EXHIBIT 10.9
FINANCIAL INNOVATORS
[FINOVA LOGO]
FINOVA Capital Corporation
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▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
MASTER LOAN AND SECURITY AGREEMENT
Master Loan and Security Agreement No. S7680, dated March 6, 2000
FINOVA Capital Corporation ("we," "us" or "FINOVA"), having its principal place
of business at FINOVA Corporate Center, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ is willing to make a loan (the "Loan") to Illumina, Inc.
("you" or "Borrower"), having its principal place of business at ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇, 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 Three Million Dollars ($3,000,000.00),
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 (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.
(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; second, to any interest due; and third to the principal
balance.
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(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 and only 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 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 fees and costs 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, other security interests, 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
(a) See our Commitment Letter to you dated February 28, 2000 (the
"Commitment Letter"),
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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, or that of any guarantor, 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 and each guarantor are duly organized, existing and in good
standing wherever you or it are required by law to be so qualified. You and each
guarantor 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 the guarantors and are the legal,
valid and binding obligations of you and the guarantors, each enforceable in
accordance with its terms.
(b) Neither you nor any guarantor is 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 and only perfected lien on and security interest in all of the Collateral.
There are no other security interests, liens or encumbrances covering 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, or the financial
condition of any guarantor, from the financial condition that you disclosed to
us.
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(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
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. 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 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.
(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.
(viiii) Borrower shall at all times have and maintain cash, cash
equivalents and short term investments in bank or securities accounts in an
aggregate amount of not less than 200% of the then outstanding principal balance
of the Loan.
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Borrower shall deliver to Lender such financial and other information and in
such form as Lender shall from time to time request in order to evidence
compliance with this section.
(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 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.
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(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 may be internally prepared in accordance with GAAP will be
certified by the Chief Financial Officer and accompanied by a Compliance
Certificate.
(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 and prepared
in accordance with GAAP accounting principles 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. 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), 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.
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 $50,000 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, which shall not be unreasonably
withheld provided that the transferee surviving or consolidated entity, as the
case may be (1) assumes your obligations in writing satisfactory to us and (2)
has a tangible net worth determined in accordance with the GAAP with no less
than what your tangible net worth was immediately before the acquisition, you
sell all or a substantial part of its assets, merge or consolidate, or a
majority of your voting stock or interests are transferred.
(viii) There is a material adverse change in your financial condition,
business or
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operations, or that of any guarantor as noted in Section 5 subparagraph (viiii).
(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) ▇▇▇ 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 request in 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
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
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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 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.
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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 ▇▇▇ 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 ▇▇▇ 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.
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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.
LENDER: BORROWER:
FINOVA CAPITAL CORPORATION ILLUMINA, INC.
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
BY:____________________________ BY:_________________________
PRINTED NAME:__________________ PRINTED NAME:_______________
TITLE:_________________________ TITLE:______________________
FAX NUMBER: (▇▇▇) ▇▇▇-▇▇▇▇ Taxpayer ID#________________
DATE ACCEPTED:____________, 2000 FAX NUMBER:_________________
DATED:_________________, 2000
STATE OF _______________________
COUNTY OF ______________________
I acknowledge that ___________________, who stated that he/she is
_______________ of the Borrower named above, signed this Master Loan and
Security Agreement in my presence today: _______________. 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.
_________________________________
Notary Public
[SEAL]
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