Exhibit 10.1
EXECUTION COPY
WAIVER AND THIRD AMENDMENT TO LOAN AND SECURITY AGREEMENT
THIS WAIVER AND THIRD AMENDMENT TO LOAN AND SECURITY AGREEMENT (this
"Amendment") is dated as of December 29, 2008 (the "Amendment Date"), by and
among HELICOS BIOSCIENCES CORPORATION, a Delaware corporation ("Borrower"),
GENERAL ELECTRIC CAPITAL CORPORATION, a Delaware corporation acting in its
capacity as agent (the "Agent") for the lenders under the Loan Agreement (as
defined below) (the "Lenders"), and the Lenders.
W I T N E S S E T H:
WHEREAS, Borrower, the Lenders and Agent are parties to that certain Loan and
Security Agreement, dated as of December 31, 2007, as amended by that certain
First Amendment to Loan and Security Agreement and Post-Closing Obligations
Letter dated as of February 14, 2008 and that certain Second Amendment to Loan
and Security Agreement dated as of June 27, 2008 (as so amended and as the same
may be further amended, supplemented and modified from time to time, the "Loan
Agreement"; capitalized terms used herein have the meanings given to them in the
Loan Agreement except as otherwise expressly defined herein), pursuant to which
Lenders have agreed to provide to Borrower certain loans and other extensions of
credit in accordance with the terms and conditions thereof;
WHEREAS, Borrower will make a prepayment of $10,000,000 on or before
December 31, 2008 (the "Pay Down Amount") to Agent, for the ratable benefit of
the Lenders, that will be applied first to the outstanding principal balance of
the Initial Term Loan and then to the outstanding principal balance of the
Subsequent Term Loan; and
WHEREAS, Borrower has requested that Agent and Lenders amend certain provisions
of the Loan Agreement, waive and defer certain fees and amend certain provisions
of the Loan Agreement, waive certain Events of Default that may have occurred
under the Debt Documents and waive certain other matters, in each case 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
adequacy of which are hereby acknowledged, Borrower, the Lenders and Agent
hereby agree as follows:
1.
ACKNOWLEDGMENT OF OBLIGATIONS.
BORROWER
HEREBY ACKNOWLEDGES, CONFIRMS AND AGREES THAT AS OF THE CLOSE OF BUSINESS ON THE
DATE HEREOF, PRIOR TO GIVING EFFECT TO THE PAYMENT OF THE PAY DOWN AMOUNT,
BORROWER IS INDEBTED TO THE LENDERS IN RESPECT OF THE TERM LOANS IN THE
AGGREGATE PRINCIPAL AMOUNT OF $17,066,870.64.
ALL SUCH TERM LOANS, TOGETHER
WITH INTEREST ACCRUED AND ACCRUING THEREON, AND FEES, COSTS, EXPENSES AND OTHER
CHARGES OWING BY BORROWER TO AGENT AND LENDERS UNDER THE LOAN AGREEMENT AND THE
OTHER DEBT DOCUMENTS, ARE UNCONDITIONALLY OWING BY BORROWER TO AGENT AND
LENDERS, WITHOUT OFFSET, DEFENSE OR COUNTERCLAIM OF ANY KIND, NATURE OR
DESCRIPTION WHATSOEVER EXCEPT AS MAY BE LIMITED BY
APPLICABLE BANKRUPTCY, INSOLVENCY, REORGANIZATION, MORATORIUM OR OTHER SIMILAR
LAWS RELATING TO OR AFFECTING CREDITOR'S RIGHTS GENERALLY.
2.
WAIVERS.
(A)
IN RELIANCE UPON