Exhibit 10.12
PROMISSORY NOTE
To Master Security Agreement No. 4081067
August 31, 2004
(Date)
FOR VALUE RECEIVED, Altus Pharmaceuticals, Inc., a Delaware corporation, located
at the address stated below ("MAKER") promises, jointly and severally if more
than one, to pay to the order of OXFORD FINANCE CORPORATION or any subsequent
holder hereof (each, a "PAYEE") at its office located at ▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ or at such other place as Payer or the holder here of may
designate, the principal sum of FOUR HUNDRED FIFTY FOUR THOUSAND SEVEN HUNDRED
TWENTY SIXTY AND 23/100 DOLLARS ($454,726.23), with interest on the unpaid
balance, from the date hereof through and including the dates payment, at a
fixed interest rate of nine and one hundred thirty seven thousandths percent
(9.137%) per annum, in forty eight (48) consecutive monthly installments of
principal and interest as follows:
Periodic
Installment Amount
----------- ----------
1-48 $11,259.75
each ("PERIODIC INSTALLMENT") and a final installment which shall be in the
amount of the total outstanding principal and interest. The first Periodic
Installment shall be due and payable on August 23, 2004 and the following
Periodic Installments and the final installment shall be due and payable on the
same day of each succeeding October 1, 2004 (each, a "PAYMENT DATE"). Such
installments have been calculated on the basis of a 360-day year of twelve
30-day months. Each payment may, at the option of the Payee, be calculated and
applied on an assumption that such payment would be made on its due date. Maker
agrees to pay any initial partial month interest payment from the date of this
Note to the first day of the following month ("Interim Interest").
The acceptance by Payee of any payment which is less than payment in full of all
amounts due and owing at such time shall not constitute a waiver of Payee's
right to receive payment in full at such time or at any prior or subsequent
time.
The Maker hereby expressly authorizes the Payee to insert the date value as
actually given in the blank space on the face hereof and on all related
documents pertaining hereto.
This Note may be secured by a security agreement, chattel mortgagee, pledge
agreement or like instrument (each of which is hereinafter called a "Security
Agreement" and any Security Agreement, this Note and any other document
evidencing or securing this loan is hereinafter called a "Debt Document").
Time is of the essence hereof. If any installment or any other sum due under
this Note or any Security Agreement is not received within 5 days of when due,
the Maker agrees to pay, in addition to the amount of each such installment or
other sum, a late payment charge of five percent (5%) of the amount of said
installment or other sum, but not exceeding any lawful
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maximum. If (i) Maker fails to make payment of any amount due hereunder; or (ii)
Maker is in default under, or fails to perform under any material term or
condition contained in any Security Agreement, then the entire principal sum
remaining unpaid, together with all accrued interest thereon and any other sum
payable under this Note or any Security Agreement, at the election of Payee,
shall immediately become due and payable, with interest thereon at the lesser of
eighteen percent (18%) per annum or the highest rate not prohibited by
applicable law from the date of such accelerated maturity until paid (both
before and after any judgment).
Notwithstanding anything to the contrary herein or in the Security Agreement,
Maker may not prepay in full or in part any indebtedness hereunder without the
express written consent of Payee in its sole discretion.
The Maker and all sureties, endorsers, guarantors or any others (each such
person, other than the Maker, an "Obligor") who may at any time become liable
for the payment hereof jointly and severally consent hereby to any and all
extensions of time, renewals, waivers or modifications of, and all substitutions
or releases of, security or of any party primarily or secondarily liable on this
Note or any Security Agreement or any term and provision of either, which may be
made, granted or consented to by Payee, and agree that suit may be brought and
maintained against any one or more of them, at the election of Payee without
joinder of any other as a party thereto, and that Payee shall not be required
first to foreclose, proceed against, or exhaust any security hereof in order to
enforce payment of this Note. The Maker and Obligor hereby waives presentment,
demand for payment, notice of nonpayment, protest, notice of protest, notice of
dishonor, and all other notices in connection herewith, as well as filing of
suit (if permitted by law) and diligence in collecting this Note or enforcing
any of the security hereof, and agrees to pay (if and to the extent permitted by
law) all expenses incurred in collection, including Payee's actual attorneys'
fees.
