AGREEMENT FOR THE PROVISION OF A LOAN FACILITY OF UP TO €9,000,000 Dated 23 September 2019 Between

Exhibit 10.14

 

EXECUTION VERSION

 

AGREEMENT FOR THE PROVISION OF A LOAN FACILITY

 

OF UP TO €9,000,000

 

Dated 23 September 2019

 

Between

 

KREOS CAPITAL VI (UK) LIMITED, a company incorporated in England and Wales under registration number 11535385 whose registered office is at Amf Building, ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (the “Lender”, which expression shall include its successors and assigns);

 

and

 

MDxHEALTH SA, a limited liability company by shares, incorporated in Belgium and registered in the Legal Entities Register (Liège) under number 0479.292.440 whose registered office is at Rue d’▇▇▇▇▇▇ ▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ (the “Borrower”).

 

WHEREAS:

 

1.The Borrower wishes to borrow up to the Total Loan Facility (as defined below) and the Lender wishes to make the Total Loan Facility available to the Borrower on the terms of this agreement (this “Loan Agreement”); and

 

2.The Borrower hereby confirms that on or about the date of this Loan Agreement it (and it shall procure each relevant Group Company) shall enter into the Initial Security Documents as security for monies borrowed by the Borrower under this Loan Agreement.

 

LOAN FACILITY TERMS:

 

Total Loan Facility Up to €9,000,000 available to be drawn down from the date of this Loan Agreement.
Expiry Date Subject to Clause 3.4, in relation to the ability to drawdown a Tranche, 1 November 2019.
Advance Payments In relation to each Tranche, the last month’s repayment amount (comprising principal and interest) as set out in the Repayment Schedule.
Loan Term The Interest Only Period from (and including) the First Monthly Repayment Date followed by thirty six (36) monthly payments of principal and interest.
Transaction Fee €112,500 payable upon execution of this Loan Agreement.
End of Loan Payments In relation to each Tranche, 5% of the amount drawn down under the relevant Tranche.
Minimum Drawdown Amount €900,000
Drawdown Fees In relation to each Tranche, 7% of the amount drawn down under the relevant Tranche.

 

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1.DEFINITIONS

 

In this Loan Agreement, including the recitals set out above, unless otherwise defined:

 

1.1“Accounts” means the audited annual group consolidated profit and loss account and balance sheet of the Borrower for the period ended on 31 December;

 

1.2“Advance Payment” has the meaning given in Clause 5.3 and is in the amount set forth above under the heading Loan Facility Terms;

 

1.3“Affiliate” means, in relation to any person, (i) any other person directly or indirectly owned by or controlled by such person including subsidiaries; or (ii) any person that directly or indirectly owns or controls such person including holding companies;

 

1.4“Applicable Interest Rate” has the meaning given in Clause 6.2;

 

1.5“Assignee” has the meaning given in Clause 15.4;

 

1.6“Business Day” means any day on which banks are generally open for business in London (England), Brussels (Belgium) and Irvine (USA) other than a Saturday or Sunday;

 

1.7“Change of Control” has the meaning as given in Clause 9.1.13;

 

1.8“Charged Assets” means the assets and undertaking of a Group Company charged or to be charged to the Lender from time to time pursuant to the Security Documents;

 

1.9“Confidential Information” means all information relating to the Borrower, the Group or the Loan Documents of which the Lender becomes aware in its capacity as, or for the purpose of becoming, the Lender or which is received by the Lender in relation to, or for the purpose of becoming the Lender under the Loan Documents from either:

 

1.9.1any member of the Group or any of its advisers; or

 

1.9.2any other party, if the information was obtained by that party directly or indirectly from any member of the Group or any of its advisers,

 

in whatever form, and includes information given orally and any document, electronic file or any other way of representing or recording information which contains or is derived or copied from such information but excludes information that:

 

1.9.3is or becomes public information other than as a direct or indirect result of any breach by the Lender of the confidentiality provisions in this Agreement; or

 

1.9.4is identified in writing at the time of delivery as non-confidential by any member of the Group or any of its advisers; or

 

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1.9.5is known by the Lender before the date the information is disclosed to it in accordance with Clauses 1.9.1 or 1.9.2 or is lawfully obtained by the Lender after that date, from a source which is, as far as the Lender is aware, unconnected with the Group and which, in either case, as far as the Lender is aware, has not been obtained in breach of, and is not otherwise subject to, any obligation of confidentiality.

 

1.10“Confidentiality Undertaking” means a confidentiality undertaking in a form agreed between the Lender and the Borrower;

 

1.11“Contractual Currency” has the meaning given to it in Clause 5.2;

 

1.12“Convertible Loans Agreement” means the convertible loans agreement between the Lender and the Borrower, in the agreed form, and dated the same date as this Loan Agreement;

 

1.13“Drawdown” means the drawdown of a Tranche under the Loan Facility;

 

1.14“Drawdown Date” means, subject to Clause 3.2.2, the date specified by the Borrower in the relevant Drawdown Notice or as may be otherwise agreed in writing by the Borrower and the Lender;

 

1.15“Drawdown Fee” means the Drawdown Fee in the amount set forth above under the heading Loan Facility Terms;

 

1.16“Drawdown Notice” means a drawdown notice served in accordance with Clause 3.2 in the form attached hereto as Schedule A (as may be amended with the prior written consent of the Lender);

 

1.17“Dutch Omnibus Security Agreement” means the agreement between the MDxHealth DutchCo 1, MDxHealth DutchCo 2, MDxHealth DutchCo 3 and the Lender pursuant to which those subsidiaries each grant security to the Lender, in the agreed form;

 

1.18“End of Loan Payment” means the End of Loan Payment in the amount set forth above under the heading Loan Facility Terms;

 

1.19“Event of Default” means any of the events or circumstances described in Clause 9;

 

1.20“Equity Financing” means a fundraising by the Borrower (or any Group Company) through the issue of shares, loan stock or other securities or instruments (including securities or instruments convertible into, or carrying the right to subscribe for shares);

 

1.21“Existing Financial Indebtedness” means (i) the Financial Indebtedness specified in Notes 14 and 15 of the Borrower’s Annual Report 2018; and (ii) up to €2,000,000 owing to certain sellers pursuant to a sale and purchase agreement dated 14 September 2015 relating to the purchase of the entire issued share capital of NovioGendix;

 

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1.22“Expiry Date” means the relevant date(s) in relation to the ability to drawdown a Tranche set forth above under the heading Loan Facility Terms;

 

1.23“Financial Indebtedness” means (i) monies borrowed; (ii) finance or capital leases; (iii) receivables sold or discounted; (iv) other transactions or arrangements having the commercial effect of borrowing (excluding any Equity Financings); (v) the marked to market value of derivative transactions entered into in connection with protection against or benefit from fluctuation in any rate or price; (vi) counter-indemnity obligations in respect of guarantees or other instruments issued by a bank or financial institution; and (vii) liabilities under guarantees or indemnities for any of the obligations referred to in items (i) to (vi);

 

1.24“Group” means the Borrower and its direct and indirect subsidiaries (if any) from time to time and “Group Company” means any member of the Group;

 

1.25“Initial Security Documents” means the documents listed in Schedule B and dated on or about the date of this Loan Agreement;

 

1.26“Intellectual Property” means copyrights and related rights (including, without limitation, rights in computer software), patents, supplementary protection certificates, utility models, trade marks, trade names, service marks, domain name registrations, registered and unregistered rights in designs, database rights, semi-conductor topography rights, plant variety rights, rights protectable by the law of passing off or by laws against unfair competition, rights in undisclosed or confidential information (such as know how, trade secrets and inventions (whether patentable or not)), and other similar intellectual property rights (whether registered or not) and applications for such rights as may exist anywhere in the world;

 

1.27“Interest Only Period” has the meaning given to it in Clause 5.1.1;

 

1.28“Interim Payment” means the payment in respect of the period from each Drawdown Date (where the Drawdown Date is not the first day of a calendar month) to the First Monthly Repayment Date being the amount of interest accruing at the Applicable Interest Rate on the amount drawn down for the period from the and including the Drawdown Date to First Monthly Repayment Date;

 

1.29“Loan” means the loan to be made in accordance with the terms of this Loan Agreement;

 

1.30“Loan Documents” means collectively this Loan Agreement, Convertible Loans Agreement, the Security Documents and any other agreement designated as a “Loan Document” by the Lender and the Borrower;

 

1.31“Loan Facility” means the loan facility set out in this Loan Agreement;

 

1.32“Loan Term” means with respect to each Tranche, the period set forth above under the heading Loan Facility Terms (or such later date as may be agreed by the Lender in writing);

 

1.33“Material Adverse Change” has the meaning given to it in Clause 3.4.1;

 

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1.34“Material Group Company” means a Group Company that has granted to the Lender a Security Interest over all or materially all of its assets;

 

1.35“MDxHealth DutchCo 1” means MDxHealth BV, a private company with limited liability, incorporated in the Netherlands and registered with the trade register of the Dutch Chamber of Commerce under number 09164747, having its corporate seat in Nijmegen, the Netherlands and its registered office at ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ Nijmegen, the Netherlands;

 

1.36“MDxHealth DutchCo 2” means MDxHealth Servicelab BV, a private company with limited liability, incorporated in the Netherlands and registered with the trade register of the Dutch Chamber of Commerce under number 09164803, having its corporate seat in Nijmegen, the Netherlands and its registered office at ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ Nijmegen, the Netherlands;

 

1.37“MDxHealth DutchCo 3” means MDxHealth Research BV, a private company with limited liability, incorporated in the Netherlands and registered with the trade register of the Dutch Chamber of Commerce under number 09176917, having its corporate seat in Nijmegen, the Netherlands and its registered office at ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ Nijmegen, the Netherlands;

 

1.38“MDxHealth USA” means MDxHealth Inc., a Delaware corporate with registered address at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, in the City of Wilmington, County of ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇;

 

1.39“Minimum Drawdown Amount” means the minimum amount permitted to be drawn down in each Tranche and is the amount set forth above under the heading Loan Facility Terms;

 

1.40“Monthly Repayment Date” means the first day of a calendar month, and “First Monthly Repayment Date” shall mean the first Monthly Repayment Date being either (i) the Drawdown Date (where the Drawdown Date is the first day of a calendar month); or (ii) the first day of the next calendar month following the Drawdown Date (where the Drawdown Date is not the first day of a calendar month);

 

1.41“Observer” has the meaning given in Clause 8.1.12;

 

