ex101executedmadrynfo344






                                                       EXECUTION VERSION                       FOURTH AMENDMENT TO CREDIT AGREEMENT          THIS  FOURTH  AMENDMENT  TO  CREDIT  AGREEMENT  (this  “Agreement”)  dated  as  of  August  5,  2020  (the  “Fourth  Amendment  Effective  Date”)  is  entered  into  among  ESTABLISHMENT  LABS HOLDINGS INC., a BVI business company, limited by shares and incorporated under the laws of  the  British  Virgin  Islands (the  “Borrower”), the  Guarantors  party  hereto, the  Lenders  party  hereto  and  MADRYN  HEALTH  PARTNERS,  LP,  a  Delaware  limited  partnership,  as  Administrative  Agent.   All  capitalized terms used herein and not otherwise defined herein shall have the meanings given to such terms  in the Existing Credit Agreement (as defined below) or the Amended Credit Agreement (as defined below).                                                                             RECITALS          WHEREAS,  the  Borrower,  the  Guarantors  party  thereto,  the  Lenders  party  thereto  and  the  Administrative Agent have entered into that certain Credit Agreement dated as of August 24, 2017 (as  amended by that certain First Amendment to Credit Agreement dated as of October 31, 2017, that certain  Second  Amendment  to  Credit  Agreement  and  Waiver  dated  as  of  June  15,  2018,  that  certain  Third  Amendment to Credit Agreement and Waiver dated as of June 17, 2019 and as further amended, restated,  supplemented or modified from time to time prior to the date hereof, the “Existing Credit Agreement”);           WHEREAS, the Borrower has requested that the Existing Credit Agreement be amended to provide  for  certain  modifications  of  the  terms  of  the  Existing  Credit  Agreement,  and  that,  as so  amended,  the  Existing Credit Agreement for ease of reference be restated (after giving effect to this Agreement) in the  form of Schedule 1 hereto; and                WHEREAS, the Lenders are willing to amend the Existing Credit Agreement subject to the terms  and conditions hereof;                NOW, THEREFORE, in consideration of the premises and the mutual covenants contained herein,  and  for  other  good  and  valuable  consideration,  the  receipt  and  sufficiency  of  which  are  hereby  acknowledged, the parties hereto agree as follows:          1.    Amendments.  Effective as of the Fourth Amendment Effective Date:                       (a)   The Existing Credit Agreement is hereby amended by this Agreement and for ease        of reference restated (after giving effect to this Agreement) in the form of Schedule 1 hereto (the        Existing Credit Agreement, as so amended by this Agreement, being referred to as the “Amended        Credit Agreement”).                              (b)   Exhibit E to the Existing Credit Agreement is hereby amended and restated to read,        in its entirety, as set forth on Schedule 2 hereto.          Except as expressly set forth above, all Exhibits and Schedules to the Existing Credit Agreement  will  continue  in  their  present  forms  as  Exhibits  or  Schedules,  as  applicable,  to  the  Amended  Credit  Agreement.                2.    Conditions Precedent.  This Agreement shall be effective upon satisfaction of the following  conditions precedent:                            (a)   Executed Agreement. Receipt by the Administrative Agent of counterparts of this        Agreement duly executed by the Loan Parties (including the Additional Loan Parties (as defined        below)), the Lenders and the Administrative Agent;                                         1                                            





 






                                                                                             (b)   Joinder Documentation. Receipt by the Administrative Agent of counterparts of        all documentation required under Section 7.12 of the Amended Credit Agreement, in each case in        form and substance satisfactory to the Administrative Agent, for (i) Motiva Implants UK Limited,        (ii) Motiva Implants France SAS, (iii) Motiva Germany GmbH and (iv) Motiva Implants Spain,        S.L. (collectively, the “Additional Loan Parties”);               (c)   Additional Collateral Documentation. Receipt by the Administrative Agent of all        documentation required under Section 7.14 of the Amended Credit Agreement with respect to the        Additional  Loan  Parties  (other  than  Motiva  Implants  Spain,  S.L.),  in  each  case  in  form  and        substance satisfactory to the Administrative Agent;                (d)   Organization Documents, Resolutions, Etc. Receipt by the Administrative Agent        of documents of the types described in Sections 5.02(f) and (g) of the Amended Credit Agreement        as applicable to each Additional Loan Party, each of which shall be originals or facsimiles (followed        promptly by originals) in form and substance reasonably satisfactory to the Administrative Agent        and including but not limited to:                      (i)   where required pursuant to the Organization Documents or the applicable              Law of the jurisdiction of incorporation of the relevant Additional Loan Party, a copy of a              resolution signed by all the holders of the issued shares of each Additional Loan Party,              approving  the  terms  of,  and  the  transactions  contemplated  in  connection  with  this              Agreement and the other Loan Documents to which such Additional Loan Party is a party              on and from the date of this Agreement;                     (ii)  in relation to a German Loan Party, (A) an up-to-date electronic excerpt              from the commercial register (elektronischer Abruf aus dem Handelsregister), (B) a copy              of the articles of association (Satzung) or partnership agreement (Gesellschaftsvertrag) and              (C) (if applicable) an up-to-date shareholder's list;                      (iii) in relation to each French Loan Party, a copy of the statuts and an original              extrait K-bis, certificat de non-faillite and état des inscriptions, dated not more than fifteen              (15) days prior to the date of this Agreement;                      (iv)  in  relation  to  each  Spanish  Guarantor,  (A)  a  certificate  from  the              Commercial Registry (certificación literal parcial del Registro Mercantil) regarding due              incorporation  and  existence  (existencia  y  vigencia),  solvency  and  no  winding  up  or              dissolution (solvencia y ausencia de disolución o liquidación), management body (órgano              de  administración),  no  insolvency  (no  insolvencia)  and  including  up  to  date  and              consolidated by-laws (estatutos actualizados y consolidados) of the Spanish Loan Party,              and  (B)  copies  of  any  documents  which  are  pending  registration  with  the  relevant              Commercial Registry (if any); and                     (v)   [reserved]               (e)   Attorney Costs. The Borrower shall have paid all reasonable and documented fees,        charges  and  disbursements  of  counsel  to  the  Administrative  Agent  incurred  to  the  Fourth        Amendment Effective Date.         3.    Conditions Subsequent.                                                  2                                           CHAR1\1707888v7 





 






                                                                                             (a)   Motiva Implants Spain, S.L.  As soon as reasonably practicable from the date of        this Agreement, and in any event within 30 Business Days (or such later date as the Administrative        Agent may agree in its sole discretion), Motiva Implants Spain, S.L. and the Borrower shall:                      (i)   enter into all documentation required under Section 7.14 of the Amended              Credit Agreement with respect to Motiva Implants Spain, S.L. before a Spanish notary, in              each case in form and substance satisfactory to the Administrative Agent; and                      (ii)  raise the status of this Agreement and the Joinder Agreement entered into              on or about the date of this Agreement by Motiva Implants Spain, S.L. to the status of              Spanish Public Document in the form of “escritura pública”.               It is understood and agreed that the requirements in Section 7.14 of the Amended Credit        Agreement with respect to Motiva Implants Spain, S.L. shall be subject to this Section 3(a).                (b)   Motiva  Italy  S.r.l.   As  soon  as  reasonably  practicable  from  the  date  of  this        Agreement, and in any event within 10 Business Days (or such later date as the Administrative        Agent may agree in its sole discretion), the Borrower shall ensure that Motiva Italy S.r.l. becomes        a Guarantor by executing and delivering to the Administrative Agent a Joinder Agreement and such        other documents as the Administrative Agent shall reasonably request for such purpose, including,        without limitation:                     (i)   a good standing certificate (certificato di vigenza), indicating that as at a              date  not  earlier  than  five  (5)  Business  Days  before  the  execution  date  of  the  Joinder              Agreement and Collateral Documents delivered pursuant to clause (ii) below executed by              Motiva Italy S.r.l., it is not subject to any procedura concorsuale; and                     (ii)  all  documentation  required  under  Section  7.14  of  the  Amended  Credit              Agreement  with  respect  to  Motiva  Italy  S.r.l.,  in  each  case  in  form  and  substance              satisfactory to the Administrative Agent.         4.    Reaffirmation.  Each of the Loan Parties acknowledges and reaffirms (a) that it is bound  by all of the terms of the Investment Documents to which it is a party and (b) that it is responsible for the  observance  and  full performance  of  all Obligations,  including  without limitation,  the repayment of the  Loans.  Furthermore, the Loan Parties acknowledge and confirm (i) that the Administrative Agent and the  Lenders have performed fully all of their obligations under the Existing Credit Agreement and the other  Investment Documents and (ii) that by entering into this Agreement, the Administrative Agent and the  Lenders do not, except as expressly set forth herein, waive or release any term or condition of the Amended  Credit Agreement or any of the other Investment Documents or any of their rights or remedies under such  Investment Documents or any applicable Law or any of the obligations of the Loan Parties thereunder.          The Loan Parties confirm for the benefit of the Administrative Agent and the Lenders that it is not the  intention of the parties hereto that the amendments to the Existing Credit Agreement set forth herein result  in a Belgian law novation (novatie) (within the meaning of Articles 1271 et seq. of the Belgian Civil Code)  (a “Novation”) of the Existing Credit Agreement, it being specified that in the event this Agreement would  be  deemed  to  constitute  a  Novation,  the  Administrative  Agent  and  the  Lenders  expressly  preserve  the  benefit of the Liens created under any Loan Documents in accordance with Article 1278 of the Belgian  Civil Code and each Loan Party acknowledges and agrees to such preservation.                5.    Miscellaneous.                                         3                                           CHAR1\1707888v7 





 






                                                                                               (a)   The Existing Credit Agreement and the obligations of the Loan Parties thereunder        and under the other Investment Documents, except as expressly modified by this Agreement, are        hereby ratified and confirmed and shall remain in full force and effect according to their terms.         This Agreement is a Loan Document.                (b)   Each Guarantor (i) acknowledges and consents to all of the terms and conditions        of this Agreement, (ii) affirms all of its obligations under the Loan Documents and (iii) agrees that        this Agreement and all documents executed in connection herewith do not operate to reduce or        discharge its obligations under the Existing Credit Agreement or the Loan Documents.                (c)   The Loan Parties hereby represent and warrant as follows:                      (i)   each Loan Party has taken all necessary corporate or other organizational              action to authorize the execution, delivery and performance of this Agreement.                      (ii)  this Agreement has been duly executed and delivered by each Loan Party              party hereto and constitutes a legal, valid and binding obligation of each such Loan Party,              enforceable  against  each  such  Loan  Party  in  accordance  with  its  terms,  subject  to              bankruptcy,  insolvency,  reorganization,  moratorium  and  similar  laws  affecting              enforceability of creditors’ rights generally and to general principles of equity (regardless              of whether such enforceability is considered in a proceeding in equity or at law).                      (iii)  no  approval,  consent,  exemption,  authorization  or  other  action  by,  or              notice to, or filing with, any Governmental Authority or any other Person is necessary or              required in connection with the execution, delivery or performance by, or enforcement              against, any Loan Party of this Agreement.                                  (iv)  (A)  the  representations  and  warranties  of  the  Borrower  and  each  other              Loan  Party  contained  in  Article  VI  of  the  Amended  Credit  Agreement  or  any  other              Investment Document, or which are contained in any document furnished at any time under              or in connection therewith, are true and correct in all material respects (and in all respects              if any such representation and warranty is already qualified by materiality or reference to              Material  Adverse  Effect)  on  and  as  of  the  date  hereof,  except  to  the  extent  that  such              representations and warranties specifically refer to an earlier date, in which case they are              true and correct in all material respects (and in all respects if any such representation and              warranty is already qualified by materiality or reference to Material Adverse Effect) as of              such  earlier  date  and  (B)  no  event  has  occurred  and  is  continuing  which  constitutes  a              Default or an Event of Default.                (d)   Each of the Loan Parties hereby affirms the Liens created and granted in the Loan        Documents in favor of the Administrative Agent, for the benefit of the Secured Parties, and agrees        that this Agreement does not adversely affect or impair such liens and security interests in any        manner.                            (e)   This Agreement may be executed in counterparts (and by different parties hereto        in different counterparts), each of which shall constitute an original, but all of which when taken        together shall constitute a single contract.  Delivery of an executed counterpart of a signature page        of this Agreement by facsimile or other electronic imaging means (e.g. “pdf” or “tif”) shall be        effective as delivery of a manually executed counterpart of this Agreement.                                          4                                           CHAR1\1707888v7 





 






                                                                                             (f)   If any provision of this Agreement is held to be illegal, invalid or unenforceable,        (i) the legality, validity and enforceability of the remaining provisions of this Agreement shall not        be affected or impaired thereby and (ii) the parties shall endeavor in good faith negotiations to        replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect        of which comes as close as possible to that of the illegal, invalid or unenforceable provisions.  The        invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such        provision in any other jurisdiction.                      (g)   THIS AGREEMENT AND ANY CLAIMS, CONTROVERSY, DISPUTE OR        CAUSE OF ACTION (WHETHER IN CONTRACT OR TORT OR OTHERWISE) BASED        UPON,  ARISING  OUT  OF  OR  RELATING  TO  THIS  AGREEMENT  AND  THE        TRANSACTIONS  CONTEMPLATED  HEREBY,  SHALL  BE  GOVERNED  BY,  AND        CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.                              [SIGNATURE PAGES FOLLOW]                                         5                                           CHAR1\1707888v7 





 






         IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as  of the date first above written.     BORROWER:                    ESTABLISHMENT LABS HOLDINGS INC.,                                a BVI business company incorporated under the laws of the                                British Virgin Islands                                 By: /s/ Juan José Chacón Quiros                                Name:  Juan José Chacón Quiros                                Title:    Director   GUARANTORS:                  ESTABLISHMENT LABS SOCIEDAD ANONIMA,                                a Costa Rica corporation                                 By: /s/ Juan José Chacón Quiros                                Name:  Juan José Chacón Quiros                                Title:     Secretary                                 EUROPEAN DISTRIBUTION CENTER MOTIVA BVBA,                                a Belgium besloten vennootschap met beperkte                                aansprakelijkheid                                 By: /s/ Juan José Chacón Quiros                                Name:  Juan José Chacón Quiros                                Title:    Manager                                 ESTABLISHMENT LABS BRASIL PRODUTOS PARA                                SAUDE LTDA.,                                a Brazil limited liability company                                 By: /s/ Eddie de Oliveira                                Name:  Eddie de Oliveira                                Title:    Manager                                 JAMM TECHNOLOGIES, INC.,                                a Delaware corporation                                 By: /s/ Juan José Chacón Quiros                                Name:  Juan José Chacón Quiros                                Title:    President                                                         ESTABLISHMENT LABS HOLDINGS INC.                                                 FOURTH AMENDMENT TO CREDIT AGREEMENT      





 






                MOTIVA USA LLC,  a Delaware limited liability company                  By:   ESTABLISHMENT LABS HOLDINGS INC.       its Sole Member          By: /s/ Juan José Chacón Quiros        Name:  Juan José Chacón Quiros        Title:    Director   MOTIVA IMPLANTS UK LIMITED,  a UK Private Limited Company   By: /s/ Juan José Chacón Quiros  Name:  Juan José Chacón Quiros  Title:    Director   MOTIVA IMPLANTS FRANCE SAS,  a French Société par Actions Simplifiée   By: /s/ Juan José Chacón Quiros  Name:  Juan José Chacón Quiros  Title:    President   MOTIVA GERMANY GMBH,  a German Gesellschaft mit beschränkter Haftung   By: /s/ Juan José Chacón Quiros  Name:  Juan José Chacón Quiros  Title:    Director   MOTIVA IMPLANTS SPAIN, S.L.,  a Spanish Sociedad Limitada   By: /s/ Paloma Moreno de la Santa  Name:  Paloma Moreno de la Santa  Title: Attorney in fact                                            ESTABLISHMENT LABS HOLDINGS INC.                   FOURTH AMENDMENT TO CREDIT AGREEMENT                                





 






   ADMINISTRATIVE  AGENT:                       MADRYN HEALTH PARTNERS, LP                                   By:   MADRYN HEALTH ADVISORS, LP,                                     its General Partner                                      By:        MADRYN HEALTH ADVISORS GP, LLC,                                                  its General Partner                                             By: /s/ Avinash N. Amin                                            Name:  Avinash N. Amin                                            Title:    Member                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    ESTABLISHMENT LABS HOLDINGS INC.                                                 FOURTH AMENDMENT TO CREDIT AGREEMENT      





 






   LENDERS:                     MADRYN HEALTH PARTNERS, LP                                   By:   MADRYN HEALTH ADVISORS, LP,                                     its General Partner                                      By:        MADRYN HEALTH ADVISORS GP, LLC,                                                  its General Partner                                             By: /s/ Avinash N. Amin                                            Name:  Avinash N. Amin                                            Title:    Member                                     MADRYN HEALTH PARTNERS (CAYMAN MASTER), LP                                   By:   MADRYN HEALTH ADVISORS, LP,                                     its General Partner                                      By:        MADRYN HEALTH ADVISORS GP, LLC,                                                  its General Partner                                             By: /s/ Avinash N. Amin                                            Name:  Avinash N. Amin                                            Title:    Member                                                                                                       ESTABLISHMENT LABS HOLDINGS INC.                                                 FOURTH AMENDMENT TO CREDIT AGREEMENT      





 






                                    SCHEDULE 1                                                                   AMENDED CREDIT AGREEMENT                                                                            See Attached.                                             CHAR1\1707888v7 





 






                                                                                                                                                  SCHEDULE 1                                 CREDIT AGREEMENT                               Dated as of August 24, 2017                                       among                        ESTABLISHMENT LABS HOLDINGS INC.,                                  as the Borrower,                      CERTAIN SUBSIDIARIES OF THE BORROWER,                                  as the Guarantors,                           MADRYN HEALTH PARTNERS, LP,                              as the Administrative Agent                                        and                   THE LENDERS FROM TIME TO TIME PARTY HERETO    CHAR1\1707916v5 





 






                                                                                                              TABLE OF CONTENTS                                                                             Page   ARTICLE I. DEFINITIONS AND ACCOUNTING TERMS ..................................................................... 1        1.01  Defined Terms. ................................................................................................................... 1        1.02  Other Interpretive Provisions. ........................................................................................... 40        1.03  Accounting Terms. ............................................................................................................ 41        1.04  Times of Day. ................................................................................................................... 42        1.05  Belgian Terms. .................................................................................................................. 42        1.06  French Terms. ................................................................................................................... 43        1.07  German Terms. ................................................................................................................. 43        1.08  Spanish Terms. .................................................................................................................. 44  ARTICLE II. THE COMMITMENTS ....................................................................................................... 46        2.01  Commitments. ................................................................................................................... 46        2.02  Borrowings........................................................................................................................ 47        2.03  Prepayments. ..................................................................................................................... 48        2.04  Termination or Reduction of Commitments. .................................................................... 50        2.05  Repayment of Loans. ........................................................................................................ 51        2.06  Interest. ............................................................................................................................. 51        2.07  Fees. .................................................................................................................................. 51        2.08  Computation of Interest. ................................................................................................... 51        2.09  Evidence of Debt. ............................................................................................................. 51        2.10  Payments Generally. ......................................................................................................... 52        2.11  Sharing of Payments by Lenders. ..................................................................................... 52        2.12  Defaulting Lenders. .......................................................................................................... 53        2.13  Right of First Offer. .......................................................................................................... 54        2.14  Term C Facility. ................................................................................................................ 54  ARTICLE III. TAXES ................................................................................................................................ 55        3.01  Taxes. ................................................................................................................................ 55        3.02  Increased Costs. ................................................................................................................ 57        3.03  Mitigation Obligations; Replacement of Lenders. ............................................................ 59        3.04  Illegality. ........................................................................................................................... 59        3.05  Three-Month LIBOR Unavailability Period. .................................................................... 59        3.06  Survival. ............................................................................................................................ 60  ARTICLE IV. GUARANTY ...................................................................................................................... 60        4.01  The Guaranty. ................................................................................................................... 60        4.02  Obligations Unconditional. ............................................................................................... 61        4.03  Reinstatement. ................................................................................................................... 61        4.04  Certain Additional Waivers. ............................................................................................. 62        4.05  Remedies. .......................................................................................................................... 62        4.06  Rights of Contribution. ..................................................................................................... 62        4.07  Guarantee of Payment; Continuing Guarantee. ................................................................ 62        4.08  Limitations Applicable to Belgian Loan Parties. .............................................................. 62        4.09  Limitations Applicable to French Guarantors. .................................................................. 63        4.10  Limitations Applicable to Spanish Guarantors. ................................................................ 64        4.11  Limitations Applicable to Italian Guarantors.................................................................... 64    CHAR1\1707916v5 





 






   ARTICLE V. CONDITIONS PRECEDENT TO BORROWINGS ........................................................... 68        5.01  Condition to Effectiveness. ............................................................................................... 68        5.02  Conditions to Initial Extensions of Credit. ....................................................................... 68        5.03  Conditions to all Borrowings. ........................................................................................... 72        5.04  Additional Conditions to Term C Borrowing. .................................................................. 73  ARTICLE VI. REPRESENTATIONS AND WARRANTIES ................................................................... 73        6.01  Existence, Qualification and Power. ................................................................................. 74        6.02  Authorization; No Contravention. .................................................................................... 74        6.03  Governmental Authorization; Other Consents. ................................................................. 74        6.04  Binding Effect. .................................................................................................................. 74        6.05  Financial Statements; No Material Adverse Effect........................................................... 74        6.06  Litigation. .......................................................................................................................... 75        6.07  No Default......................................................................................................................... 75        6.08  Ownership of Property; Liens. .......................................................................................... 75        6.09  Environmental Compliance. ............................................................................................. 76        6.10  Insurance. .......................................................................................................................... 77        6.11  Taxes. ................................................................................................................................ 77        6.12  ERISA Compliance. .......................................................................................................... 77        6.13  Subsidiaries and Capitalization. ........................................................................................ 78        6.14  Margin Regulations; Investment Company Act................................................................ 79        6.15  Disclosure. ........................................................................................................................ 79        6.16  Compliance with Laws. .................................................................................................... 79        6.17  Intellectual Property; Licenses, Etc. ................................................................................. 80        6.18  Solvency............................................................................................................................ 83        6.19  Perfection of Security Interests in the Collateral. ............................................................. 83        6.20  Business Locations. .......................................................................................................... 83        6.21  Sanctions Concerns; Anti-Corruption Laws; PATRIOT Act; Anti-Money              Laundering Laws. ............................................................................................................. 84        6.22  Material Contracts. ............................................................................................................ 84        6.23  Regulatory Approvals. ...................................................................................................... 85        6.24  Labor Matters. ................................................................................................................... 86        6.25  EEA Financial Institutions. ............................................................................................... 87        6.26  Representations as to Foreign Loan Parties. ..................................................................... 87        6.27  Royalty and Other Payments. ........................................................................................... 88        6.28  Non-Competes. ................................................................................................................. 88        6.29  Internal Controls. .............................................................................................................. 88  ARTICLE VII. AFFIRMATIVE COVENANTS ....................................................................................... 88        7.01  Financial Statements. ........................................................................................................ 88        7.02  Certificates; Other Information. ........................................................................................ 89        7.03  Notices. ............................................................................................................................. 92        7.04  Payment of Obligations. ................................................................................................... 93        7.05  Preservation of Existence, Etc. ......................................................................................... 93        7.06  Maintenance of Properties. ............................................................................................... 93        7.07  Maintenance of Insurance. ................................................................................................ 94        7.08  Compliance with Laws. .................................................................................................... 94        7.09  Books and Records. .......................................................................................................... 94        7.10  Inspection Rights. ............................................................................................................. 94        7.11  Use of Proceeds. ............................................................................................................... 95                                         iii  CHAR1\1707916v5 





 






         7.12  Additional Subsidiaries. .................................................................................................... 95        7.13  ERISA Compliance. .......................................................................................................... 96        7.14  Pledged Assets. ................................................................................................................. 96        7.15  Compliance with Material Contracts. ............................................................................... 97        7.16  Maintenance of Regulatory Approvals, Contracts, IP Rights, Etc. ................................... 97        7.17  Anti-Corruption Laws. ...................................................................................................... 98        7.18  Cash Management. ............................................................................................................ 98        7.19  Post-Closing Obligations. ................................................................................................. 98        7.20  Compliance with Securities Laws. .................................................................................... 99  ARTICLE VIII. NEGATIVE COVENANTS ............................................................................................ 99        8.01  Liens. ................................................................................................................................ 99        8.02  Investments. .................................................................................................................... 101        8.03  Indebtedness.................................................................................................................... 102        8.04  Fundamental Changes. .................................................................................................... 104        8.05  Dispositions. ................................................................................................................... 105        8.06  Restricted Payments. ....................................................................................................... 105        8.07  Change in Nature of Business. ........................................................................................ 106        8.08  Transactions with Affiliates and Insiders........................................................................ 106        8.09  Burdensome Agreements. ............................................................................................... 106        8.10  Use of Proceeds. ............................................................................................................. 107        8.11  Payment of Other Indebtedness. ..................................................................................... 107        8.12  Organization Documents; Fiscal Year; Legal Name, State of Formation and              Form of Entity; Certain Amendments. ............................................................................ 107        8.13  Ownership of Subsidiaries. ............................................................................................. 108        8.14  Sale Leasebacks. ............................................................................................................. 108        8.15  Sanctions; Anti-Corruption Laws. .................................................................................. 108        8.16  Minimum Product Revenues........................................................................................... 108        8.17  Liquidity.......................................................................................................................... 109        8.18  Modifications and Terminations of Material Contracts. ................................................. 110        8.19  Inbound and Outbound Licenses. ................................................................................... 110  ARTICLE IX. EVENTS OF DEFAULT AND REMEDIES ................................................................... 110        9.01  Events of Default. ........................................................................................................... 110        9.02  Remedies Upon Event of Default. .................................................................................. 114        9.03  Application of Funds. ..................................................................................................... 115  ARTICLE X. ADMINISTRATIVE AGENT ........................................................................................... 115        10.01 Appointment and Authority. ........................................................................................... 115        10.02 Rights as a Lender. .......................................................................................................... 119        10.03 Exculpatory Provisions. .................................................................................................. 119        10.04 Reliance by Administrative Agent. ................................................................................. 120        10.05 Delegation of Duties. ...................................................................................................... 120        10.06 Resignation of Administrative Agent. ............................................................................ 121        10.07 Non-Reliance on Administrative Agent and Other Lenders. .......................................... 121        10.08 Administrative Agent May File Proofs of Claim. ........................................................... 121        10.09 Collateral and Guaranty Matters. .................................................................................... 122  ARTICLE XI. MISCELLANEOUS ......................................................................................................... 123        11.01 Amendments, Etc. ........................................................................................................... 123        11.02 Notices and Other Communications; Facsimile Copies. ................................................ 124                                         iv  CHAR1\1707916v5 





 






         11.03 No Waiver; Cumulative Remedies; Enforcement. .......................................................... 125        11.04 Expenses; Indemnity; and Damage Waiver. ................................................................... 126        11.05 Payments Set Aside. ....................................................................................................... 128        11.06 Successors and Assigns. ................................................................................................. 128        11.07 Treatment of Certain Information; Confidentiality. ........................................................ 132        11.08 Set-off. ............................................................................................................................ 133        11.09 Interest Rate Limitation. ................................................................................................. 133        11.10 Counterparts; Integration; Effectiveness. ........................................................................ 134        11.11 Survival of Representations and Warranties. .................................................................. 134        11.12 Severability. .................................................................................................................... 134        11.13 Replacement of Lenders. ................................................................................................ 134        11.14 Governing Law; Jurisdiction; Etc. .................................................................................. 135        11.15 Waiver of Right to Trial by Jury. .................................................................................... 137        11.16 Electronic Execution of Assignments and Certain Other Documents. ........................... 138        11.17 USA PATRIOT Act. ....................................................................................................... 138        11.18 No Advisory or Fiduciary Relationship. ......................................................................... 138        11.19 Acknowledgement and Consent to Bail-In of EEA Financial Institutions. .................... 139        11.20 Funding Date................................................................................................................... 139        11.21 Parallel Debt. .................................................................................................................. 139        11.22 Enforcement Through Administrative Agent Only. ....................................................... 140                                          v  CHAR1\1707916v5 





 






                 SCHEDULES   2.01  Commitments and Applicable Percentages  7.19  Post-Closing Obligations  11.02  Certain Addresses for Notices   EXHIBITS   A     Form of Loan Notice  B-1   Form of Term A Note  B-2   Form of Term B-1 Note  B-3   Form of Term B-2 Note  B-4   Form of Term B-3 Note  B-5   Form of Term B-4 Note  B-6   Form of Term C Note  C     Form of Joinder Agreement  D     Form of Assignment and Assumption  E     Form of Compliance Certificate                                               vi  CHAR1\1707916v5 





 






                                                                                                              CREDIT AGREEMENT         This CREDIT AGREEMENT is entered into as of August 24, 2017 among ESTABLISHMENT  LABS HOLDINGS INC., a BVI business company, limited by shares and incorporated under the laws of  the British Virgin Islands (the “Borrower”), the Guarantors (defined herein), the Lenders (defined herein)  and MADRYN HEALTH PARTNERS, LP, a Delaware limited partnership, as the Administrative Agent.         The Borrower has requested that the Lenders make term loan facilities available to the Borrower  and certain equity investments in the Borrower, and the Lenders are willing to do so on the terms and  conditions set forth herein.         In  consideration  of  the  mutual  covenants  and  agreements  herein  contained,  the  parties  hereto  covenant and agree as follows:                                     ARTICLE I.                                                                DEFINITIONS AND ACCOUNTING TERMS         1.01  Defined Terms.         As used in this Agreement, the following terms shall have the meanings set forth below:         “510(k)” means (a)  any premarket  notification and  corresponding  FDA  clearance  for  a  Device  pursuant  to  FDA  regulations  and  all  substantially  equivalent  or  similar  notifications,  applications  and  clearances  with  respect  to  any  other  non-U.S.  Regulatory  Authority,  including  the  EMA,  and  (b)  all  amendments,  supplements  and  other  additions  and  modifications  thereto,  and  all  documents,  data  and  information which are necessary for, filed with, incorporated by reference in or otherwise support any of  the foregoing.         “Acquisition” means the acquisition, whether through a single transaction or a series of related  transactions,  of  (a)  a  majority  of  the  Voting  Stock  or  other  controlling  ownership  interest  in  another  Person (including the  purchase  of  an  option, warrant or  convertible  or similar type  security to  acquire  such a controlling interest at the time it becomes exercisable by the holder thereof), whether by purchase  of such equity or other ownership interest or upon the exercise of an option or warrant for, or conversion  of securities into, such equity or other ownership interest, (b) assets of another Person which constitute all  or substantially all of the assets of such Person or of a division, line of business or other business unit of  such Person or (c) any Product.         “Act” has the meaning set forth in Section 11.17.         “Administrative  Agent”  means  Madryn  Health  Partners,  LP,  in  its  capacity  as  administrative  agent under any of the Loan Documents, or any successor administrative agent.         “Administrative Agent’s Office” means the Administrative Agent’s address and, as appropriate,  account as set forth on Schedule 11.02 or such other address or account as the Administrative Agent may  from time to time notify the Loan Parties and the Lenders.         “Affiliate” means, with respect to a specified Person, another Person that directly, or indirectly  through one or more intermediaries, Controls or is Controlled by or is under common Control with the  Person specified.    CHAR1\1707916v5 





 






         “Agreement” means this Credit Agreement.         “All-In-Yield” means, with respect to any Indebtedness, the all-in-yield thereof, and taking into  account  the  interest  rate  (but  without  duplication  of  any  applicable  interest  rate  floor),  interest  rate  margin,  interest  rate  floors,  original  issue  discount  and  upfront  fees  paid  generally  to  all  Persons  providing such Indebtedness (with original issue discount and upfront fees being equated to interest (as  reasonably  determined  by  the  Administrative  Agent  in  a  manner  consistent  with  customary  financial  practice)  based  on  a  four  year  life  to  maturity),  but  exclusive  of  any  arrangement,  structuring,  underwriting or similar fee paid to any Person in connection therewith that is not shared generally with all  Persons providing such Indebtedness.         “Anti-Money Laundering Laws” has the meaning set forth in Section 6.21(d).         “Applicable Foreign Loan Party Documents” has the meaning set forth in Section 6.26(a).         “Applicable Margin” means eight percent (8.00%) per annum.         “Applicable Percentage” means, with respect to any Lender at any time, (a) in respect of the Term  A  Facility,  with  respect  to  any  Term  A  Lender  at  any  time,  the  percentage  (carried  out  to  the  ninth  decimal place) of the Term A Facility represented by (i) on or prior to the Funding Date, such Term A  Lender’s Term A Commitment at such time and (ii) thereafter, the outstanding principal amount of such  Term A Lender’s Term A Loans at such time, (b) in respect of the Term B-1 Facility, with respect to any  Term B-1 Lender at any time, the percentage (carried out to the ninth decimal place) of the Term B-1  Facility represented by (i) at any time during the Term B-1 Availability Period, such Term B-1 Lender’s  Term B-1 Commitments at such time and (ii) thereafter, the outstanding principal amount of such Term  B-1 Lender’s Term B-1 Loans at such time, (c) in respect of the Term B-2 Facility, with respect to any  Term B-2 Lender at any time, the percentage (carried out to the ninth decimal place) of the Term B-2  Facility represented by (i) at any time during the Term B-2 Availability Period, such Term B-2 Lender’s  Term B-2 Commitments at such time and (ii) thereafter, the outstanding principal amount of such Term  B-2 Lender’s Term B-2 Loans at such time, (d) in respect of the Term B-3 Facility, with respect to any  Term B-3 Lender at any time, the percentage (carried out to the ninth decimal place) of the Term B-3  Facility represented by (i) at any time during the Term B-3 Availability Period, such Term B-3 Lender’s  Term B-3 Commitments at such time and (ii) thereafter, the outstanding principal amount of such Term  B-3 Lender’s Term B-3 Loans at such time, (e) in respect of the Term B-4 Facility, with respect to any  Term B-4 Lender at any time, the percentage (carried out to the ninth decimal place) of the Term B-4  Facility represented by (i) at any time during the Term B-4 Availability Period, such Term B-4 Lender’s  Term B-4 Commitments at such time and (ii) thereafter, the outstanding principal amount of such Term  B-4 Lender’s Term B-4 Loans at such time and (f) in respect of the Term C Facility, with respect to any  Term C Lender at any time, the percentage (carried out to the ninth decimal place) of the Term C Facility  represented by (i) at any time after the Term C Commitments have been established pursuant to Section  2.14, such Term C Lender’s unfunded Term C Commitment at such time plus the outstanding principal  amount of such Term C Lender’s Term C Loans at such time and (ii) thereafter, the outstanding principal  amount of such Term C Lender’s Term C Loans at such time.  If the Commitments of all of the Lenders  to make Loans have been terminated pursuant to Section 9.02, or if the Commitments have expired, then  the Applicable Percentage of each Lender in respect of the applicable Facility shall be determined based  on the Applicable Percentage of such Lender in respect of such Facility most recently in effect, giving  effect  to  any  subsequent  assignments.   The  Applicable  Percentage  of  each  Lender  in  respect  of  each  Facility  is  set  forth  opposite  the  name  of  such  Lender  on  Schedule  2.01  or  in  the  Assignment  and  Assumption pursuant to which such Lender becomes a party hereto, as applicable.         “Applicable Quarter” has the meaning set forth in Section 8.16(b)(i)(A).                                         2  CHAR1\1707916v5 





 






         “Appropriate  Lender”  means,  at  any  time,  with  respect  to  any  Facility,  a  Lender  that  has  a  Commitment with respect to such Facility or holds a Loan under such Facility at such time.         “Approved  Fund”  means  any  Fund  that  is  administered  or  managed  by  (a)  a  Lender,  (b)  an  Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.         “Approved  Strategic  Investment”  means  an  Acquisition  or  Investment  designated  by  the  Borrower  as  an  “Approved  Strategic  Investment,”  which  designation  must  be  approved  by  the  Administrative  Agent  in  its  sole and  absolute  discretion;  provided, that,  if the Borrower  would  like to  designate  an  Acquisition  or  Investment  as  an  “Approved  Strategic  Investment,”  the  Borrower  shall  provide  written  notice to  the  Administrative  Agent  to  that  effect  (including  such  other  documents  and  certificates  as  the  Administrative  Agent  shall  require  in  connection  therewith)  and  within  ten  (10)  Business Days after receipt thereof, the Administrative Agent shall inform the Borrower by written notice  whether it approves such Acquisition or Investment as an “Approved Strategic Investment.”         “Assignment and  Assumption” means an  assignment  and  assumption  entered  into  by  a  Lender  and an Eligible Assignee (with the consent of any party whose consent is required by Section 11.06(b)),  and  accepted  by  the  Administrative  Agent,  in  substantially  the  form  of  Exhibit  D  or  any  other  form  (including electronic documentation generated by MarkitClear or other electronic platform) approved by  the Administrative Agent.         “Attributable  Indebtedness”  means,  on  any  date,  (a)  in  respect  of  any  Capital  Lease  of  any  Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of  such date in accordance with GAAP, (b) in respect of any Synthetic Lease of any Person, the capitalized  amount of the remaining lease payments under the relevant lease that would appear on a balance sheet of  such Person prepared as of such date in accordance with GAAP if such lease were accounted for as a  Capital Lease and (c) in respect of any Securitization Transaction of any Person, the outstanding principal  amount of such financing, after taking into account reserve accounts and making appropriate adjustments,  determined by the Administrative Agent in its reasonable judgment.         “Audited  Financial  Statements”  means  the  audited  consolidated  balance  sheet of  the  Borrower  and its Subsidiaries for the fiscal year ended December 31, 2016, and the related consolidated statements  of income or operations, shareholders’ equity and cash flows for such fiscal year of the Borrower and its  Subsidiaries,  including  the  notes  thereto,  audited  by  independent  public  accountants  of  recognized  national standing and prepared in conformity with GAAP.         “Auditor’s Determination” has the meaning set forth in Section 4.12(f).         “Bail-In  Action”  means  the  exercise  of  any  Write-Down  and  Conversion  Powers  by  the  applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.         “Bail-In Legislation” means, with respect to any EEA Member Country implementing Article 55  of  Directive  2014/59/EU  of  the  European  Parliament  and  of  the  Council  of  the  European  Union,  the  implementing law for such EEA Member Country from time to time which is described in the EU Bail-In  Legislation Schedule.         “Banco Davivienda” means Banco Davivienda (Costa Rica) S.A.         “Banco Davivienda Documents” means, collectively, (a) that certain letter agreement dated as of  May 26, 2017  between Establishment Labs  Sociedad  Anonima  and  Banco  Davivienda,  (b) that certain  Mobile  Guarantee  on  Inventories  dated  as  of  May  26,  2017  between  Establishment  Labs  Sociedad                                         3  CHAR1\1707916v5 





 






   Anonima and Banco Davivienda, (c) that certain Bill of Exchange dated as of May 26, 2017 executed by  Establishment  Labs  Sociedad  Anonima  in  favor  of  Banco  Davivienda  and  (d)  all  other  certificates,  agreements, documents and instruments related to the foregoing.         “Belgian Companies Code” means the Belgian Wetboek van Vennootschappen/Code des Sociétés,  as amended from time to time.          “Belgian Loan Party” means any Loan Party that is organized under the laws of the Kingdom of  Belgium.         “Belgian  Share  Pledge  Agreement”  means  that  certain  share  pledge  agreement  dated  as  of  the  Funding Date executed by the Administrative Agent, for the benefit of the Secured Parties, Establishment  Labs Sociedad Anonima and the Borrower.         “Belgian Receivables Pledge Agreement” means that certain receivables pledge agreement dated  as of the Funding Date executed by the Administrative Agent, for the benefit of the Secured Parties, and  each of the Belgian Loan Parties.         “Blocking Law” means:               (a)   any provision of Council Regulation (EC) No 2271/1996 of 22 November 1996        (or  any  law  or  regulation  implementing  such  regulation  in  any  member  state  of  the  European        Union or the United Kingdom);               (b)   section  7   of   the   German    Foreign  Trade   Regulation        (Außenwirtschaftsverordnung);                (c)   any similar blocking or anti-boycott law in the United Kingdom; or               (d)   any  similar  blocking  or  anti-boycott  law  in  France  (whether  existing  now  or        enacted from time to time).          “Board  of  Directors”  means  (a)  with  respect  to  a  corporation,  the  board  of  directors  of  the  corporation or any committee thereof duly authorized to act on behalf of such board, (b) with respect to a  partnership, the Board of Directors of the general partner of the partnership, (c) with respect to a limited  liability company, the managing member or members or any controlling committee of managing members  thereof  or  if  not  member-managed,  the  managers  thereof  or  any  committee  of  managing  members  or  managers  thereof  duly  authorized  to  act  on  behalf  of  such  Persons,  and  (d)  with  respect  to  any  other  Person, the board or committee of such Person serving a similar function.         “Borrower” has the meaning set forth in the introductory paragraph hereto.         “Borrowing”  means  a  Term  A  Borrowing,  a  Term  B-1  Borrowing,  a  Term  B-2  Borrowing,  a  Term B-3 Borrowing, a Term B-4 Borrowing or a Term C Borrowing, as the context may require, in each  case, pursuant to Section 2.01.         “Brazilian  Guarantor” means any  Guarantor  that  is  organized  under  the laws of  the  Federative  Republic of Brazil.         “Brazilian Loan Party” means any Loan Party that is organized under the laws of the Federative  Republic of Brazil.                                         4  CHAR1\1707916v5 





 






         “Brazilian Share Pledge Agreement” means that certain quota pledge agreement dated as of the  Funding Date, as amended as of the Third Amendment Effective Date, executed by the Administrative  Agent, for the benefit of the Secured Parties, each of the Brazilian Loan Parties and each Loan Party that  owns Equity Interests in any Brazilian Loan Party.         “Brazilian  Receivables  Pledge  Agreement”  means  that  certain  receivables  pledge  agreement  dated as of the Funding Date, as amended as of the Third Amendment Effective Date, executed by the  Administrative Agent, for the benefit of the Secured Parties, and each of the Brazilian Loan Parties.         “Business Day” means any day other than a Saturday, Sunday or other day on which commercial  banks  are  authorized  to  close  under  the  Laws  of,  or  are  in  fact  closed  in,  the  state  where  the  Administrative Agent’s Office is located and, if such day relates to any Loan, means any such day that is  also  a  day  on  which  dealings  in  Dollar  deposits  are  conducted  by  and  between  banks  in  the  London  interbank eurodollar market.         “Business IP Rights” means, at any time of determination, IP Rights owned by, licensed to, or  otherwise  authorized  for  use  by  any  of  the  Loan  Parties  or  any  of  their  Subsidiaries  at  such  time  including, without limitation, the IP Rights listed on Schedule 6.17(b) to the Disclosure Letter.         “Businesses”  means,  at  any  time,  a  collective  reference  to  the  businesses  operated  by  the  Borrower and its Subsidiaries at such time.         “Business Facilities” means, at any time, a collective reference to the facilities and real properties  owned, leased or operated by any Loan Party or any Subsidiary.         “BVI Loan Party” means any Loan Party that is organized under the laws of the British Virgin  Islands.         “Capital Impairment” has the meaning set forth in Section 4.12(b).          “Capital  Lease”  means,  as  applied  to  any  Person,  any  lease  of  any  property  by  that  Person  as  lessee which, in accordance with GAAP, is required to be accounted for as a capital lease on the balance  sheet of that Person.         “Cash Equivalents” means any of the following types of Investments, to the extent owned by the  Borrower or any of its Subsidiaries free and clear of all Liens (other than Permitted Liens):               (a)   readily marketable obligations issued or directly and fully guaranteed or insured        by the United States or any agency or instrumentality thereof having maturities of not more than        three hundred sixty days (360) days from the date of acquisition thereof; provided, that, the full        faith and credit of the United States is pledged in support thereof;                            (b)   time deposits with, or insured certificates of deposit or bankers’ acceptances of,        any commercial bank that (i) is organized under the laws of the United States, any state thereof or        the  District  of  Columbia  or  is  the  principal  banking  subsidiary  of  a  bank  holding  company        organized under the laws of the United States, any state thereof or the District of Columbia, and is        a member of the Federal Reserve System, (ii) issues (or the parent of which issues) commercial        paper rated as described in clause (c) of this definition and (iii) has combined capital and surplus        of at least $1,000,000,000, in each case with maturities of not more than one hundred eighty (180)        days from the date of acquisition thereof;                                          5  CHAR1\1707916v5 





 






               (c)   commercial paper issued by any Person organized under the laws of any state of        the United States and rated at least “Prime-1” (or the then equivalent grade) by Moody’s or at        least “A-1” (or the then equivalent grade) by S&P, in each case with maturities of not more than        one hundred eighty (180) days from the date of acquisition thereof;               (d)   Investments,  classified  in  accordance  with  GAAP  as  current  assets  of  the        Borrower or any of its Subsidiaries, in money market investment programs registered under the        Investment Company Act of 1940, which are administered by financial institutions that have the        highest rating obtainable from either Moody’s or S&P, and the portfolios of which are limited        solely to Investments of the character, quality and maturity described in clauses (a), (b) and (c) of        this definition;               (e)   other short-term investments utilized by Foreign Subsidiaries in accordance with        normal  investment  practices  for  cash  management  in  investments  of  a  type  analogous  to  the        foregoing; and                (f)   solely  with  respect  to  any  Foreign  Subsidiary,  non-Dollar  denominated  (i)        certificates  of  deposit  of,  bankers  acceptances  of,  or  time  deposits  with,  any  commercial  bank        which is organized and existing under the laws of the country in which such Foreign Subsidiary        maintains its chief executive office and principal place of business, provided such country is (x) a        member  of  the  Organization  for  Economic  Cooperation  and  Development  or  (y)  the  British        Virgin Islands, the Republic of Costa  Rica, or the Federative Republic of Brazil, and, in each        case,  whose  short-term  commercial  paper  rating  is  at  least  “Prime-1”  (or  the  then  equivalent        grade) by Moody’s or at least “A-1” (or the then equivalent grade) by S&P (any such bank being        an “Approved Foreign Bank”) and maturing within one hundred eighty (180) days of the date of        acquisition  and  (ii)  equivalents  of  demand  deposit  accounts  which  are  maintained  with  an        Approved Foreign Bank.         “Change in Law” means the occurrence, after the Effective Date, of any of the following: (a) the  adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation  or  treaty  or  in  the  administration,  interpretation,  implementation  or  application  thereof  by  any  Governmental  Authority  or  (c)  the  making  or  issuance  of  any  request,  rule,  guideline  or  directive  (whether or not having the force of law) by any Governmental Authority; provided, that, notwithstanding  anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and  all  requests,  rules,  guidelines  or  directives  thereunder  or  issued  in  connection  therewith  and  (y)  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  Law”, regardless of the date enacted, adopted or issued.         “Change of Control” means the occurrence of any of the following events:               (a)   any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of        the  Securities  Exchange  Act  of  1934),  other  than  the  Holders,  is  or  becomes  the  “beneficial        owner” (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except        that a person or group shall be deemed to have “beneficial ownership” of all securities that such        person or group has the right to acquire, whether such right is exercisable immediately or only        after the passage of time (such right, an “option right”)), directly or indirectly, of Equity Interests        representing 35% or more of the aggregate ordinary voting power in the election of the Board of        Directors  of  the  Borrower  represented  by  the  issued  and  outstanding  Equity  Interests  of  the                                          6  CHAR1\1707916v5 





 






         Borrower on a fully diluted basis (and taking into account all such securities that such person or        group has the right to acquire pursuant to any option right); or               (b)   during any period of twelve (12) consecutive months, a majority of the members        of  the  Board  of  Directors  of  the  Borrower  cease  to  be  composed  of  individuals  (i)  who  were        members  of  that  Board  of  Directors  on  the  first  day  of  such  period,  (ii)  whose  election,        appointment or nomination to that Board of Directors was approved by individuals referred to in        clause (i) above constituting at the time of such election, appointment or nomination at least a        majority  of  that  Board  of  Directors  or  (iii)  whose  election,  appointment  or  nomination  to  that        Board  of  Directors  was  approved  by  individuals  referred  to  in  clauses  (i)  and  (ii)  above        constituting  at  the time  of such election,  appointment  or  nomination  at  least a majority of that        Board of Directors; or               (c)   any  “Change  of  Control”  (or  any  comparable  term)  shall  occur  under  any        Permitted  Senior  Revolving  Credit  Document  or  any  document  or  other  agreement  evidencing        any Indebtedness with an aggregate principal amount in excess of the Threshold Amount; or               (d)   except as otherwise permitted under this Agreement, the Borrower shall cease to        own and control, directly or indirectly, beneficially and of record, one hundred percent (100%) of        the  issued  and  outstanding  Equity  Interests  (other  than  directors’  qualifying  shares  or  Equity        Interests that are required to be held by another person in order to satisfy a foreign requirement of        Law prescribing an equity owner resident in the local jurisdiction) of each of its Subsidiaries, free        and clear of all Liens except Liens created by the Collateral Documents.         “Collateral”  means  a  collective  reference  to  all  real  and  personal  property  (other  than,  for  the  avoidance of doubt, Excluded Property) with respect to which Liens in favor of the Administrative Agent  (including as parallel debt creditor), for the benefit of the Secured Parties, are purported to be granted  pursuant to and in accordance with the terms of the Collateral Documents.         “Collateral  Access  Agreement”  means  an  agreement  in  form  and  substance  reasonably  satisfactory to the Administrative Agent pursuant to which a lessor of real property on which Collateral is  stored or otherwise located, or a warehouseman, processor or other bailee of inventory or other property  owned  by  any  Loan  Party,  acknowledges  the  Liens  of  the  Administrative  Agent  and  waives  (or,  if  approved by the Administrative Agent, subordinates) any Liens held by such Person on such property,  and permits the Administrative Agent access to any Collateral stored or otherwise located thereon.         “Collateral  Documents”  means  a  collective  reference  to  the  Security  Agreements,  the  Pledge  Agreements, the Qualifying Control Agreements, the Collateral Access Agreements, the Mortgages, the  Real Property Security Documents and other security documents as may be executed and delivered by the  Loan Parties pursuant to the terms of Section 7.14.         “Commitment”  means  a  Term  A  Commitment,  a  Term  B-1  Commitment,  a  Term  B-2  Commitment,  a  Term  B-3  Commitment,  a  Term  B-4  Commitment  or  a  Term  C  Commitment,  as  the  context may require.         “Compliance Certificate” means a certificate substantially in the form of Exhibit E.         “Contract”  means  any  contract,  license,  lease,  agreement,  obligation,  promise,  undertaking,  understanding, arrangement,  document, commitment,  entitlement  or  engagement  under  which a  Person  has, or will have, any liability or contingent liability (in each case, whether written or oral, express or                                          7  CHAR1\1707916v5 





 






   implied,  and  whether  in  respect  of  monetary  or  payment  obligations,  performance  obligations  or  otherwise).         “Control”  means  the  possession,  directly  or  indirectly,  of  the  power  to  direct  or  cause  the  direction of the management or policies of a Person, whether through the ability to exercise voting power,  by  contract  or  otherwise.  “Controlling” and “Controlled”  have meanings  correlative  thereto.   Without  limiting the generality of the foregoing, a Person shall be deemed to be Controlled by another Person if  such  other  Person  possesses,  directly  or  indirectly,  power  to  vote  ten  percent  (10%)  or  more  of  the  securities having  ordinary voting  power for the  election  of directors, managing general partners or the  equivalent.         “Controlled Account” has the meaning set forth in Section 7.18(a).         “Controlled  Investment Affiliate” means, as  to  any Person,  any  other  Person  which directly  or  indirectly is in control of, is controlled by, or is under common control with such Person and is organized  by  such  first  Person  (or  any  other  Person  controlling  such  first  Person)  primarily  for  making  equity  investments in the Borrower or any other portfolio companies in the ordinary course of business.         “Convertible Indebtedness” means Indebtedness having a feature which entitles the holder thereof  to convert or exchange all or a portion of such Indebtedness into or by reference to Equity Interests of the  Borrower.         “Copyrights”  means,  collectively,  all  copyrights  (whether  statutory  or  common  law,  whether  established or registered in the United States or any other country or any political subdivision thereof,  whether registered or unregistered and whether published or unpublished), all tangible embodiments of  the  foregoing  and  all  copyright  registrations  and  applications, together  with  any  and  all  (a)  rights  and  privileges arising under applicable Law and international treaties and conventions with respect to the use  of such copyrights, (b) reissues, renewals, continuations and extensions thereof and amendments thereto,  (c)  income,  fees,  royalties,  damages,  claims  and  payments  now  or  hereafter  due  and/or  payable  with  respect  thereto,  including  damages  and  payments  for  past,  present  or  future  infringements  thereof,  (d)  rights  corresponding  thereto  throughout  the  world  and  (e)  rights  to  sue  for  past,  present  or  future  infringements thereof.         “Corresponding Debt” has the meaning set forth in Section 11.21.         “Costa Rican Loan Party” means any Loan Party that is organized under the laws of the Republic  of Costa Rica.         “Costa  Rican  IP  Security  Agreement”  means  the  Costa  Rican  intellectual  property  pledge  agreement/mobile  guaranty  dated  as  of  the  Funding  Date,  as  amended  as  of  the  Third  Amendment  Effective Date, executed in favor of the Administrative Agent, for the benefit of the Secured Parties, by  Establishment  Labs  Sociedad  Anonima,  a  Costa  Rica  corporation,  with  respect  to  its  Costa  Rican  intellectual property.         “Costa Rican Security Trust Agreement” means that certain security trust agreement (which, for  the avoidance of doubt, shall include a pledge of the Equity Interests of each Subsidiary that is organized  under the laws of the Republic of Costa Rica) dated as of the Funding Date, as amended as of the Third  Amendment Effective Date, by and among the Borrower, the Administrative Agent, each of the Costa  Rican Loan Parties and the Trustee, for the benefit of the Secured Parties.         “Crown Predator” means CPH TU, LP, a Delaware limited partnership.                                         8  CHAR1\1707916v5 





 






         “Crown Predator Convertible Indebtedness” means the Indebtedness owing by the Borrower to  Crown Predator pursuant to that certain Note and Warrant Purchase Agreement dated as of August 28,  2015 between the Borrower and Crown Predator, as amended, modified, extended, restated, replaced or  supplemented from time to time, and as evidenced by (a) that certain Amended and Restated Convertible  Secured Promissory Note dated as of September 14, 2016 executed by the Borrower in favor of Crown  Predator  in  the  original  principal  amount  of  $10,000,000,  (b)  that  certain  Amended  and  Restated  Convertible Secured Promissory Note dated as of September 14, 2016 executed by the Borrower in favor  of Crown Predator in the original principal amount of $3,000,000, (c) that certain Amended and Restated  Convertible Secured Promissory Note dated as of September 14, 2016 executed by the Borrower in favor  of Crown Predator in the original principal amount of $5,000,000, (d) that certain Amended and Restated  Convertible Secured Promissory Note dated as of September 14, 2016 executed by the Borrower in favor  of Crown Predator in the original principal amount of $1,840,000 and (e) that certain Convertible Secured  Promissory Note dated as of September 14, 2016 executed by the Borrower in favor of Crown Predator in  the original principal amount of $4,408,076.71.         “Cure Period” has the meaning set forth in Section 8.16(b)(i).         “Cure Right” has the meaning set forth in Section 8.16(b)(i).         “Debt Issuance” means the issuance by any Loan Party or any Subsidiary of any Indebtedness  other than Indebtedness permitted under Section 8.03.         “Debt Issuance Notice” has the meaning set forth in Section 2.13(a).         “Debtor Relief Laws” means (a) the Bankruptcy Code of the United States, (b) the Insolvency  Act, 2003 of the British Virgin Islands, (c) the Commercial Code, Civil Code and Civil Procedure Code,  in  each  case, of  the  Republic  of  Costa Rica  and  (d)  all  other liquidation,  conservatorship,  bankruptcy,  assignment  for  the  benefit  of  creditors,  moratorium,  rearrangement,  receivership,  insolvency,  reorganization, or similar debtor relief Laws of the United States, the British Virgin Islands, the Republic  of  Costa  Rica,  the  Kingdom  of  Belgium,  the  Federative  Republic  of  Brazil,  England  and  Wales,  the  French Republic, the Federal Republic of Germany or other applicable jurisdictions from time to time in  effect.         “Default”  means  any  event  or  condition  that  constitutes  an  Event  of  Default  or  that,  with  the  giving of any notice, the passage of time, or both, would be an Event of Default.         “Default Rate” has the meaning set forth in Section 2.06(b).         “Defaulting  Lender”  means,  subject  to  Section  2.12(b),  any  Lender,  as  determined  by  the  Administrative Agent, that (a) has failed to perform any of its funding obligations hereunder, including  with respect to any Term B-1 Commitment, Term B-2 Commitment, Term B-3 Commitment, Term B-4  Commitment or Term C Commitment, within three (3) Business Days of the date required to be funded  by  it  hereunder,  (b)  has  notified  the  Borrower  or  the  Administrative  Agent  that  it  does  not  intend  to  comply with its funding obligations hereunder or (c) has, or has a direct or indirect parent company that  has, (i) become the subject of a proceeding under any Debtor Relief Law, (ii) had a receiver, conservator,  trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization  or liquidation of its business or a custodian appointed for it or (iii) taken any action in furtherance of, or  indicated its consent to, approval of or acquiescence in any such proceeding or appointment; provided,  that, a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any  Equity  Interests  in  that  Lender  or  any  direct  or  indirect  parent  company  thereof  by  a  Governmental  Authority.                                         9  CHAR1\1707916v5 





 






         “Designated  Jurisdiction”  means  any  country  or  territory  to  the  extent  that  such  country  or  territory is the subject of any Sanction.         “Device” means any medical instrument, apparatus, implement, machine, contrivance, implant, in  vitro  reagent  or  other  similar  or  related  item,  including  any  component,  part  or  accessory,  that  (a)  is  intended  for  use  in  the  diagnosis  of  disease,  malady  or  other  conditions  or  in  the  cure,  mitigation,  treatment  or  prevention  of  disease  or  malady,  in  man  or  other  animals,  or  is  intended  to  affect  the  structure or any function of the body of man or other animals, (b) does not achieve its primary intended  purpose or purposes through chemical action within or on the body of man or other animals and (c) is not  dependent upon being metabolized for the achievement of its primary intended purpose or purposes.         “Device  Clearance  Application”  means  any  premarket  approval  application  submitted  under  Section 515 of the FDCA (21 U.S.C. § 360e) (a “PMA”), any de novo request submitted under Section  513(f) of the FDCA (21 U.S.C. § 360c(f)), or any 510(k) submitted under Section 510(k) of the FDCA  (21 U.S.C. § 360(k)) seeking clearance from the FDA for a Device that is substantially equivalent to a  legally marketed predicate Device, as defined in the FDCA, or any corresponding non-U.S. application in  any other non-U.S. jurisdiction, including, with respect to the European Union, any equivalent submission  to  a  Standard  Body  pursuant  to  an  applicable  directive  of  the  European  Council  with  respect  to  CE  marking (or, if applicable, a self-certification of conformity with respect to any such directive through a  “declaration of conformity”).         “Disclosure Letter” means that certain disclosure letter dated as of the Effective Date containing  certain  schedules  delivered  by  the  Loan  Parties  to  the  Administrative  Agent  (for  the  benefit  of  the  Lenders) (as such schedules are supplemented from time to time in accordance with Section 7.02(a)).         “Disposition” or “Dispose” means the sale, transfer, license, lease, issuance or other disposition  (including (x) any Sale and Leaseback Transaction and (y) any issuance by any Subsidiary of its Equity  Interests, but excluding any issuance by the Borrower of its Equity Interests) of any property by any Loan  Party  or  any  Subsidiary,  including  any  sale,  assignment,  transfer  or  other  disposal,  with  or  without  recourse, of any notes or accounts receivable or any rights and claims associated therewith, but excluding  the following: (a) the sale, lease, license, transfer or other disposition of inventory in the ordinary course  of business, including pursuant to exclusive distribution arrangements consistent with past practice, (b)  the sale, lease, license, transfer or other disposition in the ordinary course of business of surplus, obsolete  or  worn  out  property  no  longer  used  or  useful  in  the  conduct  of  business  of  any  Loan  Party  and  its  Subsidiaries, (c) any sale, lease, license, transfer or other disposition of property to any Loan Party or any  Subsidiary;  provided,  that,  (i)  if  the  transferor  of  such  property  is  a  Qualified  Loan  Party,  (A)  the  transferee  thereof  must  be  a  Qualified  Loan  Party  or  (B)  to  the  extent  such  transaction  constitutes  an  Investment, such transaction is permitted under Section 8.02, and (ii) if the transferor of such property is a  Loan Party that is not a Qualified Loan Party, (A) the transferee thereof must be a Loan Party or (B) to the  extent such transaction constitutes an Investment, such transaction is permitted under Section 8.02, (d)  granting licenses of intellectual property permitted by Section 8.19(b), (e) any Involuntary Disposition, (f)  the sale, transfer, issuance or other disposition of a de minimis number of shares of the Equity Interests of  a Foreign Subsidiary in order to qualify members of the governing body of such Subsidiary if required by  applicable Law, (g) the abandonment or other disposition of IP Rights that are not material and are no  longer  used  or  useful  in  any  material  respect  in  the  business  of  the  Borrower and  its  Subsidiaries,  (h)  licenses, sublicenses, leases or subleases (in each case, other than with respect to IP Rights or intellectual  property) granted to third parties in the ordinary course of business and not interfering with the business  of  the  Borrower  and  its  Subsidiaries,  (i)  dispositions  of  cash  and  Cash  Equivalents,  (j)  to  the  extent  constituting Dispositions, transactions permitted by Sections 8.02, 8.04 and 8.06 and Liens permitted by  Section 8.01, (k) discounts of or forgiveness of accounts receivable or in connection with the collection or                                          10  CHAR1\1707916v5 





 






   compromise thereof, in each case, in the ordinary course of business and (l) Permitted Sale and Leaseback  Transactions.         “Disqualified Capital Stock” means any Equity Interest which, by its terms (or by the terms of  any security into which it is convertible or for which it is exchangeable), or upon the happening of any  event, (a) matures (excluding any maturity as the result of an optional redemption by the issuer thereof) or  is mandatorily  redeemable,  pursuant to  a  sinking fund  obligation  or  otherwise, or is redeemable at the  option of the holder thereof, in whole or in part, prior to the one hundred eighty-first (181st) day after the  Maturity  Date,  (b)  requires  the  payment  of  any  cash  dividends  at  any  time  prior  to  the  one  hundred  eighty-first (181st) day after the Maturity Date, (c) contains any repurchase obligation which may come  into effect prior to the Facility Termination Date, or (d) is convertible into or exchangeable (unless at the  sole option of the issuer thereof) for (i) debt securities or (ii) any Equity Interests referred to in clause (a),  (b)  or  (c)  above,  at  any  time  prior  to  the  one  hundred  eighty-first  (181st)  day  after  the  Maturity  Date;  provided,  that,  (x)  any  Equity  Interests  that  would  not  constitute  Disqualified  Capital  Stock  but  for  provisions thereof giving holders thereof (or the holders of any security into or for which such Equity  Interests are convertible, exchangeable or exercisable) the right to require the issuer thereof to redeem or  repurchase such Equity Interests upon the occurrence of a change in control or an asset sale occurring  prior to the one hundred eighty-first (181st) day after the Maturity Date shall not constitute Disqualified  Capital Stock to the extent that such Equity Interests provide that the issuer thereof will not redeem or  repurchase any such Equity Interests pursuant to such provisions prior to the Facility Termination Date  and  (y)  only  the  portion  of  Equity  Interests  which  so  matures  or  is  mandatorily  redeemable,  is  so  redeemable at the option of the holder thereof, has such cash dividend, has such repurchase obligation or  is so convertible or exchangeable, in each case, prior to the one hundred eighty-first (181st) day after the  Maturity Date will be deemed to be Disqualified Capital Stock; provided, further, however, that if such  Equity Interest is issued to any current or former employee, director or consultant or to any plan for the  benefit of current or former employees, directors or consultants of the Borrower or any Subsidiary or by  any such plan to such current or former employees, directors or consultants such Equity Interest will not  constitute Disqualified Capital Stock solely because it may be required to be repurchased by the Borrower  or  any  Subsidiary  in  order  to  satisfy  applicable  statutory  or  regulatory  obligations,  including  tax  withholding, or as a result of such current or former employee’s, director’s or consultant’s termination,  death or disability.         “Dollar” and “$” mean lawful money of the United States.         “Domestic Subsidiary” means any Subsidiary that is organized under the laws of any state of the  United States or the District of Columbia.         “DPTA” has the meaning set forth in Section 4.12(g)(ii).         “Earn Out Obligations” means, with respect to an Acquisition, all obligations of the applicable  Loan Party or any Subsidiary to make earn out or other contingency payments (including purchase price  adjustments, non-competition and consulting agreements, or other indemnity obligations) pursuant to the  documentation  relating  to  such  Acquisition.   For  purposes  of  determining  the  aggregate  consideration  paid for an Acquisition at the time of such Acquisition, the amount of any Earn Out Obligations shall be  deemed  to  be  the  maximum  amount  of  the  earn-out  payments  in  respect  thereof  as  specified  in  the  documents  relating  to  such  Acquisition.   For  purposes  of  determining  the  amount  of  any  Earn  Out  Obligations to be included in the definition of Funded Indebtedness, the amount of Earn Out Obligations  shall be deemed to be the aggregate liability in respect thereof, as determined in accordance with GAAP.         “EEA Financial Institution” means (a) any credit institution or investment firm established in any  EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity                                         11  CHAR1\1707916v5 





 






   established in an EEA Member Country which is a parent of an institution described in clause (a) of this  definition or (c) any financial institution established in an EEA Member Country which is a Subsidiary of  an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision  with its parent.         “EEA  Member  Country”  means  any  of  the  member  states  of  the  European  Union,  Iceland,  Liechtenstein and Norway.         “EEA Resolution Authority” means any public administrative authority or any Person entrusted  with  public  administrative  authority  of  any  EEA  Member  Country  (including  any  delegee)  having  responsibility for the resolution of any EEA Financial Institution.         “Effective Date” means August 24, 2017.         “Eligible Assets” means fixed or capital assets that are used or useful in the same or a similar line  of business as the Borrower and its Subsidiaries were engaged in on the Effective Date (or any reasonable  extension or expansions thereof).         “Eligible  Assignee”  means  any  Person  that  meets  the  requirements  to  be  an  assignee  under  Section  11.06(b)(iii)  and  (v)  (subject  to  such  consents,  if  any,  as  may  be  required  under  Section  11.06(b)(iii)).         “EMA” means the European Medicines Agency or any successor entity.         “Employee  Benefit  Non-U.S.  Plan”  means  any  plan,  fund  (including,  without  limitation,  any  superannuation fund) or other similar program established, contributed to (regardless of whether through  direct  contributions  or  through  employee  withholdings) or  maintained  outside the  United  States  by the  Borrower or any of its Subsidiaries primarily for the benefit of employees of the Borrower or any of its  Subsidiaries residing outside the United States, which plan, fund or other similar program provides, or  results in, retirement income, a deferral of income in contemplation of retirement, or payments to be made  upon termination of employment, and which plan is not subject to ERISA.          “Employee  Benefit  Non-US  Plan  Event”  means  (a)  a  failure  to  meet  any  minimum  funding  standards, pay any required installment or make any required contribution under any Employee Benefit  Non-U.S. Plan, (b) the withdrawal or termination of any Employee Benefit Non-U.S. Plan resulting in  material  liability  to  the  Borrower  or  any  of  its  Subsidiaries,  (c)  the  institution  by  any  Governmental  Authority  of  proceedings  to  terminate  any  Employee  Benefit  Non-U.S.  Plan,  (d)  the  imposition  of  material  liability  on  the  Borrower  or  any  of  its  Subsidiaries  due  to  the  failure  to  comply  with  any  applicable Law relating to any Employee Benefit Non-U.S. Plan, (e) the withdrawal by the Borrower or  any  of  its  Subsidiaries from  any  Employee  Benefit Non-U.S.  Plan  resulting  in  material liability  to the  Borrower or any of its Subsidiaries, (f) any imposition by any Governmental Authority of any material  tax, fine or penalty against the Borrower or any of its Subsidiaries due to the failure to comply with laws  and regulations applicable to any Employee Benefit Non-U.S. Plan, (g) the assertion of any material claim  against the Borrower or any of its Subsidiaries with respect to any Employee Benefit Non-U.S. Plan or (h)  the imposition of any Lien on the assets of the Borrower or any of its Subsidiaries to secure obligations  under any Employee Benefit Non-U.S. Plan.           “Enforcement Notice” has the meaning set forth in Section 4.12(d).          “Environmental Laws” means any and all federal, state, provincial, territorial, local, foreign and  other  applicable  statutes,  laws,  regulations,  ordinances,  rules,  judgments,  orders,  decrees,  permits,                                         12  CHAR1\1707916v5 





 






   concessions, grants, franchises, licenses, agreements or governmental restrictions relating to pollution and  the protection of the environment or the release of any materials into the environment, including those  related to hazardous substances or wastes, air emissions and discharges to waste or public systems.         “Environmental Liability” means any liability, contingent or otherwise (including any liability for  damages, costs of environmental remediation, fines, penalties or indemnities), of the Borrower, any other  Loan  Party  or  any  of  their  respective  Subsidiaries  directly  or  indirectly  resulting  from  or  based  upon  (a) violation  of  any  Environmental  Law,  (b)  the  generation,  use,  handling,  transportation,  storage,  treatment  or  disposal  of  any  Hazardous  Materials,  (c)  exposure  to  any  Hazardous  Materials,  (d)  the  release  or  threatened  release  of  any  Hazardous  Materials  into  the  environment  or  (e)  any  contract,  agreement  or  other  consensual  arrangement  pursuant  to  which  liability  is  assumed  or  imposed  with  respect to any of the foregoing.         “Equity Interests”  means, with respect to any Person, all of the shares of capital stock of (or other  ownership or profit interests in) such Person, all of the warrants, options or other rights for the purchase  or acquisition from such Person of shares of capital stock of (or other ownership or profit interests in)  such Person, all of the securities convertible into or exchangeable for shares of capital stock of (or other  ownership or profit interests in) such Person or warrants, rights or options for the purchase or acquisition  from such Person of such shares (or such other interests), and all of the other ownership or profit interests  in such Person (including partnership, member, membership or trust interests therein), whether voting or  nonvoting, and whether or not such shares, warrants, options, rights or other interests are outstanding on  any  date  of  determination;  provided,  however,  that  Equity  Interests  shall  not  include  Convertible  Indebtedness.          “ERISA”  means  the  United  States  Employee  Retirement  Income  Security  Act  of  1974,  as  amended, and the regulations promulgated thereunder from time to time.         “ERISA  Affiliate”  means  any  trade  or  business  (whether  or  not  incorporated)  under  common  control with the Borrower within the meaning of Section 414(b) or (c) of the Internal Revenue Code (and  Sections 414(m) and (o) of the Internal Revenue Code for purposes of provisions relating to Section 412  of the Internal Revenue Code).         “ERISA  Event”  means  (a)  a  Reportable  Event  with  respect  to  any  Pension  Plan,  (b)  the  withdrawal of the Borrower or any ERISA Affiliate from any Pension Plan subject to Section 4063 of  ERISA  during  a  plan  year  in  which  such  entity  was  a  “substantial  employer”  as  defined  in  Section  4001(a)(2)  of  ERISA  or  a  cessation  of  operations  that  is  treated  as  such  a  withdrawal  under  Section  4062(e) of ERISA, (c) a complete or partial withdrawal by the Borrower or any ERISA Affiliate from a  Multiemployer  Plan  (within  the  meaning  of  Sections  4203  and  4205  of  ERISA,  respectively)  or  notification that a Multiemployer Plan is insolvent (within the meaning of Section 4245 of ERISA), (d)  the filing of a notice of intent to terminate or the treatment of a Pension Plan amendment as a termination  under Sections 4041 or 4041A of ERISA, (e) the institution by the PBGC of proceedings to terminate a  Pension Plan, (f) any event or condition which constitutes grounds under Section 4042 of ERISA for the  termination of, or the appointment of a trustee to administer, any Pension Plan, (g) the determination that  any  Pension  Plan  is  considered  an  at-risk  plan  or  a  plan  in  endangered  or  critical  status  within  the  meaning of Sections 430, 431 and 432 of the Internal Revenue Code or Sections 303, 304 and 305 of  ERISA,  or  (h)  the  imposition  of  any  liability  under  Title  IV  of  ERISA,  other  than  for  any  PBGC  premiums  due  but  not  delinquent  under  Section  4007  of  ERISA,  upon  the  Borrower  or  any  ERISA  Affiliate with respect to any Pension Plan.         “EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the  Loan Market Association (or any successor person), as in effect from time to time.                                         13  CHAR1\1707916v5 





 






         “Event of Default” has the meaning set forth in Section 9.01.         “Exchange Act” means the Securities Exchange Act of 1934.         “Excluded Property” means, with respect to any Loan Party, including any Person that becomes a  Loan  Party  after  the  Effective  Date  as  contemplated  by  Section  7.12,  (a)  any  real  property  which  is  located  outside  of  the  United  States  unless  requested  by  the  Administrative  Agent  or  the  Required  Lenders,  (b)  (i)  any  leasehold  interest  of  any  Loan  Party  in  real  property  and  (ii)  any  fee  owned  real  property which is subject to a Lien of the type described in Section 8.01(n), (c) solely with respect to any  U.S. Loan Party, any personal property (including, without limitation, motor vehicles) of such U.S. Loan  Party in respect of which perfection of a Lien is not either (i) governed by the Uniform Commercial Code  or  (ii)  effected  by  appropriate  evidence  of  the  Lien  being  filed  in  either  the  United  States  Copyright  Office or the United States Patent and Trademark Office, unless requested by the Administrative Agent or  the Required Lenders, (d) any property which, subject to the terms of Section 8.09, is subject to a Lien of  the type described in Section 8.01(i) pursuant to documents which prohibit such Loan Party from granting  any  other  Liens  in  such  property,  (e)  any  United  States  intent-to-use  trademark  or  service  mark  application to the extent that, and solely during the period in which, the grant of a security interest therein  would impair the validity or enforceability of such intent-to-use trademark or service mark application  under federal law, (f) any Equity Interests in any Person that is not a Wholly Owned Subsidiary of a Loan  Party,  to  the  extent  that  the  granting  of  a  Lien  thereon,  or  a  security  interest  therein,  is  prohibited  or  requires the consent of another Person (that is not the Borrower or any Affiliate thereof), in each case,  pursuant to the Organization Documents of such Person that is not a Wholly Owned Subsidiary; provided,  that, in the event of the termination or elimination of any such prohibition or requirement for consent, to the  extent sufficient to permit any such Equity Interests to become Collateral, or upon the granting of any such  consent,  or  waiving  or  terminating  any  requirement  for  such  consent,  a  security  interest  in  such  Equity  Interests shall be automatically and simultaneously  granted  under the applicable Collateral  Document  and  such Equity Interests shall be included as Collateral, (g) solely with respect to any U.S. Loan Party, any  General Intangible (as defined in the Uniform Commercial Code), permit, lease, license, contract or other  Instrument (as defined in the Uniform Commercial Code) of such U.S. Loan Party to the extent the grant of  a security interest in such General Intangible (as defined in the Uniform Commercial Code), permit, lease,  license,  contract  or  other  Instrument  (as  defined  in  the  Uniform  Commercial  Code)  in  the  manner  contemplated by the Collateral Documents, under the terms thereof or under applicable Law, is prohibited  and would result in the termination thereof or give the other parties thereto the right to terminate, accelerate  or otherwise alter such U.S. Loan Party’s rights, titles and interests thereunder (including upon the giving of  notice or the lapse of time or both); provided, that, (i) any such limitation described in this clause (g) on the  security  interests  granted  under  the  Collateral  Documents  shall  only  apply  to  the  extent  that  any  such  prohibition  or  right  to  terminate  or  accelerate  or  alter  a  U.S.  Loan  Party’s  rights  could  not  be  rendered  ineffective pursuant to the Uniform Commercial Code or any other applicable Law or principles of equity and  (ii) in the event of the termination or elimination of any such prohibition or right or the requirement for any  consent contained in any applicable Law, General Intangible (as defined in the Uniform Commercial Code),  permit, lease, license, contract or other Instrument (as defined in the Uniform Commercial Code), to the  extent sufficient to permit any such item to become Collateral, or upon the granting of any such consent, or  waiving or terminating any requirement for such consent, a security interest in such General Intangible (as  defined in the Uniform Commercial Code), permit, lease, license, contract or other Instrument (as defined  in the Uniform Commercial Code) shall be automatically and simultaneously granted under the applicable  Collateral Documents and such items shall be included as Collateral, (h) assets to the extent that pledges  thereof,  and  security  interests  therein,  are  prohibited  by  applicable  Law;  provided,  that,  (i) any  such  limitation described in  this  clause (h)  on the security  interests granted under  the  Collateral  Documents  shall only apply to the extent that any such prohibition could not be rendered ineffective pursuant to the  Uniform Commercial Code or any other applicable Law or principles of equity and (ii) in the event of the  termination or elimination of any such prohibition contained in any applicable Law, a security interest in                                         14  CHAR1\1707916v5 





 






   such assets shall be automatically and simultaneously granted under the applicable Collateral Documents  and such assets shall be included as Collateral and (i) any real or personal property as to which (i) the  Administrative Agent and the Borrower agree in writing that the costs or other consequences of obtaining  a security interest or perfection thereof are excessive in view of the benefits to be obtained by the Secured  Parties  therefrom  or  (ii)  the  Administrative  Agent  and  the  Borrower  agree  in  writing  that  obtaining  a  security interest or perfection thereof would result in material adverse tax consequences to the Borrower  or its Subsidiaries.         “Excluded  Subsidiary”  means  (a)  any  Foreign  Subsidiary,  the  perfected  grant  of  a  security  interest in the assets of such Subsidiary in support of, and the guaranteeing of, the Obligations (i) would  be prohibited by applicable Law in the jurisdiction of formation or incorporation of such Subsidiary (as  reasonably determined by the Borrower with the consent of the Administrative Agent) or (ii) would result  in material adverse tax consequences to the Borrower or its Subsidiaries (as reasonably determined by the  Borrower with the consent of the Administrative Agent), (b) any other Foreign Subsidiary with respect to  which (in the reasonable judgment of the Administrative Agent), the cost or other consequences of such  Foreign Subsidiary guaranteeing the Obligations are excessive in view of the benefits to be obtained by  the Secured Parties therefrom or (c) any Immaterial Subsidiary.         “Exclusivity Period” has the meaning set forth in Section 2.13(b).         “Existing  Credit  Agreement”  means  that  certain  Credit  Agreement  and  Guaranty  dated  as  of  September 19, 2016 by and among the Borrower, certain of the Borrower’s subsidiaries from time to time  party thereto and the lenders from time to time party thereto, as amended or modified from time to time.         “Extraordinary Receipts” means any cash received by or paid to or for the account of any Person  not  in  the  ordinary  course  of  business,  including  tax  refunds,  pension  plan  reversions,  proceeds  of  insurance (other than proceeds of business interruption insurance to the extent such proceeds constitute  compensation  for  lost  earnings),  condemnation  awards  (and  payments  in  lieu  thereof),  indemnity  payments and any purchase price adjustments; provided, that, “Extraordinary Receipts” shall not include  (x) cash payments received by or paid to or for the account of any Loan Party pursuant to a judgment,  claim (including an insurance claim), settlement, cause of action or indemnification claim, to the extent  such payments are in respect of any obligations owed by such Loan Party to a third party that is not an  Affiliate of a Loan Party with respect to the underlying claim for which such judgment, claim, settlement,  cause of action or indemnification claim arose and are applied to pay (or reimburse such Loan Party for  payment  on  account  of)  such  obligations  and  (y) any  purchase  price  adjustment  (other  than  working  capital purchase price adjustments) pursuant to any acquisition agreement entered into after the Effective  Date in connection with a Permitted Acquisition to the extent that the purchase price of such Permitted  Acquisition  was  paid  solely  with  Qualified  Capital  Stock  or  with  the  proceeds  from  the  issuance  of  Qualified Capital Stock by the Borrower or a capital contribution to the Borrower.         “Facility” means the Term A Facility, the Term B-1 Facility, the Term B-2 Facility, the Term B-3  Facility, the Term B-4 Facility or the Term C Facility, as the context may require.         “Facility Termination Date” means the date as of which all of the following shall have occurred:  (a) all of the Commitments have terminated and (b) all Obligations have been paid in full in cash (other  than contingent indemnification obligations for which no claim has been asserted).         “FATCA” means Sections 1471 through 1474 of the Internal Revenue Code as of the Effective  Date  (or  any  amended  or  successor  version  that  is  substantively  comparable  and  not  materially  more  onerous to comply with) and any current or future regulations thereunder, official interpretations thereof,                                          15  CHAR1\1707916v5 





 






   any  agreement  entered  into  pursuant  to  Section  1471(b)(1)  of  the  Internal  Revenue  Code  and  any  intergovernmental agreements entered into thereunder.         “FDA” means the U.S. Food and Drug Administration and any successor entity.         “FDCA”  means  the  U.S. Food,  Drug  and  Cosmetic Act  of  1938  (or any successor thereto),  as  amended from time to time, and the rules, regulations, guidelines, guidance documents and compliance  policy guides issued or promulgated thereunder.         “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 such day is not a Business Day, the Federal  Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so  published  on  the  next  succeeding  Business  Day.   Notwithstanding  the foregoing,  if  the  Federal  Funds  Rate shall be less than zero, such rate shall be deemed zero for purposes of this Agreement         “Fee  Letter”  means  that  certain  Amended  and  Restated  Fee  Letter  dated  as  of  the  Third  Amendment Effective Date, by and among the Borrower and the Administrative Agent.         “Flood Hazard Property” has the meaning set forth in the definition of “Real Property Security  Documents”.         “Foreign Lender” has the meaning set forth in Section 3.01(c)(ii).         “Foreign Loan Party” means each Loan Party that is not a U.S. Loan Party.         “Foreign Subsidiary” means any Subsidiary that is not a Domestic Subsidiary.         “FRB” means the Board of Governors of the Federal Reserve System of the United States.         “French Guarantor” means any Guarantor that is organized under the laws of France.         “French Loan Party” means any Loan Party that is organized under the laws of France.         “French Transaction Security Documents” has the meaning set forth in Section 10.01(e)(i).         “Fund” means any Person (other than a natural Person) 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 its activities.         “Funded Indebtedness” means, as to any Person at a particular time, without duplication, all of  the following, whether or not included as indebtedness or liabilities in accordance with GAAP:               (a)   all obligations, whether current or long-term, for borrowed money (including the        Obligations)  and  all  obligations  of  such  Person  evidenced  by  bonds,  debentures,  notes,  loan        agreements or other similar instruments;               (b)   all purchase money Indebtedness;               (c)   the  principal  portion  of  all  obligations  under  conditional  sale  or  other  title        retention  agreements  relating  to  property  purchased  by  such  Person  or  any  Subsidiary  thereof                                         16  CHAR1\1707916v5 





 






         (other than customary reservations or retentions of title under agreements with suppliers entered        into in the ordinary course of business);               (d)   all obligations arising under letters of credit (including standby and commercial),        bankers’ acceptances, bank guaranties, surety bonds and similar instruments;               (e)   all obligations in respect of the deferred purchase price of property or services        (other than (x) trade accounts payable in the ordinary course of business and (y) obligations under        deferred compensation plans), including, without limitation, any Earn Out Obligations;               (f)   the Attributable Indebtedness of Capital Leases, Securitization Transactions and        Synthetic Leases;               (g)   all obligations of such Person to purchase, redeem, retire, defease or otherwise        make  any  payment  in  respect  of  any  Disqualified  Capital  Stock  in  such  Person  or  any  other        Person, valued, in the case of a redeemable preferred interest, at the greater of its voluntary or        involuntary liquidation preference plus accrued and unpaid dividends;               (h)   all Funded  Indebtedness  of  others secured  by  (or for which the holder  of  such        Funded Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien        on,  or  payable  out  of  the  proceeds  of  production  from,  property  owned  or  acquired  by  such        Person, whether or not the obligations secured thereby have been assumed;               (i)   all  Guarantees  with  respect  to  Funded  Indebtedness  of  the  types  specified  in        clauses (a) through (h) above of another Person; and               (j)   all Funded Indebtedness of the types referred to in clauses (a) through (i) above        of any partnership or joint venture (other than a joint venture that is itself a corporation or limited        liability company) in which such Person is a general partner or joint venturer, except to the extent        that Funded Indebtedness is expressly made non-recourse to such Person.   For purposes hereof, the amount of any direct obligation arising under letters of credit (including standby  and commercial), bankers’ acceptances, bank guaranties, surety bonds and similar instruments shall be the  maximum amount available to be drawn thereunder.         “Funding  Date”  means  the  date  on  which  the  conditions  set  forth  in  Section  5.02  have  been  satisfied.         “GAAP”  means  generally  accepted  accounting  principles  in  the  United  States  set  forth  in  the  opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified  Public  Accountants  and statements and  pronouncements of the  Financial  Accounting  Standards  Board,  consistently applied and as in effect from time to time.         “German Guarantor” means a Guarantor incorporated in Germany.         “German Loan Party” means any Loan Party which is organized under the laws of Germany.         “German Person” means any Person with its centre of main interest (as that term is used in article  3(1) of the Regulation) in the Federal Republic of Germany.                                          17  CHAR1\1707916v5 





 






         “Governmental Approval” means any consent, authorization, approval, order, license, franchise,  permit,  certification,  accreditation,  registration,  clearance,  exemption,  filing  or  notice  that  is  issued  or  granted by or from (or pursuant to any act of) or required by any Governmental Authority, including any  application or submission related to any of the foregoing.         “Governmental Authority” means the government of the United States, the British Virgin Islands,  the  Kingdom  of  Belgium,  the  Republic  of  Costa  Rica,  the  Federative  Republic  of  Brazil,  the  United  Kingdom, the Federal Republic of Germany, the Republic of France, the Italian Republic, the Kingdom of  Spain or any other nation, or of any political subdivision thereof, whether state, provincial, territorial or  local,  and  any  agency,  authority,  instrumentality,  regulatory  body,  court,  central  bank  or  other  entity  exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or  pertaining  to  government  (including  any  supra-national  bodies  such  as  the  European  Union  or  the  European Central Bank).         “Guarantee” means, as to any Person, (a) any obligation, contingent or otherwise, of such Person  guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation payable  or performable by another Person (the “primary obligor”) in any manner, whether directly or indirectly,  and  including  any  obligation  of  such  Person,  direct  or  indirect,  (i)  to  purchase  or  pay  (or  advance  or  supply funds for the purchase or payment of) such Indebtedness or other obligation, (ii) to purchase or  lease  property,  securities  or  services  for  the  purpose  of  assuring  the  obligee  in  respect  of  such  Indebtedness or other obligation of the payment or performance of such Indebtedness or other obligation,  (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity or  level  of  income  or  cash  flow  of  the  primary  obligor  so  as  to  enable  the  primary  obligor  to  pay  such  Indebtedness or other obligation, or (iv) entered into for the purpose of assuring in any other manner the  obligee in respect of such Indebtedness or other obligation of the payment or performance thereof or to  protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on any assets of  such  Person  securing  any  Indebtedness  or  other  obligation  of  any  other  Person,  whether  or  not  such  Indebtedness or other obligation is assumed by such Person (or any right, contingent or otherwise, of any  holder of such Indebtedness to obtain any such Lien).  The amount of any Guarantee shall be deemed to  be  an  amount  equal  to the  stated  or determinable  amount  of the related  primary  obligation,  or  portion  thereof,  in  respect  of  which  such  Guarantee  is  made  or,  if  not  stated  or  determinable,  the  maximum  reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith.   The term “Guarantee” as a verb has a corresponding meaning.         “Guarantors” means (a) each Subsidiary identified as a “Guarantor” on the signature pages hereto  and  (b)  each  other  Person  that  joins  as  a  Guarantor  pursuant  to  Section  7.12,  together  with  their  successors  and  permitted  assigns;  provided,  that,  in  no  event  shall  any  Excluded  Subsidiary  be  a  Guarantor.         “Guaranty” means the Guaranty made by the Guarantors in favor of the Secured Parties pursuant  to Article IV.         “Hazardous Materials” means all explosive or radioactive substances or wastes and all hazardous  or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates, asbestos or  asbestos-containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all  other substances or wastes of any nature regulated pursuant to any Environmental Law.         “Healthcare  Laws”  means,  collectively,  all  Laws applicable  to  the  business  of any  Loan  Party  regulating the manufacturing, labeling, promotion and provision of and payment for healthcare products,  items and services, including the Health Insurance Portability and Accountability Act of 1996, Section  1128B(b) of the Social Security Act, as amended; 42 U.S.C. § 1320a-7b (Criminal Penalties Involving                                         18  CHAR1\1707916v5 





 






   Medicare or State Health Care Programs), commonly referred to as the “Federal Anti-Kickback Statute;”  Section  1877  of  the  Social  Security  Act,  as  amended  and  similar  state  laws;  42  U.S.C.  §  1395nn  (Limitation on Certain Physician Referrals), commonly referred to as “Stark Statute;” U.S. Federal Food,  Drug, and Cosmetic Act, as amended from time to time (21 U.S.C. § 301 et seq.); all applicable Good  Manufacturing Practice requirements addressed in the FDA’s Quality System Regulation (21 C.F.R. Part  820);  the  Medical  Devices  Regulations,  21  C.F.R.  Part  812,  and  Parts  50,  54,  and  56;  all  applicable  labeling  requirements  addressed  in  the  FDA’s  Device  Labeling  Regulation  (21  C.F.R.  Part  801);  all  regulations  with  respect  to  the  provision  of  Medicare  and  Medicaid  programs  and  services  (42  C.F.R.  Chapter IV et seq.); and all regulations promulgated under or pursuant to any of the foregoing.         “HMT” has the meaning set forth in the definition of “Sanctions”.         “Holders” means, collectively, (a) the Persons set forth on Schedule 1.01(b) to  the Disclosure  Letter, (b) each natural relative who is a rightful heir of any of the foregoing holders described in clause  (a) of this definition, (c) any trust maintained by or for the benefit of any of the foregoing holders and  rightful  heirs  described  in  clauses  (a)  or  (b)  of  this  definition  and  (d)  each  Controlled  Investment  Affiliate of any holder specified in clause (a) of this definition.          “IDE”  means an application,  including an  application  filed  with any  Regulatory  Authority,  for  authorization  to  commence  human  clinical  studies  with  respect  to  any  Device,  including  (a)  an  Investigational Device Exemption as defined in the FDCA or any successor application or procedure filed  with the FDA, (b) an abbreviated Investigational Device Exemption as specified in FDA regulations in 21  C.F.R. § 812.2(b), (c) any equivalent of any of the foregoing pursuant to or under any non-U.S. country or  regulatory jurisdiction, (d) all amendments, variations, extensions and renewals of any of the foregoing  that may be filed with respect thereto and (e) all documents and correspondence with Institutional Review  Boards, whether U.S. or non-U.S., or equivalent.         “Immaterial Subsidiary” means any Subsidiary that, as of any date of determination (a) for the  four  consecutive  fiscal  quarter  period  most  recently  ended  prior  to  such  date  for  which  financial  statements have been delivered to the Administrative Agent pursuant to Sections 7.01(a) or (b)(i), did not  (together with its Subsidiaries) (i) generate Product Revenues in excess of five percent (5%) of Product  Revenues (for the avoidance of doubt, for the Borrower and its Subsidiaries on a consolidated basis) for  such four consecutive fiscal quarter period or (ii) together with all other Immaterial Subsidiaries at such  time, generate Product Revenues in excess of ten percent (10%) of Product Revenues (for the avoidance  of doubt, for the Borrower and its Subsidiaries on a consolidated basis) for such four consecutive fiscal  quarter period and (b) did not have (together with its Subsidiaries) (i) total assets in excess of five percent  (5%) of the consolidated total assets of the Borrower and its Subsidiaries at such date or (ii) together with  all other Immaterial Subsidiaries at such time, total assets in excess of ten percent (10%) of consolidated  total  assets  of the  Borrower and its Subsidiaries at  such  date; provided, that,  notwithstanding  anything  herein  to  the  contrary,  (x)  in  no  event  shall  any  Subsidiary  that  owns  material  Business  IP  Rights  be  deemed  to  be  an  Immaterial  Subsidiary  and  (y)  in  no  event  shall  any  Subsidiary  that  has  become  a  Guarantor in accordance with the terms of this Agreement be deemed to be an Immaterial Subsidiary.         “Indebtedness”  means,  as  to  any  Person  at  a  particular  time,  without  duplication,  all  of  the  following, whether or not included as indebtedness or liabilities in accordance with GAAP:               (a)   all Funded Indebtedness;               (b)   the Swap Termination Value of any Swap Contract;                                          19  CHAR1\1707916v5 





 






               (c)   all Guarantees with respect to outstanding Indebtedness of the types specified in        clauses (a) and (b) above of any other Person; and               (d)   all Indebtedness of the types referred to in clauses (a) through (c) above of any        partnership  or  joint  venture  (other  than  a  joint  venture  that  is  itself  a  corporation  or  limited        liability  company)  in  which  such  Person  or  a  Subsidiary  thereof  is  a  general  partner  or  joint        venturer,  unless  such  Indebtedness  is  expressly  made  non-recourse  to  such  Person  or  such        Subsidiary.         “Indemnitee” has the meaning set forth in Section 11.04(b).         “Information” has the meaning set forth in Section 11.07.         “InsO” has the meaning set forth in Section 9.01(g).         “Interest Payment Date” means, (a) the last day of each March, June, September and December;  provided, that, if any such last day is not a Business Day, the applicable “Interest Payment Date” shall be  the first Business Day immediately preceding such last day of such month; and (b) the Maturity Date.         “Interest Period” means, with respect to any Loan, (a) the period commencing on (and including)  the applicable borrowing date of such Loan and ending on (and including) the last day of the calendar  quarter in which such borrowing date occurs; provided, that, if any such last day is not a Business Day,  the applicable Interest Period shall end on the first Business Day immediately preceding such last day of  such quarter, and (b) thereafter, the period beginning on (and including) the first day following the end of  the preceding Interest Period and ending on the earlier of (and including) (x) the last day of the calendar  quarter following the calendar quarter in which the preceding Interest Period ended; provided, that, if any  such last day is not a Business Day, the applicable Interest Period shall end on the first Business Day  immediately  preceding  such  last  day  of  such  quarter,  and  (y)  the  Maturity  Date.   Notwithstanding  the  foregoing, each Interest Period in effect as of the Second Amendment Effective Date shall end on (and  include)  the  last  day  of  the  calendar  quarter  in  which  the  Second  Amendment  Effective  Date  occurs;  provided, that, if such last day is not a Business Day, each applicable Interest Period shall end on the first  Business Day immediately preceding such last day of such quarter.         “Interest  Rate”  means,  for  any  Interest  Period,  the  sum  of  (a)  the  Applicable  Margin  plus  (b)  Three-Month LIBOR for such Interest Period; provided, that, at all times when a LIBOR Unavailability  Period  shall  exist  and  be  continuing,  the  “Interest  Rate”  shall  equal  the  sum  of  (i)  the  total  of  (x)  the  Applicable Margin minus (y) one percent (1.00%) plus (ii) the Prime Rate.         “Interim  Financial  Statements”  means  the  unaudited  consolidated  financial  statements  of  the  Borrower and its Subsidiaries for the fiscal quarter ended March 31, 2017, including balance sheets and  statements of income or operations, shareholders’ equity and cash flows.         “Internal Revenue Code” means the United States Internal Revenue Code of 1986.         “Internal Revenue Service” means the United States Internal Revenue Service.         “Invention”  means  any  novel,  inventive  or  useful  art,  apparatus,  method,  process,  machine  (including  any  article  or  Device),  manufacture  or  composition  of  matter,  or  any  novel,  inventive  and  useful improvement in any art, method, process, machine (including article or Device), manufacture or  composition of matter.                                          20  CHAR1\1707916v5 





 






         “Investment” means, as to any Person, any direct or indirect acquisition or investment by such  Person, whether by means of (a) the purchase or other acquisition of Equity Interests of another Person,  (b) a loan, advance or capital contribution to, Guarantee or assumption of debt of, or purchase or other  acquisition  of  any  other  debt  or  equity  participation  or  interest  in,  another  Person,  including  any  partnership  or  joint  venture  interest  in  such  other  Person  and  any  arrangement  pursuant  to  which  the  investor Guarantees Indebtedness of such other Person or (c) an Acquisition.  For purposes of covenant  compliance, the amount of any Investment shall be the amount actually invested, without adjustment for  subsequent increases or decreases in the value of such Investment.         “Investment  Documents”  means,  collectively,  the  Loan  Documents,  the  Share  Purchase  Agreement and the ROFR Side Letter.         “Involuntary Disposition” means any loss of, damage to or destruction of, or any condemnation  or other taking for public use of, any property of any Loan Party or any of its Subsidiaries.         “IP  Rights”  means  all  Patents,  Trademarks,  Copyrights  and  Technical  Information,  whether  registered  or  not,  U.S.  or  non-U.S.,  Device  Clearance  Applications,  Product  Agreements,  Product  Authorizations or Regulatory Approvals, including (without limitation) all of the following:               (a)   applications or registrations relating to such IP Rights;               (b)   rights and privileges arising under any applicable Law with respect to such IP        Rights;               (c)   rights to sue for past, present or future infringements of such IP Rights; and               (d)   rights of the same or similar effect or nature in any jurisdiction corresponding        to such IP Rights throughout the world.         “Italian Civil Code” means the Italian civil code, enacted by Royal Decree No. 262 of 16 March  1942, as subsequently amended and supplemented.         “Italian Guarantor” means any Guarantor that is organized under the laws of Italy.         “Italian Law Security Documents” has the meaning set forth in Section 10.01(k)(i).         “Italian Usury Law” has the meaning set forth in Section 4.11(c).           “Joinder Agreement” means a joinder agreement substantially in the form of Exhibit C executed  and delivered by a Subsidiary in accordance with the provisions of Section 7.12.         “JW  Opportunities  Warrant”  means  that  certain  Warrant  Certificate  dated  as  of  September  30,  2016 issued by the Borrower in favor of JW Opportunities Master Fund, Ltd.         “JW Partners Warrant” means that certain Warrant Certificate dated as of September 30, 2016  issued by the Borrower in favor of JW Partners, LP.         “Laws”  means,  collectively,  all  international,  foreign,  federal,  state,  provincial,  territorial  and  local  statutes,  treaties,  rules,  guidelines,  regulations,  ordinances,  codes  and  administrative  or  judicial  precedents  or  authorities,  including  the  interpretation  or  administration  thereof  or  determinations  thereunder by any Governmental Authority charged with the enforcement, interpretation or administration                                         21  CHAR1\1707916v5 





 






   thereof,  and  all  applicable  administrative  orders,  directed  duties,  requests,  licenses,  authorizations  and  permits of, and agreements with, any Governmental Authority, in each case having the force of law.         “Lenders” means each of the Persons identified as a “Lender” on the signature pages hereto and  their respective successors and assigns.         “Lending Office” means, as to any Lender, the office address of such Lender and, as appropriate,  account of such Lender set forth on Schedule 11.02 or such other address or account as such Lender may  from time to time notify the Borrower and the Administrative Agent.         “LIBOR Screen Rate” has the meaning set forth in the definition of “Three-Month LIBOR”.         “LIBOR Successor Rate” has the meaning set forth in Section 3.05.           “LIBOR  Successor  Rate  Conforming  Changes”  means,  with  respect  to  any  proposed  LIBOR  Successor Rate, any conforming changes to the definition of Interest Period, Interest Rate or Three-Month  LIBOR,  the  timing  and  frequency  of  determining  rates  and  making  payments  of  interest  and  other  administrative matters as may be appropriate, in the discretion of the Administrative Agent, to reflect the  adoption of such LIBOR Successor Rate and to permit the administration thereof by the Administrative  Agent  in  a  manner  substantially  consistent  with  market  practice  (or,  if  the  Administrative  Agent  determines that adoption of any portion of such market practice is not administratively feasible or that no  market  practice  for the  administration  of  such  LIBOR  Successor  Rate  exists,  in  such  other manner  of  administration as the Administrative Agent determines in consultation with the Borrower).         “LIBOR Unavailability Period” means a period, commencing on the date on which any of the  events set forth in clauses (a), (b), (c) or (d) below occur and continuing through the earlier to occur of (x)  the date on which no such conditions continue to exist and (y) the date on which a LIBOR Successor Rate  is established:                (a)   adequate and reasonable means do not exist for ascertaining the LIBOR Screen        Rate, including, without limitation, because the LIBOR Screen Rate is not available or published        on a current basis and such circumstances are unlikely to be temporary, or               (b)   the administrator of the LIBOR Screen Rate or a Governmental Authority having        jurisdiction over the Administrative Agent has made a public statement identifying a specific date        after which the LIBOR Screen Rate shall no longer be made available, or used for determining        the interest rate of loans, or               (c)   loans currently being executed, or that include language similar to that contained        in this definition and Section 3.05, are being executed or amended (as applicable) to incorporate        or adopt a new benchmark interest rate to replace the LIBOR Screen Rate, or               (d)   for  any  reason  the  LIBOR  Screen  Rate  with  respect  to  any  Loan  does  not        adequately and fairly reflect the cost to the Lenders of funding such Loan.          “Lien” means any mortgage, land charge, pledge, hypothecation, assignment, security transfer of  assets, deposit arrangement, encumbrance, lien (statutory or other), charge or preference, priority or other  security  interest  or  preferential  arrangement  in  the  nature  of  a  security  interest  of  any  kind  or  nature  whatsoever (including any conditional sale or other title retention agreement, any easement, right of way  or  other  encumbrance  on  title  to  real  property,  and  any  financing  lease  having  substantially  the  same  economic effect as any of the foregoing).                                         22  CHAR1\1707916v5 





 






         “Liquidity” means, as of any date, an amount equal to Unrestricted Cash as of such date.         “Loan” means an extension of credit by a Lender to the Borrower under Article II in the form of a  Term A Loan, a Term B-1 Loan, a Term B-2 Loan, a Term B-3 Loan, a Term B-4 Loan or a Term C  Loan.         “Loan  Documents”  means  this  Agreement,  each  Note,  each  Joinder  Agreement  (or  such  other  documents  as  the  Administrative  Agent  shall  reasonably  request  pursuant  to  Section  7.12  for  such  purpose),  each  Collateral Document, the  Disclosure  Letter,  the  Fee  Letter, any  intercreditor  agreement  entered into in connection with Permitted Senior Revolving Credit Indebtedness, each agreement entered  into  in  accordance  with  the  terms  of  Section  2.14  and  any  other  agreement,  instrument  or  document  designated  by  its  terms  as  a  “Loan  Document”;  provided,  that,  for  the  avoidance  of  doubt,  the  Share  Purchase Agreement, the ROFR Side Letter and any document related to the Share Purchase Agreement  or  the  ROFR  Side  Letter  (for  the  avoidance  of  doubt,  other  than  any  document  described  in  the  text  preceding this proviso), in each case, shall not be “Loan Documents”.         “Loan Notice” means a notice of a Borrowing of Loans pursuant to Section 2.02(a), which shall  be substantially in the form of Exhibit A.         “Loan Parties” means, collectively, the Borrower and each Guarantor.         “Management Determination” has the meaning set forth in Section 4.12(d)(ii).          “Master Agreement” has the meaning set forth in the definition of “Swap Contract”.         “Material Adverse Effect” means (a) a material adverse change in, or a material adverse effect  upon, the business, financial performance or condition, operations (including the financial results thereof),  assets or properties of the Borrower and its Subsidiaries taken as a whole, (b) a material impairment of the  rights and remedies of the Administrative Agent or any Lender under any Loan Document to which it is a  party or a material impairment in the perfection, value or priority of the Administrative Agent’s security  interests  in  the  Collateral,  (c)  an  impairment  of  the  ability  of  any  Loan  Party  to  perform  its  material  obligations  under  any  Loan  Document to  which  it is  a  party  or (d)  a  material adverse  effect  upon the  legality, validity, binding effect or enforceability against any Loan Party of any Loan Document to which  it is a party.         “Material  Contracts”  means  all  (a)  employment  agreements  covering  the  management  of  any  Loan Party or any Subsidiary, (b) collective bargaining agreements or other labor agreements covering  any employees of any Loan Party or any Subsidiary, (c) agreements for managerial, consulting or similar  services to which any Loan Party or any Subsidiary is a party or by which it is bound, (d) agreements  regarding any Loan Party or any Subsidiary, its assets or operations or any investment therein to which  any of its equityholders is a party or by which it is bound, (e) real estate leases, licenses of IP Rights or  other lease or license agreements to which any Loan Party or any Subsidiary is a party, either as lessor or  lessee,  or  as  licensor  or  licensee  (other  than  licenses  arising  from  the  purchase  of  “off  the  shelf”  products),  (f)  customer,  sales,  distribution  or  supply  agreements  to  which  any  Loan  Party  or  any  Subsidiary  is  a  party,  in  each  case  with  respect  to  the  preceding  clauses  (a),  (c),  (d)  and  (e)  requiring  payment  of  more  than  $500,000  in  any  year,  and  with  respect  to  the  preceding  clause  (f),  requiring  payment  of  more  than  $750,000  in  any  year,  (g)  any  other  Contract  to  which  any  Loan  Party  or  any  Subsidiary is a party that (i) relates to any Product or any Product Commercialization and Development  Activity and (ii) is reasonably expected to (A) result in payments or receipts (including royalty, licensing  or similar payments) made to any Loan Party or any of its Subsidiaries in an aggregate amount in excess  of $750,000 in any period of twelve (12) consecutive months or (B) require payments or expenditures                                         23  CHAR1\1707916v5 





 






   (including royalty, licensing or similar payments) made by any Loan Party or any of its Subsidiaries in an  aggregate amount in excess of $750,000 in any period of twelve (12) consecutive months or (h) any other  agreements  or  instruments  to  which  any  Loan  Party  or  any  Subsidiary  is  a  party,  and  the  breach,  nonperformance, termination or cancellation of which, or the failure of which to renew, could reasonably  be expected, either individually or in the aggregate, to have a Material Adverse Effect.         “Material IP Rights” means all Business IP Rights, whether owned or licensed as of the Effective  Date, or acquired, developed or otherwise licensed or obtained by a Loan Party or any of their respective  Subsidiaries  after  the  Effective  Date  (x)  the  loss  of  which  could  reasonably  be  expected,  either  individually or in the aggregate, to have a Material Adverse Effect or (y) that has a fair market value in  excess of $750,000.         “Maturity Date” means September 30, 2025; provided, that, if such date is not a Business Day,  the Maturity Date shall be the first Business Day immediately preceding such date.         “Maximum French Guaranteed Amount” has the meaning set forth in Section 4.09(a)(ii).         “Maximum Rate” has the meaning set forth in Section 11.09.         “Moody’s” means Moody’s Investors Service, Inc. and any successor thereto.         “Mortgages” means the mortgages, deeds of trust or deeds to secure debt that purport to grant to  the Administrative Agent, for the benefit of the Secured Parties, a security interest in the fee interest of  any Loan Party in real property (other than Excluded Property).         “Multiemployer  Plan”  means  any  employee  benefit  plan  of  the  type  described  in  Section  4001(a)(3)  of  ERISA,  to  which  the  Borrower  or  any  ERISA  Affiliate  makes  or  is  obligated  to  make  contributions, or during the preceding five plan years, has made or been obligated to make contributions.         “Multiple  Employer  Plan”  means  any  Plan  which  has  two  or  more  contributing  sponsors  (including the Borrower or any ERISA Affiliate) at least two of whom are not under common control, as  such a plan is described in Section 4064 of ERISA.         “Net  Cash  Proceeds” means the  aggregate cash  or Cash  Equivalents  proceeds  received  by  any  Loan  Party  or any  Subsidiary in  respect of  any  Disposition,  Debt  Issuance,  Involuntary  Disposition  or  Extraordinary  Receipts,  net  of  (a)  reasonable  direct  costs  incurred  in  connection  therewith  (including,  without limitation, legal, accounting and investment banking fees, and sales commissions), (b) taxes paid  or  payable  as  a  result  thereof,  (c)  in  the  case  of  any  Disposition,  the  amount  necessary  to  retire  any  Indebtedness secured by a Permitted Lien (ranking senior to any Lien of the Administrative Agent) on the  related  property  and  (d)  in  the  case  of  any  Extraordinary  Receipt  consisting  of  insurance  and  condemnation proceeds, such proceeds to the extent applied to the repair or replacement of the applicable  property  within  one  (1)  year  after  receipt  thereof;  it  being  understood  that  “Net  Cash  Proceeds”  shall  include, without limitation, any cash or Cash Equivalents received upon the sale or other disposition of  any  non-cash  consideration  received  by  any  Loan  Party  or  any  Subsidiary  in  any  Disposition,  Debt  Issuance, Involuntary Disposition or Extraordinary Receipt.         “Non-Consenting  Lender”  means  any  Lender  that  does  not  approve  any  consent,  waiver  or  amendment that (a) requires the approval of all Lenders or all affected Lenders in accordance with the  terms of Section 11.01 and (b) has been approved by the Required Lenders.                                          24  CHAR1\1707916v5 





 






         “Note” or “Notes” means the Term A Notes, the Term B-1 Notes, the Term B-2 Notes, the Term  B-3 Notes, the Term B-4 Notes or the Term C Notes, individually or collectively, as appropriate.         “Obligations”  means  (a)  all  advances  to,  and  all  debts,  liabilities,  obligations,  covenants  and  duties of, any Loan Party arising under any Loan Document or otherwise with respect to any Loan and (b)  all costs and expenses incurred in connection with enforcement and collection of the foregoing, including  the fees, charges and disbursements of counsel, in each case whether direct or indirect (including those  acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising  and including interest and fees that accrue after the commencement by or against any Loan Party or any  Affiliate thereof pursuant to any proceeding under any Debtor Relief Laws naming such Person as the  debtor  in  such  proceeding,  regardless  of  whether  such  interest  and  fees  are  allowed  claims  in  such  proceeding.         “OFAC”  means  the  Office  of  Foreign  Assets  Control  of  the  United  States  Department  of  the  Treasury.         “Organization Documents” means, (a) with respect to any corporation, the certificate or articles  of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any  non-U.S. jurisdiction), (b) with respect to any BVI business company, the certificate of incorporation and  the memorandum and  articles of  association  of  such company, (c)  with  respect to  any  limited liability  company,  the  certificate  or  articles  of  formation  or  organization  and  operating  agreement  or  limited  liability  company  agreement  (or  equivalent  or  comparable  documents  with  respect  to  any  non-U.S.  jurisdiction), and (d) with respect to any partnership, joint venture, trust or other form of business entity,  the  partnership,  joint  venture  or  other  applicable  agreement  of  formation  or  organization  and  any  agreement,  instrument,  filing  or  notice  with  respect  thereto  filed  in  connection  with  its  formation  or  organization  with  the  applicable  Governmental  Authority  in  the  jurisdiction  of  its  formation  or  organization and, if applicable, any certificate or articles of formation or organization of such entity.         “Outstanding Amount” means with respect to any Loans on any date, the aggregate outstanding  principal  amount  thereof  after  giving  effect  to  any  borrowings  and  prepayments  or  repayments  of  any  Loans occurring on such date.         “Parallel Debt” has the meaning set forth in Section 11.21.         “Participant” has the meaning set forth in Section 11.06(d).         “Patents” means,  collectively,  all  patents  and  all  patent applications  and  registrations  (whether  issued, established  or  registered  or  recorded  in  the  United  States  or  any  other  country  or  any  political  subdivision thereof) and all tangible embodiments of the foregoing, together with any and all (a) rights  and privileges arising under applicable Law and international treaties and conventions with respect to the  use  of  any  patents,  (b)  Inventions  and  improvements  described  and  claimed  therein,  (c)  reissues,  divisions, continuations, renewals, extensions and continuations-in-part thereof and amendments thereto,  (d) income, fees, royalties, damages, claims and payments now or hereafter due and/or payable thereunder  and  with  respect  thereto  including  damages  and  payments  for  past,  present  or  future  infringements  thereof,  (e) rights  corresponding thereto throughout the  world and (f)  rights to sue for  past,  present  or  future infringements thereof.         “PBGC” means the Pension Benefit Guaranty Corporation or any successor thereto.         “Pension  Funding Rules” means  the  rules of the  Internal  Revenue  Code  and ERISA  regarding  minimum  required  contributions  (including  any  installment  payment  thereof)  to  Pension  Plans  and  set                                         25  CHAR1\1707916v5 





 






   forth in Sections 412, 430, 431, 432 and 436 of the Internal Revenue Code and Sections 302, 303, 304  and 305 of ERISA.         “Pension Plan” means any employee pension benefit plan (including a Multiple Employer Plan or  a Multiemployer Plan) that is maintained or is contributed to by the Borrower and any ERISA Affiliate  and is either covered by Title IV of ERISA or is subject to minimum funding standards under Section 412  of the Internal Revenue Code.         “Perceptive  Warrant”  means  that  certain  Warrant  Certificate  dated  as  of  September  30,  2016  issued by the Borrower in favor of Perceptive Credit Holdings, LP.         “Permitted  Acquisition”  means  an  Investment  consisting  of  an  Acquisition  by  a  Loan  Party  whether by purchase, merger or otherwise (whether in one or a series of related transactions); provided,  that:               (a)   immediately  prior  to,  and  after  giving  effect  thereto,  no  Default  or  Event  of        Default  shall  have  occurred  and  be  continuing  or  would  reasonably  be  expected  to  result        therefrom;               (b)   all  transactions  in  connection  therewith  shall  be  consummated,  in  all  material        respects,  in  accordance  with  all  applicable  Law  and  in  conformity  with  all  applicable        governmental, shareholder and third party consents and approvals;               (c)   in  the  case  of  an  acquisition  of  Equity  Interests  of  another  Person,  all  of  such        Equity  Interests  shall be owned  one  hundred  percent  (100%)  by  such  Loan  Party  or  a  Wholly        Owned Subsidiary of such Loan Party, and such Loan Party shall take, or cause to be taken, each        of the actions set forth in Section 7.12 and Section 7.14, if applicable, within the applicable time        periods set forth therein;               (d)   in  the  case  of  the  Acquisition  of assets,  all  assets  acquired  shall  be owned by a        Loan Party and such Loan Party shall take, or cause to be taken, within the time periods set forth in        Section  7.14  and/or  in  the  Collateral  Documents,  all  necessary  actions  to  comply  with  Section        7.14(b);               (e)   such acquired Person (in the case of an Acquisition of Equity Interests) or assets (in        the case of an Acquisition of assets, a Product or a line of business or division) (i) shall be engaged        or used, as the case may be, in (A) a similar or reasonably related business or line of business or (B)        a  business  or  line  of  business  that  is  reasonably  related  or  similar  to  those  in  which  the  Loan        Parties and their respective Subsidiaries are engaged as of the Effective Date or (ii) shall have a        reasonably related or similar customer base as the Loan Parties and their respective Subsidiaries;               (f)   on  a Pro  Forma Basis  after  giving  effect to such  Acquisition, the Loan  Parties        and their respective Subsidiaries shall be in compliance with the financial covenants set forth in        Sections 8.16 and 8.17 as of the last day of the four fiscal quarter period most recently ended for        which financial statements have been delivered to the Administrative Agent pursuant to Section        7.01(a) or (b)(i);               (g)   in the case of an Acquisition of the Equity Interests of another Person, the Board        of Directors of such other Person shall have duly approved such Acquisition;                                          26  CHAR1\1707916v5 





 






               (h)   the  purchase  price  (or  equivalent  consideration)  for  such  Acquisition  shall  be        paid only in cash or Qualified Capital Stock of the Borrower and (i) to the extent such purchase        price is paid in cash, when taken together with all other Acquisitions consummated or effected for        cash consideration since the Effective Date, does not exceed $5,000,000 in the aggregate, or (ii)        to the extent such purchase price is paid in Qualified Capital Stock of the Borrower, when taken        together  with  all  other  Acquisitions  consummated  or  effected  for  Qualified  Capital  Stock        consideration  since  the  Effective  Date,  does  not  exceed  the  fair  market  value  of  $10,000,000        (with fair market value being determined in good faith by the Borrower’s Board of Directors at        the time of the applicable Acquisition) in the aggregate; and               (i)   the Loan Parties shall have provided the Administrative Agent with at least ten        (10)  Business  Days’  prior  written  notice  of  any  such  Acquisition,  together  with  summaries,        prepared in reasonable detail, of all due diligence conducted by or on behalf of the Loan Parties        or their respective Subsidiaries, as applicable, prior to such Acquisition, and the Administrative        Agent  shall  have  received  a  certificate  of  a  Responsible  Officer  of  the  Borrower  (prepared  in        reasonable  detail)  disclosing  the  Borrower’s reasonable,  good  faith  belief  as  to  any  contingent        liabilities  and  prospective research and  development costs  associated  with the Person  or assets        being acquired.         “Permitted Liens” means, at any time, Liens in respect of property of any Loan Party or any of its  Subsidiaries permitted to exist at such time pursuant to the terms of Section 8.01.         “Permitted Refinancing” means, with respect to any Indebtedness, any extensions, renewals and  replacements of such Indebtedness; provided, that, such extension, renewal or replacement (a) shall not  increase the outstanding principal amount of such Indebtedness (other than by the aggregate amount of  any fees and expenses incurred in connection with such refinancing and any reasonable premium paid in  connection  with  such  refinancing),  (b)  contains  terms  relating  to  outstanding  principal  amount,  amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a  whole no less favorable in any material respect to the Loan Parties and their respective Subsidiaries or the  Secured Parties than the terms of any agreement or instrument governing such existing Indebtedness, (c)  shall  have  an  applicable  interest  rate  or  equivalent  yield  which  does  not  exceed  the  interest  rate  or  equivalent yield of the Indebtedness being extended, renewed or replaced, (d) shall not contain any new  requirement  to  grant  any  Lien  or  to  give  any  Guarantee  that  was  not  an  existing  requirement  of  the  Indebtedness being extended, renewed or replaced and (e) after giving effect to such extension, renewal  or replacement, no Default or Event of Default shall have occurred (or would reasonably be expected to  occur) as a result thereof.         “Permitted  Sale  and  Leaseback  Transaction”  means,  with  respect  to  any  Loan  Party  or  any  Subsidiary, any Sale and Leaseback Transaction whereby such Loan Party or such Subsidiary shall sell  fixed assets to any Person and thereafter rent or lease such fixed assets for the same or a similar purpose,  in  each  case,  entered  into  in  connection  with  the  incurrence  by  such  Loan  Party  or  Subsidiary  of  Indebtedness permitted by Section 8.03(e); provided, that, (a) such Sale and Leaseback Transaction shall  be consummated within six (6) months of the purchase of the applicable fixed asset(s) (or, in the case of  any such fixed assets owned by such Loan Party or such Subsidiary as of the Effective Date, within six  (6) months of the Effective Date) and (b) the fixed assets that are the subject of such Sale and Leaseback  Transaction shall be financed with Indebtedness incurred in reliance on Section 8.03(e).         “Permitted  Senior  Revolving  Credit  Documents”  means  each  agreement,  instrument  and  document  entered  into  by  Establishment  Labs  Sociedad  Anonima  in  connection  with  any  Permitted  Senior  Revolving  Credit  Indebtedness,  in  each  case  in  form  and  substance  satisfactory  to  the  Administrative  Agent,  as  the  same  may  be  amended,  modified,  extended,  restated,  replaced  or                                         27  CHAR1\1707916v5 





 






   supplemented from time to time subject to the terms and provisions of the intercreditor agreement entered  into by the Administrative Agent in connection therewith.         “Permitted  Senior  Revolving  Credit  Indebtedness”  means  senior  secured  Indebtedness  of  Establishment Labs Sociedad Anonima which satisfies the following requirements: (a) the Loan Parties  shall  have  delivered  to  the  Administrative  Agent  and  the  Lenders  the  applicable  Permitted  Senior  Revolving Credit Documents prior to incurrence of the Permitted Senior Revolving Credit Indebtedness  thereunder, in each case certified by a Responsible Officer of Establishment Labs Sociedad Anonima, (b)  the Administrative Agent shall have approved the financial institution providing such Permitted Senior  Revolving  Credit  Indebtedness  (each  such  financial  institution,  a  “Permitted  Senior  Revolving  Credit  Lender”)  and  (c)  no  Loan  Party  nor  any  Subsidiary  of  a  Loan  Party  (in  each  case,  other  than  Establishment  Labs  Sociedad  Anonima)  shall  Guarantee,  or  provide  a  Lien  with  respect  to,  such  Indebtedness.         “Permitted  Senior  Revolving  Credit  Lender”  has  the  meaning  set  forth  in  the  definition  of  “Permitted Senior Revolving Credit Indebtedness.”         “Permitted  Senior  Revolving  Credit  Priority  Collateral”  has  the  meaning  set  forth  in  Section  8.03(g).         “Person”  means any  natural  person, corporation, limited liability company,  trust, joint venture,  association, company, partnership, Governmental Authority or other entity.         “Plan” means any employee benefit plan within the meaning of Section 3(3) of ERISA (including  a Pension Plan), and public or private, statutory or in addition to statutory requirements, maintained for  employees of the Borrower or any of its Subsidiaries or any of their respective Affiliates, or any ERISA  Affiliate  or  any  such  Plan  to  which  the  Borrower  or  any  of  its  Subsidiaries  or  any  of  their  respective  Affiliates or any ERISA Affiliate is required to contribute, sponsor, maintain, or contribute on behalf of  any of its employees.         “Pledge  Agreements”  means,  collectively,  the  U.S.  Pledge  Agreements,  the  Brazilian  Share  Pledge Agreement and the Belgian Share Pledge Agreement.         “PMA” has the meaning set forth in the definition of “Device Clearance Application”.         “Prime Rate” means, with respect to any Interest Period, the fluctuating rate per annum equal to  the highest rate published in the “Money Rates” section of The Wall Street Journal as the “prime rate”  then in effect (or, if such source is not available for any reason, such alternative source as determined by  the Administrative Agent) on the first Business Day of such Interest Period; provided, that, the “Prime  Rate” initially shall be set on the first Business Day of the applicable LIBOR Unavailability Period for the  Interest Period in which such LIBOR Unavailability Period commences.         “Pro  Forma  Basis”,  “Pro  Forma  Compliance”  and  “Pro  Forma  Effect”  means,  in  respect  of  a  Specified  Transaction,  that  such  Specified  Transaction  and  the  following  transactions  in  connection  therewith (to the extent applicable) shall be deemed to have occurred as of the first day of the applicable  period  for  the  applicable  covenant  or  requirement:  (a)(i)  with  respect  to  any  Disposition,  Involuntary  Disposition or sale, transfer or other disposition that results in a Person ceasing to be a Subsidiary, income  statement  and  cash  flow  statement  items  (whether  positive  or  negative)  attributable  to  the  Person  or  property  disposed  of shall be  excluded and  (ii)  with respect to  any  Acquisition  or Investment,  income  statement  and  cash  flow  statement  items  (whether  positive  or  negative)  attributable  to  the  Person  or  property acquired shall be included to the extent relating to any period applicable in such calculations to                                         28  CHAR1\1707916v5 





 






   the extent (A) such items are not otherwise included in such income statement items for the Borrower and  is Subsidiaries in accordance with GAAP or in accordance with any defined terms set forth in Section  1.01 and (B) such items are supported by financial statements or other information reasonably satisfactory  to the Administrative Agent, (b) any retirement of Indebtedness and (c) any incurrence or assumption of  Indebtedness by any Loan Party or any Subsidiary (and if such Indebtedness has a floating or formula  rate, such Indebtedness shall have an implied rate of interest for the applicable period for purposes of this  definition  determined  by  utilizing  the  rate  which  is  or  would  be  in  effect  with  respect  to  such  Indebtedness  as  at  the  relevant  date  of  determination);  provided,  that,  Pro  Forma  Basis,  Pro  Forma  Compliance  and  Pro  Forma  Effect  in  respect  of  any  Specified  Transaction  shall  be  calculated  in  a  reasonable and factually supportable manner and certified by a Responsible Officer of the Borrower.         “Product”  means  (a)  those  Devices  set  forth  (and  described  in  reasonable  detail)  on  Schedule  1.01(a) to the Disclosure Letter and (b) any current or future Device developed, manufactured, licensed,  marketed,  sold or  otherwise  commercialized  by any Loan  Party  or  any  Subsidiary, including  any  such  Device currently in development.         “Product  Agreement”  means,  with  respect  to  any  Product,  any  contract,  license,  document,  instrument, interest (equity or otherwise) or the like under which one or more Persons grants or receives  (a) any right, title or interest with respect to any Product Commercialization and Development Activities  in respect of such Product or (b) any right to exclude any other Person from engaging in, or otherwise  restricting any right, title or interest as to, any Product Commercialization and Development Activities  with respect to such Product, including any contract with suppliers, manufacturers, distributors, clinical  research organizations, hospitals, group purchasing organizations, wholesalers, pharmacies or any other  Person related to such entity.         “Product Assets” means, with respect to any Product, (a) any and all rights, title and interest of  any  Loan  Party  or  any  Subsidiary  in  any  assets  relating  to  such  Product  or  any  Product  Commercialization  and  Development  Activities  with  respect  to  such  Product,  (b)  all  Product  Related  Information  with  respect  to  such  Product  or  any  related  Product  Commercialization  and  Development  Activities, (c) any Product Agreement related to such Product or any such Product Commercialization and  Development Activities, (d) any IP Rights, Regulatory Approvals and similar assets with respect to such  Product or any such Product Commercialization and Development Activities and (e) all rights, title and  interests in any other property, tangible or intangible, manifesting or otherwise in respect of such Product  or  any  such  Product  Commercialization  and  Development  Activities,  including,  without  limitation,  inventory, accounts receivable or similar rights to receive money or payment pertaining thereto and all  proceeds of the foregoing.         “Product Authorizations” means any and all Regulatory Approvals (including all applicable IDEs,  PMAs, 510(k)s, Device Clearance Applications, Product Standards, supplements, amendments, pre- and  post-  approvals,  governmental  price  and  reimbursement  approvals  and  approvals  of  applications  for  regulatory exclusivity), clearances, licenses, notifications, registrations or authorizations of or required by  any applicable Regulatory Authority in each case necessary for the ownership, use or commercialization  of any Product or for any Product Commercialization and Development Activities with respect thereto in  any country or jurisdiction, whether U.S. or non-U.S.         “Product  Commercialization  and  Development  Activities”  means,  with  respect  to  any  Product,  any combination of research, development, manufacture, import, use, sale, licensing, importation, storage,  labeling,  marketing,  promotion,  supply,  distribution,  testing,  packaging,  purchasing  or  other  commercialization  activities, receipt  of  payment  in  respect  of  any  of  the foregoing  (including, without  limitation,  in  respect  of  licensing,  royalty  or  similar  payments),  or  any  similar  or  other  activities  the  purpose of which is to commercially exploit such Product.                                         29  CHAR1\1707916v5 





 






         “Product Related Information” means, with respect to any Product, all materials and information  owned  or  possessed  by  the  Loan  Parties  or  any  of  their  respective  Subsidiaries  that  is  necessary  or  required  for  any  Product  Commercialization  and  Development  Activities  relating  to  such  Product,  including (a) brand materials, packaging and other trade dress, customer targeting and other marketing,  promotion  and  sales  materials  and  information,  referral,  customer,  supplier  and  other  contact  lists  and  information,  product,  business,  marketing  and  sales  plans,  research,  studies  and  reports,  sales,  maintenance  and  production  records,  training  materials  and  other  marketing,  sales  and  promotional  information,  (b)  clinical  data,  information  included  or  supporting  any  Product  Authorization  or  other  Regulatory  Approval,  any  regulatory  filings,  updates,  notices  and  correspondence  (including  adverse  event  and  other  pharmacovigilance  and  other  post-marketing  reports  and  information,  etc.),  technical  information,  product  development  and  operational  data  and  records,  and  all  other  documents,  records,  files, data and other information relating to product development, manufacture and use, (c) litigation and  dispute  records,  and  accounting  records,  (d)  all  documents,  records  and  files  relating  to  IP  Rights,  including all correspondence from and to third parties (including IP Rights counsel and patent, trademark  and other intellectual property registries, including the United States Patent and Trademark Office) and  (e) all other information, techniques and know-how necessary or required in connection with the Product  Commercialization and Development Activities for any Product.         “Product  Revenues”  means,  for  any  period,  for  the  Borrower  and  its  Subsidiaries  on  a  consolidated basis, all amounts paid to and received by the Borrower and its Subsidiaries in the ordinary  course of business that, in accordance with GAAP, would be classified as net revenue, excluding upfront  payments, milestones, royalties  and  other similar  one-time  payments  received  by  the  Borrower  and  its  Subsidiaries that are not related to the sale of products or services; provided, that, “Product Revenues”  shall exclude the revenues generated by any Subsidiary to the extent that the declaration or payment of  dividends or similar distributions by that Subsidiary of the income resulting from such revenues is not at  the time permitted by operation of the terms of its Organization Documents or any agreement, instrument,  judgment, decree, order, statute, rule or governmental regulation applicable to that Subsidiary.         “Product Standards” means all safety, quality and other specifications and standards applicable to  any Product, including all medical device and other standards promulgated by Standards Bodies.         “Proposed Term Sheet” has the meaning set forth in Section 2.13(b).         “Proposed Terms” has the meaning set forth in Section 2.13(b).         “Qualified Capital Stock” of any Person means any Equity Interests of such Person that are not  Disqualified Capital Stock.         “Qualified Loan Party” means (a) any BVI Loan Party, (b) any Costa Rican Loan Party, (c) any  U.S. Loan Party or (d) any Loan Party (other than any BVI Loan Party, Costa Rican Loan Party or U.S.  Loan  Party),  that  is  organized  in  a  jurisdiction  (as  designated  by  the  Administrative  Agent  to  the  Borrower in writing): (i) that permits such Loan Party to grant to the Administrative Agent, for the benefit  of the Secured Parties, Liens that are first priority and perfected in substantially all of the assets of such  Loan Party (other than Excluded Property), pursuant to Section 7.14 and the Collateral Documents and  (ii)  the  Laws  of  which,  in  the  reasonable  determination  of  the  Administrative  Agent,  provide  the  Administrative Agent with the ability to enforce such Liens in a manner that is substantially equivalent to  the ability to enforce Liens against a U.S. Loan Party.         “Qualifying  Control  Agreement”  means  an  agreement  among  a  Loan  Party,  a  depository  institution or securities intermediary and the Administrative Agent (or the Trustee), for the benefit of the  Secured Parties, which agreement is in form and substance reasonably satisfactory to the Administrative                                         30  CHAR1\1707916v5 





 






   Agent  and  which  provides  the  Administrative  Agent  (or  the  Trustee,  as  applicable)  with  “control”  (as  such term is used in Article 9 of the Uniform Commercial Code) or dominion over the deposit account(s)  or securities account(s) described therein.          “Real Property Security Documents” means with respect to the fee interest of any Loan Party in  any real property (other than Excluded Property):               (a)   a  fully  executed  and  notarized  Mortgage  encumbering  the  fee  interest  of  such        Loan Party in such real property;               (b)   if requested by the Administrative Agent in its sole discretion, maps or plats of        an as-built survey of the sites of such real property certified to the Administrative Agent and the        title insurance company issuing the policies referred to in clause (c) of this definition in a manner        satisfactory to each of the Administrative Agent and such title insurance company, dated a date        satisfactory  to  each  of  the  Administrative  Agent  and  such  title  insurance  company  by  an        independent professional licensed land surveyor, which maps or plats and the surveys on which        they are based shall be sufficient to delete any standard printed survey exception contained in the        applicable  title  policy  and  be  made  in  accordance  with  the  Minimum  Standard  Detail        Requirements for Land Title Surveys jointly established and adopted by the American Land Title        Association and the American Congress on Surveying and Mapping in 2011 with items 2, 3, 4,        6(b), 7(a), 7(b)(1), 7(c), 8, 9, 10, 11(a), 13, 14, 16,17, 18 and 19 on Table A thereof completed;               (c)   ALTA  mortgagee  title  insurance  policies  issued  by  a  title  insurance  company        acceptable  to  the  Administrative  Agent  with  respect  to  such  real  property,  assuring  the        Administrative  Agent  that  the  Mortgage  covering  such  real  property  creates  a  valid  and        enforceable  first priority mortgage  lien  on  such real property,  free and clear  of  all  defects  and        encumbrances except Permitted Liens, which title insurance policies shall otherwise be in form        and substance satisfactory to the Administrative Agent and shall include such endorsements as        are requested by the Administrative Agent;               (d)   evidence  as  to  (i)  whether  such  real  property  is  in  an  area  designated  by  the        Federal Emergency Management Agency as having special flood or mud slide hazards (a “Flood        Hazard  Property”)  and  (ii)  if  such  real  property  is  a  Flood  Hazard  Property,  (A)  whether  the        community in which such real property is located is participating in the National Flood Insurance        Program,  (B)  the  applicable  Loan  Party’s  written  acknowledgment  of  receipt  of  written        notification from the Administrative Agent (1) as to the fact that such real property is a Flood        Hazard Property and (2) as to whether the community in which each such Flood Hazard Property        is located is participating in the National Flood Insurance Program and (C) copies of insurance        policies  or  certificates  of  insurance  of  the  Borrower  and  its  Subsidiaries  evidencing  flood        insurance satisfactory to the Administrative Agent and naming the Administrative Agent and its        successors and/or assigns as sole loss payee on behalf of the Secured Parties;               (e)   if requested by the Administrative Agent in its sole discretion, an environmental        assessment report, as to such real property, in form and substance and from professional firms        acceptable to the Administrative Agent;               (f)   if  requested  by  the  Administrative  Agent  in  its  sole  discretion,  evidence        reasonably satisfactory to the Administrative Agent that such real property, and the uses of such        real  property,  are  in  compliance  in  all  material  respects  with  all  applicable  zoning  laws  (the        evidence  submitted  as  to  which  should  include  the  zoning  designation  made  for  such  real                                          31  CHAR1\1707916v5 





 






         property, the permitted uses of such real property under such zoning designation and, if available,        zoning requirements as to parking, lot size, ingress, egress and building setbacks); and               (g)   if requested by the Administrative Agent in its sole discretion, an opinion of legal        counsel  to  the  Loan  Party  granting  the  Mortgage  on  such  real  property,  addressed  to  the        Administrative  Agent  and  each  Lender,  in  form  and  substance  reasonably  acceptable  to  the        Administrative Agent.         “Recipient” means the Administrative Agent, any Lender, and any other recipient of any payment  by or on account of any obligation of any Loan Party under any Loan Document.         “Referral Source” has the meaning set forth in Section 6.16(b).         “Register” has the meaning set forth in Section 11.06(c).         “Regulation” means Regulation (EU) 2015/848 of the European Parliament and of the Council of  20 May 2015 on insolvency proceedings.         “Regulatory  Approval”  means  any  Governmental  Approval  relating  to  any  Product  or  any  Product  Commercialization  and  Development  Activities,  including  any  Product  Authorizations  with  respect thereto.         “Regulatory  Authority”  means  any  Governmental  Authority,  whether  U.S.  or  non-U.S.,  that is  concerned  with  or  has  regulatory  or  supervisory  oversight  with  respect  to  any Product  or  any  Product  Commercialization  and  Development  Activities,  including  the  FDA  and  all  equivalent  Governmental  Authorities, whether U.S. or non-U.S.         “Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners,  directors,  officers,  employees,  agents,  trustees,  administrators,  managers,  advisors,  sub-advisors  and  representatives of such Person and of such Person’s Affiliates.         “Relativity  Warrant”  means  that  certain  Warrant  Certificate  dated  as  of  September  30,  2016  issued by the Borrower in favor of Relativity Healthcare Fund, LLC.         “Reportable Event” means any of the events set forth in Section 4043(c) of ERISA, other than  events for which the thirty-day notice period has been waived.         “Required  Lenders”  means,  at  any  time,  Lenders  having  Total  Credit  Exposures  representing  more than fifty percent (50%) of the Total Credit Exposures of all Lenders.  The Total Credit Exposure of  any Defaulting Lender shall be disregarded in determining Required Lenders at any time.         “Responsible Officer” means a director, the chief executive officer, president, chief legal officer,  chief financial officer, treasurer, assistant treasurer or controller of a Loan Party and, solely for purposes  of the delivery of certificates pursuant to Sections 5.02 or 7.12, the secretary or any assistant secretary of  a Loan Party.  Any document delivered hereunder that is signed by a Responsible Officer of a Loan Party  shall  be  conclusively  presumed  to  have  been  authorized  by  all  necessary  corporate,  partnership and/or  other action on the part of such Loan Party and such Responsible Officer shall be conclusively presumed  to have acted on behalf of such Loan Party.         “Restricted” means, when referring to  cash  or  Cash Equivalents  of  the  Loan  Parties, that  such  cash or Cash Equivalents (a) appear (or would be required to appear) as “restricted” on a consolidated                                         32  CHAR1\1707916v5 





 






   balance sheet of the Borrower and its Subsidiaries as determined in accordance with GAAP, or (b) are  subject to any Lien in favor of any Person (other than bankers’ liens and rights of setoff) other than the  Administrative Agent for the benefit of the Secured Parties.         “Restricted Payment” means (a) any dividend or other distribution, direct or indirect, on account  of any shares (or equivalent) of any class of Equity Interests of any Loan Party or any of its Subsidiaries,  now or hereafter outstanding, (b) any redemption, retirement, sinking fund or similar payment, purchase  or  other  acquisition  for  value,  direct  or  indirect,  of  any  shares  (or  equivalent)  of  any  class  of  Equity  Interests of any Loan Party or any of its Subsidiaries, now or hereafter outstanding, (c) any payment made  to retire, or to obtain the surrender of, any outstanding warrants, options or other rights to acquire shares  of any class of Equity Interests of any Loan Party or any of its Subsidiaries, now or hereafter outstanding  and  (d)  any  payment  made  in  cash  to  holders  of  Convertible  Indebtedness  in  excess  of  the  original  principal  (or  notional)  amount  thereof  and  interest  thereon  (and,  to  the  extent  not  permissible  to  be  satisfied  with  shares  of  common  stock,  customary  redemption,  mandatory  conversion  or  similar  premiums, if any).         “ROFR  Side  Letter”  means  that  certain  letter  agreement  dated  as  of  the  Funding  Date  by  and  between the Borrower and the Lenders from time to time party thereto with respect to the purchase of  certain Equity Interests of the Borrower in connection with a sale of the Equity Interests of the Borrower.         “S&P”  means  Standard  &  Poor’s  Financial  Services  LLC,  a  subsidiary  of  The  McGraw-Hill  Companies, Inc., and any successor thereto.         “Sale and Leaseback Transaction” means, with respect to any Loan Party or any Subsidiary, any  arrangement, directly or indirectly, with any Person whereby such Loan Party or such Subsidiary shall  sell or transfer any property used or useful in its business, whether now owned or hereafter acquired, and  thereafter rent or lease such property or other property that it intends to use for substantially the same  purpose or purposes as the property being sold or transferred.         “Sanction(s)”  means  any  sanction  administered  or  enforced  by  the  United  States  government  (including,  without  limitation,  OFAC),  the United Nations  Security  Council,  the  European  Union, Her  Majesty’s Treasury (“HMT”), the Costa Rican Institute of Drugs or other relevant sanctions authority.         “SEC”  means  the  Securities  and  Exchange  Commission,  or  any  Governmental  Authority  succeeding to any of its principal functions.         “Second Amendment Effective Date” means June 15, 2018.         “Secured Obligor” has the meaning set forth in Section 4.12(b).         “Secured  Parties”  means,  collectively,  the  Administrative  Agent,  the  Lenders  and  the  Indemnitees.         “Securities Act” means the Securities Act of 1933.         “Securitization  Transaction”  means,  with  respect  to  any  Person,  any  financing  transaction  or  series of financing transactions (including factoring arrangements) pursuant to which such Person or any  Subsidiary of such Person may sell, convey or otherwise transfer, or grant a security interest in, accounts,  payments,  receivables,  rights  to  future  lease  payments  or  residuals  or  similar  rights  to  payment  to  a  special purpose subsidiary or affiliate of such Person.                                          33  CHAR1\1707916v5 





 






         “Security Agent” has the meaning set forth in Section 10.01(k)(i).         “Security  Agreements”  means,  collectively,  the  U.S. Security  Agreement,  the  U.S.  IP  Security  Agreement, the U.S. Deposit Account Security Agreement, the Belgian Receivables Pledge Agreement,  Brazilian  Receivables  Pledge  Agreement,  the  Costa  Rican  IP  Security  Agreement,  the  Costa  Rican  Security Trust Agreement and the French Transaction Security Documents.         “Share Purchase Agreement” means that certain Series F Share Purchase Agreement dated as of  the Funding Date by and between the Borrower and the Lenders.         “Solvent” or “Solvency” means, with respect to (a) any BVI Loan Party as of a particular date,  that on such date such BVI Loan Party is “solvent” as such term is determined under Section 8 of the  Insolvency Act, 2003 of the British Virgin Islands and (b) any Person (including, for the avoidance of  doubt, any BVI Loan Party) as of a particular date, that on such date (i) such Person is able to pay its  debts and other liabilities, contingent obligations and other commitments as they mature in the ordinary  course of business, (ii) such Person does not intend to, and does not believe that it will, incur debts or  liabilities beyond such Person’s ability to pay as such debts and liabilities mature in their ordinary course,  (iii) such Person is not engaged in a business or a transaction, and is not about to engage in a business or a  transaction, for which such Person’s property would constitute unreasonably small capital after giving due  consideration to the prevailing practice in the industry in which such Person is engaged or is to engage,  (iv) the fair value of the property of such Person is greater than the total amount of liabilities, including,  without limitation, contingent liabilities, of such Person and (v) the present fair salable value of the assets  of  such  Person  is  not  less  than  the  amount  that  will  be  required  to  pay  the  probable  liability  of  such  Person  on  its  debts  as  they  become  absolute  and  matured.   In  computing  the  amount  of  contingent  liabilities at any time, it is intended that such liabilities will be computed at the amount which, in light of  all  the  facts  and  circumstances  existing  at  such  time,  represents  the  amount  that  can  reasonably  be  expected to become an actual or matured liability.         “Spanish  Civil  Procedural  Law”  means  the  Spanish  Law  1/2000,  of  7  January,  on  Civil  Procedural Act (Ley de Enjuiciamiento Civil), as amended from time to time.         “Spanish Companies Law” means Spanish Royal Legislative Decree 1/2010, of 2 July, approving  the Spanish Capital Companies Law (Ley de Sociedades de Capital), as amended from time to time.         “Spanish Guarantor” means a Guarantor incorporated in Spain.         “Spanish  Insolvency  Law”  means  the  Spanish  Law  22/2003,  of  9  July,  on  Insolvency  (Ley  Concursal) as amended or restated from time to time.         “Spanish  Public  Document”  means  a  documento  público,  being  an  escritura pública,  póliza  or  efecto intervenido por fedatario público.         “Specified Cure Contribution” has the meaning set forth in Section 8.16(b)(i).         “Specified  Deposit  Account”  has  the  meaning  set  forth  in  the  U.S.  Deposit  Account  Security  Agreement.         “Specified Transaction” means (a) any Acquisition, any Disposition, any sale, transfer or other  disposition  that  results  in  a  Person  ceasing  to  be  a  Subsidiary,  any  Involuntary  Disposition,  or  any  Investment  that  results  in  a  Person  becoming  a  Subsidiary,  in  each  case,  whether  by  merger,  amalgamation,  consolidation  or  otherwise  or  any  incurrence  or  repayment  of  Indebtedness  or  (b)  any                                         34  CHAR1\1707916v5 





 






   other  event  that  by  the  terms  of  the  Loan  Documents  requires  Pro  Forma  Compliance  with  a  test  or  covenant, calculation as to Pro Forma Effect with respect to a test or covenant or requires such test or  covenant to be calculated on a Pro Forma Basis.         “Standard Bodies” means applicable organizations that create, sponsor or maintain safety, quality  or other standards, including ISO, ANSI, CEN and SCC.         “Subsidiary”  of  a  Person  means  a  corporation,  partnership,  joint  venture,  limited  liability  company  or  other  business  entity  of  which  a  majority  of  the  shares  of  Voting  Stock  is  at  the  time  beneficially owned, or the management of which is otherwise controlled, directly, or indirectly through  one or more intermediaries, or both, by such Person.  Unless otherwise specified, all references herein to a  “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of the Borrower.         “Swap  Contract”  means  (a)  any  and  all  rate  swap  transactions,  basis  swaps,  credit  derivative  transactions,  forward  rate  transactions,  commodity  swaps,  commodity  options,  forward  commodity  contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or  forward  bond  or forward bond  price  or forward  bond  index  transactions, interest rate  options, forward  foreign  exchange  transactions,  cap  transactions,  floor  transactions,  collar  transactions,  currency  swap  transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar  transactions or any combination of any of the foregoing (including any options to enter into any of the  foregoing), whether or not any such transaction is governed by or subject to any master agreement, and  (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and  conditions of, or governed by, any form of master agreement published by the International Swaps and  Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master  agreement  (any  such  master  agreement,  together  with  any  related  schedules,  a  “Master  Agreement”),  including any such obligations or liabilities under any Master Agreement; provided, that, the term “Swap  Contract” shall not include (i) phantom stock, stock option plans or similar plans providing for payments  only on account of services provided by current or former directors, officers, employees or consultants of  the  Borrower  or  its  Subsidiaries  or  (ii)  any  option  or  warrant  agreement  for  the  purchase  of  Equity  Interests of the Borrower.         “Swap Termination Value” means, in respect of any one or more Swap Contracts, after taking  into account the effect of any legally enforceable netting agreement relating to such Swap Contracts, (a)  for  any  date  on  or  after  the  date  such  Swap  Contracts  have  been  closed  out  and  termination  value(s)  determined  in  accordance  therewith,  such  termination  value(s)  and  (b)  for  any  date  prior  to  the  date  referenced  in  clause  (a),  the  amount(s)  determined  as  the  mark-to-market  value(s)  for  such  Swap  Contracts,  as  determined  based  upon  one  or  more  mid-market  or  other  readily  available  quotations  provided by any recognized dealer in such Swap Contracts (which may include a Lender or any Affiliate  of a Lender).         “Synthetic Lease” means any synthetic lease, tax retention operating lease, off-balance sheet loan  or  similar  off-balance  sheet  financing  arrangement  whereby  the  arrangement  is  considered  borrowed  money indebtedness for tax purposes but is classified as an operating lease or does not otherwise appear  on a balance sheet under GAAP.         “Taxes” has the meaning set forth in Section 3.01(a).         “Technical Information” means all trade secrets and other proprietary or confidential information,  public  information,  non-proprietary  know-how,  any  information  of  a  scientific,  technical  or  business  nature in any form or medium, standards and specifications, conceptions, ideas, innovations, discoveries,  Inventions, invention disclosures, all documented research, developmental, demonstration or engineering                                         35  CHAR1\1707916v5 





 






   work  and  all  other  information,  data,  plans,  specifications,  reports,  summaries,  experimental  data,  manuals,  models,  samples,  know-how,  technical  information,  systems,  methodologies,  computer  programs, information technology and any other information.         “Term A Borrowing” means a borrowing consisting of simultaneous Term A Loans made by each  of the Term A Lenders pursuant to Section 2.01(a).         “Term A Commitment” means, as to each Term A Lender, its obligation to make a Term A Loan  to  the  Borrower  pursuant  to  Section  2.01(a),  in  the  principal  amount  set  forth  opposite  such  Lender’s  name on Schedule 2.01. The aggregate principal amount of the Term A Commitments of all of the Term  A Lenders as in effect on the Effective Date is THIRTY MILLION DOLLARS ($30,000,000).         “Term A Facility” means, at any time, (a) on or prior to the Funding Date, the aggregate amount  of the Term A Commitments at such time and (b) thereafter, the aggregate Outstanding Amount of the  Term A Loans of all Term A Lenders outstanding at such time.         “Term A Lender” means (a) at any time on or prior to the Funding Date, any Lender that has a  Term A Commitment at such time and (b) at any time after the Funding Date, any Lender that holds one  or more Term A Loans at such time.         “Term A Loan” means an advance made by any Term A Lender under the Term A Facility.         “Term A Note” has the meaning set forth in Section 2.09.         “Term B-1 Availability Period” means the period from and after October 31, 2017 (or such earlier  date as may be agreed to by the Administrative Agent in its sole discretion) to the earliest of (a) June 30,  2019, (b) the date of termination of the Term B-1 Commitments pursuant to Section 2.04 and (c) the date  of termination of the Term B-1 Commitments pursuant to Section 9.02.         “Term B-1 Borrowing” means a borrowing consisting of simultaneous Term B-1 Loans made by  each of the Term B-1 Lenders pursuant to Section 2.01(b)(i).         “Term B-1 Commitment” means, as to each Term B-1 Lender, its obligation to make a Term B-1  Loan  to  the  Borrower  pursuant  to  Section  2.01(b)(i),  in  the  principal  amount  set  forth  opposite  such  Lender’s name on Schedule 2.01. The aggregate principal amount of the Term B-1 Commitments of all of  the Term B-1 Lenders as in effect on the Effective Date is FIVE MILLION DOLLARS ($5,000,000).         “Term B-1 Facility” means, at any time, (a) on or prior to the funding of the Term B-1 Loans, the  aggregate  amount  of  the  Term  B-1  Commitments  at  such  time  and  (b) thereafter,  the  aggregate  Outstanding Amount of the Term B-1 Loans of all Term B-1 Lenders outstanding at such time.         “Term B-1 Lender” means (a) at any time on or prior to the funding of the Term B-1 Loans, any  Lender that has a Term B-1 Commitment at such time and (b) at any time after the funding of the Term  B-1 Loans, any Lender that holds one or more Term B-1 Loans at such time.         “Term B-1 Loan” means an advance made by any Term B-1 Lender under the Term B-1 Facility.         “Term B-1 Note” has the meaning set forth in Section 2.09.                                          36  CHAR1\1707916v5 





 






         “Term B-2 Availability Period” means the period from and after the Funding Date to the earliest  of (a) June 30, 2019, (b) the date of termination of the Term B-2 Commitments pursuant to Section 2.04  and (c) the date of termination of the Term B-2 Commitments pursuant to Section 9.02.         “Term B-2 Borrowing” means a borrowing consisting of simultaneous Term B-2 Loans made by  each of the Term B-2 Lenders pursuant to Section 2.01(b)(ii).         “Term B-2 Commitment” means, as to each Term B-2 Lender, its obligation to make a Term B-2  Loan  to  the  Borrower  pursuant  to  Section  2.01(b)(ii),  in  the  principal  amount  set  forth  opposite  such  Lender’s name on Schedule 2.01. The aggregate principal amount of the Term B-2 Commitments of all of  the Term B-2 Lenders as in effect on the Effective Date is FIVE MILLION DOLLARS ($5,000,000).         “Term B-2 Facility” means, at any time, (a) on or prior to the funding of the Term B-2 Loans, the  aggregate  amount  of  the  Term  B-2  Commitments  at  such  time  and  (b) thereafter,  the  aggregate  Outstanding Amount of the Term B-2 Loans of all Term B-2 Lenders outstanding at such time.         “Term B-2 Lender” means (a) at any time on or prior to the funding of the Term B-2 Loans, any  Lender that has a Term B-2 Commitment at such time and (b) at any time after the funding of the Term  B-2 Loans, any Lender that holds one or more Term B-2 Loans at such time.         “Term B-2 Loan” means an advance made by any Term B-2 Lender under the Term B-2 Facility.         “Term B-2 Note” has the meaning set forth in Section 2.09.         “Term B-3 Availability Period” means the period from and after the Funding Date to the earliest  of (a) September 30, 2019, (b) the date of termination of the Term B-3 Commitments pursuant to Section  2.04 and (c) the date of termination of the Term B-3 Commitments pursuant to Section 9.02.         “Term B-3 Borrowing” means a borrowing consisting of simultaneous Term B-3 Loans made by  each of the Term B-3 Lenders pursuant to Section 2.01(b)(iii).         “Term B-3 Commitment” means, as to each Term B-3 Lender, its obligation to make a Term B-3  Loan  to  the  Borrower  pursuant  to  Section  2.01(b)(iii),  in  the  principal  amount set  forth  opposite  such  Lender’s name on Schedule 2.01. The aggregate principal amount of the Term B-3 Commitments of all of  the Term B-3 Lenders as in effect on the Third Amendment Effective Date is TEN MILLION DOLLARS  ($10,000,000).         “Term B-3 Facility” means, at any time, (a) on or prior to the funding of the Term B-3 Loans, the  aggregate  amount  of  the  Term  B-3  Commitments  at  such  time  and  (b) thereafter,  the  aggregate  Outstanding Amount of the Term B-3 Loans of all Term B-3 Lenders outstanding at such time.         “Term B-3 Lender” means (a) at any time on or prior to the funding of the Term B-3 Loans, any  Lender that has a Term B-3 Commitment at such time and (b) at any time after the funding of the Term  B-3 Loans, any Lender that holds one or more Term B-3 Loans at such time.         “Term B-3 Loan” means an advance made by any Term B-3 Lender under the Term B-3 Facility.         “Term B-3 Note” has the meaning set forth in Section 2.09.         “Term B-4 Availability Period” means the period from and after the Third Amendment Effective  Date to the earliest of (a) December 31, 2019, (b) the date of termination of the Term B-4 Commitments                                         37  CHAR1\1707916v5 





 






   pursuant  to  Section  2.04  and  (c) the  date  of  termination  of  the  Term  B-4  Commitments  pursuant  to  Section 9.02.         “Term B-4 Borrowing” means a borrowing consisting of simultaneous Term B-4 Loans made by  each of the Term B-4 Lenders pursuant to Section 2.01(b)(iv).         “Term B-4 Commitment” means, as to each Term B-4 Lender, its obligation to make a Term B-4  Loan  to  the  Borrower  pursuant  to  Section  2.01(b)(iv),  in  the  principal  amount  set  forth  opposite  such  Lender’s name on Schedule 2.01. The aggregate principal amount of the Term B-4 Commitments of all of  the  Term  B-4  Lenders  as  in  effect  on  the  Third  Amendment  Effective  Date  is  FIFTEEN  MILLION  DOLLARS ($15,000,000).         “Term B-4 Facility” means, at any time, (a) on or prior to the funding of the Term B-4 Loans, the  aggregate  amount  of  the  Term  B-4  Commitments  at  such  time  and  (b) thereafter,  the  aggregate  Outstanding Amount of the Term B-4 Loans of all Term B-4 Lenders outstanding at such time.         “Term B-4 Lender” means (a) at any time on or prior to the funding of the Term B-4 Loans, any  Lender that has a Term B-4 Commitment at such time and (b) at any time after the funding of the Term  B-4 Loans, any Lender that holds one or more Term B-4 Loans at such time.         “Term B-4 Loan” means an advance made by any Term B-4 Lender under the Term B-4 Facility.         “Term B-4 Note” has the meaning set forth in Section 2.09.         “Term  C  Availability  Period”  means  the  period  from  and  after  the  institution  of  the  Term  C  Commitments  pursuant  to  Section  2.14  to  the  earliest  of  (a) December  31,  2020,  (b)  the  date  of  termination of the Term C Commitments pursuant to Section 2.04 and (c) the date of termination of the  Term C Commitments pursuant to Section 9.02.         “Term C Borrowing” means a borrowing consisting of simultaneous Term C Loans made by each  of the Term C Lenders pursuant to Section 2.01(c).         “Term C Commitment” means, as to each Term C Lender, its obligation to make Term C Loans  to  the  Borrower  pursuant  to  Section  2.01(c).   The  aggregate  principal  amount  of  the  Term  C  Commitments  of  all  of  the  Term  C  Lenders  shall  not  exceed  TEN  MILLION  DOLLARS  ($10,000,000.00).         “Term C Facility” means, at any time, (a) on or prior to the funding of the Term C Loans, the  aggregate amount of the Term C Commitments at such time and (b) thereafter, the aggregate Outstanding  Amount of the Term C Loans of all Term C Lenders outstanding at such time.         “Term  C  Lender”  means  (a) at  any  time  at  or  prior  to  the  funding  of  the  Term  C  Loans,  any  Lender that has a Term C Commitment at such time and (b) at any time after the funding of the Term C  Loans, any Lender that holds one or more Term C Loans at such time.         “Term C Loan” means an advance made by any Term C Lender under the Term C Facility.         “Term C Note” has the meaning set forth in Section 2.09.         “Third Amendment Effective Date” means June 17, 2019.                                          38  CHAR1\1707916v5 





 






         “Three-Month LIBOR” means, with respect to any Interest Period, a rate per annum equal to the  greater  of (x)  two and  one-half percent (2.50%) per annum  and (y)  the three-month  London  Interbank  Offered Rate for deposits in Dollars at approximately 11:00 a.m. (London, England time), as determined  by  the  Administrative  Agent  from  the  appropriate  Bloomberg  or  Telerate  page  selected  by  the  Administrative Agent (the “LIBOR Screen Rate”) (or any successor thereto or similar source reasonably  determined  by  the  Administrative  Agent  from  time  to  time),  two  (2)  Business  Days  prior  to  the  first  Business  Day of such  Interest  Period  and rounded up  to the nearest  1/16  of one  percent (1.00%).  The  Administrative Agent’s determination of interest rates shall be determinative in the absence of manifest  error.         “Threshold Amount” means $750,000.         “Total Credit Exposure” means, as to any Lender at any time, the unused Commitments of such  Lender at such time and the Outstanding Amount of all Loans of such Lender at such time.         “Trademarks”  means,  collectively,  all  trademarks  (including  service  marks),  slogans,  logos,  symbols,  certification  marks,  collective  marks,  trade  dress,  uniform  resource  locators  (URL's),  domain  names,  corporate  names  and  trade  names,  whether  statutory  or  common  law,  whether  registered  or  unregistered  and  whether  established  or  registered  in  the  United  States  or  any  other  country  or  any  political  subdivision  thereof,  all  registrations  and  applications  for  the  foregoing  and  all  tangible  embodiments of the foregoing, together with, in each case, the goodwill symbolized thereby and any and  all (a) rights and privileges arising under applicable Law and international treaties and conventions with  respect  to  the  use  of  any  trademarks,  (b)  reissues,  continuations,  extensions  and  renewals  thereof  and  amendments  thereto, (c)  income,  fees,  royalties,  damages  and  payments  now  and  hereafter  due  and/or  payable thereunder and with respect thereto, including damages, claims and payments for past, present or  future infringements thereof, (d) rights corresponding thereto throughout the world and (e) rights to sue  for past, present and future infringements thereof.         “Trustee”  means  Intermanagement  Costa  Rica,  Ltda.,  acting  as  fiduciary  in  the  Costa  Rican  Security Trust Agreement.         “United States” and “U.S.” mean the United States of America.         “Unrestricted  Cash” means,  at  any  time, the aggregate  cash and  Cash  Equivalents of the  Loan  Parties (without duplication) that are not Restricted at such time.         “U.S. Deposit Account Security Agreement” means the U.S. deposit account security agreement  dated as of the Funding Date executed in favor of the Administrative Agent, for the benefit of the Secured  Parties, by Establishment Labs Sociedad Anonima, a Costa Rica corporation, with respect to the Specified  Deposit Account.         “U.S. IP Security Agreement” means the U.S. intellectual property security agreement dated as of  the Funding Date executed in favor of the Administrative Agent, for the benefit of the Secured Parties, by  Establishment  Labs  Sociedad  Anonima,  a  Costa  Rica  corporation,  with  respect  to  its  U.S.  intellectual  property.         “U.S.  Loan  Party”  means  any  Loan  Party  that  is  organized  under the  laws  of any  state  of  the  United States or the District of Columbia.         “U.S.  Pledge  Agreements”  means,  collectively,  (a)  the  U.S.  pledge  agreement  dated  as  of  the  Funding Date executed in favor of the Administrative Agent, for the benefit of the Secured Parties, by                                         39  CHAR1\1707916v5 





 






   each of the U.S. Loan Parties and each of the BVI Loan Parties other than the Borrower and (b) the U.S.  pledge agreement dated as of the Funding Date executed in favor of the Administrative Agent, for the  benefit of the Secured Parties, by the Borrower.         “U.S.  Security  Agreement”  means  the  U.S.  security  agreement  dated  as  of  the  Funding  Date  executed in favor of the Administrative Agent, for the benefit of the Secured Parties, by the U.S. Loan  Parties and the BVI Loan Parties.         “VAT”  mean  a  consumption  or  value-added  tax,  including  any  similar  Tax  which  may  be  imposed in place thereof from time to time.         “Voting Stock”  means, with  respect  to  any  Person,  Equity  Interests issued  by such  Person  the  holders  of  which  are  ordinarily,  in  the  absence  of  contingencies,  entitled  to  vote  for  the  election  of  directors (or persons performing similar functions) of such Person, even though the right so to vote has  been suspended by the happening of such a contingency.         “Wholly Owned Subsidiary” means, as to any Person, (a) any corporation one hundred percent  (100%) of whose Equity Interests is at the time owned by such Person and/or one or more Wholly Owned  Subsidiaries of such Person and (b) any partnership, association, joint venture or other entity in which  such Person and/or one or more Wholly Owned Subsidiaries of such Person owns one hundred percent  (100%) of the Equity Interests at such time (other than, in the case of a Foreign Subsidiary with respect to  the  preceding  clauses  (a)  or  (b),  director’s  qualifying  shares  and/or  other  nominal  amounts  of  shares  required to be held by Persons other than the Borrower and its Subsidiaries under applicable law).  Unless  otherwise  specified,  all  references  herein  to  a  “Wholly  Owned  Subsidiary”  or  to  “Wholly  Owned  Subsidiaries” shall refer to a Wholly Owned Subsidiary or Wholly Owned Subsidiaries of the Borrower.         “Withholding  Agent”  means  any  Loan  Party,  the  Administrative  Agent  and  any  other  Person  required by applicable Law to withhold or deduct amounts from a payment made by or on account of any  obligation of any Loan Party under any Loan Document.         “Write-Down and Conversion Powers” means, with respect to any EEA Resolution Authority, the  write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In  Legislation  for  the  applicable  EEA  Member  Country,  which  write-down  and  conversion  powers  are  described in the EU Bail-In Legislation Schedule.         1.02  Other Interpretive Provisions.         With  reference  to  this  Agreement  and  each  other  Investment  Document,  unless  otherwise  specified herein or in such other Investment Document:               (a)   The  definitions  of  terms  herein  shall  apply  equally  to  the  singular  and  plural        forms of the terms defined.  Whenever the context may require, any pronoun shall include the        corresponding  masculine,  feminine  and  neuter  forms.   The  words  “include,”  “includes”  and        “including” shall be deemed to be followed by the phrase “without limitation.”  The word “will”        shall be construed to have the same meaning and effect as the word “shall.”  Unless the context        requires  otherwise,  (i)  any  definition  of  or  reference  to  any  agreement,  instrument  or  other        document (including the Loan Documents and any Organization Document) shall be construed as        referring  to  such  agreement,  instrument  or  other  document  as  from  time  to  time  amended,        modified,  extended,  restated,  replaced  or  supplemented  from  time  to  time  (subject  to  any        restrictions set forth herein or in any other Investment Document), (ii) any reference herein to any        Person  shall  be  construed  to  include  such  Person’s  successors  and  assigns,  (iii)  the  words                                         40  CHAR1\1707916v5 





 






         “hereto”,  “herein,”  “hereof”  and  “hereunder,”  and  words  of  similar  import  when  used  in  any        Investment Document, shall be construed to refer to such Investment Document in its entirety and        not to any particular provision thereof, (iv) all references in any Investment Document to Articles,        Sections, Preliminary Statements, Exhibits and Schedules shall be construed to refer to Articles        and  Sections  of,  and  Preliminary  Statements,  Exhibits  and  Schedules  to,  the  Investment        Document  in  which  such  references  appear,  (v)  any  reference  to  any  law  shall  include  all        statutory  and  regulatory  provisions  or  determinations  consolidating,  amending,  replacing  or        interpreting such law and any reference to any law or regulation shall, unless otherwise specified,        refer  to  such  law  or  regulation  as  amended,  modified,  extended,  restated,  replaced  or        supplemented from time to time, (vi) the words “asset” and “property” shall be construed to have        the same meaning and effect and to refer to any and all real and personal property and tangible        and intangible assets and properties, including cash, securities, accounts and contract rights and        (vii) the parties hereto have participated jointly in the negotiation and drafting of this Agreement        and  in the  event  an  ambiguity  or question  of intent  or  interpretation  arises,  no  presumption  or        burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of        the provisions of this Agreement.               (b)   In the computation of periods of time from a specified date to a later specified        date, the word “from” means “from and including;” the words “to” and “until” each mean “to but        excluding;” and the word “through” means “to and including.”               (c)   Section headings herein and in the other Investment Documents are included for        convenience  of  reference  only  and  shall  not  affect  the  interpretation  of  this  Agreement  or  any        other Investment Document.         1.03  Accounting Terms.               (a)   Generally.   Except  as  otherwise  specifically  prescribed  herein,  all  accounting        terms not specifically or completely defined herein shall be construed in conformity with, and all        financial data (including financial ratios and other financial calculations) required to be submitted        pursuant to this Agreement shall be prepared in conformity with, GAAP applied on a consistent        basis, as in effect from time to time, applied in a manner consistent with that used in preparing the        Audited  Financial  Statements,  except  as  otherwise  specifically  prescribed  herein;  provided,        however, that, calculations of Attributable Indebtedness under any Synthetic Lease or the implied        interest component of any Synthetic Lease shall be made by the Loan Parties in accordance with        accepted financial practice in the United States and consistent with the terms of such Synthetic        Lease.   Notwithstanding  the  foregoing,  for  purposes  of  determining  compliance  with  any        covenant contained herein, Indebtedness of the Borrower and its Subsidiaries shall be deemed to        be carried at 100% of the outstanding principal amount thereof, and the effects of FASB ASC 825        and  FASB  ASC  470-20  on  financial  liabilities  shall  be  disregarded.   The  parties  hereto        acknowledge and agree that for purposes of all calculations hereunder, the principal amount of        Convertible Indebtedness shall be the outstanding principal (or notional) amount thereof, valued        at par.               (b)   Changes in GAAP.  The Loan Parties will provide a written summary of material        changes  in  GAAP  and  in  the  consistent  application  thereof  with  each  annual  and  quarterly        financial  statement  delivered  in  accordance  with  Section  7.01.   If  at  any  time  any  change  in        GAAP  would  affect  the  computation  of  any  financial  requirement  set  forth  in  any  Loan        Document, and either the Borrower or the Required Lenders shall so request, the Administrative        Agent, the Lenders and the Borrower shall negotiate in good faith to amend such requirement to        preserve the original intent thereof in light of such change in GAAP (subject to the approval of                                         41  CHAR1\1707916v5 





 






         the Required Lenders); provided, that, until so amended, (i) such requirement shall continue to be        computed in accordance with GAAP prior to such change therein and (ii) the Loan Parties shall        provide to the Administrative Agent and the Lenders financial statements and other documents        required under this Agreement or as requested hereunder setting forth a reconciliation between        calculations of such requirement made before and after giving effect to such change in GAAP.         Notwithstanding any other provision contained herein, other than for purposes of the delivery of        financial statements prepared in accordance with GAAP, all terms of an accounting or financial        nature  used  herein  shall  be  construed,  all  calculations  herein  shall  be  made,  and  all  covenants        shall be interpreted without giving effect to any change (whether occurring prior to or after the        date  hereof)  in  accounting  for  leases  pursuant  to  GAAP  resulting  from  the  implementation  of        Financial  Accounting  Standards  Board  ASU  No.  2016-02,  Leases  (Topic  842)  (and,  for  the        avoidance of doubt, (x) the terms “operating lease,” “capital lease” and “Capital Lease” shall be        interpreted  without  giving  effect  to  any  change  in  accounting  for  leases  pursuant  to  GAAP        resulting from the implementation of Financial Accounting Standards Board ASU No. 2016-02,        Leases (Topic 842) and (y) the amount of total assets (or any similar term or calculation) at any        time shall be determined without giving effect to any change in accounting for leases pursuant to        GAAP  resulting  from  the  implementation  of  Financial  Accounting  Standards  Board  ASU  No.        2016-02, Leases (Topic 842), in each case whether or not such lease obligations were in effect        prior to or after such implementation); provided, that, for purposes of this sentence, in connection        with the computation of any amount or ratios referred to herein, the Borrower shall provide to the        Administrative Agent financial statements and other customary documentation as may reasonably        be requested in writing by the Administrative Agent or any Lender to reconcile calculations of        such  amount  or  ratio  with  the  financial  statements  delivered  by  the  Loan  Parties  pursuant  to        Section 7.01(a) or Section 7.01(b)(i).               (c)   Consolidation  of  Variable  Interest  Rate  Entities.   All  references  herein  to        consolidated financial statements of the Borrower and its Subsidiaries or to the determination of        any amount for the Borrower and its Subsidiaries on a consolidated basis or any similar reference        shall,  in  each  case,  be  deemed  to  include  each  variable  interest  entity  that  the  Borrower  is        required  to  consolidate  pursuant  to  FASB  ASC  810  as  if  such  variable  interest  entity  was  a        Subsidiary as defined herein.               (d)   Pro  Forma  Calculations.   Notwithstanding  anything  to  the  contrary  contained        herein, all calculations of the financial covenant set forth in Section 8.16(a) shall be made on a        Pro Forma Basis with respect to all Specified Transactions occurring during the applicable period        to which such calculation relates.         1.04  Times of Day.         Unless otherwise  specified, all  references  herein to times  of  day shall be references to  Eastern  time (daylight or standard, as applicable).         1.05  Belgian Terms.         All references herein in the context of Belgian law or a Belgian Loan Party to:               (a)   a  receiver,  trustee,  custodian,  conservator,  liquidator,  rehabilitator  or  similar        officer  includes  any    curator/curateur, vereffenaar/liquidateur, voorlopig        bewindvoerder/administrateur judiciaire, ondernemingsbemiddelaar/médiateur  d'entreprise,  as        applicable;                                          42  CHAR1\1707916v5 





 






               (b)   a  security  interest  includes  any  mortgage  (hypotheek/hypothèque),  mortgage        mandate  (hypothecair  mandaat/mandat  hypothécair),  pledge  (pand/nantissement),  privilege        (voorrecht/privilège), retention right (eigendomsvoorbehoud/droit de  retention), any  real  surety        (zakelijke zekerheid/sûreté réelle) and any transfer by way of security (overdracht ten titel van        zekerheid/transfert à titre de garantie);               (c)   a person being unable to pay its debts is that person being in a state of cessation        of payments (staking van betaling/cessation de paiements);               (d)   a receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement,        adjustment,  composition  or  other  judicial  proceeding  includes  any gerechtelijke        reorganisatie/réorganisation  judiciaire, vereffening/liquidation, ontbinding/dissolution,        faillissement/faillite, sluiting  van  een  onderneming/fermeture  d'enterprise  and  any  other        concurrence between creditors (samenloop van schuldeisers/concours des créanciers);                (e)   a  writ  or  warrant  of  attachment  or  execution  or  similar  process  includes  any        uitvoerend beslag/saisie exécutoire and bewarend beslag/saisie conservatoire;               (f)   a guaranty refers, only for the purpose of the Guaranty granted by the Belgian        Loan  Parties  pursuant  to  Article  IV,  to  the  Belgian  legal  concept  of  a  guarantee  (“garantie  /        vrijwaring”) and not a surety (“borg / cautionnement”);               (g)   organized under the laws of the Kingdom of Belgium means that such Loan Party        has its  principal place of business (voornaamste  vestiging/établissement  principal) in  Belgium;        and               (h)   Organization  Documents  means  the oprichtingsakte/acte constitutif,        statuten/statuts  and uittreksel van de Kruispuntbank voor Ondernemingen/extrait de la Banque        Carrefour des Entreprises.         1.06  French Terms.         All references herein in the context of French law or a French Loan Party to:               (a)   a  “guarantee”  includes  any  “cautionnement”,  “aval”,  any  “garantie”  which  is        independent from the debt to which it relates and any type of “sûreté personnelle”;                (b)   a “security interest” includes any type of security (sûreté réelle) and transfer by        way of security;                (c)   a  “moratorium”  includes  a  moratorium  under  a mandat  ad  hoc  or conciliation        procedure in  accordance  with  articles  L. 611-3 to  L. 611-16  of the  French Code de  commerce;        and               (d)   a “dissolution” or “reorganization” includes liquidation judiciaire, redressement        judiciaire, sauvegarde, sauvegarde accélérée, sauvegarde financière accélérée, mandat ad hoc or        conciliation proceedings under Livre Six of the French Code de commerce.         1.07  German Terms.         All references herein in the context of German law or a German Loan Party to:                                         43  CHAR1\1707916v5 





 






               (a)   “director”  or  “manager”  includes  any  statutory  legal  representative(s)        (organschaftlicher  Vertreter)  of  a  person,  including  but  not  limited  to,  a  managing  director        (Geschäftsführer) or member of the board of directors (Vorstand);               (b)   “German Civil Code” means the Bürgerliches Gesetzbuch;               (c)   “gross negligence” includes grobe Fahrlässigkeit; and               (d)   “wilful misconduct” includes Vorsatz.         1.08  Spanish Terms.         All references herein in the context of Spanish law or a Spanish Guarantor to:               (a)   “financial assistance” has the meaning stated under:                     (i)   Article  150  of  the  Spanish  Companies  Law  for  a  Spanish  public              company  (Sociedad  Anónima)  or  in  any  other  legal provision  that  may  substitute such              Article  150  or  be  applicable  to  any  Spanish  Guarantor  in  respect  of  such  financial              assistance; or                      (ii)  Article 143 of the Spanish Companies Law for a Spanish limited liability              company  (Sociedad  de  Responsabilidad  Limitada)  or  in  any  other  legal  provision  that              may substitute such Article 143 or be applicable to any Spanish Guarantor in respect of              such financial assistance;               (b)   “insolvency” (concurso or any other equivalent legal proceeding) and any step or        proceeding related to it has the meaning attributed to them under the Spanish Insolvency Law and        “insolvency  proceeding”  includes,  without  limitation,  a declaración  de  concurso,  necessary  or        voluntary  (necesario  o  voluntario)  and  the  filing  of  the  notice  foreseen  in  Article  5  bis  of  the        Spanish Insolvency Law;                (c)   “winding-up,  administration  or  dissolution”  includes,  without  limitation,        disolución, liquidación, or administración concursal or any other similar proceedings;               (d)   “receiver,  administrative  receiver,  administrator”  or  the  like  includes,  without        limitation, administración del concurso or any other person performing the same function;               (e)   “composition,  compromise,  assignment  or  arrangement  with  any  creditor”        includes, without limitation, the celebration of a convenio;                (f)   “person  being unable  to  pay its  debts”  includes  that  person  being in  a  state  of        insolvencia or concurso;               (g)   “matured obligation” includes, without limitation, any crédito líquido, vencido y        exigible; and               (h)   “security  interest”  includes  any  mortgage  (hipoteca),  pledge  (prenda),  and,  in        general,  any  right  in  rem  (garantia  real)  governed  by  Spanish law,  created  for  the  purpose  of        granting security.                                          44  CHAR1\1707916v5 





 






         1.09  Italian Terms.         In each Loan Document, where it relates to a person incorporated or having its centre of main  interests in Italy (for the purposes of Regulation (EU) 2015/848 of 20 May 2015), a reference to:               (a)   a  winding-up,  administration,  liquidation  or  dissolution  includes,  without        limitation, any scioglimento, liquidazione, procedura concorsuale, cessione dei beni ai creditori,        or any other similar proceedings;               (b)   an insolvency proceeding or a proceeding seeking a judgment of insolvency or        bankruptcy or any other relief includes, without limitation, any procedura concorsuale (including        fallimento, liquidazione  giudiziale, concordato  preventivo, concordato fallimentare, accordo di        ristrutturazione dei debiti pursuant to article 182-bis of the Italian Bankruptcy Law, accordo di        ristrutturazione con intermediari finanziari and convenzione di moratoria pursuant to article 182-       septies  of  the  Italian  Bankruptcy  Law, concordato  con  continuità  aziendale  pursuant  to  article        186-bis of the Italian Bankruptcy Law, piano di risanamento pursuant to article 67, paragraph 3        of  the  Italian  Bankruptcy  Law, liquidazione  coatta  amministrativa, amministrazione        straordinaria, amministrazione  straordinaria  delle  grandi  imprese  in  stato  di  insolvenza,        domanda di “pre-concordato” pursuant to article 161, paragraph 6 of the Italian Bankruptcy Law,        any procedura di risanamento or procedura di liquidazione pursuant to Legislative Decree No.        170  of  21 May  2004 and cessione  dei  beni  ai creditori pursuant to  Article 1977  of the  Italian        Civil Code) and any other proceedings or legal concepts similar to the foregoing;               (c)   a  liquidator,  receiver,  administrative  receiver,  administrator  or  other  similar        officer  includes,  without  limitation,  a curatore, commissario  giudiziale, commissario        staordinario, commissario liquidatore or any other person performing the same function of any of        the foregoing;               (d)   a matured obligation includes, without limitation, any credito scaduto, liquido ed        esigibile;               (e)   a lease includes, without limitations, a contratto di locazione, an affitto d'azienda        and an affitto di ramo d’azienda;               (f)   a  security  includes,  without  limitation,  any pegno,  ipoteca,  privilegio  speciale        (including the privilegio speciale created pursuant to Article 46 of the Italian Legislative Decree        No. 385 of 1 September 1993, as amended from time to time), cessione del credito in garanzia,        diritto reale di garanzia and any other garanzia reale or other transactions having the same effect        as any of the foregoing;               (g)   an attachment includes a pignoramento;               (h)   guarantee  includes  without  limitation  a garanzia  autonoma  and contratto        autonomo di garanzia;               (i)   gross  negligence  and  wilful  misconduct  includes,  respectively,  without        limitation, colpa grave and dolo; and               (j)   a right of occupation or right to receive rent includes uso, locazione, usufrutto e        comodato.                                          45  CHAR1\1707916v5 





 






                                     ARTICLE II.                                                                         THE COMMITMENTS         2.01  Commitments.               (a)   Term A Borrowing.  Subject to the terms and conditions set forth herein, each        Term A Lender severally agrees to make a single loan to the Borrower, in Dollars, on the Funding        Date in an aggregate amount not to exceed such Term A Lender’s Term A Commitment.  The        Term A Borrowing shall consist of Term A Loans made simultaneously by the Term A Lenders        in accordance with their respective Term A Commitments.  Term A Borrowings repaid or prepaid        may not be reborrowed.               (b)   Term B-1 Borrowing, Term B-2 Borrowing, Term B-3 Borrowing and Term B-4        Borrowing.                     (i)   Term  B-1  Borrowing.   Subject  to  the  terms  and  conditions  set  forth              herein, each Term B-1 Lender severally agrees to make a single loan to the Borrower, in              Dollars,  at  the  request  of  the  Borrower  on  any  Business  Day  during  the  Term  B-1              Availability Period, in an aggregate amount not to exceed such Term B-1 Lender’s Term              B-1  Commitment;  provided,  that,  the  Administrative  Agent  shall  have  received  (A)  a              Compliance Certificate pursuant to Section 7.02(a) certifying that Product Revenues were              at least $25,000,000 (without giving effect to any Cure Right) for the four consecutive              fiscal quarter period most recently ended prior to the date of the Term B-1 Borrowing for              which financial statements have been delivered to the Administrative Agent pursuant to              Sections 7.01(a) or (b)(i) or (B) on or before the earlier of (1) November 29, 2017 and (2)              the  date  on  which  the  Loan  Parties  deliver  to  the  Administrative  Agent  a  Compliance              Certificate pursuant to Section 7.02(a) for the fiscal quarter ending September 30, 2017, a              certificate of a Responsible Officer of the Borrower certifying that Product Revenues are              projected to have been at least $25,000,000 (without giving effect to any Cure Right) for              the four consecutive fiscal quarter period ending September 30, 2017 based on financial              statements  and  projections  reasonably  satisfactory  to  the  Administrative  Agent.   The              Term B-1 Borrowing shall consist of Term B-1 Loans made simultaneously by the Term              B-1  Lenders  in  accordance  with  their  respective  Term  B-1  Commitments.   Term  B-1              Borrowings repaid or prepaid may not be reborrowed.                     (ii)  Term  B-2  Borrowing.   Subject  to  the  terms  and  conditions  set  forth              herein, each Term B-2 Lender severally agrees to make a single loan to the Borrower, in              Dollars,  at  the  request  of  the  Borrower  on  any  Business  Day  during  the  Term  B-2              Availability Period, in an aggregate amount not to exceed such Term B-2 Lender’s Term              B-2  Commitment;  provided,  that,  (A)  the  Administrative  Agent  shall  have  received  a              Compliance Certificate pursuant to Section 7.02(a) certifying that Product Revenues were              at least $30,000,000 (without giving effect to any Cure Right) for the four consecutive              fiscal quarter period most recently ended prior to the date of the Term B-2 Borrowing for              which financial statements have been delivered to the Administrative Agent pursuant to              Sections 7.01(a) or (b)(i) and (B) the Borrower shall have drawn the full amount of the              Term  B-1  Facility  pursuant  to  Section  2.01(b)(i)  prior  to  the  date  of  the  Term  B-2              Borrowing.   The  Term  B-2  Borrowing  shall  consist  of  Term  B-2  Loans  made              simultaneously by the Term B-2 Lenders in accordance with their respective Term B-2              Commitments.  Term B-2 Borrowings repaid or prepaid may not be reborrowed.                                          46  CHAR1\1707916v5 





 






                     (iii) Term  B-3  Borrowing.   Subject  to  the  terms  and  conditions  set  forth              herein, each Term B-3 Lender severally agrees to make a single loan to the Borrower, in              Dollars,  at  the  request  of  the  Borrower  on  any  Business  Day  during  the  Term  B-3              Availability Period, in an aggregate amount not to exceed such Term B-3 Lender’s Term              B-3 Commitment; provided, that, the Borrower shall have drawn the full amount of the              Term  B-1  Facility  and  Term  B-2  Facility  pursuant  to  Sections  2.01(b)(i)  and  (ii),              respectively,  prior  to  the  date  of the  Term  B-3  Borrowing.   The  Term  B-3  Borrowing              shall  consist  of  Term  B-3  Loans  made  simultaneously  by  the  Term  B-3  Lenders  in              accordance with their respective Term B-3 Commitments.  Term B-3 Borrowings repaid              or prepaid may not be reborrowed.                     (iv)  Term  B-4  Borrowing.   Subject  to  the  terms  and  conditions  set  forth              herein, each Term B-4 Lender severally agrees to make a single loan to the Borrower, in              Dollars,  at  the  request  of  the  Borrower  on  any  Business  Day  during  the  Term  B-4              Availability Period, in an aggregate amount not to exceed such Term B-4 Lender’s Term              B-4 Commitment; provided, that, the Borrower shall have drawn the full amount of the              Term  B-1  Facility,  Term  B-2  Facility  and  Term  B-3  Facility  pursuant  to  Sections              2.01(b)(i), (ii) and (iii), respectively, prior to the date of the Term B-4 Borrowing.  The              Term B-4 Borrowing shall consist of Term B-4 Loans made simultaneously by the Term              B-4  Lenders  in  accordance  with  their  respective  Term  B-4  Commitments.   Term  B-4              Borrowings repaid or prepaid may not be reborrowed.               (c)   Term C Borrowings.  Subject to Section 2.14 and the other terms and conditions        set forth herein, each Term C Lender severally agrees to make a single loan to the Borrower, in        Dollars, during the Term C Availability Period, in an aggregate amount not to exceed such Term        C Lender’s Term C Commitment.  The Term C Borrowing shall consist of Term C Loans made        simultaneously by the Term C Lenders in accordance with their respective Term C Commitments.         Term C Borrowings repaid or prepaid may not be reborrowed.         2.02  Borrowings.               (a)   Each  Borrowing  shall  be made  upon  the  Borrower’s  irrevocable  notice  (in  the        form of a written Loan Notice, appropriately completed and signed by a Responsible Officer of        the Borrower) to the Administrative Agent, which must be given not later than 11:00 a.m. (x) on        the Effective Date in the case of the Term A Borrowing, (y) at least ten (10) Business Days (or        such  shorter  period  as  may  be  agreed to  by the  Administrative  Agent in  its  sole discretion)  in        advance of the requested date of such Borrowing in the case of the Term B-1 Borrowing or (z) at        least fifteen (15) Business Days (or such shorter period as may be agreed to by the Administrative        Agent in its sole discretion) in advance of the requested date of such Borrowing (other than the        Term  A  Borrowing  and  the  Term  B-1  Borrowing).   Each  Loan  Notice  shall  specify  (i)  the        requested  date  of such  Borrowing  (which  shall  be a Business  Day), (ii) the  applicable Facility        under which the Borrower is requesting such Borrowing and (iii) the principal amount of Loans        to be borrowed.  The Borrowing of Term A Loans shall be in an aggregate principal amount of        $30,000,000.  The Borrowing of Term B-1 Loans shall be in an aggregate principal amount of        $5,000,000.   The  Borrowing  of  Term  B-2  Loans  shall  be  in  an  aggregate  principal  amount  of        $5,000,000.   The  Borrowing  of  Term  B-3  Loans  shall  be  in  an  aggregate  principal  amount  of        $10,000,000.  The Borrowing of Term B-4 Loans shall be in an aggregate principal amount of        $15,000,000.  The  Borrowing  of  Term  C  Loans  shall  be  in  an  aggregate  principal  amount  of        $10,000,000.                                          47  CHAR1\1707916v5 





 






               (b)   Following receipt of a Loan Notice for a Facility, the Administrative Agent shall        promptly notify each Appropriate Lender of the amount of its Applicable Percentage under such        Facility of the applicable Loans.  Each Appropriate Lender shall make the amount of its Loan        available  to  the  Administrative  Agent  in  immediately  available  funds  at  the  Administrative        Agent’s  Office  not  later  than  1:00  p.m.  on  the  Business  Day  specified  in  the  applicable  Loan        Notice.  Upon satisfaction of the applicable conditions set forth in Section 5.03 and Section 5.04        (and,  if  such  Borrowing  is  the  initial  Borrowing,  Section  5.01  and  Section  5.02),  the        Administrative Agent shall make all funds so received available to the Borrower in like funds as        received  by  the  Administrative  Agent  by  wire  transfer  of  such  funds  in  accordance  with        instructions provided to (and acceptable to) the Administrative Agent by the Borrower.         2.03  Prepayments.               (a)   Voluntary Prepayments.  Subject to the payment of any prepayment premium as        required under Section 2.03(d) and any other fees or amounts payable hereunder at such time, the        Borrower may, upon notice from the Borrower to the Administrative Agent, voluntarily prepay        the Loans, in whole or in part; provided, that, (i) such notice must be received not later than 11:00        a.m. three (3) Business Days prior to the date of prepayment, (ii) any such prepayment shall only        be made on an Interest Payment Date (it being understood that the requirement set forth in this        sub-clause  (ii)  shall  not  be  applicable  to  any  voluntary  prepayment  in  full  of  the  aggregate        Outstanding Amount of the Loans in connection with a Facility Termination Date) and (iii) any        such prepayment shall be in a principal amount of $5,000,000 or a whole multiple of $1,000,000        in excess thereof (or, if less, the entire principal amount thereof then outstanding).  Each such        notice  shall  specify  the  date  and  amount  of  such  prepayment.   If  such  notice  is  given  by  the        Borrower, the Borrower shall make such prepayment and the payment amount specified in such        notice shall be due and payable on the date specified therein; provided, that, any such notice of        prepayment  may  indicate  that  such  prepayment  is  conditioned  upon  the  consummation  of  a        refinancing of this Agreement, capital raising or a particular Disposition or the occurrence of a        Change of Control and may be revoked by the Borrower in the event such refinancing or other        transaction is not consummated, and if so revoked, such prepayment shall not be due and payable.         Any prepayment pursuant to this Section 2.03(a) shall be accompanied by (x) all accrued interest        on  the  principal  amount  of  the  Loans  prepaid,  (y)  the  prepayment  premium  required  under        Section 2.03(d) and (z) all fees, costs, expenses, indemnities and other amounts due and payable        hereunder at the time of prepayment.  Each such prepayment shall be applied ratably to the Term        A Facility, the Term B-1 Facility, the Term B-2 Facility, the Term B-3 Facility, the Term B-4        Facility  and  the  Term  C  Facility.  Each  such  prepayment  shall  be  applied  to  the  Loans  of  the        Lenders  in  accordance  with  their  respective  Applicable  Percentages  in  respect  of  each  of  the        relevant Facilities.               (b)   Mandatory Prepayments.                     (i)   Dispositions and Involuntary Dispositions.  The Borrower shall promptly              (and in any event, within five (5) Business Days) prepay the Obligations in an aggregate              amount  equal  to  100%  of  the  Net  Cash  Proceeds  of  all  Dispositions  and  Involuntary              Dispositions received by any Loan Party or any Subsidiary; provided, that, such Net Cash              Proceeds  shall  not be  required to  be  so  applied  (A) until the  aggregate amount  of  Net              Cash  Proceeds  derived  from  all  such  Dispositions  or  Involuntary  Dispositions  in  any              fiscal year is equal to or greater than $500,000 (and then only in excess of such amount)              and (B) if, at the election of the Borrower, such Loan Party or such Subsidiary reinvests              all or any portion of such Net Cash Proceeds in Eligible Assets within three hundred sixty              five  (365)  days  of  the  date  of  such  Disposition  or  Involuntary  Disposition;  provided,                                         48  CHAR1\1707916v5 





 






               further, that, for purposes of the foregoing clause (B), if such Net Cash Proceeds shall              have not been so reinvested by the end of such period, such Net Cash Proceeds shall be              immediately  applied  to  prepay the  Loans.   Any  prepayment  pursuant  to  this  clause  (i)              shall be applied as set forth in clause (iv) below.                     (ii)  Extraordinary Receipts.   The  Borrower  shall  promptly  (and,  in  any              event,  within  five  (5)  Business  Days)  upon  the  receipt  by  any  Loan  Party  or  any              Subsidiary  of  the  Net  Cash  Proceeds  of  any  Extraordinary  Receipt,  prepay  the              Obligations in an aggregate amount equal to 100% of such Net Cash Proceeds; provided,              that, such Net Cash Proceeds shall not be required to be so applied (A) until the aggregate              amount of Net Cash Proceeds derived from all such Extraordinary Receipts in any fiscal              year is equal to or greater than $500,000 (and then only in excess of such amount) and              (B) if, at the election of the Borrower, such Loan Party or such Subsidiary reinvests all or              any portion of such Net Cash Proceeds in Eligible Assets within three hundred sixty five              (365)  days  of  the  date  of  receipt  thereof;  provided,  further,  that,  for  purposes  of  the              foregoing clause (B), if such Net Cash Proceeds shall have not been so reinvested by the              end of such period, such Net Cash Proceeds shall be immediately applied to prepay the              Loans.  Any prepayment pursuant to this clause (ii) shall be applied as set forth in clause              (iv) below.                     (iii) Debt Issuance.  The Borrower shall immediately upon the receipt by any              Loan Party or any Subsidiary of the Net Cash Proceeds of any Debt Issuance, prepay the              Obligations  in  an  aggregate  amount  equal  to  100%  of  such  Net  Cash  Proceeds.   Any              prepayment pursuant to this clause (iii) shall be applied as set forth in clause (iv) below.                     (iv)  Application of Mandatory Prepayments.  All payments under this Section              2.03(b) shall be applied first to all fees, costs, expenses, indemnities and other amounts              due and payable hereunder, then proportionately (based on the relation of such amounts              to the total amount of the relevant payment under this Section 2.03(b)) to the payment or              prepayment (as applicable) of the following amounts of the Obligations: default interest,              if any, prepayment premium required by Section 2.03(d), accrued interest and principal.               Each  such  prepayment  shall  be  applied  ratably  to  the  Term  A  Facility,  the  Term  B-1              Facility,  the  Term  B-2  Facility,  the  Term  B-3  Facility,  the  Term  B-4  Facility  and  the              Term C Facility.  Each such prepayment shall be applied to the Loans of the Lenders in              accordance with their respective Applicable Percentages in respect of each of the relevant              Facilities.               (c)   Change of Control.  Upon the occurrence of a Change of Control, the Borrower        shall, at the  direction of the  Required  Lenders, and may, at its option  upon three (3)  Business        Days’  prior  written  notice  from  the  Borrower  to  the  Administrative  Agent,  prepay  the        Outstanding Amount of the Loans together with all accrued and unpaid interest thereon plus the        prepayment premium required by Section 2.03(d) plus all other Obligations.  Each such direction        or notice shall specify the date and amount of such prepayment.  If such notice is given by the        Borrower, the Borrower shall make such prepayment and the payment amount specified in such        notice shall be due and payable on the date specified therein; provided, that, any such notice of        prepayment  may  indicate  that  such  prepayment  is  conditioned  upon  the  occurrence  of  such        Change  of  Control  and  may  be  revoked  by  Borrower  in  the  event  such  transaction  is  not        consummated,  and  if  so  revoked,  such  prepayment  shall  not  be  due  and  payable.   Each        prepayment under this Section 2.03(c) shall be applied to the Loans of the Lenders in accordance        with their respective Applicable Percentages in respect of each of the relevant Facilities.                                          49  CHAR1\1707916v5 





 






               (d)   Prepayment Premiums.  If all or any portion of the Loans are prepaid, or required        to be prepaid, pursuant to this Section 2.03, Article IX (whether by acceleration or otherwise) or        otherwise, then, in all cases, the Borrower shall pay to the Lenders, for their respective ratable        accounts, on the date on which such prepayment is paid or required to be paid, in addition to the        other Obligations so prepaid or required to be prepaid, a prepayment premium equal to: (i) with        respect to any prepayment paid or required to be paid on or prior to December 31, 2021, fifteen        percent (15.00%) of the principal amount of the Loans prepaid or required to be prepaid, (ii) with        respect to any prepayment paid or required to be paid after December 31, 2021 but on or prior to        December  31,  2022,  ten  percent  (10.00%)  of  the  principal  amount  of  the  Loans  prepaid  or        required  to  be  prepaid,  (iii)  with  respect  to  any  prepayment  paid  or  required  to  be  paid  after        December 31, 2022 but on or prior to December 31, 2023, five percent (5.00%) of the principal        amount of the Loans prepaid or required to be prepaid, (iv) with respect to any prepayment paid        or required to be paid after December 31, 2023 but on or prior to December 31, 2024, two and        one-half percent (2.50%) of the principal amount of the Loans prepaid or required to be prepaid,        and  (v)  with  respect  to  any  prepayment  paid  or  required  to  be  paid  thereafter,  zero  percent        (0.00%) of the principal amount of the Loans prepaid or required to be prepaid.         2.04  Termination or Reduction of Commitments.               (a)   Voluntary.  The Borrower may, upon notice to the Administrative Agent during        the  Term  B-1  Availability  Period  with  respect  to  the  Term  B-1  Facility,  during  the  Term  B-2        Availability  Period  with  respect  to  the  Term  B-2  Facility,  during  the  Term  B-3  Availability        Period  with  respect  to  the  Term  B-3  Facility,  during  the  Term  B-4  Availability  Period  with        respect to the Term B-4 Facility and during the Term C Availability Period with respect to the        Term  C  Facility,  terminate  in  full  the  Commitments  under  any  Facility,  or  from  time  to  time        permanently reduce the Commitments under any Facility; provided, that: (i) any such notice shall        be received by the Administrative Agent not later than 11:00 a.m. five (5) Business Days prior to        the date of termination or reduction and (ii) any such partial reduction shall be in an aggregate        amount of $5,000,000 or any whole multiple of $1,000,000 in excess thereof; provided, further,        that, any such notice of termination or reduction may indicate that such termination or reduction        is  conditioned upon the  consummation  of  a refinancing  of this Agreement, capital raising  or a        particular  Disposition  or  the  occurrence  of  a  Change  of  Control  and  may  be  revoked  by  the        Borrower  in  the  event  such  refinancing  or  other  transaction  is  not  consummated,  and  if  so        revoked, such termination or reduction shall not be due and payable.  Upon any termination or        reduction  of the Commitments  under a  Facility, the Commitments  of  each  Appropriate  Lender        shall be reduced by such Lender’s Applicable Percentage of such reduction amount.               (b)   Mandatory.  The Commitments under the Term A Facility shall be automatically        and permanently reduced to zero on the date of the Borrowing under such Facility pursuant to        Section 2.01.  The Commitments under the Term B-1 Facility, the Term B-2 Facility, the Term B-       3 Facility and the Term B-4 Facility shall be automatically and permanently reduced to zero on        the  earlier  of  (x) the  date of  the  Borrowing  under  such  Term  B-1  Facility,  Term  B-2  Facility,        Term B-3 Facility or Term B-4 Facility, as applicable, pursuant to Section 2.01 and (y) the date        that  the  Term  B-1  Availability  Period,  Term  B-2  Availability  Period,  Term  B-3  Availability        Period or Term B-4 Availability Period, as applicable, shall end.  The Term C Commitments shall        be automatically and permanently reduced to zero on the earlier to occur of (x) the date of the        Borrowing under the Term C Facility pursuant to Section 2.01 and (y) the date that the Term C        Availability  Period  shall  end.   Upon  any  reduction  of  the  Commitments  under  a  Facility,  the        Commitments  of  each  Appropriate  Lender  shall  be  reduced  by  such  Lender’s  Applicable        Percentage of such reduction amount.                                          50  CHAR1\1707916v5 





 






         2.05  Repayment of Loans.         The Borrower shall repay the outstanding principal amount of all Loans, together with all accrued  and unpaid interest thereon and all other outstanding Obligations, on the Maturity Date. If any principal  repayment to be made by the Borrower shall come due on a day other than a Business Day, such principal  repayment shall be due on the first immediately preceding Business Day.         2.06  Interest.               (a)   Pre-Default Rate.  Subject to the provisions of subsection (b) below, each Loan        shall bear interest on the outstanding principal amount thereof for each Interest Period from the        applicable borrowing date at a rate per annum equal to the Interest Rate for such Interest Period.               (b)   Default Rate.  (i) Upon the occurrence and during the existence of any Event of        Default, all outstanding Obligations shall thereafter bear interest at an interest rate per annum at        all times equal to the Interest Rate for the applicable Interest Period plus four percent (4.00%) per        annum (the “Default Rate”), to the fullest extent permitted by applicable Laws and (ii) accrued        and unpaid interest on past due amounts (including interest on past due interest) shall be due and        payable in cash on demand.               (c)   Interest Generally.  Interest on each Loan shall be due and payable in arrears on        each  Interest  Payment  Date  and  at  such  other  times  as  may  be  specified  herein.   Interest        hereunder  shall  be  due  and  payable  in  accordance  with  the  terms  hereof  before  and  after        judgment, and before and after the commencement of any proceeding under any Debtor Relief        Law.         2.07  Fees.         The Borrower shall pay to the Administrative Agent and the Lenders, for their own respective  accounts, fees in the amounts and at the times specified in the Fee Letter.  Such fees shall be fully earned  when paid and shall not be refundable for any reason whatsoever.         2.08  Computation of Interest.         All computations of interest shall be made on the basis of a 360-day year and actual days elapsed.   Interest shall accrue on each Loan for the day on which such Loan is made, and shall not accrue on a  Loan, or any portion thereof, for the day on which such Loan or such portion is paid.         2.09  Evidence of Debt.         The  Loans  made  by  each  Lender  shall  be  evidenced  by  one  or  more  accounts  or  records  maintained by such Lender in the ordinary course of business.  The accounts or records maintained by  each Lender shall be conclusive absent manifest error of the amount of Loans made by the Lenders to the  Borrower and the interest and payments thereon.  Any failure to so record or any error in doing so shall  not, however, limit or otherwise affect the obligation of the Borrower hereunder to pay any amount owing  with respect to the Obligations.  Upon the request of any Lender made through the Administrative Agent,  the  Borrower  shall  execute  and  deliver  to  such  Lender  a  promissory  note,  which  shall  evidence  such  Lender’s Loans in addition to such accounts or records.  Each such promissory note shall (i) in the case of  the Term A Loans, be in the form of Exhibit B-1 (a “Term A Note”), (ii) in the case of the Term B-1  Loans, be in the form of Exhibit B-2 (a “Term B-1 Note”), (iii) in the case of the Term B-2 Loans, be in  the form of Exhibit B-3 (a “Term B-2 Note”), (iv) in the case of the Term B-3 Loans, be in the form of                                         51  CHAR1\1707916v5 





 






   Exhibit B-4 (a “Term B-3 Note”), (v) in the case of the Term B-4 Loans, be in the form of Exhibit B-5 (a  “Term B-4 Note”) and (vi) in the case of the Term C Loans, be in the form of Exhibit B-6 (a “Term C  Note”).   Each  Lender  may  attach  schedules  to  its  Notes  and  endorse  thereon  the  date,  amount  and  maturity of its Loans and payments with respect thereto.         2.10  Payments Generally.               (a)   General.  All payments to be made by the Borrower shall be made free and clear        of  and  without  condition  or  (except  as  expressly  provided  in  Section  3.01)  deduction  for  any        counterclaim, defense, recoupment or setoff.  Subject to Section 9.03, all payments of principal,        interest, prepayment premiums and fees on the Loans and all other Obligations payable by any        Loan Party under the Loan Documents shall be due, without any presentment thereof, directly to        the Lenders, at the respective Lending Offices of the Lenders; provided, that, if at the time of any        such payment a Lender is a Defaulting Lender, such Defaulting Lender’s pro rata share of such        payment shall be made directly to the Administrative Agent.  The Loan Parties will make such        payments  in  Dollars,  in  immediately  available  funds  not  later  than  2:00  p.m.  on  the  date  due,        marked for attention as indicated, or in such other manner or to such other account in any United        States bank as the Lenders may from time to time direct in writing.  All payments received by the        Lenders after 2:00 p.m. shall be deemed received on the next succeeding Business Day and any        applicable interest or fee shall continue to accrue.  If any payment to be made by the Borrower        shall come due on a day other than a Business Day, payment shall be made on the next following        Business Day, and such extension of time shall be reflected in computing interest.               (b)   Obligations  of  Lenders  Several.   The  obligations  of  the  Lenders  hereunder  to        make Loans and to make payments pursuant to Section 11.04(c) are several and not joint.  The        failure of any Lender to make any Loan or to make any payment under Section 11.04(c) on any        date required hereunder shall not relieve any other Lender of its corresponding obligation to do so        on such date, and no Lender shall be responsible for the failure of any other Lender to so make its        Loan or to make its payment under Section 11.04(c).               (c)   Funding  Source.   Nothing  herein  shall  be  deemed  to  obligate  any  Lender  to        obtain the funds for any Loan in any particular place or manner or to constitute a representation        by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or        manner.         2.11  Sharing of Payments by Lenders.         If any Lender shall, by exercising any right of setoff or otherwise, obtain payment in respect of  any  principal  of  or  interest  on  its  portion  of  any  of  the  Loans  or  prepayment  premium  in  connection  therewith resulting in such Lender’s receiving payment of a proportion of the aggregate amount of the  Loans and accrued interest thereon and prepayment premium in connection therewith greater than its pro  rata share thereof as provided herein, then the Lender shall (a) notify the Administrative Agent of such  fact  and  (b)  purchase  (for  cash  at  face  value)  participations  in  the  portions  of  the  Loans  of  the  other  Lenders, or make such other adjustments as shall be equitable, so that the benefit of all such payments  shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of, accrued  interest on and prepayment premium in connection with their respective portions of the Loans and other  amounts owing them; provided, that:                     (i)   if  any  such  participations  are  purchased  and  all  or  any  portion  of  the              payment giving rise thereto is recovered, such participations shall be rescinded and the              purchase price restored to the extent of such recovery, without interest; and                                         52  CHAR1\1707916v5 





 






                     (ii)  the provisions of this Section 2.11 shall not be construed to apply to (x)              any payment made by or on behalf of the Borrower pursuant to and in accordance with              the express terms of this Agreement (including the application of funds arising from the              existence  of  a  Defaulting  Lender)  or  (y)  any  payment  obtained  by  a  Lender  as              consideration for the assignment of or sale of a participation in any of its portion of the              Loans to any assignee or participant, other than an assignment to any Loan Party or any              Subsidiary (as to which the provisions of this Section 2.11 shall apply).         Each Loan Party consents to the foregoing and agrees, to the extent it may effectively do so under  applicable  Law, that  any Lender  acquiring  a participation  pursuant to  the  foregoing arrangements may  exercise against such Loan Party rights of setoff and counterclaim with respect to such participation as  fully as if such Lender were a direct creditor of such Loan Party in the amount of such participation.         2.12  Defaulting Lenders.               (a)   Adjustments.   Notwithstanding  anything  to  the  contrary  contained  in  this        Agreement, if any Lender becomes a Defaulting Lender, then, until such time as that Lender is no        longer a Defaulting Lender, to the extent permitted by applicable Law:                     (i)   Waivers and Amendment.  The Defaulting Lender’s right to approve or              disapprove  any  amendment,  waiver  or consent  with respect to this  Agreement shall be              restricted as set forth in the definition of “Required Lenders” and Section 11.01.                     (ii)  Reallocation  of  Payments.   Any  payment  of  principal,  interest,  fees  or              any other amount received by the Administrative Agent for the account of that Defaulting              Lender (whether voluntary or mandatory, at maturity, pursuant to Article IX or otherwise,              and  including  any  amounts  made  available  to  the  Administrative  Agent  by  that              Defaulting Lender pursuant to Section 11.08), shall be applied at such time or times as              may be determined by the Administrative Agent as follows: first, to the payment of any              amounts owing by that Defaulting Lender to the Administrative Agent hereunder; second,              as the Borrower may request (so long as no Default or Event of Default exists), to the              funding  of  any  Loan  in  respect  of  which  that  Defaulting  Lender  has  failed  to  fund  its              portion  thereof  as  required  by  this  Agreement,  as  determined  by  the  Administrative              Agent; third, if so determined by the Administrative Agent and the Borrower, to be held              in a non-interest bearing deposit account and released in order to satisfy obligations of              that  Defaulting  Lender  to fund Loans under this  Agreement; fourth, to the  payment  of              any amounts owing to the Lenders as a result of any judgment of a court of competent              jurisdiction  obtained  by  any  Lender  against  that  Defaulting  Lender  as  a  result  of  that              Defaulting Lender’s breach of its obligations under this Agreement; fifth, so long as no              Default or Event of Default exists, to the payment of any amounts owing to the Borrower              as a result of any judgment of a court of competent jurisdiction obtained by the Borrower              against  that  Defaulting  Lender  as  a  result  of  that  Defaulting  Lender’s  breach  of  its              obligations  under  this  Agreement; and sixth, to that Defaulting  Lender  or  as  otherwise              directed  by  a  court  of  competent  jurisdiction;  provided,  that,  if  (x)  such  payment  is  a              payment of the principal amount of any Loans in respect of which that Defaulting Lender              has not fully funded its appropriate share and (y) such Loans were made at a time when              the conditions set forth in Section 5.03 were satisfied or waived, such payment shall be              applied solely to pay the Loans of all non-Defaulting Lenders on a pro rata basis prior to              being applied to the payment of any Loans of that Defaulting Lender.  Any payments,              prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or              held) to pay amounts owed by a Defaulting Lender pursuant to this Section 2.12(a)(ii)                                         53  CHAR1\1707916v5 





 






               shall  be  deemed  paid  to  and  redirected  by  that  Defaulting  Lender,  and  each  Lender              irrevocably consents hereto.               (b)   Defaulting Lender Cure.  If the Borrower and the Administrative Agent agree in        writing  in  their  sole  discretion  that  a  Defaulting  Lender  should  no  longer  be  deemed  to  be  a        Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as of        the  effective  date  specified  in  such  notice  and  subject  to  any  conditions  set  forth  therein,  that        Lender  will  cease  to  be  a  Defaulting  Lender;  provided,  that,  no  adjustments  will  be  made        retroactively  with  respect  to  fees  accrued  or  payments  made  by  or  on  behalf  of  the  Borrower        while that Lender was a Defaulting Lender; provided, further, that, except to the extent otherwise        expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender        will constitute a waiver or release of any claim of any party hereunder arising from that Lender        having been a Defaulting Lender.         2.13  Right of First Offer.               (a)   If the Borrower or any Subsidiary contemplates undertaking an issuance of any        Indebtedness (other than (x) Indebtedness permitted under Section 8.03(a), (c), (d), (e), (f), (j), (k)        or (m) or (y) Indebtedness in an aggregate principal amount below the Threshold Amount), then,        not less than thirty (30) Business Days prior to the proposed date of such issuance, the Borrower        shall provide written notice (a “Debt Issuance Notice”) thereof to the Lenders, and shall deliver        promptly  to  the  Lenders  such  information  concerning  such  issuance  as  the  Lenders  may        reasonably request.               (b)   For a period of twenty (20) Business Days (the “Exclusivity Period”) after receipt        by the Lenders of a Debt Issuance Notice, the Lenders shall have the exclusive option, but not the        obligation,  to  propose  the  material  terms  and  conditions  (the  “Proposed  Terms”)  under  which        they  would  be  willing  to  provide  such  Indebtedness  by  delivering  written  notice  (a  “Proposed        Term Sheet”) thereof to the Borrower, setting forth such Proposed Terms. Failure by the Lenders        to deliver a Proposed Term Sheet within the applicable Exclusivity Period shall be deemed an        election by the Lenders not to provide such Indebtedness. If the Lenders deliver a Proposed Term        Sheet to the Borrower that purports to provide not less than the aggregate amount of financing        contemplated  by  the  issuance  contemplated  in  the  Debt  Issuance  Notice,  then  neither  the        Borrower nor any Subsidiary may then undertake any such issuance with any other Person unless        such issuance with such other Person (x) includes financial covenants and events of default and        other  terms  including  amortization,  mandatory  prepayments  and  maturity  dates  that  are  more        favorable  (taken  as  a  whole)  to  the  Borrower  and  its  Subsidiaries  than  the  Indebtedness        contemplated by the Proposed Term Sheet (such determination to be made by the Borrower in        good  faith)  and  (y)  has  an  All-In-Yield  that  is  less  than  the  All-In-Yield  of  the  Indebtedness        contemplated by the Proposed Term Sheet; provided, that, prior to undertaking any such issuance        with any other Person, the Borrower or such Subsidiary shall provide the Lenders with at least ten        (10) Business Days’ notice thereof (and such information with respect thereto as the Lenders shall        reasonably  request)  and  afford  the  Lenders  a  period  of  five  (5)  Business  Days  thereafter  to        propose a Proposed Term Sheet containing economic terms at least as favorable to the Borrower        or such Subsidiary as the economic terms of such Indebtedness.         2.14  Term C Facility.         At  any  time  on  or  after  the Funding  Date but prior  to  December  31,  2020,  upon  prior  written  notice by the Borrower to the Administrative Agent, the Borrower may establish the Term C Facility in an  aggregate amount not to exceed TEN MILLION DOLLARS ($10,000,000); provided, that,                                         54  CHAR1\1707916v5 





 






               (a)   the  Borrower  shall  have  drawn  the  full  amount  of  the  Term  B-1  Facility,  the        Term B-2 Facility, the Term B-3 Facility and the Term B-4 Facility pursuant to Section 2.01(b);               (b)   no existing Lender shall be under any obligation to make any Term C Loan and        any such decision whether to make a Term C Loan shall be in such Lender’s sole and absolute        discretion;               (c)   (i) no Default or Event of Default shall exist and be continuing at the time of the        establishment of the Term C Facility and (ii) the conditions precedent set forth in Section 5.04        shall have been satisfied prior to or contemporaneously with funding of any Term C Loans;               (d)   the maturity date for the Term C Facility shall be the Maturity Date;               (e)   the Borrower shall have paid all fees required to be paid in connection therewith,        whether pursuant to the Fee Letter or otherwise;               (f)   the Term C Lenders, the Administrative Agent and the Loan Parties shall have        entered into such technical amendments to this Agreement as are necessary, in the Administrative        Agent’s reasonable discretion, to effect the inclusion of the Term C Facility herein;                (g)   the Borrower shall have obtained commitments for the aggregate amount of the        Term C Facility from existing Lenders pursuant to joinder documentation reasonably satisfactory        to the Administrative Agent; and                            (h)   the  Borrower  shall  have  delivered  to  the  Administrative  Agent  a  certificate  of        each Loan Party dated as of the date of such institution and effectiveness (in sufficient copies for        each Lender) signed by a Responsible Officer of such Loan Party (i) certifying and attaching the        resolutions adopted by such Loan Party approving or consenting to the Term C Facility and (ii)        certifying that, before and after giving effect to the Term C Facility, (x) the representations and        warranties contained in Article VI and the other Investments Documents are true and correct in        all respects on and as of the date of such increase, except to the extent that such representations        and warranties specifically refer to an earlier date, in which case they are true and correct in all        respects  as  of  such  earlier  date,  and  except  that  for  purposes  of  this  Section  2.14,  the        representations  and  warranties  contained  in  subsections  (a)  and  (b)  of  Section  6.05  shall  be        deemed  to  refer  to  the  most  recent  statements  furnished  pursuant  to  clauses  (a)  and  (b),        respectively, of Section 7.01 and (y) no Default or Event of Default exists.                                     ARTICLE III.                                                                               TAXES         3.01  Taxes.               (a)   Except as required by applicable Law, all payments of principal and interest on        the Loans 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,  property  or  franchise        taxes, VAT 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 (x) taxes imposed on or measured by net income imposed by the jurisdiction (or any        political subdivision thereof) under which a Recipient is organized or in which such Recipient has        its  principal  office,  applicable  Lending  Office  or  with  which  such  Recipient  otherwise  has  a                                         55  CHAR1\1707916v5 





 






         present  or  former  connection  (other  than  solely  as  the  result  of  entering  into  any  of  the  Loan        Documents  or  taking  any  action  thereunder),  (y)  U.S.  federal  withholding  taxes  imposed  on        amounts payable to or for the account of a Recipient with respect to an applicable interest in a        Loan or Commitment pursuant to a law in effect on the date on which (i) such Recipient acquires        such interest in the Loan or Commitment (other than pursuant to an assignment request by the        Borrower pursuant to Section 11.13) or (ii) such Recipient changes its Lending Office, except in        each case to the extent that, pursuant to this Section 3.01, amounts with respect to such taxes were        payable either  to  such  Recipient’s assignor  immediately  before  such  Recipient became  a  party        hereto or to such Recipient immediately before it changed its Lending Office and (z) U.S. federal        withholding  tax  imposed  under  FATCA  (all  non-excluded  items  being  called  “Taxes”).  If  any        withholding or deduction of any Taxes from any payment by or on account of any obligation of        any Loan Party hereunder is required in respect of any Taxes pursuant to any applicable Law,        then (i) the applicable Withholding Agent shall be entitled to make such withholding or deduction        and shall pay directly to the relevant Governmental Authority the full amount required to be so        withheld  or  deducted,  (ii)  the  applicable  Withholding  Agent  shall  promptly  forward  to  the        Administrative  Agent  an  official  receipt  or  other  documentation  reasonably  satisfactory  to  the        Administrative Agent evidencing such payment to such Governmental Authority and (iii) the sum        payable by the applicable Loan Party shall be increased by such additional amount or amounts as        is necessary to ensure that the net amount actually received by the applicable Recipient will equal        the full amount such Recipient would have received had no such withholding or deduction for        Taxes been required.               (b)   The Borrower or the Guarantors, as applicable, shall indemnify each Recipient,        within ten  (10) days  after demand therefor,  for the  full  amount  of any  Taxes (including  Taxes        imposed on or attributable to amounts payable under this Section 3.01) payable or paid by such        Recipient  or  required  to  be  withheld  or  deducted  from  a  payment  by  such  Recipient  and  any        reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were        correctly or legally imposed or asserted by the relevant Governmental Authority.               (c)   (i) Any Lender that is entitled to an exemption from or reduction of withholding        tax, including  under FATCA,  with  respect  to  payments made  under  any  Loan Document shall        deliver to the Borrower and the Administrative Agent, at the time or times reasonably requested        by  the  Borrower  or  the  Administrative  Agent,  such  properly  completed  and  executed        documentation prescribed by applicable Law (including as prescribed by Section 1471(b)(3)(C)(i)        of  the  Internal  Revenue  Code)  or  reasonably  requested  by  the  Borrower  or  the  Administrative        Agent  as  will  permit  such  payments  to  be  made  without  withholding  or  at  a  reduced  rate  of        withholding.   In  addition,  any  Lender,  if  reasonably  requested  by  the  Borrower  or  the        Administrative  Agent,  shall  deliver  such  other  documentation prescribed  by  applicable Law  or        reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or        the  Administrative  Agent  to  determine  whether  or  not  such  Lender  is  subject  to  backup        withholding or information reporting requirements.  Notwithstanding anything to the contrary in        the preceding sentences, the completion, execution and submission of such documentation (other        than  such  documentation  set  forth  in  Section  3.01(c)(ii)  below)  shall  not  be  required  if  in  the        Lender’s  reasonable  judgment  such  completion,  execution  or  submission  would  subject  such        Lender to any material unreimbursed cost or expense or would materially prejudice the legal or        commercial position of such Lender.               (ii)  Each  Lender  that  is  not  a  “United  States  person”  as  defined  in  Section        7701(a)(30)  of  the  Internal  Revenue  Code  that  purports  to  become  an  assignee  of  an  interest        pursuant to Section 11.06 after the Effective Date (each such Lender a “Foreign Lender”) shall, to        the  extent  it  is  legally  entitled  to  do  so,  execute  and  deliver  to  each  of  the  Borrower  and  the                                         56  CHAR1\1707916v5 





 






         Administrative Agent on or prior to the date that such Lender becomes a party hereto (and from        time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent),        one  or  more  (as  the  Borrower  or  the  Administrative  Agent  may  reasonably  request)  duly        completed  and  executed  copies of  United  States  Internal Revenue  Service  Forms W-8ECI,  W-       8BEN, W-8BEN-E, W-8IMY and other certification documents from each beneficial owner (as        applicable).  Each Lender that is a “United States person” as defined in Section 7701(a)(30) of the        Internal Revenue Code shall execute and deliver to the Borrower and the Administrative Agent        on or prior to the date such Lender becomes a party hereto (and from time to time thereafter upon        the  reasonable  request  of  the  Borrower  or  the  Administrative  Agent),  one  or  more  (as  the        Borrower  or  the  Administrative  Agent  may  reasonably  request)  duly  completed  and  executed        copies of United States Internal Revenue Service Form W-9 certifying that such Lender is not        subject to United States backup withholding.                 (iii)  The  Borrower  shall  not  be  required  to  pay  additional  amounts  to  any  Lender        pursuant  to  this  Section  3.01  with  respect  to  taxes  attributable  to  the  failure  of  such  Foreign        Lender to comply with this Section 3.01(c), and such taxes shall be excluded from the definition        of Taxes.               (d)   Each  Lender  agrees  that  if  any  form  or  certification  it  previously  delivered        pursuant to this Section 3.01 expires or becomes obsolete or inaccurate in any respect, it shall        promptly update such form or certification or promptly notify the Administrative Agent and the        Borrower of its inability to do so.               (e)   If any party determines, in its sole discretion exercised in good faith, that it has        received a refund of any Taxes as to which it has been indemnified pursuant to this Section 3.01        (including by the payment of additional amounts pursuant to this Section 3.01), it shall pay to the        indemnifying party an amount equal to such refund (but only to the extent of indemnity payments        made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-       pocket expenses (including Taxes) of such indemnified party and without interest (other than any        interest  paid  by  the  relevant  Governmental  Authority  with  respect  to  such  refund).   Such        indemnifying party, upon the request of such indemnified party, shall repay to such indemnified        party the amount paid over pursuant to this clause (e) (plus any penalties, interest or other charges        imposed  by  the  relevant  Governmental  Authority)  in  the  event  that  such  indemnified  party  is        required to repay such refund to such Governmental Authority.  Notwithstanding anything to the        contrary in this clause (e), in no event will the indemnified party be required to pay any amount to        an  indemnifying  party  pursuant  to  this  clause  (e)  the  payment  of  which  would  place  the        indemnified party in a less favorable net after-Tax position than the indemnified party would have        been  in  if  the  Tax  subject  to  indemnification  and  giving  rise  to  such  refund  had  not  been        deducted, withheld or otherwise imposed and the indemnification payments or additional amounts        with respect to such Tax had never been paid.  This paragraph shall not be construed to require        any indemnified party to make available its Tax returns (or any other information relating to its        Taxes that it deems confidential) to the indemnifying party or any other Person.         3.02  Increased Costs.               (a)   Increased Costs Generally.  If any Change in Law shall:                     (i)   impose,  modify  or  deem  applicable  any  reserve,  special  deposit,              compulsory loan, insurance charge or similar requirement against assets of, deposits with              or for the account of, or credit extended or participated in by, any Lender (except any              reserve requirement contemplated by Section 3.02(d);                                          57  CHAR1\1707916v5 





 






                     (ii)  subject any Recipient to any taxes (other than (A) Taxes that are covered              by Section 3.01(b) and (B) taxes that are excluded from the definition of Taxes in Section              3.01(a)) on its loans, loan principal, commitments, or other obligations, or its deposits,              reserves, other liabilities or capital attributable thereto; or                     (iii) impose  on  any  Lender  or  the  London  interbank  market  any  other              condition, cost or expense (other than taxes) affecting this Agreement;         and the result of any of the foregoing shall be to increase the cost to such Lender of making or        maintaining  any  Loan  (or  of  maintaining  its  obligation  to  make  any  such  Loan),  then,  upon        request of such Lender, the Borrower will pay to such Lender, as the case may be, such additional        amount or amounts as will compensate such Lender, as the case may be, for such additional costs        incurred or reduction suffered.               (b)   Capital  Requirements.   If  any  Lender  determines  that  any  Change  in  Law        affecting such Lender or any Lending Office of such Lender or such Lender’s holding company,        if any, regarding capital or liquidity requirements has or would have the effect of reducing the        rate of return on such Lender’s capital or on the capital of such Lender’s holding company, if any,        as a consequence of this Agreement, the Commitments of such Lender or the Loans made by such        Lender to a level below that which such Lender or such Lender’s holding company could have        achieved but for such Change in Law (taking into consideration such Lender’s policies and the        policies of such Lender’s holding company with respect to capital adequacy), then from time to        time  the  Borrower  will  pay  to  such  Lender,  as  the  case  may  be,  such  additional  amount  or        amounts  as  will  compensate  such  Lender  or  such  Lender’s  holding  company  for  any  such        reduction suffered.               (c)   Certificates  for  Reimbursement.   A  certificate  of  a  Lender  setting  forth  the        amount or amounts necessary to compensate such Lender or its holding company, as the case may        be, as  specified in subsection  (a)  or (b)  of  this  Section  and  delivered  to the Borrower  shall be        conclusive absent manifest error.  The Borrower shall pay such Lender the amount shown as due        on any such certificate within ten (10) days after receipt thereof.               (d)   Reserves on Loans.  The Borrower shall pay to each Lender, (i) as long as such        Lender shall be required to maintain reserves with respect to liabilities or assets consisting of or        including  eurocurrency  funds  or  deposits  (currently  known  as  “Eurocurrency  liabilities”),        additional interest on the unpaid principal amount of each Loan equal to the actual costs of such        reserves  allocated  to  such  Loan  by  such  Lender  (as  determined  by  such  Lender  in  good  faith,        which  determination  shall be  conclusive),  and  (ii)  as  long  as  such  Lender  shall  be  required  to        comply with any reserve ratio requirement or analogous requirement of any central banking or        financial regulatory authority imposed in respect of the maintenance of the Commitments or the        funding of the Loans, such additional costs (expressed as a percentage per annum and rounded        upwards, if necessary, to the nearest five decimal places) equal to the actual costs allocated to        such Commitment or Loan by such Lender (as determined by such Lender in good faith, which        determination shall be conclusive), which in each case shall be due and payable on each date on        which interest is payable on such Loan; provided, that, the Borrower shall have received at least        ten (10) days’ prior notice (with a copy to the Administrative Agent) of such additional interest or        costs from such Lender.  If a Lender fails to give notice ten (10) days prior to the relevant Interest        Payment  Date,  such  additional  interest  shall  be  due  and  payable  ten  (10)  days  from  receipt  of        such notice.                                          58  CHAR1\1707916v5 





 






               (e)   Delay  in  Requests.   Failure  or  delay  on  the  part  of  any  Lender  to  demand        compensation pursuant to the foregoing provisions of this Section shall not constitute a waiver of        such  Lender’s  right  to  demand  such  compensation,  provided,  that,  the  Borrower  shall  not  be        required  to  compensate  a  Lender  pursuant  to  the  foregoing  provisions  of  this  Section  for  any        increased costs incurred or reductions suffered more than nine (9) months prior to the date that        such Lender notifies the Borrower of the Change in Law giving rise to such increased costs or        reductions  and  of  such  Lender’s  intention  to  claim  compensation  therefor  (except  that,  if  the        Change  in  Law  giving  rise  to  such  increased  costs  or  reductions  is  retroactive,  then  the  nine-       month  period  referred  to  above  shall  be  extended  to  include  the  period  of  retroactive  effect        thereof).         3.03  Mitigation Obligations; Replacement of Lenders.               (a)   Designation of a Different Lending Office.  If any Lender requests compensation        under  Section  3.02  or  requires  the  Borrower  to  pay  any  Taxes  or  additional  amounts  to  any        Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01, or        if any Lender gives a notice pursuant to Section 3.02, then at the request of the Borrower such        Lender  shall,  as  applicable,  use  reasonable  efforts  to  designate  a  different  Lending  Office  for        funding  or  booking  its  Loans  hereunder  or  to  assign  its  rights  and  obligations  hereunder  to        another of its offices, branches or affiliates, if, in the judgment of such Lender, such designation        or assignment (i) would eliminate or reduce amounts payable pursuant to Section 3.01 or 3.02, as        the case may be, in the future, or eliminate the need for the notice pursuant to Section 3.02, as        applicable,  and  (ii)  in  each  case,  would  not  subject  such  Lender,  as  the  case  may  be,  to  any        unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender.  The        Borrower  hereby  agrees  to  pay  all  reasonable  costs  and  expenses  incurred  by  any  Lender  in        connection with any such designation or assignment.               (b)   Replacement  of  Lenders.   If  any  Lender  requests  compensation  under  Section        3.02, or if the Borrower is required to pay any Taxes or additional amounts to any Lender or any        Governmental Authority for the account of any Lender pursuant to Section 3.01 and, in each case,        such Lender has declined or is unable to designate a different Lending Office in accordance with        Section 3.03(a), the Borrower may replace such Lender in accordance with Section 11.13.         3.04  Illegality.         If any Lender determines that any Law has made it unlawful, or that any Governmental Authority  has asserted that it is unlawful, for any Lender or its Lending Office to perform any of its obligations  hereunder  or  to  make,  maintain  or  fund  or  charge  interest  with  respect  to  any  Borrowing,  or  any  Governmental Authority has imposed material restrictions on the authority of such Lender to purchase or  sell, or to take deposits of, Dollars in the London interbank market, then, on notice thereof by such Lender  to  the  Borrower  through  the  Administrative  Agent,  any  obligation  of  such  Lender  to  issue,  make,  maintain, fund or charge interest with respect to any such Borrowing or to make Loans shall be suspended  until such Lender notifies the Administrative Agent and the Borrower that the circumstances giving rise  to  such  determination no  longer  exist.   Upon receipt of such notice,  the  Borrower  shall, upon  demand  from such Lender (with a copy to the Administrative Agent), prepay the Loans immediately.  Upon any  such prepayment, the Borrower shall also pay accrued interest on the amount so prepaid.                3.05  Three-Month LIBOR Unavailability Period.         Notwithstanding anything to the contrary in this Agreement or any other Loan Document, if the  Administrative Agent determines (which determination shall be conclusive absent manifest error) that a                                         59  CHAR1\1707916v5 





 






   LIBOR  Unavailability  Period  has  commenced  and  is  continuing,  then,  reasonably  promptly  after  such  determination, the Administrative Agent shall give the Borrower notice thereof and the Administrative  Agent and the Borrower may amend this Agreement to replace Three-Month LIBOR with an alternate  benchmark rate (including any mathematical or other adjustments to the benchmark (if any) incorporated  therein),  giving  due  consideration  to  any  evolving  or  then  existing  convention  for  similar  U.S.  dollar  denominated  credit  facilities  for  such  alternative  benchmarks  (any  such  proposed  rate,  a  “LIBOR  Successor Rate”), together with any proposed LIBOR Successor Rate Conforming Changes and any such  amendment shall become effective at 5:00 p.m. (New York time) on the fifth (5th) Business Day after the  Administrative  Agent  shall  have  posted  such  proposed  amendment  to  all  Lenders  and  the  Borrower  unless, prior to such time, Lenders comprising the Required Lenders have delivered to the Administrative  Agent written notice that such Required Lenders do not accept such amendment.  It is understood and  agreed that, for all purposes of this Agreement, once commenced, a “LIBOR Unavailability Period” shall  be  deemed  to  exist  and  be  continuing  unless  and  until  such  amendment  has  become  effective  in  accordance with the terms hereof.         During  the  continuance  of  any  LIBOR  Unavailability  Period,  the  obligation  of  the  Lenders  to  make  or  maintain  Loans  with  an  Interest  Rate  calculated  based  on  Three-Month  LIBOR  shall  be  suspended and the Borrower may revoke any pending request for a Borrowing of Loans with an Interest  Rate calculated based on Three-Month LIBOR or, failing that, will be deemed to have converted such  request into a request for a Borrowing of Loans with an Interest Rate calculated based on the Prime Rate.         Notwithstanding anything else herein, any definition of LIBOR Successor Rate shall provide that  in no event shall such LIBOR Successor Rate be less than zero for purposes of this Agreement.                3.06  Survival.         All  of  the  Borrower’s  obligations  under  this  Article  III  shall  survive  termination  of  the  Commitments, repayment of all Obligations and resignation of the Administrative Agent.                                    ARTICLE IV.                                                                            GUARANTY         4.01  The Guaranty.         Each  of  the  Guarantors  hereby  jointly  and  severally  guarantees  to  each  Secured  Party  as  hereinafter provided, as primary obligor and not as surety, the prompt payment of the Obligations in full  when due (whether at stated maturity, as a mandatory prepayment, by acceleration or otherwise) strictly  in accordance with the terms thereof.  The Guarantors hereby further agree that if any of the Obligations  are not paid in full when due (whether at stated maturity, as a mandatory prepayment, by acceleration or  otherwise),  the  Guarantors  will,  jointly  and  severally,  promptly  pay  the  same,  without  any  demand  or  notice whatsoever,  and  that  in  the  case  of any  extension  of  time  of  payment  or  renewal  of any  of the  Obligations,  the  same  will  be  promptly  paid  in  full  when  due  (whether  at  extended  maturity,  as  a  mandatory prepayment, by acceleration or otherwise) in accordance with the terms of such extension or  renewal.         Notwithstanding  any  provision  to  the  contrary  contained  herein  or  in  any  other  of  the  Loan  Documents, the obligations of each Guarantor under this Agreement and the other Loan Documents shall  be  limited  to  an  aggregate  amount  equal  to  the  largest  amount  that  would  not  render such  obligations  subject to avoidance under Debtor Relief Laws or any comparable provisions of any applicable state law.                                          60  CHAR1\1707916v5 





 






         4.02  Obligations Unconditional.         The  obligations  of  the  Guarantors  under  Section  4.01  are  joint  and  several,  absolute  and  unconditional, irrespective of the value, genuineness, validity, regularity or enforceability of any of the  Loan Documents, or any other agreement or instrument referred to therein, or any substitution, release,  impairment or exchange of any other guarantee of or security for any of the Obligations, and, to the fullest  extent  permitted  by  applicable  law,  irrespective  of  any  law  or  regulation  or  other  circumstance  whatsoever  which  might  otherwise  constitute  a  legal  or  equitable  discharge  or  defense  of  a  surety  or  guarantor, it being the intent of this Section 4.02 that the obligations of the Guarantors hereunder shall be  absolute and unconditional under any and all circumstances.  Each Guarantor agrees that such Guarantor  shall have no right of subrogation, indemnity, reimbursement or contribution against the Borrower or any  other  Guarantor  for  amounts  paid  under  this  Article  IV  until  such  time  as  the  Obligations  (other  than  contingent indemnification obligations for which no claim has been asserted) have been paid in full and  the  Commitments  have  expired  or  terminated.   Without  limiting  the  generality  of  the  foregoing,  it  is  agreed that, to the fullest extent permitted by law, the occurrence of any one or more of the following  shall  not  alter  or  impair  the  liability  of  any  Guarantor  hereunder,  which  shall  remain  absolute  and  unconditional as described above:               (a)   at any time or from time to time, without notice to any Guarantor, the time for        any  performance  of  or  compliance  with  any  of  the  Obligations  shall  be  extended,  or  such        performance or compliance shall be waived;               (b)   any of the acts mentioned in any of the provisions of any of the Loan Documents,        or any other agreement or instrument referred to in the Loan Documents shall be done or omitted;               (c)   the  maturity  of  any  of  the  Obligations  shall  be  accelerated,  or  any  of  the        Obligations shall be modified, supplemented or amended in any respect, or any right under any of        the Loan Documents, or any other agreement or instrument referred to in the Loan Documents        shall be waived or any other guarantee of any of the Obligations or any security therefor shall be        released, impaired or exchanged in whole or in part or otherwise dealt with;               (d)   any Lien granted to, or in favor of, any Secured Party as security for any of the        Obligations shall fail to attach or be perfected; or               (e)   any  of  the  Obligations  shall  be  determined  to  be  void  or  voidable  (including,        without limitation, for the benefit of any creditor of any Guarantor) or shall be subordinated to the        claims of any Person (including, without limitation, any creditor of any Guarantor).         With respect to its obligations hereunder, each Guarantor hereby expressly waives, to the extent  permitted  by  applicable  Law,  diligence,  presentment,  demand  of  payment,  protest  and  all  notices  whatsoever, and any requirement that the Secured Parties exhaust any right, power or remedy or proceed  against any Person under any of the Loan Documents, or any other agreement or instrument referred to in  the Loan Documents, or against any other Person under any other guarantee of, or security for, any of the  Obligations.         4.03  Reinstatement.         The obligations of the Guarantors under this Article IV shall be automatically reinstated if and to  the extent that for any reason any payment by or on behalf of any Person in respect of the Obligations is  rescinded or must be otherwise restored by any Secured Party, whether as a result of any proceedings in  bankruptcy or reorganization or otherwise, and each Guarantor agrees that it will indemnify the Secured                                         61  CHAR1\1707916v5 





 






   Parties on demand for all reasonable costs and expenses (including, without limitation, the fees, charges  and  disbursements  of  counsel)  incurred  by  the  Secured  Parties  in  connection  with  such  rescission  or  restoration, including any such costs and expenses incurred in defending against any claim alleging that  such  payment  constituted  a  preference,  fraudulent  transfer  or  similar  payment  under  any  bankruptcy,  insolvency or similar law.         4.04  Certain Additional Waivers.         Each  Guarantor  agrees  that  such  Guarantor  shall  have  no  right  of  recourse  to  security  for  the  Obligations, except through the exercise of rights of subrogation pursuant to Section 4.02 and through the  exercise  of  rights  of  contribution  pursuant  to  Section  4.06.   For  the  avoidance  of  doubt  and  notwithstanding  the  fact  that  the  obligations  of  each  Brazilian  Guarantor  under  this  Article  IV  are  governed  by  the  law  of  the  State  of  New  York,  each  Brazilian  Guarantor  hereby  irrevocably  and  unconditionally waives the benefits of Articles 827, 829, 830, 834, 835, 837, 838 and 839 of Law No.  10,406, of January 10, 2002 and Articles 130 and 794 of Law No. 10,105, of March 16, 2015.         4.05  Remedies.         The Guarantors agree that, to the fullest extent permitted by law, as between the Guarantors, on  the one hand, and the Secured Parties, on the other hand, the Obligations may be declared to be forthwith  due and payable as provided in Section 9.02 (and shall be deemed to have become automatically due and  payable in the circumstances provided in said Section 9.02) for purposes of Section 4.01 notwithstanding  any stay, injunction or other prohibition preventing such declaration (or preventing the Obligations from  becoming  automatically  due  and  payable)  as  against  any  other  Person  and  that,  in  the  event  of  such  declaration  (or  the  Obligations  being  deemed  to  have  become  automatically  due  and  payable),  the  Obligations  (whether  or  not  due  and  payable  by  any  other  Person)  shall  forthwith  become  due  and  payable by the Guarantors for purposes of Section 4.01.  The Guarantors acknowledge and agree that their  obligations hereunder are secured in accordance with the terms of the Collateral Documents and that the  Secured Parties may exercise their remedies thereunder in accordance with the terms thereof.         4.06  Rights of Contribution.         The Guarantors agree among themselves that, in connection with payments made hereunder, each  Guarantor shall have contribution rights against the other Guarantors as permitted under applicable law.   Such contribution rights shall be subordinate and subject in right of payment to the obligations of such  Guarantors under the Loan Documents and no Guarantor shall exercise such rights of contribution until  all Obligations (other than contingent indemnification obligations for which no claim has been asserted)  have been paid in full and the Commitments have terminated.         4.07  Guarantee of Payment; Continuing Guarantee.         The guarantee in this Article IV is a guaranty of payment and not of collection, is a continuing  guarantee, and shall apply to all Obligations whenever arising.         4.08  Limitations Applicable to Belgian Loan Parties.               (a)   The total liability of a Belgian Loan Party for the Obligations of any other Loan        Party  under  the  Loan  Documents  shall  at  all  times  be  limited  to  an  amount  (without  double        counting) not exceeding the sum of:                                            62  CHAR1\1707916v5 





 






                     (i)   the aggregate of all principal amounts, either directly or through one or              more other Loan Parties (through intra-group loans or otherwise and whether retained for              its own purposes or on-lent) made available to such Belgian Loan Party (or its direct or              indirect  Subsidiaries)  under  any  intra-group  arrangement  (including  through  the              subscription  of  debt  instruments)  using  proceeds  made  available  pursuant  to  this              Agreement; plus                      (ii)  ninety-five percent (95%) of such Belgian Loan Party’s own net assets              (netto actief/actif net) (as determined in accordance with the second paragraph of article              320, 429 or 617 of the Belgian Companies Code (as applicable) and accounting principles              generally accepted in Belgium and ignoring the Guaranty of such Belgian Loan Party) as              shown by its most recent audited unconsolidated annual financial statements at the date              on which the demand is made on it.                (b)   No Belgian Loan Party shall be liable for the Obligations of any other Loan Party        under  the  Loan  Documents  to  the  extent  that  such  liability  would  result  in  such  guarantee        constituting unlawful financial assistance within the meaning of Article 329, 430 or 629 of the        Belgian Companies Code (as applicable).                      4.09  Limitations Applicable to French Guarantors.               (a)   In the case of each French Guarantor, its obligations under this Article IV shall        apply only insofar as required to:                     (i)   guarantee  the  payment  obligations  under  the  Loan  Documents  of  its              direct or indirect Subsidiaries which are or become Loan Parties from time to time under              this Agreement and incurred by those Subsidiaries as a Borrower (if such Subsidiary is               not  a  French  Loan  Party)  or  as  a  Borrower  and/or  Guarantor  (if  such  Subsidiary  is  a              French Loan Party); and                       (ii)  guarantee  the  payment  obligations  of  the  other  Loan  Parties  which  are              not direct or indirect Subsidiaries of such French Guarantor; provided, that, in each such              case such guarantee shall (A) be limited to the payment obligations of such other Loan              Parties under the Loan Documents and (B) not exceed an amount equal to the aggregate              amount  borrowed  by  such  other  Loan  Parties  under  this  Agreement  (either  directly  in              their capacity as a Borrower or indirectly by way of one or more intra-group loans made              to such other Loan Parties directly or indirectly by the Borrower), and (without double              counting)  on-lent  to  such  French  Guarantor  by  way  of  one  or  more  intra-group  loans              directly  or  indirectly  from  such  other  Loan  Parties  and  outstanding  from  time  to  time              (such amount being the “Maximum French Guaranteed Amount”).               (b)   Any  payment  made  by  a  French  Guarantor  in  accordance  with  clause  (a)(ii)        above in respect of the obligations of any other Loan Party shall reduce pro tanto the outstanding        amount of the intra-group loans due by such French Guarantor to such other Loan Party under the        intra-group loans referred to therein.               (c)   For the avoidance of doubt, any payment made by a French Guarantor in respect        of the payment obligations of another Loan Party referred to in clause (a)(ii) above shall reduce        the relevant Maximum French Guaranteed Amount.                                          63  CHAR1\1707916v5 





 






               (d)   Notwithstanding  any  other  provision  of  this  Article  IV,  no  French  Guarantor        shall  secure  liabilities  under  this  Agreement  which  would  result  in  such  French  Guarantor  not        complying with French financial assistance rules as set out in article L. 225-216 of the French        Code de commerce and/or would constitute a misuse of corporate assets within the meaning of        article L. 241-3 or L. 242-6 of the French Code de commerce or any other laws or regulations        having the same effect, as interpreted by French courts.               (e)   Notwithstanding  anything in  this  Agreement  to  the  contrary (including  Section        4.02), it is acknowledged that each French Guarantor is not acting jointly and severally with the        other  Guarantors  and  shall  not  be  considered  as  “co-débiteur  solidaire”  as  to  their  obligations        pursuant to the guarantee given in accordance with this Article IV.         4.10  Limitations Applicable to Spanish Guarantors.         Notwithstanding anything in this Agreement to the contrary, the obligations and liabilities of each  Spanish Guarantor shall be deemed not to be assumed by such Spanish Guarantor to the extent that they  constitute or may constitute unlawful financial assistance within the meaning of article 150 of the Spanish  Companies Law (where the company is a Spanish public company (Sociedad Anónima)) or article 143 of  the  Spanish Companies Law  (where  the  company is a  Spanish  limited  liability company  (Sociedad de  Responsabilidad Limitada)). Accordingly, the obligations and liabilities of each Spanish Guarantor under  this Agreement (including, without limitation, this Article IV) and the other Loan Documents shall not  include and shall not be extended to any repayment obligations in respect of financing used in or towards  the payment or refinance of the purchase price or subscription for the shares or quotas in such Spanish  Guarantor and/or the acquisition of or subscription for the shares or quotas in such Spanish Guarantor’s  controlling  corporation  (or,  where  such  Spanish  Guarantor  is  a  Spanish  limited  liability  company  (Sociedad de Responsabilidad Limitada), of any company of its group), either directly or indirectly. The  guarantee, indemnity and other obligations of each Spanish Guarantor incorporated as a Spanish limited  liability company (Sociedad de Responsabilidad Limitada) expressed to be assumed by it hereunder shall  not  include  and  shall  not extend  to  any  obligations  which  could  reasonably  be  expected  to  result  in  a  breach of article 401 of the Spanish Companies Law.                4.11  Limitations Applicable to Italian Guarantors.         Notwithstanding the foregoing and any provisions to the contrary in any Loan Document:                (a)   the guarantee and indemnification obligations expressed to be assumed by each        Italian Guarantor hereunder shall, at any time, not exceed the aggregate at that time of:                     (i)   the  outstanding  principal  amount from time  to time of any  sums made              available to such Italian Guarantor or any of its direct or indirect subsidiaries pursuant to              Section 2359 of the Italian Civil Code as a borrower under this Agreement; and                     (ii)  the  outstanding  principal  amount  of  any  loan  in  any  form  (including,              without  limitation,  any  intercompany  loan),  documentary  credit  (including  any              intercompany  documentary  credit)  or  other  form  of  financial  support,  directly  or              indirectly  made  available  from  time  to  time  after  the  Effective  Date  to  that  Italian              Guarantor  or  any  of  its  direct  or  indirect  subsidiaries  pursuant  to  Section  2359  of  the              Italian  Civil  Code  by  any  Loan  Party  or  any  direct  or  indirect  subsidiary  of  any  Loan              Party;                                          64  CHAR1\1707916v5 





 






               (b)   in any case, for the sole purposes of compliance with Article 1938 of the Italian        Civil Code, the maximum amount that each Italian Guarantor may be required to pay in respect of        its obligations as a Guarantor under this Agreement shall not exceed an overall amount equal to        $112,500,000.00 (or the equivalent in any other currency); and               (c)   in order to comply with (i) the mandatory provisions of Italian Law in relation to        maximum  interest  rates  (including  Italian  Law  No.  108  of  7  March  1996,  as  subsequently        amended  and/or  supplemented  (the  “Italian  Usury  Law”)  and  article  1815  of  the  Italian  Civil        Code) and (ii) the Italian Law provisions relating to financial assistance (including Sections 2358        and 2474 of the Italian Civil Code), the obligations of each Italian Guarantor hereunder shall not        include and shall not extend to (A) any interest qualifying as usurious pursuant the Italian Usury        Law  and  (B)  any  amount  made  available  to  any  Loan  Party  under  any  Loan  Document  the        proceeds of which have been applied towards, either directly or indirectly, the financing or re-       financing of the acquisition of, or the subscription for, shares in that Italian Guarantor and/or any        entity of which that Italian Guarantor is a direct or indirect subsidiary pursuant to Section 2359 of        the Italian Civil Code, including any related costs and expenses.         4.12  Limitations Applicable to German Guarantors.               (a)   In this Section 4.12, “Net Assets” means the relevant company’s assets (Section        266  para.  (2)  A,  B,  C,  D  and  E  German  Commercial  Code  (Handelsgesetzbuch))  less  the        aggregate  of  its  liabilities  (Section  266  para.  (3)  B  (but  disregarding  any  accruals        (Rückstellungen)  in  respect  of  a  potential  enforcement  of  the  security  granted  under  this        Agreement), C, D and E German Commercial Code (Handelsgesetzbuch)), the amount of profits        (Gewinne) not available for distribution to its shareholders in accordance with sections 253 para.        6, 268 para. 8 and 272 para. 5 German Commercial Code (Handelsgesetzbuch) (if any) and the        amount of its stated share capital (Stammkapital).                            (b)   The Administrative Agent agrees not to enforce the security granted under this        Agreement if and to the extent that the security granted under this Agreement secures any liability        of  a  Loan  Party  which  is  an  Affiliate  of  any  German  Guarantor  (other  than  such  German        Guarantor’s Wholly Owned Subsidiaries) (each, a “Secured Obligor”) and if and to the extent that        a  payment  under  the  security  granted  under  this  Agreement  would  cause  such  German        Guarantor’s (or, where such German Guarantor is a GmbH & Co. KG, its general partner's) Net        Assets (determined pursuant to clause (c) below) to be reduced below zero, or further reduced if        already below zero (“Capital Impairment”).                            (c)   For the purposes of the calculation of the Net Assets, the following balance sheet        items shall be adjusted as follows:                                        (i)   if the registered share capital of any German Guarantor (or, where such              German  Guarantor  is  a  GmbH  &  Co.  KG,  of  its  general  partner)  is  not  fully  paid  up              (nicht voll eingezahlt), the relevant amount which is not paid up shall be deducted from              the  registered  share  capital  in  accordance  with  section  272  para.  1  sentence  2  of  the              German  Commercial  Code  (Handelsgesetzbuch)  to  the  extent  such  amount  is  not              demanded  or,  if  demanded,  to  the  extent  not  accounted  as  an  asset  of  such  German              Guarantor pursuant to section 272 para. 1 of the German Commercial Code;                                  (ii)  the amount of any increase of the stated share capital (Erhöhungen des              Stammkapitals) of any German Guarantor (or, where such German Guarantor is a GmbH              & Co. KG, of its general partner) after the date hereof that has been effected without the                                         65  CHAR1\1707916v5 





 






               prior written consent of the Administrative Agent, shall be deducted from the stated share              capital;                                  (iii)  loans provided to any German Guarantor by any of its direct or indirect              holding  companies  (other  than  any  direct  or  indirect  Subsidiaries  of  such  German              Guarantor) which by contractual provision or Law are subordinated to the Obligations or              are considered subordinated in insolvency proceedings, unless the waiver or contribution              of  such  loan  claim  would  give  rise  to  a  personal  liability  of  the  relevant  managing              director due to a breach of section 30 of the German Limited Liability Companies Act              (GmbHG)  and  provided  that  such  German  Guarantor  (A)  has,  as  consequence  of              enforcement of the security granted under this Agreement, a reimbursement claim against              the  relevant  lender of  such loan  which  can  be  set-off and  (B) is  entitled to set-off  this              reimbursement  claim  with  the  repayment  claim  under  such  loan  without  triggering  or              increasing the risk of any personal and/or criminal liability of any managing director or              member of the board of such German Guarantor; and                                  (iv)  liabilities  incurred  by  any  German  Guarantor  (or,  where  such  German              Guarantor is a GmbH & Co. KG, its general partner) in negligent or willful violation of              the Loan Documents shall be disregarded.                            (d)   The enforcement of the security granted under this Agreement shall initially be        excluded pursuant to clause (b) above if, no later than twenty (20) Business Days following the        Administrative Agent’s notification of its intention to enforce the security interest created under        this Agreement (the “Enforcement Notice”), the managing directors on behalf of each German        Guarantor have confirmed in writing to the Administrative Agent:                            (i)   to what extent the security granted under this Agreement is an up-stream              or cross-stream security described in clause (b) above; and                                        (ii)  which  amount  of  such  cross-stream  and/or  up-stream  guarantee  cannot              be enforced as it would cause the Net Assets of the German Guarantor (or, where such              German  Guarantor  is  a  GmbH  &  Co.  KG,  of  its  general  partner)  to  be  less  than  its              respective registered share capital (taking into account the adjustments set out in clause              (c)  above  and  the  realisation  duties  set  out  in  clause  (f)  below)  (the  “Management              Determination”)  and  such  confirmation  is  supported  by  a  reasonably  satisfactory              calculation;  provided,  that,  the  Administrative  Agent  shall  in  any  event  be  entitled  to              enforce  the  security  granted  under  this  Agreement  for  any  amounts  where  such              enforcement  would,  in  accordance  with  the  Management  Determination,  not  cause  the              German Guarantor’s, or, as the case may be, its general partner’s, Net Assets to be less              than (or to fall further below) the amount of its respective registered share capital (in each              case as calculated and adjusted in accordance with clause (c) above).                (e)   Following the Administrative Agent’s receipt of a Management Determination,        any further enforcement of the security granted under this Agreement (i.e., any enforcement to        which the Administrative Agent is not already entitled to pursuant to clause (f) below) shall be        excluded pursuant to clause (b) above. However, the further enforcement of the security granted        under this Agreement shall be limited only if the Administrative Agent receives within thirty (30)        Business Days upon its request following the Administrative Agent’s receipt of the Management        Determination  (i)  an  up-to  date  balance  sheet  together  and  (ii)  a  determination,  in  each  case        prepared  by  auditors  of  international  standard  and  reputation  appointed  by  each  applicable        German  Guarantor  either  confirming  the  Management  Determination  or  setting  out  deviations                                         66  CHAR1\1707916v5 





 






         from the Management Determination (the “Auditor’s Determination”), if and to the extent such        enforcement  would,  in  accordance  with  the  Auditor’s  Determination  cause  any  German        Guarantor’s (or, where such German Guarantor is a GmbH & Co. KG, its general partner’s) Net        Assets  to  be  less  than  (or  to  fall  further  below)  the  amount  of  its  respective  registered  share        capital  in  each  case  as  calculated  and  adjusted  in  accordance  with  clause  (c)  above.  If  any        German Guarantor fails to deliver an Auditor’s Determination within such thirty (30) Business        Day period after the Administrative Agent’s request, the Administrative Agent shall be entitled to        enforce the security granted under this Agreement without any limitation or restriction.                      (f)   In  addition,  each  German  Guarantor  (or,  where  such  German  Guarantor  is  a        GmbH & Co. KG, its general partner) shall upon request of the Administrative Agent realise, to        the extent legally permitted and commercially justifiable and to the extent necessary to satisfy the        Obligations, any and all of its assets which are not required for the German Guarantor’s business        (nicht betriebsnotwendig) that are shown in the balance sheet with a book value (Buchwert) that        is substantially lower than the market value of the relevant assets if, as a result of the enforcement        of  the  security  granted  under  this  Agreement,  its  Net  Assets  would  be  reduced  below  zero  or        further reduced if already below zero.                      (g)   The restrictions under clause (b) above shall not apply:                            (i)   to the extent that the security granted under this Agreement secures (A)              any  Loans  that  are  on-lent,  actually  disbursed  or  otherwise  passed  on  to  any  German              Guarantor or, as the case may be, its general partner, or any of its Subsidiaries and not              repaid or (B) any guarantees issued under this Agreement for the benefit of any German              Guarantor (or, where such German Guarantor is a GmbH & Co. KG, its general partner)              or any of its Subsidiaries which are not returned, in each case if and to the extent that the              German  Guarantor  or,  as  the  case  may  be,  its  general  partner  is  able  to  (1)  set-off  its              recourse claims (if any) against the loan obligation in respect of the amounts on-lent to it              or (2) otherwise use its recourse claims (if any) to settle or discharge the relevant loan              obligation under the Loan Documents;                            (ii)  if any German Guarantor (or, where such German Guarantor is a GmbH              & Co. KG, its general partner) (as dominated entity) is subject to a domination and/or              profit  transfer  agreement  (Beherrschungs-  und/oder  Gewinnabführungsvertrag)  (a              “DPTA”) with the Borrower or a Secured Obligor, whether directly or indirectly through              a chain of DPTAs between each company and its shareholder (or, as the case may be,              between  its  general  partner  and  its  shareholder),  and  has  a  fully  recoverable              compensation claim (Verlustausgleichsanspruch) pursuant to section 302 German Stock              Corporation Act (Aktiengesetz) against its dominating entity;                                        (iii)  if and to extent any German Guarantor has on the date of enforcement of              the  security  granted  under  this  Agreement  a  fully  recoverable  indemnity  or  claim  for              refund  (“vollwertiger  Gegenleistungs-  oder  Rückgewähranspruch”)  against  its              shareholder or a Secured Obligor;                                        (iv)  if  any  German  Guarantor  has  not  complied  with  any  of  its  obligations              pursuant to clauses (d) or (e) above; or                                        (v)   if and to the extent for any other reason (including, without limitation, as              a result of a change in the relevant rules of law or as a result of relevant jurisprudence of              the  German  supreme  court  (höchstrichterliche  Rechtsprechung))  such  limitation  is  not                                         67  CHAR1\1707916v5 





 






               necessary in order to protect the managing directors of any German Guarantor (or, where              such  German  Guarantor  is  a  GmbH  &  Co.  KG,  of  its  general  partner)  from  personal              liability pursuant to sections 30, 43 paragraph 3 or 43 paragraph 2 of the German Act on              Limited  Liability  Companies  (GmbH-Gesetz)  (each  as  amended,  supplemented  and/or              replaced from time to time).                                                        ARTICLE V.                                                               CONDITIONS PRECEDENT TO BORROWINGS         5.01  Condition to Effectiveness.         This  Agreement  shall  become  effective  upon  receipt  by  the  Administrative  Agent  of  executed  counterparts of this Agreement, properly executed by a Responsible Officer of each Loan Party and by  each Lender, together with all exhibits and schedules hereto.         5.02  Conditions to Initial Extensions of Credit.         The obligation of each Lender to make its initial Loans hereunder is subject to satisfaction of the  following conditions precedent:               (a)   Investment  Documents.   Receipt  by  the  Administrative  Agent  of  executed        counterparts of the Investment Documents, each properly executed by a Responsible Officer of        the signing Loan Party and each other party to such documents, including, without limitation, the        Share  Purchase  Agreement  and  the  ROFR  Side  Letter,  in  each  case  in  form  and  substance        reasonably satisfactory to the Administrative Agent and the Lenders.               (b)   Opinions of Counsel. Receipt by the Administrative Agent of favorable opinions        of  legal  counsel  to  the  Loan  Parties,  addressed  to  the  Administrative  Agent  and  each  Lender,        dated  as  of  the  Funding  Date,  and  in  form  and  substance  reasonably  satisfactory  to  the        Administrative Agent.               (c)   Financial  Statements;  Due  Diligence.   The  Administrative  Agent  shall  have        received  the  Audited  Financial  Statements,  the  Interim  Financial  Statements  and  such  other        reports,  statements  and  due  diligence  items  as  the  Administrative  Agent  or  any  Lender  shall        request.               (d)   No Material Adverse Change.  There shall not have occurred a material adverse        change since December 31, 2016 in the business, financial performance or condition, operations        (including the financial results thereof), assets or properties of the Borrower and its Subsidiaries,        taken as a whole.               (e)   Litigation.   There  shall  not  exist  any  action,  suit,  investigation  or  proceeding        pending or threatened (in writing) in any court or before an arbitrator or Governmental Authority        that  could  reasonably  be  expected,  either  individually  or  in  the  aggregate,  to  have  a  Material        Adverse Effect.               (f)   Organization Documents, Resolutions, Etc.  Receipt by the Administrative Agent        of the following, each of which shall be originals or facsimiles (followed promptly by originals),        in form and substance reasonably satisfactory to the Administrative Agent and its legal counsel:                                          68  CHAR1\1707916v5 





 






                     (i)   copies of the Organization Documents of each Loan Party certified to be              true and complete as of a recent date by (A) the appropriate Governmental Authority of              the state or other jurisdiction of its incorporation or organization, where applicable, or (B)              in  the  case  of  each  Costa  Rican  Loan  Party,  a  notarial  certification,  and  in  each  case              certified by a director, secretary or assistant secretary of such Loan Party to be true and              correct as of the Funding Date;                     (ii)  such  certificates  of  resolutions  or  other  action,  incumbency  certificates              and/or other certificates of Responsible Officers of each Loan Party as the Administrative              Agent may  require evidencing  the identity, authority  and capacity of  each  Responsible              Officer  thereof  authorized  to  act  as  a  Responsible  Officer  in  connection  with  this              Agreement and the other Investment Documents to which such Loan Party is a party;                      (iii) such  documents  and  certifications  as  the  Administrative  Agent  may              require  to  evidence  that  each  Loan  Party  is  duly  organized  or  formed,  and  is  validly              existing,  in  good  standing  and  qualified  to  engage  in  business  in  its  state  or  other              jurisdiction  of  organization  or  formation  (such  certifications  to  include,  without              limitation,  a  good  standing  certificate  of  the  Borrower  issued  by  the  Registrar  of              Corporate Affairs in the British Virgin Islands);                      (iv)  a registered agent’s certificate issued by the Borrower’s registered agent              in the British Virgin Islands and dated within one month of the Effective Date;                      (v)   a  copy of  a  resolution  of the  Board  of  Directors  of  each  Belgian  Loan              Party setting out the reasons it is considered that the entry into this Agreement, and in              particular the assumption of its guaranty obligations in accordance with Article IV, is of              benefit to such Belgian Loan Party;                                         (vi)  in relation to each Belgian Loan Party, a solvency certificate (attest niet-             faillissement/certificat  de  non-faillite)  and  an uittreksel  van  de  Kruispuntbank  voor              Ondernemingen/extrait  de  la  Banque  Carrefour  des  Entreprises,  each  dated  not  more              than three (3) Business Days prior to the Effective Date; and                                        (vii)  a  certificate  of  the  Articles  of  Incorporation  and  organizational              documents, and a recent certificación de personería jurídica, of each Costa Rican Loan              Party.                (g)   Perfection  and  Priority  of  Liens.   Receipt  by  the  Administrative  Agent  of  the        following:                     (i)   searches of Uniform Commercial Code filings (or the equivalent) in the              jurisdiction of formation of each Loan Party or where a filing would need to be made in              order to perfect the Administrative Agent’s security interest in the Collateral, copies of              the financing statements (or the equivalent) on file in such jurisdictions and evidence that              no Liens exist other than Permitted Liens;                     (ii)  Uniform Commercial Code (or the equivalent) financing statements for              each  appropriate  jurisdiction  as  is  necessary,  in  the  Administrative  Agent’s  sole              discretion,  to  perfect  the  Administrative  Agent’s  security  interest  in  the  Collateral  and              filings of the particulars of the relevant charges with the Registrar of Corporate Affairs in                                          69  CHAR1\1707916v5 





 






               the  British  Virgin  Islands  in  accordance  with  Section  163  of  the  BVI  Business              Companies Act, 2004;                     (iii) (A) all certificates evidencing any certificated Equity Interests pledged to              the Administrative Agent pursuant to any Pledge Agreement or any Security Agreement              other  than  the  Costa  Rican  Security  Trust  Agreement,  together  with  duly  executed  in              blank and undated stock powers attached thereto and (B) all certificates evidencing the              delivery of any share certificates of any Costa Rican Loan Party to the Trustee pursuant              to the Costa Rican Security Trust Agreement, together with the entries in each such Costa              Rican Loan Party’s Shareholders Registry Book and Shareholders Meeting Minutes Book              regarding the transfer of said secured shares to the Trustee;                     (iv)  searches  of  ownership  of, and  Liens  on,  the  Business  IP  Rights  of the              Loan Parties in the appropriate governmental offices;                     (v)   duly executed notices of grant of security interest in the form required by              the applicable Security Agreement as are necessary, in the Administrative Agent’s sole              discretion,  to  perfect  the  Administrative  Agent’s  security  interest  in  the  Business  IP              Rights of the Loan Parties;                     (vi)  such Qualifying Control Agreements as shall be necessary to cause the              Loan Parties to be in compliance with Section 7.18;                     (vii) to  the  extent  required  to  be  delivered  pursuant  to  the  terms  of  the              Collateral Documents, all instruments, documents and chattel paper in the possession of              any of the Loan Parties, together with allonges or assignments as may be necessary or              appropriate to perfect the Administrative Agent’s security interest in the Collateral; and                     (viii) in  the  case  of  any  personal  property  Collateral  located  at  a  premises              leased by a Loan Party, such Collateral Access Agreements as may be required by the              Administrative Agent.               (h)   Real Property Collateral.  Receipt by the Administrative Agent of Mortgages and        other Real Property Security Documents with respect to the fee interest of any Loan Party in each        real  property  identified  on  Schedule  6.20(a)  to  the  Disclosure  Letter  (other  than  any  Excluded        Property).               (i)   Evidence  of  Insurance.   Receipt  by  the  Administrative  Agent  of  copies  of        insurance policies or certificates of insurance of the Loan Parties evidencing liability and casualty        insurance meeting the requirements set forth in the Loan Documents, including, but not limited        to, naming the Administrative Agent as additional insured (in the case of liability insurance) or        Lender’s loss payee (in the case of hazard insurance) on behalf of the Secured Parties.               (j)   Funding Certificate.  Receipt by the Administrative Agent of a certificate signed        by a Responsible Officer of the Borrower certifying (i) that the conditions specified in Sections        5.02(d), (e) and (l) and Sections 5.03(a) and (b) have been satisfied, (ii) that the Borrower and its        Subsidiaries  (after  giving  effect  to  the  transactions  contemplated  hereby  and  the  incurrence  of        Indebtedness  related  thereto)  are  Solvent  on  a  consolidated  basis  and  (iii)  that  neither  the        Borrower  nor  any  Subsidiary  as  of  the  Funding  Date  has  outstanding  any  Disqualified  Capital        Stock.                                          70  CHAR1\1707916v5 





 






               (k)   Existing Indebtedness.                       (i)   All of the existing Indebtedness for borrowed money of the Loan Parties              and  their  respective  Subsidiaries  (including  all  Indebtedness  under  the  Existing  Credit              Agreement but, for the avoidance of doubt, excluding (A) Indebtedness permitted to exist              pursuant to Section 8.03 and (B) the Crown Predator Convertible Indebtedness), shall be              repaid in full and all security interests related thereto shall be terminated on or prior to the              Funding Date.                     (ii)  All of the Crown Predator Convertible Indebtedness shall be either (A)              repaid in full or (B) converted into Qualified Capital Stock of the Borrower, and in each              case all security interests related thereto shall be terminated on or prior to the Funding              Date.               (l)   Governmental and Third Party Approvals.  The Loan Parties and their respective        Subsidiaries  shall  have  received  all  governmental,  shareholder  and  third  party  consents  and        approvals necessary in connection with the transactions contemplated by this Agreement and the        other Investment Documents and the other transactions contemplated hereby and all applicable        waiting  periods  shall  have  expired  without  any  action  being  taken  by  any  Person  that  could        reasonably  be  expected  to  restrain,  prevent  or  impose  any  material  adverse  conditions  on  the        Loan Parties or any of their respective Subsidiaries or such other transactions or that could seek to        threaten  any  of  the  foregoing,  and  no  law  or  regulation  shall  be  applicable  which  could        reasonably be expected to have such effect.               (m)   Corporate Structure and Capitalization.  The capital and ownership structure and        the equity holder arrangements of the Borrower and its Subsidiaries on the Funding Date, on a        pro forma basis after giving effect to the transactions contemplated by the Investment Documents        shall be reasonably satisfactory to the Lenders.               (n)   Letter of Direction.  Receipt by the Administrative Agent of a satisfactory letter        of direction containing funds flow information with respect to the proceeds of the Loans to be        made on the Funding Date.               (o)   Fees.  Receipt by the Administrative Agent and the Lenders of any fees required        to be paid on or before the Funding Date.               (p)   Attorney Costs; Due Diligence Expenses. The Borrower shall have paid all fees,        charges and disbursements of counsel to the Administrative Agent incurred to the Funding Date,        plus  such  additional  amounts  of  such  fees,  charges  and  disbursements  as  shall  constitute  its        reasonable  estimate  of  such  fees,  charges  and  disbursements  incurred  or  to  be  incurred  by  it        through the closing proceedings (provided, that, such estimate shall not thereafter preclude a final        settling of accounts between the Borrower and the Administrative Agent).               (q)   Condition to Effectiveness.  The condition to effectiveness specified in Section        5.01 shall have been satisfied.               (r)   Equity Documents.  Receipt by the Administrative Agent of a certificate signed        by a Responsible Officer of the Borrower attaching executed copies of each document necessary        to effectuate the Share Purchase Agreement and authorize the Borrower’s entry into the ROFR        Side Letter, including, without limitation, (i) the Restated Articles, (ii) the Rights Agreement, (iii)                                          71  CHAR1\1707916v5 





 






         the Voting Agreement and (iv) ROFR Agreement, in each case as such terms are defined in the        Share Purchase Agreement and in form and substance satisfactory to the Lenders.               (s)   Termination  of  the  Banco  Davivienda  Documents.   The  Banco  Davivienda        Documents shall be terminated, all existing Indebtedness under the Banco Davivienda Documents        shall be repaid in full and all security interests related thereto shall be terminated on or prior to        the Funding Date.               (t)   Cancellation  of  Certain  Warrants.  The  Borrower  shall  have  cancelled  the        Relativity  Warrant,  JW  Opportunities  Warrant  and  JW  Partners  Warrant  on  or  prior  to  the        Funding Date, on terms and conditions satisfactory to the Administrative Agent.               (u)   Perceptive  Warrant.   The  Borrower  shall  have  committed  to  repurchase  fifty        percent (50%) of the Perceptive Warrant on or prior to the Funding Date on terms and conditions        satisfactory to the Administrative Agent and the Lenders, and the Lenders shall have purchased        the other fifty percent (50%) of the Perceptive Warrant from Perceptive Credit Holdings, LP on        or prior to the Funding Date on terms and conditions satisfactory to the Administrative Agent and        the Lenders.                (v)   Equity Purchases.  The Lenders shall have purchased (i) 73,560 Class A ordinary        shares of the Borrower from Antoun Nabhan, (ii) 13,580 Class A ordinary shares of the Borrower        from  Marco  Chacon  Quiros  and  (iii)  80,000  Class  A  ordinary  shares  of  the  Borrower  from        Medical Device Holdings, S.A., in each case, on or prior to the Funding Date and on terms and        conditions satisfactory to the Administrative Agent and the Lenders.                (w)   Other.   Receipt  by  the  Administrative  Agent  and  the  Lenders  of  such  other        documents,  instruments,  agreements  and  information  as  reasonably  requested  by  the        Administrative  Agent  or  any  Lender,  including,  but  not  limited  to,  information  regarding        litigation, tax, accounting, labor, insurance, pension liabilities (actual or contingent), real estate        leases,  material  contracts,  debt  agreements,  property  ownership,  environmental  matters,        contingent liabilities and management of the Borrower and its Subsidiaries.         Without  limiting  the  generality  of  the  provisions  of  the  last  paragraph  of  Section  10.03,  for  purposes of determining compliance with the conditions specified in this Section 5.02, each Lender that  has  funded  its  Term  A  Loan  on  the Funding  Date  shall be deemed to  have  consented  to,  approved  or  accepted or to be satisfied with, each document or other matter required thereunder to be consented to or  approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received  notice from such Lender prior to the proposed Funding Date specifying its objection thereto.         5.03  Conditions to all Borrowings.         The obligation of each Lender to honor any Loan Notice is subject to the following conditions  precedent:               (a)   The representations and warranties of the Borrower and each other Loan Party        contained  in  Article  VI  or  any  other  Investment  Document,  or  which  are  contained  in  any        document furnished at any time under or in connection herewith or therewith, shall be true and        correct  in  all  material  respects  (and  in  all  respects  if  any  such  representation  or  warranty  is        already qualified by materiality or reference to Material Adverse Effect) on and as of the date of        such Borrowing, except to the extent that such representations and warranties specifically refer to        an  earlier  date, in  which case  they shall  be  true  and correct in all material  respects (and in  all                                         72  CHAR1\1707916v5 





 






         respects if any such representation or warranty is already qualified by materiality or reference to        Material Adverse Effect) as of such earlier date, and except that for purposes of this Section 5.03,        the representations and warranties contained in subsections (a) and (b) of Section 6.05 shall be        deemed  to  refer  to  the  most  recent  statements  furnished  pursuant  to  clauses  (a)  and  (b),        respectively, of Section 7.01.               (b)   No Default or Event of Default shall exist, or would result from such proposed        Borrowing or from the application of the proceeds thereof.               (c)   With respect to any Loan Notice requesting a Borrowing of Term B-1 Loans, the        requested Borrowing shall occur during the Term B-1 Availability Period.               (d)   With respect to any Loan Notice requesting a Borrowing of Term B-2 Loans, the        requested Borrowing shall occur during the Term B-2 Availability Period.               (e)   With respect to any Loan Notice requesting a Borrowing of Term B-3 Loans, the        requested Borrowing shall occur during the Term B-3 Availability Period.               (f)   With respect to any Loan Notice requesting a Borrowing of Term B-4 Loans, the        requested Borrowing shall occur during the Term B-4 Availability Period.               (g)   With respect to any Loan Notice requesting a Borrowing of Term C Loans, the        requested Borrowing shall occur during the Term C Availability Period.               (h)   The Administrative Agent shall have received a Loan Notice in accordance with        the requirements hereof.         Each Loan Notice submitted by the Borrower shall be deemed to be a representation and warranty  that the conditions specified in Sections 5.03(a) through (g) have been satisfied on and as of the date of  the applicable Borrowing.         5.04  Additional Conditions to Term C Borrowing.         The  obligation  of  each  Lender  to  honor  any  Loan  Notice  requesting  a  Borrowing  of  Term  C  Loans is subject to the additional condition precedent that such Borrowing shall be in compliance with  Section 2.14 in all respects.         Each Loan Notice submitted by the Borrower shall be deemed to be a representation and warranty  that the conditions specified in Sections 5.03(a) through (g) and 5.04 have been satisfied on and as of the  date of the applicable Borrowing.                                      ARTICLE VI.                                                                 REPRESENTATIONS AND WARRANTIES         On the Funding Date, and on each date thereafter on which the representations and warranties set  forth herein are required to be made under any Investment Document (or deemed to be made under any  Investment  Document),  the  Loan  Parties  represent  and  warrant  (in  each  case,  on  behalf  of  itself  and,  where applicable, its Subsidiaries only) to the Administrative Agent and the Lenders that:                                          73  CHAR1\1707916v5 





 






         6.01  Existence, Qualification and Power.         Each  Loan  Party  and  each  Subsidiary  (a)  is  duly  incorporated,  organized  or  formed,  validly  existing and in good standing under the Laws of the jurisdiction of its incorporation or organization, (b)  has all requisite power and authority and all requisite governmental licenses, authorizations, consents and  approvals to (i) own or lease its assets and carry on its business and (ii) execute, deliver and perform its  obligations under the Investment Documents to which it is a party and (c) is duly qualified and is licensed  and  in  good  standing  under  the  Laws  of  each  jurisdiction  where  its  ownership,  lease  or  operation  of  properties or the conduct of its business requires such qualification or license; except in each case referred  to in clauses (b)(i) or (c), to the extent that failure to do so could not reasonably be expected to have a  Material Adverse Effect.         6.02  Authorization; No Contravention.         The execution, delivery and performance by each Loan Party of each Investment Document to  which such Person is party have been duly authorized by all necessary corporate or other organizational  action, and do not (a) contravene the terms of any of such Person’s Organization Documents, (b) conflict  with or result in any breach or contravention of, or the creation of any Lien under, or require any payment  to  be  made  under  (i)  any  Contract  to  which  such  Person  is  a  party  or  affecting  such  Person  or  the  properties of such Person or any of its Subsidiaries or (ii) any order, injunction, writ or decree of any  Governmental  Authority  or  any  arbitral  award  to  which  such  Person  or  its  property  is  subject  or  (c)  violate, in any material respect, any Law (including, without limitation, Regulation U or Regulation X  issued  by  the  FRB),  except  with  respect  to  any  conflict,  breach,  contravention  or  payment  (but  not  creation  of  Liens)  referred  to  in  clause  (b)  to  the  extent  that  such  conflict,  breach,  contravention  or  payment could not reasonably be expected to have a Material Adverse Effect.         6.03  Governmental Authorization; Other Consents.         No approval, consent, exemption, authorization, or other action by, or notice to, or filing with,  any  Governmental  Authority  or  any  other  Person  is  necessary  or  required  in  connection  with  the  execution, delivery or performance by, or enforcement against, any Loan Party of this Agreement or any  other Investment Document other than (a) those that have already been obtained and are in full force and  effect,  (b)  filings  to  perfect  the  Liens  created  by  the  Collateral  Documents  and  (c)  those  approvals,  consents, exemptions, authorizations, actions, notices or filings described in the Collateral Documents.         6.04  Binding Effect.         Each  Investment  Document  has  been  duly  executed  and  delivered  by  each  Loan  Party  that  is  party thereto.  Each Investment Document constitutes a legal, valid and binding obligation of each Loan  Party that is party thereto, enforceable against each such Loan Party in accordance with its terms, subject  to  bankruptcy,  insolvency,  reorganization,  moratorium  and  similar  laws  affecting  the  enforceability  of  creditors’ rights generally and to general principles of equity (regardless of whether such enforceability is  considered in a proceeding in equity or at law).         6.05  Financial Statements; No Material Adverse Effect.               (a)   The Audited Financial Statements (i) were prepared in accordance with GAAP        consistently applied throughout the period covered thereby, except as otherwise expressly noted        therein, (ii) fairly present in all material respects the financial condition of the Borrower and its        Subsidiaries as of the date thereof and their results of operations for the period covered thereby in        accordance  with  GAAP  consistently  applied  throughout  the  period  covered  thereby,  except  as                                         74  CHAR1\1707916v5 





 






         otherwise  expressly noted  therein  and  (iii)  show  all  material  indebtedness  and  other  liabilities,        direct or contingent, of the Borrower and its Subsidiaries as of the date thereof, including material        liabilities for taxes, commitments and Indebtedness.               (b)   The  Interim  Financial  Statements  (i)  were  prepared  in  accordance  with  GAAP        consistently applied throughout the period covered thereby, except as otherwise expressly noted        therein, (ii) fairly present in all material respects the financial condition of the Borrower and its        Subsidiaries as of the date thereof and their results of operations for the period covered thereby,        subject, in the case of clauses (i) and (ii), to the absence of footnotes and to normal year-end audit        adjustments and (iii) show all material indebtedness and other liabilities, direct or contingent, of        the Borrower and its Subsidiaries as of the date thereof, including material liabilities for taxes,        material commitments and Indebtedness.               (c)   From the date of the Audited Financial Statements to and including the Funding        Date,  there  has  been  no  Disposition  by  any  Loan  Party  or  any  Subsidiary,  or  any  Involuntary        Disposition, of any material part of the business or property of any Loan Party or any Subsidiary,        and no purchase or other acquisition by any of them of any business or property (including any        Equity Interests of any other Person) material to any Loan Party or any Subsidiary, in each case,        which is not reflected in the foregoing financial statements or in the notes thereto and has not        otherwise been disclosed in writing to the Lenders on or prior to the Funding Date.               (d)   The financial statements delivered pursuant to Section 7.01(a) and (b) have been        prepared in accordance with GAAP (except as may otherwise be permitted under Section 7.01(a)        and (b)) and present fairly in all material respects (on the basis disclosed in the footnotes to such        financial statements) the consolidated financial condition, results of operations and cash flows of        the Borrower and its Subsidiaries as of the dates thereof and for the periods covered thereby.               (e)   Since the date of the Audited Financial Statements, there has been no event or        circumstance, either individually or in the aggregate, that has had or could reasonably be expected        to have a Material Adverse Effect.         6.06  Litigation.         There are no actions, suits, proceedings, claims or disputes pending or, to the knowledge of the  Loan Parties after due and diligent investigation, threatened in writing, at law, in equity, in arbitration or  before any Governmental Authority, by or against any Loan Party or any of its Subsidiaries or against any  of  their  properties  or  revenues  that  (a)  purport  to  affect  or  pertain  to  this  Agreement  or  any  other  Investment  Document,  or  any  of  the  transactions  contemplated  hereby  or  (b)  could  reasonably  be  expected, either individually or in the aggregate, to have a Material Adverse Effect.         6.07  No Default.               (a)   Neither any Loan Party nor any Subsidiary is in default under or with respect to        any Contract that could reasonably be expected to have a Material Adverse Effect.               (b)   No Default or Event of Default has occurred and is continuing.         6.08  Ownership of Property; Liens.               (a)   Each Loan Party and its Subsidiaries has good record and marketable title in fee        simple  to,  or  valid  leasehold  interests  in,  all  real  property  necessary  or  used  in  the  ordinary                                         75  CHAR1\1707916v5 





 






         conduct  of  its  business,  except  for  such  defects  in  title  as  could  not,  individually  or  in  the        aggregate, reasonably be expected to have a Material Adverse Effect.  The property of each Loan        Party and its Subsidiaries is subject to no Liens, other than Permitted Liens.               (b)   No  Loan  Party  nor  any  of  their  respective  Subsidiaries  (including,  for  the        avoidance  of  doubt,  any  Subsidiary  in  which  a  Loan  Party  holds  a  minority  interest)  has  any        direct or indirect interest in any real property located in the British Virgin Islands.         6.09  Environmental Compliance.         Except as could not reasonably be expected to have a Material Adverse Effect:               (a)   Each of the Business Facilities and all operations at the Business Facilities are in        compliance  with  all  applicable  Environmental  Laws,  and  there  is  no  violation  of  any        Environmental  Law  with  respect  to  the  Business  Facilities  or  the  Businesses, and  there  are no        conditions  relating  to  the  Business  Facilities  or  the  Businesses  that  could  give  rise  to  liability        under any applicable Environmental Laws.               (b)   None  of  the  Business  Facilities  contains,  or  has  previously  contained,  any        Hazardous  Materials  at,  on  or  under  the  Business  Facilities  in  amounts  or  concentrations  that        constitute or constituted a violation of, or could give rise to liability under, Environmental Laws.               (c)   Neither any Loan Party nor any Subsidiary has received any written notice of, or        inquiry  from  any  Governmental  Authority  regarding,  any  violation,  alleged  violation,  non-       compliance,  liability  or  potential  liability  regarding  environmental  matters  or  compliance  with        Environmental Laws with regard to any of the Business Facilities or the Businesses, nor does any        Responsible Officer of any Loan Party have knowledge or reason to believe that any such notice        will be received or is being threatened.               (d)   Hazardous Materials have not been transported or disposed of from the Business        Facilities, or generated, treated, stored or disposed of at, on or under any of the Business Facilities        or  any  other  location,  in  each  case  by  or  on  behalf  of  any  Loan  Party  or  any  Subsidiary  in        violation of, or in a manner that would be reasonably likely to give rise to liability under, any        applicable Environmental Law.               (e)   No judicial proceeding or governmental or administrative action is pending or, to        the knowledge of the Loan Parties, threatened in writing, under any Environmental Law to which        any Loan Party or any Subsidiary is or will be named as a party, nor are there any consent decrees        or other decrees, consent orders, administrative orders or other orders, or other administrative or        judicial requirements outstanding under any Environmental Law with respect to any Loan Party,        any Subsidiary, the Business Facilities or the Businesses.               (f)   There has been no release or threat of release of Hazardous Materials at or from        the Business Facilities, or arising from or related to the operations (including, without limitation,        disposal)  of  any  Loan  Party  or  any  Subsidiary  in  connection  with  the  Business  Facilities  or        otherwise in connection with the Businesses, in violation of or in amounts or in a manner that        could give rise to liability under Environmental Laws.                                          76  CHAR1\1707916v5 





 






         6.10  Insurance.               (a)   The properties of the Loan Parties and their respective Subsidiaries are insured        with financially sound and reputable insurance companies that are not Affiliates of the Borrower        or  any  Subsidiary,  in  such  amounts,  with  such  deductibles  and  covering  such  risks  as  are        customarily carried by companies engaged in similar businesses and owning similar properties in        localities where the applicable Loan Party or the applicable Subsidiary operates.  The insurance        coverage of the Loan Parties and their respective Subsidiaries as in effect on the Effective Date is        outlined as to carrier, policy number, expiration date, type, amount and deductibles on Schedule        6.10 to the Disclosure Letter.               (b)   The Borrower and its Subsidiaries maintain, if available, fully paid flood hazard        insurance on all real property that is located in a special flood hazard area and that constitutes        Collateral  on  such  terms  and  in  such  amounts  as  required  by  The  National  Flood  Insurance        Reform Act of 1994 or as otherwise required by the Administrative Agent.         6.11  Taxes.         The Loan Parties and their respective Subsidiaries have filed all federal, provincial, territorial and  state  income  and  other material  tax  returns  and  reports  required  to  be filed,  and  have paid  all federal,  provincial, territorial and state income and other material taxes, assessments, fees and other governmental  charges levied  or imposed  upon them or their  properties, income  or  assets  otherwise  due  and  payable,  except those which are being contested in good faith by appropriate proceedings diligently conducted and  for which adequate reserves have been provided in accordance with GAAP.  There is no proposed tax  assessment against any Loan Party or any Subsidiary that would, if made, have a Material Adverse Effect.   Neither any Loan Party nor any Subsidiary thereof is party to any tax sharing agreement with any Person  that is not a Loan Party.         6.12  ERISA Compliance.               (a)   Each Plan is in compliance in all material respects with the applicable provisions        of ERISA, the Internal Revenue Code and other federal or state laws.  Any Pension Plan that is        intended to be a qualified plan under Section 401(a) of the Internal Revenue Code has received a        favorable determination  letter from the Internal  Revenue Service  to the effect  that the  form  of        such Plan is qualified under Section 401(a) of the Internal Revenue Code and any trust related        thereto has been determined by the Internal Revenue Service to be exempt from federal income        tax under Section 501(a) of the Internal Revenue Code or an application for such a letter will be        timely submitted to the Internal Revenue Service for processing.  To the best knowledge of the        Loan Parties, nothing has occurred that would prevent, or cause the loss of, any such tax-qualified        status.               (b)   There are no pending or, to the best knowledge of the Loan Parties, threatened (in        writing) claims, actions or lawsuits, or action by any Governmental Authority, with respect to any        Plan that would reasonably be expected, either individually or in the aggregate, to have a Material        Adverse  Effect.   There  has  been  no  prohibited  transaction  or  violation  of  the  fiduciary        responsibility rules applicable with respect to any Plan that has resulted or would reasonably be        expected, either individually or in the aggregate, to result in a Material Adverse Effect.               (c)   (i)  No  ERISA  Event  has  occurred  and  neither  the  Borrower  nor  any  ERISA        Affiliate  is  aware  of  any  fact,  event  or  circumstance  that  would  reasonably  be  expected  to        constitute or result in an ERISA Event with respect to any Pension Plan, (ii) the Borrower and                                         77  CHAR1\1707916v5 





 






         each ERISA Affiliate has met any applicable requirements under the Pension Funding Rules in        respect of any Pension Plan, and no waiver of the minimum funding standards under the Pension        Funding Rules has been applied for or obtained by the Borrower or any ERISA Affiliate, (iii) as        of the most recent valuation date for any Pension Plan, the funding target attainment percentage        (as defined in Section 430(d)(2) of the Internal Revenue Code) is sixty percent (60%) or higher        and neither the Borrower nor any ERISA Affiliate knows of any facts or circumstances that could        reasonably  be expected  to cause the funding target attainment  percentage for any  such  plan to        drop below sixty percent (60%) as of the most recent valuation date, (iv) neither the Borrower nor        any  ERISA  Affiliate  has  incurred  any  liability  to  the  PBGC  with  respect  to  any  Pension  Plan        other  than for the  payment  of  any  premiums, and there  are  no premium  payments  which  have        become due that are unpaid, (v) neither the Borrower nor any ERISA Affiliate has engaged in a        transaction  that  could  be  subject  to  Section  4069  or  Section  4212(c)  of  ERISA  and  (vi)  no        Pension  Plan  has  been terminated  by  the  plan  administrator  thereof  nor  by  the  PBGC,  and  no        event  or  circumstance  has  occurred  or  exists  that  could  reasonably  be  expected  to  cause  the        PBGC to institute proceedings under Title IV of ERISA to terminate any Pension Plan.               (d)   Each Loan Party is not and will not be (i) an employee benefit plan subject to        Title I of ERISA, (ii) a plan or account subject to Section 4975 of the Internal Revenue Code; (iii)        an entity deemed to hold “plan assets” of any such plans or accounts for purposes of ERISA or        the Internal Revenue Code or (iv) a “governmental plan” within the meaning of ERISA.                            (e)   Each  Loan  Party  and  each  of  its  Subsidiaries  is  in  compliance  in  all  material        respects with all applicable Laws and requirements with respect to any Employee Benefit Non-       U.S.  Plan,  and  have  performed  in  all  material  respects  all  their  obligations  under  any  such        Employee Benefit Non-U.S. Plan.  No Employee Benefit Non-U.S. Plan Event has occurred or is        reasonably expected to occur that would reasonably be expected to result in material liability to        any  Loan  Party  or  any  of  its  Subsidiaries.   Any  Employee  Benefit  Non-U.S.  Plan  has  been        maintained  in  material  compliance  with  its  terms  and  with  the  requirements  of  any  and  all        applicable Laws, statutes, rules, regulations and orders and has been maintained, where required,        in  good  standing  with  applicable  regulatory  authorities,  except  as  would  not  reasonably  be        expected, either individually or in the aggregate, to result in a material liability to any Loan Party        or  any  of  its  Subsidiaries. Any  contributions required  to  be made with  respect to  a,  Employee        Benefit Non-U.S. Plan have been timely made. Neither the Borrower nor any of its Subsidiaries        has incurred any material obligation in connection with the termination of, or withdrawal from,        any  Employee  Benefit  Non-U.S.  Plan.  The  present  value  of  the  accrued  benefit  liabilities        (whether or not vested) under any Employee Benefit Non-U.S. Plan, determined as of the end of        the Borrower’s most recently ended fiscal year on the basis of reasonable actuarial assumptions,        did not exceed the current value of the assets of such Employee Benefit Non-U.S. Plan allocable        to such benefit liabilities.           6.13  Subsidiaries and Capitalization.               (a)   Set forth on Schedule 6.13(a) to the Disclosure Letter is a complete and accurate        list as of the Effective Date of each Subsidiary (including a designation of each Subsidiary that is        an Excluded Subsidiary as of the Effective Date), together with (i) jurisdiction of organization,        (ii) number of shares of each class of Equity Interests outstanding, (iii) number and percentage of        outstanding  shares  of  each  class  owned  (directly  or  indirectly)  by  any  Loan  Party  or  any        Subsidiary and (iv) number and effect, if exercised, of all outstanding options, warrants, rights of        conversion or purchase and all other similar rights with respect thereto.  The outstanding Equity        Interests of each Subsidiary are validly issued, fully paid and non-assessable.                                          78  CHAR1\1707916v5 





 






               (b)   Set forth on Schedule 6.13(b) to the Disclosure Letter is a true and complete table        showing the authorized and issued capitalization of the Borrower as of the Effective Date on a        fully diluted basis.  All issued and outstanding Equity Interests of the Borrower and each of its        Subsidiaries are duly authorized and validly issued, fully paid, non-assessable and such Equity        Interests were issued in compliance with all applicable Laws.  All issued and outstanding Equity        Interests of each Subsidiary are free and clear of all Liens.  As of the Effective Date, except as        described on Schedule 6.13(b) to the Disclosure Letter, there are no outstanding commitments or        other obligations of any Loan Party or any Subsidiary to issue, and no rights of any Person to        acquire,  any  shares  of  any  Equity  Interests  of  any  Loan  Party  or  any  of  their  respective        Subsidiaries.   Except  as  set  forth  on  Schedule  6.13(b)  to  the  Disclosure  Letter,  there  are  no        statutory or contractual preemptive rights, rights of first refusal, anti-dilution rights or any similar        rights  held  by  equity  holders  or  option  holders  of  any  Loan  Party.   There  are  no  agreements        (voting or otherwise) among any Loan Party’s equity holders with respect to any other aspect of        such Loan Party’s affairs, except as set forth on Schedule 6.13(b) to the Disclosure Letter.           6.14  Margin Regulations; Investment Company Act.               (a)   The  Borrower  is  not  engaged  and  will  not  engage,  principally  or  as  one  of  its        important activities, in the business of purchasing or carrying margin stock (within the meaning        of Regulation U issued by the FRB), or extending credit for the purpose of purchasing or carrying        margin stock.  Following the application of the proceeds of each Borrowing, not more than 25%        of  the  value  of  the  assets  (of  the  Borrower  only  or  of  the  Borrower  and  its  Subsidiaries  on  a        consolidated  basis)  subject  to  the  provisions  of  Section  8.01  or  Section  8.05  or  subject  to  any        restriction contained  in  any  agreement or instrument  between the  Borrower  and  any  Lender  or        any Affiliate of any Lender relating to Indebtedness and within the scope of Section 9.01(e) will        be margin stock.               (b)   None of any Loan Party or any Subsidiary is or is required to be registered as an        “investment company” under the Investment Company Act of 1940.         6.15  Disclosure.         Each  Loan  Party  has  disclosed  to  the  Administrative  Agent  and  the  Lenders  all  agreements,  instruments  and  corporate or  other restrictions to  which  it or any of its  Subsidiaries is  subject, and all  other matters known to it, that, either individually or in the aggregate, could reasonably be expected to  result  in  a  Material  Adverse  Effect.   No  report,  financial  statement,  certificate  or  other  information  furnished (whether written or oral) by or on behalf of any Loan Party to the Administrative Agent or any  Lender in connection with the transactions contemplated hereby and the negotiation of this Agreement or  delivered hereunder or under any other Loan Document (in each case, when taken as a whole, as modified  or supplemented by other information so furnished) contains any material misstatement of fact or omits to  state any fact necessary to make the statements therein, in the light of the circumstances under which they  were made, not misleading; provided, that, with respect to projected financial information, the Borrower  represents only that such information was prepared in good faith based upon assumptions it believed to be  reasonable at the time (it being understood that such projected financial information is not to be viewed as  facts, and that actual results during the period or periods covered by such projections may differ from the  projected results and such differences may be material).         6.16  Compliance with Laws.               (a)   Each  Loan  Party  and  each  Subsidiary  is  in  compliance  with  all  Laws  and  all        orders, writs, injunctions and decrees applicable to it or to its properties, except in such instances                                         79  CHAR1\1707916v5 





 






         in  which  (i)  such  Law  or  order,  writ, injunction  or  decree  is  being  contested  in  good  faith  by        appropriate  proceedings  diligently  conducted  or  (ii)  the  failure  to  comply  therewith  could  not        reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect.               (b)   (i)  Any  physician,  other  licensed  healthcare  professional,  or  any  other  Person        who is in a position to refer patients or other business to any Loan Party or any Subsidiary (each,        a “Referral Source”) who has a direct ownership, investment, or financial interest in any Loan        Party  or  any  Subsidiary  paid  fair  market  value  for  such  ownership,  investment  or  financial        interest;  (ii)  any  ownership  or  investment  returns  distributed  to  any  Referral  Source  is  in        proportion  to  such  Referral  Source’s  ownership,  investment  or  financial  interest;  and  (iii)  no        preferential  treatment  or  more  favorable  terms  were  or  are  offered  to  such  Referral  Source        compared  to  investors  or  owners  who  are  not in  a  position  to  refer  patients  or  other  business.        Neither any Loan Party nor any Subsidiary, directly or indirectly, has guaranteed a loan, made a        payment toward a loan or otherwise subsidized a loan for any Referral Source including, without        limitation, any loans related to financing the Referral Source’s ownership, investment or financial        interest in such Loan Party or any such Subsidiary.               (c)   Without  limiting  the  generality  of  the  foregoing,  except  where  noncompliance        individually or in the aggregate could not reasonably be expected, either individually or in the        aggregate, to result in a Material Adverse Effect:                     (i)   any  financial  relationships  between  or  among  any  Loan  Party  or  any              Subsidiary, on the one hand, and any Referral Source, on the other hand (A) comply with              all applicable Healthcare Laws including, without limitation, the Federal Anti-Kickback              Statute, the Stark Law and applicable state antikickback and self-referral laws; (B) reflect              fair  market  value,  have  commercially  reasonable  terms  and  were  negotiated  at  arm’s              length  and  (C)  do  not  obligate  the  Referral  Source  to  purchase,  use,  recommend  or              arrange for the use of any products or services of any Loan Party or any Subsidiary; and                     (ii)  each  Loan  Party  and  each  Subsidiary  have  implemented  policies  and              procedures to monitor, collect and report any payments or transfers of value to certain              healthcare providers and teaching hospitals in accordance with the Affordable Care Act              of  2010  and  its  implementing  regulations  and  any  applicable  state  disclosure  and              transparency laws.               (d)   Except  as  set  forth  on  Schedule  6.16(d)  to  the  Disclosure  Letter,  the        consummation  of  the  transactions  contemplated  hereby  and  the  exercise  by  the  Administrative        Agent or the Lenders of any right or protection set forth in this Agreement will not constitute a        breach  or  violation  of,  or  otherwise  affect  the  enforceability  or  approval  of,  any  (i)  Device        Clearance Applications, (ii) Product Authorizations or (iii) Regulatory Approvals.         6.17  Intellectual Property; Licenses, Etc.               (a)   Schedule  6.17(a)  to  the  Disclosure  Letter  contains,  with  respect  to  each  Loan        Party and each of its Subsidiaries:                     (i)   a  complete  and  accurate  list  of  all  applied  for,  issued,  or  registered              Patents (A) owned by, (B) constituting Material IP Rights and nonexclusively licensed to              or  (C)  exclusively  licensed  to  a  Loan  Party  or  one  of  its  Subsidiaries,  including  the              jurisdiction and patent number or patent application number;                                          80  CHAR1\1707916v5 





 






                     (ii)  a complete and accurate list of all material unregistered, applied for or              registered  Trademarks  (A)  owned  by,  (B)  constituting  Material  IP  Rights  and              nonexclusively  licensed  to  or  (C)  exclusively  licensed  to  a  Loan  Party  or  one  of  its              Subsidiaries, including the jurisdiction, trademark application or registration number and              the application or registration date; and                     (iii) a  complete  and  accurate  list  of  all  material  applied  for  or  registered              Copyrights  (A)  owned  by,  (B)  constituting  Material  IP  Rights  and  nonexclusively              licensed to or (C) exclusively licensed to a Loan Party or one of its Subsidiaries.               (b)   Except  for  non-exclusive  licenses  granted  in  the  ordinary  course  of  business,        each Loan Party and each of their Subsidiaries is the absolute beneficial owner of all right, title        and  interest  in  and  to  the  Business  IP  Rights  that  it  owns  (including,  without  limitation,  the        Business IP Rights indicated on Schedule 6.17(b) to the Disclosure Letter as being owned by such        Loan Party or Subsidiary), with good and marketable title (and no breaks in chain of title), free        and  clear of  any  Liens  or claims  of  any  kind  whatsoever  other  than  Permitted Liens  and  each        Loan  Party and  Subsidiary has the right to  use  all  its  Material  IP  Rights. Without limiting  the        foregoing, and except as set forth in Schedule 6.17(b) to the Disclosure Letter:                     (i)   other  than  as  permitted  by  Section  8.05,  no  Loan  Party,  nor  any  of its              Subsidiaries, has transferred ownership of or exclusively licensed any of its Material IP              Rights, in whole or in part, to any Person who is not a Loan Party;                     (ii)  other than (A) customary restrictions in in-bound licenses or out-bound              non-exclusive  licenses  of  IP  Rights  and  non-disclosure  agreements, (B)  as  would  have              been or is permitted by Sections 8.01 and 8.05 or (C) non-exclusive licenses granted in              the  ordinary  course  of  business,  there  are  no  covenants  not  to  sue,  permits,  grants,              licenses or other agreements or arrangements relating to such Loan Party’s or any of their              respective  Subsidiary’s  Material  IP  Rights,  including  any  development,  submission,              services,  research,  license  or  support  agreements,  which  bind,  obligate  or  otherwise              restrict such Loan Party or any of its Subsidiaries with respect to any Material IP Rights;                     (iii) (A)  there  are  no  pending  or,  to  the  knowledge  of  any  Loan  Party,              threatened (in writing) claims against any Loan Party or any of its Subsidiaries asserted              by any other Person relating to any Business IP Rights, including any claims of adverse              ownership, invalidity, infringement, misappropriation, violation or other opposition to or              conflict  with  such  Business  IP  Rights  that  could  reasonably  be  expected,  either              individually  or  in  the  aggregate,  to  have  a  Material  Adverse  Effect  and  (B)  except  as              could  not  reasonably  be  expected,  either  individually  or  in  the  aggregate,  to  have  a              Material Adverse Effect, there are no pending or, to the knowledge of any Loan Party,              threatened  (in  writing)  claims  against  any  Loan  Party  or  any  of  their  respective              Subsidiaries and no Loan Party or any of their respective Subsidiaries have received any              written  notice  from  any  Person  that  any  Loan  Party’s  or  any  Subsidiary’s  business              and/or the use of any Business IP Rights or any Product, Product Commercialization and              Development  Activities  or  Product  Assets  infringes  upon,  violates  or  constitutes  a              misappropriation of, or may infringe upon, violate or constitute a misappropriation of, or              otherwise  interfere  with  any  IP  Rights  of  any  other  Person  or  otherwise  offering  a              license with respect to any Product;                     (iv)  the Loan Parties have no knowledge that any Business IP Right is being              infringed, violated, misappropriated or otherwise used by any other Person without the                                         81  CHAR1\1707916v5 





 






               express authorization  of the  Loan  Parties  and,  without  limiting  the  foregoing, no  Loan              Party  nor  any  Subsidiary  has  put  any  other  Person  on  notice  of  actual  or  potential              infringement, violation or misappropriation of any Business IP Rights and no Loan Party              nor  any  Subsidiary  has  initiated  the  enforcement  of  any  claim  with  respect  to  any              Business IP Rights;                     (v)   all relevant current and former employees and contractors of each Loan              Party and each Subsidiary who were or are involved in the creation or development of              Business  IP  Rights  have  executed  written  confidentiality  and  invention  assignment              contracts with such Loan Party or such Subsidiary substantially in the form provided to              the Administrative Agent’s counsel;                     (vi)  the  operation  of  each  Loan  Party’s  and  each  Subsidiary’s  business              and/or the use by each Loan Party and each of their Subsidiaries of any of their respective              Business IP Rights, Products, Product Commercialization and Development Activities or              Product  Assets  does  not  breach,  violate,  infringe  or  interfere  with  or  constitute  a              misappropriation of any valid rights arising under any IP Rights of any other Person that              could  reasonably  be  expected,  either  individually  or  in  the  aggregate,  to  result  in  a              Material Adverse Effect.               (c)   The Business IP Rights are subsisting, valid, unexpired, enforceable and have not        been abandoned.  With respect to the owned Business IP Rights consisting of Patents, except as        set forth in Schedule 6.17(b) to the Disclosure Letter and without limiting the representations and        warranties in clause (b):                     (i)   none  of  the  Patents  or  the  Inventions  claimed  in  any  such  Patent  have              been  dedicated  to  the  public  except  as  a  result  of  intentional  decisions  made  by  the              applicable  Loan  Party  or  Subsidiary  and  no  Loan  Party,  Subsidiary  nor  any  of  their              respective  predecessors-in-interest  has  filed  any  disclaimer  (other  than  a  terminal              disclaimer) or filed any other voluntary reduction in the scope of the Inventions claimed              in such Patents;                     (ii)  no Loan Party, Subsidiary, nor, to the knowledge of the Loan Parties, any              prior  owner  of  any  Patent  or  any  of  their  respective  agents  or  representatives  have              engaged  in  any  conduct,  or  omitted  to  perform  any  necessary  act,  the  result  of  which              would invalidate or render unpatentable or unenforceable any Patent, except as could not              reasonably be expected, either individually  or in the aggregate, to result in a  Material              Adverse Effect;                     (iii) all maintenance fees,  annuities,  and the like due or  payable  on  or  with              respect to any Patents have been timely paid, except as could not reasonably be expected,              either individually or in the aggregate, to result in a Material Adverse Effect;                     (iv)  no  Patents  are  or  have  been  the  subject  of  any  re-examination,              opposition, any other pre- or post-grant proceedings or of any administrative, arbitration,              judicial  or  other  proceeding,  nor  is  any  Loan  Party  aware  of  any  basis  for  any  such              interference,  re-examination,  opposition,  inter  partes  review,  post  grant  review  or  any              other pre- or post-grant proceedings, judicial proceeding or other proceeding;                     (v)   no  Loan  Party  or  Subsidiary  has  received  any  written  notice  asserting              that any Patents are invalid, unpatentable or unenforceable; and                                         82  CHAR1\1707916v5 





 






                     (vi)  if  any  Patent  is  terminally  disclaimed  to  another  patent  or  patent              application,  all  patents  and  patent  applications  subject  to  such  terminal  disclaimer  are              included in the Collateral.               (d)   Schedule 6.17(d) to the Disclosure Letter sets forth an accurate list of all Material        IP  Rights,  together  with  an  indication  as  to  whether  the  applicable  Loan  Party  or  applicable        Subsidiary owns or has an exclusive or nonexclusive license to such Material IP Rights.               (e)   None of the IP Rights are subject to any license grant by any Loan Party or any        Subsidiary or similar arrangement, except for (i) license grants solely between the Loan Parties,        (ii)  those  license  grants  disclosed  on  Schedule  6.17(e)  to  the  Disclosure  Letter  and  (iii)  non-       exclusive licenses permitted by Section 8.05 granted in the ordinary course of business.         6.18  Solvency.         The Borrower and its Subsidiaries are Solvent, on a consolidated basis.         6.19  Perfection of Security Interests in the Collateral.         The Collateral Documents create valid security interests in, and Liens on, the Collateral purported  to  be  covered  thereby,  which  security  interests  and  Liens  will  be,  upon  the  timely  and  proper  filings,  deliveries  and  other  actions  contemplated  in  the  Collateral  Documents  perfected  security  interests  and  Liens  (to  the  extent  that  such  security  interests  and  Liens  can  be  perfected  by  such  filings,  deliveries,  notations and other actions), prior to all other Liens other than Permitted Liens.         6.20  Business Locations.         Set forth on Schedule 6.20(a) to the Disclosure Letter is a list of all real property that is owned or  leased by the Loan Parties as of the Effective Date (with (x) a designation of each real property that is  Excluded Property and (y) a designation as to whether such real property is owned or leased).  Set forth  on Schedule 6.20(b) to the Disclosure Letter is the tax payer identification number (or foreign equivalent)  and organizational identification number (or foreign equivalent) of each Loan Party as of the Effective  Date.  The exact legal name and state of organization (or foreign equivalent) of (a) the Borrower is as set  forth on the signature pages hereto and (b) each Guarantor is (i) as set forth on the signature pages hereto,  (ii) as set forth on the signature pages to the Joinder Agreement pursuant to which such Guarantor became  a party hereto or (iii) as may be otherwise disclosed by the Loan Parties to the Administrative Agent in  accordance with Section 8.12(c).  Set forth on Schedule 6.20(c) to the Disclosure Letter are the locations  of  all  inventory,  equipment  and  other  tangible  personal  property  of  each  BVI  Loan  Party,  as  of  the  Effective Date.  Set forth on Schedule 6.20(d) to the Disclosure Letter are the locations of all inventory,  equipment and other tangible personal property of (x) each Belgian Loan Party and (y) each Loan Party  located in the Kingdom of Belgium, in each case, as of the Effective Date.  Set forth on Schedule 6.20(e)  to the Disclosure Letter are the locations of all inventory, equipment and other tangible personal property  of (x) each Costa Rican Loan Party and (y) each Loan Party located in the Republic of Costa Rica, in each  case, as of the Effective Date.  Set forth on Schedule 6.20(f) to the Disclosure Letter are the locations of  all inventory, equipment and other tangible personal property of (x) each Brazilian Loan Party and (y)  each  Loan  Party  located  in  the  Federative  Republic  of  Brazil,  in  each  case,  as  of  the  Effective  Date.   Except as set forth on Schedule 6.20(g) to the Disclosure Letter, no Loan Party has during the five years  preceding the Effective Date (x) changed its legal name, (y) changed its state of organization (or foreign  equivalent) or (z) been party to a continuation, merger, amalgamation, consolidation or other change in  structure.                                          83  CHAR1\1707916v5 





 






         6.21  Sanctions  Concerns;  Anti-Corruption  Laws;  PATRIOT  Act;  Anti-Money  Laundering  Laws.               (a)   Sanctions Concerns.  No Loan Party, nor any Subsidiary, nor, to the knowledge        of  the  Loan  Parties  and  their  respective  Subsidiaries,  any  director,  officer,  employee,  agent,        affiliate or representative thereof, is an individual or entity that is, or is owned or controlled by,        any individual or entity that is (i) the subject or target of any Sanctions, (ii) included on OFAC’s        List of Specially Designated Nationals, HMT’s Consolidated List of Financial Sanctions Targets        and the Investment Ban List, or any similar list enforced by any other relevant sanctions authority        or (iii) located, organized or resident in a Designated Jurisdiction.               (b)   Anti-Corruption Laws.  The Loan Parties and their respective Subsidiaries have        conducted their business in material compliance with the United States Foreign Corrupt Practices        Act  of  1977,  the  UK  Bribery  Act  2010  and  other  similar  anti-corruption  legislation  in  other        jurisdictions applicable to any Loan Party or any Subsidiary, and  have instituted and maintained        policies and procedures designed to promote and achieve compliance with such laws.               (c)   PATRIOT Act.  To the extent applicable, each Loan Party and each Subsidiary is        in compliance, in all material respects, with (i) the Trading with the Enemy Act, as amended, and        each of the foreign assets control regulations of the United States Treasury Department (31 CFR,        Subtitle B, Chapter V, as amended) and any other enabling legislation or executive order relating        thereto and (ii) the Act.               (d)   Anti-Money Laundering Laws.  No Loan Party, nor any Subsidiary, nor, to the        knowledge of the Loan Parties and their respective Subsidiaries, any director, officer, employee,        agent,  affiliate  or  representative  thereof,  (i)  has  been  found  in  violation  of,  charged  with,  or        convicted  of,  money  laundering,  drug  trafficking,  terrorist  related  activities  or  other  money        laundering predicate crimes under the Currency and Foreign Transactions Reporting Act of 1970        (otherwise known as the Bank Secrecy Act), the Act or any other United States law or regulation        governing such activities (collectively, “Anti-Money Laundering Laws”) or any U.S. economic        sanctions violations, (ii) to each Loan Party’s actual knowledge after making due inquiry, is under        investigation by any Governmental Authority for possible violation of Anti-Money Laundering        Laws or any Sanctions violations, (iii) has been assessed civil penalties under any Anti-Money        Laundering Laws or any Sanctions or (iv) has had any of its funds seized or forfeited in an action        under  any  Anti-Money  Laundering  Law.   Each  Loan  Party  has  established  procedures  and        controls which it reasonably believes are adequate (and otherwise comply in all material respects        with  applicable  Law)  to  ensure  that  each  Loan  Party  and  each  Subsidiary  thereof  is  and  will        continue to be in compliance in all material respects with all applicable current and future Anti-       Money Laundering Laws.         6.22  Material Contracts.         Except for Organization Documents of the Loan Parties and their respective Subsidiaries, there  are  no  Material  Contracts  other  than  as  set  forth  on  Schedule  6.22  to  the  Disclosure  Letter  as  of  the  Effective Date.  Schedule 6.22 to the Disclosure Letter sets forth, with respect to each real estate lease  agreement to which any Loan Party or any Subsidiary is a party as of the Effective Date that constitutes a  Material Contract, the address of the subject property and the annual rental rate as of the Effective Date.  The consummation of the transactions contemplated by the Investment Documents and the exercise by the  Administrative Agent or the Lenders of any right or protection set forth in the Investment Documents will  not constitute a breach or violation of, or otherwise affect the enforceability of, or give rise to a right of  termination in favor of any party to any Material Contract.  Except as otherwise disclosed on Schedule                                         84  CHAR1\1707916v5 





 






   6.22 to the Disclosure Letter (or pursuant to Section 7.02(a)), all Material Contracts are in full force and  effect  without  material  modification  from  the  form  in  which  the  same  were  disclosed  to  the  Administrative Agent.  Except as set forth on Schedule 6.22 to the Disclosure Letter, there are no Material  Contracts which are non-assignable by their terms, or as a matter of law, or which prevent the granting of  a security interest therein.         6.23  Regulatory Approvals.               (a)   With  respect  to  the  Products,  the  Loan  Parties  hold  either  directly  or  through        licensees  and  agents,  all  Regulatory  Approvals  necessary  or  required  for  such  Loan  Party  and        each  of  its  Subsidiaries  to  conduct  all  current  Product  Commercialization  and  Development        Activities with respect to the Products.               (b)   Set forth on Schedule 6.23(b) to the Disclosure Letter is a complete and accurate        list of all Regulatory Approvals referred to in clause (a), setting forth (in reasonable detail and on        a Product-by-Product basis) the Loan Party that holds such Regulatory Approval and identifying        the product related to such Regulatory Approval.  All such Regulatory Approvals are (i) legally        and  beneficially  owned  exclusively  by  such  Loan  Party  identified  on  such  Schedule,  free  and        clear of all Liens other than Permitted Liens, (ii) validly registered and on file with the applicable        Regulatory  Authority  in  compliance  in  all  material  respects  with  all  registration,  filing  and        maintenance requirements (including any fee requirements) thereof and (iii) valid, enforceable, in        good standing and in full force and effect, with the applicable Regulatory Authority.               (c)   All regulatory filings required by any Regulatory Authority or in respect of any        Regulatory  Approval  or  Product  Authorization  with  respect  to  any  Product  or  any  Product        Commercialization and Development Activities have been made (including all required notices,        registrations  and  listings,  supplemental  applications  or  notifications,  reports  (including  field        alerts, Device reports or other reports of adverse experiences) and all other required filings with        respect to the Products or any related Product Commercialization and Development Activities),        and all such filings are complete and correct in all material respects and are in compliance in all        material respects with all applicable Laws.               (d)   Each Loan Party and each Subsidiary and to the knowledge of the Loan Parties,        each  of  their  licensees  and  agents is  in  compliance  in  all  material  respects  with  all  applicable        Laws  (including  all  Regulatory  Approvals  and  Product  Authorizations)  with  respect  to  each        Product as to which such Person conducts, directly or indirectly, any Product Commercialization        and Development Activities.               (e)   Except  as  set  forth  on  Schedule  6.23(e)  to  the  Disclosure  Letter,  and  without        limiting the generality of any other representation or warranty made by any Loan Party hereunder        or under any other Loan Document: (i) all Products comply in all material respects with (A) all        applicable  Laws  of  the  FDA  and  each  other  applicable  Regulatory  Authority,  whether  U.S.  or        non-U.S. and (B) all Product Authorizations and other Regulatory Authorizations; (ii) no Loan        Party nor any of their respective Subsidiaries nor, to the knowledge of any Loan Party, any of        their  respective  agents,  suppliers,  licensors  or  licensees  have  received  any  inspection  reports,        warning letters or notices or similar documents with respect to any Product from any Regulatory        Authority within the last three (3) years that asserts lack of compliance with any applicable Law        or Regulatory Approvals or other orders, injunctions or decrees; (iii) no Loan Party nor any of        their  respective  Subsidiaries  nor,  to  the  knowledge  of  any  Loan  Party,  any  of  their  respective        agents,  suppliers,  licensors  or  licensees  have  received  any  notification  from  any  Regulatory        Authority within the last three (3) years, asserting that any Product lacks a required Regulatory                                         85  CHAR1\1707916v5 





 






         Approval or  Product Authorization;  (iv) there is  no pending  regulatory  action,  investigation  or        inquiry  (other  than  non-material  routine  or  periodic  inspections  or  reviews)  against  any  Loan        Party, any of their respective Subsidiaries or, to the knowledge of any Loan Party, any of their        respective suppliers, licensors or licensees with respect to any Product and, to the knowledge of        any Loan Party, there is no reasonable basis for any adverse regulatory action against such Loan        Party or any of their respective Subsidiaries or, to the knowledge of any Loan Party, any of their        respective suppliers, agents, licensors  or licensees  with  respect to  any  Product and  (v) without        limiting  the  foregoing,  (A)  (1)  there  have  been  no  product  recalls,  safety  alerts,  corrections,        withdrawals, marketing  suspensions  or  removals  conducted, undertaken  or  issued  by any  Loan        Party or any Subsidiary, whether voluntary, at the request, demand or order of any Regulatory        Authority or otherwise, with respect to any Product within the last three (3) years, (2) no such        product  recall,  safety  alert,  correction,  withdrawal,  marketing  suspension  or  removal  has  been        requested, demanded or ordered by any Regulatory Authority within the last three (3) years, and,        to the knowledge of any Loan Party, there is no reasonable basis for the issuance of any such        product recall, safety alert, correction, withdrawal, marketing suspension or removal with respect        to any Product and (B) no criminal, injunctive, seizure, detention or civil penalty action has been        commenced or threatened in writing by any Regulatory Authority within the last three (3) years        with respect to or in connection with any Product, there are no consent decrees (including plea        agreements)  that  relate  to  any  Product  and,  to  the  knowledge  of  each  Loan  Party,  there  is  no        reasonable  basis  for  the  commencement  of  any  criminal  injunctive,  seizure,  detention  or  civil        penalty  action  by  any  Regulatory  Authority  relating  to  any  Product  or  for  the  issuance  of  any        consent decree.  To the knowledge of each Loan Party, no Loan Party nor any of their respective        Subsidiaries nor any of their respective agents, suppliers, licensees or licensors is employing or        utilizing the services of any individual who has been debarred or temporarily suspended under        any applicable Law.               (f)   Neither  any  Loan  Party  nor  any  of  their  respective  Subsidiaries,  nor,  to  the        knowledge of the Loan Parties, any of their respective officers, employees or agents, has made an        untrue statement of a material fact or fraudulent statements to the FDA or any other Regulatory        Authority,  failed  to  disclose  a  material  fact  required  to  be  disclosed  to  the  FDA  or  any  other        Regulatory Authority or committed an act, made a statement or failed to make a statement that, at        the time such disclosure was made (or was not made), could reasonably be expected to provide a        basis for the FDA or any other Regulatory Authority to invoke its policy respecting Fraud, Untrue        Statements  of  Material  Facts,  Bribery  and  Illegal  Gratuities,  set  forth  in  56  Fed.  Reg.  46191        (September 10, 1991) or any similar policy.               (g)   The  clinical,  preclinical,  safety  and  other  studies  and  tests  conducted  by  or  on        behalf of or sponsored by any Loan Party or any of their respective Subsidiaries, or in respect of        which any Products or Product candidates under development have participated, were (and if still        pending,  are)  being  conducted  materially  in  accordance  with  standard  medical  and  scientific        research procedures and all applicable Product Authorizations. No Loan Party nor any of their        respective Subsidiaries has received any notices or other correspondence from the FDA or any        other  Regulatory Authority  requiring  the  termination  or  suspension  of any  clinical,  preclinical,        safety  or  other  studies  or  tests  used  to  support  regulatory  clearance  of,  or  any  Product        Authorization or Regulatory Approval for, any Product.         6.24  Labor Matters.         There are no existing or threatened (in writing) strikes, lockouts or other labor disputes involving  any Loan Party or any Subsidiary that individually or in the aggregate could reasonably be expected to  have a Material Adverse Effect.  Hours worked by and payment made to employees of the Loan Parties                                         86  CHAR1\1707916v5 





 






   and  their  respective  Subsidiaries  are  not  in  violation  of  the  Fair  Labor  Standards  Act  or  any  other  applicable law, rule or regulation dealing with such matters, except for any such violations as could not  reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect.         6.25  EEA Financial Institutions.         No Loan Party is an EEA Financial Institution.         6.26  Representations as to Foreign Loan Parties.         Each Foreign Loan Party represents and warrants to the Administrative Agent and the Lenders  that:               (a)   Such Foreign Loan Party is subject to civil and commercial Laws with respect to        its obligations under this Agreement and the other Investment Documents to which it is a party        (collectively as to such Foreign Loan Party, the “Applicable Foreign Loan Party Documents” (it        being understood and agreed that the guarantees and security interests provided and granted by        any Belgian Loan Party are limited to those provided and granted in this Agreement, the Belgian        Share  Pledge  Agreement  and  the  Belgian  Receivables  Pledge  Agreement)),  and  the  execution,        delivery  and  performance  by  such  Foreign  Loan  Party  of  the  Applicable  Foreign  Loan  Party        Documents  constitute  and  will  constitute  private  and  commercial  acts  and  not  public  or        governmental acts.  Neither such Foreign Loan Party nor any of its property has any immunity        from  jurisdiction  of  any  court  or  from  any  legal  process  (whether  through  service  or  notice,        attachment prior to judgment, attachment in aid of execution, execution or otherwise) under the        laws of the jurisdiction in which such Foreign Loan Party is organized and existing in respect of        its obligations under the Applicable Foreign Loan Party Documents.               (b)   The Applicable  Foreign Loan  Party  Documents are in  proper legal form  under        the Laws of the jurisdiction in which such Foreign Loan Party is organized and existing for the        enforcement thereof against such Foreign Loan Party under the Laws of such jurisdiction, and to        ensure the legality, validity, enforceability, priority or admissibility in evidence of the Applicable        Foreign Loan Party Documents.  It is not necessary to ensure the legality, validity, enforceability,        priority  or  admissibility in  evidence of the  Applicable  Foreign  Loan  Party  Documents that the        Applicable Foreign Loan Party Documents be filed, registered or recorded with, or executed or        notarized before, any court or other authority in the jurisdiction in which such Foreign Loan Party        is organized and existing or that any registration charge or stamp or similar tax be paid on or in        respect  of  the  Applicable  Foreign  Loan  Party  Documents  or  any  other  document,  except  for        (i) any such filing, registration, recording, execution or notarization as has been made or is not        required to be made until the Applicable Foreign Loan Party Document or any other document is        sought to be enforced and (ii) any charge or tax as has been timely paid.               (c)   With respect to any Foreign Loan Party that becomes a party to this Agreement        after the Effective Date as contemplated by Section 7.12, there is no tax, levy, impost, duty, fee,        assessment  or  other  governmental  charge,  or  any  deduction  or  withholding,  imposed  by  any        Governmental Authority in or of the jurisdiction in which such Foreign Loan Party is organized        and existing either (i) on or by virtue of the execution or delivery of the Applicable Foreign Loan        Party Documents or (ii) on any payment to be made by such Foreign Loan Party pursuant to the        Applicable Foreign Loan Party Documents, except as has been disclosed to the Administrative        Agent.                                          87  CHAR1\1707916v5 





 






               (d)   The execution, delivery and performance of the Applicable Foreign Loan Party        Documents executed by such Foreign Loan Party are, under applicable foreign exchange control        regulations of the jurisdiction in which such Foreign Loan Party is organized and existing, not        subject  to  any  notification  or  authorization  except  (i) such  as  have  been  made  or  obtained  or        (ii) such  as  cannot  be  made  or  obtained  until  a  later  date  (provided  that  any  notification  or        authorization  described  in  clause  (ii) shall  be  made  or  obtained  as  soon  as  is  reasonably        practicable).         6.27  Royalty and Other Payments.         Except as set forth on Schedule 6.27 to the Disclosure Letter, as of the Effective Date, no Loan  Party nor any of their respective Subsidiaries is obligated to pay any royalty, milestone payment, deferred  payment or any other contingent payment in respect of any Product.                6.28  Non-Competes.         Neither the Borrower nor any other Loan Party nor any of their respective Subsidiaries, nor, to the  knowledge of any Loan Party, any of their respective directors, officers or employees, is subject to a non- compete  agreement  that  prohibits  or  will  interfere  with  any  of  the  Product  Commercialization  and  Development Activities, including the development, commercialization or marketing of any Product.                6.29  Internal Controls.         The  Borrower  acknowledges  that  its  management  is  responsible  for  the  preparation  and  fair  presentation  of  the  financial  statements  of  the  Borrower  and  each  of  its  Subsidiaries  provided  to  the  Administrative Agent or the Lenders pursuant to Sections 7.01 and 7.02, in each case, in accordance with  GAAP.  The  Borrower  has  designed,  implemented  and  maintained  internal  controls  relevant  to  the  preparation and fair presentation of financial statements that are free from material misstatement, whether  due to fraud or error.                                     ARTICLE VII.                                                                      AFFIRMATIVE COVENANTS         On  the  Funding  Date  and  thereafter,  so  long  as  any  Lender  shall  have  any  Commitment  hereunder,  any  Loan  or  other  Obligation  hereunder  shall  remain  unpaid  or  unsatisfied  (other  than  contingent indemnification obligations for which no claim has been asserted), the Loan Parties shall and  shall cause each Subsidiary to:         7.01  Financial Statements.         Deliver  to  the  Administrative  Agent,  in  form  and  detail  reasonably  satisfactory  to  the  Administrative Agent and the Required Lenders:               (a)   as soon as available, and in any event within one hundred and twenty (120) days        after the end of each fiscal year of the Borrower (or, if earlier, when required to be filed with the        SEC (or foreign equivalent)), a consolidated balance sheet of the Borrower and its Subsidiaries as        at the end of such fiscal year, and the related consolidated statements of income or operations,        changes in shareholders’ equity and cash flows for such fiscal year, setting forth in each case in        comparative form the figures for the previous fiscal year, all in reasonable detail and prepared in        accordance  with  GAAP,  audited  and  accompanied  by  a  report  and  opinion  of  an  independent                                         88  CHAR1\1707916v5 





 






         certified public accountant of nationally recognized standing acceptable to the Required Lenders,        which  report  and  opinion  shall  be  prepared  in  accordance  with  generally  accepted  auditing        standards and shall not be subject to any “going concern” or like qualification or exception or any        qualification or exception as to the scope of such audit; and               (b)   (i) as soon as available, and in any event within sixty (60) days after the end of        each  of  the  first  three  fiscal  quarters  of  each  fiscal  year  of  the  Borrower  (or,  if  earlier,  when        required  to  be filed  with  the  SEC (or foreign  equivalent)), a  consolidated balance  sheet of the        Borrower and its Subsidiaries as at the end of such fiscal quarter, and the related consolidated        statements of income or operations and cash flows for such fiscal quarter and for the portion of        the Borrower’s fiscal year then ended, setting forth in each case in comparative form the figures        for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of        the  previous  fiscal  year,  all  in  reasonable  detail  and  certified  by  a  Responsible  Officer  of  the        Borrower as fairly presenting in all material respects the financial condition, results of operations        and cash flows of the Borrower and its Subsidiaries in accordance with GAAP, subject only to        normal year-end audit adjustments and the absence of footnotes, and (ii) as soon as available, and        in any event within sixty (60) days after the end of the last fiscal quarter of each fiscal year of the        Borrower, a consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such        fiscal  quarter,  and  the  related  consolidated statements  of  income  or  operations  for  such  fiscal        quarter and for the Borrower’s fiscal year then ended, setting forth in each case in comparative        form the figures for the corresponding fiscal quarter of the previous fiscal year and the previous        fiscal  year,  all  in  reasonable  detail  and  certified  by  a  Responsible  Officer  of  the  Borrower  as        presenting management’s best estimate of the financial condition and results of operations of the        Borrower  and  its  Subsidiaries  in  accordance  with  GAAP,  subject  to  normal  year-end  audit        adjustments and the absence of footnotes.         7.02  Certificates; Other Information.         Deliver  to  the  Administrative  Agent,  in  form  and  detail  reasonably  satisfactory  to  the  Administrative Agent and the Required Lenders:               (a)   concurrently with the delivery of the financial statements referred to in Sections        7.01(a)  and  (b)(i),  (i)  a  duly  completed  Compliance  Certificate  signed  by  a  director,  the  chief        executive officer, chief financial officer, treasurer or controller which is a Responsible Officer of        the  Borrower,  including  (A)  information  regarding  the  amount  and  timing  of  all  Dispositions,        Involuntary Dispositions, Debt Issuances, Extraordinary Receipts and Acquisitions that occurred        during the period covered by such Compliance Certificate, (B) a certification as to whether the        Loan Parties and their respective Subsidiaries have performed and observed each covenant and        condition of the Loan Documents applicable to it during the period covered by the Compliance        Certificate (or, if not, a listing of the conditions or covenants that have not been performed or        observed and the nature and status of each such Default), (C) a certification of compliance with        the financial covenants set forth in Sections 8.16 and 8.17, including financial covenant analyses        and  calculation  for  the  period  covered  by  the  Compliance  Certificate,  (D)  a  listing  of  (I)  all        applications by any Loan Party, if any, for Copyrights, Patents or Trademarks made since the date        of  the  prior  certificate  (or,  in  the  case  of  the  first  such  certificate,  the  Effective  Date),  (II)  all        issuances  of  registrations  or  letters  on  existing  applications  by  any  Loan  Party  or  any  of  their        Subsidiaries  for  Copyrights,  Patents  and  Trademarks  received  since  the  date  of  the  prior        certificate (or, in the case of the first such certificate, the Effective Date), (III) all licenses of any        IP  Rights  (other than  non-exclusive licenses  permitted  by  Section 8.05  granted in the  ordinary        course of business) entered into by any Loan Party or any of their Subsidiaries since the date of        the prior certificate (or, in the case of the first such certificate, the Effective Date) and (IV) such                                         89  CHAR1\1707916v5 





 






         supplements  to  Schedules  6.17(a),  6.17(b),  6.17(d),  6.17(e)  and  6.22,  in  each  case,  to  the        Disclosure Letter as are necessary to cause such schedules to be true and complete as of the date        of  such  certificate,  (E)  the  insurance  binder  or  other  evidence  of  insurance  for  any  insurance        coverage of any Loan Party or any Subsidiary that was renewed, replaced or modified during the        period covered by such financial statements, (F) information regarding the deposit accounts and        other bank accounts and securities accounts of the Loan Parties and their Subsidiaries as of the        end  of  the  period  covered  by  such  Compliance  Certificate  and  (G)  information  regarding  all        Investments made by the Loan Parties and their Subsidiaries pursuant to Sections 8.02(c) as of the        end  of  the  period  covered  by  such  Compliance  Certificate,  (ii)  a  copy  of  management’s        discussion  and  analysis  with  respect  to  such  financial  statements,  (iii)  a  list  of  all  litigations,        arbitrations  or  governmental  investigations  or  proceedings  which  were  instituted  during  the        period covered by such financial statements or which, to the knowledge of any Loan Party, are        threatened  (in  writing)  against  any  Loan  Party  or  any  Subsidiary  which,  in  any  case,  could        reasonably be expected to result in losses and/or expenses (other than, for the avoidance of doubt,        legal  and  court  fees,  costs  and  expenses)  in  excess  of  the  Threshold  Amount,  together  with  a        description setting forth the details thereof and stating what action the applicable Loan Party or        Subsidiary has taken and proposes to take with respect thereto and (iv) information regarding, in        each case, to the extent occurring during the period covered by such financial statements, (A) the        termination of any Material Contract, (B) the receipt by any Loan Party or any of its Subsidiaries        of  any  notice  under  any  Material  Contract  (and  a  copy  thereof)  as  to  the  occurrence  of  any        material  breach  or  default  under  or  pursuant  to  such  Material  Contract  that  could  result  in        termination  thereof  or  a  material  liability  in  respect  thereof,  (C)  the  entering  into  of  any  new        Material  Contract  by  a  Loan  Party  or  any  of  its  Subsidiaries  (and  a  copy  thereof)  or  (D)  any        material amendment to a Material Contract (and a copy thereof);               (b)   as soon as available, and in any event within forty-five (45) days after the end of        each fiscal year of the Borrower, (i) the annual budget (or equivalent) and forecast (or equivalent)        of the Borrower and its Subsidiaries, on a consolidated basis, approved by the Board of Directors        of  the  Borrower  for  the  then  current  fiscal  year  and  forecast  period  as  then  prepared  by  the        Borrower,  in  each  case  together  with  such  supporting  materials  as  are  required  by  the        Administrative  Agent  and  in  form  reasonably  satisfactory  to  the  Administrative  Agent,        comprising the balance sheets, statements of income or operations and statements of cash flows        of the Borrower and its Subsidiaries on a quarterly basis for the then current fiscal year and on an        annual  basis  for  the  forecast  period  and  (ii)  a  certificate  of  the  chief  financial  officer  of  the        Borrower certifying that (A) such budget and forecast were prepared by the Borrower in good        faith, (B) the Borrower had at the time of preparation of the budget and forecast, and at all times        thereafter (including on and as of the date of delivery to the Administrative Agent of such budget        and forecast) has continued to have, a reasonable basis for all of the assumptions contained in        such budget and forecast and (C) such budget and forecast were prepared in accordance with, and        based upon, such assumptions;               (c)   promptly after the same are available, (i) copies of each annual report, proxy or        financial statement or other report or communication sent to the equityholders of any Loan Party,        (ii) copies of all annual, regular, periodic and special reports and registration statements which a        Loan  Party  may  file  or  be  required  to  file  with  the  SEC  under  Section  13  or  15(d)  of  the        Securities  Exchange  Act  of  1934,  and  not  otherwise  required  to  be  delivered  to  the        Administrative Agent pursuant hereto and (iii) copies of each Form S-1 Registration Statement        filed with the SEC (together with all exhibits and amendments thereto) and all related material        correspondence with the SEC;                                          90  CHAR1\1707916v5 





 






               (d)   as soon as available, copies of any detailed audit reports or management letters or        recommendations  submitted  to the  Board of  Directors  (or the  audit  committee of the  Board  of        Directors) of the Borrower or any Subsidiary by independent accountants in connection with the        accounts or books of the Borrower or any Subsidiary, or any audit of any of them;               (e)   as soon as available, and in any event within seven (7) Business Days of delivery        to the Board of Directors of the Borrower (or any committee of such Board of Directors), copies        of  all  statements,  reports  and  notices  (including  board  kits)  made  available  to  the  Borrower’s        Board  of  Directors  or  the holders  of  the  Borrower’s  Equity  Interests;  provided,  that,  any  such        material may be redacted by the Borrower to exclude information relating to the Administrative        Agent or the Lenders (including the Borrower’s strategy regarding the Loans) or material that is        subject to attorney-client privilege or contractual confidentiality obligations with third parties;               (f)   promptly after the furnishing thereof, copies of any statement or report furnished        to any holder of debt securities of any Loan Party or any Subsidiary thereof pursuant to the terms        of any indenture, loan or credit or similar agreement and not otherwise required to be furnished to        the Lenders pursuant to Section 7.01 or any other clause of this Section 7.02;               (g)   promptly, and in any event within five (5) Business Days after receipt thereof by        any  Loan  Party  or  any  Subsidiary  thereof,  (i)  copies  of  each  notice  or  other  correspondence        received  from  the  SEC  (or  comparable  agency  in  any  applicable  non-U.S.  jurisdiction)        concerning any investigation or possible investigation or other inquiry by such agency regarding        financial or other operational results of any Loan Party or any Subsidiary thereof and (ii) copies        of  any  material  written  correspondence  or  any  other  material  written  communication  from  the        FDA or any other regulatory body;               (h)   as soon as practicable, and in any event not later than the last Business Day of        each  month,  copies  of  the  most  recent  monthly  statements  for  each  deposit  account  and  other        bank account or securities account of each Loan Party;                (i)   promptly after the same are released, copies of all press releases;               (j)   promptly after filing the relevant petition with the relevant court, notice of any        decision of the board of directors or corresponding body of any Spanish Guarantor to request a        voluntary insolvency (“concurso voluntario”) or the filing of any notice foreseen under Article        5bis of the Spanish Insolvency Law; and               (k)   promptly,  such  additional  information  regarding  the  business,  financial  or        corporate  affairs  of  any  Loan  Party  or  any  Subsidiary,  or  compliance  with  the  terms  of  the        Investment  Documents,  as  the  Administrative  Agent  or  any  Lender  may  from  time  to  time        request.         Documents required to be delivered pursuant to Section 7.01 or Section 7.02 may be delivered  electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the  Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at  the  website  address  listed  on  Schedule  11.02  or  (ii)  on  which  such  documents  are  posted  on  the  Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Administrative  Agent  have  access  (whether  a  commercial,  third-party  website  or  whether  sponsored  by  the  Administrative Agent); provided, that: (x) the Borrower shall deliver paper copies of such documents to  the Administrative Agent or any Lender upon its request to the Borrower to deliver such paper copies  until  a  written  request  to  cease  delivering  paper  copies  is  given  by  the  Administrative  Agent  or  such                                         91  CHAR1\1707916v5 





 






   Lender  and  (y)  the  Borrower  shall  notify  the  Administrative  Agent  and  each  Lender  (by  facsimile  or  electronic  mail)  of  the  posting  of  any  such  documents  and  provide  to  the  Administrative  Agent  by  electronic mail electronic versions (i.e., soft copies) of such documents.  The Administrative Agent shall  have no  obligation to request the  delivery of  or  to maintain  paper  copies of  the  documents  referred to  above,  and  in  any event  shall  have no responsibility  to  monitor  compliance  by the  Borrower  with  any  such request for delivery by a Lender, and each Lender shall be solely responsible for requesting delivery  to it or maintaining its copies of such documents.         The Borrower hereby acknowledges that certain of the Lenders (each, a “Public Lender”) may  have personnel who do not wish to receive material non-public information with respect to the Borrower  or  its  Affiliates,  or  the  respective  securities  of  any  of  the  foregoing,  and  who  may  be  engaged  in  investment  and  other market-related  activities  with  respect  to  such  Persons’  securities.   The  Borrower  hereby  agrees  that  (1)  it  will  in  good  faith  identify  that  portion  of  the  materials  and/or  information  provided  by,  or  to  be  provided  by,  or  on  behalf  of  the  Borrower  hereunder  that  does  not  constitute  material non-public information with respect to the Borrower or its Affiliates or their respective securities  (the “Public Materials”) and (2) it will clearly and conspicuously mark all Public Materials “PUBLIC”  which,  at  a minimum, shall mean that  the word  “PUBLIC”  shall appear prominently  on the first page  thereof  (it  being  understood  that  by  marking  Public  Materials  “PUBLIC,”  the  Loan  Parties  shall  be  deemed to have authorized the Administrative Agent, any Affiliate thereof and the Lenders to treat such  Public Materials as not containing any material non-public information (although it may be sensitive and  proprietary) with respect to the Borrower or its securities for purposes of United States federal and state  securities laws (or any foreign equivalent) (provided, however, that, to the extent such Public Materials  constitute Information, they shall be treated as set forth in Section 11.07)).         7.03  Notices.               (a)   Promptly  (and  in  any  event,  within  two  (2)  Business  Days)  notify  the        Administrative Agent and each Lender of the occurrence of any Default.               (b)   Promptly  (and  in  any  event,  within  five  (5)  Business  Days)  notify  the        Administrative  Agent  and  each  Lender  of  any  matter  that  has  resulted  or  could  reasonably  be        expected to result in a Material Adverse Effect.               (c)   Promptly  (and  in  any  event,  within  five  (5)  Business  Days)  notify  the        Administrative Agent and each Lender of the occurrence of any ERISA Event.               (d)   Promptly  (and  in  any  event,  within  five  (5)  Business  Days)  notify  the        Administrative Agent and each Lender of any material change in accounting policies or financial        reporting practices by the Borrower or any Subsidiary.               (e)   Promptly  (and  in  any  event,  within  two  (2)  Business  Days)  notify  the        Administrative Agent and each Lender of the occurrence of any default or event of default under        any Permitted Senior Revolving Credit Document.               (f)   Promptly  (and  in  any  event,  within  five  (5)  Business  Days)  notify  the        Administrative Agent and each Lender of any litigation, arbitration or governmental investigation        or proceeding not previously disclosed by the Loan Parties which has been instituted or, to the        knowledge of any Loan Party, is threatened (in writing) against any Loan Party or any Subsidiary        or to which any of the properties of any thereof is subject which could reasonably be expected to        result in losses and/or expenses in excess of the Threshold Amount.                                          92  CHAR1\1707916v5 





 






               (g)   Promptly  (and  in  any  event,  within  five  (5)  Business  Days)  notify  the        Administrative  Agent  and  each  Lender  of  any  material  licensing  agreement  or  similar        arrangement entered into by any Loan Party or any of its Subsidiaries following such Loan Party        or such Subsidiary receiving a written claim from the party to such license agreement alleging        infringement of the IP Rights of another Person.         Each notice pursuant to clauses (a) through (g) of this Section 7.03 shall be accompanied by a  statement  of  a  Responsible  Officer  of  the  Borrower  setting  forth  details  of  the  occurrence  referred  to  therein  and  stating  what  action  the applicable  Loan  Party  has  taken  and  proposes  to  take  with  respect  thereto.  Each notice pursuant to Section 7.03(a) shall describe with particularity any and all provisions of  this Agreement and any other Investment Document that have been breached.         7.04  Payment of Obligations.         Pay and discharge, as the same shall become due and payable, all its obligations and liabilities,  including (a) all income and other material tax liabilities, assessments and governmental charges or levies  upon  it  or  its  properties  or  assets,  unless  the  same  are  being  contested  in  good  faith  by  appropriate  proceedings diligently conducted and adequate reserves in accordance with GAAP are being maintained  by the Loan Party or such Subsidiary, (b) all lawful claims which, if unpaid, would by law become a Lien  upon its property (other than Permitted Liens) and (c) all Indebtedness, as and when due and payable, but  subject  to  any  subordination  provisions  contained  in  any  instrument  or  agreement  evidencing  such  Indebtedness.         7.05  Preservation of Existence, Etc.               (a)   Preserve, renew and maintain in full force and effect its legal existence under the        Laws of the jurisdiction of its organization except in a transaction permitted by Section 8.04 or        Section 8.05.               (b)   Preserve, renew and maintain in full force and effect its good standing under the        Laws  of  the jurisdiction  of  its  organization, except  to the  extent the  failure  to do  so could  not        reasonably be expected to have a Material Adverse Effect.               (c)   Take  all  commercially  reasonable  action  to  maintain  all  rights,  privileges,        permits,  licenses  and  franchises  necessary  or  desirable  in  the  normal  conduct  of  its  business,        except to the extent that the failure to do so could not reasonably be expected to have a Material        Adverse Effect.         7.06  Maintenance of Properties.               (a)   Maintain,  preserve  and  protect  all  of  its  material  properties  and  equipment        necessary in the operation of its business in good working order and condition, ordinary wear and        tear excepted.               (b)   Make all necessary repairs thereto and renewals and replacements thereof, except        where  the  failure  to  do  so  could  not,  either  individually  or  in  the  aggregate,  reasonably  be        expected to have a Material Adverse Effect.               (c)   Use the standard of care typical in the industry in the operation and maintenance        of its facilities.                                          93  CHAR1\1707916v5 





 






         7.07  Maintenance of Insurance.               (a)   Maintain with financially sound and reputable insurance companies that are not        Affiliates  of  any  Loan  Party  or  any  Subsidiary  insurance  with  respect  to  its  properties  and        business against loss or damage of the kinds customarily insured against by Persons engaged in        the same or similar business, of such types and in such amounts as are customarily carried under        similar circumstances by such other Persons.               (b)   Without limiting the foregoing, (i) maintain, if available, fully paid flood hazard        insurance on all real property that is located in a special flood hazard area and that constitutes        Collateral,  on  such  terms  and  in  such  amounts  as  required  by  The  National  Flood  Insurance        Reform  Act  of  1994  or  as  otherwise  required  by  the  Administrative  Agent,  (ii)  furnish  to  the        Administrative Agent evidence of the renewal (and payment of renewal premiums therefor) of all        such policies prior to the expiration or lapse thereof and (iii) furnish to the Administrative Agent        prompt written notice of any redesignation of any such improved real property into or out of a        special flood hazard area.               (c)   Cause the Administrative Agent and its successors and/or assigns to be named as        lender’s loss payee or mortgagee as its interest may appear, and/or additional insured with respect        to any such insurance providing liability coverage or coverage in respect of any Collateral, and        cause each provider or broker of any such insurance to agree, by endorsement upon the policy or        policies issued by it or by independent instruments furnished to the Administrative Agent, that it        will  give  the  Administrative  Agent  fourteen  (14)  days  (or  such  lesser  amount  as  the        Administrative Agent may agree) prior written notice before any such policy or policies shall be        altered or canceled.         7.08  Compliance with Laws.         Comply  with  the  requirements  of  all  Laws  and  all  orders,  writs,  injunctions  and  decrees  applicable to it or to its business or property, except in such instances in which (a) such requirement of  Law  or  order,  writ,  injunction  or  decree  is  being  contested  in  good  faith  by  appropriate  proceedings  diligently  conducted  or  (b)  the  failure  to  comply  therewith  could  not  reasonably  be  expected,  either  individually or in the aggregate, to have a Material Adverse Effect.         7.09  Books and Records.               (a)   Maintain  proper  books  of  record  and  account  in  a  manner  to  allow  financial        statements to be prepared in accordance with GAAP consistently applied in respect of all material        financial  transactions  and  matters  involving  the  assets  and  business  of  such  Loan  Party  or        Subsidiary, as the case may be.               (b)   Maintain  such  books  of  record  and  account  in  material  conformity  with  all        applicable requirements of any Governmental Authority having regulatory jurisdiction over such        Loan Party or such Subsidiary, as the case may be.         7.10  Inspection Rights.               (a)   Permit  representatives and independent contractors of the Administrative Agent        and each Lender, all at the expense of the Loan Parties: (i) to meet on a regular or other basis with        any and all officers and employees of the Loan Parties and their respective Subsidiaries from time        to  time  and  upon  reasonable  advance  notice  to  the  applicable  Loan  Party  or  the  applicable                                         94  CHAR1\1707916v5 





 






         Subsidiary  and  during  normal  business  hours  for  the  purpose  of  consulting  with,  rendering        advice, recommendations and assistance to, and influencing the management of the Loan Parties        or  their  respective  Subsidiaries  or  obtaining  information  regarding  the  Loan  Parties’  or  any  of        their respective Subsidiaries’ operations, activities and prospects and expressing its views thereon        and (ii) to access the premises and inspect the books, records and properties of the Loan Parties        and their respective Subsidiaries upon reasonable advance notice to the Loan Parties and during        normal  business  hours;  provided,  that,  excluding  any  such  visits  and  inspections  during  the        continuation of an Event of Default, only one such visit and inspection per year shall be at the        Loan Parties’ expense (and only the Administrative Agent may exercise rights under this Section        7.10(a)); provided, further, that, when an Event of Default exists the Administrative Agent and        the Lenders (or any of their respective representatives or independent contractors) may do any of        the foregoing at the expense of the Loan Parties at any time during normal business hours and        without advance notice.               (b)   Consider, in good faith, the recommendations of the Administrative Agent and        the Lenders or their respective designated representatives in connection with the matters on which        they are consulted as described in clause (a) above, recognizing that the ultimate discretion with        respect to all such matters shall be retained by the Loan Parties.         7.11  Use of Proceeds.               (a)   Use the proceeds of the Term A Loans (i) to repay existing indebtedness on the        Funding  Date,  (ii)  for  investment  in  clinical  development  programs  and  the  expansion  of        commercial activities and (iii) for other general corporate purposes; provided, that, in no event        shall the proceeds of the Term A Loans be used in contravention of any Law or of any Investment        Document.               (b)   Use the proceeds of the Term B-1 Loans, Term B-2 Loans, the Term B-3 Loans,        Term B-4 Loans and Term C Loans (i) for investment in clinical development programs and the        expansion of commercial activities and (ii) for other general corporate purposes; provided, that, in        no event shall the proceeds of the Term B-1 Loans, Term B-2 Loans, Term B-3 Loans, Term B-4        Loans or Term C Loans be used in contravention of any Law or of any Investment Document.         7.12  Additional Subsidiaries.               (a)   Within thirty (30) days after the acquisition or formation of any Subsidiary (or        such  later  date  as  the  Administrative  Agent  may  agree  in  its  sole  discretion),  notify  the        Administrative  Agent  thereof  in  writing,  together  with  the  (i)  jurisdiction  of  organization  (or        foreign  equivalent),  (ii)  number  of  shares  of  each  class  of  Equity  Interests  outstanding,  (iii)        number and percentage of outstanding shares of each class owned (directly or indirectly) by any        Loan  Party  or  any  Subsidiary,  (iv)  number  and  effect,  if  exercised,  of  all  outstanding  options,        warrants, rights of conversion or purchase and all other similar rights with respect thereto and (v)        identification as to whether such Subsidiary is an Excluded Subsidiary; and               (b)   Within sixty (60) days (or such later date as the Administrative Agent may agree        in  its  sole  discretion)  after  (i)  the  acquisition  or  formation  of  any  Subsidiary  (other  than  any        Excluded  Subsidiary)  or  (ii)  the  date  on  which  any  Subsidiary  that  was  formerly  an  Excluded        Subsidiary ceases to be an Excluded Subsidiary, in each case, cause such Person to (A) become a        Guarantor by executing and delivering to the Administrative Agent a Joinder Agreement or such        other documents as the Administrative Agent shall reasonably request for such purpose and (B)        deliver to the Administrative Agent documents of the types referred to in Sections 5.02(f) and (g)                                         95  CHAR1\1707916v5 





 






         (in each case, with respect to any such Person that is a Foreign Subsidiary, unless waived by the        Administrative Agent in its sole discretion) and favorable opinions of counsel to such Person (or,        with respect to any such Person that is a Foreign Subsidiary, if customary in the jurisdiction of        organization of such Person, favorable opinions of counsel to the Administrative Agent) (which,        in  each  case,  shall  cover,  among  other  things,  the  legality,  validity,  binding  effect  and        enforceability  of  the  documentation  referred  to  in  clause  (A)),  all  in  form,  content  and  scope        reasonably satisfactory to the Administrative Agent.               (c)   on the Funding Date, cause each Subsidiary (other than any Excluded Subsidiary)        that was formed or acquired after the Effective Date but prior to the Funding Date to (i) become a        Guarantor by executing and delivering to the Administrative Agent a Joinder Agreement or such        other documents as the Administrative Agent shall reasonably request for such purpose and (ii)        deliver to the Administrative Agent documents of the types referred to in Sections 5.02(f) and (g)        and  favorable  opinions  of  counsel  to  such  Person  (which  shall  cover,  among  other  things,  the        legality, validity, binding effect and enforceability of the documentation referred to in clause (i)),        all in form, content and scope reasonably satisfactory to the Administrative Agent.         7.13  ERISA Compliance.         Do, and cause each of its ERISA Affiliates to do, each of the following: (a) maintain each Plan in  compliance in all material respects with the applicable provisions of ERISA, the Internal Revenue Code  and other federal or state law, (b) cause each Plan that is qualified under Section 401(a) of the Internal  Revenue Code to maintain such qualification, and (c) make any required contributions to any Plan subject  to Section 412, Section 430 or Section 431 of the Internal Revenue Code.         7.14  Pledged Assets.               (a)   Equity Interests.  Cause 100% of the issued and outstanding Equity Interests of        each  Subsidiary  directly  owned  by  a  Loan  Party  to  be  subject  at  all  times  to  a  first  priority,        perfected Lien in favor of the Administrative Agent (including as a parallel debt creditor), for the        benefit of the Secured Parties, pursuant to the terms and conditions of the Collateral Documents,        together with opinions of counsel and any filings and deliveries necessary in connection therewith        to  perfect  the  security  interests  therein,  all  in  form  and  substance  satisfactory  to  the        Administrative Agent.   It is  understood  and  agreed that the  Loan  Parties shall have thirty (30)        days after the acquisition of any Foreign Subsidiary after the Funding Date to comply with this        Section 7.14(a) with respect to such Loan Party’s pledge of its Equity Interests in such Foreign        Subsidiary.               (b)   Other  Property.   (i)  Cause  all  property  (other  than  Excluded  Property) of  each        Loan Party to be subject at all times to first priority perfected Liens, which Liens are superior in        right to any other Person (subject to Permitted Liens) (and, in the case of owned real property,        title insured Liens), in each case, in favor of the Administrative Agent (including as a parallel        debt creditor) to secure the Obligations pursuant to the Collateral Documents (and subject to the        terms and conditions of the Collateral Documents) or, with respect to any such property acquired        subsequent to the Funding Date, such other additional security documents as the Administrative        Agent shall request and, in connection with the foregoing, deliver to the Administrative Agent        such  other  documentation  as  the  Administrative  Agent  may  request  including  filings  and        deliveries necessary to perfect such Liens, Organization Documents, resolutions, Real Property        Security Documents and favorable opinions of counsel to such Person, all in form, content and        scope reasonably satisfactory to the Administrative Agent; and (ii) use commercially reasonable        efforts  to  obtain  and  deliver  to  the  Administrative  Agent  Collateral  Access  Agreements  with                                         96  CHAR1\1707916v5 





 






         respect  to  leased  real  property  to  the  extent  required  by  this  Agreement  and  the  Collateral        Documents.               (c)   Material  Contracts.   Ensure,  and  cause  each  of  their  respective  Subsidiaries  to        ensure, that at all times the exercise of the rights of the Administrative Agent or any Lender under        any Loan Document (including the realization, sale or assignment by the Administrative Agent or        a Lender of any Equity Interests in any Subsidiary directly owned by such Loan Party) would not        conflict  with  (i)  any  Material  Contract  to  which  any  Loan  Party  or  any  of  its  respective        Subsidiaries is a party or which is binding upon such Loan Party or such Subsidiary or any of        such Loan Party’s or such Subsidiary’s assets or (ii) any Loan Party’s Organization Documents.         7.15  Compliance with Material Contracts.         Comply in all respects with each Material Contract of such Person except where the failure to  comply,  either  individually  or  in  the  aggregate,  could  not  reasonably  be  expected  to  have  a  Material  Adverse Effect.         7.16  Maintenance of Regulatory Approvals, Contracts, IP Rights, Etc.         Each  Loan  Party  will,  and  will  cause  each  of  its  Subsidiaries  (to  the  extent  applicable)  to,  (a)  maintain  in  full  force  and  effect  all  Regulatory  Approvals  (including  the  Product  Authorizations),  contracts, or other rights necessary for the operations of such Loan Party’s or such Subsidiary’s business,  as  the  case  may  be,  including  in  respect  of  all  related  Product  Commercialization  and  Development  Activities, (b) promptly after any Loan Party has knowledge thereof, notify the Administrative Agent of  any product recalls, safety alerts, corrections, withdrawals, marketing suspensions or removals conducted,  to  be  undertaken  or  issued  by  such  Loan  Party,  any  of  their  respective  Subsidiaries  or  any  of  their  respective  agents,  suppliers,  licensors  or  licensees,  as  the  case  may  be,  whether  voluntary  or  at  the  request, demand or order of any Regulatory Authority or otherwise with respect to any Product, or the  occurrence of any act, event or omission that is reasonably likely to result in the undertaking or issuing of  any such action or item, (c) maintain in full force and effect, and pay all costs and expenses relating to (i)  all Material Contracts, (ii) all IP Rights owned or controlled by such Loan Party or any such Subsidiary  that  is  related  to  any  Product  or  Product  Commercialization  and  Development  Activities  or  otherwise  useful  in  or  material,  either  individually  or  in  the  aggregate,  to  the  business  of  any  Loan  Party  or  Subsidiary and (iii) all Product Assets owned or controlled by such Loan Party or any Subsidiary that are  used  in  or  necessary  for  related  Product  Commercialization  and  Development  Activities,  (d)  promptly  after  learning  thereof,  notify  the  Administrative  Agent  of  any  infringement  or  other  violation  by  any  Person  of  such  Loan  Party’s  or  any  of  its  Subsidiaries’  IP  Rights,  and  diligently  pursue  any  such  infringement or other violation, except in any specific circumstance where both (i) the Loan Parties are  able to demonstrate that it is not commercially reasonable to do so and (ii) where not doing so does not  materially  adversely  affect  any  Product or  the  Product  Commercialization  and  Development  Activities  related to such Product, (e) use commercially reasonable efforts to pursue and maintain in full force and  effect legal  protection for all  new IP  Rights  developed  or  controlled  by such Loan  Party  or  any  of  its  Subsidiaries,  as  the  case  may  be,  that  is  related  to  any  Product  or  Product  Commercialization  and  Development Activities or otherwise useful in or material, either individually or in the aggregate, to the  business  of  any  Loan  Party  or  Subsidiary  and  (f)  promptly  after  learning  thereof,  notify  the  Administrative  Agent  of  any  claim  by  any  Person  that  such  Loan  Party  or  any  of  its  Subsidiaries,  including in connection with any Product Commercialization and Development Activities, has infringed  upon any IP Rights of such Person.                                          97  CHAR1\1707916v5 





 






         7.17  Anti-Corruption Laws.         Conduct its business in compliance in all material respects with the United States Foreign Corrupt  Practices  Act  of  1977,  the  UK  Bribery  Act  2010  and  other  similar  anti-corruption  legislation  in  other  jurisdictions and maintain policies and procedures designed to promote and achieve compliance with such  laws.         7.18  Cash Management.               (a)   Maintain all deposit accounts (including, without limitation, the Specified Deposit        Account),  disbursement  accounts,  securities  accounts,  investment  accounts  (and  other  similar        accounts) and lockboxes located in the United States or the British Virgin Islands, in each case,        with a bank or financial institution that is acceptable to the Administrative Agent and ensure that        each  such account  or  lockbox  is  subject to  a  Qualifying  Control  Agreement  (each  such  deposit        account,  disbursement  account,  securities  account,  investment  account  (or  similar  account)  and        lockbox (a “Controlled Account”)), with all cash, checks and other similar items of payment in        such  account  or  lockbox  securing  payment  of  the  Obligations  and  such  Loan  Party  shall  have        granted  a  Lien  to  the  Administrative  Agent,  for  the  benefit  of  the  Secured  Parties,  over  such        Controlled Accounts;               (b)   Deposit promptly (and in any event no later than five (5) Business Days) all cash,        checks,  drafts  or  other  similar  items  of  payment  relating  to  or  constituting  payments  made  in        respect of any and all accounts and other rights and interests of each BVI Loan Party and each        U.S. Loan Party (including pursuant to clause (c) below) into Controlled Accounts;               (c)   To the extent that any Loan Party or any Subsidiary holds cash on hand (other        than cash maintained in a Controlled Account) in excess of (i) $5,000,000 on an individual basis        for each such Person or (ii) $10,000,000 in the aggregate when taken together with all other Loan        Parties and Subsidiaries, in each case, such excess amount shall, within five (5) Business Days be        (x)  deposited  into  a  Controlled  Account  or  (y)  in  the  case  of  Establishment  Labs  Sociedad        Anonima, deposited into the Specified Deposit Account, in each case, in compliance with clauses        (a) and (b) above; and               (d)   At  any  time  after  the  occurrence  and  during  the  continuance  of  an  Event  of        Default, at the request of the Administrative Agent, cause all payments constituting proceeds of        accounts of each BVI Loan Party, each U.S. Loan Party and each Costa Rican Loan Party to be        directed into lockbox accounts that are subject to Qualifying Control Agreements.         7.19  Post-Closing Obligations.               (a)  Within five (5) Business Days of the Funding Date (or such longer period of time        as may be agreed to by the Administrative Agent in its sole discretion), arrange for the filing of the        particulars  of  a  cessation  of  (i)  that  certain  charge  in  respect  of  the  property  of  the  Borrower        registered  on  September  29,  2016  with  identification  number  MTE6TZ  and  Perceptive  Credit        Holdings, LP as the trustee and (ii) that certain charge in respect of the property of the Borrower        registered on September 14, 2015 with identification number VPHPR3 and CPH TU, LP as the        chargee,  in  each  case  with  the  registrar  of  corporate  affairs  in  the  British  Virgin  Islands  in        accordance with section 165 of the BVI Business Companies Act, 2004.               (b)  Within  the  time  periods  set  forth  therefor  on  Schedule  7.19  (or  such  longer        periods of time as may be agreed to by the Administrative Agent in its sole discretion), deliver to                                         98  CHAR1\1707916v5 





 






         the  Administrative  Agent  such  other  documents,  instruments,  certificates  or  agreements  as  are        listed on Schedule 7.19 or take such other actions as are described on Schedule 7.19, in each case        in form and substance reasonably satisfactory to the Administrative Agent.         7.20  Compliance with Securities Laws.         Comply in all material respects with the Securities Act and the Exchange Act.                                    ARTICLE VIII.                                                                       NEGATIVE COVENANTS         On  the  Funding  Date  and  thereafter,  so  long  as  any  Lender  shall  have  any  Commitment  hereunder, any Loan or other Obligation (other than contingent indemnification obligations for which no  claim has been asserted) hereunder shall remain unpaid or unsatisfied, no Loan Party shall, nor shall it  permit any Subsidiary to, directly or indirectly:         8.01  Liens.         Create,  incur, assume  or  suffer  to  exist any  Lien  upon  any  of  its  property,  assets  or  revenues,  whether now owned or hereafter acquired, other than the following:               (a)   Liens pursuant to any Loan Document;               (b)   Liens existing on the Effective Date and listed on Schedule 8.01 to the Disclosure        Letter;               (c)   Liens  (other  than  any  Liens  imposed  under  ERISA)  for  taxes,  assessments  or        governmental charges  or levies not  yet  due  or  which are being contested in good faith  and  by        appropriate  proceedings  diligently  conducted,  if  adequate  reserves  with  respect  thereto  are        maintained on the books of the applicable Person in accordance with GAAP;               (d)   statutory  Liens  of  landlords  and  Liens  of  carriers,  warehousemen,  mechanics,        materialmen and suppliers and other Liens imposed by law or pursuant to customary reservations        or retentions of title arising in the ordinary course of business; provided, that, such Liens secure        only amounts not yet due and payable or, if due and payable, are unfiled and no other action has        been taken to enforce the same or are being contested in good faith by appropriate proceedings        for which adequate reserves determined in accordance with GAAP have been established;               (e)   pledges  or  deposits  in  the  ordinary  course  of  business  in  connection  with        workers’ compensation, unemployment insurance and other social security legislation, other than        any Lien imposed by ERISA;               (f)   deposits to secure the performance of bids, trade contracts and leases (other than        Indebtedness),  statutory  obligations,  surety  and  appeal  bonds,  performance  bonds  and  other        obligations of a like nature incurred in the ordinary course of business;               (g)   easements, rights-of-way,  restrictions and  other  similar  encumbrances affecting        real property which, in the aggregate, are not substantial in amount, and which do not in any case        materially detract from the value of the property subject thereto or materially interfere with the        ordinary conduct of the business of the applicable Person;                                         99  CHAR1\1707916v5 





 






               (h)   Liens securing judgments for the payment of money (or appeal or other surety        bonds relating to such judgments) not constituting an Event of Default under Section 9.01(h);               (i)   Liens securing Indebtedness permitted under Section 8.03(e); provided, that: (i)        such Liens do not at any time encumber any property other than the property financed by such        Indebtedness,  (ii)  the  Indebtedness  secured  thereby  does  not  exceed  the  cost  of  acquiring,        purchasing, constructing or improving such property (negotiated on an arm’s length basis) and        (iii) such Liens attach to such property concurrently with or within one hundred eighty (180) days        after the acquisition thereof (or, in the case of any such property owned by such Loan Party or        such Subsidiary as of the Effective Date, within one hundred eighty (180) days of the Effective        Date);               (j)   licenses,  sublicenses,  leases  or  subleases  (other  than  relating  to  intellectual        property)  granted  to  others  in  the  ordinary  course  of  business  not  interfering  in  any  material        respect with the business of any Loan Party or any Subsidiary;               (k)   bankers’ liens, rights of setoff and similar Liens incurred on deposits made in the        ordinary course of business;               (l)   Liens  of  a  Permitted  Senior  Revolving  Credit  Lender  on  Permitted  Senior        Revolving  Credit  Priority  Collateral  securing  only  the  Permitted  Senior  Revolving  Credit        Indebtedness  owing  to  such  Permitted  Senior  Revolving  Credit  Lender,  subject  to  compliance        with  the  terms  and  provisions  of  Section  8.03(g)  and  the  definition  of  “Permitted  Senior        Revolving Credit Indebtedness”;                (m)   solely  until  the  Funding  Date,  Liens  securing  Indebtedness  under  the  Existing        Credit Agreement;               (n)   Liens  on  fee  owned  real  property  of  the  Loan  Parties  securing  Indebtedness        permitted by Section 8.03(h);               (o)   any Lien existing on any property or asset prior to the acquisition thereof by the        Borrower or any Subsidiary after the Effective Date or existing on any property or asset prior to        the merger, consolidation or becoming a Subsidiary of any Person that is merged or consolidated        with or into the Borrower or any of its Subsidiaries after the Effective Date or that becomes a        Subsidiary after the Effective Date; provided, that, (i) such Lien is not created in contemplation of        or in connection with such acquisition or such Person becoming a Subsidiary, as the case may be,        (ii) such Lien shall not apply to any other property or assets of the Borrower or any Subsidiary        (other than improvements, accessions, proceeds, dividends or distributions in respect thereof and        assets fixed or appurtenant thereto) and (iii) such Lien shall secure only those obligations which it        secures on the date of such acquisition or the date such Person becomes a Subsidiary, as the case        may be;               (p)   Liens in favor of a seller solely on any cash earnest money deposits made by the        Borrower or any of its Subsidiaries in connection with any letter of intent or purchase agreement        with respect to any Permitted Acquisition or other Investment permitted hereunder;               (q)   (i)  Liens  of  a  collection  bank  arising  under  Section  4-210  of  the  Uniform        Commercial Code on items in the course of collection and (ii) Liens securing cash management        obligations  and  any  obligations  under  cash  management  agreements  (in  each  case, that  do  not        constitute Indebtedness) in the ordinary course of business;                                        100  CHAR1\1707916v5 





 






               (r)   licenses  and  sublicenses  of  intellectual  property  permitted  by  Section  8.19(b);        and               (s)   additional  Liens  incurred  by  the  Borrower  and  its  Subsidiaries  so  long  as  the        aggregate outstanding principal amount of Indebtedness and other obligations secured thereby do        not exceed $1,000,000 at any time.         Notwithstanding anything to the contrary in this Section 8.01, no Lien permitted under clauses (b)  through (q), or clause (s) shall apply to any Material IP Rights.          8.02  Investments.         Make any Investments, except:               (a)   Investments  held  by  any  Loan  Party  or  any  Subsidiary  in  the  form  of  cash  or        Cash Equivalents;               (b)   Investments existing as of the Effective Date and set forth in Schedule 8.02 to the        Disclosure Letter;               (c)   (i) Investments by Loan Parties in any Person that is a Qualified Loan Party prior        to giving effect to such Investment, (ii) Investments by (A) Loan Parties (that are not Brazilian        Loan  Parties)  in  Brazilian  Loan  Parties,  in  an  aggregate  amount  not  to  exceed  $25,000,000        (provided, that, such amount shall increase by $0.25 for each $1.00 of cash and Cash Equivalents        received  by  the  Borrower  from  the  issuance  of  its  Qualified  Equity  Interests  (other  than  in        connection with any Specified Cure Contribution) on or after July 1, 2018 (so long as such cash        and Cash Equivalents are not otherwise applied to any other permitted use under this Agreement);        provided,  however,  that,  in  no  event  shall  such  amount  exceed  $40,000,000)  at  any  one  time        outstanding  and  (B)  Brazilian  Loan  Parties  in  Brazilian  Loan  Parties,  (iii)  Investments  by        Subsidiaries that are not Loan Parties in (A) Loan Parties and (B) any other Subsidiary that is not        a  Loan  Party,  (iv)  Investments  by  Qualified  Loan  Parties  in  (A)  Loan  Parties  that  are  not        Qualified Loan Parties (other than Brazilian Loan Parties), in an aggregate amount not to exceed        $10,000,000 at any one time outstanding; provided, that, the aggregate amount of any Investment        made pursuant to clause (ii)(A) that indirectly flows through a Loan Party that is not a Qualified        Loan Party (other than a Brazilian Loan Party) shall not be deemed to apply to this clause (iv)(A),        and (B) Subsidiaries that are not Loan Parties, in an aggregate amount not to exceed, together        with all Investments made pursuant to clause (c)(v)(B), $5,000,000 at any one time outstanding        and (v) Investments by Loan Parties that are not Qualified Loan Parties in (A) other Loan Parties        that are not Qualified Loan Parties (other than Brazilian Loan Parties) and (B) Subsidiaries that        are not Loan Parties, in an aggregate amount not to exceed, together with all Investments made        pursuant to clause (c)(iv)(B), $5,000,000 at any one time outstanding;               (d)   extensions of credit to non-Affiliates in the nature of accounts receivable or notes        receivable arising from the sales of goods or services in the ordinary course of business;               (e)   Permitted Acquisitions and Approved Strategic Investments;               (f)   Swap Contracts permitted under Section 8.03(d);                                         101  CHAR1\1707916v5 





 






               (g)   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;                (h)   Investments consisting of security deposits with utilities and other like Persons        made in the ordinary course of business;               (i)   employee  loans,  travel  advances  and  guarantees  in  accordance  with  the  Loan        Parties’  usual  and  customary  practices  with  respect  thereto  (if  permitted  by  applicable  Law),        which in the aggregate shall not exceed $250,000 outstanding at any time;                (j)   Investments received in connection with any insolvency proceedings in respect of        any  customers,  suppliers  or  clients  and  in  settlement  of  delinquent  obligations  of,  and  other        disputes with, customers, suppliers or clients;                (k)   Guarantees  permitted  by  Section  8.03  (other  than  by  reference  to  this  Section        8.02 (or any subclause hereof)); and               (l)   other Investments not permitted by any of the foregoing clauses of this Section        8.02, in an aggregate amount not to exceed $1,000,000 at any one time outstanding.         8.03  Indebtedness.         Create, incur, assume or suffer to exist any Indebtedness, except:               (a)   Indebtedness under the Loan Documents;               (b)   Indebtedness  (other  than  by  reference  to  this  Section  8.03  (or  any  sub-clause        hereof)) existing on the Effective Date and described on Schedule 8.03 to the Disclosure Letter        and Permitted Refinancings thereof;               (c)   (i)  intercompany  Indebtedness  permitted  under  Section  8.02  (other  than  by        reference to this Section 8.03 (or any sub-clause hereof)) and (ii) Guarantees permitted by Section        8.02 (other than by reference to this Section 8.03 (or any subclause hereof));               (d)   obligations  (contingent  or  otherwise)  of  any  Loan  Party  or  any  Subsidiary        existing  or  arising  under  any  Swap  Contract;  provided,  that,  (i)  such  obligations  are  (or  were)        entered  into  by  such  Person  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,  or  changes  in  the  value  of  securities  issued  by  such        Person,  and  not  for  purposes  of  speculation  or  taking  a  “market  view”  and  (ii)  such  Swap        Contract does not contain any provision exonerating the non-defaulting party from its obligation        to make payments on outstanding transactions to the defaulting party;               (e)   purchase money Indebtedness (including obligations in respect of Capital Leases        or Synthetic Leases) incurred by any Loan Party or any of their respective Subsidiaries to finance        the acquisition, purchase, construction or improvement of fixed assets, and renewals, refinancings        and extensions thereof; provided, that, (i) such Indebtedness when incurred shall not exceed the        cost of acquiring, purchasing, constructing or improving such asset(s), (ii) no such Indebtedness        shall be refinanced for a principal amount in excess of the principal balance outstanding thereon,        plus  any  fees  and  expenses  incurred  in  connection  with  such  refinancing  and  any  reasonable                                        102  CHAR1\1707916v5 





 






         premium  paid  in  connection  with  such  refinancing,  (iii)  the  aggregate  outstanding  principal        amount of all Indebtedness outstanding in reliance on this clause (e) shall not exceed $4,000,000        at  any  one  time  outstanding  and  (iv)  the  aggregate  outstanding  principal  amount  of  all        Indebtedness outstanding in reliance on this clause (e), Section 8.03(g) and Section 8.03(h), when        taken together, shall not exceed $12,000,000 at any one time outstanding;               (f)   unsecured  Indebtedness  in  respect  of  netting  services,  overdraft  protections,        employee credit card programs, automatic clearinghouse arrangements and similar arrangements        in each case in connection with deposit accounts and Indebtedness arising from the honoring of a        bank  or  other  financial  institution  of  a  check,  draft  or  similar  instrument  drawn  against        insufficient funds in the ordinary course of business; provided, that, (x) any such Indebtedness is        extinguished within thirty (30) days and (y) the aggregate outstanding principal amount of such        Indebtedness shall not exceed $1,000,000 at any one time outstanding;               (g)   Permitted  Senior  Revolving  Credit  Indebtedness  in  an  aggregate  principal        amount not to exceed at any one time outstanding $4,000,000 pursuant to one or more revolving        credit  facilities;  provided, that,  (x)  no  Default  or  Event  of  Default  shall  have occurred  and  be        continuing  both  immediately  before  and  immediately  after  the  effectiveness  of  any  Permitted        Senior Revolving Credit Documents, (y) prior to the incurrence of any such Indebtedness, (i) the        Administrative  Agent,  the  Loan  Parties  and  the  applicable  Permitted  Senior  Revolving  Credit        Lender  shall  have  entered  into  an  intercreditor  agreement  reasonably  satisfactory  to  the        Administrative Agent pursuant to which (A) such Permitted Senior Revolving Credit Lender may        be  granted  a  first  priority  security  interest  only  in  the  accounts  receivable  and/or  inventory  of        Establishment Labs Sociedad Anonima and proceeds thereof (collectively, the “Permitted Senior        Revolving  Credit Priority Collateral”),  (B)  the  Administrative  Agent,  on  behalf  of  the  Secured        Parties,  shall  be  granted  a  second  priority  security  interest  in  the  Permitted  Senior  Revolving        Credit Priority Collateral, (C) the Administrative Agent, on behalf of the Secured Parties, shall        maintain  its  first  priority  security  interest  in  all  other  assets  of  the  Loan  Parties  (other  than        Excluded Property) and (D) such Permitted Senior Revolving Credit Lender shall not be granted a        security interest in any property of the Loan Parties other than the Permitted Senior Revolving        Credit  Priority  Collateral  and  (ii)  the  Administrative  Agent  and  the  Loan  Parties  shall  have        entered  into  amendments,  in  each  case  in  form  and  substance  reasonably  satisfactory  to  the        Administrative Agent, to this Agreement and such other Loan Documents as required to, among        other  things,  include  in  the  Loan  Documents  such  additional  representations,  warranties,        covenants  and  defaults  as  are  included  in  the  applicable  Permitted  Senior  Revolving  Credit        Documents  (but  not  included  in  the  Loan  Documents  at  such  time)  and  (z)  the  aggregate        outstanding principal amount of all Indebtedness incurred in reliance on this clause (g), Section        8.03(e) and Section 8.03(h), when taken together, shall not exceed $12,000,000 at any one time        outstanding;               (h)   Indebtedness  hereafter  incurred  by  any  Loan  Party  or  any  of  their  respective        Subsidiaries to finance the purchase, construction or improvement of real property, and renewals        and  extensions  thereof;  provided,  that,  (i)  such  Indebtedness  shall  be  secured  only  by  real        property  (and,  for  the  avoidance  of  doubt,  by  no  other  assets  of  any  Loan  Party  or  any        Subsidiary), (ii) no such Indebtedness shall be refinanced for a principal amount in excess of the        principal balance outstanding thereon at the time of such refinancing, plus any fees and expenses        incurred  in  connection  with  such  refinancing  and  any  reasonable  premium  paid  in  connection        with  such  refinancing,  (iii)  the  aggregate  outstanding  principal  amount  of  all  Indebtedness        incurred in reliance on this clause (h) shall not exceed $10,000,000 at any one time outstanding        and (iv) the aggregate outstanding principal amount of all Indebtedness incurred in reliance on                                         103  CHAR1\1707916v5 





 






         this  clause  (h),  Section  8.03(e)  and  Section  8.03(g),  when  taken  together,  shall  not  exceed        $12,000,000 at any one time outstanding;               (i)   solely until the Funding Date, Indebtedness under the Existing Credit Agreement;                (j)   accounts payable to trade creditors for goods and services and current operating        liabilities (not the result of the borrowing of money) incurred in the ordinary course of the Loan        Parties and their respective Subsidiaries’ business in accordance with customary terms and paid        within the specified time, unless contested in good faith by appropriate proceedings and reserved        for in accordance with GAAP;               (k)   Indebtedness  consisting  of  guarantees  resulting  from  the  endorsement  of        negotiable instruments for collection in the ordinary course of business;                (l)   other  unsecured  Indebtedness  not permitted  by any of  the  other clauses of  this        Section  8.03,  in  an  aggregate  principal  amount  not  to  exceed  $1,000,000  at  any  one  time        outstanding;               (m)   Indebtedness of any Person that becomes a Subsidiary after the Effective Date;        provided, that, (i) such Indebtedness exists at the time such Person becomes a Subsidiary and is        not created in contemplation of or in connection with such Person becoming a Subsidiary and (ii)        the aggregate principal amount of all such Indebtedness outstanding in reliance on this clause (m)        shall not exceed $500,000 at any one time outstanding;                (n)   unsecured Earn Out Obligations in connection with Permitted Acquisitions; and               (o)   unsecured Indebtedness of the Borrower owing to (i) solely until August 1, 2019,        JW  Partners,  LP  pursuant  to  that  certain  Warrant  Payment  Agreement  dated  as  of  August  24,        2017  between  the  Borrower  and  JW  Partners,  LP  in  an  aggregate  amount  not  to  exceed        $1,589,488.64  at  any  one  time  outstanding,  (ii)  solely  until  August  1,  2019,  JW  Opportunities        Master Fund, Ltd. pursuant to that certain Warrant Payment Agreement dated as of August 24,        2017 between the Borrower and JW Opportunities Master Fund, Ltd. in an aggregate amount not        to exceed $529,829.55 at any one time outstanding, (iii) solely until August 1, 2019, Relativity        Healthcare  Fund,  LLC  pursuant  to  that  certain  Warrant  Cancellation  Agreement  dated  as  of        August  24,  2017  between  the  Borrower  and  Relativity  Healthcare  Fund,  LLC  in  an  aggregate        amount not to exceed $141,287.55 at any one time outstanding and (iv) solely until September 30,        2017,  Perceptive  Credit  Holdings,  LP  pursuant  to  that  certain  Warrant  Repurchase  Agreement        dated  as  of  August  24,  2017  between  the  Borrower  and  Perceptive  Credit  Holdings,  LP  in  an        aggregate amount not to exceed $2,400,000 at any one time outstanding.         8.04  Fundamental Changes.         Merge, dissolve, liquidate, amalgamate or consolidate with or into another Person, or Dispose of  (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now  owned or hereafter acquired) to or in favor of any Person; provided, that, notwithstanding the foregoing  provisions of this Section 8.04 but subject to the terms of Sections 7.12 and 7.14, (a) the Borrower may  merge or consolidate with any of its Subsidiaries, provided, that, the Borrower shall be the continuing or  surviving corporation, (b) any Qualified Loan Party (other than the Borrower) may merge, amalgamate or  consolidate with any other Qualified Loan Party (other than the Borrower), (c) any Loan Party that is not  a  Qualified  Loan  Party  may  merge,  amalgamate  or  consolidate  with  any  Loan  Party  (other  than  the  Borrower), provided, that, if a Qualified Loan Party is a party to such transaction, such Qualified Loan                                        104  CHAR1\1707916v5 





 






   Party shall  be the continuing  or  surviving  Person, (d)  any  Subsidiary  that  is  not  a  Loan  Party may  be  merged  or  consolidated  with  or  into  any  Loan  Party,  provided,  that,  such  Loan  Party  shall  be  the  continuing  or  surviving  Person,  (e)  any  Subsidiary  that  is  not  a  Loan  Party   may  be  merged  or  consolidated with or into any other Subsidiary that is not a Loan Party, (f) any Subsidiary that is not a  Loan  Party may  dissolve, liquidate or  wind  up its  affairs at any time, provided,  that,  such  dissolution,  liquidation or winding up could not reasonably be expected to have a Material Adverse Effect and all of  its  assets  and  business  are  transferred  to  a  Loan  Party  prior  to  or  concurrently  with  such  dissolution,  liquidation  or  winding  up  and  (g)  the  Borrower  and  its  Subsidiaries  may  consummate  Permitted  Acquisitions  and  Approved  Strategic  Investments,  provided,  that,  (x)  to  the  extent  applicable,  such  transaction complies with clauses (a) through (f) of the first proviso in this Section 8.04 and (y) to the  extent such transaction involves a merger, amalgamation or consolidation with a Person other than the  Borrower  or  any  Subsidiary,  either  (A)  the  Borrower  or  such  Subsidiary  shall  be  the  continuing  or  surviving Person or (B) the continuing or surviving Person shall comply with the requirements of Section  7.12 and Section 7.14.         8.05  Dispositions.         Make any Disposition unless (a) the consideration paid in connection therewith shall be cash or  Cash Equivalents paid contemporaneous with consummation of the transaction and shall be in an amount  not less than the fair market value of the property disposed of, (b) no Default or Event of Default shall  have occurred and be continuing both immediately prior to and after giving effect to such Disposition, (c)  such  transaction  does  not  involve  the  sale  or  other  disposition  of  a  minority  equity  interest  in  any  Subsidiary and (d) the aggregate net book value of all of the assets sold or otherwise disposed of in such  Disposition together with the aggregate net book value of all assets sold or otherwise disposed of by the  Loan Parties and their respective Subsidiaries in all such transactions occurring during the term of this  Agreement does not exceed $1,000,000.         8.06  Restricted Payments.         Declare or make, directly or indirectly, any Restricted Payment, except that:               (a)   each Subsidiary may make Restricted Payments to any Loan Party;                (b)   each Loan Party and each Subsidiary may declare and make dividend payments        or other distributions payable solely in the Qualified Capital Stock of such Person;               (c)    (i) the Borrower may purchase, redeem, retire or otherwise acquire its Qualified        Capital Stock solely to the extent such purchase, redemption, retirement or acquisition is made        with proceeds received from a substantially concurrent issuance of new Qualified Capital Stock        of  the  Borrower,  (ii)  to  the  extent  constituting  Restricted  Payments,  the  Borrower  may  repay        Indebtedness permitted by Section 8.03(o) to the extent not prohibited by Section 8.11 and (iii)        the Borrower may purchase, redeem, retire or otherwise acquire shares of its Qualified Capital        Stock from Global Silicone SRL for aggregate consideration not to exceed $2,845,990; provided,        that, with respect to this clause (iii), such purchase occurs within thirty (30) days of the Funding        Date;               (d)   the  Borrower  may  (i)  purchase  or  pay  cash  in  lieu  of  fractional  shares  of  its        Qualified Capital Stock arising out of dividends, splits, or business combinations or in connection        with  the  issuance  of  its  Qualified  Capital  Stock  pursuant  to  mergers,  consolidations  or  other        acquisitions, in each case, permitted by this Agreement, (ii) pay cash in lieu of fractional shares        upon  the  exercise  of  warrants,  options  or  other  securities  convertible  into  or  exercisable  for                                        105  CHAR1\1707916v5 





 






         Qualified Capital Stock of the Borrower and (iii) make payments in connection with the retention        of  Qualified  Capital  Stock  in  payment  of  withholding  taxes  in  connection  with  equity-based        compensation  plans  to  the  extent  that  net  share  settlement  arrangements  are  deemed  to  be        repurchases; and               (e)   the Borrower may make other Restricted Payments not to exceed (i) $600,000 in        the fiscal year of the Borrower ending December 31, 2017 and (ii) $500,000 in any fiscal year of        the Borrower ending thereafter.         8.07  Change in Nature of Business.         Engage  in  any  material  line  of  business  substantially  different  from  those  lines  of  business  conducted by the Borrower and its Subsidiaries on the Effective Date or any business substantially related  or incidental thereto.         8.08  Transactions with Affiliates and Insiders.         Enter into or permit to exist any transaction or series of transactions with any officer, director,  employee or Affiliate of such Person other than (a) advances of working capital to any Loan Party, (b)  transfers  of  cash  and  assets  to  any  Loan  Party,  (c)  intercompany  transactions  expressly  permitted  by  Section 8.02, Section 8.03, Section 8.04, Section 8.05 or Section 8.06, (d) customary compensation and  indemnification  of,  and  other  employment  arrangements  with,  directors,  officers  and  employees  in  the  ordinary  course  of  business,  (e)  issuances  of  Qualified  Capital  Stock  of  the  Borrower  to  Affiliates  in  exchange  for  cash;  provided,  that,  (i)  no  Default  or  Event  of  Default  shall  have  occurred  and  be  continuing (or could reasonably be expected to occur as a result of such issuance) and (ii) the terms of  each such issuance are no less favorable (including the amount of cash received by the Borrower) to the  Borrower than those that would be obtained in a comparable arm’s-length transaction with a Person who  is  not  an  Affiliate  of  the  Borrower  and  (f)  except  as  otherwise  specifically  limited  in  this  Agreement,  other transactions which are entered into in the ordinary course of such Person’s business on terms and  conditions substantially as favorable to such Person as would be obtainable by it in a comparable arms- length transaction with a Person other than an officer, director or Affiliate.         8.09  Burdensome Agreements.         Enter into,  or  permit  to  exist,  any  Contract  that  encumbers  or  restricts  the  ability  of  any  such  Person to (a) make Restricted Payments to any Loan Party, (b) pay any Indebtedness or other obligations  owed to any Loan Party, (c) make loans or advances to any Loan Party, (d) transfer any of its property to  any Loan Party, (e) pledge its property pursuant to the Loan Documents or any renewals, refinancings,  exchanges, refundings or extension thereof or (f) act as a Loan Party pursuant to the Loan Documents or  any renewals, refinancings, exchanges, refundings or extension thereof, except (in respect of any of the  matters referred to in clauses (a) through (e) above) for (i) this Agreement and the other Loan Documents,  (ii)  any  document  or  instrument  governing  Indebtedness  incurred  pursuant  to  Section  8.03(b),  Section  8.03(e), Section 8.03(h); provided, that, any such restriction contained therein relates only to the asset or  assets  constructed  or  acquired  in  connection  therewith,  (iii)  customary  restrictions  and  conditions  contained in any agreement relating to the sale of any property permitted under Section 8.05 pending the  consummation of such sale, (iv) any Permitted Senior Revolving Credit Documents, (v) requires the grant  of  any  security  for  any  obligation  if  such  property  is  given  as  security  for  the  Obligations,  (vi)  prohibitions, restrictions and conditions existing on the Effective Date identified on Schedule 8.09 to the  Disclosure Letter, (vii) customary provisions contained in leases, subleases, licenses and sublicenses and  other  contracts  restricting  the  assignment,  subletting  or  encumbrance  thereof,  customary  net  worth  provisions or similar financial maintenance provisions contained therein and other customary provisions                                        106  CHAR1\1707916v5 





 






   contained in leases, subleases, licenses and sublicenses and other contracts entered into in the ordinary  course of business, (viii) prohibitions, restrictions and conditions that are binding on a Subsidiary at the  time such Subsidiary first becomes a Subsidiary, so long as such restrictions were not entered into solely  in  contemplation  of  such  Person  becoming  a  Subsidiary  and  (ix)  customary  restrictions  under  any  arrangement  with  any  Governmental  Authority  imposed  on  any  Subsidiary  in  connection  with  governmental grants, financial aid, tax holidays or similar benefits or economic interests.         8.10  Use of Proceeds.         Use  the  proceeds  of  any  Loan,  whether  directly  or  indirectly,  and  whether  immediately,  incidentally or ultimately, to purchase or carry margin stock (within the meaning of Regulation U of the  FRB) or to extend credit to others for the purpose of purchasing or carrying margin stock or to refund  indebtedness originally incurred for such purpose.         8.11  Payment of Other Indebtedness.         Make (or give any notice with respect thereto) any voluntary or optional payment or prepayment  or redemption or acquisition for value of (including without limitation, by way of depositing money or  securities with the trustee with respect thereto before due for the purpose of paying when due), refund,  refinance or exchange of any Indebtedness of any Loan Party or any Subsidiary (other than (i) any of the  foregoing payments or transactions relating to (x) Indebtedness arising under the Loan Documents, (y)  any  Permitted  Senior  Revolving  Credit  Indebtedness  and  (z)  the  repayment  of  all  Indebtedness  owing  under the Existing Credit Agreement on the Funding Date, (ii) such payments or transactions that do not  exceed  an  aggregate  amount  of  $1,000,000  per  fiscal  year,  (iii)  Permitted  Refinancings  expressly  permitted hereby and (iv) prepayments by the Borrower of Indebtedness permitted by Section 8.03(o);  provided,  that,  with  respect  to  this  clause  (iv),  (x)  the  funds  utilized  by  the  Borrower  for  any  such  payments shall consist solely of (A) proceeds received from a substantially concurrent issuance of new  Qualified Capital Stock of the Borrower and (B) not more than $1,750,000 of internally generated cash  and Cash Equivalents of the Loan Parties and their Subsidiaries and (y) no proceeds of any Loans or any  other Indebtedness shall be used for any such payments).         8.12  Organization  Documents;  Fiscal  Year;  Legal  Name,  State  of  Formation  and  Form  of  Entity; Certain Amendments.               (a)   Amend,  modify  or  change  its  Organization  Documents  in  a  manner  materially        adverse to the Administrative Agent or the Lenders, in their capacity as the Administrative Agent        or as Lenders, as applicable, under the Loan Documents.               (b)   Change its fiscal year or any fiscal quarter.               (c)   Without providing ten (10) days prior written notice to the Administrative Agent,        change its name, jurisdiction of organization or form of organization (or foreign equivalent).               (d)   Amend, modify or change (or permit the amendment, modification or change of)        any of the terms or provisions of any Permitted Senior Revolving Credit Document in a manner        adverse  to  the  Administrative  Agent  or  any  Secured  Party  or  in  violation  of  the  terms  and        provisions of any intercreditor agreement entered into by the Administrative Agent with respect        thereto  (for  the  avoidance  of  doubt,  any  amendment,  modification  or  change  that  is  permitted        pursuant  to  any  applicable  intercreditor  agreement  shall  not  be  adverse  to  the  Administrative        Agent or any Secured Party).                                         107  CHAR1\1707916v5 





 






               (e)   Make any change in accounting policies or reporting practices, except as required        by GAAP.         8.13  Ownership of Subsidiaries.         Notwithstanding any other provisions of this Agreement to the contrary, (a) permit any Person  (other  than  any  Loan  Party  or  any  Wholly  Owned  Subsidiary)  to  own  any  Equity  Interests  of  any  Subsidiary, except to qualify directors where required by applicable law or to satisfy other requirements  of applicable law with respect to the ownership of Equity Interests of Foreign Subsidiaries, (b) permit any  Loan Party or any Subsidiary to issue or have outstanding any shares of Disqualified Capital Stock or (c)  create, incur, assume or  suffer  to  exist  any  Lien on  any  Equity  Interests  of any  Subsidiary,  except  for  Permitted Liens.         8.14  Sale Leasebacks.         Enter  into  any  Sale  and  Leaseback  Transaction  (other  than  any  Permitted  Sale  and  Leaseback  Transaction).         8.15  Sanctions; Anti-Corruption Laws.               (a)   Directly  or  indirectly,  use  the  proceeds  of  any  Loan,  or  lend,  contribute  or        otherwise make available the proceeds of any Loan to any Person, to fund any activities of or        business with any Person, or in any Designated Jurisdiction, that, at the time of such funding, is        the  subject  of  Sanctions,  or  in  any  other  manner  that  will  result  in  a  violation  by  any  Person        (including any Person participating in the transaction, whether as Lender, Administrative Agent,        or otherwise) of Sanctions.               (b)   Directly or indirectly, use the proceeds of any Loan for any purpose which would        breach the United States Foreign Corrupt Practices Act of 1977, the UK Bribery Act 2010 and        other similar anti-corruption legislation in other jurisdictions.               (c)   Any  provision  of  this  Section  8.15  or  Section  6.21(a)  shall  not  apply  to  or  in        favor of any Person if and to the extent that it would result in a breach, by or in respect of that        Person, of any applicable Blocking Law.         8.16  Minimum Product Revenues.               (a)   Minimum Product Revenues.  Permit Product Revenues for any four consecutive        fiscal quarter period to be less than (i) $20,000,000, for the four consecutive fiscal quarter period        ending  September  30,  2017,  (ii)  $30,000,000,  for  any  four  consecutive  fiscal  quarter  period        ending during the period from December 31, 2017 through and including September 30, 2018,        (iii)  $45,000,000,  for any four consecutive fiscal  quarter  period  ending  during  the  period  from        December 31, 2018 through and including September 30, 2019, (iv) $60,000,000, for any four        consecutive fiscal quarter period ending during the period from December 31, 2019 through and        including September 30, 2021, (v) $120,000,000, for any four consecutive fiscal quarter period        ending during the period from December 31, 2021 through and including September 30, 2022 and        (vi) $150,000,000, for any four consecutive fiscal quarter period ending thereafter.               (b)   Cure Right.                                         108  CHAR1\1707916v5 





 






                     (i)   Notwithstanding anything to the contrary contained in Section 8.16(a), in              the event that any Loan Party would otherwise be in default of the financial covenant set              forth  in  Section  8.16(a)  for  any  period,  on  or  before  the  tenth  (10th)  Business  Day              subsequent  to  the  due  date  for  delivery  of  the  financial  statements  for  such  period              pursuant  to  Section  7.01(a)  or  (b),  as  applicable  (such  period,  the  “Cure  Period”),  the              Borrower shall have the right to issue its Qualified Capital Stock for cash in an aggregate              amount not to exceed the amount necessary to cure the relevant failure to comply with              Section  8.16(a)  (such  contribution,  a  “Specified  Cure  Contribution”),  and  upon  the              receipt by the Borrower of such Specified Cure Contribution within the Cure Period, the              financial covenant set forth in Section 8.16(a) shall be recalculated giving effect to the              following pro forma adjustments (collectively, the “Cure Right”):                           (A)   Product Revenues shall be increased for the final fiscal quarter of                    such period (the “Applicable Quarter”) and any period of four consecutive fiscal                    quarters that includes the Applicable Quarter, solely for the purpose of measuring                    the financial covenant set forth in Section 8.16(a), and not for any other purpose                    under this Agreement, by an amount equal to the Specified Cure Contribution;                    and                           (B)   If,  after  giving  effect  to  the  foregoing  recalculation,  the  Loan                    Parties  shall  then  be  in  compliance  with  the  requirements  of  the  financial                    covenant set forth in Section 8.16(a), the Loan Parties shall be deemed to have                    satisfied the requirements of the financial covenant set forth in Section 8.16(a) as                    of  the relevant  date of  determination  with  the  same effect  as though  there  had                    been  no failure  to  comply  therewith at such date, and  the  applicable breach  or                    default  of  the  covenant  set  forth  in  Section  8.16(a)  that  had  occurred  shall  be                    deemed cured for the purposes of this Agreement.                     (ii)  Notwithstanding  anything  herein  to  the  contrary,  (A)  the  Loan  Parties              shall provide notice to the Administrative Agent of their intention to exercise the Cure              Right  no  later  than  the  date  of  delivery  of  the  financial  statements  evidencing  such              noncompliance pursuant to Section 7.01(a) or (b), as applicable, (B) in each four fiscal              quarter  period,  there  shall  be  a  period  of  at  least  two  (2)  fiscal  quarters  in  respect  of              which no Cure Right is exercised, (C) the Cure Right may not be exercised with respect              to  consecutive  fiscal  quarters,  (D)  the  Specified  Cure  Contribution  shall  be  no  greater              than  the  amount  required  for  purposes  of  complying  with  the  financial  covenant  in              Section 8.16(a), (E) the Specified Cure Contribution received pursuant to any exercise of              the  Cure  Right  shall  be  disregarded  for  purposes  of  determining  any  available  basket              under any covenant in this Agreement, (F) the Cure Right may be exercised no more than              three (3) times during the term of this Agreement and (G) the provisions of this Section              8.16(b) shall in no way limit the Borrower’s ability to issue its Qualified Capital Stock at              any  time  and  for  the  avoidance  of  doubt,  any limitation  with  respect to amount  of the              Specified Cure Contribution is only a limitation with respect to the amount of Product              Revenue that may count as a Specified Cure Contribution pursuant to the terms of this              Section 8.16(b).         8.17  Liquidity.               (a)   Permit Liquidity of the Loan Parties to be less than $10,000,000; and                                         109  CHAR1\1707916v5 





 






               (b)   Permit Liquidity of the Loan Parties held in Controlled Accounts to be less than        $5,000,000.         8.18  Modifications and Terminations of Material Contracts.         Except to the extent such action or omission could not reasonably be expected, either individually  or in the aggregate, to have or result in a Material Adverse Effect, take or omit to take any action that  results in the termination of, or permits any other Person to terminate, any Material Contract or Material  IP Rights, other than any bona fide dispute that is being contested in good faith.          8.19  Inbound and Outbound Licenses.               (a)   Except as set forth on Schedule 8.19(a) to the Disclosure Letter, no Loan Party        shall, nor shall it permit any of its Subsidiaries to, enter into or become or remain bound by (x)        any Material Contract or (y) any material inbound license agreement, unless no Default or Event        of Default has occurred and is continuing (or would reasonably be expected to occur as a result        thereof) and the Loan Parties have (i) provided prior written notice to the Administrative Agent of        the material terms of such agreement with a description of its anticipated and projected impact on        the  relevant  Loan  Party’s  business  or  financial  condition  and  (ii)  taken  such  commercially        reasonable actions as the Administrative Agent may reasonably request to obtain the consent of,        or waiver by, any Person whose consent or waiver is necessary for the Administrative Agent to be        granted  a  valid  and  perfected  Lien  on  such  agreement  and the right  to  fully exercise its  rights        under  any  of  the  Loan  Documents  in  the  event  of  a  disposition  or  liquidation  (including  in        connection  with  a  foreclosure)  of  the  rights,  assets  or  property  that  is  the  subject  of  such        agreement; provided, that, inbound license agreements in the nature of over the counter software        that are commercially available to the public shall not be prohibited by this clause (a).                      (b)   Except as set forth on Schedule 8.19(b) to the Disclosure Letter, no Loan Party        shall, nor shall it permit any of its Subsidiaries to, enter into or become or remain bound by any        outbound license of IP Rights unless such outbound license (i) is duly authorized by the Loan        Parties (pursuant to their customary approval process) and entered into on an arm’s-length basis,        (ii)  is  entered  into  for  the  purpose  of  Product  Commercialization  and  Development  Activities        with respect to a Product, (iii) does not otherwise constitute a Disposition prohibited pursuant to        this Agreement, (iv) to the extent such IP Rights constitute Collateral, (x) could not reasonably be        expected to result in a Material Adverse Effect and (y) does not impair the Administrative Agent        from fully exercising its rights under any of the Loan Documents in the event of a disposition or        liquidation (including in connection with a foreclosure) of the rights, assets or property that is the        subject of such license, (v) is not an exclusive license (whether as to use, geography or otherwise)        and (vi) is not perpetual or irrevocable.                                                 ARTICLE IX.                                                                 EVENTS OF DEFAULT AND REMEDIES         9.01  Events of Default.         Any of the following shall constitute an Event of Default:               (a)   Non-Payment.  The Borrower or any other Loan Party fails to pay (i) when and        as required to be paid herein, any amount of principal of any Loan, (ii) within three (3) Business        Days after the same becomes due, any interest on any Loan, or any fee or prepayment premium                                        110  CHAR1\1707916v5 





 






         due  hereunder  or  (iii) within  five  (5)  Business  Days  after  the  same  becomes  due,  any  other        amount payable hereunder or under any other Investment Document; or               (b)   Specific  Covenants.   Any  Loan  Party  fails  to  perform  or  observe  any  term,        covenant or agreement contained in any of Section 7.01, 7.02, 7.03, 7.05, 7.10, 7.11, 7.12, 7.14,        7.15, 7.16, 7.17, 7.18, 7.19 or Article VIII; or               (c)   Other Defaults.  Any Loan Party fails to perform or observe any other covenant        or agreement (not specified in subsection (a) or (b) above) contained in any Investment Document        on its part to be performed or observed and such failure continues for thirty (30) days after the        earlier of the date on which (i) a Responsible Officer of any Loan Party becomes aware of such        failure and (ii) written notice thereof shall have been given to the Borrower by the Administrative        Agent or any Lender; or               (d)   Representations  and  Warranties.   Any  representation,  warranty,  certification  or        statement of fact made or deemed made by or on behalf of the Borrower or any other Loan Party        herein, in any other Investment Document, or in any document delivered in connection herewith        or therewith shall be incorrect or misleading in any material respect when made or deemed made;        or               (e)   Cross-Default.   (i)  Any  Loan  Party  or  any  Subsidiary  (A)  fails  to  make  any        payment when due (whether by scheduled maturity, required prepayment, acceleration, demand        or otherwise), but only after the expiration of any grace period applicable thereto, in respect of        any Indebtedness or Guarantee (other than Indebtedness hereunder and Indebtedness under Swap        Contracts)  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 the Threshold Amount or (B) fails to observe or perform any other        agreement  or  condition  relating  to  any  such  Indebtedness  or  Guarantee  or  contained  in  any        instrument or agreement evidencing, securing or relating thereto, or any other event occurs, the        effect  of  which  default  or  other  event  is  to  cause,  or  to  permit  the  holder  or  holders  of  such        Indebtedness or the beneficiary or beneficiaries of such Guarantee (or a trustee or agent on behalf        of  such  holder  or  holders  or  beneficiary  or  beneficiaries)  to  cause (after  the  expiration  of  any        applicable  grace  or  cure  period  applicable  thereto),  with  the  giving  of  notice  if  required,  such        Indebtedness  to  be  demanded  or  to  become  due  or  to  be  repurchased,  prepaid,  defeased  or        redeemed (automatically or otherwise), or an offer to repurchase, prepay, defease or redeem such        Indebtedness to  be  made, prior to its  stated maturity,  or such  Guarantee to  become payable  or        cash collateral in respect thereof to be demanded or (ii) there occurs under any Swap Contract an        Early  Termination  Date  (as  defined  in  such  Swap  Contract)  resulting  from  (A)  any  event  of        default under such Swap Contract as to which any Loan Party or any Subsidiary is the Defaulting        Party (as defined in such Swap Contract) or (B) any Termination Event (as so defined) under such        Swap Contract as to which any Loan Party or any Subsidiary is an Affected Party (as so defined)        and, in either event, the Swap Termination Value owed by such Loan Party or such Subsidiary as        a result thereof is greater than the Threshold Amount; or               (f)   Insolvency  Proceedings,  Etc.   (i)  Any  Loan  Party  or  any  of  its  Subsidiaries        institutes or consents to the institution of any proceeding (including, in respect of any Loan Party        or  any  of  its  Subsidiaries  that  is  a  German  Person,  insolvency  proceedings  (Insolvenzfahren))        under any Debtor Relief Law, or makes an assignment for the benefit of creditors; or applies for        or  consents  to  the  appointment  of  any  receiver,  administrative  receiver,  trustee,  custodian,        conservator, liquidator, rehabilitator or similar officer for it or for all or any material part of its        property;  or  any  receiver,  administrative  receiver,  trustee,  custodian,  conservator,  liquidator,                                        111  CHAR1\1707916v5 





 






         rehabilitator or similar officer is appointed without the application or consent of such Person and        the  appointment  continues  undischarged  or  unstayed  for  sixty  (60)  calendar  days  or  any        proceeding under any Debtor Relief Law relating to any such Person or to all or any material part        of  its  property  is  instituted  without  the  consent  of  such  Person  and  continues  undismissed  or        unstayed  for  sixty  (60)  calendar  days,  or  an  order  for  relief  is entered  in  any  such  proceeding        (provided, that, in respect of a German Person, “receiver”, “administrative receiver”, “trustee”,        “custodian”,  “conservator”,  “liquidator”,  “rehabilitator”  or  “similar  officer”  includes  an        “Insolvenzverwalter”, a “Vorläufiger Insolvenzverwalter” or a “Sachwalter”); (ii) any BVI Loan        Party ceases to be “solvent” as such term is defined in the Insolvency Act, 2003 of the British        Virgin Islands; (iii) any action is taken by any Spanish Guarantor, any of its directors or any third        party aiming to the declaration of insolvency (“concurso”) of such Spanish Guarantor, including        any  “solicitud  de  concurso  voluntario”  or  the  occurrence  of  any  of  the  situations  described  in        Articles 5.2 and 5 bis of the Spanish Insolvency Law; or (iv) in respect of a French Loan Party,        such French Loan Party shall be in a state of cessation des paiements within the meaning of the        French Code  de  commerce (as used in this  clause (f), a  reference to  a  “similar  officer” shall        include a provisional administrator, conciliateur, mandataire ad hoc, administrateur judiciaire,        mandataire  judiciaire, liquidateur  judiciaire, commissaire  à  l'exécution  du  plan, mandataire  à        l'exécution de l'accord or any person appointed as a result of any proceedings described in this        clause  (f),  and  “any  proceeding”  shall  include  any  Loan  Party  applying  for mandat  ad  hoc  or        conciliation in accordance with articles L. 611-3 to L. 611-16 of the French Code de commerce,        the  entry  of  a  judgment  opening sauvegarde, sauvegarde  accélérée, sauvegarde  financière        accélérée, redressement  judiciaire  or liquidation  judiciaire  proceedings  or  ordering  a cession        totale  ou  partielle  de  l'entreprise  under  articles  L.  620-1  to  L.  670-8  of  the  French Code  de        commerce); or               (g)   Inability to Pay Debts; Attachment.  (i) Any Loan Party or any of its Subsidiaries        becomes unable or admits in writing its inability or fails generally to pay its debts as they become        due (provided, that, with respect to a German Person, “unable or admits its inability to pay its        debts  generally  as  they  fall  due”  shall  include  illiquidity  (Zahlungsunfähigkeit)  within  the        meaning  of  section  17  German  Insolvency  Act  (Insolvenzordnung  –  InsO  (“InsO”))  and  over-       indebtedness (Überschuldung) within the meaning of section 19 InsO) or (ii) any writ or warrant        of attachment or execution or similar process is issued or levied against all or any material part of        the property of any such Person and is not released, vacated or fully bonded within thirty (30)        days after its issue or levy; or               (h)   Judgments.  There is entered against any Loan Party or any Subsidiary (i) one or        more final judgments or orders for the payment of money in an aggregate amount exceeding the        Threshold Amount (to the extent not covered by independent third-party insurance as to which        the insurer does not dispute coverage) or (ii) any one or more non-monetary final judgments that        have,  or  could  reasonably  be  expected  to  have,  individually  or  in  the  aggregate,  a  Material        Adverse Effect and, in either case, (A) enforcement proceedings are commenced by any creditor        upon such judgment or order or (B) there is a period of thirty (30) consecutive days during which        a stay of enforcement of such judgment, by reason of a pending appeal or otherwise, is not in        effect; or               (i)   ERISA.   (i)  An  ERISA  Event  occurs  with  respect  to  any  Pension  Plan  or        Multiemployer Plan which has resulted or would reasonably be expected to result in liability of        any Loan Party under Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC in        an aggregate amount in excess of the Threshold Amount or (ii) any Loan Party or any ERISA        Affiliate  fails  to  pay  when  due,  after  the  expiration  of  any  applicable  grace  period,  any                                         112  CHAR1\1707916v5 





 






         installment payment with respect to its withdrawal liability, if any, under Section 4201 of ERISA        under a Multiemployer Plan in an aggregate amount in excess of the Threshold Amount; or               (j)   Employee Benefit Non-U.S. Plans.  (i) There shall occur one or more Employee        Benefit  Non-U.S.  Plan  Events  which  individually  or  in  the  aggregate  results  in  or  would        reasonably be expected to result in liability of the Borrower and its Subsidiaries in excess of the        Threshold  Amount  during  the  term  hereof;  or  (ii)  there  exists  any  fact  or  circumstance  that        reasonably would be expected to result in the imposition of a Lien or security interest under any        applicable Laws, statutes, rules, regulations and orders to which any Employee Benefit Non-U.S.        Plan is subject, on assets of the Borrower or any of its Subsidiaries; or               (k)   Invalidity  of  Investment  Documents.   Any  Investment  Document,  at  any  time        after its execution and delivery and for any reason other than as expressly permitted hereunder or        thereunder, ceases to be in full force and effect; or any Loan Party or any other Person contests in        any manner the validity or enforceability of any Investment Document; or any Loan Party denies        that it has any or further liability or obligation under any Investment Document, or purports to        revoke, terminate or rescind any Investment Document; or               (l)   Change of Control.  There occurs any Change of Control; or               (m)   Invalidity  of  Subordination  Provisions.   Any  subordination  provision  in  any        document  or  instrument  governing  Indebtedness  that  is  purported  to  be  subordinated  to  the        Obligations  or  any  subordination  provision  in  any  subordination  agreement  that  relates  to  any        Indebtedness that is to be subordinated to the Obligations, or any subordination provision in any        guaranty by any Loan Party of any such Indebtedness, shall cease to be in full force and effect, or        any  Person  (including  the  holder  of  any  such  Indebtedness)  shall  contest  in  any  manner  the        validity, binding nature or enforceability of any such provision; or               (n)   Permitted  Senior  Revolving  Credit  Indebtedness.   There  occurs  an  “Event  of        Default”  (or  any  comparable  term)  under,  and  as  defined  in,  any  Permitted  Senior  Revolving        Credit Document; or               (o)   Regulatory Matters, Etc.  There occurs any of the following: (i) the FDA or any        other Regulatory Authority initiates an enforcement action against, or issues a warning letter with        respect to, any Loan Party or any of their respective Subsidiaries, any Product or any manufacturing        facilities  for  any  Product  that  causes  any  Loan  Party  or  any  of  their  respective  Subsidiaries  to        discontinue or withdraw, or would reasonably be expected to cause any Loan Party to discontinue        or withdraw, marketing or sales of any Product that has generated  or  is  expected  to  generate  at        least  $1,000,000  in  revenue  for  the  Loan  Parties  and  their  respective  Subsidiaries  on  a        consolidated basis over any period of twelve (12) consecutive months, or causes a delay in the        manufacture  or  sale  of  any  such  Product,  which  discontinuance  or  delay  would  reasonably  be        expected to last for more than thirty (30) days, (ii) a recall of any Product that has generated or is        expected  to  generate  at  least  $1,000,000  in  revenue  for  the  Loan  Parties  and  their  respective        Subsidiaries on a consolidated basis over any period of twelve (12) consecutive months or (iii)        any  Loan  Party  enters  into  a  settlement  agreement  with  the  FDA  or  any  other  Regulatory        Authority  that  results  in  aggregate  liability  as  to  any  single  or  related  series  of  transactions,        incidents or conditions, in excess of $1,000,000; or               (p)   Material Adverse Effect.  There occurs any circumstance or circumstances that        could reasonably be expected, either individually or in the aggregate, to have a Material Adverse        Effect.                                        113  CHAR1\1707916v5 





 






         9.02  Remedies Upon Event of Default.         If any Event of Default occurs and is continuing, the Administrative Agent shall, at the request of,  or may, with the consent of, the Required Lenders, take any or all of the following actions:               (a)   declare  the  commitment  of  each  Lender  to  make  Loans  to  be  terminated,        whereupon such commitments and obligation shall be terminated;               (b)   declare the unpaid principal amount of all outstanding Loans, all interest accrued        and unpaid thereon and all other amounts owing or payable hereunder or under any other Loan        Document  to  be  immediately  due  and  payable,  without  presentment,  demand,  protest  or  other        notice of any kind, all of which are hereby expressly waived by the Loan Parties; and               (c)   exercise on behalf of itself and the Lenders all rights and remedies available to it        and the Lenders under the Loan Documents;   provided,  however,  that,  upon  the occurrence  of  an  actual  or  deemed  entry  of  an  order  for  relief  with  respect to the Borrower under the Bankruptcy Code of the United States, the obligation of each Lender to  make Loans shall automatically terminate, the unpaid principal amount of all outstanding Loans and all  interest and other amounts as aforesaid shall automatically become due and payable, in each case without  further act of the Administrative Agent or any Lender.         If the Obligations are accelerated for any reason, the prepayment premium required by Section  2.03(d)  will  also  be  due  and  payable  as  though  such  Obligations  were  voluntarily  prepaid  and  any  discount  on  the  Loans  shall  be  deemed  earned  in  full  and,  in  each  case,  shall  constitute  part  of  the  Obligations, in view of the impracticability and extreme difficulty of ascertaining actual damages and by  mutual  agreement  of  the parties  as to a reasonable calculation  of each Lender’s  lost  profits  as a result  thereof.   Any  prepayment  premium  required  by  Section  2.03(d)  payable  pursuant  to  the  preceding  sentence shall be presumed to be the liquidated damages sustained by each Lender as the result of the  early  termination  and  the  Borrower  and  the  other  Loan  Parties  agree  that  it  is  reasonable  under  the  circumstances  currently  existing.   The  prepayment  premium  required  by  Section  2.03(d)  shall  also  be  payable and any discount on the Loans shall be deemed earned in full, in each case, in the event that the  Obligations (and/or this Agreement) are satisfied or released by foreclosure (whether by power of judicial  proceeding), deed in lieu of foreclosure or by any other means.  TO THE EXTENT PERMITTED BY  APPLICABLE LAW, THE BORROWER AND THE OTHER LOAN PARTIES EXPRESSLY WAIVE  THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS OR  MAY PROHIBIT THE COLLECTION OF THE FOREGOING PREPAYMENT PREMIUM AND ANY  DISCOUNT  ON  THE  LOANS  IN  CONNECTION  WITH  ANY  SUCH  ACCELERATION.   The  Borrower and the other Loan Parties expressly agree that (i) the prepayment premium required by Section  2.03(d) and any discount on the Loans provided for herein is reasonable and is the product of an arm’s  length transaction between sophisticated business people, ably represented by counsel, (ii) the prepayment  premium required by Section 2.03(d) and any discount on the Loans shall be payable notwithstanding the  then prevailing market rates at the time payment is made, (iii) there has been a course of conduct between  the Lenders and the Borrower and the other Loan Parties giving specific consideration in this transaction  for such agreement to pay the prepayment premium required by Section 2.03(d) and any discount on the  Loans, (iv) the Borrower and the other Loan Parties shall be estopped hereafter from claiming differently  than as agreed to in this paragraph and (v) the prepayment premium required by Section 2.03(d) and any  discount on the Loans represent a good faith, reasonable estimate and calculation of the lost profits or  damages of the Lenders and that it would be impractical and extremely difficult to ascertain the actual  amount of damages to the Lenders or profits lost by the Lenders as a result of any early termination.  The  Borrower and the other Loan Parties expressly acknowledge that their agreement to pay the prepayment                                        114  CHAR1\1707916v5 





 






   premium required by Section 2.03(d) and any discount on the Loans to the Lenders as herein described is  a material inducement to the Lenders to make the Loans hereunder.         9.03  Application of Funds.         After the exercise of remedies provided for in Section 9.02 (or after the Loans have automatically  become immediately due and payable as set forth in the proviso to Section 9.02), any amounts received  by  any  Lender  or  the  Administrative  Agent  on  account  of  the  Obligations  shall  be  applied  by  the  Administrative Agent in the following order:               First,  to  payment  of  that  portion  of  the  Obligations  constituting  fees,  indemnities,        expenses  and  other  amounts  (including  fees,  charges  and  disbursements  of  counsel  to  the        Administrative  Agent  and  amounts  payable  under  Article  III)  payable  to  the  Administrative        Agent in its capacity as such;               Second, to payment of that portion of the Obligations constituting fees, indemnities and        other amounts (other than principal and interest) payable to the Lenders (including fees, charges        and disbursements of counsel to the respective Lenders) arising under the Loan Documents and        amounts payable under Article III, ratably among them in proportion to the respective amounts        described in this clause Second payable to them;               Third,  to  payment  of  that  portion  of  the  Obligations  constituting  accrued  and  unpaid        interest  on  and  prepayment  premium  with  respect  to  the  Loans,  ratably  among  the  Lenders  in        proportion to the respective amounts described in this clause Third held by them;               Fourth,  to  payment  of  that  portion  of  the  Obligations  constituting  accrued  and  unpaid        principal of the Loans, ratably among the Secured Parties in proportion to the respective amounts        described in this clause Fourth held by them; and               Last, the balance, if any, after all of the Obligations have been indefeasibly paid in full, to        the Borrower or as otherwise required by Law.                                     ARTICLE X.                                                                      ADMINISTRATIVE AGENT         10.01 Appointment and Authority.               (a)   Each of the Lenders hereby irrevocably appoints Madryn Health Partners, LP to        act on its behalf as the Administrative Agent hereunder and under the other Loan Documents and        authorizes  the  Administrative  Agent  to  take  such  actions  on  its  behalf  and  to  exercise  such        powers as are delegated to the Administrative Agent by the terms hereof or thereof, together with        such actions and powers as are incidental thereto.  The provisions of this Article X are solely for        the benefit of the Administrative Agent and the Lenders, and neither the Borrower nor any other        Loan  Party  shall  have  rights  as  a  third  party  beneficiary  of  any  of  such  provisions.   It  is        understood and agreed that the use of the term “agent” herein or in any other Loan Documents (or        any other similar term) with reference to the Administrative 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 as a matter of market custom, and is intended to create or reflect        only an administrative relationship between contracting parties.                                         115  CHAR1\1707916v5 





 






               (b)   The Administrative Agent shall also act as the “collateral agent” and parallel debt        creditor  under  the  Loan  Documents,  and  each  of  the  Lenders  hereby  irrevocably  appoints  and        authorizes the Administrative Agent to act as the agent of such Lender for purposes of acquiring,        holding and  enforcing (including in its capacity  as  parallel  debt creditor) any  and  all Liens  on        Collateral granted by any of the Loan Parties to secure any of the Obligations, together with such        powers and discretion as are incidental thereto.  In this connection, the Administrative Agent, as        “collateral  agent”  and  any  co-agents,  sub-agents  and  attorneys-in-fact  appointed  by  the        Administrative Agent pursuant to Section 10.05 for purposes of holding or enforcing any Lien on        the Collateral (or any portion thereof) granted under the Collateral Documents, or for exercising        any rights and remedies thereunder at the direction of the Administrative Agent, shall be entitled        to the benefits of all provisions of this Article X and Article XI (including Section 11.04(c), as        though  such  co-agents,  sub-agents  and  attorneys-in-fact  were  the  “collateral  agent”  under  the        Loan Documents) as if set forth in full herein with respect thereto.               (c)   In  connection  with  the  ratification  and  raising  of  any  Loan  Document  into  the        status  of  a  Spanish  Public  Document,  the  Administrative  Agent  shall  act  as  the  agent  and        representative of each Loan Party and is hereby authorised on behalf of each Loan Party to enter        into, enforce the rights of each Loan Party under and represent each Loan Party in respect of the        granting of any Spanish Public Document.               (d)   Notwithstanding the foregoing clause (c), the Administrative Agent, acting at its        discretion and to the extent reasonably possible, may invite the Loan Parties to enter into and/or        to enforce the rights of each Loan Document (including any Collateral Document governed by        Spanish law) jointly with the Administrative Agent. For the avoidance of doubt, this clause (d)        does not grant any right to the Loan Parties to enter into and/or to enforce the rights.                (e)   Each of the Lenders:                     (i)   appoints the Administrative Agent (acting as the “collateral agent”) to act              as agent (mandataire) pursuant to article 1984 of the French Code Civil for the purpose              of  executing  any  Collateral  Documents  governed  by  French  law  (collectively,  the              “French Transaction Security Documents”) in its name;                      (ii)  confirms  its  approval  of  the  French  Transaction  Security  Documents              creating or expressed to create a Lien for its benefit and any Lien created or to be created              pursuant thereto; and                      (iii) irrevocably authorizes, empowers and directs the Administrative Agent,              acting as the “collateral agent” (by itself or by such person(s) as it may nominate) on its              behalf, to perform the duties and to exercise the rights, powers, authorities and discretions              that are specifically delegated to it under or in connection with the French Transaction              Security Documents, and to take any action and exercise any right, power, authority and              discretion upon the terms and conditions set out in this Agreement under or in connection              with the French Transaction Security Documents, in each case together with any other              rights,  powers,  authorities  and  discretions  which  are  incidental  thereto,  it  being              understood that each Lender shall issue special powers of attorney in all cases where the              exercise  of  powers  granted  under  this  Agreement  requires  the  issuance  of  any  such              special  powers  of  attorney,  and  the  Administrative  Agent  accepts  such  appointment,  it              being agreed that notwithstanding any other provision of this Agreement to the contrary,              the provisions of this clause (e) are governed by the laws of France.                                         116  CHAR1\1707916v5 





 






               (f)   Each of the Lenders:                     (i)   appoints the Administrative Agent (acting as the “collateral agent”) to act              as  security  agent  (agent  des  sûretés)  pursuant  to  articles  2488-6  et  seq.  of  the  French              Code civil in respect of the French Transaction Security Documents;                      (ii)  irrevocably authorizes the Administrative Agent acting in such capacity              within  the  meaning  of  article  2488-6  of  the  French  Code  civil  without  limitation  and              notwithstanding  any  other  rights  conferred  upon  the  Administrative  Agent  under  this              Agreement:                           (A)  to  negotiate,  accept  and  execute  in  its  name  and  for  the                    benefit of each Lender the French Transaction Security Documents (and any                    ancillary document in connection therewith);                           (B)  to take, register, administer and enforce any Lien created or                    expressed to be created pursuant to a French Transaction Security Document;                           (C)  to  perform  the  duties  and to  exercise  the rights,  powers  and                    discretions that are specifically delegated to it under or in connection with the                    French  Transaction  Security  Documents,  and  more  generally  to  take  any                    action  and  exercise  any  right,  power,  prerogative  and  discretion  upon  the                    terms and conditions set out in this Agreement or under or in connection with                    the French Transaction Security Documents and to protect the rights of the                    Lenders  under  or  in  connection  with  any  Lien  created  thereunder,  in  each                    case together with any other right, power, prerogative and discretion which is                    incidental thereto;                            (D)  to  release  the  Liens  granted  under  the  French  Transaction                    Security  Documents  in  accordance  with  the  provisions  of  this Agreement;                    and                           (E)  to take any action and exercise any right, power, authority and                    discretion in accordance with the Loan Documents.               The Administrative Agent accepts its appointment as “agent des sûretés” pursuant to this        clause (f) for so long as this Agreement is in force or any French Transaction Security Document        or claim in respect thereof exists, and declares that it holds in its own name the Lien created or        expressed to be created pursuant to the French Transaction Security Documents in its capacity as        security Agent (agent des sûretés) pursuant to articles 2488-6 et seq. of the French Code civil for        the benefit of the Lenders on the terms contained in this Agreement, and accordingly any action        taken by the Administrative Agent in such capacity in connection with or for the purposes of the        Liens  governed  by  French  law  and  the  French  Transaction  Security  Documents  in  accordance        with this Agreement and the French Transaction Security Documents shall be deemed to be taken        by the Administrative Agent acting as “agent des sûretés” in its own name and for the benefit of        the Lenders (other than where the Administrative Agent specifies that it is acting in its capacity as        creditor of the Parallel Debt).               (g)   Each  Lender  acknowledges  that  (i)  the  Administrative  Agent  (acting  in  such        capacity) shall not be liable on its own estate (patrimoine propre) for the payment of any soulte        that would be payable to a Loan Party as a result of the enforcement of a Lien created pursuant to                                        117  CHAR1\1707916v5 





 






         a French Transaction Security Document and (ii) the payment of any sums in respect of a soulte         (if any) shall be borne by each Lender in accordance with this Agreement.               (h)   To  the  fullest  extent  permitted  by  applicable  Law,  the  Administrative  Agent        appointed as agent des sûretés pursuant to this Section 10.01 shall be entitled to exercise all rights        and benefit from all protections conferred upon the Administrative Agent under this Agreement        or any other Loan Document.                (i)   Any  change  of  the  Administrative  Agent  acting  as agent  des  sûretés        (remplacement  conventionnel  or remplacement  judiciaire)  appointed  pursuant  to  this  Section        10.01 shall be made in accordance with Section 10.06 and article 2488-11 of the French Code        civil.               (j)   Notwithstanding any other provision of this Agreement to the contrary, clauses        (f)  through  (i)  of this  Section  10.01,  insofar  as  they  relate  to  the  French  Transaction  Security        Documents  and  the  role  of  the  Administrative  Agent  acting  as agent  des  sûretés  in  respect        thereof, shall be governed by French law.               (k)   Each of the Secured Parties (other than the Administrative Agent):                     (i)   appoints, with the express consent pursuant to article 1395 of the Italian              Civil  Code,  the  Administrative  Agent  as mandatario  con  rappresentanza  (common              representative) for the purposes of executing in its name and on its behalf any Collateral              Document  which  is  expressed  to  be  or  construed  to  be  governed  by  Italian  Law  (the              “Italian Law Security Documents”) and security agent (the “Security Agent”) under and              for the purposes of any Italian Law Security Documents                     (ii)  grants  the  Administrative  Agent  the  power  to,  in  its  name  and  on  its              behalf,  enter  into  any  and  each  Italian  Law  Security  Document  (including  any              amendment  or  extension  thereof),  execute  any  other  agreement  or  instrument,  give  or              receive any notice, to collect any and all amounts due to the Secured Parties under each              such Italian Law Security Document and take any other action in relation to the creation,              perfection, maintenance, enforcement and release of the Lien created thereunder in the              name  and  on  behalf  of  the  Secured  Parties,  including  (without  limitation  and  for  the              avoidance of doubt) any confirmation and extension of the Lien created thereunder;                     (iii)  authorizes  the  Administrative  Agent  to,  in  its  name  and  on  its  behalf,              exercise  such  rights,  powers  and  discretions  as  are  specifically  delegated  to  the              Administrative Agent by the terms hereof, the other Loan Documents and the Italian Law              Security  Documents  together  with  all  rights,  powers  and  discretions  as  are  reasonably              incidental thereto or necessary to give effect to the provisions contained herein;                                        (iv)  hereby confirms that, in the event that any Lien created under the Italian              Law Security Documents remains registered in the name of a Secured Party after it has              ceased  to  be  a  Secured  Party,  then  the  Administrative  Agent  shall  remain  empowered              under this paragraph to execute a release of such Lien in its name and on its behalf; and                                        (v)   undertakes to ratify and approve any such action taken in the name and              on  behalf  of  the  Secured  Parties  by  the  Administrative  Agent  acting  in  its  appointed              capacity.                                                            118  CHAR1\1707916v5 





 






               (l)   Each  Secured  Party  other  than  the  Administrative  Agent  acknowledges  and        agrees  that  the  Administrative  Agent  may  enter  in  its  name  and  on  its  behalf  as  direct        representative  into  contractual  arrangements  pursuant  to  or  in  connection  with  the  Italian  Law        Security  Documents  to  which  the  Security  Agent  is  also  a  party  (in  its  capacity  as  common        representative  or  otherwise)  and  expressly  authorizes  the  Administrative  Agent,  pursuant  to        article 1395 of the Italian Civil Code.  The Secured Parties expressly waive any right they may        have under article 1394 of the Italian Civil Code in respect of contractual arrangements entered        into by the Administrative Agent in their name and on their behalf pursuant to or in connection        with the Italian Law Security Documents.               (m)   The  above  notwithstanding,  the  Administrative  Agent  in  its  quality  as        mandatario  con  rappresentanza,  acting  at  its  discretion  and  to  the  extent  reasonably  possible,        may  invite  the  other  Secured  Parties  to  enter  into  and/or  to  enforce  the  rights  of  each  Loan        Document jointly with the Administrative Agent. For the avoidance of doubt, the provision above        does  not grant  any  right  to  the  other  Secured  Parties  to  enter  into  and/or  to  enforce  the  rights        under any Loan Document jointly with the Administrative Agent.         10.02 Rights as a Lender.         The Person serving as the Administrative Agent hereunder shall have the same rights and powers  in  its  capacity  as  a  Lender  as  any  other  Lender  and  may  exercise  the  same  as  though  it  were  not  the  Administrative Agent and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or  unless the context otherwise requires, include the Person serving as the Administrative Agent hereunder  in its individual capacity.  Such Person and its Affiliates may accept deposits from, lend money to, own  securities of, act as the financial advisor or in any other advisory capacity for and generally engage in any  kind of business with any Loan Party or any Subsidiary or other Affiliate thereof as if such Person were  not the Administrative Agent hereunder and without any duty to account therefor to the Lenders.         10.03 Exculpatory Provisions.         The Administrative Agent shall not have any duties or obligations except those expressly set forth  herein  and  in  the  other  Loan  Documents,  and  its  duties  hereunder  shall  be  administrative  in  nature.   Without limiting the generality of the foregoing, the Administrative Agent:               (a)   shall not be subject to any fiduciary or other implied duties, regardless of whether        a Default has occurred and is continuing;               (b)   shall  not  have  any  duty  to  take  any  discretionary  action  or  exercise  any        discretionary powers, except discretionary rights and powers expressly contemplated hereby or by        the  other Loan  Documents that  the  Administrative  Agent is required  to exercise  as  directed  in        writing by the Required Lenders (or such other number or percentage of the Lenders as shall be        expressly provided for herein or in the other Loan Documents); provided, that, the Administrative        Agent shall not be required to take any action that, in its opinion or the opinion of its counsel,        may expose the Administrative Agent to liability or that is contrary to any Loan Document or        applicable law, including for the avoidance of doubt any action that may be in violation of the        automatic  stay  under  any  Debtor  Relief  Law  or  that  may  affect  a  forfeiture,  modification  or        termination of property of a Defaulting Lender in violation of any Debtor Relief Law; and               (c)   shall not, except as expressly set forth herein and in the other Loan Documents,        have  any  duty  to  disclose,  and  shall  not  be  liable  for  the  failure  to  disclose,  any  information                                         119  CHAR1\1707916v5 





 






         relating  to  any  Loan  Party  or  any  of  its  Affiliates  that  is  communicated  to  or  obtained  by  the        Person serving as the Administrative Agent or any of its Affiliates in any capacity.         The Administrative Agent shall not be liable for any action taken or not taken by it (i) with the  consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as  shall be necessary, or as the Administrative Agent shall believe in good faith shall be necessary, under the  circumstances  as  provided  in  Section  11.01  and  Section  9.02)  or  (ii)  in  the  absence  of  its  own  gross  negligence or willful misconduct as determined by a court of competent jurisdiction by final and non- appealable judgment.  The Administrative Agent shall be deemed not to have knowledge of any Default  unless  and until notice describing such  Default is given  in  writing to the  Administrative  Agent  by the  Borrower or a Lender.         The Administrative Agent shall not be responsible for or have any duty to ascertain or inquire  into (i) any statement, warranty or representation made in or in connection with this Agreement or any  other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or  thereunder  or  in  connection  herewith  or  therewith,  (iii)  the  performance  or  observance  of  any  of  the  covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any  Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan  Document  or any  other  agreement, instrument  or  document or  (v) the  satisfaction  of  any  condition set  forth  in  Article V  or  elsewhere  herein,  other  than to  confirm receipt  of items  expressly  required  to be  delivered to the Administrative Agent.         10.04 Reliance by Administrative Agent.         The  Administrative  Agent  shall  be  entitled  to  rely  upon,  and  shall  not  incur  any  liability  for  relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing  (including any electronic message, Internet or intranet website posting or other distribution) believed by it  to  be  genuine  and  to  have  been  signed,  sent  or  otherwise  authenticated  by  the  proper  Person.   The  Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by  it  to  have  been  made  by  the  proper  Person,  and  shall  not  incur  any  liability  for  relying  thereon.   In  determining compliance with any condition hereunder to the making of a Loan, that by its terms must be  fulfilled  to  the  satisfaction  of  a  Lender,  the  Administrative  Agent  may  presume  that such  condition  is  satisfactory to  such  Lender  unless the  Administrative Agent  shall have  received  notice  to  the contrary  from such Lender prior to the making of such Loan.  The Administrative Agent may consult with legal  counsel (who may be counsel for the Loan Parties), independent accountants and other experts selected by  it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such  counsel, accountants or experts.         10.05 Delegation of Duties.         The Administrative Agent may perform any and all of its duties and exercise its rights and powers  hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the  Administrative Agent.  The Administrative Agent and any such sub-agent may perform any and all of its  duties and exercise its rights and powers by or through their respective Related Parties.  The exculpatory  provisions  of  this  Article  X  shall  apply  to  any  such  sub-agent  and  to  the  Related  Parties  of  the  Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection  with the syndication of the Facilities provided for herein as well as activities as Administrative Agent.   The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents  except  to  the  extent  that  a  court  of  competent  jurisdiction  determines  in  a  final  and  non-appealable  judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection  of such sub-agents.                                        120  CHAR1\1707916v5 





 






         10.06 Resignation of Administrative Agent.         The Administrative Agent may resign as Administrative Agent at any time by giving thirty (30)  days advance notice thereof to the Lenders and the Borrower and, thereafter, the retiring Administrative  Agent  shall  be  discharged  from  its  duties  and  obligations  hereunder.   Upon  any  such  resignation,  the  Required Lenders shall have the right, subject to the approval of the Borrower (so long as no Event of  Default  has  occurred  and  is  continuing;  such  approval  not  to  be  unreasonably  withheld),  to  appoint  a  successor Administrative Agent.  If no successor Administrative Agent shall have been so appointed by  the Required Lenders, been approved (so long as no Event of Default has occurred and is continuing) by  the Borrower or have accepted such appointment within thirty (30) days after the Administrative Agent’s  giving of notice of resignation, then the Administrative Agent may, on behalf of the Lenders, appoint a  successor Administrative Agent reasonably acceptable to the Borrower (so long as no Default or Event of  Default  has  occurred  and  is  continuing).   Upon  the  acceptance  of  any  appointment  as  Administrative  Agent  hereunder  by  a  successor  Administrative  Agent,  such  successor  Administrative  Agent  shall  thereupon  succeed  to  and  become  vested  with  all  rights,  powers,  privileges  and  duties  of  the  retiring  Administrative Agent.  After any retiring Administrative Agent’s resignation hereunder as Administrative  Agent, the provisions of this Section 10.06 shall continue in effect for its benefit in respect of any actions  taken  or  omitted  to  be  taken  by  it  while  it  was  acting  as  Administrative  Agent.   If  no  successor  has  accepted appointment as Administrative Agent by the date which is thirty (30) days following a retiring  Administrative  Agent’s  notice  of  resignation,  the  retiring  Administrative  Agent’s  resignation  shall  nevertheless thereupon become effective and the Required Lenders shall perform all of the duties of the  Administrative  Agent  hereunder  until  such  time,  if  any,  as  the  Required  Lenders  appoint  a  successor  agent as provided for above.         Any  successor  Administrative  Agent  and  each  of  the  other  parties  hereto  shall  have  the  same  rights  and  obligations  amongst  themselves  as  they  would  have  had  if  such  successor  Administrative  Agent  had  been  an  original  party  hereto,  including  the  capacity  to  represent  any  Loan  Party  for  the  purposes of raising any Loan Document to the status of a Spanish Public Document.         10.07 Non-Reliance on Administrative Agent and Other Lenders.         Each  Lender  acknowledges  that  it  has,  independently  and  without  reliance  upon  the  Administrative Agent or any other Lender or any of their Related Parties and based on such documents  and information as it has deemed appropriate, made its own credit analysis and decision to enter into this  Agreement.   Each  Lender also acknowledges that  it will,  independently and  without reliance upon the  Administrative Agent or any other Lender or any of their Related Parties and based on such documents  and information as it shall from time to time deem appropriate, continue to make its own decisions in  taking or not taking action under or based upon this Agreement, any other Loan Document or any related  agreement or any document furnished hereunder or thereunder.         10.08 Administrative 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  Loan  Party,  the  Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as  herein  expressed  or  by  declaration  or  otherwise  and  irrespective  of  whether  the  Administrative  Agent  shall have made any demand on the Borrower) 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 Loans and all other Obligations that are owing and unpaid and to file                                        121  CHAR1\1707916v5 





 






         such other documents as may be necessary or advisable in order to have the claims of the Lenders        and the Administrative Agent (including any claim for the reasonable compensation, expenses,        disbursements  and  advances  of the  Lenders  and  the Administrative  Agent  and  their  respective        agents and counsel and all other amounts due the Lenders and the Administrative Agent under        Section 11.04) 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 the Administrative  Agent  and,  in  the  event  that  the  Administrative  Agent  shall  consent  to  the  making  of  such  payments  directly  to  the  Lenders,  to  pay  to  the  Administrative  Agent  any  amount  due  for  the  reasonable  compensation,  expenses,  disbursements  and  advances  of  the  Administrative  Agent  and  its  agents  and  counsel, and any other amounts due the Administrative Agent under Section 11.04.         Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or  consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment  or composition affecting the Obligations or the rights of any Lender or to authorize the Administrative  Agent to vote in respect of the claim of any Lender in any such proceeding.         10.09 Collateral and Guaranty Matters.         The Lenders irrevocably authorize the Administrative Agent, at its option and in its discretion,               (a)   to  release any  Lien  on any  Collateral granted to  or held  by  the  Administrative        Agent under any Loan Document (i) upon termination of all unused Commitments and payment        in full of all Obligations (other than contingent indemnification obligations for which no claim        has been asserted), (ii) that is sold or otherwise disposed of or to be sold or otherwise disposed of        as part of or in connection with any sale or other Disposition permitted hereunder or under any        other  Loan  Document  or  any  Involuntary  Disposition  or  (iii)  as  approved  in  accordance  with        Section 11.01;               (b)   to subordinate any Lien on any property granted to or held by the Administrative        Agent under any Loan Document to the holder of any Lien on such property that is permitted by        Section 8.01(i); and               (c)   to release any Guarantor from its obligations under the Guaranty if such Person        ceases to be a Subsidiary as a result of a transaction permitted under the Loan Documents.         Upon  request  by  the  Administrative  Agent  at  any  time,  the  Required  Lenders  will  confirm  in        writing  the  Administrative  Agent’s  authority  to  release  or  subordinate  its  interest  in  particular        types or items of property, or to release any Guarantor from its obligations under the Guaranty,        pursuant to this Section 10.09.         The Administrative Agent shall not be responsible for or have a duty to ascertain or inquire into        any representation or warranty regarding the existence, value or collectability of the Collateral,        the existence, priority or perfection of the Administrative Agent’s Lien thereon, or any certificate        prepared  by  any  Loan  Party  in  connection  therewith,  nor  shall  the  Administrative  Agent  be        responsible  or  liable  to  the  Lenders  for  any  failure  to  monitor  or  maintain  any  portion  of  the        Collateral.                                        122  CHAR1\1707916v5 





 






                                    ARTICLE XI.                                                                          MISCELLANEOUS         11.01 Amendments, Etc.         No amendment or waiver of any provision of this Agreement or any other Loan Document, and  no consent to any departure by the Borrower or any other Loan Party therefrom, shall be effective unless  in writing signed by the Required Lenders and the Borrower or the applicable Loan Party, as the case may  be, and acknowledged by the Administrative Agent, and each such waiver or consent shall be effective  only in the specific instance and for the specific purpose for which given; provided, further, that:               (a)   no such amendment, waiver or consent shall:                     (i)   extend  or  increase  the  Commitment  of  a  Lender  (or  reinstate  any              Commitment  terminated  pursuant  to  Section  9.02)  without  the  written  consent  of  such              Lender  whose  Commitment  is  being  extended  or  increased  (it  being  understood  and              agreed that a waiver of any condition precedent set forth in Section 5.03 or of any Default              or a mandatory reduction in Commitments is not considered an extension or increase in              Commitments of any Lender);                     (ii)  postpone any date fixed by this Agreement or any other Loan Document              for any payment of principal (excluding  mandatory prepayments),  interest,  prepayment              premiums, fees or other amounts due to the Lenders (or any of them) or any scheduled or              mandatory reduction of the Commitments hereunder or under any other Loan Document              without  the  written  consent  of each  Lender  entitled to receive  such  payment  or  whose              Commitments are to be reduced;                     (iii) reduce  the  principal  of,  the  rate  of  interest  specified  herein  on  or  the              prepayment premium specified herein on any Loan, or any fees or other amounts payable              hereunder or under any other Loan Document without the written consent of each Lender              entitled to receive such payment of principal, interest, fees or other amounts; provided,              however, that, only the consent of the Required Lenders shall be necessary to amend the              definition of “Default Rate” or to waive any obligation of the Borrower to pay interest at              the Default Rate;                     (iv)  change  any  provision  of  this  Section  11.01(a)  or  the  definition  of              “Required Lenders” without the written consent of each Lender directly affected thereby;                     (v)   except  in  connection  with  a  Disposition  permitted  under  Section  8.05,              release all or substantially all of the Collateral without the written consent of each Lender              directly affected thereby;                     (vi)  release  the  Borrower  or,  except  in  connection  with  a  merger  or              consolidation permitted under Section 8.04 or a Disposition permitted under Section 8.05,              all  or  substantially  all  of  the  Guarantors  without  the  written  consent  of  each  Lender              directly affected thereby, except to the extent the release of any Guarantor is permitted              pursuant to Section 10.09 (in which case such release may be made by the Administrative              Agent acting alone); and                                         123  CHAR1\1707916v5 





 






               (b)   unless  also  signed  by  the  Administrative  Agent,  no  amendment,  waiver  or        consent shall affect the rights or duties of the Administrative Agent under this Agreement or any        other Loan Document;   provided, however, that, notwithstanding anything to the contrary herein, (i) no Defaulting Lender shall  have  any  right  to  approve  or  disapprove  any  amendment,  waiver  or  consent  hereunder  (and  any  amendment, waiver or consent which by its terms requires the consent of all Lenders or each affected  Lender may be effected with the consent of the applicable Lenders other than Defaulting Lenders), except  that (x) the Commitments of any Defaulting Lender may not be increased or extended without the consent  of such Lender and (y) any waiver, amendment or modification requiring the consent of all Lenders or  each affected Lender that by its terms affects any Defaulting Lender more adversely than other affected  Lenders shall require the consent of such Defaulting Lender, (ii) each Lender is entitled to vote as such  Lender  sees  fit  on  any  bankruptcy  reorganization  plan  that  affects  the  Loans  and  each  Lender  acknowledges  that  the  provisions  of  Section  1126(c)  of  the  Bankruptcy  Code  of  the  United  States  supersedes  the  unanimous  consent  provisions  set  forth  herein  and  (iii)  the  Required  Lenders  shall  determine whether or not to allow a Loan Party to use cash collateral in the context of a bankruptcy or  insolvency proceeding and such determination shall be binding on all of the Lenders.  Notwithstanding  anything to the contrary set forth herein, in order to implement the Term C Facility, this Agreement may  be amended for such purpose by the Loan Parties, the Administrative Agent and the Term C Lenders.   It  is  understood  and  agreed  that,  following  the  Funding  Date,  subject  to  the  written  consent  of  the  Administrative  Agent  and  the  Required  Lenders  (such  consent  not  to  be  unreasonably  withheld  or  delayed) effectuated in accordance with this Section 11.01, the Loan Parties shall be permitted to convey  the Business IP Rights to a Qualified Loan Party in order to facilitate the Borrower’s intellectual property  strategy.   Notwithstanding any provision herein to the contrary, the Administrative Agent and the Borrower may  make amendments contemplated by Section 3.05.         11.02 Notices and Other Communications; Facsimile Copies.               (a)   Notices  Generally.   Except  in  the  case  of  notices  and  other  communications        expressly permitted to be given by telephone (and except as provided in subsection (b) below), all        notices and other communications provided for herein shall be in writing and shall be delivered        by hand or overnight courier service, mailed by certified or registered mail or sent by facsimile as        follows, and all notices and other communications expressly permitted hereunder to be given by        telephone shall be made to the applicable telephone number, as follows:                     (i)   if to the Borrower or any other Loan Party or the Administrative Agent,              to the address, facsimile number, electronic mail address or telephone number specified              for such Person on Schedule 11.02; and                     (ii)  if to any other Lender, to the address, facsimile number, electronic mail              address or telephone number of its Lending Office (whether specified on Schedule 11.02              or separately specified to the Borrower and the Administrative Agent).               Notices and other communications sent by hand or overnight courier service, or mailed        by certified or registered mail, shall be deemed to have been given when received; notices and        other communications sent by facsimile shall be deemed to have been given when sent (except        that, if not given during normal business hours for the recipient, shall be deemed to have been        given at the opening of business on the next Business Day for the recipient).  Notices and other                                        124  CHAR1\1707916v5 





 






         communications  delivered  through  electronic  communications  to  the  extent  provided  in        subsection (b) below, shall be effective as provided in such subsection (b).               (b)   Electronic Communications.  Notices and other communications to the Lenders        hereunder  may  be  delivered  or  furnished  by  electronic  communication  (including  e-mail  and        Internet  or  intranet  websites)  pursuant  to  procedures  approved  by  the  Administrative  Agent;        provided, that, the foregoing shall not apply to notices to any Lender pursuant to Article II if such        Lender has notified the Administrative Agent that it is incapable of receiving notices under such        Article by electronic communication.  The Administrative Agent or the Borrower may each, in        their respective discretion, agree to accept notices and other communications to it hereunder by        electronic  communications  pursuant  to  procedures  approved  by  it;  provided,  that,  approval  of        such procedures may be limited to particular notices or communications.               Unless  the  Administrative  Agent  otherwise  prescribes,  (i)  notices  and  other        communications sent to an e-mail address shall be deemed received upon the sender’s receipt of        an  acknowledgement  from  the  intended  recipient  (such  as  by  the  “return  receipt  requested”        function,  as  available,  return  e-mail  or  other  written  acknowledgement)  and  (ii)  notices  or        communications  posted  to  an  Internet  or  intranet  website  shall  be  deemed  received  upon  the        deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause        (i)  of  notification  that  such  notice  or  communication  is  available  and  identifying  the  website        address  therefor;  provided,  that,  for  both  clauses  (i)  and  (ii),  if  such  notice,  email  or  other        communication is not sent during the normal business hours of the recipient, such notice, email or        communication shall be deemed to have been sent at the opening of business on the next business        day for the recipient.               (c)   Change  of  Address,  Etc.   Each  of  the  Borrower,  the  Lenders  and  the        Administrative  Agent  may  change  its  address,  facsimile  or  telephone  number  for  notices  and        other communications hereunder by notice to the other parties hereto.  In addition, each Lender        agrees  to  notify  the  Administrative  Agent  from  time  to  time  to  ensure that  the  Administrative        Agent has on record (i) an effective address, contact name, telephone number, facsimile number        and  electronic  mail  address  to  which  notices  and  other  communications  may  be  sent  and  (ii)        accurate wire instructions for such Lender.               (d)   Reliance by Administrative Agent and Lenders.  The Administrative Agent and        the Lenders shall be entitled to rely and act upon any notices (including telephonic or electronic        Loan Notices) purportedly given by or on behalf of any Loan Party even if (i) such notices were        not made in a manner specified herein, were incomplete or were not preceded or followed by any        other  form  of  notice  specified  herein  or  (ii)  the  terms  thereof,  as  understood  by  the  recipient,        varied  from  any  confirmation  thereof.   The  Loan  Parties  shall  indemnify  the  Administrative        Agent, each Lender and the Related Parties of each of them from all losses, costs, expenses and        liabilities resulting from the reliance by such Person on each notice purportedly given by or on        behalf of a Loan Party.  All telephonic notices to and other telephonic communications with the        Administrative  Agent  may  be  recorded  by  the  Administrative  Agent,  and  each  of  the  parties        hereto hereby consents to such recording.         11.03 No Waiver; Cumulative Remedies; Enforcement.         No  failure  by  any  Lender  or  the  Administrative  Agent  to  exercise,  and  no  delay  by  any  such  Person in exercising, any right, remedy, power or privilege hereunder or under any other Loan Document  shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or  privilege  hereunder  preclude  any  other  or  further  exercise  thereof  or  the  exercise  of  any  other  right,                                        125  CHAR1\1707916v5 





 






   remedy, power or privilege.  The rights, remedies, powers and privileges herein provided, and provided  under each other Loan Document, are cumulative and not exclusive of any rights, remedies, powers and  privileges provided by law.         Notwithstanding anything to the contrary contained herein or in any other Loan Document, the  authority to enforce rights and remedies hereunder and under the other Loan Documents against the Loan  Parties or any of them shall be vested exclusively in, and all actions and proceedings at law in connection  with  such  enforcement  shall  be  instituted  and  maintained  exclusively  by,  the  Administrative  Agent  in  accordance  with  Section  10.01  for  the  benefit  of  all  the  Secured  Parties;  provided,  however,  that,  the  foregoing shall not prohibit (a) the Administrative Agent from exercising on its own behalf the rights and  remedies that inure to its benefit (solely in its capacity as Administrative Agent) hereunder and under the  other  Loan  Documents, (b)  any  Lender  from  exercising setoff  rights in  accordance  with  Section 11.08  (subject to the terms of Section 2.11) or (c) any Lender from filing proofs of claim or appearing and filing  pleadings on its own behalf during the pendency of a proceeding relative to any Loan Party under any  Debtor Relief Law; and provided, further, that, if at any time there is no Person acting as Administrative  Agent hereunder and under the other Loan Documents, then (i) the Required Lenders shall have the rights  otherwise  ascribed  to  the  Administrative  Agent  pursuant  to  Section  10.01  and  (ii)  in  addition  to  the  matters set forth in clauses (b) and (c) of the preceding proviso and subject to Section 2.11, any Lender  may, with the consent of the Required Lenders, enforce any rights and remedies available to it and as  authorized by the Required Lenders.         11.04 Expenses; Indemnity; and Damage Waiver.               (a)   Costs and Expenses.  The Loan Parties shall pay (i) all out-of-pocket expenses        incurred  by  the  Administrative  Agent  and  its  Affiliates  (including  the  fees,  charges  and        disbursements  of  one  primary  counsel  and, as  reasonably  necessary,  one  local counsel  in  each        relevant  jurisdiction  for  the  Administrative  Agent  and  one  specialty  counsel  in  each  relevant        specialty  for  the  Administrative  Agent),  in  connection  with  the  preparation,  negotiation,        execution, delivery and administration of this Agreement and the other Investment Documents or        any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the        transactions contemplated hereby or thereby shall be consummated) or the administration of this        Agreement and the other Investment Documents and (ii) all out-of-pocket expenses incurred by        the Administrative Agent or any Lender (including the fees, charges and disbursements of one        primary counsel for the Administrative Agent and the Lenders and, as reasonably necessary, one        local counsel for the Administrative Agent and the Lenders in any relevant jurisdiction and one        specialty counsel in each relevant specialty for the Administrative Agent and the Lenders (and of        such other counsel as necessary in the event of a conflict), and shall pay all fees and time charges        for attorneys who may be employees of the Administrative Agent or any Lender, in connection        with the enforcement or protection of its rights (A) in connection with this Agreement and the        other Investment Documents, including its rights under this Section 11.04 or (B) in connection        with the Loans made hereunder, including all such out-of-pocket expenses incurred during any        workout, restructuring or negotiations in respect of such Loans.               (b)   Indemnification  by  the  Loan  Parties.   The  Loan  Parties  shall  indemnify  the        Administrative  Agent  (and  any  sub-agent thereof)  and  each  Lender,  and each Related  Party of        any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold        each  Indemnitee  harmless  from,  any  and  all  losses,  claims,  damages,  liabilities  and  related        expenses (including the fees, charges and disbursements of any counsel for any Indemnitee), and        shall  indemnify  and  hold  harmless  each  Indemnitee  from  all  fees  and  time  charges  and        disbursements  for  attorneys  who  may  be  employees  of  any  Indemnitee,  incurred  by  any        Indemnitee  or  asserted  against  any  Indemnitee  by  any  Person  (including  the  Borrower  or  any                                        126  CHAR1\1707916v5 





 






         other Loan Party) arising out of, in connection with, or as a result of (i) the execution or delivery        of this Agreement, any other Investment Document or any agreement or instrument contemplated        hereby or thereby, the performance by the parties hereto of their respective obligations hereunder        or thereunder or the consummation of the transactions contemplated hereby or thereby, or, in the        case  of  the  Administrative  Agent (and  any  sub-agent  thereof) and its  Related  Parties  only, the        administration of this Agreement and the other Investment Documents, (ii) any Loan or the use or        proposed  use  of  the  proceeds  therefrom,  (iii)  any  actual  or  alleged  presence  or  release  of        Hazardous Materials on or from any property owned or operated by a Loan Party or any of its        Subsidiaries,  or  any  Environmental  Liability  related  in  any  way  to  a  Loan  Party  or  any  of  its        Subsidiaries, (iv) any actual or prospective claim, litigation, investigation or proceeding relating        to  an  allegation  that  the  use,  advertisement,  display,  importation,  manufacture,  marketing,        offering  for  sale,  performance,  preparation  of  derivative  works  based  upon,  promotion,        reproduction, sale, use and/or other distribution of a Product by any Loan Party, any Subsidiary or        any of their respective licensees, or the conduct of the Businesses, constitutes the infringement,        violation or misappropriation of the rights of any Person or (v) any actual or prospective claim,        litigation, investigation or proceeding relating to any of the foregoing, whether based on contract,        tort or any other theory, whether brought by a third party or by the Borrower or any other Loan        Party, and regardless of whether any Indemnitee is a party thereto, in all cases, whether or not        caused by or arising, in whole or in part, out of the comparative, contributory or sole negligence        of the Indemnitee; provided, that, such indemnity shall not, as to any Indemnitee, be available to        the extent that such losses, claims, damages, liabilities or related expenses (x) are determined by a        court of competent jurisdiction by final and nonappealable judgment to have resulted from the        gross negligence or willful misconduct of such Indemnitee, if such Borrower or such Loan Party        has obtained a final and nonappealable judgment in its favor on such claim as determined by a        court of competent jurisdiction or (y) arise solely from a dispute between or among Indemnitees        and  (1)  do  not  involve  any  action  or  inaction  by  any  Loan  Party  or  any  of  their  respective        Affiliates  or  (2)  do  not  relate  to  any  action  of  such  Indemnitee  in  its  capacity  as  the        Administrative  Agent  as  determined  by  a  court  of  competent  jurisdiction  in  a  final  and        nonappealable judgment.  This Section 11.04(b) shall not apply with respect to taxes other than        any taxes that represent losses, claims, damages, etc. arising from any non-tax claim.               (c)   Reimbursement by Lenders.  To the extent that the Loan Parties for any reason        fail to indefeasibly pay any amount required under subsection (a) or (b) of this Section 11.04 to        be  paid  by  them  to  the  Administrative  Agent  (or  any  sub-agent  thereof)  or  any  Related  Party        thereof, each Lender severally agrees to pay to the Administrative Agent (or any such sub-agent)        or such Related Party, as the case may be, such Lender’s pro rata share (determined as of the        time  that  the  applicable  unreimbursed  expense  or  indemnity  payment  is  sought  based  on  each        Lender’s share of the Total Credit Exposure at such time) of such unpaid amount (including any        such unpaid amount in respect of a claim asserted by such Lender), such payment to be made        severally among them based on such Lenders’ Applicable Percentages (determined as of the time        that  the  applicable  unreimbursed  expense  or  indemnity  payment  is  sought);  provided,  further,        that, the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as        the case may be, was incurred by or asserted against the Administrative Agent (or any such sub-       agent), or against any Related Party thereof acting for the Administrative Agent (or any such sub-       agent) in connection with such capacity.  The obligations of the Lenders under this subsection (c)        are subject to the provisions of Section 2.10(b).               (d)   Waiver  of  Consequential  Damages,  Etc.   To  the  fullest  extent  permitted  by        applicable law, no Loan Party shall assert, and each Loan Party hereby waives, and acknowledges        that no other Person shall have, any claim against any Indemnitee, on any theory of liability, for        special,  indirect,  consequential  or  punitive  damages  (as  opposed  to  direct  or  actual  damages)                                        127  CHAR1\1707916v5 





 






         arising  out  of,  in  connection  with,  or  as  a  result  of,  this  Agreement,  any  other  Investment        Document  or  any agreement  or instrument contemplated hereby, the transactions contemplated        hereby  or thereby,  any  Loan  or the  use  of  the  proceeds thereof.   No  Indemnitee  referred to  in        subsection (b) above 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        Investment Documents or the transactions contemplated hereby or thereby.               (e)   Payments.  All amounts due under this Section 11.04 shall be payable not later        than ten (10) Business Days after demand therefor.               (f)   Survival.  The agreements in this Section 11.04 and the indemnity provisions of        Section  11.02(d) shall  survive  the  resignation  of  the  Administrative  Agent,  the  replacement  of        any Lender, the termination of the Commitments and the repayment, satisfaction or discharge of        all the other Obligations.         11.05 Payments Set Aside.         To the extent that any payment by or on behalf of any Loan Party is made to the Administrative  Agent or any Lender, or the Administrative Agent or any Lender exercises its right of setoff, and such  payment  or  the  proceeds  of  such  setoff  or  any  part  thereof is  subsequently  invalidated,  declared  to  be  fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by the  Administrative  Agent  or  such  Lender  in  its  discretion)  to  be  repaid  to  a trustee,  receiver  or  any  other  party, in connection with any proceeding under any Debtor Relief Law or otherwise, then (a) to the extent  of such recovery, the obligation or part thereof originally intended to be satisfied shall be revived and  continued in full force and effect as if such payment had not been made or such setoff had not occurred,  and (b) each Lender severally agrees to pay to the Administrative Agent upon demand its applicable share  (without  duplication)  of  any  amount  so  recovered  from  or  repaid  by  the  Administrative  Agent,  plus  interest thereon from the date of such demand to the date such payment is made at a rate per annum equal  to the Federal Funds Rate from time to time in effect.  The obligations of the Lenders under clause (b) of  the preceding sentence shall survive the payment in full of the Obligations and the termination of this  Agreement.         11.06 Successors and Assigns.               (a)   Successors  and  Assigns  Generally.   The  provisions  of  this  Agreement  and  the        other Loan Documents shall be binding upon and inure to the benefit of the parties hereto and        thereto  and  their  respective  successors  and  assigns  permitted  hereby,  except  that  the  Borrower        may not assign or otherwise transfer any of their rights or obligations hereunder or thereunder        without the  prior  written  consent  of the  Administrative  Agent and each  Lender  and no  Lender        may  assign  or  otherwise  transfer  any  of  its  rights  or  obligations  hereunder  except  (i)  to  an        assignee in accordance with the provisions of subsection (b) of this Section 11.06, (ii) by way of        participation in accordance with the provisions of subsection (d) of this Section 11.06 or (iii) by        way of pledge or assignment of a security interest subject to the restrictions of subsection (e) of        this Section 11.06 (and any other attempted assignment or transfer by any party hereto shall be        null and void).  Nothing in this Agreement, expressed or implied, shall be construed to confer        upon any Person (other than the parties hereto, their respective successors and assigns permitted        hereby,  Participants  to  the  extent  provided  in  subsection  (e)  of  this  Section  11.06  and,  to  the        extent expressly contemplated hereby, the  Related  Parties of each  of the  Administrative  Agent        and  the  Lenders)  any  legal  or  equitable  right,  remedy  or  claim  under  or  by  reason  of  this        Agreement.                                        128  CHAR1\1707916v5 





 






            (b)   Assignments  by Lenders.  Any  Lender  may at  any  time  assign  to  one  or  more       assignees all or a portion of its rights and obligations under this Agreement and the other Loan        Documents (including all or a portion of its Commitments under any Facility and the Loans at the        time owing to it (in each case with respect to any Facility)); provided, that, any such assignment        shall be subject to the following conditions:                     (i)   Minimum Amounts.                          (A)   in the case of an assignment of the entire remaining amount of                   the assigning Lender’s Commitment with respect to any Facility and/or the Loans                    with  respect  to  any  Facility  at  the  time  owing  to  it  or  contemporaneous                    assignments to related Approved Funds that equal at least the amount specified in                    subsection (b)(i)(B)  of this  Section 11.06 in the aggregate  or  in the  case  of  an                    assignment  to  a  Lender,  an  Affiliate  of  a  Lender  or  an  Approved  Fund,  no                    minimum amount need be assigned; and                           (B)   in any case not described in subsection (b)(i)(A) of this Section                   11.06,  the  aggregate  amount  of  the  applicable  Commitment  (which  for  this                    purpose  includes  Loans  outstanding  thereunder)  or,  if  the  applicable                    Commitment is not then in effect, the principal outstanding balance of the Loans                    with  respect  to  such  Facility  of  the  assigning  Lender  subject  to  each  such                    assignment,  determined  as  of  the  date  the  Assignment  and  Assumption  with                    respect to such assignment is delivered to the Administrative Agent or, if “Trade                    Date” is specified in the Assignment and Assumption, as of the Trade Date, shall                    not be less than $1,000,000 unless each of the Administrative Agent and, so long                    as no Event of Default has occurred and is continuing, the Borrower otherwise                    consents (each such consent not to be unreasonably withheld or delayed);                     (ii)  Proportionate  Amounts.   Each  partial  assignment  shall  be  made  as  an             assignment of a proportionate part of all of the assigning Lender’s rights and obligations              under this Agreement with respect to the Loans or the Commitment assigned.                     (iii) Required  Consents.   No  consent  shall  be  required  for  any  assignment             except  to  the  extent  required  by  subsection  (b)(i)(B)  of  this  Section  11.06  and,  in              addition:                           (A)   the  consent  of  the  Borrower  (such  consent  not  to  be                   unreasonably  withheld  or  delayed)  shall  be  required  unless  (1)  an  Event  of                    Default has occurred and is continuing at the time of such assignment or (2) such                    assignment  is  to  a  Lender,  an  Affiliate  of  a  Lender  or  an  Approved  Fund;                    provided,  that,  the  Borrower  shall  be  deemed  to  have  consented  to  any  such                    assignment unless it shall object thereto by written notice to the Administrative                    Agent within five (5) Business Days after having received notice thereof;                           (B)   the consent of the Administrative Agent (such consent not to be                   unreasonably withheld or delayed) shall be required for assignments in respect of                    (i) any  unfunded  Commitment  if  such  assignment  is  to  a  Person  that  is  not  a                   Lender with a Commitment in respect of the applicable Facility, an Affiliate of                   such Lender or an Approved Fund with respect to such Lender or (ii) any Loan to                   a Person that is not a Lender, an Affiliate of a Lender or an Approved Fund;                                        129  CHAR1\1707916v5 





 






                     (iv)  Assignment  and  Assumption.   The  parties  to  each  assignment  shall              execute and deliver to the Administrative Agent an Assignment and Assumption.  The              assignee, if it is not a Lender, shall deliver to the Administrative Agent such information,              including notice information, as the Administrative Agent shall reasonably require.                     (v)   No Assignment to Certain Persons.  No such assignment shall be made              (A)  to  the  Borrower  or  any  of  the  Borrower’s  Affiliates  or  Subsidiaries,  (B)  to  any              Defaulting Lender or any of its Subsidiaries or any Person who, upon becoming a Lender              hereunder, would constitute any of the foregoing Persons described in this clause (B) or              (C) to a natural Person.                     (vi)  Certain  Additional  Payments.   In  connection  with  any  assignment  of              rights and obligations of any Defaulting Lender hereunder, no such assignment shall be              effective unless and until, in addition to the other conditions thereto set forth herein, the              parties  to  the  assignment  shall  make  such  additional  payments  to  the  Administrative              Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which              may  be  outright  payment,  purchases  by  the  assignee  of  participations  or              subparticipations, or other compensating actions, including funding, with the consent of              the  Borrower  and  the  Administrative  Agent,  the  applicable pro  rata  share  of  Loans              previously  requested  but  not  funded  by  the  Defaulting  Lender,  to  each  of  which  the              applicable assignee  and  assignor  hereby irrevocably consent), to  (x)  pay  and  satisfy in              full  all  payment  liabilities then  owed  by  such  Defaulting  Lender  to  the  Administrative              Agent or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund              as  appropriate)  its  full pro  rata  share  of  all  Loans  in  accordance  with  its  Applicable              Percentage.  Notwithstanding  the  foregoing, in  the  event  that  any  assignment of  rights              and  obligations  of  any  Defaulting  Lender  hereunder  shall  become  effective  under              applicable  Law  without  compliance  with  the  provisions  of  this  paragraph,  then  the              assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of              this Agreement until such compliance occurs.                     (vii) Spanish Public Documents.  At the request of the Administrative Agent              or  the  assignee,  the  parties  to  an  assignment  shall  promptly  raise  the  duly  completed              Assignment  and  Assumption  to  the  status  of  Spanish  Public  Document  in  the  form  of              “escritura pública”. For this purpose, the assignee will appoint the Administrative Agent              as  its  Administrative  Agent  and  representative  in  connection  with  the  ratification  and              raising  such  Assignment  and  Assumption  to  the  status  of  a  Spanish  Public  Document.               For the avoidance of doubt, any costs arising from the notarization of the Assignment and              Assumption shall be paid, as applicable, by the assigning Lender and the assignee.                     (viii) French Law Provisions.  To the extent that an assignment of rights and              obligations by a Lender referred to in this clause (b) could be construed as a novation              within the meaning of articles 1329 et seq. of the French Code civil, each party hereto              agrees that for the purposes of articles 1334 et seq. of the French Code civil and upon              such  an  assignment,  the  Liens  created  under  the  French  Security  Documents  shall  be              preserved and maintained for the benefit of the Secured Parties.  An assignee may, in the              case  of  an  assignment  of  rights  by  an  existing  Lender  hereunder,  if  it  considers  it              necessary to make the assignment effective as against a French Loan Party, arrange for              such  assignment  to  be  notified  to  or  acknowledged  by  such  French  Loan  Party  in              accordance with article 1324 of the French Code civil.                                         130  CHAR1\1707916v5 





 






         Subject to acceptance and recording thereof by the Administrative Agent pursuant to subsection        (c)  of  this  Section  11.06,  from  and  after  the  effective  date  specified  in  each  Assignment  and        Assumption, the assignee thereunder shall be a party to this Agreement and, to the extent of the        interest  assigned  by  such  Assignment  and  Assumption,  have  the  rights  and  obligations  of  a        Lender  under  this  Agreement,  and  the  assigning  Lender  thereunder  shall,  to  the  extent  of  the        interest assigned by such Assignment and Assumption, be released from its obligations under this        Agreement  (and,  in  the  case  of  an  Assignment  and  Assumption  covering  all  of  the  assigning        Lender’s  rights  and  obligations  under  this  Agreement,  such  Lender  shall  cease  to  be  a  party        hereto) but shall continue to be entitled to the benefits of Sections 3.01, 3.02, 3.04 and 11.04 with        respect to facts and circumstances occurring prior to the effective date of such assignment.  Upon        request, the Borrower (at its expense) shall execute and deliver a Note to the assignee Lender.         Any assignment or transfer by a Lender of rights or obligations under this Agreement that does        not comply with this subsection shall be treated for purposes of this Agreement as a sale by such        Lender of a participation in such rights and obligations in accordance with subsection (d) of this        Section 11.06.               (c)   Register.  The Administrative Agent, acting solely for this purpose as an agent of        the  Borrower  (and  such  agency  being  solely  for  tax  purposes),  shall  maintain  at  the        Administrative Agent’s Office a copy of each Assignment and Assumption delivered to it (or the        equivalent  thereof  in  electronic  form)  and  a  register  for  the  recordation  of  the  names  and        addresses of the Lenders, and the Commitments of, and principal amounts (and stated interest) of        the Loans owing to, each Lender pursuant to the terms hereof from time to time (the “Register”).         The  entries  in  the  Register  shall  be  conclusive  absent  manifest  error,  and  the  Borrower,  the        Administrative  Agent  and  the  Lenders  shall  treat  each  Person  whose  name  is  recorded  in  the        Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement.         In  addition, the  Administrative  Agent  shall maintain  on the Register information  regarding the        designation, and revocation of designation, of any Lender as a Defaulting Lender.  The Register        shall  be  available  for  inspection  by  the  Borrower  and  any  Lender,  at  any  reasonable  time  and        from time to time upon reasonable prior notice.               (d)   Participations.  Any Lender may at any time, without the consent of, or notice to,        the Borrower or the Administrative Agent, sell participations to any Person (other than a natural        Person, a Defaulting Lender or the Borrower or any of the Borrower’s Affiliates or Subsidiaries)        (each, a “Participant”) in all  or  a portion  of  such  Lender’s rights and/or obligations  under this        Agreement (including all or a portion of its Commitment and/or the Loans owing to it); provided,        that, (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender        shall remain solely responsible to the other parties hereto for the performance of such obligations        and  (iii)  the  Borrower,  the  Administrative  Agent  and  the  other  Lenders  shall  continue  to  deal        solely  and  directly  with  such  Lender  in  connection  with  such  Lender’s  rights  and  obligations        under  this  Agreement.   For  the  avoidance  of  doubt,  each  Lender  shall  be  responsible  for  the        indemnity under Section 11.04(c) without regard to the existence of any participation.               Any agreement or instrument pursuant to which a Lender sells such a participation shall        provide that such Lender shall retain the sole right to enforce this Agreement and to approve any        amendment,  modification  or  waiver  of  any  provision  of  this  Agreement;  provided,  that,  such        agreement  or  instrument  may  provide  that  such  Lender  will  not,  without  the  consent  of  the        Participant,  agree  to  any  amendment,  waiver  or  other  modification  described  in  clauses  (i)        through  (vi)  of  Section  11.01(a)  that  affects  such  Participant.   The  Borrower  agrees  that  each        Participant  shall  be  entitled  to  the  benefits  of  Sections  3.01,  3.02  and  3.04  (subject  to  the        requirements and limitations therein (it being understood that the documentation required under        Section 3.01(c) shall be delivered to the participating Lender)) to the same extent as if it were a                                        131  CHAR1\1707916v5 





 






         Lender  and  had  acquired  its  interest  by  assignment  pursuant  to  subsection  (b)  of  this  Section        11.06; provided, that, such Participant (A) agrees to be subject to the provisions of Sections 3.03        and  11.13  as  if  it  were  an  assignee  under  paragraph  (b)  of  this  Section;  and  (B)  shall  not  be        entitled  to  receive  any  greater  payment  under  Section  3.01  or  3.02,  with  respect  to  any        participation,  than  its  participating  Lender  would  have  been  entitled  to  receive,  except  to  the        extent such entitlement to receive a greater payment results from a Change in Law that occurs        after the Participant acquired the applicable participation.  Each Lender that sells a participation        agrees,  at  the  Borrower's  request  and  expense,  to  use  reasonable  efforts  to  cooperate  with  the        Borrower to effectuate the provisions of Section 11.13 with respect to any Participant.  To the        fullest extent permitted by law, each Participant also shall be entitled to the benefits of Section        11.08 as though it were a Lender; provided, that, such Participant agrees to be subject to Section        2.11 as though it were a Lender.               (e)   Certain Pledges.  Any Lender may at any time pledge or assign a security interest        in all or any portion of its rights under this Agreement (including under its Note, if any) to secure        obligations of such Lender, including any pledge or assignment to secure obligations to a Federal        Reserve Bank; provided, 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.         11.07 Treatment of Certain Information; Confidentiality.         Each of the Administrative Agent and the Lenders agrees to maintain the confidentiality of the  Information (as defined below), except that Information may be disclosed (a) to its Affiliates and to its  Related Parties (it being understood that the Persons to whom such disclosure is made will be informed of  the confidential nature of such Information and will be instructed to keep such Information confidential),  (b) to the extent required or requested by any regulatory authority purporting to have jurisdiction over  such  Person  or  its  Related  Parties  (including  any  self-regulatory  authority,  such  as  the  National  Association of Insurance Commissioners), (c) to the extent required by applicable laws or regulations or  by  any  subpoena  or  similar  legal  process,  (d)  to  any  other  party  hereto,  (e)  as  may  be  reasonably  necessary  in  connection  with  the  exercise  of  any  remedies  hereunder  or  under  any  other  Investment  Document or any action or proceeding relating to this Agreement or any other Investment Document or  the  enforcement  of  rights  hereunder  or  thereunder,  (f) subject  to  an  agreement  containing  provisions  substantially  the  same  as  those  of  this  Section  11.07,  to  (i)  any  assignee  of  or  Participant  in,  or  any  prospective assignee of or Participant in, any of its rights and obligations under this Agreement or (ii) any  actual  or  prospective  party  (or  its  Related  Parties)  to  any  swap,  derivative  or  other  transaction  under  which  payments  are  to  be  made  by  reference  to  a  Loan  Party  and  its  obligations,  this  Agreement  or  payments  hereunder, (g)  on  a confidential  basis to (i) any  rating  agency in  connection  with rating  any  Loan Party or its Subsidiaries or the credit facilities provided hereunder or (ii) the CUSIP Service Bureau  or any similar agency in connection with the issuance and monitoring of CUSIP numbers or other market  identifiers with respect to the credit facilities provided hereunder, (h) with the consent of the Borrower, (i)  to the members of its investment committee and its limited partners (it being understood that the Persons  to  whom  such  disclosure is made  will  be  informed  of  the  confidential  nature  of  such  Information  and  instructed  to  keep  such  Information  confidential)  or  (j)  to  the  extent  such  Information  (x)  becomes  publicly available other than as a result of a breach of this Section 11.07 or (y) becomes available to the  Administrative Agent, any Lender or any of their respective Affiliates on a nonconfidential basis from a  source other than the Borrower.         For purposes of this Section 11.07, “Information” means all information received from a Loan  Party  or  any  Subsidiary  relating  to  the  Loan  Parties  or  any  Subsidiary  or  any  of  their  respective  businesses, other than any such information that is available to the Administrative Agent or any Lender                                        132  CHAR1\1707916v5 





 






   on a nonconfidential basis prior to disclosure by such Loan Party or any Subsidiary; provided, that, in the  case of information received from a Loan Party or any Subsidiary after the date hereof, such information  is  clearly  identified  at  the  time  of  delivery  as  confidential.   Any  Person  required  to  maintain  the  confidentiality of Information as provided in this Section 11.07 shall be considered to have complied with  its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality  of such Information as such Person would accord to its own confidential information.         11.08 Set-off.         If  an  Event  of  Default  shall  have  occurred  and  be  continuing,  each  Lender  and  each  of  their  respective  Affiliates  is  hereby  authorized  at  any  time  and  from  time  to  time,  after  obtaining  the  prior  written consent of the Administrative Agent, to the fullest extent permitted by applicable law, to set off  and  apply  any  and  all  deposits  (general  or  special,  time  or  demand,  provisional  or  final,  in  whatever  currency) at any time held and other obligations (in whatever currency) at any time owing by such Lender  or any such Affiliate to or for the credit or the account of the Borrower or any other Loan Party against  any and all of the obligations of the Borrower or such Loan Party now or hereafter existing under this  Agreement or any other Loan Document to such Lender or its Affiliates, irrespective of whether or not  such Lender or Affiliate shall have made any demand under this Agreement or any other Loan Document  and although such obligations of the Borrower or such Loan Party may be contingent or unmatured or are  owed to a branch office or Affiliate of such Lender different from the branch office or Affiliate holding  such deposit or obligated on such indebtedness; provided, that, in the event that any Defaulting Lender  shall exercise any such right of setoff, (x) all amounts so set off shall be paid over immediately to the  Administrative  Agent  for  further  application  in  accordance  with  the  provisions  of  Section  2.12  and,  pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed  held in trust for the benefit of the Administrative Agent and the Lenders and (y) the Defaulting Lender  shall  provide  promptly  to  the  Administrative  Agent  a  statement  describing  in  reasonable  detail  the  Obligations owing to such Defaulting Lender as to which it exercised such right of setoff.  The rights of  each Lender and their respective Affiliates under this Section 11.08 are in addition to other rights and  remedies (including other rights of setoff) that such Lender or their respective Affiliates may have.  Each  Lender agrees to notify the Borrower and the Administrative Agent promptly after any such setoff and  application; provided, that, the failure to give such notice shall not affect the validity of such setoff and  application.         11.09 Interest Rate Limitation.         Notwithstanding  anything  to  the  contrary  contained  in  any  Investment  Document,  the  interest  (actual  or  deemed)  paid  or  agreed  to  be  paid  under  the  Investment  Documents  shall  not  exceed  the  maximum  rate  of  non-usurious  interest  permitted  by  applicable  Law  (the  “Maximum  Rate”).   If  the  Administrative Agent or any Lender shall receive interest (including, without limitation, all charges, fees,  exactions or other sums which may at any time be deemed to be interest) in an amount that exceeds the  Maximum Rate, the excess interest shall be applied to the principal of the Loans or, if it exceeds such  unpaid principal, refunded to the Borrower.  In determining whether the interest contracted for, charged,  or received by the Administrative Agent or a Lender exceeds the Maximum Rate, such Person may, to the  extent permitted by applicable Law, (a) characterize any payment that is not principal as an expense, fee,  or  premium  rather  than  interest,  (b)  exclude  voluntary  prepayments  and  the  effects  thereof  and  (c)  amortize, prorate, allocate, and spread in equal or unequal parts the total amount of interest throughout the  contemplated term of the Obligations hereunder.                                         133  CHAR1\1707916v5 





 






         11.10 Counterparts; Integration; Effectiveness.         This  Agreement  may  be  executed  in  counterparts  (and  by  different  parties  hereto  in  different  counterparts),  each  of  which  shall  constitute  an  original,  but  all  of  which  when  taken  together  shall  constitute a single contract.  This Agreement, the other Investment Documents, and any separate letter  agreements with respect to fees payable to the Administrative Agent, constitute the entire contract among  the  parties  relating  to  the  subject  matter  hereof  and  supersede  any  and  all  previous  agreements  and  understandings, oral or written, relating to the subject matter hereof.  Except as provided in Section 5.01,  this Agreement shall become effective when it shall have been executed by the Administrative Agent and  when the Administrative Agent shall have received counterparts hereof that, when taken together, bear the  signatures of each of the other parties hereto.  Delivery of an executed counterpart of a signature page of  this Agreement by facsimile or other electronic imaging means (e.g. “pdf” or “tif”) shall be effective as  delivery of a manually executed counterpart of this Agreement.         11.11 Survival of Representations and Warranties.         All  representations  and  warranties  made  hereunder  and  in  any  other  Investment  Document  or  other document delivered pursuant hereto or thereto or in connection herewith or therewith shall survive  the execution and delivery hereof and thereof and shall continue in full force and effect as long as any  Loan  or  other  Obligation  hereunder  shall  remain  unpaid  or  unsatisfied.   Such  representations  and  warranties have been or will be relied upon by the Administrative Agent and each Lender, regardless of  any investigation made by the Administrative Agent or any Lender or on their behalf and notwithstanding  that the Administrative Agent or any Lender may have had notice or knowledge of any Default at the time  of any Borrowing, and shall continue in full force and effect as long as any Loan or any other Obligation  hereunder shall remain unpaid or unsatisfied.         11.12 Severability.         If  any  provision  of  this  Agreement  or  the  other  Investment  Documents  is  held  to  be  illegal,  invalid or unenforceable, (a) the legality, validity and enforceability of the remaining provisions of this  Agreement  and  the  other  Investment  Documents  shall  not  be  affected  or  impaired  thereby  and  (b)  the  parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable provisions  with valid provisions the economic effect of which comes as close as possible to that of the illegal, invalid  or unenforceable provisions.  The invalidity of a provision in a particular jurisdiction shall not invalidate  or  render  unenforceable  such  provision  in  any  other  jurisdiction.   Without  limiting  the  foregoing  provisions  of  this  Section  11.12,  if  and  to  the  extent  that  the  enforceability  of  any  provisions  in  this  Agreement relating to Defaulting Lenders shall be limited by Debtor Relief Laws, as determined in good  faith by the Administrative Agent, then such provisions shall be deemed to be in effect only to the extent  not so limited.         11.13 Replacement of Lenders.         If the Borrower is entitled to replace a Lender pursuant to the provisions of Section 3.03, or if any  Lender is a Defaulting Lender or a Non-Consenting Lender, then the Borrower may, at its sole expense  and effort, upon notice to such Lender and the Administrative Agent, require such Lender to assign and  delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents  required by, Section 11.06), all of its interests, rights (other than its existing rights to payments pursuant  to Sections 3.01 and 3.02) and obligations under this Agreement and the related Loan Documents to an  Eligible Assignee that shall assume such obligations (which assignee may be another Lender, if a Lender  accepts such assignment), provided, that:                                         134  CHAR1\1707916v5 





 






               (a)   such  Lender  shall  have  received  payment  of  an  amount  equal  to  one  hundred        percent (100%) of (x) the outstanding principal of its Loans, accrued interest thereon and all other        amounts  payable  to it hereunder  and  under  the other  Loan Documents (other  than  prepayment        premium) from the assignee (to the extent of such outstanding principal and accrued interest) or        the  Borrower  (in  the  case  of  all  other  amounts)  and  (y)  the  prepayment  premium  required  by        Section  2.03(d)  from  the  Borrower,  as  if  such  assignment  was  a  prepayment  of  one  hundred        percent (100%) of the outstanding principal amount of such assignor’s Loans on the effective date        of such assignment;               (b)   in the case of any such assignment resulting from a claim for compensation under        Section  3.02  or  payments  required  to  be  made  pursuant  to  Section  3.01,  such  assignment  will        result in a reduction in such compensation or payments thereafter;               (c)   such assignment does not conflict with applicable Laws; and               (d)   in  the  case  of  any  such  assignment  resulting  from  a  Non-Consenting  Lender’s        failure  to  consent  to  a  proposed  change,  waiver,  discharge  or  termination  with  respect  to  any        Loan  Document, the  applicable replacement bank, financial  institution  or  Fund  consents to  the        proposed  change,  waiver,  discharge  or  termination;  provided,  that,  the  failure  by  such  Non-       Consenting Lender to execute and deliver an Assignment and Assumption shall not impair the        validity of the removal of such Non-Consenting Lender and the mandatory assignment of such        Non-Consenting  Lender’s  Commitments  and  outstanding  Loans  pursuant to  this  Section  11.13        shall  nevertheless  be  effective  without  the  execution  by  such  Non-Consenting  Lender  of  an        Assignment and Assumption.         A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a  result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to require such  assignment and delegation cease to apply.         11.14 Governing Law; Jurisdiction; Etc.               (a)   GOVERNING LAW.  THIS AGREEMENT AND THE OTHER INVESTMENT        DOCUMENTS  (EXCEPT,  AS  TO  ANY  OTHER  INVESTMENT  DOCUMENT,  AS        EXPRESSLY SET FORTH THEREIN) AND ANY CLAIMS, CONTROVERSY, DISPUTE OR        CAUSE  OF  ACTION  (WHETHER  IN  CONTRACT  OR  TORT  OR  OTHERWISE)  BASED        UPON,  ARISING  OUT  OF  OR  RELATING  TO  THIS  AGREEMENT  OR  ANY  OTHER        INVESTMENT DOCUMENT (EXCEPT, AS TO ANY OTHER INVESTMENT DOCUMENT,        AS EXPRESSLY SET FORTH THEREIN) AND THE TRANSACTIONS CONTEMPLATED        HEREBY  AND  THEREBY  SHALL  BE  GOVERNED  BY,  AND  CONSTRUED  IN        ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.               (b)   SUBMISSION TO JURISDICTION.  THE BORROWER AND EACH OTHER        LOAN  PARTY  IRREVOCABLY  AND  UNCONDITIONALLY  AGREES  THAT  IT  WILL        NOT  COMMENCE  ANY  ACTION,  LITIGATION  OR  PROCEEDING  OF  ANY  KIND  OR        DESCRIPTION,  WHETHER  IN  LAW  OR  EQUITY,  WHETHER  IN  CONTRACT  OR  IN        TORT OR OTHERWISE, AGAINST THE ADMINISTRATIVE AGENT, ANY LENDER OR        ANY  RELATED  PARTY  OF  THE  FOREGOING  IN  ANY  WAY  RELATING  TO  THIS        AGREEMENT  OR  ANY  OTHER  INVESTMENT  DOCUMENT  OR  THE  TRANSACTIONS        RELATING  HERETO  OR  THERETO,  IN  ANY  OTHER  FORUM  OTHER  THAN  THE        COURTS  OF  THE  STATE  OF  NEW  YORK  AND  ANY  UNITED  STATES  DISTRICT        COURT  IN  THE  STATE  OF  NEW  YORK,  IN  EACH  CASE  LOCATED  IN  NEW  YORK                                        135  CHAR1\1707916v5 





 






         COUNTY,  NEW  YORK,  AND  ANY  APPELLATE  COURT  FROM  ANY  THEREOF,  AND        EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY SUBMITS        TO  THE  JURISDICTION  OF  SUCH  COURTS  AND  AGREES  THAT  ALL  CLAIMS  IN        RESPECT  OF  ANY  SUCH  ACTION,  LITIGATION  OR  PROCEEDING  MAY  BE  HEARD        AND  DETERMINED  IN  SUCH  NEW  YORK  STATE  COURT  OR,  TO  THE  FULLEST        EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT.  EACH OF        THE PARTIES HERETO  AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION        OR  PROCEEDING  SHALL  BE  CONCLUSIVE  AND  MAY  BE  ENFORCED  IN  OTHER        JURISDICTIONS  BY  SUIT  ON  THE  JUDGMENT  OR  IN  ANY  OTHER  MANNER        PROVIDED  BY  LAW.   NOTHING  IN  THIS  AGREEMENT  OR  IN  ANY  OTHER        INVESTMENT    DOCUMENT     SHALL    AFFECT   ANY    RIGHT   THAT    THE        ADMINISTRATIVE  AGENT  OR  ANY  LENDER  MAY  OTHERWISE  HAVE  TO  BRING        ANY  ACTION  OR  PROCEEDING  RELATING  TO  THIS  AGREEMENT  OR  ANY  OTHER        INVESTMENT DOCUMENT AGAINST THE BORROWER OR ANY OTHER LOAN PARTY        OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.  NOTWITHSTANDING        THE FOREGOING, THE PRECEDING SENTENCE SHALL NOT APPLY IN RELATION TO        ANY  PROCEEDINGS  RELATING  TO  THIS  AGREEMENT  COMMENCED  BY  THE        ADMINISTRATIVE AGENT OR ANY LENDER AGAINST ANY FRENCH LOAN PARTY        (INCLUDING WHERE A FRENCH LOAN PARTY IS A JOINT DEFENDANT WITH ANY        OTHER LOAN PARTY) AND ANY SUCH PROCEEDINGS SHALL BE COMMENCED IN        THE COURTS OF THE STATE OF NEW YORK AND ANY UNITED STATES DISTRICT        COURT  IN  THE  STATE  OF  NEW  YORK,  IN  EACH  CASE  LOCATED  IN  NEW  YORK        COUNTY,  NEW  YORK,  AND  ANY  APPELLATE  COURT  FROM  ANY  THEREOF        PURSUANT TO THIS PARAGRAPH.               (c)   WAIVER  OF  VENUE.   THE  BORROWER  AND  EACH  OTHER  LOAN        PARTY  IRREVOCABLY  AND  UNCONDITIONALLY  WAIVES,  TO  THE  FULLEST        EXTENT  PERMITTED  BY  APPLICABLE  LAW,  ANY  OBJECTION  THAT IT  MAY  NOW        OR  HEREAFTER  HAVE  TO  THE  LAYING  OF  VENUE  OF  ANY  ACTION  OR        PROCEEDING  ARISING  OUT  OF  OR  RELATING  TO  THIS  AGREEMENT  OR  ANY        OTHER  INVESTMENT  DOCUMENT  IN  ANY  COURT  REFERRED  TO  IN  SUBSECTION        (B)  OF  THIS  SECTION  11.14.   EACH  OF  THE  PARTIES  HERETO  HEREBY        IRREVOCABLY  WAIVES,  TO  THE  FULLEST  EXTENT  PERMITTED  BY  APPLICABLE        LAW,  THE  DEFENSE  OF  AN  INCONVENIENT  FORUM  TO  THE  MAINTENANCE  OF        SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.               (d)   SERVICE  OF  PROCESS.   EACH  PARTY  HERETO  IRREVOCABLY        CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN        SECTION 11.02.  NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY        PARTY  HERETO  TO  SERVE  PROCESS  IN  ANY  OTHER  MANNER  PERMITTED  BY        APPLICABLE LAW.               (e)   EXECUTIVE PROCEEDINGS SPAIN.                       (i)   Upon enforcement, the sum payable by a Spanish Guarantor shall be the              aggregate amount of the balance of the accounts maintained by the Administrative Agent              (or the relevant Lender, as the case may be) pursuant to Section 2.09. For the purposes of              Articles  571  et  seq.  of  the  Spanish  Civil  Procedural  Law,  the  Parties  agree  that  such              balances shall be considered as due, liquid and payable and may be claimed pursuant to              that law.                                                            136  CHAR1\1707916v5 





 






                     (ii)  For the purposes of the provisions of Art. 571 et seq. of the Spanish Civil              Procedural Law, the parties hereto agree that the amount of debt to be claimed through              executive proceedings shall be determined by the Administrative Agent (or a Lender, as              the case may be) in a certificate evidencing the balances shown in the relevant account(s)              referred  to  in  the  foregoing  clause  (e)(i).  For the  Administrative  Agent  or  a  Lender  to              exercise executive action it must present:                                              (A)  an original notarial first or authentic copy of this Agreement;                                                    (B)  the  notarial  document  (“acta  notarial”)  which  (1)  incorporates                    (I)  the  certificate  of  amounts  due  by  the  Spanish  Guarantor  issued  by  the                    Administrative  Agent (or the  relevant  Lender,  as  the  case  may  be)  and  (II)  an                    excerpt of the credits and debits, including the interest applied, which appears in                    the  relevant  account(s)  referred  to  in  clause  (e)(i),  and  (2)  evidences  that  the                    amounts  due  and  payable  by  the  Spanish  Guarantor  have  been  calculated  in                    accordance with this Agreement and that such amounts match the balance of the                    accounts; and                            (C)  a  notarial  document  (“acta  notarial”)  or  a  confirmatory  fax                    (“burofax”) evidencing that the Spanish Guarantor has been served notice for the                    amount that is due and payable.                                              (iii)  Clause (e)(ii) of this Section 11.14 is also applicable to any Lender with              regard  to  its  Commitment.  Such  Lender  may  issue  the  appropriate  certification  of  the              balances of the relevant account(s) referred to in clause (e)(i) of and the certification of              the balances of such accounts may be legalised by a notary.                                        (iv)  The amount of the balances determined in accordance with this clause (e)              shall be notified to the relevant Spanish Guarantor in an attestable manner at least three              (3) days in advance of exercising any executive action.                                        (v)   The Spanish Guarantor hereby authorises the Administrative Agent (and              each Lender, as appropriate) to request and obtain certificates and documents issued by              the notary which has formalised this Agreement in order to evidence its compliance with              the entries of his registry-book and the relevant entry date for the purpose of number 4 of              Article  517,  of  the  Spanish  Civil  Procedural  Law.  The  cost  of  such  certificate  and              documents will be for the account of the Spanish Guarantor.                                        (vi)  This Agreement shall be raised to public by means of a Spanish Public              Document by the Spanish Guarantor for the purposes contemplated in Article 517 et seq.              of the Spanish Civil Procedural Law.          11.15 Waiver of Right to Trial by Jury.         EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT  PERMITTED  BY  APPLICABLE  LAW,  ANY  RIGHT  IT  MAY  HAVE  TO  A  TRIAL  BY  JURY  IN  ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO  THIS  AGREEMENT  OR  ANY  OTHER  INVESTMENT  DOCUMENT  OR  THE  TRANSACTIONS  CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY  OTHER  THEORY).   EACH  PARTY  HERETO  (A)  CERTIFIES  THAT  NO  REPRESENTATIVE,  AGENT  OR  ATTORNEY  OF  ANY  OTHER  PERSON  HAS  REPRESENTED,  EXPRESSLY  OR                                        137  CHAR1\1707916v5 





 






   OTHERWISE,  THAT  SUCH  OTHER  PERSON  WOULD  NOT,  IN  THE  EVENT  OF  LITIGATION,  SEEK  TO  ENFORCE  THE  FOREGOING  WAIVER  AND  (B)  ACKNOWLEDGES  THAT  IT  AND  THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT  AND THE OTHER INVESTMENT DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL  WAIVERS AND CERTIFICATIONS IN THIS SECTION 11.15.         11.16 Electronic Execution of Assignments and Certain Other Documents.         The  words  “execute,”  “execution,”  “signed,”  “signature”  and  words  of  like  import  in  any  Assignment and Assumption or in any amendment or other modification hereof (including waivers and  consents) shall be deemed to include electronic signatures, the electronic matching of assignment terms  and contract formations on electronic platforms approved by the Administrative Agent, or the keeping of  records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a  manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the  extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global  and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other  similar state laws based on the Uniform Electronic Transactions Act.         11.17 USA PATRIOT Act.         Each Lender that is subject to the Act (as hereinafter defined) and the Administrative Agent (for  itself and not on behalf of any Lender) hereby notifies the Loan Parties that pursuant to the requirements  of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Act”), it  is required to obtain,  verify  and  record information that identifies  the  Loan  Parties, which  information  includes the name and address of the Loan Parties, information concerning its direct and indirect holders  of Equity Interests and other Persons exercising Control over it, and its and their respective directors and  officers, and other information that will allow such Lender or the Administrative Agent, as applicable, to  identify  the  Loan  Parties  in  accordance  with  the  Act.   The  Loan  Parties  shall,  promptly  following  a  request by the Administrative Agent or any Lender, provide all documentation and other information that  the  Administrative  Agent  or  such  Lender  reasonably  requests  in  order  to  comply  with  its  ongoing  obligations  under  applicable  “know  your  customer”  and  anti-money  laundering  laws,  rules  and  regulations, including the Act.         11.18 No Advisory or Fiduciary Relationship.         In connection with all aspects of each transaction contemplated hereby (including in connection  with any amendment, waiver or other modification hereof or of any other Investment Document), each  Loan  Party  acknowledges  and  agrees,  and  acknowledges  its  Affiliates’  understanding,  that:  (a)(i)  the  arranging  and  other  services  regarding  this  Agreement  provided  by  the  Administrative  Agent  and  the  Lenders are arm’s-length commercial transactions between the Loan Parties and their Affiliates, on the  one hand, and the Administrative Agent, the Lenders and their respective Affiliates on the other hand, (ii)  the Loan Parties have consulted their own legal, accounting, regulatory and tax advisors to the extent they  have deemed appropriate and (iii) each Loan Party is capable of evaluating, and understands and accepts,  the  terms,  risks  and  conditions  of  the  transactions  contemplated  hereby  and  by  the  other  Investment  Documents; (b)(i) the Administrative Agent, each Lender and each of their respective Affiliates is and has  been acting solely as a principal and, except as expressly agreed in writing by the relevant parties, has not  been, is not and will not be acting as an advisor, agent or fiduciary for any Loan Party or any Loan Party’s  Affiliates  or  any  other  Person  and  (ii)  neither  the  Administrative  Agent,  any  Lender  nor  any  of  their  respective Affiliates has any obligation to the Loan Parties or any of their Affiliates with respect to the  transactions  contemplated  hereby  except  those  obligations  expressly  set  forth  herein  and  in  the  other  Investment Documents; and (c) the Administrative Agent, the Lenders and their respective Affiliates may                                        138  CHAR1\1707916v5 





 






   be engaged in a broad range of transactions that involve interests that differ from those of the Loan Parties  and  their  Affiliates,  and  neither  the  Administrative  Agent  nor  any  Lender  nor  any  of  their  respective  Affiliates has any obligation to disclose any of such interests to the Loan Parties or their Affiliates.  To  the fullest extent permitted by law, the Loan Parties hereby waive and release any claims that they may  have against the Administrative Agent, any Lender or any of their respective Affiliates with respect to any  breach  or  alleged breach of  agency or fiduciary  duty  in connection  with any aspect  of any transaction  contemplated hereby.         11.19 Acknowledgement and Consent to Bail-In of EEA Financial Institutions.         Solely to the extent any Lender that is an EEA Financial Institution is a party to this Agreement  and  notwithstanding  anything  to  the  contrary  in  any  Investment  Document  or in  any  other agreement,  arrangement or understanding among any such parties, each party hereto acknowledges that any liability  of any Lender that is an EEA Financial Institution arising under any Investment Document, to the extent  such  liability  is  unsecured,  may  be  subject  to  the  write-down  and  conversion  powers  of  an  EEA  Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:               (a)   the  application  of  any  Write-Down  and  Conversion  Powers  by  an  EEA        Resolution Authority to any such liabilities arising hereunder which may be payable to it by any        Lender that is an EEA Financial Institution; and               (b)   the effects of any Bail-In Action on any such liability, including, if applicable:                     (i)   a reduction in full or in part or cancellation of any such liability;                     (ii)  a  conversion  of  all,  or  a  portion  of,  such  liability  into  shares  or  other              instruments of ownership in such EEA Financial Institution, its parent undertaking, or a              bridge  institution  that  may  be  issued  to  it  or  otherwise  conferred  on  it,  and  that  such              shares or other instruments of ownership will be accepted by it in lieu of any rights with              respect to any such liability under this Agreement or any other Investment Document; or                     (iii) the variation of the terms of such liability in connection with the exercise              of the write-down and conversion powers of any EEA Resolution Authority.         11.20 Funding Date.         The parties hereto agree that if the Funding Date does not occur on or before August 24, 2017,  this Agreement and all other Loan Documents shall be automatically terminated.         11.21 Parallel Debt.         Each Loan Party hereby irrevocably and unconditionally undertakes to pay to the Administrative  Agent (acting in its capacity as the “collateral agent”) amounts equal to any amounts owing from time to  time by such Loan Party to any Secured Party under any Loan Document as and when such amounts are  due.         Each Loan Party and the Administrative Agent (acting in its capacity as the “collateral agent”)  acknowledge that the obligations of each Loan Party under the preceding paragraph are several and are  separate and independent from, and shall not in any way limit or affect, the corresponding obligations of  such Loan Party to any Secured Party under any Loan Document (the “Corresponding Debt”), nor shall                                         139  CHAR1\1707916v5 





 






   the amounts for which each Loan Party is liable under the preceding paragraph (the “Parallel Debt”) be  limited or affected in any way by such Loan Party’s Corresponding Debt; provided, that:               (a)   the Parallel Debt of each Loan Party shall be decreased to the extent that such        Loan  Party’s  Corresponding  Debt  has  been  irrevocably  paid  or  (in  the  case  of  guarantee        obligations) discharged;                (b)   the Corresponding Debt of each Loan Party shall be decreased to the extent that        such  Loan  Party’s  Parallel  Debt  has  been  irrevocably  paid  or  (in  the  case  of  guarantee        obligations) discharged; and                            (c)   the amount of the Parallel Debt of each Loan Party shall at all times be equal to        the amount of such Loan Party’s Corresponding Debt.         For  the  purpose  of  this  Section  11.21,  the  Administrative  Agent  (acting  in  its  capacity  as  the  “collateral agent”) acts in its own name and not as a trustee, and its claims in respect of the Parallel Debt  shall  not  be  held  on  trust.  The  Liens  granted  under  the  Loan  Documents  to  the  Administrative  Agent  (acting  in  its  capacity  as  the  “collateral  agent”)  to  secure  the  Parallel  Debt  are  granted  to  the  Administrative Agent in its capacity as creditor of the Parallel Debt and shall not be held on trust.         All  monies  received  or  recovered  by  the  Administrative  Agent  (acting  in  its  capacity  as  the  “collateral agent”) pursuant to this Section, and all amounts received or recovered by the Administrative  Agent acting in such capacity from or by the enforcement of any Lien granted to secure the Parallel Debt,  shall be applied in accordance with Section 9.03.         Without limiting or affecting the rights of the Administrative Agent (acting in its capacity as the  “collateral agent”) against the Loan Parties (whether under this Section or under any other provision of  the Loan Documents), each Loan Party acknowledges that:               (x)   nothing in this Section shall impose any obligation on the Administrative Agent        (acting  in  its  capacity  as  the  “collateral  agent”)  to  advance  any  sum  to  any  Loan  Party  or        otherwise under any Loan Document; and               (y)   for the purpose of any vote taken under any Loan Document, the Administrative        Agent  (acting  in  its  capacity  as  the  “collateral  agent”)  shall  not  be  regarded  as  having  any        participation or commitment other than those which it has in its capacity as a Lender.          For Spanish Law purposes, no obligation shall be deemed to be included nor shall it be secured  under  any  Collateral  Document  granted  pursuant  to  Spanish  Law  if  such  obligation  constitutes  or  is  included in the definition of Parallel Debt.                11.22 Enforcement Through Administrative Agent Only.         The Secured Parties shall not have any independent power to enforce, or have recourse to, any of  the Liens or to exercise any right, power, authority or discretion arising under the Loan Documents except  through the Administrative Agent.                                            140  CHAR1\1707916v5 





 






                                    SCHEDULE 2                                                            EXHIBIT E TO AMENDED CREDIT AGREEMENT                                                                            See Attached.                                                                                      CHAR1\1707888v7 





 






                                 SCHEDULE 2                                     EXHIBIT E                        FORM OF COMPLIANCE CERTIFICATE                                             Financial Statement Date:[    , 20__]   To:   Madryn Health Partners, LP, as Administrative Agent   Re:   Credit Agreement dated as of August 24, 2017 (as amended, modified, restated, supplemented or        extended from time to time, the “Credit Agreement”), among Establishment Labs Holdings Inc., a        BVI business company, limited by shares and incorporated under the laws of the British Virgin        Islands (the “Borrower”), the Guarantors from time to time party thereto, the Lenders from time        to  time  party  thereto  and  Madryn  Health  Partners,  LP,  as  Administrative  Agent.   Capitalized        terms used but not otherwise defined herein have the meanings provided in the Credit Agreement.   Date:[__________, 20__]   Ladies and Gentlemen:   The  undersigned  Responsible  Officer  hereby  certifies  as  of  the  date  hereof  that  [he/she]  is  the  [Chief  Executive Officer, Chief Financial Officer, Treasurer or Controller] of the Borrower, and that, in [his/her]  capacity  as  such,  [he/she]  is  authorized  to  execute  and  deliver  this  Compliance  Certificate  to  the  Administrative Agent on the behalf of the Borrower, and that:   [Use following paragraph 1 for financial statements delivered pursuant to Section 7.01(a) of the Credit  Agreement:]   [1.   [Attached hereto as Schedule 1 are the year-end audited financial statements of the Borrower and  its  Subsidiaries,  together  with  the  report  and  opinion  of  an  independent  certified  public  accountant  in  satisfaction of their requirements under Section 7.01(a) of the Credit Agreement for the fiscal year of the  Borrower ended as of the Financial Statement Date.]   [Use following paragraph 1 for financial statements delivered pursuant to Section 7.01(b) of the Credit  Agreement:]   [1.   [Attached  hereto  as  Schedule  1  are  the  unaudited  financial  statements  of  the  Borrower  and  its  Subsidiaries in satisfaction of their requirements under Section 7.01(b) of the Credit Agreement for the  fiscal quarter of the Borrower ended as of the Financial Statement Date. Such financial statements fairly  present in all material respects the financial condition, results of operations, shareholders’ equity and cash  flows of the Borrower and its Subsidiaries in accordance with GAAP as at such date and for such period,  subject only to normal year end audit adjustments and the absence of footnotes.]   2.    The undersigned has reviewed and is familiar with the terms of the Credit Agreement and has  made, or has caused to be made, a reasonably detailed review of the transactions and condition (financial  or otherwise) of the Loan Parties during the accounting period covered by such financial statements.   3.    A  review  of  the  activities  of  the  Loan  Parties  and  their  respective  Subsidiaries  during  the  accounting  period  covered  by  such  financial  statements  has  been  made  under  the  supervision  of  the  undersigned  with  a  view  to  determining  whether  during  such  fiscal  period  the  Loan  Parties  and  their    CHAR1\1741512v2 





 






respective  Subsidiaries  performed  and  observed  all  of  their  respective  obligations  under  the  Loan  Documents, and    [select one:]   [to  the  knowledge  of  the  undersigned  during  such  fiscal  period,  the  Loan  Parties  and  their  respective  Subsidiaries performed and observed each covenant and condition of the Loan Documents applicable to  them, and no Default has occurred and is continuing.]   [or:]   [the following covenants or conditions have not been performed or observed and the following is a list of  each such Default and its nature and status:]   4.    The financial covenant analyses and calculation of (i) Product Revenues for the four consecutive  fiscal quarter period most recently ended on or prior to the date of this Compliance Certificate and (ii)  Liquidity, in each case, set forth on Schedule 2 attached hereto are true and accurate on and as of the date  of this Compliance Certificate.   5.    Attached hereto as Schedule 3 is a supplement setting forth information regarding the amount and  timing  of  all  Dispositions,  Involuntary  Dispositions,  Debt  Issuances,  Extraordinary  Receipts  and  Acquisitions that occurred during the period covered by the attached financial statements.   6.    Attached  hereto  as  Schedule  4  is  a  list  of  (i)  all  applications  by  any  Loan  Party,  if  any,  for  Copyrights,  Patents  or  Trademarks  made  since  [the  Effective  Date]  [the  date  of  the  prior  Compliance  Certificate],  (ii)  all  issuances  of  registrations  or  letters  on  existing  applications  by  any  Loan  Party  for  Copyrights, Patents and Trademarks received since [the Effective Date] [the date of the prior Compliance  Certificate], (iii) licenses of any IP Rights (other than non-exclusive licenses permitted by Section 8.05 of  the Credit Agreement granted in the ordinary course of business) entered into by any Loan Party since  [the Effective Date] [the date of the prior Compliance Certificate] and (iv) such supplements to Schedules  6.17(a), 6.17(b), 6.17(d) and 6.17(e) of the Disclosure Letter as are necessary to cause such schedules to  be true and complete in all material respects as of the date of this Compliance Certificate.   7.    Attached  hereto  as  Schedule  5  is  the  insurance  binder  or  other  evidence  of  insurance  for  any  insurance coverage of any Loan Party or any Subsidiary that was renewed, replaced or modified during  the period covered by the attached financial statements.   8.    Attached hereto as Schedule 6 is a copy of management’s discussion and analysis with respect to  such financial statements.   9.    Attached  hereto  as  Schedule  7  is  a  list  of  all  litigations,  arbitrations  or  governmental  investigations  or  proceedings  which  were  instituted  during  the  period  covered  by  such  financial  statements or which, to the knowledge of any Loan Party, are threatened (in writing) against any Loan  Party  or  any  Subsidiary  which,  in  any  case,  could  reasonably  be  expected  to  result  in  losses  and/or  expenses (other than, for the avoidance of doubt, legal and court fees, costs and expenses) in excess of the  Threshold Amount, together with a description setting forth the details thereof and stating what action the  applicable Loan Party or Subsidiary has taken and proposes to take with respect thereto.   10.   Attached  hereto  as  Schedule  8  is  information  regarding,  in  each  case,  to  the  extent  occurring  during the period covered by such financial statements, (i) the termination of any Material Contract, (ii)  the receipt by any Loan Party or any of its Subsidiaries of any notice under any Material Contract (and a    CHAR1\1741512v2 





 






copy thereof) as to the occurrence of any material breach or default under or pursuant to such Material  Contract that could result in termination thereof or a material liability in respect thereof, (iii) the entering  into of any new Material Contract by a Loan Party or any of its Subsidiaries (and a copy thereof) or (iv)  any material amendment to a Material Contract (and a copy thereof).   11.   Attached hereto as Schedule 9 is a listing of all deposit accounts and other bank accounts and  securities accounts of the Loan Parties and their Subsidiaries (including, for the avoidance of doubt, the  Controlled Accounts) as of the Financial Statement Date (which listing shall include the location of each  such account and the balance of each such account as of the Financial Statement Date).   12.   Attached hereto as Schedule 10 is a listing of all Investments made by any Loan Party or any  Subsidiary  thereof  pursuant  to  Section  8.02(c)  of  the  Credit  Agreement  as  of  the  Financial  Statement  Date.                             [SIGNATURE PAGES FOLLOW]   CHAR1\1741512v2 





 






      IN WITNESS WHEREOF, the undersigned has executed this Compliance Certificate as of  __________, 20__.                                       ESTABLISHMENT LABS HOLDINGS INC.,                                      a  BVI  business  company,  limited  by  shares  and                                      incorporated under the laws of the British Virgin Islands                                       By:                                       Name:                                      Title:    CHAR1\1741512v2 





 






                                    Schedule 1            [Audited][Unaudited] Financial Statements of the Borrower and its Subsidiaries    CHAR1\1741512v2 





 






                                    Schedule 2      1. Product Revenues.      A. For  the  four  fiscal  quarter  period  most        recently  ended  as  of  the  date  of  this        Compliance  Certificate,  all  amounts  paid  to        and  received  by  the  Borrower  and  its        Subsidiaries in the ordinary course of business        that,  in  accordance  with  GAAP,  would  be        classified  as  net  revenue,  excluding  upfront        payments,  milestones,  royalties  and  other        similar  one-time  payments  received  by  the        Borrower  and  its  Subsidiaries  that  are  not        related to the sale of products or services1:          $      B. Minimum amount required by Section 8.16 of        the Credit Agreement for such period:                  $  Compliance:                                                                                [Yes] [No]      2. Liquidity.      A. Aggregate  Unrestricted  Cash  maintained  by        the  Loan  Parties  (without  duplication)  for        each day during the four fiscal quarter period        most  recently  ended  as  of  the  date  of  this        Compliance Certificate:                                $      B. Minimum amount required by Section 8.17(a)        of the Credit Agreement:                               $10,000,000  Compliance:                                                                                [Yes] [No]      C. Aggregate  Unrestricted  Cash  maintained  by        the  Loan  Parties  (without  duplication)  for        each day during the four fiscal quarter period        most  recently  ended  as  of  the  date  of  this        Compliance Certificate and which is held in a        Controlled Account:                                    $      D. Minimum amount required by Section 8.17(b)        of the Credit Agreement:                                                               $5,000,000        1  “Product  Revenues”  shall  exclude  the  revenues  generated  by  any  Subsidiary  to  the  extent  that  the  declaration  or  payment of dividends or similar distributions by that Subsidiary of the income resulting from such revenue is not at the time  permitted  by  operation  of  the  terms  of  its  Organization  Documents  or  any  agreement,  instrument,  judgment,  decree,  order,  statute, rule, or governmental regulation applicable to that Subsidiary.    CHAR1\1741512v2 





 






Compliance:                                                                                [Yes] [No]    CHAR1\1741512v2 





 






                                  Schedule 3      Dispositions, Involuntary Dispositions, Debt Issuances Extraordinary Receipts and Acquisitions    CHAR1\1741512v2 





 






                                  Schedule 4                                  IP Schedule Updates    CHAR1\1741512v2 





 






                                  Schedule 5                                   Insurance Binders    CHAR1\1741512v2 





 






                                  Schedule 6                            Management’s Discussion and Analysis     CHAR1\1741512v2 





 






                                  Schedule 7               Litigations, Arbitrations, or Governmental Investigations or Proceedings     CHAR1\1741512v2 





 






                                  Schedule 8                                   Material Contracts     CHAR1\1741512v2 





 






                                  Schedule 9              Listing of Deposit Accounts, Other Bank Accounts and Securities Accounts    CHAR1\1741512v2 





 






                                  Schedule 10                     Listing of Investments in Loan Parties and Subsidiaries    CHAR1\1741512v2