Forbearance Agreement and First Amendment to Credit Agreement and Guaranty

Exhibit 4.1

Execution Version

Forbearance Agreement and

First Amendment to Credit Agreement and Guaranty

This Forbearance Agreement and First Amendment to Credit Agreement and Guaranty (herein, this “Agreement”) is entered into as of August 27, 2019, by and among Icagen-T, Inc., a Delaware corporation (the “Borrower”), Icagen, Inc., a Delaware corporation (“Parent”), the Subsidiary Guarantors party thereto (together with the Parent, the “Guarantors”, and the Guarantors together with the Borrower, collectively, the “Loan Parties”), each financial institution from time to time party hereto as lender (each, a “Lender” and collectively, the “Lenders”), and Perceptive Credit Holdings II, LP, as administrative agent for the Lenders (in such capacity, and together with its successors and assigns, the “Agent”).

R e c i t a l s:

A. The Lenders have extended credit to the Borrower on the terms and conditions set forth in that certain Credit Agreement and Guaranty, dated as of August 31, 2018 (the “Existing Credit Agreement”; the Existing Credit Agreement as amended by this Agreement, the “Credit Agreement”).

B. The Loan Parties are not in compliance with the financial covenant set forth in Section 10.01 of the Existing Credit Agreement and the affirmative covenants set forth in Sections 8.01(a) and (d) of the Existing Credit Agreement, resulting in Events of Default under Sections 11.01(d) and (e), respectively, of the Existing Credit Agreement (the “Existing Defaults”).

C. The Lenders are not willing to waive the Existing Defaults, but during and only during the period (the “Standstill Period”) beginning on the date of this Agreement and ending on the date of the Standstill Termination (as defined below), the Lenders are willing to temporarily forbear from exercising certain rights and remedies available solely by reason of the Existing Defaults on the terms and conditions set forth in this Agreement and the Credit Agreement.

D. The parties hereto agree to amend the Existing Credit Agreement pursuant to the terms of this Agreement.

Now, Therefore, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:

1. Incorporation of Recitals; Defined Terms. The parties hereto acknowledge that the Recitals set forth above are true and correct in all material respects. The defined terms in the Recitals set forth above are hereby incorporated into this Agreement by reference. All other capitalized terms used herein without definition shall have the same meanings herein as such terms have in the Credit Agreement.

2. Acknowledgment of Defaults. The Existing Defaults constitute Events of Default under the Credit Agreement. The Loan Parties acknowledge that, because of the Existing Defaults, the Agent and the Lenders are permitted and entitled (i) under Section 11.02 of the Credit Agreement and under the other Loan Documents to accelerate the Obligations, to enforce Liens granted under the Security Documents, and to exercise any other rights or remedies that may be available under the Loan Documents or under applicable law and (ii) to charge the Default Rate under Section 3.02(b) of the Credit Agreement. The Loan Parties represent to the Agent and the Lenders that there are no Defaults or Events of Default other than the Existing Defaults.

3. Forbearance. Unless and until a Standstill Termination occurs, the Agent and the Lenders party hereto will not accelerate the Obligations or enforce any of the Liens granted under the Security Documents or exercise any other rights or remedies available solely by reason of the Existing Defaults.

4. Principal Payments. The Borrower shall pay all principal on the Closing Date Term Loan when due, including, without limitation, the Borrower shall continue to make all scheduled payments of principal on the Term Loans as and when due under the Credit Agreement.

5. Interest and Fee Payments. The Borrower shall pay all interest, fees, and other Obligations as and when due under the Credit Agreement.

6. Standstill Termination. As used in this Agreement, “Standstill Termination” shall mean the earlier of December 31, 2019 or the occurrence of any one or more of the following events: (a) any Default or Event of Default under the Credit Agreement, in each case other than the Existing Defaults; (b) any failure by any Loan Party for any reason to comply with any term, condition, or provision contained in this Agreement; (c) any representation made by any Loan Party in this Agreement or pursuant to it proves to be incorrect or misleading in any material respect when made (other than to the extent such representation is incorrect as a result of the Existing Defaults); or (d) any Material Adverse Effect shall occur as determined in good faith by the Agent. The occurrence of any Standstill Termination shall be deemed an Event of Default under the Credit Agreement. Upon the occurrence of a Standstill Termination, the Standstill Period shall automatically terminate and the Agent and the Lenders shall then be permitted and entitled under Section 11.02 of the Credit Agreement and the other Loan Documents, among other things, to accelerate the Obligations and to exercise any other rights and remedies that may be available under the Loan Documents or applicable law.

7. First Amendment to Existing Credit Agreement. Upon satisfaction of the conditions set forth in Section 13 hereof, the Loan Parties, the Agent and the Lenders hereby agree that the Existing Credit Agreement is hereby amended by incorporating the changes shown on the marked copy of the Existing Credit Agreement attached hereto as Annex A. Deletions of text in the Existing Credit Agreement as amended hereby are indicated by struck-through red text, and insertions of text as amended hereby are indicated by underlined blue text. Attached hereto as Annex B is a clean copy of the Credit Agreement conformed through the First Amendment. Schedule 1 to the Existing Credit Agreement is hereby amended and replaced in its entirety with Schedule 1 attached hereto.

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8. No Waiver and Reservation of Rights. The Loan Parties acknowledge that the Lenders are not waiving the Existing Defaults but, are simply agreeing to forbear from exercising their rights with respect to the Existing Defaults to the extent expressly set forth in this Agreement. Without limiting the generality of the foregoing, the Loan Parties acknowledge and agree that immediately upon expiration of the Standstill Period, the Agent and the Lenders have all of their rights and remedies with respect to the Existing Defaults to the same extent, and with the same force and effect, as if the forbearance had not occurred. The Loan Parties will not assert and hereby forever waive any right to assert that the Agent or the Lenders are obligated in any way to continue beyond the Standstill Period to forbear from enforcing their rights or remedies or that the Agent and the Lenders are not entitled to act on the Existing Defaults after the occurrence of a Standstill Termination as if such default had just occurred and the Standstill Period had never existed. The Loan Parties acknowledge that the Agent and the Lenders have made no representations as to what actions, if any, the Agent or the Lenders will take after the Standstill Period or upon the occurrence of any Standstill Termination, a Default or Event of Default, and the Agent and the Lenders must and do hereby specifically reserve any and all rights, remedies, and claims they have (after giving effect hereto) with respect to the Existing Defaults and each other Default or Event of Default that may occur.

9. Acknowledgement of Liens and Affirmation of Guarantee. The Loan Parties hereby acknowledge and agree that the Obligations owing to the Agent and the Lenders arising out of or in any manner relating to the Loan Documents shall continue to be secured by the Liens granted as security therefor in the Loan Documents, to the extent provided for in the Loan Documents heretofore executed and delivered by the such Loan Parties; and nothing herein contained shall in any manner affect or impair the priority of the Liens created and provided for thereby as to the indebtedness, obligations, and liabilities which would be secured thereby prior to giving effect to this Agreement. The Parent and Subsidiary Guarantors hereby reaffirm the Guaranteed Obligations owing to the Agent and the Lenders to the extent provided for in the Credit Agreement, and hereby acknowledge and agree that nothing herein contained shall in any manner affect or impair the Guaranteed Obligations.

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10. RELEASE.

(a) For Value Received, Including Without Limitation, the Agreements of the LEnders in This aGreement, Each LOan PArty, On Behalf of Itself and Its Successors and Assigns, and Its Current and Former Shareholders, Members, Parents, Subsidiaries, Divisions, Affiliates, Directors, Officers, Employees, Agents, Attorneys, Advisors, Consultants, and Other Representatives (Collectively, the “REleasing PArties”), Hereby Absolutely, Unconditionally, and Irrevocably Releases and Forever Discharges the aGent and the LEnders, and Their Current and Former Shareholders, Members, Parents, Subsidiaries, Divisions, Affiliates, Directors, Officers, Employees, Agents, Attorneys, Advisors, Consultants, and Other Representatives (Collectively, the “REleased PArties”) of and from Any and All Claims (Including, Without Limitation, All Counterclaims, Crossclaims, Defenses, Rights of Set-Off and Recoupment), Actions, Causes of Action, Acts and Omissions, Controversies, Demands, Suits, and Other Liabilities (Collectively, the “CLaims”) of Every Kind or Nature Whatsoever, Both in Law and in Equity, Known or Unknown, Which Any REleasing PArty has or Ever Had Against the REleased PArties Prior to, Through, and Including This Date, Including, Without Limitation, CLaims Arising Out of the Existing Financing Arrangements Between the BOrrower and the LEnders and Any CLaim of Breach of the Duty of Good Faith and Fair Dealing Based On, Among Other Things, the REleased PArties’ Exercise of Discretion Under the LOan DOcuments. THe LOan PArties Hereby Represent and Warrant That, On Behalf of Themselves and Their Successors, Assigns and Legal Representatives, They Have Not Sold, Conveyed, Assigned, Pledged, Hypothecated, or Otherwise Encumbered All or Any Part of the CLaims Released in This SEction. THe LOan PArties Hereby Acknowledge and Agree That, On Behalf of Themselves and Their Successors, Assigns and Legal Representatives, the REleased PArties Have at All Times Acted in Good Faith with Regard to the Consummation and Administration of the LOan DOcuments. EAch LOan PArty Acknowledges and Agrees That, as of the Date Hereof, It Does Not Have Any CLaim Against the REleased PArties, Each of Which Such LOan PArty, On Behalf of Itself and Its Successors, Assigns and Legal Representatives, Hereby Expressly Waives. EAch LOan PArty Hereby Confirms That the Foregoing Waiver and Release is an Informed Waiver and Release and is Being Freely Given.

(b) Each Loan Party Further Agrees, On Behalf Of Itself And Its Successors, Assigns, And Legal Representatives, Not To Commence, Institute, Or Prosecute Any Lawsuit, Action Or Other Proceeding, Whether Judicial, Administrative Or Otherwise, To Collect Or Enforce Any Claim Released Herein. If Any Loan Party Or Any Of Its Successors, Assigns, Or Legal Representatives Violates The Foregoing Covenant, The Loan Parties Hereby Agree, On Behalf Of Themselves And Their Successors And Assigns, To Jointly And Severally Pay, In Addition To Any Damages As Any Released Party May Sustain As A Result Of Such Violation, All Attorneys’ Fees And Costs Incurred By Any Released Party As A Result Of Such Violation.

