Exhibit 10.34
From time to time, BioMarin Pharmaceutical has entered into equipment-backed
loans with General Electric Capital Corporation. Each borrowing with General
Electric Capital Corporation is evidenced by a loan package that includes a
promissory note and collateral schedule. Pursuant to Item 601 of Regulation S-K,
the following is a complete set of the documents related to a borrowing from
General Electric Capital Corporation. Except as set forth on the following
schedule, the documents associated with each borrowing are substantially
identical in all material respects to the documents filed herewith.
Re-payment Original
Term Principal Monthly Interest
Date Start Date (months) Amount Payment Rate Start Date Collateral
12/15/01 1/1/2002 36 3,531,450.00 111,629.00 9.11% 1/1/2002 Various pieces of specifically enumerated
equipment.
12/15/01 1/1/2002 42 692,706.00 19,236.00 9.30% 1/1/2002 Various pieces of specifically enumerated
equipment.
12/15/01 1/1/2002 36 1,280,660.00 40,482.00 9.11% 1/1/2002 Various pieces of specifically enumerated
equipment.
5/20/02 6/1/2002 36 894,398.95 28,358.72 9.33% 6/1/2002 Various pieces of specifically enumerated
equipment.
9/30/02 10/1/2002 36 1,320,126.56 41,156.84 8.11% 10/1/2002 Various pieces of specifically enumerated
equipment.
12/30/02 1/1/2003 36 393,942.35 12,242.53 8.06% 1/1/2003 Various pieces of specifically enumerated
equipment.
BioMarin will file copies of each omitted document at the request of the
Commission at any time.
MASTER SECURITY AGREEMENT
dated as of December 15, 2001 ("Agreement")
THIS AGREEMENT is between General Electric Capital Corporation (together
with its successors and assigns, if any. "Secured Party"), and BioMarin
Pharmaceutical Inc. ("Debtor"). Secured Party has an office at 5150 El Camino
Real, Suite B-21, Los Altos, CA 94022. Debtor is a corporation organized and
existing under the laws of the State of Delaware. Debtor's mailing address and
chief place of business is 371 Bel Marin Keys Boulevard, Suite 210, Novato, CA
94949.
1. CREATION OF SECURITY INTEREST.
Debtor grants to Secured Party, its successors and assigns, a security
interest in and against all property listed on any collateral schedule now or in
the future annexed to or made a part of this Agreement ("Collateral Schedule"),
and in and against all additions, attachments, accessories and accessions to
such property, all substitutions, replacements or exchanges therefor, and all
insurance and/or other proceeds thereof (all such property is individually and
collectively called the "Collateral"). This security interest is given to secure
the payment and performance of all debts, obligations and liabilities of any
kind whatsoever of Debtor to Secured Party, now existing or arising in the
future, including but not limited to the payment and performance of certain
Promissory Notes from time to time identified on any Collateral Schedule
(collectively "Notes" and each a "Note"), and any renewals, extensions and
modifications of such debts, obligations and liabilities (such Notes, debts,
obligations and liabilities are called the "Indebtedness"). Unless otherwise
provided by applicable law, notwithstanding anything to the contrary contained
in this Agreement, to the extent that Secured Party asserts a purchase money
security interest in any items of Collateral ("PMSI Collateral"); (i) the PMSI
Collateral shall secure only that portion of the Indebtedness which has been
advanced by Secured Party to enable Debtor to purchase, or acquire rights in or
the use of such PMSI Collateral (the "PMSI Indebtedness"), and (ii) no other
Collateral shall secure the PMSI Indebtedness.
2. REPRESENTATIONS, WARRANTIES AND COVENANTS OF DEBTOR.
Debtor represents, warrants and covenants as of the date of this Agreement
and as of the date of each Collateral Schedule that:
(a) Debtor's exact legal name is as set forth in the preamble of this
Agreement and Debtor is, and will remain, duly organized, existing and in good
standing under the laws of the State set forth in the preamble of this
Agreement, has its chief executive offices at the location specified in the
preamble, and is, and will remain, duly qualified and licensed in every
jurisdiction wherever necessary to carry on its business operations;
(b) Debtor has adequate power and capacity to enter into, and to perform
its obligations under this Agreement, each Note and any other documents
evidencing, or given in connection with, any of the Indebtedness (all of the
foregoing are called the "Debt Documents");
(c) This Agreement and the other Debt Documents have been duly authorized,
executed and delivered by Debtor and constitute legal, valid and binding
agreements enforceable in accordance with their terms, except to the extent that
the enforcement of remedies may be limited under applicable bankruptcy and
insolvency laws;
(d) No approval, consent or withholding of objections is required from any
governmental authority of instrumentality with respect to the entry into, or
performance by Debtor or any of the Debt Documents, except any already obtained;
(e) The entry into, and performance by, Debtor of the Debt Documents will
not (i) violate any of the organizational documents of Debtor or any judgment,
order, law or regulation applicable to Debtor, or (ii) result in any breach of
or constitute a default under any contract to which Debtor is a party, or result
in the creation of any lien, claim or encumbrance on any of Debtor's property
(except for liens in favor of Secured Party) pursuant to any indenture,
mortgage, deed of trust, bank loan, credit agreement or other agreement or
instrument to which Debtor is a party;
(f) There are no suits or proceedings pending in court or before any
commission, board or other administrative agency against or affecting Debtor
which could, in the aggregate, have a material adverse effect on Debtor, its
business or operations, or its ability to perform its obligations under the Debt
Documents, nor does Debtor have reason to believe that any such suits or
proceedings are threatened;
(g) All financial statements delivered to Secured Party in connection with
the Indebtedness have been prepared in accordance with generally accepted
accounting principles, and since the date of the most recent financial
statement, there has been no material adverse change in Debtors financial
condition;
(h) The Collateral is not, and will not be, used by Debtor for personal,
family or household purposes;
(i) The Collateral is, and will remain, in good condition and repair and
Debtor will not be negligent in its care and use;
(j) Debtor is, and will remain, the sole and lawful owner, and in
possession of, the Collateral, and has the sole right and lawful authority to
grant the security interest described in this Agreement; and
(k) The Collateral is, and will remain, free and clear of all liens, claims
and encumbrances of any kind whatsoever, except for (i) liens in favor of
Secured Party, (ii) liens for taxes not yet due or for taxes being contested in
good faith and which do not involve, in the judgment of Secured Party, any risk
of the sale, forfeiture or loss of any of the Collateral, and (iii) inchoate
materialmen's, mechanic's, repairmen's and similar liens arising by operation of
law in the normal course of business for amounts which are not delinquent (all
of such liens are called "Permitted Liens").
