Exhibit 10.34
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MASTER LOAN AND SECURITY AGREEMENT
NO 7237 DATED JUNE 18, 1998
LENDER CUSTOMER:
OXFORD VENTURE LEASING, LLC Paradigm Genetics, Inc.
a Virginia limited liability a North Carolina corporation
corporation
Address: Address:
0000 Xxxxxxxxxx Xxxxx, xxxxx 0000 000 Xxxxxxxxx Xxxxx, xxxxxxxx 0
XxXxxx, Xxxxxxxx 00000 Research Xxxxxxxx Xxxx, XX 00000
In consideration of each Loan Agreement, Customer hereby agrees with Lender
that, whenever Customer shall be at any time or times directly or contingently
indebted, liable or obligated to Lender in any manner whatsoever, Lender shall
have the following rights:
1. DEFINITIONS. To the extent not otherwise specifically defined in this
Agreement, unless the context otherwise requires, all other terms contained in
this Agreement shall have the meanings assigned or referred to them in the UCC.
The following terms shall have the following meanings:
"Acceptance Date" with respect to each item of Equipment shall have the
meaning assigned to such term in Section 3 of this Agreement.
"Affiliate" shall mean, with respect to any person, firm or entity, any
other person, firm or entity controlling, controlled by, or under common control
with such person, firm or entity; for the purposes hereof "control" shall mean
the possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of any such person, firm or entity,
whether through the legal or beneficial ownership of voting securities, by
contract or otherwise.
"Agreement" shall mean this Master Loan and Security Agreement, as amended
or modified from time to time.
"Attorneys' Fees and Expenses" shall mean reasonable attorneys' fees and
legal costs and expenses (including, without limitation, those fees, costs and
expenses incurred in connection with bankruptcy proceedings, including Relief
from Stay Motions, Cash Collateral Motions and disputes concerning any proposed
disclosure statement and/or bankruptcy plan), provided that legal fees shall be
based upon standard hourly rates and not the presumed rate set forth in N.C.
Gen. Stat. 6-12.2.
"Collateral" shall mean all Equipment and any licenses, trademarks or other
tangible or intangible property ancillary to the Equipment and all products,
proceeds, rents and profits therefrom or thereof including proceeds in the form
of goods, accounts, chattel paper, documents, instruments and insurance
proceeds.
"Default" shall have the meaning ascribed to such term in Section 8 of this
Agreement.
"Equipment" shall mean one or more items or units of personal property now
owned or hereafter acquired by Customer, as described in each Equipment
Schedule, wherever the same may be located, including all present and future
additions, attachments, accessions and accessories thereto and all replacements,
substitutions and a right to use license for any software related to any of the
foregoing and proceeds thereof including all proceeds of insurance thereon.
"Equipment Schedule" shall mean each Equipment Schedule, which incorporates
by reference the terms and conditions of this Agreement and describes one or
more items of Equipment and specific terms and conditions with respect thereto.
"Event of Default" shall have the meaning ascribed to such term in Section
8 of this Agreement.
"Loan Agreement" shall mean the applicable Equipment Schedule incorporating
the terms and conditions of this Agreement, including all exhibits, addenda,
schedules, certificates, riders and all other documents and instruments executed
and delivered in connection with the applicable Equipment Schedule or this
Master Loan and Security Agreement.
"Note" shall mean a promissory note of Customer in favor of Lender
evidencing Customer's obligations to Lender with respect to a Loan Agreement.
"Obligations" shall mean all liabilities, absolute or contingent, joint,
several or independent, of Customer or any Affiliate of Customer now or
hereafter existing, due or to become due to, or held or to be held by, Lender
for its own account or as agent for another or others, whether created directly
or acquired by assignment or otherwise and howsoever evidenced, including,
without limitation, the Loan Agreement, and all interest, taxes, fees, charges,
expenses and Attorneys' Fees and Expenses chargeable to Customer or incurred by
Lender under the Loan Agreement, or any other document or instrument delivered
in connection herewith.
"Person" shall mean any individual, partnership, joint venture, firm,
corporation, association, trust, or other enterprise or any government or
political subdivision or any agency, department or instrumentality thereof.
"Security Deposit" with respect to each item of Equipment shall have the
meaning assigned to such term in the Equipment Schedule applicable to such item
of Equipment.
"UCC" shall mean the Uniform Commercial Code as enacted in the State of
Connecticut.
2. INDEPENDENT LOAN; CROSS-COLLATERALLZATION; SECURITY INTEREST. Each
Equipment Schedule shall constitute a separate, distinct and independent Loan
Agreement and contractual obligation of Customer. As security for the due and
punctual payment of any and all of the present and future Obligations of
Customer to Lender, Customer hereby (i) grants to Lender with respect to each
Loan Agreement and for the full amount of all Obligations, a security interest
in all of the Collateral and all collateral securing any other lease
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or security agreement between Customer and Lender, whether now in existence or
hereafter entered into and (ii) assigns to Lender all of its rights, title and
interest in surplus money to which Customer may be entitled upon the sale of all
such Collateral. The extent to which Lender's security interest in any item of
Collateral shall be entitled to purchase money priority shall be determined by
reference to the unpaid principal balance of any Note evidencing the financing
of the purchase price of such item of Equipment. Lender shall release its
security interest in the Equipment upon Customer's payment in full of all
principal, interest and other amounts under the Note and Equipment Schedule
evidencing the financing of the purchase price of the Equipment.
3. ACCEPTANCE OF EQUIPMENT. The Equipment is to be delivered and installed
at the location specified or referred to in the applicable Equipment Schedule.
The Equipment shall be deemed to have been accepted by Customer for all purposes
under this Agreement upon Customer's execution of an Equipment Schedule (the
"Acceptance Date"). Customer shall not be liable or responsible for any failure
or delay in the delivery of the Equipment to Customer for whatever reason.
