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EXHIBIT 10.36
LOAN AGREEMENT
THIS LOAN AGREEMENT (this "Agreement") is made this 30th day of April,
1996, by and among GUILFORD PHARMACEUTICALS, INC., a Delaware corporation (the
"Borrower") and SIGNET BANK, a Virginia banking association (the "Lender").
RECITALS
R.1 The Borrower has requested the Lender to make a loan to the
Borrower in the principal amount of Four Million Two Hundred Thousand Dollars
($4,200,000.00) (the "Loan") and the Lender is willing to extend such credit to
be evidenced by a Promissory Note of even date herewith (the "Note").
R.2 The proceeds of the Loan are to be used by the Borrower for
leasehold improvements at Borrower's facility located at 0000 Xxxxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxx 00000 (the "Facility").
R.3 The Borrower is presently indebted to the Lender under the
terms and conditions of a Maryland Economic Development Corporation Taxable
Economic Revenue Bond (Guilford Pharmaceuticals, Inc. Facility), 1994 issue in
the original principal amount of Eight Million Dollars ($8,000,000.00) (the
"Bond"), as evidenced by the Bond and by that certain Loan and Financing
Agreement among the Maryland Economic Development Corporation, as Issuer, the
Lender and the Borrower dated December 5, 1994 (as amended from time to time,
the "Financing Agreement").
R.4 The Borrower and the Lender desire to enter into this
Agreement to provide for the advancing of Loan proceeds for the completion of
the leasehold improvements to the Facility and for the purchase of any
equipment required in connection therewith.
NOW, THEREFORE, in consideration of the premises, the mutual covenants
and agreements contained herein, and other good, valuable and legal
consideration, the receipt and adequacy of which are hereby acknowledged, the
Borrower and the Lender, intending to be legally bound, do hereby agree as
follows:
1. REPRESENTATIONS, WARRANTIES AND COVENANTS. The
representations, warranties and covenants of the Borrower contained in the
Financing Agreement are incorporated by reference herein and are made a part
hereof. Borrower covenants that Borrower is in compliance with the
representations, warranties and
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covenants of the Financing Agreement on the date of this Agreement and shall be
in compliance with such representations, warranties and covenants on the date
of any advance made to Borrower hereunder except to the extent such
non-compliance is disclosed to Lender in writing or to the extent the
representations, warranties or comments are relevant as to a specific date.
2. APPLICATION AND ADVANCES OF LOAN PROCEEDS.
2.1 Application of Loan Proceeds; Advances. The Loan will
be made by the Lender to the Borrower as needed for the payment of leasehold
improvements to the Facility. The proceeds of the Loan will be advanced by the
Lender from time to time in accordance with the procedure set forth in this
Section 2 directly to the Borrower or for the account of the Borrower as the
leasehold improvements are completed. The Note will bear interest based upon
the aggregate amount of proceeds advanced to the Borrower by the Lender
pursuant to this Section 2.
2.2 Procedure for Making Advances of Loan Proceeds. Each
advance of Loan proceeds shall be made only upon receipt by the Lender of a
written request (each, a "Requisition") executed by an authorized Borrower
representative (an "Authorized Person").
(a) Requisitions for Leasehold Improvements.
Requisitions for costs of constructing the leasehold improvements shall
include the following information: (i) the amount of the requested advance
(ii) a representation that the proceeds of the advance will be applied by the
Borrower toward the completion of the leasehold improvements to the Facility
and (iii) a representation that to Borrower's knowledge the leasehold
improvements are being constructed in compliance with all federal, state and
local building codes, rules and regulations.
(b) Timing. The Lender shall have a period of ten
business days within which to fund each Requisition and shall not be required
to disburse proceeds of the Loan more frequently than once every two weeks.
(c) Payment of Advances. Disbursements of proceeds
of the Loan shall made by the Lender directly to the Borrower by credit to the
checking account established specifically for the purposes of paying the costs
of the leasehold improvements to be funded in connection with the Loan. Upon
receipt of any funds requested by any Requisition, the Borrower shall
immediately apply such funds to payment of the costs for which such funds are
requested by the Requisition.