3. COLLATERAL.
(a) Until the declaration of any default, Debtor shall remain in possession
of the Collateral; except that Secured Party shall have the right to possess (i)
any chattel paper or instrument that constitutes a part of the Collateral, and
(ii) any other Collateral in which Secured Party's security interest may be
perfected only by possession. Secured Party may inspect any of the Collateral
during normal business hours after giving Debtor reasonable prior notice. If
Secured Party asks, Debtor will promptly notify Secured Party in writing of the
location of any Collateral.
(b) Debtor shall (i) use the Collateral only in its trade or business, (ii)
maintain all of the Collateral in good operating order and repair, normal wear
and tear excepted, (iii) use and maintain the Collateral only in compliance
with manufacturers recommendations and all applicable laws, and (iv) keep all of
the Collateral free and clear of all liens, claims and encumbrances (except for
Permitted Liens).
(c) Secured Party does not authorize and Debtor agrees it shall not (i)
part with possession of any of the Collateral (except to Secured Party or for
maintenance and repair), (ii) remove any of the Collateral from the continental
United States, or (iii) sell, rent, lease, mortgage, grant a security interest
in or otherwise transfer or encumber (except for Permitted Liens) any of the
Collateral.
(d) Debtor shall pay promptly when due all taxes, license fees, assessments
and public and private charges levied or assessed on any of the Collateral, on
its use, or on this Agreement or any of the other Debt Documents. At its option,
Secured Party may discharge taxes, liens, security interests or other
encumbrances at any time levied or placed on the Collateral and may pay for the
maintenance, insurance and preservation of the Collateral and effect compliance
with the terms of this Agreement or any of the other Debt Documents. Debtor
agrees to reimburse Secured Party, on demand, all costs and expenses incurred by
Secured Party in connection with such payment or performance and agrees that
such reimbursement obligation shall constitute Indebtedness.
(e) Debtor shall, at all times, keep accurate and complete records of the
Collateral, and Secured Party shall have the right to inspect and make copies of
all of Debtor's books and records relating to the Collateral during normal
business hours, after giving Debtor reasonable prior notice.
(f) Debtor agrees and acknowledges that any third person who may at any
time possess all or any portion of the Collateral shall be deemed to hold, and
shall hold, the Collateral as the agent of, and as pledge holder for, Secured
Party. Secured Party may at any time give notice to any third person described
in the preceding sentence that such third person is holding the Collateral as
the agent of, and as pledge holder for, the Secured Party.
4. INSURANCE.
(a) Debtor shall at all times bear the entire risk of any loss, theft,
damage to, or destruction of, any of the Collateral from any cause whatsoever.
(b) Debtor agrees to keep the Collateral insured against loss or damage by
fire and extended coverage perils, theft, burglary, and for any or all
Collateral which are vehicles, for risk of loss by collision, and if requested
by Secured Party, against such other risks as Secured Party may reasonably
require. The insurance coverage shall be in an amount no less than the full
replacement value of the Collateral, and deductible amounts, insurers and
policies shall be acceptable to Secured Party. Debtor shall deliver to Secured
Party policies or certificates of insurance evidencing such coverage. Each
policy shall name Secured Party as a loss payee, shall provide for coverage to
Secured Party regardless of the breach by Debtor of any warranty or
representation made therein, shall not be subject to co-insurance, and shall
provide that coverage may not be cancelled or altered by the insurer except upon
thirty (30) days prior written notice to Secured Party. Debtor appoints Secured
Party as its attorney-in-fact to make proof of loss, claim for insurance and
adjustments with insurers, and to receive payment of and execute or endorse all
documents, checks or drafts in connection with insurance payments. Secured Party
shall not act as Debtors attorney-in-fact unless Debtor is in default. Proceeds
of insurance shall be applied, at the option of Secured Party, to repair or
replace the Collateral or to reduce any of the Indebtedness.
5. REPORTS.
(a) Debtor shall promptly notify Secured Party of (i) any change in the
name of Debtor, (ii) any change in the state of its incorporation or
registration, (iii) any relocation of its chief executive offices, (iv) any
relocation of any of the Collateral, (v) any of the Collateral being lost,
stolen, missing, destroyed, materially damaged or worn out, or (v) any lien,
claim or encumbrance other than Permitted Liens attaching to or being made
against any of the Collateral.
(b) Debtor will deliver to Secured Party Debtors complete financial
statements, certified by a recognized firm of certified public accountants,
within ninety (90) days of the close of each fiscal year of Debtor. If Secured
Party requests, Debtor will deliver to Secured Party copies of Debtors quarterly
financial reports certified by Debtors chief financial officer, within ninety
(90) days after the close of each of Debtors fiscal quarter. Debtor will deliver
to Secured Party copies of all Forms 10-K and 10-Q, if any, within 30 days after
the dates on which they are filed with the Securities and Exchange Commission.
6. FURTHER ASSURANCES.
(a) Debtor shall, upon request of Secured Party, furnish to Secured Party
such further information, execute and deliver to Secured Party such documents
and instruments (including, without limitation, Uniform Commercial Code
financing statements) and shall do such other acts and things as Secured Party
may at any time reasonably request relating to the perfection or protection of
the security interest created by this Agreement or for the purpose of carrying
out the intent of this Agreement. Without limiting the foregoing, Debtor shall
cooperate and do all acts deemed necessary or advisable by Secured Party to
continue in Secured Party a perfected first security interest in the Collateral,
and shall obtain and furnish to Secured Party any subordinations, releases,
landlord waivers, lessor waivers, mortgagee waivers or control agreements, and
similar documents as may be from time to time requested by, and in form and
substance satisfactory to, Secured Party.
