EXHIBIT 10.39
EQUIPMENT SCHEDULE
TO
MASTER LOAN AND SECURITY AGREEMENT
MASTER LOAN AND SECURITY AGREEMENT NO. 7237 DATED: June 18, 1998
EQUIPMENT SCHEDULE NO. 05
LENDER: CUSTOMER:
OXFORD VENTURE LEASING, LLC PARADIGM GENETICS, INC.
0000 XXXXXXXXXX XXXXX, XXX 0000 000 XXXXXXXXX XXXXX, XXX 0
XXXXXX, XX 00000 RESEARCH XXXXXXXX XXXX, XX 00000
LENDER AND CUSTOMER HAVE ENTERED INTO MASTER LOAN AND SECURITY AGREEMENT NO.
7237 DATED JUNE 18, 1998 (THE "AGREEMENT") WHICH IS INCORPORATED HEREIN. THIS
IS AN EQUIPMENT SCHEDULE TO THE AGREEMENT. ALL WORDS AND TERMS USED HEREIN AND
NOT SPECIFICALLY DEFINED HEREIN SHALL HAVE THE SAME MEANINGS AS SET FORTH IN THE
AGREEMENT.
1. EQUIPMENT LOCATION (if other than above address of Customer): none
2. EQUIPMENT: (See attached Exhibit A)
3. ACQUISITION COST OF THE EQUIPMENT: $615,671.43.
4. SUPPLIER(S): (See attached Exhibit A)
5. THE LOAN AND LOAN AGREEMENT REPAYMENT. As requested by Customer
pursuant to the Agreement, Lender agrees to lend to Customer the sum of Six
Hundred Fifteen Thousand Six Hundred Seventy One and 43/100 dollars. Customer
agrees to repay the Loan Agreement in successive installments (which installment
payments are inclusive of interest) as set forth in the following Schedule:
SCHEDULE
Advance Payment Amount: $6,541.51.
Number of Installments (Exclusive of Advance Payment): 48
Payment Period:
__ X __ Monthly _____ Quarterly
Periodic Installment Payment Amount Per Period: $6,541.51 for the next
eleven (11) months, followed by $19,026.09 for thirty-six months,
followed by one payment of $61,567.14.
Commencement Date: ___________________
Special Provisions (if any): none
6. SECURITY DEPOSIT: None
7. DISBURSEMENT OF PROCEEDS. Customer hereby authorizes Lender to
disburse the $615,671.43 proceeds as follows:
(a) $615,571.43 to: Paradigm Genetics, Inc.
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$615,671.43 TOTAL PROCEEDS
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Customer may direct the Lender in writing to withhold payments from Supplier(s),
either now or in the future. Lender shall be entitled to rely on such written
direction of Customer as being conclusive as to the intent of the Customer with
regard to withheld payments.
Customer hereby acknowledges and agrees that it shall constitute an additional
Event of Default under the Loan Agreement if, for any reason, the Acquisition
Cost of the Equipment has not been fully paid to the appropriate Supplier(s)
thereof within ten (10) days after demand therefor by Lender. Customer hereby
agrees to indemnify, and hold harmless Lender from and against any liability,
claim, loss or damage, including Attorneys' Fees and Expenses, that may be
incurred by Lender as a result of any amounts to be withheld hereunder,
including any claims of the Supplier(s) therefor.
8. ADJUSTMENTS: Customer acknowledges that payments under the Loan
Agreement herein are based upon the Acquisition Cost of the Equipment set forth
above, and as a result of authorized changes to the Equipment, the final
Acquisition Cost of the Equipment may increase or decrease by up to 10%. In
such event, the Loan Payments shall be adjusted accordingly, and Customer
authorizes Lender to correct the Loan Agreement (and all related documentation)
to reflect such changes and Customer, if requested by Lender, shall confirm such
changes to Lender in writing.
9. SUPPLY CONTRACT: Customer acknowledges either that (a) Customer has
reviewed and approved any written purchase agreement or purchase order covering
the Equipment ("Supply Contract") purchased from Supplier, or (b) Lender has
informed or advised Customer, in writing, either previously or by the Loan
Agreement, of the following: (i) the identity of the Supplier, (ii) that
Customer may have rights under the Supply Contract and (iii) that Customer may
contact the Supplier for a description of any such rights Customer may have
under the Supply Contract. If Customer has entered into a written Supply
Contract, then Customer hereby assigns to Lender all of Customer's rights and
interests in and to the Equipment and the Supply Contract. If requested by
Lender, Customer shall obtain any consent required for such assignment. If
Customer has not entered into any such Supply Contract, Customer authorizes
Lender to (and Lender may at its option) act on behalf of Customer to obtain a
Supply Contract from Supplier. Except for the obligation to pay Supplier for
the Equipment, if (and only if) the Equipment is accepted by Customer under the
Loan Agreement, such assignment shall not include any of Customer's obligations
under such Supply Contract and Customer shall at all times remain liable to
perform all of its duties and obligations under the Supply Contract to the same
extent as if an assignment has not occurred. Customer hereby represents and
warrants that: (i) Customer has delivered herewith a true and correct copy of
the Supply Contract, neither Supplier nor Customer is in default under the
Supply Contract and it shall not be amended
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without Lender's prior written consent and (ii) the Supply Contract is free from
all claims, security interests, liens and encumbrances, except for the interest
being conveyed by the Loan Agreement. Customer indemnifies and holds Lender
harmless with respect to any and all claims relating to the performance of
Customer's obligations under the Supply Contract.
10. SEE RATE ADJUSTMENT RIDER ATTACHED AND INCORPORATED BY REFERENCE.
By execution hereof, the signer certifies that he/she is a duly authorized
officer, partner or proprietor of Customer and that he/she has read, accepted
and duly executed this Equipment Schedule to the Master Loan and Security
Agreement on behalf of Customer.
ACCEPTED AT LESSOR'S OFFICE AT MCLEAN, VIRGINIA.
OXFORD VENTURE LEASING, LLC PARADIGM GENETICS, INC
(LENDER) (CUSTOMER)
By: By:
--------------- -------------
Name: X. X. Xxxxxxxxx Name: Xxxx Xxxxx
--------------- -------------
Title: President Title: CEO/President
--------------- -------------
Date: 10/28/98 Date: 10/28/98
--------------- -------------
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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. 05 to Master Loan and Security Agreement No. 7237
dated June 18, 1998 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 SCHEDULE EXHIBIT A ATTACHED
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 PARADIGM GENETICS, INC
(LENDER) (CUSTOMER)
By: By:
--------------- --------------
Name: X. X. Xxxxxxxxx Name: Xxxx Xxxxx
--------------- --------------
Title: Title: CEO/President
--------------- --------------
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PROMISSORY NOTE TO: MASTER LOAN AND SECURITY AGREEMENT NO. 7237
Dated June 18, 1998
EQUIPMENT SCHEDULE NO. 05
U.S. $615,671.43 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. Six Hundred Fifteen Thousand Six Hundred Seventy-One and 43/100
dollars ($615,671.43), 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 time. 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 OF, 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: Xxxx Xxxxx
-----------------------------
Title: CEO/President
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