EXHIBIT 10.34
[*] = CERTAIN CONFIDENTIAL
INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS
BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF
1934, AS AMENDED.
FIRST AMENDMENT
AND WAIVER TO CREDIT
AGREEMENT
This FIRST AMENDMENT AND WAIVER TO
CREDIT AGREEMENT (this “Amendment”) is made and entered
into as of December 29, 2008, by and among WELLS FARGO BANK,
NATIONAL ASSOCIATION (herein called “Bank”) and CERUS
CORPORATION, a Delaware corporation (“Borrower”), with
reference to the following facts and intentions of the
parties:
RECITALS
A. Borrower is currently indebted to
Bank pursuant to the terms and conditions of that certain Credit
Agreement between Borrower and Bank dated as of June 18, 2008,
as such may have been amended or modified from time to time (the
“Loan Agreement”). In connection with the Loan
Agreement, Bank provided Borrower a line of credit in the maximum
principal amount of Ten Million and No/100 Dollars ($10,000,000.00)
(the “Line of Credit”) which is evidenced by that
certain revolving line promissory note executed by Borrower in
favor of Bank in the amount of the Line of Credit and dated as of
June 18, 2008 (the “Line of Credit Note”). The
Line of Credit will mature and become due and payable in full on
June 17, 2009. The Line of Credit shall be referred to herein
as the “Loan.” The Line of Credit Note shall be
referred to herein as the “Note.”
B. For purposes hereof, the term
“Obligations” shall mean the Loan, and all other loans,
advances, debts, liabilities and obligations, tasks or duties for
the performance of covenants or for payment of monetary amounts
(whether or not such performance is then required or contingent, or
such amounts are liquidated or determinable) owing by Borrower to
Bank, and all covenants and duties regarding such amounts, of any
kind or nature, present or future, whether or not evidenced by any
note, agreement or other instrument, arising under the Loan
Agreement or any of the other Loan Documents (as defined herein).
The term Obligation includes but is not limited to all principal,
interest (including all interest which accrues after the
commencement of any case or proceeding in bankruptcy, whether or
not allowed in such case or proceeding), fees, charges, expenses,
attorneys’ fees and any other sum chargeable to Borrower
under the Loan Agreement or any of the other Loan
Documents.
C. The Obligations are secured by,
among other things, a security interest granted by Borrower to Bank
in all of Borrower’s personal property, including, without
limitation, accounts, deposit accounts, accounts receivable,
chattel paper, instruments, documents, securities, investment
property, general intangibles, equipment, inventory and other
rights to payment (collectively, the “Collateral”)
pursuant to, among other things, that certain Security Agreement
dated June 18, 2008 (the “Security
Agreement).
D. This Amendment, the Loan
Agreement, the Note, the Security Agreement and any and any of all
other documents or instruments executed in connection with or
otherwise related to the Loan are all hereinafter collectively
called the “Loan Documents.” Capitalized terms used
herein without definition shall have the meanings ascribed to them
in the Loan Documents.
E. Borrower is in default under the
Loan Documents due to Borrower’s violation of
Section 4.9(a) of the Loan Agreement occurring on
October 31, 2008 (the “ Existing Default
”).
F. Borrower acknowledges that
Borrower is in default under the Loan Documents as a consequence of
the Existing Default; that such Existing Default in not subject to
being cured, and has not been waived or excused by Bank at any time
or in any manner; and that there are no claims, demands, offsets or
defenses at law or in equity that would defeat or diminish
Bank’s present and unconditional right to collect any of the
Obligations, and to proceed to enforce the rights and remedies
available to Bank as provided in any of the Loan Documents or
otherwise at law.
G. Borrower has requested that Bank
waive the Existing Default and amend the Loan Agreement and amend
and restate the Line of Credit Note, as set forth
herein.
H. In response to Borrower’s
request, and in reliance upon Borrower’s representations made
to Bank in support thereof and the other terms and conditions of
this Amendment, Bank is willing to waive the Existing Default and
amend the Loan Agreement as set forth herein, upon and subject to
the terms and conditions hereof, all as more particularly set forth
and described in this Amendment.
AGREEMENT
NOW, THEREFORE
, Bank and Borrower hereby agree as
follows:
1. Adoption of Recitals
. The recitals set forth above are adopted as a part of the
agreement of the parties, and the facts set forth therein are
acknowledged and agreed to be true, accurate and
complete.
2. Amendments to Loan
Agreement.
2.1 Section 1.1 of the Loan
Agreement is hereby amended by adding the following defined term in
appropriate alphabetical order:
“Cash Burn Amount” means
the least of: (1) Borrower’s consolidated net operating
income (loss), determined in accordance with GAAP for the most
recently ended fiscal quarter, (B) Borrower’s
consolidated net income (loss), determined in accordance with GAAP,
for the most recently ended fiscal quarter, and (C) Zero
Dollars ($0.00). Borrower’s consolidated net operating (loss)
and consolidated net (loss) shall be: (a) determined without
taking into account a one-time, non-cash charge up to a maximum of
not more than [ * ] with respect to Borrower’s investment in
[ * ], and (b) for avoidance of doubt, deemed to be, and
expressed as, negative numbers ( i.e. less than $0.00) for
purposes of this Agreement.
[*] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24b-2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
2.2 Section 3.2 of the Loan
Agreement is hereby amended by inserting a new Section 3.2(c)
to read as follows:
(c) As of the on the date that any
such extension of credit is requested and the proposed date that
such extension of credit is to be made, Borrower shall have
Liquidity in an amount not less than the sum of (i) the
aggregate amount of outstanding Obligations of Borrower and its
consolidated Subsidiaries on such date (calculated on both a
current and pro forma basis after giving effect to the
requested extension of credit), plus (ii) an amount
equal to the product of (A) [ * ] the Cash Burn Amount at such
date, and Borrower shall have delivered to Bank, not less than five
(5) days prior to the proposed date on which such extension of
credit is to be made, a Compliance Certificate of the
Borrower’s president or chief financial officer certifying
that Borrower has complied with the requirements of this condition
and showing in reasonable detail the calculations used in
determining compliance.
2.3 Section 4.3(b) of the Loan
Agreement is hereby amended and restated in its entirety to read as
follows:
(b)(1) as soon as available, but no
later than the earlier of (A) five (5) days after filing
with the Securities Exchange Commission or (B) fifty
(50) days after the end of each fiscal quarter of Borrower,
the Borrower’s consolidated and consolidating financial
statements (to include a balance sheet, income statement, statement
of cash flows) prepared in accordance with GAAP consistently
applied (other than being subject to normal year-end adjustments)
and Form 10-Q; and
(2) as soon as available, but no
later than 30 days after the end of each month (including a month
coinciding with the end of a fiscal quarter), the Borrower’s
consolidated and consolidating financial statements for such month
(to include a balance sheet, income statement, statement of cash
flows) prepared in accordance with GAAP consistently applied (other
than being subject to normal year-end adjustments);
2.4 Section 4.3(f) of the Loan
Agreement is hereby amended and restated in its entirety to read as
follows:
(f) not later than 30 days after and
as of the end of each month, a compliance certificate of the
president or chief financial officer of Borrower, in the form of
Exhibit B or such other form as may be satisfactory to Bank
(a “Compliance Certificate”), certifying that, among
other things: (i) the most recently delivered annual,
quarterly and monthly financial statements delivered to Bank are
complete and correct and fairly present the financial condition of
Borrower as of the dates reflected therein and the results of
operations for the periods presented; (ii) that the
representations and warranties contained herein and in the other
Loan Documents remain true and correct in all material respects as
of such date (except for those representations and warranties, if
any, expressly referring to a specific date which shall remain
true, accurate and complete in all material respects as of such
date); (iii) Borrower, and each of its Subsidiaries, has
timely filed all required tax returns and reports, and Borrower has
timely paid all foreign, federal, state and local taxes,
assessments, deposits and contributions owed by Borrower except as
otherwise permitted pursuant to the terms of this Agreement;
(iv) no Liens have been levied or claims made against Borrower
or any
[*] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24b-2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
of its Subsidiaries relating to
unpaid employee payroll or benefits of which Borrower has not
previously provided written notification to Bank; (v) Borrower
is in complete compliance with the financial covenants and ratios
set forth herein (together with all supporting documentation
showing in reasonable detail the calculations used in determining
such compliance); and (vi) there exists no Event of Default
nor any condition, act or event which with the giving of notice or
the passage of time or both would constitute an Event of
Default;
2.5 Section 4.9 of the Loan
Agreement is hereby amended and restated in its entirety to read as
follows:
SECTION 4.9 FINANCIAL CONDITION.
Maintain Borrower’s consolidated financial condition as
follows, using GAAP consistently applied and used consistently with
prior practices (except to the extent modified by the definitions
herein), with compliance determined commencing with
Borrower’s financial statements for the period ending
June 30, 2008 or based on any other information available to
Bank:
(a) At all times while any
Obligations are outstanding and on the date each advance is
requested or funded, Liquidity in an amount not less than the sum
of (i) the aggregate amount of outstanding Obligations of
Borrower and its consolidated Subsidiaries on such date,
plus (ii) an amount equal to the product of (A) [
* ] the Cash Burn Amount at such date.
(b) At all times, a balance of
domestic unrestricted cash and domestic unrestricted marketable
securities, in one or more accounts maintained with Bank as to
which Bank has a perfected first priority Lien, of not less than [
* ] Dollars [ * ].
(c) As of the last day of each
fiscal quarter for the quarter then ended, a consolidated net
operating (loss), expressed as a positive number, as determined in
accordance with GAAP, of not more than: (i) [ *