1.42“Pledge Agreement” means the security agreement pursuant to which the Borrower agrees to pledge all its assets in favour of the Lender, in the agreed form;

 

1.43“Qualifying Lender” means a lender to which a borrower can make a payment of interest without withholding tax or any other Tax deduction;

 

1.44“Related Fund” in relation to a fund (the “first fund”), means a fund which is managed or advised by the same investment manager or investment adviser as the first fund or, if it is managed by a different investment manager or investment adviser, a fund whose investment manager or investment adviser is an Affiliate of the investment manager or investment adviser of the first fund;

 

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1.45“Repayment Schedule” has the meaning given in Clause 5.1.1;

 

1.46“Security Documents” means the Initial Security Documents, and any other applicable document, in the agreed form, evidencing the security over assets of the Borrower (or any Group Company), or any document entered into by the Borrower (or any Group Company) creating a Security Interest, guarantee and/or indemnity in favour of the Lender or otherwise designated as a Security Document;

 

1.47“Security Interest” means any mortgage, charge (whether fixed or floating, legal or equitable), pledge, lien, hypothecation, assignment by way of security or otherwise, trust arrangement, title retention or encumbrance or enforceable security right of a third party, any other type of security interest or preferential arrangement having a similar effect to any of the foregoing or in the nature of security of any kind whatsoever and in any jurisdiction;

 

1.48“Security Period” means the period commencing on the date of this Loan Agreement and ending on the date upon which the Borrower shall have indefeasibly performed all its obligations (including making all payments) under this Loan Agreement and no amounts are capable of being drawn under the Total Loan Facility;

 

1.49“Taxes” means all present and future income, value added and other taxes, levies, imposts, deductions, charges and withholdings in the nature of taxes (other than taxes on the profits of the Lender) whatsoever together with interest thereon and penalties with respect thereto made on or in respect thereof and “Tax” shall be construed accordingly;

 

1.50“Total Loan Facility” means the amount set forth above under the heading Loan Facility Terms;

 

1.51“Tranche” means an amount drawn down out of the Total Loan Facility pursuant to this Loan Agreement;

 

1.52“Transaction Fee” the amount set forth above under the heading Loan Facility Terms; and

 

1.53“US IP Security Agreement” means the agreement pursuant to which the Borrower grants security over its patents registered in the USA in favour of the Lender, in the agreed form;

 

1.54“US Subsidiary Guaranty Agreement” means the agreement pursuant to which MDxHealth USA guarantees the obligations of the Borrower under this Loan Agreement, in the agreed form;

 

1.55“US Subsidiary Security Agreement” means the agreement pursuant to which MDxHealth USA grants security over its assets in favour of the Lender, in the agreed form;

 

1.56“VAT” means:

 

(i)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); and

 

(ii)any other tax of a similar nature, whether imposed in a member state of the European Union in substitution for, or levied in addition to, such tax referred to in paragraph (i) above, or imposed elsewhere.

 

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2.INTERPRETATION

 

In this Loan Agreement (unless the context requires otherwise) any reference to:

 

2.1any law or legislative provision includes a reference to any subordinate legislation made under that law or legislative provision before the date of this Loan Agreement, to any modification, re-enactment or extension of that law or legislative provision made before that date and to any former law or legislative provision which it consolidated or re-enacted before that date;

 

2.2any gender includes a reference to other genders and the singular includes a reference to the plural and vice versa;

 

2.3a Clause or Schedule is to a clause or schedule (as the case may be) of or to this Loan Agreement;

 

2.4a “person” shall be construed as including a reference to an individual, firm, company, corporation, partnership, unincorporated body of persons or any country (or state thereof or any agency thereof);

 

2.5an “amendment” includes a supplement, novation or re-enactment in writing and “amended” is to be construed accordingly;

 

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

 

2.7an “authorisation” includes an authorisation, consent, approval, resolution, licence, exemption, filing, registration and notarisation;

 

2.8a “regulation” includes any regulation, rule, official directive, request or guideline (whether or not having the force of law) of any governmental, inter-governmental or supranational body, agency, department or regulatory, self-regulatory or other authority or organisation;

 

2.9“control” means in relation to a body corporate, the power of a person to secure that the affairs of the body corporate are conducted in accordance with the wishes of that person:

 

(i)by means of the holding of shares, or the possession of voting power, in or in relation to that or any other body corporate; or

 

(ii)as a result of any powers conferred by the articles of association or any other document regulating that or any other body corporate;

 

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2.10“holding company” means, in relation to any company or corporation, a company or corporation which (i) holds a majority of the voting rights in the first mentioned company or corporation; (ii) is a member of the first mentioned company or corporation and has the right to appoint or remove a majority of its board of directors or equivalent body; or (c) is a member of the first mentioned company or corporation and controls alone, pursuant to an agreement with other members, a majority of the voting rights in that company or corporation;

 

2.11“subsidiary” means, in relation to any company or corporation, a company or corporation (i) which is controlled, directly or indirectly, by the first mentioned company or corporation; (ii) more than half the issued share capital and/or voting rights of which is beneficially owned, directly or indirectly, by the first mentioned company or corporation; or (iii) which is a subsidiary of another subsidiary of the first mentioned company or corporation, and for this purpose, a company or corporation shall be treated as being controlled by another if that other company or corporation is able to direct its affairs and/or to control the composition of its board of directors or equivalent body;

 

2.12(or to any specified provision of) this Loan Agreement, any other document or a provision of any other document, shall be construed as a reference to this Loan Agreement, that document or a provision of that document as in force for the time being and as amended in accordance with the terms thereof, or, as the case may be, with the agreement of the relevant parties and (where such consent is, by the terms of this Loan Agreement or the relevant document, required to be obtained as a condition to such amendment being permitted) the prior written consent of the Lender;

 

2.13“other” and “otherwise” are not to be construed ejusdem generis with any foregoing words where a wider construction is possible and “include” and “including”, “in particular”, “for example” or any similar expression are to be construed as being by way of illustration or emphasis only and are not to be construed as, nor shall they take effect as, limiting the generality of any foregoing words;

 

2.14a document being in “agreed form” is a document which is previously agreed in writing by or on behalf of the Lender, if not so agreed, is in the form specified by the Lender;

 

2.15“$” is the official currency of the United States of America;

 

2.16“€” is the official currency of the European Union;

 

2.17any reference to an Event of Default being continuing is a reference to an Event of Default that has not been waived by the Lender or remedied to the satisfaction of the Lender (acting reasonably); and

 

2.18the headings in this Loan Agreement are inserted for convenience only and do not form part of this Loan Agreement and do not affect its interpretation.

 

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3.LOAN FACILITY

 

3.1Lender’s Commitment

 

3.1.1Subject to Clauses 3.4 and 3.5 below, the Lender shall and agrees hereby to make available to the Borrower the Total Loan Facility under the terms of this Loan Agreement, to be drawn down as set out in the Loan Facility Terms and in accordance with Clause 3.2.

 

3.1.2The Lender shall not be under any commitment to advance the Loan (or any part thereof) after the Expiry Date or upon the earlier termination of the Loan Facility in accordance with Clause 3.4 or Clause 4.2.

 

3.1.3The unutilised portion (if any) of the Loan Facility shall be cancelled after the expiry of the final period for Drawdown as specified in the Loan Facility Terms, whereupon the Total Loan Facility shall be reduced accordingly.

 

3.1.4In granting the Loan Facility, the Lender is relying on the representations and warranties contained in Clause 7.

 

3.1.5Each Drawdown made under the Loan Facility shall be secured by the Security Documents.

 

3.2Date of Advance(s) of the Loan

 

3.2.1Subject to Clauses 3.1.2 and 3.2.2, (and subject to the satisfaction of the relevant conditions set forth in Clauses 3.4 and 3.5), each Tranche shall be advanced and made available to the Borrower within five (5) Business Days from receipt by the Lender of an executed Drawdown Notice (or such shorter period as the Lender may agree in writing). Each Drawdown Notice must be received by the Lender at least five (5) Business Days prior to the end of the relevant Expiry Date. Each Drawdown Notice shall constitute a separate and independent obligation of the Borrower incorporating the terms of this Loan Agreement. Once a Drawdown Notice has been delivered to the Lender, it is irrevocable. Each Tranche requested to be advanced pursuant to a Drawdown Notice shall be in an amount equal to or greater than the Minimum Drawdown Amount. If the Drawdown Date is the first day of a calendar month and such day is not a Business Day, the Lender shall only be obliged to advance the Tranche to the Borrower on the first Business Day of that month.

 

3.2.2if the Drawdown Date falls on a day which is not a Business Day, the Lender shall only be obligated to pay the Drawdown Amount to the Borrower on the next Business Day in that calendar month.

 

3.3Method of Disbursement

 

The payment by the Lender to the account specified in the Drawdown Notice shall constitute the making of the Loan (or the relevant part thereof) and the Borrower shall thereupon become indebted, as principal and direct obligor, to the Lender in an amount equal to the Loan (or the relevant part thereof) and all interest thereon and other payments due in connection therewith under this Loan Agreement.

 

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3.4Termination or Modification of Funding Commitment

 

The Lender’s commitment to advance each Tranche of the Loan in accordance with the terms of this Loan Agreement is limited in aggregate to the amount of the Total Loan Facility; provided, however, that the Lender, acting in its sole discretion, may terminate or modify its funding commitment pursuant to this Loan Agreement at any time if, in the opinion of the Lender:

 

3.4.1there is any material adverse change in the business or financial condition of the Group, taken as a whole (“Material Adverse Change”);

 

3.4.2on either the date of the Drawdown Notice or at any time up to and including the Drawdown Date:

 

(i)an Event of Default has occurred and is continuing or would result from the borrowing to be made pursuant to the Drawdown Notice; Or

 

(ii)the Borrower’s representations and warranties in Clause 7 or those which are set out in any Security Document would not be true if repeated on each of those dates with reference to the circumstances then existing.

