THIRD AMENDMENT TO TERM LOAN AGREEMENT
This Third Amendment to Term Loan Agreement (the "Amendment") is made and
entered into as of October 31, 1999 by and among SANWA BANK CALIFORNIA (the
"Bank") on the one hand and XXXXXXX X. XXXXXX (the "Borrower") and MIRAVANT
MEDICAL TECHNOLOGIES (the "Guarantor") on the other hand with respect to the
following:
RECITALS
A. This Amendment shall be deemed to be a part of and subject to that
certain Term Loan Agreement between Bank and Borrower dated as of February 17,
1998 as it may have been or may be amended from time to time (collectively the
"Agreement"). Unless otherwise defined herein, all terms used in this Amendment
shall have the same meanings as in the Agreement. To the extent that any of the
terms or provisions of this Amendment conflict with those contained in the
Agreement, the terms and provisions contained herein shall control.
B. The Agreement has a maturity date of October 31, 1999. The Borrower and
the Guarantor have requested that the Bank extend the maturity date of the
Agreement, which the Bank is willing to consent and agree to subject to the
terms and conditions of this Amendment.
NOW, THEREFORE, for valuable consideration, the Borrower, the Guarantor and
the Bank agree as follows:
AGREEMENT
1. Incorporation of Recitals. The foregoing recitals are incorporated
herein by this reference, and the parties agree that each of such recitals is
true and correct in all material respects.
2. Acknowledgment of Indebtedness. As of the date of execution of this
Amendment, Borrower and Guarantor acknowledge and agree that the outstanding
principal amount of Obligations under the Agreement is $7,593,027.50, together
with any accrued and unpaid interest. Borrower and Guarantor acknowledge and
agree that each of them has no valid defense, setoff or counterclaim which would
in any way alter, reduce or extinguish its respective obligation to Bank to
repay the Obligations.
3. Payment of Interest. Interest shall continue to accrue on the
outstanding principal balance of the Term Loan at a rate equal to the Bank's
Reference Rate as it may change from time to time minus .50% per annum. The
Borrower hereby promises and agrees to pay to the Bank interest quarterly on the
first day of each quarter, in other words on February 1, 2000, on May 1, 2000,
and on August 1, 2000 and on the maturity date of October 31, 2000.
4. Maturity Date. The date of "October 31, 1999" is hereby deleted in
Section 2.02 D of the Agreement. The date of "October 31, 2000" is hereby
substituted in its place as the maturity date of the Term Loan, on which date
the aggregate unpaid principal balance then outstanding, together with all
accrued and unpaid interest thereon, is due and payable unless sooner due in
accordance with the terms of the Agreement.
5. Release of Security Interest. Bank is presently holding as collateral
for the payment and performance of Borrower's Obligations 405,000 shares of the
common stock of Guarantor, formerly known as PDT, Inc., in the name of Borrower
as record holder. The security interest in such shares of stock is hereby
terminated and released, and Section III "Collateral" of the Agreement is
deleted in its entirety. All references to "Collateral" in the Agreement are
hereby deleted, including without limitation, Sections 6.01, 6.03, 6.07, 7.08,
8.04, 8.05 and 9.02 in their entirety The Special Power of Attorney executed by
Borrower in favor of Bank shall be of no further force and effect. Pursuant to
Borrower's agreement with Guarantor and with the consent of Guarantor, Borrower
hereby authorizes and directs Bank to deliver the foregoing shares of stock to
Xxxxxxx Xxxxx Barney, Inc. Nothing contained herein is intended to, or should it
be construed as, amending, invalidating, impairing or otherwise affecting in any
manner the security interest granted by Guarantor in favor of Bank pursuant to
its Security Agreement to secure payment and performance under its Guaranty of
Borrower.
6. Conditions Precedent. The obligations of Bank in connection with this
Amendment are subject to the conditions precedent that:
(a) This Amendment has been executed by Borrower and Guarantor;
(b) Concurrently with the execution of this Amendment, payment to Bank in
immediately available funds of an extension fee of $37,965.00, which
amount is equal to 0.5% of the outstanding principal balance of the
Term Loan. Such fee shall be deemed fully earned upon payment and
shall not be refunded in the event Borrower repays its Obligations to
Bank before the maturity date of the Agreement;
(c) Concurrently with the execution of this Amendment, payment to Bank in
immediately available funds of all accrued and unpaid interest on the
Term Loan through and including October 31, 1999; and
(d) Delivery to Bank of an opinion of counsel in form and content
satisfactory to Bank from Nida & Xxxxxxx, counsel to Guarantor, as to
such matters as are required by Bank.
7. Release.
(a) FOR GOOD AND VALUABLE CONSIDERATION, Borrower and Guarantor do each
hereby forever relieve, release, and discharge Bank and its present or
former employees, officers, directors, agents, representatives,
attorneys, and each of them, from any and all claims, debts,
liabilities, demands, obligations, promises, acts, agreements, costs
and expenses, actions and causes of action, of every type, kind,
nature, description or character whatsoever, whether known or unknown,
suspected or unsuspected, absolute or contingent, arising out of or in
any manner whatsoever connected with or related to facts,
circumstances, issues, controversies or claims existing or arising
from the beginning of time through and including the date of execution
of this Amendment (collectively "Released Claims"). Without limiting
the foregoing, the Released Claims shall include any and all
liabilities or claims arising out of or in any manner whatsoever
connected with or related to (i) the Agreement, (ii) the Guaranty,
(iii) any instruments, agreements or documents executed in connection
with any of the foregoing or (iv) the origination, negotiation,
administration, servicing and/or enforcement of any of the foregoing.
(b) In furtherance of this release, Borrower and Guarantor expressly
acknowledge and waive any and all rights under Section 1542 of the
California Civil Code, which provides as follows:
"A general release does not extend to claims which the creditor
does not know or expect to exist in his favor at the time of
executing the release, which if known by him must have materially
affected his settlement with the debtor."
(c) By entering into this release, Borrower and Guarantor recognize that
no facts or representations are ever absolutely certain and it may
hereafter discover facts in addition to or different from those which
it presently knows or believes to be true, but that it is the
intention hereby to fully, finally and forever settle and release all
matters, disputes and differences, known or unknown, suspected or
unsuspected; accordingly, if any party should subsequently discover
that any fact that it relied upon in entering into this release was
untrue, or that any understanding of the facts was incorrect, Borrower
and Guarantor shall not be entitled to set aside this release by
reason thereof, regardless of any claim of mistake of fact or law or
any other circumstances whatsoever.
(d) This release may be pleaded as a full and complete defense and/or as a
cross-complaint or counterclaim against any action, suit, or other
proceeding that may be instituted, prosecuted or attempted in breach
of this release. Borrower and Guarantor acknowledge that the release
contained herein constitutes a material inducement to Bank to enter
into this Amendment and that Bank would not have done so but for
Bank's expectation that such release is valid and enforceable in all
events.
8. Integration. This Amendment constitutes the complete agreement of the
parties with respect to the subject matters referred to herein and supersedes
all prior or contemporaneous negotiations, conversations or writings of every
kind or nature whatsoever with respect thereto, all of which have become merged
and finally integrated into this Amendment and, to the extent not included
herein, are hereby released, waived and relinquished.
9. Incorporation into Agreement. On and after the effective date of this
Amendment, each reference in the Agreement to "this Agreement", "hereunder",
"hereof", "herein" or words of like import referring to the Agreement shall mean
and be referenced to the Agreement as amended by this Amendment. This Amendment
may be modified or amended only by written agreement duly executed by all of the
parties.
10. No Waiver. The execution, delivery and performance of this Amendment
shall not, except as expressly provided herein, constitute a waiver of any
provision of, or operate as a waiver of any right, power or remedy of the Bank
under the Agreement.
11. Confirmation of Other Terms and Conditions of Agreement. Except as
specifically provided in this Amendment, all other terms, conditions and
covenants of the Agreement which are unaffected by this Amendment shall remain
unchanged and shall continue in full force and effect. The Agreement as amended
is a legal, valid and binding obligation of the Borrower, and the Borrower
hereby covenants and agrees to perform and observe all terms, covenants and
agreements provided for in the Agreement, as hereby amended.
12. Reaffirmation of Guaranty and Security Agreement. Guarantor hereby
acknowledges and agrees that its Guaranty together with the Addendum thereto and
its Security Agreement continue in full force and effect and are valid, legally
binding obligations of and enforceable against Guarantor in accordance with
their terms. Guarantor hereby restates and reaffirms as of the date of this
Amendment each and every agreement, representation, warranty and waiver set
forth in such Guaranty, Addendum and Security Agreement.
13. Construction. The titles of the sections herein appear as a matter of
convenience and reference only and shall not affect the construction hereof.
This Amendment constitutes the product of the negotiation of the parties hereto,
and in the enforcement thereof shall be interpreted in a neutral manner and not
more strongly for or against any party based upon the source of the
draftsmanship hereof.
14. Execution in Counterpart. This Amendment may be executed by facsimile
signature and in any number of counterparts, each of which, when so executed and
delivered, shall be an original, and all of which together shall constitute one
and the same agreement. This Amendment shall not be binding on any party until
all parties have executed it.
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15. ACKNOWLEDGEMENTS. EACH PARTY EXECUTING THIS AMENDMENT HEREBY
ACKNOWLEDGES THAT (A) SUCH PARTY HAS RECEIVED OR HAS HAD THE OPPORTUNITY TO
RECEIVE INDEPENDENT LEGAL ADVICE FROM ATTORNEYS OF ITS CHOICE WITH RESPECT TO
THE NEGOTIATION AND EXECUTION OF THIS AMENDMENT; (B) SUCH PARTY FULLY
UNDERSTANDS THE SIGNIFICANCE AND CONSEQUENCE OF EACH AND EVERY TERM AND
CONDITION OF THIS AMENDMENT AND HAS MADE AN INDEPENDENT AND VOLUNTARY DECISION
TO ENTER INTO THIS AMENDMENT; (C) AND IN THE EVENT LEGAL COUNSEL HAS NOT BEEN
CONSULTED, SUCH PARTY HAS KNOWINGLY AND VOLUNTARILY WAIVED THE RIGHT TO CONSULT
WITH INDEPENDENT LEGAL COUNSEL.
IN WITNESS WHEREOF, this Amendment has been executed by the parties hereto
as of the date first hereinabove written.
SANWA BANK CALIFORNIA ("Bank")
By: /s/ Xxxxx X. Xxxxxx /s/ Xxxxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx, VP & Business XXXXXXX X. XXXXXX ("Borrower")
Banking Officer
MIRAVANT MEDICAL TECHNOLOGIES
("Guarantor")
By: /s/ Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx,
Chief Executive Officer
