Exhibit 10.24
June 2, 2000
Xx. Xxxxx Xxxxx
Executive Vice President
Genaissance Pharmaceuticals, Inc.
Five Science Park
New Haven, CT 06511
Re: Leasehold Improvement Loan
Dear Xx. Xxxxx:
Connecticut Innovations, Incorporated, ("CII") has approved a
construction first leasehold mortgage loan to you in the amount of $1,500,000
(the "Loan") to be secured by a first mortgage on the above-referenced leasehold
property at Building 0 Xxxxx xxx Xxxxxxxx 0 Xxxxx, Xxxxxxx Xxxx, Xxx Xxxxx,
Xxxxxxxxxxx (the "Property"), on which will be constructed certain leasehold
improvements, including laboratory space (the "Project"). The Loan will be
further secured by a first perfected security interest in all of your tangible
and intangible personal property, building materials, appliances, equipment and
furnishings located or to be located on the property, as more particularly
described herein.
A. TERMS OF THE LOAN. The Loan will be made by CII to the Borrower upon
the following terms and conditions:
1. BORROWER. The Borrower shall be Genaissance Pharmaceuticals, Inc.
(the "Borrower").
2. USE OF PROCEEDS. The proceeds of the Loan shall be used to finance
leasehold improvements for laboratory and related space (the "Improvements").
3. NOTE; INTEREST RATE. The Loan will be evidenced by Xxxxxxxx's
promissory note (the "Note") in the amount of the Loan and will bear interest at
the rate of six and one half percent (6.5%) per annum and will provide for
repayment in monthly installments of principal and interest over a period of ten
(10) years. The first installment of principal and interest shall become due and
payable on July 1, 2001 (the "Amortization Date"). Until the Amortization Date,
interest only on the initial advance and all subsequent advances shall be
collected monthly in arrears, on the first (1st) day of each month after the
closing.
4. MATURITY. The outstanding balance of the Loan, and all accrued
interest thereon, shall be due and payable ten (10) years from the date of the
closing.
5. PREPAYMENT. Prepayment of the Loan or any portion thereof will be
permitted on any regular payment date without penalty or premium, provided
however that the borrower gives CII a written notice 20 business days prior to
the prepayment of the principal balance.
6. CONVERSION. During the first twelve months after the loan closes,
the outstanding principal balance of the Loan may be converted, from time to
time, in whole or in part, at the sole option of CII, into the shares of common
stock of the Borrower at a price per share equal to 150% of the average closing
price for the stock for the twenty trading days preceding the notice of
conversion. Commencing in the thirteenth month and thereafter, the outstanding
principal balance may be converted at either (i) the average closing price for
the stock for the twenty trading days preceding the notice of conversion if the
common stock is registered and publicly traded or (ii) if the common stock is
not registered and publicly traded within twelve (12) months from the date of
the date of the loan closing, then the lesser of $12.00 per share or the most
recent price awarded a private financing round or warrant issued by the Borrower
with respect to the common stock.
B. CLOSING DOCUMENTS. At the time of closing of the Loan and the
Purchase, and prior to any advance of the Loan, CII shall be furnished with the
following:
1. LOAN DOCUMENTS. In addition to the Note, at the time of closing the
Borrower shall execute and deliver the following documents as security for the
Loan:
(a) A loan agreement ("Loan Agreement") describing the terms
of the Loan, conditions for advances and other customary terms;
(b) A first mortgage (the "Mortgage") covering the Borrower's
leasehold interest in the Property, and including all building improvements,
fixtures, equipment and other articles of personal property now or subsequently
constructed, owned or acquired by the Borrower, to be duly recorded on the
applicable land records;
(c) A security agreement and UCC-1 financing statement
granting CII a first perfected security interest in all of the property and real
estate improvements of Borrower, including building materials, contracts,
leases, fixtures, equipment, and other property now or hereafter owned or
acquired by Borrower; and
(d) The additional documents described herein, including the
documents described in paragraph B.5.
