exhibit101_hercules6tham






Exhibit 10.1   1  SIXTH AMENDMENT TO LOAN AND SECURITY AGREEMENT  This SIXTH AMENDMENT TO LOAN AND SECURITY AGREEMENT (this  “Amendment”), dated as of  January 6, 2021 (the “Sixth Amendment Effective Date”), is entered into by  and among Tricida, Inc. (the “Borrower”), the several banks and other financial institutions or entities from  time to time party thereto (collectively, “Lender”), and Hercules Capital, Inc., a Maryland corporation, in  its capacity as administrative agent and collateral agent for itself and the Lender (in such capacity, together  with its successors and assigns in such capacity, the “Agent”).  WHEREAS, the Borrower, the Lender and Agent are parties to that certain Loan and Security  Agreement dated as of February 28, 2018 (as amended by the First Amendment to Loan and Security  Agreement and First Amendment to Warrants, dated as of April 10, 2018, the Second Amendment to Loan  and Security Agreement, dated as of October 15, 2018, the Third Amendment to Loan and Security  Agreement, dated as of March 27, 2019, the Fourth Amendment to Loan and Security Agreement, dated as  of March 31, 2020, and the Fifth Amendment to Loan and Security Agreement, dated as of May 18, 2020,  the “Existing Loan Agreement”; and the Existing Loan Agreement, as amended by this Amendment and as  further amended, modified or supplemented from time to time, the “Loan Agreement”);   WHEREAS, the Required Lenders, as defined in the Existing Loan Agreement, and Agent are  willing to amend the Existing Loan Agreement in accordance with and subject to the terms and conditions  set forth herein.   NOW, THEREFORE, in consideration of the foregoing recitals and other good and valuable  consideration, the receipt and adequacy of which are hereby acknowledged, and intending to be legally  bound, the parties hereto agree as follows:   SECTION 1 Definitions; Interpretation.  (a) All capitalized terms used in this Amendment (including in the recitals hereof) and not  otherwise defined herein shall have the meanings assigned to them in the Loan Agreement.  (b) The rules of interpretation set forth in Section 1.1 of the Loan Agreement shall be  applicable to this Amendment and are incorporated herein by this reference.  SECTION 2 Amendments to the Existing Loan Agreement.  (a) Upon satisfaction of the conditions set forth in Section 3 hereof, the Existing Loan  Agreement is hereby amended as follows:  (i) Exhibit A attached hereto sets forth a clean copy of the Loan Agreement as  amended hereby;  (ii) In Exhibit B hereto, deletions of the text in the Existing Loan Agreement  (including, to the extent included in such Exhibit B, each Schedule or Exhibit to the Existing Loan  Agreement) are indicated by struck through text, and insertions of text are indicated by bold, double- underlined text.  (b) References within Existing Loan Agreement. Upon satisfaction of the conditions set  forth in Section 3 hereof, each reference in the Existing Loan Agreement to “this Agreement” and the words  “hereof,” “herein,” “hereunder,” or words of like import, shall mean and be a reference to the Existing Loan  Agreement as further amended by this Amendment.  





 






 2    SECTION 3 Conditions of Effectiveness.  The effectiveness of Section 2 of this Amendment shall be  subject to the satisfaction of each of the following conditions precedent:   (a) Amendment.  Agent shall have received this Amendment, executed by Agent, the Lender  and the Borrower.  (b) Representations and Warranties; No Default.  On the Sixth Amendment Effective Date,  after giving effect to this Amendment:  (i) The representations and warranties contained in Section 4 shall be true and correct  on and as of the Sixth Amendment Effective Date as though made on and as of such date; and  (ii) There exist no Events of Default or events that with the passage of time would  result in an Event of Default.  SECTION 4 Representations and Warranties.  To induce Agent and Lender to enter into this  Amendment, Borrower hereby confirms, as of the date hereof, that the representations and warranties made  by it in Section 5 of the Loan Agreement and in the other Loan Documents are true and correct in all  material respects; provided, however, that such materiality qualifier shall not be applicable to any  representations and warranties that already are qualified or modified by materiality in the text thereof.  For  the purposes of this Section 4, (i) each reference in Section 5 of the Existing Loan Agreement to “this  Agreement,” and the words “hereof,” “herein,” “hereunder,” or words of like import in such section, shall  mean and be a reference to the Loan Agreement, and (ii) any representations and warranties which relate  solely to an earlier date shall not be deemed confirmed and restated as of the date hereof (provided that  such representations and warranties shall be true, correct and complete as of such earlier date).  SECTION 5 Miscellaneous.  (a) Loan Documents Otherwise Not Affected; Reaffirmation.  Except as expressly  amended pursuant hereto or referenced herein, the Loan Agreement and the other Loan Documents shall  remain unchanged and in full force and effect and are hereby ratified and confirmed in all respects.  The  Lender’s and Agent’s execution and delivery of, or acceptance of, this Amendment shall not be deemed to  create a course of dealing or otherwise create any express or implied duty by any of them to provide any  other or further amendments, consents or waivers in the future.  Borrower hereby reaffirms the grant of  security under Section 3.1 of the Loan Agreement and hereby reaffirms that such grant of security in the  Collateral secures all Secured Obligations under the Loan Agreement and the other Loan Documents.  (b) Conditions.  For purposes of determining compliance with the conditions specified in  Section 3, each Lender that has signed this Amendment 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 Agent shall have received notice from such  Lender prior to the Sixth Amendment Effective Date specifying its objection thereto.  (c) Release.  In consideration of the agreements of Agent and each Lender contained herein  and for other good and valuable consideration, the receipt and sufficiency of which are hereby  acknowledged, Borrower, on behalf of itself and its successors, assigns, and other legal representatives,  hereby fully, absolutely, unconditionally and irrevocably releases, remises and forever discharges Agent  and each Lender, and its successors and assigns, and its present and former shareholders, affiliates,  subsidiaries, divisions, predecessors, directors, officers, attorneys, employees, agents and other  representatives (Agent, Lenders and all such other persons being hereinafter referred to collectively as the  “Releasees” and individually as a “Releasee”), of and from all demands, actions, causes of action, suits,  





 






 3    covenants, contracts, controversies, agreements, promises, sums of money, accounts, bills, reckonings,  damages and any and all other claims, counterclaims, defenses, rights of set-off, demands and liabilities  whatsoever of every name and nature, known or unknown, suspected or unsuspected, both at law and in  equity, which Borrower, or any of its successors, assigns, or other legal representatives may now or  hereafter own, hold, have or claim to have against the Releasees or any of them for, upon, or by reason of  any circumstance, action, cause or thing whatsoever which arises at any time on or prior to the day and date  of this Amendment, for or on account of, or in relation to, or in any way in connection with the Loan  Agreement, or any of the other Loan Documents or transactions thereunder or related thereto.  Borrower  understands, acknowledges and agrees that the release set forth above may be pleaded as a full and complete  defense and may be used as a basis for an injunction against any action, suit or other proceeding which may  be instituted, prosecuted or attempted in breach of the provisions of such release.  Borrower agrees that no  fact, event, circumstance, evidence or transaction which could now be asserted or which may hereafter be  discovered shall, to the fullest extent of the law, affect in any manner the final, absolute and unconditional  nature of the release set forth above.    (d) No Reliance.  Borrower hereby acknowledges and confirms to Agent and the Lender that  Borrower is executing this Amendment on the basis of its own investigation and for its own reasons without  reliance upon any agreement, representation, understanding or communication by or on behalf of any other  Person.  (e) Costs and Expenses.  Borrower agrees to pay to Agent on the Sixth Amendment Effective  Date the out-of-pocket costs and expenses of Agent and the Lenders party hereto, and the fees and  disbursements of counsel to Agent and the Lenders party hereto (including allocated costs of internal  counsel), in connection with the negotiation, preparation, execution and delivery of this Amendment and  any other documents to be delivered in connection herewith on the Sixth Amendment Effective Date or  after such date not to exceed five thousand dollars ($5,000) in the aggregate.  (f) Binding Effect.  This Amendment binds and is for the benefit of the successors and  permitted assigns of each party.    (g) Governing Law.  This Amendment and the other Loan Documents shall be governed by,  and construed and enforced in accordance with, the laws of the State of California, excluding conflict of  laws principles that would cause the application of laws of any other jurisdiction.  (h) Complete Agreement; Amendments.  This Amendment and the Loan Documents  represent the entire agreement about this subject matter and supersede prior negotiations or agreements  with respect to such subject matter.  All prior agreements, understandings, representations, warranties, and  negotiations between the parties about the subject matter of this Amendment and the Loan Documents  merge into this Amendment and the Loan Documents.    (i) Severability of Provisions.  Each provision of this Amendment is severable from every  other provision in determining the enforceability of any provision.  (j) Counterparts.  This Amendment may be executed in any number of counterparts and by  different parties on separate counterparts, each of which, when executed and delivered, is an original, and  all taken together, constitute one Amendment.  Delivery of an executed counterpart of a signature page of  this Amendment by facsimile, portable document format (.pdf) or other electronic transmission will be as  effective as delivery of a manually executed counterpart hereof.  (k) Loan Documents. This Amendment shall constitute a Loan Document.  





 






 4    (l) Electronic Execution of Certain Other Documents.  The words “execution,” “execute”,  “signed,” “signature,” and words of like import in or related to any document to be signed in connection  with this Amendment and the transactions contemplated hereby (including without limitation assignments,  assumptions, amendments, 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  Collateral 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 California Uniform Electronic  Transactions Act, or any other similar state laws based on the Uniform Electronic Transactions Act.  [Balance of Page Intentionally Left Blank; Signature Pages Follow]    





 






  [Signature Page to Sixth Amendment to Loan and Security Agreement]  IN WITNESS WHEREOF, the parties hereto have duly executed this Amendment, as of the date  first above written.  BORROWER:    TRICIDA, INC.    By:       /s/ Geoffrey M. Parker  Name:  Geoffrey M. Parker  Title:    EVP & CFO        





 






    [Signature Page to Sixth Amendment to Loan and Security Agreement]  AGENT and LENDER:    HERCULES CAPITAL, INC.      By:      /s/ Zhuo Huang  Name:  Zhuo Huang  Title:    Associate General Counsel          LENDER:    HERCULES TECHNOLOGY III, L.P.,  a Delaware limited partnership    By:  Hercules Technology SBIC Management, LLC,  its General Partner    By:  Hercules Capital, Inc.,  its Manager      By:        /s/ Zhuo Huang  Name:   Zhuo Huang  Title:     Associate General Counsel      





 






     EXHIBIT A    [See attached] 





 






    CONFORMED COPY  First Amendment, April 10, 2018  Second Amendment, October 15, 2018  Third Amendment, March 27, 2019  Fourth Amendment, March 31, 2020  Fifth Amendment, May 18, 2020  Sixth Amendment, January 6, 2021  LOAN AND SECURITY AGREEMENT   THIS LOAN AND SECURITY AGREEMENT is made and dated as of February 28, 2018 (as  amended by that certain First Amendment to Loan and Security Agreement and First Amendment to  Warrants, dated as of April 10, 2018, that certain Second Amendment to Loan and Security  Agreement, dated as of October 15, 2018, that certain Third Amendment to Loan and Security  Agreement, dated as of March 27, 2019, that certain Fourth Amendment to Loan and Security  Agreement, dated as of March 31, 2020, that certain Fifth Amendment to Loan and Security  Agreement, dated as of May 18, 2020, and that certain Sixth Amendment to Loan and Security  Agreement, dated as of January 6, 2021, and as further amended, modified or supplemented from time  to time, this “Agreement”) and is entered into by and among Tricida, Inc., a Delaware corporation, and  each of its Qualified Subsidiaries from time to time party hereto (hereinafter collectively referred to as  the “Borrower”), the several banks and other financial institutions or entities from time to time parties  to this Agreement (collectively, referred to as “Lender”) and HERCULES CAPITAL, INC., a  Maryland corporation, in its capacity as administrative agent and collateral agent for itself and the  Lender (in such capacity, the “Agent”).    RECITALS  A. Borrower has requested Lender to make available to Borrower a loan in an aggregate  principal amount of up to Two Hundred Million Dollars ($200,000,000) (the “Term Loan”); and  B. Lender is willing to make the Term Loan on the terms and conditions set forth in this  Agreement.  AGREEMENT  NOW, THEREFORE, Borrower, Agent and Lender agree as follows:  SECTION 1.  DEFINITIONS AND RULES OF CONSTRUCTION  1.1 Unless otherwise defined herein, the following capitalized terms shall have the  following meanings:  “Account Control Agreement(s)” means any agreement entered into by and among the  Agent, Borrower and a third party Bank or other institution (including a Securities Intermediary) in  which Borrower maintains a Deposit Account or an account holding Investment Property and which  perfects Agent’s first priority security interest in the subject account or accounts.  





 






    2    “ACH Authorization” means the ACH Debit Authorization Agreement in substantially  the form of Exhibit H, which account numbers shall be redacted for security purposes if and when filed  publicly by the Borrower.  “Acquired Indebtedness” means Indebtedness of a Person whose assets or Equity  Interests are acquired by Borrower or any of its Subsidiaries in a Permitted Acquisition; provided, that  such Indebtedness (a) was in existence prior to the date of such Permitted Acquisition and (b) was not  incurred in connection with, or in contemplation of, such Permitted Acquisition.  “Acquisition” means (a) the purchase or other acquisition (including by merger,  consolidation or otherwise) by a Person or its Subsidiaries of all or substantially all of the assets of (or  any division or business line of) any other Person or (b) the purchase or other acquisition (whether by  means of a merger, consolidation, or otherwise) by a Person or its Subsidiaries of all or substantially all  of the Equity Interests of any other Person.  “Advance(s)” means a Term Loan Advance.  “Advance Date” means the funding date of any Advance.  “Advance Request” means a request for an Advance submitted by Borrower to Agent in  substantially the form of Exhibit A, which account numbers shall be redacted for security purposes if  and when filed publicly by the Borrower.  “Affiliate” means (a) any Person that directly or indirectly controls, is controlled by, or is  under common control with the Person in question, (b) any Person directly or indirectly owning,  controlling or holding with power to vote ten percent (10%) or more of the outstanding voting securities  of another Person, (c) any Person ten percent (10%) or more of whose outstanding voting securities are  directly or indirectly owned, controlled or held by another Person with power to vote such securities, or  (d) any Person related by blood or marriage to any Person described in subsection (a), (b) or (c) of this  paragraph.  As used in the definition of “Affiliate,” the term “control” means the possession, directly or  indirectly, of the power to direct or cause the direction of the management and policies of a Person,  whether through ownership of voting securities, by contract or otherwise.  “Agent” has the meaning given to it in the preamble to this Agreement.  “Amortization Date” means April 1, 2022.  “Anti-Corruption Laws” shall mean all laws, rules, and regulations of any jurisdiction  applicable to Borrower or any of its Affiliates from time to time concerning or relating to bribery or  corruption, including without limitation the United States Foreign Corrupt Practices Act of 1977, as  amended, the UK Bribery Act 2010 and other similar legislation in any other jurisdictions.  “Anti-Terrorism Laws” means any laws, rules, regulations or orders relating to  terrorism or money laundering, including without limitation Executive Order No. 13224 (effective  September 24, 2001), the USA PATRIOT Act, the laws comprising or implementing the Bank Secrecy  Act, and the laws administered by OFAC.  





 






    3    “Approval Milestone” means Borrower shall have obtained final approval for the NDA  for TRC101 (a/k/a Veverimer) from the FDA, subject to verification by Agent (including supporting  documentation requested by Agent).  “Assignee” has the meaning given to it in Section 11.13.  “Blocked Person” means any Person:  (a) listed in the annex to, or is otherwise subject to  the provisions of, Executive Order No. 13224, (b) a Person owned or controlled by, or acting for or on  behalf of, any Person that is listed in the annex to, or is otherwise subject to the provisions of, Executive  Order No. 13224, (c) a Person with which any Lender is prohibited from dealing or otherwise engaging  in any transaction by any Anti-Terrorism Law, (d) a Person that commits, threatens or conspires to  commit or supports “terrorism” as defined in Executive Order No. 13224, or (e) a Person that is named  a “specially designated national” or “blocked person” on the most current list published by OFAC or  other similar list.  “Borrower Products” means all products, software, service offerings, technical data or  technology currently being designed, manufactured or sold by Borrower or which Borrower intends to  sell, license, or distribute in the future including any products or service offerings under development,  collectively, together with all products, software, service offerings, technical data or technology that  have been sold, licensed or distributed by Borrower since its incorporation.  “Borrower’s Market Capitalization” means, for any given date of determination, an  amount equal to (a) the average of the daily volume weighted average price of Common Stock as  reported for each the five (5) trading days preceding such date of determination (it being understood  that a “trading day” shall mean a day on which shares of Common Stock trade on the NASDAQ in an  ordinary trading session) multiplied by (b) the total number of issued and outstanding shares of  Common Stock that are issued and outstanding on the date of the determination and listed on the  NASDAQ (or, if the primary listing of such Common Stock is on another exchange, on such other  exchange).  Such determination shall be appropriately adjusted for any stock dividend, stock split,  stock combination, reclassification or other similar transaction during the applicable calculation period.  “Business Day” means any day other than Saturday, Sunday and any other day on which  banking institutions in the State of California are closed for business.  “Cash” means all cash, cash equivalents and liquid funds.  “Cash Interest Rate Reduction Level” has the meaning set forth in Section 2.2(d)(iii).  “Change in Control” means any reorganization, recapitalization, consolidation or  merger (or similar transaction or series of related transactions) of Borrower, sale or exchange of  outstanding shares (or similar transaction or series of related transactions (other than by the sale of  Borrower’s equity securities in a public offering)) of Borrower in which the holders of Borrower’s  outstanding shares immediately before consummation of such transaction or series of related  transactions do not, immediately after consummation of such transaction or series of related  transactions, retain shares representing more than fifty percent (50%) of the voting power of the  surviving entity of such transaction or series of related transactions (or the parent of such surviving  





 






    4    entity if such surviving entity is wholly owned by such parent), in each case without regard to whether  Borrower is the surviving entity, provided that, if Borrower’s shares are publicly traded, “Change in  Control” instead means any event, transaction, or occurrence as a result of which (a) any “person” (as  such term is defined in Sections 3(a)(9) and 13(d)(3) of the Exchange Act), other than a trustee or other  fiduciary holding securities under an employee benefit plan of Borrower, is or becomes a beneficial  owner (within the meaning Rule 13d-3 promulgated under the Exchange Act), directly or indirectly, of  securities of Borrower, representing thirty percent (30%) or more of the combined voting power of  Borrower’s then outstanding securities; or (b) during any period of twelve consecutive calendar  months, individuals who at the beginning of such period constituted the board of directors of Borrower  (together with any new directors whose election by the board of directors of Borrower was approved  by a vote of not less than two-thirds of the directors then still in office who either were directions at the  beginning of such period  or whose election or nomination for election was previously so approved)  cease for any reason other than death or disability to constitute a majority of the directors then in  office.   “Claims” has the meaning given to it in Section 11.10.  “Closing Date” means February 28, 2018.  “Closing Date Facility Charge” means Six Hundred Fifty Thousand Dollars ($650,000).  “Collateral” means the property described in Section 3.  “Common Stock” means the common stock, par value $0.001 per share, of the Borrower.  “Confidential Information” has the meaning given to it in Section 11.12.  “Contingent Obligation” means, as applied to any Person, any direct or indirect liability,  contingent or otherwise, of that Person with respect to (i) any Indebtedness, lease, dividend, letter of  credit or other obligation of another, including any such obligation directly or indirectly guaranteed,  endorsed, co-made or discounted or sold with recourse by that Person, or in respect of which that Person  is otherwise directly or indirectly liable; (ii) any obligations with respect to undrawn letters of credit,  corporate credit cards or merchant services issued for the account of that Person; and (iii) all obligations  arising under any interest rate, currency or commodity swap agreement, interest rate cap agreement,  interest rate collar agreement, or other agreement or arrangement designated to protect a Person against  fluctuation in interest rates, currency exchange rates or commodity prices; provided, however, that the  term “Contingent Obligation” shall not include endorsements for collection or deposit in the ordinary  course of business.  The amount of any Contingent Obligation shall be deemed to be an amount equal to  the stated or determined amount of the primary obligation in respect of which such Contingent  Obligation is made or, if not stated or determinable, the maximum reasonably anticipated liability in  respect thereof as determined by such Person in good faith; provided, however, that such amount shall  not in any event exceed the maximum amount of the obligations under the guarantee or other support  arrangement.  





 






    5    “Copyright License” means any written agreement granting any right to use any  Copyright or Copyright registration, now owned or hereafter acquired by Borrower or in which  Borrower now holds or hereafter acquires any interest.  “Copyrights” means all copyrights, whether registered or unregistered, held pursuant to  the laws of the United States of America, any State thereof, or of any other country.  “Deposit Accounts” means any “deposit accounts,” as such term is defined in the UCC,  and includes any checking account, savings account, or certificate of deposit.  “Domestic Subsidiary” means any Subsidiary that is not a Foreign Subsidiary.  “Eligible Foreign Subsidiary” means any Foreign Subsidiary whose execution of a  Joinder Agreement could not result in a material adverse tax consequence to Borrower.  “End of Term Charge” means any end of term charge payable pursuant to Section 2.6.  “Equity Interests” means, with respect to any Person, the capital stock, partnership or  limited liability company interest, or other equity securities or equity ownership interests of such  Person.  “ERISA” means the Employee Retirement Income Security Act of 1974, as amended,  and the regulations promulgated thereunder.  “Event of Default” has the meaning given to it in Section 9.  “Excluded Accounts” means any Deposit Account that is used solely as a payroll  account for the employees of Borrower or any of its Subsidiaries or the funds in which consist solely of  funds held in trust for any director, officer or employee of Borrower or such Subsidiary or any  employee benefit plan maintained by Borrower or such Subsidiary or funds representing deferred  compensation for the directors and employees of Borrower or such Subsidiary, collectively not to  exceed the amount to be paid in the ordinary course of business in the then-next payroll cycle.  “FDA” means the United States Food and Drug Administration.  “Financial Statements” has the meaning given to it in Section 7.1.  “Foreign Subsidiary” means any Subsidiary other than a Subsidiary organized under the  laws of any state within the United States of America.  “GAAP” means generally accepted accounting principles in the United States of  America, as in effect from time to time.    “Indebtedness” means indebtedness of any kind, including (a) all indebtedness for  borrowed money or the deferred purchase price of property or services (excluding trade credit entered  into in the ordinary course of business due within ninety (90) days), including reimbursement and other  obligations with respect to surety bonds and letters of credit, (b) all obligations evidenced by notes,  





 






    6    bonds, debentures or similar instruments, (c) all capital lease obligations, and (d) all Contingent  Obligations.  “Insolvency Proceeding” is any proceeding by or against any Person under the United  States Bankruptcy Code, or any other bankruptcy or insolvency law, including assignments for the  benefit of creditors, compositions, extensions generally with its creditors, or proceedings seeking  reorganization, arrangement, or other similar relief.  “Intellectual Property” means all of Borrower’s Copyrights; Trademarks; Patents;  Licenses; trade secrets and inventions; mask works; Borrower’s applications therefor and reissues,  extensions, or renewals thereof; and Borrower’s goodwill associated with any of the foregoing, together  with Borrower’s rights to sue for past, present and future infringement of Intellectual Property and the  goodwill associated therewith.  “Interim Analysis” means the completion of either of the two interim analyses for  efficacy (to be performed when approximately 150 and 250 subjects have had a positively adjudicated  primary endpoint event) as described in Borrower’s Clinical Study Protocol TRCA-303 (VALOR- CKD) for TRC 101 (a/k/a “Veverimer”), Amendment 2, dated November 18, 2020.  “Investment” means any beneficial ownership (including stock, partnership or limited  liability company interests) of or in any Person, or any loan, advance or capital contribution to any  Person or the acquisition of any asset of another Person.  “Joinder Agreements” means for each Qualified Subsidiary, a completed and executed  Joinder Agreement in substantially the form attached hereto as Exhibit G.  “Lender” has the meaning given to it in the preamble to this Agreement.  “License” means any Copyright License, Patent License, Trademark License or other  license of rights or interests.  “Lien” means any mortgage, deed of trust, pledge, hypothecation, assignment for  security, security interest, encumbrance, levy, lien or charge of any kind, whether voluntarily incurred  or arising by operation of law or otherwise, against any property, any conditional sale or other title  retention agreement, and any lease in the nature of a security interest.  “Loan” means the Advances made under this Agreement.  “Loan Documents” means this Agreement, the Notes (if any), the ACH Authorization,  the Account Control Agreements, the Joinder Agreements, all UCC financing statements, the Warrant  and any other documents executed in connection with the Secured Obligations or the transactions  contemplated hereby, as the same may from time to time be amended, modified, supplemented or  restated.  “Material Adverse Effect” means a material adverse effect upon: (i) the business,  operations, properties, assets or financial condition of Borrower and its Subsidiaries taken as a whole;  





 






    7    (ii) the ability of Borrower to perform or pay the Secured Obligations in accordance with the terms of  the Loan Documents, or the ability of Agent or Lender to enforce any of its rights or remedies with  respect to the Secured Obligations; or (iii) the Collateral or Agent’s Liens on the Collateral or the  priority of such Liens.  “Maximum Rate” shall have the meaning assigned to such term in Section 2.3.  “Maximum Term Loan Amount” means Seventy-Five Million and No/100 Dollars  ($75,000,000).  “Merger Event” means any Change of Control or any sale, lease, exclusive license or  other transfer of all or substantially all assets or Common Stock of the Borrower or any consolidation,  merger, recapitalization or reorganization involving the Borrower in which the Borrower is not the  surviving entity, or in which the outstanding shares of the Borrower’s capital stock are otherwise  converted into or exchanged for shares of common stock, preferred stock, other securities or property  of another entity; other than any such consolidation, merger, recapitalization or reorganization in  which the shares of capital stock of the Borrower immediately prior to such consolidation, merger or  reorganization, continue to represent a majority of the voting power of the surviving entity (or, if the  surviving entity is a wholly owned subsidiary, its parent) immediately after such consolidation, merger,  recapitalization or reorganization (it being understood that for purposes of any such determination, all  shares of Common Stock issuable upon exercise of options or warrants outstanding immediately prior  to any such consolidation, merger, recapitalization or reorganization or upon conversion of convertible  securities outstanding immediately prior to such consolidation, merger, recapitalization or  reorganization shall be deemed to be outstanding immediately prior to such consolidation, merger,  recapitalization or reorganization and, if applicable, converted or exchanged in such consolidation,  merger, recapitalization or reorganization on the same terms as the actual outstanding shares of capital  stock are converted or exchanged).  “NDA” means a new drug application filed with the FDA.   “Net TRC101 Product Revenue” means Borrower’s product revenue from TRC101  (including licensing, royalty and other payments, including from collaboration arrangements, derived  from or related to TRC101) that is invoiced and/or recognized as net revenue (as determined in  accordance with GAAP as applied by Borrower), calculated in a manner consistent with how such  amount is (or is to be) reported in Borrower’s audited Financial Statements.  “Net TRC101 Product Revenue (Cumulative)” means the cumulative aggregate amount  of all Net TRC101 Product Revenue since the Third Amendment Effective Date.  “Non-Disclosure Agreement” means that certain Mutual Confidential Disclosure  Agreement by and between Borrower and Hercules Capital, Inc. dated as of May 3, 2017.  “Note(s)” means a Term Note.  “OFAC” is the U.S. Department of Treasury Office of Foreign Assets Control.  





 






    8    “OFAC Lists” are, collectively, the Specially Designated Nationals and Blocked Persons  List maintained by OFAC pursuant to Executive Order No. 13224, 66 Fed. Reg. 49079 (Sept. 25, 2001)  and/or any other list of terrorists or other restricted Persons maintained pursuant to any of the rules and  regulations of OFAC or pursuant to any other applicable Executive Orders.  “Patent License” means any written agreement granting any right with respect to any  invention on which a Patent is in existence or a Patent application is pending, in which agreement  Borrower now holds or hereafter acquires any interest.  “Patents” means all letters patent of, or rights corresponding thereto, in the United States  of America or in any other country, all registrations and recordings thereof, and all applications for  letters patent of, or rights corresponding thereto, in the United States of America or any other country.  “Permitted Acquisition” shall mean any Acquisition (including by way of merger),  which is conducted in accordance with the following requirements:  (a) such Acquisition is of a business or Person engaged in a line of business related  to that of the Borrower or its Subsidiaries;  (b) if such Acquisition is structured as a stock Acquisition, then the Person so  acquired shall either (i) become a wholly-owned Subsidiary of Borrower or of a Subsidiary and the  Borrower shall comply, or cause such Subsidiary to comply, with Section 7.13 hereof or (ii) such  Person shall be merged with and into Borrower (with the Borrower being the surviving entity);  (c) if such Acquisition is structured as the Acquisition of assets, such assets shall be  acquired by Borrower, and shall be free and clear of Liens other than Permitted Liens;  (d) both immediately before and after such Acquisition no Default or Event of  Default shall have occurred and be continuing; and  (e) the sum of the cash portion of the purchase price of such proposed new  Acquisition, computed on the basis of total Acquisition consideration paid or incurred, or to be paid or  incurred, by Borrower with respect thereto, including the amount of Permitted Indebtedness assumed  or to which such assets, businesses or business or ownership interest or shares, or any Person so  acquired, is subject, shall not be greater than Five Million Dollars ($5,000,000) for all such  Acquisitions during the term of this Agreement; and  (g) the sum of any consideration for all such Acquisitions (other than any Acquisition in  which the target of such Acquisition achieved EBITDA (as reasonably defined by Agent) of at least $1  on a trailing twelve (12) month basis immediately prior to the consummation of such Acquisition))  paid in Equity Interests of Borrower shall not exceed One Hundred Million Dollars ($100,000,000) for  all such Acquisitions during the term of this Agreement.    “Permitted Convertible Indebtedness” means Indebtedness that is convertible into a  fixed number (subject to customary anti-dilution adjustments, “make-whole” increases and other  customary changes thereto) of shares of Common Stock of Borrower (or other securities or property  





 






    9    following a Merger Event or other change of the Common Stock of Borrower), cash or any  combination thereof (with the amount of such cash or such combination determined by reference to the  market price of such Common Stock or such other securities) issued by the Borrower after the Third  Amendment Effective Date pursuant to an offering consummated in accordance with or registered  under the Securities Act of 1933, provided that (w) such Indebtedness is unsecured, (x) such  Indebtedness does not have a scheduled maturity date, any scheduled amortization payments or any  mandatory cash prepayments or redemptions of principal earlier than one hundred eighty (180) days  after the Term Loan Maturity Date (other than cash in lieu of fractional shares upon any conversion  thereof), (y) on the date of issuance thereof, the Borrower’s Market Capitalization is not less than  $1,000,000,000 and (z) the aggregate principal amount of such Indebtedness shall not exceed  $250,000,000.  “Permitted Indebtedness” means: (i) Indebtedness of Borrower in favor of Lender or  Agent arising under this Agreement or any other Loan Document; (ii) Indebtedness existing on the  Third Amendment Effective Date which is disclosed in Schedule 1A; (iii) Indebtedness of up to  $5,000,000 outstanding at any time secured by a Lien described in clause (vii) of the defined term  “Permitted Liens,” provided such Indebtedness does not exceed the cost of the Equipment financed with  such Indebtedness; (iv) Indebtedness to trade creditors incurred in the ordinary course of business,  including Indebtedness incurred in the ordinary course of business with corporate credit cards; (v)  Indebtedness that also constitutes a Permitted Investment; (vi) Subordinated Indebtedness; (vii)  reimbursement obligations in connection with letters of credit that are secured by Cash and issued on  behalf of the Borrower or a Subsidiary thereof in an amount not to exceed $5,000,000 at any time  outstanding; (viii) other Indebtedness in an amount not to exceed $2,000,000 at any time outstanding;  (ix) intercompany Indebtedness as long as each of the Subsidiary obligor and the Subsidiary obligee  under such Indebtedness is a Qualified Subsidiary that has executed a Joinder Agreement; (x) Acquired  Indebtedness in a principal amount not to exceed $5,000,000 outstanding at any one time;  (xi)  Permitted Convertible Indebtedness and (xii) extensions, refinancings and renewals of any items of  Permitted Indebtedness, provided that the principal amount is not increased or the terms modified to  impose materially more burdensome terms upon Borrower or its Subsidiary, as the case may be.  “Permitted Investment” means: (i) Investments existing on the Third Amendment  Effective Date which are disclosed in Schedule 1B; (ii) (a) marketable direct obligations issued or  unconditionally guaranteed by the United States of America or any agency or any State thereof  maturing within one year from the date of acquisition thereof currently having a rating of at least A-2 or  P-2 from either Standard & Poor’s Corporation or Moody’s Investors Services, (b) commercial paper  maturing no more than one year from the date of creation thereof and currently having a rating of at  least A-2 or P-2 from either Standard & Poor’s Corporation or Moody’s Investors Service, (c)  certificates of deposit issued by any bank with assets of at least $250,000,000 maturing no more than  one year from the date of investment therein, and (d) money market accounts; (iii) repurchases of stock  from former employees, directors, or consultants of Borrower under the terms of applicable repurchase  agreements at the original issuance price of such securities in an aggregate amount not to exceed  $2,000,000 in any fiscal year, provided that no Event of Default has occurred, is continuing or could  exist after giving effect to the repurchases; (iv) Investments accepted in connection with Permitted  Transfers; (v) 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  





 






    10    disputes with, customers or suppliers arising in the ordinary course of Borrower’s business; (vi)  Investments consisting of notes receivable of, or prepaid royalties and other credit extensions, to  customers and suppliers who are not Affiliates, in the ordinary course of business, provided that this  subparagraph (vi) shall not apply to Investments of Borrower in any Subsidiary; (vii) Investments  consisting of loans not involving the net transfer on a substantially contemporaneous basis of cash  proceeds to employees, officers or directors relating to the purchase of capital stock of Borrower  pursuant to employee stock purchase plans or other similar agreements approved by Borrower’s board  of directors; (viii) Investments consisting of travel advances in the ordinary course of business; (ix)  Investments in newly-formed Domestic Subsidiaries or Qualified Subsidiaries acquired in connection  with a Permitted Acquisition, provided that each such Domestic Subsidiary enters into a Joinder  Agreement promptly after its formation by Borrower and execute such other documents as shall be  reasonably requested by Agent; (x) Investments in Foreign Subsidiaries approved in advance in writing  by Agent; (xi) joint ventures or strategic alliances in the ordinary course of Borrower’s business  consisting of the nonexclusive licensing of technology, the development of technology or the providing  of technical support, provided that any cash Investments by Borrower do not exceed $5,000,000 in the  aggregate in any fiscal year; (xii) Permitted Vendor Payments; (xiii) Permitted Acquisitions and (xiv)  additional Investments that do not exceed $2,000,000 in the aggregate.  “Permitted Liens” means any and all of the following: (i) Liens in favor of Agent or  Lender; (ii) Liens existing on the Third Amendment Effective Date which are disclosed in Schedule 1C;  (iii) Liens for taxes, fees, assessments or other governmental charges or levies, either not delinquent or  being contested in good faith by appropriate proceedings; provided, that Borrower maintains adequate  reserves therefor in accordance with GAAP; (iv) Liens securing claims or demands of materialmen,  artisans, mechanics, carriers, warehousemen, landlords and other like Persons arising in the ordinary  course of Borrower’s business and imposed without action of such parties; provided, that the payment  thereof is not yet required; (v) Liens arising from judgments, decrees or attachments in circumstances  which do not constitute an Event of Default hereunder; (vi) the following deposits, to the extent made in  the ordinary course of business:  deposits under worker’s compensation, unemployment insurance,  social security and other similar laws, or to secure the performance of bids, tenders or contracts (other  than for the repayment of borrowed money) or to secure indemnity, performance or other similar bonds  for the performance of bids, tenders or contracts (other than for the repayment of borrowed money) or to  secure statutory obligations (other than Liens arising under ERISA or environmental Liens) or surety or  appeal bonds, or to secure indemnity, performance or other similar bonds; (vii) Liens on Equipment or  software or other Intellectual Property constituting purchase money Liens and Liens in connection with  capital leases securing Indebtedness permitted in clause (iii) of “Permitted Indebtedness”; (viii) Liens  incurred in connection with Subordinated Indebtedness; (ix) leasehold interests in leases or subleases  and licenses granted in the ordinary course of business and not interfering in any material respect with  the business of the licensor; (x) Liens in favor of customs and revenue authorities arising as a matter of  law to secure payment of custom duties that are promptly paid on or before the date they become due;  (xi) Liens on insurance proceeds securing the payment of financed insurance premiums that are  promptly paid on or before the date they become due (provided that such Liens extend only to such  insurance proceeds and not to any other property or assets); (xii) statutory and common law rights of  set-off and other similar rights as to deposits of cash and securities in favor of banks, other depository  institutions and brokerage firms; (xiii) easements, zoning restrictions, rights-of-way and similar  encumbrances on real property imposed by law or arising in the ordinary course of business so long as  





 






    11    they do not materially impair the value or marketability of the related property; (xiv) (A) Liens on  Cash securing obligations permitted under clause (vii) of the definition of Permitted Indebtedness and  (B) security deposits in connection with real property leases, the combination of (A) and (B) in an  aggregate amount not to exceed $5,000,000 at any time; (xv) Liens securing obligations in an  aggregate amount not to exceed $2,000,000 at any time; (xvi) Liens assumed by Borrower or its  Subsidiaries in connection with a Permitted Acquisition that secure Acquired Indebtedness permitted  under clause (x) of Permitted Indebtedness; and (xvii) Liens incurred in connection with the extension,  renewal or refinancing of the Indebtedness secured by Liens of the type described in clauses (i) through  (xvi) above; provided, that any extension, renewal or replacement Lien shall be limited to the property  encumbered by the existing Lien and the principal amount of the Indebtedness being extended, renewed  or refinanced (as may have been reduced by any payment thereon) does not increase.  “Permitted Transfers” means (i) sales of Inventory in the ordinary course of business; (ii)  non-exclusive licenses and similar arrangements for the use of Intellectual Property in the ordinary  course of business and licenses that could not result in a legal transfer of title of the licensed property  but that may be exclusive in respects other than territory and that may be exclusive as to territory only  as to discreet geographical areas outside of the United States of America in the ordinary course of  business; (iii) dispositions of worn-out, obsolete or surplus Equipment at fair market value in the  ordinary course of business; (iv) Permitted Investments; (v) payments on arm’s length terms in  connection with the production, marketing, manufacturing, testing, distribution, packaging,  development or sale of TRC101 in the ordinary course of business and (vi) other transfers of assets  having a fair market value of not more than $5,000,000 in the aggregate in any fiscal year.  “Permitted Vendor Payments” means any expense reimbursement, advance, investment  or other form of payment or transfer of consideration to suppliers, manufacturers or other contractual  counterparties, in each case that are not Affiliates of Borrower, pursuant to arm’s length contractual  arrangements for the production, marketing, manufacturing, testing, distribution, packaging,  development or sale of products of the Borrower or any of its Subsidiaries in the ordinary course.    “Person” means any individual, sole proprietorship, partnership, joint venture, trust,  unincorporated organization, association, corporation, limited liability company, institution, other entity  or government.  “PIK Deferral Period” has the meaning set forth in 2.2(d)(iii).   “Prepayment Charge” shall have the meaning assigned to such term in Section 2.5.   “Public Offering” shall have the meaning assigned to such term in Section 8.1.  “Qualified Subsidiary” means any direct or indirect Domestic Subsidiary or Eligible  Foreign Subsidiary.  “Receivables” means (i) all of Borrower’s Accounts, Instruments, Documents, Chattel  Paper, Supporting Obligations, letters of credit, proceeds of any letter of credit, and Letter of Credit  Rights, and (ii) all customer lists, software, and business records related thereto.  





 






    12    “Redemption Conditions” means, with respect to any redemption by Borrower of any  Permitted Convertible Indebtedness, satisfaction of each of the following events: (a) at the time of such  redemption, no fact or condition exists or results therefrom that could (or could, with the passage of  time, the giving of notice, or both) constitute an Event of Default, and (b) both immediately before and  at all times after such redemption, Borrower’s Unrestricted Cash shall be not less than 100% of the  outstanding Secured Obligations.  “Required Lenders” means at any time, the holders of more than 50% of the sum of the  aggregate unpaid principal amount of the Term Loans then outstanding.  “Responsible Officer” is any of the Chief Executive Officer, President, Chief Financial  Officer, Chief Accounting Officer and General Counsel of Borrower.    “Sanctioned Country” shall mean, at any time, a country or territory which is the subject  or target of any Sanctions.  “Sanctioned Person” shall mean, at any time, (a) any Person listed in any Sanctions- related list of designated Persons maintained by the Office of Foreign Assets Control of the U.S.  Department of the Treasury or the U.S. Department of State, or by the United Nations Security Council,  the European Union or any EU member state, (b) any Person operating, organized or resident in a  Sanctioned Country or (c) any Person controlled by any such Person.  “Sanctions” shall mean economic or financial sanctions or trade embargoes imposed,  administered or enforced from time to time by (a) the U.S. government, including those administered by  the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of  State, or (b) the United Nations Security Council, the European Union or Her Majesty’s Treasury of the  United Kingdom.  “SBA” shall have the meaning assigned to such term in Section 7.16.  “SBIC” shall have the meaning assigned to such term in Section 7.16.  “SBIC Act” shall have the meaning assigned to such term in Section 7.16.  “Secured Obligations” means Borrower’s obligations under this Agreement and any  Loan Document (other than the Warrant), including any obligation to pay any amount now owing or  later arising.  “Securities Act” means the Securities Act of 1933, as amended.  “Sixth Amendment” means that certain Sixth Amendment to Loan and Security  Agreement, dated as of the January 6, 2021, by and among Borrower, Lender, and Agent.  “Sixth Amendment Effective Date” means the date on which all of the conditions  precedent set forth in Section 3 of the Sixth Amendment have been satisfied or waived.  





 






    13    “Subordinated Indebtedness” means  Indebtedness subordinated to the Secured  Obligations in amounts and on terms and conditions satisfactory to Agent in its sole discretion and  subject to a subordination agreement in form and substance satisfactory to Agent in its sole discretion.  “Subsidiary” means an entity, whether corporate, partnership, limited liability company,  joint venture or otherwise, in which Borrower owns or controls 50% or more of the outstanding voting  securities, including each entity listed on Schedule 1 hereto.  “Term Commitment” means as to any Lender, the obligation of such Lender, if any, to  make a Term Loan Advance to the Borrower in a principal amount not to exceed the amount set forth  under the heading “Term Commitment” opposite such Lender’s name on Schedule 1.1.    “Term Loan Advance” means any Term Loan funds advanced under this Agreement.   “Term Loan Cash Interest Rate” means for any day a per annum rate of interest equal to:  (1) the greater of either (i) the lesser of (x) 8.35% plus the prime rate as reported in The  Wall Street Journal minus 6.00% and (y) 9.85%, and (ii) 8.35%; less  (2) for any day occurring during a PIK Deferral Period, the Cash Interest Rate Reduction  Level for such PIK Deferral Period as determined in accordance with Section 2.2(d)(iii); less,  (3) the applicable percentage set forth under the column heading “Term Loan Cash  Interest Rate Reduction” in the table below, based on the aggregate amount of all Net TRC101 Product  Revenues (Cumulative), as set forth in the Compliance Certificate most recently delivered in accordance  with Section 7.1(d), subject to receipt by Agent of supporting documentation (which may be in redacted  form) reasonably requested by Agent and necessary to verify the calculation of Net TRC101 Product  Revenues (Cumulative) set forth therein:    Net TRC101 Product Revenues  (Cumulative)  Term Loan Cash Interest Rate  Reduction  Less than $100,000,000 0.00%  $100,000,000 0.35%  $250,000,000 0.60%  $400,000,000 1.15%  For the avoidance of doubt, with respect to any day prior to the Third Amendment  Effective Date, the “Term Loan Cash Interest Rate” shall have the meaning given to such term in this  Agreement as in effect on such day prior to giving effect to the Third Amendment.    “Term Loan PIK Interest” has the meaning set forth in Section 2.2(d)(ii).  “Term Loan PIK Interest Rate” means, for any day a per annum rate of interest equal to  (a) during any PIK Deferral Period, the Cash Interest Rate Reduction Level, multiplied by 1.2, and (b)  otherwise, 0.00%. For illustrative purposes, if the Cash Interest Rate Reduction Level is 0.50%, then the  





 






    14    Term Loan PIK Interest Rate shall be 0.60% and if the Cash Interest Rate Reduction Level is 1.50%,  then the Term Loan PIK Interest Rate shall be 1.80%.   “Term Loan Maturity Date” means October 1, 2023; provided that if Borrower achieves  the Approval Milestone on or before October 1, 2023, the “Term Loan Maturity Date” shall mean April  1, 2024.  “Term Note” means a Promissory Note in substantially the form of Exhibit B.  “Third Amendment” means that certain Third Amendment to Loan and Security  Agreement, dated as of the March 27, 2019, by and among Borrower, Lender, and Agent.  “Third Amendment Effective Date” means the date on which all of the conditions  precedent set forth in Section 3 of the Third Amendment have been satisfied or waived.  “Trademark License” means any written agreement granting any right to use any  Trademark or Trademark registration, now owned or hereafter acquired by Borrower or in which  Borrower now holds or hereafter acquires any interest.   “Trademarks” means all trademarks (registered, common law or otherwise) and any  applications in connection therewith, including registrations, recordings and applications in the United  States Patent and Trademark Office or in any similar office or agency of the United States of America,  any State thereof or any other country or any political subdivision thereof.  “Tranche 1-A” has the meaning set forth in Section 2.2(a)(i).  “Tranche 1-B” has the meaning set forth in Section 2.2(a)(ii).  “Tranche 1-C” has the meaning set forth in Section 2.2(a)(iii).  “Tranche 1-D” has the meaning set forth in Section 2.2(a)(iv).  “UCC” means the Uniform Commercial Code as the same is, from time to time, in effect  in the State of California; provided, that in the event that, by reason of mandatory provisions of law, any  or all of the attachment, perfection or priority of, or remedies with respect to, Agent’s Lien on any  Collateral is governed by the Uniform Commercial Code as the same is, from time to time, in effect in a  jurisdiction other than the State of California, then the term “UCC” shall mean the Uniform Commercial  Code as in effect, from time to time, in such other jurisdiction solely for purposes of the provisions  thereof relating to such attachment, perfection, priority or remedies and for purposes of definitions  related to such provisions.     “Unrestricted Cash” means Cash held by Borrower subject to an Account Control  Agreement.  “Warrant” means any warrant entered into in connection with the Borrower’s draw of  each Term Loan Advance in Tranche 1-A, Tranche 1-B, Tranche 1-C, and/or Tranche 1-D, respectively,  in substantially the same form as set forth in either Exhibit I or Exhibit J (as applicable) and any other  





 






    15    warrant entered into among Borrower and Agent or any Lender, in each case as may be amended,  restated or modified from time to time.   Unless otherwise specified, all references in this Agreement or any Annex or Schedule hereto  to a “Section,” “subsection,” “Exhibit,” “Annex,” or “Schedule” shall refer to the corresponding  Section, subsection, Exhibit, Annex, or Schedule in or to this Agreement.  Unless otherwise  specifically provided herein, any accounting term used in this Agreement or the other Loan Documents  shall have the meaning customarily given such term in accordance with GAAP, and all financial  computations hereunder shall be computed in accordance with GAAP, consistently applied. Unless  otherwise defined herein or in the other Loan Documents, terms that are used herein or in the other  Loan Documents and defined in the UCC shall have the meanings given to them in the UCC.  For  purposes of the Loan Documents, whenever a representation or warranty is made to Borrower’s  knowledge or awareness, to the “best of” Borrower’s knowledge, or with a similar qualification,  knowledge or awareness means the actual knowledge, after reasonable investigation, of any  Responsible Officer.  SECTION 2.  THE LOAN  2.1 [Reserved].  2.2 Term Loan.  (a) Tranches.  (i) Tranche 1-A.  Subject to the terms and conditions of this Agreement  Lenders with Term Commitments with respect to a Tranche 1-A severally (and not  jointly) made a Term Loan Advance in a principal amount of Twenty-Five Million  Dollars ($25,000,000) on the Closing Date (“Tranche 1-A”).   (ii) Tranche 1-B.  Subject to the terms and conditions of this Agreement,  Lender with a Term Commitment with respect to Tranche 1-B made a Term Loan  Advance in a principal amount of Fifteen Million Dollars ($15,000,000) on December  28, 2018 (“Tranche 1-B”).  (iii) Tranche 1-C.  Subject to the terms and conditions of this Agreement, on  or before December 15, 2019, Borrower may request, and if requested, Lender with a  Term Commitment with respect to Tranche 1-C shall make, one additional Term Loan  Advance in a principal amount of Twenty Million Dollars ($20,000,000) (“Tranche 1- C”).  (iv) Tranche 1-D.  Subject to the terms and conditions of this Agreement, on  or before December 15, 2020, Borrower may request, and if requested, Lender with a  Term Commitment with respect to Tranche 1-C shall make, one additional Term Loan  Advance in a principal amount of Fifteen Million Dollars ($15,000,000) (“Tranche 1-D”).  





 






    16    (b) The aggregate outstanding principal amount of Term Loan Advances (other than  any Term Loan PIK Interest) shall not exceed the Maximum Term Loan Amount.  (c) Advance Request.  To obtain a Term Loan Advance, Borrower shall complete,  sign and deliver an Advance Request (at least five (5) Business Days before the Advance Date  other than the Closing Date, which shall be at least one (1) Business Day) to Agent.  Lender  shall fund the Term Loan Advance in the manner requested by the Advance Request provided  that each of the conditions precedent to such Term Loan Advance is satisfied as of the  requested Advance Date.  (d) Interest.  (i) Term Loan Cash Interest Rate.  Subject to Borrower’s right to reduce the  Term Loan Cash Interest Rate during any PIK Deferral Period, the outstanding principal  balance (including, for the avoidance of doubt, the amount of accrued and unpaid Term  Loan PIK Interest added to principal pursuant to Section 2.2(d)(iii)) of each Term Loan  Advance shall bear interest thereon from the applicable Advance Date for such Term  Loan Advance (or, with respect to any principal constituting Term Loan PIK Interest,  the date on which such Term Loan PIK Interest is added to principal, as applicable) at  the Term Loan Cash Interest Rate (as may be adjusted from time to time in accordance  with the definition thereof) based on a year consisting of 360 days, with interest  computed daily based on the actual number of days elapsed.  The Term Loan Cash  Interest Rate will float and be determined as of each day in accordance with the  definition thereof.  (ii) Term Loan PIK Interest Rate.  In addition to interest accrued pursuant to  clause (d)(i) of this Section 2.2, during any PIK Deferral Period, the outstanding  principal balance (including, for the avoidance of doubt, the amount of accrued and  unpaid Term Loan PIK Interest added to principal pursuant to Section 2.2(d)(iii)) of  each Term Loan Advance shall bear interest thereon from the applicable Advance Date  for such Term Loan Advance (or, with respect to any principal constituting Term Loan  PIK Interest, the date on which such Term Loan PIK Interest is added to principal, as  applicable) at the Term Loan PIK Interest Rate, based on a year consisting of 360 days,  with interest computed daily based on the actual number of days elapsed (such interest,  the “Term Loan PIK Interest”). On each date on which interest is to be paid as provided  in the first sentence of Section 2.2(d)(iii), the amount of accrued and unpaid Term Loan  PIK Interest with respect to each Term Loan Advance shall, in lieu of payment thereof  in cash, be capitalized and added to the outstanding principal balance of such Term  Loan Advance so as to increase the outstanding principal balance of such Term Loan  Advance, which principal amount shall be payable when the principal amount of the  applicable Term Loan Advance is payable in accordance with Section 2.2(e).  (iii) Borrower may elect, from and after the Third Amendment Effective  Date, from time to time, to reduce the then current Term Loan Cash Interest Rate  applicable to all Term Loan Advances by up to one and one-half of one percent (1.50%)  





 






    17    per annum (the level of such rate reduction so elected by the Borrower with respect to  any period, the “Cash Interest Rate Reduction Level”) for any period (any period during  which such reduction applies, a “PIK Deferral Period”), provided that (w) each PIK  Deferral Period shall commence on the first calendar day of a month and terminate on  the last calendar day of a month, (x) written notice of the commencement of a PIK  Deferral Period shall be delivered to Agent no later than five (5) Business Days prior to  the commencement thereof (or if later, on or prior to an Advance Date occurring on or  prior to the commencement thereof), (y) each PIK Deferral Period shall be in effect for  not less than three (3) consecutive calendar months and shall terminate on the last  calendar day of the month specified in the written notice referred to in the foregoing  clause (x), subject to adjustment as provided in the penultimate sentence of this clause  (iii) and (z) upon expiration of any PIK Deferral Period, the Cash Interest Rate  Reduction Level shall cease to apply to any Term Loan Advance until such time as  another PIK Deferral Period is in effect in accordance with this clause (iii).  Subject to  the foregoing clauses (w) and (y), the Borrower may terminate or extend any PIK  Deferral Period by written notice delivered to Agent not less than five (5) Business  Days prior to any scheduled termination date of a PIK Deferral Period.  Not more than  once in any three (3) consecutive calendar months, the Borrower may, by written notice  to Agent at least five Business Days prior to the first calendar day of any month,  increase or decrease (to an amount not less than zero and not greater than 1.50% per  annum) the Cash Interest Rate Reduction Level to be applicable during any PIK  Deferral Period, from and after the first day of such month.  (e) Payment.  Borrower will pay interest on each Term Loan Advance on the first  (1st) day of each month, beginning the month after the applicable Advance Date for such Term  Loan Advance; provided that interest accruing at the Term Loan PIK Interest Rate shall not be  paid in cash and shall instead be added to the principal of the Term Loan Advance on such  date.   Commencing with the Amortization Date, and continuing on the first Business Day of  each month until the Term Loan Maturity Date Borrower shall repay the aggregate Term Loan  Advances (including any unpaid Term Loan PIK Interest added thereto pursuant to Section  2.3), that is outstanding on the day immediately preceding Amortization Date, in equal monthly  installments of principal and interest (mortgage style), and with such payment being in an  amount sufficient to fully amortize the outstanding Term Loan principal balance over a period  of thirty (30) months; provided that if the Term Loan Cash Interest Rate is adjusted in  accordance with its terms, or the Amortization Date or the Term Loan Maturity Date is  extended, or a PIK Deferral Period becomes effective, the amount of each subsequent monthly  installment shall be recalculated so that the remaining payments shall be equal monthly  installments of principal and interest (mortgage style) and with such payment being in an  amount sufficient to fully amortize the outstanding Term Loan principal balance over a period  of thirty (30) months beginning on the first Business Day of the month following such  recalculation and continuing on the first Business Day of each month thereafter until the  Secured Obligations (other than inchoate indemnity obligations) are repaid in full.  The entire  Term Loan principal balance and all accrued but unpaid interest hereunder, shall be due and  payable on Term Loan Maturity Date.  Borrower shall make all payments under this Agreement  without setoff, recoupment or deduction and regardless of any counterclaim or defense. Lender  





 






    18    will initiate debit entries to the Borrower’s account as authorized on the ACH Authorization (i)  on each payment date of all periodic principal and interest obligations payable to Lender under  each Term Loan Advance (but, prior to an Event of Default that continues, not any fees or out- of-pocket legal fees and costs incurred by Agent or Lender and payable by Borrower as provided  in Section 11.11, which shall be payable promptly upon receipt of invoices therefor) and (ii)  following the occurrence of an Event of Default that continues, all out-of-pocket legal fees and  costs incurred by Agent or Lender in connection with Section 11.11; provided that, with respect  to clause (i) above, in the event that Lender or Agent informs Borrower that Lender will not  initiate a debit entry to Borrower’s account for a certain amount of the periodic principal and  interest obligations due on a specific payment date, Borrower shall pay to Lender such amount  of periodic principal and interest obligations in full in immediately available funds on such  payment date; provided, further, that, with respect to clause (i) above, if Lender or Agent  informs Borrower that Lender will not initiate a debit entry as described above later than the  date that is three (3) Business Days prior to such payment date, Borrower shall pay to Lender  such amount of periodic principal and interest obligations in full in immediately available funds  on the date that is three (3) Business Days after the date on which Lender or Agent notifies  Borrower of such.  Prior to an Event of Default that continues, neither Lender nor Agent will  initiate any debit entry to Borrower’s account for any fees or out-of-pocket legal fees and costs  incurred by Agent or Lender, each of which shall be payable by Borrower promptly upon receipt  of invoices therefor.  2.3 Maximum Interest.  Notwithstanding any provision in this Agreement or any  other Loan Document, it is the parties’ intent not to contract for, charge or receive interest at a  rate that is greater than the maximum rate permissible by law that a court of competent  jurisdiction shall deem applicable hereto (which under the laws of the State of California shall  be deemed to be the laws relating to permissible rates of interest on commercial loans) (the  “Maximum Rate”).  If a court of competent jurisdiction shall finally determine that Borrower  has actually paid to Lender an amount of interest in excess of the amount that would have been  payable if all of the Secured Obligations had at all times borne interest at the Maximum Rate,  then such excess interest actually paid by Borrower shall be applied as follows:  first, to the  payment of the Secured Obligations consisting of the outstanding principal; second, after all  principal is repaid, to the payment of Lender’s accrued interest, costs, expenses, professional  fees and any other Secured Obligations; and third, after all Secured Obligations are repaid, the  excess (if any) shall be refunded to Borrower.    2.4 Default Interest.  Upon the occurrence and during the continuation of an Event of  Default hereunder, all Secured Obligations, including principal, interest, compounded interest,  and professional fees, shall bear interest at a rate per annum equal to the rate set forth in Section  2.2(d), plus three percent (3%) per annum.  In the event any interest is not paid when due  hereunder, delinquent interest shall be added to principal and shall bear interest on interest,  compounded at the rate set forth in Section 2.2(d) or Section 2.4, as applicable.  2.5  Prepayment.    





 






    19    (a) At its option, Borrower may at any time prepay all or a portion of the  outstanding Advances by paying the entire principal balance (or such portion thereof), all  accrued and unpaid interest thereon, together with a prepayment charge equal to the following  percentage of the Advance amount being prepaid: if such Advance amounts are prepaid in any  of the first twelve (12) months following the Third Amendment Effective Date, 2.0%; after  twelve (12) months but prior to March 1, 2021, 1.5%; and thereafter, 0.0% (each, a  “Prepayment Charge”).  Borrower agrees that any Prepayment Charge is a reasonable  calculation of Lender’s lost profits in view of the difficulties and impracticality of determining  actual damages resulting from an early repayment of the Advances.  Borrower shall prepay the  outstanding amount of all principal and accrued interest through the prepayment date and any  Prepayment Charge upon the occurrence of a Change in Control.  Any amounts paid under this  Section shall be applied by Agent to the then unpaid amount of any Secured Obligations  (including principal and interest) in such order and priority as Agent may choose in its sole  discretion; provided that (x) Agent shall endeavor to promptly (within two (2) Business Days of  the date that the Borrower makes any such payment under this Section 2.5(a)) notify Borrower  the manner in which any such payment has been applied and (y) if no Event of Default has  occurred and is continuing and Agent has agreed with Borrower to any application of any such  payment in advance of the making thereof, such agreed application shall be binding for such  payment.  (b) Notwithstanding the foregoing, no Prepayment Charge shall be payable (i) if  Agent and Lender (in its sole and absolute discretion) agree in writing to refinance the Advances  prior to the Term Loan Maturity Date, or (ii) with respect to any prepayment made in  accordance with Section 2.5(a) above in connection with a Merger Event, so long as Borrower  provides Agent with supporting documentation (which may be in redacted form) reasonably  requested by Agent and necessary to verify the occurrence of a Merger Event.  2.6 End of Term Charge.    (a) On the earliest to occur of (i) March 1, 2022, (ii) the date that Borrower prepays  the outstanding Secured Obligations (other than any inchoate indemnity obligations and any  other obligations which, by their terms, are to survive the termination of this Agreement) in  full, or (iii) the date that all the Secured Obligations become due and payable, by acceleration  (including, but not limited to, upon the occurrence of a bankruptcy or insolvency event  (including the acceleration of claims by operation of law) or otherwise, Borrower shall pay  Lender a charge equal to Two Million Six Hundred Twenty Thousand Dollars ($2,620,000).   Notwithstanding the required payment date of such charge, it shall be deemed earned by  Lender as of the Closing Date.  (b) On the earliest to occur of (i) the Term Loan Maturity Date, (ii) the date that  Borrower prepays the outstanding Secured Obligations (other than any inchoate indemnity  obligations and any other obligations which, by their terms, are to survive the termination of  this Agreement) in full, or (iii) the date that all the Secured Obligations become due and  payable, by acceleration (including, but not limited to, upon the occurrence of a bankruptcy or  insolvency event (including the acceleration of claims by operation of law) or otherwise,  





 






    20    Borrower shall pay Lender a charge equal to 7.55% multiplied by the aggregate principal  amount of Term Loans funded under this Agreement (excluding, for the avoidance of doubt,  any Term Loan PIK Interest).  Notwithstanding the required payment date of such charge, it  shall be deemed earned by Lender as of the Third Amendment Effective Date.  2.7 Notes.  If so requested by Lender by written notice to Borrower, then Borrower  shall execute and deliver to Lender (and/or, if applicable and if so specified in such notice, to  any Person who is an assignee of Lender pursuant to Section 11.13) (promptly after the  Borrower’s receipt of such notice) a Note or Notes to evidence Lender’s Loans.  2.8 Pro Rata Treatment.  Each payment (including prepayment) on account of any fee  and any reduction of the Term Loans shall be made pro rata according to the Term Commitments  of the relevant Lender.  2.9 Treatment of Prepayment Charge and End of Term Charge.  Borrower agrees that  any Prepayment Charge and any End of Term Charge payable shall be presumed to be the  liquidated damages sustained by each Lender as the result of the early termination, and  Borrower agrees that it is reasonable under the circumstances currently existing, existing as of  the Closing Date, existing as of the Third Amendment Signing Date, and existing as of the Third  Amendment Effective Date.  Any Prepayment Charge and any End of Term Charge shall also be  payable in the event the Secured 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.  Borrower expressly waives (to the fullest extent it may lawfully do so) the  provisions of any present or future statute or law that prohibits or may prohibit the collection of  the foregoing Prepayment Charge and End of Term Charge in connection with any such  acceleration.  Borrower agrees (to the fullest extent that each may lawfully do so): (a) each  Prepayment Charge and End of Term Charge is reasonable and is the product of an arm’s length  transaction between sophisticated business people, ably represented by counsel; (b) each  Prepayment Charge and End of Term Charge shall be payable notwithstanding the then  prevailing market rates at the time payment is made; (c) there has been a course of conduct  between the Lenders and Borrower giving specific consideration in this transaction for such  agreement to pay any Prepayment Charge and any End of Term Charge as a charge (and not  interest) in the event of prepayment or acceleration; and (d) Borrower shall be estopped from  claiming differently than as agreed to in this paragraph.  Borrower expressly acknowledges that  their agreement to pay each of any Prepayment Charge and any End of Term Charge to the  Lenders as herein described was on the Closing Date and continues to be a material inducement  to the Lenders to provide the Term Loans.  2.10 Investment Unit.  Borrower, Agent and Lenders agree, unless otherwise required  by a change in law, or as required by the Internal Revenue Service or other taxing authority  following an audit or examination, (i) to treat the Loans as indebtedness for U.S. federal income  tax purposes and  (ii) to treat the Loans and the Warrants as having been issued as an  “investment unit” within the meaning of Section 1273(c)(2) of the Internal Revenue Code of  1986, as amended, and, correspondingly, the Loans as having been issued with original issue  discount for U.S. federal income tax purposes to the extent required.  





 






    21    SECTION 3.  SECURITY INTEREST  3.1 As security for the prompt and complete payment when due (whether on the  payment dates or otherwise) of all the Secured Obligations, Borrower grants to Agent a security  interest in all of Borrower’s right, title, and interest in, to and under all of Borrower’s personal  property and other assets including without limitation the following (except as set forth herein)  whether now owned or hereafter acquired (collectively, the “Collateral”):  (a) Receivables; (b)  Equipment; (c) Fixtures; (d) General Intangibles (other than Intellectual Property); (e) Inventory;  (f) Investment Property; (g) Deposit Accounts; (h) Cash; (i) Goods; and all other tangible and  intangible personal property of Borrower whether now or hereafter owned or existing, leased,  consigned by or to, or acquired by, Borrower and wherever located, and any of Borrower’s  property in the possession or under the control of Agent; and, to the extent not otherwise  included, all Proceeds of each of the foregoing and all accessions to, substitutions and  replacements for, and rents, profits and products of each of the foregoing; provided, however,  that the Collateral shall include all Accounts and General Intangibles that consist of rights to  payment and proceeds from the sale, licensing or disposition of all or any part, or rights in, the  Intellectual Property (the “Rights to Payment”).  Notwithstanding the foregoing, if a judicial  authority (including a U.S. Bankruptcy Court) holds that a security interest in the underlying  Intellectual Property is necessary to have a security interest in the Rights to Payment, then the  Collateral shall automatically, and effective as of the date of this Agreement, include the  Intellectual Property to the extent necessary to permit perfection of Agent’s security interest in  the Rights to Payment.  3.2 Notwithstanding the broad grant of the security interest set forth in Section 3.1,  above, the Collateral shall not include (a) more than 65% of the presently existing and hereafter  arising issued and outstanding shares of capital stock owned by Borrower of any Foreign  Subsidiary (other than an Eligible Foreign Subsidiary) which shares entitle the holder thereof to  vote for directors or any other matter and (b) nonassignable licenses or contracts, which by their  terms require the consent of the licensor thereof or another party (but only to the extent such  prohibition on transfer is enforceable under applicable law, including, without limitation,  Sections 9406, 9407 and 9408 of the UCC).  SECTION 4.  CONDITIONS PRECEDENT TO LOAN  The obligations of Lender to make the Loan hereunder are subject to the satisfaction by  Borrower of the following conditions:  4.1 Initial Advance.  On or prior to the Closing Date, Borrower delivered to Agent  the following:  (a) executed copies of the Loan Documents (other than the Warrant issued as of the  Closing Date, which was an an original), Account Control Agreements, a customary legal  opinion of Borrower’s counsel, and all other documents and instruments reasonably required by  Agent to effectuate the transactions contemplated hereby or to create and perfect the Liens of  Agent with respect to all Collateral, in all cases in form and substance reasonably acceptable to  Agent;  





 






    22    (b) certified copy of resolutions of Borrower’s board of directors evidencing  approval of (i) the Loan and other transactions evidenced by the Loan Documents; and (ii) the  Warrant and transactions evidenced thereby;  (c) certified copies of the Certificate of Incorporation and the Bylaws, as amended  through the Closing Date, of Borrower;  (d) a certificate of good standing for Borrower from its state of incorporation and  similar certificates from all other jurisdictions in which it does business and where the failure to  be qualified could have a Material Adverse Effect;  (e) payment of the Closing Date Facility Charge and reimbursement of Agent’s and  Lender’s current expenses reimbursable pursuant to this Agreement, which amounts may be  deducted from the initial Advance;   (f) all certificates of insurance and copies of each insurance policy required  hereunder; and   (g) such other documents as Agent may reasonably request.  4.2 All Advances.  On each Advance Date:  (a) Agent shall have received (i) an Advance Request for the relevant Advance as  required by Section 2.2(c) each duly executed by Borrower’s Chief Executive Officer, Chief  Accounting Officer or Chief Financial Officer, and (ii) any other documents Agent may  reasonably request;  (b) the representations and warranties set forth in this Agreement shall be true and  correct in all material respects on and as of the Advance Date with the same effect as though  made on and as of such date, except to the extent such representations and warranties expressly  relate to an earlier date;  (c) Borrower shall be in compliance with all the terms and provisions set forth  herein and in each other Loan Document on its part to be observed or performed, and at the  time of and immediately after such Advance no Event of Default shall have occurred and be  continuing;  (d) each Advance Request shall be deemed to constitute a representation and  warranty by Borrower on the relevant Advance Date as to the matters specified in  paragraphs (b) and (c) of this Section 4.3 and as to the matters set forth in the Advance  Request;  (e) Borrower and the party identified on the signature pages to each form of  Warrant, as set forth in Exhibit I or Exhibit J, shall have executed a Warrant (x) in connection  with each applicable Term Loan Advance and (y) with respect to the effectiveness of the Third  Amendment, on the Third Amendment Effective Date; provided that: the aggregate amount of  





 






    23    Warrant Coverage (to be specified in the applicable Warrants) with respect to the effectiveness  of the Third Amendment shall be Four Hundred Thousand Dollars ($400,000.00); with respect  to Tranche 1-A and Tranche 1-B, the form of the Warrant and the aggregate amount of Warrant  Coverage (as specified in the applicable Warrant) were in each case as specified in this  Agreement as in effect prior to the Third Amendment Effective Date; the aggregate amount of  Warrant Coverage (to be specified in the applicable Warrants) with respect to Term Loan  Advance under Tranche 1-C shall be Two Hundred Thousand Dollars ($200,000.00); the  aggregate amount of Warrant Coverage (to be specified in the applicable Warrants) with  respect to Term Loan Advance under Tranche 1-D shall be One Hundred Fifty Thousand  Dollars ($150,000.00); and  (f) (i) no fact or condition exists that could (or could, with the passage of time, the  giving of notice, or both) constitute an Event of Default and (ii) no event that has had or could  reasonably be expected to have a Material Adverse Effect has occurred and is continuing.  SECTION 5.  REPRESENTATIONS AND WARRANTIES OF  BORROWER  Borrower represents and warrants that:  5.1 Corporate Status.  Borrower is a corporation duly organized, legally existing and  in good standing under the laws of the State of Delaware, and is duly qualified as a foreign  corporation in all jurisdictions in which the nature of its business or location of its properties  require such qualifications and where the failure to be qualified could reasonably be expected to  have a Material Adverse Effect.  Borrower’s present name, former names (if any), locations,  place of formation, tax identification number, organizational identification number and other  information are correctly set forth in Exhibit C, as may be updated by Borrower in a written  notice (including any Compliance Certificate) provided to Agent after the Third Amendment  Effective.   5.2 Collateral.  Borrower owns the Collateral and the Intellectual Property, free of all  Liens, except for Permitted Liens.  Borrower has the power and authority to grant to Agent a Lien  in the Collateral as security for the Secured Obligations.    5.3 Consents.  Borrower’s execution, delivery and performance of this Agreement  and all other Loan Documents, and Borrower’s execution of the Warrant, (i) have been duly  authorized by all necessary corporate action of Borrower, (ii) will not result in the creation or  imposition of any Lien upon the Collateral, other than Permitted Liens and the Liens created by  this Agreement and the other Loan Documents, (iii) do not violate any provisions of Borrower’s  Certificate of Incorporation, bylaws, or any, law, regulation, order, injunction, judgment, decree  or writ to which Borrower is subject and (iv) except as described on Schedule 5.3, do not violate  any contract or agreement or require the consent or approval of any other Person which has not  already been obtained.  The individual or individuals executing the Loan Documents and the  Warrant are duly authorized to do so.  





 






    24    5.4 Material Adverse Effect.  No event that has had or could reasonably be expected  to have a Material Adverse Effect has occurred and is continuing.  5.5 Actions Before Governmental Authorities.  There are no actions, suits or  proceedings at law or in equity or by or before any governmental authority now pending or, to  the knowledge of Borrower, threatened against or affecting Borrower or its property, that is  reasonably expected to result in a Material Adverse Effect.   5.6 Laws.  Neither Borrower nor any of its Subsidiaries is in violation of any law,  rule or regulation, or in default with respect to any judgment, writ, injunction or decree of any  governmental authority, where such violation or default is reasonably expected to result in a  Material Adverse Effect.  Borrower is not in default in any manner under any provision of any  agreement or instrument evidencing material Indebtedness, or any other material agreement to  which it is a party or by which it is bound.    Neither Borrower nor any of its Subsidiaries is an “investment company” or a company  “controlled” by an “investment company” under the Investment Company Act of 1940, as  amended.  Neither Borrower nor any of its Subsidiaries is engaged as one of its important  activities in extending credit for margin stock (under Regulations X, T and U of the Federal  Reserve Board of Governors).  Borrower and each of its Subsidiaries has complied in all material  respects with the Federal Fair Labor Standards Act.  Neither Borrower nor any of its Subsidiaries  is a “holding company” or an “affiliate” of a “holding company” or a “subsidiary company” of a  “holding company” as each term is defined and used in the Public Utility Holding Company Act  of 2005.  Neither Borrower’s nor any of its Subsidiaries’ properties or assets has been used by  Borrower or such Subsidiary or, to Borrower’s knowledge, by previous Persons, in disposing,  producing, storing, treating, or transporting any hazardous substance other than in material  compliance with applicable laws.  Borrower and each of its Subsidiaries has obtained all  consents, approvals and authorizations of, made all declarations or filings with, and given all  notices to, all governmental authorities that are necessary to continue their respective businesses  as currently conducted.  None of Borrower, any of its Subsidiaries, or any of Borrower’s or its Subsidiaries’  Affiliates or any of their respective agents acting or benefiting in any capacity in connection with  the transactions contemplated by this Agreement is (i) in violation of any Anti-Terrorism Law,  (ii) engaging in or conspiring to engage in any transaction that evades or avoids, or has the  purpose of evading or avoiding or attempts to violate, any of the prohibitions set forth in any  Anti-Terrorism Law, or (iii) is a Blocked Person.  None of Borrower, any of its Subsidiaries, or  to the knowledge of Borrower and any of their Affiliates or agents, acting or benefiting in any  capacity in connection with the transactions contemplated by this Agreement, (x) conducts any  business or engages in making or receiving any contribution of funds, goods or services to or for  the benefit of any Blocked Person, or (y) deals in, or otherwise engages in any transaction  relating to, any property or interest in property blocked pursuant to Executive Order No. 13224,  any similar executive order or other Anti-Terrorism Law.  None of the funds to be provided  under this Agreement will be used, directly or indirectly, (a) for any activities in violation of any  applicable anti-money laundering, economic sanctions and anti-bribery laws and regulations laws  





 






    25    and regulations or (b) for any payment to any governmental official or employee, political party,  official of a political party, candidate for political office, or anyone else acting in an official  capacity, in order to obtain, retain or direct business or obtain any improper advantage, in  violation of the United States Foreign Corrupt Practices Act of 1977, as amended.  5.7 Information Correct and Current.  No information, report, Advance Request,  financial statement, exhibit or schedule furnished, by or on behalf of Borrower to Agent in  connection with any Loan Document or included therein or delivered pursuant thereto  contained, or, when taken as a whole, contains or will contain any material misstatement of fact  or, when taken together with all other such information or documents, omitted, omits or will  omit to state any material fact necessary to make the statements therein, in the light of the  circumstances under which they were, are or will be made, not materially misleading at the time  such statement was made or deemed made. Additionally, any and all financial or business  projections provided by Borrower to Agent, whether prior to or after the Closing Date, shall be  (i) provided in good faith and based on the most current data and information available to  Borrower, and (ii) the most current of such projections provided to Borrower’s board of  directors.   5.8 Tax Matters.  Except as described on Schedule 5.8 and except those being  contested in good faith with adequate reserves under GAAP, (a) Borrower has filed all material  federal, state and local tax returns that it is required to file, (b) Borrower has duly paid or fully  reserved for all taxes or installments thereof (including any interest or penalties) as and when  due, which have or may become due pursuant to such returns, and (c) Borrower has paid or fully  reserved for any tax assessment received by Borrower for the three (3) years preceding the  Closing Date, if any (including any taxes being contested in good faith and by appropriate  proceedings).  5.9 Intellectual Property Claims.  Borrower is the sole owner of, or otherwise has the  right to use, the Intellectual Property material to Borrower’s business.  Except as described on  Schedule 5.9, (i) to Borrower’s knowledge, each of the material Copyrights, Trademarks and  Patents is valid and enforceable, (ii) no material part of the Intellectual Property has been judged  invalid or unenforceable, in whole or in part, and (iii) no claim has been made to Borrower that  any material part of the Intellectual Property violates the rights of any third party. Attached to  the perfection certificate delivered to Agent on the Third Amendment Effective Date is a true,  correct and complete list of each of Borrower’s published Patents, registered Trademarks,  registered Copyrights, and material agreements under which Borrower licenses Intellectual  Property from third parties (other than shrink-wrap software licenses), together with application  or registration numbers, as applicable, owned by Borrower or any Subsidiary, in each case as of  the Third Amendment Effective Date. Borrower is not in material breach of, nor has Borrower  failed to perform any material obligations under, any of the foregoing contracts, licenses or  agreements and, to Borrower’s knowledge, no third party to any such contract, license or  agreement is in material breach thereof or has failed to perform any material obligations  thereunder.    





 






    26    5.10 Intellectual Property.  Except as described on Schedule 5.10, Borrower has all  material rights with respect to Intellectual Property necessary or material in the operation or  conduct of Borrower’s business as currently conducted and proposed to be conducted by  Borrower.  Without limiting the generality of the foregoing, and in the case of Licenses, except  for restrictions that are unenforceable under Division 9 of the UCC, Borrower has the right, to  the extent required to operate Borrower’s business, to freely transfer, license or assign  Intellectual Property necessary or material in the operation or conduct of Borrower’s business as  currently conducted and proposed to be conducted by Borrower, without condition, restriction or  payment of any kind (other than license payments in the ordinary course of business) to any  third party, and Borrower owns or has the right to use, pursuant to valid licenses, all software  development tools, library functions, compilers and all other third-party software and other  items that are material to Borrower’s business and used in the design, development, promotion,  sale, license, manufacture, import, export, use or distribution of Borrower Products except  customary covenants in inbound license agreements and equipment leases where Borrower is the  licensee or lessee.    5.11 Borrower Products.  Except as described on Schedule 5.11, no Intellectual  Property owned by Borrower or Borrower Product has been or is subject to any actual or, to the  knowledge of Borrower, threatened litigation, proceeding (including any proceeding in the  United States Patent and Trademark Office or any corresponding foreign office or agency) or  outstanding decree, order, judgment, settlement agreement or stipulation that restricts in any  manner Borrower’s use, transfer or licensing thereof or that may affect the validity, use or  enforceability thereof. There is no decree, order, judgment, agreement, stipulation, arbitral  award or other provision entered into in connection with any litigation or proceeding that  obligates Borrower to grant licenses or ownership interest in any future Intellectual Property  related to the operation or conduct of the business of Borrower or Borrower Products.  Borrower  has not received any written notice or claim, or, to the knowledge of Borrower, oral notice or  claim, challenging or questioning Borrower’s ownership in any Intellectual Property (or written  notice of any claim challenging or questioning the ownership in any licensed Intellectual  Property of the owner thereof) or suggesting that any third party has any claim of legal or  beneficial ownership with respect thereto nor, to Borrower’s knowledge, is there a reasonable  basis for any such claim.  Neither Borrower’s use of its Intellectual Property nor the production  and sale of Borrower Products infringes the Intellectual Property or other rights of others.   5.12 Financial Accounts.  Exhibit E, as may be updated by the Borrower in a written  notice provided to Agent after the Third Amendment Effective Date, is a true, correct and  complete list of (a) all banks and other financial institutions at which Borrower or any  Subsidiary maintains Deposit Accounts and (b) all institutions at which Borrower or any  Subsidiary maintains an account holding Investment Property, and such exhibit correctly  identifies the name, address and telephone number of each bank or other institution, the name in  which the account is held, a description of the purpose of the account, and the complete account  number therefor.  





 






    27    5.13 Employee Loans.  Borrower has no outstanding loans to any employee, officer or  director of the Borrower nor has Borrower guaranteed the payment of any loan made to an  employee, officer or director of the Borrower by a third party.  5.14 Capitalization and Subsidiaries.  Borrower does not own any stock, partnership  interest or other securities of any Person, except for Permitted Investments.  Attached as  Schedule 5.14, as may be updated by Borrower in a written notice provided after the Third  Amendment Effective Date, is a true, correct and complete list of each Subsidiary.  SECTION 6.  INSURANCE; INDEMNIFICATION  6.1 Coverage.  Borrower shall cause to be carried and maintained commercial  general liability insurance, on an occurrence form, against risks customarily insured against in  Borrower’s line of business.  Such risks shall include the risks of bodily injury, including death,  property damage, personal injury, advertising injury, and contractual liability per the terms of  the indemnification agreement found in Section 6.3.  Borrower must maintain a minimum of  $2,000,000 of commercial general liability insurance for each occurrence.  Borrower has and  agrees to maintain a minimum of $2,000,000 of directors’ and officers’ insurance for each  occurrence and $5,000,000 in the aggregate.  So long as there are any Secured Obligations  outstanding, Borrower shall also cause to be carried and maintained insurance upon the  Collateral, insuring against all risks of physical loss or damage howsoever caused, in an amount  not less than the full replacement cost of the Collateral, provided that such insurance may be  subject to standard exceptions and deductibles.    6.2 Certificates.  Borrower shall deliver to Agent certificates of insurance that  evidence Borrower’s compliance with its insurance obligations in Section 6.1 and the  obligations contained in this Section 6.2.  Borrower’s insurance certificate shall state Agent  (shown as “Hercules Capital, Inc., as Agent”) is an additional insured for commercial general  liability, a loss payee for all risk property damage insurance, subject to the insurer’s approval,  and a loss payee for property insurance and additional insured for liability insurance for any  future insurance that Borrower may acquire from such insurer.  Attached to the certificates of  insurance will be additional insured endorsements for liability and lender’s loss payable  endorsements for all risk property damage insurance.  All certificates of insurance will provide  for a minimum of thirty (30) days advance written notice to Agent of cancellation (other than  cancellation for non-payment of premiums, for which ten (10) days’ advance written notice shall  be sufficient) or any other change adverse to Agent’s interests.  Any failure of Agent to  scrutinize such insurance certificates for compliance is not a waiver of any of Agent’s rights, all  of which are reserved.  Borrower shall provide Agent with copies of each insurance policy, and  upon entering or amending any insurance policy required hereunder, Borrower shall provide  Agent with copies of such policies and shall promptly deliver to Agent updated insurance  certificates with respect to such policies.  6.3 Indemnity.  Borrower agrees to indemnify and hold Agent, Lender and their  officers, directors, employees, agents, in-house attorneys, representatives and shareholders  (each, an “Indemnified Person”) harmless from and against any and all claims, costs, expenses,  





 






    28    damages and liabilities (including such claims, costs, expenses, damages and liabilities based on  liability in tort, including strict liability in tort), including reasonable attorneys’ fees and  disbursements and other costs of investigation or defense (including those incurred upon any  appeal) (collectively, “Liabilities”), that may be instituted or asserted against or incurred by such  Indemnified Person as the result of credit having been extended, suspended or terminated under  this Agreement and the other Loan Documents or the administration of such credit, or in  connection with or arising out of the transactions contemplated hereunder and thereunder, or any  actions or failures to act in connection therewith, or arising out of the disposition or utilization  of the Collateral, excluding in all cases Liabilities to the extent resulting from any Indemnified  Person’s gross negligence or willful misconduct. Borrower agrees to pay, and to save Agent and  Lender harmless from, any and all liabilities with respect to, or resulting from any delay in  paying, any and all excise, sales or other similar taxes (excluding taxes imposed on or measured  by the net income of Agent or Lender) that may be payable or determined to be payable with  respect to any of the Collateral or this Agreement.  In no event shall any Indemnified Person be  liable on any theory of liability for any special, indirect, consequential or punitive damages  (including any loss of profits, business or anticipated savings). This Section 6.3 shall survive the  repayment of indebtedness under, and otherwise shall survive the expiration or other termination  of, the Loan Agreement.  SECTION 7.  COVENANTS OF BORROWER  Borrower agrees as follows:  7.1 Financial Reports.  Borrower shall furnish to Agent the financial statements and  reports listed hereinafter (the “Financial Statements”):  (a) If the Borrower’s Market Capitalization is less than Three Hundred Million  Dollars ($300,000,000) as of the last day of any calendar month, as soon as practicable (and in  any event within 30 days) after the end of such month, unaudited interim and year-to-date  financial statements as of the end of such month (prepared on a consolidated and consolidating  basis, if applicable), including balance sheet and related statements of income and cash flows  accompanied by a report detailing any material contingencies (including the commencement of  any material litigation by or against Borrower) or any other occurrence that could reasonably be  expected to have a Material Adverse Effect, all certified by Borrower’s Chief Executive  Officer, Chief Accounting Officer or Chief Financial Officer to the effect that they have been  prepared in accordance with GAAP, except (i) for the absence of footnotes, (ii) that they are  subject to normal year end adjustments, and (iii) they do not contain certain non-cash items that  are customarily included in quarterly and annual financial statements;   (b) as soon as practicable (and in any event within 45 days) after the end of each of  the first three fiscal quarters, unaudited interim and year-to-date financial statements as of the  end of such fiscal quarter (prepared on a consolidated and consolidating basis, if applicable),  including balance sheet and related statements of income and cash flows accompanied by a  report detailing any material contingencies (including the commencement of any material  litigation by or against Borrower) or any other occurrence that could reasonably be expected to  





 






    29    have a Material Adverse Effect, certified by Borrower’s Chief Executive Officer, Chief  Accounting Officer or Chief Financial Officer to the effect that they have been prepared in  accordance with GAAP, except (i) for the absence of footnotes, and (ii) that they are subject to  normal year end adjustments; as well as the most recent capitalization table for Borrower,  including the weighted average exercise price of employee stock options;  (c) as soon as practicable (and in any event within ninety (90) days) after the end of  each fiscal year, unqualified audited financial statements as of the end of such year (prepared  on a consolidated and consolidating basis, if applicable), including balance sheet and related  statements of income and cash flows, and setting forth in comparative form the corresponding  figures for the preceding fiscal year, certified by a firm of independent certified public  accountants selected by Borrower and reasonably acceptable to Agent, accompanied by any  management report from such accountants;   (d)  concurrently with the delivery of each of the Financial Statements required to  be delivered pursuant to clauses (b) and (c) of this Section 7.1, a Compliance Certificate in the  form of Exhibit F;  (e) as soon as practicable (and in any event within 15 days) after the end of each  period for which Financial Statements are required to be delivered pursuant to clause (a) or (b)  of this Section 7.1, a report showing agings of accounts receivable and accounts payable;  (f) promptly after the sending or filing thereof, as the case may be, copies of any  proxy statements, financial statements or reports that Borrower has made available to holders of  its preferred stock and copies of any regular, periodic and special reports or registration  statements that Borrower files with the Securities and Exchange Commission or any  governmental authority that may be substituted therefor, or any national securities exchange;  (g) [reserved];   (h) financial and business projections promptly following their approval by  Borrower’s board of directors, and in any event, within 30 days after the end of Borrower’s  fiscal year, as well as budgets, operating plans and other financial information reasonably  requested by Agent; and  (i) immediate notice if Borrower or any Subsidiary has knowledge that Borrower,  or any Subsidiary or Affiliate of Borrower, is listed on the OFAC Lists or (a) is convicted on,  (b) pleads nolo contendere to, (c) is indicted on, or (d) is arraigned and held over on charges  involving money laundering or predicate crimes to money laundering.    Borrower shall not make any change in its (a) accounting policies or reporting practices, or (b)  fiscal years or fiscal quarters. The fiscal year of Borrower shall end on December 31.   The executed Compliance Certificate may be sent via email to Agent at legal@herculestech.com.   All Financial Statements required to be delivered pursuant to clauses (a), (b) and (c) shall be sent  via e-mail to financialstatements@herculestech.com with a copy to legal@herculestech.com  





 






    30    provided, that if e-mail is not available or sending such Financial Statements via e-mail is not  possible, they shall be faxed to Agent at: (650) 473-9194, attention Account Manager: Tricida,  Inc.   Notwithstanding the foregoing, documents required to be delivered under Sections 7.1(a), (b), (c)  or (f) (to the extent any such documents are included in materials otherwise filed with the SEC)  may be delivered electronically and if so delivered, shall be deemed to have been delivered on the  date on which Borrower emails a link thereto to Agent.  7.2 Management Rights.  Borrower shall permit any representative that Agent or  Lender authorizes, including its attorneys and accountants, to inspect the Collateral and examine  and make copies and abstracts of the books of account and records of Borrower at reasonable  times and upon reasonable notice during normal business hours; provided, however, that so long  as no Event of Default has occurred and is continuing, such examinations shall be limited to no  more often than twice per fiscal year.  In addition, any such representative shall have the right to  meet with management and officers of Borrower to discuss such books of account and records  as a part of such examinations.  In addition, Agent or Lender shall be entitled at reasonable  times and intervals to consult with and advise the management and officers of Borrower  concerning significant business issues affecting Borrower.  Such consultations shall not  unreasonably interfere with Borrower’s business operations.  The parties intend that the rights  granted Agent and Lender shall constitute “management rights” within the meaning of 29 C.F.R.  Section 2510.3-101(d)(3)(ii), but that any advice, recommendations or participation by Agent or  Lender with respect to any business issues shall not be deemed to give Agent or Lender, nor be  deemed an exercise by Agent or Lender of, control over Borrower’s management or policies.   7.3 Further Assurances.  Borrower shall from time to time execute, deliver and file,  alone or with Agent, any financing statements, security agreements, collateral assignments,  notices, control agreements, or other documents to perfect or give the highest priority to Agent’s  Lien on the Collateral.  Borrower shall from time to time procure any instruments or documents  as may be reasonably requested by Agent, and take all further action that may be necessary, or  that Agent may reasonably request, to perfect and protect the Liens granted hereby and thereby.   In addition, and for such purposes only, Borrower hereby authorizes Agent to execute and  deliver on behalf of Borrower and to file such financing statements, collateral assignments,  notices, control agreements, security agreements and other documents without the signature of  Borrower either in Agent’s name or in the name of Agent as agent and attorney-in-fact for  Borrower.  Borrower shall protect and defend Borrower’s title to the Collateral and Agent’s Lien  thereon against all Persons claiming any interest adverse to Borrower or Agent other than  Permitted Liens.    7.4 Indebtedness.  Borrower shall not create, incur, assume, guarantee or be or  remain liable with respect to any Indebtedness, or permit any Subsidiary so to do, other than  Permitted Indebtedness, or prepay any Indebtedness or take any actions which impose on  Borrower an obligation to prepay any Indebtedness, except for (a) the conversion of  Indebtedness into equity securities and the payment of cash in lieu of fractional shares in  connection with such conversion, (b) purchase money Indebtedness pursuant to its then  applicable payment schedule, (c) prepayment by any Subsidiary of (i) inter-company  





 






    31    Indebtedness owed by such Subsidiary to any Borrower, or (ii) if such Subsidiary is not a  Borrower, intercompany Indebtedness owed by such Subsidiary to another Subsidiary that is not  a Borrower or (d) as otherwise permitted hereunder or approved in writing by Agent.   Notwithstanding anything to the contrary in the foregoing, the issuance of,  performance of obligations under (including any payments of interest), and conversion,  exercise, repurchase, redemption (including, for the avoidance of doubt, any required  repurchase in connection with the redemption of Permitted Convertible Indebtedness upon  satisfaction of any condition related to the stock price of Borrower’s Common Stock),  settlement or early termination or cancellation of (whether in whole or in part and including by  netting or set-off) (in each case, whether in cash, Common Stock of Borrower or, following a  Merger Event or other change of the Common Stock of Borrower, other securities or property),  or the satisfaction of any condition that would permit or require any of the foregoing with  respect to, any Permitted Convertible Indebtedness, shall not constitute a prepayment of  Indebtedness by Borrower for the purposes of this Section 7.4; provided that principal  payments in cash (other than cash in lieu of fractional shares) shall only be allowed with  respect to any repurchase in connection with the redemption of Permitted Convertible  Indebtedness upon satisfaction of any condition related to the stock price of Borrower’s  Common Stock if the Redemption Conditions are satisfied in respect of such redemption and at  all times after such redemption.  7.5 Collateral.  Borrower shall at all times keep the Collateral, the Intellectual  Property and all other property and assets used in Borrower’s business or in which Borrower now  or hereafter holds any interest free and clear from any legal process or Liens whatsoever (except  for Permitted Liens), and shall give Agent prompt written notice of any legal process affecting  the Collateral, the Intellectual Property, such other property and assets, or any Liens thereon,  provided however, that the Collateral and such other property and assets may be subject to  Permitted Liens except that there shall be no Liens whatsoever on Intellectual Property.   Borrower shall not agree with any Person other than Agent or Lender not to encumber its  property. Borrower shall not enter into or suffer to exist or become effective any agreement that  prohibits or limits the ability of any Borrower to create, incur, assume or suffer to exist any Lien  upon any of its Intellectual Property, whether now owned or hereafter acquired, to secure its  obligations under the Loan Documents to which it is a party other than (a) this Agreement and  the other Loan Documents, (b) any agreements governing any purchase money Liens or capital  lease obligations otherwise permitted hereby (in which case, any prohibition or limitation shall  only be effective against the assets financed thereby) and (c) customary restrictions on the  assignment of leases, licenses and other agreements. Borrower shall cause its Subsidiaries to  protect and defend such Subsidiary’s title to its assets from and against all Persons claiming any  interest adverse to such Subsidiary, and Borrower shall cause its Subsidiaries at all times to keep  such Subsidiary’s property and assets free and clear from any legal process or Liens whatsoever  (except for Permitted Liens, provided however, that there shall be no Liens whatsoever on  Intellectual Property), and shall give Agent prompt written notice of any legal process affecting  such Subsidiary’s assets.   





 






    32    7.6 Investments.  Borrower shall not directly or indirectly acquire or own, or make  any Investment in or to any Person, or permit any of its Subsidiaries so to do, other than  Permitted Investments.   Notwithstanding the foregoing, and for the avoidance of doubt, this Section 7.6  shall not prohibit the conversion by holders of (including any cash payment upon conversion),  or required payment of any principal or premium on (including, for the avoidance of doubt, in  respect of a required repurchase in connection with the redemption of Permitted Convertible  Indebtedness upon satisfaction of any condition related to the stock price of Borrower’s  Common Stock) or required payment of any interest with respect to, any Permitted Convertible  Indebtedness in each case, in accordance with the terms of the indenture or other instrument  governing such Permitted Convertible Indebtedness; provided that principal payments in cash  (other than cash in lieu of fractional shares) shall only be allowed with respect to any repurchase  in connection with the redemption of Permitted Convertible Indebtedness upon satisfaction of  any condition related to the stock price of Borrower’s Common Stock if the Redemption  Conditions are satisfied in respect of such redemption and at all times after such redemption.  7.7 Distributions.  Borrower shall not, and shall not allow any Subsidiary to, (a)  repurchase or redeem any class of stock or other Equity Interest other than pursuant to  employee, director or consultant repurchase plans or other similar agreements, provided,  however, in each case the repurchase or redemption price does not exceed the original  consideration paid for such stock or Equity Interest, or (b) declare or pay any cash dividend or  make a cash distribution on any class of stock or other Equity Interest, except that a Subsidiary  may pay dividends or make distributions to Borrower, or (c) lend money to any employees,  officers or directors or guarantee the payment of any such loans granted by a third party in  excess of $2,000,000 in the aggregate or (d) waive, release or forgive any Indebtedness owed by  any employees, officers or directors in excess of $2,000,000 in the aggregate.   Notwithstanding the foregoing, and for the avoidance of doubt, this Section 7.7  shall not prohibit the conversion by holders of (including any cash payment upon  conversion), or required payment of any principal or premium on (including, for the  avoidance of doubt, in respect of a required repurchase in connection with the  redemption of Permitted Convertible Indebtedness upon satisfaction of any condition  related to the stock price of Borrower’s Common Stock) or required payment of any  interest with respect to, any Permitted Convertible Indebtedness, in each case in  accordance with the terms of the indenture or other instrument governing such Permitted  Convertible Indebtedness.  7.8 Transfers.  Except for Permitted Transfers, Borrower shall not, and shall not  allow any Subsidiary to, voluntarily or involuntarily transfer, sell, lease, license, lend or in any  other manner convey any equitable, beneficial or legal interest in any material portion of its  assets.  7.9 Mergers or Acquisitions.  Borrower shall not merge or consolidate, or permit any  of its Subsidiaries to merge or consolidate, with or into any other business organization (other  





 






    33    than mergers or consolidations of (a) a Subsidiary which is not a Borrower into another  Subsidiary or into Borrower or (b) a Borrower into another Borrower), or acquire, or permit any  of its Subsidiaries to acquire, all or substantially all of the capital stock or property of another  Person, other than Permitted Acquisitions.  7.10 Taxes.  Borrower and its Subsidiaries shall pay when due all material taxes, fees  or other charges of any nature whatsoever (together with any related interest or penalties) now  or hereafter imposed or assessed against Borrower, Agent, Lender or the Collateral or upon  Borrower’s ownership, possession, use, operation or disposition thereof or upon Borrower’s  rents, receipts or earnings arising therefrom.  Borrower shall file on or before the due date  therefor all personal property tax returns in respect of the Collateral.  Notwithstanding the  foregoing, Borrower may contest, in good faith and by appropriate proceedings, taxes for which  Borrower maintains adequate reserves therefor in accordance with GAAP.  7.11 Corporate Changes.  Neither Borrower nor any Subsidiary shall change its  corporate name, legal form or jurisdiction of formation without twenty (20) days’ prior written  notice to Agent.  Neither Borrower nor any Subsidiary shall suffer a Change in Control. Neither  Borrower nor any Subsidiary shall relocate its chief executive office or its principal place of  business unless: (i) it has provided prior written notice to Agent; and (ii) such relocation shall be  within the continental United States of America.  Neither Borrower nor any Qualified Subsidiary  shall relocate any item of Collateral (other than (w) relocation of Inventory and materials used in  the production of Inventory, in each case in connection with the production, marketing,  manufacturing, testing, distribution, packaging, development or sale of TRC101 in the ordinary  course of business, (x) sales of Inventory in the ordinary course of business, (y) relocations of  Collateral having an aggregate value of up to $2,500,000 in any fiscal year, and (z) relocations  of Collateral from a location described on Exhibit C to another location described on Exhibit C)  unless (i) it has provided prompt written notice to Agent, (ii) such relocation is within the  continental United States of America and, (iii) if such relocation is to a third party bailee, it has  delivered a bailee agreement in form and substance reasonably acceptable to Agent.  7.12 Deposit Accounts.  Other than Excluded Accounts, neither Borrower nor any  Qualified Subsidiary shall maintain any Deposit Accounts, or accounts holding Investment  Property, except with respect to which Agent has an Account Control Agreement.  7.13 Borrower shall notify Agent of each Domestic Subsidiary formed subsequent to  the Third Amendment Effective Date and, within 15 days of formation, shall cause any such  Qualified Subsidiary to execute and deliver to Agent a Joinder Agreement.  7.14 [Reserved].  7.15 Notification of Event of Default.  Borrower shall notify Agent immediately of the  occurrence of any Event of Default.  7.16 Agent and Lender have received a license from the U.S. Small Business  Administration (“SBA”) to extend loans as a small business investment company (“SBIC”)  pursuant to the Small Business Investment Act of 1958, as amended, and the associated  





 






    34    regulations (collectively, the “SBIC Act”).  Portions of the loan to Borrower will be made under  the SBA license and the SBIC Act.  Addendum 1 to this Agreement outlines various  responsibilities of Agent, Lender and Borrower associated with an SBA loan, and such  Addendum 1 is hereby incorporated in this Agreement.  7.17 Use of Proceeds.  Borrower agrees that the proceeds of the Loans shall be used  solely to pay related fees and expenses in connection with this Agreement and for working  capital and general corporate purposes.  The proceeds of the Loans will not be used in violation  of Anti-Corruption Laws or applicable Sanctions.  7.18 Foreign Subsidiary Voting Rights. Borrower shall not, and shall not permit any  Subsidiary, to amend or modify any governing document of any Foreign Subsidiary of Borrower  (other than an Eligible Foreign Subsidiary) the effect of which is to require a vote of greater than  50.1% of the Equity Interests or voting rights of such entity for any decision or action of such  entity.  7.19 [Reserved].  7.20 Compliance with Laws.  Borrower shall maintain, and shall cause its Subsidiaries to maintain, compliance  in all material respect with all applicable laws, rules or regulations (including any law, rule or  regulation with respect to the making or brokering of loans or financial accommodations), and  shall, or cause its Subsidiaries to, obtain and maintain all required governmental authorizations,  approvals, licenses, franchises, permits or registrations reasonably necessary in connection with  the conduct of Borrower’s business.  Neither Borrower nor any of its Subsidiaries shall, nor shall Borrower or any of  its Subsidiaries permit any Affiliate to, directly or indirectly, knowingly enter into any  documents, instruments, agreements or contracts with any Person listed on the OFAC Lists.   Neither Borrower nor any of its Subsidiaries shall, nor shall Borrower or any of its Subsidiaries,  permit any Affiliate to, directly or indirectly, (i) conduct any business or engage in any  transaction or dealing with any Blocked Person, including, without limitation, the making or  receiving of any contribution of funds, goods or services to or for the benefit of any Blocked  Person, (ii) deal in, or otherwise engage in any transaction relating to, any property or interests in  property blocked pursuant to Executive Order No. 13224 or any similar executive order or other  Anti-Terrorism Law, or (iii) engage in or conspire to engage in any transaction that evades or  avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the prohibitions  set forth in Executive Order No. 13224 or other Anti-Terrorism Law.  Borrower has implemented and maintains in effect policies and procedures  designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors,  officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and  Borrower, its Subsidiaries and their respective officers and employees and to the knowledge of  Borrower its directors and agents, are in compliance with Anti-Corruption Laws and applicable  Sanctions in all material respects.  





 






    35    None of Borrower, any of its Subsidiaries or any of their respective directors,  officers or employees, or to the knowledge of Borrower, any agent for Borrower or its  Subsidiaries that will act in any capacity in connection with or benefit from the credit facility  established hereby, is a Sanctioned Person.  No Loan, use of proceeds or other transaction  contemplated by this Agreement will violate Anti-Corruption Laws or applicable Sanctions.  7.21 Financial Covenants.  (a) Minimum Cash.     (i) Beginning on the Sixth Amendment Effective Date, Borrower shall at all  times maintain Unrestricted Cash in an amount equal to 100% of the outstanding  principal amount of the Term Loan Advances; provided that notwithstanding the  foregoing, from and after achievement of statistically significant positive data from  Interim Analysis of the ongoing VALOR trial, which, along with an acceptable safety  profile, would support re-filing of the NDA for TRC101 (a/k/a Veverimer) with the  FDA, subject to verification by Agent (including supporting documentation requested by  Agent), Borrower shall only be required to maintain at all times Unrestricted Cash in an  amount greater than or equal to 75% of the outstanding principal amount of the Term  Loan Advances; provided further that this Section 7.21(a)(i) shall cease to apply from  and after achievement of the Approval Milestone.   (ii)  From and after any date on which Borrower takes any action that is  permitted, pursuant to Section 7.4 or 7.6, only if the Redemption Conditions are  satisfied, the Borrower shall maintain Unrestricted Cash in an amount necessary to  cause clause (b) of the defined term “Redemption Conditions” to remain satisfied.  7.22 Transactions with Affiliates.  Borrower shall not and shall not permit any  Subsidiary to, directly or indirectly, enter into or permit to exist any transaction of any kind with  any Affiliate of Borrower or such Subsidiary on terms that are less favorable to Borrower or  such Subsidiary, as the case may be, than those that might be obtained in an arm’s length  transaction from a Person who is not an Affiliate of Borrower or such Subsidiary.    SECTION 8.  SUBSEQUENT FINANCINGS  8.1 If Borrower intends to consummate any public offering of its securities pursuant  to a registration statement filed with the Securities and Exchange Commission on Form S-1 or  Form S-3 after the Third Amendment Effective Date (each, a “Public Offering”), the Borrower  will, in the case of the first such Public Offering after the Third Amendment Effective Date,  consider, in good faith, whether to ask the managing underwriter(s) of such Public Offering to  designate for offer to the Agent (or an Affiliate designed by Agent and reasonably acceptable to  Borrower) a number of shares equal to $2,000,000 (under a “directed shares” program or  otherwise) in such Public Offering, on terms and conditions equivalent to those generally made  available to investors that are unaffiliated with Borrower.  This Section 8.1, and all rights and  obligations hereunder, shall survive the repayment of indebtedness under, and otherwise shall  





 






    36    survive the expiration or other termination of, the Loan Agreement until the termination of all  Warrants in accordance with the terms therein.  SECTION 9.  EVENTS OF DEFAULT  The occurrence of any one or more of the following events shall be an Event of Default:  9.1 Payments.  Borrower fails to pay principal or interest on the due date therefor, or  any other amount due under this Agreement or any of the other Loan Documents within three  (3) Business Days of when due; provided, however, that an Event of Default shall not occur on  account of a failure to pay when due solely to an administrative or operational error of Agent or  Lender or Borrower’s bank if Borrower had the funds to make the payment when due and makes  the payment within three (3) Business Days following Borrower’s knowledge of such failure to  pay; or  9.2 Covenants.  Borrower breaches or defaults in the performance of any covenant or  Secured Obligation under this Agreement, or any of the other Loan Documents or any other  agreement among Borrower, Agent and Lender, and (a) with respect to a default under any  covenant under this Agreement (other than under Sections 6, 7.4, 7.5, 7.6, 7.7, 7.8, 7.9, 7.15,  7.16, 7.17, 7.18, 7.20, 7.21 and 7.22) any other Loan Document or any other agreement among  Borrower, Agent and Lender, such default continues for more than fifteen (15) Business Days  after the earlier of the date on which (i) Agent or Lender has given notice of such default to  Borrower and (ii) Borrower has actual knowledge of such default or (b) with respect to a default  under any of Sections 6, 7.4, 7.5, 7.6, 7.7, 7.8, 7.9, 7.15, 7.16, 7.17, 7.18, 7.20, 7.21 and 7.22,  the occurrence of such default; or   9.3 Material Adverse Effect.  A circumstance has occurred that could reasonably be  expected to have a Material Adverse Effect; or  9.4 Representations.  Any representation or warranty made by Borrower in any Loan  Document or in the Warrant shall have been false or misleading in any material respect when  made or when deemed made; or   9.5 Insolvency.  Borrower (A) (i) shall make an assignment for the benefit of  creditors; or (ii) shall be unable to pay its debts as they become due, or be unable to pay or  perform under the Loan Documents, or shall become insolvent; or (iii) shall file a voluntary  petition in bankruptcy; or (iv) shall file any petition, answer, or document seeking for itself any  reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief  under any present or future statute, law or regulation pertinent to such circumstances; or (v) shall  seek or consent to or acquiesce in the appointment of any trustee, receiver, or liquidator of  Borrower or of all or any substantial part (i.e., 33-1/3% or more) of the assets or property of  Borrower; or (vi) shall cease operations of its business as its business has normally been  conducted, or terminate substantially all of its employees; or (vii) Borrower or its directors or  majority shareholders shall take any action initiating any of the foregoing actions described in  clauses (i) through (vi); or (B) either (i) forty-five (45) days shall have expired after the  commencement of an involuntary action against Borrower seeking reorganization, arrangement,  





 






    37    composition, readjustment, liquidation, dissolution or similar relief under any present or future  statute, law or regulation, without such action being dismissed or all orders or proceedings  thereunder affecting the operations or the business of Borrower being stayed; or (ii) a stay of any  such order or proceedings shall thereafter be set aside and the action setting it aside shall not be  timely appealed; or (iii) Borrower shall file any answer admitting or not contesting the material  allegations of a petition filed against Borrower in any such proceedings; or (iv) the court in  which such proceedings are pending shall enter a decree or order granting the relief sought in  any such proceedings; or (v) forty-five (45) days shall have expired after the appointment,  without the consent or acquiescence of Borrower, of any trustee, receiver or liquidator of  Borrower or of all or any substantial part of the properties of Borrower without such  appointment being vacated; or  9.6 Attachments; Judgments.  Any portion of Borrower’s assets is attached or seized,  or a levy is filed against any such assets, or a judgment or judgments is/are entered for the  payment of money (not covered by independent third party insurance as to which liability has  not been rejected by such insurance carrier), individually or in the aggregate, of at least  $2,000,000, or Borrower is enjoined or in any way prevented by court order from developing or  commercializing TRC101, and such court order has not been vacated or overturned within forty- five days of the effectiveness thereof; or    9.7 Other Obligations.  The occurrence of any event of default under any agreement  or obligation of Borrower involving any Indebtedness in excess of $5,000,000.  9.8 Stop Trade.  At any time, an SEC stop trade order or NASDAQ market trading  suspension of the Common Stock shall be in effect for five (5) consecutive days or five (5) days  during a period of ten (10) consecutive days, excluding in all cases a suspension of all trading on  a public market, provided that Borrower shall not have been able to cure such trading suspension  within thirty (30) days of the notice thereof or list the Common Stock on another public market  within sixty (60) days of such notice.  SECTION 10.  REMEDIES  10.1 General.  Upon and during the continuance of any one or more Events of Default,  (i) Agent may, and at the direction of the Required Lenders shall, accelerate and demand  payment of all or any part of the Secured Obligations together with a Prepayment Charge and  declare them to be immediately due and payable (provided, that upon the occurrence of an Event  of Default of the type described in Section 9.5, all of the Secured Obligations (including,  without limitation, any Prepayment Charge and any End of Term Charge) shall automatically be  accelerated and made due and payable, in each case without any further notice or act), (ii) Agent  may, at its option, sign and file in Borrower’s name any and all collateral assignments, notices,  control agreements, security agreements and other documents it deems necessary or appropriate  to perfect or protect the repayment of the Secured Obligations, and in furtherance thereof,  Borrower hereby grants Agent an irrevocable power of attorney coupled with an interest, and  (iii) Agent may notify any of Borrower’s account debtors to make payment directly to Agent,  compromise the amount of any such account on Borrower’s behalf and endorse Agent’s name  





 






    38    without recourse on any such payment for deposit directly to Agent’s account.  Agent may, and  at the direction of the Required Lenders shall, exercise all rights and remedies with respect to  the Collateral under the Loan Documents or otherwise available to it under the UCC and other  applicable law, including the right to release, hold, sell, lease, liquidate, collect, realize upon, or  otherwise dispose of all or any part of the Collateral and the right to occupy, utilize, process and  commingle the Collateral.  All Agent’s rights and remedies shall be cumulative and not  exclusive.  10.2 Collection; Foreclosure.  Upon the occurrence and during the continuance of any  Event of Default, Agent may, and at the direction of the Required Lenders shall, at any time or  from time to time, apply, collect, liquidate, sell in one or more sales, lease or otherwise dispose  of, any or all of the Collateral, in its then condition or following any commercially reasonable  preparation or processing, in such order as Agent may elect.  Any such sale may be made either  at public or private sale at its place of business or elsewhere.  Borrower agrees that any such  public or private sale may occur upon ten (10) calendar days’ prior written notice to Borrower.   Agent may require Borrower to assemble the Collateral and make it available to Agent at a place  designated by Agent that is reasonably convenient to Agent and Borrower.  The proceeds of any  sale, disposition or other realization upon all or any part of the Collateral shall be applied by  Agent in the following order of priorities:   First, to Agent and Lender in an amount sufficient to pay in full Agent’s and Lender’s  reasonable costs and professionals’ and advisors’ fees and expenses as described in  Section 11.11;   Second, to Lender in an amount equal to the then unpaid amount of the Secured  Obligations (including principal, interest, and interest at the default rate), in such order  and priority as Agent may choose in its sole discretion; and   Finally, after the full and final payment in Cash of all of the Secured Obligations (other  than inchoate obligations), to any creditor holding a junior Lien on the Collateral, or to  Borrower or its representatives or as a court of competent jurisdiction may direct.  Agent shall be deemed to have acted reasonably in the custody, preservation and disposition of any of  the Collateral if it complies with the obligations of a secured party under the UCC.  10.3 No Waiver.  Agent shall be under no obligation to marshal any of the Collateral  for the benefit of Borrower or any other Person, and Borrower expressly waives all rights, if  any, to require Agent to marshal any Collateral.    10.4 Cumulative Remedies.  The rights, powers and remedies of Agent hereunder  shall be in addition to all rights, powers and remedies given by statute or rule of law and are  cumulative.  The exercise of any one or more of the rights, powers and remedies provided herein  shall not be construed as a waiver of or election of remedies with respect to any other rights,  powers and remedies of Agent.  SECTION 11.  MISCELLANEOUS  





 






    39    11.1 Severability.  Whenever possible, each provision of this Agreement shall be  interpreted in such manner as to be effective and valid under applicable law, but if any provision  of this Agreement shall be prohibited by or invalid under such law, such provision shall be  ineffective only to the extent and duration of such prohibition or invalidity, without invalidating  the remainder of such provision or the remaining provisions of this Agreement.  11.2 Notice.  Except as otherwise provided herein, any notice, demand, request,  consent, approval, declaration, service of process or other communication (including the  delivery of Financial Statements) that is required, contemplated, or permitted under the Loan  Documents or with respect to the subject matter hereof shall be in writing, and shall be deemed  to have been validly served, given, delivered, and received upon the earlier of: (i) the day of  transmission by electronic mail or hand delivery or delivery by an overnight express service or  overnight mail delivery service; or (ii) the third calendar day after deposit in the United States of  America mails, with proper first class postage prepaid, in each case addressed to the party to be  notified as follows:  (a) If to Agent:  HERCULES CAPITAL, INC.  Legal Department  Attention:  Chief Legal Officer and Himani Bhalla  400 Hamilton Avenue, Suite 310  Palo Alto, CA  94301  email: legal@herculestech.com; hbhalla@htgc.com  Telephone: 650-289-3060  with a copy (which shall not constitute notice) to:  LATHAM & WATKINS LLP  Attention:  Haim Zaltzman   505 Montgomery Street, Suite 2000  San Francisco, CA  94111  email:  haim.zaltzman@lw.com   Telephone: 415-395-8870  (b) If to Lender:  HERCULES CAPITAL, INC. and  HERCULES TECHNOLOGY III, L.P.  Legal Department  Attention:  Chief Legal Officer and Himani Bhalla  400 Hamilton Avenue, Suite 310  Palo Alto, CA  94301  email: legal@herculestech.com; hbhalla@htgc.com   Telephone: 650-289-3060  





 






    40    with a copy (which shall not constitute notice) to:  LATHAM & WATKINS LLP  Attention:  Haim Zaltzman   505 Montgomery Street, Suite 2000  San Francisco, CA  94111  email:  haim.zaltzman@lw.com   Telephone: 415-395-8870  (c) If to Borrower:  TRICIDA, INC.  Attention:  Legal Department  7000 Shoreline Court, Suite 201  South San Francisco, CA 94080  email: legal@tricida.com with a copy to spietzke@tricida.com  Telephone: (415) 988-2420  with a copy (which shall not constitute notice) to:  SIDLEY AUSTIN LLP  Attention: Geoffrey W. Levin  787 Seventh Avenue  New York, NY 10019  Email: glevin@sidley.com  Telephone: 212-839-5776    or to such other address as each party may designate for itself by giving notice in conformity  with this section 11.2.  11.3 Entire Agreement; Amendments.    (a) This Agreement and the other Loan Documents constitute the entire agreement  and understanding of the parties hereto in respect of the subject matter hereof and thereof, and  supersede and replace in their entirety any prior proposals, term sheets, non-disclosure or  confidentiality agreements, letters, negotiations or other documents or agreements, whether  written or oral, with respect to the subject matter hereof or thereof (including Agent’s revised  proposal letter dated January 19, 2018 and the Non-Disclosure Agreement).    (b) Neither this Agreement, any other Loan Document, nor any terms hereof or  thereof may be amended, supplemented or modified except in accordance with the provisions  of this Section 11.3(b).  The Required Lenders and Borrower party to the relevant Loan  Document may, or, with the written consent of the Required Lenders, the Agent and the  Borrower party to the relevant Loan Document may, from time to time, (i) enter into written  amendments, supplements or modifications hereto and to the other Loan Documents for the  





 






    41    purpose of adding any provisions to this Agreement or the other Loan Documents or changing  in any manner the rights of the Lenders or of the Borrower hereunder or thereunder or (ii)  waive, on such terms and conditions as the Required Lenders or the Agent, as the case may be,  may specify in such instrument, any of the requirements of this Agreement or the other Loan  Documents or any default or Event of Default and its consequences; provided, however, that no  such waiver and no such amendment, supplement or modification shall (A) forgive the  principal amount or extend the final scheduled date of maturity of any Loan, extend the  scheduled date of any amortization payment in respect of any Term Loan, or reduce the stated  rate of any interest or fee payable hereunder, in each case without the written consent of each  Lender directly affected thereby; (B) eliminate or reduce the voting rights of any Lender under  this Section 11.3(b) without the written consent of such Lender; (C) reduce any percentage  specified in the definition of Required Lenders, consent to the assignment or transfer by the  Borrower of any of its rights and obligations under this Agreement and the other Loan  Documents, release all or substantially all of the Collateral or release a Borrower from its  obligations under the Loan Documents, in each case without the written consent of all Lenders;  or (D) amend, modify or waive any provision of Section 11.17 without the written consent of  the Agent.  Any such waiver and any such amendment, supplement or modification shall apply  equally to each Lender and shall be binding upon Borrower, the Lender, the Agent and all  future holders of the Loans.  11.4 No Strict Construction.  The parties hereto have participated jointly in the  negotiation and drafting of this Agreement.  In the event an ambiguity or question of intent or  interpretation arises, this Agreement shall be construed as if drafted jointly by the parties hereto  and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of  the authorship of any provisions of this Agreement.  11.5 No Waiver.  The powers conferred upon Agent and Lender by this Agreement are  solely to protect its rights hereunder and under the other Loan Documents and its interest in the  Collateral and shall not impose any duty upon Agent or Lender to exercise any such powers.  No  omission or delay by Agent or Lender at any time to enforce any right or remedy reserved to it,  or to require performance of any of the terms, covenants or provisions hereof by Borrower at  any time designated, shall be a waiver of any such right or remedy to which Agent or Lender is  entitled, nor shall it in any way affect the right of Agent or Lender to enforce such provisions  thereafter.  11.6 Survival.  All agreements, representations and warranties contained in this  Agreement and the other Loan Documents or in any document delivered pursuant hereto or  thereto shall be for the benefit of Agent and Lender and shall survive the execution and delivery  of this Agreement. Sections 6.3 and 8.1 shall survive the termination of this Agreement.  11.7 Successors and Assigns.  The provisions of this Agreement and the other Loan  Documents shall inure to the benefit of and be binding on Borrower and its permitted assigns (if  any).  Borrower shall not assign its obligations under this Agreement or any of the other Loan  Documents without Agent’s express prior written consent, and any such attempted assignment  shall be void and of no effect.  Agent and Lender may assign, transfer, or endorse its rights  





 






    42    hereunder and under the other Loan Documents with the consent of Borrower (provided that, in  the case of any assignment in connection with a Lender’s own financing or securitization  transactions, such consent shall not be unreasonably withheld), and all of such rights shall inure  to the benefit of Agent’s and Lender’s successors and assigns; provided that if an Event of  Default has occurred and is continuing, Agent or any Lender may assign, transfer or endorse its  rights hereunder or under the Loan Documents to any party without the consent of Borrower;  provided further that (a) any such assignment, transfer or endorsement to an Affiliate of any  Lender or Agent shall be allowed at any time without prior written consent of Borrower, and (b)  any transfer in the form of an assignment of security interest in favor of Agent’s or any Lender  shall be allowed at any time without prior written consent of Borrower.    11.8 Governing Law.  This Agreement and the other Loan Documents have been  negotiated and delivered to Agent and Lender in the State of California, and shall have been  accepted by Agent and Lender in the State of California.  Payment to Agent and Lender by  Borrower of the Secured Obligations is due in the State of California.  This Agreement and the  other Loan Documents shall be governed by, and construed and enforced in accordance with, the  laws of the State of California, excluding conflict of laws principles that would cause the  application of laws of any other jurisdiction.  11.9 Consent to Jurisdiction and Venue.  All judicial proceedings (to the extent that  the reference requirement of Section 11.10 is not applicable) arising in or under or related to this  Agreement or any of the other Loan Documents may be brought in any state or federal court  located in the State of California.  By execution and delivery of this Agreement, each party  hereto generally and unconditionally: (a) consents to nonexclusive personal jurisdiction in San  Mateo County, State of California; (b) waives any objection as to jurisdiction or venue in San  Mateo County, State of California; (c) agrees not to assert any defense based on lack of  jurisdiction or venue in the aforesaid courts; and (d) irrevocably agrees to be bound by any  judgment rendered thereby in connection with this Agreement or the other Loan Documents.   Service of process on any party hereto in any action arising out of or relating to this Agreement  shall be effective if given in accordance with the requirements for notice set forth in  Section 11.2, and shall be deemed effective and received as set forth in Section 11.2.  Nothing  herein shall affect the right to serve process in any other manner permitted by law or shall limit  the right of either party to bring proceedings in the courts of any other jurisdiction.  11.10 Mutual Waiver of Jury Trial / Judicial Reference.    (a) Because disputes arising in connection with complex financial transactions are  most quickly and economically resolved by an experienced and expert Person and the parties  wish applicable state and federal laws to apply (rather than arbitration rules), the parties desire  that their disputes be resolved by a judge applying such applicable laws.  EACH OF  BORROWER, AGENT AND LENDER SPECIFICALLY WAIVES ANY RIGHT IT MAY  HAVE TO TRIAL BY JURY OF ANY CAUSE OF ACTION, CLAIM, CROSS-CLAIM,  COUNTERCLAIM, THIRD PARTY CLAIM OR ANY OTHER CLAIM (COLLECTIVELY,  “CLAIMS”) ASSERTED BY BORROWER AGAINST AGENT, LENDER OR THEIR  RESPECTIVE ASSIGNEE OR BY AGENT, LENDER OR THEIR RESPECTIVE  





 






    43    ASSIGNEE AGAINST BORROWER.  This waiver extends to all such Claims, including  Claims that involve Persons other than Agent, Borrower and Lender; Claims that arise out of or  are in any way connected to the relationship among Borrower, Agent and Lender; and any  Claims for damages, breach of contract, tort, specific performance, or any equitable or legal  relief of any kind, arising out of this Agreement, any other Loan Document.    (b) If the waiver of jury trial set forth in Section 11.10(a) is ineffective or  unenforceable, the parties agree that all Claims shall be resolved by reference to a private judge  sitting without a jury, pursuant to Code of Civil Procedure Section 638, before a mutually  acceptable referee or, if the parties cannot agree, a referee selected by the Presiding Judge of  the San Mateo County, California.  Such proceeding shall be conducted in San Mateo County,  California, with California rules of evidence and discovery applicable to such proceeding.  (c) In the event Claims are to be resolved by judicial reference, either party may  seek from a court identified in Section 11.9, any prejudgment order, writ or other relief and  have such prejudgment order, writ or other relief enforced to the fullest extent permitted by law  notwithstanding that all Claims are otherwise subject to resolution by judicial reference.  11.11 Professional Fees.  Borrower promises to pay Agent’s and Lender’s fees and  expenses necessary to finalize the loan documentation, including but not limited to reasonable  attorneys’ fees, UCC searches, filing costs, and other miscellaneous expenses. In addition,  Borrower promises to pay any and all reasonable attorneys’ and other professionals’ fees and  expenses incurred by Agent and Lender after the Closing Date in connection with or related to:   (a) the Loan; (b) the administration, collection, or enforcement of the Loan; (c) the amendment  or modification of the Loan Documents; (d) any waiver, consent, release, or termination under  the Loan Documents; (e) the protection, preservation, audit, field exam, sale, lease, liquidation,  or disposition of Collateral or the exercise of remedies with respect to the Collateral; (f) any  legal, litigation, administrative, arbitration, or out of court proceeding in connection with or  related to Borrower or the Collateral, and any appeal or review thereof; and (g) any bankruptcy,  restructuring, reorganization, assignment for the benefit of creditors, workout, foreclosure, or  other action related to Borrower, the Collateral, the Loan Documents, including representing  Agent or Lender in any adversary proceeding or contested matter commenced or continued by or  on behalf of Borrower’s estate, and any appeal or review thereof.  11.12 Confidentiality.  Agent and Lender acknowledge that certain items of Collateral  and information provided to Agent and Lender by Borrower are confidential and proprietary  information of Borrower, if and to the extent such information either (x) is marked as  confidential by Borrower at the time of disclosure, or (y) should reasonably be understood to be  confidential (the “Confidential Information”).  Accordingly, Agent and Lender agree that any  Confidential Information it may obtain in the course of acquiring, administering, or perfecting   Agent’s security interest in the Collateral or otherwise pursuant to the terms of this Agreement  shall not be disclosed to any other Person or entity in any manner whatsoever, in whole or in  part, without the prior written consent of Borrower, except that Agent and any Lender may  disclose any such information:  (a) to its own directors, officers, employees, accountants,  counsel and other professional advisors (collectively, “Representatives”) and to its Affiliates if  





 






    44    Agent or Lender in their sole discretion determines that any such party should have access to  such information in connection with such party’s responsibilities in connection with the Loan or  this Agreement and, provided that such recipient of such Confidential Information either (i)  agrees to be bound by the confidentiality provisions of this paragraph or (ii) is otherwise subject  to confidentiality restrictions that reasonably protect against the disclosure of Confidential  Information; (b) if such information is generally available to the public; (c) if required or  appropriate in any report, statement or testimony submitted to any governmental authority  having or claiming to have jurisdiction over Agent or Lender; (d) if required or appropriate in  response to any summons or subpoena or in connection with any litigation, to the extent  permitted or deemed advisable by Agent’s or Lender’s counsel; (e) to comply with any legal  requirement or law applicable to Agent or Lender; (f) to the extent reasonably necessary in  connection with the exercise of any right or remedy under any Loan Document, including  Agent’s sale, lease, or other disposition of Collateral after default; (g) to any participant or  assignee of Agent or Lender or any prospective participant or assignee; provided, that such  participant or assignee or prospective participant or assignee agrees in writing to be bound by  this Section prior to disclosure; or (h) otherwise with the prior consent of Borrower; provided,  that any disclosure made in violation of this Agreement shall not affect the obligations of  Borrower or any of its Affiliates or any guarantor under this Agreement or the other Loan  Documents.  Agent’s and Lender’s obligations under this Section 11.12 shall supersede all of  their respective obligations under the Non-Disclosure Agreement and Agent and Lender shall be  responsible for any breach of the terms of this paragraph by any of their respective  Representatives or Affiliates.  11.13  Assignment of Rights.  Borrower acknowledges and understands that Agent or  Lender may, subject to Section 11.7, sell and assign all or part of its interest hereunder and  under the Loan Documents to any Person or entity (an “Assignee”).  After such assignment the  term “Agent” or “Lender” as used in the Loan Documents shall mean and include such  Assignee, and such Assignee shall be vested with all rights, powers and remedies of Agent and  Lender hereunder with respect to the interest so assigned; but with respect to any such interest  not so transferred, Agent and Lender shall retain all rights, powers and remedies hereby given.   No such assignment by Agent or Lender shall relieve Borrower of any of its obligations  hereunder.  Lender agrees that in the event of any transfer by it of the Note(s)(if any), it will  endorse thereon a notation as to the portion of the principal of the Note(s), which shall have  been paid at the time of such transfer and as to the date to which interest shall have been last  paid thereon.  Agent, acting solely for this purpose as an agent of Borrower, shall maintain at  one of its offices a copy of any assignment and a register for the recordation of the names and  addresses of Lenders and the principal and interest amounts 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 Borrower, Agent and 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.  The Register shall be available for inspection by Borrower and  any Lender, at any reasonable time and from time to time upon reasonable prior notice.  11.14 Revival of Secured Obligations.  This Agreement and the Loan Documents shall  remain in full force and effect and continue to be effective if any petition is filed by or against  





 






    45    Borrower for liquidation or reorganization, if Borrower becomes insolvent or makes an  assignment for the benefit of creditors, if a receiver or trustee is appointed for all or any  significant part of Borrower’s assets, or if any payment or transfer of Collateral is recovered  from Agent or Lender.  The Loan Documents and the Secured Obligations and Collateral  security shall continue to be effective, or shall be revived or reinstated, as the case may be, if at  any time payment and performance of the Secured Obligations or any transfer of Collateral to  Agent, or any part thereof is rescinded, avoided or avoidable, reduced in amount, or must  otherwise be restored or returned by, or is recovered from, Agent, Lender or by any obligee of  the Secured Obligations, whether as a “voidable preference,” “fraudulent conveyance,” or  otherwise, all as though such payment, performance, or transfer of Collateral had not been made.   In the event that any payment, or any part thereof, is rescinded, reduced, avoided, avoidable,  restored, returned, or recovered, the Loan Documents and the Secured Obligations shall be  deemed, without any further action or documentation, to have been revived and reinstated  except to the extent of the full, final, and indefeasible payment to Agent or Lender in Cash.  11.15 Counterparts.  This Agreement and any amendments, waivers, consents or  supplements hereto may be executed in any number of counterparts, and by different parties  hereto in separate counterparts, each of which when so delivered shall be deemed an original,  but all of which counterparts shall constitute but one and the same instrument.  11.16 No Third Party Beneficiaries.  No provisions of the Loan Documents are  intended, nor will be interpreted, to provide or create any third-party beneficiary rights or any  other rights of any kind in any Person other than Agent, Lender and Borrower unless specifically  provided otherwise herein, and, except as otherwise so provided, all provisions of the Loan  Documents will be personal and solely among Agent, the Lender and the Borrower.   11.17 Agency.    (a) Lender hereby irrevocably appoints Hercules Capital, Inc. to act on its behalf as  the Agent hereunder and under the other Loan Documents and authorizes the Agent to take  such actions on its behalf and to exercise such powers as are delegated to the Agent by the  terms hereof or thereof, together with such actions and powers as are reasonably incidental  thereto.  (b) Lender  agrees to indemnify the Agent in its capacity as such (to the extent not  reimbursed by Borrower and without limiting the obligation of Borrower to do so), according  to its respective Term Commitment percentages (based upon the total outstanding Term  Commitments) in effect on the date on which indemnification is sought under this Section  11.17, from and against any and all liabilities, obligations, losses, damages, penalties, actions,  judgments, suits, costs, expenses or disbursements of any kind whatsoever that may at any time  be imposed on, incurred by or asserted against the Agent in any way relating to or arising out  of, this Agreement, any of the other Loan Documents or any documents contemplated by or  referred to herein or therein or the transactions contemplated hereby or thereby or any action  taken or omitted by the Agent under or in connection with any of the foregoing; The  





 






    46    agreements in this Section shall survive the payment of the Loans and all other amounts  payable hereunder.  (c) Agent in Its Individual Capacity.  The Person serving as the 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 Agent and the term “Lender” shall, unless otherwise  expressly indicated or unless the context otherwise requires, include each such Person serving  as Agent hereunder in its individual capacity.   (d) Exculpatory Provisions.  The Agent shall have no duties or obligations except  those expressly set forth herein and in the other Loan Documents.  Without limiting the  generality of the foregoing, the Agent shall not:  (i) be subject to any fiduciary or other implied duties, regardless of whether any  default or any Event of Default has occurred and is continuing;  (ii) 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 Agent is required to  exercise as directed in writing by the Lender, provided that the Agent shall  not be required to take any action that, in its opinion or the opinion of its  counsel, may expose the Agent to liability or that is contrary to any Loan  Document or applicable law; and  (iii)except as expressly set forth herein and in the other Loan Documents, have  any duty to disclose, and the Agent shall not be liable for the failure to  disclose, any information relating to the Borrower or any of its Affiliates that  is communicated to or obtained by any Person serving as the Agent or any of  its Affiliates in any capacity.  (e) The Agent shall not be liable for any action taken or not taken by it (i) with the  consent or at the request of the Lender or as the Agent shall believe in good faith shall be  necessary, under the circumstances or (ii) in the absence of its own gross negligence or willful  misconduct.  (f) The 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 or Event of 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 Section 4  or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to  the Agent.   





 






    47    (g) Reliance by Agent.  Agent may rely, and shall be fully protected in acting, or  refraining to act, upon, any resolution, statement, certificate, instrument, opinion, report, notice,  request, consent, order, bond or other paper or document that it has no reason to believe to be  other than genuine and to have been signed or presented by the proper party or parties or, in the  case of cables, telecopies and telexes, to have been sent by the proper party or parties.  In the  absence of its gross negligence or willful misconduct, Agent may conclusively rely, as to the  truth of the statements and the correctness of the opinions expressed therein, upon any  certificates or opinions furnished to Agent and conforming to the requirements of the Loan  Agreement or any of the other Loan Documents.  Agent may consult with counsel, and any  opinion or legal advice of such counsel shall be full and complete authorization and protection  in respect of any action taken, not taken or suffered by Agent hereunder or under any Loan  Documents in accordance therewith.  Agent shall have the right at any time to seek instructions  concerning the administration of the Collateral from any court of competent jurisdiction.  Agent  shall not be under any obligation to exercise any of the rights or powers granted to Agent by  this Agreement, the Loan Agreement and the other Loan Documents at the request or direction  of Lenders unless Agent shall have been provided by Lender with adequate security and  indemnity against the costs, expenses and liabilities that may be incurred by it in compliance  with such request or direction.  11.18 Publicity.  None of the parties hereto nor any of its respective member businesses  and Affiliates shall, without the other parties’ prior written consent (which shall not be  unreasonably withheld or delayed), publicize or use (a) the other party’s name (including a brief  description of the relationship among the parties hereto), logo or hyperlink to such other parties’  web site, separately or together, in written and oral presentations, advertising, promotional and  marketing materials, client lists, public relations materials or on its web site (together, the  “Publicity Materials”); (b) the names of officers of such other parties in the Publicity Materials;  and (c) such other parties’ name, Trademarks, servicemarks in any news or press release  concerning such party; provided however, notwithstanding anything to the contrary herein, no  such consent shall be required (i) to the extent necessary to comply with the requests of any  regulators, legal requirements or laws applicable to such party, pursuant to any listing agreement  with any national securities exchange (so long as such party provides prior notice to the other  party hereto to the extent reasonably practicable) and (ii) to comply with Section 11.12.  (SIGNATURE PAGES FOLLOW)  





 






    48    IN WITNESS WHEREOF, Borrower, Agent and Lender have duly executed and delivered this  Loan and Security Agreement as of the day and year first above written.  BORROWER:  TRICIDA, INC.  Signature: _______________________  Print Name: _______________________  Title:  _______________________      Accepted in Palo Alto, California:  AGENT and LENDER:  HERCULES CAPITAL, INC.  Signature: _______________________  Print Name: _______________________  Title:  _______________________    LENDER:  HERCULES TECHNOLOGY III, L.P.,  a Delaware limited partnership  By: Hercules Technology SBIC   Management, LLC, its General   Partner  By: Hercules Capital, Inc., its Manager    By: ___________________________    Name: ___________________________   Its: ___________________________  





 






    49    Table of Addenda, Exhibits and Schedules  Addendum 1: SBA Provisions  Exhibit A: Advance Request     Attachment to Advance Request  Exhibit B: Term Note  Exhibit C: Name, Locations, and Other Information for Borrower  Exhibit D:  [Reserved]  Exhibit E: Borrower’s Deposit Accounts and Investment Accounts  Exhibit F: Compliance Certificate  Exhibit G: Joinder Agreement  Exhibit H:  ACH Debit Authorization Agreement  Exhibit I: Form of Warrant For Hercules Capital, Inc.  Exhibit J: Form Of Warrant For Hercules Technology III, L.P.  Schedule 1 Subsidiaries  Schedule 1.1 Commitments  Schedule 1A Existing Permitted Indebtedness  Schedule 1B Existing Permitted Investments  Schedule 1C Existing Permitted Liens  Schedule 5.3 Consents, Etc.  Schedule 5.8 Tax Matters  Schedule 5.9 Intellectual Property Claims  Schedule 5.10 Intellectual Property  Schedule 5.11 Borrower Products    





 






    50    ADDENDUM 1 to LOAN AND SECURITY AGREEMENT    (a) Borrower’s Business.  For purposes of this Addendum 1, Borrower shall be  deemed to include its “affiliates” as defined in Title 13 Code of Federal Regulations Section  121.103.  Borrower represents and warrants to Agent and Lender as of the Closing Date and  covenants to Agent and Lender for a period of one year after the Closing Date with respect to  subsections 2, 3, 4, 5, 6 and 7 below, as follows:  1. Size Status.  Borrower does not have tangible net worth in excess of $19.5  million or average net income after federal income taxes (excluding any  carry-over losses) for the preceding two completed fiscal years in excess  of $6.5 million.   2. No Relender.  Borrower’s primary business activity does not involve,  directly or indirectly, providing funds to others, purchasing debt  obligations, factoring, or long-term leasing of equipment with no  provision for maintenance or repair;  3. No Passive Business.  Borrower is engaged in a regular and continuous  business operation (excluding the mere receipt of payments such as  dividends, rents, lease payments, or royalties).  Borrower’s employees are  carrying on the majority of day to day operations.  Borrower will not pass  through substantially all of the proceeds of the Loan to another entity;  4. No Real Estate Business.  Borrower is not classified under Major Group  65 (Real Estate) or Industry No. 1531 (Operative Builders) of the SIC  Manual.  The proceeds of the Loan will not be used to acquire or refinance  real property unless Borrower (x) is acquiring an existing property and  will use at least 51 percent of the usable square footage for its business  purposes; (y) is building or renovating a building and will use at least 67  percent of the usable square footage for its business purposes; or (z)  occupies the subject property and uses at least 67 percent of the usable  square footage for its business purposes.  5. No Project Finance.  Borrower’s assets are not intended to be reduced or  consumed, generally without replacement, as the life of its business  progresses, and the nature of Borrower’s business does not require that a  stream of cash payments be made to the business’s financing sources, on  a basis associated with the continuing sale of assets (e.g., real estate  development projects and oil and gas wells).  The primary purpose of the  Loan is not to fund production of a single item or defined limited number  of items, generally over a defined production period, where such  production will constitute the majority of the activities of Borrower (e.g.,  motion pictures and electric generating plants).  





 






    51    6. No Farm Land Purchases.  Borrower will not use the proceeds of the Loan  to acquire farm land which is or is intended to be used for agricultural or  forestry purposes, such as the production of food, fiber, or wood, or is so  taxed or zoned.  7. No Foreign Investment.  The proceeds of the Loan will not be used  substantially for a foreign operation.  At the time of the Loan, Borrower  will not have more than 49 percent of its employees or tangible assets  located outside the United States of America.  The representation in this  subsection (7) is made only as of the date hereof and shall not continue for  one year as contemplated in the first sentence of this Section 1.  (b) Small Business Administration Documentation.  Agent and Lender acknowledge  that Borrower completed, executed and delivered to Agent SBA Forms 480, 652 and 1031  (Parts A and B) together with a business plan showing Borrower’s financial projections  (including balance sheets and income and cash flows statements) for the period described therein  and a written statement (whether included in the purchase agreement or pursuant to a separate  statement) from Agent regarding its intended use of proceeds from the sale of securities to Lender  (the “Use of Proceeds Statement”).  Borrower represents and warrants to Agent and Lender that  the information regarding Borrower and its affiliates set forth in the SBA Form 480, Form 652  and Form 1031 and the Use of Proceeds Statement delivered as of the Closing Date is accurate  and complete.  (c) Inspection.  The following covenants contained in this Section (c) are intended to  supplement and not to restrict the related provisions of the Loan Documents.  Subject to the  preceding sentence, Borrower will permit, for so long as Lender holds any debt or equity  securities of Borrower, Agent, Lender or their representative, at Agent’s or Lender’ expense,  examiners of the SBA to visit and inspect the properties and assets of Borrower, to examine its  books of account and records, and to discuss Borrower’s affairs, finances and accounts with  Borrower’s officers, senior management and accountants, all at such reasonable times as may be  requested by Agent or Lender or the SBA.  (d) Annual Assessment.  Promptly after the end of each calendar year (but in any event  prior to February 28 of each year) and at such other times as may be reasonably requested by  Agent or Lender, Borrower will deliver to Agent a written assessment of the economic impact of  Lender’s investment in Borrower, specifying the full-time equivalent jobs created or retained in  connection with the investment, the impact of the investment on the businesses of Borrower in  terms of expanded revenue and taxes, other economic benefits resulting from the investment  (such as technology development or commercialization, minority business development, or  expansion of exports) and such other information as may be required regarding Borrower in  connection with the filing of Lender’s SBA Form 468.  Lender will assist Borrower with  preparing such assessment.  In addition to any other rights granted hereunder, Borrower will  grant Agent and Lender and the SBA access to Borrower’s books and records for the purpose of  verifying the use of such proceeds.  Borrower also will furnish or cause to be furnished to Agent  





 






    52    and Lender such other information regarding the business, affairs and condition of Borrower as  Agent or Lender may from time to time reasonably request.   (e) Use of Proceeds.  Borrower will use the proceeds from the Loan only for purposes  set forth in Section 7.17.  Borrower will deliver to Agent from time to time promptly following  Agent’s request, a written report, certified as correct by Borrower’s Chief Accounting Officer or  Chief Financial Officer, verifying the purposes and amounts for which proceeds from the Loan  have been disbursed.  Borrower will supply to Agent such additional information and documents  as Agent reasonably requests with respect to its use of proceeds and will permit Agent and Lender  and the SBA to have access to any and all Borrower records and information and personnel as  Agent deems necessary to verify how such proceeds have been or are being used, and to assure  that the proceeds have been used for the purposes specified in Section 7.17.  (f) Activities and Proceeds.  Neither Borrower nor any of its affiliates (if any) will  engage in any activities or use directly or indirectly the proceeds from the Loan for any purpose  for which a small business investment company is prohibited from providing funds by the SBIC  Act, including 13 C.F.R. §107.720.  Without obtaining the prior written approval of Agent,  Borrower will not change within 1 year of the date hereof, Borrower’s current business activity  to a business activity which a licensee under the SBIC Act is prohibited from providing funds by  the SBIC Act.  (a) Redemption Provisions.  Notwithstanding any provision to the contrary contained  in the Certificate of Incorporation of Borrower, as amended from time to time (the “Charter”), if,  pursuant to the redemption provisions contained in the Charter, Lender is entitled to a redemption  of its Warrant, such redemption (in the case of Lender) will be at a price equal to the redemption  price set forth in the Charter (the “Existing Redemption Price”), if such exists.  If, however,  Lender delivers written notice to Borrower that the then current regulations promulgated under  the SBIC Act prohibit payment of the Existing Redemption Price in the case of an SBIC (or, if  applied, the Existing Redemption Price would cause the applicable preferred stock to lose its  classification as an “equity security” and Lender has determined that such classification is  unadvisable), the amount Lender will be entitled to receive shall be the greater of (i) fair market  value of the securities being redeemed taking into account the rights and preferences of such  securities plus any costs and expenses of the Lender incurred in making or maintaining the  Warrant, and (ii) the Existing Redemption Price where the amount of accrued but unpaid  dividends payable to the Lender is limited to Borrower’s earnings plus any costs and expenses  of the Lender incurred in making or maintaining the Warrant; provided, however, the amount  calculated in subsections (i) or (ii) above shall not exceed the Existing Redemption Price.  (b) Compliance and Resolution.  Borrower agrees that a failure to comply with  Borrower’s obligations under this Addendum, or any other set of facts or circumstances where it  has been asserted by any governmental regulatory agency (or Agent or Lender believes that there  is a substantial risk of such assertion) that Agent, Lender and their affiliates are not entitled to  hold, or exercise any significant right with respect to, any securities issued to Lender by  Borrower, will constitute a breach of the obligations of Borrower under the financing agreements  among Borrower, Agent and Lender.  In the event of (i) a failure to comply with Borrower’s  





 






    53    obligations under this Addendum; or (ii) an assertion by any governmental regulatory agency (or  Agent or Lender believes that there is a substantial risk of such assertion) of a failure to comply  with Borrower’s obligations under this Addendum, then (i) Agent, Lender and Borrower will  meet and resolve any such issue in good faith to the satisfaction of Borrower, Agent, Lender, and  any governmental regulatory agency, and (ii) upon request of Lender or Agent, Borrower will  cooperate and assist with any assignment of the financing agreements among Hercules  Technology II, L.P., Hercules Technology III, L.P. and Hercules Capital, Inc.   





 






    54    EXHIBIT A  ADVANCE REQUEST  To:  Agent: Date:  __________, 20[__]  Hercules Capital, Inc. (the “Agent”)   400 Hamilton Avenue, Suite 310   Palo Alto, CA 94301   email: legal@herculestech.com   Attn:  Tricida, Inc. (“Borrower”) hereby requests from Hercules Capital, Inc. and Hercules Technology III,  L.P. (each, a “Lender”) an Advance in the amount of _____________________ Dollars  ($________________) on ______________, _____ (the “Advance Date”) pursuant to the Loan and  Security Agreement dated as of February 28, 2018 (as amended, restated, supplemented or modified  from time to time, the “Agreement”) among Borrower, Agent and lenders party thereto. Capitalized  words and other terms used but not otherwise defined herein are used with the same meanings as  defined in the Agreement.  Please:  (a) Issue a check payable to Borrower ________  or  (b) Wire Funds to Borrower’s account ________ [IF FILED PUBLICLY,  ACCOUNT INFO REDACTED FOR SECURITY PURPOSES]   Bank:                        _____________________________   Address:                    _____________________________                                     _____________________________   ABA Number:          _____________________________   Account Number:     _____________________________   Account Name:        _____________________________   Contact Person:        _____________________________   Phone Number           To Verify Wire Info: _____________________________   Email address:           _____________________________    Borrower represents that the conditions precedent to the Advance set forth in Section 4.2 of the  Agreement are satisfied and shall be satisfied upon the making of such Advance, including but not  limited to:  (i) that no event that has had or could reasonably be expected to have a Material Adverse  Effect has occurred and is continuing; (ii) that the representations and warranties set forth in Section 5  of the Agreement and Section 10 of the Warrant are and shall be true and correct in all material  respects on and as of the Advance Date with the same effect as though made on and as of such date,  





 






    55    except to the extent such representations and warranties expressly relate to an earlier date; (iii) that  Borrower is in compliance with all the terms and provisions set forth in each Loan Document on its  part to be observed or performed; and (iv) that as of the Advance Date, no fact or condition exists that  could (or could, with the passage of time, the giving of notice, or both) constitute an Event of Default  under the Loan Documents.    Borrower hereby represents that Borrower’s corporate status and locations have not changed  since the date of the Agreement or, if the Attachment to this Advance Request is completed, are as set  forth in the Attachment to this Advance Request.  Borrower agrees to notify Agent promptly before the funding of the Loan if any of the matters  which  have been represented above shall not be true and correct on the Advance Date and if Agent has  received no such notice before the Advance Date then the statements set forth above shall be deemed  to have been made and shall be deemed to be true and correct as of the Advance Date.  Executed as of [              ], 20[   ].  BORROWER: Tricida, Inc.   SIGNATURE:________________________  TITLE:_____________________________  PRINT NAME:______________________  





 






    56    ATTACHMENT TO ADVANCE REQUEST  Dated: _______________________  Borrower hereby represents and warrants to Agent that Borrower’s current name and organizational  status is as follows:  Name: [                                                  ]  Type of organization: Corporation  State of organization: [                                      ]  Organization file number:    Borrower hereby represents and warrants to Agent that the street addresses, cities, states and postal  codes of its current locations are as follows:  





 






    EXHIBIT B  SECURED TERM PROMISSORY NOTE  $[  ],000,000 Advance Date:  ___ __, 20[  ]   Maturity Date:  _____ ___, 20[ ]  FOR VALUE RECEIVED, Tricida, Inc., a Delaware corporation (the “Borrower”),  hereby promises to pay to the order of [Hercules Capital, Inc., a Maryland corporation][Hercules  Technology III, L.P., a Delaware limited partnership][insert applicable Hercules lending entity] or  the holder of this Note (the “Lender”) at 400 Hamilton Avenue, Suite 310, Palo Alto, CA 94301  or such other place of payment as the holder of this Secured Term Promissory Note (this  “Promissory Note”) may specify from time to time in writing, in lawful money of the United  States of America, the principal amount of [  ] Million Dollars ($[  ],000,000) or such other  principal amount as Lender has advanced to Borrower, together with interest at a rate as set forth  in Section 2.2(d) of the Loan Agreement based upon a year consisting of 360 days, with interest  computed daily based on the actual number of days in each month.    THIS PROMISSORY NOTE MAY BE ISSUED WITH ORIGINAL ISSUE  DISCOUNT FOR PURPOSES OF SECTION 1271 ET SEQ. OF THE INTERNAL  REVENUE CODE OF 1986, AS AMENDED.  A HOLDER MAY OBTAIN THE ISSUE  PRICE, AMOUNT OF ORIGINAL ISSUE DISCOUNT, ISSUE DATE AND YIELD TO  MATURITY FOR SUCH NOTES BY SUBMITTING A REQUEST FOR SUCH  INFORMATION TO THE ISSUER AT THE ADDRESS SET FORTH IN SECTION 11.2  OF THE LOAN AGREEMENT.  This Promissory Note is the Note referred to in, and is executed and delivered in  connection with, that certain Loan and Security Agreement dated as of February 28, 2018, by and  among Borrower, Hercules Capital, Inc., a Maryland corporation (the “Agent”) and the several  banks and other financial institutions or entities from time to time party thereto as lender (as the  same may from time to time be amended, modified or supplemented in accordance with its terms,  the “Loan Agreement”), and is entitled to the benefit and security of the Loan Agreement and the  other Loan Documents (as defined in the Loan Agreement), to which reference is made for a  statement of all of the terms and conditions thereof.  All payments shall be made in accordance  with the Loan Agreement.  All terms defined in the Loan Agreement shall have the same  definitions when used herein, unless otherwise defined herein.  An Event of Default under the  Loan Agreement shall constitute a default under this Promissory Note.    Borrower waives presentment and demand for payment, notice of dishonor, protest and  notice of protest under the UCC or any applicable law.  Borrower agrees to make all payments  under this Promissory Note without setoff, recoupment or deduction and regardless of any  counterclaim or defense.  This Promissory Note has been negotiated and delivered to Lender and  is payable in the State of California.  This Promissory Note shall be governed by and construed  and enforced in accordance with, the laws of the State of California, excluding any conflicts of  law rules or principles that would cause the application of the laws of any other jurisdiction.  BORROWER:   Tricida, Inc.   





 






          By:         Title:      





 






    EXHIBIT C  NAME, LOCATIONS, AND OTHER INFORMATION FOR BORROWER  1.  Borrower represents and warrants to Agent that Borrower’s current name and  organizational status as of the Closing Date is as follows:  Name: Tricida, Inc.  Type of organization: Corporation  State of organization: Delaware  Organization file number: 5338864  2.  Borrower represents and warrants to Agent that for five (5) years prior to the Closing Date,  Borrower did not do business under any other name or organization or form except the following:  Name: Trilypsa, Inc.  Used during dates of: May 22 – December 16, 2013  Type of Organization:  Corporation  State of organization: Delaware   Organization file Number: 5338864  3. Borrower’s fiscal year ends on December 31.  4. Borrower’s federal employer tax identification number is: 46-3372526  5. Borrower represents and warrants to Agent that its chief executive office is located at 7000  Shoreline Court, Suite 201, South San Francisco, CA 94080.  





 






    EXHIBIT D  [RESERVED]  





 






    EXHIBIT E  BORROWER’S DEPOSIT ACCOUNTS AND INVESTMENT ACCOUNTS  Deposit Account:  Bank Name Account  Number  Branch Address Company/  Subsidiary  Purpose of  Account  Silicon Valley  Bank  [**************] 3003 Tasman  Drive  Tricida, Inc. Operational  Checking  Account  Silicon Valley  Bank  [**************] 3003 Tasman  Drive  Tricida, Inc. Payroll  Silicon Valley  Bank  [**************] 3003 Tasman  Drive  Tricida, Inc. Flexible  Spending    Securities Account:   Bank or  Brokerage Name  Account  Number  Branch Address Company/  Subsidiary  Purpose of  Account  Capital Advisors  Group / U.S.  Bank   [**************] 330 Passaic  Avenue, Suite  200 Fairfield, NJ  07004  Tricida, Inc. Corporate Cash  Management    





 






    EXHIBIT F  COMPLIANCE CERTIFICATE  Hercules Capital, Inc. (as “Agent”)  400 Hamilton Avenue, Suite 310  Palo Alto, CA 94301  Reference is made to that certain Loan and Security Agreement dated as of February 28,  2018 and the Loan Documents (as defined therein) entered into in connection with such Loan  and Security Agreement all as may be amended from time to time (hereinafter referred to  collectively as the “Loan Agreement”) by and among Hercules Capital, Inc. (the “Agent”), the  several banks and other financial institutions or entities from time to time party thereto  (collectively, the “Lender”) and Hercules Capital, Inc., as agent for the Lender (the “Agent”) and  Tricida, Inc. (the “Company”) as Borrower. All capitalized terms not defined herein shall have  the same meaning as defined in the Loan Agreement.  The undersigned is a Responsible Officer of the Company, knowledgeable of all  Company financial matters, and is authorized to provide certification of information regarding  the Company; hereby certifies, in such capacity, that in accordance with the terms and conditions  of the Loan Agreement, the Company is in compliance for the period ending [___________] of  all covenants, conditions and terms and hereby reaffirms that all representations and warranties  contained therein are true and correct on and as of the date of this Compliance Certificate with  the same effect as though made on and as of such date, except to the extent such representations  and warranties expressly relate to an earlier date, after giving effect in all cases to any  standard(s) of materiality contained in the Loan Agreement as to such representations and  warranties.  Attached are the required documents supporting the above certification.  The  undersigned further certifies that these are prepared in accordance with GAAP (except for the  absence of footnotes with respect to unaudited financial statement and subject to normal year end  adjustments) and are consistent from one period to the next except as explained below.  REPORTING REQUIREMENT REQUIRED  CHECK IF  ATTACHED  Interim Financial Statements   If Borrower’s Market  Capitalization is less  than $300,000,000 -  Monthly within 30 days   Interim Financial Statements   Quarterly within 45  days of first three fiscal  quarters   Audited Financial Statements  FYE within 90 days     FINANCIAL COVENANTS – please attached supporting documentation.  





 






    7.21(a)(i) – Minimum Cash (required from the Sixth Amendment Effective Date until the date of  obtaining approval for the NDA for TRC101 (a/k/a Veverimer) from the FDA)  (I)  Unrestricted Cash: $___________  If the Company achieved statistically significant positive data from Interim Analysis of the  ongoing VALOR trial, which, along with an acceptable safety profile, would support re-filing of  the NDA for TRC101 (a/k/a Veverimer) with the FDA, then go to (II)(2) below; otherwise go to  (II)(1) below.   (II)(1)  Is item (I) above greater than or equal to 100% of the outstanding principal  amount of the Term Loan Advances?   ___ Yes:  In compliance with Section 7.21(a)(i)  ___ No:  Not in compliance with Section 7.21(a)(i)  (II)(2) Is item (I) above greater than or equal to 75% of the outstanding principal amount  of the Term Loan Advances?  ___ Yes:  In compliance with Section 7.21(a)(i)  ___ No:  Not in compliance with Section 7.21(a)(i)  7.21(a)(ii) – Minimum Cash (required from the date of redemption of Permitted Convertible  Indebtedness subject to satisfaction of Redemption Conditions and at all times after such  redemption).  (I)  Unrestricted Cash: $___________  (II)  Is item (I) above greater than or equal to 100% of the outstanding Secured  Obligations?  ___ Yes:  In compliance with Section 7.21(a)(ii)   ___ No:  Not in compliance with Section 7.21(a)(ii)    [NET TRC101 PRODUCT REVENUE (CUMULATIVE)  The Net TRC101 Product Revenue (Cumulative) as of [___________] is $[__________]]1    1 To be included only if the amount exceeds $100,000,000 and has not previously been reported as exceeding  $400,000,000.  





 






    DEPOSIT AND SECURITIES ACCOUNTS  The undersigned hereby also confirms the below disclosed accounts represent all depository  accounts and securities accounts presently open in the name of each Borrower or  Subsidiary/Affiliate of Borrower, as applicable.     Depository  AC #  Financial  Institution  Account  Type  (Depository  / Securities)  Last  Month  Ending  Account  Balance  Purpose  of  Account  BORROWER  Name/Address:     1       2       3       4       5       6       7         BORROWER /  SUBSIDIARY /  AFFILIATE  COMPANY  Name/Address     1       2       3       4       5       6       





 






    7           [Signature page to follow]     





 






    Very Truly Yours,  Tricida, Inc.   By: ____________________________  Name:   _____________________________  Its: ____________________________      





 






    EXHIBIT G  FORM OF JOINDER AGREEMENT  This Joinder Agreement (the “Joinder Agreement”) is made and dated as of [          ], 20[   ], and is entered into by and between__________________., a ___________ corporation  (“Subsidiary”), and HERCULES CAPITAL, INC., a Maryland corporation (as “Agent”).    RECITALS  A.  Subsidiary’s Affiliate, Tricida, Inc.  (“Company”) has entered into that certain Loan  and Security Agreement dated as of February 28, 2018, with the several banks and other financial  institutions or entities from time to time party thereto as lender (collectively, the “Lender”) and  the Agent, as such agreement may be amended (the “Loan Agreement”), together with the other  agreements executed and delivered in connection therewith;   B.  Subsidiary acknowledges and agrees that it will benefit both directly and indirectly  from Company’s execution of the Loan Agreement and the other agreements executed and  delivered in connection therewith;  AGREEMENT  NOW THEREFORE, Subsidiary and Agent agree as follows:  1. The recitals set forth above are incorporated into and made part of this Joinder Agreement.   Capitalized terms not defined herein shall have the meaning provided in the Loan Agreement.  2.  By signing this Joinder Agreement, Subsidiary shall be bound by the terms and conditions of  the Loan Agreement the same as if it were the Borrower (as defined in the Loan Agreement)  under the Loan Agreement, mutatis mutandis, provided however, that (a) with respect to (i)  Section 5.1 of the Loan Agreement, Subsidiary represents that it is an entity duly organized,  legally existing and in good standing under the laws of [        ], (b) other than pursuant to the  terms of the Loan Agreement, neither Agent nor Lender shall have any duties, responsibilities  or obligations to Subsidiary arising under or related to the Loan Agreement or the other Loan  Documents, (c) that if Subsidiary is covered by Company’s insurance, Subsidiary shall not be  required to maintain separate insurance or comply with the provisions of Sections 6.1 and 6.2  of the Loan Agreement, and (d) that as long as Company satisfies the requirements of Section  7.1 of the Loan Agreement, Subsidiary shall not have to provide Agent separate Financial  Statements.  To the extent that Agent or Lender has any duties, responsibilities or obligations  arising under or related to the Loan Agreement or the other Loan Documents, those duties,  responsibilities or obligations shall flow only to Company and not to Subsidiary or any other  Person or entity.  By way of example (and not an exclusive list): (i) Agent’s providing notice to  Company in accordance with the Loan Agreement or as otherwise agreed among Company,  Agent and Lender shall be deemed providing notice to Subsidiary; (ii) a Lender’s providing an  Advance to Company shall be deemed an Advance to Subsidiary; and (iii) Subsidiary shall have  no right to request an Advance or make any other demand on Lender.  3. If Subsidiary has not issued certificates for its equity as of the date hereof, Subsidiary agrees  not to certificate its equity securities without Agent’s prior written consent, which consent may  





 






    be conditioned on the delivery of such equity securities to Agent in order to perfect Agent’s  security interest in such equity securities.  4. Subsidiary acknowledges that it benefits, both directly and indirectly, from the Loan Agreement  and the transactions contemplated thereby, and hereby waives, for itself and on behalf on any  and all successors in interest (including without limitation any assignee for the benefit of  creditors, receiver, bankruptcy trustee or itself as debtor-in-possession under any bankruptcy  proceeding) to the fullest extent provided by law, any and all claims, rights or defenses to the  enforcement of this Joinder Agreement on the basis that (a) it failed to receive adequate  consideration for the execution and delivery of this Joinder Agreement or (b) its obligations  under this Joinder Agreement are avoidable as a fraudulent conveyance.  5. As security for the prompt, complete and indefeasible payment when due (whether on the  payment dates or otherwise) of all the Secured Obligations, Subsidiary grants to Agent a  security interest in all of Subsidiary’s right, title, and interest in and to the Collateral.    SUBSIDIARY:  _________________________________.      By:      Name:      Title:       Address:             Telephone: ___________   email: ____________  AGENT:  HERCULES CAPITAL, INC.    By:____________________________________  Name:__________________________________  Title: ___________________________________    Address:  400 Hamilton Ave., Suite 310  Palo Alto, CA 94301  email: legal@herculestech.com  Telephone:  650-289-3060  





 






    EXHIBIT H    ACH DEBIT AUTHORIZATION AGREEMENT  Hercules Capital, Inc. and Hercules Technology III, L.P.  400 Hamilton Avenue, Suite 310  Palo Alto, CA  94301  Re:  Loan and Security Agreement dated as of February 28, 2018 (as the same may from  time to time be amended, modified or supplemented in accordance with its terms, the  “Agreement”) by and among Tricida, Inc. (“Borrower”) and Hercules Capital, Inc., as  agent (“Company”) and the lenders party thereto (collectively, the “Lender”)  In connection with the above referenced Agreement, the Borrower hereby authorizes the Company  to initiate debit entries for (i) the periodic payments due under the Agreement and (ii) following  the occurrence of an Event of Default that continues, out-of-pocket legal fees and costs incurred  by Agent or Lender pursuant to Section 11.11 of the Agreement to the Borrower’s account  indicated below.  The Borrower authorizes the depository institution named below to debit to such  account.     [IF FILED PUBLICLY, ACCOUNT INFO REDACTED FOR SECURITY PURPOSES]  DEPOSITORY NAME BRANCH  CITY STATE AND ZIP CODE  TRANSIT/ABA NUMBER ACCOUNT NUMBER  This authority will remain in full force and effect so long as any amounts are due under the  Agreement.     ____________________________________________  (Borrower)(Please Print)  By: _________________________________________  Date: ________________________________________  





 






  EXHIBIT I  FORM OF WARRANT FOR HERCULES CAPITAL, INC.     THIS WARRANT, AND THE SECURITIES ISSUABLE UPON THE EXERCISE OF THIS  WARRANT, HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS  AMENDED (THE “ACT”), OR ANY STATE SECURITIES LAWS.  THEY MAY NOT BE  SOLD, OFFERED FOR SALE, PLEDGED, OR HYPOTHECATED IN THE ABSENCE OF AN  EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF  COUNSEL (WHICH MAY BE COMPANY COUNSEL) REASONABLY SATISFACTORY TO  THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE ACT, OR  ANY APPLICABLE STATE SECURITIES LAWS.  WARRANT AGREEMENT  To Purchase Shares of Common Stock of  Tricida, Inc.  Dated as of [     ] (the “Effective Date”)  WHEREAS, Tricida, Inc., a Delaware corporation, has entered into a Loan and Security  Agreement, dated as of February 28, 2018 (as amended by that certain First Amendment to Loan  and Security Agreement and First Amendment to Warrants, dated as of April 10, 2018, that certain  Second Amendment to Loan and Security Agreement, dated as of October 15, 2018, and that certain  Third Amendment to Loan and Security Agreement, dated as of March 27, 2019, and as further  amended, modified or supplemented from time to time, the “Loan Agreement”), with Hercules  Capital, Inc., a Maryland corporation, in its capacity as administrative and collateral agent,  Hercules Capital, Inc. (the “Warrantholder”) and the other lender parties thereto;  WHEREAS, the Company (as defined below) desires to grant to the Warrantholder, in  consideration for, among other things, the financial accommodations provided for in the Loan  Agreement, the right to purchase shares of Common Stock (as defined below) pursuant to this  Warrant Agreement (the “Agreement”);  NOW, THEREFORE, in consideration of the Warrantholder executing and delivering the Loan  Agreement and providing the financial accommodations contemplated therein, and in consideration  of the mutual covenants and agreements contained herein, the Company and the Warrantholder  agree as follows:  SECTION 1. GRANT OF THE RIGHT TO PURCHASE COMMON STOCK.  For value received, the Company hereby grants to the Warrantholder, and the Warrantholder is  entitled, upon the terms and subject to the conditions hereinafter set forth, to subscribe for and  purchase, from the Company, an aggregate number of fully paid and non-assessable shares of  Common Stock equal to the quotient derived by dividing (a) the Warrant Coverage (as defined  below) by (b) the Exercise Price (as defined below). The Exercise Price of such shares are subject  to adjustment as provided in Section 8.  As used herein, the following terms shall have the following  meanings:  





 






  “Act” means the Securities Act of 1933, as amended.  “Charter” means the Company’s Certificate of Incorporation, as may be amended from  time to time.  “Common Stock” means the Company’s common stock, $0.001 par value per share.  “Company” means Tricida, Inc., a Delaware corporation.  “Exercise Price” means $23.92.  “Merger Event” means any sale, lease, exclusive license or other transfer of all or  substantially all assets of the Company or any merger or consolidation involving the  Company in which the Company is not the surviving entity, or in which the outstanding  shares of the Company’s capital stock are otherwise converted into or exchanged for shares  of common stock, preferred stock, other securities or property of another entity; other than  any such consolidation, merger or reorganization in which the shares of capital stock of the  Company immediately prior to such consolidation, merger or reorganization, continue to  represent a majority of the voting power of the surviving entity (or, if the surviving entity  is a wholly owned subsidiary, its parent) immediately after such consolidation, merger or  reorganization (provided that, all shares of Common Stock issuable upon exercise of  options or warrants outstanding immediately prior to such consolidation or merger or upon  conversion of convertible securities outstanding immediately prior to such merger or  consolidation shall be deemed to be outstanding immediately prior to such merger or  consolidation and, if applicable, converted or exchanged in such merger or consolidation  on the same terms as the actual outstanding shares of capital stock are converted or  exchanged).  “Purchase Price” means, with respect to any exercise of this Agreement, an amount equal  to the Exercise Price as of the relevant time multiplied by the number of shares of Common  Stock requested to be exercised under this Agreement pursuant to such exercise.  “Warrant Coverage” means [1.00% of such amount advanced under Tranche 1-A, Tranche  1-B, Tranche 1-C or Tranche 1-D (as defined and set forth in the Loan Agreement), as  applicable to the tranche under which the Agreement was entered into by the parties hereto  in connection with the Term Loan Advance (as defined in the Loan Agreement)]2.  SECTION 2. TERM OF THE AGREEMENT.  Except as otherwise provided for herein, the term of this Agreement and the right to purchase  Common Stock as granted herein (the “Warrant”) shall commence on the Effective Date and shall  be exercisable for a period ending upon the earliest to occur of (i) [  ]3, or (ii) immediately prior  to the closing of a Merger Event  (the “Exercise Period”).  SECTION 3. EXERCISE OF THE PURCHASE RIGHTS.    2 Note: Warrantholder to complete based off of applicable Tranche.   3 Note: To be seven (7) years from the date of issuance.  





 






  (a) Exercise.  The purchase rights set forth in this Agreement are exercisable  by the Warrantholder, in whole or in part, at any time, or from time to time, prior to the expiration  of the Exercise Period, by tendering to the Company at its principal office a notice of exercise in  the form attached hereto as Exhibit I (the “Notice of Exercise”), duly completed and executed.   Promptly upon receipt of the Notice of Exercise and the payment of the Purchase Price in  accordance with the terms set forth below, and in no event later than five (5) days thereafter, the  Company shall issue to the Warrantholder a certificate for the number of shares of Common  Stock purchased and shall execute the acknowledgment of exercise in the form attached hereto as  Exhibit II (the “Acknowledgment of Exercise”) indicating the number of shares which remain  subject to future purchases under this Warrant, if any.  The Purchase Price may be paid at the Warrantholder’s election either (i) by cash or check, or (ii)  by surrender of all or a portion of the Warrant for shares of Common Stock to be exercised under  this Agreement and, if applicable, an amended Agreement representing the remaining number of  shares purchasable hereunder, as determined below (“Net Issuance”).  If the Warrantholder elects  the Net Issuance method, the Company will issue shares of Common Stock in accordance with the  following formula:  X = Y(A-B)  A   Where: X =  the number of shares of Common Stock to be issued to the Warrantholder.  Y =  the number of shares of Common Stock requested to be purchased under  this Agreement.  A =  the fair market value of one (1) share of Common Stock at the time of  issuance of such shares of Common Stock.  B =  the Exercise Price.  For purposes of the above calculation, current fair market value of Common Stock shall mean with  respect to each share of Common Stock:  (A) if the Common Stock is traded on a securities exchange,  the fair market value shall be deemed to be the average of the closing  prices over a five (5) trading day period ending three (3) days before the  day the current fair market value of the securities is being determined; or  (B) if the Common Stock is traded over-the-counter, the fair  market value shall be deemed to be the average of the closing bid and  asked price quoted on the NASDAQ system (or similar system) over the  five (5) trading day period ended three (3) days before the day the current  fair market value of the securities is being determined;  (i) if at any time the Common Stock is not listed on any securities  exchange or quoted in the NASDAQ National Market or the over-the-counter market, the current  fair market value of Common Stock shall be the highest price per share which the Company could  reasonably expect to obtain from a willing buyer (not a current employee or director) for shares of  Common Stock sold by the Company, from authorized but unissued shares, as determined in  good faith by its Board of Directors (provided that if the Company is then in possession of a  recent valuation of the Company’s Common Stock, the Board of Directors may rely on such  





 






  valuation), unless the Notice of Exercise is delivered in connection with a Merger Event, in which  case the fair market value of Common Stock shall be deemed to be the per share value received  by the holders of the Company’s Common Stock on a common equivalent basis pursuant to such  Merger Event.  Upon partial exercise by either cash or Net Issuance, the Company shall promptly issue an amended  Agreement representing the remaining number of shares purchasable hereunder. All other terms  and conditions of such amended Agreement shall be identical to those contained herein, including,  but not limited to the Effective Date hereof and Exercise Period.  (b) Exercise Prior to Expiration.  To the extent this Agreement is not  previously exercised as to all shares of Common Stock subject hereto, and if the fair market value  of one share of the Common Stock is greater than the Exercise Price then in effect, this  Agreement shall be deemed automatically exercised pursuant to Section 3(a) (even if not  surrendered) as of the last day of the Exercise Period.  For purposes of such automatic exercise,  the fair market value of one share of the Common Stock upon such expiration shall be determined  pursuant to Section 3(a).  To the extent this Agreement or any portion thereof is deemed  automatically exercised pursuant to this Section 3(b), the Company agrees to promptly notify the  Warrantholder of the number of shares of Common Stock, if any, the Warrantholder is to receive  by reason of such automatic exercise.  SECTION 4. RESERVATION OF SHARES.  During the term of this Agreement, the Company will at all times have authorized and reserved a  sufficient number of shares of its Common Stock to provide for the exercise of the rights to  purchase Common Stock as provided for herein.  SECTION 5. NO FRACTIONAL SHARES OR SCRIP.  No fractional shares or scrip representing fractional shares shall be issued upon the exercise of this  Agreement, but in lieu of such fractional shares, the Company shall make a cash payment therefor  equal to such fraction multiplied by the then fair market value of one share of Common Stock.  SECTION 6. NO RIGHTS AS STOCKHOLDER.  This Agreement does not entitle the Warrantholder to any voting rights or other rights as a  stockholder of the Company prior to the exercise of this Agreement.  SECTION 7. WARRANTHOLDER REGISTRY.  The Company shall maintain a registry showing the name and address of the registered holder of  this Agreement.  The Warrantholder’s initial address, for purposes of such registry, is set forth  below the Warrantholder’s signature on this Agreement.  The Warrantholder may change such  address by giving written notice of such changed address to the Company.  SECTION 8. ADJUSTMENT RIGHTS.  The Exercise Price and the number of shares of Common Stock purchasable hereunder are subject  to adjustment, as follows:  





 






  (a) Merger Event.  If at any time there shall be a Merger Event, then, as a  part of such Merger Event, lawful provision shall be made so that the Warrantholder shall  be  entitled to receive, concurrently with the closing of such Merger Event, the number of shares of  Common Stock or other securities or property, if any, (collectively, “Reference Property”) that  the Warrantholder would have received in connection with such Merger Event if Warrantholder  had exercised this Agreement immediately prior to the Merger Event pursuant to the Net Issuance  provisions of this Warrant Agreement without actually exercising such right.   (b) Reclassification of Shares.  Except for Merger Events subject to Section  8(a), if the Company at any time shall, by combination, reclassification, exchange or subdivision  of securities or otherwise, change any of the securities as to which purchase rights under this  Agreement exist into the same or a different number of securities of any other class or classes,  this Agreement shall thereafter represent the right to acquire such number and kind of securities  as would have been issuable as the result of such change with respect to the securities which were  subject to the purchase rights under this Agreement immediately prior to such combination,  reclassification, exchange, subdivision or other change. The provisions of this Section 8(b) shall  similarly apply to any successive combination, reclassification, exchange, subdivision or other  change.  (c) Subdivision or Combination of Shares.  If the Company at any time shall  combine or subdivide its Common Stock, (i) in the case of a subdivision, the Exercise Price shall  be proportionately decreased and the number of shares of Common Stock issuable hereunder  shall be proportionately increased, or (ii) in the case of a combination, the Exercise Price shall be  proportionately increased and the number of shares of Common Stock issuable hereunder shall be  proportionately decreased.   (d) Timely Notice.  The Warrantholder shall retain the benefit of the  applicable notice period notwithstanding anything to the contrary contained in any insufficient  notice received by the Warrantholder.   SECTION 9. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE  COMPANY.  (a) Reservation of Common Stock.  The Common Stock issuable upon  exercise of this Agreement has been duly and validly reserved and, when issued in accordance  with the provisions of this Agreement, will be validly issued, fully paid and non-assessable, and  will be free of any taxes, liens, charges or encumbrances created by the Company; provided, that  the Common Stock issuable pursuant to this Agreement may be subject to restrictions on transfer  under state and/or federal securities laws.  The Company has made available to the Warrantholder  true, correct and complete copies of its Charter and current bylaws as of the Effective Date. The  issuance of certificates for shares of Common Stock upon exercise of this Agreement shall be  made without charge to the Warrantholder for any issuance tax in respect thereof, or other cost  incurred by the Company in connection with such exercise and the related issuance of shares of  Common Stock; provided, that the Company shall not be required to pay any tax which may be  payable in respect of any transfer and the issuance and delivery of any certificate in a name other  than that of the Warrantholder.  (b) Due Authority.  The execution and delivery by the Company of this  Agreement and the performance of all obligations of the Company hereunder, including the  issuance to the Warrantholder of the right to acquire the shares of Common Stock, have been duly  authorized by all necessary corporate action on the part of the Company.  This Agreement: (i)  





 






  does not violate the Charter or the Company’s current bylaws; (ii) does not contravene any law or  governmental rule, regulation or order applicable to the Company; and (iii) does not contravene  any provision of, or constitute a default under, any indenture, mortgage, contract or other  instrument to which the Company is a party or by which it is bound.  This Agreement constitutes  a legal, valid and binding agreement of the Company, enforceable in accordance with its terms,  except (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium or other  laws of general application affecting enforcement of creditors’ rights and (b) as limited by general  principles of equity that restrict the availability of equitable remedies.  (c) Consents and Approvals.  No consent or approval of, giving of notice to,  registration with, or taking of any other action in respect of any state, federal or other  governmental authority or agency is required with respect to the execution, delivery and  performance by the Company of its obligations under this Agreement, except for the filing of  notices pursuant to Regulation D under the Act and any filing required by applicable state  securities law, which filings will be effective by the time required thereby.  (d) Registration Rights.  The Company agrees that the shares of Common  Stock issued upon exercise of this Warrant shall have the “Piggyback” and S-3 registration rights  pursuant to and as set forth in the Company’s Amended and Restated Investor Rights Agreement,  dated November 7, 2017, as amended from time to time (the “Investor Rights Agreement”) on a  pari passu basis with the holders of outstanding shares of Registrable Securities (as defined in the  Investor Rights Agreement) who are parties thereto. The provisions set forth in the Company’s  Investor Rights Agreement or similar agreement relating to such registration rights in effect as of  the Effective Date may not be amended, modified or waived without the prior written consent of  the Warrantholder unless such amendment, modification or waiver affects the rights associated  with the shares of Common Stock issued and issuable upon exercise hereof in the same manner as  such amendment, modification or waiver affects the rights associated with the shares of Common  Stock held by the holders of a majority of the shares of Common Stock held by parties thereto.  (e) Exempt Transaction.  Subject to the accuracy of the Warrantholder’s  representations in Section 10, the issuance of the Common Stock upon exercise of this Agreement  will constitute a transaction exempt from (i) the registration requirements of Section 5 of the Act,  in reliance upon Section 4(a)(2) thereof, and (ii) the qualification requirements of the applicable  state securities laws.  (f) Compliance with Rule 144.  If the Warrantholder proposes to sell  Common Stock issuable upon the exercise of this Agreement in compliance with Rule 144  promulgated by the SEC, then, upon the Warrantholder’s written request to the Company, the  Company shall furnish to the Warrantholder, within ten days after receipt of such request, a  written statement confirming the status of the Company’s compliance with the filing requirements  of the SEC as set forth in such Rule, as such Rule may be amended from time to time.  SECTION 10. REPRESENTATIONS AND COVENANTS OF THE WARRANTHOLDER.  This Agreement has been entered into by the Company in reliance upon the following  representations and covenants of the Warrantholder:  (a) Investment Purpose.  The right to acquire Common Stock is being  acquired for investment and not with a view to the sale or distribution of any part thereof, and the  Warrantholder has no present intention of selling or engaging in any public distribution of such  





 






  rights or the Common Stock except pursuant to an effective registration statement or an  exemption from the registration requirements of the Act.  (b) Private Issue.  The Warrantholder understands (i) that the Common  Stock issuable upon exercise of this Agreement is not registered under the Act or qualified under  applicable state securities laws on the ground that the issuance contemplated by this Agreement  will be exempt from the registration and qualifications requirements thereof, and (ii) that the  Company’s reliance on such exemption is predicated on the representations set forth in this  Section 10.  (c) Financial Risk.  The Warrantholder has such knowledge and experience  in financial and business matters as to be capable of evaluating the merits and risks of its  investment, and has the ability to bear the economic risks of its investment.  (d) Risk of No Registration.  The Warrantholder understands that if the  Company does not register with the SEC pursuant to Section 12 of the Securities Exchange Act of  1934 (the “1934 Act”), or file reports pursuant to Section 15(d) of the 1934 Act, or if a  registration statement covering the securities under the Act is not in effect when it desires to sell  (i) the rights to purchase Common Stock pursuant to this Agreement or (ii) the Common Stock  issuable upon exercise of the right to purchase, it may be required to hold such securities for an  indefinite period.  The Warrantholder also understands that any sale of (A) its rights hereunder to  purchase Common Stock or (B) Common Stock issued or issuable hereunder which might be  made by it in reliance upon Rule 144 under the Act may be made only in accordance with the  terms and conditions of that Rule.  (e) Accredited Investor.  The Warrantholder is an “accredited investor”  within the meaning of the Securities and Exchange Rule 501 of Regulation D, as presently in  effect.  (f) For purposes of the rights contemplated by Section 9(d) of this  Agreement, upon exercise of the Warrant, the Warrantholder hereby agrees to be bound by and  subject to the terms and provisions of the Investor Rights Agreement as if the Warrantholder was  an “Investor” (as defined in the Investor Rights Agreement) party thereto.  SECTION 11. TRANSFERS.  Subject to compliance with applicable federal and state securities laws, this Agreement and all  rights hereunder are transferable, in whole or in part, without charge to the holder hereof (except  for transfer taxes) upon surrender of this Agreement properly endorsed; provided, however, that if  there is not then any ongoing Event of Default (as defined in the Loan Agreement), then such  transfer shall be subject to the prior written consent of the Company; provided further, that  notwithstanding the foregoing, any such transfer to an Affiliate (as defined in the Loan Agreement)  of the Warrantholder shall be allowed at any time without the prior written consent of the Company.   Each taker and holder of this Agreement, by taking or holding the same, consents and agrees that  this Agreement, when endorsed in blank, shall be deemed negotiable, and that the holder hereof,  when this Agreement shall have been so endorsed and its transfer recorded on the Company’s  books, shall be treated by the Company and all other persons dealing with this Agreement as the  absolute owner hereof for any purpose and as the person entitled to exercise the rights represented  by this Agreement.  The transfer of this Agreement shall be recorded on the books of the Company  upon receipt by the Company of a notice of transfer in the form attached hereto as Exhibit III (the  “Transfer Notice”), at its principal offices and the payment to the Company of all transfer taxes and  





 






  other governmental charges imposed on such transfer.  Until the Company receives such Transfer  Notice, the Company may treat the registered owner hereof as the owner for all purposes. The  Warrantholder may not transfer this Warrant to a competitor of the Company, as reasonably  determined by the Board of Directors.   SECTION 12. MISCELLANEOUS.  (a) Effective Date.  The provisions of this Agreement shall be construed and  shall be given effect in all respects as if it had been executed and delivered by the Company on  the date hereof.  This Agreement shall be binding upon any successors or assigns of the  Company.  (b) Remedies.  In the event of any default hereunder, the non-defaulting  party may proceed to protect and enforce its rights either by suit in equity and/or by action at law,  including but not limited to an action for damages as a result of any such default, and/or an action  for specific performance for any default where the Warrantholder will not have an adequate  remedy at law and where damages will not be readily ascertainable. The Company expressly  agrees that it shall not oppose an application by the Warrantholder or any other person entitled to  the benefit of this Agreement requiring specific performance of any or all provisions hereof or  enjoining the Company from continuing to commit any such breach of this Agreement.  (c) No Impairment of Rights.  The Company will not, by amendment of its  Charter or through any other means, avoid or seek to avoid the observance or performance of any  of the terms of this Agreement, but will at all times in good faith assist in the carrying out of all  such terms and in the taking of all such actions as may be necessary or appropriate in order to  protect the rights of the Warrantholder against impairment.  (d) Additional Documents.  The Company, upon execution of this  Agreement, shall provide the Warrantholder with a certified copy of resolutions of the  Company’s board of directors evidencing approval of this Agreement and the reservation of the  shares of Common Stock issuable upon exercise of the Warrant.  (e) Attorney’s Fees.  In any litigation, arbitration or court proceeding  between the Company and the Warrantholder relating hereto, the prevailing party shall be entitled  to attorneys’ fees and expenses and all costs of proceedings incurred in enforcing this Agreement.   For the purposes of this Section 12(e), attorneys’ fees shall include without limitation fees  incurred in connection with the following: (i) contempt proceedings; (ii) discovery; (iii) any  motion, proceeding or other activity of any kind in connection with an insolvency proceeding;  (iv) garnishment, levy, and debtor and third party examinations; and (v) post-judgment motions  and proceedings of any kind, including without limitation any activity taken to collect or enforce  any judgment.  (f) Severability.  In the event any one or more of the provisions of this  Agreement shall for any reason be held invalid, illegal or unenforceable, the remaining provisions  of this Agreement shall be unimpaired, and the invalid, illegal or unenforceable provision shall be  replaced by a mutually acceptable valid, legal and enforceable provision, which comes closest to  the intention of the parties underlying the invalid, illegal or unenforceable provision.  (g) Notices.  Except as otherwise provided herein, any notice, demand,  request, consent, approval, declaration, service of process or other communication that is  required, contemplated, or permitted under this Agreement or with respect to the subject matter  





 






  hereof shall be in writing, and shall be deemed to have been validly served, given, delivered, and  received upon the earlier of: (i) the day of transmission by electronic mail or hand delivery if  transmission or delivery occurs on a business day at or before 5:00 pm in the time zone of the  recipient, or, if transmission or delivery occurs on a non-business day or after such time, the first  business day thereafter, or the first business day after deposit with an overnight express service or  overnight mail delivery service; or (ii) the third (3rd) calendar day after deposit in the United  States mails, with proper first class postage prepaid, and shall be addressed to the party to be  notified as follows:  If to the Warrantholder:  HERCULES CAPITAL, INC.  Legal Department  Attention:  Chief Legal Officer and Himani Bhalla  400 Hamilton Avenue, Suite 310  Palo Alto, CA 94301  Email:legal@herculestech.com; hbhalla@htgc.com  Telephone:  650-289-3060  with a copy to (which shall not constitute notice):  LATHAM & WATKINS LLP  Attention:  Haim Zaltzman   505 Montgomery Street, Suite 2000  San Francisco, CA  94111  email:  haim.zaltzman@lw.com   Telephone:  415-395-8870  If to the Company:    TRICIDA, INC.  Attention:  Legal Department   7000 Shoreline Court, Suite 201  South San Francisco, CA 94080  email: legal@tricida.com with a copy to spietzke@tricida.com   Telephone:  (415) 949-1491  with a copy to (which shall not constitute notice):  SIDLEY AUSTIN LLP  Attention: Geoffrey W. Levin  787 Seventh Avenue  New York, NY 10019  Email: glevin@sidley.com  Telephone: 212-839-5776    or to such other address as each party may designate for itself by like notice.  (h) Entire Agreement; Amendments.  This Agreement constitutes the entire  agreement and understanding of the parties hereto in respect of the subject matter hereof, and  supersedes and replaces in their entirety any prior proposals, term sheets, letters, negotiations or  





 






  other documents or agreements, whether written or oral, with respect to the subject matter hereof.   None of the terms of this Agreement may be amended except by an instrument executed by each  of the parties hereto.  (i) Headings.  The various headings in this Agreement are inserted for  convenience only and shall not affect the meaning or interpretation of this Agreement or any  provisions hereof.  (j) No Strict Construction.  The parties hereto have participated jointly in  the negotiation and drafting of this Agreement.  In the event an ambiguity or question of intent or  interpretation arises, this Agreement shall be construed as if drafted jointly by the parties hereto  and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of  the authorship of any provisions of this Agreement.  (k) No Waiver.  No omission or delay by the Warrantholder at any time to  enforce any right or remedy reserved to it, or to require performance of any of the terms,  covenants or provisions hereof by the Company at any time designated, shall be a waiver of any  such right or remedy to which the Warrantholder is entitled, nor shall it in any way affect the  right of the Warrantholder to enforce such provisions thereafter.  (l) Survival.  All agreements, representations and warranties contained in  this Agreement or in any document delivered pursuant hereto shall be for the benefit of the  Warrantholder or Company, as applicable, and shall survive the execution and delivery of this  Agreement and the expiration or other termination of this Agreement.  (m) Governing Law.  This Agreement has been negotiated and delivered to  Warrantholder in the State of California, and shall have been accepted by the Warrantholder in  the State of California.  Delivery of Common Stock to the Warrantholder by the Company under  this Agreement is due in the State of California.  This Agreement shall be governed by, and  construed and enforced in accordance with, the laws of the State of California, excluding conflict  of laws principles that would cause the application of laws of any other jurisdiction.  (n) Consent to Jurisdiction and Venue.  All judicial proceedings arising in or  under or related to this Agreement may be brought in any state or federal court of competent  jurisdiction located in the State of California.  By execution and delivery of this Agreement, each  party hereto generally and unconditionally: (a) consents to nonexclusive personal jurisdiction in  San Mateo County, State of California; (b) waives any objection as to jurisdiction or venue in San  Mateo County, State of California; (c) agrees not to assert any defense based on lack of  jurisdiction or venue in the aforesaid courts; and (d) irrevocably agrees to be bound by any  judgment rendered thereby in connection with this Agreement or the other Loan Documents.   Service of process on any party hereto in any action arising out of or relating to this Agreement  shall be effective if given in accordance with the requirements for notice set forth in  Section 12(g), and shall be deemed effective and received as set forth in Section 12(g).  Nothing  herein shall affect the right to serve process in any other manner permitted by law or shall limit  the right of either party to bring proceedings in the courts of any other jurisdiction.  (o) Mutual Waiver of Jury Trial/ Judicial Reference.    (i) Because disputes arising in connection with complex financial  transactions are most quickly and economically resolved by an experienced and expert Person  and the parties wish applicable state and federal laws to apply (rather than arbitration rules), the  





 






  parties desire that their disputes be resolved by a judge applying such applicable laws.  EACH OF  THE COMPANY AND THE WARRANTHOLDER SPECIFICALLY WAIVES ANY RIGHT  IT MAY HAVE TO TRIAL BY JURY OF ANY CAUSE OF ACTION, CLAIM, CROSS- CLAIM, COUNTERCLAIM, THIRD PARTY CLAIM OR ANY OTHER CLAIM  (COLLECTIVELY, “CLAIMS”) ASSERTED BY THE COMPANY AGAINST THE  WARRANTHOLDER OR ITS ASSIGNEE OR BY THE WARRANTHOLDER OR ITS  ASSIGNEE AGAINST THE COMPANY.  This waiver extends to all such Claims, including  Claims that involve Persons other than Company and Warrantholder; Claims that arise out of or  are in any way connected to the relationship between the Company and the Warrantholder; and  any Claims for damages, breach of contract, tort, specific performance, or any equitable or legal  relief of any kind, arising out of this Agreement.    (ii) If the waiver of jury trial set forth in Section 12(o)(i) above is  ineffective or unenforceable, the parties agree that all Claims shall be resolved by reference to a  private judge sitting without a jury, pursuant to California Code of Civil Procedure Section 638,  before a mutually acceptable referee or, if the parties cannot agree, a referee selected by the  Presiding Judge of San Mateo County, California.  Such proceeding shall be conducted in San  Mateo County, California, with California rules of evidence and discovery applicable to such  proceeding.   (iii) In the event Claims are to be resolved by judicial reference,  either party may seek from a court of competent jurisdiction identified in Section 12(n), any  prejudgment order, writ or other relief and have such prejudgment order, writ or other relief  enforced to the fullest extent permitted by law notwithstanding that all Claims are otherwise  subject to resolution by judicial reference.  (p) Counterparts.  This Agreement and any amendments, waivers, consents  or supplements hereto may be executed in any number of counterparts, and by different parties  hereto in separate counterparts, each of which when so delivered shall be deemed an original, but  all of which counterparts shall constitute but one and the same instrument.    [Remainder of Page Intentionally Left Blank]  





 






  IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed  by its officers thereunto duly authorized as of the Effective Date.    COMPANY: TRICIDA, INC.    By:   Name:   Title:     WARRANTHOLDER:   HERCULES CAPITAL, INC.    By:   Name:   Title:   





 






  EXHIBIT  I  NOTICE  OF  EXERCISE  To: Tricida, Inc.  (1) The undersigned Warrantholder hereby elects to purchase [_______] shares of the  Common Stock of Tricida, Inc., pursuant to the terms of the Warrant Agreement dated  [_______] (the “Agreement”) between Tricida, Inc. and the Warrantholder, and [CASH  PAYMENT: tenders herewith payment of the Purchase Price in full, together with all  applicable transfer taxes, if any.] [NET ISSUANCE: elects pursuant to Section 3(a) of the  Agreement to effect a Net Issuance.]  (2) Please issue a certificate or certificates representing said shares of Common Stock in the  name of the undersigned or in such other name as is specified below.       (Name)       (Address)    WARRANTHOLDER:   HERCULES CAPITAL, INC.    By:   Name:   Title:   Date:     





 






  EXHIBIT II  ACKNOWLEDGMENT OF EXERCISE    The undersigned Tricida, Inc., hereby acknowledges receipt of the “Notice of Exercise”  from Hercules Capital, Inc., to purchase [____] shares of the Common Stock of Tricida, Inc.,  pursuant to the terms of the Warrant Agreement by and between Tricida, Inc. and Hercules  Capital, Inc., dated [_______] (the “Agreement”), and further acknowledges that [______] shares  of Common Stock remain subject to purchase under the terms of the Agreement.    COMPANY: Tricida, Inc.  By:   Title:   Date:     





 






  EXHIBIT III  TRANSFER NOTICE  (To transfer or assign the foregoing Agreement execute this form and supply required  information.  Do not use this form to purchase shares.)  FOR VALUE RECEIVED, the foregoing Agreement and all rights evidenced thereby are hereby  transferred and assigned to      (Please Print)  whose address is         Dated:   Holder’s Signature:   Holder’s Address:        Signature Guaranteed:     NOTE:  The signature to this Transfer Notice must correspond with the name as it appears on the  face of the Agreement, without alteration or enlargement or any change whatever. Officers of  corporations and those acting in a fiduciary or other representative capacity should file proper evidence of  authority to assign the foregoing Agreement.      





 






  EXHIBIT J  FORM OF WARRANT FOR HERCULES TECHNOLOGY III, L.P.     THIS WARRANT, AND THE SECURITIES ISSUABLE UPON THE EXERCISE OF THIS  WARRANT, HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS  AMENDED (THE “ACT”), OR ANY STATE SECURITIES LAWS.  THEY MAY NOT BE  SOLD, OFFERED FOR SALE, PLEDGED, OR HYPOTHECATED IN THE ABSENCE OF AN  EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF  COUNSEL (WHICH MAY BE COMPANY COUNSEL) REASONABLY SATISFACTORY TO  THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE ACT, OR  ANY APPLICABLE STATE SECURITIES LAWS.  WARRANT AGREEMENT  To Purchase Shares of Common Stock of  Tricida, Inc.  Dated as of [     ] (the “Effective Date”)  WHEREAS, Tricida, Inc., a Delaware corporation, has entered into a Loan and Security  Agreement, dated as of February 28, 2018 (as amended by that certain First Amendment to Loan  and Security Agreement and First Amendment to Warrants, dated as of April 10, 2018, that certain  Second Amendment to Loan and Security Agreement, dated as of October 15, 2018, and that certain  Third Amendment to Loan and Security Agreement, dated as of March 27, 2019, and as further  amended, modified or supplemented from time to time, the “Loan Agreement”), with Hercules  Capital, Inc., a Maryland corporation, in its capacity as administrative and collateral agent,  Hercules Technology III, L.P., a Delaware limited partnership (the “Warrantholder”) and the other  lender parties thereto;  WHEREAS, the Company (as defined below) desires to grant to the Warrantholder, in  consideration for, among other things, the financial accommodations provided for in the Loan  Agreement, the right to purchase shares of Common Stock (as defined below) pursuant to this  Warrant Agreement (the “Agreement”);  NOW, THEREFORE, in consideration of the Warrantholder executing and delivering the Loan  Agreement and providing the financial accommodations contemplated therein, and in consideration  of the mutual covenants and agreements contained herein, the Company and the Warrantholder  agree as follows:  SECTION 1. GRANT OF THE RIGHT TO PURCHASE COMMON STOCK.    For value received, the Company hereby grants to the Warrantholder, and the Warrantholder is  entitled, upon the terms and subject to the conditions hereinafter set forth, to subscribe for and  purchase, from the Company, an aggregate number of fully paid and non-assessable shares of  Common Stock equal to the quotient derived by dividing (a) the Warrant Coverage (as defined  below) by (b) the Exercise Price (as defined below). The Exercise Price of such shares are subject  





 






  to adjustment as provided in Section 8.  As used herein, the following terms shall have the following  meanings:  “Act” means the Securities Act of 1933, as amended.  “Charter” means the Company’s Certificate of Incorporation, as may be amended from  time to time.  “Common Stock” means the Company’s common stock, $0.001 par value per share.  “Company” means Tricida, Inc., a Delaware corporation.  “Exercise Price” means $23.92.  “Merger Event” means any sale, lease, exclusive license or other transfer of all or  substantially all assets of the Company or any merger or consolidation involving the  Company in which the Company is not the surviving entity, or in which the outstanding  shares of the Company’s capital stock are otherwise converted into or exchanged for shares  of common stock, preferred stock, other securities or property of another entity; other than  any such consolidation, merger or reorganization in which the shares of capital stock of the  Company immediately prior to such consolidation, merger or reorganization, continue to  represent a majority of the voting power of the surviving entity (or, if the surviving entity  is a wholly owned subsidiary, its parent) immediately after such consolidation, merger or  reorganization (provided that, all shares of Common Stock issuable upon exercise of  options or warrants outstanding immediately prior to such consolidation or merger or upon  conversion of convertible securities outstanding immediately prior to such merger or  consolidation shall be deemed to be outstanding immediately prior to such merger or  consolidation and, if applicable, converted or exchanged in such merger or consolidation  on the same terms as the actual outstanding shares of capital stock are converted or  exchanged).  “Purchase Price” means, with respect to any exercise of this Agreement, an amount equal  to the Exercise Price as of the relevant time multiplied by the number of shares of Common  Stock requested to be exercised under this Agreement pursuant to such exercise.  “Warrant Coverage” means [1.00% of such amount advanced under Tranche 1-A, Tranche  1-B, Tranche 1-C or Tranche 1-D (as defined and set forth in the Loan Agreement), as  applicable to the tranche under which the Agreement was entered into by the parties hereto  in connection with the Term Loan Advance (as defined in the Loan Agreement)]1.  SECTION 2. TERM OF THE AGREEMENT.  Except as otherwise provided for herein, the term of this Agreement and the right to purchase  Common Stock as granted herein (the “Warrant”) shall commence on the Effective Date and shall    1 Note: Warrantholder to complete based off of applicable Tranche.   





 






  be exercisable for a period ending upon the earliest to occur of (i) [  ]2, or (ii) immediately prior  to the closing of a Merger Event  (the “Exercise Period”).  SECTION 3. EXERCISE OF THE PURCHASE RIGHTS.  (a) Exercise.  The purchase rights set forth in this Agreement are exercisable  by the Warrantholder, in whole or in part, at any time, or from time to time, prior to the expiration  of the Exercise Period, by tendering to the Company at its principal office a notice of exercise in  the form attached hereto as Exhibit I (the “Notice of Exercise”), duly completed and executed.   Promptly upon receipt of the Notice of Exercise and the payment of the Purchase Price in  accordance with the terms set forth below, and in no event later than five (5) days thereafter, the  Company shall issue to the Warrantholder a certificate for the number of shares of Common  Stock purchased and shall execute the acknowledgment of exercise in the form attached hereto as  Exhibit II (the “Acknowledgment of Exercise”) indicating the number of shares which remain  subject to future purchases under this Warrant, if any.  The Purchase Price may be paid at the Warrantholder’s election either (i) by cash or check, or (ii)  by surrender of all or a portion of the Warrant for shares of Common Stock to be exercised under  this Agreement and, if applicable, an amended Agreement representing the remaining number of  shares purchasable hereunder, as determined below (“Net Issuance”).  If the Warrantholder elects  the Net Issuance method, the Company will issue shares of Common Stock in accordance with the  following formula:  X = Y(A-B)  A   Where: X =  the number of shares of Common Stock to be issued to the Warrantholder.  Y =  the number of shares of Common Stock requested to be purchased under  this Agreement.  A =  the fair market value of one (1) share of Common Stock at the time of  issuance of such shares of Common Stock.  B =  the Exercise Price.  For purposes of the above calculation, current fair market value of Common Stock shall mean with  respect to each share of Common Stock:  (A) if the Common Stock is traded on a securities exchange,  the fair market value shall be deemed to be the average of the closing  prices over a five (5) trading day period ending three (3) days before the  day the current fair market value of the securities is being determined; or  (B) if the Common Stock is traded over-the-counter, the fair  market value shall be deemed to be the average of the closing bid and  asked price quoted on the NASDAQ system (or similar system) over the    2 Note: To be seven (7) years from the date of issuance.  





 






  five (5) trading day period ended three (3) days before the day the current  fair market value of the securities is being determined;  (i) if at any time the Common Stock is not listed on any securities  exchange or quoted in the NASDAQ National Market or the over-the-counter market, the current  fair market value of Common Stock shall be the highest price per share which the Company could  reasonably expect to obtain from a willing buyer (not a current employee or director) for shares of  Common Stock sold by the Company, from authorized but unissued shares, as determined in  good faith by its Board of Directors (provided that if the Company is then in possession of a  recent valuation of the Company’s Common Stock, the Board of Directors may rely on such  valuation), unless the Notice of Exercise is delivered in connection with a Merger Event, in which  case the fair market value of Common Stock shall be deemed to be the per share value received  by the holders of the Company’s Common Stock on a common equivalent basis pursuant to such  Merger Event.  Upon partial exercise by either cash or Net Issuance, the Company shall promptly issue an amended  Agreement representing the remaining number of shares purchasable hereunder. All other terms  and conditions of such amended Agreement shall be identical to those contained herein, including,  but not limited to the Effective Date hereof and Exercise Period.  (b) Exercise Prior to Expiration.  To the extent this Agreement is not  previously exercised as to all shares of Common Stock subject hereto, and if the fair market value  of one share of the Common Stock is greater than the Exercise Price then in effect, this  Agreement shall be deemed automatically exercised pursuant to Section 3(a) (even if not  surrendered) as of the last day of the Exercise Period.  For purposes of such automatic exercise,  the fair market value of one share of the Common Stock upon such expiration shall be determined  pursuant to Section 3(a).  To the extent this Agreement or any portion thereof is deemed  automatically exercised pursuant to this Section 3(b), the Company agrees to promptly notify the  Warrantholder of the number of shares of Common Stock, if any, the Warrantholder is to receive  by reason of such automatic exercise.  SECTION 4. RESERVATION OF SHARES.  During the term of this Agreement, the Company will at all times have authorized and reserved a  sufficient number of shares of its Common Stock to provide for the exercise of the rights to  purchase Common Stock as provided for herein.  SECTION 5. NO FRACTIONAL SHARES OR SCRIP.  No fractional shares or scrip representing fractional shares shall be issued upon the exercise of this  Agreement, but in lieu of such fractional shares, the Company shall make a cash payment therefor  equal to such fraction multiplied by the then fair market value of one share of Common Stock.  SECTION 6. NO RIGHTS AS STOCKHOLDER.  This Agreement does not entitle the Warrantholder to any voting rights or other rights as a  stockholder of the Company prior to the exercise of this Agreement.  SECTION 7. WARRANTHOLDER REGISTRY.  





 






  The Company shall maintain a registry showing the name and address of the registered holder of  this Agreement.  The Warrantholder’s initial address, for purposes of such registry, is set forth  below the Warrantholder’s signature on this Agreement.  The Warrantholder may change such  address by giving written notice of such changed address to the Company.  SECTION 8. ADJUSTMENT RIGHTS.  The Exercise Price and the number of shares of Common Stock purchasable hereunder are subject  to adjustment, as follows:  (a) Merger Event.  If at any time there shall be a Merger Event, then, as a  part of such Merger Event, lawful provision shall be made so that the Warrantholder shall  be  entitled to receive, concurrently with the closing of such Merger Event, the number of shares of  Common Stock or other securities or property, if any, (collectively, “Reference Property”) that  the Warrantholder would have received in connection with such Merger Event if Warrantholder  had exercised this Agreement immediately prior to the Merger Event pursuant to the Net Issuance  provisions of this Warrant Agreement without actually exercising such right.   (b) Reclassification of Shares.  Except for Merger Events subject to Section  8(a), if the Company at any time shall, by combination, reclassification, exchange or subdivision  of securities or otherwise, change any of the securities as to which purchase rights under this  Agreement exist into the same or a different number of securities of any other class or classes,  this Agreement shall thereafter represent the right to acquire such number and kind of securities  as would have been issuable as the result of such change with respect to the securities which were  subject to the purchase rights under this Agreement immediately prior to such combination,  reclassification, exchange, subdivision or other change. The provisions of this Section 8(b) shall  similarly apply to any successive combination, reclassification, exchange, subdivision or other  change.  (c) Subdivision or Combination of Shares.  If the Company at any time shall  combine or subdivide its Common Stock, (i) in the case of a subdivision, the Exercise Price shall  be proportionately decreased and the number of shares of Common Stock issuable hereunder  shall be proportionately increased, or (ii) in the case of a combination, the Exercise Price shall be  proportionately increased and the number of shares of Common Stock issuable hereunder shall be  proportionately decreased.   (d) Timely Notice.  The Warrantholder shall retain the benefit of the  applicable notice period notwithstanding anything to the contrary contained in any insufficient  notice received by the Warrantholder.   SECTION 9. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE  COMPANY.  (a) Reservation of Common Stock.  The Common Stock issuable upon  exercise of this Agreement has been duly and validly reserved and, when issued in accordance  with the provisions of this Agreement, will be validly issued, fully paid and non-assessable, and  will be free of any taxes, liens, charges or encumbrances created by the Company; provided, that  the Common Stock issuable pursuant to this Agreement may be subject to restrictions on transfer  under state and/or federal securities laws.  The Company has made available to the Warrantholder  true, correct and complete copies of its Charter and current bylaws as of the Effective Date. The  issuance of certificates for shares of Common Stock upon exercise of this Agreement shall be  





 






  made without charge to the Warrantholder for any issuance tax in respect thereof, or other cost  incurred by the Company in connection with such exercise and the related issuance of shares of  Common Stock; provided, that the Company shall not be required to pay any tax which may be  payable in respect of any transfer and the issuance and delivery of any certificate in a name other  than that of the Warrantholder.  (b) Due Authority.  The execution and delivery by the Company of this  Agreement and the performance of all obligations of the Company hereunder, including the  issuance to the Warrantholder of the right to acquire the shares of Common Stock, have been duly  authorized by all necessary corporate action on the part of the Company.  This Agreement: (i)  does not violate the Charter or the Company’s current bylaws; (ii) does not contravene any law or  governmental rule, regulation or order applicable to the Company; and (iii) does not contravene  any provision of, or constitute a default under, any indenture, mortgage, contract or other  instrument to which the Company is a party or by which it is bound.  This Agreement constitutes  a legal, valid and binding agreement of the Company, enforceable in accordance with its terms,  except (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium or other  laws of general application affecting enforcement of creditors’ rights and (b) as limited by general  principles of equity that restrict the availability of equitable remedies.  (c) Consents and Approvals.  No consent or approval of, giving of notice to,  registration with, or taking of any other action in respect of any state, federal or other  governmental authority or agency is required with respect to the execution, delivery and  performance by the Company of its obligations under this Agreement, except for the filing of  notices pursuant to Regulation D under the Act and any filing required by applicable state  securities law, which filings will be effective by the time required thereby.  (d) Registration Rights.  The Company agrees that the shares of Common  Stock issued upon exercise of this Warrant shall have the “Piggyback” and S-3 registration rights  pursuant to and as set forth in the Company’s Amended and Restated Investor Rights Agreement,  dated November 7, 2017, as amended from time to time (the “Investor Rights Agreement”) on a  pari passu basis with the holders of outstanding shares of Registrable Securities (as defined in the  Investor Rights Agreement) who are parties thereto. The provisions set forth in the Company’s  Investor Rights Agreement or similar agreement relating to such registration rights in effect as of  the Effective Date may not be amended, modified or waived without the prior written consent of  the Warrantholder unless such amendment, modification or waiver affects the rights associated  with the shares of Common Stock issued and issuable upon exercise hereof in the same manner as  such amendment, modification or waiver affects the rights associated with the shares of Common  Stock held by the holders of a majority of the shares of Common Stock held by parties thereto.  (e) Exempt Transaction.  Subject to the accuracy of the Warrantholder’s  representations in Section 10, the issuance of the Common Stock upon exercise of this Agreement  will constitute a transaction exempt from (i) the registration requirements of Section 5 of the Act,  in reliance upon Section 4(a)(2) thereof, and (ii) the qualification requirements of the applicable  state securities laws.  (f) Compliance with Rule 144.  If the Warrantholder proposes to sell  Common Stock issuable upon the exercise of this Agreement in compliance with Rule 144  promulgated by the SEC, then, upon the Warrantholder’s written request to the Company, the  Company shall furnish to the Warrantholder, within ten days after receipt of such request, a  written statement confirming the status of the Company’s compliance with the filing requirements  of the SEC as set forth in such Rule, as such Rule may be amended from time to time.  





 






  SECTION 10. REPRESENTATIONS AND COVENANTS OF THE WARRANTHOLDER.  This Agreement has been entered into by the Company in reliance upon the following  representations and covenants of the Warrantholder:  (a) Investment Purpose.  The right to acquire Common Stock is being  acquired for investment and not with a view to the sale or distribution of any part thereof, and the  Warrantholder has no present intention of selling or engaging in any public distribution of such  rights or the Common Stock except pursuant to an effective registration statement or an  exemption from the registration requirements of the Act.  (b) Private Issue.  The Warrantholder understands (i) that the Common  Stock issuable upon exercise of this Agreement is not registered under the Act or qualified under  applicable state securities laws on the ground that the issuance contemplated by this Agreement  will be exempt from the registration and qualifications requirements thereof, and (ii) that the  Company’s reliance on such exemption is predicated on the representations set forth in this  Section 10.  (c) Financial Risk.  The Warrantholder has such knowledge and experience  in financial and business matters as to be capable of evaluating the merits and risks of its  investment, and has the ability to bear the economic risks of its investment.  (d) Risk of No Registration.  The Warrantholder understands that if the  Company does not register with the SEC pursuant to Section 12 of the Securities Exchange Act of  1934 (the “1934 Act”), or file reports pursuant to Section 15(d) of the 1934 Act, or if a  registration statement covering the securities under the Act is not in effect when it desires to sell  (i) the rights to purchase Common Stock pursuant to this Agreement or (ii) the Common Stock  issuable upon exercise of the right to purchase, it may be required to hold such securities for an  indefinite period.  The Warrantholder also understands that any sale of (A) its rights hereunder to  purchase Common Stock or (B) Common Stock issued or issuable hereunder which might be  made by it in reliance upon Rule 144 under the Act may be made only in accordance with the  terms and conditions of that Rule.  (e) Accredited Investor.  The Warrantholder is an “accredited investor”  within the meaning of the Securities and Exchange Rule 501 of Regulation D, as presently in  effect.  (f) For purposes of the rights contemplated by Section 9(d) of this  Agreement, upon exercise of the Warrant, the Warrantholder hereby agrees to be bound by and  subject to the terms and provisions of the Investor Rights Agreement as if the Warrantholder was  an “Investor” (as defined in the Investor Rights Agreement) party thereto.  SECTION 11. TRANSFERS.  Subject to compliance with applicable federal and state securities laws, this Agreement and all  rights hereunder are transferable, in whole or in part, without charge to the holder hereof (except  for transfer taxes) upon surrender of this Agreement properly endorsed; provided, however, that if  there is not then any ongoing Event of Default (as defined in the Loan Agreement), then such  transfer shall be subject to the prior written consent of the Company; provided further, that  notwithstanding the foregoing, any such transfer to an Affiliate (as defined in the Loan Agreement)  of the Warrantholder shall be allowed at any time without the prior written consent of the Company.   





 






  Each taker and holder of this Agreement, by taking or holding the same, consents and agrees that  this Agreement, when endorsed in blank, shall be deemed negotiable, and that the holder hereof,  when this Agreement shall have been so endorsed and its transfer recorded on the Company’s  books, shall be treated by the Company and all other persons dealing with this Agreement as the  absolute owner hereof for any purpose and as the person entitled to exercise the rights represented  by this Agreement.  The transfer of this Agreement shall be recorded on the books of the Company  upon receipt by the Company of a notice of transfer in the form attached hereto as Exhibit III (the  “Transfer Notice”), at its principal offices and the payment to the Company of all transfer taxes and  other governmental charges imposed on such transfer.  Until the Company receives such Transfer  Notice, the Company may treat the registered owner hereof as the owner for all purposes. The  Warrantholder may not transfer this Warrant to a competitor of the Company, as reasonably  determined by the Board of Directors.   SECTION 12. MISCELLANEOUS.  (a) Effective Date.  The provisions of this Agreement shall be construed and  shall be given effect in all respects as if it had been executed and delivered by the Company on  the date hereof.  This Agreement shall be binding upon any successors or assigns of the  Company.  (b) Remedies.  In the event of any default hereunder, the non-defaulting  party may proceed to protect and enforce its rights either by suit in equity and/or by action at law,  including but not limited to an action for damages as a result of any such default, and/or an action  for specific performance for any default where the Warrantholder will not have an adequate  remedy at law and where damages will not be readily ascertainable. The Company expressly  agrees that it shall not oppose an application by the Warrantholder or any other person entitled to  the benefit of this Agreement requiring specific performance of any or all provisions hereof or  enjoining the Company from continuing to commit any such breach of this Agreement.  (c) No Impairment of Rights.  The Company will not, by amendment of its  Charter or through any other means, avoid or seek to avoid the observance or performance of any  of the terms of this Agreement, but will at all times in good faith assist in the carrying out of all  such terms and in the taking of all such actions as may be necessary or appropriate in order to  protect the rights of the Warrantholder against impairment.  (d) Additional Documents.  The Company, upon execution of this  Agreement, shall provide the Warrantholder with a certified copy of resolutions of the  Company’s board of directors evidencing approval of this Agreement and the reservation of the  shares of Common Stock issuable upon exercise of the Warrant.  (e) Attorney’s Fees.  In any litigation, arbitration or court proceeding  between the Company and the Warrantholder relating hereto, the prevailing party shall be entitled  to attorneys’ fees and expenses and all costs of proceedings incurred in enforcing this Agreement.   For the purposes of this Section 12(e), attorneys’ fees shall include without limitation fees  incurred in connection with the following: (i) contempt proceedings; (ii) discovery; (iii) any  motion, proceeding or other activity of any kind in connection with an insolvency proceeding;  (iv) garnishment, levy, and debtor and third party examinations; and (v) post-judgment motions  and proceedings of any kind, including without limitation any activity taken to collect or enforce  any judgment.  





 






  (f) Severability.  In the event any one or more of the provisions of this  Agreement shall for any reason be held invalid, illegal or unenforceable, the remaining provisions  of this Agreement shall be unimpaired, and the invalid, illegal or unenforceable provision shall be  replaced by a mutually acceptable valid, legal and enforceable provision, which comes closest to  the intention of the parties underlying the invalid, illegal or unenforceable provision.  (g) Notices.  Except as otherwise provided herein, any notice, demand,  request, consent, approval, declaration, service of process or other communication that is  required, contemplated, or permitted under this Agreement or with respect to the subject matter  hereof shall be in writing, and shall be deemed to have been validly served, given, delivered, and  received upon the earlier of: (i) the day of transmission by electronic mail or hand delivery if  transmission or delivery occurs on a business day at or before 5:00 pm in the time zone of the  recipient, or, if transmission or delivery occurs on a non-business day or after such time, the first  business day thereafter, or the first business day after deposit with an overnight express service or  overnight mail delivery service; or (ii) the third (3rd) calendar day after deposit in the United  States mails, with proper first class postage prepaid, and shall be addressed to the party to be  notified as follows:  If to the Warrantholder:  HERCULES TECHNOLOGY III, L.P.  Legal Department  Attention:  Chief Legal Officer and Himani Bhalla  400 Hamilton Avenue, Suite 310  Palo Alto, CA 94301  Email:legal@herculestech.com; hbhalla@htgc.com  Telephone:  650-289-3060  with a copy to (which shall not constitute notice):  LATHAM & WATKINS LLP  Attention:  Haim Zaltzman   505 Montgomery Street, Suite 2000  San Francisco, CA  94111  email:  haim.zaltzman@lw.com   Telephone:  415-395-8870  If to the Company:    TRICIDA, INC.  Attention:  Legal Department   7000 Shoreline Court, Suite 201  South San Francisco, CA 94080  email: legal@tricida.com with a copy to  spietzke@tricida.com   Telephone:  (415) 949-1491  with a copy to (which shall not constitute notice):  SIDLEY AUSTIN LLP  Attention: Geoffrey W. Levin  787 Seventh Avenue  





 






  New York, NY 10019  Email: glevin@sidley.com  Telephone: 212-839-5776    or to such other address as each party may designate for itself by like notice.  (h) Entire Agreement; Amendments.  This Agreement constitutes the entire  agreement and understanding of the parties hereto in respect of the subject matter hereof, and  supersedes and replaces in their entirety any prior proposals, term sheets, letters, negotiations or  other documents or agreements, whether written or oral, with respect to the subject matter hereof.   None of the terms of this Agreement may be amended except by an instrument executed by each  of the parties hereto.  (i) Headings.  The various headings in this Agreement are inserted for  convenience only and shall not affect the meaning or interpretation of this Agreement or any  provisions hereof.  (j) No Strict Construction.  The parties hereto have participated jointly in  the negotiation and drafting of this Agreement.  In the event an ambiguity or question of intent or  interpretation arises, this Agreement shall be construed as if drafted jointly by the parties hereto  and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of  the authorship of any provisions of this Agreement.  (k) No Waiver.  No omission or delay by the Warrantholder at any time to  enforce any right or remedy reserved to it, or to require performance of any of the terms,  covenants or provisions hereof by the Company at any time designated, shall be a waiver of any  such right or remedy to which the Warrantholder is entitled, nor shall it in any way affect the  right of the Warrantholder to enforce such provisions thereafter.  (l) Survival.  All agreements, representations and warranties contained in  this Agreement or in any document delivered pursuant hereto shall be for the benefit of the  Warrantholder or Company, as applicable, and shall survive the execution and delivery of this  Agreement and the expiration or other termination of this Agreement.  (m) Governing Law.  This Agreement has been negotiated and delivered to  Warrantholder in the State of California, and shall have been accepted by the Warrantholder in  the State of California.  Delivery of Common Stock to the Warrantholder by the Company under  this Agreement is due in the State of California.  This Agreement shall be governed by, and  construed and enforced in accordance with, the laws of the State of California, excluding conflict  of laws principles that would cause the application of laws of any other jurisdiction.  (n) Consent to Jurisdiction and Venue.  All judicial proceedings arising in or  under or related to this Agreement may be brought in any state or federal court of competent  jurisdiction located in the State of California.  By execution and delivery of this Agreement, each  party hereto generally and unconditionally: (a) consents to nonexclusive personal jurisdiction in  San Mateo County, State of California; (b) waives any objection as to jurisdiction or venue in San  Mateo County, State of California; (c) agrees not to assert any defense based on lack of  jurisdiction or venue in the aforesaid courts; and (d) irrevocably agrees to be bound by any  judgment rendered thereby in connection with this Agreement or the other Loan Documents.   Service of process on any party hereto in any action arising out of or relating to this Agreement  shall be effective if given in accordance with the requirements for notice set forth in  





 






  Section 12(g), and shall be deemed effective and received as set forth in Section 12(g).  Nothing  herein shall affect the right to serve process in any other manner permitted by law or shall limit  the right of either party to bring proceedings in the courts of any other jurisdiction.  (o) Mutual Waiver of Jury Trial/ Judicial Reference.    (i) Because disputes arising in connection with complex financial  transactions are most quickly and economically resolved by an experienced and expert Person  and the parties wish applicable state and federal laws to apply (rather than arbitration rules), the  parties desire that their disputes be resolved by a judge applying such applicable laws.  EACH OF  THE COMPANY AND THE WARRANTHOLDER SPECIFICALLY WAIVES ANY RIGHT  IT MAY HAVE TO TRIAL BY JURY OF ANY CAUSE OF ACTION, CLAIM, CROSS- CLAIM, COUNTERCLAIM, THIRD PARTY CLAIM OR ANY OTHER CLAIM  (COLLECTIVELY, “CLAIMS”) ASSERTED BY THE COMPANY AGAINST THE  WARRANTHOLDER OR ITS ASSIGNEE OR BY THE WARRANTHOLDER OR ITS  ASSIGNEE AGAINST THE COMPANY.  This waiver extends to all such Claims, including  Claims that involve Persons other than Company and Warrantholder; Claims that arise out of or  are in any way connected to the relationship between the Company and the Warrantholder; and  any Claims for damages, breach of contract, tort, specific performance, or any equitable or legal  relief of any kind, arising out of this Agreement.    (ii) If the waiver of jury trial set forth in Section 12(o)(i) above is  ineffective or unenforceable, the parties agree that all Claims shall be resolved by reference to a  private judge sitting without a jury, pursuant to California Code of Civil Procedure Section 638,  before a mutually acceptable referee or, if the parties cannot agree, a referee selected by the  Presiding Judge of San Mateo County, California.  Such proceeding shall be conducted in San  Mateo County, California, with California rules of evidence and discovery applicable to such  proceeding.   (iii) In the event Claims are to be resolved by judicial reference,  either party may seek from a court of competent jurisdiction identified in Section 12(n), any  prejudgment order, writ or other relief and have such prejudgment order, writ or other relief  enforced to the fullest extent permitted by law notwithstanding that all Claims are otherwise  subject to resolution by judicial reference.  (p) Counterparts.  This Agreement and any amendments, waivers, consents  or supplements hereto may be executed in any number of counterparts, and by different parties  hereto in separate counterparts, each of which when so delivered shall be deemed an original, but  all of which counterparts shall constitute but one and the same instrument.    [Remainder of Page Intentionally Left Blank]  





 






  IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed  by its officers thereunto duly authorized as of the Effective Date.    COMPANY: TRICIDA, INC.    By:   Name:   Title:     WARRANTHOLDER: HERCULES TECHNOLOGY III, L.P.,  a Delaware limited partnership  By: Hercules Technology SBIC Management,  LLC,    its General Partner  By: Hercules Capital, Inc.,   its Manager    By:   Name:   Title:   





 






  EXHIBIT  I  NOTICE  OF  EXERCISE  To: Tricida, Inc.  (1) The undersigned Warrantholder hereby elects to purchase [_______] shares of the  Common Stock of Tricida, Inc., pursuant to the terms of the Warrant Agreement dated  [_______] (the “Agreement”) between Tricida, Inc. and the Warrantholder, and [CASH  PAYMENT: tenders herewith payment of the Purchase Price in full, together with all  applicable transfer taxes, if any.] [NET ISSUANCE: elects pursuant to Section 3(a) of the  Agreement to effect a Net Issuance.]  (2) Please issue a certificate or certificates representing said shares of Common Stock in the  name of the undersigned or in such other name as is specified below.       (Name)       (Address)    WARRANTHOLDER:               HERCULES TECHNOLOGY III, L.P.,  a Delaware limited partnership  By:  Hercules Technology SBIC  Management, LLC,  its General Partner  By: Hercules Capital, Inc.,  its Manager  By:   Name:   Title:   Date:     





 






  EXHIBIT II  ACKNOWLEDGMENT OF EXERCISE    The undersigned Tricida, Inc., hereby acknowledges receipt of the “Notice of Exercise”  from Hercules Technology III, L.P., to purchase [____] shares of the Common Stock of Tricida,  Inc., pursuant to the terms of the Warrant Agreement by and between Tricida, Inc. and Hercules  Technology III, L.P., dated [_______] (the “Agreement”), and further acknowledges that  [______] shares of Common Stock remain subject to purchase under the terms of the Agreement.    COMPANY: Tricida, Inc.  By:   Title:   Date:     





 






       EXHIBIT III  TRANSFER NOTICE  (To transfer or assign the foregoing Agreement execute this form and supply required  information.  Do not use this form to purchase shares.)  FOR VALUE RECEIVED, the foregoing Agreement and all rights evidenced thereby are hereby  transferred and assigned to      (Please Print)  whose address is         Dated:   Holder’s Signature:   Holder’s Address:        Signature Guaranteed:     NOTE:  The signature to this Transfer Notice must correspond with the name as it appears on the  face of the Agreement, without alteration or enlargement or any change whatever. Officers of  corporations and those acting in a fiduciary or other representative capacity should file proper evidence of  authority to assign the foregoing Agreement.          





 






       SCHEDULE 1  SUBSIDIARIES  None.      





 






       SCHEDULE 1.1  COMMITMENTS    LENDER TRANCHE TERM COMMITMENT  Hercules Capital, Inc. 1-A $15,000,000  Hercules Technology III, L.P. 1-A $10,000,000  Hercules Capital, Inc. 1-B $15,000,000  Hercules Capital, Inc. 1-C $20,000,000  Hercules Capital, Inc. 1-D $5,000,000  Hercules Technology III, L.P. 1-D $10,000,000  TOTAL COMMITMENTS  $75,000,000    





 






       SCHEDULE 1A  EXISTING PERMITTED INDEBTEDNESS  1. Tenant Improvement Loan with Alexandria Real Estate, LLC, dated April 4, 2014. The  original loan was for $205,935.00. As of February 28, 2019, the balance of the loan is  $17,418.93.    2. Tenant Improvement Loan with Alexandria Real Estate, LLC, dated August 2, 2017. The  original loan was for $279,955.00. As of February 28, 2019, the balance of the loan is  $199,298.21.    





 






       SCHEDULE 1B    EXISTING PERMITTED INVESTMENTS    1. An amount equal to €4,800,000.00 pursuant to the Second Amendment to K5 Statement of  Work, effective as of October 7, 2018, by and between Patheon Austria GmbH & Co KG  (“Patheon”) and the Borrower.    2.  An amount equal to €93,625.00 pursuant to Statement of Work No. 5.3 – Stirrer Modeling,  effective as of October 5, 2018, by and between Patheon and the Borrower.    





 






       SCHEDULE 1C    EXISTING PERMITTED LIENS    None.    





 






       SCHEDULE 5.3    CONSENTS, ETC.    None.    





 






       SCHEDULE 5.5    ACTIONS BEFORE GOVERNMENTAL AUTHORITIES    None.  





 






       SCHEDULE 5.8    TAX MATTERS    None.  





 






       SCHEDULE 5.9    INTELLECTUAL PROPERTY CLAIMS    None.  





 






       SCHEDULE 5.10    INTELLECTUAL PROPERTY    None.  





 






       SCHEDULE 5.11    BORROWER PRODUCTS    None.