CONSENT AND FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT
Exhibit 10.1.1
Certain exhibits and schedules have been omitted in accordance with Regulation S-K Item 601(a)(5). The registrant agrees to furnish supplementally a copy of any omitted exhibit or schedule to the SEC upon its request, however the registrant may request confidential treatment of omitted items.
CONSENT AND FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT
THIS CONSENT AND FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT (this “Consent”) is entered into as of December 22, 2022, by and among OXFORD FINANCE LLC, a Delaware limited liability company with an office located at 000 Xxxxx Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxx, XX 00000 (“Oxford”), as collateral agent (in such capacity, “Collateral Agent”), the Lenders party thereto including Oxford in its capacity as a Lender, OXFORD FINANCE CREDIT FUND II LP, by its manager Oxford Finance Advisors, LLC with an office located at 000 Xxxxx Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxx, XX 00000, and SILICON VALLEY BANK, a California corporation with an office located at 0000 Xxxxxx Xxxxx, Xxxxx Xxxxx, XX 00000 (“Bank” or “SVB”) (each a “Lender” and collectively, the “Lenders”), ALX ONCOLOGY INC., a Delaware corporation with offices located at 000 Xxxxxxxx Xxxxxx, Xxxxx Xxx Xxxxxxxxx, XX 00000, ALEXO THERAPEUTICS INTERNATIONAL, an exempted company incorporated with limited liability under the laws of the Cayman Islands with offices located at Xxxxxxx Trust Company (Cayman) Limited, Six, 2nd Floor, Cricket Square, PO Box 2681, Grand Cayman, KY1-1111, Cayman Islands (“Alexo Therapeutics”), and SIRPANT THERAPEUTICS, an exempted company incorporated with limited liability under the laws of the Cayman Islands with offices located at Xxxxxxx Trust Company (Cayman) Limited, Six, 2nd Floor, Cricket Square, PO Box 2681, Grand Cayman, KY1-1111, Cayman Islands (“Sirpant”) (individually and collectively, jointly and severally, “Borrower”), and ALX ONCOLOGY HOLDINGS INC., a Delaware corporation with offices located at 000 Xxxxxxxx Xxxxxx, Xxxxx Xxx Xxxxxxxxx, XX 00000 (together with each other Person party hereto as a Guarantor, individually and collectively, jointly and severally, “Guarantor”).
AGREEMENT
NOW, THEREFORE, in consideration of the promises, covenants and agreements contained herein, and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, Borrower, the Required Lenders and Collateral Agent hereby agree as follows:
3.1 Removal of Borrower. Upon the consummation of the Restructuring, Alexo Therapeutics and Sirpant (each a “Removed Borrower” and collectively, the “Removed Borrowers”) shall each be removed as a Borrower under the Loan Documents and (ii) all references in the Loan Documents to “Borrower” thereafter shall no longer include the Removed Borrowers and shall mean and refer only to ALX ONCOLOGY INC., a Delaware corporation without any further action by any party hereto.
4.1 The consent and amendments set forth in Section 2 and 3 above are effective for the purposes set forth herein and shall be limited precisely as written and shall not be deemed to (a) be a consent to any amendment, waiver or modification of any other term or condition of any Loan Document, or (b) otherwise prejudice any right, remedy or obligation which Lenders or Borrower may now have or may have in the future under or in connection with any Loan Document.
4.2 This Consent shall be construed in connection with and as part of the Loan Documents and all terms, conditions, representations, warranties, covenants and agreements set forth in the Loan Documents are hereby ratified and confirmed and shall remain in full force and effect.
5.1 Immediately after giving effect to this Consent (a) 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 in all material respects as of such date) and (b) no Event of Default has occurred and is continuing;
5.2 Borrower has the corporate power and authority to execute and deliver this Consent and to perform its obligations under the Loan Agreement;
5.3 The organizational documents of Xxxxxxxx delivered to Collateral Agent on the Effective Date, and updated pursuant to subsequent deliveries by or on behalf of the Borrower to the Collateral Agent, remain true, accurate and complete and have not been amended, supplemented or restated and are and continue to be in full force and effect;
5.4 The execution and delivery by Borrower of this Consent and the performance by Borrower of its obligations under the Loan Agreement, do not contravene (i) any material law or regulation binding on or affecting Borrower, (ii) any material contractual restriction with a Person binding on Borrower, (iii) any order, judgment or decree of any court or other governmental or public body or authority, or subdivision thereof, binding on Borrower, or (iv) the organizational documents of Borrower;
5.5 The execution and delivery by Borrower of this Consent and the performance by Borrower of its obligations under the Loan Agreement, do not require any order, consent, approval, license, authorization or validation of, or filing, recording or registration with, or exemption by any governmental or public body or authority, or subdivision thereof, binding on Borrower, except as already has been obtained or made;
5.6 This Consent has been duly executed and delivered by Xxxxxxxx and is the binding obligation of Borrower, enforceable against Borrower 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.
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IN WITNESS WHEREOF, the parties hereto have caused this Consent and First Amendment to Loan and Security Agreement to be executed as of the date first set forth above.
BORROWER: |
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ALX ONCOLOGY INC. |
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By |
/s/ Xxxxx Xxxx |
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Name: |
Xxxxx Xxxx |
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Title: |
President and Chief Executive Officer |
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EXECUTED as a DEED by |
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ALEXO THERAPEUTICS INTERNATIONAL |
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By |
/s/ Xxxxx Xxxx |
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Name: |
Xxxxx Xxxx |
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Title: |
Director |
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EXECUTED as a DEED by |
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SIRPANT THERAPEUTICS |
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By |
/s/ Xxxxx Xxxx |
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Name: |
Xxxxx Xxxx |
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Title: |
Director |
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GUARANTOR: |
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By |
/s/ Xxxxx Xxxx |
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Name: |
Xxxxx Xxxx |
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Title: |
President and Chief Executive Officer |
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COLLATERAL AGENT AND LENDER: |
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OXFORD FINANCE LLC |
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By |
/s/ Xxxxxxx X. Xxxxxxxxx |
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Name: |
Xxxxxxx X. Xxxxxxxxx |
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Title: |
Senior Vice President |
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[Signature Page to Consent and First Amendment to Loan and Security Agreement]
LENDER: |
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OXFORD FINANCE CREDIT FUND II LP |
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By: |
Oxford Finance Advisors, LLC, its manager |
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By |
/s/ Xxxxxxx X. Xxxxxxxxx |
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Name: |
Xxxxxxx X. Xxxxxxxxx |
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Its: |
Senior Vice President |
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LENDER: |
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OXFORD FINANCE FUNDING III, LLC |
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By |
/s/ Xxxxxxx X. Xxxxxxxxx |
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Name: |
Xxxxxxx X. Xxxxxxxxx |
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Title: |
Secretary |
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LENDER: |
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SILICON VALLEY BANK |
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By |
/s/ Xxxxx Xxxxxxxxxx |
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Name: |
Xxxxx Xxxxxxxxxx |
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Title: |
Director |
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[Signature Page to Consent and First Amendment to Loan and Security Agreement]