Exhibit 10.1


 


Execution
Version


 


FOURTH
AMENDED AND RESTATED CREDIT AND SECURITY AGREEMENT








 


THIS
FOURTH AMENDED AND RESTATED CREDIT AND SECURITY AGREEMENT (this “Agreement”), dated as of June 4, 2021
(the “Closing Date”) by and among MIDCAP FINANCIAL TRUST, a Delaware statutory trust (“MidCap”),
as administrative agent (together with its successors and assigns, “Agent”), the Lenders listed on the Credit Facility
Schedule attached hereto and otherwise party hereto from time to time (each a “Lender”, and collectively the “Lenders”),
and OCULAR THERAPEUTIX, INC., a Delaware corporation (“Borrower”), provides the terms on which Lenders
agree to lend to Borrower and Borrower shall repay Lenders.


 


A. MidCap, Borrower, and the
Lenders party thereto (the “Existing Lenders”) are parties to that certain Third Amended and Restated Credit and Security
Agreement, dated as of December 21, 2018 (the “Third Restatement Closing Date”) by and among MidCap Financial
Trust, as administrative agent (the “Existing Agent”), Borrower and the Existing Lenders (as amended, supplemented
or otherwise modified at any time prior to the date hereof, the “Existing Credit Agreement”).


 


B. Existing Agent, Borrower
and certain Existing Lenders wish to amend and restate the Existing Credit Agreement in its entirety with this Agreement, it being their
intention that this Agreement and the execution and the delivery of the other documents or agreements executed in connection herewith
shall not be a novation of the ‘Credit Extensions’ (as such term is defined in the Existing Credit Agreement, the “Existing
Loan”) and ‘Obligations’ (as defined in the Existing Credit Agreement and as used herein, the “Existing
Obligations”) of the Borrower or any Credit Party pursuant to the Existing Credit Agreement and the ‘Financing Documents’
(as such term is defined in the Existing Credit Agreement and as used herein, the “Existing Financing Documents”),
but shall merely restate, and where applicable, amend or modify the terms of such Existing Obligations, so that the Obligations (as hereinafter
defined) represent, among other things, the amendment, restatement, renewal, extension and modification of the Existing Obligations and
the Financing Documents (as hereinafter defined) shall restructure, restate, renew, extend, amend and modify the Existing Credit Agreement
and the other Existing Financing Documents executed in connection therewith. The parties agree as follows:


 


1            ACCOUNTING
AND OTHER TERMS


 


Accounting terms not defined
in this Agreement shall be construed in accordance with GAAP. Calculations and determinations must be made in accordance with GAAP. Capitalized
terms not otherwise defined in this Agreement shall have the meanings set forth in Section 15. All other terms contained in
this Agreement, unless otherwise indicated, shall have the meaning provided by the Code to the extent such terms are defined therein.
All headings numbered without a decimal point are herein referred to as “Articles,” and all paragraphs numbered with a decimal
point (and all subparagraphs or subsections thereof) are herein referred to as “Sections.” Notwithstanding the foregoing,
any obligations of a Person that are or would have been treated as operating leases for purposes of GAAP prior to the issuance by the
Financial Accounting Standards Board on February 25, 2016 of an Accounting Standards Update (the “ASU”) shall continue
to be accounted for as operating leases for purposes of all financial definitions, calculations and covenants for purpose of this Agreement
(whether or not such operating lease obligations were in effect on such date) notwithstanding the fact that such obligations are required
in accordance with the ASU (on a prospective or retroactive basis or otherwise) to be treated as capitalized lease obligations in accordance
with GAAP (for the avoidance of doubt, other than for purposes of the delivery of financial statements prepared in accordance with GAAP).


 






     


     


    

 


2            CREDIT
FACILITIES AND TERMS


 


2.1            Promise
to Pay. Borrower hereby unconditionally promises to pay to each Lender in accordance with each Lender’s respective Pro Rata
Share of each Credit Facility, the outstanding principal amount of all Credit Extensions made by the Lenders under such Credit Facility
and accrued and unpaid interest thereon and any other amounts due hereunder as and when due in accordance with this Agreement.








 


2.2            Credit
Facilities. Subject to the terms and conditions hereof, each Lender, severally, but not jointly, agrees to make available to Borrower
Credit Extensions in respect of each Credit Facility set forth opposite such Lender’s name on the Credit Facility Schedule (other
than in respect of Credit Facility #1, which was fully funded as of the Third Restatement Closing Date), in each case not to exceed such
Lender’s commitment as identified on the Credit Facility Schedule (such commitment of each Lender, as it may be amended to
reflect assignments made in accordance with this Agreement or terminated or reduced in accordance with this Agreement, its “Applicable
Commitment”, and the aggregate of all such commitments, the “Applicable Commitments”).


 


2.3            Term
Credit Facilities.


 


(a)            Nature
of Credit Facility; Credit Extension Requests. As of the Closing Date, the Existing Loan made pursuant to Credit Facility #1 on the
Third Restatement Closing Date under the Existing Credit Agreement (in the outstanding principal amount on the date hereof of $20,833,333.35),
shall be rolled over and converted into Credit Extensions under Credit Facility #1 hereunder and shall constitute a portion of the Obligations
under, and subject to the terms of, this Agreement (including the revised Credit Facility Schedule and Amortization Schedule attached
hereto). On the Closing Date, the Borrower may request (by submitting a Credit Extension Form on the date that is two (2) Business
Days prior to the Closing Date) and the Lenders, on and subject to the terms of this Agreement, agree to advance the Credit Extensions
under Credit Facility #2 in accordance with their Pro Rata Shares on the Closing Date. To the extent any Term Credit Facility proceeds
are repaid for any reason, whether voluntarily or involuntarily (including repayments from insurance or condemnation proceeds), Agent
and Lenders shall have no obligation to re-advance such sums to Borrower.


 


(b)            Principal
Payments. Principal payable on account of a Term Credit Facility shall be payable by Borrower to Agent immediately upon the earliest
of (i) the date(s) set forth in the Amortization Schedule for such Term Credit Facility (or if no such Amortization
Schedule is attached, then upon Agent’s demand for payment), or (ii) the Maturity Date. Except as this Agreement may specifically
provide otherwise, all prepayments of Credit Extensions under Term Credit Facilities shall be applied by Agent to the applicable Term
Credit Facility in inverse order of maturity. The monthly payments required under the Amortization Schedule shall continue in the
same amount (for so long as the applicable Term Credit Facility shall remain outstanding) notwithstanding any partial prepayment, whether
mandatory or optional, of the applicable Term Credit Facility.


 


(c)            Mandatory
Prepayment. If a Term Credit Facility is accelerated following the occurrence of an Event of Default, Borrower shall immediately pay
to Agent, for payment to each Lender in accordance with its respective Pro Rata Share, an amount equal to the sum of: (i) all outstanding
principal of the Term Credit Facility and all other Obligations, plus accrued and unpaid interest thereon, (ii) any fees payable
under the Fee Letters by reason of such prepayment, (iii) the Applicable Prepayment Fee as specified in the Credit Facility Schedule
for the Credit Facility being prepaid, and (iv) all other sums that shall have become due and payable, including Protective Advances.
Additionally, at the election of Agent, Borrower shall prepay the Term Credit Facilities (to be allocated pro rata among the outstanding
Credit Extensions under all Term Credit Facilities) in the following amounts: (A) on the date on which any Credit Party (or Agent
as loss payee or assignee) receives any casualty proceeds in excess of Five Hundred Thousand Dollars ($500,000) for property, in respect
of assets upon which Agent maintained a Lien, an amount equal to one hundred percent (100%) of such proceeds (net of out-of-pocket expenses
and, in the case of personal property, repayment of any permitted purchase money debt encumbering the personal property that suffered
such casualty), or such lesser portion of such proceeds as Agent shall elect to apply to the Obligations; and (B) upon receipt by
any Credit Party of the proceeds of any asset disposition of personal property not made in the Ordinary Course of Business (other than
transfers permitted by Section 7.1) an amount equal to one hundred percent (100%) of the net cash proceeds of such asset disposition
(net of out-of-pocket expenses and repayment of any permitted purchase money debt encumbering such asset), or such lesser portion as Agent
shall elect to apply to the Obligations. Notwithstanding the foregoing, (a) so long as no Default or Event of Default has occurred
and is continuing, Borrower shall have the option of applying the proceeds of any casualty policy up to $500,000 in the aggregate with
respect to any property loss in any one year, toward the replacement or repair of destroyed or damaged property; provided that any such
replaced or repaired property (x) shall be of equal or like value as the replaced or repaired Collateral and (y) shall be deemed
Collateral in which Agent and Lenders have been granted a first priority security interest, and (b) after the occurrence and during
the continuance of a Default or Event of Default, all proceeds payable under such casualty policy shall, at the option of Agent, be payable
to Agent, for the ratable benefit of the Lenders, on account of the Obligations.


 






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(d)            Permitted
Prepayment. Except as provided below, Borrower shall have no right to prepay the Credit Extensions made in respect of a Term Credit
Facility. After the Closed Period, if any, for the applicable Term Credit Facility as specified in the Credit Facility Schedule,
Borrower shall have the option to prepay the Prepayable Amount (as defined below) of a Term Credit Facility advanced by the Lenders under
this Agreement, provided Borrower (i) provides written notice to Agent of its election to prepay the Prepayable Amount at
least thirty (30) days prior to such prepayment, and (ii) pays to Agent, for payment to each Lender in accordance with its respective
Pro Rata Share, on the date of such prepayment, an amount equal to the sum of (A) the Prepayable Amount plus accrued interest thereon,
(B) any fees payable under the Fee Letters by reason of such prepayment, (C) the Applicable Prepayment Fee as specified in the
Credit Facility Schedule for the Credit Facility being prepaid and (D) all Protective Advances. The term “Prepayable
Amount” means all or any portion of the Credit Extensions and all other Obligations under the applicable Term Credit Facility.


 


2.4           Reserved.


 


2.5           Reserved.


 


2.6           Interest
and Payments; Administration.


 


(a)            Interest;
Computation of Interest. Each Credit Extension shall bear interest on the outstanding principal amount thereof from the date when
made until paid in full at a rate per annum equal to the Applicable Interest Rate. Each Lender may, upon the failure of Borrower to pay
any fees or interest as required herein, capitalize such interest and fees and begin to accrue interest thereon until paid in full, which
such interest shall be at a rate per annum equal to the Applicable Interest Rate unless and until the Default Rate shall otherwise apply.
All other Obligations shall bear interest on the outstanding amount thereof from the date they first become payable by Borrower under
the Financing Documents until paid in full at a rate per annum equal to the Applicable Interest Rate unless and until the Default Rate
shall otherwise apply. Interest on the Credit Extensions and all fees payable under the Financing Documents shall be computed on the basis
of a 360-day year and the actual number of days elapsed in the period during which such interest accrues. In computing interest on any
Credit Extension or other advance, the date of the making of such Credit Extension or advance shall be included and the date of payment
shall be excluded; provided, however, that if any Credit Extension or advance is repaid on the same day on which it is made,
such day shall be included in computing interest on such Credit Extension or advance. As of each Applicable Interest Rate Determination
Date, Agent shall determine (which determination shall, absent manifest error, be final, conclusive and binding upon all parties) the
interest rate that shall apply to the Credit Extensions in accordance with this Section 2.6(a) and the terms and conditions
of the applicable Credit Facility Schedule.


 






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(b)            Default
Rate. Upon the election of Agent following the occurrence and during the continuance of an Event of Default, Obligations shall bear
interest at a rate per annum which is four hundred basis points (4.00%) above the rate that is otherwise applicable thereto (the “Default
Rate”). Payment or acceptance of the increased interest rate provided in this subsection is not a permitted alternative
to timely payment and shall not constitute a waiver of any Event of Default or otherwise prejudice or limit any rights or remedies of
Agent or Lenders.


 


(c)            Payments
Generally. Except as otherwise provided in this Section 2.6(c), all payments in respect of the Obligations shall be made
to Agent for the account of the applicable Lenders in accordance with their Pro Rata Share. All Obligations are payable upon demand of
Agent in the absence of any other due date specified herein. All fees payable under the Financing Documents shall be deemed non-refundable
as of the date paid. Any payment required to be made to Agent or a Lender under this Agreement may be made by debit or automated clearing
house payment initiated by Agent or such Lender from any of Borrower’s deposit accounts, including the Designated Funding Account,
and Borrower hereby authorizes Agent and each Lender to debit any such accounts for any amounts Borrower owes hereunder when due. Without
limiting the foregoing, Borrower shall tender to Agent and Lenders any authorization forms as Agent or any Lender may require to implement
such debit or automated clearing house payment. These debits or automated clearing house payments shall not constitute a set-off. Payments
of principal and/or interest received after 12:00 noon New York time are considered received at the opening of business on the next Business
Day. When a payment is due on a day that is not a Business Day, the payment is due the next Business Day and additional fees or interest,
as applicable, shall continue to accrue until paid. All payments to be made by Borrower under any Financing Document shall be made without
set-off, recoupment or counterclaim, in lawful money of the United States and in immediately available funds. The balance of the Obligations,
as recorded in Agent’s books and records at any time, shall be conclusive and binding evidence of the amounts due and owing to Agent
and Lenders by each Borrower absent manifest error; provided, however, that any failure to so record or any error in so
recording shall not limit or otherwise affect any Borrower’s duty to pay all amounts owing hereunder or under any Financing Document.
Agent shall endeavor to provide Borrower with a monthly statement regarding the Credit Extensions (but neither Agent nor any Lender shall
have any liability if Agent shall fail to provide any such statement). Unless Borrower notifies Agent of any objection to any such statement
(specifically describing the basis for such objection) within ninety (90) days after the date of receipt thereof, it shall be deemed final,
binding and conclusive upon Borrower in all respects as to all matters reflected therein.


 


(d)            Interest
Payments; Maturity Date. Commencing on the first (1st) Payment Date following the funding of a Credit Extension, and continuing
on the Payment Date of each successive month thereafter through and including the Maturity Date, Borrower shall make monthly payments
of interest, in arrears, calculated as set forth in this Section 2.6. All unpaid principal and accrued interest is due and
payable in full on the Maturity Date or any earlier date specified herein. If the Obligations are not paid in full on or before the Maturity
Date, all interest thereafter accruing shall be payable immediately upon accrual.


 






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(e)            Fees.
Borrower shall pay, as and when due and payable under the terms of the Fee Letters, to Agent and each Lender, for their own accounts and
not for the benefit of any other Lenders, the fees set forth in the Fee Letters.


 








(f)            Protective
Advances. Borrower shall pay to Agent for the account of Lenders all Protective Advances (including reasonable attorneys’ fees
and expenses for documentation and negotiation of this Agreement and the other Financing Documents) when due under any Financing Document
(and in the absence of any other due date specified herein, such Protective Advances shall be due upon demand).


 


(g)            Maximum
Lawful Rate. In no event shall the interest charged hereunder with respect to the Obligations exceed the maximum amount permitted
under the Laws of the State of Maryland. Notwithstanding anything to the contrary in any Financing Document, if at any time the rate of
interest payable hereunder (the “Stated Rate”) would exceed the highest rate of interest permitted under any applicable
Law to be charged (the “Maximum Lawful Rate”), then for so long as the Maximum Lawful Rate would be so exceeded, the
rate of interest payable shall be equal to the Maximum Lawful Rate; provided, however, that if at any time thereafter the Stated
Rate is less than the Maximum Lawful Rate, Borrower shall, to the extent permitted by Law, continue to pay interest at the Maximum Lawful
Rate until such time as the total interest received is equal to the total interest which would have been received had the Stated Rate
been (but for the operation of this provision) the interest rate payable. Thereafter, the interest rate payable shall be the Stated Rate
unless and until the Stated Rate again would exceed the Maximum Lawful Rate, in which event this provision shall again apply. In no event
shall the total interest received by any Lender exceed the amount which it could lawfully have received, had the interest been calculated
for the full term hereof at the Maximum Lawful Rate. If, notwithstanding the prior sentence, any Lender has received interest hereunder
in excess of the Maximum Lawful Rate, such excess amount shall be applied to the reduction of the principal balance of such Lender’s
Credit Extensions or to other amounts (other than interest) payable hereunder, and if no such Credit Extensions or other amounts are then
outstanding, such excess or part thereof remaining shall be paid to Borrower. In computing interest payable with reference to the Maximum
Lawful Rate applicable to any Lender, such interest shall be calculated at a daily rate equal to the Maximum Lawful Rate divided by
the number of days in the year in which such calculation is made.


 


(h)            Taxes;
Additional Costs.


 


(i)            All
payments of principal and interest on the Obligations and all other amounts payable hereunder shall be made free and clear of and without
deduction for any present or future income, excise, stamp, documentary, payroll, employment, property or franchise taxes and other taxes,
fees, duties, levies, assessments, withholdings or other charges of any nature whatsoever (including interest and penalties thereon) imposed
by any taxing authority, excluding taxes imposed on or measured by Agent’s or any Lender’s net income by the jurisdictions
under which Agent or such Lender is organized or conducts business (other than solely as the result of entering into any of the Financing
Documents or taking any action thereunder) (all non-excluded items being called “Taxes”). If any withholding or deduction
from any payment to be made by any Borrower hereunder is required in respect of any Taxes pursuant to any applicable Law, then Borrower
will: (i) pay directly to the relevant authority the full amount required to be so withheld or deducted; (ii) promptly forward
to Agent an official receipt or other documentation satisfactory to Agent evidencing such payment to such authority; and (iii) pay
to Agent for the account of Agent and Lenders such additional amount or amounts as is necessary to ensure that the net amount actually
received by Agent and each Lender will equal the full amount Agent and such Lender would have received had no such withholding or deduction
been required. If any Taxes are directly asserted against Agent or any Lender with respect to any payment received by Agent or such Lender
hereunder, Agent or such Lender may pay such Taxes and Borrower will promptly pay such additional amounts (including any penalty, interest
or expense) as is necessary in order that the net amount received by such Person after the payment of such Taxes (including any Taxes
on such additional amount) shall equal the amount such Person would have received had such Taxes not been asserted so long as such amounts
have accrued on or after the day which is two hundred seventy (270) days prior to the date on which Agent or such Lender first made written
demand therefor.


 






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(ii)            If
any Borrower fails to pay any Taxes when due to the appropriate taxing authority or fails to remit to Agent, for the account of Agent
and the respective Lenders, the required receipts or other required documentary evidence, Borrower shall indemnify Agent and Lenders for
any incremental Taxes, interest or penalties that may become payable by Agent or any Lender as a result of any such failure.


 


(iii)            Each
Lender that (A) is organized under the laws of a jurisdiction other than the United States, and (B)(1) is a party hereto on
the Closing Date or (2) purports to become an assignee of an interest as a Lender under this Agreement after the Closing Date (unless
such Lender was already a Lender hereunder immediately prior to such assignment) (each such Lender a “Foreign Lender”)
shall execute and deliver to each of Borrower and Agent one or more (as Borrower or Agent may reasonably request) United States Internal
Revenue Service Forms W-8ECI, W-8BEN, W-8IMY (as applicable) and other applicable forms, certificates or documents prescribed by the United
States Internal Revenue Service or reasonably requested by Agent certifying as to such Lender’s entitlement to a complete exemption
from withholding or deduction of Taxes. Borrower shall not be required to pay additional amounts to any Lender pursuant to this subsection
(h) with respect to United States withholding and income Taxes to the extent that the obligation to pay such additional amounts
would not have arisen but for the failure of such Lender to comply with this paragraph other than as a result of a change in law.


 


(iv)            If
any Lender shall determine in its commercially reasonable judgment that the adoption or taking effect of, or any change in, any applicable
Law regarding capital adequacy, in each instance, after the Closing Date, or any change after the Closing Date in the interpretation,
administration or application thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation,
administration or application thereof, or the compliance by any Lender or any Person controlling such Lender with any request, guideline
or directive regarding capital adequacy (whether or not having the force of law) of any such Governmental Authority, central bank or comparable
agency adopted or otherwise taking effect after the Closing Date, has or would have the effect of reducing the rate of return on such
Lender’s or such controlling Person’s capital as a consequence of such Lender’s obligations hereunder to a level below
that which such Lender or such controlling Person could have achieved but for such adoption, taking effect, change, interpretation, administration,
application or compliance (taking into consideration such Lender’s or such controlling Person’s policies with respect to capital
adequacy) then from time to time, upon written demand by such Lender (which demand shall be accompanied by a statement setting forth the
basis for such demand and a calculation of the amount thereof in reasonable detail, a copy of which shall be furnished to Agent), Borrower
shall promptly pay to such Lender such additional amount as will compensate such Lender or such controlling Person for such reduction,
so long as such amounts have accrued on or after the day which is two hundred seventy (270) days prior to the date on which such Lender
first made demand therefor; provided, however, that notwithstanding anything in this Agreement to the contrary, (A) the
Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection
therewith and (B) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel
Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each
case pursuant to Basel III, shall in each case be deemed to be a “change in applicable Law”, regardless of the date enacted,
adopted or issued.


 


(v)            If
any Lender requires compensation under this subsection (h), or requires any Borrower to pay any additional amount to any Lender
or any Governmental Authority for the account of any Lender pursuant to this subsection (h), then, upon the written request of
Borrower, such Lender shall use reasonable efforts to designate a different lending office for funding or booking its Credit Extensions
hereunder or to assign its rights and obligations hereunder (subject to the terms of this Agreement) to another of its offices, branches
or affiliates, if, in the judgment of such Lender, such designation or assignment (A) would eliminate or materially reduce amounts
payable pursuant to any such subsection, as the case may be, in the future, and (B) would not subject such Lender to any unreimbursed
cost or expense and would not otherwise be disadvantageous to such Lender (as determined in its sole discretion). Borrower hereby agrees
to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment.


 






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(i)            Administrative
Fees and Charges.


 


(i)            Borrower
shall pay to Agent, for its own account and not for the benefit of any other Lenders, all reasonable fees and expenses in connection with
audits and inspections of the books and records of the Credit Parties, audits, valuations or appraisals of the Collateral, audits of Borrower’s
compliance with applicable Laws and such other matters as Agent shall deem appropriate, which shall be due and payable on the first Business
Day of the month following the date of issuance by Agent of a written request for payment thereof to any Borrower; provided, that,
as long as no Default has occurred within the preceding twelve (12) months, Agent shall be entitled to such reimbursement for no more
than one audit and inspection per calendar quarter.


 


(ii)            If
payments of principal or interest due on the Obligations, or any other amounts due hereunder or under the other Financing Documents, are
not timely made and remain overdue for a period of five (5) days, Borrower, without notice or demand by Agent, promptly shall pay
to Agent, for its own account and not for the benefit of any other Lenders, as additional compensation to Agent in administering the Obligations,
an amount equal to five percent (5.0%) of each delinquent payment.


 


2.7            Secured
Promissory Notes. At the election of any Lender made as to each Credit Facility for which it has made Credit Extensions, each Credit
Facility shall be evidenced by one or more secured promissory notes in form and substance satisfactory to Agent and Lenders (each a “Secured
Promissory Note”). Upon receipt of an affidavit of an officer of a Lender as to the loss, theft, destruction, or mutilation
of its Secured Promissory Note, Borrower shall issue, in lieu thereof, a replacement Secured Promissory Note in the same principal amount
thereof and of like tenor.


 


3              CONDITIONS
OF credit extensions


 


3.1            Conditions
Precedent to Credit Extension to be made on the Closing Date. Each Lender’s obligation to make an advance in respect of a Credit
Facility is subject to the condition precedent that Agent shall consent to or shall have received, in form and substance satisfactory
to Agent, such documents, and completion of such other matters, as Agent may reasonably deem necessary or appropriate, including, without
limitation, all items listed on the Closing Deliveries Schedule attached hereto.


 


3.2            Conditions
Precedent to all Credit Extensions. The obligation of each Lender to make each Credit Extension, including the initial Credit Extension,
is subject to the following conditions precedent:


 


(a)            timely
receipt by the Agent and each Lender of an executed Credit Extension Form in the form attached hereto except for Credit Extensions
made on the Closing Date;


 


(b)           (i)         for
Credit Extensions made on the Closing Date, the representations and warranties in Article 5 and elsewhere in the Financing
Documents shall be true, correct and complete in all respects on the Closing Date; provided, however, that those representations
and warranties expressly referring to a specific date shall be true, correct and complete in all respects as of such date; and


 


(ii)            for
Credit Extensions made after the Closing Date, if any, the representations and warranties in Article 5 and elsewhere in the
Financing Documents shall be true, correct and complete in all material respects on the date of the Credit Extension Form and on
the Funding Date of each Credit Extension; provided, however, that such materiality qualifier shall not be applicable to
any representations and warranties that already are qualified or modified by materiality in the text thereof; and provided, further
that those representations and warranties expressly referring to a specific date shall be true, accurate and complete in all material
respects as of such date. Each Credit Extension is Borrower’s representation and warranty on that date that the representations
and warranties in Article 5 and elsewhere in the Financing Documents remain true, accurate and complete in all material respects;
provided, however, that such materiality qualifier shall not be applicable to any representations and warranties that already
are qualified or modified by materiality in the text thereof; and provided, further that those representations and warranties
expressly referring to a specific date shall be true, accurate and complete in all material respects as of such date;


 






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(c)            no
Default or Event of Default shall have occurred and be continuing or result from the Credit Extension;


 


(d)            Agent
shall be satisfied with the results of any searches conducted under Section 3.5;


 


(e)            receipt
by Agent of such evidence as Agent shall request to confirm that the deliveries made in Section 3.1 remain current, accurate
and in full force and effect, or if not, updates thereto, each in form and substance satisfactory to Agent; and


 


(f)            as
determined in such Lender’s sole discretion, there has not been any Material Adverse Change or any material adverse deviation by
Borrower from the most recent business plan of Borrower presented to and accepted by Agent.