(d) Stored Materials. No advances of Loan proceeds
shall be made for materials which are not physically incorporated into the
Facility, other than for materials actually delivered to the site and stored
in a place which is secured and insured against theft, vandalism and other
damage, all in a manner satisfactory to the Lender in its reasonable discretion.
(e) Lender's Reliance on Requisitions. In making
any advance of Loan proceeds, the Lender may rely on any Requisitions and
certifications delivered to it pursuant to this Section 2.2, and Lender shall
be relieved of all liability with respect to making such payments in
accordance with such Requisitions and certifications, except for only for its
gross
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negligence. Each Requisition submitted pursuant to this Loan Agreement or the
receipt of the advance of Loan proceeds requested thereby, shall constitute an
affirmation that the representations and warranties of the Borrower set forth
in the Financing Agreement are true and correct in all material respects as of
the date of such Requisition, except as otherwise disclosed to the Lender by
the Borrower in writing or which, by their terms are only relevant as to a
specific date.
(f) No Liability to Third Parties. The making of
the Loan shall not in any way be construed as an obligation of the Lender to
any person for the payment of any expense incurred with respect to leasehold
improvements to the Facility, and no person contracting with the Borrower in
connection with the leasehold improvements to the Facility shall be reimbursed
by the Lender under any circumstances whatsoever. The Lender shall in no way
be responsible for liable to any person other than the Borrower for the
advance of or failure to advance Loan proceeds, or any part thereof, and no
engineer, general contractor, subcontractor, architect, material or equipment
supplier or any other person shall have any right or claim against the Lender
under this Loan Agreement or in connection with the administration hereof.
2.3 Conditions Precedent to An Advance of Loan Proceeds.
(a) No Event of Default. No Event of Default shall
have occurred hereunder, other than any Event of Default waived by or cured to
the satisfaction of the Lender.
(b) Proper Application of Prior Advances. At
Lender's request, Borrower shall deliver to Lender evidence satisfactory the
Lender that all prior advances have been properly applied to the leasehold
improvements to the Facility.
(c) Quality and Quantity of Construction. At
Lender's request, Borrower shall deliver to Lender evidence that all
construction work performed and all materials in place to the date of the
Requisition are satisfactory as to both quantity and quality.
(d) Maximum Loan Amount. The amount of the
requested advance, together with all other amounts outstanding in connection
with the Loan shall not exceed $4,200,000.00.
3. INSPECTION OF RECORDS AND PROPERTY. During the term of the Loan,
the Borrower shall permit the Lender, or any person, entity or agent
authorized by the Lender, to inspect and examine all property, assets, records
and books of the Borrower (regardless of where maintained) and all supporting
vouchers and data and to make copies and extracts therefrom at all reasonable
times and as often as may be requested by the Lender.
4. DEFAULT. The Borrower shall be in default under this Agreement
and under each of the other Loan Documents upon the occurrence of any one or
more of the following (each an "Event of Default"; any one or more
collectively, "Events of Default"): (a) there occurs any failure to pay any
amounts when due and owing under the Loan or the Loan Documents subject to any
applicable grace or cure period; or (b) any representation or warranty made in
the Financing
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Agreement or in connection with this Agreement, or any of the other Loan
Documents, shall prove to have been false or misleading when made in any
material respect; or (c) the Borrower fails to timely and properly observe,
keep or perform, any term, covenant, agreement or condition in the Financing
Agreement, this Agreement or in any of the other Loan Documents.
5. RIGHTS AND REMEDIES. Upon the occurrence of an Event of
Default under this Agreement, the Lender shall have no obligation to continue
to make advances to Borrower hereunder and shall have all of the rights and
remedies under each of the Loan Documents and under applicable laws.
6. MISCELLANEOUS.
6.01 Any capitalized term not otherwise defined herein
shall have the meaning assigned to such term in the Note.
6.02 No modification or waiver of any provision of this
Loan Agreement and no consent by Lender or Borrower to any departures from the
provisions of this Loan Agreement shall be effective unless in writing and
signed by Lender and Borrower, and then such modification, waiver, or consent
shall be effective only in the specific instance and for the specific purpose
for which given.
6.03 The rights and remedies under this Loan Agreement and
all other rights and remedies available to Lender under applicable law are
cumulative and may be exercised alternatively, concurrently, or successively
at the sole discretion of Lender and the exercise of any one or more of them
will not be a waiver of the other. No delay or failure on the part of Lender
to exercise any of its rights and remedies, or any partial or single exercise
of its rights and remedies, shall constitute a waiver of any such rights and
remedies.
6.04 Borrower shall execute and deliver to Lender such
further instruments and shall take such further action as Lender may at any
time or times reasonably request in order to carry out the provisions and
intent of this Loan Agreement.
6.05 Borrower agrees to pay to Lender on demand the
amount of all expenses paid or incurred by the Lender (including the fees and
expenses of its counsel) in connection with the preparation of this Loan
Agreement and the other Loan Documents. The provisions of this Subsection
shall survive the termination of this Loan Agreement
6.06 This Loan Agreement shall be governed by, construed
and interpreted in accordance with the laws of the State of Maryland
(excluding the choice of law rules thereof). The parties hereto each hereby
irrevocably submit to the non-exclusive jurisdiction of any Maryland court or
federal court sitting in the State of Maryland in any action or proceeding
arising out of or relating to this Loan Agreement, and hereby irrevocably
waive any objection to the laying of venue of any such action or proceeding in
any such court and any claim that any such action or proceeding has been
brought in an inconvenient forum. A final judgment in any such action or
proceeding shall be conclusive and may be enforced in any other jurisdiction
by suit on the
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judgment or in any other manner provided by law.
6.07 If any provision or part of any provision of this
Loan Agreement shall for any reason be held invalid, illegal or unenforceable
in any respect, such invalidity, illegality or unenforceability shall not
affect any other provision (or any remaining part of any provision) of this
Loan Agreement, and this Loan Agreement shall be construed as if such invalid,
illegal or unenforceable provision (or part thereof) had never been contained
in this Loan Agreement, but only to the extent of its invalidity, illegality,
or unenforceability.
6.08 THE BORROWER HEREBY (i) COVENANTS AND AGREES NOT TO
ELECT A TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY A JURY, AND (ii) WAIVES
TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO WHICH THE LENDER AND THE BORROWER
MAY BE PARTIES ARISING OUT OF, IN CONNECTION WITH OR IN ANY WAY PERTAINING TO
THIS LOAN AGREEMENT, ANY OF THE LOAN DOCUMENTS AND/OR ANY TRANSACTIONS,
OCCURRENCES, COMMUNICATIONS, OR UNDERSTANDINGS (OR THE LACK OF ANY OF THE
FOREGOING) RELATING IN ANY WAY TO THE RELATIONSHIP AMONG THE PARTIES UNDER
THIS ASSIGNMENT OR THE LOAN DOCUMENTS. IT IS UNDERSTOOD AND AGREED THAT THIS
WAIVER CONSTITUTES A WAIVER OF TRIAL BY JURY OF ALL CLAIMS AGAINST ALL PARTIES
TO SUCH ACTIONS OR PROCEEDINGS, INCLUDING CLAIMS AGAINST PARTIES WHO ARE NOT
PARTIES TO THIS AGREEMENT. THIS WAIVER OF JURY TRIAL IS SEPARATELY GIVEN,
KNOWINGLY, WILLINGLY AND VOLUNTARILY MADE BY THE BORROWER AND THE BORROWER
HEREBY AGREES THAT NO REPRESENTATIONS OF FACT OR OPINION HAVE BEEN MADE BY ANY
INDIVIDUAL TO INDUCE THIS WAIVER OF TRIAL BY JURY OR TO IN ANY WAY MODIFY OR
NULLIFY ITS EFFECT. THE LENDER IS HEREBY AUTHORIZED TO SUBMIT THIS LOAN
AGREEMENT TO ANY COURT HAVING JURISDICTION OVER THE SUBJECT MATTER AND THE
BORROWER SO AS TO SERVE AS CONCLUSIVE EVIDENCE OF SUCH WAIVER OF RIGHT TO TRIAL
BY JURY. THE BORROWER REPRESENTS AND WARRANTS THAT IT HAS BEEN REPRESENTED IN
THE SIGNING OF THIS LOAN AGREEMENT AND IN THE MAKING OF THIS WAIVER BY
INDEPENDENT LEGAL COUNSEL, SELECTED OF ITS OWN FREE WILL, AND/OR THAT IT HAS
HAD THE OPPORTUNITY TO DISCUSS THIS WAIVER WITH COUNSEL.
6.09 Any notice, demand, request or other communication
which the Lender or the Borrower may be required to give hereunder shall be
given in the manner set forth in the Note.
6.10 This Loan Agreement shall benefit and be enforceable
by Lender and Lender's successors and assigns and any other person to whom
Lender may grant an interest in the Obligations, and shall be binding and
enforceable against Borrower and Borrower's successors and assigns.
6.11 This Loan Agreement may be executed in duplicate
originals or in
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several counterparts, each of which shall be deemed an original but all of
which together shall constitute one instrument.
6.12 Time is of the essence under this Loan Agreement.
6.13 The paragraph headings of this Loan Agreement are for
convenience only, and shall not limit or otherwise affect any of the terms
hereof.
6.14 This Loan Agreement and the other Loan Documents, if
any, constitute the entire agreement between the parties with respect to their
subject matter and supersede all prior letters, representations, or agreements,
oral or written, with respect thereto. No modification, release, or waiver of
this Loan Agreement shall be deemed to be made by the Lender unless in writing
signed by the Lender, and each such waiver, if any, shall apply only with
respect to the specific instance involved. No course of dealing or conduct
shall be effective to modify, release or waive any provisions of this Loan
Agreement or any of the other Loan Documents.
6.15 All covenants, agreements, representations and
warranties made in this Loan Agreement and the other Loan Documents shall be
deemed to be material and relied on by the Lender, notwithstanding any
investigation made by or on behalf of the Lender, and shall survive the
execution and delivery to Lender of this Loan Agreement and the other Loan
Documents.
IN WITNESS WHEREOF, the Borrower and the Lender have signed and
sealed this Loan Agreement on the day and year first above written.
WITNESS/ATTEST: GUILFORD PHARMACEUTICALS, INC.
By: /s/ Xxxxxx X. Xxxxxx (SEAL)
------------------------ --- ------ -- ------
Name: Xxxxxx X. Xxxxxx
Title: Vice President, Chief Financial
Officer & Treasurer
WITNESS: SIGNET BANK
By: /s/ Xxxxxx X. Xxxxxxx SEAL)
------------------------ --- ------ -- -------
Xxxxxx X. Xxxxxxx
Vice President
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FIRST AMENDMENT TO THE LOAN AGREEMENT
THIS FIRST AMENDMENT TO LOAN AGREEMENT (this "Amendment to the Loan
Agreement") is made this 6th day of December, 1996, by and between GUILFORD
PHARMACEUTICALS, INC., a Delaware corporation (the "Borrower") and SIGNET BANK,
a Virginia banking association (the "Lender").
RECITALS
R.1 The Borrower requested the Lender to make a loan to the Borrower in
the principal amount of Four Million Two Hundred Thousand Dollars
($4,200,000.00) (the "Loan") and the Lender has extended such credit as
evidenced by a Promissory Note dated April 30, 1996 (the "Note").
R.2 The proceeds of the Loan are being used by the Borrower for leasehold
improvements at Borrower's facility located at 0000 Xxxxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxx 00000 (the "Facility").
