AMENDMENT NO. 1 TO LOAN AND SECURITY AGREEMENT
Exhibit 10.1
This Amendment No. 1 to Loan and Security Agreement (this “Amendment”) is
entered into this 20th day of September, 2010 by and between Alexza
Pharmaceuticals, Inc., a Delaware corporation (“Parent”), Symphony Allegro, Inc., a
Delaware corporation (“Allegro”, and together with Parent, collectively, “Borrower”), and
Hercules Technology Growth Capital, Inc., a Maryland corporation (“Lender”). Capitalized terms
used herein without definition shall have the same meanings given them in the Loan Agreement (as
defined below).
Recitals
A. Borrower and Lender have entered into that certain Loan and Security Agreement
dated as of May 4, 2010 (as may be amended, restated, or otherwise modified, the “Loan
Agreement”), pursuant to which the Lender has agreed to extend and make available to
Borrower certain advances of money.
B. Borrower and Lender have agreed to amend the Loan Agreement upon the terms
and conditions more fully set forth herein.
Agreement
NOW, THEREFORE, in consideration of the foregoing Recitals and intending to be legally bound,
the parties hereto agree as follows:
1. Amendments.
1.1 Section 3.1 (Security Interest). The proviso at the end of the first sentence of Section
3.1 is hereby amended and restated in its entirety as follows:
“; provided, however, that the Collateral shall not include (i) the Borrower’s
Intellectual Property but shall include all Accounts and General Intangibles that consist of rights
to payment and proceeds from the sale, licensing or disposition of all or any part, or rights in,
the Intellectual Property (the “Rights to Payment”) and (ii) the Equipment listed on Schedule A
hereto (and all additions, attachments, accessories and accessions thereto, and any and all
substitutions, replacements or exchanges therefore, and all insurance or other proceeds thereof)
securing the Indebtedness to GE permitted pursuant to clause (ii) of the defined term “Permitted
Indebtedness”, provided, that, notwithstanding that certain Partial Release, dated as of September
20, 2010, by Borrower and Lender in favor or GE, upon payment in full of such Indebtedness to GE
the Collateral shall include such Equipment.”
2. Borrower’s Representations And Warranties. Borrower represents and
warrants that:
(a) immediately upon giving effect to this Amendment (i) the representations and warranties
contained in the Loan Documents are true, accurate and complete in all material respects as of the
date hereof (except to the extent such representations and warranties relate to an earlier date,
in which case they are true and correct as of such date), and (ii) no Event of Default has
occurred and is continuing;
(b) Borrower has the corporate power and authority to execute and deliver this Amendment and
to perform its obligations under the Loan Agreement, as amended by this Amendment;
(c) the certificate or articles of incorporation, bylaws and other organizational documents
of Borrower delivered to Lender on the Closing Date remain true, accurate and complete and have
not been amended, supplemented or restated and are and continue to be in full force and effect;
(d) the execution and delivery by Borrower of this Amendment and the performance by Borrower
of its obligations under the Loan Agreement, as amended by this Amendment, have been duly
authorized by all necessary corporate action on the part of Borrower;
(e) this Amendment has been duly executed and delivered by Borrower and is the binding
obligation of Borrower, enforceable against it in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium
or other similar laws of general application and equitable principles relating to or affecting
creditors’ rights; and
(f) as of the date hereof, it has no defenses against the obligations to pay any amounts
under the Obligations. Borrower acknowledges that Lender has acted in good faith and has conducted
in a commercially reasonable manner its relationships with Borrower in connection with this
Amendment and in connection with the Loan Documents.
Borrower understands and acknowledges that Lender is entering into this Amendment in reliance
upon, and in partial consideration for, the above representations and warranties, and agrees that
such reliance is reasonable and appropriate.
3. Limitation. The amendments set forth in this Amendment shall be limited
precisely as written and shall not be deemed (a) to be a waiver or modification of any other term
or condition of the Loan Agreement or of any other instrument or agreement referred to therein or
to prejudice any right or remedy which Lender may now have or may have in the future under or in
connection with the Loan Agreement or any instrument or agreement referred to therein; or (b) to be
a consent to any future amendment or modification or waiver to any instrument or agreement the
execution and delivery of which is consented to hereby, or to any waiver of any of the provisions
thereof. Except as expressly amended hereby, the Loan Agreement shall continue in full force and
effect.
4. Effectiveness. This Amendment shall become effective upon the
satisfaction of all the following conditions precedent:
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4.1 Amendment. Borrower and Lender shall have duly executed and delivered this Amendment
to Lender.
5. Counterparts. This Amendment may be signed in any number of counterparts,
and by different parties hereto in separate counterparts, with the same effect as if the signatures
to each such counterpart were upon a single instrument. All counterparts shall be deemed an
original of this Amendment.
6. Integration. This Amendment and any documents executed in connection
herewith or pursuant hereto contain the entire agreement between the parties with respect to the
subject matter hereof and supersede all prior agreements, understandings, offers and negotiations,
oral or written, with respect thereto and no extrinsic evidence whatsoever may be introduced in
any judicial or arbitration proceeding, if any, involving this Amendment; except that any
financing statements or other agreements or instruments filed by Lender with respect to Borrower
shall remain in full force and effect.
7. Governing Law; Venue. THIS AMENDMENT SHALL BE GOVERNED BY AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA. Borrower and Lender
each submit to the exclusive jurisdiction of the State and Federal courts in Santa Xxxxx County,
California.
[signature page follows]
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In Witness Whereof, the parties have duly authorized and caused this Amendment to be
executed as of the date first written above.
| BORROWER: ALEXZA PHARMACEUTICALS, INC. |
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| By: | /s/ August X. Xxxxxxx | |||
| Name: | AUGUST X. XXXXXXX | |||
| Title: | CFO | |||
| SYMPHONY ALLEGRO, INC. |
||||
| By: | /s/ August X. Xxxxxxx | |||
| Name: | AUGUST X. XXXXXXX | |||
| Title: | TREASURER | |||
| LENDER: HERCULES TECHNOLOGY GROWTH CAPITAL, INC. |
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| By: | /s/ X. Xxxxxxxx Martitsch | |||
| Name: | X. Xxxxxxxx Martitsch | |||
| Title: | Associate General Counsel | |||
