LOAN AND SECURITY AGREEMENT
dated as of June 25, 2026
among
ALX ONCOLOGY INC.,
as Borrower
ALX ONCOLOGY HOLDINGS INC. AND ALX ONCOLOGY LIMITED
collectively, as Guarantor
and
HSBC VENTURES USA INC.,
as Bank
Exhibit 10.2
LOAN AND SECURITY AGREEMENT
dated as of June 25, 2026
among
ALX ONCOLOGY INC.,
as Borrower
ALX ONCOLOGY HOLDINGS INC. AND ALX ONCOLOGY LIMITED
collectively, as Guarantor
and
HSBC VENTURES USA INC.,
as Bank
LOAN AND SECURITY AGREEMENT (this “Agreement”) dated as of June 25, 2026 (the “Effective Date”) by and among (a) ALX ONCOLOGY INC., a Delaware corporation (“Borrower”), (b) (i) ALX ONCOLOGY HOLDINGS INC., a Delaware corporation (“Parent Guarantor”) and (ii) ALX ONCOLOGY LIMITED, a private company limited by shares incorporated under the laws of Ireland with company registration number 58988 (“Irish Guarantor”) and (c) HSBC VENTURES USA INC. (“Bank”), and provides the terms on which Bank shall lend to Borrower and Borrower shall repay Bank. The parties agree as follows:
“Account” is any “account” as defined in the Code with such additions to such term as may hereafter be made, and includes, without limitation, all accounts receivable and other sums owing to any Loan Party.
“Account Debtor” is any “account debtor” as defined in the Code with such additions to such term as may hereafter be made.
“Acquisition” is any transaction, or any series of related transactions, consummated on or after the Effective Date, by which any Loan Party or a Subsidiary (a) acquires any going business or all or substantially all of the assets of any Person, whether through purchase of assets, merger or otherwise or (b) directly or indirectly acquires (in one transaction or as the most recent transaction in a series of related transactions) at least a majority (in number of votes) of the equity interests of a Person which has ordinary voting power for the election of directors or other similar management personnel of a Person (other than equity interests having such power only by reason of the happening of a contingency) or a majority of the outstanding equity interests of a Person.
“Affected Financial Institution” is (a) any EEA Financial Institution or (b) any UK Financial Institution.
“Affiliate” is, with respect to any Person, each other Person that owns or controls directly or indirectly the Person, any Person that controls or is controlled by or is under common control with the Person. For purposes of this Agreement, in all cases HSBC Bank USA, N.A. shall be deemed to be an Affiliate of Bank.
“Agreement” is defined in the preamble hereof.
“Anti-Money Laundering Laws” means the PATRIOT Act; the Anti-Money Laundering Act of 2020; the U.S. Money Laundering Control Act of 1986; the U.S. Bank Secrecy Act; and the regulations and rules promulgated under each of the foregoing and related US Anti-Money Laundering and Combating the Financing of Terrorism laws, as amended from time to time; and corresponding laws of (a) the European Union designed to combat money laundering and terrorist financing and (b) jurisdictions in which the Loan Parties operate or in which the proceeds of the Credit Extensions will be used or from which repayments of the Obligations will be derived.
“Applicable Law” means all applicable provisions of constitutions, laws, statutes, ordinances, rules, treaties, regulations, permits, licenses, approvals, interpretations and orders of courts or Governmental Authorities and all orders and decrees of all courts and arbitrators.
“ASU” is defined in Section 1.3.
“Audited Financial Statements” are, as of any date, the most recent audited financial statements submitted to Bank pursuant to Section 6.2(d).
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“Authorized Signer” is any individual listed in any Loan Party’s Borrowing Resolution who is authorized to execute the Loan Documents, including any Credit Extension request, on behalf of such Loan Party.
“Bank” is defined in the preamble hereof.
“Bank Entities” is defined in Section 12.10.
“Bank Expenses” are all (a) reasonable and documented out-of-pocket expenses incurred by Bank (including the reasonable fees, charges and disbursements of counsel for Bank), and all fees and time charges and disbursements for attorneys who may be employees of Bank, in connection with the preparation, negotiation, execution, delivery, and administration of this Agreement and the other Loan Documents, or any amendment, modification or waiver of the provisions hereof or thereof (whether or not the transactions contemplated hereby or thereby shall be consummated), (b) reasonable and documented audit fees and related costs and expenses, and (c) out-of-pocket expenses incurred by Bank (including the fees, charges and disbursements of any counsel for Bank) and all fees and time charges for attorneys who may be employees of Bank, in connection with the enforcement or protection of its rights (i) in connection with this Agreement and the other Loan Documents (including without limitation, in connection with the enforcement of any judgment and in connection with any appeals), or (ii) in connection with the Credit Extensions made, including all such out-of-pocket expenses incurred, whether before or after a Default or Event of Default has occurred under any of the Loan Documents, relating to a workout, restructuring or other negotiations with any Loan Party respect of such Credit Extensions.
“Bank Services” are any Letters of Credit, deposit accounts, Cash Management Services, and foreign exchange services (including any FX Contracts) previously, now, or hereafter provided to any Loan Party or any of its respective Subsidiaries by Bank and/or any Affiliate of Bank, as any such products or services may be identified in any of Bank’s and/or Bank’s Affiliates’ various agreements and/or arrangements related thereto (each, a “Bank Services Agreement”).
“Beneficial Ownership Certification” is a certification regarding beneficial ownership required by the Beneficial Ownership Regulation.
“Beneficial Ownership Regulation” is 31 C.F.R. § 1010.230.
“Board” is each Loan Party’s board of directors or equivalent governing body.
“Books” are all of the Loan Parties’ books and records including ledgers, federal and state tax returns, records regarding such Loan Party’s assets or liabilities, the Collateral, business operations or financial condition, and all computer programs or storage or any equipment containing such information.
“Borrower” is defined in the preamble hereof.
“Borrowing Resolutions” are, with respect to any Person, those resolutions adopted by such Person’s board of directors or equivalent governing body (and, if required under the terms of such Person’s Operating Documents, equityholders) and delivered by such Person to Bank approving the Loan Documents to which such Person is a party and the transactions contemplated thereby, together with a certificate executed by its secretary on behalf of such Person certifying (a) such Person has the authority to execute, deliver, and perform its obligations under each of the Loan Documents to which it is a party, (b) that set forth as a part of or attached as an exhibit to such certificate is a true, correct, and complete copy of the resolutions then in full force and effect authorizing and ratifying the execution, delivery, and performance by such Person of the Loan Documents to which it is a party, (c) the name(s) of the Person(s) authorized to execute the Loan Documents, including any Credit Extension request, on behalf of such Person, together with a sample of the true signature(s) of such Person(s), and (d) that Bank may conclusively rely on such
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certificate unless and until such Person shall have delivered to Bank a further certificate canceling or amending such prior certificate.
“Business Day” is any day that is not a Saturday, Sunday or a day on which Bank is closed, and if any determination of a “Business Day” shall relate to an FX Contract, the term “Business Day” shall mean a day on which dealings are carried on in the country of settlement of the Foreign Currency.
“Cash Equivalents” are (a) marketable direct obligations issued or unconditionally guaranteed by the United States or any agency or any State thereof having maturities of not more than one (1) year from the date of acquisition; (b) commercial paper maturing no more than one (1) year after its creation and rated at least A-2 by Standard & Poor’s Financial Services LLC, a subsidiary of S&P Global Inc., or at least P-2 by Moody’s Investors Service, Inc., and any of their respective successors; (c) any certificates of deposit (or time deposit represented by a certificate of deposit), overnight bank deposit or banker’s acceptance maturing no more than one (1) year after such time, or any overnight Federal funds transaction; and (d) money market accounts or mutual funds at least ninety-five percent (95.0%) of the assets of which constitute Cash Equivalents of the types described in clauses (a) through (c) of this definition.
“Cash Management Services” means any agreement, arrangement, or facility under which Bank or any Affiliate of Bank provides any of the following products or services to any of the Loan Parties: (a) cash management services for collections, treasury management services (including controlled disbursement, overdraft, automated clearing house fund transfer services, return items and interstate depository network services), any demand deposit, payroll, trust or operating account relationships, credit cards (including, without limitation, commercial credit cards, virtual cards, purchasing cards and business debit cards), non-card e-payables services, and other cash management services, including electronic funds transfer services, lockbox services, stop payment services and wire transfer services.
“Change in Control” means (a) at any time, any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act) shall become, or obtain rights (whether by means of warrants, options or otherwise) to become, the “beneficial owner” (as defined in Rules 13(d)-3 and 13(d)-5 under the Exchange Act), directly or indirectly, of forty-nine percent (49.0%) or more of the ordinary voting power for the election of directors of Parent Guarantor (determined on a fully diluted basis) other than by the sale of Parent Guarantor’s equity securities in a public offering; (b) during any period of twelve (12) consecutive months, a majority of the members of the Board of Parent Guarantor cease to be composed of individuals (i) who were members of that Board on the first (1st) day of such period, (ii) whose election or nomination to that Board was approved by individuals referred to in clause (i) above constituting at the time of such election or nomination at least a majority of that Board or (iii) whose election or nomination to the Board was approved by individuals referred to in clauses (i) and (ii) above constituting at the time of such election or nomination at least a majority of that Board; or (c) except as permitted by Section 7.3 of this Agreement, at any time, any Loan Party shall cease to own and control, of record and beneficially, directly or indirectly, one hundred percent (100.0%) of each class of outstanding stock, partnership, membership, or other ownership interest or other equity securities of each Subsidiary of such Loan Party (other than director’s qualifying shares or other similar shares as required by Applicable Law) free and clear of all Liens (except Permitted Liens).
“Change in Law” is the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that notwithstanding anything herein to the contrary, (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (ii) all requests, rules, guidelines or directives promulgated by Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory
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authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.
“Claims” is defined in Section 12.4.
“Code” is the Uniform Commercial Code, as the same may, from time to time, be enacted and in effect in the State of New York; provided, that, to the extent that the Code is used to define any term herein or in any Loan Document and such term is defined differently in different Articles or Divisions of the Code, the definition of such term contained in Article or Division 9 shall govern; provided, further, that in the event that, by reason of mandatory provisions of law, any or all of the attachment, perfection, or priority of, or remedies with respect to, Bank’s Lien on any Collateral is governed by the Uniform Commercial Code in effect in a jurisdiction other than the State of New York, the term “Code” shall mean the Uniform Commercial Code as enacted and in effect in such other jurisdiction solely for purposes of the provisions thereof relating to such attachment, perfection, priority, or remedies and for purposes of definitions relating to such provisions.
“Collateral” is any and all properties, rights and assets of the Loan Parties described on Exhibit A.
“Collateral Account” is any Deposit Account, Securities Account, or Commodity Account.
“Commodity Account” is any “commodity account” as defined in the Code with such additions to such term as may hereafter be made.
“Compliance Certificate” is that certain certificate in the form attached hereto as Exhibit B.
“Control Agreement” is any control agreement entered into among the depository institution at which a Loan Party maintains a Deposit Account or the securities intermediary or commodity intermediary at which a Loan Party maintains a Securities Account or a Commodity Account, such Loan Party, and Bank pursuant to which Bank obtains control (within the meaning of the Code) over such Deposit Account, Securities Account, or Commodity Account.
“Copyrights” are any and all copyright rights, copyright applications, copyright registrations and like protections in each work of authorship and derivative work thereof, whether published or unpublished and whether or not the same also constitutes a trade secret.
“Credit Card Collateral Accounts” is defined in clause is defined in clause (m) of the definition of Permitted Liens.
“Credit Extension” is any Term Loan Advance or any other extension of credit under the Loan Documents by Bank and/or an Affiliate of Bank for Borrower’s benefit.
“Default” is any event which with notice or passage of time or both, would constitute an Event of Default.
“Default Rate” is defined in Section 2.3(b).
“Deposit Account” is any “deposit account” as defined in the Code with such additions to such term as may hereafter be made.
“Designated Deposit Account” is the account denominated in Dollars, account number ending 5776, maintained by Borrower with HSBC Bank USA, N.A.
“Division” means, in reference to any Person which is an entity, the division of such Person into two (2) or more separate Persons, with the dividing Person either continuing or terminating its existence as part of such division, including, without limitation, as contemplated under Section 18-217 of the Delaware Limited Liability Company Act for limited liability companies formed under Delaware law, Section
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17-220 of the Delaware Revised Uniform Limited Partnership Act for limited partnerships formed under Delaware law, or any analogous action taken pursuant to any other Applicable Law with respect to any corporation, limited liability company, partnership or other entity.
“Dollars,” “dollars” or use of the sign “$” are only lawful money of the United States and not any other currency, regardless of whether that currency uses the “$” sign to denote its currency or may be readily converted into lawful money of the United States.
“Dollar Equivalent” is, at any time, (a) with respect to any amount denominated in Dollars, such amount, and (b) with respect to any amount denominated in a Foreign Currency, the equivalent amount therefor in Dollars as determined by Bank at such time on the basis of the then-prevailing rate of exchange in New York, New York, for sales of the Foreign Currency for transfer to the country issuing such Foreign Currency.
“Domestic Subsidiary” is a Subsidiary organized under the laws of the United States or any state or territory thereof or the District of Columbia other than (a) any Subsidiary all or substantially all of whose assets consist of equity securities of (or debt obligations owed or treated as owed by such) controlled foreign corporations (as defined in Section 957 of the IRC) and (b) any Subsidiary that is a direct or indirect Subsidiary of a Subsidiary that is a controlled foreign corporation (as defined in Section 957 of the IRC).
“Draw Period A” is the period of time commencing upon the Effective Date and continuing through the earlier to occur of (a) June 30, 2028 or (b) an Event of Default.
“Draw Period B” is the period of time commencing upon the occurrence of the Term B Milestone Event and continuing through the earlier to occur of (a) June 30, 2028 or (b) an Event of Default.
“Draw Period C” is the period of time commencing upon the occurrence of the Term C Milestone Event and continuing through the earlier to occur of (a) June 30, 2028 or (b) an Event of Default.
“EEA Financial Institution” is (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a Subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
“EEA Member Country” is any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“EEA Resolution Authority” is any public administrative authority or any Person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
“Effective Date” is defined in the preamble hereof.
“Equipment” is all “equipment” as defined in the Code with such additions to such term as may hereafter be made, and includes without limitation all machinery, fixtures, goods, vehicles (including motor vehicles and trailers), and any interest in any of the foregoing.
“ERISA” is the Employee Retirement Income Security Act of 1974, as amended.
“ERISA Affiliate” is any trade or business (whether or not incorporated) under common control with any Loan Party or Subsidiary thereof within the meaning of Section 414(b) or (c) of the Internal Revenue Code of 1986, as amended (and Sections 414(m) and (o) thereof for purposes of provisions relating to Section 412 thereof).
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“Event of Default” is defined in Section 8.
“Exchange Act” is the Securities Exchange Act of 1934, as amended.
“Excluded Accounts” is defined in Section 6.8(b).
“Excluded Taxes” means any of the following Taxes imposed on or with respect to Bank or required to be withheld or deducted from a payment to Bank: (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes and branch profits Taxes, in each case (i) imposed by the United States or as a result of Bank being organized under the laws of, or having its principal office or its applicable lending office located in, the jurisdiction imposing such tax (or any political subdivision thereof), or (ii) that are Other Connection Taxes, (b) U.S. federal withholding Taxes imposed on amounts payable to or for the account of Bank with respect to an applicable interest in a Credit Extension pursuant to a law in effect on the date on which (i) Bank acquires such interest in the Credit Extensions or (ii) Bank changes its lending office, except in each case to the extent that, pursuant to Section 12.11, amounts with respect to such Taxes were payable either to Bank’s assignor immediately before Bank became a party hereto or to Bank immediately before it changed its lending office, (c) Taxes attributable to Bank’s failure to comply with Section 12.11(c), and (d) any withholding Taxes imposed under FATCA.
“FATCA” means Sections 1471 through 1474 of the IRC, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not more onerous to comply with), any regulations or official interpretations thereof and any agreements entered into pursuant to Section 1471(b)(1) of the IRC, and any intergovernmental agreement, or provision of any treaty or convention entered into in connection with the implementation of such Sections of the IRC and any fiscal or regulatory legislation, rules or practices adopted pursuant to such intergovernmental agreement, or provision of any treaty or convention.
“FCPA” is defined in Section 5.13.
“Final Payment” is a payment (in addition to and not in substitution for the regular monthly payments of principal plus accrued interest) equal to the aggregate original principal amount of the Term Loan Advances extended by Bank to Borrower hereunder, multiplied by two percent (2.0%), which payment shall be fully earned as of the date hereof, but payment shall be deferred until the earliest to occur of (a) the Term Loan Maturity Date, (b) the payment in full of the Term Loan Advances, (c) as required by Section 2.2(d) or Section 2.2(e), or (d) the termination of this Agreement.
“Foreign Currency” is lawful money of a country other than the United States.
“Foreign Subsidiary” is any Subsidiary which is not a Domestic Subsidiary.
“Funding Date” is any date on which a Credit Extension is made to or for the account of Borrower which shall be a Business Day.
“FX Contract” is any foreign exchange contract by and between a Loan Party and Bank and/or any Affiliate of Bank under which such Loan Party commits to purchase from or sell to Bank and/or any Affiliate of Bank a specific amount of Foreign Currency on a specified date.
“GAAP” is generally accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other Person as may be approved by a significant segment of the accounting profession, which are applicable to the circumstances as of the date of determination.
“General Intangibles” is all “general intangibles” as defined in the Code in effect on the date hereof with such additions to such term as may hereafter be made, and includes without limitation, all
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Intellectual Property, all claims, income and other tax refunds, security and other deposits, payment intangibles, contract rights, options to purchase or sell real or personal property, rights in all litigation presently or hereafter pending (whether in contract, tort or otherwise), insurance policies (including without limitation key man, property damage, and business interruption insurance), payments of insurance and rights to payment of any kind.
“Governmental Approval” is any consent, authorization, approval, order, license, franchise, permit, certificate, accreditation, registration, filing or notice, of, issued by, from or to, or other act by or in respect of, any Governmental Authority, including, without limitation, Healthcare Permits.
“Governmental Authority” is any nation or government, any state or other political subdivision thereof, any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative functions of or pertaining to government, any securities exchange and any self-regulatory organization.
“Guarantee Agreement” is (a) that certain Guaranty by Parent Guarantor in favor of Bank dated as of the Effective Date, (b) that certain Guaranty by Irish Guarantor in favor of Bank dated as of the Effective Date, and (c) each agreement entered into by a Guarantor providing for the guaranty of the Obligations, in each case, in form and substance satisfactory to Bank.
“Guarantor” is, jointly and severally, individually and collectively, (a) Parent Guarantor, (b) Irish Guarantor and (c) each other Subsidiary and other Person who guarantees the Obligations pursuant to a Guarantee Agreement.
“Healthcare Laws” means all applicable laws relating to the operation or management of hospitalist practices, the provision of hospitalist services, proper billing and collection practices relating to the payment for healthcare services, insurance law (including law related to payment for “no-fault” claims) and workers compensation law as they relate to the provision of, and billing and payment for, healthcare services, patient healthcare, patient healthcare information, patient abuse, the quality and adequacy of rehabilitative care, rate setting, equipment, personnel, operating policies, fee splitting, including, without limitation, (a) all federal and state fraud and abuse laws, including, without limitation, the federal Anti-Kickback Statute (42 U.S.C. §1320a-7b(b)), the Stark Law (42 U.S.C. §1395nn), the civil False Claims Act (31 U.S.C. §3729 et seq.), the administrative False Claims Law (42 U.S.C. § 1320a-7b(a)), the Anti-Inducement Law (42 U.S.C. § 1320a-7a(a)(5)), the exclusion laws (42 U.S.C. § 1320a-7); (b) the Health Insurance Portability and Accountability Act of 1996, as amended by the Health Information Technology for Economic and Clinical Health Act of 2009; (c) the Medicare Regulations and Medicaid (Title XIX of the Social Security Act); (d) quality, safety and accreditation standards and requirements of all applicable state laws or regulatory bodies; (e) all laws, policies, procedures, requirements and regulations pursuant to which Healthcare Permits are issued; (f) any laws, regulations or administrative guidance with respect to fee splitting by healthcare professionals and the corporate practice of medicine in any jurisdiction in which any Borrower or any Guarantor operates; and (g) any and all comparable state or local laws and other applicable health care laws, regulations, manual provisions, policies and administrative guidance, each of (a) through (g) as may be amended from time to time and the regulations promulgated pursuant to each such law.
“Healthcare Permit” means, with respect to any Person, a permit issued or required under Healthcare Laws applicable to the business of Borrower or any Guarantor, or necessary in the testing, possession, manufacture, ownership, warehousing, marketing, promoting, sale, labeling, furnishing, distribution or delivery of goods or services under Healthcare Laws applicable to the business of Borrower or any Guarantor.
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“HIPAA” means, collectively, the Health Insurance Portability and Accountability Act of 1996, as amended by the Health Information Technology for Economic Clinical Health (HITECH) Act and the implementing regulations thereto.
“Indebtedness” is, as to any Person at a particular time, without duplication, all of the following, whether or not included as indebtedness or liabilities in accordance with GAAP:
(a) all obligations of such Person for borrowed money and all obligations of such Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments;
(b) all direct or contingent obligations of such Person arising under letters of credit (including standby and commercial), bankers’ acceptances, guaranties, surety bonds and similar instruments;
(c) all obligations of such Person in respect of the deferred purchase price of property or services (other than trade accounts payable in the ordinary course of business);
(d) all obligations of such Person under conditional sale or other title retention agreements relating to property acquired by such Person, including, but not limited to, indebtedness secured by (or for which the holder of such indebtedness has an existing right, contingent or otherwise, to be secured by) a Lien on property owned, acquired or being purchased by such Person (including indebtedness arising under conditional sales or other title retention agreements), whether or not such indebtedness shall have been assumed by such Person or is limited in recourse;
(e) all capital lease obligations of such Person; and
(f) all guarantees of such Person in respect of any of the foregoing.
“Indemnified Person” is defined in Section 12.4.
“Indemnified Tax” is defined in Section 12.11(a).
