Exhibit 10.39


 





 



 


GUARANTEE AND COLLATERAL AGREEMENT


 


dated as of March 25, 2020


 


among


 


RESHAPE LIFESCIENCES INC.


 


and


 


RESHAPE MEDICAL LLC


 


as Grantors,


 


and


 


ARMISTICE CAPITAL MASTER FUND LTD.,


as Lender


 





 



 






     


     


    

 


GUARANTEE AND COLLATERAL AGREEMENT


 


Guarantee and Collateral
Agreement, dated as of March 25, 2020 (this “Agreement”), made by each signatory hereto (together with
any other Person that becomes a party hereto as provided herein, (“Grantors”), in favor of Armistice Capital
Master Fund Ltd., a Cayman Islands exempted company (“Lender”).


 


Lender has agreed to
extend credit to ReShape Lifesciences Inc., a Delaware corporation (“Borrower”’) pursuant to the Credit
Agreement (as defined below). Borrower is affiliated with each other Grantor. The proceeds of credit extended under the Credit
Agreement will be used in part to enable Borrower to make valuable transfers to Grantors in connection with the operation of their
respective businesses. Borrower and the other Grantors are engaged in interrelated businesses, and each Grantor will derive substantial
direct and/or indirect benefit from extensions of credit under the Credit Agreement.


 


It is a condition precedent
to Lender’s obligation to extend credit under the Credit Agreement that Grantors shall have executed and delivered this Agreement
to Lender.


 


In consideration of
the premises and to induce Lender to enter into the Credit Agreement and to induce Lender to extend credit thereunder, each Grantor
hereby agrees with Lender, as follows:


 


		1.	Definitions.



 


1.1           Unless
otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit
Agreement, and the following terms are used herein as defined in the UCC (as defined below): Accounts, Certificated Security, Chattel
Paper, Commercial Tort Claims, Control, Deposit Accounts, Documents, Electronic Chattel Paper, Equipment, Farm Products, Goods,
Health-Care-Insurance Receivables, Instruments, Inventory, Letter-of-Credit Rights and Supporting Obligations. Unless
otherwise expressly stated to the contrary herein, the interpretation of terms in this Agreement shall be governed by the rules set
forth in Section 1.2 of the Credit Agreement.


 


1.2           When
used herein the following terms shall have the following meanings:


 


Agreement
has the meaning set forth in the preamble hereto.


 


Borrower
has the meaning set forth in the preamble hereto.


 


Borrower
Obligations means all Obligations of Borrower.


 


Collateral means
(a) all of each Grantor’s right, title and interest in and to Accounts, Chattel Paper (including Electronic
Chattel Paper), Deposit Accounts, Documents, Equipment, Farm Products, General Intangibles, Goods, Health-Care-Insurance
Receivables, Instruments, Intellectual Property, Inventory, Investment Property, Letter-of-Credit Rights,
Supporting Obligations, Identified Claims and other personal property, in each case whether now owned or at any time
hereafter acquired or arising, (b) all books and records pertaining to any of the foregoing, (c) all Proceeds and
products of any of the foregoing and (d) all collateral security and guarantees given by any Person with respect to any
of the foregoing; provided, that the Collateral (nor any defined term used in the definition thereof) shall not
include the Excluded Property. Where the context requires, terms relating to the Collateral or any part thereof, when used in
relation to a Grantor, shall refer to such Grantor’s Collateral or the relevant part thereof.


 








     


     


    

 


Copyrights
means all copyrights arising under the laws of the United States, any other country or any political subdivision thereof, and any
other rights in works of authorship whether registered or unregistered and whether published or unpublished, all registrations
and recordings and tangible media thereof, and all applications in connection therewith, including all registrations and applications
in the United States Copyright Office and any foreign copyright offices, and the right to obtain all renewals and extensions of
any of the foregoing, along with any moral rights or any equivalent rights.


 


Copyright
Licenses means all written agreements naming any Grantor as licensor or licensee, granting any right under any Copyright,
including the grant of rights to manufacture, reproduce, distribute, exploit and sell materials derived from any Copyright.


 


Credit
Agreement means the Credit Agreement of even date herewith between Borrower and Lender, as amended, supplemented, restated
or otherwise modified from time to time.


 


Excluded
Property means, with respect to a Grantor, (a) motor vehicles and other assets subject to certificates of
title, (b) “intent-to-use” Trademarks for which a statement of use has not been filed and accepted with the
U.S. Patent and Trademark Office and any other Intellectual Property if the grant of a Lien on or security interest in such
Intellectual Property would result in the cancellation or voiding of such Intellectual Property, (c) any receivable paid
into a Trust Account (as defined in the Credit Agreement) and the balance of any such Trust Account maintained by any Grantor
for the benefit of an agency of the federal government of the United States of America, (d) Exempt Accounts (excluding
accounts constituting Exempt Accounts pursuant to clause (a)(iv) of the definition thereof), (e) any assets owned
by such Grantor that are subject to a purchase money security interest or a Capital Lease permitted under the Credit
Agreement, but only to the extent that the agreements governing such purchase money security interest or Capital Lease
prohibit the granting of other Liens in such assets and any necessary consent required for the granting of other Liens in
such assets has not been obtained; (f) any property of the type expressly excluded from the definitions of Investment
Property and Pledged Equity; (g) any item of General Intangibles that is now or hereafter held by such Grantor but only
to the extent that such item of General Intangibles (or any agreement evidencing such item of General Intangibles) contains a
term or is subject to a rule of law, statute or regulation that restricts, prohibits, or requires a consent (that has
not been obtained) of a Person (other than such Grantor) to, the creation, attachment or perfection of the security interest
granted herein, and any such restriction, prohibition and/or requirement of consent is effective and enforceable under
applicable law and is not rendered ineffective by applicable law (including, without limitation, pursuant to Sections 9-406,
9-407, 9-408 or 9-409 of the UCC), and (h) real property owned by any Grantor, interests in real property leases of any
Grantor and any fixtures thereon; provided, however, that (x) Excluded Property shall not include any
Proceeds of any item of General Intangibles or Proceeds of any other Excluded Property unless such Proceeds themselves
constitute Excluded Property pursuant to clauses (a), (b), (c), (d), (e), (f), (g) or (h) above, and (y) any
item of General Intangibles or other Excluded Property that at any time ceases to satisfy the criteria for Excluded Property
(whether as a result of the applicable Grantor obtaining any necessary consent, any change in any rule of law, statute
or regulation, or otherwise), shall no longer be Excluded Property.


 






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General
Intangibles means all “general intangibles” as such term is defined in Section 9-102 of the UCC and,
in any event, including with respect to any Grantor, all contracts, agreements, instruments and indentures in any form, and portions
thereof, to which such Grantor is a party or under which such Grantor has any right, title or interest or to which such Grantor
or any property of such Grantor is subject, as the same from time to time may be amended, supplemented or otherwise modified, including,
without limitation, (a) all rights of such Grantor to receive moneys due and to become due to it thereunder or in connection
therewith, (b) all rights of such Grantor to damages arising thereunder and (c) all rights of such Grantor to perform
and to exercise all remedies thereunder.


 


Grantors
has the meaning set forth in the preamble hereto.


 


Guarantor
Obligations means, with respect to each Guarantor, all of such Guarantor’s Obligations.


 


Guarantors
means the collective reference to each Grantor other than Borrower.


 


Identified
Claims means the Commercial Tort Claims described on Schedule 7.


 


Intellectual
Property means the collective reference to all rights, priorities and privileges relating to intellectual property anywhere
in the world, including Copyrights, Copyright Licenses, Patents, Patent Licenses, Trademarks and Trademark Licenses, and all rights
to sue at law or in equity for any past, present or future infringement, misappropriation, dilution or other impairment thereof,
including the right to receive all proceeds and damages therefrom, including, but not limited to, Copyrights, Patents and Trademarks
related to lap band and vest technology.


 


Intercompany
Note means any promissory note evidencing loans made by any Grantor to any other Grantor.


 


Investment
Property means the collective reference to (a) all “investment property” as such term is defined in
Section 9-102 of the UCC (other than the equity interest of any Foreign Subsidiary or Excluded Foreign Holding Company excluded
from the definition of Pledged Equity), (b) all “financial assets” as such term is defined in Section 8-102(a)(9) of
the UCC, and (c) whether or not constituting “investment property” as so defined, all Pledged Notes and all Pledged
Equity.


 


Issuers
means the collective reference to each issuer of any Investment Property which constitutes Collateral.


 


Lender
has the meaning set forth in the preamble hereto.


 


Patents means
(a) all letters patent of the United States, any other country or any political subdivision thereof or any international
or regional body, all reissues, renewals and extensions thereof, (b) all applications for letters patent of the United
States or any other country and all political subdivisions thereof or any international or regional bodies, continuations,
divisionals and continuations-in-part thereof, and any patents maturing therefrom (c) the inventions disclosed or
claimed therein, and (d) all rights to obtain any reissues or extensions of the foregoing.


 






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Patent
Licenses means all written agreements providing for the grant by or to any Grantor of any right to make, manufacture,
use, import, export, offer for sale or sell any invention covered in whole or in part by a Patent.


 


Permitted
Liens means the Liens permitted under Section 7.2 of the Credit Agreement.


 


Pledged
Equity means the equity interests listed on Schedule 1, together with any other equity interests, certificates,
options or rights of any nature whatsoever in respect of the equity interests of any Person that may be issued or granted to, or
held by, any Grantor while this Agreement is in effect; provided that in no event shall more than 65% of the total outstanding
equity interests of any Foreign Subsidiary or Excluded Foreign Holding Company constitute Pledged Equity.


 


Pledged
Notes means all promissory notes listed on Schedule 1, all Intercompany Notes at any time issued to any Grantor
and all other promissory notes issued to or held by any Grantor (other than any individual promissory note which is less than $1,000,000
in principal amount, up to an aggregate of $3,500,000 for all such promissory notes excluded thereby at any time).


 


Proceeds
means all “proceeds” as such term is defined in Section 9-102 of the UCC and, in any event, shall include all
dividends or other income from the Investment Property, collections thereon or distributions or payments with respect thereto.


 


Receivable
means any right to payment for goods sold or leased or for services rendered, whether or not such right is evidenced by an Instrument
or Chattel Paper and whether or not it has been earned by performance (including any Accounts); it being acknowledged and agreed
by Lender that any receivable paid into a Trust Account maintained by any Grantor for the benefit of an agency of the United States
of America shall not be deemed to be a receivable within the meaning of this Agreement.


 


Secured
Obligations means, collectively, Borrower Obligations and Guarantor Obligations.


 


Securities
Act means the Securities Act of 1933, as amended.


 


Trademarks
means (a) all trademarks, trade names, corporate names, company names, business names, fictitious business names, service
marks, logos, designs and other source or business identifiers, and all goodwill associated therewith, now existing or hereafter
adopted or acquired, all registrations and recordings thereof, and all applications in connection therewith, whether in the United
States Patent and Trademark Office or in any similar office or agency of the United States, any State thereof or any other country
or any political subdivision o international or regional body thereof, or otherwise, and all common-law rights related thereto,
and (b) the right to obtain all renewals thereof.


 






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Trademark
Licenses means, collectively, each written agreement providing for the grant by or to any Grantor of any right to use
any Trademark.


 


UCC
means the Uniform Commercial Code as in effect on the date hereof and from time to time in the State of New York, provided that
if by reason of mandatory provisions of law, the perfection or the effect of perfection or non-perfection of the security interests
in any Collateral or the availability of any remedy hereunder is governed by the Uniform Commercial Code as in effect on or after
the date hereof in any other jurisdiction, “UCC” means the Uniform Commercial Code as in effect in such other jurisdiction
for purposes of the provisions hereof relating to such perfection or effect of perfection or non-perfection or availability of
such remedy.


 


		2.	Guarantee.



 


2.1            Guarantee.


 


(a)            Each
of the Guarantors hereby, jointly and severally, unconditionally and irrevocably, guarantees to Lender and its successors, indorsees,
transferees and permitted assigns, the prompt and complete payment and performance by Borrower when due (whether at the stated
maturity, by acceleration or otherwise) of Borrower Obligations.


 


(b)           Anything
herein or in any other Loan Document to the contrary notwithstanding, the maximum liability of each Guarantor hereunder and under
the other Loan Documents shall in no event exceed the amount which can be guaranteed by such Guarantor under applicable federal
and state laws relating to the insolvency of debtors or any applicable laws relating to fraudulent conveyances or fraudulent transfers
(after giving effect to the right of contribution established in Section 2.2). The provisions of this Section 2.1(b) shall
be implemented automatically without the need for any amendment or modification to the Loan Documents.


 


(c)            Each
Guarantor agrees that the Secured Obligations may at any time and from time to time exceed the amount of the liability of such
Guarantor hereunder without impairing the guarantee contained in this Section 2 or affecting the rights and remedies
of the Lender hereunder.


 


(d)            The
guarantee contained in this Section 2 shall remain in full force and effect until all of the Secured Obligations shall
have been Paid in Full.


 


(e)            No
payment made by Borrower, any of the Guarantors, any other guarantor or any other Person or received or collected by Lender from
Borrower, any of the Guarantors, any other guarantor or any other Person by virtue of any action or proceeding or any set-off or
appropriation or application at any time or from time to time in reduction of or in payment of the Secured Obligations shall be
deemed to modify, reduce, release or otherwise affect the liability of any Guarantor hereunder which shall, notwithstanding any
such payment (other than any payment made by such Guarantor in respect of the Secured Obligations or any payment received or collected
from such Guarantor in respect of the Secured Obligations), remain liable for the Secured Obligations up to the maximum liability
of such Guarantor hereunder until the Secured Obligations are Paid in Full.


 






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2.2            Right
of Contribution. Each Guarantor hereby agrees that to the extent that a Guarantor shall have paid more than its proportionate
share of any payment made hereunder, such Guarantor shall be entitled to seek and receive contribution from and against any other
Guarantor hereunder which has not paid its proportionate share of such payment. Each Guarantor’s right of contribution shall
be subject to the terms and conditions of Section 2.3. The provisions of this Section 2.2 shall in no respect
limit the obligations and liabilities of any Guarantor to Lender, and each Guarantor shall remain liable to Lender for the full
amount guaranteed by such Guarantor hereunder.


 


2.3            No
Subrogation. Notwithstanding any payment made by any Guarantor hereunder or any set-off or application of funds of any Guarantor
by Lender, no Guarantor shall be entitled to be subrogated to any of the rights of Lender against Borrower or any other Guarantor
or any collateral security or guarantee or right of offset held by Lender for the payment of the Secured Obligations, nor shall
any Guarantor seek or be entitled to seek any contribution or reimbursement from Borrower or any other Guarantor in respect of
payments made by such Guarantor hereunder, until all of the Secured Obligations are Paid in Full; provided that any such
right of contribution or reimbursement against any Borrower or any other Guarantor (including any right under Section 2.2)
shall be irrevocably and automatically waived in the event the Pledged Equity or other equity securities of such Borrower or other
Guarantor are sold or otherwise transferred or disposed of in connection with the exercise of rights and remedies by Agent (including
in connection with a consensual sale, transfer or other disposition in lieu of foreclosure) and in connection with such sale or
transfer, all or a portion of the Secured Obligations are Paid in Full. If any amount shall be paid to any Guarantor on account
of such subrogation rights at any time when all of the Secured Obligations shall not have been Paid in Full, such amount shall
be held by such Guarantor in trust for Lender, segregated from other funds of such Guarantor, and shall, forthwith upon receipt
by such Guarantor, be turned over to Lender in the form received by such Guarantor (duly indorsed by such Guarantor to Lender,
if required), to be applied against the Secured Obligations in accordance with Lender’s sole discretion.


 


2.4            Amendments, etc.
with respect to the Secured Obligations. Each Guarantor shall remain obligated hereunder notwithstanding that, without any
reservation of rights against any Guarantor and without notice to or further assent by any Guarantor, any demand for payment of
any of the Secured Obligations made by Lender may be rescinded by Lender and any of the Secured Obligations continued, and the
Secured Obligations, or the liability of any other Person upon or for any part thereof, or any collateral security or guarantee
therefor or right of offset with respect thereto, may, from time to time, in whole or in part, be renewed, extended, amended, modified,
accelerated, compromised, waived, surrendered or released by Lender, and the Credit Agreement and the other Loan Documents and
any other documents executed and delivered in connection therewith may be amended, modified, supplemented or terminated, in whole
or in part, as Lender may deem advisable from time to time, and any collateral security, guarantee or right of offset at any time
held by Lender for the payment of the Secured Obligations may be sold, exchanged, waived, surrendered or released. Lender shall
not have any obligation to protect, secure, perfect or insure any Lien at any time held by it as security for the Secured Obligations
or for the guarantee contained in this Section 2 or any property subject thereto. 


 






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2.5            Guarantee
Absolute and Unconditional. Each Guarantor waives to the maximum extent permitted by applicable law any and all notice of
the creation, renewal, extension or accrual of any of the Secured Obligations and notice of or proof of reliance by
Lender upon the guarantee contained in this Section 2 or acceptance of the guarantee contained in this Section 2;
the Secured Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or
renewed, extended, amended or waived, in reliance upon the guarantee contained in this Section 2, and all
dealings between Borrower and any of the Guarantors, on the one hand, and Lender, on the other hand, likewise shall be
conclusively presumed to have been had or consummated in reliance upon the guarantee contained in this Section 2.
Each Guarantor waives to the maximum extent permitted by applicable law (a) diligence, presentment, protest, demand for
payment and notice of default or nonpayment to or upon Borrower or any of the Guarantors with respect to the Secured
Obligations, (b) notice of the existence or creation or non-payment of all or any of the Secured Obligations, and
(c) all diligence in collection or protection of or realization upon any Secured Obligations or any security for or
guaranty of any Secured Obligations. Each Guarantor understands and agrees that the guarantee contained in this Section 2
shall be construed as a continuing, absolute and unconditional guarantee of payment without regard to (i) the validity
or enforceability of the Credit Agreement or any other Loan Document, any of the Secured Obligations or any other collateral
security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by Lender,
(ii) any defense, set-off or counterclaim (other than a defense of payment or performance) whatsoever which may at any
time be available to or be asserted by Borrower or any other Person against Lender, or (iii) any other circumstance
whatsoever (with or without notice to or knowledge of Borrower or such Guarantor) which constitutes, or might be construed to
constitute, an equitable or legal discharge of Borrower for the Secured Obligations (other than a defense of payment or
performance), or of such Guarantor under the guarantee contained in this Section 2, in bankruptcy or in any other
instance. When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor,
Lender may, but shall be under no obligation to, make a similar demand on or otherwise pursue such rights and remedies as it
may have against Borrower, any other Guarantor or any other Person or against any collateral security or guarantee for the
Secured Obligations or any right of offset with respect thereto, and any failure by Lender to make any such demand, to pursue
such other rights or remedies or to collect any payments from Borrower, any other Guarantor or any other Person or to realize
upon any such collateral security or guarantee or to exercise any such right of offset, or any release of Borrower, any other
Guarantor or any other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor
of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or
available as a matter of law, of Lender against any Guarantor. For the purposes hereof “demand” shall include the
commencement and continuance of any legal proceedings. Each Guarantor waives any right that it may have under such applicable
law to require that Agent commence action against Borrower or any other person or against any of the Collateral.


 


Lender may, from
time to time, at its sole discretion and without notice to any Guarantor (or any of them), take any or all of the following
actions: (a) retain or obtain a security interest in any property to secure any of the Secured Obligations or any
obligation hereunder, (b) retain or obtain the primary or secondary obligation of any obligor or obligors with respect
to any of the Secured Obligations, (c) extend or renew any of the Secured Obligations for one or more periods (whether
or not longer than the original period), alter or exchange any of the Secured Obligations, or release or compromise any
obligation of any Guarantor or any obligation of any nature of any other obligor with respect to any of the Secured
Obligations, (d) release any guaranty or right of offset or its security interest in, or surrender, release or permit
any substitution or exchange for, all or any part of any property securing any of the Secured Obligations or any obligation
hereunder, or extend or renew for one or more periods (whether or not longer than the original period) or release,
compromise, alter or exchange any obligations of any nature of any obligor with respect to any such property, and
(e) resort to any Guarantor for payment of any of the Secured Obligations when due, whether or not Lender shall have
resorted to any property securing any of the Secured Obligations or any obligation hereunder or shall have proceeded against
any other Guarantor or any other obligor primarily or secondarily obligated with respect to any of the Secured
Obligations.


 






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2.6           Payments.
Each Guarantor hereby guarantees that payments hereunder will be paid to Lender without set-off or counterclaim (other than for
the defense of payment or performance in full) in Dollars at the office of Lender specified in the Credit Agreement.


 


2.7           Financial
Condition. Each Guarantor hereby assumes responsibility for being and remaining informed of the financial condition of Borrower
and of all other circumstances bearing upon the risk of nonpayment of amounts owing under the Credit Agreement which diligent inquiry
would reveal and agrees that Lender shall not have a duty to advise such Guarantor of information known to it regarding such condition
or any such circumstances.


 


		3.	Grant of Security Interest.



 


Each Grantor hereby
grants to Lender a security interest in all of its Collateral, as collateral security for the prompt and complete payment and performance
when due (whether at the stated maturity, by acceleration or otherwise) of the Secured Obligations.


 


		4.	Representations and Warranties.



 


To induce Lender to
enter into the Credit Agreement and to induce Lender to make extensions of credit to Borrower thereunder, each Grantor jointly
and severally hereby represents and warrants to Lender that:


 


4.1           Title.
Except for Permitted Liens, the Grantors own each item of the Collateral free and clear of any and all Liens.


 


4.2           Perfected
First Priority Liens. The security interests granted pursuant to this Agreement pursuant to Article 8 and Article 9
of the UCC (a) upon completion of the filings and other actions specified on Schedule 2 (which, in the case of all
filings and other documents referred to on Schedule 2, shall be delivered to Lender in completed and, if applicable, duly
executed form on the Closing Date or on such later date as permitted by the terms of this Agreement or the Credit Agreement) will
constitute valid perfected security interests as of such date (to the extent perfection can be accomplished by such filing or action)
in all of the Collateral in favor of Lender as collateral security for each Grantor’s Obligations, enforceable in accordance
with the terms hereof against all creditors of each Grantor (subject to the effects of bankruptcy, insolvency and similar laws
affecting the enforceability of creditors’ rights generally and to general equitable principles) and any Persons purporting
to purchase any Collateral from each Grantor, and (b) are prior to all other Liens on the Collateral in existence on the date
hereof except for Permitted Liens.


 






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4.3           Grantor
Information. On the date hereof, Schedule 3 sets forth (a) each Grantor’s jurisdiction of organization, (b) the
location of each Grantor’s chief executive office, (c) each Grantor’s exact legal name as it appears on its organizational
documents, (d) each Grantor’s federal employer identification number, and (e) each Grantor’s organizational
identification number.


 


4.4           Collateral
Locations. On the date hereof, Schedule 4 sets forth (a) each place of business of each Grantor (including its
chief executive office), (b) all locations where all Inventory and the Equipment owned by each Grantor is kept, except (i) Inventory
and Equipment that is “in transit” or out for repair or restoration, or (ii) Inventory and Equipment in the possession
of employees in the ordinary course of business, and (c) whether each such Collateral location and place of business (including
each Grantor’s chief executive office) is owned or leased (and if leased, specifies the complete name and notice address
of each lessor). On the date hereof, no Collateral is located outside the United States or (except for Inventory and Equipment
within the scope of clause (b) above) in the possession of any lessor, bailee, warehouseman or consignee, except as indicated
on Schedule 4.


 


4.5           Certain
Property. None of the Collateral constitutes, or is the Proceeds of, (a) Farm Products, (b) Health-Care-Insurance
Receivables or (c) vessels, aircraft or any other property subject to any certificate of title or other registration statute
of the United States, any State or other jurisdiction, except for motor vehicles owned by the Grantors and used by employees of
the Grantors in the ordinary course of business and subject to clause (a) of the definition of Excluded Property.


 


4.6           Investment
Property.


 


(a)            The
shares of Pledged Equity pledged by each Grantor hereunder constitute all the issued and outstanding equity interests of each Issuer
owned by such Grantor or, in the case of any Foreign Subsidiary or Excluded Foreign Holding Company, 65% of all issued and outstanding
equity interests of such Foreign Subsidiary or Excluded Foreign Holding Company. All certificates, if any evidencing the Pledged
Equity pledged by any Grantor hereunder as of the date hereof have been delivered to Lender.


 


(b)            All
of the Pledged Equity issued by any Subsidiary of any Grantor has been duly and validly issued and, if shares of corporate
stock, is fully paid and nonassessable (to the extent applicable). Each Grantor has the right and requisite authority to
pledge, assign, transfer, deliver, deposit and set over the Pledged Equity owned by such Grantor to Lender as provided
herein. No consent, approval, authorization or other order or other action by, and no notice to or filing with, any
governmental entity or any other Person which has not yet been obtained or made is required either (i) for the pledge by
any Grantor of the Pledged Equity pursuant to this Agreement or (ii) for the exercise by Lender of the voting or other
rights in respect of the Pledged Equity provided for in this Agreement or the remedies in respect of the Pledged Equity
pursuant to this Agreement, except as may be required in connection with such disposition by laws affecting the offering and
sale of securities generally or the UCC. The pledge by each Grantor of such Grantor’s Pledged Equity pursuant to this
Agreement does not violate (i) the charter, by-laws, operating agreement or other organizational documents of any
Grantor or any Issuer that is a Subsidiary of any Grantor, or any indenture, mortgage or agreement to which any Grantor or
issuer is bound, or (ii) any restriction on such transfer or encumbrance of Pledged Equity with respect to any
Issuer that is a Subsidiary of any Grantor, or (iii) any securities law or other applicable law, in each case to with
respect to the foregoing clauses (i), (ii) and (iii), except where such violation could not reasonably be expected to
result in a Material Adverse Effect. With respect to any Pledged Equity constituting certificated securities, the delivery of
the certificate representing such Pledged Equity endorsed to Lender or in blank will perfect Lender’s security interest
in such Pledged Equity and any proceeds thereof by “control” (within the meaning of the applicable UCC).


 






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(c)            Schedule
1 lists all Investment Property owned by each Grantor as of the Closing Date. Each Grantor is the record and beneficial owner
of, and has good and marketable title to, the Investment Property pledged by it hereunder, free of any and all Liens or options
in favor of any other Person, except the security interest created by this Agreement and, in the case of Investment Property which
does not constitute Pledged Equity or Pledged Notes, for Permitted Liens.


 


4.7            Receivables.


 


(a)            No
amount payable to such Grantor under or in connection with any Receivable is evidenced by any Instrument or Chattel Paper which
has not been delivered to Lender unless delivery thereof is excused by the provisions of Section 5.1 hereof.


 


(b)            The
amounts represented by such Grantor to Lender from time to time as owing to such Grantor in respect of the Receivables (to the
extent such representations are required by any of the Loan Documents) will at all such times be accurate in all material respects.


 


4.8            Intellectual
Property.


 


(a)            On
the date hereof, Schedule 5 lists all patented or registered Intellectual Property (and all applications for Patents or
registrations thereof), material Copyright Licenses, material Trademark Licenses and material Patent Licenses owned by each Grantor.


 


(b)            On
the date hereof, all material Intellectual Property owned by such Grantor is valid, subsisting, in-force, unexpired and enforceable,
has not been abandoned, expired or lapsed and, to such Grantor’s knowledge, all such material Intellectual Property and all
physical manifestations, embodiments or uses thereof does not infringe, misappropriate or dilute the Intellectual Property rights
of any other Person.


 


(c)            On
the date hereof, except as set forth in Schedule 5, none of the Intellectual Property owned by any Grantor is the subject
of any licensing or franchise agreement pursuant to which such Grantor is the licensor or franchisor.


 


(d)            To
the knowledge of Grantors, no holding, decision or judgment has been rendered by any governmental or administrative authority which
would limit, invalidate, render unenforceable, cancel or question the validity or enforceability of, or any Grantor’s rights
in, any Intellectual Property owned by any Grantor in any material respect (other than office actions issued in the ordinary course
of prosecution of any pending applications for Patents or applications for registration of other Intellectual Property).


 









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(e)            No
action or proceeding is pending, or, to the knowledge of such Grantor, threatened in writing, on the date hereof (i) seeking
to limit, invalidate, render unenforceable, cancel or question the validity or enforceability of any material Intellectual Property
owned by such Grantor or any Grantor’s ownership interest therein, or (ii) which, if adversely determined, could reasonably
be expected to have a Material Adverse Effect.


