FIRST amendment to Loan and security agreement

Exhibit 10.1

 

FIRST amendment

to

Loan and security agreement

This First Amendment to Loan and Security Agreement (this “Amendment”) is entered into this 28th day of June, 2024, by and between Silicon Valley Bank, a division of First-Citizens Bank & Trust Company (“Bank”) and OLEMA PHARMACEUTICALS, INC., a Delaware corporation (“Borrower”).

Recitals

A. Bank and Borrower have entered into that certain Loan and Security Agreement dated as of September 5, 2023 (as the same may from time to time be amended, modified, supplemented or restated, the “Loan Agreement”).

B. Bank has extended credit to Borrower for the purposes permitted in the Loan Agreement.

C. ▇▇▇▇▇▇▇▇ has requested that Bank amend the Loan Agreement to (i) add a new 2024 Term Loan and (ii) make certain other revisions to the Loan Agreement as more fully set forth herein.

D. Bank has agreed to so amend certain provisions of the Loan Agreement, but only to the extent, in accordance with the terms, subject to the conditions and in reliance upon the representations and warranties set forth below.

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:

“ (a) Availability. Subject to the terms and conditions of this Agreement, upon ▇▇▇▇▇▇▇▇’s request, during Draw Period A, Bank shall make term loan advances in an amount not exceeding the Term A Loan Availability Amount (each such advance is referred to herein as a “Term A Loan Advance” and, collectively, as the “Term A Loan Advances”). Subject to the terms and conditions of this Agreement, upon ▇▇▇▇▇▇▇▇’s request, during Draw Period B, Bank shall make term loan advances in an amount not exceeding the Term B Loan Availability

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Amount (each such advance is referred to herein as a “Term B Loan Advance” and, collectively, as the “Term B Loan Advances”). Subject to the terms and conditions of this Agreement, upon ▇▇▇▇▇▇▇▇’s request, during Draw Period C, Bank shall make term loan advances in an amount not exceeding the Term C Loan Availability Amount (each such advance is referred to herein as a “Term C Loan Advance” and, collectively, as the “Term C Loan Advances”). The Term A Loan Advances, the Term B Loan Advances, and the Term C Loan Advances are each referred to herein as a “Term Loan Advance” and, collectively, as the “Term Loan Advances”. Borrower may request Term Loan Advances as set forth on Schedule I hereto.”

“ (a) Maintain (i) at least one (1) operating account at Bank and (ii) account balances in the name of Borrower at Bank which represent at least 50.0% (excluding the account balance maintained in the Permitted JPM Operating Account) of the Dollar value of Borrower’s, its Subsidiaries, and any Guarantor’s cash, wherever located (the “Account Threshold”). So long as Borrower is in compliance with the Account Threshold, Borrower shall be permitted to maintain accounts with financial institutions other than Bank (individually, a “Permitted Account” and collectively, the “Permitted Accounts”), provided that each Permitted Account shall be subject to a Control Agreement in favor of Bank pursuant to the terms of Section 5.7(c). In addition to the foregoing, Borrower shall at all times have unrestricted cash in accounts maintained in the name of Borrower with Bank and Bank’s Affiliates, in an amount equal to the lesser of (i) one hundred percent (100.0%) of the Dollar value of all account balances of Borrower, its Subsidiaries, and any Guarantor, wherever located, and (ii) one hundred ten percent (110.0%) of the outstanding Obligations of Borrower to Bank (the “Account Threshold”).”

“ 5.15 Cash Collateralization. If, at any time, the outstanding Obligations with respect to the Term Loan Advances exceeds $25,000,000.00, then Borrower shall maintain, during such time, Liquidity in an amount of at least $100,000,000.00 (the “Required Liquidity Amount”). If, at any time during which Borrower is required to maintain the Required Liquidity Amount, Borrower fails to maintain the Required Liquidity Amount (which failure in and of itself is not a Default or an Event of Default) (the “Trigger Event”), Borrower shall promptly (and in any event, within three (3) Business Days) deposit into the SVB Operating Account, unrestricted and unencumbered (other than Liens in favor of Bank arising under the Loan Documents) cash in an amount greater than or equal to the amount of all outstanding Obligations with respect to the Term Loan Advances in excess of $25,000,000.00 (the “Cash Collateralized Amount”), to secure such outstanding

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Obligations (a “Cash Collateralization”) (and the failure to so deposit the Cash Collateralized Amount into the SVB Operating Account within three (3) Business Days shall be an Event of Default). Borrower hereby authorizes and directs Bank to transfer to the Collateral Money Market Account an amount equal to the Cash Collateralized Amount at any time after the occurrence of the Trigger Event and (i) after Borrower deposits the Cash Collateralized Amount into the SVB Operating Account or (ii) if Borrower fails to effect a Cash Collateralization as required under this Section 5.15. If, at any time following the occurrence of a Trigger Event, (x) the outstanding Obligations with respect to the Term Loan Advances are less than or equal to $25,000,000.00 or (y) the Borrower maintains the Required Liquidity Amount, Bank shall promptly (and in any event, within three (3) Business Days) transfer all amounts then on deposit in the Collateral Money Market Account to an unrestricted operating account in the name of Borrower maintained at Bank.”

“ “Loan Documents” are, collectively, this Agreement and any schedules, exhibits, certificates, notices, and any other documents related to this Agreement, the Perfection Certificate, the Cash Pledge Agreement, any Control Agreement, any Bank Services Agreement, any subordination agreement, any note, or notes or guaranties executed by Borrower or any Guarantor, landlord waivers and consents, bailee waivers and consents, and any other present or future agreement by Borrower and/or any Guarantor with or for the benefit of Bank in connection with this Agreement or Bank Services, all as amended, restated, or otherwise modified in accordance with the terms thereof.”

“ “Prepayment Fee” shall be an additional fee, payable to Bank, with respect to each Term Loan Advance, in an amount equal to:

(a) for a prepayment of the Term Loan Advances made on or prior to the first (1st) anniversary of the First Amendment Effective Date, 3.0% of the then-outstanding principal amount of the Term Loan Advances being prepaid immediately prior to the date of such prepayment;

(b) for a prepayment of the Term Loan Advances made after the first (1st) anniversary of the First Amendment Effective Date, but on or prior to the second (2nd) anniversary of the First Amendment Effective Date, 2.0% of the then-outstanding principal amount of the Term Loan Advances being prepaid immediately prior to the date of such prepayment; and

(c) for a prepayment of the Term Loan Advances made after the second (2nd) anniversary of the First Amendment Effective Date, but prior to the Term Loan Maturity Date, 1.00% of the then-outstanding principal amount of the Term Loan Advances immediately prior to the date of such prepayment.

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Notwithstanding the foregoing, provided no Event of Default has occurred and is continuing, the Prepayment Fee shall be waived by Bank, if Bank closes on the refinance and redocumentation of the Term Loan Advances (in its sole and absolute discretion) prior to the Term Loan Maturity Date.”

“ “Cash Collateralization” is defined in Section 5.15.”

“ “Cash Collateralized Amount” is defined in Section 5.15.”

“ “Cash Pledge Agreement” is that certain Bank Services Cash Pledge Agreement dated as of the First Amendment Effective Date executed by ▇▇▇▇▇▇▇▇ in favor of Bank.”

“ “Collateral Money Market Account” means a segregated collateral money market account of Borrower maintained with Bank, which is subject to the Cash Pledge Agreement.”

“ “Draw Period C” is set forth on Schedule I hereto.”

“ “First Amendment Effective Date” is June 28, 2024.”

“ “Liquidity” means unrestricted and unencumbered (other than Liens in favor of Bank arising under the Loan Documents) cash and Cash Equivalents in accounts in the name of Borrower maintained with Bank or Bank’s Affiliates or maintained with financial institutions other than Bank which are subject to a Control Agreement in favor of Bank.”

“ “Required Liquidity Amount” is defined in Section 5.15.”

“ “SVB Operating Account” is ▇▇▇▇▇▇▇▇’s account ending in 523 maintained at Bank.”

“ “Term C Loan Advance” and “Term C Loan Advances” are each defined in Section 1.1(a) hereof.”

“ “Term C Loan Availability Amount” is set forth on Schedule I hereto.”

“ “Trigger Event” is defined in Section 5.15.”

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In Witness Whereof, the parties hereto have caused this Amendment to be executed as of the date first written above.

BANK	BORROWER
First-Citizens Bank & Trust Company By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇: Managing Director	OLEMA PHARMACEUTICALS, INC. By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇: ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇: Chief Operating and Financial Officer

 

 

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Schedule 1

SCHEDULE I

LSA PROVISIONS

LSA Section	LSA Provision
1.1(a) – Term Loan – Availability	Each Term Loan Advance must be in an amount equal to at least $5,000,000.00. After repayment, no Term Loan Advance (or any portion thereof) may be reborrowed.
1.1(b) – Term Loan – Repayment	Commencing on August 1, 2026 and continuing on each Payment Date thereafter, Borrower shall repay each Term Loan Advance in (i) 24 consecutive equal monthly installments of principal, plus (ii) monthly payments of accrued interest at the rate set forth in Section 1.2(b)(i).
1.2(a) – Interest Payments – Term Loan Advances	Interest on the principal amount of each Term Loan Advance is payable in arrears monthly (A) on each Payment Date commencing on the first Payment Date following the Funding Date of each such Term Loan Advance, (B) on the date of any prepayment and (C) on the Term Loan Maturity Date.
1.2(b)(i) – Interest Rate – Term Loan Advances	The outstanding principal amount of any Term Loan Advance shall accrue interest at a floating rate per annum equal to the greater of (1) 8.0% and (2) the Prime Rate, 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.
12.2 – “Draw Period A”	“Draw Period A” is the period commencing as of the Effective Date and ending on June 30, 2025.
12.2 – “Draw Period B”	“Draw Period B” is the period commencing upon the occurrence of the Term B Milestone Event and ending on July 31, 2026.
12.2 – “Draw Period C”	“Draw Period C” is the period commencing upon the occurrence of the Term C Milestone Event and ending on July 31, 2026.
12.2 – “Effective Date”	“Effective Date” is September 5, 2023.
12.2 – “Payment Date”	“Payment Date” is the first (1st) calendar day of each month.
12.2 – “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 Bank, the “Prime Rate” shall mean the rate of interest per annum announced by Bank as its prime rate in effect at its principal office in the State of California (such Bank announced Prime Rate not being intended to be the lowest rate of interest charged by Bank 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.
12.2 – “Term A Loan Availability Amount”	“Term A Loan Availability Amount” is an aggregate principal amount equal to $25,000,000.00.