“Initial Term A Loan Advance” is defined in Section 2.2(a).
“Insolvency Proceeding” is any proceeding by or against any Person under the United States Bankruptcy Code, or any other bankruptcy or insolvency law, including assignments for the benefit of creditors, compositions, extensions generally with its creditors, examinership, rescue proceedings, or proceedings seeking reorganization, arrangement, or other relief.
“Intellectual Property” is, with respect to any Person, all of such Person’s right, title, and interest in and to the following:
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“Interest Only Extension Event” occurs if and when (if ever) Borrower has provided Bank with evidence, satisfactory to Bank in its sole and absolute discretion, on or prior to June 30, 2028, that (a) the Term B Milestone Event has occurred and (b) Parent Guarantor has received, after the Effective Date, but on or prior to June 30, 2028, unrestricted and unencumbered net cash proceeds from the issuance and sale by Parent Guarantor of its equity securities to investors reasonably satisfactory to Bank (it being agreed that investors in a public offering shall be deemed reasonably satisfactory to Bank), in an aggregate amount of at least One Hundred Fifty Million Dollars ($150,000,000.00).
“Inventory” is all “inventory” as defined in the Code in effect on the date hereof with such additions to such term as may hereafter be made, and includes without limitation all merchandise, raw materials, parts, supplies, packing and shipping materials, work in process and finished products, including without limitation such inventory as is temporarily out of any Loan Party’s custody or possession or in transit and including any returned goods and any documents of title representing any of the above.
“Investment” is any beneficial ownership interest in any Person (including stock, partnership interest or other securities), and any loan, advance or capital contribution to any Person.
“IRC” means the U.S. Internal Revenue Code of 1986, as amended.
“Irish Account Transition Period” is the period of time commencing upon the Effective Date and continuing through the earlier to occur of (a) June 25, 2028 or (b) an Event of Default.
“Irish Companies Act” means the Companies Act 2014 of Ireland, as amended.
“Irish Debenture” means the Irish law governed debenture dated on or about the date of this Agreement between (1) the Irish Guarantor and (2) the Bank.
“Irish Guarantor” is defined in the preamble hereof.
“Irish Guarantor Account” is defined in Section 6.8(b).
“Irish Loan Parties” means together the Irish Guarantor and any other Loan Party incorporated in Ireland and “Irish Loan Party” means any one of them as the context requires.
“Irish Security Documents” means together the Irish Debenture and the Irish Share Charge and any other documents designated as such by the Borrower and the Bank.
“Irish Share Charge” means the Irish law governed charge over shares dated on or about the date of this Agreement between (1) the Parent Guarantor and (2) the Bank in respect of the entire issued share capital of the Irish Guarantor.
“Key Person” is Parent Guarantor’s chief executive officer, who is Jason Lettmann as of the Effective Date.
“LC Collateral Accounts” is defined in clause is defined in clause (n) of the definition of Permitted Liens.
“Letter of Credit” is a standby or commercial letter of credit issued by Bank and/or any Affiliate of Bank upon request of Borrower based upon an application, guarantee, indemnity, or similar agreement on the part of Bank and/or any Affiliate of Bank.
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“Lien” is a claim, mortgage, deed of trust, levy, charge, pledge, security interest or other encumbrance of any kind, whether voluntarily incurred or arising by operation of law or otherwise against any property.
“Loan Documents” are, collectively, this Agreement and any schedules, exhibits, certificates, notices, and any other documents related to this Agreement, including each Guarantee Agreement, the Irish Security Documents, any subordination agreement, any Control Agreement, any Bank Services Agreement, any pledge agreement, notes or guaranties executed by any Loan Party or any Subsidiary of a Loan Party and any other present or future agreement by any Loan Party or any Subsidiary of a Loan Party with or for the benefit of Bank and/or any Affiliate of Bank in connection with this Agreement and/or Bank Services, all as amended, restated, supplemented, or otherwise modified from time to time.
“Loan Parties” are Borrower and the Guarantors.
“Material Adverse Change” is (a) a material impairment in the perfection or priority of Bank’s Lien in the Collateral or in the value of such Collateral; (b) a material adverse change in the business, assets, operations, properties, or financial condition of the Loan Parties and their Subsidiaries, taken as a whole; (c) a material adverse change in the ability of the Loan Parties, collectively to pay or perform their Obligations; or (d) a material adverse change in the validity or enforceability of any of the Loan Documents and the rights and remedies of Bank thereunder.
“Obligations” are the Loan Parties’ obligations to pay when due any debts, principal, interest, fees, the Final Payment, the Prepayment Premium, Bank Expenses, and other amounts any Loan Party owes Bank or any Affiliate of Bank now or later, whether under this Agreement, the other Loan Documents, any Bank Services Agreement or otherwise, including, without limitation other Bank Services, if any, and including interest accruing after Insolvency Proceedings begin and debts, liabilities, or obligations of any Loan Party assigned to Bank, and to perform any Loan Party’s duties under the Loan Documents.
“Operating Documents” are, for any Person, such Person’s formation documents, and, (a) if such Person is a corporation, its bylaws in current form, (b) if such Person is a limited liability company, its limited liability company agreement (or similar agreement), (c) if such Person is a partnership, its partnership agreement (or similar agreement), and (d) if such Person is an Irish Loan Party, its certificate of incorporation and constitutional documents, each of the foregoing with all current amendments or modifications thereto.
“Other Connection Taxes” means, with respect to Bank, Taxes imposed as a result of a present or former connection between Bank and the jurisdiction imposing such tax (other than connections arising from Bank having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, or engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan Document).
“Other Taxes” means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment.
“Oxford” is defined in the definition of Oxford-SVB Loan Agreement.
