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EXHIBIT 10.21
FINANCIAL INNOVATORS
[FINOVA LOGO]
FINOVA CAPITAL CORPORATION
00 XXXXXXXXX XXXXX
XXXXXXXXXX, XX 00000-0000
(000) 000-0000
MASTER LOAN AND SECURITY AGREEMENT
Master Loan and Security Agreement No. S7620, dated January 27, 2000
FINOVA CAPITAL CORPORATION ("we," "us" or "FINOVA"), having its principal place
of business at FINOVA Corporate Center, 0000 Xxxxx Xxxxxxxxxx Xxxx, Xxxxxxxxxx,
Xxxxxxx 00000-0000 is willing to make a loan (the "Loan") to TRITON NETWORK
SYSTEMS, INC. ("you" or "Borrower"), having its principal place of business at
0000 Xxxxxxxxx Xxxxxx, Xxxxxxx, XX 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 FIVE MILLION AND 00/100 Dollars
($5,000,000.00), 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 Equipment
hereinafter described and any and all replacement parts, additions, accessories
and accessions that you may add to the Equipment, as well as all replacements
and substitutions of the Equipment and all proceeds of the Equipment,
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 purchase price for equipment which is
satisfactory to us and which is described in the applicable Schedule
("Equipment"). If you have not yet paid for the Equipment (but the same is
otherwise satisfactory to us), the proceeds of the Advance will be paid by us
directly to the supplier (which you have chosen) to pay the purchase price of
the Equipment.
(C) NOTES. Your obligation to repay the Advance and to pay interest thereon
will be evidenced by separate secured promissory notes
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(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 Notes(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 any 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 three (3%) 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.
(L) PAYMENT DETAILS. You will make all Payments due under this Master
Agreement by 12:00 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;
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second, to any interest due; and third to the principal balance.
(N) PREPAYMENT. You may prepay the Loan as 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 lien 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
significant and large dollar amount items of 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 you name on the Uniform Commercial Code financing statements where
this is permitted by law.
(e) You will pay our reasonable costs and fees for documentation,
closing, administration and termination of this Master Agreement, the Notes
and Schedules. 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 Agreement or 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, attachments, levies and executions. 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 notify us at least 15 days before you change your state of
incorporation.
(i) 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.
(j) 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
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(a) See our Commitment Letter to you dated January 14, 2000 and
revised January 20, 2000 (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
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 you,
each enforceable in accordance with its terms.
(b) You are not a defendant under any material litigation and there
are no judgments outstanding against you.
(c) All of the Equipment has been delivered to you and installed at
the location set forth on the Schedule and you have accepted all of the
Equipment 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. Upon filing
of UCC-1 financing statements in all applicable filing offices, we will be
granted a first perfected lien on and security interest in all of the
Collateral.
(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 Equipment
is no more than the fair and usual price for this kind of Equipment,
taking into account any discounts, rebates and allowances that you or any
affiliate of yours may have been given for the Equipment.
(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 that you disclosed to us.
(h) You have complied with all "environmental laws" and will continue
to comply with all "environmental laws." No "hazardous substances" are
used, generated, treated, stored or disposed of by you or at your
properties except in
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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 could become friable, urea formaldehyde insulation,
polychlorinated biphenyls and radon gas.
(i) You have taken all action necessary to assure that there has been
no material adverse change to your business by reason of the advent of
the year 2000; this includes, without limitation, your representation
that all computer-based systems, embedded microchips and other
processing capabilities effectively recognize and process dates after
December 31, 1999.
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, and that it is serviced, repaired and overhauled
when this is necessary to keep the Collateral in good operating
condition, normal wear and tear excepted. 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 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
us) 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.
(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 without our prior written permission.
(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 first 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 shall take all action necessary 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
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processing capabilities effectively recognize and process all dates after
December 31, 1999. 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 year 2000 compatible.
(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) 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
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quarters in each fiscal year. These will be certified by the chief financial
officer.
(B) Annual balance sheet and statements of earnings and cash flow - within
90 days after the end of each fiscal year. These will be audited by independent
auditors from a national accounting firm ("Big Five"). Their audit report must
be unqualified.
All financial statements will be prepared according to generally accepted
accounting principles, consistently applied. All financial statements and SEC
filings that you provide us will be true and complete. They will not fail to
tell us anything that would make them not misleading.
(iii) At the same time you deliver the financial statements described in
paragraph 5(f)(ii)(A) and (B), 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.
6. DEFAULTS
(A) DEFAULTS. You are in default if any of the following happens:
(i) You do not pay us, when it is due, any Payment or other payment
that you owe us under this Master Agreement, any Schedule or any Note or that
you owe 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
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 and continues beyond any
applicable grace period provided therein unless the default is being contested
in good faith.
(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. However, you may, without violating the provisions of
this clause, consolidate with or merge with a corporation or other entity
organized under the laws of one of the states of the United States or the
District of Columbia (the surviving entity, a "successor", or sell (except by
means of a sale and leaseback arrangement) all or substantially all of its
business and assets to a transferee (the "transferee"), on the condition that
any successor or transferee either expressly or by operation of law assume in
writing all of your obligations pursuant to this Master Agreement, and that the
net tangible assets and the net worth (determined in accordance with generally
accepted accounting principles) of the successor or transferee after the
consolidation, merger or sale shall be at lease equal to your net tangible
assets, as the case may be, immediately prior to the consolidation, merger or
sale.
(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
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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, costs, expenses and charges, plus all prepayment premiums.
(iv) Require you at your expense to assemble the Collateral at a
location we occupy or you occupy within the United States of America.
(v) Exercise any remedy under the Uniform Commercial Code or otherwise
permitted by law including to the extent permitted retaking and removing the
Collateral. If required, we may disconnect and separate the Collateral from
your other property. 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
continental 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.
(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
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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, only when the condition is not part of
ordinary wear and tear.
(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 equal to the prepayment premium as set forth
in Exhibit B to the applicable Schedule.
(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 seven
(7%) 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. However, no new late fee will
be charged during any period that Default Interest is being charged.
(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 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
xxx 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
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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 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
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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.
LENDER: BORROWER:
FINOVA CAPITAL CORPORATION TRITON NETWORK SYSTEMS, INC.
00 XXXXXXXXX XXXXX 0000 XXXXXXXXX XXXXXX
XXXXXXXXXX, XX 00000-0000 XXXXXXX, XX 00000
BY: BY: /s/ XXX XXXXX
----------------------- -------------------------
PRINTED NAME: PRINTED NAME: XXX XXXXX
------------ ---------------
TITLE: TITLE: CFO
------------------- ----------------------
FAX NUMBER: (000) 000-0000 Taxpayer ID#
----------------
DATE ACCEPTED: _________, 2000 FAX NUMBER:
-----------------
DATED: February 25, 0000
XXXXX XX XXXXXXX
XXXXXX XX XXXXXX
I acknowledge that Xxx Xxxxx, who stated that he/she is CFO of the Borrower
named above, signed this Master Loan and Security Agreement in my presence
today: Feb. 25, 2000. 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/ Xxxxxxx X. Xxxxxxx
----------------------
Notary Public
[SEAL]
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