Exhibit 4.1

CONFIDENTIAL TREATMENT REQUESTED UNDER RULE 24b-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
[…***…] INDICATES OMITTED MATERIAL THAT IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST FILED SEPARATELY WITH THE COMMISSION. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION

DISTRIBUTION AGREEMENT

BETWEEN

CORREVIO INTERNATIONAL SARL

AND

BASILEA PHARMACEUTICA INTERNATIONAL LTD.

Dated as of September 11, 2017

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DISTRIBUTION AGREEMENT

THIS DISTRIBUTION AGREEMENT dated as of September 11, 2017 (the “Effective Date”) is made by and between Correvio International Sàrl, a corporation organized and existing under the laws of Switzerland with offices at Rue des Alpes 21, Case postale 1674, 1201 Geneva, Switzerland (hereinafter “Cardiome”), and Basilea Pharmaceutica International Ltd., a corporation organized and existing under the laws of Switzerland, with offices at Grenzacherstrasse 487, CH-4058, Basel, Switzerland (hereinafter “Basilea”). Cardiome and Basilea may be referred to herein individually as a “Party” or collectively as the “Parties.”

WITNESSETH:

WHEREAS, Basilea owns and/or has the exclusive right to certain technology, intellectual property rights and confidential and/or proprietary information relating to the Product;

WHEREAS, Basilea is engaged in the research, development, manufacturing and commercialization of pharmaceutical products and has been granted Marketing Authorisation of the Product in certain countries of the Territory;

WHEREAS, Cardiome is engaged in the registration, promotion and commercialization of pharmaceutical products in the Territory;

WHEREAS, Basilea wishes to grant Cardiome an exclusive license to commercialize the Product in the Territory, and Cardiome wishes to accept such license, subject to the terms and conditions of this Agreement;

NOW, THEREFORE, in consideration of these premises and the covenants and agreements set forth herein, and intending to be legally bound thereby, the Parties hereby agree as follows:

ARTICLE 1 DEFINITIONS

As used in this Agreement, the following terms shall have the meanings set forth below.

In no event shall any particular amount identified above be deducted more than once in calculating Net Sales (i.e., no “double counting” of reductions). Sales of the Product between Cardiome and its Affiliates and/or Third Party Sublicensees and/or Third Party Distributors for resale shall be excluded from the computation of Net Sales, but the subsequent resale of the Product by an Affiliate or Sublicensee, as applicable, to a Third Party shall be included within the computation of Net Sales.

Notwithstanding anything to the contrary herein, Cardiome’s disposal or use of the Product for regulatory, Development or charitable purposes when such disposal or use is not a sale (meaning that Cardiome receives no benefit either in cash or in kind for such disposal or use and issues no invoice related to such disposal or use), such as clinical trials, preclinical trials, compassionate use, named patient use, or indigent patient programs, without consideration, shall not be deemed a sale for the purposes of computation of the Net Sales clause. All supply for such purposes shall be purchased by Cardiome from Basilea at the Minimum Purchase Price pursuant to Section 7.3.

In no event shall the deductions provided in paragraph d) exceed a total of [...***...] of the gross revenues (the “Deduction Cap”).

For the avoidance of doubt, Clawback/Payback/ Managed Entry Requirements shall follow the terms set forth in Section 7.7(a) and are not permissible deductions from Net Sales.

For all deductions listed above, to the extent that Cardiome sells a grouped set of products in which the Product is included, the applicable discount, allowance, rebates and other deductions for the Product in such arrangement for purposes of calculating Net Sales shall be the average discount, allowance, rebate or other deductions for the group set of products (as compared to the non-discounted prices of the respective products when sold separately) multiplied by the fraction X/(X + Y), where X = the average discount, allowance, rebate or other deductions of the Product when sold separately (in percentage) and Y = the average discount, allowance, rebate or other deductions of other products in the group when sold separately (in percentage). An example of such calculation is attached to this Agreement in Schedule 7.

The definitions in this Article 1 shall apply equally to both the singular and plural forms of the terms defined. As used in this Agreement, (i) the words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”; (ii) the words “hereof”, “herein”, “hereby” and derivatives or similar words refer to this entire Agreement; (iii) all references to Articles and Sections shall be deemed references to Articles and Sections of this Agreement and all references to Schedules shall be deemed references to Schedules to this Agreement, unless the context shall otherwise require; (iv) whenever this Agreement refers to a number of days, such number shall refer to calendar days unless otherwise specified; and (v) references to “Basilea” or to “Cardiome” shall be deemed to include each one’s Affiliates, unless expressly stated to the contrary.

ARTICLE 2 APPOINTMENT AND PARTIES’ GENERAL CONDUCT

ARTICLE 3 COMMERCIALIZATION

ARTICLE 4 REGULATORY MATTERS AND PHARMACOVIGILANCE

ARTICLE 5 SUPPLY OF PRODUCT

ARTICLE 6 MANUFACTURING STANDARDS AND QUALITY ASSURANCE

ARTICLE 7 ASSUMED AND ACTUAL TRANSFER PRICE; PAYMENT TERMS

ARTICLE 8 EXECUTION PAYMENT; REGULATORY PAYMENTS; MILESTONE PAYMENTS

For the avoidance of doubt, in the event more than one threshold as listed above is reached in any calendar year for the first time, Cardiome shall make all one-time milestone payments achieved to Basilea (no matter whether more than one is achieved during a single calendar year).

ARTICLE 9 REPRESENTATIONS AND WARRANTIES

ARTICLE 10 INTELLECTUAL PROPERTY

ARTICLE 11 INDEMNIFICATION AND LIABILITY

ARTICLE 12 INSURANCE

ARTICLE 13 CONFIDENTIAL INFORMATION

ARTICLE 14 TERM; TERMINATION

For the avoidance of doubt, where the Agreement is only terminated on a country basis, the Parties’ rights and responsibilities shall only terminate in relation to such country and the provisions of the Agreement shall continue to apply in full force to all other countries.

ARTICLE 15 RECORDS AND AUDITS

ARTICLE 16 NOTICES

If to Cardiome:

Correvio International Sàrl
Rue des Alpes 21
Case postale 1674
1201 Geneva, Switzerland
Attention: General Counsel

with a copy to:

Cardiome Pharma Corp.
1441 Creekside Drive
Floor Six
Vancouver, BC V6J4S7
Canada
Attention: General Counsel

If to Basilea:

Basilea Pharmaceutica International Ltd
Grenzacherstrasse 487, CH-4058,
Basel, Switzerland
Attention: Chief Commercial Officer

with a copy to:

Basilea Pharmaceutica International Ltd
Grenzacherstrasse 487, CH-4058,
Basel, Switzerland
Attention: Legal Department

ARTICLE 17 MISCELLANEOUS

[Signatures on the next page]

IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be duly executed and delivered as of the date first written above.

Exhibit 4.2

Execution Version

SECOND AMENDED AND RESTATED TERM LOAN AGREEMENT

dated as of

May 15, 2018

between

CORREVIO PHARMA CORP. 

as Borrower,

The Subsidiary Guarantors from Time to Time Party Hereto,

The Lenders from Time to Time Party Hereto,

and

CRG SERVICING LLC

as Administrative and Collateral Agent

U.S. $50,000,000

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SCHEDULES AND EXHIBITS

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SECOND AMENDED AND RESTATED TERM LOAN AGREEMENT, dated as of May 15, 2018 (this “ Agreement ”), among CORREVIO PHARMA CORP., a corporation incorporated pursuant to the federal laws of Canada (“ Borrower ”), the Subsidiary Guarantors from time to time party hereto, the Lenders from time to time party hereto and CRG SERVICING LLC, a Delaware limited liability company (“ CRG Servicing ”), as administrative and collateral agent for the Lenders (in such capacities, together with its successors and assigns, “ Administrative Agent ”).

WITNESSETH:

Cardiome Pharma Corp., a corporation incorporated pursuant to the federal laws of Canada (“ Original Borrower ”), the Subsidiary Guarantors and the Administrative Agent were parties to that certain term loan agreement dated as of June 13, 2016 (the “ Original Agreement ”), pursuant to which the Lenders made available certain loan facilities to the Original Borrower;

Original Borrower, the Subsidiary Guarantors and the Administrative Agent are parties to that certain amended and restated term loan agreement dated as of May 11, 2017 as amended by a first amending agreement dated as of March 27, 2018 (the “ First A&R Agreement ”), pursuant to which the Original Agreement was amended and restated in its entirety to allow for additional loans to be made available to the Original Borrower pursuant to the terms thereof;

Original Borrower, Borrower, the Subsidiary Guarantors and the Administrative Agent entered into that certain Assignment, Assumption and Confirmation Agreement dated as of the Closing Date (the “ Assignment Agreement ”), pursuant to which the Original Borrower assigned to the Borrower all of its rights and obligations under the First A&R Agreement and the other Loan Documents to which the Original Borrower was party, and the Borrower assumed all of the rights and obligations of the Original Borrower under the First A&R Agreement and the other Loan Documents to which the Original Borrower was a Party, and the Subsidiary Guarantors confirmed their respective obligations under the First A&R Agreement and each of the other Loan Documents to which each such Subsidiary Guarantor was a party; and

Borrower has requested that the First A&R Agreement be amended and restated in its entirety pursuant to the terms hereof, and the Lenders are prepared to amend and restate the Original Agreement on and subject to the terms and conditions hereof (it being agreed that this Agreement shall not constitute a novation of the obligations and liabilities of the parties under the First A&R Agreement or be deemed to evidence or constitute full repayment of such obligations and liabilities, but that this Agreement amends and restates in its entirety the First A&R Agreement and re-evidences the obligations and liabilities of the Borrower outstanding thereunder, which shall be payable in accordance with the terms hereof).

Accordingly, the parties agree as follows:

SECTION 1

DEFINITIONS

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

“ 10-Non-Qualifying Bank Creditor Rule ” means the rule that the aggregate number of creditors (other than Qualifying Bank Creditors) of the Swiss Guarantors under the Loan Documents must not exceed ten (10).

“ 20-Non-Qualifying Bank Creditor Rule ” means the rule that the aggregate number of creditors (including the Lenders and the Participants), other than Qualifying Bank Creditors and related entities (provided that, the annual accounts of such related entities are fully consolidated at the level of the group as per recognized accounting standards) of a Swiss Guarantor, under all outstanding debts relevant for classification by the Swiss Federal Tax Administration as debenture ( Kassenobligation ), such as facilities and/or private placements (including with respect to the proceeds of the Loans that are on-lent to such Swiss Guarantor from time to time) must not at any time exceed twenty (20).

“ Accounting Change Notice ” has the meaning set forth in Section 1.05(a) .

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

“ 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 any business or product, or all or substantially all of the assets of any Person engaged in any business, (b) acquires control of securities of a Person engaged in a business representing more than 50% of the ordinary voting power 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 (c) acquires control of more than 50% of the ownership interest in any Person engaged in any business that is not managed by a board of directors or other governing body.

“ Affected Lender ” has the meaning set forth in Section 2.06(a) .

“ 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.

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

“ Asset Sale Net Proceeds ” means the aggregate amount of the cash proceeds received from any Asset Sale, net of any bona fide costs incurred in connection with such Asset Sale, plus, with respect to any non-cash proceeds of an Asset Sale, the fair market value of such non cash proceeds as determined by the Majority Lenders, acting reasonably.

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

“ Assignment and Assumption ” means an assignment and assumption entered into by a Lender and an assignee of such Lender.

“ Backend Facility Fee ” has the meaning given to such term in the Fee Letter.

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

“ Benefit Plan ” means any employee benefit plan as defined in Section 3(3) of ERISA (whether governed by the laws of the United States or otherwise) 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.

“ Borrower Facility ” means the premises located at Suite 600, 6 ^th floor, 1441 Creekside Drive, Vancouver, British Columbia, which are leased by Borrower pursuant to the Borrower Lease.

“ Borrower Landlord ” means Central 1 Credit Union.

“ Borrower Lease ” means the office lease dated July 23, 2014 by and between the Original Borrower (and subsequently assigned to the Borrower) and Borrower Landlord in respect of the Borrower Facility.

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

“ Borrowing ” means a borrowing consisting of Loans made on the same day by the Lenders according to their respective Commitments (including, without limitation, a borrowing of a PIK Loan).

“ Borrowing Date ” means the date of a Borrowing including, for certainty, the initial Borrowing made on June 14, 2016, the second Borrowing made on May 11, 2017 and the third Borrowing made on August 8, 2017.

“ Borrowing Notice Date ” means, (a) in the case of the second Borrowing, a date that is at least twelve Business Days prior to the Borrowing Date of such Borrowing and, (b) in the case of a subsequent Borrowing, a date that is at least twenty Business Days prior to the Borrowing Date of such Borrowing.

“ Business Day ” means a day (other than a Saturday or Sunday) on which commercial banks are not authorized or required to close in New York City or Vancouver, British Columbia.

“ Canadian Benefit Plans ” means all Canadian (including without limitation any Canadian provincial or territorial) plans, arrangements, agreements, programs, policies, practices or undertakings, whether oral or written, formal or informal, funded or unfunded, insured or uninsured, registered or unregistered, subject to the laws of Canada or any province or territory thereof to which an Obligor or any of its Subsidiaries is a party or bound or in which their employees participate or under which an Obligor or any of its Subsidiaries has, or will have, any liability or contingent liability, or pursuant to which payments are made, or benefits are provided to, or an entitlement to payments or benefits may arise with respect to, any of their employees or former employees, their directors or officers, individuals working on contract with an Obligor or any of its Subsidiaries or other individuals providing services to an Obligor or any of its Subsidiaries of a kind normally provided by employees (or any spouses, dependents, survivors or beneficiaries of any such persons).

“ Canadian Insolvency Legislation ” means the Bankruptcy and Insolvency Act (Canada), the Companies’ Creditors Arrangement Act (Canada), the Winding-up and Restructuring Act (Canada) or any other bankruptcy, insolvency or analogous law of Canada.

“ Canadian Pension Plans ” means all Canadian Benefit Plans which are required to be registered under Canadian provincial, territorial or federal pension benefits standards legislation.

“ Canadian Security Agreement ” means the Amended and Restated Canadian Security Agreement, dated as of the Closing Date, among the Borrower, the other grantors from time to time party thereto and Administrative Agent.

“ Canadian Security Documents ” means the Canadian Security Agreement, each Canadian Short-Form IP Security Agreement, the Landlord Consent and any other agreement governed by Canadian law that creates or purports to create security and that is entered into by a Canadian Obligor pursuant to this Agreement (as such agreement may be amended, restated, replaced, supplemented or otherwise modified from time to time).

“ Canadian Short-Form IP Security Agreement ” means the amended and restated (if applicable) short-form copyright, patent or trademark (as the case may be) security agreements governed by the laws of any province or territory of Canada, dated as of the Original Closing Date or the Closing Date, as the case may be, entered into by one or more Obligors in favor of the Secured Parties, each in form and substance satisfactory to the Majority Lenders (as such agreement may be amended, restated, replaced, supplemented or otherwise modified from time to time).

“ 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 in accordance with GAAP.

“ Change of Control ” means (a) the acquisition of ownership, directly or indirectly, beneficially or of record, by any Person or group of Persons acting jointly or otherwise in concert of capital stock representing (i) in the case of the Borrower, more than 30% of the aggregate ordinary voting power represented by the issued and outstanding capital stock of the Borrower or (ii) in the case of a Subsidiary Guarantor, any of the ordinary voting power represented by the issued and outstanding capital stock of such Subsidiary Guarantor, (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 the Borrower or any Subsidiary Guarantor by Persons who were neither (i) nominated by the board of directors of the Borrower or any Subsidiary Guarantor, as applicable, nor (ii) appointed by directors so nominated, or (c) the acquisition of direct or indirect Control of the Borrower or any Subsidiary Guarantor, as applicable, by any Person or group of Persons acting jointly or otherwise in concert; in each case whether as a result of a tender or exchange offer, open market purchases, privately negotiated purchases or otherwise.

“ Cipher Transaction ” means the purchase of all the outstanding shares of the Original Borrower pursuant to and on the terms and conditions of the arrangement agreement dated as of March 19, 2018 among Cipher Pharmaceuticals Inc., the Original Borrower and the Borrower.

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

“ Closing Date ” means May 15, 2018.

“ Code ” means the Internal Revenue Code of 1986, as amended from time to time, and the rules and regulations promulgated thereunder from time to time.

“ 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).

“ Commitment ” means, with respect to each Lender, the obligation of such Lender to make Loans to Borrower in accordance with the terms and conditions of this Agreement, which commitment is in the amount set forth opposite such Lender’s name on Schedule 1 under the caption “Commitment”, as such Schedule may be amended from time to time. The aggregate Commitments on the date hereof equal $50,000,000. For purposes of clarification, the amount of any PIK Loans shall not reduce the amount of the available Commitment.

“ Commitment Period ” means the period from and including the Original Closing Date and through and including March 31, 2018 or such later date as the Administrative Agent agrees to in writing in its sole discretion.

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

“ Compliance Certificate ” has the meaning given to such term in Section 8.01(d) .

“ Contracts ” means contracts, licenses, leases, agreements, obligations, promises, undertakings, understandings, arrangements, documents, commitments, entitlements or engagements under which a Person has, or will have, any liability or contingent liability (in each case, whether written or oral, express or implied).

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

“ Copyright ” has the meaning set forth in the Canadian Security Agreement.

“ Cure Amount ” has the meaning set forth in Section 10.03(a) .

“ Cure Right ” has the meaning set forth in Section 10.03(a) .

“ 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(b) .

“ Defaulting Lender ” means, subject to Section 2.05 , any Lender that (a) has failed to perform any of its funding obligations hereunder, including in respect of its Loans, within three (3) Business Days of the date required to be funded by it hereunder, (b) has notified Borrower or any Lender that it does not intend to comply with its funding obligations or has made a public statement to that effect with respect to its funding obligations hereunder or under other agreements in which it commits to extend credit, or (c) has, or has a direct or indirect parent company that has, (i) become the subject of an Insolvency Proceeding, (ii) had a receiver, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or a custodian appointed for it, or (iii) taken any action in furtherance of, or indicated its consent to, approval of or acquiescence in any such proceeding or appointment; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority.

“ Deposit Account ” is defined in the Canadian Security Agreement.

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

“ Domestic Subsidiary ” means any Subsidiary that is a corporation, limited liability company, unlimited liability company, partnership or similar business entity incorporated, formed or organized under the laws of the United States, any state of the United States, the District of Columbia, the laws of Canada or any province or territory of Canada.

“ Eligible Transferee ” means and includes a commercial bank, an insurance company, a finance company, a financial institution, any investment fund that invests in loans or any other “accredited investor” (as defined in Regulation D of the Securities Act) that is principally in the business of managing investments or holding assets for investment purposes, provided that each Eligible Transferee shall either (i) be a Qualifying Bank Creditor or (ii) not cause the number of existing Lenders and Participants (directly or indirectly) hereunder which are not, in each case, Qualifying Bank Creditors to exceed in aggregate ten (10).

“ English Debenture ” means the composite debenture between the English Obligors and the Administrative Agent dated the date of the Original Agreement.

“ English Guarantee ” means the composite guarantee between the English Obligors and the Administrative Agent dated the date of the Original Agreement.

“ English Obligors ” means Cardiome UK Limited (company number 06304464) and Correvio (UK) Ltd. (company number 06481819) both having their registered addresses at Lakeside House, 1 Furzeground Way, Stockley Park, Uxbridge, Middlesex, England UB11 1BD.

“ English Security Documents ” means the English Debenture, the English Share Charges and any other agreement governed by English law that creates or purports to create security and that is entered into by either of the English Obligors pursuant to this Agreement (as any such agreement may be amended, restated, replaced, supplemented or otherwise modified from time to time).

“ English Share Charges ” means each of:

1. the share charge between Cardiome International SA and the Administrative Agent over the shares in Correvio (UK) Ltd. dated the Closing Date; and

2. the share charge between the Borrower and the Administrative Agent over the shares in Cardiome UK Limited dated the Closing Date.

“ Environmental Law ” means any federal, state, provincial, territorial 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 Cure Right ” has the meaning set forth in Section 10.03(a) .

“ 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.

“ Equivalent Amount ” means, with respect to an amount denominated in one currency, the amount in another currency that could be purchased by the amount in the first currency determined by reference to the Exchange Rate at the time of determination.

“ 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), (c), (m) or (o) of the Code.

“ ERISA Event ” means (a) 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 by regulation has waived the requirement of Section 4043(a) of ERISA that it be notified within 30 days of the occurrence of such event; (b) the applicability of the requirements of Section 4043(b) of ERISA with respect to a contributing sponsor, as defined in Section 4001(a)(13) of ERISA, to any Title IV Plan where an event described in paragraph (9), (10), (11), (12) or (13) of Section 4043(c) of ERISA is reasonably expected to occur with respect to such plan within the following 30 days; (c) 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; (d) 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 reorganization or insolvency pursuant to Section 4241 or 4245 of ERISA; (e) 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; (f) 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; (g) the failure by any Obligor or any ERISA Affiliate thereof to make any required contribution to a 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; (h) the determination that any 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; (i) an event or condition which is reasonably likely 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; (x) the imposition of any liability under Title I or 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; (j) 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; (k) the occurrence of a non-exempt prohibited transaction under Sections 406 or 407 of ERISA for which any Obligor or any Subsidiary thereof may be directly or indirectly liable; (l) a violation of the applicable requirements of Section 404 or 405 of ERISA or the exclusive benefit rule under Section 401(a) of the Code by any fiduciary or disqualified person for which any Obligor or any ERISA Affiliate thereof may be directly or indirectly liable; (m) the occurrence of an act or omission which could give rise to the imposition on any Obligor or any ERISA Affiliate thereof of fines, penalties, taxes or related charges under Chapter 43 of the Code or under Sections 409, 502(c), (i) or (1) or 4071 of ERISA; (n) the assertion of a material claim (other than routine claims for benefits) against any Plan or the assets thereof, or against any Obligor or any Subsidiary thereof in connection with any such plan; (o) receipt from the IRS of notice of the failure of any Qualified Plan to qualify under Section 401(a) of the Code, or the failure of any trust forming part of any Qualified Plan to fail to qualify for exemption from taxation under Section 501(a) of the Code; (p) 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 I or IV, including Section 302(f) or 303(k) of ERISA or to Section 401(a)(29) or 430(k) of the Code; or (q) the establishment or amendment by any Obligor or any Subsidiary thereof of any “welfare plan”, as such term is defined in Section 3(1) of ERISA, that provides post-employment welfare benefits in a manner that would materially increase the liability of any Obligor.

“ ERISA Funding Rules ” means the rules regarding minimum required contributions (including any installment payment thereof) to Title IV Plans, as set forth in Sections 412, 430, 431, 432 and 436 of the Code and Sections 302, 303, 304 and 305 of ERISA.

“ Escrow Account ” means the “Escrow Fund” (as defined in the Murk Stock and Asset Purchase Agreement) established pursuant to the terms and conditions of the Murk Stock and Asset Purchase Agreement which includes an obligation of Borrower to maintain a minimum balance of $1,000,000 in such “Escrow Fund” at all times.

“ Event of Default ” has the meaning set forth in Section 11.01 .

“ Exchange Rate ” means the rate at which any currency (the “ Pre-Exchange Currency ”) may be exchanged into another currency (the “ Post-Exchange Currency ”), as set forth on such date on the relevant Reuters screen at or about 11:00 a.m. (Central time) on such date. In the event that such rate does not appear on the Reuters screen, the “Exchange Rate” with respect to exchanging such Pre-Exchange Currency into such Post-Exchange Currency shall be determined by reference to such other publicly available service for displaying exchange rates as may be agreed upon by Borrower and Administrative Agent or, in the absence of such agreement, such Exchange Rate shall instead be determined by Administrative Agent by any reasonable method as they deem applicable to determine such rate, and such determination shall be conclusive absent manifest error.

“ 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 imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax, (b) Other Connection Taxes, (c) United States federal withholding Taxes that are imposed on amounts payable to a Lender to the extent that the obligation to withhold amounts existed on the date that such Lender became a “Lender” under this Agreement, except in each case to the extent such 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 , (d) any Taxes imposed in connection with FATCA, (e) any Canadian federal withholding Taxes imposed on the payment as a result of having been made to a Recipient that, at the time of making such payment, (i) is a person with which an Obligor does not deal at arm’s length (for the purposes of the Income Tax Act (Canada)), or (ii) is a “specified shareholder” (as defined in subsection 18(5) of the Income Tax Act (Canada)) of an Obligor or does not deal at arm’s length (for the purposes of the Income Tax Act (Canada)) with such a “specified shareholder” (other than where the non-arm’s length relationship arises, or where the Recipient is a “specified shareholder” or does not deal at arm’s length with a “specified shareholder”, in connection with or as a result of the Recipient having become a party to, received or perfected a security interest under or received or enforced any rights under, a Loan Document), and (f) Taxes attributable to such Recipient’s failure to comply with Section 5.03(e) .

“ 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 more onerous to comply with), any regulations or official interpretations thereof and any agreements entered into pursuant to Section 1471(b)(1) of the Code.

“ Federal Funds Effective Rate ” means, for any day, the weighted average of the rates on overnight federal funds transactions with members of the Federal Reserve System arranged by federal funds brokers, as published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a Business Day, the average of the quotations for the day of such transactions received by Administrative Agent from three federal funds brokers of recognized standing selected by it.

“ Fee Letter ” means the second amended and restated fee letter agreement dated as of the date hereof between Borrower and Administrative Agent.

“ First Amendment ” means the First Amending Agreement to the First A&R Agreement dated as of March 27, 2018.

“ First A&R Agreement ” has the meaning set forth in the introduction hereto.

“ First Restatement Date ” means May 11, 2017.

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

“ Foreign Subsidiary ” means a Subsidiary of Borrower that is not a Domestic Subsidiary.

“ Fourth Borrowing Milestone ” has the meaning set forth in Section 6.04(c) .

“ French Security Documents ” has the meaning given to such term in Section 12.14 .

“ French Subsidiary Guarantor ” means any Subsidiary Guarantor incorporated or established in France.

“ 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) .

“ German Account Pledge Agreement s” means (i) the German law governed account Pledge Agreement dated as of the date of the Original Agreement and (ii) the German law governed confirmation and junior ranking account pledge agreement dated on or around the date of this Agreement, in each case entered into between, among others, Correvio GmbH as pledgor and the Administrative Agent.

“ German Confirmation Agreement – First Restatement ” means the German law governed confirmation agreement dated on or around the First Restatement Date and relating to (i) the German Security Assignment Agreement and (ii) the German Security Trust Agreement.

“ German Confirmation Agreement – Second Restatement ” means the German law governed confirmation agreement dated on or around the Closing Date and relating to (i) the German Security Assignment Agreement and (ii) the German Security Trust Agreement.

“ German Security Documents ” means the German Share Pledge Agreements, the German Security Assignment Agreement, the German Account Pledge Agreements, the German Confirmation Agreement – First Restatement, the German Confirmation Agreement – Second Restatement and any other agreement governed by German law that creates or purports to create security and that is entered into by a German Obligor pursuant to this Agreement.

“ German Security Assignment Agreement ” means the German law governed security assignment agreement dated the date of the Original Agreement entered into between, among others, Correvio GmbH as assignor and the Administrative Agent as collateral agent (as such agreement may be amended, restated, replaced, supplemented or otherwise modified from time to time).

“ German Security Trust Agreement ” means the German law governed security trust agreement dated the date of the Original Agreement entered into between, among others, Correvio GmbH and Correvio International Sàrl as security grantors and the Administrative Agent, under which the Administrative Agent has been granted certain rights and has assumed certain obligations in relation to the German Security Documents (as such agreement may be amended, restated, replaced, supplemented or otherwise modified from time to time).

“ German Share Pledge Agreements ” means (i) the German law governed share pledge agreement dated the date of the Original Agreement and (ii) the German law governed junior ranking share pledge agreement dated on or around the First Restatement Date, in each case entered into between, among others, Correvio International Sàrl as pledgor and the Administrative Agent.

“ Governmental Approval ” means any consent, authorization, approval, order, license, franchise, permit, certificate, accreditation, registration, filing or notice, of, issued by, from or to, or other act by or in respect of, any Governmental Authority.

“ Governmental Authority ” means any nation, government, branch of power (whether executive, legislative or judicial), state, province, territory or 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, province, territory, county, city or other political subdivision of the United States or Canada.

“ 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.

“ Guarantee Assumption Agreement ” means a Guarantee Assumption Agreement substantially in the form of Exhibit A by an entity that, pursuant to Section 8.12(a) , is required to become a “Subsidiary Guarantor” hereunder.

“ Guaranteed Obligations ” has the meaning set forth in Section 14.01 .

“ 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.

“ 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.

“ Indebtedness ” of any Person means, without duplication, (a) all obligations of such Person for borrowed money or obligations of such Person with respect to deposits or advances of any kind by third parties, (b) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, (c) all obligations of such Person upon which interest charges are customarily paid, (d) all obligations of such Person under conditional sale or other title retention agreements relating to property acquired by such Person, (e) all obligations of such Person in respect of the deferred purchase price of property or services (excluding current accounts payable incurred in the ordinary course of business), (f) 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, (g) all Guarantees by such Person of Indebtedness of others, (h) all Capital Lease Obligations of such Person, (i) all obligations, contingent or otherwise, of such Person as an account party in respect of letters of credit and letters of guaranty, (j) obligations under any Hedging Agreement, currency swaps, forwards, futures or derivatives transactions, (k) all obligations, contingent or otherwise, of such Person in respect of bankers’ acceptances, (l) all obligations of such Person under license or other agreements containing a guaranteed minimum payment or purchase by such Person, and (m) all Equity Interests of such Person subject to repurchase or redemption rights or obligations (excluding repurchases or redemptions at the sole option of such Person). 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.

“ 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, including any proceeding under applicable Canadian federal or provincial corporate law seeking an arrangement or compromise of some or all of the debts of a Person or a stay of proceedings to enforce some or all claims of creditors against a Person, 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 Canadian federal law, Canadian provincial or territorial law, United States federal law, U.S. state law, or foreign law, including the Bankruptcy Code and the Canadian Insolvency Legislation.

“ Intellectual Property ” means all Patents, Trademarks, Copyrights, and Technical Information, whether registered or not, domestic and foreign. Intellectual Property shall include all:

(a)          applications or registrations relating to such Intellectual Property;

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

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

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

“ Interest-Only Period ” means the period from and including the first Borrowing Date and through and including the sixteenth (16 ^th ) Payment Date following the first Borrowing Date unless the “Interest-Only Period” has been extended in accordance with Section 3.02(e) .

“ Interest Period ” means, with respect to each Borrowing, (a) initially, the period commencing on and including the Borrowing Date thereof and ending on and excluding the next Payment Date, and, (b) thereafter, each period beginning on and including the last day of the immediately preceding Interest Period and ending on and excluding the next succeeding Payment Date.

“ Invention ” means any novel, inventive and useful art, apparatus, method, process, machine (including article or device), manufacture or composition of matter, or any novel, inventive and useful improvement in any art, method, process, machine (including article or device), manufacture or composition of matter.

“ Investment ” means, for any Person: (a) the acquisition (whether for cash, property, services or securities or otherwise) of capital stock, 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 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 having a term not exceeding 90 days arising in connection with the sale of 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; or (d) the entering into of any Hedging Agreement.

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

“ Italian Account ” means an account, with a balance not to exceed $2,000,000 at any time, that is used as collateral against which Credit Suisse issues bid and performance bonds to Italian government regions for tenders of the Products.

“ Italian Civil Code ” means the Italian civil code, enacted by Royal Decree No. 262 of 16 March 1942, as subsequently amended and supplemented.

“ Knowledge ” means, with respect to any Person, the actual knowledge of any Responsible Officer of such Person and, in the case of Borrower, so long as he or she is employed by Borrower or its Subsidiaries, the actual knowledge of the chief executive officer or the chief financial officer, so long as such Person is an officer of Borrower.

“ Landlord Consent ” means a Landlord Consent substantially in the form of Exhibit F .

“ Laws ” means, collectively, all international, foreign, federal, state, provincial, territorial, municipal and local statutes, treaties, rules, guidelines, 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, in each case whether or not having the force of law.

“ Lender ” means each Person listed as a “Lender” on a signature page hereto, together with its successors, and each assignee of a Lender pursuant to Section 13.05(b) .

“ Lien ” means any mortgage, lien, hypothec, pledge, charge, assignment 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.

“ Liquidity ” means the balance of unencumbered (other than by Liens securing the Obligations) cash and Permitted Cash Equivalent Investments (which for greater certainty shall not include any undrawn credit lines), in each case, to the extent held in an account over which the Secured Parties have a first priority perfected security interest and have received an executed deposit account control agreement, blocked account agreement or similar agreement, in form and substance satisfactory to the Administrative Agent, with respect to each such account.

“ Loan ” means (a) each loan advanced by a Lender pursuant to Section 2.01 and (b) each PIK Loan deemed to have been advanced by a Lender pursuant to Section 3.02(d). For purposes of clarification, any calculation of the aggregate outstanding principal amount of Loans on any date of determination shall include both the aggregate principal amount of loans advanced pursuant to Section 2.01 and not yet repaid, and all PIK Loans deemed to have been advanced and not yet repaid, on or prior to such date of determination.

“ Loan Documents ” means, collectively, this Agreement, the Fee Letter, the Assignment Agreement, the Security Documents, each Warrant, the English Guarantee, the German Security Trust Agreement, the Swiss Share Pledge Transfer Agreement, any other subordination agreement or any intercreditor agreement entered into by Administrative Agent (on behalf of the Lenders) with any other creditors of Obligors or any agent acting on behalf of such creditors, and any other present or future document, instrument, agreement or certificate executed by Obligors and delivered to Administrative Agent or any Secured Party in connection with or pursuant to this Agreement or any of the other Loan Documents, all as amended, restated, supplemented or otherwise modified.

“ 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, Lenders having at such time in excess of 50% of the aggregate Commitments (or, if such Commitments are terminated, the outstanding principal amount of the Loans) then in effect, ignoring, in such calculation, the Commitments of and outstanding Loans owing to any Defaulting Lender.

“ Margin Stock ” means “margin stock” within the meaning of Regulation U.

“ Market Capitalization ” means, as of the date of determination, the product of (a) the sum of (i) the number of shares of Borrower’s common shares outstanding as of such date of determination and (ii) the number of shares (not included in clause (i)) of Borrower’s common shares that would be outstanding if all outstanding in-the-money stock options, warrants and convertible securities were exercised for, or converted into, as applicable, common shares and (b) the closing price of Borrower’s common shares on the Toronto Stock Exchange on such date of determination.

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

“ Material Agreements ” means (a) the agreements which are listed in Schedule 7.14 (as updated by Borrower from time to time in accordance with Section 8.16 to list all such agreements that meet the description set forth in clause (b) of this definition) and (b) all other agreements held by the Obligors from time to time, the absence or termination of any of which would reasonably be expected to result in a Material Adverse Effect; provided, however, that “Material Agreements” exclude all: (i) licenses implied by the sale of a product; and (ii) paid-up licenses for commonly available software programs under which an Obligor is the licensee. “Material Agreement” means any one such agreement.

“ Material Indebtedness ” means, at any time, any Indebtedness of any Obligor, the outstanding principal amount of which, individually or in the aggregate, exceeds $500,000 (or the Equivalent Amount in other currencies).

“ Material Intellectual Property ” means, the Obligor Intellectual Property described in Schedule 7.05(c) and any other Obligor Intellectual Property after the date hereof the loss of which could reasonably be expected to have a Material Adverse Effect.

“ Maturity Date ” means the earlier to occur of (a) the Stated Maturity Date, and (b) the date on which the Loans are accelerated pursuant to Section 11.02 .

“ Maximum Rate ” has the meaning set forth in Section 13.18(a).

“ MidCap ” means MidCap Financial Trust.

“ Minimum Required Revenue ” has the meaning set forth in Section in 10.02.

“ 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.

“ Murk Stock and Asset Purchase Agreement ” means the stock and asset purchase agreement dated as of November 18, 2013 between the Original Borrower (and subsequently assigned to the Borrower), Cardiome International SA, Murk Acquisition Sub, Inc., Correvio LLC and CarCor Investment Holdings LLC.

“ Non-Consenting Lender ” has the meaning set forth in Section 2.06(a) .

“ Non-Disclosure Agreement ” has the meaning set forth in Section 13.16 .

“ Non-Qualifying Bank Creditor Rules ” means the 10-Non-Qualifying Bank Creditor Rule and the 20-Non-Qualifying Bank Creditor Rule.

“ Notice of Borrowing ” has the meaning set forth in Section 2.02 .

“ Obligations ” means, with respect to any Obligor, all amounts, obligations, liabilities, covenants and duties of every type and description owing by such Obligor to any Lender, any other indemnitee hereunder or any participant, 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 or for the payment of money, including, without duplication, (a) if such Obligor is Borrower, all 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, and (c) 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 Intellectual Property owned by or licensed to any of the Obligors other than immaterial Intellectual Property owned by any Obligor in a jurisdiction which such Obligor does not have assets or revenue with a fair market value greater than $1,000,000 in aggregate.

“ Obligors ” means, collectively, Borrower and the Subsidiary Guarantors and their respective successors and permitted assigns.

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

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

“ Original Closing Date ” means June 13, 2016.

“ 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 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 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(g) ).

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

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

“ Payment Date ” means each March 31, June 30, September 30, December 31 and the Maturity Date, commencing on the first such date to occur following the first Borrowing Date; provided that , if any such date shall occur on a day that is not a Business Day, the applicable Payment Date shall be the immediately 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.

“ Permitted Acquisition ” means any acquisition by Borrower or any of its wholly-owned Subsidiaries, whether by purchase, merger, amalgamation 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; provided that :

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

(b)          all transactions in connection therewith shall be consummated, in all material respects, in accordance with all applicable Laws and in conformity 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 acquired, or otherwise issued by such Person or any newly formed Subsidiary of Borrower in connection with such acquisition, shall be owned 100% by an Obligor or any other Subsidiary, and Borrower shall have taken, or caused to be taken, as of the date such Person becomes a Subsidiary of Borrower, each of the actions set forth in Section 8.12 , if applicable;

(d)          Borrower and its Subsidiaries shall be in compliance with the financial covenants set forth in Section 10.01 and Section 10.02 on a pro forma basis after giving effect to such acquisition;

(e)          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 Borrower and/or its Subsidiaries are engaged or (ii) shall have a similar customer base as Borrower and/or its Subsidiaries; and

(f)           such Person has not at any time in the past or present established or been associated with any Canadian Pension Plans or any Canadian Benefit Plans.

“ Permitted Cash Equivalent Investments ” means investments made in accordance with the Borrower’s investment policy in existence as of the date of this Agreement provided that all such investments remain liquid at all times.

“ Permitted Credit Card Indebtedness ” means all Indebtedness owing by the Obligors in respect of Visa, Mastercard or other credit or charge card.

“ Permitted Cure Debt ” means Indebtedness incurred in connection with the exercise of the Subordinated Debt Cure Right and (a) that is governed by documentation containing representations, warranties, covenants and events of default no more burdensome or restrictive than those contained in the Loan Documents, (b) that has a maturity date at least six (6) months later than the Maturity Date, (c) in respect of which no cash payments of principal or interest are required prior to the Maturity Date, and (d) in respect of which the holders have agreed in favor of Borrower, Administrative Agent and Lenders (i) that prior to the date on which the Commitments have expired or been terminated and all Obligations have been paid in full indefeasibly in cash, such holders will not exercise any remedies available to them in respect of such Indebtedness, (ii) that such Indebtedness is unsecured, and (iii) to terms of subordination in an agreement in form and substance satisfactory to the Majority Lenders.

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

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

“ Permitted Priority Liens ” means (a) Liens permitted under Section 9.02(c), (d), (f), (g), (h), (i), (l), (m) and (o) , and (b) Liens permitted under Section 9.02(b) provided that such Liens are also of the type described in Section 9.02(c), (d), (f), (g), (h), (i), (l), (m) and (o).

“ Permitted Refinancing ” means, with respect to any Indebtedness, any extensions, renewals and replacements of such Indebtedness; provided that such extension, renewal or replacement (a) shall not increase the outstanding principal amount of such Indebtedness, (b) contains terms relating to outstanding principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole no less favorable in any material respect to Borrower and its Subsidiaries or the Secured Parties than the terms of any agreement or instrument governing such existing Indebtedness, (c) shall have an applicable interest rate which does not exceed the rate of interest of the Indebtedness being replaced, and (d) shall not contain any new requirement to grant any lien or security or to give any guarantee that was not an existing requirement of such Indebtedness.

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

“ PIK Loan ” has the meaning set forth in Section 3.02(d) .

“ PIK Period ” means the period beginning on the First Restatement Date through and including the earlier to occur of (a) March 31, 2020, and (b) the date on which any Default shall have occurred ( provided that if such Default shall have been cured or waived, the PIK Period shall resume until the earlier to occur of the next Default and March 31, 2020); provided, however, that upon the Borrower achieving the Revenue Milestone the PIK Period shall be extended to the Maturity Date.

“ Plan ” means any employee pension benefit plan (other than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA, and in respect of which Borrower or any ERISA Affiliate is (or, if such plan were terminated, would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.

“ PPSA ” shall mean the Personal Property Security Act (Ontario), the Civil Code of Québec or any other applicable Canadian federal, provincial or territorial statute pertaining to the granting, perfecting, priority or ranking of security interests, liens, hypothecs on personal property, and any successor statues, together with any regulations thereunder or Ministerial orders in respect thereof, in each case as in effect from time to time. References to sections of the PPSA and the Civil Code of Québec shall be construed to also refer to any successor sections.

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

“ Product ” means Aggrastat, Brinavess, Esmolol, Trevyent, Dalbavancin, Impavido and other products to be acquired or in-licensed, and each of their respective successors.

“ 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 (a) the sum of the Commitment (or, if the Commitments are terminated, the outstanding principal amount of the Loans) of such Lender then in effect by (b) the sum of the Commitments (or, if the Commitments are terminated, the outstanding principal amount of the Loans) of all Lenders then in effect.

“ Qualified Plan ” means an employee benefit plan (as defined in Section 3(3) of ERISA) other than a Multiemployer Plan (a) that is or was at any time maintained or sponsored by any Obligor or any ERISA Affiliate thereof or to which any Obligor or any ERISA Affiliate thereof has ever made, or was ever obligated to make, contributions, and (b) that is intended to be tax qualified under Section 401(a) of the Code.

“ Qualifying Bank Creditor ” means any entity which effectively conducts true banking activities as its principal purpose with its own infrastructure and staff, premises, communication devices of its own and the authority of decision making, and which is recognised as a bank by the banking laws in force in the jurisdiction of its incorporation.

“ Recipient ” means Administrative Agent, any Lender or any other recipient of any payment to be made by or on account of any Obligation.

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

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

“ 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 registrations, licenses, authorizations, permits or approvals issued by any Governmental Authority and applications or submissions related to any of the foregoing.

“ Related Person ” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents, trustees, administrators, managers, advisors and representatives of such Person and of such Person’s Affiliates.

“ Requirement of Law ” means, as to any Person, any statute, law, treaty, rule or regulation or determination, order, injunction or judgment of an arbitrator or a court or other Governmental Authority, in each case applicable to or binding upon such Person or any of its Properties or revenues.

“ 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 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 Borrower or any of its Subsidiaries or any option, warrant or other right to acquire any such shares of capital stock of Borrower or any of its Subsidiaries.

“ Restrictive Agreement ” has the meaning set forth in Section 7.15 .

“ Revenue ” of a Person means all revenue properly recognized under GAAP, consistently applied, less all rebates, discounts and other price allowances.

“ Revenue Milestone ” has the meaning set forth in Section 3.2(d) .

“ Secured Parties ” means the Lenders, Administrative Agent, each other Indemnified Party and any other holder of any Obligation.

“ Security Documents ” means, collectively, the Canadian Security Documents, the U.S. Security Documents, the English Security Documents, the French Security Documents, the German Security Documents, the Swiss Security Documents and each other security document, control agreement or other agreement that creates or purports to create Liens in favor of the Secured Parties, as such agreements may be amended, restated, replaced, supplemented or otherwise modified from time to time.

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

“ Series A Shares ” has the meaning given to such term in the Borrower’s articles of amalgamation.

“ Short-Form IP Security Agreements ” means the Canadian Short-Form IP Security Agreements and the U.S. Short-Form IP Security Agreements.

“ Solvent ” means, with respect to any Person at any time, that (a) the 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, (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, and (d) such Person is not an “insolvent person” within the meaning of the Bankruptcy and Insolvency Act (Canada).

“ Specified Financial Covenants ” has the meaning set forth in Section 10.03(a) .

“ Stated Maturity Date ” means the twenty-fourth (24 ^th ) Payment Date following the first Borrowing Date.

“ Subordinated Debt Cure Right ” has the meaning set forth in Section 10.03(a) .

“ Subsidiary ” means, with respect to any Person (the “ parent ”) at any date, any corporation, limited liability company, unlimited liability company, partnership, association or other entity the accounts of which would be consolidated with those of the parent in the parent’s consolidated financial statements if such financial statements were prepared in accordance with GAAP as of such date, as well as any other corporation, limited liability company, unlimited liability company, partnership, association or other entity (a) of which securities or other ownership interests representing more than 50% of the equity or more than 50% of the ordinary voting power or, in the case of a partnership, more than 50% of the general partnership interests are, as of such date, owned, controlled or held, or (b) that is, as of such date, otherwise Controlled, by the parent or one or more subsidiaries of the parent or by the parent and one or more subsidiaries of the parent.

“ Subsidiary Guarantors ” means each of the Subsidiaries of Borrower identified under the caption “SUBSIDIARY GUARANTORS” on the signature pages hereto and each Subsidiary of Borrower that becomes a “Subsidiary Guarantor” after the date hereof pursuant to Section 8.12(a) or (b) after having satisfied the requirements of such Sections, as applicable.

“ Substitute Lender ” has the meaning set forth in Section 2.06(a) .

“ Swiss Federal Tax Administration ” means the Swiss Federal tax administration (Eidgenössische Steuerverwaltung).

“ Swiss Guarantor ” means any of Cardiome International SA, Correvio International Sàrl and each other Subsidiary Guarantor party hereto, from time to time, organized under the laws of Switzerland.

“ Swiss Share Pledge Transfer Agreement ” has the meaning set forth in Section 6.06(iv)(D).

“ Swiss Security Documents ” means collectively, (a) security agreements executed by each of the Swiss Guarantors in favor of the Administrative Agent on behalf of the Secured Parties creating a first ranking security interest over certain of the Swiss Guarantor’s present and future (i) bank account claims, (ii) intellectual property rights and royalty claims, and (iii) trade, intra-group and insurance receivables; (b) share/quota pledge agreements executed by all of the shareholders or each of the Swiss Guarantors in favor of the Administrative Agent on behalf of the Secured Parties creating a first ranking security interest over all of the shares/quota in the capital of each of the Swiss Guarantors; and (c) any other agreement that creates or purports to create security and that is entered into by a Swiss Guarantor, all governed by the laws of Switzerland (as any such agreement may be amended, restated, replaced, supplemented or otherwise modified from time to time).

“ Swiss Witholding Tax ” means any withholding tax imposed under the Swiss Withholding Tax Act.

“ Swiss Withholding Tax Act ” means the Swiss Federal Act on Anticipatory Tax of October 13, 1965 (Bundesgesetz über die Verrechnungssteuer) with related regulations and guidelines, all as amended and applicable from time to time.

“ 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.

“ Technical Information ” means all trade secrets and other proprietary or confidential information, public information, non-proprietary know-how, any information of a scientific, technical, or business nature in any form or medium, standards and specifications, conceptions, ideas, innovations, discoveries, Invention disclosures, all documented research, developmental, demonstration or engineering work and all other information, data, plans, specifications, reports, summaries, experimental data, manuals, models, samples, know-how, technical information, systems, methodologies, computer programs, information technology and any other information.

“ Third Borrowing Milestone ” has the meaning set forth in Section 6.03(c) .

“ Title IV Plan ” means an employee benefit plan (as defined in Section 3(3) of ERISA) other than a Multiemployer Plan (i) that is or was within the past six (6) years maintained or sponsored by any Obligor or any ERISA Affiliate thereof or to which any Obligor or any ERISA Affiliate thereof is or was obligated to make within the past six (6) years, contributions, and (ii) that is or was subject to Section 412 of the Code, Section 302 of ERISA or Title IV of ERISA.

“ Trademarks ” is defined in the Canadian Security Agreement.

“ Transactions ” means the execution, delivery and performance by each Obligor of this Agreement and the other Loan Documents to which such Obligor is intended to be a party and the Borrowings (and the use of the proceeds of the Loans).

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

“ U.S. Security Agreement ” means the Amended and Restated U.S. Security Agreement, dated as of the Closing Date, among Cardiome, Inc., Artesian Therapeutics, Inc., Murk Acquisition Sub, Inc., Correvio LLC, the Borrower and Administrative Agent, granting a security interest in each of such Obligor’s personal Property in favor of the Secured Parties (as such agreement may be amended, restated, replaced, supplemented or otherwise modified from time to time).

“ U.S. Security Documents ” means the U.S. Security Agreement, each U.S. Short-Form IP Security Agreement and any other agreement governed by U.S. law that creates or purports to create security and that is entered into by a U.S. Obligor pursuant to this Agreement.

“ U.S. Short-Form IP Security Agreement ” means the amended and restated (if applicable) short-form copyright, patent or trademark (as the case may be) security agreements governed by the laws of any state or political subdivision of the United States of America, dated as of the Original Closing Date or the Closing Date, as the case may be, entered into by one or more Obligors in favor of the Secured Parties, each in form and substance satisfactory to the Majority Lenders (as such agreement may be amended, restated, replaced, supplemented or otherwise modified from time to time)).

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

“ Warrants ” means the warrants to purchase Equity Interests of Borrower, issued by Borrower to the Lender as to replace the warrants previously issued by the Original Borrower as an inducement for the Lenders to agree to the amendments to the Original Agreement and to the First Amendment.

“ 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.

1.02       Accounting Terms and Principles. All accounting determinations required to be made pursuant hereto shall, unless expressly otherwise provided herein, be made in accordance with GAAP. All components of financial calculations made to determine compliance with this Agreement, including Section 10 , shall be adjusted to include or exclude, as the case may be, without duplication, such components of such calculations attributable to any Acquisition 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 Borrower based on assumptions expressed therein and that were reasonable based on the information available to Borrower at the time of preparation of the Compliance Certificate setting forth such calculations.

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, Annex, Schedule or Exhibit refers to a Section 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, 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 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 permitted subsequent amendments, restatements, extensions, supplements and other modifications thereto.

1.04       Quebec Interpretation Clause. For purposes of any assets, liabilities or entities located in the Province of Québec and for all other purposes pursuant to which the interpretation or construction of this Agreement may be subject to the laws of the Province of Québec or a court or tribunal exercising jurisdiction in the Province of Québec, (i) “personal property” shall be deemed to include “movable property”, (ii) “real property” shall be deemed to include “immovable property”, (iii) “tangible property” shall be deemed to include “corporeal property”, (iv) “intangible property” shall be deemed to include “incorporeal property”, (v) “security interest”, “mortgage” and “lien” shall be deemed to include a “hypothec”, “prior claim”, “reservation of ownership” and a “resolutory clause”, (vi) all references to filing, registering or recording under the Uniform Commercial Code or the Personal Property Security Act shall be deemed to include publication under the Civil Code of Québec, (vii) all references to “perfection” of or “perfected” liens or security interest shall be deemed to include a reference to an “opposable” or “set up” hypothec as against third parties, (viii) any “right of offset”, “right of setoff” or similar expression shall be deemed to include a “right of compensation”, (ix) “goods” shall be deemed to include “corporeal movable property” other than chattel paper, documents of title, instruments, money and securities, (x) an “agent” shall be deemed to include a “mandatary”, (xi) “construction liens” shall be deemed to include “legal hypothecs in favour of persons having taken part in the construction or renovation of an immovable”; (xii) “joint and several” shall be deemed to include “solidary”; (xiii) “gross negligence or willful misconduct” shall be deemed to be “intentional or gross fault”; (xiv) “beneficial ownership” shall be deemed to include “ownership”; (xv) “legal title” shall be deemed to include “holding title on behalf of an owner as mandatary or prête-nom”; (xvi) “easement” shall be deemed to include “servitude”; (xvii) “priority” shall be deemed to include “rank” or “prior claim”, as applicable; (xviii) “survey” shall be deemed to include “certificate of location and plan”; (xix) “state” shall be deemed to include “province”; (xx) “fee simple title” shall be deemed to include “ownership” (including ownership under a right of superficies); (xi) “ground lease” shall be deemed to include “emphyteusis” or a “lease with a right of superficies”, as applicable; (xii) “leasehold interest” shall be deemed to include “a valid lease”; (xiii) “lease” shall be deemed to include a “contract of leasing (crédit-bail)” and (xiv) “deposit account” shall include a “financial account” as defined in Article 2713.6 of the Civil Code of Québec.

1.05       Changes to GAAP. If, after the date hereof, any change occurs in GAAP or in the application thereof and such change would cause any amount required to be determined for the purposes of the covenants to be maintained or calculated pursuant to Section 8 , 9 or 10 to be materially different than the amount that would be determined prior to such change, then:

(a)          Borrower will provide a detailed notice of such change (an “ Accounting Change Notice ”) to Administrative Agent within 30 days of such change;

(b)          either Borrower or the Majority Lenders may indicate within 90 days following the date of the Accounting Change Notice that they wish to revise the method of calculating such financial covenants or amend any such amount, in which case the parties will in good faith attempt to agree upon a revised method for calculating the financial covenants;

(c)          until Borrower and the Majority Lenders have reached agreement on such revisions, (i) such financial covenants or amounts will be determined without giving effect to such change and (ii) all financial statements, Compliance Certificates and similar documents provided hereunder shall be provided together with a reconciliation between the calculations and amounts set forth therein before and after giving effect to such change in GAAP;

(d)          if no party elects to revise the method of calculating the financial covenants or amounts, then the financial covenants or amounts will not be revised and will be determined in accordance with GAAP without giving effect to such change; and

(e) any Event of Default arising as a result of such change which is cured by operation of this Section 1.04 shall be deemed to be of no effect ab initio .

SECTION 2

THE COMMITMENT

2.01       Commitments. Each Lender agrees severally, on and subject to the terms and conditions of this Agreement (including Section 6 ), to make up to four term loans (provided that PIK Loans shall be deemed not to constitute “term loans” for purposes of this Section 2.01 ) to Borrower, each on a Business Day during the Commitment Period in Dollars in an aggregate principal amount for such Lender not to exceed such Lender’s Commitment; provided , however , that at no time shall any Lender be obligated to make a Loan in excess of such Lender’s Proportionate Share of the amount by which the then effective Commitments exceeds the aggregate principal amount of Loans outstanding at such time. Amounts of Loans repaid may not be reborrowed.

2.02       Borrowing Procedures. Subject to the terms and conditions of this Agreement (including Section 6 ), each Borrowing (other than a Borrowing of PIK Loans) shall be made on written notice in the form of Exhibit B given by Borrower to Administrative Agent not later than 11:00 a.m. (Central time) on the Borrowing Notice Date (a “ Notice of Borrowing ”).

2.03       Fees. Borrower shall pay to Administrative Agent and/or the Lenders, as applicable, such fees as described in the Fee Letter.

2.04       Use of Proceeds.

(a)          Borrower shall use the proceeds of the Loans for general working capital purposes and corporate purposes, to pay fees, costs and expenses incurred in connection with the Transactions and, only with respect to the first Borrowing, to pay existing Indebtedness owing to MidCap as set out in Section 6.01(g)(xiv) , but in no event shall the proceeds of the Loans be deposited or held in any account in which the Secured Parties do not have a first priority perfected security interest and in which the Administrative Agent has not received an executed deposit account control agreement, blocked account agreement or similar agreement, in form and substance satisfactory to the Administrative Agent; provided that the Lenders shall have no responsibility as to the use of any proceeds of Loans.

(b)          Notwithstanding the generality of Section 2.04(a) above:

(i)           the Borrower shall be permitted to receive the proceeds of the Loans in an account domiciled in Canada opened on behalf of and for the sole benefit of the Borrower despite such account not being subject to an executed deposit account control agreement, blocked account agreement or similar agreement as of the date of this Agreement; provided that the Borrower shall provide the Administrative Agent an executed deposit account control agreement, blocked account agreement or similar agreement, in form and substance satisfactory to the Administrative Agent, in accordance with the terms of Schedule 8.17 ; and

(ii)          the Borrower shall be permitted to provide proceeds of the Loans to deposit accounts held by and for the sole benefit of a Subsidiary Guarantor despite such account not being subject to an executed deposit account control agreement, blocked account agreement or similar agreement provided that at no time shall the aggregate account balance of all such accounts exceed $1,000,000.

(c)          No proceeds of the Loans shall be, directly or indirectly, extended, on-lent or otherwise advanced to any Swiss Guarantor (not including however a contribution of proceeds of the Loans into the equity of such Swiss Guarantor, which shall be permissible at all times) until such Swiss Guarantor has delivered to the Administrative Agent an officer’s certificate certifying that such Swiss Guarantor has obtained a confirmation (reasonably satisfactory as to content to the Administrative Agent) from the Swiss Federal Tax Administration (a copy of such confirmation to be attached to the officer’s certificate) which either (i) confirms that the entities that are a party to this Agreement as Lenders as of the date hereof are each eligible to qualify as one sole lender for the purpose of the 10-Non-Qualifying Bank Creditor Rule or (ii) otherwise confirms that no Swiss Withholding Tax will be imposed in respect of any payments of interest or in respect of any other payments related to the Loans.

2.05       Defaulting Lenders.

(a)           Adjustments . Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as that Lender is no longer a Defaulting Lender, to the extent permitted by applicable law:

(i)            Waivers and Amendments . Such Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in Section 13.04 .

(ii)           Reallocation of Payments . Any payment of principal, interest, fees or other amounts received by the Lenders for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Section 11 or otherwise), shall be applied at such time or times as follows: first, as Borrower may request (so long as no Default exists), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement; second, if so determined by the Majority Lenders and Borrower, to be held in a non-interest bearing deposit account and released in order to satisfy obligations of such Defaulting Lender to fund Loans under this Agreement; third, to the payment of any amounts owing to the Lenders as a result of any judgment of a court of competent jurisdiction obtained by any Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; fourth, so long as no Default exists, to the payment of any amounts owing to Borrower as a result of any judgment of a court of competent jurisdiction obtained by Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and fifth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (A) such payment is a payment of the principal amount of any Loans in respect of which such Defaulting Lender has not fully funded its appropriate share and (B) such Loans were made at a time when the conditions set forth in Section 6 were satisfied or waived, such payment shall be applied solely to pay the Loans of all non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of such Defaulting Lender. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender pursuant to this Section 2.05(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.

(b)           Defaulting Lender Cure . If Borrower and the Majority Lenders agree in writing in their sole discretion that a Defaulting Lender should no longer be deemed to be a Defaulting Lender, that Lender will, to the extent applicable, purchase that portion of outstanding Loans of the other Lenders or take such other actions as necessary to cause the Loans to be held on a pro rata basis by the Lenders in accordance with their Proportionate Share, whereupon that Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of Borrower while that Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.

2.06       Substitution of Lenders.

(a)           Substitution Right . If any Lender (an “ Affected Lender ”), (i) becomes a Defaulting Lender or (ii) does not consent to any amendment, waiver or consent to any Loan Document for which the consent of the Majority Lenders is obtained but that requires the consent of other Lenders (a “ Non-Consenting Lender ”), then (x) Borrower may elect to pay in full such Affected Lender with respect to all Obligations due to such Affected Lender or (y) either Borrower or Administrative Agent shall identify any willing Lender or Affiliate of any Lender or Eligible Transferee (in each case, a “ Substitute Lender ”) to substitute for such Affected Lender; provided that any substitution of a Non-Consenting Lender shall occur only with the consent of Administrative Agent.

(b)           Procedure . To substitute such Affected Lender or pay in full all Obligations owed to such Affected Lender, Borrower shall deliver a notice to such Affected Lender. The effectiveness of such payment or substitution shall be subject to the delivery by Borrower (or, as may be applicable in the case of a substitution, by the Substitute Lender) of (i) payment for the account of such Affected Lender, of, to the extent accrued through, and outstanding on, the effective date for such payment or substitution, all Obligations owing to such Affected Lender (which for the avoidance of doubt, shall not include any Prepayment Premium) and (ii) in the case of a substitution, an Assignment and Assumption executed by the Substitute Lender, which shall thereunder, among other things, agree to be bound by the terms of the Loan Documents.

(c)           Effectiveness . Upon satisfaction of the conditions set forth in Sections 2.06(a) and (b) , Administrative Agent shall record such substitution or payment in the Register, whereupon (i) in the case of any payment in full of an Affected Lender, such Affected Lender’s Commitments shall be terminated and (ii) in the case of any substitution of an Affected Lender, (A) such Affected Lender shall sell and be relieved of, and the Substitute Lender shall purchase and assume, all rights and claims of such Affected Lender under the Loan Documents, except that the Affected Lender shall retain such rights under the Loan Documents that expressly provide that they survive the repayment of the Obligations and the termination of the Commitments, (B) such Affected Lender shall no longer constitute a “Lender” hereunder and such Substitute Lender shall become a “Lender” hereunder and (C) such Affected Lender shall execute and deliver an Assignment and Assumption to evidence such substitution; provided , however , that the failure of any Affected Lender to execute any such Assignment and Assumption shall not render such sale and purchase (or the corresponding assignment) invalid.

2.07       Prior Borrowings. The Borrower hereby acknowledges (x) that the Original Borrower made (i) the first Borrowing on June 14, 2016 in an amount of $20,000,000, (ii) the second Borrowing on May 11, 2017 in an amount of $10,000,000 and (iii) the third Borrowing on August 8, 2017 in an amount of $10,000,000, each of which remain outstanding as of the date hereof and (y) receipt of the proceeds of each such Borrowing pursuant to the terms of the Assignment Agreement.

SECTION 3

PAYMENTS OF PRINCIPAL AND INTEREST

3.01       Repayment.

(a)           Repayment . During the Interest-Only Period, no payments of principal of the Loans shall be due. Borrower agrees to repay to the Lenders the outstanding principal amount of the Loans, on each Payment Date occurring after the Interest-Only Period, in equal installments. The amounts of such installments shall be calculated by dividing (i) the sum of the aggregate principal amount of the Loans outstanding on the first day following the end of the Interest-Only Period, by (ii) the number of Payment Dates remaining prior to and including the Stated Maturity Date.

(b)           Application . Any optional or mandatory prepayment of the Loans shall be applied to the installments thereof under Section 3.01(a) in the inverse order of maturity. To the extent not previously paid, the principal amount of the Loans, together with all other outstanding Obligations, shall be due and payable on the Maturity Date.

3.02       Interest.

(a)           Interest Generally . Subject to Section 3.02(d) , Borrower agrees to pay to the Lenders interest on the unpaid principal amount of the Loans and the amount of all other outstanding Obligations, in the case of the Loans, for the period from the applicable Borrowing Date, and in the case of any other Obligation, from the date such other Obligation is due and payable, in each case, until paid in full, at a rate per annum equal to (i) on and after the First Restatement Date, thirteen percent (13%), and (ii) from the Original Closing Date to the date immediately preceding the First Restatement Date, fourteen percent (14%).

(b)           Default Interest . Notwithstanding the foregoing, upon the occurrence and during the continuance of any Event of Default, the interest payable pursuant to Section 3.02(a) shall, subject to applicable laws, increase automatically by 4.00% per annum (such aggregate increased rate, the “ Default Rate ”). Notwithstanding any other provision herein, interest required to be paid at the Default Rate shall be paid entirely in cash. If any Obligation is not paid when due under the applicable Loan Document, the amount thereof shall, subject to applicable laws, accrue interest at a rate equal to 4.00% per annum (without duplication of interest payable at the Default Rate). Each Obligor acknowledges that interest payable under this Agreement at the Default Rate represents a genuine pre-estimate of damages to the Lenders and shall not be construed as a penalty.

(c)           Interest Payment Dates . Subject to Section 3.02(d) , accrued interest on the 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 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.

(d)           Paid In-Kind Interest . Notwithstanding Section 3.01(a) , at any time during the PIK Period, Borrower may, on notice to the Administrative Agent, elect at the time that the Borrower makes the applicable interest payment to pay the interest on the outstanding principal amount of the Loans payable pursuant to Section 3.01 as follows: (i) only 9.00% of the 13.00% per annum interest in cash and (ii) 4.00% of the 13.00% per annum interest as compounded interest, which will be added to the aggregate principal amount of the Loans (the amount of any such compounded interest being a “ PIK Loan ”). The principal amount of each PIK Loan shall accrue interest in accordance with the provisions of this Agreement applicable to the Loans.

(e)           Interest-Only Period . The Interest-Only Period may be extended to the twenty-third (23 ^rd ) Payment Date if (a) the Borrower’s Revenue resulting from the sale of the Products meets or exceeds $80,000,000 during any consecutive twelve (12) month period on or prior to the twenty-third (23 ^rd ) Payment Date (the “ Revenue Milestone ”), (b) the Borrower has requested such extension of the Interest-Only Period in writing to the Administrative Agent, (c) the Administrative Agent has received evidence, in form and substance satisfactory to the Administrative Agent in its sole discretion, of the Revenue Milestone, (d) no Default or Event of Default has occurred and is continuing, and (e) the Administrative Agent has provided written confirmation (which for certainty may be in the form of electronic communication) of such extension of the Interest-Only Period, which for certainty shall be provided if conditions (c) and (d) of this Section 3.02(e) have been satisfied.

(f)           Interest Act (Canada) . For the purposes of this Agreement, whenever interest is calculated on the basis of a period which is less than the actual number of days in a calendar year (a “ deemed year ”), each rate of interest determined pursuant to such calculation shall, for the purposes of the Interest Act (Canada), be expressed as a yearly rate by multiplying such rate of interest for the deemed year by the actual number of days in the calendar year in which such rate is to be ascertained and dividing the product thereof by the number of days in the deemed year. The Borrower confirms that it and each of the Subsidiary Guarantors understand and is able to calculate the rate of interest applicable to the Loans based on the methodology for calculating per annum rates provided in this Agreement. The Borrower and each Subsidiary Guarantor agree not to plead or assert, whether by way of defence or otherwise, in any proceeding relating to this Agreement or any other Loan Document, that the interest payable under this Agreement or any other Loan Document and the calculation thereof has not been adequately disclosed to the Borrower or the Subsidiary Guarantors as required pursuant to section 4 of the Interest Act (Canada) or any other applicable law.

3.03       Prepayments.

(a)           Optional Prepayments . Borrower shall have the right to optionally prepay in whole or in part the outstanding principal amount of the Loans on any Payment Date (a “ Redemption Date ”) for an amount equal to the aggregate principal amount of the Loans being prepaid plus the Prepayment Premium plus any accrued but unpaid interest and any fees then due and owing (such aggregate amount, the “ Redemption Price ”). The applicable “ Prepayment Premium ” shall be an amount calculated pursuant to Section 3.03(a)(i) .

(i)           If the Redemption Date occurs:

(A)         on or prior to the fourth (4 ^th ) Payment Date, the Prepayment Premium shall be an amount equal to five percent (5%) of the aggregate outstanding principal amount of the Loans being prepaid on such Redemption Date plus the Backend Facility Fee related to such Loans;

(B)         after the fourth (4 ^th ) Payment Date, but on or prior to the eighth (8 ^th ) Payment Date, the Prepayment Premium shall be an amount equal to four percent (4%) of the aggregate outstanding principal amount of the Loans being prepaid on such Redemption Date plus the Backend Facility Fee related to such Loans;

(C)          after the eighth (8 ^th ) Payment Date, but on or prior to the twelfth (12 ^th ) Payment Date, the Prepayment Premium shall be an amount equal to three percent (3%) of the aggregate outstanding principal amount of the Loans being prepaid on such Redemption Date plus the Backend Facility Fee related to such Loans;

(D)          after the twelfth (12 ^th ) Payment Date, but on or prior to the sixteenth (16 ^th ) Payment Date, the Prepayment Premium shall be an amount equal to two percent (2%) of the aggregate outstanding principal amount of the Loans being prepaid on such Redemption Date plus the Backend Facility Fee related to such Loans;

(E)          after the sixteenth (16 ^th ) Payment Date, but on or prior to the twentieth (20 ^th ) Payment Date, the Prepayment Premium shall be an amount equal to one percent (1%) of the aggregate outstanding principal amount of the Loans being prepaid on such Redemption Date plus the Backend Facility Fee related to such Loans;

(F)          after the twentieth (20 ^th ) Payment Date, the Prepayment Premium shall be an amount equal to 0.00% of the aggregate outstanding principal amount of the Loans being prepaid on such Redemption Date plus the Backend Facility Fee related to such Loans.

(ii)          To determine the aggregate outstanding principal amount of the Loans, and how many Payment Dates have occurred, as of any Redemption Date for purposes of Section 3.03(a) :

(A)         if, as of such Redemption Date, Borrower shall have made only one Borrowing, the number of Payment Dates shall be deemed to be the number of Payment Dates that shall have occurred following the first Borrowing Date;

(B)          if, as of such Redemption Date, Borrower shall have made more than one Borrowing, then the Redemption Price shall equal the sum of multiple Redemption Prices calculated with respect to the Loans of each Borrowing, each of which Redemption Prices shall be calculated based on solely the aggregate outstanding principal amount of the Loans borrowed in such Borrowing, as though the applicable number of Payment Dates equals the number of Payment Dates that shall have occurred following the applicable Borrowing Date. In the case of any partial prepayment, the amount of such prepayment shall be allocated to Loans made in the various Borrowings in the order in which such Borrowings were made;

(iii)         No partial prepayment shall be made under this Section 3.03(a) in connection with any event described in Section 3.03(b) .

(iv)         Borrower shall deliver to the Administrative Agent a notice of optional repayment in accordance with Section 4.03(a) in respect of all prepayments permitted under Section 3.03(a) .

(b)           Mandatory Prepayments.

(i)            Asset Sales . In the event of any contemplated Asset Sale or series of Asset Sales (other than any Asset Sale permitted under Section 9.09(a) , (b) , (d) or (e) ) yielding Asset Sale Net Proceeds in excess of $1,000,000 in the aggregate, Borrower shall provide 30 days’ prior written notice of such Asset Sale to Administrative Agent and, if within such notice period Majority Lenders or Administrative Agent advise Borrower that the Majority Lenders require a prepayment pursuant to this Section 3.03(b)(i) , Borrower shall: (x) if the assets sold represent substantially all of the assets or revenues of Borrower, or represent any specific line of business which either on its own or together with other lines of business sold over the term of this Agreement account for revenue generated by such lines of business exceeding 10% of the revenue of Borrower in the immediately preceding year, prepay the aggregate outstanding principal amount of the Loans in an amount equal to the Redemption Price applicable on the date of such Asset Sale in accordance with Section 3.03(a) , and (y) in the case of all other Asset Sales not described in the foregoing clause (x) , prepay the Loans in an amount equal to the entire amount of the Asset Sale Net Proceeds of such Asset Sale, plus any accrued but unpaid interest and any fees then due and owing (including for certainty the Backend Facility Fee), credited in the following order:

(A)         first, in reduction of Borrower’s obligation to pay any unpaid interest and any fees then due and owing;

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

(C)          third, in reduction of Borrower’s obligation to pay any amounts due and owing on account of the unpaid principal amount of the Loans;

(D)          fourth, in reduction of any other Obligation then due and owing;

and

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

(ii)           Change of Control . In the event of a Change of Control, Borrower shall immediately provide notice of such Change of Control to Administrative Agent and, if within ten (10) days of receipt of such notice the Majority Lenders or Administrative Agent advise Borrower that the Majority Lenders require a prepayment pursuant to this Section 3.03(b)(ii) , Borrower shall prepay the aggregate outstanding principal amount of the Loans in an amount equal to the Redemption Price applicable on the date of such Change of Control in accordance with Section 3.03(a) . The Majority Lenders shall use commercially reasonable efforts to review and approve any mergers, amalgamations or other reorganizations resulting from acquisitions which lead to a Change of Control but are materially beneficial to both the Borrower and the Lender’s security interests and rights to the Borrower’s assets, property, rights and interests.

SECTION 4

PAYMENTS, ETC.

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 an account to be designated by Administrative Agent by notice to Borrower, not later than 4:00 p.m. (Central time) on the date on which such payment shall become 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 . Each Obligor shall, at the time of making each payment under this Agreement or any other Loan Document, specify to Administrative Agent the amounts payable by such Obligor hereunder to which such payment is to be applied (and in the event that Obligors fail to so specify, or if an Event of Default has occurred and is continuing, the Lenders may apply such payment in the manner they determine to be appropriate).

(c)           Non-Business Days . If the due date of any payment under this Agreement (other than of principal of or interest on the Loans) 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.

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.

4.03       Notices. Each notice of optional prepayment shall be effective only if received by Administrative Agent not later than 4:00 p.m. (Central time) on the date one Business Day prior to the date of prepayment. Each notice of optional prepayment shall specify the amount to be prepaid and the date of prepayment.

4.04       Set-Off.

(a)           Set-Off Generally . Upon the occurrence and during the continuance of any Event of Default, each of Administrative Agent, each Lender and each of their Affiliates is 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 Administrative Agent, any Lender and any of their Affiliates to or for the credit or the account of any Obligor against any and all of the Obligations, whether or not such Person shall have made any demand and although such obligations may be unmatured. Administrative Agent and each Lender agree promptly to notify 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 Administrative Agent, each Lender and each of their Affiliates under this Section 4.04 are in addition to other rights and remedies (including other rights of set-off) that such Persons may have.

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

4.05       Pro Rata Treatment.

(a)          Unless Administrative Agent shall have been notified in writing by any Lender prior to the proposed date of any Borrowing that such Lender will not make the amount that would constitute its share of such Borrowing available to Administrative Agent, Administrative Agent may assume that such Lender has made such amount available to Administrative Agent on such date in accordance with Section 2 , and Administrative Agent may, in reliance upon such assumption, make available to Borrower a corresponding amount. If such amount is not in fact made available to Administrative Agent by the required time on the applicable Borrowing Date therefor, such Lender and Borrower severally agree to pay to Administrative Agent forthwith, on demand, such corresponding amount with interest thereon, for each day from and including the date on which such amount is made available to Borrower but excluding the date of payment to Administrative Agent, at (i) in the case of a payment to be made by such Lender, a rate equal to the greater of (A) the Federal Funds Effective Rate and (B) a rate reasonably determined by Administrative Agent in accordance with banking industry rules on interbank compensation. If Borrower and such Lender shall pay such interest to Administrative Agent for the same or an overlapping period, Administrative Agent shall promptly remit to Borrower the amount of such interest paid by Borrower for such period. If such Lender pays its share of the applicable borrowing to Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such borrowing. Any payment by Borrower shall be without prejudice to any claim Borrower may have against a Lender that shall have failed to make such payment to Administrative Agent.

(b)          Unless Administrative Agent shall have received notice from Borrower prior to the date on which any payment is due to Administrative Agent for the account of the Lenders hereunder that Borrower will not make such payment, Administrative Agent may assume that Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders the amount due. In such event, if Borrower has not in fact made such payment, then each of the Lenders severally agrees to repay to Administrative Agent forthwith on demand the amount so distributed to such Lender, with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by Administrative Agent in accordance with banking industry rules on interbank compensation. Nothing herein shall be deemed to limit the rights of Administrative Agent or any Lender against any Obligor.

(c)          If any Lender shall obtain any payment (whether voluntary, involuntary, through the exercise of any right of set-off, or otherwise) on account of the principal of or interest on any Loan made by it or other obligations hereunder, as applicable (other than pursuant to a provision hereof providing for non-pro rata treatment), in excess of its Proportionate Share, of such payment on account of the Loans, such Lender shall (i) notify Administrative Agent of the receipt of such payment, and (ii) within five (5) Business Days of such receipt purchase (for cash at face value) from the other Lenders, as applicable (directly or through Administrative Agent), without recourse, such participations in the Loans made by them or make such other adjustments as shall be equitable, as shall be necessary to cause such purchasing Lender to share the excess payment ratably with each of the other Lenders in accordance with their respective Proportionate Shares, as applicable; provided, however, that (A) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest and (B) the provisions of this paragraph shall not be construed to apply to (x) any payment made by Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or (y) any payment obtained by a Lender as consideration for the assignment or sale of a participation in any of its Loans to any assignee or participant, other than to Borrower or any of its Affiliates (as to which the provisions of this paragraph shall apply). Borrower agrees that any Lender so purchasing a participation from another Lender pursuant to this Section 4.05(c) may exercise all its rights of payment (including the right of set-off) with respect to such participation as fully as if such Lender were the direct creditor of Borrower in the amount of such participation. No documentation other than notices and the like referred to in this Section 4.05(c) shall be required to implement the terms of this Section 4.05(c) . Administrative Agent shall keep records (which shall be conclusive and binding in the absence of manifest error) of participations purchased pursuant to this Section 4.05(c) and shall in each case notify the Lenders following any such purchase. Borrower consents on behalf of itself and each other Obligor to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against each Obligor rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of each Obligor in the amount of such participation.

SECTION 5

YIELD PROTECTION, ETC.

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 of the Lenders (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 Loans or the Commitment, and the result of any of the foregoing is to increase the cost to such Lender of making or maintaining the Loans (other than (i) Indemnified Taxes and (ii) Taxes described in clause (c) , (d) or (f) of the definition of “Excluded Taxes”), or to reduce the amount of any sum received or receivable by such Lender under this Agreement or any other Loan Document, by an amount deemed by such Lender to be material, then Borrower shall pay to such Lender on demand such additional amount or amounts as will compensate such Lender for such increased cost or reduction.

(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 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 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 . Each Lender (directly or through Administrative Agent) will promptly notify Borrower of any event of which it has knowledge, occurring after the date hereof, which will entitle such 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 additional amount or amounts to be paid to it hereunder, shall be conclusive and binding on Borrower in the absence of manifest error.

(d)          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.

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 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 Borrower thereof following which (a) the Lender’s Commitment shall be suspended until such time as such Lender may again make and maintain the Loans hereunder and (b) if such Requirement of Law shall so mandate, the Loans shall be prepaid by 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) .

5.03       Taxes .

(a)           Payments Free of Taxes . Any and all payments by or 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 an Obligor, then such Obligor 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 has been made (including such deductions and withholdings applicable to additional sums payable under this Section 5 ) the applicable Recipient receives an amount equal to the sum it would have received had no such deduction or withholding been made.

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

(c)           Evidence of Payments . As soon as practicable after any payment of Taxes by Borrower to a Governmental Authority pursuant to this Section 5 , Borrower shall deliver to Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment.

(d)           Indemnification . Borrower shall reimburse and indemnify each Recipient, within 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 ) 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 Borrower by a Lender shall be conclusive absent manifest error.

(e)           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 timely deliver to Borrower (directly or through Administrative Agent) such properly completed and executed documentation reasonably requested by Borrower as will permit such payments to be made without withholding or at a reduced rate of withholding; provided that, other than in the case of United States federal withholding Taxes, such Lender has received written notice from Borrower advising it of the availability of such exemption or reduction and containing all applicable documentation. In addition, any Lender shall deliver (directly or through Administrative Agent) such other documentation prescribed by applicable law as reasonably requested by Borrower as will enable Borrower 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(e)(ii)(A) , (B) , (C) 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, in the event that Borrower is a U.S. Person:

(A)         any Lender that is a U.S. Person shall deliver to Borrower (directly or through 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 Borrower), executed originals of IRS Form W-9 (or successor form) certifying that such Lender is exempt from United States federal backup withholding tax;

(B)          any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to Borrower (directly or through Administrative Agent and 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 Borrower), 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, executed originals of IRS Form W-8BEN or W-8BEN-E (or successor forms) establishing an exemption from, or reduction of, United States 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, IRS Form W-8BEN or W-8BEN-E (or successor forms) establishing an exemption from, or reduction of, United States federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;

(2)         executed originals of IRS Form W-8ECI (or successor form);

(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 G 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 and (y) executed originals of IRS Form W-8BEN or W-8BEN-E (or successor forms); or

(4)         to the extent a Foreign Lender is not the beneficial owner, executed originals of IRS Form W-8IMY (or successor form), accompanied by IRS Form W-8ECI (or successor form), IRS Form W-8BEN or W-8BEN-E (or successor forms), 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 certificate substantially in the form of Exhibit C 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 Borrower (directly or through Administrative Agent and 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 Borrower), executed originals of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in United States federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit Borrower to determine the withholding or deduction required to be made; and

(D)          any Foreign Lender shall deliver to Borrower (directly or through Administrative Agent) any forms and information necessary to establish that such Foreign Lender is not subject to withholding tax under FATCA.

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

(f)            Treatment of Certain Refunds . If any party 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 (including by the payment of additional amounts pursuant to this Section 5 ), 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 5 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 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(f) , in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this Section 5.03(f) 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 with respect to such Tax had never been paid. This Section 5.03(f) 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.

(g)          Mitigation Obligations . If Borrower is 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 Borrower) use commercially reasonable efforts to designate a different lending office for funding or booking its 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. Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment and delegation.

SECTION 6

CONDITIONS PRECEDENT

6.01 The First Borrowing. The first Borrowing was made conditional upon the following conditions precedent that were satisfied or waived in writing by the Lenders:

(a)           Borrowing Date . The first Borrowing was made on June 14, 2016 and remains outstanding as of the date hereof.

(b)          Amount of First Borrowing . The amount of such Borrowing shall equal $20,000,000.

(c)           Terms of Material Agreements, Etc . Lenders shall be reasonably satisfied with the terms and conditions of all of the Obligors’ Material Agreements.

(d)           No Law Restraining Transactions . No applicable law or regulation shall restrain, prevent or, in the reasonable judgment of the Lenders, impose materially adverse conditions upon the Transactions.

(e)           Payment of Fees . Lenders shall be satisfied with the arrangements to deduct the fees set forth in the Fee Letter (including without limitation the upfront financing fee required pursuant to the Fee Letter) from the proceeds advanced.

(f)           Lien Searches . (i) Lenders shall be satisfied with Lien searches regarding Borrower and the Subsidiary Guarantors (other than the English Obligors or a Subsidiary Guarantor incorporated or organized in Germany) made within:

(A)         five (5) Business Days prior to such Borrowing in the case of the Borrower; and

(B)          fifteen (15) days prior to such Borrowing in the case of each Obligor organized in the United States of America or any state or political subdivision thereof; and

(ii)          Lenders shall be satisfied with an excerpt from the Debt Enforcement Registry in respect of each Obligor incorporated in Switzerland or any state or political subdivison thereof, dated no less than 30 days prior to such Borrowing; and

(iii)         Lenders shall be satisfied with searches regarding the English Obligors made on the date of this Agreement.

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

(i)            License Agreement . A duly executed license agreement in form and substance satisfactory to the Administrative Agent between Durata Therapeutics International B.V. and Correvio International Sárl relating to Dalbavancin.

(ii)           Fee Letter . The Fee Letter duly executed and delivered by Borrower and Administrative Agent.

(iii)          Security Documents .

(A)         The Security Documents (other than the Landlord Consent), duly executed and delivered by each of the Obligors.

(B)          (1) Each of the Short-Form IP Security Agreements, duly executed and delivered by the applicable Obligor, and (2) such Intellectual Property security agreements, duly executed and delivered by the applicable Obligor, as the Lenders may require with respect to foreign Intellectual Property.

(C)         [Intentionally Deleted.].

(D)         [Intentionally Deleted.].

(E)          Evidence of filing of UCC-1 financing statements, PPSA financing statements or similar registrations, if applicable, against each Obligor (other than the English Obligors, an Obligor incorporated or organized in Germany or with respect to registrations noted on Schedule 8.17 ) in its jurisdiction of formation or incorporation, the jurisdictions in which its chief executive office and registered office are located and/or the jurisdiction where it has assets or carries on business, as the case may be.

(F)          [Intentionally Deleted.]

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