 


(f)             Each
Grantor owns and possesses or has a license or other right to use all Intellectual Property as is necessary for the conduct of
the businesses of such Grantor, without any infringement upon, misappropriation of or dilution of rights of others which could
reasonably be expected to have a Material Adverse Effect.


 


4.9            Deposit
and Other Accounts. All Deposit Accounts and all other accounts maintained by each Grantor as of the date hereof (other than
Exempt Accounts) are described on Schedule 6 hereto, which description includes for each such account the name of the Grantor
maintaining such account, the name, address, telephone and fax numbers of the financial institution at which such account is maintained,
the account number and the account officer, if any, of such account.


 


4.10            Credit
Agreement. Each Grantor makes each of the representations and warranties made by Borrower in Sections 5.1, 5.2, 5.3, 5.10 and
5.12 of the Credit Agreement to the extent applicable to such Grantor (which representations and warranties shall be deemed to
have been renewed upon each borrowing under the Credit Agreement, except to the extent such representations and warranties relate
to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects
(without duplication of any materiality qualifiers) as of such earlier date). Such representations and warranties are incorporated
herein by this reference as if fully set forth herein.


 


		5.	Covenants.



 


Each Grantor covenants
and agrees with Lender that, from and after the date of this Agreement until the Secured Obligations shall have been Paid in Full:


 


5.1            Delivery
of Instruments, Certificated Securities and Chattel Paper. If any amount payable under or in connection with any of the
Collateral with a value in excess of $1,000,000 individually or $3,500,000 in the aggregate for all Grantors at any time
shall be or become evidenced by any Instrument, Certificated Security or Chattel Paper, other than checks for deposit, such
Instrument, Certificated Security or Chattel Paper shall be promptly (within five (5) Business Days) following receipt
thereof delivered to Lender, duly indorsed in a manner reasonably satisfactory to Lender, to be held as Collateral pursuant
to this Agreement and in the case of such Chattel Paper constituting Electronic Chattel Paper, the applicable Grantor shall
cause Lender to have control thereof within the meaning set forth in Section 9-105 of the UCC. In the event that an
Event of Default shall have occurred and be continuing, upon the request of Lender, any Instrument, Certificated Security or
Chattel Paper not theretofore delivered to Lender and at such time being held by any Grantor shall be promptly (within five
(5) Business Days of a written request) delivered to Lender, duly indorsed in a manner reasonably satisfactory to
Lender, to be held as Collateral pursuant to this Agreement and in the case of Electronic Chattel Paper, the applicable
Grantor shall cause Lender to have control thereof within the meaning set forth in Section 9-105 of the UCC.


 






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5.2            Maintenance
of Perfected Security Interest: Further Documentation.


 


(a)            Such
Grantor shall maintain the security interest created by this Agreement as a perfected security interest in the Collateral having
the priority described in Section 4.2 and shall defend such security interest against the claims and demands (other
than with respect to matters of priority with respect to Permitted Liens where such Permitted Liens are not prohibited from having
priority over the security interests granted herein) of all Persons whomsoever.


 


(b)            At
any time and from time to time, promptly following the written request of Lender, and at the sole expense of such Grantor, such
Grantor will promptly and duly execute and deliver, and have recorded, such further instruments and documents and take such further
actions as Lender may reasonably request for the purpose of obtaining or preserving the full benefits of this Agreement and of
the rights, and powers herein granted, including (i) filing any financing or continuation statements under the UCC (or other
similar laws) in effect in any jurisdiction with respect to the security interests created hereby, and (ii) in the case of
Investment Property, Deposit Accounts (other than Exempt Accounts), Electronic Chattel Paper with a face amount in excess of $1,000,000
individually and $3,500,000 in the aggregate for all Grantors and Letter of Credit Rights with respect to Letters of Credit with
a face amount in excess of $1,000,000 individually and $3,500,000 in the aggregate for all Grantors and any other relevant Collateral,
taking any actions necessary to enable Lender to obtain “control” (within the meaning of the applicable UCC) with respect
thereto, in each case pursuant to documents in form and substance reasonably satisfactory to Lender.


 


(d)            Each
Grantor authorizes Lender to, at any time and from time to time, file financing statements, continuation statements, and amendments
thereto that describe the Collateral (including describing the Collateral as “all assets” of each Grantor, or words
of similar effect), and which contain any other information required pursuant to the UCC for the sufficiency of filing office acceptance
of any financing statement, continuation statement, or amendment, and each Grantor agrees to furnish any such information to Lender
promptly upon Lender’s reasonable request. Any such financing statement, continuation statement, or amendment may be signed
(to the extent signature of a Grantor is required under applicable law) by Lender on behalf of any Grantor and may be filed at
any time in any jurisdiction.


 


(e)            Each
Grantor shall, at any time and from time to time, take such steps as Lender may reasonably request for Lender (i) use
commercially reasonable efforts to obtain an acknowledgement, in form and substance reasonably satisfactory to Lender, of any
bailee having possession of any of the Collateral with a value exceeding $1,000,000 individually or $3,500,000 in the
aggregate for all such bailees, stating that the bailee holds such Collateral for Lender, (ii) to obtain
 “control” of any letter-of-credit rights, or electronic chattel paper (as such terms are defined by the UCC with
corresponding provisions thereof defining what constitutes “control” for such items of Collateral) in each case
with a value in excess of $1,000,000 individually or $3,500,000 in the aggregate, with any agreements establishing control to
be in form and substance reasonably satisfactory to Lender, and (iii) otherwise to insure the continued perfection and
priority of Lender’s security interest in any of the Collateral and of the preservation of its rights therein as
granted or purported to be granted hereunder or under any of the other Loan Documents.


 






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5.3            Changes
in Locations, Name, etc. Such Grantor shall not, except upon ten (10) Business Days’ prior written notice (or
such lesser notice to which Lender may agree in writing in its sole discretion) to Lender and delivery to Lender of all additional
financing statements and other documents reasonably requested by Lender as to the validity, perfection and priority of the security
interests provided for herein:


 


(i)            change
the location of its chief executive office from that specified on Schedule 3 or in any subsequent notice delivered pursuant
to this Section 5.3; or


 


(ii)            change
its name, identity or corporate or limited liability company structure or jurisdiction of organization.


 


(b)            Notices.
Such Grantor will advise Lender promptly upon obtaining knowledge thereof, in reasonable detail, of any Lien (other than Permitted
Liens) on any of the Collateral which would adversely affect the ability of Lender to exercise any of its remedies hereunder.


 


5.4            Investment
Property.


 


(a)            All
certificates and/or instruments evidencing the Pledged Equity on the date hereof shall be delivered to and held or on behalf
of the Lender pursuant hereto. All Pledged Equity shall be accompanied by (a) duly executed instruments of transfer to
be assigned in blank (“Instrument of Transfer”), substantially in the form of Annex II attached
hereto or otherwise in form and substance satisfactory to Lender, (b) a duly executed irrevocable proxy, in
substantially the form of Annex III hereto (“Irrevocable Proxy”), and (c) to the extent the
Issuer thereof is a Subsidiary of any Grantor, a duly acknowledged equity interest registration page, in blank, from the
applicable Issuer, substantially in the form of Annex IV hereto or otherwise in form and substance reasonably
satisfactory to Lender. If such Grantor shall hereafter become entitled to receive or shall receive any certificate, option
or rights in respect of the equity interests of any Issuer constituting Collateral, whether in addition to, in substitution
of, as a conversion of, or in exchange for, any of the Pledged Equity, or otherwise in respect thereof, such Grantor shall
accept the same as the agent of Lender, hold the same in trust for Lender and deliver the same promptly to Lender in the form
received, duly indorsed by such Grantor to Lender, if required, together with an undated Instrument of Transfer covering such
certificate duly executed in blank by such Grantor and with, if Lender so requests, signature guaranteed, to be held by
Lender, subject to the terms hereof, as additional Collateral for the Secured Obligations. If any Grantor acquires Pledged
Equity with respect to any Issuer following the date hereof that is not an Issuer of Pledged Equity as of the date hereof,
such Grantor shall deliver an executed Irrevocable Proxy and (to the extent the Issuer thereof is a Subsidiary of any
Grantor) a Registration Page with respect to such new Issuer to Lender. Upon the occurrence and during the continuance
of an Event of Default, (i) any sums paid upon or in respect of the Investment Property upon the liquidation or
dissolution of any Issuer shall be paid over to Lender to be held, at Lender’s option, either by it hereunder as
additional Collateral for the Secured Obligations or applied to the Secured Obligations as provided in Section 6.5,
and (ii) in case any distribution of capital shall be made on or in respect of the Investment Property or any
property which constitutes Collateral shall be distributed upon or with respect to the Investment Property pursuant to the
recapitalization or reclassification of the capital of any Issuer or pursuant to the reorganization thereof, the property so
distributed shall, unless otherwise subject to a perfected Lien in favor of Lender, be delivered to Lender to be held, at
Lender’s option, either by it hereunder as additional Collateral for the Secured Obligations or applied to the Secured
Obligations as provided in Section 6.5. Upon the occurrence and during the continuance of an Event of Default, if
any sums of money or property so paid or distributed in respect of the Investment Property shall be received by such Grantor,
such Grantor shall, until such money or property is paid or delivered to Lender, hold such money or property in trust for
Lender, segregated from other funds of such Grantor, as additional Collateral for the Secured Obligations.


 






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(b)           Without
the prior written consent of Lender (which consent shall not be unreasonably withheld, delayed or conditioned with respect to clause
(i) below), such Grantor will not (i) vote to enable, or take any other action to permit, any Issuer to issue any equity
interests of any nature or to issue any other securities or interests convertible into or granting the right to purchase or exchange
for any equity interests of any nature of any Issuer (except pursuant to a transaction permitted by the Credit Agreement where
such equity interests are issued to such Grantor and pledged pursuant to this Agreement) or to alter the voting rights with respect
to any equity interests of any Issuer in any nature (ii) sell, assign, transfer, exchange, or otherwise dispose of, or grant
any option with respect to, the Investment Property or Proceeds thereof (except pursuant to a transaction expressly permitted by
the Credit Agreement) other than, with respect to Investment Property not constituting Pledged Equity or Pledged Notes, any such
action which is not prohibited by the Credit Agreement, (iii) create, incur or permit to exist any Lien or option in favor
of, or any claim of any Person with respect to, any of the Investment Property or Proceeds thereof, or any interest therein, except
for Permitted Liens, or (iv) enter into any agreement or undertaking restricting the right or ability of such Grantor or Agent
to sell, assign or transfer any of the Investment Property or Proceeds thereof, except, with respect to such Investment Property,
shareholders’ agreements entered into by such Grantor with respect to Persons in which such Grantor maintains an ownership
interest of 50% or less.


 


(c)            In
the case of each Grantor (other than Parent) which is an Issuer, such Issuer agrees that (i) it will be bound by the terms
of this Agreement relating to the Investment Property issued by it and will comply with such terms insofar as such terms are applicable
to it, (ii) it will notify Lender promptly in writing of the occurrence of any of the events described in Section 5.4(a) with
respect to the Investment Property issued by it and (iii) the terms of Sections 6.3(c) and 6.7 and each
Irrevocable Proxy with respect to the Pledged Equity of such Grantor shall apply to such Grantor with respect to all actions that
may be required of it pursuant to Section 6.3(c) or 6.7 or such Irrevocable Proxy regarding the Investment
Property issued by it.


 


5.5            Intellectual
Property.


 


(a)            Such
Grantor (either itself or through licensees) will (i) continue to use each material Trademark owned by such Grantor and
make appropriate filings evidencing such use to the extent required by applicable law to maintain such material Trademark in
full force with respect to each class of goods for which such material Trademark is currently used, free from any claim of
abandonment for non-use, (ii) use such material Trademark with the appropriate notice of registration and all other
notices and legends required by applicable law to avoid any loss of rights, in each country or jurisdiction in which
Grantor has rights in such material Trademark as of the date hereof (iii) not adopt or use any other Trademark which is
confusingly similar or a colorable imitation of such material Trademark unless such Grantor shall grant to Lender a perfected
security interest in such mark pursuant to this Agreement, and (iv) not (and not knowingly permit any licensee or
sublicensee thereof to) knowingly do any act or knowingly omit to do any act whereby such material Trademark may become
invalidated, forfeited, lapsed, abandoned, expired or impaired in any way.


 









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(b)            Such
Grantor (either itself or through licensees) will not knowingly do any act, or knowingly omit to do any act, whereby any material
Patent owned by such Grantor may become invalidated, forfeited, lapsed, abandoned, expired or dedicated to the public or otherwise
impaired.


 


(c)            Such
Grantor (either itself or through licensees) will not (and will not knowingly permit any licensee or sublicensee thereof to) knowingly
do any act or knowingly omit to do any act whereby any material Copyright owned by such Grantor may become invalidated, forfeited,
lapsed, abandoned, expired or dedicated to the public domain or otherwise impaired.


 


(d)            Such
Grantor (either itself or through licensees) will not do any act that knowingly uses any Intellectual Property to infringe, misappropriate
or dilute the intellectual property rights of any other Person.


 


(e)            Such
Grantor will notify Lender immediately (but in any event within thirty (30) days) if it knows that any application or registration
or issued patent for any material Intellectual Property owned by such Grantor may become invalidated, forfeited, lapsed, abandoned,
expired, impaired in any way or dedicated to the public (other than through expiration of their full statutory term), or of any
materially adverse determination in any proceeding against such Grantor (including the institution of, or any such determination
in any proceeding in the United States Patent and Trademark Office, the United States Copyright Office or any court or tribunal
in any country or jurisdiction) regarding, such Grantor’s ownership of, or the validity or enforceability of, any material
Intellectual Property owned by such Grantor or such Grantor’s right to register the same or to own and maintain the same
(other than office actions issued in the ordinary course of prosecution of any pending applications for Patents or applications
for registration of other Intellectual Property).


