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Title: |
Master Loan and Security Agreement |
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Entities: |
3 Dimensional Pharmaceuticals Inc; Comdisco Holding Co. Inc.; Micron Electronics Inc.; New Brunswick Scientific Co. Inc. |
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Date: |
2000 |
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Preview shows 49KB of 297KB total |
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$86 |
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#1252139 |
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MASTER LOAN AND SECURITY AGREEMENT NO. 7110
-------------------------------------------
PHOENIXCOR, INC.
---------------
MASTER LOAN AND SECURITY AGREEMENT
----------------------------------
This Master Loan and Security Agreement is entered into as of the 18th day
of June, 1998 by and between Phoenixcor, Inc., a Delaware corporation, having
its principal place of business at 65 Water Street, South Norwalk, Connecticut
06854 (the "Lender") and 3-Dimensional Pharmaceuticals, Inc. a Delaware
corporation having its principal place of business at Eagleview Corporate
Center, 665 Stockton Drive, suite 104, Exton, PA 19341 (the "Borrower". The
Lender and Borrower agree as follows:
1. THE LOANS. Subject to the terms and conditions of this Agreement, the
---------
Lender will make one or more loans to the Borrower upon the terms and conditions
set forth in this Agreement and each schedule which may be executed from time to
time by the parties hereto and identified as a schedule to this Agreement
(individually, a "Schedule" and collectively, the "Schedules") and all
amendments, riders and supplements hereto and thereto. This Agreement and each
Schedule which may be executed pursuant hereto shall constitute a separate and
distinct Loan (each a "Loan" and collectively, the "Loans") repayable as
provided in this Agreement and the applicable Schedule.
2. REPAYMENT OF LOANS. Borrower agrees to repay each Loan in the number
------------------
and the amount of successive monthly or quarterly installments (which shall be
inclusive of interest, unless otherwise indicated) reflected in the applicable
Schedule The advance payment with respect to a Schedule, if any, shall be due
and payable upon execution of the Schedule. The first periodic installment
(after excluding the advance payment, if any) with respect to a Schedule shall
be due on the first (1st) day of the month following the advance of the Loan
proceeds by Lender (the "Commencement Date"). The remaining periodic installment
payments shall be due and payable on the same day of each successive month (or
quarter, if quarterly payments are provided for in the Schedule). However, the
parties may select another Commencement Date by noting the same in the Special
Provisions section of the Schedule or by a separate writing signed by Lender and
Borrower in which case the first periodic installment payment shall be due on
such date. The Borrower authorizes the Lender to insert the Commencement Date in
each Schedule, determined in accordance with the foregoing provisions. Unless
otherwise specifically provided for in this Agreement or a Schedule, no Loan may
be prepaid.
1
<PAGE>
3. SECURITY INTEREST. To secure payment when due of the Loan described in
-----------------
the applicable Schedule, any interim fundings against such Loan, the performance
of all other obligations of the Borrower under this Agreement and the applicable
Schedule and the payment and performance of any and all other Schedules, debts,
obligations and liabilities of Borrower to Lender whether direct, contingent or
joint and several, now existing or hereafter arising, and any renewals,
extensions and modifications of such debts, obligations and liabilities,
Borrower hereby conveys, assigns and grants to Lender a continuing security
interest in and to (i) the equipment described in the applicable Schedule and
all amendments, riders and supplements thereto including all present and future
additions, attachments, replacements, accessions and accessories thereto (the
"Equipment"), and all substitutions and proceeds thereof including all proceeds
of insurance thereon, and (ii) all other equipment, inventory, accounts,
receivables, goods and assets of any and every kind including, but not limited
to, all items of intangible property, wherever located now or hereafter
belonging -to Borrower or in which Borrower has any interest, and all proceeds
of the foregoing including insurance proceeds all of the above, collectively,
the "Collateral".
BORROWER GRANTS LENDER THE AUTHORITY TO FILE THIS AGREEMENT AND EACH
SCHEDULE OR A CARBON, PHOTOGRAPHIC OR OTHER REPRODUCTION THEREOF AS A FINANCING
STATEMENT UNDER THE UNIFORM COMMERCIAL CODE WITH RESPECT TO ALL SECURITY
INTERESTS CREATED HEREBY OR THEREBY.
