EXHIBIT 10.35
OXFORD VENTURE LEASING, LLC.
0000 XXXXXXXXXX XXXXX, XXXXX 0000
XxXXXX, XX 00000
000-000-0000 (PHONE) 000-000-0000 (FAX)
June 18, 1998
Paradigm Genetics, Inc.
000 Xxxxxxxxx Xx. Xxxx 0
Xxxxxxxx Xxxxxxxx Xxxx, XX 00000
RE: Master Loan and Security Agreement No. 7237 and Schedule No. 1 both
dated June 18, 1998 and Promissory Note thereto,
Ladies and Gentlemen:
Oxford Venture Leasing, LLC requires insurance coverage with companies and in
form satisfactory to it as one of the conditions to enter into the above
described lease or loan with your Company covering the Equipment listed on the
attached schedule or exhibit. This insurance must be carried throughout the
term of the lease/loan. Please sign and return this letter. Please forward a
copy of this letter to your insurance company to process a certificate with the
following requirements:
PROPERTY COVERAGE:
------------------
* Covering all risks of physical loss, damage, destruction or theft of the
Equipment, with extended coverage.
* Loss payable to OXFORD VENTURE LEASING, LLC. AND ITS ASSIGNS.
* In an amount equal to not less than the Equipment's full replacement value
of [$398,913.07_].
LIABILITY COVERAGE:
-------------------
* $5,000,000.00 combined single limit for each occurrence general liability
------------ ---------------
coverage.
* Naming OXFORD VENTURE LEASING, LLC. AND ITS ASSIGNS as Additional Insured
PROPERTY AND LIABILITY COVERAGE:
--------------------------------
* The Equipment should be described specifically or by reference to an
attached schedule or exhibit or by reference to the above lease or loan and
account number.
* Carrier should be rated A-, VIII (or better) by A.M. Best Company.
* Notices to Oxford Venture Leasing, LLC are to be sent to 0000 Xxxxxxxxxx
Xxxxx, xxxxx 0000, XxXxxx, Xxxxxxxx 00000.
Attached is a sample insurance certificate. Additional provisions may be
required for vehicles or other specialized collateral or if otherwise applicable
to the transaction.
ADDITIONAL POLICY PROVISIONS:
-----------------------------
* The policies must provide that they will not be canceled or altered without
thirty (30) days prior written notice to OXFORD VENTURE LEASING, LLC.
* The policies insuring against loss, damage, destruction or theft must
provide that the coverage will not be invalidated against OXFORD VENTURE
LEASING, LLC. AND ITS ASSIGNS because of any violation of any condition or
warranty contained in any policy or application therefor by the insured or
others.
Please feel free to contact or have your insurance agent contact [name of
Phoenixcor documentation person] at your earliest convenience. Please be aware
that failure to have an insurance certificate in effect that meets the above
requirements will delay the commencement and/or funding of the above lease or
loan.
Very truly yours, AGREED TO AND ACCEPTED BY:
OXFORD VENTURE LEASING, LLC. PARADIGM GENETICS, INC.
BY:_____________________________
TITLE:__________________________
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EXHIBIT A
LIST OF EQUIPMENT
The following list and description of Equipment supplements and forms a part of
Equipment Schedule No. 1 dated June 18, 1998 to Master Loan and Security
Agreement No. 7237 between Lender and Customer and may be attached to said
Equipment Schedule and any related UCC Financing Statements, or other document
relating to the Master Loan and Security Agreement the Equipment Schedule or any
other document describing the Equipment.
See Attached Equipment list
Description:
Supplier:
Model No.:
Serial No.:
Equipment Description:
Quantity:
Equipment Location:
All property listed above, together with any and all attachments, accessions,
additions, replacements, improvements, modifications and substitutions thereto
and therefor and a right to use license for any software related to any of the
foregoing now or hereafter acquired and all proceeds, in the form of goods,
accounts, chattel paper, documents, instruments and insurance proceeds.
OXFORD VENTURE LEASING, LLC PARADIGNM GENETICS, INC.
(LENDER) (CUSTOMER)
By:___________________________ By:___________________________
Name:_________________________ Name:_________________________
Title:________________________ Title:________________________
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ACKNOWLEDGMENT OF ASSIGNMENT
----------------------------
TO: PHOENIXCOR, INC.
00 XXXXX XXXXXX
XXXXX XXXXXXX, XXXXXXXXXXX 00000
RE: ASSIGNMENT OF LOAN WITH OXFORD VENTURE LEASING, LLC
Ladies and Gentlemen:
Reference is made to the annexed Master Loan and Security Agreement No.
