CREDIT AND SECURITY AGREEMENT


 


dated as of April 23, 2012


 


by and among


 


BACTERIN INTERNATIONAL HOLDINGS, INC.,
and


 


BACTERIN INTERNATIONAL, INC.,


 


each individually, as a Borrower and
collectively, as the Borrowers,


 


and


 


MIDCAP FINANCIAL, LLC,


 


as Administrative Agent and as a Lender,


 


and


 


SILICON VALLEY BANK,


 


as a Lender,


 


and


 


THE ADDITIONAL LENDERS


 


FROM TIME TO TIME PARTY HERETO


 


 


 





 


 


 








 






 



    	 



    	 



    



 




CREDIT AND
SECURITY AGREEMENT


 


THIS CREDIT AND
SECURITY AGREEMENT (as the same may be amended, supplemented, restated or otherwise modified from time to time, the “Agreement”)
is dated as of April 23, 2012, by and among BACTERIN INTERNATIONAL HOLDINGS, INC., a Delaware corporation, and BACTERIN
INTERNATIONAL, INC., a Nevada corporation, and any additional borrower that may hereafter be added to this Agreement (each
individually as a “Borrower”, and collectively as “Borrowers”), MIDCAP FINANCIAL, LLC,
a Delaware limited liability company, individually as a Lender, and as Agent, and the financial institutions or other entities
from time to time parties hereto, each as a Lender.


 


RECITALS


 


Borrowers have requested
that Lenders make available to Borrowers the financing facilities as described herein. Lenders are willing to extend such credit
to Borrowers under the terms and conditions herein set forth.


 


AGREEMENT


 


NOW, THEREFORE,
in consideration of the premises and the agreements, provisions and covenants herein contained, Borrowers, Lenders and Agent agree
as follows:


 


Article 1
- DEFINITIONS


 


Section 1.1            
Certain Defined Terms. The following terms have the following meanings:


 


“Acceleration
Event” means the occurrence of an Event of Default (a) in respect of which Agent has declared all or any portion
of the Obligations to be immediately due and payable pursuant to Section 10.2, (b) pursuant to Section 10.1(a),
and in respect of which Agent has suspended or terminated the Revolving Loan Commitment pursuant to Section 10.2, and/or (c) pursuant
to either Section 10.1(e) and/or Section 10.1(f).


 


“Account Debtor”
means “account debtor”, as defined in Article 9 of the UCC, and any other obligor in respect of an Account.


 


“Accounts”
means, collectively, (a) any right to payment of a monetary obligation, whether or not earned by performance, (b) without
duplication, any “account” (as defined in the UCC), any accounts receivable (whether in the form of payments for services
rendered or goods sold, rents, license fees or otherwise), any “health-care-insurance receivables” (as defined in the
UCC), any “payment intangibles” (as defined in the UCC) and all other rights to payment and/or reimbursement of every
kind and description, whether or not earned by performance, (c) all accounts, “general intangibles” (as defined
in the UCC), Intellectual Property, rights, remedies, Guarantees, “supporting obligations” (as defined in the UCC),
“letter-of-credit rights” (as defined in the UCC) and security interests in respect of the foregoing, all rights of
enforcement and collection, all books and records evidencing or related to the foregoing, and all rights under the Financing Documents
in respect of the foregoing, (d) all information and data compiled or derived by any Borrower or to which any Borrower is
entitled in respect of or related to the foregoing, and (e) all proceeds of any of the foregoing.


 


“Agent”
means MCF, in its capacity as administrative agent for itself and for Lenders hereunder, as such capacity is established in, and
subject to the provisions of, Article 11, and the successors of MCF in such capacity.


 






    	 



    	 



    
 


“Affiliate”
means, with respect to any Person, (a) any Person that directly or indirectly controls such Person, (b) any Person which
is controlled by or is under common control with such controlling Person, and (c) each of such Person’s (other than,
with respect to any Lender, any Lender’s) officers or directors (or Persons functioning in substantially similar roles) and
the spouses, parents, descendants and siblings of such officers, directors or other Persons. As used in this definition, the term
“control” of a Person means the possession, directly or indirectly, of the power to vote five percent (5%) or more
of any class of voting securities of such Person or to direct or cause the direction of the management or policies of a Person,
whether through the ownership of voting securities, by contract or otherwise.


 


“Affiliated
Financing Documents” means any credit, loan, letter of credit or related documents which are, by their terms and by the
terms of this Agreement, cross-defaulted with the Financing Documents, and for which a Credit Party hereunder is liable or contingently
liable for payment or as security for which a Credit Party hereunder has pledged, assigned or subjected any assets. The term “Affiliated
Financing Documents” shall include, without limitation, that certain Loan and Security Agreement dated as of July 28,
2011 by and among Borrowers, MidCap Funding III, LLC (an Affiliate of Agent), and Silicon Valley Bank, and the other “Loan
Documents”, as defined therein.


 


“Anti-Terrorism
Laws” means any Laws relating to terrorism or money laundering, including, without limitation, Executive Order No. 13224
(effective September 24, 2001), the USA PATRIOT Act, the Laws comprising or implementing the Bank Secrecy Act, and the Laws
administered by OFAC.


 


“Applicable
Margin” means four percent (4.0%).


 


“Asset Disposition”
means any sale, lease, license, transfer, assignment or other consensual disposition by Borrower of any asset.


 


“Bankruptcy
Code” means Title 11 of the United States Code entitled “Bankruptcy”, as the same may be amended, modified
or supplemented from time to time, and any successor statute thereto.


 


“Base LIBOR
Rate” means the rate per annum, determined by Agent in accordance with its customary procedures, and utilizing such electronic
or other quotation sources as it considers appropriate (rounded upwards, if necessary, to the next 1/100%), to be the rate at which
Dollar deposits (for delivery on the first day of such Interest Period or, if such day is not a Business Day on the preceding Business
Day) in the amount of $1,000,000 are offered to major banks in the London interbank market on or about 11:00 a.m. (Eastern
time) two (2) Business Days prior to the commencement of such Interest Period, for a term comparable to such Interest Period,
which determination shall be conclusive in the absence of manifest error.


 


“Base Rate”
means the rate of interest announced means a per annum rate of interest equal to the rate of interest announced, from time to time,
within Wells Fargo at its principal office in San Francisco as its “prime rate,” with the understanding that the “prime
rate” is one of Wells Fargo’s base rates (not necessarily the lowest of such rates) and serves as the basis upon which
effective rates of interest are calculated for those loans making reference thereto and is evidenced by the recording thereof after
its announcement in such internal publications as Wells Fargo may designate; provided, however, that Agent may, upon prior
written notice to Borrower, choose a reasonably comparable index or source to use as the basis for the Base Rate.


 


“Blocked Person”
means any Person: (a) listed in the annex to, or is otherwise subject to the provisions of, Executive Order No. 13224,
(b) owned or controlled by, or acting for or on behalf of, any Person that is listed in the annex to, or is otherwise subject
to the provisions of, Executive Order No. 13224, (c) with which any Lender is prohibited from dealing or otherwise engaging
in any transaction by any Anti-Terrorism Law, (d) that commits, threatens or conspires to commit or supports “terrorism”
as defined in Executive Order No. 13224, or (e) that is named a “specially designated national” or “blocked
person” on the most current list published by OFAC or other similar list or is named as a “listed person” or
“listed entity” on other lists made under any Anti-Terrorism Law.


 






    	2



    	 



    
 


“Borrower”
and “Borrowers” mean the entities described in the first paragraph of this Agreement and each of their successors
and permitted assigns.


 


“Borrower
Representative” means Bacterin International, Inc., in its capacity as Borrower Representative pursuant to the provisions
of Section 2.9.


 


“Borrowing
Base” means:


 


(a)               
the product of (i) eighty percent (80%) multiplied by (ii) the aggregate net amount at such time of the
Eligible Accounts; minus


 


(b)              
the amount of any reserves and/or adjustments provided for in this Agreement.


 


“Borrowing
Base Certificate” means a certificate, duly executed by a Responsible Officer of Borrower Representative, in form and
substance acceptable to Lenders.


 


“Business
Day” means any day except a Saturday, Sunday or other day on which either the New York Stock Exchange is closed, or on
which commercial banks in Washington, DC and New York City are authorized by law to close.


 


“CERCLA”
means the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C.A. § 9601 et seq.,
as the same may be amended from time to time.


 


“Change in
Control” means any event, transaction, or occurrence as a result of which (a) any “person” (as such term
is defined in Sections 3(a)(9) and 13(d)(3) of the Exchange Act), other than a trustee or other fiduciary holding securities under
an employee benefit plan of Borrower, is or becomes a beneficial owner (within the meaning Rule 13d-3 promulgated under the Exchange
Act), directly or indirectly, of securities of Borrower, representing twenty-five percent (25%) or more of the combined voting
power of Borrower’s then outstanding securities; or (b) during any period of twelve consecutive calendar months, individuals
who at the beginning of such period constituted the board of directors of Borrower (together with any new directors whose election
by the board of directors of Borrower was approved by a vote of not less than two-thirds of the directors then still in office
who either were directions at the beginning of such period or whose election or nomination for election was previously so approved)
cease for any reason other than death or disability to constitute a majority of the directors then in office.


 


“Closing Date”
means the date of this Agreement.


 


“Code”
means the Internal Revenue Code of 1986, as amended from time to time.


 


“Collateral”
means all property, now existing or hereafter acquired, mortgaged or pledged to, or purported to be subjected to a Lien in favor
of, Agent, for the benefit of Agent and Lenders, pursuant to this Agreement and the Security Documents, including, without limitation,
all of the property described in Schedule 9.1 hereto.


 


“Commitment
Annex” means Annex A to this Agreement.


 






    	3



    	 



    
 


“Commitment
Expiry Date” means January 1, 2015. 


 


“Compliance
Certificate” means a certificate, duly executed by a Responsible Officer of Borrower Representative, appropriately completed
and substantially in the form of Exhibit A hereto.


 


“Contingent
Obligation” means, with respect to any Person, any direct or indirect liability of such Person: (a) with respect
to any Debt of another Person (a “Third Party Obligation”) if the purpose or intent of such Person incurring
such liability, or the effect thereof, is to provide assurance to the obligee of such Third Party Obligation that such Third Party
Obligation will be paid or discharged, or that any agreement relating thereto will be complied with, or that any holder of such
Third Party Obligation will be protected, in whole or in part, against loss with respect thereto; (b) with respect to any
undrawn portion of any letter of credit issued for the account of such Person or as to which such Person is otherwise liable for
the reimbursement of any drawing; (c) all equity securities of such Person subject to repurchase or redemption other than
at the sole option of such Person; (d) to make take-or-pay or similar payments if required
regardless of nonperformance by any other party or parties to an agreement; (e) obligations arising under non-compete agreements;
or (f) for any obligations of another Person pursuant to any Guarantee or pursuant to any agreement to purchase, repurchase
or otherwise acquire any obligation or any property constituting security therefor, to provide funds for the payment or discharge
of such obligation or to preserve the solvency, financial condition or level of income of another Person. The amount of any Contingent
Obligation shall be equal to the amount of the obligation so Guaranteed or otherwise supported or, if not a fixed and determinable
amount, the maximum amount so Guaranteed or otherwise supported.


 


“Controlled
Group” means all members of any group of corporations and all members of a group of trades or businesses (whether or
not incorporated) under common control which, together with any Borrower, are treated as a single employer under Section 414(b),
(c), (m) or (o) of the Code or Section 4001(b) of ERISA.


 


“Credit Exposure”
means, at any time, any portion of the Revolving Loan Commitment that remains outstanding; provided,
however, that no Credit Exposure shall be deemed to exist solely due to the existence of contingent indemnification liability,
absent the assertion of a claim, or the known existence of a claim reasonably likely to be asserted, with respect thereto.


 


“Credit Party”
means any Guarantor under a Guarantee of the Obligations or any part thereof, Borrower and any other Person (other than Agent,
a Lender or a participant of a Lender), whether now existing or hereafter acquired or formed, that becomes obligated as a borrower,
guarantor, surety, indemnitor, pledgor, assignor or other obligor under any Financing Document. As of the Closing Date, Borrowers
are the only Credit Parties.


 


“DEA”
means the Drug Enforcement Administration of the United States of America, and any successor agency thereof.


 


“Debt”
of a Person means at any date, without duplication, (a) all obligations of such Person for borrowed money, (b) all obligations
of such Person evidenced by bonds, debentures, notes or other similar instruments, (c) all obligations of such Person to pay
the deferred purchase price of property or services, except trade accounts payable arising and paid on a timely basis and in the
Ordinary Course of Business, (d) all capital leases of such Person, (e) all non-contingent obligations of such Person
to reimburse any bank or other Person in respect of amounts paid under a letter of credit, banker’s acceptance or similar
instrument, (f) [reserved], (g) all obligations secured by a Lien on any asset of such Person, whether or not such obligation
is otherwise an obligation of such Person, (h) “earnouts”, purchase price adjustments, profit sharing arrangements,
deferred purchase money amounts and similar payment obligations or continuing obligations of any nature of such Person arising
out of purchase and sale contracts, (i) all Debt of others Guaranteed by such Person, (j) off-balance sheet liabilities
and/or Pension Plan or Multiemployer Plan liabilities of such Person, (k) [reserved] , and (l) obligations arising under
bonus, deferred compensation, incentive compensation or similar arrangements, other than those arising in the Ordinary Course of
Business.


 






    	4



    	 



    
 


“Default”
means any condition or event which with the giving of notice or lapse of time or both would, unless cured or waived, become an
Event of Default.


 


“Deposit Account”
means a “deposit account” (as defined in Article 9 of the UCC), an investment account, or other account in which
funds are held or invested for credit to or for the benefit of any Borrower.


 


“Deposit Account
Control Agreement” means an agreement, in form and substance satisfactory to Agent, among Agent, Borrower and each financial
institution in which such Borrower maintains a Deposit Account.


 


“Distribution”
means as to any Person (a) any dividend or other distribution (whether in cash, securities or other property) on any equity
interest in such Person (except those payable solely in its equity interests of the same class), (b) any payment by such Person
on account of (i) the purchase, redemption, retirement, defeasance, surrender, cancellation, termination or acquisition of
any equity interests in such Person or any claim respecting the purchase or sale of any equity interest in such Person (except
in connection with any Warrants issued to any Lender in connection with the Affiliated Financing Documents), or (ii) any option,
warrant or other right to acquire any equity interests in such Person (excluding, however those certain Warrants issued to one
or more Lenders in connection with the Affiliated Financing Documents), (c) any management fees, salaries or other fees or
compensation to any Person holding an equity interest in a Borrower or a Subsidiary of a Borrower (other than (i) payments
of salaries to individuals, and (ii) advances and reimbursements to employees or directors, all in the Ordinary Course of
Business), an Affiliate of a Borrower, (d) any lease or rental payments to an Affiliate of a Borrower, or (e) repayments
of or debt service on loans or other indebtedness held by any Person holding an equity interest in a Borrower, an Affiliate of
a Borrower unless permitted under and made pursuant to a Subordination Agreement applicable to such loans or other indebtedness.


 


“Dollars”
or “$” means the lawful currency of the United States of America.


 


“Drug Application”
means a new drug application, an abbreviated drug application, or a product license application for any Product, as appropriate,
as those terms are defined in the FDCA.


 


“EBITDA”
has the meaning provided in the Compliance Certificate.


 


“Eligible
Account” means, subject to the criteria below, an account receivable of a Borrower, which was generated in the Ordinary
Course of Business, which was generated originally in the name of a Borrower and not acquired via assignment or otherwise, and
which Agent, in its good faith credit judgment and discretion, deems to be an Eligible Account. The net amount of an Eligible Account
at any time shall be (a) the face amount of such Eligible Account as originally billed minus all cash collections and
other proceeds of such Account received from or on behalf of the Account Debtor thereunder as of such date and any and all returns,
rebates, discounts (which may, at Agent’s option, be calculated on shortest terms), credits, allowances or excise taxes of
any nature at any time issued, owing, claimed by Account Debtors, granted, outstanding or payable in connection with such Accounts
at such time, and (b) adjusted by applying percentages (known as “liquidity factors”) by payor and/or payor
class based upon the applicable Borrower’s actual recent collection history for each such payor and/or payor class in a manner
consistent with Agent’s underwriting practices and procedures. Such liquidity factors may be adjusted by Agent from time
to time as warranted by Agent’s underwriting practices and procedures and using Agent’s good faith credit judgment.
Without limiting the generality of the foregoing, no Account shall be an Eligible Account if:


 






    	5



    	 



    
 


(a)               
the Account remains unpaid more than one hundred and one hundred ninety (90) days past the claim or invoice date (but in
no event more than one hundred twenty (120) days after the applicable goods or services have been rendered or delivered);


 


(b)              
the Account is subject to any defense, set-off, recoupment, counterclaim, deduction, discount, credit, chargeback, freight
claim, allowance, or adjustment of any kind (but only to the extent of such defense, set-off, recoupment, counterclaim, deduction,
discount, credit, chargeback, freight claim, allowance, or adjustment), or the applicable Borrower is not able to bring suit or
otherwise enforce its remedies against the Account Debtor through judicial process;


 


(c)               
if the Account arises from the sale of goods, any part of any goods the sale of which has given rise to the Account has
been returned, rejected, lost, or damaged (but only to the extent that such goods have been so returned, rejected, lost or damaged);


 


(d)              
if the Account arises from the sale of goods, the sale was not an absolute, bona fide sale, or the sale was made on consignment
or on approval or on a sale-or-return or bill-and-hold or progress billing basis, or the sale was made subject to any other repurchase
or return agreement, or the goods have not been shipped to the Account Debtor or its designee or the sale was not made in compliance
with applicable Laws;


 


(e)               
if the Account arises from the performance of services, the services have not actually been performed or the services were
undertaken in violation of any law or the Account represents a progress billing for which services have not been fully and completely
rendered;


 


(f)               
the Account is subject to a Lien other than a Permitted Lien, or Agent does not have a Lien on such Account;


 


(g)               
the Account is evidenced by Chattel Paper or an Instrument of any kind, or has been reduced to judgment, unless such Chattel
Paper or Instrument has been delivered to Agent;


 


(h)              
the Account Debtor is an Affiliate or Subsidiary of a Credit Party, or if the Account Debtor holds any Debt of a Credit
Party;


 


(i)                
more than fifty percent (50%) of the aggregate balance of all Accounts owing from the Account Debtor obligated on the Account
are ineligible under subclause (a) above (in which case all Accounts from such Account Debtor shall be ineligible);


 


(j)                
without limiting the provisions of clause (i) above, fifty percent (50%) or more of the aggregate unpaid Accounts from
the Account Debtor obligated on the Account are not deemed Eligible Accounts under this Agreement for any reason;


 


(k)              
the total unpaid Accounts of the Account Debtor obligated on the Account exceed twenty percent (20%) of the net amount of
all Eligible Accounts owing from all Account Debtors (but only the amount of the Accounts of such Account Debtor exceeding such
twenty percent (20%) limitation shall be considered ineligible);


 






    	6



    	 



    
 


(l)                
any covenant, representation or warranty contained in the Financing Documents with respect to such Account has been breached
in any respect;


 


(m)            
the Account is unbilled or has not been invoiced to the Account Debtor in accordance with the procedures and requirements
of the applicable Account Debtor; 


 


(n)              
the Account is an obligation of an Account Debtor that is the federal, state or local government or any political subdivision
thereof, unless Agent has agreed to the contrary in writing and Agent has received from the Account Debtor the acknowledgement
of Agent’s notice of assignment of such obligation pursuant to this Agreement;


 


(o)              
the Account is an obligation of an Account Debtor that has suspended business, made a general assignment for the benefit
of creditors, is unable to pay its debts as they become due or as to which a petition has been filed (voluntary or involuntary)
under any law relating to bankruptcy, insolvency, reorganization or relief of debtors, or the Account is an Account as to which
any facts, events or occurrences exist which could reasonably be expected to impair the validity, enforceability or collectability
of such Account or reduce the amount payable or delay payment thereunder;


 


(p)              
the Account Debtor has its principal place of business or executive office outside the United States;


 


(q)              
the Account is payable in a currency other than United States dollars;


 


(r)                
the Account Debtor is an individual;


 


(s)               
the Borrower owning such Account has not signed and delivered to Agent notices, in the form requested by Agent, directing
the Account Debtors to make payment to the applicable Lockbox Account;


 


(t)                
the Account includes late charges or finance charges (but only such portion of the Account shall be ineligible);


 


(u)              
the Account arises out of the sale of any Inventory upon which any other Person holds, claims or asserts a Lien; or


 


(v)              
the Account or Account Debtor fails to meet such other specifications and requirements which may from time to time be established
by Agent in its good faith credit judgment and discretion.


 


“Environmental
Laws” means any present and future federal, state and local laws, statutes, ordinances, rules, regulations, standards,
policies and other governmental directives or requirements, as well as common law, pertaining to the environment, natural resources,
pollution, health (including any environmental clean-up statutes and all regulations adopted by any local, state, federal or other
Governmental Authority, and any statute, ordinance, code, order, decree, law rule or regulation all of which pertain to or impose
liability or standards of conduct concerning medical waste or medical products, equipment or supplies), safety or clean-up that
apply to any Borrower and relate to Hazardous Materials, including, without limitation, the Comprehensive Environmental Response,
Compensation and Liability Act of 1980 (42 U.S.C. § 9601 et seq.), the Resource Conservation and Recovery Act of 1976
(42 U.S.C. § 6901 et seq.), the Federal Water Pollution Control Act (33 U.S.C. § 1251 et seq.), the Hazardous
Materials Transportation Act (49 U.S.C. § 5101 et seq.), the Clean Air Act (42 U.S.C. § 7401 et seq.),
the Federal Insecticide, Fungicide and Rodenticide Act (7 U.S.C. § 136 et seq.), the Emergency Planning and Community
Right-to-Know Act (42 U.S.C. § 11001 et seq.), the Occupational Safety and Health Act (29 U.S.C. § 651 et seq.),
the Residential Lead-Based Paint Hazard Reduction Act (42 U.S.C. § 4851 et seq.), any analogous state or local laws,
any amendments thereto, and the regulations promulgated pursuant to said laws, together with all amendments from time to time to
any of the foregoing and judicial interpretations thereof.


 






    	7



    	 



    
 


“Environmental
Liens” means all Liens and other encumbrances imposed pursuant to any Environmental Law, whether due to any act or omission
of any Borrower or any other Person.


 


“ERISA”
means the Employee Retirement Income Security Act of 1974, as the same may be amended, modified or supplemented from time to time,
and any successor statute thereto, and any and all rules or regulations promulgated from time to time thereunder.


 


“ERISA Plan”
means any “employee benefit plan”, as such term is defined in Section 3(3) of ERISA (other than a Multiemployer
Plan), which any Borrower maintains, sponsors or contributes to, or, in the case of an employee benefit plan which is subject to
Section 412 of the Code or Title IV of ERISA, to which any Borrower or any member of the Controlled Group may have any
liability, including any liability by reason of having been a substantial employer within the meaning of Section 4063 of ERISA
at any time during the preceding five (5) years, or by reason of being deemed to be a contributing sponsor under Section 4069
of ERISA.


 


“Event of
Default” has the meaning set forth in Section 10.1.


 


“FDA”
means the Food and Drug Administration of the United States of America, or any successor entity thereto.


 


“FDCA”
means the Federal Food, Drug and Cosmetic Act, as amended, 21 U.S.C. Section 301 et seq., and all regulations promulgated thereunder.


 


“Financing
Documents” means this Agreement, any Notes, the Security Documents, the Term Loan Documents, any subordination or intercreditor
agreement pursuant to which any Debt and/or any Liens securing such Debt is subordinated to all or any portion of the Obligations
and all other documents, instruments and agreements related to the Obligations and heretofore executed, executed concurrently herewith
or executed at any time and from time to time hereafter, as any or all of the same may be amended, supplemented, restated or otherwise
modified from time to time.


 


“GAAP”
means generally accepted accounting principles set forth from time to time in the opinions and pronouncements of the Accounting
Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board (or agencies with similar functions of comparable stature and authority within the United States accounting
profession), which are applicable to the circumstances as of the date of determination.


 


“General Intangible”
means any “general intangible” as defined in Article 9 of the UCC, and any personal property, including things
in action, other than accounts, chattel paper, commercial tort claims, deposit accounts, documents, goods, instruments, investment
property, letter-of-credit rights, letters of credit, money, and oil, gas or other minerals before extraction, but including payment
intangibles and software.


 


“Governmental
Authority” means any nation or government, any state or other political subdivision thereof, and any agency, department
or Person exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government and
any corporation or other Person owned or controlled (through stock or capital ownership or otherwise) by any of the foregoing,
whether domestic or foreign.


 






    	8



    	 



    
 


“Guarantee”
by any Person means any obligation, contingent or otherwise, of such Person directly or indirectly guaranteeing any Debt or other
obligation of any other Person and, without limiting the generality of the foregoing, any obligation, direct or indirect, contingent
or otherwise, of such Person (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such Debt
or other obligation (whether arising by virtue of partnership arrangements, by agreement to keep-well, to purchase assets, goods,
securities or services, to take-or-pay, or to maintain financial statement conditions or otherwise), or (b) entered into for
the purpose of assuring in any other manner the obligee of such Debt or other obligation of the payment thereof or to protect such
obligee against loss in respect thereof (in whole or in part), provided, however, that the term Guarantee shall not
include endorsements for collection or deposit in the Ordinary Course of Business. The term “Guarantee” used
as a verb has a corresponding meaning. As of the Closing Date, there are no Guarantees.


 


“Guarantor”
means any Credit Party that has executed or delivered, or shall in the future execute or deliver, any Guarantee of any portion
of the Obligations. As of the Closing Date, there are no Guarantors.


 


“Hazardous
Materials” means petroleum and petroleum products and compounds containing them, including gasoline, diesel fuel and
oil; explosives, flammable materials; radioactive materials; polychlorinated biphenyls and compounds containing them; lead and
lead-based paint; asbestos or asbestos-containing materials; underground or above-ground storage tanks, whether empty or containing
any substance; any substance the presence of which on the Borrower’s operations is prohibited by any Environmental Laws;
toxic mold, any substance that requires special handling; and any other material or substance now or in the future defined as a
“hazardous substance,” “hazardous material,” “hazardous waste,” “toxic substance,”
“toxic pollutant,” “contaminant,” “pollutant” or other words of similar import within the meaning
of any Environmental Law, including: (a) any “hazardous substance” defined as such in (or for purposes of) CERCLA,
or any so-called “superfund” or “superlien” Law, including the judicial interpretation thereof; (b) any
“pollutant or contaminant” as defined in 42 U.S.C.A. § 9601(33); (c) any material now defined as “hazardous
waste” pursuant to 40 C.F.R. Part 260; (d) any petroleum or petroleum by-products, including crude oil or any fraction
thereof; (e) natural gas, natural gas liquids, liquefied natural gas, or synthetic gas usable for fuel; (f) any “hazardous
chemical” as defined pursuant to 29 C.F.R. Part 1910; (g) any toxic or harmful substances, wastes, materials, pollutants
or contaminants (including, without limitation, asbestos, polychlorinated biphenyls (“PCB’s”), flammable
explosives, radioactive materials, infectious substances, materials containing lead-based paint or raw materials which include
hazardous constituents); and (h) any other toxic substance or contaminant that is subject to any Environmental Laws or other
past or present requirement of any Governmental Authority.


 


“Hazardous
Materials Contamination” means contamination (whether now existing or hereafter occurring) of the improvements, buildings,
facilities, personalty, soil, groundwater, air or other elements on or of the relevant property by Hazardous Materials, or any
derivatives thereof, or on or of any other property as a result of Hazardous Materials, or any derivatives thereof, generated on,
emanating from or disposed of in connection with the relevant property.


 


“Indemnified
Taxes” has the meaning set forth in Section 2.8(a).


 


“Indemnitees”
has the meaning set forth in Section 12.14.


 


“Instrument”
means “instrument”, as defined in Article 9 of the UCC.


 






    	9



    	 



    
 


“Intellectual
Property” includes, without limitation, all copyright rights, copyright applications,
copyright registrations and like protections in each work of authorship and derivative work, whether published or unpublished,
any patents, patent applications and like protections, including improvements, divisions, continuations, renewals, reissues, extensions,
and continuations-in-part of the same, trademarks, trade names, service marks, mask works, rights of use of any name, domain names,
or any other similar rights, any applications therefor, whether registered or not, and the goodwill
of the business of Borrower connected with and symbolized thereby, know-how, operating manuals, trade secret rights, clinical and
non-clinical data, rights to unpatented inventions, and any claims for damage by way of any past, present, or future infringement
of any of the foregoing.


 


“Interest
Period” means any period commencing on the first day of a calendar month and ending on the last day of such calendar
month.


 


“Inventory”
means “inventory” as defined in Article 9 of the UCC.


 


“Investment”
means any investment in any Person, whether by means of acquiring (whether for cash, property, services, securities or otherwise),
making or holding Debt, securities, capital contributions, loans, time deposits, advances, Guarantees or otherwise. The amount
of any Investment shall be the original cost of such Investment plus the cost of all additions thereto, without any adjustments
for increases or decreases in value, or write-ups, write-downs or write-offs with respect thereto.


 


“Law”
and “Laws” means any and all federal, state, provincial, territorial, local and foreign statutes, laws, judicial
decisions, regulations, ordinances, rules, judgments, orders, decrees, codes, injunctions, permits, governmental agreements and
governmental restrictions, whether now or hereafter in effect, which are applicable to Borrower in any particular circumstance.


 


“Lender”
means each of (a) MCF, in its capacity as a Lender hereunder, (b) Silicon Valley Bank, (c) each other Person that
becomes a party hereto as Lender pursuant to Section 11.17, and (d) the respective successors of all of the foregoing,
and “Lenders” means all of the foregoing.


 


“LIBOR Rate”
means, for each Loan, a per annum rate of interest equal to the greater of (a) two and one half of one percent (2.50%), and
(b) the rate determined by Agent (rounded upwards, if necessary, to the next 1/100th%) by dividing (i) the Base
LIBOR Rate for the Interest Period, by (ii) 100% minus the Reserve Percentage. The LIBOR Rate shall be adjusted
on and as of the effective day of any change in the Reserve Percentage.


 


“Lien”
means, with respect to any asset, any mortgage, lien, pledge, charge, security interest or encumbrance of any kind, in respect
of such asset. For the purposes of this Agreement and the other Financing Documents, any Borrower or any Subsidiary shall be deemed
to own subject to a Lien any asset which it has acquired or holds subject to the interest of a vendor or lessor under any conditional
sale agreement, capital lease or other title retention agreement relating to such asset.


 


“Litigation”
means any action, suit or proceeding before any court, mediator, arbitrator or Governmental Authority.


 


“Loan Account”
has the meaning set forth in Section 2.6(b).


 


“Loan(s)”
means the Revolving Loans, or any combination of Revolving Loans, as the context may require.



 


“Lockbox”
has the meaning set forth in Section 2.11.


 






    	10



    	 



    
 


“Lockbox Account”
means an account or accounts maintained at the Lockbox Bank into which collections of Accounts are paid, which account or accounts
shall be, if requested by Agent, opened in the name of Agent (or a nominee of Agent).


 


“Lockbox Bank”
has the meaning set forth in Section 2.11.


 


“Material
Adverse Effect” means (a) a material impairment in the perfection or priority of Agent’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)
or prospects of Borrower; (c) a material impairment of the prospect of repayment of any portion of the Obligations; or (d) Agent
determines, based upon information available to it and in its reasonable judgment, that there is a reasonable likelihood that Borrower
shall fail to comply with one or more of the financial covenants in Article 6 during the next succeeding financial reporting period.


 


“Material
Contracts” has the meaning set forth in Section 3.17.


 


“Material
Intellectual Property” means all of Borrower’s Intellectual Property and license agreements that are material
to the condition (financial or other), business or operations of Borrower, as determined by Agent.


 


“Maximum Lawful
Rate” has the meaning set forth in Section 2.7.


 


“MCF”
means MidCap Financial, LLC, and its successors and assigns.


 


“Minimum Balance”
shall mean, at any time, an amount that equals the product of: (a) the average Borrowing Base (or, if less on any given
day, the Revolving Loan Commitment) during the immediately preceding month multiplied by (b) the Minimum Balance Percentage
for such month.


 


“Minimum Balance
Percentage” means fifty percent (50.0%).


 


“Multiemployer
Plan” means a multiemployer plan within the meaning of Section 4001(a)(3) of ERISA to which any Borrower or any
other member of the Controlled Group (or any Person who in the last five years was a member of the Controlled Group) is making
or accruing an obligation to make contributions or has within the preceding five plan years (as determined on the applicable date
of determination) made contributions.


 


“Notes”
has the meaning set forth in Section 2.3.


 


“Notice of
Borrowing” means a notice of a Responsible Officer of Borrower, appropriately completed and substantially in the form
of Exhibit B hereto.


 


“Obligations”
means all obligations, liabilities and indebtedness (monetary (including post-petition interest, whether or not allowed) or otherwise)
of each Credit Party under this Agreement or any other Financing Document, in each case howsoever created, arising or evidenced,
whether direct or indirect, absolute or contingent, now or hereafter existing, or due or to become due.


 


“OFAC”
means the U.S. Department of Treasury Office of Foreign Assets Control.


 


“OFAC Lists”
means, collectively, the Specially Designated Nationals and Blocked Persons List maintained by OFAC pursuant to Executive Order
No. 13224, 66 Fed. Reg. 49079 (Sept. 25, 2001) and/or any other list of terrorists or other restricted Persons maintained
pursuant to any of the rules and regulations of OFAC or pursuant to any other applicable Executive Orders.


 






    	11



    	 



    
 


“Operative
Documents” means the Financing Documents, Subordinated Debt Documents, and any documents effecting any purchase or sale
or other transaction that is closing contemporaneously with the closing of the financing under this Agreement.


 


“Ordinary
Course of Business” means, in respect of any transaction involving any Person, the ordinary course of business of such
Person, as conducted by such Person in accordance with past practices.


 


“Organizational
Documents” means, with respect to any Person other than a natural person, the documents by which such Person was organized
(such as a certificate of incorporation, certificate of limited partnership or articles of organization, and including, without
limitation, any certificates of designation for preferred stock or other forms of preferred equity) and which relate to the internal
governance of such Person (such as by-laws, a partnership agreement or an operating, limited liability company or members agreement).


 


“Payment Account”
means the account specified on the signature pages hereof into which all payments by or on behalf of each Borrower to Agent under
the Financing Documents shall be made, or such other account as Agent shall from time to time specify by notice to Borrower Representative.


 


“PBGC”
means the Pension Benefit Guaranty Corporation and any Person succeeding to any or all of its functions under ERISA.


 


“Pension Plan”
means any ERISA Plan that is subject to Section 412 of the Code or Title IV of ERISA.


 


“Permits”
means all governmental licenses, authorizations, provider numbers, supplier numbers, registrations, permits, drug or device authorizations
and approvals, certificates, franchises, qualifications, accreditations, consents and approvals of Borrower required under all
applicable Laws and required for Borrower in order to carry on its business as now conducted.


 


“Permitted
Acquisition” means any acquisition permitted under the Term Loan Agreement.


 


“Permitted
Asset Dispositions” means the following Asset Dispositions, provided, however, that at the time of such Asset
Disposition, no Default or Event of Default exists or would result from such Asset Disposition: (a) dispositions of Inventory
in the Ordinary Course of Business and not pursuant to any bulk sale, (b) dispositions of furniture, fixtures and equipment
in the Ordinary Course of Business that the applicable Borrower determines in good faith is no longer used or useful in the business
of such Borrower, and (c) other dispositions approved by Agent.


 


“Permitted
Contest” means, with respect to any tax obligation or other obligation allegedly or potentially owing from any Borrower
to any governmental tax authority or other third party, a contest maintained in good faith by appropriate proceedings promptly
instituted and diligently conducted and with respect to which such reserve or other appropriate provision, if any, as shall be
required in conformity with GAAP shall have been made on the books and records and financial statements of Borrower; provided,
however, that (a) compliance with the obligation that is the subject of such contest is effectively stayed during such
challenge; (b) Borrowers’ title to, and its right to use, the Collateral is not adversely affected thereby and Agent’s
Lien and priority on the Collateral are not adversely affected, altered or impaired thereby; (c) Borrowers have given prior
written notice to Agent of a Borrower’s intent to so contest the obligation; (d) the Collateral or any part thereof
or any interest therein shall not be in any danger of being sold, forfeited or lost by reason of such contest by Borrowers; (e) Borrowers
have given Agent notice of the commencement of such contest and upon request by Agent, from time to time, notice of the status
of such contest by Borrowers and/or confirmation of the continuing satisfaction of this definition; and (f) upon a final determination
of such contest, Borrowers shall promptly comply with the requirements thereof.


 






    	12



    	 



    
 


“Permitted
Contingent Obligations” means (a) Contingent Obligations arising in respect of the Debt under the Financing Documents;
(b) Contingent Obligations resulting from endorsements for collection or deposit in the Ordinary Course of Business; (c) Contingent
Obligations outstanding on the date of this Agreement and set forth on Schedule 5.1 (but not including any refinancings,
extensions, increases or amendments to the indebtedness underlying such Contingent Obligations other than extensions of the maturity
thereof without any other change in terms); (d) Contingent Obligations incurred in the Ordinary Course of Business with respect
to surety and appeal bonds, performance bonds and other similar obligations not to exceed $25,000 in the aggregate at any time
outstanding; (e) Contingent Obligations described in clauses (c) and (e) of the definition thereof; and (f) other Contingent
Obligations not permitted by clauses (a) through (e) above, not to exceed $25,000 in the aggregate at any time outstanding.


 


“Permitted
Indebtedness” means: (a) Borrower’s Debt to Agent and each Lender under this Agreement and the other Financing
Documents; (b) Debt incurred as a result of endorsing negotiable instruments received in the Ordinary Course of Business;
(c) purchase money Debt not to exceed $100,000 at any time (whether in the form of a loan or a lease) used solely to acquire
equipment used in the Ordinary Course of Business and secured only by such equipment; (d) Debt existing on the date of this
Agreement and described on Schedule 5.1 (but not including any refinancings, extensions, increases or amendments to
such Debt other than extensions of the maturity thereof without any other change in terms); (e) trade accounts payable and
other unsecured Debt arising and paid on a timely basis and in the Ordinary Course of Business; (f) Subordinated Debt; and (g)
without duplication, “Permitted Indebtedness” (as such term is defined in the Term Loan Agreement) permitted under
the Term Loan Agreement, as in effect on the Closing Date.


 


“Permitted
Investments” means: (a) Investments shown on Schedule 5.7 and existing on the Closing Date; (b) cash
equivalents and (c) without duplication, “Permitted Investments” (as such term is defined in the Term Loan Agreement)
permitted under the Term Loan Agreement, as in effect on the Closing Date.


 


“Permitted
Liens” means: (a) deposits or pledges of cash to secure obligations under workmen’s compensation, social security
or similar laws, or under unemployment insurance (but excluding Liens arising under ERISA) pertaining to a Borrower’s employees,
if any; (b) deposits or pledges of cash to secure bids, tenders, contracts (other than contracts for the payment of money
or the deferred purchase price of property or services), leases, statutory obligations, surety and appeal bonds and other obligations
of like nature arising in the Ordinary Course of Business; (c) carrier’s, warehousemen’s, mechanic’s, workmen’s,
materialmen’s or other like Liens on Collateral, other than any Collateral which is part of the Borrowing Base, arising in
the Ordinary Course of Business with respect to obligations which are not due, or which are being contested pursuant to a Permitted
Contest; (d) Liens on Collateral, other than Accounts, for taxes or other governmental charges not at the time delinquent
or thereafter payable without penalty or the subject of a Permitted Contest; (e) attachments, appeal bonds, judgments and
other similar Liens on Collateral other than Accounts, for sums not exceeding $100,000 in the aggregate arising in connection with
court proceedings; provided, however, that the execution or other enforcement of such Liens is effectively stayed
and the claims secured thereby are the subject of a Permitted Contest; (f) Liens and encumbrances in favor of Agent under
the Financing Documents; (g) Liens on Collateral, other than Collateral which is part of the Borrowing Base, existing on the
date hereof and set forth on Schedule 5.2; (h) any Lien on any equipment securing Debt permitted under subpart (c)
of the definition of Permitted Indebtedness, provided, however, that such Lien attaches concurrently with or within
twenty (20) days after the acquisition thereof; (i) Liens and encumbrances in favor of the holders of any Affiliated
Financing Documents; and (j) without duplication, “Permitted Liens” (as such term is defined in the Term Loan Agreement)
permitted under the Term Loan Agreement, as in effect on the Closing Date.


 






    	13



    	 



    
 


“Permitted
Modifications” means (a) such amendments or other modifications to a Borrower’s Organizational Documents as
are required under this Agreement or by applicable Law and fully disclosed to Agent within thirty (30) days after such amendments
or modifications have become effective, and (b) such amendments or modifications to a Borrower’s Organizational Documents
(other than those involving a change in the name of a Borrower or involving a reorganization of a Borrower under the laws of a
different jurisdiction) that would not adversely affect the rights and interests of the Agent or Lenders and fully disclosed to
Agent within thirty (30) days after such amendments or modifications have become effective.


 


“Person”
means any natural person, corporation, limited liability company, professional association, limited partnership, general partnership,
joint stock company, joint venture, association, company, trust, bank, trust company, land trust, business trust or other organization,
whether or not a legal entity, and any Governmental Authority.


 


“Products”
means any products manufactured, sold, developed, tested or marketed by any Borrower or any of its Subsidiaries, including without
limitation, those products set forth on Schedule 3.24 (as updated from time to time in accordance with Section 4.12
above); provided, however, that if Borrower shall fail to comply with the obligations under Section 4.12 to give
notice to Agent and update Schedule 3.24 prior to manufacturing, selling, developing, testing or marketing any new Product,
any such improperly undisclosed Product shall be deemed to be included in this definition; and provided, further, that products
manufactured by Borrower for unaffiliated third parties shall not be deemed “Products” hereunder.


 


“Pro Rata
Share” means (a) with respect to a Lender’s obligation to make Revolving Loans, such Lender’s right
to receive the fees described in Section 2.2, the Revolving Loan Commitment Percentage of such Lender, (b) with respect
to a Lender’s right to receive payments of principal and interest with respect to Revolving Loans, such Lender’s Revolving
Loan Exposure with respect thereto; and (c) for all other purposes (including, without limitation, the indemnification obligations
arising under Section 11.6) with respect to any Lender, the percentage obtained by dividing (i) the sum of the
Revolving Loan Commitment Amount of such Lender (or, in the event the Revolving Loan Commitment shall have been terminated, such
Lender’s then existing Revolving Loan Outstandings, by (ii) the sum of the Revolving Loan Commitment (or, in
the event the Revolving Loan Commitment shall have been terminated, the then existing Revolving Loan Outstandings) of all Lenders.


 


“Required
Lenders” means (a) for so long as all of the Persons that are Lenders on the Closing Date (each, an “Original
Lender”) have not assigned or transferred any of their interests in their respective Revolving Loan Commitment, Lenders
holding one hundred percent (100%) of the aggregate outstanding principal balance of the Revolving Loan Commitment, or (b) at any
time from and after any Original Lender has assigned or transferred any interest in its Revolving Loan Commitment, Lenders holding
sixty-six percent (66%) or more of the aggregate outstanding principal balance of the Revolving Loan Commitments, plus,
in respect of this clause (b), (i) each Original Lender that has not assigned or transferred any portion of its respective Revolving
Loan Commitment, and (ii) each assignee of an Original Lender, provided, however, that such assignee was assigned or transferred
and continues to hold 100% of the assigning Original Lender’s interest in the Revolving Loan Commitment (in each case in
respect of clauses (i) and (ii) of this clause (b), whether or not such Lender is included within the Lenders holding sixty-six
percent (66%) of the total Revolving Loan Commitments); provided, however, that notwithstanding the foregoing, for
purposes of Sections 10.1(e) and 10.1(f) hereof, the term “Required Lenders” means (y) for so long as all Original
Lenders retain 100% of their interests in their respective Revolving Loan Commitments, Lenders holding one hundred percent (100%)
of the aggregate outstanding principal balance of the total Revolving Loan Commitments, or (z) at any time from and after any Original
Lender has assigned or transferred any interest in its Revolving Loan Commitments, Lenders holding sixty-six percent (66%) or more
of the aggregate outstanding principal balance of the total Revolving Loan Commitments, plus, in respect of this clause (z), each
Original Lender that has not assigned or transferred any portion of its respective Revolving Loan Commitment (in each case in respect
of this clause (z), whether or not such Original Lender is included within the Lenders holding sixty-six percent (66%) of the Revolving
Loan Commitments). For purposes of this definition only, a Lender shall be deemed to include itself, and any Lender that is an
Affiliate or Approved Fund of such Lender.


 






    	14



    	 



    
 


“Required
Permit” means a Permit (a) issued or required under Laws applicable to the business of Borrower or any of its Subsidiaries
or necessary in the manufacturing, importing, exporting, possession, ownership, warehousing, marketing, promoting, sale, labeling,
furnishing, distribution or delivery of goods or services under Laws applicable to the business of Borrower or any of its Subsidiaries
or any Drug Application (including without limitation, at any point in time, all licenses, approvals and permits issued by the
FDA or any other applicable Governmental Authority necessary for the testing, manufacture, marketing or sale of any Product by
any applicable Borrower, as such activities are being conducted by such Borrower with respect to such Product at such time), and
(b) issued by any Person from which Borrower or any of their Subsidiaries have received an accreditation.


 


“Reserve Percentage”
means, on any day, for any Lender, the maximum percentage prescribed by the Board of Governors of the Federal Reserve System (or
any successor Governmental Authority) for determining the reserve requirements (including any basic, supplemental, marginal, or
emergency reserves) that are in effect on such date with respect to eurocurrency funding (currently referred to as “eurocurrency
liabilities”) of that Lender, but so long as such Lender is not required or directed under applicable regulations to maintain
such reserves, the Reserve Percentage shall be zero.


 


“Responsible
Officer” means any of the Chief Executive Officer, Chief Financial Officer, Managing Member, or any other officer of
the applicable Borrower acceptable to Agent.


 


“Revolving
Lender” means each Lender having a Revolving Loan Commitment Amount in excess of zero (or, in the event the Revolving
Loan Commitment shall have been terminated at any time, each Lender at such time having Revolving Loan Outstandings in excess of
zero).


 


“Revolving
Loan Availability” means, at any time, the Revolving Loan Limit minus the Revolving Loan Outstandings.


 


“Revolving
Loan Borrowing” means a borrowing of a Revolving Loan.


 


“Revolving
Loan Commitment” means, as of any date of determination, the aggregate Revolving Loan Commitment Amounts of all Lenders
as of such date.


 


“Revolving
Loan Commitment Amount” means, as to any Lender, the dollar amount set forth opposite such Lender’s name on the
Commitment Annex under the column “Revolving Loan Commitment Amount” (if such Lender’s name is not so set forth
thereon, then the dollar amount on the Commitment Annex for the Revolving Loan Commitment Amount for such Lender shall be deemed
to be zero), as such amount may be adjusted from time to time by any amounts assigned (with respect to such Lender’s portion
of Revolving Loans outstanding and its commitment to make Revolving Loans) pursuant to the terms of any and all effective assignment
agreements to which such Lender is a party.


 






    	15



    	 



    
 


“Revolving
Loan Commitment Percentage” means, as to any Lender, (a) on the Closing Date, the percentage set forth opposite
such Lender’s name on the Commitment Annex under the column “Revolving Loan Commitment Percentage” (if such Lender’s
name is not so set forth thereon, then, on the Closing Date, such percentage for such Lender shall be deemed to be zero), and (b) on
any date following the Closing Date, the percentage equal to the Revolving Loan Commitment Amount of such Lender on such date divided
by the Revolving Loan Commitment on such date.


 


“Revolving
Loan Exposure” means, with respect to any Lender on any date of determination, the percentage equal to the amount of
such Lender’s Revolving Loan Outstandings on such date divided by the aggregate Revolving Loan Outstandings of all
Lenders on such date.


 


“Revolving
Loan Limit” means, at any time, the lesser of (a) the Revolving Loan Commitment and (b) the Borrowing Base.


 


“Revolving
Loan Outstandings” means, at any time of calculation, (a) the then existing aggregate outstanding principal amount of
Revolving Loans, and (b) when used with reference to any single Lender, the then existing outstanding principal amount of
Revolving Loans advanced by such Lender.


 


“Revolving
Loans” has the meaning set forth in Section 2.1(b).


 


“SEC”
means the United States Securities and Exchange Commission.


 


“Securities
Account” means a “securities account” (as defined in Article 9 of the UCC), an investment account, or
other account in which investment property or securities are held or invested for credit to or for the benefit of any Borrower.


 


“Securities
Account Control Agreement” means an agreement, in form and substance satisfactory to Agent, among Agent, any applicable
Borrower and each securities intermediary in which such Borrower maintains a Securities Account pursuant to which Agent shall obtain
“control” (as defined in Article 9 of the UCC) over such Securities Account.


 


“Security
Document” means this Agreement and any other agreement, document or instrument executed concurrently herewith or at any
time hereafter pursuant to which one or more Credit Parties or any other Person either (a) Guarantees payment or performance
of all or any portion of the Obligations, and/or (b) provides, as security for all or any portion of the Obligations, a Lien
on any of its assets in favor of Agent for its own benefit and the benefit of the Lenders, as any or all of the same may be amended,
supplemented, restated or otherwise modified from time to time.


 


“Solvent”
means, with respect to any Person, that such Person (a) owns and will own assets the fair saleable value of which are (i) greater
than the total amount of its liabilities (including Contingent Obligations), and (ii) greater than the amount that will be
required to pay the probable liabilities of its then existing debts as they become absolute and matured considering all financing
alternatives and potential asset sales reasonably available to it; (b) has capital that is not unreasonably small in relation
to its business as presently conducted or after giving effect to any contemplated transaction; and (c) does not intend to
incur and does not believe that it will incur debts beyond its ability to pay such debts as they become due.


 






    	16



    	 



    
 


“Subordinated
Debt” means any Debt of Borrowers incurred pursuant to the terms of the Subordinated Debt Documents and with the prior
written consent of Agent, all of which documents must be in form and substance acceptable to Agent in its sole discretion.


 


“Subordinated
Debt Documents” means any documents evidencing and/or securing Debt governed by a Subordination Agreement, all of which
documents must be in form and substance acceptable to Agent in its sole discretion.


 


“Subordination
Agreement” means any agreement between Agent and another creditor of Borrowers, as the same may be amended, supplemented,
restated or otherwise modified from time to time in accordance with the terms thereof, pursuant to which the Debt owing from Borrower
and/or the Liens securing such Debt granted by Borrower to such creditor are subordinated in any way to the Obligations and the
Liens created under the Security Documents, the terms and provisions of such Subordination Agreements to have been agreed to by
and be acceptable to Agent in the exercise of its sole discretion.


 


“Subsidiary”
means, with respect to any Person, (a) any corporation of which an aggregate of more than fifty percent (50%) of the outstanding
capital stock having ordinary voting power to elect a majority of the board of directors of such corporation (irrespective of whether,
at the time, capital stock of any other class or classes of such corporation shall have or might have voting power by reason of
the happening of any contingency) is at the time, directly or indirectly, owned legally or beneficially by such Person or one or
more Subsidiaries of such Person, or with respect to which any such Person has the right to vote or designate the vote of more
than fifty percent (50%) of such capital stock whether by proxy, agreement, operation of law or otherwise, and (b) any partnership
or limited liability company in which such Person and/or one or more Subsidiaries of such Person shall have an interest (whether
in the form of voting or participation in profits or capital contribution) of more than fifty percent (50%) or of which any such
Person is a general partner or may exercise the powers of a general partner. Unless the context otherwise requires, each reference
to a Subsidiary shall be a reference to a Subsidiary of a Borrower.


 


“Taxes”
has the meaning set forth in Section 2.8.


 


“Termination
Date” means the earlier to occur of (a) the Commitment Expiry Date, (b) any date on which Agent accelerates
the maturity of the Loans pursuant to Section 10.2, or (c) the termination date stated in any notice of termination of this
Agreement provided by Borrowers in accordance with Section 2.12.


 


“Term Loan
Agreement” means that certain Loan and Security Agreement, dated as of July 28, 2011, among Agent, the Lenders and Borrower,
as amended by that certain First Loan Modification agreement, dated as of the date hereof, as the same may be further amended,
amended and restated, modified, and/or supplemented from time to time.


 


“Term Loan
Documents” means the Term Loan Agreement and all other “Loan Documents” (as such term is defined in the Term
Loan Agreement), in each case as the same may be further amended, amended and restated, modified, and/or supplemented from time
to time.


 


“UCC”
means the Uniform Commercial Code of the State of Maryland or of any other state the laws of which are required to be applied in
connection with the perfection of security interests in any Collateral.


 


“United States”
means the United States of America.


 






    	17



    	 



    
 


Section 1.2            
Accounting Terms and Determinations. Unless otherwise specified herein, all accounting terms used herein shall
be interpreted, all accounting determinations hereunder (including, without limitation, determinations made pursuant to the exhibits
hereto) shall be made, and all financial statements required to be delivered hereunder shall be prepared in accordance with GAAP
applied on a basis consistent with the most recent audited consolidated financial statements of Borrower delivered to Agent and
each of the Lenders on or prior to the Closing Date.


 


Section 1.3            
Other Definitional and Interpretive Provisions. References in this Agreement to “Articles”, “Sections”,
“Annexes”, “Exhibits” or “Schedules” shall be to Articles, Sections, Annexes, Exhibits or Schedules
of or to this Agreement unless otherwise specifically provided. Any term defined herein may be used in the singular or plural.
“Include”, “includes” and “including” shall be deemed to be followed by “without limitation”.
Unless otherwise specified herein, the settlement of all payments and fundings hereunder between or among the parties hereto shall
be made in lawful money of the United States and in immediately available funds. References to any agreement, instrument or document
shall include all schedules, exhibits, annexes and other attachments thereto. References to capitalized terms that are not defined
herein, but are defined in the UCC, shall have the meanings given them in the UCC.


 


Section 1.4            
Time is of the Essence. Time is of the essence in Borrower’s and each other Credit Party’s performance
under this Agreement and all other Financing Documents.


 


Article 2
- LOANS


 


Section 2.1            
Loans.


 


(a)               
[Reserved] 


 


(b)              
Revolving Loans.


 


(i)                
Revolving Loans and Borrowings. On the terms and subject to the conditions set forth herein, each Lender severally
agrees to make loans to Borrowers from time to time as set forth herein (each a “Revolving Loan”, and collectively,
“Revolving Loans”) equal to such Lender’s Revolving Loan Commitment Percentage of Revolving Loans requested
by Borrowers hereunder, provided, however, that after giving effect thereto, the Revolving Loan Outstandings shall
not exceed the Revolving Loan Limit. Borrowers shall deliver to Agent a Notice of Borrowing with respect to each proposed Revolving
Loan Borrowing, such Notice of Borrowing to be delivered before 1:00 p.m. (Eastern time) one (1) Business Day prior to the date
of such proposed borrowing. Each Borrower and each Revolving Lender hereby authorizes Agent to make Revolving Loans on behalf of
Revolving Lenders, at any time in its sole discretion, to pay principal owing in respect of the Loans and interest, fees, expenses
and other charges payable by Borrower from time to time arising under this Agreement or any other Financing Document. The Borrowing
Base shall be determined by Agent based on the most recent Borrowing Base Certificate delivered to Agent in accordance with this
Agreement and such other information as may be available to Agent. Without limiting any other rights and remedies of Agent hereunder
or under the other Financing Documents, the Revolving Loans shall be subject to Agent’s continuing right to, after notice
to Borrower, withhold from the Borrowing Base reasonable reserves, and to increase and decrease such reserves from time to time,
if and to the extent that, after consultation with Borrower, in Agent’s good faith credit judgment and reasonable discretion,
such reserves are necessary.


 






    	18



    	 



    
 


(ii)              
Mandatory Revolving Loan Repayments and Prepayments.


 


(A)             
The Revolving Loan Commitment shall terminate on the Termination Date. On such Termination Date, there shall become due,
and Borrowers shall pay, the entire outstanding principal amount of each Revolving Loan, together with accrued and unpaid Obligations
pertaining thereto.


 


(B)             
If at any time the Revolving Loan Outstandings exceed the Revolving Loan Limit, then, on the next succeeding Business Day,
Borrowers shall repay the Revolving Loans in an aggregate amount equal to such excess.


 


(C)             
Principal payable on account of Revolving Loans shall be payable by Borrowers to Agent (I) immediately upon the receipt
by any Borrower or Agent of any payments on or proceeds from any of the Accounts, to the extent of such payments or proceeds, as
further described in Section 2.11 below, and (II) in full on the Termination Date.


 


(iii)            
Optional Prepayments. Other than repayments made pursuant to Section 2.11 below, Borrowers may from time to time
prepay the Revolving Loans in whole or in part.


 


(iv)            
LIBOR Rate.


 


(A)              Except
as provided in subsection (C) below, Revolving Loans shall accrue interest at the LIBOR Rate plus the Applicable Margin.


 


(B)             
[Reserved].


 


(C)             
In the event that any change in market conditions or any law, regulation, treaty, or directive, or any change therein or
in the interpretation of application thereof, shall at any time after the date hereof, in the reasonable opinion of any Lender,
make it unlawful or impractical for such Lender to fund or maintain Loans bearing interest based upon the LIBOR Rate or to continue
such funding or maintaining, or to determine or charge interest rates at the LIBOR Rate, such Lender shall give notice of such
changed circumstances to Agent and Borrowers and Agent promptly shall transmit the notice to each other Lender and (I) in
the case of any outstanding Loans of such Lender bearing interest based upon the LIBOR Rate, the date specified in such Lender’s
notice shall be deemed to be the last day of the Interest Period of such Loans, and interest upon such Lender’s Loans thereafter
shall accrue interest at the Base Rate plus the Applicable Margin, and (II)  such Loans shall continue to accrue interest
at Base Rate plus the Applicable Margin until such Lender determines that it would no longer be unlawful or impractical
to maintain such Loans at the LIBOR Rate.


 


(D)             
Anything to the contrary contained herein notwithstanding, neither Agent nor any Lender is required actually to acquire
eurodollar deposits to fund or otherwise match fund any Obligation as to which interest accrues based on the LIBOR Rate.


 


Section 2.2            
Interest, Interest Calculations and Certain Fees.


 


(a)               
Interest. From and following the Closing Date, except as expressly set forth in this Agreement, Loans and the other
Obligations shall bear interest at the sum of the LIBOR Rate plus the Applicable Margin. Interest on the Loans shall be
paid in arrears on the first (1st) day of each month and on the maturity of such Loans, whether by acceleration or otherwise. Interest
on all other Obligations shall be payable upon demand. For purposes of calculating interest, all funds transferred to the Payment
Account for application to any Revolving Loans shall be subject to a five (5) Business Day clearance period and all interest accruing
on such funds during such clearance period shall accrue for the benefit of Agent, and not for the benefit of the Lenders.


 






    	19



    	 



    
 


(b)              
Origination Fee. Contemporaneous with Borrower’s execution of this Agreement, Borrowers shall pay Agent, for
the benefit of all Lenders committed to make Revolving Loans on the Closing Date, in accordance with their respective Pro Rata
Shares, a fee in an amount equal to (i) the Revolving Loan Commitment, multiplied by (ii) one percent (1.00%).
The origination fee shall be non-refundable once paid.


 


(c)               
Unused Line Fee. From and following the Closing Date on the first day of each month, and payable in arrears, Borrowers
shall pay Agent, for the benefit of all Lenders committed to make Revolving Loans, in accordance with their respective Pro Rata
Shares, a fee equal to (i) (A) the Revolving Loan Commitment minus (B) the average daily balance of the sum
of the Revolving Loan Outstandings during the preceding month, multiplied by (ii) one percent (1.00%) per annum. The unused
line fee shall be deemed fully earned when due and payable and, once paid, shall be non-refundable.


 


(d)              
Minimum Balance Fee. From and following the Closing Date on the first day of each month, and payable in arrears,
Borrowers shall pay Agent, for the benefit of all Lenders committed to make Revolving Loans, in accordance with their respective
Pro Rata Shares, a fee equal to the product of (i) the positive difference (if any), remaining after subtracting (A) the
average end-of-day principal balance of Revolving Loans outstanding during the immediately preceding month (without giving effect
to the clearance day calculations referenced above or in Section 2.2(a) from (B) the Minimum Balance, multiplied by (ii)
the highest interest rate applicable to the Revolving Loans during such month (or, during the existence of an Event of Default,
the default rate of interest set forth in Section 10.5(a)). The minimum balance fee shall be deemed fully earned when due and payable
and, once paid, shall be non-refundable.


 


(e)               
Collateral Management Fee. From and following the Closing Date on the first day of each month, and payable in arrears,
Borrowers shall pay Agent, for its own account and not for the benefit of any other Lender, a fee in an amount equal to the product
obtained by multiplying (i) the greater of (A) the average end-of-day principal balance of Revolving Loans outstanding during
the immediately preceding month and (B) the Minimum Balance, by (ii) one half of one percent (0.50%) per annum. For purposes
of calculating the average end-of-day principal balance of Revolving Loans, all funds paid into the Payment Account (or which were
required to be paid into the Payment Account hereunder) or otherwise received by Agent for the account of Borrowers shall be subject
to a five Business Day clearance period. The collateral management fee shall be deemed fully earned when due and payable and, once
paid, shall be non-refundable.


 


(f)               
Deferred Revolving Loan Origination Fee. If Lenders’ funding obligations in respect of the Revolving Loan Commitment
under this Agreement terminate for any reason (whether by voluntary termination by Borrowers, by reason of the occurrence of an
Event of Default or otherwise) after the first anniversary of the Closing Date but prior to the Commitment Expiry Date, Borrowers
shall pay to Agent, for the benefit of all Lenders committed to make Revolving Loans on the Closing Date, a fee as compensation
for the costs of such Lenders being prepared to make funds available to Borrowers under this Agreement, equal to an amount determined
by multiplying the Revolving Loan Commitment by the following applicable percentage amount: (i) five percent (5.00%)
during the first year following the Closing Date, (ii) three percent (3.00%)% during the second year following the Closing Date,
and (iii) one percent (1.00%)% thereafter. All fees payable pursuant to this paragraph shall be deemed fully earned and non-refundable
as of the Closing Date.


 






    	20



    	 



    
 


(g)               
Audit Fees. Borrowers shall pay to Agent, for its own account and not for the benefit of any other Lenders, all reasonable
fees and expenses in connection with audits and inspections of Borrowers’ books and records, audits, valuations or appraisals
of the Collateral, audits of Borrowers’ compliance with applicable Laws and such other matters as Agent shall deem appropriate,
which shall be due and payable on the first Business Day of the month following the date of issuance by Agent of a written request
for payment thereof to Borrowers.


 


(h)              
Wire Fees. Borrowers shall pay to Agent, for its own account and not for the account of any other Lenders, on written
demand, fees for incoming and outgoing wires made for the account of Borrowers, such fees to be based on Agent’s then current
wire fee schedule (available upon written request of the Borrowers).


 


(i)                
Late Charges. If payments of principal (other than a final installment of principal upon the Termination Date), interest
due on the Obligations, or any other amounts due hereunder or under the other Financing Documents are not timely made and remain
overdue for a period of five (5) days, Borrowers, without notice or demand by Agent, promptly shall pay to Agent, for its own account
and not for the benefit of any other Lenders, as additional compensation to Agent in administering the Obligations, an amount equal
to five percent (5.0%) of each delinquent payment.


 


(j)                
Computation of Interest and Related Fees. All interest and fees under each Financing Document shall be calculated
on the basis of a 360-day year for the actual number of days elapsed. The date of funding of a Loan shall be included in the calculation
of interest. The date of payment of a Loan shall be excluded from the calculation of interest. If a Loan is repaid on the same
day that it is made, one (1) day’s interest shall be charged.


 


Section 2.3            
Notes. The portion of the Loans made by each Lender shall be evidenced, if so requested by such Lender, by one
or more promissory notes executed by Borrowers on a joint and several basis (each, a “Note”) in an original
principal amount equal to such Lender’s Revolving Loan Commitment Amount.


 


Section 2.4            
[Reserved]


 


Section 2.5            
[Reserved]


 


Section 2.6            
General Provisions Regarding Payment; Loan Account.


 


(a)               
All payments to be made by each Borrower under any Financing Document, including payments of principal and interest made
hereunder and pursuant to any other Financing Document, and all fees, expenses, indemnities and reimbursements, shall be made without
set-off, recoupment or counterclaim. If any payment hereunder becomes due and payable on a day other than a Business Day, such
payment shall be extended to the next succeeding Business Day and, with respect to payments of principal, interest thereon shall
be payable at the then applicable rate during such extension (it being understood and agreed that, solely for purposes of calculating
financial covenants and computations contained herein and determining compliance therewith, if payment is made, in full, on any
such extended due date, such payment shall be deemed to have been paid on the original due date without giving effect to any extension
thereto). Any payments received in the Payment Account before 12:00 Noon (Eastern time) on any date shall be deemed received
by Agent on such date, and any payments received in the Payment Account at or after 12:00 Noon (Eastern time) on any date
shall be deemed received by Agent on the next succeeding Business Day.


 






    	21



    	 



    
 


(b)              
Agent shall maintain a loan account (the “Loan Account”) on its books to record Loans and other extensions
of credit made by the Lenders hereunder or under any other Financing Document, and all payments thereon made by each Borrower.
All entries in the Loan Account shall be made in accordance with Agent’s customary accounting practices as in effect from
time to time. The balance in the Loan Account, as recorded in Agent’s books and records at any time shall be conclusive and
binding evidence of the amounts due and owing to Agent by each Borrower absent manifest error; provided, however,
that any failure to so record or any error in so recording shall not limit or otherwise affect any Borrower’s duty to pay
all amounts owing hereunder or under any other Financing Document. Agent shall endeavor to provide Borrowers with a monthly statement
regarding the Loan Account (but neither Agent nor any Lender shall have any liability if Agent shall fail to provide any such statement).
Unless any Borrower notifies Agent of any objection to any such statement (specifically describing the basis for such objection)
within ninety (90) days after the date of receipt thereof, it shall be deemed final, binding and conclusive upon Borrowers in all
respects as to all matters reflected therein.


 


Section 2.7            
Maximum Interest. In no event shall the interest charged with respect to the Loans or any other Obligations of
any Borrower under any Financing Document exceed the maximum amount permitted under the laws of the State of Maryland or of any
other applicable jurisdiction. Notwithstanding anything to the contrary herein or elsewhere, if at any time the rate of interest
payable hereunder or under any Note or other Financing Document (the “Stated Rate”) would exceed the highest
rate of interest permitted under any applicable law to be charged (the “Maximum Lawful Rate”), then for so long
as the Maximum Lawful Rate would be so exceeded, the rate of interest payable shall be equal to the Maximum Lawful Rate; provided,
however, that if at any time thereafter the Stated Rate is less than the Maximum Lawful Rate, each Borrower shall, to the
extent permitted by law, continue to pay interest at the Maximum Lawful Rate until such time as the total interest received is
equal to the total interest which would have been received had the Stated Rate been (but for the operation of this provision) the
interest rate payable. Thereafter, the interest rate payable shall be the Stated Rate unless and until the Stated Rate again would
exceed the Maximum Lawful Rate, in which event this provision shall again apply. In no event shall the total interest received
by any Lender exceed the amount which it could lawfully have received had the interest been calculated for the full term hereof
at the Maximum Lawful Rate. If, notwithstanding the prior sentence, any Lender has received interest hereunder in excess of the
Maximum Lawful Rate, such excess amount shall be applied to the reduction of the principal balance of the Loans or to other amounts
(other than interest) payable hereunder, and if no such principal or other amounts are then outstanding, such excess or part thereof
remaining shall be paid to Borrowers. In computing interest payable with reference to the Maximum Lawful Rate applicable to any
Lender, such interest shall be calculated at a daily rate equal to the Maximum Lawful Rate divided by the number of days
in the year in which such calculation is made.


 


Section 2.8            
Taxes; Capital Adequacy.


 


(a)               
Any and all payments made by Borrower under this Agreement or any other Loan Document shall 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)
other than any Taxes imposed on or measured by any Lender’s overall net income and franchise Taxes imposed on it (in lieu
of net income Taxes), by a jurisdiction (or any political subdivision thereof) as a result of any Lender being organized or resident,
conducting business (other than a business deemed to arise from such Lender having executed, delivered or performed its obligations
or received a payment under, or enforced, or otherwise with respect to, this Agreement or any other Loan Document) or having its
principal office in such jurisdiction (“Indemnified Taxes”). If any Indemnified Taxes shall be required by Law
to be withheld or deducted from or in respect of any sum payable under this Agreement or any other Loan Document to any Lender,
(a) an additional amount shall be payable as may be necessary so that, after making all required withholdings or deductions (including
withholdings or deductions applicable to additional sums payable under this Section) such Lender receives an amount equal to the
sum it would have received had no such withholdings or deductions been made, (b) Borrower shall make such withholdings or deductions,
(c) Borrower shall pay the full amount withheld or deducted to the relevant taxing authority or other authority in accordance with
applicable Laws, and (d) Borrower shall deliver to such Lender evidence of such payment. Borrower’s obligation hereunder
shall survive the termination of this Agreement.


 






    	22



    	 



    
 





(b)              
Each Lender that (i) is organized under the laws of a jurisdiction other than the United States, and (ii)(A) is
a party hereto on the Closing Date or (B) purports to become an assignee of an interest as a Lender under this Agreement after
the Closing Date (unless such Lender was already a Lender hereunder immediately prior to such assignment) (each such Lender a “Foreign
Lender”) shall execute and deliver to each of Borrowers and Agent one or more (as Borrowers or Agent may reasonably request)
United States Internal Revenue Service Forms W-8ECI, W-8BEN, W-8IMY (as applicable) and other applicable forms, certificates or
documents prescribed by the United States Internal Revenue Service or reasonably requested by Agent certifying as to such Lender’s
entitlement to a complete exemption from withholding or deduction of Taxes. Borrowers shall not be required to pay additional amounts
to any Lender pursuant to this Section 2.8 with respect to United States withholding and income Taxes to the extent that the
obligation to pay such additional amounts would not have arisen but for the failure of such Lender to comply with this paragraph
other than as a result of a change in law.


 


(c)               
If any new Laws or regulation increases a Lender’s costs or reduces its income for any Revolving Loans, Borrower shall
pay the increase in cost or reduction in income or additional expense; provided, however, that Borrower shall not be liable
for any amount attributable to any period before one hundred eighty (180) days prior to the date such Lender notifies Borrower
of such increased costs. Each Lender agrees that it shall allocate any increased costs among its customers similarly affected in
good faith and in a manner consistent with such Lender’s customary practice.


 


(d)              
If any Lender requires compensation under Section 2.8(d), or requires any Borrower to pay any additional amount to
any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.8(a), then, upon the written
request of Borrower, such Lender shall use reasonable efforts to designate a different lending office for funding or booking its
Loans hereunder or to assign its rights and obligations hereunder (subject to the terms of this Agreement) to another of its offices,
branches or affiliates, if, in the judgment of such Lender, such designation or assignment (i) would eliminate or materially reduce
amounts payable pursuant to any such subsection, as the case may be, in the future, and (ii) would not subject such Lender to any
unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender (as determined in its sole discretion).
Borrowers hereby agree to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation
or assignment.


 


Section 2.9            
Appointment of Borrower Representative. Each Borrower hereby designates Borrower Representative as its representative
and agent on its behalf for the purposes of issuing Notices of Borrowing, Notices of LC Credit Events and Borrowing Base Certificates,
and giving instructions with respect to the disbursement of the proceeds of the Loans, requesting Letters of Credit, giving and
receiving all other notices and consents hereunder or under any of the other Financing Documents and taking all other actions (including
in respect of compliance with covenants) on behalf of any Borrower or Borrowers under the Financing Documents. Borrower Representative
hereby accepts such appointment. Notwithstanding anything to the contrary contained in this Agreement, no Borrower other than Borrower
Representative shall be entitled to take any of the foregoing actions. The proceeds of each Loan made hereunder shall be advanced
to or at the direction of Borrower Representative and if not used by Borrower Representative in its business (for the purposes
provided in this Agreement) shall be deemed to be immediately advanced by Borrower Representative to the appropriate other Borrower
hereunder as an intercompany loan, and Borrowers shall maintain accurate books and records with respect to all such intercompany
loans and all repayments thereof. Agent and each Lender may regard any notice or other communication pursuant to any Financing
Document from Borrower Representative as a notice or communication from all Borrowers, and may give any notice or communication
required or permitted to be given to any Borrower or all Borrowers hereunder to Borrower Representative on behalf of such Borrower
or all Borrowers. Each Borrower agrees that each notice, election, representation and warranty, covenant, agreement and undertaking
made on its behalf by Borrower Representative shall be deemed for all purposes to have been made by such Borrower and shall be
binding upon and enforceable against such Borrower to the same extent as if the same had been made directly by such Borrower.


 






    	23



    	 



    
 


Section 2.10        
Joint and Several Liability. Each Borrower hereunder shall be jointly and severally obligated to repay all Loans
made hereunder and all other Obligations, regardless of which Borrower actually receives the Loans, as if each Borrower hereunder
directly received all such Loans.  Each Borrower waives (a) any suretyship defenses available to it under the UCC or
any other applicable Law, and (b) any right to require the Lenders or Agent to: (i)
proceed against any Borrower or any other Person; (ii) proceed against or exhaust any security; or (iii) pursue any other
remedy.  Agent may exercise or not exercise any right or remedy they have against any Borrower or any security (including
the right to foreclose by judicial or non-judicial sale) without affecting any Borrower’s liability.  Notwithstanding
any other provision of this Agreement or other related document, each Borrower irrevocably waives all rights that it may have at
law or in equity (including, without limitation, any law subrogating Borrower to the rights of the Lenders and Agent under this
Agreement) to seek contribution, indemnification or any other form of reimbursement from any other Borrower, or any other Person
now or hereafter primarily or secondarily liable for any of the Obligations, for any payment made by Borrower with respect to the
Obligations in connection with this Agreement or otherwise and all rights that it might have to benefit from, or to participate
in, any security for the Obligations as a result of any payment made by Borrower with respect to the Obligations in connection
with this Agreement or otherwise.  Any agreement providing for indemnification, reimbursement or any other arrangement prohibited
under this Section 2.10 shall be null and void.  If any payment is made to a Borrower in contravention of this Section 2.10,
such Borrower shall hold such payment in trust for the Lenders and Agent and such payment shall be promptly delivered to Agent
for application to the Obligations, whether matured or unmatured.


 


Section 2.11        
Collections and Lockbox Account.


 


(a)               
Borrowers shall maintain a lockbox (the “Lockbox”) with a United States depository institution designated
from time to time by Agent (the “Lockbox Bank”), subject to the provisions of this Agreement, and shall execute
with the Lockbox Bank a Deposit Account Control Agreement and such other agreements related to such Lockbox as Agent may require.
Borrowers shall ensure that all collections of Accounts are paid directly from Account Debtors (i) into the Lockbox for deposit
into the Lockbox Account and/or (ii) directly into the Lockbox Account. To effect the foregoing, (A) within thirty (30) days following
the Closing Date, Borrowers shall send to each of its Account Debtors notices instructing each such Account Debtor to remit all
amounts owed to Borrowers to the Lockbox and/or to the Lockbox Account, and (B) Borrowers shall thereafter diligently pursue adherence
to such payment instructions with its Account Debtors to ensure that, within one hundred eighty (180) days following the Closing
Date, such Account Debtors are making payments of Accounts directly to the Lockbox and/or to the Lockbox Account - it being the
understanding of the parties that the transition to requiring Account Debtors to make payment to the Lockbox and/or Lockbox Account
may take up to one hundred eighty (180) days, and during such period, so long as Borrower remits any payments received by it into
the Lockbox Account pursuant to Section 2.11(e) below, Borrower shall be deemed to be in compliance with this Section 2.11(a).


 






    	24



    	 



    
 


(b)              
All funds deposited into a Lockbox Account shall be transferred into the Payment Account by the close of each Business Day.


 


(c)               
Notwithstanding anything in any lockbox agreement or Deposit Account Control Agreement to the contrary, Borrowers agree
that they shall be liable for any fees and charges in effect from time to time and charged by the Lockbox Bank in connection with
the Lockbox, the Lockbox Account, and that Agent shall have no liability therefor. Borrowers hereby indemnify and agree to hold
Agent harmless from any and all liabilities, claims, losses and demands whatsoever, including reasonable attorneys’ fees
and expenses, arising from or relating to actions of Agent or the Lockbox Bank pursuant to this Section or any lockbox agreement
or Deposit Account Control Agreement or similar agreement, except to the extent of such losses arising solely from Agent’s
gross negligence or willful misconduct.


 


(d)              
Agent shall apply, on a daily basis, all funds transferred into the Payment Account pursuant to this Section to reduce
the outstanding Revolving Loans in such order of application as Agent shall elect. If as the result of collections of Accounts
pursuant to the terms and conditions of this Section, a credit balance exists with respect to the Loan Account, such credit
balance shall not accrue interest in favor of Borrowers, but Agent shall transfer such funds into an account designated by Borrower
for so long as no Event of Default exists.


 


(e)               
To the extent that any collections of Accounts or proceeds of other Collateral are not sent directly to the Lockbox or Lockbox
Account but are received by any Borrower, such collections shall be held in trust for the benefit of Agent pursuant to an express
trust created hereby and immediately remitted, in the form received, to applicable Lockbox or Lockbox Account. No such funds received
by any Borrower shall be intentionally commingled with other funds of the Borrowers. If any funds received by any Borrower are
intentionally commingled with other funds of the Borrowers for more than two (2) Business Days, or are required to be deposited
to a Lockbox or Lockbox Account and are not so deposited within two (2) Business Days, then Borrower shall pay to Agent, for its
own account and not for the account of any other Lenders, a compliance fee equal to $500 for each day after such two (2) Business
Day cure period that any such conditions exist.


 


(f)               
Borrowers acknowledge and agree that compliance with the terms of this Section is essential, and that Agent and Lenders
will suffer immediate and irreparable injury and have no adequate remedy at law, if any Borrower, through acts or omissions, causes
or permits Account Debtors to send payments other than to the Lockbox or Lockbox Accounts or if any Borrower fails to promptly
deposit collections of Accounts or proceeds of other Collateral in the Lockbox Account as herein required. Accordingly, in addition
to all other rights and remedies of Agent and Lenders hereunder, Agent shall have the right to seek specific performance of the
Borrowers’ obligations under this Section, and any other equitable relief as Agent may deem necessary or appropriate, and
Borrowers waive any requirement for the posting of a bond in connection with such equitable relief.


 


(g)               
Borrowers shall not, and Borrowers shall not suffer or permit any Credit Party to, (i) withdraw any amounts from any
Lockbox Account, (ii) change the procedures or sweep instructions under the agreements governing any Lockbox Accounts, or
(iii) send to or deposit in any Lockbox Account any funds other than payments made with respect to any proceeds of Accounts
or other Collateral. Borrowers shall, and shall cause each Credit Party to, cooperate with Agent in the identification and reconciliation
on a daily basis of all amounts received in or required to be deposited into the Lockbox Accounts. If more than five percent (5%)
of the collections of Accounts received by Borrowers during any given fifteen (15) day period is not identified or reconciled to
the reasonable satisfaction of Agent within ten (10) Business Days of receipt, Agent shall not be obligated to make further advances
under this Agreement until such amount is identified or is reconciled to the reasonable satisfaction of Agent, as the case may
be. In addition, if any such amount cannot be identified or reconciled to the reasonable satisfaction of Agent, Agent may utilize
its own staff or, if it deems necessary, engage an outside auditor, in either case at Borrowers’ expense (which in the case
of Agent’s own staff shall be in accordance with Agent’s then prevailing customary charges (plus expenses)),
to make such examination and report as may be necessary to identify and reconcile such amount.


 






    	25



    	 



    
 


(h)              
If any Borrower breaches its obligation to direct payments of the proceeds of the Collateral to the Lockbox Account, Agent,
as the irrevocably made, constituted and appointed true and lawful attorney for Borrowers, may, by the signature or other act of
any of Agent’s officers (without requiring any of them to do so), direct any Account Debtor to pay proceeds of the Collateral
to Borrowers by directing payment to the Lockbox Account.


 


Section 2.12        
Termination; Restriction on Termination.


 


(a)               
Termination by Lenders. In addition to the rights set forth in Section 10.2, Agent may, and at the direction of Required
Lenders shall, terminate this Agreement without notice upon or after the occurrence and during the continuance of an Event of Default.


 


(b)              
Termination by Borrowers. Upon at least thirty (30) days’ prior written notice to Agent and Lenders, Borrowers
may, at its option, terminate this Agreement; provided, however, that no such termination shall be effective until Borrowers
have complied with Section 2.2(f); and provided, further, that Agent and Lenders shall have no obligation to release
any of the Collateral securing the Obligations under this Agreement while any portion of the Debt under the Affiliated Financing
Documents remains outstanding. Any notice of termination given by Borrowers shall be irrevocable unless all Lenders otherwise agree
in writing and no Lender shall have any obligation to make any Loans on or after the termination date stated in such notice. Borrowers
may elect to terminate this Agreement in its entirety only. No section of this Agreement or type of Loan available hereunder may
be terminated singly.


 


(c)               
Effectiveness of Termination. All of the Obligations shall be immediately due and payable upon the Termination Date.
All undertakings, agreements, covenants, warranties and representations of Borrowers contained in the Financing Documents shall
survive any such termination and Agent shall retain its Liens in the Collateral and Agent and each Lender shall retain all of its
rights and remedies under the Financing Documents notwithstanding such termination until all Obligations have been discharged or
paid, in full, in immediately available funds, including, without limitation, all Obligations under Section 2.2(f)
resulting from such termination. Notwithstanding the foregoing or the payment in full of the Obligations, Agent shall not
be required to terminate its Liens in the Collateral unless, with respect to any loss or damage Agent may incur as a result of
dishonored checks or other items of payment received by Agent from Borrower or any Account Debtor and applied to the Obligations,
Agent shall, at its option, (i) have received a written agreement satisfactory to Agent, executed by Borrowers and by any Person
whose loans or other advances to Borrowers are used in whole or in part to satisfy the Obligations, indemnifying Agent and each
Lender from any such loss or damage or (ii) have retained cash Collateral or other Collateral for such period of time as Agent,
in its reasonable discretion, may deem necessary to protect Agent and each Lender from any such loss or damage.


 






    	26



    	 



    
 


Article 3
- REPRESENTATIONS AND WARRANTIES


 


To induce Agent and
Lenders to enter into this Agreement and to make the Loans and other credit accommodations contemplated hereby, each Borrower hereby
represents and warrants to Agent and each Lender that:


 


Section 3.1            
Existence and Power. Borrower is an entity as specified on Schedule 3.1, is duly organized, validly
existing and in good standing under the laws of the jurisdiction specified on Schedule 3.1 and no other jurisdiction,
has the same legal name as it appears in Borrower’s Organizational Documents and an organizational identification number
(if any), in each case as specified on Schedule 3.1, and has all powers and all Permits necessary or desirable in the
operation of its business as presently conducted or as proposed to be conducted, except where the failure to have such Permits
could not reasonably be expected to have a Material Adverse Effect. Borrower is qualified to do business as a foreign entity in
each jurisdiction in which it is required to be so qualified, which jurisdictions as of the Closing Date are specified on Schedule 3.1,
except where the failure to be so qualified could not reasonably be expected to have a Material Adverse Effect. Except as set forth
on Schedule 3.1, Borrower (a) has not had, over the five (5) year period preceding the Closing Date, any name
other than its current name, or (b) was not incorporated or organized under the laws of any jurisdiction other than its current
jurisdiction of incorporation or organization.


 


Section 3.2            
Organization and Governmental Authorization; No Contravention. The execution, delivery and performance by each
Borrower of the Operative Documents to which it is a party are within its powers, have been duly authorized by all necessary action
pursuant to its Organizational Documents, require no further action by or in respect of, or filing with, any Governmental Authority
and do not violate, conflict with or cause a breach or a default under (a) any Law applicable to any Borrower or any of the
Organizational Documents of any Borrower, or (b) agreement or instrument binding upon it, except for such violations, conflicts,
breaches or defaults as could not, with respect to this clause (b), reasonably be expected to have a Material Adverse Effect. In
connection with the development, testing, manufacture, marketing or sale of each and any Product by a Borrower, such Borrower shall
comply fully and completely in all respects with all Required Permits at all times issued by any Governmental Authority the noncompliance
with which could have a Material Adverse Effect, specifically including the FDA, with respect to such development, testing, manufacture,
marketing or sales of such Product by Borrower as such activities are at any such time being conducted by Borrower.


 


Section 3.3            
Binding Effect. Each of the Operative Documents to which any Credit Party is a party constitutes a valid and
binding agreement or instrument of such Credit Party, enforceable against such Credit Party in accordance with its respective terms,
except as the enforceability thereof may be limited by bankruptcy, insolvency or other similar laws relating to the enforcement
of creditors’ rights generally and by general equitable principles.


 


Section 3.4            
Capitalization. The authorized equity securities of Borrower as of the Closing Date is as set forth on Schedule 3.4.
All issued and outstanding equity securities of Borrower are duly authorized and validly issued, fully paid, nonassessable, free
and clear of all Liens other than those in favor of Agent for the benefit of Agent and Lenders, and such equity securities were
issued in compliance with all applicable Laws. No shares of the capital stock or other equity securities of Borrower, other than
those described above, are issued and outstanding as of the date set forth on Schedule 3.4. Except as set forth on Schedule 3.4,
as of the Closing Date there are no preemptive or other outstanding rights, options, warrants, conversion rights or similar agreements
or understandings for the purchase or acquisition from Borrower of any equity securities of any such entity.


 






    	27



    	 



    
 


Section 3.5            
Financial Information. All information delivered to Agent and pertaining to the financial condition of Borrower
fairly presents the financial position of Borrower as of such date in conformity with GAAP (and as to unaudited financial statements,
subject to normal year-end adjustments and the absence of footnote disclosures). Since September 30, 2011, there has been no material
adverse change in the business, operations, properties, prospects or condition (financial or otherwise) of any Credit Party.


 


Section 3.6            
Litigation. Except as set forth on Schedule 3.6 as of the Closing Date, and except as hereafter disclosed
to Agent in writing, there is no Litigation involving, individually or in the aggregate, more than One Hundred Thousand Dollars
($100,000.00) pending against, or to the knowledge of any Responsible Officer, threatened against or affecting, any Credit Party
or, to Borrower’s knowledge, any party to any Operative Document other than Borrower.


 


Section 3.7            
Ownership of Property. Borrower is the lawful owner of, has good and marketable title to and is in lawful possession
of, or has valid leasehold interests in, all properties and other assets (real or personal, tangible, intangible or mixed) purported
or reported to be owned or leased (as the case may be) by such Person.


 


Section 3.8            
No Default. No Event of Default, or to such Borrower’s knowledge, Default, has occurred and is continuing.
To Borrower’s knowledge, Borrower is not in breach or default under or with respect to any contract, agreement, lease or
other instrument to which it is a party or by which its property is bound or affected, which breach or default could reasonably
be expected to have a Material Adverse Effect.


 


Section 3.9            
Labor Matters. As of the Closing Date, there are no strikes or other labor disputes pending or, to any Borrower’s
knowledge, threatened against Borrower. To Borrower’s knowledge, hours worked and payments made to the employees of the Credit
Parties have not been in violation of the Fair Labor Standards Act or any other applicable Law dealing with such matters. To Borrower’s
knowledge, all payments due from the Credit Parties, or for which any claim known to any such Credit Party may be made against
any of them, on account of wages and employee and retiree health and welfare insurance and other benefits have been paid or accrued
as a liability on their books, as the case may be. The consummation of the transactions contemplated by the Financing Documents
will not give rise to a right of termination or right of renegotiation on the part of any union under any collective bargaining
agreement to which it is a party or by which it is bound.


 


Section 3.10        
Regulated Entities. No Credit Party is an “investment company” or a company “controlled”
by an “investment company” or a “subsidiary” of an “investment company,” all within the meaning
of the Investment Company Act of 1940.


 


Section 3.11        
Margin Regulations. None of the proceeds from the Loans have been or will be used, directly or indirectly, for
the purpose of purchasing or carrying any “margin stock” (as defined in Regulation U of the Federal Reserve Board),
for the purpose of reducing or retiring any indebtedness which was originally incurred to purchase or carry any “margin stock”
or for any other purpose which might cause any of the Loans to be considered a “purpose credit” within the meaning
of Regulation T, U or X of the Federal Reserve Board.


 


Section 3.12        
Compliance With Laws; Anti-Terrorism Laws.


 


(a)               
Borrower is in compliance with the requirements of all applicable Laws, except for such Laws the noncompliance with which
could not reasonably be expected to have a Material Adverse Effect.


 






    	28



    	 



    
 


(b)              
None of the Credit Parties and, to the knowledge of the Credit Parties, none of their Affiliates (i) is in violation
of any Anti-Terrorism Law, (ii) engages in or conspires to engage in any transaction that evades or avoids, or has the purpose
of evading or avoiding, or attempts to violate, any of the prohibitions set forth in any Anti-Terrorism Law, (iii) is a Blocked
Person, or is controlled by a Blocked Person, (iv) is acting or will act for or on behalf of a Blocked Person, (v) is associated
with, or will become associated with, a Blocked Person or (vi) is providing, or will provide, material, financial or technical
support or other services to or in support of acts of terrorism of a Blocked Person. Neither Borrower nor, to the knowledge of
Borrower, any of its Affiliates or agents acting or benefiting in any capacity in connection with the transactions contemplated
by this Agreement, (A) conducts any business or engages in making or receiving any contribution of funds, goods or services
to or for the benefit of any Blocked Person, or (B) deals in, or otherwise engages in any transaction relating to, any property
or interest in property blocked pursuant to Executive Order No. 13224, any similar executive order or other Anti-Terrorism
Law.


 


Section 3.13        
Taxes. All federal, state and local tax returns, reports and statements required to be filed by or on behalf
of Borrower have been filed with the appropriate Governmental Authorities in all jurisdictions in which such returns, reports and
statements are required to be filed and, except to the extent subject to a Permitted Contest, all Taxes (including real property
Taxes) and other charges shown to be due and payable in respect thereof have been timely paid prior to the date on which any fine,
penalty, interest, late charge or loss may be added thereto for nonpayment thereof. Except to the extent subject to a Permitted
Contest, all state and local sales and use Taxes required to be paid by Borrower have been paid. All federal and state returns
have been filed by Borrower for all periods for which returns were due with respect to employee income tax withholding, social
security and unemployment taxes, and, except to the extent subject to a Permitted Contest, the amounts shown thereon to be due
and payable have been paid in full or adequate provisions therefor have been made.


 


Section 3.14        
Compliance with ERISA.


 


(a)               
Each ERISA Plan (and the related trusts and funding agreements) complies in form and in operation with, has been administered
in compliance with, and the terms of each ERISA Plan satisfy, the applicable requirements of ERISA and the Code in all material
respects. Each ERISA Plan which is intended to be qualified under Section 401(a) of the Code is so qualified, and the United
States Internal Revenue Service has issued a favorable determination letter with respect to each such ERISA Plan which may be relied
on currently. Borrower has not incurred liability for any material excise tax under any of Sections 4971 through 5000 of the
Code.


 


(b)              
Except as could not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect, each Borrower
and each Subsidiary is in compliance with the applicable provisions of ERISA and the provision of the Code relating to ERISA Plans
and the regulations and published interpretations therein. During the thirty-six (36) month period prior to the Closing Date or
the making of any Loan, (i) no steps have been taken to terminate any Pension Plan, and (ii) no contribution failure
has occurred with respect to any Pension Plan sufficient to give rise to a Lien under Section 302(f) of ERISA. No condition
exists or event or transaction has occurred with respect to any Pension Plan which could result in the incurrence by Borrower of
any material liability, fine or penalty. Borrower has not incurred liability to the PBGC (other than for current premiums) with
respect to any employee Pension Plan. All contributions (if any) have been made on a timely basis to any Multiemployer Plan that
are required to be made by Borrower or any other member of the Controlled Group under the terms of the plan or of any collective
bargaining agreement or by applicable Law; no Credit Party nor any member of the Controlled Group has withdrawn or partially withdrawn
from any Multiemployer Plan, incurred any withdrawal liability with respect to any such plan or received notice of any claim or
demand for withdrawal liability or partial withdrawal liability from any such plan, and no condition has occurred which, if continued,
could result in a withdrawal or partial withdrawal from any such plan, and no Credit Party nor any member of the Controlled Group
has received any notice that any Multiemployer Plan is in reorganization, that increased contributions may be required to avoid
a reduction in plan benefits or the imposition of any excise tax, that any such plan is or has been funded at a rate less than
that required under Section 412 of the Code, that any such plan is or may be terminated, or that any such plan is or may become
insolvent.


 






    	29



    	 



    
 


Section 3.15        
Consummation of Operative Documents; Brokers. Except for fees payable to Agent and/or Lenders, no broker, finder
or other intermediary has brought about the obtaining, making or closing of the transactions contemplated by the Operative Documents,
and Borrower has no obligation and will have no obligation to any Person in respect of any finder’s or brokerage fees, commissions
or other expenses in connection herewith or therewith.


 


Section 3.16        
Related Transactions. All transactions contemplated by the Operative Documents to be consummated on or prior
to the date hereof have been so consummated (including, without limitation, the disbursement and transfer of all funds in connection
therewith) in all material respects pursuant to the provisions of the applicable Operative Documents, true and complete copies
of which have been delivered to Agent, and in compliance with all applicable Law, except for such Laws the noncompliance with which
would not reasonably be expected to have a Material Adverse Effect.


 


Section 3.17        
Material Contracts. Except for the Operative Documents and the other agreements set
forth on Schedule 3.17 (collectively with the Operative Documents, the “Material Contracts”; it
being understood that Material Contracts shall include all agreements that the Borrower reasonably determines are a “material
contract” requiring disclosure on Forms 10-K, 10-Q and 8-K, as filed with the SEC), as of the Closing Date there are no (a)
employment agreements covering the senior management of Borrower (e.g. all officers required to report stock holdings in Borrower
on Form 3, as filed with the SEC), requiring payment of more than Two Hundred Thousand Dollars ($200,000) in the aggregate in any
year, (b) Intellectual Property licenses or other lease or license agreements to which Borrower is a party, either as lessor or
lessee, or as licensor or licensee (other than licenses arising from the purchase of “off the shelf” products) requiring
payment of more than Two Hundred Thousand Dollars ($200,000) in the aggregate in any year, (c) customer, distribution, marketing
or supply agreements to which Borrower is a party requiring payment of more than Two Hundred Fifty Thousand Dollars ($250,000)
in the aggregate in any year, or (d) any agreements or instruments to which Borrower is a party, and the breach, nonperformance
or cancellation of which could reasonably be expected to have a Material Adverse Effect. The consummation of the transactions
contemplated by the Financing Documents will not give rise to a right of termination in favor of any party to any Material Contract
(other than Borrower), except for such Material Contracts the noncompliance with which would not reasonably be expected to have
a Material Adverse Effect.


 


Section 3.18        
Compliance with Environmental Requirements; No Hazardous Materials. Except in each case as set forth on Schedule 3.18:


 


(a)               
no notice, notification, demand, request for information, citation, summons, complaint or order has been issued, no complaint
has been filed, no penalty has been assessed and no investigation or review is pending, or to such Borrower’s knowledge,
threatened by any Governmental Authority or other Person with respect to any (i) alleged violation by Borrower of any Environmental
Law, (ii) alleged failure by Borrower to have any Permits required in connection with the conduct of its business or to comply
with the terms and conditions thereof, (iii) any generation, treatment, storage, recycling, transportation or disposal of
any Hazardous Materials, or (iv) release of Hazardous Materials; and


 






    	30



    	 



    
 





(b)              
no property now owned or leased by Borrower and, to the knowledge of each Borrower, no such property previously owned or
leased by Borrower, to which Borrower has, directly or indirectly, transported or arranged for the transportation of any Hazardous
Materials, is listed or, to such Borrower’s knowledge, proposed for listing, on the National Priorities List promulgated
pursuant to CERCLA, or CERCLIS (as defined in CERCLA) or any similar state list or is the subject of federal, state or local enforcement
actions or, to the knowledge of such Borrower, other investigations which may lead to claims against Borrower for clean-up costs,
remedial work, damage to natural resources or personal injury claims, including, without limitation, claims under CERCLA.


 


For purposes of this
Section 3.18, Borrower shall be deemed to include any business or business entity (including a corporation) that is, in whole
or in part, a predecessor of Borrower.


 


Section 3.19        
Intellectual Property. A list of all of Borrower’s Intellectual Property and all license agreements (including
all in-bound license agreements, but excluding over-the-counter software that is commercially available to the public) is set forth
on Schedule 3.19, which indicates, for each item of property: (i) the name of Borrower owning such Intellectual Property
or licensee to such license agreement; (ii) Borrower’s identifier for such property (i.e., name of patent, license, etc.),
(iii) whether such property is Intellectual Property (or application therefor) owned by Borrower or is property to which Borrower
has rights pursuant to a license agreement, (iv) the expiration date of such Intellectual Property or license agreement, and (v)
whether such property constitutes Material Intellectual Property. In the case of any Material Intellectual Property that is a license
agreement, Schedule 3.19 further indicates, for each: (A) the name and address of the licensor, (B) the name and date of
the agreement pursuant to which such item of Material Intellectual Property is licensed, (C) whether or not such license agreement
grants an exclusive license to Borrower, (D) whether there are any purported restrictions in such license agreement as to the ability
of Borrower to grant a security interest in and/or to transfer any of its rights as a licensee under such license agreement, and
(E) whether a default under or termination of such license agreement could interfere with Agent’s right to sell or assign
such license or any other Collateral. Except as noted on Schedule 3.19, Borrower is the sole owner of its Intellectual
Property, except for non-exclusive licenses granted to its customers in the Ordinary Course of Business as identified on Schedule
3.19. Each patent is valid and enforceable and no part of the Intellectual Property has been judged invalid or unenforceable,
in whole or in part, and 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 could not reasonably be expected to have a Material Adverse
Effect.


 


Section 3.20        
Solvency. After giving effect to the Loan advance and the liabilities and obligations of Borrower under the Operative
Documents, Borrower is Solvent.


 


Section 3.21        
Full Disclosure. No written representation, warranty or other statement of Borrower in any certificate or written
statement given to Agent or any Lender, as of the date such representation, warranty, or other statement was made, taken together
with all such written certificates and written statements given to Agent or any Lender, 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 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).


 


Section 3.22        
Interest Rate. To Borrower’s knowledge, the rate of interest paid under the Notes and the method and manner
of the calculation thereof do not violate any usury or other law or applicable Laws, any of the Organizational Documents, or any
of the Operative Documents.


 






    	31



    	 



    
 


Section 3.23        
Subsidiaries. Borrowers do not own any stock, partnership interests, limited liability company interests or other
equity securities except for Permitted Investments, and, except as noted on Schedule 3.23, no Borrower has any Subsidiaries.


 


Section 3.24        
Regulatory Compliance; Required Permits.


 


(a)              
No Borrower
has violated any Laws, ordinances or rules, the violation of which could reasonably be expected to have a Material Adverse Effect.
None of Borrower’s or any of its Subsidiaries’ properties or assets has been used by Borrower or any Subsidiary or,
to Borrower’s knowledge, by previous Persons, in disposing, producing, storing, treating, or transporting any hazardous substance
other than in material compliance with applicable Laws. Borrower has obtained all Required Permits, or has contracted with third
parties holding Required Permits, necessary for compliance with all Laws and all such Required Permits are current. 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,
except where the failure to do so would not reasonably be expected to have a Material Adverse Effect.


 


(b)              
All Products
and all Required Permits are listed on Schedule 3.24 (as updated from time to time pursuant to Section 4.12), and Borrower
has delivered to Agent a copy of all such Required Permits as of the date hereof.


 


(c)              
Without
limiting the generality of Section 3.24(a) above, with respect to any Product being tested or manufactured by Borrower, to Borrower’s
knowledge, Borrower has received, and such Product is the subject of, all Required Permits needed in connection with the testing
or manufacture of such Product as such testing is currently being conducted by or on behalf of Borrower, and Borrower has not received
any notice from any applicable Governmental Authority, specifically including the FDA, that such Governmental Authority is conducting
an investigation or review of (i) Borrower’s manufacturing facilities and processes for such Product which have disclosed
any material deficiencies or violations of Laws and/or the Required Permits related to the manufacture of such Product, or (ii)
any such Required Permit or that any such Required Permit has been revoked or withdrawn, nor has any such Governmental Authority
issued any order or recommendation stating that the development, testing and/or manufacturing of such Product by Borrower should
cease.


 


(d)              
Without
limiting the generality of Section 3.24(a) above, with respect to any Product marketed or sold by Borrower, to Borrower’s
knowledge, Borrower has received, and such Product is the subject of, all Required Permits needed in connection with the marketing
and sales of such Product as currently being marketed or sold by Borrower, and Borrower has not received any notice from any applicable
Governmental Authority, specifically including the FDA, that such Governmental Authority is conducting an investigation or review
of any such Required Permit or approval or that any such Required Permit has been revoked or withdrawn, nor has any such Governmental
Authority issued any order or recommendation stating that such marketing or sales of such Product cease or that such Product be
withdrawn from the marketplace.


 


(e)              
Without
limiting the generality of Section 3.24(a) above, (i) there have been no adverse clinical test results which have or could reasonably
be expected to cause a Material Adverse Effect, and (ii) there have been (X) no Product recalls or (Y) voluntary Product withdrawals
from any market that could reasonably be expected to cause a Material Adverse Effect.


 


(f)              
Borrower has not experienced
any significant failures in its manufacturing of any Product such that the amount of such Product successfully manufactured by
Borrower in accordance with all specifications thereof and the required payments related thereto in any month shall decrease significantly
with respect to the quantities of such Product produced in the prior month.


 






    	32



    	 



    
 





Article 4
- AFFIRMATIVE COVENANTS


 


Each Borrower agrees
that, so long as any Credit Exposure exists:


 


Section 4.1            
Financial Statements and Other Reports. Borrower will deliver to Agent: (a) as soon as available, but no
later than forty (40) days after the last day of each month, a company prepared consolidated balance sheet, cash flow and income
statement covering Borrower’s consolidated operations during the period, prepared under GAAP, consistently applied, certified
by a Responsible Officer and in a form acceptable to Agent; (b) together with the financial reporting package described in (a)
above, evidence of payment and satisfaction of all payroll, withholding and similar taxes due and owing by all Borrowers with respect
to the payroll period(s) occurring during such month; (c) as soon as available, but no later than one-hundred twenty (120)
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
acceptable to Agent in its reasonable discretion; (d) within five (5) days of delivery, copies of all statements, reports
and notices made available to all of Borrower’s security holders or to any holders of Subordinated Debt; (e) all reports
on Form 10-K, 10-Q and 8-K filed with the SEC, which are posted on Borrower’s website at www.bacterin.com and the SEC’s
website at www.sec.gov (such access being sufficient for notice and delivery of such reports); (f) as soon as available, but
no later than forty (40) days after the last day of each month, a report of any legal actions pending or threatened against any
Borrower or any of its Subsidiaries that are likely to result in damages or costs to any Borrower or any of its Subsidiaries of
One Hundred Thousand Dollars ($100,000) or more; (g) as soon as available, but no later than forty (40) days after the last
day of each month (but in any event prior to registering any Intellectual Property with the United States Copyright Office) (i)
notice that Borrower has acquired and/or developed any new Material Intellectual Property, (ii) notice that Borrower has entered
into or become bound by any additional material license agreement (other than over-the-counter software that is commercially available
to the public) and (iii) deliver to Agent an updated Schedule 3.19 reflecting same, and upon any other material change in
Borrower’s Material Intellectual Property from that listed on Schedule 3.19; Borrower shall take such steps as Agent
requests to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for (i) all licenses or agreements
to be deemed “Collateral” and for Agent to have a security interest in it that might otherwise be restricted or prohibited
by Law or by the terms of any such license or agreement, whether now existing or entered into in the future, and (ii) Agent to
have the ability in the event of a liquidation of any Collateral to dispose of such Collateral in accordance with Agent’s
rights and remedies under this Agreement and the other Loan Documents; and (h) budgets, sales projections, operating plans
and other financial information and information, reports or statements regarding the Borrowers, their business and the Collateral
as Agent may from time to time reasonably request. Each Borrower will, within forty (40) days after the last day of each month,
deliver to Agent with the monthly financial statements, a duly completed Compliance Certificate signed by a Responsible Officer
setting forth calculations showing compliance with the financial covenants set forth in this Agreement. Promptly upon their becoming
available, Borrowers shall deliver to Agent copies of all Material Contracts filed with Form 10-K, 10-Q and 8-K filed with the
SEC, which are posted on Borrower’s website at www.bacterin.com and the SEC’s website at www.sec.gov (such access being
sufficient for notice and delivery of such reports). Each Borrower will, within ten (10) days after the last day of each month,
deliver to Agent a duly completed Borrowing Base Certificate signed by a Responsible Officer, with aged listings of accounts receivable
and accounts payable (by invoice date). Borrowers shall, every ninety (90) days on a schedule to be designated by Agent, and at
such other times as Agent shall request, deliver to Agent a schedule of Eligible Accounts denoting the thirty (30) largest Account
Debtors during such quarter.


 






    	33



    	 



    
 


Section 4.2            
Payment and Performance of Obligations. Each Borrower (a) will pay and discharge, and cause each Subsidiary
to pay and discharge, on a timely basis as and when due, all of their respective obligations and liabilities, except for such obligations
and/or liabilities (i) that may be the subject of a Permitted Contest, and (ii) the nonpayment or nondischarge of which
could not reasonably be expected to have a Material Adverse Effect or result in a Lien against any Collateral, except for Permitted
Liens, (b) without limiting anything contained in the foregoing clause (a), pay all amounts due and owing in respect of Taxes (including
without limitation, payroll tax liabilities) on a timely basis as and when due, and in any case prior to the date (including extensions),
on which any fine, penalty, interest, late charge or loss may be added thereto for nonpayment thereof, (c) will maintain,
and cause each Subsidiary to maintain, in accordance with GAAP, appropriate reserves for the accrual of all of their respective
obligations and liabilities, and (d) will not breach or permit any Subsidiary to breach, or permit to exist any default under,
the terms of any lease, commitment, contract, instrument or obligation to which it is a party, or by which its properties or assets
are bound, except for such breaches or defaults which could not reasonably be expected to have a Material Adverse Effect.


 


Section 4.3            
Maintenance of Existence. Each Borrower will preserve, renew and keep in full force and effect and in good standing,
and will cause each Subsidiary to preserve, renew and keep in full force and effect and in good standing, their respective existence
and their respective rights, privileges and franchises necessary or desirable in the normal conduct of business.


 


Section 4.4            
Maintenance of Property; Insurance.


 


(a)               
Each Borrower will keep, and will cause each Subsidiary to keep, all property useful and necessary in its business in good
working order and condition, ordinary wear and tear excepted. If all or any part of the Collateral useful or necessary in its business,
or upon which any Borrowing Base is calculated, becomes damaged or destroyed, each Borrower will, and will cause each Subsidiary
to, promptly and completely repair and/or restore the affected Collateral in a good and workmanlike manner, regardless of whether
Agent agrees to disburse insurance proceeds or other sums to pay costs of the work of repair or reconstruction.


 


(b)              
Upon completion of any Permitted Contest, Borrowers shall, and will cause each Subsidiary to, promptly pay the amount due,
if any, and deliver to Agent proof of the completion of the contest and payment of the amount due, if any, following which Agent
shall return the security, if any, deposited with Agent pursuant to the definition of Permitted Contest.


 


(c)               
Each of the Borrowers will maintain, or cause to be maintained, (i) casualty insurance on all real and personal property
on an all risks basis (including the perils of flood, windstorm and quake), covering the repair and replacement cost of all such
property and coverage, business interruption and rent loss coverages with extended period of indemnity (for the period required
by Agent from time to time) and indemnity for extra expense, in each case without application of coinsurance and with agreed amount
endorsements, (ii) general and professional liability insurance (including products/completed operations liability coverage), and
(iii) such other insurance coverage in such amounts and with respect to such risks as Agent may request from time to time;
provided, however, that in no event shall such insurance be in amounts or with coverage less than, or with carriers
with qualifications inferior to, any of the insurance or carriers in existence as of the Closing Date (or required to be in existence
after the Closing Date under a Financing Document), as evidenced by the insurance certificates attached hereto as Schedule 4.4.
All such insurance shall be provided by insurers having an A.M. Best policyholders rating reasonably acceptable to Agent.


 






    	34



    	 



    
 


(d)              
On or prior to the Closing Date, and at all times thereafter, each Borrower will cause Agent to be named as an additional
insured, assignee and lender loss payee (which shall include, as applicable, identification as mortgagee), as applicable, on each
insurance policy required to be maintained pursuant to this Section 4.4 pursuant to endorsements in form and substance acceptable
to Agent. Borrowers shall deliver to Agent and the Lenders (i) on the Closing Date, a certificate from Borrowers’ insurance
broker dated such date showing the amount of coverage as of such date, and that such policies will include effective waivers (whether
under the terms of any such policy or otherwise) by the insurer of all claims for insurance premiums against all loss payees and
additional insureds and all rights of subrogation against all loss payees and additional insureds, and that if all or any part
of such policy is canceled, terminated or expires, the insurer will forthwith give notice thereof to each additional insured, assignee
and loss payee and that no cancellation, reduction in amount or material change in coverage thereof shall be effective until at
least thirty (30) days after receipt by each additional insured, assignee and loss payee of written notice thereof, (ii) on
an annual basis, and upon the request of any Lender through Agent from time to time full information as to the insurance carried,
(iii) within twenty (20) days of receipt of notice from any insurer, a copy of any notice of cancellation, nonrenewal or material
change in coverage from that existing on the date of this Agreement, (iv) forthwith, notice of any cancellation or nonrenewal
of coverage by any Borrower, and (v) at least twenty (20) days prior to expiration of any policy of insurance, evidence of renewal
of such insurance upon the terms and conditions herein required.


 


(e)               
In the event any Borrower fails to provide Agent with evidence of the insurance coverage required by this Agreement, Agent
may obtain such insurance policies required in this Section 4.4 following ten (10) Business Days’ notice to Borrower and
the subsequent failure during such ten (10) Business Day period by Borrower to obtain such required insurance. This insurance may,
but need not, protect such Borrower’s interests. The coverage purchased by Agent may not pay any claim made by such Borrower
or any claim that is made against such Borrower in connection with the Collateral. Such Borrower may later cancel any insurance
purchased by Agent, but only after providing Agent with evidence that such Borrower has obtained insurance as required by this
Agreement. If Agent purchases insurance for the Collateral following ten (10) Business Days’ notice to Borrower and the subsequent
failure during such ten (10) Business Day period by Borrower to obtain such required insurance, Borrowers will be responsible for
the costs of that insurance to the fullest extent provided by law, including interest and other charges imposed by Agent in connection
with the placement of the insurance, until the effective date of the cancellation or expiration of the insurance. The costs of
the insurance may be added to the Obligations. The costs of the insurance may be more than the cost of insurance such Borrower
is able to obtain on its own.


 


Section 4.5            
Compliance with Laws and Material Contracts. Each Borrower will comply, and cause each Subsidiary to comply,
with the requirements of all applicable Laws and Material Contracts, except to the extent that failure to so comply could not reasonably
be expected to (a) have a Material Adverse Effect, or (b) result in any Lien upon either (i) a material portion
of the assets of any such Person in favor of any Governmental Authority, or (ii) any Collateral which is part of the Borrowing
Base.


 


Section 4.6            
Inspection of Property, Books and Records. Each Borrower will keep, and will cause each Subsidiary to keep, proper
books of record substantially in accordance with GAAP in which full, true and correct entries shall be made of all dealings and
transactions in relation to its business and activities; and will permit, and will cause each Subsidiary to permit, at the sole
cost of the applicable Borrower or any applicable Subsidiary, representatives of Agent and of any Lender to visit and inspect any
of their respective properties, to examine and make abstracts or copies from any of their respective books and records, to conduct
a collateral audit and analysis of their respective operations and the Collateral, to verify the amount and age of the Accounts,
the identity and credit of the respective Account Debtors, to review the billing practices of Borrowers and to discuss their respective
affairs, finances and accounts with their respective officers, employees and independent public accountants as often as may reasonably
be desired. In the absence of an Event of Default, Agent or any Lender exercising any rights pursuant to this Section 4.6
shall give the applicable Borrower or any applicable Subsidiary commercially reasonable prior notice of such exercise. No notice
shall be required during the existence and continuance of any Default or any time during which Agent reasonably believes a Default
exists.


 






    	35



    	 



    
 


Section 4.7            
Use of Proceeds. Borrowers shall use the proceeds of Revolving Loans solely for transaction fees incurred in
connection with the Financing Documents and for working capital needs of Borrowers. No portion of the proceeds of the Loans will
be used for family, personal, agricultural or household use.


 


Section 4.8            
Estoppel Certificates. After written request by Agent, Borrowers, within fifteen (15) days and at their
expense, will furnish Agent with a statement, duly acknowledged and certified, setting forth (a) the amount of the original
principal amount of the Notes, and the unpaid principal amount of the Notes, (b) the rate of interest of the Notes, (c) the
date payments of interest and/or principal were last paid, (d) any offsets or defenses to the payment of the Obligations,
and if any are alleged, the nature thereof, (e) that the Notes and this Agreement have not been modified or if modified, giving
particulars of such modification, and (f) that there has occurred and is then continuing no Default or if such Default exists,
the nature thereof, the period of time it has existed, and the action being taken to remedy such Default. After written request
by Agent, Borrowers, within fifteen (15) days and at their expense, will furnish Agent with a certificate, signed by a Responsible
Officer of Borrowers, updating all of the representations and warranties contained in this Agreement and the other Financing Documents
and certifying that all of the representations and warranties contained in this Agreement and the other Financing Documents, as
updated pursuant to such certificate, are true, accurate and complete as of the date of such certificate.


 


Section 4.9            
Notices of Litigation and Defaults. Borrowers will give prompt written notice to Agent (a) of any litigation
or governmental proceedings pending or threatened (in writing) against Borrowers or other Credit Party which would reasonably be
expected to have a Material Adverse Effect with respect to Borrowers or any other Credit Party or which in any manner calls into
question the validity or enforceability of any Financing Document, (b) upon any Borrower becoming aware of the existence of any
Default or Event of Default, (c) if Borrower is in breach or default under or with respect to any Material Contract, or if Borrower
is in breach or default under or with respect to any other contract, agreement, lease or other instrument to which it is a party
or by which its property is bound or affected, which breach or default could reasonably be expected to have a Material Adverse
Effect, (d) of any strikes or other labor disputes pending or, to any Borrower’s knowledge, threatened against Borrower,
(e) if there is any infringement or claim of infringement by any other Person with respect to any Intellectual Property rights
of Borrower that could reasonably be expected to have a Material Adverse Effect, or if there is any claim by any other Person that
Borrower in the conduct of its business is infringing on the Intellectual Property Rights of others, and (f) of all returns, recoveries,
disputes and claims that involve more than $100,000. Borrowers represent and warrant that Schedule 3.6 sets forth a
complete list of all matters existing as of the Closing Date for which notice could be required under this Section and all
litigation or governmental proceedings pending or threatened (in writing) against Borrowers as of the Closing Date that involve
more than $100,000 or that could reasonably be expected to have a Material Adverse Effect.


 


Section 4.10        
Hazardous Materials; Remediation.


 


(a)               
If any release or disposal of Hazardous Materials shall occur or shall have occurred on any real property or any other assets
of any Borrower or any other Credit Party, such Borrower will cause, or direct the applicable Credit Party to cause, the prompt
containment and removal of such Hazardous Materials and the remediation of such real property or other assets as is necessary to
comply with all Environmental Laws and to preserve the value of such real property or other assets. Without limiting the generality
of the foregoing, each Borrower shall, and shall cause each other Credit Party to, comply with each Environmental Law requiring
the performance at any real property by any Borrower or any other Credit Party of activities in response to the release or threatened
release of a Hazardous Material.


 






    	36



    	 



    
 


(b)              
Borrowers will provide Agent within thirty (30) days after written demand therefor with a bond, letter of credit or similar
financial assurance evidencing to the reasonable satisfaction of Agent that sufficient funds are available to pay the cost of removing,
treating and disposing of any Hazardous Materials or Hazardous Materials Contamination as required by applicable Laws and discharging
any assessment which may be established on any property as a result thereof, such demand to be made, if at all, upon Agent’s
reasonable business determination that the failure to remove, treat or dispose of any Hazardous Materials or Hazardous Materials
Contamination required by applicable Law, or the failure to discharge any such assessment could reasonably be expected to have
a Material Adverse Effect.


 


Section 4.11        
Further Assurances.


 


(a)               
Each Borrower will, at its own cost and expense, promptly and duly take, execute, acknowledge and deliver all such further
acts, documents and assurances as may from time to time be necessary or as Agent or the Required Lenders may from time to time
reasonably request in order to carry out the intent and purposes of the Financing Documents and the transactions contemplated thereby,
including all such actions to (i) establish, create, preserve, protect and perfect a first priority Lien (subject only to
Permitted Liens) in favor of Agent for itself and for the benefit of the Lenders on the Collateral (including Collateral acquired
after the date hereof), and (ii) unless Agent shall agree otherwise in writing, cause all Subsidiaries of Borrowers to be
jointly and severally obligated with the other Borrowers under all covenants and obligations under this Agreement, including the
obligation to repay the Obligations. Without limiting the generality of the foregoing, (x) Borrowers shall, at the time of
the delivery of any Compliance Certificate disclosing the acquisition by an Borrower of any registered Intellectual Property or
application for the registration of Intellectual Property, deliver to Agent a duly completed and executed supplement to the applicable
Borrower’s Patent Security Agreement or Trademark Security Agreement in form and substance acceptable to Agent, and (y) at
the request of Agent, following the disclosure by Borrowers on any Compliance Certificate of the acquisition by any Borrower of
any rights under a license as a licensee with respect to any registered Intellectual Property or application for the registration
of any Intellectual Property owned by another Person, Borrowers shall execute any documents requested by Agent to establish, create,
preserve, protect and perfect a first priority lien in favor of Agent, to the extent legally possible, in such Borrower’s
rights under such license and shall use their commercially reasonable best efforts to obtain the written consent of the licensor
which such license to the granting in favor of Agent of a Lien on such Borrower’s rights as licensee under such license.


 


(b)              
Upon receipt of an affidavit of an officer of Agent or a Lender as to the loss, theft, destruction or mutilation of any
Note or any other Financing Document which is not of public record, and, in the case of any such mutilation, upon surrender and
cancellation of such Note or other applicable Financing Document, Borrowers will issue, in lieu thereof, a replacement Note or
other applicable Financing Document, dated the date of such lost, stolen, destroyed or mutilated Note or other Financing Document
in the same principal amount thereof and otherwise of like tenor.


 


(c)               
[Reserved]


 






    	37



    	 



    
 


(d)              
Upon the request of Agent, Borrowers shall obtain a landlord’s agreement from the lessor of any business location
where any portion of the Collateral included in or proposed to be included in the Borrowing Base, or the records relating to such
Collateral and/or software and equipment relating to such records or Collateral, is stored or located, which agreement or letter
shall be reasonably satisfactory in form and substance to Agent. Borrowers shall timely and fully pay and perform its obligations
under all leases and other agreements with respect to each leased location where any Collateral, or any records related thereto,
is or may be located.


 


Section 4.12        
Notices of New Products or Required Permits. If, after the Closing Date, Borrower determines to manufacture,
sell, develop, test or market any new Product, other than new Products that are derivatives of current Products, Borrower shall,
within forty (40) days after the end of each month, give written notice to Agent of such determination (which notice may be in
the form of a press release attached to an 8-K filing and shall include a brief description of such Product), plus upon request,
a list of all Required Permits relating to such new Product (and a copy of such Required Permits if requested by Agent) and/or
Borrower’s manufacture, sale, development, testing or marketing thereof issued or outstanding as of the date of such notice),
along with a copy of an updated Schedule 3.24; provided, however, that if Borrower shall at any time obtain any new
or additional Required Permits from the FDA, DEA, or parallel state or local authorities, or foreign counterparts of the FDA, DEA,
or parallel state or local authorities, with respect to any Product which has previously been disclosed to Agent, Borrower shall
promptly give written notice to Agent of such new or additional Required Permits (along with a copy thereof if requested by Agent).


 


Section 4.13        
Power of Attorney. Each of the officers of Agent is hereby irrevocably made, constituted and appointed the true
and lawful attorney for Borrowers (without requiring any of them to act as such) with full power of substitution to do the following:
(a) endorse the name of Borrowers upon any and all checks, drafts, money orders, and other instruments for the payment of
money that are payable to Borrowers and constitute collections on Borrowers’ Accounts; (b) so long as Agent has provided
not less than five (5) Business Days’ prior written notice to Borrower to perform the same and Borrower has failed to take
such action, execute in the name of Borrowers any schedules, assignments, instruments, documents, and statements that Borrowers
are obligated to give Agent under this Agreement; (c) after the occurrence and during the continuance of an Event of Default,
take any action Borrowers are required to take under this Agreement; (d) so long as Agent has provided not less than five
(5) Business Days’ prior written notice to Borrower to perform the same and Borrower has failed to take such action, do such
other and further acts and deeds in the name of Borrowers that Agent may deem necessary or desirable to enforce any Account or
other Collateral or perfect Agent’s security interest or Lien in any Collateral; and (e) after the occurrence and during
the continuance of an Event of Default, do such other and further acts and deeds in the name of Borrowers that Agent may deem necessary
or desirable to enforce its rights with regard to any Account or other Collateral. This power of attorney shall be coupled with
an interest and irrevocable until all outstanding Obligations are paid in full, and Agent and Lenders have no further Credit Exposure.


 


Section 4.14        
Borrowing Base Collateral Administration.


 


(a)               
All data and other information relating to Accounts or other intangible Collateral shall at all times be kept by Borrowers,
at their respective offices and shall not be moved from such locations without (i) providing prior written notice to Agent,
and (ii) obtaining the prior written consent of Agent, which consent shall not be unreasonably withheld.


 


(b)              
Borrowers shall provide prompt written notice to each Person who either is currently an Account Debtor or becomes an Account
Debtor at any time following the date of this Agreement that directs each Account Debtor to make payments into the Lockbox, and
hereby authorizes Agent, upon Borrowers’ failure to send such notices within ten (10) days after the date of this Agreement
(or ten (10) days after the Person becomes an Account Debtor), to send any and all similar notices to such Person. Agent reserves
the right to notify Account Debtors that Agent has been granted a Lien upon all Accounts.


 






    	38



    	 



    
 


Article 5
- NEGATIVE COVENANTS


 


Each Borrower agrees
that, so long as any Credit Exposure exists:


 


Section 5.1            
Debt; Contingent Obligations. No Borrower will, or will permit any Subsidiary to, directly or indirectly, create,
incur, assume, guarantee or otherwise become or remain directly or indirectly liable with respect to, any Debt, except for Permitted
Indebtedness. No Borrower will, or will permit any Subsidiary to, directly or indirectly, create, assume, incur or suffer to exist
any Contingent Obligations, except for Permitted Contingent Obligations.


 


Section 5.2            
Liens. No Borrower will, or will permit any Subsidiary to, directly or indirectly, create, assume or suffer to
exist any Lien on any asset now owned or hereafter acquired by it, except for Permitted Liens.


 


Section 5.3            
Distributions. No Borrower will, or will permit any Subsidiary to, directly or indirectly, declare, order, pay,
make or set apart any sum for any Distribution (other than repurchases of capital stock pursuant to the terms of employee stock
purchase plans, employee restricted stock agreements or similar plans).


 


Section 5.4            
Restrictive Agreements. No Borrower will, or will permit any Subsidiary to, directly or indirectly (a) enter
into or assume any agreement (other than the Financing Documents and any agreements for purchase money debt permitted under clauses
(c) and (d) of the definition of Permitted Indebtedness) prohibiting the creation or assumption of any Lien upon its properties
or assets, whether now owned or hereafter acquired, or (b) create or otherwise cause or suffer to exist or become effective
any consensual encumbrance or restriction of any kind (except as provided by the Financing Documents) on the ability of any Subsidiary
to: (i) pay or make Distributions to any Borrower or any Subsidiary (other than as permitted in Section 5.3 above); (ii) pay
any Debt owed to any Borrower or any Subsidiary; (iii) make loans or advances to any Borrower or any Subsidiary; or (iv) transfer
any of its property or assets to any Borrower or any Subsidiary.


 


Section 5.5            
Payments and Modifications of Subordinated Debt. Borrower will not, and will not permit any Subsidiary to, directly
or indirectly (a) declare, pay, make or set aside any amount for payment in respect of Subordinated Debt, except for payments made
in full compliance with and expressly permitted under the Subordination Agreement, (b) amend or otherwise modify the terms of any
Subordinated Debt, except for amendments or modifications made in full compliance with the Subordination Agreement, (c) declare,
pay, make or set aside any amount for payment in respect of any Debt hereinafter incurred that, by its terms, or by separate agreement,
is subordinated to the Obligations, except for payments made in full compliance with and expressly permitted under the subordination
provisions applicable thereto, or (d) amend or otherwise modify the terms of any such Debt if the effect of such amendment
or modification is to (i) increase the interest rate or fees on, or change the manner or timing of payment of, such Debt, (ii)
accelerate or shorten the dates upon which payments of principal or interest are due on, or the principal amount of, such Debt,
(iii) change in a manner adverse to any Credit Party or Agent any event of default or add or make more restrictive any covenant
with respect to such Debt, (iv) change the prepayment provisions of such Debt or any of the defined terms related thereto, (v)
change the subordination provisions thereof (or the subordination terms of any guaranty thereof), or (vi) change or amend any other
term if such change or amendment would materially increase the obligations of the obligor or confer additional material rights
on the holder of such Debt in a manner adverse to Borrower, any Subsidiaries, Agents or Lenders. Borrower shall, prior to entering
into any such amendment or modification, deliver to Agent reasonably in advance of the execution thereof, any final or execution
form copy thereof.


 






    	39



    	 



    
 


Section
5.6            
Consolidations, Mergers and Sales of Assets; Change in Control. No Borrower will, directly or indirectly (a) consolidate
or merge or amalgamate with or into any other Person, or (b) consummate any Asset Dispositions other than Permitted Asset Dispositions;
provided, however, that no prior written consent shall be
required for any Permitted Acquisition or any merger or acquisition in which, simultaneously with any such merger or acquisition,
all Obligations are assumed or paid off and all commitments of the Lenders to make Loans have terminated; and provided further
that a Subsidiary of Borrower may merge or consolidate into another Subsidiary that is a Loan Party or into Borrower, so long as
(w) Borrower has provided Agent with prior written notice of such transaction, (x) Borrower shall be the surviving legal entity,
(y) Borrower’s tangible net worth is not thereby reduced, and (z) as long as no Event of Default is occurring prior thereto
or arises as a result therefrom . No Borrower will suffer or permit to occur any Change in Control.


 


Section 5.7            
Purchase of Assets, Investments. No Borrower will directly or indirectly (a) acquire or enter into any agreement
to acquire any assets other than in the Ordinary Course of Business; (b) engage or enter into any agreement to engage in any
joint venture or partnership with any other Person or acquire or create any Subsidiary; or (c) acquire or own or enter into
any agreement to acquire or own any Investment in any Person, other than Permitted Investments.


 


Section 5.8            
Transactions with Affiliates. Except as otherwise disclosed on Schedule 5.8, and except for transactions
that are disclosed to Agent in advance of being entered into and which contain terms that are no less favorable to the applicable
Borrower than those which might be obtained from a third party not an Affiliate of Borrower, no Borrower will, or will permit any
Subsidiary to, directly or indirectly, enter into or permit to exist any transaction (including the purchase, sale, lease or exchange
of any property or the rendering of any service) with any Affiliate of any Borrower.


 


Section 5.9            
Modification of Organizational Documents. No Borrower will, or will permit any Subsidiary to, directly or indirectly,
amend or otherwise modify any Organizational Documents of such Person, except for Permitted Modifications.


 


Section 5.10        
Modification of Certain Agreements. No Borrower will, or will permit any Subsidiary to, directly or indirectly,
amend or otherwise modify any Material Contract, which amendment or modification in any case: (a) is contrary to the terms
of this Agreement or any other Financing Document; (b) could reasonably be expected to be adverse to the rights, interests
or privileges of the Agent or the Lenders or their ability to enforce the same; (c) results in the imposition or expansion
in any material respect of any obligation of or restriction or burden on any Borrower or any Subsidiary; or (d) reduces in
any material respect any rights or benefits of any Borrower or any Subsidiaries (it being understood and agreed that any such determination
shall be in the discretion of the Agent). Each Borrower shall, prior to entering into any amendment or other modification of any
of the foregoing documents, deliver to Agent reasonably in advance of the execution thereof, any final or execution form copy of
amendments or other modifications to such documents, and such Borrower agrees not to take, nor permit any of its Subsidiaries to
take, any such action with respect to any such documents without obtaining such approval from Agent.


 


Section 5.11        
Conduct of Business. No Borrower will, or will permit any Subsidiary to, directly or indirectly, engage in any
business other than the businesses currently engaged in by Borrower and such Subsidiary, in each case as described on Schedule
5.11. No Borrower will, or will permit any Subsidiary to, other than in the Ordinary Course of Business, change its normal
billing payment and reimbursement policies and procedures with respect to its Accounts (including, without limitation, the amount
and timing of finance charges, fees and write-offs).


 






    	40



    	 



    
 


Section 5.12        
Lease Payments. No Borrower will, or will permit any Subsidiary to, directly or indirectly, incur or assume (whether
pursuant to a Guarantee or otherwise) any liability for rental payments except in the Ordinary Course of Business.


 


Section 5.13        
Limitation on Sale and Leaseback Transactions. No Borrower will, or will permit any Subsidiary to, directly or
indirectly, enter into any arrangement with any Person whereby, in a substantially contemporaneous transaction, any Borrower or
any Subsidiaries sells or transfers all or substantially all of its right, title and interest in an asset and, in connection therewith,
acquires or leases back the right to use such asset.


 


Section 5.14        
Deposit Accounts and Securities Accounts; Payroll and Benefits Accounts. No Borrower will, or will permit any
Subsidiary to, directly or indirectly, establish any new Deposit Account or Securities Account without prior written notice to
Agent, and unless Agent, such Borrower or such Subsidiary and the bank, financial institution or securities intermediary at which
the account is to be opened enter into a Deposit Account Control Agreement or Securities Account Control Agreement prior to or
concurrently with the establishment of such Deposit Account or Securities Account. Borrowers represent and warrant that Schedule 5.14
lists all of the Deposit Accounts and Securities Accounts of each Borrower as of the Closing Date. The provisions of this Section requiring
Deposit Account Control Agreements shall not apply to Deposit Accounts exclusively used for payroll, payroll taxes and other employee
wage and benefit payments to or for the benefit of Borrowers’ employees and identified to Agent by Borrowers as such; provided,
however, that at all times that any Obligations remain outstanding, Borrower shall maintain one or more separate Deposit Accounts
to hold any and all amounts to be used for payroll, payroll taxes and other employee wage and benefit payments, and shall not commingle
any monies allocated for such purposes with funds in any other Deposit Account.


 


Section 5.15        
Compliance with Anti-Terrorism Laws. Agent hereby notifies Borrowers that pursuant to the requirements of Anti-Terrorism
Laws, and Agent’s policies and practices, Agent is required to obtain, verify and record certain information and documentation
that identifies Borrowers and its principals, which information includes the name and address of each Borrower and its principals
and such other information that will allow Agent to identify such party in accordance with Anti-Terrorism Laws. No Borrower will,
or will permit any Subsidiary to, directly or indirectly, knowingly enter into any Material Contracts with any Blocked Person or
any Person listed on the OFAC Lists. Each Borrower shall immediately notify Agent if such Borrower has knowledge that any Borrower,
any additional Credit Party or any of their respective Affiliates or agents acting or benefiting in any capacity in connection
with the transactions contemplated by this Agreement is or becomes a Blocked Person or (a) is convicted on, (b) pleads
nolo contendere to, (c) is indicted on, or (d) is arraigned and held over on charges involving money laundering
or predicate crimes to money laundering. No Borrower will, or will permit any Subsidiary to, directly or indirectly, (i) conduct
any business or engage in any transaction or dealing with any Blocked Person, including, without limitation, the making or receiving
of any contribution of funds, goods or services to or for the benefit of any Blocked Person, (ii) deal in, or otherwise engage
in any transaction relating to, any property or interests in property blocked pursuant to Executive Order No. 13224, any similar
executive order or other Anti-Terrorism Law, or (iii) engage in or conspire to engage in any transaction that evades or avoids,
or has the purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in Executive Order No. 13224
or other Anti-Terrorism Law.


 






    	41



    	 



    
 





Article 6
- FINANCIAL COVENANTS


 


Section 6.1            
Minimum Net Revenue. Borrowers shall maintain, on a consolidated basis, net revenue for the following periods
as stated below, to be tested as of the first (1st) day of the second (2nd) calendar month immediately following
such periods:


 





	Period	Net Revenue	 
	 	 	 
	January 1, 2011 through December 31, 2011	$25,237,625.00	 
	 	 	 
	February 1, 2011 through January 31, 2012	$26,305,795.00	 
	 	 	 
	March 1, 2011 through February 29, 2012	$27,452,470.00	 
	 	 	 
	April 1, 2011 through March 31, 2012	$28,918,100.00	 
	 	 	 
	May 1, 2011 through April 30, 2012	$29,736,819.00	 
	 	 	 
	June 1, 2011 through May 31, 2012	$30,738,249.00	 
	 	 	 
	July 1, 2011 through June 30, 2012	$32,550,457.00	 
	 	 	 
	October 1, 2011 through September 30, 2012	$36,595,250.00	 
	 	 	 
	January 1, 2012 through Dec 31, 2012	$41,103,527.00	 
	 	 	 
	April 1, 2012 through March 31, 2013	$46,175,998.00	 
	 	 	 
	July 1, 2012 through June 30, 2013	$51,592,980.00	 
	 	 	 
	October 1, 2012 through September 30, 2013	$57,355,881.00	 
	 	 	 
	January 1, 2013 through December 31, 2013	$63,466,220.00	 







 


In addition, maintain
on a consolidated basis with respect to Borrowers net revenue for each Future Testing Period in an amount greater than or equal
to eighty percent (80.0%) of the net revenue projected for such Future Testing Period pursuant to the current Annual Financial
Projection, to be tested as of the first (1st) day of the second (2nd) calendar month immediately following
each such Future Testing Period. Each Borrower agrees that it shall deliver the Annual Fiscal Projection for each calendar year,
commencing with the calendar year commencing January 1, 2014, on or before January 31 of such fiscal year, and that Borrower’s
failure to deliver any Annual Fiscal Projection within three (3) Business Days’ notice from Agent after the date when required
pursuant to this Section 6.1 shall constitute an immediate Event of Default. For purposes of this Section 6.1, the term “Future
Testing Period” means each twelve (12) month period ending on the last day of each calendar quarter, commencing with
the calendar quarter ending March 31, 2014, and the term “Annual Financial Projection” means Borrower’s
annual financial projection with respect to any calendar year, as approved by Borrower’s board of directors, as of the end
of the prior calendar year and delivered to Agent.


 


Section 6.2            
Evidence of Compliance. Borrowers shall furnish to Agent, together with the financial reporting required of Borrowers
in Section 4.1 hereof, evidence (in form and content satisfactory to Agent) of Borrowers’ compliance with the covenants
in Section 6.1 and evidence that no Event of Default specified in Section 6.1 has occurred. Such evidence shall include,
without limitation, (a) a statement and report, on a form approved by Agent, detailing Borrowers’ calculations, and
(b) if requested by Agent, back-up documentation (including, without limitation, invoices, receipts and other evidence of
costs incurred during such quarter as Agent shall reasonably require) evidencing the propriety of the calculations.


 






    	42



    	 



    
 


Article 7
- CONDITIONS


 


Section 7.1            
Conditions to Closing. The obligation of each Lender to make the initial Loans on the Closing Date shall be subject
to the receipt by Agent of each agreement, document and instrument set forth on the closing checklist prepared by Agent or its
counsel, each in form and substance satisfactory to Agent, and such other closing deliverables reasonably requested by Agent and
Lenders, and to the satisfaction of the following conditions precedent, each to the satisfaction of Agent and Lenders and their
respective counsel in their sole discretion:


 


(a)               
evidence of the consummation of the transactions (other than the funding of the Loan and the closing of any acquisition
for which the proceeds of the Loan are purchase money) contemplated by the Operative Documents including, without limitation, the
funding of any and all investments contemplated by the Operative Documents;


 


(b)              
the payment of all fees, expenses and other amounts due and payable under each Financing Document;


 


(c)               
since June 30, 2011, the absence of any material adverse change in any aspect of the business, operations, properties, prospects
or condition (financial or otherwise) of any Credit Party or any seller of any assets or business to be purchased by any Borrower
contemporaneous with the Closing Date, or any event or condition which could reasonably be expected to result in such a material
adverse change; and


 


(d)              
the receipt of the initial Borrowing Base Certificate, prepared as of the Closing Date.


 


Each Lender, by delivering
its signature page to this Agreement, shall be deemed to have acknowledged receipt of, and consented to and approved, each
Financing Document, each additional Operative Document and each other document, agreement and/or instrument required to be approved
by Agent, Required Lenders or Lenders, as applicable, on the Closing Date.


 


Section 7.2            
Conditions to Each Loan. The obligation of the Lenders to make a Loan is subject to the satisfaction of the following
additional conditions:


 


(a)               
in the case of a Revolving Loan Borrowing, receipt by Agent of a Notice of Borrowing (or telephonic notice if permitted
by this Agreement) and updated Borrowing Base Certificate;


 


(b)              
the fact that, immediately after such borrowing and after application of the proceeds thereof or after such issuance, the
Revolving Loan Outstandings will not exceed the Revolving Loan Limit;


 


(c)               
the fact that, immediately before and after such advance or issuance, no Default or Event of Default shall have occurred
and be continuing;


 






    	43



    	 



    
 


(d)              
the fact that the representations and warranties of each Credit Party contained in the Financing Documents shall be true,
correct and complete on and as of the date of such borrowing or issuance, except to the extent that any such representation or
warranty relates to a specific date in which case such representation or warranty shall be true and correct as of such earlier
date; and


 


(e)               
the fact that no adverse change in the condition (financial or otherwise), properties, business, prospects, or operations
of Borrowers or any other Credit Party shall have occurred and be continuing with respect to Borrowers or any Credit Party since
the date of this Agreement.


 


Each giving of a Notice
of Borrowing hereunder and each acceptance by any Borrower of the proceeds of any Loan made hereunder shall be deemed to be (y) a
representation and warranty by each Borrower on the date of such notice or acceptance as to the facts specified in this Section,
and (z) a restatement by each Borrower that each and every one of the representations made by it in any of the Financing Documents
is true and correct as of such date (except to the extent that such representations and warranties expressly relate solely to an
earlier date).


 


Section 7.3            
Searches. Before the Closing Date, and thereafter (as and when determined by Agent in its discretion), Agent
shall have the right to perform, all at Borrowers’ expense, the searches described in clauses (a), (b), and (c) below against
Borrowers and any other Credit Party, the results of which are to be consistent with Borrowers’ representations and warranties
under this Agreement and the satisfactory results of which shall be a condition precedent to all advances of Loan proceeds: (a) UCC
searches with the Secretary of State of the jurisdiction in which the applicable Person is organized; (b) judgment, pending
litigation, federal tax lien, personal property tax lien, and corporate and partnership tax lien searches, in each jurisdiction
searched under clause (a) above; and (c) searches of applicable corporate, limited liability company, partnership and related
records to confirm the continued existence, organization and good standing of the applicable Person and the exact legal name under
which such Person is organized.


 


Section 7.4            
Post-Closing Requirements. Borrowers shall complete each of the post-closing obligations and/or provide to Agent
each of the documents, instruments, agreements and information listed on Schedule 7.4 attached hereto on or before
the date set forth for each such item thereon, each of which shall be completed or provided in form and substance satisfactory
to Agent.


 


Article 8
– [RESERVED]


 


Article 9
- SECURITY AGREEMENT


 


Section 9.1            
Generally. As security for the payment and performance of the Obligations, and without limiting any other grant
of a Lien and security interest in any Security Document, Borrowers hereby assign and grant to Agent, for the benefit of itself
and Lenders, a continuing first priority Lien on and security interest in, upon, and to the personal property set forth on Schedule 9.1
attached hereto and made a part hereof.


 


Section 9.2            
Representations and Warranties and Covenants Relating to Collateral.


 


(a)               
Schedule 9.2 sets forth (i) each chief executive office and principal place of business of each Borrower
and each of their respective Subsidiaries, and (ii) all of the addresses (including all warehouses) at which any of the Collateral
is located and/or books and records of Borrowers regarding any of the Collateral are kept, which such Schedule 9.2
indicates in each case which Borrower(s) have Collateral and/or books and records located at such address, and, in the case of
any such address not owned by one or more of the Borrowers(s), indicates the nature of such location (e.g., leased business location
operated by Borrower(s), third party warehouse, consignment location, processor location, etc.) and the name and address of the
third party owning and/or operating such location.


 






    	44



    	 



    
 


(b)              
Without limiting the generality of Section 3.2, except as indicated on Schedule 3.19 with respect to any
rights of any Borrower as a licensee under any license of Intellectual Property owned by another Person, and except for the filing
of financing statements under the UCC, to Borrower’s knowledge, no authorization, approval or other action by, and no notice
to or filing with, any Governmental Authority or consent of any other Person is required for (i) the grant by each Borrower
to Agent of the security interests and Liens in the Collateral provided for under this Agreement and the other Security Documents
(if any), or (ii) the exercise by Agent of its rights and remedies with respect to the Collateral provided for under this
Agreement and the other Security Documents or under any applicable Law, including the UCC and neither any such grant of Liens in
favor of Agent or exercise of rights by Agent shall violate or cause a default under any agreement between any Borrower and any
other Person relating to any such collateral, including any license to which a Borrower is a party, whether as licensor or licensee,
with respect to any Intellectual Property, whether owned by such Borrower or any other Person.


 


(c)               
As of the Closing Date, no Borrower has any ownership interest in any Chattel Paper (as defined in Article 9 of the
UCC), letter of credit rights, commercial tort claims, Instruments, documents or investment property (other than equity interests
in any Subsidiaries of such Borrower disclosed on Schedule 3.4) and Borrowers shall give notice to Agent promptly (but
in any event not later than the delivery by Borrowers of the next Compliance Certificate required pursuant to Section 4.1
above) upon the acquisition by any Borrower of any such Chattel Paper, letter of credit rights, commercial tort claims, Instruments,
documents, investment property. No Person other than Agent or (if applicable) any Lender has “control” (as defined
in Article 9 of the UCC) over any Deposit Account, investment property (including Securities Accounts and commodities account),
letter of credit rights or electronic chattel paper in which any Borrower has any interest (except for such control arising by
operation of law in favor of any bank or securities intermediary or commodities intermediary with whom any Deposit Account, Securities
Account or commodities account of Borrowers is maintained).


 


(d)              
Borrowers shall not, and shall not permit any Credit Party to, take any of the following actions or make any of the following
changes unless Borrowers have given at least thirty (30) days prior written notice to Agent of Borrowers’ intention to take
any such action (which such written notice shall include an updated version of any Schedule impacted by such change) and have
executed any and all documents, instruments and agreements and taken any other actions which Agent may request after receiving
such written notice in order to protect and preserve the Liens, rights and remedies of Agent with respect to the Collateral: (i) change
the legal name or organizational identification number of any Borrower as it appears in official filings in the jurisdiction of
its organization, (ii) change the jurisdiction of incorporation or formation of any Borrower or Credit Party or allow any
Borrower or Credit Party to designate any jurisdiction as an additional jurisdiction of incorporation for such Borrower or Credit
Party, or change the type of entity that it is, or (iii) change its chief executive office, principal place of business, or
the location of its records concerning the Collateral or move any Collateral to or place any Collateral on any location that is
not then listed on the Schedules and/or establish any business location at any location that is not then listed on the Schedules.


 


(e)               
Borrowers shall not adjust, settle or compromise the amount or payment of any Account, or release wholly or partly any Account
Debtor, or allow any credit or discount thereon (other than adjustments, settlements, compromises, credits and discounts in the
Ordinary Course of Business, made while no Default exists and in amounts which are not material with respect to the Account and
which, after giving effect thereto, do not cause the Borrowing Base to be less than the Revolving Loan Outstandings) without the
prior written consent of Agent. Without limiting the generality of this Agreement or any other provisions of any of the Financing
Documents relating to the rights of Agent after the occurrence and during the continuance of an Event of Default, Agent shall have
the right at any time after the occurrence and during the continuance of an Event of Default to: (i) exercise the rights of
Borrowers with respect to the obligation of any Account Debtor to make payment or otherwise render performance to Borrowers and
with respect to any property that secures the obligations of any Account Debtor or any other Person obligated on the Collateral,
and (ii) adjust, settle or compromise the amount or payment of such Accounts.


 






    	45



    	 



    
 


Article 10
- EVENTS OF DEFAULT


 


Section 10.1        
Events of Default. For purposes of the Financing Documents, the occurrence of any of the following conditions
and/or events, whether voluntary or involuntary, by operation of law or otherwise, shall constitute an “Event of Default”:


 


(a)               
(i) any Borrower shall fail to pay when due any principal, interest, premium or fee under any Financing Document or
any other amount payable under any Financing Document, (ii) there shall occur any default in the performance of or compliance with
any of the following sections of this Agreement: Section 2.11, Section 4.2(b), Section 4.4(c), Section 4.6, Section 4.11,
Section 4.12, and Article 5, or (iii) there shall occur any default in the performance of or compliance with Section 4.1
and/or Article 6 of this Agreement and Borrower Representative has received written notice from Agent or Required Lenders
of such default;


 


(b)              
any Credit Party defaults in the performance of or compliance with any term contained in this Agreement or in any other
Financing Document, including, without limitation, the Term Loan Documents (other than occurrences described in other provisions
of this Section 10.1 for which a different grace or cure period is specified or for which no grace or cure period is specified
and thereby constitute immediate Events of Default), 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 additional Credit Exposure
shall be made during such cure period).


 


(c)               
any representation, warranty, certification or statement made by any Credit Party or any other Person in any Financing Document
or in any certificate, financial statement or other document delivered pursuant to any Financing Document is incorrect in any respect
(or in any material respect if such representation, warranty, certification or statement is not by its terms already qualified
as to materiality) when made (or deemed made);


 


(d)              
(i) failure of any Credit Party to pay when due or within any applicable grace period any principal, interest or other amount
on Debt (other than the Loans), or the occurrence of any breach, default, condition or event with respect to any Debt (other than
the Loans), if the effect of such failure or occurrence is to cause or to permit the holder or holders of any such Debt, to cause,
Debt or other liabilities having an individual principal amount in excess of $100,000 or having an aggregate principal amount in
excess of $100,000 to become or be declared due prior to its stated maturity, or (ii) the occurrence of any breach or default
under any terms or provisions of any Subordinated Debt Document or under any agreement subordinating the Subordinated Debt to all
or any portion of the Obligations or the occurrence of any event requiring the prepayment of any Subordinated Debt;


 






    	46



    	 



    
 


(e)               
any Credit Party or any Subsidiary of a Borrower shall commence a voluntary case or other proceeding seeking liquidation,
reorganization or other relief with respect to itself or its debts under any bankruptcy, insolvency or other similar law now or
hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of it or
any substantial part of its property, or shall consent to any such relief or to the appointment of or taking possession by any
such official in an involuntary case or other proceeding commenced against it, or shall make a general assignment for the benefit
of creditors, or shall fail generally to pay its debts as they become due, or shall take any corporate action to authorize any
of the foregoing;


 


(f)               
an involuntary case or other proceeding shall be commenced against any Credit Party or any Subsidiary of a Borrower seeking
liquidation, reorganization or other relief with respect to it or its debts under any bankruptcy, insolvency or other similar law
now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of
it or any substantial part of its property, and such involuntary case or other proceeding shall remain undismissed and unstayed
for a period of thirty (30) days; or an order for relief shall be entered against any Credit Party or any Subsidiary of a Borrower
under applicable federal bankruptcy, insolvency or other similar law in respect of (i) bankruptcy, liquidation, winding-up,
dissolution or suspension of general operations, (ii) composition, rescheduling, reorganization, arrangement or readjustment
of, or other relief from, or stay of proceedings to enforce, some or all of the debts or obligations, or (iii) possession,
foreclosure, seizure or retention, sale or other disposition of, or other proceedings to enforce security over, all or any substantial
part of the assets of such Credit Party or Subsidiary;


 


(g)               
(i) institution of any steps by any Person to terminate a Pension Plan if as a result of such termination any Credit
Party or any member of the Controlled Group could be required to make a contribution to such Pension Plan, or could incur a liability
or obligation to such Pension Plan, in excess of $25,000, (ii) a contribution failure occurs with respect to any Pension Plan
sufficient to give rise to a Lien under Section 302(f) of ERISA, or (iii) there shall occur any withdrawal or partial
withdrawal from a Multiemployer Plan and the withdrawal liability (without unaccrued interest) to Multiemployer Plans as a result
of such withdrawal (including any outstanding withdrawal liability that any Credit Party or any member of the Controlled Group
have incurred on the date of such withdrawal) exceeds $25,000;


 


(h)              
one or more judgments or orders for the payment of money (not paid or fully covered by insurance maintained in accordance
with the requirements of this Agreement and as to which the relevant insurance company has acknowledged coverage) aggregating in
excess of $100,000 shall be rendered against any or all Credit Parties and either (i) enforcement proceedings shall have been
commenced by any creditor upon any such judgments or orders, or (ii) there shall be any period of ten (10) consecutive days
during which a stay of enforcement of any such judgments or orders, by reason of a pending appeal, bond or otherwise, shall not
be in effect;


 


(i)                
any Lien created by any of the Security Documents shall at any time fail to constitute a valid and perfected Lien on all
of the Collateral purported to be encumbered thereby, subject to no prior or equal Lien except Permitted Liens, or any Credit Party
shall so assert;


 


(j)                
the institution by any Governmental Authority of criminal proceedings against any Credit Party;


 


(k)              
a default or event of default occurs under any Guarantee of any portion of the Obligations;


 






    	47



    	 



    
 


(l)                
any Borrower makes any payment on account of any Debt that has been subordinated to any of the Obligations, other than payments
specifically permitted by the terms of such subordination;


 


(m)            
if any Borrower is or becomes an entity whose equity is registered with the SEC, and/or is publicly traded on and/or registered
with a public securities exchange, such Borrower’s equity fails to remain registered with the SEC in good standing, and/or
such equity fails to remain publicly traded on and registered with a public securities exchange;


 


(n)              
the occurrence of any fact, event or circumstance that could reasonably be expected to result in a Material Adverse Effect,
if such default shall have continued unremedied for a period of ten (10) days after written notice from Agent;


 


(o)              
Agent determines, based on information available to it and in its reasonable judgment, that there is a reasonable likelihood
that Borrowers shall fail to comply with one or more financial covenants in Article 6 during the next succeeding financial
reporting period;


 


(p)              
there shall occur any default or event of default under the Affiliated Financing Documents;


 


(q)              
(i) the institution of any proceeding by the DEA, FDA or similar Governmental Authority to order the withdrawal of any Product
or Product category from the market or to enjoin Borrower or any representative of Borrower from manufacturing, marketing, selling
or distributing any Product or Product category, (ii) the institution of any action or proceeding by any of the DEA, FDA, or any
other Governmental Authority to revoke, suspend, reject, withdraw, limit, or restrict any Required Permit held by Borrower or any
representative of Borrower, which, in each case, could cause a Material Adverse Effect, (iii) the commencement of any enforcement
action against Borrower by the DEA, FDA or any other Governmental Authority, (iv) (X) the recall of any Products from the market,
or (Y) the voluntary withdrawal of any material Products from the market which could reasonably be expected to cause a Material
Adverse Effect, (v) actions to discontinue the sale of any material Products, or (vi) the occurrence of adverse test results in
connection with a Product which could cause a Material Adverse Effect;


 


(r)                
there shall occur a material adverse change in the financial condition or business prospects of any Borrower, or if Agent
in good faith deems the Lenders insecure as a result of acts or events bearing upon the financial condition of any Borrower or
the repayment of the Notes, which default shall have continued unremedied for a period of ten (10) days after written notice
from Agent; or


 


(s)               
the occurrence and continuance of an Event of Default under any of the Term Loan Documents.


 


Notwithstanding the
foregoing, if a Credit Party fails to comply with any same provision of this Agreement two (2) times in any twelve (12) month
period and Agent has given to Borrower Representative in connection with each such failure any notice to which Borrowers would
be entitled under this Section before such failure could become an Event of Default, then all subsequent failures by a Credit
Party to comply with such provision of this Agreement shall effect an immediate Event of Default (without the expiration of any
applicable cure period) with respect to all subsequent failures by a Credit Party to comply with such provision of this Agreement,
and Agent thereupon may exercise any remedy set forth in this Article 10 without affording Borrowers any opportunity to cure
such Event of Default.


 






    	48



    	 



    
 


All cure periods provided
for in this Section 10.1 shall run concurrently with any cure period provided for in any applicable Financing Documents under
which the default occurred.


 


Section 10.2        
Acceleration and Suspension or Termination of Revolving Loan Commitment. Upon the occurrence and during the continuance
of an Event of Default, Agent may, and shall if requested by Required Lenders, (a) by notice to Borrower Representative suspend
or terminate the Revolving Loan Commitment and the obligations of Agent and the Lenders with respect thereto, in whole or in part
(and, if in part, each Lender’s Revolving Loan Commitment shall be reduced in accordance with its Pro Rata Share), and/or
(b) by notice to Borrower Representative declare all or any portion of the Obligations to be, and the Obligations shall thereupon
become, immediately due and payable, with accrued interest thereon, without presentment, demand, protest or other notice of any
kind, all of which are hereby waived by each Borrower and Borrowers will pay the same; provided, however, that in
the case of any of the Events of Default specified in Section 10.1(e) or 10.1(f) above, without any notice to any Borrower
or any other act by Agent or the Lenders, the Revolving Loan Commitment and the obligations of Agent and the Lenders with respect
thereto shall thereupon immediately and automatically terminate and all of the Obligations shall become immediately and automatically
due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby waived by each Borrower
and Borrowers will pay the same.


 


Section 10.3        
UCC Remedies.


 


(a)               
Upon the occurrence of and during the continuance of an Event of Default under this Agreement or the other Financing Documents,
Agent, in addition to all other rights, options, and remedies granted to Agent under this Agreement or at law or in equity, may
exercise, either directly or through one or more assignees or designees, all rights and remedies granted to it under all Financing
Documents and under the UCC in effect in the applicable jurisdiction(s) and under any other applicable law; including, without
limitation:


 


(i)                
the right to take possession of, send notices regarding, and collect directly the Collateral, with or without judicial process;


 


(ii)              
the right to (by its own means or with judicial assistance) enter any of Borrowers’ premises and take possession of
the Collateral, or render it unusable, or to render it usable or saleable, or dispose of the Collateral on such premises in compliance
with subsection (iii) below and to take possession of Borrowers’ original books and records, to obtain access to Borrowers’
data processing equipment, computer hardware and software relating to the Collateral and to use all of the foregoing and the information
contained therein in any manner Agent deems appropriate, without any liability for rent, storage, utilities, or other sums, and
Borrowers shall not resist or interfere with such action (if Borrowers’ books and records are prepared or maintained by an
accounting service, contractor or other third party agent, Borrowers hereby irrevocably authorize such service, contractor or other
agent, upon notice by Agent to such Person that an Event of Default has occurred and is continuing, to deliver to Agent or its
designees such books and records, and to follow Agent’s instructions with respect to further services to be rendered);


 


(iii)            
the right to require Borrowers at Borrowers’ expense to assemble all or any part of the Collateral and make it available
to Agent at any place designated by Lender;


 


(iv)            
the right to notify postal authorities to change the address for delivery of Borrowers’ mail to an address designated
by Agent and to receive, open and dispose of all mail addressed to any Borrower; and/or


 






    	49



    	 



    
 


(v)              
the right to enforce Borrowers’ rights against Account Debtors and other obligors, including, without limitation,
(i) the right to collect Accounts directly in Agent’s own name (as agent for Lenders) and to charge the collection costs
and expenses, including attorneys’ fees, to Borrowers, and (ii) the right, in the name of Agent or any designee of Agent
or Borrowers, to verify the validity, amount or any other matter relating to any Accounts by mail, telephone, telegraph or otherwise,
including, without limitation, verification of Borrowers’ compliance with applicable Laws. Borrowers shall cooperate fully
with Agent in an effort to facilitate and promptly conclude such verification process. Such verification may include contacts between
Agent and applicable federal, state and local regulatory authorities having jurisdiction over the Borrowers’ affairs, all
of which contacts Borrowers hereby irrevocably authorize.


 


(b)              
Each Borrower agrees that a notice received by it at least ten (10) days before the time of any intended public sale, or
the time after which any private sale or other disposition of the Collateral is to be made, shall be deemed to be reasonable notice
of such sale or other disposition. If permitted by applicable law, any perishable Collateral which threatens to speedily decline
in value or which is sold on a recognized market may be sold immediately by Agent without prior notice to Borrowers. At any sale
or disposition of Collateral, Agent may (to the extent permitted by applicable law) purchase all or any part of the Collateral,
free from any right of redemption by Borrowers, which right is hereby waived and released. Each Borrower covenants and agrees not
to interfere with or impose any obstacle to Agent’s exercise of its rights and remedies with respect to the Collateral. Agent
shall have no obligation to clean-up or otherwise prepare the Collateral for sale. Agent may comply with any applicable state or
federal law requirements in connection with a disposition of the Collateral and compliance will not be considered to adversely
affect the commercial reasonableness of any sale of the Collateral. Agent may sell the Collateral without giving any warranties
as to the Collateral. Agent may specifically disclaim any warranties of title or the like. This procedure will not be considered
to adversely affect the commercial reasonableness of any sale of the Collateral. If Agent sells any of the Collateral upon credit,
Borrowers will be credited only with payments actually made by the purchaser, received by Agent and applied to the indebtedness
of the purchaser. In the event the purchaser fails to pay for the Collateral, Agent may resell the Collateral and Borrowers shall
be credited with the proceeds of the sale. Borrowers shall remain liable for any deficiency if the proceeds of any sale or disposition
of the Collateral are insufficient to pay all Obligations.


 


(c)               
Without restricting the generality of the foregoing and for the purposes aforesaid, each Borrower hereby appoints and constitutes
Agent its lawful attorney-in-fact with full power of substitution in the Collateral, upon the occurrence and during the continuance
of an Event of Default, to (i) use unadvanced funds remaining under this Agreement or which may be reserved, escrowed or set aside
for any purposes hereunder at any time, or to advance funds in excess of the face amount of the Notes, (ii) pay, settle or compromise
all existing bills and claims, which may be Liens or security interests, or to avoid such bills and claims becoming Liens against
the Collateral, (iii) execute all applications and certificates in the name of such Borrower and to prosecute and defend all actions
or proceedings in connection with the Collateral, and (iv) do any and every act which such Borrower might do in its own behalf;
it being understood and agreed that this power of attorney in this subsection (c) shall be a power coupled with an interest and
cannot be revoked.


 


(d)              
Agent and each Lender is hereby granted a non-exclusive, royalty-free license or other right to use, without charge, Borrowers’
labels, mask works, rights of use of any name, any other Intellectual Property and advertising matter, and any similar property
as it pertains to the Collateral, in completing production of, advertising for sale, and selling any Collateral and, in connection
with Agent’s exercise of its rights under this Article, Borrowers’ rights under all licenses (whether as licensor or
licensee) and all franchise agreements inure to Agent’s and each Lender’s benefit.


 






    	50



    	 



    
 





Section 10.4        
[Reserved]


 


Section 10.5        
Default Rate of Interest. At the election of Agent or Required Lenders, after the occurrence of an Event of Default
and for so long as it continues, the Loans and other Obligations shall bear interest at rates that are five percent (5.0%) per
annum in excess of the rates otherwise payable under this Agreement.


 


Section 10.6        
Setoff Rights. During the continuance of any Event of Default, each Lender is hereby authorized by each Borrower
at any time or from time to time, with reasonably prompt subsequent notice to such Borrower (any prior or contemporaneous notice
being hereby expressly waived) to set off and to appropriate and to apply any and all (a) balances held by such Lender or
any of such Lender’s Affiliates at any of its offices for the account of such Borrower or any of its Subsidiaries (regardless
of whether such balances are then due to such Borrower or its Subsidiaries), and (b) other property at any time held or owing
by such Lender to or for the credit or for the account of such Borrower or any of its Subsidiaries, against and on account of any
of the Obligations; except that no Lender shall exercise any such right without the prior written consent of Agent. Any Lender
exercising a right to set off shall purchase for cash (and the other Lenders shall sell) interests in each of such other Lender’s
Pro Rata Share of the Obligations as would be necessary to cause all Lenders to share the amount so set off with each other Lender
in accordance with their respective Pro Rata Share of the Obligations. Each Borrower agrees, to the fullest extent permitted by
law, that any Lender and any of such Lender’s Affiliates may exercise its right to set off with respect to the Obligations
as provided in this Section 10.6.


 


Section 10.7        
Application of Proceeds.


 


(a)               
Notwithstanding anything to the contrary contained in this Agreement, upon the occurrence and during the continuance of
an Event of Default, each Borrower irrevocably waives the right to direct the application of any and all payments at any time or
times thereafter received by Agent from or on behalf of such Borrower or any Guarantor of all or any part of the Obligations, and,
as between Borrowers on the one hand and Agent and Lenders on the other, Agent shall have the continuing and exclusive right to
apply and to reapply any and all payments received against the Obligations in such manner as Agent may deem advisable notwithstanding
any previous application by Agent.


 


(b)              
Following the occurrence and continuance of an Event of Default, but absent the occurrence and continuance of an Acceleration
Event, Agent shall apply any and all payments received by Agent in respect of the Obligations, and any and all proceeds of Collateral
received by Agent, in such order as Agent may from time to time elect.


 


(c)               
Notwithstanding anything to the contrary contained in this Agreement, if an Acceleration Event shall have occurred, and
so long as it continues, Agent shall apply any and all payments received by Agent in respect of the Obligations, and any and all
proceeds of Collateral received by Agent, in the following order: first, to all fees, costs, indemnities, liabilities,
obligations and expenses incurred by or owing to Agent with respect to this Agreement, the other Financing Documents or the Collateral;
second, to all fees, costs, indemnities, liabilities, obligations and expenses incurred by or owing to any Lender
with respect to this Agreement, the other Financing Documents or the Collateral; third, to accrued and unpaid interest
on the Obligations (including any interest which, but for the provisions of the Bankruptcy Code, would have accrued on such amounts);
fourth, to the principal amount of the Obligations outstanding; and fifth to any other indebtedness
or obligations of Borrowers owing to Agent or any Lender under the Financing Documents. Any balance remaining shall be delivered
to Borrowers or to whomever may be lawfully entitled to receive such balance or as a court of competent jurisdiction may direct.
In carrying out the foregoing, (y) amounts received shall be applied in the numerical order provided until exhausted prior
to the application to the next succeeding category, and (z) each of the Persons entitled to receive a payment in any particular
category shall receive an amount equal to its Pro Rata Share of amounts available to be applied pursuant thereto for such category.


 






    	51



    	 



    
 


Section 10.8        
Waivers.


 


(a)               
Except as otherwise provided for in this Agreement and to the fullest extent permitted by applicable law, each Borrower
waives: (i) presentment, demand and protest, and notice of presentment, dishonor, intent to accelerate, acceleration, protest,
default, nonpayment, maturity, release, compromise, settlement, extension or renewal of any or all Financing Documents, the Notes
or any other notes, commercial paper, accounts, contracts, documents, Instruments, Chattel Paper and Guarantees at any time held
by Lenders on which any Borrower may in any way be liable, and hereby ratifies and confirms whatever Lenders may do in this regard;
(ii) all rights to notice and a hearing prior to Agent’s or any Lender’s taking possession or control of, or to
Agent’s or any Lender’s replevy, attachment or levy upon, any Collateral or any bond or security which might be required
by any court prior to allowing Agent or any Lender to exercise any of its remedies; and (iii) the benefit of all valuation,
appraisal and exemption Laws. Each Borrower acknowledges that it has been advised by counsel of its choices and decisions with
respect to this Agreement, the other Financing Documents and the transactions evidenced hereby and thereby.


 


(b)              
Each Borrower for itself and all its successors and assigns, (i) agrees that its liability shall not be in any manner
affected by any indulgence, extension of time, renewal, waiver, or modification granted or consented to by Lender; (ii) consents
to any indulgences and all extensions of time, renewals, waivers, or modifications that may be granted by Agent or any Lender with
respect to the payment or other provisions of the Financing Documents, and to any substitution, exchange or release of the Collateral,
or any part thereof, with or without substitution, and agrees to the addition or release of any Borrower, endorsers, guarantors,
or sureties, or whether primarily or secondarily liable, without notice to any other Borrower and without affecting its liability
hereunder; (iii) agrees that its liability shall be unconditional and without regard to the liability of any other Borrower,
Agent or any Lender for any tax on the indebtedness; and (iv) to the fullest extent permitted by law, expressly waives the
benefit of any statute or rule of law or equity now provided, or which may hereafter be provided, which would produce a result
contrary to or in conflict with the foregoing.


 


(c)               
To the extent that Agent or any Lender may have acquiesced in any noncompliance with any requirements or conditions precedent
to the closing of the Loans or to any subsequent disbursement of Loan proceeds, such acquiescence shall not be deemed to constitute
a waiver by Agent or any Lender of such requirements with respect to any future disbursements of Loan proceeds and Agent may at
any time after such acquiescence require Borrowers to comply with all such requirements. Any forbearance by Agent or Lender in
exercising any right or remedy under any of the Financing Documents, or otherwise afforded by applicable law, including any failure
to accelerate the maturity date of the Loans, shall not be a waiver of or preclude the exercise of any right or remedy nor shall
it serve as a novation of the Notes or as a reinstatement of the Loans or a waiver of such right of acceleration or the right to
insist upon strict compliance of the terms of the Financing Documents. Agent’s or any Lender’s acceptance of payment
of any sum secured by any of the Financing Documents after the due date of such payment shall not be a waiver of Agent’s
and such Lender’s right to either require prompt payment when due of all other sums so secured or to declare a default for
failure to make prompt payment. The procurement of insurance or the payment of taxes or other Liens or charges by Agent as the
result of an Event of Default shall not be a waiver of Agent’s right to accelerate the maturity of the Loans, nor shall Agent’s
receipt of any condemnation awards, insurance proceeds, or damages under this Agreement operate to cure or waive any Credit Party’s
default in payment of sums secured by any of the Financing Documents.


 






    	52



    	 



    
 


(d)              
Without limiting the generality of anything contained in this Agreement or the other Financing Documents, each Borrower
agrees that if an Event of Default is continuing (i) Agent and Lenders shall not be subject to any “one action”
or “election of remedies” law or rule, and (ii) all Liens and other rights, remedies or privileges provided to
Agent or Lenders shall remain in full force and effect until Agent or Lenders have exhausted all remedies against the Collateral
and any other properties owned by Borrowers and the Financing Documents and other security instruments or agreements securing the
Loans have been foreclosed, sold and/or otherwise realized upon in satisfaction of Borrowers’ obligations under the Financing
Documents.


 


(e)               
Nothing contained herein or in any other Financing Document shall be construed as requiring Agent or any Lender to resort
to any part of the Collateral for the satisfaction of any of Borrowers’ obligations under the Financing Documents in preference
or priority to any other Collateral, and Agent may seek satisfaction out of all of the Collateral or any part thereof, in its absolute
discretion in respect of Borrowers’ obligations under the Financing Documents. In addition, Agent shall have the right from
time to time to partially foreclose upon any Collateral in any manner and for any amounts secured by the Financing Documents then
due and payable as determined by Agent in its sole discretion, including, without limitation, the following circumstances: (i) in
the event any Borrower defaults beyond any applicable grace period in the payment of one or more scheduled payments of principal
and/or interest, Agent may foreclose upon all or any part of the Collateral to recover such delinquent payments, or (ii) in
the event Agent elects to accelerate less than the entire outstanding principal balance of the Loans, Agent may foreclose all or
any part of the Collateral to recover so much of the principal balance of the Loans as Lender may accelerate and such other sums
secured by one or more of the Financing Documents as Agent may elect. Notwithstanding one or more partial foreclosures, any unforeclosed
Collateral shall remain subject to the Financing Documents to secure payment of sums secured by the Financing Documents and not
previously recovered.


 


(f)               
To the fullest extent permitted by law, each Borrower, for itself and its successors and assigns, waives in the event of
foreclosure of any or all of the Collateral any equitable right otherwise available to any Credit Party which would require the
separate sale of any of the Collateral or require Agent or Lenders to exhaust their remedies against any part of the Collateral
before proceeding against any other part of the Collateral; and further in the event of such foreclosure each Borrower does hereby
expressly consent to and authorize, at the option of Agent, the foreclosure and sale either separately or together of each part
of the Collateral.


 


Section 10.9        
Injunctive Relief. The parties acknowledge and agree that, in the event of a breach or threatened breach of any
Credit Party’s obligations under any Financing Documents, Agent and Lenders may have no adequate remedy in money damages
and, accordingly, shall be entitled to an injunction (including, without limitation, a temporary restraining order, preliminary
injunction, writ of attachment, or order compelling an audit) against such breach or threatened breach, including, without limitation,
maintaining any cash management and collection procedure described herein. However, no specification in this Agreement of a specific
legal or equitable remedy shall be construed as a waiver or prohibition against any other legal or equitable remedies in the event
of a breach or threatened breach of any provision of this Agreement. Each Credit Party waives, to the fullest extent permitted
by law, the requirement of the posting of any bond in connection with such injunctive relief. By joining in the Financing Documents
as a Credit Party, each Credit Party specifically joins in this Section as if this Section were a part of each Financing
Document executed by such Credit Party.


 






    	53



    	 



    
 


Section 10.10    
Marshalling; Payments Set Aside. Neither Agent nor any Lender shall be under any obligation to marshal any assets
in payment of any or all of the Obligations. To the extent that Borrower makes any payment or Agent enforces its Liens or Agent
or any Lender exercises its right of set-off, and such payment or the proceeds of such enforcement or set-off is subsequently invalidated,
declared to be fraudulent or preferential, set aside, or required to be repaid by anyone, then to the extent of such recovery,
the Obligations or part thereof originally intended to be satisfied, and all Liens, rights and remedies therefore, shall be revived
and continued in full force and effect as if such payment had not been made or such enforcement or set-off had not occurred.


 


Article 11
- AGENT


 


Section 11.1        
Appointment and Authorization. Each Lender hereby irrevocably appoints and authorizes Agent to enter into each
of the Financing Documents to which it is a party (other than this Agreement) on its behalf and to take such actions as Agent on
its behalf and to exercise such powers under the Financing Documents as are delegated to Agent by the terms thereof, together with
all such powers as are reasonably incidental thereto. Subject to the terms of Section 11.16 and to the terms of the other
Financing Documents, Agent is authorized and empowered to amend, modify, or waive any provisions of this Agreement or the other
Financing Documents on behalf of Lenders. The provisions of this Article 11 are solely for the benefit of Agent and Lenders
and neither any Borrower nor any other Credit Party shall have any rights as a third party beneficiary of any of the provisions
hereof. In performing its functions and duties under this Agreement, Agent shall act solely as agent of Lenders and does not assume
and shall not be deemed to have assumed any obligation toward or relationship of agency or trust with or for any Borrower or any
other Credit Party. Agent may perform any of its duties hereunder, or under the Financing Documents, by or through its agents or
employees.


 


Section 11.2        
Agent and Affiliates. Agent shall have the same rights and powers under the Financing Documents as any other
Lender and may exercise or refrain from exercising the same as though it were not Agent, and Agent and its Affiliates may lend
money to, invest in and generally engage in any kind of business with each Credit Party or Affiliate of any Credit Party as if
it were not Agent hereunder.


 


Section 11.3        
Action by Agent. The duties of Agent shall be mechanical and administrative in nature. Agent shall not have by
reason of this Agreement a fiduciary relationship in respect of any Lender. Nothing in this Agreement or any of the Financing Documents
is intended to or shall be construed to impose upon Agent any obligations in respect of this Agreement or any of the Financing
Documents except as expressly set forth herein or therein.


 


Section 11.4        
Consultation with Experts. Agent may consult with legal counsel, independent public accountants and other experts
selected by it and shall not be liable for any action taken or omitted to be taken by it in good faith in accordance with the advice
of such counsel, accountants or experts.


 


Section 11.5        
Liability of Agent. Neither Agent nor any of its directors, officers, agents or employees shall be liable to
any Lender for any action taken or not taken by it in connection with the Financing Documents, except that Agent shall be liable
with respect to its specific duties set forth hereunder but only to the extent of its own gross negligence or willful misconduct
in the discharge thereof as determined by a final non-appealable judgment of a court of competent jurisdiction. Neither Agent nor
any of its directors, officers, agents or employees shall be responsible for or have any duty to ascertain, inquire into or verify
(a) any statement, warranty or representation made in connection with any Financing Document or any borrowing hereunder; (b) the
performance or observance of any of the covenants or agreements specified in any Financing Document; (c) the satisfaction
of any condition specified in any Financing Document; (d) the validity, effectiveness, sufficiency or genuineness of any Financing
Document, any Lien purported to be created or perfected thereby or any other instrument or writing furnished in connection therewith;
(e) the existence or non-existence of any Default or Event of Default; or (f) the financial condition of any Credit Party.
Agent shall not incur any liability by acting in reliance upon any notice, consent, certificate, statement, or other writing (which
may be a bank wire, telex, facsimile or electronic transmission or similar writing) believed by it to be genuine or to be signed
by the proper party or parties. Agent shall not be liable for any apportionment or distribution of payments made by it in good
faith and if any such apportionment or distribution is subsequently determined to have been made in error the sole recourse of
any Lender to whom payment was due but not made, shall be to recover from other Lenders any payment in excess of the amount to
which they are determined to be entitled (and such other Lenders hereby agree to return to such Lender any such erroneous payments
received by them).


 






    	54



    	 



    
 


Section 11.6        
Indemnification. Each Lender shall, in accordance with its Pro Rata Share, indemnify Agent (to the extent not
reimbursed by Borrowers) upon demand against any cost, expense (including counsel fees and disbursements), claim, demand, action,
loss or liability (except such as result from Agent’s gross negligence or willful misconduct as determined by a final non-appealable
judgment of a court of competent jurisdiction) that Agent may suffer or incur in connection with the Financing Documents or any
action taken or omitted by Agent hereunder or thereunder. If any indemnity furnished to Agent for any purpose shall, in the opinion
of Agent, be insufficient or become impaired, Agent may call for additional indemnity and cease, or not commence, to do the acts
indemnified against even if so directed by Required Lenders until such additional indemnity is furnished.


 


Section 11.7        
Right to Request and Act on Instructions. Agent may at any time request instructions from Lenders with respect
to any actions or approvals which by the terms of this Agreement or of any of the Financing Documents Agent is permitted or desires
to take or to grant, and if such instructions are promptly requested, Agent shall be absolutely entitled to refrain from taking
any action or to withhold any approval and shall not be under any liability whatsoever to any Person for refraining from any action
or withholding any approval under any of the Financing Documents until it shall have received such instructions from Required Lenders
or all or such other portion of the Lenders as shall be prescribed by this Agreement. Without limiting the foregoing, no Lender
shall have any right of action whatsoever against Agent as a result of Agent acting or refraining from acting under this Agreement
or any of the other Financing Documents in accordance with the instructions of Required Lenders (or all or such other portion of
the Lenders as shall be prescribed by this Agreement) and, notwithstanding the instructions of Required Lenders (or such other
applicable portion of the Lenders), Agent shall have no obligation to take any action if it believes, in good faith, that such
action would violate applicable Law or exposes Agent to any liability for which it has not received satisfactory indemnification
in accordance with the provisions of Section 11.6.


 


Section 11.8        
Credit Decision. Each Lender acknowledges that it has, independently and without reliance upon Agent or any other
Lender, and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to
enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon Agent or any other
Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions
in taking or not taking any action under the Financing Documents.


 


Section 11.9        
Collateral Matters. Lenders irrevocably authorize Agent, at its option and in its discretion, to (a) release
any Lien granted to or held by Agent under any Security Document (i) upon termination of the Loan Commitment and payment in
full of all Obligations; or (ii) constituting property sold or disposed of as part of or in connection with any disposition
permitted under any Financing Document (it being understood and agreed that Agent may conclusively rely without further inquiry
on a certificate of a Responsible Officer as to the sale or other disposition of property being made in full compliance with the
provisions of the Financing Documents); and (b) release or subordinate any Lien granted to or held by Agent under any Security
Document constituting personal property described herein (it being understood and agreed that Agent may conclusively rely without
further inquiry on a certificate of a Responsible Officer as to the identification of any personal property described herein).
Upon request by Agent at any time, Lenders will confirm Agent’s authority to release and/or subordinate particular types
or items of Collateral pursuant to this Section 11.9.


 






    	55



    	 



    
 


Section 11.10    
Agency for Perfection. Agent and each Lender hereby appoint each other Lender as agent for the purpose of perfecting
Agent’s security interest in assets which, in accordance with the Uniform Commercial Code in any applicable jurisdiction,
can be perfected by possession or control. Should any Lender (other than Agent) obtain possession or control of any such assets,
such Lender shall notify Agent thereof, and, promptly upon Agent’s request therefor, shall deliver such assets to Agent or
in accordance with Agent’s instructions or transfer control to Agent in accordance with Agent’s instructions. Each
Lender agrees that it will not have any right individually to enforce or seek to enforce any Security Document or to realize upon
any Collateral for the Loan unless instructed to do so by Agent (or consented to by Agent), it being understood and agreed that
such rights and remedies may be exercised only by Agent.


 


Section 11.11    
Notice of Default. Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or
Event of Default except with respect to defaults in the payment of principal, interest and fees required to be paid to Agent for
the account of Lenders, unless Agent shall have received written notice from a Lender or a Borrower referring to this Agreement,
describing such Default or Event of Default and stating that such notice is a “notice of default”. Agent will notify
each Lender of its receipt of any such notice. Agent shall take such action with respect to such Default or Event of Default as
may be requested by Required Lenders (or all or such other portion of the Lenders as shall be prescribed by this Agreement) in
accordance with the terms hereof. Unless and until Agent has received any such request, Agent may (but shall not be obligated to)
take such action, or refrain from taking such action, with respect to such Default or Event of Default as it shall deem advisable
or in the best interests of Lenders.


 


Section 11.12    
Assignment by Agent; Resignation of Agent; Successor Agent.


 


(a)               
Agent may at any time assign its rights, powers, privileges and duties hereunder to (i) another Lender, or (ii) any Person
to whom Agent, in its capacity as a Lender, has assigned (or will assign, in conjunction with such assignment of agency rights
hereunder) 50% or more of its Loan, in each case without the consent of the Lenders or Borrowers. Following any such assignment,
Agent shall give notice to the Lenders and Borrowers. An assignment by Agent pursuant to this subsection (a) shall not be deemed
a resignation by Agent for purposes of subsection (b) below.


 


(b)              
Without limiting the rights of Agent to designate an assignee pursuant to subsection (a) above, Agent may at any time give
notice of its resignation to the Lenders and Borrowers. Upon receipt of any such notice of resignation, Required Lenders shall
have the right to appoint a successor Agent. If no such successor shall have been so appointed by Required Lenders and shall have
accepted such appointment within ten (10) Business Days after the retiring Agent gives notice of its resignation, then the retiring
Agent may on behalf of the Lenders, appoint a successor Agent; provided, however, that if Agent shall notify Borrowers and
the Lenders that no Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance
with such notice from Agent that no Person has accepted such appointment and, from and following delivery of such notice, (i) the
retiring Agent shall be discharged from its duties and obligations hereunder and under the other Financing Documents, and (ii)
all payments, communications and determinations provided to be made by, to or through Agent shall instead be made by or to each
Lender directly, until such time as Required Lenders appoint a successor Agent as provided for above in this paragraph.


 






    	56



    	 



    
 


(c)               
Upon (i) an assignment permitted by subsection (a) above, or (ii) the acceptance of a successor’s appointment as Agent
pursuant to subsection (b) above, such successor shall succeed to and become vested with all of the rights, powers, privileges
and duties of the retiring (or retired) Agent, and the retiring Agent shall be discharged from all of its duties and obligations
hereunder and under the other Financing Documents (if not already discharged therefrom as provided above in this paragraph). The
fees payable by Borrowers to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between
Borrowers and such successor. After the retiring Agent’s resignation hereunder and under the other Financing Documents, the
provisions of this Article and Section 11.12 shall continue in effect for the benefit of such retiring Agent and its
sub-agents in respect of any actions taken or omitted to be taken by any of them while the retiring Agent was acting or was continuing
to act as Agent.


 


Section 11.13    
Payment and Sharing of Payment.


 


(a)               
Revolving Loan Advances, Payments and Settlements; Interest and Fee Payments.


 


(i)                
Agent shall have the right, on behalf of Revolving Lenders to disburse funds to Borrowers for all Revolving Loans requested
or deemed requested by Borrowers pursuant to the terms of this Agreement. Agent shall be conclusively entitled to assume, for purposes
of the preceding sentence, that each Revolving Lender, other than any Non-Funding Revolving Lenders, will fund its Pro Rata Share
of all Revolving Loans requested by Borrowers. Each Revolving Lender shall reimburse Agent on demand, in accordance with the provisions
of the immediately following paragraph, for all funds disbursed on its behalf by Agent pursuant to the first sentence of this clause
(i), or if Agent so requests, each Revolving Lender will remit to Agent its Pro Rata Share of any Revolving Loan before Agent disburses
the same to a Borrower. If Agent elects to require that each Revolving Lender make funds available to Agent, prior to a disbursement
by Agent to a Borrower, Agent shall advise each Revolving Lender by telephone, facsimile or e-mail of the amount of such Revolving
Lender’s Pro Rata Share of the Revolving Loan requested by such Borrower no later than noon (Eastern time) on the date of
funding of such Revolving Loan, and each such Revolving Lender shall pay Agent on such date such Revolving Lender’s Pro Rata
Share of such requested Revolving Loan, in same day funds, by wire transfer to the Payment Account, or such other account as may
be identified by Agent to Revolving Lenders from time to time. If any Lender fails to pay the amount of its Pro Rata Share of any
funds advanced by Agent pursuant to the first sentence of this clause (i) within one (1) Business Day after Agent’s demand,
Agent shall promptly notify Borrower, and Borrowers shall immediately repay such amount to Agent. Any repayment required by Borrowers
pursuant to this Section 11.13 shall be accompanied by accrued interest thereon from and including the date such amount is
made available to a Borrower to but excluding the date of payment at the rate of interest then applicable to Revolving Loans. Nothing
in this Section 11.13 or elsewhere in this Agreement or the other Financing Documents shall be deemed to require Agent to
advance funds on behalf of any Lender or to relieve any Lender from its obligation to fulfill its commitments hereunder or to prejudice
any rights that Agent or any Borrower may have against any Lender as a result of any default by such Lender hereunder.


 






    	57



    	 



    
 


(ii)              
On a Business Day of each week as selected from time to time by Agent, or more frequently (including daily), if Agent so
elects (each such day being a “Settlement Date”), Agent will advise each Revolving Lender by telephone, facsimile
or e-mail of the amount of each such Revolving Lender’s percentage interest of the Revolving Loan balance as of the close
of business of the Business Day immediately preceding the Settlement Date. In the event that payments are necessary to adjust the
amount of such Revolving Lender’s actual percentage interest of the Revolving Loans to such Lender’s required percentage
interest of the Revolving Loan balance as of any Settlement Date, the Revolving Lender from which such payment is due shall pay
Agent, without setoff or discount, to the Payment Account before 1:00 p.m. (Eastern time) on the Business Day following the
Settlement Date the full amount necessary to make such adjustment. Any obligation arising pursuant to the immediately preceding
sentence shall be absolute and unconditional and shall not be affected by any circumstance whatsoever. In the event settlement
shall not have occurred by the date and time specified in the second preceding sentence, interest shall accrue on the unsettled
amount at the rate of interest then applicable to Revolving Loans.


 


(iii)            
On each Settlement Date, Agent shall advise each Revolving Lender by telephone, facsimile or e-mail of the amount of such
Revolving Lender’s percentage interest of principal, interest and fees paid for the benefit of Revolving Lenders with respect
to each applicable Revolving Loan, to the extent of such Revolving Lender’s Revolving Loan Exposure with respect thereto,
and shall make payment to such Revolving Lender before 1:00 p.m. (Eastern time) on the Business Day following the Settlement
Date of such amounts in accordance with wire instructions delivered by such Revolving Lender to Agent, as the same may be modified
from time to time by written notice to Agent; provided, however, that, in the case such Revolving Lender is a Defaulted
Lender, Agent shall be entitled to set off the funding short-fall against that Defaulted Lender’s respective share of all
payments received from any Borrower.


 


(iv)            
On the Closing Date, Agent, on behalf of Lenders, may elect to advance to Borrowers the full amount of the initial Loans
to be made on the Closing Date prior to receiving funds from Lenders, in reliance upon each Lender’s commitment to make its
Pro Rata Share of such Loans to Borrowers in a timely manner on such date. If Agent elects to advance the initial Loans to Borrower
in such manner, Agent shall be entitled to receive all interest that accrues on the Closing Date on each Lender’s Pro Rata
Share of such Loans unless Agent receives such Lender’s Pro Rata Share of such Loans before 3:00 p.m. (Eastern time)
on the Closing Date.


 


(v)              
It is understood that for purposes of advances to Borrowers made pursuant to this Section 11.13, Agent will be using
the funds of Agent, and pending settlement, (A) all funds transferred from the Payment Account to the outstanding Revolving Loans
shall be applied first to advances made by Agent to Borrowers pursuant to this Section 11.13, and (B) all interest accruing
on such advances shall be payable to Agent.


 


(vi)            
The provisions of this Section 11.13(a) shall be deemed to be binding upon Agent and Lenders notwithstanding the occurrence
of any Default or Event of Default, or any insolvency or bankruptcy proceeding pertaining to any Borrower or any other Credit Party.


 


(b)              
[Reserved]


 


(c)               
Return of Payments.


 


(i)                
If Agent pays an amount to a Lender under this Agreement in the belief or expectation that a related payment has been or
will be received by Agent from a Borrower and such related payment is not received by Agent, then Agent will be entitled to recover
such amount from such Lender on demand without setoff, counterclaim or deduction of any kind, together with interest accruing on
a daily basis at the Federal Funds Rate.


 






    	58



    	 



    
 


(ii)              
If Agent determines at any time that any amount received by Agent under this Agreement must be returned to any Borrower
or paid to any other Person pursuant to any insolvency law or otherwise, then, notwithstanding any other term or condition of this
Agreement or any other Financing Document, Agent will not be required to distribute any portion thereof to any Lender. In addition,
each Lender will repay to Agent on demand any portion of such amount that Agent has distributed to such Lender, together with interest
at such rate, if any, as Agent is required to pay to any Borrower or such other Person, without setoff, counterclaim or deduction
of any kind.


 


(d)              
Defaulted Lenders. The failure of any Defaulted Lender to make any payment required by it hereunder shall not relieve
any other Lender of its obligations to make payment, but neither any other Lender nor Agent shall be responsible for the failure
of any Defaulted Lender to make any payment required hereunder. Notwithstanding anything set forth herein to the contrary, a Defaulted
Lender shall not have any voting or consent rights under or with respect to any Financing Document or constitute a “Lender”
(or be included in the calculation of “Required Lenders” hereunder) for any voting or consent rights under or
with respect to any Financing Document.


 


(e)               
Sharing of Payments. If any Lender shall obtain any payment or other recovery (whether voluntary, involuntary, by
application of setoff or otherwise) on account of any Loan (other than pursuant to the terms of Section 2.8(d)) in excess
of its Pro Rata Share of payments entitled pursuant to the other provisions of this Section 11.13, such Lender shall purchase
from the other Lenders such participations in extensions of credit made by such other Lenders (without recourse, representation
or warranty) as shall be necessary to cause such purchasing Lender to share the excess payment or other recovery ratably with each
of them; provided, however, that if all or any portion of the excess payment or other recovery is thereafter required to
be returned or otherwise recovered from such purchasing Lender, such portion of such purchase shall be rescinded and each Lender
which has sold a participation to the purchasing Lender shall repay to the purchasing Lender the purchase price to the ratable
extent of such return or recovery, without interest. Each Borrower agrees that any Lender so purchasing a participation from another
Lender pursuant to this clause (e) may, to the fullest extent permitted by law, exercise all its rights of payment (including
pursuant to Section 10.6) with respect to such participation as fully as if such Lender were the direct creditor of Borrowers
in the amount of such participation). If under any applicable bankruptcy, insolvency or other similar law, any Lender receives
a secured claim in lieu of a setoff to which this clause (e) applies, such Lender shall, to the extent practicable, exercise
its rights in respect of such secured claim in a manner consistent with the rights of the Lenders entitled under this clause (e)
to share in the benefits of any recovery on such secured claim.


 


Section 11.14    
Right to Perform, Preserve and Protect. If any Credit Party fails to perform any obligation hereunder or under
any other Financing Document, Agent itself may, but shall not be obligated to, cause such obligation to be performed at Borrowers’
expense. Agent is further authorized by Borrowers and the Lenders to make expenditures from time to time which Agent, in its reasonable
business judgment, deems necessary or desirable to (a) preserve or protect the business conducted by Borrowers, the Collateral,
or any portion thereof, and/or (b) enhance the likelihood of, or maximize the amount of, repayment of the Loan and other Obligations.
Each Borrower hereby agrees to reimburse Agent on demand for any and all costs, liabilities and obligations incurred by Agent pursuant
to this Section 11.14. Each Lender hereby agrees to indemnify Agent upon demand for any and all costs, liabilities and obligations
incurred by Agent pursuant to this Section 11.14, in accordance with the provisions of Section 11.6.


 






    	59



    	 



    
 


Section 11.15    
Additional Titled Agents. Except for rights and powers, if any, expressly reserved under this Agreement to any
bookrunner, arranger or to any titled agent named on the cover page of this Agreement, other than Agent (collectively, the
“Additional Titled Agents”), and except for obligations, liabilities, duties and responsibilities, if any, expressly
assumed under this Agreement by any Additional Titled Agent, no Additional Titled Agent, in such capacity, has any rights, powers,
liabilities, duties or responsibilities hereunder or under any of the other Financing Documents. Without limiting the foregoing,
no Additional Titled Agent shall have nor be deemed to have a fiduciary relationship with any Lender. At any time that any Lender
serving as an Additional Titled Agent shall have transferred to any other Person (other than any Affiliates) all of its interests
in the Loan, such Lender shall be deemed to have concurrently resigned as such Additional Titled Agent.


 


Section 11.16    
Amendments and Waivers.


 


(a)               
No provision of this Agreement or any other Financing Document may be materially amended, waived or otherwise modified unless
such amendment, waiver or other modification is in writing and is signed or otherwise approved by Borrowers, the Required Lenders
and any other Lender to the extent required under Section 11.16(b).


 


(b)              
In addition to the required signatures under Section 11.16(a), no provision of this Agreement or any other Financing
Document may be amended, waived or otherwise modified unless such amendment, waiver or other modification is in writing and is
signed or otherwise approved by the following Persons:


 


(i)                
if any amendment, waiver or other modification would increase a Lender’s funding obligations in respect of any Loan,
by such Lender; and/or


 


(ii)              
if the rights or duties of Agent are affected thereby, by Agent;


 


provided, however, that, in each
of (i) and (ii) above, no such amendment, waiver or other modification shall, unless signed or otherwise approved in writing
by all the Lenders directly affected thereby, (A) reduce the principal of, rate of interest on or any fees with respect to
any Loan or forgive any principal, interest (other than default interest) or fees (other than late charges) with respect to any
Loan; (B) postpone the date fixed for, or waive, any payment (other than any mandatory prepayment pursuant to Section 2.1(b)(ii))
of principal of any Loan, or of interest on any Loan (other than default interest) or any fees provided for hereunder (other than
late charges) or postpone the date of termination of any commitment of any Lender hereunder; (C) change the definition of
the term Required Lenders or the percentage of Lenders which shall be required for Lenders to take any action hereunder; (D) release
all or substantially all of the Collateral, authorize any Borrower to sell or otherwise dispose of all or substantially all of
the Collateral or release any Guarantor of all or any portion of the Obligations or its Guarantee obligations with respect thereto,
except, in each case with respect to this clause (D), as otherwise may be provided in this Agreement or the other Financing
Documents (including in connection with any disposition permitted hereunder); (E) amend, waive or otherwise modify this Section 11.16(b)
or the definitions of the terms used in this Section 11.16(b) insofar as the definitions affect the substance of this Section 11.16(b);
(F) consent to the assignment, delegation or other transfer by any Credit Party of any of its rights and obligations under
any Financing Document or release any Borrower of its payment obligations under any Financing Document, except, in each case with
respect to this clause (F), pursuant to a merger or consolidation permitted pursuant to this Agreement; or (G) amend any of
the provisions of Section 10.7 or amend any of the definitions Pro Rata Share, Revolving Loan Commitment, Revolving Loan Commitment
Amount, Revolving Loan Commitment Percentage, or that provide for the Lenders to receive their Pro Rata Shares of any fees, payments,
setoffs or proceeds of Collateral hereunder. It is hereby understood and agreed that all Lenders shall be deemed directly affected
by an amendment, waiver or other modification of the type described in the preceding clauses (C), (D), (E), (F) and (G) of
the preceding sentence.


 






    	60



    	 



    
 


Section 11.17    
Assignments and Participations.


 


(a)               
Assignments.


 


(i)                
Any Lender may at any time assign to one or more Eligible Assignees all or any portion of such Lender’s Loan together
with all related obligations of such Lender hereunder. Except as Agent may otherwise agree, the amount of any such assignment (determined
as of the date of the applicable Assignment Agreement or, if a “Trade Date” is specified in such Assignment Agreement,
as of such Trade Date) shall be in a minimum aggregate amount equal to $1,000,000 or, if less, the assignor’s entire interests
in the outstanding Loan; provided, however, that, in connection with simultaneous assignments to two or more related Approved
Funds, such Approved Funds shall be treated as one assignee for purposes of determining compliance with the minimum assignment
size referred to above. Borrowers and Agent shall be entitled to continue to deal solely and directly with such Lender in connection
with the interests so assigned to an Eligible Assignee until Agent shall have received and accepted an effective Assignment Agreement
executed, delivered and fully completed by the applicable parties thereto and a processing fee of $3,500 to be paid by the assigning
Lender; provided, however, that only one processing fee shall be payable in connection with simultaneous assignments to
two or more related Approved Funds.


 


(ii)              
From and after the date on which the conditions described above have been met, (A) such Eligible Assignee shall be
deemed automatically to have become a party hereto and, to the extent of the interests assigned to such Eligible Assignee pursuant
to such Assignment Agreement, shall have the rights and obligations of a Lender hereunder, and (B) the assigning Lender, to
the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment Agreement, shall be released
from its rights and obligations hereunder (other than those that survive termination pursuant to Section 12.1). Upon the request
of the Eligible Assignee (and, as applicable, the assigning Lender) pursuant to an effective Assignment Agreement, each Borrower
shall execute and deliver to Agent for delivery to the Eligible Assignee (and, as applicable, the assigning Lender) Notes in the
aggregate principal amount of the Eligible Assignee’s Loan (and, as applicable, Notes in the principal amount of that portion
of the principal amount of the Loan retained by the assigning Lender). Upon receipt by the assigning Lender of such Note, the assigning
Lender shall return to Borrower any prior Note held by it.


 


(iii)            
Agent, acting solely for this purpose as an agent of Borrower, shall maintain at its offices located in Bethesda, Maryland
a copy of each Assignment Agreement delivered to it and a register for the recordation of the names and addresses of each Lender,
and the commitments of, and principal amount of the Loan owing to, such Lender pursuant to the terms hereof. The entries in such
register shall be conclusive, and Borrower, Agent and Lenders may treat each Person whose name is recorded therein pursuant to
the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. Such register
shall be available for inspection by Borrower and any Lender, at any reasonable time upon reasonable prior notice to Agent.


 


(iv)            
Notwithstanding the foregoing provisions of this Section 11.17(a) or any other provision of this Agreement, any Lender
may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations
of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided, however, that
no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or
assignee for such Lender as a party hereto.


 






    	61



    	 



    
 


(v)              
Notwithstanding the foregoing provisions of this Section 11.17(a) or any other provision of this Agreement, Agent has
the right, but not the obligation, to effectuate assignments of Loan via an electronic settlement system acceptable to Agent as
designated in writing from time to time to the Lenders by Agent (the “Settlement Service”). At any time when
the Agent elects, in its sole discretion, to implement such Settlement Service, each such assignment shall be effected by the assigning
Lender and proposed assignee pursuant to the procedures then in effect under the Settlement Service, which procedures shall be
consistent with the other provisions of this Section 11.17(a). Each assigning Lender and proposed Eligible Assignee shall
comply with the requirements of the Settlement Service in connection with effecting any assignment of Loan pursuant to the Settlement
Service. With the prior written approval of Agent, Agent’s approval of such Eligible Assignee shall be deemed to have been
automatically granted with respect to any transfer effected through the Settlement Service. Assignments and assumptions of the
Loan shall be effected by the provisions otherwise set forth herein until Agent notifies Lenders of the Settlement Service as set
forth herein.


 


(b)              
Participations. Any Lender may at any time, without the consent of, or notice to, any Borrower or Agent, sell to
one or more Persons participating interests in its Loan, commitments or other interests hereunder (any such Person, a “Participant”).
In the event of a sale by a Lender of a participating interest to a Participant, (i) such Lender’s obligations hereunder
shall remain unchanged for all purposes, (ii) Borrowers and Agent shall continue to deal solely and directly with such Lender
in connection with such Lender’s rights and obligations hereunder, and (iii) all amounts payable by each Borrower shall
be determined as if such Lender had not sold such participation and shall be paid directly to such Lender. Each Borrower agrees
that if amounts outstanding under this Agreement are due and payable (as a result of acceleration or otherwise), each Participant
shall be deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement to
the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement; provided,
however, that such right of set-off shall be subject to the obligation of each Participant to share with Lenders, and Lenders
agree to share with each Participant, as provided in Section 11.5.


 


(c)               
Replacement of Lenders. Within thirty (30) days after: (i) receipt by Agent of notice and demand from any
Lender for payment of additional costs as provided in Section 2.8(d), which demand shall not have been revoked, (ii) any
Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant
to Section 2.8(a), (iii) any Lender is a Defaulted Lender, and the circumstances causing such status shall not have been
cured or waived; or (iv) any failure by any Lender to consent to a requested amendment, waiver or modification to any Financing
Document in which Required Lenders have already consented to such amendment, waiver or modification but the consent of each Lender,
or each Lender affected thereby, is required with respect thereto (each relevant Lender in the foregoing clauses (i) through
(iv) being an “Affected Lender”) each of Borrower Representative and Agent may, at its option, notify such Affected
Lender and, in the case of Borrowers’ election, the Agent, of such Person’s intention to obtain, at Borrowers’
expense, a replacement Lender (“Replacement Lender”) for such Lender, which Replacement Lender shall be an Eligible
Assignee and, in the event the Replacement Lender is to replace an Affected Lender described in the preceding clause (iv),
such Replacement Lender consents to the requested amendment, waiver or modification making the replaced Lender an Affected Lender.
In the event Borrowers or Agent, as applicable, obtains a Replacement Lender within ninety (90) days following notice of its
intention to do so, the Affected Lender shall sell, at par, and assign all of its Loan and funding commitments hereunder to such
Replacement Lender in accordance with the procedures set forth in Section 11.17(a); provided, however, that (A) Borrowers
shall have reimbursed such Lender for its increased costs and additional payments for which it is entitled to reimbursement under
Section 2.8(a) or Section 2.8(d), as applicable, of this Agreement through the date of such sale and assignment, and
(B) Borrowers shall pay to Agent the $3,500 processing fee in respect of such assignment. In the event that a replaced Lender
does not execute an Assignment Agreement pursuant to Section 11.17(a) within five (5) Business Days after receipt by
such replaced Lender of notice of replacement pursuant to this Section 11.17(c) and presentation to such replaced Lender of
an Assignment Agreement evidencing an assignment pursuant to this Section 11.17(c), such replaced Lender shall be deemed to
have consented to the terms of such Assignment Agreement, and any such Assignment Agreement executed by Agent, the Replacement
Lender and, to the extent required pursuant to Section 11.17(a), Borrowers, shall be effective for purposes of this Section 11.17(c)
and Section 11.17(a). Upon any such assignment and payment, such replaced Lender shall no longer constitute a “Lender”
for purposes hereof, other than with respect to such rights and obligations that survive termination as set forth in Section 12.1.


 






    	62



    	 



    
 


(d)              
Credit Party Assignments. No Credit Party may assign, delegate or otherwise transfer any of its rights or other obligations
hereunder or under any other Financing Document without the prior written consent of Agent and each Lender.


 


Section 11.18    
Funding and Settlement Provisions Applicable When Non-Funding Lenders Exist. So long as Agent has not waived
the conditions to the funding of Revolving Loans set forth in Section 7.2, any Lender may deliver a notice to Agent stating
that such Lender shall cease making Revolving Loans due to the non-satisfaction of one or more conditions to funding Loans set
forth in Section 7.2, and specifying any such non-satisfied conditions. Any Lender delivering any such notice shall become
a non-funding Lender (a “Non-Funding Lender”) for purposes of this Agreement commencing on the Business Day
following receipt by Agent of such notice, and shall cease to be a Non-Funding Lender on the date on which such Lender has either
revoked the effectiveness of such notice or acknowledged in writing to each of Agent the satisfaction of the condition(s) specified
in such notice, or Required Lenders waive the conditions to the funding of such Loans giving rise to such notice by Non-Funding
Lender. Each Non-Funding Lender shall remain a Lender for purposes of this Agreement to the extent that such Non-Funding Lender
has Revolving Loans Outstanding in excess of zero; provided, however, that during any period of time that any Non-Funding
Lender exists, and notwithstanding any provision to the contrary set forth herein, the following provisions shall apply:


 


(a)               
For purposes of determining the Pro Rata Share of each Revolving Lender under clause (c) of the definition of such term,
each Non-Funding Lender shall be deemed to have a Revolving Loan Commitment Amount as in effect immediately before such Lender
became a Non-Funding Lender.


 


(b)              
Except as provided in clause (a) above, the Revolving Loan Commitment Amount of each Non-Funding Lender shall be deemed
to be zero.


 


(c)               
The Revolving Loan Commitment at any date of determination during such period shall be deemed to be equal to the sum of
(i) the aggregate Revolving Loan Commitment Amounts of all Lenders, other than the Non-Funding Lenders as of such date plus
(ii) the aggregate Revolving Loan Outstandings of all Non-Funding Lenders as of such date.


 


(d)              
[Reserved]


 


(e)               
Agent shall have no right to make or disburse Revolving Loans for the account of any Non-Funding Lender pursuant to Section 11.13,
or to assume that any Non-Funding Lender will fund its Pro Rata Share of any Revolving Loans requested by Borrower during such
period.


 






    	63



    	 



    
 


(f)               
Agent shall have no right to make or disburse Revolving Loans for the account of any Non-Funding Lender pursuant to Section 2.1(b)(i)
to pay interest, fees, expenses and other charges of any Credit Party.


 


(g)               
[Reserved]


 


(h)              
To the extent that Agent applies proceeds of Collateral or other payments received by Agent to repayment of Revolving Loans
pursuant to Section 10.7, such payments and proceeds shall be applied first in respect of Revolving Loans made at the time
any Non-Funding Lenders exist, and second in respect of all other outstanding Revolving Loans.


 


Section 11.19    
Buy-Out Upon Refinancing. MCF shall have the right to purchase from the other Lenders all of their respective
interests in the Loan at par in connection with any refinancing of the Loan upon one or more new economic terms, but which refinancing
is structured as an amendment and restatement of the Loan rather than a payoff of the Loan.


 


Section 11.20    
Definitions. As used in this Article 11, the following terms have the following meanings:


 


“Additional
Titled Agents” has the meaning set forth in Section 11.15.


 


“Affected
Lender” has the meaning set forth in Section 11.17(c).


 


“Approved
Fund” means any (a) investment company, fund, trust, securitization vehicle or conduit that is (or will be) engaged
in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the Ordinary Course
of Business, or (b) any Person (other than a natural person) which temporarily warehouses loans for any Lender or any entity
described in the preceding clause (a) and that, with respect to each of the preceding clauses (a) and (b), is administered
or managed by (i) a Lender, (ii) an Affiliate of a Lender, or (iii) a Person (other than a natural person) or an
Affiliate of a Person (other than a natural person) that administers or manages a Lender.


 


“Assignment
Agreement” means an assignment agreement in form and substance acceptable to Agent.


 


“Defaulted
Lender” means, so long as such failure shall remain in existence and uncured, any Lender which shall have failed to make
any Loan or other credit accommodation, disbursement, settlement or reimbursement required pursuant to the terms of any Financing
Document.


 


“Eligible
Assignee” means (a) a Lender, (b) an Affiliate of a Lender, (c) an Approved Fund, and (d) any other
Person (other than a natural person) approved by Agent; provided, however, that notwithstanding the foregoing, (x) “Eligible
Assignee” shall not include any Borrower or any of a Borrower’s Affiliates, and (y) no proposed assignee intending
to assume all or any portion of the Revolving Loan Commitment shall be an Eligible Assignee unless such proposed assignee either
already holds a portion of such Revolving Loan Commitment, or has been approved as an Eligible Assignee by Agent.


 


“Federal Funds
Rate” means, for any day, the rate of interest per annum (rounded upwards, if necessary, to the nearest whole multiple
of 1/100 of 1%) equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank of New York on the Business
Day next succeeding such day, provided, however, that (a) if such day is not a Business Day, the Federal Funds Rate
for such day shall be such rate on such transactions on the next preceding Business Day, and (b) if no such rate is so published
on such next preceding Business Day, the Federal Funds Rate for such day shall be the average rate quoted to Agent on such day
on such transactions as determined by Agent.


 






    	64



    	 



    
 


“Replacement
Lender” has the meaning set forth in Section 11.17(c).


 


“Settlement
Service” has the meaning set forth in Section 11.17(a)(v).


 


Article 12
- MISCELLANEOUS


 


Section 12.1        
Survival. All agreements, representations and warranties made herein and in every other Financing Document shall
survive the execution and delivery of this Agreement and the other Financing Documents and the other Operative Documents. The provisions
of Section 2.9 and Articles 11 and 12 shall survive the payment of the Obligations (both with respect to any Lender and all
Lenders collectively) and any termination of this Agreement and any judgment with respect to any Obligations, including any final
foreclosure judgment with respect to any Security Document, and no unpaid or unperformed, current or future, Obligations will merge
into any such judgment.


 


Section 12.2        
No Waivers. No failure or delay by Agent or any Lender in exercising any right, power or privilege under any
Financing Document shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further
exercise thereof or the exercise of any other right, power or privilege. The rights and remedies herein and therein provided shall
be cumulative and not exclusive of any rights or remedies provided by law. Any reference in any Financing Document to the “continuing”
nature of any Event of Default shall not be construed as establishing or otherwise indicating that any Borrower or any other Credit
Party has the independent right to cure any such Event of Default, but is rather presented merely for convenience should such Event
of Default be waived in accordance with the terms of the applicable Financing Documents.


 


Section 12.3        
Notices.


 


(a)               
All notices, requests and other communications to any party hereunder shall be in writing (including prepaid overnight courier,
facsimile transmission or similar writing) and shall be given to such party at its address, facsimile number or e-mail address
set forth on the signature pages hereof (or, in the case of any such Lender who becomes a Lender after the date hereof, in an assignment
agreement or in a notice delivered to Borrower Representative and Agent by the assignee Lender forthwith upon such assignment)
or at such other address, facsimile number or e-mail address as such party may hereafter specify for the purpose by notice to Agent
and Borrower Representative; provided, however, that notices, requests or other communications shall be permitted
by electronic means only in accordance with the provisions of Section 12.3(b) and (c). Each such notice, request or other
communication shall be effective (i) if given by facsimile, when such notice is transmitted to the facsimile number specified
by this Section and the sender receives a confirmation of transmission from the sending facsimile machine, (ii) if given
by mail, prepaid overnight courier or any other means, when received or when receipt is refused at the applicable address specified
by this Section 12.3(a), and (iii) with respect to all reports on Form 10-K, 10-Q and 8-K filed with the SEC, a link to Borrower’s
website at www.bacterin.com and/or the SEC’s website at www.sec.gov granting access to such reports (delivery of such link
granting access being sufficient for notice and delivery of such reports).


 


(b)              
Notices and other communications to the parties hereto may be delivered or furnished by electronic communication (including
e-mail and Internet or intranet websites) pursuant to procedures approved from time to time by Agent, provided, however,
that the foregoing shall not apply to notices sent directly to any Lender if such Lender has notified the Agent that it is incapable
of receiving notices by electronic communication. The Agent or Borrower Representative may, in their discretion, agree to accept
notices and other communications to them hereunder by electronic communications pursuant to procedures approved by it, provided,
however, that approval of such procedures may be limited to particular notices or communications.


 






    	65



    	 



    
 


(c)               
Unless the Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed
received upon the sender’s receipt of an acknowledgment from the intended recipient (such as by the “return receipt
requested” function, as available, return e-mail or other written acknowledgment), and (ii) notices or communications
posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail
address as described in the foregoing clause (i) of notification that such notice or communication is available and identifying
the website address therefor, provided, however, that if any such notice or other communication is not sent or posted
during normal business hours, such notice or communication shall be deemed to have been sent at the opening of business on the
next Business Day.


 


Section 12.4        
Severability. In case any provision of or obligation under this Agreement or any other Financing Document shall
be invalid, illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining provisions
or obligations, or of such provision or obligation in any other jurisdiction, shall not in any way be affected or impaired thereby.


 


Section 12.5        
Headings. Headings and captions used in the Financing Documents (including the Exhibits, Schedules and Annexes
hereto and thereto) are included for convenience of reference only and shall not be given any substantive effect.


 


Section 12.6        
Confidentiality. Agent and each Lender shall hold all non-public information regarding the Credit Parties and
their respective businesses identified as such by Borrowers and obtained by Agent or any Lender pursuant to the requirements hereof
in accordance with such Person’s customary procedures for handling information of such nature, except that disclosure of
such information may be made (a) to their respective agents, employees, Subsidiaries, Affiliates, attorneys, auditors, professional
consultants, rating agencies, insurance industry associations and portfolio management services, (b) to prospective transferees
or purchasers of any interest in the Loans, the Agent or a Lender, provided, however, that any such Persons are bound
by obligations of confidentiality, (c) as required by Law, subpoena, judicial order or similar order and in connection with
any litigation, (d) as may be required in connection with the examination, audit or similar investigation of such Person,
and (e) to a Person that is a trustee, investment advisor, collateral manager, servicer, noteholder or secured party in a
Securitization (as hereinafter defined) in connection with the administration, servicing and reporting on the assets serving as
collateral for such Securitization. For the purposes of this Section, “Securitization” shall mean (i) the pledge
of the Loans as collateral security for loans to a Lender, or (ii) a public or private offering by a Lender or any of its Affiliates
or their respective successors and assigns, of securities which represent an interest in, or which are collateralized, in whole
or in part, by the Loans. Confidential information shall include only such information identified as such at the time provided
to Agent and shall not include information that either: (y) is in the public domain, or becomes part of the public domain
after disclosure to such Person through no fault of such Person, or (z) is disclosed to such Person by a Person other than
a Credit Party, provided, however, Agent does not have actual knowledge that such Person is prohibited from disclosing
such information. The obligations of Agent and Lenders under this Section 12.6 shall supersede and replace the obligations
of Agent and Lenders under any confidentiality agreement in respect of this financing executed and delivered by Agent or any Lender
prior to the date hereof.


 






    	66



    	 



    
 


Section 12.7        
Waiver of Consequential and Other Damages. To the fullest extent permitted by applicable law, no Borrower shall
assert, and each Borrower hereby waives, any claim against any Indemnitee (as defined below), on any theory of liability, for special,
indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as
a result of this Agreement, any other Financing Document or any agreement or instrument contemplated hereby or thereby, the transactions
contemplated hereby or thereby, any Loan or the use of the proceeds thereof. No Indemnitee shall be liable for any damages arising
from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic
or other information transmission systems in connection with this Agreement or the other Financing Documents or the transactions
contemplated hereby or thereby.


 


Section 12.8        
GOVERNING LAW; SUBMISSION TO JURISDICTION. 


 


(a)               
THIS AGREEMENT, EACH NOTE AND EACH OTHER FINANCING DOCUMENT, AND ALL MATTERS RELATING HERETO OR THERETO OR ARISING THEREFROM
(WHETHER SOUNDING IN CONTRACT LAW, TORT LAW OR OTHERWISE), SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF MARYLAND, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.


 


(b)              
EACH BORROWER HEREBY CONSENTS TO THE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED WITHIN THE COUNTY OF MONTGOMERY,
STATE OF MARYLAND AND IRREVOCABLY AGREES THAT, SUBJECT TO AGENT’S ELECTION, ALL ACTIONS OR PROCEEDINGS ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE OTHER FINANCING DOCUMENTS SHALL BE LITIGATED IN SUCH COURTS. EACH BORROWER EXPRESSLY SUBMITS
AND CONSENTS TO THE JURISDICTION OF THE AFORESAID COURTS AND WAIVES ANY DEFENSE OF FORUM NON CONVENIENS. EACH BORROWER HEREBY WAIVES
PERSONAL SERVICE OF ANY AND ALL PROCESS AND AGREES THAT ALL SUCH SERVICE OF PROCESS MAY BE MADE UPON SUCH BORROWER BY CERTIFIED
OR REGISTERED MAIL, RETURN RECEIPT REQUESTED, ADDRESSED TO SUCH BORROWER AT THE ADDRESS SET FORTH IN THIS AGREEMENT AND SERVICE
SO MADE SHALL BE COMPLETE TEN (10) DAYS AFTER THE SAME HAS BEEN POSTED.


 


Section 12.9        
WAIVER OF JURY TRIAL. EACH BORROWER, AGENT AND THE LENDERS HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO
TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THE FINANCING DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED
THEREBY AND AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY. EACH BORROWER, AGENT
AND EACH LENDER ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH HAS RELIED
ON THE WAIVER IN ENTERING INTO THIS AGREEMENT AND THE OTHER FINANCING DOCUMENTS, AND THAT EACH WILL CONTINUE TO RELY ON THIS WAIVER
IN THEIR RELATED FUTURE DEALINGS. EACH BORROWER, AGENT AND EACH LENDER WARRANTS AND REPRESENTS THAT IT HAS HAD THE OPPORTUNITY
OF REVIEWING THIS JURY WAIVER WITH LEGAL COUNSEL, AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS.


 


Section 12.10    
Publication; Advertisement.


 


(a)               
Publication. No Credit Party will directly or indirectly publish, disclose or otherwise use in any public disclosure,
advertising material, promotional material, press release or interview, any reference to the name, logo or any trademark of MCF
or any of its Affiliates or any reference to this Agreement or the financing evidenced hereby, in any case except (i) as required
by Law, subpoena or judicial or similar order, in which case the applicable Credit Party shall give Agent prior written notice
of such publication or other disclosure, or (ii) with MCF’s prior written consent. Agent and Lenders hereby consent
to the disclosure of this Agreement, and summaries and descriptions of this Agreement, in each case to the extent required in Borrower’s
SEC filings.


 






    	67



    	 



    
 


(b)              
Advertisement. Each Lender and each Credit Party hereby authorizes MCF to publish the name of such Lender and Credit
Party, the existence of the financing arrangements referenced under this Agreement, the primary purpose and/or structure of those
arrangements, the amount of credit extended under each facility, the title and role of each party to this Agreement, and the total
amount of the financing evidenced hereby in any “tombstone”, comparable advertisement or press release which MCF elects
to submit for publication. In addition, each Lender and each Credit Party agrees that MCF may provide lending industry trade organizations
with information necessary and customary for inclusion in league table measurements after the Closing Date. With respect to any
of the foregoing, MCF shall provide Borrowers with an opportunity to review and confer with MCF regarding the contents of any such
tombstone, advertisement or information, as applicable, prior to its submission for publication and, following such review period,
MCF may, from time to time, publish such information in any media form desired by MCF, until such time that Borrowers shall have
requested MCF cease any such further publication.


 


Section 12.11    
Counterparts; Integration. This Agreement and the other Financing Documents may be signed in any number of counterparts,
each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument.
Signatures by facsimile or by electronic mail delivery of an electronic version of any executed signature page shall bind
the parties hereto. This Agreement and the other Financing Documents constitute the entire agreement and understanding among the
parties hereto and supersede any and all prior agreements and understandings, oral or written, relating to the subject matter hereof.


 


Section 12.12    
No Strict Construction. The parties hereto have participated jointly in the negotiation and drafting of this
Agreement. In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted
jointly by the parties hereto and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of
the authorship of any provisions of this Agreement.


 


Section 12.13    
Lender Approvals. Unless expressly provided herein to the contrary, any approval, consent, waiver or satisfaction
of Agent or Lenders with respect to any matter that is the subject of this Agreement, the other Financing Documents may be granted
or withheld by Agent and Lenders in their sole and absolute discretion and credit judgment.


 


Section 12.14    
Expenses; Indemnity


 


(a)               
Borrowers hereby agree to promptly pay (i) all costs and expenses of Agent (including, without limitation, the fees,
costs and expenses of counsel to, and independent appraisers and consultants retained by Agent) in connection with the examination,
review, due diligence investigation, documentation, negotiation, closing and syndication of the transactions contemplated by the
Financing Documents, in connection with the performance by Agent of its rights and remedies under the Financing Documents and in
connection with the continued administration of the Financing Documents including (A) any amendments, modifications, consents
and waivers to and/or under any and all Financing Documents, and (B) any periodic public record searches conducted by or at
the request of Agent (including, without limitation, title investigations, UCC searches, fixture filing searches, judgment, pending
litigation and tax lien searches and searches of applicable corporate, limited liability, partnership and related records concerning
the continued existence, organization and good standing of certain Persons); (ii) without limitation of the preceding clause
(i), all costs and expenses of Agent in connection with the creation, perfection and maintenance of Liens pursuant to the Financing
Documents; (iii) without limitation of the preceding clause (i), all costs and expenses of Agent in connection with (A) protecting,
storing, insuring, handling, maintaining or selling any Collateral, (B) any litigation, dispute, suit or proceeding relating
to any Financing Document, and (C) any workout, collection, bankruptcy, insolvency and other enforcement proceedings under
any and all of the Financing Documents; (iv) without limitation of the preceding clause (i), all costs and expenses of Agent
in connection with Agent’s reservation of funds in anticipation of the funding of the initial Loans to be made hereunder;
and (v) all costs and expenses incurred by Lenders in connection with any litigation, dispute, suit or proceeding relating
to any Financing Document and in connection with any workout, collection, bankruptcy, insolvency and other enforcement proceedings
under any and all Financing Documents, whether or not Agent or Lenders are a party thereto. If Agent or any Lender uses
in-house counsel for any of these purposes, Borrowers further agree that the Obligations include reasonable charges for such work
commensurate with the fees that would otherwise be charged by outside legal counsel selected by Agent or such Lender for the work
performed.


 






    	68



    	 



    
 


(b)              
Each Borrower hereby agrees to indemnify, pay and hold harmless Agent and Lenders and the officers, directors, employees,
trustees, agents, investment advisors, collateral managers, servicers, and counsel of Agent and Lenders (collectively called the
“Indemnitees”) from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, claims, costs, expenses and disbursements of any kind or nature whatsoever (including the fees and disbursements of counsel
for such Indemnitee) in connection with any investigative, response, remedial, administrative or judicial matter or proceeding,
whether or not such Indemnitee shall be designated a party thereto and including any such proceeding initiated by or on behalf
of a Credit Party, and the reasonable expenses of investigation by engineers, environmental consultants and similar technical personnel
and any commission, fee or compensation claimed by any broker (other than any broker retained by Agent or Lenders) asserting any
right to payment for the transactions contemplated hereby, which may be imposed on, incurred by or asserted against such Indemnitee
as a result of or in connection with the transactions contemplated hereby or by the other Operative Documents (including (i)(A) as
a direct or indirect result of the presence on or under, or escape, seepage, leakage, spillage, discharge, emission or release
from, any property now or previously owned, leased or operated by Borrower, any Subsidiary or any other Person of any Hazardous
Materials, (B) arising out of or relating to the offsite disposal of any materials generated or present on any such property,
or (C) arising out of or resulting from the environmental condition of any such property or the applicability of any governmental
requirements relating to Hazardous Materials, whether or not occasioned wholly or in part by any condition, accident or event caused
by any act or omission of Borrower or any Subsidiary, and (ii) proposed and actual extensions of credit under this Agreement)
and the use or intended use of the proceeds of the Loans and, except that Borrower shall have no obligation hereunder to an Indemnitee
with respect to any liability resulting from the gross negligence or willful misconduct of such Indemnitee, as determined by a
final non-appealable judgment of a court of competent jurisdiction. To the extent that the undertaking set forth in the immediately
preceding sentence may be unenforceable, Borrower shall contribute the maximum portion which it is permitted to pay and satisfy
under applicable Law to the payment and satisfaction of all such indemnified liabilities incurred by the Indemnitees or any of
them.


 


(c)               
Notwithstanding any contrary provision in this Agreement, the obligations of Borrowers under this Section 12.14 shall
survive the payment in full of the Obligations and the termination of this Agreement. NO INDEMNITEE SHALL BE RESPONSIBLE OR LIABLE
TO THE BORROWERS OR TO ANY OTHER PARTY TO ANY FINANCING DOCUMENT, ANY SUCCESSOR, ASSIGNEE OR THIRD PARTY BENEFICIARY OR ANY OTHER
PERSON ASSERTING CLAIMS DERIVATIVELY THROUGH SUCH PARTY, FOR INDIRECT, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHICH MAY BE
ALLEGED AS A RESULT OF CREDIT HAVING BEEN EXTENDED, SUSPENDED OR TERMINATED UNDER THIS AGREEMENT OR ANY OTHER FINANCING DOCUMENT
OR AS A RESULT OF ANY OTHER TRANSACTION CONTEMPLATED HEREUNDER OR THEREUNDER.


 






    	69



    	 



    
 


Section 12.15    
[Reserved]


 


Section 12.16    
Reinstatement. This Agreement shall remain in full force and effect and continue to be effective should any petition
or other proceeding be filed by or against any Credit Party for liquidation or reorganization, should any Credit Party become insolvent
or make an assignment for the benefit of any creditor or creditors or should an interim receiver, receiver, receiver and manager
or trustee be appointed for all or any significant part of any Credit Party’s assets, and shall continue to be effective
or to be reinstated, as the case may be, if at any time payment and performance of the Obligations, or any part thereof, is, pursuant
to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee of the Obligations,
whether as a fraudulent preference reviewable transaction or otherwise, all as though such payment or performance had not been
made. In the event that any payment, or any part thereof, is rescinded, reduced, restored or returned, the Obligations shall be
reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned.


 


Section 12.17    
Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of Borrowers and Agent
and each Lender and their respective successors and permitted assigns.


 


Section 12.18    
USA PATRIOT Act Notification. Agent (for itself and not on behalf of any Lender) and each Lender hereby notifies
Borrowers that pursuant to the requirements of the USA PATRIOT Act, it is required to obtain, verify and record certain information
and documentation that identifies Borrowers, which information includes the name and address of Borrower and such other information
that will allow Agent or such Lender, as applicable, to identify Borrowers in accordance with the USA PATRIOT Act.


 


 


 


[SIGNATURES APPEAR ON FOLLOWING PAGE(S)]


 






    	70



    	 



    
 




IN WITNESS WHEREOF,
intending to be legally bound, and intending that this Agreement constitute an agreement executed under seal, each of the parties
have caused this Agreement to be executed under seal the day and year first above mentioned.


 


 


	
        BORROWERS:

         

         

         
	
        BACTERIN INTERNATIONAL HOLDINGS, INC., 

a Delaware corporation

        

        

         

        By: /s/ John P. Gandolfo                                       
(SEAL)

Name: John P. Gandolfo

Title: CFO

         

         

        BACTERIN INTERNATIONAL, INC., 

a Nevada corporation

        

        

         

        By: /s/ John P. Gandolfo                                       
(SEAL)

        Name: John P. Gandolfo

        Title: CFO

         

	 	
        Address:

         

        Bacterin International Holdings, Inc.

        664 Cruiser Lane

        Belgrade, Montana 59714

        Attention: John Gandolfo, CFO

        E-Mail: jgandolfo@bacterin.com



 


 






    	[Signature Page - Revolving Credit and Security Agreement]



    	 



    
 




	AGENT:	
        MIDCAP FINANCIAL, LLC, as Agent

         

        By: /s/ Brett Robinson                         

        Name: Brett Robinson

        Title: Managing Director

         

	 	
        Address:

         

        7255 Woodmont Avenue, Suite 200

        Bethesda, Maryland 20814

        Attn: Account Manager for Bacterin revolver transaction

        Facsimile: 301-941-1450

         

         

	 	
        Payment Account Designation:

         

        Wachovia Bank (McLean, VA)

        ABA #: 121-000-248

        Account Name: MidCap Funding IV, LLC - Collections

        Account #: 2000036282803

        Attention: Bacterin revolver transaction

         

         

         




 






    	[Signature Page - Revolving Credit and Security Agreement]



    	 



    
 


	LENDER:	
        MIDCAP FINANCIAL, LLC, as Lender

         

        By: /s/ Brett Robinson                         


Name:
Brett Robinson

Title: Managing Director

         

	 	
        Address:

         

        7255 Woodmont Avenue, Suite 200

        Bethesda, Maryland 20814

        Attn: Account Manager for Bacterin revolver transaction

        Facsimile: 301-941-1450

         



 


	 	
        Payment Account Designation:

         

        Wachovia Bank (McLean, VA)

        ABA #: 121-000-248

        Account Name: MidCap Funding IV, LLC - Collections

        Account #: 2000036282803

        Attention: Bacterin revolver transaction

         

         

         




 






    	[Signature Page - Revolving Credit and Security Agreement]



    	 



    
 


	LENDER:	
        SILICON VALLEY BANK, as Lender

         

        By: /s/ Derek Johnson                       


Name:
Derek Johnson

Title: Relationship Manager

         

	 	
        Address:

         

        380 Interlocken Crescent, Suite 600

        Broomfield, Colorado 80021

        Attn: Account Manager for Bacterin revolver transaction

        Facsimile: (303) 469-4934

         



 






    	[Signature Page - Revolving Credit and Security Agreement]



    	 



    
 




ANNEXES,
EXHIBITS AND SCHEDULES


 


 





	ANNEXES	 
	 	 
	Annex A	Commitment Annex
	 	 
	 	 
	EXHIBITS 	 
	 	 
	Exhibit A	Compliance Certificate
	Exhibit B	Notice of Borrowing
	 	 
	 	 
	SCHEDULES	 
	 	 
	Schedule 3.1	Existence, Organizational ID Numbers, Foreign Qualification, Prior Names
	Schedule 3.4	Capitalization
	Schedule 3.6	Litigation
	Schedule 3.17	Material Contracts
	Schedule 3.18	Environmental Compliance
	Schedule 3.19	Intellectual Property
	Schedule 3.23	Subsidiaries
	Schedule 3.24	Products and Required Permits
	Schedule 4.4	Insurance
	Schedule 5.1	Debt; Contingent Obligations
	Schedule 5.2	Liens
	Schedule 5.7	Permitted Investments
	Schedule 5.8	Transactions with Affiliates
	Schedule 5.11	Conduct of Business
	Schedule 5.14	Deposit Accounts and Securities Accounts
	Schedule 7.4	Post-Closing Obligations
	Schedule 9.1	Collateral
	Schedule 9.2	Location of Collateral
	 	 
	 	 







 






    	 



    	 



    





 


Annex A to Credit Agreement (Commitment
Annex)


 


 


	
        Lender

         
	
        Revolving
        Loan 

        Commitment
        Amount

         
	
        Revolving
        Loan 

        Commitment
        Percentage

	
        MidCap
        Financial, LLC

         
	$3,333,333.33	66.67%
	
        Silicon
        Valley Bank

         
	$1,666,666.67	33.33%
	
        TOTAL

         
	$5,000,000.00	100.00%




 






    	 



    	 



    
 


Exhibit A to Credit Agreement
(Form of Compliance Certificate)


 


 


COMPLIANCE
CERTIFICATE


 


This Compliance Certificate
is given by _____________________, a Responsible Officer of Bacterin International, Inc. (“Borrower Representative”),
pursuant to that certain Credit and Security Agreement dated as of April 23, 2012 among the Borrower Representative, Bacterin International
Holdings, Inc., MidCap Financial, LLC, individually as a Lender and as Agent, Silicon Valley Bank, as a Lender, and the financial
institutions or other entities from time to time parties hereto, each as a Lender (as such agreement may have been amended, restated,
supplemented or otherwise modified from time to time, the “Credit Agreement”). Capitalized terms used herein
without definition shall have the meanings set forth in the Credit Agreement.


 


The undersigned Responsible
Officer hereby certifies to Agent and Lenders that:


 


(a)the financial
statements delivered with this certificate in accordance with Section 4.1 of the Credit Agreement fairly present in all material
respects the results of operations and financial condition of Borrowers as of the dates and the accounting period covered by such
financial statements;


 


(b)I have reviewed
the terms of the Credit Agreement and have made, or caused to be made under my supervision, a review in reasonable detail of the
transactions and conditions of Borrowers during the accounting period covered by such financial statements, and such review has
not disclosed the existence during or at the end of such accounting period, and I have no knowledge of the existence as of the
date hereof, of any condition or event that constitutes a Default or an Event of Default, except as set forth in Schedule 1
hereto, which includes a description of the nature and period of existence of such Default or an Event of Default and what action
Borrowers have taken, are undertaking and propose to take with respect thereto;


 


(c)except as noted
on Schedule 2 attached hereto, the Credit Agreement contains a complete and accurate list of all business locations
of Borrowers and all names under which Borrowers currently conduct business, and Schedule 2 specifically notes any
changes in the names under which Borrowers conduct business;


 


(d)except as noted
on Schedule 3 attached hereto, (i) the undersigned has no knowledge of any federal or state tax liens having been filed
against the Borrowers or any Collateral, and (ii) the undersigned has no knowledge of any failure of the Borrowers to make required
payments of withholding or other tax obligations of the Borrowers during the accounting period to which the attached statements
pertain or any subsequent period;


 


(e)except as noted
on Schedule 4 attached hereto, Schedule 5.14 attached to the Credit Agreement contains a complete and accurate
statement of all deposit or investment accounts maintained by Borrowers;


 


(f)except as described
in the Credit Agreement or in Schedule 5 attached hereto, the undersigned has no knowledge of any current (i) pending
or threatened (in writing) litigation in excess of $100,000 against the Borrowers or Guarantors; (ii) proceedings concerning the
business affairs, practices, licensing or reimbursement entitlements of Borrowers; or (iii) default by Borrowers under any Material
Contract;


 






    	 



    	 



    
 


(g)except as noted
on Schedule 6 attached hereto, no Borrower has acquired, by purchase or otherwise, any Chattel Paper, Letter of Credit
Rights, Instruments, Documents or Investment Property that has not previously been reported to Agent on any Schedule 6
to any previous Compliance Certificate delivered by Borrower Representative to Agent;


 


(h)except as noted
on Schedule 7 attached hereto, no Borrower is aware of any commercial tort claim that has not previously been reported
to Agent on any Schedule 7 to any previous Compliance Certificate delivered by Borrower Representative to Agent;


 


(i)except as noted
on Schedule 8 attached hereto, Schedule 3.17 attached to the Credit Agreement contains a complete and accurate
list of all Material Contracts (other than agreements that are disclosed on Forms 10-K, 10-Q and 8-K, as filed with the SEC);


 


(j)except as disclosed
on Schedule 9 attached hereto, Schedule 3.18 attached to the Credit Agreement contains a complete and accurate list
of all disclosures required pursuant to Section 3.18 of the Credit Agreement regarding compliance with Environmental Requirements
and/ Hazardous Materials;


 


(k)except as disclosed
on Schedule 10 attached hereto, Schedule 3.19 attached to the Credit Agreement contains a complete and accurate list
of all disclosures required pursuant to Section 3.19 of the Credit Agreement regarding Borrower’s Material Intellectual Property;


 


(l)except as disclosed
on Schedule 11 attached hereto, Schedule 3.24 attached to the Credit Agreement contains a complete and accurate list
of all disclosures required pursuant to Section 3.24 and Section 4.12 of the Credit Agreement regarding Borrower’s New Products
and/or Required Permits; and


 


(l)Borrowers are
in compliance with the covenants contained in Section 6.1 of the Credit Agreement, as demonstrated by the calculation of Net Revenues
attached. Such calculations and the certifications contained therein are true, correct and complete.


 


The foregoing certifications
and computations are made as of ________________, 201__ (end of month) and as of _____________, 201__.


 


 


 


	 	
        Sincerely,

         

        Bacterin
        International, Inc., 

        as Borrower Representative

         

         

        By:                                                                    


Name:                                                               


Title:                                                                 

         



 






    	 



    	 



    
 




Exhibit B to Credit Agreement
(Form of Notice of Borrowing)


 


 


NOTICE OF
BORROWING


 


This Notice of Borrowing
is given by _____________________, a Responsible Officer of Bacterin International, Inc. (“Borrower Representative”),
pursuant to that certain Credit and Security Agreement dated as of April 23, 2012 among the Borrower Representative, Bacterin International
Holdings, Inc., MidCap Financial, LLC, individually as a Lender and as Agent, Silicon Valley Bank, as a Lender, and the financial
institutions or other entities from time to time parties hereto, each as a Lender (as such agreement may have been amended, restated,
supplemented or otherwise modified from time to time, the “Credit Agreement”). Capitalized terms used herein
without definition shall have the meanings set forth in the Credit Agreement.


 


The undersigned Responsible
Officer hereby gives notice to Agent of Borrower Representative’s request to on _______________, 201__ borrow $_______________
of Revolving Loans. Attached is a Borrowing Base Certificate complying in all respects with the Credit Agreement and confirming
that, after giving effect to the requested advance, the Revolving Loan Outstandings will not exceed the Revolving Loan Limit.


 


The undersigned officer
hereby certifies that, both before and after giving effect to the request above (a) each of the conditions precedent set forth
in Section 7.2 have been satisfied, (b) all of the representations and warranties contained in the Credit Agreement and
the other Financing Documents are true, correct and complete as of the date hereof, except to the extent such representation or
warranty relates to a specific date, in which case such representation or warranty is true, correct and complete as of such earlier
date, and (c) no Default or Event of Default has occurred and is continuing on the date hereof.


 


IN WITNESS WHEREOF,
the undersigned officer has executed and delivered this Notice of Borrowing this ____ day of ___________, 201__.


 


	 	
        Sincerely,

         

        Bacterin
        International, Inc., 

        as Borrower Representative

         

         

        By:                                                                              


Name:                                                                 


Title:                                                                   

         



 






    	 



    	 



    
 




Schedule 7.4 – Post Closing
Requirements


 


Borrowers shall satisfy
and complete each of the following obligations, or provide Agent each of the items listed below, as applicable, on or before the
date indicated below, all to the satisfaction of Agent in its sole and absolute discretion:


 


		1.	On or before May 2, 2012, Borrower shall deliver a fully executed Landlord’s consent for
the Borrower’s leased premises located at 732 Cruiser Lane, Belgrade, Montana 59714.



 


		2.	On or before May 11, 2012, Borrower shall deliver evidence that the assignments in favor of Harborview
Advisors LLC and Venture Lending and Leasing VI, INC. have been terminated.



 


Borrower’s
failure to complete and satisfy any of the above obligations on or before the date indicated above, or Borrower’s failure
to deliver any of the above listed items on or before the date indicated above, shall constitute an immediate an automatic Event
of Default.


 






    	 



    	 



    
 




Schedule 9.1 – Collateral


 


 


The Collateral consists
of all of Borrower’s assets, including without limitation, all of Borrower’s right, title and interest in and to the
following, whether now owned or hereafter created, acquired or arising:


 


		(a)	all goods, Accounts (including health-care insurance receivables), Equipment, Inventory, contract
rights or rights to payment of money, leases, license agreements, franchise agreements, General Intangibles, commercial tort claims,
documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts,
securities accounts, fixtures, letter 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;



 


		(b)	all of Borrowers’ books and records relating to any of the foregoing; and



 


		(c)	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.



 


 


1410547.9