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EXHIBIT 10.46
LOAN AGREEMENT
THIS LOAN AGREEMENT is entered into as of July 6, 1998 (this "Loan
Agreement") between ONCORMED, INC., a Delaware corporation (herein called
"Borrower"), and GENE LOGIC INC., a Delaware corporation (herein called
"Lender"). Defined terms used herein are identified on EXHIBIT A hereto unless
otherwise defined herein.
RECITALS
A. Lender and Borrower have concurrently entered into the Merger
Agreement.
B. Borrower needs working capital to continue its operations in the
ordinary course of business.
C. Lender is willing to provide interim working capital to Borrower until
the closing under the Merger Agreement and on the terms and subject to the
conditions set forth herein.
D. Lender and Borrower wish to provide (1) collateral and security for the
obligations of Borrower under this Loan Agreement and (2) for the repayment of
advances hereunder in the event that the Merger Agreement is not consummated.
AGREEMENT
1. COMMITMENT. Subject to all the terms and conditions of this Loan
Agreement and prior to the termination of its commitment as hereinafter
provided, Lender hereby agrees to make loans (each a "Loan") to Borrower in such
amounts as Borrower shall request pursuant to SECTION 1.C. at any time from the
date hereof through February 28, 1999 (the "Availability End Date"), in an
aggregate principal amount not to exceed $2,000,000 (the "Commitment"). The
commitment of Lender, pursuant to the terms of this Loan Agreement, to make
Loans shall expire on the Availability End Date. Borrower promises to pay to
Lender the outstanding unpaid principal balance (and all accrued unpaid interest
thereon) of the Loan Account on the Maturity Date (as defined below).
A. MATURITY DATE. The Maturity Date shall be the earlier of: (i)
March 31, 1999; or (ii) in the event that the Merger Agreement is not
consummated in accordance with its terms, the date on which Borrower obtains
alternate financing in an amount of at least $2,000,000 on terms satisfactory to
Borrower in its sole discretion; or (iii) the date on which Borrower sells or
otherwise disposes of all or substantially all of its assets or business, or
liquidates, dissolves, merges or consolidates, other than pursuant to the Merger
Agreement (the "Maturity Date").
B. LOANS. The amount of each Loan made by Lender to Borrower hereunder
shall be debited to the loan ledger account of Borrower maintained by Lender for
the Commitment (herein called the "Loan Account") and Lender shall credit the
Loan Account with all loan repayments in respect thereof made by Borrower. When
Borrower desires to obtain a Loan, Borrower shall notify Lender (which notice
shall be signed by an officer of Borrower and shall be irrevocable) in
accordance with SECTION 2 hereof (the "Loan Request"). Each Loan made by Lender
shall be evidenced by a separate note, substantially in the form of EXHIBIT B
attached hereto and incorporated herein by this reference (each a "Note" or
collectively, "Notes"), executed by Borrower and made payable to the order of
Lender. Any Loan may be prepaid, in whole or in part, from time to time without
penalty or premium. Partial prepayments shall be in an amount equal to $10,000
or a greater amount which is an integral multiple thereof. Borrower shall give
Lender prior notice of at least one business day before any such prepayment.
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C. CONDITIONS TO ADVANCES.
(1) INITIAL ADVANCE. The initial advance shall be $500,000. The
following conditions must be satisfied prior to such initial advance:
(a) The Merger Agreement shall have been executed and
delivered by Borrower and Lender; and
(b) Borrower shall have delivered to Lender a duly
executed note in the form of EXHIBIT B hereto and in the principal amount of
$500,000.
