exv10w1



 





EXHIBIT 10.1




PROMISSORY NOTE




			
	 	 	 
	$55,650
	 	May 18, 2007






     FOR VALUE RECEIVED, the undersigned, Sutura, Inc., a Delaware corporation (the “Maker”),
hereby promises to pay to the order of Pandora Select Partners, L.P., a British Virgin Islands
limited partnership, or its assigns (the “Payee”), at such place as the Payee may designate in
writing, the principal sum of Fifty-Five Thousand Six Hundred Fifty Dollars ($55,650) under the
terms set forth herein. This Note is one of a series of four Notes (together, the “Series Notes")
being issued by Maker on the date hereof.


1. Interest. The unpaid principal balance hereof from time to time outstanding shall bear
interest from the date hereof at the rate of twelve percent (12%) per annum.



2. Payment. Except as otherwise provided herein, and subject to any default hereunder, the
principal and interest hereof is payable as follows:




     (a) The entire outstanding principal amount of the Note together with all accrued but unpaid
interest shall be due and payable in cash or otherwise immediately available funds in one balloon
payment on the sixtieth (60th) month anniversary of this Note (the “Maturity Date”).



     (b) Maker may prepay this Note, in whole or in part, upon five (5) days prior written notice
to Payee at a cost equal to accrued interest plus the present value of the note discounted at a
rate equal to (x) the then U.S. Treasury rate for 5-year Notes as reported by Bloomberg on the date
of such Prepayment Notice, plus (y) 100 basis points. All Prepayments shall be applied
first to accrued but unpaid interest and then to principal.


3. Demand Right for Early Payment. Payee shall have the one-time right, in its sole and
absolute discretion, to require Maker to pay all outstanding principal amounts and accrued but
unpaid interest due under this Note by providing Maker with written notice of such payment
requirement no sooner than November 1, 2007, but no later than November 15, 2007 (the “Payment
Notice”). Upon receipt of such Payment Notice, Maker shall pay all such amounts in cash or
otherwise immediately available funds on or prior to November 20, 2007. The failure of Payee to
provide the Payment Notice within the required time period will constitute a waiver of such right
without further action of either party.



4. Mandatory Prepayment Upon Sale Transaction. If Maker or its controlling stockholders
enter into a definitive agreement relating to a Sale Transaction, Maker shall give Payee at least
fifteen (15) days prior written notice of the proposed date for consummation of the Sale
Transaction. Despite any other provisions hereof, the entire principal balance of this Note, and
all accrued but unpaid interest, shall be due and payable immediately prior to (and as a condition
of) the closing on the Sale Transaction. In addition to the payment of outstanding principal and
any accrued but unpaid interest, Maker shall also pay to Payee a prepayment penalty amount equal to
the present value of the remaining unpaid coupons that would otherwise by paid thru maturity but
for the Sale Transaction discounted at a rate equal to (x) the then U.S.




 









 







Treasury rate for 5-year Notes as reported by Bloomberg on the date of such Prepayment Notice,
plus (y) 100 basis points.



For purposes of this Note, a “Sale Transaction” shall mean the sale, license or other disposition
of all or substantially all of Maker’s assets, the sale or exchange of a majority of the
outstanding voting stock of Maker or the merger or consolidation of Maker into or with any other
entity (except in the case where the holders of Maker’s voting stock prior to consummation of such
merger or consolidation hold at least a majority of the outstanding voting securities of the
surviving entity).



4. Default. The occurrence of any one or more of the following events shall constitute an
event of default, upon which Payee may declare the entire principal amount of this Note, together
with all accrued but unpaid interest, to be immediately due and payable:




     (a) The Maker shall fail to make any required payment of principal or interest when due, and
such failure shall continue through five days after Payee gives written notice of such failure to
Maker.



     (b) The Maker shall be in default of any term or provision of any of the promissory notes sold
pursuant that certain Purchase Agreement dated September 7, 2005 among Maker, the Payee and the
other purchasers named therein (the “September 2005 Notes"), or any of the promissory notes sold
pursuant to that certain Purchase Agreement dated March 25, 2005 among Maker, the Payee and the
other purchasers named there (the “March 2005 Notes"), or any of the promissory notes sold pursuant
to that certain Purchase Agreement dated September 17, 2004 among Maker, the Payee and the other
purchasers named therein (the “September 2004 Notes"), "), or any of the promissory notes sold
pursuant to that certain Purchase Agreement dated December 13, 2006 among Maker, the Payee and the
other purchasers named therein (the “December 2006 Notes"), and such default is not cured within
five days after written notice from Payee to Sutura.



     (c) The Maker shall become insolvent or shall fail to pay, or become unable to pay, its debts
as they become due; or any bankruptcy, reorganization, debt arrangement or other proceeding under
any bankruptcy or insolvency law shall be instituted by or against the Maker.



     (d) The Maker incurs an event of default under the terms of any of the other Series Notes.



     Without limiting the above, the Maker acknowledges that payment on the scheduled due date in
Sections 2 is of essence and that any failure to timely pay any installment of principal or
interest (within any permitted grace period above) permits Payee to declare this Note immediately
due in cash in its entirety without any prior notice of any kind to Maker, except for the specific
notices provided above. Further, the Maker agrees that any event of default under this Note shall
constitute an event of default under each of the other Series Notes, the December 2006 Notes, the
September 2005 Notes, the March 2005 Notes and the September 2004 Notes.


5. Applicable Law. THE VALIDITY, CONSTRUCTION AND ENFORCEABILITY OF THE NOTE SHALL BE
GOVERNED BY THE INTERNAL LAWS OF THE STATE OF




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MINNESOTA, WITHOUT GIVING EFFECT TO CONFLICT OF LAWS PRINCIPLES THEREOF.



6. Waivers. The Maker hereby waives presentment for payment, notice of dishonor, protest
and notice of payment and all other notices of any kind in connection with the enforcement of this
Note.



7. No Setoffs. The Maker shall pay principal and interest under the Note without any
deduction for any setoff or counterclaim.



8. Costs of Collection. If this Note is not paid when due, the Maker shall pay Payee’s
reasonable costs of collection, including reasonable attorney’s fees.




	 	 	 	 	 
	 	SUTURA, INC.


 	 
	 	By  	 	 
	 	 	David Teckman, President and 	 
	 	 	Chief Executive Officer 	 
	 




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