4. TERM; PRINCIPAL AND INTEREST; NO PREPAYMENT; LATE CHARGES. The term for
any Loan Agreement shall be as specified in the applicable Equipment Schedule.
No Loan Agreement is prepayable by Customer, in whole or in part, without the
express written consent of Lender in its sole discretion. Principal and interest
payments shall be in the amounts and shall be due and payable as set forth in
the applicable Equipment Schedule. If any payment of principal or interest or
other amount payable hereunder shall not be paid within 5 days of the date when
due, Customer shall pay as an administrative and late charge an amount equal to
5% of the amount of any such overdue payment. In addition, Customer shall pay
overdue interest on any delinquent payment or other amounts due under any Loan
Agreement (by reason of acceleration or otherwise) from the due date until paid
at the rate of one and one-half percent (1.5%) per month or the maximum amount
permitted by applicable law, whichever is lower. All payments to be made to
Lender shall be made to Lender in immediately available funds at the address
shown above, or at such other place as Lender shall specify in writing.
5. REPRESENTATIONS, WARRANTIES AND COVENANTS. Customer hereby represents
and warrants to and covenants with Lender (provided that if Customer is an
individual or sole proprietorship, the representations, warranties and covenants
relating to corporate status shall not apply) that, as of the date hereof and
for so long as any Obligations shall remain outstanding:
(a) Customer is duly organized and is existing in good standing under the
laws of its jurisdiction of organization and is duly qualified and in good
standing in those jurisdictions where the conduct of its business or the
ownership of its properties requires qualification;
(b) Customer has the power and authority to own the Collateral, to enter
into and perform this Agreement and any other document or instrument delivered
in connection herewith and to incur the Obligations;
(c) Customer's chief executive office is located at the address set forth
above;
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(d) Customer does not utilize, and has not in the last five years utilized,
any trade names in the conduct of its business except as set forth on Schedule 1
hereto;
(e) Customer has not changed its name, been the surviving entity in a
merger, acquired any business or changed the location of its chief executive
office within the previous five years. except as set forth on Schedule 2 hereto;
(f) Neither the execution, delivery or performance by Customer of the Loan
Agreement nor compliance by it with the terms and provisions hereof, nor the
consummation of the transactions contemplated herein, (i) will contravene any
applicable provision of any law, statute, rule or regulation, or any order,
writ, injunction or decree of any court or governmental instrumentality, (ii)
will conflict or be inconsistent with or result in any breach of any of the
terms, covenants, conditions or provisions of, or constitute a default under, or
result in any lien upon any property, pursuant to the terms of any indenture,
mortgage, deed of trust, loan agreement or any other material agreement or
instrument to which Customer is a party or by which it or any of its property or
assets are bound or to which it may be subject or (iii) will violate any
provision of its Certificate of Incorporation or By-Laws, or other governance
documents;
(g) The Loan Agreement, the Note and any document or instrument delivered
in connection herewith and the transactions contemplated hereby or thereby are
duly authorized, executed and delivered, and the Loan Agreement, the Note and
such other documents and instruments constitute valid and legally binding
obligations of Customer and are enforceable against Customer in accordance with
their respective terms; subject to the effects of bankruptcy, insolvency,
reorganization, receivership, moratorium and other similar laws now or hereafter
in effect relating to or affecting creditor's rights or remedies generally.
(h) No order, consent, approval, license, authorization, or validation of,
or filing, recording or registration with, or exemption by any governmental or
public body or authority, or any subdivision thereof is required to authorize or
required in connection with (i) the grant by Customer of the security interest
in connection with the Loan Agreement, (ii) the execution, delivery and
performance of the Loan Agreement, (iii) the legality, validity, binding effect
or enforceability of the Loan Agreement or (iv) the perfection or maintenance of
the aforementioned lien and security interest;
(i) Customer has filed all federal, state and local tax returns and other
reports it is required to file, has paid or made adequate provision for payment
of all such taxes, assessments and other governmental charges, and shall pay or
deposit promptly when due all sales, use, excise, personal property, income,
withholding, corporate, franchise and other taxes, assessments and governmental
charges upon or relating to the manufacture, purchase, ownership, maintenance,
modification, delivery, installation, possession, condition, use, acceptance,
rejection, operation or return of the Equipment and, upon request by Lender,
Customer will submit to Lender proof satisfactory to Lender that such payments
and/or deposits have been made;
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(j) There are no pending or threatened actions or proceedings before any
court or administrative agency, an unfavorable resolution of which could have a
material adverse effect on Customer's financial condition or operations;
(k) No representation, warranty or statement by Customer contained in the
Loan Agreement or in any certificate or other document furnished or to be
furnished by Customer pursuant to the Loan Agreement contains or at the time of
delivery shall contain any untrue statement of material fact, or omits, or shall
omit at the time of delivery, to state a material fact necessary to make it not
misleading;
(1) All financial statements delivered and to be delivered by Customer to
Lender in connection with the execution and delivery of the Loan Agreement are
true and correct in all material respects and have been prepared in accordance
with generally accepted accounting principles, and at all times since the date
of the most recent financial statements, there has been no material change in
Customer's financial affairs or business operations. Customer shall furnish
Lender: (i) within 90 days after the last day of each fiscal year of Customer, a
financial statement including a balance sheet, income statement, statement of
retained earnings and statement of cash flows, each prepared in accordance with