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12.2 – “Term B Loan Availability Amount”	“Term B Loan Availability Amount” is an aggregate principal amount equal to $25,000,000.00.
12.2 – “Term B Milestone Event”	“Term B Milestone Event” means Borrower has delivered to Bank, on or prior to July 31, 2026, evidence satisfactory to Bank in its sole and absolute discretion, that ▇▇▇▇▇▇▇▇ has obtained the resources necessary to execute a proposed first-line pivotal Phase 3 clinical trial of palazestrant in combination with ribociclib [ * ].
12.2 – “Term C Loan Availability Amount”	“Term C Loan Availability Amount” is an aggregate principal amount equal to $50,000,000.00.
12.2 – “Term C Milestone Event”	“Term C Milestone Event” occurs if and when (if ever), at any time prior to July 31, 2026, Bank confirms in writing that: (a) Borrower has requested and Bank has made all available Term A Loan Advances and Term B Loan Advances, (b) Bank has received all necessary internal and credit approvals to make the Term C Loan Advances in an amount not to exceed the Term C Availability Amount, (c) no Event of Default exists at the time the initial Term C Loan Advance is requested or would exist as a result of the initial Term C Loan Advance, and (d) Bank has provided written approval in its sole discretion that the initial Term C Loan Advance shall occur.
12.2 – “Term Loan Maturity Date”	“Term Loan Maturity Date” is July 1, 2028.

 

 

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Schedule 2

EXHIBIT A

COMPLIANCE STATEMENT

TO: Silicon Valley Bank, a division of First-Citizens Bank & Trust Company Date:

FROM: OLEMA PHARMACEUTICALS, INC.

Under the terms and conditions of the Loan and Security Agreement between Borrower and Bank (as amended, modified, supplemented and/or restated from time to time, the “Agreement”), Borrower is in complete compliance for the period ending _______________ with all required covenants except as noted below. Attached are the required documents evidencing such compliance, setting forth calculations prepared in accordance with GAAP consistently applied from one period to the next except as explained in an accompanying letter or footnotes. Capitalized terms used but not otherwise defined herein shall have the meanings given them in the Agreement.

Please indicate compliance status by circling Yes/No under “Complies” column.
Reporting Covenants	Required	Complies
Compliance Statement	Monthly within 30 days (except for the months ending March 31, June 30, September 30, and December 31)	Yes No
Quarterly Compliance Statement	Q1, Q2, and Q3 within 45 days	Yes No
10-Q Report	Within 45 days of Q1, Q2, and Q3	Yes No
10-K Report and Annual financial statements (CPA Audited)	FYE within 90 days	Yes No
Board approved projections	FYE within 30 days and as amended/updated	Yes No
Filed 10-Q, 10-K and 8-K	Within 10 days after filing with SEC	Yes No

Section 5.7(a) (Operating Accounts):

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5.15 Cash Collateralization:

The following are the exceptions with respect to the statements above: (If no exceptions exist, state “No exceptions to note.”)

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The following bank account information set forth on Schedule 1 attached hereto is true and correct as of the date of this Compliance Statement:

 

 

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Schedule 1

BANK ACCOUNT REPORT

Under the terms and conditions of the Loan and Security Agreement between Borrower and Bank (as amended, modified, supplemented and/or restated from time to time, the “Agreement”), Borrower confirms that the below disclosed accounts represent all depository accounts and securities accounts presently open in the name of each Borrower, Subsidiary, or Guarantor, as applicable.

Each new account that has been opened since delivery of the previous Compliance Certificate is designated below with a “*”.

		Depository AC #	Financial Institution	Account Type (Depository / Securities)	Last Month Ending Account Balance	Purpose of Account
BORROWER Name/Address:
	1
	2
	3
	4
	5
	6
	7
SUBSIDIARY Name/Address
	1
	2
	3
	4
	5
	6
	7
Guarantor Name/Address
	1
	2
	3
	4
	5
	6
	7

 

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