FIRST AMENDMENT TO FACILITY AGREEMENT
EXHIBIT
10.4
FIRST
AMENDMENT TO FACILITY AGREEMENT
FIRST
AMENDMENT dated as of June 7, 2010 (this “Amendment”), to that
certain Facility Agreement dated as of October 30, 2007 (as amended,
supplemented or otherwise modified from time to time, the “Facility Agreement”),
between Hana Biosciences Inc. (the “Borrower”) and
Deerfield Private Design Fund, L.P. (“Deerfield Private Design
Fund”), Deerfield Special Situation Fund, L.P. (“Deerfield Special Situation
Fund”), Deerfield Special Situations Fund International Limited (“Deerfield
International”) and Deerfield Private Design International, L.P. (“Deerfield Private Design
International” and, together with Deerfield Private Design Fund,
Deerfield Special Situation Fund and Deerfield International, the “Lenders”). Capitalized
terms used but not otherwise defined herein shall have the meanings ascribed to
them in the Facility Agreement.
RECITALS
WHEREAS,
the Borrower and the Lenders have entered into the Facility
Agreement.
WHEREAS,
as a condition precedent to the consummation of an investment by certain parties
in the Borrower, the Borrower has requested certain amendments to the Facility
Agreement;
WHEREAS,
the Lenders are willing, on the terms and subject to the conditions set forth
below, to amend certain provisions of the Facility Agreement.
NOW,
THEREFORE, in consideration of the mutual agreements set forth below, the
Lenders and the Borrower agree as follows:
ARTICLE
I.
AMENDMENTS
TO FACILITY AGREEMENT
SECTION
1.1. General. Effective
on the Amendment Effective Date (as such term is defined in Section 2.1), the
Facility Agreement is hereby modified in accordance with this Article
I.
SECTION
1.2. Amendments to Section
1.1.
(a) The
following new definitions are hereby added to Section 1.1 of the Facility
Agreement in their appropriate alphabetical order:
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“Deerfield/WP
Investment” means the investment contemplated by the Investment
Agreement and any related
transactions.
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“Indebtedness”
of any person shall mean (a) all obligations of such person for borrowed
money, (b) all obligations of such person evidenced by bonds, debentures,
notes or similar instruments to the extent the same would appear as a
liability on a balance sheet prepared in accordance with GAAP, (c) all
guarantees by such person of Indebtedness of others and (d) all capital
lease obligations of such person, provided,
however, that in no event shall Indebtedness include the Deerfield/WP
Investment, including, without limitation, the terms of the Securities (as
defined in the Investment
Agreement).
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“Investment Agreement”
means that certain Investment Agreement dated as of June 7, 2010 among the
Borrower, Warburg Pincus Private Equity X, L.P., Warburg Pincus X Partners, L.P.
and Deerfield Private Design Fund, L.P., Deerfield Private Design International,
L.P., Deerfield Special Situation Fund, L.P., and Deerfield Special Situations
Fund International Limited and any ancillary agreement, certificate or other
document delivered in connection therewith.
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“Permitted Affiliate
Transactions” means (a) transactions upon terms no less favorable
to the Borrower than would be obtained in a comparable arm’s-length
transaction with a person that is not an Affiliate, as determined in good
faith by the Borrower and (b) the
following:
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(i)
any issuance of securities, or other payments, awards or grants in cash,
securities or otherwise pursuant to, or the funding of, employment arrangements,
stock options and stock ownership plans approved by the board of
directors,
(ii)
loans or advances to employees or consultants of the Borrower in the ordinary
course of business,
(iii)
the payment of fees and indemnities to directors, officers, consultants and
employees of the Borrower in the ordinary course of business,
(iv)
transactions pursuant the Investment Agreement or any amendment thereto to the
extent such amendment does not adversely affect the Borrower’s ability to comply
with its obligations under the Facility Agreement in any material
respect,
(v)(A)any
employment agreements entered into by the Borrower in the ordinary course of
business, (B) any subscription agreement or similar agreement pertaining to the
repurchase of equity interests pursuant to put/call rights or similar rights
with employees, officers or directors, and (C) any employee compensation,
benefit plan or arrangement, any health, disability or similar insurance plan
which covers employees, and any reasonable employment contract and transactions
pursuant thereto and
(vi)
dividends, redemptions and repurchases pursuant to the terms of the Securities
(as defined in the Investment Agreement).
(b) The
definition of “Final
Payment Date” set forth in Section 1.1. of the Facility Agreement is
hereby amended in its entirety to read as follows:
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““Final
Payment Date”
means the earlier of (i) the date on which the Borrower repays the
outstanding principal amount of the Loan (together with any other amounts
accrued and unpaid under this Agreement) to the lenders pursuant to this
Agreement and (ii) June 30,
2015.”
