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EXHIBIT 10.132
SECURED/SUBORDINATED PROMISSORY NOTE
$834,421.28 SEPTEMBER 28, 2000
South San Francisco, California
FOR VALUE RECEIVED, Xxxxxxxxxxx Associates, a general partnership
("BORROWER"), hereby unconditionally promises to pay to the order of Axys
Pharmaceuticals, Inc., a Delaware corporation, ("LENDER"), in lawful money of
the United States of America and in immediately available funds, the principal
sum of Eight Hundred Thirty Four Thousand, Four Hundred Twenty One Dollars and
Twenty Eight Cents ($834,421.28) (the "LOAN") together with accrued and unpaid
interest thereon, each due and payable on the dates and in the manner set forth
below.
1. SECURED NOTE. This Promissory Note is the Note referred to in and is
executed and delivered in connection with that certain Deed of Trust With
Assignment of Rents dated as of even date herewith and executed by Xxxxxxxx in
favor of Xxxxxx (as the same may from time to time be amended, modified or
supplemented or restated, the "Deed of Trust"). Additional rights of Lender are
set forth in the Deed of Trust. All capitalized terms used herein and not
otherwise defined herein shall have the respective meanings given to them in the
Deed of Trust. The full amount of this Note is secured by the property
identified and described as security therefor in the Deed of Trust. Borrower
shall not, directly or indirectly, create, permit or suffer to exist, and shall
defend such property against and take such other action as is necessary to
remove, any lien on or in the property, or in any portion thereof, except as
permitted pursuant to the Deed of Trust and this Note.
2. PRINCIPAL REPAYMENT.
2.1 ORIGINAL TERM. The outstanding principal amount of the Loan
shall be due and payable on February 1, 2001 (the "MATURITY DATE"), unless such
date is extended in accordance with the terms of Section 2.2, below.
2.2 BORROWER'S OPTION TO EXTEND MATURITY DATE. Provided that no
Event of Default shall then exist, Borrower may extend the Maturity Date until
August 31, 2001, by giving written notice to Xxxxxx (no later than January 1,
2001) of Xxxxxxxx's election to exercise its option to extend the Maturity Date
to August 31, 2001 in accordance with the terms of this Note.
3. INTEREST RATE. Borrower further promises to pay interest on the
outstanding principal amount hereof from the date hereof until February 1, 2001,
at the rate of seven and one half percent (7.5%) per annum compounded daily, and
following such date at the rate of the Bank of America's main San Xxxxxxxxx
xxxxxx reference rate (or successor rate selected by Lender in the event such
rate no longer exists) plus one percent or the maximum rate permissible by law
(which under the laws of the State of California shall be deemed to be the laws
relating to permissible rates of interest on commercial loans), whichever is
less, until paid in full. Interest shall be due and payable monthly in arrears
not later than the first day of each calendar month for
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the preceding month and shall be calculated on the basis of a 360 day year for
the actual number of days elapsed.
4. PLACE OF PAYMENT. All amounts payable hereunder shall be payable at
the office of Lender, 000 Xxxxxxx Xxx, Xxxxx Xxx Xxxxxxxxx, XX 00000, unless
another place of payment shall be specified in writing by Xxxxxx.
5. APPLICATION OF PAYMENTS. Payment on this Note shall be applied first
to the costs of collection, if any, then to accrued interest, and thereafter to
the outstanding principal balance hereof.
6. DEFAULT. Each of the following events shall be an "EVENT OF DEFAULT"
hereunder:
(a) Borrower fails to pay timely any of the principal amount due
under this Note on the date the same becomes due and payable or any accrued
interest or other amounts due under this Note on the date the same becomes due
and payable;
(b) Borrower files any petition or action for relief under any
bankruptcy, reorganization, insolvency or moratorium law or any other law for
the relief of, or relating to, debtors, now or hereafter in effect, or makes any
assignment for the benefit of creditors or takes any corporate action in
furtherance of any of the foregoing; or
(c) An involuntary petition is filed against Xxxxxxxx (unless
such petition is dismissed or discharged within sixty (60) days) under any
bankruptcy statute now or hereafter in effect, or a custodian, receiver,
trustee, assignee for the benefit of creditors (or other similar official) is
appointed to take possession, custody or control of any property of Borrower.
