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FINOVA
FINANCIAL INNOVATORS
FINOVA Capital Corporation
00 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000-0000
(000) 000-0000
MASTER LOAN AND SECURITY AGREEMENT
Master Loan and Security Agreement No. S7250 Dated July 23, 1999
FINOVA Capital Corporation ("we," "us" or "FINOVA"), having its principal place
of business at 0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000 is willing to
make a loan (the "Loan") to Aviron, Inc. ("you" or "Borrower"), having its
principal place of business at 000 X. Xxxxxxxx Xxxxxx, Xxxxxxxx Xxxx, Xxxxxxxxxx
00000 in one or more advances made from time to time (individually, an "Advance"
and collectively, the "Advances"), in the aggregate principal amount of up to
Seventeen Million Dollars ($17,000,000), under the terms and conditions
contained in this Master Loan and Security Agreement (this "Master Agreement").
The entire Loan will be "cross collateralized" and secured by the collateral
(the "Collateral") described in each schedule (individually, a "Schedule" and
collectively, "Schedules") which will be executed in connection with each
Advance and the related Note (as hereinafter defined). The Collateral includes
the FF&E hereinafter described and any and all replacement parts, additions,
accessories and accessions that you may add to the FF&E, as well as all
replacements and substitutions of the FF&E and all proceeds of the FF&E,
including, without limitation, insurance proceeds. We may treat any Schedule as
a separate loan and security agreement containing all of the provisions of this
Master Agreement.
1. THE CREDIT
(a) ADVANCES. Each Advance shall be evidenced by and the specific terms
applicable thereto set forth in a Note and related Schedule. All of
the Notes and Schedules, taken together, will evidence the entire
Loan. We will only make the Loan to you if all the conditions in this
Master Agreement have been met to our satisfaction. We will rely on
your representations and warranties contained in this Master
Agreement, in making the Loan. The terms of this Master Agreement will
each apply to the entire Loan.
(b) USE OF PROCEEDS. The proceeds of the Advances will be used solely to
reimburse you for your payment of the acquisition, construction and
installation of the machinery, equipment, fixtures, leasehold
improvements and other assets acquired, constructed and/or financed
with the proceeds of any Advance and the Loan, all of which shall be
satisfactory to us and which is described in the applicable Schedule
("FF&E"). If you have not yet paid for the FF&E (but the same is
otherwise satisfactory to us), the proceeds of the Advance will be
paid by us directly to the supplier or contractor (which you have
chosen) to pay the purchase price or cost of the FF&E.
(c) NOTES. Your obligation to repay the Advance and to pay interest
thereon will
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be evidenced by separate secured promissory notes (individually, a
"Note" and collectively, the "Notes"). Each Note will be dated the
date of the Schedule to which the Advance evidenced by the Note is
related. The related Schedule will be deemed to be part of the Note.
(d) TERM. The term ("Term") of each Schedule (and the related Advance)
begins upon the date that we make payment for the Collateral covered
under the Schedule (the "Closing Date"). The Term continues until you
fully perform all of your obligations under this Master Agreement,
each related Schedule and the related Note(s).
(e) LOAN ACCOUNT. We will keep a loan account on our books and records for
the Loan. We will record all payments of principal and interest in the
loan account. Unless the entries in the loan account are clearly in
error, the loan account will definitively indicate the outstanding
principal balance and accrued interest on the Loan.
(f) PAYMENTS. The scheduled payments of principal and interest (the
"Payments") are indicated on and due and payable in accordance with
the terms of the applicable Note and Schedule. The Payments are
payable in advance and otherwise on the dates and in the amounts set
forth on the applicable Schedule.
(g) FIRST PAYMENT AND SUBSEQUENT PAYMENTS. The first Payment under a Note
and Advance ("First Payment") is due at the beginning of its Term and
shall, at our option, either be deducted from the proceeds of the
Advance or paid directly to us by you. Subsequent Payments are due on
the thirtieth (30th) day of each successive month as set forth on the
Schedule until you pay to us in full all of the Payments and any other
fees, costs, charges and expenses that you owe us.
(h) INTEREST. Prior to Maturity of an Advance, you will pay us interest on
the Advance at the interest rate indicated in the applicable Schedule
(the "Interest Rate"). "Maturity" means the scheduled maturity or any
earlier date on which we accelerate the Loan. The Payment amount
indicated in the Schedule includes interest at the applicable Interest
Rate. Interest is calculated in advance using a year of 360 days with
twelve months of 30 days.
(i) INTERIM INTEREST PAYMENT. If an Advance is made on a day other than
the thirtieth (30th) or thirty-first (31st) day of a month, you will
also pay to us, together with the First Payment, interest on the
Advance at the applicable interest rate for the period from the date
the Advance is made until the twenty-ninth (29th) day of the month in
which the Advance is made. If an Advance is made on the thirty-first
(31st) day of a month, you will also pay to us, together with the
First Payment, interest on the Advance at the applicable interest rate
for the period from the date the Advance is made until the
twenty-ninth (29th) day of the following month. If an Advance is made
on the thirtieth (30th) day of a month, no interim interest will be
due.
(j) DEFAULT INTEREST RATE. After Maturity of the Loan or any Advance, you
will pay us interest thereon at a rate of four (4%) percent per year
above the applicable Interest Rate. This is referred to as the
"Default Rate."
(k) USURY. You and we intend to obey the law. If the Interest Rate charged
would exceed the maximum legal rate, you will only have to pay the
maximum legal rate. You do not have to pay any excess interest over
and above the maximum legal rate of interest. However, if it later
becomes legal for you to pay all or part of any excess interest, you
will then pay it to us upon our request.
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(l) PAYMENT DETAILS. You will make all Payments due under this Master
Agreement by 2:00 P.M., Connecticut time, on the day they are due. You
will make all Payments in US Dollars (US$) in immediately available
funds. We do not have to make or give "presentment, demand, protest or
notice" to get paid. You waive "presentment, demand, protest and
notice."
(m) APPLICATION OF PAYMENTS. Each Payment under this Master Agreement is
to be applied in the following order: first, to any fees, costs,
expenses and charges you may owe us; second, to any interest due; and
third to the principal balance.
(n) PREPAYMENT. You may not prepay the Loan or any Advance, in whole or in
part, unless this is specifically permitted by Exhibit B to the
applicable Schedule.
(o) NO SETOFFS. Your obligation to pay us all Payments is absolute and
unconditional. You are not excused from making the Payments, in full,
for any reason. You agree that you have no defense for failure to make
the Payments and you will not make any counterclaims or setoffs to
avoid making the Payments.
2. SECURITY INTEREST
(a) You grant us a first and only lien (subject only to Permitted Liens,
as hereinafter defined) on and security interest in the Collateral.
The Collateral secures the full and timely payment and performance of
all of your now existing or hereafter arising indebtedness,
liabilities and obligations to us, whether under this Master
Agreement, the Schedules, the Notes and any other agreement, loan or
lease that you may at any time or times have with us or otherwise
(collectively, the "Obligations"). You also grant us a security
interest in any additional collateral identified in any Schedule. Any
additional collateral is considered to be "Collateral" and it secures
all of the Obligations.
(b) If we request, you will put labels supplied by us stating "PROPERTY
SUBJECT TO A SECURITY INTEREST HELD BY FINOVA CAPITAL CORPORATION" on
the Collateral where they are clearly visible.
(c) You give us permission to add to this Master Agreement or any Schedule
the serial numbers and other information about the Collateral.
(d) You give us permission to file this Master Agreement or Uniform
Commercial Code financing statements, at your expense, in order to
perfect our security interest in the Collateral. You also give us
permission to sign your name on the Uniform Commercial Code financing
statements where this is permitted by law.
(e) You will pay our reasonable fees and costs for documentation, closing,
administration and termination of this Master Agreement, the Notes and
Schedules. Notwithstanding the foregoing, you will pay such fees and
expenses incurred in connection with the transaction, including the
fees and expenses of counsel to prepare, review and negotiate the
documentation and close the transaction, up to a maximum of $7,000.
Any fees and expenses in excess of $7,000 will be shared equally by
FINOVA and you. These fees include such items as reasonable attorneys
fees and expenses incurred in preparing this Master Agreement and all
agreements, instruments and documents executed in connection herewith,
and all amendments, supplements and waivers hereto and thereto, as
well as due diligence searches and fees for preparing and filing UCC
terminations and releases. You will also pay any filing, recording or
stamp fees or taxes resulting from filing this Master
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Agreement or a Uniform Commercial Code financing statements.
(f) At your expense, you will defend our first priority security interest
in the Collateral against, and keep the Collateral free of, any legal
process, liens, other security interests, attachments, levies and
executions, other than Permitted Liens. You will give us immediate
written notice of any legal process, liens, attachments, levies or
executions, and you will indemnify us against any loss that results to
us from these causes.
(g) You will notify us at least 15 days before you change the address of
your principal executive office or principal place of business. Your
principal executive office and principal place of business are set
forth at the beginning of this Master Agreement.
(h) You will promptly sign and return additional documents that we may
reasonably request in order to protect our first priority security
interest in the Collateral.
(i) Except as set forth in a Schedule, the Collateral is personal property
and will remain personal property. Except as set forth in a Schedule,
you will not incorporate it into real estate and will not do anything
that will cause the Collateral to become part of real estate or a
fixture.