 


(f)             Whenever
such Grantor, either by itself or through any agent, employee, licensee or designee, files an application for the registration
of any Intellectual Property with the United States Patent and Trademark Office, the United States Copyright Office or any similar
office or agency in any other country or any political subdivision thereof or any regional or international body, such Grantor
shall report such filing to Lender concurrently with the next delivery of financial statements of Borrower pursuant to Section 6.1.1
or 6.1.2 of the Credit Agreement, as applicable. Upon the request of Lender, such Grantor shall execute and deliver, and
have recorded, any and all agreements, instruments, documents, and papers as Lender may reasonably request to evidence Lender’s
security interest in any Copyright, Patent or Trademark or other Intellectual Property owned by such Grantor and the goodwill and
general intangibles of such Grantor relating thereto or represented thereby.


 




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(g)            Such
Grantor will take all reasonable and necessary, as determined in its reasonably business judgment, steps to maintain and pursue
each application (and to obtain the relevant registration or issued patent) and to maintain the validity, in-force status and enforceability
of each registration and issued patent of all material Intellectual Property owned by it.


 


(h)            In
the event that any Intellectual Property owned by such Grantor is, to the knowledge of such Grantor, infringed upon or misappropriated
or diluted by a third party, such Grantor shall (i) take such actions as such Grantor shall reasonably deem appropriate under
the circumstances to protect such Intellectual Property and (ii) if such Intellectual Property is of material economic value,
promptly (and in any event within ten (10) Business Days) notify Lender after it learns thereof and, to the extent, in its
reasonable judgment, such Grantor determines it appropriate under the circumstances, sue for infringement, misappropriation or
dilution, to seek injunctive relief where appropriate and to recover any and all damages for such infringement, misappropriation
or dilution.


 


5.6            Reserved.


 


5.7            Other
Matters. If requested by Lender, each of the Grantors shall use commercially reasonable efforts to cause to be delivered to
Lender a Collateral Access Agreement with respect to Borrower’s chief executive office in a form reasonably satisfactory
to Lender, and each of the Grantors shall, at the written request of Lender, use commercially reasonable efforts to cause to be
delivered to Lender a Collateral Access Agreement with respect to other leased real property or other locations (including bailee
and third party warehouse locations) where (a) books and records are not duplicated at the chief executive office or (b) Collateral
having a fair market value in excess of $1,000,000 individually and $3,500,000 in the aggregate for such locations are located.
Such requirement may be waived at the option of Lender.


 


5.8            Commercial
Tort Claims. If any Grantor shall at any time acquire any Commercial Tort Claim in excess of $1,000,000, such Grantor shall
promptly (following knowledge of the existence thereof) notify Lender thereof in writing, therein providing a reasonable description
and summary thereof, and upon delivery thereof to Lender, such Grantor shall be deemed to thereby grant to Lender (and such Grantor
hereby grants to Lender) a security interest in such Commercial Tort Claim and all proceeds thereof.


 


5.9            Credit
Agreement. Each of the Grantors covenants that it will, and, if necessary, will cause or enable Borrower to, fully comply with
each of the covenants and other agreements set forth in the Credit Agreement applicable to such Grantor or Borrower, as applicable.


 


		6.	Remedial Provisions.



 


6.1            Reserved.


 


6.2            Communications
with Obligors: Grantors Remain Liable.


 


(a)            For
the purpose of enabling Lender to exercise rights and remedies under this Agreement after the occurrence and during the
continuation of an Event of Default, each Grantor hereby grants to Lender an irrevocable (except upon Payment in Full of the
Secured Obligations and termination of this Agreement), nonexclusive, worldwide, sublicensable, assignable, perpetual
license (exercisable without payment of royalty or other compensation to such Grantor) to make, use, sell, offer for sale,
import, export, reproduce, make derivatives works based upon, license or sublicense, and otherwise commercially exploit any
Intellectual Property now owned or hereafter acquired by such Grantor during the continuation of any Event of Default, and
wherever the same may be located, and including in such license access to all media in which any of the licensed items may be
recorded or stored and to all computer software, accounts and programs used for the compilation or printout thereof.


 






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6.3            Investment
Property.


 


(a)            Unless
an Event of Default shall have occurred and be continuing and Lender shall have given notice to the relevant Grantor of Lender’s
intent to exercise its corresponding rights pursuant to Section 6.3(b), each Grantor shall be permitted to receive
all cash dividends and distributions paid in respect of the Pledged Equity and all payments made in respect of the Pledged Notes,
to the extent permitted in the Credit Agreement, and to exercise all voting and other rights with respect to the Investment Property;
provided, that no vote shall be cast or other right exercised or action taken which could impair the Collateral or which
would be inconsistent with or result in any violation of any provision of the Credit Agreement, this Agreement or any other Loan
Document.


 


(b)            If
an Event of Default shall occur and be continuing and Lender shall give concurrent notice of its election to exercise such
rights to the relevant Grantor or Grantors, Lender shall have the right to (i) receive any and all cash dividends and
distributions, payments or other Proceeds paid in respect of the Investment Property and make application thereof to the
Secured Obligations in accordance with Section 6.5, (ii) transfer and register any or all of the Investment
Property in the name of Lender or its nominee, it being acknowledged by each Grantor (in its capacity as Grantor and, if such
Grantor is an Issuer of any Investment Property, as Issuer) that such transfer and registration may be effected by Lender by
the delivery of a Registration Page to the applicable Issuer reflecting Lender or its designee as the holder of such
Investment Property, or otherwise by Lender through its irrevocable appointment as attorney-in-fact pursuant to this
Agreement and each Irrevocable Proxy, (iii) exercise, or permit its nominee to exercise, all voting and other rights
pertaining to such Investment Property as a holder of such Investment Property, with full power of substitution to do so, and
(iv) exercise, or permit its nominee to exercise, any and all rights of conversion, exchange and subscription and any
other rights, privileges or options pertaining to such Investment Property as if it were the absolute owner thereof
(including the right to exchange at its discretion any and all of the Investment Property upon the merger, consolidation,
reorganization, recapitalization or other fundamental change in the corporate or other structure of any Issuer, or upon the
exercise by any Grantor or Lender of any right, privilege or option pertaining to such Investment Property, and in connection
therewith, the right to deposit and deliver any and all of the Investment Property with any committee, depositary, transfer
agent, registrar or other designated agency upon such terms and conditions as Lender may determine), and including with
respect to the Pledged Equity, giving or withholding written consents of stockholders, partners or members, calling special
meetings of stockholders, partners or members and voting at such meetings) and otherwise act with respect to the Investment
Property as if Lender were the outright owner thereof, (v) exercise any other rights or remedies Lender may have under
the UCC or other applicable law, and (vi) take any action and execute any instrument which Lender may deem
necessary or advisable to accomplish the purposes of this Agreement, all without liability except to account for property
actually received by it, but Lender shall have no duty to any Grantor to exercise any such right, privilege or option and
shall not be responsible for any failure to do so or delay in so doing.


 






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(c)            Each
Grantor hereby authorizes and instructs each Issuer of any Investment Property pledged by such Grantor hereunder to (i) comply
with any instruction received by it from Lender in writing that (x) states that an Event of Default has occurred and is continuing
and (y) is otherwise in accordance with the terms of this Agreement (including Section 6.3(b)), without any other
or further instructions from such Grantor, and each Grantor agrees that each Issuer shall be fully protected in so complying, and
(ii) so long as an Event of Default exists, unless otherwise expressly permitted hereby, pay any dividends, distributions
or other payments with respect to the Investment Property directly to Lender. 


 


(d)            Any
transfer to Lender or its nominee, or registration in the name of Lender or its nominee, of the whole or any part of the Investment
Property, whether by the delivery of a Registration Page to an Issuer or otherwise, shall be made solely for purposes of effectuating
voting or other consensual rights with respect to the Investment Property in accordance with the terms of this Agreement and is
not intended to effectuate any transfer of ownership of the Investment Property. Notwithstanding any delivery or modification of
a Registration Page or exercise of an Irrevocable Proxy, Lender shall not be deemed the owner of, or assume any obligations
of the owner or holder of any Investment Property unless and until Lender accepts such obligations in writing or otherwise takes
steps to foreclose its security interest in the Investment Property and become the owner thereof under applicable law (including
via sale as described in this Agreement).


 


(e)            Each
Grantor further agrees that a breach of any of the covenants contained in this Section 6.3 will cause irreparable injury
to Lender, that Lender shall have no adequate remedy at law in respect of such breach and, as a consequence, agrees that each and
every covenant contained in this Section 6.3 shall be specifically enforceable against such Grantor, and each Grantor
hereby waives and agrees not to assert any defenses against an action for specific performance of such covenants except for a defense
that the Secured Obligations are not then due and payable in accordance with the agreements and instruments governing and evidencing
such obligations.


 


6.4            Proceeds
to be Turned Over To Agent. In addition to the rights of Lender specified in Section 6.1 with respect to payments
of Receivables, if an Event of Default shall occur and be continuing, upon the request of Lender all Proceeds of Collateral received
by any Grantor consisting of cash, checks and other cash equivalent items shall be held by such Grantor in trust for Lender, segregated
from other funds of such Grantor, and shall, at the written request of Lender, forthwith (and, in any event, within two (2) Business
Days) upon receipt by such Grantor, be turned over to Lender in the form received by such Grantor (duly indorsed by such Grantor
to Lender, if required). All Proceeds received by Lender hereunder shall be applied to the Secured Obligations as provided in Section 6.5.


 


6.5            Application
of Proceeds. At such intervals as may be agreed upon by Borrower and Lender, or, if an Event of Default shall have occurred
and be continuing, at any time at Lender’s election, Lender may apply all or any part of Proceeds held in any collateral
account established pursuant hereto or otherwise received by
Lender to the payment of the Secured Obligations in accordance with Lender’s sole discretion.


 




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6.6            Code
and Other Remedies. If an Event of Default shall occur and be continuing, Lender, may exercise, in addition to all other rights
and remedies granted to it in this Agreement and in any other instrument or agreement securing, evidencing or relating to the Secured
Obligations, all rights and remedies of a secured party under the UCC or any other applicable law. Without limiting the generality
of the foregoing, Lender, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind
(except any notice required by law referred to below) to or upon any Grantor or any other Person (all and each of which demands,
defenses, advertisements and notices are hereby waived to the extent permitted by law), may in such circumstances forthwith collect,
receive, appropriate and realize upon the Collateral, or any part thereof, and/or may forthwith sell, lease, assign, give options
to purchase, or otherwise dispose of and deliver the Collateral or any part thereof (or contract to do any of the foregoing), in
one or more parcels at public or private sale or sales, at any exchange, broker’s board or office of Lender or elsewhere
upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future
delivery with assumption of any credit risk. Lender may disclaim any warranties that might arise in connection with any such lease,
assignment, grant of option or other disposition of Collateral and have no obligation to provide any warranties at such time. Lender
shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales,
to purchase the whole or any part of the Collateral so sold, free of any right or equity of redemption in any Grantor, which right
or equity is hereby waived and released. Such sales may be adjourned and continued from time to time with or without notice. Lender
shall have the right to conduct such sales on any Grantor’s premises or elsewhere and shall have the right to use any Grantor’s
premises without charge for such time or times as Lender deems necessary or advisable. Each Grantor further agrees, at Lender’s
request and during the existence of an Event of Default, to assemble the Collateral and make it available to Lender at places which
Lender shall reasonably select, whether at such Grantor’s premises or elsewhere. Lender shall apply the net proceeds of any
action taken by it pursuant to this Section 6.6. after deducting all reasonable costs and expenses of every kind incurred
in connection therewith or incidental to the care or safekeeping of any of the Collateral or in any way relating to the Collateral
or the rights of Lender hereunder, including attorneys’ fees and disbursements reimbursable pursuant to Section 9.4
of the Credit Agreement, to the payment of the Secured Obligations in accordance with Lender’s sole discretion. To the extent
permitted by applicable law, each Grantor waives all claims, damages and demands it may acquire against Lender arising out of the
exercise by it of any rights hereunder. If any notice of a proposed sale or other disposition of Collateral shall be required by
law, such notice shall be deemed reasonable and proper if given at least ten (10) days before such sale or other disposition.


 


6.7            Registration
Rights. Each Grantor recognizes that Lender may be unable to effect a public sale of any or all the Pledged Equity, by
reason of certain prohibitions contained in the Securities Act and applicable state securities laws or otherwise, and may be
compelled to resort to one or more private sales thereof to a restricted group of purchasers which will be obliged to agree,
among other things, to acquire such securities for their own account for investment and not with a view to the distribution
or resale thereof. Each Grantor acknowledges and agrees that any such private sale may result in prices and other terms less
favorable than if such sale were a public sale. Lender shall be under no obligation to delay a sale of any of the Pledged
Equity for the period of time necessary to permit the Issuer thereof
to register such securities or other interests for public sale under the Securities Act, or under applicable state securities laws,
even if such Issuer would agree to do so.


 




    -20- 


     


    

 


6.8            Waiver;
Deficiency. Each Grantor waives, to the maximum extent permitted by applicable law, and agrees not to assert any rights or
privileges which it may acquire under Section 9-626 of the UCC. Each Grantor shall remain liable for any deficiency if the
proceeds of any sale or other disposition of the Collateral are insufficient for the Secured Obligations to be Paid in Full and
the reasonable and documented fees and out-of-pocket disbursements of any attorneys employed by Lender to collect such deficiency
(to the extent reimbursable under the Credit Agreement).


