Exhibit 10.52
FIRST AMENDMENT TO
LOAN AND SECURITY AGREEMENT
This FIRST AMENDMENT to Loan and Security Agreement (this “Amendment”) is entered into as of December 28, 2021, by and among (a) SILICON VALLEY BANK, a California corporation (“SVB”), in its capacity as administrative agent and collateral agent (“Agent”), (b) SVB, as a lender, (c) SVB INNOVATION CREDIT FUND VIII, L.P., a Delaware limited partnership (“SVB Capital”), as a lender (SVB and SVB Capital and each of the other “Lenders” from time to time a party hereto are referred to herein collectively as the “Lenders” and each individually as a “Lender”), and (d) ZIOPHARM ONCOLOGY, INC., a Delaware corporation (“Borrower”).
Recitals
Agreement
Now, Therefore, in consideration of the foregoing recitals and other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, and intending to be legally bound, the parties hereto agree as follows:
“1.1 Term Loan Advance.
WEST\296938853.4
WEST\296938853.4
“5.15 Cash Collateralization.
WEST\296938853.4
| “If to Borrower: | ZIOPHARM Oncology, Inc |
|
| 8030 El Rio Street |
|
| Houston, TX 77054 |
|
| Attn: Melinda Lackey |
|
| Email: MLackey@ziopharm.com |
| If to SVB Capital: | SVB Innovation Credit Fund VIII, L.P. |
|
| c/o SVB Capital |
|
| 2770 Sand Hill Road |
|
| Menlo Park, CA 94025 |
|
| Attn: SVB Capital Finance and Operations |
|
| Email: svbcapitalcredit@svb.com; and |
|
| SVBCapitalCreditFinance@svb.com” |
“Defaulting Lender” is, subject to Section 9.10(b), any Lender that (a) has failed to (i) fund all or any portion of its Term Loan Advance within two (2) Business Days of the date such Term Loan Advance were required to be funded hereunder unless such Lender notifies Agent and Borrower in writing that such failure is the result of such Lender’s reasonable determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to Agent or any other Lender any other amount required to be paid by it hereunder within two (2) Business Days of the date when due, (b) has notified Borrower or Agent in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund a Term Loan Advance hereunder and states that such position is based on such Lender’s reasonable determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three (3) Business Days after written request by Agent or Borrower, to confirm in writing to Agent and Borrower that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by Agent and Borrower), or (d) has, or has a direct or indirect parent company that has, (i) become the subject of an Insolvency Proceeding, or (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority)
WEST\296938853.4
to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 9.10(b)) upon delivery of written notice of such determination to Borrower and each Lender.
“First Amendment Effective Date” is December 28, 2021.
“Performance Milestones” means Agent and the Lenders have received, evidence, satisfactory to Agent and the Lenders, confirming that Borrower has (a) achieved positive data in the first (1st) cohort of the Library TCR-T trial endorsed by an independent safety monitoring committee as a safe dose to proceed with; and (b) received at least Fifty Million Dollars ($50,000,000) in net cash proceeds after the First Amendment Effective Date from the sale of Borrower’s equity securities on terms and conditions, acceptable to Agent and the Lenders.
“Prepayment Premium” shall be an additional fee, payable to Agent, for the ratable benefit of the Lenders based on their Pro Rata Share, with respect to the Term Loan Advance, in an amount equal to:
“Pro Rata Share” is, as of any date of determination,, with respect to each Lender, a percentage (expressed as a decimal, rounded to the ninth decimal place) determined by dividing the outstanding principal amount of the Term Loan Advance held by such Lender by the aggregate outstanding principal amount of the Term Loan Advance.
“Term Loan Advance” is defined in Section 1.1 of this Agreement.
“Warrant” means, collectively, (a) that certain Amended and Restated Warrant to Purchase Stock dated as of the First Amendment Effective Date issued by Borrower to SVB, (b) that certain Amended and Restated Warrant to Purchase Stock dated as of the First Amendment Effective Date issued by Borrower to SVB Capital, (c) that certain Amended and Restated Warrant to Purchase Stock dated as of the First Amendment Effective Date issued by Borrower to Innovation Credit Fund VIII-A, L.P. and (d) any other warrant to purchase stock issued by Borrower in favor of SVB, SVB Capital or any of their Affiliates heretofore or hereafter, in each case as may be amended, modified, supplemented and/or restated from time to time.
WEST\296938853.4
“Draw Period”, “Equity Milestone”, “Term A Loan Advance”, “Term B Loan Advance”, “Term B Milestone”, “Term Loan Advances”
WEST\296938853.4
[Balance of Page Intentionally Left Blank]
WEST\296938853.4
In Witness Whereof, the parties hereto have caused this Amendment to be duly executed and delivered as of the date first written above.
