Rockley Photonics Holdings Limited as Borrower Certain Companies as Guarantors Argentum Securities Ireland plc as Original Lender Credit Suisse International as Agent and Security Agent and SIG-i Capital AG as Arranger relating to a term facility of...

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SCHEDULE 1: THE ORIGINAL PARTIES

PART 1: THE ORIGINAL OBLIGORS

PART 2: THE ORIGINAL LENDERS

SCHEDULE 2: CONDITIONS PRECEDENT TO INITIAL UTILISATION

PART 1:

PART 2: CONDITIONS PRECEDENT REQUIRED TO BE DELIVERED BY AN ADDITIONAL OBLIGOR

PART 3: TRANSACTION SECURITY DOCUMENTS AND SECURITY RELATED DOCUMENTS TO BE DELIVERED BY ADDITIONAL OBLIGORS

SCHEDULE 3: UTILISATION REQUEST

SCHEDULE 4: FORM OF TRANSFER CERTIFICATE

SCHEDULE 5: FORM OF ASSIGNMENT AGREEMENT

SCHEDULE 6: FORM OF ACCESSION DEED

SCHEDULE 7: FORM OF RESIGNATION LETTER

SCHEDULE 8: FORM OF COMPLIANCE CERTIFICATE

SCHEDULE 9: EXISTING SECURITY

SCHEDULE 10: PRICING

SCHEDULE 11: SPAC CONVERSION SHARE NOTICE

ROCKLEY PHOTONICS HOLDINGS LIMITED (an exempted company incorporated with limited liability in the Cayman Islands, with registration number 372789) (the “Borrower”);

THE SUBSIDIARIES of the Borrower listed in Part 1 of Schedule 1 as guarantors (the “Guarantors”);

THE ENTITY listed in Part 2 Schedule 1 as lender (the “Original Lender”);

CREDIT SUISSE INTERNATIONAL as agent of the other Finance Parties (the “Agent”);

CREDIT SUISSE INTERNATIONAL as security trustee for the Secured Parties (the “Security Agent”); and

SIG-i CAPITAL AG as arranger (the “Arranger”).

Definitions and interpretation

Definition

Column 1 - Time period

Column 2 - Accreted Principal Multiple

Column 1 – Time period

Column 2 – Add-on Multiple

an amount equal to the applicable Equity Valuation after deducting the Strike Price Valuation; and

the Starting Valuation.

the amount of its participation in any outstanding Loans; and

in relation to any proposed Utilisation, the amount of its participation in any Loans that are due to be made on or before the proposed Utilisation Date.

in relation to an EEA Member Country which has implemented, or which at any time implements, Article 55 BRRD, the relevant implementing law or regulation as described in the EU Bail-In Legislation Schedule from time to time; and

in relation to the United Kingdom, the UK Bail-In Legislation; and

in relation to any state other than such an EEA Member Country and the United Kingdom, any analogous law or regulation from time to time which requires contractual recognition of any Write-down and Conversion Powers contained in that law or regulation.

Column 1 – Time period

Column 2 – Base Multiple

marketable direct obligations issued or unconditionally guaranteed by the United States or any agency or any state of the United States or the United Kingdom having maturities of not more than one (1) year from the date of acquisition; and

commercial paper maturing no more than one (1) year after its creation and having the highest rating from either Standard & Poor’s Ratings Group or ▇▇▇▇▇’▇ Investors Service, Inc.

a new Holding Company of the Borrower being imposed for the purposes of a Flotation or Reorganisation;

the Rockley SPAC Merger;

the Rockley Share Exchange; or

a SPAC Listing.

the power (whether by way of ownership of shares, proxy, contract, agency or otherwise) to:

cast, or control the casting of, more than 30% of the maximum number of votes that might be cast at a general meeting of the Borrower;

appoint or remove all, or the majority, of the directors or other equivalent officers of the Borrower; or

give directions with respect to the operating and financial policies of the Borrower with which the directors or other equivalent officers of the Borrower are obliged to comply;

the holding beneficially of more than 30% of the issued share capital of the Borrower (excluding any part of that issued share capital that carries no right to participate beyond a specified amount in a distribution of either profits or capital).

in relation to an Original Lender, the amount set opposite its name under the heading “Commitment” in Schedule 1 (The Original Parties) and the amount of any other Commitment transferred to it under this Agreement; and

in relation to any other Lender, the amount of any Commitment transferred to it under this Agreement,

any Obligor or any of their advisers; or

another Finance Party, if the information was obtained by that Finance Party directly or indirectly from any Obligor or any of their advisers,

is or becomes public information other than as a direct or indirect result of any breach by that Finance Party of Clause 38 (Confidentiality); or

is identified in writing at the time of delivery as non-confidential by any Obligor or any of their advisers; or

is known by that Finance Party before the date the information is disclosed to it in accordance with paragraphs (A) or (B) above or is lawfully obtained by that Finance Party after that date, from a source which is, as far as that Finance Party is aware, unconnected with any Obligor and which, in either case, as far as that Finance Party is aware, has not been obtained in breach of, and is not otherwise subject to, any obligation of confidentiality.

a material disruption to those payment or communications systems or to those financial markets which are, in each case, required to operate in order for payments to be made in connection with the Facility (or otherwise in order for the transactions contemplated by the Finance Documents to be carried out) which disruption is not caused by, and is beyond the control of, any of the Parties; or

the occurrence of any other event which results in a disruption (of a technical or systems-related nature) to the treasury or payments operations of a Party preventing that, or any other Party:

from performing its payment obligations under the Finance Documents; or

from communicating with other Parties in accordance with the terms of the Finance Documents,

sections 1471 to 1474 of the Code or any associated regulations;

any treaty, law, guidance or regulation of any other jurisdiction, or relating to an intergovernmental agreement between the US and any other jurisdiction, which (in either case) facilitates the implementation of any law or regulation referred to in paragraph (A) above or any analogous provision of non-US law; or

any agreement pursuant to the implementation of any treaty, law or regulation referred to in paragraphs (A) or (B) above with the US Internal Revenue Service, the US government or any governmental or taxation authority in any other jurisdiction.

in relation to a “withholdable payment” described in section 1473(1)(A)(i) of the Code (which relates to payments of interest and certain other payments from sources within the US), 01 July 2014; or

in relation to a “passthru payment” described in section 1471(d)(7) of the Code not falling within paragraph (A) above, the first date from which such payment may become subject to a deduction or withholding required by FATCA.

monies owed to any banking, financial, lending or other similar institute or organisation;

any amount raised by acceptance under any acceptance credit facility or dematerialised equivalent;

any amount raised pursuant to any note purchase facility or the issue of bonds, notes, debentures, loan stock, commercial paper or any similar instrument;

indebtedness for monies borrowed or raised under any other transaction that has the commercial effect of borrowing;

the amount of any liability in respect of any Finance Lease;

receivables sold or discounted (other than any receivables to the extent they are sold on a non-recourse basis);

unpaid professional fees payable in respect of any of transactions contemplated by this Agreement on behalf of the Lender, unpaid accrued interest on any borrowing or indebtedness referred to in this definition of “Financial Indebtedness”, together with any prepayment premiums or other penalties, fees, expenses or breakage costs arising (or which would arise) in connection with the repayment of any such borrowing or indebtedness;

any amount raised under any other transaction (including any forward sale or purchase agreement) of a type not referred to in any other paragraph of this definition having the commercial effect of a borrowing;

any derivative transaction entered into in connection with protection against or benefit from fluctuation in any rate or price (and, when calculating the value of any derivative transaction, only the marked to market value (or, if any actual amount is due as a result of the termination or close-out of that derivative transaction, that amount) shall be taken into account);

any counter-indemnity obligation in respect of a guarantee, indemnity, bond, standby or documentary letter of credit or any other instrument issued by a bank or financial institution; and

the amount of any liability in respect of any guarantee or indemnity for any of the items referred to in paragraphs (A) to (H) above.

a successful application being made for the admission of any part of the share capital of the Borrower (or a new Holding Company of the Borrower) to the Official List maintained by the FCA and the admission of any part of the share capital of the Borrower to trading on the London Stock Exchange plc;

the grant of permission to deal in any part of the issued share capital of the Borrower (or a new Holding Company of the Borrower) on the New York Stock Exchange, the National Association of Securities Dealers Automated Quotations exchange (NASDAQ) or the Stock Exchange of Hong Kong (SEHK); or

the issued share capital of the Borrower is listed or quoted on any of the stock exchanges referred to in sub-paragraphs (A) or (B) above pursuant to the formation of the Rockley SPAC.

the principle that equitable remedies may be granted or refused at the discretion of a court and the limitation of enforcement by laws relating to insolvency, reorganisation and other laws generally affecting the rights of creditors;

the time barring of claims under the Limitation Acts, the possibility that an undertaking to assume liability for or indemnify a person against non-payment of UK stamp duty may be void and defences of set-off or counterclaim;

the principle that in certain circumstances Security granted by way of fixed charge may be recharacterised as a floating charge or that security interests purported to be constituted by an assignment may be recharacterised as a charge;

the principle that any provision for the payment of compensation or additional interest imposed pursuant to any relevant agreement may be held to be unenforceable on the grounds that it is a penalty and thus void;

the principle that an English court may not give effect to a provision dealing with the cost of litigation where the litigation is unsuccessful or the court itself has made an order for costs;

the principle that the legality, validity, binding nature or enforceability or any security under a security document which is not governed by the laws of jurisdiction where the asset or assets purported to be secured under that security document are situated may be flawed; and

similar principles, rights and defences under the laws of any relevant jurisdiction.

any Original Lender; and

any bank, financial institution, trust, fund or other entity which has become a Party as a “Lender” in accordance with Clause 21 (Changes to the Lenders),

the business, operations, property, condition (financial or otherwise) of any Obligor;

the ability of an Obligor to perform its payment obligations under the Finance Documents; or

subject to the Legal Reservations and the Perfection Requirements, the validity or enforceability of, or the effectiveness or ranking of any Security granted or purporting to be granted pursuant to any of, the Finance Documents or the rights or remedies or any Finance Party under any of the Finance Documents.

has gross assets, net assets or turnover (excluding intra-group items) representing 5%, or more of the gross assets, net assets or turnover of the Group, calculated on a consolidated basis; and

is a wholly owned subsidiary.

