Exhibit 10.22
AMENDMENT TO AMENDED AND
RESTATED
LOAN AND SECURITY
AGREEMENT
THIS AMENDMENT to Amended and
Restated Loan and Security Agreement (this “Amendment”)
is entered into as of September 30, 2008, by and between Silicon
Valley Bank (“Bank”) and SenoRx, Inc., a Delaware
corporation (“Borrower”) whose address is 3 Morgan,
Irvine, California 92618.
R ECITALS
A. Bank and Borrower have entered into that certain
Amended and Restated Loan and Security Agreement dated as of
February 20, 2007 (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. Borrower has requested that Bank amend the Loan
Agreement, as herein set forth, and Bank has agreed to the same,
but only to the extent, in accordance with the terms, subject to
the conditions and in reliance upon the representations and
warranties set forth herein.
A GREEMENT
N OW ,
T HEREFORE
, 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:
1. Definitions.
Capitalized terms used but not
defined in this Amendment shall have the meanings given to them in
the Loan Agreement.
2. Amendments to Loan
Agreement. The Loan
Agreement is amended as follows, effective on the date
hereof:
2.1
Section 2.1.1(a) .
Section 2.1.1(a) is hereby amended in its entirety to read as
follows:
“(a) Availability .
Subject to the terms and conditions of this Agreement and to
deduction of Reserves, Bank will make Advances to Borrower under
this Agreement, provided that, after giving effect to such
Advances: (i) the total of the amount of all outstanding
Letters of Credit (including drawn but unreimbursed Letters of
Credit), plus (ii) an amount equal to the Letter of Credit
Reserves, plus (iii) the FX Reserve, plus (iv) amounts
used for Cash Management Services, plus (v) the outstanding
principal balance of all Advances (and without duplication of
amounts included in clause (iv) hereof, including any amounts
used for Cash Management Services) shall not exceed the lesser of
(X) the Maximum Dollar Amount minus the aggregate
amount of Exim Loans or (Y) the Borrowing
Base.”
2.2 Modification to Sections
2.1.2, 2.1.3 and 2.1.4. The clause in each of Sections 2.1.2, 2.1.3 and
2.1.4 that now reads as:
“(i) the total of the amount
of all outstanding Letters of Credit (including drawn but
unreimbursed Letters of Credit), plus (ii) an amount equal to
the Letter of Credit Reserves, plus (iii) the FX Reserve, plus
(iv) amounts used for Cash Management Services, and plus
(v) the outstanding principal balance of any Advances (and
without duplication of amounts included in clause (iv) hereof,
including any amounts used for Cash Management Services) shall not
exceed the lesser of (X) the Maximum Dollar Amount
minus the aggregate amount of Existing Equipment Advances
then outstanding, or (Y) the Borrowing Base.”
IS HEREBY AMENDED IN EACH SUCH
SECTION IN ITS ENTIRETY TO READ AS
FOLLOWS:
“(i) the total of the amount
of all outstanding Letters of Credit (including drawn but
unreimbursed Letters of Credit), plus (ii) an amount equal to
the Letter of Credit Reserves, plus (iii) the FX Reserve, plus
(iv) amounts used for Cash Management Services, and plus
(v) the outstanding principal balance of any Advances (and
without duplication of amounts included in clause (iv) hereof,
including any amounts used for Cash Management Services) shall not
exceed the lesser of (X) the Maximum Dollar Amount
minus the aggregate amount of Exim Loans then outstanding,
or (Y) the Borrowing Base.”
2.3
Section 2.1.5. Section 2.1.5 is hereby amended in its
entirety to read as follows:
“2.1.5 Overall Aggregate
Sublimit. In no event
shall the total amount of (i) outstanding Letters of Credit
(including drawn but unreimbursed Letters of Credit and any Letter
of Credit Reserve), and (ii) the FX Reserve, and
(iii) the amount of the Revolving Line utilized for Cash
Management Services, at any time exceed $1,000,000 in the aggregate
(the “Overall Sublimit”).
2.4 New
Section 2.1.7. A new
section is hereby added to the Loan Agreement, which new section
shall be denominated as “2.1.7 Term Loan” and shall be
deemed placed immediately following Section 2.1.6, and which
shall read as follows:
“2.1.7 Term
Loan
(a) Availability . During the
Draw Period, subject to the terms and conditions of this Agreement,
Bank agrees to make an advance to Borrower in the amount of
$2,000,000 in a single draw (the “ Term Loan ”)
in an aggregate original principal amount not to exceed
Two
-2-
Million Dollars ($2,000,000). After
repayment, no portion of the Term Loan may be
reborrowed.
As used herein, the term ‘
Draw Period ’ means the period of time beginning on
the closing date of the August 2008 Amendment and ending on
September 30, 2008.
(b) Interest-Only Period .
From the date of the making of the Term Loan until the date that is
six months thereafter (the “End Interest Period Date”),
interest only shall be payable on the Term Loan outstanding from
time to time.
(c) Repayment . The aggregate
principal amount of all Term Loan Advances outstanding at the end
of the interest-only period as aforesaid shall be repaid in
forty-eight (48) consecutive equal monthly installments of
principal plus interest, beginning on the first day of the month
following End Interest Period Date and continuing on the first day
of each of the succeeding forty-seven months, and on the last of
such scheduled payment dates the entire remaining principal amount
of the Term Loan, all accrued and unpaid interest thereon and all
other Obligations (other than inchoate indemnity obligations)
relating thereto shall be paid in full, provided ,
however , and notwithstanding the foregoing, the Term Loan
and all Obligations relating thereto shall become fully due and
payable upon the occurrence of the Revolving Line Maturity Date (as
in effect from time to time) if such date shall occur prior to the
maturity date as stated above in this clause (c).”