 

3.5Conditions Precedent requirements relative to the Advance of the Loan

 

3.5.1The Lender’s obligation to provide the Loan (or any part thereof) is subject to the prior satisfaction by the Borrower of the following conditions:

 

(i)subject to the condition subsequent referred to in Clause 8.1.30, the provision of a copy of the resolutions of the Borrower’s board of directors authorising the transactions contemplated by this Loan Agreement and the execution and delivery to the Lender of this Loan Agreement and associated documents, including but not limited to, the Security Documents;

 

(ii)the provision of a copy if the resolutions of the MDxHealth DutchCo 1, MDxHealth DutchCo 2, MDxHealth DutchCo 3 and MDxHealth USA boards of directors, and to the extent required, shareholders, authorising the transactions contemplated by this Loan Agreement and the Initial Security Documents and the execution and delivery to the Lender of the Initial Security Documents (in each case to which they are a party);

 

(iii)the provision of copies of the Certificate of Incorporation and the Memorandum and Articles of Association of the Borrower;

 

(iv)subject to the condition subsequent referred to in Clause 8.1.30, all necessary consents of shareholders, warrant holders, and other third parties (including landlords) with respect to the entering into of this Loan Agreement and the execution of associated documents, including but not limited to, any Security Documents, have been obtained;

 

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(v)the provision of a certificate of a director of the Borrower confirming that the borrowing of the Loan Facility in full would not cause any borrowing limit binding on the Borrower to be exceeded;

 

(vi)the provision of specimen signatures, authenticated by a director or the company secretary of the Borrower, of the persons authorised to execute and deliver this Loan Agreement and associated documents, including but not limited to, the Security Documents and the Convertible Loans Agreement, in the resolutions of the board of directors referred to in Clause 3.5.1(i);

 

(vii)the relevant parties having executed and delivered to the Lender the originals of the Security Documents, the Convertible Loans Agreement and this Loan Agreement;

 

(viii)submission and/or filing of the Initial Security Documents and/or perfection of the Security Interests therein, in each case in accordance with all applicable laws in respect of such registration within the time frame provided for under applicable law (including filing of the Pledge Agreement and Dutch Omnibus Security Agreement at each of the UK Intellectual Property Office and the German patent register; and the filing of the US IP Security Agreement at the United States Patent and Trademark Office);

 

(ix)the Borrower’s compliance with Clauses 10.1, 10.3.1(i) and evidence of the Borrower’s compliance with Clause 12.2.3 below;

 

(x)delivery to the Lender of the financial model and forecasts for the Group as requested by the Lender;

 

(xi)delivery to the Lender of the most recent management accounts of the Borrower;

 

(xii)the provision of copies of any policies of insurance maintained by the Borrower or any other Group Company in respect of the Charged Assets including such insurance as are required pursuant to and complying in all respects with the requirements of Clause 12.2.2;

 

(xiii)any such other documentation in form and substance satisfactory to the Lender as the Lender may request prior to signing this Loan Agreement;

 

(xiv)confirmation from the Borrower that the Charged Assets being free and clear of all Security Interests whatsoever expected to the extent permitted by Clause 8.2;

 

(xv)in relation to the ability to drawdown a Tranche, the Borrower having raised a gross amount (before costs and expenses) of at least €4,5000,000 by way of an Equity Financing on or after 30 July 2019, and having provided satisfactory evidence thereof to the Lender; and

 

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(xvi)in relation to the ability to drawdown a Tranche, the Borrower providing satisfactory evidence to the Lender that the amount specified in any Drawdown Notice is less than or equal to the gross amount raised by the Borrower by way of Equity Financing (before costs and expenses) on or after 3o July 2019 minus the amount already drawn down under this Loan Agreement.

 

Each copy document delivered under this Clause 3.5.1 shall be certified as a true and up to date copy by a director or the company secretary of the Borrower.

 

3.6Waiver Possibility

 

If the Lender advances all or any part of the Loan to the Borrower prior to the satisfaction of all or any of the conditions referred to in Clause 3.5 (which the Lender has no obligation to do) the Borrower shall satisfy or procure the satisfaction of such condition or conditions which have not been satisfied within fourteen (14) Business Days of the Drawdown Date for the first Tranche (or within such longer period as the Lender may agree or specify in writing), provided, that the Lender at its discretion may waive the satisfaction of any condition, in whole or in part and with or without conditions, without prejudicing the Lender’s right to require subsequent fulfilment of such conditions.

 

3.7Use of Funds and Charged Assets

 

3.7.1Unless the Lender shall otherwise agree in writing, the Borrower shall use the Loan solely for the purpose of general working capital. The Lender shall not be under any obligation to concern itself with the application of the Loan.

 

3.7.2The Charged Assets charged to the Lender pursuant to the Security Documents shall form security for all monies and obligations owed to the Lender by the Borrower or any other Group Company until expiration of the Security Period.

 

4.TERM

 

4.1Subject to Clause 15.1, this Loan Agreement is effective upon execution by the Lender and the Borrower and shall continue until the later of (i) termination in accordance with its terms; and (ii) the date upon which the Borrower shall have indefeasibly performed and satisfied all its obligations (including making all payments) under this Loan Agreement.

 

4.2If the conditions set out in Clause 3.5 have not been satisfied by the earlier of (i) drawdown of the first Tranche and (ii) 1 November 2019 (except to the extent waived in writing by the Lender), the Lender shall in its sole discretion have the option to either terminate this Loan Agreement or extend the period in which such conditions must be satisfied.

 

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5.REPAYMENT AND PREPAYMENT

 

5.1Repayments

 

5.1.1The Borrower shall repay, in advance, principal (and interest in accordance with Clause 6.1) in respect of each Tranche on each Monthly Repayment Date PROVIDED THAT, subject to Clause 5.1.2, the first twelve (12) monthly payments in relation to each Tranche shall comprise interest only (the “Interest Only Period”), and thereafter shall comprise equal instalments of principal and interest. Prior to each Drawdown Date, the Lender shall prepare a repayment schedule specifying the amounts payable, in accordance with the above principles, on each Monthly Repayment Date and attach such schedule to the relevant Drawdown Notice, as the same may be revised from time to time by the Lender in accordance with Clause 5.1.4 (the “Repayment Schedule”).

 

5.1.2In the event that the Borrower (i) shall have received a minimum of $10,000,000 by way of new Equity Financings occurring on or after 3o July 2019 but before the end of the Interest Only Period (and provided satisfactory evidence thereof to the Lender); and (ii) provided satisfactory evidence to the Lender that a Local Coverage Determination (LCD) affording Medicare coverage for the SelectMDx for Prostate Cancer test has become effective, the Interest Only Period shall be extended to the first eighteen (18) monthly payments in relation to each Tranche (the “Extension Period”) and following the Extension Period the payment period for payments of principal and interest shall be reduced to thirty (30) monthly payments, in relation to each Tranche.

 

5.1.3All payments that the Borrower makes under this Loan Agreement shall, subject to Clause 10.6, be made in full, without any deduction, set-off or counterclaim and in immediately available cleared funds on the due date to an account which the Lender may specify to the Borrower for the purpose.

 

5.1.4The Lender shall have the right to issue a revised Repayment Schedule from time to time if the Lender, in its sole discretion, considers it necessary in order to correct an error or to ensure that, in respect of each Tranche, on the expiry of the relevant Loan Term there will be no amounts owing from the Borrower to the Lender in respect of the relevant Tranche(s) (and the Borrower acknowledges that as a result the monthly amount required to be paid pursuant to Clause 5.1.1 may be increased from time to time in accordance with any revised Repayment Schedule) PROVIDED THAT all monthly repayments after the Interest Only Period shall be equal instalments of principal and interest.

 

5.1.5Subject to Clause 5.1.6, each payment received by the Lender in respect of any Tranche shall be applied as follows:

 

(i)first, to discharge all outstanding fees, costs and expenses of or due to the Lender in respect of such Tranche;

 

(ii)secondly, to discharge all accrued interest in respect of such Tranche; and

 

(iii)thirdly, to reduce the outstanding principal balance of such Tranche.

 

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5.1.6The Lender may in its discretion apply any payment received or recovered from the Borrower to discharge any unpaid amount in respect of any Tranche.

 

5.1.7Any amount repaid or prepaid may not be redrawn.

 

5.1.8If the Drawdown Date is not a Monthly Repayment Date, the Borrower shall pay to the Lender, on the Drawdown Date (by way of deduction by the Lender of the amount of the Tranche actually advanced to the Borrower), the Interim Payment

 

5.1.9If a payment date under Clause 5.1.1 falls on a day which is not a Business Day, the relevant payment date shall be the next Business Day in that calendar month.

 

5.2Currency of Payments

 

Repayment of the Loan and payment of all other amounts owed to the Lender will be paid in the currency in which each Tranche has been provided (the “Contractual Currency”), i.e. in C, unless otherwise agreed by the parties in writing. The Borrower shall bear the cost in the event of and in respect of any conversion by the Lender of an amount received by it in any currency other than the Contractual Currency.

 

5.3Advance Payment

 

On each Drawdown Date with respect to a Tranche, the Borrower shall pay to the Lender (by way of deduction by the Lender from the amount of the Tranche advanced to the Borrower) the advance payment specified above in the Loan Facility Terms with respect to the applicable Tranche (the “Advance Payment”) which shall be held by the Lender and applied in or towards payment of the last repayment in respect of that particular Tranche.

 

5.4Prepayments

 

The Borrower shall be entitled to prepay the Loan, in whole but not in part, subject to the following conditions:

 

5.4.1the Borrower shall submit to the Lender an irrevocable written request to prepay the Loan, at least ten (10) Business Days in advance, indicating the amount to be prepaid and the date of the proposed prepayment;

 

5.4.2on the date of prepayment the Borrower shall pay the Lender an amount equal to:

 

(i)the outstanding principal amount of the Loan;

 

(ii)all accrued and unpaid interest;

 

(iii)in respect of each Tranche, the aggregate of the monthly interest payments scheduled to be paid by the Borrower on each Monthly Repayment Date (as is set out in the relevant Repayment Schedule(s) issued by the Lender) for the period from the date of prepayment to the expiry of the Loan Term, in each case discounted to present value from the applicable Monthly Repayment Date to the date of prepayment at the rate of 4% per annum by way of compensation for any loss of profit that otherwise would have accrued to the Lender if the Loan had not been prepaid;

 

(iv)all unpaid End of Loan Payments;

 

(v)all unpaid fees, costs and expenses; and

 

(vi)all other sums payable by the Borrower to the Lender under this Loan Agreement and/or the Security Documents.

 

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6.INTEREST

 

6.1The Borrower shall pay, in advance during the Interest Only Period and otherwise in arrears, all unpaid and accrued interest in respect of each Tranche outstanding on each Monthly Repayment Date.

 

6.2Subject to Clause 6.3, interest on the principal amount of each Tranche from time to time shall accrue from day to day at a rate of 9.5% per annum (the “Applicable Interest Rate”), from the Drawdown Date until the repayment in full of the Loan. Interest on the Loan and each part thereof shall be paid on each Monthly Repayment Date in the Contractual Currency in the amounts to be specified in the Repayment Schedule.