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(c) The
definition of “Permitted
Indebtedness” set forth in Section 1.1 of the Facility Agreement is
hereby amended in its entirety to read as follows:
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““Permitted
Indebtedness”
means (i) Indebtedness of Borrower in favor of Lenders arising under this
Agreement or any other financial document; (ii) Indebtedness existing as
of October 30, 2007 (which the Borrower represents to not be in excess of
$250,000), (iii) Indebtedness of trade creditors incurred in the ordinary
course of business; (iv) capital lease and purchase money Indebtedness
incurred prior to or within 270 days after the acquisition, lease or
improvement of the asset in order to finance such acquisition or
improvement, in an aggregate principal amount not to exceed $3,000,000 at
any time outstanding; (v) Subordinated Debt; and (vi) extensions,
refinancings and renewals of any items of Permitted Indebtedness, provided
that the principal amounts (plus unpaid accrued interest and premium
thereon and underwriting discounts, fees, commissions and expenses) are
not increased or the terms modified to impose more burdensome terms upon
the Borrower.”
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(d) The
definition of “Permitted Liens” set
forth in Section 1.1 of the Facility Agreement is hereby amended in its entirety
to read as follows:
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““Permitted
Liens” means (i) Liens existing on October 30, 2007 and disclosed
on Exhibit D hereof; (ii) Liens in favor of the Lenders; (iii) statutory
Liens created by operation of applicable law; (iv) Liens arising in the
ordinary course of business and securing obligations that are not overdue
or are being contested in good faith by appropriate proceedings; (v) Liens
securing purchase money or capitalized lease financing permitted pursuant
to clause (iv) of the definition of Permitted Indebtedness and (vi) Liens
for Taxes not yet due and payable or that are being contested in good
faith by appropriate proceedings.”
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SECTION
1.3. Amendments to Section
5.1.
(a) Existing
clause (c) of Section 5.1 of the Facility Agreement is hereby amended in its
entirety to read as follows:
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“(c) The
Borrower shall obtain, make and keep in full force and effect all
licenses, contracts, consents, approvals and authorizations from and
registrations with Government Authorities that may be required to conduct
its business, except where the failure to so do could not, individually or
in the aggregate, reasonably be expected to have a Material Adverse
Effect.”
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(b) Existing
clause (e) of Section 5.1 of the Facility Agreement is hereby amended in its
entirety to read as follows:
“(e) [Intentionally
Omitted].”
(c) Subclause
(i) contained in existing clause (g) of Section 5.1 of the Facility Agreement is
hereby amended in its entirety to read as follows:
“(i)
the Borrower will provide copies of all annual reports, quarterly reports and
other periodic reports pursuant to Section 13 or 15(d) of the Exchange Act
prepared by the Borrower and filed with the SEC as soon as available (provided
that, to the extent such reports are available publicly on XXXXX or any
successor website, such reports shall be deemed provided);”
SECTION
1.4. Amendments to Section
5.2.
(a) Subclause
(ii) contained in existing clause (a) of Section 5.2 of the Facility Agreement
is hereby amended by deleting the proviso thereto and inserting, in lieu
thereof, the following:
“provided,
however, that the Borrower may enter into any collaborative arrangements,
licensing agreement, joint venture or partnership providing for the development
or commercial exploitation of the technology or products of the Borrower whereby
its income or profits are or might be shared with any other
Person.”
(b) Subclause
(iii) contained in existing clause (b) of Section 5.2 of the Facility Agreement
is hereby amended in its entirety to read as follows:
“(iii)
engage in any transaction with an Affiliate that would be reportable under Item
404 of Regulation S-K promulgated by the SEC, except Permitted Affiliate
Transactions.”
(c) Subclause
(iv) contained in existing clause (b) of Section 5.2 of the Facility Agreement
is hereby amended by deleting the proviso thereto and inserting, in lieu
thereof, the following:
“provided,
however, that the Borrower may enter into any collaborative arrangements,
licensing agreement, joint venture or partnership providing for the development
or commercial exploitation of the technology or products of the Borrower whereby
its income or profits are or might be shared with any other
Person.”
SECTION
1.5. Amendment to Section
6.1(b). Section 6.1(b) of the Facility Agreement is hereby
amended in its entirety to read as follows:
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“(b) The
Borrower shall have defaulted or failed to comply in any material respect
with the due observance or performance of any covenant contained in this
Agreement or any Note and such default or failure to comply shall not have
been cured by the Borrower within 30 days after receiving written notice
of such default.”
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ARTICLE
II.
CONDITIONS
TO EFFECTIVENESS
SECTION
2.1. Conditions. This
Amendment shall be and become effective as of the date hereof (the “Amendment
Effective Date”) when the Lenders shall have received a
counterpart of this Amendment, duly executed by and delivered on behalf of the
Borrower.
ARTICLE
III.
REPRESENTATIONS
AND WARRANTIES
SECTION
3.1. Representations and
Warranties. In order to induce the Lenders to enter into this
Amendment, the Borrower hereby represents and warrants to each Lender, as of the
Amendment Effective Date, as follows:
(a) No
Default or Event of Default has occurred and is continuing.
(b) This
Amendment has been duly authorized, executed and delivered by the Borrower and
constitutes the legal, valid and binding obligation of the Borrower enforceable
against it in accordance with its terms, except to the extent that the
enforceability thereof may be limited by applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization or other similar laws generally affecting
creditors’ rights and by equitable principles (regardless of whether enforcement
is sought in equity or at law).
(c) The
representations and warranties contained in the Facility Agreement and in the
other Financing Documents are true and correct in all material respects as
though made on the Amendment Effective Date (it being understood and agreed that
any representation or warranty which by its terms is made as of a specified date
shall be required to be true and correct in all material respects only as of
such specified date).
ARTICLE
IV.
MISCELLANEOUS
SECTION
4.1. Consent to
Investment. For the avoidance of doubt, the Lenders hereby
consent to the Deerfield/WP Investment and any related transactions and
expressly acknowledge that the Deerfield/WP Investment does not constitute a
violation of or a Default or Event of Default under the Facility Agreement or
any Financing Document.
SECTION
4.2. Full
Force and Effect; Limited Amendments. Except as expressly
modified hereby, all of the representations, warranties, terms, covenants,
conditions and other provisions of the Facility Agreement and the other
Financing Documents shall remain unamended and unwaived and shall continue to
be, and shall remain, in full force and effect in accordance with their
respective terms. The amendments set forth herein shall be limited
precisely as provided for herein to the provisions expressly amended herein and
shall not be deemed to be an amendment to, consent to, waiver of or modification
of any other term or provision of the Facility Agreement or any other Financing
Document or of any transaction or further or future action which would require
the consent of the Lenders under the Facility Agreement.
SECTION
4.3. Financing Document Pursuant
to Facility Agreement. This Amendment is executed pursuant to
the Facility Agreement and shall be construed, administered and applied in
accordance with all of the terms and provisions of the Facility Agreement and
shall constitute a Financing Document. Any breach of any
representation or warranty or covenant or agreement contained in this Amendment
shall be deemed to be an Event of Default for all purposes of the Facility
Agreement.
SECTION
4.4. Headings. The
various headings of this Amendment are inserted for convenience only and shall
not affect the meaning or interpretation of this Amendment or any provisions
hereof.
SECTION
4.5. Execution in
Counterparts. This Amendment may be executed by the parties
hereto in several counterparts, each of which shall be deemed to be an original
and all of which shall constitute together but one and the same
agreement.
SECTION
4.6. Cross-References. References
in this Amendment to any Article or Section are, unless otherwise specified or
otherwise required by the context, to such Article or Section of this
Amendment.
SECTION
4.7. Successors and
Assigns. This Amendment shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and
assigns.
SECTION
4.8. Severability. Any
provision of this Amendment held to be invalid, illegal, ineffective or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such invalidity, illegality, ineffectiveness or
unenforceability without affecting the validity, legality, effectiveness and
enforceability of the remaining provisions hereof; and the invalidity of a
particular provision in a particular jurisdiction shall not invalidate such
provision in any other jurisdiction.
SECTION
4.9. GOVERNING
LAW. THIS
AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE
GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF THAT
WOULD REQUIRE APPLICATION OF LAWS OF ANOTHER STATE.
[Signature
Pages Follow]
IN
WITNESS WHEREOF, the parties hereto have caused their duly authorized officers
to execute and deliver this Amendment as of the date first above
written.
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HANA
BIOSCIENCES, INC.
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By:
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/s/ Xxxxxx X. Xxxxxxxx
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Name:
Xxxxxx X. Xxxxxxxx
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Title:
President & CEO
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[Signature
Page to Amendment to Facility Agreement]
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DEERFIELD
PRIVATE DESIGN FUND, L.P.
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By:
Deerfield Capital, L.P., its General Partner
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By:
X.X. Xxxxx Capital, LLC, its General Partner
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By:
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/s/ Xxxxx X. Xxxxx
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Name: Xxxxx
X. Xxxxx
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Title:
President
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DEERFIELD
SPECIAL SITUATION FUND, L.P.
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By: Deerfield
Capital, L.P., its General Partner
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By: X.X.
Xxxxx Capital, LLC, its General
Partner
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By:
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/s/ Xxxxx X. Xxxxx
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Name:
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Xxxxx
X. Xxxxx
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Title:
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President
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DEERFIELD
SPECIAL SITUATIONS FUND INTERNATIONAL LIMITED
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By:
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/s/ Xxxxx X. Xxxxx
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Name: Xxxxx
X. Xxxxx
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Title:
Director
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DEERFIELD
PRIVATE DESIGN INTERNATIONAL, L.P.
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By: Deerfield
Capital, L.P., its General Partner
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By:
X.X. Xxxxx Capital, LLC, its General Partner
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By:
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/s/ Xxxxx X. Xxxxx
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Name: Xxxxx
X. Xxxxx
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Title:
Director
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[Signature
Page to Amendment to Facility Agreement]