4. FINANCING AGREEMENT. THIS AGREEMENT IS SOLELY A FINANCING AGREEMENT.
-------------------
BORROWER ACKNOWLEDGES THAT THE EQUIPMENT HAS BEEN OR WILL BE SELECTED AND
ACQUIRED SOLELY BY BORROWER AND THAT LENDER HAS NOT AND DOES NOT MAKE ANY
WARRANTY WITH RESPECT TO ITS CONDITION, MERCHANTABILITY, SUITABILITY, CAPACITY
OR FITNESS FOR ANY PARTICULAR PURPOSE.
5. UNCONDITIONAL OBLIGATION TO PAY, LATE PAYMENTS, ETC. All payments due
---------------------------------------------------
under a Schedule or hereunder shall be paid to Lender or its assigns without
notice or demand and without abatement, offset, defense or counterclaim, at
Lender's principal office shown above, or such other place as Lender or its
assignee may designate in writing to Borrower. Borrower's obligation to pay the
installments and other payments due under a Schedule or hereunder shall be
absolute and unconditional and shall not be affected by reason of (i) any defect
in, lack of fitness for use of, damage to, loss of possession or use of or
destruction of, all or any of the Equipment described in such Schedule; (ii) the
prohibition or other restriction against Borrower's use of said
2
<PAGE>
Equipment; or (iii) for any other cause, it being the agreement of the parties
that the Loan and any other amount payable by Borrower under a Schedule or
hereunder shall continue to be payable in all events in the manner and at the
times provided in the Schedule and this Agreement.
All Loans shall become immediately due and payable in their entirety upon
the occurrence of any Event of Default (as defined below). If any periodic
installment payment or other payment is more than five (5) days late, Lender
may, at its election, and subject to prior exercise of its right of
acceleration, accept the payment in arrears and Borrower shall pay, as
liquidated damages, a late charge equal to two (2%) percent per month (computed
on the basis of a thirty (30) day month) on each defaulted payment from the due
date thereof. In no event shall any amount payable to Lender as interest,
including any sum held by a court of competent jurisdiction to be "interest"
under applicable law, exceed, with respect to any period of time, the highest
rate of interest permitted by applicable law. Any amount received by Lender
determined to be in excess of the highest rate of interest received by Lender
shall be refunded to Borrower.
6. REPRESENTA11ONS AND WARRANTIES. Borrower warrants and represents as
------------------------------
follows as of the date hereof and as of the date of execution of each Schedule:
(i) unless it is an individual or sole proprietorship, Borrower is duty
organized, validly existing and in good standing under applicable law and is
duly qualified to do business wherever necessary to carry on its business and
operations and to own Its property; (ii) Borrower has full power and authority
to execute, deliver and perform its obligations under this Agreement and the
Schedules; (iii) the execution and delivery of this Agreement and the Schedules
has been authorized by all requisite corporate (or partnership or company)
action; (iv) the execution, delivery and performance of this Agreement and, the
Schedules do not and will not constitute a breach, default or violation of or
under Borrower's articles of incorporation, by laws (partnership or limited
liability company agreement) or any other agreement, law, order, lease, judgment
or injunction to which it is a party or may be bound; (v) the Equipment is (or,
on the applicable date the Loan proceeds are advanced, will be) lawfully owned
by Borrower, free and dear of all liens, encumbrances and security interests and
Borrower will warrant and defend title thereto against all claims; (vi) no
consent or approval of, notice to, or filing with any governmental authority is
required for Borrower to sign, deliver and perform under this Agreement and each
Schedule; (vii) Borrower has not granted and will not grant to any one other
than Lender a security interest in the Equipment and no Financing Statement or
other instrument affecting the Equipment nor rights therein, bearing the
signature of, or otherwise authorized by, Borrower is on file in any public
office; (viii)
3
<PAGE>
there are no suits or proceedings pending or threatened, in court or before any
commission, board or other administrative agency against or affecting Borrower
which could, in the aggregate, have a material adverse effect on Borrower, its
business or operations, or its ability to perform its obligations under this
Agreement or the Schedules; (ix) all financial statements delivered and to be
delivered to Lender in connection with the Loans are and will be true and
correct in all material respects and have been and will be prepared in
accordance with generally accepted accounting principles, and since the date of
the most recent financial statements, there has been no material adverse change
in Borrower's financial affairs or business operations and (x) Borrower has
filed all tax returns required to be filed prior to the date of this Agreement
taking into account any extension of time to file granted or permitted by the
taxing authority and Borrower has paid or adequately provided for all taxes
payable by it.
