FIRST AMENDMENT TO BUSINESS LOAN AGREEMENT
THIS FIRST AMENDMENT TO BUSINESS LOAN AGREEMENT ("Amendment") is entered
into as of March 7th, 1997, by and among Xxxxxxxxx & Xxxxx Transition
Capital, LLC ("H&QTC"), a California limited liability company, and CV
Therapeutics, Inc., a Delaware corporation ("CVT").
RECITALS
A. H&QTC and CVT are parties to that certain Business Loan Agreement,
dated as of September 27, 1996 (the "H&QTC Loan Agreement") and certain
Related Documents (as defined in the H&QTC Loan Agreement).
B. CVT intends to enter into certain transactions (the "Collaboration")
contemplated by (i) a Research Collaboration and License Agreement
substantially in the form attached hereto as Exhibit A; (ii) a Loan Agreement
and Promissory Note substantially in the form attached hereto as Exhibits B
and C, respectively; (iii) a Common Stock Purchase Agreement substantially in
the form attached hereto as exhibit D; and (iv) any related documents
provided for by any of the foregoing ((i) through (iv), collectively, the
"Collaboration Agreement").
NOW, THEREFORE, in consideration of the foregoing recitals and other
good and valuable consideration, the receipt and adequacy of which is hereby
acknowledged, and intending to be legally bound, the parties hereby agree to
amend the H&QTC Loan Agreement only as follows:
THEREFORE, the Business Loan Agreement is amended only as follows:
1. The following definition will be added to Section 1 of the Business Loan
Agreement:
"PERMITTED UNSECURED INDEBTEDNESS" shall mean and include all
Indebtedness from Borrower to Biotech Manufacturing Ltd., a wholly owned
subsidiary of Biogen, Inc. under that certain Loan Agreement dated as of
March 10, 1997.
2. The definition of Related Documents is struck in its entirety, and the
following definition substituted therefor:
"RELATED DOCUMENTS" means and includes without limitation the
PROMISSORY NOTE, the Security Agreement, all other promissory
notes, credit agreements, loan agreements, guaranties, security
agreements, mortgages, deeds of trust, and all other instruments
and documents, whether now or hereafter existing, executed in
connection with any of the foregoing and agreements between Debtor
and Xxxxxxxxx & Xxxxx Guaranty Finance, LLC ("H&QGF") including
without limitation the Master Lease Agreement, Equipment
Schedules, and the Security Agreement.
3. Section 5.1 is struck in its entirety, and the following is substituted
therefor:
Section 5.1 INDEBTEDNESS AND LIENS
(a) incur, assume or permit to exist any Indebtedness other than
(i) Permitted Senior Indebtedness, (ii) accounts payable to trade
creditors for goods and services and current operating liabilities (not
the result of the borrowing of money) incurred in the ordinary course
of Borrower's business in accordance with customary terms and that are
not delinquent, and (iii) Indebtedness of Borrower secured by liens
permitted pursuant to clause (b)(ii) of this Section 5.1; (iv)
Indebtedness existing on the date hereof and disclosed in Exhibit A
hereto, (v) contingent obligations of Borrower consisting of guarantees
(and other credit support) of the obligations of vendors and suppliers
of Borrower in respect of transactions entered into in the ordinary
course of business, (vi) other Indebtedness of Borrower, provided that
the total amount in the aggregate outstanding INDEBTEDNESS at any time
described in (iv), (v), and (vi) above not to exceed $250,000; (vii)
Permitted Unsecured Indebtedness, and (viii) extensions, renewals,
refundings, refinancings, modifications, amendments and restatements of
any of the items of Indebtedness described in (i) through (vii) above,
PROVIDED that the principal amount thereof is not increased or the
terms thereof are not modified to impose more burdensome terms upon
Borrower, (b) except as otherwise permitted herein, or in any Related
Document, create, incur, or assume any mortgage, pledge encumbrance,
lien or charge of any kind (including the charge upon property at any
time purchased or acquired under conditional sale or other property at
any time purchased or acquired under conditional sale or other title
retention agreement) upon any asset now owned or hereafter acquired,
except for (i) SECURITY INTEREST that are granted in favor of the
SENIOR LENDER as security for the PERMITTED SENIOR INDEBTEDNESS, (ii)
other than as permitted pursuant to clause (iii) hereof, SECURITY
INTERESTS that are to secure Borrower's Indebtedness incurred solely
for the purpose of financing the acquisition or lease of any specific
items of equipment and granted in favor of a purchase money lender or
equipment lessor with respect to such Indebtedness, but only to the
extent that such lien is confined solely to the equipment so acquired
and such INDEBTEDNESS is limited to the purchase price or lease
obligations the respect to such equipment, and (iii) easements,
reservations, rights of way, restrictions, minor defects or
irregularities in title and other similar liens, (iv) liens in favor of
customers and revenue authorities arising as a matter of law to secure
payments of customs duties in connection with the importation of goods;
(v) liens arising solely by virtue of any statutory or common law
provision relating to banker's liens, rights of setoff or similar
rights and remedies as to deposit accounts or other funds maintained
with a creditor depository institution; (vi) liens existing on the date
hereof and disclosed on Exhibit A hereto; (vii) liens not otherwise
permitted, which liens do not in the aggregate exceed $250,000 at any
time (ix) liens incurred in connection with the extension, renewal or
refinancing of the indebtedness secured by liens of the type described
in clauses (i) through (ii) above, provided that any extension, renewal
or replacement lien shall be limited to the property encumbered by the
existing lien and the principal amount of the indebtedness being
extended, renewed or refinanced does not increase.
4. Except as specifically amended hereby, the Business Loan Agreement shall
remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized, as of the
date first above written.
CVT: CV Therapeutics, Inc.
a Delaware corporation
By: /s/ Xxxxx Xxxxx
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Printed Name: X. Xxxxx
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Title: CEO
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H&QTC: Xxxxxxxxx & Xxxxx Transition Capital, LLC
a California limited liability company
By: /s/ Xxxxxx X. Xxxx
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Printed Name: Xxxxxx X. Xxxx
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Title: Chief Executive Officer
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