exv10w2



 





Exhibit 10.2




PROMISSORY NOTE




October 31, 2006

(Date)



FOR VALUE RECEIVED, Genitope Corporation a corporation located at the address stated below
(“Maker”) promises, jointly and severally if more than one, to pay to the order of General
Electric Capital Corporation or any subsequent holder hereof (each, a “Payee”) at its office
located at 83 Wooster Heights Road, Danbury, CT 06810 or at such other place as Payee or the
holder hereof may designate, the principal sum of Three Million Nine Hundred Five Thousand One
Hundred Ninety Six and 97/00 Dollars $3,905,196.97, with interest on the unpaid principal
balance, from the date hereof through and including the dates of payment, at a fixed interest
rate of Ten and Zero Hundredths percent (10.00%) per annum, to be paid in lawful money of the
United States, in thirty-six (36) consecutive monthly installments of principal and interest as
follows:




	 	 	 	 	 
	  Periodic	 	 
	Installment	 	Amount
	Thirty-Five (35)
	 	 	$126, 009.72	 





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 December 1, 2006 and the following Periodic Installments and the final
installment shall be due and payable on the same day of each succeeding month (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.



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 is 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 mortgage, pledge agreement or like
instrument (each of which is hereinafter called a “Security Agreement”).



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 ten (10) days after its due date, 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
maximum. If (i) Maker fails to make payment of any amount due hereunder within ten (10) days
after the same becomes due and payable; or (ii) a default has occurred and is continuing under
Section 7(a) of the 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). [Less any cash amount held back by Secured Party.]



The Maker may prepay in full, but not in part, its entire indebtedness. Payment of the entire
indebtedness will include a penalty equal to the following percentages of the remaining principal
balance for the indicated period:




     Prior to the first annual anniversary date of this Note: Three percent (3%)



     Thereafter and prior to the second annual anniversary date of this Note: Two percent (2%)



     Thereafter and prior to the third annual anniversary date of this Note: One percent (1%)


Plus all other sums due hereunder or under any Security Agreement.



It is the intention of the parties hereto to comply with the applicable usury laws;
accordingly, it is agreed that, notwithstanding any provision to the contrary in this Note or any
Security Agreement, in no event shall this Note or any Security Agreement require the payment or
permit the collection of interest in excess of the maximum amount permitted by applicable law.
If any such excess interest is contracted for, charged or received under this Note or any
Security Agreement,


 









 






or if all of the principal balance shall be prepaid, so that under any of
such circumstances the amount of interest contracted for, charged or received under this Note or
any Security Agreement on the principal balance shall exceed the maximum amount of interest
permitted by applicable law, then in such event (a) the provisions of this paragraph shall
govern and control, (b) neither Maker nor any other person or entity now or hereafter liable for
the payment hereof shall be
obligated to pay the amount of such interest to the extent that it is in excess of the maximum
amount of interest permitted by applicable law, (c) any such excess which may have been
collected shall be either applied as a credit against the then unpaid principal balance or
refunded to Maker, at the option of the Payee, and (d) the effective rate of interest shall be
automatically reduced to the maximum lawful contract rate allowed under applicable law as now or
hereafter construed by the courts having jurisdiction thereof. It is further agreed that without
limitation of the foregoing, all calculations of the rate of interest contracted for, charged or
received under this Note or any Security Agreement which are made for the purpose of determining
whether such rate exceeds the maximum lawful contract rate, shall be made, to the extent
permitted by applicable law, by amortizing, prorating, allocating and spreading in equal parts
during the period of the full stated term of the indebtedness evidenced hereby, all interest at
any time contracted for, charged or received from Maker or otherwise by Payee in connection with
such indebtedness; provided, however, that if any applicable state law is amended or the law of
the United States of America preempts any applicable state law, so that it becomes lawful for the
Payee to receive a greater interest per annum rate than is presently allowed, the Maker agrees
that, on the effective date of such amendment or preemption, as the case may be, the lawful
maximum hereunder shall be increased to the maximum interest per annum rate allowed by the
amended state law or the law of the United States of America.



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 each 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 permitted by law) all expenses incurred in collection, including Payee’s
reasonable attorneys’ fees.



THE MAKER HEREBY UNCONDITIONALLY WAIVES ITS RIGHTS TO A JURY TRIAL OF 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 other Debt Documents constitute the entire agreement of the Maker and Payee with
respect to the subject matter hereof and supersedes all prior understandings, agreements and
representations, express or implied.



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 of 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 of the other Debt Documents which is in conflict with any
statute, law or applicable rule shall be deemed omitted, modified or altered to conform thereto.




 









 








	 	 	 	 	 	 	 
	 	 	 	 	Genitope Corporation
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	/s/ Laura R. Woodhead 

	 	 	 	By:
	 	/s/ John Vuko
	 

	 	 	 	 	 	 
	(Witness)
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	Laura R. Woodhead 

	 	 	 	Name:
	 	John Vuko
	 

(Print name)

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	6900 Dumbarton Circle
Fremont, CA 94555 

	 	 	 	Title:
	 	CFO
	 

(Address)

	 	 	 	 	 	 
	 	 	 	 	Federal Tax ID #: 770436313
	 
	 	 	 	 	 	 
	 	 	 	 	Address: 6900 Dumbarton Circle, Fremont, CA 94555