3. CONDITIONS OF LENDING
(a) See our Commitment Letter to you dated May 6, 1999 (the "Commitment
Letter"), which you and we consider to be a part of this Master
Agreement. The terms and conditions of the Commitment Letter continue
following the making of the first Advance, including, without
limitation, conditions to the Loan. However, if there is a conflict
between the terms and conditions of this Master Agreement, any
Schedule or any Note and the terms and conditions of the Commitment
Letter, then you and we agree that the terms and conditions of this
Master Agreement, the Schedules and the Notes control over the
Commitment Letter terms and conditions.
(b) Before we disburse any proceeds of any Advance, we also require the
following:
(i) That no payment is past due to us under any other agreement,
loan or lease that you have with us.
(ii) That you are complying with all terms of this Master Agreement,
the Schedules and the Notes and there are no defaults hereunder
or thereunder.
(iii) That we have received all the documents we requested, including
the signed Schedule and Note.
(iv) That there has been no material adverse change in your financial
condition, business or operations, from the financial condition
that you have disclosed to us.
(v) All conditions contained in the Commitment Letter have been
satisfied.
4. REPRESENTATIONS AND WARRANTIES
You represent and warrant to us as follows:
(a) You are duly organized, existing and in good standing wherever you or
it are required by law to be so qualified. You have full power and
authority to execute, deliver and carry out the provisions of this
Master Agreement, the Schedules and the Notes and to borrow hereunder
and thereunder. This Master Agreement, the Schedules and the Notes are
validly executed and delivered by you and are the legal, valid and
binding obligations of
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you, each enforceable in accordance with its terms.
(b) Except as disclosed in a Schedule, you are not a defendant under any
material litigation and there are no judgments outstanding against
you.
(c) All of the FF&E has been delivered to you and installed at the
location set forth on the Schedule and you have accepted all of the
FF&E for all purposes of this Master Agreement.
(d) You have good title to all of your assets, including, without
limitation, the Collateral, and in the case of the Collateral, free
and clear of all security interests, liens and other encumbrances,
except for Permitted Liens. Upon filing of UCC-1 financing statements
in all applicable filing offices, we will be granted a first and only
(except for Permitted Liens) perfected lien on and security interest
in all of the Collateral. There are no other security interests, liens
or encumbrances covering the Collateral, except for Permitted Liens.
For purposes of this Master Agreement, "Permitted Liens" means (i)
liens for taxes, assessments and other governmental charges or levies
or the claims or demands of landlords, carriers, warehousemen,
mechanics, laborers, materialmen and other like persons arising by
operation of law in the ordinary course of business for sums which are
not yet due and payable; (ii) liens to secure the payment of sums
which are not yet due and payable incurred in the ordinary course of
business with respect to workers' compensation, unemployment insurance
or other social security benefits or obligations, public or statutory
obligations; (iii) liens in favor of FINOVA; and (iv) liens in favor
of customs and revenue authorities arising as a matter of law to
secure payments of customs duties in connection with the importation
of goods, which liens are limited to the extent that such assets are
in the possession of customs authorities..
(e) You have supplied us with information about the Collateral. You
promise to us that the amount of our Advance as to each item of FF&E
is no more than the fair and usual price for this kind of FF&E, taking
into account any discounts, rebates and allowances that you or any
affiliate of yours may have been given for the FF&E.
(f) The Collateral is located at the premises set forth on the Schedule.
(g) All financial information and other information that you have given us
is true and complete. You have not failed to tell us anything that
would make the financial information not misleading. There has been no
material adverse change in your financial condition, business or
operations, from the financial condition, business or operations that
you disclosed to us.
(h) You have complied with all "environmental laws" and will continue to
comply with all "environmental laws," except where noncompliance could
not reasonably be expected to have a material adverse effect on the
business, property or assets, condition (financial or otherwise) or
operations of you and your subsidiaries. No "hazardous substances" are
used, generated, treated, stored or disposed of by you or at your
properties except in compliance with all environmental laws.
"Environmental laws" mean all federal, state or local environmental
laws and regulations, including the following laws: CERCLA, RCRA,
Hazardous Materials Transport Act and The Federal Water Pollution
Control Act. "Hazardous substances" means all hazardous or toxic
wastes, materials or substances, as defined in the environmental laws,
as well as oil, flammable substances, asbestos that is or
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could become friable, urea formaldehyde insulation, polychlorinated
biphenyls and radon gas.
5. COVENANTS
You agree to do the following things (or not to do the following things if so
stated) until full payment of all amounts due to us under this Master Agreement,
the Schedules and the Notes:
(a) CARE, USE, LOCATION, TRANSFER, ENCUMBRANCE AND ALTERATION OF THE
COLLATERAL.
