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EXHIBIT 10.62
MIDFA AGREEMENT
THIS MIDFA AGREEMENT (this "Agreement") is dated this 29th day of
June, 1998, by and between the MARYLAND INDUSTRIAL DEVELOPMENT
FINANCING AUTHORITY, a body politic and corporate and a public
instrumentality of the State of Maryland ("MIDFA"), FIRST SECURITY
BANK, NATIONAL ASSOCIATION, as Owner Trustee under the Guilford Real
Estate Trust 0000-0 (xxx "Xxxxxxxx"), XXXXXXXX PHARMACUETICALS INC.,
a Delaware corporation ("Guilford"), and FIRST UNION NATIONAL BANK, a
national banking association (the "Lender").
RECITALS
As of February 5, 1998, the Lender committed to make a loan in
the amount of $16,600,000 (the "Tranche A Loan") and a loan in the
amount of $2,800,000 (the "Tranche B Loan") to the Borrower for
acquisition and construction of laboratory, manufacturing and ancillary
office space located at Xxx 0X, Xxxxxxxx Xxxxxxxxxx Xxxx, in Baltimore
City, Maryland (the "Property"). The Lender also committed to make
certain equity advances of $600,000 to the Borrower as of February 5,
1998 (the "Holder Advances").
MIDFA has agreed to insure a portion of the Borrower's
obligations to the Lender to repay the Tranche A Loan pursuant to terms
and conditions of the Insurance Agreement of even date herewith between
the Lender and MIDFA (the "Insurance Agreement"). As a condition of
its entering into the Insurance Agreement, MIDFA has required, among
other things, that the Lender, the Borrower and Guilford execute and
deliver this Agreement which amends and modifies certain terms of the
Operative Documents (as defined in the Participation Agreement dated as
of February 5, 1998 among the Borrower, the Lender, and Guilford).
THEREFORE, in consideration of MIDFA entering into the Insurance
Agreement and for other good and valuable consideration, the Borrower,
the Lender and Guilford hereby agree as follows:
1. Definitions. Unless otherwise defined in this
Agreement, all terms used in this Agreement shall have the meanings
given to such terms in the Participation Agreement dated as of February
5, 1998 among the Borrower, the Lender and Guilford (the "Participation
Agreement").
2. Affirmative Covenants of Guilford. Guilford covenants and
agrees that it will:
(a) Employment Count. Upon written request, but not more
frequently than twice annually, furnish to MIDFA a written statement as
to the number of employees employed by Guilford in the State of
Maryland.
(b) Equal Employment. Comply with all federal and State
of Maryland laws regarding equal employment.
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(c) Drug and Alcohol Free Workplace. Comply with the
State of Maryland's policy regarding drug and alcohol free workplaces,
as set forth in Code of Maryland Regulations 01.01.1989.18 and
21.11.08, as adopted by the Department of Business and Economic
Development and remain in compliance so long as MIDFA's insurance
remains in effect.
3. Insurance Provided by MIDFA. MIDFA is providing financial
assistance by insuring, through the Authorized Purpose Insurance Fund,
the repayment of a portion of the principal and interest on the Tranche
A Loan, pursuant to the Insurance Agreement. In recognition of the
interests of MIDFA as an insurer, the parties to this Agreement hereby
agree that, in addition to the rights and remedies of MIDFA set forth
in the Insurance Agreement, MIDFA has certain rights and remedies in
connection with this transaction as follows:
(a) Notices to MIDFA; Consents. The Borrower, the
Lender and Guilford agree:
(i) to provide MIDFA with copies of all financial
statements, certifications, evidence of insurance coverage, and any
other information or documentation required by the Operative Agreements
to be given to the Lender, and to give MIDFA notice of any occurrences
or circumstances requiring notice to be given to the Lender as provided
in any of the Operative Agreements;
(ii) to obtain the consent, approval, determination,
permission, opinion or similar agreement of MIDFA under such
circumstances and at such times as is required to be given by the
Lender under the Operative Agreements (such consent, approval,
determination, permission, opinion or similar agreement not to be
unreasonably withheld); and
(iii) that, for so long as MIDFA's insurance remains
in place, none of the terms of the Operative Agreements may be
modified, amended or waived without the prior written consent of MIDFA
(such consent not to be unreasonably withheld).
(b) Payments by MIDFA. Notwithstanding any of
the provisions of this Agreement or any of the other Operative
Agreements, MIDFA, on behalf of the Borrower or Guilford, may, in its
discretion, elect to make any payments required to be made by the
Borrower or Guilford under the Operative Agreements and not paid by the
Borrower or Guilford within the time provided for therein or any
approved extension thereof, and may elect to cure any defaults under
any of the Operative Agreements if it so chooses. MIDFA shall be
entitled to reimbursement by the Borrower or Guilford on demand for any
such payments made by it pursuant to this paragraph.
(c) Subrogation and Reimbursement of MIDFA to the Extent
of Payments Made. MIDFA, to the extent of any payments made by it
pursuant to the Insurance Agreement or pursuant to paragraph (b) above,
shall be subrogated to (i) all rights of the Lender to receive payment
of such amounts from the Borrower, Guilford, any guarantor or others
under any of the Operative Agreements, and (ii) all rights of the
Borrower, Guilford or any guarantor to receive payment or reimbursement
of such amounts from other sources. MIDFA's subrogation rights
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shall be subordinate to the rights of the Lender to receive payment in full of
all amounts outstanding due to the Lender for the Borrower's obligations under
the Tranche A Note, the Tranche B Note and the Holder Advances. In addition, the
Borrower and Guilford agree to reimburse MIDFA for any payments made by MIDFA
under the Insurance Agreement, and such obligation to reimburse MIDFA, as well
as the obligation to reimburse MIDFA for payments made by MIDFA pursuant to the
provisions of Section 3(b) above, shall be deemed to be secured by this
Agreement and the other Operative Agreements.
(d) MIDFA a Third-Party Beneficiary. MIDFA is, to the
extent set forth in this Agreement and in the Insurance Agreement,
hereby intended to be a third-party beneficiary of the Operative
Agreements.
In addition, if MIDFA is temporarily or permanently prevented,
restricted or delayed in the performance of any or all of the duties
and obligations imposed upon or assumed by it hereunder or under the
Insurance Agreement, by act of the General Assembly of Maryland, by a
court of competent jurisdiction or by administrative delay not due to
the fault of MIDFA, its members or agents, MIDFA (and its members and
agents) shall not be deemed to be unreasonable or arbitrary in
connection with or as a result of such prevention, restriction or
delay. Upon the termination of a temporary prevention, restriction or
delay in the performance by MIDFA of any or all of its obligations
imposed upon or assumed by it hereunder or under the Insurance
Agreement, MIDFA shall assume and continue to perform such duties and
obligations to the extent permitted by law.
(e) Notices. All notices, certificates or other
written communications required by the terms of this Agreement shall be
sent to MIDFA at the following address:
Maryland Industrial Development Financing Authority
000 Xxxx Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Executive Director
All notices or other communications sent pursuant to this
Agreement shall be in writing and shall be deemed sufficiently given if
sent pursuant to the provisions of Section 12.2 of the Participation
Agreement.
4. Representations and Warranties. The Borrower, Guilford
and the Lender (each a "Representing Party") represent and warrant
severally, but not jointly, the following as of the date hereof:
(a) Each and every representation of such Representing
Party contained in the Operative Agreements to which it is a party is
true and correct in all material respects on and as of the date hereof.
(b) To the best knowledge of such Representing Party, no
Default or Event of Default has occurred and is continuing under any
Operative Agreement.
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(c) Each Operative Agreement to which such Representing
Party is a party is in full force and effect with respect to it.
(d) To the best knowledge of such Representing Party, the
Borrower, Guilford and the Lender have duly performed and complied with
all covenants contained in the Participation Agreement or in any other
Operative Agreement required to be performed or complied with by it on
or prior to the date hereof.
5. Property Financed. Notwithstanding any provision to
the contrary in the Operative Agreements, the use of the proceeds of
the Tranche A Loan, the Tranche B Loan and the Holder Advances are
limited to the financing of the Guilford property located at Xxx 0X,
Xxxxxxxx Xxxxxxxxxx Xxxx, Xxxxxxxxx Xxxx, Xxxxxxxx and to no other
Property, provided that such proceeds may be used for any use permitted
under the Operative Agreements with respect to such Guilford property.
The application of the Operative Agreements to any other property will
require the prior written consent of MIDFA.
6. Governing Law; Consent to Jurisdiction. This Agreement
shall be governed and construed according to the internal laws of the
State of Maryland. The parties hereto consent to the jurisdiction of
the federal and state courts located in Baltimore City, Maryland
involving any matter arising out of or relating to the Operative
Agreements and agree that any suit brought against MIDFA shall be
brought only in a federal or state court located in Baltimore City,
Maryland..
7. Conflict Among Agreements. To the extent that the
terms of this Agreement are inconsistent with any provisions of the
Operative Agreements, the terms of this Agreement shall control.
8. Counterparts. This Agreement may be executed in
any number of counterparts, each of which shall be an original, but all
of which shall together constitute one and the same instrument.
9. Actions of Lender. If the MIDFA Guaranty is reduced or
terminated as a result of either the Lender's default under the
Insurance Agreement or an action taken by the Lender, such MIDFA
Guaranty shall be deemed to remain in effect solely for purposes of
determining Guilford's obligations under the Operative Agreements to
maintain a specific amount on deposit in the Cash Collateral Account.
[SIGNATURES APPEAR ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, MIDFA, the Borrower, Guilford and the Lender
have executed this MIDFA Agreement under their respective seals as of
the day and year first above written.
WITNESS: MARYLAND INDUSTRIAL DEVELOPMENT
FINANCING AUTHORITY
By: /s/ D. Xxxxxxx Xxxx (SEAL)
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D. Xxxxxxx Xxxx,
Executive Director
WITNESS: FIRST SECURITY BANK, NATIONAL
ASSOCIATION, not individually, except as
expressly stated herein, but solely as the
Owner Trustee under the Guilford Real
Estate Trust 1998-1
By: /s/ Xxxxx X. Xxxx (SEAL)
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Xxxxx X. Xxxx
Asst. Vice President
WITNESS: GUILFORD PHARMACEUTICALS INC.,
as the Construction Agent and as the Lessee
By: /s/ Xxxxxx X. Xxxxxx (SEAL)
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Xxxxxx X. Xxxxxx,
Senior Vice President and Chief
Financial Officer
WITNESS: FIRST UNION NATIONAL BANK;
as a Holder, as a Lender and
as the Agent
By: /s/ Xxxxx X. Xxxxx (SEAL)
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Xxxxx X. Xxxxx,
Vice President
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