Silicon Valley Bank
U.S. Small Business Administration
Paycheck Protection Program
SBA Loan No.
SBA Loan Name
Borrower Legal Name
VISTAGEN THERAPEUTICS INC
1.0% per annum
VISTAGEN THERAPEUTICS INC
Silicon Valley Bank
In return for the Loan, Borrower promises to pay to the order of
Lender the amount of $
interest on the unpaid principal balance, and all other amounts
required by this Note.
“Collateral” means any property taken as security for
payment of this Note or any guarantee of this
“CARES Act” means the Coronavirus Aid, Relief, and
Economic Security Act.
“Guarantor” means each person or entity that signs a
guarantee of payment of this Note.
“Loan” means the loan evidenced by this
“Loan Documents” means the documents related to this
loan signed by Borrower, any Guarantor, or anyone who pledges
“Paycheck Protection Program” means loan program
created by Section 1102 of the CARES Act.
“Per Annum” means for a year deemed to be comprised of
“SBA” means the Small Business Administration, an
Agency of the United States of America.
PAYMENT TERMS: Borrower must make all payments at the place Lender
designates. The payment terms for this Note
Conditions Precedent to Disbursement of Loan
Before the funding of the Loan, the following conditions must be
Lender has approved the request for the Loan.
Lender has received approval from SBA to fund the
No Payments During Deferral Period. There
shall be no payments due by Borrower during the six month period
beginning on the date of this Note (the “Deferral
Period”). However, during the Deferral Period interest will
accrue at the Interest Rate on the unpaid principal balance
computed on the basis of the actual number of days elapsed in a
year of 360 days.
Principal and Interest Payments.
Commencing one month after the expiration of the Deferral Period,
and continuing on the same day of each month thereafter until the
Maturity Date, Borrower shall pay to Lender monthly payments of
principal and interest, each in such equal amount required to fully
amortize the principal amount outstanding on the Note on the last
day of the Deferral Period by the Maturity
Maturity Date. On
the date which is twenty-four (24) months from the date of this
Note (the “Maturity Date”), Borrower shall pay to
Lender any and all unpaid principal plus accrued and unpaid
interest plus interest accrued during the Deferral Period. This
Note will mature on the Maturity Date.
Not a Business Day. If
any payment is due on a date for which there is no numerical
equivalent in a particular calendar month then it shall be due on
the last day of such month. If any payment is due on a day that is
a Saturday, Sunday or any other day on which California chartered
banks are authorized to be closed, the payment will be made on the
next business day.
Payments shall be allocated among principal and interest at the
discretion of Lender unless otherwise agreed or required by
applicable law (including the CARES
Notwithstanding, in the event the Loan, or any portion thereof, is
forgiven pursuant to the Paycheck Protection Program under the
federal CARES Act, the amount so forgiven shall be applied to
Borrower may prepay this Note at any time without payment of any
penalty or premium.
Borrower certifies to Lender as follows:
Current economic uncertainty makes this Loan necessary to support
the ongoing operations of Borrower.
Loan funds will be used by Borrower to retain its workers and
maintain its payroll or make its mortgage payments, lease payments,
and utility payments.
For the period beginning on February 15, 2020 and ending on
December 31, 2020, Borrower did not receive, and agrees it will not
apply for or receive, another loan under the Paycheck Protection
Borrower was in operation on February 15, 2020 and (i) had
employees for whom it paid salaries and payroll taxes or (ii) paid
independent contractors as reported on a
Borrower has reviewed and understands Sections 1102 and 1106 of the
CARES Act and the related guidelines and has completed the
Application, including Borrower’s eligibility in conformity
with those provisions.
Borrower has taken its “affiliates” (as defined by the
SBA) into account when determining the number of employees and the
total amount of loans permitted under the Paycheck Protection
Borrower is a small business concern or is otherwise eligible to
receive a covered loan.
The person who has completed and signed the application, this Note
and the Loan Documents has been validly authorized by Borrower to
enter into borrowings on behalf of Borrower.
Borrower understands and agrees, and waives and releases Lender,
its affiliates and their respective directors, officers, agents and
employees, as follows:
The Loan will be made under the SBA’s Paycheck Protection
Program. Accordingly, this Note and the other Loan Documents must
be submitted to and approved by the SBA. There is limited funding
available under the Paycheck Protection Program and accordingly,
all applications submitted will not be approved by the
Lender is participating in the Payroll Protection Program to help
businesses impacted by the economic impact from COVID-19. However,
Lender anticipates high volumes and there may be processing delays
and system failures along with other issues that interfere with
submission of Borrower’s application to SBA. Lender does not
represent or guarantee that it will submit the application while
SBA funding remains available under the Payroll Protection Program
or at all. Borrower hereby agrees that Lender is not responsible or
liable to Borrower or any of its affiliates (i) if the Lender does
not submit Borrower’s application to the SBA until after the
date that SBA stops approving applications under the Paycheck
Protection Program, for any reason or (ii) if the application is
not processed by Lender. Borrower forever releases and waives any
claims against Lender, its affiliates and their respective
directors, officers, agents and employees concerning failure to
obtain the Loan. This release and waiver applies to, but is not
limited to, any claims concerning Lender’s (i) pace, manner
or systems for processing or prioritizing applications, or (ii)
representations by Lender regarding the application process, the
Paycheck Protection Program, or availability of funding. This
agreement to release and waiver supersedes any prior
communications, understandings, agreements or communications on the
issues set forth herein.
Forgiveness of the Loan is only available for principal that is
used for the limited purposes that expressly qualify for
forgiveness under SBA requirements, and that to obtain forgiveness,
Borrower must request forgiveness from the Lender, provide
documentation in accordance with the SBA requirements, and certify
that the amounts Borrower is requesting to be forgiven qualify
under those requirements. Borrower also understands that Borrower
shall remain responsible under the Loan for any amounts not
forgiven, and that interest payable under the Loan will not be
forgiven, but that the SBA may pay the Loan interest on forgiven
Forgiveness of the Loan is not automatic and Borrower must request
forgiveness of the Loan from Lender. Borrower is not relying on
Lender for its understanding of the requirements for forgiveness
such as eligible expenditures, necessary records/documentation, or
possible reductions due to changes in number of employees or
compensation. Borrower agrees that will consult the SBA’s
program materials and consult with its own counsel regarding the
The Loan Documents are subject to review, and Borrower may not
receive the Loan. The Loan also remains subject to availability of
funds under the SBA’s Payment Protection Program, and to the
SBA issuing an SBA loan number.
Borrower's liability under this Note will continue with respect to
any amounts SBA may pay Bank based on an SBA guarantee of this
Note. Any agreement with Bank under which SBA may guarantee this
Note does not create any third party rights or benefits for
Borrower and, if SBA pays Bank under such an agreement, SBA or Bank
may then seek recovery from Borrower of amounts paid by
Lender reserves the right to modify the Note Amount based on
documentation received from Borrower.
Borrower’s execution of this Note has been duly authorized by
all necessary actions of its governing body. The person signing
this Note is duly authorized to do so on behalf of
This Note shall not be governed by any existing or future credit
agreement or loan agreement with Lender. The liabilities guaranteed
pursuant to any existing or future guaranty in favor of Lender
shall not include this Note. The liabilities secured by any
existing or future security instrument in favor of Lender shall not
include the Loan.
The proceeds of the Loan will be used to retain workers and
maintain payroll or make mortgage interest payments, lease
payments, and utility payments, as specified under the Paycheck
Protection Program Rule. Borrower understands that if the funds are
knowingly used for unauthorized purposes, the federal government
may hold Borrower legally liable, such as for charges of
Electronic Execution of Loan Documents.
The words “execution,” “signed,”
“signature” and words of like import in this Note and
any Loan Document shall be deemed to include electronic signatures
or the keeping of records in electronic form, each of which shall
be of the same legal effect, validity and enforceability as a
manually executed signature or the use of a paper-based
recordkeeping systems, as the case may be, to the extent and as
provided for in any applicable law, including, without limitation,
any state law based on the Uniform Electronic Transactions
Borrower is in default under this Note if Borrower does not make a
payment when due under this Note, or if Borrower or Operating
Fails to do anything required by this Note and other Loan
Defaults on any other loan with Lender;
Does not preserve, or account to Lender’s satisfaction for,
any of the Collateral or its proceeds;
Does not disclose, or anyone acting on their behalf does not
disclose, any material fact to Lender or SBA;
Makes, or anyone acting on their behalf makes, a materially false
or misleading representation to Lender or SBA;
Defaults on any loan or agreement with another creditor, if Lender
believes the default may materially affect Borrower’s ability
to pay this Note;
Fails to pay any taxes when due;
Becomes the subject of a proceeding under any bankruptcy or
Has a receiver or liquidator appointed for any part of their
business or property;
Makes an assignment for the benefit of
Has any adverse change in financial condition or business operation
that Lender believes may materially affect Borrower’s ability
to pay this Note;
Reorganizes, merges, consolidates, or otherwise changes ownership
or business structure without
Lender’s prior written consent; or
Becomes the subject of a civil or criminal action that Lender
believes may materially affect Borrower’s ability to pay this
LENDER’S RIGHTS IF THERE IS A DEFAULT.
Without notice or demand and without giving up any of its rights,
Require immediate payment of all amounts owing under this
Collect all amounts owing from any Borrower or
File suit and obtain judgment.
