EXHIBIT 10.8
SECOND AMENDED AND RESTATED
REVOLVING CREDIT NOTE
$3,000,000 FEBRUARY 7, 2000
FOR VALUE RECEIVED, INFORMAX, INC., a Delaware corporation (the
"BORROWER"), promises to pay to the order of PNC BANK, NATIONAL ASSOCIATION (the
"BANK"), in lawful money of the United States of America in immediately
available funds, the principal sum of the lesser of THREE MILLION DOLLARS
($3,000,000) (the "REVOLVING CREDIT") or the aggregate unpaid principal amount
outstanding as of the Revolving Credit Expiration Date, together with interest
accruing on the outstanding principal balance from the date hereof, as provided
below:
1. LOAN AGREEMENT. This Note is issued in connection with the Loan
Agreement dated as of May 6, 1999 by and between the Borrower and the Bank, as
amended by Amendment No. 1 to Loan Agreement dated August 6, 1999, Amendment No.
2 to Loan Agreement dated November 30, 1999 and Amendment No. 3 to Loan
Agreement dated the date hereof, the terms of which are incorporated herein by
reference (as amended, the "LOAN AGREEMENT"), and is secured by the property
described in the Security Agreement by and between the Borrower and the Bank and
other loan documents entered into in connection with the Loan Agreement (the
"LOAN DOCUMENTS") and by such other collateral as previously may have been or
may in the future be granted to the Bank to secure this Note and the November
1999 Note (defined below).
2. RATE OF INTEREST. Amounts outstanding under this Note will bear interest
at a rate per annum determined in accordance with the Loan Agreement. Interest
will be calculated on the basis of a year of 360 days for the actual number of
days in each interest period.
3. ADVANCES. The Borrower may borrow, repay and reborrow hereunder until
the Revolving Credit Expiration Date, subject to the terms and conditions of
this Note and the Loan Documents (as defined herein). The "REVOLVING CREDIT
EXPIRATION DATE" shall mean February 2, 2001, or such later date as may be
agreed by the Bank and Borrower. The Borrower acknowledges and agrees that in no
event will the Bank be under any obligation to extend or renew the Revolving
Credit or this Note beyond February 2, 2001. In no event shall the aggregate
unpaid principal amount of advances under this Note exceed the face amount of
this Note.
4. PAYMENT TERMS. Accrued interest will be due and payable on the 15th day
of each month, beginning with the payment due, if any, on February 15, 2000. The
outstanding principal balance and any accrued but unpaid interest shall be due
and payable on the Revolving Credit Expiration Date. If any payment under this
Note shall become due on a Saturday, Sunday or public holiday under the laws of
the Commonwealth of Pennsylvania, such payment shall be made on the next
succeeding business day and such extension of time shall be included in
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computing interest in connection with such payment. The Borrower hereby
authorizes the Bank to charge the Borrower's deposit account at the Bank for any
payment when due hereunder. Payments received will be applied to charges, fees
and expenses (including reasonable attorney's fees), accrued interest and
principal in any order the Bank may choose, in its sole discretion.
5. DEFAULT. The occurrence of any one or more of the following events shall
constitute a "DEFAULT":
(a) the Borrower shall fail to pay all or any portion of interest or
principal on this Note when due; or
(b) an Event of Default shall occur under the Loan Agreement or other
Loan Documents.
Upon occurrence of a Default, the entire outstanding principal balance, together
with all interest, costs, charges and other amounts outstanding under this Note,
shall become immediately due and payable and, upon such acceleration, all
amounts due hereunder shall bear interest at the Default Rate (defined below).
6. LATE PAYMENTS; DEFAULT RATE. If the Borrower fails to make any payment
of principal when due or any payment of interest or other amount coming due
pursuant to the provisions of this Note within five (5) business days of the
date due and payable, the Borrower also shall pay to the Bank a late charge
equal to the lesser of five percent (5%) of the amount of such payment or $500.
Such five (5) business day period shall not be construed in any way to extend
the due date of any such payment. The late charge is imposed for the purpose of
defraying the Bank's expenses incident to the handling of delinquent payments
and is in addition to, and not in lieu of, the exercise by the Bank of any
rights and remedies hereunder, under the other Loan Documents or under
applicable law, and any reasonable fees and expenses of any agents or attorneys
which the Bank may employ. At the option of the Bank upon the occurrence of any
Event of Default (as defined in the Loan Agreement) and during the continuance
thereof, this Note shall bear interest at a rate per annum (based on a year of
360 days and actual days elapsed) which shall be two percentage points (2%) in
excess of the interest rate in effect from time to time under this Note but not
more than the maximum rate allowed by law (the "DEFAULT RATE"). The Default Rate
shall continue to apply whether or not judgment shall be entered on this Note.
