This SECOND AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT (as amended, restated, supplemented, or otherwise modified from time to time, this "Agreement") is entered into as of March 21, 2023, by
and among EAST WEST BANK, a California banking corporation ("Bank"), PHENOMEX INC., a Delaware corporation ("Borrower") and, immediately following the consummation of the Merger (as defined below), ISOPLEXIS CORPORATION, a Delaware corporation
("IsoPlexis").
Pursuant to the terms of that certain Agreement and Plan of Merger, dated as of December 21, 2022 (the "Merger Agreement"), among IsoPlexis, Borrower, and Iceland Merger Sub Inc., a Delaware
corporation and a wholly owned subsidiary of Borrower ("Merger Sub"), Merger Sub will merge (the "Merger") with and into the IsoPlexis (the "Merger"), with IsoPlexis as the surviving entity of such Merger.
Borrower wishes to obtain credit from time to time from Bank, and Bank desires to extend credit to Borrower. This Agreement sets forth the terms on which Bank will advance credit to Borrower, and
Borrower will repay the amounts owing to Bank, and amends and restates, in its entirety, that certain Amended and Restated Loan and Security Agreement (as amended from time to time prior to the date hereof, the "Original Agreement") by and between
Bank and Borrower dated as of June 30, 2021 (the "Original Closing Date").
(b) Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred
to herein shall be made, without giving effect to (A) any election under Accounting Standards Codification 825-10-25 (previously referred to as Statement of Financial Accounting Standards 159, The Fair Value Option for Financial Assets and Financial
Liabilities), or any successor thereto (including pursuant to the Accounting Standards Codification), to value any Indebtedness of Holdings or any Subsidiary at "fair value", as defined therein and (B) any treatment of Indebtedness relating to
convertible or equity-linked securities under Accounting Standards Codification 470-20 or 2015-03 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) requiring the valuation of any such
Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof.
(c) Notwithstanding anything to the contrary contained in the definition of "Capital Leases" or elsewhere in this Agreement, only those leases (assuming for purposes thereof that such leases
were then in effect) that would constitute "capital leases" in conformity with GAAP as in effect prior to giving effect to the adoption of Financial Accounting Standards Board Accounting Standards Update No. 2016-02 "Leases (Topic 842)" and ASU No.
2018-11 "Leases (Topic 842)" shall be considered Capital Leases hereunder or under any other Loan Document, and all calculations and deliverables under this Agreement or any other Loan Document shall be made or prepared, as applicable, in accordance
therewith; provided, that all financial statements required to be provided hereunder shall be prepared in accordance with GAAP without giving effect to the foregoing treatment of Capital Leases.
(i) Subject to and upon the terms and conditions of the Original Agreement, on the Original Closing Date, Bank made a term loan to Borrower in the original principal
amount of Twenty Million Dollars ($20,000,000) (the "Original Term Loan"). On the date hereof, immediately prior to giving effect to this Agreement, the outstanding principal balance of the Original Term Loan is Twenty Million Dollars ($20,000,000)
(the "Outstanding Original Term Loan Balance"). On the Closing Date, the Outstanding Original Term Loan Balance shall be continued hereunder for all purposes of this Agreement as a term loan made by Bank pursuant to this Agreement. Subject to and
upon the terms and conditions of this Agreement, Bank hereby agrees to make an additional term loan to Borrower on the Closing Date in the original principal amount of Fifty Million Dollars ($50,000,000) (the "Closing Date Term Loan"; the Outstanding
Original Term Loan Balance, taken together and treated as a single loan herein referred to as the "Term Loan"), such that the outstanding Term Loan on the Closing Date after giving effect to this Agreement and the extension of credit hereunder shall
equal Seventy Million Dollars ($70,000,000).
a) Interest shall accrue from the date the Term Loan is made at the rate specified in Section 2.3(a), and shall be payable monthly as provided in Section 2.3(c).
b) The Term Loan shall be repaid in equal monthly installments in the amount of Eight Hundred Seventy-Five Thousand Dollars ($875,000) each, commencing on the Amortization
Date and continuing on the first day of each month thereafter through and including March 1, 2028. On the Term Loan Maturity Date, the outstanding principal amount of the Term Loan and all accrued and unpaid interest thereon shall be immediately due
and payable. The Term Loan, once repaid, may not be reborrowed.
(f) Bank and any other recipient of any payment to be made by or on account of any obligation of any Loan Party hereunder or under any other Loan Document, shall provide a duly executed IRS
Form W-9 to Borrower on the Closing Date, and other appropriate documentation (upon Borrower's written request) certifying to Bank's exemption from, or reduction in rate of, United States federal withholding taxes. Bank and any other such recipient
agree 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 the Loan Party in writing of its legal inability to do so.
(g) If a payment made to Bank or any other recipient of any payment on account of any obligation of any Loan Party hereunder or under any other Loan Document would be subject to U.S. federal
withholding tax imposed by FATCA if such recipient were to fail to comply with the applicable reporting requirements of FATCA (including those contained in IRC Section 1471(b) or 1472(b), as applicable), such recipient shall deliver to Borrower at
the time or times prescribed by law and at such time or times reasonably requested by Borrower such documentation prescribed by applicable law (including as prescribed by IRC Section 1471(b)(3)(C)(i)) and such additional documentation reasonably
requested by Borrower as may be necessary for Borrower to comply with its obligations under FATCA and to determine that such recipient has complied with such recipient's obligations under FATCA or to determine the amount to deduct and withhold from
such payment. Solely for purposes of this Section 2.7(g), "FATCA" shall include any amendments made to FATCA after the date of this Agreement.
(h) The Loan Parties' obligations under this Section 2.7 shall survive the repayment of the Loans, the assignment of the Loans, and the termination of the other provisions of this Agreement.
(a) Bank shall have received executed counterparts of this Agreement and each of the other agreements, documents, instruments, opinions, certificates and other items as set forth on Schedule
3.1(a) hereto, in each case, where applicable, duly executed by the applicable parties thereto;
(b) Since January 1, 2023, no event shall have occurred which has had or would reasonably be expected have a Material Adverse Effect;
(c) Bank shall have received payment of the fees and Bank Expenses then due pursuant to Section 2.5;
(e) the representations and warranties contained in this Agreement and each other Loan Document shall be true and correct in all material respects on and as of the Closing Date (provided,
however, that those representations and warranties expressly referring to another date shall be true, correct and complete in all material respects as of such date); and
(f) no Event of Default shall have occurred and be continuing, or would result from the making of the Credit Extension on the Closing Date after giving effect to such Credit Extension.
The making of the Credit Extension on the Closing Date shall be deemed to be a representation and warranty by Borrower on the Closing Date that the foregoing conditions are satisfied on such date.
(a) The Loan Parties are the sole owners or licensees of the Intellectual Property, except for (a) licenses permitted hereunder or granted by the Loan Parties to their customers in the
ordinary course of business, (b) over the counter software that is commercially available to the public and (c) those agreements into which the Loan Parties have entered that provide for joint ownership of certain intellectual property rights created
during the course of the engagement. To the best of each Loan Party's knowledge, each of the Copyrights, Trademarks and Patents is valid and enforceable, and no part of the Intellectual Property has been judged invalid or unenforceable, in whole or
in part, and, except as set forth in Section 5.7 of the Disclosure Schedules, no claim has been made to any Loan Party that it has infringed or misappropriated or is currently infringing or misappropriating the rights of any third party except to the
extent such claim could not reasonably be expected to cause a Material Adverse Effect. The applicable Loan Parties have taken commercially reasonable actions necessary to maintain and protect the Intellectual Property that is necessary in or
material to the conduct of the business of any Loan Party, including taking reasonable measures to maintain the confidentiality of all such Intellectual Property that constitutes a trade secret under applicable law.
(b) Except as specifically disclosed in Section 5.7 of the Disclosure Schedules, to the knowledge of each Loan Party, no Person has infringed or misappropriated or is currently infringing or
misappropriating any Intellectual Property rights owned or exclusively licensed by such Loan Party, except to the extent such claim could not reasonably be expected to cause a Material Adverse Effect.
(c) Section 5.7 of the Disclosure Schedules sets forth a complete and accurate list of all Open Source Software in use by any Loan Party as of the Closing Date. Each Loan Party's use of Open
Source Software (i) is in full compliance with the terms of each applicable open source license and (ii) is in a manner that does not require or condition the use or distribution of any Loan Party's proprietary software on the disclosure, licensing,
or distribution of any source code for any portion of the proprietary software, or otherwise impose an obligation to disclose or distribute any proprietary software on a royalty-free basis.
(d) All employees and contractors of each Loan Party who were involved in the creation or development of any Intellectual Property for the benefit of or under the supervision of such Loan
Party that is necessary in or material to the business of such Loan Party have signed agreements containing assignment of Intellectual Property rights to such Credit Party and obligations of confidentiality.
(a) To the extent applicable, each Loan Party and each of its Subsidiaries is in compliance with (i) the Patriot Act in all material respects and (ii) any applicable anti-money laundering
laws or any applicable Sanctions or Requirements of Law that in each case are binding on them, except in the case of this clause (ii) where the failure to be in compliance would not reasonably be expected to have a Material Adverse Effect. To the
knowledge of each Loan Party, none of the Loan Parties, their respective Subsidiaries or their respective officers or directors is an Embargoed Person.
(b) No part of the proceeds of the Loans will be used, directly or, to the knowledge of management of any Loan Party, indirectly, for any payments to any governmental official or employee,
political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of the United States Foreign
Corrupt Practices Act of 1977.
(c) None of the Loan Parties or their respective Subsidiaries or, to the knowledge of any of their respective officers and directors, will directly or indirectly use any proceeds of the
Loans or lend, contribute or otherwise make available such proceeds to any Person for the purpose of financing the activities of or with any Person or in any country or territory that, at the time of funding, is an Embargoed Person.
Each Loan Party covenants that, until the Obligations have been Paid in Full and for so long as Bank may have any commitment to make a Credit Extension hereunder, each Loan Party shall, and shall
cause each of its Subsidiaries to, do all of the following:
(k) Promptly following any request therefor by Bank, each Loan Party shall provide information and documentation reasonably requested by Bank for purposes of compliance with applicable "know
your customer" requirements under the PATRIOT Act, the Beneficial Ownership Regulation or other applicable anti-money laundering laws, including but not limited to a Beneficial Ownership Certification form acceptable to Bank.
(l) Promptly following request therefor by Bank, such other business or financial information as Bank may reasonably request.
The Loan Parties may deliver to Bank on an electronic basis any certificates, reports or information required pursuant to this Section 6.2, and Bank shall be entitled to rely on the information
contained in the electronic files, provided that Bank in good faith believes that the files were delivered by a Responsible Officer. To the extent any such documents are included in materials otherwise filed with the SEC, such documents shall be
deemed to have been delivered on the date on which Borrower or any of its Subsidiaries posts such documents, or provides a link thereto, on Borrower's or any of its Subsidiaries' website on the internet at Borrower's or any of its Subsidiaries'
website address; provided, however, Borrower shall promptly notify Bank in writing (which may be by electronic mail) of the posting of any such documents.
(a) Each Loan Party shall, and shall cause each of its Subsidiaries to, at its expense, keep the Collateral insured against loss or damage by fire, theft, explosion, sprinklers, and all
other hazards and risks, and in such amounts, as is customarily insured against by other owners in similar businesses conducted in the locations where such Loan Party's or such Subsidiary's business is conducted on the date hereof. Each Loan Party
shall, and shall cause each of its Subsidiaries to, also maintain liability and other insurance in amounts and of a type that are customary to businesses similar to such Loan Party's or such Subsidiary's business.
(b) All such policies of insurance shall be in such form, with such companies, and in such amounts as reasonably satisfactory to Bank. All policies of property insurance shall contain a
lender's loss payable endorsement, in a form reasonably satisfactory to Bank, showing Bank as a lender's loss payee, and all liability insurance policies shall show Bank as an additional insured and specify that the insurer must give at least
twenty (20) days' notice to Bank before canceling its policy for any reason (10 days' notice for cancellation for reason of non-payment of premiums). All policies of insurance shall be addressed to Bank as follows: East West Bank, its successors
and assigns, 135 North Robles Avenue, 2nd Floor, Pasadena, California 91101. Upon Bank's request, Borrower shall deliver to Bank certified copies of the policies of
insurance and evidence of all premium payments. All proceeds payable under any such policy shall, at Bank's option, be payable to Bank to be applied on account of the Obligations.
6.6. Deposit Accounts; Securities Accounts.
(a) Subject to Section 6.16, each Loan Party shall maintain its primary depository relationship with Bank, including general operating and administrative deposit accounts, cash
management services, and its primary investment accounts (covered by reasonably satisfactory control agreements).
(b) Subject to Section 6.16, (i) Borrower shall cause at least ninety percent (90%) of the cash and cash equivalents of Borrower and its Subsidiaries to be held in deposit or investment
accounts maintained with Bank at all times, and (ii) the Loan Parties shall not maintain Deposit Accounts or Securities Accounts with any other bank or securities intermediary located within the United States (other than that certain Securities
Account maintained with Morgan Stanley Smith Barney LLC, as of the Closing Date that has been previously disclosed to Bank).
(c) Subject to Section 6.16, all Deposit Accounts and Securities Accounts of the Loan Parties shall be subject to control agreements in form and content reasonably acceptable to Bank
(other than (i) Excluded Accounts and (ii) Deposit Accounts that are subject to an assignment of deposit as contemplated by Section 6.7(b)); provided, however, that the Loan Parties may maintain Deposit Accounts at branch offices
of a bank or securities intermediary located outside the United States that are not subject to control agreements so long as the aggregate balances of all such Deposit Accounts located outside the United States not subject to a control agreement
do not exceed Three Million Dollars ($3,000,000) at any time.
6.7. Financial Covenants. The Loan Parties shall at all times maintain the following ratios and covenants:
(a) Remaining Months Liquidity. Have Remaining Months Liquidity of at least 4.00 to 1.00, measured as of the last day of each fiscal quarter; provided, however,
that if the Loan Parties are out of compliance with such Remaining Months Liquidity requirement, it shall not be an Event of Default or a breach of this Section 6.7 if each Loan Party, within ten (10) Business Days of falling out of compliance
(the "IP Trigger Milestone"), executes an Amendment to Loan and Security Agreement (in a form to be mutually agreed among the parties thereto) and Intellectual Property Security Agreement (in substantially the form attached hereto as Exhibit
F) in order to provide Bank with a perfected first priority security interest on each Loan Party's Intellectual Property. Furthermore, if after falling out of compliance and entering into the aforementioned documents, Borrower achieves
Remaining Months Liquidity of at least 10.00 to 1.00 (the "IP Release Milestone"), Bank agrees to execute the necessary documents required to release such perfected first priority security interest on each Loan Party's Intellectual Property.
(b) Minimum Unrestricted Cash. Maintain unrestricted cash and cash equivalents of the Loan Parties of not less than Seventy Million Dollars ($70,000,000) in the aggregate at all
times, all of which shall be held in a Deposit Accounts of one or more Loan Parties maintained with Bank that are not Excluded Accounts and are subject to an assignment of deposit in form and substance satisfactory to Bank (it being acknowledged
and agreed by Bank that the form of Assignment of Deposit executed and delivered on the Closing Date is satisfactory).
(c) Minimum EBITDA. During any Covenant Testing Period, maintain EBITDA, measured on the last day of each quarter, for the one-quarter period ending on such date, of at least
the amount set forth in the following table for the one-quarter period ending on the date set forth opposite thereto:
|
Applicable Amount
|
|
Quarter Ending
|
|
($25,000,000)
|
|
March 31, 2023
|
|
($14,500,000)
|
|
June 30, 2023
|
|
($9,168,000)
|
|
September 30, 2023
|
|
($4,651,000)
|
|
December 31, 2023
|
|
($659,000)
|
|
March 31, 2024
|
|
($131,000)
|
|
June 30, 2024
|
|
$467,000
|
|
September 30, 2024
|
|
$4,071,000
|
|
December 31, 2024
|
|
$5,275,000
|
|
March 31, 2025
|
|
$4,981,000
|
|
June 30, 2025
|
|
$5,505,000
|
|
September 30, 2025
|
|
$7,260,000
|
|
December 31, 2025
|
|
$6,057,000
|
|
March 31, 2026
|
|
$7,983,000
|
|
June 30, 2026
|
|
$11,887,000
|
|
September 30, 2026
|
|
$15,576,000
|
|
December 31, 2026
|
|
$14,190,000
|
|
March 31, 2027
|
|
$15,486,000
|
|
June 30, 2027
|
|
$21,441,000
|
|
September 30, 2027
|
| |
$30,268,000
|
|
December 31, 2027 and each March 31, June 30, September 30 and December 31 thereafter
|
6.8. Registration of Intellectual Property Rights.
(a) Borrower shall register or cause to be registered (to the extent not already registered) with the United States Patent and Trademark Office or the United States Copyright Office, as
the case may be, those registrable intellectual property rights now owned or hereafter developed or acquired by Borrower, to the extent that Borrower, in its reasonable business judgment, deems it appropriate to so protect such intellectual
property rights.
(b) Borrower shall, in the then-next Compliance Certificate, give Bank written notice of any applications or registrations of intellectual property rights filed with the United States
Patent and Trademark Office, including the date of such filing and the registration or application numbers, if any.
(c) Borrower shall give Bank prompt written notice of the filing of any applications or registrations with the United States Copyright Office, including the title of such intellectual
property rights to be registered, as such title will appear on such applications or registrations, and the date such applications or registrations will be filed.
(d) Borrower shall (i) protect, defend and maintain the validity and enforceability of the Trademarks, Patents, Copyrights, and trade secrets that have any material value, (ii) subject to
any applicable attorney-client privilege, use commercially reasonable efforts to detect infringements of the Trademarks, Patents and Copyrights that have any material value and promptly advise Bank in writing of material infringements detected,
(iii) not allow any Trademarks, Patents or Copyrights that are material to the business of Borrower and its Subsidiaries to be abandoned, forfeited or dedicated to the public without the written consent of Bank, which shall not be unreasonably
withheld and (iv) require all employees, consultants, and contractors of each Loan Party who were involved in the creation or development of such Intellectual Property to sign agreements containing assignment of Intellectual Property rights and
obligations of confidentiality.
(e) Each Loan Party's use of Open Source Software shall be (i) in full compliance with the terms of each applicable open source license and (ii) in a manner that does not require or
condition the use or distribution of any Loan Party's proprietary software on the disclosure, licensing, or distribution of any source code for any portion of the proprietary software, or otherwise impose an obligation to disclose or distribute
any proprietary software on a royalty-free basis.
6.9. Notice for Inbound Licenses. In the then-next Compliance Certificate after entering into or becoming bound by any inbound license or agreement (other than off-the-shelf
software that is commercially available to the public) that is material or necessary to the conduct of the business of Borrower and its Subsidiaries, Borrower shall provide written notice to Bank of the material terms of such license or agreement
with a description of its likely impact on Borrower's business or financial condition.
6.10. Creation/Acquisition of Subsidiaries. In the event Borrower or any Subsidiary creates or acquires any Domestic Subsidiary, Borrower and such Subsidiary shall notify Bank in
the then-next Compliance Certificate after the creation or acquisition of such new Subsidiary and take all such action as may be reasonably required by Bank to cause each such Domestic Subsidiary to guarantee the Obligations of Borrower under the
Loan Documents and grant a continuing pledge and security interest in and to the collateral of such Subsidiary (substantially as described on Exhibit B hereto), and Borrower (or the applicable Subsidiary) shall grant and pledge to Bank a
perfected security interest in the Shares of each Subsidiary (whether foreign or domestic).
6.11. [Reserved].
6.12. Further Assurances. At any time and from time to time each Loan Party shall execute and deliver such further instruments and take such further action as may reasonably be
requested by Bank to effect the purposes of this Agreement.
6.13. Interest Rate Protection. Subject to Section 6.16, Borrower shall at all times be party to Hedging Agreements satisfactory to Bank for interest rate protection with respect to
not less than seventy-five percent (75%) of the Term Loan for a period of not less than one (1) year and shall keep such Hedging Agreements in full force and effect at all times during such period.
6.14. Patriot Act, Bank Secrecy Act and Office of Foreign Assets Control. As required by federal law and Bank's policies and practices, Bank may need to obtain, verify and record
certain customer identification information and documentation in connection with opening or maintaining accounts, or establishing or continuing to provide services and each Loan Party agrees, and shall cause each of its Subsidiaries to provide
such information. In addition, and without limiting the foregoing sentence, each Loan Party shall not use or permit the use of the proceeds of the Loans to violate any of the foreign asset control regulations of OFAC or any enabling statute or
Executive Order relating thereto, and comply, and cause each Subsidiary to comply, with all applicable Bank Secrecy Act (P.L. 91-508, 84 Stat. 118) (1970) (the "BSA") and the PATRIOT Act and any regulations under the BSA or the PATRIOT
Act.
6.15. Bank Meetings. Promptly following the delivery of financial statements pursuant to Section 6.2(a) and 6.2(b) or, if earlier, the filing of each Form 10-K and 10-Q filed with
the Securities and Exchange Commission, Borrower will hold, at times during normal business hours to be mutually agreed between Borrower and Bank, a conference call with Bank at which meeting the parties shall review the financial results of the
Loan Parties and their Subsidiaries presented in the applicable financial statements and the financial condition of the Loan Parties and their Subsidiaries.
6.16. Post-Closing Obligations. Within the time periods specified under the heading "Post-Closing Obligations" of the Post-Closing Schedule (or such longer period of time as may be
agreed to by Bank in writing in its sole discretion), Borrower shall execute and deliver the documents to Bank, and complete such undertakings, as are set forth on such schedule.
7. NEGATIVE COVENANTS.
Each Loan Party covenants and agrees that, until the Obligations are Paid in Full or for so long as Bank may have any commitment to make any Credit Extensions, no Loan Party, and no Subsidiary of
any Loan Party will do any of the following without Bank's prior written consent, which shall not be unreasonably withheld:
7.1. Dispositions. Convey, sell, lease, license, transfer or otherwise dispose of (collectively, to "Transfer"), or permit any Loan Party or any of its Subsidiaries to Transfer,
all or any part of its business or property, or subject to Section 6.6 of the Agreement, move cash balances on deposit with Bank to accounts opened at another financial institution, other than Permitted Transfers; provided that it is
understood and agreed that, to the extent that any Collateral is Transferred as expressly permitted by this Section 7.1 to any Person that is not a Loan Party and Borrower has delivered to Bank, a certificate of a Responsible Officer of Borrower
as to such Transfer being made in compliance with this Section 7.1, such Collateral shall be Transferred of free and clear of the Liens created by the Loan Documents, which Liens shall be automatically released upon the consummation of such
Transfer; it being understood and agreed that Bank shall be authorized to take, and shall take any actions reasonably requested by Borrower in order to effect the foregoing.
7.2. Change in Name, Location, Executive Office, or Executive Management; Change in Business; Change in Fiscal Year; Change in Control. In the case of Borrower, change its name or
the Borrower State or relocate its chief executive office without thirty (30) days' prior written notification to Bank; in the case of any Loan Party (other than Borrower) or any Subsidiary of any Loan Party, change its name or state of
organization or relocate its chief executive office without thirty (30) days written notification to Bank; engage in any business, or permit any of its Subsidiaries to engage in any business, other than or reasonably related or incidental to the
businesses currently engaged in by Borrower; change its fiscal year end; have a Change in Control.
7.3. Mergers or Acquisitions. Merge or consolidate, or permit any of its Subsidiaries to merge or consolidate, with or into any other business organization (other than mergers or
consolidations of a Subsidiary into another Subsidiary that is a Loan Party or into Borrower (or in the case of Subsidiaries that are not Loan Parties, into another Subsidiary that is not a Loan Party)), or acquire, or permit any of its
Subsidiaries to acquire, all or substantially all of the Capital Stock or property of another Person except where (i) such transactions do not in the aggregate exceed One Hundred Thousand Dollars ($100,000) during any fiscal year, (ii) no Event
of Default has occurred, is continuing or would exist after giving effect to such transactions, (iii) such transactions do not result in a Change in Control, and (iv) Borrower is the surviving entity.
7.4. Indebtedness. Create, incur, assume, guarantee or be or remain liable with respect to any Indebtedness, or permit any Subsidiary so to do, other than Permitted Indebtedness,
or prepay any Indebtedness or take any actions which impose on Borrower an obligation to prepay any Indebtedness prior to the scheduled maturity or due date, except Indebtedness to Bank.
7.5. Encumbrances. Create, incur, assume or allow any Lien with respect to any of its property, or assign or otherwise convey any right to receive income, including the sale of any
Accounts, or permit any of its Subsidiaries so to do, except for Permitted Liens, or covenant to any other Person (other than (i) the licensors of in-licensed property with respect to such property or (ii) the lessors of specific equipment or
lenders financing specific equipment with respect to such leased or financed equipment) that any Loan Party or any Subsidiary in the future will refrain from creating, incurring, assuming or allowing any Lien with respect to any of such Loan
Party's or such Subsidiary's property.
7.6. Distributions. Pay any dividends or make any other distribution or payment on account of or in redemption, retirement or purchase of any Capital Stock, except that Borrower
may (i) repurchase the stock of former employees, consultants or directors in an aggregate amount not to exceed Two Hundred Fifty Thousand Dollars ($250,000) in any fiscal year, pursuant to stock repurchase agreements as long as an Event of
Default does not exist prior to such repurchase or would not exist after giving effect to such repurchase, (ii) repurchase the stock of former employees, consultants or directors pursuant to stock repurchase agreements in any amount where the
consideration for the repurchase is the cancellation of indebtedness owed by such former employees , consultants or directors to Borrower regardless of whether an Event of Default exists, (iii) make dividends or distributions solely in the common
stock of Borrower; (iv) convert any of its equity or Subordinated Debt securities into other equity or Subordinated Debt securities pursuant to the terms of such securities or otherwise in exchange therefore; (v) purchase Capital Stock in
connection with the exercise of stock options or stock appreciation by way of a cashless exercise, provided that such purchases do not in the aggregate exceed Two Hundred Fifty Thousand Dollars ($250,000) per fiscal year and (vi) purchase
fractional shares of Capital Stock arising out of stock dividends, splits or combinations or business combinations in an amount not to exceed Fifty Thousand Dollars ($50,000) per fiscal year.
7.7. Investments. Directly or indirectly acquire or own, or make any Investment in or to any Person, or permit any of its Subsidiaries to do so, other than Permitted Investments,
or, subject to the requirements of Section 6.6, maintain or invest any of its Investment Property with a Person other than Bank or Bank's Affiliates or permit any Subsidiary to do so unless such Person has entered into a control agreement with
Bank, in form and substance satisfactory to Bank, or suffer or permit any Subsidiary to be a party to, or be bound by, an agreement that restricts such Subsidiary from paying dividends or otherwise distributing property to Borrower. Further, no
Loan Party or any Subsidiary shall enter into any license or agreement with any Prohibited Territory or with any Person organized under or doing business in a Prohibited Territory.
7.8. Transactions with Affiliates. Directly or indirectly enter into or permit to exist any material transaction with any Affiliate of Borrower except for (i) transactions that
are in the ordinary course of Borrower's business, upon fair and reasonable terms that are no less favorable to Borrower than would be obtained in an arm's length transaction with a non-affiliated Person, (ii) the sale or issuance of Borrower's
equity securities in a bona fide equity investment round to investors, (iii) Subordinated Debt and (iv) compensation arrangements on fair and reasonable terms approved by Borrower's board of directors.
7.9. Subordinated Debt. Make any payment in respect of any Subordinated Debt, or permit any of its Subsidiaries to make any such payment, except in compliance with the terms of
such Subordinated Debt and the terms of the subordination agreement relating to such Subordinated Debt, or amend any provision of any document evidencing such Subordinated Debt, except in compliance with the terms of the subordination agreement
relating to such Subordinated Debt, or amend any provision affecting Bank's rights contained in any documentation relating to the Subordinated Debt without Bank's prior written consent.
7.10. Inventory and Equipment. Other than Inventory and Equipment at customer sites, store the Inventory or the Equipment having a book value in excess of Five Hundred Thousand
Dollars ($500,000) with a bailee, warehouseman, or similar third party unless the third party has been notified of Bank's security interest and (a) the applicable Loan Party has used commercially reasonable efforts to obtain an acknowledgment
from the third party that it is holding or will hold the Inventory or Equipment for Bank's benefit or (b) Bank is in possession of the warehouse receipt, where negotiable, covering such Inventory or Equipment. Except for Inventory sold in the
ordinary course of business and for movable items of personal property having book value not in excess of Five Hundred Thousand Dollars ($500,000), and except for such other locations as Bank may approve in writing, each Loan Party shall keep the
Inventory and Equipment only at the location set forth in Section 10 and such other locations of which Borrower gives Bank written notice and as to which Bank files a financing statement where needed to perfect its security interest.
7.11. No Investment Company; Margin Regulation. Become or be controlled by an "investment company," within the meaning of the Investment Company Act of 1940, or become principally
engaged in, or undertake as one of its important activities, the business of extending credit for the purpose of purchasing or carrying margin stock, or use the proceeds of any Credit Extension for such purpose.