(b) Debtor authorizes Secured Party to file a financing statement and
amendments thereto describing the Collateral and containing any other
information required by the applicable Uniform Commercial Code. Debtor
irrevocably grants to Secured Party the power to sign Debtor's name and
generally to act on behalf of Debtor to execute and file applications for title,
transfers of title, financing statements, notices of lien and other documents
pertaining to any or all of the Collateral; this power is coupled with Secured
Party's interest in the Collateral. Debtor shall, if any certificate of title be
required or permitted by law for any of the Collateral, obtain and promptly
deliver to Secured Party such cerficate showing the lien of this Agreement with
respect to the Collateral. Debtor ratifies its prior authorization for Secured
Party to file financing statements and amendments thereto describing the
Collateral and containing any other information required by the Uniform
Commercial Code if filed prior to the date hereof.
(c) Debtor shall indemnify and defend the Secured Party, its successors and
assigns, and their respective directors, officers and employees, from and
against all claims, actions and suits (including, without limitation, related
attorneys' fees) of any kind whatsoever arising, directly or indirectly, in
connection with any of the Collateral.
7. DEFAULT AND REMEDIES.
(a) Debtor shall be in default under this Agreement and each of the other
Debt Documents if:
(i) Debtor breaches its obligation to pay when due any installment or
other amount due or coming due under any of the Debt Documents;
(ii) Debtor, without the prior written consent of Secured Party,
attempts to or does sell, rent, lease, mortgage, grant a security interest in,
or otherwise transfer or encumber (except for Permitted Liens) any of the
Collateral;
(iii) Debtor breaches any of its insurance obligations under Section
4;
(iv) Debtor breaches any of its other obligations under any of the
Debt Documents and fails to cure that breach within thirty (30) days after
written notice from Secured Party;
(v) Any warranty, representation or statement made by Debtor in any of
the Debt Documents or otherwise in connection with any of the Indebtedness shall
be false or misleading in any material respect;
(vi) Any of the Collateral is subjected to attachment, execution,
levy, seizure or confiscation in any legal proceeding or otherwise, or if any
legal or administrative proceeding is commenced against Debtor or any of the
Collateral, which in the good faith judgment of Secured Party subjects any of
the
Collateral to a material risk of attachment, execution, levy, seizure or
confiscation and no bond is posted or protective order obtained to negate such
risk;
(vii) Debtor breaches or is in default under any other agreement between
Debtor and Secured Party;
(viii) Debtor or any guarantor or other obligor for any of the Indebtedness
(collectively "Guarantor") dissolves, terminates its existence,
becomes insolvent or ceases to do business as a going concern;
(ix) If Debtor or any Guarantor is a natural person, Debtor or any such
Guarantor dies or becomes incompetent;
(x) A receiver is appointed for all or of any part of the property of
Debtor or any Guarantor, or Debtor or any Guarantor makes any
assignment for the benefit of creditors; or
(xi) Debtor or any Guarantor files a petition under any bankruptcy,
insolvency or similar law, or any such petition is filed against
Debtor or any Guarantor and is not dismissed within forty-five
(45) days.
(xii) Debtor's improper filing of an amendment or termination statement
relating to a filed financing statement describing the Collateral.
(b) If Debtor is in default, the Secured Party, at its option, may declare
any or all of the Indebtedness to be immediately due and payable, without demand
or notice to Debtor or Guarantor. The accelerated obligations and liabilities
shall bear interest (both before and after any judgment) until paid in full at
the lower of eighteen percent (18%) per annum or the maximum rate not prohibited
by applicable law.
(c) After default, Secured Party shall have all of the rights and remedies
of a Secured Party under the Uniform Commercial Code, and under any other
applicable law. Without limiting the foregoing, Secured Party shall have the
right to (i) notify any account debtor of Debtor or any obligor on any
instrument which constitutes part of the Collateral to make payment to the
Secured Party, (ii) with or without legal process, enter any premises where the
Collateral may be and take possession of and remove the Collateral from the
premises or store it on the premises, (iii) sell the Collateral at public or
private sale, in whole or in part, and have the right to bid and purchase at
said sale, or (iv) lease or otherwise dispose of all or part of the Collateral,
applying proceeds from such disposition to the obligations then in default. If
requested by Secured Party, Debtor shall promptly assemble the Collateral and
make it available to Secured Party at a place to be designated by Secured Party
which is reasonably convenient to both parties. Secured Party may also render
any or all of the Collateral unusable at the Debtor's premises and may dispose
of such Collateral on such premises without liability for rent or costs. Any
notice that Secured Party is required to give to Debtor under the Uniform
Commercial Code of the time and place of any public sale or the time after which
any private sale or other intended disposition of the Collateral is to be made
shall be deemed to constitute reasonable notice if such notice is given to the
known address of Debtor at least five (5) days prior to such action.
(d) Proceeds from any sale or lease or other disposition shall be applied:
first, to all costs of repossession, storage, and disposition including without
limitation attorneys', appraisers', and auctioneers' fees; second, to discharge
the obligations then in default; third, to discharge any other Indebtedness of
Debtor to Secured Party, whether as obligor, endorser, guarantor, surety or
indemnitor; fourth, to expenses incurred in paying or settling liens and claims
against the Collateral; and lastly, to Debtor, if there exists any surplus.
Debtor shall remain fully liable for any deficiency.
(e) Debtor agrees to pay all reasonable attorneys' fees and other costs
incurred by Secured Party in connection with the enforcement, assertion, defense
or preservation of Secured Party's rights and remedies under this Agreement, or
if prohibited by law, such lesser sum as may be permitted. Debtor further agrees
that such fees and costs shall constitute Indebtedness.
(f) Secured Party's rights and remedies under this Agreement or otherwise
arising are cumulative and may be exercised singularly or concurrently. Neither
the failure nor any delay on the part of the Secured Party to exercise any
right, power or privilege under this Agreement shall operate as a waiver, nor
shall any single or partial exercise of any right, power or privilege preclude
any other or further exercise of that or any other right, power or privilege.
SECURED PARTY SHALL NOT BE DEEMED TO HAVE WAIVED ANY OF ITS RIGHTS UNDER THIS
AGREEMENT OR UNDER ANY OTHER AGREEMENT, INSTRUMENT OR PAPER SIGNED BY DEBTOR
UNLESS SUCH WAIVER IS EXPRESSED IN WRITING AND SIGNED BY SECURED PARTY. A waiver
on any one occasion shall not be construed as a bar to or waiver of any right or
remedy on any future occasion.
(g) DEBTOR AND SECURED PARTY UNCONDITIONALLY WAIVE THEIR RIGHTS TO A JURY
TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS
AGREEMENT, ANY OF THE OTHER DEBT DOCUMENTS, ANY OF THE INDEBTEDNESS SECURED
HEREBY, ANY DEALINGS BETWEEN DEBTOR AND SECURED PARTY RELATING TO THE SUBJECT
MATTER OF THIS TRANSACTION OR ANY RELATED TRANSACTIONS, AND/OR THE RELATIONSHIP
THAT IS BEING ESTABLISHED BETWEEN DEBTOR AND SECURED PARTY. THE SCOPE OF THIS
WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE
FILED IN ANY COURT. THIS WAIVER IS IRREVOCABLE. THIS WAIVER MAY NOT BE MODIFIED
EITHER ORALLY OR IN WRITING. THE WAIVER ALSO SHALL APPLY TO ANY SUBSEQUENT
AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS
AGREEMENT, ANY OTHER DEBT DOCUMENTS, OR TO ANY OTHER DOCUMENTS OR AGREEMENTS
RELATING TO THIS TRANSACTION OR ANY RELATED TRANSACTION. THIS AGREEMENT MAY BE
FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
8. MISCELLANEOUS.
(a) This Agreement, any Note and/or any of the other Debt Documents may be
assigned, in whole or in part, by Secured Party without notice to Debtor, and
Debtor agrees not to assert against any such assignee, or assignee's assigns,
any defense, set-off, recoupment claim or counterclaim which Debtor has or may
at any time have against Secured Party for any reason whatsoever. Debtor agrees
that if Debtor receives written notice of an assignment from Secured Party,
Debtor will pay all amounts payable under any assigned Debt Documents to such
assignee or as instructed by Secured Party. Debtor also agrees to confirm in
writing receipt of the notice of assignment as may be reasonably requested by
Secured Party or Assignee.
(b) All notices to be given in connection with this Agreement shall be in
writing, shall be addressed to the parties at their respective addresses set
forth in this Agreement (unless and until a different address may be specified
in a written notice to the other party), and shall be deemed given (i) on the
date of receipt if delivered in hand or by facsimile transmission, (ii) on the
next business day after being sent by express mail, and (iii) on the fourth
business day after being sent by regular, registered or certified mail. As used
herein, the term "business day" shall mean and include any day other than
Saturdays, Sundays, or other days on which commercial banks in New York, New
York are required or authorized to be closed.
(c) Secured Party may correct patent errors and fill in all blanks in this
Agreement or in any Collateral Schedule consistent with the agreement of the
parties.
(d) Time is of the essence of this Agreement. This Agreement shall be
binding, jointly and severally, upon all parties described as the "Debtor" and
their respective heirs, executors, representatives, successors and assigns, and
shall inure to the benefit of Secured Party, its successors and assigns.
(e) This Agreement and its Collateral Schedules constitute the entire
agreement between the parties with respect to the subject matter of this
Agreement and supersede all prior understandings (whether written, verbal or
implied) with respect to such subject matter. THIS AGREEMENT AND ITS COLLATERAL
SCHEDULES SHALL NOT BE CHANGED OR TERMINATED ORALLY OR BY COURSE OF CONDUCT, BUT
ONLY BY A WRITING SIGNED BY BOTH PARTIES. Section headings contained in this
Agreement have been included for convenience only, and shall not affect the
construction or interpretation of this Agreement.
(f) This Agreement shall continue in full force and effect until all of the
indebtedness has been indefeasibly paid in full to Secured Party or its
assignee. The surrender, upon payment or otherwise, of any Note or any of the
other documents evidencing any of the Indebtedness shall not affect the right of
Secured Party to retain the Collateral for such other Indebtedness as may then
exist or as it may be reasonably contemplated will exist in the future. This
Agreement shall automatically be reinstated if Secured Party is ever required to
return or restore the payment of all or any portion of the Indebtedness (all as
though such payment had never been made).
(g) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL IN ALL RESPECTS BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
INTERNAL LAWS OF THE STATE OF CONNECTICUT (WITHOUT REGARD TO THE CONFLICT OF
LAWS PRINCIPLES OF SUCH STATE), INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY
AND PERFORMANCE REGARDLESS OF THE LOCATION OF THE EQUIPMENT.
IN WITNESS WHEREOF, Debtor and Secured Party, intending to be legally bound
hereby, have duly executed this Agreement in one or more counterparts, each of
which shall be deemed to be an original, as of the day and year first aforesaid.
SECURED PARTY: DEBTOR:
General Electric Capital Corporation BioMarin Pharmaceutical Inc.
By: /s/ Diane Hernandez By: /s/ R.W. Anderson
-------------------------------- ----------------------------------
Name: Diane Hernandez Title: CFO, COO, VP Finance & Admin.,
------------------------------ & Secretary
Title: Vice President -------------------------------
----------------------------- Name: Raymond W. Anderson
--------------------------------
AMENDMENT
THIS AMENDMENT is made as of the 31 day of December, 2001, between
General Electric Capital Corporation ("Secured Party") and Biomarin
Pharmaceuticals, Inc. ("Debtor") in connection with that certain Master Security
Agreement, dated or dated as of December 15, 2001 ("Agreement"). The terms of
this Amendment are hereby incorporated into the Agreement as though fully set
forth therein. Section references below refer to the section numbers of the
Agreement. The Agreement is hereby amended as follows:
2. REPRESENTATIONS, WARRANTIES AND COVENANTS OF DEBTOR.
---------------------------------------------------
Subsection (k)(ii) is hereby amended to replace the word "due" with the
word "delinquent."