(2) ADDITIONAL ADVANCES. Each additional advance (other than the
initial advance) (each an "Additional Advance") shall not exceed $500,000. The
following conditions must be satisfied prior to each Additional Advance:
(a) Borrower shall have delivered to Lender a duly
executed Loan Request in the form of EXHIBIT C hereto and in the amount
established pursuant to SECTION 3 below;
(b) There shall not be subsisting any Advance
Limitation;
(c) Borrower shall have delivered to Lender a duly
executed note in the form of EXHIBIT B hereto and in the principal amount of the
Additional Advance;
(d) Borrower shall have provided Lender with
satisfactory evidence that Borrower has obtained the Required Consents; and
(e) The Merger Agreement has not been terminated.
Notwithstanding any of the foregoing provisions contained in this SECTION 1,
prior to the first Additional Advance, the Lender shall have received an opinion
of counsel to the Borrower in form and substance satisfactory to Lender and
covering the matters set forth on EXHIBIT D hereto.
D. INTEREST RATE. Interest shall accrue on the sum of the daily unpaid
principal balance of the Loan Account outstanding on each day in lawful money of
the United States of America, from the date of the advance of the initial Loan
through the Maturity Date, which interest shall be payable in arrears at the
rate per annum that Citibank N.A. has announced as its prime lending rate and
shall be due and payable on the Maturity Date. Interest shall be computed at the
above rate on the basis of the actual number of days during which the principal
balance of the Loan Account is outstanding divided by 360, which shall for
interest computation purposes be considered one (1) year.
2. LOAN REQUESTS. Loan Requests shall be in the form of EXHIBIT C
attached hereto and incorporated herein by this reference and accompanied by a
duly executed note in the amount of the requested advance and in the form
specified in SECTION 1.B. above.
3. AMOUNTS OF ADDITIONAL ADVANCES. Additional Advances may be requested
by Borrower on or about the first day of each month commencing August 1, 1998.
Commencing July 20, 1998, on or before the twentieth (20th) day of each month,
Borrower will provide Lender with a budget for the next succeeding calendar
month which budget shall set forth the estimated expenditures and amount of
cash and cash equivalents of
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Borrower at the end of such succeeding month. Lender shall have five (5)
business days to respond to such proposed budget and if Lender does not approve
such budget within five (5) business days, than Lender and Borrower shall
negotiate a mutually agreeable budget. The amount of the Additional Advance for
that month shall not exceed the lesser of (i) $500,000, or (ii) that amount
which will result in Borrower having a projected amount of cash and cash
equivalents equal to $1,000,000 at the end of such succeeding month.
4. DEFAULT INTEREST. From and after the Maturity Date or such
earlier date as all sums owing under any Loan Account becomes due and payable by
acceleration or otherwise, at the option of Lender all sums owing under the
applicable Loan Account shall bear interest until paid in full at a rate equal
to the lesser of (a) five percent (5.0%) per annum in excess of the then
applicable interest rate provided for in SECTION 1.D hereof or (b) the maximum
amount permitted to be charged by applicable law, until all obligations
hereunder are repaid in full.
5. REPRESENTATIONS AND WARRANTIES. Lender has relied on the
representations and warranties set forth in Article 2 of the Merger Agreement
which are incorporated herein as if made on the date hereof. Borrower further
represents and warrants to Lender: (a) That the execution, delivery and
performance of each of the Loan Documents are within Borrower's corporate
powers, have been duly authorized and are not in conflict with law or the terms
of any charter, by-law or other incorporation papers, or of any indenture,
agreement or undertaking to which Borrower is a party or by which Borrower is
bound or affected; and (b) Borrower is, and at the time the Collateral becomes
subject to Lender's security interest will be, the true and lawful owner of and
has, and at the time the Collateral becomes subject to Lender's security
interest will have, good and clear title to the Collateral, subject only to
Lender's rights therein and to Permitted Liens.
6. NEGATIVE COVENANTS. Borrower agrees that so long as any loans,
obligations or liabilities remain outstanding or unpaid to Lender or the
commitment of Lender hereunder is in effect, neither Borrower, nor any of its
subsidiaries ("Subsidiaries") will, without the prior written consent of Lender:
A. Make any substantial change in the character of its business as
now conducted;
B. Sell, dispose of or grant a security interest in any of the
Collateral other than to Lender (other than the disposing of such Collateral in
the ordinary and normal course of its business as now conducted, including,
without limitation, pursuant to existing obligations to Incyte Pharmaceuticals,
Inc., or other assets which are obsolete or otherwise considered surplus), or
execute any financing statements covering the Collateral in favor of any secured
party or Person other than Lender;
C. Purchase or otherwise acquire all or substantially all of the
assets or business of any Person or other entity; or liquidate, dissolve, merge
or consolidate, or commence any proceedings therefore, except pursuant to the
Merger Agreement; or, except in the ordinary and normal course of its business
as now conducted, sell (including, without limitation, the selling of any
property or other asset accompanied by the leasing back of the same) any assets
including any fixed assets, any property, or other assets necessary for the
continuance of its business as now conducted; and
D. Declare or pay any dividend or make any other distribution on any
of its capital stock now outstanding or hereafter issued or purchase, redeem or
retire any of such stock other than in dividends or distributions payable in
Borrower's or any such Subsidiary's capital stock.
7. AFFIRMATIVE COVENANTS. Borrower affirmatively covenants that so long
as any loans, obligations or liabilities remain outstanding or unpaid to Lender
or the commitment of Lender hereunder is in effect, it will:
A. Use its best efforts to obtain the Required Consents;
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B. Upon the failure by Borrower to pay any and all amounts due under
this Agreement on the Maturity Date, transfer all of its right, title and
interest in, to and under the Tissue Biorepository to Lender;
C. Furnish Lender from time to time such financial statements and
financial information as Lender may reasonably request and inform Lender
immediately upon the occurrence of a material adverse change therein;
D. Promptly notify Lender of (a) any attachment or other legal process
levied against any of the Collateral, and (b) any information received by
Borrower relative to the Collateral, including other Persons obligated in
connection therewith, which may materially and adversely affect the value of the
Collateral or the rights and remedies of Lender in respect thereto;
E. Reimburse Lender upon demand for any and all legal costs, including
reasonable attorneys' fees, and other expenses incurred in collecting any sums
payable by Borrower hereunder, enforcing any term or provision of this Loan
Agreement, the Notes or the General Security Agreement;
F. Maintain and preserve all rights, franchises and other authority
adequate and necessary for the conduct of its business and maintain and preserve
its existence in the state of its incorporation and any other state(s) in which
Borrower conducts its business, except where the failure to do so would not have
a Material Adverse Effect;
G. Pay and discharge, before the same becomes delinquent and penalties
accrue thereon, all taxes, assessments and governmental charges upon or against
it or any of its properties, and any of its other liabilities at any time
existing, except to the extent and so long as: (1) the same are being contested
in good faith and by appropriate proceedings in such manner as not to cause any
Material Adverse Effect or the loss of any right of redemption from any sale
thereunder; and (2) it shall have set aside on its books reserves (segregated to
the extent required by GAAP);
H. Maintain a standard and modern system of accounting in accordance
with GAAP on a basis consistently maintained; permit Lender's representatives to
have access to, and to examine its properties, books and records relating to the
Collateral at all reasonable times and upon reasonable notice and subject to any
confidentiality agreements between Borrower and Lender; provided that Lender
shall use its best efforts to not interfere with the conduct of Borrower's
business;
I. Maintain its properties, equipment and facilities in good order and
repair (ordinary wear and tear excepted);
8. ADVANCE LIMITATIONS. The occurrence of any one or more of the
following shall constitute an "Advance Limitation": (a) Termination of the
Merger Agreement, the License Agreement or any Loan Document; (b) Material
breach be made by Borrower of any warranty, statement, promise, term or
condition, contained herein, in any other Loan Document, in the Merger Agreement
or in the License Agreement, which breach shall have a Material Adverse Effect
and shall not have been cured within any applicable cure period; (c) Borrower
defaults in the repayment of any principal of or the payment of any interest on
any indebtedness for money borrowed exceeding in the aggregate principal amount
$100,000 or breaches or violates any term or provision of any promissory note,
loan agreement, mortgage, indenture or other evidence of such indebtedness
pursuant to which amounts outstanding in the aggregate exceed $100,000 if the
effect of such breach is to permit the acceleration of such indebtedness; (d)
Borrower becomes insolvent or makes an assignment for the benefit of creditors;
(e) Any proceeding be commenced by Borrower under any Bankruptcy,
reorganization, arrangement, readjustment of debt or moratorium law or statute
or, any such a proceeding is commenced against Borrower and is not dismissed or
stayed within thirty (30) days (provided that no Loans will be made prior to the
dismissal of
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such proceeding); (f) Any material money judgment or writ of attachment,
garnishment or execution, be entered against Borrower or issued against any
property of Borrower which is not fully covered by insurance (subject to
reasonable deductibles) and remains unvacated, unbonded, unstayed or unpaid or
undischarged for more than thirty (30) days (whether or not consecutive) or in
any event later than five (5) days prior to the date of any proposed sale
thereunder.
9. REMEDIES. Upon the occurrence and during the continuation of (a)
the failure by Borrower to pay in full the amount of all principal and interest
due on the Maturity Date, (b) any breach by Borrower of the negative covenants
set forth in SECTION 6.B. hereof, or (c) any Advance Limitation set forth in
SECTION 8(d) OR 8(e) (each an "Event of Default"or collectively, "Events of
Default"), Lender may, at its option and without demand first made and without
notice to Borrower, do any one or more of the following: (i) Terminate its
obligation to make loans to Borrower as provided in SECTION 1 hereof; (ii)
Declare all sums secured hereby immediately due and payable; (iii) Immediately
take possession of the Collateral wherever it may be found, using all legally
permissible means to do so, or require Borrower to assemble the Collateral and
make it available to Lender at a place designated by Lender which is reasonably
convenient to Borrower and Lender, and Borrower waives all claims for damages
due to or arising from or connected with any such taking; (iv) Proceed in the
foreclosure of Lender's security interest and sale of the Collateral in any
manner permitted by law, or provided for herein; (v) Sell, lease or otherwise
dispose of the Collateral at public or private sale, with or without having the
Collateral at the place of sale, and upon terms and in such manner as Lender may
determine, and Lender may purchase same at any such sale; (vi) Retain the
Collateral in full satisfaction of the obligations secured thereby to the extent
permitted under the Uniform Commercial Code; or (vii) Exercise any remedies of a
secured party under the Uniform Commercial Code. Prior to any such disposition,
Lender may, at its option, cause any of the Collateral to be repaired or
reconditioned in such manner and to such extent as Lender may deem advisable,
and any sums expended therefor by Lender shall be repaid by Borrower and secured
hereby. Lender shall have the right to enforce one or more remedies hereunder
successively or concurrently, and any such action shall not estop or prevent
Lender from pursuing any further remedy which it may have hereunder or by law.
If a sufficient sum is not realized from any such disposition of the Collateral
to pay all obligations secured by this Loan Agreement, Borrower hereby promises
and agrees to pay Lender any deficiency.
10. APPLICABLE LAW; JURISDICTION. This Agreement is made under, and
shall be construed and enforced in accordance with the laws of the State of
Delaware applicable to agreements made and to be performed solely therein,
without giving effect to principles of conflicts of law. In any action between
or among any of the parties, whether arising out of this Agreement or otherwise:
(a) each of the parties irrevocably and unconditionally consents and submits to
the exclusive jurisdiction and venue of the state and federal courts located in
Maryland; (b) if any such action is commenced in a state court, then, subject to
applicable law, no party shall object to the removal of such action to any
federal court located in ▇▇▇▇▇▇▇▇▇▇ County, Maryland; (c) each of the parties
irrevocably waives the right to trial by jury; and (d) each of the parties
irrevocably consents to service of process by first class certified mail, return
receipt requested, postage prepaid, to the address at which such party is to
receive notice in accordance with Section 8.7 of the Merger Agreement.
