EXHIBIT 10.61
AMENDMENT NO. 1
TO
LOAN AND SECURITY
AGREEMENT
This A MENDMENT N O . 1 TO L OAN AND S ECURITY A GREEMENT (this “ Amendment ”)
is entered into as of March 30, 2009, by and among
S ILICON
V ALLEY B ANK ,
(“ Bank ”), S
CICLONE P HARMACEUTICALS I NTERNATIONAL LTD .,
a Cayman Islands exempted company (“ SPIL
”), and S CICLONE P HARMACEUTICALS I NTERNATIONAL C HINA H OLDING LTD. ,
a Cayman Islands exempted company (“ SPIL China
,” and together with SPIL, collectively, “
Borrowers ” and each a “
Borrower ”). Unless otherwise defined herein,
terms defined in the Loan Agreement (as defined below) shall have
the same meanings in this Amendment.
R ECITALS
|
A.
|
Borrowers and
Bank have entered into that certain Loan and Security Agreement
dated as of November 14, 2008 (the “ Loan
Agreement ”), pursuant to which the Bank has agreed
to extend and make available to Borrowers certain advances of
money.
|
|
B.
|
Parent intends
to enter into that certain Credit Line Account Application and
Agreement with UBS Bank USA executed by Parent on February 4,
2009 (as provided to Bank on February 13, 2009, together with
all attachments, addendums, and exhibits, as amended, the “
UBS ARS Loan Agreement ”) pursuant to which
Borrower grants to UBS a security interest in the UBS ARS
Account.
|
|
C.
|
Borrower
desires that Bank amend the Loan Agreement to exclude the UBS ARS
Account from the Collateral for the duration of the UBS ARS Loan
Agreement and make certain other changes, all upon the terms and
conditions more fully set forth herein.
|
|
D.
|
Subject to the
representations and warranties of Borrower herein and upon the
terms and conditions set forth in this Amendment, Bank is willing
to amend the Loan Agreement.
|
A GREEMENT
NOW, THEREFORE
, in consideration of the foregoing
Recitals and intending to be legally bound, the parties hereto
agree as follows:
|
1.
|
A
MENDMENTS
TO L OAN A GREEMENT .
|
|
|
1.1
|
Section 6.13 (UBS ARS Loan)
. A new Section 6.13 is added
to the Loan Agreement as follows:
|
“ 6.13 UBS ARS Loan .
Promptly deliver to Bank, a copy of any material letter, notice, or
communication related to the UBS ARS Loan.”
|
|
1.2
|
Section 7.11 (UBS ARS Account)
. Section 7.11 of the Loan
Agreement is amended in its entirety by replacing it with the
following:
|
“ 7.11 UBS ARS Account
. Notwithstanding anything else to the contrary in this Agreement,
(a) allow Parent to maintain, establish or use, any account,
other than the UBS ARS Account, at any UBS Entity, (b) allow
Parent to locate, store or keep, any value in the UBS ARS Account
other than the UBS ARS, (c) allow any of Borrowers’
Collateral to become subject to any lien arising out of the UBS ARS
Loan, (d) allow any additional collateral to be provided to a
UBS Entity for any reason, including, without limitation, pursuant
to Section 3e of the UBS ARS Loan Agreement, (e) allow
the Approved Amount (as defined in the UBS ARS Loan Agreement) to
exceed the lesser of (i) $1,800,000 or (ii) the amount
UBS Bank USA is willing to lend solely on the basis of the ARS
Collateral (as defined in the UBS ARS Loan Agreement and described
further in Section 3e thereof), or (f) pay any interest
to any UBS Entity with respect to the UBS ARS Loan in excess of the
interest earned from the UBS ARS.”
|
|
1.3
|
Section 8.13 (UBS Default)
. A new Section 8.13 is added
to the Loan Agreement as follows:
|
“ 8.13 UBS Default .
(a) A default occurs under the UBS ARS Loan Agreement, (b) UBS
Bank USA requires Collateral (as defined in the UBS ARS Loan
Agreement) other than the UBS ARS to be maintained in a Collateral
Account (as defined in the UBS ARS Loan Agreement), (c) any
Variable Rate Advance (as defined in the UBS ARS Loan Agreement)
becomes due and payable, or (d) any payment with respect to
the UBS ARS Loan is made to a UBS Entity (other than regularly
scheduled payments or a voluntary repayment in full of the UBS ARS
Loan).”
|
|
1.4
|
Section 13.1 (Definitions)
. The following defined terms and
their definitions in Section 13.1 of the Loan Agreement are
amended in their entirety and replaced by the following:
|
““ UBS ARS
Account ” means account number CP 15121 CPDE, as shown on
page 1 of the Addendum to Credit Line Account Application and
Agreement that forms a part of the UBS ARS Loan Agreement, and
which account contains only all or part of the UBS
ARS”
““ UBS ARS Loan
” is that certain “no net cost loan” by UBS Bank
USA to Parent in an amount not to exceed $1,800,000. The UBS ARS
Loan is also identified on page 1 of the Addendum to Credit Line
Account Application and Agreement that forms a part of the UBS ARS
Loan Agreement where such loan is listed as account number 5V 65919
CP.”
““ UBS ARS Loan
Agreement ” means that certain Credit Line Account
Application and Agreement with UBS Bank USA executed by Parent on
February 4, 2009 (as provided to Bank on February 13,
2009, together with all attachments, addendums, and exhibits, as
amended) pursuant to which Borrower grants to UBS a security
interest in the UBS ARS Account.”
|
|
1.5
|
Section 13.1 (Definitions)
. The following defined terms and
their definitions are added in their alphabetically appropriate
positions in Section 13.1 of the Loan Agreement:
|
““ UBS ARS
” means those certain Auction Rate Securities with an
aggregate face value of $1,800,000, as in existence on the
Effective Date.”
““ UBS Bank USA
” means UBS Bank USA and its successors and
assigns.”
|
|
1.6
|
Section 13.1 (Definitions)
. The defined term “UBS
Prospectus” and its definition is deleted from
Section 13.1 of the Loan Agreement
|
|
|
1.7
|
Exhibit A to
Loan Agreement (Collateral Description) . Exhibit A of the Loan Agreement is amended in
its entirety by deleting it and replacing it with Exhibit A
attached hereto.
|
|
2.
|
B
ORROWERS
’ R
EPRESENTATIONS
A ND W ARRANTIES .
|
|
|
2.1
|
Each Borrower
jointly and severally represents and warrants that:
|
|
|
(a)
|
immediately
upon giving effect to this Amendment (i) the representations
and warranties contained in the Loan Documents are true, accurate
and complete as of the date hereof (except to the extent such
representations and warranties relate to an earlier date, in which
case they are true and correct as of such date), and (ii) no
Event of Default has occurred and is continuing;
|
|
|
(b)
|
each Borrower
has the corporate power and authority to execute and deliver this
Amendment and to perform its obligations under the Loan Agreement,
as amended by this Amendment;
|
|
|
(c)
|
the certificate
of incorporation, bylaws and other organizational documents of
Borrowers delivered to Bank in connection with the execution of the
Loan Agreement, remain true, accurate and complete and have not
been amended, supplemented or restated and are and continue to be
in full force and effect;
|
|
|
(d)
|
the execution
and delivery by Borrowers of this Amendment and the performance by
Borrowers of its obligations under the Loan Agreement, as amended
by this Amendment, have been duly authorized by all necessary
corporate action on the part of each Borrower;
|
|
|
(e)
|
this Amendment
has been duly executed and delivered by each Borrower and is the
binding obligation of each Borrower, enforceable against each
Borrower and both Borrowers in accordance with the terms of this
Amendment, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization, liquidation, moratorium or
other similar laws of general application and equitable principles
relating to or affecting creditors’ rights; and
|
2
|
|
(f)
|
as of the date
hereof, neither Borrower has any defenses against the obligations
to pay any amounts under the Obligations. Each Borrower
acknowledges that Bank has acted in good faith and has conducted in
a commercially reasonable manner its relationships with Borrowers
in connection with this Amendment and in connection with the Loan
Documents.
|
|
|
2.2
|
Each Borrower
understands and acknowledges that Bank is entering into this
Amendment in reliance upon, and in partial consideration for, the
representations and warranties in Section 2.1, and agrees that
such reliance is reasonable and appropriate.
|
|
3.
|
L
IMITATION . The amendments set forth in this Amendment
shall
|
