SECOND Amendment to Loan, Guaranty and security agreement
Exhibit 4.1
SECOND Amendment
to
Loan, Guaranty and security agreement
This Second Amendment to Loan, Guaranty, and Security Agreement (this “Amendment”) is entered into this 6th day of December, 2023, by and among (a) ASLAN PHARMACEUTICALS (USA) INC., a Delaware corporation (“Borrower Representative”), ASLAN PHARMACEUTICALS LIMITED, an exempted company incorporated under the laws of the Cayman Islands and each other Person party hereto as a borrower from time to time (“Parent”, and together with Borrower Representative, collectively, “Borrowers”, and each, a “Borrower”), (b) ASLAN PHARMACEUTICALS PTE. LTD., a private company limited by shares formed under the laws of the Republic of Singapore (“ASLAN LTD” and together with each other Person party hereto or any other Loan Documents as a guarantor from time to time, collectively, “Guarantors” and each, a “Guarantor”, and together with Borrowers, collectively, “Loan Parties”, and each, a “Loan Party”), (c) K2 HEALTHVENTURES LLC as a lender, and the other lenders from time to time party hereto (collectively, “Lenders”, and each, a “Lender”), (d) K2 HEALTHVENTURES LLC, as administrative agent for Lenders (in such capacity, together with its successors, “Administrative Agent”), and (e) ANKURA TRUST COMPANY, LLC, as collateral agent for Lenders (in such capacity, together with its successors, “Collateral Trustee”).
Recitals
A. The Secured Parties and the Loan Parties have entered into that certain Loan, Guaranty and Security Agreement dated as of July 12, 2021, as amended by that certain First Amendment to Loan, Guaranty and Security Agreement dated as of June 30, 2023 (as the same may from time to time be amended, modified, supplemented or restated, the “Loan Agreement”).
B. Lender has extended credit to the Loan Parties for the purposes permitted in the Loan Agreement.
C. The Loan Parties have requested that Administrative Agent amend the Loan Agreement to make certain revisions to the Loan Agreement as more fully set forth herein.
D. Administrative Agent has agreed to so amend certain provisions of the Loan Agreement, but only to the extent, in accordance with the terms, subject to the conditions and in reliance upon the representations and warranties set forth below.
Agreement
Now, Therefore, in consideration of the foregoing recitals and other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, and intending to be legally bound, the parties hereto agree as follows:
“(d) Each Loan Party is the sole owner of the Intellectual Property which it owns or purports to own except for (i) licenses constituting “Permitted Transfers”, (ii) open-source software, (iii) over-the-counter software that is commercially available to the public, (iv) material Intellectual Property licensed to such Loan Party and noted on the Perfection Certificate or as disclosed pursuant to Section 6.7(c), and (v) immaterial Intellectual Property licensed to such Loan Party. Each Patent (other than patent applications) which it owns or purports to own and which is material to such Loan Party’s business is, to the knowledge of the Loan Parties, valid and enforceable, and no part of the Intellectual Property which a Loan Party owns or purports to own and which is material to the Loan Parties’ business has been judged invalid or unenforceable, in whole or in part. To the best of each Loan Party’s knowledge, no claim has been made that any part of the Intellectual Property violates the rights of any third party except to the extent such claim could not reasonably be expected to have a Material Adverse Effect. Except as noted on the Perfection Certificate or Schedule 5.2(d) hereto or as disclosed pursuant to Section 6.7(c), no Loan Party is a party to, nor is it bound by, any Restricted License. No Subsidiary which is not a Loan Party owns any material Intellectual Property. It will not be necessary to use any inventions of any of such Loan Party’s employees or consultants (or Persons it currently intends to hire) made prior to their employment by such Loan Party. Each current and prior employee, consultant or other Affiliate thereof has entered into an invention assignment agreement or similar agreement with such Loan Party with respect to all intellectual property rights he or she owns that are related to the Loan Parties’ business.”
“(e) Annual Audited Financial Statements. As soon as available, but no later than (i) for Parent’s fiscal year ending December 31, 2023, one hundred twenty (120) days after the last day of such fiscal year, and (ii) for each other fiscal year of Parent, ninety (90) days after the last day of Parent’s fiscal year, audited consolidated financial statements prepared in accordance with IFRS, consistently applied, together with an unqualified opinion on the financial statements from an independent certified public accounting firm reasonably acceptable to Administrative Agent, together with any management letter with respect thereto;
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“ (b) If any Loan Party (i) obtains any Patent, registered Trademark, registered Copyright, registered mask work, or any pending application for any of the foregoing, whether as owner or licensee, or (ii) applies for any Patent or the registration of any Trademark (other than Excluded Property), then Borrower Representative shall provide written notice thereof to Administrative Agent contemporaneously with the delivery of the then-next Compliance Certificate required to be delivered hereunder pursuant to Section 6.2(c) and shall execute such intellectual property security documents and other documents and take such other actions as Administrative Agent may reasonably request to perfect and maintain a first priority perfected security interest, in favor of Collateral Trustee, to protect Collateral Trustee’s interest in such property pursuant to applicable law. If a Loan Party decides to register any Copyrights or mask works in the United States Copyright Office, Borrower Representative shall: (x) provide Administrative Agent with at least fifteen (15) days prior written notice of such Loan Party’s intent to register such Copyrights or mask works together with a copy of the application it intends to file with the United States Copyright Office (excluding exhibits thereto); (y) execute an intellectual property security document and such other documents and take such other actions as Administrative Agent may reasonably request to perfect and maintain a first priority perfected security interest in favor of Collateral Trustee in the Copyrights or mask works intended to be registered with the United States Copyright Office; and (z) record such intellectual property security document with the United States Copyright Office contemporaneously with filing the Copyright or mask work application(s) with the United States Copyright Office.”
“ “Amortization Date” means January 1, 2025.”
“ “Excluded Property” is defined in the definition of “Collateral”.
“ “Loan Documents” means, collectively, this Agreement and any schedules, exhibits, certificates, notices, and any other documents related to this Agreement, the Warrant, the Share Charge, the Fee Letter, the Collateral Trust Agreement, the Automatic Payment Authorization, the Account Control Agreements, the Collateral Access Agreements, the Disclosure Letter, the IP Security Deed, any Subordination Agreement, any note, or notes or guaranties executed by a Loan Party, and any other present or future agreement by a Loan Party with or for the benefit of Collateral Trustee or any Lender in connection with this Agreement, all as amended, modified, supplemented, extended or restated from time to time.”
“ “IP Security Deed” means that certain security deed (intellectual property) dated on or about the date of the Second Amendment to this Agreement by and among ASLAN LTD, as chargor, and Collateral Trustee with respect to ASLAN LTD's Intellectual Property, as amended, modified, supplemented, extended or restated from time to time.”
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“ The Collateral consists of all of each Loan Party’s right, title and interest in and to the following personal property wherever located, whether now owned or existing or hereafter acquired, created or arising:
All goods, Accounts (including health-care receivables), Equipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, General Intangibles, Intellectual Property, commercial tort claims, documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), securities, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and all such Loan Party’s Books relating to the foregoing, and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds (both cash and non-cash) and insurance proceeds of any or all of the foregoing.
Notwithstanding the foregoing, the Collateral does not include (each of the following, “Excluded Property”) (i) any United States intent-to-use trademark or service mark applications filed pursuant to Section 1(b) of the Xxxxxx Act, 15 U.S.C. § 1051, at all times prior to the filing of a “Statement of Use” pursuant to Section 1(d) of the Xxxxxx Act or an “Amendment to Allege Use” pursuant to Section 1(c) of the Xxxxxx Act with respect thereto with the United States Patent and Trademark Office or otherwise, (ii) Equity Interests in Jaguahr Therapeutics, or (iii) any property to the extent that such grant of security interest is prohibited by any Requirement of Law of a Governmental Authority or constitutes a breach or default under or results in the termination of or requires any consent not obtained under, any contract, license, agreement, instrument or other document evidencing or giving rise to such property, except to the extent that such Requirement of Law or the term in such contract, license, agreement, instrument or other document providing for such prohibition, breach, default or termination or requiring such consent is ineffective under Section 9-406, 9-407, 9-408 or 9-409 of the Code (or any successor provision or provisions) of any relevant jurisdiction or any other applicable law (including the Bankruptcy Code) or principles of equity; provided, however, that such security interest shall attach immediately at such time as such Requirement of Law is not effective or applicable, or such prohibition, breach, default or termination is no longer applicable or is waived, and to the extent severable, shall attach immediately to any portion of the Collateral that does not result in such consequences.”
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[Signature page follows.]
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In Witness Whereof, the parties hereto have caused this Amendment to be duly executed and delivered as of the date first written above.
