MDxHealth SA(MDXH) - 2024 Q1 - Quarterly Report

Preamble and Parties This section introduces the Credit Agreement, dated May 1, 2024, establishing a $100 million senior term loan facility for MDXHEALTH, INC. from ORC SPV LLC and other Lenders Credit Agreement Overview This Credit Agreement, dated May 1, 2024, establishes a senior term loan facility of $100 million for MDXHEALTH, INC. (Borrower) from ORC SPV LLC (Initial Lender and Administrative Agent) and other Lenders, structured with an initial funding and two delayed draws, subject to specific terms and conditions - The Credit Agreement is dated May 1, 2024, and involves MDXHEALTH, INC. as the Borrower, MDXHEALTH SA as Parent, and ORC SPV LLC as the Initial Lender and Administrative Agent[15] Senior Term Loan Facility Details | Feature | Amount | | :------ | :----- | | Aggregate Principal Amount | $100,000,000 | | Initial Funding (Closing Date) | $55,000,000 (with $52,541,120.33 funded and $2,458,879.67 as original issue discount) | | First Delayed Draw | $25,000,000 | | Second Delayed Draw | $20,000,000 | DEFINITIONS AND ACCOUNTING TERMS This article provides comprehensive definitions for terms used throughout the Credit Agreement and specifies accounting standards for financial determinations Defined Terms. This section provides comprehensive definitions for numerous terms used throughout the Credit Agreement, ensuring clarity and consistent interpretation of legal, financial, and operational concepts - The section defines various terms to be used consistently throughout the Agreement, applicable to both singular and plural forms[19] Key Defined Terms (Examples) | Term | Definition/Value | | :--- | :--------------- | | Administrative Agent | ORC SPV LLC | | Applicable Margin | 8.50% | | Commitment Amount | $100,000,000 | | Closing Date | May 1, 2024 | | Maturity Date | May 1, 2029 | | SOFR Rate | Forward-looking one-month term rate based on secured overnight financing rate | Use of Defined Terms This section clarifies that terms defined in the Credit Agreement will retain their specified meanings when used in other Loan Documents and attached schedules, unless the context explicitly requires otherwise - Defined terms from this Agreement apply to all other Loan Documents and schedules, unless context dictates otherwise[213] Cross-References This section specifies that references to Articles, Sections, or clauses within a Loan Document refer to those within that specific document, unless otherwise indicated - References to Articles, Sections, or clauses within a Loan Document are specific to that document unless otherwise specified[214] Accounting and Financial Determinations This section mandates that all accounting terms and financial determinations within the Loan Documents must adhere to International Financial Reporting Standards (IFRS) on a consolidated basis for Parent and its Subsidiaries - All accounting terms and financial determinations (including Section 8.4 calculations) must be made in accordance with IFRS, consistently applied on a consolidated basis for Parent and its Subsidiaries[215] - If IFRS changes, either Borrower or Lenders can request an amendment to eliminate the effect of such change on the operation of provisions, interpreting them based on IFRS in effect before the change[215] COMMITMENT AND BORROWING PROCEDURES This article details the Lenders' commitment to provide the term loan facility, outlines borrowing procedures, and specifies conditions for commitment termination and reduction Commitment This section details the Lenders' commitment to provide the term loan facility, specifying the initial loan amount and two subsequent delayed draw loans, with obligations being several and non-reborrowable Loan Commitment Amounts | Loan Type | Amount | | :-------- | :----- | | Initial Loan | $55,000,000 (with $52,541,120.33 funded and $2,458,879.67 as original issue discount) | | First Delayed Draw Loan | $25,000,000 | | Second Delayed Draw Loan | $20,000,000 | - Each Lender's obligation to make loans is several, not joint, meaning no Lender is responsible for another's default[220] - Amounts paid or prepaid with respect to the Loans may not be reborrowed[217] Borrowing Procedure This section outlines the irrevocable request procedures for the Initial Loan and the two Delayed Draw Loans, specifying the required notice periods for delivering a Loan Request to the Administrative Agent - Borrower must deliver an irrevocable Loan Request to the Administrative Agent for each loan[219] Loan Request Notice Periods | Loan Type | Notice Period Before Proposed Closing Date | | :-------- | :--------------------------------------- | | Initial Loan | At least one Business Day | | First Delayed Draw Loan | At least 12 Business Days | | Second Delayed Draw Loan | At least 12 Business Days | Funding This section describes the process by which Lenders make loan proceeds available to the Administrative Agent, who then disburses them to the Borrower upon satisfaction or waiver of conditions, reiterating that Lenders' obligations are several, not joint - Administrative Agent notifies Lenders of their portion of the loan after receiving a Loan Request[220] - Lenders make requested proceeds available to the Administrative Agent on the Closing Date or applicable Delayed Draw Closing Date[220] - Administrative Agent disburses funds to the Borrower via wire transfer upon satisfaction or waiver of Article V conditions[220] Termination and Reduction of the Commitment Amounts This section specifies the automatic and permanent reduction of the Initial Commitment Amount to zero on the Closing Date, details the automatic reduction of Delayed Draw Commitment Amounts on their respective termination dates, and grants the Borrower the right to voluntarily terminate these amounts with notice - The Initial Commitment Amount is automatically and permanently reduced to zero on the Closing Date immediately after the Initial Loan is made[221] - The First and Second Delayed Draw Commitment Amounts are automatically and permanently reduced to zero on their respective Commitment Termination Dates[221] - The Borrower has the right to terminate the Delayed Draw Commitment Amounts at any time with notice to the Administrative Agent, typically in connection with full payment of Obligations[221] REPAYMENTS, PREPAYMENTS, INTEREST AND FEES This article details the terms for loan repayments, prepayments, interest calculation, and various fees associated with the credit facility Repayments and Prepayments; Application This section stipulates that all loan repayments and prepayments, along with accrued fees and interest, must be made exclusively in U.S. dollars and in accordance with the terms outlined in Article III - All Loans, fees, and interest must be repaid and prepaid solely in U.S. dollars[224] Amortization; Repayments and Prepayments This section details mandatory amortization payments triggered by revenue thresholds, outlines the Borrower's right to make optional prepayments, and specifies mandatory prepayments from