 

6.3Time of payment of any sum due from the Borrower is of the essence under this Loan Agreement. If the Borrower fails to pay any sum to the Lender on its due date for payment, the Borrower shall pay to the Lender forthwith on demand, interest on such sum (compounded on a monthly basis) from the due date to the date of actual payment (as well after as before judgment) at a rate equal to the Applicable Interest Rate plus 3% per annum. If the Borrower fails to pay any sum within ten (10) Business Days after such sum is due and payable, the Borrower shall pay to the Lender forthwith on demand, a one-off late payment charge of 2% of such sum to compensate the Lender for additional administrative expense.

 

6.4If a payment date under Clause 6.1 falls on a day which is not a Business Day, the relevant payment date shall be the next Business Day in that calendar month.

 

7.REPRESENTATIONS AND WARRANTIES

 

7.1The Borrower warrants and represents to the Lender the following as at the date of this Loan Agreement:

 

7.1.1the Borrower is a public limited company duly organised and validly existing under the laws of Belgium and it, and is resident for Tax purposes solely in Belgium;

 

7.1.2the Borrower and each Group Company has the corporate capacity, and has (subject to the condition subsequent referred to in Clause 8.1.3o) taken all corporate action and obtained all consents, including third party consents, necessary for it:

 

(i)to execute the Loan Documents to which it is or is to be party;

 

(ii)to borrow under this Loan Agreement and to make all the payments contemplated by, and to comply with all its other obligations under the Loan Documents to which it is or is to be party; and

 

(iii)to grant the Lender a first priority Security Interest in respect of the Charged Assets pursuant to the Security Documents to which it is or is to be party;

 

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7.1.3the Borrower’s subsidiaries are each duly organised and validly existing under the laws of their respective countries of incorporation and are resident for Tax purposes solely in their respective country of incorporation;

 

7.1.4the Loan Documents to which the Borrower or any Group Company is or is to be party, do now or, as the case may be, will, upon execution and delivery (and, where applicable, registration as provided for in the Loan Documents):

 

(i)constitute the Borrower’s legal, valid and binding obligations enforceable against it in accordance with their respective terms; and

 

(ii)create legal, valid and binding security interests enforceable in accordance with their respective terms, subject to any relevant insolvency laws affecting creditors’ rights generally;

 

7.1.5the execution and (where applicable) registration by the Borrower and any Group Company of the Loan Documents to which it is or is to be party, and the borrowing by the Borrower and any Group Company of the Loan and its compliance with the Loan Documents to which it is or is to be party, will not involve or lead to a contravention of:

 

(i)any applicable law or other legal requirement;

 

(ii)the constitutional documents of the Borrower or any Group Company; Or

 

(iii)any contractual or other obligation or restriction which is binding on the Borrower or any Group Company or any of their assets;

 

7.1.6all consents, licences, approvals and authorisations required by the Borrower or any Group Company in connection with the entry into, performance, validity and enforceability of the Loan Documents to which it is or is to be party have been or (upon execution thereof) shall have been obtained by the Drawdown Date and are (or upon execution thereof shall be) in full force and effect during the life of this Loan Agreement;

 

7.1.7all financial and other information furnished by or on behalf of the Borrower in connection with the negotiation of the Loan Documents delivered to the Lender pursuant to the Loan Documents was true and accurate in all material respects when given, there are no other facts or matters the omission of which would have made any statement or information contained therein misleading in any material respect and all projections and statements of belief and opinion given to the Lender were made in good faith after due and careful enquiry;

 

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7.1.8the Accounts for the last three financial years prior to the date of this Agreement and for each of the financial years following the date of this Agreement were prepared in accordance with accounting principles and practices generally accepted in Belgium and consistently applied and fairly represent (in conjunction with the notes thereto) the financial condition of the Borrower as at the date to which they were drawn up and the results of the Borrower’s operations during the financial year then ended;

 

7.1.9since publication of the most recent Accounts, there has been no Material Adverse Change;

 

7.1.10it has its centre of main interest (COMI) in Belgium for the purposes of the EU Regulation on Insolvency Proceedings (Recast) (2015/848);

 

7.1.11there is no action, proceeding or claim pending or, so far as the Borrower is aware or ought reasonably to be aware, threatened against any Group Company before any court or administrative agency which might have a material adverse effect on the business, condition or operations of the Borrower or any subsidiary;

 

7.1.12subject to Clause 8.2 the Borrower or the relevant member of the Group owns with good and marketable title all the Charged Assets, free from all security interests and other interests and rights of every kind, and all the Charged Assets are in good operating condition and repair, and are adequate for the uses to which they are being put;

 

7.1.13subject to Clause 8.1.17, the Group has no Financial Indebtedness;

 

7.1.14subject to Clause 8.2, the Group has not granted any security over its assets to any third party except for such security arising in the ordinary course of business (including without limitation any security deposits with landlords retention of title arrangement with suppliers and similar); and

 

7.1.15the Borrower has, as at the date of this Loan Agreement, no direct or indirect subsidiaries other than MDxHealth DutchCo 1, MDxHealth DutchCo 2, MDxHealth DutchCo 3 and MDxHealth USA.

 

7.2The Borrower’s representations and warranties set out in this Loan Agreement shall survive the execution of this Loan Agreement and shall during the Security Period (if capable of repetition) be deemed to be repeated on each Drawdown Date and each Monthly Repayment Date with respect to the facts and circumstances then existing, as if made at such time.

 

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8.UNDERTAKINGS

 

8.1The Borrower undertakes to the Lender (or, in case of Clause 8.1.13, the Lender undertakes to the Borrower) to comply with the following provisions of this Clause 8 at all times during the Security Period, except as the Lender may otherwise agree in writing:

 

8.1.1the Borrower will (and will procure that each Group Company will) obtain, effect and keep effective all permissions, licences, consents and permits which may from time to time be required: (i) in connection with the Charged Assets; and (ii) to conduct its business;

 

8.1.2subject to Clause 8.2, the Borrower will (and to the extent any Group Company has charged its assets pursuant to a Security Document, the Borrower shall procure that this Group Company shall) own only for its own account the Charged Assets free from all Security Interests;

 

8.1.3subject to Clause 8.3, the Borrower will not (and shall procure that each Group Company will not) sell, assign, transfer or otherwise dispose of the Charged Assets or any of its other material assets or any share therein and shall give immediate notice to the Lender of any judicial process or encumbrance affecting the Charged Assets;

 

8.1.4the Borrower will provide to the Lender (on a Group consolidated basis) with:

 

(i)the following information by way of a monthly report:

 

(a)details of any changes to the management/directors of any Group Company;

 

(b)details of any Group Company incorporated or acquired or proposed to be incorporated or acquired on or after the date of this Loan Agreement; and

 

(ii)such other information (financial or otherwise) as the Lender may request (acting reasonably) from time to time concerning any Group Company and its affairs (including, without limitation, information concerning the Charged Assets, its assets from time to time and any request (acting reasonably) for amplification or explanation of any item in the financial statements, budgets or other material provided by the Borrower under this Loan Agreement);

 

8.1.5the Borrower will provide to the Lender all documents, confirmations and evidence required by the Lender and necessary to satisfy its “know your customer” requirements or similar identification checks in order to meet its obligations from time to time under applicable money laundering, or similar, laws and regulations;

 

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8.1.6the Borrower will provide the Lender (on a Group consolidated basis) with its monthly consolidated management accounts and any Group management accounts (each certified by a director) as fairly presenting the data reflected, at the earlier of: (i) thirty (30) calendar days of the end of each calendar month; or (ii) when such information is provided to any shareholder or investor in the Borrower (to include notification of the commencement of litigation by or against the Borrower) and the Borrower will also provide copies of any announcement made public by the Borrower (or any Group Company) concerning dividends, annual or interim financial positions and affairs of the Borrower (or any Group Company), and copies of any other documents required to be filed with applicable statutory or regulatory authorities or agencies in relation to the activities of the Borrower (or any Group Company);

 

8.1.7the Borrower will provide the Lender (on a Group consolidated basis) with annual audited (if applicable) financial statements at the earlier of (i) provision of such statements to any shareholder or investor in the Borrower or (ii) within one hundred and eighty (18o) calendar days of the end of each fiscal year of the Borrower, in each case including a statement of operations, balance sheet, statement of cash flows and shareholders’ equity, certified by a firm of chartered accountants of recognised national standing;

 

8.1.8the Borrower will before the start of each financial year and in any event within ten (10) calendar days of their approval by its board of directors, provide the Observer (on a Group consolidated basis) with a budget showing: (i) a projected consolidated balance sheet as of the end of each financial year; (ii) a projected profit and loss account; and (iii) a cash flow forecast for the forthcoming financial year (a “Budget”);

 

8.1.9the Borrower will provide the Observer (on a Group consolidated basis) with any revised version of a Budget previously provided to the Lender pursuant to Clause 8.1.8 within ten (to calendar days) of the approval by its board of directors of such revised Budget;

 

8.1.10the Borrower will provide the Observer with (and shall procure, following the occurrence of an Event of Default, that each Group Company will provide the Observer with) copies of all board packs, notices, minutes, consents and other material that it provides to its board of directors at the same time they are to its board of directors;

 

8.1.11the Borrower will provide the Lender with (and shall procure, following the occurrence of an Event of Default, that each Group Company will provide the Lender with) all documents dispatched by the Borrower and each Group Company to its shareholders, or its creditors generally at the same time as they are dispatched;

 

8.1.12the Borrower will grant (and shall procure, following the occurrence of an Event of Default, that each Group Company will grant) the Lender the right to have a representative to meet with its managing director and finance director once every six months throughout the Security Period to review and discuss the operating performance and financial condition of the Group. In addition, the Lender shall be entitled to have a representative attend all meetings of the Borrower’s (and shall procure, following the occurrence of an Event of Default, each Group Company’s) board of directors in a non-voting observer capacity (the “Observer”). The Borrower agrees (and shall procure, following the occurrence of an Event of Default, that each Group Company agrees) to give notice of all board meetings to the Lender (to the extent it has not already given this to the Observer) at the same time as to its board of directors. The Lender agrees that, upon written request of the Borrower, it will promptly replace the Observer if the Borrower has reasonable grounds for such request (with details of such grounds being provided to the Lender with any such request);

 