“Oxford-SVB Obligations” means the Loan Parties’ existing obligations under the Oxford-SVB Loan Agreement.
“Oxford-SVB Loan Agreement” means that certain Loan and Security Agreement dated as of October 27, 2022 by and among the Loan Parties, Oxford Finance LLC (“Oxford”), as collateral agent, the
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lenders listed on Schedule 1.1 thereto or otherwise a party thereto from time to time including Oxford in its capacity as a lender, Oxford Finance Credit Fund II LP and Silicon Valley Bank, a division of First-Citizens Bank & Trust Company, as amended.
“Parent Guarantor” is defined in the preamble hereof.
“Participant Register” is defined in Section 12.3.
“Patents” are all patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part of the same.
“Patriot Act” is the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)).
“Payment Date” is the first (1st) calendar day of each month.
“Perfection Certificate” is defined in Section 5.1.
“Permitted Acquisition” means a transaction whereby a Loan Party acquires all or substantially all of the equity interests or property of another Person, which satisfies each of the following conditions:
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“Permitted Indebtedness” is:
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“Permitted Investments” are:
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“Permitted Letters of Credit” is defined in clause is defined in clause (n) of the definition of Permitted Indebtedness.
“Permitted Liens” are:
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“Permitted Secured Credit Cards” is defined in clause is defined in clause (m) of the definition of Permitted Indebtedness.
“Permitted Unsecured Credit Cards” is defined in clause is defined in clause (l) of the definition of Permitted Indebtedness.
“Person” is any individual, sole proprietorship, partnership, limited liability company, joint venture, company, trust, unincorporated organization, association, corporation, institution, public benefit corporation, firm, joint stock company, estate, entity or government agency.
“Prepayment Premium” shall be an additional fee, payable to Bank, with respect to the Term Loan Advances, in an amount equal to:
Notwithstanding the foregoing, provided no Event of Default has occurred and is continuing, the Prepayment Premium shall be waived by Bank, if Bank or an Affiliate of Bank closes on the refinance and redocumentation of the Term Loan Advances (in its sole and absolute discretion) prior to the Term Loan Maturity Date.
“Prime Rate” is the rate of interest per annum equal to the “ prime rate” provided by such financial market data information provider as may be selected by the Bank from time to time (the “Prime Rate Provider”); provided that if such rate of interest cannot be reasonably sourced from a third-party financial market data provider, then the “ Prime Rate” shall mean the rate of interest per annum announced by Bank as its prime rate in effect at its principal office. As of the Effective Date, the Prime Rate Provider is the London Stock Exchange Group. The Prime Rate Provider is subject to change at any time without notice; provided, that the Bank shall confirm the current Prime Rate Provider upon the Borrower’s request. The Prime Rate is a reference rate and does not necessarily represent the lowest or best rate actually charged to any customer. Any change in the Prime Rate shall take effect at the opening of business on the effective date of such change. Notwithstanding any terms in this Agreement to the contrary, if at any time such rate of interest is less than zero percent (0.0%) per annum, such rate shall be deemed to be zero percent (0.0%) per annum for purposes of this Agreement.
“Prime Rate Provider” s defined in the definition of Prime Rate.
“Protected Person” is defined in Section 12.13.
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“Register” is defined in Section 12.3.
“Registered Organization” is any “registered organization” as defined in the Code with such additions to such term as may hereafter be made.
“Repayment Schedule” means, the period of time equal to twenty-four (24) consecutive calendar months, which period of time shall be reduced to twelve (12) consecutive calendar months upon the occurrence of the Term B Milestone Event.
“Requirement of Law” is as to any Person, the Operating Documents of such Person, and any law (statutory or common), treaty, rule or regulation or determination of an arbitrator or a court or other Governmental Authority, in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.
“Responsible Officer” is any of the Chief Executive Officer, Chief Financial Officer, Treasurer, Vice President of Finance and, other than for purposes of Section 6.2, Secretary of the applicable Loan Party.
“Restricted License” is any material license or other similar agreement with respect to which Borrower or any of its Subsidiaries is the licensee that validly prohibits or otherwise restricts Borrower or such Subsidiary from granting a security interest in Borrower’s or such Subsidiary’s interest in such license or agreement or any property subject to such license or similar agreement. Off-the-shelf software, open source code, application programming interfaces (APIs) and/or other trademarks, copyrights or patents of others that are commercially available to the public under shrinkwrap licenses, clickwrap licenses, online terms of service or other terms of use or similar agreements shall not constitute a Restricted License.
“Sanctions” is defined in Section 5.12.
“SEC” is the Securities and Exchange Commission, any successor thereto, and any analogous Governmental Authority.
“Securities Account” is any “securities account” as defined in the Code with such additions to such term as may hereafter be made.
“Setoff” is defined in Section 12.15.
“Subordinated Debt” is unsecured indebtedness incurred by any Loan Party subordinated to all of the Loan Parties’ now or hereafter indebtedness to Bank (pursuant to a subordination, intercreditor, or other similar agreement in form and substance satisfactory to Bank entered into between Bank and the other creditor), on terms and in amounts reasonably acceptable to Bank.
“Subsidiary” (a) as to an Irish Loan Party, has the meaning given to that term under Section 7 of the Irish Companies Act, and (b) is, as to any Person, a corporation, partnership, limited liability company or other entity of which shares of stock or other ownership interests having ordinary voting power (other than stock or such other ownership interests having such power only by reason of the happening of a contingency) to elect a majority of the board of directors or other managers of such corporation, partnership or other entity are at the time owned, or the management of which is otherwise controlled, directly or indirectly through one (1) or more intermediaries, or both, by such Person. Unless the context otherwise requires, each reference to a Subsidiary herein shall be a reference to a Subsidiary of Parent Guarantor.