generally accepted accounting principles consistently applied satisfactory to
Lender, with a report signed by an independent certified public accountant to
follow by no more than 60 days; (ii) upon the request of Lender, within 45 days
after the close of each quarter of each fiscal year of Customer, financial
statements similar to those described in the immediately preceding clause,
prepared by Customer and certified by the chief financial officer of Customer,
(iii) promptly upon the request of Lender, such tax returns or financial
statements regarding any guarantor of the Obligations or any Affiliate of
Customer as Lender may reasonably request from time to time; (iv) promptly upon
request of Lender, in form satisfactory to Lender, such other and additional
information as Lender may reasonably request from time to time, and; (v)
promptly inform Lender of any Defaults (defined below) or any events or changes
in the financial condition of Customer occurring since the date of the last
financial statements of Customer delivered to Lender which, individually or
cumulatively, when viewed in light of prior financial statements may result in a
material adverse change in the financial condition of Customer;
(m) Customer shall permit Lender, through its authorized attorneys,
accountants and representatives, to inspect and examine the Equipment and the
books, accounts, records, ledgers and assets of every kind and description of
Customer with respect thereto at all reasonable times; provided, however, that
the failure of Lender to inspect the Equipment or to inform Customer of any
noncompliance shall not relieve Customer of any of its Obligations hereunder;
(n) Customer is the owner of the Equipment free and clear of all rights,
title, security interests, encumbrances or liens of any other party, will defend
the Equipment to the extent necessary to protect the Collateral against all
claims and demands of all persons at any time claiming any interest therein and
shall deliver to Lender any and all evidence of ownership of, and certificates
of title to, any and all of the Equipment;
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(o) The Equipment is personal property and not a fixture under the law of
the jurisdiction in which the Equipment is located even though the Equipment may
hereafter become attached or affixed to real property;
(p) Each site where Equipment is located, if not owned by Customer, is
leased by Customer pursuant to a valid lease or rental agreement which permits
the possession, use and operation of the Equipment at such location;
(q) Customer shall provide Lender with disclaimers and waivers from
landlords, mortgagees and other persons holding any interest or claim in and to
any premises where Equipment is located, acceptable in all respects to Lender,
which may be necessary or advisable in the sole discretion of Lender to confirm
that the first priority security interest and rights of Lender in the Equipment
are and will remain valid and superior against all other parties;
(r) The Equipment is in the possession of Customer at the location(s)
specified in the applicable Equipment Schedule, and shall not be removed from
such location without the prior written consent of Lender, which consent shall
in any event be conditioned upon Customer having completed all notifications,
filings, recordings, and other actions in such new location as Lender may
require to protect and perfect Lender's interests in the Collateral;
(s) Customer shall not, without the prior written consent of Lender, sell,
offer to sell, lease, rent, hire or in any other manner dispose, transfer or
surrender use and possession of any Equipment;
(t) Customer will not, directly or indirectly, create, incur or permit to
exist any lien, encumbrance, mortgage, pledge, attachment or security interest
on or with respect to the Equipment other than in connection with the execution
and delivery of the Loan Agreement;
(u) Customer shall permit each item of Equipment to be used only within the
continental United States by qualified personnel solely for business purposes
and the purpose for which it was designed and, at its sole expense, shall
service, repair, overhaul and maintain each item of Equipment in the same
condition as when received, ordinary wear and tear excepted, in good operating
order, consistent with prudent industry practice (but, in no event less than the
same extent to which Customer maintains other similar equipment in the prudent
management of its assets and properties) and in compliance with all applicable
laws, ordinances, regulations. and conditions of all insurance policies required
to be maintained by Customer under the Loan Agreement and all manuals, orders,
recommendations, instructions and other written requirements as to the repair
and maintenance of such item of Equipment issued at any time by the vendor
and/or manufacturer thereof;
(v) If any item of Equipment does not comply with the requirements of the
Loan Agreement, Customer shall bring such Equipment into compliance with the
provisions hereof; and Customer shall not use any Equipment, nor allow the same
to be used, for any unlawful purpose;
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(w) Customer acknowledges that Lender has not selected, manufactured or
supplied the Equipment to Customer and has acquired any Equipment subject hereto
solely in connection with this Loan Agreement and Customer has received and
approved the terms of any purchase order or agreement with respect to the
Equipment; and
(x) Customer has all permits, licenses and other authorizations which are
required with respect to its business under Environmental Laws (as defined
below) and is in material compliance with all terms and conditions of such
permits, licenses and other authorizations, including all limitations,
restrictions, standards, prohibitions, requirements, obligations, schedules and
timetables. The Customer is not presently in material violation of any
Environmental Laws. "Environmental Laws" shall mean any Federal, state or local
law relating to releases or threatened releases of Hazardous Substances; the
manufacture, handling, transport, use, treatment, storage or disposal of
Hazardous Substances or materials containing Hazardous Substances; or otherwise
relating to pollution of the environment or the protection of human health.
"Hazardous Substances" shall mean substances or materials which contain
substances defined in or regulated as toxic or hazardous materials, chemicals,
substances, waste or pollutants under any present or future Federal statutes and
their state counterparts, as well as any implementing regulations as amended
from time to time and as interpreted by administering agencies.
6. DISCLAIMER OF WARRANTIES; LIMITATION OF REMEDY; LIMITATION OF LIABILITY.
Customer has selected both the Equipment and the supplier (identified in the
Equipment Schedule, herein ("Supplier") from whom Customer agrees to purchase
the Equipment. CUSTOMER ACKNOWLEDGES THAT LENDER HAS NO SPECIAL FAMILIARITY OR
EXPERTISE WITH RESPECT TO THE EQUIPMENT. CUSTOMER AGREES THAT THE EQUIPMENT IS
"AS IS" AND IS OF A SIZE, DESIGN AND CAPACITY SELECTED BY CUSTOMER AND THAT
CUSTOMER IS SATISFIED THAT THE SAME IS SUITABLE FOR CUSTOMER'S PURPOSES, AND
THAT EXCEPT AS MAY OTHERWISE BE SPECIFICALLY PROVIDED HEREIN OR IN THE EQUIPMENT
SCHEDULE, LENDER HAS MADE NO REPRESENTATION OR WARRANTY AS TO ANY MATTER
WHATSOEVER. LENDER DISCLAIMS, AND CUSTOMER HEREBY EXPRESSLY WAIVES AS TO LENDER,
ALL WARRANTIES WITH RESPECT TO THE EQUIPMENT INCLUDING BUT NOT LIMITED TO ALL
EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE, QUALITY, CAPACITY, OR WORKMANSHIP, ALL EXPRESS OR IMPLIED WARRANTIES
AGAINST PATENT INFRINGEMENTS OR DEFECTS, WHETHER HIDDEN OR APPARENT, AND ALL
EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO COMPLIANCE OF THE EQUIPMENT WITH
THE REQUIREMENTS OF ANY LAW, REGULATION, SPECIFICATION OR CONTRACT RELATIVE
THERETO. IN NO EVENT SHALL LENDER BE LIABLE (INCLUDING WITHOUT LIMITATION, UNDER
ANY THEORY IN TORTS) FOR ANY LOSS OF USE, REVENUE, ANTICIPATED PROFITS OR
SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN
CONNECTION WITH THE LOAN OR THE USE, PERFORMANCE OR MAINTENANCE OF THE
EQUIPMENT. If the Equipment is not properly installed, does not operate as
represented or warranted by the Supplier, manufacturer and/or service company or
is unsatisfactory for any reason, Customer shall make any claim on
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account thereof solely against the Supplier, manufacturer and/or service company
and shall, nevertheless, pay Lender all amounts payable under the Loan Agreement
and any such claims shall not act as a defense, counterclaim, deduction, setoff
or otherwise limit Customer's Obligations under the Loan Agreement.
7. RISK OF LOSS AND DAMAGE; INSURANCE. Customer assumes all risk of loss,
damage or destruction to the Equipment from whatever cause and for whatever
reason. If all or a portion of an item of Equipment shall become lost, stolen,
destroyed, damaged beyond repair or rendered permanently unfit for use for any
reason, or in the event of any condemnation, confiscation, theft or seizure or
requisition of title to or use of such item of Equipment, Customer shall
promptly pay to Lender an amount equal to the outstanding principal balance of
and accrued and unpaid interest on any Note with respect to such Equipment, less
the net amount of the recovery, if any, received by Lender from insurance on the
Equipment. For so long as any Obligations shall remain outstanding, Customer
shall procure and maintain insurance in such amounts and with such coverages,
and upon such terms and with such companies, as Customer may determine in its
reasonable discretion consistent with industry standards at Customer's expense;
provided, however, that in no event shall such insurance be less than the
following coverages and amounts: (a) Worker's Compensation and Employer's
Liability Insurance, in the full statutory amounts provided by law (b)
Comprehensive General Liability Insurance including products completed
operations and contractual liability coverage, with minimum limits on a per
occurrence basis, as reasonably required by Lender, and Combined Single Limit
Bodily Injury and Property Damage on an aggregate basis, as reasonably required
by Lender or in either case, as otherwise specified in any Equipment Schedule
hereto; and (c) All Risk Physical Damage Insurance, including earthquake and
flood, on each item of Equipment, in an amount not less than the greater of (i)
the outstanding principal balance owing under any Note with respect to such
Equipment; or (ii) its fill replacement value. Customer shall cause Lender to be
included as an additional insured on each such Comprehensive General Liability
Insurance policy. On each such All Risk Physical Damage Insurance policy Lender
shall be named as loss payee. Such policies shall be endorsed to provide that
the coverage afforded to Lender shall not be rescinded, impaired or invalidated
by any act or neglect of Customer. Customer agrees to waive Customer's rights
and its insurance carrier's rights of subrogation against Lender for any and all
loss or damage. In addition to the foregoing minimum insurance coverage,
Customer shall procure and maintain such other insurance coverage as Lender
reasonably may require. All policies shall be endorsed or contain a clause
requiring the insurer to furnish Lender with at least 30 days prior written
notice of any material change, cancellation or non-renewal of coverage. Upon
execution of this Agreement, and thereafter, 30 days prior to the expiration of
each insurance policy required hereunder, Customer shall furnish Lender with a
certificate of insurance or other evidence satisfactory to Lender that the
insurance coverages required under such policy are and will continue in effect,
provided, however, that Lender shall be under no duty either to ascertain the
existence of or to examine such insurance coverage or to advise Customer in the
event such insurance coverage should not comply with the requirements hereof. If
Customer shall at any time or times hereafter fail to obtain and/or maintain any
of the policies of insurance required herein, or fail to pay any premium in
whole or in part relating to any such policies, Lender may, but shall not be
obligated to, obtain and/or cause to be maintained insurance coverage with
respect to the Collateral, including, at Lender's option, the coverage provided
by all or any of the policies of Customer and pay all or any part of the premium
therefor, without waiving any Event
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of Default by Customer, and any sums so disbursed by Lender shall be additional
Obligations of Customer to Lender payable on demand. Lender shall have the right
to settle and compromise any and all claims under any of the All Risk Physical
Damage policies required to be maintained by Customer hereunder and Customer
hereby appoints Lender as its attorney-in- fact, with power to demand, receive
and receipt for all monies payable thereunder, to execute in the name of
Customer or Lender or both any proof of loss, notice, draft or other instruments
in connection with such policies or any loss thereunder and generally to do and
perform any and all acts as Customer, but for this appointment, might or could
perform.
8. EVENTS OF DEFAULT. An "Event of Default" under this Agreement shall be
deemed to have occurred upon the occurrence or existence of any one or more of
the following events or conditions (each a "Default") and after the giving of
any required notice or the passage of any required period of time (or both)
specified below with respect to such Default (a) Customer shall fail to make any
payment due under any Note or as required under the Loan Agreement within 10
days of its due date; or (b) Customer shall fail to obtain or maintain any of
the insurance required under the Loan Agreement; or (c) Customer shall remove,
sell, transfer, encumber, or part with possession of any Equipment; (d) Customer
shall fail to perform or observe any other covenant, condition or agreement
under the Loan Agreement, and such failure shall continue for 30 days after
notice thereof to Customer, or (e) Customer or any of its Affiliates shall
default in the payment or performance of any Obligation owing to Lender, and
such default shall continue for 20 days after notice thereof to Customer, or (f)
any representation or warranty made by Customer herein or in any certificate,
agreement, statement or document heretofore or hereafter furnished Lender,
including without limitation any financial information disclosed to Lender,
shall prove to be false or incorrect in any material respect; or (g) death or
judicial declaration of incompetence of Customer, if an individual; or (h) the
commencement of any bankruptcy, insolvency, arrangement, reorganization,
receivership, liquidation or other similar proceeding by or against Customer or
any of its properties or businesses, or the appointment of a trustee, receiver,
liquidator or custodian for Customer or any of its properties or businesses, or
if Customer suffers the entry of an order for relief under Title 11 of the
United States Code: or (i) the making by Customer of a general assignment or
deed of trust for the benefit of creditors; or (j) Customer shall default in any
payment or other material obligation to any other lender and such lender has
accelerated the debt in accordance with its terms; or (k) Customer shall merge
with or consolidate into any other entity or sell all or substantially all of
its assets or in any manner terminate its existence; or (l) if Customer is a
privately held corporation, more than 50% of Customer's voting capital stock, or
effective control of Customer's voting capital stock, issued and outstanding
from time to time, is not retained by the holders of such stock on the date the
Loan Agreement is executed or (m) if Customer is a publicly held corporation,
there shall be a change in the ownership of Customer's stock such that Customer
is no longer subject to the reporting requirements of the Securities Exchange
Act of 1934 or no longer has a class of equity securities registered under
Section 12 of the Securities Act of 1933; or (n) Lender shall determine that
there has been a material adverse change in the financial condition or business
operations of Customer since the date of the execution of the Loan Agreement, or
that Customer's ability to perform its obligations is materially impaired, or
(o) if Customer leases the premises where any Equipment is located, a breach by
Customer of any such lease and the commencement of an action by the landlord to
evict Customer or to repossess the premises; or (p) any event or condition set
forth in subsections (e) through (o) of this Section 8
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shall occur with respect to any guarantor or other person liable or responsible,
in whole or in part, for payment or performance of any Obligations; or (q) any
event or condition set forth in subsections (h) through (j) shall occur with
respect to any Affiliate of Customer. Customer shall promptly notify Lender of
the occurrence of any Event of Default or the occurrence or existence of any
event or condition which, upon the giving of notice or lapse of time, or both,
would constitute an Event of Default.
9. RIGHTS AND REMEDIES; ACCELERATION. (a) Upon the occurrence of an Event
of Default, Lender shall have all of the rights and remedies enumerated herein
(all of which are cumulative and not exclusive of any other right or remedy
available to Lender) and Lender may, at its sole option and discretion, exercise
one or more of the following remedies with respect to any or all of the
Collateral: (i) by written notice to Customer, terminate any or all Loan
Agreements as such notice shall specify, and, with respect to such terminated
Loan Agreements, declare immediately due and payable and recover from Customer,
as liquidated damages for loss of Lender's bargain and not as a penalty, an
amount equal to the aggregate of all unpaid periodic installment payments and
other sums due under Loan Agreements to the date of default plus the charges set
forth in Section 4 hereof, if any, plus, to the extent not in duplication
thereof, an amount equal to the outstanding principal balances of and accrued
and unpaid interest on any of the Notes with respect to the Loan Agreements,
(ii) Lender may declare, at its Option, all or any part of the Obligations
immediately due and payable, without demand, notice of intention to accelerate,
notice of acceleration, notice of nonpayment, presentment, protest, notice of
dishonor, or any other notice whatsoever, all of which are hereby waived by
Customer and any endorser, guarantor, surety or other party liable in any
capacity for any of the Obligations; (iii) cause Customer to promptly ship, with
insurance and freight prepaid by Customer, any or all Equipment to such location
as Lender may designate, or Lender, at its option, may enter upon the premises
where the Equipment is located and take immediate possession of and remove the
same by summary proceedings or otherwise, all without liability to Lender for or
by reason of damage to property or such entry or taking possession except for
Lender's gross negligence or willful misconduct; (iv) sell any or all Collateral
at public or private sale or otherwise dispose of, hold, use, operate, lease to
others or keep idle the Equipment, all as Lender in its sole discretion may
determine and all free and clear of any rights of Customer other than Lender's
obligations to act in a commercially reasonable manner under applicable law, (v)
remedy such default, including making repairs or modifications to the Equipment,
for the account and expense of Customer, and Customer agrees to reimburse Lender
for all of Lender's costs and expenses; (vi) apply any Security Deposit or other
cash collateral or sale or remarketing proceeds of the Equipment at any time to
reduce any amounts due to Lender, or (vii) exercise any other right or remedy
which may be available to Lender under applicable law, or proceed by appropriate
court action to enforce the tern's hereof or to recover damages for the breach
hereof, including Attorneys' Fees and Expenses. Any notice required to be given
by Lender of a sale or other disposition or other intended action which is made
in accordance with the terms of the Loan Agreement at least ten (10) days prior
to such proposed action, shall constitute fair and reasonable notice to Customer
of any such action. Lender shall be liable to Customer only for its gross
negligence or willful misconduct or for its failure to comply with any
applicable law imposing duties upon Lender; Lender's liability for any such
failure shall be limited to the actual loss suffered by Customer directly
resulting from such failure; and in no event shall Lender have any liability to
Customer for incidental, consequential, punitive or
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exemplary damages. No remedy referred to in this Section 9 shall be exclusive,
but each shall be cumulative and in addition to any other remedy referred to
above or otherwise available to Lender at law or in equity.
(b) The exercise or pursuit by Lender of any one or more of such remedies
shall not preclude the simultaneous or later exercise or pursuit by Lender of
any or all such other remedies, and all remedies hereunder shall survive
termination of the Loan Agreement. In the event Lender takes possession and
disposes of the Collateral, the proceeds of any such disposition shall be
applied in the following order: (1) to all of Lender's costs. charges and
expenses incurred in taking, removing, holding, repairing and selling or leasing
the Equipment; (2) to pay the Lender the remaining amount of any Obligations
owed to Lender and (3) the balance, if any, to Customer. A termination shall
occur only upon written notice by Lender and only with respect to such Equipment
as Lender shall specify in such notice. Termination under this Section 9 shall
not affect Customer's duty to perform Customer's Obligations under the Loan
Agreement in full. Customer agrees to reimburse Lender on demand for any and all
costs and expenses incurred by Lender in enforcing its rights and remedies
hereunder following the occurrence of an Event of Default, including, without
limitation, Attorneys' Fees and Expenses, and the costs of repossession,
storage, insuring, reletting, selling and disposing of any and all Equipment.
10. INDEMNITY. (a) Customer agrees to indemnify, reimburse and hold Lender
and its successors, Affiliates, assigns, officers, directors, employees, agents
and servants (hereinafter in this Section 10 referred to individually as
"Indemnitee", and collectively as "Indemnitees") harmless from any and all
liabilities, obligations, damages, injuries, penalties, claims, demands,
actions, suits, judgments and any and all costs, expenses or disbursements,
including Attorneys' Fees and Expenses of whatsoever kind and nature imposed on,
asserted against or incurred by any of the Indemnitees in any way relating to or
arising out of the Loan Agreement or any other document executed in connection
herewith or therewith or in any other way connected with the administration of
the transactions contemplated hereby or thereby or the enforcement of any of the
terms of, or the preservation of any rights under any thereof, or in any way
relating to or arising out of the manufacture, ownership, ordering, purchase,
delivery, control, acceptance, lease, financing, possession, operation,
condition, sale, return or other disposition, or use of the Equipment
(including, without limitation, latent or other defects, whether or not
discoverable), the violation by Customer of the laws of any country, state or
other governmental body or unit, any tort of Customer (including, without
limitation, claims arising or imposed under the doctrine of strict liability, or
for or on account of injury to or the death of any Person (including any
Indemnitee), or property damage), or contract claim related to the Equipment, or
any claim based on patent, trademark or copyright infringement related to the
Equipment or any obligation or liability to the manufacturer or supplier of the
Equipment under any Supply Contracts (referenced in the Equipment Schedule),
including purchase orders issued by Customer or Lender or assigned to Lender;
provided, however, that no Indemnitee shall be indemnified pursuant to this
Section 10 for losses, damages or liabilities to the extent caused solely by the
gross negligence or willful misconduct of such Indemnitee. Customer agrees that
upon written notice by any Indemnitee of the assertion of such a liability,
obligation, damage, injury, penalty, claim, demand, action, suit or judgment,
Customer shall assume full responsibility for the
11
defense thereof. Each Indemnitee agrees to use its best efforts to promptly
notify Customer of any such assertion of which such Indemnitee has knowledge.
(b) Without limiting the application of Section 10(a) hereof; Customer
agrees to pay, or reimburse Lender for any and all reasonable fees, costs and
expenses (including Attorneys' Fees and Expenses) of whatever kind or nature
incurred in connection with the creation, preservation or protection of Lender's
liens on, and security interest in, the Collateral, including, without
limitation, all fees and taxes in connection with the recording or filing of
instruments and documents in public offices, payment or discharge of any taxes
or liens upon or in respect of the Collateral, premiums for insurance with
respect to the Collateral and all other fees, costs and expenses reasonably
incurred in connection with protecting, maintaining or preserving the Collateral
and Lender's interest therein, whether through judicial proceedings or
otherwise, or in defending or prosecuting any actions, suits or proceedings
arising out of or relating to the Collateral.
(c) Customer shall, at its sole cost and expense, protect, defend,
indemnify, release and hold harmless the Indemnitees from and against any and
all Losses imposed upon or incurred by or asserted against any Indemnitees, and
arising out of or in any way relating to any one or more of the following,
unless caused solely by the gross negligence or willful misconduct of any
Indemnitee: (i) any presence of any Hazardous Substances in, on, above or under
Customer's leased or owned real property (the "Property"); (ii) any past,
present or threatened Release of Hazardous Substances in, on, above, under or
from the Property or (iii) any past or present violation of any Environmental
Laws by Customer. The term "Release" of any Hazardous Substance includes, but is
not limited to, any release, deposit, discharge, emission, leaking, spilling,
seeping, migrating, injecting, pumping, pouring, emptying, escaping, dumping,
disposing or other movement of Hazardous Substances. The term "Losses" includes
any and all claims, suits, liabilities (including, without limitation, strict
liabilities), actions, proceedings, obligations, debts, damages, losses, costs,
expenses, diminutions in value, fines, penalties, charges, fees, expenses,
judgments, awards, amounts paid in settlement, costs of remediating a Hazardous
Substance (whether or not performed voluntarily), engineers' fees, environmental
consultants' fees, and costs of investigation (including, but not limited to
sampling, testing and analysis of soil, water, air, building materials and other
materials and substances whether solid, liquid or gas) or punitive damages, of
whatever kind or nature (including, but not limited to Attorneys' Fees and
Expenses).
(d) Without limiting the application of Section 10(a) or (b), or (c)
hereof, Customer agrees to pay, indemnify and hold each Indemnitee harmless from
and against any loss, costs, damages and expenses (including Attorneys' Fees and
Expenses) which such Indemnitee may suffer, expend or incur in consequence of or
growing out of any misrepresentation or omission of a material fact by Customer
in the Loan Agreement or in any writing contemplated by or made or delivered
pursuant to or in connection with the Loan Agreement.
(e) If and to the extent that the obligations of Customer under this
Section 10 are unenforceable for any reason, Customer hereby agrees to make the
maximum contribution to the payment and satisfaction of such obligations which
is permissible under applicable law.
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11. MAINTENANCE; INSPECTION. During the term of the Loan Agreement,
Customer shall, unless Lender shall otherwise consent in writing: (a) maintain
conspicuously on any Equipment such labels, plates, decals or other markings as
Lender may reasonably require, stating that Lender has a security interest in
such Equipment; (b) furnish to Lender such information concerning the condition,
location, use and operation of the Equipment as Lender may request; (c) permit
any person designated by Lender to visit and inspect any Equipment and any
records maintained in connection therewith, provided, however, that the failure
of Lender to inspect the Equipment or to inform Customer of any noncompliance
shall not relieve Customer of any of its obligations hereunder, and (d) make no
additions, alterations, modifications or improvements (collectively,
"Improvements") to any item of Equipment that are not readily removable without
causing material damage to such item of Equipment or which will cause the value,
utility or useful life of such item of Equipment to materially decline. If any
such Improvement is made and cannot be removed without causing material damage
or decline in value, utility or useful life (a "Non-Severable Improvement"),
then Customer warrants that such Non-Severable Improvement shall immediately
become subject to Lender's security interest upon being installed and shall be
free and clear of all liens and encumbrances and shall become Equipment subject
to all of the terms and conditions of the Loan Agreement.
12. FURTHER ASSURANCES. Customer shall promptly execute and deliver to
Lender such further documents and take such further action as Lender reasonably
may require in order to more effectively carry out the intent and purpose of the
Loan Agreement. Customer shall execute and deliver to Lender upon Lender's
request any and all schedules, forms and other reports and information as Lender
may reasonably deem necessary or appropriate to respond to requirements or
regulations imposed by any governmental authorities or to comply with the
provisions of the law of any jurisdiction in which Customer may then be
conducting business or in which any of the Equipment may be located. Customer
shall execute and deliver to Lender upon Lender's request such further and
additional documents, instruments and assurances as Lender deems necessary to
acknowledge and confirm, for the benefit of Lender or any assignee or transferee
of any of Lender's rights, title and interests hereunder in accordance with
Section 13 hereof (an "Assignee"), all of the terms and conditions of all or any
part of the Loan Agreement and Lender's or Assignee's rights with respect
thereto, and Customer's compliance with all of the terms and provisions thereof.
13. ASSIGNMENT. The provisions of the Loan Agreement shall be binding upon
and shall inure to the benefit of the heirs, administrators, successors and
assigns of Lender and Customer, provided, however, Customer may not assign any
of its rights, transfer any interest in the Equipment or delegate any of its
obligations under the Loan Agreement without the prior written consent of Lender
in its sole discretion. Lender may, from time to time, absolutely or as
security, without notice to Customer, sell, assign, transfer, participate,
pledge or otherwise dispose of all or any part of a Loan Agreement, the
Obligations and/or the Collateral therefor, subject to the rights of Customer
under the Loan Agreement for the use and possession of the Equipment. In such
event, each and every immediate and successive Assignee shall have the right to
enforce the Loan Agreement with respect to those Obligations and/or Collateral
transferred to the Assignee, by legal action or otherwise, for its own benefit
as fully as if such Assignee were herein by name specifically given such rights.
Customer agrees that the rights of any such Assignee hereunder or with respect
to the related Obligations, shall not be subject to
13
any defense, set off or counterclaim that Customer may assert or claim against
Lender, and that any such Assignee shall have all of Lender's rights hereunder
but none of Lender's obligations. Lender shall have an unimpaired right to
enforce the Loan Agreement for its benefit with respect to that portion of any
Loan Agreement, Obligations and/or Collateral that Lender has not sold,
assigned, pledged or otherwise transferred.
14. GOVERNING LAW; MEDIATION OF THE LOAN AGREEMENT. THE LOAN AGREEMENT 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. CUSTOMER 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 UNDER THE LOAN AGREEMENT, AND EXPRESSLY WAIVES ANY OBJECTIONS THAT
IT MAY HAVE TO THE VENUE OF SUCH COURTS. CUSTOMER HEREBY EXPRESSLY WAIVES ANY
RIGHT TO TRIAL BY JURY IN ANY ACTION BROUGHT ON OR WITH RESPECT TO THE LOAN
AGREEMENT. Any action by Customer against Lender for any cause of action under
the Loan Agreement shall be brought within one year after any such cause of
action first arises. If requested by Lender, Customer agrees that prior to the
commencement of any litigation regarding the terms and conditions of the Loan
Agreement, the parties hereto shall subject themselves to non-binding mediation
with a qualified mediator mutually satisfactory to both parties.
15. NOTICES. Any demand or notice required or permitted to be given
hereunder shall be deemed effective (a) when deposited in the United States
mail, and sent by certified mail, return receipt requested, postage prepaid,
addressed to Lender or to Customer at the addresses set forth herein, or to such
other address as may be hereafter provided by the party to be notified by
written notice complying with the provisions hereof or (b) when transmitted to
Lender or Customer by facsimile at the respective numbers provided for such
purpose; provided, that such facsimile notice is promptly followed by notice
given in accordance with the immediately preceding subsection (a).
16. SECURITY DEPOSIT. Lender may, at its option, apply the Security
Deposit, if any is indicated in an Equipment Schedule, to cure any default of
Customer, whereupon Customer shall promptly restore such Security Deposit to its
original amount. Lender shall return to Customer any unapplied Security Deposit,
without interest, upon full payment and performance of Customer's Obligations
under the Loan Agreement.
17. MISCELLANEOUS; GENERAL PROVISIONS. The Loan Agreement will not be
binding on Lender until accepted and executed by Lender at its executive office
in South Norwalk, Connecticut. All options, powers and rights granted to Lender
hereunder or under any promissory note, guaranty, letter of credit agreement,
depository agreement, instrument, document or other writing delivered to Lender
shall be cumulative and shall be in addition to any other options, powers or
rights which Lender may now or hereafter have under any applicable
14
law or otherwise. Time is of the essence in the payment and performance of all
of Customer's obligations under the Loan Agreement. The captions in the Loan
Agreement are for convenience only and shall not define or limit any of the
terms thereof.
Any provisions of the Loan Agreement which are unenforceable in any
jurisdiction shall. as to such jurisdiction, be ineffective to the extent of
such unenforceability without invalidating the remaining provisions hereof, and
any such unenforceability in any jurisdiction shall not render unenforceable
such provisions in any other jurisdiction. To the extent permitted by applicable
law, Customer hereby waives any provisions of law which render any provision of
the Loan Agreement unenforceable in any respect.
CUSTOMER ACKNOWLEDGES THAT THE TRANSACTION OF WHICH THIS LOAN AGREEMENT IS
A PART IS A COMMERCIAL TRANSACTION AND EXCEPT AS OTHERWISE PROVIDED IN THE LOAN
AGREEMENT CUSTOMER HEREBY WAIVES, TO THE EXTENT PERMITTED BY APPLICABLE LAW,
NOTICE AND JUDICIAL HEARING IN CONNECTION WITH LENDER'S TAKING POSSESSION OR
LENDER'S DISPOSITION OF ANY OF THE COLLATERAL, INCLUDING, WITHOUT LIMITATION,
ANY AND ALL PRIOR NOTICE AND HEARING FOR ANY PREJUDGMENT REMEDY OR REMEDIES AND
ANY SUCH RIGHT WHICH CUSTOMER WOULD OTHERWISE HAVE UNDER THE CONSTITUTION OR ANY
STATUTE OF THE UNITED STATES OR OF ANY STATE, INCLUDING, WITHOUT LIMITATION, ITS
RIGHTS TO NOTICE AND HEARING UNDER CHAPTER 903A OF THE CONNECTICUT GENERAL
STATUTES.
THE LOAN AGREEMENT AND ANY OTHER WRITTEN AGREEMENT(S) BETWEEN THE PARTIES
EXECUTED SIMULTANEOUSLY HEREWITH REPRESENT THE FINAL AGREEMENT BETWEEN THE
PARTIES CONCERNING THE SUBJECT MATTER HEREOF, AND SUPERSEDE AND MAY NOT BE
CONTRADICTED BY ANY PRIOR WRITTEN AGREEMENTS BETWEEN THE PARTIES, INCLUDING,
WITHOUT LIMITATION, PROPOSALS, LETTERS, COMMITMENT LETTERS OR BY ANY PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS BETWEEN THE PARTIES. CUSTOMER
ACKNOWLEDGES AND CERTIFIES THAT NO SUCH ORAL AGREEMENTS EXIST. THE LOAN
AGREEMENT MAY NOT BE AMENDED, NOR MAY ANY RIGHTS UNDER THE LOAN AGREEMENT BE
WAIVED, EXCEPT BY AN INSTRUMENT IN WRITING SIGNED BY THE PARTY AGAINST WHOM SUCH
AGREEMENT OR WAIVER IS ASSERTED. The failure of Lender at any time or times
hereafter to require strict performance by Customer of any of the provisions,
warranties, terms and conditions contained in the Loan Agreement or in any other
agreement, guaranty, note, depository agreement, letter of credit, instrument or
document now or at any time or times hereafter executed by Customer or an
Affiliate of Customer and delivered to Lender shall not waive, affect or
diminish any right of Lender at any time or times hereafter to demand strict
performance thereof. The Loan Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute but one and the same instrument. Each reference herein
to Lender" shall be deemed to include its successors and assigns, and each
reference to "Customer" and any pronouns referring thereto as used herein shall
be construed in the masculine, feminine, neuter, singular or plural, as the
context may require, and shall be deemed to include the legal representatives,
successors and assigns of
15
Customer, all of whom shall be bound by the provisions hereof. EACH REFERENCE
HEREIN TO "CUSTOMER" SHALL MEAN AND INCLUDE ANY AND ALL CUSTOMERS WHO SIGN
BELOW, EACH OF WHOM SHALL BE JOINTLY AND SEVERALLY LIABLE UNDER THIS LOAN
AGREEMENT.
The Loan Agreement and all related documents, including (a) amendments,
addenda, consents, waivers and modifications which may be executed
contemporaneously or subsequently herewith, (b) documents received by Lender
from the Customer, and (c) financial statements, certificates and other
information previously or subsequently furnished to Lender, may be reproduced by
Lender by any photographic, photostatic, microfilm, micro-card, miniature
photographic, compact disk reproduction or other similar process and Lender may
destroy any original document so reproduced. Customer agrees, herein waives all
right to object to the admissibility of such reproduction and stipulates that
any such reproduction shall, to the extent permitted by law, be admissible in
evidence as the original itself in any judicial or administrative proceeding
(whether or not the original itself is in existence and whether or not the
reproduction was made by Lender in the regular course of business) and that any
enlargement, facsimile or further reproduction of the reproduction shall
likewise be admissible in evidence.
18. SURVIVAL. Sections 6, 7, 9, 10, 11, 13, 15, and 17 shall survive and
continue in full force and effect without regard to the payment in full of all
Obligations under the Loan Agreement.
Executed and delivered by duly authorized representatives of the parties
hereto as of the date set forth below.
LENDER CUSTOMER:
OXFORD VENTURE LEASING, LLC PARADIGM GENETICS, INC.
By: /s/ X.X. Xxxxxxxxx By: /s/ Xxxx Xxxxx
------------------- ---------------
Name: X.X. Xxxxxxxxx Name: Xxxx Xxxxx
----------------- -------------
Title: President Title: CEO/President
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Date: July 7, 1998 Date: July 6, 1998
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16
SCHEDULE 1
Trade Names
17
SCHEDULE 2
Name Changes; Changes in Chief Executive Office
18
