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EXHIBIT 10.2
EXECUTION COPY
LOAN AGREEMENT
Dated as of November 18, 1994
BIOVENSA INC., a Delaware corporation, (the "Borrower" or "Biovensa"),
and CTRC RESEARCH FOUNDATION, a Texas not-for-profit corporation (the
"Lender"), agree as follows:
RECITALS
WHEREAS, the Lender and its affiliates recently established the
Borrower as a wholly-owned subsidiary;
WHEREAS, the Borrower and the Lender desire to enter into an agreement
whereby the Lender will loan the Borrower various sums for general corporate
and working capital purposes; and
WHEREAS, such loans will initially be structured as a revolving line
of credit, and will eventually convert to a fixed term loan upon the occurrence
of certain specified events.
NOW, THEREFORE, in consideration of the representations, warranties,
covenants and undertakings contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the Borrower and Lender agree as follows:
SECTION 1. LOAN
SECTION 1.1. LOAN. Subject to the terms and conditions of this
Agreement, the Lender agrees to make loans to the Borrower from time to time
from the date hereof through the Maturity Date (as that term is defined in
Section 7) in an aggregate amount not to exceed Five Hundred Thousand Dollars
($500,000.00) (the "Commitment"). From the date hereof until the Conversion
Date (such period is referred to herein as the "Revolver Period"), Lender
agrees to make loans to the Borrower (the "Loan(s)") at such times and in such
amounts not to exceed the Commitment, as Borrower may request. During the
Revolver Period, Borrower may borrow, repay and reborrow hereunder, provided
that each borrowing shall be in an amount of not less than the lesser of
$10,000.00 or the remaining unused amount of the Commitment. Effective as of
the Conversion Date (as that term is defined in Section 7), any Loans
outstanding hereunder shall convert into a term loan and Lender shall have no
further obligations to make any additional Loans to Borrower nor shall Borrower
be entitled to reborrow any amounts repaid hereunder. All Loans hereunder
shall be due and payable on the Maturity Date (as the term is defined in
Section 7). Notwithstanding anything contained herein to the contrary, the
Lender shall not be required to make a Loan if, (a) after giving effect
thereto, the aggregate outstanding
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principal amount of all Loans hereunder would exceed the Commitment, or (b)
Lender does not have sufficient funds in its possession to make such Loan.
SECTION 1.2. NOTE. The Loans shall be evidenced by a promissory note
(the "Note"), substantially in the form of Exhibit A, with appropriate
insertions, dated the date hereof, payable to the order of the Lender, in the
principal amount of the Commitment, and with the amounts borrowed and repaid
and the balance endorsed on the grid by the Lender. The Lender shall, and is
hereby authorized by the Borrower to, endorse on the schedule annexed to the
Note notations with respect to each Loan specifying the date, the principal
amount thereof and the date and amount of each payment of principal made by the
Borrower with respect to such Loan. As long as the Lender is the holder of the
Note it may, at its option, in lieu of endorsing the grid, record such matters
in its books and records. The failure of the Lender to make any such notation
or recording shall not limit or otherwise affect the right of the Lender to
repayment of the Loans (including interest thereon). Such notation or
recording by the Lender shall be rebuttably presumptive evidence of the
principal balance outstanding and interest due on the Note. The principal of
the Note shall be payable in full on the Maturity Date.
SECTION 1.3. TERMINATION. The obligation of the Lender to make Loans
hereunder shall terminate immediately and without further action upon the
earlier to occur of an Event of Default or the Maturity Date.
SECTION 2, INTEREST AND REPAYMENTS
SECTION 2.1. INTEREST. (a) The unpaid principal amount from time to
time outstanding hereunder shall bear interest from the date of the Note until
paid in full, so long as no Event of Default (as hereinafter defined) has
occurred and is continuing, at a rate of per annum equal to the "Frost Prime
Rate" (as hereinafter defined) plus 0.5%. The "Frost Prime Rate" shall mean
the rate of interest per annum announced from time to time by The Frost
National Bank, Xxx Xxxxxxx, Xxxxx, 00000, as its "prime rate". The Lender
shall determine the Frost Prime Rate on the first day of each calendar month,
and such rate shall be deemed the "Frost Prime Rate" for purposes hereof for
such calendar month. Any determination of the Frost Prime Rate by the Lender
shall be conclusive absent manifest error.
