Supplement to the Loan and Security Agreement, dated August 6, 2021, between Delcath Systems, Inc. as borrower, and Avenue Venture Opportunities Fund, L.P., as lender

Exhibit 10.2

SUPPLEMENT

to the

Loan and Security Agreement

dated as of August 6, 2021

between

DELCATH SYSTEMS, INC. (“Borrower”)

and

Avenue Venture Opportunities Fund, L.P. (“Lender”)

This is a Supplement identified in the document entitled Loan and Security Agreement, dated as of August 6, 2021 (as amended, restated, supplemented and modified from time to time, the “Loan and Security Agreement”), by and between Borrower and Lender. All capitalized terms used in this Supplement and not otherwise defined in this Supplement have the meanings ascribed to them in Article 10 of the Loan and Security Agreement, which is incorporated in its entirety into this Supplement. In the event of any inconsistency between the provisions of the Loan and Security Agreement and this Supplement, this Supplement is controlling.

In addition to the provisions of the Loan and Security Agreement, the parties agree as follows:

Part 1 - Additional Definitions:

“Amortization Period” means the period commencing on the first day of the first full calendar month following the Interest-only Period and continuing until the Maturity Date.

“Blocked Account” is defined in Part 2, Section 1(b) hereof.

“Commitment” means, subject to the terms and conditions set forth in the Loan and Security Agreement and this Supplement, Lender’s commitment to make Growth Capital Loans to Borrower in the original principal amount of Fifteen Million Dollars ($15,000,000.00) (“Tranche 1”); provided that, subject to the conditions in Section 1(d) of Part 2 hereof, from October 1, 2022 through December 31, 2022, Lender shall make available to Borrower an additional original principal amount of Five Million Dollars (“Tranche 2”).

“Designated Rate” means, for each Growth Capital Loan, a variable rate of interest per annum equal to the sum of (i) the greater of (A) the Prime Rate and (B) three and one-quarters percent (3.25%), plus (ii) seven and seven-tenths percent (7.70%). Changes to the Designated Rate based on changes to the Prime Rate shall be effective as of the next scheduled interest payment date immediately following such change.

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

“Final Payment” means a payment (in addition to and not a substitution for the regular monthly payments of principal plus accrued interest) equal to four and one-quarter percent (4.25%) of the funded amount of Tranche 1 and Tranche 2.

“Growth Capital Loan” means any Loan requested by Borrower and funded by Lender under its Commitment for general corporate purposes of Borrower.

“HEPZATO KIT” means Borrower’s melphalan hydrochloride for injection/hepatic delivery system, a drug/device combination product.

“Interest-only Period” means the period commencing on the Closing Date and continuing until the fifteenth (15^th) month anniversary of the Closing Date; provided, however, that such period shall be extended for three (3) months (the “First Interest-only Period Extension”) (i.e., a total Interest-only Period of eighteen (18) months from

the Closing Date) if as of the last day of the Interest-only Period then in effect Borrower has (a) achieved the Performance Milestone and (b) submitted the HEPZATO KIT NDA; provided, further however, that such period shall be extended for an additional six (6) months (i.e., a total Interest-only Period of twenty-four (24) months from the Closing Date) if as of the last day of the Interest-only Period then in effect, Borrower has (i) achieved the First Interest-only Period Extension, (ii) received FDA approval for HEPZATO KIT and (iii) received net proceeds (including in connection with the Performance Milestone) of at least Forty Million Dollars ($40,000,000.00) from the sale and issuance of Borrower’s equity securities after the Closing Date; in each case of subject to written evidence of the same, in form and content reasonably acceptable to Lender; provided, further, however, that the Interest-only Period shall not exceed twenty-four (24) months.

“Loan” or “Loans” mean, as the context may require, individually a Growth Capital Loan, and collectively, the Growth Capital Loans.

“Loan Commencement Date” means, with respect to each Growth Capital Loan: (a) the first day of the first full calendar month following the Borrowing Date of such Loan if such Borrowing Date is not the first day of a month; or (b) the same day as the Borrowing Date if the Borrowing Date is the first day of a month.

“Maturity Date” means August 1, 2024.

“NDA” means a New Drug Application submitted to the FDA.

“Performance Milestone” means (1) Borrower (x) demonstrate positive FOCUS trial efficacy per the trial’s predefined Statistical Analysis Plan (SAP), specifically the Overall Response Rate exceeds the prespecified threshold for success defined in the SAP by a statistically significant amount; and (y) based on data contained within the FOCUS trial database and appropriate for use with the FDA, safety and tolerability among FOCUS trial participants is within the range of currently approved and commonly used cytotoxic chemotherapeutic agents; and (2) receipt of net proceeds of at least Twenty Million Dollars ($20,000,000.00) from the sale and issuance of Borrower’s equity securities after the Closing Date (the “Initial Equity Raise Requirement”); with respect to (1) and (2), written evidence of which is provided to, and reviewed and approved by, Lender.

“Prepayment Fee” means, with respect to any prepayment of the Loans:

(i)    if the prepayment occurs during the period commencing on the Closing Date and ending on (but including) the last day of the Interest-only Period, an amount equal to the principal amount of such Loans prepaid multiplied by three percent (3.00%); and

(ii)    if the prepayment occurs during the period commencing on the day immediately following the Interest-only Period and ending on (but excluding) the Maturity Date, an amount equal to the principal amount of the Loans prepaid multiplied by one percent (1.00%).

Notwithstanding the foregoing or any other term herein or in any other Loan Document to the contrary, no Prepayment Fee shall be due in connection with (x) any mandatory prepayment made in accordance with Part 2, Section 1(c) hereof, (y) in respect of any application of insurance proceeds to the Obligations or (z) with respect to Tranche 2 only, any voluntary prepayment following Lender’s Investment Committee declining to approve the Funding of a Tranche 2 advance requested by Borrower in accordance with the term herein and in the other Loan Documents.

“Prime Rate” is the rate of interest per annum from time to time published in the money rates section of The Wall Street Journal or any successor publication thereto as the “prime rate” then in effect; provided that, in the event such rate of interest is less than zero, such rate shall be deemed to be zero for purposes of this Supplement; and provided further that if such rate of interest, as set forth from time to time in the money rates section of The Wall Street Journal, becomes unavailable for any reason as determined by Lender, the “Prime Rate” shall mean the rate of interest per annum announced by Silicon Valley Bank as its prime rate in effect at its principal office in the State of California (such announced Prime Rate not being intended to be the lowest rate of interest charged by such institution in connection with extensions of credit to debtors); provided that, in the event such rate of interest is less than zero, such rate shall be deemed to be zero for purposes of this Supplement.

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“SEC” means Securities and Exchange Commission or other equivalent governmental or regulatory authority having similar authority.

“Termination Date” means the earlier of: (i) the date Lender may terminate making Growth Capital Loans or extending other credit pursuant to the rights of Lender under Article 7 of the Loan and Security Agreement; and (ii) December 31, 2022.

“Threshold Amount” means Two Hundred Fifty Thousand Dollars ($250,000.00).

“Warrant” is defined in Part 2, Section 3(a) hereof.

Part 2 - Additional Covenants and Conditions:

1.    Growth Capital Loan Facility.

(a)    Additional Condition(s) Precedent Regarding Growth Capital Loan Commitments. In addition to the satisfaction of all of the other applicable conditions precedent specified in Sections 4.1 and 4.2 of the Loan and Security Agreement and this Supplement, Lender shall fund the aggregate amount of Tranche 1 on the Closing Date as follows: (x) Eleven Million Dollars ($11,000,000.00) into Borrower’s primary, U.S.-based operating account; and (y) Four Million Dollars ($4,000,000.00) (“Tranche 1(b)”) into a U.S.-based blocked account maintained by Borrower (the “Blocked Account”); in each case of (x) and (y), subject to a control agreement in form and content reasonably acceptable to, and in favor of, Lender.

(b)    Borrower may transfer the amount in the Blocked Account to Borrower’s primary, U.S.-based operating account, which shall be subject to a control agreement in form and content reasonably acceptable to, and in favor of, Lender, upon receipt by Lender of evidence that Borrower has achieved the Performance Milestone, as determined by Lender in its sole, reasonable discretion.

(c)    Borrower shall maintain the full amount, and shall not transfer or otherwise dispose of any part, of the Tranche 1(b) Loan proceeds in the Blocked Account unless and until Borrower has achieved the Initial Equity Raise Requirement (the “Release Condition”); in the event Borrower does not achieve the Release Condition by June 30, 2022, Borrower hereby acknowledges and agrees that Lender may immediately exercise control over the Blocked Account and apply so much of the amount in such Blocked Account as is necessary to satisfy in full Tranche 1(b) as of such date.

(d)    In addition to the satisfaction of all of the other applicable conditions precedent specified in Sections 4.1 and 4.2 of the Loan and Security Agreement and this Supplement, Lender’s obligation to fund Tranche 2 of its Commitment of Growth Capital Loans is subject to receipt by Lender of evidence that the following conditions precedent have been satisfied, as determined by Lender in its sole discretion:

(i)    Borrower has made written request therefor, no later than thirty (30) days prior to the expiration of the availability of Tranche 2; and

(ii)    Lender’s Investment Committee review and approval, in its sole reasonable discretion; provided that, as of the Closing Date, Tranche 2 shall not be considered as, and is not, committed hereunder by Lender.

(e)    Minimum Funding Amount; Maximum Number of Borrowing Requests. Growth Capital Loans requested by Borrower to be made on a single Business Day shall be for a minimum aggregate, original principal amount of One Million Dollars ($1,000,000.00); provided, however, that the initial Growth Capital Loan shall be funded on the Closing Date in a minimum original principal amount of Fifteen Million Dollars ($15,000,000.00). Borrower shall not submit a Borrowing Request more frequently than once per calendar month.

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(f)    Repayment of Growth Capital Loans. Principal of, and interest on, each Growth Capital Loan shall be payable as set forth in a Note evidencing such Growth Capital Loan (substantially in the form attached hereto as Exhibit “A”), which Note shall provide substantially as follows: principal shall be fully amortized over the Amortization Period in equal, monthly principal installments plus, in each case, unpaid interest thereon at the Designated Rate, commencing after the Interest-only Period of interest-only installments at the Designated Rate. In particular, on the Borrowing Date applicable to such Growth Capital Loan, Borrower shall pay to Lender (i) if the Borrowing Date is earlier than the Loan Commencement Date, interest only at the Designated Rate, in advance, on the outstanding principal balance of the Growth Capital Loan for the period from the Borrowing Date through the last day of the calendar month in which such Borrowing Date occurs (it being understood that this clause (i) shall not apply in the case the Borrowing Date is on the same date as the Loan Commencement Date), and (ii) the first (1st) interest-only installment at the Designated Rate, in advance, on the outstanding principal balance of the Note evidencing such Loan for the ensuing month. Commencing on the first day of the second full month after the Borrowing Date and continuing on the first day of each month during the Interest-only Period thereafter, Borrower shall pay to Lender interest only at the Designated Rate, in advance, on the outstanding principal balance of the Loan evidenced by such Note for the ensuing month. Commencing on the first day of the first full month after the end of the Interest-only Period, and continuing on the first day of each consecutive calendar month thereafter, Borrower shall pay to Lender equal consecutive monthly principal installments in advance in an amount sufficient to fully amortize the Loan evidenced by such Note over the Amortization Period, plus interest at the Designated Rate for such month. On the Maturity Date, all principal and accrued interest then remaining unpaid and the Final Payment shall be due and payable.

2.    Prepayment. The Growth Capital Loans may be prepaid as provided in this Section 2 only. Borrower may prepay all, but not less than all, outstanding Growth Capital Loans in whole, but not in part, at any time upon no less than five (5) Business Days’ prior written notice to the Lender, by tendering to Lender a cash payment in respect of such Loans in an amount determined by Lender equal to the sum of: (i) the aggregate outstanding principal amount of such Loans; (ii) the accrued and unpaid interest on such Loans as of the date of prepayment; (iii) the Prepayment Fee; and (iv) the Final Payment; provided that, if Lender has not yet exercised its rights under Section 3(c) hereof, Borrower shall provide written notice of prepayment at least ten (10) days in advance of the proposed prepayment date and Lender shall have the option, with respect to the Conversion Option, to exercise its rights pursuant to Section 3(c) hereof by delivering written notice to Borrower at least two (2) Business Days in advance of the proposed prepayment date; provided, further, that Lender’s failure to deliver such notice shall be deemed a waiver of Lender’s rights pursuant to Section 3(c) hereof and such conversion right shall terminate.

3.    Issuance of Warrant; Conversion Right.

(a)    Warrant. As additional consideration for the making of its Commitment, Lender has earned and is entitled to receive immediately upon the execution of the Loan and Security Agreement and this Supplement, a warrant instrument issued by Borrower (the “Warrant”).

(b)    Warrant General. The Warrant shall be in form and substance reasonably satisfactory to Lender.

(c)    Conversion Right. Lender shall have the right, in its discretion, but not the obligation, at any time and from time to time, while the Loan is outstanding, to convert an amount of up to Three Million Dollars ($3,000,000.00) of the principal amount of the outstanding Growth Capital Loans (the “Conversion Option”) into Borrower’s common stock (the “Common Stock”) at a price per share equal to one hundred twenty percent (120.00%) of the Market Price set forth (and defined in clause “(1)” of the definition of such term) in the Warrant (the “Conversion Price;” the exercise of such Conversion Option, a “Conversion”); provided that the Conversion Option is subject to (i) the closing price of the shares of Common Stock as reported by Bloomberg, L.P. on the Nasdaq Stock Market for each of the seven (7) consecutive trading days immediately preceding the Conversion being greater than or equal to the Conversion Price; and (ii) the Common Stock issued in connection with any such Conversion not exceeding twenty percent (20%) of the total trading volume of the Common Stock for the twenty-two (22) consecutive trading days immediately prior to and including the effective date of such Conversion. The Conversion Option will be exercised by Lender delivering a written, signed conversion notice to Borrower in accordance with this Section 3(c) which will include (i) the date of which the conversion notice is given, (ii) a statement to the effect that the Lender is exercising the Conversion Option, (iii) the amount in respect of which the Conversion Option is being exercised

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and the number of shares issued and (iv) a date on which the allotment and issuance of the shares is to take place. Notwithstanding the foregoing the Lender’s right to exercise the Conversion Option shall be subject to the Beneficial Ownership Limitation provisions set forth in Section 4.8 of the Warrant. Within sixty (60) days from the Closing Date, Borrower will prepare and file with the SEC a registration statement on Form S-3 or, if Borrower is not then eligible to register for resale securities on Form S-3, on another appropriate form of registration statement, covering the resale of all of the shares of Common Stock issuable upon a Conversion and exercise of the Warrant for an offering to be made on a continuous basis pursuant to Rule 415(a)(1)(i). Borrower will use commercially reasonable efforts to cause the registration statement to be declared effective under the Securities Act of 1933, as amended (the “Securities Act”), as promptly as possible after the filing thereof, and will use its commercially reasonable efforts to keep such registration statement continuously effective under the Securities Act, and prepare and file prospectus supplements that includes any information previously omitted from the prospectus filed as part of the initial registration statement and pre- and post-effective amendments as necessary, until the date that all of the shares of Common Stock issuable upon a Conversion and the exercise of the Warrant have been sold thereunder or pursuant to SEC Rule 144. The Lender agrees to furnish to Borrower and provide to Borrower such information requested by Borrower in connection with the preparation of the registration statement and understands that such information will be relied upon by Borrower in connection with the preparation or amendment of the registration statement and the related prospectus and any amendments or supplements thereto.

4.    Commitment Fee. Borrower shall pay to Lender a commitment fee in the amount of one percent (1.00%) of the Fifteen Million Dollars ($15,000,000.00) Tranche 1 Commitment due and payable on the Closing Date, of which Seventy-Five Thousand Dollars ($75,000.00) has been paid by Borrower to Lender as an advance deposit prior to the date hereof. Borrower shall pay to Lender an additional commitment fee in the amount of one percent (1.00%) of the Five Million Dollars ($5,000,000.00) Tranche 2 Loan commitment amount, which shall be due and payable, if at all, on the Funding Date (or any portion) thereof. As an additional condition precedent under Section 4.1 of the Loan and Security Agreement, Lender shall have completed to its satisfaction its due diligence review of Borrower’s business and financial condition and prospects, and Lender’s Commitment shall have been approved. If this condition is not satisfied, the Seventy-Five Thousand Dollars ($75,000.00) advance deposit previously paid by Borrower shall be refunded. Except as set forth in this Section 4, the Commitment Fee is not refundable.

5.    Documentation Fee Payment. On the Closing Date, Borrower shall reimburse Lender pursuant to Section 9.8(a) of the Loan and Security Agreement for (i) its reasonable and documented attorneys’ fees, out-of-pocket costs and expenses incurred in connection with the preparation and negotiation of the Loan Documents and (ii) such Lender’s costs and filing fees related to perfection of its Liens in the Collateral in any jurisdiction in which the same is located, recording a copy of the Intellectual Property Security Agreement with the United States Patent and Trademark Office or the United States Copyright Office, as applicable, and confirming the priority of such Liens.

6.    Debits to Account for ACH Transfers. For purposes of Sections 2.2 and 5.10 of the Loan and Security Agreement, the Primary Operating Account shall be the bank account set forth in part 4 of the Disclosure Letter, unless and until such account is changed in accordance with Section 5.10 of the Loan and Security Agreement. Borrower hereby agrees that the Growth Capital Loans will be advanced to the account specified above and regularly scheduled payments of principal, interest and fees will be automatically debited from the same account. Borrower hereby confirms that the bank at which the Primary Operating Account is maintained uses that same ABA Number for incoming wires transfers to the Primary Operating Account and outgoing ACH transfers from the Primary Operating Account.

Part 3 - [Reserved]

Part 4 - Additional Loan Documents:

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[Signature page to Supplement to Loan and Security Agreement]

IN WITNESS WHEREOF, the parties have executed this Supplement as of the date first above written.

EXHIBIT “A”

FORM OF PROMISSORY NOTE

The undersigned (“Borrower”) promises to pay to the order of AVENUE VENTURE OPPORTUNITIES FUND, L.P., a Delaware limited partnership (“Lender”), at such place as Lender may designate in writing, in lawful money of the United States of America, the principal sum of                      Dollars ($        ), with interest thereon from the date hereof until maturity, whether scheduled or accelerated, at a variable rate per annum equal to the sum of (i) the greater of (A) the Prime Rate and (B) three and one-quarters percent (3.25%), plus (ii) seven and seven-tenths percent (7.70%) (the “Designated Rate”), according to the payment schedule described herein, except as otherwise provided herein. In addition, on the Maturity Date, Borrower promises to pay to the order of Lender (i) all principal and accrued interest then remaining unpaid and (ii) the Final Payment (as defined in the Loan Agreement (as defined herein)).

This Note is one of the Notes referred to in, and is entitled to all the benefits of, a Loan and Security Agreement, dated as of August 6, 2021, between Borrower and Lender (as the same has been and may be amended, restated or supplemented from time to time, the “Loan Agreement”). Each capitalized term not otherwise defined herein shall have the meaning set forth in the Loan Agreement. The Loan Agreement contains provisions for the acceleration of the maturity of this Note upon the happening of certain stated events.

Principal of and interest on this Note shall be payable as provided under Section 2 of Part 2 of the Supplement to the Loan Agreement.

This Note may be prepaid only as permitted under Section 2 of Part 2 of the Supplement to the Loan Agreement.

Any unpaid payments of principal or interest on this Note shall bear interest from their respective maturities, whether scheduled or accelerated, at a rate per annum equal to the Default Rate, compounded monthly. Borrower shall pay such interest on demand.

Interest, charges and fees shall be calculated for actual days elapsed on the basis of a 360-day year, which results in higher interest, charge or fee payments than if a 365-day year were used. In no event shall Borrower be obligated to pay interest, charges or fees at a rate in excess of the highest rate permitted by applicable law from time to time in effect.

If Borrower is late in making any scheduled payment under this Note by more than five (5) days, Borrower agrees to pay a “late charge” of five percent (5.00%) of the installment due, but not less than Fifty Dollars ($50.00) for any one such delinquent payment. This late charge may be charged by Lender for the purpose of defraying the expenses incidental to the handling of such delinquent amounts. Borrower acknowledges that such late charge represents a reasonable sum considering all of the circumstances existing on the date of this Note and represents a fair and reasonable estimate of the costs that will be sustained by Lender due to the failure of Borrower to make timely payments. Borrower further agrees that proof of actual damages would be costly and inconvenient. Such late charge shall be paid without prejudice to the right of Lender to collect any other amounts provided to be paid or to declare a default under this Note or any of the other Loan Documents or from exercising any other rights and remedies of Lender.

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[Signature page to Promissory Note]

This Note shall be governed by, and construed in accordance with, the laws of the State of California, excluding those laws that direct the application of the laws of another jurisdiction.

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EXHIBIT “B”

FORM OF BORROWING REQUEST

August 6, 2021

Avenue Venture Opportunities Fund, L.P.

11 West 42nd Street, 9th Floor

New York, New York 10036

Ladies and Gentlemen:

Reference is made to the Loan and Security Agreement, dated as of August 6, 2021 (as amended, restated or supplemented from time to time, the “Loan Agreement”; the capitalized terms used herein as defined therein), between Avenue Venture Opportunities Fund, L.P. (“Lender”) and DELCATH SYSTEMS, INC. (“Borrower”).

The undersigned is the                      of Borrower and hereby requests on behalf of Borrower a Loan under the Loan Agreement, and in that connection certifies as follows:

1.    The amount of the proposed Loan is                      Dollars ($        ). The Borrowing Date of the proposed Loan is                      (the “Borrowing Date”).

(a)    [On the Borrowing Date, the Lender will wire $[        ] less fees and expenses to be deducted on the Borrowing Date of (a) $150,000.00 in respect to the Commitment Fee, of which $75,000.00 has been paid to the Lender prior to the date hereof, (b) $[        ] in respect to the interest fee, and (c) $[        ] in respect to the legal fees for net proceeds of $[        ] to Borrower pursuant to the following wire instructions]¹:

[On the Borrowing Date, the Lender will wire $[        ] less fees and expenses to be deducted on the Borrowing Date of (a) $         in respect to the Commitment Fee, (b) $[        ] in respect to the interest fee, and (c) $[        ] in respect to the legal fees for net proceeds of $[        ] to Borrower pursuant to the following wire instructions]²:

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(b)    On the Borrowing Date, the Lender will wire $4,000,000.00 (representing Tranche 1(b)) into the following Blocked Account pursuant to the following wire instructions:³

(c)    On the Borrowing Date, the Lender will wire $[        ] to Barnes & Thornburg LLP, and $[        ] to Matheson, for fees and expenses pursuant to the following respective wire instructions.⁴

2.    As of this date, no Default or Event of Default has occurred and is continuing, or will result from the making of the proposed Loan, the representations and warranties of Borrower contained in Article 3 of the Loan Agreement and in the Disclosure Letter are true and correct in all material respects other than those representations and warranties expressly referring to a specific date which are true and correct in all material respects as of such date, and the conditions precedent described in Sections 4.1 and/or 4.2 of the Loan Agreement and Part 2 of the Supplement, as applicable, have been met.

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3.    No event has occurred that has had or could reasonably be expected to have a Material Adverse Change.

4.    Borrower’s most recent financial statements, financial projections or business plan dated                     , as reviewed by Borrower’s Board of Directors, are enclosed herewith in the event such financial statements, financial projections or business plan have not been previously provided to Lender.

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[Signature page to Borrowing Request]

Borrower shall notify you promptly before the funding of the Loan if any of the matters to which I have certified above shall not be true and correct on the Borrowing Date.

EXHIBIT “C”

FORM OF

COMPLIANCE CERTIFICATE

Avenue Venture Opportunities Fund, L.P.

11 West 42nd Street, 9th Floor

New York, New York 10036

Ladies and Gentlemen:

Reference is made to the Loan and Security Agreement, dated as of August 6, 2021 (as the same has been and may be supplemented, amended and modified from time to time, the “Loan Agreement,” the capitalized terms used herein as defined therein), between Avenue Venture Opportunities Fund, L.P. (“Lender”) and DELCATH SYSTEMS, INC. (“Borrower”).

The undersigned authorized representative of Borrower hereby certifies in such capacity that in accordance with the terms and conditions of the Loan Agreement, (i) no Default or Event of Default has occurred and is continuing, except as noted below, and (ii) Borrower is in compliance for the financial reporting period ending                      with all required financial reporting under the Loan Agreement, except as noted below. Attached herewith are the required documents supporting the foregoing certification. The undersigned authorized representative of Borrower further certifies in such capacity that: (a) the accompanying financial statements have been prepared in accordance with Borrower’s past practices applied on a consistent basis, or in such manner as otherwise disclosed in writing to Lender, throughout the periods indicated; and (b) the financial statements fairly present in all material respects the financial condition and operating results of Borrower and its Subsidiaries, if any, as of the dates, and for the periods, indicated therein, subject to the absence of footnotes and normal year-end audit adjustments (in the case of interim monthly financial statements), except as explained below.

Please provide the following requested information and

indicate compliance status by circling (or otherwise indicating) Yes/No under “Included/Complies”:

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EQUITY & CONVERTIBLE NOTE FINANCINGS

Please provide the following information (if applicable) regarding Borrower’s most-recent equity and/or convertible note financing each time this Certificate is delivered to Lender

ACCOUNT CONTROL AGREEMENTS

Pursuant to Section 6.11 of the Loan Agreement, Borrower represents and warrants that: (i) as of the date hereof, it maintains only those deposit and investment accounts set forth below; and (ii) to the extent required by Section 6.11 of the Loan Agreement, a control agreement has been executed and delivered to Lender with respect to each such account [Note: If Borrower has established any new account(s) since the date of the last compliance certificate, please so indicate].

Deposit Accounts⁵

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Investment Accounts

AGREEMENTS WITH PERSONS IN POSSESSION OF TANGIBLE COLLATERAL

Pursuant to Section 5.9(e) of the Loan Agreement, Borrower represents and warrants that: (i) as of the date hereof, tangible Collateral is located at the addresses set forth below; and (ii) to the extent required by Section 5.9(e) of the Loan Agreement, a Waiver has been executed and delivered to Lender, or such Waiver has been waived by Lender, [Note: If Borrower has located Collateral at any new location since the date of the last compliance certificate, please so indicate].

SUBSIDIARIES AND OTHER PERSONS

Pursuant to Section 6.14(a) of the Loan Agreement, Borrower represents and warrants that: (i) as of the date hereof, it has directly or indirectly acquired or created, or it intends to directly or indirectly acquire or create, each Subsidiary or other Person described below; and (ii) such Subsidiary or Person has been made a co-borrower under the Loan Agreement or a guarantor of the Obligations [Note: If Borrower has acquired or created any Subsidiary since the date of the last compliance certificate, please so indicate].

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EXPLANATIONS

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[Signature page to Compliance Certificate]