(i) You will make sure that the Collateral is maintained in good
operating condition (ordinary wear and tear excepted), and that
it is serviced, repaired and overhauled when this is necessary
to keep the Collateral in good operating condition. All
maintenance must be done according to the Supplier's or
Manufacturer's requirements or recommendations. All maintenance
must also comply with any legal or regulatory requirements.
(ii) You will maintain service logs for the Collateral, if
applicable, and permit us or our agents to inspect the
Collateral, the service logs and service reports. You give us
and our agents permission to make copies of the service logs and
service reports.
(iii) We will give you prior notice if we, or our agents, want to
inspect the Collateral or the service logs or service reports.
We may inspect it during regular business hours. If we find
during an inspection that you are not complying with this Master
Agreement or if you are otherwise in default under this Master
Agreement, you (and not we) will pay our travel, meals and
lodging costs, our salary costs, and our costs and fees and
those of our agents for reinspection. You will promptly cure any
problems with the Collateral that are discovered during our
inspections.
(iv) You will use the Collateral only for business purposes. You will
obey all legal and regulatory requirements in your use of the
Collateral, except where noncompliance could not reasonably be
expected to have a material adverse effect on the business,
property or assets, condition (financial or otherwise) or
operations of you and your subsidiaries.
(v) You will make all additions, modifications and improvements to
the Collateral that are required by law or government
regulation. Otherwise, you will not alter the Collateral without
our written permission. You will replace all worn, lost, stolen
or destroyed parts of the Collateral with replacement parts that
are as good or better than the original parts. The new parts
will become subject to our security interest upon replacement.
(vi) You will not remove the Collateral from the location indicated
in the Schedule, provided, however, that you may move the
Collateral presently located at such location to another
location located in the continental United States, but if and
only if (a) you shall have given us not less than thirty (30)
days prior written notice of the
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actual move and a list of all Collateral being so moved, (b) there is
then no default hereunder, (c) if the new location is leased, prior to
such move, we shall have received a Landlord Waiver executed by the
landlord of the new location, said Landlord Waiver to be in form and
substance satisfactory to us, (d) we shall have been granted a first
perfected lien and security interest on such moved Collateral and
there shall be no other liens covering such Collateral (other than
Permitted Liens), (e) you shall have executed and delivered to us all
such agreements, instruments and documents reasonably requested by us
in connection therewith, and (f) we shall have received satisfactory
results of all due diligence searches (including, without limitation,
environmental audits).
(vii) You have and will have good and merchantable title to all of
the Collateral.
(viii) You will not convey, assign, sell, mortgage, transfer,
encumber, pledge, hypothecate, grant a security interest in,
grant options with respect to, lease or otherwise dispose of
all or any part of any interest whatsoever in or to any or all
of the Collateral, or any interest therein.
(b) YEAR 2000 COMPLIANT.
You represent, warrant and agree to take all action necessary,
including, but not limited to, due inquiry and due diligence with
critical business partners to assure that there will be no material
adverse change to your business by reason of the advent of the year
2000, including, without limitation, that all computer-based systems,
embedded microchips and other processing capabilities effectively
recognize and process all dates before and after December 31, 1999
("Y2K Compliant"). At our request, you shall provide to us assurance
reasonably acceptable to us that your computer-based systems, embedded
microchips and other processing capabilities are Y2K Compliant.
(c) RISK OF LOSS.
(i) You have the complete risk of loss or damage to the Collateral.
Loss or damage to the Collateral will not relieve you of your
obligation to make the Payments.
(ii) If any Collateral is lost or damaged, you have two choices
although if you are in default under this Master Agreement, we
and not you will have the two options). The choices are:
(A) Repair or replace the damaged or lost Collateral so that,
once again, the Collateral is in good operating condition
and we have a perfected first priority security interest in
it.
(B) Pay us the present value (as of the date of payment) of the
remaining Payments. We will calculate the present value
using a discount rate of five (5%) percent per year. Once
you have paid us this amount and any other amount that you
may owe us, we will release our security interest in the
damaged or lost Collateral and you (or your insurer)
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may keep the Collateral for salvage purposes, on an "AS IS,
WHERE IS" basis and without any representation or warranty
whatsoever.
(d) INSURANCE.
(i) Until you have made all Payments to us under this Master
Agreement, the Schedules and the Notes and all Obligations have
been satisfied in full, you will keep the Collateral insured.
The amount of insurance, the coverage, and the insurance company
must be acceptable to us.