3. COLLATERAL.
-----------
Subsection (c) is hereby amended and replaced with the following:
"(c) Debtor shall not, without the prior written consent of Secured
Party, (i) part with possession of any of the Collateral (except to
Secured Party or for maintenance and repair), (ii) remove any of the
Collateral from the address specified in the Collateral Schedule, or
(iii) sell, rent, lease, mortgage, grant a security interest in or
otherwise transfer or encumber (except for Permitted Liens) any of the
Collateral."
The first sentence of Subsection (d) is hereby amended by adding the words
"and prior to delinquency" after the word "due."
5. REPORTS.
--------
Section 5 is hereby amended and replaced with the following:
5. REPORTS.
(a) Debtor shall promptly notify Secured Party of (i) any change
in the name of Debtor, (ii) any relocation of its chief executive
offices or its state of organization, (iii) any relocation of any of
the Collateral, which relocation may not be made unless Debtor has
obtained the prior written consent of Secured Party, (iv) any of the
Collateral with a value in excess of $5,000 being lost, stolen,
missing, destroyed, materially damaged or worn out, or (v) any lien,
claim or encumbrance other than Permitted Liens attaching to or being
made against any of the Collateral.
(b) Debtor will deliver to Secured Party financial statements as
follows. If Debtor is a privately held company, then Debtor agrees to
provide monthly financial statements, certified by Debtor's president
or chief financial officer including a balance sheet, statement of
operations and cash flow statement within 30 days of each month end
and its complete audited annual financial statements, certified by a
recognized firm of certified public accountants, within 120 days of
fiscal year end or at such time as Debtor's Board of Directors
receives the audit. If Debtor is a publicly held company, then Debtor
agrees to provide quarterly unaudited statements and annual audited
statements, certified by a recognized firm of certified public
accountants, within 10 days after the statements are provided to the
Securities and Exchange Commission ("SEC"). All such statements are to
be prepared using generally accepted accounting principles ("GAAP")
and, if Debtor is a publicly held company, are to be in compliance
with SEC requirements.
7. DEFAULT AND REMEDIES.
Section 7(a)(viii) is hereby amended and replaced with the following:
(viii) Debtor or any guarantor or other obligor for any of the
Indebtedness (collectively "Guarantor") dissolves, terminates its
existence, becomes insolvent, ceases to do business as a going
concern, or, without the prior written consent of Secured Party, (A)
Debtor sells all or substantially all of its assets, or sells assets
which constitute, or are an integral part of, the primary intellectual
property of Debtor, or sells all or substantially all of the assets of
the division of Debtor purchasing or using the Collateral, if
applicable, or (B) Debtor becomes a party to any consolidation or
merger where the Debtor is not the surviving entity, or (C) the
stockholders of Debtor sell or transfer more than 50% of the
outstanding voting stock of Debtor in a single transaction or a series
of related transactions, or, (D) if Debtor is a publicly held
company, any person or group of persons (within the meaning of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"))
shall have acquired beneficial ownership (within the meaning of Rule
13d-3 promulgated by the Securities and Exchange Commission under the
Exchange Act) of 40% or more of the outstanding voting stock of
Debtor;
TERMS USED, BUT NOT OTHERWISE DEFINED HEREIN SHALL HAVE THE MEANINGS GIVEN
TO THEM IN THE AGREEMENT. EXCEPT AS EXPRESSLY AMENDED HEREBY, THE AGREEMENT
SHALL REMAIN IN FULL FORCE AND EFFECT. IF THERE IS ANY CONFLICT BETWEEN THE
PROVISIONS OF THE AGREEMENT AND THIS AMENDMENT, THEN THIS AMENDMENT SHALL
CONTROL.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment
simultaneously with the Agreement by signature of their respective authorized
representative set forth below.
General Electric Corporation Biomarin Pharmaceuticals, Inc.
By: /s/ Diane Hernandez By: /s/ Raymond W. Anderson
------------------------ -----------------------------------
Name: Diane Hernandez Name: Raymond W. Anderson
---------------------- ---------------------------------
Title: Vice President Title: CFO, COO, VP of Finance & Admin.,
--------------------- --------------------------------
and Secretary
--------------------------------
FINANCIAL COVENANTS
ADDENDUM NO. 001
TO MASTER SECURITY AGREEMENT
DATED AS OF December 15, 2001
THIS ADDENDUM (this "Addendum") amends and supplements the above referenced
agreement (the "Agreement"), between General Electric Capital Corporation
(together with its successors and assigns, if any, "Secured Party") and BioMarin
Pharmaceutical ("Debtor") and is hereby incorporated into the Agreement as
though fully set forth therein. Capitalized terms not otherwise defined herein
shall have the meanings set forth in the Note and Security Agreement.
The Agreement is hereby amended by adding the following:
FINANCIAL COVENANTS.
Debtor shall, at all times during the term of the Agreement, comply
with the following:
Maintain minimum Unrestricted Cash (as defined below) in the amount of
$35,000,000. If this covenant is violated, Debtor will provide Secured
Party within ten (10) days of such occurrence, (i) an irrevocable
letter of credit in an amount equal to the total of Debtor's then
outstanding Indebtedness to Secured Party under the Agreement or (ii)
pay Secured Party the total of Debtor's then outstanding Indebtedness
under the Agreement plus a penalty. If Debtor supplies Secured Party
with the letter of credit, the letter of credit shall be released only
upon Debtor's cash balances exceeding $50,000,000.
Unrestricted Cash shall be defined as cash on hand plus investments in
marketable securities with maturities of less than eighteen (18)
months or secured by an agency of the U.S. government, less cash
pledged to other parties and any contingent liability associated with
similar cash covenants under leases, loans or other financial
arrangements.
Except as expressly modified hereby, all terms and provisions of the Note and
Security Agreement shall remain in full force and effect. This Addendum is not
binding nor effective with respect to the Note and Security Agreement until
executed on behalf of Secured Party and Debtor by authorized representatives of
Secured Party and Debtor.
IN WITNESS WHEREOF, Debtor and Secured Party have caused this Addendum
to be executed by their duly authorized representatives as of the date first
above written.
