Exhibit 10.72
General Electric Capital
Corporation
Life Science Finance
83 Wooster Heights Road, Fifth Floor
Danbury, Connecticut 06810
September 30, 2008
Anesiva, Inc.
650 Gateway Boulevard
South San Francisco, CA 94080
Ladies and Gentlemen:
Reference is made to (i) the
Equipment Loan and Security Agreement, dated as of August 30,
2007 (as amended, restated, supplemented or otherwise modified to
date, the “ Loan Agreement ”; all undefined
capitalized terms used herein but not defined herein shall have the
meanings given to such terms in the Loan Agreement), between
Anesiva, Inc., a Delaware corporation (the “ Borrower
”) and General Electric Capital Corporation, a Delaware
corporation (“ Existing Lender ”), and
(ii) the other Debt Documents and all guaranties, security
agreements, mortgages, subordination agreements, intercreditor
agreements, pledge agreements, blocked account agreements, notes
and other documents and instruments relating thereto (together with
the Loan Agreement, collectively, the “ Credit
Documents ”). Existing Lender understands that on the
Payoff Effective Time (as defined below), the Borrower will repay
in full all Obligations in connection with the Credit Documents.
Notwithstanding any provision in this letter agreement (this
“ Agreement ”) to the contrary, any warrants to
purchase any equity interests of Borrower issued by Borrower to
Existing Lender or any of its affiliates (each of the foregoing, a
“ Warrant ” and, collectively, the “
Warrants ”) and any documents relating to any Warrant
or equity interests governed or to be governed by the Warrants
(including, but not limited to, any investor rights agreements,
voting agreements and shareholder agreements) or any other rights
to acquire an equity position in Borrower (the “ Warrant
Documents ”) shall be excluded from the definition of
“Credit Documents” and each of the Warrants and Warrant
Documents shall expressly survive the payoff of the Payoff Amount
(as defined below) and shall not be affected by this
Agreement.
Upon Existing Lender’s receipt
of (a) a federal funds wire transfer in the amount of
$10,717,968.64, subject to per diem adjustment as set forth on
Schedule A attached hereto (the “ Payoff Amount
”), which amount represents all Obligations as more fully
described on Schedule A attached hereto, and (b) a fully
executed counterpart of this Agreement signed by the Borrower (the
time at which all of the conditions in the foregoing clauses
(a) and (b) shall first be satisfied is herein referred
to as the “ Payoff Effective Time ”), Existing
Lender agrees and acknowledges that: (i) all outstanding
Obligations shall be paid and satisfied in full and discharged,
terminated and released, other than those obligations therein that
expressly survive termination, (ii) all security
interests and other liens granted to or held by
Existing Lender in any assets and properties of the Borrower and
Corgentech, Inc., as security for the Obligations (the “
Collateral ”) shall be satisfied, released and
discharged, without recourse, representation, warranty or other
assurance of any kind, (iii) the Credit Documents shall
terminate and be of no further force or effect other than those
provisions therein that expressly survive termination and
(iv) the Borrower shall be automatically authorized to file
the UCC termination statements attached hereto as Exhibit A
evidencing the release of Existing Lender’s security
interests and other liens in the Collateral.
Further, Existing Lender agrees to
take all reasonable additional steps reasonably requested by the
Borrower as may be necessary to release its security interests in
the Collateral. The Borrower agrees to pay Existing Lender for all
costs and expenses incurred by Existing Lender in connection with
the matters referred to in the previous sentence, and acknowledges
that Existing Lender’s execution of and/or delivery of any
documents releasing any security interest or claim in any property
of the Borrower as set forth herein is made without recourse,
representation, warranty or other assurance of any kind by Existing
Lender as to Existing Lender’s rights in any collateral
security for amounts owing under the Credit Documents, the
condition or value of any Collateral, or any other matter. The
Borrower hereby confirms that the commitments, if any, of Existing
Lender to make any advances and any other extensions of credit
under