Maker and Payee intend to strictly comply with all applicable federal and
▇▇▇▇▇▇▇▇ ▇▇▇▇, including applicable usury laws (or the usury laws of any
jurisdiction whose usury laws are deemed to apply to the Note or any other Debt
Documents despite the intention and desire of the parties to apply the usury
laws of the Commonwealth of Virginia). Accordingly, the provisions of this
paragraph shall govern and control over every other provision of this Note or
any other Debt Document which conflicts or is inconsistent with this Section,
even if such provision declares that it controls. As used in this paragraph, the
term "interest" includes the aggregate of all charges, fees, benefits, or other
compensation which constitute interest under applicable law, provided that, to
the maximum extent permitted by applicable law, (a) any non-principal payment
shall be characterized as an expense or as compensation for something other than
the use, forbearance or detention of money and not as interest, and (b) all
interest at any time contracted for, reserved, charged or received shall be
amortized, prorated, allocated and spread, in equal parts during the full term
of the obligations. In no event shall Maker or any other person be obligated to
pay, or Payee have any right or privilege to reserve, receive or retain, (a) any
interest in excess of the maximum amount of non-usurious interest permitted
under the laws of the Commonwealth of Virginia or the applicable laws (if any)
of the United States or of any other state, or (b) total interest in excess of
the amount which Payee could lawfully have contracted for, reserved, received,
retained or charged had the interest been calculated for the full term of the
obligations. On each day, if that the interest rate (the "Stated Rate") called
for under
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this Note or any other Debt Document exceeds the maximum non-usurious rate, the
rate at which interest shall accrue shall automatically be fixed by operation of
this sentence at the maximum non-usurious rate for that day. Thereafter,
interest shall accrue at the Stated Rate unless and until the Stated Rate again
exceeds the maximum non-usurious rate, in which case, the provisions of the
immediately preceding sentence shall again automatically operate to limit the
interest accrual rate to the maximum non-usurious rate. The daily interest rate
to be used in calculating interest at the maximum non-usurious rate shall be
determined by dividing the applicable maximum non-usurious rate by the number of
days in the calendar year for which such calculation is being made. None of the
terms and provisions contained in this Note or in any other Debt Document which
directly or indirectly relate to interest shall ever be construed without
reference to this paragraph, or be construed to create a contract to pay for the
use, forbearance or detention of money at an interest rate in excess of the
maximum non-usurious rate. If the term of any obligation is shortened by reason
of acceleration of maturity as a result of any Default or by any other cause, or
by reason of any required or permitted prepayment, and if for that (or any
other) reason Payee at any time, including but not limited to, the stated
maturity, is owed or received (and/or has received) interest in excess of
interest calculated at the maximum non-usurious rate, then and in any event all
of any such excess interest shall be canceled automatically as of the date of
such acceleration, prepayment or other event which produces the excess, and, if
such excess interest has been paid to Payee, it shall be credited pro tanto
against the then-outstanding principal balance of Maker's obligations to Payee,
effective as of the date or dates when the event occurs which causes it to be
excess interest, until such excess is exhausted or all of such principal has
been fully paid and satisfied, whichever occurs first, and any remaining balance
of such excess shall be promptly refunded to its payor.
THE MAKER HEREBY UNCONDITIONALLY WAIVES ITS RIGHTS TO A JURY TRIAL OR ANY CLAIM
OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF, DIRECTLY OR INDIRECTLY, THIS
NOTE, ANY OF THE RELATED DOCUMENTS, ANY DEALINGS BETWEEN MAKER AND PAYEE
RELATING TO THE SUBJECT MATTER OF THIS TRANSACTION OR ANY RELATED TRANSACTIONS,
AND/OR THE RELATIONSHIP THAT IS BEING ESTABLISHED BETWEEN MAKER AND PAYEE. THE
SCOPE OF THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL DISPUTES
THAT MAY BE FILED IN ANY COURT (INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS,
TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY
CLAIMS.) THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER
ORALLY OR IN WRITING, AND THE WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS NOTE, ANY RELATED DOCUMENTS, OR
TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THIS TRANSACTION OR ANY RELATED
TRANSACTION. IN THE EVENT OF LITIGATION, THIS NOTE MAY BE FILED AS A WRITTEN
CONSENT TO A TRIAL BY THE COURT.
