EXHIBIT 10.33
LOAN MODIFICATION AGREEMENT
This Loan Modification Agreement is entered into as of June 10, 2002, by and
between Intrabiotics Pharmaceuticals, Inc. (the "Borrower") and Silicon Valley
Bank ("Bank").
1. DESCRIPTION OF EXISTING OBLIGATIONS: Among other Obligations which may be
owing by Borrower to Bank, Borrower is indebted to Bank pursuant to, among other
documents, an Amended and Restated Loan and Security Agreement, dated August 20,
2001, as may be amended from time to time, (the "Loan Agreement"). The Loan
Agreement provides for, among other things, a Committed Revolving Line in the
original principal amount of Two Million Five Hundred Thousand Dollars
($2,500,000) and a Term Loan in the original principal amount of Seven Million
Five Hundred Thousand Dollars ($7,500,000). Defined terms used but not otherwise
defined herein shall have the same meanings as set forth in the Loan Agreement.
Hereinafter, all indebtedness owing by Borrower to Bank shall be referred to as
the "Obligations."
2. DESCRIPTION OF COLLATERAL. Repayment of the Obligations is secured by the
Collateral as described in the Loan Agreement and in an Intellectual Property
Security Agreement dated August 20, 2001.
Hereinafter, the above-described security documents and guaranties, together
with all other documents securing repayment of the Obligations shall be referred
to as the "Security Documents". Hereinafter, the Security Documents, together
with all other documents evidencing or securing the Obligations shall be
referred to as the "Existing Loan Documents".
3. DESCRIPTION OF CHANGE IN TERMS.
A. Modification(s) to Loan Agreement.
1. Section 2.1.1 entitled "Revolving Advances" is amended in
part to provide that the final payment for the Amortizing
Term Loan due on the 36th month following the date of
amortization, however no later than October 31, 2005 (the
"Amortizing Term Loan Maturity Date"), shall be for all
outstanding principal plus all accrued unpaid interest.
2. Section 6.8 entitled "Performance Covenant" is hereby
amended to read as follows:
Borrower will submit to Bank on or prior to October 15,
2002 evidence of its satisfactory completion from the
phase III clinical trial evaluating the safety and
efficacy of iseganan HCI oral solution in patients
receiving aggressive chemotherapy.
3. The following defined term under Section 13.1 entitled
"Definitions" is amended to read as follows:
"Revolving Maturity Date" is the earlier of (i) October
31, 2002 or (ii) Borrower's election to convert the
outstanding Advances into an Amortizing Term Loan,
(subject to the terms and conditions herein) at which time
the Amortizing Term Loan Maturity Date shall be effective.
B. Waiver of Covenant Default(s).
Bank hereby waives Borrower's existing default under the Loan
Agreement by virtue of Borrower's failure to receive evidence of
satisfactory results from its clinical trial, under
the Performance covenant, by May 10, 2002. Bank's waiver of
Borrower's compliance of this covenant shall apply only to the
foregoing period. Accordingly, by October 15, 2002, Borrower
shall be in compliance with this covenant as amended herein.
Bank's agreement to waive the above-described default (1) in no
way shall be deemed an agreement by the Bank to waive Borrower's
compliance with the above-described covenant as of all other
dates and (2) shall not limit or impair the Bank's right to
demand strict performance of this covenant as of all other dates
and (3) shall not limit or impair the Bank's right to demand
strict performance of all other covenants as of any date.
4. CONSISTENT CHANGES. The Existing Loan Documents are hereby amended wherever
necessary to reflect the changes described above.
5. NO DEFENSES OF BORROWER. Borrower (and each guarantor and pledgor signing
below) agrees that, as of the date hereof, it has no defenses against paying any
of the Obligations.
6. PAYMENT OF LOAN FEE. Borrower shall pay Bank a fee in the amount of One
Thousand Five Hundred and 00/100 Dollars ($1,500.00) ("Loan Fee") plus all
out-of-pocket expenses.
7. CONTINUING VALIDITY. Borrower (and each guarantor and pledgor signing below)
understands and agrees that in modifying the existing Indebtedness, Bank is
relying upon Borrower's representations, warranties, and agreements, as set
forth in the Existing Loan Documents. Except as expressly modified pursuant to
this Loan Modification Agreement, the terms of the Existing Loan Documents
remain unchanged and in full force and effect. Bank's agreement to modifications
to the existing Obligations pursuant to this Loan Modification Agreement in no
way shall obligate Bank to make any future modifications to the Obligations.