(subject to paragraph (C) below) if the numerically corresponding day is not a Business Day, that period shall end on the next Business Day in that calendar month in which that period is to end if there is one, or if there is not, on the immediately preceding Business Day;

if there is no numerically corresponding day in the calendar month in which that period is to end, that period shall end on the last Business Day in that calendar month; and

if an Interest Period begins on the last Business Day of a calendar month, that Interest Period shall end on the last Business Day in the calendar month in which that Interest Period is to end.

if a voluntary prepayment is made under Clause 7.2 (Voluntary Prepayment of Loans), 1.236x;

if a Par Value Exit occurs, the relevant corresponding Base Multiple as per the definition of “Base Multiple” in this Agreement;

if a Greater Value Exit occurs, the relevant corresponding Add-on Multiple as per the definition of “Add-on Multiple” in this Agreement; or

in the case of a repayment on the Maturity Date, 1.236x; and

in any other instances, any multiple referenced under the column headed “Relevant Amount” pursuant to Schedule 10 (Pricing).

its jurisdiction of incorporation;

any jurisdiction in which any asset is situated which is subject to, or is intended to be subject to, any Security to be created by it pursuant to, or in connection with, the Finance Documents in favour of any Finance Party; and

any jurisdiction in which it conducts its business.

whose name is listed on, or is owned or controlled (in each case, directly or indirectly) by a person whose name is listed on, or acting on behalf of a person whose name is listed on, any Sanctions List;

that is located in, incorporated, organised or established under the laws of, or resident in a country or territory that is the target of countrywide or territory-wide Sanctions, or owned or controlled (in each case, directly or indirectly) by, or acting on behalf of, a person located in, incorporated, organised or established under the laws of, or resident under the laws of, a country or territory that is, or the government of which is, subject to countrywide or territory-wide Sanctions;

that is a governmental agency, authority or body or state-owned enterprise of any country or territory that is subject to Sanctions;

that is otherwise the target of any countrywide or territory-wide Sanctions;

whose property, or who is owned or controlled (in each case, directly or (to the Borrower’s knowledge) indirectly) by a person whose property, or who is acting on behalf of a person whose property, in each case, has been blocked, or is subject to seizure, forfeiture or confiscation under any applicable anti-terrorism law; or

with which any Finance Party is prohibited from dealing or otherwise engaging in any transaction pursuant to Sanctions.

the United Nations;

the United States of America;

the European Union;

the United Kingdom of Great Britain and Northern Ireland;

the State Secretariat for Economic Affairs SECO; and

the governments and official institutions or agencies of any of paragraphs (A) to (E) above, including OFAC, the US Department of State, and Her Majesty’s Treasury.

the “Specially Designated Nationals List” and the “Consolidated Non-SDN List” each administered and enforced by OFAC; and

the “Financial Sanctions: Consolidated List of Targets” administered and enforced by Her Majesty’s Treasury,

the Rockley SPAC; or

any special purposes acquisition company formed for the purpose of raising capital through an initial public offering of equity and using those funds to acquire an operating business and the shares of which are listed on the New York Stock Exchange or other exchange.

the proposed Transfer Date specified in the relevant Assignment Agreement or Transfer Certificate; and

the date on which the Agent executes the relevant Assignment Agreement or Transfer Certificate.

a Borrower which is resident for tax purposes in the US; or

an Obligor some or all of whose payments under the Finance Documents are from sources within the US for US federal income tax purposes.

any tax imposed in compliance with the Council Directive of 28 November 2006 on the common system of value added tax (EC Directive 2006/112);

in relation to the United Kingdom, value added tax imposed by the Value Added Tax ▇▇▇ ▇▇▇▇ and legislation and regulations supplemental thereto; and

any other tax of a similar nature, whether imposed in the United Kingdom or a member state of the European Union in substitution for, or levied in addition to, such tax referred to in paragraphs (A) or (B) above, or imposed elsewhere.

in relation to any Bail-In Legislation described in the EU Bail-In Legislation Schedule from time to time, the powers described as such in relation to that Bail-In Legislation in the EU Bail-In Legislation Schedule;

in relation to the UK Bail-In Legislation, any powers under that UK Bail-In Legislation to cancel, transfer or dilute shares issued by a person that is a bank or investment firm or other financial institution or affiliate of a bank, investment firm or other financial institution, to cancel, reduce, modify or change the form of a liability of such a person or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that UK Bail-In Legislation that are related to or ancillary to any of those powers; and

in relation to any other applicable Bail-In Legislation:

any powers under that Bail-In Legislation to cancel, transfer or dilute shares issued by a person that is a bank or investment firm or other financial institution or affiliate of a bank, investment firm or other financial institution, to cancel, reduce, modify or change the form of a liability of such a person or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers; and

any similar or analogous powers under that Bail-In Legislation.

Construction

Unless a contrary indication appears, any reference in this Agreement to:

the “Agent”, the “Borrower” any “Finance Party”, any “Lender”, any “Arranger”, any “Obligor”, any “Party” or any “Security Agent” shall be construed so as to include its successors in title, permitted assigns and permitted transferees to, or of, its rights and/or obligations under the Finance Documents and, in the case of the Security Agent, any person for the time being appointed as Security Agent or Security Agents in accordance with the Finance Documents;

“assets” includes present and future properties, revenues and rights of every description;

a “Finance Document” or any other agreement or instrument is a reference to that Finance Document or other agreement or instrument as amended, novated, supplemented, extended or restated;

“indebtedness” includes any obligation (whether incurred as principal or as surety) for the payment or repayment of money, whether present or future, actual or contingent;

a “person” includes any individual, firm, company, corporation, government, state or agency of a state or any association, trust, joint venture, consortium, partnership or other entity (whether or not having separate legal personality);

a “regulation” includes any regulation, rule, official directive, request or guideline (whether or not having the force of law but if not having the force of law being of the type that the relevant person is obliged to comply with) of any governmental, intergovernmental or supranational body, agency, department or of any regulatory, self-regulatory or other authority or organisation;

a provision of law is a reference to that provision as amended or re-enacted;

any matter “including” specific instances or examples of such matter shall be construed without limitation to the generality of that matter (and references to “includes” and “including” shall be construed accordingly);

a time of day is a reference to London time; and

any references to “this Agreement” means the Original Facility Agreement and as more recently amended and restated by way of an Amendment and Restatement Deed dated on or around the Second Effective Date (and as may be further amended and/or restated, novated, supplemented or extended from time to time).

The determination of the extent to which a rate is “for a period equal in length” to an Interest Period shall disregard any inconsistency arising from the last day of that Interest Period being determined pursuant to the terms of this Agreement.

Clause and schedule headings are for ease of reference only.

Unless a contrary indication appears, a term used in any other Finance Document or in any notice given under or in connection with any Finance Document has the same meaning in that Finance Document or notice as in this Agreement.

A reference to the singular includes the plural and vice versa.

A Default (other than an Event of Default) is “continuing” if it has not been remedied or waived and an Event of Default is “continuing” if it has not been remedied to the satisfaction of the Agent or waived in writing by the Agent.

Currency symbols and definitions

Third party rights

The facility

The Facility

[Reserved]

Finance Parties’ rights and obligations

The obligations of each Finance Party under the Finance Documents are several. Failure by a Finance Party to perform its obligations under the Finance Documents does not affect the obligations of any other Party under the Finance Documents. No Finance Party is responsible for the obligations of any other Finance Party under the Finance Documents.

The rights of each Finance Party under or in connection with the Finance Documents are separate and independent rights and any debt arising under the Finance Documents to a Finance Party from an Obligor is a separate and independent debt in respect of which a Finance Party shall be entitled to enforce its rights in accordance with Clause 2.3(c). The rights of each Finance Party include any debt owning to that Finance Party under the Finance Documents and, for the avoidance of doubt, any part of a Loan or any other amount owed by an Obligor which relates to a Finance Party’s participation in a Facility or its role under a Finance Document (including any such amount payable to the Agent on its behalf) is a debt owing to that Finance Party by that Obligor.

A Finance Party may, except as specifically provided in the Finance Documents, separately enforce its rights under or in connection with the Finance Documents.

[Reserved]

Obligors’ Agent

Each Obligor (other than the Borrower) by its execution of this Agreement, an Accession Deed or the Amendment and Restatement Deed irrevocably appoints the Borrower (acting through one or more authorised signatories) to act on its behalf as its agent in relation to the Finance Documents and irrevocably authorises:

the Borrower on its behalf to supply all information concerning itself contemplated by this Agreement to the Finance Parties and to give all notices and instructions (including, in the case of the Borrower, Utilisation Requests), to make such agreements and to effect the relevant amendments, supplements and variations capable of being given, made or effected by any Obligor notwithstanding that they may affect the Obligor, without further reference to or the consent of that Obligor; and

each Finance Party to give any notice, demand or other communication to that Obligor pursuant to the Finance Documents to the Borrower,

Every act, omission, agreement, undertaking, settlement, waiver, amendment, supplement, variation, notice or other communication given or made by the Obligors’ Agent or given to the Obligors’ Agent under any Finance Document on behalf of another Obligor or in connection with any Finance Document (whether or not known to any other Obligor and whether occurring before or after such other Obligor became an Obligor under any Finance Document) shall be binding for all purposes on that Obligor as if that Obligor had expressly made, given or concurred with it. In the event of any conflict between any notices or other communications of the Obligors’ Agent and any other Obligor, those of the Obligors’ Agent shall prevail.

Purpose

Purpose

The Borrower shall apply all amounts borrowed or assumed by it under the Facility towards its general corporate and working capital purposes.

Monitoring

Conditions of utilisation

Initial conditions precedent

The Borrower may not deliver a Utilisation Request unless the Agent has received all of the documents and other evidence listed Schedule 2 (Conditions precedent to Initial Utilisation) in form and substance satisfactory to the Agent. The Agent shall notify the Borrower and the Lenders promptly upon being so satisfied.

Other than to the extent that the Majority Lenders notify the Agent in writing to the contrary before the Agent gives the notification described in Clause 4.1(a), the Lenders authorise (but do not require) the Agent to give that notification. The Agent shall not be liable for any damages, costs or losses whatsoever as a result of giving any such notification.

Further conditions precedent

no Default is continuing or would result from the proposed Loan; and

the Repeating Representations to be made by each Obligor are true in all material respects.

Maximum number of Loans

The Borrower may not deliver a Utilisation Request if as a result of the proposed Utilisation two or more Loans would be outstanding.

The Borrower may not request that a Loan be divided if, as a result of the proposed division, two or more Loans would be outstanding.

Utilisation

Delivery of a Utilisation Request

Completion of a Utilisation Request

Each Utilisation Request is irrevocable and will not be regarded as having been duly completed unless:

the proposed Utilisation Date is a Business Day within the Availability Period and not less than 5 Business Days after the date of the Utilisation Request (or such other time as agreed between the Borrower and the Arranger); and

the currency and amount of the Utilisation comply with Clause 5.3 (Currency and amount).

Only one Loan may be requested in each Utilisation Request.

Currency and amount

The currency specified in a Utilisation Request must be dollars.

The amount of the proposed Loan must be an amount which is not more than the Available Facility and which is a minimum of the aggregate of the Commitments or, if less, the Available Facility.

Lenders’ participation

If the conditions set out in this Agreement have been met, each Lender shall make its participation in each Loan available by the Utilisation Date.

The amount of each Lender’s participation in each Loan will be equal to the proportion borne by its Available Commitment to the Available Facility immediately prior to making the Loan.

The Agent shall notify each Lender of the amount of each Loan and the amount of its participation in that Loan.

Cancellation of Commitment

Repayment

Repayment of Loans

The Borrower shall repay the aggregate amount of the Loans utilised or assumed by it in instalments by repaying on each Repayment Date an amount equal to each Repayment Instalment indicated below and which reduces the Principal Amount by the amount set out opposite that Repayment Date for each corresponding Repayment Instalment, subject always to no Qualified Exit occurring at the time:

Reduction of

Principal Amount

31 December 2021

31 March 2022

Maturity Date

If the Agent receives a payment for applicable amounts due in respect of a Repayment Instalment that is insufficient to discharge the full Repayment Instalment due on a specific Repayment Date, the Agent shall apply that payment towards the obligations of the Borrower under the Finance Documents in the order stipulated under Clause 31.5 (Partial payments), provided further that, for the purposes of Clause 31.5 (Partial payments) and this Clause 6 (Repayment), the difference between the Repayment Instalment and the Reduction of Principal Amount paid shall be treated as a fee, interest or commission as per Clause 31.5(A)(2) (Partial payments) and thus shall be applied prior to any payments of principal.

Certain provisions of this Agreement are expressed to apply following the Maturity Date. For the avoidance of doubt, such provisions shall only apply to the extent that this Agreement is extended beyond the Maturity Date (any such extension being subject to the absolute discretion of the parties hereto).

Reborrowing

Prepayment and cancellation

Illegality

that Lender shall promptly notify the Agent upon becoming aware of that event;

upon the Agent notifying the Borrower, each Available Commitment of that Lender will be immediately cancelled; and

to the extent that the Lender’s participation has not been transferred pursuant to Clause 7.3(D), the Borrower shall repay that Lender its Outstanding Balance Owed based on its participation in the Loans made to the Borrower on the last day of the Interest Period for each Loan occurring after the Agent has notified the Borrower or, if earlier, the date specified by the Lender in the notice delivered to the Agent (being no earlier than the last day of any applicable grace period permitted by law) and that Lender’s corresponding Commitment(s) shall be cancelled in the amount of the participations repaid.

Voluntary prepayment of Loans

Subject to the remainder of this Clause, prior to the Maturity Date, the Borrower may prepay the whole, but not part, of the Loans, plus the applicable Repayment Premium payable.

No prepayment may be made under this Clause 7.2 at any time after the Borrower has delivered a Qualified Exit Notice to the Agent which remains outstanding or if the board of directors of the Borrower reasonably considers that a Qualified Exit will take place within 3 Months of the proposed date upon which the prepayment is intended to be made.

Right of replacement or repayment and cancellation in relation to a single Lender

If:

any sum payable to any Lender by an Obligor is required to be increased under Clause 11.2(C); or

any Lender claims indemnification from the Borrower under Clause 11.3 (Tax indemnity),

On receipt of a notice of cancellation referred to in Clause 7.3(A), the Commitment of that Lender shall immediately be reduced to zero.

On the last day of each Interest Period which ends after the Borrower has given notice of cancellation under Clause 7.3(A) (or, if earlier, the date specified by the Borrower in that notice), the Borrower shall repay an amount equal to the Outstanding Balance Owed of such Lender’s participation in the outstanding Loans.

If:

any of the circumstances set out in Clause 7.3(A) apply to a Lender; or

an Obligor becomes obliged to pay any amount in accordance with Clause 7.1 (Illegality) to any Lender,

The replacement of a Lender pursuant to Clause 7.3(D) shall be subject to the following conditions:

the Borrower shall have no right to replace the Agent;

neither the Agent nor any Lender (or the Arranger, on behalf of the Original Lender) shall have any obligation to find a replacement Lender;

in no event shall the Lender replaced under Clause 7.3(D) be required to pay or surrender any of the fees received by such Lender pursuant to the Finance Documents; and

the Lender shall only be obliged to transfer its rights and obligations pursuant to Clause 7.3(D) once it is satisfied that it has complied with all necessary “know your customer” or other similar checks under all applicable laws and regulations in relation to that transfer.

A Lender (or in the case of the Original Lender, the Arranger) shall perform the checks described in Clause 7.3(E)(4) as soon as reasonably practicable following delivery of a notice referred to in Clause 7.3(D) and shall notify the Agent and the Borrower when it is satisfied that it has complied with those checks.

Mandatory prepayment and cancellation

For the purpose of this Clause 7.4:

a Change of Control; or

the sale of all or substantially all of the assets of the Borrower whether in a single transaction or a series of related transactions.

Upon the occurrence of a Qualified Exit, the Facility will be immediately cancelled and shall immediately cease to be available for further utilisation and an amount equal to the applicable Exit Value shall become due and payable upon completion of a Non-Qualified Trade Sale.    The Borrower shall give the Agent written notice of a Qualified Exit by delivering a notice to the Agent and the Arranger stipulating the relevant date on which a Qualified Exit will occur, including the terms and timelines of the planned Qualified Exit (the “Qualified Exit Notice”).

[Reserved]

Restrictions

Any notice of cancellation or prepayment given by any Party under this Clause 7 (Prepayment and cancellation) shall be irrevocable and, unless a contrary indication appears in this Agreement, shall specify the date or dates upon which the relevant cancellation or prepayment is to be made and the amount of that cancellation or prepayment.

Any prepayment under this Agreement in respect of amounts due under Clause 20.15 (Acceleration) shall be made on the basis of the Outstanding Balance Owed or, where or Clause 20.16 (Acceleration upon an Insolvency Event) applies, pursuant to that clause.

The Borrower shall not repay or prepay all or any part of the Loans or cancel all or any part of the Commitments except at the times and in the manner expressly provided for in this Agreement.

No amount of the Total Commitments cancelled under this Agreement may be subsequently reinstated.

If the Agent receives a notice under this Clause 7 (Prepayment and cancellation) it shall promptly forward a copy of that notice to either the Borrower or the affected Lender (and in the case of the Original Lender which is an affected Lender, the Arranger), as appropriate.

If all or part of any Lender’s participation in a Loan is repaid or prepaid an amount of that Lender’s Commitment (equal to the amount of the participation which is repaid or prepaid) will be deemed to be cancelled on the date of repayment or prepayment.

Conversion

Conversion prior to a SPAC Listing

On the SPAC Completion Date, an amount equal to the SPAC Conversion Amount will be discharged in full by way of a conversion into and in consideration for the issue of SPAC Conversion Shares issued pro rata to each Lender (or instead directly to a person designated by the Lender to receive such shares instead of the relevant Lender (the “Lender Designate”)) in accordance with the SPAC Conversion Amount owed to each Lender.

The SPAC Conversion Shares will be issued to each Lender (or if applicable, directly to its Lender Designate) accordingly on (and in any event no later than) the SPAC Completion Date and in accordance with Clause 8.2 (Procedure - SPAC Conversion Shares) (the “SPAC Conversion Date”).

All Principal Amounts (together with all interest accrued) less an amount equal to the SPAC Conversion Amount once the SPAC Conversion Date has occurred, shall remain due and payable in accordance with the terms of this Agreement.

Any interest accrued on the SPAC Conversion Amount (the “Roll Over Interest”) falling due and payable on the SPAC Conversion Date shall rollover and be paid in cash on the next interest payment date following the SPAC Conversion Date in accordance with Clause 9.2 (Payment of Interest).

Procedure - SPAC Conversion Shares

On the SPAC Conversion Date, the SPAC Conversion Amount will be automatically converted into and utilised as consideration for the number of shares of the Borrower (such shares being the SPAC Conversion Shares) on par at the same effective price paid to the then existing shareholders of the Borrower (the “SPAC Conversion”), with the number SPAC Conversion Shares to be issued as confirmed by the Parties in accordance with Clause 8.2(B) below and no further action shall be required of the Lenders, a Lender Designate or any of the other Finance Parties in connection with the SPAC Conversion.

Prior to (and no later than) the SPAC Conversion Date, the Borrower will calculate the exact number of SPAC Conversion Shares to be issued to the Lender or a Lender Designate in accordance with Clause 8.2(A) above, and the Borrower shall confirm the number of SPAC Conversion Shares to be issued in accordance with Clause 8.2(A) above by sending a notice detailing such number of shares in writing substantially in the form as provided in Schedule 11 (SPAC Conversion Share Notice), which the Arranger will acknowledge, as soon as reasonably practicable, and in any event no later than 2 Business Days’ following receipt of such notice in writing from the Borrower, by countersigning the acknowledgment to the notice, substantially in the form as provided in Schedule 11 (SPAC Conversion Share Notice).

Each Lender shall be deemed irrevocably to authorise and instruct the Borrower to apply the redemption monies equal to the SPAC Conversion Amount that is payable to the relevant Lender in subscribing (for the relevant Lender or its Lender Designate, as applicable) for the SPAC Conversion Shares on conversion of the SPAC Conversion Amount and the Borrower shall procure that the SPAC Conversion Shares shall be issued and allotted by the Borrower as fully paid up on the relevant SPAC Conversion Date, and if so required by or deemed necessary or desirable under the law of the Cayman Islands or any other applicable laws, any certificates for such shares shall be dispatched to the persons entitled to them at their own risk.

The Borrower shall, on the SPAC Conversion Date:

issue (or procure the issue) to the Lenders (or their Lender Designate(s), as applicable) the number of shares due in accordance with the provisions of this Clause 8 (Conversion);

execute (or procure the execution of) such documents as may be required in connection with the issue of the shares to the Lenders (or their Lender Designate(s), as applicable); and

make (or procure the making of by the Transfer Agent) the appropriate entries in the Borrower’s register of members in respect of the issue of shares to the Lenders (or their Lender Designate(s), as applicable).

The Principal Amount shall automatically be reduced by an amount corresponding to the SPAC Conversion Amount when (but not before): (i) the Lenders (or their Lender Designate(s), as applicable) have been registered in the register of members of the Borrower and all relevant book entries have been completed by the Transfer Agent; and (ii) the Lenders (or their Lender Designate(s) as applicable) shall have received share certificates representing the shareholding of the Lenders if so required or deemed necessary or desirable under the laws of the Cayman Islands or any other applicable law.

The Lender Designate

SPAC Lock-up Period

Costs relating to the SPAC Conversion Shares

Without prejudice to any other provision in this Agreement, all reasonable costs of any professional advisers, all expenses and any taxes and stamp duties incurred in connection with the formation of the Rockley SPAC and/or the creation, allotment and issuance of shares (including notary and other legal fees), including the transfer of shares from a Lender to Eleuthera SPC or any person designated by them, shall be borne by the Borrower.

To the extent that any Finance Party incurs such costs or expenses or taxes or stamp duties as a result of the formation of the Rockley SPAC and/or the creation, allotment, issuance and/or transfer of shares, the Borrower shall, from time to time, on demand by the Agent, indemnify the Finance Parties on a full indemnity basis against such costs or expenses or taxes together with any VAT thereon incurred.

Interest

Calculation of interest

Payment of interest

Default interest

Subject to Clause 9.4 (Interest after the Maturity Date), if the Borrower fails to pay any amount payable by it under a Finance Document on its due date, interest shall accrue based on the Outstanding Balance Owed at a rate which is 3 per cent. per annum higher than the rate which would have been payable if the overdue amount had, during the period of non-payment, constituted a Loan in the currency of the overdue amount for successive Interest Periods. Any interest accruing under this Clause 9.3 shall be payable by the Borrower within 3 Business Days of written demand by the Agent.

Default interest (if unpaid) arising on an overdue amount will be compounded with the overdue amount at the end of each Interest Period applicable to that overdue amount but will remain due and payable.

Interest after the Maturity Date

Notification of rates of interest

Interest periods

Interest Periods

Subject to Clauses 10.1(B) and 10.1(C) below, each Interest Period will, subject to Clause 10.2 (Changes to Interest Periods), be three Months.

An Interest Period for a Loan shall not extend beyond the Maturity Date.

Each Interest Period for a Loan shall start on the Utilisation Date or (if already made) on the last day of its preceding Interest Period.

Changes to Interest Periods

The Agent may shorten the Interest Period for a Loan to ensure that it ends on the same day as another Loan which is outstanding.

If the Agent makes any change to an Interest Period referred to in this Clause 10.2, it shall promptly notify the Borrower.

Non-Business Days

Consolidation and division of Loans

relate to Loans; and

end on the same date,

Tax gross-up and indemnities

Definitions

In this Agreement:

where it relates to a Treaty Lender that is an Original Lender, contains the scheme reference number and jurisdiction of tax residence stated opposite that Lender’s name in Part 2 of Schedule 1 (The Original Parties), and

where the Borrower is an Original Borrower, is filed with HM Revenue & Customs within 30 days of the date of this Agreement; or

where the Borrower is an Additional Borrower, is filed with HM Revenue & Customs within 30 days of the date on which that Borrower becomes an Additional Borrower; or

where it relates to a Treaty Lender that is not an Original Lender, contains the scheme reference number and jurisdiction of tax residence stated in respect of that Lender in the documentation which it executes on becoming a Party as a Lender; and

where the Borrower is a Borrower as at the date on which that Treaty Lender becomes a Party as a Lender, is filed with HM Revenue & Customs within 30 days of that date; or

where the Borrower is not a Borrower as at the date on which that Treaty Lender becomes a Party as a Lender, is filed with HM Revenue & Customs within 30 days of the date on which that Borrower becomes an Additional Borrower.

a Lender which is beneficially entitled to interest payable to that Lender in respect of an advance under a Finance Document and is:

a Lender:

which is a bank (as defined for the purpose of section 879 of the ITA) making an advance under a Finance Document and is within the charge to United Kingdom corporation tax as respects any payments of interest made in respect of that advance or would be within such charge as respects such payments apart from section 18A of the CTA; or

in respect of an advance made under a Finance Document by a person that was a bank (as defined for the purpose of section 879 of the ITA) at the time that that advance was made and within the charge to United Kingdom corporation tax as respects any payments of interest made in respect of that advance; or

a Lender which is:

a company resident in the United Kingdom for United Kingdom tax purposes;

a partnership each member of which is:

a company so resident in the United Kingdom; or

a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account in computing its chargeable profits (within the meaning of section 19 of the CTA) the whole of any share of interest payable in respect of that advance that falls to it by reason of Part 17 of the CTA;

a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account interest payable in respect of that advance in computing the chargeable profits (within the meaning of section 19 of the CTA) of that company; or

a Treaty Lender; or

a Lender which is a building society (as defined for the purpose of section 880 of the ITA) making an advance under a Finance Document.

a company resident in the United Kingdom for United Kingdom tax purposes;

a partnership each member of which is:

a company so resident in the United Kingdom; or

a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account in computing its chargeable profits (within the meaning of section 19 of the CTA) the whole of any share of interest payable in respect of that advance that falls to it by reason of Part 17 of the CTA; or

a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account interest payable in respect of that advance in computing the chargeable profits (within the meaning of section 19 of the CTA) of that company.

is treated as a resident of a Treaty State for the purposes of the Treaty;

does not carry on a business in the United Kingdom through a permanent establishment with which that Lender’s participation in the Loan is effectively connected.

Unless a contrary indication appears, in this Clause 11 (Tax gross-up and indemnities) a reference to “determines” or “determined” means a determination made in the absolute discretion of the person making the determination.

Tax gross-up

Each Obligor shall make all payments to be made by it without any Tax Deduction, unless a Tax Deduction is required by law.

The Borrower shall promptly upon becoming aware that an Obligor must make a Tax Deduction (or that there is any change in the rate or the basis of a Tax Deduction) notify the Agent accordingly. Similarly, a Lender shall notify the Agent on becoming so aware in respect of a payment payable to that Lender. If the Agent receives such notification from a Lender (or the Arranger on behalf of the Original Lender) it shall notify the Borrower and that Obligor.

If a Tax Deduction is required by law to be made by an Obligor, the amount of the payment due from that Obligor shall be increased to an amount which (after making any Tax Deduction) leaves an amount equal to the payment which would have been due if no Tax Deduction had been required.

A payment shall not be increased under Clause 11.2(C) by reason of a Tax Deduction on account of Tax imposed by the United Kingdom, if on the date on which the payment falls due any of the following apply:

the payment could have been made to the relevant Lender without a Tax Deduction if the Lender had been a Qualifying Lender, but on that date that Lender is not or has ceased to be a Qualifying Lender other than as a result of any change after the date it became a Lender under this Agreement in (or in the interpretation, administration, or application of) any law or Treaty or any published practice or published concession of any relevant taxing authority; or

the relevant Lender is a Qualifying Lender solely by virtue of paragraph (1)(b) of the definition of Qualifying Lender; and:

an officer of HM Revenue & Customs has given (and not revoked) a direction (a “Direction”) under section 931 of the ITA which relates to the payment and that Lender has received from the Obligor making the payment or from the Borrower a certified copy of that Direction; and

the payment could have been made to the Lender without any Tax Deduction if that Direction had not been made; or

the relevant Lender is a Qualifying Lender solely by virtue of paragraph (1)(b) of the definition of Qualifying Lender and:

the relevant Lender has not given a Tax Confirmation to the Borrower; and

the payment could have been made to the Lender without any Tax Deduction if the Lender had given a Tax Confirmation to the Borrower, on the basis that the Tax Confirmation would have enabled the Borrower to have formed a reasonable belief that the payment was an “excepted payment” for the purpose of section 930 of the ITA; or

the relevant Lender is a Treaty Lender and the Obligor making the payment is able to demonstrate that the payment could have been made to the Lender without the Tax Deduction had that Lender complied with its obligations under Clause 11.3 (Tax indemnity) or Clause 11.2(H).

If an Obligor is required to make a Tax Deduction, that Obligor shall make that Tax Deduction and any payment required in connection with that Tax Deduction within the time allowed and in the minimum amount required by law.

Within thirty days of making either a Tax Deduction or any payment required in connection with that Tax Deduction, the Obligor making that Tax Deduction shall deliver to the Agent for the Finance Party entitled to the payment a statement under section 975 of the ITA or other evidence reasonably satisfactory to that Finance Party that the Tax Deduction has been made or (as applicable) any appropriate payment paid to the relevant taxing authority.

Subject to Clause 11.2(G)(2) and Clause 11.2(G)(3), a Treaty Lender and each Obligor which makes a payment to which that Treaty Lender is entitled shall co-operate in completing any procedural formalities necessary for that Obligor to obtain authorisation to make that payment without a Tax Deduction.

Nothing in Clause 11.2(G)(1) shall require a Treaty Lender to:

register under the HMRC DT Treaty Passport scheme; or

apply the HMRC DT Treaty Passport scheme to any Utilisation if it has so registered.

A Treaty Lender which is an Original Lender and that holds a passport under the HMRC DT Treaty Passport scheme, and which wishes that scheme to apply to this Agreement, shall confirm its scheme reference number and its jurisdiction of tax residence opposite its name in Schedule 1 (The Original Parties); and

a Treaty Lender which is not an Original Lender and that holds a passport under the HMRC DT Treaty Passport scheme, and which wishes that scheme to apply to this Agreement, shall confirm its scheme reference number and its jurisdiction of tax residence in the documentation which it executes on becoming a Party as a Lender, and, having done so, that Lender shall automatically be deemed to have discharged all its obligations and responsibilities pursuant to Clause 11.2(G)(1), subject to Clause 11.2(H)

If a Lender has confirmed its scheme reference number and its jurisdiction of tax residence in accordance with Clause 11.2(G)(3):

such confirmation shall constitute notification by such Lender to the Borrower that the Lender wishes the HMRC DT Treaty Passport scheme to apply to this Agreement and that pursuant to such scheme the Borrower must comply with its obligations under Clause 11.2(H)(2); and

the Borrower shall, to the extent that such a Lender is a Lender under a Facility made available to the Borrower pursuant to Clause 2.1 (The Facility), file a duly completed Form DTTP2 in respect of such Lender with HM Revenue & Customs within 30 days of the date on which such Lender became a Party as a Lender (and in any event by no later than 30 working days prior to the first date on which a payment of interest falls due under this Agreement).

If a Lender has confirmed its scheme reference number and its jurisdiction of tax residence in accordance with paragraph (G)(2) above and a Borrower making a payment to that Lender has made a Borrower DTTP Filing in respect of that Lender but:

that Borrower DTTP Filing has been rejected by HM Revenue & Customs;

HM Revenue & Customs has not given the Borrower authority to make payments to that Lender without a Tax Deduction within 30 days of the date of the Borrower DTTP Filing; or

HM Revenue & Customs has given the Borrower authority to make payments to that Lender without a Tax Deduction but such authority has subsequently been revoked or expired,

If a Lender has not confirmed its scheme reference number and jurisdiction of tax residence in accordance with Clause 11.2(G)(3), no Obligor shall make a Borrower DTTP Filing or file any other form relating to the HMRC DT Treaty Passport scheme in respect of that Lender’s Commitment or its participation in any Loan unless the Lender otherwise agrees in writing.

The Borrower shall, promptly on making a Borrower DTTP Filing, deliver a copy of (i) that Borrower DTTP Filing and (ii) (upon receipt from HMRC) the applicable treaty clearance letter, in each case to the Agent for delivery to the relevant Lender.

A UK Non-Bank Lender which is an Original Lender gives a Tax Confirmation to the Borrower by entering into this Agreement.

A UK Non-Bank Lender shall promptly notify the Borrower and the Agent if there is any change in the position from that set out in the Tax Confirmation.

Tax indemnity

The Borrower shall (within three Business Days of demand by the Agent) pay to a Protected Party an amount equal to the loss, liability or cost which that Protected Party determines will be or has been (directly or indirectly) suffered for or on account of Tax by that Protected Party in respect of a Finance Document.

Clause 11.3(A) shall not apply:

with respect to any Tax assessed on a Finance Party:

under the law of the jurisdiction in which that Finance Party is incorporated or, if different, the jurisdiction (or jurisdictions) in which that Finance Party is treated as resident for tax purposes; or

under the law of the jurisdiction in which that Finance Party is located in respect of amounts received or receivable in that jurisdiction,

to the extent a loss, liability or cost:

is compensated for by an increased payment under Clause 11.2 (Tax gross-up);

would have been compensated for by an increased payment under Clause 11.2 (Tax gross-up) but was not so compensated solely because one of the exclusions in Clause 11.2(C) (Tax gross-up) applied; or

relates to a FATCA Deduction required to be made by a Party.

A Protected Party making, or intending to make a claim under Clause 11.3(A) shall promptly notify the Agent of the event which will give, or has given, rise to the claim, following which the Agent shall notify the Borrower.

A Protected Party shall, on receiving a payment from an Obligor under this Clause 11.3 (Tax indemnity), notify the Agent.

Tax Credit

a Tax Credit is attributable to an increased payment of which that Tax Payment forms part, to that Tax Payment or to a Tax Deduction in consequence of which that Tax Payment was required; and

that Finance Party has obtained and utilised that Tax Credit,

Lender status confirmation

not a Qualifying Lender;

a Qualifying Lender (other than a Treaty Lender); or

a Treaty Lender.

Stamp taxes

VAT

All amounts expressed to be payable under a Finance Document by any Party to a Finance Party which (in whole or in part) constitute the consideration for any supply for VAT purposes are deemed to be exclusive of any VAT which is chargeable on that supply, and accordingly, subject to Clause 11.7(B), if VAT is or becomes chargeable on any supply made by any Finance Party to any Party under a Finance Document and such Finance Party is required to account to the relevant tax authority for the VAT, that Party must pay to such Finance Party (in addition to and at the same time as paying any other consideration for such supply) an amount equal to the amount of the VAT (and such Finance Party must promptly provide an appropriate VAT invoice to that Party).

If VAT is or becomes chargeable on any supply made by any Finance Party (the “Supplier”) to any other Finance Party (the “Recipient”) under a Finance Document, and any Party other than the Recipient (the “Relevant Party”) is required by the terms of any Finance Document to pay an amount equal to the consideration for that supply to the Supplier (rather than being required to reimburse or indemnify the Recipient in respect of that consideration):

(where the Supplier is the person required to account to the relevant tax authority for the VAT) the Relevant Party must also pay to the Supplier (at the same time as paying that amount) an additional amount equal to the amount of the VAT. The Recipient must (where this Clause 11.7(B)(1) applies) promptly pay to the Relevant Party an amount equal to any credit or repayment the Recipient receives from the relevant tax authority which the Recipient reasonably determines relates to the VAT chargeable on that supply; and

(where the Recipient is the person required to account to the relevant tax authority for the VAT) the Relevant Party must promptly, following demand from the Recipient, pay to the Recipient an amount equal to the VAT chargeable on that supply but only to the extent that the Recipient reasonably determines that it is not entitled to credit or repayment from the relevant tax authority in respect of that VAT.

Where a Finance Document requires any Party to reimburse or indemnify a Finance Party for any cost or expense, that Party shall reimburse or indemnify (as the case may be) such Finance Party for the full amount of such cost or expense, including such part thereof as represents VAT, save to the extent that such Finance Party reasonably determines that it is entitled to credit or repayment in respect of such VAT from the relevant tax authority.

Any reference in this Clause 11.7 (VAT) to any Party shall, at any time when such Party is treated as a member of a group for VAT purposes, include (where appropriate and unless the context otherwise requires) a reference to any member of such group which is responsible for accounting for, or paying, VAT on behalf of such group, or on behalf of any or all of the members thereof.

In relation to any supply made by a Finance Party to any Party under a Finance Document, if reasonably requested by such Finance Party, that Party must promptly provide such Finance Party with details of that Party’s VAT registration and such other information as is reasonably requested in connection with such Finance Party’s VAT reporting requirements in relation to such supply.

FATCA information

Subject to Clause 11.8(C), each Party shall, within ten Business Days of a reasonable request by another Party:

confirm to that other Party whether it is:

a FATCA Exempt Party; or

not a FATCA Exempt Party;

supply to that other Party such forms, documentation and other information relating to its status under FATCA as that other Party reasonably requests for the purposes of that other Party’s compliance with FATCA; and

supply to that other Party such forms, documentation and other information relating to its status as that other Party reasonably requests for the purposes of that other Party’s compliance with any other law, regulation, or exchange of information regime.

If a Party confirms to another Party pursuant to Clause 11.8(A)(1) that it is a FATCA Exempt Party and it subsequently becomes aware that it is not or has ceased to be a FATCA Exempt Party, that Party shall notify that other Party reasonably promptly.

Clause 11.8(A) shall not oblige any Finance Party to do anything, and Clause 11.8(A)(3) shall not oblige any other Party to do anything, which would or might in its reasonable opinion constitute a breach of:

any law or regulation;

any fiduciary duty; or

any duty of confidentiality.

If a Party fails to confirm whether or not it is a FATCA Exempt Party or to supply forms, documentation or other information requested in accordance with Clause 11.8(A)(1) or Clause 11.8(A)(2) (including, for the avoidance of doubt, where Clause 11.8(C) applies), then such Party shall be treated for the purposes of the Finance Documents (and payments under them) as if it is not a FATCA Exempt Party until such time as the Party in question provides the requested confirmation, forms, documentation or other information.

If the Borrower is a US Tax Obligor or the Agent reasonably believes that its obligations under FATCA or any other applicable law or regulation require it, each Lender shall, within ten Business Days of:

where the Borrower is a US Tax Obligor and the relevant Lender is an Original Lender, the date of the Original Facility Agreement;

where the Borrower is a US Tax Obligor on a date on which any other Lender becomes a Party as a Lender, that date; or

where the Borrower is not a US Tax Obligor, the date of a request from the Agent,

a withholding certificate on Form W-8, Form W-9 or any other relevant form; or

any withholding statement or other document, authorisation or waiver as the Agent may require to certify or establish the status of such Lender under FATCA or that other law or regulation.

The Agent shall provide any withholding certificate, withholding statement, document, authorisation or waiver it receives from a Lender (or in the case of the Original Lender, the Arranger, acting on its behalf) pursuant to Clause 11.8(E) above to the Borrower.

If any withholding certificate, withholding statement, document, authorisation or waiver provided to the Agent by a Lender pursuant to Clause 11.8(E) above is or becomes materially inaccurate or incomplete, that Lender shall promptly update it and provide such updated withholding certificate, withholding statement, document, authorisation or waiver to the Agent unless it is unlawful for the Lender to do so (in which case the Lender shall promptly notify the Agent). The Agent shall provide any such updated withholding certificate, withholding statement, document, authorisation or waiver to the Borrower.

The Agent may rely on any withholding certificate, withholding statement, document, authorisation or waiver it receives from a Lender (or in the case of the Original Lender, the Arranger acting on its behalf) pursuant to Clause 11.8(E) or Clause 11.8(G) above without further verification. The Agent shall not be liable for any action taken by it under or in connection with Clause 11.8(E), Clause 11.8(F) or Clause 11.8(G).

FATCA Deduction

Each Party may make any FATCA Deduction it is required to make by FATCA, and any payment required in connection with that FATCA Deduction, and no Party shall be required to increase any payment in respect of which it makes such a FATCA Deduction or otherwise compensate the recipient of the payment for that FATCA Deduction.

Each Party shall promptly, upon becoming aware that it must make a FATCA Deduction (or that there is any change in the rate or the basis of such FATCA Deduction), notify the Party to whom it is making the payment and, in addition, shall notify the Borrower and the Agent and the Agent shall notify the other Finance Parties.

Increased costs

Increased costs

Subject to Clause 12.3 (Exceptions) the Borrower shall, within three Business Days of a demand by the Agent, pay for the account of a Finance Party the amount of any Increased Costs incurred by that Finance Party or any of its Affiliates as a result of:

the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation;

compliance with any law or regulation made after the date of the Original Facility Agreement; or

the implementation or application of, or compliance with, Basel III or any law or regulation which implements Basel III (including for the avoidance of doubt, CRD IV to the extent that is applies to Basel III) (whether such implementation, application or compliance is by a government, regulator, Finance Party or any of its Affiliates).

In this Agreement:

“Basel III” means:

the agreements on capital requirements, a leverage ratio and liquidity standards contained in “Basel III: A global regulatory framework for more resilient banks and banking systems”, “Basel III: International framework for liquidity risk measurement, standards and monitoring” and “Guidance for national authorities operating the countercyclical capital buffer” published by the Basel Committee on Banking Supervision in December 2010, each as amended, supplemented or restated;

the rules for global systemically important banks contained in “Global systemically important banks: assessment methodology and the additional loss absorbency requirement – Rules text” published by the Basel Committee on Banking Supervision in November 2011, as amended, supplemented or restated; and

any further guidance or standards published by the Basel Committee on Banking Supervision relating to “Basel III”.

“CRD IV” means:

Regulation (EV) No. 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms as amended by Regulation (EU) 2019/876 of the European Parliament and of the Council of 20 May 2019; and

Directive 2013/36EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC as amended by Directive (EU) 2019/878 of the European Parliament and of the Council of 20 May 2019.

“Increased Costs” means:

a reduction in the rate of return from a Facility or on a Finance Party’s (or its Affiliate’s) overall capital;

an additional or increased cost; or

a reduction of any amount due and payable under any Finance Document,

Increased cost claims

A Finance Party intending to make a claim pursuant to Clause 12.1 (Increased costs) shall notify the Agent of the event giving rise to the claim, following which the Agent shall promptly notify the Borrower.

Each Finance Party shall, as soon as practicable after a demand by the Agent, provide a certificate confirming the amount of its Increased Costs.

Exceptions

Clause 12.1 (Increased costs) does not apply to the extent any Increased Cost is:

attributable to a Tax Deduction required by law to be made by an Obligor;

attributable to a FATCA Deduction required to be made by a Party;

compensated for by Clause 11.3 (Tax indemnity) (or would have been compensated for under Clause 11.3 (Tax indemnity) but was not so compensated solely because any of the exclusions in Clause 11.3(B) applied);

attributable to the wilful breach by the relevant Finance Party or its Affiliates of any law or regulation.

In this Clause 12.3, a reference to a “Tax Deduction” has the same meaning given to that term in Clause 1.1 (Definitions).

Other indemnities

Currency indemnity

If any sum due from an Obligor under the Finance Documents (a “Sum”), or any order, judgment or award given or made in relation to a Sum, has to be converted from the currency (the “First Currency”) in which that Sum is payable into another currency (the “Second Currency”) for the purpose of:

making or filing a claim or proof against that Obligor;

obtaining or enforcing an order, judgment or award in relation to any litigation or arbitration proceedings,

Each Obligor waives any right it may have in any jurisdiction to pay any amount under the Finance Documents in a currency or currency unit other than that in which it is expressed to be payable.

Other indemnities

the occurrence of any Event of Default;

a failure by an Obligor to pay any amount due under a Finance Document on its due date, including without limitation, any cost, loss or liability arising as a result of Clause 30 (Sharing among the Finance Parties);

funding, or making arrangements to fund, its participation in a Loan requested by the Borrower in a Utilisation Request but not made by reason of the operation of any one or more of the provisions of this Agreement (other than by reason of default or negligence by that Finance Party alone); or

a Loan (or part of a Loan) not being prepaid in accordance with a notice of prepayment given by the Borrower.

Indemnity to the Agent

investigating any event which it reasonably believes is a Default;

acting or relying on any notice, request or instruction which it reasonably believes to be genuine, correct and appropriately authorised; or

instructing lawyers, accountants, tax advisers, surveyors or other professional advisers or experts as permitted under this Agreement.

Indemnity to the Security Agent

Each Obligor jointly and severally shall promptly indemnify the Security Agent and every Receiver and Delegate against any cost, loss or liability incurred by any of them as a result of:

any failure by an Obligor to comply with its obligations under Clause 15 (Costs and expenses);

acting or relying on any notice, request or instruction which it reasonably believes to be genuine, correct and appropriately authorised;

the taking, holding, protection or enforcement of the Transaction Security;

the exercise of any of the rights, powers, discretions, authorities and remedies vested in the Security Agent and each Receiver and Delegate by the Finance Documents or by law;

any default by an Obligor in the performance of any of the obligations expressed to be assumed by it in the Finance Documents; or

acting as Security Agent, Receiver or Delegate under the Finance Documents or which otherwise relates to any of the Secured Assets (otherwise, in each case, than by reason of the relevant Security Agent’s, Receiver’s or Delegate’s gross negligence or wilful misconduct).

The Security Agent and every Receiver and Delegate may, in priority to any payment to the Secured Parties, indemnify itself out of the Secured Assets in respect of, and pay and retain, all sums necessary to give effect to the indemnity in this Clause 13.4 and shall have a lien on the Transaction Security and the proceeds of the enforcement of the Transaction Security for all moneys payable to it.

Mitigation by the lenders

Mitigation

Each Finance Party shall, in consultation with the Borrower, take all reasonable steps to mitigate any circumstances which arise and which would result in any amount becoming payable under or pursuant to, or cancelled pursuant to, any of Clause 7.1 (Illegality) or Clause 11 (Tax gross-up and indemnities) including (but not limited to) transferring its rights and obligations under the Finance Documents to another Affiliate.

Clause 14.1(A) does not in any way limit the obligations of any Obligor under the Finance Documents.

Limitation of liability

The Borrower shall promptly indemnify each Finance Party for all costs and expenses reasonably incurred by that Finance Party as a result of steps taken by it under Clause 14.1 (Mitigation).

A Finance Party is not obliged to take any steps under Clause 14.1 (Mitigation) if, in the opinion of that Finance Party (acting reasonably), to do so might be prejudicial to it.

Costs and expenses

Transaction expenses

this Agreement and any other documents referred to in this Agreement; and

any other Finance Documents executed after the date of the Original Facility Agreement.

Amendment costs

an Obligor requests an amendment, waiver or consent; or

an amendment is required pursuant to Clause 31.9 (Change of currency),

Enforcement costs

Structuring expense

Guarantee and indemnity

Guarantee and indemnity

guarantees to each Finance Party punctual performance by the Borrower of all the Borrower’s obligations under the Finance Documents;

undertakes with each Finance Party that whenever the Borrower does not pay any amount when due under or in connection with any Finance Document, that Guarantor shall immediately on demand pay that amount as if it was the principal obligor; and

agrees with each Finance Party that if any obligation guaranteed by it is or becomes unenforceable, invalid or illegal, it will, as an independent and primary obligation, indemnify that Finance Party immediately on demand against any cost, loss or liability it incurs as a result of the Borrower not paying any amount which would, but for such unenforceability, invalidity or illegality, have been payable by it under any Finance Document on the date when it would have been due. The amount payable by a Guarantor under this indemnity will not exceed the amount it would have had to pay under this Clause 16 (Guarantee and indemnity) if the amount claimed had been recoverable on the basis of a guarantee.

Continuing guarantee

Reinstatement

Waiver of defences

any time, waiver or consent granted to, or composition with, any Obligor or other person;

the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor of any member of the Group;

the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;

any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any other person;

any amendment, novation, supplement, extension, restatement (however fundamental and whether or not more onerous) or replacement of any Finance Document or any other document or security including, without limitation, any change in the purpose of, any extension of or any increase in any facility or the addition of any new facility under any Finance Document or other document or security;

any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document or any other document or security; or

any insolvency or similar proceedings.

Guarantor Intent

Immediate recourse

Appropriations

refrain from applying or enforcing any other moneys, security or rights held or received by that Finance Party (or any trustee or agent on its behalf) in respect of those amounts, or apply and enforce the same in such manner and order as it sees fit (whether against those amounts or otherwise) and no Guarantor shall be entitled to the benefit of the same; and

hold in an interest-bearing suspense account any moneys received from any Guarantor or on account of any Guarantor’s liability under this Clause 16 (Guarantee and indemnity).

Deferral of Guarantors’ rights

to be indemnified by an Obligor;

to claim any contribution from any other guarantor of any Obligor’s obligations under the Finance Documents;

to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the Finance Parties under the Finance Documents or of any other guarantee or security taken pursuant to, or in connection with, the Finance Documents by any Finance Party;

to bring legal or other proceedings for an order requiring any Obligor to make any payment, or perform any obligation, in respect of which any Guarantor has given a guarantee, undertaking or indemnity under Clause 16.1 (Guarantee and indemnity);

to exercise any right of set-off against any Obligor; and/or

to claim or prove as a creditor of any Obligor in competition with any Finance Party.

Release of Guarantors’ right of contribution

that Retiring Guarantor is released by each other Guarantor from any liability (whether past, present or future and whether actual or contingent) to make a contribution to any other Guarantor arising by reason of the performance by any other Guarantor of its obligations under the Finance Documents; and

each other Guarantor waives any rights it may have by reason of the performance of its obligations under the Finance Documents to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the Finance Parties under any Finance Document or of any other security taken pursuant to, or in connection with, any Finance Document where such rights or security are granted by or in relation to the assets of the Retiring Guarantor.

Additional security

Waiver of defences – California

any rights of subrogation, reimbursement, indemnification, and contribution and any other rights and defences that are or may become available to a guarantor or other surety by reason of California Civil Code Sections 2787 to 2855, inclusive;

any rights or defences a guarantor or other surety may have in respect of his or her or its obligations as a guarantor or other surety by reason of any election of remedies by a creditor;

any rights or defences a guarantor or other surety may have because the principal’s note or other obligation is secured by real property or an estate for years including, but not limited to, any rights or defences that are based upon, directly or indirectly, the application of California Code of Civil Procedure Sections 580a, 580b, 580d, or 726 to the principal’s note or other obligation;

all rights and defences that a guarantor may have because the debtor’s debt is secured by real property such that, among other things:

the creditor may collect from the guarantor without first foreclosing on any real or personal property collateral pledged by the debtor; or

if the creditor forecloses on any real property collateral pledged by the debtor:

the amount of the debt may be reduced only by the price for which that collateral is sold at the foreclosure sale, even if the collateral is worth more than the sale price;

the creditor may collect from the guarantor even if the creditor, by foreclosing on the real property collateral, has destroyed any right the guarantor may have to collect from the debtor.

all rights and defences arising out of an election of remedies by a creditor, even though that election of remedies, such as a non-judicial foreclosure with respect to security for a guaranteed obligation, has destroyed the guarantor’s rights of subrogation and reimbursement against the principal by the operation of Section 580d of the California Code of Civil Procedure or otherwise.

Representations

Status

It is a corporation, duly incorporated and validly existing under:

the laws of the Cayman Islands, in the case of the Borrower;

the laws of England and Wales, in the case of the English Obligor; and

the laws of Delaware, US, in the case of the US Obligor.

It and each of its Subsidiaries has the power to own its assets and carry on its business as it is being conducted.

Binding obligations

Non-conflict with other obligations

conflict with any law or regulation applicable to it;

conflict with its or any of its Subsidiaries’ constitutional documents;

conflict with any agreement or instrument binding upon it or any of its Subsidiaries or any of its or any of its Subsidiaries’ assets; or

result in the creation or imposition of (or enforceability of) any Security on the whole or any part of its undertaking or assets pursuant to the provisions of any agreement or documents other than the Security Agreement.

Power and authority

Validity and admissibility in evidence

to enable it lawfully to enter into, exercise its rights and comply with its obligations in the Finance Documents to which it is a party; and

to make the Finance Documents to which it is a party admissible in evidence in its jurisdiction of incorporation,

Solvency

Purpose of Credit Extensions

No winding-up

Deduction of Tax

a Qualifying Lender:

falling within paragraph (1)(a) of the definition of “Qualifying Lender”; or

except where a Direction has been given under section 931 of the ITA in relation to the payment concerned, falling within paragraph (1)(b) of the definition of “Qualifying Lender”; or

falling within paragraph (2) of the definition of “Qualifying Lender” or;

a Treaty Lender and the payment is one specified in a direction given by the Commissioners of Revenue & Customs under Regulation 2 of the Double Taxation Relief (Taxes on Income) (General) Regulations 1970 (SI 1970/488).

No filing or stamp taxes

No default

No Event of Default is continuing or might reasonably be expected to result from the making of any Utilisation.

No other event or circumstance is outstanding which constitutes a default under any other agreement or instrument which is binding on it or any of its Subsidiaries or to which its or any of its Subsidiaries’ assets are subject which might have a Material Adverse Effect.

No misleading information

Financial statements

Its Original Financial Statements were prepared in accordance with IFRS¹ consistently applied.

Its Original Financial Statements fairly present its financial condition as at the end of the relevant financial year and its results of operations during the relevant financial year.

There has been no change in its business or financial condition since the Closing Date that is reasonably likely to cause a Material Adverse Effect.

To be confirmed by Rockley.

Pari passu ranking

No proceedings

No litigation, arbitration or administrative proceedings of or before any court, arbitral body or agency which, if adversely determined, might reasonably be expected to have a Material Adverse Effect has or have (to the best of its knowledge and belief) been started or threatened against it or any of its Subsidiaries.

No judgment or order of a court, arbitral body or agency which might reasonably be expected to have a Material Adverse Effect has (to the best of its knowledge and belief) been made against it or any of its Subsidiaries.

Taxation

It is not (and none of its Subsidiaries is) overdue in the filing of any Tax returns and it is not (and none of its Subsidiaries is) overdue in the payment of any material amount in respect of Tax.

No claims or investigations are being, or are reasonably likely to be, made or conducted against it (or any of its Subsidiaries) with respect to Taxes.

It is resident for Tax purposes only in the jurisdiction of its incorporation.

Intellectual Property rights

The Borrower is the sole legal and beneficial owner of (except for non-exclusive licences granted to its customers in the ordinary course of business), or has licensed to it on normal commercial terms, all of its Material Intellectual Property.

All Intellectual Property owned by any Subsidiary of the Borrower has been duly assigned to the Borrower.

All registered Material Intellectual Property owned by the Borrower is valid and enforceable, and no part of the Borrower’s Material Intellectual Property has been judged invalid or unenforceable.

The Borrower has taken all formal or procedural actions (including payment of fees) required to maintain any registered Material Intellectual Property owned by it.

The Borrower is not aware of any current, pending or threatened challenge or objection which has or might cause a Material Adverse Effect by any third party to the use by it of any Material Intellectual Property, or infringement of any of its Material Intellectual Property by any third party.

[RESERVED]

No undisclosed Security Interest

Forecasts and projections

Other circumstances

Jurisdiction

Sanctions

is a Restricted Party;

has, to the knowledge of the Borrower, engaged in any dealings or transactions with a Restricted Party; or

has, to the knowledge of the Borrower, received notice of any action, suit, proceeding or investigation against it with respect to Sanctions.

Anti-corruption law

No member of the Group or (to the best of the Borrower’s knowledge and belief after due and careful inquiry) director and officer of the Borrower or member of the Group has engaged in any activity or conduct which would violate any applicable anti-bribery, anti-corruption or anti-money laundering laws or regulations in any applicable jurisdiction.

Each member of the Group has instituted and maintained policies and procedures designed to promote and achieve compliance with applicable anti-bribery, anticorruption and anti-money laundering laws and regulations.

Shares

the Borrower’s issued share capital is, at the date of this Agreement, 1 ordinary share of US$0.00001;

all of the Borrower’s issued share capital is fully paid and is free and clear from any encumbrances; and

save in respect of any right of pre-emption, neither the constitutional documents of the Borrower nor any agreement or instrument to which the Borrower is a party or by which the Borrower may be bound, restrict or inhibit any issuance, or transfer upon creation, of the shares subject to the SPAC Conversion (including pursuant to any discretion granted to the board of directors of the Borrower permitting them to refuse to register any such transfer).

Regulatory compliance

Repetition

Information undertakings

Financial statements, reports and certificates

as soon as the same become available, but no later than 30 days after the end of month, a company prepared consolidated and consolidating Monthly Financial Statements including at least balance sheet, income statement and cash flow statement covering the Borrower’s and each Subsidiary’s operations for such month certified by a Responsible Officer and in a form acceptable to the Agent and the Arranger;

as soon as the same become available, but no later than 180 days after the last day of the Borrower’s financial year, audited consolidated Annual Financial Statements prepared under US GAAP, consistently applied, with an unqualified opinion (or qualified only to the extent that the Agent regards such qualification as not being material, in its reasonable opinion) on the financial statements from an independent firm of chartered accountants reasonably acceptable to the Agent and the Arranger;

within 45 days after the last day of each financial quarter, a company prepared Quarterly Financial Statements balance sheet, income statement and cash flow statement covering the Borrower’s and each Subsidiary’s operations for such quarter, detailed information in key performance indicators, certified by a Responsible Officer and in a form acceptable to the Agent and the Arranger;

within 45 days after the last day of each quarter, a duly completed Compliance Certificate signed by a Responsible Officer, certifying that as of the end of such quarter, the Borrower was in full compliance with all of the terms and conditions of this Agreement, and setting out calculations showing compliance with the financial covenants set out in this Agreement and such other information as the Agent and/or the Arranger shall reasonably request;

a prompt report of any legal actions pending or threatened in writing against the Borrower or any of its Subsidiaries that could result in damages or costs the Borrower or any Subsidiary of, individually or in the aggregate, £250,000 (or its equivalent in any other currency) or more;

on the last Business Day of February and August (commencing in February 2021), details of any newly registered Intellectual Property held by it or any of its Affiliates or any changes to any registered Intellectual Property held by it or any of its Affiliates;

as soon as available but no later than 45 days after the last day of each quarter the Borrower’s board approved progress update and Quarterly Financial Statements;

as soon as available but no later than 45 days after the last day of each quarter a confirmation by the Borrower that no assets of the Borrower, any Obligor or any direct or indirect subsidiary of the Borrower have been pledged other than to the Security Agent pursuant to this Agreement (or as otherwise permitted in this Agreement);

within five Business Days of delivery, copies of all statements, reports and notices made available to the Borrower’s security holders or to their shareholders (in their capacity as shareholders);

on the last day of each quarter the details of any new Material Company; and

budgets, sales projections, operating plans and other financial information reasonably requested by the Agent and/ or the Arranger.

Requirements as to financial statements

Each relevant Obligor shall procure that each set of Annual Financial Statements includes a balance sheet, profit and loss account and cashflow statement. In addition, the Obligors’ Agent shall procure that each set of Annual Financial Statements of the Borrower shall be audited by the auditors.

Each set of financial statements delivered pursuant to Clause 18.1 (Financial statements, reports and certificates):

shall be certified by a director of the Obligors’ Agent on behalf of the relevant Obligor as giving a true and fair view of (in the case of Annual Financial Statements for any Financial Year), or fairly representing (in other cases), its financial condition and operations as at the date as at which those financial statements were drawn up; and

shall be prepared in accordance with US GAAP.

If the Agent and/or the Arranger wishes to discuss the financial position of any member of the Group with the auditors of that member of the Group, the Agent and/or the Arranger may notify the Borrower, stating the questions or issues which the Agent and/or the Arranger wishes to discuss with those auditors. In this event, the Obligors must ensure that those auditors are authorised (at the expense of the Borrower):

to discuss the financial position of the relevant member of the Group with the Agent and/or the Arranger (as applicable) on request, and upon reasonably prior notice, from the Agent or the Arranger (as applicable); and

to disclose to the Agent for the Finance Parties and/or the Arranger any information which the Agent and/or the Arranger (as applicable) may reasonably request.

Year-end

Budgets

The Borrower shall supply to the Agent in sufficient copies for all the Lenders, as soon as the same become available but in any event within 45 days after the start of each of its Financial Years, an annual budget for that financial year (the “Budget”).

The Borrower shall ensure that each Budget for a financial year:

is prepared on a consolidated basis;

is in a form reasonably acceptable to the Agent and includes:

a projected consolidated profit and loss, balance sheet and consolidated cashflow statement for the Group; and

a capex plan,

is prepared in accordance with US GAAP and the accounting practices and financial reference periods applied to financial statements under Clause 18.1 (Financial statements, reports and certificates); and

has been approved by the board of directors of the Borrower.

If the Borrower updates or changes the Budget (or if any changes to the Budget are proposed to be discussed by the board of directors of the Borrower), it shall promptly deliver to the Agent, in sufficient copies for each of the Lenders, such updated or changed Budget (or details of such proposed change) together with a written explanation of the main changes made or proposed to be made in that Budget.

Valuation

Inventory

The Obligors shall keep all Inventory in good and marketable condition, free from material defects to the extent any such material defects have or are reasonably likely to have a Material Adverse Effect. Returns and allowances between the Obligors and their Account Debtors shall follow the Obligor’s customary practices as updated from time to time.

Each Obligor must promptly notify the Agent of all returns, recoveries, disputes and claims of more than £250,000 in each case.

Annual auditors call

Each Obligor shall (and the Borrower shall ensure that each member of the Group requested by the Agent shall), within 10 Business Days’ of a request by a Lender, and on no less than five Business Days’ prior notice to the Agent, the Arranger and the Obligors’ Agent, hold a call (no more frequently than once every twelve months) during business hours in London which is available to the Agent, the Arranger and the Lenders to discuss an agenda proposed by the Agent and/or the Arranger.

If the Agent and/or the Arranger wishes to discuss the financial position of any member of the Group with the auditors of that member of the Group, the Agent and/or the Arranger may notify the Borrower, stating the questions or issues which the Agent and/or Arranger wishes to discuss with those auditors. In this event, the Borrower must ensure that those auditors are authorised (at the expense of the Borrower):

to discuss the financial position of the relevant member of the Group with the Agent and/or Arranger on request from the Agent and/or the Arranger; and

to disclose to the Agent for the Lenders and/or the Arranger any information which the Agent or the Arranger (as applicable) may reasonably request.

Notwithstanding any other term of this Agreement no Event of Default shall occur, or be deemed to occur as a result of any restriction on the identity of the Borrower’s auditors contained in this Agreement being prohibited, unlawful, ineffective, invalid or unenforceable pursuant to applicable laws.

Board Observer

The Original Borrower and the Borrower (from the First Effective Date only) shall procure that, at all times from and including the Closing Date (or the First Effective Date, in the case of the Borrower) until and excluding the First Effective Date in the case of the Original Borrower or the SPAC Listing Date in the case of the Borrower (each, the “Relevant Time”), a representative of the Agent or the Original Lender (or the Arranger acting on its behalf), or Eleuthera SPC (the “Board Observer”) shall be entitled to attend each Board Meeting on behalf of the Lenders on the condition that the Board Observer shall attend Board Meetings as an observer only and shall not:

have any rights or liabilities in relation to the direction or conduct of any management of any member of the Group as a result of attending Board Meetings; or

be entitled to vote at, or count in the quorum for, any Board Meeting. At all times during the Relevant Time, the Borrower and/or Original Borrower (as the case may be) shall procure that the Board Observer is given notice of Board Meetings:

as soon as reasonably practicable;

no later than the time that notice of the relevant Board Meeting is given to members of the board of directors of the Borrower generally;

no later than the time that notice of the relevant Board Meeting is required to be given pursuant to the constitutional documents of the Borrower; and

in any event, no later than 10 Business Days prior to the relevant Board Meeting (unless the Chairman of the Board of Directors reasonably deems it important for the commercial interest of the Borrower to convene the Board Meeting earlier than this).

At all times during the Relevant Time, the Borrower (or the Original Borrower, prior to the First Effective Date) shall procure that the Board Observer is supplied with a copy of all relevant board papers which are dispatched to members of the board of directors of the Borrower for the purposes of a Board Meeting generally at the same time as they are dispatched to those members of the board of directors of the Borrower (or the Original Borrower, as the case may be).

The Agent, the Original Lender (or the Arranger acting on its behalf) or Eleuthera SPC agree that as a condition to their representative acting as a Board Observer, such person shall undertake to cooperate with the Borrower and fulfil any and all necessary formalities requested by the competent authorities or by applicable laws, as well as comply with any applicable laws, in each case as the same apply to their role as a Board Observer, in all cases during the Relevant Time only.

Notwithstanding the foregoing, where the Borrower’s (or Original Borrower’s) board of directors resolve, acting reasonably and in good faith, that a matter to be discussed gives rise to an actual bona fide conflict of interest between the Lenders and the Borrower (or, prior to the First Effective Date, the Original Borrower), the Board Observer may be excluded from the part of the meeting (and from the distribution list for any such associated written materials) where the matter giving rise to such conflict of interest is discussed, in all cases during the Relevant Time only.

Notwithstanding any other term in this Clause 18.8 (Board Observer), on and from the SPAC Listing Date, if the Parties are unable to obtain the necessary information pursuant to the terms of this Agreement and/or agree any suitable additional information rights (whether by way of an amendment to the existing information covenants herein or otherwise), then the Borrower shall, at any time on or following the SPAC Listing Date, absent any such agreement or access to the relevant information above, grant the Arranger the right to perform an audit at any time upon request which will include providing the Arranger with access to the Borrower’s premises and the right to inspecting the Borrower’s board minutes and books. The Arranger may at its discretion refrain from exercising the information and audit rights if the Arranger acting in its sole discretion believes that such information or audit may provide it with material non-public information affecting the ability of the Lender Designate to sell the SPAC Conversion Shares.

In this Clause 18.8 (Board Observer), “Board Meeting” means any meeting of:

the board of directors; or

any committee of the board of directors,

Notification of default

Each Obligor shall notify the Agent and the Arranger of any Default (and the steps, if any, being taken to remedy it) promptly upon becoming aware of its occurrence (unless that Obligor is aware that a notification has already been provided by another Obligor).

Promptly upon a request by the Agent and/or the Arranger, the Borrower shall supply to the Agent and/or the Arranger a certificate signed by two of its directors or senior officers on its behalf certifying that no Default is continuing (or if a Default is continuing, specifying the Default and the steps, if any, being taken to remedy it).

“Know your customer” checks

If:

the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation made after the date of this Agreement;

any change in the status of an Obligor or the addition or resignation of an Obligor in respect of this Agreement, or the composition of the shareholders of or control of any Obligor after the date of this Agreement; or

a proposed assignment or transfer by any Lender of any of its rights and obligations under this Agreement,

Each Lender or the Arranger (as the case may be) shall promptly upon the request of the Agent supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Agent (for itself) in order for the Agent to carry out and be satisfied it has complied with all necessary “know your customer” or other similar checks under all applicable laws and regulations pursuant to the transactions contemplated in the Finance Documents.

General undertakings

Authorisations

obtain, comply with and do all that is necessary to maintain in full force and effect; and

supply certified copies to the Agent of,

Compliance with laws

Negative pledge

No Obligor shall (and the Borrower shall ensure that no other member of the Group will) create or permit to subsist any Security over any of its assets.

No Obligor shall (and the Borrower shall ensure that no other member of the Group will):

sell, transfer or otherwise dispose of any of its assets on terms whereby they are or may be leased to or re-acquired by an Obligor or any other member of the Group;

sell, transfer or otherwise dispose of any of its receivables on recourse terms;

enter into any arrangement under which money or the benefit of a bank or other account may be applied, set-off or made subject to a combination of accounts; or

enter into any other preferential arrangement having a similar effect,

Clause 19.3(A) and Clause 19.3(B) do not apply to any Security or (as the case may be) Quasi-Security, listed below:

any cash collateral arrangements securing ancillary banking services;

any netting or set-off arrangement entered into by any member of the Group in the ordinary course of its banking arrangements for the purpose of netting debit and credit balances of members of the Group but only so long as (i) such arrangement does not permit credit balances of Obligors to be netted or set off against debit balances of members of the Group which are not Obligors and (ii) such arrangement does not give rise to other Security over the assets of Obligors in support of liabilities of members of the Group which are not Obligors;

any payment or close out netting or set-off arrangement pursuant to any derivative transaction or foreign exchange transaction entered into by a member of the Group which is permitted under Clause 19.5 (Financial Indebtedness), excluding any Security or Quasi-Security under a credit support arrangement;

any Security or Quasi-Security existing on the date of this Agreement which is approved by the Agent in writing and Security or Quasi-Security arising under the Finance Documents;

any Security or Quasi-Security for taxes, fees, assessments or other government charges or levies, either not delinquent or being contested in good faith and for which any Obligor maintains adequate reserves on its books;

purchase money Security or Quasi-Security on (i) Equipment acquired or held by any Obligor incurred for financing the acquisition of the Equipment securing no more than £50,000 in aggregate amount outstanding, or (ii) existing on Equipment when acquired, if the Security or Quasi-Security is confined to the property and improvements and the proceeds of the Equipment;

any leases or sub-leases and non-exclusive licences or sub-licences granted in the ordinary course of any Obligor’s business, if the leases, sub-leases, licences and sub-licences permit granting the Security Agent Security or Quasi-Security;

any Security created pursuant to a charge over deposit dated 10 July 2020 between Silicon Valley Bank and the Borrower;

any Security or Quasi-Security incurred in the extension, renewal or refinancing of the indebtedness secured by any Security or Quasi-Security in paragraphs (1) to (7) above, provided that any extension, renewal or replacement Security or Quasi-Security shall be limited to the property encumbered by the existing Security or Quasi-Security and the principal amount of such indebtedness shall not increase; or

any lien arising by operation of law and in the ordinary course of trading;

any Security or Quasi-Security granted with the prior written consent of the Agent.

Disposals

No Obligor shall (and the Borrower shall ensure that no other member of the Group will) enter into a single transaction or a series of transactions (whether related or not) and whether voluntary or involuntary to sell, lease, transfer or otherwise dispose of any asset.

Clause 19.4(A) does not apply to any sale, lease, transfer or other disposal:

which is a Non-Qualified Trade Sale;

of Inventory and cash in the ordinary course of business;

Cash Equivalents for other Cash Equivalents or cash;

of Intellectual Property where:

the board of directors of the Borrower consider it in the best interests of the Borrower to do so and, in respect of Material Intellectual Property, have given 10 Business Days’ notice to the Agent; and

such disposal is on arms-length, on bona fide commercial terms and made to an unrelated third party;

of Intellectual Property where the same is being licenced in the ordinary course of business on arms-length and bona fide commercial terms to an unrelated third party;

of assets in exchange for other assets comparable or superior as to type, value and quality (other than an exchange of a non-cash asset for cash);

of worn out obsolete or redundant Equipment; or

in connection with anything permitted pursuant to Clause 19.3(C) and Clause 19.5(B).

Financial Indebtedness

No Obligor shall (and the Borrower shall ensure that no other member of the Group will) create, incur, assume, or be liable for any Financial Indebtedness.

Clause 19.5(A) does not apply to:

SVB credit card facilities and other ancillary facilities up to a maximum of £500,000 or its equivalent in other currencies (in aggregate);

$2,859,824 made available to the US Obligor under the US Paycheck Protection Program;

the Obligor’s Financial Indebtedness to the Finance Parties under the Finance Documents;

Financial Indebtedness of the Original Borrower created under the Intra-Group Loan Note Instrument up to a maximum aggregate amount of up to an amount equivalent to the product of the Original Facility Amount and the SPAC Conversion Multiple, and provided that:

such Financial Indebtedness:

is owed to the Borrower;

is at all times contractually subordinated in right of payment to amounts owing under the Facility Agreement; and

has a specified maturity falling after and is repaid or prepaid only after amounts owing under the Facility Agreement have been repaid or prepaid in full;

no payment in relation to such Financial Indebtedness is permitted until all amounts owing under the Facility Agreement have been paid and discharged in full;

the Borrower’s rights in respect of such Financial Indebtedness is subject to valid Transaction Security created pursuant to the Intra-Group Loan Note Charge; and

any other terms of the Intra-Group Loan Note Instrument not specified in this item (4) are satisfactory in form and substance to the Arranger (acting reasonably);

Financial Indebtedness in respect of rent deposits up to a maximum aggregate amount of £250,000 (or its equivalent in other currencies);

Financial Indebtedness existing on the date of this Agreement that the Agent has previously approved in writing;

unsecured Financial Indebtedness subordinated to the obligations due to the Finance Parties hereunder on terms satisfactory to the Agent and the Arranger (each acting reasonably);

unsecured Financial Indebtedness to trade creditors incurred in the ordinary course of business;

Financial Indebtedness incurred as a result of endorsing negotiable instruments received in the ordinary course of business;

Financial Indebtedness arising under a foreign exchange transaction for spot or forward delivery entered into in connection with protection against fluctuation in currency rates where that foreign exchange exposure arises in the ordinary course of trade, but not a foreign exchange transaction for investment or speculative purposes;

Financial Indebtedness arising under any derivative transaction entered into for the hedging of actual or projected real exposures arising in the ordinary course of trading activities of a member of the Group for a period of not more than 12 months and not for speculative purposes;

of any person acquired by a member of the Group after the Closing Date which is incurred under arrangements in existence at the date of acquisition, but not incurred or increased or having its maturity date extended in contemplation of, or since, that acquisition, and outstanding only for a period of 3 months following the date of acquisition;

under Finance Leases;

under any other finance or capital leases (other than Finance Leases) of vehicles, plant, equipment or computers, provided that the aggregate capital value of all such items so leased under outstanding leases by members of the Group does not exceed £500,000 (or its equivalent in other currencies) at any time;

not permitted by the preceding paragraphs and the outstanding principal amount of which does not exceed £500,000 (or its equivalent) in aggregate for the Group at any time; and

extensions, refinancings, modifications, amendments and restatements of any items of Financial Indebtedness set out in paragraphs (1) to (9) above, provided that the principal amount thereof is not increased or the terms thereof are not modified to impose more burdensome terms upon any Obligor or any Subsidiary, as the case may be.

Distributions

Repayments

[Reserved]

Taxation

Each Obligor shall pay and discharge all Taxes imposed upon it or its assets within the time period allowed without incurring penalties unless and only to the extent that:

such payment is being contested in good faith;

adequate reserves are being maintained for those Taxes and the costs required to contest them which have been disclosed in its latest financial statements delivered to the Agent under Clause 18.1 (Financial statements); and

such payment can be lawfully withheld and failure to pay those Taxes does not have or is not reasonably likely to have a Material Adverse Effect.

No Obligor may change its residence for Tax purposes.

Merger

No Obligor shall (and the Borrower shall ensure that no other member of the Group will), enter into any amalgamation, demerger, merger or corporate reconstruction where such Obligor is not the surviving legal entity.

Clause 19.10(A) does not apply to: (i) a Permitted Flotation; (i) any Qualified Exit; or (ii) any sale, lease, transfer or other disposal permitted pursuant to Clause 19.4 (Disposals).

Change of business

Change of ownership or management

permit a change in the ownership or control of any Subsidiary of the Borrower without the written consent of the Agent, save in respect of a Qualified Exit, or a Permitted Flotation, the Rockley SPAC Merger, the formation of the Rockley SPAC or the Rockley Share Exchange; or

without at least 30 days prior written notice to the Agent:

change its jurisdiction of organisation; or

change its legal structure or type; or

change its legal name.

Government compliance

Each Obligor shall maintain its, and all of its Subsidiaries’, legal existence and good standing in their jurisdictions of formation and maintain its existence in each jurisdiction in which the failure to do so would reasonably be expected to cause a Material Adverse Effect. Each Obligor shall comply, and shall procure that each of its Subsidiaries complies, with all laws, ordinances and regulations to which it is subject, the non-compliance with which could reasonably be expected to cause a Material Adverse Effect.

Each Obligor shall obtain all of the Governmental Approvals necessary (if any) for the performance by such Obligor of its obligations under the Loan Documents to which it is a party and the grant of a security interest to the Security Agent in all of its property.

Each Obligor shall promptly on written request provide copies of any Governmental Approvals to the Agent.

Tax and pensions

Insurance

Each Obligor shall keep its business and the Secured Assets insured for risks and in amounts standard for companies in such Obligor’s industry and location and as the Agent may reasonably request.

If an Obligor receives any proceeds under any insurance policy it shall notify the Agent and the Agent in writing of any such payment.

Following an Event of Default which is continuing, proceeds payable under any asset protection insurance policy taken out by or otherwise vested in an Obligor shall, at the Agent’s option, be payable to the Agent on account of the obligations of the Obligors under the Finance Documents.

Covenants in relation to shares

The Borrower shall do all such things and do all such acts and shall execute all such documents (whether notarial or otherwise) to the extent necessary or appropriate to:

ensure at all relevant times that its authorised share capital is sufficient to allow for the allotment and issue of all shares required to give effect to the SPAC Conversion;

grant and give effect to the SPAC Conversion in accordance with the terms of this Agreement including, without limitation, despatching free of charge to the persons entitled thereto within 28 days of the SPAC Conversion Date certificates for the shares issued under the SPAC Conversion (should this be a requirement or be deemed necessary to give effect to, or validate the SPAC Conversion under any applicable laws);

effect the SPAC Conversion by the Lenders;

facilitate and give effect to any transfer of shares hereunder by the Lenders or if applicable, any Lender Designate(s); and

prior to the SPAC Conversion Date and subject to the provisions of Clause 21 (Changes to the Lenders), facilitate the assignment of all rights and benefits of the Lenders under this Agreement or the transfer of all rights, benefits and obligations of the Lenders under this Agreement, in each case as they relate to the SPAC Conversion.

The Borrower shall not in respect of any shares subject to the SPAC Conversion and, until such time as the SPAC Conversion Shares are issued to the Lender s (and/or their Lender Designate(s), as applicable) pursuant to Clause 8 (Conversion) and the SPAC Conversion is completed:

grant or cooperate to grant options, warrants, rights of conversion or other arrangements to any person or persons, in respect of any shares allotted or issued in connection with Clause 8 (Conversion) (and in all cases above, arising other than in respect of the SPAC Conversion itself);

change or cooperate to change any rights attaching to any of the shares, other than pursuant to the SPAC Conversion granted to the Lenders pursuant to Clause 8 (Conversion);

other than in respect of any pledge of shares created in favour of the Lenders, pledge or encumber or cooperate to pledge or encumber the shares,

The Borrower shall notify the Agent in writing without delay regarding any action matter or thing which if done would result in a breach of Clause 8 (Conversion) or if it becomes aware that any such action, matter or thing has been done; and

The Borrower shall notify the Agent in writing without delay if any matter becomes known to it which is inconsistent with any of the representations given in Clause 17.25 (Shares).

Material Intellectual Property

protect, defend and maintain the subsistence, validity and enforceability of the Material Intellectual Property;

promptly advise the Agent in writing of material infringements of its Material Intellectual Property;

use reasonable endeavours to prevent any infringement in any material respect of its Material Intellectual Property;

make registrations and pay all registration fees and taxes necessary to maintain its Material Intellectual Property in full force and effect and record its interest in that Material Intellectual Property;

not use or permit its Material Intellectual Property to be used in a way or take any step or omit to take any step in respect of that Material Intellectual Property which may materially and adversely affect the existence or value of its Material Intellectual Property or imperil its right to use such property;

not allow any Material Intellectual Property to be abandoned, forfeited, dedicated to the public or encumbered without the Agent’s written consent; and

not allow any of its Affiliates to register any Material Intellectual Property without procuring that such Affiliate enters in such intellectual property security agreements and other documents and take such other actions as the Agent shall request in its good faith business judgement to perfect and maintain a first priority perfected Security in favour of the Security Agent in such property, including without limitation assignment of such Material Intellectual Property to the Borrower.

Financial assistance

Transactions with Affiliates

Subsidiary Restrictions

The Obligors shall not in any 12 month period from the date of this Agreement downstream any funds or provide any financial assistance to any Subsidiary (that is not itself also an Obligor) in excess of $6,000,000 or its equivalent in any other currency (in aggregate).

The Obligors shall ensure that at all times the maximum amount of Cash and Cash Equivalents held by the Subsidiaries of any Obligor (that is not itself also an Obligor) shall be $500,000 or its equivalent in any other currency (in aggregate).

With the exception of a Permitted Flotation, the Borrower shall not seek to list or implement listing of its shares on any public trading venue. Furthermore, the Borrower shall ensure that none of its direct and indirect Subsidiaries seek or implement listing of their respective shares on any public trading venue.

Anti-corruption law and Sanctions

Each Obligor shall (and the Borrower shall ensure that each other member of the Group will):

conduct its businesses in compliance with applicable anti-bribery, anti-money laundering and anti-corruption laws and regulations and Sanctions; and

maintain policies and procedures designed to promote and achieve compliance with such laws and regulations and Sanctions;