Item 1.01. Entry into a Material Definitive Agreement.
On December 30, 2022, Acer Therapeutics Inc. (the “Company”) entered into an extension agreement (the “Extension Agreement”) with MAM Aardvark, LLC (“Marathon”) and the lenders party thereto (the “Lenders”), which amends that certain Credit Agreement, dated as of March 4, 2022, previously entered into by the parties (the “Marathon Credit Agreement”), as summarized in the Company’s Current Report 8-K filed on March 7, 2022. The effect of the Extension Agreement is (i) to extend the last date for the Company to request funding by the Lenders of the Term Loan Commitment (as defined in the Marathon Credit Agreement) of $42.5 million, from December 31, 2022 to January 16, 2023, and (ii) to extend the last date upon which the Company may pay the Term Loan Commitment fee (as set forth in Section 2.7(b) of the Marathon Credit Agreement), from 12 business days from approval by the U.S. Food and Drug Administration of OLPRUVA™ (sodium phenylbutyrate) for oral suspension in the U.S. for the treatment of certain patients living with urea cycle disorders involving deficiencies of carbamylphosphate synthetase, ornithine transcarbamylase, or argininosuccinic acid synthetase, which the Company previously announced on December 27, 2022, to 12 business days from January 16, 2023. These extensions are intended to provide the Company and Marathon additional time to conclude discussions presently underway, to determine whether they have an agreement to further amend or modify the existing terms and conditions of the Marathon Credit Agreement and/or related agreements.
The Extension Agreement does not amend or apply to the SWK Credit Agreement entered into between the Company and SWK Funding LLC (“SWK”) on March 4, 2022, by which SWK holds a first priority security interest in all of the Company’s assets.
The foregoing descriptions of the Extension Agreement and the Marathon Credit Agreement do not purport to be complete and are subject to and qualified in their entirety by reference to each of the Extension Agreement, a copy of which is attached hereto as Exhibit 10.1 and is incorporated herein by reference, and the Marathon Credit Agreement which is Exhibit 10.2 hereto and is incorporated herein by reference.
Forward-Looking Statements
This Item 1.01 contains "forward-looking statements” that involve substantial risks and uncertainties for purposes of the safe harbor provided by the Private Securities Litigation Reform Act of 1995. All statements, other than statements of historical facts, included in this Item 1.01 are forward-looking statements. Such statements include statements that the extensions are intended to provide the Company and Marathon additional time to conclude discussions and make determinations regarding the terms and conditions of the Marathon Credit Agreement and/or related agreements. There can be no assurance that the Company and Marathon will reach a definitive written agreement on any terms, or at all, before or after the extended period described above; or that any such amended or revised terms, if agreed, prove to be more favorable to the Company, compared to the terms of the Marathon Credit Agreement as presently structured. In addition, there can be no assurance of the Company’s ability to close upon and obtain the proceeds of the Term Loan Commitment set forth in the Marathon Credit Agreement or any other financing arrangements, or to satisfy the ongoing conditions and requirements for maintaining any current or future financing facilities.
Actual results and performance could differ materially from those projected in the forward-looking statements as a result of many factors, including, without limitation, the Company’s actual operating and capital requirements. The Company disclaims any intent or obligation to update these forward-looking statements to reflect events or circumstances that exist after the date on which they were made. Interested parties should review additional disclosures the Company makes in its filings with the Securities and Exchange Commission, including the Company’s Annual Report on Form 10-K and Quarterly Reports on Form 10-Q. These documents may be accessed for no charge at http://www.sec.gov.