Excluded Assets. Notwithstanding anything to the contrary in this Agreement, the following assets of Sellers shall be retained by Sellers and are not being sold, assigned, transferred or conveyed to Purchaser hereunder, and Sellers shall retain all right, title and interest to, in and under the following assets, properties, interests and rights of Sellers (all of the following are referred to collectively as the “Excluded Assets”):

Transferred Assets. The definition of “Transferred Assets” in [Section 1.01(a)] of the Purchase Agreement is hereby amended and restated in its entirety to read as follows:

Plan Assets. Each Lender as of the Closing Date represents and warrants as of the Closing Date to the Administrative Agent and the Arrangers and their respective Affiliates, and not, for the avoidance of doubt, for the benefit of the Borrower, that such Lender is not and will not be # an employee benefit plan subject to Title I of ERISA, # a plan or account subject to Section 4975 of the Code; # an entity deemed to hold “plan assets” of any such plans or accounts for purposes of ERISA or the Code; or # a “governmental plan” within the meaning of ERISA.

Purchased Assets. The Assets to be purchased from Sellers shall be limited to the following:

Title to Assets; Sufficiency of Assets; Condition of Assets. Except as set forth on [Schedule 3.4] to this Agreement, the Company is the sole and exclusive legal, beneficial and equitable owner of all right, title and interest in and has good and marketable title to the assets used in the Business, none of which are subject to any Liens but some of which is collateral securing debt pursuant to the Notes. Except for Creditor interests pursuant to the Notes, no Person other than the Company has any interest in any of the assets used in the Business, except licenses of Non-Critical Software and Open Source Software. The assets used in the Business are, taken as a whole, suitable for the purposes for which they are being used by the Company and constitute all of the assets necessary for the operation of the Business as presently conducted by the Company. The assets used in the Business are in good operating condition (normal wear and tear excepted), and are fit in all material respects for use in the ordinary course of business.

General. This Amendment is governed by and construed in accordance with the laws of the State of Illinois and forms part of and is subject to the terms and conditions of the Plan; however, the terms of this Amendment shall prevail to the extent of any conflict or inconsistency between the terms of this Amendment and the Plan, and all references in the Plan to “the Plan,” “herein,” “hereof” or similar terms shall be deemed to refer to the Plan as amended by this Amendment. Except as specifically amended pursuant to the foregoing, the Plan shall continue in full force and effect in accordance with the terms in existence as of the date of this Amendment. This Amendment, together with the Plan and the agreements referred to therein and herein, contains the entire agreement of the parties with respect to the matters herein, and may not be amended or modified except by an instrument executed in writing by all parties hereto. The parties may execute this Amendment in one or more counterparts, each of which shall for all purposes be deemed to be an original but both of which together shall constitute one and the same Amendment.

On or promptly following the Effective Date, as consideration for the Upfront Cash Payment and Upfront Stock Issuance, TRIS shall transfer the Tuzistra XR Product NDA to AYTU and shall # send to the FDA (with a copy to AYTU) any required properly executed forms (i.e., FDA Forms 356h and 1571, if applicable) and a letter transferring the NDA for such Product to AYTU and # provide the TRIS Regulatory Documentation related to such Product, excluding any DMFs or the contents thereof, to AYTU.

General. AYTU will Market the Products in the Territory, subject to Section 4.10 and Section 7.4(c)(i), under the AYTU Marks and the TRIS Trademarks.

General. Each Guarantor waives any right to require any of ​ to # proceed against the Borrower or any other Person liable on the Obligations, # enforce any of their rights against any other guarantor of the Obligations, # proceed or enforce any of their rights against or exhaust any security given to secure the Obligations, # have the Borrower or any other Loan Party joined with any Guarantor in any suit arising out of this [Article VIII] and/or the Obligations, or # pursue any other remedy in ​’ powers whatsoever. It is agreed between ​ and ​ that the foregoing waivers are of the essence of the transaction contemplated by this Agreement and the other Loan Documents and that, but for this Guaranty and such waivers, ​ would not extend or continue to extend credit under this Agreement. ​ shall not be required to mitigate damages or take any action to reduce, collect or enforce the Obligations. Each Guarantor waives any defense arising by reason of any disability, lack of corporate authority or power, or other defense of the Borrower or any other guarantor of the Obligations, and shall remain liable hereon regardless of whether the Borrower, any other Loan Party or any other guarantor be found not liable thereon for any reason. Whether and when to exercise any of the remedies of ​ under any of the Loan Documents shall be in the sole and absolute discretion of the Administrative Agent, and no delay by the Administrative Agent in enforcing any remedy, including delay in conducting a foreclosure sale, shall be a defense to any Guarantor’s liability under this [Article VIII].

General. Except in the case of notices and other communications expressly permitted to be given by telephone (and except as provided in paragraph # below), all notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail, sent by facsimile or (subject to paragraph # below) electronic mail address as follows: