Second Amendment to the Credit and Security Agreement with MidCap Financial Trust, dated February11, 2022
Exhibit 10.35
[***] = CERTAIN MARKED INFORMATION HAS BEEN OMITTED FROM THIS EXHIBIT BECAUSE IT IS BOTH NOT MATERIAL AND IS THE TYPE THAT THE REGISTRANT TREATS AS PRIVATE OR CONFIDENTIAL.
amendment No. 2 to CREDIT AND SECURITY AGREEMENT
This AMENDMENT NO. 2 TO CREDIT AND SECURITY AGREEMENT (this “Agreement”) is made as of this 11th day of February, 2022, by and among RIGEL PHARMACEUTICALS, INC., a Delaware corporation (“Rigel”), as a Borrower, MidCap FINANCIAL Trust, as Agent (in such capacity, together with its successors and assigns, “Agent”) and the financial institutions or other entities from time to time parties to the Credit Agreement referenced below, each as a Lender.
RECITALS
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing, the terms and conditions set forth in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Agent, Lenders and Borrower hereby agree as follows:
1. | Recitals. This Agreement shall constitute a Financing Document and the Recitals and each reference to the Credit Agreement, unless otherwise expressly noted, will be deemed to reference the Credit Agreement as amended hereby. Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to them in the Credit Agreement (including those capitalized terms used in the Recitals hereto). |
2. | Amendments to Existing Credit Agreement. Subject to the terms and conditions of this Agreement, including, without limitation, the conditions to effectiveness set forth in Section 4 below, the Existing Credit Agreement is hereby amended as follows: |
“(a)Nature of Credit Facility; Credit Extension Requests. Credit Extensions in respect of a Credit Facility may be requested by Borrower to be made by the applicable Lenders on any Business Day during the Draw Period for such Credit Facility, but no Credit Extensions in respect of a Credit Facility shall be made before the applicable Commitment Commencement Date or after the applicable Commitment Termination Date. For any Credit Extension requested under a Credit Facility (other than a Credit Extension on the Closing Date and the Credit Extensions on the Second
Amendment Effective Date), Agent must receive the completed Credit Extension Form by 12:00 noon (New York time) ten (10) Business Days prior to the date the Credit Extension is to be funded (other than the Credit Extension made on the Closing Date). To the extent any Credit Facility proceeds are repaid for any reason, whether voluntarily or involuntarily (including repayments from insurance or condemnation proceeds), Agent and the Lenders shall have no obligation to re-advance such sums to Borrower.”
“(iv)At any time after the earlier of (i) the Lenders have made Credit Extensions on or after August 31, 2022 in respect of Credit Facility #4 and (ii) the Lenders have made Credit Extensions in respect of Credit Facility #5, Borrower shall immediately (but in any event within three (3) Business Days) notify Agent if Borrower Unrestricted Cash has fallen below the Minimum Cash Threshold.”
“9.2[***].”
(i) | renumbering the existing clause (c) as clause (e) ; and |
(ii) | adding the following new clauses (c) and (d) in the appropriate alphabetical order therein: |
“(c) Rigel Pharmaceuticals LTDA,”
“(d) Rigel Pharmaceuticals, S. de R.L. de C.V., and”
““Second Amendment” means that certain Amendment No. 2 to Credit and Security Agreement dated February 11, 2022, among Borrower, Agent and Lenders party thereto.”
““Second Amendment Effective Date” means February 11, 2022.”
“License and Collaboration Agreement, dated February 18, 2021, between Rigel Pharmaceuticals, Inc. and Eli Lilly and Company;”
8. | Miscellaneous. |
[SIGNATURES APPEAR ON FOLLOWING PAGES]
IN WITNESS WHEREOF, intending to be legally bound, the undersigned have executed this Agreement as of the day and year first hereinabove set forth.