Secured Party: Debtor:
General Electric Capital Corporation BioMarin Pharmaceutical
By: /s/ JOHN EDEL By: /s/ LOUIS DRAPEAU
---------------------------------
Name: JOHN EDEL Name: LOUIS DRAPEAU
-------------------------------
Title: SVP Title: CFO
------------------------------
Attest
By: /s/ Kim R. Tsuchimoto
Name: Kim R. Tsuchimoto
--------------------------------
VP, Controller
PREPAYMENT AGREEMENT AND AMENDMENT
TO PROMISSORY NOTE DATED DECEMBER 15, 2001
THIS PREPAYMENT AGREEMENT AND AMENDMENT TO PROMISSORY NOTE (this "Agreement") is
made and entered into as of this 31st day of December, 2001 between General
Electric Capital Corporation ("Secured Party") and BioMarin Pharmaceutical Inc.
("Debtor") in connection with that certain Master Security Agreement, dated or
dated as of December 15, 2001 (the "Security Agreement"), and a Promissory Note
("Note") dated December 15, 2001, in the principal sum of One Million Two
Hundred Eighty Thousand Six Hundred Sixty & 00/100 Dollars ($1,280,660.00),
which is secured by the Security Agreement.
In consideration of, and as an inducement for Secured Party to enter into the
Security Agreement and to fund the loan evidenced by the Note, and to secure the
payment and performance of all obligations of Debtor to Secured Party under the
Note, the Security Agreement and all other documents, riders, annexes and
instruments executed in connection therewith (collectively, the "Agreements"),
Debtor agrees as follows:
If at any point in time from the date of this Agreement, Debtor's Unrestricted
Cash ("Unrestricted Cash" shall mean cash on hand, including investments in
marketable securities with maturities of less than fourteen (14) months, less
all long-term debt which is not subordinated to Secured Party) falls below
$25,000,000 as set forth on any 10K or 10Q provided to Secured Party pursuant to
the Agreements, Debtor will prepay to Secured Party, within ten (10) business
days of the date of such 10K or 10Q, all indebtedness owed under the Note, in
whole but not part, including, without limitation, the sum of (i) the then
outstanding principal balance of the Note plus accrued interest, if any, and any
other open, unpaid charges or amounts owing to Secured Party under the Note,
plus (ii) a premium of four per cent (4%) if the prepayment is during Year 1 of
the Note, a premium of three per cent (3%) if the prepayment is during Year 2 of
the Note, a premium of two per cent (2%) if the prepayment is during Year 3 of
the Note, and a premium of one per cent (1%) thereafter. The applicable premium
will be calculated on the then outstanding principal balances of the Note. Year
1 with respect to the Note will mean the period consisting of the due date of
the first (1st) installment through the due date of the twelfth (12th)
installment under the Note and subsequent Years will refer to the subsequent
twelve monthly payment periods under the Note.
The failure to prepay the Note within ten (10) business days as required by this
Agreement shall constitute an event of default under all Agreements.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first written above.
DEBTOR: SECURED PARTY:
BioMarin Pharmaceutical, Inc. General Electric Capital Corporation
By: /s/ R.W. ANDERSON By: /s/ JOHN EDEL
--------------------------- --------------------------------
Name: R.W. Anderson Name: John Edel
------------------------- ------------------------------
Title: VP Finance and Title: SVP
Administration, CFO -----------------------------
-------------------------
December 18, 2001
BioMarin Pharmaceutical, Inc.
371 Bel Marin Keys Boulevard, Ste. 210
Novato, CA 94949
Attention: Raymond W. Anderson
Chief Financial Officer, Chief Operating Officer
Gentlemen:
Reference is made to the Master Security Agreement dated December 15, 2001 (the
"Security Agreement"), between BioMarin Pharmaceutical, Inc. ("Debtor") and
General Electric Capital Corporation ("Secured Party") and all Promissory Notes
thereunder (the "Agreements").
Notwithstanding any language to the contrary contained in the Agreements,
provided that Debtor is not then in default under the Agreements and in the
Event Secured Party does not consent to a transaction described in Section
7(a)(viii) of the Security Agreement, Debtor shall have the right, upon at least
ten (10) business days prior written notice to Secured Party, to prepay all
indebtedness owed under the Agreements simultaneously, in whole but not part, on
the periodic installment due date designated in such notice by paying to Secured
Party the sum of (i) the then outstanding principal balance for each Promissory
Note under the Agreements plus accrued interest, if any, and any other open,
unpaid charges or amounts owing to Secured Party, plus (ii) a premium of five
per cent (5%) if the prepayment is during Year 1 of a Promissory Note, a premium
of four per cent (4%) if the prepayment is during Year 2 of a Promissory Note, a
premium of three per cent (3%) if the prepayment is during Year 3, and a premium
of two per cent (2%) thereafter. The applicable premium will be calculated on
the then outstanding principal balances of each Promissory Note. Year 1 with
respect to a Promissory Note will mean the period consisting of the first (1st)
through twelfth (12th) installments under the Promissory Note and subsequent
Years will refer to the subsequent twelve monthly payment periods under the
Promissory Note.
If Debtor elects to exercise this prepayment option, then this prepayment option
must be exercised by Debtor before completing a transaction described in Section
7(a)(viii) of the Security Agreement. This option may not be exercised by a
successor-in-interest to Debtor.
Sincerely,
General Electric Capital Corporation Agreed: BioMarin Pharmaceutical, Inc.
By: /s/ Diane Hernandez By: /s/ Raymond W. Anderson
----------------------------- ------------------------------
Title: Vice President Title: CFO, COO, VP Finance & Admin.,
and Secretary
----------------------------- ------------------------------
Date: Date: 12-20-01
----------------------------- ------------------------------
ADDITIONAL COLLATERAL RIDER
---------------------------
This Additional Collateral Rider (this "Rider") is part of that certain Master
Security Agreement dated December 15, 2001 and all Collateral Schedules thereto
(collectively the "Contract") between GENERAL ELECTRIC CAPITAL CORPORATION (the
"Secured Party") and BioMarin Pharmaceutical, Inc. ("Debtor"). Unless otherwise
defined herein, all capitalized terms used in this Rider have the meanings set
forth in the Contract.
1. As security for the full and faithful performance by Debtor of all of the
Indebtedness as defined in the Contract and all other obligations of Debtor to
Secured Party now or hereafter in existence, Debtor does hereby grant to Secured
Party a continuing first priority security interest in all of Debtor's right,
title and interest in and to the following (all hereinafter collectively called
the "Additional Collateral"):
. All Equipment (as defined in the Uniform Commercial Code) described on
the attached Exhibit A, and wherever located, including but not
limited to all laboratory, scientific, test and production equipment
and all proceeds thereof, including insurance proceeds. This lien will
stay in effect until all of Debtor's obligations under this financing
are fulfilled.
2. In the event of a default by Debtor under the Contract or under any other
obligation to Secured Party, Secured Party shall have all of the rights and
remedies of a secured party under the Code with respect to the Additional
Collateral in addition to any other rights which it may have under the Contract.
Debtor shall have the same obligations with respect to the portion of the
Additional Collateral constituting Equipment as it has under the Contract with
respect to the Collateral financed under the Contract, including but not limited
to the restrictions on moving, transferring, encumbering or giving up possession
of, and the obligation to insure, such Additional Collateral constituting
Equipment.
3. This agreement shall run to the benefit of Secured Party's successors and
assigns. Except as expressly modified hereby, all of the terms and provisions of
the Contract shall remain in full force and effect.
IN WITNESS WHEREOF, the parties have executed this Rider simultaneously with the
Master Security Agreement.
Dated: 12-20-01
GENERAL ELECTRIC CAPITAL
CORPORATION BIOMARIN PHARMACEUTICAL, INC.
BY: /s/ Diane Hernandez BY: /s/ R. W. Anderson
------------------------------ -----------------------------
TITLE: Vice President TITLE: CFO, COO, VP Finance &
-------------------------- Admin. and Secretary
--------------------------
COLLATERAL SCHEDULE NO. 1
THIS COLLATERAL SCHEDULE NO. 1 is annexed to and made a part of that certain
Master Security Agreement dated as of December 15, 2001 between General Electric
Capital Corporation, together with its successors and assigns, if any, as
Secured Party and BioMarin Pharmaceutical, Inc. as Debtor and describes
collateral in which Debtor has granted Secured Party a security interest in
connection with the Indebtedness (as defined in the Master Security Agreement)
including without limitation that certain Promissory Note dated December 15,
2001 in the original principal amount of $3,531,450.00.
See the attached Exhibit A, which more fully describes the equipment
on this schedule.
Note: Equipment is located at: 371 Bel Marin Keys Blvd., Ste. 210,
Novato, CA 94949
46 Galli Drive, Novato, CA 94949
11 Pimentel Court, Novato CA 94949
95 Digital Drive, Novato, CA 94949
Debtor authorizes Secured Party to file a financing statement and amendments
thereto describing the above-described Collateral and containing any other
information required by the applicable Uniform Commercial Code. Debtor
irrevocably grants to Secured Party the power to sign Debtor's name and
generally to act on behalf of Debtor to execute and file applications for title,
transfers of title, financing statements, notices of lien and other documents
pertaining to any or all of such Collateral; this power is coupled with Secured
Party's interest in the Collateral. Debtor ratifies its prior authorization for
Secured Party to file financing statements and amendments thereto describing the
Collateral and containing any other information required by the Uniform
Commercial Code if filed prior to the date hereof.
SECURED PARTY: DEBTOR:
General Electric Capital Corporation BioMarin Pharmaceutical, Inc.
By: /s/ Diane Hernandez By: /s/ Stuart J. Swiedler
----------------------- -------------------------------------
Title: VP Title: VP Scientific and Clinical Affairs
-------------------- ----------------------------------
Date: Date: 12/26/01
--------------------- -----------------------------------
PROMISSORY NOTE
December 15, 2001
-----------------
(Date)
371 Bel Marin Keys Boulevard, Suite 210, Novato, CA 94949
---------------------------------------------------------
(Address of Maker)
FOR VALUE RECEIVED, BioMarin Pharmaceutical, Inc. a Delaware corporation
located at the address stated below ("Maker") promises, jointly and severally if
more than one, to pay to the order of General Electric Capital Corporation or
any subsequent holder hereof (each, a "Payee") at its office located at 5150 El
Camino Real, Suite B-21, Los Altos, CA 94022 or at such other place as Payee or
the holder hereof may designate, the principal sum of Three Million Five Hundred
Thirty One Thousand Four Hundred Fifty & 00/100 Dollars ($3,531,450.00), with
interest on the unpaid principal balance, from the date hereof through and
including the dates of payment, at a fixed interest rate of 9.10% percent per
annum, to be paid in lawful money of the United States, in thirty six (36)
consecutive monthly installments of principal and interest as follows:
Periodic
Installment Amount
----------- ------
Monthly $111,629.00
(each "Periodic Installment"), and a final installment which shall be in the
amount of the total outstanding principal and interest. The first Periodic
Installment shall be due and payable on December 15, 2001 and the following
Periodic Installments and the final installment shall be due and payable on the
same day of each succeeding month (each, a "Payment Date"). Such installments
have been calculated on the basis of a 360 day year of twelve 30-day months.
Each payment may, at the option of the Payee, be calculated and applied on an
assumption that such payment would be made on its due date.
The acceptance by Payee of any payment which is less than payment in full of all
amounts due and owing at such time shall not constitute a waiver of Payee's
right to receive payment in full at such time or at any prior or subsequent
time.
The Maker hereby expressly authorizes the Payee to insert the date value is
actually given in the blank space on the face hereof and on all related
documents pertaining hereto.
This Note is secured by the Master Security Agreement dated December 15, 2001
("Security Agreement").
Time is of the essence hereof. If any installment or any other sum due under
this Note or any Security Agreement is not received within ten (10) days after
its due date, the Maker agrees to pay, in addition to the amount of each such
installment or other sum, a late payment charge of five percent (5%) of the
amount of said installment or other sum, but not exceeding any lawful maximum.
