DIP LOAN AND SECURITY AGREEMENT By and Between BIORESTORATICE THERAPIES, INC., as Borrower And PHOENIX CELL GROUP HOLDINGS, LLC, as Lender Dated: March 19, 2020 TABLE OF CONTENTS

“Default Rate” shall have the meaning given such term in Section 3.2 hereof.

New Money DIP Loan. Provided all conditions in Section 8 are satisfied, Lender agrees, subject to the terms and conditions hereinafter set forth, to advance to Borrower up to One Million Four Hundred Twenty-Four Thousand and Two Hundred Seventy-Three Dollars ($1,424,273.37) (the “New Money DIP Loan”). Borrower's obligation to repay the Loan (including, for the avoidance of doubt, the Existing Loans) shall be evidenced by that certain promissory note made and issued by Borrower in favor of Lender, substantially in the form attached hereto as Exhibit A (the “Note”). The maximum Principal Balance (as defined below) of the Loan and the amount of the Note is $2,775,628.12.

Disbursement at Closing. Lender shall disburse Seven Hundred Fifty Thousand Dollars ($750,000.00) of the New Money DIP Loan proceeds at the Closing (the “Closing Disbursement”) into an account for the benefit of Borrower (the “Funding Account”).

Advances of the Remaining New Money DIP Loan. The remainder of the New Money DIP Loan (“Remaining New Money DIP Loan”) shall be in the form of multiple advances (each, an “Advance” and all Advances, collectively, the “Advances”), as may be made from time to time as follows:

Each Advance shall be in the minimum sum of at least $60,000.00 and in denominations of $60,000.00; provided that if the difference between the amount remaining at the time of the Advance of the Remaining New Money DIP Loan is less than $60,000.00, an Advance may be made for the amount of such difference.

To request an Advance, Borrower shall notify Lender by delivering to Lender an executed advance request in the form attached to the Note as Exhibit A thereto (an “Advance Request”) at the Lender’s address as set forth in this Loan Agreement or by electronic mail sent to Lender at his email address set forth in this Loan Agreement in portable document format (PDF), identifying the amount of the requested Advance, by not later than two (2) Business Days before the Business Day that the Advance is to be funded by the Lender. Upon receipt of an Advance Request, the Lender shall, subject to the terms and conditions of the Note and this Loan Agreement, reasonably promptly disburse the amount requested in such Advance Request on the date set forth by Borrower in such Advance Request into the Funding Account; provided, that the Lender shall not be obligated to disburse any Advances in respect of an Advance Request if (i) an Event of Default shall have occurred as of such time (or would occur as the result of making such Advance), or (b) making such Advance would, in the Lender’s reasonable discretion, violate any provision of the Note, this Loan Agreement, any Bankruptcy Court Order or applicable law.

Contemporaneously with the disbursement of each Advance, the Lender shall provide a statement of account to the Company by electronic mail at the Company’s address as set forth in the Loan Agreement, which statement shall include the current Principal Balance (after giving effect to the requested Advance) together with any interest or other fees accrued and payable thereunder.

At no time will the Company request any Advances if the requested Advances would cause the outstanding Principal Balance to exceed the Maximum Principal Balance.

Use of Proceeds. Withdrawals from the Funding Accounts shall be used to fund the DIP Budget and used only for the following purposes, subject to the Bankruptcy Court Order: (a) working capital and general corporate purposes of Borrower in accordance with the DIP Budget, which for the avoidance  of doubt, shall include the purchase of a customary director’s and officer’s liability insurance tail policy in amounts specified in the DIP Budget, (b) United States Trustee fees, (c) Bankruptcy Court approved professional fees and other administrative expenses arising in the Chapter 11 Case, in accordance with the DIP Budget, (d) costs related to the Sale in accordance with the DIP Budget, and (e) interest, fees, costs and expenses incurred in connection with the DIP Loan Facility (including professional fees) due under this DIP Loan Facility and the Note, and expenses incurred by the DIP Lender as provided by this DIP Loan Facility and the Note (in each case under this subsection, (e), whether or not such amounts are reflected in the DIP Budget); provided, however, that nothing herein shall be construed to impair the ability of Lender or any other party to object to the fees, expenses, reimbursement or compensation described above.

Conditions to Withdrawal from Funding Account.  Each withdrawal by Borrower from the Funding Account shall be conditioned upon (i) the accuracy in all material respects of all representations and warranties contained in this Loan Agreement, (ii) there being no default or Event of Default in existence at the time of, or after giving effect to, such withdrawal (including, but not limited to, with respect to the DIP Budget), and (iii) substantial compliance by the Borrower of all material orders of the Bankruptcy Court. Further, the use of cash and the proceeds under the DIP Facility shall be consistent with projected line items as reflected in the DIP Budget as of the time of such use of proceeds or cash, as applicable, subject to Permitted Variances.

Closing. The closing hereunder will take place at the offices of Ropes & Gray LLP, 1211 Avenue of the Americas, New York, NY 10036, or by telephone if the Parties so agree, upon the satisfaction of the Conditions Precedent to Closing set forth in Section 8 herein, within no more than twenty-four (24) hours of the entry of an Interim Financing Order by the Bankruptcy Court approving the DIP Loan Facility, unless otherwise extended in writing by Lender and Borrower (the “Closing Date”).

Rollup of the Existing Loans.

  Acknowledgement of the Validity and Amount of Lender’s Existing Loans. Borrower acknowledges and agrees that (i) each of the Existing Loans is a valid and enforceable obligation of Borrower to Lender without defense, offset or counterclaim of any kind and (ii) as of March 6, 2020, Borrower is indebted to Lender as evidenced by the Existing Loans in the amount aggregating not less than $1,351,354.75.  Lender and Borrower agree that, at the Closing (a) the Existing Loans shall be converted hereunder into a term loan facility comprised of the aggregate amount of the Existing Loans plus accrued interest and fees due thereunder, and that such amounts, collectively with the New Money DIP Loan, shall constitute the Loan made hereunder (such transactions, the “Rollup”); and (b) that the maturity date of each of the Existing Loans is hereby extended until the Maturity Date set forth below, unless accelerated by an Event of Default or otherwise as described herein.

Balance of the Loan; Cancellation of Previously-Issued Promissory Notes.  Borrower and Lender hereby agree that, at the Closing and in connection with the Rollup:  (i) the principal balance of the Existing Loans, together with any and all accrued interest and fees due and payable thereunder, shall be added to the principal amount of the New Money DIP Loan and evidenced by the Note; (ii) all existing promissory notes or other evidence of indebtedness in respect of the Existing Loans shall be marked cancelled, with the Note evidencing all amounts due and payable under the Loan and this Loan Agreement (provided, for the avoidance of doubt, that all of the Existing Liens and other security shall remain in full force and effect as provided in Section 5 hereof); (iii) that any rights and obligations under any cancelled promissory notes or other evidence of indebtedness described by clause (ii) shall, from and after the Closing, be governed by this Loan Agreement and the Note; and (iv) that, for the avoidance of doubt, though the Lender shall only disburse funds in respect of the New Money DIP Loan at the Closing as described by Section 2.2, the Borrower’s obligations under this Loan Agreement and the Note shall reflect the aggregate amount of the Loan (including the Existing Loans and the New Money DIP Loan) as described in this Section 2.5.2 and be governed by this DIP Loan Facility.

Material Component of New Money DIP Loan.  Borrower hereby acknowledges and agrees that the Rollup is a material inducement to Lender’s furnishing of the New Money DIP Loan and performance of its obligations under this DIP Loan Facility, and that the Lender’s willingness to provide the New Money DIP Loan is contingent upon the consummation of the Rollup in connection therewith.

        All property of any Grantor held by any Secured Party, including all property of every description, in the custody of or in transit to such Secured Party for any purpose, including safekeeping, collection or pledge, for the account of any Grantor or as to which any Grantor may have any right or power, including but not limited to cash;

Events of Default. The occurrence of any one or more of  the  following events shall constitute an Event or Events of Default hereunder:

The Company fails to commence the Chapter 11 Case (the “Filing Date”) within 1 Business Day of the execution of this Loan Agreement or the Note;

The Company fails to file with the Bankruptcy Court one or more motions, each in form and substance reasonably acceptable to the Lender seeking approval of the stalking horse asset purchase agreement, dated as of the date hereof, between Borrower and Lender (or an affiliate thereof) (the “Stalking Horse Purchase Agreement”), subject only to higher and/or otherwise better bids through a Court-approved sale process (the “Sale Motion”), and (b) bidding procedures and the Break-Up Fee (as defined in the Stalking Horse Purchase Agreement) (the “Bid Procedures Motion”), within 3 Business Days following the Filing Date;

The Company fails to obtain entry of a Bankruptcy Court order, in form and substance reasonably satisfactory to the DIP Lender approving the Sale Motion and the Bid Procedures Motion (the “Bid Procedures Order”) within 14 days of the Filing Date;

The Company fails to hold an auction for the sale of substantially all of Borrower’s assets pursuant to the Stalking Horse Purchase Agreement (such auction process, the “Auction” and the consummation such transactions, the “Sale”) within 30 days after the entry of the Bid Procedures Order;

If the DIP Lender is the successful bidder at the Auction, the Company fails to obtain entry of a Bankruptcy Court order, in form and substance reasonably satisfactory to the DIP Lender approving (a) the Stalking Horse Purchase Agreement, including any related credit bid of the DIP Lender’s claims under the Loan Agreement and (b) the sale of substantially all the Borrower’s assets pursuant to sections 363(f) and 363(m) of the Bankruptcy Code (free and clear of all liens, claims, interests and encumbrances) (the “DIP Lender Sale Approval Order”) within 3 Business Days of the conclusion of the Auction;

If a party other than the DIP Lender is the successful bidder at the Auction, the Company fails to obtain entry of a Bankruptcy Court order, in form and substance reasonably satisfactory to the DIP Lender approving (a) the applicable purchase agreement in an amount sufficient to pay in cash all outstanding obligations of Borrower under the DIP Loan Facility (including interest, fees, and expenses) and the Stalking Horse Purchase Agreement (including any expense reimbursement or break-up fees) and (b) the sale of substantially all the Borrower’s assets pursuant to sections 363(f) and 363(m) of the Bankruptcy Code (free and clear of all liens, claims, interests and encumbrances) (the “Third- Party Sale Approval Order”, and together with the DIP Lender Sale Approval Order, the “Sale Approval Order”) within 3 Business Days of the conclusion of the Auction;

The Company fails to close the Sale within 10 days of the entry of Sale Approval Order, subject to the satisfaction of the conditions precedent to closing set forth in the winning bidder’s Bankruptcy Court approved asset purchase agreement;

The Company’s Budget varies in excess of Permitted Variances as set forth in the DIP Budget;

A trustee is appointed, the Company’s Chapter 11 Case is dismissed, or the Chapter 11 Case is converted to a case under Chapter 7 without the consent of the DIP Lender;

Any Person or entity is granted relief from stay with respect to any portion of the Collateral securing the DIP Loan Facility;

An order of the Bankruptcy Court in the Company’s Chapter 11 case is entered or modified in a manner materially adverse to the DIP Lender; a motion, pleading or proceeding is filed by the Company that could reasonably be expected to result in a material impairment of the rights, remedies or interests of the DIP Lender; or there is a determination by the Bankruptcy Court with respect to any motion, pleading or proceeding brought by another party which results in any  material impairment of the rights, remedies or interests of the DIP Lender;

The Company files a motion or proceeding, takes any action or files any plan of reorganization or disclosure statement attendant thereto by Borrower: (i) to obtain additional financing under Section 364(c) or (d) of the Bankruptcy Code not otherwise permitted under the DIP Loan Facility; (ii) to grant any lien upon or affecting any Collateral; or (iii) except as provided in the Interim Order and/or the Final Order, as the case may be, to use cash collateral under Section 363(c) of the Bankruptcy Code without the prior written consent of the DIP Lender, unless such additional funding, whether sought by motion or plan of reorganization, provides for both (i) termination of the commitments and (ii) repayment in full in cash of all of the obligations under the DIP Facility (or other treatment of such obligations acceptable to the DIP Lender) on or before the effective date of such plan(s);

Except as otherwise provided for in the DIP Budget, as applicable, the Company pays or applies for authority to pay pre-petition indebtedness or payables without the prior consent of the DIP Lender;

An order is entered by the Bankruptcy Court amending, supplementing, staying, vacating, rescinding or otherwise modifying any documents implementing the DIP Loan Facility or the Interim Order or the Final Order, or any provision thereof ceases to be effective or is contested by any Loan Party, without the written consent of the DIP Lender;

An order is entered confirming a plan(s) of reorganization that, unless otherwise approved by the DIP Lender, does not provide for both (i) termination of the commitments and (ii) repayment in full in cash of all of the obligations under the DIP Loan Facility (or other treatment of such obligations acceptable to the DIP Lender) on or before the effective date of such plan(s);

An order is entered by the Bankruptcy Court granting relief from or modifying the automatic stay for any creditor or party (other than the DIP Lender) holding a security interest to execute upon, foreclose (or grant a deed in lieu of foreclosure or the like), take possession of, exercise set-off or any similar remedy against, or otherwise enforce a lien on any Collateral or any assets of the Company;

The Company objects or supports an objection, whether in a writing or otherwise, to the DIP Lender’s right to credit bid its claim under the DIP Loan Facility in the Sale.

The Company fails to pay any amount of principal or interest on the Notes, or any fee or other sums payable hereunder, or any other Lender Indebtedness on the date on which such payment is due, at the stated maturity or due date thereof, or by reason of any requirement for the prepayment thereof, by acceleration or otherwise; and

Delay or Omission Not Waiver. Neither the failure nor any delay on the part of Lender to exercise any right, remedy, power or privilege under the Loan Documents upon the occurrence of any Event of Default or otherwise shall operate as a waiver thereof or impair any such right, remedy, power or privilege. No waiver of any Event of Default shall affect any later Event of Default or shall impair any rights of Lender. No single, partial or full exercise of any rights, remedies, powers and privileges by Lender shall preclude further or other exercise thereof. No course of dealing between Lender and Borrower shall operate as or be deemed to constitute a waiver of Lender's rights under the Loan Documents or affect the duties or obligations of Borrower.

Remedies Cumulative; Consents. The rights, remedies, powers and privileges provided for herein shall not be deemed exclusive, but shall be cumulative and shall be in addition to all other rights, remedies, powers and privileges in Lender's favor at law or in equity. Lender’s rights, powers and remedies may be pursued singularly, concurrently or otherwise at such time and in such order as Lender may determine in Lender’s sole discretion. Whenever Lender's consent or approval is required, such consent or approval shall be at the sole and absolute discretion of Lender.

all losses, costs and expenses in connection with the enforcement, protection and preservation of Lender's rights or remedies under the Loan Documents, or any other Loan Agreement relating to any Lender Indebtedness, or in connection with legal advice relating to the rights or responsibilities of Lender (including without limitation court costs, reasonable attorney's fees and expenses of accountants and appraisers);

all losses, costs and expenses in connection with Lender’s defense of any action or proceeding commenced or threatened by a third party against Lender’s rights in and to the Collateral, provided, however, that if such action or proceeding is commenced by the Creditors Committee, if any, or a Trustee appointed by the Court in the Chapter 11 Case, and Lender is unsuccessful in defending the same, the Borrower shall have no obligation to pay any resulting losses, costs and expenses in or from such action or proceeding; and

any and all stamp and other taxes payable or determined to be payable in connection with the execution and delivery of the Loan Documents, and all liabilities to which Lender may become subject as the result of delay in paying or omission to pay such taxes.

Time is of the Essence. Time is of the essence in Borrower's performance of its obligations under the Loan Documents.

Sale or Other Disposition of Collateral. The sale, lease or other disposition of the Collateral, or any part thereof, by Lender after an Event of Default may be for cash, credit or any combination thereof, and Lender may purchase all or any part of the Collateral at public or, if permitted by law, private sale, and in lieu of actual payment of such purchase price, may set-off the amount of such purchase price against Lender Indebtedness then owing. Any sales of the Collateral may be adjourned from time to time with or without notice. Lender may cause the Collateral to remain on Borrower's premises or otherwise or  to be removed and stored at premises owned by other persons, at Borrower's expense, pending sale or other disposition of the Collateral. Borrower, at Lender's request, shall assemble the Collateral consisting of inventory and tangible assets and make such assets available to Lender at a place to be designated by Lender. Lender shall have the right to conduct such sales on Borrower's premises, at Borrower's expense, or elsewhere, on such occasion or occasions as Lender may see fit. Any notice required to be given by Lender of a sale, lease or other disposition or other intended action by Lender with respect to any of the Collateral which is deposited in the United States mail, postage prepaid and duly addressed to Borrower at the address specified in Section 10.1 below, at least ten (10) business days prior to such proposed action, shall constitute fair and reasonable notice to Borrower of any such action. The net proceeds realized by Lender upon any such sale or other disposition, after deduction for the expenses of retaking, holding, storing, transporting, preparing for sale, selling or otherwise disposing of the Collateral incurred by Lender in connection therewith and all other costs and expenses related thereto including attorney fees, shall be applied in such order as Lender, in its sole discretion, elects, toward satisfaction of Lender Indebtedness. Lender shall account to Borrower for any surplus realized upon such sale or other disposition, and Borrower shall remain liable for any deficiency. The commencement of any action, legal or equitable, or the rendering of any judgment or decree for any deficiency shall not affect Lender's security interest in the Collateral. Borrower agrees that Lender has no obligation to preserve rights to the Collateral against any other parties. Subject to the approval of the Bankruptcy Court, Lender is hereby granted a license or other right to use, after an Event of Default, without charge, Borrower's labels, general intangibles, intellectual property, equipment, real estate, patents, copyrights, rights of use of any name, trade secrets, trade names, domain names, trademarks, service marks and advertising matter, or any property of a similar nature, as it pertains to the Collateral, in completing production of, advertising for sale and selling any inventory or other Collateral and Borrower's rights under all contracts, licenses, approvals, permits, leases and franchise Loan Agreements shall inure to Lender's benefit. Lender shall be under no obligation to marshal any assets in favor of Borrower or any other party or against or in payment of any or all of Lender Indebtedness.

Set-Off. Without limiting the rights of Lender under applicable law, Lender has and may exercise a right of set-off, a lien against and a security interest in all property of Borrower now or at any time in Lender's possession in any capacity whatsoever, including but not limited to any balance of any deposit, trust or agency account, or any other bank account with Lender, as security for all Lender Indebtedness. At any time and from time to time following the occurrence of an Event of Default, or an event which with the giving of notice or passage of time or both would constitute an Event of Default, Lender may without notice or demand, 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 Lender to or for the credit of Borrower against any or all of Lender Indebtedness and Borrower's obligations under the Loan Documents.

Turnover of Property Held by Lender. Borrower irrevocably authorizes any Affiliate of Lender, upon and following the occurrence of an Event of Default, at the request of Lender and without further notice, to turn over to Lender any property of Borrower held by such Affiliate, including without limitation, funds and securities for such Borrower's account and to debit, for the benefit of Lender, any deposit account maintained by Borrower with such Affiliate (even if such deposit account is not then due or there results a loss or reduction of interest or the imposition of a penalty in accordance with law applicable to the early withdrawal of time deposits), in the amount requested by Lender up to the amount of Lender Indebtedness, and to pay or transfer such amount or property to Lender for application to Lender Indebtedness.

Waivers. In connection with any proceedings under the Loan Documents, including without limitation any action by Lender in replevin, foreclosure or other court process or in connection with any other action related to the Loan Documents or the transactions contemplated hereunder, Borrower waives:

Forbearance. Lender may release, compromise, forbear with respect

Limitation on Liability. Borrower shall be responsible for and  Lender, solely in its capacity as Lender, is hereby released from any claim or liability in connection with:

Brokers. The transaction contemplated hereunder was brought about and entered into by Lender and Borrower acting as principals and without any brokers, agents or finders being the effective procuring cause hereof. Borrower represents to Lender that Borrower has not committed Lender to the payment of any brokerage fee or commission in connection with this transaction. If any such claim is made against Lender by any broker, finder or agent or any other Person, Borrower agrees to indemnify, defend and hold Lender harmless against any such claim, at Borrower's own cost and expense, including Lender's attorneys' fees. Borrower further agrees that until any such claim or demand is adjudicated in Lender's favor, the amount claimed and/or demanded shall be deemed part of Lender Indebtedness secured by the Collateral.

Use of Lender's Name. Borrower shall not use Lender's name or the name of any of Lender's Affiliates in connection with any of its business or activities except as may otherwise be required by the rules and regulations of the Securities and Exchange Commission or any like regulatory body and except as may be required in its dealings with any governmental agency.

No Joint Venture. Nothing contained herein is intended to permit or authorize Borrower to make any contract on behalf of Lender, nor shall this Loan Agreement be construed as creating a partnership, joint venture or making Lender an investor in Borrower.

Survival. All covenants, Loan Agreements, representations and warranties made by Borrower in the Loan Documents or made by or on its behalf in connection with the transactions contemplated herein shall be true at all times this Loan Agreement is in effect and shall survive the execution and delivery of the Loan Documents, any investigation at any time made by Lender or on its behalf and the making by Lender of the loans or advances to Borrower. All statements contained in any certificate, statement or other document delivered by or on behalf of Borrower pursuant hereto or in connection with the transactions contemplated hereunder shall be deemed representations and warranties by Borrower.

No Assignment by Borrower. Borrower may not assign any of its rights hereunder without the prior written consent of Lender and any such assignment shall be void and of no force or effect. Lender shall not be required to lend hereunder except to Borrower as it presently exists.

Assignment or Sale by Lender. Lender may sell, assign or participate all or a portion of its interest in the Loan Documents, and, in connection therewith, may make available to any prospective purchaser, assignee or participant any information relative to Borrower in its possession.

Binding Effect. This Loan Agreement and all rights and powers granted hereby will bind and inure to the benefit of the parties hereto and their respective permitted successors and assigns.

Severability. The provisions of this Loan Agreement and all other Loan Documents are deemed to be severable, and the invalidity or unenforceability of any provision shall not affect or impair the remaining provisions which shall continue in full force and effect.

No Third Party Beneficiaries. The rights and benefits of this Loan Agreement and the Loan Documents shall not inure to the benefit of any third party.

Modifications. No modification of this Loan Agreement or any of the Loan Documents shall be binding or enforceable unless in writing and signed by or on behalf of the party against whom enforcement is sought. No modification shall constitute, or be constitute to constitute, a novation of this Loan Agreement, and all terms contained herein not expressly modified in such writing shall continue in full force and effect.

Holidays. If the day provided herein for the payment of any amount or the taking of any action falls on a Saturday, Sunday or public holiday at the place for payment or action, then the due date for such payment or action will be the next succeeding Business Day.

Law Governing. This Loan Agreement has been made, executed and delivered in the State of New York and will be construed in accordance with and governed by  the laws of such State without regard to conflict of law principles.

Headings. The headings of the Articles, Sections, paragraphs and clauses of this Loan Agreement are inserted for convenience only and shall not be deemed to constitute a part of this Loan Agreement.

Counterparts. This Loan Agreement may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument, and any of the parties hereto may execute this Loan Agreement by signing any such counterpart.

The liens and security interests referred to in this Loan Agreement, any Security Document and any other Loan Documents with respect to Borrower shall be deemed valid and perfected by entry of the Interim Financing Order and/or Final Financing Order, subject only to the terms and conditions of the Financing Orders.

The liens, security interests, lien priorities, administrative priorities and other rights and remedies granted to Lender, pursuant to this Loan Agreement, the other Loan Documents and the Financing Orders (specifically including but not limited to the existence, perfection and priority of the liens and security interests provided herein and therein, and the administrative priority provided herein and therein) shall not be modified, altered or impaired in any manner by any other financing or extension of credit or incurrence of debt by Borrower (pursuant to Section 364 of the Bankruptcy Code or otherwise), or by any dismissal or conversion of the Chapter 11 Cases, or by any other act or omission whatever. Without limitation, notwithstanding any such order, financing, extension, incurrence, dismissal, conversion, act or omission:

except for the amounts included in the Carve-Out (however, it is agreed and understood that the Carve-Out shall not reduce the full amount that is due and owing to Lender under this Loan Agreement);

the liens and security interests in favor of Lender set forth herein, in the Security Documents and in the other Loan Documents, shall constitute valid and perfected first priority liens and security interests and shall be prior to all other liens and interests, now existing or hereafter arising, in favor of any other creditor or any other Person whatsoever, and

the security interests and liens upon the Collateral in favor of Lender as set forth in this Loan Agreement, the Security Documents and in the other Loan Documents shall constitute valid and perfected first priority security interests, without the necessity that Lender file financing statements or otherwise perfect its liens and security interests in the Collateral under applicable non-bankruptcy law.

The security interests and other liens of Lender hereunder and under the other Loan Documents shall be subordinate to the payment of the following: (i)(x) allowed and unpaid fees pursuant to Section 1930 of Title 28 of the United States Code and to the Clerk of the Bankruptcy Court and any fees payable to the Office of the United States Trustee, (ii) allowed and unpaid claims of professionals whose retention is approved by the Bankruptcy Court during the Chapter 11 Cases pursuant to Sections 327 and 1103 of the Bankruptcy Code for unpaid fees and expenses that are approved by order of the Bankruptcy Court pursuant to Sections 326, 328, 330 or 331 of the Bankruptcy Code; provided, that, (A) the Carve-Out shall not include, apply to, or be available for any fees or expenses incurred by any party, including Borrower, any committee or any professional, in connection with (1) the initiation or prosecution of any claims or defenses against Lender, or preventing, hindering or delaying the assertion of enforcement of any lien, claim, right or security interest or realization upon any Collateral by Lender, (2) a request to use cash collateral (as such term is defined in Section 363 of the Bankruptcy Code) without the prior written consent of Lender, (3) a request, without the prior written consent of Lender, for authorization to obtain debtor-in-possession financing or other financial accommodations pursuant to Section 364(c) or (d) of the Bankruptcy Code that does not indefeasibly repay in full in cash Lender Indebtedness on terms and conditions acceptable to Lender or (4) any act which has the effect of materially or adversely modifying or compromising the rights and remedies of Lender as set forth herein, in the other Loan Documents and in the Financing Orders, or which results in the occurrence of an Event of Default, and (B) in the event of any inconsistency in the definition of Carve-Out between the provisions of this Loan Agreement and any Financing Order, the provisions of this Loan Agreement shall govern unless Lender consents to such Financing Order. The foregoing shall not be construed as a consent to the allowance of any fees and expenses referred to above and shall not affect the right of Lender to object to the allowance and payment of such amounts. Further, it is agreed and understood that (i) the Carve-Out shall not reduce or affect the full amount that is due and owing to Lender under this Loan Agreement, and (ii) nothing herein shall be construed to require Lender, in the event that Borrower’s assets are insufficient to pay any portion of the Carve-Out, to infuse any money in excess of any unfunded amount of the DIP Budget as approved by a Financing Order to pay any portion of the Carve-Out.

Waiver of Right to Trial by Jury. BORROWER AND LENDER WAIVE ANY RIGHT TO TRIAL BY JURY ON ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (a) ARISING UNDER ANY OF THE LOAN DOCUMENTS OR (b) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF BORROWER OR LENDER WITH RESPECT TO ANY OF THE LOAN DOCUMENTS OR THE TRANSACTIONS RELATED HERETO OR THERETO, IN EACH CASE WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE. BORROWER AND LENDER AGREE AND CONSENT THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS LOAN AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF BORROWER AND LENDER TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY. BORROWER ACKNOWLEDGES THAT IT HAS HAD THE OPPORTUNITY TO CONSULT WITH COUNSEL REGARDING THIS SECTION, THAT IT FULLY UNDERSTANDS ITS TERMS, CONTENT AND EFFECT, AND THAT IT VOLUNTARILY AND KNOWINGLY AGREES TO THE TERMS OF THIS SECTION.