BORROWER:
ZIOPHARM ONCOLOGY, INC. |
| |
|
|
|
|
|
|
By: | /s/ Kevin Boyle Sr. |
|
|
|
|
Name: | Kevin Boyle Sr. |
|
|
|
|
Title: | Chief Executive Officer |
|
AGENT:
SILICON VALLEY BANK, as Agent |
| |
|
|
|
|
|
|
By: | /s/ Lauren Cole |
|
|
|
|
Name: | Lauren Cole |
|
|
|
|
Title: | Director |
|
LENDERS:
SILICON VALLEY BANK, as Lender |
| |
|
|
|
|
|
|
By: | /s/ Lauren Cole |
|
|
|
|
Name: | Lauren Cole |
|
|
|
|
Title: | Director |
|
SVB INNOVATION CREDIT FUND VIII, L.P., as Lender |
| |
|
|
|
|
|
|
By: | /s/ Ryan Grammer |
|
|
|
|
Name: | Ryan Grammer |
|
|
|
|
Title: | Senior Managing Director |
|
[Signature Page to First Amendment to Loan and Security Agreement]
WEST\296938853.4
SCHEDULE I
LSA PROVISIONS
LSA Section | LSA Provision |
1.1(a) – Term Loan Advance – Availability | The Term Loan Advance must be in an original principal amount equal to Twenty-Five Million Dollars ($25,000,000). After repayment, the Term Loan Advance (or any portion thereof) may not be reborrowed. The original principal amount of the Term Loan Advance shall not, at any time, exceed the Term Loan Availability Amount. |
1.1(b) – Term Loan Advance – Repayment | Commencing on the Term Loan Amortization Date and continuing on each Payment Date thereafter, Borrower shall repay the aggregate outstanding Term Loan Advance to Agent, for the account of the Lenders, in (i) twelve (12) consecutive, equal monthly installments of principal, plus (ii) monthly payments of accrued interest at the rate set forth in Section 1.2(b). |
1.2(a) – Interest Payments – Term Loan Advance | Interest on the principal amount of the Term Loan Advance is payable in arrears monthly (i) on each Payment Date commencing on the first (1st) Payment Date of the month following the month in which the Funding Date of the Term Loan Advance occurs, (ii) on the date of any prepayment and (iii) on the Term Loan Maturity Date. |
1.2(b) – Interest Rate – Term Loan Advance | The outstanding principal amount of the Term Loan Advance shall accrue interest at a floating rate per annum equal to the greater of (i) seven and three-quarters of one percent (7.75%) and (ii) the Prime Rate plus the Prime Rate Margin, which interest shall be payable in accordance with Section 1.2(a). |
1.2(e) – Interest Computation | Interest shall be computed on the basis of the actual number of days elapsed and a 360-day year for any Credit Extension outstanding. |
13.2 – “Borrower” | “Borrower” means ZIOPHARM ONCOLOGY, INC., a Delaware corporation. |
13.2 – “Effective Date” | “Effective Date” is August 6, 2021. |
13.2 – “Payment Date” | “Payment Date” is the first (1st) calendar day of each month. |
WEST\296938853.4
13.2 – “Prime Rate” | “Prime Rate” is the rate of interest per annum from time to time published in the money rates section of The Wall Street Journal or any successor publication thereto as the “prime rate” then in effect; provided that if such rate of interest, as set forth from time to time in the money rates section of The Wall Street Journal, becomes unavailable for any reason as determined by Agent, the “Prime Rate” shall mean the rate of interest per annum announced by SVB as its prime rate in effect at its principal office in the State of California (such SVB announced Prime Rate not being intended to be the lowest rate of interest charged by SVB in connection with extensions of credit to debtors); provided that, in the event 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. |
13.2 – “Prime Rate Margin” | “Prime Rate Margin” is four and one half of one percent (4.50%). |
13.2 – “Term Loan Amortization Date” | “Term Loan Amortization Date” is September 1, 2022; provided, however, if Borrower achieves the Performance Milestones on or prior to August 31, 2022, the Term Loan Amortization Date shall automatically, with no further action required by the parties hereto, be extended to September 1, 2023. |
13.2 – “Term Loan Availability Amount” | “Term Loan Availability Amount” is an aggregate principal amount equal to Twenty-Five Million Dollars ($25,000,000). |
13.2 – “Term Loan Maturity Date” | “Term Loan Maturity Date” is August 1, 2023; provided, however, if Borrower achieves the Performance Milestones on or prior to August 31, 2022, the Term Loan Maturity Date shall automatically, with no further actions required by the parties hereto be extended to August 1, 2024. |
WEST\296938853.4
SCHEDULE II
LENDERS AND COMMITMENTS
TERM LOAN COMMITMENTS
Lender | Term Loan Advance Commitment | Term Loan Advance Commitment Percentage |
Silicon Valley Bank | $17,500,000 | 70.0000% |
SVB Innovation Credit Fund VIII, L.P. | $7,500,000 | 30.0000% |
TOTAL | $25,000,000 | 100.0000% |