AGENT: | MIDCAP FINANCIAL TRUST, |
By: Apollo Capital Management, L.P.,
its investment manager
By:Apollo Capital Management GP, LLC,
its general partner
By: /s/ Maurice Amsellem
Name: Maurice Amsellem
Title: Authorized Signatory
LENDERS: | MIDCAP FINANCIAL TRUST, |
By: Apollo Capital Management, L.P.,
its investment manager
By:Apollo Capital Management GP, LLC,
its general partner
By: /s/ Maurice Amsellem
Name: Maurice Amsellem
Title: Authorized Signatory
LENDERS:ELM 2020-3 TRUST
By: MidCap Financial Services Capital Management, LLC, as Servicer
By: /s/ John O’Dea
Name: John O’Dea
Title: Authorized Signatory
ELM 2020-4 TRUST
By: MidCap Financial Services Capital Management, LLC, as Servicer
By: /s/ John O’Dea
Name: John O’Dea
Title: Authorized Signatory
LENDERS:APOLLO INVESTMENT CORPORATION
By: Apollo Investment Management, L.P., as Advisor
By: ACC Management, LLC, as its General Partner
By: /s/ Joseph D. Glatt
Name: Joseph D. Glatt
Title: Vice President
BORROWER: | RIGEL PHARMACEUTICALS, INC. By: /s/ Dean Schorno |
Schedule 1
Credit Facility #3:
Credit Facility and Type:Term, Tranche 3
Lenders for and their respective Applicable Commitments to this Credit Facility:
Lender | Applicable Commitment |
MidCap Financial Trust | Seven Million Dollars ($7,000,000) |
Apollo Investment Corporation | Three Million Dollars ($3,000,000) |
| |
Total: | Ten Million Dollars ($10,000,000) |
The following defined terms apply to this Credit Facility:
Applicable Funding Conditions: N/A.
Applicable Interest Period: means the one-month period starting on the first (1st) day of each month and ending on the last day of such month; provided, however, that the first (1st) Applicable Interest Period for each Credit Extension under this Credit Facility shall commence on the date that the applicable Credit Extension is made and end on the last day of such month.
Applicable Floor: means one and one half percent (1.50%) per annum for the Applicable Libor Rate.
Applicable Margin: a rate of interest equal to five and sixty-five one-hundredths percent (5.65%) per annum.
Applicable Prepayment Fee: means the following amount, calculated as of the date (the “Accrual Date”) that the Applicable Prepayment Fee becomes payable in the case of prepayments required under the Financing Documents or the date any voluntary prepayment is made: (a) for an Accrual Date on or after the Closing Date through and including the date which is twelve (12) months after the Closing Date, two and one half percent (2.5%) multiplied by the amount of the outstanding principal of the Credit Extension prepaid or required to be prepaid (whichever is greater); (b) for an Accrual Date after the date which is twelve (12) months after the Closing Date through and including the date which is twenty-four (24) months after the Closing Date, one and one half percent (1.5%) multiplied by the amount of the outstanding principal of the Credit Extension prepaid or required to be prepaid (whichever is greater); and (c) for an Accrual Date after the date which is twenty-four (24) months after the Closing Date through and including the date immediately preceding the Maturity Date, one percent (1.0%) multiplied by the amount of the outstanding principal of the Credit Extension prepaid or required to be prepaid (whichever is greater).
Commitment Commencement Date: the Second Amendment Effective Date.
Commitment Termination Date: the close of business on the Business Day following the Second Amendment Effective Date.
Minimum Credit Extension Amount: $10,000,000.00
1
Schedule 2
Credit Facility #4:
Credit Facility and Type:Term, Tranche 4
Lenders for and their respective Applicable Commitments to this Credit Facility:
Lender | Applicable Commitment |
MidCap Financial Trust | Seven Million Dollars ($7,000,000) |
Apollo Investment Corporation | Three Million Dollars ($3,000,000) |
| |
Total: | Ten Million Dollars ($10,000,000) |
The following defined terms apply to this Credit Facility:
Applicable Funding Conditions: means:
Applicable Interest Period: means the one-month period starting on the first (1st) day of each month and ending on the last day of such month; provided, however, that the first (1st) Applicable Interest Period for each Credit Extension under this Credit Facility shall commence on the date that the applicable Credit Extension is made and end on the last day of such month.
Applicable Floor: means one and one half percent (1.50%) per annum for the Applicable Libor Rate.
Applicable Margin: a rate of interest equal to five and sixty-five one-hundredths percent (5.65%) per annum.
Applicable Prepayment Fee: means the following amount, calculated as of the date (the “Accrual Date”) that the Applicable Prepayment Fee becomes payable in the case of prepayments required under the Financing Documents or the date any voluntary prepayment is made: (a) for an Accrual Date on or after the Closing Date through and including the date which is twelve (12) months after the Closing Date, two and one half percent (2.5%) multiplied by the amount of the outstanding principal of the Credit Extension prepaid or required to be prepaid (whichever is greater); (b) for an Accrual Date after the date which is twelve (12) months after the Closing Date through and including the date which is twenty-four (24) months after the Closing Date, one and one half percent (1.5%) multiplied by the amount of the outstanding principal of the Credit Extension prepaid or required to be prepaid (whichever is greater); and (c) for an Accrual Date after the date which is twenty-four (24) months after the Closing Date through and including the date immediately preceding the Maturity Date, one percent (1.0%) multiplied by the amount of the outstanding principal of the Credit Extension prepaid or required to be prepaid (whichever is greater).
Commitment Commencement Date: the Second Amendment Effective Date.
Commitment Termination Date: the earliest to occur of (a) March 31, 2023, (b) the date on which any Credit Extensions are made by the Lenders in respect of Credit Facility #5, and (c) the delivery of a written notice by Agent to Borrower terminating the Applicable Commitments following an Event of Default that has not been waived or cured at the time such notice is delivered.
Minimum Credit Extension Amount: $10,000,000.00
2
Schedule 3
Credit Facility #5:
Credit Facility and Type:Term, Tranche 5
Lenders for and their respective Applicable Commitments to this Credit Facility:
Lender | Applicable Commitment |
MidCap Financial Trust | Fourteen Million Dollars ($14,000,000) |
Apollo Investment Corporation | Six Million Dollars ($6,000,000) |
| |
Total: | Twenty Million Dollars ($20,000,000) |
The following defined terms apply to this Credit Facility:
Applicable Funding Conditions: means the following:
Applicable Interest Period: means the one-month period starting on the first (1st) day of each month and ending on the last day of such month; provided, however, that the first (1st) Applicable Interest Period for each Credit Extension under this Credit Facility shall commence on the date that the applicable Credit Extension is made and end on the last day of such month.
Applicable Floor: means one and one half percent (1.50%) per annum for the Applicable Libor Rate.
Applicable Margin: a rate of interest equal to five and sixty-five one-hundredths percent (5.65%) per annum.
Applicable Prepayment Fee: means the following amount, calculated as of the date (the “Accrual Date”) that the Applicable Prepayment Fee becomes payable in the case of prepayments required under the Financing Documents or the date any voluntary prepayment is made: (a) for an Accrual Date on or after the Closing Date through and including the date which is twelve (12) months after the Closing Date, two and one half percent (2.5%) multiplied by the amount of the outstanding principal of the Credit Extension prepaid or required to be prepaid (whichever is greater); (b) for an Accrual Date after the date which is twelve (12) months after the Closing Date through and including the date which is twenty-four (24) months after the Closing Date, one and one half percent (1.5%) multiplied by the amount of the outstanding principal of the Credit Extension prepaid or required to be prepaid (whichever is greater); and (c) for an Accrual Date after the date which is twenty-four (24) months after the Closing Date through and including the date immediately preceding the Maturity Date, one percent (1.0%) multiplied by the amount of the outstanding principal of the Credit Extension prepaid or required to be prepaid (whichever is greater).
Commitment Commencement Date: The satisfaction of the Applicable Funding Conditions for this Credit Facility.
Commitment Termination Date: the earliest to occur of (a) March 31, 2023, and (b) the delivery of a written notice by Agent to Borrower terminating the Applicable Commitments following an Event of Default that has not been waived or cured at the time such notice is delivered.
Minimum Credit Extension Amount: $20,000,000.00
3
Schedule 4
AMORTIZATION SCHEDULE (FOR EACH CREDIT FACILITY)
Credit Facility #1
Commencing on October 1, 2021 (the “Initial Amortization Start Date”) and continuing on the first day of each calendar month thereafter, an amount equal to the aggregate principal amount advanced under Credit Facility #1 divided by thirty-six (36); provided if Borrower provides evidence satisfactory to Agent that the applicable IO Extension Conditions (as defined below) have been satisfied at least ten (10) Business Days prior to the Initial Amortization Start Date, then the Initial Amortization Start Date shall be extended such that principal payments shall commence on the applicable Extended Amortization Start Date and shall be in an amount equal to the aggregate principal amount advanced under Credit Facility #1 divided by the number of full calendar months remaining (including the month in which the first amortization payment is made) before the occurrence of the Maturity Date.
Credit Facility #2:
Commencing on the Initial Amortization Start Date and continuing on the first day of each calendar month thereafter, an amount equal to the aggregate principal amount advanced under Credit Facility #2 divided by thirty-six (36); provided if Borrower provides evidence satisfactory to Agent that the applicable IO Extension Conditions (as defined below) have been satisfied at least ten (10) Business Days prior to the applicable Initial Amortization Start Date, then the Initial Amortization Start Date shall be extended such that principal payments shall commence on the Extended Amortization Start Date and shall be in an amount equal to the aggregate principal amount advanced under Credit Facility #2 divided by the number of full calendar months remaining (including the month in which the first amortization payment is made) before the occurrence of the Maturity Date.
Credit Facility #3:
Commencing on the latest to occur of (a) the first day of the first full calendar month immediately following such Credit Extension, and (b) the applicable Extended Amortization Start Date (if any), and, in each case, continuing on the first day of each calendar month thereafter, Borrowers shall make principal payments in an amount equal the outstanding Credit Extension in respect of Credit Facility #3 divided by the number of full calendar months remaining (including such first full calendar month) before the occurrence of the Maturity Date.
Credit Facility #4:
Commencing on the latest to occur of (a) the first day of the first full calendar month immediately following such Credit Extension, and (b) the applicable Extended Amortization Start Date (if any), and, in each case, continuing on the first day of each calendar month thereafter, Borrowers shall make principal payments in an amount equal the outstanding Credit Extension in respect of Credit Facility #4 divided by the number of full calendar months remaining (including such first full calendar month) before the occurrence of the Maturity Date.
Credit Facility #5:
Commencing on the latest to occur of (a) the first day of the first full calendar month immediately following such Credit Extension, and (b) the applicable Extended Amortization Start Date (if any), and, in each case, continuing on the first day of each calendar month thereafter, Borrowers shall make principal payments in an amount equal the outstanding Credit Extension in respect of Credit Facility #5 divided by the number of full calendar months remaining (including such first full calendar month) before the occurrence of the Maturity Date.
Notwithstanding anything to the contrary contained in the foregoing, the entire remaining outstanding principal balance under all Credit Extensions shall mature and be due and payable upon the Maturity Date.
For purposes hereof of this Amortization Schedule, the following terms shall have the following meanings:
“IO Extension Conditions” means [***].
“Extended Amortization Start Date” means the earlier to occur of (a) if Borrower has satisfied the First IO Extension Conditions but fails to satisfy the Second IO Extension Conditions, October 1, 2022, or (b) if Borrower has satisfied both the First IO Extension Conditions and the Second IO Extension Conditions, October 1, 2023.
4