The Loan Agreement, Note, Mortgage and security agreement shall all
provide for a default upon the failure to perform any covenant, condition or
agreement contained therein for a period of ten (15) days. The Note shall
provide for a late charge of three percent (3.00%) of any installment provided
for in the Note or mortgage which is not paid within ten (10) days of the date
it is due. The Note will also provide for a lien and right of set-off against,
all sums of the Borrower presently or at any time hereafter in the possession or
control of, or in transit to, CII.
2
2. TITLE INSURANCE POLICY. A signed title insurance binder (to be
supplemented, not more than five (5) business days after the initial closing by
a signed policy of title insurance), of a title company approved by CII dated
the date of the closing, insuring the interest of CII in the total amount of the
Loan as holder of a valid first mortgage lien on the Borrower's leasehold
interest in the Property free and clear of all liens, encumbrances, and title
exceptions other than those approved by CII and its counsel. Proof shall be
presented at closing of the payment of the premium for such title insurance.
Such title insurance policy shall: (i) include insurance against any and all
unrecorded mechanics' liens and materialmens' liens; (ii) contain such
endorsement including a variable rate endorsement, as may be required by CII or
its counsel; and (iii) show no liens, encumbrances, exceptions including survey
exceptions or encroachments, whether prior or subsequent to our mortgage, other
than those specifically approved by CII. Said title insurance coverage shall be
subject to review and approval by CII and its counsel prior to the closing.
3. LEASES. The Borrower's third amendment to the lease of the Property,
which shall be subject to the approval of CII and its counsel as to form and
substance together with such modifications as CII may require.
4. HAZARD AND LIABILITY INSURANCE. Evidence of insurance coverage
providing for:
(a) Fire and extended coverage insurance including vandalism
and malicious mischief, in the form of a builder's risk, 100% non-reporting
policy in an amount not less than the face amount of the Loan. The policy shall
be converted to a standard fire and extended coverage policy upon completion of
construction; and
(b) Adequate liability and worker's compensation insurance.
All evidence of insurance coverage shall be in form and substance, for
amounts and in companies acceptable to CII, with annual premiums prepaid by the
Borrower, shall have proper mortgage clauses attached providing for any loss
payable thereunder to be paid to CII, shall provide the policy may not be
cancelled without ten (10) days prior written notice to the mortgagee and shall
be deposited with CII throughout the life of the Loan. The policy shall read
"Connecticut Innovations, Incorporated and/or its successors and assigns as
their interest may appear, 000 Xxxx Xxxxxx, Xxxxx Xxxx, Xxxxxxxxxxx". The policy
shall contain the Connecticut Standard Mortgage Clause.
5. CONSTRUCTION DOCUMENTS.
(a) Additional CLOSING DOCUMENTS. CII shall be furnished with
the following additional documents prior to the advance of any Loan proceeds:
(i) Plans AND SPECIFICATIONS. Final plans and
specifications for the Project in form acceptable to CII;
(ii) COST BREAKDOWN. A detailed cost breakdown in
such form as CII may require setting forth in detail all items of construction
and cost;
3
(iii) CONSTRUCTION CONTRACT. Executed copy of the
construction contract with a contractor who is acceptable to CII, which contract
shall be acceptable in form and substance to CII and its counsel;
(iv) BUILDING PERMIT. Copies of all building permits
and other permits or certificates of appropriate municipal, state and federal
authorities required in connection with the proposed construction, including
approval of storm and sanitary sewage disposal, access to public highways and
utilities, etc.;
(v) ASSIGNMENT OF PLANS, ETC. A collateral assignment
to CII of the permits, the plans and specifications, contracts with the
contractor, engineer, architect and subcontractors; and survey, to which all
contractors, engineers, architects and subcontractors must consent;
(vi) CONTINUATION AGREEMENTS. Continuation
agreements, in the event of a default by the Borrower, from the architect,
engineer and contractor running to CII; and
(vii) CHANGES. Any material changes in the plans and
specifications and any change orders to the construction contract must be
submitted to CII for approval;
(b) CONSTRUCTION ADVANCES.
(i) The Loan will be advanced in installments as the
work progresses, the time and amount of each advance to be at the sole
discretion and upon the estimate of CII. Generally, it is contemplated that the
proportion of the Loan to be advanced will correspond to the percentage of the
work completed, based upon the architect's certification and Xxxxxxxx's detailed
requisition, in form and substance acceptable to CII, and subject to CII's
inspection; but the foregoing shall in no way limit CII's sole discretion as to
time and amount of advances. Any inspections and advances made based thereon are
for CII's purposes only, and neither the Borrower nor any third parties are
entitled to rely thereon.
(ii) Advances shall be subject to no less than five
(5) days prior written notice to CII, and submissions of such documents,
including architect's certificate, subordination of mechanics' liens, updated
title insurance or certificate of title, certificate of occupancy, etc., as CII
may reasonably require, in form and substance acceptable to it, and subject to
any other conditions specified in this commitment. The obligation of CII to make
advances shall arise only if there has been no conveyance of the Property or
transfer of the Borrower's capital stock, without CII's consent, and the
Borrower is not then in default under the Note, the Mortgage or other
undertaking in connection with the Loan, or under any lease, contract or
obligation affecting the property. No disbursements will be made for materials
not yet installed or incorporated into the property, unless CII specifically so
agrees.
4
(c) CERTIFICATE OF OCCUPANCY. A Certificate of Occupancy, issued by the
proper municipal authority, indicating that the project has been completed in
compliance with applicable building requirements and is eligible for use and
occupancy will be required as a condition of the final construction advance.
(d) CONSULTING ENGINEER. CII, in its sole discretion, may require that
an independent engineer or architect review and approve the plans,
specifications and cost breakdown for the project, the structural integrity of
the project, and all requests for advances. CII may also require that such
engineer or architect conduct all construction inspections on behalf of CII.
6. ANNUAL STATEMENT. The Borrower shall furnish to CII annually within
sixty (60) days following the end of the Borrower's fiscal year, tax returns and
financial statements of the Borrower, prepared and certified by a certified
public accountant satisfactory to CII and in such detail as CII may reasonably
require.
7. CORPORATE DOCUMENTS.
The following documents must be provided:
(i) A certificate of legal existence from the State in which
the Borrower is organized;
(ii) A certificate of good standing from the State in which
the Property is located; and
(iii) Certified resolution of the board of directors of
Borrower authorizing the consummation of the transaction contemplated.
8. MECHANICS' LIENS. If applicable, waivers of priority subordinating
such liens to the Mortgage, executed by all parties furnishing services or
supplying material within ninety (90) days prior to the date of the initial
closing (and executed by any and all parties supplying services or materials -
whether ninety (90) days prior to the closing or prior thereto under any
contract the performance of which has not yet been completed), and an affidavit
and indemnity by the Borrower to CII that no one (other than those parties who
have signed the waiver) is entitled to any lien rights in the Property.
9. LEGAL OPINIONS. Such legal opinions by Xxxxxxxx's counsel to CII as
CII or its counsel may require.
10. ENVIRONMENTAL MATTERS. Borrower comply with the following
conditions with regard to environmental contamination:
5
(a) REPRESENTATIONS. Borrower hereby represents that it has made due
and diligent inquiry of the present owner of the Property and the individual(s)
comprising the same, as well as the Connecticut Department of Environmental
Protection as to the Property and its use regarding hazardous waste storage,
seepage, etc. Borrower represents that it is not aware and has received no
notice of any:
(i) Oil petroleum, chemical solids, liquids or gasses or
hazardous waste storage on the Property at any time, except as required in
connection with normal heating requirements for the Property;
(ii) Spillage, seepage or other types of contamination or
damage from any of the products in (i) above, to the Property or any abutting
real estate; and
(iii) Notice of violation or inquiry resulting from complaints
or property damage with respect to the Property from the Connecticut Department
of Environmental Protection.
(b) The Borrower agrees to confirm these representations to CII by
affidavit from the Borrower at CII's request as a condition to the closing of
the Loan. The Borrower shall indemnify CII against any loss or damage CII shall
occur as a result of the application of environmental laws or regulations to the
Property.
11. UNIFORM COMMERCIAL CODE SEARCH. A search of the records of the
Secretary of State of Connecticut showing all financing statements filed against
Xxxxxxxx, if any.
C. OTHER CONDITIONS.
1. The closing shall be held on or before July 30, 2000. In the event
that the closing does not take place on or before that date, all duties and
obligations of CII hereunder shall terminate and expire.
2. The closing shall be held at the office of Xxxxxxx & Torrance LLP,
and you shall pay all fees and expenses of said attorney in connection with this
matter. At least five (5) days notice of closing must be given CII, and copies
of all submissions to be made before you or your attorneys must be delivered to
us at least five (5) days before the closing.
3. All legal work will be done by XXX's counsel, or if by other
attorneys acceptable to CII may be subject to review by counsel. All legal fees,
recording fees, cost of title insurance, etc., are to be paid by the Borrower at
the closing, and if applicable, all charges for review of documents by our
counsel. Any and all reasonable requirements which may be made by our counsel
must be satisfied, including the form, and delivery thereof.
6
4. Our counsel for the Loan will be the firm of Xxxxxxx and Torrance
LLP, 000 Xxxxxx Xxxxxx, Post Office Box 1950, New Haven, Connecticut,
06509-1950, Attention: Xxxxxx X. Xxxxxxxx, Xx., Esq., and you shall pay to them,
upon representation of a bill or bills for same, their reasonable fees and
expenses in connection with services that they may heretofore or hereafter
render to us in connection with this matter.
5. All costs and expenses in connection with the Loan, including but
not limited to, cost of title examination, cost of title insurance, appraisal,
recording fees and attorneys' fees shall be paid by you regardless of whether or
not the Loan may actually be closed.
6. This commitment may not be assigned by you. This commitment cannot
be modified except by a writing signed by the party against whom enforcement is
sought. All advancements of this Loan will be made to the Borrower and disbursed
through the closing attorney, and no attachment, garnishment, assignment or
voluntary or involuntary transfer of the right to receive said Loan or any part
thereof shall have any effect or bind CII unless consented to in writing by CII.
7. The Borrower and each subsidiary shall: a) maintain its principal
place of business in Connecticut, b) base a majority of its employees in
Connecticut and c) conduct a majority of its operations in Connecticut
("Connecticut Presence"). Upon the failure to maintain a Connecticut Presence,
CII will require redemption of the Loan, and the redemption price shall be the
outstanding principal balance and any accrued interest, plus a 25% penalty on
the outstanding principal balance. For purposes of determining whether the
Borrower is in compliance with this covenant, the assets, revenues and employees
of any business acquired by the Borrower on the arm's length basis from a
non-affiliate of the Borrower (provided such acquired business had been
operating for at least one year prior to the acquisition) shall be excluded and
disregarded. Payment pursuant to the redemption shall be due and payable within
sixty (60) days of the redemption notice to the Borrower.
8. All correspondence, applications or commitment letters related to
the Loan and dated prior to the date hereof are merged into and superseded by
this commitment letter and are of no further force and effect.
9. This Commitment Letter shall survive the Closing of the Loan and all
terms hereof shall be deemed to be incorporated into the loan documents, such
that a default by Borrower hereunder shall be deemed to be a default thereunder
and shall entitle CII to any and all rights or remedies referred to herein or
therein, or available to it under law or in equity.
10. Notwithstanding anything to the contrary herein contained, CII, by
making this Commitment or by an action pursuant hereto, will not be deemed a
partner of joint venture with Xxxxxxxx and Xxxxxxxx agrees to hold CII harmless
from any damages and expenses resulting from such a construction of the
relationship of the parties or any assertion thereof.
This commitment shall become effective only upon your acceptance hereof
and agreement to be bound by the terms and conditions hereof, such acceptance
and agreement
7
to be evidenced by your signing and returning to us not later than ten (10) days
from the date hereof, the copy of this letter which is enclosed.
8
Please have your closing attorney contact Xxxxxx X. Xxxxxxxx, Xx.,
Esq., at Xxxxxxx and Torrance LLP (203-777-5501) to arrange for a closing.
Very truly yours,
CONNECTICUT INNOVATIONS, INCOPORATED
By: _____________________________________
Xxxxxxx X. Xxxxxxx
Its Managing Director/Project Finance
By _____________________________________
Xxxxxx X. Xxxxxxx
Its President and Executive Director
ACCEPTED this ______day of June, 2000.
GENAISSANCE PHARMACEUTICALS, INC.
By________________________________________
9