 


3.3            Method
of Borrowing. The Credit Extension in respect of each Credit Facility shall be funded in a single drawing and shall be in an amount
at least equal to the applicable Minimum Credit Extension Amount for such Credit Facility as set forth in the Credit Facility Schedule.
The date of funding for any requested Credit Extension shall be a Business Day. To obtain a Credit Extension, Borrower shall deliver to
Agent a completed Credit Extension Form executed by a Responsible Officer. Agent may rely on any notice given by a person whom Agent
reasonably believes is a Responsible Officer or designee thereof. Agent and Lenders shall have no duty to verify the authenticity of any
such notice.


 


3.4            Funding
of Credit Facilities. Upon the terms and subject to the conditions set forth herein, each Lender, severally and not jointly, shall
make available to Agent its Pro Rata Share of the requested Credit Extension, in lawful money of the United States of America in immediately
available funds, prior to 11:00 a.m. (New York time) on the specified date for the Credit Extension. Agent shall, unless it shall
have determined that one of the conditions set forth in Section 3.1 or 3.2, as applicable, has not been satisfied,
by 2:00 p.m. (New York time) on such day, credit the amounts received by it in like funds to Borrower by wire transfer to the Designated
Funding Account (or to the account of Borrower in respect of the Obligations, if the Credit Extension is being made to pay an Obligation
of Borrower). A Credit Extension made prior to the satisfaction of any conditions set forth in Section 3.1 or 3.2 shall
not constitute a waiver by Agent or Lenders of Borrower’s obligation to satisfy such conditions, and any such Credit Extension made
in the absence of such satisfaction shall be made in Agent’s discretion.


 


3.5            Searches.
Before the Closing Date, and thereafter (as and when determined by Agent in its discretion), Agent shall have the right to perform, all
at Borrower’s expense, the searches described in clauses (a), (b), and (c) below against Borrower and any other Credit Party,
the results of which are to be consistent with Borrower’s representations and warranties under this Agreement and the reasonably
satisfactory results of which shall be a condition precedent to all Credit Extensions requested by Borrower: (a) title investigations,
UCC searches and fixture filings searches; (b) judgment, pending litigation, federal tax lien, personal property tax lien, and corporate
and partnership tax lien searches, in each jurisdiction searched under clause (a) above; and (c) searches of applicable corporate,
limited liability company, partnership and related records to confirm the continued existence, organization and good standing of the applicable
Person and the exact legal name under which such Person is organized.


 






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4            CREATION
OF SECURITY INTEREST


 


4.1            Grant
of Security Interest. Borrower hereby reaffirms its grant of the security interests, pledges and other Liens granted to the Existing
Agent and Existing Lenders under the Existing Credit Agreement, as more fully described in Article 9 of this Agreement, and hereby
further grants to Agent, for the ratable benefit of the Lenders, to secure the payment and performance in full of all of the Obligations,
a continuing security interest in, and pledges to Agent, for the ratable benefit of the Lenders, the Collateral, wherever located, whether
now owned or hereafter acquired or arising, and all proceeds and products thereof. Borrower represents, warrants, and covenants that the
security interest granted herein is and shall at all times continue to be a first priority perfected security interest in the Collateral,
subject only to Permitted Liens that may have priority by operation of applicable Law or by the terms of a written intercreditor or subordination
agreement entered into by Agent.


 


4.2            Representations
and Covenants.


 


(a)            As
of the Closing Date, Borrower has no ownership interest in any Chattel Paper, letter of credit rights, commercial tort claims, instruments,
documents or investment property (other than equity interests in any Subsidiaries of Borrower disclosed on the Disclosure Schedule
attached hereto).


 


(b)            Borrower
shall deliver to Agent all tangible Chattel Paper and all instruments and documents owned by any Borrower and constituting part of the
Collateral duly endorsed and accompanied by duly executed instruments of transfer or assignment, all in form and substance satisfactory
to Agent. Borrower shall provide Agent with “control” (as in the Code) of all electronic Chattel Paper owned by any Borrower
and constituting part of the Collateral by having Agent identified as the assignee on the records pertaining to the single authoritative
copy thereof and otherwise complying with the applicable elements of control set forth in the Code. Borrower also shall deliver to Agent
all security agreements securing any such Chattel Paper and securing any such instruments. Borrower will mark conspicuously all such Chattel
Paper and all such instruments and documents with a legend, in form and substance satisfactory to Agent, indicating that such Chattel
Paper and such instruments and documents are subject to the security interests and Liens in favor of Agent created pursuant to this Agreement
and the Financing Documents.


 


(c)            Borrower
shall deliver to Agent all letters of credit on which any Borrower is the beneficiary and which give rise to letter of credit rights owned
by such Borrower which constitute part of the Collateral in each case duly endorsed and accompanied by duly executed instruments of transfer
or assignment, all in form and substance satisfactory to Agent. Borrower shall take any and all actions as may be necessary or desirable,
or that Agent may request, from time to time, to cause Agent to obtain exclusive “control” (as defined in the Code) of any
such letter of credit rights in a manner acceptable to Agent.


 


(d)            Borrower
shall promptly advise Agent upon any Borrower becoming aware that it has any interests in any commercial tort claim in excess of One Hundred
Fifty Thousand Dollars ($150,000) that constitutes part of the Collateral, which such notice shall include descriptions of the events
and circumstances giving rise to such commercial tort claim and the dates such events and circumstances occurred, the potential defendants
with respect such commercial tort claim and any court proceedings that have been instituted with respect to such commercial tort claims,
and Borrower shall, with respect to any such commercial tort claim in excess of One Hundred Fifty Thousand Dollars ($150,000), execute
and deliver to Agent such documents as Agent shall request to perfect, preserve or protect the Liens, rights and remedies of Agent with
respect to any such commercial tort claim.


 






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(e)            Except
for Accounts and Inventory in an aggregate amount of Three Hundred Thousand Dollars ($300,000), no Accounts or Inventory or other Collateral
shall at any time be in the possession or control of any warehouse, consignee, bailee or any of Borrower’s agents or processors
without prior written notice to Agent and the receipt by Agent, if Agent has so requested, of warehouse receipts, consignment agreements
or bailee lien waivers (as applicable) satisfactory to Agent prior to the commencement of such possession or control. Borrower shall,
upon the request of Agent, notify any such warehouse, consignee, bailee, agent or processor of the security interests and Liens in favor
of Agent created pursuant to this Agreement and the Financing Documents, instruct such Person to hold all such Collateral for Agent’s
account subject to Agent’s instructions and shall obtain an acknowledgement from such Person that such Person holds the Collateral
for Agent’s benefit.


 


(f)            Upon
request of Agent, Borrower shall promptly deliver to Agent any and all certificates of title, applications for title or similar evidence
of ownership of all such tangible personal property and shall cause Agent to be named as lienholder on any such certificate of title or
other evidence of ownership. Borrower shall not permit any such tangible personal property to become fixtures to real estate unless such
real estate is subject to a Lien in favor of Agent.


 


(g)            Each
Borrower hereby authorizes Agent to file without the signature of such Borrower one or more UCC financing statements relating to its Liens
on all or any part of the Collateral, which financing statements may list Agent as the “secured party” and such Borrower as
the “debtor” and which describe and indicate the collateral covered thereby as all or any part of the Collateral under the
Financing Documents in such jurisdictions as Agent from time to time determines are appropriate, and to file without the signature of
such Borrower any continuations of or corrective amendments to any such financing statements, in any such case in order for Agent to perfect,
preserve or protect the Liens, rights and remedies of Agent with respect to the Collateral. Each Borrower also ratifies its authorization
for Agent to have filed in any jurisdiction any initial financing statements or amendments thereto if filed prior to the date hereof.
Any financing statement may include a notice that any disposition of the Collateral, by either Borrower or any other Person, shall be
deemed to violate the rights of Agent and the Lenders under the Code.


 


(h)            As
of the Closing Date, no Borrower holds, and after the Closing Date, Borrower shall promptly notify Agent in writing upon creation or acquisition
by any Borrower of, any Collateral which constitutes a claim against any Governmental Authority, including, without limitation, the federal
government of the United States or any instrumentality or agency thereof, the assignment of which claim is restricted by any applicable
Law, including, without limitation, the federal Assignment of Claims Act and any other comparable Law. Upon the request of Agent, Borrower
shall take such steps as may be necessary or desirable, or that Agent may request, to comply with any such applicable Law.


 


(i)            Borrower
shall furnish to Agent from time to time any statements and schedules further identifying or describing the Collateral and any other information,
reports or evidence concerning the Collateral as Agent may reasonably request from time to time.


 






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(j)            Borrower
shall, and shall cause each Credit Party to, maintain its deposit accounts, transaction accounts, and primary investment accounts with
Silicon Valley Bank and its Affiliates.








 


5             REPRESENTATIONS
AND WARRANTIES


 


Borrower represents and warrants
as follows on the Closing Date and the date of each Credit Extension:


 


5.1            Due
Organization, Authorization: Power and Authority.


 


(a)            Each
Credit Party is duly existing and in good standing, as a Registered Organization in its respective jurisdiction of formation. Each Credit
Party is qualified and licensed to do business and is in good standing in any jurisdiction in which the conduct of its business or its
ownership of property requires that it be qualified except where the failure to do so could not reasonably be expected to have a Material
Adverse Change. The Financing Documents have been duly authorized, executed and delivered by each Credit Party and constitute legal, valid
and binding agreements enforceable in accordance with their terms. The execution, delivery and performance by each Credit Party of each
Financing Document executed or to be executed by it is in each case within such Credit Party’s powers.


 


(b)            The
execution, delivery and performance by each Credit Party of the Financing Documents to which it is a party do not (i) conflict with
any of such Credit Party’s organizational documents; (ii) contravene, conflict with, constitute a default under or violate
any Law; (iii) contravene, conflict or violate any applicable order, writ, judgment, injunction, decree, determination or award of
any Governmental Authority by which such Credit Party or any of its property or assets may be bound or affected; (iv) require any
action by, filing, registration, or qualification with, or Required Permit from, any Governmental Authority (except such Required Permits
which have already been obtained and are in full force and effect); or (v) constitute a default under or conflict with any Material
Agreement. No Credit Party is in default under any agreement to which it is a party or by which it is bound in which the default could
reasonably be expected to have a Material Adverse Change.


 


5.2            Litigation.
Except as disclosed on the Disclosure Schedule or, after the Closing Date, pursuant to Section 6.7, there are no actions,
suits, proceedings or investigations pending or, to the knowledge of the Responsible Officers, threatened in writing by or against any
Credit Party which involves the possibility of any judgment or liability of more than One Hundred Fifty Thousand Dollars ($150,000.00)
or that could result in a Material Adverse Change, or which questions the validity of the Financing Documents, or the other documents
required thereby or any action to be taken pursuant to any of the foregoing, nor does any Credit Party have reason to believe that any
such actions, suits, proceedings or investigations are threatened.


 


5.3            No
Material Deterioration in Financial Condition; Financial Statements. All financial statements for the Credit Parties delivered to
Agent or any Lender fairly present, in conformity with GAAP, in all material respects the consolidated financial condition and consolidated
results of operations of such Credit Party. There has been no material deterioration in the consolidated financial condition of any Credit
Party from the most recent financial statements and projections submitted to Agent or any Lender. There has been no material adverse deviation
from the most recent annual operating plan of Borrower delivered to Agent and Lenders.


 


5.4            Solvency.
The fair salable value of each Credit Party’s assets (including goodwill minus disposition costs) exceeds the fair value
of its liabilities. After giving effect to the transactions described in this Agreement, (a) no Credit Party is left with unreasonably
small capital in relation to its business as presently conducted, and (b) each Credit Party is able to pay its debts (including trade
debts) as they mature.


 






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5.5            Subsidiaries;
Investments. Borrower and its Subsidiaries do not own any stock, partnership interest or other equity securities, except for Permitted
Investments.


 








5.6            Tax
Returns and Payments; Pension Contributions. Each Credit Party has timely filed all required tax returns and reports, and each Credit
Party has timely paid all foreign, federal, state and material local taxes, assessments, deposits and contributions owed by such Credit
Party. Borrower is unaware of any claims or adjustments proposed for any of prior tax years of any Credit Party which could result in
additional taxes becoming due and payable by such Credit Party. Each Credit Party has paid all amounts necessary to fund all present pension,
profit sharing and deferred compensation plans in accordance with their terms, and no Credit Party has withdrawn from participation in,
or has permitted partial or complete termination of, or permitted the occurrence of any other event with respect to, any such plan which
could reasonably be expected to result in any liability of such Credit Party, including any liability to the Pension Benefit Guaranty
Corporation or its successors or any other Governmental Authority.


 


5.7            Disclosure
Schedule. All information set forth in the Disclosure Schedule is true, accurate and complete as of the date hereof. All information
set forth in the Perfection Certificate is true, accurate and complete as of the date hereof.


 


6            AFFIRMATIVE
COVENANTS


 


Borrower covenants and agrees
as follows:


 


6.1            Organization
and Existence; Government Compliance.


 


(a)            Each
Credit Party shall maintain its legal existence and good standing in its respective jurisdiction of formation and maintain qualification
in each jurisdiction in which the failure to so qualify could reasonably be expected to have a Material Adverse Change. If a Credit Party
is not now a Registered Organization but later becomes one, Borrower shall promptly notify Agent of such occurrence and provide Agent
with such Credit Party’s organizational identification number.


 


(b)            Each
Credit Party shall comply with all Laws, ordinances and regulations to which it or its business locations is subject, the noncompliance
with which could reasonably be expected to result in a Material Adverse Change. Each Credit Party shall obtain and keep in full force
and effect and comply with all of the Required Permits, except where failure to have or maintain compliance with or effectiveness of such
Required Permit could not reasonably be expected to result in a Material Adverse Change. Each Credit Party shall promptly provide copies
of any such obtained Required Permits to Agent. Borrower shall notify Agent within three (3) Business Days (but in any event prior
to Borrower submitting any requests for Credit Extensions or release of any reserves) of the occurrence of any facts, events or circumstances
known to a Borrower, whether threatened, existing or pending, that could cause any Required Permit to become limited, suspended or revoked.


 


6.2            Financial
Statements, Reports, Certificates.


 


(a)            Each
Credit Party shall deliver to Agent and each Lender: (i) as soon as available, but no later than thirty (30) days after the last
day of each month, a company prepared consolidated and consolidating balance sheet, income statement and cash flow statement covering
such Credit Party’s consolidated operations for such month certified by a Responsible Officer and in a form acceptable to Agent
and each Lender; (ii) as soon as available, but no later than one hundred eighty (180) days after the last day of a Credit Party’s
fiscal year, audited consolidated and consolidating financial statements prepared under GAAP, consistently applied, together with an unqualified
opinion on the financial statements from an independent certified public accounting firm acceptable to Agent and each Lender in its reasonable
discretion; (iii) as soon as available after approval thereof by such Credit Party’s governing board, but no later than sixty
(60) days after the last day of such Credit Party’s fiscal year, and as amended and/or updated, such Credit Party’s financial
projections for current fiscal year; (iv) within five (5) days of delivery, copies of all statements, reports and notices made
available to all of such Credit Party’s security holders; (v) in the event that such Credit Party is or becomes subject to
the reporting requirements under the Securities Exchange Act of 1934, as amended, within five (5) days of filing, all reports on
Form 10-K, 10-Q and 8-K filed with the Securities and Exchange Commission (“SEC”) or a link thereto on such Credit
Party’s or another website on the Internet; (vi) budgets, sales projections, operating plans and other financial information
reasonably requested by Agent or any Lender; (vii) as soon as available, but no later than thirty (30) days after the last day of
each month, copies of the month-end account statements for each Collateral Account maintained by a Credit Party, which statements may
be provided to Agent and each Lender by Borrower or directly from the applicable institution(s); (viii) within five (5) days
of delivery, copies of all statements, reports and notices made available to any holders of Permitted Convertible Indebtedness; and (ix) such
additional information, reports or statements regarding the Credit Parties or their respective businesses, contractors and subcontractors
as Agent or any Lender may from time to time reasonably request.


 






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(b)            Within
thirty (30) days after the last day of each month, Borrower shall deliver to Agent and each Lender with the monthly financial statements
described above, a duly completed Compliance Certificate signed by a Responsible Officer.


 


(c)            Borrower
shall cause each Credit Party to keep proper books of record and account in accordance with GAAP in which full, true and correct entries
shall be made of all dealings and transactions in relation to its business and activities. Upon prior written notice and during business
hours (which such limitations shall not apply if a Default or Event of Default has occurred), Borrower shall allow, and cause each Credit
Party to allow, Agent and Lenders to visit and inspect any properties of a Credit Party, to examine and make abstracts or copies from
any Credit Party’s books, to conduct a collateral audit and analysis of its operations and the Collateral to verify the amount and
age of the accounts, the identity and credit of the respective account debtors, to review the billing practices of the Credit Party and
to discuss its respective affairs, finances and accounts with their respective officers, employees and independent public accountants
as often as may reasonably be desired. Borrower shall reimburse Agent and each Lender for all reasonable costs and expenses associated
with such visits and inspections; provided, however, that Borrower shall be required to reimburse Agent and each Lender
for such costs and expenses for no more than two (2) such visits and inspections per twelve (12) month period unless a Default or
Event of Default has occurred during such period.


 


(d)            Borrower
shall, and shall cause each Credit Party to, deliver to Agent and each Lender, within five (5) days after the same are sent or received,
copies of all material correspondence, reports, documents and other filings with any Governmental Authority that could reasonably be expected
to have a material effect on any of the Required Permits material to Borrower’s business or otherwise on the operations of Borrower
or any of its Subsidiaries.


 


6.3            Maintenance
of Property. Borrower shall cause all equipment and other tangible personal property other than Inventory to be maintained and preserved
in the same condition, repair and in working order as of the date hereof, ordinary wear and tear excepted, and shall promptly make or
cause to be made all repairs, replacements and other improvements in connection therewith that are necessary or desirable to such end.
Borrower shall cause each Credit Party to keep all Inventory in good and marketable condition, free from material defects. Returns and
allowances between a Credit Party and its Account Debtors shall follow the Credit Party’s customary practices as they existed at
the Third Restatement Closing Date. Borrower shall promptly notify Agent of all returns, recoveries, disputes and claims that involve
more than Three Hundred Thousand Dollars ($300,000) of Inventory collectively among all Credit Parties.


 






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6.4            Taxes;
Pensions. Borrower shall timely file and cause each Credit Party to timely file, all required tax returns and reports and timely pay,
and cause each Credit Party to timely pay, all foreign, federal, state, and local taxes, assessments, deposits and contributions owed,
and shall deliver to Agent, on demand, appropriate certificates attesting to such payments. Borrower shall pay, and cause each Credit
Party to pay, all amounts necessary to fund all present pension, profit sharing and deferred compensation plans in accordance with their
terms. Notwithstanding the foregoing, a Credit Party may defer payment of any contested taxes, provided, however, that such
Credit Party (a) in good faith contests its obligation to pay the taxes by appropriate proceedings promptly and diligently instituted
and conducted, (b) notifies Agent in writing of the commencement of, and any material development in, the proceedings, and (c) posts
bonds or takes any other steps required to prevent the Governmental Authority levying such contested taxes from obtaining a Lien upon
any of the Collateral.


 


6.5            Insurance.
Borrower shall, and shall cause each Credit Party to, keep its business and the Collateral insured for risks and in amounts standard for
companies in Borrower’s industry and location and as Agent may reasonably request. Insurance policies shall be in a form, with companies,
and in amounts that are satisfactory to Agent. All property policies shall have a lender’s loss payable endorsement showing Agent
as sole lender’s loss payee and waive subrogation against Agent, and all liability policies shall show, or have endorsements showing,
Agent as an additional insured. No other loss payees may be shown on the policies unless Agent shall otherwise consent in writing. If
required by Agent, all policies (or the loss payable and additional insured endorsements) shall provide that the insurer shall endeavor
to give Agent at least thirty (30) days’ notice before canceling, amending, or declining to renew its policy. At Agent’s request,
Borrower shall deliver certified copies of all such Credit Party insurance policies and evidence of all premium payments. If any Credit
Party fails to obtain insurance as required under this Section 6.5 or to pay any amount or furnish any required proof of payment
to third persons and Agent, Agent may make all or part of such payment or obtain such insurance policies required in this Section 6.5,
and take any action under the policies Agent deems prudent. Each Borrower hereby waives any rights against Agent and Lenders for any property
damages or claims to the extent the same is insured or required to be insured hereunder.


 


6.6            Collateral
Accounts.


 


(a)            Borrower
shall, and shall cause each Credit Party to, provide Agent five (5) days prior written notice before establishing any Collateral
Account at or with any bank or financial institution. In addition, for each Collateral Account that any Credit Party at any time maintains,
Borrower shall, and shall cause each Credit Party to, cause the applicable bank or financial institution at or with which any Collateral
Account is maintained to execute and deliver a Control Agreement or other appropriate instrument with respect to such Collateral Account
to perfect Agent’s Lien in such Collateral Account in accordance with the terms hereunder, which Control Agreement may not be terminated
without prior written consent of Agent. The provisions of the previous sentence shall not apply to deposit accounts exclusively used for
payroll, payroll taxes and other employee wage and benefit payments to or for the benefit of a Credit Party’s employees and identified
to Agent by Borrower as such; provided, however, that at all times Borrower shall maintain one or more separate Deposit
Accounts to hold any and all amounts to be used for payroll, payroll taxes and other employee wage and benefit payments, and shall not
commingle any monies allocated for such purposes with funds in any other Deposit Account.


 


(b)            Reserved.


 






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6.7            Notices
of Material Agreements, Litigation and Defaults; Cooperation in Litigation. Promptly (and in any event within three (3) Business
Days), (a) upon Borrower becoming aware of the existence of any Event of Default or event which, with the giving of notice or passage
of time, or both, would constitute an Event of Default or (b) upon the execution and delivery of any Material Agreement and each
material amendment, consent, waiver or other modification, and each notice of termination or default or similar notice delivered
to or by a Credit Party in connection with any Material Agreement, or (c) upon Borrower becoming aware of (or having reason to believe
any of the following are pending or threatened in writing) any action, suit, proceeding or investigation by or against Borrower or any
Credit Party which involves the possibility of any judgment or liability of more than One Hundred Fifty Thousand Dollars ($150,000) or
that could result in a Material Adverse Change, or which questions the validity of any of the Financing Documents, or the other documents
required thereby or any action to be taken pursuant to any of the foregoing, Borrower shall give written notice to Agent and each Lender
of such occurrence, and such further information (including copies of such documentation) as Agent or any Lender shall reasonably request.
From the date hereof and continuing through the termination of this Agreement, Borrower shall, and shall cause each Credit Party to, make
available to Agent and each Lender, without expense to Agent or any Lender, each Credit Party’s officers, employees and agents and
books, to the extent that Agent or any Lender may deem them reasonably necessary to prosecute or defend any third-party suit or proceeding
instituted by or against Agent or any Lender with respect to any Collateral or relating to a Credit Party.


 








6.8            Creation/Acquisition
of Subsidiaries.  Except to the extent otherwise provided herein with respect to a Securities Subsidiary or Ocular Europe, in
the event Borrower or any Subsidiary creates or, to the extent permitted hereunder, acquires any Subsidiary, Borrower and such Subsidiary
shall promptly (and in any event within five (5) Business Days of such creation or acquisition) notify Agent of the creation or acquisition
of such new Subsidiary and take all such action as may be reasonably required by Agent or the Required Lenders to cause each such Subsidiary
to become a co-Borrower hereunder or to guarantee the Obligations of Borrower under the Financing Documents and, in each case, grant a
continuing pledge and security interest in and to the assets of such Subsidiary (substantially as described on Exhibit A hereto);
and Borrower shall grant and pledge to Agent, for the ratable benefit of the Lenders, a perfected security interest in the stock, units
or other evidence of ownership of each Subsidiary (the foregoing collectively, the “Joinder Requirements”); provided,
that Borrower shall not be permitted to make any Investment in such Subsidiary until such time as Borrower has satisfied the Joinder Requirements.


 


6.9            Use
of Proceeds. Borrower shall use the proceeds of the Credit Extensions solely for (a) transaction fees incurred in connection
with the Financing Documents, (b) for working capital needs of Borrower and its Subsidiaries, and (c) any other Permitted Purpose
specified in the Credit Facility Schedule for such Credit Facility. No portion of the proceeds of the Credit Extensions will be
used for family, personal, agricultural or household use.


 


6.10          Hazardous
Materials; Remediation.


 


(a)            If
any release or disposal of Hazardous Materials shall occur or shall have occurred on any real property or any other assets of any Borrower
or any other Credit Party, such Borrower will cause, or direct the applicable Credit Party to cause, the prompt containment and removal
of such Hazardous Materials and the remediation of such real property or other assets as is necessary to comply with all Laws and to preserve
the value of such real property or other assets. Without limiting the generality of the foregoing, each Borrower shall, and shall cause
each other Credit Party to, comply with each Law requiring the performance at any real property by any Borrower or any other Credit Party
of activities in response to the release or threatened release of a Hazardous Material.


 






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(b)            Borrower
will provide Agent within thirty (30) days after written demand therefor with a bond, letter of credit or similar financial assurance
evidencing to the reasonable satisfaction of Agent that sufficient funds are available to pay the cost of removing, treating and disposing
of any Hazardous Materials or Hazardous Materials Contamination and discharging any assessment which may be established on any property
as a result thereof, such demand to be made, if at all, upon Agent’s determination that the failure to remove, treat or dispose
of any Hazardous Materials or Hazardous Materials Contamination, or the failure to discharge any such assessment could reasonably be expected
to have a Material Adverse Change.


 


(c)            If
there is any conflict between this Section 6.10 and any environmental indemnity agreement which is a Financing Document, the
environmental indemnity agreement shall govern and control.


 


6.11         Power
of Attorney. Each of the officers of Agent is hereby irrevocably made, constituted and appointed the true and lawful attorney for
each Borrower (without requiring any of them to act as such) with full power of substitution to do the following: (a) pay, contest
or settle any Lien, charge, encumbrance, security interest, and adverse claim in or to the Collateral (in each case, so long as no Default
or Event of Default has occurred, other than Permitted Liens), or any judgment based thereon, or otherwise take any action to terminate
or discharge the same; (b) so long as Agent has provided not less than three (3) Business Days’ prior written notice to
Borrower to perform the same and Borrower has failed to take such action, (i) execute in the name of any Person comprising Borrower
any schedules, assignments, instruments, documents, and statements that Borrower is obligated to give Agent under this Agreement or that
Agent or any Lender deems necessary to perfect or better perfect Agent’s security interest or Lien in any Collateral, (ii) do
such other and further acts and deeds in the name of Borrower that Agent may deem necessary or desirable to enforce, protect or preserve
any Collateral or its rights therein, including, but not limited to, to sign Borrower’s name on any invoice or bill of lading for
any Account or drafts against Account Debtors; and (iii) after the occurrence and during the continuance of an Event of Default,
(A) endorse the name of any Borrower upon any and all checks, drafts, money orders, and other instruments for the payment of money
that are payable to Borrower; (B) make, settle, and adjust all claims under Borrower’s insurance policies; (C) take any
action any Credit Party is required to take under this Agreement or any other Financing Document; (D) transfer the Collateral into
the name of Agent or a third party as the Code permits; (E) exercise any rights and remedies described in this Agreement or the other
Financing Documents; and (F) do such other and further acts and deeds in the name of Borrower that Agent may deem necessary or desirable
to enforce its rights with regard to any Collateral.


 


6.12         Further
Assurances. Borrower shall, and shall cause each Credit Party to, promptly execute any further instruments and take further action
as Agent reasonably requests to perfect or better perfect or continue Agent’s Lien in the Collateral or to effect the purposes of
this Agreement or any other Financing Document.


 


6.13         Post-Closing
Obligations. Borrower shall, and shall cause each Credit Party to, complete each of the post-closing obligations and/or deliver to
Agent each of the documents, instruments, agreements and information, if any, listed on the Post-Closing Obligations Schedule attached
hereto, on or before the date set forth for each such item thereon (as may be extended by the Agent in writing in its sole discretion),
each of which shall be completed or provided in form and substance satisfactory to Agent and Lenders.


 


6.14         Disclosure
Schedule. Borrower shall, in the event of any information in the Disclosure Schedule becoming outdated, inaccurate, incomplete
or misleading, deliver to Agent, together with the next Compliance Certificate required to be delivered under this Agreement for a calendar
month ending March 31, June 30, September 30 or December 31, a proposed update to the Disclosure Schedule correcting
all outdated, inaccurate, incomplete or misleading information. With respect to any proposed updates to the Disclosure Schedule
involving Permitted Liens, Permitted Indebtedness or Permitted Investments, Agent will replace the Disclosure Schedule attached
hereto with such proposed update only if such updated information is consistent with the definitions of and limitations herein pertaining
to Permitted Liens, Permitted Indebtedness or Permitted Investments. With respect to any proposed updates to the Disclosure Schedule
involving other matters, Agent will replace the applicable portion of the Disclosure Schedule attached hereto with such proposed
update upon Agent’s approval thereof.


 






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6.15         Securities
Subsidiaries. Borrower shall and shall cause each Securities Subsidiary to comply with the following requirements at all times:


 


(a)            If
at any time following the Closing Date, any Securities Subsidiary ceases to be a “Security Corporation” as defined in 830
Code of Mass. Regulations 63.38B.1, Borrower shall promptly (but in any event within thirty (30) days or such later period as Agent may
agree in its sole discretion) cause such Securities Subsidiary to comply with the Joinder Requirements in Section 6.8 as if it were
a newly created Subsidiary and not a Securities Subsidiary.


 


(b)            Borrower
shall not, nor shall it permit any of its Subsidiaries to, make any Investment in or otherwise make any Transfer of assets or property
to any Securities Subsidiary other than Investments of cash and cash equivalents specifically permitted pursuant to clause (j) of
the definition of Permitted Investments.


 


(c)            No
Securities Subsidiary shall have any assets other than its interest in the Deposit Accounts and Securities Accounts and cash and cash
equivalents held therein from time to time in accordance with the terms of this Agreement.


 


(d)            The
Securities Subsidiaries shall not incur any Indebtedness or suffer to exist any Liens in respect of its assets other than Liens permitted
pursuant to clause (f) of the definition of Permitted Liens.


 


(e)            Borrower
shall ensure that Agent has received, for the benefit of Lenders, and at all times maintains a first priority perfected security interest
in 100% of the Equity Interests of each Securities Subsidiary pursuant to the terms of a pledge agreement in form and substance reasonably
satisfactory to Agent.


 


(f)            Borrower
shall not, nor shall it permit any Subsidiary to, make any Investment in or otherwise Transfer any cash or cash equivalents to any Securities
Subsidiary unless, immediately before and after giving effect to such Investment or Transfer, Borrower and the other Credit Parties have
Borrower Unrestricted Cash in an amount equal to or greater than the Borrower Unrestricted Cash Threshold.


 


(g)            At
any time when the aggregate amount of Borrower Unrestricted Cash is less than the Borrower Unrestricted Cash Threshold (each such date,
a “Borrower Unrestricted Cash Trigger Date”), Borrower shall ensure that, on or before the date that is five (5) Business
Days following such Borrower Unrestricted Cash Trigger Date, either (a) the aggregate amount of Borrower Unrestricted Cash is in
an amount equal to or greater than the Borrower Unrestricted Cash Threshold or (b) each Securities Subsidiary is dissolved and all
cash and cash equivalents held by or in the name of each such Securities Subsidiary are transferred into a Collateral Account of Borrower
that is subject to a Deposit Account Control Agreement or Securities Account Control Agreement, as applicable.


 


Except to the extent required under this Section 6.15,
Borrower shall not be required to comply or to cause a Securities Subsidiary to comply with the Joinder Requirements in Section 6.8.
In addition, for the avoidance of doubt, unless a Securities Subsidiary becomes a co-borrower or guarantees the Obligations, it is not
a “Credit Party” hereunder.


 






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7              NEGATIVE
COVENANTS


 


Borrower shall not do, nor
shall it permit any Credit Party to do, any of the following without the prior written consent of Agent and the Required Lenders:


 


7.1           Dispositions.
Convey, sell, abandon, lease, license, transfer, assign or otherwise dispose of (collectively, “Transfer”) all or any
part of its business or property, except for (a) sales, transfers or dispositions of Inventory in the Ordinary Course of Business;
(b) sales or abandonment of worn-out or obsolete Equipment; or (c) non-exclusive licenses of patent rights of Borrower or its
Subsidiaries granted to third parties in the Ordinary Course of Business and that does not result in a legal transfer of title to the
licensed property.


 


7.2           Changes
in Business, Management, Ownership or Business Locations. (a) Engage in any business other than the businesses currently engaged
in by Borrower or such Subsidiary, as applicable, or reasonably related thereto; (b) liquidate or dissolve; (c) (i) have
a change in Chief Executive Officer where a suitable permanent replacement, as approved by Borrower’s board of directors, has not
been named and hired by not later than sixty (60) days after such change, or (ii) enter into any transaction or series of related
transactions which would result in a Change in Control; (d) add any new offices or business locations, or enter into any new leases
with respect to existing offices or business locations (unless such new or existing offices or business locations contain less than Three
Hundred Thousand Dollars ($300,000) in Borrower’s assets or property and do not contain any of Borrower’s Books) without first
delivering a fully-executed Access Agreement to Agent; (e) change its jurisdiction of organization; (f) change its organizational
structure or type; (g) change its legal name; or (h) change any organizational number (if any) assigned by its jurisdiction
of organization.


 


7.3           Mergers
or Acquisitions. Merge or consolidate with any other Person, or acquire all or substantially all of the capital stock or property
of another Person; provided, however, that a Subsidiary of Borrower may merge or consolidate into another Subsidiary that is a
Borrower, so long as (a) Borrower has provided Agent and each Lender with prior written notice of such transaction, (b) a Person
already comprising the Borrower shall be the surviving legal entity, (c) Borrower’s tangible net worth is not thereby reduced,
(d) no Event of Default has occurred and is continuing prior thereto or arises as a result therefrom, and (e) Borrower shall
be in compliance with the covenants set forth in this Agreement both before and after giving effect to such transaction.


 


7.4           Indebtedness.
Create, incur, assume, or be liable for any Indebtedness other than Permitted Indebtedness.


 


7.5           Encumbrance.
(a) Create, incur, allow, or suffer any Lien on any of its property, except for Permitted Liens, (b) permit any Collateral to
fail to be subject to the first priority security interest granted herein except for Permitted Liens that may have priority by operation
of applicable Law or by the terms of a written intercreditor or subordination agreement entered into by Agent, or (c) enter into
any agreement, document, instrument or other arrangement (except with or in favor of Agent for the ratable benefit of Lenders) with any
Person which directly or indirectly prohibits or has the effect of prohibiting Borrower or any Subsidiary from assigning, mortgaging,
pledging, granting a security interest in or upon, or encumbering any of Borrower’s or any Subsidiary’s Collateral or Intellectual
Property, except as is otherwise permitted in the definition of “Permitted Liens” herein.


 


7.6           Maintenance
of Collateral Accounts. Maintain any Collateral Account, except pursuant to the terms of Section 6.6 hereof.


 






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7.7           Distributions;
Investments; Margin Stock. (a) Pay any dividends (other than dividends payable solely in common stock) or make any distribution
or payment with respect to or redeem, retire or purchase or repurchase any of its equity interests (other than repurchases pursuant to
the terms of employee stock purchase plans, employee restricted stock agreements or similar plans), or (b) directly or indirectly
make any Investment (including, without limitation, any additional Investment in any Subsidiary) other than Permitted Investments. Without
limiting the foregoing, Borrower shall not, and shall not permit any of its Subsidiaries to, purchase or carry Margin Stock.


 


7.8           Transactions
with Affiliates. Directly or indirectly enter into or permit to exist any material transaction with any Affiliate of any Credit Party,
except for (a) transactions that are in the Ordinary Course of Business, upon fair and reasonable terms that are no less favorable
to Borrower than would be obtained in an arm’s length transaction with a non-affiliated Person, (b) transactions with Subsidiaries
that are designated as a Borrower hereunder and that are not otherwise prohibited by Article 7 of this Agreement, and (c) transactions
permitted by Section 7.7 of this Agreement.


 


7.9           Ocular
Europe. Notwithstanding anything to the contrary in this Agreement or the other Financing Documents, with respect to Ocular Europe:


 


(a)           permit
Ocular Europe to own any assets other than cash in an aggregate amount not to exceed $25,000 at any time, books and records and licenses
and permits necessary to maintain its legal existence;


 


(b)           permit
Ocular Europe to incur any Indebtedness;


 


(c)           permit
Ocular Europe to merge or otherwise consolidate or combine with any Person, other than the Borrower or a Credit Party;


 


(d)           Permit
Ocular Europe to grant a Lien in favor of any Person; or


 


(e)            Transfer
to Ocular Europe any of Borrower’s assets or make any Investments in Ocular Europe except as permitted under clause (a) and
in no event more than $25,000 in cash during any fiscal year;


 


(f)            Pledge
the equity interests of Ocular Europe in favor of any Person.


 


Unless an Event of Default occurs under this Section 7.9
or Agent (at the direction of Required Lenders) otherwise requests, Borrower shall not be required to comply or to cause Ocular Europe
to comply with Section 6.8 hereof. In addition, for the avoidance of doubt, unless Ocular Europe becomes a co-borrower or
guarantees the Obligations, it is not a “Credit Party” hereunder. Further, upon becoming a “Credit Party” hereunder,
this Section 7.9 shall no longer apply.


 


7.10         Compliance.
Become an “investment company” or a company controlled by an “investment company”, under the Investment Company
Act of 1940, as amended or undertake as one of its important activities extending credit to purchase or carry margin stock (as defined
in Regulation U of the Board of Governors of the Federal Reserve System), or use the proceeds of any Credit Extension for that purpose;
fail to meet the minimum funding requirements of ERISA, permit a Reportable Event or Prohibited Transaction, as defined in ERISA, to occur;
fail to comply with the Federal Fair Labor Standards Act or violate any other Law or regulation, if the violation could reasonably be
expected to have a Material Adverse Change; withdraw from participation in, permit partial or complete termination of, or permit the occurrence
of any other event with respect to, any present pension, profit sharing and deferred compensation plan which could reasonably be expected
to result in any liability of Borrower, including any liability to the Pension Benefit Guaranty Corporation or its successors or any other
Governmental Authority.


 






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7.11         Amendments
to Organization Documents and Material Agreements. Amend, modify or waive any provision of (a) any Material Agreement in a manner
that is materially adverse to Borrower, that is adverse to Agent or any Lender, that pertains to rights to assign or grant a security
interest in such Material Agreement or that could or could reasonably be expected to result in a Material Adverse Change, or (b) any
of its organizational documents (other than a change in registered agents, or a change that could not adversely affect the rights of Agent
or Lenders hereunder, but, for the avoidance of doubt, under no circumstances a change of its name, type of organization or jurisdiction
of organization), in each case, without the prior written consent of Agent. Borrower shall provide to Agent copies of all amendments,
waivers and modifications of any Material Agreement or organizational documents.


 


7.12         Compliance
with Anti-Terrorism Laws. Directly or indirectly, knowingly enter into any documents, instruments, agreements or contracts with any
Person listed on the OFAC Lists. Borrower shall immediately notify Agent if Borrower has knowledge that Borrower or any Subsidiary or
Affiliate is listed on the OFAC Lists or (a) is convicted on, (b) pleads nolo contendere to, (c) is indicted on,
or (d) is arraigned and held over on charges involving money laundering or predicate crimes to money laundering. Borrower will not,
nor will Borrower permit any Subsidiary or Affiliate to, directly or indirectly, (i) conduct any business or engage in any transaction
or dealing with any Blocked Person, including, without limitation, the making or receiving of any contribution of funds, goods or services
to or for the benefit of any Blocked Person, (ii) deal in, or otherwise engage in any transaction relating to, any property or interests
in property blocked pursuant to Executive Order No. 13224, any similar executive order or other Anti-Terrorism Law, or (iii) engage
in or conspire to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate,
any of the prohibitions set forth in Executive Order No. 13224 or other Anti-Terrorism Law. Agent hereby notifies Borrower that pursuant
to the requirements of Anti-Terrorism Laws, and Agent’s policies and practices, Agent is required to obtain, verify and record certain
information and documentation that identifies Borrower and its principals, which information includes the name and address of Borrower
and its principals and such other information that will allow Agent to identify such party in accordance with Anti-Terrorism Laws.


 


7.13         Permitted
Convertible Indebtedness. (a) Make or permit any payment on any Permitted Convertible Indebtedness, including any payment of
interest thereon, except for Permitted Payments; (b) repurchase, redeem, or prepay any principal in respect of the Permitted Convertible
Indebtedness, or (c) amend any provision in any Permitted Convertible Indebtedness Document other than as may be expressly permitted
pursuant to the terms of the Subordination Agreement. Without limiting the foregoing, in no event shall Borrower elect to redeem any Permitted
Convertible Indebtedness, or elect a Cash Settlement or Combination Settlement under (and as defined in) the Permitted Convertible Indebtedness
Documents or make any Repurchase (as defined in the Permitted Convertible Indebtedness Documents) of any Permitted Convertible Indebtedness.


 


8              LiFE
SCIENCES PROVISIONS.


 


8.1           Life
Sciences Covenants.


 


(a)            As
used in this Agreement, the following terms have the following meanings:


 


“DEA” means
the Drug Enforcement Administration of the United States of America, and any successor agency thereof.


 


“Drug
Application” means a new drug application, an abbreviated drug application, or a product license application for any Product,
as appropriate, as those terms are defined in the FDCA.


 


“FDA” means
the Food and Drug Administration of the United States of America, or any successor entity thereto.


 






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“FDCA”
means the Federal Food, Drug and Cosmetic Act, as amended, 21 U.S.C. Section 301 et seq., and all regulations promulgated thereunder.


 


“Material
Intangible Property” means all of Borrower’s Intellectual Property and license or sublicense agreements
or other agreements with respect to rights in Intellectual Property that are material to the condition (financial or other), business
or operations of Borrower.


 


“Products”
means any products manufactured, sold, developed, tested or marketed by any Borrower or any of its Subsidiaries, including without limitation,
those products set forth on the Products Schedule (as updated from time to time in accordance with Section 8.1(d));
provided, however, that if Borrower shall fail to comply with the obligations under Section 8.1(d) to give notice
to Agent and each Lender and update the Products Schedule prior to manufacturing, selling, developing, testing or marketing any
new Product, any such improperly undisclosed Product shall be deemed to be included in this definition.


 


“Registered Intellectual
Property” means any patent, registered trademark or servicemark, registered copyright, registered mask work, or any pending
application for any of the foregoing.


 


(a)            [Reserved];


 


(b)            Borrower
represents and warrants as follows at all times unless expressly provided below:


 


(i)            Intellectual
Property and License Agreements. A list of all of Intellectual Property of each Credit Party and all license agreements, sublicenses,
or other rights of any Credit Party to use Intellectual Property (including all in-bound license agreements, but excluding over-the-counter
software that is commercially available to the public), as of the Closing Date and, as updated pursuant to Section 8.1(d),
is set forth on the Intangible Assets Schedule, which indicates, for each item of property: (A) the name of the Credit Party
owning such Intellectual Property or licensee to such license agreement; (B) the Credit Party’s identifier for such property
(i.e., name of patent, license, etc.), (C) whether such property is Intellectual Property (or application therefor) owned by
a Credit Party or is property to which a Credit Party has rights pursuant to a license agreement, and (D) the expiration date of
such Intellectual Property or license agreement. In the case of any Material Intangible Property that is a license agreement, the Intangible
Assets Schedule further indicates, for each: (1) the name and address of the licensor, (2) the name and date of the agreement
pursuant to which such item of Material Intangible Property is licensed, (3) whether or not such license agreement grants an exclusive
license to a Credit Party, (4) whether there are any purported restrictions in such license agreement as to the ability of a Credit
Party to grant a security interest in and/or to transfer any of its rights as a licensee under such license agreement, and (5) whether
a default under or termination of such license agreement could interfere with Agent’s right to sell or assign such license or any
other Collateral. Except as noted on the Intangible Assets Schedule, each Credit Party is the sole owner of its Intellectual Property,
free and clear of any Liens. Each patent is valid and enforceable to the knowledge of the Borrower and no part of the Material Intangible
Property has been judged invalid or unenforceable, in whole or in part, and to the best of Borrower’s knowledge, no claim has been
made that Borrower’s use of any part of the Intellectual Property violates the rights of any third party.


 


(ii)            Regulatory
Status.


 


(A)            All
Products and all Required Permits are listed on the Products Schedule and Required Permits Schedule (as updated from time
to time pursuant to Section 8.1(d)), and Borrower has delivered to Agent and each Lender a copy of all Required Permits requested
by Agent and such Lender as of the date hereof or to the extent requested by Agent or such Lender pursuant to Section 8.1(d).


 






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(B)            Without
limiting the generality of Section 8.1 above, as of the date of this Agreement and on each subsequent date that the representations
and warranties in this Agreement are brought down or remade, with respect to any Product being tested or manufactured, Borrower and its
Subsidiaries have received, and such Product is the subject of, all Required Permits needed in connection with the testing or manufacture
of such Product as such testing or manufacturing is currently being conducted by or on behalf of Borrower, and Borrower and its Subsidiaries
have not received any notice from any applicable Governmental Authority, specifically including the FDA, that such Governmental Authority
is conducting an investigation or review of (1) Borrower’s or such Subsidiary’s manufacturing facilities and processes
for such Product which have disclosed any material deficiencies or violations of Laws and/or the Required Permits related to the manufacture
of such Product, or (2) any such Required Permit or that any such Required Permit has been revoked or withdrawn, nor has any such
Governmental Authority issued any order or recommendation stating that the development, testing and/or manufacturing of such Product should
cease.


 


(C)            Without
limiting the generality of Section 8.1 above, as of the date of this Agreement and on each subsequent date that the representations
and warranties in this Agreement are brought down or remade, with respect to any Product marketed or sold by Borrower or its Subsidiaries,
Borrower and its Subsidiaries have received, and such Product is the subject of, all Required Permits needed in connection with the marketing
and sales of such Product as currently being marketed or sold by Borrower or its Subsidiaries, and Borrower and its Subsidiaries have
not received any notice from any applicable Governmental Authority, specifically including the FDA, that such Governmental Authority is
conducting an investigation or review of any such Required Permit or approval or that any such Required Permit has been revoked or withdrawn,
nor has any such Governmental Authority issued any order or recommendation stating that such marketing or sales of such Product cease
or that such Product be withdrawn from the marketplace.


 


(D)            Without
limiting the generality of Section 8.1 above, as of the date of this Agreement and on each subsequent date that the representations
and warranties in this Agreement are brought down or remade, (i) there have been no adverse clinical test results which have or could
reasonably be expected to result in a Material Adverse Change, and (ii) there have been no Product recalls or voluntary Product withdrawals
from any market.


 


(E)            As
of the date of this Agreement and on each subsequent date that the representations and warranties in this Agreement are brought down or
remade, Borrower and its Subsidiaries have not experienced any significant failures in its manufacturing of any Product such that the
amount of such Product successfully manufactured by Borrower or its Subsidiaries in accordance with all specifications thereof and the
required payments related thereto in any month shall decrease significantly with respect to the quantities of such Product produced in
the prior month.


 


(c)            Borrower
covenants and agrees as follows:


 


(i)            [Reserved.]


 






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(ii)            Borrower
shall own, or be licensed to use or otherwise have the right to use, all Material Intangible Property. All Material Intangible Property
of Borrower is and shall be fully protected and/or duly and properly registered, filed or issued in the appropriate office and jurisdictions
for such registrations, filings or issuances, except where the failure to do so would not reasonably be expected to result in a Material
Adverse Change. Borrower shall not become a party to, nor become bound by, any material license or other agreement with respect to which
Borrower is the licensee that prohibits or otherwise restricts Borrower from granting a security interest in Borrower’s interest
in such license or agreement or other property. Borrower shall at all times conduct its business without infringement or claim of infringement
of any Intellectual Property rights of others. Borrower shall do the following, to the extent it determines, in the exercise of its reasonable
business judgment, that it is prudent to do so: (A) protect, defend and maintain the validity and enforceability of its Material
Intangible Property; (B) promptly advise Agent and each Lender in writing of material infringements of its Material Intangible Property;
and (C) not allow, without Agent’s and Required Lenders’ prior written consent, any Material Intangible Property to be
abandoned, invalidated, forfeited or dedicated to the public or to become unenforceable. If Borrower (1) obtains any patent, registered
trademark or servicemark, registered copyright, registered mask work, or notice of any pending application for any of the foregoing (other
than copyrights, mask works, and related applications, which are addressed below), whether as owner, licensee or otherwise, or (2) applies
for any patent or the registration of any trademark or servicemark, then concurrently with the delivery of an updated Intangible Assets
Schedule as required under clause (iv) below, Borrower shall provide written notice thereof to Agent and each Lender and
shall execute such intellectual property security agreements (which shall be filed in the United States Patent and Trademark Office) and
other documents, provide such other information (including, without limitation, copies of applications) and take such other actions as
Agent or the Required Lenders shall request in its or their, as applicable, good faith business judgment to perfect and maintain a first
priority perfected security interest in favor of Agent, for the ratable benefit of Lenders, in such Intellectual Property. If Borrower
decides to register any copyrights or mask works in the United States Copyright Office, Borrower shall: (x) provide Agent with at
least fifteen (15) days prior written notice of Borrower’s intent to register such copyrights or mask works together with a copy
of the application it intends to file with the United States Copyright Office (excluding Exhibits thereto); (y) execute an intellectual
property security agreement and such other documents and provide such other information and take such other actions as Agent or Required
Lenders may request in its or their, as applicable, good faith business judgment to perfect and maintain a first priority perfected security
interest in favor of Agent, for the ratable benefit of the Lenders, in the copyrights or mask works intended to be registered with the
United States Copyright Office; and (z) record such intellectual property security agreement with the United States Copyright Office
contemporaneously with filing the copyright or mask work application(s) with the United States Copyright Office. Borrower shall promptly
provide to Agent and each Lender copies of all applications that it files for patents or for the registration of trademarks, servicemarks,
copyrights or mask works.


 


(iii)            In
connection with the development, testing, manufacture, marketing or sale of each and any Product by a Credit Party, such Credit Party
shall comply fully and completely in all respects with all Required Permits at all times issued by any Governmental Authority the noncompliance
with which could have a Material Adverse Change, specifically including the FDA, with respect to such development, testing, manufacture,
marketing or sales of such Product by such Credit Party as such activities are at any such time being conducted by such Credit Party.