“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.
“Term A Loan Advance” and “Term A Loan Advances” are each defined in Section 2.2(a).
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“Term B Loan Advance” and “Term B Loan Advances” are each defined in Section 2.2(a).
“Term B Milestone Event” occurs if and when (if ever) Borrower has provided Bank with evidence, satisfactory to Bank in its sole and absolute discretion, on or prior to June 30, 2028 that Borrower has achieved, after the Effective Date, but on or prior to December 31, 2027, both (a) positive data in Borrower’s phase 2 ASPEN-09 study of Evorpacept that is sufficient to proceed to a phase 3 study and (b) positive safety data in Borrower’s phase 1 study of ALX2004.
“Term C Loan Advance” and “Term C Loan Advances” are each defined in Section 2.2(a).
“Term C Milestone Event” occurs if and when (if ever), on or prior to June 30, 2028, (a) Borrower has requested and Bank has made the Term A Loan Advances and the Term B Loan Advance, (b) Borrower has requested in writing for Bank to make the Term C Loan Advance and (c) Bank confirms in writing that: (i) Bank has received all necessary internal and credit approvals to make the Term C Loan Advance, (ii) no Event of Default exists at the time the Term C Loan Advance is requested or would exist as a result of the Term C Loan Advance and (iii) Bank has provided written approval in its sole discretion that the Term C Loan Advance shall be made. For the avoidance of doubt, upon satisfaction of clauses (a)-(c), the determination of whether to make the Term C Loan Advance available to Borrower shall be in Bank’s sole discretion.
“Term Loan Advance” and “Term Loan Advances” are each defined in Section 2.2(a).
“Term Loan Amortization Date” is July 1, 2028, which shall be extended to July 1, 2029 upon the occurrence of the Interest Only Milestone Event.
“Term Loan Maturity Date” is June 1, 2030.
“Trademarks” are any trademark and servicemark rights, whether registered or not, applications to register and registrations of the same and like protections, and the entire goodwill of the business of a Loan Party connected with and symbolized by such trademarks.
“Transaction Request Form” is that certain form attached hereto as Exhibit C.
“Transfer” is defined in Section 7.1.
“UK Bribery Act” is defined in Section 5.13.
“UK Financial Institution” is any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended from time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any persons falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.
“Wells Fargo Account” is defined in Section 6.8(b).
“Wells Fargo Transition Period” is the period of time commencing upon the Effective Date and continuing through the earlier to occur of (a) August 24, 2026 or (b) an Event of Default.
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Unless otherwise provided in this Agreement or in a separate writing by Bank, Borrower shall not be entitled to any credit, rebate, or repayment of any fees earned by Bank pursuant to this Agreement notwithstanding any termination of this Agreement or the suspension or termination of Bank’s obligation to make loans and advances hereunder. Bank may, at its option, deduct amounts owing by Borrower under the clauses of this Section 2.4 pursuant to the terms of Section 2.5(c). Bank shall provide Borrower written notice of deductions made from the Designated Deposit Account pursuant to the terms of the clauses of this Section 2.4.
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Each of the Borrower (on behalf of itself and each other Loan Party), the Parent Guarantor and the Irish Guarantor represents and warrants as follows:
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Each of the Borrower, the Parent Guarantor and the Irish Guarantor shall, and shall cause each other Loan Party and all of its Subsidiaries to, do all of the following:
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None of the Borrower, the Parent Guarantor nor the Irish Guarantor shall, nor shall they permit any other Loan Party nor any of their Subsidiaries to, do any of the following without Bank’s prior written consent:
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Any one of the following shall constitute an event of default (an “Event of Default”) under this Agreement:
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All notices, consents, requests, approvals, demands, or other communication by any party to this Agreement or any other Loan Document must be in writing and shall be deemed to have been validly served, given, or delivered: (a) upon the earlier of actual receipt and three (3) Business Days after deposit in the U.S. mail, first class, registered or certified mail return receipt requested, with proper postage prepaid; (b) upon transmission, when sent by electronic mail; (c) one (1) Business Day after deposit with a reputable overnight courier with all charges prepaid; or (d) when delivered, if hand-delivered by messenger, all of which shall be addressed to the party to be notified and sent to the address or email address indicated below. Bank or any Loan Party may change its mailing or electronic mail address by giving the other party written notice thereof in accordance with the terms of this Section 10.
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If to any Loan Party: |
ALX Oncology Inc. 323 Allerton Avenue South San Francisco, CA 94080 Attn: Harish Shantharam; Shelly Wong Email: [***]; [***] |
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With a copy to: |
Wilson Sonsini Goodrich & Rosati, P.C. 650 Page Mill Road Palo Alto, CA 94304 Attn: Kathleen Rothman Email: [***] |
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If to Bank: |
HSBC Ventures USA Inc. |
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With a copy to: |
Morrison & Foerster LLP 200 Clarendon Street, Floor 21 Boston, MA 02116 Attn: David A. Ephraim, Esquire Email: [***] |
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This Agreement and the other Loan Documents and any claim, controversy, dispute or cause of action (whether in contract, tort or otherwise) arising out of or relating thereto (except, as to any Loan Document, as expressly set forth therein) and the transactions contemplated by such documents shall be governed by, and construed in accordance with, the law of the State of New York, without regard to conflicts of law principles except Title 14 of Article 5 of the New York General Obligations law. Each of the parties hereto hereby irrevocably and unconditionally submits to the exclusive jurisdiction of the State and Federal courts of the State of New York in connection with any action, suit or other proceeding arising out of or relating to this Agreement or any action taken or omitted hereunder and waives any claim of forum non conveniens and any objections as to laying of venue. Nothing in this Agreement shall affect any right Bank may otherwise have to bring any action or proceeding relating to this Agreement or the other Loan Documents against any of the Loan Parties or its properties in the courts of any jurisdiction. Each Loan Party expressly, irrevocably and unconditionally submits and consents in advance to such jurisdiction in any action or suit commenced in any such court, and each Loan Party hereby irrevocably and unconditionally waives, to the fullest extent permitted by Applicable Law, any objection that it may have based upon lack of personal jurisdiction, improper venue, or forum non conveniens and hereby irrevocably and unconditionally consents to the granting of such legal or equitable relief as is deemed appropriate by such court. Borrower hereby waives personal service of the summons, complaints, and other process issued in such action or suit and agrees that service of such summons, complaints, and other process may be made by registered or certified mail addressed to Borrower at the address set forth in, or subsequently provided by Borrower in accordance with, Section 10 of this Agreement and that service so made shall be deemed completed upon the earlier to occur of Borrower’s actual receipt thereof or three (3) days after deposit in the U.S. mails, proper postage prepaid.