(d) Any default under the Deed of Trust.
Upon the occurrence of an Event of Default hereunder, all unpaid principal,
accrued interest and other amounts owing hereunder shall, at the option of
Xxxxxx, and, in the case of an Event of Default pursuant to (b) or (c) above,
automatically, be immediately due, payable and collectible by Lender pursuant to
applicable law.
7. SUBORDINATION. The indebtedness evidenced by this Note is hereby
expressly subordinated, to the extent and in the manner hereinafter set forth,
in right of payment to the prior payment in full of the Senior Indebtedness.
7.1 "SENIOR INDEBTEDNESS" shall mean, unless expressly
subordinated to or made on a parity with the amounts due under this Note, the
principal of, unpaid interest on and amounts reimbursable, fees, expenses, costs
of enforcement and other amounts due in connection with (a) indebtedness of 000
Xxxxxxxxxxx Xxxx, X.X. to San Diego National Bank, secured by the property
subject to the lien of the Deed of Trust (the "Construction Financing"), and (b)
any such indebtedness or any debentures, notes or other evidence of indebtedness
issued in exchange for such Construction Financing.
7.2 INSOLVENCY PROCEEDINGS. If there shall occur any
receivership, insolvency, assignment for the benefit of creditors, bankruptcy,
reorganization, or arrangements
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with creditors (whether or not pursuant to bankruptcy or other insolvency
laws), sale of all or substantially all of the assets, dissolution, liquidation,
or any other marshaling of the assets and liabilities of Borrower, (a) no amount
shall be paid by Borrower in respect of the principal of, interest on or other
amounts due with respect to this Note at the time outstanding, unless and until
the principal of and interest on the Senior Indebtedness then outstanding shall
be paid in full, and (b) no claim or proof of claim shall be filed by or on
behalf of Lender which shall assert any right to receive any payments in respect
of the principal of and interest on this Note except subject to the payment in
full of the principal of and interest on all of the Senior Indebtedness then
outstanding.
7.3 DEFAULT ON SENIOR INDEBTEDNESS. If there shall occur an event
of default which has been declared in writing with respect to any Senior
Indebtedness, as defined therein, or in the instrument under which it is
outstanding, permitting the holder to accelerate the maturity thereof and Lender
shall have received written notice thereof from the holder of such Senior
Indebtedness, then, unless and until such event of default shall have been cured
or waived or shall have ceased to exist, or all Senior Indebtedness shall have
been paid in full, no payment shall be made in respect of the principal of or
interest on this Note unless within one hundred eighty (180) days after the
happening of such event of default the maturity of such Senior Indebtedness
shall not have been accelerated. Not more than one notice may be given to Lender
pursuant to the terms of this SECTION during any 360 day period.
7.4 FURTHER ASSURANCES. By acceptance of this Note Xxxxxx agrees
to execute and deliver customary forms of subordination agreement requested from
time to time by the holders of Senior Indebtedness and, as a condition to
Xxxxxx's rights hereunder, Borrower may require that Lender execute such forms
of subordination agreement, provided that such forms shall not impose on Lender
terms less favorable than those provided herein.
7.5 OTHER INDEBTEDNESS. No indebtedness which does not constitute
Senior Indebtedness shall be senior in any respect to the indebtedness
represented by this Note.
