Exhibit 10.1


 


LOAN
AND SECURITY AGREEMENT


 


THIS
LOAN AND SECURITY AGREEMENT (this “Agreement”) dated as of December 13, 2019 (the “Effective Date”)
between SILICON VALLEY BANK, a California corporation with a loan production office located at 275 Grove Street, Suite
2-200, Newton, Massachusetts 02466 (“Bank”), and MOTUS GI HOLDINGS, INC., 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. Notwithstanding the foregoing, all financial covenant calculations shall be computed with respect to Borrower only, and
not on a consolidated basis. 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.


 


2.1.1 Term
Loan Advance.


 


(a) Availability.
Subject to the terms and conditions of this Agreement, upon Borrower’s request, Bank shall make one (1) advance (the “Term
Loan Advance”) on or about the Effective Date available to Borrower in an original principal amount of Eight Million
Dollars ($8,000,000.00). After repayment, no Term Loan Advance (or any portion thereof) may be reborrowed.


 


(b) Interest
Period. Commencing on the first (1st) Payment Date of the month following the month in which the Funding Date of
the Term Loan Advance occurs, and continuing on the Payment Date of each month thereafter, Borrower shall make monthly payments
of interest on the principal amount of the Term Loan Advance at the rate set forth in Section 2.2(a).


 


(c) Repayment.
Commencing on January 1, 2022 and continuing on each Payment Date thereafter, Borrower shall repay the outstanding Term Loan Advance
in (i) twenty-four (24) consecutive equal monthly installments of principal, plus (ii) monthly payments of accrued interest at
the rate set forth in Section 2.2(a). All outstanding principal and accrued and unpaid interest with respect to the Term Loan
Advance, and all other outstanding Obligations under the Term Loan Advance, are due and payable in full on the Term Loan Maturity
Date.


 


(d) Permitted
Prepayment of Term Loan Advance. Borrower shall have the option to prepay all, but not less than all, of the Term Loan Advance
advanced by Bank under this Agreement, provided Borrower (i) provides written notice to Bank of its election to prepay the Term
Loan Advance at least five (5) Business Days prior to such prepayment, and (ii) pays, on the date of such prepayment (A) all outstanding
principal plus accrued and unpaid interest, (B) the Prepayment Premium, plus (C) all other sums, if any, that shall have become
due and payable, including interest at the Default Rate with respect to any past due amounts.


 


(e) Mandatory
Prepayment Upon an Acceleration. If the Term Loan Advance is accelerated following the occurrence and during the continuance
of an Event of Default, Borrower shall immediately pay to Bank an amount equal to the sum of: (i) all outstanding principal plus
accrued and unpaid interest, (ii) the Prepayment Premium, and (iii) all other sums, if any, that shall have become due and payable,
including interest at the Default Rate with respect to any past due amounts.


 






     


     


    

 


2.2 Payment
of Interest on the Credit Extensions. 


 


(a) Interest
Rate. Subject to Section 2.2(b), the principal amount outstanding under the Term Loan Advance shall accrue interest at a floating
per annum rate equal to the greater of (i) one-half of one percent (0.50%) above the Prime Rate and (ii) five and one-half of
one percent (5.50%), which interest, in each case, shall be payable monthly in accordance with Section 2.2(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 four percent (4.0%) 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 2.2(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 and shall be computed on the basis of a 360-day year
for the actual number of days elapsed. In computing interest, (i) all payments received after 1:00 p.m. Eastern 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.


 


2.3 Fees.
Borrower shall pay to Bank:


 


(a) The
Prepayment Premium. The Prepayment Premium, when due hereunder; and


 


(b) 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).


 


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 2.3 pursuant to the terms of Section 2.4(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 2.3.


 


2.4 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 1:00 p.m. Eastern time on the date when due. Payments of principal and/or interest received after 1:00
p.m. Eastern 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.


 






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(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.


 


2.5 Withholding.


 


(a) 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) (“Taxes”), except as required
by applicable law. Specifically, however, if at any time any Governmental Authority, applicable law, regulation or international
agreement requires Borrower to make any withholding or deduction of Taxes 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; provided, however, that no such additional
amounts will paid in respect of any amounts required to be withheld (x) under FATCA or (y) under U.S. backup withholding rules.
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 2.5 shall survive the termination
of this Agreement.


 


(b) If
any assignee of Bank’s rights under Section 12.2 of this Agreement is not a “United States Person” as defined
in Section 7701(a)(30) of the Internal Revenue Code, as amended from time to time (such assignee, a “Non-U.S. Lender”),
such Non-U.S. Lender shall, upon becoming party to this Agreement, to the extent that such Non-U.S. Lender is entitled to an exemption
from U.S. withholding tax on interest, deliver to Borrower a complete and properly executed IRS Form W-8BEN, W-8ECI or W-8IMY,
as appropriate, or any successor form prescribed by the IRS, establishing that such Non-U.S. Lender is entitled to such exemption
from U.S. withholding tax on interest. Notwithstanding Section 2.5(a) above, Borrower shall not be required to pay any additional
amount to any Non-U.S. Lender under Section 2.5(a) if such Non-U.S. Lender fails or is unable to deliver the forms, certificates
or other evidence described in the preceding sentence, unless such non-U.S. Lender’s failure or inability to deliver such
forms is the result of any change in any applicable law, treaty or governmental rule, or any change in the interpretation thereof
after such Non-U.S. Lender became a party to 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 signatures to the Loan Documents;


 


(b) duly
executed signatures to the Control Agreements, if any;


 


(c) the
Operating Documents and long-form good standing certificates of Borrower certified by the Secretary of State of Delaware and each
other 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;


 


(d) a
secretary’s corporate borrowing certificate of Borrower with respect to Borrower’s Operating Documents, incumbency,
specimen signatures and resolutions authorizing the execution and delivery of this Agreement and the other Loan Documents;


 






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(e) duly
executed signatures or authorized confirmation by the Board to the completed Borrowing Resolutions for Borrower;


 


(f) 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;


 


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


 


(h) duly
executed signatures to the Stock Pledge Agreement, original stock powers and Bank’s possession of original stock certificates;


 


(i) duly
executed signatures to a Cash Pledge Agreement, in form and substance acceptable to Bank;


 


(j) evidence
reasonably satisfactory to Bank that the insurance policies required by Section 6.5 hereof are in full force and effect; and


 


(k) payment
of the fees and Bank Expenses then due as specified in Section 2.3 hereof.


 


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


 


(a) except
as otherwise provided in Section 3.4, timely receipt of an executed Payment/Advance Form;


 


(b) the
representations and warranties in this Agreement shall be true, accurate, and complete in all material respects on the date of
the Payment/Advance Form 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 reasonable satisfaction that there has not been any material impairment in the general affairs, management,
results of operation, financial condition or the prospect of repayment of the Obligations, or any material adverse deviation by
Borrower from the most recent business plan of Borrower presented to and accepted by Bank.


 


3.3 Covenant
to Deliver. 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.


 


3.4 Procedures
for Borrowing. Subject to the prior satisfaction of all other applicable conditions to the making of a Credit Extension set
forth in this Agreement, to obtain a Credit Extension, Borrower shall notify Bank (which notice shall be irrevocable) by electronic
mail, facsimile, or telephone by 1:00 p.m. Eastern time at least two (2) Business Days before the proposed Funding Date of such
Credit Extension. Together with any such electronic or facsimile notification, Borrower shall deliver to Bank by electronic mail
or facsimile a completed Payment/Advance Form executed by an Authorized Signer. Bank may rely on any telephone notice given by
a person whom Bank believes is an Authorized Signer. Bank shall credit the Credit Extensions to the Designated Deposit Account.
Bank may make Credit Extensions under this Agreement based on instructions from an Authorized Signer or without instructions if
the Credit Extensions are necessary to meet Obligations which have become due.


 






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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 that are permitted pursuant to the
terms of this Agreement to have superior priority to Bank’s Lien in this Agreement).


 


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, in each case,
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 that
are permitted pursuant to the terms of this Agreement to have superior priority to Bank’s Lien under this Agreement). 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. Upon Borrower’s written request, Bank
shall provide Borrower with copies of the filed financing statements.


 






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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 (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 in all material respects (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 are being obtained pursuant to Section 6.1(b))) 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 6.6(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) material Intellectual Property licensed to Borrower and noted on the Perfection Certificate. 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 noted on the Perfection Certificate, Borrower is not a party to, nor is it bound by, any Restricted License.


 






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5.3 Litigation.
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 involving more than, individually or in the aggregate, One Hundred Thousand Dollars ($100,000.00).


 


5.4 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.


 


5.5 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.


 


5.6 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 legally. 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.


 


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


 


5.8 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
Twenty-Five Thousand Dollars ($25,000.00).


 


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 in excess of Twenty-Five Thousand Dollars ($25,000.00). 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.


 


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


 


5.10 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).


 






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5.11 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) Maintain
its and all its Subsidiaries’ legal existence and good standing 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 where the failure to comply could reasonably be expected to result
in a material adverse effect on Borrower’s business or operations.


 


(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 to Bank in all of its property. 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) Monthly
Financial Statements. 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 consolidated operations for such month certified
by a Responsible Officer and in a form acceptable to Bank (the “Monthly Financial Statements”);


 


(b) Monthly
Compliance Certificate. 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 setting forth calculations showing compliance
with the financial covenants set forth in this Agreement and such other information as Bank may reasonably request;


 


(c) Board
Projections. Within ninety (90) days after the last day of each fiscal year of Borrower, and contemporaneously with any material
changes thereto, annual Board-approved operating budgets and financial projections, in a form acceptable to Bank;


 


(d) Annual
Audited Financial Statements. As soon as available, but no later than one hundred eighty (180) days after the last day of
Borrower’s fiscal year, audited consolidated financial statements prepared under GAAP, consistently applied, together with
an unqualified opinion on the financial statements from an independent certified public accounting firm reasonably acceptable
to Bank;


 


(e) Other
Statements. Within five (5) days of delivery, copies of all statements, reports and notices made available to Borrower’s
security holders or to any holders of Subordinated Debt;


 






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(f) SEC
Filings. In the event that Borrower becomes subject to the reporting requirements under the Exchange Act, within five (5)
days of filing, copies of all periodic and other reports, proxy statements and other materials filed by Borrower 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, any filings to the SEC’s Electronic Data
Gathering, Analysis, and Retrieval System shall be deemed a filing given to Bank, without any further action required by Borrower;


 


(g) Legal
Action Notice. A 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 Hundred Thousand Dollars ($100,000.00) or more;


 


(h) Beneficial
Ownership Information. Prompt written notice of any changes to the beneficial ownership information set out in Section 14
of 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


 


(i) Other
Financial Information. Other financial information reasonably requested by Bank.


 


6.3 Inventory;
Returns. Keep all Inventory in good and marketable condition, free from material defects. Returns and allowances between Borrower
and its Account Debtors shall follow Borrower’s customary practices as they exist at the Effective Date. Borrower must promptly
notify Bank of all returns, recoveries, disputes and claims that involve more than One Hundred Thousand Dollars ($100,000.00).


 


6.4 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 5.8 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.


 


6.5 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 reasonably satisfactory to Bank. All property policies shall have
a lender’s loss payable endorsement showing Bank as the sole 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, (a) 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 One Hundred Thousand Dollars ($100,000.00) in the aggregate for all losses under all casualty
policies in any one (1) year, toward the replacement or repair of destroyed or damaged property; provided that any such replaced
or repaired property (i) shall be of equal or like value as the replaced or repaired Collateral and (ii) shall be deemed Collateral
in which Bank has been granted a first priority security interest, and (b) after the occurrence and during the continuance of
an Event of Default, all proceeds payable under such casualty policy shall, at the option of Bank, be payable to Bank on account
of the Obligations


 


(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 6.5 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 6.5 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 6.5, and take any action under the policies Bank
deems prudent.


 






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6.6 Operating
Accounts.


 


(a) Maintain
all of its and all of its Subsidiaries’ operating accounts, the Cash Collateral Account, and excess cash with Bank and Bank’s
Affiliates. Notwithstanding the foregoing, Borrower and its Subsidiaries shall be permitted to maintain (i) one (1) account with
Bank Leumi (the “Permitted Account”), provided that the maximum balance in the Permitted Account shall not
at any time exceed the equivalent of Three Million Dollars ($3,000,000.00) and (ii) during the Transition Period, its existing
accounts as disclosed on the Perfection Certificate (the “Existing Accounts”). In the event that the Existing
Accounts are not closed prior to the expiration of the Transition Period, Borrower shall be permitted to maintain the Existing
Accounts subject to Section 6.6(b) hereof and provided that the maximum aggregate balance in all such accounts together shall
not at any time exceed Five Hundred Thousand Dollars ($500,000.00) in the aggregate.


 


(b) 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 Permitted Account, (ii) the
Existing Accounts during the Transition Period, 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.


 


6.7 Liquidity
Requirement. At all times, Borrower shall maintain unrestricted and unencumbered cash in accounts with Bank in an amount equal
to at least Ten Million Dollars ($10,000,000.00) (the “Liquidity Requirement”). If Borrower fails to comply
with the Liquidity Requirement (which failure in and of itself is not an Event of Default) (the “Trigger Event”),
Borrower shall immediately deposit into the Cash Collateral Account unrestricted and unencumbered cash in an amount of at least
one hundred percent (100.0%) of the outstanding principal amount of the Term Loan Advance owing on the date of the Trigger Event
(as determined by Bank), to secure all of the Obligations relating to the Term Loan Advance (a “Cash Collateralization”). 
Borrower hereby authorizes and directs Bank to transfer to the Cash Collateral Account an amount equal to one hundred percent
(100.0%) of the outstanding principal amount of the Term Loan Advance owing on the date of the Trigger Event (as determined by
Bank) if Borrower fails to effect a Cash Collateralization as required under this Section 6.7, it being understood that the foregoing
authorization shall constitute an immediate Cash Collateralization, irrespective of any delay by Bank in effecting such transfer,
to the extent that sufficient Borrower funds are then available for Bank to effect such transfer.  Notwithstanding the foregoing,
upon Bank’s receipt of evidence from Borrower that it is in compliance with the Liquidity Requirement, the unrestricted
and unencumbered cash pledged and deposited into a Cash Collateral Account, pursuant to this Section 6.7, shall be promptly remitted
to Borrower’s Designated Deposit Account.


 


6.8 Protection
of Intellectual Property Rights. 


 


(a) (i)
Use commercially reasonably efforts to protect, defend and maintain the validity and enforceability of its Intellectual Property
material to its 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; 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 within ten (10) days 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 commercially reasonably steps as Bank reasonably
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.


 






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6.9 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.


 


6.10 Access
to Collateral; Books and Records. Allow Bank, or its agents, at reasonable times, on five (5) Business Days’ notice
(provided no notice is required if an Event of Default has occurred and is continuing), to inspect the Collateral and audit and
copy Borrower’s Books. The foregoing inspections and audits shall be conducted no more often than twice every twelve (12)
months 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 at Borrower’s expense, and the charge
therefor shall be One Thousand Dollars ($1,000.00) 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 reschedule 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
($2,000.00) plus any out-of-pocket expenses incurred by Bank to compensate Bank for the anticipated costs and expenses of the
cancellation or rescheduling.


 


6.11 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 five (5) 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 effect
on any of the Governmental Approvals or otherwise on the operations of Borrower or any of its Subsidiaries.


 


6.12 Post-Closing
Deliverables. Deliver to Bank, on or prior to the date that is thirty (30) days after the Effective Date, (a) a landlord’s
consent in favor of Bank for Borrower’s leased location at 1301 East Broward Boulevard, 3rd Floor, Ft. Lauderdale,
Florida 33301 by the respective landlord thereof, together with the duly executed signatures thereto and (b) evidence reasonably
satisfactory to Bank that the insurance endorsements required by Section 6.5 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.


 


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 (including, without limitation, pursuant to a Division) (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) 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; and (f) of non-exclusive licenses for the use
of the property of Borrower or its Subsidiaries in the ordinary course of business.


 


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) Business Days after such Key Person’s departure from Borrower; or (d) permit or suffer any Change
in Control.


 






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Borrower
shall not, without at least ten (10) 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 One Hundred Thousand Dollars ($100,000.00) in Borrower’s
assets or property) or deliver any portion of the Collateral valued, individually or in the aggregate, in excess of One Hundred
Thousand Dollars ($100,000.00) 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 One Hundred Thousand Dollars ($100,000.00)
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 One Hundred Thousand Dollars ($100,000.00) 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
reasonably 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 or pursuant to a Division). A Subsidiary may merge or consolidate
into another Subsidiary or into Borrower.


 


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, 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 in Section 7.1 hereof and the
definition of “Permitted Liens” herein.


 


7.6 Maintenance
of Collateral Accounts.  Maintain any Collateral Account except pursuant to the terms of Section 6.6(b) hereof.


 


7.7 Distributions;
Investments. (a) Pay any dividends or make any distribution or payment or redeem, retire or purchase any capital stock 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; and (iii) repurchase the stock of former
employees or consultants pursuant to stock repurchase agreements so long as an Event of Default does not exist at the time of
any such repurchase and would not exist after giving effect to any such repurchase, provided that the aggregate amount of all
such repurchases does not exceed One Hundred Thousand Dollars ($100,000.00) per fiscal year; 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 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.


 


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.


 






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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 (a) meet the minimum funding requirements of ERISA, (b) prevent a Reportable Event or Prohibited
Transaction, as defined in ERISA, from occurring, or (c) comply with the Federal Fair Labor Standards Act, the failure of any
of the conditions described in clauses (a) through (c) which could reasonably be expected to have a material adverse effect on
Borrower’s business; 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 Term Loan 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, 6.4, 6.5, 6.6, 6.7, 6.8(b), or 6.12, 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 ten (10) days after the occurrence thereof;
provided, however, that if the default cannot by its nature be cured within the ten (10) day period or cannot after diligent attempts
by Borrower be cured within such ten (10) 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


 






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(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 is unable to pay its debts (including trade debts) as they become due or otherwise becomes insolvent; (b) Borrower
begins an Insolvency Proceeding; or (c) an Insolvency Proceeding is begun against Borrower and is not dismissed or stayed within
thirty (30) 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 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 One Hundred Thousand Dollars ($100,000.00); or (b) any breach or default by Borrower,
the result of which could reasonably be expected to have a material adverse effect on Borrower’s business;


 


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 One Hundred Thousand Dollars ($100,000.00) (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


 


8.10 Governmental
Approvals. Any Governmental Approval shall have been (a) revoked, rescinded, suspended, modified in an adverse manner or not
renewed in the ordinary course for a full term or (b) subject to any decision by a Governmental Authority that designates a hearing
with respect to any applications for renewal of any of such Governmental Approval or that could result in the Governmental Authority
taking any of the actions described in clause (a) above, and such decision or such revocation, rescission, suspension, modification
or non-renewal (i) cause, or could reasonably be expected to cause, a Material Adverse Change, or (ii) adversely affects the legal
qualifications of Borrower or any of its Subsidiaries to hold such Governmental Approval in any applicable jurisdiction and such
revocation, rescission, suspension, modification or non-renewal could reasonably be expected to affect the status of or legal
qualifications of Borrower or any of its Subsidiaries to hold any Governmental Approval in any other jurisdiction.


 


9. BANK’S
RIGHTS AND REMEDIES


 


9.1 Rights
and Remedies. Upon the occurrence and during the continuance of an Event of Default beyond any applicable grace period (if
any), 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);


 






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(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;


 


(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 (i) any balances and deposits of Borrower it holds, or (ii) any 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, 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 upon the occurrence and
during the continuance of an Event of Default, to: (a) endorse Borrower’s name on any checks 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)
settle and adjust disputes and claims about the Accounts directly with Account Debtors, for amounts and on terms Bank determines
reasonable; (d) make, settle, and adjust all claims under Borrower’s insurance policies; (e) pay, contest or settle any
Lien, charge, encumbrance, security interest, and adverse 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 have been satisfied in full and Bank is under no further obligation to make Credit
Extensions hereunder. 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 have been fully repaid and performed and Bank’s
obligation to provide Credit Extensions terminates.


 






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9.3 Protective
Payments. If Borrower fails to obtain the insurance called for by Section 6.5 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 Upon Default. If an Event of Default has occurred and is continuing, 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.


 


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.


 






    -16-


     


    

 


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:	Motus GI Holdings, Inc.
	 	 	1301 East Broward Boulevard, 3rd Floor
	 	 	Fort Lauderdale, Florida 33301
	 	 	Attn:      Andrew Taylor
	 	 	Email:   andrew@motusgi.com
	 	 	 
	 	with a copy to	 
	 	(not constituting notice):    	Lowenstein Sandler LLP
	 	 	One Lowenstein Drive
	 	 	Roseland, New Jersey 07068
	 	 	Attn:      Steven Skolnick
	 	 	Email:    sskolnick@lowenstein.com
	 	 	 
	 	If to Bank:	Silicon Valley Bank
	 	 	275 Grove Street, Suite 2-200
	 	 	Newton, Massachusetts 02466
	 	 	Attn:      Michael McMahon
	 	 	Email:    mmcmahon@svb.com
	 	 	 
	 	with a copy to:	Morrison & Foerster LLP
	 	 	200 Clarendon Street, Floor 20
	 	 	Boston, Massachusetts 02116
	 	 	Attn:      David A. Ephraim, Esquire
	 	 	Email:    DEphraim@mofo.com


 


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


 


Massachusetts
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 Boston, Masachusetts; 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. 


 


This
Section 11 shall survive the termination of this Agreement.


 






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12. GENERAL
PROVISIONS


 


12.1 Termination
Prior to Term Loan 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 have been satisfied. So long as Borrower
has satisfied the Obligations (other than inchoate indemnity obligations, 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 Term Loan Maturity Date by Borrower,
effective three (3) Business Days after written notice of termination is given to Bank. 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. Borrower shall, upon written notice of an assignment or participation delivered
to it by Bank, maintain at one of its offices in the United States a register for the recordation of the names and addresses of
all assignees or Persons holding a beneficial interest in the right to make Advances or receive amounts from Borrower in respect
of prior Advances hereunder, and principal amounts (and stated interest) of the outstanding Advances, in which each such Person
has a beneficial interest pursuant to the terms hereof from time to time (the “Register”). The entries in the
Register shall be conclusive absent manifest error, and Borrower and Bank and their respective successors and assigns shall treat
each Person whose name is recorded in the Register pursuant to the terms hereof as a beneficial owner of the right to receive
amounts hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower and any Person
whose name is recorded in the Register, at any reasonable time and from time to time upon reasonable prior notice.


 


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 (x) directly
caused by such Indemnified Person’s gross negligence or willful misconduct or (y) for Taxes, other than any Taxes that represent
Claims or losses arising from a non-Tax claim.


 


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.


 


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.


 






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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
termination of this Agreement.


 


12.10 Right
of Set Off. Borrower hereby grants to Bank, a lien, security interest and right of set off 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 Bank subsidiary)
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 set off 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.


 


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


 


12.13 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.


 


12.14 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.


 






    -19-


     


    

 


12.15 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 any “account” as 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 Borrower.


 


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


 


“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.


 


“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 any Credit Extension request, on behalf of Borrower.


 


“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.


 


“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”
means 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.


 






    -20-


     


    

 


“Borrowing
Resolutions” are, with respect to any Person, those resolutions adopted by such Person’s board of directors or
equivalent governing body (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.


 


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


 


“Cash
Collateral Account” means a separate segregated account of Borrower maintained with Bank, which is subject to the Cash
Pledge Agreement.


 


“Cash
Collateralization” is defined in Section 6.7.


 


“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 (95.0%) of the assets of which constitute Cash
Equivalents of the kinds described in clauses (a) through (c) of this definition.


 


“Cash
Pledge Agreement” is that certain Cash Pledge Agreement dated as of the Effective Date executed by Borrower in favor
of Bank


 


“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-nine percent (49.0%) or more of the ordinary voting power for the election of directors of Borrower (determined on a fully
diluted basis) other than by the sale of Borrower’s equity securities in a public offering or to venture capital or private
equity investors so long as Borrower identifies to Bank the venture capital or private equity investors at least seven (7) Business
Days prior to the closing of the transaction and provides to Bank a description of the material terms of the transaction; (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 (100.0%) of each class of outstanding capital stock of each Subsidiary of Borrower free and
clear of all Liens (except Liens created by this Agreement) and Permitted Liens that are permitted pursuant to the terms of this
Agreement to have superior priority to Bank’s Lien under this Agreement.


 


“Claims”
is defined in Section 12.3.


 






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“Code”
is the Uniform Commercial Code, as the same may, from time to time, be enacted and in effect in the Commonwealth of Massachusetts;
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 Commonwealth of Massachusetts, 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; 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 Term Loan Advance, or any other extension of credit by Bank for Borrower’s benefit.


 


“Default
Rate” is defined in Section 2.2(b).


 


“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 XXXX (last three digits), maintained by Borrower with Bank.


 


“Division”
means, in reference to any Person which is an entity, the division of such Person into two (2) or more separate Persons, with
the dividing Person either continuing or terminating its existence as part of such division, including, without limitation, as
contemplated under Section 18-217 of the Delaware Limited Liability Company Act for limited liability companies formed under Delaware
law, or any analogous action taken pursuant to any other applicable law with respect to any corporation, limited liability company,
partnership or other entity.


 






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“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.


 


“Effective
Date” is defined in the preamble hereof.


 


“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.


 


“Existing
Accounts” is defined in Section 6.6.


 


“FATCA”
means Sections 1471 through 1474 of the Internal Revenue Code as of the date of this Agreement (or any amended or successor version
that is substantially comparable and not materially more onerous to comply with), any current or future regulations or official
interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Internal Revenue Code and any fiscal
or regulatory legislation, rules, or practices adopted pursuant to any intergovernmental agreement, treaty or convention among
governmental authorities and implementing such Sections of the Internal Revenue Code.


 


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


 


“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.


 






    -23-


     


    

 


“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.


 


“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.


 


“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.


 


“Internal
Revenue Code” means the U.S. Internal Revenue Code of 1986, as amended.


 


“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 Timothy Moran as of the Effective Date
and (b) Chief Financial Officer, who is Mark Pomeranz 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.


 






    -24-


     


    

 


“Loan
Documents” are, collectively, this Agreement and any schedules, exhibits, certificates, notices, and any other documents
related to this Agreement, the Perfection Certificate, the Stock Pledge Agreement, any Control Agreements, any Bank Services Agreement,
any Cash Pledge Agreement, any subordination agreement, any note, or notes or guaranties executed by Borrower, and any other present
or future agreement by Borrower with or for the benefit of Bank in connection with this Agreement or Bank Services, 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; (c) a material impairment of the prospect of repayment of any portion of the Obligations; or (d) Bank determines,
based upon information available to it and in its reasonable judgment, that there is a substantial likelihood that Borrower shall
fail to comply with one or more of the financial covenants in Section 6 during the next succeeding financial reporting period.


 


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


 


“Non-U.S.
Lender” is defined in Section 2.5(b).


 


“Obligations”
are Borrower’s obligations to pay when due any debts, principal, interest, fees, the Prepayment Premium, Bank Expenses,
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 any 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.


 


“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 attached hereto as Exhibit C.


 


“Payment
Date” is the first (1st) calendar day of each month.


 


“Perfection
Certificate” is defined in Section 5.1.


 


“Permitted
Account” is defined in Section 6.6(a).


 


“Permitted
Indebtedness” is:


 


(a) Borrower’s
Indebtedness to Bank under this Agreement and the other Loan Documents;


 


(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;


 






    -25-


     


    

 


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


 


(g) extensions,
refinancings, modifications, amendments and restatements of any items of Permitted Indebtedness (a) through (f) 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 accepted in connection with Transfers permitted by Section 7.1;


 


(e) 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;


 


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


 


(g) 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 (g) shall not apply to Investments of Borrower in any Subsidiary.


 


“Permitted
Liens” are:


 


(a) Liens
existing on the Effective Date which are shown on the Perfection Certificate or arising under this Agreement and the other Loan
Documents;


 


(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 its Books, provided that no notice of any such Lien has
been filed or recorded under the Internal Revenue Code, as amended, and the Treasury Regulations adopted thereunder;


 


(c) purchase
money Liens or capital leases (i) on Equipment acquired or held by Borrower incurred for financing the acquisition of the Equipment
securing no more than Fifty Thousand Dollars ($50,000.00) 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
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);


 


(e) 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;


 






    -26-


     


    

 


(f) 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), if the leases, subleases, licenses and sublicenses do not prohibit
granting Bank a security interest therein;


 


(g) non-exclusive
licenses of Intellectual Property granted to third parties in the ordinary course of business; and


 


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


 


“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.


 


“Prepayment
Premium” is, for a prepayment made at any time prior to the Term Loan Maturity Date, an additional fee, payable to Bank,
with respect to the Term Loan Advance, in an amount equal to Two Hundred Forty Thousand Dollars ($240,000.00). Notwithstanding
the foregoing, provided no Event of Default has occurred and is continuing, the Prepayment Premium shall be waived by Bank if
Bank closes on the refinance and redocumentation of this Agreement (in its sole and absolute discretion) prior to the Term Loan
Maturity Date.


 


“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.


 


“Register”
is defined in Section 12.2.


 


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


 


“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.


 


“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 agreement 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, or (b) for which a default under or termination of could interfere with the Bank’s right to sell
any Collateral.


 


“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.


 






    -27-


     


    

 


“Stock
Pledge Agreement” is that certain Stock Pledge Agreement dated as of the Effective Date executed by Borrower in favor
of Bank.


 


“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.


 


“Taxes”
is defined in Section 2.5(a).


 


“Term
Loan Advance” is defined in Section 2.1.1(a).


 


“Term
Loan Maturity Date” is December 1, 2023.


 


“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.


 


“Transition
Period” is the period of time commencing on the Effective Date and continuing through the earlier to occur of (a) the
date that is forty-five (45) days after the Effective Date and (b) an Event of Default.


 


“Trigger
Event” is defined in Section 6.7.


 


[Signature
page follows.]


 






    -28-


     


    

 


IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as a sealed instrument under the laws of the
Commonwealth of Massachusetts as of the Effective Date.


 


BORROWER:


 


MOTUS
GI HOLDINGS, INC.


 





	By 	/s/ Timothy P. Moran	 
	Name: 	 Timothy P. Moran	 
	Title: 	Chief Executive Officer	 
	 	 
	BANK:	 
	 	 
	SILICON VALLEY BANK	 
	 	 
	By 	/s/ Scott McCarty	 
	Name: 	 Scott McCarty	 
	Title: 	Director	 


  






     


     


    

 


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 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
B


 


COMPLIANCE
CERTIFICATE


 





	TO:	SILICON VALLEY BANK	Date: ___________________
	FROM: 	 MOTUS GI HOLDINGS, INC.	 


 


The
undersigned authorized officer of MOTUS GI HOLDINGS, INC. (“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) 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 5.8 of the Agreement; and (5) no Liens have been levied or claims made against
Borrower or any of its Subsidiaries 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. 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	 	Monthly within 30 days	 	Yes No
	Compliance Certificate	 	Monthly within 30 days	 	Yes No
	Annual financial statement (CPA Audited)	 	FYE within 180 days	 	Yes No
	Board approved projections	 	Within 90 days after FYE	 	Yes No
	10-Q, 10-K and 8-K	 	Within 5 days after filing with SEC	 	Yes No



 





	 	 	Required	 	Actual	 	 	Complies
	 	 	 	 	 	 	 	 	 
	Liquidity Requirement (to be maintained at all times)	 	at least $10,000,000.00	 	$	_______	 	 	Yes No



 


Other
Matters


 


	Have
    there been any amendments of or other changes to the capitalization table of Borrower and to the Operating Documents of Borrower
    or any of its Subsidiaries? If yes, provide copies of any such amendments or changes with this Compliance Certificate.	Yes	No


 


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


 


------------------------------------------------------------------------------------------------------------------------------------------


--------------------------------------------------------------------------------------------------------------------------


 






     


     


    

 


	MOTUS
        GI HOLDINGS, INC.

         

        By:     
        __________________________________

        Name:
__________________________________

        Title:  
__________________________________

         

         
	BANK
        USE ONLY

         

        Received
        by: _____________________

        authorized
        signer

        Date:
           _________________________

         

        Verified:
        ________________________

        authorized
        signer

        Date:   
        _________________________

         

        Compliance
        Status:        Yes     No






 






     


     


    

 


Schedule
1 to Compliance Certificate


 


Financial
Covenants of Borrower


 


In
the event of a conflict between this Schedule and the Loan Agreement, the terms of the Loan Agreement shall govern.


 


Dated:
____________________


 


		I.	Liquidity
(Section 6.7)



 


Required:               At
all times, Borrower shall maintain unrestricted and unencumbered cash in accounts with Bank in an amount equal to at least Ten
Million Dollars ($10,000,000.00).


 


Actual:


 


	A.
	 	Unrestricted and unencumbered cash in accounts with Bank	 	$	  	 



 


Is
Line A equal to or greater than or equal to $10,000,000.00?


 


_______ No,
not in compliance                                                             ______ Yes, in compliance


 






     


     


    

 


EXHIBIT
C – LOAN PAYMENT/ADVANCE REQUEST FORM


 


Deadline
for same day processing is 1:00 PM EASTERN Time


 





	Fax To: 	Date: _____________________


 




Loan
Payment:              MOTUS GI HOLDINGS, INC.


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 Term Loan 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;
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 1:00 PM, Eastern
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
#: _____________________________________