Exhibit 10.12
SECOND AMENDMENT
TO
LOAN AND SECURITY
AGREEMENT
THIS SECOND
AMENDMENT to Loan and Security Agreement
(this “Amendment”) is entered into this 23
rd
day of March, 2009,
by and between Silicon Valley Bank (“Bank”) and
ARCA biopharma Colorado, Inc. (f/k/a ARCA biopharma, Inc.),
a Delaware corporation (“Borrower”) whose address is
8001 Arista Place, Suite 200, Broomfield, CO 80021.
RECITALS
A. Bank and Borrower have entered into that certain
Loan and Security Agreement dated as of July 17, 2007, as
amended by a First Amendment, dated January 23, 2009 (as the
same may from time to time be further 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 to revise the maturity date of the outstanding GC Line B
Advances.
D. Bank has agreed to so amend certain provisions
of the Loan Agreement, but only to the extent, in accordance with
the terms, subject to the conditions and in reliance upon the
representations and warranties set forth below.
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. Amendment to Loan
Agreement. The definition
of “GC Line B Tranche Two maturity Date” in
Section 13.1 of the Loan Agreement is hereby deleted in its
entirety and replaced with the following:
“ GC Line B Tranche Two
Maturity Date ” is April 6, 2009.
3. Limitation of
Amendment.
3.1 The amendment set forth in Section 2,
above, is effective for the purposes set forth herein and shall be
limited precisely as written and shall not be deemed to (a) be
a consent to any amendment, waiver or modification of any other
term or condition of any Loan Document, or (b) otherwise
prejudice any right or remedy which Bank may now have or may have
in the future under or in connection with any Loan
Document.
3.2 This Amendment shall be construed in connection
with and as part of the Loan Documents and all terms, conditions,
representations, warranties, covenants and agreements set forth in
the Loan Documents, except as herein amended, are hereby ratified
and confirmed and shall remain in full force and effect.
4. Representations and
Warranties. To induce
Bank to enter into this Amendment, Borrower hereby represents and
warrants to Bank as follows:
4.1 Immediately after giving effect to this
Amendment (a) the representations and warranties contained in
the Loan Documents are true, accurate and complete in all material
respects 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 (b) no
Event of Default has occurred and is continuing;
4.2 Borrower has the power and authority to execute
and deliver this Amendment and to perform its obligations under the
Loan Agreement, as amended by this Amendment;
4.3 The organizational documents of Borrower
previously delivered to Bank remain true, accurate and complete and
have not been amended, supplemente