 


		7.	Lender as Attorney-in Fact, etc. and its Duties.



 


7.1            Lender’s
Appointment as Attorney-in-Fact, etc.


 


(a)            WHILE
AN EVENT OF DEFAULT EXISTS, EACH GRANTOR HEREBY IRREVOCABLY CONSTITUTES AND APPOINTS LENDER AND ANY OFFICER OR AGENT THEREOF, WITH
FULL POWER OF SUBSTITUTION, AS ITS TRUE AND LAWFUL ATTORNEY-IN-FACT AND PROXY WITH FULL IRREVOCABLE POWER AND AUTHORITY IN THE
PLACE AND STEAD OF SUCH GRANTOR AND IN THE NAME OF SUCH GRANTOR OR IN ITS OWN NAME, FOR THE PURPOSE OF CARRYING OUT THE TERMS OF
THIS AGREEMENT, TO TAKE ANY AND ALL APPROPRIATE ACTION AND TO EXECUTE ANY AND ALL DOCUMENTS AND INSTRUMENTS WHICH MAY BE NECESSARY
OR DESIRABLE TO ACCOMPLISH THE PURPOSES OF THIS AGREEMENT OR TAKE ANY OTHER REMEDIAL ACTION WITH RESPECT TO COLLATERAL OTHERWISE
DESCRIBED IN THIS AGREEMENT, THE CREDIT AGREEMENT OR THE OTHER LOAN DOCUMENTS, and, without limiting the generality of the foregoing,
each Grantor hereby gives Lender the power and right, on behalf of and at the expense of such Grantor, without notice to or assent
by such Grantor, to do any or all of the following:


 


(i)            in
the name of such Grantor or its own name, or otherwise, take possession of     and
indorse and collect any checks, drafts, notes, acceptances or other instruments for the payment of moneys due under any Receivable
or with respect to any other Collateral and file any claim or take any other action or proceeding in any court of law or equity
or otherwise deemed appropriate by Lender for the purpose of collecting any and all such moneys due under any Receivable or with
respect to any other Collateral whenever payable;


 


(ii)           in
the case of any Intellectual Property owned by such Grantor, execute and deliver, and have recorded, any and all agreements, instruments,
documents and papers as Lender may request to evidence Lender’s security interest in such Intellectual Property and the goodwill
and general intangibles of such Grantor relating thereto or represented thereby;


 




    -21- 


     


    

 


(iii)           discharge
Liens levied or placed on or threatened against the Collateral, and effect any repairs or insurance called for by the terms of
this Agreement and pay all or any part of the premiums therefor and the costs thereof;


 


(iv)           execute,
in connection with any sale provided for in Section 6.6 or 6.7, any indorsements, assignments or other instruments
of conveyance or transfer with respect to the Collateral;


 


(v)           (1) vote
the Investment Property in any manner Lender deems advisable for or against all matters submitted or which may be submitted to
a vote of shareholders, partners or members, as the case may be, (2) transfer and register in its name or in the name of its
nominee the whole or any part of the Investment Property, (3) receive and collect any dividend or other payment or distribution
in respect of or in exchange for the Investment Property and (4) take all such other actions with respect to Investment Properly
authorized under Section 6.3 or 6.7 of this Agreement or otherwise authorized by this Agreement or the Other
Loan Documents; and


 


(vi)          (1) direct
any party liable for any payment under any of the Collateral to make payment of any and all moneys due or to become due thereunder
directly to Lender or as Lender shall direct; (2) ask or demand for, collect, and receive payment of and receipt for, any
and all moneys, claims and other amounts due or to become due at any time in respect of or arising out of any Collateral; (3) sign
and indorse any invoices, freight or express bills, bills of lading, storage or warehouse receipts, drafts against debtors, assignments,
verifications, notices and other documents in connection with any of the Collateral; (4) commence and prosecute any suits,
actions or proceedings at law or in equity in any court of competent jurisdiction to collect the Collateral or any portion thereof
and to enforce any other right in respect of any Collateral; (5) defend any suit, action or proceeding brought against such
Grantor with respect to any Collateral; (6) settle, compromise or adjust any such suit, action or proceeding and, in connection
therewith, give such discharges or releases as Lender may deem appropriate; (7) assign any Copyright, Patent or Trademark
or other Intellectual Property, throughout the world for such term or terms, on such conditions, and in such manner, as Lender
shall in its sole discretion determine; (8) vote any right or interest with respect to any Investment Property; (9) order
good standing certificates and conduct lien searches in respect of such jurisdictions or offices as Lender may deem appropriate;
and (10) generally sell, transfer, pledge and make any agreement with respect to or otherwise deal with any of the Collateral
as fully and completely as though Lender were the absolute owner thereof for all purposes, and do, at Lender’s option and
such Grantor’s expense, at any time, or from time to time, all acts and things which Lender deems necessary to protect, preserve
or realize upon the Collateral and Lender’s security interests therein and to effect the intent of this Agreement, all as
fully and effectively as such Grantor might do.


 






    -22- 


     


    

 


THE
POWER-OF-ATTORNEY AND PROXY GRANTED HEREBY IS COUPLED WITH AN INTEREST AND SHALL BE VALID AND IRREVOCABLE UNTIL (X) THE
SECURED OBLIGATIONS HAVE BEEN INDEFEASIBLY PAID IN FULL IN ACCORDANCE WITH THE PROVISIONS OF THE CREDIT AGREEMENT, THE OTHER
LOAN DOCUMENTS OR ANY OTHER GOVERNING DOCUMENTATION, AS APPLICABLE AND (Y) LENDER HAS NO FURTHER OBLIGATIONS UNDER THE
CREDIT AGREEMENT, THE OTHER LOAN DOCUMENTS OR ANY OTHER DOCUMENTS (IT BEING UNDERSTOOD THAT ANY SUCH SECURED OBLIGATIONS WILL
CONTINUE TO BE EFFECTIVE OR AUTOMATICALLY REINSTATED IF AT ANY TIME PAYMENT, IN WHOLE OR IN PART, OF ANY OF THE SECURED
OBLIGATIONS IS RESCINDED OR MUST OTHERWISE BE RESTORED OR RETURNED BY LENDER FOR ANY REASON, INCLUDING AS A PREFERENCE,
FRAUDULENT CONVEYANCE OR OTHERWISE UNDER ANY BANKRUPTCY, INSOLVENCY OR SIMILAR LAW, ALL AS THOUGH SUCH PAYMENT HAD NOT
BEEN MADE; IT BEING FURTHER UNDERSTOOD THAT IN THE EVENT PAYMENT OF ALL OR ANY PART OF THE SECURED OBLIGATIONS IS
RESCINDED OR MUST BE RESTORED OR RETURNED, ALL REASONABLE OUT-OF-POCKET COSTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION,
REASONABLE ATTORNEYS’ FEES AND DISBURSEMENTS) INCURRED BY LENDER IN DEFENDING AND ENFORCING SUCH REINSTATEMENT SHALL BE
DEEMED TO BE INCLUDED AS A PART OF THE SECURED OBLIGATIONS) (THE OCCURRENCE OF THE FOREGOING,
 “TERMINATION”)). SUCH APPOINTMENT OF LENDER AS PROXY AND ATTORNEY-IN-FACT SHALL BE VALID AND IRREVOCABLE AS
PROVIDED HEREIN NOTWITHSTANDING ANY LIMITATIONS TO THE CONTRARY SET FORTH IN THE CERTIFICATE OF INCORPORATION, CERTIFICATE OF
FORMATION, ARTICLES OF ORGANIZATION, BY-LAWS, LIMITED LIABILITY COMPANY AGREEMENTS OR OTHER ORGANIZATIONAL DOCUMENTS OF ANY
GRANTOR OR ISSUER OR CORPORATE OR LIMITED LIABILITY COMPANY LAW (OR SIMILAR LAW), AS APPLICABLE, OF THE STATE OF DELAWARE, OR
ANY OTHER STATE OF ORGANIZATION OF ANY GRANTOR OR ISSUER. SUCH PROXY SHALL BE EFFECTIVE AUTOMATICALLY AND WITHOUT THE
NECESSITY OF ANY ACTION (INCLUDING ANY TRANSFER OF ANY INVESTMENT PROPERTY ON THE RECORD BOOKS OF THE ISSUER THEREOF) BY ANY
PERSON (INCLUDING THE ISSUER OF THE INVESTMENT PROPERTY OR ANY OFFICER OR AGENT THEREOF). IN ORDER TO FURTHER AFFECT THE
TRANSFER OF RIGHTS WITH RESPECT TO PLEDGED EQUITY SET FORTH IN SECTION 6.3, SECTION 6.7 OR ANY OTHER
PROVISION OF THIS AGREEMENT IN FAVOR OF LENDER, LENDER SHALL HAVE THE RIGHT, UPON THE OCCURRENCE AND DURING THE CONTINUANCE
OF AN EVENT OF DEFAULT, TO PRESENT TO ANY ISSUER AN IRREVOCABLE PROXY AND/OR REGISTRATION PAGE.


 


Upon exercise of the
proxy set forth herein, all prior proxies given by any Grantor with respect to any of the Investment Property (other than to Lender
or otherwise pursuant to the Loan Documents) are hereby revoked, and no subsequent proxies (other than to Lender or otherwise under
the Loan Documents) will be given with respect to any of the Investment Property. Lender, as proxy, will be empowered and may exercise
the irrevocable proxy to vote the Investment Property at any and all times, including but not limited to, at any meeting of shareholders,
partners or members, as the case may be, however called, and at any adjournment thereof, or in any action by written consent, and
may waive any notice otherwise required in connection therewith. To the fullest extent permitted by applicable law, Lender shall
have no agency, fiduciary or other implied duties to any Grantor or any other party when acting in its capacity as such attorney-in-fact
or proxy. Each Grantor hereby waives and releases any claims that it may otherwise have against Lender with respect to any breach
or alleged breach of any such agency, fiduciary or other duty. Notwithstanding the foregoing grant of a power of attorney and proxy,
Lender shall have no duty to exercise any such right or to preserve
the same and shall not be liable for any failure to do so or for any delay in doing so.


 




    -23- 


     


    

 


Anything in this Section 7.1(a) at
to the contrary notwithstanding, Lender agrees that it will not exercise any rights under the power of attorney provided for in
this Section 7.1(a) unless an Event of Default shall have occurred and be continuing.


 


(b)           If
any Grantor fails to perform or comply with any of its agreements contained herein, Lender, at its option, but without any obligation
so to do, may perform or comply, or otherwise cause performance or compliance, with such agreement.


 


(c)            Each
Grantor hereby ratifies all that such attorneys shall lawfully do or cause to be done by virtue hereof. All powers, authorizations
and agencies contained in this Agreement are coupled with an interest and are irrevocable until this Agreement is terminated and
the security interests created hereby are released.


 


7.2           Duty
of Lender. Lender’s sole duty with respect to the custody, safekeeping and physical preservation of the Collateral in
its possession shall be to deal with it in the same manner as Lender deals with similar property for its own account. Lender nor
any of its officers, directors, employees or agents shall be liable for any failure to demand, collect or realize upon any of the
Collateral or for any delay in doing so or shall be under any obligation to sell or otherwise dispose of any Collateral upon the
request of any Grantor or any other Person or to take any other action whatsoever with regard to the Collateral or any part thereof.
The powers conferred on Lender hereunder are solely to protect Lender’s interests in the Collateral and shall not impose
any duty upon Lender to exercise any such powers. Lender shall be accountable only for amounts that it actually receives as a result
of the exercise of such powers, and neither it nor any of its officers, directors, employees or agents shall be responsible to
any Grantor for any act or failure to act hereunder.


 


7.3           Photocopy
of this Agreement. A photographic or other reproduction of this Agreement shall be sufficient as a financing statement or other
filing or recording document or instrument for filing or recording in any jurisdiction.


 


		8.	Miscellaneous.



 


8.1           Amendments
in Writing. None of the terms or provisions of this Agreement may be waived, amended, supplemented or otherwise modified except
in accordance with Section 9.1 of the Credit Agreement.


 


8.2           Notices.
All notices, requests and demands to or upon Agent or any Grantor hereunder shall be effected in the manner provided for in Section 9.2
of the Credit Agreement and each such notice, request or demand to or upon any Guarantor shall be addressed to such Guarantor in
care of Borrower at Borrower’s notice address set forth on Schedule 1.


 






    -24- 


     


    

 


8.3           Indemnification
by Grantors. Each Grantor hereby agrees, on a joint and several basis, to indemnify, exonerate and hold Lender and each
of the officers, directors, employees, Affiliates and agents of Lender (each a “Lender Party”), except to
the extent resulting from gross negligence or willful misconduct of such Lender Party as determined by a court of competent jurisdiction,
free and harmless from and against any and all actions, causes of action, suits, losses, liabilities, damages and expenses,
including Legal Costs (collectively, the “Indemnified Liabilities”), incurred by Lender Parties or any of
them as a result of, or arising out of, or relating to (a) any tender offer, merger, purchase of equity interests,
purchase of assets or other similar transaction financed or proposed to be financed in whole or in part, directly or
indirectly, with the proceeds of any of the Loans, (b) the use, handling, release, emission, discharge, transportation,
storage, treatment or disposal of any hazardous substance at any properly owned or leased by any Grantor or any Subsidiary,
(c) any violation of any Environmental Laws with respect to conditions at any property owned or leased by any Grantor or
any Subsidiary or the operations conducted thereon, (d) the investigation, cleanup or remediation of offsite locations
at which any Grantor or any Subsidiary or their respective predecessors are alleged to have directly or indirectly disposed
of hazardous substances, or (e) the execution, delivery, performance or enforcement of this Agreement or any other Loan
Document by any Lender Party, except to the extent any such Indemnified Liabilities result from the applicable Lender
Party’s or its officers, directors, employees, agents or Affiliates gross negligence, bad faith or willful misconduct
as determined by a court of competent jurisdiction. If and to the extent that the foregoing undertaking may be unenforceable
for any reason, each Grantor hereby agrees to make the maximum contribution to the payment and satisfaction of each of the
Indemnified Liabilities which is permissible under applicable law. The agreements in this Section 8.3 shall
survive repayment of the Secured Obligations (and termination of all commitments thereunder), any foreclosure under, or any
modification, release or discharge of, any or all of the Collateral Documents and termination of this Agreement.


 


8.4           Enforcement
Expenses.


 


(a)            Each
Grantor agrees, on a joint and several basis, to pay or reimburse on demand Lender for all reasonable out-of-pocket costs and expenses
(including Legal Costs) incurred in collecting against any Guarantor under the guarantee contained in Section 2 or
otherwise enforcing or preserving any rights under this Agreement and the other Loan Documents in accordance with the terms of
Section 9.4 of the Credit Agreement.


 


(b)           Each
Grantor agrees to pay, and to hold Lender harmless from, any and all liabilities with respect to, or resulting from any delay in
paying, any and all stamp, excise, sales or other taxes which may be payable or determined to be payable with respect to any of
the Collateral or in connection with any of the transactions contemplated by this Agreement.


 


(c)            The
agreements in this Section 8.4 shall survive repayment of the Secured Obligations (and termination of all commitments
thereunder), any foreclosure under, or any modification, release or discharge of, any or all of the Collateral Documents and termination
of this Agreement.


 


8.5           Captions.
Captions used in this Agreement are for convenience only and shall not affect the construction of this Agreement.


