AMENDMENT TO LOAN AGREEMENT
This Amendment To Loan Agreement (this "Amendment") is dated
as of April 30, 1999, and entered into by and between CV
Therapeutics, Inc. ("Debtor"), a Delaware corporation, located at
0000 Xxxxxx Xxxxx, Xxxx Xxxx, Xxxxxxxxxx 00000 and Biotech
Manufacturing Ltd., a wholly-owned subsidiary of Biogen, Inc.
("Secured Party"), located at Xx. Xxxx'x Xxxx, Xxx Xxxxxx, Xx.
Xxxxxx, Xxxxxx XX00X, Channel Islands.
Recitals
A. Debtor and Secured Party are parties to that certain
Loan Agreement dated as of March 7, 1997, as amended from time to
time (the "Loan Agreement"). All capitalized terms used herein
without definition shall have the meaning ascribed to them in the
Loan Agreement.
B. Under the Loan Agreement, Debtor issued a Promissory
Note dated March 10, 1997, in favor of Secured Party in the
amount of Twelve Million Dollars ($12,000,000) (the "Note").
C. Under this Amendment, the parties desire to amend
certain provisions of the Loan Agreement and the Note as provided
below.
Agreement
Now Therefore, in consideration of the foregoing, and the
representations, warranties, and conditions set forth below, the
parties hereto, intending to be legally bound, hereby agree to
amend the Loan Agreement and Note as follows:
1. Amendments.
(a) Section 2.1(b) of the Loan Agreement is hereby deleted in
its entirety and replaced with the following:
"On the EFFECTIVE DATE CVT shall execute and deliver to
BML unsecured note, substantially in the form set forth
in Appendix A attached hereto and made a part hereof
(the "Note"), evidencing the Loan. CVT hereby
covenants not to incur or maintain any additional
senior indebtedness while any amount under the Note
remains unpaid. The Note shall be subordinated to all
debt of CVT existing as of March 7, 1999 and may be
prepaid by CVT at any time without penalty, in cash or,
in case of the Loan Remainder, in CVT Common Stock,
registered for resale, priced at its then Fair Market
Value (as defined in Section 2.1(i) below), subject to
the provisions of subsections (g) and (i) of this
Section 2.1."
(b) The first sentence of Section 2.1(c) of the Loan Agreement
is hereby deleted in its entirety and replaced with the
following:
"The Note shall bear interest on the outstanding
principal amount thereof at a rate per annum equal
to Prime (as defined below) plus one and one half
percent (1.5%)."
(c) The following is added to the end of Section 5.1 of the Loan
Agreement:
"Notwithstanding the foregoing, all of CVT's
representations, warranties and covenants contained in
this Agreement shall terminate upon the termination or
expiration of this Agreement. The covenants set forth
in Section 2.1(b) shall survive termination or
expiration of this Agreement until all amounts due
under the Note have been repaid in full."
(d) The first sentence under the "Interest" section of the Note
shall be deleted and replaced with the following:
"Interest shall accrue on the outstanding
principal balance hereunder at a rate per annum
equal to Prime plus 1.5%."
(e) Section (j) under the "Event of Default" section of the Note
shall be deleted in its entirety and replaced with the following:
There occurs a Change of Control with Borrower.
"Change of Control" shall mean the occurrence of any of
the following events: (i) the acquisition, whether
directly or indirectly, by any person or entity,
including a "group" as defined in Section 13(d)(3) of
the Exchange Act, of more than forty percent (40%) of
the Common Stock of Borrower; (ii) Borrower shall merge
or consolidate with or into another corporation with
the effect that the persons who were the shareholders
of Borrower immediately prior to the effective time of
such merger or consolidation hold less than fifty-one
percent (51%) of the combined voting power of the
outstanding securities of the surviving corporation of
such merger or the corporation resulting from such
consolidation ordinarily (and apart from rights
accruing under special circumstances) having the right
to vote in the election of directors; or (iii) at any
time during any calendar year, fifty percent (50%) or
more of the members of the full Board of Directors of
Borrower shall have resigned or been removed or
replaced.
2. Miscellaneous.
(a) Waivers and Amendments. Any provision of this Amendment may
be amended, waived or modified only upon the written consent of
Debtor and Secured Party.
(b) Governing Law. This Amendment and all actions arising out
of or in connection with this Amendment shall be governed by and
construed in accordance with the laws of the State of Delaware,
without regard to the conflicts of law provisions of the State of
Delaware or of any other state.
(c) Successors and Assigns. The rights and obligations of Debtor
and Secured Party shall be binding upon and benefit the
successors, assigns, heirs, administrators and transferees of the
parties.
(d) Entire Agreement. This Amendment together with the Loan
Agreement, the BML Agreement, the Biogen Agreement, the Stock
Purchase Agreement and the Note, constitute the full and entire
understanding and agreement between the parties with regard to
the subjects hereof and thereof.
(e) Severability of this Agreement. If any provision of this
Amendment shall be judicially determined to be invalid, illegal
or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or
impaired thereby.
(f) Counterparts. This Amendment may be executed in any number
of counterparts, each of which shall be an original, but all of
which together shall be deemed to constitute one instrument.
BIOTECH MANUFACTURING LTD. CV THERAPEUTICS, INC.
By /s/ Xxxxxxx X. Xxxx By /s/ Xxxxx Xxxxx
Name Xxxxxxx X. Xxxx Name Xxxxx X. Xxxxx
Title Director Title Chairman & CEO
