Exhibit 10.26
Certain information has been excluded from this agreement (indicated by “[***]”) because such information (i) is not material and (ii) is the type that the registrant treats as private or confidential.
SECOND AMENDMENT TO LOAN AND SECURITY AGREEMENT
THIS SECOND AMENDMENT to Loan and Security Agreement (this “Amendment”) is entered into as of November 3, 2023 (the “Second Amendment Date”), by and among OXFORD FINANCE LLC, a Delaware limited liability company with an office located at 115 South Union Street, Suite 300, Alexandria, Virginia 22314 (in its individual capacity, “Oxford”; and in its capacity as Collateral Agent, “Collateral Agent”), the Lenders listed on Schedule 1.1 thereof from time to time including Oxford in its capacity as a Lender and OXFORD FINANCE FUNDING 2019-1, LLC, a Delaware limited liability company (each a “Lender” and collectively, the “Lenders”), TEMPESTTX, INC., a Delaware corporation with offices located at 2000 Sierra Point Parkway, Suite 400, Brisbane, CA 94005 (f/k/a TEMPEST THERAPEUTICS, INC.), TEMPEST THERAPEUTICS, INC., a Delaware corporation
(f/k/a MILLENDO THERAPEUTICS, INC., a Delaware corporation) with offices located at 2000 Sierra Point Parkway, Suite 400, Brisbane, CA 94005 and MILLENDO THERAPEUTICS US, INC., a Delaware corporation with offices located at 2000 Sierra Point Parkway, Suite 400, Brisbane, CA 94005 (individually and collectively, jointly and severally, “Borrower”).
WHEREAS, Collateral Agent, Borrower and the Lenders party thereto from time to time have entered into that certain Loan and Security Agreement, dated as of January 15, 2021 (as amended, supplemented or otherwise modified from time to time, the “Loan Agreement”) pursuant to which the Lenders have provided to Borrower certain loans in accordance with the terms and conditions thereof; and
WHEREAS, Borrower, Lenders and Collateral Agent desire to amend certain provisions of the Loan Agreement as provided herein and subject to the terms and conditions set forth herein;
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, Lenders and Collateral Agent hereby agree as follows:
“Designated Deposit Account” is Borrower’s deposit account, account number [***], maintained with JP Morgan.
“Permitted Indebtedness” is:
“Permitted Liens” are:
(d) of Section 5.1 of the Loan Agreement, and each Perfection Certificate previously delivered to Bank are each hereby amended as appropriate to reflect the address of each of TEMPESTTX, INC., TEMPEST THERAPEUTICS, INC., and MILLENDO THERAPEUTICS US, INC. as: 2000 Sierra Point Parkway, Suite 400, Brisbane, CA 94005.
force and effect. For the avoidance of doubt, this Amendment shall be considered part of the Loan Documents.
with any act, omission or state of facts taken or existing on or prior to the date hereof, may have after the date hereof against the Releasees, for, upon or by reason of any matter, cause or thing whatsoever relating to or arising out of the Loan Agreement or the other Loan Documents on or prior to the date hereof and through the date hereof. Without limiting the generality of the foregoing, the Borrower waives and affirmatively agrees not to allege or otherwise pursue any defenses, affirmative defenses, counterclaims, claims, causes of action, setoffs or other rights they do, shall or may have as of the date hereof, including the rights to contest:
(a) the right of Collateral Agent and each Lender to exercise its rights and remedies described in the Loan Documents; (b) any provision of this Amendment or the Loan Documents; or (c) any conduct of the Lenders
or other Releasees relating to or arising out of the Loan Agreement or the other Loan Documents on or prior to the date hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Second Amendment to Loan and Security Agreement to be executed as of the date first set forth above.
BORROWER:
TEMPEST THERAPEUTICS, INC.
By /s/ Stephen Brady
Name: Stephen Brady
Title: Chief Executive Officer
BORROWER:
TEMPESTTX, INC.
By /s/ Stephen Brady
Name: Stephen Brady
Title: Chief Executive Officer
BORROWER:
MILLENDO THERAPEUTICS US, INC.
By /s/ Stephen Brady
Name: Stephen Brady
Title: Chief Executive Officer
COLLATERAL AGENT AND LENDER:
OXFORD FINANCE LLC
By /s/ Colette H. Featherly
Name: Colette H. Featherly
Title: Secretary
LENDER:
OXFORD FINANCE FUNDING 2019-1, LLC
By /s/ Colette H. Featherly
Name: Colette H. Featherly
Title: Secretary