Nothing in this Loan Modification Agreement shall constitute a satisfaction of
the Obligations. It is the intention of Bank and Borrower to retain as liable
parties all makers and endorsers of Existing Loan Documents, unless the party is
expressly released by Bank in writing. Unless expressly released herein, no
maker, endorser, or guarantor will be released by virtue of this Loan
Modification Agreement. The terms of this paragraph apply not only to this Loan
Modification Agreement, but also to all subsequent loan modification agreements.
8. CONDITIONS. The effectiveness of this Loan Modification Agreement is
conditioned upon payment of the Loan Fee.
This Loan Modification Agreement is executed as of the date first
written above.
BORROWER: BANK:
INTRABIOTICS PHARMACEUTICALS, INC. SILICON VALLEY BANK
By: /s/ Xxxx Xxxxxxxxx By: /s/ Xxxxxx Xxxxxxx
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Name: Xxxx Xxxxxxxxx Name: Xxxxxx Xxxxxxx
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Title: CFO Title: V.P.
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[SILICON VALLEY BANK LOGO]
SILICON VALLEY BANK
PRO FORMA INVOICE FOR LOAN CHARGES
BORROWER: INTRABIOTICS PHARMACEUTICALS, INC.
LOAN OFFICER: XXX XXXXXXX
DATE: JUNE 10, 2002
LOAN FEE $1,500.00
DOCUMENTATION FEE $ 250.00
TOTAL FEE DUE $1,750.00
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PLEASE INDICATE THE METHOD OF PAYMENT:
{ } A CHECK FOR THE TOTAL AMOUNT IS ATTACHED.
{ } DEBIT DDA # __________________ FOR THE TOTAL AMOUNT.
{ } LOAN PROCEEDS
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BORROWER (DATE)
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SILICON VALLEY BANK (DATE)
ACCOUNT OFFICER'S SIGNATURE
EXHIBIT C
COMPLIANCE CERTIFICATE
TO: SILICON VALLEY BANK
0000 Xxxxxx Xxxxx
Xxxxx Xxxxx, XX 00000
FROM: INTRABIOTICS PHARMACEUTICALS, INC.
The undersigned authorized officer of Intrabiotics Pharmaceuticals, Inc.
("Borrower") certifies that under the terms and conditions of the Amended and
Restated Loan and Security Agreement between Borrower and Bank (the
"Agreement"), (i) Borrower is in complete compliance for the period ending
_______________ with all required covenants except as noted below and (ii) all
representations and warranties in the Agreement are true and correct in all
material respects on this date. Attached are the required documents supporting
the certification. The Officer certifies that these are prepared in accordance
with Generally Accepted Accounting Principles (GAAP) consistently applied from
one period to the next except as explained in an accompanying letter or
footnotes. The Officer acknowledges that no borrowings may be requested at any
time or date of determination that Borrower is not in compliance with any of the
terms of the Agreement, and that compliance is determined not just at the date
this certificate is delivered.
PLEASE INDICATE COMPLIANCE STATUS BY CIRCLING YES/NO UNDER
"COMPLIES" COLUMN.
REPORTING COVENANT REQUIRED COMPLIES
------------------ -------- --------
Financial statements + CC *Monthly within 30 days Yes No
Annual (Audited) FYE within 95 days Yes No
Annual Projections (approved) FYE within 30 days Yes No
10-Q, 10-K and 8-K Within 5 days after filing with SEC Yes No
*MONTHLY REPORTING applies as of any month-end, Borrower's Liquidity Coverage
falls below 2.50 times the outstanding balances under all Bank term debt or 6
months Remaining Months Liquidity.
FINANCIAL COVENANT REQUIRED ACTUAL COMPLIES
------------------ -------- ------ --------
Maintain on a Quarterly Basis:
Minimum Liquidity Coverage 2x balance of all Bank _____:1.00 Yes No
term debt and 3 months
Remaining Months
Liquidity
Performance Covenant ** Yes No
Maximum Loss: Quarterly*** $_________ Yes No
**Borrower will submit its Performance Covenant to Bank on or prior to October
15, 2002.
***Borrower shall not report quarterly losses in excess of 20% of its projection
approved by its Board of Directors.
Have there been updates to Borrower's intellectual property? Yes / No
Borrower only has deposit accounts located at the following
institutions: .
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COMMENTS REGARDING EXCEPTIONS: See Attached.
Sincerely,
Intrabiotics Pharmaceuticals, Inc.
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SIGNATURE
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TITLE
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DATE
BANK USE ONLY
Received by:
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AUTHORIZED SIGNER
Date:
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Verified:
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AUTHORIZED SIGNER
Date:
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Compliance Status: Yes No