 


8.6           Nature
of Remedies. All Secured Obligations of each Grantor and rights of Lender expressed herein or in any other Loan Document
shall be in addition to and not in limitation of those provided by applicable law. No failure to exercise and no delay in
exercising, on the part of Lender, any right, remedy, power or privilege hereunder, shall operate as a waiver thereof;
nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or privilege.


 






    -25- 


     


    

 


8.7           Counterparts.
This Agreement may be executed in any number of counterparts and by the different parties hereto on separate counterparts and each
such counterpart shall be deemed to be an original, but all such counterparts shall together constitute but one and the same Agreement.
Receipt by facsimile, emailed .pdf file or other similar form of electronic transmission of any executed signature page to
this Agreement or any other Loan Document shall constitute effective delivery of such signature page.


 


8.8           Severability.
The illegality or unenforceability of any provision of this Agreement or any instrument or agreement required hereunder shall not
in any way affect or impair the legality or enforceability of the remaining provisions of this Agreement or any instrument or agreement
required hereunder.


 


8.9            Entire
Agreement. This Agreement, together with the other Loan Documents, embodies the entire agreement and understanding among the
parties hereto and supersedes all prior or contemporaneous agreements and understandings of such Persons, verbal or written, relating
to the subject matter hereof and thereof and any prior arrangements made with respect to the payment by any Grantor of (or any
indemnification for) any fees, costs or expenses payable to or incurred (or to be incurred) by or on behalf of Lender.


 


8.10         Successors;
Assigns. This Agreement shall be binding upon Grantors and Lender and their respective successors and permitted assigns, and
shall inure to the benefit of Grantors and Lender and the successors and permitted assigns of Lender. No other Person shall be
a direct or indirect legal beneficiary of, or have any direct or indirect cause of action or claim in connection with, this Agreement
or any of the other Loan Documents. No Grantor may assign or transfer any of its rights or Obligations under this Agreement without
the prior written consent of Lender.


 


8.11         Governing
Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD
TO CONFLICT OF LAWS PRINCIPLES.


 


8.12         Forum
Selection; Consent to Jurisdiction. ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH THIS AGREEMENT,
SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY IN THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY OR IN THE UNITED
STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK; PROVIDED THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL
OR OTHER PROPERTY MAY BE BROUGHT, AT LENDER’S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE SUCH COLLATERAL OR
OTHER PROPERTY MAY BE FOUND. EACH GRANTOR AND LENDER HEREBY EXPRESSLY AND IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS
OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE. EACH GRANTOR AND LENDER FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED
MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF NEW YORK. EACH GRANTOR AND LENDER HEREBY EXPRESSLY
AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING
OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT
IN AN INCONVENIENT FORUM.


 




    -26- 


     


    

 


8.13         Waiver
of Jury Trial. EACH OF GRANTOR AND LENDER HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE
OR DEFEND ANY RIGHTS UNDER THIS AGREEMENT AND ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN
THE FUTURE BE DELIVERED IN CONNECTION HEREWITH AND AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND
NOT BEFORE A JURY.


 


8.14         Set-off.
Each Grantor agrees that Lender has all rights of set-off provided by applicable law, and in addition thereto, each Grantor agrees
that at any time any Event of Default has occurred and is continuing, Lender may apply to the payment of any Secured Obligations,
whether or not then due, any and all balances, credits, deposits, accounts or moneys of such Grantor then or thereafter with Lender
(other than balances in Exempt Accounts that do not constitute Exempt Accounts pursuant to clause (a)(iv) of the definition
thereof). Lender shall promptly provide subsequent notice of any such set-off to the applicable Grantor, provided that the failure
to provide such notice shall not affect the validity of such set-off.


 


8.15         Acknowledgements.
Each Grantor hereby acknowledges that:


 


(a)            it
has been advised by counsel in the negotiation, execution and delivery of this Agreement and the other Loan Documents to which
it is a party;


 


(b)           Lender
has no fiduciary relationship with or duty to any Grantor arising out of or in connection with this Agreement or any of the other
Loan Documents, and the relationship between the Grantors, on the one hand, and Lender, on the other hand, in connection herewith
or therewith is solely that of debtor and creditor; and


 


(c)            no
joint venture is created hereby or by the other Loan Documents or otherwise exists by virtue of the transactions contemplated hereby
by Grantors and Lender.


 


8.16         Additional
Grantors. Each Loan Party that is required to become a party to this Agreement pursuant to Section 6.7 of the Credit Agreement
shall become a Grantor for all purposes of this Agreement upon execution and delivery by such Loan Party of a joinder agreement
in a form reasonably satisfactory to Lender in its sole discretion.


 






    -27- 


     


    

 


8.17            Releases.


 


(a)            At
such time as the Secured Obligations have been Paid in Full, the Collateral shall be automatically released from the Liens
created hereby, and this Agreement and all obligations (other than those expressly stated to survive such termination)
of Lender and each Grantor hereunder shall terminate automatically, all without delivery of any instrument or performance of
any act by any party, and all rights to the Collateral shall revert to the Grantors. At the request and sole expense of any
Grantor following any such termination, Lender shall promptly deliver to the Grantors any Collateral held by Lender
hereunder, and execute and deliver to the Grantors such filings and documents (including authorization to file applicable UCC
termination statements) as the Grantors shall reasonably request to evidence such termination.


 


(b)           If
any of the Collateral shall be sold, transferred or otherwise disposed of by any Grantor in a transaction permitted by the Credit
Agreement, then the Lender’s Lien on such Collateral pursuant to this Agreement and the other Loan Documents shall automatically
terminate and Lender, at the request and sole expense of such Grantor, shall execute and deliver to such Grantor all releases or
other documents reasonably necessary or desirable to evidence the release of the Liens created hereby on such Collateral, so long
as Borrower delivers to Lender a certificate of an officer of Borrower as to such sale or disposition being made in compliance
with the Loan Documents. A Subsidiary Guarantor shall be automatically released from its obligations hereunder in the event that
all the equity interests of such Subsidiary Guarantor shall be sold, transferred or otherwise disposed of in a transaction permitted
by the Credit Agreement; provided that Borrower shall have delivered to Lender, with reasonable notice prior to the date
of the proposed release, a written request for release identifying the relevant Subsidiary Guarantor and the terms of the sale
or other disposition in reasonable detail, including the price thereof and any expenses in connection therewith, and, to the extent
that Lender is requested to confirm such release or execute any documents in connection therewith, Borrower shall provide Lender
with a certification by Borrower stating that such transaction is in compliance with the Credit Agreement and the other Loan Documents
and any of the foregoing shall be at the sole expense of Borrower.


 


8.18            Obligations
and Liens Absolute and Unconditional. Each Grantor understands and agrees that the obligations of each Grantor under this Agreement
shall be construed as a continuing, absolute and unconditional without regard to (a) the validity or enforceability of any
Loan Document, any of the Secured Obligations or any other collateral security therefor or guaranty or right of offset with respect
thereto at any time or from time to time held by Lender, (b) any defense, set-off or counterclaim (other than a defense of
payment or performance) which may at any time be available to or be asserted by any Grantor or any other Person against Lender,
or (c) any other circumstance whatsoever (with or without notice to or knowledge of any Grantor) which constitutes, or might
be construed to constitute, an equitable or legal discharge of any Grantor for the Secured Obligations, in bankruptcy or in any
other instance (other than a defense of payment or performance). When making any demand hereunder or otherwise pursuing its rights
and remedies hereunder against any Grantor, Lender may, but shall be under no obligation to, make a similar demand on or otherwise
pursue such rights and remedies as it may have against any other Grantor or any other Person or against any collateral security
or guaranty for the Secured Obligations or any right of offset with respect thereto, and any failure by Lender to make any such
demand, to pursue such other rights or remedies or to collect any payments from any other Grantor or any other Person or to realize
upon any such collateral security or guaranty or to exercise any such right of offset, or any release of any other Grantor or any
other Person or any such collateral security, guaranty or right of offset, shall not relieve any Grantor of any obligation or liability
hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of Lender
against any Grantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedings.


 




    -28- 


     


    

 


8.19            Reinstatement.
This Agreement shall remain in full force and effect and continue to be effective should any petition be filed by or against Grantor
or any Issuer for liquidation or reorganization, should Grantor or any Issuer become insolvent or make an assignment for the benefit
of creditors or should a receiver or trustee be appointed for all or any significant part of Grantor’s or any Issuer’s
assets, and shall continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the
Secured Obligations, or any part thereof, is, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be
restored or returned by any obligee of the Secured Obligations, whether as a ”voidable preference”, ”fraudulent
conveyance”, or otherwise, all as though such payment or performance had not been made. In the event that any payment, or
any part thereof, is rescinded, reduced, restored or returned, the Secured Obligations shall be reinstated and deemed reduced only
by such amount paid and not so rescinded, reduced, restored or returned.


 


[signature page follows]


 




    -29- 


     


    

 


Each of the undersigned
has caused this Guarantee and Collateral Agreement to be duly executed and delivered as of the date first above written.


 


	 	RESHAPE LIFESCIENCES INC., a Delaware corporation, as Grantor



 





	 	By:	/s/ Barton P. Bandy
	 	Name:	Barton P. Bandy
	 	Title:	CEO



 




    -30- 


     


    

 



 


	 	RESHAPE MEDICAL LLC, a Delaware limited liability company, as Grantor
	 	 	 
	 	By:	/s/ Barton P. Bandy
	 	Name:	Barton P. Bandy
	 	Title: 	CEO


 



    -31-


     


    

 


	 	ARMISTICE CAPITAL MASTER FUND LTD., as Lender
	 	 
	 	By:	/s/ Steven Boyd
	 	Name:	Steven Boyd
	 	Title:	CIO of Armistice Capital, LLC, the Investment
    Manager



 






    -32-


     


    

 


SCHEDULE 1


 


TO


 


COLLATERAL AND SECURITY AGREEMENT


 


Pledged Equity and Pledged Notes


 


100% of the membership interests of ReShape Medical LLC, a Delaware
limited liability company


 






    Schedule 1-1


     


    

 


SCHEDULE 2


 


TO


 


COLLATERAL AND SECURITY AGREEMENT


 


Perfected First Priority Liens


 


None


 






    Schedule 2-1


     


    

 


SCHEDULE 3


 


TO


 


GUARANTEE AND COLLATERAL AGREEMENT


 


Grantor Information


 


	Name
    of
 Grantor	 	Jurisdiction
    of
 Organization	 	Office Locations	 	Federal EIN	 	Organization

    Number	 
	ReShape Lifesciences Inc.	 	Delaware	 	1001 Calle Amanecer 
San Clemente, CA 92673	 	48-1293684	 	 	3832130	 
	ReShape Medical LLC	 	Delaware	 	1001 Calle Amanecer 
San Clemente, CA 92673	 	82-3076787	 	 	6561638	 



 



    Schedule 3-1


     


    

 


SCHEDULE 4


TO


GUARANTEE AND COLLATERAL AGREEMENT


 


Locations of Equipment and Inventory


 


	Name of Grantor	Locations of Equipment and Inventory
	 	 
	ReShape  Lifesciences Inc.	
        1001 Calle Amanecer

         

        San Clemente, CA 92673

         

        This is a leased facility. Landlord’s notice address is:
        San Clemente Holdings, LLC

         

        P.O. Box 74268, San Clemente, CA 92673

         

	ReShape Medical LLC	
        1001 Calle Amanecer

         

        San Clemente, CA 92673




 






    Schedule 4-1


     


    

 


SCHEDULE 5


 


TO


 


GUARANTEE AND COLLATERAL AGREEMENT


 


Patents and Registered IP


 


See attached for the list of Borrower’s
patents and patent applications.


 


Also, in
the United States the Borrower has registered trademarks for LAP-BAND®, LAP-BAND AP®, LAP BAND SYSTEM®, RAPIDPORT®,
RESHAPE® and RESHAPE MEDICAL® and trademark applications for RESHAPE VEST, and RESHAPE LIFESCIENCES.


 






    Schedule 5-1


     


    

 


	DOCKET

                                                                                NO.
	ASSIGNEE	TITLE	INVENTOR	
        SERIAL NO.

        FILING 

DATE
	
        PATENT 

NO.

        ISSUE 

DATE
	STATUS
	
        74660-00100

        US Utility
	Reshape Lifesciences, Inc.	Method and Apparatus for Gastric Restriction of the Stomach to Treat Obesity	Raj Nihalani	
        12/328,979

        12/5/2008
	
        8,357,081

        1/22/2013
	
        Issued

        MaintenanceFee Due 7/22/2020

	
        74660-00117

        US Utility
	Reshape Lifesciences, Inc.	
        Gastric Restriction Devices with
        Fillable Chambers and Ablation Means for Treating

        Obesity
	Raj Nihalani	
        12/474,254

        5/28/2009
	
        8,911,346

        12/16/2014
	
        Issued

        MaintenanceFee Due 6/16/2022

	
        74660-00138

        US Utility
	ReShape Lifesciences, Inc.	Gastric Restriction Devices for Treating Obesity	Raj Nihalani	
        14/571,144

        12/15/2014
	
        10,010,441

        7/3/20189
	
        Issued

        MaintenanceFee Due 1/3/2022

	
        74660-00139

        US Utility
	ReShape Lifesciences, Inc.	Gastric Restriction Devices for Treating Obesity	Raj Nihalani	
        16/020,423

        6/27/2018
	 	
        Pending

        AwaitingFirst Office Action

	
        74660-00193

        Australia DIV
	Onciomed, Inc.	Gastric Restriction Devices with Fillable Chambers and Ablation Means for Treating Obesity	Raj Nihalani	
        2014201234

        3/5/2014
	
        2014201234

        3/31/2016
	
        Pending

        AnnuityDue 12/2/2020

	
        74660-00103

        Canada
	Onciomed, Inc.	Gastric Restriction Devices with Fillable Chambers and Ablation Means for Treating Obesity	Raj Nihalani	
        2745902

        12/2/2009
	
        2745902

        4/19/2016
	
        Issued

        AnnuityDue 12/02/2020



 






    Schedule 5-6


     


    

 


	DOCKET 

NO.	ASSIGNEE	TITLE	INVENTOR	
        SERIAL NO.

        FILING 

DATE
	
        PATENT 

NO.

        ISSUE 

DATE
	STATUS
	
        74660-00105

        Europe
	Onciomed, Inc.	Gastric Restriction Devices with Fillable Chambers and Ablation Means for Treating Obesity	Raj Nihalani	
        09831063.4

        12/2/2009
	
        2370003

        04/17/2019
	
        Pending

        AnnuityDue 12/2/2020

        (validated in DE, FR & UK)

	
        74660-00109

        Israel
	Onciomed, Inc.	Gastric Restriction Devices with Fillable Chambers and Ablation Means for Treating Obesity	Raj Nihalani	
        213388

        12/2/2009
	
        213388

        12/1/2014
	
        Issued

        RenewalDue 12/2/2019

	
        74660-00128

        Brazil
	Onciomed, Inc.	Gastric Restriction Devices with Fillable Chambers and Ablation Means for Treating Obesity	Raj Nihalani	PI0922794-6 12/2/2009	 	
        Pending

        AnnuityDue 12/2/2020

	
        74660-00134

        China
	Onciomed, Inc.	Gastric Restriction Devices with Fillable Chambers and Ablation Means for Treating Obesity	Raj Nihalani	
        20098015623

        4.2

        12/2/2009
	
        102307530

        11/19/2014
	
        Issued

        AnnuityDue 12/2/2020

	
        74660-00137

        China DIV
	Onciomed, Inc.	Gastric Restriction Devices with Fillable Chambers and Ablation Means for Treating Obesity	Raj Nihalani	
        20141053862

        7.2

        12/2/2009
	
        ZL201410538 627.2

        3/13/2018
	
        Issued

        AnnuityDue 12/2/2020

	
        74660-00156

        India
	Onciomed, Inc.	Gastric Restriction Devices with Fillable Chambers and Ablation Means for Treating Obesity	Raj Nihalani	
        1381/MUMN P/2011

        12/2/2009
	 	Pending


 






    Schedule 5-7


     


    

 


	DOCKET

                                                                                NO.
	ASSIGNEE	TITLE	INVENTOR	
        SERIAL NO.

        FILING 

DATE
	
        PATENT

 NO.

        ISSUE 

DATE
	STATUS
	
        74660-00616

        PCT
	ReShape Lifesciences, Inc.	Gastric Vest for Restriction of the Stomach to Treat Obesity	Raj Nihalani Reynz Delina	
        PCT/US2018/ 054434

        10/4/2018
	 	(Awaiting Client Final Inst on Country List) Pending 30 Month National Phase Applications Due 4/4/2020
	
        74660-00600

        US
	ReShape Lifesciences, Inc.	Gastric Vest for Restriction of the Stomach to Treat Obesity	Raj Nihalani Reynz Delina	
        16/326,607

        2/19/2019
	 	
        Pending

        AwaitingFirst Office Action

	
        74660-06500

        US
	ApolloEndosurgery US, Inc.	Fatigue-ResistantGastric Banding Device	Janel Birk	
        10/492,784

        04/18/2005
	
        7,811,298

        10/12/2010
	
        3rd
        MFee Due

        04/12/2022

	
        74660-06517

        US
	ApolloEndosurgery US, Inc.	Fatigue-ResistantGastric Banding Device	Janel Birk	
        12/851,437

        08/05/2010
	
        8,382,780

        02/26/2013
	
        2nd
        MFee Due

        08/26/2020

	
        74660-06505

        EP
	Apollo Endosurgery, Inc.	Fatigue-ResistantGastric Banding Device	Janel Birk	
        10001759

        08/26/2003
	
        2181655

        07/12/2016
	AnnuitiesDue 08/26/2020
	 	 	 	 	 	 	(validated in DE, ES, FR, GB)
	 	 	 	 	 	 	(dropped in DE in 2019)
	
        74660-06600

        US
	ApolloEndosurgery US, Inc.	Releasably-Securable One- Piece Adjustable Gastric Band	Janel A. Birk	
        10/587,099

        12/04/2008
	
        8,900,117

        12/02/2014
	2nd MFee Due 06/02/2022


 






    Schedule 5-8


     


    

 


	DOCKET

                                                                                NO.
	ASSIGNEE	TITLE	INVENTOR	
        SERIAL NO.

        FILING

 DATE
	
        PATENT 

NO.

        ISSUE 

DATE
	STATUS
	
        74660-06613

        Mexico
	Allergan, Inc.	Releasably-Securable One- Piece Adjustable Gastric Band	Janel A. Birk	2010/003962	305609	Annuity Due January, 2022
	
        74660-06603

        Canada DIV
	Apollo Endosurgery, Inc.	Releasably-Securable One- Piece Adjustable Gastric Band	Janel A. Birk	
        2567161

        07/14/2006
	
        2567161

        03/13/2012
	AnnuityDue 7/21/2021
	
        74660-06605

        Europe
	Apollo Endosurgery, Inc.	Releasably-Securable One- Piece Adjustable Gastric Band	Janel A. Birk	
        2005705872

        07/21/2006
	
        1706044

        10/05/2011
	
        Annuities Due 01/21/2021

        For ES, FR, GB, & IT

        (Validated in AT, BE, CH/LI,
        DE, ES, FR, GB, IE,

        IT, NL, PT, PL)

        Abandoned in BE, CH/LI, DE, IE,
        NL, PT

	
        74660-06693

        Europe DIV
	Apollo Endosurgery, Inc.	Releasably-Securable One- Piece Adjustable Gastric Band	Janel A. Birk	
        2011182494

        01/21/2005
	
        2399528

        01/09/2013
	
        Annuities Due 01/21/2021

        For ES, FR, GB, & IT

        (Validated in AT, BE, CH/LI,
        DE, ES, FR, GB, IE,

        IT, NL, PT)

        Abandoned in BE, CH/LI, DE, IE,




 






    Schedule 5-9


     


    

 


	DOCKET

                                                                                NO.
	ASSIGNEE	TITLE	INVENTOR	
        SERIAL NO.

        FILING 

DATE
	
        PATENT 

NO.

        ISSUE 

DATE
	STATUS
	 	 	 	 	 	 	NL, PT
	
        74660-06601

        Australia
	Apollo Endosurgery, Inc.	Releasably-Securable One- Piece Adjustable Gastric Band	Janel A. Birk	
        2005208721

        08/22/2006
	
        2005208721

        01/06/2011
	Annuity Due 01/21/2021
	
        74660-06622

        Mexico
	Allergan, Inc.	Releasably-Securable One- Piece Adjustable Gastric Band	Janel A. Birk	
        2006/008256

        07/20/2006
	
        275168

        04/14/2010
	Annuity Due January, 2021
	74660-06700	ApolloEndosurgery US,	ImplantableDevice	 	10/562,964	7,762,998	3rd MFee Due
	US	Inc.	FasteningSystemand Methods of Use	12/30/2005	07/27/2010	01/27/2021
	74660-06717	ApolloEndosurgery US,	ImplantableDevice	 	12/483,980	7,947,011	3rd MFee Due
	US CON	Inc.	FasteningSystemand Methods of Use	06/12/2009	05/24/2011	11/24/2022
	74660-06736	ApolloEndosurgery US,	ImplantableDevice	 	12/488,266	7,972,315	3rd MFee Due
	US CON2	Inc.	FasteningSystemand Methods of Use	06/19/2009	07/05/2011	01/05/2023
	
        74660-06738

        US CON3
	ApolloEndosurgery US, Inc.	Methods of Implanting an Injection Port	 	
        12/488,364

        06/19/2009
	
        7,811,275

        10/12/2010
	
        3rd
        MFee Due

        04/12/2022

	
        74660-06739

        US CON4
	Reshape Lifesciences Inc.	Implantable Injection Port	Janel A. Birk; Frederick L. Coe; Robert E. Hoyt	
        12/488/421

        06/19/2009
	
        8,007,479

        08/30/2011
	3rdMFeeDue 02/28/2023


 






    Schedule 5-10


     


    

 


	DOCKET

                                                                                NO.
	ASSIGNEE	TITLE	INVENTOR	
        SERIAL NO.

        FILING 

DATE
	
        PATENT 

NO.

        ISSUE 

DATE
	STATUS
	
        74660-06793

        US CON5
	Reshape Lifesciences Inc.	ImplantableDevice Fastening System and Methods of Use	Janel A. Birk; Frederick L. Coe; Robert E. Hoyt	
        12/488,496

        06/19/2009
	
        8,007,465

        08/30/2011
	4rd MFee Fee Due 08/28/2023
	74660-06794	ApolloEndosurgery US,	ImplantableDevice	 	12/548/703	7,892,200	3rd MFee Due
	US CON6	Inc.	FasteningSystemand Methods of Use	08/27/2009	02/22/2011	08/22/2022
	
        74660-06795

        US CIP
	ApolloEndosurgery US, Inc.	Methods of Operating an Implantable Injection Port System	
        Janel A. Birk,

        FrederickL. Coe,
	
        12/607,283

        10/28/2009
	
        8,079,989

        12/20/2011
	
        3rd
        MFee Due

        6/20/2023

	 	 	 	Robert E. Hoyt	 	 	 
	
        74660-06796

        US CIP2
	ApolloEndosurgery US, Inc.	ImplantableMedical Implants Having Fasteners and Methods of Fastening	 	
        12/607,323

        10/28/2009
	
        8,409,203

        04/02/2013
	
        2nd
        MFee Due

        10/02/2020

	74660-06797	ApolloEndosurgery US,	ImplantableDevice	 	12/843,629	8,496,614	2nd MFee Due
	US CON7	Inc.	Fastening System	07/26/2010	07/30/2013	01/30/2021
	74660-06798	ApolloEndosurgery US,	ImplantableDevice	 	13/159,883	8,317,761	2nd MFee Due
	US CON8	Inc.	FasteningSystemand Methods of Use	06/14/2011	11/27/2012	05/27/2020
	
        74660-06701

        Australia
	Apollo Endosurgery, Inc.	ImplantableDevice Fastening System and Methods of Use	 	
        2004281641

        09/15/2004
	
        2004281641

        09/30/2010
	AnnuityDue 09/15/2020
	
        74660-06799

        Australia DIV
	Apollo Endosurgery, Inc.	ImplantableDevice Fastening System and Methods of Use	 	
        2010201790

        05/04/2010
	
        2010201790

        03/14/2013
	Annuity Due 09/15/2020


 






    Schedule 5-11


     


    

 


	DOCKET

                                                                                NO.
	ASSIGNEE	TITLE	INVENTOR	
        SERIAL NO.

        FILING 

DATE
	
        PATENT 

NO.

        ISSUE 

DATE
	STATUS
	
        74660-06705

        Europe
	Apollo Endosurgery, Inc.	ImplantableDevice Fastening System	 	2004788749	
        1662971

        06/22/2011
	AnnuitiesDue 09/30/2020
	 	 	 	 	 	(Validated in DE, FR, GB, & IT)
	 	 	 	 	 	Dropped in DE
	
        74660-06765

        Europe DIV
	Apollo Endosurgery, Inc.	ImplantableDevice Fastening System and Methods of Use	 	2011152489	
        2311520

        12/03/2014
	
        Annuities Due 09/30/2020

        (Validated in BE, DE. FR, GB, IT)

	 	 	 	 	 	Dropped in BE & DE
	74660-06713	Allergan, Inc.	ImplantableDevice	 	PA06003005	265727	Annuity Due
	Mexico	 	FasteningSystemand Methods of Use	03/15/2006	04/06/2009	September, 2023
	74660-06800	ApolloEndosurgery US,	ImplantableDevice	 	10/562,954	7,901,381	3rd MFee Due
	US	Inc.	FasteningSystemand Methods of Use	12/30/2005	03/08/2011	09/08/2022
	
        74660-06803

        Canada
	Apollo Endosurgery, Inc.	ImplantableDevice Fastening System and Methods of Use	 	
        2567158

        07/07/2006
	
        2567158

        08/09/2011
	AnnuityDue 7/21/2021
	
        74660-06801

        Australia
	Apollo Endosurgery, Inc.	ImplantableDevice Fastening System and Methods of Use	 	
        2005209251

        07/20/2006
	
        2005209251

        05/20/2010
	AnnuityDue 01/21/2021
	
        74660-06805

        Europe
	Apollo Endosurgery, Inc.	ImplantableDevice FasteningSystemand	 	
        200570596

        12/22/2005
	
        1670362

        12/01/2010
	
        Annuities Due

        01/21/2021 for



 






    Schedule 5-12


     


    

 


	DOCKET

                                                                                NO.
	ASSIGNEE	TITLE	INVENTOR	
        SERIAL NO.

        FILING 

DATE
	
        PATENT 

NO.

        ISSUE 

DATE
	STATUS
	 	 	Methods of Use	 	 	 	
        ES, FR, GB, & IT

        (Validated in DE, ES, FR, GB, IT, &
        TR)

        Abandoned in DE and TR

	
        74660-06893

        Australia DIV
	Apollo Endosurgery, Inc.	ImplantableDevice Fastening System and Methods of Use	 	
        2010201793

        05/04/2010
	
        2010201793

        12/13/2012
	AnnuityDue 01/21/2021
	
        74660-06895

        Europe DIV
	Apollo Endosurgery, Inc.	ImplantableDevice Fastening System	 	
        2010181580

        01/21/2005
	
        2260773

        12/21/2011
	
        AnnuitiesDue 01/21/2021 for

        ES, FR, GB, & IT

        (Validated in DE, ES, FR, GB, & IT)

        Abandoned in DE

	
        74660-06896

        Europe DIV
	Apollo Endosurgery, Inc.	ImplantableDevice Fastening System	 	2011194523	2433672	
        Annuities Due

        01/21/2021for ES, FR, GB, & IT

        (Validated in DE, ES, FR, GB, & IT)

        Abandoned in DE

	
        74660-06900

        US
	ApolloEndosurgery US, Inc.	Implantable Access Port Device and Attachment System	 	
        12/426,057

        04/17/2009
	
        9,023,062

        05/05/2015
	
        2nd
        MFee Due

        11/05/2022



 






    Schedule 5-13


     


    

 



 


	DOCKET

                                                              NO.
	ASSIGNEE	TITLE	INVENTOR	
        SERIAL NO.

        FILING

        DATE
	
        PATENT

        NO.

        ISSUE

        DATE
	STATUS
	
        74660-06917

        US CON
	ApolloEndosurgery US, Inc.	ImplantableAccessPort Device Having a Safety Cap	 	
        12/750,565

        03/30/2010
	
        9,023,063

        05/05/2015
	
        2nd
        MFee Due

        11/05/2022

	
        74660-06936

        US DIV
	ApolloEndosurgery US, Inc.	ImplantableAccessPort Device Having a Safety Cap	 	
        13/546,204

        07/11/2012
	
        8,409,221

        04/02/2013
	
        2nd
        MFee Due

        10/02/2020

	
        74660-06937

        US CON2
	ApolloEndosurgery US, Inc.	Implantable Access Port Device and Attachment System	 	
        13/088,966

        04/18/2011
	
        8,398,654

        03/19/2013
	
        2nd
        MFee Due

        09/19/2020

	
        74660-06913

        Mexico
	Allergan, Inc.	Implantable Access Port Device and Attachment System	 	MX/a/2010/0 11367	317903	AnnuityDue April, 2024
	
        74660-07000

        US
	ApolloEndosurgery US, Inc.	SystemIncludingAccess Port and Applicator Tool	 	
        12/772,039

        04/30/2010
	
        8,506,532

        08/13/2013
	
        2nd
        MFee Due

        02/13/2021

	
        74660-07005

        Europe
	Apollo Endosurgery, Inc.	SystemIncludingAccess Port and Applicator Tool	CraigOlroyd; Christopher Mudd;Ahmet Tezel;Kris Turner;	
        2010745073

        03/23/2012
	
        2470128

        07/20/2016
	
        AnnuitiesDue 08/10/2020

        (Validated in DE, ES, FR, &
        GB)

        (dropped in DE in 2019)

	
        74660-07100

        US
	ApolloEndosurgery US, Inc.	Self-Adjusting Gastric Band	 	
        13/216,132

        08/23/2011
	
        9,044,298

        06/02/2015
	
        2nd
        MFee Due

        12/02/2022

	
        74660-07200

        US
	ApolloEndosurgery US, Inc.	Self-Adjusting Gastric Band Having Various Complaint Components and/or a  Satiety Booster	 	
        13/934,987

        07/03/2013
	
        9,295,573

        03/29/2016
	Abandoned 2/21/2020


 






    Schedule 5-14


     


    

 


	DOCKET

                                                                          NO.
	ASSIGNEE	TITLE	INVENTOR	
        SERIAL NO.

        FILING

        DATE
	
        PATENT

        NO.

        ISSUE

        DATE
	STATUS
	
        74660-07300

        US
	ApolloEndosurgery US, Inc.	Implantable Device to Protect Tubing From Puncture	 	
        12/771,609

        04/30/2010
	
        8,992,415

        03/31/2015
	
        2nd
        Mfee Due

        09/30/2022

	
        74660-07400

        US
	ApolloEndosurgery US, Inc.	Flow Control Method and Device	 	
        10/031,469

        05/29/2002
	
        7,128,750

        10/31/2006
	
        All Mfees

        Paid

	
        74660-07417

        US CON
	ApolloEndosurgery US, Inc.	Flow Control Method and Device	Nikos Stergiopulos	
        11/586,886

        10/26/2006
	
        8,079,974

        12/20/2011
	Abandoned 11/22/19
	
        74660-07436

        US CON2
	ApolloEndosurgery US, Inc.	Flow Control Method and Device	 	
        13/018,270

        01/31/2011
	
        8,932,247

        01/13/2015
	
        2nd
        Mfee Due

        07/13/2022

	
        74660-07437

        US CON3
	ApolloEndosurgery US, Inc.	Flow Control Method and Device	 	
        13/036,358

        02/28/2011
	
        8,506,517

        08/13/2013
	
        2nd
        Mfee Due

        02/15/2021

	
        74660-07438

        US CON4
	ApolloEndosurgery US, Inc.	Flow Control Method and Device	 	
        13/184,340

        07/15/2011
	
        8,821,430

        09/02/2014
	
        2nd
        Mfee Due

        03/02/2022

	
        74660-07500

        US
	ApolloEndosurgery US, Inc.	Surgical Ring Featuring a ReversibleDiameter Remote Control System (mechanically operable RAB with helical screw or spring within and fixed to one end of the band)	 	
        10/653,808

        09/03/2003
	
        7,238,191

        07/03/2007
	All Mfees Paid


 






    Schedule 5-15


     


    

 


	DOCKET

                                                                          NO.
	ASSIGNEE	TITLE	INVENTOR	
        SERIAL NO.

        FILING

        DATE
	
        PATENT

        NO.

        ISSUE

        DATE
	STATUS
	
        74660-07517

        US CIP
	ApolloEndosurgery US, Inc.	Telemetrically Controlled Band for Regulating Functioning of a Body Organ or Duct, and Methods of Making, Implantation and Use	 	
        10/962,939

        10/12/2004
	
        7,972,346

        07/05/2011
	
        3rdMfee

        01/05/2023

	
        74660-07513

        Mexico
	Endorat S.A.	Telemetrically Controlled Band for Regulating Functioning of a Body Organ or Duct, and Methods of Making, Implantation and Use	 	MX/a/2007/0 04338	287691	Annuity Due October, 2021
	
        74660-07700

        US
	ApolloEndosurgery US, Inc.	Closure System for Tubular Organs	 	
        12/874,147

        09/01/2010
	
        8,377,081

        02/19/2013
	
        2nd
        Mfee Due

        08/19/2020

	
        74660-07917

        US CON
	ApolloEndosurgery US, Inc.	HydraulicGastricBand With Collapsible Reservoir	 	
        13/184,456

        07/15/2011
	
        8,323,180

        12/04/2012
	
        2nd
        Mfee Due

        06/04/2020

	
        74660-08100

        US
	ApolloEndosurgery US, Inc.	Implantable Pump System with Calibration	 	
        12/500,464

        07/09/2009
	
        8,376,929

        02/19/2013
	
        2nd
        Mfee Due

        08/19/2020

	
        74660-08200

        US
	ApolloEndosurgery US, Inc.	Electrically Activated Valve for Implantable Fluid Handling System	 	
        12/603,058

        10/21/2009
	
        8,366,602

        02/05/2013
	2nd Mfee Due 08/05/2020
	
        74660-08300

        US
	ApolloEndosurgery US, Inc.	MechanicalGastricBand With Cushions (Easy Band)	 	
        12/574,640

        10/06/2009
	
        8,317,677

        11/27/2012
	
        2nd
        Mfee Due

        05/27/2020

	
        74660-08400

        US
	ApolloEndosurgery US, Inc.	RemotelyAdjustable Gastric Banding System	 	
        12/813,355

        06/10/2010
	
        8,517,915

        08/27/2013
	
        2nd
        Mfee Due

        02/27/2021



 






    Schedule 5-16


     


    

 


	DOCKET

                                                                          NO.
	ASSIGNEE	TITLE	INVENTOR	
        SERIAL NO.

        FILING

        DATE
	
        PATENT

        NO.

        ISSUE

        DATE
	STATUS
	
        74660-09400

        US
	Reshape Lifesciences Inc.	Implantable Injection Port	
        Ethan Franklin Justin Schwab

        ZacharyP. Dominguez
	
        13/277,802

        10/20/2011
	
        9,199,069

        12/01/2015
	
        2nd
        Mfee Due

        6/01/2023

	
        74660-09500

        US
	ApolloEndosurgery US, Inc.	Pre-Loaded Septum for Use With an Access Port	 	
        13/298,247

        11/16/2011
	
        9,089,395

        07/28/2015
	2ndMFeeDue 01/28/2023
	
        74660-11100

        US
	Reshape Lifesciences Inc.	Implantable Device	 	
        10/506,790

        09/07/2004
	
        7,314,443

        01/01/2008
	No Fees Due
	
        74660-11117

        US CON
	ApolloEndosurgery US, Inc.	Implantable Device	 	
        11/968,012

        12/31/2007
	
        7,959,552

        06/14/2011
	
        3rd
        MFee Due

        12/14/2022

	
        74660-11105

        Europe
	Apollo Endosurgery, Inc.	Implantable Device	 	
        2003714786

        03/06/2003
	
        1483730

        10/19/2005
	
        Annuities Due 03/20/2021

        Validated in DE,
        ES, FR, UK, & I T)

        Dropped in DE

	
        74660-11205

        Europe
	Apollo Endosurgery, Inc.	ImplantableAccessPort System	 	20110758065	
        2616134

        11/18/2015
	
        AnnuitiesDue 09/30/2020

        Validated in FR & GB

	
        74660-11300

        US
	ReShape Lifesciences Inc.	Adaptive Reservoir System for a Gastric Device	 	 	 	Not Yet Filed


 






    Schedule 5-17


     


    

 


	DOCKET

                                                                          NO.
	ASSIGNEE	TITLE	INVENTOR	
        SERIAL NO.

        FILING

        DATE
	
        PATENT

        NO.

        ISSUE

        DATE
	STATUS
	US	 	Obesity Treatment with Electrically Induced Vagal Downregulation	 	 	
        7,167,750

        01/23/2007
	 
	US	 	IntraluminalElectrode Apparatus and Method	 	 	
        7,444,183

        10/28/2008
	 
	US	 	VagalDown-Regulation Obesity Treatment	 	 	
        7,489,969

        02/10/2009
	 
	US	 	HighFrequencyVagal Blockage Therapy	 	 	
        7,613,515

        11/03/2009
	 
	US	 	GIInflammatoryDisease Treatment	 	 	
        7,630,769

        12/08/2009
	 
	US	 	Neural Electrode Treatment	 	 	
        7,672,727

        03/02/2010
	 
	US	 	Irritable Bowel Syndrome Treatment	 	 	
        7,693,577

        04/06/2010
	 
	US	 	Pancreatitis Treatment	 	 	
        7,720,540

        05/18/2010
	 
	US	 	Nerve Stimulation and Blocking for Treatment of Gastrointestinal Disorders	 	 	
        7,729,771

        06/01/2010
	 
	US	 	CustomSizedNeural Electrodes	 	 	
        7,822,486

        10/26/2010
	 


 






    Schedule 5-18


     


    

 


	DOCKET

                                                                          NO.
	ASSIGNEE	TITLE	INVENTOR	
        SERIAL NO.

        FILING

        DATE
	
        PATENT

        NO.

        ISSUE

        DATE
	STATUS
	US	 	RemoteMonitoringand Control of Multiple Devices	 	 	
        8,068,918

        11/29/2011
	 
	US	 	ImplantableTherapy System with External ComponentHaving Multiple Operating Modes	 	 	
        8,140,167

        03/20/2012
	 
	US	 	ImplantableDevicewith Heat Storage	 	 	
        8,326,426

        12/04/2012
	 
	US	 	Bulimia Treatment	 	 	
        8,369,952

        02/05/2013
	 
	US	 	Methods and Systems for Glucose Regulation	 	 	
        8,483,830

        07/09/2013
	 
	US	 	Antenna Arrangements for Implantable Therapy Device	 	 	
        8,483,838

        07/09/2013
	 
	US	 	Remote Monitoring and Control of Implantable Devices	 	 	
        8,521,299

        08/27/2013
	 
	US	 	Implantable Therapy system Having Multiple Operating Modes	 	 	
        8,532,787

        09/10/2013
	 
	US	 	Controlled Vagal Blockage Therapy	 	 	
        8,538,533

        09/17/2013
	 


 






    Schedule 5-19


     


    

 


	DOCKET

                                                                          NO.
	ASSIGNEE	TITLE	INVENTOR	
        SERIAL NO.

        FILING

        DATE
	
        PATENT

        NO.

        ISSUE

        DATE
	STATUS
	US	 	Nerve Stimulation and Blocking for Treatment of Gastrointestinal Disorders	 	 	
        8,538,542

        09/17/2013
	 
	US	 	ObesityTreatmentand Device	 	 	
        8,372,158

        02/12/2013
	 
	US	 	Systems for Regulation of Blood Pressure and Heart Rate	 	 	
        8,768,469

        07/01/2014
	 
	US	 	Neural Modulation Devices and Methods	 	 	
        8,825,164

        09/02/2014
	 
	US	 	Electrode Band system and Methods of Using the System to Treat Obesithy	 	 	
        8,862,233

        10/14/2014
	 
	US	 	Treatment of Excess Weight by Neural Downregulation in Combinationwith Compositions	 	 	
        9,186,502

        11/17/2015
	 
	US	 	Methods and Systems for Glucose Regulation	 	 	
        9,333,340

        05/10/2016
	 
	US	 	Neural Modulation Devices and Methods	 	 	
        9,358,395

        06/07/2016
	 
	US	 	Safety Features for Use in Medical Devices	 	 	
        9,393,420

        07/19/2016
	 


 






    Schedule 5-20


     


    

 


	DOCKET

                                                                          NO.
	ASSIGNEE	TITLE	INVENTOR	
        SERIAL NO.

        FILING

        DATE
	
        PATENT

        NO.

        ISSUE

        DATE
	STATUS
	US	 	Electrode Band System and Methods of Using the System to Treat Obesity	 	 	
        9,586,046

        03/07/2017
	 
	US	 	Nerve Stimulation and Blocking for Treatment of Gastrointestinal Disorders	 	 	
        9,682,233

        06/20/2017
	 
	US	 	Systems for Regulation of Blood Pressure and Heart Rate	 	 	
        9,616,231

        04/11/2017
	 
	US	 	System and Method for Managing Mobile Drive Units	 	 	
        8,068,978

        11/29/2011
	 
	US	 	ObesityTreatmentand Device	 	 	
        8,372,158

        02/12/2013
	 
	US	 	Systems for Regulation of Blood Pressure and Heart Rate	 	 	
        9,616,231

        04/11/2017
	 
	US	 	Neural Modulation Devices and Methods	 	 	
        9,968,778

        05/15/2018
	 
	US	 	Calibration Methods for Near-FieldAcoustic Imaging Systems	 	 	
        9,979,955

        05/22/2018
	 


 






    Schedule 5-21


     


    

 


SCHEDULE 6


TO


GUARANTEE AND COLLATERAL AGREEMENT


 


Deposit Accounts


 


	Type of Account	Depository Bank or

Securities Intermediary	Address of Depository Bank

or Securities Intermediary	Account
    Number
	Operating Account	Silicon Valley Bank	
        3003 Tasman Drive

        Santa Clara, CA 95054
	3300626746


 






    Schedule 6-1


     


    

 


SCHEDULE 7


TO


GUARANTEE AND COLLATERAL AGREEMENT


 


Commercial Tort Claims


 


None.


 






    Schedule-7