) Subject to the limitation set forth in clause (c) above, the rights of the Lenders (and, if applicable, each other Secured Party) to demand, receive and enforce payment
of amounts payable by any Loan Party in respect of the Corresponding Obligations are several, separate and independent from, and without prejudice to, the rights of the Collateral Agent to demand, receive and enforce payment of the Collateral
Agent Parallel Debt Claim in its own name.
(e) Each Lender (and, if applicable, each other Secured Party) shall, at the request of the Collateral Agent, perform any act required in connection with the enforcement of any
Collateral Agent Parallel Debt Claim, including, without limitation, joining in any legal proceedings in respect of Collateral Agent Parallel Debt Claim or the German Security Documents.
(f) Each Loan Party hereby irrevocably and unconditionally waives any right it may have to require a Secured Party (other than the Collateral Agent) to join with the Collateral Agent
in any legal proceedings as co-claimant with Collateral Agent in respect of any Collateral Agent Parallel Debt Claim or the Collateral granted under any German Security Document.
SECTION 11. MISCELLANEOUS
11.1 Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of
this Agreement shall be prohibited by or invalid under such law, such provision shall be ineffective only to the extent and duration of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining
provisions of this Agreement.
11.2 Notice. Except as otherwise provided herein, any notice, demand, request, consent, approval, declaration, service of process or other communication that is required, contemplated,
or permitted under the Loan Documents or with respect to the subject matter hereof shall be in writing, and shall be deemed to have been validly served, given, delivered, and received upon the earlier of: (i) the day of transmission by
electronic mail or hand delivery or delivery by an overnight express service or overnight mail delivery service; or (ii) the third calendar day after deposit in the United States of America mails, with proper first class postage prepaid, in
each case addressed to the party to be notified as follows:
(a) If to Agent:
HERCULES CAPITAL, INC.
Legal Department
Attention: Chief Legal Officer and Janice Bourque and, Mike Dutra and Michael Bowden
400 Hamilton Avenue, Suite 310
Palo Alto, CA 94301
email: [***]
Telephone: [***]
(b) If to the Lenders:
HERCULES CAPITAL, INC.
Legal Department
Attention: Chief Legal Officer and Janice Bourque and, Mike Dutra and Michael Bowden
400 Hamilton Avenue, Suite 310
Palo Alto, CA 94301
email: [***]
Telephone: [***]
(c) If to any Loan Party:
ATAI Life Sciences B.V.
Wallstraße 16, 10179
Berlin, Germany
Attention: Stephen Bardin, Chief Financial Officer, and Ryan Barrett, General Counsel
Email: [***]
Telephone: [***]
or to such other address as each party may designate for itself by like notice.
11.3 Entire Agreement; Amendments.
(a) This Agreement and the other Loan Documents constitute the entire agreement and understanding of the parties hereto in respect of the subject matter hereof and thereof, and
supersede and replace in their entirety any prior proposals, term sheets, non-disclosure or confidentiality agreements, letters, negotiations or other documents or agreements, whether written or oral, with respect to the subject matter hereof
or thereof.
(b) Neither this Agreement, any other Loan Document, nor any terms hereof or thereof may be amended, supplemented or modified except in accordance with the provisions of this Section
11.3(b). The Required Lenders and each Loan Party to the relevant Loan Document may, or, with the written consent of the Required Lenders, the Agent and the Loan Parties party to the relevant Loan Document may, from time to time, (i) enter
into written amendments, supplements or modifications hereto and to the other Loan Documents for the purpose of adding any provisions to this Agreement or the other Loan Documents or changing in any manner the rights of the Lenders or of the
Loan Parties hereunder or thereunder or (ii) waive, on such terms and conditions as the Required Lenders or the Agent, as the case may be, may specify in such instrument, any of the requirements of this Agreement or the other Loan Documents
or any default or Event of Default and its consequences; provided, however, that no such waiver and no such amendment, supplement or modification shall (A) forgive the principal amount or extend the final scheduled date of maturity of any
Loan, extend the scheduled date of any amortization payment in respect of any Term Loan, reduce the stated rate of any interest (or fee payable hereunder) or extend the scheduled date of any payment thereof, in each case without the written
consent of each Lender directly affected thereby; (B) eliminate or reduce the voting rights of any Lender under this Section 11.3(b) without the written consent of such Lender; (C) reduce any percentage specified in the definition of Required
Lenders, consent to the assignment or transfer by the Loan Parties of any of their rights and obligations under this Agreement and the other Loan Documents, release all or substantially all of the Collateral or release a Loan Party from its
obligations under the Loan Documents, in each case without the written consent of all Lenders; or (D) amend, modify or waive any provision of Section 11.18 or Addendum 3 without the written consent of the Agent. Any such waiver and any such
amendment, supplement or modification shall apply equally to each Lender and shall be binding upon the Loan Parties, the Lender, the Agent and all future holders of the Loans.