7.6 SUBROGATION. Subject to the payment in full of all Senior
Indebtedness, Lender shall be subrogated to the rights of the holder(s) of such
Senior Indebtedness (to the extent of the payments or distributions made to the
holder(s) of such Senior Indebtedness pursuant to the provisions of this SECTION
7) to receive payments and distributions of assets of Borrower applicable to the
Senior Indebtedness. No such payments or distributions applicable to the Senior
Indebtedness shall, as between Borrower and its creditors, other than the
holders of Senior Indebtedness and Lender, be deemed to be a payment by Borrower
to or on account of this Note; and for purposes of such subrogation, no payments
or distributions to the holders of Senior Indebtedness to which Lender would be
entitled except for the provisions of this SECTION 7 shall, as between Borrower
and its creditors, other than the holders of Senior Indebtedness and Xxxxxx, be
deemed to be a payment by Borrower to or on account of the Senior Indebtedness.
7.7 NO IMPAIRMENT. Subject to the rights, if any, of the holders
of Senior Indebtedness under this SECTION 7 to receive cash, securities or other
properties otherwise payable or deliverable to Lender, nothing contained in this
SECTION 7 shall impair, as between Borrower and Lender, the obligation of
Borrower, subject to the terms and conditions hereof, to
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pay to Lender the principal hereof and interest hereon as and when the same
become due and payable, or shall prevent Lender, upon default hereunder, from
exercising all rights, powers and remedies otherwise provided herein or by
applicable law.
7.8 LIEN SUBORDINATION. Any lien or security interest of Xxxxxx,
whether now or hereafter existing in connection with the amounts due under this
Note, on any assets or property of Borrower or any proceeds or revenues
therefrom which Lender may have at any time as security for any amounts due and
obligations under this Note, including, without limitation, any lien on or in
the property subject to the lien of the Deed of Trust, shall be subordinate to
all liens or security interests now or hereafter granted to a holder of Senior
Indebtedness by 000 Xxxxxxxxxxx Xxxx, X.X. or by law notwithstanding the date,
order or method of attachment or perfection of any such lien or security
interest or the provisions of any applicable law.
7.9 APPLICABILITY OF PRIORITIES. The priority of the holder of
the Senior Indebtedness provided for herein with respect to security interests
and liens are applicable only to the extent that such security interests and
liens are enforceable and perfected and have not been avoided; if a security
interest or lien is judicially determined to be unenforceable or unperfected or
is judicially avoided with respect to any claim of the holder of the Senior
Indebtedness or any part thereof, the priority provided for herein shall not be
available to such security interest or lien to the extent that it is avoided or
determined to be unenforceable or unperfected. The foregoing notwithstanding,
Lender covenants and agrees that it shall not challenge, attack or seek to avoid
any security interest or lien to the extent that it secures any holder of the
Senior Indebtedness. Nothing in this SECTION 7.8 affects the operation of any
subordination of indebtedness or turnover of payment provisions hereof, or of
any other agreements among any of the parties hereto.
7.10 RELIANCE OF HOLDERS OF SENIOR INDEBTEDNESS. Lender, by its
acceptance hereof, shall be deemed to acknowledge and agree that the foregoing
subordination provisions are, and are intended to be, an inducement to and a
consideration of each holder of Senior Indebtedness, whether such Senior
Indebtedness was created or acquired before or after the creation of the
indebtedness evidenced by this Note, and each such holder of Senior Indebtedness
shall be deemed conclusively to have relied on such subordination provisions in
acquiring and holding, or in continuing to hold, such Senior Indebtedness.
8. 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. The right to plead any and all statutes of
limitations as a defense to any demands hereunder is hereby waived to the full
extent permitted by law.
9. GOVERNING LAW. This Note shall be governed by, and construed and
enforced in accordance with, the laws of the State of California, excluding
conflict of laws principles that would cause the application of laws of any
other jurisdiction.
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10. SUCCESSORS AND ASSIGNS. The provisions of this Note shall inure to
the benefit of and be binding on any successor to Borrower and shall extend to
any holder hereof.
BORROWER Xxxxxxxxxxx Associates, a California general
partnership
By: /s/ XXXXX X.X. XXXXXX
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Printed Name: Xxxxx X.X. Xxxxxx
Title: Co-Managing General Partner
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