11. NOTICES. Unless otherwise provided in this Agreement, all notices
or demands by an party relating to this Agreement or any other Loan Document
shall be in writing and shall be personally delivered or sent by a recognized
overnight delivery service, certified mail, postage prepaid, return receipt
requested, or by telefacsimile to Lender or to Borrower, as the case may be, at
its addresses set forth below:
If to Borrower: Oncormed, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇)▇▇▇-▇▇▇▇
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with a copy to: ▇▇▇▇▇▇▇, Phleger & ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ,Esq.
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to Lender: Gene Logic Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇▇▇ Godward LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
12. MISCELLANEOUS PROVISIONS.
A. Nothing herein shall in any way limit the effect of the
conditions set forth in any other security or other agreement executed by
Borrower, but each and every condition hereof shall be in addition thereto.
B. The parties acknowledge that Borrower and Lender have
previously executed the Mutual Non-Disclosure Agreement dated January 27, 1998
(the "Non-Disclosure Agreement"), which Non-Disclosure Agreement shall continue
in full force and effect in accordance with its respective terms and which
Non-Disclosure Agreement shall be applicable to any information obtained
pursuant to any of the Loan Documents.
C. This Agreement shall be binding upon and inure to the benefit
of and be enforceable by Lender, Borrower and each of their respective
successors and assigns. None of the parties, or their successors and assigns,
may assign or transfer any of their respective rights, benefits or obligations
under the Loan Documents without the prior written consent of the other party.
Any transfer without such prior consent shall be void.
D. No failure or delay on the part of Lender, in the exercise of
any power, right or privilege hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise thereof.
E. All rights and remedies existing under this Loan Agreement or
any other Loan Document are cumulative to, and not exclusive of, any rights or
remedies otherwise available.
F. All headings and captions in this Loan Agreement and any
related documents are for convenience only and shall not have any substantive
effect.
G. This Loan Agreement may be executed in counterparts, each of
which when so delivered shall be deemed an original, but both counterparts shall
constitute but one and the same instrument. Each such agreement shall become
effective upon the execution of a counterpart hereof or thereof by the parties
hereto and execution and delivery of the Loan Documents.
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IN WITNESS WHEREOF, each party hereto has caused this Loan Agreement to be
executed and delivered by its duly authorized officer on the date first set
forth above.
LENDER: BORROWER:
GENE LOGIC INC., ONCORMED, INC.,
a Delaware corporation a Delaware corporation
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------- ------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President & CEO Title: CEO
LIST OF EXHIBITS AND SCHEDULES:
EXHIBIT A: Definitions
SCHEDULE 1 TO EXHIBIT A: List of Specific Permitted Liens
SCHEDULE 2 TO EXHIBIT A: List of Biorepository Contracts
EXHIBIT B: Form of Promissory Note
EXHIBIT C: Form of Borrowing Notice
EXHIBIT D: Form of Opinion of Counsel to Borrower
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EXHIBIT A
DEFINITIONS
"ADVANCE LIMITATION" has the meaning set forth in SECTION 8.
"BIOREPOSITORY CONTRACTS" means all of the contracts listed on SCHEDULE 2
attached hereto and incorporated herein by this reference.
"COLLATERAL" means any and all personal property of Borrower which is
assigned or hereafter is assigned to Lender as security or in which Lender now
has or hereafter acquires a security interest, or pursuant to the terms of the
General Security Agreement or otherwise.
"EVENT OF DEFAULT" has the meaning set forth in SECTION 9.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other Person as may be approved by the significant segment of the accounting
profession, which are applicable to the circumstances as of the date of
determination.
"GENERAL SECURITY AGREEMENT" means that certain General Security dated of
even date herewith, made by Borrower in favor of Lender.
"LICENSE AGREEMENT" means that certain Non-Exclusive License Agreement`
dated of even date herewith, made by Borrower in favor of Lender.
"LIEN" means any mortgage, pledge, security interest, lien or other charge
or encumbrance, including the lien or retained security title of a conditional
vendor, upon or with respect to any property or assets.
"LOAN ACCOUNT" has the meaning set forth in SECTION 1.
"LOAN DOCUMENTS" means this Loan Agreement and the General Security
Agreement dated of even date herewith, each as executed by Borrower in favor of
Lender, together with all other documents entered into or delivered pursuant to
any of the foregoing, in each case as originally executed or as the same may
from time to time be modified, amended, supplemented or restated.
"LOANS" means the Loans advanced pursuant to SECTION 1.
"MATERIAL ADVERSE EFFECT" shall have the meaning set forth in the
Merger Agreement.
"MATURITY DATE" has the meaning set forth in SECTION 1.B.
"MERGER AGREEMENT" means that certain Agreement and Plan of Merger
and Reorganization dated July 6, 1998, by and among Lender, Gene Logic
Acquisition Corp. and Borrower.
"PERMITTED LIENS" means the following:
Exhibit A
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(1) liens and security interests existing as of this date and
disclosed in SCHEDULE 1 attached hereto and incorporated herein by this
reference;
(2) liens for taxes, fees, assessments or other governmental charges
or levies, either not delinquent or being contested in good faith by
appropriate proceedings;
(3) liens and security interests (a) upon or in any equipment
acquired or held by Borrower to secure the purchase price of such
equipment or indebtedness incurred solely for the purpose of financing
the acquisition of such equipment and in an amount not greater than the
purchase price thereof or (b) existing on such equipment at the time of
its acquisition, provided that the lien and security interest is
confined solely to the property so acquired and improvements thereon, and
the proceeds of such equipment;
(4) liens consisting of leases or subleases and licenses and
sublicenses granted to others in the ordinary course of Borrower's
business not interfering in any material respect with the business of
Borrower and any interest or title of a lessor or licensor under any
lease or license, as applicable;
(5) liens securing claims or demands of materialmen, mechanics,
carriers, warehousemen, landlords and other like persons or entities
imposed without action of such parties, provided that the payment
thereof is not yet required;
(6) liens incurred or deposits made in the ordinary course of
Borrower's business in connection with worker's compensation,
unemployment insurance, social security and other like laws;
(7) liens arising from judgments, decrees or attachments in
circumstances not constituting an Event of Default;
(8) easements, reservations, rights-of-way, restrictions, minor
defects or irregularities in title and other similar charges or
encumbrances affecting real property not interfering in any material
respect with the ordinary conduct of Borrower's business;
(9) liens in favor of customs and revenue authorities arising as a
matter of law to secure payment of customs duties in connection with the
importation of goods;
(10) liens that are not prior to Lender's security interest which
constitute rights of set-off of a customary nature;
(11) any interest or title of a lessor in equipment or property
subject to any; and
(12) any liens arising from the filing of any financing statements
relating to leases.
"PERSON" means any individual, sole proprietorship, partnership, joint
venture, trust, unincorporated organization, association, corporation, limited
liability company, institution, public benefit corporation, firm, joint stock
company, estate, entity or governmental agency.
"PROPERTY" means any interest in any kind of property or asset, whether
real, personal or mixed, whether tangible or intangible.
Exhibit A
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"REQUIRED CONSENTS" means any and all third party consents required by the
Biorepository Contracts which are necessary in order to effectuate an assignment
to Lender of all of Borrower's right, title and interest in, to and under the
Biorepository Contracts.