7. PREPAYMENT. The indebtedness evidenced by this Note may be prepaid in
whole or in part at any time without penalty.
8. NO NOVATION. This Second Amended and Restated Revolving Credit Note is
issued in replacement for the Amended and Restated Revolving Credit Note dated
November 30, 1999 made by the Borrower, under the terms of the Loan Agreement
(the "NOVEMBER 1999 NOTE"). The indebtedness evidenced by the November 1999 Note
is continuing indebtedness
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and nothing herein shall be deemed to constitute a payment, settlement or
novation of the November 1999 Note, or release or otherwise adversely affect any
rights of the Bank against the Borrower and all amounts outstanding under the
November 1999 Note shall be transferred to, and be deemed to be outstanding
under, this Second Amended and Restated Revolving Credit Note.
9. MISCELLANEOUS. No delay or omission of the Bank to exercise any right or
power arising hereunder shall impair any such right or power or be considered to
be a waiver of any such right or power, nor shall the Bank's action or inaction
impair any such right or power. The Borrower agrees to pay on demand, to the
extent permitted by law, all costs and expenses incurred by the Bank in the
enforcement of its rights in this Note and in any security therefor, including
without limitation reasonable fees and expenses of the Bank's counsel. If any
provision of this Note is found to be invalid by a court, all the other
provisions of this Note will remain in full force and effect. The Borrower and
all other makers and indorsers of this Note hereby forever waive presentment,
protest, notice of dishonor and notice of non-payment. The Borrower also waives
all defenses based on suretyship or impairment of collateral, except for such
impairment which results from the gross negligence or willful misconduct of the
Bank. This Note shall bind the Borrower and its heirs, executors,
administrators, successors and assigns, and the benefits hereof shall inure to
the benefit of the Bank and its successors and assigns.
10. GOVERNING LAW. THIS NOTE has been delivered to the Bank and will be
deemed to be made in the Commonwealth of Pennsylvania. THIS NOTE WILL BE
INTERPRETED AND THE RIGHTS AND LIABILITIES OF THE BORROWER AND THE BANK
DETERMINED IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA,
EXCLUDING ITS CONFLICT OF LAWS RULES. The Borrower hereby irrevocably consents
to the exclusive jurisdiction of any state or federal court seated in Allegheny
County, Pennsylvania, and consents that all service of process be sent by
nationally recognized overnight courier service directed to the Borrower at the
Borrower's address set forth in the Loan Agreement and service so made will be
deemed to be completed on the business day after deposit with such courier;
provided that nothing contained in this Note will prevent the Bank from bringing
any action, enforcing any award or judgment or exercising any rights against the
Borrower individually, against any security or against any property of the
Borrower within any other county, state or other foreign or domestic
jurisdiction. The Borrower agrees that the venue provided above is the most
convenient forum for both the Bank and the Borrower. The Borrower waives any
objection to venue and any objection based on a more convenient forum in any
action instituted under this Note.
11. WAIVER OF JURY TRIAL. THE BORROWER IRREVOCABLY WAIVES ANY AND ALL
RIGHTS THE BORROWER MAY HAVE TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
CLAIM OF ANY NATURE RELATING TO THIS NOTE, ANY DOCUMENTS EXECUTED IN CONNECTION
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WITH THIS NOTE OR ANY TRANSACTION CONTEMPLATED IN ANY OF SUCH DOCUMENTS. THE
BORROWER ACKNOWLEDGES THAT THE FOREGOING WAIVER IS KNOWING AND VOLUNTARY.
The Borrower acknowledges that it has read and understood all of the
provisions of this Note, including waiver of jury trial, and has been advised by
counsel as necessary or appropriate.
WITNESS the due execution of this Second Amended and Restated Revolving
Credit Note as a document under seal, as of the date first written above, with
the intent to be legally bound hereby.
INFORMAX, INC.
By: /s/ Alex Titomirov
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Name: Alex Titomirov
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Title: CEO
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