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8.1.13the Lender shall procure that the Observer will, prior to receiving any information to be provided under this Loan Agreement, enter into confidentiality, discretion and no-trade commitments in form and substance satisfactory to the Borrower and the Lender shall further procure that the Observer shall upon request of the board of directors, in case of a conflict of interest in respect of any topic discussed on a meeting of any board of directors, leave the meeting for the period during which such topic is discussed and not receive any information relating thereto;

 

8.1.14the Borrower will (and will procure that each Group Company will) maintain in force and promptly obtain or renew, and will promptly send certified copies to the Lender of, all consents required:

 

(i)for the Borrower and each Group Company to perform its obligations under the Loan Documents, as relevant;

 

(ii)for the validity or enforceability of the Loan Documents; and

 

(iii)for the Borrower and each Group Company to continue to own the Charged Assets, and the Borrower will, and will procure that each Group Company will, comply with the terms of all such consents;

 

8.1.15the Borrower will notify the Lender as soon as it becomes aware of:

 

(i)the occurrence of an Event of Default; or

 

(ii)any matter which indicates that an Event of Default has occurred, may have occurred or is likely to occur, and will thereafter keep the Lender fully up to date with all developments;

 

8.1.16the Borrower will (and shall ensure that each Group Company will) maintain adequate risk protection through insurances on and in relation to its business and assets to the extent reasonably required on the basis of good business practice taking into account, inter alia, its (and any Group Company’s) financial position and nature of operations. All insurances must be with reputable independent insurance companies or underwriters;

 

8.1.17the Borrower shall not (and shall ensure that no Group Company will) incur or allow to remain outstanding any Financial Indebtedness, except:

 

(i)under this Loan Agreement;

 

(ii)Existing Financial Indebtedness;

 

(iii)subject to Clause 8.1.26, where a Group Company is lending to or borrowing from the Borrower or another Group Company;

 

(iv)non-speculative hedging transactions entered into in the ordinary course of business in connection with protection against interest rate or currency fluctuations; or

 

(v)arising in the ordinary course of business with suppliers of goods or services with a maximum duration of one hundred and eighty (180) days;

 

(vi)prior to the occurrence of an Event of Default, finance leases entered into by Group Companies in an aggregate amount, at any time, of up to $400,000;

 

(vii)in an aggregate amount, at any time, for all Group Companies of up to $ioo,000; and

 

(viii)performance bonds, advance payments, rental guarantees or similar instruments) entered into in the ordinary course of business in an aggregate amount (excluding the amount of any bond or surety issued in relation to a Group pension fund or leasehold improvement), at any time, for all Group Companies of up to $250,000;

 

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8.1.18notwithstanding Clause 8.1.17, the Borrower shall not (and shall ensure that no Group Company will) incur or allow to remain outstanding any Financial Indebtedness (other than the Existing Financial Indebtedness) owing to any shareholder of a Group Company (excluding other Group Companies) or any persons or companies related to them, unless such Financial Indebtedness is on terms (including interest, repayment and subordination) satisfactory to the Lender;

 

8.1.19subject to Clause 8.2, the Borrower shall not (and shall ensure that no other Group Company will) create or permit to subsist any Security Interest over any of its assets;

 

8.1.20subject to Clause 8.2, the Borrower shall not (and shall ensure that no other Group Company will):

 

(i)sell, transfer or otherwise dispose of any of its assets on terms whereby they are leased to or intended to be re-acquired by any Group Company;

 

(ii)sell, transfer or otherwise dispose of any of its receivables;

 

(iii)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

 

(iv)enter into any other preferential arrangement having a similar effect) in circumstances where the arrangement or transaction is entered into primarily as a method of raising Financial Indebtedness or of financing the acquisition of an asset;

 

8.1.21the Borrower will not (and shall ensure that no other Group Company will) declare and/or make or agree to make (whether in the relevant constitutional documents or otherwise) any distribution by way of dividend or otherwise without the prior written consent of the Lender, except for a distribution by a Group Company to a Material Group Company;

 

8.1.22the Borrower shall be responsible for all costs associated with the Charged Assets including all tax assessments, insurance premiums, operating costs and repair and maintenance costs as well as any fees associated with registering of any Security Interest granted in connection with this Loan;

 

8.1.23the Borrower shall at the request of the Lender (acting reasonably) from time to time (and shall procure that each Group Company shall) promptly execute and deliver such further documents creating Security Interests in favour of the Lender over such assets and in such form as the Lender may require in its discretion from time to time to: (i) secure all monies, obligations and liabilities of the Borrower and/or any Group Company to the Lender; (ii) facilitate the realisation of the Charged Assets; and/or (iii) exercise the powers conferred on the Lender or a receiver or administrator appointed under any Security Document, from time to time;

 

8.1.24subject to Clause 8.3, the Borrower shall not (and shall procure that each Group Company shall not) by one or a series of transactions, whether related or not and whether at one time or over a period of time, sell, lease, convey, transfer, assign, license or otherwise dispose of or deal with all or any material part of its property, assets or undertaking, including (but not limited to) by any form of sale and leaseback, invoice discounting or factoring PROVIDED THAT in the case of the Intellectual Property of a Group Company, the relevant Group Company may, in the normal course of business and on an arm’s length basis for good and valuable consideration, grant non-exclusive licenses and sublicenses of the Intellectual Property to third parties;

 

8.1.25subject to Clause 8.3, the Borrower shall (and it shall procure each Group Company shall) :

 

(i)preserve and maintain the subsistence and validity of all Intellectual Property necessary for its business;

 

(ii)use reasonable endeavours to prevent, and take action against, any infringement in any material respect of the Intellectual Property necessary for its business;

 

(iii)prosecute and maintain all applications and registrations in place in respect of the Intellectual Property which it has now or makes hereinafter and pay all registration fees and taxes necessary to maintain such Intellectual Property in full force and effect and record its interest in such Intellectual Property unless such Intellectual Property has been the subject of a valid resolution of a quorate and duly-convened meeting of the board of directors confirming that any such Intellectual Property are either (i) immaterial or (ii) no longer required in the ordinary course of the Group’s business;

 

(iv)not use or permit the Intellectual Property necessary for its business to be used in a way or take any step or omit to take any step in respect of such Intellectual Property which may materially and adversely affect the existence or value of such Intellectual Property or imperil the right of the Group to use such Intellectual Property; and

 

(v)not discontinue the use of such Intellectual Property, unless such Intellectual Property has been the subject of a valid resolution of a quorate and duly-convened meeting of the board of directors confirming that any such Intellectual Property is either (i) immaterial or (ii) no longer required in the ordinary course of the Group’s business;

 

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8.1.26the Borrower will (and will procure that each Group Company will) not transfer by way of inter-company loan or otherwise any cash proceeds or cash equivalents to any Group Company that is not a Material Group Company;

 

8.1.27the Borrower will (and will procure that each Group Company will) not amend any of the terms of, or increase any amounts owing under, the Existing Financial Indebtedness;

 

8.1.28the Borrower shall not (and shall procure that no Group Company shall) acquire any Affiliate (other than by way of incorporation including, for the avoidance of doubt, acquisition of a shelf company) without the prior written consent or the Lender;

 

8.1.29the Borrower shall not (and shall procure that no Group Company shall) incorporate any Affiliate (or acquire an Affiliate by way of incorporation including, for the avoidance of doubt, acquisition of a shelf company) without first notifying the Lender and if the Lender shall so request (acting reasonably) after receipt of such notification, the Borrower shall procure that such Affiliate shall promptly execute and deliver to the Lender documents (in such form as the Lender may require (acting reasonably)) creating Security Interests in favour of the Lender over all or materially all of the assets of such Affiliate; and

 

8.1.30the Borrower shall procure that a resolution is proposed to shareholders of the Borrower to approve Clause 9.1.13, by no later than the Annual General Meeting of Borrower to be held in 2020, in accordance with Article 556 of the Belgian Companies Code (or the successor provision in the Belgian Companies and Associations Code) and shall promptly upon such resolution being approved provide a copy of such resolution to the Lender.

 

8.2Group Companies shall be permitted to have the following Security Interests:

 

8.2.1a Security Interest provided to the Lender under this Loan Agreement or any Security Document;

 

8.2.2a Security Interest arising in the ordinary course of business (including without limitation any security deposits with landlords, retention of title arrangement with suppliers and similar); and

 

8.2.3the Security Interest of the Borrower specified in Note 14 of the Borrower’s Annual Report 2018; and

 

8.2.4prior to the occurrence of an Event of Default, a Security Interest in favour of the financer over the assets acquired pursuant to finance leases entered into by a Group Companies in an aggregate amount, at any time, for all Group Companies of up to $400,000.

 

8.3Prior to the occurrence of an Event of Default, Group Companies shall be entitled to sell, assign, transfer or otherwise dispose of any of its assets:

 

8.3.1to a Material Group Company;

 

8.3.2provided such assets are replaced by assets of a comparable or superior type, value and quality (as determined by the Borrower, acting reasonably) and provided such replacement assets are subject to a Security Interest in favour of the Lender to the same extent (if at all) the sold, assigned, transferred or other disposed of assets were;

 

8.3.3to the extent they are obsolete or redundant;

 

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8.3.4pursuant to non-exclusive intellectual property licences in the ordinary course of business;

 

8.3.5to the extent they are non-cash generating and are not anticipated by the Borrower (acting reasonably) to be cash generating in the future in the ordinary course of business;

 

8.3.6to extent they do not relate to or are not otherwise required for the operation of the SelectMDX and/or ConfirmMDX businesses (or any other material business of the Borrower) in the ordinary course;

 

8.3.7a licence of the Select IP for non-current markets such as point of care or primary care settings; and

 

8.3.8in an aggregate amount, at any time, for all Group Companies of up to $100,000.

 

8.4For the avoidance of doubt and subject always to Clause 8.1.20(ii), nothing in the Loan Documents will restrict the Group Companies’ right to use a third party as collection agent / service provider for the collection of receivables and related services.

 

9.EVENTS OF DEFAULT

 

9.1An Event of Default occurs if:

 

9.1.1the conditions set out in Clause 3.5 (except to the extent waived in writing by the Lender) are not satisfied within forty-five (45) days of the execution of this Loan Agreement unless the period for satisfaction is extended in accordance with Clause 4.2;

 

9.1.2any Group Company fails to pay when due and payable or (if so payable) on demand any sum payable under this Loan Agreement or the Security Documents or under any document relating to the Security Documents unless its failure to pay is solely caused by administrative or technical error and payment is made within five (5) Business Days of its due date;

 

9.1.3any other breach by any Group Company (as relevant) occurs of any provision of this Loan Agreement or any Security Document or the Borrower or any Group Company does not comply with, perform or observe any other obligation accepted or undertaking given by it to the Lender, unless the Lender (at its sole discretion) notifies the Borrower in writing that it is satisfied that the breach has not put any of the security for the Loan immediately at risk and that it considers that the breach is capable of remedy. No Event of Default under this Clause will occur if the failure to comply with, perform or observe is capable of remedy and is remedied within fifteen (15) Business Days of the earlier of (A) the Lender giving notice to the Borrower and (B) the Borrower becoming aware of the failure to comply, perform or observe;

 

9.1.4any representation, warranty or statement made by, or by an officer of, any Group Company in this Loan Agreement or the Security Documents or in the Drawdown Notice or any other notice or document relating to this Loan Agreement or any other Security Document is incorrect, untrue or misleading in any material respect when it is made or deemed repeated. No Event of Default under this clause will occur if the circumstances underlying the misrepresentation are capable of remedy and are remedied within fifteen (15) Business Days of the earlier of (A) the Lender giving notice to the Borrower and (B) the Borrower becoming aware of the misrepresentation;

 

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9.1.5Financial Indebtedness of any Group Company in an amount which the Lender (acting reasonably) considers to be material is not paid when due or any event of default occurs in accordance with the terms of the such Financial Indebtedness or any Security Interest over any of the assets of any Group Company is enforced;

 

9.1.6any order shall be made by any competent court, a petition presented or any resolution shall be passed by any Group Company for the appointment of a liquidator, administrator or receiver of, or for the winding up of, any Group Company or a moratorium is imposed or declared over any or all of the assets and business of any Group Company;

 

9.1.7an encumbrancer takes possession of or a receiver, liquidator, supervisor, compulsory manager, trustee, administrator or similar official is appointed over the whole or, in the opinion of the Lender, any material part of, the assets of any Group Company or a distress, execution or other process is levied or enforced upon or sued out against the whole or, in the opinion of the Lender, a material part of the assets of any Group Company;

 

9.1.8an administration application is presented or made for the making of an administration order or a notice of intention to appoint an administrator is issued by any Group Company or its directors or by the holder of Security Interest or a notice of appointment of an administrator is filed by any person with the court;

 

9.1.9any judgment made against any Group Company is not paid, stayed or discharged within fourteen (14) days;

 

9.1.10any Group Company shall stop payment or shall be unable to, or shall admit inability to, pay its debts as they fall due, or shall be adjudicated or found insolvent, or shall enter into any composition or other arrangement with its creditors generally;

 

9.1.11any event shall occur which under the law of any jurisdiction to which any Group Company is subject has an effect equivalent or similar to any of the events referred to in Clause 9.1.6, 9.1.7, 9.1.8, 9.1.9 or 9.1.1o;

 

9.1.12any Group Company ceases, threatens to cease, or suspends carrying on its business or a part of its business;

 

9.1.13there is a Change of Control in any Group Company; for purposes of this Clause 9.1.13, a “Change of Control” shall include (without limitation) any of the following events (whether in one or in a series of related transactions): merger, consolidation or reorganisation of a Group Company with or into any person other than a Group Company, the sale of all or (in the opinion of the Lender) substantially all the assets of any Group Company to any person other than a Group Company; the sale or issue of shares or securities of a Group Company (whether by that Group Company or by shareholders of that Group Company) resulting in persons who beneficially and/or legally hold a majority of shares and/or voting power of that Group Company as at the date of this Loan Agreement no longer holding such majority; the exclusive license of all or a material portion of any Group Company’s Intellectual Property to any other entity or person, other than a Group Company; PROVIDED THAT the Lender may agree, by written notice to the Borrower, that a Change of Control shall not be deemed an Event of Default, but that nevertheless the consequences set forth in Clause 9.2.1 and 9.2.2 shall apply, and in such event the Loan, all accrued interest and all other amounts accrued or owing under this Loan Agreement and the Security Documents shall be due and payable simultaneously with the closing of the Change of Control transaction;

 

9.1.14it becomes unlawful or impossible: (i) for the Borrower and/or each Group Company (as relevant) to discharge any liability under the Loan Documents or to comply with any other obligation which the Lender considers material under the Loan Documents or the Security Documents; or (ii) for the Lender to exercise or enforce any right under, or to enforce any Security Interest created by this Loan Agreement or the Security Documents;

 

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9.1.15any provision of the Loan Documents proves to have been or becomes invalid or unenforceable, or a Security Interest created by the Security Documents proves to have been or becomes invalid or unenforceable or such a Security Interest proves to have ranked after, or loses its priority to, another Security Interest of a third party or any other third party claim or interest, provided however that if the Borrower and/or any Group Company proposes replacement security which the Lender accepts, and such replacement security is constituted in a manner acceptable to the Lender within such period of time as the Lender may require, such event shall cease to constitute an Event of Default;

 

9.1.16the security constituted by the Security Documents is in any way materially imperilled or in jeopardy provided however that if the Borrower and/or any Group Company proposes replacement security which the Lender accepts, and such replacement security is constituted in a manner acceptable to the Lender within such period of time as the Lender may require, such event shall cease to constitute an Event of Default;

 

9.1.17any other event (whether related or not) occurs which constitutes a Material Adverse Change (in the reasonable opinion of the Lender), from the position applicable as at the date of this Loan Agreement;

 

9.1.18any event of default (howsoever described to the extent there are any) specified in the Security Documents shall occur; or

 

9.1.19the Borrower fails to comply with its obligation in Clause 8.1.3o or the general shareholders’ meeting of the Borrower does not approve the resolution referred to in that Clause in accordance with Article 556 of the Belgian Companies Code (or the successor provision in the Belgian Companies and Associations Code).

 

9.2Lender’s Rights

 

On or at any time following the occurrence of any Event of Default the Lender may:

 

9.2.1serve on the Borrower a notice stating that all obligations of the Lender to the Borrower under this Loan Agreement including (without limitation) the obligation to advance the Loan (or any part thereof) are terminated;

 

9.2.2serve on the Borrower a notice stating that, the Loan, all interest and all other amounts accrued, owing or payable under the Loan Documents are immediately due and payable;

 

9.2.3declare the Security Documents to be enforceable; and/or

 

9.2.4take any other action which, as a result of the Event of Default or any notice served under Clauses 9.2.1 or 9.2.2 above, the Lender is entitled to take under the Security Documents or any applicable law.

 

9.3End of Lender’s Obligations

 

On the service of a notice under Clause 9.2.1 and/or Clause 9.2.2, all the obligations of the Lender to the Borrower under this Loan Agreement shall terminate.

 

9.4Acceleration

 

On the service of a notice under Clause 9.2.2, the following sums shall become immediately due and payable:

 

9.4.1the outstanding principal amount of the Loan;

 

9.4.2all accrued and unpaid interest;

 

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9.4.3in respect of each Tranche, the aggregate of the monthly interest payments scheduled to be paid by the Borrower on each Monthly Repayment Date (as is set out in the Repayment Schedule(s) issued by the Lender) for the period from the date of service of the notice under Clause 9.2.2 to the expiry of the relevant Loan Term, in each case discounted to present value from the applicable Monthly Repayment Date to the date of prepayment at the rate of 4% per annum (provided that such discount will not apply in case of an Event of Default under Clause 9.1.2 which is not remedied within 10 Business Days after the occurrence of such Event of Default) by way of compensation for any loss of profit that otherwise would have accrued to the Lender if an Event of Default had not occurred;

 

9.4.4all unpaid End of Loan Payments;

 

9.4.5all unpaid fees, costs and expenses; and

 

9.4.6all other sums payable by the Borrower to the Lender under the Loan Documents.

 

9.5Waiver of Event of Default

 

The Lender, at its sole and absolute discretion, may waive any Event of Default hereunder, prior to or after the event or events giving rise thereto, PROVIDED THAT such waiver may be effected only by written notice provided by the Lender to the Borrower to that effect (and subject further to Clause 15.3 below); it being understood and acknowledged, that if and so long as no notice of waiver of an Event of Default was so provided, such Event of Default shall be deemed as having occurred and in effect for all purposes hereunder.

 

10.FEES, EXPENSES AND TAXES

 

10.1Transaction Fee

 

The Transaction Fee shall be paid by the Borrower to the Lender upon the execution of this Loan Agreement.

 

10.2End of Loan Payments

 

The End of Loan Payment shall accrue on the amount of each Tranche and shall be payable in respect of each Tranche on the earlier of: (i) the date on which the Loan falls due for repayment in full; and (ii) the date on which the final payment by the Borrower in respect of the relevant Tranche is due for payment.

 

10.3Documentary Costs

 

10.3.1The Borrower shall promptly pay to the Lender on the Lender’s demand, the reasonable legal expenses plus applicable VAT and disbursements incurred by the Lender in connection with:

 

(i)the negotiation, execution, preparation and perfection of the Loan Documents and the transactions contemplated hereby and thereby up to $100,000 it being agreed by the Lender that it shall apply the $50,000 commitment deposit it has already received against such legal expenses;

 

(ii)the negotiation, execution, preparation and perfection of Security Documents after the date of this Loan Agreement and the transactions contemplated thereby, it being understood that to the extent that the related legal work is performed prior to 1 November 2019, it will be subject to the cap in paragraph (i) above;

 

(iii)any amendment or supplement to the Loan Documents, or any proposal for such an amendment to be made; and

 

(iv)any consent or waiver by the Lender concerned under or in connection with the Loan Documents or any request by the Borrower for such a consent or waiver.

 

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10.3.2The Borrower shall promptly pay to the Lender on the Lender’s demand, the legal expenses plus applicable VAT (if any and to the extent the Lender is not entitled to a credit or repayment in respect of such VAT from the appropriate Tax authority) and disbursements incurred by the Lender in connection with any step taken by the Lender with a view to the protection or enforcement of any right or Security Interest created by the Loan Documents.

 

10.4Certain taxes and duties

 

10.4.1The Borrower shall promptly pay any documentary, stamp or other equivalent Tax or duty payable on or by reference to the Loan Documents or local law equivalent, and shall, on the Lender’s demand, fully indemnify the Lender against any costs, losses, liabilities and expenses resulting from any failure or delay by the Borrower to pay such a tax.

 

10.4.2Where the Borrower is required by the Loan Documents to pay, reimburse or indemnify the Lender for any fee, cost and expense, the Borrower, at the same time as it pays, reimburses or indemnifies (as the case may be) the Lender shall also pay, reimburse or indemnify such part thereof as represents VAT, save to the extent that the Lender is entitled to a credit or repayment in respect of such VAT from the appropriate Tax authority.

 

10.5Recovery of Overdue Fees

 

Without prejudice to any other provisions of this Loan Agreement, the Lender shall be entitled (and the Borrower hereby irrevocably authorises the Lender), at any time and from time to time, to apply any credit balance (whether or not then due) to which the Borrower is then entitled on any account with the Lender in (or towards) satisfaction of the sum or sums from time to time owing by the Borrower to the Lender under and/or pursuant to the Loan Documents. The Lender is not obliged to exercise its rights under this Clause 10.5, but if the rights are exercised, the Lender shall give notice to the Borrower of any such application promptly thereafter.

 

10.6Liability for Taxes

 

10.6.1The Borrower 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 it must make a Tax deduction (or that there is any change in the rate or the basis of a Tax deduction) notify the Lender.

 

10.6.2Subject to Clause 10.6.5, if the Borrower is required to make any Tax deduction by law from any payment due under the Loan Documents, the payment due from the Borrower shall be increased to an amount equal to the amount which would have been due for payment if no Tax deduction had been required, reduced by any credit, relief or remission for, or repayment of such Tax deduction to which Lender (acting reasonably) determines it is both entitled to and, in the case of a credit, able to utilise. If such entitlement, utilisation and/or the amount thereof would only become known after the date of payment, Borrower will make its payment without taking into account any credit, relief or remission and Lender will repay to Borrower an amount equal to such credit, relief or remission once the Lender has (acting reasonably) determined such credit, relief or remission has been determined and, in the case of a credit, utilised.

 

10.6.3If the Borrower is required to make a Tax deduction, the Borrower shall make that Tax deduction and any payment required in connection with that Tax deduction within the time allowed and in the amount required by law.

 

10.6.4Within thirty (30) days of making either a Tax deduction or any payment required in connection with that Tax deduction, the Borrower shall deliver to the Lender evidence reasonably satisfactory to it that the Tax deduction has been made or (as applicable) any appropriate payment paid to the relevant taxing authority.

 

10.6.5A payment shall not be increased under Clause 10.6.2 by reason of a Tax deduction, if (i) the Lender has assigned, prior to the due date for payment, this Loan Agreement to an Assignee who is not a Qualifying Lender on the date of such assignment; or (ii) the payment could have been made to the 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 which is not a change resulting from the entry into effect of the Multilateral Convention to Implement Tax Treaty Related Measures to prevent BEPS (“MLI”).

 

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10.6.6The Lender shall, upon request, from the Borrower promptly provide it with such evidence as it may require (acting reasonably) to show that the Lender is at the date of this Loan Agreement a company resident in the United Kingdom as well as any other evidence reasonably requested by the Borrower and necessary to establish that the Lender is a Qualifying Lender.

 

10.6.7The Lender shall cooperate in completing any procedural formalities necessary for the Borrower to obtain authorisation to make payments without or, as the case may be, with a reduced Tax deduction.

 

10.7Drawdown Fees

 

10.7.1The Drawdown Fee shall be due and payable in respect of each Tranche as from the relevant Drawdown Date and shall be subject to the provisions of the Convertible Loans Agreement.

 

10.8Illegality and Increased Costs

 

10.8.1If it is or becomes contrary to any law or regulation for the Lender to make available the Loan Facility or to maintain its obligations to do so or fund the Loan, the Lender shall promptly notify the Borrower whereupon: (a) the Lender’s obligations to make the Loan Facility available shall be terminated; and (b) the Borrower shall be obliged to prepay the Loan either: (i) forthwith; or (ii) on a future specified date on or before the latest date permitted by the relevant law or regulation.

 

10.8.2If the result of any change in (or in the interpretation, administration or application of), or to the generally accepted interpretation or application of, or the introduction of, any law or regulation is to subject the Lender to Taxes or change the basis of the payment of Taxes by the Lender with respect to any payment under this Loan Agreement (other than Taxes on the overall net income, profits or gains of the Lender), then: (i) the Lender shall notify the Borrower in writing of such event promptly upon its becoming aware of the same; and (ii) the Borrower shall on demand, made at any time whether or not the Loan has been repaid, pay to the Lender the amount of the increased costs which the Lender has suffered as a result.

 

11.INDEMNITIES

 

11.1Indemnity for Non-Scheduled Payments

 

Without derogating from, and without prejudice to the Lender’s right under, Clause to above, the Borrower shall indemnify the Lender fully on its demand in respect of all expenses, liabilities and losses which are suffered or incurred by the Lender, as a result of or in connection with:

 

11.1.1any Tranche not being borrowed on the date specified in the Drawdown Notice for any reason other than a default by the Lender;

 

11.1.2any failure (for whatever reason) by the Borrower to make payment of any amount due under the Loan Documents on the due date or, if so payable, on demand; or

 

11.1.3the occurrence and/or continuance of an Event of Default and/or the acceleration of repayment of the Loan under Clause 9.4, and in respect of any Taxes for which the Lender is liable or held liable in connection with any amount paid or payable to the Lender (whether for its own account or otherwise) under the Loan Documents (other than Taxes on the overall net income, profits or gains of the Lender).

 

11.2The Borrower shall within three (3) Business Days of demand, indemnify the Lender against any cost, loss or liability incurred by the Lender as a result of funding, or making arrangements to fund, any portion of the Total Loan Facility which is not advanced by the Lender to the Borrower by the end of the Expiry Date, other than by reason of default or negligence by the Lender.

 

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11.3Third Party Claims Indemnity

 

The Borrower shall indemnify the Lender fully on its demand in respect of claims, demands, proceedings, liabilities, taxes, losses and expenses of every kind, including without limitation legal fees and expenses (“liability items”) which may be made or brought against, or incurred by, the Lender, in any country, in relation to:

 

11.3.1any action lawfully taken, or omitted or neglected to be taken, under or in connection with the Loan Documents by the Lender or by any receiver appointed under the Security Documents after the occurrence of any Event of Default; and

 

11.3.2any breach or inaccuracy of any of the representations and warranties contained in Clause 7 of this Loan Agreement or in the Security Documents or any breach of any undertaking contained in Clause 8 hereof or elsewhere in the Loan Documents.

 

12.RISK AND INSURANCE

 

12.1All risk of loss, theft and damage of and to the Charged Assets from any cause whatsoever shall be the risk of the Borrower, and no such event shall relieve the Borrower of any obligation under a Drawdown Notice.

 

12.2The Borrower shall:

 

12.2.1bear all risk of loss of or damage to the Charged Assets whether insured against or not;

 

12.2.2at its expense, (i) keep the Charged Assets insured against loss or damage, and (ii) maintain liability and other insurance, in each case as ordinarily insured against by other owners in businesses similar to Borrower’s. All such policies of insurance shall be in such form, with such companies, and in such amounts as reasonably satisfactory to Lender;

 

12.2.3procure that all policies of property insurance shall contain a lender’s loss payable endorsement, in a form satisfactory to the Lender, showing Lender as an additional loss payee, and all liability insurance policies shall show the Lender as an additional insured within 3o days after the first Drawdown Date;

 

12.2.4upon request produce to the Lender the policy and all premium receipts;

 

12.2.5promptly notify the Lender of any event which may give rise to a claim in excess of $200,000 under the policy and upon request (but only following an Event of Default) irrevocably appoint the Lender to be its sole agent to negotiate agree or compromise such claim; and

 

12.2.6upon request following the occurrence of an Event of Default, assign by way of security or a complete assignment to the Lender the Borrower’s rights under such policy and irrevocably appoint the Lender to institute any necessary proceedings.

 

13.RELEASE OF SECURITY

 

Upon expiry of the Security Period, the Lender shall take appropriate action, at the request and cost of the Borrower, to release the Security Interest over the Charged Assets.

 

14.NOTICES

 

14.1Any notice, demand or other communication (“Notice”) to be given by any party under, or in connection with, this Loan Agreement shall be in writing and signed by or on behalf of the party giving it. Any Notice shall be served by sending it by email addresses set out in Clause 14.2, or delivering it by hand or by pre-paid first class post to the addresses set out in Clause 14.2 and in each case marked for the attention of the relevant party set out in Clause 14.2 (or as otherwise notified from time to time in accordance with the provisions of this Clause 14). Any Notice so served by fax, post or hand shall be deemed to have been duly given or made as follows:

 

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14.1.1if sent by email, at the time of transmission; or

 

14.1.2in the case of delivery by hand, when delivered, or

 

14.1.3in the case of delivery by first class post, on the second Business Day after posting,

 

PROVIDED THAT in each case where delivery by fax or by hand occurs after 5pm on a Business Day (local time in the place of receipt) or on a day which is not a Business Day, service shall be deemed to occur at gam on the next following Business Day (local time in the place of receipt).

 

References to time in this Clause are to local time in the country of the addressee.

 

14.2The addresses and fax number of the parties for the purpose of Clause 14 are as follows:

 

14.2.1Lender:

 

Address:Amf Building, ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇

 

For the attention of: The Directors

 

with a copy to:

 

Lender’s law firm: Bird & Bird LLP

 

Address:▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇,

▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇

 

Email: ▇▇▇▇▇▇.▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇

 

For the attention of: Struan ▇▇▇▇▇▇▇▇▇

 

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14.2.2Borrower:

 

Address:Rue d’▇▇▇▇▇▇ ▇▇, ▇▇▇▇

▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇

For the attention of: CEO

Email: ▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇

 

With a copy to each of:

 

MDxHealth Inc.

▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇

▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇

For the attention of: General Counsel

Email: ▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇

 

and

 

▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ▇▇▇▇/▇▇▇▇

▇▇▇▇▇▇▇▇▇▇ ▇▇▇

▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇

For the attention of: ▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇

Email: ▇▇▇▇.▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ and ▇▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇

 

14.3A party may notify the other party to this Loan Agreement of a change to its name, relevant addressee, address or email address for the purposes of this Clause 14, PROVIDED THAT such notice shall only be effective on:

 

14.3.1the date specified in the notification as the date on which the change is to take place; or

 

14.3.2if no date is specified or the date specified is less than five (5) Business Days after the date on which notice is given, the date following five (5) Business Days after notice of any change has been given.

