Exhibit 10.1


 





LOAN AND
SECURITY AGREEMENT


 


THIS LOAN AND SECURITY
AGREEMENT (this “Agreement”) dated and effective as of August 2, 2018 (the “Effective Date”)
between SILICON VALLEY BANK, a California corporation (“Bank”), and FLUIDIGM CORPORATION, a Delaware
corporation (“Borrower”), provides the terms on which Bank shall lend to Borrower and Borrower shall repay Bank.
The parties agree as follows:


 


1                    
ACCOUNTING AND OTHER TERMS


 


Accounting terms not
defined in this Agreement shall be construed following GAAP. Calculations and determinations must be made following GAAP, provided,
however, that if at any time any change in GAAP would affect the computation of any covenant or requirement set forth in any Loan
Document, and either Borrower or Lender shall so request, Borrower and Lender shall negotiate in good faith to amend such covenant
or requirement to preserve the original intent thereof in light of such change in GAAP; provided, further, that, until so amended,
(i) such covenant or requirement shall continue to be computed in accordance with GAAP prior to such change therein and (ii) Borrower
shall provide Lender financial statements and other documents required under this Agreement or as reasonably requested hereunder
setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change
in GAAP; provided, further, that (x) all obligations of any Person that are or would have been treated as operating leases for
purposes of GAAP prior to the issuance by the Financial Accounting Standards Board on February 25, 2016 of an Accounting Standards
Update (the “ASU”) shall continue to be accounted for as operating leases for purposes of all financial definitions,
calculations and covenants for purpose of this Agreement (whether or not such operating lease obligations were in effect on such
date) notwithstanding the fact that such obligations are required in accordance with the ASU (on a prospective or retroactive basis
or otherwise) to be treated as capitalized lease obligations in accordance with GAAP. Notwithstanding the foregoing, all financial
covenant (if any) and other financial calculations shall be computed with respect to Borrower only, and not on a consolidated basis.
Notwithstanding any terms in this Agreement to the contrary, for purposes of any financial covenant (if any) and other financial
calculations in this Agreement (other than for purposes of updating the Borrowing Base) which are made in whole or in part based
upon the Availability Amount as of the last day of a particular month, calculations relying on information from a Borrowing Base
Report shall be derived from the Borrowing Base Report delivered within seven (7) days of month end pursuant to Section 6.2(a)
(and not, for clarity, any more recent Borrowing Base Report delivered after such period), and the actual delivery date of such
Borrowing Base Report shall be deemed to be the last day of the applicable month. Capitalized terms not otherwise defined in this
Agreement shall have the meanings set forth in Section 13. All other terms contained in this Agreement, unless otherwise indicated,
shall have the meaning provided by the Code to the extent such terms are defined therein.


 


2                    
LOAN AND TERMS OF PAYMENT


 


2.1               
Promise to Pay. Borrower hereby unconditionally promises to pay Bank the outstanding principal amount of all Credit
Extensions and accrued and unpaid interest thereon as and when due in accordance with this Agreement.


 


2.2               
Revolving Line.


 


(a)                
Availability. Subject to the terms and conditions of this Agreement and to deduction of Reserves, Bank shall make
Advances not exceeding the Availability Amount. Amounts borrowed under the Revolving Line may be repaid and, prior to the Revolving
Line Maturity Date, reborrowed, subject to the applicable terms and conditions precedent herein.


 


(b)                
Termination; Repayment. The Revolving Line terminates on the Revolving Line Maturity Date, when the principal amount
of all Advances, the unpaid interest thereon, and all other Obligations relating to the Revolving Line shall be immediately due
and payable.


 


2.3               
Overadvances. If, at any time, the outstanding principal amount of any Advances exceeds the lesser of either the Revolving
Line or the Borrowing Base, Borrower shall immediately pay to Bank in cash the amount of such excess (such excess, the “Overadvance”).
Without limiting Borrower’s obligation to repay Bank any Overadvance, Borrower agrees to pay Bank interest on the outstanding
amount of any Overadvance, on demand, at a per annum rate equal to the rate that is otherwise applicable to Advances plus five
percent (5.0%).


 



     


     


    




2.4               
Payment of Interest on the Credit Extensions.


 


(a)                
Interest Rate. Subject to Section 2.4(b), the principal amount outstanding under the Revolving Line shall accrue
interest at the greater of (i) a floating per annum rate equal to one half of one percentage point (0.50%) above the Prime Rate
or (ii) a fixed per annum rate equal to five and one half percentage points (5.50%) which interest shall be payable monthly in
accordance with Section 2.4(d) below.


 


(b)                
Default Rate. Immediately upon the occurrence and during the continuance of an Event of Default, Obligations shall
bear interest at a rate per annum which is five percent (5.0%) above the rate that is otherwise applicable thereto (the “Default
Rate”). Fees and expenses which are required to be paid by Borrower pursuant to the Loan Documents (including, without
limitation, Bank Expenses) but are not paid when due shall bear interest until paid at a rate equal to the highest rate applicable
to the Obligations. Payment or acceptance of the increased interest rate provided in this Section 2.4(b) is not a permitted alternative
to timely payment and shall not constitute a waiver of any Event of Default or otherwise prejudice or limit any rights or remedies
of Bank.


 


(c)                
Adjustment to Interest Rate. Changes to the interest rate of any Credit Extension based on changes to the Prime Rate
shall be effective on the effective date of any change to the Prime Rate and to the extent of any such change.


 


(d)                
Payment; Interest Computation. Interest is payable monthly on the Payment Date of each month and shall be computed
on the basis of a three hundred sixty (360) day year for the actual number of days elapsed. In computing interest, (i) all payments
received after 12:00 p.m. Pacific time on any day shall be deemed received at the opening of business on the next Business Day,
and (ii) the date of the making of any Credit Extension shall be included and the date of payment shall be excluded; provided,
however, that if any Credit Extension is repaid on the same day on which it is made, such day shall be included in computing interest
on such Credit Extension.


 


2.5               
Fees. Borrower shall pay to Bank:


 


(a)                
Revolving Line Commitment Fee. A fully earned, non-refundable commitment fee of One Hundred Twelve Thousand Five
Hundred Dollars ($112,500) (the “Revolving Line Commitment Fee”) on (i) the Effective Date and (ii) the earliest
of (i) the first anniversary of the Effective Date, (ii) the date on which Borrower terminates this Agreement or (iii) the occurrence
and continuance of an Event of Default;


 


(b)                
Termination Fee. Upon termination of this Agreement or the termination of the Revolving Line for any reason prior
to the Revolving Line Maturity Date, in addition to the payment of any other amounts then-owing, a termination fee in an amount
equal to (i) two percent (2.00%) of the Revolving Line if such termination occurs prior to the first anniversary of the Effective
Date, or (ii) one percent (1.00%) of the Revolving Line if such termination occurs on or at any time after the first anniversary
of the Effective Date (the “Termination Fee”), provided that the Termination Fee shall not be charged if the
credit facility hereunder is replaced with a new facility from Bank;


 


(c)                
Unused Revolving Line Facility Fee. Payable quarterly in arrears on the last day of each calendar quarter occurring
thereafter prior to the Revolving Line Maturity Date, and on the Revolving Line Maturity Date, a fee (the “Unused Revolving
Line Facility Fee”) in an amount equal to three quarters of one percent (0.75%) per annum of the average unused portion
of the Revolving Line, as determined by Bank, computed on the basis of a year with the applicable number of days as set forth in
Section 2.4(d). The unused portion of the Revolving Line, for purposes of this calculation, shall be calculated on a calendar year
basis and shall equal the difference between (i) the Revolving Line, and (ii) the average for the period of the daily closing balance
of the Revolving Line outstanding;


 


(d)                
Good Faith Deposit. Borrower has paid to Bank a deposit of Twenty-Five Thousand Dollars ($25,000) (the “Good
Faith Deposit”) to initiate Bank’s due diligence review process, which Good Faith Deposit shall be used to pay
Bank Expenses as of the Effective Date. If any amount of the Good Faith Deposit is remaining following the payment of Bank Expenses
on the Effective Date, then such remaining amount shall be returned to Borrower.


 



     


     


    




(e)                
Bank Expenses. All Bank Expenses (including reasonable attorneys’ fees and expenses for documentation and negotiation
of this Agreement) incurred through and after the Effective Date, when due (or, if no stated due date, upon demand by Bank).


 


(f)                 
Fees Fully Earned. Unless otherwise provided in this Agreement or in a separate writing by Bank, Borrower shall not
be entitled to any credit, rebate, or repayment of any fees earned by Bank pursuant to this Agreement notwithstanding any termination
of this Agreement or the suspension or termination of Bank’s obligation to make loans and advances hereunder. Bank may deduct
amounts owing by Borrower under the clauses of this Section 2.5 pursuant to the terms of Section 2.6(c). Bank shall provide Borrower
written notice of deductions made from the Designated Deposit Account pursuant to the terms of the clauses of this Section 2.5.


 


2.6               
Payments; Application of Payments; Debit of Accounts.


 


(a)                
All payments to be made by Borrower under any Loan Document shall be made in immediately available funds in Dollars, without
setoff or counterclaim, before 12:00 p.m. Pacific time on the date when due. Payments of principal and/or interest received after
12:00 p.m. Pacific time are considered received at the opening of business on the next Business Day. When a payment is due on a
day that is not a Business Day, the payment shall be due the next Business Day, and additional fees or interest, as applicable,
shall continue to accrue until paid.


 


(b)                
Bank has the exclusive right to determine the order and manner in which all payments with respect to the Obligations may
be applied. Borrower shall have no right to specify the order or the accounts to which Bank shall allocate or apply any payments
required to be made by Borrower to Bank or otherwise received by Bank under this Agreement when any such allocation or application
is not specified elsewhere in this Agreement.


 


(c)                
Bank may debit any of Borrower’s deposit accounts, including the Designated Deposit Account, for principal and interest
payments or any other amounts Borrower owes Bank when due. These debits shall not constitute a set-off.


 


2.7               
Withholding. Payments received by Bank from Borrower under this Agreement will be made free and clear of and without
deduction for any and all present or future taxes, levies, imposts, duties, deductions, withholdings, assessments, fees or other
charges imposed by any Governmental Authority (including any interest, additions to tax or penalties applicable thereto). Specifically,
however, if at any time any Governmental Authority, applicable law, regulation or international agreement requires Borrower to
make any withholding or deduction from any such payment or other sum payable hereunder to Bank, Borrower hereby covenants and agrees
that the amount due from Borrower with respect to such payment or other sum payable hereunder will be increased to the extent necessary
to ensure that, after the making of such required withholding or deduction, Bank receives a net sum equal to the sum which it would
have received had no withholding or deduction been required, and Borrower shall pay the full amount withheld or deducted to the
relevant Governmental Authority. Borrower will, upon request, furnish Bank with proof reasonably satisfactory to Bank indicating
that Borrower has made such withholding payment; provided, however, that Borrower need not make any withholding payment if the
amount or validity of such withholding payment is contested in good faith by appropriate and timely proceedings and as to which
payment in full is bonded or reserved against by Borrower. The agreements and obligations of Borrower contained in this Section
2.7 shall survive the termination of this Agreement.


 


3                    
CONDITIONS OF LOANS


 


3.1               
Conditions Precedent to Initial Credit Extension. Bank’s obligation to make the initial Credit Extension is subject
to the condition precedent that Bank shall have received, in form and substance satisfactory to Bank, such documents, and completion
of such other matters, as Bank may reasonably deem necessary or appropriate, including, without limitation:


 



     


     


    




(a)                
duly executed original signatures to the Loan Documents;


 


(b)                
the Operating Documents and long-form good standing certificates of Borrower certified by the Secretary of State (or equivalent
agency) of Borrower’s jurisdiction of organization or formation and each jurisdiction in which Borrower is qualified to conduct
business, each as of a date no earlier than thirty (30) days prior to the Effective Date;


 


(c)                
a secretary’s certificate of Borrower with respect to such Borrower’s Operating Documents, incumbency, specimen
signatures and resolutions authorizing the execution and delivery of this Agreement and the other Loan Documents to which it is
a party;


 


(d)                
duly executed original signatures to the completed Borrowing Resolutions for Borrower;


 


(e)                
certified copies, dated as of a recent date, of financing statement searches, as Bank may request, accompanied by written
evidence (including any UCC termination statements) that the Liens indicated in any such financing statements either constitute
Permitted Liens or have been or, in connection with the initial Credit Extension, will be terminated or released;


 


(f)                 
the Perfection Certificate of Borrower, together with the duly executed original signature thereto;


 


(g)                
evidence satisfactory to Bank that the insurance policies and endorsements required by Section 6.7 hereof are in full force
and effect, together with appropriate evidence showing lender loss payable and/or additional insured clauses or endorsements in
favor of Bank;


 


(h)                
the completion of the Initial Audit;


 


(i)                  
each of the items set forth in Sections 3.3(b), (c), (d) and (e) below;


 


(j)                 
a completed Borrowing Base Report (and any schedules related thereto and including any other information requested by Bank
with respect to Borrower’s Accounts); and


 


(k)                
payment of the fees and Bank Expenses then due as specified in Section 2.5 hereof.


 


3.2               
Conditions Precedent to all Credit Extensions. Bank’s obligations to make each Credit Extension, including the
initial Credit Extension, is subject to the following conditions precedent:


 


(a)                
timely receipt of the Credit Extension request and any materials and documents required by Section 3.4;


 


(b)                
the representations and warranties in this Agreement shall be true, accurate, and complete in all material respects on the
date of the proposed Credit Extension and/or of the Payment/Advance Form, as applicable, and on the Funding Date of each Credit
Extension; provided, however, that such materiality qualifier shall not be applicable to any representations and warranties that
already are qualified or modified by materiality in the text thereof; and provided, further that those representations and warranties
expressly referring to a specific date shall be true, accurate and complete in all material respects as of such date, and no Event
of Default shall have occurred and be continuing or result from the Credit Extension. Each Credit Extension is Borrower’s
representation and warranty on that date that the representations and warranties in this Agreement remain true, accurate, and complete
in all material respects; provided, however, that such materiality qualifier shall not be applicable to any representations and
warranties that already are qualified or modified by materiality in the text thereof; and provided, further that those representations
and warranties expressly referring to a specific date shall be true, accurate and complete in all material respects as of such
date; and


 


(c)                
Bank determines to its satisfaction that there has not been a Material Adverse Change.


 



     


     


    




3.3               
Covenant to Deliver.


 


(a)       Borrower
agrees to deliver to Bank each item required to be delivered to Bank under this Agreement as a condition precedent to any Credit
Extension. Borrower expressly agrees that a Credit Extension made prior to the receipt by Bank of any such item shall not constitute
a waiver by Bank of Borrower’s obligation to deliver such item, and the making of any Credit Extension in the absence of
a required item shall be in Bank’s sole discretion.


 


(b) As soon
as possible, but in any event not later than forty-five (45) days after the Effective Date, Borrower shall deliver to Bank a landlord’s
consent in favor of Bank for Borrower’s leased location at 7000 Shoreline Court, Suite 100, San Francisco, CA 94080, by the
respective landlord thereof, together with the duly executed original signatures thereto.


 


(c)As soon
as possible, but in any event not later than forty-five (45) days after the Effective Date, Borrower shall deliver to Bank a bailee’s
waiver in favor of Bank for each location where Borrower maintains property with a third party, by each such third party, together
with the duly executed original signatures thereto. For the avoidance of doubt, only Inventory stored at a location that is subject
to a landlord consent or bailee waiver in favor of Bank shall be considered Eligible Inventory.


 


(d)       As
soon as possible, but in any event not later than thirty (30) days after the Effective Date, Bank shall have received duly executed
original signatures to the Control Agreement(s) entered into for the benefit of Bank with respect to the Bank of America Lockbox
Accounts.


 


(e)       Borrower
shall transfer cash from any securities or any other investment property held at Morgan Stanley that mature or are otherwise exchanged
for cash no later than the earlier of five (5) Business Days after such maturity or exchange or (ii) September 26, 2018 to Bank
or Bank’s Affiliates.


 


3.4               
Procedures for Borrowing. Subject to the prior satisfaction of all other applicable conditions to the making of an Advance
set forth in this Agreement, to obtain an Advance, Borrower (via an individual duly authorized by an Administrator) shall notify
Bank (which notice shall be irrevocable) by electronic mail by 12:00 p.m. Pacific time on the Funding Date of the Advance. Such
notice shall be made by Borrower through Bank’s online banking program, provided, however, if Borrower is not utilizing Bank’s
online banking program, then such notice shall be in a written format acceptable to Bank that is executed by an Authorized Signer.
Bank shall have received satisfactory evidence that the Board has approved that such Authorized Signer may provide such notices
and request Advances. In connection with any such notification, Borrower must promptly deliver to Bank by electronic mail or through
Bank’s online banking program such reports and information, including without limitation, sales journals, cash receipts journals,
accounts receivable aging reports, as Bank may request in its sole discretion. Bank shall credit proceeds of an Advance to the
Designated Deposit Account. Bank may make Advances under this Agreement based on instructions from an Authorized Signer or without
instructions if the Advances are necessary to meet Obligations which have become due.


 


4                    
CREATION OF SECURITY INTEREST


 


4.1               
Grant of Security Interest. Borrower hereby grants Bank, to secure the payment and performance in full of all of the
Obligations, a continuing security interest in, and pledges to Bank, the Collateral, wherever located, whether now owned or hereafter
acquired or arising, and all proceeds and products thereof.


 


Borrower acknowledges
that it previously has entered, and/or may in the future enter, into Bank Services Agreements with Bank. Regardless of the terms
of any Bank Services Agreement, Borrower agrees that any amounts Borrower owes Bank thereunder shall be deemed to be Obligations
hereunder and that it is the intent of Borrower and Bank to have all such Obligations secured by the first priority perfected security
interest in the Collateral granted herein (subject only to Permitted Liens) and provided further that Permitted Liens which by
operation of law have superior priority to Bank’s Lien in this Agreement are permitted to be senior to Bank’s Lien.


 


If this Agreement is
terminated, Bank’s Lien in the Collateral shall continue until the Obligations (other than inchoate indemnity obligations)
are repaid in full in cash. Upon payment in full in cash of the Obligations (other than inchoate indemnity obligations) and at
such time as Bank’s obligation to make Credit Extensions has terminated, Bank shall, at the sole cost and expense of Borrower,
release its Liens in the Collateral and all rights therein shall revert to Borrower. In the event (x) all Obligations (other than
inchoate indemnity obligations), except for Bank Services, are satisfied in full, and (y) this Agreement is terminated, Bank shall
terminate the security interest granted herein upon Borrower providing cash collateral acceptable to Bank in its good faith business
judgment for Bank Services, if any. In the event such Bank Services consist of outstanding Letters of Credit, Borrower shall provide
to Bank cash collateral in an amount equal to (x) if such Letters of Credit are denominated in Dollars, then at least one hundred
five percent (105.0%); and (y) if such Letters of Credit are denominated in a Foreign Currency, then at least one hundred ten percent
(110.0%), of the Dollar Equivalent of the face amount of all such Letters of Credit plus all interest, fees, and costs due or to
become due in connection therewith (as estimated by Bank in its business judgment), to secure all of the Obligations relating to
such Letters of Credit.


 



     


     


    




4.2               
Priority of Security Interest. Borrower represents, warrants, and covenants that the security interest granted herein
is and shall at all times continue to be a first priority perfected security interest in the Collateral (subject only to Permitted
Liens). If Borrower shall acquire a commercial tort claim, Borrower shall promptly notify Bank in a writing signed by Borrower
of the general details thereof and grant to Bank in such writing a security interest therein and in the proceeds thereof, all upon
the terms of this Agreement, with such writing to be in form and substance reasonably satisfactory to Bank.


 


4.3               
Authorization to File Financing Statements. Borrower hereby authorizes Bank to file financing statements, without notice
to Borrower, with all appropriate jurisdictions to perfect or protect Bank’s interest or rights hereunder, including a notice
that any disposition of the Collateral, by either Borrower or any other Person, shall be deemed to violate the rights of Bank under
the Code. Such financing statements may indicate the Collateral as “all assets of the Debtor” or words of similar effect,
or as being of an equal or lesser scope, or with greater detail, all in Bank’s discretion.


 


5                    
REPRESENTATIONS AND WARRANTIES


 


Borrower represents
and warrants as follows:


 


5.1               
Due Organization, Authorization; Power and Authority. Borrower is duly existing and in good standing as a Registered
Organization in its jurisdiction of formation and is qualified and licensed to do business and is in good standing in any jurisdiction
in which the conduct of its business or its ownership of property requires that it be qualified except where the failure to do
so could not reasonably be expected to have a material adverse effect on Borrower’s business. In connection with this Agreement,
Borrower has delivered to Bank a completed certificate signed by Borrower entitled “Perfection Certificate” (the “Perfection
Certificate”). Borrower represents and warrants to Bank that, except as may have been updated by a notification to Bank
pursuant to Section 7.2, (a) Borrower’s exact legal name is that indicated on the Perfection Certificate and on the signature
page hereof; (b) Borrower is an organization of the type and is organized in the jurisdiction set forth in the Perfection Certificate;
(c) the Perfection Certificate accurately sets forth Borrower’s organizational identification number or accurately states
that Borrower has none; (d) the Perfection Certificate accurately sets forth Borrower’s place of business, or, if more than
one, its chief executive office as well as Borrower’s mailing address (if different than its chief executive office); (e)
Borrower (and each of its predecessors) has not, in the past five (5) years, changed its jurisdiction of formation, organizational
structure or type, or any organizational number assigned by its jurisdiction; and (f) all other information set forth on the Perfection
Certificate pertaining to Borrower and each of its Subsidiaries is accurate and complete (it being understood and agreed that Borrower
may from time to time update certain information in the Perfection Certificate after the Effective Date to the extent permitted
by one or more specific provisions in this Agreement). If Borrower is not now a Registered Organization but later becomes one,
Borrower shall promptly notify Bank of such occurrence and provide Bank with Borrower’s organizational identification number.


 


The execution, delivery
and performance by Borrower of the Loan Documents to which it is a party have been duly authorized, and do not (i) conflict with
any of Borrower’s organizational documents, (ii) contravene, conflict with, constitute a default under or violate any material
Requirement of Law, (iii) contravene, conflict or violate any applicable order, writ, judgment, injunction, decree, determination
or award of any Governmental Authority by which Borrower or any of its Subsidiaries or any of their property or assets may be bound
or affected, (iv) require any action by, filing, registration, or qualification with, or Governmental Approval from, any Governmental
Authority (except such Governmental Approvals which have already been obtained and are in full force and effect), or (v) conflict
with, contravene, constitute a default or breach under, or result in or permit the termination or acceleration of, any material
agreement by which Borrower is bound. Borrower is not in default under any agreement to which it is a party or by which it is bound
in which the default could reasonably be expected to have a material adverse effect on Borrower’s business.


 



     


     


    




5.2               
Collateral. Borrower has good title to, rights in, and the power to transfer each item of the Collateral upon which
it purports to grant a Lien hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no Collateral Accounts
at or with any bank or financial institution other than Bank or Bank’s Affiliates except for the Collateral Accounts described
in the Perfection Certificate delivered to Bank in connection herewith and which Borrower has taken such actions as are necessary
to give Bank a perfected security interest therein, pursuant to the terms of Section 6.8(b). The Accounts are bona fide, existing
obligations of the Account Debtors.


 


The Collateral is not
in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate. None
of the components of the Collateral shall be maintained at locations other than as provided in the Perfection Certificate or as
permitted pursuant to Section 7.2.


 


All Inventory is in
all material respects of good and marketable quality, free from material defects.


 


Borrower is the sole
owner of the Intellectual Property which it owns or purports to own except for (a) non-exclusive licenses granted to its customers
in the ordinary course of business, (b) over-the-counter software that is commercially available to the public, and (c) Intellectual
Property licensed to Borrower. Each Patent which it owns or purports to own and which is material to Borrower’s business
is valid and enforceable, and no part of the Intellectual Property which Borrower owns or purports to own and which is material
to Borrower’s business has been judged invalid or unenforceable, in whole or in part. To the best of Borrower’s knowledge,
no claim has been made that any part of the Intellectual Property violates the rights of any third party except to the extent such
claim would not reasonably be expected to have a material adverse effect on Borrower’s business.


 


Except as listed on
the Perfection Certificate, or as notified to Bank pursuant to Section 6.10, Borrower is not a party to, nor is it bound by, any
Restricted License.


 


5.3               
Accounts Receivable; Inventory.


 


(a)                
For each Account with respect to which Advances are requested, on the date each Advance is requested and made, such Account
shall be an Eligible Account.


 


(b)                
All statements made and all unpaid balances appearing in all invoices, instruments and other documents evidencing the Eligible
Accounts are and shall be true and correct and all such invoices, instruments and other documents, and all of Borrower’s
Books are genuine and in all respects what they purport to be. All sales and other transactions underlying or giving rise to each
Eligible Account shall comply in all material respects with all applicable laws and governmental rules and regulations. Borrower
has no knowledge of any actual or imminent Insolvency Proceeding of any Account Debtor whose accounts are Eligible Accounts in
any Borrowing Base Report. To the best of Borrower’s knowledge, all signatures and endorsements on all documents, instruments,
and agreements relating to all Eligible Accounts are genuine, and all such documents, instruments and agreements are legally enforceable
in accordance with their terms.


 


(c)                
For any item of Inventory consisting of Eligible Inventory in any Borrowing Base Report, such Inventory (i) consists of
finished goods, in good, new, and salable condition, which is not perishable, returned, consigned, obsolete, not sellable, damaged,
or defective, and is not comprised of demonstrative or custom inventory, works in progress, packaging or shipping materials, or
supplies; (ii) meets all applicable governmental standards; (iii) has been manufactured in compliance with the Fair Labor Standards
Act; (iv) is not subject to any Liens, except the first priority Liens granted or in favor of Bank under this Agreement or any
of the other Loan Documents; and (v) is located in the United States at the locations identified by Borrower in the Perfection
Certificate where it maintains Inventory and subject to a landlord waiver, bailee agreement or similar collateral access agreement
in favor of Bank.


 



     


     


    




5.4               
Litigation.  Except as set forth in the Perfection Certificate, there are no actions or proceedings pending or, to the
knowledge of any Responsible Officer, threatened in writing by or against Borrower or any of its Subsidiaries that could, individually
or in the aggregate, reasonably be expected to result in expenses to Borrower of more than One Million Dollars ($1,000,000).


 


5.5               
Financial Statements; Financial Condition.  All consolidated financial statements for Borrower and any of its Subsidiaries
delivered to Bank fairly present in all material respects Borrower’s consolidated financial condition and Borrower’s
consolidated results of operations. There has not been any material deterioration in Borrower’s consolidated financial condition
since the date of the most recent financial statements submitted to Bank.


 


5.6               
Solvency. The fair salable value of Borrower’s consolidated assets (including goodwill minus disposition costs)
exceeds the fair value of Borrower’s liabilities; Borrower is not left with unreasonably small capital after the transactions
in this Agreement; and Borrower is able to pay its debts (including trade debts) as they mature.


 


5.7               
Regulatory Compliance. Borrower is not an “investment company” or a company “controlled” by
an “investment company” under the Investment Company Act of 1940, as amended. Borrower is not 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 (a) has complied in all material respects with all Requirements of Law, and (b) has not violated any Requirements of Law
the violation of which could reasonably be expected to have a material adverse effect on its business. None of Borrower’s
or any of its Subsidiaries’ properties or assets has been used by Borrower or any Subsidiary or, to the best of Borrower’s
knowledge, by previous Persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than
in compliance with all applicable laws. Borrower and each of its Subsidiaries have 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.


 


5.8               
Subsidiaries; Investments. Borrower does not own any stock, partnership, or other ownership interest or other equity
securities except for Permitted Investments.


 


5.9               
Tax Returns and Payments; Pension Contributions. Borrower has timely filed all required tax returns and reports, and
Borrower has timely paid all foreign, federal, state and local taxes, assessments, deposits and contributions owed by Borrower
except (a) to the extent such taxes are being contested in good faith by appropriate proceedings promptly instituted and diligently
conducted, so long as such reserve or other appropriate provision, if any, as shall be required in conformity with GAAP shall have
been made therefor or (b) if such taxes, assessments, deposits and contributions do not, individually or in the aggregate, exceed
Fifty Thousand Dollars ($50,000).


 


To the extent Borrower
defers payment of any contested taxes, Borrower shall (i) notify Bank in writing of the commencement of, and any material development
in, the proceedings, and (ii) post bonds or take any other steps required to prevent the Governmental Authority levying such contested
taxes from obtaining a Lien upon any of the Collateral that is other than a “Permitted Lien.” Borrower is unaware of
any claims or adjustments proposed for any of Borrower’s prior tax years which could result in additional taxes becoming
due and payable by Borrower. Borrower has paid all amounts necessary to fund all present pension, profit sharing and deferred compensation
plans in accordance with their terms, and Borrower has not withdrawn from participation in, and has not permitted partial or complete
termination of, or permitted the occurrence of any other event with respect to, any such plan which could reasonably be expected
to result in any liability of Borrower, including any liability to the Pension Benefit Guaranty Corporation or its successors or
any other governmental agency.


 


5.10           
Use of Proceeds. Borrower shall use the proceeds of the Credit Extensions solely as working capital and to fund its
general business requirements and not for personal, family, household or agricultural purposes.


 


5.11           
Full Disclosure.  No written representation, warranty or other statement of Borrower in any certificate or written statement
given to Bank, as of the date such representation, warranty, or other statement was made, taken together with all such written
certificates and written statements given to Bank, contains any untrue statement of a material fact or omits to state a material
fact necessary to make the statements contained in the certificates or statements not misleading (it being recognized by Bank that
the projections and forecasts provided by Borrower in good faith and based upon reasonable assumptions are not viewed as facts
and that actual results during the period or periods covered by such projections and forecasts may differ from the projected or
forecasted results).


 



     


     


    




5.12           
Definition of “Knowledge.” 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.


 


6                    
AFFIRMATIVE COVENANTS


 


Borrower shall do all
of the following:


 


6.1               
Government Compliance.


 


(a)                
Except as permitted by Section 7.3, maintain its and all its Subsidiaries’ legal existence and good standing (or its
foreign equivalent, if any) in their respective jurisdictions of formation and maintain qualification in each jurisdiction in which
the failure to so qualify would reasonably be expected to have a material adverse effect on Borrower’s business or operations.
Borrower shall comply, and have each Subsidiary comply, in all material respects, with all laws, ordinances and regulations to
which it is subject, noncompliance with which could reasonably be expected to have a material adverse effect on Borrower’s
business.


 


(b)                
Obtain all of the Governmental Approvals necessary for the performance by Borrower of its obligations under the Loan Documents
to which it is a party and the grant of a security interest by Borrower to Bank in the Collateral. Borrower shall promptly provide
copies of any such obtained Governmental Approvals to Bank.


 


6.2               
Financial Statements, Reports, Certificates. Provide Bank with the following:


 


(a)                
a Borrowing Base Report (and any schedules related thereto and including any other information requested by Bank with respect
to Borrower’s Accounts) (i) with each request for an Advance, and (ii) within seven (7) days after the end of each month
(provided however that if such seventh day is not a Business Day, then such Borrowing Base Report shall be delivered on next Business
Day); provided however, upon the request of Bank, Borrower shall deliver to Bank a Borrowing Base Report no later than Friday of
each week;


 


(b)                
within thirty (30) days after the end of each month, (A) monthly accounts receivable agings, aged by invoice date, (B) monthly
accounts payable agings, aged by invoice date (C) monthly reconciliations of accounts receivable agings (aged by invoice date)
and general ledger, and (D) monthly perpetual inventory reports for Inventory consisting of finished products valued on a first-in,
first-out basis at the lower of cost or market (in accordance with GAAP) or such other inventory reports as are requested by Bank
in its good faith business judgment;


 


(c)                
as soon as available, but no later than thirty (30) days after the last day of each month, a company prepared consolidated
balance sheet and income statement covering Borrower’s and each of its Subsidiary’s operations for such month in a
form acceptable to Bank (the “Monthly Financial Statements”);


 


(d)                
within thirty (30) days after the last day of each month and together with the Monthly Financial Statements, a duly completed
Compliance Certificate signed by a Responsible Officer, certifying that as of the end of such month, Borrower was in full compliance
with all of the terms and conditions of this Agreement and such other information as Bank may reasonably request;


 


(e)                
within thirty (30) days of the end of each fiscal year of Borrower, and within seven (7) days of any updates or amendments
thereto, (A) consolidated annual operating budgets (including income statements, balance sheets and cash flow statements, by quarter)
for the then-current fiscal year of Borrower and its Subsidiaries and (B) annual financial projections for the then-current fiscal
year (on a quarterly basis), in each case as approved by the Board, together with any related business forecasts used in the preparation
of such annual financial projections;


 



     


     


    




(f)                 
within five (5) days of filing, copies of all periodic and other reports, proxy statements and other materials filed by
Borrower and/or any Guarantor with the SEC, any Governmental Authority succeeding to any or all of the functions of the SEC or
with any national securities exchange, or distributed to its shareholders, as the case may be. Documents required to be delivered
pursuant to the terms hereof (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 posts such documents,
or provides a link thereto, on Borrower’s website on the internet at Borrower’s website address; provided, however,
Borrower shall promptly notify Bank in writing (which may be by electronic mail) of the posting of any such documents;


 


(g)                
prompt report of any legal actions pending or threatened in writing against Borrower or any of its Subsidiaries that could
reasonably be expected to result in damages or costs to Borrower or any of its Subsidiaries of, individually or in the aggregate,
One Million Dollars ($1,000,000) or more;


 


(h)                
within thirty (30) days of the end of each calendar quarter, an update on the status of any litigation disclosed on the
Perfection Certificate along with such other information relating thereto as reasonably requested by Bank;


 


(i)                  
prompt written notice of any changes to the beneficial ownership information set out in Section 13 to the Perfection Certificate.
Borrower understands and acknowledges that Bank relies on such true, accurate and up-to-date beneficial ownership information to
meet Bank’s regulatory obligations to obtain, verify and record information about the beneficial owners of its legal entity
customers; and


 


(j)                 
promptly, from time to time, such other information regarding Borrower or compliance with the terms of any Loan Documents
as reasonably requested by Bank.


 


6.3               
Accounts Receivable.


 


(a)                
Schedules and Documents Relating to Accounts. Borrower shall deliver to Bank transaction reports and schedules of
collections, as provided in Section 6.2, on Bank’s standard forms; provided, however, that Borrower’s failure to execute
and deliver the same shall not affect or limit Bank’s Lien and other rights in all of Borrower’s Accounts, nor shall
Bank’s failure to advance or lend against a specific Account affect or limit Bank’s Lien and other rights therein.
If requested by Bank, Borrower shall furnish Bank with copies (or, at Bank’s request, originals) of all contracts, orders,
invoices, and other similar documents, and all shipping instructions, delivery receipts, bills of lading, and other evidence of
delivery, for any goods the sale or disposition of which gave rise to such Accounts. In addition, Borrower shall deliver to Bank,
on its request, the originals of all instruments, chattel paper, security agreements, guarantees and other documents and property
evidencing or securing any Accounts, in the same form as received, with all necessary indorsements, and copies of all credit memos.


 


(b)                
Disputes. Borrower shall promptly notify Bank of all disputes or claims relating to Accounts (i) that are included
in the Borrowing Base, where the amount at stake is in excess of Fifty Thousand Dollars ($50,000) or (ii) that are not included
in the Borrowing Base where the amount at stake is in excess of Five Hundred Thousand Dollars ($500,000) in the aggregate. Borrower
may forgive (completely or partially), compromise, or settle any Account for less than payment in full, or agree to do any of the
foregoing so long as (i) Borrower does so in good faith, in a commercially reasonable manner, in the ordinary course of business,
in arm’s-length transactions, and reports the same to Bank in the regular reports provided to Bank; (ii) no Event of Default
has occurred and is continuing; and (iii) after taking into account all such discounts, settlements and forgiveness, the total
outstanding Advances will not exceed the lesser of the Revolving Line or the Borrowing Base.


 


(c)                
Collection of Accounts. Borrower shall direct Account Debtors to deliver or transmit all proceeds of Accounts into
either (i) the Bank of America Lockbox Accounts, (ii) a lockbox account at Bank, or (iii) via electronic deposit capture into a
“blocked account” as specified by Bank (either such account specified in clauses (ii) and (iii) above, the “Cash
Collateral Account”). Whether or not an Event of Default has occurred and is continuing, Borrower shall immediately deliver
all payments on and proceeds of Accounts to the Cash Collateral Account. All collections into the Bank of America Lockbox Accounts
shall be transferred to the Cash Collateral Account on a daily basis. Subject to Bank’s right to maintain a reserve pursuant
to Section 6.3(d), all amounts received in the Cash Collateral Account shall be (i) when a Streamline Period is not in effect,
applied to immediately reduce the Obligations under the Revolving Line (unless Bank, in its sole discretion, elects not to so apply
such amounts), or (ii) when a Streamline Period is in effect, transferred on a daily basis to Borrower’s operating account
with Bank. Borrower hereby authorizes Bank to transfer to the Cash Collateral Account any amounts that Bank reasonably determines
are proceeds of the Accounts (provided that Bank is under no obligation to do so and this allowance shall in no event relieve Borrower
of its obligations hereunder).


 



     


     


    




(d)                
Reserves. Notwithstanding any terms in this Agreement to the contrary, at times when an Event of Default exists,
Bank may hold any proceeds of the Accounts and any amounts in the Cash Collateral Account that are not applied to the Obligations
pursuant to Section 6.3(c) above (including amounts otherwise required to be transferred to Borrower’s operating account
with Bank when a Streamline Period is in effect) as a reserve to be applied to any Obligations regardless of whether such Obligations
are then due and payable.


 


(e)                
Returns. Provided no Event of Default has occurred and is continuing, if any Account Debtor returns any Inventory
to Borrower in excess of Five Hundred Thousand Dollars ($500,000) in the aggregate, Borrower shall promptly (i) determine the reason
for such return, (ii) issue a credit memorandum to the Account Debtor in the appropriate amount, and (iii) provide a copy of such
credit memorandum to Bank, upon request from Bank. In the event any attempted return occurs after the occurrence and during the
continuance of any Event of Default, Borrower shall hold the returned Inventory in trust for Bank, and immediately notify Bank
of the return of the Inventory.


 


(f)                 
Verifications; Confirmations; Credit Quality; Notifications. After the occurrence and during the continuance of an
Event of Default, Bank may, from time to time, (i) verify and confirm directly with the respective Account Debtors the validity,
amount and other matters relating to the Accounts, either in the name of Borrower or Bank or such other name as Bank may choose,
and notify any Account Debtor of Bank’s security interest in such Account and/or (ii) conduct a credit check of any Account
Debtor to approve any such Account Debtor’s credit.


 


(g)                
No Liability. Bank shall not be responsible or liable for any shortage or discrepancy in, damage to, or loss or destruction
of, any goods, the sale or other disposition of which gives rise to an Account, or for any error, act, omission, or delay of any
kind occurring in the settlement, failure to settle, collection or failure to collect any Account, or for settling any Account
in good faith for less than the full amount thereof, nor shall Bank be deemed to be responsible for any of Borrower’s obligations
under any contract or agreement giving rise to an Account. Nothing herein shall, however, relieve Bank from liability for its own
gross negligence or willful misconduct.


 


6.4               
Remittance of Proceeds. Except as otherwise provided in Section 6.3(c), deliver, in kind, all cash proceeds arising
from the disposition of any Collateral to Bank in the original form in which received by Borrower not later than the following
Business Day after receipt by Borrower, to be applied to the Obligations (a) prior to an Event of Default, pursuant to the terms
of Section 6.3(c) hereof, and (b) after the occurrence and during the continuance of an Event of Default, pursuant to the terms
of Section 9.4 hereof; provided that, if no Event of Default has occurred and is continuing, Borrower shall not be obligated to
remit to Bank the proceeds of the sale of worn out or obsolete Equipment disposed of by Borrower in good faith in an arm’s
length transaction for an aggregate purchase price of Twenty-Five Thousand Dollars ($25,000) or less (for all such transactions
in any fiscal year). Borrower agrees that it will not commingle proceeds of Collateral with any of Borrower’s other funds
or property, but will hold such proceeds separate and apart from such other funds and property and in an express trust for Bank.
Nothing in this Section 6.4 limits the restrictions on disposition of Collateral set forth elsewhere in this Agreement.


 


6.5               
Taxes; Pensions. Timely file, and require each of its Subsidiaries to timely file, all required tax returns and reports
and timely pay, and require each of its Subsidiaries to timely pay, all foreign, federal, state and local taxes, assessments, deposits
and contributions owed by Borrower and each of its Subsidiaries, except for deferred payment of any taxes contested pursuant to
the terms of Section 5.9 hereof, and shall deliver to Bank, on demand, appropriate certificates attesting to such payments, and
pay all amounts necessary to fund all present pension, profit sharing and deferred compensation plans in accordance with their
terms.


 


6.6               
Access to Collateral; Books and Records.  At reasonable times, on five (5) Business Days’ notice (provided no
notice is required if an Event of Default has occurred and is continuing), Bank, or its agents, shall have the right to inspect
the Collateral and the right to audit and copy Borrower’s Books. The foregoing inspections and audits shall be conducted
no more often than once every twelve (12) months (or more frequently as Bank in its reasonable discretion determines that conditions
warrant) unless an Event of Default has occurred and is continuing in which case such inspections and audits shall occur as often
as Bank shall determine is necessary. The foregoing inspections and audits shall be conducted at Borrower’s expense and the
charge therefor shall be One Thousand Dollars ($1,000) per person per day (or such higher amount as shall represent Bank’s
then-current standard charge for the same), plus reasonable out-of-pocket expenses. In the event Borrower and Bank schedule an
audit more than eight (8) days in advance, and Borrower cancels or seeks to or reschedules the audit with less than eight (8) days
written notice to Bank, then (without limiting any of Bank’s rights or remedies) Borrower shall pay Bank a fee of Two Thousand
Dollars ($2,000) plus any out-of-pocket expenses incurred by Bank to compensate Bank for the anticipated costs and expenses of
the cancellation or rescheduling.


 



     


     


    




6.7               
Insurance.


 


(a)                
Keep its business and the Collateral insured for risks and in amounts standard for companies in Borrower’s industry
and location and as Bank may reasonably request. Insurance policies shall be in a form, with financially sound and reputable insurance
companies that are not Affiliates of Borrower, and in amounts that are satisfactory to Bank. All property policies shall have a
lender’s loss payable endorsement showing Bank as lender loss payee. All liability policies shall show, or have endorsements
showing, Bank as an additional insured. Bank shall be named as lender loss payee and/or additional insured with respect to any
such insurance providing coverage in respect of any Collateral.


 


(b)                
Ensure that proceeds payable under any property policy are, at Bank’s option, payable to Bank on account of the Obligations.
Notwithstanding the foregoing, so long as no Event of Default has occurred and is continuing, Borrower shall have the option of
applying the proceeds of any casualty policy up to Five Hundred Thousand Dollars ($500,000) toward the replacement or repair of
destroyed or damaged property or the purchase of other property useful to Borrower’s business; provided that any such replaced
or repaired property or other property shall be deemed Collateral in which Bank has been granted a first priority security interest.


 


(c)                
At Bank’s request, Borrower shall deliver certified copies of insurance policies and evidence of all premium payments.
Each provider of any such insurance required under this Section 6.7 shall agree, by endorsement upon the policy or policies issued
by it or by independent instruments furnished to Bank, that it will give Bank thirty (30) days prior written notice before any
such policy or policies shall be materially altered or canceled. If Borrower fails to obtain insurance as required under this Section
6.7 or to pay any amount or furnish any required proof of payment to third persons and Bank, Bank may make all or part of such
payment or obtain such insurance policies required in this Section 6.7, and take any action under the policies Bank deems prudent.


 


6.8               
Accounts.


 


(a)                
Maintain its and all of its Subsidiaries’ operating and other deposit accounts, the Cash Collateral Account and excess
cash with Bank and Bank’s Affiliates; provided, however, notwithstanding the foregoing, (I) Borrower may maintain (a) subject
to a Control Agreement entered into for the benefit of Bank, its existing collections accounts at Bank of America listed on the
Perfection Certificate delivered by Borrower to Bank on or prior to the Effective Date (the “Bank of America Lockbox Accounts”)
so long as such accounts are blocked and all amounts in such accounts are swept to the Cash Collateral Account on a daily basis,
(b) subject to a Control Agreement entered into for the benefit of Bank, depository accounts (other than the Bank of America Payroll
Account) at Bank of America (the “Bank of America Deposit Accounts”) so long as the aggregate amount of cash
in such accounts does not, at any time, exceed Three Million Five Hundred Thousand Dollars ($3,500,000) in the aggregate, (c) its
existing payroll account at Bank of America listed on the Perfection Certificate delivered by Borrower to Bank on or prior to the
Effective Date (the “Bank of America Payroll Account”) so long as the aggregate amount of cash in such accounts
does not, at any time, exceed an amount equal to one hundred percent (100%) of the next payroll (including but not limited to any
bonuses payable), (d) for a period of time not to exceed twelve (12) months following the Effective Date, its existing account
at Wells Fargo Bank listed on the Perfection Certificate delivered by Borrower to Bank on or prior to the Effective Date (the “Wells
Fargo Account”) so long as the aggregate amount of cash in such account does not, at any time, exceed Four Hundred Thousand
Dollars ($400,000) in the aggregate, and (e) for a period of time not to exceed (12) months following the Effective Date, its existing
account at Bridge Bank listed on the Perfection Certificate delivered by Borrower to Bank on or prior to the Effective Date (the
“Bridge Bank Account”) so long as the aggregate amount of cash in such account does not, at any time, exceed
Sixty Thousand Dollars ($60,000) in the aggregate and (II) Borrower’s Foreign Subsidiaries may maintain accounts with banks
outside of the United States so long as the aggregate amount of cash in such account does not, at any time, exceed the lesser of
(i) Eight Million Dollars ($8,000,000) or (ii) thirty percent (30%) of all of Borrower’s and its Subsidiaries’ cash
in the aggregate. In addition, Borrower (i) shall use its best efforts to use Bank Services provided such Bank Services meet Borrower’s
ordinary course of business needs and (ii) Borrower shall maintain all its credit cards with Bank.


 



     


     


    




(b)                
In addition to and without limiting the restrictions in (a), Borrower shall provide Bank five (5) days prior written notice
before establishing any Collateral Account at or with any bank or financial institution other than Bank or Bank’s Affiliates.
For each Collateral Account that Borrower at any time maintains, Borrower shall cause the applicable bank or financial institution
(other than Bank) at or with which any Collateral Account is maintained to execute and deliver a Control Agreement or other appropriate
instrument with respect to such Collateral Account to perfect Bank’s Lien in such Collateral Account in accordance with the
terms hereunder which Control Agreement may not be terminated without the prior written consent of Bank. The provisions of the
previous sentence shall not apply to (i) the Bridge Bank Account, (ii) the Wells Fargo Account or (iii) deposit accounts exclusively
used for payroll, payroll taxes, and other employee wage and benefit payments to or for the benefit of Borrower’s employees
and identified to Bank by Borrower as such (including but not limited to the Bank of America Payroll Account).


 


6.9               
Intentionally Omitted.


 


6.10           
Protection of Intellectual Property Rights.


 


(a)                
(i) Protect, defend and maintain the validity and enforceability of its Intellectual Property material to Borrower’s
business; (ii) promptly advise Bank in writing of material infringements or any other event that could reasonably be expected to
materially and adversely affect the value of its Intellectual Property material to Borrower’s business; and (iii) not allow
any Intellectual Property material to Borrower’s business to be abandoned, forfeited or dedicated to the public without Bank’s
written consent.


 


(b)                
Provide written notice to Bank on the next Compliance Certificate required to be delivered hereunder of entering or becoming
bound by any Restricted License (other than over-the-counter software that is commercially available to the public). Borrower shall
take such steps as Bank requests to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for (i)
any Restricted License to be deemed “Collateral” and for Bank to have a security interest in it that might otherwise
be restricted or prohibited by law or by the terms of any such Restricted License, whether now existing or entered into in the
future, and (ii) Bank to have the ability in the event of a liquidation of any Collateral to dispose of such Collateral in accordance
with Bank’s rights and remedies under this Agreement and the other Loan Documents.


 


6.11           
Litigation Cooperation. From the date hereof and continuing through the termination of this Agreement, make available
to Bank, without expense to Bank, Borrower and its officers, employees and agents and Borrower’s books and records, to the
extent that Bank may deem them reasonably necessary to prosecute or defend any third-party suit or proceeding instituted by or
against Bank with respect to any Collateral or relating to Borrower.


 


6.12           
Online Banking.


 


(a)                
Utilize Bank’s online banking platform for all matters requested by Bank which shall include, without limitation (and
without request by Bank for the following matters), uploading information pertaining to Accounts and Account Debtors, requesting
approval for exceptions, requesting Credit Extensions, and uploading financial statements and other reports required to be delivered
by this Agreement (including, without limitation, those described in Section 6.2 of this Agreement).


 


(b)                
Comply with the terms of Bank’s Online Banking Agreement as in effect from time to time and ensure that all persons
utilizing Bank’s online banking platform are duly authorized to do so by an Administrator. Bank shall be entitled to assume
the authenticity, accuracy and completeness on any information, instruction or request for a Credit Extension submitted via Bank’s
online banking platform and to further assume that any submissions or requests made via Bank’s online banking platform have
been duly authorized by an Administrator.


 



     


     


    




6.13           
Formation or Acquisition of Subsidiaries. Notwithstanding and without limiting the negative covenants contained in Sections
7.3 and 7.7 hereof, at the time that Borrower or any Guarantor forms any direct or indirect Subsidiary or acquires any direct or
indirect Subsidiary after the Effective Date, Borrower and such Guarantor shall (a) with respect to Domestic Subsidiaries only,
cause such new Domestic Subsidiary to provide to Bank a joinder to this Agreement to become a co-borrower hereunder or a Guaranty
to become a Guarantor hereunder, together with such appropriate financing statements and/or Control Agreements, all in form and
substance satisfactory to Bank (including being sufficient to grant Bank a first priority Lien (subject to Permitted Liens) in
and to the assets of such newly formed or acquired Domestic Subsidiary), (b) provide to Bank appropriate certificates and powers
and financing statements, pledging all of the direct or beneficial ownership interest in such new Subsidiary, in form and substance
satisfactory to Bank, provided, however, that Borrower shall not be required to pledge more than sixty-five percent (65%) of the
direct or beneficial ownership interest of any Foreign Subsidiary; and (c) provide to Bank all other documentation in form and
substance satisfactory to Bank, including one or more opinions of counsel satisfactory to Bank, which in its opinion is appropriate
with respect to the execution and delivery of the applicable documentation referred to above. Any document, agreement, or instrument
executed or issued pursuant to this Section 6.13 shall be a Loan Document.


 


6.14           
Further Assurances. Execute any further instruments and take further action as Bank reasonably requests to perfect or
continue Bank’s Lien in the Collateral or to effect the purposes of this Agreement. Deliver to Bank, within ten (10) days
after the same are sent or received, copies of all correspondence, reports, documents and other filings with any Governmental Authority
regarding compliance with or maintenance of Governmental Approvals or Requirements of Law or that could reasonably be expected
to have a material adverse effect on any of the Governmental Approvals or otherwise on the operations of Borrower or any of its
Subsidiaries.


 


7                    
NEGATIVE COVENANTS


 


Borrower shall not
do any of the following without Bank’s prior written consent:


 


7.1               
Dispositions. Convey, sell, lease, transfer, assign, or otherwise dispose of (collectively, “Transfer”),
or permit any of its Subsidiaries to Transfer, all or any part of its business or property, except for Transfers (a) of Inventory
in the ordinary course of business; (b) of worn-out or obsolete Equipment that is, in the reasonable judgment of Borrower, no longer
economically practicable to maintain or useful in the ordinary course of business of Borrower; (c) consisting of Permitted Liens
and Permitted Investments; (d) consisting of the sale or issuance of any stock of Borrower permitted under Section 7.2 of this
Agreement; (e) dispositions of Intellectual Property that are permitted pursuant to Section 6.10(a); (f) consisting of Borrower’s
use or transfer of money or Cash Equivalents in a manner that is not prohibited by the terms of this Agreement or the other Loan
Documents; (g) of non-exclusive licenses for the use of the property of Borrower or its Subsidiaries 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 discrete geographical areas outside of the United
States; and (h) of other property with a book value not to exceed Five Hundred Thousand Dollars ($500,000) in the aggregate in
any fiscal year.


 


7.2               
Changes in Business, Management, Control, or Business Locations. (a) Engage in or permit any of its Subsidiaries to
engage in any business other than the businesses currently engaged in by Borrower and such Subsidiary, as applicable, or reasonably
related thereto; (b) liquidate or dissolve; (c) fail to provide notice to Bank of any Key Person departing from or ceasing to be
employed by Borrower within five (5) days after his or her departure from Borrower; or (d) permit or suffer any Change in Control.


 


Borrower shall not,
without at least thirty (30) days prior written notice to Bank: (1) add any new offices or business locations, including warehouses
(unless such new offices or business locations contain less than Five Hundred Thousand Dollars ($500,000) in Borrower’s assets
or property) or deliver any portion of the Collateral valued, individually or in the aggregate, in excess of Five Hundred Thousand
Dollars ($500,000) to a bailee at a location other than to a bailee and at a location already disclosed in the Perfection Certificate,
(2) change its jurisdiction of organization, (3) change its organizational structure or type, (4) change its legal name, or (5)
change any organizational number (if any) assigned by its jurisdiction of organization. If Borrower intends to add any new offices
or business locations, including warehouses, containing in excess of Five Hundred Thousand Dollars ($500,000) of Borrower's assets
or property, then Borrower will first receive the written consent of Bank, and the landlord of any such new offices or business
locations, including warehouses, shall execute and deliver a landlord consent in form and substance satisfactory to Bank. If Borrower
intends to deliver any portion of the Collateral valued, individually or in the aggregate, in excess of Five Hundred Thousand Dollars
($500,000) to a bailee, and Bank and such bailee are not already parties to a bailee agreement governing both the Collateral and
the location to which Borrower intends to deliver the Collateral, then Borrower will first receive the written consent of Bank,
and such bailee shall execute and deliver a bailee agreement in form and substance satisfactory to Bank.


 



     


     


    




7.3               
Mergers or Acquisitions. Merge or consolidate, or permit any of its Subsidiaries to merge or consolidate, with any other
Person, or acquire, or permit any of its Subsidiaries to acquire, all or substantially all of the capital stock or property of
another Person (including, without limitation, by the formation of any Subsidiary). Notwithstanding the foregoing, (a) a Subsidiary
may merge or consolidate into another Subsidiary or into Borrower and (b) Borrower may consummate Permitted Acquisitions.


 


7.4               
Indebtedness. Create, incur, assume, or be liable for any Indebtedness, or permit any Subsidiary to do so, other than
Permitted Indebtedness.


 


7.5               
Encumbrance. Create, incur, allow, or suffer any Lien on any of its property, or assign or convey any right to receive
income, including the sale of any Accounts, or permit any of its Subsidiaries to do so, except for Permitted Liens, permit any
Collateral not to be subject to the first priority security interest granted herein (which Collateral may be subject to Permitted
Liens), or enter into any agreement, document, instrument or other arrangement (except with or in favor of Bank) with any Person
which directly or indirectly prohibits or has the effect of prohibiting Borrower or any Subsidiary from assigning, mortgaging,
pledging, granting a security interest in or upon, or encumbering any of Borrower’s or any Subsidiary’s Intellectual
Property, except as is otherwise permitted (i) in Section 7.1 hereof, (ii) by the definition of “Permitted Liens” herein
and (iii) restrictions in merger or acquisition agreements, provided that such covenants do not prohibit Borrower from granting
a security interest in such Borrower’s property in favor of Bank and provided further that the counter-parties to such covenants
are not permitted to receive a security interest in Borrower’s property.


 


7.6               
Maintenance of Collateral Accounts. Maintain any Collateral Account except pursuant to the terms of Section 6.8(b) hereof.


 


7.7               
Distributions; Investments. (a) Pay any dividends or make any distribution or payment or redeem, retire or purchase
any capital stock of Borrower provided that Borrower may (i) convert any of its convertible securities into other securities pursuant
to the terms of such convertible securities or otherwise in exchange thereof, (ii) pay dividends solely in common stock; (iii)
pay cash in lieu of fractional shares in connection with any distribution, payment or redemption permitted pursuant to this Section
7.7; (iv) non-cash purchases or withholding of capital stock in connection with the exercise of stock options or stock appreciation
rights by way of cashless exercise or the vesting of restricted stock units or in connection with the satisfaction of withholding
tax obligations; and (v) other payments, distributions, redemptions, retirements or purchases in an aggregate amount not to exceed
Five Hundred Thousand Dollars ($500,000) in any fiscal year so long as an Event of Default does not exist at the time of any such
payment, distribution, redemption, retirement or purchase and would not exist after giving effect thereto, or (b) directly or indirectly
make any Investment (including, without limitation, by the formation of any Subsidiary) other than Permitted Investments, or permit
any of its Subsidiaries to do so.


 


7.8               
Transactions with Affiliates. Directly or indirectly enter into or permit to exist any material transaction with any
Affiliate of Borrower, except (i) for transactions that are in the ordinary course of Borrower’s business, upon fair and
reasonable terms that are no less favorable to Borrower than would be obtained in an arm’s length transaction with a non-affiliated
Person, (ii) employee agreements or arrangements, indemnification agreements and compensation arrangements approved by the Board
(or a committee thereof), (iii) transactions of the type described in and permitted in Section 7.7 and Permitted Investments and
(iv) equity or Subordinated Debt financing transactions with existing investors that are not otherwise prohibited by this Agreement.


 


7.9               
Subordinated Debt. (a) Make or permit any payment on any Subordinated Debt, except under the terms of the subordination,
intercreditor, or other similar agreement to which such Subordinated Debt is subject, or (b) amend any provision in any document
relating to the Subordinated Debt which would increase the amount thereof, provide for earlier or greater principal, interest,
or other payments thereon, or adversely affect the subordination thereof to Obligations owed to Bank.


 



     


     


    




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


 


8                    
EVENTS OF DEFAULT


 


Any one of the following
shall constitute an event of default (an “Event of Default”) under this Agreement:


 


8.1               
Payment Default. Borrower fails to (a) make any payment of principal or interest on any Credit Extension when due, or
(b) pay any other Obligations within three (3) Business Days after such Obligations are due and payable (which three (3) Business
Day cure period shall not apply to payments due on the Revolving Line Maturity Date). During the cure period, the failure to make
or pay any payment specified under clause (b) hereunder is not an Event of Default (but no Credit Extension will be made during
the cure period);


 


8.2               
Covenant Default.


 


(a)       Borrower
fails or neglects to perform any obligation in Sections 6.2, 6.3, 6.4, 6.5, 6.6, 6.7, 6.8, 6.10, 6.12, 6.13, or 6.14 or violates
any covenant in Section 7; or


 


(b)       Borrower
fails or neglects to perform, keep, or observe any other term, provision, condition, covenant or agreement contained in this Agreement
or any Loan Documents, and as to any default (other than those specified in this Section 8) under such other term, provision, condition,
covenant or agreement that can be cured, has failed to cure the default within fifteen (15) days after the occurrence thereof;
provided, however, that if the default cannot by its nature be cured within the fifteen (15) day period or cannot after diligent
attempts by Borrower be cured within such fifteen (15) day period, and such default is likely to be cured within a reasonable time,
then Borrower shall have an additional period (which shall not in any case exceed thirty (30) days) to attempt to cure such default,
and within such reasonable time period the failure to cure the default shall not be deemed an Event of Default (but no Credit Extensions
shall be made during such cure period). Cure periods provided under this section shall not apply, among other things, to financial
covenants or any other covenants set forth in clause (a) above;


 


8.3               
Material Adverse Change. A Material Adverse Change occurs;


 


8.4               
Attachment; Levy; Restraint on Business.


 


(a)                
(i) The service of process seeking to attach, by trustee or similar process, any funds of Borrower or of any entity under
the control of Borrower (including a Subsidiary), or (ii) a notice of lien or levy is filed against any of Borrower’s assets
by any Governmental Authority, and the same under subclauses (i) and (ii) hereof are not, within ten (10) days after the occurrence
thereof, discharged or stayed (whether through the posting of a bond or otherwise); provided, however, no Credit Extensions shall
be made during any ten (10) day cure period; or


 


(b)                
(i) any material portion of Borrower’s assets is attached, seized, levied on, or comes into possession of a trustee
or receiver, or (ii) any court order enjoins, restrains, or prevents Borrower from conducting all or any material part of its business;


 



     


     


    




8.5               
Insolvency. (a) Borrower or any of its Subsidiaries is unable to pay its debts (including trade debts) as they become
due or otherwise becomes insolvent; (b) Borrower or any of its Subsidiaries begins an Insolvency Proceeding; or (c) an Insolvency
Proceeding is begun against Borrower or any of its Subsidiaries and is not dismissed or stayed within forty five (45) days (but
no Credit Extensions shall be made while any of the conditions described in clause (a) exist and/or until any Insolvency Proceeding
is dismissed);


 


8.6               
Other Agreements. There is, under any agreement to which Borrower or any Guarantor is a party with a third party or
parties, (a) any default resulting in a right by such third party or parties, whether or not exercised, to accelerate the maturity
of any Indebtedness in an amount individually or in the aggregate in excess of Five Hundred Thousand Dollars ($500,000); or (b)
any breach or default by Borrower or Guarantor, the result of which could have a material adverse effect on Borrower’s or
any Guarantor’s business; provided, however, that the Event of Default under this Section 8.6 caused by the occurrence of
a breach or default under such other agreement shall be cured or waived for purposes of this Agreement upon Bank receiving written
notice from the party asserting such breach or default of such cure or waiver of the breach or default under such other agreement,
if at the time of such cure or waiver under such other agreement (x) Bank has not declared an Event of Default under this Agreement
and/or exercised any rights with respect thereto; (y) any such cure or waiver does not result in an Event of Default under any
other provision of this Agreement or any Loan Document; and (z) in connection with any such cure or waiver under such other agreement,
the terms of any agreement with such third party are not modified or amended in any manner which could in the good faith business
judgment of Bank be materially less advantageous to Borrower;


 


8.7               
Judgments; Penalties. One or more fines, penalties or final judgments, orders or decrees for the payment of money in
an amount, individually or in the aggregate, of at least Five Hundred Thousand Dollars ($500,000) (not covered by independent third-party
insurance as to which liability has been accepted by such insurance carrier) shall be rendered against Borrower by any Governmental
Authority, and the same are not, within ten (10) days after the entry, assessment or issuance thereof, discharged, satisfied, or
paid, or after execution thereof, stayed or bonded pending appeal, or such judgments are not discharged prior to the expiration
of any such stay (provided that no Credit Extensions will be made prior to the satisfaction, payment, discharge, stay, or bonding
of such fine, penalty, judgment, order or decree);


 


8.8               
Misrepresentations. Borrower or any Person acting for Borrower makes any representation, warranty, or other statement
now or later in this Agreement, any Loan Document or in any writing delivered to Bank or to induce Bank to enter this Agreement
or any Loan Document, and such representation, warranty, or other statement is incorrect in any material respect when made;


 


8.9               
Subordinated Debt. Any document, instrument, or agreement evidencing any Subordinated Debt shall for any reason be revoked
or invalidated or otherwise cease to be in full force and effect, any Person shall be in breach thereof or contest in any manner
the validity or enforceability thereof or deny that it has any further liability or obligation thereunder, or the Obligations shall
for any reason be subordinated or shall not have the priority contemplated by this Agreement or any applicable subordination or
intercreditor agreement;


 


8.10           
Guaranty. (a) Any guaranty of any Obligations terminates or ceases for any reason to be in full force and effect; (b)
any Guarantor does not perform any obligation or covenant under any guaranty of the Obligations; (c) any circumstance described
in Sections 8.3, 8.4, 8.5, 8.6, 8.7, or 8.8 of this Agreement occurs with respect to any Guarantor, (d) the death, liquidation,
winding up, or termination of existence of any Guarantor; or (e) (i) a material impairment in the perfection or priority of Bank’s
Lien in the collateral provided by Guarantor or in the value of such collateral or (ii) a material adverse change in the general
affairs, management, results of operation, condition (financial or otherwise) or the prospect of repayment of the Obligations occurs
with respect to any Guarantor; or


 


8.11           
Governmental Approvals. Any Governmental Approval shall have been revoked, rescinded, suspended, modified in an adverse
manner or not renewed in the ordinary course for a full term and such decision or such revocation, rescission, suspension, modification
or non-renewal could reasonably be expected to cause, a Material Adverse Change.


 



     


     


    




9                    
BANK’S RIGHTS AND REMEDIES


 


9.1               
Rights and Remedies. Upon the occurrence and during the continuance of an Event of Default, Bank may, without notice
or demand, do any or all of the following:


 


(a)                
declare all Obligations immediately due and payable (but if an Event of Default described in Section 8.5 occurs all Obligations
are immediately due and payable without any action by Bank);


 


(b)                
stop advancing money or extending credit for Borrower’s benefit under this Agreement or under any other agreement
between Borrower and Bank;


 


(c)                
demand that Borrower (i) deposit cash with Bank in an amount equal to at least (A) one hundred five percent (105.0%) of
the Dollar Equivalent of the aggregate face amount of all Letters of Credit denominated in Dollars remaining undrawn, and (B) one
hundred ten percent (110.0%) of the Dollar Equivalent of the aggregate face amount of all Letters of Credit denominated in a Foreign
Currency remaining undrawn (plus, in each case, all interest, fees, and costs due or to become due in connection therewith (as
estimated by Bank in its good faith business judgment)), to secure all of the Obligations relating to such Letters of Credit, as
collateral security for the repayment of any future drawings under such Letters of Credit, and Borrower shall forthwith deposit
and pay such amounts, and (ii) pay in advance all letter of credit fees scheduled to be paid or payable over the remaining term
of any Letters of Credit;


 


(d)                
terminate any FX Contracts;


 


(e)                
verify the amount of, demand payment of and performance under, and collect any Accounts and General Intangibles, settle
or adjust disputes and claims directly with Account Debtors for amounts on terms and in any order that Bank considers advisable,
and notify any Person owing Borrower money of Bank’s security interest in such funds. Borrower shall collect all payments
in trust for Bank and, if requested by Bank, immediately deliver the payments to Bank in the form received from the Account Debtor,
with proper endorsements for deposit;


 


(f)                 
make any payments and do any acts it considers necessary or reasonable to protect the Collateral and/or its security interest
in the Collateral. Borrower shall assemble the Collateral if Bank requests and make it available as Bank designates. Bank may enter
premises where the Collateral is located, take and maintain possession of any part of the Collateral, and pay, purchase, contest,
or compromise any Lien which appears to be prior or superior to its security interest and pay all expenses incurred. Borrower grants
Bank a license to enter and occupy any of its premises, without charge, to exercise any of Bank’s rights or remedies;


 


(g)                
apply to the Obligations any (i) balances and deposits of Borrower it holds, or (ii) amount held by Bank owing to or for
the credit or the account of Borrower;


 


(h)                
ship, reclaim, recover, store, finish, maintain, repair, prepare for sale, advertise for sale, and sell the Collateral.
Bank is hereby granted a non-exclusive, royalty-free license or other right to use, without charge, Borrower’s labels, Patents,
Copyrights, mask works, rights of use of any name, trade secrets, trade names, Trademarks, and advertising matter, or any similar
property as it pertains to the Collateral, in completing production of, advertising for sale, and selling any Collateral and, in
connection with Bank’s exercise of its rights under this Section 9.1, Borrower’s rights under all licenses and all
franchise agreements inure to Bank’s benefit;


 


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


 


(j)                 
demand and receive possession of Borrower’s Books; and


 


(k)                
exercise all rights and remedies available to Bank under the Loan Documents or at law or equity, including all remedies
provided under the Code (including disposal of the Collateral pursuant to the terms thereof).


 



     


     


    




9.2               
Power of Attorney. Borrower hereby irrevocably appoints Bank as its lawful attorney-in-fact, exercisable following the
occurrence and during the continuance of an Event of Default, to: (a) endorse Borrower’s name on any checks, payment instruments,
or other forms of payment or security; (b) sign Borrower’s name on any invoice or bill of lading for any Account or drafts
against Account Debtors; (c) demand, collect, sue, and give releases to any Account Debtor for monies due, settle and adjust disputes
and claims about the Accounts directly with Account Debtors, and compromise, prosecute, or defend any action, claim, case, or proceeding
about any Collateral (including filing a claim or voting a claim in any bankruptcy case in Bank’s or Borrower’s name,
as Bank chooses); (d) make, settle, and adjust all claims under Borrower’s insurance policies; (e) pay, contest or settle
any Lien, charge, encumbrance, security interest, or other claim in or to the Collateral, or any judgment based thereon, or otherwise
take any action to terminate or discharge the same; and (f) transfer the Collateral into the name of Bank or a third party as the
Code permits. Borrower hereby appoints Bank as its lawful attorney-in-fact to sign Borrower’s name on any documents necessary
to perfect or continue the perfection of Bank’s security interest in the Collateral regardless of whether an Event of Default
has occurred until all Obligations (other than inchoate indemnity obligations, and any other obligations which, by their terms,
are to survive the termination of this Agreement, and any Obligations under Bank Services Agreements that are cash collateralized
in accordance with Section 4.1 of this Agreement) have been satisfied in full and the Loan Documents have been terminated. Bank’s
foregoing appointment as Borrower’s attorney in fact, and all of Bank’s rights and powers, coupled with an interest,
are irrevocable until all Obligations (other than inchoate indemnity obligations, and any other obligations which, by their terms,
are to survive the termination of this Agreement, and any Obligations under Bank Services Agreements that are cash collateralized
in accordance with Section 4.1 of this Agreement) have been fully repaid and performed and the Loan Documents have been terminated.


 


9.3               
Protective Payments. If Borrower fails to obtain the insurance called for by Section 6.7 or fails to pay any premium
thereon or fails to pay any other amount which Borrower is obligated to pay under this Agreement or any other Loan Document or
which may be required to preserve the Collateral, Bank may obtain such insurance or make such payment, and all amounts so paid
by Bank are Bank Expenses and immediately due and payable, bearing interest at the then highest rate applicable to the Obligations,
and secured by the Collateral. Bank will make reasonable efforts to provide Borrower with notice of Bank obtaining such insurance
at the time it is obtained or within a reasonable time thereafter. No payments by Bank are deemed an agreement to make similar
payments in the future or Bank’s waiver of any Event of Default.


 


9.4               
Application of Payments and Proceeds. If an Event of Default has occurred and is continuing (or at any time on the terms
set forth in Section 6.3(c), regardless of whether an Event of Default exists), Bank shall have the right to apply in any order
any funds in its possession, whether from Borrower account balances, payments, proceeds realized as the result of any collection
of Accounts or other disposition of the Collateral, or otherwise, to the Obligations. Bank shall pay any surplus to Borrower by
credit to the Designated Deposit Account or to other Persons legally entitled thereto; Borrower shall remain liable to Bank for
any deficiency. If Bank, directly or indirectly, enters into a deferred payment or other credit transaction with any purchaser
at any sale of Collateral, Bank shall have the option, exercisable at any time, of either reducing the Obligations by the principal
amount of the purchase price or deferring the reduction of the Obligations until the actual receipt by Bank of cash therefor.


 


9.5               
Bank’s Liability for Collateral. So long as Bank complies with reasonable banking practices regarding the safekeeping
of the Collateral in the possession or under the control of Bank, Bank shall not be liable or responsible for: (a) the safekeeping
of the Collateral; (b) any loss or damage to the Collateral; (c) any diminution in the value of the Collateral; or (d) any act
or default of any carrier, warehouseman, bailee, or other Person. Borrower bears all risk of loss, damage or destruction of the
Collateral, other than those losses directly caused by Bank’s gross negligence or willful misconduct.


 


9.6               
No Waiver; Remedies Cumulative. Bank’s failure, at any time or times, to require strict performance by Borrower
of any provision of this Agreement or any other Loan Document shall not waive, affect, or diminish any right of Bank thereafter
to demand strict performance and compliance herewith or therewith. No waiver hereunder shall be effective unless signed by the
party granting the waiver and then is only effective for the specific instance and purpose for which it is given. Bank’s
rights and remedies under this Agreement and the other Loan Documents are cumulative. Bank has all rights and remedies provided
under the Code, by law, or in equity. Bank’s exercise of one right or remedy is not an election and shall not preclude Bank
from exercising any other remedy under this Agreement or other remedy available at law or in equity, and Bank’s waiver of
any Event of Default is not a continuing waiver. Bank’s delay in exercising any remedy is not a waiver, election, or acquiescence.


 



     


     


    




9.7               
Demand Waiver. Borrower waives demand, notice of default or dishonor, notice of payment and nonpayment, notice of any
default, nonpayment at maturity, release, compromise, settlement, extension, or renewal of accounts, documents, instruments, chattel
paper, and guarantees held by Bank on which Borrower is liable.


 


10                
NOTICES


 


All notices, consents,
requests, approvals, demands, or other communication by any party to this Agreement or any other Loan Document must be in writing
and shall be deemed to have been validly served, given, or delivered: (a) upon the earlier of actual receipt and three (3) Business
Days after deposit in the U.S. mail, first class, registered or certified mail return receipt requested, with proper postage prepaid;
(b) upon transmission, when sent by electronic mail or facsimile transmission; (c) one (1) Business Day after deposit with a reputable
overnight courier with all charges prepaid; or (d) when delivered, if hand-delivered by messenger, all of which shall be addressed
to the party to be notified and sent to the address, facsimile number, or email address indicated below. Bank or Borrower may change
its mailing or electronic mail address or facsimile number by giving the other party written notice thereof in accordance with
the terms of this Section 10.


 


	If to Borrower:	 	FLUIDIGM CORPORATION
	 	 	7000 Shoreline Court, Suite 100
	 	 	San Francisco, CA 94080
	 	 	Attn: Vikram Jog, Chief Financial Officer
	 	 	Email: vikram.jog@fluidigm.com




 


 


	If to Bank:	 	SILICON VALLEY BANK
	 	 	505 Howard Street, Suite 300
	 	 	San Francisco, CA 94105
	 	 	Attn: Kristina Peralta, Vice President
	 	 	Email: kperalta@svb.com




 


11                
CHOICE OF LAW, VENUE, JURY TRIAL WAIVER AND JUDICIAL REFERENCE


 


Except as otherwise
expressly provided in any of the Loan Documents, California law governs the Loan Documents without regard to principles of conflicts
of law. Borrower and Bank each submit to the exclusive jurisdiction of the State and Federal courts in Santa Clara County, California;
provided, however, that nothing in this Agreement shall be deemed to operate to preclude Bank from bringing suit or taking other
legal action in any other jurisdiction to realize on the Collateral or any other security for the Obligations, or to enforce a
judgment or other court order in favor of Bank. Borrower expressly submits and consents in advance to such jurisdiction in any
action or suit commenced in any such court, and Borrower hereby waives any objection that it may have based upon lack of personal
jurisdiction, improper venue, or forum non conveniens and hereby consents to the granting of such legal or equitable relief as
is deemed appropriate by such court. Borrower hereby waives personal service of the summons, complaints, and other process issued
in such action or suit and agrees that service of such summons, complaints, and other process may be made by registered or certified
mail addressed to Borrower at the address set forth in, or subsequently provided by Borrower in accordance with, Section 10 of
this Agreement and that service so made shall be deemed completed upon the earlier to occur of Borrower’s actual receipt
thereof or three (3) days after deposit in the U.S. mails, proper postage prepaid.


 


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


 


WITHOUT INTENDING IN
ANY WAY TO LIMIT THE PARTIES’ AGREEMENT TO WAIVE THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY, if the above waiver of the right
to a trial by jury is not enforceable, the parties hereto agree that any and all disputes or controversies of any nature between
them arising at any time shall be decided by a reference to a private judge, mutually selected by the parties (or, if they cannot
agree, by the Presiding Judge of the Santa Clara County, California Superior Court) appointed in accordance with California Code
of Civil Procedure Section 638 (or pursuant to comparable provisions of federal law if the dispute falls within the exclusive jurisdiction
of the federal courts), sitting without a jury, in Santa Clara County, California; and the parties hereby submit to the jurisdiction
of such court. The reference proceedings shall be conducted pursuant to and in accordance with the provisions of California Code
of Civil Procedure Sections 638 through 645.1, inclusive. The private judge shall have the power, among others, to grant provisional
relief, including without limitation, entering temporary restraining orders, issuing preliminary and permanent injunctions and
appointing receivers. All such proceedings shall be closed to the public and confidential and all records relating thereto shall
be permanently sealed. If during the course of any dispute, a party desires to seek provisional relief, but a judge has not been
appointed at that point pursuant to the judicial reference procedures, then such party may apply to the Santa Clara County, California
Superior Court for such relief. The proceeding before the private judge shall be conducted in the same manner as it would be before
a court under the rules of evidence applicable to judicial proceedings. The parties shall be entitled to discovery which shall
be conducted in the same manner as it would be before a court under the rules of discovery applicable to judicial proceedings.
The private judge shall oversee discovery and may enforce all discovery rules and orders applicable to judicial proceedings in
the same manner as a trial court judge. The parties agree that the selected or appointed private judge shall have the power to
decide all issues in the action or proceeding, whether of fact or of law, and shall report a statement of decision thereon pursuant
to California Code of Civil Procedure Section 644(a). Nothing in this paragraph shall limit the right of any party at any time
to exercise self-help remedies, foreclose against collateral, or obtain provisional remedies. The private judge shall also determine
all issues relating to the applicability, interpretation, and enforceability of this paragraph.


 



     


     


    




This Section 11 shall
survive the termination of this Agreement.


 


12                
GENERAL PROVISIONS


 


12.1           
Termination Prior to Maturity Date; Survival.  All covenants, representations and warranties made in this Agreement
shall continue in full force until this Agreement has terminated pursuant to its terms and all Obligations (other than inchoate
indemnity obligations, and any other obligations which, by their terms, are to survive the termination of this Agreement, and any
Obligations under Bank Services Agreements that are cash collateralized in accordance with Section 4.1 of this Agreement) have
been satisfied. So long as Borrower has satisfied the Obligations (other than inchoate indemnity obligations, and any other obligations
which, by their terms, are to survive the termination of this Agreement, and any Obligations under Bank Services Agreements that
are cash collateralized in accordance with Section 4.1 of this Agreement), this Agreement may be terminated prior to the Revolving
Line Maturity Date by Borrower, effective three (3) Business Days after written notice of termination is given to Bank, which notice
may be conditioned upon the consummation of a financing or other events and may be revoked by Borrower if such condition has or
will not occur on the proposed termination date. Those obligations that are expressly specified in this Agreement as surviving
this Agreement’s termination shall continue to survive notwithstanding this Agreement’s termination.


 


12.2           
Successors and Assigns. This Agreement binds and is for the benefit of the successors and permitted assigns of each
party. Borrower may not assign this Agreement or any rights or obligations under it without Bank’s prior written consent
(which may be granted or withheld in Bank’s discretion). Bank has the right, without the consent of or notice to Borrower,
to sell, transfer, assign, negotiate, or grant participation in all or any part of, or any interest in, Bank’s obligations,
rights, and benefits under this Agreement and the other Loan Documents.


 


12.3           
Indemnification. Borrower agrees to indemnify, defend and hold Bank and its directors, officers, employees, agents,
attorneys, or any other Person affiliated with or representing Bank (each, an “Indemnified Person”) harmless
against: (i) all obligations, demands, claims, and liabilities (collectively, “Claims”) claimed or asserted
by any other party in connection with the transactions contemplated by the Loan Documents; and (ii) all losses or expenses (including
Bank Expenses) in any way suffered, incurred, or paid by such Indemnified Person as a result of, following from, consequential
to, or arising from transactions between Bank and Borrower (including reasonable attorneys’ fees and expenses), except for
Claims and/or losses directly caused by such Indemnified Person’s gross negligence or willful misconduct.


 



     


     


    




This Section 12.3 shall
survive until all statutes of limitation with respect to the Claims, losses, and expenses for which indemnity is given shall have
run.


 


12.4           
Time of Essence. Time is of the essence for the performance of all Obligations in this Agreement.


 


12.5           
Severability of Provisions. Each provision of this Agreement is severable from every other provision in determining
the enforceability of any provision.


 


12.6           
Correction of Loan Documents. Bank may correct patent errors and fill in any blanks in the Loan Documents consistent
with the agreement of the parties so long as Bank provides Borrower with written notice of such correction and allows Borrower
at least ten (10) days to object to such correction. In the event of such objection, such correction shall not be made except by
an amendment signed by both Bank and Borrower.


 


12.7           
Amendments in Writing; Waiver; Integration. No purported amendment or modification of any Loan Document, or waiver,
discharge or termination of any obligation under any Loan Document, shall be enforceable or admissible unless, and only to the
extent, expressly set forth in a writing signed by the party against which enforcement or admission is sought. Without limiting
the generality of the foregoing, no oral promise or statement, nor any action, inaction, delay, failure to require performance
or course of conduct shall operate as, or evidence, an amendment, supplement or waiver or have any other effect on any Loan Document.
Any waiver granted shall be limited to the specific circumstance expressly described in it, and shall not apply to any subsequent
or other circumstance, whether similar or dissimilar, or give rise to, or evidence, any obligation or commitment to grant any further
waiver. The Loan Documents represent the entire agreement about this subject matter and supersede prior negotiations or agreements.
All prior agreements, understandings, representations, warranties, and negotiations between the parties about the subject matter
of the Loan Documents merge into the Loan Documents.


 


12.8           
Counterparts. This Agreement may be executed in any number of counterparts and by different parties on separate counterparts,
each of which, when executed and delivered, is an original, and all taken together, constitute one Agreement.


 


12.9           
Confidentiality. In handling any confidential information, Bank shall exercise the same degree of care that it exercises
for its own proprietary information, but disclosure of information may be made: (a) to Bank’s Subsidiaries or Affiliates
(such Subsidiaries and Affiliates, together with Bank, collectively, “Bank Entities”); (b) to prospective transferees
or purchasers of any interest in the Credit Extensions (provided, however, Bank shall use its best efforts to obtain any prospective
transferee’s or purchaser’s agreement to the terms of this provision); (c) as required by law, regulation, subpoena,
or other order; (d) to Bank’s regulators or as otherwise required in connection with Bank’s examination or audit; (e)
as Bank considers appropriate in exercising remedies under the Loan Documents; and (f) to third-party service providers of Bank
so long as such service providers have executed a confidentiality agreement with Bank with terms no less restrictive than those
contained herein. Confidential information does not include information that is either: (i) in the public domain or in Bank’s
possession when disclosed to Bank, or becomes part of the public domain (other than as a result of its disclosure by Bank in violation
of this Agreement) after disclosure to Bank; or (ii) disclosed to Bank by a third party, if Bank does not know that the third party
is prohibited from disclosing the information.


 


Bank Entities may use
anonymous forms of confidential information for aggregate datasets, for analyses or reporting, and for any other uses not expressly
prohibited in writing by Borrower. The provisions of the immediately preceding sentence shall survive the termination of this Agreement.


 


12.10        
Attorneys’ Fees, Costs and Expenses. In any action or proceeding between Borrower and Bank arising out of or relating
to the Loan Documents, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and other costs and
expenses incurred, in addition to any other relief to which it may be entitled.


 



     


     


    




12.11        
Electronic Execution of Documents. The words “execution,” “signed,” “signature”
and words of like import in any Loan Document shall be deemed to include electronic signatures or the keeping of records in electronic
form, each of which shall be of the same legal effect, validity and enforceability as a manually executed signature or the use
of a paper-based recordkeeping systems, as the case may be, to the extent and as provided for in any applicable law, including,
without limitation, any state law based on the Uniform Electronic Transactions Act.


 


12.12        
Right of Setoff. Borrower hereby grants to Bank a Lien and a right of setoff as security for all Obligations to Bank,
whether now existing or hereafter arising upon and against all deposits, credits, collateral and property, now or hereafter in
the possession, custody, safekeeping or control of Bank or any entity under the control of Bank (including a subsidiary of Bank)
or in transit to any of them. At any time after the occurrence and during the continuance of an Event of Default, without demand
or notice, Bank may setoff the same or any part thereof and apply the same to any liability or Obligation of Borrower even though
unmatured and regardless of the adequacy of any other collateral securing the Obligations. ANY AND ALL RIGHTS TO REQUIRE BANK TO
EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT
OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF BORROWER, ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY
WAIVED.


 


12.13        
Captions. The headings used in this Agreement are for convenience only and shall not affect the interpretation of this
Agreement.


 


12.14        
Construction of Agreement. The parties mutually acknowledge that they and their attorneys have participated in the preparation
and negotiation of this Agreement. In cases of uncertainty this Agreement shall be construed without regard to which of the parties
caused the uncertainty to exist.


 


12.15        
Relationship. The relationship of the parties to this Agreement is determined solely by the provisions of this Agreement.
The parties do not intend to create any agency, partnership, joint venture, trust, fiduciary or other relationship with duties
or incidents different from those of parties to an arm’s-length contract.


 


12.16        
Third Parties. Nothing in this Agreement, whether express or implied, is intended to: (a) confer any benefits, rights
or remedies under or by reason of this Agreement on any persons other than the express parties to it and their respective permitted
successors and assigns; (b) relieve or discharge the obligation or liability of any person not an express party to this Agreement;
or (c) give any person not an express party to this Agreement any right of subrogation or action against any party to this Agreement.


 


13                
DEFINITIONS


 


13.1           
Definitions. As used in the Loan Documents, the word “shall” is mandatory, the word “may” is
permissive, the word “or” is not exclusive, the words “includes” and “including” are not limiting,
the singular includes the plural, and numbers denoting amounts that are set off in brackets are negative. As used in this Agreement,
the following capitalized terms have the following meanings:


 


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


 


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


 


“Administrator”
is an individual that is named:


 


(a)                
as an “Administrator” in the “SVB Online Services” form completed by Borrower with the authority
to determine who will be authorized to use SVB Online Services (as defined in Bank’s Online Banking Agreement as in effect
from time to time) on behalf of Borrower; and


 



     


     


    




(b)                
as an Authorized Signer of Borrower in an approval by the Board.


 


“Advance”
or “Advances” means a revolving credit loan (or revolving credit loans) under the Revolving Line.


 


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


 


“Agreement”
is defined in the preamble hereof.


 


“Authorized
Signer” is any individual listed in Borrower’s Borrowing Resolution who is authorized to execute the Loan Documents,
including making (and executing if applicable) any Credit Extension request, on behalf of Borrower.


 


“Availability
Amount” is (a) the lesser of (i) the Revolving Line or (ii) the amount available under the Borrowing Base minus (b) the
outstanding principal balance of any Advances.


 


“Bank”
is defined in the preamble hereof.


 


“Bank Entities”
is defined in Section 12.9.


 


“Bank Expenses”
are all audit fees and expenses, costs, and expenses (including reasonable attorneys’ fees and expenses) for preparing, amending,
negotiating, administering, defending and enforcing the Loan Documents (including, without limitation, those incurred in connection
with appeals or Insolvency Proceedings) or otherwise incurred with respect to Borrower or any Guarantor.


 


“Bank of America
Lockbox Accounts” is defined in Section 6.8(a).


 


“Bank Services”
are any products, credit services, and/or financial accommodations previously, now, or hereafter provided to Borrower or any of
its Subsidiaries by Bank or any Bank Affiliate, including, without limitation, any letters of credit, cash management services
(including, without limitation, merchant services, direct deposit of payroll, business credit cards, and check cashing services),
interest rate swap arrangements, and foreign exchange services as any such products or services may be identified in Bank’s
various agreements related thereto (each, a “Bank Services Agreement”).


 


“Bank Services
Agreement” is defined in the definition of Bank Services.


 


“Board”
is Borrower’s board of directors.


 


“Borrower”
is defined in the preamble hereof.


 


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


 


“Borrowing
Base” is eighty-five percent (85%) of Eligible Accounts plus the least of (i) fifty percent (50%) of Eligible Inventory
(valued at the lower of cost or wholesale fair market value), (ii) Three Million Seven Hundred Fifty Thousand Dollars ($3,750,000)
or (iii) an amount that would represent twenty-five percent (25%) of the total Availability Amount, all as determined by Bank from
Borrower’s most recent Borrowing Base Report (and as may subsequently be updated by Bank based upon information received
by Bank including, without limitation, Accounts that are paid and/or billed following the date of the Borrowing Base Report); provided,
however, that Bank has the right to decrease the foregoing amounts and percentages in its good faith business judgment to mitigate
the impact of events, conditions, contingencies, or risks which may materially and adversely affect the Collateral or its value.
Bank shall use commercially reasonable efforts to notify Borrower of any such decrease.


 



     


     


    




“Borrowing
Base Report” is that certain report of the value of certain Collateral in the form specified by Bank to Borrower from
time to time.


 


“Borrowing
Resolutions” are, with respect to any Person, those resolutions adopted by such Person’s board of directors (and,
if required under the terms of such Person’s Operating Documents, stockholders) and delivered by such Person to Bank approving
the Loan Documents to which such Person is a party and the transactions contemplated thereby, together with a certificate executed
by its secretary on behalf of such Person certifying (a) such Person has the authority to execute, deliver, and perform its obligations
under each of the Loan Documents to which it is a party, (b) that set forth as a part of or attached as an exhibit to such certificate
is a true, correct, and complete copy of the resolutions then in full force and effect authorizing and ratifying the execution,
delivery, and performance by such Person of the Loan Documents to which it is a party, (c) the name(s) of the Person(s) authorized
to execute the Loan Documents, including making (and executing if applicable) any Credit Extension request, on behalf of such Person,
together with a sample of the true signature(s) of such Person(s), and (d) that Bank may conclusively rely on such certificate
unless and until such Person shall have delivered to Bank a further certificate canceling or amending such prior certificate.


 


“Bridge Bank
Account” is defined in Section 6.8(a).


 


“Business
Day” is any day that is not a Saturday, Sunday or a day on which Bank is closed.


 


“Cash Collateral
Account” is defined in Section 6.3(c).


 


“Cash Equivalents”
means (a) marketable direct obligations issued or unconditionally guaranteed by the United States or any agency or any State thereof
having maturities of not more than one (1) year from the date of acquisition; (b) commercial paper maturing no more than one (1)
year after its creation and having the highest rating from either Standard & Poor’s Ratings Group or Moody’s Investors
Service, Inc.; (c) Bank’s certificates of deposit issued maturing no more than one (1) year after issue; and (d) money market
funds at least ninety-five percent (95%) of the assets of which constitute Cash Equivalents of the kinds described in clauses (a)
through (c) of this definition.


 


“CFC”
means a “controlled foreign corporation” within the meaning of Section 957 of the Internal Revenue Code.


 


“Change in
Control” means (a) at any time, any “person” or “group” (as such terms are used in Sections 13(d)
and 14(d) of the Exchange Act), shall become, or obtain rights (whether by means of warrants, options or otherwise) to become,
the “beneficial owner” (as defined in Rules 13(d)-3 and 13(d)-5 under the Exchange Act), directly or indirectly, of
forty percent (40%) or more of the ordinary voting power for the election of directors of Borrower (determined on a fully diluted
basis); (b) during any period of twelve (12) consecutive months, a majority of the
members of the board of directors or other equivalent governing body of Borrower cease to be composed of individuals (i) who
were members of that board or equivalent governing body on the first day of such period, (ii) whose election or nomination
to that board or equivalent governing body was approved by individuals referred to in clause (i) above constituting at the
time of such election or nomination at least a majority of that board or equivalent governing body or (iii) whose election
or nomination to that board or other equivalent governing body was approved by individuals referred to in clauses (i) and
(ii) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing
body; or (c) at any time, Borrower shall cease to own and control, of record and beneficially, directly or indirectly, one hundred
percent (100%) of each class of outstanding capital stock of each Subsidiary of Borrower (other than director’s qualifying
shares) free and clear of all Liens (except Liens created by this Agreement).


 


“Claims”
is defined in Section 12.3.


 


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


 



     


     


    




“Collateral”
is any and all properties, rights and assets of Borrower described on Exhibit A.


 


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


 


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


 


“Compliance
Certificate” is that certain certificate in the form attached hereto as Exhibit B.


 


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


 


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


 


“Copyrights”
are any and all copyright rights, copyright applications, copyright registrations and like protections in each work of authorship
and derivative work thereof, whether published or unpublished and whether or not the same also constitutes a trade secret.


 


“Credit Extension”
is any Advance, any Overadvance, amount utilized for cash management services, or any other extension of credit by Bank for Borrower’s
benefit.


 


“Currency”
is coined money and such other banknotes or other paper money as are authorized by law and circulate as a medium of exchange.


 


“Default Rate”
is defined in Section 2.4(b).


 


“Deferred
Revenue” is all amounts received or invoiced in advance of performance under contracts and not yet recognized as revenue.


 


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


 


“Designated
Deposit Account” is the account number ending XXX-XXXX-777 maintained by Borrower with Bank (provided, however, if no
such account number is included, then the Designated Deposit Account shall be any deposit account of Borrower maintained with Bank
as chosen by Bank).


 



     


     


    




“Dollars,”
“dollars” or use of the sign “$” means only lawful money of the United States and not any other
currency, regardless of whether that currency uses the “$” sign to denote its currency or may be readily converted
into lawful money of the United States.


 


“Dollar Equivalent”
is, at any time, (a) with respect to any amount denominated in Dollars, such amount, and (b) with respect to any amount denominated
in a Foreign Currency, the equivalent amount therefor in Dollars as determined by Bank at such time on the basis of the then-prevailing
rate of exchange in San Francisco, California, for sales of the Foreign Currency for transfer to the country issuing such Foreign
Currency.


 


“Domestic
Subsidiary” means a Subsidiary organized under the laws of the United States or any state or territory thereof or the
District of Columbia (excluding any FSHCO).


 


“Effective
Date” is defined in the preamble hereof.


 


“Eligible
Accounts” means Accounts owing to Borrower which arise in the ordinary course of Borrower’s business that meet
all Borrower’s representations and warranties in Section 5.3, that have been, at the option of Bank, confirmed in accordance
with Section 6.3(f) of this Agreement, and are due and owing from Account Debtors deemed creditworthy by Bank in its good faith
business judgment. Bank reserves the right at any time after the Effective Date to adjust any of the criteria set forth below and
to establish new criteria in its good faith business judgment. Bank shall use commercially reasonable efforts to notify Borrower
of any such adjustment. Unless Bank otherwise agrees in writing, Eligible Accounts shall not include:


 


(a)                
Accounts (i) for which the Account Debtor is Borrower’s Affiliate, officer, employee, investor, or agent, or
(ii) that are intercompany Accounts;


 


(b)                
Accounts that the Account Debtor has not paid within ninety (90) days of invoice date regardless of invoice payment period
terms;


 


(c)                
Accounts with credit balances over ninety (90) days from invoice date;


 


(d)                
Accounts owing from an Account Debtor if fifty percent (50%) or more of the Accounts owing from such Account Debtor have
not been paid within ninety (90) days of invoice date;


 


(e)                
Accounts billed from and/or payable to Borrower outside of the United States (sometimes called foreign invoiced accounts)
or (ii) whose billing address (as set forth in the applicable invoice for such Account) is not in the United States, unless in
the case of both (i) and (ii) such Accounts are otherwise approved by Bank in writing on a case-by-case basis in its sole discretion;


 


(f)                 
Accounts in which Bank does not have a first priority, perfected security interest under all applicable laws;


 


(g)                
Accounts billed and/or payable in a Currency other than Dollars;


 


(h)                
Accounts owing from an Account Debtor to the extent that Borrower is indebted or obligated in any manner to the Account
Debtor (as creditor, lessor, supplier or otherwise - sometimes called “contra” accounts, accounts payable, customer
deposits or credit accounts);


 


(i)                  
Accounts with or in respect of accruals for marketing allowances, incentive rebates, price protection, cooperative advertising
and other similar marketing credits, unless otherwise approved by Bank in writing;


 


(j)                 
Accounts owing from an Account Debtor which is a United States government entity or any department, agency, or instrumentality
thereof unless Borrower has assigned its payment rights to Bank and the assignment has been acknowledged under the Federal Assignment
of Claims Act of 1940, as amended;


 



     


     


    




(k)                
Accounts with customer deposits and/or with respect to which Borrower has received an upfront payment, to the extent of
such customer deposit and/or upfront payment;


 


(l)                  
Accounts for demonstration or promotional equipment, or in which goods are consigned, or sold on a “sale guaranteed”,
“sale or return”, “sale on approval”, or other terms if Account Debtor’s payment may be conditional;


 


(m)              
Accounts owing from an Account Debtor where goods or services have not yet been rendered to the Account Debtor (sometimes
called memo billings or pre-billings);


 


(n)                
Accounts subject to contractual arrangements between Borrower and an Account Debtor where payments shall be scheduled or
due according to completion or fulfillment requirements (sometimes called contracts accounts receivable, progress billings, milestone
billings, or fulfillment contracts);


 


(o)                
Accounts owing from an Account Debtor the amount of which may be subject to withholding based on the Account Debtor’s
satisfaction of Borrower’s complete performance (but only to the extent of the amount withheld; sometimes called retainage
billings);


 


(p)                
Accounts subject to trust provisions, subrogation rights of a bonding company, or a statutory trust;


 


(q)                
Accounts owing from an Account Debtor that has been invoiced for goods that have not been shipped to the Account Debtor
unless Bank, Borrower, and the Account Debtor have entered into an agreement acceptable to Bank wherein the Account Debtor acknowledges
that (i) it has title to and has ownership of the goods wherever located, (ii) a bona fide sale of the goods has occurred, and
(iii) it owes payment for such goods in accordance with invoices from Borrower (sometimes called “bill and hold” accounts);


 


(r)                 
Accounts for which the Account Debtor has not been invoiced;


 


(s)                 
Accounts that represent non-trade receivables or that are derived by means other than in the ordinary course of Borrower’s
business;


 


(t)                 
Accounts for which Borrower has permitted Account Debtor’s payment to extend beyond ninety (90) days (including Accounts
with a due date that is more than ninety (90) days from invoice date);


 


(u)                
Accounts arising from chargebacks, debit memos or other payment deductions taken by an Account Debtor;


 


(v)                
Accounts arising from product returns and/or exchanges (sometimes called “warranty” or “RMA” accounts);


 


(w)               
Accounts in which the Account Debtor disputes liability or makes any claim (but only up to the disputed or claimed amount),
or if the Account Debtor is subject to an Insolvency Proceeding (whether voluntary or involuntary), or becomes insolvent, or goes
out of business;


 


(x)                
Accounts owing from an Account Debtor with respect to which Borrower has received Deferred Revenue (but only to the extent
of such Deferred Revenue);


 


(y)                
Accounts owing from an Account Debtor, whose total obligations to Borrower exceed twenty-five percent (25%) of all Accounts,
for the amounts that exceed that percentage, unless Bank approves in writing; and


 


(z)                
Accounts for which Bank in its good faith business judgment determines collection to be doubtful, including, without limitation,
accounts represented by “refreshed” or “recycled” invoices.


 



     


     


    




“Eligible
Inventory” means Inventory that meets all of Borrower’s representations and warranties in Section 5.3 and is otherwise
acceptable to Bank in all respects.


 


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


 


“ERISA”
is the Employee Retirement Income Security Act of 1974, and its regulations.


 


“Event of
Default” is defined in Section 8.


 


“Exchange
Act” is the Securities Exchange Act of 1934, as amended.


 


“Foreign Currency”
means lawful money of a country other than the United States.


 


“Foreign Subsidiary”
means a Subsidiary that is not a Domestic Subsidiary.


 


“FSHCO”
means any Subsidiary organized under the laws of any political subdivision of the United States (including any disregarded entity
for U.S. federal income tax purposes), substantially all of the assets of which consist of, directly or indirectly, equity securities
of one or more CFCs or Indebtedness of such CFCs.


 


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


 


“FX Contract”
is any foreign exchange contract by and between Borrower and Bank under which Borrower commits to purchase from or sell to Bank
a specific amount of Foreign Currency on a specified date.


 


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


 


“General Intangibles”
is all “general intangibles” as defined in the Code in effect on the date hereof with such additions to such term as
may hereafter be made, and includes without limitation, all Intellectual Property, claims, income and other tax refunds, security
and other deposits, payment intangibles, contract rights, options to purchase or sell real or personal property, rights in all
litigation presently or hereafter pending (whether in contract, tort or otherwise), insurance policies (including without limitation
key man, property damage, and business interruption insurance), payments of insurance and rights to payment of any kind.


 


“Governmental
Approval” is any consent, authorization, approval, order, license, franchise, permit, certificate, accreditation, registration,
filing or notice, of, issued by, from or to, or other act by or in respect of, any Governmental Authority.


 


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


 


“Guarantor”
is any Person providing a Guaranty in favor of Bank.


 


“Guaranty”
is any guarantee of all or any part of the Obligations, as the same may from time to time be amended, restated, modified or otherwise
supplemented.


 



     


     


    




“Indebtedness”
is (a) indebtedness for borrowed money or the deferred price of property or services, such as reimbursement and other obligations
for surety bonds and letters of credit, (b) obligations evidenced by notes, bonds, debentures or similar instruments, (c) capital
lease obligations, and (d) Contingent Obligations.


 


“Indemnified
Person” is defined in Section 12.3.


 


“Indentures”
means, collectively, (i) that certain Indenture between Borrower as issuer and U.S. Bank National Association as Indenture Trustee
dated as of February 4, 2014, (ii) that certain First Supplemental Indenture between Borrower as issuer and U.S. Bank National
Association as Indenture Trustee dated as of February 4, 2014, and (iii) that certain Second Supplemental Indenture between Borrower
as issuer and U.S. Bank National Association as Indenture Trustee dated as of March 6, 2018, which provide for the issuance from
time to time of debentures, notes or other debt instruments of Borrower, to be issued in one or more series.


 


“Initial Audit”
is Bank’s inspection of Borrower’s Accounts, the Collateral, and Borrower’s Books, with results satisfactory
to Bank in its sole and absolute discretion.


 


“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 relief.


 


“Intellectual
Property” means, with respect to any Person, all of such Person’s right, title, and interest in and to the following:


 


(a)                
its Copyrights, Trademarks and Patents;


 


(b)                
any and all trade secrets and trade secret rights, including, without limitation, any rights to unpatented inventions, know-how
and operating manuals;


 


(c)                
any and all source code;


 


(d)                
any and all design rights which may be available to such Person;


 


(e)                
any and all claims for damages by way of past, present and future infringement of any of the foregoing, with the right,
but not the obligation, to sue for and collect such damages for said use or infringement of the Intellectual Property rights identified
above; and


 


(f)                 
all amendments, renewals and extensions of any of the Copyrights, Trademarks or Patents.


 


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


 


“Investment”
is any beneficial ownership interest in any Person (including stock, partnership interest or other securities), and any loan, advance
or capital contribution to any Person.


 


“Key Person”
is each of Borrower’s (a) Chief Executive Officer, who is Stephen Christopher Linthwaite as of the Effective Date, and (b)
Chief Financial Officer, who is Vikram Jog as of the Effective Date.


 


“Letter of
Credit” is a standby or commercial letter of credit issued by Bank upon request of Borrower based upon an application,
guarantee, indemnity, or similar agreement.


 


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


 



     


     


    




“Liquidity”
is (i) unrestricted cash at Bank, plus (ii) unrestricted cash at accounts outside Bank but subject to a Control Agreement, plus
(iii) the Availability Amount.


 


“Loan Documents”
are, collectively, this Agreement and any schedules, exhibits, certificates, notices, and any other documents related to this Agreement,
any Bank Services Agreement, any subordination agreement, any note, or notes or guaranties executed by Borrower or any Guarantor,
and any other present or future agreement by Borrower and/or any Guarantor with or for the benefit of Bank, all as amended, restated,
or otherwise modified.


 


“Material
Adverse Change” is (a) a material impairment in the perfection or priority of Bank’s Lien in the Collateral or
in the value of such Collateral; (b) a material adverse change in the business, operations, or condition (financial or otherwise)
of Borrower; or (c) a material impairment of the prospect of repayment of any portion of the Obligations.


 


“Monthly Financial
Statements” is defined in Section 6.2(c).


 


“Obligations”
are Borrower’s obligations to pay when due any debts, principal, interest, fees, Bank Expenses, the Revolving Line Commitment
Fee, the Termination Fee, the Unused Revolving Line Facility Fee, and other amounts Borrower owes Bank now or later, whether under
this Agreement, the other Loan Documents, or otherwise, including, without limitation, all obligations relating to Bank Services
and interest accruing after Insolvency Proceedings begin and debts, liabilities, or obligations of Borrower assigned to Bank, and
to perform Borrower’s duties under the Loan Documents.


 


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


 


“Overadvance”
is defined in Section 2.3.


 


“Patents”
means all patents, patent applications and like protections including without limitation improvements, divisions, continuations,
renewals, reissues, extensions and continuations-in-part of the same.


 


“Payment/Advance
Form” is that certain form in the form attached hereto as Exhibit C.


 


“Payment Date”
is the last calendar day of each month.


 


“Perfection
Certificate” is defined in Section 5.1.


 


“Permitted
Acquisition” is an acquisition of all or substantially all of the equity interests or assets (or all or substantially
all of the assets constituting a business unit, division, product line or line of business) of a Person, provided:


 


(a)                
the Person acquired or assets acquired is a type of business (or the assets are used in a type of business) permitted to
be engaged by Borrower under this Agreement;


 


(b)                
the acquisition is non-hostile in nature;


 


(c)                
the Person or Persons to be acquired shall be solely organized in the United States and shall conduct their principal operations
in the United States;


 


(d)                
no Event of Default exists at the time of such acquisition or would exist after giving effect to such acquisition;


 



     


     


    




(e)                
the acquisition of the Person does not materially and adversely effect Borrower’s earnings;


 


(f)                 
the consideration paid in connection with all such acquisitions consists solely of (i) Borrower’s
equity securities, (ii) the net proceeds received by Borrower or its Subsidiaries in connection with a contemporaneous issuance
of equity securities solely for the purpose of consummating such acquisition or (iii) a combination of the foregoing sub-clauses
(i) and (ii) ;


 


(g)                
Bank shall have received at least thirty (30) days prior written notice of the closing date for such acquisition;


 


(h)                
Borrower shall remain a surviving legal entity; and


 


(i)                  
any Person that is acquired and remains a separate legal entity shall be organized in the United States and shall become
a co-borrower under this Agreement in accordance with Section 6.13 hereof.


 


“Permitted
Indebtedness” is:


 


(a)                
Borrower’s Indebtedness to Bank under this Agreement and the other Loan Documents (including, without limitation,
Indebtedness arising in connection with any Bank Services);


 


(b)                
Indebtedness existing on the Effective Date which is shown on the Perfection Certificate;


 


(c)                
Subordinated Debt;


 


(d)                
unsecured Indebtedness to trade creditors incurred in the ordinary course of business;


 


(e)                
Indebtedness incurred as a result of endorsing negotiable instruments received in the ordinary course of business;


 


(f)                 
Indebtedness secured by Liens permitted under clauses (a) and (c) of the definition of “Permitted Liens” hereunder;


 


(g)                
Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and similar obligations, in each case
provided in the ordinary course of business;


 


(h)                
unsecured Indebtedness pursuant to the Indentures in an aggregate principal amount not to exceed Two Hundred One Million
Dollars ($201,000,000);


 


(i)                  
Indebtedness that otherwise constitutes a Permitted Investment;


 


(j)                 
Indebtedness consisting of reimbursement obligations in respect of letters of credit, bank guarantees or bankers’
acceptances in foreign jurisdictions in a face amount not to exceed Seven Hundred Thousand Dollars ($700,000);


 


(k)                
other unsecured Indebtedness not exceeding Five Hundred Thousand Dollars ($500,000) in the aggregate outstanding at any
time; and


 


(l)                  
extensions, refinancings, modifications, amendments and restatements of any items of Permitted Indebtedness (a) through
(j) above, provided that the principal amount thereof is not increased or the terms thereof are not modified to impose more burdensome
terms upon Borrower or its Subsidiary, as the case may be.


 


“Permitted
Investments” are:


 


(a)                
Investments (including, without limitation, Subsidiaries) existing on the Effective Date which are shown on the Perfection
Certificate;


 



     


     


    




(b)                
Investments consisting of Cash Equivalents;


 


(c)                
Investments consisting of the endorsement of negotiable instruments for deposit or collection or similar transactions in
the ordinary course of Borrower;


 


(d)                
Investments consisting of deposit accounts (but only to the extent that Borrower is permitted to maintain such accounts
pursuant to Section 6.8 of this Agreement) in which Bank has a first priority perfected security interest;


 


(e)                
Investments accepted in connection with Transfers permitted by Section 7.1;


 


(f)                 
Investments consisting of the creation of a Subsidiary for the purpose of consummating a merger transaction permitted by
Section 7.3 of this Agreement, which is otherwise a Permitted Investment;


 


(g)                
Investments (i) by Borrower in Subsidiaries not to exceed Five Hundred Thousand Dollars ($500,000) in the aggregate in any
fiscal year and (ii) by Subsidiaries in other Subsidiaries in the ordinary course of business;


 


(h)                
Investments consisting of (i) travel advances and employee relocation loans and other employee loans and advances in the
ordinary course of business, and (ii) loans to employees, officers or directors relating to the purchase of equity securities of
Borrower or its Subsidiaries pursuant to employee stock purchase plans or agreements approved by the Board;


 


(i)                  
Investments (including debt obligations) received in connection with the bankruptcy or reorganization of customers or suppliers
and in settlement of delinquent obligations of, and other disputes with, customers or suppliers arising in the ordinary course
of business;


 


(j)                 
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 paragraph (j) shall not apply to Investments of
Borrower in any Subsidiary; and


 


(k)                
other Investments not otherwise permitted by Section 7.7 not exceeding Five Hundred Thousand Dollars ($500,000) in the aggregate
outstanding at any time.


 


“Permitted
Liens” are:


 


(a)                
Liens existing on the Effective Date which are shown on the Perfection Certificate or arising under this Agreement or the
other Loan Documents (including, without limitation, Liens arising in connection with any Bank Services);


 


(b)                
Liens for taxes, fees, assessments or other government charges or levies, either (i) not due and payable or (ii) being contested
in good faith and for which Borrower maintains adequate reserves on Borrower’s Books, provided that no notice of any such
Lien has been filed or recorded under the Internal Revenue Code of 1986, as amended, and the Treasury Regulations adopted thereunder;


 


(c)                
Liens securing capital leases and purchase money Liens (i) on Equipment acquired or held by Borrower incurred for financing
the acquisition of the Equipment securing no more than Five Hundred Thousand Dollars ($500,000) in the aggregate amount outstanding,
or (ii) existing on Equipment when acquired, if the Lien is confined to the property and improvements and the proceeds of the Equipment;


 


(d)                
Liens of carriers, warehousemen, suppliers, or other Persons that are possessory in nature arising in the ordinary course
of business so long as such Liens attach only to Inventory, securing liabilities in the aggregate amount not to exceed Five Hundred
Thousand Dollars ($500,000) and which are not delinquent or remain payable without penalty or which are being contested in good
faith and by appropriate proceedings which proceedings have the effect of preventing the forfeiture or sale of the property subject
thereto;


 



     


     


    




(e)                
Liens to secure payment of workers’ compensation, employment insurance, old-age pensions, social security and other
like obligations incurred in the ordinary course of business (other than Liens imposed by ERISA);


 


(f)                 
Liens incurred in the extension, renewal or refinancing of the Indebtedness secured by Liens described in (a) through (c),
but any extension, renewal or replacement Lien must be limited to the property encumbered by the existing Lien and the principal
amount of the indebtedness may not increase;


 


(g)                
leases or subleases of real property granted in the ordinary course of Borrower’s business (or, if referring to another
Person, in the ordinary course of such Person’s business), and leases, subleases, non-exclusive licenses or sublicenses of
personal property (other than Intellectual Property) granted in the ordinary course of Borrower’s business (or, if referring
to another Person, in the ordinary course of such Person’s business);


 


(h)                
non-exclusive licenses of Intellectual Property in the ordinary course of business, and licenses of Intellectual Property
that could not result in a legal transfer of title of the licensed property that may be exclusive in respects other than territory
and that may be exclusive as to territory only as to discrete geographical areas outside of the United States;


 


(i)                  
deposits to secure the performance of bids, trade contracts, leases, statutory obligations, surety and appeal bonds, performance
bonds and other obligations of a like nature, in each case in the ordinary course of business;


 


(j)                 
Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection
with the importation of goods;


 


(k)                
Liens consisting of cash collateral securing obligations described in clause (j) of the definition of “Permitted
Indebtedness” hereunder;


 


(l)                  
Liens arising from attachments or judgments, orders, or decrees in circumstances not constituting an Event of Default under
Sections 8.4 and 8.7; and


 


(m)              
Liens in favor of other financial institutions arising in connection with Borrower’s deposit and/or securities accounts
held at such institutions, provided that (i) Bank has a first priority perfected security interest in the amounts held in such
deposit and/or securities accounts (ii) such accounts are permitted to be maintained pursuant to Section 6.8 of this Agreement.


 


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


 


“Prime Rate”
is the rate of interest per annum from time to time published in the money rates section of The Wall Street Journal or any successor
publication thereto as the “prime rate” then in effect; provided that, in the event such rate of interest is less than
zero, such rate shall be deemed to be zero for purposes of this Agreement; and provided further that if such rate of interest,
as set forth from time to time in the money rates section of The Wall Street Journal, becomes unavailable for any reason as determined
by Bank, the “Prime Rate” shall mean the rate of interest per annum announced by Bank as its prime rate in effect at
its principal office in the State of California (such Bank announced Prime Rate not being intended to be the lowest rate of interest
charged by Bank in connection with extensions of credit to debtors); provided that, in the event such rate of interest is less
than zero, such rate shall be deemed to be zero for purposes of this Agreement.


 


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


 


“Regulatory
Change” means, with respect to Bank, any change on or after the date of this Agreement in United States federal, state,
or foreign laws or regulations, including Regulation D, or the adoption or making on or after such date of any interpretations,
directives, or requests applying to a class of lenders including Bank, of or under any United States federal or state, or any foreign
laws or regulations (whether or not having the force of law) by any court or governmental or monetary authority charged with the
interpretation or administration thereof.


 



     


     


    




“Requirement
of Law” is as to any Person, the organizational or governing documents of such Person, and any law (statutory or common),
treaty, rule or regulation or determination of an arbitrator or a court or other Governmental Authority, in each case applicable
to or binding upon such Person or any of its property or to which such Person or any of its property is subject.


 


“Reserves”
means, as of any date of determination, such amounts as Bank may from time to time establish and revise in its good faith business
judgment, reducing the amount of Advances and other financial accommodations which would otherwise be available to Borrower (a)
to reflect events, conditions, contingencies or risks which, as determined by Bank in its good faith business judgment, do or may
adversely affect (i) the Collateral or any other property which is security for the Obligations or its value (including without
limitation any increase in delinquencies of Accounts), (ii) the assets, business or prospects of Borrower or any Guarantor, or
(iii) the security interests and other rights of Bank in the Collateral (including the enforceability, perfection and priority
thereof); or (b) to reflect Bank's reasonable belief that any collateral report or financial information furnished by or on behalf
of Borrower or any Guarantor to Bank is or may have been incomplete, inaccurate or misleading in any material respect; or (c) in
respect of any state of facts which Bank determines constitutes an Event of Default or may, with notice or passage of time or both,
constitute an Event of Default.


 


“Responsible
Officer” is any of the Chief Executive Officer, President, Chief Financial Officer and Controller of Borrower.


 


“Restricted
License” is any material license or other material agreement (excluding any “shrink wrap” or other licenses
that are generally commercially available to the public) with respect to which Borrower is the licensee (a) that prohibits or otherwise
restricts Borrower from granting a security interest in Borrower’s interest in such license or agreement or any other property
in favor of Bank, or (b) for which a default under or termination of could reasonably be expected to interfere with Bank’s
right to sell any Collateral.


 


“Revolving
Line” is an aggregate principal amount equal to Fifteen Million Dollars ($15,000,000).


 


“Revolving
Line Commitment Fee” is defined in Section 2.5(a).


 


“Revolving
Line Maturity Date” is August 2, 2020.


 


“SEC”
shall mean the Securities and Exchange Commission, any successor thereto, and any analogous Governmental Authority.


 


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


 


“Specified
Affiliate” is any Person (a) more than ten percent (10.0%) of whose aggregate issued and outstanding equity or ownership
securities or interests, voting, non-voting or both, are owned or held directly or indirectly, beneficially or of record, by Borrower,
and/or (b) whose equity or ownership securities or interests representing more than ten percent (10.0%) of such Person’s
total outstanding combined voting power are owned or held directly or indirectly, beneficially or of record, by Borrower.


 


“Streamline
Balance” is defined in the definition of Streamline Period.


 


“Streamline
Period” is, on and after the Effective Date, provided no Event of Default has occurred and is continuing, the period
(a) commencing on the first day of the month following the day that Borrower provides to Bank evidence, satisfactory to Bank in
its sole discretion, confirming that Borrower has maintained Liquidity of greater than Twenty Million Dollars ($20,000,000) at
all times during the prior month (the “Streamline Balance”); and (b) terminating on the earlier to occur of
(i) the occurrence of an Event of Default, and (ii) the first day of the first month following any month in which Borrower fails
to maintain the Streamline Balance, as determined by Bank in its discretion. Upon the termination of a Streamline Period, Borrower
must maintain the Streamline Balance as of the last day of each calendar month for one (1) fiscal quarter prior to entering into
a subsequent Streamline Period. Borrower shall give Bank prior written notice of Borrower’s election to enter into any such
Streamline Period, and each such Streamline Period shall commence on the first day of the monthly period following the date Bank
determines, in its reasonable discretion, that the Streamline Balance has been achieved.


 



     


     


    




“Subordinated
Debt” is indebtedness incurred by Borrower subordinated to all of Borrower’s now or hereafter indebtedness to Bank
(pursuant to a subordination, intercreditor, or other similar agreement in form and substance satisfactory to Bank entered into
between Bank and the other creditor), on terms acceptable to Bank.


 


“Subsidiary”
is, as to any Person, a corporation, partnership, limited liability company or other entity of which shares of stock or other ownership
interests having ordinary voting power (other than stock or such other ownership interests having such power only by reason of
the happening of a contingency) to elect a majority of the board of directors or other managers of such corporation, partnership
or other entity are at the time owned, or the management of which is otherwise controlled, directly or indirectly through one or
more intermediaries, or both, by such Person. Unless the context otherwise requires, each reference to a Subsidiary herein shall
be a reference to a Subsidiary of Borrower.


 


“Termination
Fee” is defined in Section 2.5(b).


 


“Trademarks”
means any trademark and servicemark rights, whether registered or not, applications to register and registrations of the same and
like protections, and the entire goodwill of the business of Borrower connected with and symbolized by such trademarks.


 


“Transfer”
is defined in Section 7.1.


 


“Unused Revolving
Line Facility Fee” is defined in Section 2.5(c).


 


“Wells Fargo
Account” is defined in Section 6.8(a).


 


[Signature page follows.]


 



     


     


    




IN WITNESS WHEREOF,
the parties hereto have caused this Agreement to be executed as of the Effective Date.


 


 





	 	BORROWER:
	 	 	 
	 	FLUIDIGM CORPORATION
	 	 	 
	 	 	 
	 	By 	/s/
    Vikram Jog 
	 	 	 
	 	Name: 	Vikram
    Jog 
	 	 	 
	 	Title: 	Chief
    Financial Officer 
	 	 	 
	 	 	 
	 	 	 
	 	BANK:
	 	 	 
	 	SILICON VALLEY BANK
	 	 	 
	 	 	 
	 	By 	/s/
    Kristina Peralta 
	 	 	 
	 	Name: 	Kristina
    Peralta 
	 	 	 
	 	Title: 	Vice
    President 







 


 






    [Signature Page to Loan and Security Agreement]


     


    

EXHIBIT
A - COLLATERAL DESCRIPTION


 


The Collateral consists
of all of Borrower’s right, title and interest in and to the following personal property:


 


All goods, Accounts
(including health-care receivables), Equipment, Inventory, contract rights or rights to payment of money, leases, license agreements,
franchise agreements, General Intangibles (except as provided below), commercial tort claims, documents, instruments (including
any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, certificates of deposit, fixtures,
letters of credit rights (whether or not the letter of credit is evidenced by a writing), securities, and all other investment
property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and


 


all Borrower’s
Books relating to the foregoing, and any and all claims, rights and interests in any of the above and all substitutions for, additions,
attachments, accessories, accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or
all of the foregoing.


 


Notwithstanding the
foregoing, the Collateral does not include (a) with respect to stock in Foreign Subsidiaries, more than sixty-five percent (65.0%)
of the presently existing and hereafter arising issued and outstanding shares of capital stock owned by Borrower of any Foreign
Subsidiary which shares entitle the holder thereof to vote for directors or any other matter, (b) any interest of Borrower as a
lessee or sublessee under a real property lease or an Equipment lease if Borrower is prohibited by the terms of such lease from
granting a security interest in such lease or under which such an assignment or Lien would cause a default to occur under such
lease (but only to the extent that such prohibition is enforceable under all applicable laws including, without limitation, the
Code); provided, however, that upon termination of such prohibition, such interest shall immediately become Collateral without
any action by Borrower or Bank or (c) any Intellectual Property; provided, however, the Collateral shall include
all Accounts and all proceeds of Intellectual Property. If a judicial authority (including a U.S. Bankruptcy Court) would hold
that a security interest in the underlying Intellectual Property is necessary to have a security interest in such Accounts and
such property that are proceeds of Intellectual Property, then the Collateral shall automatically, and effective as of the Effective
Date, include the Intellectual Property to the extent necessary to permit perfection of Bank’s security interest in such
Accounts and such other property of Borrower that are proceeds of the Intellectual Property.


 


Pursuant to the terms
of a certain negative pledge arrangement with Bank, Borrower has agreed not to encumber any of its Intellectual Property without
Bank’s prior written consent.


 






    	 	Exhibit A - 1	 



     


    

EXHIBIT
B



Compliance Certificate


 


	TO:	 	SILICON VALLEY BANK	Date:	 




	FROM:	 	FLUIDIGM CORPORATION




 


The undersigned authorized
officer of FLUIDIGM CORPORATION (“Borrower”) certifies that under the terms and conditions of the Loan and Security
Agreement between Borrower and Bank (the “Agreement”), (1) Borrower is in complete compliance for the period ending
_______________ with all required covenants except as noted below, (2) there are no Events of Default, (3) all representations
and warranties in the Agreement are true and correct in all material respects on this date except as noted below; provided, however,
that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified
by materiality in the text thereof; and provided, further that those representations and warranties expressly referring to a specific
date shall be true, accurate and complete in all material respects as of such date, (4) except as noted below, Borrower, and each
of its Subsidiaries, has timely filed all required tax returns and reports, and Borrower has timely paid all foreign, federal,
state and local taxes, assessments, deposits and contributions owed by Borrower except as otherwise permitted pursuant to the terms
of Section 5.9 of the Agreement, and (5) no Liens have been levied or claims made against Borrower or any of its Subsidiaries,
if any, relating to unpaid employee payroll or benefits of which Borrower has not previously provided written notification to Bank.
Attached are the required documents supporting the certification. The undersigned certifies that these are prepared in accordance
with GAAP consistently applied from one period to the next except as explained in an accompanying letter or footnotes (and except
with respect to unaudited financials for the absence of footnotes and subject to year-end adjustments). The undersigned acknowledges
that no borrowings may be requested at any time or date of determination that Borrower is not in compliance with any of the terms
of the Agreement, and that compliance is determined not just at the date this certificate is delivered. Capitalized terms used
but not otherwise defined herein shall have the meanings given them in the Agreement.


 


	Please indicate compliance status by circling Yes/No under “Complies” column.
	 
	Reporting Covenants	Required	Complies
	 	 	 
	Monthly financial statements with 

Compliance Certificate	Monthly within 30 days	Yes   No
	10-Q, 10-K and 8-K	Within 5 days 	Yes   No
	
        A/R & A/P agings and

        Monthly perpetual inventory reports
	Monthly within 30 days	Yes   No
	Borrowing Base Report	(i) With each request for an Advance, and (ii) Monthly within 7 days 	Yes   No
	Board approved projections	Within 30 days of each fiscal year of Borrower, and within 7 days of any updates/amendments	Yes   No
	 


 


 


The following are the
exceptions with respect to the certification above: (If no exceptions exist, state “No exceptions to note.”)


 


 


 


 



    		Exhibit B	 



     


    





	FLUIDIGM CORPORATION	 	BANK USE ONLY
	 	 	 	 	 	 
	 	 	 	Received by:  	 	 
	By:  	 	 	 	 	authorized signer
	 	 	 	Date:  	 	 
	Name:  	 	 	 	 	 
	 	 	 	Verified:  	 	 
	Title:  	 	 	 	 	authorized signer
	 	 	 	Date:  	 	 
	 	 	 	 	 	 
	 	 	 	Compliance Status:                Yes     No







 


 


 






    		Exhibit B	 



     


    

EXHIBIT
C



LOAN PAYMENT/ADVANCE REQUEST FORM


 


Deadline
for same day processing is Noon Pacific Time


 


	Fax To:	 	Date: _____________________




 



Loan
Payment:


FLUIDIGM CORPORATION


 


 






	From Account #	 	 	 	To Account #	 	 	 
	 	 	(Deposit Account #)	 	 	 	(Loan Account #)	 
	Principal $	 	 	 	and/or Interest $	 	 	 




 


	Authorized Signature:	 	 	 	Phone Number:	 	 	 
	Print Name/Title:	 	 	 	 	 	 	 




 



 



Loan
Advance:


 


Complete Outgoing Wire Request section
below if all or a portion of the funds from this loan advance are for an outgoing wire.


 

	From Account #	 	 	 	To Account #	 	 	 
	 	 	(Loan Account #)	 	 	 	(Deposit
Account #)	 



 


Amount of Advance $___________________________


 


All Borrower’s representations and
warranties in the Loan and Security Agreement are true, correct and complete in all material respects on the date of the request
for an advance other than litigation which has been disclosed in writing to Bank pursuant to Section 6.2(g) and which has been
acknowledged and approved in writing by Bank in its reasonable business judgment; provided, however, that such materiality qualifier
shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text
thereof; and provided, further that those representations and warranties expressly referring to a specific date shall be true,
accurate and complete in all material respects as of such date:


 

	Authorized Signature:	 	 	 	Phone Number:	 	 	 
	Print Name/Title:	 	 	 	 	 	 	 



 


 



Outgoing Wire Request:


Complete only if all or a portion of funds from the loan
advance above is to be wired.


Deadline for same day processing is noon, Pacific Time


 





	Beneficiary Name:	 	 	 	Amount of
Wire: $	 	 	 
	Beneficiary Bank:	 	 	 	Account
Number:	 	 	 
	City and State: 	 	 	 	 	 	 	 



 



 





	Beneficiary Bank Transit (ABA) #:	 	 	 	Beneficiary
Bank Code (Swift, Sort, Chip, etc.): 	 	 	 
	 	 	 	 	(For International Wire Only)	 



 



 


	Intermediary Bank: 	 	 	 	Transit (ABA) #:	 	 	 



 


	For Further Credit to:   	 	 	 



 

	Special Instruction:	 	 	 







 


By signing below, I (we) acknowledge
and agree that my (our) funds transfer request shall be processed in accordance with and subject to the terms and conditions set
forth in the agreements(s) covering funds transfer service(s), which agreements(s) were previously received and executed by me
(us).


 


 

	Authorized Signature:	 	 	 	2nd
Signature (if required):	 	 	 
	Print Name/Title: 	 	 	 	Print Name/Title:	 	 	 
	Telephone #:	 	 	 	Telephone #:	 	 	 





 


 






    		Exhibit C	 



     


    

EXHIBIT D


 


 


 


CORPORATE
BORROWING certificatE


 


 


	Borrower:	 	FLUIDIGM CORPORATION	 	Date: August 2, 2018
	Bank:	 	SILICON VALLEY BANK	 	 




 


I hereby certify as
follows, as of the date set forth above:


 


1.       I
am the Secretary, Assistant Secretary or other officer of Borrower. My title is as set forth below.


 


2.       Borrower’s
exact legal name is set forth above. Borrower is a corporation existing under the laws of the State of Delaware.


 


3.       Attached
hereto are true, correct and complete copies of Borrower’s Certificate of Incorporation (including amendments), as filed
with the Secretary of State of the state in which Borrower is incorporated as set forth above. Such Certificate of Incorporation
have not been amended, annulled, rescinded, revoked or supplemented, and remain in full force and effect as of the date hereof.


 


4.       The
following resolutions were duly and validly adopted by Borrower’s Board of Directors at a duly held meeting of such directors
(or pursuant to a unanimous written consent or other authorized corporate action). Such resolutions are in full force and effect
as of the date hereof and have not been in any way modified, repealed, rescinded, amended or revoked, and Silicon Valley Bank (“Bank”)
may rely on them until Bank receives written notice of revocation from Borrower.


 


Resolved,
that any one of the following officers or employees of Borrower, whose names, titles and signatures are below, may act on
behalf of Borrower:


 


	Name	 	Title	 	Signature	 	Authorized
                                         to 

                                         Add or Remove 

                                         Signatories

		 		 		 	□

		 		 		 	□

		 		 		 	□

		 		 		 	□



 


Resolved
Further, that any one of the persons designated above with a checked box beside his or her name may, from time
to time, add or remove any individuals to and from the above list of persons authorized to act on behalf of Borrower.


 


Resolved
Further, that such individuals may, on behalf of Borrower:


 


Borrow Money. Borrow money
from Bank.


Execute Loan Documents.
Execute any loan documents Bank requires.


Grant Security. Grant
Bank a security interest in any of Borrower’s assets.


Negotiate Items. Negotiate
or discount all drafts, trade acceptances, promissory notes, or other indebtedness in which Borrower has an interest and receive
cash or otherwise use the proceeds.


Apply for Letters of Credit.
Apply for letters of credit from Bank.



     


     


    




Enter Derivative Transactions.
Execute spot or forward foreign exchange contracts, interest rate swap agreements, or other derivative transactions.


Further Acts. Designate
other individuals to request advances, pay fees and costs and execute other documents or agreements (including documents or agreement
that waive Borrower’s right to a jury trial) they believe to be necessary to effect these resolutions.


 


Resolved
Further, that all acts authorized by the above resolutions and any prior acts relating thereto are ratified.


 


5.       The
persons listed above are Borrower's officers or employees with their titles and signatures shown next to their names.


 


 


	 	By:	 
	 	Name:	 
	 	Title:	 




 


 


*** If the Secretary,
Assistant Secretary or other certifying officer executing above is designated by the resolutions set forth in paragraph 4 as one
of the authorized signing officers, this Certificate must also be signed by a second authorized officer or director of Borrower.


 


 


I, the __________________________
of Borrower, hereby certify as to paragraphs 1 through 5 above, as of the date set forth above.


 


 

	 	By:	 
	 	Name:	 
	 	Title:	 


 


 






     


     


    

 


 


MARKETING
CONSENT FORM


 


 


Marketing Consent
Form


SVB Financial Group is
proud of our business relationships and occasionally likes to promote these relationships. We would like to use your company’s
information and logo for promotional and marketing purposes in SVB Financial Group member businesses (collectively “SVB”)
materials. While we would appreciate your consent to all of the uses listed below, please review and select all of the uses that
you consent to below.


 


 


 


 


	 






 


Indicate your selection(s) by checking
the boxes below


		 ̈	Marketing: You consent to SVB’s use of Company’s name,
logo and images provided to us in written and oral presentations, advertising, marketing and PR materials, professional lists and
websites.



		 ̈	Deal Terms: You consent to SVB’s inclusion of the size and type
of any loan or credit facility alongside your company’s name in any oral presentations, advertising, marketing and PR materials,
customer lists, and websites.



		 ̈	Reference: You consent to SVB’s use of Company and representatives’
names as a reference for SVB.



		 ̈	Testimonial: You consent to SVB’s use of Company and representatives’
names and quotations in written and oral presentations, marketing and PR materials, and websites. Our practice is to send you a
draft of any quotation concerning Company prior to publishing.



		 ̈	News
                                         release: You consent to SVB’s use of Company’s
                                         name, trademarks, service marks, quotations and images provided to us in the SVB’s
                                         news releases concerning Company. Our practice is to send you a draft of any news release
                                         concerning Company prior to publishing.



 




 


	 



 


In order to maintain the integrity
of your logos, please provide them in:


‣
Full color and black and white versions, with or without taglines


‣
At least 300 dpi in PNG, EPS, TIF, or JPG formats (please do not send PDF or website logos).


 


 



	 



 


Please make sure to print the
Company name, and any individual names and titles as you would like them displayed in materials or lists.


 


	Company name	FLUIDIGM CORPORATION
	Additional names	 
	 


You grant to SVB a limited
license to use the information for the limited purposes above, which you can revoke upon written notice to SVB. The signer below
acknowledges that he or she has authority to bind the Company to this consent. SVB will not be responsible for versions that were
printed


prior to receiving notice revoking any such consent. Company is solely responsible for defense and maintenance of its intellectual
property.


Please contact your Relationship
Advisor or SVB representative if you have any questions.


 





	Accepted or Agreed on Behalf Of Company or Yourself
	Name	 	Title	 
	Signature	 	Today’s date	August 2, 2018
	Address	 	 	 
	Phone number	 	Email	 







 


 


Return this completed form and
any attachments to your Relationship Advisor or SVB via email at logo@svb.com.


©2014 SVB Financial Group.
All rights reserved. Silicon Valley Bank is a member of FDIC and Federal Reserve System. SVB>, SVB>Find a way, SVB Financial
Group, and Silicon Valley Bank are registered trademarks. B_SAM-14-13427 rev. 06-25-14.