This Note and any Security Agreement constitute the entire agreement of the
Maker and Payee with respect to the subject matter hereof and supersedes all
prior understanding, agreements and representations, express or implied.
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No variation or modification of this Note, or any waiver of any of its
provisions or conditions, shall be valid unless in writing and signed by an
authorized representative or Maker and Payee. Any such waiver, consent,
modification or change shall be effective only in the specific instance and for
the specific purpose given.
Any provision in this Note or any Security Agreement which is in conflict with
any statute, law or applicable rule shall be deemed omitted, modified or altered
to conform thereto.
Upon receipt of an affidavit of an officer of Payee as to the loss, theft,
destruction or mutilation of this Note or any Debt Document which is not of
public record, and, in the case of any such loss, theft, destruction or
mutilation, upon surrender and cancellation of such Note or other Debt Document,
Maker will issue, in lieu thereof, a replacement Note or other Debt Document in
the same principal amount thereof and otherwise of like tenor.
It is understood and agreed that this Note and all of the Debt Documents were
negotiated and have been or will be delivered to Payee in the Commonwealth of
Virginia, which State the parties agree has a substantial relationship to the
parties and to the underlying transactions embodied by this Note and the Debt
Documents. Maker agrees to furnish to Payee at Payee's office in Alexandria, VA
all further instruments, certifications and documents to be furnished hereunder.
The parties also agree that if collateral is pledged to secure the debt
evidenced by this Note, that the state or states in which such collateral is
located each have a substantial relationship to the parties and to the
underlying transaction embodied by this Note and the Debt Documents.
MAKER AGREES THAT THE PAYEE OF THIS NOTE SHALL HAVE THE OPTION BY WHICH STATE
LAWS THIS NOTE SHALL BE GOVERNED AND CONSTRUED: (A) THE LAW OF THE COMMONWEALTH
OF VIRGINIA; OR (B) IF COLLATERIAL HAS BEEN PLEDGED TO SECURE THE DEBT EVIDENCED
BY THIS NOTE, THEN BY THE LAWS OF THE STATE OR STATES WHERE THE COLLATERIAL IS
LOCATED, AT PAYEE'S OPTION. THIS CHOICE OF STATE LAWS IS EXCLUSIVE TO THE PAYEE
OF THIS NOTE. MAKER SHALL NOT HAVE ANY OPTION TO CHOOSE THE LAWS BY WHICH THIS
NOTE SHALL BE GOVERNED. MAKER AND GUARANTORS HEREBY CONSENT TO THE EXERCISE OF
JURISDICTION OVER IT BY ANY FEDERAL COURT SITTING IN VIRGINIA OR ANY VIRGINIA
COURT SELECTED BY PAYEE, FOR THE PURPOSES OF ANY AND ALL LEGAL PROCEEDINGS
ARISING OUT OF OR RELATING TO THE NOTE, THE LOAN AGREEMENT AND ALL OTHER
DOCUMENTS. MAKER AND GUARANTORS IRREVOCABLY WAIVE, TO THE FULLEST EXTENT
PERMITTED BY LAW, ANY COURT, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO
THE LAYING OF VENUE OF ANY SUCH PROCEEDING BROUGHT IN ANY SUCH COURT, ANY CLAIM
BASED ON THE CONSOLIDATED OR PROCEEDINGS IN SUCH COURTS IN WHICH PROPER VENUE
MAY LIE IN DIVERGENT JURISIDCTIONS, AND ANY CLAIM THAT ANY SUCH PROCEEDING
BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. MAKER AND
GUARANTORS HEREBY IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY
AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING
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OUT OF OR RELATING TO THIS NOTE, THE OTHER DOCUMETNS OR THE TRANSACTIONS
CONTEMPLATED THEREBY.
ALTUS PHARMACEUTICALS INC.
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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(Witness) Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: VP Finance
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(Print name) Federal Tax ID #: ▇▇-▇▇▇▇▇▇▇
Address: ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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(Address)
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