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EXHIBIT 10.60
AMENDMENT NO. 1 TO
LOAN AND FINANCING AGREEMENT
THIS AMENDMENT NO. 1 TO LOAN AND FINANCING AGREEMENT is dated as of
the 30th day of June, 1998, by and among MARYLAND ECONOMIC DEVELOPMENT
CORPORATION, a body politic and corporate and a public instrumentality of the
State of Maryland (the "Issuer"), GUILFORD PHARMACEUTICALS INC., a Delaware
corporation (the "Borrower"), and FIRST UNION NATIONAL BANK, successor by
merger to Signet Bank/Maryland (the "Lender").
RECITALS
Reference is made to that certain Loan and Financing Agreement dated
December 5, 1994, by and among the Issuer, the Borrower and the Lender (the
"Financing Agreement"), pursuant to which the Issuer made a loan to the
Borrower in the principal amount of $8,000,000 (the "Loan"). A portion of the
obligations of the Borrower with respect to the Loan have been insured by the
Maryland Industrial Development Financing Authority, a body politic and
corporate and a public instrumentality of the State of Maryland ("MIDFA"),
pursuant to a certain Insurance Agreement dated as of December 5, 1994.
Pursuant to a certain letter agreement dated February 20, 1998, by the
Lender and MIDFA to the Borrower, it was agreed that upon obtaining the
Issuer's consent, the Financing Agreement would be amended by substituting
certain of the covenants contained in that certain Participation Agreement
dated as of February 5, 1998, to which the Lender and the Borrower were
parties, for the corresponding covenants contained in the Financing Agreement.
For the purpose of effecting such amendment to the Financing Agreement, the
parties hereto have entered into this Amendment No. 1.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants set forth herein, and such other consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree
as follows:
1. All capitalized terms not otherwise defined herein which are
defined in the Financing Agreement shall have the same meanings assigned to them
in the Financing Agreement.
2. All references herein, in the Financing Agreement and in the
Notes to "this Financing Agreement", "this Agreement", "the Financing Agreement"
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and "the Agreement" shall mean and include the Financing Agreement as amended by
this Amendment No. 1.
3. Section 1.1 of the Financing Agreement is hereby amended by
amending the definition of "Permitted Encumbrances" by deleting the "." at the
conclusion thereof and adding the following language:
, and (f) any other Encumbrance included in the definition of
"Permitted Liens" in the ELLF Participation Agreement.
4. Section 1.1 of the Financing Agreement is hereby amended by
amending the definition of "Subsidiary" to read in its entirety as follows:
"Subsidiary" shall mean, as to any Person, any corporation of
which at least a majority of the outstanding stock having by the terms
thereof ordinary voting power to elect a majority of the board of
directors of such corporation (irrespective of whether or not at the
time stock of any other class or classes of such corporation shall
have or might have voting power by reason of the happening of any
contingency) is at the time owned by such Person, or by one (1) or
more Subsidiaries, or by such Person and one (1) or more Subsidiaries.
5. Section 1.1 of the Financing Agreement is hereby amended by
adding the following defined terms in the alphabetically correct sequence:
"Affiliate" shall mean, with respect to any Person, any Person
or group acting in concert in respect of the Person in question that,
directly or indirectly, controls or is controlled by or is under
common control with such Person.
"Capital Lease" shall mean, as applied to any Person, any
lease of property (whether real, personal, tangible, intangible or
mixed of such Person) by such Person as the lessee which would be
capitalized on a balance sheet of such Person prepared in accordance
with GAAP.
"Cash Equivalents" shall mean (a) securities issued or
directly and fully guaranteed or insured by the United States of
America or any agency or instrumentality thereof (provided that the
full faith and credit of the United States of America is pledged in
support thereof) having maturities of not more than twelve months from
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the date of acquisition, (b) U.S. dollar denominated time and demand
deposits and certificates of deposit of (i) the Lender, (ii) any
domestic commercial bank having capital and surplus in excess of
$500,000,000, (iii) any bank whose short-term commercial paper rating
from S&P is at least A-1 or the equivalent thereof or from Xxxxx'x is
at least P-1 or the equivalent thereof, or (iv) any other bank which
is an "Approved Bank" as defined in the ELLF Participation Agreement
(any such bank being an "Approved Bank"), in each case with maturities
of not more than 270 days from the date of acquisition, (c) commercial
paper and variable or fixed rate notes issued by any Approved Bank (or
by the parent company thereof) or any variable rate notes issued by,
or guaranteed by, any domestic corporation rated A-1 (or the
equivalent thereof) or better by S&P or P-1 (or the equivalent
thereof) or better by Moody's and maturing within six months of the
date of acquisition and (d) repurchase agreements with a bank or trust
company (including the Lender) or securities dealer having capital and
surplus in excess of $500,000,000 for direct obligations issued by or
fully guaranteed by the United States of America in which the Lender
shall have a perfected first priority security interest (subject to
no other Encumbrances) and having, on the date of purchase thereof, a
fair market value of at least 100% of the amount of the repurchase
obligations.
"Cashflow Coverage Ratio" shall mean, with respect to the
Borrower and its Subsidiaries (direct and indirect), on a consolidated
basis, as of the end of each fiscal quarter of the Borrower for the
four fiscal quarter periods ending on such date, the ratio of (a)
EBITDAR for the applicable period to (b) the sum of (i) Interest
Expense for the applicable period plus (ii) current maturities of
Funded Debt Payments for the applicable period plus (iii) Rental
Expense for the applicable period plus (iv) income taxes (determined
in accordance with GAAP) payable by the Borrower and/or its
Subsidiaries (direct or indirect) on a consolidated basis for the
applicable period.
"Credit Support Subsidiaries" shall mean GPI Holdings, Inc.,
GPI Polymer Holdings, Inc. and GPI NIL Holdings, Inc., each a Delaware
holding company.
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"EBITDA" shall mean for any period with respect to the
Borrower and its Subsidiaries (direct and indirect) on a consolidated
basis, the sum of (a) net income for such period plus (b)
depreciation, amortization, income taxes and other non-cash charges
for such period, in each case determined in accordance with GAAP
applied on a consistent basis. Except as expressly provided
otherwise, the applicable period shall be for the four consecutive
quarters ending as of the date of determination.
"EBITDAR" shall mean, for any period with respect to the
Borrower and its Subsidiaries (direct and indirect) on a consolidated
basis, the sum of (a) EBITDA for such period plus (b) to the extent
deducted in determining EBITDA for such period, Rental Expense for
such period.
"ELLF Participation Agreement" shall mean, as the same may be
amended, restated or otherwise modified from time to time, that
certain Participation Agreement dated as of February 5, 1998, among
the Borrower, as Construction Agent and the Lessee, First Security
Bank, National Association, as Owner Trustee, the various banks and
other lending institutions which are parties thereto from time to
time, as the Holders, and First Union National Bank, as Agent.
"Funded Debt" shall mean, with respect to any Person, without
duplication, all long term Indebtedness of such Person as stated on
the balance sheet of such Person, determined in accordance with GAAP.
"Funded Debt Payments" shall mean, as of the end of each
fiscal quarter of the Borrower and its Subsidiaries (direct and
indirect) on a consolidated basis, the sum of all scheduled current
maturities of Funded Debt.
"Indebtedness" of a Person shall mean, without duplication,
such Person's:
(a) obligations for borrowed money;
(b) obligations representing the deferred
purchase price of property (whether real, personal, tangible,
intangible or mixed) or services (other than accounts payable
arising in the ordinary course of such
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Person's business payable on terms customary in the trade);
(c) obligations, whether or not assumed, secured
by liens or payable out of the proceeds of production from
property now or hereafter owned or acquired by such Person;
(d) obligations which are evidenced by notes,
acceptances or other similar instruments;
(e) Capital Lease obligations;
(f) net liabilities under interest rate swap,
exchange or cap agreements; and
(g) contingent obligations.
"Interest Expense" shall mean, for any period with respect to
the Borrower and its Subsidiaries (direct and indirect) on a
consolidated basis all interest expense, including the amortization of
debt discount and premium and the interest component under Capital
Leases, in each case determined in accordance with GAAP applied on a
consistent basis. Except as expressly provided otherwise, the
applicable period shall be for the four consecutive quarters ending as
of the date of determination.
"Material Adverse Effect" shall mean a material adverse effect
on (a) the business, condition (financial or otherwise), assets,
liabilities or operations of the Borrower, (b) the ability of the
Borrower to perform its respective obligations under the Documents to
which it is a party, (c) the validity or enforceability of any of the
Documents or the rights and remedies of the Issuer, the Lender, the
Holder or MIDFA thereunder, (d) the validity, priority or
enforceability of any Encumbrance on the Property created by any of
the Documents, or (e) the value, utility or useful life of the
Property or the use, or the ability of the Borrower to use, the
Property for the purpose for which it was intended.
"Moody's" shall mean Xxxxx'x Investors Service, Inc., or any
successor or assignee of the business of such company in the business
of rating securities.
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"Permitted Subsidiary Activity" shall mean (a) with respect to
GPI Holdings, Inc., (i) owning and maintaining intangible assets,
including but not limited to, stocks, bonds, and other financial
instruments and securities and collecting and disbursing income from
such investments; (ii) engaging financial advisors and hiring
employees to oversee investment activities; (iii) engaging service
providers, including attorneys and accountants; (iv) performing all
obligations under existing agreements to which it is a party as of
February 20, 1998; and (v) any other act or activity incidental to and
in support of the foregoing, including transfer of funds or other
assets through dividends to the Borrower or by way of intercompany
loans or advances to the Borrower or its Subsidiaries (direct or
indirect), and (b) with respect to GPI Polymer Holdings, Inc. and GPI
NIL Holdings, Inc., (i) owning and maintaining intangible assets,
including but not limited to, stocks, bonds, and other financial
instruments and securities and collecting and disbursing income from
such investments; (ii) engaging financial advisors and hiring
employees to oversee investment activities; (iii) engaging service
providers, including attorneys and accountants; (iv) acquiring, owning
(through fee simple ownership as well as licenses and assignments),
and maintaining intellectual property, including patents, tradenames,
trademarks, technology, trade secrets, and know-how (collectively,
"IP"); (v) engaging third parties (including the Borrower) to perform
research and development of IP; (vi) licensing and sublicensing IP;
(vii) developing (including manufacturing of) products through
contracts with third parties (including the Borrower) utilizing the IP
and commercializing such products; (viii) acquiring additional IP;
(ix) engaging advisors and hiring employees to oversee IP activities;
(x) performing all obligations under existing agreements to which it
is a party as of February 20, 1998; (xi) registering IP on a worldwide
basis; and (xii) any other act or activity incidental to and in
support of the foregoing, including transfer of funds or other assets
through dividends to GPI Holdings, Inc. or by way of intercompany
loans or advances to the Borrower or its Subsidiaries (direct or
indirect).
"Rental Expense" shall mean, for any period, the total rental
expense under all leases (other than Capital
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Leases) of the Borrower and its Subsidiaries (direct and indirect) on
a consolidated basis, as determined in accordance with GAAP.
"S&P" shall mean Standard & Poor's Ratings Group, a division
of McGraw Hill, Inc., or any successor or assignee of the business of
such division in the business of rating securities.
"Tangible Net Worth" shall mean the total assets of the
Borrower and its Subsidiaries (direct and indirect) on a consolidated
basis exclusive of goodwill, trademarks, licenses and such other
assets as are classified as intangible assets (including without
limitation any and all loans (whether or not permitted) referenced in
Section 5.3(c)(iv) and any and all loans, advances or investments
(whether or not permitted) referenced in Section 5.3(d) in accordance
with GAAP less total liabilities of the Borrower and its Subsidiaries
(direct and indirect) on a consolidated basis.
6. Section 5.2(d) of the Financing Agreement is hereby amended to
read in its entirety as follows:
(d) Conduct of Business; Corporate Existence; Compliance
With Laws. Continue, and cause each of its Subsidiaries (direct and
indirect) to continue, to engage in or support its business of the
discovery, development and marketing of pharmaceuticals and medical
devices and shall cause to be done all things necessary to (i) obtain,
preserve and keep in full force and effect (A) the Borrower's existence
in good standing as a Delaware corporation qualified to do business in
all jurisdictions where the failure to so qualify would have a Material
Adverse Effect and (B) the existence of each Subsidiary of the Borrower
(direct and indirect) in good standing in its particular jurisdiction
of its formation and in all jurisdictions where the failure to so
qualify would have a material adverse effect on the business of such
Subsidiary and (C) its Licenses which are necessary for its business
operations at the Facility, and (ii) observe the valid requirements of
any Governmental Authority in all material respects. Notwithstanding
the foregoing, the Borrower and each Subsidiary (direct and indirect)
may, with prior notice to, but without consent of, the Holder or
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MIDFA, change its state of incorporation if such change would not
otherwise result in the occurrence of an Event of Default.
7. Section 5.2(f) of the Financing Agreement is hereby amended to
read in its entirety as follows:
(f) Financial Covenants. The Borrower and GPI Holdings,
Inc. on a consolidated basis (i) shall at all times maintain cash, Cash
Equivalents, short-term investments and investments in the aggregate in
an amount equal to or greater than $40,000,000 (as shown on the
Borrower's then most recent balance sheet, prepared in accordance with
GAAP), and such in all cases shall not be subject to any Encumbrance or
(ii) (A) as of the end of each fiscal quarter for the immediately
preceding twelve (12) month period, shall maintain a Cashflow Coverage
Ratio greater than 1.25 to 1.00 and (B) shall at all times maintain a
Tangible Net Worth of not less than $40,000,000.
8. A new Section 5.2(n) is hereby added to the Financing
Agreement to read in its entirety as follows:
(n) Subsidiaries. The Borrower shall notify the Lender
in writing regarding the formation or acquisition of any Subsidiary
within thirty (30) days of such formation or acquisition.
9. Sections 5.3(a), 5.3(b), 5.3(c), 5.3(d), 5.3(e) and 5.3(f) of
the Financing Agreement are each hereby amended to read in their entireties as
follows:
(a) Encumbrances. Create, incur, assume or suffer to
exist any Encumbrance of any kind upon any of its property or assets
including the Security, whether now owned or hereafter acquired, except
(i) the Permitted Encumbrances; (ii) Encumbrances securing purchase
money indebtedness permitted by Section 5.3(k)(iii) of this Agreement;
provided, that such shall attach only to the property being financed;
(iii) Encumbrances on accounts, inventory and other current assets of
the Borrower which are not part of the Security; (iv) Encumbrances
imposed by law, such as carriers', warehousemen's, mechanics',
materialmen's and vendors' Encumbrances, incurred in good faith in the
ordinary course of business and securing obligations which are not yet
due or which are being
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contested in good faith by appropriate proceedings; (v) Encumbrances
upon property (other than upon any Property or any component hereof)
existing at the time such property is acquired by the Borrower or any
Subsidiary (direct or indirect) of the Borrower; provided, in each case
that (A) such Encumbrances were not created in contemplation of the
acquisition by the Borrower or any Subsidiary (direct or indirect) of
the Borrower of such property, and (B) such Encumbrances do not attach
or extend to any other property; (vi) attachment, judgment or other
similar Encumbrances arising in connection with court proceedings,
provided, that the execution or other enforcement of such Encumbrances
is effectively stayed and the claims secured thereby are being actively
contested in good faith by appropriate legal proceedings; (vii)
Encumbrances permitted by the Lender and MIDFA; (viii) Encumbrances for
Taxes not delinquent or being contested in good faith and by
appropriate proceedings; (ix) Encumbrances in connection with worker's
compensation, unemployment insurance and other security obligations;
(x) deposits or pledges to secure bids, tenders, contracts (other than
contracts for the payment of money), leases, statutory obligations,
surety and appeal bonds and other obligations of like nature arising in
the ordinary course of business; (xi) Encumbrances contemplated in
favor of the Issuer and/or the Holder pursuant to the Documents; (xii)
Encumbrances contemplated under that certain Loan Agreement dated June
13, 1996 (the "RPR Agreement") between the Borrower and Xxxxx-Xxxxxxx
Xxxxx Inc., and (xiii) extensions, renewals and replacements of any
Encumbrance permitted hereunder or under the other Documents.
(b) Merger, Acquisition or Sale of Assets; Licenses; New
Ventures. Enter into any merger or consolidation or acquire (except by
gift or bequest) all or substantially all of the assets of any person,
firm, joint venture or corporation; provided, however, that, so long as
no Event of Default shall have occurred and be continuing immediately
prior to or after giving effect to the specified transaction (i) the
Borrower may acquire (A) all or any part or interest of any person in
intellectual property or other intangible assets and (B) all or
substantially all of the assets or stock of any other person to the
extent the
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limitation on capital expenditures set forth in Section 5.3(f) hereof
would not be exceeded; and (ii) any Subsidiary (direct or indirect) of
the Borrower may merge with or into or consolidate or combine with the
Borrower or with another Subsidiary (direct or indirect) of the
Borrower, provided, that if such merger involves the Borrower as a
merging party the Borrower is the surviving corporation. Neither the
Borrower nor any Subsidiary (direct or indirect) of the Borrower shall
sell, lease or otherwise dispose of any of its assets except: (i)
assets disposed of in the ordinary course of business; (ii)
intellectual property assigned, licensed or sublicensed in the ordinary
course of business; (iii) Equipment Collateral disposed of in
accordance with the provisions of Section 7.4 hereof; (iv) assets
(other than the Equipment Collateral) sold or otherwise disposed of
which are obsolete or no longer useful in the business in arm's-length
transactions; or (v) machinery, equipment and other tangible personal
property (other than the Equipment Collateral) sold or otherwise
disposed of in the ordinary course of business in arm's-length
transactions; provided, that the proceeds of such transactions are used
within three (3) months after the closing of such transactions to
purchase comparable machinery, equipment and tangible personal
property, as the case may be. Further, neither the Borrower nor any
Subsidiary (direct or indirect) of the Borrower shall (except for
Permitted Subsidiary Activity) sell, transfer, assign or encumber, in
any manner, any License with respect to the business operations on any
Property; or enter into any new ventures or businesses, other than the
business of the discovery, development and marketing of pharmaceuticals
and medical devices or activities in support thereof. Notwithstanding
anything to the contrary contained in this Section 5.3(b), neither the
Borrower nor any Subsidiary (direct or indirect) of the Borrower shall
be required to obtain the written consent of any of the Issuer, the
Holder or MIDFA with respect to any sale, lease, transfer, assignment
or other disposition of assets of any kind to the Borrower or to a
Subsidiary (direct or indirect) of the Borrower; provided, however,
that (x) prior to any sale, lease, transfer, assignment or other
disposition of assets in any twelve (12) month period having an
aggregate "net book value" (as defined in GAAP) in excess of two
million five hundred thousand
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dollars ($2,500,000) to a Subsidiary (direct or indirect) of the
Borrower (as opposed to the Borrower), the applicable recipient
Subsidiary (direct or indirect) of the Borrower shall have delivered to
the Holder and MIDFA a guarantee agreement substantially in form and
substance reasonably satisfactory to the Holder and MIDFA or (y) with
respect to any investment by the Borrower, the Borrower shall be in
compliance with Section 5.3(d) below.
(c) Loans or Advances - Generally. Exclusive of Section
5.3(d), make loans or advances to any Person or permit loans or
advances to any Person to remain outstanding except for: (i) loans and
advances existing on February 20, 1998; (ii) advances made for normal
and customary business purposes; (iii) loans to employees for the
purchase of common stock of the Borrower; and (iv) additional loans
which, in any event, shall not at any time exceed $6,000,000 for the
Borrower and its Subsidiaries (direct and indirect) on a consolidated
basis in the aggregate outstanding at the end of any one fiscal
quarter.
(d) Loans or Advances - Additional. Exclusive of Section
5.3(c) and excluding matters pertaining directly to loans, advances or
investments in or with GPI Holdings, Inc., make any loans, advances or
investments in or with any Subsidiary (direct or indirect) or Affiliate
of the Borrower or any new venture or Person in an amount which exceeds
$6,000,000 for the Borrower and its Subsidiaries (direct or indirect)
on a consolidated basis, in the aggregate outstanding at the end of any
one fiscal year.
(e) Subsidiaries. Except for Permitted Subsidiary
Activity, permit any Credit Support Subsidiary to engage in any
business or other activity or permit any Credit Support Subsidiary
without the prior written consent of the Holder and MIDFA (not to be
unreasonably withheld, delayed or conditioned) to (A) incur or
otherwise be obligated for any Indebtedness (except for intercompany
Indebtedness directly with the Borrower or a wholly-owned Subsidiary
(direct or indirect) of the Borrower) or (B) cause or permit any of its
assets to be subject to any Encumbrance or (C) merge with or into
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or otherwise consolidate with any Person except for the Borrower (and
in which case the Borrower shall be the surviving entity).
(f) Capital Expenditures. Make any capital expenditures
for fixed assets exceeding, in the aggregate, during any one fiscal
year, the total sum of $10,000,000 for the Borrower and its
Subsidiaries (direct or indirect) on a consolidated basis.
10. Section 5.2(k) of the Financing Agreement is hereby amended to
read in its entirety as follows:
(k) Cash Collateral. The Borrower shall maintain with
the Lender, pursuant to the terms of the Pledge Agreement, until the
Termination Date, the Cash Collateral which shall at all times be in an
amount which is not less than eighteen and twenty-seven hundredths
percent (18.27%) of the outstanding principal balance of the Bond minus
the Exposure. For the purposes of this Agreement, "Exposure" shall
initially mean the amount of One Hundred Fifty Thousand Dollars
($150,000.00), which amount shall decrease by Twenty-Five Thousand
Dollars ($25,000.00) annually, commencing on December 1, 1998 and
continuing on the first day of each December thereafter, with the
Exposure being eliminated by not later than December 1, 2004.
11. Sections 5.3(j) and 5.3(k) of the Financing Agreement are each
hereby amended to read in their entireties as follows:
(j) ERISA Compliance. (i) Restate or amend or permit
any Affiliate of the Borrower to restate or amend any Plan established
and maintained by the Borrower or any Affiliate of the Borrower, in a
manner designed to disqualify such Plan under the applicable
requirements of the Code; (ii) permit any officers of the Borrower or
any Affiliate of the Borrower to materially adversely affect the
qualified tax-exempt status of any Plan of the Borrower or any
Affiliate of the Borrower; (iii) engage in or permit any Affiliate of
the Borrower to engage in any Prohibited Transaction; (iv) incur or
permit any Affiliate of the Borrower to incur any Accumulated Funding
Deficiency, whether or not waived, in connection with any Plan; (v)
take or permit any Affiliate of the
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Borrower to take any action or fail to take any action which causes a
termination of any Plan in a manner which could result in the
imposition of a lien on the property of the Borrower or any Affiliate
of the Borrower pursuant to Section 4068 of ERISA; (vi) fail to notify
the Lender that notice has been received of a termination of any
Multiemployer Plan to which the Borrower or any Affiliate of the
Borrower has an obligation to contribute; (vii) incur or permit any
Affiliate of the Borrower to incur a complete or partial withdrawal
from any Multiemployer Plan to which the Borrower or any Affiliate of
the Borrower has an obligation to contribute that shall have or could
reasonably be expected to have a Material Adverse Effect; or (viii)
fail to notify the Lender that notice has been received from the
administrator of any Multiemployer Plan to which the Borrower or any
Affiliate of the Borrower has an obligation to contribute that any such
plan will be placed in "reorganization".
(k) Borrowing. Create, incur, assume or suffer to exist
any liability for borrowed money (as measured on a consolidated basis
for the Borrower and its Subsidiaries (direct and indirect)) at any
point in time except: (i) indebtedness of the Borrower secured by
Encumbrances specifically permitted by Section 5.3(a); (ii) short-term
trade indebtedness incurred in the ordinary course of the Borrower's
business operations; (iii) indebtedness incurred to finance the
purchase price of tangible assets acquired to the extent the aggregate
principal amount of such indebtedness incurred at any time of the
Borrower does not exceed $10,000,000; (iv) lease, royalty and other
similar deferred payments required to be made in connection with the
licensure or acquisition of intellectual property and other intangible
assets; (v) indebtedness subordinated to the obligations of the
Borrower under the Documents on terms acceptable to the Holder and
MIDFA; (vi) unsecured indebtedness incurred for working capital
purposes in the form of a working capital loan in a maximum aggregate
principal amount not to exceed $5,000,000 at any time outstanding;
(vii) additional unsecured indebtedness in an amount not to exceed
$5,000,000 at any time outstanding for the Borrower and all its
Subsidiaries (direct and indirect); (viii) indebtedness incurred
pursuant to the RPR Agreement, (ix) any other indebtedness permitted
under
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Section 8.3B(k) of the ELLF Participation Agreement, and (x)
indebtedness (not to exceed the principal amount of the indebtedness
being refinanced) representing the refinancing of any indebtedness
permitted under this Section 5.3(k).
12. Notwithstanding anything to the contrary contained in the
Financing Agreement, the parties hereto acknowledge and agree that (a) the
covenants set forth in Sections 5.3(a) and 5.3(k) of the Financing Agreement
shall not be construed to prohibit the Borrower from entering into, and
performing under, any operating lease, sale/leaseback or other similar
arrangement the purposes of which is to permit the use by the Borrower of
equipment, furniture and/or fixtures in the normal course of its business,
including without limitation the Master Lease Agreement dated September 10,
1996, between the Borrower and General Electric Capital Corporation (and all
agreements and instruments contemplated thereby), and (b) all calculations with
respect to covenants in the Financing Agreement shall be made by ignoring any
intercompany loans or advances between or among any of the Borrower and/or its
Subsidiaries (direct or indirect).
13. Except as amended hereby, the Financing Agreement shall remain
unchanged, and the Financing Agreement, as so amended, shall continue in full
force and effect in accordance with its terms.
14. This Amendment may be executed in any number of counterparts
and by the different parties hereto on separate counterparts, each of which,
when so executed and delivered, shall be an original, but all such counterparts
shall together constitute one and the same instrument.
15. The recitals hereto and all of the terms of the Financing
Agreement are hereby incorporated into and made a part hereof as though fully
set forth herein.
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IN WITNESS WHEREOF, the parties have caused this Amendment No. 1 to
Loan and Financing Agreement to be duly executed under seal by their duly
authorized respective officers as of the day and year first above written.
ATTEST/WITNESS: MARYLAND ECONOMIC
DEVELOPMENT CORPORATION
/s/ Xxxxxxxxx X. Xxxxxxx By: /s/ Xxxx X. Xxxxx (SEAL)
---------------------------- --------------------------
Name: Xxxx X. Xxxxx
Title: Executive Director
GUILFORD PHARMACEUTICALS INC.
/s/ Jordan X. Xxxx By: /s/ Xxxxxx X. Xxxxxx (SEAL)
---------------------------- --------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President and Chief
Financial Officer
FIRST UNION NATIONAL BANK
/s/ Xxxxxxx X. Xxxxxxxx By: /s/ Xxxxx X. Xxxxx (SEAL)
---------------------------- --------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
CONSENTED AND AGREED TO THIS
30TH DAY OF JUNE, 1998
MARYLAND INDUSTRIAL DEVELOPMENT
FINANCING AUTHORITY
By: /s/ D. Xxxxxxx Xxxx
-----------------------------
Name: D. Xxxxxxx Xxxx
Title: Executive Director
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