11. Entire Agreement; Loan Documents Remain Effective; No Novation; and Modifications. This Agreement and the Loan Documents are intended by the Agent and the Lenders as a final expression of their agreement and are intended as a complete and exclusive statement of the terms and conditions of that agreement. This Agreement supersedes all prior agreements, whether written or oral, between the parties with respect to its subject matter and constitutes a complete and exclusive statement of the terms of the agreement between the parties with respect to its subject matter. Except as expressly set forth in this Agreement, the Loan Documents and all of the obligations of the Loan Parties thereunder, the rights and benefits of the Agent and the Lenders thereunder, and the Liens created thereby remain in full force and effect. This Agreement is not a novation nor is it to be construed as a release, waiver or modification of any of the terms, conditions, representations, warranties, covenants, rights or remedies set forth in the Loan Documents, except as specifically set forth herein. Without limiting the foregoing, the Loan Parties agree to comply with all of the terms, conditions, and provisions of the Loan Documents except to the extent such compliance is irreconcilably inconsistent with the express provisions of this Agreement. This Agreement may not be amended, supplemented, or otherwise modified except by a written agreement entered into in

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accordance with Section 14.04 of the Credit Agreement. THIS AGREEMENT REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.

12. Fees and Expenses. The Borrower shall also pay all fees and expenses (including attorneys’ fees and expenses) incurred by the Agent and its counsel outstanding as of the date hereof.

13. Conditions Precedent. The effectiveness of this Agreement is subject to the satisfaction of the following conditions precedent:

13.1. The Agent and the Lenders shall have received executed counterparts of this Agreement duly executed and delivered by each Loan Party.

13.2. The Parent shall have issued to the Agent 21 additional units of Series C Preferred Stock, together with the accompanying Series C Warrants.

13.3 The Parent shall have received $500,000 in disbursements under the Subordinated Note.

13.4 The Agent, the Lenders and the Obligors shall have entered into a forbearance agreement and amendment to the Parent Credit Agreement and the Agent and the Lenders shall have received an executed copy thereof, duly executed and delivered by each Loan Party.

14. Miscellaneous. By its acceptance hereof, each Loan Party hereby represents that it has the necessary power and authority to execute, deliver, and perform the undertakings contained herein, and that this Agreement constitutes the valid and binding obligation of such Loan Party enforceable against it in accordance with its terms. Any provision of this Agreement held invalid, illegal, or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality, or unenforceability without affecting the validity, legality, and enforceability of the remaining provision hereof; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction. The parties hereto hereby acknowledge and agree that this Agreement shall constitute a Loan Document for all purposes of the Credit Agreement and the other Loan Documents. Unless otherwise expressly stated herein, the provisions of this Agreement shall survive the termination of the Standstill Period. This Agreement may be executed in counterparts and by different parties on separate counterpart signature pages, each of which constitutes an original and all of which taken together constitute one and the same instrument. Delivery of a counterpart hereof by facsimile transmission or by e-mail transmission of an Adobe portable document format file (also known as a “PDF” file) shall be effective as delivery of a manually executed counterpart hereof. The provisions contained in Sections 14.09 (Governing Law), 14.10 (Jurisdiction; Service of Process and Venue) and 14.11 (Waiver of Jury Trial) of the Credit Agreement are incorporated herein by reference, mutatis mutandis.

[Signature Pages to Follow]

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This Agreement is entered into as of the date and year first above written.

	ICAGEN-T, INC., as Borrower

	By:	/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
	Name:	▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
	Title:	President & CEO

	ICAGEN, INC., as Parent

	By:	/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
	Name:	▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
	Title:	President & CEO

	ICAGEN CORP., as a Guarantor

	By:	/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
	Name:	▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
	Title:	President & CEO

	CALDERA DISCOVERY, INC., as a Guarantor

	By:	/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
	Name:	▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
	Title:	President & CEO

	XPRO SCIENCES, INC., as a Guarantor

	By:	/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
	Name:	▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
	Title:	President & CEO

[Signature Page to Forbearance Agreement and First Amendment to Credit Agreement and Guaranty]

	Accepted and agreed to.

	PERCEPTIVE CREDIT HOLDINGS, II LP
	as Agent and Lender

	By:	Perceptive Credit Opportunities GP, LLC, its general partner

	By:	/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
	Name:	▇▇▇▇▇▇▇ ▇▇▇▇▇
	Title:	Chief Credit Officer

	By:	/s/ ▇▇▇ ▇▇▇▇▇▇
	Name:	▇▇▇ ▇▇▇▇▇▇
	Title:	Portfolio Manager

[Signature Page to Forbearance Agreement and First Amendment to Credit Agreement and Guaranty]

Schedule 1

Commitments and Warrant Shares

Commitments

Name of Lender		Closing Date Commitment				First Amendment Date Commitment
Perceptive Credit Holdings II, LP		$	8,000,000			$	2,000,000

Warrant Shares

Name of Lender		Warrant Shares
Perceptive Credit Holdings II, LP		723,550 aggregate number of shares issued by Icagen, Inc. under the Credit Agreements for the loan to Icagen, Inc. and Icagen-T, Inc.

ANNEX A

Marked Credit Agreement

Execution Version

Credit Agreement And Guaranty¹

dated as of

August 31, 2018

among

Icagen-t, Inc.

as the Borrower,

Icagen, Inc.

as Parent,

Certain Subsidiaries of Parent from Time to Time Party hereto,

as the Subsidiary Guarantors,

The Lenders from Time to Time Party hereto,

as the Lenders,

and

Perceptive Credit Holdings II, lp

as the Administrative Agent

U.S. $8,000,000

Conformed to reflect changes from the Forbearance Agreement and First Amendment to Credit Agreement and Guaranty dated as of August 27, 2019.

Table of Contents

Section	Heading	Page

Section 1.	Definitions	1
Section 1.01.	Certain Defined Terms	1
Section 1.02.	Accounting Terms and Principles	2311
Section 1.03.	Interpretation	11
Section 1.04.	Changes to GAAP	2512

Section 2.	The Commitments and the Closing Date Term Loan and First Amendment Term Loan	2513
Section 2.01.	Closing Date Term Loan and First Amendment Term Loan	2513
Section 2.02.	Notes	2614
Section 2.03.	Use of Proceeds	2614
Section 2.04.	Proportionate Shares	2614

Section 3	Payments of Principal and Interest	2614
Section 3.01.	Repayments and Prepayments Generally; Application	2614
Section 3.02.	Interest	2715
Section 3.03.	Prepayments; Prepayment Premium	2715
Section 3.04.	~~Closing~~ Fees	2917

Section 4.	Payments, Etc	2931
Section 4.01.	Payments	2931
Section 4.02.	Computations	3032
Section 4.03.	Set-Off	3032

Section 5.	Yield Protection, Etc	3032
Section 5.01.	Additional Costs	3032
Section 5.02.	Illegality	3133
Section 5.03.	Taxes	3234
Section 5.04.	Delay in Requests	3638

Section 6.	Conditions Precedent	3638
Section 6.01.	Conditions to the Closing Date	3638

Section 7.	Representations and Warranties	3941
Section 7.01.	Power and Authority	3941
Section 7.02.	Authorization; Enforceability	4042
Section 7.03.	Governmental and Other Approvals; No Conflicts	4042
Section 7.04.	Financial Statements; Material Adverse Change	4042
Section 7.05.	Properties	▇▇▇▇

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▇▇▇▇▇▇▇ 7.06.	No Actions or Proceedings	4345
Section 7.07.	Compliance with Laws and Agreements	4446
Section 7.08.	Taxes	4446
Section 7.09.	Full Disclosure	4446
Section 7.10.	Investment Company and Margin Stock Regulation	4446
Section 7.11.	Solvency	4447
Section 7.12	Equity Holders; Subsidiaries; Equity Investments	4547
Section 7.13.	Indebtedness and Liens	4547
Section 7.14.	Material Agreements	4547
Section 7.15.	Restrictive Agreements	4548
Section 7.16.	Real Property	4548
Section 7.17.	Pension Matters	4648
Section 7.18.	Priority of Obligations; Collateral; Security Interest	4648
Section 7.19.	Regulatory Approvals	4648
Section 7.20.	Transactions with Affiliates	4749
Section 7.21.	OFAC	4719
Section 7.22.	Anti-Corruption.	4719
Section 7.23.	Deposit and Disbursement Accounts	4819
Section 7.24.	Royalty and Other Payments	4819

Section 8.	Affirmative Covenants	4819

Section 8.01.	Financial Statements and Other Information	4850
Section 8.02.	Notices of Material Events	5153
Section 8.03.	Existence; Conduct of Business	5355
Section 8.04.	Payment of Obligations	5355
Section 8.05.	Insurance	5356
Section 8.06.	Books and Records; Inspection Rights	5456
Section 8.07.	Compliance with Laws and Other Obligations	5557
Section 8.08.	Maintenance of Properties, Etc.	5557
Section 8.09.	Maintenance of Regulatory Approvals and Material Intellectual Property	5557
Section 8.10.	Action Under Environmental Laws	5557
Section 8.11.	Use of Proceeds	5558
Section 8.12.	Certain Obligations Respecting Subsidiaries; Further Assurances	5658
Section 8.13.	Termination of Non-Permitted Liens	5659
Section 8.14.	Intellectual Property	5759
Section 8.15.	ERISA Compliance	5759
Section 8.16.	Cash Management	5759
Section 8.17.	Post-Closing Obligations	5720
Section 8.18.	Milestone.	5720
Section 8.19.	Icagen-T Lien	5720
Section 8.20.	Board Observer Rights	5820
Section 8.21.	Cash Flow	21
Section 8.22.	Sanofi Agreement	21
Section 8.23.	Tuscon Real Estate	21

