EXHIBIT 10.5
LOAN MODIFICATION AGREEMENT
This Loan Modification Agreement is entered into as of April 25, 2001
by and between Maxim Pharmaceuticals, Inc. (the "Borrower") and Silicon Valley
Bank ("Bank").
1. DESCRIPTION OF EXISTING INDEBTEDNESS: Among other indebtedness which
may be owing by Borrower to Bank, Borrower is indebted to Bank pursuant to,
among other documents, a Loan and Security Agreement, dated on or about October
9, 2000, as may be amended from time to time (the "Loan Agreement"). The Loan
Agreement provided for, among other things, a Committed Term Line in the
original principal amount of Four Million Dollars ($4,000,000). The Loan
Agreement has been modified pursuant to a Loan Modification Agreement dated
March 21, 2001, pursuant to which, among other things, the original principal
amount of the Committed Term Line decreased to Three Million Two Hundred
Thousand Dollars ($3,200,000). Defined terms used but not otherwise defined
herein shall have the same meanings as in the Loan Agreement.
Hereinafter, all indebtedness owing by Borrower to Bank shall be referred to as
the "Indebtedness."
2. DESCRIPTION OF COLLATERAL AND GUARANTIES. Repayment of the Indebtedness
is secured by the Collateral as described in the Loan Agreement.
Hereinafter, the above-described security documents and guaranties, together
with all other documents securing repayment of the Indebtedness shall be
referred to as the "Security Documents". Hereinafter, the Security Documents,
together with all other documents evidencing or securing the Indebtedness shall
be referred to as the "Existing Loan Documents".
3. DESCRIPTION OF CHANGE IN TERMS.
A. MODIFICATION(S) TO LOAN AGREEMENT.
1. Subletter (c) under the defined term "Permitted
Investments" under Section 1.1 entitled "Definitions"
is hereby amended in its entirety to read as follows:
(c) If no Event of Default has occurred and is
continuing or would exist after giving effect to such
loans, and no event with which notice or passage of
time would constitute an Event of Default has
occurred and is continuing or would exist after
giving effect to such loans, Borrower may make or
guarantee employee loans in an aggregate amount
outstanding of $5,000,000 at any one time for the
purposes of, and only for the purposes of employee
exercising stock options, tax obligations as a result
of exercising stock options and employee relocations
2. The term "Term Availability End Date" as defined in
paragraph "(a)" under Section 2.1.2 entitled "Term
Loans: Etc." is hereby amended to mean December 31,
2001.
3. Notwithstanding the terms and conditions contained in
Section 8.11 entitled "Recall or Governmental
Disapproval of Borrower's Product(s), the Food and
Drug Administration's decision to not approve the
Borrower's Ceplene product in January, 2001 is
excluded from this covenant.
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
the obligations to pay any amounts under the Indebtedness.
6. CONCERNING REVISED ARTICLE 9 OF THE UNIFORM COMMERCIAL CODE. The
Borrower affirms and reaffirms that notwithstanding the terms of the Security
Documents to the contrary, (i) that the definition of "Code", "UCC" or "Uniform
Commercial Code" as set forth in the Security Documents shall be deemed to mean
and refer to "the Uniform Commercial Code as adopted by the State of California,
as may be amended and in effect from time to time and (ii) the Collateral is all
assets of the Borrower, as set forth in the Loan Agreement. In connection
therewith, the Collateral shall include, without limitation, the following
categories of assets as defined in the Code: goods (including inventory,
equipment and any accessions thereto), instruments (including promissory notes),
documents, accounts (including health-care-insurance receivables, and license
fees), chattel paper (whether tangible or electronic), deposit accounts,
letter-of-credit rights (whether or not the letter of credit is evidenced by a
writing), commercial tort claims, securities and all other investment property,
general intangibles (including payment intangibles and software), as set forth
in the Loan Agreement, supporting obligations and any and all proceeds of any
thereof, wherever located, whether now owned or hereafter acquired.
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 Indebtedness pursuant to this Loan Modification Agreement in no
way shall obligate Bank to make any future modifications to the Indebtedness.
Nothing in this Loan Modification Agreement shall constitute a satisfaction of
the Indebtedness. 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. 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.
This Loan Modification Agreement is executed as of the date first
written above.
BORROWER: BANK:
MAXIM PHARMACEUTICALS, INC. SILICON VALLEY BANK
By: /s/ Xxxx X. Xxxxxx By: /s/ Xxxxx X. Le Beau
Name: Xxxx X. Xxxxxx Name: Xxxxx X. Le Beau
Title: Chief Financial Officer Title: Senior Vice President
