Exhibit 10.5


 








 







AMENDMENT
NO. 2 (TERM LOAN CREDIT AGREEMENT)


 


AMENDMENT
NO. 2 dated as of August 1, 2018 (this “Amendment”) to the Credit Agreement dated as of July 21, 2017 (the
“Credit Agreement”) among PERNIX IRELAND PAIN DESIGNATED ACTIVITY COMPANY (f/k/a Pernix Ireland Pain Limited),
a designated activity company organized under the laws of the Republic of Ireland (the “Borrower”), the lenders
party thereto and Cantor Fitzgerald Securities, as administrative agent for the lenders (the “Agent”).


 


W I
T N E S S E T H :


 


WHEREAS,
the Borrower has requested that the Agent and the Lenders amend the Credit Agreement as set forth herein.


 


NOW, THEREFORE,
the parties hereto agree as follows:


 


Section
1. Defined Terms;
References. Unless otherwise specifically
defined herein, each term used herein that is defined in the Credit Agreement has the meaning assigned to such term in the Credit
Agreement. Each reference to “hereof”, “hereunder”, “herein” and “hereby” and
each other similar reference and each reference to “this Agreement” and each other similar reference contained in
the Credit Agreement shall, after this Amendment becomes effective, refer to the Credit Agreement as amended hereby.


 


“Exchange”
means the exchange of a certain portion of Parent’s outstanding 12% Senior Secured Notes due 2020 (the “Notes”)
for shares of common stock in Parent pursuant to the terms of those certain Exchange Agreements dated as of the date hereof by
and among Parent and, respectively, 1992 MSF International Ltd. and 1992 Tactical Credit Master Fund, L.P., in each case in the
form attached hereto as Exhibit B.


 


Section
2. Amendments to Credit Agreement. Each of the parties hereto agrees that, effective
on the Amendment Effective Date, the Credit Agreement shall be amended as follows:


 


2.1       Section
2.6(d)(ii) of the Credit Agreement is hereby amended and restated to read in its entirety as follows:


 


(ii)              
The Borrower may, at its sole discretion (an “Interest Election”), elect to pay interest on the Loans
in respect of any Interest Payment Date, (A) entirely in cash (“Cash Interest”) or (B) partly as Cash Interest
and partly by adding the amount of such interest up to a maximum amount of 2.50% per annum to the outstanding principal
amount of the Loans (“PIK Interest”, and the amount of any such PIK Interest added to the principal of the
Loans on any Interest Payment Date as required by the relevant Interest Election(s), the “Additional PIK Principal”)
(with Cash Interest and Additional PIK Principal to be allocated pro rata among the Lenders in proportion to the aggregate principal
amount of the portion of the Loan held by each Lender).


 


2.2       [Reserved.]


 




    


     


    

2.3       Section
6.6(a)(i) of the Credit Agreement is hereby amended by (i) deleting “or” at the end of sub-clause (F) therein, (ii)
replacing “.” with “, and/or” at the end of clause (G) therein, and (iii) inserting a new sub-clause (H)
immediately following sub-clause (G) as follows:


 


(H)
with respect to the Treximet Note Purchase Debt, payments of principal on the Treximet Note Purchase Debt made solely by exchanging
such Treximet Note Purchase Debt for shares of Qualified Equity Interests without any payment of cash (other than in respect of
fractional shares in an amount not to exceed $50,000).


 


2.4       Schedule
3.2 to the Credit Agreement is hereby amended and restated in its entirety as set out in Schedule 1 attached hereto.


 


2.5       Schedule
5.17 to the Credit Agreement is hereby amended and restated in its entirety as set out in Schedule 2 attached hereto.


 


Section
3. . Representations
and Warranties, Covenants and Acknowledgements. To induce the Agent and Lenders to enter
into this Amendment:


 


(a)           
 the Borrower and each other Loan Party represents and warrants that (i) as of the date hereof and after giving effect
to the amendments hereto, all of the representations and warranties made or deemed to be made under the Credit Agreement and the
other Loan Documents are true and correct, except to the extent that such representations and warranties expressly relate to an
earlier date in which case such representations and warranties shall have been true and correct on and as of such earlier date,
(ii) as of the date hereof and after giving effect to the amendments hereto, there exists no Default or Event of Default under
the Credit Agreement or any of the other Loan Documents, (iii) it has the power and is duly authorized to enter into, deliver
and perform this Amendment, (iv) this Amendment and each of the other Loan Documents is the legal, valid and binding obligation
of each Loan Party, enforceable against each Loan Party in accordance with its terms, except to the extent enforcement may be
limited under applicable bankruptcy, insolvency, reorganization, receivership, moratorium, or similar laws affecting creditors’
rights generally and the equitable discretion of the court; 


 


(b)           
each Loan Party hereby reaffirms each of the agreements, covenants, and undertakings set forth in the Credit Agreement
and each other Loan Document executed in connection therewith or pursuant to, as amended and modified hereby, to which it is a
party; and


 


(c)           
Each Loan Party acknowledges and agrees that this Amendment shall be deemed a Loan Document for all purposes under the
Credit Agreement.


 


Section
4 Effectiveness. This Amendment shall
become effective on the first date when each of the following conditions have been satisfied (the “Amendment Effective
Date”) (x) the Agent shall have received from each of the Loan Parties, the Required Lenders and the Agent (i) an executed
counterpart hereof signed by such party or facsimile or other written confirmation that such party has signed a counterpart hereof
and (ii) the fully executed Amendment No. 3 to the 2017 ABL Facility, dated as of the date hereof, in the form attached hereto
as Exhibit A and (y) substantially simultaneously therewith, the Exchange shall have been consummated.


 




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Section
5. Counterparts.
This Amendment may be signed in any number of counterparts, each of which shall
be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. Delivery of an executed
signature page of this Amendment by facsimile, email or other electronic transmission shall be effective as delivery of a manually
executed counterpart to this Amendment.


 


Section
6. Amendment, Modification
and Waiver. This Amendment may not be amended, modified or waived except by an instrument
or instruments in writing signed and delivered on behalf of each of the parties hereto.


 


Section
7. Severability. If any provision of this Amendment is held to be illegal, invalid
or unenforceable in any jurisdiction, the legality, validity and enforceability of the remaining provisions or obligations, or
of such provision or obligation in any other jurisdiction, of this Amendment and the other Loan Documents shall not be affected
or impaired thereby.


 


Section
8. Headings. Section and Subsection headings in this Amendment are included herein
for convenience of reference only and shall not constitute a part of this Amendment for any other purpose or be given any substantive
effect.


 


Section
9. Governing Law; Waiver of Jury Trial. Section 12 of the Credit Agreement is hereby
incorporated herein by reference mutatis mutandis.


 


SECTION 10.
Fees and Expenses. Borrower hereby reconfirm their respective obligations pursuant to the Credit Agreement to pay and reimburse
the Agent and the Lenders for all reasonable costs and expenses (including, without limitation, reasonable and documented fees
of counsel to the Agent and Lenders) incurred in connection with the negotiation, preparation, execution and delivery of this
Agreement and all other documents and instruments delivered in connection herewith.


 


[Remainder
of this page intentionally left blank]


 




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


 


	BORROWER:	PERNIX IRELAND PAIN DESIGNATED ACTIVITY COMPANY
	 	 
	 	 
	 	By:	 
	 	 	Name:   
	 	 	Title:



 


 


 


 


 


 


 


 



    [SIGNATURE PAGE - DDTL AMENDMENT NO. 2]


     


    

	LENDERS:	1992 MSF INTERNATIONAL LTD. 
	 	 
	 	 
	 	 	BY: HIGHBRIDGE CAPITAL MANAGEMENT, LLC, AS TRADING
    MANAGER,
	 	 	 
	 	 	By:	 
	 	 	 	Name:Jonathan Segal
	 	 	 	Title:Managing Director
	 	 	 	 
	 	 	By:	 
	 	 	 	Name:Jason Hempel
	 	 	 	Title:Managing Director



 


 

	 	1992 TACTICAL CREDIT MASTER FUND, L.P.
	 	 
	 	 
	 	 	BY: HIGHBRIDGE CAPITAL MANAGEMENT, LLC, AS TRADING
    MANAGER,
	 	 	 
	 	 	By:	 
	 	 	 	Name:Jonathan Segal
	 	 	 	Title:Managing Director
	 	 	 	 
	 	 	By:	 
	 	 	 	Name:Jason Hempel
	 	 	 	Title:Managing Director



 


 



    [SIGNATURE PAGE - DDTL AMENDMENT NO. 2]


     


    

	 	CANTOR FITZGERALD SECURITIES, as Agent
	 	 
	 	 
	 	By:	 
	 	 	Name:
	 	 	Title:




    [SIGNATURE PAGE - DDTL AMENDMENT NO. 2]


     


    

SCHEDULE
1 – AMENDED AND RESTATED SCHEDULE 3.2


 


Schedule
3.2


 


The
obligation of each Lender to make each Subsequent Loan provided for hereunder is subject to the fulfillment of each of the following
conditions precedent (the making of such extensions of credit by a Lender being conclusively deemed to be its satisfaction or
waiver of the conditions precedent):


 


		1.	If the proceeds of such
Subsequent Loan are being used, directly or indirectly, to acquire any Equity Interests of any Person or any other assets (whether
pursuant to a Permitted Acquisition or other acquisition permitted by the Agreement):



 


		a.	Agent shall have received
the results of a search of the Uniform Commercial Code filings (or equivalent filings) and judgment filings and the results of
federal tax lien searches made with respect to the acquired assets (including Target and its Subsidiaries) are contemplated to
be so acquired) and, if applicable, the Acquisition Subsidiary in the states (or other jurisdictions) of formation of such Persons
and in which the chief executive office of each such Person is located, and in such other jurisdictions as may be reasonably required
by Agent or Required Lenders, together with copies of the financing statements (or similar documents) disclosed by such search,
and accompanied by evidence satisfactory to the Agent and Required Lenders that the Liens indicated in any such financing statement
(or similar document) would constitute Permitted Liens or have been or will be contemporaneously with the funding of the initial
extension of credit released or terminated.



 


		b.	Immediately after giving
effect to the Borrowing of such Subsequent Loan, the consummation of such acquisition and the transactions related thereto, the
Target, its Subsidiaries and, if applicable, the Acquisition Subsidiary shall not be obligated on any Indebtedness other than
Permitted Indebtedness.



 


		c.	Borrower shall have delivered
to Agent a copy of the definitive sale and purchase agreement related to such acquisition (the “Acquisition Agreement”)
and any related documents reasonably requested by Agent or the Required Lenders.



 


		d.	Such acquisition shall
be consummated pursuant to the terms of the Acquisition Agreement in all material respects, substantially concurrently with the
funding of such Subsequent Loan, without giving effect to any amendments, express consents or express waivers by the Borrower
thereto or modifications to the provisions thereof that are adverse to the interests of Lender Group without the prior written
consent of the Required Lenders.



 


		e.	Agent shall have received
due diligence information relating to the Target, its Subsidiaries and, if applicable, the Acquisition Subsidiary, to



 




    


     


    

the
extent available to the Borrower or required in connection with Section 5.11 of the Agreement.


 


		f.	Agent shall have received
each of the following documents, in form and substance reasonably satisfactory to the Required Lenders, duly executed and delivered,
and each such document shall be in full force and effect:



 


		i.	supplements
                                         to the Security Agreement or other Additional Document(s) required pursuant to Section
                                         5.11 or 5.12 of the Agreement, executed by the Acquisition Subsidiary (if applicable),
                                         the Target and each of its Subsidiaries that is required to become a Guarantor pursuant
                                         to Section 5.11, ‎5.12 and/or 5.17 of the Agreement,



 


		ii.	duly
                                         executed short form security agreements with respect to the Intellectual Property owned
                                         by the Acquisition Subsidiary (if applicable), Target and each of its Subsidiaries that
                                         are required to become a Guarantor pursuant to Section 5.11, 5.12 and/or 5.17 of the
                                         Agreement, in appropriate form for filing in the United States and, upon reasonable request
                                         of the Agent, in additional applicable jurisdictions, and in a format reasonable acceptable
                                         to the Agent, 



 


		iii.	a
                                         completed Perfection Certificate for the Acquisition Subsidiary (if applicable), the
                                         Target and its Subsidiaries or otherwise with respect to the acquired assets, and



 


		iv.	executed
                                         counterparts of each other Loan Document required to perfect the Agent’s security
                                         interest in the Collateral duly executed by an Authorized Person of the Acquisition Subsidiary
                                         (if applicable), Target and each of its Subsidiaries party thereto.



 


		g.	Agent shall have received
proper financing statements (Form UCC-1 or the equivalent) for filing under the Code or other appropriate filing offices of each
jurisdiction as may be necessary to perfect the security interests granted by the Acquisition Subsidiary (if applicable), the
Target and its Subsidiaries.



 


		h.	Agent shall have received
a certificate from the Secretary of the Acquisition Subsidiary (if applicable), the Target and each of its Subsidiaries that are
required to become Loan Parties pursuant to the Agreement (i) attesting to the resolutions of its Board of Directors authorizing
its execution, delivery, and performance of the Loan Documents to which it is a party, (ii) authorizing its Authorized Persons
to execute the same, and (iii) attesting to the incumbency and signatures of such Authorized Persons.



 


		i.	Agent shall have received
copies of the Governing Documents of the Acquisition Subsidiary (if applicable), the Target and each of its



 




    


     


    

Subsidiary,
as amended, modified, or supplemented to the relevant Funding Date, which Governing Documents shall be certified by the Secretary
of such Person and with respect to Governing Documents of a Person that are charter documents, certified as of a recent date (not
more than 30 days prior to the Funding Date) by the appropriate government official.


 


		j.	To the extent customary
in the relevant jurisdiction of organization, Agent shall have received a certificate of good standing (or equivalent, to the
extent the concept is applicable) with respect to the Acquisition Subsidiary (if applicable), the Target and each of its Subsidiaries,
such certificate to be issued by the relevant authority of the jurisdiction of organization of such Person.



 


		k.	Agent
                                         shall have received opinions of the Loan Parties’ and/or Target’s counsel
                                         pursuant to Section 5.11 and/or 5.12 of the Agreement with respect to the Acquisition
                                         Subsidiary (if applicable), the Target and each of its Subsidiaries in form and substance
                                         reasonably satisfactory to Agent and the Required Lenders.



 


		l.	Borrower shall have otherwise
complied with Section 5.11 and 5.12 of the Agreement to the extent applicable (without giving effect to the post acquisition time
period for taking such actions following the acquisition).



 


		m.	Agent
                                         shall have received at least two (2) Business Days prior to the Funding Date, all documentation
                                         and other information with respect to the Acquisition Subsidiary (if applicable), Target
                                         and its Subsidiaries reasonably requested by Agent in writing at least ten (10) Business
                                         Days prior to the Funding Date, required under applicable “know your customer”
                                         and anti-money laundering rules and regulations, including the USA PATRIOT Act.



 


		n.	The
                                         Acquired Cash Flow Ratio, after giving pro forma effect to such Permitted Acquisition
                                         or other acquisition shall be greater than 1.50 to 1.00.



 


		2.	The
                                         proceeds of such Subsequent Loan shall be used in accordance with Section 5.17 of the
                                         Agreement, and, if such Subsequent Loan is being incurred for the purposes set forth
                                         in clause (i) of the introductory paragraph of Schedule 5.17, such proceeds shall be
                                         applied substantially concurrently with the funding of such Subsequent Loan or funded
                                         into a blocked account subject to a Control Agreement over which Agent has a first lien
                                         security interest, pending application of such proceeds in accordance with the terms
                                         of the Agreement and, if applicable, the applicable Acquisition Agreement.



 


		3.	Borrower shall have paid
all Lender Group Expenses incurred in connection with such Subsequent Loan, the Permitted Acquisition (if applicable) and the
transactions related thereto to the extent invoiced at least two (2) Business Days prior to the Funding Date.



 




    


     


    

		4.	Agent shall have received
a duly executed Notice of Borrowing with respect to such Subsequent Loan, executed by an Authorized Person of the Borrower and
in accordance with the requirements of the Agreement, which shall, among other things, specify in reasonable detail the proposed
use of proceeds thereof.



 


Agent shall have received a certificate
duly signed by an Authorized Person of the Borrower confirming the satisfaction of the conditions set forth in this Schedule
3.2.


 




    


     


    

SCHEDULE
2 – AMENDED AND RESTATED SCHEDULE 5.17


 


Schedule
5.17


 


Subsequent
Loans – Use of Proceeds


 


Unless
otherwise approved by the Required Lenders prior to the funding of a Subsequent Loan, the proceeds of each Subsequent Loan made
after the Closing Date shall only be used (i) for the following purposes in connection with a Permitted Acquisition
where the Acquired Cash Flow Ratio of the Target of such Permitted Acquisition, after giving pro forma effect thereto, is greater
than 1.50 to 1.00 or (ii) for working capital or other general corporate purposes not in contravention of any applicable Law or
of any Loan Document, including for the purposes of making Restricted Payments or Permitted Investments:


 


		1.	The
                                         Purchase Price required to be paid by any Loan Party or Subsidiary (including any upfront,
                                         milestone or royalty payments made to the seller or licensor) or the refinancing of such
                                         Target’s existing indebtedness, in each case in connection with the consummation
                                         of such Permitted Acquisition, and related reasonable transaction fees and expenses.



 


		2.	In
                                         connection with any new product of any Loan Party or Subsidiary acquired pursuant to
                                         such Permitted Acquisition:



 


(a)       Marketing
expenses associated with such new product, including any pre-marketing activities such as market research;


 


(b)       Selling
expenses associated with such new product, including all costs related to any incremental headcount required to support the product(s),
the cost of sales force training and any incremental sales analytics expenses (including but not limited to sales force automation
and data expenses);


 


(c)       Research
and development expenses associated with such new product, including any post-market requirements;


 


(d)       Manufacturing
expenses associated with such new product, including the cost of validation and scale-up;


 


(e)       Costs
associated with the supply chain for such new product, including the cost of third-party logistics providers, audit of any third-party
manufacturing sites, and technology transfer expenses; and/or


 


(f)       Post-closing
capital needs relating to such new product to (i) fund inventory purchases and (ii) fund other working capital needs; provided,
however, that amounts requested pursuant to this clause (ii) shall not exceed $500,000.


 




    


     


    

		3.	Interest
                                         expense and any fees pursuant to the Agreement associated with the Subsequent Loan incurred
                                         in connection with such Permitted Acquisition.



 




    


     


    

 


EXHIBIT
A – AMENDMENT NO. 3 TO THE 2017 ABL AGREEMENT


 


See attached.


 


 


 


 


 


 


 


 


 


 




    


     


    

 


EXHIBIT
B – EXCHANGE AGREEMENTS


 


See attached.