 


(iv)            If,
after the Closing Date, Borrower acquires and/or develops any new Registered Intellectual Property, or enters or becomes bound by any
additional license or sublicense agreement or other agreement with respect to rights in Intellectual Property (other than over-the-counter
software that is commercially available to the public), and upon any other material change in Borrower’s Material Intangible Property
from that listed on the Intangible Assets Schedule, then together with the next Compliance Certificate required to be delivered
after such event under this Agreement for a calendar month ending March 31, June 30, September 30 or December 31,
Borrower shall deliver to Agent and each Lender an updated Intangible Assets Schedule reflecting same. Borrower shall take such
steps as Agent or the Required Lenders request to obtain the consent of, or waiver by, any person whose consent or waiver is necessary
for (x) all licenses or agreements to be deemed “Collateral” and for Agent to have a security interest in it that might
otherwise be restricted or prohibited by Law or by the terms of any such license or agreement, whether now existing or entered into in
the future, and (y) Agent to have the ability in the event of a liquidation of any Collateral to dispose of such Collateral in accordance
with Agent’s rights and remedies under this Agreement and the other Financing Documents.


 






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(v)            If,
after the Closing Date, Borrower determines to manufacture, sell, develop, test or market any new Product, then together with the next
Compliance Certificate required to be delivered after such determination under this Agreement for a calendar month ending March 31,
June 30, September 30 or December 31, Borrower shall give written notice to Agent and each Lender of such determination
(which shall include a brief description of such Product, plus a list of all Required Permits relating to such new Product (and a copy
of such Required Permits if requested by Agent or such Lender) and/or Borrower’s manufacture, sale, development, testing or marketing
thereof issued or outstanding as of the date of such notice), along with a copy of an updated Intangible Assets Schedule, Products
Schedule and Required Permits Schedule; provided, however, that if Borrower shall at any time obtain any new or additional
Required Permits from the FDA, DEA, or parallel state or local authorities, or foreign counterparts of the FDA, DEA, or parallel state
or local authorities, with respect to any Product which has previously been disclosed to Agent or any Lender, then together with the next
Compliance Certificate required to be delivered under this Agreement for a calendar month ending March 31, June 30, September 30
or December 31, Borrower shall provide Agent and each Lender with a copy of an updated Required Permits Schedule reflecting
such new or additional Required Permits (along with a copy thereof if requested by Agent or such Lender).


 


(d)            In
addition to the events listed in Article 10, any one of the following shall also constitute an Event of Default under this Agreement:
(i) the order by FDA or similar Governmental Authority to withdraw any Product or Product category from the market or to enjoin Borrower,
its Subsidiaries or any representative of Borrower or its Subsidiaries from manufacturing, marketing, selling or distributing any Product
or Product category that could reasonably be expected to result in Material Adverse Change, (ii) the decision by any DEA, FDA, or
any other Governmental Authority to revoke, suspend, reject, withdraw, limit, or restrict any Required Permit held by Borrower, its Subsidiaries
or any representative of Borrower or its Subsidiaries, which, in each case, could reasonably be expected to result in a Material Adverse
Change, (iii) the commencement of any enforcement action against Borrower, its Subsidiaries or any representative of Borrower or
its Subsidiaries (with respect to the business of Borrower or its Subsidiaries) by DEA, FDA, or any other Governmental Authority that
could reasonably be expected to result in a Material Adverse Change, (iv) the recall of any Products from the market, the voluntary
withdrawal of any Products from the market, or actions to discontinue the sale of any Products which could reasonably be expected to result
in a Material Adverse Change, or (v) the occurrence of adverse test results in connection with a Product which could reasonably be
expected to result in a Material Adverse Change.


 


9              AMENDMENT
AND RESTATEMENT; NO NOVATION


 


9.1           On
the Closing Date upon the satisfaction of the conditions precedent in Section 3.1 and Section 3.2, the Existing
Credit Agreement shall be amended and restated in its entirety as set forth herein. The Existing Loan outstanding on the Closing Date
shall be rolled over and converted into Credit Extensions under Credit Facility #1 hereunder in accordance with the terms set forth in
Section 2.3 and this Article 9.


 


9.2           The
parties hereto acknowledge and agree that (i) this Agreement and the other Financing Documents, whether executed and delivered in
connection herewith or otherwise, do not constitute a novation or termination of the Existing Obligations under the Existing Credit Agreement
as in effect prior to the Closing Date and which remain outstanding and are in all respects continuing (on the terms as amended and restated
hereby), (ii) the Liens and security interests as granted under the Existing Credit Agreement and other Existing Financing Documents
securing payment of such Existing Obligations are in all respects continuing and in full force and effect after giving effect to this
Agreement and the transactions contemplated hereby and all such Liens granted to the Existing Agent shall be deemed to constitute Liens
granted to the Agent on behalf of the Lenders under this Agreement, (iii) references in the Existing Financing Documents or the Financing
Documents to the “Credit Agreement” shall be deemed to be references to this Agreement (as the same may be amended, restated,
supplemented or otherwise modified from time to time), and to the extent necessary to effect the foregoing, each such Financing Document
is hereby deemed amended accordingly, (iv) all of the terms and provisions of the Existing Credit Agreement shall continue to apply
for the period prior to the Closing Date, including any determinations of payment dates, interest rates, Events of Default or any amount
that may be payable to the Agent or the Lenders (or their assignees or replacements hereunder), (v) the Existing Obligations under
the Existing Credit Agreement shall continue to be paid or prepaid on or prior to the Closing Date on the terms set forth in the Existing
Credit Agreement, and shall from and after the Closing Date continue to be owing and be subject to the terms of this Agreement, (vi) all
references in the Financing Documents to the “Lenders” or a “Lender” shall be deemed to refer to such terms as
defined in this Agreement, and to the extent necessary to effect the foregoing, each such Financing Document is hereby deemed amended
accordingly and (vii) any Defaults or Events of Default that are continuing under the Existing Credit Agreement shall constitute
Defaults or Events of Default under this Agreement unless the same shall have been specifically waived in writing in accordance with this
Agreement, and to the extent necessary to effect the foregoing, each such Financing Document is hereby deemed amended accordingly.


 






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9.3           The
Borrower, Credit Parties, Agent and Lenders acknowledge and agree that all principal, interest, fees, costs, reimbursable expenses and
indemnification obligations accruing or arising under or in connection with the Existing Credit Agreement which remain unpaid and outstanding
as of the Closing Date shall be and remain outstanding and payable as an Obligation under the terms of this Agreement and the other Financing
Documents.


 


9.4           The
parties hereto agree that as of the Closing Date, (i) the Lenders signatory hereto shall become “Lenders” under this
Agreement and the other Financing Documents and (ii) each Lender shall have the Applicable Commitment set forth on the Credit Facility
Schedule.


 


9.5           Each
Credit Party hereby ratifies the Existing Financing Documents (as amended hereby and in connection herewith) and acknowledges and reaffirms
(i) that it is bound by all terms thereunder applicable to it and (ii) that it is responsible for the observance and full performance
of its respective obligations thereunder.


 


9.6           Notwithstanding
anything to the contrary contained in the Existing Credit Agreement or this Article 9, each Existing Lender hereby waives any Applicable
Prepayment Fee (under and as defined in the Existing Credit Agreement) payable to such Existing Lender under Section 2.3(d) of
the Existing Credit Agreement solely as a result of the amendment and restatement of the Existing Credit Agreement.


 


10            EVENTS
OF DEFAULT


 


10.1         Events
of Default. The occurrence of any of the following conditions and/or events, whether voluntary or involuntary, by operation of law
or otherwise, shall constitute an “Event of Default” and Credit Parties shall thereupon be in default under this Agreement
and each of the other Financing Documents:


 


(a)            Borrower
fails to (i) make any payment of principal or interest on any Credit Extension on its due date, or (ii) pay any other Obligations
within three (3) Business Days after such Obligations are due and payable (which three (3) Business Day grace period shall not
apply to payments due on the Maturity Date or the date of acceleration pursuant to Section 10.2 hereof);


 


(b)            Any
Credit Party defaults in the performance of or compliance with any term contained in this Agreement or in any other Financing Document
(other than occurrences described in other provisions of this Section 10.1 for which a different grace or cure period is specified
or for which no grace or cure period is specified and thereby constitute immediate Events of Default) and such default is not remedied
by the Credit Party or waived by Agent within ten (10) days after the earlier of (i) the date of receipt by any Borrower of
notice from Agent or Required Lenders of such default, or (ii) the date an officer of such Credit Party becomes aware, or through
the exercise of reasonable diligence should have become aware, of such default;


 






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(c)            Any
Credit Party defaults in the performance of or compliance with any term contained in Section 6.2, 6.4, 6.5,
6.6, 6.8, 6.10 or Article 7 or Article 8;


 


(d)            Any
representation, warranty, certification or statement made by any Credit Party or any other Person acting for or on behalf of a Credit
Party (i) in any Financing Document or in any certificate, financial statement or other document delivered pursuant to any Financing
Document or (ii) to induce Agent and/or Lenders to enter into this Agreement or any Financing Document is incorrect in any respect
(or in any material respect if such representation, warranty, certification or statement is not by its terms already qualified as to materiality)
when made (or deemed made);


 


(e)            (i) any
Credit Party defaults under or breaches any Material Agreement (after any applicable grace period contained therein), or a Material Agreement
shall be terminated by a third party or parties party thereto prior to the expiration thereof, or there is a loss of a material right
of a Credit Party under any Material Agreement to which it is a party, in each case which could reasonably be expected to result in a
Material Adverse Change, (ii) (A) any Credit Party fails to make (after any applicable grace period) any payment when due (whether
due because of scheduled maturity, required prepayment provisions, acceleration, demand or otherwise) on any Indebtedness (other than
the Obligations) of such Credit Party or such Subsidiary having an aggregate principal amount (including undrawn committed or available
amounts and including amounts owing to all creditors under any combined or syndicated credit arrangement) of more than Five Hundred Thousand
Dollars ($500,000) (“Material Indebtedness”), (B) any other event shall occur or condition shall exist under any
contractual obligation relating to any such Material Indebtedness, if the effect of such event or condition is to accelerate, or to permit
the acceleration of (without regard to any subordination terms with respect thereto), the maturity of such Material Indebtedness or (C) any
such Material Indebtedness shall become or be declared to be due and payable, or be required to be prepaid, redeemed, defeased or repurchased
(other than by a regularly scheduled required prepayment), prior to the stated maturity thereof, (iii) any Credit Party defaults
(beyond any applicable grace period) under any obligation for payments due or other material obligation under any lease agreement for
such Credit Party’s principal place of business or any place of business that meets the criteria for the requirement of an Access
Agreement under Section 7.2 or for which an Access Agreement exists or was required to be delivered, (iv) any Credit
Party breaches or defaults under any Permitted Convertible Indebtedness Document, or any event occurs that requires the prepayment or
redemption by a Credit Party of any Permitted Convertible Indebtedness, or the delivery of any notice with respect to any Permitted Convertible
Indebtedness that results in such Permitted Convertible Indebtedness becoming due and payable or which permits the acceleration prior
to the stated maturity thereof (without regard to any subordination terms with respect thereto), or (v) any Borrower makes any payment
on account of any Indebtedness that has been subordinated to any of the Obligations, other than payments specifically permitted by the
terms of such subordination;


 


(f)            (i) any
Credit Party shall generally not pay its debts as such debts become due, shall admit in writing its inability to pay its debts generally,
shall make a general assignment for the benefit of creditors, or shall cease doing business as a going concern, (ii) any proceeding
shall be instituted by or against any Credit Party seeking to adjudicate it a bankrupt or insolvent or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief, composition of it or its debts or any similar order, in each case under any
law relating to bankruptcy, insolvency or reorganization or relief of debtors or seeking the entry of an order for relief or the appointment
of a custodian, receiver, trustee, conservator, liquidating agent, liquidator, other similar official or other official with similar powers,
in each case for it or for any substantial part of its property and, in the case of any such proceedings instituted against (but not by
or with the consent of) such Credit Party, either such proceedings shall remain undismissed or unstayed for a period of thirty (30) days
or more or any action sought in such proceedings shall occur or (iii) any Credit Party shall take any corporate or similar action
or any other action to authorize any action described in clause (i) or (ii) above;


 






    26


     


    

 


(g)            (i) The
service of process seeking to attach, execute or levy upon, seize or confiscate any Collateral Account, any Intellectual Property, or
any funds of any Credit Party on deposit with Agent, any Lender or any Affiliate of Agent or any Lender, or (ii) a notice of lien,
levy, or assessment is filed against any assets of a Credit Party by any government agency, and the same under subclauses (i) and
(ii) hereof are not discharged or stayed (whether through the posting of a bond or otherwise) prior to the earlier to occur of twenty
(20) days after the occurrence thereof or such action becoming effective;


 


(h)            (i) any
court order enjoins, restrains, or prevents Borrower from conducting any material part of its business, (ii) the institution by any
Governmental Authority of criminal proceedings against any Credit Party, or (iii) one or more judgments or orders for the payment
of money (not paid or fully covered by insurance and as to which the relevant insurance company has acknowledged coverage in writing)
aggregating in excess of $200,000 shall be rendered against any or all Credit Parties and either (A) enforcement proceedings shall
have been commenced by any creditor upon any such judgments or orders, or (B) there shall be any period of ten (10) consecutive
days during which a stay of enforcement of any such judgments or orders, by reason of a pending appeal, bond or otherwise, shall not be
in effect;


 


(i)            any
Lien created by any of the Financing Documents shall at any time fail to constitute a valid and perfected Lien on all of the Collateral
purported to be encumbered thereby, subject to no prior or equal Lien except Permitted Liens, or any Credit Party shall so assert; any
provision of any Financing Document shall fail to be valid and binding on, or enforceable against, a Credit Party, or any Credit Party
shall so assert;


 


(j)            A
Change in Control occurs or any Credit Party or direct or indirect equity owner in a Credit Party shall enter into agreement which contemplates
a Change in Control;


 


(k)            Any
Required Permit shall have been (i) revoked, rescinded, suspended, modified in an adverse manner or not renewed in the Ordinary Course
of Business for a full term, or (ii) subject to any decision by a Governmental Authority that designates a hearing with respect to
any applications for renewal of any of such Required Permit or that could result in the Governmental Authority taking any of the actions
described in clause (i) above, and such decision or such revocation, rescission, suspension, modification or non-renewal (A) causes,
or could reasonably be expected to cause, a Material Adverse Change, or (B) adversely affects the legal qualifications of any Credit
Party to hold such Required Permit in any applicable jurisdiction and such revocation, rescission, suspension, modification or non-renewal
could reasonably be expected to affect the status of or legal qualifications of any Credit Party to hold any Required Permit in any other
jurisdiction in such a manner as could reasonably be expected to cause a Material Adverse Change;


 


(l)            If
any Borrower is or becomes an entity whose equity is registered with the SEC, and/or is publicly traded on and/or registered with a public
securities exchange, such Borrower’s equity fails to remain registered with the SEC in good standing, and/or such equity fails to
remain publicly traded on and registered with a public securities exchange; or


 


(m)            The
occurrence of a Material Adverse Change.


 






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Notwithstanding the foregoing, if a Credit Party
fails to comply with any same provision of this Agreement two (2) times in any twelve (12) month period and Agent has given to any
Borrower in connection with each such failure any notice to which Borrower would be entitled under this Section 10.1 before
such failure could become an Event of Default, then all subsequent failures by a Credit Party to comply with such provision of this Agreement
shall effect an immediate Event of Default (without the expiration of any applicable cure period) with respect to all subsequent failures
by a Credit Party to comply with such provision of this Agreement, and Agent thereupon may exercise any remedy set forth in this Article 10
without affording Borrower any opportunity to cure such Event of Default.


 


All cure periods provided for in this Section 10.1
shall run concurrently with any cure period provided for in any applicable Financing Documents under which the default occurred.


 


10.2         Rights
and Remedies.


 


(a)            Upon
the occurrence and during the continuance of an Event of Default, Agent may, and at the written
direction of the Required Lenders shall, without notice or demand, do any or all of the following: (i) deliver notice of
the Event of Default to Borrower, (ii) by notice to any Borrower declare all Obligations immediately due and payable (but if an
Event of Default described in Section 10.1(f) occurs all Obligations shall be immediately due and payable without any
action by Agent or the Lenders), or (iii) by notice to any Borrower suspend or terminate the obligations, if any, of the Lenders
to advance money or extend credit for Borrower’s benefit under this Agreement or under any other agreement between any Credit Party
and Agent and/or the Lenders (but if an Event of Default described in Section 10.1(f) occurs all obligations, if any,
of the Lenders to advance money or extend credit for Borrower’s benefit under this Agreement or under any other agreement between
Borrower and Agent and/or the Lenders shall be immediately terminated without any action by Agent or the Lenders).


 


(b)            Without
limiting the rights of Agent and Lenders set forth in Section 10.2(a) above, upon the occurrence and during the continuance
of an Event of Default, Agent shall have the right, without notice or demand, to do any or all of the following:


 


(i)            with
or without legal process, enter any premises where the Collateral may be and take possession of and remove the Collateral from the premises
or store it on the premises, and foreclose upon and/or sell, lease or liquidate, the Collateral, in whole or in part;


 


(ii)            apply
to the Obligations (A) any balances and deposits of any Credit Party that Agent or any Lender or any Affiliate of Agent or a Lender
holds or controls, or (B) any amount held or controlled by Agent or any Lender or any Affiliate of Agent or a Lender owing to or
for the credit or the account of any Credit Party;


 


(iii)            settle,
compromise or adjust and grant releases with respect to disputes and claims directly with Account Debtors for amounts on terms and in
any order that Agent considers advisable, notify any Person owing any Credit Party money of Agent’s security interest in such funds,
and verify the amount of such Account;


 


(iv)            make
any payments and do any acts it considers necessary or reasonable to protect the Collateral and/or its security interest in the Collateral.
Borrower shall assemble the Collateral if Agent requests and make it available as Agent designates. Agent may also render any or all of
the Collateral unusable at a Credit Party’s premises and may dispose of such Collateral on such premises without liability for rent
or costs. Borrower grants Agent a license to enter and occupy any of its premises, without charge, to exercise any of Agent’s rights
or remedies;


 






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(v)            pay,
purchase, contest, or compromise any Lien which appears to be prior or superior to its security interest and pay all expenses incurred;


 


(vi)            ship,
reclaim, recover, store, finish, maintain, repair, prepare for sale, and/or advertise for sale, the Collateral. Agent is hereby granted
a non-exclusive, royalty-free license or other right to use, without charge, Borrower’s labels, patents, copyrights, mask works,
rights of use of any name, trade secrets, trade names, trademarks, service marks, and advertising matter, or any similar property as it
pertains to the Collateral, in completing production of, advertising for sale, and selling any Collateral (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 and programs used for the
compilation or printout thereof) and, in connection with Agent’s exercise of its rights under this Article 10, Borrower’s
rights under all licenses and all franchise agreements shall be deemed to inure to Agent for the benefit of the Lenders;


 


(vii)            place
a “hold” on any account maintained with Agent or the Lenders or any Affiliate of Agent or a Lender and/or deliver a notice
of exclusive control, any entitlement order, or other directions or instructions pursuant to any Control Agreement or similar agreements
providing control of any Collateral;


 


(viii)            demand
and receive possession of the Books of Borrower and the other Credit Parties; and


 


(ix)            exercise
all other rights and remedies available to Agent under the Financing Documents or at law or equity, including all remedies provided under
the Code (including disposal of the Collateral pursuant to the terms thereof).


 


10.3         Notices.
Any notice that Agent is required to give to a Credit Party under the Code of the time and place of any public sale or the time after
which any private sale or other intended disposition of the Collateral is to be made shall be deemed to constitute reasonable notice if
such notice is given in accordance with this Agreement at least five (5) days prior to such action.


 


10.4         Protective
Payments. If any Credit Party fails to pay or perform any covenant or obligation under this Agreement or any other Financing Document,
Agent may pay or perform such covenant or obligation, and all amounts so paid by Agent are Protective Advances and immediately due and
payable, bearing interest at the then highest applicable rate for the Credit Facilities hereunder, and secured by the Collateral. No such
payments or performance by Agent shall be construed as an agreement to make similar payments or performance in the future or constitute
Agent’s waiver of any Event of Default.


 


10.5         Liability
for Collateral No Waiver; Remedies Cumulative. So long as Agent and the Lenders comply with reasonable banking practices regarding
the safekeeping of the Collateral in the possession or under the control of Agent and the Lenders, Agent and the Lenders shall not be
liable or responsible for: (a) the safekeeping of the Collateral; (b) any loss or damage to the Collateral; (c) any diminution
in the value of the Collateral; or (d) any act or default of any carrier, warehouseman, bailee, or other Person. Borrower bears all
risk of loss, damage or destruction of the Collateral. Agent’s failure, at any time or times, to require strict performance by Borrower
of any provision of this Agreement or any other Financing Document shall not waive, affect, or diminish any right of Agent thereafter
to demand strict performance and compliance herewith or therewith. No waiver hereunder shall be effective unless signed by Agent and then
is only effective for the specific instance and purpose for which it is given. Agent’s rights and remedies under this Agreement
and the other Financing Documents are cumulative. Agent has all rights and remedies provided under the Code, by Law, or in equity. Agent’s
exercise of one right or remedy is not an election, and Agent’s waiver of any Event of Default is not a continuing waiver. Agent’s
delay in exercising any remedy is not a waiver, election, or acquiescence.


 






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10.6         Application
of Payments and Proceeds. Notwithstanding anything to the contrary contained in this Agreement, upon the occurrence and during the
continuance of an Event of Default, (i) Borrower, for itself and the other Credit Parties, irrevocably waives the right to direct
the application of any and all payments at any time or times thereafter received by Agent from or on behalf of Borrower of all or any
part of the Obligations, and, as between Borrower and the Credit Parties on the one hand and Agent and Lenders on the other, Agent shall
have the continuing and exclusive right to apply and to reapply any and all payments received against the Obligations in such manner as
Agent may deem advisable notwithstanding any previous application by Agent, and (ii) unless the Agent and the Lenders shall agree
otherwise, the proceeds of any sale of, or other realization upon all or any part of the Collateral shall be applied: first, to
the Protective Advances; second, to accrued and unpaid interest on the Obligations (including any interest which, but for the provisions
of the United States Bankruptcy Code, would have accrued on such amounts); third, to the principal amount of the Obligations outstanding;
and fourth, to any other indebtedness or obligations of the Credit Parties owing to Agent or any Lender under the Financing Documents.
Borrower shall remain fully liable for any deficiency. Any balance remaining shall be delivered to Borrower or to whoever may be lawfully
entitled to receive such balance or as a court of competent jurisdiction may direct. Unless the Agent and the Lenders shall agree otherwise,
in carrying out the foregoing, (x) amounts received shall be applied in the numerical order provided until exhausted prior to the
application to the next succeeding category, and (y) each of the Persons entitled to receive a payment in any particular category
shall receive an amount equal to its pro rata share of amounts available to be applied pursuant thereto for such category.


 


10.7         Waivers.


 


(a)            Except
as otherwise provided for in this Agreement and to the fullest extent permitted by applicable law, each Borrower waives: (i) presentment,
demand and protest, and notice of presentment, dishonor, intent to accelerate, acceleration, protest, default, nonpayment, maturity, release,
compromise, settlement, extension or renewal of any or all Financing Documents and hereby ratifies and confirms whatever Agent or Lenders
may do in this regard; (ii) all rights to notice and a hearing prior to Agent’s or any Lender’s entry upon the premises
of a Borrower, the taking possession or control of, or to Agent’s or any Lender’s replevy, attachment or levy upon, any Collateral
or any bond or security which might be required by any court prior to allowing Agent or any Lender to exercise any of its remedies; and
(iii) the benefit of all valuation, appraisal and exemption Laws. Each Borrower acknowledges that it has been advised by counsel
of its choices and decisions with respect to this Agreement, the other Financing Documents and the transactions evidenced hereby and thereby.


 


(b)            Each
Borrower for itself and all its successors and assigns, (i) agrees that its liability shall not be in any manner affected by any
indulgence, extension of time, renewal, waiver, or modification granted or consented to by Lender; (ii) consents to any indulgences
and all extensions of time, renewals, waivers, or modifications that may be granted by Agent or any Lender with respect to the payment
or other provisions of the Financing Documents, and to any substitution, exchange or release of the Collateral, or any part thereof, with
or without substitution, and agrees to the addition or release of any Borrower, endorsers, guarantors, or sureties, or whether primarily
or secondarily liable, without notice to any other Borrower and without affecting its liability hereunder; (iii) agrees that its
liability shall be unconditional and without regard to the liability of any other Borrower, Agent or any Lender for any tax on the indebtedness;
and (iv) to the fullest extent permitted by law, expressly waives the benefit of any statute or rule of law or equity now provided,
or which may hereafter be provided, which would produce a result contrary to or in conflict with the foregoing.


 






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(c)            To
the extent that Agent or any Lender may have acquiesced in any noncompliance with any requirements or conditions precedent to the closing
of the Credit Facilities or to any subsequent disbursement of Credit Extensions, such acquiescence shall not be deemed to constitute a
waiver by Agent or any Lender of such requirements with respect to any future Credit Extensions and Agent may at any time after such acquiescence
require Borrower to comply with all such requirements. Any forbearance by Agent or a Lender in exercising any right or remedy under any
of the Financing Documents, or otherwise afforded by applicable law, including any failure to accelerate the maturity date of the Credit
Facilities, shall not be a waiver of or preclude the exercise of any right or remedy nor shall it serve as a novation of the Financing
Documents or as a reinstatement of the Obligations or a waiver of such right of acceleration or the right to insist upon strict compliance
of the terms of the Financing Documents. Agent’s or any Lender’s acceptance of payment of any sum secured by any of the Financing
Documents after the due date of such payment shall not be a waiver of Agent’s and such Lender’s right to either require prompt
payment when due of all other sums so secured or to declare a default for failure to make prompt payment. The procurement of insurance
or the payment of taxes or other Liens or charges by Agent as the result of an Event of Default shall not be a waiver of Agent’s
right to accelerate the maturity of the Obligations, nor shall Agent’s receipt of any condemnation awards, insurance proceeds, or
damages under this Agreement operate to cure or waive any Credit Party’s default in payment of sums secured by any of the Financing
Documents.


 


(d)            Without
limiting the generality of anything contained in this Agreement or the other Financing Documents, each Borrower agrees that if an Event
of Default is continuing (i) Agent and Lenders shall not be subject to any “one action” or “election of remedies”
law or rule, and (ii) all Liens and other rights, remedies or privileges provided to Agent or Lenders shall remain in full force
and effect until Agent or Lenders have exhausted all remedies against the Collateral and any other properties owned by Borrower and the
Financing Documents and other security instruments or agreements securing the Obligations have been foreclosed, sold and/or otherwise
realized upon in satisfaction of Borrower’s obligations under the Financing Documents.


 


(e)            Neither
Agent nor any Lender shall be under any obligation to marshal any assets in payment of any or all of the Obligations. Nothing contained
herein or in any other Financing Document shall be construed as requiring Agent or any Lender to resort to any part of the Collateral
for the satisfaction of any of Borrower’s obligations under the Financing Documents in preference or priority to any other Collateral,
and Agent may seek satisfaction out of all of the Collateral or any part thereof, in its absolute discretion in respect of Borrower’s
obligations under the Financing Documents. To the fullest extent permitted by law, each Borrower, for itself and its successors and assigns,
waives in the event of foreclosure of any or all of the Collateral any equitable right otherwise available to any Credit Party which would
require the separate sale of any of the Collateral or require Agent or Lenders to exhaust their remedies against any part of the Collateral
before proceeding against any other part of the Collateral; and further in the event of such foreclosure each Borrower does hereby expressly
consent to and authorize, at the option of Agent, the foreclosure and sale either separately or together of each part of the Collateral.


 


10.8            Injunctive
Relief. The parties acknowledge and agree that, in the event of a breach or threatened breach of any Credit Party’s obligations
under any Financing Documents, Agent and Lenders may have no adequate remedy in money damages and, accordingly, shall be entitled to an
injunction (including, without limitation, a temporary restraining order, preliminary injunction, writ of attachment, or order compelling
an audit) against such breach or threatened breach, including, without limitation, maintaining any cash management and collection procedure
described herein. However, no specification in this Agreement of a specific legal or equitable remedy shall be construed as a waiver or
prohibition against any other legal or equitable remedies in the event of a breach or threatened breach of any provision of this Agreement.
Each Credit Party waives, to the fullest extent permitted by law, the requirement of the posting of any bond in connection with such injunctive
relief. By joining in the Financing Documents as a Credit Party, each Credit Party specifically joins in this Section 10.8 as
if this Section 10.8 were a part of each Financing Document executed by such Credit Party.


 






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11            NOTICES


 


All notices, consents, requests,
approvals, demands, or other communication (collectively, “Communication”) by any party to this Agreement or any other
Financing Document must be in writing and shall be deemed to have been validly served, given, or delivered: (a) upon the earlier
of actual receipt and three (3) Business Days after deposit in the U.S. mail, first class, registered or certified mail return receipt
requested, with proper postage prepaid; (b) upon transmission, when sent by electronic mail (if an email address is specified herein)
or facsimile transmission; (c) one (1) Business Day after deposit with a reputable overnight courier with all charges prepaid;
or (d) when delivered, if hand-delivered by messenger, all of which shall be addressed to the party to be notified and sent to the
address, facsimile number, or email address indicated below. Any of Agent, Lender or Borrower may change its mailing or electronic mail
address or facsimile number by giving the other party written notice thereof in accordance with the terms of this Article 11.


 


If to Borrower: 


 


Ocular Therapeutix, Inc. 


24 Crosby Drive 


Bedford, MA 01730 


Attention: Chief Financial Officer 


Fax: (781) 357-4001 


E-Mail: dnotman@ocutx.com


 


with a copy to:


 


Wilmer Cutler Pickering Hale and Dorr LLP 


7 World Trade Center 


250 Greenwich Street 


New York, NY 10007 


Attention: Brian A. Johnson, Esq. 


Fax: (212) 230-8888 


Email: brian,johnson@wilmerhale.com


 


If to Agent or MidCap (or any of its Affiliates
or Approved Funds) as a Lender:


 


MidCap Financial Trust 


c/o MidCap Financial Services, LLC, as servicer 


7255 Woodmont Ave, Suite 300 


Bethesda, MD 20814 


Attn: Account Manager for Ocular transaction 


Facsimile: 301-941-1450 


Email: notices@midcapfinancial.com


 


with a copy to:


 


MidCap Financial Trust 


c/o MidCap Financial Services, LLC, as servicer 


7255 Woodmont Ave, Suite 300  


Bethesda, MD 20814 


Attn: Legal 


Facsimile: 301-941-1450


Email: legalnotices@midcapfinancial.com


 


If
to any Lender other than Midcap: at the address set forth on the signature pages to this Agreement or provided to Borrower
as a notice address for such Lender in connection with any assignment hereunder.


 






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12            CHOICE
OF LAW, VENUE AND JURY TRIAL WAIVER; confession of judgment


 


12.1            THIS
AGREEMENT, EACH SECURED PROMISSORY NOTE AND EACH OTHER FINANCING DOCUMENT, AND THE RIGHTS, REMEDIES AND OBLIGATIONS OF THE PARTIES HERETO
AND THERETO, AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS AGREEMENT OR SUCH FINANCING DOCUMENT, THE RELATIONSHIP
OF THE PARTIES, AND/OR THE INTERPRETATION AND ENFORCEMENT OF THE RIGHTS AND DUTIES OF THE PARTIES AND ALL OTHER MATTERS RELATING HERETO,
THERETO OR ARISING THEREFROM (WHETHER SOUNDING IN CONTRACT LAW, TORT LAW OR OTHERWISE), SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF MARYLAND, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS. NOTWITHSTANDING THE FOREGOING,
AGENT AND LENDERS SHALL HAVE THE RIGHT TO BRING ANY ACTION OR PROCEEDING AGAINST BORROWER OR ITS PROPERTY IN THE COURTS OF ANY OTHER JURISDICTION
WHICH AGENT AND LENDERS (IN ACCORDANCE WITH THE PROVISIONS OF SECTION 12.1) DEEM NECESSARY OR APPROPRIATE TO REALIZE ON THE
COLLATERAL OR TO OTHERWISE ENFORCE AGENT’S AND LENDERS’ RIGHTS AGAINST BORROWER OR ITS PROPERTY. Borrower
expressly submits and consents in advance to such jurisdiction in any action or suit commenced in any such court, and Borrower hereby
waives any objection that it may have based upon lack of personal jurisdiction, improper venue, or forum non conveniens and hereby consents
to the granting of such legal or equitable relief as is deemed appropriate by such court. Borrower hereby waives personal service of the
summons, complaints, and other process issued in such action or suit and agrees that service of such summons, complaints, and other process
may be made by registered or certified mail addressed to Borrower at the address set forth in ARTICLE 11 of this Agreement
and that service so made shall be deemed completed upon the earlier to occur of Borrower’s actual receipt thereof or three (3) days
after deposit in the U.S. mail, proper postage prepaid.


 


12.2            TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, BORROWER, AGENT AND LENDERS EACH WAIVE THEIR RIGHT TO A JURY TRIAL OF ANY CLAIM OR CAUSE
OF ACTION ARISING OUT OF OR BASED UPON THIS AGREEMENT, THE FINANCING DOCUMENTS OR ANY CONTEMPLATED TRANSACTION, INCLUDING CONTRACT,
TORT, BREACH OF DUTY AND ALL OTHER CLAIMS. THIS WAIVER IS A MATERIAL INDUCEMENT FOR BOTH PARTIES TO ENTER INTO THIS AGREEMENT. EACH PARTY
HAS REVIEWED THIS WAIVER WITH ITS COUNSEL.


 


12.3            Borrower,
Agent and each Lender agree that each Credit Extension (including those made on the Closing Date) shall be deemed to be made in, and the
transactions contemplated hereunder and in any other Financing Document shall be deemed to have been performed in, the State of Maryland.


 


12.4            CONFESSION
OF JUDGMENT. UPON THE OCCURRENCE OF AN EVENT OF DEFAULT, EACH BORROWER AUTHORIZES ANY ATTORNEY ADMITTED TO PRACTICE BEFORE ANY
COURT OF RECORD IN THE UNITED STATES OR THE CLERK OF SUCH COURT TO APPEAR ON BEHALF OF SUCH BORROWER IN ANY COURT IN ONE OR MORE PROCEEDINGS,
OR BEFORE ANY CLERK THEREOF OR PROTHONOTARY OR OTHER COURT OFFICIAL, AND TO CONFESS JUDGMENT AGAINST BORROWER IN FAVOR OF AGENT (FOR THE
BENEFIT OF ALL LENDERS) IN THE FULL AMOUNT DUE ON THIS AGREEMENT (INCLUDING PRINCIPAL, ACCRUED INTEREST AND ANY AND ALL CHARGES, FEES
AND COSTS) PLUS ATTORNEYS’ FEES EQUAL TO FIFTEEN PERCENT (15%) OF THE AMOUNT DUE (EXCEPT THAT AGENT SHALL NOT SEEK TO COLLECT AN
AMOUNT IN EXCESS OF ITS ACTUAL ATTORNEYS’ FEES), PLUS COURT COSTS, ALL WITHOUT PRIOR NOTICE OR OPPORTUNITY OF SUCH BORROWER FOR
PRIOR HEARING. EACH BORROWER AGREES AND CONSENTS THAT VENUE AND JURISDICTION SHALL BE PROPER IN THE CIRCUIT COURT OF ANY COUNTY OF THE
STATE OF MARYLAND. THE AUTHORITY AND POWER TO APPEAR FOR AND ENTER JUDGMENT AGAINST A BORROWER SHALL NOT BE EXHAUSTED BY ONE OR MORE EXERCISES
THEREOF, OR BY ANY IMPERFECT EXERCISE THEREOF, AND SHALL NOT BE EXTINGUISHED BY ANY JUDGMENT ENTERED PURSUANT THERETO; SUCH AUTHORITY
AND POWER MAY BE EXERCISED ON ONE OR MORE OCCASIONS FROM TIME TO TIME, IN THE SAME OR DIFFERENT JURISDICTIONS, AS OFTEN AS AGENT
SHALL DEEM NECESSARY, CONVENIENT, OR PROPER.


 






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13            GENERAL
PROVISIONS


 


13.1            Successors
and Assigns.


 


(a)            This
Agreement binds and is for the benefit of the successors and permitted assigns of each party. Borrower may not assign this Agreement or
any rights or obligations under it without Agent’s and each Lender’s prior written consent (which may be granted or withheld
in Agent’s or such Lender’s discretion). Any Lender may at any time assign to one or more Eligible Assignees all or any portion
of such Lender’s Applicable Commitment and/or Credit Extensions, together with all related obligations of such Lender hereunder.
Borrower and Agent shall be entitled to continue to deal solely and directly with such Lender in connection with the interests so assigned
until Agent shall have received and accepted an effective assignment agreement in form and substance acceptable to Agent, executed, delivered
and fully completed by the applicable parties thereto, and shall have received such other information regarding such Eligible Assignee
as Agent reasonably shall require. Notwithstanding anything set forth in this Agreement to the contrary, any Lender may at any time pledge
or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including
any pledge or assignment to secure obligations to a Federal Reserve Bank; provided, however, that no such pledge or assignment
shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party
hereto. If requested by Agent, Borrower agrees to (i) execute any documents reasonably required to effectuate and acknowledge each
assignment of an Applicable Commitment or Credit Extension to an assignee hereunder, (ii) make Borrower’s management available
to meet with Agent and prospective participants and assignees of Applicable Commitments or Credit Extensions and (iii) assist Agent
or the Lenders in the preparation of information relating to the financial affairs of Borrower as any prospective participant or assignee
of an Applicable Commitment or Credit Extension reasonably may request.


 


(b)            From
and after the date on which the conditions described above have been met, (i) such Eligible Assignee shall be deemed automatically
to have become a party hereto and, to the extent of the interests assigned to such Eligible Assignee pursuant to such assignment agreement,
shall have the rights and obligations of a Lender hereunder, and (ii) the assigning Lender, to the extent that rights and obligations
hereunder have been assigned by it pursuant to such assignment agreement, shall be released from its rights and obligations hereunder
(other than those that survive termination). Upon the request of the Eligible Assignee (and, as applicable, the assigning Lender) pursuant
to an effective assignment agreement, each Borrower shall execute and deliver to Agent for delivery to the Eligible Assignee (and, as
applicable, the assigning Lender) secured notes in the aggregate principal amount of the Eligible Assignee’s Credit Extensions or
Applicable Commitments (and, as applicable, secured promissory notes in the principal amount of that portion of the principal amount of
the Credit Extensions or Applicable Commitments retained by the assigning Lender).


 






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(c)            Agent,
through its servicer, acting solely for this purpose as an agent of Borrower, shall maintain at its servicer’s offices located in
Bethesda, Maryland a copy of each assignment agreement delivered to it and a Register for the recordation of the names and addresses of
each Lender, and the commitments of, and principal amount (and stated interest) of the Credit Extensions owing to, such Lender pursuant
to the terms hereof (the “Register”). The entries in such Register shall be conclusive, and Borrower, Agent and Lenders
may treat each Person whose name is recorded therein pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary. Such Register shall be available for inspection by Borrower and any Lender, at any reasonable
time upon reasonable prior notice to Agent. Each Lender that sells a participation shall, acting solely for this purpose as an agent of
the Borrower maintain a register on which it enters the name and address of each participant and the principal amounts (and stated interest)
of each participant’s interest in the Obligations (each, a “Participant Register”). The entries in the Participant
Registers shall be conclusive. Each Participant Register shall be available for inspection by Borrower and the Agent at any reasonable
time upon reasonable prior notice to the applicable Lender; provided, that no Lender shall have any obligation to disclose all or any
portion of the Participant Register (including the identity of any participant or any information relating to a participant’s interest
in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person (including Borrower) except
to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered
form under Section 5f.103-1(c) of the United States Treasury Regulations.


 


(d)            Notwithstanding
anything to the contrary contained in this Agreement, the Credit Extensions (including any Secured Promissory Notes evidencing such Credit
Extensions) are registered obligations, the right, title and interest of the Lenders and their assignees in and to such Credit Extensions
shall be transferable only upon notation of such transfer in the Register and no assignment thereof shall be effective until recorded
therein. This Agreement shall be construed so that the Credit Extensions are at all times maintained in “registered form”
within the meaning of Sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code of 1986 as amended and Section 5f.103-1(c) of
the United States Treasury Regulations.


 


13.2            Indemnification.


 


(a)            Borrower
hereby agrees to promptly pay (i) all costs and expenses of Agent (including, without limitation, the fees, costs and expenses of
counsel to, and independent appraisers and consultants retained by Agent) in connection with the examination, review, due diligence investigation,
documentation, negotiation, closing and syndication of the transactions contemplated by the Financing Documents, in connection with the
performance by Agent of its rights and remedies under the Financing Documents and in connection with the continued administration of the
Financing Documents including (A) any amendments, modifications, consents and waivers to and/or under any and all Financing Documents,
and (B) any periodic public record searches conducted by or at the request of Agent (including, without limitation, title investigations,
UCC searches, fixture filing searches, judgment, pending litigation and tax lien searches and searches of applicable corporate, limited
liability, partnership and related records concerning the continued existence, organization and good standing of certain Persons); (ii) without
limitation of the preceding clause (i), all costs and expenses of Agent in connection with the creation, perfection and maintenance of
Liens pursuant to the Financing Documents; (iii) without limitation of the preceding clause (i), all costs and expenses of Agent
in connection with (A) protecting, storing, insuring, handling, maintaining or selling any Collateral, (B) any litigation, dispute,
suit or proceeding relating to any Financing Document, and (C) any workout, collection, bankruptcy, insolvency and other enforcement
proceedings under any and all of the Financing Documents; and (iv) all costs and expenses incurred by Agent or Lenders in connection
with any litigation, dispute, suit or proceeding relating to any Financing Document and in connection with any workout, collection, bankruptcy,
insolvency and other enforcement proceedings under any and all Financing Documents, whether or not Agent or Lenders are a party thereto.


 






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(b)            Borrower
hereby agrees to indemnify, pay and hold harmless Agent and Lenders and the officers, directors, employees, trustees, agents, investment
advisors, collateral managers, servicers, and counsel of Agent and Lenders (collectively called the “Indemnitees”)
from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, costs, expenses
and disbursements of any kind or nature whatsoever (including the fees and disbursements of counsel for such Indemnitee) in connection
with any investigative, response, remedial, administrative or judicial matter or proceeding, whether or not such Indemnitee shall be designated
a party thereto and including any such proceeding initiated by or on behalf of a Credit Party, and the reasonable expenses of investigation
by engineers, environmental consultants and similar technical personnel and any commission, fee or compensation claimed by any broker
(other than any broker retained by Agent or Lenders) asserting any right to payment for the transactions contemplated hereby, which may
be imposed on, incurred by or asserted against such Indemnitee as a result of or in connection with the transactions contemplated hereby
and the use or intended use of the proceeds of the Credit Facilities, except that Borrower shall have no obligation hereunder to an Indemnitee
with respect to any liability resulting from the gross negligence or willful misconduct of such Indemnitee, as determined by a final non-appealable
judgment of a court of competent jurisdiction. To the extent that the undertaking set forth in the immediately preceding sentence may
be unenforceable, Borrower shall contribute the maximum portion which it is permitted to pay and satisfy under applicable Law to the payment
and satisfaction of all such indemnified liabilities incurred by the Indemnitees or any of them. No Indemnitee shall be liable for any
damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications,
electronic or other information transmission systems in connection with this Agreement or the other Financing Documents or the transactions
contemplated hereby or thereby.


 


(c)            Notwithstanding
any contrary provision in this Agreement, the obligations of Borrower under this Section 13.2 shall survive the payment in
full of the Obligations and the termination of this Agreement. NO INDEMNITEE SHALL BE RESPONSIBLE OR LIABLE TO ANY CREDIT PARTY OR TO
ANY OTHER PARTY TO ANY FINANCING DOCUMENT, ANY SUCCESSOR, ASSIGNEE OR THIRD PARTY BENEFICIARY OR ANY OTHER PERSON ASSERTING CLAIMS DERIVATIVELY
THROUGH SUCH PARTY, FOR INDIRECT, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHICH MAY BE ALLEGED AS A RESULT OF CREDIT HAVING
BEEN EXTENDED, SUSPENDED OR TERMINATED UNDER THIS AGREEMENT OR ANY OTHER FINANCING DOCUMENT OR AS A RESULT OF ANY OTHER TRANSACTION CONTEMPLATED
HEREUNDER OR THEREUNDER.


 


13.3            Time
of Essence. Time is of the essence for the payment and performance of the Obligations in this Agreement.


 






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13.4            Severability
of Provisions. Each provision of this Agreement is severable from every other provision in determining the enforceability of any provision.


  


13.5            Correction
of Financing Documents. Agent and the Lenders may correct patent errors and fill in any blanks in this Agreement and the other Financing
Documents consistent with the agreement of the parties.


 


13.6            Integration.
This Agreement and the Financing Documents represent the entire agreement about this subject matter and supersede prior negotiations or
agreements. All prior agreements, understandings, representations, warranties, and negotiations between the parties about the subject
matter of this Agreement and the Financing Documents merge into this Agreement and the Financing Documents.


 


13.7            Counterparts.
This Agreement may be executed in any number of counterparts and by different parties on separate counterparts, each of which, when executed
and delivered, is an original, and all taken together, constitute one Agreement. Delivery of an executed signature page of this Agreement
by facsimile transmission or electronic transmission shall be as effective as delivery of a manually executed counterpart hereof.


 


13.8            Survival.
All covenants, representations and warranties made in this Agreement continue in full force until this Agreement has terminated pursuant
to its terms and all Obligations (other than inchoate indemnity obligations and any other obligations which, by their terms, are to survive
the termination of this Agreement) have been satisfied. The obligation of Borrower in Section 13.2 to indemnify each Lender
and Agent shall survive until the statute of limitations with respect to such claim or cause of action shall have run. All powers of attorney
and appointments of Agent or any Lender as Borrower’s attorney in fact hereunder, and all of Agent’s and Lenders’ rights
and powers in respect thereof, are coupled with an interest, are irrevocable until all Obligations (other than inchoate indemnity obligations
and any other obligations which, by their terms, are to survive the termination of this Agreement) have been fully repaid and performed
and Agent’s and the Lenders’ obligation to provide Credit Extensions terminates.


 


13.9            Confidentiality.
In handling any confidential information of Borrower, each of the Lenders and Agent shall use all reasonable efforts to maintain, in accordance
with its customary practices, the confidentiality of information obtained by it pursuant to any Financing Document and designated in writing
by any Credit Party as confidential, but disclosure of information may be made: (a) to the Lenders’ and Agent’s Subsidiaries
or Affiliates; (b) to prospective transferees or purchasers of any interest in the Credit Extensions; (c) as required by Law,
regulation, subpoena, order or other legal, administrative, governmental or regulatory request; (d) to regulators or as otherwise
required in connection with an examination or audit, or to any nationally recognized rating agency; (e) as Agent or any Lender considers
appropriate in exercising remedies under the Financing Documents; (f) to financing sources that are advised of the confidential nature
of such information and are instructed to keep such information confidential; (g) to third party service providers of the Lenders
and/or Agent so long as such service providers are bound to such Lender or Agent by obligations of confidentiality; (h) to the extent
necessary or customary for inclusion in league table measurements; and (i) in connection with any litigation or other proceeding
to which such Lender or Agent or any of their Affiliates is a party or bound, or to the extent necessary to respond to public statements
or disclosures by Credit Parties or their Affiliates referring to a Lender or Agent or any of their Affiliates. Confidential information
does not include information that either: (i) is in the public domain or in the Lenders’ and/or Agent’s possession when
disclosed to the Lenders and/or Agent, or becomes part of the public domain after disclosure to the Lenders and/or Agent; or (ii) is
disclosed to the Lenders and/or Agent by a third party, if the Lenders and/or Agent does not know that the third party is prohibited from
disclosing the information. Agent and/or Lenders may use confidential information for any purpose, including, without limitation, for
the development of client databases, reporting purposes, and market analysis, so long as Agent and/or Lenders, as applicable, do not disclose
Borrower’s identity or the identity of any Person associated with Borrower unless otherwise permitted by this Agreement. The provisions
of the immediately preceding sentence shall survive the termination of this Agreement. The agreements provided under this Section 13.9
supersede all prior agreements, understanding, representations, warranties, and negotiations between the parties about the subject matter
of this Section 13.9.


 






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13.10            Right
of Set-off. Borrower hereby grants to Agent and to each Lender, a lien, security interest and right of set-off as security for all
Obligations to Agent and each Lender hereunder, whether now existing or hereafter arising upon and against all deposits, credits, collateral
and property, now or hereafter in the possession, custody, safekeeping or control of Agent or the Lenders or any entity under the control
of Agent or the Lenders (including an Agent or Affiliate of a Lender) or in transit to any of them. At any time after the occurrence and
during the continuance of an Event of Default, without demand or notice, Agent or the Lenders may set-off the same or any part thereof
and apply the same to any liability or obligation of Borrower even though unmatured and regardless of the adequacy of any other collateral
securing the Obligations. ANY AND ALL RIGHTS TO REQUIRE AGENT TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL
WHICH SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF SET-OFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF BORROWER,
ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED.


 


13.11            Publicity.
Borrower will not directly or indirectly publish, disclose or otherwise use in any public disclosure, advertising material, promotional
material, press release or interview, any reference to the name, logo or any trademark of Agent or any Lender or any of their Affiliates
or any reference to this Agreement or the financing evidenced hereby, in any case except as required by applicable Law, subpoena or judicial
or similar order, in which case Borrower shall endeavor to give Agent prior written notice of such publication or other disclosure. Each
Lender and Borrower hereby authorizes each Lender to publish the name of such Lender and Borrower, the existence of the financing arrangements
referenced under this Agreement, the primary purpose and/or structure of those arrangements, the amount of credit extended under each
facility, the title and role of each party to this Agreement, and the total amount of the financing evidenced hereby in any “tombstone”,
comparable advertisement or press release which such Lender elects to submit for publication. In addition, each Lender and Borrower agrees
that each Lender may provide lending industry trade organizations with information necessary and customary for inclusion in league table
measurements after the Closing Date. With respect to any of the foregoing, such authorization shall be subject to such Lender providing
Borrower and the other Lenders with an opportunity to review and confer with such Lender regarding, and approve, the contents of any such
tombstone, advertisement or information, as applicable, prior to its initial submission for publication, but subsequent publications of
the same tombstone, advertisement or information shall not require Borrower’s approval.


 


13.12            No
Strict Construction. The parties hereto have participated jointly in the negotiation and drafting of this Agreement. In the
event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties
hereto and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provisions
of this Agreement.


 


13.13            Approvals.
Unless expressly provided herein to the contrary, any approval, consent, waiver or satisfaction of Agent or Lenders with respect to any
matter that is the subject of this Agreement or the other Financing Documents may be granted or withheld by Agent and Lenders in their
sole and absolute discretion and credit judgment.


 


13.14            Amendments;
Required Lenders; Inter-Lender Matters.


 


(a)            No
amendment, modification, termination or waiver of any provision of this Agreement or any other Financing Document, no approval or consent
thereunder, or any consent to any departure by Borrower therefrom (in each case, other than amendments, waivers, approvals or consents
deemed ministerial by Agent), shall in any event be effective unless the same shall be in writing and signed by Borrower, Agent and Required
Lenders. Except as set forth in clause (b) below, all such amendments, modifications, terminations or waivers requiring the consent
of the “Lenders” shall require the written consent of Required Lenders.


