Exhibit 10.16
TENTH AMENDMENT TO LOAN AND SECURITY AGREEMENT
THIS TENTH AMENDMENT to Loan and Security Agreement (this “Amendment”) is made effective as of June 28, 2023 (the “Amendment Date”) and made, 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 from time to time to the Loan Agreement (defined below) including Oxford in its capacity as a Lender (each a “Lender” and collectively, the “Lenders”) and PLUS THERAPEUTICS, INC., a Delaware corporation with offices located at 4200 Marathon Blvd., Suite 200, Austin, Texas 78756 (“Borrower”).
WHEREAS, Collateral Agent, Borrower and Lenders party thereto from time to time have entered into that certain Loan and Security Agreement, dated as of May 29, 2015 (as amended, supplemented or otherwise modified from time to time, the “Loan Agreement”) pursuant to which 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:
If to Collateral Agent or Oxford:
OXFORD FINANCE LLC
115 South Union Street, Suite 300
Alexandria, Virginia 22314 Attention: Legal Department
Fax: (703) 519-5225
Email: LegalDepartment@oxfordfinance.com
with a copy (which shall not constitute notice) to:
Greenberg Traurig, LLP
One International Place Boston, MA 02110
Attn: Abdullah Malik Fax: (617) 897-0983
Email: malikab@gtlaw.com
“Basic Rate” is, with respect to a Term Loan, as determined by Collateral Agent, the per annum rate of interest (based on a year of three hundred sixty (360) days) equal to the greater of (i) Eight and Ninety-Five Hundredths percent (8.95%); and (ii) the sum of (a) 1-month Term SOFR, (b) .10%, and (c) Seven and Ninety-Five Hundredths percent (7.95%). Notwithstanding the foregoing, (i) in no event shall the Basic Rate
for any Term Loan be less than Eight and Ninety-Five Hundredths percent (8.95%), (ii) upon the occurrence of a Benchmark Transition Event, Collateral Agent may, in good faith and with reference to the margin above such interest rate in this definition, amend this Agreement to replace the Benchmark with a replacement
interest rate and replacement margin above such interest rate that results in a substantially similar interest rate floor and total rate in effect immediately prior to the effectiveness of such replacement interest rate and replacement margin, and any such amendment shall become effective at 5:00 p.m. Eastern time on the third Business Day after Collateral Agent has notified Borrower of such amendment, and (iii) the Basic Rate for the Term Loans for the period from the June 1, 2023 through and including June 30, 2023 shall be as in effect prior to the Tenth Amendment Date. Any determination, decision or election that may be made by Collateral Agent pursuant hereto will be conclusive and binding absent manifest error and may be made in Collateral Agent’s sole discretion and without consent from any other party.
“1-Month CME Term SOFR” is the 1-month CME Term SOFR reference rate as published by the CME Term SOFR Administrator on the CME Term SOFR Administrator’s Website.
“Benchmark” is, initially, the 1-Month CME Term SOFR; provided, that if a Benchmark Transition Event has occurred with respect to the 1-Month CME Term SOFR or the then-current Benchmark, then “Benchmark” means the applicable replacement rate that has replaced the immediately preceding benchmark rate pursuant to the defined term “Basic Rate”.
“Benchmark Transition Event” means the occurrence of one or more of the following events with respect to the then-current Benchmark:
“CME Term SOFR Administrator” is CME Group Benchmark Administration Limited, as administrator of the forward-looking term SOFR, or any successor administrator.
“CME Term SOFR Administrator’s Website” is the website of the CME Group Benchmark Administrator at http://www.cmegroup.com, or any successor source.
“Tenth Amendment Date” is June 28, 2023.
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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, as amended hereby.
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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 Tenth Amendment to the Loan Agreement to be executed as of the date first set forth above.
BORROWER:
PLUS THERAPEUTICS, INC.
By Name: Andrew Sims
Title: VP and Chief Financial Officer
COLLATERAL AGENT AND LENDER:
OXFORD FINANCE LLC
By Name: Joshua Friedman
Title: Chief Financial Officer