"SUBORDINATED DEBT" means indebtedness of Borrower, the repayment of
principal of which is fully subordinated in time and right of payment to the
Loans, and has been approved in Lender's sole and absolute discretion and in
writing.
"TISSUE BIOREPOSITORY" means Borrower's library of tissue samples which is
primarily located at Childrens Hospital Los Angeles in Los Angeles, California
and Borrower's rights with respect to a library of tissue samples located at
▇▇▇▇▇▇▇▇▇ University Medical School in Omaha, Nebraska.
Exhibit A
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SCHEDULE 1 TO EXHIBIT A
SPECIFIC PERMITTED LIENS
Schedule 1 to Exhibit A
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SCHEDULE 2 TO EXHIBIT A
LIST OF BIOREPOSITORY CONTRACTS
1. The Biorepository Agreement dated as of January 29, 1998, by and between
Borrower and Childrens Hospital Los Angeles.
2. The Services Agreement dated as of July 31, 1995, by and between Borrower
and The Hereditary Cancer Institute.
3. The Sponsored Research and License Agreement dated as of
September 1, 1995, by and among Borrower, The Hereditary Cancer Institute and
▇▇▇▇▇▇▇▇▇ University Medical School.
Schedule 2 to Exhibit A
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EXHIBIT B
FORM OF PROMISSORY NOTE
$
-------------------------------- [Date]
[City], Maryland
FOR VALUE RECEIVED, ONCORMED, INC., a Delaware corporation ("BORROWER"),
hereby unconditionally promises to pay to the order of GENE LOGIC INC., a
Delaware corporation ("LENDER") or the holder hereof, in lawful money of the
United States of America and in immediately available funds, the principal sum
of _________________________ Dollars ($__________) (the "LOAN") together with
accrued and unpaid interest thereon, each due and payable on the dates and in
the manner set forth below.
This Promissory Note is one of the Notes referred to in and is executed
and delivered in connection with that certain Loan Agreement dated as of July 6,
1998, and executed by Borrower in favor of Lender (as the same may from time to
time be amended, modified or supplemented or restated, the "LOAN AGREEMENT").
Additional rights and obligations of Lender are set forth in the Loan Agreement.
All capitalized terms used herein and not otherwise defined herein shall have
the respective meanings given to them in the Loan Agreement.
1. PRINCIPAL REPAYMENT. The outstanding principal amount of the Loan shall
be due and payable on the Maturity Date. This Note may be prepaid, in whole or
in part, in integral payments of $10,000.
2. INTEREST RATE. Interest at the rate set forth in the Loan Agreement
shall accrue on the sum of the daily unpaid principal balance of the Loan
Account outstanding on each day in lawful money of the United States of America,
from the date of the advance of the initial Loan through the Maturity Date.
3. PLACE OF PAYMENT. All amounts payable hereunder shall be payable
at the office of Lender, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, unless
another place of payment shall be specified in writing by the holder hereof.
4. APPLICATION OF PAYMENTS. Payment on this Note shall be applied first to
accrued interest, and thereafter to the outstanding principal balance hereof.
5. SECURED NOTE. The full amount of this Note is secured by the Collateral
identified and described as security therefor in the General Security Agreement
(as defined in the Loan Agreement) executed by and delivered by Borrower.
6. DEFAULT. Each of the Events of Default specified in the Loan Agreement
shall be "EVENT OF DEFAULT" hereunder.
Exhibit B
14
7. WAIVER. Borrower waives presentment and demand for payment, notice of
dishonor, protest and notice of protest of this Note, and shall pay all costs of
collection when incurred, including, without limitation, reasonable attorneys'
fees, costs and other expenses.
8. GOVERNING LAW. This Note shall be governed by, and construed and
enforced in accordance with, the laws of the State of Delaware, excluding
conflict of laws principles that would cause the application of laws of any
other jurisdiction.