 






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(b)            No
amendment, modification, termination or waiver of any provision of this Agreement or any other Financing Document shall, unless in writing
and signed by Agent and by each Lender directly affected thereby: (i) increase or decrease the Applicable Commitment of any Lender
(which shall be deemed to affect all Lenders), (ii) reduce the principal of or rate of interest on any Obligation or the amount of
any fees payable hereunder, (iii) postpone the date fixed for or waive any payment of principal of or interest on any Credit Extension,
or any fees or reimbursement obligation hereunder, (iv) release all or substantially all of the Collateral, or consent to a transfer
of any of the Intellectual Property, in each case, except as otherwise expressly permitted in the Financing Documents (which shall be
deemed to affect all Lenders), (v) subordinate the lien granted in favor of Agent securing the Obligations (which shall be deemed
to affect all Lenders, except as otherwise provided below), (vi) release a Credit Party from, or consent to a Credit Party’s
assignment or delegation of, such Credit Party’s obligations hereunder and under the other Financing Documents or any Guarantor
from its guaranty of the Obligations (which shall be deemed to affect all Lenders) or (vii) amend, modify, terminate or waive this
Section 13.14(b) or the definition of “Required Lenders” or “Pro Rata Share” or any other provision
hereof specifying the number or percentage of Lenders required to amend, waive or otherwise modify any rights hereunder or make any determination
or grant any consent hereunder, without the consent of each Lender. For purposes of the foregoing, no Lender shall be deemed affected
by (i) waiver of the imposition of the Default Rate or imposition of the Default Rate to only a portion of the Obligations, (ii) waiver
of the accrual of late charges, (iii) waiver of any fee solely payable to Agent under the Financing Documents, (iv) subordination
of a lien granted in favor of Agent provided such subordination is limited to equipment being financed by a third party providing Permitted
Indebtedness. Notwithstanding any provision in this Section 13.14 to the contrary, no amendment, modification, termination
or waiver affecting or modifying the rights or obligations of Agent hereunder shall be effective unless signed by Agent and Required Lenders.


 


(c)            Agent
shall not grant its written consent to any deviation or departure by Borrower or any Credit Party from the provisions of Article 7
without the prior written consent of the Required Lenders. Required Lenders shall have the right to direct Agent to take any action described
in Section 10.2(b). Upon the occurrence of any Event of Default, Agent shall have the right to exercise any and all remedies
referenced in Section 10.2 without the written consent of Required Lenders following the occurrence of an “Exigent Circumstance”
(as defined below). All matters requiring the satisfaction or acceptance of Agent in the definition of “Permitted Convertible Indebtedness”
shall further require the satisfaction and acceptance of Required Lenders. Any reference in this Agreement to an allocation between or
sharing by the Lenders of any right, interest or obligation “ratably,” “proportionally” or in similar terms shall
refer to Pro Rata Share unless expressly provided otherwise. As used in this Section 13.14(c), “Exigent Circumstance”
means any event or circumstance that, in the reasonable judgment of Agent, imminently threatens the ability of Agent to realize upon all
or any material portion of the Collateral, such as, without limitation, fraudulent removal, concealment, or abscondment thereof, destruction
or material waste thereof, or failure of Borrower after reasonable demand to maintain or reinstate adequate casualty insurance coverage,
or which, in the judgment of Agent, could result in a material diminution in value of the Collateral.


 


13.15            Borrower
Liability. If there is more than one entity comprising Borrower, then (a) any Borrower may, acting singly, request Credit Extensions
hereunder, (b) each Borrower hereby appoints the other as agent for the other for all purposes hereunder, including with respect
to requesting Credit Extensions hereunder, (c) each Borrower shall be jointly and severally obligated to pay and perform all obligations
under the Financing Documents, including, but not limited to, the obligation to repay all Credit Extensions made hereunder and all other
Obligations, regardless of which Borrower actually receives said Credit Extensions, as if each Borrower directly received all Credit Extensions,
and (d) each Borrower waives (i) any suretyship defenses available to it under the Code or any other applicable law, and (ii) any
right to require the Lenders or Agent to: (A) proceed against any Borrower or any other person; (B) proceed against or exhaust
any security; or (C) pursue any other remedy.  The Lenders or Agent may exercise or not exercise any right or remedy they have
against any Credit Party or any security (including the right to foreclose by judicial or non-judicial sale) without affecting any other
Credit Party’s liability or any Lien against any other Credit Party’s assets.  Notwithstanding any other provision of
this Agreement or other related document, until payment in full of the Obligations and termination of the Applicable Commitments, each
Borrower irrevocably waives all rights that it may have at law or in equity (including, without limitation, any law subrogating Borrower
to the rights of the Lenders and Agent under this Agreement) to seek contribution, indemnification or any other form of reimbursement
from any other Credit Party, or any other Person now or hereafter primarily or secondarily liable for any of the Obligations, for any
payment made by any Credit Party with respect to the Obligations in connection with this Agreement or otherwise and all rights that it
might have to benefit from, or to participate in, any security for the Obligations as a result of any payment made by a Credit Party with
respect to the Obligations in connection with this Agreement or otherwise.  Any agreement providing for indemnification, reimbursement
or any other arrangement prohibited under this Section 13.15 shall be null and void.  If any payment is made to a Credit
Party in contravention of this Section 13.15, such Credit Party shall hold such payment in trust for the Lenders and Agent
and such payment shall be promptly delivered to Agent for application to the Obligations, whether matured or unmatured.


 






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13.16            Reinstatement.
This Agreement shall remain in full force and effect and continue to be effective should any petition or other proceeding be filed by
or against any Credit Party for liquidation or reorganization, should any Credit Party become insolvent or make an assignment for the
benefit of any creditor or creditors or should an interim receiver, receiver, receiver and manager or trustee be appointed for all or
any significant part of any Credit Party’s assets, and shall continue to be effective or to be reinstated, as the case may be, if
at any time payment and performance of the 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 Obligations, whether as a fraudulent preference reviewable transaction
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 Obligations shall be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced,
restored or returned.


 


13.17            USA
PATRIOT Act Notification. Agent (for itself and not on behalf of any Lender) and each Lender hereby notifies each Borrower that pursuant
to the requirements of the USA PATRIOT Act, it is required to obtain, verify and record certain information and documentation that identifies
Borrower, which information includes the name and address of Borrower and such other information that will allow Agent or such Lender,
as applicable, to identify Borrower in accordance with the USA PATRIOT Act.


 


14            AGENT


 


14.1            Appointment
and Authorization of Agent. Each Lender hereby irrevocably appoints, designates and authorizes Agent to take such action on its behalf
under the provisions of this Agreement and each other Financing Document and to exercise such powers and perform such duties as are expressly
delegated to it by the terms of this Agreement or any other Financing Document, together with such powers as are reasonably incidental
thereto. The provisions of this Article 14 are solely for the benefit of Agent and Lenders and none of Credit Parties nor
any other Person shall have any rights as a third party beneficiary of any of the provisions hereof. The duties of Agent shall be mechanical
and administrative in nature. Notwithstanding any provision to the contrary contained elsewhere herein or in any other Financing Document,
Agent shall not have any duties or responsibilities, except those expressly set forth herein, nor shall Agent have or be deemed to have
any fiduciary relationship with any Lender or participant, and no implied covenants, functions, responsibilities, duties, obligations
or liabilities shall be read into this Agreement or any other Financing Document or otherwise exist against Agent. Without limiting the
generality of the foregoing sentence, the use of the term “agent” herein and in the other Financing Documents with reference
to Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable
Law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship
between independent contracting parties. Without limiting the generality of the foregoing, Agent shall have the sole and exclusive right
and authority (to the exclusion of the Lenders), and is hereby authorized, to (a) act as collateral agent for Agent and each Lender
for purposes of the perfection of all liens created by the Financing Documents and all other purposes stated therein, (b) manage,
supervise and otherwise deal with the Collateral, (c) take such other action as is necessary or desirable to maintain the perfection
and priority of the liens created or purported to be created by the Financing Documents, (d) except as may be otherwise specified
in any Financing Document, exercise all remedies given to Agent and the other Lenders with respect to the Collateral, whether under the
Financing Documents, applicable law or otherwise and (e) execute any amendment, consent or waiver under the Financing Documents on
behalf of any Lender that has consented in writing to such amendment, consent or waiver; provided, however, that Agent hereby
appoints, authorizes and directs each Lender to act as collateral sub-agent for Agent and the Lenders for purposes of the perfection of
all liens with respect to the Collateral, including any deposit account maintained by a Credit Party with, and cash and cash equivalents
held by, such Lender, and may further authorize and direct the Lenders to take further actions as collateral sub-agents for purposes of
enforcing such liens or otherwise to transfer the Collateral subject thereto to Agent, and each Lender hereby agrees to take such further
actions to the extent, and only to the extent, so authorized and directed.


 






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14.2            Successor
Agent.


 


(a)            Agent
may at any time assign its rights, powers, privileges and duties hereunder to (i) another Lender, or (ii) any Person to whom
Agent, in its capacity as a Lender, has assigned (or will assign, in conjunction with such assignment of agency rights hereunder) fifty
percent (50%) or more of the Credit Extensions or Applicable Commitments then held by Agent (in its capacity as a Lender), in each case
without the consent of the Lenders or Borrower. Following any such assignment, Agent shall give notice to the Lenders and Borrower. An
assignment by Agent pursuant to this subsection (a) shall not be deemed a resignation by Agent for purposes of subsection
(b) below.


 


(b)            Without
limiting the rights of Agent to designate an assignee pursuant to subsection (a) above, Agent may at any time give notice
of its resignation to the Lenders and Borrower. Upon receipt of any such notice of resignation, Required Lenders shall have the right
to appoint a successor Agent. If no such successor shall have been so appointed by Required Lenders and shall have accepted such appointment
within ten (10) Business Days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of
the Lenders, appoint a successor Agent; provided, however, that if Agent shall notify Borrower and the Lenders that no Person has
accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice from Agent that no
Person has accepted such appointment and, from and following delivery of such notice, (i) the retiring Agent shall be discharged
from its duties and obligations hereunder and under the other Financing Documents, and (ii) all payments, communications and determinations
provided to be made by, to or through Agent shall instead be made by or to each Lender directly, until such time as Required Lenders appoint
a successor Agent as provided for above in this subsection (b).


 


(c)            Upon
(i) an assignment permitted by subsection (a) above, or (ii) the acceptance of a successor’s appointment as
Agent pursuant to subsection (b) above, such successor shall succeed to and become vested with all of the rights, powers,
privileges and duties of the retiring (or retired) Agent, and the retiring Agent shall be discharged from all of its duties and obligations
hereunder and under the other Financing Documents (if not already discharged therefrom as provided above in this subsection (c)).
The fees payable by Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between
Borrower and such successor. After the retiring Agent’s resignation hereunder and under the other Financing Documents, the provisions
of this Article 14 shall continue in effect for the benefit of such retiring Agent and its sub-agents in respect of any actions
taken or omitted to be taken by any of them while the retiring Agent was acting or was continuing to act as Agent.


 






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14.3            Delegation
of Duties. Agent may execute any of its duties under this Agreement or any other Financing Document by or through its, or its Affiliates’,
agents, employees or attorneys-in-fact and shall be entitled to obtain and rely upon the advice of counsel and other consultants or experts
concerning all matters pertaining to such duties. Agent shall not be responsible for the negligence or misconduct of any agent or attorney-in-fact
that it selects in the absence of gross negligence or willful misconduct. Any such Person to whom Agent delegates a duty shall benefit
from this Article 14 to the extent provided by Agent.


 


14.4            Liability
of Agent. Except as otherwise provided herein, no “Agent-Related Person” (as defined below) shall (a) be liable for
any action taken or omitted to be taken by any of them under or in connection with this Agreement or any other Financing Document or the
transactions contemplated hereby (except for its own gross negligence or willful misconduct in connection with its duties expressly set
forth herein), or (b) be responsible in any manner to any Lender or participant for any recital, statement, representation or warranty
made by any Credit Party or any officer thereof, contained herein or in any other Financing Document, or in any certificate, report, statement
or other document referred to or provided for in, or received by Agent under or in connection with, this Agreement or any other Financing
Document, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Financing Document,
or for any failure of any Credit Party or any other party to any Financing Document to perform its obligations hereunder or thereunder.
No Agent-Related Person shall be under any obligation to any Lender or participant to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions of, this Agreement or any other Financing Document, or to inspect the
Collateral, other properties or books or records of any Credit Party or any Affiliate thereof. The term “Agent-Related Person”
means the Agent, together with its Affiliates, and the officers, directors, employees, agents, advisors, auditors and attorneys-in-fact
of such Persons; provided, however, that no Agent-Related Person shall be an Affiliate of Borrower.


 


14.5            Reliance
by Agent. Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, communication, signature, resolution,
representation, notice, consent, certificate, affidavit, letter, telegram, facsimile, telex or telephone message, electronic mail message,
statement or other document or conversation believed by it to be genuine and correct and to have been signed, sent or made by the proper
Person or Persons, and upon advice and statements of legal counsel (including counsel to Borrower), independent accountants and other
experts selected by Agent. Agent shall be fully justified in failing or refusing to take any action under any Financing Document (a) if
such action would, in the opinion of Agent, be contrary to law or any Financing Document, (b) if such action would, in the opinion
of Agent, expose Agent to any potential liability under any law, statute or regulation or (c) if Agent shall not first have received
such advice or concurrence of all Lenders as it deems appropriate and, if it so requests, it shall first be indemnified to its satisfaction
by the Lenders against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such
action. Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Agreement or any other Financing
Document in accordance with a request or consent of all Lenders (or Required Lenders where authorized herein) and such request and any
action taken or failure to act pursuant thereto shall be binding upon all the Lenders.


 


14.6            Notice
of Default. Agent shall not be deemed to have knowledge or notice of the occurrence of any Default and/or Event of Default, unless
Agent shall have received written notice from a Lender or Borrower, describing such default or Event of Default. Agent will notify the
Lenders of its receipt of any such notice. While an Event of Default has occurred and is continuing, Agent may (but shall not be obligated
to) take such action, or refrain from taking such action, with respect to such Event of Default as Agent shall deem advisable or in the
best interest of the Lenders, including without limitation, satisfaction of other security interests, liens or encumbrances on the Collateral
not permitted under the Financing Documents, payment of taxes on behalf of Borrower or any other Credit Party, payments to landlords,
warehouseman, bailees and other Persons in possession of the Collateral and other actions to protect and safeguard the Collateral, and
actions with respect to insurance claims for casualty events affecting a Credit Party and/or the Collateral.


 






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14.7            Credit
Decision; Disclosure of Information by Agent. Each Lender acknowledges that no Agent-Related Person has made any representation or
warranty to it, and that no act by Agent hereafter taken, including any consent to and acceptance of any assignment or review of the affairs
of Borrower or any Affiliate thereof, shall be deemed to constitute any representation or warranty by any Agent-Related Person to any
Lender as to any matter, including whether Agent-Related Persons have disclosed material information in their possession. Each Lender
represents to Agent that it has, independently and without reliance upon any Agent-Related Person and based on such documents and information
as it has deemed appropriate, made its own appraisal of, and investigation into, the business, prospects, operations, property, financial
and other condition and creditworthiness of the Credit Parties, and all applicable bank or other regulatory Laws relating to the transactions
contemplated hereby, and made its own decision to enter into this Agreement and to extend credit to Borrower hereunder. Each Lender also
represents that it will, independently and without reliance upon any Agent-Related Person and based on such documents and information
as it shall deem appropriate at the time, continue to make its own credit analysis, appraisals and decisions in taking or not taking action
under this Agreement and the other Financing Documents, and to make such investigations as it deems necessary to inform itself as to the
business, prospects, operations, property, financial and other condition and creditworthiness of Borrower. Except for notices, reports
and other documents expressly required to be furnished to the Lenders by Agent herein, Agent shall not have any duty or responsibility
to provide any Lender with any credit or other information concerning the business, prospects, operations, property, financial and other
condition or creditworthiness of any Credit Party which may come into the possession of any Agent-Related Person.


 


14.8            Indemnification
of Agent. Whether or not the transactions contemplated hereby are consummated, each Lender shall, severally and pro rata based on
its respective Pro Rata Share, indemnify upon demand each Agent-Related Person (to the extent not reimbursed by or on behalf of Borrower
and without limiting the obligation of Borrower to do so), and hold harmless each Agent-Related Person from and against any and all Indemnified
Liabilities (which shall not include legal expenses of Agent incurred in connection with the closing of the transactions contemplated
by this Agreement) incurred by it; provided, however, that no Lender shall be liable for the payment to any Agent-Related Person
of any portion of such Indemnified Liabilities to the extent determined in a judgment by a court of competent jurisdiction to have resulted
from such Agent-Related Person’s own gross negligence or willful misconduct; provided, however, that no action taken in accordance
with the directions of the Required Lenders shall be deemed to constitute gross negligence or willful misconduct for purposes of this
Section 14.8. Without limitation of the foregoing, each Lender shall, severally and pro rata based on its respective Pro Rata
Share, reimburse Agent upon demand for its ratable share of any costs or out-of-pocket expenses (including Protective Advances incurred
after the closing of the transactions contemplated by this Agreement) incurred by Agent (in its capacity as Agent, and not as a Lender)
in connection with the preparation, execution, delivery, administration, modification, amendment or enforcement (whether through negotiations,
legal proceedings or otherwise) of, or legal advice in respect of rights or responsibilities under, this Agreement, any other Financing
Document, or any document contemplated by or referred to herein, to the extent that Agent is not reimbursed for such expenses by or on
behalf of Borrower. The undertaking in this Section 14.8 shall survive the payment in full of the Obligations, the termination
of this Agreement and the resignation of Agent.


 


14.9            Agent
in its Individual Capacity. With respect to its Credit Extensions, MidCap shall have the same rights and powers under this Agreement
as any other Lender and may exercise such rights and powers as though it were not Agent, and the terms “Lender” and “Lenders”
include MidCap in its individual capacity. MidCap and its Affiliates may lend money to, invest in, and generally engage in any kind of
business with, any Credit Party and any of their Affiliates and any person who may do business with or own securities of any Credit Party
or any of their Affiliates, all as if MidCap were not Agent and without any duty to account therefor to Lenders. MidCap and its Affiliates
may accept fees and other consideration from a Credit Party for services in connection with this Agreement or otherwise without having
to account for the same to Lenders. Each Lender acknowledges the potential conflict of interest between MidCap as a Lender holding disproportionate
interests in the Credit Extensions and MidCap as Agent, and expressly consents to, and waives, any claim based upon, such conflict of
interest.


 






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14.10            Agent
May File Proofs of Claim. In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement,
adjustment, composition or other judicial proceeding relative to any Credit Party, Agent (irrespective of whether the principal of any
Credit Extension, shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether Agent shall
have made any demand on such Credit Party) shall be entitled and empowered, by intervention in such proceeding or otherwise:


 


(a)            to
file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Credit Extensions and all
other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims
of the Lenders and Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Lenders and
Agent and their respective agents and counsel and all other amounts due the Lenders and Agent allowed in such judicial proceeding); and


 


(b)            to
collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same;


 


and any custodian, receiver,
assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender
to make such payments to Agent and, in the event that Agent shall consent to the making of such payments directly to the Lenders, to pay
to Agent any amount due for the reasonable compensation, expenses, disbursements and advances of Agent and its agents and counsel, including
Protective Advances. To the extent that Agent fails timely to do so, each Lender may file a claim relating to such Lender’s claim.


 


14.11            Collateral
and Guaranty Matters. The Lenders irrevocably authorize Agent, at its option and in its discretion, to release (a) any Credit
Party and any Lien on any Collateral granted to or held by Agent under any Financing Document upon the date that all Obligations due hereunder
have been fully and indefeasibly paid in full and no Applicable Commitments or other obligations of any Lender to provide funds to Borrower
under this Agreement remain outstanding, and (b) any Lien on any Collateral that is transferred or to be transferred as part of or
in connection with any transfer permitted hereunder or under any other Financing Document. Upon request by Agent at any time, all Lenders
will confirm in writing Agent’s authority to release its interest in particular types or items of Collateral pursuant to this Section 14.11.


 


14.12            Advances;
Payments; Non-Funding Lenders.


 


(a)            Advances;
Payments. If Agent receives any payment for the account of Lenders on or prior to 11:00 a.m. (New York time) on any Business
Day, Agent shall pay to each applicable Lender such Lender’s Pro Rata Share of such payment on such Business Day. If Agent receives
any payment for the account of Lenders after 11:00 a.m. (New York time) on any Business Day, Agent shall pay to each applicable
Lender such Lender’s Pro Rata Share of such payment on the next Business Day. To the extent that any Lender has failed to fund any
Credit Extension (a “Non-Funding Lender”), Agent shall be entitled to set-off the funding short-fall against that Non-Funding
Lender’s Pro Rata Share of all payments received from Borrower.


 






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(b)            Return
of Payments.


 


(i)            If
Agent pays an amount to a Lender under this Agreement in the belief or expectation that a related payment has been or will be received
by Agent from a Credit Party and such related payment is not received by Agent, then Agent will be entitled to recover such amount (including
interest accruing on such amount at the Federal Funds Rate for the first Business Day and thereafter, at the rate otherwise applicable
to such Obligation) from such Lender on demand without set-off, counterclaim or deduction of any kind.


 


(ii)            If
Agent determines at any time that any amount received by Agent under this Agreement must be returned to a Credit Party or paid to any
other person pursuant to any insolvency law or otherwise, then, notwithstanding any other term or condition of this Agreement or any other
Financing Document, Agent will not be required to distribute any portion thereof to any Lender. In addition, each Lender will repay to
Agent on demand any portion of such amount that Agent has distributed to such Lender, together with interest at such rate, if any, as
Agent is required to pay to a Credit Party or such other person, without set-off, counterclaim or deduction of any kind.


 


14.13            Miscellaneous.


 


(a)            Neither
Agent nor any Lender shall be responsible for the failure of any Non-Funding Lender to make a Credit Extension or make any other advance
required hereunder. The failure of any Non-Funding Lender to make any Credit Extension or any payment required by it hereunder shall not
relieve any other Lender (each such other Lender, an “Other Lender”) of its obligations to make the Credit Extension
or payment required by it, but neither any Other Lender nor Agent shall be responsible for the failure of any Non-Funding Lender to make
a Credit Extension or make any other payment required hereunder. Notwithstanding anything set forth herein to the contrary, a Non-Funding
Lender shall not have any voting or consent rights under or with respect to any Financing Document or constitute a “Lender”
(or be included in the calculation of “Required Lender” hereunder) for any voting or consent rights under or with respect
to any Financing Document. At Borrower’s request, Agent or a person reasonably acceptable to Agent shall have the right with Agent’s
consent and in Agent’s sole discretion (but shall have no obligation) to purchase from any Non-Funding Lender, and each Non-Funding
Lender agrees that it shall, at Agent’s request, sell and assign to Agent or such person, all of the Applicable Commitments and
all of the outstanding Credit Extensions of that Non-Funding Lender for an amount equal to the principal balance of the Credit Extensions
held by such Non-Funding Lender and all accrued interest and fees with respect thereto through the date of sale, such purchase and sale
to be consummated pursuant to an executed assignment agreement reasonably acceptable to Agent.


 


(b)            Each
Lender shall promptly remit to the other Lenders such sums as may be necessary to ensure the ratable repayment of each Lender’s
portion of any Credit Extension and the ratable distribution of interest, fees and reimbursements paid or made by any Credit Party. Notwithstanding
the foregoing, if this Agreement requires payments of principal and interest to be made directly to the Lenders, a Lender receiving a
scheduled payment shall not be responsible for determining whether the other Lenders also received their scheduled payment on such date;
provided, however, if it is determined that a Lender received more than its ratable share of scheduled payments made on any date
or dates, then such Lender shall remit to the Agent (for Agent to redistribute to itself and the Lenders in a manner to ensure the payment
to Agent of any sums due Agent hereunder and the ratable repayment of each Lender’s portion of any Credit Extension and the ratable
distribution of interest, fees and reimbursements) such sums as may be necessary to ensure the ratable payment of such scheduled payments,
as instructed by Agent. If any payment or distribution of any kind or character, whether in cash, properties or securities and whether
voluntary, involuntary, through the exercise of any right of set-off, or otherwise, shall be received by a Lender in excess of its ratable
share, then (i) the portion of such payment or distribution in excess of such Lender’s ratable share shall be received by such
Lender in trust for application to the payments of amounts due on the other Lender’s claims, or, in the case of Collateral, shall
hold such Collateral for itself and as agent and bailee for the Agent and other Lenders and (ii) such Lender shall promptly advise
the Agent of the receipt of such payment, and, within five (5) Business Days of such receipt and, in the case of payments and distributions,
such Lender shall purchase (for cash at face value) from the other Lenders (through the Agent), without recourse, such participations
in the Credit Extension made by the other Lenders as shall be necessary to cause such purchasing Lender to share the excess payment ratably
with each of them in accordance with the respective Pro Rata Shares of the Lenders; provided, however, that if all or any
portion of such excess payment is thereafter recovered by or on behalf of a Credit Party from such purchasing Lender, the purchase shall
be rescinded and the purchase price restored to the extent of such recovery, but without interest; provided, further, that
the provisions of this Section 14.13(b)  shall not be construed to apply to (x) any payment made by a Credit Party
pursuant to and in accordance with the express terms of this Agreement or the other Financing Documents, or (y) any payment obtained
by a Lender as consideration for the assignment of or sale of a participation in any of its Applicable Commitment pursuant to Section 13.1.
Borrower agrees that any Lender so purchasing a participation from another Lender pursuant to this Section 14.13(b) 
may exercise all its rights of payment (including the right of set-off) with respect to such participation as fully as if such Lender
were the direct creditor of the Borrower in the amount of such participation. No documentation other than notices and the like shall be
required to implement the terms of this Section 14.13(b). The Agent shall keep records (which shall be conclusive and binding
in the absence of manifest error) of participations purchased pursuant to this Section 14.13(b) and shall in each case
notify the Lenders following any such purchases.


 






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15            DEFINITIONS


 


In addition to any terms defined
elsewhere in this Agreement, or in any schedule or exhibit attached hereto, as used in this Agreement, the following terms have the following
meanings:


 


“Access Agreement”
means a landlord consent, bailee letter or warehouseman’s letter, in form and substance reasonably satisfactory to Agent, in favor
of Agent executed by such landlord, bailee or warehouseman, as applicable, for any third party location.


 


“Account”
means any “account”, as defined in the Code, with such additions to such term as may hereafter be made, and includes, without
limitation, all accounts receivable and other sums owing to Borrower.


 


“Account Debtor”
means any “account debtor”, as defined in the Code, with such additions to such term as may hereafter be made.


 


“Affiliate”
means, with respect to any Person, a Person that owns or controls directly or indirectly the Person, any Person that controls or is controlled
by or is under common control with the Person, and each of that Person’s senior executive officers, directors, partners and, for
any Person that is a limited liability company, that Person’s managers and members.


 


“Agent”
means, MidCap, not in its individual capacity, but solely in its capacity as agent on behalf of and for the benefit of the Lenders, together
with its successors and assigns.


 


“Agreement”
has the meaning given it in the preamble of this Agreement.


 






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“Anti-Terrorism
Laws” means any Laws relating to terrorism or money laundering, including Executive Order No. 13224 (effective September 24,
2001), the USA PATRIOT Act, the Laws comprising or implementing the Bank Secrecy Act, and the Laws administered by OFAC.


 


“Applicable Commitment”
has the meaning given it in Section 2.2.


 


“Applicable Floor”
means for each Credit Facility the per annum rate of interest specified on the Credit Facility Schedule; provided, however, that for the
Applicable Prime Rate, the Applicable Floor is a per annum rate that is three hundred (300) basis points above the Applicable Floor for
the Applicable Libor Rate.


 


“Applicable Index
Rate” means, for any Applicable Interest Period, the rate per annum determined by Agent equal to the Applicable Libor Rate;
provided, however, that in the event that any change in market conditions or any law, regulation, treaty, or directive, or any change
therein or in the interpretation of application thereof, shall at any time after the date hereof, in the reasonable opinion of Agent or
any Lender, make it unlawful or impractical for Agent or such Lender to fund or maintain Obligations bearing interest based upon the Applicable
Libor Rate, Agent or such Lender shall give notice of such changed circumstances to Agent and Borrower and the Applicable Index Rate for
Obligations outstanding or thereafter extended or made by Agent or such Lender shall thereafter be the Applicable Prime Rate until Agent
or such Lender determines (as to the portion of the Credit Extensions or Obligations owed to it) that it would no longer be unlawful or
impractical to fund or maintain such Obligations or Credit Extensions at the Applicable Libor Rate. In the event that Agent shall have
determined (which determination shall be final and conclusive and binding upon all parties hereto), as of any Applicable Interest Rate
Determination Date, that adequate and fair means do not exist for ascertaining the interest rate applicable to any Credit Facility on
the basis provided for herein, then Agent may select a comparable replacement index and corresponding margin.


 


“Applicable Interest
Period” for each Credit Facility has the meaning specified for that Credit Facility in the Credit Facility Schedule; provided,
however, that at any time that the Applicable Prime Rate is the Applicable Index Rate, Applicable Interest Period shall mean the period
commencing as of the most recent Applicable Interest Rate Determination Date and continuing until the next Applicable Interest Rate Determination
Date or such earlier date as the Applicable Prime Rate shall no longer be the Applicable Index Rate; and provided, further, that at any
time the Libor Rate Index is adjusted as set forth in the definition thereof, or re-implemented following invocation of the Applicable
Prime Rate as permitted herein, the Applicable Interest Period shall mean the period commencing as of such adjustment or re-implementation
and continuing until the next Applicable Interest Rate Determination Date, if any.


 


“Applicable
Interest Rate” means a per annum rate of interest equal to the Applicable Index Rate plus the Applicable Margin.


 


“Applicable Interest
Rate Determination Date” means the second (2nd) Business Day prior to the first (1st) day of the related Applicable Interest
Period; provided, however, that at any time that the Applicable Prime Rate is the Applicable Index Rate, Applicable Interest Rate Determination
Date means the date of any change in the Base Rate Index; and provided, further, that at any time the Libor Rate Index is adjusted as
set forth in the definition thereof, the Applicable Interest Rate Determination Date shall mean the date of such adjustment or the second
(2nd) Business Day prior to the first (1st) day of the related Applicable Interest Period, as elected by Agent.


 


“Applicable
Libor Rate” means, for any Applicable Interest Period, the rate per annum, determined by Agent (rounded upwards, if necessary,
to the next 1/100th%), equal to the greater of (a) the Applicable Floor and (b) the Libor Rate Index.


 






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“Applicable Margin”
for each Credit Facility has the meaning specified for that Credit Facility in the Credit Facility Schedule.


 


“Applicable Prepayment
Fee”, for each Credit Facility, has the meaning given it in the Credit Facility Schedule for such Credit Facility.


 


“Applicable
Prime Rate” means, for any Applicable Interest Period, the rate per annum, determined by Agent (rounded upwards, if necessary,
to the next 1/100th%), equal to the greater of (a) the Applicable Floor and (b) the Base Rate Index.


 


“Approved Fund”
means any (a) investment company, fund, trust, securitization vehicle or conduit that is (or will be) engaged in making, purchasing,
holding or otherwise investing in commercial loans and similar extensions of credit in the Ordinary Course of Business, or (b) any
Person (other than a natural person) which temporarily warehouses loans for any Lender or any entity described in the preceding clause
(a) and that, with respect to each of the preceding clauses (a) and (b), is administered or managed by (i) a Lender, (ii) an
Affiliate of a Lender or (iii) a Person (other than a natural person) or an Affiliate of a Person (other than a natural person) that
administers or manages a Lender.


 


“Base
Rate Index” means, for any Applicable Interest Period, the rate per annum, determined by Agent (rounded upwards, if necessary,
to the next 1/100th%) as being the rate of interest announced, from time to time, within Wells Fargo Bank, N.A. (“Wells Fargo”)
at its principal office in San Francisco as its “prime rate,” with the understanding that the “prime rate” is
one of Wells Fargo’s base rates (not necessarily the lowest of such rates) and serves as the basis upon which effective rates of
interest are calculated for those loans making reference thereto and is evidenced by the recording thereof after its announcement in such
internal publications as Wells Fargo may designate; provided, however, that Agent may, upon prior written notice to any Borrower, choose
a reasonably comparable index or source to use as the basis for the Base Rate Index.


 


“Blocked
Person” means: (a) any Person listed in the annex to, or is otherwise subject to the provisions of, Executive Order
No. 13224, (b) a Person owned or controlled by, or acting for or on behalf of, any Person that is listed in the annex to, or
is otherwise subject to the provisions of, Executive Order No. 13224, (c) a Person with which any Lender is prohibited from
dealing or otherwise engaging in any transaction by any Anti-Terrorism Law, (d) a Person that commits, threatens or conspires to
commit or supports “terrorism” as defined in Executive Order No. 13224, or (e) a Person that is named a “specially
designated national” or “blocked person” on the most current list published by OFAC or other similar list.


 


“Books”
means all of books and records of a Person, including ledgers, federal and state tax returns, records regarding the Person’s assets
or liabilities, the Collateral, business operations or financial condition, and all computer programs or storage or any equipment containing
such information.


 


“Borrower”
mean the entity(ies) described in the first paragraph of this Agreement and each of their successors and permitted assigns. The term “each
Borrower” shall refer to each Person comprising the Borrower if there is more than one such Person, or the sole Borrower if there
is only one such Person. The term “any Borrower” shall refer to any Person comprising the Borrower if there is more than one
such Person, or the sole Borrower if there is only one such Person.


 


“Borrower Unrestricted
Cash” means, as of any date of calculation, unrestricted cash and cash equivalents of Borrower that (a) are subject to
Agent’s first priority perfected lien and held in the name of Borrower in a Deposit Account or Securities Account that is subject
to a Control Agreement in favor of Agent at a bank or financial institution located in the United States, and (b) are not funds for
the payment of a drawn or committed but unpaid draft, ACH or EFT transaction, in each case as of such date.


 






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“Borrower Unrestricted
Cash Threshold” means, as of any date of determination, an amount equal to the product of (x) 1.05 multiplied by
(y) the aggregate principal amount of the Obligation outstanding as of such date.


 


“Borrower Unrestricted
Cash Trigger Date” has the meaning given it in Section 6.15(g).


 


“Borrowing Resolutions”
means, with respect to any Person, those resolutions, in form and substance satisfactory to Agent, adopted by such Person’s Board
of Directors or other appropriate governing body and delivered by such Person to Agent approving the Financing Documents to which such
Person is a party and the transactions contemplated thereby, as well as any other approvals as may be necessary or desired to approve
the entering into the Financing Documents or the consummation of the transactions contemplated thereby or in connection therewith.


 


“Business Day”
means any day except a Saturday, Sunday or other day on which either the New York Stock Exchange is closed, or on which commercial banks
in New York, New York are authorized by Law to close and, in the case of a Business Day which relates to a determination of the LIBOR
Rate, a day on which dealings are carried on in the London interbank eurodollar market.


 


“Change in Control”
means any event, transaction, or occurrence as a result of which (a) any “person” (as such term is defined in Sections
3(a)(9) and 13(d)(3) of the Exchange Act), other than a trustee or other fiduciary holding securities under an employee benefit
plan of Borrower, is or becomes a beneficial owner (within the meaning Rule 13d-3 promulgated under the Exchange Act), directly or
indirectly, of securities of Borrower, representing twenty-five percent (25%) or more of the combined voting power of Borrower’s
then outstanding securities); (b) during any period of twelve consecutive calendar months, individuals who at the beginning of such
period constituted the board of directors or managers of Borrower (together with any new directors or managers whose election by the board
of directors or managers of Borrower was approved by a vote of not less than two-thirds of the directors then still in office who either
were directors at the beginning of such period or whose election or nomination for election was previously so approved) cease for any
reason other than death or disability to constitute a majority of the directors then in office; (c) the occurrence of any “change
in control” or any term of similar effect under any Material Agreement; (d) Borrower ceases to own and control, directly or
indirectly, all of the economic and voting rights associated with the outstanding voting capital stock (or other voting equity interest)
of each of its Subsidiaries; (e) any of the chief executive officer, the chief financial officer or the chief scientific officer
of Borrower as of the date hereof shall cease to be involved in the day to day operations (including research and development) or management
of the business of Borrower, and a successor of such officer reasonably acceptable to Agent is not appointed on terms reasonably acceptable
to Agent within 90 days of such cessation or involvement; or (f) the occurrence of any “Corporate Transaction” as defined
in the Note Purchase Agreement.


 


“Chattel Paper”
means any “chattel paper”, as defined in the Code, with such additions to such term as may hereafter be made, and includes,
without limitation, all tangible and electronic chattel paper.


 


“Closing Date”
has the meaning given it in the preamble of this Agreement.


 


“Code”
means the Uniform Commercial Code in effect on the date hereof, as the same may, from time to time, be enacted and in effect in the State
of Maryland; provided, however, that to the extent that the Code is used to define any term herein or in any Financing Document
and such term is defined differently in different Articles or Divisions of the Code, the definition of such term contained in Article or
Division 9 shall govern; and provided, further, that in the event that, by reason of mandatory provisions of Law, any or all of
the attachment, perfection, or priority of, or remedies with respect to, Agent’s Lien on any Collateral is governed by the Uniform
Commercial Code in effect in a jurisdiction other than the State of Maryland the term “Code” shall mean the Uniform
Commercial Code as enacted and in effect in such other jurisdiction solely for purposes of the provisions thereof relating to such attachment,
perfection, priority, or remedies and for purposes of definitions relating to such provisions.


 






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“Collateral”
means all property, now existing or hereafter acquired, mortgaged or pledged to, or purported to be subjected to a Lien in favor of, Agent,
for the benefit of Agent and Lenders, pursuant to this Agreement and the other Financing Documents, including, without limitation, all
of the property described in Exhibit A hereto.


 


“Collateral Account”
means any Deposit Account, Securities Account or Commodity Account.


 


“Commitment Commencement
Date” has the meaning given it in the Credit Facility Schedule.


 


“Commitment Termination
Date” has the meaning given it in the Credit Facility Schedule.


 


“Commodity Account”
means any “commodity account”, as defined in the Code, with such additions to such term as may hereafter be made.


 


“Communication”
has the meaning given it in Article 11.


 


“Compliance Certificate”
means a certificate, duly executed by an authorized officer of Borrower, appropriately completed and substantially in the form of Exhibit B.


 


“Contingent Obligation”
means, for any Person, any direct or indirect liability, contingent or not, of that Person for (a) any indebtedness, lease, dividend,
letter of credit or other obligation of another such as an obligation directly or indirectly guaranteed, endorsed, co-made, discounted
or sold with recourse by that Person, or for which that Person is directly or indirectly liable; (b) any obligations for undrawn
letters of credit for the account of that Person; and (c) all obligations from any interest rate, currency or commodity swap agreement,
interest rate cap or collar agreement, or other agreement or arrangement designated to protect a Person against fluctuation in interest
rates, currency exchange rates or commodity prices; but “Contingent Obligation” does not include endorsements in the Ordinary
Course of Business. The amount of a Contingent Obligation is the stated or determined amount of the primary obligation for which the Contingent
Obligation is made or, if not determinable, the maximum reasonably anticipated liability for it determined by the Person in good faith;
but the amount may not exceed the maximum of the obligations under any guarantee or other support arrangement.


 


“Control Agreement”
means any control agreement entered into among the depository institution at which Borrower maintains a Deposit Account or the securities
intermediary or commodity intermediary at which Borrower maintains a Securities Account or a Commodity Account, Borrower, and Agent pursuant
to which Agent obtains control (within the meaning of the Code) for the benefit of the Lenders over such Deposit Account, Securities Account
or Commodity Account.


 


“Credit Extension”
means an advance or disbursement of proceeds to or for the account of Borrower in respect of a Credit Facility.


 


“Credit Extension
Form” means that certain form attached hereto as Exhibit C, as the same may be from time to time revised by Agent.


 


“Credit Facility”
means a credit facility specified on the Credit Facility Schedule.


 






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“Credit Party”
means each Borrower and each Guarantor and “Credit Parties” means all such Persons, collectively provided, however, that in
no event shall a Securities Subsidiary or Ocular Europe be deemed to be be a “Credit Party” for purposes of this Agreement
or the other Financing Documents.


 


“Default”
means any fact, event or circumstance which with notice or passage of time or both, could constitute an Event of Default.


 


“Default Rate”
has the meaning given it in Section 2.6(b).


 


“Deposit Account”
means any “deposit account” as defined in the Code with such additions to such term as may hereafter be made.


 


“Designated Funding
Account” is Borrower’s Deposit Account, account number 3300540510, maintained with Silicon Valley Bank and over which
Agent has been granted control for the ratable benefit of all Lenders.


 


“Dollars,”
 “dollars” and “$” each means lawful money of the United States.


 


“Eligible Assignee”
means (a) a Lender, (b) an Affiliate of a Lender, (c) an Approved Fund, and (d) any other Person (other than a natural
person) approved by Agent; provided, however, that notwithstanding the foregoing, “Eligible Assignee” shall not include
any Credit Party or any Subsidiary of a Credit Party. Notwithstanding the foregoing, in connection with assignments by a Lender due to
a forced divestiture at the request of any regulatory agency, the restrictions set forth herein shall not apply and Eligible Assignee
shall mean any Person or party becoming an assignee incident to such forced divestiture.


 


“Environmental Law”
means all any law (statutory or common), ordinance, treaty, rule, regulation, order, policy, other legal requirement or determination
of an arbitrator or of a Governmental Authority and/or Required Permits imposing liability or standards of conduct for or relating to
the regulation and protection of human health, safety, the workplace, the environment and natural resources, and including public notification
requirements and environmental transfer of ownership, notification or approval statutes.


 


“Equipment”
means all “equipment”, as defined in the Code, with such additions to such term as may hereafter be made, and includes without
limitation all machinery, fixtures, goods, vehicles (including motor vehicles and trailers), and any interest in any of the foregoing.


 


“ERISA”
means the Employee Retirement Income Security Act of 1974, and all regulations promulgated thereunder.


 


“Event of Default”
has the meaning given it in Section 10.1.


 


“Exigent Circumstance”
has the meaning given it in Section 13.14.


 


“Federal Funds Rate”
means, for any day, the rate per annum equal to the weighted average of the rates on overnight Federal funds transactions with members
of the Federal Reserve System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank of New York on the
Business Day next succeeding such day, provided that if no such rate is so published on such next succeeding Business Day, the
Federal Funds Rate for such day shall be the average rate quoted to Agent on such day on such transactions as determined by Agent in a
commercially reasonable manner.


 






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“Fee Letters”
means, collectively, the fee letter agreements among Borrower and Agent and Borrower and each Lender.


 


“Financing Documents”
means, collectively, this Agreement, the Perfection Certificate, the Fee Letter(s), the Subordination Agreement, each Security Document,
each note and guarantee executed by one or more Credit Parties in connection with the indebtedness governed by this Agreement, and each
other present or future agreement executed by one or more Credit Parties and, or for the benefit of, the Lenders and/or Agent in connection
with this Agreement, all as amended, restated, or otherwise modified from time to time.


 


“Foreign Lender”
has the meaning given it in Section 2.6(h)(iii).


 


“Funding Date”
means any date on which a Credit Extension is made to or on account of Borrower which shall be a Business Day.


 


“GAAP”
means generally accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in
such other statements by such other Person as may be approved by a significant segment of the accounting profession in the United States,
which are applicable to the circumstances as of the date of determination.


 


“General Intangibles”
means all “general intangibles”, as defined in the Code, with such additions to such term as may hereafter be made, and includes
without limitation, all copyright rights, copyright applications, copyright registrations and like protections in each work of authorship
and derivative work, whether published or unpublished, any patents, trademarks, service marks and, to the extent permitted under applicable
Law, any applications therefor, whether registered or not, any trade secret rights, including any rights to unpatented inventions, payment
intangibles, royalties, contract rights, goodwill, franchise agreements, purchase orders, customer lists, route lists, telephone numbers,
domain names, claims, income and other tax refunds, security and other deposits, options to purchase or sell real or personal property,
rights in all litigation presently or hereafter pending (whether in contract, tort or otherwise), insurance policies (including, without
limitation, key man, property damage, and business interruption insurance), payments of insurance and rights to payment of any kind.


 


“Governmental Authority”
means any nation or government, any state or other political subdivision thereof, any agency, authority, instrumentality, regulatory body,
court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative functions of or
pertaining to government, any securities exchange and any self-regulatory organization.


 


“Guarantor”
means any present or future guarantor of the Obligations.


 


“Hazardous Materials”
means petroleum and petroleum products and compounds containing them, including gasoline, diesel fuel and oil; explosives, flammable materials;
radioactive materials; polychlorinated biphenyls and compounds containing them; lead and lead-based paint; asbestos or asbestos-containing
materials; underground or above-ground storage tanks, whether empty or containing any substance; any substance the presence of which is
prohibited by any Laws; toxic mold, any substance that requires special handling; and any other material or substance now or in the future
defined as a “hazardous substance,” “hazardous material,” “hazardous waste,” “toxic substance,”
 “toxic pollutant,” “contaminant,” “pollutant” or other words of similar import within the meaning
of any Environmental Law, including: (a) any “hazardous substance” defined as such in (or for purposes of) CERCLA, or
any so-called “superfund” or “superlien” Law, including the judicial interpretation thereof; (b) any “pollutant
or contaminant” as defined in 42 U.S.C.A. § 9601(33); (c) any material now defined as “hazardous waste” pursuant
to 40 C.F.R. Part 260; (d) any petroleum or petroleum by-products, including crude oil or any fraction thereof; (e) natural
gas, natural gas liquids, liquefied natural gas, or synthetic gas usable for fuel; (f) any “hazardous chemical” as defined
pursuant to 29 C.F.R. Part 1910; (g) any toxic or harmful substances, wastes, materials, pollutants or contaminants (including,
without limitation, asbestos, polychlorinated biphenyls (“PCB’s”), flammable explosives, radioactive materials,
infectious substances, materials containing lead-based paint or raw materials which include hazardous constituents); and (h) any
other toxic substance or contaminant that is subject to any Environmental Laws or other past or present requirement of any Governmental
Authority.


 






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“Hazardous Materials
Contamination” means contamination (whether now existing or hereafter occurring) of the improvements, buildings, facilities,
personalty, soil, groundwater, air or other elements on or of the relevant property by Hazardous Materials, or any derivatives thereof,
or on or of any other property as a result of Hazardous Materials, or any derivatives thereof, generated on, emanating from or disposed
of in connection with the relevant property.


 


“Indebtedness”
means (a) indebtedness for borrowed money (including the Obligations) or the deferred price of property or services, such as reimbursement
and other obligations for surety bonds and letters of credit, (b) obligations evidenced by notes, bonds, debentures or similar instruments,
(c) capital lease obligations, (d) non-contingent obligations of such Person to reimburse any bank or other Person in respect
of amounts paid under a letter of credit, banker’s acceptance or similar instrument, (e) equity securities of such Person subject
to repurchase or redemption other than at the sole option of such Person, (f) obligations secured by a Lien on any asset of such
Person, whether or not such obligation is otherwise an obligation of such Person, (g) “earnouts”, purchase price adjustments,
profit sharing arrangements, deferred purchase money amounts and similar payment obligations or continuing obligations of any nature of
such Person arising out of purchase and sale contracts, (h) all Indebtedness of others guaranteed by such Person, (i) off-balance
sheet liabilities and/or pension plan or multiemployer plan liabilities of such Person, (j) obligations arising under non-compete
agreements, (k) obligations arising under bonus, deferred compensation, incentive compensation or similar arrangements, other than
those arising in the Ordinary Course of Business, and (l) Contingent Obligations.


 


“Indemnified Liabilities”
means those liabilities described in Section 13.2(a) and (b).


 


“Indemnitee”
has the meaning given it in Section 13.2.


 


“Insolvency Proceeding”
means any proceeding by or against any Person under the United States Bankruptcy Code, or any other bankruptcy or insolvency Law, including
assignments for the benefit of creditors, compositions, extensions generally with its creditors, or proceedings seeking reorganization,
arrangement, or other relief.


 


“Intellectual Property”
includes without limitation, all copyright rights, copyright applications, copyright registrations and like protections in each work of
authorship and derivative work, whether published or unpublished, any patents, patent applications and like protections, including improvements,
divisions, continuations, renewals, reissues, extensions, and continuations-in-part of the same, trademarks, trade names, service marks,
mask works, rights of use of any name, domain names, or any other similar rights, any applications therefor, whether registered or not,
know-how, operating manuals, trade secret rights, clinical and non-clinical data, rights to unpatented inventions, and any claims for
damage by way of any past, present, or future infringement of any of the foregoing.


 


“Inventory”
means all “inventory”, as defined in the Code, with such additions to such term as may hereafter be made, and includes without
limitation all merchandise, raw materials, parts, supplies, packing and shipping materials, work in process and finished products, including
without limitation such inventory as is temporarily out of Borrower’s custody or possession or in transit and including any returned
goods and any documents of title representing any of the above.


 






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“Investment”
means, with respect to any Person, directly or indirectly, (a) to purchase or acquire any stock or stock equivalents, or any obligations
or other securities of, or any interest in, any Person, including the establishment or creation of a Subsidiary, (b) to make or commit
to make any acquisition of all or substantially all of the assets of another Person, or of any business, Product, business line or product
line, division or other unit operation of any Person or (c) make or purchase any advance, loan, extension of credit or capital contribution
to, or any other investment in, any Person.


 


“IP Security Agreement”
means any security agreement executed by Borrower that grants (or is prepared as a notice filing or recording with respect to) a Lien
or security interest in favor of Agent and/or Lenders on Intellectual Property, each as amended, restated, or otherwise modified from
time to time.


 


“Joinder Requirements”
has the meaning set forth in Section 6.8.


 


“Laws”
means any and all federal, state, provincial, territorial, local and foreign statutes, laws, judicial decisions, regulations, guidance,
guidelines, ordinances, rules, judgments, orders, decrees, codes, plans, injunctions, permits, concessions, grants, franchises, governmental
agreements and governmental restrictions, whether now or hereafter in effect, which are applicable to any Credit Party in any particular
circumstance.


 


“Lender”
means any one of the Lenders.


 


“Lenders”
means the Persons identified on the Credit Facility Schedule as amended from time to time to reflect assignments made in accordance
with this Agreement.