7. INDEMNIFICATION BY BORROWER. Borrower shall exonerate and indemnify
---------------------------
Lender against and hold it harmless from, any and all claims, actions, suits,
proceedings, losses, judgments, damages and liabilities, including reasonable
attorneys' fees and other costs and expenses in connection therewith or incident
thereto, for death of or injury to any person whomsoever and for any loss of or
damage to or destruction of any property whatsoever and irrespective of the
legal basis of such claim or action including the doctrine of strict liability
in tort or any similar doctrine, caused by or arising out of or allegedly caused
by or arising out of, or in any way connected with or resulting from or
allegedly resulting from any of the Equipment, including, without limiting the
generality of the foregoing, the manufacture, selection, delivery, possession,
use, operation, storage or maintenance at any time during the term hereof.
Borrower shall also exonerate and indemnify Lender against and hold it harmless
from any and all claims, actions, suits proceedings, losses, damages and
liabilities, including reasonable attorney's fees, which Lender may suffer by
reason of any patent infringement or alleged patent infringement in connection
with the ownership, use or operation of the Equipment. This covenant of
indemnity shall continue in full force and effect notwithstanding termination of
this Agreement and all Schedules.
8. INSURANCE. Borrower shall, at its sole cost and expense, procure and
---------
maintain, so long as Borrower is indebted to Lender on any Loan or on any other
liability (I) insurance insuring the Equipment against all risks of physical
loss, theft, damage and destruction with extended coverage in an amount equal to
the greater of (a) the amount of the Loan under the applicable Schedule or (b)
the full replacement value of the Equipment with loss payable solely to Lender
(and its assigns) and Borrower as their interests may appear and (ii) personal
injury liability and property damage insurance with respect to the Equipment and
the use thereof in such amounts as may be
4
<PAGE>
reasonably acceptable to Lender, and naming Lender (and its assigns) as
additional insured. All insurers and coverages must be reasonably satisfactory
to Lender. Borrower shall deposit said policy or policies or duplicates thereof
or certificates of insurance with Lender and said policies shall provide that
the policies may not be cancelled or altered without at least thirty (30) days
prior notice to Lender and that the coverage shall not be invalidated against
Lender because of any violation of any condition or warranty contained in any
policy or application therefor by Borrower or by reason of any action or
inaction of Borrower.
9. USE, REPAIRS. LOSS AND DAMAGE. Borrower agrees to maintain the
-----------------------------
Equipment in good condition and repair and in accordance with the manufacturer's
instructions, manuals and warranties (if any) and the requirements of any
applicable insurance and any governmental authority having jurisdiction.
Borrower shall pay for all fuel, service, inspection, overhaul, replacements,
substitutions, material and labor necessary or desirable for the proper use,
repair, operation and maintenance of the Equipment. All risks of loss, theft,
damage or destruction of the Equipment shall be borne by Borrower and Borrower
shall promptly notify Lender in writing of any such loss, theft, damage or
destruction. In the event of any damage to the Equipment (unless the same is
damaged beyond repair) Borrower shall, at its expense, place the same in good
repair, condition and working order. If the Equipment set forth in a schedule or
Schedules is determined by Lender to be lost, stolen or damaged beyond repair,
or should said Equipment be confiscated, seized or the use and title thereof
requisitioned to someone other than Borrower, Borrower shall immediately pay to
Lender in addition to unpaid installments, late charges and other sums past due,
an amount equal to the then remaining periodic installments due under the
Schedule or Schedules covering the said Equipment discounted to present value at
the rate of six (6%) percent per annum, less the net amount of the recovery, if
any, received by Lender from insurance on the Equipment.