(ii) If you do not provide us with written evidence of insurance that
is acceptable to us, we may buy the insurance ourselves, at your
expense. You will promptly pay us the cost of this insurance. We
have no obligation to purchase any insurance. Any insurance that
we purchase will be our insurance, and not yours, and we may
insure the Collateral beyond the date of satisfaction of the
Obligations.
(iii) Insurance proceeds may be used to repair or replace damaged or
lost Collateral or to pay us the present value of the Payments,
as provided above.
(iv) You appoint us as your "attorney-in-fact" to make claims under
the insurance policies, to receive payments under the insurance
policies, and to endorse your name on all documents, checks or
drafts relating to insurance claims for Collateral.
(e) TAXES.
(i) You will pay all sales, use, excise, stamp, documentary and ad
valorum taxes, license, recording and registration fees,
assessments, fines, penalties and similar charges imposed on the
ownership, possession, use, lease or rental of the Collateral or
on the Loan.
(ii) You will pay all taxes (other than our federal or state net
income taxes) imposed on you or on us regarding the Payments.
(iii) You will reimburse us for any of these taxes that we pay or
advance.
(iv) You will file and pay for any personal property taxes on the
Collateral.
(f) INFORMATION SUPPLIED BY YOU.
(i) During the Term you will promptly provide us with copies of any
current, quarterly and annual reports and all proxy (or
information) statements you file with the Securities and
Exchange Commission ("SEC").
(ii) You will also provide us with the following financial
statements:
(A) Quarterly balance sheet and statements of earnings and cash
flow - within 45 days after the end of your first three
fiscal quarters in each fiscal year. These will be
certified by the chief financial officer.
(B) Annual balance sheet and statements of
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earnings and cash flow - within 90 days after the end of
each fiscal year. These will be audited by independent
auditors acceptable to us. Their audit report must be
unqualified.
All financial statements will be prepared according to generally
accepted accounting principles, consistently applied. The consolidated
balance sheets of the Borrower and its subsidiaries as of the date
thereof, and the statements of income and cash flows fairly present
the results of the operations of the Borrower and its subsidiaries and
their cash flows for the periods indicated. The SEC filings that you
provide us will not contain any untrue statement of a material fact or
omit to state a material fact necessary in order to make the
statements contained therein not misleading.
(iii) At the same time you deliver the financial statements described
in paragraph 5(f)(ii)(A), you will also provide us with a
certificate of your chief financial officer stating that no
default exists, or, if he cannot certify this because a default
does exist, he must specify in reasonable detail the nature of
the default.
(iv) The audited financial statements described in paragraph
5(f)(ii)(B), must be accompanied by a certificate of such
independent auditor stating that no default exists, or, if it
cannot certify this because a default does exist, it must
specify in reasonable detail the nature of the default.
(g) MINIMUM CASH COVENANT.
You shall at all times maintain a cash balance (cash and marketable
securities) of not less than $20,000,000. You shall deliver to us,
monthly, on the 10th day of each month, a copy of your bank and/or
securities statements or other documents satisfactory to us evidencing
such cash balance, which evidence shall be certified by your Chief
Financial Officer as being complete, true and accurate. If the cash
balance for any one month is less than $20,000,000, you shall cause to
have issued and delivered to us an irrevocable standby letter of
credit (in form and substance satisfactory to us and issued by a bank
satisfactory to us) in our favor as beneficiary, in an amount equal to
the then outstanding principal balance of the Loan and all accrued
interest thereon. Thereafter, it shall be an additional condition to
the making of each further Advance, that you shall have caused to be
issued and delivered to us an additional irrevocable standby letter of
credit (each in form and substance satisfactory to us and issued by a
bank satisfactory to us) in our favor as beneficiary, each in an
amount equal to the requested Advance. Each letter of credit shall
provide for automatic renewal annually for the entire Term of the Loan
and shall permit us to draw in full if any such letter of credit is
not so renewed or if a new letter of credit (satisfactory to us issued
by a bank satisfactory to us) is not substituted at least sixty (60)
days prior to the expiration of any such letter of credit. The failure
to provide any such letter of credit or if any such letter of credit
shall at any time cease to be in full force and effect, shall be a
default under this Master Agreement.
6. DEFAULTS
(a) DEFAULTS. You are in default if any of the
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following happens:
(i) You do not pay us, within five (5) business days of the date
when it is due, any Payment or other amount that you owe us
under this Master Agreement, any Schedule or any Note or that
you owe us under any other agreement, loan, lease or other
financial arrangement that you have with us.
(ii) Any of the financial information that you give us is not true
and complete, or you fail to tell us anything that would make
the financial information not misleading.
(iii) You do something you are not permitted to do, or you fail to
do, within fifteen (15) days of the date required for
performance, anything that is required of you, under this
Master Agreement, any Schedule or any other lease, loan or
other financial arrangement that you have with us.
(iv) An event of default occurs for any other lease, loan or
obligation of yours that exceeds $100,000 in the aggregate.
(v) You file bankruptcy, or involuntary bankruptcy is filed against
you and such involuntary bankruptcy is not dismissed within
sixty (60) days.
(vi) You are subject to any other insolvency proceeding other than
bankruptcy (for example, a receivership action or an assignment
for the benefit of creditors) and such proceeding that is
involuntary is not dismissed within sixty (60) days.
(vii) Without our permission, you sell all or a substantial part of
your assets, merge or consolidate, or a majority of your voting
stock or interests is transferred.
(viii) There is a material adverse change in your financial condition,
business or operations.
(b) REMEDIES, DEFAULT INTEREST, LATE FEES. If you are in default we may
exercise one or more of our "remedies." Each of our remedies is
independent. We may exercise any of our remedies, all of our remedies
or none of our remedies. We may exercise them in any order we choose.
Our exercise of any remedy will not prevent us from exercising any
other remedy or be an "election of remedies." If we do not exercise a
remedy, or if we delay in exercising a remedy, this does not mean that
we are forgiving your default or that we are giving up our right to
exercise the remedy. Our remedies allow us to do one or more of the
following:
(i) "Accelerate" the Loan balance under any or all Notes. This
means that we may require you to immediately pay us the entire
outstanding principal balance of the entire Loan.
(ii) Require you to immediately pay us all amounts that you are
required to pay us for the entire Term of any other agreements,
loans, leases or financial arrangements that you have with us.
(iii) Xxx you for the entire outstanding principal balance of the
Loan and all other amounts you owe us (including, without
limitation, all accrued and unpaid interest, including interest
at the Default Rate), outstanding fees,
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costs, expenses and charges, plus all prepayment premiums.
(iv) Require you at your expense to assemble the Collateral at a
location we request in the United States of America.
(v) Remove and repossess the Collateral from where it is located,
without demand or notice, or make the Collateral inoperable. We
have your permission to remove any physical obstructions to
removal of the Collateral. We may also disconnect and separate
all Collateral from other property. No court order, court
hearing or "legal process" will be required for us to repossess
the Collateral. You will not be entitled to any damages
resulting from removal or repossession of the Collateral. We
may use, ship, store, repair or lease any Collateral that we
repossess. We may sell any repossessed Collateral at private or
public sale. You give us permission to show the Collateral to
buyers at your location free of charge during normal business
hours. If we do this, we do not have to remove the Collateral
from your location. If we repossess the Collateral and sell it,
we will give you credit for the net sale price, after
subtracting our costs of repossessing and selling the
Collateral. If we rent the Collateral to somebody else, we will
give you credit for the net rent received, after subtracting
our costs of repossessing and renting the Collateral, but the
credit will be discounted to present value using a discount
rate equal to the Default Rate. The credit will be applied
against what you owe us under this Master Agreement, the
Schedules, the Notes and any other agreements, loans, leases
and other financial arrangements that you have with us. If the
credit exceeds the amount you owe under this Master Agreement,
the Schedule, the Notes and any other agreements, loans, leases
or financial arrangements that you have with us, we will refund
the amount of the excess to you.
(vi) We will have all of our rights and remedies under this Master
Agreement, the Notes, the Schedules and all agreements,
instruments and documents executed in connection herewith and
therewith and all of our rights and remedies under applicable
law, whether as a secured party or otherwise.
(vii) Return conditions:
(A) Following a default, at our request you will return the
Collateral, freight and insurance prepaid by you, to us at
a location we request in the United States of America. It
will be returned in good operating condition, as required
by Section 5 above. The Collateral will not be subject to
any liens when it is returned.
(B) You will pack or crate the Collateral for shipping in the
original containers, or comparable ones. You will do this
carefully and follow all recommendations of the Supplier
and the Manufacturer as to packing or crating.
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(C) You will also return to us the plans, specifications,
operating manuals, software, documentation, discs,
warranties and other documents furnished by the
Manufacturer or Supplier. You will also return to us all
service logs and service reports, as well as all written
materials that you may have concerning the maintenance and
operation of the Collateral.
(D) At our request, you will provide us with up to 60 days
free storage of the Collateral at your location, and will
let us (or our agent) have access to the Collateral in
order to inspect it, display it to others for purchase and
sell it.
(E) You will pay us what it costs us to repair the Collateral
if you do not return it in the required condition.
(viii) You will also pay us the following:
(A) All our expenses of enforcing our remedies. This includes
all our expenses to repossess, store, ship, repair and
sell the Collateral.
(B) Our reasonable attorney's fees and expenses.
(C) Default interest on everything you owe us from the date of
your default to the date on which we are paid in full at
the Default Rate.
(D) A premium in the amount of five percent (5%) of the
outstanding principal balance of the Loan.
(ix) You will pay us a late fee whenever you pay any amount that you
owe us more than ten (10) days after it is due. You will pay
the late fee within one month after the late Payment was
originally due. The late fee will be ten (10%) percent of the
late Payment. If this exceeds the highest legal amount we can
charge you, you will only be required to pay the highest legal
amount. The late fee is intended to reimburse us for our
collection costs that are caused by late Payment. It is charged
in addition to all other amounts you are required to pay us,
including Default Interest.
(x) You realize that the damages we could suffer as a result of
your default are very uncertain. This is why we have agreed
with you in advance on the Default Rate to be used in
calculating the payments you will owe us if you default. You
agree that, for these reasons, the payments you will owe us if
you default are "agreed" or "liquidated" damages. You
understand that these payments are not "penalties" or
"forfeitures."
7. PERFORMING YOUR OBLIGATIONS IF YOU DO NOT
If you do not perform one or more of your obligations under this Master
Agreement or a Schedule or Note, we may perform it for you. We will notify you
in writing at least ten (10) days
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before we do this. We do not have to perform any of your obligations for you. If
we do choose to perform them, you will pay us all of our expenses to perform the
obligations. You will also reimburse us for any money that we advance to perform
your obligations, together with interest at the Default Rate on that amount.
These will be additional "Payments" that you will owe us and you will pay them
at the same time that your next Payment is due.
8. INDEMNITY
(a) You will indemnify us, defend us and hold us harmless from and against
any and all claims, expenses and attorney's fees concerning or arising
from the Collateral, this Master Agreement, any Schedule or Note, or
your breach of any representation, warranty or covenant. It includes,
without limitation, any claims, losses or charges concerning, arising
out of or in connection with the manufacture, selection, delivery,
possession, use, operation or return of the Collateral and any claims,
losses or damages concerning, arising out of or in connection with
this Master Agreement, any Schedule or the Notes.
(b) This obligation of yours to indemnify us continues even after the Term
is over.
9. MISCELLANEOUS
(a) ASSIGNMENT.
WE MAY ASSIGN OR GRANT A SECURITY INTEREST IN THIS MASTER AGREEMENT,
ANY SCHEDULE, ANY NOTE OR ANY PAYMENTS WITHOUT YOUR PERMISSION. THE
PERSON TO WHOM WE ASSIGN IS CALLED THE "ASSIGNEE." THE ASSIGNEE WILL
NOT HAVE ANY OF OUR OBLIGATIONS UNDER THIS MASTER AGREEMENT. YOU WILL
NOT BE ABLE TO RAISE ANY DEFENSE, COUNTERCLAIM OR OFFSET AGAINST THE
ASSIGNEE. NOTWITHSTANDING ANY SUCH ASSIGNMENT OR GRANTING OF A
SECURITY INTEREST, WE WILL CONTINUE TO BE LIABLE FOR ALL OF OUR
OBLIGATIONS UNDER THIS MASTER AGREEMENT.
UNLESS YOU RECEIVE OUR WRITTEN PERMISSION, YOU MAY NOT ASSIGN OR
TRANSFER YOUR RIGHTS UNDER THIS MASTER AGREEMENT OR ANY SCHEDULE. YOU
ALSO ARE NOT ALLOWED TO LEASE OR RENT THE COLLATERAL OR LET ANYBODY
ELSE USE IT UNLESS WE GIVE YOU OUR WRITTEN PERMISSION.
(b) ACCEPTANCE BY FINOVA, GOVERNING LAW, JURISDICTION, VENUE, SERVICE OF
PROCESS, WAIVER OF JURY TRIAL.
THIS MASTER AGREEMENT WILL ONLY BE BINDING WHEN WE HAVE ACCEPTED IT IN
WRITING.
THIS MASTER AGREEMENT IS GOVERNED BY THE SUBSTANTIVE LAWS OF THE STATE
OF ARIZONA (NOT INCLUDING THE "CHOICE OF LAW" DOCTRINE), THE STATE IN
WHICH OUR OFFICE IS LOCATED IN WHICH FINAL APPROVAL OF THE TERMS OR
CONDITIONS OF THIS MASTER AGREEMENT OCCURRED AND FROM WHICH
DISBURSEMENT OF THE LOAN PROCEEDS WILL BE ORDERED. HOWEVER, IF THIS
MASTER AGREEMENT IS UNENFORCEABLE UNDER ARIZONA LAW, IT WILL INSTEAD
BE GOVERNED BY THE LAWS OF THE STATE IN WHICH THE COLLATERAL IS
LOCATED.