9. SUCCESSORS AND ASSIGNS. The provisions of this Note shall be binding on
any successor to Borrower and shall inure to the benefit of and extend to any
holder hereof. Neither of the parties, or their successors and assigns, may
assign or transfer any of their respective rights, benefits or obligations under
this Note without the prior written consent of the other party. Any transfer
without such prior consent shall be void.
BORROWER ONCORMED, INC.
By:
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Printed Name:
------------------
Title:
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Exhibit B
15
EXHIBIT C
FORM OF BORROWING NOTICE
Date:
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TO: GENE LOGIC INC.
--------------------------
--------------------------
Attention:
----------------
RE: Loan Agreement dated as of July 6, 1998 (as amended, modified,
supplemented or restated from time to time, the "Loan Agreement"), by and
among ONCORMED, INC., a Delaware corporation, as the borrower (the
"Borrower") and GENE LOGIC INC., as the lender (the "Lender")
Ladies and Gentlemen:
The undersigned refers to the Loan Agreement, the terms defined therein used
herein as defined, and hereby gives you notice irrevocably, pursuant to Section
2 of the Loan Agreement, of the borrowing of a Loan as specified herein:
1. The borrowing date, which shall be a business day, of the requested
borrowing of a Loan is ___________ (the "Borrowing Date").
2. The aggregate amount of the requested borrowing is $_________.
The undersigned hereby certifies that the following statements are true on
the date hereof, and will be true on the date of the proposed borrowing, before
and after giving effect thereto and to the application of the proceeds
therefrom, as applicable:
A. the representations and warranties of the Borrower contained in Section
5 of the Loan Agreement are true, accurate and complete in all material respects
with the same effect as though made on and as of such date (except to the extent
such representations and warranties relate to an earlier date, in which case
they are true, accurate and complete in all material respects as of such date);
B. no Default or Event of Default has occurred and is continuing, or would
result from such proposed borrowing; and
Exhibit C
16
C. the requested borrowing will not cause the aggregate principal amount
of all outstanding Loans to exceed the Commitment as of the designated Borrowing
Date.
ONCORMED, INC.
a Delaware corporation
By:
----------------------------
Name:
--------------------------
Title:
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Exhibit C
17
EXHIBIT D
FORM OF OPINION
Exhibit D
18
We have acted as counsel for Oncormed, Inc. (the "Borrower"), in connection with
a loan of money to Borrower by Gene Logic Inc. (the "Lender") under the Loan
Agreement dated as of July __, 1998 (the "Loan Agreement"). We are rendering
this opinion pursuant to Section __ of the Loan Agreement. Except as otherwise
defined herein, capitalized terms used but not defined herein have the meanings
given to them in the Loan Agreement.
As used herein, the term "Loan Documents" shall mean the Loan Agreement and the
General Security Agreement executed by Borrower in favor of Lender dated July
__, 1998.
On the basis of the foregoing, in reliance thereon, and with the foregoing
qualifications, we are of the opinion that:
1. Borrower has been duly incorporated and is a validly existing
corporation in good standing under the laws of the State of Delaware.
2. The execution and delivery by Borrower of the Loan Agreement and of any
other Loan Documents to which Borrower is a party and the borrowing of Borrower
pursuant thereto do not violate any provision of Borrower's Certificate of
Incorporation or Bylaws.
3. The Loan Agreement and any other Loan Documents to which Borrower is a
party have been duly and validly authorized, executed and delivered by the
Borrower and constitute valid and binding agreements of Borrower enforceable in
accordance with their respective terms, except as enforceability may be subject
to or limited by (a) general equity principles and to limitations on the
availability of equitable relief including specific performance; (b) the effect
of applicable bankruptcy, insolvency, reorganization, arrangement, moratorium or
other laws relating to or affecting the rights of creditors generally.
This opinion is intended solely for your benefit and is not to be made available
to or relied upon by any other person, firm, or entity without our prior written
consent.
Very truly yours,
By
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