Exhibit 10.1


 





AMENDMENT NO.2 TO FORBEARANCE AND AMENDMENT
AGREEMENT


 


This AMENDMENT NO. 2 TO FORBEARANCE AND
AMENDMENT AGREEMENT, dated as of April 27, 2017 (this “Amendment”), is made by and among ALLIQUA BIOMEDICAL,
INC., a Delaware Corporation (the “Borrower”), AQUAMED
TECHNOLOGIES, INC., a Delaware corporation (the “Guarantor”; the Borrower and the Guarantor are
each also referred to herein individually as an “Obligor” and collectively as the “Obligors”)
and PERCEPTIVE CREDIT HOLDINGS, L.P., a Delaware limited partnership (the “Lender”). Unless otherwise
defined herein or the context otherwise requires, terms used in this Amendment, including its preamble and recitals, have the meanings
provided in the Forbearance Agreement (defined below).


 


RECITALS


 


WHEREAS, the Borrower,
the Guarantor and the Lender are parties to a Forbearance and Amendment Agreement dated as of January 26, 2017 (as amended or otherwise
modified, the “Forbearance Agreement”); and


 


WHEREAS, the Borrower has requested that
the Lender agree to certain amendments and modifications to the Forbearance Agreement as further described herein; and


 


WHEREAS, the Lender is willing to agree
to such amendments and modifications subject to the terms and conditions set forth herein.


 


NOW, THEREFORE, in consideration of the
mutual agreements, provisions and covenants contained herein, the parties agree as follows:


 


 


ARTICLE I

AMENDMENTS to FORBEARANCE AGREEMENT


 


The provisions of the Forbearance Agreement
referred to below are hereby amended in accordance with this Article I.  Except as expressly so amended, the parties
hereto expressly acknowledge and agree that all other terms and provisions of the Forbearance Agreement and each other Loan Document
shall continue in full force and effect in accordance with its terms.


 


SECTION 1.1Amendment to Section 2.1(a).
Section 2.1(a) of the Forbearance Agreement is hereby amended and restated in its entirety as follows:


 


(a)The Borrower acknowledges and
agrees that it was in Default of Section 8.4(b) of the Credit Agreement as of each of September 30, 2016, December 31, 2016 and
March 31, 2017 (such Defaults being herein referred to as the “Specified Defaults”). The Lender hereby agrees that,
with respect to the Specified Defaults (but only the Specified Defaults), it will refrain and forebear from exercising or pursuing
any rights or remedies under the Credit Agreement or otherwise (including imposing a default rate of interest in respect of the
Specified Defaults pursuant to Section 3.6 of the Credit Agreement) or any other Loan Document until (but only until) the Termination
Date. Any term or provision hereof to the contrary notwithstanding, the Lender is not waiving any of its rights or remedies with
respect to the Specified Defaults or any other Default, but instead is simply agreeing not to take remedial action with respect
to the Specified Defaults until the Termination Date.


 






    	 



     


    

 


SECTION 1.2Amendment to Section 2.1(b).
Section 2.1(b) of the Forbearance Agreement is hereby amended and restated in its entirety as follows:


 


(b)       The
“Termination Date” shall mean the earlier of (i) June 30, 2017, and (ii) the date when the Lender becomes
aware that any other Default (other than any Specified Default) has occurred and is continuing. Upon the occurrence of the Termination
Date the Lender may, with respect to either or both of the Specified Defaults, pursue any rights and remedies available to it under
the Credit Agreement or any other Loan Document, or pursuant to law or otherwise, with respect to any Defaults that have then occurred
and are outstanding (including the Specified Defaults), including, but not limited to, declaring all or any portion of the outstanding
principal amount of the Loan and other Obligations to be immediately due and payable, imposing a default rate of interest in respect
of the Obligations in accordance with Section 3.6 of the Credit Agreement, or pursuing any or all other rights and remedies of
the Lender as a secured party under the UCC, the Pledge and Security Agreement or any other Loan Document.


 


ARTICLE II

MISCELLANEOUS


 


SECTION 2.1Governing Law. This
Amendment shall be governed by, and construed in accordance with, the internal laws of the State of New York.


 


SECTION 2.2No Waiver. The Lender’s
agreement not to pursue its rights and remedies until the occurrence of the Termination Date as described in Section 2.1 of the
Forbearance Agreement is temporary and limited in nature. Except as expressly provided herein, (i) nothing contained herein shall
be deemed to constitute a waiver of the Specified Defaults or any other Default or Event of Default or compliance with any term
or condition contained in the Credit Agreement or any of the other Loan Documents or constitute a course of conduct or dealing
among the parties and (ii) the Lender reserves all rights, privileges and remedies under the Credit Agreement and the other Loan
Documents.


 


SECTION 2.3Severability. In
case any provision of or obligation under this Amendment shall be invalid, illegal or unenforceable in any jurisdiction, the validity,
legality and enforceability of the remaining provisions or obligations, or of such provision or obligation in any other jurisdiction,
shall not in any way be affected or impaired thereby.


 


SECTION 2.4Integration. This
Amendment incorporates all negotiations of the parties hereto with respect to the subject matter hereof and is the final expression
and agreement of the parties hereto with respect to the subject matter hereof.


 


SECTION 2.5Loan Document Pursuant
to Credit Agreement. This Amendment is a Loan Document executed pursuant to the Credit Agreement and shall (unless otherwise
expressly indicated therein) be construed, administered and applied in accordance with all of the terms and provisions of the Credit
Agreement, as amended hereby, including Article XI thereof and all rules of interpretation set forth in Article I thereof.


 






    	 



     


    

 


SECTION 2.6Counterparts. This
Amendment may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument
and any of the parties hereto may execute this Amendment by signing any such counterpart.


 


SECTION 2.7Effectiveness.
This Amendment shall become effective upon the Lender’s execution and delivery of this Amendment and the receipt by the Lender
of counterparts of this Amendment duly executed and delivered by all other parties hereto.


 


SECTION 2.8Full Force and Effect;
Limited Amendment. Except as expressly amended hereby, the Obligors each jointly and severally agree that all of the representations,
warranties, terms, covenants, conditions and other provisions of the Credit Agreement and the other Loan Documents shall remain
unmodified and shall continue to be, and shall remain, in full force and effect in all respects.  The amendments and other
waivers and modifications set forth in this Amendment shall be limited precisely as provided for herein to the provisions expressly
amended herein or otherwise modified or waived hereby and shall not be deemed to be an amendment to, waiver of, consent to or modification
of any other term or provision of the Credit Agreement or any other Loan Document or of any transaction or further or future action
on the part of any Loan Party which would require the consent of the Lender under the Credit Agreement or any of the Loan Documents.


 


 


[Signature pages to follow]


 




    	 



     


    

 


IN WITNESS WHEREOF, the parties hereto have
caused this Amendment to be duly executed and delivered as of the day and year first above written.


 





	 	BORROWER:	 
	 	 	 	 
	 	ALLIQUA BIOMEDICAL, INC.	 
	 	By	/s/ Brian M. Posner	 
	 	Name:	Brian M. Posner	 
	 	Title:	CFO	 
	 	 	 	 
	 	 	 	 
	 	GUARANTOR:	 
	 	 	 
	 	AQUAMED TECHNOLOGIES, INC.	 
	 	By	/s/ Brian M. Posner	 
	 	Name: 	Brian M. Posner	 
	 	Title: 	CFO	 







 





 


[Signature Page to Amendment No. 2 to Forbearance Agreement]




    	 



     


    

 





	LENDER:	 
	 	 	 
	PERCEPTIVE CREDIT HOLDINGS, LP	 
	 	 
	By Perceptive Credit Opportunities GP, LLC, 	 
	its general partner	 
	 	 
	By	/s/ Sandeep Dixit	 
	 	Sandeep Dixit	 
	 	Chief Credit Officer	 
	 	 	 
	By	Sam Chawla 	 
	Name:	Sam Chawla	 
	Title:	Portfolio Manager	 







 


 


[Signature Page to Amendment No. 2 to Forbearance Agreement]