10. BORROWER'S ADDITIONAL COVENANTS. Borrower hereby covenants and agrees
-------------------------------
as follows: (i) the Equipment will at all times be used only for business or
commercial purposes and will be retained in Borrower's possession at its
principal address set forth above (and not moved therefrom without Lender's
prior written consent) unless otherwise specifically provided in a Schedule and,
if another location is provided in a Schedule, the Equipment will be retained at
and not moved from such other location without Lender's prior written consent;
(ii) Borrower will keep the Equipment free and dear of liens, rights of
distraint, charges and encumbrances or claims of the owner (or lessor) of the
real estate in which the same is installed and any purchaser or present or
future creditor obtaining a lien on such real estate and will, upon Lender's
request, obtain and deliver a waiver of any
5
<PAGE>
of the foregoing as to the Equipment in recordable form supplied by the Lender
(iii) except for the security interest granted hereby, Borrower will keep the
Equipment free and clear of any security interest, lien or encumbrance and will
not sell, lease, assign (by operation of law or otherwise), exchange or
otherwise dispose of any of the Equipment; (iv) at the request of Lender,
Borrower will affix conspicuous tags or plates on the Equipment containing a
notation with Lender's name and will join Lender in execution of one or more
Financing Statements pursuant to the Uniform Commercial Code to establish and
maintain its security interest in the Collateral, in form satisfactory to
Lender, and will pay any filing fees and/or costs with respect thereto and for
lien searches; (v) Borrower authorizes Lender to file one or more Financing
Statements covering the Collateral without Borrower's signature thereto for the
purposes of continuation and/or termination of existing Financing Statements;
(vi) Borrower will immediately notify Lender in writing of any change in its
place(s) of business or the adoption or change of any trade name or fictitious
business names and will execute any additional Financing Statements as Lender
may request to perfect and maintain its security interest, but such notice shall
not be deemed an authorization to move the Collateral without the prior written
consent of Lender (vii) if any part of the Collateral is subject to a
certificate of title law, Borrower will cause Lender's security interest to be
noted thereon and promptly deliver such certificate of title to Lender (viii)
Borrower will allow Lender and its representatives free access to the Collateral
at all times during normal business hours, for purposes of inspection and,
following an Event of Default, Lender shall have the right to demonstrate and
show the Collateral to others; and (ix) Borrower will furnish to Lender (and
will cause any guarantor of Borrower's obligations hereunder to furnish to
Lender) (a) its unaudited quarterly Financial Statements within thirty (30) days
after the end of its first three quarters in each fiscal year, (b)its certified
annual Financial Statements within ninety (90) days after the close of its
fiscal year, prepared by an independent certified public accountant in
accordance with generally accepted accounting principles and (C) all other
financial information and reports that Lender may from time to time reasonably
request, including income tax returns of Borrower and any guarantor of
Borrower's obligations hereunder.
11. CROSS COLLATERALIZAT1ON. Without in any way limiting the provisions of
-----------------------
Section 3, as additional security for the Borrower's obligations under this
Agreement and any Schedule, Borrower grants to Lender a further security
interest in (I) all of the Equipment and Collateral set forth in every other
Schedule and (ii) all machinery, equipment, goods and other collateral covered
by any other lease, security agreement or loan and security agreement or other
contract (collectively, the "other agreements") between the Borrower and the
Lender
6
<PAGE>
whether such other agreements are now in existence or hereafter come into
existence and whether such other agreements were originally documented in the
name of Lender or assigned to Lender, and Borrower assigns to the Lender as
security for its obligations under this Agreement and each Schedule, all of its
rights, title and interest in surplus money to which Borrower may be entitled
upon the sale or liquidation of the Equipment and Collateral set forth in every
other Schedule and the machinery, equipment, goods and other collateral covered
by the other agreements.
Anything above to the contrary notwithstanding, the benefit of the
foregoing cross collateral provisions shall apply to the benefit of the Lender
and any assignees holding a Schedule to this Agreement only to the extent that
the Lender or such assignee is also the holder of one or more Schedules or other
agreements and only to the extent that the Lender or such assignee has retained
or received an assignment of the property described in such other Schedule(s) or
other agreements.
12. TAXES AND OTHER CHARGES. Borrower agrees to pay promptly when due all
-----------------------
registration, title, license and other fees and assessments and all sales, use,
gross receipts, ad valorum, property and any and all other taxes imposed by any
State, Federal, local or foreign government upon this Agreement or upon the
ownership, shipment, delivery, use or operation of the Equipment or any
Collateral or upon or measured by any payments due hereunder (other than taxes
on or measured solely by the net income of Lender) and any fines, penalties and
interest thereon.
13. BORROWER'S FAILURE TO PAY TAXES. INSURANCE, ETC. Should Borrower fail
-----------------------------------------------
to make any payment or do any act as herein provided (including, but not limited
to, payment of taxes or for insurance), Lender shall have the right, but not the
obligation, and without releasing Borrower from any obligation hereunder, to
make or do the same, and to pay any sum due in connection therewith or to
contest or compromise any encumbrance, charge or lien and in exercising any such
rights, incur any liability and expend whatever amounts in its absolute
discretion it may deem necessary therefor. All sums so incurred or expended by
Lender shall be payable by Borrower on demand with interest at the rate of two
(2%) percent per month.
