Exhibit 10.1
CONSENT AND FIRST LOAN MODIFICATION AGREEMENT
This Consent and First Loan Modification Agreement (this "Loan
Modification Agreement") is entered into as of March 20, 2008, by and among
SILICON VALLEY BANK, a California corporation, with its principal place of
business at 3003 Tasman Drive, Santa Clara, California 95054 and with a loan
production office located at 8020 Tower Crescent Drive, Suite 475, Vienna,
Virginia 22182 ("SVB"), as agent ("Agent"), and the Lenders, SVB and OXFORD
FINANCE CORPORATION ("Oxford"), and PHARMATHENE U.S. CORPORATION (formerly known
as PHARMNTHENE, INC.), a Delaware corporation with its chief executive office
located at ("Borrower").
1.
DESCRIPTION OF EXISTING INDEBTEDNESS AND OBLIGATIONS. AMONG OTHER
INDEBTEDNESS AND OBLIGATIONS WHICH MAY BE OWING BY BORROWER TO LENDERS, BORROWER
IS INDEBTED TO LENDERS PURSUANT TO A LOAN ARRANGEMENT DATED AS OF MARCH 30,
2007, EVIDENCED BY, AMONG OTHER DOCUMENTS, A CERTAIN LOAN AND SECURITY AGREEMENT
DATED AS OF MARCH 30, 2007, BETWEEN BORROWER AND LENDERS (AS AMENDED, THE "LOAN
AGREEMENT").
CAPITALIZED TERMS USED BUT NOT OTHERWISE DEFINED HEREIN SHALL HAVE
THE SAME MEANING AS IN THE LOAN AGREEMENT. CURRENTLY SVB AND OXFORD ARE THE ONLY
LENDERS.
2.
DESCRIPTION OF COLLATERAL.
REPAYMENT OF THE OBLIGATIONS IS
SECURED BY THE COLLATERAL AS DESCRIBED IN THE LOAN AGREEMENT (TOGETHER WITH ANY
OTHER COLLATERAL SECURITY GRANTED TO AGENT, FOR THE RATABLE BENEFIT OF THE
LENDERS, 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.
MODIFICATIONS TO LOAN AGREEMENT.
1
THE LOAN AGREEMENT SHALL BE AMENDED
BY INSERTING THE FOLLOWING NEW PROVISION TO APPEAR AS SECTION 6.11 THEREOF
ENTITLED "MINIMUM CASH AT SVB":
"6.11
MINIMUM CASH AT SVB. BORROWER SHALL MAINTAIN, AT ALL
TIMES, AT A SEGREGATED ACCOUNT AT EITHER SVB OR SVB SECURITIES, UNRESTRICTED AND
UNENCUMBERED CASH OR CASH EQUIVALENTS IN THE AMOUNT OF AT LEAST ONE AND
ONE-QUARTER (1.25) TIMES ALL OBLIGATIONS OF BORROWER TO THE LENDERS."
2
THE LOAN AGREEMENT SHALL BE AMENDED
BY INSERTING THE FOLLOWING NEW PROVISION TO APPEAR AS SECTION 6.12 THEREOF
ENTITLED "CREATION/ACQUISITION OF SUBSIDIARIES":
"6.12
CREATION/ACQUISITION
OF SUBSIDIARIES.
IN THE EVENT BORROWER, AFFILIATE, OR ANY SUBSIDIARY CREATES OR
ACQUIRES ANY SUBSIDIARY, BORROWER AND SUCH AFFILIATE OR SUBSIDIARY SHALL
PROMPTLY NOTIFY AGENT OF THE CREATION OR ACQUISITION OF SUCH NEW SUBSIDIARY AND
TAKE ALL SUCH ACTION AS MAY BE REASONABLY REQUIRED BY AGENT TO CAUSE EACH SUCH
DOMESTIC SUBSIDIARY TO GUARANTEE THE OBLIGATIONS OF BORROWER UNDER THE LOAN
DOCUMENTS AND GRANT A CONTINUING PLEDGE AND SECURITY INTEREST IN AND TO THE
ASSETS OF SUCH SUBSIDIARY (SUBSTANTIALLY AS DESCRIBED ON EXHIBIT A HERETO); AND
BORROWER SHALL GRANT AND PLEDGE TO AGENT, FOR THE RATABLE BENEFIT OF LENDERS A
PERFECTED SECURITY INTEREST IN THE STOCK, UNITS OR OTHER EVIDENCE OF OWNERSHIP
OF EACH
SUBSIDIARY."
3
NOTWITHSTANDING SECTION 6.6(B),
BORROWER SHALL DELIVER TO AGENT A CONTROL AGREEMENT WITH M&T BANK, GRANTING
LENDERS A FIRST PERFECTED SECURITY INTEREST IN THE ACCOUNTS HELD AT M&T BANK, IN