EXHIBIT 10.58
FIRST AMENDED AND RESTATED TERM NOTE
$8,375,000.00 December 31, 2003
FOR VALUE RECEIVED, the undersigned, ARIAD PHARMACEUTICALS, INC., a
Delaware corporation, ARIAD CORPORATION, a Delaware corporation, and ARIAD GENE
THERAPEUTICS, INC., a Delaware corporation (hereinafter sometimes referred to
collectively as the "BORROWERS and each singly as a BORROWER"), HEREBY
UNCONDITIONALLY PROMISES TO PAY TO THE ORDER OF CITIZENS BANK OF MASSACHUSETTS,
a Massachusetts bank (the "LENDER") at the office of the Lender, located at 28
State Street, Boston, Massachusetts 02109 (or such other place as the holder
hereof may specify in writing), in lawful money of the United States of America
and in immediately available funds, the principal amount of EIGHT MILLION THREE
HUNDRED SEVENTY-FIVE THOUSAND AND 00/100 DOLLARS ($8,375,000.00) (the "LOAN").
The Borrowers jointly and severally agree to pay the principal amount of the
Loan in the amounts and on the dates specified in subsection 2.5 of the Credit
Agreement dated March 12, 2003, as amended by Amendment No. 1 to Credit
Agreement, dated of even date herewith (as the same may be further amended,
modified, supplemented, extended or restated from time to time, the "CREDIT
AGREEMENT") by and between the Lender and the Borrowers. The Borrowers further
agree to pay interest on the unpaid principal balance of the Loan from time to
time outstanding from the Closing Date until paid, at the rates and at the times
provided in the Credit Agreement.
This Note is issued pursuant to the Credit Agreement, and the holder
hereof is entitled to, and shall have, all of the benefits of the Credit
Agreement, and all other agreements, instruments, guarantees and other documents
executed and delivered in connection therewith and herewith. All capitalized
terms not defined herein but defined in the Credit Agreement shall have the
meanings given to such terms in the Credit Agreement.
This Note is secured as provided in the Security Documents. Reference
is hereby made to the Security Documents for a description of the properties and
assets in which a security interest has been granted, the nature and extent of
the security, the terms and conditions upon which the security interests were
granted and the rights of the holder of this Note in respect thereof.
Upon the occurrence and during the continuance of any one or more of
the Events of Default, all amounts then remaining unpaid on this Note shall
become, or may be declared to be, immediately due and payable, all as provided
in the Credit Agreement.
All parties now and hereafter liable with respect to this Note, whether
maker, principal, surety, guarantor, endorser or otherwise, hereby waive
presentment, demand, protest and all other notices of any kind.
This Note shall be binding upon the Borrowers and their successors and
assigns, and shall inure to the benefit of the Lender and its successors,
assigns, endorsees and transferees.
All of the obligations and liabilities of the Borrowers under the Note
are joint and several.
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EACH BORROWER AND THE LENDER HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A
TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS
NOTE, ANY OF THE OTHER FINANCING DOCUMENTS OR ANY OF THE TRANSACTIONS
CONTEMPLATED HEREIN OR THEREIN, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH
OF DUTY CLAIMS AND ALL OTHER COMMON LAW OR STATUTORY CLAIMS.
This Note and the other Financing Documents are executed and delivered
under seal and shall be construed in accordance with and governed by the laws of
The Commonwealth of Massachusetts, without giving effect to the conflict of law
provisions thereof. Each Borrower submits itself to the non-exclusive
jurisdiction of the Courts of The Commonwealth of Massachusetts for all purposes
with respect to the Financing Documents and such Borrower's relationship with
the Lender.
This First Amended and Restated Term Note replaces and supersedes an
earlier note in the amount of $7,500,000.00 from the Borrowers to the Lender.
IN WITNESS WHEREOF, the undersigned has executed this Note under its
seal as of the date first written above.
WITNESS TO ALL: ARIAD PHARMACEUTICALS, INC.
By: /s/ Edward M. Fitzgerald
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/s/ Kerrie Kneeland Name: Edward M. Fitzgerald
- ---------------------------- Title: Senior Vice President and
Name: Kerrie Kneeland Chief Financial Officer
ARIAD CORPORATION
By: /s/ Edward M. Fitzgerald
----------------------------------
Name: Edward M. Fitzgerald
Title: Vice President and
Chief Financial Officer
ARIAD GENE THERAPEUTICS, INC.
By: /s/ Harvey J. Berger, M.D.
----------------------------------
Name: Harvey J. Berger, M.D.
Title: Chief Executive Officer
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COMMONWEALTH OF MASSACHUSETTS
Middlesex County, ss. December 23, 2003
Then personally appeared the above-named Edward M. Fitzgerald of ARIAD
Pharmaceuticals, Inc., and acknowledged the foregoing instrument to be his free
act and deed and the free act and deed of ARIAD Pharmaceuticals, Inc., before
me.
/s/ Barbara D. Matyskiel
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Notary Public
My commission expires: 3/15/07
[AFFIX NOTARIAL SEAL]
COMMONWEALTH OF MASSACHUSETTS
Middlesex County, ss. December 23, 2003
Then personally appeared the above-named Edward M. Fitzgerald of ARIAD
Corporation, and acknowledged the foregoing instrument to be his free act and
deed and the free act and deed of ARIAD Corporation, before me.
/s/ Barbara D. Matyskiel
------------------------------
Notary Public
My commission expires: 3/15/07
[AFFIX NOTARIAL SEAL]
COMMONWEALTH OF MASSACHUSETTS
Middlesex County, ss. December 23, 2003
Then personally appeared the above-named Harvey J. Berger, M.D. of
ARIAD Gene Therapeutics, Inc., and acknowledged the foregoing instrument to be
his free act and deed and the free act and deed of ARIAD Gene Therapeutics,
Inc., before me.
/s/ Barbara D. Matyskiel
------------------------------
Notary Public
My commission expires: 3/15/07
[AFFIX NOTARIAL SEAL]
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