LENDER |
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K2 HEALTHVENTURES LLC By: /s/ Xxxx Xxxxx . Name: Xxxx Xxxxx Xxxxx: Managing Director & CIO
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ADMINISTRATIVE AGENT |
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K2 HEALTHVENTURES LLC By: /s/ Xxxx Xxxxx . Name: Xxxx Xxxxx Xxxxx: Managing Director & CIO |
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BORROWERS: |
EXECUTED AS A DEED: |
ASLAN PHARMACEUTICALS LIMITED By: /s/ Xxxx Xxxxx Xxxxx Xxxxxx Xxxxx Xxxx: Xxxx Xxxxx Xxxxx Xxxxxx Xxxxx Xxxxx: Director
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XXXXX PHARMACEUTICALS (usa) xXX. Xx: /s/ Xxxx Xxxxx Xxxxx Xxxxxx Xxxxx Xxxx: Xxxx Xxxxx Xxxxx Xxxxxx Xxxxx Xxxxx: Director |
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GUARANTOR: |
EXECUTED AND DELIVERED AS A DEED For and on behalf of ASLAN PHARMACEUTICALS PTE. XXX. Xx: /s/ Xxxx Xxxxx Xxxxx Xxxxxx Xxxxx Xxxx: Xxxx Xxxxx Xxxxx Xxxxxx Xxxxx Xxxxx: Director
By: /s/ Xxxxx Xxxxxxxx Xxxx: Xxxxx Xxxxxxxx Xxxxx: Director/Secretary
/ In the presence of:- /s/ Xxxxx Xxx Xxxx: Xxxxx Xxx Xxxxxxx Xxxxxxx of witness:] 0 Xxxxxxx Xxxxxx Xxxxx 00, Xxxxxxxxx 000000
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1 Note: This Agreement will need to be signed for and on behalf of the Guarantor by 2 directors, 1 director and 1 secretary, or 1 director and 1 witness.
Annex I
EXHIBIT D
COMPLIANCE CERTIFICATE
TO: K2 HEALTHVENTURES LLC, as Administrative Agent FROM: ASLAN PHARMACEUTICALS (USA) INC. ASLAN PHARMACEUTICALS LIMITED |
Date: _________________ |
Reference is made to that certain Loan, Guaranty, and Security Agreement, dated July 12, 2021 (as amended, restated, supplemented or otherwise modified, from time to time, the “Agreement”), among (a) ASLAN PHARMACEUTICALS (USA) INC., a Delaware corporation (“Borrower Representative”), ASLAN PHARMACEUTICALS LIMITED, an exempted company incorporated under the laws of the Cayman Islands and each other Person party thereto as a borrower from time to time (“Parent”, and together with Borrower Representative, collectively, “Borrowers”, and each, a “Borrower”), (b) ASLAN PHARMACEUTICALS PTE. LTD., a private company limited by shares formed under the laws of the Republic of Singapore (“ASLAN LTD” and together with each other Person party hereto or any other Loan Documents as guarantor from time to time, collectively, “Guarantors” and each, a “Guarantor”, and together with Borrowers, collectively, “Loan Parties”, and each, a “Loan Party”), (c) K2 HEALTHVENTURES LLC and any other lender from time to time party thereto and the lenders from time to time party thereto (collectively, “Lenders”, and each, a “Lender”), (d) K2 HEALTHVENTURES LLC, as administrative agent for Xxxxxxx (in such capacity, together with its successors, “Administrative Agent”), and (e) ANKURA TRUST COMPANY, LLC, as collateral agent for Lenders (in such capacity, together with its successors, “Collateral Trustee”). Capitalized terms have meanings as defined in the Agreement.
The undersigned authorized officer of Borrower Representative, hereby certifies in accordance with the terms of the Agreement as follows:
(1) Each Borrower is in compliance for the period ending ________ with all covenants set forth in the Agreement; (2) no Event of Default has occurred and is continuing; and (3) the representations and warranties in the Agreement are true and correct in all material respects on this date; provided, however, that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof; and provided, further that those representations and warranties expressly referring to a specific date shall be true, accurate and complete in all material respects as of such date.
The undersigned certifies that all financial statements delivered herewith are prepared in accordance with IFRS (other than, with respect to unaudited financials for the absence of footnotes and being subject to normal year-end adjustments), consistently applied from one period to the next. Capitalized terms used but not otherwise defined herein shall have the meanings given them in the Agreement.
Please indicate compliance status by circling Yes/No under “Complies” column.
Reporting Covenants |
Required |
Complies |
Monthly financial statements and Compliance Certificate |
Monthly, within 30 days |
Yes No |
A/P Aging Reports |
Monthly, within 30 days |
Yes No |
Quarterly financial statements |
Quarterly, within 45 days |
Yes No |
Annual Operating Budget and Financial Projections |
Annually, within 30 days of fiscal year end and within 5 days of any material modification |
Yes No |
Annual audited financial statements and any management letters |
Annually, within (i) 120 days for Borrower’s 2023 fiscal year end and (ii) 90 days of any other fiscal year end |
Yes No |
Statements, reports and notices to stockholders or holders of Subordinated Debt |
Within 5 days of delivery |
Yes No |
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SEC filings |
Within 5 days after filing with SEC |
Yes No |
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Legal action notices and updates |
Promptly |
Yes No |
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Board or advisory board materials |
Within 5 Business Days of Parent’s Board meeting |
Yes No |
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Board minutes |
Within 5 Business Days of Parent’s Board meeting |
Yes No |
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IP report |
At the end of each fiscal quarter |
Yes No |
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Bank account statements (with transaction detail) |
Together with monthly financial statements |
Yes No |
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Product related material correspondence, reports, documents and other filings |
Within 5 Business Days |
Yes No |
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Copies of preferred stock financing documents |
Together with Compliance Certificate due after closing of such financing |
Yes No |
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Other Covenants |
Required |
Actual |
Complies |
Equipment financing Indebtedness |
Not to exceed $500,000.00 outstanding |
$ |
Yes No |
Repurchases of stock from former employees, officers and directors |
Not to exceed $500,000.00 per fiscal year |
$ |
Yes No |
Other Investments in non-Loan Party Subsidiaries |
Not to exceed $500,000.00 per fiscal year |
$ |
Yes No |
Deposits or pledges for bids, tenders, contracts, leases, surety or appeal bonds |
Not to exceed $500,000.00 at any time |
$ |
Yes No |
Other Matters
Please list any SEC filings made since the most recently delivered Compliance Certificate:
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Has any Borrower changed its legal name, jurisdiction of organization or chief executive office? If yes, please complete details below:
_______________________________________________________________________
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Yes |
No |
Has there been any change in Key Person? If so, please describe appointment of any interim replacement (required within 30 days) or full-time replacement by a candidate with equivalent qualifications:
_______________________________________________________________________
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Yes |
No |
Have any new Subsidiaries been formed? If yes, please provide complete schedule below.
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Yes |
No |
Legal Name of Subsidiary |
Jurisdiction of Organization |
Holder of Subsidiary Equity Interests |
Equity Interests Certificated? (Y/N) |
Jurisdiction |
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Have any new Deposit Accounts or Securities Accounts been opened? If yes, please complete schedule below.
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Yes |
No |
Accountholder |
Deposit Account / Intermediary |
Address |
Account Number |
Account Control Agreement in place or an Excluded Account? (Y/N) |
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Is there any new Product not previously disclosed on the Perfection Certificate or any prior Compliance Certificate? If yes, please complete details below:
_______________________________________________________________________
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Yes |
No |
Has there been any material change to anticipated or scheduled Royalty, Milestone, and Earn-Out Payments? If yes, please attach an updated schedule A to the Disclosure Letter.
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Yes |
No. |
Has any Loan Party added any new lease location, bailee location or other location where Collateral is maintained? If yes, please describe below: _______________________________________________________________________
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Yes |
No |
Has any Loan Party entered into a Restricted License? If yes, please describe below: _______________________________________________________________________
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Yes |
No |
Has any Loan Party (i) obtained any Patent, registered Trademark, registered Copyright, registered mask work, or any pending application for any of the foregoing, whether as owner or licensee, or (ii) applied for any Patent or the registration of any Trademark (other than Excluded Property):
_______________________________________________________________________
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Yes |
No |
The following are the exceptions with respect to the certification above: (If no exceptions exist, state “No exceptions to note.”)
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BORROWER REPRESENTATIVE:
XXXXX XXXXXXXXXXXXXXX (USA) XXX. Xx: Name: Title:
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Xxxxx XX
Schedule 5.2(d)
[Xxxxxxxx’s counsel please provide amendments to licenses agreement which were not disclosed/reviewed in connection with original LSA closing]