11.4 No Strict Construction. The parties hereto have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or
interpretation arises, this Agreement shall be construed as if drafted jointly by the parties hereto and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provisions of this
Agreement.
11.5 No Waiver. The powers conferred upon Agent and the Lenders by this Agreement are solely to protect its rights hereunder and under the other Loan Documents and its interest in the
Collateral and shall not impose any duty upon Agent or the Lenders to exercise any such powers. No omission or delay by Agent or the Lenders at any time to enforce any right or remedy reserved to it, or to require performance of any of the
terms, covenants or provisions hereof by the Loan Parties at any time designated, shall be a waiver of any such right or remedy to which Agent or the Lenders is entitled, nor shall it in any way affect the right of Agent or the Lenders to
enforce such provisions thereafter.
11.6 Survival. All agreements, representations and warranties contained in this Agreement and the other Loan Documents or in any document delivered pursuant hereto or thereto shall be
for the benefit of Agent and the Lenders and shall survive the execution and delivery of this Agreement. Sections 6.3 and 11.15 shall survive the termination of this Agreement.
11.7 Successors and Assigns. The provisions of this Agreement and the other Loan Documents shall inure to the benefit of and be binding on each Loan Party and its permitted assigns (if
any). No Loan Party shall assign its obligations under this Agreement or any of the other Loan Documents without Agent’s express prior written consent, and any such attempted assignment shall be void and of no effect. Agent and the Lenders
may assign, transfer, or endorse its rights hereunder and under the other Loan Documents without prior notice to the Loan Parties, and all of such rights shall inure to the benefit of Agent’s and the Lenders’ successors and assigns; provided
that as long as no Event of Default has occurred and is continuing, neither Agent nor any Lender may assign, transfer or endorse its rights hereunder or under the Loan Documents to any party that is a direct competitor of any Loan Party or a
distressed debt or vulture fund (in each case, as reasonably determined by Agent in consultation with the Loan Parties), it being acknowledged that in all cases, any transfer to an Affiliate of any Lender or Agent shall be allowed.
Notwithstanding the foregoing, (x) in connection with any assignment by a Lender as a result of a forced divestiture at the request of any regulatory agency, the restrictions set forth herein shall not apply and Agent and the Lenders may
assign, transfer or indorse its rights hereunder and under the other Loan Documents to any Person or party and (y) in connection with a Lender’s own financing or securitization transactions, the restrictions set forth herein shall not apply
and Agent and the Lenders may assign, transfer or indorse its rights hereunder and under the other Loan Documents to any Person or party providing such financing or formed to undertake such securitization transaction and any transferee of
such Person or party upon the occurrence of a default, event of default or similar occurrence with respect to such financing or securitization transaction; provided that no such sale, transfer, pledge or assignment under this clause (y) shall
release such Lender from any of its obligations hereunder or substitute any such Person or party for such Lender as a party hereto until Agent shall have received and accepted an effective assignment agreement from such Person or party in
form satisfactory to Agent executed, delivered and fully completed by the applicable parties thereto, and shall have received such other information regarding such assignee as Agent reasonably shall require. The Agent, acting solely for this
purpose as an agent of the Loan Parties, shall maintain at one of its offices in the United States a register for the recordation of the names and addresses of the Lender(s), and the Term Commitments of, and principal amounts (and stated
interest) of the Loans owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive absent manifest error, and the Loan Parties, the Agent and the Lender(s) shall
treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Loan Parties and any Lender, at any
reasonable time and from time to time upon reasonable prior notice.
