LOAN AGREEMENT
This LOAN AGREEMENT (this "Agreement") is made as of the 23rd day of
October 1998 by and between Senesco, L.L.C., a New Jersey limited liability
company (the "Company"), and Parenteau Corporation Inc. (the "Lender").
The parties hereby agree as follows:
SECTION 1. AMOUNT AND TERMS OF THE LOAN
1.1 THE LOAN. Subject to the terms of this Agreement, the Company shall
borrow from the Lender and the Lender shall lend to the Company up to Two
Hundred Two Thousand Dollars ($202,000) (the "Loan") pursuant to a promissory
note in the form attached hereto as Exhibit A (the "Note").
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1.2 DRAW DOWN SCHEDULE. The Company agrees to receive $94,000 of the
Loan and the Lender agrees to pay the Company $94,000 of the Loan upon the
execution of the Note. The Company agrees to receive the remainder of the Loan
and the Lender agrees to pay the Company upon and pursuant to the schedule
attached hereto as Exhibit B (the "Drawdown Schedule").
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1.3 INTEREST. The Loan shall bear interest on the unpaid principal
balance thereof from the date of disbursement until the Loan is repaid in full
at a per annum rate equal to two percent (2%) above the Prime Rate as reported
in the Wall Street Journal on the date of execution of the Note. Interest shall
be payable at such time as the principal is due hereunder.
1.4 METHOD OF PAYMENT TO LENDER. All payments of principal and interest
on the Note shall be paid directly to the Lender at its office at 0000 Xx.
Xxxxxxx, Xxxxx 000, Xxxxxxxx, XX X0X 0X0, Xxxxxx, Attn.: Francois Parenteau or
to such other place as the Lender shall designate.
SECTION 2. THE CLOSING
2.1 CLOSING DATE. The closing of the purchase and sale of the Note (the
"Closing") shall be held on October 23, 1998 or at such other time as the
Company and the Lender shall agree (the "Closing Date").
2.2 DELIVERY. At the Closing (i) the Lender will deliver to the Company
a check or wire transfer funds in the amount of $94,000, and (ii) the Company
shall deliver to the Lender, a Note representing the Loan. The Lender shall pay
the Company the remainder of the Loan pursuant to Section 1.2.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to the Lender as follows:
3.1 CORPORATE POWER. The Company will have at the Closing Date all
requisite corporate power to execute and deliver this Agreement and to carry out
and perform its obligations under the terms of this Agreement.
3.2 AUTHORIZATION. All corporate action on the part of the Company
necessary for the authorization, execution, delivery and performance of this
Agreement by the Company and the performance of the Company's obligations
hereunder, including the issuance and delivery of the Note, has been taken or
will be taken prior to the Closing. This Agreement and the Note, when executed
and delivered by the Company, shall constitute valid and binding obligations of
the Company enforceable in accordance with their terms, subject to laws of
general application relating to bankruptcy, insolvency, the relief of debtors
and, with respect to rights to indemnity, subject to federal and state
securities laws.
3.3 GOVERNMENTAL CONSENTS. All consents, approvals, orders or
authorizations of, or registrations, qualifications, designations, declarations
or filings with, any governmental authority, required on the part of the Company
in connection with the valid execution and delivery of this Agreement, the
offer, sale or issuance of the Note or the consummation of any other transaction
contemplated hereby shall have been obtained and will be effective at the
Closing.
3.4 OFFERING. Assuming the accuracy of the representations and
warranties of the Lender contained in Section 4 hereof, the offer, issue and
sale of the Note is and will be exempt from the registration and prospectus
delivery requirements of the Securities Act of 1933, as amended (the "1933
Act"), and has been registered or qualified (or are exempt from resignation and
qualification) under the registration, permit or qualification requirements of
all applicable state securities laws.
SECTION 4. REPRESENTATION AND WARRANTIES OF THE LENDER
4.1 PURCHASE FOR OWN ACCOUNT. The Lender represents that it is
acquiring the Note solely for its own account and beneficial interest for
investment and not for sale or with a view to distribution of the Note or any
part thereof, has no present intention of selling (in connection with a
distribution or otherwise), granting any participation in, or otherwise
distributing the same, and does not presently have reason to anticipate a change
in such intention.
4.2 NO COMMISSIONS. The Lender represents that it has no knowledge that
any commission or other remuneration is due or payable, directly or indirectly,
to any party arising from the transaction contemplated hereby.
