EXHIBIT 1.1
FIFTH AMENDMENT TO LOAN AND
SECURITY AGREEMENT
This Fifth Amendment to Loan and
Security Agreement (this “Amendment”) is entered into
as of September 30, 2009, by and between COMERICA BANK
(“Bank”) and ARRAY BIOPHARMA, INC.
(“Borrower”).
RECITALS
Borrower and Bank are parties to
that certain Loan and Security Agreement dated as of June 28,
2005, as amended from time to time, including by that certain First
Amendment to Loan and Security Agreement dated as of
December 19, 2005, that certain Second Amendment to Loan and
Security Agreement, Consent and Waiver dated as of July 7,
2006, that certain Third Amendment to Loan and Security Agreement
dated as of June 12, 2008 and that certain Fourth Amendment to
Loan and Security Agreement dated as of March 11, 2009
(collectively, the “Agreement”). The parties
desire to amend the Agreement in accordance with the terms of this
Amendment.
NOW, THEREFORE, the parties agree as
follows:
1.
The following defined terms in
Section 1.1 of the Agreement hereby are added, amended or
restated as follows:
“Equipment Maturity
Date” means October 26, 2010.
“Term Loan Maturity
Date” means October 26, 2010.
2.
Section 2.3(a)(ii) of the
Agreement hereby is amended and restated in its entirety to read as
follows:
“(ii)
Equipment Advances and Term
Loan . Except as
set forth in Section 2.3(b), the Equipment Advances and the
Term Loan shall bear interest, on the outstanding daily balance
thereof, as set forth in the Prime Referenced Rate Addendum to Loan
and Security Agreement attached as Exhibit D
hereto.”
3.
All references in the Loan Documents
to Bank’s address at 75 East Trimble Road, M/C 4770, San
Jose, California 95131, Attn: Manager shall mean and
refer to 39200 Six Mile Road, M/C 7578, Livonia, Michigan 48152,
Attn: National Documentation Services.
4.
Exhibit D to the Agreement
hereby is replaced with Exhibit D attached hereto.
5.
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.
6.
Unless otherwise defined, all
initially capitalized terms in this Amendment shall be as defined
in the Agreement. The Agreement, as amended hereby, shall be
and remain in full force and effect in accordance with its
respective terms and hereby is ratified and confirmed in all
respects. Except as expressly set forth herein, the
execution, delivery, and performance of this Amendment shall not
operate as a waiver of, or as an amendment of, any right, power, or
remedy of Bank under the Agreement, as in effect prior to the date
hereof.
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7.
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.
8.
As a condition to the effectiveness
of this Amendment, Bank shall have received, in form and substance
satisfactory to Bank, the following:
(a)
this Amendment, duly executed by
Borrower;
(b)
a Certificate of the Secretary of
Borrower with respect to incumbency and resolutions authorizing the
execution and delivery of this Amendment;
(c)
an Affirmation of Amended and
Restated Subordination Agreement;
(d)
all reasonable Bank Expenses
incurred through the date of this Amendment, which may be debited
from any of Borrower’s accounts; and
(e)
such other documents, and completion
of such other matters, as Bank may reasonably deem necessary or
appropriate.
9.
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.
[ Balance of
Page Intentionally Left Blank ]
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IN WITNESS WHEREOF, the undersigned
have executed this Amendment as of the first date above
written.
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ARRAY BIOPHARMA, INC.
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By:
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/s/ R. Michael Carruthers
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Title:
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Chief Financial Officer
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COMERICA BANK
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By:
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/s/ Kevin W. Barber
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Title:
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Vice President
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[ Signature Page to Fifth
Amendment to Loan and Security Agreement ]
Prime Referenced Rate Addendum
To
Loan and Security
Agreement
This Prime Referenced Rate Addendum
to Loan and Security Agreement (this “Addendum”) is
entered into as of September 30, 2009, by and between
Comerica Bank (“Bank”) and ARRAY BIOPHARMA, INC.
(“Borrower”). This Addendum supplements the terms
of the Loan and Security Agreement dated June 28, 2005,
as amended from time to time, including by that certain First
Amendment to Loan and Security Agreement dated as of
December 19, 2005, that certain Second Amendment to Loan and
Security Agreement, Consent and Waiver dated as of July 7,
2006, that certain Third Amendment to Loan and Security Agreement
dated as of June 12, 2008, that certain Fourth Amendment to
Loan and Security Agreement dated as of March 11, 2009 and
that certain Fifth Amendment to Loan and Security Agreement dated
as of the date hereof (collectively, the
“Agreement”).
1.
Definitions
. As used in this Addendum,
the following terms shall have the following meanings.
Initially capitalized terms used and not defined in this Addendum
shall have the meanings ascribed thereto in the
Agreement.
a.
“Applicable Margin”
means two and three-quarters percent (2.75%) per annum.
b.
“Business Day” means any
day, other than a Saturday, Sunday or any other day designated as a
holiday under Federal or applicable State statute or regulation, on
which Bank is open for all or substantially all of its domestic and
international business (including dealings in foreign exchange) in
San Jose, California, and, in respect of notices and determinations
relating the Daily Adjusting LIBOR Rate, also a day on which
dealings in dollar deposits are also carried on in the London
interbank market and on which banks are open for business in
London, England.
c.
“Daily Adjusting LIBOR
Rate” means, for any day, a per annum interest rate which is
equal to the quotient of the following:
(1)
for any day, the per annum rate of
interest determined on the basis of the rate for deposits in United
States Dollars for a period equal to one (1) month appearing
on Page BBAM of the Bloomberg Financial Markets Information
Service as of 8:00 a.m. (California time) (or as soon
thereafter as practical) on such day, or if such day is not a
Business Day, on the immediately preceding Business Day. In
the event that