14. DEFAULT. The occurrence of any one of the following shall constitute
-------
an Event of Default hereunder and under each Schedule: (I) Borrower fails to pay
any periodic installment payment, or other amount due hereunder or under any
Schedule, when the same becomes due and payable on or before the fifth (5th) day
following the receipt of written notice of non-payment; (ii) Borrower removes,
sells, transfers, encumbers, or parts with
7
<PAGE>
possession of the Equipment or any items of Equipment or attempts to do any of
the foregoing; (iii) Borrower fails to maintain in force the required insurance
on or in connection with any Equipment in compliance herewith or fails to
provide loss payable protection to Lender in form satisfactory to Lender (iv)
any representation or warranty made by Borrower herein or in any other agreement
between the parties or in any statement given to Borrower shall be materially
untrue; (v) Borrower fails to observe or perform any of the other obligations
required to be observed or permitted by Borrower hereunder or under any Schedule
or other obligation or indebtedness of Borrower to Lender otherwise owing or due
by Borrower to Lender in any other agreement now or hereafter executed between
the parties hereto, and such failure shall continue uncured for twenty (20) days
after written notice thereof to Borrower; (vi) Borrower (a) fails to pay any
indebtedness for borrowed money of the Borrower or any interest or premium
thereon, when due (whether by scheduled maturity, required prepayment,
acceleration, demand or otherwise) or (b) fails to perform or observe any term,
covenant, or condition on its part to be performed or observed under any
agreement or instrument relating to such indebtedness for borrowed money when
required to have been performed or observed, if the effect of such failure to
perform or observe is to accelerate or permit the acceleration of such
indebtedness, or if any such indebtedness shall be declared to be due or payable
or required to be prepaid (other than by a regularly scheduled required
prepayment) prior to the stated maturity thereof; (vii) if Borrower leases the
premises where the Equipment is located, a breach of such lease by Borrower and
the commencement of an action by the landlord to evict Lessee or to repossess
the premises; (viii) Borrower sells, leases or disposes of any of its assets
except in the ordinary course of its business and except for the disposition of
any obsolete property not useful to Borrower; (ix) Borrower ceases doing
business as a going concern, makes an assignment for the benefit of creditors,
admits in writing its inability to pay its debts as they become due, files a
voluntary petition in bankruptcy, is adjudicated a bankrupt or an insolvent,
files a petition seeking for itself any reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar arrangement under
any present or future statute, law or regulation or files an answer admitting
the material allegations of a petition filed against it in any such proceeding,
consents to or acquiesces in the appointment of a trustee, custodian, receiver
or liquidator of it or of all or any substantial part of its assets or
properties, or if Borrower takes any action looking to its dissolution or
liquidation, or an order for relief is entered under the Bankruptcy Code against
Borrower; (x) if within sixty (60) days after the commencement of any
proceedings against Borrower seeking reorganization, arrangement, readjustment
liquidation, dissolution or similar relief under any present or future statute,
law or regulation, such proceedings, shall not have
8
<PAGE>
been dismissed or if within sixty (60) days after the appointment, without
Borrower's acquiescence, of any trustee, custodian, receiver or liquidator of it
or of all or any substantial part of Its assets and properties, such appointment
shall not be vacated;(xi) Borrower sells all or substantially all of its assets
or consolidates with or merges into any other entity or Borrower's stockholders,
partners or members sell all or substantially all of their stock or partnership
or membership interests without Lender's prior written consent, which consent
shall not be unreasonably withheld if, in Lender's reasonable business judgment,
the surviving or acquiring entity in the event of such merger or consolidation
has a financial and credit standing equal to or greater than that of Borrower;
or (xii) a guarantor of Borrower's obligations hereunder dies or is dissolved,
or a petition in bankruptcy is filed by or against such guarantor of Borrower's
obligations hereunder or such guarantor defaults in observing or performing any
obligation owing under any guaranty or other agreement with Lender now or
hereafter executed and such default continues uncured for twenty (20) days after
written notice to Borrower and such guarantor.
15. REMEDIES. Upon the occurrence of an Event of Default, or at any time
--------
thereafter, Lender shall have the right to recover from Borrower, as liquidated
damages for loss of a bargain and not as a penalty, a sum equal to the aggregate
of the following: (a) all unpaid periodic installment payments and other sums
due under this Agreement and the applicable Schedule to the date of default plus
late charges, if any, (b) the present value (using a six (6%) percent per annum
discount rate) of all remaining installments due under this Agreement and each
Schedule; and (C) interest on the aggregate of the amounts specified in (a) and
(b) from the date of default at the rate of two (2%) percent per month. In
addition, Lender shall have the right to recover from Borrower any expenses paid
or incurred by Lender in connection with the enforcement of Its rights under
this Agreement and each Schedule and the repossession, transport, insuring,
holding, repair, preparing for sale and subsequent sale, lease or other
disposition of the Collateral including attorney fees and legal expenses as
provided below (collectively, "Repossession Expenses"). BORROWER AND LENDER
WAIVE ANY AND ALL RIGHTS TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED
UPON THIS AGREEMENT OR RELATING TO THE COLLATERAL. The Lender shall have all of
the rights and remedies of a Secured Party under the Uniform Commercial Code and
Lender is hereby authorized and empowered, with the aid and assistance of any
person or persons, to enter any premises where the Collateral or any part
thereof is, or may be, placed, and to assemble and/or remove same and/or to
render it unusable and sell and dispose of such Collateral at one or more public
or private sales upon at least seven (7) days written notice to Borrower for
such sale. The Lender toward the payment of the
9
<PAGE>
Repossession Expenses shall apply the proceeds of each such sale; the liquidated
damages specified above and other indebtedness secured hereby. Should the
proceeds of any such sale be insufficient to fully pay all the items above
mentioned Borrower hereby covenants and agrees to pay any deficiency to the
Lender but nothing herein contained shall be construed to require Lender to sell
any Collateral before seeking damages from Borrower. If Lender employs counsel
for the purpose of effecting collection of any monies due hereunder (whether or
not Lender has retaken the Collateral or any part hereof) or for the purpose of
recovering the Collateral, or for the purpose of protecting Lender's interest
because of any default of Borrower or because Lender is named as a party to a
legal proceeding commenced against Borrower, whether or not Borrower is in
default, Borrower agrees to pay Lender's reasonable attorney's fees and legal
costs and expenses inclusive of those 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.
The Lender may require Borrower to assemble the Collateral and make it available
to Lender at a place to be designated by Lender which is reasonably convenient
to both parties. All rights and remedies hereunder are cumulative and not
exclusive and a waiver by Lender of any breach by Borrower of the terms,
covenants, and conditions hereof shall not constitute a waiver of future
breaches or defaults, and no failure or delay on the part of Lender in
exercising any of its options, powers, rights or remedies, or partial or single
exercise thereof, shall constitute a waiver thereof. If any court of competent
jurisdiction determines that any provision of this Section 15 is invalid or
unenforceable in any jurisdiction, in whole or in part, such determination, as
to such jurisdiction, shall not prohibit Lender from enforcing its rights and
establishing its damages sustained as the result of any breach of this Agreement
in accordance with the laws of such jurisdiction.
16. ASSIGNMENT. Lender may grant security interests in or otherwise assign
----------
or transfer (or grant participations in) all or any part of this Agreement or
any Loan or Schedules hereto or any installments or other sums due or to become
due hereunder, without Borrower's consent. In the event Lender transfers any
Schedule, Lender shall deliver a copy of this Agreement to the assignee along
with the manually executed copy of the transferred Schedule marked "Original".
In such event, (i) the copy of this Agreement together with the said Original
Schedule shall constitute chattel paper under the Uniform Commercial Code, (ii)
the terms of this Agreement shall be deemed incorporated in the transferred
Schedule and (iii) the assignee holding the assigned Schedule (which together
with the copy of this Agreement shall constitute a single agreement) shall be
the Lender of the Loan set forth in such assigned Schedule secured by the
Collateral described therein and may exercise its rights
10
<PAGE>
and remedies with respect thereto separately and independently of the holder of
this Agreement and any other Schedules. Unless specifically transferred by
Lender to the assignee in Lender's assignment to the assignee, the assignee
shall not have any interest in the portion of the Collateral described in
Section 3 (ii) of this Agreement. In the event Lender transfers any Schedule,
Borrower agrees that the right of the assignee to receive installment payments
and other amounts payable under the assigned Schedule as well as any other right
of the assignee shall not be subject to any defense, set-off or counterclaim
which Borrower may have against Lender. Upon Lender's giving notice to Borrower
of any such assignment, Borrower shall promptly acknowledge its obligations
hereunder to the assignee, and shall comply with the written directions or
demands of such assignee, shall make all installment payments and other payments
due with respect to the assigned Schedule as such assignee may direct in writing
and shall send all notices provided for or permitted under this Agreement with
respect to such Schedule to such assignee. Following any such assignment the
term "Lender" shall, as to the assigned Schedule, be deemed to refer to Lender's
assignee, but no such assignee shall be deemed to assume any obligation or duty
imposed upon Lender hereunder and Borrower shall look only to Lender for
performance thereof. As used in this Section 16, "assign" shall be deemed to
include a pledge, sale of, or grant of a mortgage on, or a Security interest in,
any of the Collateral or a Schedule by Lender and the term "assignee" shall be
deemed to refer to the recipient of such pledge, hypothecation, sale, mortgage,
or security Interest. This Agreement and Borrower's interest herein and in any
Schedule shall not be transferable or assignable by Borrower without the
Lender's express prior written consent and any such purported assignment by
Borrower other than in compliance with the provisions of this Section 16 shall
be null and void ab initio.