11.8 Participations. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the
name and address of each participant and the principal amounts (and stated interest) of each participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have
any obligation to disclose all or any portion of the Participant Register (including the identity of any participant or any information relating to a participant’s interest in any commitments, loans, its other obligations under any Loan
Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the Treasury Regulations and
proposed Section 1.163-5(b) (or, in each case, any amended or successor sections)of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each
Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Agent (in its capacity as Agent)
shall have no responsibility for maintaining a Participant Register. Borrower agrees that each participant shall be entitled to the benefits of the provisions in Addendum 1 attached hereto (subject to the requirements and limitations herein
and therein, including the requirements under Section 7 of Addendum 1 attached hereto (it being understood that the documentation required under Section 7 of Addendum 1 attached hereto shall be delivered to the participating Lender)) to the
same extent as if it were a Lender and had acquired its interest by assignment pursuant to Section 11.7 and subject to the same restrictions and covenants that would have applied to a Lender; provided that such participant shall not be
entitled to receive any greater payment under Addendum 1 attached hereto, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment
results from a change in law that occurs after the participant acquired the applicable participation.
11.9 Governing Law. This Agreement and the other Loan Documents, excluding the Foreign Security Documents, have been negotiated and delivered to Agent and the Lenders in the State of
California, and shall have been accepted by Agent and the Lenders in the State of California. Payment to Agent and the Lenders by the Loan Parties of the Secured Obligations is due in the State of California. This Agreement and the other
Loan Documents, excluding the Foreign Security Documents, shall be governed by, and construed and enforced in accordance with, the laws of the State of California, excluding conflict of laws principles that would cause the application of laws
of any other jurisdiction.
11.10 Consent to Jurisdiction and Venue. All judicial proceedings (to the extent that the reference requirement of Section 11.11 is not applicable) arising in or under or related to this
Agreement or any of the other Loan Documents may be brought in any state or federal court located in the State of California. By execution and delivery of this Agreement, each party hereto generally and unconditionally: (a) consents to
nonexclusive personal jurisdiction in Santa Clara County, State of California; (b) waives any objection as to jurisdiction or venue in Santa Clara County, State of California; (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 Agreement or the other Loan Documents. Service of process on any party hereto in any action arising out of or
relating to this Agreement shall be effective if given in accordance with the requirements for notice set forth in Section 11.2, and shall be deemed effective and received as set forth in Section 11.2. 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.
11.11 Mutual Waiver of Jury Trial / Judicial Reference.
(a) 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 LOAN PARTIES, AGENT AND THE LENDERS 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 LOAN PARTIES AGAINST AGENT, THE LENDERS OR THEIR RESPECTIVE ASSIGNEE OR
BY AGENT, THE LENDERS OR THEIR RESPECTIVE ASSIGNEE AGAINST ANY LOAN PARTY. This waiver extends to all such Claims, including Claims that involve Persons other than Agent, the Loan Parties and the Lenders; Claims that arise out of or are in
any way connected to the relationship among the Loan Parties, Agent and the Lenders; 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, any
other Loan Document.
(b) If the waiver of jury trial set forth in Section 11.11(a) is ineffective or unenforceable, the parties agree that all Claims shall be resolved by reference to a private judge
sitting without a jury, pursuant to Code of Civil Procedure Section 638, before a mutually acceptable referee or, if the parties cannot agree, a referee selected by the Presiding Judge of the Santa Clara County, California. Such proceeding
shall be conducted in Santa Clara County, California, with California rules of evidence and discovery applicable to such proceeding.
(c) In the event Claims are to be resolved by judicial reference, either party may seek from a court identified in Section 11.10, any prejudgment order, writ or other relief and have
such prejudgment order, writ or other relief enforced to the fullest extent permitted by law notwithstanding that all Claims are otherwise subject to resolution by judicial reference.
11.12 Professional Fees. Each Loan Party promises to pay Agent’s and the Lenders’ fees and expenses necessary to finalize the loan documentation, including but not limited to reasonable
attorneys’ fees, UCC searches, filing costs, and other miscellaneous expenses. In addition, each Loan Party promises to pay any and all reasonable attorneys’ and other professionals’ fees and expenses incurred by Agent and the Lenders after
the Closing Date in connection with or related to: (a) the Loan; (b) the administration, collection, or enforcement of the Loan; (c) the amendment or modification of the Loan Documents; (d) any waiver, consent, release, or termination under
the Loan Documents; (e) the protection, preservation, audit, field exam, sale, lease, liquidation, or disposition of Collateral or the exercise of remedies with respect to the Collateral; (f) any legal, litigation, administrative,
arbitration, or out of court proceeding in connection with or related to the Loan Parties or the Collateral, and any appeal or review thereof; and (g) any bankruptcy, restructuring, reorganization, assignment for the benefit of creditors,
workout, foreclosure, or other action related to the Loan Parties, the Collateral, the Loan Documents, and including representing Agent or the Lenders in any adversary proceeding or contested matter commenced or continued by or on behalf of
any Loan Party’s estate, and any appeal or review thereof.
11.13 Confidentiality. Agent and the Lenders acknowledge that certain items of Collateral and information provided to Agent and the Lenders by the Loan Parties are confidential and
proprietary information of the Loan Parties, if and to the extent such information either (x) is marked as confidential by the Loan Parties at the time of disclosure, or (y) should reasonably be understood to be confidential (the
“Confidential Information”). Accordingly, Agent and the Lenders agree that any Confidential Information it may obtain in the course of acquiring, administering, or perfecting Agent’s security interest in the Collateral shall not be disclosed
to any other Person or entity in any manner whatsoever, in whole or in part, without the prior written consent of the Loan Parties, except that Agent and the Lenders may disclose any such information: (a) to its Affiliates and its partners,
investors, lenders, directors, officers, employees, agents, advisors, counsel, accountants, counsel, representative and other professional advisors if Agent or the Lenders in their sole discretion determines that any such party should have
access to such information in connection with such party’s responsibilities in connection with the Loan or this Agreement and, provided that such recipient of such Confidential Information either (i) agrees to be bound by the confidentiality
provisions of this paragraph or (ii) is otherwise subject to confidentiality restrictions that reasonably protect against the disclosure of Confidential Information; (b) if such information is generally available to the public or to the
extent such information becomes publicly available other than as a result of a breach of this Section or becomes available to Agent or any Lender, or any of their respective Affiliates on a non-confidential basis from a source other than a
Loan Party; (c) if required or appropriate in any report, statement or testimony submitted to any governmental authority having or claiming to have jurisdiction over Agent or the Lenders and any rating agency; (d) if required or appropriate
in response to any summons or subpoena or in connection with any litigation, to the extent permitted or deemed advisable by Agent’s or the Lenders’ counsel; (e) to comply with any legal requirement or law applicable to Agent or the Lenders;
(f) to the extent reasonably necessary in connection with the exercise of any right or remedy under any Loan Document (including Agent’s sale, lease, or other disposition of Collateral after default); (g) to any participant or assignee of
Agent or the Lenders or any prospective participant or assignee, provided, that such participant or assignee or prospective participant or assignee is subject to confidentiality restrictions that reasonably protect against the disclosure of
Confidential Information; (h) to any investor or potential investor (and each of their respective Affiliates or clients) in the Agent or Lender (or each of their respective Affiliates); provided that such investor, potential investor,
Affiliate or client is subject to confidentiality obligations with respect to the Confidential Information; (i) otherwise to the extent consisting of general portfolio information that does not identify Borrower; or (j) otherwise with the
prior consent of the Loan Parties; provided, that any disclosure made in violation of this Agreement shall not affect the obligations of the Loan Parties or any of their Affiliates or any guarantor under this Agreement or the other Loan
Documents.
11.14 Assignment of Rights. Each Loan Party acknowledges and understands that Agent or the Lenders may, subject to Section 11.7, sell and assign all or part of its interest hereunder and
under the Loan Documents to any Person or entity (an “Assignee”). After such assignment the term “Agent” or “Lender” as used in the Loan Documents shall mean and include such Assignee, and such Assignee shall be vested with all rights,
powers and remedies of Agent and the Lenders hereunder with respect to the interest so assigned; but with respect to any such interest not so transferred, Agent and the Lenders shall retain all rights, powers and remedies hereby given. No
such assignment by Agent or the Lenders shall relieve any Loan Party of any of its obligations hereunder. the Lenders agrees that in the event of any transfer by it of the promissory note(s) (if any), it will endorse thereon a notation as to
the portion of the principal of the promissory note(s), which shall have been paid at the time of such transfer and as to the date to which interest shall have been last paid thereon.
11.15 Revival of Secured Obligations. This Agreement and the Loan Documents shall remain in full force and effect and continue to be effective if any petition is filed by or against any
Loan Party for liquidation or reorganization, if any Loan Party becomes insolvent or makes an assignment for the benefit of creditors, if a receiver or trustee is appointed for all or any significant part of any Loan Party’s assets, or if any
payment or transfer of Collateral is recovered from Agent or the Lenders. The Loan Documents and the Secured Obligations and Collateral security shall continue to be effective, or shall be revived or reinstated, as the case may be, if at any
time payment and performance of the Secured Obligations or any transfer of Collateral to Agent, or any part thereof is rescinded, avoided or avoidable, reduced in amount, or must otherwise be restored or returned by, or is recovered from,
Agent, the Lenders or by any obligee of the Secured Obligations, whether as a “voidable preference,” “fraudulent conveyance,” or otherwise, all as though such payment, performance, or transfer of Collateral had not been made. In the event
that any payment, or any part thereof, is rescinded, reduced, avoided, avoidable, restored, returned, or recovered, the Loan Documents and the Secured Obligations shall be deemed, without any further action or documentation, to have been
revived and reinstated except to the extent of the full, final, and indefeasible payment to Agent or the Lenders in Cash.
11.16 Counterparts. This Agreement and any amendments, waivers, consents or supplements hereto may be executed in any number of counterparts, and by different parties hereto in separate
counterparts, each of which when so delivered shall be deemed an original, but all of which counterparts shall constitute but one and the same instrument.
11.17 No Third Party Beneficiaries. No provisions of the Loan Documents are intended, nor will be interpreted, to provide or create any third-party beneficiary rights or any other rights
of any kind in any Person other than Agent, the Lenders and the Loan Parties unless specifically provided otherwise herein, and, except as otherwise so provided, all provisions of the Loan Documents will be personal and solely among Agent,
the Lenders and the Loan Parties.
11.18 Agency. Agent and each Lender hereby agree to the terms and conditions set forth on Addendum 3 attached hereto. The Loan Parties acknowledge and agree to the terms and conditions
set forth on Addendum 3 attached hereto.
11.19 Publicity. None of the parties hereto nor any of its respective member businesses and Affiliates shall, without the other parties’ prior written consent (which shall not be
unreasonably withheld or delayed), publicize or use (a) the other party’s name (including a brief description of the relationship among the parties hereto), logo or hyperlink to such other parties’ web site, separately or together, in written
and oral presentations, advertising, promotional and marketing materials, client lists, public relations materials or on its web site (together, the “Publicity Materials”); (b) the names of officers of such other parties in the Publicity
Materials; and (c) such other parties’ name, trademarks, servicemarks in any news or press release concerning such party; provided however, notwithstanding anything to the contrary herein, no such consent shall be required (i) to the extent
necessary to comply with the requests of any regulators, legal requirements or laws applicable to such party, pursuant to any listing agreement with any national securities exchange (so long as such party provides prior notice to the other
party hereto to the extent reasonably practicable) and (ii) to comply with Section 11.13.
11.20 Multiple Borrowers. Each Loan Party hereby agrees to the terms and conditions set forth on Addendum 4 attached
hereto.
11.21 Electronic Execution of Certain Other Documents. The words “execution,” “execute”, “signed,” “signature,” and
words of like import in or related to any document to be signed in connection with this Agreement 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 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 California Uniform Electronic Transaction Act, or any other similar state laws based on the Uniform Electronic Transactions Act.
SECTION 12. GUARANTEE
12.1 The Guarantee. Guarantors hereby jointly and severally guarantee to Agent and the Lenders, and their successors and assigns, the prompt
payment in full when due (whether at stated maturity, by acceleration or otherwise) of the principal of and interest on the Loans, all fees and other amounts and Secured Obligations from time to time owing to Agent and Lenders by Borrower and
each other Loan Party under this Agreement or under any other Loan Document, in each case strictly in accordance with the terms hereof and thereof (such obligations being herein collectively called the “Guaranteed Obligations”). Guarantors
hereby further jointly and severally agree that if Borrower or any other Loan Party shall fail to pay in full when due (whether at stated maturity, by acceleration or otherwise) any of the Guaranteed Obligations, Guarantors shall promptly pay
the same, without any demand or notice whatsoever, and that in the case of any extension of time of payment or renewal of any of the Guaranteed Obligations, the same shall be promptly paid in full when due (whether at extended maturity, by
acceleration or otherwise) in accordance with the terms of such extension or renewal.
12.2 Obligations Unconditional. The obligations of Guarantors under Section 12.1 are absolute and unconditional, joint and several, irrespective of
the value, genuineness, validity, regularity or enforceability of the obligations of Borrower or any other Guarantor under this Agreement or any other agreement or instrument referred to herein, or any substitution, release or exchange of any
other guarantee of or security for any of the Guaranteed Obligations, and, to the fullest extent permitted by all applicable Laws, irrespective of any other circumstance whatsoever that might otherwise constitute a legal or equitable
discharge or defense of a surety or guarantor, it being the intent of this Section 12.2 that the obligations of Guarantors hereunder shall be absolute and unconditional, joint and several, under any and all circumstances. Without limiting
the generality of the foregoing, it is agreed that the occurrence of any one or more of the following shall not alter or impair the liability of Guarantors hereunder, which shall remain absolute and unconditional as described above:
(a) at any time or from time to time, without notice to Guarantors, the time for any performance of or compliance with any of the Guaranteed
Obligations shall be extended, or such performance or compliance shall be waived;
(b) any of the acts mentioned in any of the provisions of this Agreement or any other agreement or instrument referred to herein shall be done or
omitted;
(c) the maturity of any of the Guaranteed Obligations shall be accelerated, or any of the Guaranteed Obligations shall be modified, supplemented or
amended in any respect, or any right under this Agreement or any other agreement or instrument referred to herein shall be waived or any other guarantee of any of the Guaranteed Obligations or any security therefor shall be released or
exchanged in whole or in part or otherwise dealt with; or
(d) any lien or security interest granted as security for any of the Guaranteed Obligations shall fail to be perfected.
Guarantors hereby expressly waive diligence, presentment, demand of payment, protest and all notices whatsoever, and any requirement that Agent or any Lender exhaust any right, power or remedy or proceed
against Borrower or any other Guarantor under this Agreement or any other agreement or instrument referred to herein, or against any other Person under any other guarantee of, or security for, any of the Guaranteed Obligations. Without
limiting any provisions of this Section 12, each Guarantor waives and agrees not to assert, to the fullest extent permitted by law, any other defences or benefits that may be derived from or afforded by applicable law limiting the liability
of or exonerating guarantors or sureties, or which may conflict with the terms of this Section. Each Guarantor waives the benefit of California Civil Code Section 2815 permitting termination or revocation of the continuing nature of this
guarantee and the benefits of any rights and defences which are or may become available by reason of California Civil Code Sections 2787 through 2855, 2899 and 3433.
12.3 Reinstatement. The obligations of Guarantors under this Section 12 shall be automatically reinstated if and to the extent that for any reason
any payment by or on behalf of the Borrower in respect of the Guaranteed Obligations is rescinded or must be otherwise restored by any holder of any of the Guaranteed Obligations, whether as a result of any proceedings in bankruptcy or
reorganization or otherwise, and Guarantors jointly and severally agree that they shall indemnify the Agent and Lenders on demand for all reasonable and documented out-of-pocket costs and expenses (including reasonable and documented
out-of-pocket fees of counsel) incurred by such Persons in connection with such 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.
12.4 Subrogation. Guarantors hereby jointly and severally agree that, until the payment and satisfaction in full of all Guaranteed Obligations and
the expiration and termination of the Term Commitments, they shall not exercise any right or remedy arising by reason of any performance by them of their guarantee in Section 12.1, whether by subrogation or otherwise, against Borrower or any
other guarantor of any of the Guaranteed Obligations or any security for any of the Guaranteed Obligations.
12.5 Remedies. Guarantors jointly and severally agree that, as between Guarantors, on one hand, and the Agent and Lenders, on the other hand, the
obligations of Borrower under this Agreement and under the other Loan Documents may be declared to be forthwith due and payable as provided in Section 10 (and shall be deemed to have become automatically due and payable in the circumstances
provided in Section 10) for purposes of Section 12.1 notwithstanding any stay, injunction or other prohibition preventing such declaration (or such obligations from becoming automatically due and payable) as against Borrower and that, in the
event of such declaration (or such obligations being deemed to have become automatically due and payable), such obligations (whether or not due and payable by the Borrower) shall forthwith become due and payable by Guarantors for purposes of
Section 12.1.
12.6 Continuing Guarantee. The guarantee in this Section 12 is a continuing guarantee, and shall apply to all Guaranteed Obligations whenever
arising.
12.7 General Limitation on Guarantee Obligations. In any action or proceeding involving any provincial, territorial or state corporate law, or any U.S. or non-U.S. state or federal
bankruptcy, insolvency, reorganization or other law affecting the rights of creditors generally, if the obligations of any Guarantor under Section 12.1 would otherwise be held or determined to be void, invalid or unenforceable, or
subordinated to the claims of any other creditors, on account of the amount of its liability under Section 12.1, then, notwithstanding any other provision hereof to the contrary, the amount of such liability shall, without any further action
by such Guarantor, the Agent, any Lender or any other Person, be automatically limited and reduced to the highest amount that is valid and enforceable and not subordinated to the claims of other creditors as determined in such action or
proceeding.
12.8 Dutch Guarantee Limitation. Notwithstanding any other provision of this Section 12 and any Lien, the guarantee, indemnity and other obligations
of any Loan Party incorporated in The Netherlands expressed to be assumed by it in this Section 12 and/or Lien shall be deemed not to be assumed by such Loan Party to the extent that the same would constitute unlawful financial assistance
within the meaning of section 2:98(c) of the Dutch Civil Code or any other applicable financial assistance rules, under any relevant jurisdictions and the provisions of this Agreement and the Loan Documents shall be construed accordingly
12.9 German Guarantee Limitation. In relation to the ATAI Germany, the following shall apply in addition to the provisions set out in this Section
12.7 above, as long as ATAI Germany is incorporated as a stock corporation (Aktiengesellschaft), with respect to any obligations or liabilities owed by the Parent or any other direct or indirect
shareholder of ATAI Germany or a Subsidiary of such shareholder (other than any directly or indirectly owned Subsidiaries of ATAI Germany) (collectively the “AG’s Shareholder Obligations”):
|
(i) |
Except as provided in (x) paragraph (ii) below and (y) in relation to any obligations or liabilities owed by ATAI Germany or its Subsidiaries, no guarantee or indemnity shall be enforceable with respect to any AG’s Shareholder
Obligation;
|
|
(ii) |
if, at the time a demand for payment is made under this Agreement, a domination or profit and loss transfer agreement (Beherrschungs- oder Gewinnabführungsvertrag) within the meaning of §
291 German Stock Corporation Act (Aktiengesetz) with the Parent is in force (“DPLTA”), the guarantee or indemnity granted by ATAI Germany or directly or indirectly owned Subsidiaries of ATAI
Germany under this Agreement to secure any obligations or liabilities with respect to the AG’s Shareholder Obligations shall be valid and enforceable, except if an to the extent the payment under the guarantee or indemnity will, or
must be expected to, result in an annual loss to ATAI Germany which would not be, or cannot be expected to be, compensated for by a compensation claim under the DPLTA which compensation claim could be accounted for in the balance
sheet of ATAI Germany at full value (vollwertig).
|
The limitations on enforcement set out in in this Section 12.9 shall apply mutatis mutandis to the enforcement of any other payment obligation created or incurred by ATAI Germany under the Loan Documents
(including any Collateral Agent Parallel Debt Claim, if and to the extent such payment obligation guarantees and/or secures a payment of AG’ Shareholder Obligation (other than any of directly or indirectly owned Subsidiaries of ATAI Germany).
For the avoidance of doubt, nothing in this Agreement shall be interpreted as a restriction or limitation of (i) the enforcement of the guarantee to the extent such guarantee guarantees obligations of ATAI
Germany itself in its capacity as Borrower or obligations of any of its direct or indirect subsidiaries including in each case their legal successors or (ii) the enforcement of any claim of any Secured Party against a Borrower (in such
capacity) under this Agreement.
(SIGNATURES TO FOLLOW)
[Addenda, Schedules and Exhibits Intentionally Omitted and on file with Agent]