AMENDMENT NO. 1 TO LOAN AGREEMENT
This Amendment No. 1 to Loan Agreement is entered into as of this 12th day
of June 1998 by and between Biotech Manufacturing Ltd., with principal
offices located at Xxxxxxx Xxxxx, Xxxx Xxxxxx, Xx. Xxxxxx, Xxxxxx XX0 0XX,
Channel Islands ("BML") and CV Therapeutics, Inc., with principal offices
located at 0000 Xxxxxx Xxxxx, Xxxx Xxxx, XX 00000 ("CVT").
WHEREAS, BML and CVT are parties to a certain Loan Agreement, dated as of
March 7, 1997 (the "Loan Agreement") under which BML has agreed to make
funds available to CVT in the form of a loan or loans of up to $12,000,000
under certain conditions;
WHEREAS, under the Loan Agreement, a portion of the loan amount is not
available to CVT until receipt by CVT of the Phase II Performance Assessment
Study milestone payment from Biogen, Inc. ("Biogen") pursuant to a certain
Research Collaboration and License Agreement between Biogen and CVT, dated
as of March 7, 1997, (the "U.S. Research Agreement");
WHEREAS, the parties desire to amend the Loan Agreement to change the
trigger for availability of a certain portion of the loan;
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained in this Amendment, the parties hereby agree as follows:
1. Definitions.
The capitalized terms used in this Amendment shall have the meanings
assigned to such terms in the Loan Agreement or in the U.S. Research
Agreement, as the case may be.
2. Amended Provisions.
BML and CVT agree that the Loan Agreement shall be amended in the manner
set forth below:
(a) The third and fourth sentences of Section 2.1(a) of the Loan
Agreement are amended to be, and read, in their entirety as follows:
"Unless the BML AGREEMENT has been terminated for any reason, CVT may,
in such amounts and at such times as CVT, in its sole discretion, may
determine, draw down the remaining balance of the Loan (the "Loan
Remainder") as follows: (i) FOUR MILLION FIVE HUNDRED THOUSAND DOLLARS
($4,500,000) of the Loan Remainder (the "Second Installment") will
become available for draw down commencing on the date of delivery to
Biogen of the final study report for the clinical study known as
CVT2123 (the "Final Study Report Date") and may drawn down over a
period of twenty-four months following the Final Study Report Date,
and (ii) the remaining FOUR MILLION FIVE HUNDRED THOUSAND DOLLARS
($4,500,000) of the Loan Remainder (the "Third Installment") will
become available for draw down upon receipt by CVT of the Phase II
Performance Assessment Study milestone payment (the "Milestone
Payment") pursuant to the BIOGEN AGREEMENT and may be drawn down over
a period of twenty-four months following the date of the Milestone
Payment, provided, however, that the total draw down amount from the
Loan Remainder shall not exceed FOUR MILLION FIVE HUNDRED THOUSAND
DOLLARS ($4,500,000) in any Calendar Year, as defined below. For
purposes of this Section, a "Calendar Year" commences on the date of
the earlier to occur of the Final Study Report Date or the date of the
Milestone Payment (the "Commencement Date") or an anniversary of the
Commencement Date and terminates twelve months later."
(b) The last sentence of Section 2.1 (a) of the Loan Agreement is
amended to be, and read, in its entirety as follows:
"Subject to the additional limitations on draw down specific to the
Second Installment and the Third Installment, respectively, as set
forth above, BML's obligation to advance any funds under the Loan
Remainder shall terminate upon the earlier to occur of (i) twenty-four
months following the later to occur of the Final Study Report Date or
the date of the Milestone Payment (the "Last Draw-down Date") or (ii)
termination or expiration of this Agreement."
(c) Section 5.1 of the Loan Agreement is amended to be, and read, in
its entirety as follows:
"Except as otherwise provided herein, this Agreement shall terminate
on the earlier to occur of (i) termination or expiration of the BML
AGREEMENT or (ii) the Last Draw-down Date."
(d) Section 6 of the Loan Agreement is amended by adding Section 6.7
as follows:
"6.7 Publicity. Neither party may disclose the terms of the Loan
Agreement or the terms of any advance of funds under the Loan
Agreement except to the extent required by law. Once any written
statement is approved for disclosure by both parties, either party may
make subsequent public disclosure of the contents of such statement
without further approval of the other party."
3. Ratification.
Except as otherwise expressly set forth in this Amendment, all of the
terms and conditions of the Loan Agreement shall remain in full force and
effect.
IN WITNESS WHEREOF, the parties have executed this Amendment on the date
first above written.
BIOTECH MANUFACTURING LTD. CV THERAPEUTICS
By: /s/ Xxxxxxx X. Xxxx By: /s/ Xxxxx X. Xxxxx
Xxxxxxx X. Xxxx Xxxxx Xxxxx, M.D., Ph.D.
Director Chief Executive Officer