 

14.4In proving service it shall be sufficient to prove that the envelope containing such notice was properly addressed and sent or delivered to the address shown thereon or that the facsimile transmission was made and a facsimile confirmation report was received, as the case may be.

 

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15.GENERAL

 

15.1All agreements, covenants, representations, warranties and indemnities of the Borrower contained in this Loan Agreement or in the Drawdown Notices or other documents delivered pursuant hereto or in connection herewith and continuing, shall survive and remain binding following the execution and delivery, and the expiration, cancellation or other termination of this Loan Agreement and/or the Drawdown Notice until expiration of the Security Period.

 

15.2If the Borrower shall fail to perform any of its obligations under any Drawdown Notice duly and promptly, the Lender may, at its option and at any time, perform the same without waiving any default on the part of the Borrower, or any of the Lender’s rights. The Borrower shall reimburse the Lender, within five (5) Business Days after notice thereof is given to the Borrower, for all expenses and liabilities incurred by the Lender in the performance of the Borrower’s obligations.

 

15.3No failure to exercise, nor any delay in exercising, on the part of the Lender, any right or remedy hereunder shall operate as a waiver, nor shall any single or partial exercise of any right or remedy prevent any further or other exercise or the exercise of any other right or remedy. The rights and remedies provided in this Loan Agreement are cumulative and not exclusive of any rights or remedies provided by law or in equity. Waiver by the Lender of any default shall not constitute waiver of any other default.

 

15.4The Borrower may not assign or transfer its rights, benefits and obligations under this Loan Agreement. The Lender shall have the right, in its sole discretion, to assign, sell, pledge, grant a Security Interest in or otherwise encumber its rights under this Loan Agreement and/or one or more Drawdown Notices to any (i) Related Fund; (ii) or upon the occurrence of an Event of Default or in connection with a sale of multiple loans made by the Lender as part of a portfolio transaction, to any third party (other than a distressed debt or loan-to-own investor) (an “Assignee”), and/or may act as an agent for any Assignee in accepting any Drawdown Notice. The Borrower hereby irrevocably consents to any assignment, sale, pledge, grant of a security interest or any other disposal to an Assignee. The Borrower agrees that if it receives notice from the Lender that it is to make payments under this Loan Agreement and/or any Drawdown Notice to such Assignee rather than to the Lender, or that any of its other obligations under the relevant Drawdown Notice are to be owed to the named Assignee, the Borrower shall comply with any such notice. Subject to the foregoing, this Loan Agreement and each Drawdown Notice inures to the benefit of, and is binding upon, the successors and assigns of the Lender.

 

15.5The Lender shall, and shall procure that the Observer will, keep all Confidential Information confidential and not to disclose it to anyone, save to the extent permitted below, and to ensure that all Confidential Information is protected with security measures and a degree of care that would apply to its own confidential information.

 

15.6The Lender may disclose:

 

15.6.1to any of its Affiliates and Related Funds and any of its or their officers, directors, employees, professional advisers, auditors, partners and representatives such Confidential Information as the Lender shall consider appropriate if any person to whom the Confidential Information is to be given pursuant to this Clause 15.6.1 is informed in writing of its confidential nature and that some or all of such Confidential Information may be price-sensitive information except that there shall be no such requirement to so inform if the recipient is subject to professional obligations to maintain the confidentiality of the information or is otherwise bound by requirements of confidentiality in relation to the Confidential Information;

 

15.6.2to any person:

 

15.6.2.1to (or through) whom it assigns or transfers (or may potentially assign or transfer) all or any of its rights and/or obligations under one or more Loan Documents and to any of that person’s Affiliates, Related Funds, representatives and professional advisers;

 

15.6.2.2to whom information is required or requested to be disclosed by any court of competent jurisdiction or any governmental, banking, taxation or other regulatory authority or similar body, the rules of any relevant stock exchange or pursuant to any applicable law or regulation;

 

15.6.2.3to whom information is required to be disclosed in connection with, and for the purposes of, any litigation, arbitration, administrative or other investigations, proceedings or disputes; or

 

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15.6.2.4with the consent of the Borrower,

 

in each case, such Confidential Information as such party shall consider appropriate if:

 

15.6.2.5in relation to Clause 15.6.2.1, the person to whom the Confidential Information is to be given has entered into a Confidentiality Undertaking except that there shall be no requirement for a Confidentiality Undertaking if the recipient is a professional adviser and is subject to professional obligations to maintain the confidentiality of the Confidential Information;

 

15.6.2.6in relation to Clauses 15.6.2.2 and 15.6.2.3 above, the person to whom the Confidential Information is to be given is informed of its confidential nature and that some or all of such Confidential Information may be price-sensitive information except that there shall be no requirement to so inform if, in the opinion of the Lender it is not practicable so to do in the circumstances.

 

15.7The Lender acknowledges that some or all of the information relating the Borrower and any Group Company is or may be price-sensitive information and that the use of such information may be regulated or prohibited by applicable legislation including securities law relating to insider dealing and market abuse and the Lender undertakes not to, and shall procure that the Observer will not, use any such information for any unlawful purpose.

 

15.8The Lender agrees (to the extent permitted by law and regulation) to inform the Borrower:

 

15.8.1of the circumstances of any disclosure of Confidential Information made pursuant to Clause 15.6.2.2 except where such disclosure is made to any of the persons referred to in that paragraph during the ordinary course of its supervisory or regulatory function; and

 

15.8.2upon becoming aware that Confidential Information has been disclosed in breach of the confidentiality provisions of this Agreement.

 

15.9The confidentiality obligations in this Loan Agreement are continuing and, in particular, shall survive and remain binding on the Lender for a period of twelve months from the earlier of:

 

15.9.1the date on which all amounts payable by the Borrower under or in connection with the Loan Documents have been paid in full; and

 

15.9.2the date on which the Lender otherwise ceases to be a Lender.

 

15.10If, at any time, any provision herein is or becomes illegal, invalid or unenforceable in any respect under any law of any jurisdiction, neither the legality, validity or enforceability of the remaining provisions nor the legality, validity or enforceability of such provision under the law of any other jurisdiction will in any way be affected or impaired.

 

15.11A person who is not a party to this Loan Agreement has no right under the Contract (Rights of Third Parties) ▇▇▇ ▇▇▇▇ to enforce or enjoy the benefits of this Loan Agreement.

 

15.12This Loan Agreement, together with the Security Documents, constitute the entire agreement between the parties with respect to the subject matter hereof. This Loan Agreement may not be modified except in writing executed by the Lender and the Borrower. No supplier or agent of the Lender is authorised to bind the Lender or to waive or modify any term of this Loan Agreement.

 

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15.13This Loan Agreement may be executed in counterparts (including facsimile and .pdf copies), each of which shall be an original, but all such counterparts shall together constitute one and the same instrument.

 

15.14This Loan Agreement and any non-contractual obligations arising out of or in connection with it are governed by English law. The courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection with this Loan Agreement (including a dispute relating to the existence, validity or termination of this Loan Agreement or any non-contractual obligation arising out of or in connection with this Loan Agreement (a “Dispute”). The parties to this Loan Agreement agree that the courts of England are the most appropriate and convenient courts to settle Disputes and accordingly no party to this Loan Agreement will argue to the contrary. This Clause 15.14 is for the benefit of the Lender only. As a result, the Lender shall not be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law, the Lender may take concurrent proceedings in any number of jurisdictions.

 

15.15Without prejudice to any other mode of service allowed under any relevant law, the Borrower:

 

15.15.1represents and warrants to the Lenders that it has appointed Law Debenture Corporate Services Limited as its agent for service of process in relation to any proceedings before the English courts in connection with the Loan Documents and agrees to provide the Lenders with evidence of such appointment and to maintain such appointment at all times during the Security Period (and promptly provide evidence, on request of the Lender, that such appointment is continuing); and

 

15.15.2agrees that failure by an agent for service of process to notify the Borrower of the process will not invalidate the proceedings concerned.

 

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SCHEDULE A

FORM OF DRAWDOWN NOTICE

DRAWDOWN NOTICE

Drawdown

No. [   ]

 

  dated 2019  

 

between

 

KREOS CAPITAL VI (UK) LIMITED MDxHEALTH SA
the (“Lender”) the (“Borrower”)

 

This Drawdown Notice forms a Schedule to a Loan Agreement between the Lender and the Borrower dated [                           ] September 2019 (the “Loan Agreement”)

 

The Lender has granted the Borrower a loan facility pursuant to the terms and conditions set out in the Loan Agreement and attached Schedules.

 

Words and expressions in this Drawdown Notice shall have the same meanings as in the Loan Agreement.

 

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PART 1

Loan Details

 

Total Loan Facility

 [                         ]
   
Amount of Loan Facility to be drawn down pursuant to this [                         ]
Drawdown Notice  
   
Loan Term The Interest Only Period followed by, subject to Clause 5.1.1, thirty six (36) monthly payments from the First Monthly Repayment Date
   
Bank Account Details for remittance of funds [                         ]
   
Drawdown Date (which shall be a date not later than the Expiry Date) [                  ] 2019
   
Repayment Schedule – Please see Part 2  

 

We confirm that:

 

(a)the representations and warranties made by us in the Loan Agreement are true and accurate on the date of this Drawdown Notice as if made on such date; and

 

(b)no Event of Default has occurred and is continuing or would result from the delivery of this Drawdown Notice.

 

This Drawdown Notice is irrevocable.

 

for and on behalf of

 

MDxHEALTH SA    
     
Authorised Signatory  
     
Name    
     
Dated [   ] 2019    

 

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PART 2

 

Repayment Schedule

 

[To be provided by Lender prior to submission of relevant Drawdown Notice]

 

37

 

 

SCHEDULE B

INITIAL SECURITY DOCUMENTS

 

Belgium

 

Pledge Agreement

 

The Netherlands

 

Dutch Omnibus Security Agreement

 

USA

 

US IP Security Agreement

 

US Subsidiary Guaranty Agreement

 

US Subsidiary Security Agreement

 

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Duly executed by the parties on the date first set out on the first page of this Loan Agreement.

 

BORROWER

 

Signed   /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇  

 

For and on behalf of

MDXHEALTH SA  
Authorised signatory  
   
Name    ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇  
Title CEO  

 

LENDER

 

Signed   /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇  

 

For and on behalf of

KREOS CAPITAL VI (UK) LIMITED  
Authorised signatory  
   
Name    ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇  
Title Director

 

 

 

 

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Document Metadata

Filed: October 13th, 2021