(b) Upon and after the occurrence of an Event of Default
hereunder, and until such Event of Default shall be cured, the unpaid principal
amount from time to time outstanding hereunder shall bear interest at a rate
per annum equal to the Frost Prime Rate plus 3.0% provided that such interest
rate shall never exceed a maximum of eighteen percent (18.0%) per annum.
SECTION 2.2. PAYMENT OF INTEREST. Except as otherwise provided herein
(for example, in the event of voluntary prepayments or mandatory prepayments,
the occurrence of an Event of Default or otherwise), all accrued but unpaid
interest shall be paid directly to the Lender:
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(a) on the first day of each January, April, July and October of
each year, beginning with the later to occur (i) July 1, 1995 and (ii) the
first of such dates to occur after the date of the initial Loan hereunder, at
maturity and upon payment in full; and
(b) in respect of any overdue installment of principal, interest
shall be payable upon demand.
SECTION 2.3. BASIS OF COMPUTATION. Interest shall be computed for the
actual number of days elapsed on the basis of a year consisting of 365 or 366
days, as the case may be. Interest shall be calculated to include the date a
Loan is made and exclude the date such Loan is paid or prepaid.
SECTION 2.4. REPAYMENTS. (a) The Borrower agrees to pay on the first
day of each January, April, July and October, commencing one year after the
Conversion Date, an amount equal to one-eighth of the principal amount
outstanding on the Conversion Date pursuant to the Note. The entire amount of
unpaid principal and accrued but paid interest, if any, outstanding as of the
Maturity Date shall become due and payable on the Maturity Date. No premium
shall be payable in connection with any payment pursuant to this Section
2.4(a). The quarterly payments provided for by this Section 2.4(a) shall be in
addition to the quarterly payments of interest provided for by Section 2.2.
(b) The Borrower shall have the right, by given written notice to
the Lender by not later than 5:00 p.m. (San Antonio time) on the business day
preceding the date of such payment, to prepay all or any portion of the Note,
without any premium or penalty.
(c) Any principal amount of the Loans repaid during the Revolver
Period may be reborrowed by the Borrower hereunder, subject to the terms and
conditions hereof, prior to the Conversion Date.
SECTION 2.5. SETOFF. At any time and without notice of any kind, any
account, deposit or other indebtedness owing by the Lender or any of its
affiliates to the Borrower, and any securities or other property of the
Borrower delivered to or left in the possession of the Lender or any of its
affiliates or nominee or bailee thereof, may be set off against and applied in
payment of any obligation hereunder, whether due or not, and the Borrower
hereby grants to the Lender a continuing security interest in, and assigns to
the Lender, such accounts, property deposits and indebtedness as collateral
security for the payment of such obligations.
SECTION 3. MANNER OF BORROWING
SECTION 3.1. NOTICE OF BORROWING. The Borrower shall give a written
notice of borrowing to the Lender of each requested Loan during the Revolver
Period by not later than 11:00 a.m. (San Antonio time) on the fifth business
day preceding the business day on which a Loan is to be made. On the requested
business day of a Loan, the Lender shall make available to the Borrower the
amount of such Loan by transferring the amount thereof in immediately available
funds for credit to an account maintained by the Borrower as specified in the
notice of borrowing.
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SECTION 3.2. CONDITIONS PRECEDENT TO EACH LOAN
(a) REPRESENTATIONS AND WARRANTIES. At the date of each Loan, the
Borrower's representations and warranties set forth herein shall be true and
correct in all material respects as at such date with the same effect as though
those representations and warranties had been made on and as of such date.
(b) No Default. At the time of each Loan, and immediately after
giving effect to each Loan, the Borrower shall be in compliance with all the
terms and provisions set forth herein on its part to be observed or performed,
and no Event of Default or Unmatured Event of Default shall have occurrence and
be continuing at the time of any Loan, or would result from the making of any
Loan.
SECTION 3.3. LOANS. The application by the Borrower for any Loan
shall be deemed a representation and warranty by the Borrower that the
statements in Section 3.2 are true and correct on and as of the date of each
such Loan.
