THE SALE,
ASSIGNMENT OR TRANSFER OF THE OBLIGATIONS EVIDENCED HEREBY IS
SUBJECT TO THE TERMS AND CONDITIONS OF A NON-DISTURBANCE AGREEMENT
DATED AS OF NOVEMBER 14, 2008 BY AND BETWEEN CODEXIS, INC., THE
MARK A. EMALFARB TRUST UNDER AGREEMENT DATED OCTOBER 1, 1987, AS
AMENDED, FRANCISCO TRUST UNDER AGREEMENT DATED FEBRUARY 28, 1996,
AS AMENDED, MARK A EMALFARB, AND DYADIC INTERNATIONAL (USA),
INC. EACH SUCCESSIVE HOLDER OF THIS NOTE OR ANY PORTION
THEREOF, AGREES (1) TO BE BOUND BY THE TERMS OF THE NON-DISTURBANCE
AGREEMENT AND (2) THAT IF ANY CONFLICT EXISTS BETWEEN THE TERMS OF
THIS NOTE OR ANY DOCUMENT OR SECURITY AGREEMENT EXECUTED IN
CONNECTION WITH THE DELIVERY OF THIS NOTE AND THE TERMS OF THE
NON-DISTURBANCE AGREEMENT, THE TERMS OF THE NON-DISTURBANCE
AGREEMENT SHALL GOVERN AND BE CONTROLLING.
Jupiter, Florida
Dated as of November 14,
2008
AMENDED & RESTATED
NOTE
FOR VALUE
RECEIVED, DYADIC INTERNATIONAL (USA), INC. (formerly known as
Dyadic International, Inc.), a Florida corporation (“Dyadic
Florida”) and DYADIC INTERNATIONAL, INC., a Delaware
corporation (“Dyadic Delaware” and together with Dyadic
Florida, the "Borrower"), jointly and severally promise to pay to
the order of the MARK A. EMALFARB TRUST, under agreement dated
October 1, 1987, as amended, (hereafter, together with any
subsequent holder hereof, called "Lender"), at its main office at
193 Spyglass Court, Jupiter, Florida 33477, or at such other place
as Lender may direct, on or before January 1, 2009, the scheduled
maturity date hereof, the unpaid principal balance of TWO MILLION
FOUR HUNDRED TWENTY FOUR THOUSAND TWO HUNDRED NINETY FOUR AND NO
/100 UNITED STATES DOLLARS ($2,424,294.00) (the "Loan"), plus
accrued interest.
This Amended
& Restated Note (“Amended Note”) modifies, amends
and is issued in replacement of that certain Revolving Note dated
as of May 29, 2003 as amended, by Dyadic Florida in favor of Lender
in the original aggregate principal amount of Three Million and
No/100 United States Dollars ($3,000,000.00) (the “Prior
Note”). This Amended Note shall not operate as a
novation, but only as a substitute for, and replacement of, the
Prior Note.
1.
PAYMENTS OF INTEREST AND PRINCIPAL AND FEES .
1.1 Interest
under Prior Note. Borrower acknowledges and agrees that
notwithstanding anything contained in the Prior Note to the
contrary, (i) from and after January 1, 2008, interest payable
under the Prior Note accrued at a rate equal to fourteen percent
(14%) per annum (the “Interest Rate”), and (ii)
Borrower paid quarterly interest payments to Lender from and after
January 1, 2008 at a rate equal to eight percent (8%) per annum
(the “Payment Rate”). Any such interest
which accrued but remained unpaid as of the date hereof pursuant to
the Prior Note, as
modified, or
interest which hereafter accrues under this Amended Note but is
unpaid pursuant to the terms of Section 1.2 hereof, is hereinafter
collectively referred to as the “Deferred
Interest”.
1.2 Interest
under Amended Note. From and after the date hereof,
interest shall accrue under this Amended Note at the Interest Rate
payable on all sums due under the Loan Documents (as hereinafter
defined), including, without limitation, on the principal balance
and Deferred Interest outstanding hereunder from time to
time. Notwithstanding the foregoing, Borrower agrees to
pay interest to Lender hereunder at the Payment Rate, which
interest payments shall be due on the last day of each
calendar quarter after the date hereof. All accrued and
unpaid interest, including, but not limited to Deferred Interest,
shall be paid to Lender on the Maturity Date (as hereinafter
defined).
1.3 Payment
of Principal. The entire outstanding principal balance
of the Loan and accrued interest thereon shall be due and payable
on January 1, 2009 (or on the first Business Day thereafter, if
said date is not a Business Day) ("Maturity Date"), unless earlier
due and payable by reason of the acceleration of the maturity of
this Amended Note. As used herein, the term "Business
Day" shall mean any day on which banking associations are required
to be open for business in Jupiter, Florida.
1.4 Scheduled
Payments. Contemporaneously with the execution of this
Amended Note, Dyadic Florida entered into a certain License
Agreement with Codexis, Inc. (“License
Agreement”). The terms of said License Agreement
provide for payment to Dyadic Florida of certain license issuance
fees (“License Fees”). Notwithstanding
anything contained herein to the contrary and in addition to the
payment of interest as required above, Borrower shall pay to Lender
the following amounts from such License Fees: (i) One
Million Dollars ($1,000,000) on or before the first to occur of
December 15, 2008, or the date upon which Dyadic Florida receives
or is scheduled to receive the first payment of such License Fees;
and (ii) fifty percent (50%) or such lesser percentage as Lender is
willing to accept of each additional payment received by Dyadic
Florida pursuant to such License Agreement. Such amount
shall first be applied to any accrued but unpaid interest existing
as of such date, next to any Deferred Interest, and next to the
payment of principal.
1.5 Calculation
of Interest. Interest on this Amended Note shall be
calculated on the basis of a 360-day year and the actual number of
days elapsed in any portion of a month for which interest maybe
due.
1.6 Fees. All
costs, expenses and charges incurred in connection with this Loan,
including but not limited to documenting, evidencing, securing,
filing, protecting or enforcing any of Lender's rights under the
Loan Documents (as hereinafter defined), unless otherwise agreed to
in writing by the Lender, shall be charged to, and be borne and
paid within three (3) Business Days (as hereinafter defined) of
Lender’s demand by Borrower, including but not limited to
Lender's attorneys' fees.
2.
REFERENCES TO COLLATERAL, FACILITY TYPE AND OTHER LOAN
DOCUMENTS.
2.1 Lender’s
Funding Obligation. Borrower acknowledges that the Loan
has been fully funded and that Lender shall have no obligation
whatsoever to, make any additional advances
hereunder or
otherwise to extend credit to Borrower. Any principal
amount of the Loan which is repaid prior to the Maturity Date may
not be reborrowed at any time.
2.2 Collateral. This
Amended Note is secured without limitation as provided in the
following and all related documents, in each case as amended,
modified, rene
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