YOU MAY ONLY XXX US IN A FEDERAL OR STATE COURT THAT IS LOCATED IN
MARICOPA COUNTY, ARIZONA. THIS APPLIES TO ALL LAWSUITS UNDER ALL LEGAL
THEORIES, INCLUDING CONTRACT, TORT AND STRICT LIABILITY. YOU CONSENT
TO THE
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PERSONAL JURISDICTION OF THESE ARIZONA COURTS. YOU WILL NOT CLAIM THAT
MARICOPA COUNTY, ARIZONA, IS AN "INCONVENIENT FORUM" OR THAT IT IS NOT
A PROPER "VENUE."
WE MAY XXX YOU IN ANY COURT THAT HAS JURISDICTION. WE MAY SERVE YOU WITH
PROCESS IN A LAWSUIT BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO YOUR
ADDRESS INDICATED AFTER YOUR SIGNATURE BELOW.
YOU AND WE EACH WAIVE ANY RIGHT YOU OR WE MAY HAVE TO A JURY TRIAL IN ANY
LAWSUIT BETWEEN YOU AND US.
(c) NOTICES. Your address for notices is your address set forth below your
name on the signature page of this Master Agreement. We may give you
written notice in person, by mail, by overnight delivery service, or
by fax. Mail notice will be effective three (3) days after we deposit
it with the U.S. Postal Service. Overnight delivery notice requires a
receipt and tracking number. Fax notice requires a receipt from the
sending machine showing that it has been sent to your fax number and
received.
Our address for notices is our address set forth below our name on the
signature page of this Master Agreement, with attention: Director,
Contract Administration. You will also give copies of all notices to
us at our principal place of business at the address set forth in the
opening paragraph of this Master Agreement, with attention to Vice
President, Law Department. You may give us notice the same way that we
may give you notice.
(d) GENERAL
This Master Agreement benefits our successors and assigns. This Master
Agreement benefits only those successors and assigns of yours that we
have approved in writing.
This Master Agreement binds your successors and assigns. This Master
Agreement binds only those successors and assigns of ours that clearly
assume our obligations in writing.
TIME IS OF THE ESSENCE OF THIS MASTER AGREEMENT
This Master Agreement, all of the Schedules and the Notes and the
Commitment Letter are together the entire agreement between you and us
concerning the Collateral.
Only an employee of FINOVA who is authorized by corporate resolution
or policy may modify or amend this Master Agreement or any Schedule or
Note on our behalf, and this must be in writing. Only he or she may
give up any of our rights, and this must be in writing. If more than
one person is the Borrower under this Master Agreement, then each of
you is jointly and severally liable for your obligations under this
Master Agreement and all Schedules and Notes.
This Master Agreement is only for your benefit and for our benefit, as
well as our successors and assigns. It is not intended to benefit any
other person.
If any provision in this Master Agreement is unenforceable, then that
provision must be deleted. Only unenforceable provisions are to be
deleted. The rest of this Master Agreement will remain as written.
We may make press releases and publish a tombstone announcing this
transaction and its total amount. You may publicize this transaction
with our prior written consent.
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LENDER: BORROWER:
FINOVA CAPITAL CORPORATION AVIRON, INC.
00 XXXXXXXXX XXXXX 000 X. XXXXXXXX XXXXXX
XXXXXXXXXX, XX 00000-0000 XXXXXXXX XXXX, XX 00000
BY: /s/ Xxxxx X. Xxxxxxxxx BY: /s/ Xxxx Xxxxxxx
----------------------------- ----------------------------
PRINTED NAME: Xxxxx X. Xxxxxxxxx PRINTED NAME: Xxxx Xxxxxxx
------------------- ------------------
TITLE: Director-Contract Administration TITLE: Senior Vice President and CFO
-------------------------- -------------------------
FAX NUMBER: (000) 000-0000 Taxpayer ID#00-0000000
-------------------
DATE ACCEPTED: July 23, 1999 FAX NUMBER: 000-000-0000
------------------ --------------------
DATED: June 22, 1999
-------------------------
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XXXXX XX XXXXXXXXXX
XXXXXX XX XXXXX XXXXX
I acknowledge that Xxxx Xxxxxxx, who stated that he is Senior Vice
President & CFO of the Borrower named above, signed this Master Loan and
Security Agreement in my presence today: June 22, 1999. He/She acknowledged to
me that his/her signature on this Master Loan and Security Agreement was
authorized by a valid resolution or other valid authorization from Borrower's
board of directors or other governing body.
/s/ Xxxx X. XxXxxx
---------------------------
Notary Public
[SEAL]
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