Exhibit 10.18
AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT
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THIS AGREEMENT, made as of this 20th day of June, 2003 by and
between Manhattan Scientifics, Inc., a Delaware Corporation having an address at
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Borrower"), and
Xxxx Xxxxxx, an individual having an address at 0000 Xxxxxx Xxxxxx Xxxxx, Xxxxx,
Xxxxx 00000, ("Lender").
W I T N E S S E T H:
WHEREAS, on or about August 19, 1999, Borrower borrowed $275,000.00
(two hundred seventy-five thousand U.S. dollars) (the "Loan Amount") from Lender
(the "Loan"); and
WHEREAS, Borrower now desires to provide Lender with collateral
security for the Loan;
NOW, THEREFORE, in consideration of Lender's making the Loan to
Borrower, and for other good and valuable consideration, the receipt and legal
sufficiency of which are hereby acknowledged, the parties hereto do hereby agree
as follows:
1. The Loan. Lender made the Loan to Borrower on or about August 19,
1999, as evidenced by an Amended and Restated Note dated as of August 19, 1999
in the principal sum of the Loan Amount (the "Note"). Unless extended in a
writing between Lender and Borrower, Borrower shall repay the principal amount
of the Loan, plus applicable interest, fees, and costs (the "Obligations"), on
or before December 31, 2003. Borrower acknowledges that no payments have been
made upon the Loan to date, and Lender acknowledges that Borrower is not in
default as of the date hereof.
2. Purpose of the Loan. Lender and Borrower acknowledge that the
proceeds of the Loan, in the Loan Amount, were used by Borrower to fund
Borrower's general operations.
3. The Note. The Loan is evidenced by the Amended and Restated Note
dated as of August 19,1999 (Exhibit A to this Agreement), which Note amends and
supercedes any other promissory note relating to the Loan.
4. The Security. To secure the payment to Lender of the Obligations,
Borrower hereby pledges to Lender the collateral set forth on Schedule A
attached hereto, which exhibit is hereby incorporated herein by reference (the
"Collateral"). All accessions to, products, and proceeds of the Collateral are
included in such security interest. Borrower reserves the right to provide
Lender with other collateral in substitution of the Collateral at any time,
provided that such other collateral is sufficient to assure repayment of the
Loan. Lender acknowledges that (a) the Collateral is contemporaneously being
pledged as security to Xx. Xxxxxx Xxxxxx, of 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000 ("Maslow") to secure other obligations of Borrower under a loan by
Maslow originally made on or about August 7, 2001 in the principal amount of
$250,000.00 at a 5.5% interest rate, and covering other amounts guaranteed by
Maslow on behalf of Borrower (the "Maslow Loan"); and (b) the security interests
of Lender and Maslow are pari pasu with respect to the Collateral and its
proceeds.
6. Representations, Warranties & Covenants. Borrower represents,
warrants and covenants that it is the owner of the Collateral, and that there
are no liens, encumbrances, or claims against the collateral, other than those
that may have been publicly disclosed by Borrower in its SEC filings and press
releases.
7. Default. The following events shall constitute "Events of
Default" hereunder:
(a) If Borrower shall fail to pay when due, whether at
maturity, by acceleration or otherwise, the payment of any of the Obligations;
(b) If Borrower shall default under the Maslow Loan;
(c) If proceedings under any bankruptcy or insolvency law are
commenced by Borrower, or if proceedings under any bankruptcy or insolvency law
are commenced against Borrower and such proceedings are not dismissed within 45
days of commencement thereof, or if a general assignment for the benefit of
creditors of Borrower is made or if a trustee or receiver of Borrower's property
is appointed;
(d) Sale of all or substantially all of the assets of
Borrower;
(e) An event of default under the Note or any other agreement,
instrument or document in connection with the Loan;
(f) Any event or condition shall occur which results in the
acceleration of the maturity of any obligation of Borrower or enables (or, with
the giving of notice or lapse of time or both, would enable) the holder of such
obligation or any person acting on such holder's behalf to accelerate the
maturity thereof;
(g) if Borrower shall breach any other material covenant,
undertaking, obligation or agreement herein and such breach shall continue
unremedied for a period of forty-five (45) days after written notice thereof
shall be given by Lender to Borrower;
(h) if any statement, warranty or representation of Borrower
made to Lender is untrue or incorrect in any material respect.
