TWENTIETH AMENDMENT TO BRIDGE LOAN AGREEMENT AND CONSENT

ARTICLE V

 

 

So long as any amount of the Term Loan or other Obligation hereunder shall remain outstanding, unpaid or unsatisfied, the Loan Parties shall, and shall cause each Subsidiary to:

 

SECTION 5.01. Use of Proceeds. Use the proceeds of the Term Loan to pay the transaction costs and expenses in respect of this Agreement and the transactions thereunder and for general corporate purposes only.

 

 

 

SECTION 5.03. Maintenance of Collateral Perfection.

 

 

(b)          Furthermore, each Loan Party also hereby irrevocably makes, constitutes and  appoints the Administrative Agent, its nominee or any other person whom the Administrative Agent  may designate, as such Loan Party’s attorney in fact with full power and for the limited purpose to sign  in the name of such Loan Party any financing statements, or amendments and supplements to financing  statements, renewal financing statements, notices or any similar documents which in the  Administrative Agent's reasonable discretion would be necessary or appropriate in order to perfect and  maintain perfection of the security interests granted hereunder, such power, being coupled with an  interest, being and remaining irrevocable until such time as the Obligations arising under the Loan  Documents have been paid in full. Each Loan Party hereby agrees that a carbon, photographic or other  reproduction of this Agreement or any such financing statement is sufficient for filing as a financing  statement by the Administrative Agent without notice thereof to such Loan Party wherever the  Administrative Agent may in its sole discretion desire to file the same.

 

(c)          Each Loan Party shall, and shall cause each Subsidiary to, if any Collateral is at  any time in the possession or control of a warehouseman, bailee or any agent or processor of such Loan  Party and the Administrative Agent so requests, (i) notify such Person in writing of the Administrative  Agent’s security interest therein, (ii) instruct such Person to hold all such Collateral for the  Administrative Agent’s account and subject to the Administrative Agent’s instructions and (iii) use  reasonable best efforts to obtain a written acknowledgment from such Person that it is holding such  Collateral for the benefit of the Administrative Agent.

 

(d)         Each Loan Party shall promptly notify the Administrative Agent of any and all  Commercial Tort Claims by or in favor of such Loan Party seeking damages in excess of $500,000 and  (ii) execute and deliver such statements, documents and notices and do and cause to be done all such  things as may be required by the Administrative Agent, or required by Law to create, preserve, perfect  and maintain the Administrative Agent’s security interest in any Commercial Tort Claims initiated by  or in favor of any Loan Party.

 

(e)          In the event for any reason the law of any jurisdiction other than New York (or  the Province of Ontario with respect to the Collateral of Venus Canada or the Equity Interests of Venus  Canada) becomes or is applicable to the Collateral of any Loan Party or any part thereof, or to any of  the Obligations, such Loan Party agrees to execute and deliver all such instruments and to do all such  other things as the Administrative Agent in its reasonable discretion deems necessary, appropriate or  convenient to preserve, protect and enforce the security interests of the Administrative Agent under the  law of such other jurisdiction (and, if a Loan Party shall fail to do so promptly upon the written request  of the Administrative Agent, then the Administrative Agent may execute any and all such requested  documents on behalf of such Loan Party pursuant to the power of attorney granted hereinabove).

 

SECTION 5.04. Payment of Taxes. Timely pay, discharge or otherwise satisfy, as the same shall become due and payable, all of its obligations and liabilities in respect of taxes, assessments and governmental charges or levies imposed upon it or upon its income or profits or in respect of its property, except, in each case, to the extent any such tax, assessment, charge or levy is being contested in good faith and by appropriate proceedings for which appropriate reserves have been established in accordance with GAAP.

 

SECTION 5.05. Preservation of Existence. (a) Preserve, renew and maintain in full force and effect its legal existence under the Laws of its jurisdiction of organization and (b) take all commercially reasonable action to maintain all corporate rights and privileges (including its good standing) except, in the case of this clause (b), to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.

 

SECTION 5.06. Compliance with Laws. Comply in all material respects with the requirements of all Laws and all orders, writs, injunctions and decrees of any Governmental Authority applicable to it or to its business or property, except if the failure to comply therewith could not reasonably be expected to have a Material Adverse Effect.

 

SECTION 5.07. Additional Subsidiaries.Cause each wholly-owned Subsidiary formed or acquired after the Effective Date to execute and deliver to the Administrative Agent promptly, and in any event within 10 days after the formation or acquisition of such Subsidiary, (a) a joinder agreement in form and substance satisfactory to the Administrative Agent pursuant to which such Subsidiary shall be made a party to this Agreement as a Guarantor and (b) such other agreements, instruments, approvals or other documents as the Administrative Agent may reasonably request, unless the Administrative Agent waives such requirements for a Subsidiary that contributes a de minimis amount to the Loan Parties’ consolidated gross revenue; provided, that, until September 30October 31, 2025, the Loan Parties shall not be required to execute and deliver the items referenced in clauses (a)  and (b) of this Section 5.07 in respect of Meta Robotics LLC, except as may be reasonably requested by the Administrative Agent.

 

SECTION 5.08. Maintenance of Properties. (a) Maintain, preserve and protect all of its material properties and equipment necessary in the operation of its business in good working order and condition, ordinary wear and tear excepted; and (b) make all necessary repairs thereto and renewals and replacements thereof except where the failure to do so could not reasonably be expected to have a Material Adverse Effect.

 

SECTION 5.09. Maintenance of Insurance. Maintain with financially sound and reputable insurance companies not Affiliates of any Loan Party, insurance with respect to its properties and business against loss or damage of the kinds customarily insured against by Persons engaged in the same or similar business, of such types and in such amounts as are customarily carried under similar circumstances by such other Persons.

 

SECTION 5.10. Pledged Assets.

 

(a)          Equity Interests. Cause one hundred percent (100%) of the issued and outstanding Equity Interests of each Subsidiary directly owned by a Loan Party to be subject at all times to a first priority, perfected Lien in favor of the Administrative Agent, for the benefit of the Secured Parties, together with opinions of counsel and any filings and deliveries necessary in connection therewith to perfect the security interests therein, all in form and substance reasonably satisfactory to the Administrative Agent and the Required Lenders; provided, that, it is understood and agreed that, unless requested by the Administrative Agent in its sole discretion, no action by any Loan Party shall be required under the laws of any jurisdiction other than the United States (or any state thereof or the District of Columbia) and Canada (or any province or territory thereof) with respect to such Loan Party’s pledge of its Equity Interests in any Foreign Subsidiary. Each Loan Party shall, and  shall cause each Subsidiary to, deliver to the Administrative Agent promptly upon the receipt there of by or on behalf of a Loan Party, all certificates and instruments constituting Pledged Equity. Prior to  delivery to the Administrative Agent, all such certificates constituting Pledged Equity shall be held in  trust by such Loan Party for the benefit of the Administrative Agent pursuant hereto. All such  certificates representing Pledged Equity shall be delivered in suitable form for transfer by delivery or  shall be accompanied by duly executed instruments of transfer or assignment in blank, substantially in  a form reasonably acceptable to the Administrative Agent. No Loan Party shall, without executing and  delivering, or causing to be executed and delivered, to the Administrative Agent such agreements,  documents and instruments as the Administrative Agent may reasonably require, issue or acquire any  Pledged Equity consisting of an interest in a partnership or a limited liability company that (i) is dealt  in or traded on a securities exchange or in a securities market, (ii) by its terms expressly provides that it  is a security governed by Article 8 of the UCC, (iii) is an investment company security, (iv) is held in a  securities account or (v) constitutes a security or a financial asset.

(b)          Other Property. Cause all property (other than Excluded Property) of each Loan Party to be subject at all times to first priority, perfected Liens in favor of the Administrative Agent to secure the Obligations or, with respect to any such property acquired subsequent to the Closing Date, such other additional security documents required to perfect the Liens of the Administrative Agent, for the benefit of the Secured Parties, granted under the Loan Documents as the Required Lenders shall reasonably request and, in connection with the foregoing, deliver to the Administrative Agent (for further distribution to the Lenders) such other documentation as the Administrative Agent may request including filings and deliveries necessary to perfect such Liens, organizational documents and favorable opinions of counsel to such Person, all in form, content and scope reasonably satisfactory to the Administrative Agent.

 

 

(a)          Maintain proper books of record and account, in which full, true and correct entries in conformity with GAAP consistently applied shall be made of all financial transactions and matters involving the assets and business of such Loan Party or such Subsidiary, as the case may be.

 

(b)         Maintain such books of record and account in material conformity with all applicable requirements of any Governmental Authority having regulatory jurisdiction over such Loan Party or such Subsidiary, as the case may be.

 

SECTION 5.12. ERISA and Canadian Pension Plans.

 

(a)          Do, and cause each of its ERISA Affiliates to do, each of the following: (i) maintain  each Plan in compliance in all material respects with the applicable provisions of ERISA, the Internal  Revenue Code and other federal or state law, (ii) cause each Plan that is qualified under Section 401(a) of  the Internal Revenue Code to maintain such qualification, and (iii) make all required contributions to any  Plan subject to Section 412, Section 430 or Section 431 of the Internal Revenue Code.

 

(b)         Do each of the following: (i) maintain each Canadian Pension Plan in compliance in all  material respects with the applicable provisions of applicable Law, (ii) cause each Canadian Pension Plan  that has received a confirmation of registration from the Canada Revenue Agency to maintain such  registration, (iii) make all required contributions to any Canadian Pension Plan and (iv) not, maintain, contribute to, or have any liability or contingent liability with respect to, a Canadian Defined Benefit  Pension Plan.

 

(a)         Not do any act or omit to do any act whereby any material Copyright may become invalidated and (A) not do any act, or omit to do any act, whereby any material Copyright may  become injected into the public domain; (B) notify the Administrative Agent immediately if it knows that  any material Copyright may become injected into the public domain or of any materially adverse  determination or development (including, without limitation, the institution of, or any such determination  or development in, any court or tribunal in the United States, Canada or any other country) regarding a  Loan Party’s ownership of any such Copyright or its validity; (C) take all commercially reasonable steps  as it shall deem appropriate under the circumstances, to maintain and pursue each application (and to  obtain the relevant registration) of each material Copyright owned by a Loan Party and to maintain each  registration of each material Copyright owned by a Loan Party including, without limitation, filing of  applications for renewal where necessary; and (D) promptly notify the Administrative Agent of any  material infringement of any material Copyright of a Loan Party of which it becomes aware and take  such commercially reasonable actions as it shall reasonably deem appropriate under the circumstances to  protect such Copyright, including, where appropriate, the bringing of suit for infringement, seeking  injunctive relief and seeking to recover any and all damages for such infringement.

 

(b)         Not make any assignment or agreement in conflict with the security interest in  the Copyrights of each Loan Party hereunder (except as permitted by the Credit Agreement).

 

(c)         (A) Continue to use each material Trademark that is necessary in the conduct of  any Loan Party’s business on each and every trademark class of goods applicable to its current line as  reflected in its current catalogs, brochures and price lists in order to maintain such Trademark in full  force free from any claim of abandonment for non-use, (B) maintain as in the past the quality of products  and services offered under such Trademark, (C) employ such Trademark with the appropriate notice of  registration, if applicable, (D) not adopt or use any mark that is confusingly similar or a colorable  imitation of such Trademark unless the Administrative Agent, for the ratable benefit of the holders of the  Obligations, shall obtain a perfected security interest in such mark pursuant to this Agreement, and (E)  not (and not permit any licensee or sublicensee thereof to) do any act or omit to do any act whereby any  such Trademark may become invalidated.

 

(d)          Not do any act, or omit to do any act, whereby any material Patent may become  abandoned or dedicated.

 

(e)          Notify the Administrative Agent immediately if it knows that any application or  registration relating to any material Patent or Trademark may become abandoned or dedicated, or of any  materially adverse determination or development (including, without limitation, the institution of, or any  such determination or development in, any proceeding in the United States Patent and Trademark Office  or any court or tribunal in any country) regarding such Loan Party’s ownership of any Patent or  Trademark or its right to register the same or to keep and maintain the same.

 

(g)        Promptly notify the Administrative Agent after it learns that any material Patent or Trademark included in the Collateral is infringed, misappropriated or diluted by a third party and  promptly sue for infringement, misappropriation or dilution, to seek injunctive relief where appropriate  and to recover any and all damages for such infringement, misappropriation or dilution, or to take such  other actions as it shall reasonably deem appropriate under the circumstances to protect such Patent or  Trademark.

 

 

 

ARTICLE VI

 

 

So long as any amount of the Term Loan or other Obligation hereunder shall remain outstanding, unpaid or unsatisfied, no Loan Party shall, nor shall it permit any Subsidiary to:

 

SECTION 6.01. Liens. Create, incur, assume or suffer to exist any Lien upon any of its property, assets or revenues, whether now owned or hereafter acquired, other than (a) Liens created under the Loan Documents or (b) Permitted Encumbrances.

 

SECTION 6.02. Indebtedness.Create, incur, assume or suffer to exist any Indebtedness, except (a) Indebtedness of the Loan Parties under the Loan Documents and (b) Indebtedness existing on the date hereofEffective Date of which the Lenders have been informed in writing.

 

SECTION 6.03. Restricted Payments. Make any Restricted Payment, or incur any obligation (contingent or otherwise) to do so.

 

SECTION 6.04. Fundamental Changes. (a) Merge, dissolve, liquidate, amalgamate or consolidate with or into any other Person or (b) dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets.

 

SECTION 6.05. Transfer of Assets. Without the prior written consent of the Lenders, transfer, sell, assign, license, lease, convey or otherwise dispose of any assets or property of any Loan Party or any Subsidiary to any Person other than (w) the sale, lease, license, transfer or other disposition of inventory in the ordinary course of business and consistent with past practice, (x) the sale, lease, license, transfer or other disposition in the ordinary course of business and consistent with past practice of surplus, obsolete or worn out property no longer used or useful in the conduct of business of any Loan Party or any Subsidiary, (y) licenses, sublicenses, leases or subleases granted to third parties in the ordinary course of business and consistent with past practice and not interfering with the business of the Loan Parties and their Subsidiaries and (z) dispositions consisting of the sale, transfer, assignment or other disposition of unpaid and overdue accounts receivable in connection with the collection, compromise or settlement thereof in the ordinary course of business and consistent with past practice and not as part of a financing transaction.

 

SECTION 6.06. Investments. Make or hold any Investments, other than Permitted Investments.

 

SECTION 6.07. Changes in Nature of Business. Engage in any material line of business substantially different from those lines of business conducted by the Loan Parties and their Subsidiaries on the date hereof or any business substantially related or incidental thereto.

SECTION 6.08. Transactions with Affiliates. Enter into any transaction of any kind with any Affiliate of any Loan Party or any Subsidiary, whether or not in the ordinary course of business, other than on fair and reasonable terms substantially as favorable to such Loan Party or such Subsidiary as would be obtainable by such Loan Party or such Subsidiary at the time in a comparable arm’s length transaction with a Person other than an Affiliate; provided, that, the foregoing restriction shall not apply to transactions between Venus Concept and any of its wholly-owned Subsidiaries or between any wholly-owned Subsidiaries, in each case entered into in the ordinary course of business and consistent with past practice.

 

SECTION 6.09. Burdensome Agreements. Enter into or permit to exist any contractual obligation (other than (x) this Agreement or any other Loan Document and (y) any agreement governing the Main Street Priority Loan) that (a) limits the ability (i) of any Subsidiary to make Restricted Payments to any Loan Party or to otherwise transfer property to or invest in any Loan Party, (ii) of any Subsidiary to guarantee the Indebtedness of a Loan Party or (iii) of any Loan Party or any Subsidiary to create, incur, assume or suffer to exist Liens on property of such Person; or (b) requires the grant of a Lien to secure an obligation of such Person if a Lien is granted to secure another obligation of such Person.

 

SECTION 6.10. Organizational Documents; etc.

 

(a)          Amend, modify or change its organizational documents in a manner materially adverse to the Administrative Agent or any Lender.

 

(b)          Change its fiscal year.

 

(g)          (i)  Change its name, jurisdiction of organization or form of organization.  as it  appears in official filings in the jurisdiction of its organization, (ii) change its chief executive office or  sole place of business, (ii) change the type of entity that it is, (iii) change its organization identification  number issued by its jurisdiction  of organization or its federal employer identification number, or (iv)  change its jurisdiction of  organization, in each case, unless it shall have provided the Administrative  Agent at least ten (10) days’ prior written notice thereof (or such shorter period as may be agreed to by  the Administrative Agent in its reasonable discretion) and taken any action reasonably requested by  the Administrative Agent or otherwise required in connection therewith to continue the perfection  following such change of any Liens in favor of the Administrative Agent in any Collateral.

 

(c)          Unless no less than three (3) Business Days’ advance notice thereof is provided to the Administrative Agent, consummate any Equity Issuance; provided, that, if such Loan Party becomes aware of a proposed Equity Issuance later than three (3) Business Days prior to the date thereof, then notice may be provided on the date such Loan Party becomes aware thereof.

 

SECTION 6.11 Use of Proceeds. Use the proceeds of any Loan, whether directly or indirectly, and whether immediately, incidentally or ultimately, to purchase or carry margin stock (within the meaning of Regulation U of the Board of Governors of the Federal Reserve System of the United States) or to extend credit to others for the purpose of purchasing or carrying margin stock or to refund indebtedness originally incurred for such purpose.

 

SECTION 6.12 Prepayment of Subordinated Indebtedness. Make (or give any notice with respect thereto) any voluntary or optional payment or prepayment or redemption or acquisition for value of (including without limitation, by way of depositing money or securities with the trustee with respect thereto before due for the purpose of paying when due), refund, refinance or exchange of any Indebtedness of any Loan Party or any Subsidiary that is subordinated to the Obligations; provided, that, such payments with respect to subordinated indebtedness may made if permitted by an intercreditor agreement signed by the Administrative Agent.

 

ARTICLE VII

 

 

SECTION 7.01. Events of Default. Each of the events referred to in this Section 7.01 shall constitute an “Event of Default”:

 

(a)          Non-Payment. Any Loan Party fails to pay, when and as required to be paid herein, any amount of principal or interest in respect of the Term Loan or any fees, expenses or other amounts required to be paid pursuant to this Agreement; or

 

(b)          Specific Covenants. Any Loan Party fails to perform or observe any term, covenant, or agreement contained in any of Section 5.02(a) or 5.05(a) or Article VI;

 

(c)          Other Defaults. Any Loan Party fails to perform or observe any other covenant or agreement (not specified in Section 7.01(a) or 7.01(b) above) contained in any Loan Document on its part to be performed or observed and such failure continues for ten (10) days after the earlier of (i) a Loan Party becoming aware of such circumstances and (ii) receipt by a Loan Party of written notice thereof from any Lender or the Administrative Agent; or

 

(d)          Representations and Warranties. Any representation, warranty, certification or statement of fact made or deemed made by any Loan Party herein, in any other Loan Document to which it is a party, or in any document required to be delivered in connection herewith or therewith shall be untrue in any material respect when made or deemed made; or

 

(e)          Cross-Default. (A) Any Loan Party or any Subsidiary fails to make any payment beyond the applicable grace period, if any, whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise, in respect of any Indebtedness (other than Indebtedness hereunder and, for the avoidance of doubt, including the Main Street Priority Loan), (B) any Loan Party or any Subsidiary fails to observe or perform any other agreement or condition relating to any such Indebtedness, or any other event occurs, the effect of which default or other event is to cause, or to permit the holder or holders of such Indebtedness (or a trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause, with the giving of notice if required, such Indebtedness to become due or to be repurchased, prepaid, defeased or redeemed (automatically or otherwise), or an offer to repurchase, prepay, defease or redeem such Indebtedness to be made, prior to its stated maturity or (C) Venus Concept fails to comply with Section 4.14 (Shareholder Approval) of that certain Exchange Agreement, dated as of June 30, 2025, by and among Venus Concept, Venus USA and the Lenders, as amended, restated or otherwise modified from time to time; or

(f)          Insolvency Proceedings, Etc. Any Loan Party or any Subsidiary institutes or consents to the institution of any proceeding under any Debtor Relief Law, or makes an assignment for the benefit of creditors; or such Loan Party or Subsidiary applies for or consents to the appointment of any receiver, trustee, custodian, conservator, liquidator, rehabilitator, administrator, administrative receiver or similar officer for it or for all or any material part of its property; or any receiver, trustee, custodian, conservator, liquidator, rehabilitator, administrator, administrative receiver or similar officer is appointed without the application or consent of such Loan Party or Subsidiary and the appointment continues undischarged or unstayed for sixty (60) calendar days; or any proceeding under any Debtor Relief Law relating to any Loan Party or to all or any material part of its property is instituted without the consent of such Person and continues undismissed or unstayed for sixty (60) calendar days, or an order for relief is entered in any such proceeding; or

 

(g)          Judgments. There is entered against any Loan Party or any Subsidiary (i) one or more final, non-appealable judgments or orders for the payment of money from a court of competent jurisdiction in an aggregate amount exceeding $250,000 (to the extent not covered by independent third-party insurance as to which the insurer has been notified of such judgments or orders and has not denied or failed to acknowledge coverage thereof) or (ii) any one or more non-monetary final judgments that have, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect and, in either case, (A) enforcement proceedings are commenced by any creditor upon such judgment or order, or (B) there is a period of 30 consecutive days during which a stay of enforcement of such judgment, by reason of a pending appeal or otherwise, is not in effect; or

 

(h)         Change of Control. A Change of Control shall occur; or

 

(i)          Invalidity of Loan Documents. Any material provision of any Loan Document, at any time after its execution and delivery and for any reason other than as expressly permitted hereunder or thereunder or as a result of acts or omissions by the Administrative Agent or any Lender or the satisfaction in full of all the Obligations, ceases to be in full force and effect; or any Loan Party contests in writing the validity or enforceability of any provision of any Loan Document; or any Loan Party denies in writing that it has any or further liability or obligation under any Loan Document (other than as a result of repayment in full of the Obligations), or purports in writing to revoke or rescind any Loan Document; or

 

(j)          Collateral. Any Lien purported to be created hereunder shall cease to be, or shall be asserted by any Loan Party not to be, a valid and perfected Lien on any Collateral, with the priority required hereunder, except as a result of the sale or other disposition of the applicable Collateral in a transaction permitted under the Loan Documents.

 

(h)         Delisting. The shares of common stock of Venus Concept are delisted from the  Nasdaq Capital Market because of failure to comply with continued listing standards thereof or due to  a voluntary delisting which results in such shares not being listed on any other nationally recognized  stock exchange in the United States.

SECTION 7.02. Remedies upon Event of Default. If any Event of Default occurs and is continuing, the Required Lenders may declare the unpaid principal amount of the Term Loan, all interest accrued and unpaid thereon, and all other amounts owing or payable hereunder or under any other Loan Document to be immediately due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by each Loan Party; and, at the request of the Required Lenders, the Administrative Agent shall (subject to the limitations on the Administrative Agent’s duties set forth in Articles VIII and IX) exercise on behalf of itself and the Lenders all rights and remedies available to it and the Lenders under the Loan Documents or applicable Law; provided that upon the occurrence of an actual or deemed entry of an order for relief with respect to a Loan Party under the Debtor Relief Laws of the United States, the unpaid principal amount of the Term Loan and all interest and other amounts as aforesaid shall automatically become due and payable without further act of the Administrative Agent or any Lender.

 

SECTION 7.03. Application of Funds. After the exercise of remedies provided for in Section 7.02 (or after the Term Loan has automatically become immediately due and payable), any amounts received on account of the Obligations shall be applied in the following order:

 

(a)          First, to payment of that portion of the Obligations constituting reasonable fees, indemnities, expenses and other amounts (other than principal and interest, but including reasonable, documented Attorney Costs payable under Section 10.04) payable to the Administrative Agent in its capacity as such;

 

(b)          Second, to payment of that portion of the Obligations constituting fees, indemnities and other amounts (other than principal and interest) payable to the Lenders (including Attorney Costs payable under Section 10.04), ratably among them in proportion to the amounts described in this clause Second payable to them;

 

(c)          Third, to payment of that portion of the Obligations constituting accrued and unpaid interest on the Term Loan, ratably among the Lenders in proportion to the respective amounts described in this clause Third payable to them;

 

(d)          Fourth, to payment of that portion of the Obligations constituting unpaid principal of the Term Loan ratably among the Lenders in proportion to the respective amounts described in this clause Fourth held by them;

 

(e)          Fifth, to the payment of all other Obligations of the Loan Parties that are due and payable to the Administrative Agent and the Lenders on such date, ratably based upon the respective aggregate amounts of all such Obligations owing to the Administrative Agent and the Lenders on such date; and

 

(f)          Last, the balance, if any, after all of the Obligations have been indefeasibly paid in full, to the Borrower or as otherwise required by Law.

ARTICLE VIII

 

 

 

 

 

SECTION 8.02. Perfection of Collateral. Each Loan Party hereby authorizes the Administrative Agent on such Loan Party’s behalf to, and upon the Administrative Agent’s reasonable request from time to time, such Loan Party will, execute (if signature is required) and deliver, and file and record in the proper filing and recording places, all such instruments, including Uniform Commercial Code and PPSA financing statements covering all assets of such Loan Party, and take all such other action, as the Administrative Agent reasonably deems necessary or appropriate for perfecting or protecting or otherwise confirming the security interest in the Collateral granted hereunder.

 

SECTION 8.04. Remedies.

 

(b)        Remedies relating to Accounts. During the continuation of an Event of Default, whether or not the Administrative Agent has exercised any or all of its rights and remedies hereunder,  (i) each Loan Party will promptly upon request of the Administrative Agent instruct all account debtors  to remit all payments in respect of accounts to a mailing location selected by the Administrative Agent  and (ii) the Administrative Agent shall have the right to enforce any Loan Party’s rights against its  customers and account debtors, and the Administrative Agent or its designee may notify any Loan  Party’s customers and account debtors that the accounts of such Loan Party have been assigned to the  Administrative Agent or of the Administrative Agent’s security interest therein, and may (either in its  own name or in the name of a Loan Party or both) demand, collect (including without limitation by  way of a lockbox arrangement), receive, take receipt for, sell, sue for, compound, settle, compromise  and give acquittance for any and all amounts due or to become due on any account, and, in the  Administrative Agent’s discretion, file any claim or take any other action or proceeding to protect and  realize upon the security interest of the holders of the Obligations in the accounts. Each Loan Party acknowledges and agrees that the Proceeds of its accounts remitted to or on behalf of the  Administrative Agent in accordance with the provisions hereof shall be solely for the Administrative  Agent’s own convenience and that such Loan Party shall not have any right, title or interest in such  accounts or in any such other amounts except as expressly provided herein. Neither the Administrative  Agent nor the holders of the Obligations shall have any liability or responsibility to any Loan Party for  acceptance of a check, draft or other order for payment of money bearing the legend “payment in full”  or words of similar import or any other restrictive legend or endorsement or be responsible for  determining the correctness of any remittance. Furthermore, during the continuation of an Event of  Default, (i) the Administrative Agent shall have the right, but not the obligation, to make test  verifications of the accounts in any manner and through any medium that it reasonably considers  advisable, and the Loan Parties shall furnish all such assistance and information as the Administrative  Agent may require in connection with such test verifications, (ii) upon the Administrative Agent’s  request and at the expense of the Loan Parties, the Loan Parties shall cause independent public  accountants or others satisfactory to the Administrative Agent to furnish to the Administrative Agent  reports showing reconciliations, aging and test verifications of, and trial balances for, the accounts and  (iii) the Administrative Agent in its own name or in the name of others may communicate with account  debtors on the accounts to verify with them to the Administrative Agent’s satisfaction the existence,  amount and terms of any accounts.

 

(c)          Access. In addition to the rights and remedies hereunder, upon the occurrence of  an Event of Default and during the continuance thereof, the Administrative Agent shall have the right  to  enter and remain upon the various premises of the Loan Parties without cost or charge to the  Administrative Agent, and use the same, together with materials, supplies, books and records of the  Loan Parties for the purpose of collecting and liquidating the Collateral, or for preparing for sale and  conducting the sale of the Collateral, whether by foreclosure, auction or otherwise. In addition, the  Administrative Agent may remove Collateral, or any part thereof, from such premises and/or any  records with respect thereto, in order to effectively collect or liquidate such Collateral.

 

(d)          Nonexclusive Nature of Remedies. Failure by the Administrative Agent or the  holders of the Obligations to exercise any right, remedy or option under this Agreement, any other  Loan Document, any other document relating to the Obligations, or as provided by Law, or any delay  by the Administrative Agent or the holders of the Obligations in exercising the same, shall not operate  as a waiver of any such right, remedy or option. No waiver hereunder shall be effective unless it is in  writing, signed by the party against whom such waiver is sought to be enforced and then only to the  extent specifically stated, which in the case of the Administrative Agent or the holders of the  Obligations shall only be granted as provided herein. To the extent permitted by ▇▇▇, neither the  Administrative Agent, the holders of the Obligations, nor any party acting as attorney for the  Administrative Agent or the holders of the Obligations, shall be liable hereunder for any acts or  omissions or for any error of judgment or mistake of fact or law other than their gross negligence or  willful misconduct hereunder. The rights and remedies of the Administrative Agent and the holders of  the Obligations under this Agreement shall be cumulative and not exclusive of any other right or  remedy which the Administrative Agent or the holders of the Obligations may have.

 

( )           (a) AssemblyRetention of Collateral; Receiver. Each Loan Party shall, upon the  Administrative Agent’s request, assemble the Collateral and otherwise make it available to the. In addition to the rights and remedies hereunder, the Administrative Agent. The Administrative Agent  may have a receiver appointed for all or any portion of a Loan Party’s assets or business which  constitutes may, in compliance with Sections 9-620 and 9-621 of the UCC or otherwise complying with the requirements of applicable Law of the relevant jurisdiction, accept or retain the Collateral in order to manage, protect, preserve, sell and otherwise dispose  of all or any portion of the  satisfaction of the  Obligations. Unless and until the Administrative Agent shall have provided such notices, however, the  Administrative Agent shall not be  deemed to have retained any  Collateral  in satisfaction of any  Obligations for any reason.

(b)         Waiver. To the extent it may lawfully do so, each Loan Party waives and  relinquishes the benefit and advantage of, and covenants not to assert against the Administrative Agent  or any  Lender, any valuation, stay, appraisement, extension, redemption or similar laws now or  hereafter existing which, but for this provision, might  be applicable to the sale of any Collateral made  under the judgment, order or decree of any court or privately under the power of sale conferred by this  Agreement to the Administrative Agent.

 

(c)          Foreclosure Sale. All or any part of the Collateral may be sold for cash or other value in any number of lots at public or private sale, and unless the Collateral to be sold threatens to  decline speedily in value or is of a type customarily sold on a recognized market, the Administrative  Agent shall give the Loan Parties not less than 10 days’ prior written notice of the time and place of  any public sale, or the time after which a private sale may be made, which notice each of the Loan Parties and the Administrative Agent agrees to be reasonable. At any sale or sales of Collateral, the  Administrative Agent, the Lenders or any of their assigns may bid for and purchase all or any part of  the property and rights so sold and may use all or any portion of the Obligations owed to the  Administrative Agent or such Lender as payment for the property or rights so purchased.

 

 

(f)          Deficiency. In the event that the proceeds of any sale, collection or realization are insufficient to pay all amounts to which the Administrative Agent or the holders of the Obligations  are legally entitled, the Loan Parties shall be jointly and severally liable for the deficiency, together  with interest thereon at the Default Rate, together with the costs of collection and the fees, charges and  disbursements of counsel. Any surplus remaining after the full payment and satisfaction of the  Obligations shall be returned to the Loan Parties or to whomsoever a court of competent jurisdiction  shall determine to be entitled thereto.

 

 

(a)          Power of Attorney. In addition to other powers of attorney contained herein,  each Loan Party hereby designates and appoints the Administrative Agent, on behalf of the holders of  the Obligations, and each of its designees or agents, as attorney-in-fact of such Loan Party, irrevocably  and with power of substitution, with authority to take any or all of the following actions upon the  occurrence and during the continuance of an Event of Default:

 

(i)           to demand, collect, settle, compromise, adjust, give discharges and releases, all  as the Administrative Agent may reasonably determine;

 

(ii)          to commence and prosecute any actions at any court for the purposes of  collecting any Collateral and enforcing any other right in respect there^of

 

(iii)        to defend, settle or compromise any action brought and, in connection therewith,  give such discharge or release as the Administrative Agent may deem reasonably appropriate;

 

(iv)        receive, open and dispose of mail addressed to a Loan Party and endorse checks,  notes, drafts, acceptances, money orders, bills of lading, warehouse receipts or other instruments or  documents evidencing payment, shipment or storage of the goods giving rise to the Collateral of such  Loan Party on behalf of and in the name of such Loan Party, or securing, or relating to such Collateral;

 

(v)          sell, assign, transfer, make any agreement in respect of, or otherwise deal with or  exercise rights in respect of, any Collateral or the goods or services which have given rise thereto, as  fully and completely as though the Administrative Agent were the absolute owner thereof for all  purposes;

 

(vi)        adjust and settle claims under any insurance policy relating thereto;

 

(viii)      institute any foreclosure proceedings that the Administrative Agent may deem appropriate;

 

(ix)         to sign and endorse any drafts, assignments, proxies, stock powers, verifications,  notices and other documents relating to the Collateral;

 

(x)          to exchange any of the Pledged Equity or other property upon any merger,  consolidation, reorganization, recapitalization or other readjustment of the issuer thereof and, in  connection therewith, deposit any of the Pledged Equity with any committee, depository, transfer agent,  registrar or other designated agency upon such terms as the Administrative Agent may reasonably deem  appropriate;

 

(xi)          to vote for a shareholder resolution, or to sign an instrument in writing,  sanctioning the transfer of any or all of the Pledged Equity into the name of the Administrative Agent or  one or more of the holders of the Obligations or into the name of any transferee to whom the Pledged  Equity or any part thereof may be sold pursuant to this Agreement;

 

(xii)       to pay or discharge taxes, liens, security interests or other encumbrances levied or placed on or threatened against the Collateral;

 

(xiii)      to direct any parties liable for any payment in connection with any of the  Collateral to make payment of any and all monies due and to become due thereunder directly to the  Administrative Agent or as the Administrative Agent shall direct;

 

(xiv)       to receive payment of and receipt for any and all monies, claims, and other  amounts due and to become due at any time in respect of or arising out of any Collateral; and

 

(xv)        do and perform all such other acts and things as the Administrative Agent may  reasonably deem to be necessary, proper or convenient in connection with the Collateral. This power of attorney is a power coupled with an interest and shall be irrevocable until such time as the  Obligations arising under the Loan Documents have been paid in full. The Administrative Agent shall be  under no duty to exercise or withhold the exercise of any of the rights, powers, privileges and options  expressly or implicitly granted to the Administrative Agent in this Agreement, and shall not be liable for  any failure to do so or any delay in doing so. The Administrative Agent shall not be liable for any act or  omission or for any error of judgment or any mistake of fact or law in its individual capacity or its  capacity as attorney-in-fact except acts or omissions resulting from its gross negligence or willful  misconduct. This power of attorney is conferred on the Administrative Agent solely to protect, preserve  and realize upon its security interest in the Collateral.

 

(c)          Assignment by the Administrative Agent. The Administrative Agent may from  time to time assign the Obligations to a successor Administrative Agent appointed in accordance  with this Agreement, and such successor shall be entitled to all of the rights and remedies of the  Administrative Agent under this Agreement in relation thereto.

 

SECTION 8.04. Custody of Collateral. Except as provided by applicable law that cannot be waived, the Administrative Agent will have no duty as to the custody and protection of the Collateral, the collection of any part thereof or of any income thereon or the preservation or exercise of any rights pertaining thereto, including rights against prior parties, except for the use of reasonable care in the  custody and physical preservation of any Collateral in its possession.

 

(d)          The Administrative Agent’s Duty of Care. Other than the exercise of reasonable  care to assure the safe custody of the Collateral while being held by the Administrative Agent  hereunder, the Administrative Agent shall have no duty or liability to preserve rights pertaining  thereto, it being understood and agreed that the Loan Parties shall be responsible for preservation  of all rights in the Collateral, and the Administrative Agent shall be relieved of all responsibility  for the Collateral upon surrendering it or tendering the surrender of it to the Loan Parties. The  Administrative Agent shall be deemed to have exercised reasonable care in the custody and  preservation of the Collateral in its possession if the Collateral is accorded treatment  substantially equal to that which the Administrative Agent accords its own property, which shall  be no less than the treatment employed by a reasonable and prudent agent in the industry, it being  understood that the Administrative Agent shall not have responsibility for taking any necessary  steps to preserve rights against any parties with respect to any of the Collateral. In the event of a  public or private sale of Collateral pursuant to the terms of this Agreement, the Administrative  Agent shall have no responsibility for (i) ascertaining or taking action with respect to calls,  conversions, exchanges, maturities, tenders or other matters relating to any Collateral, whether or  not the Administrative Agent has or is deemed to have knowledge of such matters, or (ii) taking  any steps to clean, repair or otherwise prepare the Collateral for sale.

 

(e)          Liability with Respect to Accounts.Anything herein to the contrary notwithstanding, each of the Loan Parties shall remain liable under each of the accounts to  observe and perform all the conditions and obligations to be observed and performed by it  thereunder, all in accordance with the terms of any agreement giving rise to each such account.  Neither the Administrative Agent nor any holder of the Obligations shall have any obligation or  liability under any account (or any agreement giving rise thereto) by reason of or arising out of  this Agreement or the receipt by the Administrative Agent or any  holder of Obligations of any  payment relating to such account pursuant hereto, nor shall the Administrative Agent or any holder of Obligations be obligated in any manner to perform any of the obligations of a Loan  Party under or pursuant to any account (or any agreement giving rise thereto), to make any  payment, to make any inquiry as to the nature or the sufficiency of any payment received by it or  as to the sufficiency of any performance by any party under any account (or any agreement  giving rise thereto), to present or file any claim, to take any action to enforce any performance or  to collect the payment of any amounts which may have been assigned to it or to which it may be  entitled at any time or times.

(f)          Voting and Payment Rights in Respect of the Pledged Equity.

 

(i)          So long as no Event of Default shall exist, each Loan Party may  (A) exercise any and all voting and other consensual rights pertaining to the Pledged  Equity of such Loan Party or any part thereof for any purpose not inconsistent with the  terms of this Agreement and (B) receive and retain any and all dividends (other than  stock dividends and other dividends constituting Collateral which are addressed  hereinabove), principal or interest paid in respect of the Pledged Equity to the extent they  are allowed under this Agreement; and

 

(ii)       During the continuance of an Event of Default, (A) all rights of a Loan  Party to exercise the voting and other consensual rights which it would otherwise be  entitled to exercise pursuant to clause (i)(A) above shall cease and all such rights shall  thereupon become vested in the Administrative Agent which shall then have the sole  right to exercise such voting and other consensual rights, (B) all rights of a Loan Party to  receive the dividends, principal and interest payments which it would otherwise be  authorized to receive and retain pursuant to clause (i)(B) above shall cease and all such  rights shall thereupon be vested in the Administrative Agent which shall then have the  sole right to receive and hold as Collateral such dividends, principal and interest  payments, and (C) all dividends, principal and interest payments which are received by a  Loan Party contrary to the provisions of clause (ii)(B) above shall be received in trust for  the benefit of the Administrative Agent, shall be segregated from other property or funds  of such Loan Party, and shall be forthwith paid over to the Administrative Agent as  Collateral in the exact form received, to be held by the Administrative Agent as  Collateral and as further collateral security for the Obligations.

 

 

(a)          Guarantee.Each of the GuarantorsGuarantor hereby absolutely and unconditionally, jointly and severally, absolutely and unconditionally  guarantees, as primary obligor and not merely as surety, that the Obligations will be performed and paid in full in cash when due and  payable, whether at the stated or accelerated maturity thereof or otherwise, this guarantee being a  guarantee of payment and not of collectability and being absolute and in no way conditional or  contingent. In the event any part of the Obligations shall not have been so paid in full when due and  payable, each of the Guarantors will, immediately upon notice by the Administrative Agent, pay or  cause to be paid to the Administrative Agentas a guaranty of payment and performance and not merely  as a guaranty of collection, prompt payment when due, whether at stated maturity, by required  prepayment, upon acceleration, demand or otherwise, and at all times thereafter, of any and all  Obligations (the “Guaranty”; and for each Guarantor, subject to the proviso in this sentence, its  “Guaranteed Obligations”); provided, that, (a) the liability of each Guarantor individually with respect  to this Guaranty shall be limited to an aggregate amount equal to the largest amount that would not  render its obligations hereunder subject to avoidance under Section 548 of the Bankruptcy Code of the  United States or any comparable provisions of any applicable state law or other Applicable Law.  Without limiting the generality of the foregoing, the Guaranteed Obligations shall include any such  indebtedness, obligations, and liabilities, or portion thereof, which may be or hereafter become  unenforceable or compromised or shall be an allowed or disallowed claim under any proceeding or  case commenced by or against any debtor under any Debtor Relief Laws . The Administrative Agent’s  books and records showing the amount of suchthe Obligations which are then due and payable and  unpaid. The obligations of the Guarantors hereundershall be admissible in evidence in any action or  proceeding, and shall be binding upon each Guarantor, and conclusive for the purpose of establishing  the amount of the Obligations. This Guaranty shall not be affected by the invalidity, unenforceability or  irrecoverability of anygenuineness, validity, regularity or enforceability of the Obligations as against  the Borrower, any other guarantor thereof or any other Person. For purposes hereof, the Obligations  shall be due and payable when and as the same shall be due and payable under the terms of this  Agreement  or any other Loan Document notwithstanding the fact that the collection or enforcement  thereof may be stayed or enjoined under applicable law.or any instrument or agreement evidencing any  Obligations, or by the existence, validity, enforceability, perfection, non-perfection or extent of any  collateral therefor, or by any fact or circumstance relating to the Obligations which might otherwise  constitute a defense to the obligations of the Guarantors, or any of them, under this Guaranty, and each  Guarantor hereby irrevocably waives any defenses it may now have or hereafter acquire in any way  relating to any or all of the foregoing.

 

(d)          Actions by Secured Parties. Any Secured Party may from time to time, without  notice or demand and without affecting the validity or enforceability of the guarantee of the  Obligations by the Guarantors pursuant to Section 8.07(a) above or giving rise to any limitation, impairment or discharge of any Guarantor’s liability hereunder, (a) renew, extend, accelerate or  otherwise change the time, place, manner or terms of payment of the Obligations, (b) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or  substitutions for, the Obligations or any agreement relating thereto and/or subordinate the payment of  the same to the payment of any other obligations, (c) request and accept other guaranties of the  Obligations and take and hold security for the payment of the Obligations, (d) release, exchange, compromise, subordinate or modify, with or without consideration, any security for payment of the  Obligations, any other guaranties of the Obligations, or any other obligation of any Person with respect  to the Obligations, (e) enforce and apply any security now or hereafter held by or for the benefit of any Secured Party in respect of the Obligations and direct the order or manner of sale thereof, or exercise  any other right or remedy that the Secured Parties, or any of them, may have against any such security, as the Administrative Agent in its discretion may determine consistent with this Agreement and any  other Loan Document, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and (f)  exercise any other rights available to the Secured Parties, or any of them, under the Loan Documents.

 

 

 

(f)          Certain Waivers. Each Guarantor waives (a) any defense arising by reason of  any disability or other defense of the Borrower or any other guarantor, or the cessation from any cause  whatsoever (including any act or omission of any Secured Party) of the liability of the Borrower or any  other Loan Party; (b) any defense based on any claim that such Guarantor’s obligations exceed or are  more burdensome than those of the Borrower or any other Loan Party; (c) the benefit of any statute of  limitations affecting any Guarantor’s liability hereunder; (d) any right to proceed against the Borrower  or any other Loan Party, proceed against or exhaust any security for the Obligations, or pursue any  other remedy in the power of any Secured Party whatsoever; (e) any benefit of and any right to  participate in any security now or hereafter held by any Secured Party; and (f) to the fullest extent  permitted by law, any and all other defenses or benefits that may be derived from or afforded by  Applicable Law limiting the liability of or exonerating guarantors or sureties. Each Guarantor  expressly waives all setoffs and counterclaims and all presentments, demands for payment or  performance, notices of nonpayment or nonperformance, protests, notices of protest, notices of  dishonor and all other notices or demands of any kind or nature whatsoever with respect to the  Obligations, and all notices of acceptance of this Guaranty or of the existence, creation or incurrence of  new or additional Obligations.

 

(g)         Obligations Independent. The obligations of each Guarantor hereunder are those  of primary obligor, and not merely as surety, and are independent of the Obligations and the  obligations of any other guarantor, and a separate action may be brought against each Guarantor to  enforce this Guaranty whether or not the Borrower or any other person or entity is joined as a party.

 

(h)         Subrogation. No Guarantor shall exercise any right of subrogation, contribution,  indemnity, reimbursement or similar rights with respect to any payments it makes under this Guaranty  until all of the Obligations and any amounts payable under this Guaranty have been indefeasibly paid  and performed in full. If any amounts are paid to a Guarantor in violation of the foregoing limitation, then such amounts shall be held in trust for the benefit of the Secured Parties and shall forthwith be paid to the Secured Parties to reduce the amount of the Obligations, whether matured or unmatured.

(i)         Termination; Reinstatement. This Guaranty is a continuing and irrevocable  guaranty of all Obligations now or hereafter existing and shall remain in full force and effect until all  Obligations have been paid in full (other than contingent indemnification obligations). Notwithstanding  the foregoing, this Guaranty shall continue in full force and effect or be revived, as the case may be, if  any payment by or on behalf of the Borrower or a Guarantor is made, or any of the Secured Parties  exercises its right of setoff, in respect of the Obligations and such payment or the proceeds of such  setoff or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside  or required (including pursuant to any settlement entered into by any of the Secured Parties in their  discretion) to be repaid to a trustee, receiver or any other party, in connection with any proceeding  under any Debtor Relief Laws or otherwise, all as if such payment had not been made or such setoff  had not occurred and whether or not the Secured Parties are in possession of or have released this  Guaranty and regardless of any prior revocation, rescission, termination or reduction. The obligations  of each Guarantor under this Section 8.06 shall survive termination of this Guaranty.

 

(j)          Stay of Acceleration. If acceleration of the time for payment of any of the  Obligations is stayed, in connection with any case commenced by or against a Guarantor or the  Borrower under any Debtor Relief Laws, or otherwise, all such amounts shall nonetheless be payable  by each Guarantor, jointly and severally, immediately upon demand by the Secured Parties.

 

(k)          Condition of Borrower. Each Guarantor acknowledges and agrees that it has the  sole responsibility for, and has adequate means of, obtaining from the Borrower and any other  guarantor such information concerning the financial condition, business and operations of the Borrower  and any such other guarantor as such Guarantor requires, and that none of the Secured Parties has any  duty, and such Guarantor is not relying on the Secured Parties at any time, to disclose to it any  information relating to the business, operations or financial condition of the Borrower or any other  guarantor (each Guarantor waiving any duty on the part of the Secured Parties to disclose such  information and any defense relating to the failure to provide the same). ( ) Appointment of Borrower. Each of the Loan Parties hereby appoints the Borrower to act as its agent for all purposes of this Agreement, the other Loan Documents and all other  documents and electronic platforms entered into in connection herewith and agrees that (a) the  Borrower may execute such documents and provide such authorizations on behalf of such Loan Parties  as the Borrower deems appropriate in its sole discretion and each Loan Party shall be obligated by all  of the terms of any such document and/or authorization executed on its behalf, (b) any notice or  communication delivered by the Administrative Agent or a Lender to the Borrower shall be deemed  delivered to each Loan Party and (c) the Administrative Agent or the Lenders may accept, and be  permitted to rely on, any document, authorization, instrument or agreement executed by the Borrower  on behalf of each of the Loan Parties.

 

ARTICLE IX

 

 

SECTION 9.01. Appointment and Authorization of the Administrative Agent. Each of the Lenders hereby irrevocably appoints, designates and authorizes the Administrative Agent to act as the administrative and collateral agent of (and to hold any security interest created by any Loan Document for and on behalf of or on trust for) such Lender for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by the Loan Parties to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto, and hereby agrees that all actions in connection with the Collateral and the enforcement or exercise of any remedies in respect of the Obligations shall be taken solely by the Administrative Agent pursuant to this Agreement. Without limiting the generality of the foregoing, the Lenders hereby expressly authorize the Administrative Agent to execute any and all documents (including releases) with respect to the Collateral and the rights of the Secured Parties with respect thereto, as contemplated by and in accordance with the provisions of this Agreement and the Loan Documents and acknowledge and agree that any such action by the Administrative Agent shall bind the Lenders. Notwithstanding any provision to the contrary contained elsewhere herein or in any other Loan Document, the Administrative Agent shall have no duties or responsibilities, except those expressly set forth herein, nor shall the Administrative Agent have or be deemed to have any fiduciary relationship with any Lender or participant, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Loan Document or otherwise exist against the Administrative Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” herein and in the other Loan Documents 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 merely as a matter of market custom and is intended to create or reflect only an administrative relationship between independent contracting parties.

 

SECTION 9.02. Actions by the Administrative Agent. The Administrative Agent shall not take any action under this Agreement, including in connection with the Collateral and the enforcement or exercise of any remedies in respect of the Obligations, and shall not be obligated to take any such action, except to the extent expressly specified in a written notice received by the Administrative Agent signed by the Required Lenders; provided, however, that the Administrative Agent may execute releases and other collateral termination documents with respect to assets disposed of by the Loan Parties as permitted by this Agreement. All actions taken by the Administrative Agent in accordance with this Section 9.02, including waiving in writing compliance with any covenant in this Agreement or any other Loan Document, shall be binding upon all Lenders; provided, however, that the foregoing shall not be deemed a waiver of any Lenders rights against any other party hereto with respect to the taking of such action. No provision of this Agreement shall require the Administrative Agent to expend or risk its own funds or otherwise incur any financial liability or exposure in the performance of any of its duties hereunder or in any other Loan Document or in the exercise of any of its rights or powers hereunder or under any of other Loan Documents unless it is indemnified or, if requested, advanced funds, to its satisfaction and the Administrative Agent shall have no liability to any person for any loss occasioned by any delay in taking or failure to take any such action while it is awaiting an indemnity or advance of funds satisfactory to it.

SECTION 9.03. Liability of Administrative Agent.

 

(a)         No Related Person shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Agreement or any other Loan Document or the transactions contemplated hereby (except for its own gross negligence or willful misconduct, as determined by the final judgment of a court of competent jurisdiction, in connection with its duties expressly set forth herein), or (ii) be responsible in any manner to any Lender for any recital, statement, representation or warranty made by any Loan Party or any officer thereof, contained herein or in any other Loan Document, or in any certificate, report, statement or other document referred to or provided for in, or received by the Administrative Agent under or in connection with, this Agreement or any other Loan Document, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Loan Document, or the perfection or priority of any Lien or security interest created or purported to be created under the Loan Documents, or for any failure of any Loan Party or any other party (other than the Administrative Agent) to any Loan Document to perform its obligations hereunder or thereunder. No Related Person shall be under any obligation to any Lender or participant to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Agreement or any other Loan Document, or to inspect the properties, books or records of any Loan Party or any Affiliate thereof.

 

(b)         The Administrative Agent shall not be responsible for filing any financing or

continuation statements or recording any documents or instruments in any public office at any time or times or otherwise perfecting or maintaining the perfection of any security interest in the Collateral.

 

SECTION 9.04. Reliance by the Administrative Agent. The Administrative Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, communication, signature, resolution, representation, notice, consent, certificate, affidavit, letter, telegram, facsimile, telex or telephone message, electronic mail message, statement or other document or conversation believed by it to be genuine and correct and to have been signed, sent or made by the proper Person or Persons, and upon advice and statements of legal counsel (including counsel to the Loan Parties), independent accountants and other experts selected by the Administrative Agent. The Administrative Agent shall be fully justified in failing or refusing to take any action under any Loan Document unless it shall first receive such advice or concurrence of the Required Lenders as it deems appropriate and, if it so requests, it shall first be indemnified to its satisfaction by the Lenders against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Administrative Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Agreement or any other Loan Document in accordance with a request or consent of the Required Lenders (or such greater number of Lenders as may be expressly required hereby in any instance) and such request and any action taken or failure to act pursuant thereto shall be binding upon all the Lenders; provided that the Administrative Agent shall not be required to take any action that, in its opinion or in the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable Law.

 

SECTION 9.05. Notice of Default. The Administrative Agent shall not be deemed to have knowledge or notice of the occurrence of any Default, except with respect to defaults in the payment of principal, interest and fees required to be paid to the Administrative Agent for the account of the Lenders, unless the Administrative Agent shall have received written notice from a Lender or a Loan Party referring to this Agreement, describing such Default and stating that such notice is a “notice of default.” The Administrative Agent shall take such action with respect to any Event of Default as may be directed by the Required Lenders in accordance with Article VII; provided that unless and until the Administrative Agent has received any such direction, the Administrative Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such Event of Default as it shall deem advisable or in the best interest of the Lenders.

SECTION 9.06. Indemnification of the Administrative Agent. To the extent not reimbursed by or on behalf of the Loan Parties and without limiting the obligation of the Loan Parties to do so, the Lenders shall indemnify and hold harmless the Administrative Agent and each other Related Person (solely to the extent any such Related Person was performing services on behalf of the Administrative Agent) from and against any and all Indemnified Liabilities incurred by it. The indemnification obligations of the Lenders under this Section shall be several and based on the amount of the Term Loan held by each such Lender. In the case of any investigation, litigation or proceeding giving rise to any Indemnified Liabilities, this Section 9.06 applies whether any such investigation, litigation or proceeding is brought by any Lender or any other Person. Without limitation of the foregoing, each Lender severally agrees to reimburse the Administrative Agent upon demand for its ratable share (based on the amount of the Term Loan held by each such Lender) of any costs or out-of-pocket expenses (including Attorney Costs) incurred by the Administrative Agent in connection with the preparation, execution, delivery, administration, modification, amendment or enforcement (whether through negotiations, legal proceedings or otherwise) of, or legal advice in respect of rights or responsibilities under, this Agreement, any other Loan Document, or any document contemplated by or referred to herein, to the extent that the Administrative Agent is not reimbursed for such expenses by or on behalf of the Loan Parties, provided that such reimbursement by the Lenders shall not affect the Loan Parties’ continuing reimbursement obligations with respect thereto. Notwithstanding the foregoing provisions of this Section, the indemnity provided by the Lenders in this Section shall not be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction to have resulted from the gross negligence or willful misconduct of the Administrative Agent or a Related Person. The undertaking in this Section 9.06 shall survive termination of the Term Loan, the payment of all other Obligations and the resignation of the Administrative Agent.

 

SECTION 9.07. Collateral Matters.The Lenders irrevocably authorize the Administrative Agent, and the Administrative Agent agrees, upon ▇▇▇▇▇▇▇▇’s written request to release any Lien on any property granted to or held by the Administrative Agent under any Loan Document (i) upon termination of the Term Loan and payment in full of all Obligations, (ii) at the time the property subject to such Lien is transferred as part of or in connection with any transfer permitted hereunder or under any other Loan Document and the Loan Party provides a certificate to the Administrative Agent to such effect, or (iii) subject to Section 10.01, if the release of such Lien is approved, authorized or ratified in writing by the Required Lenders. Upon request by the Administrative Agent at any time, the Required ▇▇▇▇▇▇▇ will confirm in writing the Administrative Agent’s authority to release in particular types or items of property. In each case as specified in this Section 9.07, the Administrative Agent will promptly (and each Lender irrevocably authorizes the Administrative Agent to), at the Loan Party’s expense, execute and deliver to the Borrower such documents as the Borrower may reasonably request to evidence the release of such item of Collateral from the assignment and security interest granted under the Loan Documents.

 

SECTION 9.08. Resignation.The Administrative Agent may resign as Administrative Agent at any time upon notice to the Borrower and ▇▇▇▇▇▇▇. Such resignation shall be effective as of the date specified in such notice. Effective upon such resignation, (i) the Required ▇▇▇▇▇▇▇ may appoint a successor Administrative Agent and (ii) the resigning Administrative Agent shall, subject to the other provisions hereof, take such actions as may reasonably be requested by the Required Lenders (excluding, for this determination of Required Lenders, any principal amount of the Term Loan held by any affiliate of the Administrative Agent) to transfer any Collateral or security registrations or documents in respect thereof to the successor Administrative Agent.

ARTICLE X

 

 

SECTION 10.01. Amendments, Etc. In general, except as otherwise set forth in this Section 10.01 or elsewhere in this Agreement, no amendment or waiver of any provision of this Agreement or any other Loan Document, and no consent to any departure by a Loan Party shall be effective unless in writing signed by each of the Lenders and the Borrower, as the case may be, and each such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given

 

SECTION 10.02. Notices and Other Communications; Facsimile Copies.

 

(a)          General. Unless otherwise expressly provided herein, all notices and other communications provided for hereunder or under any other Loan Document shall be in writing (including by facsimile transmission). All such written notices shall be mailed, faxed or delivered to the applicable address, facsimile number or electronic mail address of such party designated by such party in a notice to the other parties. All such notices and other communications shall be deemed to be given or made upon the earlier to occur of (i) actual receipt by the relevant party hereto and (ii) (A) if delivered by hand or by courier, when signed for by or on behalf of the relevant party hereto; (B) if delivered by mail, four (4) Business Days after deposit in the mails, postage prepaid; (C) if delivered by facsimile, when sent and receipt has been confirmed by telephone; and (D) if delivered by electronic mail, when delivered and receipt is acknowledged by the recipient (including by means of a “read-receipt” or similar function).

 

(b)          Effectiveness of Facsimile Documents and Signatures. Loan Documents may be transmitted and/or signed by facsimile or other electronic communication. The effectiveness of any such documents and signatures shall, subject to applicable Law, have the same force and effect as manually signed originals and shall be binding on the Loan Parties, the Administrative Agent and the Lenders.

 

(c)          Reliance by the Administrative Agent and ▇▇▇▇▇▇▇. The Administrative Agent and the Lenders shall be entitled to rely and act upon any notices purportedly given by or on behalf of a Loan Party even if (i) such notices were not made in a manner specified herein, were incomplete or were not preceded or followed by any other form of notice specified herein, or (ii) the terms thereof, as understood by the recipient, varied from any confirmation thereof. The Loan Parties, jointly and severally, shall indemnify each Related Person and each Lender from all losses, costs, expenses and liabilities resulting from the reliance by such Person on each notice purportedly given by or on behalf of a Loan Party in the absence of gross negligence or willful misconduct. All telephonic notices to the Administrative Agent may be recorded by the Administrative Agent, and each of the parties hereto hereby consents to such recording.

SECTION 10.03. No Waiver; Cumulative Remedies. No failure by any Lender or the Administrative Agent to exercise, and no delay by any such Person in exercising, any right, remedy, power or privilege hereunder or under any other Loan Document shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges herein provided, and provided under each other Loan Document, are cumulative and not exclusive of any rights, remedies, powers and privileges provided by Law.

 

SECTION 10.04. Attorney Costs and Expenses. The Loan Parties, jointly and severally, agree (a) to pay or reimburse the Secured Parties for all reasonable and documented out-of-pocket costs and expenses incurred in connection with the preparation, negotiation and execution of this Agreement and the other Loan Documents or any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the transactions contemplated hereby or thereby shall be consummated), including all Attorney Costs, and (b) to pay or reimburse the Secured Parties for all reasonable and documented out-of-pocket costs and expenses incurred in connection with the administration and enforcement of any rights or remedies under this Agreement or the other Loan Documents (including all such costs and expenses incurred during any legal proceeding, including any proceeding under any Debtor Relief Law, and including all Attorney Costs). The agreements in this Section 10.04 shall survive the termination of the Term Loan and repayment of all other Obligations. All amounts due under this Section 10.04 shall be paid promptly, and in any event within ten (10) Business Days, following receipt by the Loan Parties of an invoice relating thereto setting forth such expenses in reasonable detail.

 

SECTION 10.05. Indemnification by the Borrower. The Loan Parties, jointly and severally, shall indemnify and hold harmless the Administrative Agent, the Related Persons, each Lender and their respective Affiliates (other than the Borrower), directors, officers, employees, agents, trustees or advisors (collectively the “Indemnitees”) from and against any and all liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses and disbursements (including Attorney Costs) of any kind or nature whatsoever which may at any time be imposed on, incurred by or asserted against any such Indemnitee in any way relating to or arising out of or in connection with (a) the execution, delivery, enforcement, performance or administration of any Loan Document or any other agreement, letter or instrument delivered in connection with the transactions contemplated thereby or the consummation of the transactions contemplated thereby, (b) any use or proposed use of the proceeds from the Term Loan, or (c) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) and regardless of whether any Indemnitee is a party thereto (all the foregoing, collectively, the “Indemnified Liabilities”); provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements resulted from the gross negligence or willful misconduct of such Indemnitee, as determined by a court of competent jurisdiction in a final and non-appealable judgment. No Indemnitee will have any liability for any special, punitive, indirect or consequential damages relating to this Agreement or any other Loan Document or arising out of its activities in connection herewith or therewith. The agreements in this Section 10.05 shall survive the resignation of the Administrative Agent, the replacement of any Lender, the termination of the Term Loan and the repayment, satisfaction or discharge of all the other Obligations.

 

SECTION 10.06. Taxes. The Loan Parties will pay all taxes and fees (including interest and penalties) including, without limitation, all recording and filing fees, issuance and documentary stamp and similar taxes, which may be payable in respect of the execution and delivery of this Agreement and each of the other Loan Documents.

SECTION 10.07. Payments Set Aside. To the extent that any payment by or on behalf of a Loan Party is made to the Administrative Agent or any Lender, or the Administrative Agent or any Lender exercises its right of setoff, and such payment or the proceeds of such setoff or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by the Administrative Agent or such Lender in its discretion) to be repaid to a trustee, receiver or any other party, in connection with any proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of such recovery, the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and effect as if such payment had not been made or such setoff had not occurred, and (b) each Lender severally agrees to pay to the Administrative Agent upon demand its applicable share of any amount so recovered from or repaid by the Administrative Agent.

 

SECTION 10.08. Successors and Assigns. 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 no Loan Party may assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of the Required Lenders. A Lender may assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of the Borrower or any other party.

 

SECTION 10.09. Interest Rate Limitation. Notwithstanding anything to the contrary contained in any Loan Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed the maximum rate of non-usurious interest permitted by applicable Law (the “Maximum Rate”). If the Administrative Agent or any Lender shall receive interest in an amount that exceeds the Maximum Rate, the excess interest shall be applied to the principal of the Term Loan or, if it exceeds such unpaid principal, refunded to the Borrower. In determining whether the interest contracted for, charged, or received by the Administrative Agent or a Lender exceeds the Maximum Rate, such Person may, to the extent permitted by applicable Law, (a) characterize any payment that is not principal as an expense, fee, or premium rather than interest, (b) exclude voluntary prepayments and the effects thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal parts the total amount of interest throughout the contemplated term of the Obligations hereunder.

 

SECTION 10.10. Counterparts. This Agreement and each other Loan Document may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Delivery by electronic mail (or other electronic means) of an executed counterpart of a signature page to this Agreement and each other Loan Document shall be effective as delivery of an original executed counterpart of this Agreement and such other Loan Document.

 

SECTION 10.11. Integration.This Agreement, together with the other Loan Documents, comprises the complete and integrated agreement of the parties on the subject matter hereof and thereof and supersedes all prior agreements, written or oral, on such subject matter. In the event of any conflict between the provisions of this Agreement and those of any other Loan Document, the provisions of this Agreement shall control.

SECTION 10.12. Survival of Representations and Warranties. All representations and warranties made hereunder and in any other Loan Document or other document delivered pursuant hereto or thereto or in connection herewith or therewith shall survive the execution and delivery hereof and thereof, and shall continue in full force and effect as long as any amount of the Term Loan or any other Obligation (other than Obligations that are not accrued and payable) hereunder shall remain unpaid or unsatisfied.

 

SECTION 10.13. Severability. If any provision of this Agreement or the other Loan Documents is held to be illegal, invalid or unenforceable, the legality, validity and enforceability of the remaining provisions of this Agreement and the other Loan Documents shall not be affected or impaired thereby. The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.

 

SECTION 10.14. GOVERNING LAW. THIS AGREEMENT AND EACH OTHER LOAN DOCUMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.

 

SECTION 10.15. WAIVER OF RIGHT TO TRIAL BY JURY. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY TO THIS AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION 10.15 WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.

 

SECTION 10.16. Binding Effect. This Agreement shall become effective when it shall have been executed by the Loan Parties, the Administrative Agent and the Lenders and thereafter shall be binding upon and inure to the benefit of the Loan Parties, the Administrative Agent and each Lender and their respective successors and assigns.

 

[Signature Pages Omitted]

Lender		Initial Term Loan Commitments				Delayed Draw Term Loan Commitments
MADRYN HEALTH PARTNERS, LP		$	828,025.53			$	9,620,000.00
MADRYN HEALTH PARTNERS (CAYMAN MASTER), LP		$	1,409,881.32			$	16,380,000.00
All Lenders		$	2,237,906.85			$	26,000,000.00