Exhibit 10.9
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PROMISSORY NOTE
$5,000,000.00 Boston, Massachusetts
December 27, 2000
FOR VALUE RECEIVED, the undersigned Curis, Inc., a Delaware corporation
(the "Borrower") hereby promises to pay to the order of FLEET NATIONAL BANK (the
"Bank") the principal amount of Five Million and 00/100 ($5,000,000.00) Dollars
or such portion thereof as may be advanced by the Bank pursuant to (S)1.2 of the
below-defined Letter Agreement and which remains outstanding from time to time
hereunder ("Principal"), with interest, at the rate hereinafter set forth, on
the daily balance of all unpaid Principal, from the date hereof until payment in
full of all Principal and interest hereunder. As used herein, "Letter Agreement"
means that certain letter agreement of even date herewith between the Borrower
and the Bank, as same may be from time to time amended.
Interest on all unpaid Principal shall be due and payable monthly in
arrears, on the last Business Day (as defined in the Letter Agreement) of each
month, commencing on the first such date after the advance of any Principal and
continuing on the last Business Day of each month thereafter and on the date of
payment of this note in full, at a fluctuating rate per annum (computed on the
basis of a year of three hundred sixty (360) days for the actual number of days
elapsed) which shall at all times (except as described in the next sentence) be
equal to the Prime Rate, as in effect from time to time (but in no event in
excess of the maximum rate permitted by then applicable law), with a change in
the aforesaid rate of interest to become effective on the same day on which any
change in the Prime Rate is effective, immediately and without notice or demand
of any kind; provided, however, that if all or any portion of outstanding
Principal is represented by a LIBOR Loan (as defined in the Letter Agreement)
for any Interest Period (as defined in the Letter Agreement), then interest for
such Interest Period on such LIBOR Loan shall be payable at the applicable LIBOR
Interest Rate (determined as provided in the Letter Agreement) on each Interest
Payment Date (as defined in the Letter Agreement) applicable to such Interest
Period. After the occurrence and during the continuance of any Event of Default
(as defined in the Letter Agreement) interest will, at the option of the Bank,
accrue and be payable under this note at a fluctuating rate per annum which at
all times shall be equal to the sum of (i) four (4%) percent per annum plus (ii)
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the per annum rate otherwise payable under this note (but in no event in excess
of the maximum rate permitted by then applicable law). As used herein, "Prime
Rate" means that variable rate of interest per annum designated by the Bank from
time to time as its prime rate, it being understood that such rate is merely a
reference rate and does not necessarily represent the lowest or best rate being
charged to any customer. If the entire amount of any required Principal and/or
interest is not paid within ten (10) days after the same is due, the Borrower
shall pay to the Bank a late fee equal to five percent (5%) of the required
payment.
Principal of this note represents the Term Loans (as defined in the Letter
Agreement). Those Term Loans (or portions thereof) which are not made in
respect of Qualifying Leasehold Improvements (as defined in the Letter
Agreement) are hereinafter referred to as the "Tranche A Term Loans". Those
Term Loans (or portions thereof) which are made in respect of Qualifying
Leasehold Improvements are hereinafter referred to as the "Tranche B Term
Loans". Principal of
this note shall be repaid by the Borrower to the Bank as follows: Principal of
the Tranche A Term Loans will be repaid in 11 equal consecutive quarterly
installments (each in an amount equal to 1/12th of the aggregate principal
amount of the Tranche A Term Loans outstanding at the close of business on
December 31, 2001), such installments to commence March 29, 2002 and to continue
thereafter on the last Business Day of each succeeding calendar quarter through
and including September 30, 2004, plus a 12th and final payment due and payable
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on December 31, 2004 in an amount equal to all then remaining Principal
representing Tranche A Term Loans and all interest accrued but unpaid thereon.
Principal of the Tranche B Term Loans will be repaid in 11 equal consecutive
quarterly installments (each in an amount equal to 1/24th of the aggregate
principal amount of Tranche B Term Loans outstanding at the close of business on
December 31, 2001), such installments to commence March 29, 2002 and to continue
thereafter on the last Business Day of each succeeding calendar quarter through
and including September 30, 2004, plus a 12th and final "balloon" payment due
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and payable on December 31, 2004 in an amount equal to all then remaining
Principal representing Tranche B Term Loans and all interest accrued but unpaid
thereon.
The Borrower may at any time and from time to time prepay all or any
portion of the Principal of this note, without premium or penalty, but, as to
LIBOR Loans, only at the times and in the manner, and with the yield maintenance
fee (if any), provided for in the Letter Agreement. Each Principal prepayment
shall be accompanied by payment of all interest on the prepaid amount accrued
but unpaid to the date of payment. Any partial prepayment of Principal will be
applied against Principal installments (including, without limitation, the
aforesaid "balloon" payment) in inverse order of normal maturity. Under certain
circumstances, as set forth in the Letter Agreement, a prepayment of Principal
may be required.
Payments of both Principal and interest shall be made, in lawful money of
the United States in immediately available funds, at the office of the Bank
located at 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, or at such other
address as the Bank may from time to time designate.
The undersigned Borrower irrevocably authorizes the Bank to make or cause
to be made, on a schedule attached to this note or on the books of the Bank, at
or following the time of making any Term Loan and of receiving any payment of
Principal, an appropriate notation reflecting such transaction and the then
aggregate unpaid balance of Principal. Failure of the Bank to make any such
notation shall not, however, affect any obligation of the Borrower hereunder or
under the Letter Agreement. The unpaid Principal amount of this note, as
recorded by the Bank from time to time on such schedule or on such books, shall
constitute presumptive evidence of the aggregate unpaid principal amount of the
Term Loans.
The Borrower hereby (a) waives notice of and consents to any and all
advances, settlements, compromises, favors and indulgences (including, without
limitation, any extension or postponement of the time for payment), any and all
receipts, substitutions, additions, exchanges and releases of collateral, and
any and all additions, substitutions and releases of any person primarily or
secondarily liable, (b) waives presentment, demand, notice, protest and all
other demands and notices generally in connection with the delivery, acceptance,
performance, default
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or enforcement of or under this note, and (c) agrees to pay all reasonable costs
and expenses, including, without limitation, reasonable attorneys' fees,
incurred or paid by the Bank in enforcing this note and any collateral or
security therefor, all whether or not litigation is commenced.
This note is the Term Note referred to in, and is entitled to the benefits
of, the Letter Agreement and is also entitled to the benefits of the Security
Agreement (as defined in the Letter Agreement). This note is subject to
prepayment (with a yield maintenance fee consequent thereon in certain cases, as
more fully described in the Letter Agreement) as set forth in the Letter
Agreement. The maturity of this note may be accelerated upon the occurrence and
during the continuance of an Event of Default, as provided in the Letter
Agreement.
THE BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES THE
RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY CLAIM BASED ON THIS NOTE OR ARISING
OUT OF, UNDER OR IN CONNECTION WITH THIS NOTE OR ANY RELATED DOCUMENTS OR OUT OF
ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN)
OR ACTIONS OF THE BANK RELATING TO THE ADMINISTRATION OF THE TERM LOANS OR
ENFORCEMENT OF THE RELATED LOAN DOCUMENTS, AND AGREES THAT THE BORROWER WILL NOT
SEEK TO CONSOLIDATE ANY SUCH ACTION WITH ANY OTHER ACTION IN WHICH A JURY TRIAL
CANNOT BE OR HAS NOT BEEN WAIVED. EXCEPT AS PROHIBITED BY LAW, THE BORROWER
HEREBY WAIVES ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY LITIGATION ANY
SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER THAN,
OR IN ADDITION TO, ACTUAL DAMAGES. THE BORROWER CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF THE BANK HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, THAT THE BANK WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE
THE FOREGOING WAIVER. THIS WAIVER CONSTITUTES A MATERIAL INDUCEMENT FOR THE
BANK TO ACCEPT THIS NOTE AND TO MAKE TERM LOANS AS CONTEMPLATED IN THE LETTER
AGREEMENT.
Executed, as an instrument under seal, as of the day and year first above
written.
CORPORATE SEAL CURIS, INC.
ATTEST:
/s/ Xxxxxx Xxxxxxxx By: /s/ Xxxxxx Xxxxxxx
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Secretary Name: Xxxxxx Xxxxxxx
Title: Senior Vice President
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