cers-ex1017_599.htm



Exhibit 10.17

FOURTH AMENDMENT TO
LOAN AND SECURITY AGREEMENT

THIS FOURTH AMENDMENT to Loan and Security Agreement (this “Amendment”) is entered into as of October 25, 2016, by and between OXFORD FINANCE LLC, a Delaware limited liability company with an office located at 133 North Fairfax Street, Alexandria, Virginia 22314 (“Oxford”), as collateral agent (in such capacity, “Collateral Agent”), the Lenders listed on Schedule 1.1 of the Loan Agreement (as defined below) or otherwise party thereto from time to time (each a “Lender” and collectively, the “Lenders”) including Oxford in its capacity as a Lender and CERUS CORPORATION, a Delaware corporation with offices located at 2550 Stanwell Drive, Concord, CA  94520 (“Borrower”).

Recitals

A.Collateral Agent, Lenders and Borrower have entered into that certain Loan and Security Agreement dated as of June 30, 2014, as amended by that certain First Amendment to Loan and Security Agreement dated as of January 30, 2015, that certain Second Amendment to Loan and Security Agreement dated as of September 29, 2015 and that certain Third Amendment to Loan and Security Agreement dated as of July 28, 2016 (as the same may from time to time be amended, modified, supplemented or restated,  the “Loan Agreement”).

B.Lenders have extended credit to Borrower for the purposes permitted in the Loan Agreement.  

C.Borrower has requested that Collateral Agent and Lenders (i) modify the operating accounts requirements and (ii) make certain other revisions to the Loan Agreement as more fully set forth herein.

D.Collateral Agent and Lenders have agreed to modify such consent and to amend certain provisions of the Loan Agreement, but only to the extent, in accordance with the terms, subject to the conditions and in reliance upon the representations and warranties set forth below.

Agreement

Now, Therefore, in consideration of the foregoing recitals and other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, and intending to be legally bound, the parties hereto agree as follows:

1.Definitions.  Capitalized terms used but not defined in this Amendment shall have the meanings given to them in the Loan Agreement.

2.Amendments to Loan Agreement.  

2.1Section 6.6 (Operating Accounts).  Section 6.6(a) of the Loan Agreement hereby is amended and restated in its entirety to read as follows:

“(a)Maintain all of Borrower’s and each Loan Party’s Collateral Accounts in accounts which are subject to a Control Agreement in favor of Collateral Agent. Notwithstanding the foregoing, (i) Borrower shall not be required to deliver to Collateral Agent a Control Agreement over Borrower’s account numbered [ACCOUNT NUMBER] at National Financial Services LLC provided that such account shall (x) be closed by no later than August 31, 2017 and (y) only hold shares of Aduro (NASDAQ: ADRO) and (ii) no Foreign Subsidiary which is a Loan Party shall be required to deliver to Collateral Agent a Control Agreement to the extent perfection is not recognized under local laws, as reasonably determined by Collateral Agent.”

2.2Section 6.6 (Operating Accounts).  Section 6.6(b)(iii) of the Loan Agreement hereby is amended and restated in its entirety to read as follows:

“(iii) Restricted Bank Accounts.”



3.Limitation of Amendment.

3.1The amendments set forth in Section 2 above, are effective for the purposes set forth herein and shall be limited precisely as written and shall not be deemed to (a) be a consent to any amendment, waiver or modification of any other term or condition of any Loan Document, or (b) otherwise prejudice any right or remedy which Collateral Agent or any Lender may now have or may have in the future under or in connection with any Loan Document.

3.2This Amendment shall be construed in connection with and as part of the Loan Documents and all terms, conditions, representations, warranties, covenants and agreements set forth in the Loan Documents, except as herein amended, are hereby ratified and confirmed and shall remain in full force and effect.

4.Representations and Warranties.  To induce Collateral Agent and Lenders to enter into this Amendment, Borrower hereby represents and warrants to Collateral Agent and Lenders as follows:

4.1Immediately after giving effect to this Amendment (a) the representations and warranties contained in the Loan Documents are true, accurate and complete in all material respects as of the date hereof (except to the extent such representations and warranties relate to an earlier date, in which case they are true and correct as of such date), and (b) no Event of Default has occurred and is continuing;

4.2Borrower has the power and authority to execute and deliver this Amendment and to perform its obligations under the Loan Agreement, as amended by this Amendment;

4.3The organizational documents of Borrower delivered to Collateral Agent and Lenders on the Effective Date, or subsequent thereto, remain true, accurate and complete and have not been amended, supplemented or restated and are and continue to be in full force and effect;

4.4The execution and delivery by Borrower of this Amendment and the performance by Borrower of its obligations under the Loan Agreement, as amended by this Amendment, have been duly authorized;

4.5The execution and delivery by Borrower of this Amendment and the performance by Borrower of its obligations under the Loan Agreement, as amended by this Amendment, do not and will not contravene (a) any law or regulation binding on or affecting Borrower, (b) any contractual restriction with a Person binding on Borrower, (c) any order, judgment or decree of any court or other governmental or public body or authority, or subdivision thereof, binding on Borrower, or (d) the organizational documents of Borrower;

4.6The execution and delivery by Borrower of this Amendment and the performance by Borrower of its obligations under the Loan Agreement, as amended by this Amendment, do not require any order, consent, approval, license, authorization or validation of, or filing, recording or registration with, or exemption by any governmental or public body or authority, or subdivision thereof, binding on Borrower; and

4.7This Amendment has been duly executed and delivered by Borrower and is the binding obligation of Borrower, enforceable against Borrower in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium or other similar laws of general application and equitable principles relating to or affecting creditors’ rights.

5.Counterparts.  This Amendment may be executed in any number of counterparts and all of such counterparts taken together shall be deemed to constitute one and the same instrument.

6.Effectiveness.  This Amendment shall be deemed effective upon (i) the due execution and delivery to Collateral Agent and Lenders of this Amendment by each party hereto, and (ii) Borrower’s payment of all Lenders’ Expenses incurred through the date of this Amendment.

 

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In Witness Whereof, the parties hereto have caused this Amendment to be duly executed and delivered as of the date first written above.

 


	
COLLATERAL AGENT AND LENDER:

	
 
	
 
	
 

	
OXFORD FINANCE LLC

	
 
	
 
	
 

	
By:
	
 
	
/s/ Mark Davis

	
Name:
	
 
	
Mark Davis

	
Title:
	
 
	
Vice President of Finance

	
 

	
BORROWER:

	
 

	
CERUS CORPORATION

	
 
	
 
	
 

	
By:
	
 
	
/s/ Kevin D. Green

	
Name:
	
 
	
Kevin D. Green

	
Title:
	
 
	
VP Finance and CFO




 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

[Signature Page to Fourth Amendment to Loan and Security Agreement]