SECTION 4. REPRESENTATIONS AND WARRANTIES
To include the Lender to make the Loans hereunder, the Borrower
represents and warrants to the Lender that:
SECTION 4.1. ORGANIZATION. Borrower is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware
and has full power and authority to own and operate its property, to carry on
its business as proposed to be conducted, to enter into this Agreement and to
issue the Note as contemplated by this Agreement.
SECTION 4.2. AUTHORIZATION: NO CONFLICT. The borrowings hereunder,
the execution and delivery of the Note and the performance by the Borrower of
its obligations under this Agreement and the Note have been authorized by all
necessary corporate action, have received all necessary governmental approval
(if any shall be required) and do not and will not contravene or conflict with
any provision of law or of the certificate of incorporation of the Borrower or
of any agreement binding upon the Borrower.
SECTION 4.3. LIENS. Other than agreements (a) entered into between
Borrower and Lender or (b) which may be entered into pursuant to the Private
Placement, none of the assets of the Borrower are subject to any mortgage,
pledge, title retention lien, or other lien, encumbrance or security interest,
except for liens arising in the ordinary course of business for sums not due or
sums being contested in good faith and by appropriate proceedings, but not
involving any deposits or advances or borrowed money or the deferred purchase
price of property or services.
SECTION 4.4. ADVERSE CONTRACTS. The Borrower is not a party to any
agreement or instrument or subject to any charter or other corporate
restriction, nor is it subject to any judgment, decree or order of any court or
governmental body, which may have a material and adverse effect on the
business, financial condition, operations or business prospects of the
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Borrower or on the ability of the Borrower to perform its obligations under
this Agreement or the Note. The Borrower has not, nor with reasonable
diligence should have had, knowledge of or notice that it is in default in the
performance, observance or fulfillment of any of the obligations, covenants or
conditions contained in any such agreement, instrument, restriction, judgment,
decree or order.
SECTION 4.5. REGULATION U. The Borrower is not engaged principally
in, nor is one of the Borrower's important activities, the business of
extending credit for the purpose of purchasing or carrying "margin stock"
within the meaning of Regulation U of the Board of Governors of the Federal
Reserve System as now and from time to time hereinafter in effect.
SECTION 4.6. LITIGATION AND CONTINGENT LIABILITIES. No litigation
(including derivative actions), arbitration proceedings or governmental
proceedings are pending or, to the knowledge of the Borrower, threatened
against the Borrower which would (singly or in the aggregate), if adversely
determined, have a material and adverse effect on the financial condition,
continued operations or prospects of the Borrower.
SECTION 4.7. SUBSIDIARIES. The Borrower has no subsidiaries.
SECTION 4.8. PURPOSE. The proceeds of the Loans shall be used by the
Borrower for working capital in the conduct of its business.
SECTION 5. COVENANTS
Until all obligations of the Borrower hereunder and under the Note are
paid and fulfilled in their entirety, the Borrower agrees that it shall comply
with the following covenants, unless the Lender consents otherwise in writing:
SECTION 5.1. CORPORATE EXISTENCE, MERGERS, ETC. The Borrower shall
preserve and keep in force and effect its legal existence and all rights,
franchises, licenses and privileges necessary for the conduct of its business,
and will not liquidate, dissolve, or merge into or consolidate with any other
entity, or sell, lease, transfer or otherwise dispose of all or a substantial
part of its assets.
SECTION 5.2. REPORTS, CERTIFICATES AND OTHER INFORMATION. The
Borrower shall furnish to the Lender:
(a) AUDITED ANNUAL STATEMENTS. Within 90 days after the end of each
fiscal year of the Borrower, a copy of annual financial statements of the
Borrower prepared in conformity with generally accepted accounting principals
applied on a consistent basis, duly certified by independent certified public
accountants of recognized standing satisfactory to the Lender, accompanied by
an opinion without significant qualification of such accountants.
(b) OTHER INFORMATION. From time to time such other information,
financial or otherwise, concerning the Borrower as the Lender may reasonably
request.
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SECTION 5.3. INSPECTION. The Borrower shall permit the Lender and
its agents at any time during normal business hours to inspect their properties
and to inspect and make copies of their books and records.
SECTION 5.4. INDEBTEDNESS. Unless the Lender shall give its prior
written consent, the Borrower shall not incur, permit to remain outstanding,
assume or in any way become committed for Indebtedness, except (i) Indebtedness
incurred hereunder or pursuant to the Private Placement, and (ii) accounts
payable arising in the Borrower's ordinary course of business which are paid
upon customary and usual terms and as to which no interest or other charge is
payable.
SECTION 5.5. LIENS. Unless the Lender shall give its prior written
consent, during the term of this Agreement and until the Note is paid in full,
the Borrower shall not create, suffer or permit to exist any mortgage, lien,
security interest, pledge or other encumbrance of any kind or nature upon any
of its assets now or hereafter owned or acquired, or acquire or agree to
acquire any property or assets of any character under any conditional sale
agreement or other title retention agreement, but this Section shall not be
deemed to apply to any liens arising pursuant to the Private Placement, or any
liens of landlords, contractors, laborers or supplymen, tax liens or liens
securing performance or appeal bonds or other similar liens or charges arising
out of the Borrower's business, provided that tax liens are removed before
related taxes become delinquent and other liens are promptly removed, in either
case unless contested in good faith and by appropriate proceedings and as to
which adequate reserves shall have been established.
SECTION 5.6. TAXES. The Borrower shall pay and discharge all taxes,
assessments and governmental charges or levies imposed upon it, upon its income
or profits or upon any of its properties, prior to the date on which penalties
attach thereto, and all lawful claims for labor, materials and supplies when
due, except that no such tax, assessment, charge, levy or claim need be paid
which is being contested in good faith by appropriate proceedings and as to
which adequate reserves shall have been established, and as to which no
foreclosure, distraint, sale or similar proceedings have commenced.
SECTION 5.7. CONTINUANCE IN PRESENT BUSINESS. The Borrower shall
continue to engage substantially in the business of manufacturing and
commercially developing therapeutic agents and pharmaceutical products for the
treatment of human cancer.
SECTION 5.8. COMPLIANCE WITH THE LAW. The Borrower shall comply with
all applicable laws, rules, regulations and orders, the failure to comply with
which could have a material adverse impact on the business, properties, assets,
operations, condition or prospects of the Borrower, including without
limitation the Borrower's ability to pay or perform its obligations to the
Lender hereunder or under the Notes; provided that the Borrower shall not be
required to comply with any law, rule, regulation or order if the Borrower is
contesting the applicability or validity thereof in good faith by appropriate
proceedings, no foreclosure, distraint, sale or similar proceedings have
commenced, and the Borrower has established adequate reserves with respect
thereto in accordance with generally accepted accounting principles.
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SECTION 5.9. USE OF PROCEEDS.
(a) GENERAL. The proceeds of the Loans shall be used by the
Borrower for working capital in the conduct of its business and the Borrower
shall not use or permit any proceeds of the Loans to be used, either directly
or indirectly, for the purpose, whether immediate, incidental or ultimate, of
"purchasing or carrying any margin stock" within the meaning of Regulation U or
X of the Board of Governors of the Federal Reserve System, as amended from time
to time. If requested by the Lender, the Borrower will furnish to the Lender a
statement in conformity with the requirements of Federal Reserve Form U-1 to
the foregoing effect. No part of the proceeds of the Loans will be used for
any purpose which violates or is inconsistent with the provisions of Regulation
U or X of the Board of Governors of the Federal Reserve System.
(b) TENDER OFFERS AND GOING PRIVATE. The Borrower shall not use
(or permit to be used) any proceeds of the Loans to acquire any security in any
transaction which is subject to Section 13 or 14 of the Securities Exchange Act
of 1934, as amended, or any regulations or rulings thereunder.
SECTION 6. DEFAULT
SECTION 6.1. EVENTS OF DEFAULT. Each of the following occurrences is
hereby defined as an "Event of Default":
(a) Default in the due and punctual payment of any interest due
under the Note and the continuation thereof for five (5) calendar days; or
(b) Default in the due and punctual payment of any principal due
under the Note; or
(c) Any representation, warranty, certificate, financial
statement, report, notice or other writing furnished by or on behalf of the
Borrower to the Lender is false or misleading in any material respect on the
date as of which the facts therein set forth are stated or certified, or deemed
to be stated or certified; or
(d) The Borrower shall fail to comply with any provision hereof,
which failure does not otherwise constitute an Event of Default, and such
failure shall continue for thirty (30) days after written notice thereof to the
Borrower by the Lender; or
(e) Any suit, action or other proceeding (judicial or
administrative) commenced against the Borrower, or with respect to any assets
of the Borrower, shall threaten to have a material and adverse effect on the
future operations of the Borrower; or a final judgment or settlement in excess
of $50,000.00 shall be entered in, or agreed to in respect of, any such suit,
action or proceeding and any such judgment shall not be effectively bonded,
vacated, discharged, stayed on appeal or otherwise contested in good faith by
appropriate proceedings within thirty (30) days after the entry thereof; or
(f) The Borrower shall be dissolved or terminated; or
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(g) The Borrower shall: (i) become insolvent; or (ii) be unable,
or admit in writing its inability, to pay its debts as they mature; or (iii)
make a general assignment for the benefit of creditors or to an agent
authorized to liquidate any substantial amount of its property; or (iv) be
adjudicated a bankrupt; or (v) file a petition in bankruptcy or to effect a
plan or other arrangement with creditors; or (vi) file an answer to a
creditor's petition (admitting the material allegations thereof) for an
adjudication of bankruptcy or to effect a plan or other arrangement with
creditors; or (vii) apply to a court for the appointment of a receiver or
similar official appointed for any of its assets; or (viii) have a receiver or
similar official appointed for any of its assets, or, if such receiver or
similar official is appointed without the consent of the Borrower, such
appointment shall not be discharged within sixty (60) days after his
appointment; or (ix) a petition described in (v) is filed against the Borrower
and remains undismissed for a period of sixty (60) consecutive days.
SECTION 6.2. REMEDIES. Upon the occurrence of any Event of Default
set forth in subsections (a)-(f) of Section 6.1 and during the continuance
thereof, the Lender may declare the Note and any other amounts owed to the
Lender to be immediately due and payable, whereupon the Note and any other
amounts owed to the Lender shall forthwith become immediately due and payable.
Upon the occurrence of any Event of Default set forth in subsection (g) of
Section 6.1, the Note and any other amounts owed to the Lender shall be
immediately and automatically due and payable without action of any kind on the
part of the Lender or any other holder of the Note. The Borrower expressly
waives presentment, demand, notice or protest of any kind in connection
herewith. The Lender shall promptly give the Borrower notice of any such
declaration, but failure to do so shall not impair the effect of such
declaration. No delay or omission on the part of the Lender in exercising any
power or right hereunder or under the Note shall impair such right or power or
be construed to be a waiver of any Event of Default or any acquiescence
therein, nor shall any single or partial exercise of any power or right
hereunder preclude other or further exercise thereof, or the exercise of any
other power or right.
SECTION 7. DEFINITIONS
"Conversion Date" shall mean the initial closing date of the
transaction(s) referred to herein as the Private Placement.
"Indebtedness" shall mean all current and noncurrent liabilities of
the Borrower, including without limitation (i) obligations for borrowed money,
(ii) obligations representing the deferred purchase price of property, (iii)
obligations, whether or not assumed, secured by liens or payable out of the
proceeds or production from property now or hereafter owned or acquired by the
Borrower, (iv) all obligations of the Borrower, whether direct or contingent,
arising under or in connection with letters of credit and banker's acceptances,
(v) any obligation which is secured or which is evidenced by a note, acceptance
or other instrument, (vi) capitalized lease obligations, and (vii) accounts
payable of the Borrower.
"Maturity Date" shall mean the earlier to occur of (a) December 31,
1998 or (b) three years subsequent to the Conversion Date.
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"Private Placement" shall mean a transaction, or series of related
transactions whereby Biovensa receives at least Four Million Dollars $4,000,000
in the aggregate from unaffiliated third parties in exchange for equity
securities issued and sold to such third parties by Biovensa.
"Subsidiary" shall mean a corporation of which more than 50% of the
outstanding capital stock ordinarily entitled to vote for the election of
directors is owned directly or indirectly by the Borrower.
"Unmatured Event of Default" shall mean an event which would become an
Event of Default with notice or the passage of time or both.
SECTION 8. MISCELLANEOUS
SECTION 8.1. WAIVER OF DEFAULT. The Lender may, by written notice to
the Borrower, at any time and from time to time, waive any default in the
performance or observance of any condition, covenant or other term hereof, or
any Event of Default, which shall be for such period and subject to such
conditions as shall be specified in any such notice. In the case of any such
waiver, the Lender and the Borrower shall be restored to their former position
and rights hereunder and under the Note, respectively, and any default or Event
of Default so waived shall be deemed to be cured and not continuing; but no
such waiver shall extend to or impair any right consequent thereon or to any
subsequent or other default or Event of Default.
SECTION 8.2. NOTICES. All notices, requests, demands or other
communications to or upon a party hereto shall be in writing and shall be
delivered by mail, sent by courier or by telecopy or personally delivered to
such party at its address set forth below, or at such other address as to which
such party may hereafter notify the others in writing.
If to the Borrower:
Biovensa Inc.
14960 Omicron
Xxx Xxxxxxx, Xxxxx 00000
Attn: Xxxxxxx X. Love
Facsimile No.: (000) 000-0000
If to the Lender:
CTRC Research Foundation
14960 Omicron
Xxx Xxxxxxx, Xxxxx 00000
Attn: Xxxxx X. Xxxxxxxx
Facsimile No.: (000) 000-0000
Any notice shall be deemed given, if mailed properly addressed, on the fifth
business day after the placing thereof in the United States mail, postage
prepaid; if transmitted by telecopier, when
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receipt is acknowledged; if personally delivered, at the time delivered by
hand; and if sent by overnight courier, the next succeeding business day after
timely delivery to the courier.
SECTION 8.3. NONWAIVER: CUMULATIVE REMEDIES. No failure to exercise,
and no delay in exercising, on the part of the Lender of any right, power or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies of
the Lender herein provided are cumulative and not exclusive of any rights or
remedies provided by law.
SECTION 8.4. SURVIVAL OF AGREEMENTS. All agreements, representations
and warranties made herein shall survive the delivery of the Note and the
making of the Loans hereunder and shall expire upon payment in full of the
Borrower's obligations hereunder and under the Note.
SECTION 8.5. SUCCESSORS. This Agreement shall, upon execution and
delivery by the Borrower, and acceptance by the Lender, become effective and
shall be binding upon and inure to the benefit of the Borrower, the Lender and
their respective successors and assigns, except that the Borrower may not
transfer or assign any of its rights or interest hereunder without the prior
written consent of the Lender.
SECTION 8.6. CAPTIONS. Captions in this Agreement are for
convenience of reference only and shall not define or limit any of the terms or
provisions hereof. References herein to Sections or provisions without
reference to the document in which they are contained are references to this
Agreement.
SECTION 8.7. SINGULAR AND PLURAL. Unless the context requires
otherwise, whenever used herein the singular shall include the plural and vice
versa, and the use of one gender shall also denote the others where
appropriate.
SECTION 8.8. COUNTERPARTS. This Agreement may be executed by the
parties on any number of separate counterparts, and by each party on separate
counterparts; each counterpart shall be deemed an original instrument; and all
of the counterparts taken together shall be deemed to constitute one and the
same instrument.
SECTION 8.9. INDEMNITY. Without limiting any other provision of this
Agreement, the Borrower agrees to indemnify, hold harmless and reimburse the
Lender and its directors, officers, employees, attorneys and agents
("Indemnified Parties") for, from and against any and all losses, claims,
liabilities, suits, actions, proceedings and expenses (including without
limitation reasonable attorneys' fees, legal costs and expenses, and reasonable
time charges of attorneys who may be employees of the Lender) incurred or paid
by it or any of them as a result of or in connection with any actions taken or
omitted to be taken pursuant to this Agreement, except such as may result
solely and directly from the gross negligence or willful misconduct of such
Indemnified Party.
SECTION 8.10. CONSTRUCTION. This Agreement, the Note and any
document or instrument executed in connection herewith shall be governed by,
and construed and interpreted
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in accordance with, the internal laws of the State of Texas, and shall be
deemed to have been executed in the State of Texas.
SECTION 8.11. SUBMISSION TO JURISDICTION: VENUE. TO INDUCE THE
LENDER TO MAKE THE LOAN, AS EVIDENCED BY THE NOTE AND THIS AGREEMENT, THE
BORROWER IRREVOCABLY AGREES THAT, SUBJECT TO THE LENDER'S SOLE AND ABSOLUTE
ELECTION, ALL SUITS, ACTIONS OR OTHER PROCEEDINGS IN ANY WAY, MANNER OR
RESPECT, ARISING OUT OF OR FROM OR RELATED TO THIS AGREEMENT, THE NOTE OR ANY
DOCUMENT EXECUTED IN CONNECTION HEREWITH, SHALL BE SUBJECT TO LITIGATION IN
COURTS HAVING SITUS WITHIN BEXAR COUNTY, TEXAS. THE BORROWER HEREBY CONSENTS
AND SUBMITS TO THE JURISDICTION OF ANY LOCAL, STATE OR FEDERAL COURT LOCATED
WITHIN BEXAR COUNTY, TEXAS. THE BORROWER HEREBY WAIVES ANY RIGHT IT MAY HAVE
TO REQUEST OR DEMAND TRIAL BY JURY, TO TRANSFER OR CHANGE THE VENUE OF ANY
SUIT, ACTION OR OTHER PROCEEDING BROUGHT AGAINST THE BORROWER BY THE LENDER IN
ACCORDANCE WITH THIS SECTION OR TO CLAIM THAT ANY SUCH PROCEEDING HAS BEEN
BROUGHT IN AN INCONVENIENT FORUM.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed, as of the day and year first above written.
BIOVENSA INC.
/s/ XXXXXXX X. LOVE
---------------------------------
By: Xxxxxxx X. Love
Its: President
CTRC RESEARCH FOUNDATION
/s/ XXXXX X. XXXXXXXX
---------------------------------
By: Xxxxx X. Xxxxxxxx
Its: Chief Operating Officer
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EXHIBIT A
NOTE
$500,000.00 San Antonio, Texas
November 18 , 1994
FOR VALUE RECEIVED, on or before the Maturity Date, (as that term is
defined in the Loan Agreement referred to in the next paragraph), Biovensa
Inc., a Delaware, corporation promises to pay to the order of CTRC Research
Foundation (the "Lender") at its office at 14960 Omicron, Xxx Xxxxxxx, Xxxxx
00000, the lesser of the principal sum of FIVE HUNDRED THOUSAND DOLLARS
($500,000.00), or the amount outstanding as endorsed on the grid attached to
this Note (or recorded in the Lender's books and records, if the Lender is the
holder hereof). Such notation or recording by the Lender shall be rebuttably
presumptive evidence of the principal balance due on this Note.
This Note evidences indebtedness incurred under, and is subject to,
the terms and provisions of a Loan Agreement dated as of November 18 , 1994
(and, if amended, all amendments thereto) between the undersigned and the
Lender (the "Loan Agreement"). The undersigned promises to pay interest at the
rate or rates and times established under the Loan Agreement. Reference is
hereby made to the Loan Agreement for a statement of its terms, definitions and
provisions, including those under which this Note is required to be and may be
paid prior to its due date or have its due date accelerated, and this Note is
expressly subject to the terms and conditions of the Loan Agreement.
Payments of both principal and interest are to be made in immediately
available funds in lawful money of the United States of America.
The undersigned agrees to pay or reimburse the Lender and any other
holder hereof for all costs and expenses of seeking advice in regard to,
preparing any amendments to or waivers under, enforcing, and preserving its
rights under this Note or any document or instrument executed in connection
herewith (including legal fees and reasonable time charges of attorneys who may
be employees of the Lender, whether in or out of court, in original or
appellate proceedings or in bankruptcy). The undersigned irrevocably waives
presentment, protest, demand and notice of any kind in connection herewith.
This Note is made under and governed by the internal laws of the State
of Texas, and shall be deemed to have been executed in the State of Texas.
BIOVENSA INC.
-------------------------------
By: Xxxxxxx X. Love
Its: President
13
CTRC RESEARCH FOUNDATION
-------------------------------
By: Xxxxx X. Xxxxxxxx
Its: Chief Operating Officer
14
LOAN AND PAYMENTS OF PRINCIPAL
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AMOUNT OF
AMOUNT OF PRINCIPAL PAID UNPAID PRINCIPAL NOTATION
DATE LOAN OR PREPAID BALANCE MADE BY
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