Take possession of any Collateral; or
Sell, lease, or otherwise dispose of, any Collateral at public or
private sale, with or without advertisement.
LENDER’S GENERAL POWERS.
Without notice and without Borrower’s consent, Lender
Bid on or buy the Collateral at its sale or the sale of another
lienholder, at any price it chooses;
Incur expenses to collect amounts due under this Note, enforce the
terms of this Note or any other Loan Document, and preserve or
dispose of the Collateral. Among other things, the expenses may
include payments for property taxes, prior liens, insurance,
appraisals, environmental remediation costs, and reasonable
attorney’s fees and costs. If Lender incurs such expenses, it
may demand immediate repayment from Borrower or add the expenses to
the principal balance;
Release anyone obligated to pay this Note;
Compromise, release, renew, extend or substitute any of the
Take any action necessary to protect the Collateral or collect
amounts owing on this Note.
WHEN FEDERAL LAW APPLIES; GOVERNING LAW; FORUM
When SBA is the holder, this Note will be interpreted and enforced
under federal law, including SBA regulations. Lender or SBA may use
state or local procedures for filing papers, recording documents,
giving notice, foreclosing liens, and other purposes. By using such
procedures, SBA does not waive any federal immunity from state or
local control, penalty, tax, or liability. As to this Note,
Borrower may not claim or assert against SBA any local or state law
to deny any obligation, defeat any claim of SBA, or preempt federal
SUCCESSORS AND ASSIGNS.
Under this Note, Borrower and Operating Company includes its
successors, and Lender includes its successors and
All individuals and entities signing this Note are jointly and
Borrower waives all suretyship defenses.
Borrower must sign all documents necessary at any time to comply
with the Loan Documents and to enable Lender to acquire, perfect,
or maintain Lender’s liens on Collateral.
Lender may exercise any of its rights separately or together, as
many times and in any order it chooses. Lender may delay or forgo
enforcing any of its rights without giving up any of them. E.
Borrower may not use an oral statement of Lender or SBA to
contradict or alter the written terms of this
If any part of this Note is unenforceable, all other parts remain
To the extent allowed by law, Borrower waives all demands and
notices in connection with this Note, including presentment,
demand, protest, and notice of dishonor. Borrower also waives any
defenses based upon any claim that Lender did not obtain any
guarantee; did not obtain, perfect, or maintain a lien upon
Collateral; impaired Collateral; or did not obtain the fair market
value of Collateral at a sale.
If the SBA is not the holder, this Note shall be governed by and
construed in accordance with the laws of the State of California
where the main office of Lender is located. MATTERS REGARDING
INTEREST TO BE CHARGED BY LENDER AND THE EXPORTATION OF INTEREST
SHALL BE GOVERNED BY FEDERAL LAW (INCLUDING WITHOUT LIMITATION 12
U.S.C. SECTIONS 85 AND 1831(u) AND THE LAW OF THE STATE OF
CALIFORNIA. Borrower agrees that any legal action or proceeding
with respect to any of its obligations under this Note may be
brought by Lender in any state or federal court located in the
State of California, as Lender in its sole discretion may elect.
Borrower submits to and accepts in respect of its property,
generally and unconditionally, the non-exclusive jurisdiction of
those courts. Borrower waives any claim that the State of
California is not a convenient forum or the proper venue for any
such suit, action or proceeding. The extension of credit that is
the subject of this Note is being made by Lender in
BORROWER’S NAME(S) AND SIGNATURE(S).
BORROWER CERTIFIES THAT THE INFORMATION PROVIDED IN THIS
APPLICATION AND THE INFORMATION PROVIDED IN ALL SUPPORTING
DOCUMENTS AND FORMS IS TRUE AND ACCURATE IN ALL MATERIAL RESPECTS.
BORROWER UNDERSTANDS THAT KNOWINGLY MAKING A FALSE STATEMENT TO
OBTAIN A GUARANTEED LOAN FROM SBA IS PUNISHABLE UNDER THE LAW,
INCLUDING UNDER 18 USC 1001 AND 3571 BY IMPRISONMENT OF NOT MORE
THAN FIVE YEARS AND/OR A FINE OF UP TO $250,000; UNDER 15 USC 645
BY IMPRISONMENT OF NOT MORE THAN TWO YEARS AND/OR A FINE OF NOT
MORE THAN $5,000; AND, IF SUBMITTED TO A FEDERALLY INSURED
INSTITUTION, UNDER 18 USC 1014 BY IMPRISONMENT OF NOT MORE THAN
THIRTY YEARS AND/OR A FINE OF NOT MORE THAN
By signing below, each individual or entity becomes obligated under
this Note as Borrower.
Funds will be credited to your Deposit
Number ending in: