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AMENDMENT NO. 7 TO CREDIT AND SECURITY AGREEMENT
This AMENDMENT NO. 7 TO CREDIT AND SECURITY AGREEMENT (this Agreement ) is made as of this 22nd day of April, 2021, by and
among MANNKIND CORPORATION, a Delaware corporation ( MannKind ), MANNKIND LLC, a Delaware limited liability company ( MannKind LLC ), QRUMPHARMA, INC., a Delaware corporation
( QP , and, QP, together with MannKind and MannKind LLC, each a Borrower and collectively, the Borrowers ), MIDCAP FINANCIAL TRUST, as Agent (in such capacity, together with its successors
and assigns, Agent ) and the financial institutions or other entities from time to time parties to the Credit Agreement referenced below, each as a Lender.
A. Agent, Lenders and Borrowers have entered into that certain Credit and Security Agreement, dated as of
August 6, 2019 (as amended by that certain Amendment No. 1 to Credit and Security Agreement, dated as of December 18, 2019, that certain Amendment No. 2 to Credit and Security Agreement, dated as of August 21, 2020, that
certain Amendment No. 3 to Credit and Security Agreement, dated as of November 30, 2020, that certain Amendment No. 4 to Credit and Security Agreement, dated as of December 7, 2020, that certain Omnibus Joinder and Amendment
No. 5 to Credit and Security Agreement and Amendment No. 1 to Pledge Agreement, dated as of December 29, 2020, and that certain Amendment No. 6 to Credit and Security Agreement dated as of March 1, 2021 and as further
amended, supplemented or otherwise modified from time to time prior to the date hereof, the Existing Credit Agreement and, as the same is amended hereby and as it may be further amended, modified, supplemented and restated from
time to time, the Credit Agreement ), pursuant to which the Lenders have agreed to make certain advances of money and to extend certain financial accommodations to the Borrowers in the amounts and manner set forth in the Credit
B. Borrowers have notified Agent and Lenders that it wishes to prepay Credit Extensions advanced under
Existing Credit Agreement in an aggregate principal amount of $10,000,000 on the date hereof (the Term Loan Prepayment ).
C. Borrowers have requested, and Agent and Lenders have agreed, on and subject to the terms and conditions set forth in
this Agreement, the Credit Agreement and the other Financing Documents, to amend certain provisions of the Existing Credit Agreement to, among other things, (a) revise certain financial covenants, (b) permit certain payments in respect of
Subordinated Debt, (c) increase the Applicable Commitments in respect of Credit Facility #3, (d) change certain terms related to the interest rate applicable to Credit Extensions, (e) allow for certain Permitted Acquisitions, and
(f) provide certain fees and other terms relating to the foregoing.
NOW, THEREFORE, in consideration of the foregoing, the terms and conditions set forth in this Agreement, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, Agent, Lenders and Borrower hereby agree as follows:
1. Recitals. This Agreement shall constitute a Financing Document and the Recitals and each reference to
the Credit Agreement, unless otherwise expressly noted, will be deemed to reference the Credit Agreement as amended hereby. Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to them in the Credit Agreement
(including those capitalized terms used in the Recitals hereto).
MidCap / MannKind / Amendment No. 7
2. Amendments to Existing Credit Agreement. Subject to
the terms and conditions of this Agreement, including, without limitation, the conditions to effectiveness set forth in Section 5 below, on the Seventh Amendment Effective Date:
(a) the Existing Credit Agreement is hereby amended to delete the stricken text (indicated textually in the same manner
as the following example: stricken text) and to add the underlined text (indicated textually in the same
manner as the following example: underlined text) as set forth in the pages attached hereto as Exhibit A;
(b) the Agent and each Lender hereby consents to the Term Loan Prepayment on the date hereof and to the
payment on the next Payment Date following the date hereof of all accrued and unpaid interest in respect of the principal constituting the Term Loan Prepayment through and including the Seventh Amendment Effective Date and waive the written notice
required under Section 2.3(d)(i) of the Existing Credit Agreement with respect to the Term Loan Prepayment, and Borrowers hereby agree to pay, on the next Payment Date following the date hereof, all accrued and unpaid interest in respect of the
principal constituting the Term Loan Prepayment through and including the Seventh Amendment Effective Date;
(c) the Term Loan Prepayment shall be applied by Agent pro rata among the outstanding Credit Facilities and to each
applicable Lender pursuant to such Lender s Pro Rata Share of the applicable Credit Facilities;
and each Lender hereby waives the Applicable Prepayment Fee as specified in the Credit Facility Schedule for Credit Facility #1 and Credit Facility #2 that would otherwise be required in connection with the Term Loan Prepayment on the date hereof.