4.3. ACCREDITED INVESTOR. The Lender is an "accredited investor" as
such term is defined in Rule 501 under the Securities Act.
SECTION 5. MISCELLANEOUS
5.1 PROHIBITION ON TRANSFER OR ASSIGNMENT. The Lender agrees that it
shall not sell, transfer, assign, or otherwise convey the Note without the prior
written approval of the Company, which approval shall not be unreasonably
withheld.
5.2 BINDING AGREEMENT. The terms and conditions of this Agreement shall
inure to the benefit of and be binding upon the respective successors and
assigns of the parties. Nothing in this Agreement, express or implied, is
intended to confer upon any third party any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement.
5.3 GOVERNING LAW. This Agreement shall be governed by and construed
under the laws of the State of New Jersey as applied to agreements among New
Jersey residents, made and to be performed entirely within the State of New
Jersey.
5.4 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
5.5 TITLES AND SUBTITLES. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
5.6 NOTICES. Any notice required or permitted under this Agreement
shall be given in writing and shall be deemed effectively given upon personal
delivery or upon deposit with the United States Post Office, by registered or
certified mail, postage prepaid, addressed to the Company at 00 Xxxxxxxx Xxxxxx,
Xxxxxxxxx, Xxx Xxxxxx 00000, or to the Lender at 0000 Xx. Xxxxxxx, Xxxxx 000,
Xxxxxxxx, XX X0X 0X0, Xxxxxx, Attn.: Francois Parenteau, or at such other
address as such party may designate by ten (10) days advance written notice to
the other party.
5.7 MODIFICATION; WAIVER. No modification or waiver of any provision of
this Agreement or consent or departure therefrom shall be effective unless in
writing and approved by the Company and the Lender.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
COMPANY: LENDER:
SENESCO, L.L.C. PARENTEAU CORPORATION INC.
By:/s/ Phillippe X. Xxxxxxxxxx By:/s/ Francois Parenteau
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Name: Phillippe X. Xxxxxxxxxx Name: Francois Parenteau
Title: Managing Member Title:
Exhibit A
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THIS NOTE HAS BEEN ISSUED PURSUANT TO AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF FEDERAL AND STATE SECURITIES LAWS AND MAY NOT BE SOLD OR
TRANSFERRED WITHOUT COMPLIANCE WITH SUCH REQUIREMENTS OR A WRITTEN OPINION OF
COUNSEL ACCEPTABLE TO THE OBLIGOR THAT SUCH TRANSFER WILL NOT RESULT IN ANY
VIOLATION OF SUCH LAWS OR AFFECT THE LEGALITY OF ITS ISSUANCE.
PROMISSORY NOTE
$202,000 October 23, 1998
FOR VALUE RECEIVED, the undersigned, Senesco, L.L.C., a limited liability
company organized and existing under the laws of the State of New Jersey (the
"Obligor"), hereby promises to pay to the order of Parenteau Corporation Inc.
(the "Holder"), the principal sum of Two Hundred Two Thousand Dollars ($202,000)
payable as set forth below. The Obligor also promises to pay to the order of the
Holder interest on the principal amount hereof at a rate per annum equal to two
percent (2%) above the Prime Rate as reported in the Wall Street Journal on the
date of this Note, which interest shall be payable at such time as the principal
is due hereunder. Interest shall be calculated on the basis of a year of 365
days and for the number of days actually elapsed. Any amounts of interest and
principal not paid when due shall bear interest at the maximum rate of interest
allowed by applicable law. The payments of principal and interest hereunder
shall be made in coin or currency of the United States of America which at the
time of payment shall be legal tender therein for the payment of public and
private debts.
This Note shall be subject to the following additional terms and
conditions:
1. Payments. Subject to Section 2 hereof, all principal and interest
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due hereunder shall be payable in one (1) installment on October 22,
1999 (the "Maturity Date"); provided, however, that the parties may
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mutually agree to extend the term of this Note beyond the Maturity
Date. In the event that any payment to be made hereunder shall be or
become due on a Saturday, Sunday or any other day which is a legal
bank holiday under the laws of the State of New Jersey, such payment
shall be or become due on the next succeeding business day.
2. Prepayments. In connection with the merger (the "Merger") between
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the Obligor and Xxxx Leisure Acquisition, Inc., a wholly-owned
subsidiary of Xxxx Leisure USA, Inc., an Idaho corporation, to create
Senesco Technologies, Inc., an Idaho corporation ("STI"), in the event
STI consummates an equity financing through the issuance of preferred
stock or other equity securities or securities convertible into equity
that results in proceeds to STI in excess of $1,500,000 (an "Equity
Financing"), the entire unpaid principal amount of this Note (together
with accrued interest hereon) shall become due and immediately payable
to the Holder upon consummation of such Equity Financing.
3. No Waiver. No failure or delay by the Holder in exercising any right,
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power or privilege under this Note shall operate as a waiver thereof
nor shall any single or partial exercise thereof preclude any other or
further exercise thereof or the exercise of any other right, power or
privilege. The rights and remedies herein provided shall be cumulative
and not exclusive of any rights or remedies provided by law. No course
of dealing between the Obligor and the Holder shall operate as a
waiver of any rights by the Holder.
4. Waiver of Presentment and Notice of Dishonor. The Obligor and all
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endorsers, guarantors and other parties that may be liable under this
Note hereby waive presentment, notice of dishonor, protest and all
other demands and notices in connection with the delivery, acceptance,
performance or enforcement of this Note.
5. Place of Payment. All payments of principal of this Note and the
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interest due thereon shall be made at such place as the Holder may
from time to time designate in writing.
6. Events of Default. The entire unpaid principal amount of this Note
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and the interest due hereon shall, at the option of the Holder
exercised by written notice to the Obligor, forthwith become and be
due and payable, without presentment, demand, protest or other notice
of any kind, all of which are hereby expressly waived, if any one or
more of the following events (herein called "Events of Default") shall
have occurred (for any reason whatsoever and whether such happening
shall be voluntary or involuntary or come about or be effected by
operation of law or pursuant to or in compliance with any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body) and be continuing at the time of
such notice, that is to say:
a) if default shall be made in the due and punctual payment of the
principal of this Note and the interest due thereon when and as
the same shall become due and payable, whether at maturity, or by
acceleration or otherwise, and such default shall have continued
for a period of five days;
b) if the Obligor shall:
(i) admit in writing its inability to pay its debts generally
as they become due;
(ii) file a petition in bankruptcy or a petition to take
advantage of any insolvency act;
(iii) make an assignment for the benefit of creditors;
(iv) consent to the appointment of a receiver of the whole or
any substantial part of his property;
(v) on a petition in bankruptcy filed against him, be
adjudicated a bankrupt;
(vi) file a petition or answer seeking reorganization or
arrangement under the Federal bankruptcy laws or any other
applicable law or statute of the United States of America
or any State, district or territory thereof; or
c) if a court of competent jurisdiction shall enter an order,
judgment, or decree appointing, without the consent of the
Obligor, a receiver of the whole or any substantial part of
Obligor's property, and such order, judgment or decree shall not
be vacated or set aside or stayed within 90 days from the date of
entry thereof; and
d) if, under the provisions of any other law for the relief or aid
of debtors, any court of competent jurisdiction shall assume
custody or control of the whole or any substantial part of
Obligor's property and such custody or control shall not be
terminated or stayed within 90 days from the date of assumption
of such custody or control.
7. Remedies. In case any one or more of the Events of Default specified
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in Section 6 hereof shall have occurred and be continuing, the Holder
may proceed to protect and enforce its rights either by suit in equity
and/or by action at law, whether for the specific performance of any
covenant or agreement contained in this Note or in aid of the exercise
of any power granted in this Note, or the Holder may proceed to
enforce the payment of all sums due upon this Note or to enforce any
other legal or equitable right of the Holder.
8. Severability. In the event that one or more of the provisions of this
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Note shall for any reason be held invalid, illegal or unenforceable in
any respect, such invalidity, illegality or unenforceability shall not
affect any other provision of this Note, but this Note shall be
construed as if such invalid, illegal or unenforceable provision had
never been contained herein.
9. Governing Law. This Note and the rights and obligations of the
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Obligor and the Holder shall be governed by and construed in
accordance with the laws of the State of New Jersey.
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IN WITNESS WHEREOF, the undersigned has caused this Note to be executed and
delivered on the date first written above.
SENESCO, L.L.C.
By: /s/ Phillippe X. Xxxxxxxxxx
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Phillippe X. Xxxxxxxxxx,
Managing Member
EXHIBIT B
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See Drawdown schedule attached hereto.