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TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EACH LOAN PARTY AND BANK EACH WAIVE THEIR RIGHT TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR BASED UPON THIS AGREEMENT, THE LOAN DOCUMENTS OR ANY CONTEMPLATED TRANSACTION, INCLUDING CONTRACT, TORT, BREACH OF DUTY AND ALL OTHER CLAIMS. THIS WAIVER IS A MATERIAL INDUCEMENT FOR BOTH PARTIES TO ENTER INTO THIS AGREEMENT. EACH PARTY HAS REVIEWED THIS WAIVER WITH ITS COUNSEL.
Except as otherwise provided in any Loan Document, each Loan Party waives to the extent permitted by Applicable Law all rights and defenses (i) arising out of an election of remedies by Bank in accordance with the Loan Documents, even though that election of remedies, such as a nonjudicial foreclosure with respect to security for a guaranteed obligation, has destroyed such Loan Party’s rights of subrogation and reimbursement against any applicable Loan Party by the operation of Section 580 or 726 of the California Code of Civil Procedure or otherwise, and (ii) relating to any suretyship defenses available to it under the Code or any other Applicable Law, including, without limitation, the benefit of California Civil Code Section 2815 permitting revocation as to future transactions and the benefit of California Civil Code Sections 1432, 2787 through 2855, 2899 and 3433.
This Section 11 shall survive the termination of this Agreement.
provided that (in the case of both paragraphs (a) and/or (b) above), for the avoidance of doubt, to the extent that any such guarantees, obligations, liabilities and undertakings have been approved by the Summary Approval Procedure (as defined in the Irish Companies Act) they shall not constitute unlawful finance assistance under the said Section 82 or a breach of the said Section 239 (as applicable).
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This Section 12.4 shall survive until all statutes of limitation with respect to the Claims, losses, and expenses for which indemnity is given shall have run.
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[Signature page follows.]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed under seal as of the Effective Date.
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BORROWER: |
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ALX ONCOLOGY INC. |
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By /s/ Jason Lettmann |
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Name: Jason Lettmann |
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Title: Chief Executive Officer |
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GUARANTOR: |
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ALX ONCOLOGY HOLDINGS INC. |
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By /s/ Jason Lettmann |
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Name: Jason Lettmann |
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Title: Chief Executive Officer |
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ALX ONCOLOGY LIMITED |
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By /s/ Jason Lettmann |
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Name: Jason Lettmann |
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Title: Chief Executive Officer |
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BANK: |
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HSBC VENTURES USA INC. |
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By /s/ Gracie Georgi |
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Name: Gracie Georgi |
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Title: Vice President |
COLLATERAL DESCRIPTION
The Collateral consists of all of each Loan Party’s right, title and interest in and to the following personal property:
(a) (i) all goods, Accounts (including health-care receivables), Equipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, General Intangibles (except as provided below), commercial tort claims, documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, certificates of deposit, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), securities, securities accounts, securities entitlements and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and (ii) all 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 and insurance proceeds of any or all of the foregoing.
(b) Notwithstanding the foregoing, the Collateral does not include (i) rights held under a license or other agreement that are not assignable by their terms without the consent of the licensor thereof or counterparty thereto (but only to the extent such restriction on assignment is enforceable under Applicable Law); (ii) any interest of a Loan Party as a lessee or sublessee under a real property lease; (iii) consents, authorizations, approvals, orders, licenses, franchises, permits, certificates, accreditations, registrations, filings or notice (collectively, “Approvals”) issued by or from any governmental or regulatory authority if granting a security interest or Lien thereon is prohibited or would expose a Loan Party to the risk of termination, revocation or any similar result with respect to such Approval; provided, however, that upon termination of such prohibition, such interest shall immediately become Collateral without any action by the Loan Parties or Bank; (iv) any interest of a Loan Party as a lessee under an Equipment lease if such Loan Party is prohibited by the terms of such lease from granting a security interest in such lease or the Equipment subject thereto or under which such an assignment or Lien would cause a default to occur under such lease; provided, however, that upon termination of such prohibition, such interest shall immediately become Collateral without any action by the Loan Parties or Bank; (v) any LC Collateral Account, or (vi) any Intellectual Property; provided, however, the Collateral shall include all Accounts and all proceeds of Intellectual Property. If a judicial authority (including a U.S. Bankruptcy Court) would hold that a security interest in the underlying Intellectual Property is necessary to have a security interest in such Accounts and such property that are proceeds of Intellectual Property, then the Collateral shall automatically, and effective as of the Effective Date, include the Intellectual Property to the extent necessary to permit perfection of Bank’s security interest in such Accounts and such other property of each Loan Party that are proceeds of the Intellectual Property.