 


“Libor Rate Index”
means, for any Applicable Interest Period, the rate per annum, determined by Agent (rounded upwards, if necessary, to the next 1/100th%)
by dividing (a) the rate per annum, determined by Agent in accordance with its customary procedures, and utilizing such electronic
or other quotation sources as it considers appropriate (rounded upwards, if necessary, to the next 1/100%), to be the rate at which Dollar
deposits (for delivery on the first day of such Applicable Interest Period or, if such day is not a Business Day, on the preceding Business
Day) in the amount of One Million Dollars ($1,000,000) are offered to major banks in the London interbank market on or about 11:00 a.m. (New
York time) on the Applicable Interest Rate Determination Date, for a period of thirty (30) days, which determination shall be conclusive
in the absence of manifest error, by (b) 100% minus the Reserve Percentage; provided, however, that Agent may, upon prior written
notice to any Borrower, choose a reasonably comparable index or source to use as the basis for the Libor Rate Index; provided, further,
that Agent may in its reasonable discretion designate a successor interest rate index, in consultation with Borrower, if Agent determines
in good faith for any reason that (x) it is not reasonably possible to determine the Libor Rate Index, (y) the Libor Rate Index
is no longer available, or (z) it is no longer lawful for any Lender to make or maintain Credit Extensions based on the Libor Rate
Index; provided that the “all in” interest rate based on such successor interest rate index at the time such index is implemented
shall not be greater than the “all in” interest rate immediately prior to implementing such successor index (and further subject
to adjustments based on any changes in such successor interest rate index). The Libor Rate Index may be adjusted by Agent with respect
to any Lender on a prospective basis to take into account any additional or increased costs to such Lender of maintaining or obtaining
any eurodollar deposits or increased costs, in each case, due to changes in applicable Law occurring subsequent to the commencement of
the then Applicable Interest Period, including changes in tax laws (except changes of general applicability in corporate income tax laws)
and changes in the reserve requirements imposed by the Board of Governors of the Federal Reserve System (or any successor), which additional
or increased costs would increase the cost of funding loans bearing interest based upon the Libor Rate Index; provided, however, that
notwithstanding anything in this Agreement to the contrary, (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and
all requests, rules, guidelines or directives thereunder or issued in connection therewith and (ii) all requests, rules, guidelines
or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar
authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to
be a “change in applicable Law”, regardless of the date enacted, adopted or issued. In any such event, the affected Lender
shall give Borrower and Agent notice of such a determination and adjustment and Agent promptly shall transmit the notice to each other
Lender and, upon its receipt of the notice from the affected Lender, Borrower may, by notice to such affected Lender require such Lender
to furnish to Borrower a statement setting forth the basis for adjusting such Libor Rate Index and the method for determining the amount
of such adjustment.


 






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“Lien”
means a claim, mortgage, deed of trust, lien, levy, charge, pledge, security interest or other encumbrance of any kind, whether voluntarily
incurred or arising by operation of Law or otherwise against any property.


 


“Margin Stock”
means “margin stock” as such term is defined in Regulation T, U, or X of the Board of Governors of the Federal Reserve System.


 


“Material Adverse
Change” means (a) a material impairment in the perfection or priority of the Agent’s Lien (or any Lender’s
Lien therein to the extent provided for in the Financing Documents) in the Collateral; (b) a material impairment in the value of
the Collateral; (c) a material adverse change in the business, operations, or condition (financial or otherwise) of any Credit Party;
or (d) a material impairment of the prospect of repayment of any portion of the Obligations.


 


“Material Agreement”
means (a) the agreements listed in the Disclosure Schedule, (b) each agreement or contract to which a Credit Party is
a party relating to licensure of Intellectual Property or development of Products or Intellectual Property, and (c) any agreement
or contract to which such Credit Party or its Subsidiaries is a party the termination of which could reasonably be expected to result
in a Material Adverse Change.


 


“Material Indebtedness”
has the meaning given it in Section 10.1.


 


“Maturity
Date” means November 30, 2025; provided that the Maturity Date will be automatically extended to April 1, 2026
if Agent receives evidence reasonably satisfactory to it, by November 15, 2025, that the entire principal amount of the Permitted
Convertible Indebtedness has been converted into equity interests of Borrower in accordance with the terms of this Agreement and the Subordination
Agreement and the Permitted Convertible Indebtedness is otherwise indefeasibly satisfied in full.


 


“Maximum Lawful Rate”
has the meaning given it in Section 2.6(g).


 


“MidCap”
has the meaning given it in the preamble of this Agreement.


 


“Note Purchase Agreement”
means that certain Note Purchase Agreement dated as of February 21, 2019, among Borrower and the parties thereto as “Purchasers”,
as at any time amended in accordance with the Subordination Agreement.


 


“Obligations”
means all of Borrower’s obligations to pay when due any debts, principal, interest, Protective Advances, fees, indemnities and other
amounts Borrower owes the Agent or Lenders now or later, under this Agreement or the other Financing Documents, including, without limitation,
interest accruing after Insolvency Proceedings begin (whether or not allowed) and debts, liabilities, or obligations of Borrower assigned
to the Lenders and/or Agent, and the payment and performance of each other Credit Party’s covenants and obligations under the Financing
Documents.


 


“Ocular Europe” means Ocular
Therapeutix Europe B.V.


 






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“OFAC”
means the U.S. Department of Treasury Office of Foreign Assets Control.


 


“OFAC Lists”
means, collectively, the Specially Designated Nationals and Blocked Persons List maintained by OFAC pursuant to Executive Order No. 13224,
66 Fed. Reg. 49079 (Sept. 25, 2001) and/or any other list of terrorists or other restricted Persons maintained pursuant to any of the
rules and regulations of OFAC or pursuant to any other applicable Executive Orders.


 


“Operating Documents”
means, for any Person, such Person’s formation documents, as certified with the Secretary of State of such Person’s state
of formation on a date that is no earlier than thirty (30) days prior to the Closing Date, and (a) if such Person is a corporation,
its bylaws in current form, (b) if such Person is a limited liability company, its limited liability company agreement (or similar
agreement), and (c) if such Person is a partnership, its partnership agreement (or similar agreement), each of the foregoing with
all current amendments or modifications thereto.


 


“Ordinary Course
of Business” means, in respect of any transaction involving any Credit Party, the ordinary course of business of such Credit
Party, as conducted by such Credit Party in accordance with past practices, which shall in any event be at arms-length.


 


“Payment Date”
means the first calendar day of each calendar month.


 


“Perfection Certificate”
means the Perfection Certificate delivered to Agent as of the Closing Date, together with any amendments thereto required under this Agreement.


 


“Permitted Contingent
Obligations” means (a) Contingent Obligations resulting from endorsements for collection or deposit in the Ordinary Course
of Business; (b) Contingent Obligations incurred in the Ordinary Course of Business with respect to surety and appeal bonds, performance
bonds and other similar obligations not to exceed One Hundred Thousand Dollars ($100,000) in the aggregate at any time outstanding; (c) Contingent
Obligations arising under indemnity agreements with title insurers; (d) Contingent Obligations arising with respect to customary
indemnification obligations in favor of purchasers in connection with dispositions of personal property assets permitted under Article 7;
(e) so long as there exists no Event of Default both immediately before and immediately after giving effect to any such transaction,
Contingent Obligations existing or arising under any swap contract, provided, however, that such obligations are (or were)
entered into by Borrower or an Affiliate in the Ordinary Course of Business for the purpose of directly mitigating risks associated with
liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person and not for purposes of speculation;
and (f) other Contingent Obligations not permitted by clauses (a) through (e) above, not to exceed $100,000 in the aggregate
at any time outstanding.


 


“Permitted Convertible
Indebtedness” means Indebtedness of the Borrower incurred pursuant to the Note Purchase Agreement in an aggregate principal
amount not to exceed $37,500,000 during the term of this Agreement, that is convertible into common stock of Borrower and has been subordinated
and made junior to the payment in full of the Obligations pursuant to the Subordination Agreement; provided that (a) at the time
such Permitted Convertible Indebtedness is incurred, no Default or Event of Default has occurred or would occur as a result of such incurrence,
(b) all necessary corporate, company, shareholder or similar actions shall be taken and consents obtained in connection with the
issuance of such Permitted Convertible Indebtedness, (c) the issuance of such Permitted Convertible Indebtedness shall be consummated
in compliance with all applicable Laws, (d) only one issuance of Permitted Convertible Indebtedness shall be permitted during the
term of this Agreement, and (e) the documentation evidencing such Permitted Convertible Indebtedness shall have been delivered to
the Agent and shall contain all of the following characteristics: (i) it shall be (shall remain) unsecured, (ii) it shall not
have a maturity (and shall not require any principal repayments or mandatory redemption thereof (other than in connection with a Change
in Control)) prior to the date that is 91 days after the Maturity Date, (iii) if it has any covenants, such covenants (including
covenants relating to incurrence of indebtedness) shall be less restrictive than those set forth herein, (iv) it shall have no restrictions
on the Borrower’s ability to grant liens securing indebtedness ranking senior to such Permitted Convertible Indebtedness, and (v) it
may be cross-accelerated and cross-defaulted with the Obligations and other senior indebtedness of the Borrower so long as the Subordination
Agreement is in full force and effect, and may be accelerated upon bankruptcy.


 






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“Permitted Convertible
Indebtedness Documents” means the Note Purchase Agreement and any other documents evidencing and/or securing Permitted Convertible
Indebtedness, including, without limitation, any and all notes issued in connection with the Note Purchase Agreement, all of which documents
shall be in form and substance acceptable to Agent in its sole discretion.


 


“Permitted Indebtedness”
means: (a) Borrower’s Indebtedness to the Lenders and Agent under this Agreement and the other Financing Documents; (b) Indebtedness
existing on the Closing Date and described on the Disclosure Schedule; (c) Indebtedness secured by Permitted Liens; (d) Permitted
Convertible Indebtedness; (e) unsecured Indebtedness to trade creditors incurred in the Ordinary Course of Business; (f) Permitted
Contingent Obligations; (g) extensions, refinancings, modifications, amendments and restatements of any items of Permitted Indebtedness
(b) and (c) above, provided, however, that the principal amount thereof is not increased or the terms thereof are not
modified to impose more burdensome terms upon the obligors thereunder; and (h) Indebtedness consisting of intercompany loans and
advances made by any Borrower to any other Borrower, provided that (1) the obligations of the Borrower under such intercompany loan
shall be subordinated at all times to the Obligations of the Borrower hereunder or under the other Financing Documents in a manner satisfactory
to Agent and (2) to the extent that such Indebtedness is evidenced by a promissory note or other written instrument, Borrower shall
pledge and deliver to Agent, for the benefit of itself and the Lenders, the original promissory note or instrument, as applicable, along
with an endorsement in blank in form and substance satisfactory to Agent.


 


“Permitted Investments”
means: (a) Investments existing on the Closing Date and described on the Disclosure Schedule; (b) Investments consisting
of cash equivalents; (c) any Investments in liquid assets permitted by Borrower’s investment policy, as amended from time to
time, provided that such investment policy (and any such amendment thereto) has been approved in writing by Agent (provided, that, under
no circumstances shall Borrower be permitted to invest in or hold Margin Stock); (d) Investments consisting of the endorsement of
negotiable instruments for deposit or collection or similar transactions in the ordinary course of any Credit Party; (e) Investments
consisting of deposit accounts or securities accounts in which the Agent has a first priority perfected security interest except as otherwise
provided by Section 6.6; (f) Investments in Subsidiaries solely to the extent permitted pursuant to Section 6.8;
(g) Investments consisting of (i) travel advances and employee relocation loans and other employee loans and advances in the
Ordinary Course of Business, and (ii) loans to employees, officers or directors relating to the purchase of equity securities of
Borrower or its Subsidiaries pursuant to employee stock purchase plans or agreements approved by Borrower’s board of directors;
(h) Investments (including debt obligations) received in connection with the bankruptcy or reorganization of customers or suppliers
and in settlement of delinquent obligations of, and other disputes with, customers or suppliers arising in the Ordinary Course of Business;
(i) Investments consisting of intercompany Indebtedness in accordance with and to the extent permitted by clause (h) of the
definition of “Permitted Indebtedness”; and (j) Investments of cash and cash equivalents by the Credit Parties in a Securities
Subsidiary so long as Borrower is in compliance with Section 6.15 before and after giving effect to such Investment and no Event
of Default has occurred and is continuing at the time such Investments are made or would result from the making thereof.


 






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“Permitted Liens”
means: (a) Liens existing on the Closing Date and shown on the Disclosure Schedule or arising under this Agreement and the
other Financing Documents; (b) purchase money Liens securing no more than One Million Five Hundred Thousand Dollars ($1,500,000)
in the aggregate amount outstanding (i) on Equipment acquired or held by a Credit Party incurred for financing the acquisition of
the Equipment, or (ii) existing on Equipment when acquired, if the Lien is confined to the property and improvements and the
proceeds of the Equipment; (c) Liens for taxes, fees, assessments or other government charges or levies, either not delinquent or
being contested in good faith and for which adequate reserves are maintained on the Books of the Credit Party against whose asset such
Lien exists, provided that no notice of any such Lien has been filed or recorded under the Internal Revenue Code of 1986, as amended,
and the treasury regulations adopted thereunder; (d) statutory Liens securing claims or demands of materialmen, mechanics, carriers,
warehousemen, landlords and other Persons imposed without action of such parties, provided that they have no priority over any
of Agent’s Lien and the aggregate amount of such Liens for all Credit Parties does not any time exceed One Hundred Thousand Dollars
($100,000); (e) leases or subleases of real property granted in the Ordinary Course of Business, and leases, subleases, non-exclusive
licenses or sublicenses of property (other than real property or Intellectual Property) granted in the Ordinary Course of Business, if
the leases, subleases, licenses and sublicenses do not prohibit granting Agent a security interest; (f) banker’s liens, rights
of set-off and Liens in favor of financial institutions incurred made in the Ordinary Course of Business arising in connection with a
Credit Party’s Collateral Accounts provided that such Collateral Accounts are subject to a Control Agreement to the extent required
hereunder; (g) Liens to secure payment of workers’ compensation, employment insurance, old-age pensions, social security and
other like obligations incurred in the Ordinary Course of Business (other than Liens imposed by ERISA); (h) Liens arising from judgments,
decrees or attachments in circumstances not constituting an Event of Default; (i) easements, reservations, rights-of-way, restrictions,
minor defects or irregularities in title and similar charges or encumbrances affecting real property not constituting a Material Adverse
Change; (j) Liens incurred in the extension, renewal or refinancing of the indebtedness secured by Liens described in (a) and
(b) above, but any extension, renewal or replacement Lien must be limited to the property encumbered by the existing Lien
and the principal amount of the Indebtedness may not increase; and (k) Liens in favor of Silicon Valley Bank on cash and/or securities
in connection with the provision by Silicon Valley Bank to Borrower of cash management services (including, without limitation, merchant
services, direct deposit of payroll, business credit cards and check cashing services) and letters of credit, in an aggregate amount not
to exceed (1) at any time while the Specified SVB Letter of Credit remains outstanding, the lesser of (a) the amount outstanding
for such cash management services and letters of credit and (b) the sum of (i) the then current stated amount of the Specified
SVB Letter of Credit plus (ii) Eight Hundred Thousand Dollars ($800,000.00), and (2) at any other time, the lesser of
(a) the amount outstanding for such cash management services and letters of credit and (b) Eight Hundred Thousand Dollars ($800,000.00).


 


“Permitted Payments”
means (a) cash payments made in lieu of fractional shares solely in connection with the conversion of any Permitted Convertible Indebtedness
into common stock of Borrower and (b) payments of reasonable attorneys’ fees and expenses incurred by the holders of the Permitted
Convertible Indebtedness that are required to be paid by Borrower under the terms of the Permitted Convertible Indebtedness Documents.


 


“Person”
means any individual, sole proprietorship, partnership, limited liability company, joint venture, company, trust, unincorporated organization,
association, corporation, institution, public benefit corporation, firm, joint stock company, estate, entity or government agency.


 


“Pro Rata Share”
means, as determined by Agent, with respect to each Credit Facility and Lender holding an Applicable Commitment or Credit Extensions in
respect of such Credit Facility, a percentage (expressed as a decimal, rounded to the ninth decimal place) determined by dividing
(a) in the case of fully-funded Credit Facilities, the amount of Credit Extensions held by such Lender in such Credit Facility by
the aggregate amount of all outstanding Credit Extensions for such Credit Facility, and (b) in the case of Credit Facilities that
are not fully-funded, the amount of Credit Extensions and unfunded Applicable Commitments held by such Lender in such Credit Facility
by the aggregate amount of all outstanding Credit Extensions and unfunded Applicable Commitments for such Credit Facility.


 






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“Protective Advances”
means all audit fees and expenses, costs, and expenses (including reasonable attorneys’ fees and expenses) of Agent and Lenders
for preparing, amending, negotiating, administering, defending and enforcing the Financing Documents (including, without limitation, those
incurred in connection with appeals or Insolvency Proceedings) or otherwise incurred by Agent or the Lenders in connection with the Financing
Documents.


 


“Reaffirmation
Agreement” means that certain Reaffirmation Agreement, dated as of the date hereof, executed by the Borrower in favor of Agent,
in form and substance satisfactory to Agent.


 


“Register”
has the meaning given it in Section 13.1(d).


 


“Registered Organization”
means any “registered organization” as defined in the Code, with such additions to such term as may hereafter be made.


 


“Required Lenders”
means, unless all of the Lenders and Agent agree otherwise in writing, Lenders having (a) more than sixty percent (60%) of the Applicable
Commitments of all Lenders, or (b) if such Applicable Commitments have expired or been terminated, more than sixty percent (60%)
of the aggregate outstanding principal amount of the Credit Extensions.


 


“Required Permit”
means all licenses, certificates, accreditations, product clearances or approvals, provider numbers or provider authorizations, supplier
numbers, provider numbers, marketing authorizations, other authorizations, registrations, permits, consents and approvals of a Credit
Party (a) issued or required under Laws applicable to the business of Borrower or any of its Subsidiaries or necessary in the manufacturing,
importing, exporting, possession, ownership, warehousing, marketing, promoting, sale, labeling, furnishing, distribution or delivery of
goods or services under Laws applicable to the business of Borrower or any of its Subsidiaries, or (b) issued by any Person from
which Borrower or any of its Subsidiaries have received an accreditation. Without limiting the generality of the foregoing, “Required
Permits” includes any Drug Application (including without limitation, at any point in time, all licenses, approvals and permits
issued by the FDA or any other applicable Governmental Authority necessary for the testing, manufacture, marketing or sale of any Product
by any applicable Borrower(s) as such activities are being conducted by such Borrower with respect to such Product at such time)
and any drug listings and drug establishment registrations under 21 U.S.C. Section 510, registrations issued by DEA under 21 U.S.C.
Section 823 (if applicable to any Product), and those issued by State governments for the conduct of Borrower’s or any Subsidiary’s
business.


 


“Reserve Percentage”
means, on any day, for any Lender, the maximum percentage prescribed by the Board of Governors of the Federal Reserve System (or any successor
Governmental Authority) for determining the reserve requirements (including any basic, supplemental, marginal, or emergency reserves)
that are in effect on such date with respect to eurocurrency funding (currently referred to as “eurocurrency liabilities”)
of that Lender, but so long as such Lender is not required or directed under applicable regulations to maintain such reserves, the Reserve
Percentage shall be zero.


 


“Responsible Officer”
means any of the President and Chief Executive Officer or Chief Financial Officer of Borrower.


 


“Secretary’s
Certificate” means, with respect to any Person, a certificate, in form and substance satisfactory to Agent, executed by such
Person’s secretary on behalf of such Person certifying that (a) such Person has the authority to execute, deliver, and perform
its obligations under each of the Financing Documents to which it is a party, (b) that attached as Exhibit A to such certificate
is a true, correct, and complete copy of the Borrowing Resolutions then in full force and effect authorizing and ratifying the execution,
delivery, and performance by such Person of the Financing Documents to which it is a party, (c) the name(s) of the Person(s) authorized
to execute the Financing Documents on behalf of such Person, together with a sample of the true signature(s) of such Person(s), and
(d) that Agent and the Lenders may conclusively rely on such certificate unless and until such Person shall have delivered to Agent
a further certificate canceling or amending such prior certificate.


 






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“Secured Promissory
Note” has the meaning given it in Section 2.7.


 


“Security Documents”
means, collectively, each IP Security Agreement, each Control Agreement, the Reaffirmation Agreement, and each other agreement, document
or instrument executed concurrently herewith or at any time hereafter pursuant to which one (1) or more Credit Parties or any other
Person provides, as security for all or any portion of the Obligations, a Lien on any of its assets in favor of Agent for its own benefit
and the benefit of the Lenders, as any or all of the same may be amended, supplemented, restated or otherwise modified from time to time.


 


“Securities Account”
means any “securities account”, as defined in the Code, with such additions to such term as may hereafter be made.


 


“Securities Subsidiary”
means any Subsidiary that is a “Security Corporation” as defined in 830 Code of Mass. Regulations 63.38B.1.


 


“Specified SVB Letter
of Credit” means letter of credit number SVBSF011096 issued by Silicon Valley Bank for the account of Borrower and for the benefit
of WS NV 15 Crosby Drive, LLC, Borrower’s landlord for its location at 15 Crosby Drive, Bedford, Massachusetts, in the initial stated
amount of $1,500,000 and any renewal thereof or replacement letter of credit issued by Silicon Valley Bank for the same purpose and for
the same or a lesser amount.


 


“Stated Rate”
has the meaning given it in Section 2.6(g).


 


“Subordination Agreement”
means that certain Subordination Agreement dated as of February 21, 2019, by and among Cap 1 LLC, as agent for the holders of the
Permitted Convertible Indebtedness, Borrower and Agent, as the same may be amended, supplemented, restated or otherwise modified from
time to time in accordance with the terms thereof.


 


“Subsidiary”
means, with respect to any Person, any Person of which more than fifty percent (50.0%) of the voting stock or other equity interests (in
the case of Persons other than corporations) is owned or controlled, directly or indirectly, by such Person.


 


“Taxes”
has the meaning given it in Section 2.6(h).


 


“Term Credit Facility”
means each Credit Facility identified on the Credit Facility Schedule as a term facility.


 


“Third Restatement
Closing Date” has the meaning given it in the preamble of this Agreement.


 


“Transfer”
has the meaning given it in Section 7.1.


 






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[SIGNATURES APPEAR ON FOLLOWING PAGE(S)]


 


 


 






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IN
WITNESS WHEREOF, intending that this instrument constitute an instrument executed and delivered under seal, the parties hereto
have caused this Agreement to be executed as of the Closing Date.


 


BORROWER:


 


OCULAR THERAPEUTIX, INC.


 


	By:  	/s/ Donald Notman	(SEAL)	 
	Name:  	Donald Notman	 	 
	Title:  	Chief Financial Officer, Treasurer and Secretary	 



 






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AGENT:


 


	MIDCAP FINANCIAL TRUST,	 
	as Agent for Lenders	 
	 	 
	By:  	Apollo Capital Management, L.P.,	 
	 	its investment manager	 
	 	 
	By:  	Apollo Capital Management GP, LLC,	 
	 	its general partner	 
	 	 
	By:  	/s/ Maurice Amsellem	(SEAL)	 
	Name:  	Maurice Amsellem	 	 
	Title:  	Authorized Signatory	 	 




 






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LENDERS:


 


	MIDCAP FINANCIAL TRUST,	 
	as a Lender	 
	 	 
	By:  	Apollo Capital Management, L.P.,	 
	 	its investment manager	 
	 	 
	By:  	Apollo Capital Management GP, LLC,	 
	 	its general partner	 
	 	 
	By:  	/s/ Maurice Amsellem	(SEAL)	 
	Name:   Maurice Amsellem	 
	Title:   Authorized Signatory	 
	 	 
	MidCap Financial Trust	 
	c/o MidCap Financial Services, LLC, as servicer	 
	7255 Woodmont Ave, Suite 300	 
	Bethesda, MD 20814	 
	Attn: Account Manager for Ocular Therapeutix transaction	 
	Facsimile: 301-941-1450	 
	Email: notices@midcapfinancial.com	 
	 	 
	With a copy to:	 
	 	 
	MidCap Financial Trust	 
	c/o MidCap Financial Services, LLC, as servicer	 
	7255 Woodmont Ave, Suite 300	 
	Bethesda, MD 20814	 
	Attn: Legal	 
	Facsimile: 301-941-1450	 
	Email: legalnotices@midcapfinancial.com	 




 






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	SILICON VALLEY BANK,	 
	as a Lender	 
	 	 
	By:  	/s/ Lauren Cole	(SEAL)	 
	Name:  	Lauren Cole	 	 
	Title:  	Director	 	 
	 	 
	Silicon Valley Bank	 
	275 Grove Street	 
	Newton, MA 02466	 
	Attn: Ryan Roller	 
	Facsimile: 617-969-5965	 
	Email: RRoller@svb.com	 




 






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	ELM 2020-3 TRUST,	 
	as a Lender	 
	 	 
	By:  	 	 
	 	 
	By:  	 /s/ John O Dea	(SEAL)	 
	Name:  	John O Dea / Director	 	 
	Title:  	Authorized Signatory	 	 



 


ELM 2020-3 Trust


c/o MidCap Financial Services Capital Management, LLC, as Servicer


7255 Woodmont Avenue, Suite 300


Bethesda, MD 20814


Attn: Portfolio Management


Phone: (301) 760-7600


Fax: (301) 941-1450


Email: notices@midcapfinancial.com  





 






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	ELM 2020-4 TRUST,	 
	as a Lender	 
	 	 
	By:  	 	 
	 	 
	By:  	/s/ John O Dea	(SEAL)	 
	Name:  	John O Dea / Director	 	 
	Title:  	Authorized Signatory	 	 



 


ELM 2020-4 Trust


c/o MidCap Financial Services Capital Management, LLC, as Servicer


7255 Woodmont Avenue, Suite 300


Bethesda, MD 20814


Attn: Portfolio Management


Phone: (301) 760-7600


Fax: (301) 941-1450


Email: notices@midcapfinancial.com  





 






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