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Section 8.24.	Series C Capital Raise	21
Section 8.25.	Subordinated Notes	21

Section 9.	Negative Covenants	5821

Section 9.01.	Indebtedness	5821
Section 9.02.	Liens	6022
Section 9.03.	Fundamental Changes and Acquisitions	6265
Section 9.04.	Lines of Business	6365
Section 9.05.	Investments	6366
Section 9.06.	Restricted Payments	6467
Section 9.07.	Payments of Indebtedness	6568
Section 9.08.	Change in Fiscal Year	6568
Section 9.09.	Sales of Assets, Etc	6568
Section 9.10.	Transactions with Affiliates	6669
Section 9.11.	Restrictive Agreements	6669
Section 9.12.	Modifications and Terminations of Material Agreements and Organic Documents	6769
Section 9.13.	Licensing of Intellectual Property	6770
Section 9.14.	Sales and Leasebacks	6770
Section 9.15.	Hazardous Material	6770
Section 9.16.	Accounting Changes	6770
Section 9.17.	Compliance with ERISA	6770

Section 10.	Financial Covenants	6770

Section 10.01.	Minimum Liquidity	6770
Section 10.02.	Minimum Revenue	6870

Section 11.	Events of Default	6871

Section 11.01.	Events of Default	6871
Section 11.02.	Remedies	7174
Section 11.03.	Additional Remedies	7174
Section 11.04.	Prepayment Premium and Redemption Price	7224

Section 12.	Guarantee	7224

Section 12.01.	The Guarantee	7224
Section 12.02.	Obligations Unconditional	7324
Section 12.03.	Reinstatement	7376
Section 12.04.	Subrogation	7476
Section 12.05.	Remedies	7476
Section 12.06.	Instrument for the Payment of Money	7477
Section 12.07.	Continuing Guarantee	7477
Section 12.08.	Rights of Contribution	7477
Section 12.09.	General Limitation on Guarantee Obligations	7578

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Section 13.	Administrative Agent	7578

Section 13.01.	Appointment	7578
Section 13.02.	Rights as a Lender	7678
Section 13.03.	Exculpatory Provisions	7679
Section 13.04.	Reliance by Administrative Agent	7779
Section 13.05.	Delegation of Duties	7780
Section 13.06.	Resignation of Agent.	7780
Section 13.07.	Non-Reliance on Administrative Agent and Other Lenders	7881
Section 13.08.	Administrative Agent May File Proofs of Claim	7881
Section 13.09.	Collateral and Guaranty Matters; Appointment of Collateral Agent	7982

Section 14.	Miscellaneous	8083

Section 14.01.	No Waiver	8083
Section 14.02.	Notices	8083
Section 14.03.	Expenses, Indemnification, Etc.	8183
Section 14.04.	Amendments, Etc.	8184
Section 14.05.	Successors and Assigns	8285
Section 14.06.	Survival	8487
Section 14.07.	Captions	8487
Section 14.08.	Counterparts	8587
Section 14.09.	Governing Law	8587
Section 14.10.	Jurisdiction, Service of Process and Venue	8587
Section 14.11.	Waiver of Jury Trial	8588
Section 14.12.	Waiver of Immunity	8588
Section 14.13.	Entire Agreement	8688
Section 14.14.	Severability	8688
Section 14.15.	No Fiduciary Relationship	8689
Section 14.16.	Confidentiality	8689
Section 14.17.	Right of Setoff.	8789
Section 14.18.	Judgment Currency	8790
Section 14.19.	USA PATRIOT ▇▇▇	▇▇▇▇
Section 14.20.	Release of Collateral and Guarantees; Non-Disturbance Agreements	8890
Section 14.21.	Acknowledgement and Consent to Bail-In of EEA Financial Institutions	8891

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Credit Agreement and Guaranty

Credit Agreement and Guaranty, dated as of August 31, 2018 (this “Agreement”), among Icagen-T, Inc., a Delaware corporation (the “Borrower”), Icagen, Inc., a Delaware corporation (“Parent”), certain of Parent’s Subsidiaries from time to time parties hereto, the lenders from time to time party hereto (each, a “Lender” and collectively, the “Lenders”), and Perceptive Credit Holdings II, LP, as administrative agent for the Lenders (in such capacity, the “Administrative Agent”).

Witnesseth:

Whereas, the Borrower has requested that the Lenders provide a senior secured term loan facility to the Borrower in an aggregate principal amount of $~~8,000,000~~10,000,000; and

Whereas, the Lenders are willing, on the terms and subject to the conditions set forth herein, to provide such senior secured term loan facility.

Now, Therefore, the parties hereto agree as follows:

Section 1. Definitions.

Section 1.01. Certain Defined Terms. As used herein, the following terms have the following respective meanings:

“Accounting Change Notice” has the meaning set forth in Section 1.04(a).

“Acquisition” means any transaction, or any series of related transactions, by which any Person directly or indirectly, by means of a take-over bid, tender offer, amalgamation, merger, purchase of assets, or similar transaction having the same effect as any of the foregoing, (i) acquires all or substantially all of the assets, business unit or division of any Person, (ii) acquires control of Equity Interests of a Person representing more than fifty percent (50%) of the ordinary voting power for the election of directors to the board of directors or other governing body of such Person, or (iii) acquires control of more than fifty percent (50%) of the Equity Interests in any Person.

“Act” has the meaning set forth in Section 14.19.

“Administrative Agent” has the meaning set forth in the preamble hereto.

“Affiliate” means, with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified; provided that, with respect to any Lender, an Affiliate of such Lender shall include, without limitation, all of such Lender’s Related Funds, but shall exclude any portfolio companies or partners of such Lender or of such Related Funds.

“Agreement” has the meaning set forth in the preamble hereto.

“Applicable Margin” means with respect to the Closing Date Term Loan, nine and three-quarters percent (9.75%), as such percentage may be increased pursuant to Section 3.02(b).

“Asset Sale” has the meaning set forth in Section 9.09.

“Assignment and Assumption” means an assignment and assumption entered into by a Lender and an assignee of such Lender in substantially the form of Exhibit F.

“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.

“Bail-In Legislation” means, with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule.

“Bailee Letter” means a bailee letter in form and substance reasonably satisfactory to the Administrative Agent.

“Bankruptcy Code” means Title 11 of the United States Code entitled “Bankruptcy”.

“Board” means, with respect to any Person, the board of directors (or equivalent management body) of such Person or any committee thereof duly authorized to act on behalf of such board or management body.

“Borrower” has the meaning set forth in the preamble hereto.

“Borrowing” means the borrowing of the Term Loan on the Closing Date.

“Bridge Notes” means, collectively, those certain 10% Subordinated Promissory Notes in the aggregate principal amount of $500,000, issued by Parent pursuant to those certain Securities Purchase Agreements, dated as of August 13, 2018, by and among Parent and the investors from time to time party thereto.

“Business Day” means a day (other than a Saturday or Sunday) on which commercial banks are not authorized or required to close in New York City.

“Calculation Date” has the meaning set forth in Section 10.02.

“Capital Lease Obligations” means, as to any Person, the obligations of such Person to pay rent or other amounts under a lease of (or other agreement conveying the right to use) real and/or personal property which obligations are required to be classified and accounted for as a capital lease on a balance sheet of such Person under GAAP and, for purposes of this Agreement, the amount of such obligations shall be the capitalized amount thereof, determined in accordance

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with GAAP.

“Casualty Event” means the damage, destruction or condemnation, as the case may be, of property of any Person or any of its Subsidiaries excluding any such property with a fair market value as of the date thereof of less than $1,000,000 per occurrence.

“Casualty Event Reinvestment Notice” has the meaning set forth in Section 3.03(b).

“Change of Control” means at any time of determination, either (i) the acquisition of ownership, directly or indirectly, beneficially or of record, by any Person (or group of Persons acting jointly or otherwise in concert) (other than the Management Investors) of Equity Interests of Parent having more than thirty-five percent (35%) of the aggregate ordinary voting power, determined on a fully diluted basis; (ii) Parent shall cease to own, directly or indirectly, beneficially and of record, one hundred percent (100%) of the issued and outstanding Equity Interests of each of its Subsidiaries (except for any such securities in the nature of directors’ qualifying shares required pursuant to applicable Law), in each case free and clear of all Liens except Liens created by the Security Documents; (iii) during any period of twelve (12) consecutive calendar months, the occupation of a majority of the seats (other than vacant seats) on the board of directors of Parent by Persons who were neither (a) nominated by the board of directors of Parent, nor (b) appointed by directors on the board of directors on the date hereof or so nominated; (iv) the sale of all or substantially all of the property or business of Parent and its Subsidiaries, taken as a whole; or (v) a Key Person Event shall have occurred.

“Claims” includes litigations, claims, demands, complaints, grievances, actions, suits, orders, charges, indictments, prosecutions, information (brought by a public prosecutor without grand jury indictment) or other similar processes, assessments or reassessments.

“Closing Date” means August 31, 2018.

“Closing Date Commitment” means the commitment of a Lender to make or otherwise fund a Closing Date Term Loan and “Closing Date Commitments” means such commitments of all Lenders in the aggregate. The amount of each Lender’s Closing Date Commitment is set forth on Schedule 1. The aggregate Closing Date Commitments of all Lenders as of the Closing Date is $8,000,000.

“Closing Date Term Loan” means each loan advanced by a Lender on the Closing Date pursuant to Section 2.01(a). For purposes of clarification, any calculation of the aggregate outstanding principal amount of the Closing Date Term Loan on any date of determination shall mean the aggregate principal amount of the Closing Date Term Loan made pursuant to Section 2.01(a) that has not yet been repaid as of such date.

“Closing Fee” has the meaning set forth in Section 3.04.

“Code” means the Internal Revenue Code of 1986, as amended.

“Collateral” means any asset or property of any Person in which a Lien is purported to be

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granted under any Loan Document (or all such property, as the context may require).

“Collateral Questionnaire” means the collateral questionnaire in substantially the form set forth in Exhibit I which shall be delivered pursuant to Section 6.01(k).