7237 dated June 18, 1998 (the "Loan Agreement") between Oxford Venture Leasing,
LCC ("Lender") and the undersigned Paradigm Genetics, Inc. ("Borrower"),
covering the collateral described in the Loan Agreement (the "Collateral"). We
consent to Lender's assignment of the Loan Agreement to you, acknowledge receipt
of notice of such assignment and in consideration of your advancement of funds
to the Lender with respect to the Loan Agreement, we hereby acknowledge and
agree that:
1. The Loan Agreement is in full force and effect and constitutes our
valid and binding obligation, enforceable in accordance with their terms. We
have not entered into any agreement with any person modifying the provisions of
the Loan Agreement and we cannot make any future modification, termination or
settlement of amounts due under the Loan Agreement except with the consent of
you or your assigns.
2. The Loan Agreement describes the entire agreement between Lender and us
regarding our use of and rights and obligations with respect to the Collateral
except: (none). There are no "side letters" or verbal understandings between us
and Lender modifying the provisions of the Loan Agreement or otherwise affecting
our obligations to make the payments thereunder.
3. The Collateral was just delivered to our premises located at 000
Xxxxxxxxx Xxxxx, Xxxxxxxx 6, Research Xxxxxxxx Xxxx, XX 00000 on or after the
invoke dates set forth on the attached Equipment Schedule Exhibit A and has been
unconditionally accepted by us and is in satisfactory working order on the date
hereof. We agree to make no claim against you with respect to the Collateral. We
further agree that you may inspect the Collateral on reasonable prior verbal or
written notice to us.
4. Lender has assigned to you all of its right, title and interest in the
Loan Agreement but none of its obligations and you are the Lender of record
under the Loan Agreement. We remit to you all of the forty-nine (49) successive
monthly installments consisting of twelve (12) payments of $4,238.45, followed
by thirty-six payments of $12,324.42, followed by one final payment of
$39,891.31 commencing on the funding date on or about July 8, 1998 and
continuing
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on the same day of every month thereafter. We will have no obligation to you and
you will have no obligation to us with respect to any installments under the
Note due or paid to Lender prior to such date. We agree to make all the
installments to you or your assigns unconditionally without defense, setoff or
counterclaim. However, we preserve all our rights against Lender. We agree to
make all payments due and to give all notices and information required under the
Loan Agreement to you at your above address or to any revised address of which
you or your assigns may advise us.
5. We have received no notice of a prior sale, transfer, assignment,
hypothecation or pledge of the Loan Agreement, the amounts payable thereunder or
the Collateral.
6. No event of default (or that which would constitute an event of default
under the Loan Agreement with the passage of time, giving of no notice, or both)
on our part, or to our knowledge, on the part of Lender, has occurred in the
performance of each such party's obligations under the Loan Agreement.
7. This Acknowledgment of Assignment shall inure to the benefit of your
successors and assigns.
8. We acknowledge that the Loan and all related documents are governed by
the laws of the State of Connecticut and were entered into with the
understanding that they where to be assigned to you and you require that the
laws of Connecticut govern your transactions so that the documents will be
applied and interpreted uniformly. We agree that such laws bear a reasonable
relationship to the Loan and related documents.
DATED: June 18, 1998
Very truly yours,
PARADIGM GENETICS, INC.
By:___________________________
Title:________________________
ACKNOWLEDGEMENT OF LENDER
-------------------------
The undersigned Lender under the Loan Agreement defined in the foregoing
Acknowledgment of Assignment hereby consents to the foregoing and confirms that
it has assigned all remaining installments under the Loan Agreement to
Phoenixcor, Inc. as specified in the Acknowledgment of Assignment.
DATED: June 18, 1998
OXFORD VENTURE LEASING, LLC
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(LENDER),
BY:_______________________________
TITLE:____________________________
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PROMISSORY NOTE TO: MASTER LOAN AND SECURITY AGREEMENT NO.
7237 Dated June 18, 1998
EQUIPMENT SCHEDULE NO. 1
U.S. $398,913.07 McLean, Virginia
Dated: ________________
FOR VALUE RECEIVED, Paradigm Genetics. Inc., a North Carolina corporation
(the "Borrower"), hereby promises to pay to the order of OXFORD VENTURE LEASING,
LLC. or its successors or assigns (the "Payee") at its offices located at 0000
Xxxxxxxxxx Xxxxx, xxxxx 0000, XxXxxx, Xxxxxxxx 00000 or at such other place as
the Payee or any holder hereof may from time to time designate, the principal
amount of U.S. three hundred ninety eight thousand nine hundred thirteen and
07/100 DOLLARS ($398,913.07), with interest (based on a year of 360 days and 30
day months) on the principal amount hereof remaining from time to time unpaid,
such principal and interest to be paid in consecutive monthly installments until
fully paid in the manner and at a rate of interest per annum as determined and
provided in the Loan Agreement. Anything in this Note to the contrary
notwithstanding, in the event that any payment of interest hereunder shall
exceed the legal limit, such amount in excess of such limit shall be deemed a
payment of principal hereunder.
This Note evidences a loan by the Payee to the undersigned pursuant to the Loan
Agreement indicated above between the undersigned and the Payee as from time to
time may be amended restated, replaced, supplemented, substituted for or
renewed, and the holder of this Note is entitled to the benefits thereof,
including without limitation, the security interest in the Equipment granted
therein. Each term defined in the Loan Agreement and not otherwise defined
herein shall have the same definition when used herein.
The principal hereof and accrued interest hereon shall become forthwith due and
payable as provided in the Loan Agreement Payments hereunder not made when due
shall accrue late charges as provided in the Loan Agreement. This Note may not
be prepaid in whole or in part except as otherwise specifically provided in the
Loan Agreement.
The Borrower hereby waives diligence, demand, presentment, protest and notice of
any kind, and assents to extensions of the time of payment, release, surrender
or substitution of security, or forbearance or other indulgence, without notice.
No act or omission of the Payee, including without limitation any failure to
exercise any right, remedy or recourse, shall be deemed to be a waiver or
release of such right remedy or recourse. Any waiver or release may be effected
only by a written document executed by Payee and then only to the extent
specified therein. The undersigned hereby promises to pay all Attorneys Fees
and Expenses that may be incurred in connection with the enforcement and/or
collection of this Note.
The undersigned authorizes the Payee to insert above as the date of the Note,
the date on which Payee disburses funds pursuant to the Loan Agreement.
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This Note is freely assignable by the Payee, in whole or in part, and from time
to rime. All of the terms and provisions of this Note inure to and are binding
upon the heirs, executors, administrators, successors, representatives,
receivers, trustees and assigns of the parties. None of the rights or
obligations of the Borrower hereunder may be assigned or otherwise transferred
without the prior written consent of the Payee.
THIS NOTE AND THE LEGAL RELATIONS OF THE PARTIES HERETO SHALL IN ALL RESPECTS BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
CONNECTICUT, / WITHOUT REGARD TO PRINCIPLES REGARDING THE CHOICE OF LAW.
BORROWER HEREBY CONSENTS AND SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF THE
COURTS OF THE STATE OF CONNECTICUT AND THE FEDERAL DISTRICT COURT FOR THE
DISTRICT OF CONNECTICUT FOR THE PURPOSES OF ANY SUIT, ACTION OR OTHER PROCEEDING
ARISING OUT OF ITS OBLIGATIONS HEREUNDER AND EXPRESSLY WAIVES ANY OBJECTIONS
THAT IT MAY HAVE TO THE VENUE OF SUCH COURTS. BORROWER HEREBY EXPRESSLY WAIVES
ANY RIGHT TO TRIAL BY JURY IN ANY ACTION BROUGHT ON OR WITH RESPECT TO THIS
NOTE. Any action by Borrower against Payee for any cause of action under this
Note shall be brought within one year after any such cause of action first
arises. If requested by Payee, Borrower agrees that prior to the commencement
of any litigation regarding the terms and conditions of this Note, the parties
hereto shall subject themselves to non-binding mediation with a qualified
mediator mutually satisfactory to both parties.
IN WITNESS WHEREOF, the Borrower by its duly authorized officer has
executed and delivered this Note as of the date first above written.
Paradigm Genetics, Inc.
Borrower
By:_______________________________
Name:_____________________________
Title:____________________________
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RATE ADJUSTMENT RIDER AND ACKNOWLEDGMENT
RATE ADJUSTMENT RIDER AND ACKNOWLEDGMENT (this "Rider") to the Promissory Note
dated June 18, 1998 (the "Note") lined in connection with the Master Loan and
Security Agreement No. 7237 dated June 18,1998 and the Equipment Schedule No. 01
dated June 18, 1998 (collectively, the "Loan Agreement"), between Paradigm
Genetics, Inc., as borrower (the "Customer") and OXFORD VENTURE LEASING, LLC, as
Lender ("Oxford"). This Rider is entered into pursuant to and incorporates by
this reference all of the terms and provisions of the Loan Agreement and Note.
By its execution and delivery of this Rider, Customer hereby reaffirms all of
the representations and warranties and covenants contained in the Loan Agreement
and the Note as of the date hereof and further represents and warrants to Lender
that no Default has occurred and is continuing as of the date hereof.
1. Purpose. This Rider amends and restates the terms of the payments set forth
in the Note.
2. Definitions. The following terms shall have the following meanings herein:
(a) "Adjustment Date" shall mean the date Oxford disburses any portion of the
proceeds of the Loan Agreement.
(b) "Final T-Note Average" shall mean the average of the yields on U.S.
Treasury Notes maturing in four years, as published by the Dow Xxxxx Telerate
Access Service, Page 19901, for the close of business on each business day of
the two full calendar weeks immediately preceding the week containing the
Adjustment Date.
(c) "Preliminary Payments" shall mean the payments set forth in the Equipment
Schedule and the Note, consisting of $4,238.45 due upon execution (the "Advance
Payment") followed by eleven (11) consecutive monthly payments of $4,238.45,
followed by thirty-six (36) consecutive monthly payments of $12,324.42, followed
by one (1) final payment of $39,891.31.
(d) "Preliminary T-Note Avenge" shall mean 5.615%.
3. Adjustment of Payments. The Preliminary Payments were calculated based on a
spread over the Preliminary T-Note Average. Should the Final T-Note Average
differ from the Preliminary T-Note Average, then the Preliminary Payments shall
be revised. For each increase or decrease of one (1) basis point (i.e., 1/100 of
1%) in the Final T-Note Average above or below the Preliminary T-Note Average,
the Preliminary Payments shall he revised as follows (complete below as
applicable):
The Advance Payment, due upon execution of the Equipment Schedule, and the next
eleven payments shall remain unchanged.
Each of the payments for the months number 13-48 initially scheduled in the
amount of $12,324.42 shall increase or decrease by $3.19.
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THE CALCULATION OF THE CONTRACT PAYMENTS UNDER THIS RIDER WILL SUPERSEDE ANY
PRIOR PROPOSAL OR QUOTATION. CUSTOMER HEREBY ACKNOWLEDGES AND AGREES TO TUE
CALCULATION OP TIE PAYMENT SCHEDULE SET FORTH HEREIN.
4. Oxford's Requirements. The commencement of the Loan Agreement is subject to
satisfaction of all documention and credit requirements of Oxford. If such
requirements are not satisfied by the Adjustment Date, then Oxford may, at its
sole option, declare that the Adjustment Date shall be the date when such
requirements are satisfied.
Dated as of June 18, 1998
OXFORD VENTURE LEASING, LLC PARADIGM GENETICS, INC.
By:____________________________ By:____________________________
Name:__________________________ Name:__________________________
Title:_________________________ Title:_________________________
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TAX ACKNOWLEDGEMENT AND INDEMNIFICATION
Oxford Venture Leasing, LLC
0000 Xxxxxxxxxx Xxxxx, xxxxx 0000
XxXxxx, XX 00000
This Tax Acknowledgment and Indemnification ("Acknowledgment") is attached
to and made a part of that certain Loan Schedule No. 01 (the "Loan Schedule"),
to Master Loan and Security Agreement No. 7237, dated as of June 18, 1998 (the
"Loan Agreement"), by and between Oxford Venture Leasing, LLC and the
undersigned.
Notwithstanding any provision to the contrary in the Loan Agreement, we
hereby confirm our understanding and acknowledgment of the following:
1. While you normally xxxx us for taxes, if any, payable on the rentals
(sales/use taxes), you will not xxxx us for or furnish any advice with respect
to any taxes on the Equipment ("Taxes"), including personal property, ad valorem
or other taxes imposed by any state, federal, local or foreign government in
connection with the purchase, possession, ownership or operation of the
Equipment.
2. It is our obligation to and we shall timely submit such reports,
declarations, inventories and other documentation, file such returns, and pay
the applicable Taxes when due in connection with the Equipment. If local law
prohibits us from making direct payment or filing the applicable report or
return it is our responsibility to and we shall immediately advise you in
writing to such effect and furnish you with the forms, data and information as
will enable you to make and file the return or report, along with our payment
for the Tax due. Any accrual of interest and penalties resulting from our
failure to comply with the foregoing, or otherwise, is and shall be our
responsibility.
3. Upon your request, we shall provide you with copies of satisfactory
documentation and proof of payment of such Taxes. We shall indemnify you and
hold you harmless from and against any such Taxes, and any penalties and
interest thereon, and any other liabilities and damages that you may incur
arising out of our failure to pay when due such Taxes. The indemnity and
covenants set forth herein shall continue in full force and effect and shall
survive the expiration or earlier termination of the Loan Agreement or the Loan
Schedule.
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All capitalized terms used herein and not defined herein shall have the
meanings set forth or referred to in the Loan Schedule. Except as specifically
set forth herein, all of the terms and conditions of the Loan Agreement and the
Loan Schedule shall remain in full force and effect and are hereby ratified and
affirmed. To the extent that the provisions of this Acknowledgment conflict
with any provisions contained in the Loan Agreement or the Loan Schedule, the
provisions of this Acknowledgment shall control.
Very truly yours,
PARADIGM GENETICS, INC.
By:_______________________________
Title:____________________________
Date:_____________________________
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