17. SECURITY DEPOSIT. Lender may, at its option, apply the Security
----------------
Deposit, if any is indicated in a Schedule, to cure any default of Borrower,
whereupon Borrower shall promptly restore such Security Deposit to its original
amount. Lender may also apply the Security Deposit to any sums owing by Borrower
under Section 15 hereof including the liquidated damages. Lender shall return to
Borrower any unapplied Security Deposit without interest upon full payment and
performance of Borrower's obligations hereunder and under all Schedules hereto.
18. GENERAL PROVISIONS. THE OBLIGATION OF THE LENDER TO MAKE ONE OR MORE
------------------
LOANS HEREUNDER IS SUBJECT TO LENDER'S CREDIT APPROVAL COLLATERAL APPRAISALS AND
SUCH OTHER CRITERIA AS LENDER MAY IN ITS SOLE AND ABSOLUTE DISCRETION DETERMINE.
No person except a duly authorized officer of Lender shall have any power to
11
<PAGE>
modify, amend or waive any of the provisions hereof. All the Borrower's
covenants herein shall survive the termination of this Agreement. Notices
hereunder shall be in writing and shall be deemed given when personally
delivered, delivered by overnight carrier or sent by facsimile to a party's
facsimile number, or three days after having been mailed to the other party at
the address specified for each herein or to such other address as either party
may, from time to time, provide, in writing to the other party. Forbearance or
indulgence by Lender in any regards shall not constitute a waiver of the
covenant or condition to be performed by Borrower to which the same may apply.
The section headings are for convenience and are not a part of this Agreement
The Lender is authorized and empowered to date this Agreement and the Schedules
and to fill in blank spaces in accordance with the terms of the transaction,
including, but not limited to, dates, serial numbers, Equipment descriptions and
the assignment of an account number. This Agreement shall be binding upon and
inure to the benefit of the heirs, executors, administrators, successors and
permitted assigns of the parties, and shall be subject to modification only by
agreement in writing between the parties. Any provision of this Agreement which
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof. THIS
AGREEMENT AND THE RIGHTS AND OBUGATIONS OF THE PARTIES SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CONNECTICUT. This
agreement may not be terminated, modified or amended, nor shall any waiver of
any provisions herein be deemed to have occurred regardless of the action or
non-action of the Lender in connection therewith except upon written agreement
of the parties. THIS AGREEMENT, THE SCHEDULES HERETO AND ANY OTHER WRITTEN
AGREEMENTS EXECUTED SIMULTANEOUSLY HEREWITH OR SIMULTANEOUSLY WITH THE EXECUTION
OF A SCHEDULE SUPERSEDE ANY PRIOR PORPOSAL LETTERS, COMMITMENT LETTERS OR
NEGOTIATIONS AND THERE ARE NO ORAL COVENANTS OR AGREEMENTS. This Agreement and
any Schedule shall not be binding upon the Lender until accepted and executed on
behalf of Lender at its South Norwalk, Connecticut office.
"LENDER" "BORROWER"
PHOENIXCOR, INC. 3-DIMENSIONAL PHARMACEUTICALS, INC.
/s/ Thomas J. Williams /s/ Scott Horvitz
--------------------------- ------------------------
BY: Thomas J. Williams BY: Scott Horvitz
------------------------ ---------------------
TITLE: Executive Vice President TITLE: Vice President, Finance
------------------------- ------------------------
12
<PAGE>
EXHIBIT A
EQUIPMENT SCHEDULE 3-DIMENSIONAL PHARM
SCHEDULE TO MASTER LOAN AND SECURITY AGREEMENT
----------------------------------------------
MASTER LOAN AND SECURITY AGREEMENT NO.7110 DATED: June 18, 1998
---- -------------
SCHEDULE NO.01 DATED: June 18, 1998
-- -------------
<TABLE>
<S> <C>
-----------------------------------------------------------------------------------------------
LENDER: PHOENIXCOR, INC. BORROWER: 3-Dimensional Pharmaceuticals, Inc.