~~“Commitment”~~ means the commitment of a Lender to make or otherwise fund a Term Loan and “Commitments” means such commitments of all Lenders in the aggregate. The amount of each Lender’s Commitment is set forth on Schedule 1. The aggregate Commitments of all Lenders as of the Closing Date is $8,000,000.

“Commitment” means, collectively, the Closing Date Commitment and the First Amendment Date Commitment.

“Committee” has the meaning set forth in Section 8.20.

“Commodity Account” means a “Commodity Account” as defined in the NY UCC.

“Compliance Certificate” has the meaning set forth in Section 8.01(d).

“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.

“Consolidated Net Revenue” means revenue of Parent and its Subsidiaries determined on a consolidated basis in accordance with GAAP; provided, however, that Consolidated Net Revenue shall exclude any upfront fees and one-time milestone payments received by Parent or any of its Subsidiaries from a collaboration agreement with a pharmaceutical or biotechnology company other than those upfront fees received by Parent or any of its Subsidiaries in connection with the collaboration agreements contemplated to be entered into on Schedule 10.02.

“Contracts” means any contract, license, lease, agreement, obligation, promise, undertaking, understanding, arrangement, document, commitment, entitlement or engagement under which a Person has, or will have, any liability or contingent liability (in each case, whether written or oral, express or implied and whether in respect of monetary or payment obligations, performance obligations or otherwise).

“Control” means, in respect of a particular Person, the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have meanings correlative thereto.

“Controlled Account” has the meaning set forth in Section 8.16(a).

“Copyright” means all copyrights, copyright registrations and applications for copyright registrations, including all renewals and extensions thereof, all rights to recover for past, present or future infringements thereof and all other rights whatsoever accruing thereunder or pertaining

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“Exit Fee” has the meaning set forth in Section 3.04(b).

“Fair Share” has the meaning set forth in Section 12.08.

“FATCA” means Sections 1471 through 1474 of the Code, 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, any agreements entered into pursuant to Section 1471(b)(1) of the Code, and any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement, treaty or convention among Governmental Authorities and implementing such Sections of the Code.

“FD&C Act” means the U.S. Food, Drug and Cosmetic Act of 1938 (or any successor thereto), as amended from time to time, and the rules, regulations, guidelines, guidance, documents and compliance policy guides issued or promulgated thereunder.

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

“First Amendment” means the Forbearance Agreement and First Amendment to Credit Agreement and Guaranty, dated as of August 27, 2019, among the Obligors, the Lenders and the Administrative Agent.

“First Amendment Closing Fee” has the meaning set forth in Section 3.04.

“First Amendment Date Commitment” means the commitment of a Lender to make or otherwise fund a First Amendment Term Loan and “First Amendment Date Commitments” means such commitments of all Lenders in the aggregate. The amount of each Lender’s First Amendment Date Commitment is set forth on Schedule 1. The aggregate First Amendment Date Commitments of all Lenders as of the First Amendment Date is $2,000,000.

“First Amendment Date” means August 27, 2019.

“First Amendment Maturity Date” means June 30, 2020.

“First Amendment Term Loan” means each loan advanced by a Lender on the First Amendment Date. For purposes of clarification, any calculation of the aggregate outstanding principal amount of the First Amendment Term Loan on any date of determination shall mean the aggregate principal amount of the First Amendment Term Loan made pursuant to Section 2.01(b) that has not yet been repaid as of such date.

“First Amendment Term Loan Interest Rate” means 15% per annum.

“Foreign Lender” means a Lender (or, if the Lender is a disregarded entity for U.S. federal income tax purposes, the Person treated as the owner of the assets of such Lender for U.S. federal income tax purposes) that is not a U.S. Person.

“Foreign Subsidiary” means a Subsidiary of Parent that is not incorporated, formed or

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“Indemnified Taxes” means (i) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any Obligation and (ii) to the extent not otherwise described in clause (i), Other Taxes.

“Industrial Designs” has the meaning set forth in the Security Documents.

“Insolvency Proceeding” means (i) any case, action or proceeding before any court or other Governmental Authority relating to bankruptcy, reorganization, insolvency, liquidation, receivership, dissolution, winding-up or relief of debtors, or (ii) any general assignment for the benefit of creditors, composition, marshaling of assets for creditors, or other similar arrangement in respect of any Person’s creditors generally or any substantial portion of such Person’s creditors, in each case undertaken under U.S. Federal, state or foreign Law, including the Bankruptcy Code.

“Intellectual Property” means all Patents, Trademarks, Copyright, Industrial Designs, Technical Information and other intellectual property, whether registered or not and whether existing under, U.S. or non-U.S. Law or jurisdiction, including (without limitation) all of the following: (i) all applications or registrations relating to the foregoing; (ii) all rights and privileges arising under any applicable Law with respect to the foregoing; (iii) rights to ▇▇▇ for past, present or future infringements of such Intellectual Property; and (iv) all rights of the same or similar effect or nature in any jurisdiction corresponding to such Intellectual Property anywhere in the world.

“Interest Period” means (i) as to the Closing Date Term Loan, (a) the period commencing on (and including) the Closing Date and ending on (and including) the last day of the calendar month in which the Closing Date occurs, and (b) thereafter, the period beginning on (and including) the first day of each succeeding calendar month and ending on the earlier of (and including) (x) the last day of such calendar month and (y) the Maturity Date and (ii) as to the First Amendment Term Loan, (a) the period commencing on (and including) the First Amendment Date and ending on (and including) the last day of the calendar month in which the First Amendment Date occurs, and (b) thereafter, the period beginning on (and including) the first day of each succeeding calendar month and ending on the earlier of (and including) (x) the last day of such calendar month and (y) the First Amendment Maturity Date.

“Interest Rate” means the sum of (i) the Applicable Margin plus (ii) the greater of (x) the Reference Rate and (y) two and one-quarter percent (2.25%).

“Invention” means any novel, inventive or useful art, apparatus, method, process, machine, manufacture or composition of matter, or any novel, inventive and useful improvement in any art, method, process, machine, manufacture or composition of matter.

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Security Agreement, dated as of the date hereof, made by Borrower, as trustor, in favor of the Administrative Agent, as beneficiary.

“Mortgaged Premises” means the real property located at ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇.

“Multiemployer Plan” means any multiemployer plan, as defined in Section 4001(a)(3) of ERISA, to which any ERISA Affiliate incurs or otherwise has any obligation or liability, contingent or otherwise.

“Net Cash Proceeds” means, with respect to the sale of the Tucson Real Estate or any Casualty Event, the amount of cash proceeds received (directly or indirectly) from time to time by or on behalf of any Obligor after deducting therefrom only (w) reasonable fees, costs and expenses related thereto incurred by such Obligor in connection therewith, (x) amounts required to be repaid on account of any Permitted Indebtedness or other obligations (other than the Obligations) required to be repaid as a result of such Casualty Event, (y) amounts required to be reserved in accordance with GAAP for indemnities and against liabilities associated with the property damaged, destructed or condemned in such Casualty Event and (z) Taxes (including transfer Taxes or net income Taxes) paid or payable in connection therewith; provided that amounts specified therein in respect of costs, expenses or repayments shall only be deducted from aggregate cash proceeds to the extent such amounts are (1) actually paid to a Person that is not an Affiliate of Parent or any of its Subsidiaries and (2) properly attributable to such Casualty Event or the sale of the Tucson Real Estate, as applicable.

“Note” means a promissory note, in substantially the form of Exhibit A hereto, executed and delivered by the Borrower to any Lender in accordance with Section 2.02.

“NY UCC” means the UCC as in effect from time to time in New York.

“Obligations” means, with respect to any Obligor, all amounts, obligations, liabilities, covenants and duties of every type and description owing by such Obligor to any Secured Party (including all Guaranteed Obligations and the Warrant Obligations), arising out of, under, or in connection with, any Loan Document, whether direct or indirect (regardless of whether acquired by assignment), absolute or contingent, due or to become due, whether liquidated or not, now existing or hereafter arising and however acquired, and whether or not evidenced by any instrument or for the payment of money, including, without duplication, (i) if such Obligor is the Borrower, the Term Loan, (ii) all interest accruing under the Loan Documents (including, but not limited to, accrued but uncapitalized PIK Interest on the First Amendment Term Loan), whether or not accruing after the filing of any petition in bankruptcy or after the commencement of any insolvency, reorganization or similar proceeding, and whether or not a claim for post-filing or post-petition interest is allowed in any such proceeding, and (iii) all other fees (including, without limitation, the Exit Fee), expenses (including fees, charges and disbursement of counsel), interest, commissions, charges, costs, disbursements, indemnities and reimbursement of amounts paid and other sums, in each case, chargeable to such Obligor under any Loan Document.

“Obligor Intellectual Property” means, at any time of determination, Intellectual Property

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“Permitted Liens” means any Liens permitted under Section 9.02.

“Permitted Priority Liens” means Liens permitted under any of the clauses (b), (c), (d), (e), (f) or (i) of Section 9.02.

“Permitted Refinancing” means, with respect to any Permitted Indebtedness, any extension, renewal, replacement or refinancing of such Indebtedness; provided that such extension, renewal, replacement or refinancing (i) shall not increase the outstanding principal amount of such Indebtedness except by accrued and unpaid interest and premiums thereon and fees and expenses associated with such extension, renewal, replacement or refinancing, (ii) contains terms relating to outstanding principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole no less favorable in any material respect to Parent and its Subsidiaries or the Secured Parties than the terms of any agreement or instrument governing the Indebtedness being extended, renewed, replaced or refinanced, (iii) shall have an applicable interest rate or equivalent yield which does not exceed the interest rate or equivalent yield of the Indebtedness being extended, renewed, replaced or refinanced, (iv) shall not contain any new requirement to grant any Lien or to give any Guarantee that was not an existing requirement of the Indebtedness being extended, renewed, replaced or refinanced and (v) after giving effect to such extension, renewal, replacement or refinancing, no Default or Event of Default shall have occurred (or would reasonably be expected to occur) as a result thereof.

“Person” means any individual, corporation, company, voluntary association, partnership, limited liability company, joint venture, trust, unincorporated organization or Governmental Authority or other entity of whatever nature.

“PIK Interest” shall mean payment-in-kind of interest in respect of the First Amendment Term Loan by increasing the outstanding principal amount thereof by an amount equal to such portion of interest, rather than paying such portion of interest in cash.

“Prepayment Date” has the meaning set forth in Section 3.03(a)(i).

“Prepayment Premium” means with respect to any prepayment of principal of the Closing Date Term Loan referenced in Section 3.03(a) occurring (i) on or prior to the first anniversary of the Closing Date, an amount equal to twelve percent (12%) of the aggregate outstanding principal amount of the Closing Date Term Loan being prepaid, (ii) at any time after the first anniversary of the Closing Date and on or prior to the second anniversary of the Closing Date, an amount equal to eight percent (8%) of the aggregate outstanding principal amount of the Closing Date Term Loan being prepaid; and (iii) at any time after the second anniversary of the Closing Date and on or prior to the third anniversary of the Closing Date, an amount equal to three percent (3%) of the aggregate outstanding principal amount of the Closing Date Term Loan being prepaid on such Prepayment Date.

“Prepayment Price” has the meaning set forth in Section 3.03(a)(i).

“Product” means any future product developed, manufactured, licensed, marketed, sold or

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Administrative Agent.

“Security Documents” means, collectively, the Security Agreement, each Short-Form IP Security Agreement, each Real Property Security Document and each other security document, control agreement or financing statement required or recommended to perfect Liens in favor of the Secured Parties for purposes of securing the Obligations.

“Securities Account” has the meaning given to it in Section 8-501(a) of the NY UCC.

“Series C Holders” means any holder of the Series C Preferred Stock.

“Series C Preferred Stock” means Parent’s Series C Convertible Redeemable Preferred Stock.

“Series C Preferred Subordination Agreement” means that certain Series C Preferred Subordination Agreement, dated as of the Closing Date, among the Series C Holders, Parent and the Administrative Agent, pursuant to which the Series C Holders subordinate all rights to cash payments owed such Series C Holders by Parent due to such Series C Holders’ ownership of Series C Preferred Stock until the Obligations (other than Warrant Obligations) have been paid in full.

“Short-Form IP Security Agreements” means short-form patent, trademark or copyright (as the case may be) security agreements, substantially in the forms of Exhibits J, K and L to this Agreement, as applicable, entered into by one (1) or more Obligors in favor of the Administrative Agent for the benefit of each Secured Party.

“S/I Deed of Trust” has the meaning set forth in the definition of Sanofi Documents.

“S/I MSA” has the meaning set forth in the definition of Sanofi Documents.

“S/I Warranty and Reverter Deed” has the meaning set forth in the definition of Sanofi Documents.

“Solvent” means, with respect to any Person at any time, that (i) the present fair saleable value of the property of such Person is greater than the total amount of liabilities (including contingent liabilities) of such Person, (ii) the present fair saleable value of the property of such Person is not less than the amount that will be required to pay the probable liability of such Person on its debts as they become absolute and matured and (iii) such Person has not incurred and does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person’s ability to pay such debts and liabilities as they mature.

“Subordinated Notes” means those certain subordinated promissory notes issued pursuant to that certain Securities Purchase Agreement, dated August 27, 2019, among Parent and the investors party thereto and in an aggregate principal amount not to exceed $2,500,000.

“Subsidiary” means, with respect to any Person (the “parent”) at any date, any corporation, limited liability company, partnership, association or other entity the accounts of

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which would be consolidated with those of the parent in the parent’s consolidated financial statements if such financial statements were prepared in accordance with GAAP as of such date, as well as any other corporation, limited liability company, partnership, association or other entity of which securities or other ownership interests representing more than fifty percent (50%) of the equity or more than fifty percent (50%) of the ordinary voting power or, in the case of a partnership, more than fifty percent (50%) of the general partnership interests are, as of such date, directly or indirectly, owned, controlled or held.

“Subsidiary Guarantors” means each Subsidiary of Parent identified under the caption “SUBSIDIARY GUARANTORS” on the signature pages hereto and each Subsidiary of Parent that becomes, or is required to become, a “Subsidiary Guarantor” after the date hereof pursuant to Section 8.12(a).

“Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.

“Technical Information” means all trade secrets and other proprietary or confidential information, public information, non-proprietary know-how, any information of a scientific, technical, or business nature in any form or medium, standards and specifications, conceptions, ideas, innovations, discoveries, Invention disclosures, all documented research, developmental, demonstration or engineering work and all other information, data, plans, specifications, reports, summaries, experimental data, manuals, models, samples, know-how, technical information, systems, methodologies, computer programs, information technology and any other information.

~~“Term Loan”~~ means each loan advanced by a Lender pursuant to Section 2.01(a). For purposes of clarification, any calculation of the aggregate outstanding principal amount of the Term Loan on any date of determination shall mean the aggregate principal amount of the Term Loan made pursuant to Section 2.01(a) that has not yet been repaid as of such date.

“Term Loan” means, collectively, the Closing Date Term Loan and First Amendment Term Loan.

“Title IV Plan” means an employee benefit plan (as defined in Section 3(3) of ERISA) other than a Multiemployer Plan (i) that is or within the last six years was maintained or sponsored by any Obligor or any ERISA Affiliate thereof or to which any Obligor or any ERISA Affiliate thereof within the last six years made, or was obligated to make, contributions, and (ii) that is or was subject to Section 412 of the Code, Section 302 of ERISA or Title IV of ERISA.

“Trademarks” means all trade names, trademarks and service marks, logos, trademark and service ▇▇▇▇ registrations, and applications for trademark and service ▇▇▇▇ registrations, including all renewals of trademark and service ▇▇▇▇ registrations, all rights to recover for all past, present and future infringements thereof and all rights to ▇▇▇ therefor, and all rights corresponding thereto throughout the world, together, in each case, with the product lines and goodwill of the business connected with the use thereof.

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“Transactions” means the negotiation, preparation, execution, delivery and performance by each Obligor of this Agreement and the other Loan Documents to which such Obligor is (or is intended to be) a party, the making of the Term Loan hereunder, and all other transactions contemplated pursuant to this Agreement and the other Loan Documents.

“Tucson Real Estate” has the meaning set forth in Section 8.23.

“UCC” means, with respect to any applicable jurisdictions, the Uniform Commercial Code as in effect in such jurisdiction, as may be modified from time to time.

“United States” or “U.S.” means the United States of America, its fifty (50) states and the District of Columbia.

“U.S. Person” means a “United States person” within the meaning of Section 7701(a)(30) of the Code.

“U.S. Tax Compliance Certificate” has the meaning set forth in Section 5.03(f)(ii)(B).

“Warrant” means the warrant to be delivered to the Administrative Agent pursuant to Section 6.01 on the Closing Date, that, among other things, grants the holder thereof the right to purchase the number of shares of common stock of Parent as indicated on the Warrant Shares table on Schedule 1, as the Warrant may be amended, replaced or otherwise modified pursuant to the terms thereof.

“Warrant Obligations” means all Obligations of Parent arising out of, under or in connection with the Warrant.

“Withholding Agent” means the Borrower, any Obligor and the Administrative Agent.

“Write-Down and Conversion Powers” means, with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule.

Section 1.02. Accounting Terms and Principles. Unless otherwise specified, all accounting terms used in each Loan Document shall be interpreted, and all accounting determinations and computations thereunder (including under Section 10 and any definitions used in such calculations) shall be made, in accordance with GAAP; provided that, for purposes of determining compliance with any covenant contained in Section 9 or the existence of any Default or Event of Default under Section 11, in determining whether any lease is required to be accounted for as a capital lease or an operating lease, such determination shall be made based on GAAP as in effect on the date of this Agreement. Unless otherwise expressly provided, all financial covenants and defined financial terms shall be computed on a consolidated basis for Parent and its Subsidiaries, in each case, without duplication.

Section 1.03. Interpretation. For all purposes of this Agreement, except as otherwise

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(m) a Schedule shall refer to those Schedules provided as of the date hereof and as may be further updated in accordance with the terms of this Agreement (which updates, for the avoidance of doubt, shall be acceptable to the Administrative Agent unless such updates reflect an item that is otherwise prohibited under this Agreement on the date thereof).

Unless otherwise expressly provided herein, references to organizational documents, agreements (including the Loan Documents) and other contractual instruments shall be deemed to include all subsequent amendments, restatements, extensions, supplements and other modifications thereto permitted by the Loan Documents.

Section 1.04. Changes to GAAP. Subject to Section 1.02, if, after the date hereof, any change occurs in GAAP or in the application thereof and such change would cause any amount required to be determined for the purposes of the covenants to be maintained or calculated pursuant to Section 8, 9 or 10 to be materially different than the amount that would be determined prior to such change, then:

(a) Parent will provide a detailed notice of such change (an “Accounting Change Notice”) to the Administrative Agent within thirty (30) days after a Responsible Officer’s learning that such change would so impact the covenants and calculations hereunder;

(b) either Parent or the Administrative Agent may indicate within ninety (90) days following the date of the Accounting Change Notice that they wish to revise the method of calculating such covenants or amend any such amount, in which case the parties will in good faith attempt to agree upon a revised method for calculating the financial covenants;

(c) until Parent and the Administrative Agent have reached agreement on such revisions, such covenants or amounts as set forth herein shall remain in effect and will be determined without giving effect to such change;

(d) if no party elects to revise the method of calculating the covenants or amounts, then the covenants or amounts will not be revised and will be determined in accordance with GAAP without giving effect to such change; and

(e) any Event of Default arising as a result of such change which is cured by operation of this Section 1.04 shall be deemed to be of no effect ab initio.

Section 2. The Commitments and the Closing Date Term Loan and First Amendment Term Loan.

Section 2.01. Closing Date Term Loan and First Amendment Term Loan.

(a) ~~The~~Closing Date Term Loan.

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(i) Subject to the terms and conditions of this Agreement and relying on the representations and warranties set forth herein, each Lender, severally and not jointly, agrees to provide its share of the Closing Date Term Loan to Borrower on the Closing Date in Dollars in a principal amount equal to such Lender’s Closing Date Commitment. No Lender shall have an obligation to make a Closing Date Term Loan in excess of such Lender’s Closing Date Commitment.

(ii) Borrower may make one borrowing under the Closing Date Commitments which shall be on the Closing Date. Subject to Section 3.03, all amounts owed hereunder with respect to the Closing Date Term Loan shall be paid in full no later than the Maturity Date. Each Lender’s Closing Date Commitment shall terminate immediately and without further action on the Closing Date after giving effect to the funding of such Lender’s Closing Date Commitment on such date.

(iii) Upon satisfaction or waiver of the conditions precedent set forth in this Agreement, the Lenders shall make the proceeds of the Closing Date Term Loan available to Borrower on the Closing Date.

(b) First Amendment Term Loan.

(i) Subject to the terms and conditions of this Agreement and relying on the representations and warranties set forth herein, each Lender, severally and not jointly, agrees to provide its share of the First Amendment Term Loan to Borrower on the First Amendment Date in Dollars in a principal amount equal to such Lender’s First Amendment Date Commitment. No Lender shall have an obligation to make a First Amendment Term Loan in excess of such Lender’s First Amendment Date Commitment.

(ii) Borrower may make one borrowing under the First Amendment Date Commitment which shall be on the First Amendment Date. Subject to Section 3.03, all amounts owed hereunder with respect to the First Amendment Term Loan shall be paid in full no later than the First Amendment Maturity Date. Each Lender’s First Amendment Date Commitment shall terminate immediately and without further action on the First Amendment Date after giving effect to the funding of such Lender’s First Amendment Date Commitment on such date.

(iii) Upon satisfaction or waiver of the conditions precedent set forth in Section 13 of the First Amendment, the Lenders shall make the proceeds of the First Amendment Term Loan available to Borrower on the First Amendment Date.

(c) No amounts paid or prepaid with respect to the Term Loan may be reborrowed. Any term or provision hereof (or of any other Loan Document) to the contrary notwithstanding, the Term Loan made to the Borrower will be denominated solely in Dollars and will be repayable solely in Dollars and no other currency.

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Section 2.02. Notes. If requested by any Lender, the Term Loan of such Lender shall be evidenced by one or more Notes. If so requested, the Borrower shall prepare, execute and deliver to the Administrative Agent such promissory note(s) payable to the Lenders (or, if requested by the Lenders, to the Lenders and their registered permitted assigns) substantially in the form attached hereto as Exhibit A.

Section 2.03. Use of Proceeds. The Borrower shall use the proceeds of the Term Loan solely (a) for general corporate purposes, including, without limitation, business development and licensing purposes, (b) to refinance the Pay-Off Indebtedness and (c) to pay the fees, costs and expenses associated with the Transactions. Borrower shall not use the proceeds of the Term Loan for any purpose in violation of the Sanofi Documents.

Section 2.04. Proportionate Shares. The Term Loan shall be made, and all participations purchased, by the Lenders simultaneously and proportionately to their respective Proportionate Shares, it being understood that no Lender shall be responsible for any default by any other Lender in such other Lender’s obligation to make a Term Loan hereunder or purchase a participation required hereby nor shall the Commitment of any Lender be increased or decreased as a result of a default by any other Lender in such Lender’s obligation to make a Term Loan requested hereunder or purchase a participation required hereby.

Section 3 Payments of Principal and Interest.

Section 3.01. Repayments and Prepayments Generally; Application. (a) There will be no scheduled amortization payments of principal on the Term Loan prior to the second (2nd) anniversary of the Closing Date.

(b) Commencing with the Payment Date occurring immediately after the second (2nd) anniversary of the Closing Date and on each Payment Date occurring thereafter, the Borrower shall make a scheduled amortization payment of principal on the Closing Date Term Loan in an amount equal to 1.0% of the aggregate principal amount of the Closing Date Term Loan borrowed on the Closing Date.

(c) Any term or provision hereof to the contrary notwithstanding, (i) on the Maturity Date the Borrower shall repay the entire remaining outstanding balance of the Closing Date Term Loan in full in cash and (ii) on the First Amendment Maturity Date the Borrower shall repay the entire remaining outstanding balance of the First Amendment Term Loan (including accrued and uncapitalized PIK Interest on the First Amendment Term Loan) in full in cash.

(d) The Borrower agrees that the Term Loan, and any fees or interest accrued or accruing thereon, shall be repaid and prepaid solely in Dollars pursuant to the terms of this Section 3. Except as otherwise provided in this Agreement, each payment (including each repayment and prepayment) by the Borrower will be deemed to be made ratably in accordance with the Lenders’ Proportionate Share.

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Section 3.02. Interest.

(a) Interest Generally. The outstanding principal amount of the Closing Date Term Loan, as well as the amount of all other outstanding Obligations (other than the First Amendment Term Loan), shall accrue interest at the Interest Rate. The outstanding principal amount of the First Amendment Term Loan shall accrue interest at the First Amendment Term Loan Interest Rate.

(b) Default Interest. Notwithstanding the foregoing, upon the occurrence and during the continuance of any Event of Default, the Applicable Margin or the First Amendment Term Loan Interest Rate, as applicable, shall increase automatically by four percent (4%) per annum (the Interest Rate or the First Amendment Term Loan Interest Rate, as applicable, as increased pursuant to this Section 3.02(b), being the “Default Rate”). If any Obligation is not paid when due under any applicable Loan Document (after giving effect to any applicable grace period), the amount thereof shall accrue interest at the Default Rate.

(c) Interest Payment Dates. Accrued interest on the Closing Date Term Loan shall be payable in cash and in arrears on each Payment Date with respect to the most recently completed Interest Period, and upon the payment or prepayment of the Closing Date Term Loan (on the principal amount being so paid or prepaid)~~; provided that interest~~. PIK Interest on the First Amendment Term Loan shall be capitalized and added to the outstanding principal amount of the First Amendment Term Loan on each Payment Date with respect to the most recently completed Interest Period. Interest payable at the Default Rate with respect to the Closing Date Term Loan and the First Amendment Term Loan shall also be payable from time to time in cash on demand by the Administrative Agent.

(d) Maximum Rate. Notwithstanding any other provision of this Agreement, in no event will any interest or rates referred to herein exceed the maximum interest rate permitted by applicable law. If such maximum interest rate would be exceeded by the terms hereof, the rates of interest payable hereunder will be reduced to the extent necessary so that such rates (together with any fees or other amounts which are construed by a court of competent jurisdiction to be interest or in the nature of interest) equal the maximum interest rate permitted by applicable law, and any overpayment of interest received by the Lenders before such rates are so construed will be applied, forthwith after determination of such overpayment, to pay all then outstanding interest, and thereafter to pay outstanding principal.

Section 3.03. Prepayments; Prepayment Premium.

(a) Optional Prepayments. (i) Subject to prior written notice pursuant to clause (ii) below, the Borrower shall have the right to optionally prepay, in whole or in part, the outstanding principal amount of the Term Loan on any Business Day (a “Prepayment Date”) for an aggregate amount equal to the sum of (x) the aggregate principal amount of the Term Loan being prepaid, (y) the applicable Prepayment Premium on the principal amount of the Closing Date Term Loan being prepaid and (z) any accrued but unpaid interest on the principal amount of the Term Loan being prepaid (such aggregate amount, the “Prepayment Price”).

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(ii) A notice of optional prepayment shall be effective only if received by the Administrative Agent not later than 2:00 p.m. (Eastern time) on a date not less than one (1) Business Day prior to the proposed Prepayment Date. Each notice of optional prepayment shall specify the Prepayment Price and the principal amount to be prepaid, as well as the Prepayment Date.

(b) Mandatory Prepayments. (i) Subject to the proviso below, and except to the extent such Net Cash Proceeds have been used to prepay the obligations under the Parent Credit Agreement, upon the occurrence of any Casualty Event, the Borrower shall make a mandatory prepayment of the Term Loan in an aggregate amount equal to the sum of (x) one hundred percent (100%) of the Net Cash Proceeds received by the Borrower or any other Obligor as a result of such Casualty Event up to the principal amount outstanding of the Term Loan, and (y) any accrued but unpaid interest on such principal amount of the Term Loan being prepaid; provided that so long as no Default or Event of Default has occurred and is continuing at the time the Borrower or any Obligor shall have received such Net Cash Proceeds, if, within five (5) Business Days following the occurrence of any such Casualty Event, a Responsible Officer of the Borrower may deliver to the Administrative Agent a notice (each, a “Casualty Event Reinvestment Notice”) to the effect that the Borrower or applicable Obligor intends to apply the Net Cash Proceeds from such Casualty Event to acquire, replace or rebuild the property subject to such Casualty Event or to the cost of purchase or construction of other assets useful in the business of Parent or its Subsidiaries, then such Net Cash Proceeds of such Casualty Event may be applied for such purpose in lieu of such mandatory prepayment, provided further that, in the event that Net Cash Proceeds have not been so applied within one hundred eighty (180) days following the occurrence of such Casualty Event, the Borrower shall make a mandatory prepayment of the Term Loan in an aggregate amount equal to the sum of (A) one hundred percent (100%) of the unused balance of such Net Cash Proceeds received by the Borrower or any other Obligor as a result of such Casualty Event up to the principal amount outstanding of the Term Loan, and (B) any accrued but unpaid interest (including, but not limited to, any accrued but uncapitalized PIK Interest on the First Amendment Term Loan) on such principal amount of the Term Loan being prepaid, provided, further, that to the extent that the property subject to the Casualty Event is Collateral, then any such acquired, replaced, repaired, purchased or constructed property shall be Collateral in which the Administrative Agent, for the benefit of the Lenders, has been granted a security interest under the Security Documents.

