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Exhibit
10.66
FIRST
AMENDMENT
TO
EQUIPMENT LOAN AND
SECURITY AGREEMENT AND WAIVER
THIS FIRST AMENDMENT TO
EQUIPMENT LOAN AND SECURITY AGREEMENT AND WAIVER (this “
Amendment ”), is made and entered into as of
June 24, 2008 (the “ Execution Date ”), and
is made effective as of May 31, 2008, between ANESIVA,
INC. , a Delaware corporation (“ Borrower ”)
and GENERAL ELECTRIC CAPITAL CORPORATION , a Delaware
corporation (“ Lender ”), as Lender.
W I T
N E S S E T H
:
WHEREAS , the Borrower
and Lender are parties to that certain Equipment Loan and Security
Agreement, dated as of August 30, 2007 (as amended, restated,
supplemented or otherwise modified from time to time, the “
Loan Agreement ”; capitalized terms used herein and
not otherwise defined herein shall have the meanings given such
terms in the Loan Agreement), pursuant to which Lender committed to
make certain loans to Borrower upon the terms and conditions set
forth therein; and
WHEREAS , as of the
date hereof, a Default and Event of Default exist due to the
failure on the part of the Borrower to comply with
Section 2.7(b) of the Loan Agreement as a result of
Borrower’s failure to pay the Unused Facility Fee due on
May 31, 2008 (the “ Specified Default ”);
and
WHEREAS , Borrower has
requested that Lender waive its rights with respect to the
Specified Default and Lender is willing to grant such waiver solely
in accordance with and subject to the terms and conditions of this
Amendment; and
WHEREAS , Borrower and
Lender desire to modify the Loan Agreement in accordance with and
subject to the terms and conditions set forth herein.
NOW , THEREFORE
, in consideration of the premises, the covenants and agreements
contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Borrower
and Lender do hereby agree as follows:
1. Acknowledgments And
Agreements
(a) Acknowledgment of
Obligations . Borrower hereby acknowledges, confirms and agrees
that as of the close of business on June 17, 2008, Borrower is
indebted to Lender in respect of the Credit Extensions in the
aggregate principal amount of $10,920,263.67. All such Credit
Extensions and any other Obligations, together with interest
accrued and accruing thereon, and fees, costs, expenses and other
charges now or hereafter payable by Borrower to Lender, is
unconditionally owing by Borrower to Lender, without offset,
defense or counterclaim of any kind, nature or description
whatsoever.
(b) Acknowledgment of
Default . Borrower hereby acknowledges and agrees that the
Specified Default has occurred and, prior to the effectiveness of
this Amendment, is continuing and constitutes an Event of Default
which entitles the Lender to exercise its rights and remedies under
the Debt Documents, applicable law or otherwise. Borrower hereby
acknowledges and agrees that the Lender has the presently
exercisable right to cease funding and declare the Obligations to
be immediately due and payable under the terms of the Debt
Documents.
(c) Acknowledgment of
Lender . Lender hereby acknowledges and agrees that, as of the
Execution Date, Lender has not declared any or all of the
Obligations to be immediately due and payable under the terms of
the Debt Documents as a result of the Specified Default.
2. Waiver Of Specified
Default
(a) Waiver . In
reliance upon the representations, warranties and covenants of the
Borrower contained in this Amendment, and subject to the terms and
conditions of this Amendment and any documents or instruments
executed or delivered in connection herewith, the Lender hereby
waives the Specified Default; provided that the
Borrower shall remain obligated to make such deliveries and
otherwise comply with the new delivery deadline provided in
Sections 3 and 4 of this Amendment with respect to
payment of the Unused Facility Fee.
(b) No Other Waivers;
Reservation of Rights .
(i) The Lender has not
waived, nor is this Amendment waiving, (i) any Default or
Event of Default which may be continuing on the date hereof (other
than the Specified Default to the extent expressly set forth
herein) or (ii) any Default or Event of Default which may
hereafter arise (whether the same as or similar to the Specified
Default or otherwise).
(ii) The Lender reserves the
right, in its discretion, to exercise any or all of its rights and
remedies under the Loan Agreement and the other Debt Documents as a
result of any Default or Event of Default (other than the Specified
Default to the extent expressly set forth herein) which may be
continuing on the date hereof or any Default or Event of Default
(other than the Specified Default to the extent expressly set forth
herein) which may occur after the date hereof, and nothing in this
Amendment, and no delay on the part of the Lender in exercising any
such right or remedy, shall be construed as a waiver of any such
right or remedy.
3. Amendments to the
Loan Agreement . Subject to the terms and conditions of
this Amendment, the Loan Agreement is hereby amended as
follows:
(a) Section 2.2
of the Loan Agreement is amended by deleting the reference to
“May 31, 2008” in clause (b) thereof and replacing
it with “September 30, 2008.”
(b) Section 2.7
of the Loan Agreement is hereby amended by deleting clause
(b) thereof in its entirety and replacing it with the
following:
-2-
“(b) ‘ Unused
Facility Fee ’. Borrower shall pay to Lender (i) the
May 31 Unused Facility Fee (as such term is defined in that
certain First Amendment to Equipment Loan and Security Agreement
and Waiver, dated as of June 24, 2008, between Borrower and
Lender (the “ First Amendment ”)) on the
Execution Date of and as defined in the First Amendment (the
“ First Amendment Execution Date ”) and
(ii) promptly, but in any event no later than
September 30, 2008, an amount equal to 0.4% of the difference,
if any, between the Total Credit Extension Amount and the aggregate
original principal amount of the Notes.”
(c) Article 2 of the
Loan Agreement is hereby amended by deleting
Section 2.9 thereof in its entirety and replacing it
with the following:
“Section 2.9
Interest Rate . The interest rate of each Credit Extension
evidenced by a Note shall be fixed at a rate equal to (a) for
all Credit Extensions made prior to the First Amendment Execution
Date, the sum of (i) the greater of (A) the Treasury Rate
(as defined below) or (B) 4.58% plus (ii) 5.33% per
annum or (b) for all Credit Extensions on or after the First
Amendment Execution Date, the sum of (i) the greater of
(A) the Treasury Rate (as defined below) or (B) 2.70%
plus (ii) 7.85% per annum, in each case, which rate shall
be set forth in the Note as the “Contract Rate” under
that Note. Interest shall be paid in accordance with the terms and
conditions of the Note. As used herein, the term “Treasury
Rate” means a per annum rate of interest equal to the rate
published by the Board of Governors of the Federal Reserve System
in Federal Reserve Statistical Release H.15 entitled “Select
Interest Rates” under the heading “U.S. Government
Securities/Treasury Constant Maturities” for the three year
treasuries constant maturities rate in effect as of three
(3) Business Days prior to the funding of each Credit
Extension, including the initial Credit Extension, as determined by
Lender. In the event Release H.15 is no longer published, Lender
shall select a comparable publication to determine the U.S.
Treasury note yield to maturity.”
4. Additional
Agreements and Covenants .
(a) Borrower acknowledges and
agrees that prior to giving effect to this Amendment, the Unused
Facility Fee as of May 31, 2008 was $14,404.00 (the “
May 31 Unused Facility Fee ”). Notwithstanding
anything in this Amendment
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