R.3 The Borrower is presently indebted to the Lender under the terms and
conditions of a Maryland Economic Development Corporation Taxable Economic
Revenue Bond (Guilford Pharmaceuticals, Inc. Facility), 1994 issue in the
original principal amount of Eight Million Dollars ($8,000,000.00) (the
"Bond"), as evidenced by the Bond and by that certain Loan and Financing
Agreement among the Maryland Economic Development Corporation, as Issuer, the
Lender and the Borrower dated December 5, 1994 (as amended from time to time,
the "Financing Agreement").
R.4 The Borrower and the Lender entered into a Loan Agreement (the "Loan
Agreement") dated April 30, 1996 to provide for the advancing of the Loan
proceeds.
R.5 The Borrower has requested the Lender to increase the Loan amount to
the Borrower to the principal amount of Six Million Seven Hundred Thousand
Dollars ($6,700,000.00) and the Lender is willing to increase the Loan and
extend such credit to be evidenced by an Amended and Restated Promissory Note
of even date herewith (the "Amended and Restated Promissory Note").
NOW, THEREFORE, in consideration of the premises, the mutual covenants and
agreements contained herein, and other good, valuable and legal consideration,
the receipt and adequacy of which are hereby acknowledged, the Borrower and the
Lender, intending to be legally bound, do hereby agree as follows:
SECTION 1. Definitions. All terms used in this Amendment to the Loan
Agreement and not otherwise defined or modified herein shall have the same
meaning as set forth in the Loan Agreement, as the same were in effect prior to
the execution of this Amendment to the Loan Agreement.
SECTION 2. The Loan Agreement is hereby amended to reflect the Loan
amount of Six Million Seven Hundred Thousand Dollars ($6,700,000.00) in place
of the amounts set forth in the Loan Agreement dated April 30, 1996.
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SECTION 3. Ratification and Reaffirmation of the Loan Agreement.
Except as hereby expressly modified or amended, the Loan Agreement shall
remain in full force and effect; and the Loan Agreement, as supplemented and
amended hereby, is ratified and confirmed. Without limitation of the
foregoing, it is understood and agreed that the incorporation in Section 1 of
the Loan Agreement of the representations, warranties, and covenants of the
Borrower contained in the Financing Agreement shall refer to such
representations, warranties, and covenants in the Financing Agreement as the
same may be amended from time to time.
SECTION 4. Interpretation. In the event of any conflict between the
provisions of the Loan Agreement as originally in effect and the provisions of
this Amendment to the Loan Agreement, the provisions of this Amendment to the
Loan Agreement shall control.
SECTION 5. Binding Effect. This Amendment to the Loan Agreement shall
inure to the benefit of and shall be binding upon the Lender, the Pledgor and
their respective successors and assigns.
SECTION 6. Execution of Counterparts. This Amendment to the Loan
Agreement may be executed in several counterparts, each of which shall be an
original and all of which shall constitute but one and the same instrument.
SECTION 7. Effective Date. Subject to the conditions set forth herein,
this Amendment to the Loan Agreement shall become effective as of the date
first written above.
IN WITNESS WHEREOF, Signet Bank as Lender and Guilford Pharmaceuticals,
Inc., as Borrower have each caused this Amendment to the Loan Agreement to be
executed in their respective names under seal by their duly and authorized
officers as of the day and year first above written.
WITNESS: SIGNET BANK, as Lender
By: /s/ Xxxxxx X. Xxxxxx (SEAL)
--- ------ -- ------
Xxxxxx X. Xxxxxx
Vice President
[SIGNATURES CONTINUED]
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[SIGNATURES CONTINUED]
WITNESS: GUILFORD PHARMACEUTICALS, INC., as
Borrower
By: /s/ Xxxxxx X. Xxxxxx (SEAL)
--- ------ -- ------
Xxxxxx X. Xxxxxx
Vice President and Chief Financial Officer
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