8. Remedies Upon Default. If any Event of Default shall occur, then
Lender may, and only after such Event of Default shall continue unremedied for a
period of forty-five (45) days after written notice thereof shall have been
given by Lender to Borrower, do any one or more of the following:
(a) declare all principal, interest and other Obligations
under the Loan immediately due and payable;
(b) foreclose upon the Collateral, subject to paragraph 9 of
this Agreement;
(c) Subject to paragraph 9 of this Agreement, sell or
otherwise dispose of all or any of the Collateral, it being understood and
agreed that any Collateral and/or proceeds of Collateral in excess of the
indebtedness then owing shall be immediately returned and/or paid, as
appropriate, to Borrower.
9. Required Consent. In the event that Lender invokes its remedies
under paragraphs 8(b) and/or 8(c) of this Agreement, Lender agrees that the
disposition, if any, of the Collateral shall first require the written consent
of Borrower's Board of Directors, which consent shall not be unreasonably
withheld, and which consent shall not be withheld without providing Lender with
cash, cash equivalents, and/or other collateral sufficient to cover the
Obligations and the Indemnification.
10. Prepayment. The Borrower may prepay the Loan at any time without
penalty.
11. Notices. Any notice or other communication in connection with
this Loan Agreement shall be in writing and delivered by overnight courier, with
a copy by facsimile, and shall be deemed to have been given one day following
the date actually delivered by overnight courier, provided that any such notice
or communication shall be addressed to a party hereto at the address provided
below (or to such person or address as such party shall specify in writing to
the other parties hereto):
If to Borrower:
Manhattan Scientifics, Inc.
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
WITH A COPY TO:
Xxxxx X. Xxxx, Esq.
Bach & Associates
X.X. Xxx 000
Xxxxxxxxxxxx, Xxx Xxxxxx 00000
If to Lender:
Xxxx Xxxxxx
0000 Xxxxxx Xxxxxx Xxxxx
Xxxxx, Xxxxx 00000
Each party may designate a change of address by notice to the other
party, given at least five (5) days before such change of address is to become
effective.
Any written notice may be sent by Lender, Borrower or their
respective legal counsel.
12. Miscellaneous.
(a) Modification. This Agreement, together with the Note,
contains the entire understanding between the parties with respect to the
subject matter hereof, and any promises, representations, warranties or
guarantees not herein contained shall have no force and effect unless in
writing, signed by both parties. Neither this Agreement nor any portion or
provision hereof may be changed, modified, amended, waived, supplemented,
discharged, cancelled or terminated orally or by any course of dealing, or in
any manner other than by an agreement in writing, signed by the party to be
charged.
(b) Governing Law and Other Matters. This agreement and the
rights and obligations of Borrower and Lender hereunder shall be governed by and
construed in accordance with the laws of the State of New York. Venue shall be
in the courts, both federal and state, located in New York, New York, and the
parties consent to jurisdiction in such forums.
(c) Invalidity. If any part of this Agreement is contrary to,
prohibited by, or deemed invalid under applicable laws or regulations, such
provision shall be inapplicable and deemed omitted to the extent so contrary,
prohibited or invalid, but the remainder hereof shall not be invalidated thereby
and shall be given effect so far as possible.
(d) Captions. The captions of the various sections and
paragraphs of this Agreement have been inserted only for the purpose of
convenience. Such captions are not a part of this Agreement and shall not be
deemed in any manner to modify, explain, enlarge or restrict any of the
provisions of the Agreement.
(e) Incorporation by Reference. All of the "Whereas" clauses
at the beginning of this Agreement, and all of the Exhibits annexed hereto, are
hereby incorporated by reference and made a part hereof.
(f) Counterparts; When Effective. This Agreement may be
executed in counterparts and/or via facsimile.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day and year first above written.
LENDER:
/s/ Xxxx Xxxxxx
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XXXX XXXXXX, Individually
MANHATTAN SCIENTIFICS, INC.(BORROWER)
By: /s/ Xxxxxx Xxxxxx
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EXHIBIT A
(Note)
SCHEDULE A
(Schedule and Description of Collateral)