For the avoidance of doubt, following the effectiveness of this Agreement and the Term Loan Prepayment, the outstanding principal amount of the Credit
Extensions under Credit Facility #1 is $32,000,000 and under Credit Facility #2 is $8,000,000.
3. Representations and Warranties; Reaffirmation of Security Interest. Each Borrower hereby
(a) confirms that all of the representations and warranties set forth in the Credit Agreement are true and correct in all material respects (without duplication of any materiality qualifier in the text of such representation or warranty) with
respect to such Borrower as of the date hereof except to the extent that any such representation or warranty relates to a specific date in which case such representation or warranty shall be true and correct as of such earlier date, and
(b) covenants to perform its respective obligations under the Credit Agreement. Each Borrower confirms and agrees that all security interests and Liens granted to Agent continue in full force and effect, and all Collateral remains free and
clear of any Liens, other than Permitted Liens. Nothing herein is intended to impair or limit the validity, priority or extent of Agent s security interests in and Liens on the Collateral. Each Borrower acknowledges and agrees that the Credit
Agreement, the other Financing Documents and this Agreement constitute the legal, valid and binding obligation of such Borrower, and are enforceable against such Borrower in accordance with its terms, except as the enforceability thereof may be
limited by bankruptcy, insolvency or other similar laws relating to the enforcement of creditors rights generally and by general equitable principles.
4. Costs and Fees. Borrowers shall be responsible for the payment of all reasonable and documented
out-of-pocket costs and fees of Agent s counsel incurred in connection with the preparation of this Agreement and any related documents.
MidCap / MannKind / Amendment No. 7
5. Conditions to Effectiveness. This Agreement
shall become effective as of the date on which each of the following conditions has been satisfied, as determined by Agent in its sole discretion:
(a) Agent shall have received (including by way of facsimile or other electronic transmission) a duly authorized,
executed and delivered counterpart of the signature page to this Amendment from each Borrower, Agent and the Lenders;
(b) Agent shall receive, concurrently with this Agreement, the Term Loan Prepayment pursuant to the terms of
Section 2.3 of the Credit Agreement together with all accrued interest and fees due and payable with respect thereto;
(c) Agent shall receive evidence of the cash repayment of Mann Group Note Obligations in a principal amount equal to
$35,050,750 following which payment the aggregate principal amount outstanding under in respect of the Mann Group Notes is $18,425,000;
(d) Agent shall have received evidence satisfactory to it that the full principal amount of the Bruce Notes have been
paid by Borrower in accordance with the terms of the Credit Agreement or converted into common stock of MannKind and all obligations of Borrower in respect of the Bruce Notes have been indefeasibly satisfied in full;
(e) all representations and warranties of Borrower contained herein shall be true and correct in all material respects
(without duplication of any materiality qualifier in the text of such representation or warranty) as of the date hereof except to the extent that any such representation or warranty relates to a specific date in which case such representation or
warranty shall be true and correct as of such earlier date (and such parties delivery of their respective signatures hereto shall be deemed to be its certification thereof);
(f) prior to and after giving effect to the agreements set forth herein, no Default or Event of Default shall exist
under any of the Financing Documents;
(g) receipt by Agent of an opinion of Borrowers counsel, addressed to
Agent and Lenders, addressing the matters that Agent may reasonably request;
(h) Agent shall have received a duly
authorized, executed and delivered counterpart of the signature page to a Limited Consent, Amendment and Reaffirmation to Subordination Agreement from Mann Group, LLC, as Subordinating Creditor, the Agent and each Borrower; and
(i) Agent shall have received such other documents, information, certificates, and information as Agent may reasonably
request in connection with this Agreement.
6. Release. In consideration of the agreements of Agent
and Lenders contained herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Borrower, voluntarily, knowingly, unconditionally and irrevocably, with specific and express intent, for and on
behalf of itself and all of its respective parents, subsidiaries, affiliates, members, managers, predecessors, successors, and assigns, and each of its respective current and former directors, officers, shareholders, agents, and employees, and each
of its respective predecessors, successors, heirs, and assigns (individually and collectively, the Releasing Parties ) does hereby fully and completely release, acquit and forever discharge each of Agent, Lenders, and each their
respective parents, subsidiaries, affiliates, members, managers, shareholders, directors, officers and employees, and each of their respective predecessors, successors, heirs, and assigns (individually and collectively, the Released
Parties ), of and from any and all actions, causes of action, suits, debts, disputes, damages, claims, obligations, liabilities, costs, expenses and demands of any kind whatsoever, at law or in equity, whether matured or unmatured,
liquidated or unliquidated, vested or contingent, choate or inchoate, known or unknown that the Releasing Parties (or any of them) has against the Released Parties or any of them (whether directly or indirectly),
MidCap / MannKind / Amendment No. 7
based in whole or in part on facts, whether or not now known, existing on or before the date hereof, that relate to, arise out of or otherwise are in connection with: (i) any or all of the
Financing Documents or transactions contemplated thereby or any actions or omissions in connection therewith or (ii) any aspect of the dealings or relationships between or among any Borrower, on the one hand, and any or all of the Released
Parties, on the other hand, relating to any or all of the documents, transactions, actions or omissions referenced in clause (i) hereof, in each case, based in whole or in part on facts, whether or not now known, existing before the First
Amendment Effective Date. Borrower acknowledges that the foregoing release is a material inducement to Agent s and each Lender s decision to enter into this Agreement and agree to the modifications contemplated hereunder, and has been
relied upon by Agent and Lenders in connection therewith.
7. No Waiver or Novation. The
execution, delivery and effectiveness of this Agreement shall not, except as expressly provided in this Agreement, operate as a waiver of any right, power or remedy of Agent, nor constitute a waiver of any provision of the Credit Agreement, the
Financing Documents or any other documents, instruments and agreements executed or delivered in connection with any of the foregoing. Nothing herein is intended or shall be construed as a waiver of (a) any existing Defaults or Events of Default
under the Credit Agreement or the other Financing Documents or any of Agent s rights and remedies in respect of such Defaults or Events of Default. Except as expressly provided herein, nothing in this Agreement shall be construed as an
amendment to or waiver of any condition precedent to any funding of Credit Extensions by the Lenders under the Credit Agreement, including those conditions set forth in Section 3.2 of the Credit Agreement. This Agreement (together with any
other document executed in connection herewith) is not intended to be, nor shall it be construed as, a novation of the Credit Agreement.
8. Affirmation. Except as specifically amended pursuant to the terms hereof, Borrower hereby
acknowledges and agrees that the Credit Agreement and all other Financing Documents (and all covenants, terms, conditions and agreements therein) shall remain in full force and effect, and are hereby ratified and confirmed in all respects by
Borrower. Borrower covenants and agrees to comply with all of the terms, covenants and conditions of the Credit Agreement and the Financing Documents, notwithstanding any prior course of conduct, waivers, releases or other actions or inactions on
Agent s or any Lender s part which might otherwise constitute or be construed as a waiver of or amendment to such terms, covenants and conditions.
(a) Reference to the Effect on the Credit Agreement. Upon the effectiveness of this Agreement, each reference in
the Credit Agreement to this Agreement, hereunder, hereof, herein, or words of similar import shall mean and be a reference to the Credit Agreement, as amended by this Agreement. Except as specifically
amended above, the Credit Agreement, and all other Financing Documents (and all covenants, terms, conditions and agreements therein), shall remain in full force and effect, and are hereby ratified and confirmed in all respects by Borrower.
(b) GOVERNING LAW. THIS AGREEMENT AND ALL DISPUTES AND OTHER MATTERS RELATING HERETO OR THERETO OR ARISING
THEREFROM (WHETHER SOUNDING IN CONTRACT LAW, TORT LAW OR OTHERWISE), SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES (OTHER THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW).
(c) WAIVER OF JURY TRIAL.
BORROWER, AGENT AND THE LENDERS PARTY HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY
MidCap / MannKind / Amendment No. 7
IN ANY LEGAL ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY AND AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT