AMENDED AND RESTATED GUARANTY AND SECURITY AGREEMENT
THIS AMENDED AND RESTATED GUARANTY AND SECURITY AGREEMENT dated as of December 18, 2019 (this Agreement) is entered into among KEMPHARM, INC., a Delaware corporation (KP), and each other Person signatory hereto as a Grantor (together with KP, and any other Person that becomes a party hereto as provided herein, the Grantors and each, a Grantor), each other Person signatory hereto as a Guarantor and DEERFIELD PRIVATE DESIGN FUND III, L.P., as collateral agent (the Collateral Agent) for the ratable benefit of itself and each of the Lenders (as hereinafter defined).
WHEREAS, Deerfield Private Design Fund III, L.P., as lender (DPDF Lender) and KP, as Borrower (the Borrower), entered into that certain Facility Agreement dated as of June 2, 2014 (as amended prior to the December 17, 2019, the Existing Facility Agreement);
WHEREAS, in connection with the Existing Facility Agreement, the Borrower, the other Grantors and Guarantors and the DPDF Lender and any other Lender from time to time party to the Existing Facility Agreement (the Other Lenders and together with DPDF Lender, the Lenders) are parties to that certain Guaranty and Security Agreement dated as of June 4, 2014 (as amended, supplemented, restated or otherwise modified from time to time, the Existing Guaranty and Security Agreement) pursuant to which, among other things Grantors granted a security interest in the Collateral (as hereinafter defined) to the Lenders to secure the repayment of the Secured Obligations (as hereinafter defined);
WHEREAS, KP has requested, and the Lenders have agreed to amend the Existing Facility Agreement pursuant to that certain December 2019 Exchange Agreement and Amendment to Facility Agreement, Senior Secured Convertible Notes and Warrants dated as of December 17, 2019 and effective as of the Effective Date (the December 2019 Exchange Amendment; the Existing Facility Agreement, as amended by the December 2019 Amendment and as may be further amended, supplemented, restated or otherwise modified from time to time, the Facility Agreement), among other things, to add Deerfield Specialty Situations Fund, L.P., a Delaware limited partnership (DSS), and Delaware Street Capital Master Fund, L.P. (DSCM; DSCM, DSS, DPDF Lender and the other financial institutions from time to time party to the Facility Agreement, collectively, the Lenders and individually each a Lender), as Lenders under the Facility Agreement and the Existing Guaranty and Security Agreement;
WHEREAS, KP, the other Grantors and each of the Lenders have agreed to amend and restate the Existing Guaranty and Security Agreement, among other things, to designate Deerfield Private Design Fund III, L.P., as collateral agent for the ratable benefit of itself and each of the Lenders and to grant and continue to grant a security interest in the Collateral (as hereinafter defined) as security for the Secured Obligations.
NOW, THEREFORE, in consideration for the foregoing and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS.
1.1 Unless otherwise defined herein, terms defined in the Facility Agreement and used herein shall have the meanings given to them in the Facility Agreement, and the following terms are used herein as defined in the UCC: Accounts, Certificated Security, Chattel Paper, Commercial Tort Claims, Deposit Accounts, Documents, Electronic Chattel Paper, Equipment, Farm Products, Goods, Health Care Insurance Receivables, Instruments, Inventory, Leases, Letter-of-Credit Rights, Money, Payment Intangibles, Supporting Obligations, Tangible Chattel Paper.