8. EVENTS OF DEFAULT.
The occurrence of any one or more of the following events shall constitute an Event of Default by Borrower under this Agreement:
8.1. Payment Default. If Borrower fails to pay any of the Obligations when due;
8.2. Covenant Default.
(a) (i) If any Loan Party fails to perform any obligation under Sections 6.2, 6.4, 6.5, 6.6, 6.7(a) (after giving effect to the grace period set forth therein), 6.7(b), 6.7(c), 6.8,
6.11, 6.12, 6.13, 6.14, or 6.16 (after giving effect to any extensions provided by Bank pursuant to such Section 6.16) or violates any of the covenants contained in Article 7 of this Agreement or (ii) if any Loan Party fails to perform any
obligation under Section 6.1 (solely if any Loan Party fails to maintain its organizational existence); or
(b) If any Loan Party fails or neglects to perform or observe any other material term, provision, condition, covenant contained in this Agreement, in any of the Loan Documents, and as to
any default under such other term, provision, condition or covenant that can be cured, has failed to cure such default within thirty (30) days after Borrower receives notice thereof or any Responsible Officer of Borrower becomes aware thereof;
8.3. Material Adverse Change. If there occurs any circumstance or circumstances that could reasonably be expected to have a Material Adverse Effect;
8.4. Attachment. If any material portion of any Loan Party's assets is attached, seized, subjected to a writ or distress warrant, or is levied upon, or comes into the possession of
any trustee, receiver or person acting in a similar capacity and such attachment, seizure, writ or distress warrant or levy has not been removed, discharged or rescinded within ten (10) days, or if any Loan Party is enjoined, restrained, or in
any way prevented by court order from continuing to conduct all or any material part of its business affairs, or if a judgment or other claim becomes a lien or encumbrance upon any material portion of any Loan Party's assets, or if a notice of
lien, levy, or assessment is filed of record with respect to any material portion of any Loan Parties assets by the United States Government, or any department, agency, or instrumentality thereof, or by any state, county, municipal, or
governmental agency, and the same is not paid within ten (10) days after Borrower receives notice thereof, provided that none of the foregoing shall constitute an Event of Default where such action or event is stayed or an adequate bond has been
posted pending a good faith contest by the applicable Loan Party (provided that no Credit Extensions will be made during such cure period);
8.5. Insolvency. If any Loan Party becomes insolvent, or if an Insolvency Proceeding is commenced by any Loan Party, or if an Insolvency Proceeding is commenced against any Loan
Party and is not dismissed or stayed within forty-five (45) days (provided that no Credit Extensions will be made prior to the dismissal of such Insolvency Proceeding);
8.6. Other Agreements. If there is an uncured default or other uncured failure to perform in any agreement to which any Loan Party is a party with a third party or parties
resulting in a right by such third party or parties, whether or not exercised, to accelerate the maturity of any Indebtedness in an amount in excess of Three Hundred Thousand Dollars ($300,000) or that would reasonably be expected to have a
Material Adverse Effect;
8.7. Subordinated Debt. If any Loan Party or any other Person on behalf of a Loan Party makes any payment on account of Subordinated Debt, except to the extent the payment is
allowed under any subordination agreement entered into with Bank;
8.8. Judgments. If one or more judgments, orders, or decrees for the payment of money in an amount, individually or in the aggregate, of at least One Million Dollars ($1,000,000)
(not covered by independent third-party insurance as to which liability has been accepted by such insurance carrier) shall be rendered against any Loan Party or any Subsidiary of any Loan Party, or any Loan Party or any Subsidiary of any Loan
Party enters into a settlement agreement with respect to any action or proceeding pending against any Loan Party or any Subsidiary of a Loan Party before any court or administrative agency or threatened in writing that involves the payment of
consideration by such Loan Party or Subsidiary, individually or in the aggregate, of One Million Dollars ($1,000,000) or more.
8.9. Misrepresentations. If any material misrepresentation or material misstatement exists now or hereafter in any warranty or representation set forth herein or in any
certificate delivered to Bank by any Responsible Officer pursuant to this Agreement or to induce Bank to enter into this Agreement or any other Loan Document.
8.10. Guaranty. If the Guaranty is limited (other than any limitations expressly set forth therein) or ceases for any reason to be in full force and effect (for any reason other
than Payment in Full of the Obligations and the termination of the commitment of Bank, if any, to make Credit Extensions), or any Guarantor fails to perform any obligation under the Guaranty or any Guarantor repudiates, revokes or purports to
repudiate or revoke the Guaranty.
9. BANK'S RIGHTS AND REMEDIES.
9.1. Rights and Remedies. Upon the occurrence and during the continuance of an Event of Default, Bank may, at its election, without notice of its election and without demand, do any
one or more of the following, all of which are authorized by each Loan Party:
(a) Declare all Obligations, whether evidenced by this Agreement, by any of the other Loan Documents, or otherwise, immediately due and payable (provided that upon the occurrence of an
Event of Default described in Section 8.5 (insolvency), all Obligations shall become immediately due and payable without any action by Bank);
(b) Cease advancing money or extending credit to or for the benefit of Borrower under this Agreement or under any other agreement between Borrower and Bank;
(c) (i) enforce collection of any of such Loan Party's Accounts or other amounts owed to such Loan Party by suit or otherwise; (ii) exercise all of such Loan Party's rights and remedies
with respect to proceedings brought to collect any Accounts or other amounts owed to such Loan Party; (iii) surrender, release or exchange all or any part of any Accounts or other amounts owed to such Loan Party, or compromise or extend or renew
for any period (whether or not longer than the original period) any indebtedness thereunder; (iv) sell or assign any Account of such Loan Party or other amount owed to such Loan Party upon such terms, for such amount and at such time or times as
Bank deems advisable; (v) prepare, file and sign such Loan Party's name on any proof of claim in bankruptcy or other similar document against any Account Debtor or other Person obligated to such Loan Party; (vi) do all other acts and things which
are necessary, in Bank's sole discretion, to fulfill such Loan Party's obligations under the Loan Documents and to allow Bank to collect the Accounts or other amounts owed to such Loan Party; (vii) at such Loan Party's expense, notify any parties
obligated on any of the Accounts to make payment directly to Bank of any amounts due or to become due thereunder; (viii) settle or adjust disputes and claims directly with account debtors for amounts, upon terms and in whatever order Bank
reasonably considers advisable;
(d) Make such payments and do such acts as Bank considers necessary or reasonable to protect its security interest in the Collateral. Each Loan Party agrees to assemble the Collateral
if Bank so requires, and to make the Collateral available to Bank as Bank may designate. Each Loan Party authorizes Bank to enter the premises where the Collateral is located, to take and maintain possession of the Collateral, or any part of it,
and to pay, purchase, contest, or compromise any encumbrance, charge, or lien which in Bank's determination appears to be prior or superior to its security interest and to pay all expenses incurred in connection therewith. With respect to Loan
Party's owned premises, each Loan Party hereby grants Bank a license to enter into possession of such premises and to occupy the same, without charge, in order to exercise any of Bank's rights or remedies provided herein, at law, in equity, or
otherwise;
(e) Set off and apply to the Obligations any and all (i) balances and deposits of each Loan Party held by Bank, and (ii) indebtedness at any time owing to or for the credit or the
account of such Loan Party held by Bank;
(f) Ship, reclaim, recover, store, finish, maintain, repair, prepare for sale, advertise for sale, and sell (in the manner provided for herein) the Collateral. Bank is hereby granted a
license or other right, solely pursuant to the provisions of this Section 9.1, to use, without charge, each Loan Party' labels, patents, copyrights, rights of use of any name, trade secrets, trade 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 Collateral and, in connection with Bank's exercise of its rights under this Section 9.1, each Loan
Party's rights under all licenses and all franchise agreements shall inure to Bank's benefit;
(g) Sell the Collateral at either a public or private sale, or both, by way of one or more contracts or transactions, for cash or cash equivalents or on terms, in such manner and at such
places (including any Loan Party's premises) as Bank determines is commercially reasonable, and apply any proceeds to the Obligations in whatever manner or order Bank deems appropriate. Bank may sell the Collateral without giving any warranties
as to the Collateral. Bank may specifically disclaim any warranties of title or the like. This procedure will not be considered adversely to affect the commercial reasonableness of any sale of the Collateral. If Bank sells any of the
Collateral upon credit, the Loan Parties will be credited only with payments actually made by the purchaser, received by Bank, and applied to the indebtedness of the purchaser. If the purchaser fails to pay for the Collateral, Bank may resell
the Collateral and the Loan Parties shall be credited with the proceeds of the sale;
(h) Bank may credit bid and purchase at any public sale;
(i) Apply for the appointment of a receiver, trustee, liquidator or conservator of the Collateral, without notice and without regard to the adequacy of the security for the Obligations
and without regard to the solvency of any Loan Party, any guarantor or any other Person liable for any of the Obligations; and
(j) Any deficiency that exists after disposition of the Collateral as provided above will be paid immediately by Borrower or any Guarantor.
Bank may comply with any applicable state or federal law requirements in connection with a disposition of the Collateral and compliance will not be considered adversely to affect the commercial reasonableness of
any sale of the Collateral.
9.2. Power of Attorney. Effective only upon the occurrence and during the continuance of an Event of Default, each Loan Party hereby irrevocably appoints Bank (and any of Bank's
designated officers, or employees) as such Loan Party's true and lawful attorney to: (a) send requests for verification of Accounts or notify Account Debtors of Bank's security interest in the Accounts; (b) endorse such Loan Party's name on any
checks or other forms of payment or security that may come into Bank's possession, cash or deposit such checks or other items of payment or security, and apply to the Obligations all proceeds of such checks or other items; (c) sign such Loan
Party's name on any invoice or bill of lading relating to any Account, drafts against account debtors, schedules and assignments of Accounts, verifications of Accounts, and notices to account debtors; (d) dispose of any Collateral; (e) make,
settle, and adjust all claims under and decisions with respect to such Loan Party's policies of insurance; (f) settle and adjust disputes and claims respecting the accounts directly with account debtors, for amounts and upon terms which Bank
determines to be reasonable; and (g) file, in its sole discretion, one or more financing or continuation statements and amendments thereto, relative to any of the Collateral without the signature of such Loan Party where permitted by law; provided
Bank may exercise such power of attorney to sign the name of such Loan Party on any of the documents described in clause (g) above, regardless of whether an Event of Default has occurred. The appointment of Bank as each Loan Party's attorney in
fact, and each and every one of Bank's rights and powers, being coupled with an interest, is irrevocable until all of the Obligations have been Paid in Full and Bank's obligation to provide Credit Extensions hereunder is terminated (it being
understood that any such Obligations will continue to be effective or automatically reinstated, as the case may be, if at any time payment, in whole or in part, of any of the Obligations is rescinded or must otherwise be restored or returned by
Bank for any reason, including as a preference, fraudulent conveyance or otherwise under any bankruptcy, insolvency or similar law, as though such payment had not been made, it being further understood that in the event payment of all or any part
of the Obligations is rescinded or must be restored or returned, all reasonably out-of-pocket costs and expenses (including, without limitation, reasonable attorneys' fees and disbursements) incurred by Bank in defending and enforcing such
reinstatement shall be deemed to be included as part of the Obligations)).
9.3. Accounts Collection. At any time after the occurrence and during the continuation of an Event of Default, Bank may notify any Person owing funds to a Loan Party of Bank's
security interest in such funds and verify the amount of such Account. Each Loan Party shall collect all amounts owing to such Loan Party for Bank, receive in trust all payments as Bank's trustee, and immediately deliver such payments to Bank in
their original form as received from the account debtor, with proper endorsements for deposit.
9.4. Bank Expenses. If any Loan Party fails to pay any amounts or furnish any required proof of payment due to third persons or entities, as required under the terms of this
Agreement, then Bank may do any or all of the following after reasonable notice to Borrower: (a) make payment of the same or any part thereof or (b) obtain and maintain insurance policies of the type discussed in Section 6.5 of this Agreement,
and take any action with respect to such policies as Bank deems prudent. In addition, Bank may make Credit Extensions as Bank deems necessary, in its reasonable credit judgment, to preserve or protect the Collateral or the value thereof. Any
amounts so paid or deposited by Bank shall constitute Bank Expenses, shall be immediately due and payable, and shall bear interest at the then rate applicable to the Term Loan hereinabove provided, and shall be secured by the Collateral. Any
payments made by Bank shall not constitute an agreement by Bank to make similar payments in the future or a waiver by Bank of any Event of Default under this Agreement.
9.5. Bank's Liability for Collateral. Bank has no obligation to clean up or otherwise prepare the Collateral for sale. All risk of loss, damage or destruction of the Collateral
shall be borne by the Loan Parties.
9.6. No Obligation to Pursue Others. Bank has no obligation to attempt to satisfy the Obligations by collecting them from any other person liable for them and Bank may release,
modify or waive any collateral provided by any other Person to secure any of the Obligations, all without affecting Bank's rights against the Loan Parties. Each Loan Party waives any right it may have to require Bank to pursue any other Person
for any of the Obligations.
9.7. Remedies Cumulative. Bank's rights and remedies under this Agreement, the Loan Documents, and all other agreements shall be cumulative. Bank shall have all other rights and
remedies not inconsistent herewith as provided under the Code, by law, or in equity. No exercise by Bank of one right or remedy shall be deemed an election, and no waiver by Bank of any Event of Default on Borrower's part shall be deemed a
continuing waiver. No delay by Bank shall constitute a waiver, election, or acquiescence by it. No waiver by Bank shall be effective unless made in a written document signed on behalf of Bank and then shall be effective only in the specific
instance and for the specific purpose for which it was given. Each Loan Party expressly agrees that this Section 9.7 may not be waived or modified by Bank by course of performance, conduct, estoppel or otherwise.
9.8. Demand; Protest. Except as otherwise provided in this Agreement, each loan Party waives demand, protest, notice of protest, notice of default or dishonor, notice of payment
and nonpayment and any other notices relating to the Obligations.
10. NOTICES.
Unless otherwise provided in this Agreement, all notices or demands by any party relating to this Agreement or any other agreement entered into in connection herewith shall be in writing and
(except for financial statements and other informational documents which may be sent by first-class mail, postage prepaid) shall be personally delivered or sent by a recognized overnight delivery service, certified mail, postage prepaid, return
receipt requested, to the Loan Parties or to Bank, as the case may be, at its addresses set forth below:
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If to Borrower:
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PHENOMEX INC.
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5858 Horton St., Ste. 320
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Emeryville, CA 94608
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Attn: Mehul Joshi, CFO
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Email: Mehul.Joshi@PhenomeX.com and Agreements@PhenomeX.com
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If to Bank:
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East West Bank
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135 North Robles Avenue
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2nd Floor
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Pasadena, California 91101
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Attn: Eric Watson, Senior Vice President
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Email: Eric.Watson@eastwestbank.com
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The parties hereto may change the address at which they are to receive notices hereunder, by notice in writing in the foregoing manner given to the other.