certain proceeds, along with the requirement for full repayment on the Maturity Date or upon acceleration - If the trailing 12-month Revenue Base does not meet minimum thresholds on a Test Date, the Borrower must make equal monthly amortization payments of the outstanding principal, plus applicable Repayment Premium and Exit Fee[225] Minimum Revenue Base for Amortization Trigger | Test Dates (Fiscal Quarter Ending) | Minimum Revenue Base for the 12-month period ending on such Test Date | | :--------------------------------- | :------------------------------------------------------------------ | | June 30, 2025 | $[] | | September 30, 2025 | $[] | | December 31, 2025 | $[] | | March 31, 2026 | $[] | | June 30, 2026 | $[] | | September 30, 2026 | $[] | | December 31, 2026 and each Fiscal Quarter ending thereafter | $[] | - The Borrower has the right to prepay any unpaid principal amount of the Loans, in whole or in part, with at least three Business Days' notice, along with the applicable Repayment Premium and Exit Fee[227] - Mandatory prepayments are required within three Business Days of receiving Net Casualty Proceeds or Net Asset Sales Proceeds, if requested by the Lenders, equal to 100% of such proceeds (or a lesser amount specified by Lenders), plus applicable Repayment Premium and Exit Fee[228] Application This section specifies that amounts repaid or prepaid on the outstanding principal of the Loans will be applied in the inverse order of maturity and pro rata across the Initial Loan, First Delayed Draw Loan, and Second Delayed Draw Loan - Repaid or prepaid principal amounts are applied in inverse order of maturity and pro rata to the Initial Loan, First Delayed Draw Loan, and Second Delayed Draw Loan[230] Interest Rate This section defines the cash interest rate for the Loans, which accrues at a per annum rate equal to the higher of the SOFR Rate or 2.50%, plus the Applicable Margin, subject to recalculation and adjustment for each Interest Period - Cash interest accrues at a per annum rate equal to the higher of (x) the SOFR Rate for the Interest Period and (y) 2.50%, plus the Applicable Margin[231] - The interest rate is recalculated and adjusted for each Interest Period[231] Default Rate This section stipulates that the Applicable Margin will increase by 4.00% per annum from the date any Event of Default occurs and continues - The Applicable Margin increases by 4.00% per annum at all times on and after the date any Event of Default occurs[232] Payment Dates This section specifies the dates on which accrued interest on the Loans is payable in cash, including on the Maturity Date, upon any principal payment or prepayment, on the last day of each month, and immediately upon acceleration due to default - Interest accrued on Loans is payable in cash on the Maturity Date, on the date of any principal payment or prepayment, on the last day of each month (or next Business Day), and immediately upon acceleration[233][234] - Interest accrued after the due date (Maturity Date, acceleration, etc.) is payable upon demand[235] Repayment Premium This section outlines the Repayment Premium payable upon any repayment or prepayment of principal, with the premium percentage decreasing over time based on the anniversary of the Closing Date or respective Delayed Draw Closing Dates, and including a Make-Whole Amount for early prepayments Repayment Premium Structure | Prepayment/Repayment Timing | Premium Percentage | | :--------------------------- | :----------------- | | On or prior to 24-month anniversary | 3.0% + Make-Whole Amount | | After 24-month, on or prior to 36-month anniversary | 2.0% | | After 36-month, on or prior to 48-month anniversary | 1.0% | | After 48-month anniversary | 0% | - The Repayment Premium is applicable to any repayment or prepayment of principal, except for repayments made on the Maturity Date[235] Exit Fee This section establishes an Exit Fee of 3.00% of the principal amount of Loans, payable upon any prepayment or repayment of principal, including on the Maturity Date or upon acceleration, in addition to other Obligations - An Exit Fee of 3.00% of the principal amount of Loans is payable upon any prepayment or repayment of principal[236] - The Exit Fee is due whether the prepayment/repayment occurs on the Maturity Date, due to acceleration, or otherwise[236] Upfront Fee This section details the upfront fees payable by the Borrower for the Initial Loan and each Delayed Draw Loan, which are 2.00% of the respective loan amounts, paid in U.S. Dollars, fully earned, nonrefundable, and not creditable against other costs Upfront Fee Structure | Loan Type | Fee Amount | Payment Date | | :-------- | :--------- | :----------- | | Initial Loan | 2.00% of Initial Loan | Closing Date | | First Delayed Draw Loan | 2.00% of First Delayed Draw Loan | First Delayed Draw Closing Date (if applicable) | | Second Delayed Draw Loan | 2.00% of Second Delayed Draw Loan | Second Delayed Draw Closing Date (if applicable) | - All upfront fees are paid in U.S. Dollars, fully earned upon their respective closing dates, nonrefundable, and in addition to other payable fees[237] Undrawn Fee This section specifies an Undrawn Fee of 0.50% per annum on the undrawn portions of the First and Second Delayed Draw Commitment Amounts, calculated daily, payable monthly, fully earned, and nonrefundable - The Borrower must pay an Undrawn Fee of 0.50% per annum on the sum of the undrawn First Delayed Draw Commitment Amount and the undrawn Second Delayed Draw Commitment Amount[239] - The Undrawn Fee is calculated daily, payable on the last day of each month (or next Business Day), fully earned, and nonrefundable[239] Administration Fee This section requires the Borrower to pay a quarterly Administration Fee of $10,000 in aggregate to the Administrative Agent for the Lenders, payable in advance, prorated for the initial fiscal quarter, fully earned, and nonrefundable - The Borrower pays a quarterly loan administration fee of $10,000 in aggregate to the Administrative Agent for the Lenders[240] - The Administration Fee is payable in advance, prorated for the Closing Date fiscal quarter, fully earned, and nonrefundable[240] SOFR RATE AND OTHER PROVISIONS This article addresses increased costs, capital costs, taxes, payment mechanics, setoff rights, and procedures for when the SOFR Rate is not determinable Increased Costs, Etc This section obligates the Borrower to reimburse Lenders for increased costs or reduced sums arising from Changes in Law affecting commitments or loans, excluding increased capital costs and taxes, with Lenders required to provide written notification - Borrower agrees to reimburse Lenders for increased costs or reduced sums due to Changes in Law affecting commitments or loans[242] - This section excludes increased capital costs (Section 4.2) and Taxes (Section 4.3)[242] - Lenders must notify the Borrower in writing, and the Borrower must pay within five days of receipt of notice, with a 180-day look-back period for claims[242] Increased Capital Costs This section requires the Borrower to compensate Lenders for any reduction in their or their controlling Person's rate of return on capital due to a Change in Law affecting capital requirements related to the commitments or loans, with Lenders determining the amount in their sole discretion - If a Change in Law reduces a Lender's or its controlling Person's rate of return on capital related to commitments or loans, the Borrower must pay additional amounts to compensate[244] - The Lender determines the amount in good faith and its sole discretion, and a statement from the Lender is conclusive[244] - Compensation is not required for periods more than 180 days prior to notification, unless the Change in Law is retroactive[244] Taxes This section details the Borrower's obligations regarding taxes, including making payments free of withholding for Non-Excluded Taxes, indemnifying Lenders for such taxes, complying with VAT, addressing U.S. federal income tax treatment of original issue discount, Lender tax documentation requirements, and mitigation steps for Belgian tax deductibility - Payments by Borrower, Parent, or Subsidiaries under any Loan Document must be made without setoff, counterclaim, or deduction for Taxes, except as required by law[246] - If Non-Excluded Taxes are withheld, the payment amount must be increased so that the net amount received by the Lender is not less than the amount provided for in the Loan Document[246] - The Borrower indemnifies the Administrative Agent and Lenders for Non-Excluded Taxes and Other Taxes, including those imposed on indemnification payments[250] - The Loans are deemed to be made with original issue discount for U.S. federal income tax purposes[252] - Lenders must deliver appropriate IRS forms (e.g., W-9, W-8BEN, W-8ECI, W-8IMY) to claim exemptions or reductions from U.S. federal withholding tax, including a U.S. Tax Compliance Certificate for portfolio interest exemption[255][257][259] - Lenders agree to take reasonable steps, in consultation with Parent and at Borrower's expense, to mitigate circumstances that would prevent payments from being deductible for Belgian tax purposes due to a Non-Cooperative Jurisdiction Secured Party[265] Payments, Computations; Proceeds of Collateral, Etc This section outlines the mechanics for payments, including requirements for same-day funds, computation of interest and fees, and the application of funds received from collateral, clarifying the several nature of Lenders' obligations and addressing pro rata sharing of payments among Lenders - All payments by the Borrower must be made without setoff, deduction, or counterclaim by 10:00 a.m. on the due date in same-day funds[266] - Interest and fees are computed on the basis of the actual number of days over a 360-day year[266] - Amounts received from exercising remedies under Loan Documents (including collateral proceeds) are applied according to Section 9.4[267] - Lenders' obligations to make Loans and payments are several, not joint[268] - If a Lender receives a disproportionate payment, it must purchase participations in other Lenders' portions of the Loans to ensure pro rata sharing[271] Setoff This section grants each Lender the right to appropriate and apply any balances, credits, deposits, or accounts of the Borrower held with that Lender to the payment of Obligations, upon the occurrence and continuance of specific Defaults or any Event of Default - Each Lender has the right to set off against the Borrower's balances, credits, deposits, or accounts held with that Lender to pay Obligations[273] - This right is exercisable upon the occurrence and continuance of specific Defaults (Section 9.1(h)(i)-(iv)) or any Event of Default[273] - The Borrower grants each Lender a continuing security interest in such balances, credits, deposits, and accounts[273] SOFR Rate Not Determinable This section outlines procedures if the SOFR Rate cannot be determined for an Interest Period, initially using the Prime Rate and then establishing an alternate interest rate if the issue is not temporary - If the SOFR Rate cannot be ascertained, the Loans will bear interest calculated using the Prime Rate instead of the SOFR Rate[275] - If the SOFR Rate issue is unlikely to be temporary, the Administrative Agent (at Lenders' direction) and Borrower will establish an alternate rate and amend the Agreement[276] CONDITIONS TO MAKING THE LOANS This article specifies the conditions that must be satisfied or waived before the Lenders are obligated to make the Initial Loan and subsequent Delayed Draw Loans Credit Extensions This section specifies the conditions precedent for the Lenders' obligation to make the Initial Loan and the subsequent First and Second Delayed Draw Loans, with the Initial Loan requiring satisfaction of most Article V conditions and Delayed Draws having a more limited set - The Initial Loan is subject to the execution of the Agreement, delivery of a Loan Request, and satisfaction of all conditions in Article V (except Sections 5.18 and 5.19)[278] - The First and Second Delayed Draw Loans are subject to the prior making of the Initial Loan, delivery of a Loan Request, and satisfaction of Sections 5.3, 5.8, 5.18(a)/(b), 5.19(a)/(b), and 5.20[278] Secretary's Certificate, Etc This section requires the Borrower and each Guarantor to provide a good standing certificate and a Secretary's Certificate (or equivalent) on the Closing Date, attesting to corporate resolutions, incumbency, and the validity of organizational documents - Borrower and each Guarantor must provide a good standing certificate and a Secretary's Certificate (or equivalent) on the Closing Date[280] - The certificate must confirm resolutions authorizing Investment Documents, incumbency of officers, and validity of organizational documents[280] - Resolutions for the issuance of Warrants and Parent's ordinary shares are to be passed after the Closing Date[280] Closing Date Certificates This section requires the Borrower to deliver a Closing Date Certificate, executed by an Authorized Officer, on the Closing Date or applicable Delayed Draw Closing Date, affirming the material truth and correctness of representations and warranties, the absence of any continuing Default, and the satisfaction of all applicable conditions in Article V - A Closing Date Certificate, executed by an Authorized Officer of the Borrower, is required on the Closing Date or applicable Delayed Draw Closing Date[281] - The certificate must affirm that representations and warranties are true and correct in all material respects, no Default has occurred or would result from the loans, and all Article V conditions are satisfied[281] Payment of Outstanding Indebtedness, Etc This section mandates that all indebtedness listed in Schedule 8.2(a), including interest and prepayment premiums, must be fully paid from the Initial Loan proceeds, with commitments terminated and all related Liens released - All indebtedness identified in Schedule 8.2(a) must be paid in full from the proceeds of the Initial Loan[283] - Commitments for such indebtedness must be terminated, and all Liens securing them released[283] - The Administrative Agent must receive UCC Form UCC-3 termination statements or other suitable instruments[283] Delivery of Note This section requires each Lender to receive a duly executed Promissory Note from an Authorized Officer of the Borrower as a condition to making the loans - Each Lender must receive a Promissory Note, duly executed by an Authorized Officer of the Borrower[284] Financial Information, Etc This section specifies the financial information that must be provided to the Administrative Agent and Lenders, including audited consolidated financial statements for recent fiscal years, unaudited consolidated statements for recent fiscal quarters, and a statement of unrestricted cash-on-hand and Cash Equivalent Investments - Audited consolidated financial statements of Parent and Subsidiaries are required for Fiscal Years ended December 31, 2021, 2022, and 2023[285] - Unaudited consolidated statements of financial position, profit or loss, comprehensive income, changes in equity, and cash flows are required for Fiscal Quarters ended September 30, 2023, and December 31, 2023[285] - A statement of unrestricted cash-on-hand and Cash Equivalent Investments of Parent and Subsidiaries as of March 31, 2023, is also required[285] Compliance Certificate This section requires the delivery of an initial Compliance Certificate on a pro forma basis, assuming the Initial Loan was made as of December 31, 2023, executed by an Authorized Officer with financial responsibilities and satisfactory to the Administrative Agent and Lenders - An initial Compliance Certificate is required on a pro forma basis, assuming the Initial Loan was made as of December 31, 2023[286] - The certificate must be duly executed by an Authorized Officer of Parent with chief financial or accounting responsibilities[286] Solvency, Etc This section requires the delivery of a solvency certificate, executed by the chief financial or accounting Authorized Officer of Parent, on the Closing Date or applicable Delayed Draw Closing Date, in a form and substance satisfactory to the Administrative Agent and Lenders - A solvency certificate, executed by the chief financial or accounting Authorized Officer of Parent, is required on the Closing Date or applicable Delayed Draw Closing Date[287] - The certificate must be in a form and substance satisfactory to the Administrative Agent and Lenders[287] Guarantee This section requires the Administrative Agent and Lenders to receive executed counterparts of the Guarantee, dated as of the date of the Agreement, from each Guarantor - Executed counterparts of the Guarantee, dated as of the Agreement date, must be received from each Guarantor[288] Security Agreements This section mandates the delivery of executed Security Agreements from the Borrower and each Guarantor, along with documentation to perfect security interests, including certificates for Capital Securities, financing statements, UCC termination statements, and, subject to certain conditions, landlord access agreements and evidence of Controlled Accounts - Executed counterparts of the Security Agreement are required from the Borrower and each Guarantor[290] - Certificates evidencing Capital Securities owned by Borrower/Guarantors in Subsidiaries, accompanied by undated instruments of transfer, or confirmation of perfected security interest for uncertificated securities[290] - Financing statements (UCC) and other instruments necessary to perfect security interests of Secured Parties[290] - UCC Form UCC-3 termination statements to release all Liens on assets or securing indebtedness identified in Schedule 8.2(a)[290] - Subject to Section 7.17, landlord access agreements and bailee letters from landlords/persons possessing Collateral, and evidence that all deposit/disbursement/investment accounts (other than Excluded Accounts) are Controlled Accounts[290] Intellectual Property Security Agreements This section requires the Borrower or any Guarantor, as applicable, to deliver executed Patent Security Agreements and Trademark Security Agreements to the Administrative Agent for the benefit of the Secured Parties on the Closing Date - Executed Patent Security Agreements and Trademark Security Agreements are required from the Borrower or any Guarantor on the Closing Date[291] Belgian Security Agreements This section mandates the delivery of executed counterparts of a Belgian law-governed omnibus pledge agreement from the Parent to the Administrative Agent and Lenders on the Closing Date - Executed counterparts of a Belgian law-governed omnibus pledge agreement are required from the Parent on the Closing Date[292] Opinions of Counsel This section requires the Administrative Agent and Lenders to receive legal opinions, dated the Closing Date, from K&L Gates LLP (counsel to Borrower/Guarantors), Baker McKenzie BV/SRL (Belgian counsel to Borrower/Guarantors), and NautaDutilh BV/SRL (Belgian counsel to Administrative Agent/Lenders) - Legal opinions are required from K&L Gates LLP, Baker McKenzie BV/SRL, and NautaDutilh BV/SRL, dated the Closing Date[293] Insurance This section, subject to Section 7.17, requires the Administrative Agent and Lenders to receive certified copies of insurance policies (or binders) from satisfactory insurance companies, evidencing coverage required by Loan Documents, with the Administrative Agent named as loss payee or additional insured - Certified copies of insurance policies (or binders) are required, evidencing coverage per Loan Documents[295] - The Administrative Agent must be named as loss payee or additional insured, as applicable[295] Closing Fees, Expenses, Etc. This section stipulates that all fees, costs, and expenses due and payable under Section 10.3, the Initial Upfront Fee, and the initial Administration Fee (as per Section 3.11) must be received by the Administrative Agent and each Lender on the Closing Date - All fees, costs, and expenses due under Section 10.3, the Initial Upfront Fee, and the initial Administration Fee (Section 3.11) must be received on the Closing Date[296] Anti-Terrorism Laws This section requires the Administrative Agent and Lenders to receive all documentation and information mandated by bank regulatory authorities under applicable 'know your customer' and anti-money laundering rules and regulations, including the U.S.A. Patriot Act - All documentation and information required by 'know your customer' and anti-money laundering rules (e.g., U.S.A. Patriot Act) must be provided[297] Satisfactory Legal Form This section states that all documents executed or submitted by Parent or any Subsidiary must be satisfactory in form and substance to the Administrative Agent and Lenders, and all requested information, approvals, resolutions, opinions, and instruments must be received - All documents executed or submitted by Parent or any Subsidiary must be satisfactory in form and substance to the Administrative Agent and Lenders[298] - All requested information, approvals, resolutions, opinions, documents, or instruments must be received[298] Revenue Base This section sets specific Revenue Base thresholds as conditions for the First and Second Delayed Draw Closing Dates, requiring the Administrative Agent and Lenders to be satisfied that the trailing 12-month Revenue Base meets these minimums prior to each respective delayed draw Minimum Revenue Base for Delayed Draws | Condition | Minimum Trailing 12-Month Revenue Base | | :-------- | :------------------------------------- | | First Delayed Draw Closing Date | At least $[] (ending month prior to closing) | | Second Delayed Draw Closing Date | At least $[] (ending month prior to closing) | Disclosure Schedules This section requires the Borrower to deliver updated disclosure schedules immediately prior to the First and Second Delayed Draw Closing Dates, pertaining to Intellectual Property, Material Agreements, Transactions with Affiliates, Deposit and Disbursement Accounts, and Security Agreement schedules - Borrower must deliver updated Schedules 6.15(a), 6.16, 6.19, and 6.22, along with Schedules III through VI of the Security Agreement and Schedule 1 to the Belgian Security Agreement[301][303] - These updates are required immediately prior to the First and Second Delayed Draw Closing Dates, and must be complete and accurate as of those dates[301][303] Material Adverse Change This section establishes a condition that no event, change, circumstance, effect, or other matter shall have occurred between December 31, 2023, and the Closing Date or applicable Delayed Draw Closing Date that could reasonably be expected to have a Material Adverse Effect - No event or change that could reasonably be expected to have a Material Adverse Effect must have occurred between December 31, 2023, and the Closing Date or applicable Delayed Draw Closing Date[304] Excluded Subsidiaries This section identifies the specific entities that are designated as Excluded Subsidiaries as of the Closing Date: MDxHealth B.V., MDxHealth Research B.V., and MDxHealth Servicelab B.V - As of the Closing Date, the only Excluded Subsidiaries are MDxHealth B.V., MDxHealth Research B.V., and MDxHealth Servicelab B.V[304] [***] This section is redacted in the provided document REPRESENTATIONS AND WARRANTIES This article outlines the representations and warranties made by Parent and its Subsidiaries regarding their organization, authorization, financial condition, legal compliance, and other material aspects of their business Organization, Etc. Parent and each Subsidiary represent and warrant that they are validly organized, existing, and in good standing under applicable laws, duly qualified to do business where required, and possess full power and authority to execute and perform Investment Documents and conduct their business - Parent and each Subsidiary are validly organized, existing, and in good standing under their respective jurisdictions[306] - They possess full power and authority, and all requisite governmental licenses and approvals, to enter into and perform Investment Documents and conduct their business[306] Due Authorization, Non-Contravention, Etc. Parent and each Subsidiary represent and warrant that the execution, delivery, and performance of Investment Documents are within their corporate powers, duly authorized, and do not contravene organizational documents, court orders, or laws, nor do they create unpermitted Liens or result in defaults under other agreements - Execution, delivery, and performance of Investment Documents are within corporate powers and duly authorized[308] - These actions do not contravene organizational documents, court decrees, or laws, nor do they create unpermitted Liens or defaults under other agreements[308] - Resolutions for the issuance of Warrants and Parent's ordinary shares are to be passed after the Closing Date[308] Government Approval, Regulation, Etc. Parent and each Subsidiary represent and warrant that no further governmental authorizations, approvals, or filings are required for the due execution, delivery, or performance of any Investment Document to which they are a party, beyond those already obtained or to be obtained on the Closing Date - No additional governmental authorization, approval, or filing is required for the execution, delivery, or performance of Investment Documents, beyond those already obtained or to be obtained on the Closing Date[309] Validity, Etc. Parent and each Subsidiary represent and warrant that each Investment Document to which they are a party constitutes their legal, valid, and binding obligations, enforceable in accordance with its terms, subject to standard bankruptcy, insolvency, and equity limitations - Each Investment Document is a legal, valid, and binding obligation of Parent or any Subsidiary party thereto, enforceable in accordance with its terms[310] - Enforceability is subject to applicable bankruptcy, insolvency, reorganization, or similar laws and principles of equity[310] Financial Information Parent and the Borrower represent and warrant that the consolidated financial statements provided to the Administrative Agent and Lenders were prepared in accordance with IFRS, consistently applied, and fairly present the financial condition and results of operations of Parent and its Subsidiaries - Consolidated financial statements of Parent and Subsidiaries were prepared in accordance with IFRS, consistently applied[311] - The financial statements fairly present the consolidated financial condition and results of operations as of the dates and for the periods presented[311] No Material Adverse Change Parent and the Borrower represent and warrant that since December 31, 2023, no event, change, circumstance, effect, or other matter has occurred that has had a Material Adverse Effect - No event, change, circumstance, effect, or other matter has had a Material Adverse Effect since December 31, 2023[312] Litigation, Labor Matters and Environmental Matters Parent and the Borrower represent and warrant that, except as disclosed, there is no pending or threatened litigation, labor controversies, or environmental liabilities that would reasonably be expected to result in significant liabilities or adversely affect the Agreement, and affirm compliance with Environmental Laws and Permits - No pending or threatened actions, suits, or proceedings against Parent or any Subsidiary that are reasonably likely to result in liabilities exceeding $[] or adversely affect the Agreement, except as described on Schedule 6.7(a)[313] - No labor controversies pending or threatened against Parent or any Subsidiary that are reasonably likely to result in liabilities exceeding $[]** or adversely affect the Agreement[315] - Parent and Subsidiaries have complied with Environmental Laws and Permits, are not subject to Environmental Liability, and have no knowledge of any basis for such liability that would exceed $[]** in aggregate[316] Subsidiaries Parent represents and warrants that it has no Subsidiaries other than those identified in Schedule 6.8 or those permitted to be organized or acquired after the Closing Date in accordance with the Agreement - Parent has no Subsidiaries except those identified in Schedule 6.8 or permitted to be organized/acquired after the Closing Date per Sections 8.5 and 8.7[317] Ownership of Properties Parent and each Subsidiary represent and warrant that they own good and marketable fee title to owned real property, good and valid title to owned personal property, or valid and enforceable leasehold interests in leased property, all free and clear of unpermitted Liens or claims - Parent and each Subsidiary own good and marketable fee title to owned real property and good and valid title to owned personal property[318] - They hold valid and enforceable leasehold interests in leased real or personal property[318] - All properties and assets are free and clear of all Liens or claims, except for Liens permitted by Section 8.3[318] Taxes Parent and each Subsidiary represent and warrant that they have filed all required federal and other material tax returns and reports and paid all federal and other material Taxes due, except for those being diligently contested in good faith with adequate reserves - Parent and each Subsidiary have filed all required federal and material tax returns and reports[319] - They have paid all federal and material Taxes due and owing, except for those contested in good faith with adequate IFRS reserves[319] Benefit Plans, Etc. Parent and its Subsidiaries represent and warrant that they do not sponsor or have material liability with respect to Benefit Plans, are not party to collective bargaining agreements, and all existing employee benefit plans comply with terms and law, and are fully insured where applicable - None of Parent, Subsidiaries, or ERISA Affiliates sponsors, maintains, contributes to, or has actual/potential liability with respect to any Benefit Plan[320] - No party is subject to collective bargaining agreements[320] - All employee benefit plans comply materially with their terms and applicable law, and those providing medical, dental, vision, or long-term disability benefits are fully insured by a third-party insurance company[320] Accuracy of Information Parent and the Borrower represent and warrant that information furnished in writing to the Administrative Agent or Lenders in connection with Investment Documents, when taken as a whole, does not contain any untrue statement of material fact or omit any material fact necessary to prevent it from being misleading, and projected financial information was prepared in good faith based on reasonable assumptions - Information furnished in writing to the Administrative Agent or Lenders in connection with Investment Documents, taken as a whole, does not contain any untrue statement of material fact or omit any material fact[322] - Projected financial information was prepared in good faith based upon assumptions reasonably believed to be reasonable at the time made[322] Regulations U and X Parent and each Subsidiary represent and warrant that they are not engaged in the business of extending credit for margin stock, and no loan proceeds will be used to purchase or carry margin stock or for any purpose violating F.R.S. Board Regulation U or Regulation X - None of Parent or any Subsidiary is engaged in the business of extending credit for buying or carrying margin stock[323] - No loan proceeds will be used to purchase or carry margin stock or for any purpose violating F.R.S. Board Regulation U or Regulation X[323] Solvency Parent and the Borrower represent and warrant that, individually for the Borrower and on a consolidated basis for Parent and its Subsidiaries, they are Solvent both before and after giving effect to the Loans - Borrower (individually) and Parent and its Subsidiaries (consolidated) are Solvent both before and after giving effect to the Loans[324] Intellectual Property Parent and the Borrower represent and warrant regarding their Intellectual Property (IP), affirming that Owned and Licensed IP are necessary for business operations, free of unpermitted Liens, in full force, and protected, with no material infringement claims pending or threatened, and commercially reasonable efforts taken to maintain confidentiality - Schedule 6.15(a) lists all Patents, registered/unregistered Trademarks, registered Copyrights, and commercially significant unregistered IP owned by, purportedly owned by, or licensed to Parent or any Subsidiary[325] - The Owned Intellectual Property and Licensed Intellectual Property together constitute all IP necessary for the operation of Parent's and Subsidiaries' business as currently conducted and proposed[327] - Parent or a Subsidiary owns or has valid rights to all Owned and Licensed IP, free and clear of Liens other than those permitted by Section 8.3[328] - All Owned IP and, to Parent's/Borrower's knowledge, Licensed IP is in full force and effect, and no material unpaid maintenance or renewal fees are overdue[329][330] - No actual or threatened proceedings challenge the ownership, validity, or enforceability of Owned or Licensed IP, and no Third Party is committing infringement[331][333] - Parent and Subsidiaries have taken commercially reasonable actions to protect Confidential Business Information and commercially significant unregistered IP, with employees and others subject to confidentiality agreements[337] Material Agreements Parent and the Borrower represent and warrant that Schedule 6.16 provides a complete and accurate list of all Material Agreements, which are in full force and effect, legally binding, and have not suffered any material default or breach, with full copies provided to the Administrative Agent and Lenders - Schedule 6.16 provides a complete and accurate list of all Material Agreements of Parent or any Subsidiary as of the Closing Date or applicable Delayed Draw Closing Date[338] - Each Material Agreement is in full force and effect, legal, valid, and binding, and has not been materially defaulted or breached by any party[338] - Full, complete, and correct copies of all Material Agreements (including exhibits and schedules) have been provided to the Administrative Agent and Lenders[340] Permits Parent and the Subsidiaries represent and warrant that they possess all necessary Permits, including Key Permits and Environmental Permits, for the ownership, operation, and conduct of their business and the testing and distribution of Products, and all such Permits are valid with no defaults thereunder - Parent and Subsidiaries have all necessary Permits, including Key Permits and Environmental Permits, for their business operations and Product activities[340] - All such Permits are validly held, in full force and effect, and without defaults[340] Regulatory Matters Parent and the Borrower represent and warrant that their business and Products comply materially with all applicable U.S. and foreign laws and Regulatory Authorizations, affirming the absence of material regulatory actions, product recalls, or investigations, and that all submissions to Governmental Authorities were truthful and complete - The business of Parent and Subsidiaries is conducted in material compliance with all applicable U.S. federal, state, local, or foreign laws (including Privacy Laws, FD&C Act, CLIA, IVDR) and Regulatory Authorizations[341] - Products and laboratory testing services comply materially with applicable regulations, and no written notice of action to withdraw Product approval or accreditation has been received[342][343] - Parent and Subsidiaries own or hold all necessary Key Permits, which are valid and in full force, and have not received notice of revocation, withdrawal, or suspension[344] - All applications, submissions, and information provided to Governmental Authorities for Key Permits were truthful, complete, and accurate in all material respects[346] - No Product or facility has been subject to Governmental Authority shutdown or import/export prohibition, nor have 'warning letters' or similar correspondence been received[347] - No recalls, safety notices, or material product complaints have occurred, and no facts exist that would likely result in such actions or a Material Adverse Effect[348] - No investigation by any Governmental Authority is pending or threatened, and no noncompliance with Laws or quality concerns have been communicated[349] - No unlawful rebates or kickbacks, and all billings for services are materially true, correct, and compliant with applicable Laws[352] - No officer, director, manager, employee, stockholder, or agent has been convicted, charged, or investigated for health program-related offenses or fraud, nor excluded from participation in such programs[353] - Products were researched, developed, designed, and validated in material compliance with applicable Laws, and all studies/trials were conducted in material compliance with Laws and good clinical/laboratory practices[354] - No clinical investigators have been disqualified or sanctioned by the FDA or other Governmental Authority, and no notices threatening termination or suspension of clinical trials have been received[356] Transactions with Affiliates Parent and the Borrower represent and warrant that, during the three-year period prior to the Closing Date or applicable Delayed Draw Closing Date, no transactions with Affiliates have occurred, except for specific permitted types such as intercompany transactions, director/employee compensation, and equity incentive arrangements in the ordinary course of business - No transactions with Affiliates occurred in the three-year period prior to the Closing Date or applicable Delayed Draw Closing Date, except for permitted transactions[357] - Permitted transactions include those among Borrower and Guarantors, director fees/expenses, employment/equity incentive arrangements in the ordinary course, and equity holder agreements[357] Investment Company Act Parent and each Subsidiary represent and warrant that they are not an 'investment company' and are not 'controlled' by an 'investment company,' as defined in, or subject to regulation under, the Investment Company Act of 1940 - None of Parent or any Subsidiary is an 'investment company' or 'controlled' by an 'investment company' under the Investment Company Act of 1940[358] OFAC Parent, its Subsidiaries, and Related Parties represent and warrant that they are not subject to Sanctions, located in Designated Jurisdictions, or engaged in transactions with sanctioned persons/jurisdictions, and affirm that loan proceeds will not be used in violation of Sanctions - None of Parent, any Subsidiary, or any Related Party is currently subject to Sanctions, located in any Designated Jurisdiction, or has engaged in transactions with sanctioned persons/jurisdictions within the past five years[359] - Loan proceeds will not be used to fund activities in Designated Jurisdictions or for sanctioned persons, or in any manner that violates Sanctions[359] Deposit and Disbursement Accounts Parent and the Borrower represent and warrant that Schedule 6.22 provides a complete and accurate list of all bank accounts maintained by Parent or any Subsidiary, confirming that each account (other than Excluded Accounts) is a Controlled Account as required by Section 7.12 - Schedule 6.22 provides a complete and accurate list of all deposit, lockbox, disbursement, investment, or similar accounts maintained by Parent or any Subsidiary[361] - Each such account (other than Excluded Accounts) is a Controlled Account to the extent required by Section 7.12[361] Data Privacy and Information Security Parent and the Subsidiaries represent and warrant that they maintain appropriate data security policies and a comprehensive privacy program materially compliant with applicable law, affirming that privacy statements are not misleading, transactions will not violate privacy laws, and no material security incidents or unauthorized access to Personal Data or Confidential Business Information have occurred, also confirming contractual obligations with Data Processors and the sufficiency and security of IT Assets - Parent and Subsidiaries maintain appropriate data security policies, processes, controls, and a comprehensive privacy program materially compliant with applicable Law[362] - No privacy statements or disclosures are materially misleading, and contemplated transactions will not violate privacy statements or Laws[362] - No pending/past five-year actions regarding privacy/data security, and no material security incidents involving unauthorized access to Personal Data or Confidential Business Information[362] - Data Processors are contractually obligated to appropriate terms for Personal Data and IT Assets protection[363] - IT Assets are sufficient, operate as necessary, and do not contain malicious software; backup and disaster recovery policies are consistent with industry standards[364] - Reasonable and appropriate organizational, physical, administrative, and technical measures are implemented to protect Confidential Business Information, Personal Data, and IT Assets[366] HIPAA Parent and the Borrower represent and warrant regarding their compliance with HIPAA, clarifying which entities are Covered Entities, confirming the existence and compliance of Business Associate agreements, affirming material compliance with all applicable HIPAA requirements, stating that no security incidents or breaches of Protected Health Information requiring notification have occurred, and that security risk analyses are periodically performed and remediated - Parent and Foreign Subsidiaries are not Covered Entities; Borrower and each Domestic Subsidiary are Covered Entities[368] - Parent, Borrower, and each Subsidiary have entered into Business Associate agreements as required by HIPAA and are in material compliance with them[369] - To the extent they are Covered Entities or Business Associates, they are in material compliance with all applicable HIPAA requirements[370] - No security incident or breach of Protected Health Information requiring notification under 45 