If (i) Maker fails to make payment of any amount due hereunder within ten (10)
days after the same becomes due and payable; or (ii) Maker is in default under,
or fails to perform under any term or condition contained in any Security
Agreement, then the entire principal sum remaining unpaid, together with all
accrued interest thereon and any other sum payable under this Note or any
Security Agreement, at the election of Payee, shall immediately become due and
payable, with interest thereon at the lesser of eighteen percent (18%) per annum
or the highest rate not prohibited by applicable law from the date of such
accelerated maturity until paid (both before and after any judgment).
Notwithstanding anything to the contrary contained herein or in the Security
Agreement, Maker may not prepay in full or in part any indebtedness hereunder
without the express written consent of Payee in its sole discretion.
It is the intention of the parties hereto to comply with the applicable usury
laws; accordingly, it is agreed that, notwithstanding any provision to the
contrary in this Note or any Security Agreement, in no event shall this Note or
any Security Agreement require the payment or permit the collection of interest
in excess of the maximum amount permitted by applicable law. If any such excess
interest is contracted for, charged or received under this Note or any Security
Agreement or if all of the principal balance shall be prepaid, so that under any
of such circumstances the amount of interest contracted for, charged or received
under this Note or any Security Agreement on the principal balance shall exceed
the maximum amount of interest permitted by applicable law, then in such event
(a) the provisions of this paragraph shall govern and control, (b) neither Maker
nor any other person or entity now or hereafter liable for the payment hereof
shall be obligated to pay the amount of such interest to the extent that it is
in excess of the maximum amount of interest permitted by applicable law, (c) any
such excess which may have been collected shall be either applied as a credit
against the then unpaid principal balance or refunded to Maker, at the option of
the Payee, and (d) the effective rate of interest shall be automatically reduced
to the maximum lawful contract rate allowed under applicable law as now or
hereafter construed by the courts having jurisdiction thereof. It is further
agreed that without limitation of the foregoing, all calculations of the rate of
interest contracted
for, charged or received under this Note or any Security Agreement which are
made for the purpose of determining whether such rate exceeds the maximum lawful
contract rate, shall be made, to the extent permitted by applicable law, by
amortizing, prorating, allocating and spreading in equal parts during the period
of the full stated term of the indebtedness evidenced hereby, all interest at
any time contracted for, charged or received from Maker or otherwise by Payee in
connection with such indebtedness; provided, however, that if any applicable
state law is amended or the law of the United States of America preempts any
applicable state law, so that it becomes lawful for the Payee to receive a
greater interest per annum rate than is presently allowed, the Maker agrees
that, on the effective date of such amendment or preemption, as the case may be,
the lawful maximum hereunder shall be increased to the maximum interest per
annum rate allowed by the amended state law or the law of the United States of
America.
The Maker and all sureties, endorsers, guarantors or any others (each such
person, other than the Maker, an "Obligor") who may at any time become
liable for the payment hereof jointly and severally consent hereby to any
and all extensions of time, renewals, waivers or modifications of, and all
substitutions or releases of, security or of any party primarily or
secondarily liable on this Note or any Security Agreement or any term and
provision of either, which may be made, granted or consented to by Payee,
and agree that suit may be brought and maintained against any one or more
of them, at the election of Payee without joinder of any other as a party
thereto, and that Payee shall not be required first to foreclose, proceed
against, or exhaust any security hereof in order to enforce payment of this
Note. The Maker and each Obligor hereby waives presentment, demand for
payment, notice of nonpayment, protest, notice of protest, notice of
dishonor, and all other notices in connection herewith, as well as filing
of suit (if permitted by law) and diligence in collecting this Note or
enforcing any of the security hereof, and agrees to pay (if permitted by
law) all expenses incurred in collection, including Payee's actual
attorneys' fees. Maker and each Obligor agrees that fees not in excess of
twenty percent (20%) of the amount then due shall be deemed reasonable.
THE MAKER HEREBY UNCONDITIONALLY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM
OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF, DIRECTLY OR INDIRECTLY, THIS
NOTE, ANY OF THE RELATED DOCUMENTS, ANY DEALINGS BETWEEN MAKER AND PAYEE
RELATING TO THE SUBJECT MATTER OF THIS TRANSACTION OR ANY RELATED TRANSACTIONS,
AND/OR THE RELATIONSHIP THAT IS BEING ESTABLISHED BETWEEN MAKER AND PAYEE. THE
SCOPE OF THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL DISPUTES
THAT MAY BE FILED IN ANY COURT (INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS,
TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY
CLAIMS.) THIS WAIVER IS IRREVOCABLE MEANING THAT IT MAY NOT BE MODIFIED EITHER
ORALLY OR IN WRITING, AND THE WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS NOTE, ANY RELATED DOCUMENTS, OR
TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THIS TRANSACTION OR ANY RELATED
TRANSACTION. IN THE EVENT OF LITIGATION, THIS NOTE MAY BE FILED AS A WRITTEN
CONSENT TO A TRIAL BY THE COURT.
This Note and any Security Agreement constitute the entire agreement of the
Maker and Payee with respect to the subject matter hereof and supercedes
all prior understandings, agreements and representations, express or
implied.
No variation or modification of this Note, or any waiver of any of its
provisions or conditions, shall be valid unless in writing and signed by an
authorized representative of Maker and Payee. Any such waiver, consent,
modification or change shall be effective only in the specific instance and for
the specific purpose given.
Any provision in this Note or any Security Agreement which is in conflict
with any statute, law or applicable rule shall be deemed omitted, modified,
or altered to conform thereto.
BioMarin Pharmaceutical, Inc.
/s/ JEFFREY TUCKIS By: /s/ STUART J. SWIEDLER
- --------------------------------- --------------------------------------
(Witness) (Signature)
Jeffrey Tuckis Stuart J. Swiedler - VP Scientific and
- --------------------------------- Clinical Affairs
(Print Name) ------------------------------------------
Print name (and title, if applicable)
371 Bel Marin Keys Blvd. Ste. 210
Novato, CA 94947 68-0397820
- --------------------------------- ------------------------------------------
(Address) (Federal tax identification number)