11. CHOICE OF LAW AND VENUE; JURY TRIAL WAIVER; JUDICIAL REFERENCE.
11.1. Governing Law and Venue. This Agreement shall be governed by, and construed in accordance with, the internal laws of the State of New York, without regard to principles of
conflicts of law. Each Loan Party and Bank hereby submits to the exclusive jurisdiction of any state court located within the State of New York in the County of New York or in the United States District Court for the Southern District of New
York; provided, however, that nothing in this Agreement shall be deemed to operate to preclude Bank from bringing suit or taking other legal action in any other jurisdiction to realize on the Collateral or any other security for
the Obligations, or to enforce a judgment or other court order in favor of Bank. Each Loan Party expressly submits and consents in advance to such jurisdiction in any action or suit commenced in any such court, and to the extent permitted by
applicable law, each Loan Party hereby waives any objection that it may have based upon lack of personal jurisdiction, improper venue, or forum non conveniens and hereby consents to the granting of such
legal or equitable relief as is deemed appropriate by such court. To the extent permitted by applicable law, each Loan Party hereby waives personal service of the summons, complaints, and other process issued in such action or suit and agrees
that service of such summons, complaints, and other process may be made by registered or certified mail addressed to such Loan Party at the address set forth in, or subsequently provided by the Loan Parties in accordance with, Section 11 of this
Agreement and that service so made shall be deemed completed upon the earlier to occur of Borrower's actual receipt thereof or 3 days after deposit thereof in the U.S. mails, proper postage prepaid.
11.2. Jury Trial Waiver. TO THE EXTENT PERMITTED BY APPLICABLE LAW, ALL PARTIES TO THIS AGREEMENT HEREBY WAIVE THE RIGHT TO ANY JURY TRIAL IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM
BROUGHT BY ANY PARTY AGAINST ANY OTHER PARTY.
11.3. Jury Reference. In the event any legal proceeding is filed in a court of the State of California by or against any party hereto in connection with any claim and if the waiver
of the right to a trial by jury is not enforceable, the parties hereto agree that any and all disputes or controversies of any nature between them arising at any time shall be decided by a reference to a private judge, who shall be a retired
state or federal court judge, mutually selected by the parties or, if they cannot agree, then any party may seek to have a private judge appointed in accordance with California Code of Civil Procedure §§ 638 and 640 (or pursuant to comparable
provisions of federal law if the dispute falls within the exclusive jurisdiction of the federal courts). The reference proceeding shall be conducted pursuant to and in accordance with the provisions of California Code of Civil Procedure §§ 638
through 645.1, inclusive. The private judge shall have the power, among others, to grant provisional relief, including without limitation, entering temporary restraining orders, issuing preliminary and permanent injunctions and appointing
receivers. All such proceedings shall be closed to the public and confidential and all records relating thereto shall be permanently sealed. If during the course of any dispute, a party desires to seek provisional relief, but a judge has not
been appointed at that point pursuant to the judicial reference procedures, then such party may apply to the Court for such relief. The proceeding before the private judge shall be conducted in the same manner as it would be before a court under
the rules of evidence applicable to judicial proceedings. The parties shall be entitled to discovery which shall be conducted in the same manner as it would be before a court under the rules of discovery applicable to judicial proceedings. The
private judge shall oversee discovery and may enforce all discovery rules and orders applicable to judicial proceedings in the same manner as a trial court judge. The parties agree that the selected or appointed private judge shall have the
power to decide all issues in the action or proceeding, whether of fact or of law, and shall report a statement of decision thereon pursuant to California Code of Civil Procedure § 644(a). Nothing in this paragraph shall limit the right of any
party at any time to exercise self-help remedies, foreclose against collateral, or obtain provisional remedies. The private judge shall also determine all issues relating to the applicability, interpretation, and enforceability of this
paragraph. The parties agree that time is of the essence in conducting the referenced proceedings. The parties shall promptly and diligently cooperate with one another and the referee, and shall perform such acts as may be necessary to obtain
prompt and expeditious resolution of the dispute or controversy in accordance with the terms hereof. The costs of any such reference proceeding shall be borne equally by the parties.
12. GENERAL PROVISIONS.
12.1. Successors and Assigns. This Agreement shall bind and inure to the benefit of the respective successors and permitted assigns of each of the parties and shall bind all persons
who become bound as a debtor to this Agreement; provided, however, that neither this Agreement nor any rights hereunder may be assigned by any Loan Party without Bank's prior written consent, which consent may be granted or
withheld in Bank's sole discretion. Bank shall have the right without the consent of or notice to any Loan Party to sell, transfer, negotiate, or grant participation in all or any part of, or any interest in, Bank's obligations, rights and
benefits hereunder. If any portion of the Obligations are assigned or participated by Bank, Bank, as a non-fiduciary agent of Borrower shall maintain a register in the United States to record the names, addresses, and tax identification number
of each assignee and participant and right to principal and stated interest. No assignment of participation shall be effective unless recorded in such register. It is intended that such register be maintained such that the Loans are in
"registered form" for the purposes of the IRC.
12.2. Indemnification. The Loan Parties shall, jointly and severally, defend, indemnify and hold harmless Bank and its officers, employees, and agents (an "Indemnified Person")
against: (a) all obligations, demands, claims, and liabilities claimed or asserted by any other party in connection with the transactions contemplated by this Agreement or the Loan Documents; and (b) all losses or Bank Expenses in any way
suffered, incurred, or paid by Bank, its officers, employees and agents as a result of or in any way arising out of, following, or consequential to transactions among Bank and the Loan Parties whether under this Agreement, or otherwise (including
without limitation reasonable attorneys' fees and expenses), except for losses caused by an Indemnified Person's gross negligence or willful misconduct.
12.3. Time of Essence. Time is of the essence for the performance of all obligations set forth in this Agreement.
12.4. Severability of Provisions. Each provision of this Agreement shall be severable from every other provision of this Agreement for the purpose of determining the legal
enforceability of any specific provision.
12.5. Correction of Loan Documents. Bank may, with the prior consent of Borrower, correct patent errors and fill in any blanks in this Agreement and the other Loan Documents
consistent with the agreement of the parties.
12.6. Amendments in Writing, Integration. All amendments to or terminations of this Agreement or the other Loan Documents must be in writing signed by the parties. All prior
agreements, understandings, representations, warranties, and negotiations between the parties hereto with respect to the subject matter of this Agreement and the other Loan Documents, if any, are merged into this Agreement and the Loan Documents.
12.7. Counterparts. This Agreement and any other Loan Document and any amendments, renewals, extensions, modifications, or refinancings thereof may be executed in any number of
counterparts and by different parties on separate counterparts, each of which, when executed and delivered, shall be deemed to be an original, and all of which, when taken together, shall constitute but one and the same Agreement or Loan
Document, as applicable. The words "execution," "signed," "signature," "delivery," and words of like import in or relating to this Agreement or any Loan Document and the transactions contemplated hereby shall be deemed to include Electronic
Signatures (as defined below), deliveries or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a
paper-based recordkeeping system, as the case may be. As used herein, "Electronic Signatures" means any electronic symbol or process attached to, or associated with, any contract or other record and adopted by a person with the intent to sign,
authenticate or accept such contract or record. If any signature is delivered by facsimile transmission or by email delivery of a ".pdf" format data file, such signature shall create a valid and binding obligation of the party executing this
Agreement or any other Loan Document (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or ".pdf" signature page were an original hereof or thereof.
12.8. Survival. All covenants, representations and warranties made in this Agreement shall continue in full force and effect so long as any Obligations remain outstanding or Bank
has any obligation to make any Credit Extension to the Loan Parties. The obligations of Borrower to indemnify Bank with respect to the expenses, damages, losses, costs and liabilities described in Section 12.2 shall survive until all applicable
statute of limitations periods with respect to actions that may be brought against Bank have run.
12.9. Effect of Amendment and Restatement. This Agreement is intended to and does completely amend and restate, without novation, the Original Agreement, which shall be terminated
on the Closing Date of this Agreement. All security interests granted by Borrower under the Original Agreement are hereby confirmed and ratified and shall continue to secure all Obligations under this Agreement.
12.10. Confidentiality. In handling any Confidential Information, Bank and all employees and agents of Bank shall keep such information confidential and exercise the same degree of
care that Bank exercises with respect to its own proprietary information to maintain the confidentiality of any non-public information except that disclosure of such Confidential Information may be made (i) to the subsidiaries or Affiliates of
Bank in connection with their present or prospective business relations with the Loan Parties, (ii) subject to an acknowledgment and agreement by the relevant recipient that the Confidential Information is being disseminated on a confidential
basis (on substantially the terms set forth in this paragraph or as otherwise reasonably acceptable to Borrower and Bank) to prospective transferees or purchasers of any interest in the Loans, (iii) as required by law, regulations, rule or order,
subpoena, judicial order or similar order, (iv) as may be required in connection with the examination, audit or similar investigation of Bank, (v) to Bank's accountants, auditors and regulators, and (vi) as Bank may reasonably determine in
connection with the enforcement of any remedies hereunder. For purposes of this Agreement, "Confidential Information" means all non-public information regarding the Loan Parties and their Subsidiaries, their operations, assets, and existing and
contemplated business plans; provided that Confidential Information hereunder shall not include information that either: (a) (i) is in the public domain or (ii) is in the knowledge or possession of Bank when disclosed by any Loan Party
or any of their respective Subsidiaries to Bank, or (iii) becomes part of the public domain after disclosure to Bank through no fault of Bank; or (b) is disclosed to Bank by a third party, provided Bank does not have actual knowledge that such
third party is prohibited from disclosing such information. Notwithstanding the foregoing, the Loan Parties hereby consent to Bank's publishing a tombstone or similar advertising material relating to the financial transaction contemplated by
this Agreement.
12.11. Patriot Act. To help the government fight the funding of terrorism and money laundering activities, Federal law requires all financial institutions to obtain, verify, and
record information that identifies each person who opens an account, all in compliance with the Patriot Act. WHAT THIS MEANS FOR YOU: when you open an account, we will ask your name, address, date of birth, and other information that will
allow us to identify you. We may also ask to see your driver's license or other identifying documents. Bank hereby notifies each Loan Party that pursuant to the requirements of the USA PATRIOT ACT (Title III of Pub. L. 107-56 (signed into law
October 26, 2001)) (the "PATRIOT Act"), it is required to obtain, verify and record information that identifies each Loan Party, which information includes the name and address of each Loan Party and other information that will allow Bank
to identify each Loan Party in accordance with the PATRIOT Act. Each Loan Party shall, promptly following a request by Bank, provide all documentation and other information that Bank reasonably requests in order to comply with its ongoing
obligations under applicable "know your customer" and anti-money laundering rules and regulations, including the PATRIOT Act. Bank will require each Loan Party to provide identifying information about each beneficial owner or individuals who
have significant responsibility to control, manage or direct the legal entity.
12.12. Reinstatement. This Agreement shall remain in full force and effect and continue to be effective should any petition be filed by or against Loan Party for liquidation or
reorganization, should Loan Party become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of any Loan Party's assets, and shall continue to be effective or
be reinstated, as the case may be, if at any time payment and performance of the Obligations, or any part thereof, is, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee of the
Obligations, whether as a "voidable preference", "fraudulent conveyance", or otherwise, all as though such payment or performance had not been made. In the event that any payment, or any part thereof, is rescinded, reduced, restored or returned,
the Obligations shall be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned and Bank's Lien security such Obligations shall be effective, revived and remain in full force and effect, in each
case as if such payment or performance had not been made. If, prior to any of the foregoing, Bank's Lien shall have been released or terminated or any provision of this Agreement shall have been terminated or cancelled, then Bank's Liens, or
such provision of this Agreement, shall be reinstated in full force and effect and such prior release, termination, cancellation or surrender shall not diminish, release, discharge, impair or otherwise affect the obligation of any Loan Party in
respect of such liability or any Collateral securing such liability. This provision shall survive the termination of this Agreement and Payment in Full of the Obligations.
12.13. Acknowledgment Regarding Any Supported QFCs. To the extent that the Loan Documents provide support, through a guarantee or otherwise, for any Hedging Agreement or any other
agreement or instrument that is a QFC (such support, "QFC Credit Support" and each such QFC a "Supported QFC"), the parties acknowledge and agree as follows with respect to the resolution power of the Federal Deposit Insurance Corporation under
the Federal Deposit Insurance Act and Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act (together with the regulations promulgated thereunder, the "U.S. Special Resolution Regimes") in respect of such Supported QFC and QFC
Credit Support (with the provisions below applicable notwithstanding that the Loan Documents and any Supported QFC may in fact be stated to be governed by the laws of the State of New York or of the United States or any other state of the United
States):
(a) In the event a Covered Entity that is party to a Supported QFC (each, a "Covered Party") becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of such
Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation in or under such Supported QFC and such QFC Credit Support, and any rights in property securing such Supported QFC or such QFC Credit Support) from such
Covered Party will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if the Supported QFC and such QFC Credit Support (and any such interest, obligation and rights in property) were
governed by the laws of the United States or a state of the United States. In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under the
Loan Documents that might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against such Covered Party are permitted to be exercised to no greater extent than such Default Rights could be exercised under the
U.S. Special Resolution Regime if the Supported QFC and the Loan Documents were governed by the laws of the United States or a state of the United States.
[Balance of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first above written.
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PHENOMEX INC., a Delaware corporation
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By:
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/s/ Scott Chaplin
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Name:
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Scott Chaplin
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Title:
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Chief Legal Officer
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ISOPLEXIS CORPORATION, a Delaware corporation
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By:
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/s/ Scott Chaplin
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Name:
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Scott Chaplin
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Title:
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Chief Legal Officer
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EAST WEST BANK, a California banking corporation
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By:
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/s/ Eric Watson
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Name:
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Eric Watson
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Title:
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Duly Authorized Signatory
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EXHIBIT A
DEFINITIONS
"Accounts" means all presently existing and hereafter arising accounts, contract rights, payment intangibles and all other forms of obligations owing to any Loan Party arising out of the sale or
lease of goods (including, without limitation, the licensing of software and other technology) or the rendering of services by any Loan Party and any and all credit insurance, guaranties, and other security therefor, as well as all merchandise
returned to or reclaimed by any Loan Party and any Loan Party's Books relating to any of the foregoing.
"Affiliate" means, with respect to any Person, any Person that owns or controls directly or indirectly such Person, any Person that controls or is controlled by or is under common control with such
Person, and each of such Person's senior executive officers, directors, and partners.
"Agreement" has the meaning assigned in the Preamble.
"Amortization Date" means April 1, 2025; provided that (x) if the First Extended Interest-Only Period occurs, the Amortization Date shall mean October 1, 2025; and (y) if the Second
Extended Interest-Only Period occurs, the Amortization Date shall mean April 1, 2026.
"Assignment of Deposit" means that certain Assignment of Deposit dated as of March 21, 2023, entered into by Borrower as depositor in favor of Bank.
"Bank Controlled Account" has the meaning assigned in Section 6.11.
"Bank Expenses" means, without duplication, all reasonable and documented out-of-pocket costs or expenses (including reasonable and documented out-of-pocket attorneys' fees and expenses) incurred
in connection with the preparation, negotiation, administration, and enforcement of the Loan Documents; reasonable Collateral audit fees; and Bank's reasonable and documented out-of-pocket attorneys' fees and expenses incurred in amending,
enforcing or defending the Loan Documents (including fees and expenses of appeal), incurred before, during and after an Insolvency Proceeding, whether or not suit is brought.