65 WATER STREET Eagleview Corporate Center,
SOUTH NORWALK, CT 06854 665 Stockton Drive, Suite 104
Exton, PA 19341
</TABLE>
Equipment Location (if other than above address of Borrower): n/a
---
Lender and Borrower have entered into a Master Loan and Security
Agreement No. 7110 dated June 18, 1998 (the "Master Loan Agreement") which is
incorporated herein and this is a Schedule to the Master Loan Agreement. All
words and terms used herein and not specifically defined herein shall have the
same meanings as set forth in the Master Loan Agreement.
1. THE LOAN AND LOAN REPAYMENT. As requested by Borrower and pursuant
to the Master Loan Agreement, Lender agrees to lend to Borrower the sum of one
---
million six hundred forty-eight thousand two hundred six dollars and three
--------------------------------------------------------------------------
cents. Borrower agrees to repay the Loan in successive installments (which
-----
installment payments are inclusive of interest) as set forth in the following
Schedule:
<TABLE>
<S> <C>
SCHEDULE
-----------------------------------------------------------------------------------------------
Advance Payment Amount: $40,671.13
Number of Installments (Exclusive of Advance Payment): 46
Payment Period: X Monthly ___Quarterly
---
Periodic Installment Payment Amount Per Period: $40,671.13;
-----------
Followed by One Monthly Installment Payment of $164,820.60
-----------
-----------------------------------------------------------------------------------------------
Commencement Date: July 1, 1998 Security Deposit (if any): none
Special Provisions: (if any): none
</TABLE>
2. SECURITY. As security for Borrower's obligations under this Schedule
and the obligations contained in the Master Loan Agreement, the Borrower gives
and grants to the Lender a security interest in the Equipment described in the
attached Exhibit A.
3. LOAN DISBURSEMENT. Borrower hereby authorizes Lender to disburse the
Loan proceeds advanced pursuant to this Schedule as follows:
$1,648,206.03 To: 3-Dimensional Pharmaceuticals, Inc.
------------- -----------------------------------
$1,648,206.03 TOTAL PROCEEDS
-------------
By execution hereof, the signer certifies that he/she is a duly authorized
officer, partner or proprietor of Borrower and that he/she had read, accepted
and duly executed this Schedule to the Master Loan Agreement on behalf of
Borrower.
3-Dimensional Pharmaceuticals, Inc., (Borrower)
------------------------------------
BY:_________________________________
____________________________________
Print Name and Title
ACCEPTED AT LENDER'S OFFICE AT
SOUTH NORWALK, CONNECTICUT
PHOENIXCOR, INC. (Lender)
BY: _____________________
13
<PAGE>
EXHIBIT A
EQUIPMENT SCHEDULE 3-DIMENSIONAL PHARM
_________________________
Print Name and Title
14
<PAGE>
EXHIBIT A
The following description of property supplements, and is part,
Schedule No. 01 dated June 18, 1998 to Master Loan and Security Agreement No.
7110 dated June 18, 1998 between the undersigned Borrower and Phoenixcor, Inc.
and may be attached to said Loan Schedule and any related UCC Financing
Statements, Acceptance or Delivery Certificate or other document describing the
property:
See Attached Exhibit A Schedule
All property listed above complete with any and all attachments, accessions,
additions, replacements, improvements, modifications and substitutions thereto
and therefor and all proceeds including insurance proceeds thereof and
therefrom.
PHOENIXCOR, INC. 3-Dimensional Pharmaceuticals, Inc.
---------------- -----------------------------------
(Lender) (Borrower)
BY: /s/ Thomas J. Williams BY: /s/ Scott Horvitz
------------------------ ----------------------
TITLE: Executive Vice President TITLE: Vice President, Finance
------------------------- ------------------------
15
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT A
EQUIPMENT SCHEDULE 3-DIMENSIONAL PHARM
--------------------------------------------------------------------------------------------------------------------------
3-Dimensional Pharmaceuticals, Inc.
665 Stockton Drive, Suite 104
Equip Location Exton, PA 19341
--------------------------------------------------------------------------------------------------------------------------
Supplier Description Qty Serial No. Price Extended Sub-Total
Price
--------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Advanced Chemtech 1 lock, ASM, 96 Well H/C Rv, Tfe 1 97176 5,500.00 5,500.00
Shipping & Handling 40.00 5,540.00
--------------------------------------------------------------------------------------------------------------------------
Beckman JLA-10.500 Rotor Assy 1 97U1767 6,120.00 6,120.00
Insurance 18.36
Freight & Handling 24.97 6,163.33
--------------------------------------------------------------------------------------------------------------------------
BMG Lab Polar star 1 45,000.00 45,000.00
Incubation Chamber POLARstar 1 3,000.00 3,000.00
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