(ii) Upon the disposition and sale of the Tucson Real Estate in accordance with Section 8.23, the Borrower shall make a mandatory prepayment of the Term Loan in an aggregate amount equal to the lesser of (i) the entire outstanding Obligations as of such date and (ii) one hundred percent (100%) of the Net Cash Proceeds received by the Borrower in connection with such sale, to be applied pursuant to Section 3.03(d) below.

(c) Prepayment Premium. Without limiting the foregoing, whenever the Prepayment Premium is in effect and payable pursuant to the terms hereof, such premium shall be payable on all payments and prepayments of the Closing Date Term Loan, whether as a result of clause (a) above in this Section 3.03, acceleration or otherwise (but excluding any prepayment pursuant to clause (b) above).

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(d) Application. Proceeds of any prepayment made pursuant to clauses (a) or (b) above shall be applied in the following order of priority, with proceeds being applied to a succeeding level of priority only if amounts owing pursuant to the immediately preceding level of priority have been paid in full in cash:

(i) first, to the payment of any unpaid costs or expenses referred to in Section 14.03 then due and owing;

(ii) second, to the payment of any accrued and unpaid interest (including, but not limited to, accrued but uncapitalized PIK Interest on the First Amendment Term Loan) and any fees then due and owing;

(iii) third, to the payment of unpaid principal of the First Amendment Term Loan;

(iv) fourth, to the payment of the Exit Fee then due and payable;

(v) fifth, to the payment of unpaid principal of the Closing Date Term Loan;

(vi) sixth, to the payment of any Prepayment Premium then due and payable; and

(vvii) ~~fifth~~seventh, to the Borrower or such other Persons as may lawfully be entitled to or directed by the Borrower to receive the remainder.

Section 3.04. Fees.

(a) Closing Fee. On the Closing Date, the Borrower shall pay to the Administrative Agent out of the proceeds of the Term Loan a non-refundable fee in the amount equal to two percent (2%) of the principal amount of the Term Loan advanced by the Lenders on such date (the “Closing Fee”). On the First Amendment Date, the Borrower shall pay to the Administrative Agent out of the proceeds of the First Amendment Term Loan a non-refundable fee in the amount equal to two percent (2%) of the principal amount of the First Amendment Term Loan advanced by the Lenders on such date (the “First Amendment Closing Fee”). Payment of the Closing Fee and the First Amendment Closing Fee shall be in addition to such fees, costs and expenses due and payable pursuant to Section 14.03. Upon receipt of payment from the Borrower, the Administrative Agent will promptly thereafter distribute like funds relating to any such payment to the Lenders pro rata on the basis of each Lender’s Proportionate Share.

(b) Exit Fee. On the First Amendment Maturity Date or on the earlier repayment of the First Amendment Term Loans in full (provided that such earlier repayment occurs after December 31, 2019), the Borrower agrees to pay to the Administrative Agent for distribution to the Lenders a fee equal to five percent (5%) of the aggregate outstanding principal amount of the First Amendment Term Loan (the “Exit Fee”).

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Agreement.

(i) Material Adverse Change. No Material Adverse Change shall have occurred since December 31, 2017.

(j) Fees and Expenses, Etc. Each of the Administrative Agent and each Lender shall have received, for its own account, the fees, costs and expenses due and payable to it on the Closing Date pursuant to Sections 3.04(a) and 14.03, including all reasonable closing costs and fees and all unpaid reasonable expenses of the Administrative Agent and the Lenders incurred in connection with the Transactions (including the Administrative Agent’s and the Lenders’ reasonable and documented legal fees and expenses).

(k) Collateral Questionnaire. The Administrative Agent shall have received a fully completed Collateral Questionnaire, dated as of the Closing Date, duly executed and delivered by a Responsible Officer of each Obligor.

(l) Warrant. The Administrative Agent shall have received the executed Warrant, dated as of the Closing Date.

(m) Insurance. The Administrative Agent shall have received (x) certificates and endorsements of insurance evidencing the existence of all insurance required to be maintained by the Obligors and their respective Subsidiaries pursuant to Section 8.05 and the designation of the Administrative Agent as the Borrower’s loss payee or additional insured, as applicable and (y) a fully paid title insurance policy, with endorsements and in an amount acceptable to the Administrative Agent, issued by a nationally recognized title insurer acceptable to Administrative Agent, insuring the Mortgage to be a valid first and subsisting Lien on the real property described therein, free and clear (or insured over) of all defects (including, but not limited to, mechanics’ and materialmen’s Liens) and encumbrances, excepting only Permitted Liens, and providing for such other affirmative assurances as may be reasonably requested by the Administrative Agent.

(n) Pay-Off Letters. The Administrative Agent shall have received executed Pay-Off Letters terminating and cancelling the Pay-Off Indebtedness in full, in form and substance reasonably acceptable to it.

(o) Due Diligence. The Administrative Agent and the Lenders shall have received and be satisfied with all due diligence (including without limitation historical financial statements, projections, technical, operational, legal, intellectual property, commercial market forecasts, clinical and regulatory assessments, supply chain, securities, labor, Tax, litigation, environmental, reimbursement and regulatory authority matters) in their sole discretion.

(p) Parent Loan Documents. The Administrative Agent shall have received executed copies of all Parent Loan Documents.

(q) Bridge Notes. The Administrative Agent shall have received executed

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transaction (including the purchase, sale, lease, transfer or exchange of property or assets of any kind or the rendering of services of any kind) with any Affiliate during the three-year period prior to the Closing Date.

Section 7.21. OFAC. Except as set forth on Schedule 7.21, no Obligor nor any of its Subsidiaries, nor, to the knowledge of the Borrower, any of their respective directors, officers, or employees nor, to the knowledge of the Borrower, any agents or other Persons acting on behalf of any of the foregoing (i) is currently the target of any Sanctions, (ii) is located, organized or residing in any Designated Jurisdiction, (iii) is or has been engaged in any transaction with, or for the benefit of, any Person who is now or was then the target of Sanctions or who is located, organized or residing in any Designated Jurisdiction or (iv) is or has ever been in violation in any material respect of or subject to an investigation relating to Sanctions. No Term Loan, nor the proceeds from the Term Loan, has been or will be used, directly or indirectly, to lend, contribute or provide to, or has been or will be otherwise made available to fund, any activity or business in any Designated Jurisdiction or to fund any activity or business of any Person, to the Borrower’s knowledge, located, organized or residing in any Designated Jurisdiction or who is the subject of any Sanctions, or in any other manner that will result in any violation in any material respect by Parent or any of its Subsidiaries of Sanctions.

Section 7.22. Anti-Corruption. No Obligor nor any of its Subsidiaries, nor, to the knowledge of the Borrower, any of their respective directors, officers or employees nor, to the knowledge of the Borrower, any agents or other Persons acting on behalf of any of the foregoing, directly or indirectly, has (i) violated or is in violation, in any material respect, of any applicable anti-corruption Law, or (ii) made, offered to make, promised to make or authorized the payment or giving of, directly or indirectly, any Prohibited Payment. To the Borrower’s knowledge, no Obligor has been subject to any investigation by any Governmental Authority with regard to any actual or alleged Prohibited Payment.

Section 7.23. Deposit and Disbursement Accounts. Schedule 7.23 contains a list of all banks and other financial institutions at which any Obligor or any of its Subsidiaries maintains Deposit Accounts, Securities Accounts and Commodity Accounts, and Schedule 7.23 sets forth the name, address and telephone number of each such bank or financial institution, the name in which such account is held, the type of such account and the complete account number therefor.

Section 7.24. Royalty and Other Payments. Except as set forth on Schedule 7.24, no Obligor, nor any of its Subsidiaries, is obligated to pay any royalty, milestone payment, deferred payment or any other contingent payment.

Section 8. Affirmative Covenants.

Each Obligor covenants and agrees with the Lenders that, until the Commitments have expired or been terminated and all Obligations (other than Warrant Obligations and contingent obligations as to which no claims have been asserted) have been indefeasibly paid in full in cash; provided, however, that the covenants set forth in Sections 8.21, 8.22 and 8.23 shall terminate upon payment in full of the unpaid principal amount owed under the First Amendment Term Loan and all accrued and unpaid PIK Interest on the First Amendment Term Loan:

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(b) the Obligors shall deposit promptly, and in any event no later than five (5) Business Days after the date of receipt thereof, all cash, checks, drafts or other similar items of payment relating to or constituting payments made in respect of any and all accounts and other rights and interests into a Deposit Account of an Obligor (which Deposit Account shall, on and after the Closing Date (or such later date as agreed to by the Administrative Agent in its reasonable discretion), be a Controlled Account).

Section 8.17. Post-Closing Obligations. Within the time periods specified on Schedule 8.17 (as each may be extended by the Administrative Agent in its reasonable discretion), complete such undertakings as are set forth on Schedule 8.17.

Section 8.18. Milestone. On or before March 31, 2019, enter into a collaboration agreement with a pharmaceutical or biotechnology company that results in aggregate upfront fees in excess of $5,000,000.

Section 8.19. Icagen-T Lien. Within thirty (30) days after the earlier of (i) the date the S/I MSA no longer prohibits Parent from pledging Borrower’s Equity Interests to the Administrative Agent and (ii) the date the S/I MSA is terminated, Parent shall (x) deliver all certificates representing 100% of Borrower’s Equity Interests to the Administrative Agent, accompanied by undated instruments of transfer duly executed in blank and (y) if Administrative Agent shall so require, enter into a pledge agreement with respect to such Equity Interests in form and substance reasonably acceptable to the Administrative Agent.

Section 8.20. Board Observer Rights. Until the Obligations (other than the Warrant Obligations and contingent indemnification obligations for which no claim has been made) have been paid in full in cash, Parent shall permit the Administrative Agent on behalf of all of the Lenders (the “Observer”) to attend and observe (but not vote) at all meetings of Parent’s (or any Subsidiary’s, as applicable) Board or any committee thereof (each a “Committee”), whether in person, by telephone or otherwise as requested by the Observer. Parent and such Subsidiaries shall notify the Observer in writing at the same time as furnished to members of the applicable Board or Committee of (i) the date and time for each general or special meeting of any such Board or Committee and (ii) the adoption of any resolutions or actions by any such Board or any such Committee by written consent (describing, in reasonable detail, the nature and substance of such action). Parent and each of its Subsidiaries shall concurrently deliver to the Observer all notices and any materials delivered to the official members of such Board or Committee in connection with a meeting or action to be taken by written consent, including a draft of any material resolutions or actions proposed to be adopted by written consent. The Observer shall be free prior to such meeting or adoption by written consent to contact members of any applicable Board or Committee and discuss the pending actions to be taken. Notwithstanding the foregoing, the Observer shall not be entitled to receive materials relating to, or be in attendance for, any discussions relating to topics which (x) are subject to attorney client privilege, or (y) present a conflict of interest for the Observer. All such discussions and materials shall be subject to the confidentiality provisions set forth in Section 14.16.

Section 8.21. Cash Flow. No later than Wednesday of each week (beginning September 4, 2019), the Obligors shall provide to the Administrative Agent and the Lenders a 13-week cash

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flow forecast showing projected cash receipts and cash disbursements (including referencing line item sources and uses of cash) of the Obligors over the immediately succeeding 13-week period.

Section 8.22. Sanofi Agreement. On or before January 31, 2020, the Borrower shall have caused the termination of the S/I MSA and the release of all Liens thereunder (including, without limitation, the S/I Deed of Trust and the S/I Warranty and Reverter Deed).

Section 8.23. Tucson Real Estate. On or before February 28, 2020, the Borrower shall have caused the disposition and sale of the real property in Tucson, Arizona at which its research and development site is located (the “Tucson Real Estate”), the proceeds of which shall be greater than or equal to $20,000,000.

Section 8.24. Series C Capital Raise. On or before November 30, 2019, the Series C Holders or other investors shall have made new cash equity contributions to the Parent in an aggregate amount of not less than $2,500,000.

Section 8.25 Subordinated Notes. On or before the First Amendment Date, the Parent shall have issued the initial Subordinated Notes, under which the Parent shall have received $500,000.

Section 9. Negative Covenants.

Section 9.01. Indebtedness. Such Obligor will not, and will not permit any of its Subsidiaries to, create, incur, assume or permit to exist any Indebtedness, whether directly or indirectly, except:

(a) the Obligations;

(b) Indebtedness existing on the on the Closing Date and set forth on Schedule 7.13(a) and Permitted Refinancings thereof;

(c) accounts payable to trade creditors for goods and services and current operating liabilities (not the result of the borrowing of money) incurred in the ordinary course of such Obligor’s or such Subsidiary’s business in accordance with customary terms and paid within ninety (90) days of becoming due, unless contested in good faith by appropriate proceedings and reserved for in accordance with GAAP;

(d) Indebtedness consisting of guarantees resulting from the endorsement of negotiable instruments for collection in the ordinary course of business;

(e) Indebtedness of an Obligor and its Subsidiaries to the extent the same is permitted as an Investment pursuant to Section 9.05;

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Warrant Obligations) pursuant to the terms of the applicable promissory notes or an intercompany subordination agreement, in each case in form and substance satisfactory to the Administrative Agent in its sole discretion;

(q) Indebtedness owed to Pfizer, Inc. pursuant to the terms of that certain Asset Purchase and Collaboration Agreement, dated as of June 26, 2015, by and among Pfizer Research (NC), Inc. and Parent, as amended by that certain Amendment to Asset Purchase and Collaboration Agreement, dated as of July 15, 2016; ~~and~~

(r) (A) the Bridge Notes, provided that on or prior to the Closing Date, the Bridge Notes have been amended in form and substance satisfactory to the Administrative Agent to subordinate right of payment to the payment in full of the Obligations (other than the Warrant Obligations), subject to permitted payments under Section 9.07, and (B) any Permitted Refinancings thereof, provided that Parent may elect to increase the interest rate on such Bridge Notes to 12% per annum, payable in accordance with Section 9.07 hereof; and

(s) Indebtedness incurred under the Subordinated Notes.

Section 9.02. Liens. Such Obligor will not, and will not permit any of its Subsidiaries to, create, incur, assume or permit to exist any Lien on any property now owned or hereafter acquired by it or such Subsidiary, except:

(a) Liens securing the Obligations;

(b) any Lien on any property or asset of such Obligor or any of its Subsidiaries existing on the Closing Date and set forth on Schedule 7.13(c); provided that (i) no such Lien shall extend to any other property or asset of such Obligor or any of its Subsidiaries other than that which it secures on the date hereof and any cross-collateralization of other assets financed with the same holder of such Lien, and (ii) any such Lien shall secure only those obligations which it secures on the Closing Date and extensions, renewals and replacements thereof that do not increase the outstanding principal amount thereof, plus fees and expenses incurred in connection therewith;

(c) Liens securing Indebtedness permitted by Section 9.01(g); provided that (i) such Liens are limited solely to the assets, products, proceeds and books and records permitted to be secured pursuant to Section 9.01(g), and (ii) the Indebtedness secured thereby does not exceed the lower of the cost or fair market value of the assets being financed or acquired and Liens incurred in connection with extension, renewal or refinancing of such Indebtedness;

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(d) Certain Covenants. Any Obligor shall fail to observe or perform any covenant, condition or agreement contained in Sections 8.03 (with respect to such Obligor’s existence), 8.11, 8.12, 8.14, 8.16, 8.21, 8.22, 8.23, 8.24, 8.25, Section 9 or Section 10.

(e) Other Covenants. Any Obligor shall fail to observe or perform any covenant or agreement contained in this Agreement (other than those specified in Section 11.01(a), (b) or (d)) or any other Loan Document, and, in the case of any failure that is capable of cure, such failure shall continue unremedied for a period of thirty (30) or more days.

(f) Payment Default on Other Indebtedness. Any Obligor or any of its Subsidiaries shall fail to make any payment (whether of principal or interest and regardless of amount) in respect of any Material Indebtedness, when and as same shall become due and payable after giving effect to any applicable grace or cure period as originally provided by the terms of such Indebtedness.

(g) Other Defaults on Other Indebtedness. (i) Any material breach of, or “event of default” or similar event under, the Contract governing any Material Indebtedness shall occur, or (ii) any event or condition occurs (x) that results in any Material Indebtedness becoming due prior to its scheduled maturity or (y) that enables or permits (with or without the giving of notice, the lapse of time or both) the holder or holders of such Material Indebtedness or any trustee or agent on its or their behalf to cause such Material Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity; provided that this Section 11.01(g) shall not apply to secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Material Indebtedness; provided further that if the holder or holders of such Material Indebtedness or any trustee or agent on its or their behalf waives any such event or condition within the time period set forth therein, then such event or condition shall not be an Event of Default hereunder.

(h) Reserved.

(i) Insolvency, Bankruptcy, Etc. (i) Any Obligor or any of its Subsidiaries generally does not pay its debts as the same become due or admits in writing its inability to pay its debts generally; (ii) any Obligor or any of its Subsidiaries institutes any Insolvency Proceeding; (iii) any Obligor or any of its Subsidiaries takes any corporate action to approve, effect, consent to or authorize any of the actions described in Section 11.01(i)(ii); or (iv) any Insolvency Proceeding is filed against any Obligor or any of its Subsidiaries and, such Insolvency Proceeding continues undismissed, or unstayed and in effect, for a period of sixty (60) days after the institution thereof.

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purposes of this Agreement and the other Loan Documents.

Section 11.04. Prepayment Premium and Prepayment Price. For the avoidance of doubt, (x) the applicable Prepayment Premium (as a component of the Prepayment Price) shall be due and payable at any time the Closing Date Term Loan becomes due and payable in full prior to the Maturity Date in accordance with the terms hereof and (y) the Exit Fee shall be due and payable at any time the First Amendment Term Loan becomes due and payable in full prior to the First Amendment Maturity Date in accordance with the terms hereof, in the case of each of clause (x) and (y) above, whether due to acceleration pursuant to the terms of this Agreement (in which case it shall be due immediately, upon the giving of notice to the Borrower or automatically by operation of law or otherwise in accordance with Section 11.02) (including, without limitation, on account of any bankruptcy filing). In view of the impracticability and extreme difficulty of ascertaining the actual amount of damages to the Lenders or profits lost by the Lenders as a result of such acceleration, and by mutual agreement of the parties as to a reasonable estimation and calculation of the lost profits or damages of the Lenders, the Prepayment Premium and the Exit Fee, as applicable, shall be due and payable upon such date. Each Obligor hereby waives any defense to payment, whether such defense may be based in public policy, ambiguity, or otherwise. The Obligors and the Lenders acknowledge and agree that any Prepayment Premium or Exit Fee due and payable in accordance with this Agreement shall not constitute unmatured interest, whether under Section 5.02(b)(3) of the Bankruptcy Code or otherwise. Each Obligor further acknowledges and agrees, and waives any argument to the contrary, that payment of such amount does not constitute a penalty or an otherwise unenforceable or invalid obligation.

Section 12. Guarantee.

Section 12.01. The Guarantee. Parent and the Subsidiary Guarantors hereby jointly and severally guarantee to the Administrative Agent and the Lenders, and their successors and assigns, the prompt payment in full when due (whether at stated maturity, by acceleration or otherwise) of the principal of and interest on the Term Loan, all fees and other amounts and Obligations from time to time owing to the Administrative Agent and the Lenders by the Borrower and each other Obligor under this Agreement or under any other Loan Document, in each case strictly in accordance with the terms hereof and thereof (such obligations being herein collectively called the “Guaranteed Obligations”). Parent and the Subsidiary Guarantors hereby further jointly and severally agree that if the Borrower or any other Obligor shall fail to pay in full when due (whether at stated maturity, by acceleration or otherwise) any of the Guaranteed Obligations, Parent and the Subsidiary Guarantors will promptly pay the same, without any demand or notice whatsoever, and that in the case of any extension of time of payment or renewal of any of the Guaranteed Obligations, the same will be promptly paid in full when due (whether at extended maturity, by acceleration or otherwise) in accordance with the terms of such extension or renewal.

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ANNEX B

Conformed Credit Agreement

(First Amendment)