2.5
Section 2.3(a). Section 2.3(a) is hereby amended in its
entirety to read as follows:
“(a) Interest
Rates—Advances (Revolving Line) .
(i) Subject to clause (a)(ii) below
and Section 2.3(b), the principal amount of Advances
outstanding from time to time shall accrue interest at a floating
per annum rate equal to twenty-five (25) basis points
above the Prime Rate.
(ii) At any and all times that the
Liquidity Ratio is less than 2.00 to 1.00 in any month (such
occurrence being the “Rate Increase Condition”) as
reflected in the monthly financial statements of Borrower delivered
to Bank, then, in the immediately succeeding month after the Rate
Increase Condition arises and continuing until the month after the
Rate Increase Condition no longer is in effect based on the monthly
financial statements of Borrower delivers to Bank (at which time
the interest rate reverts to that stated in (i) above), the
principal amount of Advances outstanding from time to time shall
accrue interest at a floating per annum rate equal to one
percentage point (1.00%) above the Prime
-3-
Rate, with such rate further being
subject to the application of Section 2.3(b).
(a-1) Interest Rate—Term
Loan .
(i) Subject to clause (a)(ii) below
and Section 2.3(b), the principal amount of the Term Loan
outstanding from time to time shall accrue interest at a floating
per annum rate equal to seventy-five (75) basis points
above the Prime Rate.
(ii) If a Rate Increase Condition
occurs as reflected in the monthly financial statements of Borrower
delivered to Bank, then, in the immediately succeeding month after
the Rate Increase Condition arises and continuing until the month
after the Rate Increase Condition no longer is in effect based on
the monthly financial statements of Borrower delivers to Bank (at
which time the interest rate reverts to that stated in
(i) above), the principal amount of the Term Loan outstanding
from time to time shall accrue interest at a floating per
annum rate equal to one and one-half percentage points
(1.50%) above the Prime Rate, with such rate further being
subject to the application of Section 2.3(b).
(a-2) Interest
Rate—Equipment Advances . The interest rate applicable to
the Existing Equipment Advances is set forth in the Equipment
Advances Provisions.”
2.6 Deletion of
Section 2.3(f) .
Section 2.3(f) regarding minimum monthly interest is hereby
deleted and replaced with the following:
“(f)
[Reserved]”
2.7 Modified
Section 2.4(a). Section 2.4(a) is hereby amended in its
entirety to read as follows:
“(a) Loan Fee . A fully
earned, non-refundable aggregate loan fee in connection with the
August 2008 Amendment first year loan fee of $19,750 on the closing
date of the August 2008 Amendment; and a fully earned,
non-refundable second year revolving loan fee of $25,000 on the
first anniversary of the August 2008 Amendment;”
2.8 New
Section 2.4(c-1) . A
new section is hereby added to the Loan Agreement, which new
section shall be denominated as “2.4(c-1) Unused Revolving
Line Facility Fee” and shall be deemed placed immediately
following Section 2.4(c), and which shall read as
follows:
“(c-1) Unused Revolving
Line Facility Fee . A fee (the “Unused Revolving Line
Facility Fee”), payable monthly, in arrears, on a calendar
year basis, in an amount equal to 0.375% per annum of
the average
-4-
unused portion of the Revolving Line
credit facility including any unused portion of the credit facility
relating to the Exim Agreement, as determined by Bank. Borrower
shall not be entitled to any credit, rebate or repayment of any
Unused Revolving Line Facility Fee previously earned by Bank
pursuant to this Section notwithstanding any termination of the
Agreement or the suspension or termination of Bank’s
obligation to make loans and advances hereunder;”
2.9
Section 2.4(d) .
Section 2.4(d) is hereby amended in its entirety to read as
follows:
“(d) Collateral Monitoring
Fee . (i) For those periods when the average monthly
principal amount of Advances is equal to or less than $2,000,000,
then a monthly collateral monitoring fee of $500, payable in
arrears on the last day of each month (prorated for any partial
month at the beginning and upon termination of this Agreement); and
(ii) For those periods when the average monthly principal
amount of Advances together with Exim Loans is greater than
$2,000,000, then a monthly collateral monitoring fee of $2,000,
payable in arrears on the last day of each month (prorated for any
partial month at the beginning and upon termination of this
Agreement), provided that, for purposes of this subsection (d),
Advances shall not be deemed to include utilizations relating to
Letters of Credit, FX Forward Contracts or Cash Management Services
as long as utilizations do not result in a deemed Advance pursuant
to the terms and provisions hereof; and”
2.10 Section 4A (Exim
Provision)(New). A new
section is hereby added to the Loan Agreement, which new section
shall be denominated as “4A Exim Agreement; Cross
Collateralization; Cross Default” and shall be deemed placed
immediately following Section 4, and which shall read as
follows:
“4A. EXIM AGREEMENT;
CROSS-COLLATERALIZATION; CROSS-DEFAULT .
The following provisions of this
Section 4A, and other references in this Agreement to Exim
Loans and the Exim Agreement shall only be effective from and after
the execution and delivery by Bank and the Borrower of a Loan and
Security Agreement (Ex-Im Loan Facility) on or about the date of
the August 2008 Amendment (the “Exim Agreement”), which
shall be a matter of Bank’s and Borrower’s sole
discretion. Both this Agreement and the Exim Agreement shall
continue in full force and effect, and all rights and remedies
under this Agreement and the Exim Agreement are cumulative. The
term “Obligations” as used in this Agreement and in the
Exim Agreement shall include without limitation the obligation to
pay when due all Credit Extensions made pursuant to this Agreement
(the “Non-Ex
