Exhibit 10.1 


 





 


 


Credit
Agreement and Guaranty


 


Dated
as of


 


February 10,
2020


 


among


 


Agile
Therapeutics, Inc.,

as the Borrower,


 


The
Guarantors from Time to Time Party hereto,


 


as
Guarantors


 


The
Lenders from Time to Time Party hereto,


 


as
Lenders


 


and


 


Perceptive
Credit Holdings III, LP


 


and
its successors and assigns party hereto,


 


as
Administrative Agent and as a Lender


 


$35,000,000


 


 








 






     


     


    

 


Table
of Contents


 





	Section	Heading	Page
	 	 	 
	Article I	Definitions	1
	 	 	 
	Section 1.01.	Certain Defined Terms	1
	Section 1.02.	Accounting Terms and Principles	25
	Section 1.03.	Interpretation	26
	Section 1.04.	Divisions	26
	 	 	 
	Article 2	The Commitments	26
	 	 	 
	Section 2.01.	Term Loans	26
	Section 2.02.	Proportionate Shares	28
	Section 2.03.	Fees	28
	Section 2.04.	Notes	28
	Section 2.05.	Use of Proceeds	28
	 	 	 
	Article 3	Payments of Principal and Interest	28
	 	 	 
	Section 3.01.	Repayment	28
	Section 3.02.	Interest	29
	Section 3.03.	Prepayments	30
	 	 	 
	Article 4	Payments, Etc.	32
	 	 	 
	Section 4.01.	Payments	32
	Section 4.02.	Computations	33
	Section 4.03.	Notices	33
	Section 4.04.	Set-Off	34
	 	 	 
	Article 5	Yield Protection, Etc.	34
	 	 	 
	Section 5.01.	Additional Costs	34
	Section 5.02.	Illegality	35
	Section 5.03.	Taxes	35
	Section 5.04.	Delay in Requests	39
	 	 	 
	Article 6	Conditions Precedent	40
	 	 	 
	Section 6.01.	Conditions to Tranche A Term Loan; Closing Date	40
	Section 6.02.	Conditions to Tranche B Term Loan; Tranche B Term Loan Borrowing Date	42
	Section 6.03.	Conditions to Tranche C Term Loan; Tranche C Term Loan Borrowing Date	43
	 	 	 




 






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	Article 7	Representations and Warranties	44
	 	 	 
	Section 7.01.	Power and Authority	44
	Section 7.02.	Authorization; Enforceability	44
	Section 7.03.	Governmental and Other Approvals; No Conflicts	44
	Section 7.04.	Financial Statements; Material Adverse Change	45
	Section 7.05.	Properties	45
	Section 7.06.	No Actions or Proceedings	47
	Section 7.07.	Compliance with Laws and Agreements	47
	Section 7.08.	Taxes	48
	Section 7.09.	Full Disclosure	48
	Section 7.10.	Regulation	49
	Section 7.11.	Solvency	49
	Section 7.12.	Subsidiaries	49
	Section 7.13.	[Intentionally Omitted]	49
	Section 7.14.	Material Agreements	49
	Section 7.15.	Restrictive Agreements	49
	Section 7.16.	Real Property	50
	Section 7.17.	Pension and Other Plans	50
	Section 7.18.	Collateral; Security Interest	50
	Section 7.19.	Regulatory Approvals	50
	Section 7.20.	Capitalization	52
	Section 7.21.	Insurance	52
	Section 7.22.	[Intentionally Omitted]	52
	Section 7.23.	Sanctions Laws	53
	Section 7.24.	Anti-Corruption Laws	53
	Section 7.25.	Anti-Terrorism Laws	53
	 	 	 
	Article 8	Affirmative Covenants and Financial Covenants	53
	 	 	 
	Section 8.01.	Financial Statements and Other Information	53
	Section 8.02.	Notices of Material Events	55
	Section 8.03.	Existence; Maintenance of Properties, Etc	58
	Section 8.04.	Payment of Obligations	58
	Section 8.05.	Insurance	58
	Section 8.06.	Books and Records; Inspection Rights	59
	Section 8.07.	Compliance with Laws	59
	Section 8.08.	Licenses	60
	Section 8.09.	Action under Environmental Laws	60
	Section 8.10.	Use of Proceeds	60
	Section 8.11.	Certain Obligations Respecting Subsidiaries; Further Assurances; Intellectual Property	60
	Section 8.12.	Termination of Non-Permitted Liens	61
	Section 8.13.	Non-Consolidation	62
	Section 8.14.	Anti-Terrorism and Anti-Corruption Laws	62
	Section 8.15.	Minimum Liquidity	62
	Section 8.16.	Minimum Product Revenue	62
	Section 8.17.	Maintenance of Regulatory Approvals, Contracts, Intellectual Property, Etc.	63
	Section 8.18.	Cash Management	63
	Section 8.19.	Milestone	63
	Section 8.20.	Certain Post-Closing Obligations	63




 






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	Article 9	Negative Covenants	64
	 	 	 
	Section 9.01.	Indebtedness	64
	Section 9.02.	Liens	65
	Section 9.03.	Fundamental Changes and Acquisitions	66
	Section 9.04.	Lines of Business	67
	Section 9.05.	Investments	67
	Section 9.06.	Restricted Payments	68
	Section 9.07.	Payments of Indebtedness	69
	Section 9.08.	Change in Fiscal Year	69
	Section 9.09.	Sales of Assets, Etc	69
	Section 9.10.	Transactions with Affiliates	70
	Section 9.11.	Restrictive Agreements	70
	Section 9.12.	Organizational Documents, Material Agreements	70
	Section 9.13.	Operating Leases	71
	Section 9.14.	Sales and Leasebacks	71
	Section 9.15.	Hazardous Material	71
	Section 9.16.	Accounting Changes	71
	Section 9.17.	Compliance with ERISA	71
	Section 9.18.	Deposit Accounts	72
	Section 9.19.	Outbound Licenses	72
	Section 9.20.	Inbound Licenses	72
	 	 	 
	Article 10	Events of Default	72
	 	 	 
	Section 10.01.	Events of Default	72
	Section 10.02.	Remedies	75
	Section 10.03.	Prepayment Premium and Redemption Price	75
	 	 	 
	Article 11	Guarantee	76
	 	 	 
	Section 11.01.	The Guarantee	76
	Section 11.02.	Obligations Unconditional	76
	Section 11.03.	Reinstatement	77
	Section 11.04.	Subrogation	77
	Section 11.05.	Remedies	77
	Section 11.06.	Instrument for the Payment of Money	78
	Section 11.07.	Continuing Guarantee	78
	Section 11.08.	Rights of Contribution	78
	Section 11.09.	General Limitation on Guarantee Obligations	78




 






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	Article 12	Administrative Agent	79
	 	 	 
	Section 12.01.	Appointment	79
	Section 12.02.	Rights as a Lender	79
	Section 12.03.	Exculpatory Provisions	79
	Section 12.04.	Reliance by Administrative Agent	80
	Section 12.05.	Delegation of Duties	81
	Section 12.06.	Resignation of Agent	81
	Section 12.07.	Non-Reliance on Administrative Agent and Other Lenders	82
	Section 12.08.	Administrative Agent May File Proofs of Claim	82
	Section 12.09.	Collateral and Guaranty Matters; Appointment of Collateral Agent	83
	 	 	 
	Article 13	Miscellaneous	84
	 	 	 
	Section 13.01.	No Waiver	84
	Section 13.02.	Notices	84
	Section 13.03.	Expenses, Indemnification, Etc	84
	Section 13.04.	Amendments, Etc	85
	Section 13.05.	Successors and Assigns	86
	Section 13.06.	Survival	89
	Section 13.07.	Captions	89
	Section 13.08.	Counterparts	89
	Section 13.09.	Governing Law	89
	Section 13.10.	Jurisdiction, Service of Process and Venue	90
	Section 13.11.	Waiver of Jury Trial	90
	Section 13.12.	Waiver of Immunity	90
	Section 13.13.	Entire Agreement	90
	Section 13.14.	Severability	91
	Section 13.15.	No Fiduciary Relationship	91
	Section 13.16.	USA Patriot Act	91
	Section 13.17.	Treatment of Certain Information; Confidentiality	91
	Section 13.18.	Releases of Guarantees and Liens	92
	Section 13.19.	Acknowledgement and Consent to Bail-In of EEA Financial Institutions	92




 





	Schedules:	 	 
	 	 	 
	Schedule 1	—	Commitments and Warrant Shares
	Schedule 7.05(b)	—	Obligor Intellectual Property
	Schedule 7.12	—	Subsidiaries
	Schedule 7.14	—	Material Agreements
	Schedule 7.16	—	Real Property
	Schedule 7.19(b)	—	Regulatory Approvals
	Schedule 7.20	—	Capitalization
	Schedule 8.20	—	Post-Closing Obligations
	Schedule 9.01	—	Existing Indebtedness
	Schedule 9.02	—	Existing Liens
	Schedule 9.05	—	Existing Investments
	Schedule 9.10	—	Transactions with Affiliates




 






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	Exhibits:	 	 
	 	 	 
	Exhibit A	—	Form of Guarantee Assumption Agreement
	Exhibit B	—	Form of Note
	Exhibit C	—	Form of U.S. Tax Compliance Certificate
	Exhibit D	—	Form of Compliance Certificate
	Exhibit E	—	Form of Assignment Agreement
	Exhibit F	—	Form of Security Agreement
	Exhibit G	—	Form of Collateral Questionnaire
	Exhibit H	—	Form of Borrowing Notice




 






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Credit
Agreement And Guaranty, dated as of February 10, 2020 (this “Agreement”), among Agile
Therapeutics, Inc., a Delaware corporation (the “Borrower”), certain Guarantors from time to time
parties hereto, Perceptive Credit Holdings III, LP, a Delaware limited partnership
(“Perceptive”), as a lender (together with its successors and assigns party hereto pursuant to Section 13.05,
the “Lenders” and each a “Lender”) and as administrative agent for the Lenders (in such capacity,
together with its successors and assigns, the “Administrative Agent”).


 


Witnesseth:


 


The Borrower has requested
the Lenders to make term loans to the Borrower, and the Lenders are prepared to make such loans on and subject to the terms and
conditions hereof. Accordingly, the parties agree as follows:


 


Article I


 


Definitions


 


Section 1.01.     Certain
Defined Terms. As used herein, the following terms have the following respective meanings:


 


“Accounting
Change” has the meaning set forth in Section 1.02.


 


“Accounting
Change Notice” has the meaning set forth in Section 1.02.


 


“Acquisition”
means any transaction, or any series of related transactions, by which any Person directly or indirectly, by means of a take-over
bid, tender offer, amalgamation, merger, purchase of assets, or similar transaction having the same effect as any of the foregoing,
(a) acquires all or substantially all of the assets of any Person engaged in any business, (b) acquires all or substantially
all of a business line or unit or division of any other Person, (c) acquires control of securities of a Person engaged in
a business representing more than 50% of the ordinary voting power (determined on a fully-diluted basis) for the election of directors
or other governing body if the business affairs of such Person are managed by a board of directors or other governing body, or
(d) acquires control of more than 50% of the ownership interest (determined on a fully-diluted basis) in any Person engaged
in any business that is not managed by a board of directors or other governing body.


 


“Act”
has the meaning set forth in Section 13.16.


 


“Administrative
Agent” has the meaning set forth in the introduction hereto.


 


“Affiliate”
means, with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls
or is Controlled by or is under common Control with the Person specified.


 






    	 	 	 



     


    

 


“Agreement”
has the meaning set forth in the introduction hereto.


 


“Anti-Corruption
Laws” means all laws, rules and regulations of any jurisdiction applicable to the Obligors and their Affiliates
concerning or relating to bribery or corruption, including, without limitation, the Foreign Corrupt Practices Act of 1977, as amended.


 


“Anti-Terrorism
Laws” means any laws or regulations relating to terrorism or money laundering, including, without limitation the Bank
Secrecy Act (31 U.S.C. §§ 5311 et seq.), the Money Laundering Control Act of 1986 (18 U.S.C. §§ 1956
et seq.), the USA Patriot Act and any similar law enacted in the United States after the date of this Agreement.


 


“Applicable
Margin” means 10.25% per annum, as such percentage may be increased by Section 3.02(d).


 


“Approved
Fund” has the meaning set forth in Section 13.05(c).


 


“Asset Sale”
has the meaning set forth in Section 9.09.


 


“Assignment
Agreement” means an assignment and assumption entered into by a Lender and an assignee of such Lender in substantially
the form of Exhibit E.


 


“Bail-In
Action” means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in
respect of any liability of an EEA Financial Institution.


 


“Bail-In
Legislation” means, with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the
European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time
which is described in the EU Bail-In Legislation Schedule.


 


“Bankruptcy
Code” means Title 11 of the United States Code entitled “Bankruptcy”.


 


“Benefit Plan”
means any employee benefit plan as defined in Section 3(3) of ERISA (other than a Multiemployer Plan) to which any Obligor
or Subsidiary thereof incurs or otherwise has any obligation or liability, contingent or otherwise.


 


“Borrower”
has the meaning set forth in the introduction hereto.


 


“Borrowing”
means a borrowing consisting of the Tranche A Term Loan made by the Lenders on the Closing Date, the Tranche B Term Loan made by
the Lenders on the Tranche B Term Loan Borrowing Date, or the Tranche C Term Loan made by the Lenders on the Tranche C Term Loan
Borrowing Date.


 


“Borrowing
Notice” means a notice substantially in the form attached hereto as Exhibit H.


 


“Business
Day” means a day (other than a Saturday or Sunday) on which commercial banks are not authorized or not required to close
in New York City and, when determined in connection with notices and determinations in respect of LIBOR or any Term Loan or
any funding, Interest Period or any payments in respect of the Term Loans, that is also a day on which dealings in dollar
deposits are carried on in the London interbank market.


 






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“Calculation
Date” has the meaning set forth in Section 8.16(a).


 


“Capital Lease
Obligations” means, as to any Person, the obligations of such Person to pay rent or other amounts under a lease of (or
other agreement conveying the right to use) real and/or personal Property which obligations are required to be classified and accounted
for as a capital lease on a balance sheet of such Person under GAAP and, for purposes of this Agreement, the amount of such obligations
shall be the capitalized amount thereof, determined substantially in accordance with GAAP; provided that any obligations
that were not required to be included on the balance sheet of such Person as capital lease obligations when incurred (whether now
outstanding or at any time incurred or entered into) but are subsequently re-characterized as capital lease obligations due
to a change in accounting rules under GAAP after the Closing Date shall for all purposes hereunder not be treated as a Capital
Lease Obligation.


 


“Casualty
Event” means any actual or constructive loss, condemnation, destruction, confiscation, requisition, seizure or forfeiture
of all or any material portion of the assets of the Borrower or any other Obligor, excluding only those assets, individually or
in the aggregate, subject to any such event during any calendar year with a fair market value as of the date thereof equal to or
less than $500,000.


 


“Change of
Control” means (a) any “person” or “group” (within the meaning of Rule 13d-5 of the
Exchange Act as in effect on the date hereof) shall own, directly or indirectly, beneficially or of record, shares representing
more than 35% of the aggregate ordinary voting power represented by the issued and outstanding capital stock of the Borrower, (b) during
any period of twelve (12) consecutive calendar months, the occupation of a majority of the seats (other than vacant seats) on the
board of directors of Borrower by Persons who were neither (i) nominated by the board of directors of Borrower, nor (ii) appointed
by directors on the board of directors on the Closing Date, or (c) Borrower shall cease to directly own, beneficially and
of record, 100% of the issued and outstanding Equity Interests of each Subsidiary.


 


“Claims”
includes claims, litigation, demands, complaints, grievances, actions, applications, suits, causes of action, orders, charges,
indictments, prosecutions, information (brought by a public prosecutor without grand jury indictment) or other similar processes,
assessments or reassessments.


 


“Closing Date”
means the Business Day on which all of the conditions set forth in Section 6.01 have been satisfied or waived by the Lenders
and the Tranche A Term Loan is made.


 


“Closing Fee”
has the meaning set forth in Section 2.03.


 


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


 






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“Collateral”
means any Property in which a Lien is purported to be granted under any of the Security Documents (or all such Property, as the
context may require).


 


“Collateral
Questionnaire” means that certain Collateral Questionnaire and certification by a Responsible Officer of the Borrower
substantially in the form of attached hereto as Exhibit G.


 


“Commitment”
means, with respect to each Lender, such Lender’s Tranche A Term Loan Commitment, Tranche B Term Loan Commitment and Tranche
C Term Loan Commitment, and “Commitments” means all such commitments of all Lenders. The aggregate amount of
the Commitments as of the Closing Date is $35,000,000.


 


“Commodity
Account” has the meaning set forth in the Security Agreement.


 


“Compliance
Certificate” has the meaning set forth in Section 8.01(c).


 


“Connection
Income Taxes” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that
are franchise Taxes or branch profits Taxes.


 


“Contract
Manufacturer” means each third party contract manufacturer involved in the manufacture of a Product.


 


“Contracts”
means any contract, license, instrument, lease, agreement, obligation, promise, undertaking, understanding, arrangement, document,
commitment, entitlement or engagement under which a Person has, or will have, any liability or contingent liability (in each case,
whether written or oral, expressed or implied, and whether in respect of monetary or payment obligations, performance obligations
or otherwise), excluding the Loan Documents.


 


“Control”
means, with respect to any particular Person, the possession by one or more other Persons, directly or indirectly, of the power
to direct or cause the direction of the management or policies of such particular Person, whether through the ability to exercise
voting power, by contract or otherwise. “Controlling” and “Controlled” have meanings correlative
thereto.


 


“Controlled
Account” has the meaning set forth in Section 8.18(a).


 


“Copyrights”
has the meaning set forth in the Security Agreement.


 


“Default”
means any Event of Default and any event that, upon the giving of notice, the lapse of time or both, would constitute an Event
of Default.


 


“Default Rate”
has the meaning set forth in Section 3.02(d).


 


“Deposit Account”
has the meaning set forth in the Security Agreement and relates to such accounts located and/or maintained in the United States
of America.


 






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“Designated
Person” means a person or entity:


 


(a)            listed
in the annex to, or otherwise targeted by the provisions of, the Executive Order (as disclosed by World-Check or another reputable
commercially available database);


 


(b)            named
as a “Specially Designated National and Blocked Person” on the most current list published by OFAC at its official
website or any replacement website or other replacement official publication of such list (as disclosed by World-Check or another
reputable commercially available database); or


 


(c)            with
which the Lenders are prohibited from dealing or otherwise engaging in any transaction by any Economic Sanctions Laws.


 


“Disqualified
Equity Interests” means, with respect to any Person, any Equity Interest of such Person that, by its terms (or by the
terms of any security or other Equity Interest into which it is convertible or for which it is exchangeable upon exercise or otherwise),
or upon the happening of any event or condition (i) matures or is mandatorily redeemable (other than solely for Qualified
Equity Interests), including pursuant to a sinking fund obligation or otherwise, (ii) is redeemable at the option of the holder
thereof (other than solely for Qualified Equity Interests), in whole or in part, (iii) provides for the scheduled payments
of dividends or other distributions in cash or other securities that would constitute Disqualified Equity Interests, or (iv) is
or becomes convertible into or exchangeable for Indebtedness or any other Equity Interests that would constitute Disqualified Equity
Interests, in each case, prior to the date that is one hundred and eighty (180) days after the Stated Maturity Date; provided
that, if such Equity Interests are issued pursuant to any plan for the benefit of directors, officers, employees or consultants
of such Person or by any such plan to such directors, officers, employees or consultants, such Equity Interests shall not constitute
Disqualified Equity Interests solely because they may be required to be repurchased by such Person upon the death, disability,
retirement or termination of employment or service of such director, officer, employee or consultant.


 


“Dollars”
and “$” means lawful money of the United States of America.


 


“Domestic
Subsidiary” means any Subsidiary that is organized under the laws of the United States, any state thereof or the District
of Columbia.


 


“EEA Financial
Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is
subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a
parent of an institution described in clause (a) of this definition, or (c) any financial institution established
in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition
and is subject to consolidated supervision with its parent.


 


“EEA Member
Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.


 






    	 	-5-	 



     


    

 


“EEA Resolution
Authority” means any public administrative authority or any person entrusted with public administrative authority of
any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.


 


“Economic
Sanctions Laws” means:


 


(a)            the
Executive Order, the International Emergency Economic Powers Act (50 U.S.C. §§ 1701 et seq.),
the Trading with the Enemy Act (50 U.S.C. App. §§ 1 et seq.), any other law or regulation promulgated
thereunder from time to time and administered by OFAC and any similar law enacted in the United States after the date of this Agreement;
and


 


(b)            any
other similar applicable law now or hereafter enacted in any other applicable jurisdiction.


 


“Environmental
Law” means any federal, state, provincial or local governmental law, rule, regulation, order, writ, judgment, injunction
or decree relating to pollution or protection of the environment or the treatment, storage, disposal, release, threatened release
or handling of hazardous materials, and all local laws and regulations related to environmental matters and any specific agreements
entered into with any competent authorities which include commitments related to environmental matters.


 


“Equity Interest”
means, with respect to any Person, any and all shares, interests, participations or other equivalents, including membership interests
(however designated, whether voting or nonvoting), of equity of such Person, including, if such Person is a partnership, partnership
interests (whether general or limited) and any other interest or participation that confers on a Person the right to receive a
share of the profits and losses of, or distributions of property of, such partnership, but excluding debt securities convertible
or exchangeable into such equity.


 


“ERISA”
means the United States Employee Retirement Income Security Act of 1974, as amended.


 


“ERISA Affiliate”
means, collectively, any Obligor, Subsidiary thereof, and any Person under common control, or treated as a single employer, with
any Obligor or Subsidiary thereof, within the meaning of Section 414(b) or (c) of the Code (and, for purposes of
Section 302 of ERISA and each “applicable section” under Section 414(t)(2) of the Code, under Section 414(b),
(c), (m) or (o) of the Code).


 






    	 	-6-	 



     


    

  


“ERISA Event”
means (i) a reportable event as defined in Section 4043 of ERISA with respect to a Title IV Plan, excluding, however,
such events as to which the PBGC has waived the requirement that it be notified of the occurrence of such event; (ii)  a
withdrawal by any Obligor or any ERISA Affiliate thereof from a Title IV Plan or the termination of any Title IV Plan
resulting in liability under Sections 4063 or 4064 of ERISA; (iii) the withdrawal of any Obligor or any ERISA Affiliate
thereof in a complete or partial withdrawal (within the meaning of Section 4203 and 4205 of ERISA) from any Multiemployer
Plan if there is any potential liability therefore, or the receipt by any Obligor or any ERISA Affiliate thereof of notice from
any Multiemployer Plan that it is in insolvency pursuant to Section 4241 of ERISA or is in endangered or critical status as
defined in Sections 303, 304 and 305 of ERISA or Sections 430, 431, and 432 of the Code; (iv) the filing of a notice of intent
to terminate, the treatment of a plan amendment as a termination under Section 4041 or 4041A of ERISA, or the commencement
of proceedings by the PBGC to terminate a Title IV Plan or Multiemployer Plan; (v) the imposition of liability on any
Obligor or any ERISA Affiliate thereof pursuant to Sections 4062(e) or 4069 of ERISA or by reason of the application
of Section 4212(c) of ERISA; (vi) the failure by any Obligor or any ERISA Affiliate thereof to make any required
contribution to a Title IV Plan, or the failure to meet the minimum funding standard of Section 412 of the Code with respect
to any Title IV Plan (whether or not waived in accordance with Section 412(c) of the Code) or the failure to make
by its due date a required installment under Section 430 of the Code with respect to any Title IV Plan or the failure
to make any required contribution to a Multiemployer Plan; (vii) the determination by the actuary of any Title IV Plan that
any such Title IV Plan is considered an at-risk plan or a plan in endangered to critical status within the meaning of
Sections 430, 431 and 432 of the Code or Sections 303, 304 and 305 of ERISA; (viii) an event or condition which
could reasonably be expected to constitute grounds under Section 4042 of ERISA for the termination of, or the appointment
of a trustee to administer, any Title IV Plan or Multiemployer Plan; (ix) the imposition of any liability under Title IV
of ERISA, other than PBGC premiums due but not delinquent under Section 4007 of ERISA, upon any Obligor or any ERISA Affiliate
thereof; (x) an application for a funding waiver under Section 303 of ERISA or an extension of any amortization period
pursuant to Section 412 of the Code with respect to any Title IV Plan; (xi) the occurrence of a non exempt prohibited
transaction under Sections 406 or 407 of ERISA for which any Obligor or any Subsidiary thereof could reasonably be expected to
be directly or indirectly liable; (xii)  the imposition of any lien (or the fulfillment of the conditions for the imposition
of any lien) on any of the rights, properties or assets of any Obligor or any ERISA Affiliate thereof, in either case pursuant
to Title IV of ERISA, including Section 302(f) or 303(k) of ERISA or to Section 401(a)(29) or 430(k) of
the Code.


 


“EU Bail-In
Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or
any successor Person), as in effect from time to time.


 


“Event of
Default” has the meaning set forth in Section 10.01.


 


“Excess Funding
Guarantor” has the meaning set forth in Section 11.08.


 


“Excess Payment”
has the meaning set forth in Section 11.08.


 


“Exchange
Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.


 


“Excluded
Accounts” means deposit accounts exclusively used for payroll, payroll taxes and other employee wage and benefit payments
to or for the benefit of the employees of the Borrower and its Subsidiaries and any Segregated Health Care Accounts.


 






    	 	-7-	 



     


    

 


“Excluded
Taxes” means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted
from a payment to a Recipient: (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes and branch
profits Taxes in each case (i) imposed as a result of such Recipient being organized under the laws of, or having its principal
office or, in the case of a Lender, its applicable lending office located in, the jurisdiction imposing such Tax or (ii) that
are Other Connection Taxes, (b) any U.S. federal withholding Taxes that are imposed on amounts payable to Lender to the
extent that the obligation to withhold amounts existed on the date that (i) Lender became a “Lender” under this
Agreement or (ii) Lender changes its lending office, except in each case to the extent Lender is a direct or indirect assignee
of any other Lender that was entitled, at the time the assignment of such other Lender became effective, to receive additional
amounts under Section 5.03 or Lender was entitled to receive additional amounts under Section 5.03 immediately before
it changed its lending office, (c) any Taxes imposed in connection with FATCA, and (d) Taxes attributable to such Recipient’s
failure to comply with Section 5.03(e).


 


“Executive
Order” means the US Executive Order No. 13224 on Blocking Property and Prohibiting Transactions with Persons who
commit, Threaten to Commit, or Support Terrorism.


 


“Expense Deposit”
means a cash deposit in the amount of $50,000 made by the Borrower to an Affiliate of Perceptive Advisors LLC pursuant to the Proposal
Letter for the prepayment of the Lenders’ costs and expenses (payable pursuant to Section 13.03(a) and/or the Proposal
Letter) incurred prior to the Closing Date.


 


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


 


“FD&C
Act” means the U.S. Food, Drug and Cosmetic Act of 1938 (or any successor thereto), as amended from time to time, and
the rules and regulations promulgated thereunder.


 


“FDA”
means the U.S. Food and Drug Administration and any successor entity.


 


“FDA Laws”
means (i) the FD&C Act and its implementing regulations; (ii) all terms and conditions of any approved Product Authorization;
(iii) any applicable state board of pharmacy Laws; (iv) any other applicable Laws of any jurisdiction governing, to the
extent applicable to the Obligors, the research, development and approval, testing, manufacturing, processing, handling, packaging,
labeling, storage, advertising, promotion, marketing, sale and distribution of drugs, devices or “combination products”
(as defined in 21 C.F.R. § 3.2(e)); and (v) all other applicable Laws administered or issued by the FDA.


 


“Federal Health
Care Program” has the meaning specified in Section 1128B(f) of the Social Security Act and includes the programs
commonly known as Medicare, Medicaid, TRICARE and CHAMPVA.


 






    	 	-8-	 



     


    

  


“Financial
Forecast” has the meaning set forth in Section 8.01(h).


 


“Foreign Lender”
means a Lender that is not a U.S. Person.


 


“Foreign Subsidiary”
means (i) any Subsidiary that is not a Domestic Subsidiary, (ii) any Subsidiary substantially all the assets of which
constitute Equity Interests or Equity Interests and debt of Foreign Subsidiaries described in clause (i), and (iii) any Subsidiary
of a Foreign Subsidiary described in clause (i) or (ii).


 


“GAAP”
means generally accepted accounting principles in the United States of America, as in effect from time to time, set forth in the
opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants, in the
statements and pronouncements of the Financial Accounting Standards Board and in such other statements by such other entity as
may be in general use by significant segments of the accounting profession that are applicable to the circumstances as of the date
of determination. Subject to Section 1.02, all references to “GAAP” shall be to GAAP applied consistently with
the principles used in the preparation of the financial statements described in Section 7.04(a).


 


“Governmental
Approval” means any consent, authorization, approval, order, license, franchise, permit, certification, accreditation
or registration that is issued or granted by or from (or pursuant to any act of) any Governmental Authority, including any application
or submission related to any of the foregoing.


 


“Governmental
Authority” means any nation, government, branch of power (whether executive, legislative or judicial), state, municipality
or other political subdivision thereof and any entity exercising executive, legislative, judicial, monetary, regulatory or administrative
functions of or pertaining to government, including without limitation Regulatory Authorities, governmental departments, agencies,
commissions, bureaus, officials, ministers, courts, bodies, boards, tribunals and dispute settlement panels, and other law-,
rule- or regulation-making organizations or entities of any State, territory, county, city or other political subdivision
of the United States or any foreign country.


 


“Guarantee”
of or by any Person (the “guarantor”) means any obligation, contingent or otherwise, of the guarantor guaranteeing
or having the economic effect of guaranteeing any Indebtedness or other obligation of any other Person (the “primary obligor”)
in any manner, whether directly or indirectly, and including any obligation of the guarantor, direct or indirect, (a) to purchase
or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation or to purchase (or to
advance or supply funds for the purchase of) any security for the payment thereof, (b) to purchase or lease property, securities
or services for the purpose of assuring the owner of such Indebtedness or other obligation of the payment thereof, (c) to
maintain working capital, equity capital or any other financial statement condition or liquidity of the primary obligor so as to
enable the primary obligor to pay such Indebtedness or other obligation or (d) as an account party in respect of any letter
of credit or letter of guaranty issued to support such Indebtedness or obligation; provided, that the term Guarantee shall
not include endorsements for collection or deposit in the Ordinary Course of Business.


 






    	 	-9-	 



     


    

 



 


“Guarantee
Assumption Agreement” means a Guarantee Assumption Agreement substantially in the form of Exhibit A by an entity
that, pursuant to Section 8.11(a), is required to become a “Guarantor”.


 





“Guaranteed
Obligations” has the meaning set forth in Section 11.01.


 


“Guarantor”
means, (i) initially, each of the Subsidiaries of the Borrower listed as a Guarantor on the signature pages hereto and
(ii) any other Subsidiary of the Borrower joined as a Guarantor from time to time pursuant to Section 8.11.


 


“Hazardous
Material” means any substance, element, chemical, compound, product, solid, gas, liquid, waste, by-product, pollutant,
contaminant or material which is hazardous or toxic, and includes, without limitation, (a) asbestos, polychlorinated biphenyls
and petroleum (including crude oil or any fraction thereof) and (b) any material classified or regulated as “hazardous”
or “toxic” or words of like import pursuant to an Environmental Law.


 


“Health Care
Compliance Program” has the meaning set forth in Section 8.07(c).


 


“Healthcare
Laws” means, collectively, all Laws applicable to the business of the Borrower or any other Obligor regulating, to the
extent applicable to the Obligors, the manufacturing, sale, distribution, labeling, marketing, promotion, export, or the provision
of and payment for, health care products (including the Products), items and services, including but not limited to (i) all
applicable Laws relating to the privacy or security of consumer information, including but not limited to the Health Insurance
Portability and Accountability Act of 1996 (Pub. L. No. 104-191) (“HIPAA”) and any similar state laws;
(ii) all applicable federal and state fraud and abuse Laws, including but not limited to the federal Anti-Kickback Statute
(42 U.S.C. §1320a-7b(b) and any similar state laws), the federal Physician Self-Referral Prohibition (commonly
referred to as the “Stark Law”) (42 U.S.C. § 1395nn and any similar state laws), the Civil Monetary
Penalties Act (42 U.S.C. §1320a-7a), and the civil False Claims Act (31 U.S.C. §3729 et seq. and any
similar state laws); (iii) all applicable FDA Laws; (iv) all applicable Laws regarding the provision of health care supplies,
items or services to Federal Health Care Program or commercial third-party payor beneficiaries or the billing, coding or submission
of claims to Federal Health Care Programs or commercial third-party payor programs; and (v) all rules and regulations
promulgated under or pursuant to any of the foregoing.


 


“Hedging Agreement”
means any interest rate exchange agreement, foreign currency exchange agreement, commodity price protection agreement or other
interest or currency exchange rate or commodity price hedging arrangement.


 


“IND”
means (x) an Investigational New Drug Application (as defined in the FD&C Act) that is required to be submitted to the
FDA before beginning a clinical trial in human subjects, and (y) any similar application relating to any investigational new
drug or clinical trial required by any country, jurisdiction or Governmental Authority other than the FDA.


 






    	 	-10-	 



     


    

 


“Indebtedness”
of any Person means, without duplication, (i) all obligations of such Person for borrowed money, (ii) all obligations
of such Person evidenced by bonds, debentures, notes, loan agreements or similar instruments, (iii) all obligations of such
Person upon which interest charges are customarily paid, (iv) all obligations of such Person under conditional sale or other
title retention agreements relating to Property acquired by such Person, (v) all obligations of such Person in respect of
the deferred purchase price of Property or services (excluding accounts payable incurred in the Ordinary Course of Business not
overdue by more than one hundred twenty (120) days), (vi) all Indebtedness of others secured by (or for which the holder of
such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on Property owned or acquired by such
Person, whether or not the Indebtedness secured thereby has been assumed, (vii) all Guarantees by such Person of Indebtedness
of others, (viii) all Capital Lease Obligations of such Person, (ix) all obligations, contingent or otherwise, of such
Person as an account party in respect of letters of credit and letters of guaranty, (x) obligations under any Hedging Agreement,
currency swaps, forwards, futures or derivatives transactions, (xi) all obligations, contingent or otherwise, of such Person
in respect of bankers’ acceptances, (xii) all obligations of such Person under license or other agreements containing
a guaranteed minimum payment or purchase by such Person, other than operating leases entered into in the Ordinary Course of Business
and any such license or other agreement for the purchase of goods, software and other intangibles, services or supplies in the
Ordinary Course of Business, (xiii) any Disqualified Equity Interests of such Person, and (xiv) all other obligations
required to be classified as indebtedness of such Person under GAAP. The Indebtedness of any Person shall include the Indebtedness
of any other entity (including any partnership in which such Person is a general partner) to the extent such Person is liable therefor
as a result of such Person’s ownership interest in or other relationship with such entity, except to the extent the terms
of such Indebtedness provide that such Person is not liable therefor.


 





“Indemnified
Party” has the meaning set forth in Section 13.03(b).


 


“Indemnified
Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account
of any Obligation and (b) to the extent not otherwise described in clause (a), Other Taxes.


 


“Information”
has the meaning set forth in Section 13.17.


 


“Insolvency
Proceeding” means (a) any case, action or proceeding before any court or other Governmental Authority relating to
bankruptcy, reorganization, insolvency, liquidation, receivership, dissolution, winding-up or relief of debtors, or (b) any
general assignment for the benefit of creditors, composition, marshaling of assets for creditors, or other, similar arrangement
in respect of any Person’s creditors generally or any substantial portion of such Person’s creditors, in each case
undertaken under U.S. Federal, state or foreign law, including the Bankruptcy Code.


 


“Intellectual
Property” means, with respect to any Person, all of such Person’s rights, title and interest in and to all Patents,
Trademarks and Copyrights, whether registered or not and whether existing under U.S. or non-U.S. Law or jurisdiction, including,
without limitation, all:


 


(a)            applications,
registrations, amendments and extensions relating to such Intellectual Property;


 






    	 	-11-	 



     


    

 


(b)            rights
and privileges arising under any applicable Laws with respect to any Intellectual Property;


 


(c)            rights
to sue for or collect any damages for any past, present or future infringements of any Intellectual Property; and


 


(d)            rights
of the same or similar effect or nature as described above in any jurisdiction corresponding to any Intellectual Property throughout
the world.


 


“Interest
Period” means, (a) initially, the period beginning on (and including) the Closing Date and ending on (and including)
the last day of the calendar month in which the Closing Date occurs, and (b) thereafter, the period beginning on (and including)
the first day of each succeeding calendar month and ending on the earlier of (and including) (x) the last day of such calendar
month and (y) the Maturity Date.


 


“Investment”
means, for any Person: (a) the acquisition (whether for cash, Property, services or securities or otherwise) of Equity Interests,
bonds, notes, debentures, partnership or other ownership interests or other securities of any other Person or any agreement to
make any such acquisition (including any “short sale” or any sale of any securities at a time when such securities
are not owned by the Person entering into such sale); (b) the making of any deposit with, or advance, loan, assumption of
debt or other extension of credit to, any other Person (including the purchase of Property from another Person subject to an understanding
or agreement, contingent or otherwise, to resell such Property to such Person), but excluding any such advance, loan or extension
of credit in the nature of an ordinary course trade receivable having a term not exceeding ninety (90) days arising in connection
with the sale of services, inventory or supplies by such Person in the Ordinary Course of Business; (c) the entering into
of any Guarantee of, or other contingent obligation with respect to, Indebtedness or other liability of any other Person and
(without duplication) any amount committed to be advanced, lent or extended to such Person; (d) entering into any joint venture
or (e) the entering into of any Hedging Agreement. The amount of an Investment will be determined at the time the Investment
is made without giving effect to any subsequent changes in value.


 


“IRS”
means the U.S. Internal Revenue Service or any successor agency, and to the extent relevant, the U.S. Department of the Treasury.


 


“Knowledge”
means the actual knowledge of any Responsible Officer of any Obligor, after a commercially reasonable inquiry into such facts
or matters.


 


“Laws”
means, collectively, all international, foreign, federal, state, provincial, territorial, municipal and local statutes, treaties,
rules, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or
administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and
all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with,
any Governmental Authority.


 


“Lenders”
has the meaning set forth in the introduction hereto.


 






    	 	-12-	 



     


    

 


“LIBOR”
means, for any Interest Period, the rate per annum (rounded upwards if necessary, to the next 1/100%) equal to the London interbank
offered for one-month deposits in Dollars appearing on the appropriate Bloomberg screen or the Dow Jones Markets Telerate Page 3750
as of 11:00 a.m. (London time) two (2) Business Days prior to the commencement of any Interest Period; provided,
that in the event that such rate does not appear on the appropriate Bloomberg screen or the Dow Jones Markets Telerate Page 3750
(or otherwise on the Dow Jones Markets screen) at such time, “LIBOR” shall be determined by reference to such other
comparable publicly available service for displaying the offered rate for deposit in Dollars in the London interbank market as
may be selected by the Majority Lenders; provided, further, that in no event shall LIBOR be less than 1.50%.


 


“Lien”
means any mortgage, lien, pledge, charge or other security interest, or any lease, title retention agreement, mortgage, restriction,
easement, right-of-way, option or adverse claim (of ownership or possession) or other encumbrance of any kind or character
whatsoever or any preferential arrangement that has the practical effect of creating a security interest.


 


“Loan Documents”
means, collectively, this Agreement, the Notes, the Security Documents, any Guarantee Assumption Agreement, each Warrant and any
subordination agreement, intercreditor agreement or other present or future document, instrument, agreement or certificate delivered
to any Lender in connection with this Agreement or any of the other Loan Documents, in each case, as amended, restated, supplemented
or otherwise modified.


 


“Loan Exposure”
means, with respect to any Lender, as of any date of determination, the outstanding principal amount of such Lender’s portion
of the Term Loans; provided, at any time prior to the making of the Term Loans, the Loan Exposure of any Lender shall be
equal to such Lender’s Commitment.


 


“Loss”
means judgments, debts, liabilities, expenses, costs, damages or losses, contingent or otherwise, whether liquidated or unliquidated,
matured or unmatured, disputed or undisputed, contractual, legal or equitable, including loss of value, professional fees, including
fees and disbursements of legal counsel on a full indemnity basis, and all costs incurred in investigating or pursuing any Claim
or any proceeding relating to any Claim.


 


“Majority
Lenders” means, at any time, one or more Lenders having or holding Loan Exposure and representing more than 50% of the
aggregate Loan Exposure of all Lenders.


 


“Margin Stock”
means “margin stock” within the meaning of Regulations U and X.


 


“Material
Adverse Change” and “Material Adverse Effect” mean a material adverse change in or effect on (a) the
business, financial condition, operations, performance or Property of the Obligors taken as a whole, (b) the ability of any
Obligor to perform its obligations under any Loan Document, (c) the value of the Property comprising Collateral (taken as
a whole), or (d) the legality, validity, binding effect or enforceability of the Loan Documents or the rights and remedies
of any Lender under any of the Loan Documents.


 






    	 	-13-	 



     


    

 


“Material
Agreement” means (a) any Contract which is listed in Schedule 7.14, (b) any other Contract to which the
Borrower or any of its Subsidiaries is a party or a beneficiary from time to time, or to which any assets or properties of the
Borrower or any of its Subsidiaries is bound, the absence or termination of which would reasonably be expected to result in a Material
Adverse Effect, and (c) any other Contract to which the Borrower or any of its Subsidiaries is a party or a guarantor (or
equivalent) whether existing as of the date hereof or in the future that during any period of twelve (12) consecutive months is
reasonably expected to (1) result in payments or receipts (including royalty, licensing or similar payments) made to the Borrower
or any of its Subsidiaries in an aggregate amount in excess of $1,500,000 or (2) require payments or expenditures (including
royalty, licensing or similar payments) made by the Borrower or any of its Subsidiaries in an aggregate amount in excess of $1,500,000.


 





“Material
Indebtedness” means, at any time, any Indebtedness of any Obligor, the outstanding principal amount of which, individually
or in the aggregate, exceeds $1,500,000.


 


“Material
Intellectual Property” means all Obligor Intellectual Property, whether currently owned or licensed, or acquired, developed
or otherwise licensed or obtained after the date hereof (a) necessary for the operation of the business of the Borrower and
its Subsidiaries as currently conducted or as currently contemplated to be conducted, (b) the loss of which would reasonably
be expected to have or result in a Material Adverse Effect or (c) that has a fair market value in excess of $1,500,000.


 


“Maturity
Date” means the earlier to occur of (i) the Stated Maturity Date, and (ii) the date on which the Term Loans
are accelerated pursuant to Section 10.02.


 


“Minimum Liquidity”
has the meaning set forth in Section 8.15.


 


“Minimum Product
Revenue” has the meaning set forth in Section 8.16(a).


 


“Multiemployer
Plan” means any multiemployer plan, as defined in Section 400l(a)(3) of ERISA, to which any ERISA Affiliate
incurs or otherwise has any obligation or liability, contingent or otherwise.


 


“NDA”
means (i)(x) a New Drug Application or Abbreviated New Drug Application (each as defined in the FD&C Act) that must be
submitted to the FDA and (y) any similar application required by any country, jurisdiction or Governmental Authority other
than the FDA that must be approved before a drug can be marketed outside of the U.S., and (ii) all supplements and amendments
that may be submitted to permit any changes to an approved NDA and that are either approved or in effect.


 






    	 	-14-	 



     


    

 


“Net Cash
Proceeds” means, (a) with respect to the incurrence or issuance of any Indebtedness by the Obligors not permitted
under Section 9.01, the excess, if any, of (i) the sum of the cash received in connection with such incurrence or issuance
over (ii) the investment banking fees, underwriting discounts, commissions, costs and other reasonable expenses and other
customary expenses (including reasonable attorney’s, accountant’s and other similar professional advisor’s fees),
incurred by an Obligor in connection with such incurrence or issuance to third parties (other than any other Obligor or any of
their respective Affiliates) and (b) with respect to any Casualty Event experienced or suffered by an Obligor, the amount
of cash proceeds actually received from time to time by or on behalf of such Obligor after deducting therefrom only (i) actual
costs and expenses related thereto incurred by such Obligor in connection therewith and (ii) Taxes paid or payable in connection
therewith.





 


“Note”
means a promissory note executed and delivered by the Borrower to any Lender in accordance with Section 2.04.


 


“Obligations”
means, with respect to any Obligor, all amounts, obligations (including, without limitation, all Warrant Obligations), liabilities,
covenants and duties of every type and description owing by such Obligor to any Lender or any other Indemnified Party hereunder,
arising out of, under, or in connection with, any Loan Document, whether direct or indirect (regardless of whether acquired by
assignment), absolute or contingent, due or to become due, whether liquidated or not, now existing or hereafter arising and however
acquired, and whether or not evidenced by any instrument for the payment of money, including, without duplication, (a) the
principal amount of the Term Loans, (b) all interest, whether or not accruing after the filing of any petition in bankruptcy
or after the commencement of any insolvency, reorganization or similar proceeding, and whether or not a claim for post-filing
or post-petition interest is allowed in any such proceeding, (c) the Prepayment Premium, and (d)  all other fees,
expenses (including fees, charges and disbursement of counsel), interest, commissions, charges, costs, disbursements, indemnities
and reimbursement of amounts paid and other sums chargeable to such Obligor under any Loan Document.


 


“Obligor Intellectual
Property” means, at any time of determination, Intellectual Property owned by, licensed to or otherwise held by
any Obligor at such time including, without limitation, the Intellectual Property listed on Schedule 7.05(b).


 


“Obligors”
means, collectively, the Borrower, each Guarantor and each of their respective successors and permitted assigns.


 


“OFAC”
means the Office of Foreign Assets Control of the U.S. Department of the Treasury (or any successor thereto).


 


“Ordinary
Course of Business” means, with respect to the Obligors, the ordinary course of business generally consistent with past
custom and practice or reasonably anticipated to be future custom and practice (including with respect to nature, scope, magnitude,
quantity and frequency).


 


“Organizational
Documents” means (a) with respect to any corporation, its certificate or articles of incorporation or organization,
as amended, and its by-laws, as amended, (b) with respect to any limited partnership, its certificate of limited partnership,
as amended, and its partnership agreement, as amended, (c) with respect to any general partnership, its partnership agreement,
as amended, and (d) with respect to any limited liability company, its articles of organization, as amended, and its operating
agreement, as amended. In the event any term or condition of this Agreement or any other Loan Document requires any Organizational
Document to be certified by a secretary of state or similar government official, the reference to any such “Organizational
Document” shall only be to a document of a type customarily certified by such government official.


 






    	 	-15-	 



     


    







 


“Other Connection
Taxes” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such
Recipient and the jurisdiction imposing such Tax (other than connections arising solely from such Recipient having executed, delivered,
become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged
in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Term Loan or Loan Document).


 


“Other Taxes”
means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment
made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security
interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed
with respect to an assignment (other than an assignment made pursuant to Section 5.03(h)).


 


“Participant”
has the meaning set forth in Section 13.05(e).


 


“Participant
Register” has the meaning set forth in Section 13.05(f).


 


“Patents”
has the meaning set forth in the Security Agreement.


 


“Payment Date”
means the last day of each Interest Period; provided that if such last day of such Interest Period is not a Business Day,
then the Payment Date for such Interest Period will be the next preceding Business Day.


 


“PBGC”
means the United States Pension Benefit Guaranty Corporation referred to and defined in ERISA and any successor entity performing
similar functions.


 


“Permits”
means all permits, licenses, registrations, certificates, orders, approvals, authorizations, consents, waivers, franchises, variances
and similar rights issued by or obtained from any Governmental Authority, including, without limitation, those relating to Environmental
Laws.


 


“Permitted
Acquisition” means any Acquisition by the Borrower or any of their wholly-owned Subsidiaries, by (i) purchase,
merger, license or otherwise, of all or substantially all of the assets of, all of the Equity Interests of, or a business line
or unit or a division of, any Person or (ii) license arrangement for the rights to use, develop, market or otherwise commercialize
any Patents, Trademarks, Copyrights or other Intellectual Property (other than ordinary course, over the counter software license
arrangements); provided that:


 


(a)            immediately
prior to, and immediately after giving effect thereto, no Default or Event of Default shall have occurred and be continuing or
would result therefrom;


 



    	 	-16-	 



     


    




 


(b)            all
transactions in connection therewith shall be consummated, in all material respects, in accordance with all applicable Laws and
in conformity in all material respects with all applicable Governmental Approvals;


 





(c)            in
the case of the Acquisition of all of the Equity Interests of such Person, all of the Equity Interests (except for any such securities
in the nature of directors’ qualifying shares required pursuant to applicable Law) acquired, or otherwise issued by such
Person or any newly formed Subsidiary of the Borrower in connection with such Acquisition, shall be owned 100% by an Obligor or
any other Subsidiary, and the Borrower shall have taken, or caused to be taken, as of the date such Person becomes a Subsidiary
of the Borrower, each of the actions set forth in Section 8.11, if applicable;


 


(d)            such
Person (in the case of an Acquisition of Equity Interests) or assets (in the case of an Acquisition of assets or a division) (i) shall
be engaged or used, as the case may be, in the same business or lines of business in which the Borrower and/or its Subsidiaries
are engaged or a business reasonably and substantially related thereto or (ii) shall have a similar customer base as the Borrower
and/or its Subsidiaries;


 


(e)            the
Borrower shall have provided the Administrative Agent with at least ten (10) Business Days’ prior written notice
of any such Acquisition, together with summaries, prepared in reasonable detail, of all due diligence conducted by or on behalf
of the Borrower or the applicable Subsidiary prior to such Acquisition;


 


(f)            all
of the assets or Equity Interests acquired in connection with such Acquisition shall be of a U.S. Person; and


 


(g)            on
a pro forma basis after giving effect to such Acquisition, the Borrower and its Subsidiaries shall be in compliance with
the Minimum Liquidity covenant set forth in Section 8.15.


 


“Permitted
Cash Equivalent Investments” means (a) marketable direct obligations issued or unconditionally guaranteed by the
United States or any agency or any State thereof having maturities of not more than two (2) years from the date of acquisition,
(b) commercial paper with an average maturity of no more than one (1) year and having the highest rating from either
Standard & Poor’s Ratings Group or Moody’s Investors Service, Inc., and (c) any money market funds
or other investment vehicles whose principal investments are in investments described in clauses (i) or (ii) above.


 


“Permitted
Indebtedness” means any Indebtedness permitted under Section 9.01.


 


“Permitted
Licenses” are (a) licenses of over-the-counter software that is commercially available to the public, (b) licenses
for the use of Obligor Intellectual Property outside the United States, in each case, entered into in the Ordinary Course of Business
or as otherwise may be approved by the applicable Obligors’ board of directors and so long as (i) no Event of Default
has occurred and is continuing at the time of such license and (ii) such license does not materially impair the Lenders from
exercising their rights under any of the Loan Documents, and (c) to the extent it is considered a license, co-promotion agreements
for Products in the United States so long as such agreements are not exclusive licenses.


 






    	 	-17-	 



     


    

 





“Permitted
Liens” means any Liens permitted under Section 9.02.


 


“Permitted
Priority Liens” means (a) Liens permitted under Section 9.02(d), (e), (f) or (g); and (b) Liens permitted
under Section 9.02(b); provided that such Liens are also of the type described in Section 9.02(d), (e), (f) or
(g).


 


“Permitted
Refinancing” means, with respect to any Indebtedness permitted to be refinanced, extended, renewed or replaced hereunder,
any refinancings, extensions, renewals and replacements of such Indebtedness; provided that such refinancing, extension,
renewal or replacement shall not (a) increase the outstanding principal amount of the Indebtedness being refinanced, extended,
renewed or replaced, (b) contain terms relating to outstanding principal amount, amortization, maturity, collateral security
(if any) or subordination (if any), or other material terms that, taken as a whole, are less favorable in any material respect
to the Borrower and its Subsidiaries or the Lenders than the terms of any agreement or instrument governing the Indebtedness being
refinanced, (c) have an applicable interest rate or equivalent yield that exceeds the interest rate or equivalent yield of
the Indebtedness being refinanced, (d) contain any new requirement to grant any Lien or to give any Guarantee that was not
an existing requirement of the Indebtedness being refinanced and (e) after giving effect to such refinancing, extension, renewal
or replacement, no Default shall have occurred (or could reasonably be expected to occur) as a result thereof.


 


“Person”
means any individual, corporation, company, voluntary association, partnership, limited liability company, joint venture, trust,
unincorporated organization or Governmental Authority or other entity of whatever nature.


 


“PFIC”
has the meaning set forth in Section 8.01(i).


 


“Premium Event”
has the meaning set forth in Section 10.03.


 


“Prepayment
Premium” has the meaning set forth in Section 3.03(a)(i).


 


“Pro Rata
Share” has the meaning set forth in Section 11.08.


 


“Product”
means any product subject to any Product Development and Commercialization Activities by any Obligor, including any such product
currently in development, in each case related to Material Intellectual Property.


 


“Product Agreement”
means, with respect to any Product, any Contract, license, document, instrument, interest (equity or otherwise) or the like under
which one or more Persons grants or receives (a) any right, title or interest with respect to any Product Development and
Commercialization Activities of such Product, or (b) any right to exclude any other Person from engaging in, or otherwise
restricting any right, title or interest as to, any Product Development and Commercialization Activities with respect to such Product,
including any Contract with suppliers, manufacturers, distributors, clinical research organizations, hospitals, group purchasing
organizations, wholesalers, pharmacies or any other Person related to such entity.


 






    	 	-18-	 



     


    

 





“Product Assets”
means, with respect to any Product, (a) any and all rights, title and interest of the Obligors or any of its Subsidiaries
in any assets relating to such Product or any Product Development and Commercialization Activities with respect to such Product,
(b) all Product Related Information with respect to such Product or any related Product Development and Commercialization
Activities, (c) any Product Agreement related to such Product or any such Product Development and Commercialization Activities,
(d) any Intellectual Property, Regulatory Approvals and similar assets with respect to such Product or any such Product Development
and Commercialization Activities, and (e) all rights, title and interests in any other property, tangible or intangible, manifesting
or otherwise in respect of such Product or any such Product Development and Commercialization Activities, including, without limitation,
inventory, accounts receivable or similar rights to receive money or payment pertaining thereto and all proceeds of the foregoing.


 


“Product Authorizations”
means any and all Regulatory Approvals (including, to the extent applicable to the Obligors, all applicable supplements and amendments
that are approved or in effect, governmental price and reimbursement approvals and approvals of applications for regulatory exclusivity),
licenses, registrations, safety or quality specifications and standards contained in the foregoing, or any other authorizations
of any applicable Regulatory Authority in each case necessary for, and to the extent applicable to the Obligors, the manufacturing,
development, distribution, ownership, use, storage, import, export, transport, promotion, marketing, sale or other commercialization
of any Product or for any Product Development and Commercialization Activities with respect thereto in any country or jurisdiction,
whether U.S. or non-U.S, including without limitation INDs, NDAs or similar applications.


 


“Product Development
and Commercialization Activities” means, with respect to any Product, and to the extent applicable to the Obligors, any
combination of research, development, manufacture, use, sale, licensing, importation, storage, design, labeling, marketing, promotion,
supply, distribution, testing, packaging, purchasing or other commercialization activities, receipt of payment in respect of any
of the foregoing (including, without limitation, in respect of licensing, royalty or similar payments), or any similar or other
activities the purpose of which is to commercially exploit such Product.


 


“Product Related
Information” means, with respect to any Product, all books, records, lists, ledgers, files, manuals, Contracts, correspondence,
reports, plans, drawings and data (in any form or medium), and all techniques and other know-how, owned or possessed by the
Borrower or any of its Subsidiaries that are necessary or required for any Product Development and Commercialization Activities
relating to such Product, including, to the extent applicable to the Obligors, (a) brand materials, packaging and other trade
dress, customer targeting and other marketing, promotion and sales materials and information, referral, customer, supplier and
other contact lists and information, product, business, marketing and sales plans, research, studies and reports, sales, maintenance
and production records, training materials and other marketing, sales and promotional information, (b) clinical data, information
included or supporting any Product Authorization or other Regulatory Approval, any regulatory filings, updates, notices and correspondence
(including adverse event and other post-marketing reports and information, etc.), technical information, product development
and operational data and records, and all other documents, records, files, data and other information relating to product development,
manufacture and use, (c) litigation and dispute records, and accounting records, (d) all documents, records and files
relating to Intellectual Property, including all correspondence from and to third parties (including Intellectual Property counsel
and patent, trademark and other intellectual property registries, including the United States Patent and Trademark Office), and
(e) all other information, techniques and know-how necessary or required in connection with the Product Development and
Commercialization Activities for any Product.


 






    	 	-19-	 



     


    

 





“Product Revenue”
means, with respect to the Borrower or any Obligor, all amounts paid to and received by such Person in the ordinary course of business
that, in accordance with GAAP, would be classified as net revenue, excluding upfront payments, milestones, royalties and other
similar one-time payments received by such Person that are not related to the sale of products or services; provided
that Product Revenue shall exclude any of the foregoing amounts received by the Borrower or an Obligor from any other Borrower,
Obligor or their respective Subsidiaries.


 


“Prohibited
Payment” means any bribe, rebate, payoff, influence payment, kickback or other payment or gift of money or anything of
value (including meals or entertainment) to any officer, employee or ceremonial office holder of any government or instrumentality
thereof, political party or supra-national organization (such as the United Nations), any political candidate, any royal family
member or any other person who is connected or associated personally with any of the foregoing that is prohibited under any Requirement
of Law.


 


“Property”
of any Person means any property or assets, or interest therein, of such Person.


 


“Proportionate
Share” means, with respect to any Lender, the percentage obtained by dividing (i) the Loan Exposure of such Lender
then in effect by (ii) the aggregate Loan Exposure of all Lenders then in effect.


 


“Proposal
Letter” means the letter agreement, dated December 19, 2019, among the Borrower and Perceptive Advisors LLC, regarding
the transactions contemplated hereby and the outline of proposed terms and conditions attached thereto.


 


“Publicly
Reporting Company” means an issuer generally subject to the public reporting requirements of the Exchange Act.


 


“Qualified
Equity Interest” means, with respect to any Person, any Equity Interest of such Person that is not a Disqualified Equity
Interest.


 


“Recipient”
means any Lender or the Administrative Agent.


 


“Redemption
Date” has the meaning set forth in Section 3.03(a)(i).


 


“Redemption
Price” has the meaning set forth in Section 3.03(a)(i).


 






    	 	-20-	 



     


    

 


“Referral
Source” has the meaning set forth in Section 7.07(b).


  


“Register”
has the meaning set forth in Section 13.05(d).


 


“Regulation T”
means Regulation T of the Board of Governors of the Federal Reserve System, as amended.


 


“Regulation U”
means Regulation U of the Board of Governors of the Federal Reserve System, as amended.


 


“Regulation X”
means Regulation X of the Board of Governors of the Federal Reserve System, as amended.


 


“Regulatory
Approvals” means any Governmental Approval relating to any Product or any Product Development and Commercialization Activities
related to such Product, including any Product Authorizations with respect thereto.


 


“Regulatory
Authority” means any Governmental Authority that is concerned with or has regulatory or supervisory oversight with respect
to any Product or any Product Development and Commercialization Activities relating to any Product, including the FDA and all equivalent
Governmental Authorities, whether U.S. or non-U.S.


 


“Representatives”
has the meaning set forth in Section 13.17.


 


“Requirement
of Law” means, as to any Person, any Law applicable to or binding upon such Person or any of its Properties or revenues.


 


“Resignation
Effective Date” has the meaning set forth in Section 12.06(a).


 


“Responsible
Officer” of any Person means each of the president, chief executive officer and chief financial officer of such Person.


 


“Restricted
Payment” means any dividend or other distribution (whether in cash, securities or other Property) with respect to any
Equity Interest of the Borrower or any of its Subsidiaries, or any payment (whether in cash, securities or other Property), including
any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination
of any such shares of capital stock of the Borrower or any of its Subsidiaries or any option, warrant or other right to acquire
any such shares of capital stock of the Borrower or any of its Subsidiaries.


 


“Restrictive
Agreement” means any indenture, agreement, instrument or other binding arrangement that prohibits, restricts or imposes
any condition upon (a) the ability of the Borrower or any Subsidiary to create, incur or permit to exist any Lien upon any
of its Property (other than (i) customary provisions in contracts (including without limitation leases and in-bound licenses
of Intellectual Property) restricting the assignment thereof, (ii) restrictions or conditions imposed by any agreement governing
secured Permitted Indebtedness permitted under Section 9.01(g), to the extent that such restrictions or conditions apply only
to the Property securing such Indebtedness and (iii) software and other Intellectual Property licenses pursuant to which the
Borrower or a Subsidiary thereof is the licensee of the relevant software or Intellectual Property, as the case may be (in which
case, any prohibition or limitation shall relate only to the assets or rights subject to the applicable license and/or the license
itself)), or (b) the ability of any Subsidiary to pay dividends or other distributions with respect to any shares of its Equity
Interests or to make or repay loans or advances to the Borrower or any other Subsidiary or to Guarantee Indebtedness of the Borrower
or any other Subsidiary.


 






    	 	-21-	 



     


    

  


“Sanctions”
means economic or financial sanctions, requirements or trade embargoes imposed, administered or enforced from time to time by U.S.
Governmental Authorities (including, but not limited to, OFAC, the U.S. Department of State and the U.S. Department of Commerce).


 


“Sanctions
Laws” means all laws, rules, regulations and requirements of any jurisdiction applicable to the Obligors or any party
to the Loan Documents concerning or relating to Sanctions, terrorism or money laundering.


 


“SEC”
means United States Securities and Exchange Commission.


 


“Securities
Account” has the meaning set forth in the Security Agreement.


 


“Security
Agreement” means the Security Agreement, dated as of the date hereof, in substantially the form of Exhibit F, among
the Obligors, the Lenders and the Administrative Agent, granting a security interest in the personal Property constituting Collateral
thereunder in favor of the Administrative Agent for the benefit of the Lenders.


 


“Security
Documents” means, collectively, the Security Agreement, each Short-Form IP Security Agreement, and each other
security document, control agreement or financing statement executed to perfect Liens in favor of the Administrative Agent for
the benefit of the Lenders.


 


“Segregated
Health Care Account” has the meaning set forth in Section 8.18(c).


 


“Short-Form IP
Security Agreements” means any short-form copyright, patent or trademark (as the case may be) security agreements,
dated as of the date hereof entered into by one or more Obligors in favor of the Administrative Agent for the benefit of the Lenders,
each in form and substance satisfactory to the Administrative Agent.


 


“Solvent”
means, with respect to any Person at any time, that (a) the present fair saleable value of the Property of such Person is
greater than the total amount of liabilities (including contingent liabilities) of such Person, (b) the present fair saleable
value of the Property of such Person is not less than the amount that will be required to pay the probable liability of such Person
on its debts as they become absolute and matured, and (c) such Person has not incurred and does not intend to, and does not
believe that it will, incur debts or liabilities beyond such Person’s ability to pay as such debts and liabilities mature.


 






    	 	-22-	 



     


    

 


“Stated Maturity
Date” means the fourth (4th) anniversary of the Closing Date; provided that if any such date shall
occur on a day that is not a Business Day, then the Stated Maturity Date shall be the next preceding Business Day.


  


“Subsidiary”
means, with respect to any Person (the “parent”) at any time of determination, any other Person of which more
than 50% of the outstanding capital stock of such other Person having ordinary voting powers, determined on a fully diluted basis,
is at the time directly or indirectly owned or controlled by the parent.


 


“Taxes”
means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments,
fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.


 


“Term Loans”
means the Tranche A Term Loan, the Tranche B Term Loan and the Tranche C Term Loan.


 


“Title IV
Plan” means an employee benefit plan (as defined in Section 3(3) of ERISA) other than a Multiemployer Plan
(i) that is (a) maintained or sponsored by any Obligor or any ERISA Affiliate thereof or to which any Obligor or any
ERISA Affiliate thereof has an obligation to make, contributions, and (b) subject to Section 412 of the Code, Section 302
of ERISA or Title IV of ERISA, and (ii) each such plan for the five-year period immediately following the latest date
on which any Obligor or an ERISA Affiliate maintained, contributed to or had an obligation to contribute to such plan.


 


“Trademarks”
has the meaning set forth in the Security Agreement.


 


“Tranche A
Term Loan” means each loan advanced by a Lender pursuant to Section 2.01(a). For purposes of clarification, any
calculation of the aggregate outstanding principal amount of the Tranche A Term Loan on any date of determination shall mean the
aggregate principal amount of the Tranche A Term Loan made pursuant to Section 2.01(a) that has not yet been repaid as
of such date.


 


“Tranche A
Term Loan Commitment” means the commitment of a Lender to make or otherwise fund a Tranche A Term Loan and “Tranche
A Term Loan Commitments” means such commitments of all Lenders in the aggregate. The amount of each Lender’s Tranche
A Term Loan Commitment, if any, is set forth on Schedule 1. The aggregate amount of the Tranche A Term Loan Commitments as
of the Closing Date is $5,000,000.


 


“Tranche B
Term Loan” means each loan advanced by a Lender pursuant to Section 2.01(b). For purposes of clarification, any
calculation of the aggregate outstanding principal amount of the Tranche B Term Loan on any date of determination shall mean the
aggregate principal amount of the Tranche B Term Loan made pursuant to Section 2.01(b) that has not yet been repaid as
of such date.


 






    	 	-23-	 



     


    

 



 


“Tranche B
Term Loan Borrowing Date” means with respect to the Tranche B Term Loan, the Business Day on which all conditions set
forth in Section 6.02 have been satisfied or waived by the Lenders and the Tranche B Term Loan is made hereunder.


 


“Tranche B
Term Loan Commitment” means the commitment of a Lender to make or otherwise fund a Tranche B Term Loan and “Tranche
B Term Loan Commitments” means such commitments of all Lenders in the aggregate. The amount of each Lender’s Tranche
B Term Loan Commitment, if any, is set forth on Schedule 1. The aggregate amount of the Tranche B Term Loan Commitments as
of the Closing Date is $15,000,000.


 


“Tranche B
Term Loan Commitment Termination Date” means March 31, 2020.


 


“Tranche C
Term Loan” means each loan advanced by a Lender pursuant to Section 2.01(c). For purposes of clarification, any
calculation of the aggregate outstanding principal amount of the Tranche C Term Loan on any date of determination shall mean the
aggregate principal amount of the Tranche C Term Loan made pursuant to Section 2.01(c) that has not yet been repaid as
of such date.


 


“Tranche C
Term Loan Borrowing Date” means with respect to the Tranche C Term Loan, the Business Day on which all conditions set
forth in Section 6.03 have been satisfied or waived by the Lenders and the Tranche C Term Loan is made hereunder.


 


“Tranche C
Term Loan Commitment” means the commitment of a Lender to make or otherwise fund a Tranche C Term Loan and “Tranche
C Term Loan Commitments” means such commitments of all Lenders in the aggregate. The amount of each Lender’s Tranche
C Term Loan Commitment, if any, is set forth on Schedule 1. The aggregate amount of the Tranche C Term Loan Commitments as
of the Closing Date is $15,000,000.


 


“Tranche C
Term Loan Commitment Termination Date” means December 31, 2021.


 


“Transactions”
means the execution, delivery and performance by each Obligor of this Agreement and the other Loan Documents to which such Obligor
is a party and the other transactions contemplated hereby and thereby, including disbursement and application of the proceeds of
the Term Loans.


 


“Unrestricted
Cash” means the balance of unencumbered cash (other than cash encumbered by the Liens granted to the Lenders pursuant
to the Loan Documents) and Permitted Cash Equivalent Investments (which for greater certainty shall not include any undrawn credit
lines), in each case, to the extent held in a Deposit Account subject to an account control agreement reasonably satisfactory to
the Administrative Agent.


 


“U.S. Person”
means a “United States person” within the meaning of Section 7701(a)(30) of the Code.


 


“U.S. Tax
Compliance Certificate” has the meaning set forth in Section 5.03(f)(ii)(B)(3).


 






    -24-


     


    

 


“Warrants”
means the warrants to be delivered to the Administrative Agent pursuant to Section 6.01(f) that, among other things,
grants the holder thereof the right to purchase the number of shares of unrestricted common stock of the Borrower as indicated
on the Warrant Shares table on Schedule 1, as the Warrants may be amended, replaced or otherwise modified pursuant to the
terms thereof.


 


“Warrant Obligations”
means, with respect to the Borrower, all of its Obligations arising out of, under or in connection with, any Warrant.


 


“Withdrawal
Liability” means, at any time, any liability incurred (whether or not assessed) by any ERISA Affiliate and not yet satisfied
or paid in full at such time with respect to any Multiemployer Plan pursuant to Section 4201 of ERISA.


 


“Withholding
Agent” means the Borrower and the Administrative Agent.


 


“Write-Down
and Conversion Powers” means, with respect to any EEA Resolution Authority, the write-down and conversion powers
of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which
write-down and conversion powers are described in the EU Bail-In Legislation Schedule.


 


Section 1.02.     Accounting
Terms and Principles. All accounting determinations required to be made pursuant hereto
shall, unless expressly otherwise provided herein, be made substantially in accordance with GAAP. If, after the date hereof, any
change occurs in GAAP or in the application thereof (an “Accounting Change”) and such change would cause any
amount required to be determined for the purposes of the covenants to be maintained or calculated pursuant to Article 8 or
9 to be materially different than the amount that would be determined prior to such change, then the Borrower will provide a detailed
notice of such change (an “Accounting Change Notice”) to the Administrative Agent in conjunction with the next
required delivery of financial statements pursuant to Section 8.01. If the Borrower requests an amendment to any provision
hereof to eliminate the effect of any Accounting Change occurring after the Closing Date or in the application thereof on the operation
of such provision, regardless of whether any Accounting Change Notice is given before or after such Accounting Change or in the
application thereof, then the Administrative Agent and the Borrower agree that they will negotiate in good faith amendments to
the provisions of this Agreement that are directly affected by such Accounting Change with the intent of having the respective
positions of the Administrative Agent and the Borrower after such Accounting Change conform as nearly as possible to their respective
positions as of the date of this Agreement and, until any such amendments have been agreed upon, (i) the provisions in this
Agreement shall be calculated as if no such Accounting Change had occurred and (ii) the Borrower shall provide to the Administrative
Agent a written reconciliation in form and substance reasonably satisfactory to the Administrative Agent, between calculations
of any baskets and other requirements hereunder before and after giving effect to such Accounting Change.


 






    -25-


     


    

 


All components of financial
calculations made to determine compliance with this Agreement shall be adjusted to include or exclude, as the case may be, without
duplication, such components of such calculations attributable to any Acquisition or disposition of assets consummated after the
first day of the applicable period of determination and prior to the end of such period, as determined in good faith by the Borrower
based on assumptions expressed therein and that were reasonable based on the information available to the Borrower at the time
of preparation of the Compliance Certificate setting forth such calculations.


 


Section 1.03.     Interpretation.
For all purposes of this Agreement, except as otherwise expressly provided herein or unless the context otherwise requires, (a) the
terms defined in this Agreement include the plural as well as the singular and vice versa; (b) words importing gender include
all genders; (c) any reference to a Section, Article, Annex, Schedule or Exhibit refers to a Section or Article of,
or Annex, Schedule or Exhibit to, this Agreement; (d) any reference to “this Agreement” refers to this Agreement,
including all Annexes, Schedules and Exhibits hereto, and the words herein, hereof, hereto and hereunder and words of similar import
refer to this Agreement and its Annexes, Schedules and Exhibits as a whole and not to any particular Section, Article, Annex, Schedule,
Exhibit or any other subdivision; (e) references to days, months and years refer to calendar days, months and years,
respectively; (f) all references herein to “include” or “including” shall be deemed to be followed
by the words “without limitation”; (g) the word “from” when used in connection with a period of time
means “from and including” and the word “until” means “to but not including”; and (h) accounting
terms not specifically defined herein shall be construed substantially in accordance with GAAP (except for the term “property,”
which shall be interpreted as broadly as possible, including, in any case, cash, securities, other assets, rights under contractual
obligations and permits and any right or interest in any property, except where otherwise noted). Unless otherwise expressly provided
herein, references to organizational documents, agreements (including the Loan Documents) and other contractual instruments shall
be deemed to include all subsequent amendments, restatements, extensions, supplements and other modifications thereto permitted
by the Loan Documents.


 


Section 1.04.     Divisions.
For all purposes under the Loan Documents, in connection with any division or plan of division under Delaware law (or any comparable
event under a different jurisdiction’s laws): (a) if any asset, right, obligation or liability of any Person becomes
the asset, right, obligation or liability of a different Person, then it shall be deemed to have been transferred from the original
Person to the subsequent Person and (b) if any new Person comes into existence, such new Person shall be deemed to have been
organized on the first date of its existence by the holders of its Equity Interests at such time.


 


Article 2


 


The
Commitments


 


Section 2.01.     Term
Loans.


 


(a)           Tranche
A Term Loan.


 


(i)            Subject
to the terms and conditions of this Agreement and relying on the representations and warranties set forth herein, each Lender,
severally and not jointly, agrees to provide its share of the Tranche A Term Loan to the Borrower on the Closing Date in Dollars
in a principal amount equal to such Lender’s Tranche A Term Loan Commitment. No Lender shall have an obligation to make a
Tranche A Term Loan in excess of such Lender’s Tranche A Term Loan Commitment.


 






    -26-


     


    

 


(ii)            The
Borrower may make one borrowing under the Tranche A Term Loan Commitment which shall be on the Closing Date. Subject to Sections
3.01 and 3.03, all amounts owed hereunder with respect to the Tranche A Term Loan shall be paid in full no later than the
Maturity Date. Each Lender’s Tranche A Term Loan Commitment shall terminate immediately and without further action on the
Closing Date after giving effect to the funding of such Lender’s Tranche A Term Loan Commitment on such date.


 


(b)           Tranche
B Term Loan.


 


(i)            Prior
to the Tranche B Term Loan Commitment Termination Date, subject to the terms and conditions of this Agreement and relying on the
representations and warranties set forth herein, each Lender, severally and not jointly, agrees, at the request of the Borrower,
to provide its share of the Tranche B Term Loan to the Borrower on the Tranche B Term Loan Borrowing Date in Dollars in a principal
amount equal to such Lender’s Tranche B Term Loan Commitment. No Lender shall have an obligation to make a Tranche B Term
Loan in excess of such Lender’s Tranche B Term Loan Commitment.


 


(ii)            Subject
to the terms and conditions of this Agreement (including Section 6.02), the Borrower shall deliver to the Administrative Agent
a fully executed Borrowing Notice no later than 5 p.m. (Eastern time) at least three (3) Business Days in advance of
the proposed Tranche B Term Loan Borrowing Date.


 


(iii)            The
Borrower may make one borrowing under the Tranche B Term Loan Commitment which shall be on the Tranche B Term Loan Borrowing Date.
Subject to Sections 3.01 and 3.03, all amounts owed hereunder with respect to the Tranche B Term Loan shall be paid in full
no later than the Maturity Date. Each Lender’s Tranche B Term Loan Commitment shall terminate immediately and without further
action on the Tranche B Term Loan Borrowing Date after giving effect to the funding of such Lender’s Tranche B Term Loan
Commitment on such date.


 


(c)           Tranche
C Term Loan.


 


(i)            Prior
to the Tranche C Term Loan Commitment Termination Date, subject to the terms and conditions of this Agreement and relying on the
representations and warranties set forth herein, each Lender, severally and not jointly, agrees to provide its share of the Tranche
C Term Loan to the Borrower on the Tranche C Term Loan Borrowing Date in Dollars in a principal amount equal to such Lender’s
Tranche C Term Loan Commitment. No Lender shall have an obligation to make a Tranche C Term Loan in excess of such Lender’s
Tranche C Term Loan Commitment.


 


(ii)            Subject
to the terms and conditions of this Agreement (including Section 6.03), the Borrower shall deliver to the Administrative Agent
a fully executed Borrowing Notice no later than 5 p.m. (Eastern time) at least three (3) Business Days in advance of
the proposed Tranche C Term Loan Borrowing Date.


 






    -27-


     


    

 


(iii)            The
Borrower may make one borrowing under the Tranche C Term Loan Commitment which shall be on the Tranche C Term Loan Borrowing Date.
Subject to Sections 3.01 and 3.03, all amounts owed hereunder with respect to the Tranche C Term Loan shall be paid in full
no later than the Maturity Date. Each Lender’s Tranche C Term Loan Commitment shall terminate immediately and without further
action on the Tranche C Term Loan Borrowing Date after giving effect to the funding of such Lender’s Tranche C Term Loan
Commitment on such date.


 


(d)           Any
principal amount of the Term Loan borrowed under Section 2.01(a), 2.01(b) or 2.01(c) hereof and subsequently repaid
or prepaid may not be reborrowed.


 


Section 2.02.     Proportionate
Shares. Each Term Loan shall be made, and all participations purchased, by the Lenders
simultaneously and proportionately to their respective Proportionate Shares, it being understood that no Lender shall be responsible
for any default by any other Lender in such other Lender’s obligation to make a Term Loan hereunder or purchase a participation
required hereby nor shall the Commitment of any Lender be increased or decreased as a result of a default by any other Lender in
such other Lender’s obligation to make a Term Loan requested hereunder or purchase a participation required hereby.


 


Section 2.03.     Fees.
On the Closing Date, the Borrower shall pay out of the proceeds of the Tranche A Term Loan advanced by the Lenders on the Closing
Date a non-refundable fee in the amount of $350,000 (the “Closing Fee”). Such payment shall be in addition
to such fees, costs and expenses due and payable pursuant to Section 13.03.


 


Section 2.04.     Notes.
Upon the request of any Lender, the Borrower shall prepare, execute and deliver to such Lender one or more promissory note(s) evidencing
the portion of the Term Loans payable to such Lender (or if requested by it, to it and its registered assigns) in the form attached
hereto as Exhibit B (each, a “Note”).


 


Section 2.05.     Use
of Proceeds. The Borrower shall use the proceeds of the Term Loans (a) for general
working capital purposes and corporate purposes permitted hereunder, (b) to refinance certain existing Indebtedness on the
Closing Date and (c) to pay fees, costs and expenses incurred in connection with the Transactions.


 


Article 3


 


Payments
of Principal and Interest


 


Section 3.01.     Repayment.
There will be no scheduled repayments of principal on the Term Loans prior to the third (3rd) anniversary of the Closing
Date. Commencing with the Payment Date occurring immediately after the third (3rd) anniversary of the Closing Date,
the Borrower shall on each Payment Date make a repayment of the Term Loans in an amount equal to 1.50% of the initial principal
amount of the Term Loans drawn under Section 2.01. The entire outstanding principal amount of the Term Loans will be due and
payable on the Maturity Date.


 






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Section 3.02.     Interest.


 


(a)            Interest
Generally. The Borrower agrees to pay to the Lenders interest in cash on the outstanding principal amount of the Term Loans
for each Interest Period at a rate per annum equal to the sum of (i) LIBOR plus (ii) the Applicable Margin.


 


(b)            LIBOR
Not Determinable. If on or before the day on which LIBOR is to be determined, the Majority Lenders determine in their reasonable
discretion that (i) LIBOR cannot be determined for any reason, (ii) LIBOR will not adequately and fairly reflect the
cost of maintaining the Term Loans or (iii) Dollar deposits in the principal amount of the Term Loans are not available in
the London interbank market, the Majority Lenders shall, as soon as practicable thereafter, give written notice of such determination
to the Borrower and the Administrative Agent. Upon any such determination, LIBOR shall be LIBOR as of the end of the immediately
preceding Interest Period and shall at all times thereafter bear interest at LIBOR as of the end of the immediately preceding Interest
Period. Each determination by the Majority Lenders hereunder shall be conclusive and binding absent manifest error.


 


(c)            Replacement
to LIBOR. If at any time the Administrative Agent determines in its reasonable discretion
(which determination shall be conclusive absent manifest error) that (i) the circumstances set forth in clause (b)(i) of
this Section have arisen and such circumstances are unlikely to be temporary or (ii) the circumstances set forth in clause (b)(i) of
this Section have not arisen but the supervisor for the administrator of LIBOR has made a public statement identifying a specific
date after which LIBOR shall no longer be used for determining interest rates for loans, then the Administrative Agent and the
Borrower shall endeavor to establish an alternate rate of interest to LIBOR that gives due consideration to the then-prevailing
market convention for determining a rate of interest for syndicated loans in the United States at such time for similarly sized
credits, and shall enter into an amendment to this Agreement to reflect such alternate rate of interest and such other related
changes to this Agreement as may be applicable; provided that, if such alternate rate of interest shall be less than 1.50%,
such rate shall be deemed to be 1.50% for the purposes of this Agreement. Notwithstanding anything to the contrary in Section 13.04,
such amendment shall become effective without any further action or consent of any other party to this Agreement so long as the
Administrative Agent shall not have received, within five (5) Business Days of the date notice of such alternate rate of interest
is provided to the Lenders, a written notice from the Majority Lenders stating that such Lenders object to such amendment.


 


(d)            Default
Interest. Notwithstanding the foregoing, upon the occurrence and during the continuance of any Event of Default, the Applicable
Margin on the principal amount of the Term Loans outstanding hereunder shall automatically increase by three percent (3.00%) per
annum (the interest rate, as increased pursuant to this Section 3.02(d), being the “Default Rate”). If
any Obligation is not paid when due under any applicable Loan Document, the amount thereof shall accrue interest at the Default
Rate. Payment or acceptance of the increased rates of interest provided for in this Section 3.02(d) is not a permitted
alternative to timely payment and shall not constitute a waiver of any Event of Default or otherwise prejudice or limit any rights
or remedies of the Administrative Agent or any Lender.


 






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(e)            Payment
Dates. Accrued interest on the Term Loans shall be payable in arrears on each Payment Date with respect to the most recently
completed Interest Period in cash, and upon the payment or prepayment of the Term Loans (on the principal amount being so paid
or prepaid); provided that interest payable at the Default Rate shall be payable from time to time on demand by the Majority
Lenders.


 


(f)            Maximum
Rate. Notwithstanding any other provision of this Agreement, in no event will any interest
or rates referred to herein exceed the maximum interest rate permitted by applicable Law. If such maximum interest rate would be
exceeded by the terms hereof, the rates of interest payable hereunder will be reduced to the extent necessary so that such rates
(together with any fees or other amounts which are construed by a court of competent jurisdiction to be interest or in the nature
of interest) equal the maximum interest rate permitted by applicable Law and any overpayment of interest received by the Lenders
before such rates are so construed will be applied, forthwith after determination of such overpayment, to pay all then outstanding
interest, and thereafter to pay outstanding principal.


 


Section 3.03.     Prepayments.


 


(a)           Optional
Prepayments. (i) The Borrower shall have the right to optionally prepay in whole or in part (in a minimum amount of $500,000
and integral multiples of $100,000 in excess of that amount for each partial prepayment) the outstanding principal amount of the
Term Loans on any Business Day (a “Redemption Date”) for an amount equal to the sum of (x) the aggregate
principal amount of the Term Loans being prepaid, (y) the prepayment premium set forth in clause (ii) below (the “Prepayment
Premium”) and (z) any accrued but unpaid interest in respect of the aggregate principal amount of the Term Loans
being prepaid (such aggregate amount, the “Redemption Price”). The applicable Prepayment Premium shall be an
amount calculated pursuant to Section 3.03(a)(ii).


 


(ii)            If
the Redemption Date occurs:


 


(A)            on
or prior to the first anniversary of the Closing Date, the Prepayment Premium shall be an amount equal to one hundred ten percent
(110%) of the aggregate outstanding principal amount of the Term Loans being prepaid on such Redemption Date;


 


(B)            after
the first anniversary of the Closing Date and on or prior to the second anniversary of the Closing Date, the Prepayment Premium
shall be an amount equal to one hundred eight percent (108%) of the aggregate outstanding principal amount of the Term Loans being
prepaid on such Redemption Date;


 


(C)            after
the second anniversary of the Closing Date and on or prior to the third anniversary of the Closing Date, the Prepayment Premium
shall be an amount equal to one hundred four percent (104%) of the aggregate outstanding principal amount of the Term Loans being
prepaid on such Redemption Date; and


 






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(D)            after
the third anniversary of the Closing Date and prior to the fourth anniversary of the Closing Date, the Prepayment Premium shall
be an amount equal to one hundred two percent (102%) of the aggregate outstanding principal amount of the Term Loans being prepaid
on such Redemption Date.


 


(b)           Mandatory
Prepayments. The Borrower shall prepay the Term Loans in amounts as provided below, plus the Prepayment Premium on the principal
amount of the Term Loans being prepaid (calculated in accordance with Section 3.03(a)(ii), it being agreed that the relevant
payment date shall be deemed to be the “Redemption Date” for purposes of such calculation), plus any accrued but unpaid
interest and fees then due and owing, as follows:


 


(i)            In
the event of any Casualty Event, an amount equal to 100% of the Net Cash Proceeds received by the Obligors with respect thereto;
provided, however, so long as no Default has occurred and is continuing, within one hundred eighty (180) days after receipt
of such Net Cash Proceeds, the Borrower may apply the Net Cash Proceeds of any casualty policy up to $500,000 with respect to any
loss, but not exceeding $750,000 in the aggregate for all losses under all casualty policies during the term of this Agreement,
toward the replacement or repair of destroyed or damaged property; provided, further, that any such replaced or repaired
property shall be Collateral in which the Administrative Agent for the benefit of the Lenders has been granted a security interest
under the Security Documents.


 


(ii)            In
the event any Obligor incurs Indebtedness other than Indebtedness that is permitted by Section 9.01 hereof, 100% of the Net
Cash Proceeds thereof received by such Obligor. For the avoidance of doubt, any prepayment made pursuant to this Section 3.03(b)(ii) shall
not be deemed to be a consent to any such incurrence of Indebtedness or a cure or waiver of any Event of Default which occurs in
connection therewith, it being understood that any such Event of Default may only be waived with the express consent of the Majority
Lenders.


 


(c)           Prepayment
Premium. Payment of any Prepayment Premium under this Section 3.03 constitutes liquidated damages, not unmatured interest
or a penalty, as the actual amount of damages to the Lenders as a result of the relevant triggering event, prepayment or repayment
would be impracticable and extremely difficult to ascertain. Accordingly, the Prepayment Premium hereunder is provided by mutual
agreement of the Borrower and the Lenders as a reasonable estimation and calculation of such actual lost profits and other actual
damages of the Lenders. Without limiting the generality of the foregoing, it is understood and agreed that upon the occurrence
of any Premium Event, the Prepayment Premium shall be automatically and immediately due and payable as though any prepaid or repaid
portion of the Term Loans were voluntarily prepaid as of such date and shall constitute part of the Obligations secured by the
Collateral. The Prepayment Premium shall also be automatically and immediately due and payable if the Term Loans are satisfied
or released by foreclosure (whether by power of judicial proceeding or otherwise), deed in lieu of foreclosure or by any other
means. THE BORROWER HEREBY EXPRESSLY WAIVES (TO THE FULLEST EXTENT IT MAY LAWFULLY DO SO) THE PROVISIONS OF ANY PRESENT OR
FUTURE STATUTE OR OTHER LAW THAT PROHIBITS OR MAY PROHIBIT THE COLLECTION OF THE FOREGOING APPLICABLE PREMIUM IN CONNECTION
WITH ANY SUCH EVENTS. The Borrower and the other Obligors expressly agree (to the fullest extent it and they may lawfully do so)
that with respect to the Prepayment Premium payable under the terms of this Agreement: (i) the Prepayment Premium is reasonable
and is the product of an arm’s length transaction between sophisticated business parties, ably represented by counsel; (ii) the
Prepayment Premium shall be payable notwithstanding the then-prevailing market rates at the time payment is made; (iii) there
has been a course of conduct between the Lenders and the Obligors giving specific consideration in this transaction for such agreement
to pay the Prepayment Premium; and (iv) the Obligors shall be estopped hereafter from claiming differently than as agreed
to in this paragraph. The Obligors expressly acknowledge that their agreement to pay the Prepayment Premium as herein described
is a material inducement to the Lenders to provide the Commitments and to make the Term Loans.


 






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Article 4


 


Payments,
Etc.


 


Section 4.01.     Payments.


 


(a)           Payments
Generally. Each payment of principal, interest and other amounts to be made by the Obligors under this Agreement or any other
Loan Document shall be made in Dollars, in immediately available funds, without deduction, set off or counterclaim, to the deposit
account of the Administrative Agent, for the account of the respective Lenders to which such payment is owed, not later than 2:00 p.m. (Eastern
time) on the date on which such payment is due (each such payment made after such time on such due date to be deemed to have been
made on the next succeeding Business Day).


 


(b)           Application
of Payments Following an Event of Default. Proceeds of all payments received following an Event of Default shall be applied
in the following order of priority, with proceeds being applied to a succeeding level of priority only if amounts owing pursuant
to the immediately preceding level of priority have been paid in full in cash:


 


(i)            first,
to the payment of any unpaid costs or expenses referred to in Section 13.03(a) then due and owing;


 


(ii)          second,
to the payment of any accrued and unpaid interest and any fees (other than the Prepayment Premium) then due and owing;


 


(iii)         third,
to the payment of unpaid principal of the Term Loans on a pro rata basis;


 


(iv)         fourth,
to the payment of any Prepayment Premium then due and payable;


 






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(v)          fifth,
in reduction of the Borrower’s obligation to pay any Claims or Losses referred to in Section 13.03(b) then due
and owing; and


 


(vi)        sixth,
to the Borrower or such other Persons as may lawfully be entitled to or directed by the Borrower to receive the remainder.


 


(c)           Application
of Prepayments. Proceeds of any prepayment made pursuant to clauses 3.03(a) or 3.03(b) above shall be applied
in the following order of priority, with proceeds being applied to a succeeding level of priority only if amounts owing pursuant
to the immediately preceding level of priority have been paid in full in cash:


 


(i)           first,
to the payment of any unpaid costs or expenses referred to in Section 13.03(a) then due and owing;


 


(ii)          second,
to the payment of any accrued and unpaid interest and any fees (other than the Prepayment Premium) then due and owing;


 


(iii)         third,
to the payment of any Prepayment Premium then due and payable; and


 


(iv)         fourth,
to the payment of unpaid principal of the Term Loans on a pro rata basis.


 


Unless otherwise directed by the Majority
Lenders, all payments of principal, interest and fees under this Agreement and the other Loan Documents shall be made by the Obligors
to the Lenders pro rata in accordance with the Lenders’ respective Proportionate Shares of such payments.


 


(d)           Non-Business
Days. Except in the case of any payment to be made on any Payment Date, if the due date of any payment under this Agreement
(whether in respect of principal, interest, fees, costs or otherwise, but excluding the Stated Maturity Date) would otherwise fall
on a day that is not a Business Day, such date shall be extended to the next succeeding Business Day, and, in the case of any payment
accruing interest, interest thereon shall be payable for the period of such extension.


 


Section 4.02.     Computations.
All computations of interest and fees hereunder shall be computed on the basis of a year of 360 days and actual days elapsed during
the period for which payable.


 


Section 4.03.     Notices.
Each notice of optional prepayment shall be effective only if received by the Lenders not later than 2:00 p.m. (Eastern
time) on the date three (3) Business Days prior to the date of prepayment. Each notice of optional prepayment shall specify
the amount to be prepaid and the date of prepayment.


 






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Section 4.04.     Set-Off.


 


(a)            Set-Off
Generally. Upon the occurrence and during the continuance of any Event of Default, the Administrative Agent, the Lenders and
each of their respective Affiliates are hereby authorized at any time and from time to time, to the fullest extent permitted by
Law, to set off and apply any and all deposits (general or special, time or demand, provisional or final) at any time held and
other indebtedness at any time owing by the Lenders or such Affiliates to or for the credit or the account of any Obligor against
any and all of the Obligations, whether or not the Lenders shall have made any demand and although such Obligations may be unmatured.
The Lenders agree promptly to notify the Borrower after any such set-off and application, provided that the failure
to give such notice shall not affect the validity of such set-off and application. The rights of the Lenders and their respective
Affiliates under this Section 4.04 are in addition to other rights and remedies (including other rights of set-off) that
the Lenders and their respective Affiliates may have.


 


(b)            Exercise
of Rights Not Required. Nothing contained herein shall require the Administrative Agent, the Lenders or any of their respective
Affiliates to exercise any such right or shall affect the right of such Persons to exercise, and retain the benefits of exercising,
any such right with respect to any other indebtedness or obligation of any Obligor.


 


Article 5


 


Yield
Protection, Etc.


 


Section 5.01.     Additional
Costs.


 


(a)            Change
in Requirements of Law Generally. If, on or after the date hereof, the adoption of any Requirement of Law, or any change in
any Requirement of Law, or any change in the interpretation or administration thereof by any court or other Governmental Authority
charged with the interpretation or administration thereof, or compliance by any Lender (or its lending office) with any request
or directive (whether or not having the force of law) of any such Governmental Authority, shall impose, modify or deem applicable
any reserve (including any such requirement imposed by the Board of Governors of the Federal Reserve System), special deposit,
contribution, insurance assessment or similar requirement, in each case that becomes effective after the date hereof, against assets
of, deposits with or for the account of, or credit extended by, a Lender (or its lending office) or shall impose on a Lender (or
its lending office) any other condition affecting the Term Loans or the Commitment, not as a result of any action or inaction on
the part of such Lender, and the result of any of the foregoing is to increase the cost to any Lender of making or maintaining
its portion of the Term Loans, or to reduce the amount of any sum received or receivable by any Lender under this Agreement or
any other Loan Document, by an amount reasonably deemed by such Lender in good faith to be material (other than (i) Indemnified
Taxes, (ii) Taxes described in clauses (b) through (d) of the definition of “Excluded Taxes”
and (iii) Connection Income Taxes), then the Borrower shall promptly pay to such Lender on demand such additional amount or
amounts as will compensate such Lender for such increased cost or reduction. Notwithstanding anything herein to the contrary, (x) the
Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued
in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements,
the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities,
in each case pursuant to Basel III, shall in each case be deemed to constitute a change in Requirements of Law for all purposes
of this Section 5.01, regardless of the date enacted, adopted or issued.


 






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(b)            Change
in Capital Requirements. If a Lender shall have determined that, on or after the date hereof, the adoption of any Requirement
of Law regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any
Governmental Authority charged with the interpretation or administration thereof, or any request or directive regarding capital
adequacy (whether or not having the force of law) of any such Governmental Authority, in each case that becomes effective after
the date hereof, has or would have the effect of reducing the rate of return on capital of a Lender (or its parent) as a consequence
of a Lender’s obligations hereunder or the Term Loans to a level below that which a Lender (or its parent) could have achieved
but for such adoption, change, request or directive by an amount reasonably deemed by it to be material, then the Borrower shall
pay to such Lender on demand such additional amount or amounts as will compensate such Lender (or its parent) for such reduction.


 


(c)            Notification
by Lender. The Lenders will promptly notify the Borrower of any event of which it has knowledge, occurring after the date hereof,
which will entitle a Lender to compensation pursuant to this Section 5.01. Before giving any such notice pursuant to this
Section 5.01(c) such Lender shall designate a different lending office if such designation (x) will, in the reasonable
judgment of such Lender, avoid the need for, or reduce the amount of, such compensation and (y) will not, in the reasonable
judgment of such Lender, be materially disadvantageous to such Lender. A certificate of the Lender claiming compensation under
this Section 5.01, setting forth the amount or amounts to be paid to it hereunder, shall be conclusive and binding on the
Borrower in the absence of manifest error.


 


Section 5.02.     Illegality.
Notwithstanding any other provision of this Agreement, in the event that on or after the date hereof the adoption of or any change
in any Requirement of Law or in the interpretation or application thereof by any competent Governmental Authority shall make it
unlawful for a Lender or its lending office to make or maintain the Term Loans (and, in the opinion of such Lender, the designation
of a different lending office would either not avoid such unlawfulness or would be disadvantageous to such Lender), then such Lender
shall promptly notify the Borrower thereof following which (a) the Lender’s Commitment shall be suspended until such
time as such Lender may again make and maintain the Term Loans hereunder and (b) if such Requirement of Law shall so mandate,
the Term Loans shall be prepaid by the Borrower on or before such date as shall be mandated by such Requirement of Law in an amount
equal to the Redemption Price applicable on the date of such prepayment in accordance with Section 3.03(a).


 


Section 5.03.     Taxes.


 


(a)            Payments
Free of Taxes. Any and all payments on account of any Obligation shall be made without deduction or withholding for any Taxes,
except as required by applicable Law. If any applicable Law requires the deduction or withholding of any Tax from any such payment
by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall
timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable Law and, if
such Tax is an Indemnified Tax, then the sum payable by such Obligor shall be increased as necessary so that after such deduction
or withholding for Indemnified Taxes has been made (including such deductions and withholdings for Indemnified Taxes applicable
to additional sums payable under this Section 5.03) the applicable Recipient receives an amount equal to the sum it would
have received had no such deduction or withholding for Indemnified Taxes been made. For purposes of this Section, the term “applicable
Law” includes FATCA.


 






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(b)            Payment
of Other Taxes by the Borrower. The Borrower shall timely pay to the relevant Governmental Authority in accordance with applicable
Law, or at the option of the Administrative Agent, timely reimburse it for, Other Taxes.


 


(c)            Evidence
of Payments. As soon as practicable after any payment of Taxes by the Borrower to a Governmental Authority, as a withholding
Tax pursuant to this Section 5.03, the Borrower shall deliver to the Administrative Agent the original or a certified copy
of a receipt issued by such Governmental Authority evidencing such payment, or a copy of the return reporting such payment or other
evidence of such payment reasonably satisfactory to the Administrative Agent.


 


(d)            Indemnification.
The Borrower shall reimburse and indemnify each Recipient, within ten (10) days after demand therefor, for the full amount
of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section 5.03)
payable or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient and any reasonable expenses
arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted
by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to the Borrower by
a Lender (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender,
shall be conclusive absent manifest error.


 


(e)            Indemnification
by the Lenders. Each Lender shall severally indemnify the Administrative Agent, within ten (10) days after demand therefor,
for (i) any Indemnified Taxes attributable to such Lender (but only to the extent that the Borrower has not already indemnified
the Administrative Agent for such Indemnified Taxes and without limiting the obligation of any Borrower to do so), and (ii) any
Taxes attributable to such Lender, in each case, that are payable or paid by the Administrative Agent in connection with any Loan
Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally
imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered
to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative
Agent to set off and apply any and all amounts at any time owing to such Lender under any Loan Document or otherwise payable by
the Administrative Agent to such Lender from any other source against any amount due to the Administrative Agent under this paragraph (e).


 






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(f)            Status
of Lenders. (i) Any Lender that is entitled to an exemption from, or reduction of withholding Tax with respect to payments
made under any Loan Document shall deliver to the Borrower and the Administrative Agent, at the time or times reasonably requested
by the Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrower
or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In
addition, any Lender, if reasonably requested by the Borrower or the Administrative Agent, shall deliver such other documentation
prescribed by applicable Law or as reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower
or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements.
Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation
(other than such documentation set forth in Section 5.03(f)(ii)(A), (B) or (D)) shall not be required if in the Lender’s
reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense
or would materially prejudice the legal or commercial position of such Lender.


 


(ii)            Without
limiting the generality of the foregoing:


 


(A)            any
Lender that is a U.S. Person shall deliver to the Borrower and the Administrative Agent on or prior to the date on which such Lender
becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative
Agent), duly completed, valid, executed copies of IRS Form W-9 (or successor form) certifying that such Lender is exempt
from U.S. Federal backup withholding Tax;


 


(B)            any
Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such
number of copies as shall be requested by the Recipient) on or prior to the date on which such Foreign Lender becomes a Lender
under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower and the Administrative Agent),
whichever of the following is applicable:


 


(1)            in
the case of a Foreign Lender claiming the benefits of an income Tax treaty to which the United States is a party (x) with
respect to payments of interest under any Loan Document, duly completed, valid executed copies of IRS Form W-8BEN (or
successor form) or IRS Form W-8BEN-E (or successor form) establishing an exemption from, or reduction of, U.S. Federal
withholding Tax pursuant to the “interest” article of such Tax treaty and (y) with respect to any other applicable
payments under any Loan Document, duly completed, valid, executed originals of IRS Form W-8BEN (or successor form) or
IRS Form W-8BEN-E (or successor form) establishing an exemption from, or reduction of, U.S. Federal withholding Tax
pursuant to the “business profits” or “other income” article of such Tax treaty;


 


(2)            duly
completed, valid, executed copies of IRS Form W-8ECI (or successor form);


 






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(3)            in
the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the
Code, (x) a certificate substantially in the form of Exhibit C to the effect that such Foreign Lender is not a “bank”
within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the applicable Borrower
within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in
Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and (y) executed copies
of IRS Form W-8BEN (or successor form) or IRS Form W-8BEN-E (or successor form); or


 


(4)            to
the extent a Foreign Lender is not the beneficial owner, duly completed, valid, executed copies of IRS Form W-8IMY (or
successor form), accompanied by IRS Form W-8ECI (or successor form), IRS Form W-8BEN (or successor form), IRS
Form W-8BEN-E (or successor form), a U.S. Tax Compliance Certificate, IRS Form W-9 (or successor form),
and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a
partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such
Foreign Lender may provide a U.S. Tax Compliance Certificate on behalf of each such direct and indirect partner;


 


(C)            any
Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such
number of copies as shall be requested by the Recipient) on or prior to the date on which such Foreign Lender becomes a Lender
under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent),
executed copies of any other form prescribed by applicable Law as a basis for claiming exemption from or a reduction in U.S. Federal
withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable Law to permit
the Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and


 


(D)            if
a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender
were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or
1472(b) of the Code, as applicable), such Lender shall deliver to the Borrower and the Administrative Agent at the time or
times prescribed by Law and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation
prescribed by applicable Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation
reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent
to comply with its obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations
under FATCA or to determine the amount, if any, to deduct and withhold from such payment. Solely for purposes of this clause (D),
 “FATCA” shall include any amendments made to FATCA after the date of this Agreement.


 






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Each Recipient agrees that if any form
or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall promptly update such
form or certification or promptly notify the Borrower and the Administrative Agent in writing of its legal inability to do so.


 


(g)            Treatment
of Certain Refunds. If any party to this Agreement determines, in its sole discretion exercised in good faith, that it has
received a refund of any Taxes as to which it has been indemnified pursuant to this Section 5.03 (including by the payment
of additional amounts pursuant to this Section 5.03), it shall pay to the indemnifying party an amount equal to such refund
(but only to the extent of indemnity payments made under this Section with respect to the Taxes giving rise to such refund),
net of all out-of-pocket expenses (including Taxes) of such indemnified party and without interest (other than any interest
paid by the relevant Governmental Authority with respect to such refund). Such indemnifying party, upon the written request of
such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this paragraph (plus any penalties,
interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified party is required
to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this Section 5.03(g), in
no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this Section 5.03(g) the
payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party would
have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise
imposed and the indemnification payments or additional amounts giving rise to such refund had never been paid. This Section 5.03(g) shall
not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes
that it deems confidential) to the indemnifying party or any other Person.


 


(h)            Mitigation
Obligations. If the Borrower are required to pay any Indemnified Taxes or additional amounts to any Lender or to any Governmental
Authority for the account of any Lender pursuant to Section 5.01 or this Section 5.03, then such Lender shall (at the
request of the Borrower) use commercially reasonable efforts to designate a different lending office for funding or booking its
Term Loans hereunder or to assign and delegate its rights and obligations hereunder to another of its offices, branches or Affiliates
if, in the sole reasonable judgment of such Lender, such designation or assignment and delegation would (i) eliminate or reduce
amounts payable pursuant to Section 5.01 or this Section 5.03, as the case may be, in the future, (ii) not subject
such Lender to any unreimbursed cost or expense and (iii) not otherwise be disadvantageous to such Lender. The Borrower hereby
agree to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment and
delegation.


 


(i)            Survival.
Each party’s obligations under this Article 5 shall survive the resignation or replacement of the Administrative Agent
or any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction
or discharge of all Obligations under any Loan Document.


 


Section 5.04.     Delay
in Requests. Failure or delay on the part of any Lender to demand compensation pursuant
to this Article 5 shall not constitute a waiver of such Lender’s right to demand such compensation; provided
that the Borrower shall not be required to compensate a Lender pursuant to this Section for any increased costs incurred or
reductions suffered more than nine-months prior to the date that such Lender notifies the Borrower of the change in Law giving
rise to such increased costs or reductions, and of such Lender’s intention to claim compensation therefor (except that, if
the change in Law giving rise to such increased costs or reductions is retroactive, then the nine-month period referred to
above shall be extended to include the period of retroactive effect thereof).


 






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Article 6


 


Conditions
Precedent


 


Section 6.01.     Conditions
to Tranche A Term Loan; Closing Date. The obligation of each Lender to make the Tranche
A Term Loan on the Closing Date shall not become effective until the following conditions precedent shall have been reasonably
satisfied or waived in writing by the Lenders (which satisfaction or waiver may be made simultaneously with the making of the Tranche
A Term Loan hereunder):


 


(a)           Lien
Searches. The Lenders shall be satisfied with Lien searches regarding the Obligors made prior to the Closing Date.


 


(b)          Documentary
Deliveries. The Lenders shall have received the following documents, each of which shall be in form and substance reasonably
satisfactory to the Lenders:


 


(i)            Agreement.
This Agreement duly executed and delivered by the Borrower and each of the other parties hereto.


 


(ii)          Security
Documents. (A)  The Security Documents, including, without limitation, the Security Agreement, each Short-Form IP
Security Agreement, account control agreements and financing statements, each in form and substance satisfactory to the Lenders
and duly executed and delivered by each of the Obligors.


 


(iii)         The
Collateral Questionnaire, duly executed and delivered by a Responsible Officer of the Borrower, substantially in the form of Exhibit G
hereto and otherwise in form and substance satisfactory to the Lenders.


 


(iv)         Without
limitation, all other documents and instruments reasonably required to perfect the Lenders’ Lien on, and security interest
in, the Collateral required to be delivered on or prior to the Closing Date shall have been duly executed and delivered and be
in proper form for filing, and shall create in favor of the Lenders, a perfected Lien on, and security interest in, the Collateral,
subject to no Liens other than Permitted Liens.


 


(v)          Evidence
that each Obligor shall have taken or caused to be taken any other action, executed and delivered or caused to be executed and
delivered any other agreement, document and instrument (including without limitation, (i) a landlord personal property collateral
access agreement executed by the landlord of any leasehold property and by the applicable Obligor and (ii) any intercompany
notes evidencing Indebtedness permitted to be incurred pursuant to Section 9.01(e)) and made or caused to be made any other
filing and recording (other than as set forth herein) reasonably required by the Administrative Agent.


 






    	 	-40-	 



     


    

 


(vi)         Note.
Any Notes requested in accordance with Section 2.04.


 


(vii)       Organizational
Documents. (A) Certified copies of the Organizational Documents of each Obligor and of resolutions of the board of directors
(or similar governing body or committee of the board of directors, as applicable) of each Obligor approving and authorizing the
execution, delivery and performance of this Agreement and each of the other Loan Documents to which it is a party, certified as
of the Closing Date by its secretary or assistant secretary as being in full force and effect without modification or amendment;
(B) a good standing certificate and/or compliance certificate from the applicable Governmental Authority of each Obligor’s
jurisdiction of incorporation, dated a recent date prior to the Closing Date; and (C) such other documents as the Lenders
may reasonably request.


 


(viii)       Incumbency
Certificate. A certificate of each Obligor as to the authority, incumbency and specimen signatures of the persons who have
executed the Loan Documents and any other documents in connection herewith on behalf of the Obligors.


 


(ix)        Officer’s
Certificate. A certificate, dated as of the Closing Date and signed by a Responsible Officer of the Borrower, confirming compliance
with the conditions set forth in Section 6.01(g), (h) and (i).


 


(x)         Opinion
of Counsel. A favorable opinion, dated as of the Closing Date, of Morgan, Lewis & Bockius LLP, counsel to each Obligor
in form reasonably acceptable to the Lenders and their counsel.


 


(xi)         Evidence
of Insurance. Certificates from each Obligor’s insurance broker or other evidence satisfactory to the Lenders that all
insurance required to be maintained pursuant to Section 8.05 is in full force and effect, together with endorsements naming
the Administrative Agent as additional insured and loss payee, as applicable, under such Obligor’s liability and casualty
insurance policies.


 


(c)            Due
Diligence. The Lenders shall have received and be satisfied with all due diligence regarding the Obligors (including without
limitation historical financial statements, technical, operational, legal, intellectual property, commercial market forecasts,
clinical and regulatory assessments, supply chain, securities, labor, Tax, litigation, environmental, reimbursement and regulatory
authority matters) in their sole discretion.


 






    	 	-41-	 



     


    

 


(d)            Indebtedness.
As of the Closing Date, after giving effect to the Transactions, no Obligor shall have any Indebtedness other than the Obligations
and any Indebtedness specified on Schedule 9.01. All amounts due or outstanding in respect of any Indebtedness other than
the Obligations and any Indebtedness specified on Schedule 9.01 shall have been repaid in full, all commitments (if any) in
respect thereof terminated, all guarantees (if any) thereof discharged and released and all security therefor (if any) released,
together with all fees and other amounts owing thereon, or documentation in form and substance reasonably satisfactory to the Lenders
to effect such release upon such repayment and termination shall have been delivered to the Lenders.


 


(e)            Closing
Fees, Expenses, Etc. The Lenders and their Affiliates shall have received for their own account, the Closing Fee and all fees,
costs and expenses due (including applicable attorney costs and the reasonable and documented out-of-pocket fees and expenses
of any other advisors to the Lenders) and payable pursuant to Section 13.03, after deducting therefrom the Expense Deposit.


 


(f)            Warrants.
The Administrative Agent shall have received the executed Warrants, dated as of the Closing Date.


 


(g)           Representations
and Warranties. The representations and warranties of the Obligors contained in Article 7 or any other Loan Document shall
be true and correct in all material respects on and as of the Closing Date; provided that to the extent that such representations
and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier
date; provided further that any representation and warranty that is qualified as to “materiality”, “Material
Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects.


 


(h)            No
Default. No Default shall exist, or would result from such proposed borrowing of the Tranche A Term Loan or from the application
of the proceeds therefrom.


 


(i)            Approvals.
All Governmental Approvals shall have been made or obtained, and all material licenses, consents, authorizations and approvals
of, and notices to and filings and registrations with, any Governmental Authority (including all foreign exchange approvals) necessary
for the Transactions shall have been made or obtained, and all material third-party consents and approvals, necessary in connection
with the execution, delivery and performance by the Obligors of the Loan Documents and the Transactions shall have been obtained.


 


Section 6.02.     Conditions
to Tranche B Term Loan; Tranche B Term Loan Borrowing Date. The obligation of each Lender
to make the Tranche B Term Loan on the Tranche B Term Loan Borrowing Date shall not become effective until the following conditions
precedent shall have been reasonably satisfied or waived in writing by the Lenders (which satisfaction or waiver may be made simultaneously
with the making of the Tranche B Term Loan hereunder):


 






    	 	-42-	 



     


    

 


(a)            Borrowing
Certificate. The Administrative Agent shall have received a Borrowing Notice duly executed by a Responsible Officer of the
Borrower.


 


(b)            Representations
and Warranties. The representations and warranties of the Obligors contained in Article 7 or any other Loan Document shall
be true and correct in all material respects on and as of the Tranche B Term Loan Borrowing Date; provided that to the extent
that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material
respects as of such earlier date; provided further that any representation and warranty that is qualified as to “materiality”,
 “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein)
in all respects.


 


(c)            No
Default. No Default shall exist, or would result from such proposed Borrowing or from the application of the proceeds therefrom.


 


(d)           Milestone.
The Borrower shall have, on or prior to the Tranche B Term Loan Commitment Termination Date, received FDA approval for Twirla (AG200-15)
as a once-weekly combined hormonal contraception patch.


 


Section 6.03.     Conditions
to Tranche C Term Loan; Tranche C Term Loan Borrowing Date. The obligation of each Lender
to make the Tranche C Term Loan on the Tranche C Term Loan Borrowing Date shall not become effective until the following conditions
precedent shall have been reasonably satisfied or waived in writing by the Lenders (which satisfaction or waiver may be made simultaneously
with the making of the Tranche C Term Loan hereunder):


 


(a)            Borrowing
Certificate. The Administrative Agent shall have received a Borrowing Notice duly executed by a Responsible Officer of the
Borrower.


 


(b)            Representations
and Warranties. The representations and warranties of the Obligors contained in Article 7 or any other Loan Document shall
be true and correct in all material respects on and as of the Tranche C Term Loan Borrowing Date; provided that to the extent
that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material
respects as of such earlier date; provided further that any representation and warranty that is qualified as to “materiality”,
 “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein)
in all respects.


 


(c)            No
Default. No Default shall exist, or would result from such proposed Borrowing or from the application of the proceeds therefrom.


 


(d)            Milestone.
Product Revenue related to sales of Twirla (AG200-15) for the twelve (12) consecutive calendar months most recently ended prior
to the Tranche C Term Loan Borrowing Date shall not be less than $20,000,000.


 






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Article 7


 


Representations
and Warranties


 


In order to induce
the Lenders to enter into this Agreement and to extend the Term Loans hereunder, each Obligor represents and warrants to the Lenders
and the Administrative Agent, on the Closing Date, on the Tranche B Term Loan Borrowing Date and on the Tranche C Term Loan Borrowing
Date, that the following statements are true and correct:


 


Section 7.01.     Power
and Authority. Each Obligor and each of its Subsidiaries (a) is duly organized, validly
existing and in good standing under the laws of its jurisdiction of organization, (b) has all requisite corporate (or equivalent)
power, and has all material governmental licenses, authorizations, consents and approvals necessary to own its assets and carry
on its business as now being or as proposed to be conducted except to the extent that failure to have the same would not reasonably
be expected to have a Material Adverse Effect, (c) is qualified to do business and is in good standing in all jurisdictions
in which the nature of the business conducted by it makes such qualification necessary except where failure to so qualify would
not (either individually or in the aggregate) reasonably be expected to have a Material Adverse Effect, and (d) has full power,
authority and legal right to make and perform each of the Loan Documents and, in the case of the Borrower, to borrow the Term Loans
hereunder.


 


Section 7.02.     Authorization;
Enforceability. The Transactions are within each Obligor’s corporate (or equivalent)
powers and have been duly authorized by all necessary corporate (or equivalent) action and, if required, by all necessary shareholder
or other equity holder action. The Loan Documents have been duly executed and delivered by each Obligor party thereto and constitute,
and each of the other Loan Documents to which it is a party when executed and delivered by such Obligor will constitute, a legal,
valid and binding obligation of such Obligor, enforceable against each Obligor in accordance with its terms, except as such enforceability
may be limited by (a) bankruptcy, insolvency, reorganization, moratorium or similar laws of general applicability affecting
the enforcement of creditors’ rights and (b) the application of general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law).


 


Section 7.03.     Governmental
and Other Approvals; No Conflicts. The Transactions (a) do not require any consent
or approval of, registration or filing with, or any other action by, any Governmental Authority or any other Person, except for
(i) such as have been obtained or made and are in full force and effect and (ii) filings and recordings in respect of
perfecting or recording the Liens created pursuant to the Security Documents, (b) will not violate any applicable Requirement
of Law or the Organizational Documents of any Obligor or any applicable order of any Governmental Authority, in each case, other
than any such violations that, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect,
(c) will not violate or result in a default under any Material Agreement, or give rise to a right thereunder to require any
payment to be made by any such Person, and (d) will not result in the creation or imposition of any Lien (other than Permitted
Liens) on any asset of any Obligor or any of its Subsidiaries.


 






    	 	-44-	 



     


    

 


Section 7.04.     Financial
Statements; Material Adverse Change.


 


(a)              Financial
Statements. The Borrower has heretofore furnished to the Administrative Agent certain financial statements as provided for
in Section 8.01. Such financial statements present fairly, in all material respects, the financial position and results of
operations and cash flows of the Obligors as of such dates and for such periods substantially in accordance with GAAP, subject
to quarterly or year-end adjustments and the absence of footnotes. No Obligor has any material contingent liabilities or liabilities
for taxes, long-term lease or unusual forward or long-term commitments not disclosed in the aforementioned financial statements.


 


(b)            No
Material Adverse Change. Since December 31, 2018 no event, circumstance or change has occurred that has caused or evidences,
either in individually or in the aggregate, a Material Adverse Change.


 


Section 7.05.     Properties.


 


(a)            Property
Generally. Each Obligor and each of its Subsidiaries has good and marketable fee simple title to, or valid leasehold interests
in, all its real and personal Property material to its business, including all Product Assets, subject only to Permitted Liens
and except as would not reasonably be expected to interfere with its ability to conduct its business as currently conducted or
to utilize such properties for their intended purposes.


 


(b)           Intellectual
Property.


 


(i)           Schedule 7.05(b) lists,
with respect to each Obligor, all United States and foreign registrations of and applications for Patents, Trademarks and Copyrights,
that are Obligor Intellectual Property, including the applicable jurisdiction, registration or application number and date, as
applicable thereto, a designation as to whether it is Material Intellectual Property, and a designation as to whether it is licensed
or owned by an Obligor.


 


(ii)          Each
Obligor (A) owns or possesses all legal and beneficial rights, title and interest in and to the Material Intellectual Property
designated on Schedule 7.05(b) as being owned by such Obligor and (B) has the right to use the Material Intellectual
Property licensed to such Obligor, in each case with good and marketable title, free and clear of any Liens or Claims of any kind
other than Permitted Liens.


 


(iii)         To
each Obligor’s Knowledge, the Material Intellectual Property does not violate any license or infringe any valid and enforceable
Intellectual Property right of another.


 


(iv)         Other
than with respect to the Material Agreements, or as permitted by this Agreement, the Obligors have not assigned or otherwise transferred
ownership of, or agreed to assign or otherwise transfer ownership of, any Material Intellectual Property, in whole or in part,
to any Person who is not an Obligor.


 






    	 	-45-	 



     


    

 


(v)         Other
than as set forth on Schedule 7.05(b), the Obligors have not received any written communications, nor is there any pending
or, to each Obligor’s Knowledge, threatened action in writing, suit, proceeding or claim in writing by another, alleging
that any of the Obligors has violated, infringed, diluted or misappropriated any Intellectual Property of another.


 


(vi)        There
is no pending or, to any Obligor’s Knowledge, threatened action in writing, suit, proceeding or claim in writing by another:
(a) challenging an Obligor’s rights in or to any Material Intellectual Property owned by such Obligor; or (b) challenging
the validity, enforceability or scope of any Material Intellectual Property owned by an Obligor.


 


(vii)       Each
Obligor has taken commercially reasonable precautions to protect the secrecy, confidentiality and value of the Material Intellectual
Property (including without limitation, by requiring that all relevant current and former employees, contractors and consultants
of the Obligors execute written confidentiality and invention assignment Contracts).


 


(viii)      Each
Obligor has complied with the material terms of each Material Agreement pursuant to which Intellectual Property has been licensed
to the Obligors (which material terms shall include, but not be limited to, pricing and duration of the agreement).


 


(ix)         All
maintenance fees, annuities, and the like due or payable on the Patents within Material Intellectual Property have been timely
paid or the failure to so pay was the result of an intentional decision by the applicable Obligor, which would not reasonably
be expected to result in a Material Adverse Change. All documents and instruments necessary to register or apply for or renew
registration of all Patents, Trademarks and Copyrights within Material Intellectual Property have been validly executed, delivered
and filed in a timely manner with the United States Patent and Trademark Office or the United States Copyright Office, as applicable.


 


(x)          To
each Obligor’s Knowledge, (A) each of the Patents within the Material Intellectual Property is valid and enforceable
and (B) no such Patents within the Material Intellectual Property have ever been finally adjudicated to be invalid, unpatentable
or unenforceable for any reason in any administrative, arbitration, judicial or other proceeding.


 


(xi)         To
each Obligor’s Knowledge, no Obligor has received any written notice asserting that the Patents within the Material Intellectual
Property are invalid, unpatentable or unenforceable and, to each Obligor’s Knowledge, no Obligor has engaged in any conduct,
or omitted to perform any necessary act, the result of which would invalidate or render unpatentable or unenforceable any such
Patent within the Material Intellectual Property.


 






    	 	-46-	 



     


    

 


(xii)          Each
employee and consultant has signed a written agreement assigning to the applicable Obligor all intellectual property rights that
are related to such Obligor’s business as now conducted and as presently proposed to be conducted and confidentiality provisions
protecting trade secrets and confidentiality information of the Obligors.


 


(xiii)        To
the Knowledge of each Obligor, no third party is infringing upon or misappropriating, or violating any material license or agreement
with such Obligor relating to any Material Intellectual Property.


 


Section 7.06.     No
Actions or Proceedings.


 


(a)            Litigation.
There is no litigation, investigation or enforcement proceeding pending or threatened in writing with respect to any Obligor by
or before any Governmental Authority or arbitrator (i) that either individually or in the aggregate would reasonably be expected
to have a Material Adverse Effect or (ii) that involves this Agreement or the Transactions.


 


(b)            Environmental
Matters. The operations and the real Property of the Obligors comply with all applicable Environmental Laws, except to the
extent the failure to so comply, either individually or in the aggregate, would not reasonably be expected to have a Material Adverse
Effect. To each Obligor’s Knowledge, there have been no conditions, occurrences or release of Hazardous Materials which would
reasonably be expected to have a Material Adverse Effect.


 


(c)            Labor
Matters. No Obligor has engaged in unfair labor practices and there are no pending or, to any Obligor’s Knowledge, threatened
in writing labor actions, disputes, grievance or arbitration proceedings involving the employees of any Obligor, in each case that
would reasonably be expected to have a Material Adverse Effect. There is no material strike or work stoppage in existence
or threatened in writing against any Obligor and to the Knowledge of such Obligor, no union organization activity is taking place.


 


Section 7.07.     Compliance
with Laws and Agreements. (a) Each Obligor is in compliance with all Requirements
of Law (including Healthcare Laws and Environmental Laws) and all Contracts binding upon it or its Property, except (other than
with respect to Material Intellectual Property) where the failure to do so, individually or in the aggregate, would not reasonably
be expected to result in a Material Adverse Effect.


 


(b)    Without
limiting the generality of the foregoing:


 


(i)            To
the best of each Obligor’s Knowledge, any financial relationships between or among the Borrower, any other Obligor, or any
of their respective Subsidiaries, on the one hand, and any Person who is in a position to refer patients or other business to the
Borrower, any other Obligor or any Subsidiaries (collectively a “Referral Source”), on the other hand, (A) comply
in all material respects with all applicable Healthcare Laws, (B) reflect fair market value, have commercially reasonable
terms and were negotiated at arm’s length; and (C) do not obligate the Referral Source to purchase, use, recommend or
arrange for the use of any products or services of the Borrower, any other Obligor, or any of their respective Subsidiaries. No
Obligor, nor any of its respective Subsidiaries, directly or indirectly, have guaranteed a loan, made a payment toward a loan or
otherwise subsidized a loan for any Referral Source including, without limitation, any loans related to financing the Referral
Source’s ownership, investment or financial interest in any Obligor or any such Subsidiary.


 






    	 	-47-	 



     


    

 


(ii)            All
Products have been developed, tested, manufactured, distributed, marketed and sold in compliance in all material respects with
all applicable FDA Laws, including, without limitation and to the extent applicable to the Obligors, all requirements relating
to current good manufacturing practices and quality system regulations (21 CFR Parts 210, 211, and 820), labeling, advertising,
record-keeping, and adverse event reporting.


 


(iii)            To
the extent required under applicable Law, the Borrower, each other Obligor, and each of their respective Subsidiaries are in compliance
in all material respects with the Physician Payments Sunshine Act (Section 6002 of the Affordable Care Act of 2010) and its
implementing regulations and any applicable state disclosure and transparency laws.


 


(c)            To
the extent any Obligor or Subsidiary thereof shall participate or receive as an enrolled service provider direct reimbursement
from any Federal Health Care Program or other third-party payor program as of any date subsequent to the Closing Date, (i) each
Obligor and each Subsidiary shall have the requisite provider number or authorization necessary to bill any third-party payor
program in which it participates and (ii) there shall be no audits, inquiries, adjustments, appeals or recoupment efforts
by any third-party payor programs of or against any Obligor or Subsidiary with respect to any prior claims, reports or billings
that, individually or in the aggregate, would reasonably be expected to result in a Material Adverse Effect.


 


(d)            No
Obligor or Subsidiary thereof is aware of any written complaints or has received telephonic complaints via a compliance hotline
related to a Product from any employees, independent contractors, vendors, physicians, customers, patients or other persons that
could reasonably be considered to indicate a violation of Healthcare Laws which would be reasonably expected to result individually,
or in the aggregate, in a Material Adverse Effect.


 


Section 7.08.     Taxes.
Each Obligor has timely filed or caused to be filed all federal income and other material Tax returns and reports required to have
been filed and has paid or caused to be paid all federal income and other material Taxes required to have been paid by it, except
Taxes that are being contested in good faith by appropriate proceedings and for which such Obligor has set aside on its books adequate
reserves with respect thereto substantially in accordance with GAAP.


 


Section 7.09.     Full
Disclosure. The Borrower has disclosed to the Lenders all Material Agreements to which
any Obligor is party, and all other matters to its Knowledge, that, individually or in the aggregate, would reasonably be expected
to result in a Material Adverse Effect. None of the reports, financial statements, certificates or other information furnished
by or on behalf of the Obligors to the Lenders in connection with the negotiation of this Agreement and the other Loan Documents
or delivered hereunder or thereunder (as modified or supplemented by other information so furnished) contains any material misstatement
of material fact or omits to state any material fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided that, with respect to projected financial information, the Borrower
represents only that such information was prepared in good faith based upon assumptions believed to be reasonable at the time (it
being understood by the Administrative Agent and the Lenders that such projected financial information is not to be viewed as facts,
and that no assurances can be given that any particular projections will be realized and that actual results during the period
or periods covered by any such projections may differ from the projected results and such differences may be material).


 






    	 	-48-	 



     


    

 


Section 7.10.    Regulation.


 


(a)            Investment
Company Act. No Obligor is an “investment company” as defined in, or subject to regulation under, the Investment
Company Act of 1940.


 


(b)            Margin
Stock. No Obligor is engaged principally, or as one of its important activities, in the business of extending credit for the
purpose, whether immediate, incidental or ultimate, of buying or carrying Margin Stock and no part of the proceeds of the Term
Loans will be used to buy or carry any Margin Stock in violation of Regulation T, U or X.


 


Section 7.11.    Solvency.
Each Obligor is, and, immediately after giving effect to the Borrowings, the use of proceeds
thereof, and the consummation of the Transactions, will be, Solvent.


 


Section 7.12.    Subsidiaries.
Except as set forth on Schedule 7.12 (as such Schedule may be updated by the Borrower from time to time), the Borrower has
no direct or indirect Subsidiaries.


 


Section 7.13.   [Intentionally
Omitted]


 


Section 7.14.   Material
Agreements. Set forth on Schedule 7.14 (as such Schedule may be updated by the Borrower
from time to time) is a complete and correct list of (i) each Material Agreement and (ii) each Contract creating or evidencing
any Material Indebtedness, together with a summary reference to the product or purpose of each such Material Agreement and such
Contract, to which an Obligor is a party. Accurate and complete copies of each such Contract listed on such schedule have been
made available to the Lenders to the extent requested by such Lenders. No Obligor is in material default under any such Material
Agreement or such Contract creating or evidencing any Material Indebtedness listed on such schedule, and the Obligors have no Knowledge
of any material default by any counterparty to such Material Agreement or such Contract.


 


Section 7.15.   Restrictive
Agreements. None of the Obligors is party to any Restrictive Agreement, except (i) otherwise
permitted under Section 9.11, (ii) restrictions and conditions imposed by Law or by the Loan Documents, (iii) any
stockholder agreement, charter, by laws or other organizational documents of an Obligor and (iv) limitations associated with
Permitted Liens.


 






    	 	-49-	 



     


    

 


Section 7.16.   Real
Property. No Obligor or any of its Subsidiaries owns or leases (as tenant thereof) any
real Property on the date hereof, except as described on Schedule 7.16 (as such Schedule may be updated by the Borrower from
time to time).


 


Section 7.17.   Pension
and Other Plans. Except for those that would not, in the aggregate, have a Material Adverse
Effect, (i) each Benefit Plan, and each trust thereunder, intended to qualify for Tax exempt status under Section 401
or 501 of the Code or other Requirements of Law so qualifies, (ii) each Benefit Plan is in compliance with applicable provisions
of ERISA, the Code and other Requirements of Law, (iii) there are no existing or pending (or to the Knowledge of any Obligor
or Subsidiary thereof, threatened) claims (other than routine claims for benefits in the normal course), sanctions, actions, lawsuits
or other proceedings or investigation involving any Benefit Plan to which any Obligor or Subsidiary thereof incurs or otherwise
has or would have an obligation or any liability or Claim (iv) no ERISA Event has occurred or is reasonably expected to occur,
(v) no ERISA Affiliate would have any Withdrawal Liability as a result of a complete withdrawal from any Multiemployer Plan
on the date this representation is made, and (vi) there are no actions, suits or claims pending against or involving a Benefit
Plan (other than routine claims for benefits) or, to the Knowledge of each of the Obligors, threatened, which would reasonably
be expected to be asserted successfully against any Benefit Plan.


 


Section 7.18.   Collateral;
Security Interest. Each Security Document is effective to create in favor of the Administrative
Agent for the benefit of the Lenders a legal, valid and enforceable security interest in the Collateral subject thereto and each
such security interest is perfected to the extent required by (and has the priority required by) the applicable Security Document,
subject to Permitted Liens. The Security Documents collectively are effective to create in favor of the Administrative Agent for
the benefit of the Lenders a legal, valid and enforceable security interest in the Collateral, which upon the filing of financing
statements and other similar statements filed in the appropriate offices, such security interests are perfected security interests
to the extent that such perfection may be obtained by such filing.


 


Section 7.19.   Regulatory
Approvals. (a) With respect to the Products, each Obligor and each of its Subsidiaries
holds either directly or through licensees and agents, all material Regulatory Approvals and Permits necessary or required for
each Obligor and its Subsidiaries to conduct all Product Development and Commercialization Activities with respect to the Products.


 


(b)     Set
forth on Schedule 7.19(b) is a complete and accurate list as of the date hereof of all Regulatory Approvals referred
to in clause (a) above, setting forth (on a per Product basis) the Obligor that holds such Regulatory Approval and identifying
the Product related to such Regulatory Approval. All such Regulatory Approvals are (i) legally and beneficially owned exclusively
by the Obligor identified on the Schedule, free and clear of all Liens other than Permitted Liens, (ii) validly registered
and on file with the applicable Regulatory Authority, in material compliance with all registration, filing and maintenance requirements
(including any fee requirements) thereof, and (iii) in good standing, valid and enforceable with the applicable Regulatory
Authority. All required material notices, registrations and listings, supplemental applications, reports (including, to the extent
applicable to the Obligors, annual reports, field alerts or other reports of adverse experiences) and all other required material
filings with respect to the Products or any related Product Development and Commercialization Activities have been filed with the
FDA and all other applicable Governmental Authorities.


 






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(c)            (i) All
material regulatory filings required by any Regulatory Authority or in respect of any Regulatory Approval or Product Authorization
with respect to any Product or any Product Development and Commercialization Activities are, to the Borrower’s Knowledge,
complete and correct in all material respects and have complied in all material respects with all applicable Requirements of Law,
and (ii) all clinical and pre-clinical trials, if any, of investigational Products have been and are being conducted by
each Obligor according to all applicable Requirements of Law in all material respects along with appropriate monitoring of clinical
investigator trial sites for their compliance.


 


(d)            Each
Obligor and, to each Obligor’s Knowledge, each of its agents and Contract Manufacturers are in compliance in all material
respects with all applicable statutes, rules and regulations (including all Regulatory Approvals and Product Authorizations)
of all applicable Governmental Authorities, including the FDA and all other Regulatory Authorities, with respect to each Product
and all Product Development and Commercialization Activities related thereto. Each Obligor and, to each Obligor’s Knowledge,
each Contract Manufacturer has and maintains in full force and effect all the necessary and requisite material Regulatory Approvals
and Product Authorizations for the conduct of their current operations as of the date hereof. To the extent applicable, each Obligor
is in compliance in all material respects with all applicable registration and listing requirements set forth in all applicable
FDA Laws or equivalent regulation of each other Governmental Authority having jurisdiction over such Person. Each Obligor, and,
to each Obligor’s Knowledge, each Contract Manufacturer adheres in all material respects to all applicable regulations of
all Regulatory Authorities with respect to the Products and all Product Development and Commercialization Activities related thereto.


 


(e)            (i) No
Obligor and, to each Obligor’s Knowledge, no Contract Manufacturer has received from any Regulatory Authority any material
notice of adverse findings with respect to any Product or any Product Development and Commercialization Activities related thereto,
including any FDA Form 483 inspectional observations, notices of violations, Warning Letters, criminal proceeding notices
under Section 305 of the FD&C Act, or any other similar communication from any Regulatory Authority, (ii) there have
been no material seizures conducted or, to each Obligor’s Knowledge, threatened by any Regulatory Authority with respect
to any Product, and no material recalls, market withdrawals, field notifications, notifications of misbranding or adulteration
or safety alerts conducted, requested or, to any Obligor’s Knowledge, threatened by any Regulatory Authority with respect
to any Product, and (iii) no Obligor and, to each Obligor’s Knowledge, no Contract Manufacturer has received any material
written notification that remains unresolved from the FDA or any other Regulatory Authority indicating any breach or violation
of any applicable Product Authorization or Regulatory Approval relating to any Product, including that any of the Products is misbranded
or adulterated as defined in the FD&C Act or the rules and regulations promulgated thereunder.


 


(f)            Neither
any Obligor nor, to any Obligor’s Knowledge, any officer, employee or agent thereof or Contract Manufacturer, has made an
untrue statement of a material fact or fraudulent statements to the FDA or any other Regulatory Authority, failed to disclose a
material fact required to be disclosed to the FDA or any other Regulatory Authority, or committed an act, made a statement, or
failed to make a statement that, at the time such disclosure was made (or was not made), would reasonably be expected to provide
a basis for the FDA or any other Regulatory Authority to invoke its policy respecting Fraud, Untrue Statements of Material Facts,
Bribery and Illegal Gratuities, set forth in 56 Fed. Reg. 46191 (September 10, 1991) or any similar policy.


 






    	 	-51-	 



     


    

 


(g)            No
Obligor has received any material written notice that the FDA or any other applicable Regulatory Authority has commenced or initiated,
or, to the Knowledge of any such Obligor, threatened to commence or initiate, any action to withdraw any Regulatory Approval or
Product Authorization or commenced or initiated or, to the Knowledge of such Obligor, threatened to commence or initiate, any action
to enjoin any Product Development and Commercialization Activities of such Obligor or any Contract Manufacturer.


 


(h)            The
clinical, preclinical, safety and other studies and tests conducted by or on behalf of or sponsored by each Obligor, or in respect
of which any Products or Product candidates under development have participated, were (and if still pending, are) being conducted
materially in accordance with all applicable Product Authorizations. Each Obligor has operated within, and currently is in compliance
in all material respects with, all applicable Laws, Product Authorizations and Regulatory Approvals, as well as the rules and
regulations of the FDA and each other Regulatory Authority. No Obligor has received any material notices or other correspondence
from the FDA or any other Regulatory Authority requiring the termination or suspension of any clinical, preclinical, safety or
other studies or tests used to support any Product Authorization or Regulatory Approval for, any Product.


 


(i)              No
material debarment or exclusionary claims, actions, proceedings or investigations in respect of any Obligor’s business is
pending, or to such Obligor’s Knowledge, threatened in writing against such Obligor or its officers, employees or agents.


 


Section 7.20.   Capitalization.
All of the issued and outstanding securities of each Obligor have been duly authorized, are validly issued, fully paid, and non-assessable.
As of the Closing Date, except for the Warrants and except as set forth on Schedule 7.20, there are no outstanding or authorized
options, warrants, purchase rights, subscription rights, conversion rights, exchange rights, or other contracts or commitments
that could require the Obligors to issue, sell, or otherwise cause to become outstanding any of their ownership interests. There
are no outstanding or authorized stock appreciation, phantom stock, profit participation, or similar rights with respect to the
Obligors. There are no voting trusts, proxies, or other agreements or understandings with respect to the voting of the ownership
interests of the Obligors. None of the Equity Interests in the Obligors have been mortgaged, assigned or pledged in favor of any
Person, other than pursuant to the Security Agreement.


 


Section 7.21.   Insurance.
Each Obligor has obtained (and is maintaining), insurance for its assets (including the
Collateral) and business as required under the Loan Documents.


 


Section 7.22.   [Intentionally
Omitted]


 






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Section 7.23.     Sanctions
Laws. Obligors and, to the Knowledge of the Obligors, any director, officer or employee
of an Obligor acting on behalf of the Obligors, are in compliance with the Sanctions Laws.


 


Section 7.24.     Anti-Corruption
Laws. No Obligor nor any of its Subsidiaries has, nor, to the Knowledge of any Obligor,
has any director, officer, agent or employee of any Obligor acting on behalf of such Obligor (i) taken any action, directly
or indirectly, that would result in a violation by such Persons of the Anti-Corruption Laws, (ii) made, offered to make,
promised to make or authorized the payment or giving of, directly or indirectly, any Prohibited Payment or (iii) been subject
to any investigation by any Governmental Authority with regard to any actual or alleged Prohibited Payment.


 


Section 7.25.     Anti-Terrorism
Laws. The Obligors (i) have taken reasonable measures to ensure compliance with applicable
Economic Sanctions Laws and Anti-Terrorism Laws, (ii) are not Designated Persons and (iii) have not used any part
of the proceeds from any advance on behalf of any Designated Person or has not used, directly by it or indirectly through any Subsidiary,
such proceeds in connection with any investment in, or any transactions or dealings with, any Designated Person.


 


Article 8


 


Affirmative
Covenants and Financial Covenants


 


Each Obligor covenants
and agrees with the Lenders that, until the Commitments have expired or been terminated and all Obligations (other than the Warrant
Obligations and inchoate indemnity obligations) have been paid in full in cash:


 


Section 8.01.     Financial
Statements and Other Information. The Borrower will furnish to the Administrative Agent
for distribution to the Lenders:


 


(a)            commencing
with the fiscal quarter ended March 31, 2020, as soon as available and in any event within forty-five (45) days after
the end of each fiscal quarter, the consolidated balance sheets of the Borrower and its Subsidiaries as of the end of such quarter,
and the related consolidated statements of income and cash flows of the Borrower and its Subsidiaries for such quarter and the
portion of the fiscal year through the end of such quarter, all in reasonable detail and setting forth in comparative form the
figures for the corresponding period in the preceding fiscal year, together with a certificate of a Responsible Officer of the
Borrower stating that such financial statements fairly present in all material respects the financial condition of the Borrower
and its Subsidiaries as at such date and the results of operations of the Borrower and its Subsidiaries for the period ended on
such date and have been prepared substantially in accordance with GAAP consistently applied, subject to changes resulting from
normal quarterly or year-end adjustments and except for the absence of footnotes; provided that, if Borrower is a Publicly
Reporting Company, Borrower’s filing of a Quarterly Report on Form 10-Q with the SEC shall be deemed to satisfy the
requirements of this Section 8.01(a) on the date on which such report is first available via the SEC’s EDGAR system
or a successor system related thereto;


 






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(b)           as
soon as available and in any event within ninety (90) days after the end of each fiscal year, the consolidated balance sheets of
the Borrower and its Subsidiaries as of the end of such fiscal year, and the related consolidated statements of income, shareholders’
equity and cash flows of the Borrower and its Subsidiaries for such fiscal year, prepared substantially in accordance with GAAP
consistently applied, all in reasonable detail and setting forth in comparative form the figures for the previous fiscal year,
accompanied by a report and opinion thereon of Ernst & Young LLP or another firm of independent certified public accountants
of recognized national standing, which report and opinion shall be prepared in accordance with generally accepted auditing standards
and shall not be subject to any “going concern” or like qualification or exception or any qualification or exception
as to the scope of such audit; provided that, if Borrower is a Publicly Reporting Company, Borrower’s filing of an
Annual Report on Form 10-K with the SEC shall be deemed to satisfy the requirements of this Section 8.01(b) on the
date on which such report is first available via the SEC’s EDGAR system or a successor system related thereto;


  


(c)           within
thirty (30) days after the end of each month, a compliance certificate of a Responsible Officer of the Borrower as of the
end of the applicable accounting period (which delivery may, unless a Lender requests executed originals, be by electronic communication
including email and shall be deemed to be an original authentic counterpart thereof for all purposes) in the form of Exhibit D
(a “Compliance Certificate”) which, for purposes of clarification, shall (i) demonstrate the Borrower’s
compliance with Section 8.15 in respect of such month, (ii) state that the representations and warranties made by the
Obligors in Article 7 are true in all material respects on and as of the date thereof; provided that to the extent
that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material
respects as of such earlier date; provided further that any representation and warranty that is qualified as to “materiality”,
 “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein)
in all respects, (iii) include details of any issues that are material that are raised by auditors, (iv) for each month
end that coincides with the end of a fiscal quarter of the Borrower, demonstrate the Borrower’s compliance with Section 8.16
in respect of such fiscal quarter and (v) for each month end that coincides with the end of a fiscal year of the Borrower,
provide updated Schedules to this Agreement (if any);


 


(d)           promptly,
and in any event within ten (10) Business Days after receipt thereof by an Obligor thereof, copies of each notice or
other correspondence received from any securities regulator or exchange to the authority of which an Obligor is subject concerning
any investigation or possible investigation or other inquiry by such agency regarding financial or other operational results of
such Obligor;


 


(e)           upon
any renewal or replacement, the information regarding insurance maintained by Obligors as required under Section 8.05;


 


(f)            promptly
following the Lenders’ written request at any time, proof of compliance with Section 8.15;


 



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(g)           within
ten (10) days of delivery, copies of all periodic reports distributed by the Borrower to its shareholders generally;
provided that (i) any such material may be redacted by the Borrower to exclude information relating to the Loan Documents
or the Lenders and (ii) the Lenders shall not be entitled to receive statements, reports and notices relating to topics that
(A) are subject to attorney-client privilege or (B) present a conflict of interest for the Lenders;


  


(h)           a
financial forecast for Borrower and its Subsidiaries for each fiscal year, including forecasted balance sheets, statements of income
and cash flows of Borrower and its Subsidiaries, all of which shall be prepared on a consolidated basis and delivered not later
than February 28 of such fiscal year (the “Financial Forecast”);


 


(i)            promptly
following any Lender’s written request, certification that such Obligor is not a passive foreign investment company (“PFIC”)
within the meaning of Sections 1291 through 1297 of the Code, or, if such Obligor determines that it is a PFIC, such information
as would allow the Lender to make a qualified electing fund election with respect to the stock of the Obligor;


 


(j)           such
other information respecting the operations, properties, business or condition (financial or otherwise) of the Obligors (including
with respect to the Collateral) as the Lenders may from time to time reasonably request, including, without limitation, projected
financial statements of the Borrower and its Subsidiaries;


 


(k)           promptly
after the receipt thereof, a copy of any “management letter” received from its certified public accounts and the management’s
response thereto; and


 


(l)            promptly
after receipt or providing thereof, copies of any notice of an event of default received from or provided to any lenders in respect
of any Indebtedness permitted under Section 9.01(l).


 


Section 8.02.     Notices
of Material Events. The Borrower will furnish to the Administrative Agent for distribution
to the Lenders written notice of the following promptly after a Responsible Officer first learns of the existence of:


 


(a)           the
occurrence of any Default or Event of Default;


 


(b)           the
occurrence of any Casualty Event with respect to any Obligor’s Property resulting in a Loss, to the extent not covered by
insurance, aggregating $500,000 or more;


 


(c)           (i) any
proposed Acquisition by any Obligor that would reasonably be expected to result in environmental liability under Environmental
Laws in excess of $500,000, and (ii) in each case, to the extent that any of the following would reasonably be expected to
result in liability in excess of $500,000: (A) spillage, leakage, discharge, disposal, leaching, migration or release of any
Hazardous Material required to be reported to any Governmental Authority under applicable Environmental Laws, and (B) all
actions, suits, claims, notices of violation, hearings, investigations or proceedings pending, or threatened in writing against
or affecting any Obligor or any of its Subsidiaries or with respect to the ownership, use, maintenance and operation of their respective
businesses, operations or properties, relating to Environmental Laws or Hazardous Material;


 



    	 	-55-	 



     


    




 


(d)            the
assertion of any environmental matter by any Person in writing against, or with respect to the activities of, any Obligor or any
of its Subsidiaries and any alleged violation of or non-compliance with any Environmental Laws or any permits, licenses or
authorizations, in each case, which would reasonably be expected to involve damages in excess of $500,000 other than any environmental
matter or alleged violation that, if adversely determined, would not (either individually or in the aggregate) have a Material
Adverse Effect;


 


(e)            the
filing or commencement of any action, suit or proceeding by or before any arbitrator or Governmental Authority against or directly
affecting any Obligor or any of its Subsidiaries, in each case, that would reasonably be expected to result in a Material Adverse
Effect;


 


(f)            (i) on
or prior to any filing by any ERISA Affiliate of any notice of intent to terminate any Title IV Plan, a copy of such notice
and (ii) promptly, and in any event within ten (10) days, after any Responsible Officer of any ERISA Affiliate knows
or has reason to know that a request for a minimum funding waiver under Section 412 of the Code has been filed with respect
to any Title IV Plan or Multiemployer Plan, a notice (which may be made by telephone if promptly confirmed in writing) describing
such waiver request and any action that any ERISA Affiliate proposes to take with respect thereto, together with a copy of any
notice filed with the PBGC or the IRS pertaining thereto;


 


(g)            within
ten (10) Business Days of obtaining written notice or Knowledge thereof: (i) the termination of any Material Agreement;
(ii) the receipt by any Obligor or any of its Subsidiaries of a written notice under any Material Agreement (and a copy thereof)
asserting a default by such Obligor or any of its Subsidiaries where such alleged default would permit such counterparty to terminate
such Material Agreement; (iii) the entering into any new Material Agreement by an Obligor (and a copy thereof); or (iv) any
amendment to a Material Agreement that would be materially adverse to the Lenders (and a copy thereof) (which includes, but is
not limited to, any amendments to provisions relating to pricing and term); provided that notices required under this subsection
(g) may be delivered with monthly Compliance Certificate unless any of the foregoing events would reasonably be expected to
have a Material Adverse Effect;


 


(h)            any
product recalls as defined in 21 C.F.R. §7.3(g), withdrawals or marketing suspensions conducted, to be undertaken or issued
by any Obligor or any of its Subsidiaries, whether or not at the request, demand or order of any Governmental Authority or otherwise
with respect to any Product, in each case that would (either individually or in the aggregate) reasonably be expected to result
in a Material Adverse Effect;


 



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(i)            within
ten (10) Business Days of obtaining written notice or Knowledge thereof, any infringement or other violation by any Person
of any Obligor Intellectual Property that would reasonably be expected to result in a Material Adverse Effect;


  


(j)            within
ten (10) Business Days of obtaining written notice or Knowledge thereof, a material licensing agreement or arrangement
entered into by any Obligor or any of its Subsidiaries in connection with any material infringement or alleged infringement of
the Intellectual Property of another Person;


 


(k)           within
ten (10) Business Days of obtaining written notice or Knowledge thereof, any written claim by any Person that the conduct
of any Obligor’s (or any Subsidiary thereof) business, including the development, manufacture, use, sale or other commercialization
of any Product, infringes any Intellectual Property of such Person, except to the extent any such claim would not reasonably be
expected to result in a Material Adverse Effect;


 


(l)            the
reports and notices as required by the Security Documents;


 


(m)           within
thirty (30) days of the date thereof, or, if earlier, on the date of delivery of any financial statements pursuant to Section 8.01,
notice of any material change in accounting policies or financial reporting practices by the Obligors;


 


(n)            promptly
after the occurrence thereof, notice of any labor controversy resulting in or threatening to result in any strike, work stoppage,
boycott, shutdown or other material labor disruption against or involving an Obligor (or any Subsidiary thereof);


 


(o)            any
other development that results in, or would reasonably be expected to result in, a Material Adverse Effect;


 


(p)            concurrently
with the delivery of financial statements under Section 8.01(a) or (b), the creation or other acquisition of any Intellectual
Property by any Obligor or any Subsidiary after the date hereof and during such prior fiscal year which is registered or becomes
registered or the subject of an application for registration with the United States Copyright Office or the United States Patent
and Trademark Office, as applicable, or with any other equivalent foreign Governmental Authority; and


 


(q)            any
change to any Obligor’s ownership of Deposit Accounts, Securities Accounts and Commodity Accounts, by delivering to the Lenders
an updated Schedule 7 to the Security Agreement setting forth a complete and correct list of all such accounts as of the date
of such change.


 


Each notice delivered
under this Section 8.02 shall be accompanied by a statement of a Responsible Officer of the Borrower setting forth in reasonable
detail the event or development requiring such notice; provided that, if the Borrower is a Publicly Reporting Company, the
Borrower’s filing of notice of any such event with the SEC shall be deemed to satisfy the requirements of this Section 8.02
on the date on which such report is first available via the SEC’s EDGAR system or a successor system related thereto.


 



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Notwithstanding any
contrary provision of the Agreement or any other Loan Document (including, without limitation, Sections 8.01 and 8.02), until such
time as the Administrative Agent provides notice to the Borrower that it desires to receive information that constitutes material
non-public information, the Borrower shall not provide any such material non-public information to the Administrative Agent that
would otherwise be required to be delivered hereunder unless the Borrower is disclosing such information pursuant to a filing with
the SEC; provided, that notwithstanding the forgoing, the Borrower shall at all times comply with Section 8.01(c)(i)-(iv) and
8.02(a).


 


Section 8.03.     Existence;
Maintenance of Properties, Etc. (a) It will, and will cause each of its Subsidiaries
to, do or cause to be done all things necessary to preserve, renew and keep in full force and effect its legal existence; provided
that the foregoing shall not prohibit any merger, amalgamation, consolidation, liquidation or dissolution permitted under Section 9.03.


 


(b)            It
shall, and shall cause each of its Subsidiaries to, maintain and preserve all rights, licenses, permits, privileges and franchises
material to the conduct of its business, and maintain and preserve all of its assets and properties, including all Product Assets,
necessary to the conduct of its business in good working order and condition, ordinary wear and tear and damage from casualty or
condemnation excepted.


 


(c)            It
shall, and shall cause each of its Subsidiaries to, use commercially reasonable efforts to cause each new employee and contractor
to execute and deliver a customary confidentiality, non-disclosure and Intellectual Property assignment agreement that includes
a waiver of moral rights.


 


Section 8.04.     Payment
of Obligations. It will, and will cause each of its Subsidiaries to, pay and discharge
(i) all federal income and other material Taxes, fees, assessments and governmental charges or levies imposed upon it or upon
its properties or assets prior to the date on which penalties attach thereto, and all lawful claims for labor, materials and supplies
which, if unpaid, might become a Lien (other than a Permitted Lien) upon any properties or assets of any Obligor, except to the
extent such Taxes, fees, assessments or governmental charges or levies, or such claims, are being contested in good faith by appropriate
proceedings and are adequately reserved against substantially in accordance with GAAP, (ii) all lawful claims which, if unpaid,
would by Law become a Lien upon its Property not constituting a Permitted Lien and (iii) all other obligations if the failure
to discharge such obligation would reasonably be expected to result in a Material Adverse Effect.


 


Section 8.05.     Insurance.
At its own cost and expense, it will, and will cause each of its Subsidiaries, to obtain and maintain, with financially sound and
reputable insurers, insurance of the kinds, and in the amounts, as are consistent with customary practices and standards of its
industry in the same or similar locations, it being understood and agreed that the insurance held by the Obligors on the Closing
Date is deemed to fulfill this requirement on the date hereof. All of the insurance policies required pursuant to this Section 8.05
will name the Administrative Agent as a “loss payee,” “additional insured” or “mortgagee,”
as applicable and as its interests may appear. The Borrower will use its commercially reasonable efforts to ensure, or to cause
others to ensure, that all insurance policies required pursuant to this Section 8.05 shall provide that they shall not be
terminated or cancelled nor shall any policy be materially changed in a manner adverse to the insured Person without at least thirty (30)
days’ written notice to the Borrower and the Administrative Agent. Receipt of notice of termination or cancellation of any
such insurance policies shall entitle the Administrative Agent to renew any such policies, all in accordance with the first sentence
of this Section 8.05 or otherwise to obtain similar insurance in place of such policies, in each case at the expense of the
Borrower (payable within five (5) Business Days of any Borrower’s receipt of written demand therefor) and, unless
an Event of Default has occurred and is continuing, with the prior written consent of the Borrower (such consent not to be unreasonably
withheld). The amount of any such expenses shall accrue interest at the Default Rate if not paid when due and shall constitute
 “Obligations.” All of the insurance policies required hereby will be evidenced by one or more certificates of insurance,
together with appropriate loss payee or additional insured clauses or endorsements in favor of the Administrative Agent as required
by this Section, delivered to the Administrative Agent on or before the Closing Date and at such other times as the Administrative
Agent may request from time to time.


 



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Section 8.06.     Books
and Records; Inspection Rights. It will, and will cause each of its Subsidiaries to, keep
proper books of record and account in which full, true and correct entries are made of all dealings and transactions in relation
to its business and activities. It will, and will cause each of its Subsidiaries to, permit any representatives designated by the
Administrative Agent, upon reasonable prior notice and at reasonable times, to visit and inspect its properties, to examine and
make extracts from its books and records, and to discuss its affairs, finances and condition with its officers and independent
accountants, all at such reasonable times during normal business hours and with reasonable advance notice as the Administrative
Agent may request. It will, and will cause each of its Subsidiaries to, pay all reasonable and documented out-of-pocket
expenses incurred by the Administrative Agent of (a) so long as no Default has occurred and is continuing, two such inspections
each calendar year and (b) during a continuing Default, all such inspections.


 


Section 8.07.     Compliance
with Laws. (a) It will, and will cause each of its Subsidiaries to, (i) comply
in all material respects with all Requirements of Law (including Healthcare Laws and Environmental Laws) and (ii) comply in
all material respects with all terms of outstanding Indebtedness and all Material Agreements, except (other than with respect to
Material Intellectual Property) where the failure to do so, individually or in the aggregate, would not reasonably be expected
to result in a Material Adverse Effect.


 


(b)            Each
Obligor will maintain, and will cause each of its Subsidiaries to maintain, all records required to be maintained by a Governmental
Authority or otherwise under any applicable Healthcare Law, except where failure to do so, individually or in the aggregate, would
not reasonably be expected to have a Material Adverse Effect.


 


(c)            Each
Obligor will maintain, and will cause each of its Subsidiaries to maintain, a reasonable compliance program designed to promote
compliance with and to detect, prevent and address violations of all material Healthcare Laws (a “Health Care Compliance
Program”), which will be reviewed and updated annually, as necessary.


 



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Section 8.08.     Licenses.
It will, and will cause each of its Subsidiaries to, obtain and maintain all licenses, authorizations, consents, filings, exemptions,
registrations and other Governmental Approvals necessary in connection with the execution, delivery and performance of the Loan
Documents, the consummation of the Transactions or the operation and conduct of its business and ownership of its properties, except
where failure to do so would not reasonably be expected to have a Material Adverse Effect.


 


Section 8.09.     Action
under Environmental Laws. It will, and will cause each of its Subsidiaries to, upon a
Responsible Officer becoming aware of the release of any Hazardous Materials or the existence of any environmental liability under
applicable Environmental Laws with respect to their respective businesses, operations or properties, take all actions, at their
cost and expense, as shall be required by applicable Law to investigate and clean up the condition of their respective businesses,
operations or properties, including all required removal, containment and remedial actions, and restore their respective businesses,
operations or properties to a condition, in each case in material compliance with applicable Environmental Laws.


 


Section 8.10.     Use
of Proceeds. The proceeds of the Term Loans will be used only as provided in Section 2.05.
No part of the proceeds of the Term Loans will be used, whether directly or indirectly, for any purpose that violates any of the
Regulations of the Board of Governors of the Federal Reserve System, including Regulations T, U and X.


 


Section 8.11.     Certain
Obligations Respecting Subsidiaries; Further Assurances; Intellectual Property.


 


(a)            Subsidiaries.
It will take such action, and will cause each of its Subsidiaries to take such action, from time to time as shall be necessary
to ensure that all Subsidiaries are “Guarantors” hereunder; provided that notwithstanding anything in this Agreement
to the contrary, no Foreign Subsidiary shall be required to become a Guarantor hereunder to the extent such Guarantee would result
in a material adverse Tax consequence for the Borrower and its Subsidiaries. Without limiting the generality of the foregoing,
in the event that the Borrower or any of its Subsidiaries shall form or acquire any new Subsidiary, it and its Subsidiaries will
promptly and in any event within thirty (30) days (or such longer time as consented to by the Administrative Agent in writing)
of the formation or Acquisition of such Subsidiary:


 


(i)            cause
such new Subsidiary to become a “Guarantor” hereunder, and a “Grantor” under the Security Documents, pursuant
to a Guarantee Assumption Agreement;


 


(ii)           take
such action or cause such Subsidiary to take such action (including delivering such Equity Interests, together with undated transfer
powers executed in blank and any intercompany notes with undated endorsements executed in blank) as shall be necessary to create
and perfect valid and enforceable first priority (subject to Permitted Priority Liens) Liens on substantially all of the personal
Property of such new Subsidiary as collateral security for the obligations of such new Subsidiary hereunder;


 



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(iii)            to
the extent that the parent of such Subsidiary is not a party to the Security Documents or has not otherwise pledged Equity Interests
in its Subsidiaries in accordance with the terms of the Security Documents and this Agreement, cause the parent of such Subsidiary
to execute and deliver a pledge agreement in favor of the Lenders, in respect of all outstanding issued shares of such Subsidiary;
and


  


(iv)            deliver
such proof of corporate action, incumbency of officers, opinions of counsel and other documents as is consistent with those delivered
by each Obligor pursuant to Section 6.01 or as the Majority Lenders shall have requested.


 


Notwithstanding the
foregoing or anything else in this Agreement to the contrary, no Obligor shall be required to pledge more than 65% of the voting
Equity Interests of any Foreign Subsidiary if such pledge would result in a material adverse Tax consequence for the Borrower and
its Subsidiaries.


 


(b)            Further
Assurances. It will, and will cause each of its Subsidiaries to, take such action from time to time as shall reasonably be
requested in writing by the Majority Lenders to effectuate the purposes and objectives of this Agreement. Without limiting the
generality of the foregoing, it will, and will cause each Person that is required to be a Guarantor to, take such action from time
to time (including executing and delivering such assignments, security agreements, control agreements and other instruments) as
shall be reasonably requested in writing by the Majority Lenders to create, in favor of the Lenders, perfected security interests
and Liens (subject to Permitted Liens) in substantially all of the personal Property of such Obligor as collateral security for
the Obligations; provided that any such security interest or Lien shall be subject to the relevant requirements of the Security
Documents.


 


(c)            Intellectual
Property. In the event that the Borrower or any of its Subsidiaries creates, develops or acquires Obligor Intellectual Property
during the term of this Agreement, then the provisions of this Agreement shall automatically apply thereto and any such Obligor
Intellectual Property shall automatically constitute part of the Collateral under the Security Documents, without further action
by any party, in each case from and after the date of such creation, development or acquisition (except that any representations
or warranties of any Obligor shall apply to any such Obligor Intellectual Property only from and after the date, if any, subsequent
to such acquisition that such representations and warranties are brought down or made anew as provided herein). In the event that
the Borrower or any of its Subsidiaries holds or acquires Obligor Intellectual Property during the term of this Agreement, then,
upon the request of the Administrative Agent, the Borrower or any such Subsidiary shall take any action as shall be reasonably
necessary and reasonably requested by the Administrative Agent to ensure that the provisions of this Agreement and the Security
Agreement shall apply thereto and any such Obligor Intellectual Property shall constitute part of the Collateral under the Security
Documents.


 


Section 8.12.     Termination
of Non-Permitted Liens. In the event that any Responsible Officer of the Borrower
shall become aware or be notified by the Lenders of the existence of any outstanding Lien against any Property of any Obligor,
which Lien is not a Permitted Lien, such Obligor shall use its best efforts to promptly terminate or cause the termination of such
Lien.


 



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Section 8.13.     Non-Consolidation.
The Borrower will, and will cause each of its Subsidiaries to, (i) maintain entity records and books of account separate from
those of any other entity (other than the Obligors) which is an Affiliate of such entity; and (ii) not commingle its funds
or assets with those of any other entity (other than the Obligors) which is an Affiliate of such entity.


  


Section 8.14.     Anti-Terrorism
and Anti-Corruption Laws. No Obligor shall engage in any transaction that violates
any of the applicable prohibitions set forth in any Economic Sanctions Law, Anti-Terrorism Law, or the US Foreign Corrupt
Practices Act of 1977 (15 USC. §§ 78dd-1 et seq.). None of the funds or assets of such Obligor
or any Subsidiary that are used to repay the Term Loans shall constitute property of, or shall be beneficially owned by, any Designated
Person or, to each Obligor’s Knowledge, be the direct proceeds derived from any transactions that violate the prohibitions
set forth in any applicable Economic Sanctions Law, and no Designated Person shall have any direct or indirect interest in such
Obligor insofar as such interest would violate any Economic Sanctions Laws applicable to such Obligor.


 


Section 8.15.     Minimum
Liquidity. The Borrower shall ensure that the Borrower shall have aggregate Unrestricted
Cash of not less than $3,000,000 at all times (“Minimum Liquidity”).


 


Section 8.16.     Minimum
Product Revenue. (a) On each date set forth below (a “Calculation Date”)
under the heading Calculation Date, the Product Revenue for the four (4) consecutive fiscal quarters ended on such Calculation
Date shall not be less than the amount set forth opposite such Calculation Date (such amount, the “Minimum Product Revenue”):


 


	Calculation Date	 	Minimum Product Revenue	 
	December 31, 2020	 	$	0	 
	March 31, 2021	 	$	3,800,000	 
	June 30, 2021	 	$	10,200,000	 
	September 30, 2021	 	$	18,200,000	 
	December 31, 2021	 	$	25,000,000	 
	March 31, 2022	 	$	35,500,000	 
	June 30, 2022	 	$	43,900,000	 
	September 30, 2022	 	$	53,000,000	 
	December 31, 2022	 	$	62,600,000	 
	March 31, 2023	 	$	73,000,000	 
	June 30, 2023	 	$	80,500,000	 
	September 30, 2023	 	$	87,100,000	 
	December 31, 2023	 	$	93,500,000	 



 



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Section 8.17.     Maintenance
of Regulatory Approvals, Contracts, Intellectual Property, Etc. With respect to each
Product, such Obligor will, and will cause each of its Subsidiaries (to the extent applicable) to: (i) maintain in full force
and effect all material Regulatory Approvals (including the Product Authorizations), Material Agreements, or other rights necessary
for the current operations of such Obligor’s or such Subsidiary’s business, as the case may be, including in respect
of all related Product Development and Commercialization Activities, (ii) maintain in full force and effect all material Intellectual
Property owned or controlled by such Obligor or any such Subsidiary that is used in and necessary for related Product Development
and Commercialization Activities and (iii) use commercially reasonable efforts to pursue and maintain in full force and effect
legal protection for all new, material Intellectual Property developed or controlled by such Obligor or any of its Subsidiaries,
as the case may be, that is used in and necessary in connection with any Product Development and Commercialization Activities relating
to any such Product.


  


Section 8.18.     Cash
Management.


 


(a)           The
Obligors will, and will cause each of their Subsidiaries to, maintain all Deposit Accounts, Securities Accounts, Commodity Accounts
and lockboxes (other than Excluded Accounts) with a bank or financial institution that has executed and delivered to the Administrative
Agent an account control agreement, in form and substance reasonably acceptable to the Administrative Agent (each such Deposit
Account, Securities Account, Commodity Account and lockbox, a “Controlled Account”).


 


(b)           The
Obligors will, and will cause each of their Subsidiaries to, deposit promptly, and in any event no later than five (5) Business
Days after the date of receipt thereof, all cash, checks, drafts or other similar items of payment relating to or constituting
payments made in respect of any and all accounts and other rights and interests into Controlled Accounts.


 


(c)            In
order to segregate and to facilitate perfection of Lender’s security interest in any funds an Obligor receives from third
party payors, each Obligor shall promptly notify Lender of any plans to begin receiving reimbursement from a Federal Health Care
Program. Prior to receipt of any payments from a Federal Health Care Program, the Obligor shall notify such Federal Health Care
Program to make any reimbursement payments to a segregated health care account solely under Obligor’s control, and which
solely contain payments received from Federal Health Care Programs (a “Segregated Health Care Account”). Obligor
shall cause all amounts deposited into a Segregated Health Care Account to be automatically swept on a daily basis to a Controlled
Account.


 


Section 8.19.     Milestone.
On or prior to March 31, 2020, the Borrower shall obtain FDA approval for Twirla (AG200-15).


 


Section 8.20.          Certain
Post-Closing Obligations. The Obligors will, and will cause each of their Subsidiaries
to provide the items set forth in Schedule 8.20 within the time periods set forth therein.


 



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Article 9


 


Negative
Covenants


  


Each Obligor covenants
and agrees with the Lenders that, until the Commitments have expired or been terminated and all Obligations (other than the Warrant
Obligations and inchoate indemnity obligations) have been paid in full in cash:


 


Section 9.01.     Indebtedness.
It will not, and will not permit any of its Subsidiaries to, create, incur, assume or permit to exist any Indebtedness, whether
directly or indirectly, except:


 


(a)            the
Obligations;


 


(b)            Indebtedness
existing on the date hereof and set forth in Schedule 9.01 and Permitted Refinancings thereof;


 


(c)            accounts
payable to trade creditors for goods and services and current operating liabilities (not the result of the borrowing of money)
incurred in the Ordinary Course of Business;


 


(d)            Indebtedness
consisting of guarantees resulting from endorsement of negotiable instruments for collection by it or any of its Subsidiaries in
the Ordinary Course of Business;


 


(e)            Indebtedness
of any Obligor to any other Obligor;


 


(f)            Guarantees
by any Obligor of the Indebtedness of any other Obligor;


 


(g)            Purchase
money and capital lease financing; provided that (i) if secured, the collateral therefor consists solely of the assets
being financed, the products and proceeds thereof and books and records related thereto, (ii) in the case of purchase money
Indebtedness, such Indebtedness shall constitute not less than 75% of the aggregate consideration paid with respect to such asset
and (iii) the aggregate outstanding principal amount of such Indebtedness does not exceed $1,000,000 at any time;


 


(h)            unsecured
workers’ compensation claims, payment obligations in connection with health, disability or other types of social security
benefits, unemployment or other insurance obligations, reclamation and statutory obligations, in each case incurred in the Ordinary
Course of Business;


 


(i)            Indebtedness
under Hedging Agreements permitted pursuant to Section 9.05(f);


 


(j)            Indebtedness
of the Borrower and its Subsidiaries with respect to corporate credit cards not to exceed $500,000 at any time outstanding;


 






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(k)           other
unsecured Indebtedness in an aggregate principal amount not to exceed $500,000 at any time outstanding; and


  


(l)            after
such time as the Borrower has achieved Product Revenue during any twelve (12) consecutive calendar months in an amount exceeding
$50,000,000, Indebtedness consisting of a revolving line of credit in an aggregate principal amount not to exceed $10,000,000
at any time outstanding; provided that (i) if secured, the collateral therefor consists solely of accounts receivable
of the Obligors, and (ii) such Indebtedness shall be subject to an intercreditor agreement that is satisfactory to the Administrative
Agent in its sole discretion.


 


Section 9.02.     Liens.
It will not, and will not permit any of its Subsidiaries to, create, incur, assume or permit to exist any Lien on any Property
now owned by it, except:


 


(a)            Liens
securing the Obligations;


 


(b)            any
Lien on any Property of any Obligor existing on the date hereof and set forth in Schedule 9.02; provided that (i) no
such Lien shall extend to any other Property of such Obligor and (ii) any such Lien shall secure only those obligations which
it secures on the date hereof and extensions, renewals and replacements thereof that do not increase the outstanding principal
amount thereof;


 


(c)            Liens
securing Indebtedness permitted under Section 9.01(g); provided that such Liens are restricted solely to the collateral
described in Section 9.01(g);


 


(d)            Liens
imposed by Law which were incurred in the Ordinary Course of Business, including (but not limited to) carriers’, warehousemen’s,
landlords’ and mechanics’ liens, liens relating to leasehold improvements and other similar liens arising in the Ordinary
Course of Business and which (i) do not in the aggregate materially detract from the value of the Property subject thereto
or materially impair the use thereof in the operations of the business of such Person or (ii) are being contested in good
faith by appropriate proceedings, which proceedings have the effect of preventing the forfeiture or sale of the Property subject
to such liens and for which adequate reserves have been made if required substantially in accordance with GAAP;


 


(e)            Liens,
pledges or deposits made in the Ordinary Course of Business in connection with bids, contracts, leases, appeal bonds, workers’
compensation, unemployment insurance or other similar social security legislation;


 


(f)            Liens
securing Taxes, assessments and other governmental charges, the payment of which is not yet due or is being contested in good faith
by appropriate proceedings promptly initiated and diligently conducted and for which such reserve or other appropriate provisions,
if any, as shall be required by GAAP shall have been made;


 


(g)            servitudes,
easements, rights of way, restrictions and other similar encumbrances on real Property imposed by applicable Laws and encumbrances
consisting of zoning or building restrictions, easements, licenses, restrictions on the use of Property or minor imperfections
in title thereto which, in the aggregate, are not material, and which do not in any case materially detract from the value of the
Property subject thereto or interfere with the ordinary conduct of the business of any of the Obligors;


 



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(h)           banker’s
liens, rights of setoff and similar Liens incurred in the Ordinary Course of Business and arising in connection with the Obligors’
deposit accounts or securities accounts held at financial institutions solely to secure payment of fees and similar costs and expenses
of such financial institutions with respect to such accounts;


 


(i)            Liens
in connection with transfers permitted under Section 9.09;


 


(j)            any
judgment lien or lien arising from decrees or attachments not constituting an Event of Default;


 


(k)           leases
or subleases of real property granted in the Ordinary Course of Business, and leases, subleases, nonexclusive licenses or sublicenses
of personal property (other than Intellectual Property) granted in the Ordinary Course of Business;


 


(l)            Liens
in favor of customs and revenue authorities arising as a matter of law to secure the payment of custom duties in connection with
the importation of goods, not securing an amount in the aggregate in excess of $250,000 at any given time;


 


(m)           Liens
on a deposit account of the Obligors and the cash and cash equivalents therein, in each case, securing Indebtedness described in
Section 9.01(j);


 


(n)            Permitted
Licenses solely to the extent that such Permitted License would constitute a Lien;


 


(o)            Liens
securing Indebtedness permitted under Section 9.01(l); provided that (i) such Liens are restricted solely to the
collateral described in Section 9.01(l) and (ii) such Liens shall be subject to an intercreditor agreement that
is satisfactory to the Administrative Agent in its sole discretion; and


 


(p)            Liens
on any property of any Obligor with respect to any Title IV Plan or Multiemployer Plan not in violation of Section 9.17;


 


provided that no Lien otherwise
permitted under any of the foregoing Section 9.02 (excluding Section 9.02(a)) shall apply to any Material Intellectual
Property.


 


Section 9.03.     Fundamental
Changes and Acquisitions. It will not, and will not permit any of its Subsidiaries to,
(i) enter into or consummate any transaction of merger, amalgamation or consolidation, including without limitation, a reverse-triangular
merger, or other similar transaction or series of related transactions, (ii) liquidate, wind up or dissolve itself (or suffer
any liquidation or dissolution) (including in connection with any division or plan of division under Delaware law or any comparable
event under a different jurisdiction’s laws), (iii) make or consummate any Acquisition, or (iv) sell or issue any
Disqualified Equity Interests, except:


 



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(a)            Investments
permitted under Section 9.05(e);


 


(b)            Permitted
Acquisitions for an aggregate consideration not to exceed $3,000,000 for the duration of this Agreement; and


 


(c)            the
merger, amalgamation or consolidation of any Obligor with or into any other Obligor, provided that (i) if the Borrower
is a party to such merger, amalgamation or consolidation, the Borrower shall be the surviving entity and (ii) if a Domestic
Subsidiary is a party to such merger, amalgamation or consolidation, a Domestic Subsidiary shall be the surviving entity.


 


Section 9.04.     Lines
of Business. It will not, and will not permit any of its Subsidiaries to, engage to any
material extent in any business other than the business engaged in on the date hereof by such Obligor, or a business reasonably
related, incidental or complementary thereto or reasonable extensions thereof.


 


Section 9.05.     Investments.
It will not, and will not permit any of its Subsidiaries to, make, directly or indirectly, or permit to remain outstanding any
Investments except:


 


(a)            Investments
outstanding on the date hereof and identified in Schedule 9.05 and any modification, replacement, renewal or extension thereof
to the extent not involving new or additional Investments;


 


(b)            operating
deposit accounts with banks;


 


(c)            extensions
of credit in the nature of accounts receivable or notes receivable arising from the sales of goods or services in the Ordinary
Course of Business;


 


(d)            Permitted
Cash Equivalent Investments;


 


(e)            (i) Investments
consisting of 100% of the ownership of the Equity Interests of its Subsidiaries or (ii) Investments by the Borrower or any
Subsidiary consisting of 100% of the ownership of the Equity Interests of the Person acquired in connection with a Permitted Acquisition;


 


(f)            Hedging
Agreements entered into in the ordinary course of any Obligor’s financial planning solely to hedge interest rate risks (and
not for speculative purposes) in respect of Permitted Indebtedness and in an aggregate amount for all such Hedging Agreements not
in excess of $1,000,000;


 


(g)            Investments
consisting of prepaid expenses, negotiable instruments held for collection or deposit, security deposits with utilities, landlords
and other like Persons, and deposits in connection with workers’ compensation and similar deposits, in each case made in
the Ordinary Course of Business;


 



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(h)           Investments
received in connection with any Insolvency Proceedings in respect of any customers, suppliers or clients and in settlement of delinquent
obligations of, and other disputes with, customers, suppliers or clients;


 


(i)            Investments
permitted pursuant to Section 9.03;


 


(j)            Investments
consisting of notes receivable of, or prepaid royalties and other credit extensions, to customers and suppliers who are not Affiliates,
in the Ordinary Course of Business;


 


(k)           Investments
consisting of (i) travel advances and employee relocation loans and other employee loans and advances (including, for the
avoidance of doubt, advances in the form of sign-on bonuses and relocation bonuses) in the Ordinary Course of Business, and (ii) loans
to employees, officers or directors relating to the purchase of equity securities of the Borrower or its Subsidiaries pursuant
to employee stock purchase plans or agreements approved by the Borrower’s board of directors in an aggregate amount not to
exceed $250,000 for clause (ii) in any fiscal year;


 


(l)            so
long as no Event of Default has occurred and is continuing, Investments by any Obligor in another Obligor; and


 


(m)          so
long as no Default or Event of Default shall have occurred and is continuing at the time of such Investment, or after giving effect
thereto, other Investments in an amount not to exceed $250,000 in any fiscal year.


 


Section 9.06.     Restricted
Payments. It will not, and will not permit any of its Subsidiaries to, declare or make,
or agree to pay or make, directly or indirectly, any Restricted Payment, other than:


 


(a)            dividends
with respect to any Equity Interests of the Borrower or any of its Subsidiaries payable solely in additional shares of its Qualified
Equity Interests;


 


(b)            any
Restricted Payment by a Subsidiary to the Borrower;


 


(c)            any
purchase, redemption, retirement, or other Acquisition by the Borrower or any of its Subsidiaries of shares of its capital stock
or other Equity Interests with the proceeds received from a substantially concurrent issue of new shares of its capital stock or
other Equity Interests;


 


(d)            any
non-cash (other than cash in lieu of fractional shares) conversion or exercise requests in respect of any convertible securities,
options or warrants of the Borrower into Qualified Equity Interests of the Borrower pursuant to the terms of such convertible securities,
options or warrants or otherwise in exchange therefor;


 



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(e)            repurchases
pursuant to the terms of employee stock purchase plans, employee restricted stock agreements, stockholder rights plans, director
or consultant stock option plans, or similar plans in an aggregate amount not to exceed $250,000 in any fiscal year;


  


(f)            the
making of cash payments in lieu of the issuance of fractional shares upon the conversion of convertible securities (or in connection
with the exercise of warrants or similar securities) not to exceed $100,000 in any fiscal year; and


 


(g)            cash
payments made to redeem, purchase, repurchase or retire the Warrant Obligations in accordance with the terms of the Warrants.


 


Section 9.07.     Payments
of Indebtedness. It will not, and will not permit any of its Subsidiaries to, make any
payments in respect of any Material Indebtedness other than (i) payments of the Obligations, (ii) scheduled payments
of other Permitted Indebtedness (other than Indebtedness incurred pursuant to Section 9.01(l)), (iii) repayment of intercompany
Indebtedness permitted in reliance upon Section 9.01(e) (subject in each case to any subordination agreement entered
into in connection therewith), and (iv) payments of Indebtedness incurred pursuant to Section 9.01(l) made in accordance
with the applicable intercreditor agreement.


 


Section 9.08.     Change
in Fiscal Year. It will not, and will not permit any of its Subsidiaries to, change the
last day of its fiscal year from that in effect on the date hereof, without prior written notice to the Administrative Agent, except
to change the fiscal year of a Subsidiary acquired in connection with an Acquisition to conform its fiscal year to that of the
Borrower.


 


Section 9.09.     Sales
of Assets, Etc. It will not, and will not permit any of its Subsidiaries to, sell, lease,
exclusively license (in terms of geography or field of use), as a licensor, transfer (including in connection with any division
or plan of division under Delaware law or any comparable event under a different jurisdiction’s laws) or otherwise dispose
of any of its Property (including accounts receivable and Equity Interests of Subsidiaries), or forgive, release or compromise
any amount owed to the Borrower or any of its Subsidiaries, in each case, in one transaction or series of transactions (any thereof,
an “Asset Sale”), except:


 


(a)            transfers
of cash in the Ordinary Course of Business for equivalent value;


 


(b)            sales
or leases of inventory in the Ordinary Course of Business on ordinary business terms;


 


(c)            the
forgiveness, release or compromise of any amount owed to the Borrower or any of its Subsidiaries in the Ordinary Course of Business;


 


(d)            entering
into, or becoming bound, by a Permitted License to the extent not otherwise prohibited by this Agreement;


 


(e)            development
and other collaborative arrangements where such arrangements provide for the license or disclosure of Patents, Trademarks, Copyrights
or other Intellectual Property rights of any Obligor in the Ordinary Course of Business and consistent with general market practices
where such license requires periodic payments based on per unit sales of a product over a period of time; provided that
(i) such licenses must be true licenses that do not result in a legal transfer of title of the licensed Property or otherwise
constitute sales transactions in substance, and (ii) the aggregate amount of such periodic payments to the Obligors in any
fiscal year shall not exceed $500,000;


 



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(f)            a
sale, lease, exclusive license, transfer or other disposition (including by way of abandonment or cancellation) of any Property
that is obsolete or worn out or no longer used or useful in connection with the business of the Obligors;


 


(g)           dispositions
resulting from Casualty Events;


 


(h)           any
transaction permitted under Section 9.02, 9.03, 9.05 and 9.20; and


 


(i)            so
long as no Default or Event of Default shall have occurred and is continuing at the time of such Asset Sale, or after giving effect
thereto, Asset Sales of other property not to exceed $250,000 in the aggregate per fiscal year.


 


Section 9.10.     Transactions
with Affiliates. It will not, and will not permit any of its Subsidiaries to, sell, lease,
license or otherwise transfer any assets to, or purchase, lease, license or otherwise acquire any assets from, or otherwise engage
in any other transactions with, any of its Affiliates, except:


 


(a)            transactions
between or among the Borrower and its Subsidiaries;


 


(b)            customary
compensation and indemnification of, and other employment arrangements with, directors, officers and employees of any Obligor
in the Ordinary Course of Business;


 


(c)            transactions
upon fair and reasonable terms that are no less favorable to any Obligor than would be obtained in a comparable arm’s-length
transaction with a Person not an Affiliate; and


 


(d)            the
transactions set forth on Schedule 9.10.


 


Section 9.11.     Restrictive
Agreements. It will not, and will not permit any of its Subsidiaries to, directly or indirectly,
enter into, incur or permit to exist any Restrictive Agreement other than (i) restrictions and conditions imposed by Law or
by the Loan Documents, (ii) any stockholder agreement, charter, by laws or other organizational documents of an Obligor as
in effect on the date hereof or (iii) limitations associated with Permitted Liens or with any transaction permitted under
Section 9.01, 9.03, 9.05, 9.06 or 9.09.


 


Section 9.12.     Organizational
Documents, Material Agreements. (a) It will not, and will not permit any of its Subsidiaries
to, enter into any amendment to or modification of any Organizational Document that would be reasonably expected to adversely affect
the Lenders or the Administrative Agent in any material respect, without the prior written consent of the Administrative Agent.


 






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(b)            It
will not, and will not permit any of its Subsidiaries to (i) enter into any material waiver, amendment or modification of
any Material Agreement (including, but not limited to, any amendments to provisions relating to pricing and term) that would be
reasonably expected to adversely affect the Lenders in any material respect and (ii) take or omit to take any action that
results in the termination of, or permits any other Person to terminate, any Material Agreement or Material Intellectual Property
that would be reasonably expected to adversely affect the Lenders in any material respect, without, in each case, the prior written
consent of the Administrative Agent.


 


(c)            It
will not, and will not permit any of its Subsidiaries to, enter into any amendment to or modification of any document evidencing
any Indebtedness permitted to be incurred under Section 9.01(l) other than in accordance with the applicable intercreditor
agreement.


 


Section 9.13.     Operating
Leases. It will not, and will not permit any of its Subsidiaries to, make any expenditures
in respect of operating leases, except for:


 


(a)            real
estate operating leases entered into in the Ordinary Course of Business; and


 


(b)           operating
leases that would not cause the Borrower and its Subsidiaries, on a consolidated basis, to make payments exceeding $500,000 in
any fiscal year.


 


Section 9.14.     Sales
and Leasebacks. Except as permitted by Section 9.01(g), it will not, and will not
permit any of its Subsidiaries to, become liable, directly or indirectly, with respect to any lease, whether an operating lease
or a Capital Lease Obligation, of any Property (whether real, personal, or mixed), whether now owned or hereafter acquired, (i) which
the Borrower or such Subsidiary has sold or transferred or is to sell or transfer to any other Person and (ii) which the Borrower
or such Subsidiary intends to use for substantially the same purposes as Property which has been or is to be sold or transferred.


 


Section 9.15.     Hazardous
Material. It will not, and will not permit any of its Subsidiaries to, use, generate,
manufacture, install, treat, release, store or dispose of any Hazardous Material, except in compliance with all applicable Environmental
Laws or where the failure to comply would not reasonably be expected to result in a Material Adverse Change.


 


Section 9.16.     Accounting
Changes. It will not, and will not permit any of its Subsidiaries to, make any significant
change in accounting treatment, except as required or permitted by GAAP.


 


Section 9.17.     Compliance
with ERISA. No ERISA Affiliate shall cause or suffer to exist (a) any event that
would result in the imposition of a Lien on any Property of any Obligor with a value exceeding $1,000,000 with respect to any Title IV
Plan or Multiemployer Plan or (b) any other ERISA Event that would, in the aggregate, have a Material Adverse Effect. No Obligor
or any Subsidiary thereof shall cause or suffer to exist any event that could result in the imposition of a Lien with respect to
any Benefit Plan that would have a Material Adverse Effect.


 






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Section 9.18.     Deposit
Accounts. It will not, and will not permit any of its Subsidiaries to, establish or maintain
any bank account (other than an Excluded Account) that is not a Controlled Account and will not, and will not permit any of its
Subsidiaries to, deposit proceeds in a bank account that is not a Controlled Account; provided, up to two months of payroll
expenses may be on deposit in Excluded Accounts in the aggregate at any time.


 


Section 9.19.     Outbound
Licenses. It will not, and will not permit any of its Subsidiaries to, enter into or become
bound by any outbound license or agreement unless such outbound license or agreement is a Permitted License.


 


Section 9.20.     Inbound
Licenses. It will not, and will not permit any of its Subsidiaries to, enter into or become
bound by any inbound license or agreement (other than Permitted Licenses) unless (i) no Default has occurred and is continuing,
(ii) such Obligor has provided written notice to the Lenders of the material terms of such license or agreement with a description
of its anticipated and projected impact on such Obligor’s business or financial condition, and (iii) such Obligor has
taken such commercially reasonable actions as the Lenders may reasonably request to obtain the consent of, or waiver by, any Person
whose consent or waiver is necessary for the Lenders to be granted a valid and perfected security interest in such license or agreement
allowing the Lenders to fully exercise their rights under any of the Loan Documents in the event of a disposition or liquidation
of the rights, assets or property that is the subject of such license or agreement; provided that the aggregate consideration
paid for all such inbound licenses pursuant to this Section 9.20 shall not exceed an amount equal to $1,000,000 per fiscal
year.


 


Article 10


 


Events
of Default


 


Section 10.01.   Events
of Default. Each of the following events shall constitute an “Event of Default”:


 


(a)            the
Borrower shall fail to pay any principal on the Term Loans when and as the same shall become due and payable, whether at the due
date thereof or at a date fixed for prepayment thereof or otherwise; or


 


(b)            any
Obligor shall fail to pay any Obligation (other than an amount referred to in Section 10.01(a)) when and as the same shall
become due and payable, and such failure shall continue unremedied for a period of three (3) Business Days; or


 


(c)            any
representation or warranty made by or on behalf of an Obligor or any of its Subsidiaries in or in connection with this Agreement
or any other Loan Document or any amendment or modification hereof or thereof, or in any report, certificate, financial statement
or other document furnished pursuant to or in connection with this Agreement or any other Loan Document or any amendment or modification
hereof or thereof, shall: (i) prove to have been incorrect when made or deemed made to the extent that such representation
or warranty contains any materiality or Material Adverse Effect qualifier; or (ii) prove to have been incorrect in any material
respect when made or deemed made to the extent that such representation or warranty does not otherwise contain any materiality
or Material Adverse Effect qualifier; or


 






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(d)            any
Obligor shall breach or default in the performance of any covenant, condition or agreement contained in Section 8.01, 8.02,
8.03(a) (with respect to such Obligor’s existence), 8.10, 8.11, 8.13, 8.15, 8.16, 8.17, 8.18, 8.19, 8.20 or Article 9;
or


 


(e)            any
Obligor shall breach or default in the performance of any covenant, condition or agreement contained in this Agreement (other than
those specified in Section 10.01(a), (b) or (d)) or any other Loan Document, and such breach or default shall continue
unremedied for a period of thirty (30) or more days; or


 


(f)            any
Obligor shall fail to make any payment (whether of principal or interest and regardless of amount) in respect of any Material Indebtedness,
when and as the same shall become due and payable after giving effect to any applicable grace or cure period as originally provided
by the terms of such Indebtedness; or


 


(g)            (i) any
 “event of default” or similar event under the Contract governing any Material Indebtedness shall occur and such “event
of default” or similar event shall continue unremedied, uncured or unwaived after a period of ten (10) Business
Days after the expiration of any cure period thereunder, or (ii) any event or condition occurs (A) that results in any
Material Indebtedness becoming due prior to its scheduled maturity or (B) that enables or permits (with or without the giving
of notice, the lapse of time or both) the holder or holders of such Material Indebtedness or any trustee or agent on its or their
behalf to cause such Material Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof,
prior to its scheduled maturity; provided that this Section 10.01(g) shall not apply to secured Indebtedness that
becomes due as a result of the voluntary sale or transfer of the Property securing such Material Indebtedness; or


 


(h)           any
Obligor or any of its Subsidiaries:


 


(i)            ceases
to be Solvent, or generally does not or becomes unable to pay its debts or meet its liabilities as the same become due, or admits
in writing its inability to pay its debts generally, or declares any general moratorium on its indebtedness, or proposes a compromise
or arrangement or deed of company arrangement between it and any class of its creditors; or


 


(ii)            shall
(A) voluntarily commence any proceeding or file any petition seeking liquidation, reorganization or other relief under any
Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, (B) consent to the
institution of, or fail to contest in a timely and appropriate manner, any proceeding or petition described in Section 10.01(i),
(C) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official
for an Obligor or any Subsidiary or for a substantial part of its assets, (D) file an answer admitting the material allegations
of a petition filed against it in any such proceeding, (E) make a general assignment for the benefit of creditors or (F) take
any action for the purpose of effecting any of the foregoing; or


 






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(i)             an
involuntary proceeding shall be commenced or an involuntary petition shall be filed seeking (i) liquidation, reorganization
or other relief in respect of an Obligor or any Subsidiary or its debts, or of a substantial part of its assets, under any Federal,
state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect or (ii) the appointment of
a receiver, trustee, custodian, sequestrator, conservator or similar official for an Obligor or any Subsidiary or for a substantial
part of its assets, and, in any such case, such proceeding or petition shall continue undismissed for sixty (60) days or an
order or decree approving or ordering any of the foregoing shall be entered; or


 


(j)             one
or more judgments for the payment of money in an aggregate amount in excess of $1,000,000 (excluding any amounts covered by insurance
as to which the applicable carrier has accepted coverage) shall be rendered against any Obligor or any combination thereof and
the same shall remain undischarged for a period of forty-five (45) consecutive days during which execution shall not be effectively
stayed, or any action shall be legally taken by a judgment creditor to attach or levy upon any assets of any Obligor to enforce
any such judgment; or


 


(k)            an
ERISA Event shall have occurred that, when taken together with all other ERISA Events that have occurred after the Closing Date,
would reasonably be expected to result in liability of the Obligors and their Subsidiaries in an aggregate amount exceeding $1,000,000;
or


 


(l)             a
Change of Control shall have occurred; or


 


(m)           a
Material Adverse Change shall have occurred; or


 


(n)           (i) any
Lien created by any of the Security Documents shall at any time not constitute a valid and perfected Lien in favor of the Administrative
Agent on Collateral with an aggregate value in excess of $500,000, free and clear of all other Liens (other than Permitted Liens)
except due to the action or inaction of the Administrative Agent or any Lender(s), (ii) the Security Documents or any Guarantee
of any of the Obligations shall for whatever reason cease to be in full force and effect, or (iii) any of the Security Documents
or any Guarantee of any of the Obligations, or the enforceability thereof, shall be repudiated or contested by any Obligor; or


 


(o)           any
injunction, whether temporary or permanent, shall be rendered against any Obligor that prevents the Obligors from selling or manufacturing
the Product in the United States for more than one hundred twenty (120) consecutive calendar days; or


 


(p)           (i) the
FDA or any other Governmental Authority (A) issues a letter or other written communication asserting that any Product lacks
a required Product Authorization that any Obligor is required to hold for the conduct of its current business, or (B) initiates
enforcement action against, or issues a warning letter with respect to, any Obligor, or any of their Products or the Contract
Manufacturer therefor, that causes any Obligor or Subsidiary thereof to discontinue marketing or withdraw any of its material
Products from the market to the extent that any Product marketing or commercial distribution has commenced, or causes a disruption
in, or the cessation of the manufacture of any of its material Products following approval of a Product Authorization permitting
the commercial distribution of such material Products, which discontinuance, withdrawal or delay would reasonably be expected
to last for more than ninety (90) days, (ii) there is a recall of any Product that has generated or is expected to generate
an aggregate amount of revenue equal to at least $2,000,000 over any consecutive twelve (12) month period, and which
cannot be resupplied within sixty (60) days, or (iii) any Obligor or Subsidiary thereof enters into a settlement agreement
with the FDA or any other Governmental Authority that results in aggregate liability as to any single or related series of transactions,
incidents or conditions, in excess of $1,000,000.


 






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Section 10.02.   Remedies.
(a) Upon the occurrence of any Event of Default, then, and in every such event (other than an Event of Default described
in Section 10.01(h) or (i)), and at any time thereafter during the continuance of such event, the Majority Lenders may,
by notice to the Borrower, declare the Term Loans then outstanding to be due and payable in whole (or in part, in which case any
principal not so declared to be due and payable may thereafter be declared to be due and payable), and thereupon the principal
of the Term Loans so declared to be due and payable, together with accrued interest thereon and all fees and other Obligations,
shall become due and payable immediately (in the case of the Term Loans, at the Redemption Price therefor), without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by each Obligor.


 


(b)           Upon
the occurrence of any Event of Default described in Section 10.01(h) or (i), the principal amount of the Term Loans
then outstanding, together with accrued interest thereon and all fees and other Obligations, shall automatically become due and
payable immediately (in the case of the Term Loans, at the Redemption Price therefor), without presentment, demand, protest or
other notice of any kind, all of which are hereby waived by each Obligor.


 


(c)            If
any Lender collects any money or property pursuant to this Article 10, they shall pay out the money or property in the order
set forth in Section 4.01(b).


 


Section 10.03.   Prepayment
Premium and Redemption Price. For the avoidance of doubt, the Prepayment Premium (as a
component of the Redemption Price) shall be due and payable at any time the Term Loans become due and payable prior to the Stated
Maturity Date for any reason (a “Premium Event”), whether due to acceleration pursuant to the terms of this
Agreement (in which case it shall be due immediately, upon the giving of notice to Borrower in accordance with Section 10.02(a),
or automatically, in accordance with Section 10.02(b)), by operation of law or otherwise (including, without limitation, on
account of any bankruptcy filing). In view of the impracticability and extreme difficulty of ascertaining the actual amount of
damages to the Lenders or profits lost by the Lenders as a result of such acceleration, and by mutual agreement of the parties
as to a reasonable estimation and calculation of the lost profits or damages of the Lenders, the Prepayment Premium shall be due
and payable upon such date. Each Obligor hereby waives any defense to payment, whether such defense may be based in public policy,
ambiguity, or otherwise. The Obligors and the Lenders acknowledge and agree that any Prepayment Premium due and payable in accordance
with this Agreement shall not constitute unmatured interest, whether under Section 5.02(b)(3) of the Bankruptcy Code
or otherwise. Each Obligor further acknowledges and agrees, and waives any argument to the contrary, that payment of such amount
does not constitute a penalty or an otherwise unenforceable or invalid obligation.


 






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Article 11


 


Guarantee


 


Section 11.01.   The
Guarantee. The Guarantors hereby jointly and severally guarantee to the Administrative
Agent and each Lender, and their respective successors and assigns, the prompt payment in full when due (whether at stated maturity,
by acceleration or otherwise) of the principal of and interest on the Term Loans, all fees and other amounts and Obligations from
time to time owing to the Administrative Agent and the Lenders by the Borrower under this Agreement or under any other Loan Document
and by any other Obligor under any of the Loan Documents, in each case strictly in accordance with the terms thereof (such obligations
being herein collectively called the “Guaranteed Obligations”). The Guarantors hereby further jointly and severally
agree that if the Borrower shall fail to pay in full when due (whether at stated maturity, by acceleration or otherwise) any of
the Guaranteed Obligations, the Guarantors will promptly pay the same, without any demand or notice whatsoever, and that in the
case of any extension of time of payment or renewal of any of the Guaranteed Obligations, the same will be promptly paid in full
when due (whether at extended maturity, by acceleration or otherwise) in accordance with the terms of such extension or renewal.


 


Section 11.02.   Obligations
Unconditional. The obligations of the Guarantors under Section 11.01 are absolute
and unconditional, joint and several, irrespective of the value, genuineness, validity, regularity or enforceability of the obligations
of the Borrower under this Agreement or any other agreement or instrument referred to herein, or any substitution, release or exchange
of any other guarantee of or security for any of the Guaranteed Obligations, and, to the fullest extent permitted by applicable
Law, irrespective of any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge or defense
of a surety or Guarantor, it being the intent of this Section 11.02 that the obligations of the Guarantors hereunder shall
be absolute and unconditional, joint and several, under any and all circumstances. Without limiting the generality of the foregoing,
it is agreed that the occurrence of any one or more of the following shall not alter or impair the liability of the Guarantors
hereunder, which shall remain absolute and unconditional as described above:


 


(a)            at
any time or from time to time, without notice to the Guarantors, the time for any performance of or compliance with any of the
Guaranteed Obligations shall be extended, or such performance or compliance shall be waived;


 


(b)           any
of the acts mentioned in any of the provisions of this Agreement or any other agreement or instrument referred to herein shall
be done or omitted;


 


(c)            the
maturity of any of the Guaranteed Obligations shall be accelerated, or any of the Guaranteed Obligations shall be modified, supplemented
or amended in any respect, or any right under this Agreement or any other agreement or instrument referred to herein shall be waived
or any other guarantee of any of the Guaranteed Obligations or any security therefor shall be released or exchanged in whole or
in part or otherwise dealt with; or


 






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(d)           any
lien or security interest granted to, or in favor of, any Lender as security for any of the Guaranteed Obligations shall fail
to be perfected.


 


The Guarantors hereby
expressly waive diligence, presentment, demand of payment, protest and all notices whatsoever, and any requirement that the Administrative
Agent or any Lender exhaust any right, power or remedy or proceed against the Borrower under this Agreement or any other agreement
or instrument referred to herein, or against any other Person under any other guarantee of, or security for, any of the Guaranteed
Obligations.


 


Section 11.03.   Reinstatement.
The obligations of the Guarantors under this Article 11 shall be automatically reinstated
if and to the extent that for any reason any payment by or on behalf of the Borrower in respect of the Guaranteed Obligations
is rescinded or must be otherwise restored by any holder of any of the Guaranteed Obligations, whether as a result of any proceedings
in bankruptcy or reorganization or otherwise, and the Guarantors jointly and severally agree that they will indemnify the Administrative
Agent and each Lender on demand for all reasonable costs and expenses (including reasonable fees of counsel) incurred by such
Persons in connection with such rescission or restoration, including any such reasonable costs and expenses incurred in defending
against any claim alleging that such payment constituted a preference, fraudulent transfer or similar payment under any bankruptcy,
insolvency or similar Law.


 


Section 11.04.   Subrogation.
The Guarantors hereby jointly and severally agree that, until the payment and satisfaction in full of all Guaranteed Obligations
(other than the Warrant Obligations) they shall not exercise any right or remedy arising by reason of any performance by them of
their guarantee in Section 11.01, whether by subrogation or otherwise, against the Borrower or any other guarantor of any
of the Guaranteed Obligations or any security for any of the Guaranteed Obligations.


 


Section 11.05.   Remedies.
The Guarantors jointly and severally agree that, as between the Guarantors, on one hand, and the Lenders, on the other hand, the
obligations of the Borrower under this Agreement and under the other Loan Documents may be declared to be forthwith due and payable
as provided in Article 10 (and shall be deemed to have become automatically due and payable in the circumstances provided
in Article 10) for purposes of Section 11.01 notwithstanding any stay, injunction or other prohibition preventing such
declaration (or such obligations from becoming automatically due and payable) as against the Borrower and that, in the event of
such declaration (or such obligations being deemed to have become automatically due and payable), such obligations (whether or
not due and payable by the Borrower) shall forthwith become due and payable by the Guarantors for purposes of Section 11.01.


 






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Section 11.06.   Instrument
for the Payment of Money. Each Guarantor hereby acknowledges that the guarantee in this
Article 11 constitutes an instrument for the payment of money, and consents and agrees that each Lender, at its sole option,
in the event of a dispute by such Guarantor in the payment of any moneys due hereunder, shall have the right to proceed by motion
for summary judgment in lieu of complaint pursuant to N.Y. Civ. Prac. L&R § 3213.


 


Section 11.07.   Continuing
Guarantee. The guarantee in this Article 11 is a continuing guarantee, and shall
apply to all Guaranteed Obligations whenever arising.


 


Section 11.08.   Rights
of Contribution. The Guarantors hereby agree, as between themselves, that if any Guarantor
shall become an Excess Funding Guarantor (as defined below) by reason of the payment by such Guarantor of any Guaranteed Obligations,
each other Guarantor shall, on demand of such Excess Funding Guarantor (but subject to the next sentence), pay to such Excess Funding
Guarantor an amount equal to such Guarantor’s Pro Rata Share (as defined below and determined, for this purpose, without
reference to the properties, debts and liabilities of such Excess Funding Guarantor) of the Excess Payment (as defined below) in
respect of such Guaranteed Obligations. The payment obligation of a Guarantor to any Excess Funding Guarantor under this Section 11.08
shall be subordinate and subject in right of payment to the prior payment in full of the obligations of such Guarantor under the
other provisions of this Article 11 and such Excess Funding Guarantor shall not exercise any right or remedy with respect
to such excess until payment and satisfaction in full of all of such obligations.


 


For purposes of this
Section 11.08, (i) “Excess Funding Guarantor” means, in respect of any Guaranteed Obligations, a Guarantor
that has paid an amount in excess of its Pro Rata Share of such Guaranteed Obligations, (ii) “Excess Payment”
means, in respect of any Guaranteed Obligations, the amount paid by an Excess Funding Guarantor in excess of its Pro Rata Share
of such Guaranteed Obligations and (iii) “Pro Rata Share” means, as of the date of determination, for any
Guarantor, the ratio (expressed as a percentage) of (x) the amount by which the aggregate present fair saleable value of all
properties of such Guarantor (excluding any shares of stock of any other Guarantor) exceeds the amount of all the debts and liabilities
of such Guarantor (including contingent, subordinated, unmatured and unliquidated liabilities, but excluding the obligations of
such Guarantor hereunder and any obligations of any other Guarantor that have been Guaranteed by such Guarantor) to (y) the
amount by which the aggregate fair saleable value of all properties of all of the Guarantors exceeds the amount of all the debts
and liabilities (including contingent, subordinated, unmatured and unliquidated liabilities, but excluding the obligations of the
Borrower and the Guarantors hereunder and under the other Loan Documents) of all of the Guarantors, determined (A) with respect
to any Guarantor that is a party hereto on the Closing Date, as of such date, and (B) with respect to any other Guarantor,
as of the date such Guarantor becomes a Guarantor hereunder.


 


Section 11.09.   General
Limitation on Guarantee Obligations. In any action or proceeding involving any provincial,
territorial or state corporate law, or any state or federal bankruptcy, insolvency, reorganization or other law affecting the
rights of creditors generally, if the obligations of any Guarantor under Section 11.01 would otherwise, taking into account
the provisions of Section 11.08, be held or determined to be void, invalid or unenforceable, or subordinated to the claims
of any other creditors, on account of the amount of its liability under Section 11.01, then, notwithstanding any other provision
hereof to the contrary, the amount of such liability shall, without any further action by such Guarantor, the Administrative Agent,
the Lenders or any other Person, be automatically limited and reduced to the highest amount that is valid and enforceable and
not subordinated to the claims of other creditors as determined in such action or proceeding.


 






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Article 12


 


Administrative
Agent


 


Section 12.01.   Appointment.
Each of the Lenders hereby irrevocably appoints Perceptive Credit Holdings III, LP, a Delaware limited partnership, to act on
its behalf as the Administrative Agent hereunder and under the other Loan Documents and authorizes the Administrative Agent to
take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof or
thereof, together with such actions and powers as are reasonably incidental thereto. The provisions of this Article 12 are
solely for the benefit of the Administrative Agent and the Lenders, and neither the Borrower nor any other Obligor will have rights
as a third-party beneficiary of any of such provisions. It is understood and agreed that the use of the term “agent”
herein or in any other Loan Documents (or any other similar term) with reference to the Administrative Agent is not intended to
connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable Law. Instead,
such term is used as a matter of market custom, and is intended to create or reflect only an administrative relationship between
contracting parties.


 


Section 12.02.   Rights
as a Lender. The Person serving as the Administrative Agent hereunder will have the same
rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative
Agent, and the term “Lender” or “Lenders” will, unless otherwise expressly indicated or unless the context
otherwise requires, include the Person serving as the Administrative Agent hereunder in its individual capacity to the extent
such Person is a Lender. The Lenders acknowledge and agree that such Person and its Affiliates may accept deposits from, lend
money to, own securities of, act as the financial advisor or in any other advisory capacity for, and generally engage in any kind
of business with, the Borrower, the other Obligors or any other Subsidiaries or Affiliates of the Obligors as if such Person were
not the Administrative Agent hereunder and without any duty to account therefor to the Lenders.


 


Section 12.03.   Exculpatory
Provisions. (a) The Administrative Agent will not have any duties or obligations
except those expressly set forth herein and in the other Loan Documents, and its duties hereunder are administrative in nature.
Without limiting the generality of the foregoing, the Administrative Agent:


 


(i)             will
not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing;


 


(ii)            will
not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers
expressly contemplated hereby or by the other Loan Documents that the Administrative Agent is required to exercise as directed
in writing by the Majority Lenders (or such other number or percentage of the Lenders as will be expressly provided for herein
or in the other Loan Documents); provided that the Administrative Agent will not be required to take any action that, in
its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document
or applicable Law, including any action that may be in violation of the automatic stay under any Insolvency Proceeding; and


 






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(iii)           will
not, except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and will not be liable for
the failure to disclose, any information relating to the Obligors or any of its Subsidiaries or Affiliates that is communicated
to or obtained by the Person serving as the Administrative Agent or any of its Affiliates in any capacity.


 


(b)           The
Administrative Agent will not be liable for any action taken or not taken by it (i) with the consent or at the request of
the Majority Lenders (or such other number or percentage of the Lenders as will be necessary, or as the Administrative Agent believes
in good faith will be necessary, under the circumstances), or (ii) in the absence of its own gross negligence or willful misconduct
as determined by a court of competent jurisdiction by final and non-appealable judgment. The Administrative Agent will be deemed
not to have knowledge of any Default unless and until notice describing such Default is given to the Administrative Agent in writing
by the Borrower or a Lender.


 


(c)            The
Administrative Agent will not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty
or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate,
report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or
observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any
Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any
other agreement, instrument or document or (v) the satisfaction of any condition set forth in Article 6 or elsewhere
herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent.


 


Section 12.04.   Reliance
by Administrative Agent. The Administrative Agent will be entitled to rely upon, and
will not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other
writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to
be genuine and to have been signed, sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely
upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and will not incur
any liability for relying thereon. In determining compliance with any condition hereunder to the making of the Term Loans that
by its terms must be fulfilled to the satisfaction of a Lender, the Administrative Agent may presume that such condition is satisfactory
to such Lender unless the Administrative Agent has received notice to the contrary from such Lender prior to the making of such
Term Loan. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants
and other experts selected by it, and will not be liable for any action taken or not taken by it in accordance with the advice
of any such counsel, accountants or experts.


 






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Section 12.05.   Delegation
of Duties. The Administrative Agent may perform any and all of its duties and
exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents
appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all of its
duties and exercise its rights and powers by or through their respective Affiliates. The exculpatory provisions of this
Article 12 will apply to any such sub-agent and to the Affiliates of the Administrative Agent and any such
sub-agent, and will apply to their respective activities in connection with the syndication of the facility as well as
activities as Administrative Agent. The Administrative Agent will not be responsible for the negligence or misconduct of any
sub-agents except to the extent that a court of competent jurisdiction determines in a final and non-appealable
judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such
sub-agents.


 


Section 12.06.   Resignation
of Agent. (a) The Administrative Agent may at any time give notice of its resignation
to the Lenders and the Borrower, which notice shall set forth the effective date of such resignation (the “Resignation
Effective Date”), such date not to be earlier than the thirtieth (30th) day following the date of such notice.
The Majority Lenders and the Borrower shall mutually agree upon a successor to the Administrative Agent. If the Majority Lenders
and the Borrower are unable to so mutually agree and no successor shall have been appointed within twenty-five (25) days
after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may (but will not
be obligated to), on behalf of the Lenders, appoint a successor Administrative Agent it shall designate (in its reasonable discretion
after consultation with the Borrower and the Majority Lenders). Whether or not a successor has been appointed, such resignation
will become effective in accordance with such notice on the Resignation Effective Date. Notwithstanding anything else in this agreement,
at all times the Administrative Agent shall be a U.S. Person.


 


(b)           With
effect from the Resignation Effective Date (i) the retiring Administrative Agent will be discharged from its duties and obligations
hereunder and under the other Loan Documents (except that in the case of any Collateral held by the Administrative Agent on behalf
of the Lenders under any of the Loan Documents, the retiring Administrative Agent will continue to hold such Collateral until such
time as a successor Administrative Agent is appointed) and (ii) except for any indemnity payments owed to the retiring Administrative
Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent will instead
be made by or to each Lender directly, until such time, if any, as the Majority Lenders appoint a successor Administrative Agent
as provided for above. Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, such successor
will succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Administrative Agent (other
than any rights to indemnity payments owed to the retiring Administrative Agent), and the retiring Administrative Agent will be
discharged from all of its duties and obligations hereunder or under the other Loan Documents. The fees payable by the Borrower
to a successor Administrative Agent will be the same as those payable to its predecessor unless otherwise agreed between the Borrower
and such successor. After the retiring Administrative Agent’s resignation hereunder and under the other Loan Documents, the
provisions of this Article 12 and Sections 13.03 and 13.06 will continue in effect for the benefit of such retiring Administrative
Agent, its sub-agents and their respective Affiliates in respect of any actions taken or omitted to be taken by any of them
while the retiring Administrative Agent was acting as Administrative Agent.


 






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Section 12.07.   Non-Reliance
on Administrative Agent and Other Lenders. Each Lender acknowledges that it has, independently
and without reliance upon the Administrative Agent or any other Lender or any of their Affiliates 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 the Administrative Agent or any other Lender or any of
their Affiliates and based on such documents and information as it will from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement
or any document furnished hereunder or thereunder.


 


Section 12.08.   Administrative
Agent May File Proofs of Claim. In case of the pendency of any Insolvency Proceeding
or any other judicial proceeding relative to the Borrower, the Administrative Agent (irrespective of whether the principal of
the Term Loans will then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the
Administrative Agent has made any demand on the Borrower) will be entitled and empowered (but not obligated), by intervention
in such proceeding or otherwise:


 


(a)            to
file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Term Loans and all
other Obligations that are owing and unpaid hereunder or under any other Loan Document and to file such other documents as may
be necessary or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim for the
reasonable compensation, expenses, disbursements and advances of the Lenders and the Administrative Agent and their respective
agents and counsel and all other amounts due the Lenders and the Administrative Agent under this Agreement or any other Loan Document)
allowed in such judicial proceeding; and


 


(b)           to
collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same.


 


Any custodian, receiver,
assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each
Lender to make any payments of the type described above in this Section 12.08 to the Administrative Agent and, in the event
that the Administrative Agent consents to the making of such payments directly to the Lenders, to pay to the Administrative Agent
any amount due for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its agents
and counsel, and any other amounts due the Administrative Agent under this Agreement or any other Loan Document.


 






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Section 12.09.   Collateral
and Guaranty Matters; Appointment of Collateral Agent. (a) Without limiting the
provisions of Section 12.08, the Lenders irrevocably agree as follows:


 


(i)             the
Administrative Agent is authorized, at its option and in its discretion, to release any Lien on any property granted to or held
by the Administrative Agent under any Loan Document (A) on the date when all Obligations have been satisfied in full in cash
(other than Warrant Obligations and contingent obligations as to which no claims have been asserted), (B) that is sold or
otherwise disposed of or to be sold or otherwise disposed of as part of or in connection with any sale or other disposition permitted
under the Loan Documents, or (C) subject to Sections 13.01 and 13.04, if approved, authorized or ratified in writing
by the Majority Lenders; and


 


(ii)            the
Administrative Agent is authorized, at its option and discretion, to release any Subsidiary Guarantor from its obligations hereunder
if such Person ceases to be a Subsidiary as a result of a transaction permitted under the Loan Documents.


 


Upon request by the
Administrative Agent at any time, each Lender will confirm in writing the Administrative Agent’s authority to release or
subordinate its interest in particular types or items of Collateral, or to release any Guarantor from its obligations under its
guaranty pursuant to this Section 12.09.


 


(b)           The
Administrative Agent will not be responsible for or have a duty to ascertain or inquire into any representation or warranty regarding
the existence, value or collectability of the Collateral, the existence, priority or perfection of the Administrative Agent’s
Lien thereon, or any certificate prepared by any Obligor in connection therewith, nor will the Administrative Agent be responsible
or liable to the Lenders for any failure to monitor or maintain any portion of the Collateral.


 


(c)            Each
Lender hereby appoints the Administrative Agent as its collateral agent under each of the Security Documents and agrees that, in
so acting, the Administrative Agent will have all of the rights, protections, exculpations, indemnities and other benefits provided
to the Administrative Agent under this Agreement, and hereby authorizes and directs the Administrative Agent, on behalf of such
Lender and all Lenders, without the necessity of any notice to or further consent from any of the Lenders, from time to time to
(i) take any action with respect to any Collateral or any Security Document which may be necessary to perfect and maintain
perfected the Liens on the Collateral granted pursuant to any such Security Document or protect and preserve the Administrative
Agent’s ability to enforce the Liens or realize upon the Collateral, (ii) act as collateral agent for each Lender for
purposes of acquiring, holding, enforcing and perfecting all Liens created by the Loan Documents and all other purposes stated
therein, (iii) enter into intercreditor or subordination agreements, as the case may be, in connection with Indebtedness permitted
pursuant to Section 9.01(e), (iv) enter into non-disturbance or similar agreements in connection with licensing agreements
and arrangements permitted by this Agreement and the other Loan Documents and (v) otherwise to take or refrain from taking
any and all action that the Administrative Agent shall deem necessary or advisable in fulfilling its role as collateral agent under
any of the Security Documents.


 






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Article 13


 


Miscellaneous


 


Section 13.01.      No
Waiver. No failure on the part of the Administrative Agent or the Lenders to exercise
and no delay in exercising, and no course of dealing with respect to, any right, power or privilege under any Loan Document shall
operate as a waiver thereof, nor shall any single or partial exercise of any right, power or privilege under any Loan Document
preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The remedies provided herein
are cumulative and not exclusive of any remedies provided by Law.


 


Section 13.02.      Notices.
All notices, requests, instructions, directions and other communications provided for herein (including any modifications of, or
waivers, requests or consents under, the Loan Documents) shall be given or made in writing (including by telecopy or electronic
mail) delivered, if to the Borrower, another Obligor, the Administrative Agent or the Lenders, to its address specified on the
signature pages hereto or its Guarantee Assumption Agreement, as the case may be, or at such other address as shall be designated
by such party in a notice to the other parties. Except as otherwise provided in this Agreement, all such communications shall be
deemed to have been duly given upon receipt of a legible copy thereof, in each case given or addressed as aforesaid. All such communications
provided for herein by telecopy or electronic mail shall be confirmed in writing promptly after the delivery of such communication
(it being understood that non-receipt of written confirmation of such communication shall not invalidate such communication).


 


Section 13.03.      Expenses, Indemnification,
Etc.


 


(a)           Expenses.
Each Obligor agrees to pay or reimburse (i) the Administrative Agent and the Lenders for all of their reasonable and documented
out of pocket costs and expenses (including the reasonable documented fees and expenses of Chapman and Cutler LLP, counsel to the
Administrative Agent) in connection with (x) the negotiation, preparation, execution and delivery of this Agreement and the
other Loan Documents and the making of the Tranche A Term Loan (exclusive of post-closing costs); provided that, so
long as the borrowing of the Tranche A Term Loan is made, such fees shall be credited against the Expense Deposit paid by the Borrower,
(y) post-closing costs and (z) the negotiation or preparation of any amendment, modification, supplement or waiver
of any of the terms of this Agreement or any of the other Loan Documents (whether or not consummated) and (ii) the Administrative
Agent and the Lenders for all of their reasonable and documented out of pocket costs and expenses (including the reasonable fees
and expenses of legal counsel) in connection with any enforcement or collection proceedings resulting from the occurrence of an
Event of Default.


 


(b)          Indemnification.
Each Obligor hereby indemnifies the Administrative Agent, the Lenders, their respective Affiliates, and their respective directors,
officers, employees, attorneys, agents and advisors (each, an “Indemnified Party”) from and against, and agrees
to hold them harmless against, any and all Claims and Losses of any kind (including reasonable fees and disbursements of counsel),
joint or several, that is incurred by or asserted or awarded against any Indemnified Party, in each case arising out of or in
connection with or relating to any investigation, litigation or proceeding or the preparation of any defense with respect thereto
arising out of or in connection with or relating to this Agreement or any of the other Loan Documents or the Transactions or any
use made or proposed to be made with the proceeds of the Term Loans, whether or not such investigation, litigation or proceeding
is brought by an Obligor, any of its shareholders or creditors, an Indemnified Party or any other Person, or an Indemnified Party
is otherwise a party thereto, and whether or not any of the conditions precedent set forth in Article 6 are satisfied or
the other transactions contemplated by this Agreement are consummated, except to the extent such Claim or Loss is found in a final,
non-appealable judgment by a court of competent jurisdiction to have resulted from any Indemnified Party’s gross negligence
or willful misconduct. No Obligor shall assert any claim against any Indemnified Party, on any theory of liability, for consequential,
indirect, special or punitive damages arising out of or otherwise relating to this Agreement or any of the other Loan Documents
or any of the Transactions or the actual or proposed use of the proceeds of the Term Loans. This Section shall not apply
to Taxes other than Taxes relating to a non-Tax Claim or Loss governed by this Section 13.03(b).


 






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Section 13.04.      Amendments,
Etc. Except as otherwise expressly provided in this Agreement, any provision of this Agreement
or any other Loan Document (except for the Warrant, which may be amended, modified, waived or supplemented in accordance with the
terms thereof) may be amended, modified, waived or supplemented only by an instrument in writing signed by the Borrower, the Administrative
Agent and the Majority Lenders; provided that:


 


(a)            no
amendment, waiver or consent shall, unless in writing and signed by all of the Lenders, do any of the following at any time:


 


(i)            change
the number of Lenders or the percentage of (x) the Commitments or (y) the aggregate unpaid principal amount of the Term
Loans that, in each case, shall be required for the Lenders or any of them to take any action hereunder (including pursuant to
any change to the definition of “Majority Lenders”);


 


(ii)            release
one or more Guarantors (or otherwise limit such Guarantors’ liability with respect to the Obligations owing to the Lenders
under the Guarantees) if such release or limitation is in respect of all or substantially all of the value represented by the Guarantees
to the Lenders;


 


(iii)           release,
or subordinate the Lenders’ Liens in, all or substantially all of the Collateral in any transaction or series of related
transactions (other than in connection with any sale of Collateral permitted herein); or


 


(iv)          amend
any provision of this Section 13.04;


 


(b)           no
amendment, waiver or consent shall, unless in writing and signed by each Lender specified below for such amendment, waiver or consent:


 


(i)            increase
the Commitments of a Lender without the consent of such Lender;


 






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(ii)            reduce
the principal of, or stated rate of interest on, or stated Prepayment Premium payable on, the Term Loans owed to a Lender or any
fees or other amounts stated to be payable hereunder or under the other Loan Documents to such Lender without the consent of such
Lender;


 


(iii)           postpone
any date scheduled for any payment of principal of, or interest on, the Term Loans, any date scheduled for payment or for any date
fixed for any payment of fees hereunder (excluding the due date of any mandatory prepayment of a Term Loan), in each case payable
to a Lender without the consent of such Lender;


 


(iv)          change
the order of application of prepayment of the Term Loans from the application thereof set forth in the applicable provisions of
Section 4.01(b) or Section 4.01(c) in any manner that adversely affects the Lenders without the consent of
holders of a majority of the Commitments or Term Loans outstanding or otherwise change any provision requiring the pro rata distributions
hereunder among the Lenders without all Lenders’ consent; or


 


(v)           modify
Section 2.02 without the consent of each Lender directly and adversely affected thereby.


 


Section 13.05.      Successors
and Assigns.


 


(a)           General.
The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors
and assigns permitted hereby, except that (i) no Obligor may assign or otherwise transfer any of its rights or obligations
hereunder without the prior written consent of the Administrative Agent and each Lender (and any attempted assignment or transfer
by such Obligor without such consent shall be null and void) and (ii) no Lender may assign or otherwise transfer its rights
or obligations hereunder except in accordance with this Section. Nothing in this Agreement, expressed or implied, shall be construed
to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants
(to the extent provided in paragraph (e) of this Section) and, to the extent expressly contemplated hereby, the Indemnified
Parties of the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.


 


(b)           Amendments
to Loan Documents; Majority Lender Vote. Each of the Lenders and the Obligors agrees to enter into such amendments to the Loan
Documents, and such additional Security Documents and other instruments and agreements, in each case in form and substance reasonably
acceptable to the Lenders and the Obligors, as shall reasonably be necessary to implement and give effect to any assignment properly
made by any Lender (or any direct or indirect assignee thereof) from time to time in accordance with this Section 13.05.


 


(c)           Assignments
by Lenders. (i) Subject to the conditions set forth in paragraph (c)(ii) below, any Lender may assign to one
or more Persons (other than an Ineligible Assignee) all or a portion of its rights and obligations under the Loan Documents (including
all or a portion of its Commitment and the Term Loans at the time owing to it) with the prior written consent (such consent not
to be unreasonably withheld) of the Administrative Agent, provided that no consent of the Administrative Agent shall be required
for an assignment of any Commitment or of all or any portion of a Term Loan to a Lender, an Affiliate of a Lender or an Approved
Fund.


 






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(ii)           Assignments
shall be subject to the following additional conditions:


 


(A)          except
in the case of an assignment to a Lender or an Affiliate of a Lender or an assignment of the entire remaining amount of the assigning
Lender’s Commitment or Term Loans, the amount of the Commitment or Term Loans of the assigning Lender subject to each such
assignment (determined as of the date the Assignment Agreement with respect to such assignment is delivered to the Administrative
Agent) shall not be less than $500,000, unless the Administrative Agent otherwise consents;


 


(B)           each
partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations
under this Agreement and the other Loan Documents; and


 


(C)           the
parties to each assignment shall execute and deliver to the Administrative Agent an Assignment Agreement in form and substance
reasonably satisfactory to Administrative Agent.


 


For the purposes
of this Section 13.05(c), the term “Approved Fund” and “Ineligible Assignee” have the following meanings:


 


“Approved
Fund” means any Person (other than a natural person) that is engaged in making, purchasing, holding or investing in bank
loans and similar extensions of credit in the ordinary course of its business and that is administered or managed by (a) a
Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.


 


“Ineligible
Assignee” means (a) a natural person or (b) the Obligors or any of their respective Affiliates.


 


(iii)           Subject
to acceptance and recording thereof pursuant to paragraph (d) of this Section, from and after the effective date specified
in each Assignment Agreement, the assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such
Assignment Agreement, have the rights and obligations of a Lender under the Loan Documents, and the assigning Lender thereunder
shall, to the extent of the interest assigned by such Assignment Agreement, be released from its obligations under the Loan Documents
(and, in the case of an Assignment Agreement covering all of the assigning Lender’s rights and obligations under the Loan
Documents, such Lender shall cease to be a party hereto). Any assignment or transfer by a Lender of rights or obligations under
the Loan Documents that does not comply with this Section 13.05 shall be treated for purposes of the Loan Documents as a sale
by such Lender of a participation in such rights and obligations in accordance with paragraph (e) of this Section.


 






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(d)           Register.
The Administrative Agent, acting for this purpose as a non-fiduciary agent of the Borrower, shall maintain at one of its
offices a copy of each Assignment Agreement delivered to it and a register for the recordation of the names and addresses of the
Lenders, and the Commitment of, and principal amount (and stated interest) of the Term Loans owing to, each Lender pursuant to
the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive absent
manifest error, and the Borrower, the Administrative Agent, and the Lenders shall treat each Person whose name is recorded in
the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to
the contrary. The Register shall be available for inspection by the Borrower and any Lender, at any reasonable time and from time
to time upon reasonable prior notice. No assignment shall be effective for purposes of this Agreement unless (i) it has been
recorded in the Register as provided in this paragraph and (ii) any written consent to such assignment required by paragraph
(b) of this Section has been obtained.


 


(e)            Participations.
Any Lender may at any time, without the consent of, or notice to, the Borrower, sell participations to any Person (a “Participant”),
other than a natural person, in all or a portion of such Lender’s rights and obligations under the Loan Documents (including
all or a portion of its Commitment and the Term Loans owing to it); provided that (i) such Lender’s obligations
under the Loan Documents shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto
for the performance of such obligations and (iii) the Borrower shall continue to deal solely and directly with such Lender
in connection therewith.


 


(f)            Any
agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole
right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided
that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment,
modification or waiver that would (i) increase or extend the term of such Lender’s Commitment, (ii) extend the
date fixed for the payment of principal of or interest on the Term Loans or any portion of any fee hereunder payable to the Participant,
(iii) reduce the amount of any such payment of principal, or (iv) reduce the rate at which interest is payable thereon
to a level below the rate at which the Participant is entitled to receive such interest. The Borrower agrees that each Participant
shall be entitled to the benefits of Section 5.03 (subject to the requirements and limitations therein, including the requirements
under Section 5.03(e) (it being understood that the documentation required under Section 5.03(e) shall be delivered
to the Borrower and the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment
pursuant to Section 13.05(a), provided that such Participant (A) agrees to be subject to the provisions of Section 5.03(g) as
if it were an assignee under Section 13.05(a); and (B) shall not be entitled to receive any greater payment under Section 5.03,
with respect to any participation, than its participating Lender would have been entitled to receive, unless the sale of the participation
to such Participant is made with the Borrower’s prior written consent. To the extent permitted by law, each Participant also
shall be entitled to the benefits of Section 4.04(a) as though it were a Lender. Each Lender that sells a participation
shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the
name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the
Term Loans or other obligations under the Loan Documents (the “Participant Register”); provided that
no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant
or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations
under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment,
loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury
Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each
Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement
notwithstanding any notice to the contrary.


 






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(g)           Certain
Pledges. Subject to Section 13.05(d), the Lenders may at any time pledge or assign a security interest in all or any portion
of its rights under this Agreement and any other Loan Document to secure obligations of the Lenders, including any pledge or assignment
to secure obligations to a Federal Reserve Bank or another central bank; provided that no such pledge or assignment shall
release the Lenders from any of their obligations hereunder or substitute any such pledgee or assignee for the Lenders as a party
hereto.


 


Section 13.06.      Survival.
The obligations of the Borrower under Sections 5.01, 5.02, 5.03, 13.03, 13.05, 13.09, 13.10, 13.11, 13.12, 13.14, 13.15 and
Article 11 (solely to the extent guaranteeing any of the obligations under the foregoing Sections) shall survive the repayment
of the Obligations and the termination of the Commitments and, in the case of any Lender’s assignment of any interest in
the Commitments or the Term Loans hereunder, shall survive, in the case of any event or circumstance that occurred prior to the
effective date of such assignment, the making of such assignment, notwithstanding that such Lenders may cease to be a “Lender”
hereunder. In addition, each representation and warranty made, or deemed to be made by a notice of the Term Loans, herein or pursuant
hereto shall survive the making of such representation and warranty.


 


Section 13.07.  Captions.
The table of contents and captions and section headings appearing herein are included solely for convenience of reference and are
not intended to affect the interpretation of any provision of this Agreement.


 


Section 13.08.  Counterparts.
This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument
and any of the parties hereto may execute this Agreement by signing any such counterpart. Delivery of an executed signature page of
this Agreement by facsimile transmission or electronic transmission (in PDF format) shall be effective as delivery of a manually
executed counterpart hereof.


 


Section 13.09.  Governing
Law. This Agreement and the other Loan Documents,
the rights and obligations of the parties hereunder and thereunder, and all claims, disputes and matters arising hereunder or thereunder
or related hereto or thereto, shall be governed by, and construed in accordance with, the laws of the State of New York applicable
to contracts executed in and to be performed entirely within that state, without reference to conflicts of laws provisions (other
than Section 5-1401 of the New York General Obligations Law).


 






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Section 13.10.  Jurisdiction,
Service of Process and Venue.


 


(a)            Submission
to Jurisdiction. Each Obligor agrees that any suit, action or proceeding with respect to this Agreement or any other Loan Document
to which it is a party or any judgment entered by any court in respect thereof shall be brought in the Supreme Court of the State
of New York sitting in New York County or in the United States District Court for the Southern District of New York
and irrevocably submits to the exclusive jurisdiction of each such court for the purpose of any such suit, action, proceeding or
judgment.


 


(b)           Alternative
Process. Nothing herein shall in any way be deemed to limit the ability of the Lenders to serve any such process or summonses
in any other manner permitted by applicable Law.


 


(c)           Waiver
of Venue, Etc. Each Obligor irrevocably waives to the fullest extent permitted by law any objection that it may now or hereafter
have to the laying of the venue of any suit, action or proceeding arising out of or relating to this Agreement or any other Loan
Document and hereby further irrevocably waives to the fullest extent permitted by law any claim that any such suit, action or proceeding
brought in any such court has been brought in an inconvenient forum. A final judgment (in respect of which time for all appeals
has elapsed) in any such suit, action or proceeding shall be conclusive and may be enforced in any court to the jurisdiction of
which such Obligor is or may be subject, by suit upon judgment.


 


Section 13.11.  Waiver
of Jury Trial. Each party hereto hereby
irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any suit, action or
proceeding arising out of or relating to this Agreement, the other loan documents or the transactions contemplated hereby or thereby.


 


Section 13.12.  Waiver
of Immunity. To the extent that any Obligor may
be or become entitled to claim for itself or its property or revenues any immunity on the ground of sovereignty or the like from
suit, court jurisdiction, attachment prior to judgment, attachment in aid of execution of a judgment or execution of a judgment,
and to the extent that in any such jurisdiction there may be attributed such an immunity (whether or not claimed), such obligor
hereby irrevocably agrees not to claim and hereby irrevocably waives such immunity with respect to its obligations under this Agreement
and the other Loan Documents.


 


Section 13.13.  Entire
Agreement. This Agreement and the other Loan Documents constitute the entire agreement
among the parties with respect to the subject matter hereof and thereof and supersede any and all previous agreements and understandings,
oral or written, relating to the subject matter hereof. Each Obligor acknowledges, represents and warrants that in deciding to
enter into this Agreement and the other Loan Documents or in taking or not taking any action hereunder or thereunder, it has not
relied, and will not rely, on any statement, representation, warranty, covenant, agreement or understanding, whether written or
oral, of or with the Lenders other than those expressly set forth in this Agreement and the other Loan Documents.


 






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Section 13.14.  Severability.
If any provision hereof is found by a court to be invalid or unenforceable, to the fullest
extent permitted by applicable Law the parties agree that such invalidity or unenforceability shall not impair the validity or
enforceability of any other provision hereof.


 


Section 13.15.  No
Fiduciary Relationship.  The Borrower acknowledges that the Lenders have no fiduciary
relationship with, or fiduciary duty to, the Borrower arising out of or in connection with this Agreement or the other Loan Documents,
and the relationship between the Lenders and the Borrower are solely that of creditors and debtor. This Agreement and the other
Loan Documents do not create a joint venture among the parties.


 


Section 13.16.  USA
Patriot Act. The Lenders hereby notify the Borrower that pursuant to the requirements
of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)) (the “Act”), they are required to obtain, verify and record information that identifies the Borrower,
which information includes the name and address of the Borrower and other information that will allow such Lender to identify the
Borrower in accordance with the Act.


 


Section 13.17.  Treatment
of Certain Information; Confidentiality. The Lenders agree to maintain the confidentiality
of the Information (as defined below), except that Information may be disclosed to (a) its Affiliates and to its and its
Affiliates’ respective partners, directors, officers, employees, agents, trustees, advisors and representatives (collectively,
“Representatives”) (it being understood that the Persons to whom such disclosure is made will be informed of
the confidential nature of such information and instructed to keep such Information confidential), (b) to the extent requested
by any regulatory authority purporting to have jurisdiction over it (including any self-regulatory authority, such as FINRA
or the National Association of Insurance Commissioners) or any exchange, (c) to the extent required by the applicable Laws
or by any subpoena or similar legal process, (d) to any other party hereto, (e) in connection with the exercise of any
remedies hereunder or under any other Loan Document or any action or proceeding relating to this Agreement or any other Loan Document
or the enforcement of rights hereunder or thereunder, (f) subject to an agreement containing provisions substantially the
same as those in this Section, to (i) any assignee of or Participant in, or any prospective assignee of or Participant in,
any of its rights or obligations under this Agreement or (ii) any actual or prospective counterparty (or its advisors) to
any swap or derivative transaction relating to the Borrower or any Guarantor and its obligation, (g) with the consent of
the Borrower or (h) to the extent such Information (x) becomes publicly available other than as a result of a breach
of this Section or (y) becomes available to the Lender, or any of its respective Representatives on a nonconfidential
basis from a source other than the Borrower or any other Obligor. For purposes of this Section, “Information”
means all information received from an Obligor relating to an Obligor or its Subsidiary or any of their respective businesses,
except that the term “Information” shall not include, and the Lenders shall not be subject to any confidentiality
obligation with respect to any information that (i) is or becomes available to the Lender or any of its Representatives on
a nonconfidential basis prior to disclosure by an Obligor or its Subsidiary, (ii) becomes available to a Lender or any of
its Representatives after disclosure by the Borrower or any other Obligor from a source that, to the knowledge of such Lender,
is not subject to a confidentiality obligation to the Borrower or such other Obligor, (iii) is or becomes publicly available
other than as a result of a breach by such Lender, or (iv) is developed by a Lender or any of its Representatives. Any Person
required to maintain the confidentiality of Information as provided in this Section shall be considered to have complied
with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information
as such Person would accord to its own confidential information.


 






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In the case of any
Lender that has elected to receive material non-public information pursuant to Section 8.02, such Lender acknowledges
that (a) the Information may include material non-public information concerning an Obligor or its Subsidiary, as the case
may be, (b) it has developed compliance procedures regarding the use of material non-public information and (c) it
will handle such material non-public information in accordance with applicable Law, including United States federal and state
securities Laws.


 


Section 13.18.  Releases
of Guarantees and Liens. (a) Notwithstanding anything to the contrary contained herein
or in any other Loan Document, each Lender agrees, and the Administrative Agent is hereby irrevocably authorized by each Lender
and given a limited power of attorney by each Lender to perform the actions described hereafter in this Section 13.18 (without
requirement of notice to or consent of any Lender except as expressly required by Section 13.04) to take any action reasonably
requested by the Borrower having the effect of releasing any Collateral or Obligations (i) to the extent necessary to permit
consummation of any transaction not prohibited by any Loan Document or that has been consented to by the Lenders or (ii) under
the circumstances described in paragraph (b) below.


 


(b)           At
such time as the Term Loans and the other Obligations (other than the inchoate indemnity obligations and the Warrant Obligations)
under the Loan Documents shall have been paid in full in cash and the Commitments have been terminated, the Collateral shall be
released from the Liens created by the Security Documents, and the Security Documents and all obligations (other than those expressly
stated to survive such termination) of the Administrative Agent and each Obligor under the Security Documents shall terminate,
all without delivery of any instrument or performance of any act by any Person.


 


Section 13.19.  Acknowledgement
and Consent to Bail-In of EEA Financial Institutions. Notwithstanding anything to
the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto
acknowledges that any liability of any EEA Financial Institution arising under any Loan Document, to the extent such liability
is unsecured, may be subject to the write-down and conversion powers of an EEA Resolution Authority and agrees and consents
to, and acknowledges and agrees to be bound by:


 


(a)            the
application of any Write-Down and Conversion Powers by an EEA Resolution Authority to any such liabilities arising hereunder
which may be payable to it by any party hereto that is an EEA Financial Institution; and


 






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(b)           the
effects of any Bail-In Action on any such liability, including, if applicable:


 


(i)             a
reduction in full or in part or cancellation of any such liability;


 


(ii)            a
conversion of all, or a portion of, such liability into shares or other instruments of ownership in such EEA Financial Institution,
its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or
other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement
or any other Loan Document; or


 


(iii)           the
variation of the terms of such liability in connection with the exercise of the write-down and conversion powers of any EEA
Resolution Authority.


 


[Remainder of the Page Intentionally
Left Blank; Signature Pages Follow]


 






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In
Witness Whereof, the parties hereto have caused this Agreement to be duly executed and delivered as of the day and year
first above written.


 


		Borrower:
	 	 
	 	Agile Therapeutics, Inc.
	 	 
	 	By:	/s/ Dennis Reilly
	 	 	Name: Dennis Reilly
	 	 	Title: Chief Financial Officer and Treasurer
	 	 	 
	 	Address for Notices:
	 	 
	 	Agile Therapeutics, Inc.
	 	101 Poor Farm Road
	 	3rd Floor
	 	Princeton, New Jersey 18540
	 	Attention: Dennis Reilly
	 	 
	 	With a copy to (which shall not constitute notice):
	 	 
	 	Morgan, Lewis & Bockius LLP
	 	1701 Market Street
	 	Philadelphia, PA 19103-2921
	 	Attention: Andrew Budreika




 


[Signature Page to Credit Agreement
and Guaranty]


 






    


     


    

 


Lenders:


 


Perceptive Credit Holdings
III, LP


 


By:  Perceptive
Credit Opportunities GP, LLC, its general partner


 


 


	By:	/s/ Sandeep Dixit	 
	Name: Sandeep Dixit	 
	Title: Chief Credit Officer	 
	 	 
	By:	/s/ Sam Chawla	 
	Name: Sam Chawla	 
	Title: Portfolio Manager	 




 


Address for Notices:


 


Perceptive Credit Holdings III, LP


c/o Perceptive Advisors LLC


51 Astor Place


10th Floor


New York, New York 10003


Attention: Sandeep Dixit


E-mail: Sandeep@perceptivelife.com;
PCOFReporting@perceptivelife.com


 


with a copy to:


 


Chapman and Cutler LLP 


1270 Avenue of the Americas 


30th Floor 


New York, New York 10020-1708


Attention: Nicholas Whitney 


E-mail: Whitney@chapman.com


 


[Signature Page to Credit Agreement
and Guaranty]


 






    


     


    

 


Administrative Agent:


 


Perceptive Credit Holdings
III, LP


 


By: Perceptive
Credit Opportunities GP, LLC, its general partner


 


 





	By:	/s/ Sandeep Dixit	 
	Name: Sandeep Dixit	 
	Title: Chief Credit Officer	 
	 	 
	By:	/s/ Sam Chawla	 
	Name: Sam Chawla	 
	Title: Portfolio Manager	 




 


Address for Notices:


 


Perceptive Credit Holdings III, LP 


c/o Perceptive Advisors LLC 


51 Astor Place 


10th Floor 


New York, New York 10003 


Attention: Sandeep Dixit 


E-mail: Sandeep@perceptivelife.com;
PCOFReporting@perceptivelife.com


 


with a copy to:


 


Chapman and Cutler LLP 


1270 Avenue of the Americas 


30th Floor 


New York, New York 10020-1708 


Attention: Nicholas Whitney 


E-mail: Whitney@chapman.com


 






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