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EXHIBIT 10.10D
AMENDMENT
TO
LOAN AND SECURITY AGREEMENT
This Amendment to Loan and Security Agreement is entered into as of
December 27, 1996, by and between Silicon Valley Bank ("Bank") and Anergen,
Inc. ("Borrower").
RECITALS
Borrower and Bank are parties to that certain Loan and Security Agreement dated
as of June 23, 1995, as may have been or may be amended from time to time (the
"Agreement"). Borrower and Bank desire to amend the Agreement in accordance
with the terms of this Amendment.
NOW, THEREFORE, the parties agree as follows:
1. Amendments
(a) Section 1.1 of the Agreement is hereby amended by (i)
renumbering the existing paragraph therein as subsection (a), (ii) replacing
each reference in such subsection (a) to "Loan" or "Loans" with "Facility A
Loan" or "Facility A Loans," (iii) replacing the reference therein to "Note"
with "Facility A Note," and (iv) adding a new subsection (b) as follows:
"(b) At any time from the date hereof through December 31,
1997, Borrower may from time to time request up to six (6)
advances (each a "Facility B Loan" and, collectively, the
"Facility B Loans"), each in a minimum amount of One Hundred
Thousands Dollars ($100,000) from Bank in an aggregate principal
amount of up to One Million Five Hundred Thousand Dollars
($1,500,000). Facility B Loans will be subject to the terms of
this Agreement. Principal, interest and all other sums owing to
Bank under this Agreement shall be evidenced by a promissory
note in substantially the form attached as Exhibit A-1 hereto
(the "Facility B Note") and by entries in records maintained by
Bank. Each payment on, and any other credits with respect to
principal, interest and all other sums owing to Bank under, this
Agreement shall be evidenced by entries in such records.
Borrower may prepay any amounts due hereunder without penalty or
premium; provided, however, that Bank shall have the right to
include a prepayment premium in connection with the quote of any
fixed rate as described in Section 1.3(b)."
(b) Section 1.2.1 of the Agreement is hereby amended by (i)
renumbering the existing paragraph therein as subsection (a), (ii) replacing
each reference in such subsection (a) to "Loan" or "Loans" with "Facility A
Loan" or "Facility A Loans," and (iii) adding a new subsection (b) as follows:
"(b) The Facility B Loans shall be used to purchase
machinery and equipment (the "Equipment"), and up to Three
Hundred Twenty-Five Thousand Dollars ($325,000) of the Facility
B Loans may be used to finance tenant improvements
("Improvements"). Advances for Equipment hereunder shall not
exceed One Hundred Percent (100%) of the cost of Equipment
approved from time to time by Bank excluding installation
expense, freight and taxes. All Equipment shall be or have been
accepted under invoices dated on or after the date which is
ninety (90) days prior to the date Borrower requests the
Facility B Loan, except for the initial Facility B Loan for
which the applicable number of days shall be one hundred and
eighty (180)."
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(c) Section 1.2.2 of the Agreement is hereby amended by
(i) renumbering the existing paragraph therein as subsection (a), (ii)
replacing each reference in such subsection (a) to "Loan" or "Loans" with
"Facility A Loan" or "Facility A Loans," and (iii) adding a new subsection (b)
as follows:
"(b) Interest shall accrue from the date of each Facility B
Loan at the rate specified in Section 1.3(b). Each Facility B
Loan shall be payable in thirty-six (36) equal monthly
installments of principal, plus accrued interest, in the
thirtieth (30th) calendar day of each month (except for the
month of February in which payment shall be due on the 28th)
beginning on thirtieth calendar day of the month after such Loan
is advanced. All Facility B Loans under this Section 1 and all
other amounts due under this Agreement shall be immediately due
and payable on December 31, 2000."
(d) Section 1.3 of the Agreement is hereby amended by (i)
renumbering the existing paragraph therein as subsection (a), (ii) replacing
each reference in such subsection (a) to "Loan" or "Loans" with "Facility A
Loan" or "Facility A Loans," and (iii) adding a new subsection (b) as follows:
"(b) Each Facility B Loan shall bear interest on the
outstanding principal amount thereof, from the date such
Facility B Loan is made until it is repaid in full, at a rate
per annum equal to, at the option of Borrower, (i) the rate
announced by Bank from time to time as its prime rate (the
"Prime Rate") plus one percent (1.0%), which rate shall change
contemporaneously with any change in the Prime Rate or (ii) the
rate of interest equal to the U.S. Treasury note yield to
maturity for a term equal to thirty-six months as quoted in the
Western edition of The Wall Street Journal three days prior to
the date of the requested Facility B Loan, plus three and
one-half percent (3.50%). Interest will be computed daily on the
basis of a 360-day year for the actual number of days elapsed.
Interest shall be payable monthly in arrears on the 30th day of
each month (except for the month of February in which payment
shall be due on the 28th) (contemporaneously with principal
payments) and when such Facility B Loan is due (whether at
maturity, by reason of acceleration or otherwise). Any amounts
not paid when due shall bear interest at a rate per annum equal
to five percent (5%) above the highest rate then applicable to
the Facility B Loans, which interest shall be payable on
demand."
(e) Section 3.1.3 of the Agreement is hereby amended by
replacing the numerical reference to "$5,000,000" with "Six Million Dollars
($6,000,000)".
(f) Section 3.11 of the Agreement is hereby amended in its
entirety to read as follows:
"3.11 Tangible Net Worth. Maintain, as of the last day of each
of Borrower's fiscal quarters, a Tangible Net Worth of not
less than Five Million Dollars ($5,000,000)."
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(g) Section 3 of the Agreement is hereby amended to add a
new Section 3.15 thereto as follows:
"3.15 Debt/Tangible Net Worth. Maintain, as of the last day of
each of Borrower's fiscal quarters, a ratio of Total
Liabilities less Subordinated Debt to Tangible Net Worth
plus Subordinated Debt of not more than .50 to 1.00."
(h) Section 9.1 of the Agreement is hereby amended by
adding the following definitions in proper alphabetical order thereto:
"'Loan' or 'Loans' means a Facility A Loan or a
Facility B Loan."
"'Note' means the Facility A Note and the Facility B
Note."
"'Subordinated Debt' means any debt incurred by
Borrower that is subordinated to the debt owing by Borrower to
Bank on terms acceptable to Bank (and identified as being such
by Borrower and Bank)."
"'Total Liabilities' means at any date as of which the
amount thereof shall be determined, all obligations that should,
in accordance with GAAP be classified as liabilities on the
consolidated balance sheet of Borrower, including in any event
all indebtedness, but specifically excluding Subordinated Date."
(i) The Agreement is hereby amended by adding a new Exhibit
A-1 attached hereto.
(j) Exhibit C of the Agreement is hereby amended and
replaced in its entirety with the Exhibit C attached hereto.
2. Conditions Precedent to Effectiveness. The effectiveness of
this Amendment is subject to further conditions precedent that:
(a) Borrower shall have paid to Bank an amendment fee of Seven
Thousand Five Hundred Dollars ($7,500) and all Bank Expenses incurred
through the date hereof, including reasonable attorney's fees and
expenses; and
(b) Bank shall have received, in form and substance satisfactory
to Bank:
(i) a certificate of the secretary of Borrower with respect
to incumbency and resolutions authorizing the execution,
delivery and performance of this Amendment, and confirming
that the copies of the Articles of Incorporation and By Laws
previously delivered to Bank have not been amended and remain
in full force and effect;
(ii) a promissory note in substantially the form of Exhibit
A-1 duly executed by Borrower; and
(iii) a copy of this Amendment duly executed by Borrower.
3. No Defenses of Borrower. Borrower agrees, as of this date, that
it has no defenses against the obligations to pay any amounts under the
Indebtedness.
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4. Interpretation. Unless otherwise defined, all capitalized terms
in this Amendment shall be as defined in the Agreement.
5. Representations. Borrower represents and warrants that the
Representations and Warranties contained in the Agreement are true and correct
as of the date of this Amendment, and that no Event of Default has occurred and
is continuing.
6. MISCELLANEOUS.
1. Successors and Assigns. This Amendment shall be
binding upon and shall inure to the benefit of Borrower and Bank and their
respective successors and assigns; provided, however, that the foregoing shall
not authorize any assignment by Borrower of its rights or duties hereunder.
2. Entire Agreement. This Amendment and the Loan
Documents contain the entire agreement of the parties hereto and supersede any
other oral or written agreements or understandings.
3. Course of Dealing; Waivers. No course of dealing on the
part of Bank or its officers, nor any failure or delay in the exercise of any
right by Bank, shall operate as a waiver thereof, and any single or partial
exercise of any such right shall not preclude any later exercise of any such
right. Bank's failure at any time to require strict performance by Borrower of
any provision shall not affect any right of Bank thereafter to demand strict
compliance and performance. Any suspension or waiver of a right must be in
writing signed by an officer of Bank.
4. Legal Effect. Except as amended by this Amendment, the
Loan Documents remain in full force and effect. If any provision of this
Amendment conflicts with applicable law, such provision shall be deemed severed
from this Amendment, and the balance of this Amendment shall remain in full
force and effect.
5. Counterparts. This Amendment may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one instrument.
IN WITNESS WHEREOF, the undersigned have executed this Amendment as of
the first date above written.
ANERGEN, INC.
By [SIG]
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Title VP Finance and CFO
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SILICON VALLEY BANK
By [SIG]
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Title Senior Vice President
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