C.F.R. Part 164, Subpart D has occurred[372] - Security risk analyses are periodically performed and meet requirements, with all material threats and deficiencies fully remediated[373] AFFIRMATIVE COVENANTS This article outlines the ongoing obligations of the Borrower and Parent to provide financial information, maintain existence, comply with laws, protect properties, and adhere to various operational and regulatory requirements Financial Information, Reports, Notices, Etc. This section outlines the Borrower's and Parent's ongoing obligations to furnish various financial information, reports, and notices to the Administrative Agent and Lenders, including monthly, quarterly, and annual financial statements, compliance certificates, and prompt notification of defaults, material adverse developments, and other significant events, with specific provisions for handling Material Non-Public Information (MNPI) - Borrower must furnish monthly unaudited reports (within 30 days) including Revenue Base (total and by Product), Liquidity, employee count, and a Monthly KPI Report[376] - Quarterly unaudited consolidated financial statements and Revenue Base reports are required within 45 days[377] - Annual audited consolidated financial statements are required within 120 days, without Impermissible Qualification[377] - A Compliance Certificate, showing compliance with Section 8.4 and reporting defaults, new Subsidiaries, or acquired real property, must be delivered concurrently with financial information[377] - Prompt notice (within three days) is required for Defaults, material adverse developments in litigation/labor, product-related claims over $[*]**, and certain Benefit Plan liabilities or unionization efforts[377][378] - Procedures are established for handling Material Non-Public Information (MNPI) to ensure compliance with securities laws, allowing Lenders to refuse or direct delivery of such information[381] Maintenance of Existence; Compliance with Contracts, Laws, Etc Parent and each Subsidiary covenant to preserve their legal existence (with permitted exceptions), perform material obligations under Material Agreements, and comply materially with all applicable laws, rules, regulations, and orders, including timely payment of material Taxes (unless diligently contested with adequate reserves) - Parent and each Subsidiary will preserve their legal existence (except as permitted by Section 8.7)[383] - They will perform in all material respects their obligations under Material Agreements and comply in all material respects with all applicable Laws, rules, regulations, and orders[383] - This includes the timely payment of all material Taxes, unless diligently contested in good faith with adequate IFRS reserves[383] Maintenance of Properties Parent and each Subsidiary covenant to maintain, preserve, protect, and keep their properties in good repair and working order, making necessary repairs and replacements to ensure proper business conduct, unless continued maintenance is no longer economically desirable or disposition is permitted - Parent and each Subsidiary will maintain, preserve, protect, and keep their properties in good repair, working order, and condition (ordinary wear and tear excepted)[384] - They will make necessary repairs, renewals, and replacements to ensure proper business conduct[384] - This obligation applies unless continued maintenance is no longer economically desirable, necessary, or useful, or disposition is permitted by Section 8.7 or 8.8[384] Insurance Parent and each Subsidiary covenant to maintain customary property, casualty, business interruption, and worker's compensation insurance with reputable companies, with all required policies (excluding D&O and workers' comp) naming the Administrative Agent as mortgagee/lender loss payee and additional insured, and providing 30 days' prior written notice for cancellation or material modification - Parent and each Subsidiary will maintain insurance on property against business interruption, loss, and damage, and worker's compensation/employer's liability insurance[385] - All required insurance policies (except D&O and workers' comp) must name the Administrative Agent as mortgagee/lender loss payee and additional insured[386] - Policies must provide at least 30 days' prior written notice to the Administrative Agent for any cancellation or material modification[386] Books and Records Parent and each Subsidiary covenant to maintain IFRS-compliant books and records accurately reflecting business affairs, and permit the Administrative Agent, Lenders, or their representatives to visit offices, discuss financial matters with officers and accountants, and examine/photocopy books and records upon reasonable notice, with the Borrower paying independent public accountant fees incurred by such access - Parent and Subsidiaries will keep IFRS-compliant books and records accurately reflecting business affairs and transactions[388] - They must permit the Administrative Agent, Lenders, or their representatives to visit offices, discuss financial matters, and examine/photocopy books and records upon reasonable notice[388] - Borrower will pay any fees of the independent public accountant incurred in connection with the Administrative Agent's or Lender's exercise of these rights[388] Environmental Law Covenant Parent and each Subsidiary covenant to operate their businesses and properties in material compliance with all Environmental Laws, maintain all Environmental Permits, and promptly notify the Administrative Agent of any material claims or non-compliance, and promptly resolve and mitigate any such issues - Parent and each Subsidiary will operate their businesses, facilities, and properties in material compliance with all Environmental Laws and maintain all Environmental Permits[389] - They will promptly notify the Administrative Agent of, and provide copies of material claims relating to, any actual or alleged non-compliance or Environmental Liabilities[389] - They will promptly resolve, remedy, and mitigate any such non-compliance or Environmental Liabilities[389] Use of Proceeds The Borrower covenants to use the proceeds of the Loans to repay certain existing indebtedness of Parent and Subsidiaries, for general corporate purposes, to pay transaction fees and expenses, and to satisfy obligations under the GH Agreement - Loan proceeds will be used to repay certain existing indebtedness of Parent and Subsidiaries[390] - Proceeds will also be used for general corporate purposes and to pay fees and expenses associated with the transactions[390] - Proceeds will be used to satisfy obligations under the GH Agreement[390] Future Guarantors, Security, Etc Parent, the Borrower, and each other Subsidiary (excluding Excluded Subsidiaries) covenant to execute necessary documents to grant, preserve, protect, and perfect first-priority Liens on their assets for the Obligations, including causing newly acquired/organized Subsidiaries to become Guarantors and pledge their Capital Securities, and promptly notifying the Adm