Exhibit 10.15 (b)
EXHIBIT A
AMENDED AND RESTATED SENIOR
SECURED PROMISSORY NOTE
Cambridge, Massachusetts
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$7,000,000
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As of May 31, 2002
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FOR VALUE RECEIVED, DYAX CORP., a
Delaware corporation (the “ Debtor ”), hereby
promises to pay to the order of GENZYME CORPORATION, a
Massachusetts corporation (the “ Lender ”), the
principal amount of SEVEN MILLION DOLLARS ($7,000,000), together
with interest on the unpaid principal balance of this Note from
time to time outstanding at a variable rate per annum equal to the
sum of: (a) the Prime Rate in effect from time to time and (b) two
percent (2%) (the “Basic Rate”). Each change in
such interest rate shall take effect simultaneously with the
corresponding change in such Prime Rate. “Prime
Rate” shall mean the rate of interest published in the
Wall Street Journal as the prime rate from time to
time. All interest accrued hereunder shall be due and payable
quarterly in arrears on the first business day of each calendar
quarter, commencing on the first such date to occur at least thirty
(30) days after the date of the first advance. The
outstanding principal sum hereunder, together with any accrued but
unpaid interest and all other charges payable hereunder, shall be
due and payable in full on May 31, 2010 (the “ Maturity
Date ”), unless accelerated or subject to mandatory
prepayment as provided below.
Upon the occurrence of an Event of
Default (as defined below), the entire unpaid principal balance of
this Note, together with any interest accrued thereon and all other
sums due or owed by the Debtor hereunder, shall at the option of
the Lender, upon notice from Lender (except for an Event of Default
under of Section 4(e) or Section 4(f) hereof which will be without
notice) to the Debtor become immediately due and payable with
interest (after such Event of Default and until the Debtor’s
indebtedness to the Lender is paid in full). Interest on such
amounts shall accrue and be payable at a rate per annum equal to
the sum of: (a) the sum of the Basic Interest Rate then in
effect and (b) three percent (3%).
All payments of principal, interest
and other amounts payable on or in respect of this Note shall be
made to the Lender at its office at 500 Kendall Street, Cambridge,
Massachusetts 02142, or to such other place as the Lender may from
time to time direct, in lawful money of the United States of
America, in funds immediately available. Interest shall be
computed on the basis of a 360-day year and a 30-day
month.
It is the intent of the Lender and
the Debtor that in no event shall interest be payable at a rate in
excess of the maximum rate permitted by applicable law (the “
Maximum Legal Rate ”). Solely to the extent
necessary to prevent interest under this Note from exceeding the
Maximum Legal Rate, any amount that would be treated as excessive
under a final judicial interpretation of applicable law shall be
deemed to have been a mistake and automatically cancelled and, if
received by the Lender, shall be applied to the principal balance
of this Note or, if no principal balance remains outstanding, then
such amount shall be refunded to the Debtor.
1.
Collateral
This Note is secured by that certain
letter of credit issued by Silicon Valley Bank, a copy of which is
attached hereto as Exhibit A (the “ Letter of
Credit ”) and incorporates by reference the provisions
thereof. Neither the foregoing reference to the Letter of
Credit nor any provisions thereof shall affect or impair the
absolute and unconditional obligation of the Debtor to pay the
principal, interest and all other charges payable hereunder on this
Note as provided herein.
2.
[Intentionally omitted.]
EXHIBIT A
3.
Prepayment of Principal
The Debtor may, at its option,
prepay from time to time all or any part of this Note without
premium or penalty but together with interest on the principal
amount so prepaid accrued to the date of prepayment.
4.
Events of Default
Upon the occurrence of any one or
more of the following events (each, an “ Event of
Default ”), the Lender at its option may declare all
amounts due hereunder, including, without limitation, the entire
unpaid principal balance of this Note and any accrued, unpaid
interest thereon, to be immediately due and payable without notice
or protest (both of which are hereby waived):
(a)
The failure to make any payment of interest within 5 business days
of the due date thereof (without reference to Section 6.3 below),
or failure to make payment of principal or other amounts due
pursuant to the terms of this Note on or before the due
date;
(b)
A judgment, decree, writ, warrant of attachment or similar process
in an amount equal to or exceeding $1,000,000 is entered against
the Debtor or any of its assets, if such judgment, decree, writ,
warrant of attachment or similar process is not adequately covered
by insurance or has not been vacated, discharged, appealed from
(with execution or similar process continuously stayed) within
thirty (30) days of such judgment’s entry;
(c)
The occurrence of any event that permits any indebtedness
(including a capitalized lease obligation) of the Debtor equal to
or exceeding $100,000 which is owed to a person or entity other
than the Lender to be accelerated, notwithstanding that such
acceleration has not taken place;
(d)
A termination of the Amended and Restated Collaboration Agreement
dated as of May 31, 2002, between the Debtor and the Lender, as
amended to date (the “Collaboration Agreement”) by (i)
either party pursuant to Sections 13.2.3 or 13.2.4, (ii) the Debtor
pursuant to Section 13.2.2, (iii) the Lender pursuant to Section
13.2.1 or (iv) either party pursuant to Section 13.2.5 and
the Debtor does not exercise its license option pursuant to
Section 13.3.5(a) of the Collaboration Agreement;
(e)
A proceeding is instituted in a court having jurisdiction in the
premises seeking a decree or order for relief in respect to the
Debtor in an involuntary case under any applicable bankruptcy,
insolvency or other similar law nor or hereafter in effect, or for
the appointment of a receive
