Exhibit 10.2
WAIVER AND FIRST AMENDMENT TO
LOAN AND SECURITY AGREEMENT
This First Amendment to Loan and Security Agreement (this “Amendment”) is entered into this 10th day of April, 2023 by and between Silicon Valley Bank, a division of First-Citizens Bank & Trust Company (successor by purchase to the Federal Deposit Insurance Corporation as Receiver for Silicon Valley Bridge Bank, N.A. (as successor to Silicon Valley Bank)) (“Bank”) and Cue Biopharma, Inc., a Delaware corporation (“Borrower”), whose address is 21 Erie Street, Cambridge, Massachusetts 02139.
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:
“5.7 (Accounts).
any Guarantor’s primary operating accounts, depository accounts and excess cash with Bank; provided that accounts in the name of Borrower with Bank shall be in amount equal to at least $20,000,000.00 (the “Threshold Amount”). In addition to the foregoing, Borrower shall at all times have on deposit in operating and depository accounts maintained in the name of Borrower with Bank, unrestricted and unencumbered cash in an amount equal to the lesser of (i) one hundred percent (100.0%) of the Dollar value of Borrower’s consolidated cash, including any Subsidiaries’, Affiliates’, or related entities’ cash, in the aggregate, at all financial institutions, and (ii) the Threshold Amount. So long as, in each case, Borrower maintains the Threshold Amount with Bank, Borrower shall be permitted to maintain accounts with other banks or financial institutions (other than Bank) (the “Permitted Accounts”); provided that such Permitted Accounts (other than the Excluded Accounts) shall be subject to a Control Agreement in favor of Bank pursuant to the terms of Section 5.7(c) and 5.13 hereof.
“5.13 Post-Closing Condition. Deliver to Bank within 30 days after the First Amendment Effective Date, a duly executed Control Agreement with respect to the Permitted Accounts (other than the Excluded Accounts).”
“.” at the end of clause (k) thereof and inserting in lieu thereof “;”, and (iii) inserting the following new clauses (l) and (m) thereof to appear immediately following clause (k) thereof:
“ (l) Indebtedness incurred in connection with letters of credit with an aggregate face amount not to exceed $250,000.00 at any time (the “Permitted Letter of Credit”); and
“ (m) the Lien on the collateral account securing the obligations with respect to the Permitted Letter of Credit in an amount not to exceed $250,000.00 (the “Permitted Letter of Credit Cash Collateral Account”); and
“ “Employee-Related Accounts” is defined in Section 5.7(c).”
“ “Excluded Accounts” means, collectively, (i) the Employee-Related Accounts, (ii) the Permitted Credit Card Cash Collateral Account and (iii) Permitted Letter of Credit Cash Collateral Account.”
“ “First Amendment Effective Date” is April 10, 2023.” “ “Permitted Accounts” is defined in Section 5.7(a).”
“ “Permitted Credit Cards” is defined in clause (m) of Permitted Indebtedness.”
“ “Permitted Credit Card Cash Collateral Account” is defined in clause
(n) of Permitted Liens.”
“ “Permitted Letter of Credit” is defined in clause (l) of Permitted Indebtedness.”
“ “Permitted Letter of Credit Cash Collateral Account” is defined in clause (m) of Permitted Liens.”
“ “Threshold Amount” is defined in Section 5.7(a).”
officers, directors, agents, representatives, attorneys, and each of them, from any and all claims, debts, liabilities, demands, obligations, promises, acts, agreements, costs and expenses, actions and causes of action, of every type, kind, nature, description or character whatsoever, whether known or unknown, suspected or unsuspected, absolute or contingent, arising out of or in any manner whatsoever connected with or related to facts, circumstances, issues, controversies or claims existing or arising from the beginning of time through and including the date of execution of this Amendment (collectively “Released Claims”). Without limiting the foregoing, the Released Claims shall include any and all liabilities or claims arising out of or in any manner whatsoever connected with or related to the Loan Documents, the recitals hereto, any instruments, agreements or documents executed in connection with any of the foregoing or the origination, negotiation, administration, servicing and/or enforcement of any of the foregoing.
“A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.” (Emphasis added.)
representation to Borrower regarding any fact relied upon by Borrower in entering into this Amendment.
recital.
hereof are known and understood by Borrower, and this Amendment is signed freely, and without duress, by Borrower.
[Signature page follows]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and delivered as of the date first written above.
BANK BORROWER
/s/ John Sansone | |
Name: John Sansone | |
Title: Vice President | |
| |
Date: April 10, 2023 |
| /s/ Kerri-Ann Millar |
Name: Kerri-Ann Millar | |
Title: Chief Financial Officer | |
(Principal Financial Officer and Principal Accounting Officer)
Date: April 10, 2023 |
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and delivered as of the date first written above.
BANK BORROWER
/s/ John Sansone | |
Name: John Sansone | |
Title: Vice President | |
| |
Date: April 10, 2023 |
| /s/ Kerri-Ann Millar |
Name: Kerri-Ann Millar | |
Title: Chief Financial Officer | |
(Principal Financial Officer and Principal Accounting Officer)
Date: April 10, 2023 |