Payment of this Note is subordinate to the payment of all obligations of the
Borrower hereof to XXXXXXXXX & XXXXX GUARANTY FINANCE, LLC, pursuant to the
terms of a Subordination Agreement dated as of September 27, 1996.
PROMISSORY NOTE
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BORROWER: LENDER:
CV THERAPEUTICS, INC. XXXXXXXXX & XXXXX TRANSITION CAPITAL, LLC
0000 Xxxxxx Xxxxx Xxx Xxxx Xxxxxx
Xxxx Xxxx, XX 00000 Xxx Xxxxxxxxx, XX 00000
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Principal Amount: $ 3,000,000.00 Interest Rate: 9.0 %
Date of Note: September 27, 1996
PROMISE TO PAY CV THERAPEUTICS, INC. ("Borrower") promises to pay to XXXXXXXXX &
XXXXX TRANSITION CAPITAL, LLC ("Lender"), or order, in lawful money of the
United States of America, the principal amount of Three Million Dollars
($3,000,000.00), or so much as may be outstanding, together with interest on the
unpaid outstanding principal balances from September 27, 1996 until such
balance is paid in full.
PAYMENT OF ACCRUED INTEREST: Except as provided below, Borrower will pay all
interest accrued on this Note in arrears on the first day of each month
following a month in which any principal is outstanding (or October 1, 1996, in
the case of the first month). Interest will be computed on a 365/360 day basis
compounding monthly; that is in each month 1/360 of the Nine Percent (9.0%)
annual interest rate, will be multiplied by (I) the sum of (a) the outstanding
principal balance and (b) accumulated interest through the end of the prior
month and (II) the actual number of days that the principal was outstanding in
such month.
Beginning as of the Date of this Note first written above and continuing until
(but not including) March 1, 1998, Borrower may defer payment of all accrued
interest unless (a) after September 1, 1996 Borrower sells shares of its stock
(or options or other rights to acquire such shares) with aggregate gross
proceeds of at least Thirteen Million Dollars ($13,000,000) prior to March 1,
1998, or (b) there is an occurrence of any EVENT OF DEFAULT under BUSINESS LOAN
AGREEMENT (as defined below). When Borrower fails to qualify to defer interest
payments, all accrued unpaid interest will be due within ten (10) days of such
failure, except in the case of an Event of Default in which case all accrued
unpaid interest will be immediately due.
PAYMENT OF PRINCIPAL: Subject to Borrower's right to prepay this outstanding
principal under this Note, beginning on April 1, 1998 and continuing through and
including September 1, 1999, Borrower will make payment to Lender a principal
payment of One Hundred Sixty-Six Thousand Six Hundred Sixty-Six and 67/100s
Dollars ($166,666.67) on the first day of each month.
Borrower will pay Lender at Lender's address shown above or at such other place
as Lender may designate in writing. Unless otherwise agreed or required by
applicable law, payments will be applied first to accrued unpaid interest, then
to principal, and any remaining amount to any unpaid collection costs and late
charges.
FIXED INTEREST RATE. The interest rate on this Note is nine percent (9.0%) per
annum, or, if lower, the maximum rate of interest allowed by applicable law.
PREPAYMENT. Borrower may prepay without penalty all or a portion of the amount
owed earlier than it is due, provided however that any principal amount repaid
shall not be available to Borrower for future advances. Any prepayment of
principal shall be credited against the payments of principal set forth above in
the reverse order in which such payments would otherwise be required.
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Promissory Note, Page 1
PROMISSORY NOTE
(Continued)
DEFAULT. Borrower will be in default if any Event of Default occurs under the
Business Loan Agreement.
LENDER'S RIGHTS. Upon the occurrence and during the continuance of an Event of
Default, Lender may declare the entire unpaid principal balance on this Note and
all accrued unpaid interest immediately due and payable, without notice, and
then Borrower will pay that amount. Upon Borrower's failure to pay all amounts
declared due pursuant to this section, including failure to pay upon final
maturity, Lender at its option, may also, if permitted under applicable law, do
one or both of the following: (a) increase the interest rate on this Note up to
fourteen percent (14%) per annum, or, if lower, up to the maximum interest
amount allowable by applicable law, and (b) add any unpaid accrued interest to
principal and such sum will bear interest therefrom until paid at the rate
provided in this Note. Borrower agrees to pay all reasonable out of pocket
expenses of Lender in connection with the collection and enforcement of this
Note. This includes, subject to any limits under applicable law, Lender's
attorneys' fees and legal expenses whether or not there is a lawsuit, including
attorneys' fees and legal expenses for bankruptcy proceedings (including efforts
to modify or vacate any automatic stay or injunction), appeals, and any
anticipated post-judgment collections services. Borrower also will pay any
court costs, in addition to all other sums provided by law. This Note has been
delivered to Lender and accepted by Lender in the State of California. If there
is a lawsuit, Borrower agrees upon Lender's request to submit to the
jurisdiction of any federal or California state court located in San Francisco,
the State of California. This Note shall be governed by and construed in
accordance with the laws of the State of California.
LOAN AGREEMENT. This Note is subject to and shall be governed by all the terms
and conditions of the Business Loan Agreement, dated September 27, 1996,
between the Borrower and Lender, as amended from time to time (the "Business
Loan Agreement").
OUT-OF-POCKET EXPENSES. Borrower shall pay to Lender all of Lender's reasonable
out-of-pocket expenses as described in Section 4.3 of the Business Loan
Agreement.
GENERAL PROVISIONS. Lender may delay or forgo enforcing any of its rights or
remedies under this Note without losing them. Borrower and any other person who
signs, guarantees or endorses this Note may, to the extent allowed by law, waive
any applicable statute of limitations, presentment, demand for payment, protest
and notice of dishonor. Upon any change in the terms of this Note, and unless
otherwise expressly stated in writing, no party who signs this Note whether as
maker, guarantor, accommodation maker or endorser, shall be released from
liability. All such parties agree that Lender may renew, extend (repeatedly and
for any length of time) or modify this Note, or release any party or guarantor;
or impair, fail to realize upon or perfect Lender's security interest in the
collateral; and take any other action deemed necessary by Lender without the
consent of or notice to anyone.
COLLATERAL: This Note is secured by certain personal property collateral of the
Borrower as more thoroughly described in the Security Agreement (as defined in
the Business Loan Agreement).
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Promissory Note, Page 2
PROMISSORY NOTE
(Continued)
PRIOR TO SIGNING THIS NOTE BORROWER READ AND UNDERSTOOD ALL THE PROVISIONS OF
THIS NOTE. BORROWER AGREES TO THE TERMS OF THE NOTE AND ACKNOWLEDGES RECEIPT OF
A COMPLETED COPY OF THE NOTE.
BORROWER:
CV THERAPEUTICS, INC.
By: /s/ Xxxxxxxx Xxxxxxxx
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Name: Xxxxxxxx Xxxxxxxx
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Title: Chief Financial Officer
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Promissory Note, Page 3