"Bank Product Collateralization" means providing cash collateral to be held by Bank for its benefit or the benefit of any Affiliate of Bank providing Bank Products (other than to the extent of any
Hedging Obligations) in an amount reasonably determined by Bank as sufficient to satisfy the reasonably estimated credit exposure, operational risk and processing risk with respect to the then-existing Bank Product Obligations (other than Hedging
Obligations).
"Bank Products" means any service or facility extended to any Loan Party by Bank or any affiliate of Bank, or procured for such Loan Party from any third party by Bank or any affiliate of Bank by
means of a full-recourse agreement or other credit support extended to such third party including: (a) commercial credit cards and credit card processing services, (b) debit cards, (c) commercial purchase cards, (d) ACH transactions, (e) cash
management services, including controlled disbursement, accounts or services, (g) letters of credit, or (h) Hedging Agreements.
"Beneficial Ownership Certification" means a certification regarding beneficial ownership required by the Beneficial Ownership Regulation, which certification shall be substantially in form and
substance satisfactory to Bank.
"Beneficial Ownership Regulation" means 31 C.F.R. Section 1010.230.
"BHC Act Affiliate" of a party means an "affiliate" (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.
"Borrower" has the meaning assigned in the Preamble.
"Borrower State" means the state under whose laws Borrower is organized, which is Delaware as of the Closing Date.
"Borrower's Books" means all of Borrower's books and records including: ledgers; records concerning Borrower's assets or liabilities, the Collateral, business operations or financial condition;
and all computer programs, or tape files, and the equipment, containing such information.
"BSA" has the meaning assigned in Section 6.14.
"Business Day" means any day that is not a Saturday, Sunday, or other day on which commercial banks in the Los Angeles, California are authorized or required to close.
"Capital Lease Obligation" means, at the time any determination thereof is to be made, the amount of the liability in respect of a Capital Lease that would at such time be required to be
capitalized and reflected as a liability on a balance sheet (excluding the footnotes thereto) prepared in accordance with GAAP.
"Capital Leases" means, subject to Section 1.2, as applied to any Person, any lease of any property (whether real, personal or mixed) by that Person as lessee that, in conformity with GAAP, is or
should be accounted for as a capital lease on the balance sheet of that Person; provided, that for the avoidance of doubt, the amount of obligations attributable to any Capital Lease shall be the amount thereof accounted for as a liability
in accordance with GAAP.
"Capital Stock" means (i) with respect to any Person that is a corporation, any and all shares, interests or equivalents in capital stock (whether voting or nonvoting, and whether common or
preferred) of such corporation, and (ii) with respect to any Person that is not a corporation, any and all partnership, membership, limited liability company or other equity interests of such Person; and in each case, any and all rights, warrants
or options to purchase or acquire any of the foregoing and any other security or instrument representing, convertible into or exchangeable for any of the foregoing.
"Cash" means unrestricted cash and cash equivalents.
"Cash Burn" means, for any applicable measuring period, the sum of (i) EBITDA, plus (ii) the aggregate amount of capital expenditures, in each case as measured on an average trailing six (6) month
basis.
"CFC" means any "controlled foreign corporation" within the meaning of Section 957 of the IRC in which any Loan Party or direct or indirect owner of a Loan Party is a "United States shareholder"
within the meaning of Section 951(b) of the IRC.
"Change in Control" shall mean a transaction (other than (i) an initial public offering or (ii) a bona fide equity financing or series of financings) in which any "person" or "group" (within the
meaning of Section 13(d) and 14(d)(2) of the Securities Exchange Act of 1934) becomes the "beneficial owner" (as defined in Rule 13d-3 under the Securities Exchange Act of 1934), directly or indirectly, of a sufficient number of shares of all
classes of stock then outstanding of Borrower ordinarily entitled to vote in the election of directors, empowering such "person" or "group" to elect a majority of the board of directors of Borrower, who did not have such power before such
transaction.
"Closing Date" means the date on which the Term Loan is advanced to Borrower.
"Closing Date Term Loan" has the meaning assigned in Section 2.1(b)(i).
"Code" means the Uniform Commercial Code as in effect from time to time in the State of New York or any other state the laws of which are required to be applied in connection with the creation or
perfection of security interests granted hereunder.
"Collateral" means the property described on Exhibit B attached hereto and all Negotiable Collateral to the extent not described in Exhibit B; provided that the Collateral
shall not include any Excluded Asset.
"Collections" means all payments from or on behalf of an account debtor with respect to a Loan Party's rights to payment arising in the ordinary course of such Loan Party's business, including
accounts, chattel paper, instruments, contract rights, documents, general intangibles, letters of credit, drafts, and bankers' acceptances.
"Commodity Exchange Act" means the Commodity Exchange Act (7 U.S.C. § 1 et seq.).
"Connection Income Taxes" means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise taxes or branch profits taxes.
"Contingent Obligation" means, as applied to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to (i) any indebtedness, lease, dividend, letter of
credit or other obligation of another, including, without limitation, any such obligation directly or indirectly guaranteed, endorsed, co-made or discounted or sold with recourse by that Person, or in respect of which that Person is otherwise
directly or indirectly liable; (ii) any obligations with respect to undrawn letters of credit, corporate credit cards or merchant services issued for the account of that Person; and (iii) all obligations arising under any interest rate, currency or
commodity swap agreement, interest rate cap agreement, interest rate collar agreement, or other agreement or arrangement designated to protect a Person against fluctuation in interest rates, currency exchange rates or commodity prices; provided,
however, that the term "Contingent Obligation" shall not include endorsements for collection or deposit in the ordinary course of business. The amount of any Contingent Obligation shall be deemed to be an amount equal to the stated or
determined amount of the primary obligation in respect of which such Contingent Obligation is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by such Person in good faith; provided,
however, that such amount shall not in any event exceed the maximum amount of the obligations under the guarantee or other support arrangement.
"Copyrights" means any and all copyright rights, copyright applications, copyright registrations and like protections in each work or authorship and derivative work thereof, whether published or
unpublished and whether or not the same also constitutes a trade secret, now or hereafter existing, created, acquired or held.
"Covenant Testing Period" means a period commencing on the last day of the quarter of Borrower most recently ended prior to a Covenant Trigger Event for which the Loan Parties are required to
deliver to Agent quarterly or annual financial statements pursuant to this Agreement and continuing at all times thereafter.
"Covenant Trigger Event" if at any time the aggregate amount of unrestricted cash and cash equivalents of the Loan Parties and their Subsidiaries in Deposit Accounts and/or Securities Accounts of
such Loan Parties and their Subsidiaries at Bank is less than One Hundred Million Dollars ($100,000,000).
"Covered Entity" means any of the following:
(i) a "covered entity" as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);
(ii) a "covered bank" as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or
(iii) a "covered FSI" as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
"Covered Party" has the meaning set forth in Section 12.14.
"Credit Extension" means the Term Loan or any other extension of credit by Bank to or for the benefit of Borrower hereunder.
"Default Right" has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
"Dollars," "dollars" or use of the sign "$" means only lawful money of the United States and not any other currency, regardless of whether that currency uses the "$" sign to denote its currency or
may be readily converted into lawful money of the United States.
"Domestic Subsidiary" means any subsidiary of Borrower incorporated or organized under the laws of the US, any state thereof or the District of Columbia.
"Disclosure Schedules" means the Disclosure Schedules dated as of the Closing Date and delivered to Bank pursuant to this Agreement.
"EBITDA" means, for any period, the sum of the Loan Parties' net income after taxes for such period (excluding extraordinary gains) (it being understood, for the avoidance of doubt, that
capitalized software expenses shall not reduce net income to the extent that they are capitalized); plus, to the extent deducted in determining net income and without duplication, (a) Interest Expense for such period, debt discount, fees, charges
and related expenses, including capitalized interest; (b) income tax expense for such period; (c) depreciation and amortization for such period; (d) non-cash expenses relating to stock based compensation and gains or losses on equity revaluations;
and (e) restructuring expenses, including but not limited to transaction and integration related expenses, legal settlements, and one-time severance for such period, in each case, with respect to this clause (e), not to exceed the amount set forth
for such period in Borrower's projections delivered to Bank in writing for such period prior to the Closing Date; plus or minus any other non-cash charges or gains which have been subtracted or added in calculating net income after taxes for such
period, all on a consolidated basis; provided, however, EBITDA shall not include the results of any foreign Subsidiary of any Loan Party except to the extent that such foreign Subsidiary has repatriated its net income to Borrower or
a Guarantor.
"Embargoed Person" means (a) any country or territory that is the target of comprehensive, country- or territory-wide a sanctions program administered by OFAC or (b) any Person that (i) is or is
owned or controlled by a Person publicly identified on the most current list of "Specially Designated Nationals and Blocked Persons" published by OFAC, (ii) is the target of a sanctions program or designated on a sanctions list (A) administered by
OFAC, or (B) under the Iran Sanctions Act, Section 1245 of the National Defense Authorization Act for Fiscal Year 2012 or Executive Order 13590 "Authorizing the Imposition of Certain Sanctions with respect to the Provision of Services, Technology
or Support for Iran's Energy and Petrochemical Sectors," effective November 21, 2011 or (iii) resides, is organized or chartered, or has a place of business in a country or territory that is the subject of a comprehensive, country- or
territory-wide sanctions program administered by OFAC.
"Environmental Laws" means all laws, rules, regulations, orders and the like issued by any federal state, local foreign or other governmental or quasi-governmental authority or any agency
pertaining to the environment or to any hazardous materials or wastes, toxic substances, flammable, explosive or radioactive materials, asbestos or other similar materials.
"Equipment" means all present and future machinery, equipment, tenant improvements, furniture, fixtures, vehicles, tools, parts and attachments in which Borrower has any interest.
"ERISA" means the Employee Retirement Income Security Act of 1974.
"ERISA Affiliate" means any Person who for purposes of Title IV of ERISA is deemed at any relevant time to be a single employer or otherwise aggregated with any Loan Party under Section 414 of the
IRC or Section 4001 of ERISA.
"Event of Default" has the meaning assigned in Article 8.
"Exchange Act" means the Securities Exchange Act of 1934.
"Excluded Account" means any Deposit Account (a) which is an escrow, fiduciary, trust or similar account, (b) holding cash collateral for a third party (other than Borrower or any Subsidiary), (c)
used by any Loan Party exclusively for disbursements and/or payments of payroll in the ordinary course of business, (d) which is a zero balance account or (e) which has a balance of less than One Hundred Thousand Dollars ($100,000) individually or
Five Hundred Thousand Dollars ($500,000) in the aggregate for all such Deposit Accounts that are Excluded Accounts pursuant to this clause (e).
"Excluded Assets" means assets to the extent that (i) any such asset or property is a General Intangible that is non-assignable by its terms without the consent (that has not been obtained) of
the licensor thereof or another party (that is not a Loan Party or an Affiliate of a Loan Party) but only to the extent such prohibition on the creation of a Lien in favor of Bank is enforceable under applicable law and is non rendered ineffective
by applicable law (including, without limitation, Sections 9-406, 9-407, 9-408 or 9-409 of the Code), (ii) the granting of a security interest therein is contrary to the Requirements of Law, (iii) any such assets or property constitutes equity
interests of Persons (other than Shares), (iv) any such assets or property constitutes Intellectual Property (except to the extent (and solely for so long as) such Intellectual Property is required constitute Collateral pursuant to Section 6.7(a)),
(v) any such assets or property constitutes Excluded Accounts, (vi) any intent-to-use (or similar) Trademark application prior to the filing with, and acceptance by, the U.S. Patent and Trademark Office of a "Statement of Use", "Declaration of
Use", "Amendment to Allege Use" or similar filing with respect thereto, only to the extent, if any, that, and solely during the period if any, in which, the grant of a security interest therein would impair the validity or enforceability of such
intent-to-use (or similar) Trademark application (or any Trademark registration resulting therefrom) under applicable Requirements of Law, and (vi) Bank and Borrower have reasonably determined that the cost, burden, difficulty or consequence
(including any effect on the ability of the relevant Loan Party to conduct its operations and business in the ordinary course of business) of obtaining or perfecting a security interest therein outweighs, or is excessive in light of, the practical
benefit of a security interest to Bank afforded thereby; provided that (x) Excluded Assets shall not include any Proceeds of any item of General Intangibles and (y) any item that at any time ceases to satisfy the criteria for Excluded
Assets (whether as a result of the applicable Loan Party obtaining any necessary consent, any change in Requirement of Law or otherwise) shall no longer constitute an Excluded Asset.
"Excluded Swap Obligation" means, with respect to any Loan Party, any Swap Obligation if, and to the extent that, all or a portion of the guarantee of such Loan Party of, or the grant by such Loan
Party of a security interest to secure, such Swap Obligation (or any guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or
official interpretation of any thereof) by virtue of such Loan Party's failure for any reason to constitute an "eligible contract participant" as defined in the Commodity Exchange Act at the time the guarantee of or grant of security interest by
such Loan Party becomes effective with respect to such related Swap Obligation (such determination being made after giving effect to any applicable keepwell, support, or other agreement for the benefit of the applicable Loan Party).
"Excluded Taxes" means, with respect to Bank or any other recipient of any payment to be made by or on account of any obligation of any Loan Party hereunder or under any other Loan Document, (a)
any taxes on or measured by overall net income (however denominated), franchise taxes (in lieu of net income taxes) and branch profits taxes, (i) in each case imposed on it by the jurisdiction (or any political subdivision thereof) under the laws
of which such recipient is organized or in which its principal office is located or, in the case of Bank, in which its applicable lending office is located or (ii) that are Other Connection Taxes, (b) in the case of Bank, U.S. federal withholding
taxes imposed on amounts payable to or for the account of Bank with respect to an applicable interest in the Obligations pursuant to applicable law in effect on the date on which (i) Bank acquires such interest in the Obligations or (ii) Bank
changes its lending office (other any change made at the request of any Loan Party), except in each case to the extent that, pursuant to Section 2.7, amounts with respect to such taxes were payable either to the assignor immediately before the
assignee became a party hereto or to Bank (or an applicable assignee) immediately before it changed its lending office, (c) Taxes solely attributable to such recipient’s failure to comply with Section 2.7(f) and (d) any U.S. federal withholding
taxes imposed under FATCA.
"Extraordinary Receipt" means any cash payments received by any Loan Party not in the ordinary course of business (and not consisting of proceeds described in Section 2.8(a), (b) or (c)) consisting
of net cash proceeds of (i) judgments or settlements received in connection with any cause of action or claim (other than with respect to reimbursement of third-party claims and other than with respect to a
certain customer payment dispute disclosed to Bank prior to the Closing Date), (ii) indemnity payments (other than to the extent such indemnity payments are payable to a Person that is not a Subsidiary of any Loan Party), and (iii) any
purchase price adjustment received in connection with any acquisition agreement.
"FATCA" means Sections 1471 through 1474 of the IRC, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply
with), any current or future regulations or official interpretations thereof and any agreement entered into pursuant to Section 1471(b)(1) of the IRC.
"First Extended Interest-Only Period" means Borrower's EBITDA for the fiscal year ending December 31, 2024 is not less than $9,985,992.63 as reflected in the applicable Compliance Certificate
received by Bank in accordance with the requirements of this Agreement.
"Foreign Subsidiary" means any existing or future direct or indirect subsidiary of Borrower that is not a Domestic Subsidiary.
"FSHCO" means any direct or indirect Domestic Subsidiary that has no material assets other than the Capital Stock or Capital Stock and Indebtedness of one or more CFC; provided that any
such Domestic Subsidiary that solely owns Capital Stock or Capital Stock and Indebtedness of Protected CFCs shall not be treated as a FSHCO.
"GAAP" means generally accepted accounting principles in the United States of America, consistently applied, as in effect from time to time.
"Governmental Authority" means the government of the United States or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality,
regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra national bodies such as the European
Union or the European Central Bank).
"Guarantor" means IsoPlexis and each other Person that now or in the future agrees to guaranty the Obligations.
"Guaranty" means that certain Continuing Unconditional Guaranty, dated as of the date hereof, among the Loan Parties in favor of Bank or any other guaranty of all or any portion of the Obligations
provided in writing by a Subsidiary of Borrower.
"Hazardous Materials" means any hazardous, toxic or dangerous substance, materials and wastes, including hydrocarbons (including naturally occurring or man-made petroleum and hydrocarbons),
flammable explosives, asbestos, urea formaldehyde insulation, radioactive materials, biological substances, polychlorinated biphenyls, pesticides, herbicides and any other kind and/or type of pollutants or contaminants (including materials which
include hazardous constituents), sewage, sludge, industrial slag, solvents and/or any other similar substances, materials, or wastes and including any other substances, materials or wastes that are or become regulated under any Environmental Law
(including any that are or become classified as hazardous or toxic under any Environmental Law).
"Hedging Agreement" means any interest rate, currency or commodity swap agreement, cap agreement or collar agreement, and any other agreement or arrangement designed to protect a Person against
fluctuations in interest rate, currency exchange rates or commodity prices.
"Hedging Obligation" means, with respect to any Person, any liability of such Person under any Hedging Agreements. The amount of any Person's obligations in respect of any Hedging Obligation shall
be deemed to be the net obligations that would be reflected in the financial statements of such Person in accordance with GAAP.
"Indebtedness" means (a) all indebtedness for borrowed money or the deferred purchase price of property or services, including without limitation reimbursement and other obligations with respect to
surety bonds and letters of credit, (b) all obligations evidenced by notes, bonds, debentures or similar instruments, (c) Capital Lease Obligations, (d) all Capital Stock of such Person subject to mandatory repurchase or redemption obligation
applicable to such Person at any time prior to the date that is ninety (90) days after the final maturity date of the Obligations, other than such mandatory repurchase or redemption obligations that are (i) at the sole option of such Person or (ii)
for Capital Stock that does not contain such mandatory repurchase or redemption obligations, and (e) all Contingent Obligations, if any.
"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 of any Loan Party under any Loan Document and (b)
to the extent not otherwise described in (a), Other Taxes.
"Insolvency Proceeding" means any proceeding commenced by or against any Person or entity under any provision of the United States Bankruptcy Code, or under any other bankruptcy or insolvency law,
including assignments for the benefit of creditors, formal or informal moratoria, compositions, extension generally with its creditors, or proceedings seeking reorganization, arrangement, or other relief.
"Intellectual Property" means all of Borrower's right, title, and interest in and to the following:
(a) Copyrights, Trademarks and Patents;
(b) Any and all trade secrets, and any and all intellectual property rights in computer software and computer software products now or hereafter existing, created, acquired or held;
(c) Any and all design rights which may be available to Borrower now or hereafter existing, created, acquired or held;
(d) Any and all claims for damages by way of past, present and future infringement of any of the rights included above, with the right, but not the obligation, to sue for and collect such
damages for said use or infringement of the intellectual property rights identified above;
(e) All licenses or other rights to use any of the Copyrights, Patents or Trademarks, and all license fees and royalties arising from such use to the extent permitted by such license or
rights; and
(f) All amendments, renewals and extensions of any of the Copyrights, Trademarks or Patents.
"Interest Expense" means, for any period, for Borrower on a consolidated basis, the sum of (a) all interest, premium payments, debt discount, fees, charges and related expenses (excluding closing
costs associated with this transaction) in connection with borrowed money (including capitalized interest) or in connection with the deferred purchase price of assets during such period, plus (b) all payments made under interest rate Hedging
Agreements during such period to the extent not included in clause (a) of this definition, including all premium payments and capitalized interest, minus (c) all payments received under interest rate Hedging Agreements during such period, plus (d)
the portion of rent expense with respect to such period under capital leases that is treated as interest in accordance with GAAP.
"Inventory" means all present and future inventory in which any Loan Party has any interest.
"Investment" means any beneficial ownership of (including stock, partnership or limited liability company interest or other securities) any Person, or any loan, advance or capital contribution to
any Person.
"Investors' Rights Agreement" means that certain Sixth Amended and Restated Investors' Rights Agreement, dated as of December 30, 2020, by and among IsoPlexis and each of the investors listed on
Schedule A thereto
"IRC" means the Internal Revenue Code of 1986.
"Irrevocable Proxy" has the meaning assigned to such term in Section 4.4.
"Lien" means any security interest, mortgage, deed of trust, pledge, lien, charge, judgment lien, collateral assignment, encumbrance, title retention agreement or analogous instrument or device,
including the interest of each lessor under any capitalized lease and the interest of any bondsman under any payment or performance bond, in, of or on any assets or properties of a Person, whether now owned or subsequently acquired and whether
arising by agreement or operation of law, all whether perfected or unperfected, in each case, in the nature of collateral security.
"Loan Documents" means, collectively, this Agreement, the Guaranty, any promissory note executed by Borrower in favor of Bank evidencing the Obligations, each control agreement with respect to any
Deposit Account or Securities Account, the Assignment of Deposit, each and any other document, instrument or agreement delivered in connection with the foregoing.
"Loan Party" means Borrower and each Guarantor, individually, and "Loan Parties" means Borrower and all Guarantors, collectively.
"Loan Party's Books" means all of each Loan Party's books and records including: ledgers; records concerning such Loan Party's assets or liabilities, the Collateral, business operations or
financial condition; and all computer programs, or tape files, and the equipment, containing such information.
"Material Adverse Effect" means (i) a material impairment in the perfection or priority of Bank's Lien in the Collateral or in the value of such Collateral; (b) a material adverse change in the
business, operations, or condition (financial or otherwise) of Borrower; or (c) a material impairment of the prospect of repayment of any portion of the Obligations.
"Multiemployer Plan" means a multiemployer plan (as defined in Section 4001(a)(3) of ERISA) to which any Loan Party or any ERISA Affiliate contributes or is obligated to contribute.
"Negotiable Collateral" means all of each Loan Party's present and future letters of credit of which it is a beneficiary, drafts, instruments (including promissory notes), securities, Documents,
documents of title, and Chattel Paper, and each Loan Party's Books relating to any of the foregoing.
"Obligations" means all debt, principal, interest, Bank Expenses and other amounts owed to Bank by any Loan Party pursuant to this Agreement or any other agreement (including in respect of Bank
Products and Hedging Obligations), whether absolute or contingent, due or to become due, now existing or hereafter arising, including any interest that accrues after the commencement of an Insolvency Proceeding and including any debt, liability, or
obligation owing from Borrower to others that Bank may have obtained by assignment or otherwise; provided, however, that Obligations shall not include any Excluded Swap Obligation.
"OFAC" means the United States Office of Foreign Assets Control.
"Open Source Software" means any software that constitutes open source, public source or Intellectual Property, or any modification or derivative thereof, including any version of any software
licensed pursuant to the GNU General Public License, the Affero General Public License, the GNU Lesser General Public License, the Eclipse Public License, the Common Public License, the Mozilla Public License, or any other license identified as an
open source license by the Open Source Initiative (www.opensource.org).
"Original Agreement" has the meaning assigned in the Recitals.
"Original Closing Date" has the meaning assigned in the Recitals.
"Original Term Loan" has the meaning assigned in Section 2.1(b)(i).
"Other Connection Taxes" means, with respect to Bank or any other recipient of any payment to be made by or on account of any obligation of any Loan Party hereunder or under any other Loan
Document, 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 Obligation or Loan Document).
"Other Taxes" means all present or future stamp, intangible or documentary taxes or any other excise or property taxes, charges or similar levies arising from any payment made hereunder or under
any other Loan Document or from the execution, delivery or enforcement of, or otherwise with respect to, this Agreement or any other Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment by Bank
of its interest in an Obligation after the date hereof, other than any such assignment made at the request of any Loan Party or during an Event of Default described in Section 8.1, 8.4., 8.5, or 8.10.
"Outstanding Original Term Loan Balance" has the meaning assigned in Section 2.1(b)(i).
"Paid in Full" "Pay in Full" or "Payment in Full" means, the payment in full in immediately available funds of all Obligations (other than (i) contingent indemnification obligations to the extent
no claim giving rise thereto has been asserted, (ii) in the case of Hedging Obligations, the termination of the applicable Hedging Agreement and payment in full of any termination and other amounts then applicable, except to the extent of any
Hedging Obligations that, at such time, are allowed by the applicable Person to whom such Hedging Obligations are owing to remain outstanding without being required to be terminated or repaid, or such other arrangements reasonably acceptable to the
applicable Person providing such Hedging Obligations have been made, and (iii) in the case of Obligations in respect of Bank Products (other than Hedging Obligations), providing Bank Product Collateralization, except to the extent either (1) such
Bank Products are terminated, all payments in respect thereof are made at such time and there are no further obligations outstanding with respect thereto or (2) such Bank Products are allowed, at such time, by Bank or its Affiliate providing such
Bank Products, to remain outstanding without being required to be repaid or subject to Bank Product Collateralization).
"Patents" means all patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part
of the same.
"PBGC" means the Pension Benefit Guaranty Corporation.
"Pension Plan" means a pension plan (as defined in Section 3(2) of ERISA) maintained for employees of any Loan Party or any ERISA Affiliate and covered by Title IV of ERISA.
"Periodic Payments" means all installments or similar recurring payments that any Loan Party may now or hereafter become obligated to pay to Bank pursuant to the Loan Documents.
"Permitted Indebtedness" means:
(a) Indebtedness of the Loan Parties in favor of Bank arising under this Agreement or any other Loan Document;
(b) Indebtedness existing on the Closing Date and disclosed in the Schedule P-1 of the Disclosure Schedules;
(c) Indebtedness not to exceed Three Hundred Thousand Dollars ($300,000) in the aggregate in any fiscal year of the Loan Parties or any of their Subsidiaries secured by a lien described in
clause (c) of the defined term "Permitted Liens," provided such Indebtedness does not exceed the lesser of the cost or fair market value of the equipment financed with such Indebtedness;
(d) Subordinated Debt;
(e) Indebtedness not to exceed Three Hundred Thousand Dollars ($300,000) in the aggregate incurred under corporate credit cards in the ordinary course of business;
(f) Permitted Intercompany Indebtedness;
(g) Indebtedness to trade creditors incurred in the ordinary course of business;
(h) Indebtedness incurred as a result of endorsing negotiable instruments received in the ordinary course of business;
(i) Letters of credit with Bank incurred in the ordinary course of business in connection with the leasing of real property in an aggregate amount not to exceed One Hundred Fifty Thousand
Dollars ($150,000);
(j) Additional unsecured Indebtedness not to exceed Two Hundred Fifty Thousand Dollars ($250,000) in the aggregate at any time; and
(k) Extensions, refinancings and renewals of any items of Permitted Indebtedness, provided that the principal amount is not increased or the terms modified to impose more burdensome terms
upon Borrower or its Subsidiary, as the case may be.
"Permitted Intercompany Indebtedness" means loans or advances made in cash by (a) Borrower to any other Loan Party, (b) any Loan Party to Borrower or any other Loan Party, (c) a Subsidiary of
Borrower that is not a Loan Party to another Subsidiary of Borrower that is not a Loan Party or to a Loan Party, and (d) any Loan Party to another Subsidiary of Borrower that is not a Loan Party so long as all such loans made pursuant to this
clause (d) shall not exceed Four Million Dollars ($4,000,000) in the aggregate outstanding at any time; provided, that, with respect to all such Indebtedness, at upon the request of Bank at any time, such Indebtedness shall be evidenced by
a promissory note having terms reasonably satisfactory to Bank, the sole originally-executed counterparts of which shall (to the extent the lender is a Loan Party) be pledged and delivered to Bank, as security for the Obligations, and the
obligations under such promissory note shall be subordinated to the Obligations in a manner reasonably satisfactory to Bank.
"Permitted Intercompany Investments" means capital contributions made in cash by (a) Borrower to any other Loan Party, (b) any Loan Party to Borrower or any other Loan Party, (c) a Subsidiary of
Borrower that is not a Loan Party to another Subsidiary of Borrower that is not a Loan Party or to a Loan Party, and (d) any Loan Party to another Subsidiary of Borrower that is not a Loan Party so long as all such capital contributions made
pursuant to this clause (d) shall not exceed Four Million Dollars ($4,000,000) in any fiscal year.
"Permitted Investment" means:
(a) Investments existing on the Closing Date disclosed in Section P-2 of the Disclosure Schedule;
(b) (i) marketable direct obligations issued or unconditionally guaranteed by the United States of America or any agency or any State thereof maturing within two (2) years from the date of
acquisition thereof, (ii) commercial paper maturing no more than two hundred seventy (270) from the date of creation thereof and currently having rating of at least A-1 or P-1 from either Standard & Poor's Corporation or Moody's Investors
Service, (iii) Bank's certificates of deposit maturing no more than two (2) years from the date of investment therein, and (iv) Bank's money market accounts;
(c) repurchases of stock of Borrower from former officers, employees or directors of Borrower or any of its Subsidiaries under the terms of applicable repurchase agreements (i) in an
aggregate amount not to exceed Two Hundred Fifty Thousand Dollars ($250,000) in any fiscal year, provided that no Event of Default has occurred, is continuing or would exist after giving effect to the repurchases, or (ii) in any amount where the
consideration for the repurchase is the cancellation of indebtedness owed by such Persons to Borrower or any of its Subsidiaries regardless of whether an Event of Default exists;
(d) Investments accepted in connection with Permitted Transfers;
(e) Investments (i) arising as a result of Permitted Intercompany Indebtedness and Permitted Intercompany Investments, and (ii) in the form of beneficial ownership by Borrower or any of its
Subsidiaries of their respective Subsidiaries made on or prior to the Closing Date;
(f) Investments not to exceed One Hundred Thousand Dollars ($100,000) in the aggregate in any fiscal year consisting of (i) travel advances and employee relocation loans and other employee
loans and advances in the ordinary course of business, and (ii) loans to employees, officers or directors relating to the purchase of equity securities of Borrower pursuant to employee stock purchase plan agreements approved by Borrower's board of
directors;
(g) Investments (including debt obligations) received in connection with the bankruptcy or reorganization of customers or suppliers and in settlement of delinquent obligations of, and other
disputes with, customers or suppliers arising in the ordinary course of a Loan Party's (or any of their Subsidiaries') business;
(h) Investments consisting of notes receivable of, or prepaid royalties and other credit extensions, to customers and suppliers who are not Affiliates, in the ordinary course of business,
provided that this subparagraph (h) shall not apply to Investments of Borrower in any Subsidiary;
(i) joint ventures or strategic alliances in the ordinary course of business consisting of the non-exclusive licensing of technology, the development of technology or the providing of
technical support, provided that any cash Investments by the Loan Parties do not exceed Three Hundred Thousand Dollars ($300,000) in the aggregate in any fiscal year;
(j) Investments made pursuant to Borrower's investment policy approved by its board of directors;
(k) Investments permitted under Sections 7.3, 7.6 or 7.7; and
(l) additional Investments, other than Investments in Subsidiaries, by the Loan Parties that do not exceed One Hundred Fifty Thousand Dollars ($150,000) in the aggregate during the term of
this Agreement.
"Permitted Liens" means the following:
(a) Any Liens existing on the Closing Date and disclosed in Section P-3 of the Disclosure Schedules (excluding Liens to be satisfied with the proceeds of the Term Loan) or arising under this
Agreement or the other Loan Documents;
(b) Liens for taxes, fees, assessments or other governmental charges or levies, either not delinquent or being contested in good faith by appropriate proceedings and for which the
applicable Loan Party maintains adequate reserves, provided the same have no priority over any of Bank's security interests (other than statutory liens arising as a matter of law);
(c) Liens not to exceed Three Hundred Thousand Dollars ($300,000.00) in the aggregate (i) upon or in any Equipment acquired or held by a Loan Party or any of its Subsidiaries to secure the
purchase price of such Equipment or indebtedness incurred solely for the purpose of financing the acquisition or lease of such Equipment, or (ii) existing on such Equipment at the time of its acquisition, provided that the Lien is confined solely
to the property so acquired and improvements thereon, and the proceeds of such Equipment;
(d) Liens incurred in connection with licenses or sublicenses permitted hereunder;
(e) statutory Liens securing claims or demands of materialmen, mechanics, carriers, repairmen, or other like Liens imposed without the action of such parties arising in the ordinary course
of business;
(f) Liens to secure payment for workers' compensation, employment insurance, old age pensions, social security or other like obligations incurred in the ordinary course of business;
(g) Non-exclusive licenses of Intellectual Property granted to third parties in the ordinary course of business consistent with past practice;
(h) Liens arising in connection with the corporate credit cards as permitted in clause (e) of the definition of "Permitted Indebtedness";
(i) Liens incurred in connection with the extension, renewal or refinancing of the indebtedness secured by Liens of the type described in clauses (a) through (h) above, provided that any
extension, renewal or replacement Lien shall be limited to the property encumbered by the existing Lien and the principal amount of the indebtedness being extended, renewed or refinanced does not increase;
(j) Liens arising from judgments, decrees or attachments in circumstances not constituting an Event of Default under Sections 8.5 (attachment) or 8.9 (judgments);
(k) Leases or subleases of real property granted in the ordinary course of a Loan Party's business (or, if referring to another Person, in the ordinary course of such Person's business);
and
(l) Liens in favor of other financial institutions arising in connection with a Loan Party's Deposit Accounts held at such institutions to secured standard fees for deposit services charged
by, but not financing made available by such institutions, provided that Bank has a perfected security interest in the amounts held in such deposit accounts to the extent required by Section 6.6.
"Permitted Transfer" means the conveyance, sale, lease, transfer or disposition by Borrower or any Subsidiary of:
(a) Inventory in the ordinary course of business;
(b) Licenses permitted hereunder;
(c) worn-out, unutilized or obsolete Equipment;
(d) grants of security interests and other Liens that constitute Permitted Liens;
(e) Transfers that constitute Permitted Investments;
(f) use of cash and cash equivalents, unless in a manner otherwise prohibited by the terms of this Agreement; and
(g) other assets of the Loan Parties and their Subsidiaries that do not in the aggregate exceed Three Hundred Thousand Dollars ($300,000) during any fiscal year.
"Person" means any individual, sole proprietorship, partnership, limited liability company, joint venture, trust, unincorporated organization, association, corporation, institution, public benefit
corporation, firm, joint stock company, estate, entity or governmental agency.
"Plan" means an employee benefit plan (as defined in Section 3(3) of ERISA) covering employees of any Loan Party or any of its Subsidiaries (a) that is maintained by any Loan Party or any ERISA
Affiliate or (b) to which any Loan Party has an obligation to make contributions, including as the result of being an ERISA Affiliate.
"Post-Closing Schedule" means Schedule 6.16 hereto.
"Prepayment Asset Sale" means, with respect to any Loan Party, the sale, transfer or other disposition by a Loan Party of any of its respective assets outside of the ordinary course of business
pursuant to clause (g) of the definition of Permitted Transfer.
"Prime Rate" means the greater of six and one-quarter of one percent (6.25%) per year, or the variable rate of interest, per annum, most recently announced by Bank, as its "prime rate," whether or
not such announced rate is the lowest rate available from Bank.
"Prohibited Territory" means any person or country listed by the Office of Foreign Assets Control of the United States Department of Treasury as to which transactions between a United States Person
and that territory are prohibited.
"Protected CFC" means any CFC all of whose "United States shareholders" are United States domestic C-corporations which as reasonably determined by Borrower in consultation with Bank would receive
a 100% dividends received deduction under Section 245A of the IRC with respect to all dividends from such CFC and all inclusions under Sections 951(a)(1)(B) and 956 of the IRC pursuant to Treasury Regulation Section 1.956-1 from such CFC.
"Protected Foreign Subsidiary" means (i) any Protected CFC or (ii) any Foreign Subsidiary that is treated as a disregarded entity of a "United States person" other than a FSHCO within the meaning
of Section 7701(a)(30) of the IRC for federal income tax purposes and which does not own any Capital Stock in any CFC.
"Put Agreement" means that certain Amended and Restated Put Agreement, dated as of October 31, 2016, by and among IsoPlexis, Connecticut Innovations, Incorporated, Connecticut Growth Fund II,
Limited Partnership and Advantage Capital Partners Connecticut V, Limited Partnership.
"QFC" has the meaning assigned to the term "qualified financial contract" in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).
"QFC Credit Support" has the meaning set forth in Section 12.14.
"Remaining Months Liquidity" means, with respect to the Loan Parties for each period consisting of six consecutive months, a ratio of Cash as of the last day of such period to Cash Burn for such
period.
"Reportable Event" means a reportable event (as defined in Section 4043 of ERISA), other than an event for which the 30-day notice requirement under ERISA has been waived in regulations issued by
the PBGC.
"Requirements of Law" means, with respect to any Person, collectively, the common law and all federal, state, local, foreign, multinational or international laws, statutes, codes, treaties,
standards, rules and regulations, guidelines, ordinances, orders, judgments, writs, injunctions, decrees (including administrative or judicial precedents or authorities) and the interpretation or administration thereof by, and other determinations,
directives, requirements or requests of any Governmental Authority, in each case whether or not having the force of law and that are applicable to or binding upon such Person or any of its property or to which such Person or any of its property is
subject.
"Responsible Officer" means each of the Chief Executive Officer, the Chief Operating Officer, the Chief Financial Officer, the VP, Finance and Accounting and the General Counsel of any Person and
(in the case of documents delivered on the Closing Date, shall include any secretary or assistant secretary or any other authorized Person of Borrower).
"Responsible Officer Certification" means, with respect to the financial statements for which certification is required, the certification of a Responsible Officer of Borrower that such financial
statements fairly present, in all material respects, in accordance with GAAP, the consolidated financial position and results of operation of Borrower as at the dates indicated, subject to changes resulting from audit and normal year-end
adjustments.
"Sanctions" means any and all economic sanctions, trade sanctions, financial sanctions, sectoral sanctions, secondary sanctions, trade embargoes anti-terrorism laws and other sanctions laws,
regulations or embargoes, including those imposed, administered or enforced from time to time by: (a) the United States of America, including those administered by OFAC, the U.S. Department of State, the U.S. Department of Commerce, or through any
existing or future executive order, (b) the United Nations Security Council, (c) the European Union or any European Union member state, or (d) His Majesty's Treasury of the United Kingdom.
"Second Extended Interest-Only Period" means Borrower's EBITDA for the trailing six months ending June 30, 2025 is not less than $12,117,305.34 as reflected in the applicable Compliance Certificate
received by Bank in accordance with the requirements of this Agreement.
"Shares" means (i) sixty-five percent (65%) of the issued and outstanding voting Capital Stock owned or held of record by Borrower in any CFC or a FSHCO, (ii) one hundred percent (100%) of the
issued and outstanding non-voting Capital Stock owned or held of record by Borrower in any CFC or a FSHCO, and (iii) one hundred percent (100%) of the issued and outstanding Capital Stock owned or held of record by Borrower or any other Loan Party
in any Domestic Subsidiary and/or Protected Foreign Subsidiary
"Shares Collateral" has the meaning assigned to such term in Section 4.4.
"Subordinated Debt" means any debt incurred by Borrower that is subordinated in writing to the debt owing by Borrower to Bank on terms reasonably acceptable to Bank (and identified as being such by
Borrower and Bank).
"Subsidiary" means any corporation, partnership or limited liability company or joint venture in which (i) any general partnership interest or (ii) more than fifty percent (50%) of the stock,
limited liability company interest or joint venture of which by the terms thereof ordinary voting power to elect the board of directors (or other governing body), managers or trustees of the entity, at the time as of which any determination is
being made, is owned by Borrower, either directly or through an Affiliate.
"Supported QFC" has the meaning set forth in Section 12.14.
"Swap Obligation" means, with respect to any Guarantor, any obligation to pay or perform under any agreement, contract or transaction that constitutes a "swap" within the meaning of section 1a(47)
of the Commodity Exchange Act.
"Taxes" means all present or future taxes, levies, imposts, duties, deductions, withholdings, assessments, fees or other charges imposed by any Governmental Authority, including any interest,
additions to tax or penalties applicable thereto.
"Term Loan" has the meaning set forth in Section 2.1(b)(i).
"Term Loan Maturity Date" means March 21, 2028.
"Trademarks" means any trademark and servicemark rights, whether registered or not, applications to register and registrations of the same and like protections, and the entire goodwill of the
business of Borrower connected with and symbolized by such trademarks.
"U.S. Special Resolution Regimes" has the meaning set forth in Section 12.14.
"Warrant" means that certain Warrant Certificate with an issue date of December 30, 2020 issued by Borrower to Perceptive Credit Holdings III, LP, as Holder (as defined therein) with respect to
496,560 shares of common stock of Borrower.
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DEBTOR
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PHENOMEX INC./ISOPLEXIS CORPORATION
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SECURED PARTY:
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EAST WEST BANK
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EXHIBIT B
COLLATERAL DESCRIPTION ATTACHMENT
TO LOAN AND SECURITY AGREEMENT
All personal property of each Loan Party (herein referred to as "Debtor") whether presently existing or hereafter created or acquired, and wherever located, including, but not limited to:
All personal property of each Debtor of every kind, whether presently existing or hereafter created or acquired, and wherever located, including but not limited to: (a) all accounts (including
health-care-insurance receivables), chattel paper (including tangible and electronic chattel paper), the commercial tort claims set forth in Section 5.10 of the Disclosure Schedules or otherwise identified to Bank, deposit accounts, documents
(including negotiable documents), equipment (including all accessions and additions thereto), general intangibles (including payment intangibles and software), goods (including fixtures), instruments (including promissory notes), inventory
(including all goods held for sale or lease or to be furnished under a contract of service, and including returns and repossessions), investment property (including securities and securities entitlements), letter of credit rights, money, and all of
each Debtor's books and records with respect to any of the foregoing, and the computers and equipment containing said books and records; and (b) any and all cash proceeds and/or noncash proceeds thereof, including, without limitation, insurance
proceeds, and all supporting obligations and the security therefor or for any right to payment. All terms above have the meanings given to them in the Code.
Notwithstanding the foregoing, the Collateral shall not include Excluded Collateral. Notwithstanding the foregoing, if a judicial authority (including a U.S. Bankruptcy Court) holds that a
security interest in the underlying Intellectual Property is necessary to have a security interest in the Rights to Payment, then the Collateral shall automatically, and effective as of June 30, 2021, with respect to PhenomeX Inc. and March 21,
2023, with respect to IsoPlexis Corporation, include the Intellectual Property to the extent necessary to permit perfection of Bank's security interest in the Rights to Payment.
EXHIBIT C
COMPLIANCE CERTIFICATE
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Please send all Required Reporting to:
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East West Bank
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135 North Robles Avenue, 2nd Floor
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Pasadena, California 91101
Attn: Eric Watson, Senior Vice President
Email: Eric.Watson@eastwestbank.com
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FROM: PHENOMEX INC.
The undersigned authorized Responsible Officer of PHENOMEX INC. (“Borrower”), hereby certifies, solely in his or her capacity as an officer of the company and not in his or her individual capacity that in accordance
with the terms and conditions of the Second Amended and Restated Loan and Security Agreement among Borrower, IsoPlexis Corporation, a Delaware corporation, as a Guarantor, and Bank (as amended, restated, amended and restated, supplemented or
otherwise modified from time to time, the “Agreement”), (i) the Loan Parties are in complete compliance for the period ending with all required covenants, except as noted below and (ii) all representations and warranties of the Loan Parties stated
in the Agreement and each other Loan Document are true and correct in all material respects as of the date hereof. Attached herewith are the required documents supporting the above certification. The Responsible Officer further certifies that these
are prepared in accordance with Generally Accepted Accounting Principles (GAAP) and are consistently applied from one period to the next except as explained in an accompanying letter or footnotes.
Please indicate compliance status by circling Yes/No under “Complies” or “Applicable” column.
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REPORTING COVENANTS
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REQUIRED
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COMPLIES
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Quarterly Financial Statements (Section 6.2(a))
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Within 45 days after the end of each fiscal quarter1
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YES
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NO
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Annual Audited Financial Statements (Section 6.2(b))
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Within 90 days after the end of each fiscal year
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YES
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NO
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Compliance Certificate (Section 6.2(c))
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Together with the quarterly financial statements and the annual audited financial statements2
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YES
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NO
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Annual Operating Budget and Financial Projections (Section 6.2(e))
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Within 90 days after the beginning of each fiscal year3
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YES
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NO
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If Public:
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10-Q
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Quarterly, within 5 days of SEC filing (50 days)
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YES
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NO
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10-K
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Annually, within 5 days of SEC filing (95 days)
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YES
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NO
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1 To be delivered for the first three fiscal quarters of each fiscal year.
2 Commencing with the fiscal quarter ending March 31, 2023.
3 Commencing with the fiscal year ending December 31, 2024.
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COVENANTS
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REQUIRED4
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COMPLIES
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Remaining Months Liquidity measured as of the last day of each fiscal quarter
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4.00 to 1.00 or each Loan Party must execute an Amendment to Agreement and Intellectual Property Security Agreement to provide Bank with a perfected first priority security interest on each Loan Party's Intellectual Property
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YES
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NO
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N/A
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Minimum Unrestricted Cash
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Maintain unrestricted cash or cash equivalents of the Loan Parties of not less than Seventy Million Dollars ($70,000,000) at all times, all of which shall be held in a Deposit Account of one or more Loan Parties maintained with Bank that
are not Excluded Accounts and are subject to an assignment of deposit in form and substance satisfactory to Bank (it being acknowledged and agreed by Bank that the form of Assignment of Deposit executed and delivered on the Closing Date is
satisfactory).
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YES
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NO
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N/A
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Minimum EBITDA
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During any Covenant Testing Period, maintain EBITDA measured on the last day of each quarter for the one-quarter period ending on such date, of at least the amount
for the one-quarter period ending on the date set forth opposite of the column “Quarter Ending” in the table in Section 6.7(c) of the Agreement for that period.
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YES
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NO
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N/A
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Applications or Registrations of Intellectual Property Rights Filed with the United States Patent and Trademark Office
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YES
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NO
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Inbound Licenses or Agreements
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YES
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NO
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Creation/Acquisition of Subsidiaries
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YES
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NO
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Please Enter Below Comments Regarding Violations:
The Responsible Officer further acknowledges that at any time Borrower is not in compliance with all the terms set forth in the Agreement, including, without limitation, the financial covenants, no credit extensions will be made.
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Very truly yours,
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PHENOMEX INC.
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Authorized Signer
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4 The
provisions included here are for illustrative purposes and the parties shall refer to the Agreement for the requirements of the covenants in full.
EXHIBIT D
Irrevocable Proxy
IRREVOCABLE PROXY
(Interests of_____________________)
For good and valuable consideration, receipt of which is hereby acknowledged, the undersigned (the "Pledgor") hereby irrevocably (to the fullest extent permitted by law) appoints and constitutes East West Bank, a California banking corporation, as Bank
(together with its successors and assigns, the "Proxy Holder"), the attorney and proxy of the undersigned with full power of substitution and
resubstitution, to the full extent of the undersigned's rights with respect to all of the Shares (as defined in the Loan and Security Agreement, defined below) which constitute the shares or other equity interests (the "Interests") of ________________(the "Company"). Upon the execution hereof, all prior
proxies given by the undersigned with respect to any of the Interests are hereby revoked, and no subsequent proxies will be given with respect to any of the Interests except as Proxy Holder may otherwise agree to in writing in its discretion.
This proxy is IRREVOCABLE, is COUPLED WITH AN INTEREST and is granted pursuant to that certain Second Amended and
Restated Loan and Security Agreement dated as of March 21, 2023 (the "Loan and Security Agreement") by and among the Proxy Holder and PhenomeX Inc., a
Delaware corporation (the "Borrower"), as amended, restated, amended and restated, modified or supplemented from time to time, in consideration of the
credit extended pursuant to the Loan and Security Agreement. Capitalized terms used herein but not otherwise defined in this irrevocable proxy have the meanings ascribed to such terms in the Loan and Security Agreement.
The Proxy Holder named above will be empowered and may exercise this irrevocable proxy,
upon the occurrence and during the continuance of an Event of Default, to take any of the following actions: (i) transfer or register (or both) in its name or in the name of its nominee the whole or any part of the Shares and its rights under its
irrevocable appointment as attorney-in-fact pursuant to this proxy and the Loan and Security Agreement, including on the books of the Company, (ii) exchange certificates or instruments representing or evidencing Shares for certificates or
instruments of smaller or larger denominations, (iii) exercise any or all of the voting and all other rights as a holder with respect thereto, with full power of substitution to do so, (iv) collect and receive all dividends and other payments and
distributions made thereon, (v) notify the parties obligated on any of the Shares to make payment to Bank of any amounts due or to become due thereunder, (vi) endorse instruments in the name of Pledgor to allow collection of any of the Shares,
(vii) enforce collection of any of the Shares by suit or otherwise, and surrender, release or exchange all or any part thereof, or compromise or renew for any period (whether or not longer than the original period) any liabilities of any nature
of any Person with respect thereto, (viii) sell in one or more sales after ten (10) days' notice of the time and place of any public sale (which notice Pledgor agrees is commercially reasonable) the whole or any part of the Shares, (ix) (
) exercise all other rights, powers, privileges and remedies to which a holder of the Shares would be entitled (including giving or withholding written consents of shareholders, partners or members, as the case may be, calling special meetings of
shareholders, partners or members, as the case may be, and voting at such meetings), (x) otherwise act with respect to the Shares as though Bank was the outright owner thereof, (xi) exercise any other rights or remedies Bank may have under the
Uniform Commercial Code or other applicable law, and (xii) take any action and execute any (i) instrument which Bank may deem necessary or advisable to accomplish the purposes of the Loan and Security Agreement.
This irrevocable proxy shall remain in effect with respect to the Shares until payment in full of the Obligations
and termination of the Bank's commitments to make any Credit Extensions under the Loan and Security Agreement, notwithstanding any limitations to the contrary set forth in the [Certificate of Incorporation, Bylaws] or other organizational documents of the undersigned or the Company or the laws of the State of ______________.
Any obligation of the undersigned hereunder shall be binding upon the heirs, successors and assigns of the
undersigned (including any transferee of any of the Interests).
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the undersigned has executed this irrevocable proxy as of this _____ day of ___________________, 20___.
Signature Page to Irrevocable Proxy
EXHIBIT E
[reserved]
EXHIBIT F
Form of Intellectual Property Security Agreement
FORM OF
INTELLECTUAL PROPERTY SECURITY AGREEMENT
This Intellectual Property Security Agreement is entered into as of _______________ ____, 20__ by and between EAST WEST BANK, a California banking
corporation (“Bank”) and _______________________________ (“Grantor”).
RECITALS
A. Bank has agreed to make certain advances of money
and to extend certain financial accommodations (the “Loans”) to BERKELEY LIGHTS, INC., a Delaware corporation ("Borrower") in the amounts and manner set forth in that certain Second Amended and Restated Loan and Security Agreement, dated as of
March 21, 2023 (as the same may be amended, restated, amended and restated, modified or supplemented from time to time, including but not limited to that certain Amendment to Loan and Security Agreement dated of even date herewith the “Loan Agreement”; capitalized terms used herein are used as defined in the Loan Agreement), by and among Bank, Borrower and ISOPLEXIS CORPORATION, a Delaware
corporation. Bank is willing to make the Loans to Borrower, but only upon the condition, among others, that upon the occurrence of an IP Trigger Milestone, Grantor shall grant to Bank a perfected first priority security interest on each Loan
Party's Intellectual Property to secure the obligations of the Loan Parties under the Loan Agreement.
B. Pursuant to the terms of the Loan Agreement,
Grantor has granted to Bank a security interest in all of Grantor’s right, title and interest, whether presently existing or hereafter acquired, in, to and under all of the Collateral.
NOW, THEREFORE, for good and valuable consideration, receipt of which is hereby acknowledged, and intending to be legally bound, as collateral
security for the prompt and complete payment when due of its obligations under the Loan Agreement and all other agreements now existing or hereafter arising between the Loan Parties and Bank, Grantor hereby represents, warrants, covenants and
agrees as follows:
AGREEMENT
1. To secure its obligations under the Loan Agreement
and under any other agreement now existing or hereafter arising between the Loan Parties and Bank, Grantor grants and pledges to Bank a security interest in all of Grantor’s right, title and interest in, to and under its Intellectual Property
(including without limitation those Copyrights, Patents and Trademarks listed on Exhibits A, B and C hereto), and including without limitation all proceeds thereof (such as, by way of example but not by way of limitation, license royalties and
proceeds of infringement suits), the right to sue for past, present and future infringements, all rights corresponding thereto throughout the world and all re-issues, divisions continuations, renewals, extensions and continuations-in-part
thereof.
2. This security interest is granted in conjunction
with the security interest granted to Bank under the Loan Agreement. The rights and remedies of Bank with respect to the security interest granted hereby are in addition to those set forth in the Loan Agreement and the other Loan Documents,
and those which are now or hereafter available to Bank as a matter of law or equity. Each right, power and remedy of Bank provided for herein or in the Loan Agreement or any of the Loan Documents, or now or hereafter existing at law or in
equity shall be cumulative and concurrent and shall be in addition to every right, power or remedy provided for herein and the exercise by Bank of any one or more of the rights, powers or remedies provided for in this Intellectual Property
Security Agreement, the Loan Agreement or any of the other Loan Documents, or now or hereafter existing at law or in equity, shall not preclude the simultaneous or later exercise by any person, including Bank, of any or all other rights, powers
or remedies.
3. Grantor represents and warrants that Exhibits A,
B, and C attached hereto set forth any and all intellectual property rights in connection to which Grantor has registered or filed an application with either the United States Patent and Trademark Office or the United States Copyright Office,
as applicable.
4. This Intellectual Property Security Agreement may
be executed in two or more counterparts, each of which shall be deemed an original but all of which together shall constitute the same instrument. The words "execution," "signed," "signature," "delivery," and words of like import in or
relating to this Intellectual Property Security Agreement and the transactions contemplated hereby shall be deemed to include Electronic Signatures, deliveries or the keeping of records in electronic form, each of which shall be of the same
legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be. If any signature is delivered by facsimile transmission or by email
delivery of a ".pdf" format data file, such signature shall create a valid and binding obligation of the party executing this Intellectual Property Security Agreement (or on whose behalf such signature is executed) with the same force and
effect as if such facsimile or ".pdf" signature page were an original hereof.
[Signature pages follow]
IN WITNESS WHEREOF, the parties have caused this Intellectual Property Security Agreement to be duly executed by its officers thereunto duly
authorized as of the first date written above.
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GRANTOR:
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Address of Grantor:
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By:
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Attn:
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Title:
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BANK:
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Address of Bank:
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EAST WEST BANK
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135 North Robles Avenue, 2nd Floor
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By:
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Pasadena, California 91101
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Attn: Eric Watson, Senior Vice President
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Title:
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EXHIBIT A
Copyrights
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Description
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Registration Number
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Registration Date
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EXHIBIT B
Patents
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Description
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Patent/App. No.
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File Date
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EXHIBIT C
Trademarks
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Description
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Serial/Registration No.
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File Date
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EAST WEST BANK
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AUTOMATIC DEBIT AUTHORIZATION
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Member FDIC
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To: East West Bank
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Re: Loan # 769631502
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You are hereby authorized and instructed to charge account No. _____8003098608______________ in the name of
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for principal, interest and other payments due on above referenced loan as set forth below and credit the loan referenced above.
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☒ Debit each interest payment as it becomes due according to the terms of the Loan and Security Agreement and any renewals or amendments thereof.
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☒ Debit each principal payment as it becomes due according to the terms of the Loan and Security Agreement and any renewals or amendments thereof.
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This Authorization is to remain in full force and effect until revoked in writing by Borrower.
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Borrower Signature:
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Date:
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USA PATRIOT ACT
NOTICE
OF
CUSTOMER IDENTIFICATION
IMPORTANT INFORMATION ABOUT PROCEDURES
FOR OPENING A NEW ACCOUNT
To help the government fight the funding of terrorism and money laundering activities, Federal law requires all financial institutions to obtain, verify, and record information that identifies each
person who opens an account.
WHAT THIS MEANS FOR YOU: when you open an account, we will ask your name, address, date of birth, and other information that will allow us to identify you. We may also ask to see your driver's
license or other identifying documents.
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Agreement to Furnish Insurance to Loan and Security Agreement
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Borrower and Guarantor: PHENOMEX INC. and ISOPLEXIS CORPORATION
I understand that the Second Amended Loan and Security Agreement which I executed in connection with this transaction requires me to provide certain insurance policies, including, without limitation, a physical
damage insurance policy including a Lenders Loss Payable Endorsement in favor of East West Bank (the "Bank") as shown below.
The following minimum insurance must be provided according to the terms of the security documents (together with such other insurance as may be required by the Bank pursuant to the terms of the security documents).
Fire & Extended Coverage
Lender's Loss Payable Endorsement
I may obtain the required insurance from any company that is acceptable to the Bank, and will deliver proof of such coverage with an effective date of March 21, 2023 or earlier.
I understand and agree that if I fail to deliver proof of insurance to the Bank at the address below, or upon the lapse or cancellation of such insurance, the Bank may procure Lender's Single Interest Insurance or
other similar coverage on the property. If the Bank procures insurance to protect its interest in the property described in the security documents, the cost for the insurance will be added to my indebtedness as provided in the security documents.
Lender's Single Interest Insurance shall cover only the Bank's interest as a secured party, and shall become effective at the earlier of the funding date of this transaction or the date my insurance was canceled or expired. I UNDERSTAND THAT
LENDER'S SINGLE INTEREST INSURANCE WILL PROVIDE ME WITH ONLY LIMITED PROTECTION AGAINST PHYSICAL DAMAGE TO THE COLLATERAL, UP TO THE BALANCE OF THE LOAN, HOWEVER, MY EQUITY IN THE PROPERTY WILL NOT BE INSURED. FURTHER, THE INSURANCE WILL NOT
PROVIDE MINIMUM PUBLIC LIABILITY OR PROPERTY DAMAGE INDEMNIFICATION AND DOES NOT MEET THE REQUIREMENTS OF THE FINANCIAL RESPONSIBILITY LAW.
CALIFORNIA CIVIL CODE SECTION 2955.5. HAZARD INSURANCE DISCLOSURE: No lender shall require a borrower, as a condition of receiving or maintaining a loan secured by real property, to provide hazard insurance coverage
against risks to the improvements on that real property in an amount exceeding the replacement value of the improvements on the property.
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Bank Address for Insurance Documents:
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East West Bank
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135 N Robles Avenue, 2nd Floor
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Pasadena, CA 91101
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I acknowledge having read the provisions of this agreement, and agree to its terms. I authorize the Bank to provide to any person (including any insurance agent or company) any information necessary to obtain the
insurance coverage required.
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Date: March 21, 2023
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OWNERS OF COLLATERAL
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PHENOMEX INC.
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ISOPLEXIS CORPORATION
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By:
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INSURANCE VERIFICATION
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Date
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Phone
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Agents Name
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Person Talked To
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Agents Address
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Insurance Company
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Policy Number(s)
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Effective Dates: From:
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To:
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Deductible $
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Comments:
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