EXHIBIT 10.16
[LETTERHEAD]
MASTER LOAN AND SECURITY AGREEMENT
Master Loan and Security Agreement No. S6880 Dated August 25, 1998
FINOVA Technology Finance, Inc. ("we," "us" or "FINOVA") is willing to make a
loan (the "Loan") to Kosan Bioscience, Inc. ("you" or "Borrower") under the
terms and conditions contained in this Master Loan and Security Agreement (this
"Master Agreement"). The Loan will be secured by the Collateral described in any
schedule to this Agreement (a "Schedule"). The Collateral also includes any
replacement parts, additions and accessories that you may add to the Collateral,
as well as any proceeds of sale, lease or rental of the Collateral. We may treat
any Schedule as a separate loan and security agreement containing all of the
provisions of this Loan and Security Agreement.
1. THE CREDIT
We may make the Loan in more than one advance (an "Advance", each of which shall
be evidenced by a "Schedule"). All of the Schedules, taken together, will make
up the 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 Agreement will each apply to the Loan.
- - USE OF PROCEEDS. You will use the proceeds of the Loan to pay for the
Collateral. We may pay the Supplier (whom you have chosen) of the
Collateral directly from the Loan proceeds. The Supplier will deliver
the Collateral to you at your expense. You will properly install the
Collateral at your expense at the location(s) indicated in the Schedule.
If you have already paid for the Collateral, we will pay the Loan proceeds
to you or to another person that you may designate in writing.
- - NOTES. Your obligation to repay the Loan and to pay interest on the Loan
will be evidenced by Notes. Each Note will be dated the date of the
Schedule to which the Advance evidenced by the Note is related.
- - TERM. The Term of each Schedule (and the related Advance) begins upon the
date that we make payment for the Collateral covered under each Schedule
(the "Closing Date"). The Term continues until you fully perform all of
your obligations under this Agreement and each Schedule and the related
Note(s). If the Collateral is not delivered, installed and accepted by you
by the date indicated in the Schedule, we may terminate this Agreement and
the Schedule as to the Collateral that was not delivered, installed and
accepted by giving you 10 days written notice of termination. Any advance
Loan payment you may have paid us is nonrefundable, even if the Term never
starts or if we rightfully terminate this Agreement or the Schedule.
- - LOAN ACCOUNT. We will keep a loan account on our books and records (which
are computerized) 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. We may send you loan account statements from time to
time or upon your request.
- - PAYMENTS. The scheduled loan payments (the "Payments") are indicated on the
Schedule. The Payments are payable periodically as specified on the
Schedule from time to time (for example, monthly). The Schedule also
indicates whether the Payments are payable "in advance" or "in arrears."
You agree that you owe us the total of all of these Payments over the Term
of the Schedule.
- - FIRST PAYMENT. The first Payment is due at the beginning of the Term or at
a later date that we agree to in writing. Subsequent Payments are due on
the thirtieth day of each successive period (except the next following
period if Payments are payable in arrears) until you pay us in full all of
the Payments and any other charges or expenses you owe us.
- - INTEREST. Prior to maturity of a Schedule, you will pay us interest on each
Schedule at the Interest Rate indicated in the Schedule. "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 this
Interest Rate. Interest is calculated in advance using a year of 360 days
with twelve months of 30 days.
- - DEFAULT INTEREST RATE. After Maturity of the Loan you will pay us interest
at a rate of four (4%) percent per year above the Interest Rate. This is
referred to as the "Default Rate."
- - INTERIM PAYMENT. If an Advance is made on a day other than the thirtieth or
thirty-first day of a period, you will also pay us an interim Payment on
the first Payment date. The interim Payment will be for the period from the
beginning of the Term until the twenty-ninth day of the period in which the
Advance is made, unless the Advance is made on the thirty-first day of a
period. If the Advance is made on the thirty-first day of a period, the
interim Payment will be for the period from the beginning of the Term
through and including the twenty-ninth day of the next following period.
The Interim Payment will be calculated the same way as the regular Payments
but pro rata on a daily basis for the number of days for which the interim
Payment is due.
- - 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.
- - 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."
- - 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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- - PREPAYMENT. You may not prepay the Loan, in whole or in part, unless this
is specifically permitted by Exhibit A to this Agreement. If prepayment is
permitted by Exhibit A to this Master Agreement, you will give us at least
30 days advance written notice of prepayment. You will pay us the
prepayment premium indicated in the Schedule(s). You will also pay us all
accrued and unpaid interest through the date of prepayment, as well as all
outstanding fees, costs, expenses and charges then due. Of course, you will
also pay the entire outstanding principal balance of the Loan. Once you
give us a notice of prepayment, that notice is final and irrevocable. If we
accelerate the Loan following an Event of Default, you will also owe us a
prepayment premium calculated as if the Loan were prepaid on the date of
acceleration. If no prepayment is permitted, the premium due upon
acceleration will be five (5%) percent of the outstanding principal
balance.
- - 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
- - You grant us a security interest in the Collateral. The Collateral secures
the full and timely payment and performance of all of your obligations to
us and to FINOVA Capital Corporation under this Master Agreement and any
other agreement, loan or lease that you may have with us or FINOVA Capital
Corporation (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.
- - If we request, you will put labels supplied by us stating "PROPERTY OF
FINOVA" on the Collateral where they are clearly visible.
- - You give us permission to add to this Master Agreement or any Schedule the
serial numbers and other information about the Collateral.
- - You give us permission to file this Master Agreement or a Uniform
Commercial Code financing statement, 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.
- - You will pay our cost to do searches for other filings or judgments against
you or your affiliates. You will also pay any filing, recording or stamp
fees or taxes resulting from filing this Agreement or a Uniform Commercial
Code financing statement. You will also pay our fees in effect from time to
time for documentation, administration and Termination of this Master
Agreement.
- - 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.
- - You will notify us at least 15 days before you change the address of your
principal executive office.
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- - You will promptly sign and return additional documents that we may request
in order to protect our first priority security interest in the Collateral.
- - The Collateral is personal property and will remain personal property. 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 without
lender's prior consent.
3. CONDITIONS OF LENDING
- - See our Commitment Letter to you dated August 24, 1998, 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.
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 Agreement, the Schedules and the Notes control over the Commitment
Letter terms and conditions.
- - Before we disburse any proceeds of any Advance, we also require the
following:
- - That no payment is past due to us under any other agreement, loan or lease
that you or any guarantor have with us or with FINOVA Capital Corporation.
- - That you are complying with all terms of this Agreement.
- - That we have received all the documents we requested, including the signed
Schedule, Note and Delivery and Acceptance Certificate.
- - That there has been no material adverse change in your financial condition,
business, operations or prospects, or that of any guarantor, from the
financial condition that you disclosed to us in your application for
credit.
4. REPRESENTATIONS AND WARRANTIES
You represent and warrant to us as follows:
- - All financial information and other information that you or any guarantor
have given us is true and complete. You or any guarantor have not failed to
tell us anything that would make the financial information misleading.
There has been no material adverse change in your financial condition,
business, operations or prospects, or the financial condition of any
guarantor, from the financial condition that you disclosed to us in your
application for credit.
- - You have supplied us with information about the Collateral. You promise to
us that the amount of our Advance as to each item of Collateral is no more
than the fair and usual price for this kind of Collateral, taking into
account any discounts, rebates and allowances that you or any affiliate of
yours may have been given for the Collateral.
- - 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.
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- - You have taken 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 dates after April 1, 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 Agreement, the
Schedules and the Notes:
CARE, USE, LOCATION AND ALTERATION OF THE COLLATERAL
- - 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.
- - You will maintain service logs for the Collateral and permit us to inspect
the Collateral, the service logs and service reports. You give us
permission to make copies of the service logs and service reports.
- - We will give you prior notice if we, or our agent, want to inspect the
Collateral or the service logs or service reports. We may inspect it during
regular business hours. You will pay our travel, meals and lodging costs to
inspect the Collateral, but only for one inspection per year. If we find
during an inspection that you are not complying with this Master Agreement,
you will pay our travel, meals and lodging costs, our salary costs, and the
costs and fees of our agents for reinspection. You will promptly cure any
problems with the Collateral that are discovered during our inspection.
- - You will use the Collateral only for business purposes. You will obey all
legal and regulatory requirements in your use of the Collateral.
- - 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.
- - You will not remove the Collateral from the location indicated in the
Schedule without our written permission
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 dates after April 1, 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.
RISK OF LOSS
- - 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.
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- - 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 choices). The choices are:
(1) 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.
(2) Pay us the casualty value specified in Exhibit B attached. 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.
INSURANCE
- - Until you have made all Payments to us under this Master Agreement, the
Schedules and the Notes, you will keep the Collateral insured. The amount
of insurance, the coverage, and the insurance company must be acceptable to
us.
- - 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.
- - 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.
- - 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.
TAXES
- - 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 equipment or on the Loan.
- - You will pay all taxes (other than our federal or state net income taxes)
imposed on you or on us regarding the Payments.
- - You will reimburse us for any of these taxes that we pay or advance.
- - You will file and pay for any personal property taxes on the Collateral.
FINANCIAL STATEMENTS
- - During the Term you will promptly give copies of any filings you make with
the Securities and Exchange Commission (SEC). You and any guarantor will
also provide us with the following financial statements:
- - Quarterly balance sheet and statements of earnings and cash flow - within
45 days after the end of your first three fiscal quarters in each fiscal
year. These will be certified by the chief financial officer.
- - Annual balance sheet and statements of earnings and cash flow - within 90
days after the end of each fiscal year. These will be audited by
independent auditors acceptable to FINOVA. Their audit report must be
unqualified.
These financial statements will be prepared according to generally accepted
accounting principles, consistently applied.
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All financial statements and SEC filings that you or any guarantor provide us
will be true and complete. They will not fail to tell us anything that would
make them misleading.
6. DEFAULTS
- - You are in default if any of the following happens:
- - You do not pay us, when it is due, any Payment or other payment that you
owe us under this Master Agreement, any Schedule, Note or that you owe
under any other agreement, loan or lease that you have with us or with
FINOVA Capital Corporation.
- - 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
misleading.
- - 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.
- - An event of default occurs for any other lease, loan or obligation of yours
(or any guarantor) that exceeds $25,000.
- - You or any guarantor file bankruptcy, or involuntary bankruptcy is filed
against you or any guarantor.
- - You or any guarantor are subject to any other insolvency proceeding other
than bankruptcy (for example, a receivership action or an assignment for
the benefit of creditors).
- - Without our permission, you or any guarantor sell all or a substantial part
of its assets, merge or consolidate, or a majority of your voting stock or
interests (or any guarantor's voting stock or interests) is transferred.
- - There is a material adverse change in your financial condition, business,
operations or prospects, or that of any guarantor, from the condition that
you disclosed to us in your application for credit.
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:
- - "Accelerate" the Loan balance under any or all Notes. This means that we
may require you to immediately pay us all Payments for the entire Term for
any or all Schedules.
- - Require you to immediately pay us all amounts that you are required to pay
us for the entire Term of any other agreements, loans or leases that you
have with us.
- - Sue you for all payments and other amounts you owe us plus the Prepayment
Premium (see Section 1 above).
- - Require you at your expense to assemble the Collateral at a location we
request in the United States of America.
- - Remove and repossess the Collateral from where it is located, without
demand or notice, or make the Collateral inoperable. We have your
permission to remove any physical obstructions to removal of the
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Collateral. We may also disconnect and separate all Collateral from other
property. No court order, court hearing or "legal process" will be required
for us to repossess the Collateral. You will not be entitled to any damages
resulting from removal or repossession of the Collateral. We may use, ship,
store, repair or lease any Collateral that we repossess. We may sell any
repossessed Collateral at private or public sale. You give us permission to
show the Collateral to buyers at your location free of charge during normal
business hours. If we do this, we do not have to remove the Collateral from
your location. If we repossess the Collateral and sell it, we will give you
credit for the net sale price, after subtracting our costs of repossessing
and selling the Collateral. If we rent the Collateral to somebody else, we
will give you credit for the net rent received, after subtracting our costs
of repossessing and renting the Collateral, but the credit will be
discounted to present value using a discount rate equal to the Default
Rate. The credit will be applied against what you owe us under this Master
Agreement, the Schedules, the Notes and any other agreements, loans or
leases 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 or leases that you have with us, we will refund the
amount of the excess to you.
- - Return conditions: Following an Event of 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. All advertising
insignia will be removed and the finish will be painted or blended so that
nobody can see that advertising insignia used to be there.
- - 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.
- - You will also return to us the plans, specifications, operating manuals,
software documentation, discs, warranties and other documents furnished by
the Manufacturer or Supplier. You will also return to us all service logs
and service reports, as well as all written materials that you may have
concerning the maintenance and operation of the Collateral.
- - 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 and sell it.
- - You will pay us what it costs us to repair the Collateral if you do not
return it in the required condition.
You will also pay us for the following:
- - All our expenses of enforcing our remedies. This includes all our expenses
to repossess, store, ship, repair and sell the Collateral.
- - Our reasonable attorney's fees and expenses.
- - 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.
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
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these payments are not "penalties" or "forfeitures."
LATE FEES. 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 six (6%)
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.
7. EXPENSES AND INDEMNITIES
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.
- - You will indemnify us, defend us and hold us harmless for any and all
claims, expenses and attorney's fees concerning or arising from the
Collateral, this Agreement, or any Schedule or Note, or your breach of any
representation or warranty. It includes any claims concerning the
manufacture, selection, delivery, possession, use, operation or return of
the Collateral.
- - This obligation of yours to indemnify us continues even after the Term is
over.
8. MISCELLANEOUS
WE MAY ASSIGN OR GRANT A SECURITY INTEREST IN THIS 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 ASSIGNEE.
AFTER ASSIGNMENT YOU MAY "QUIETLY ENJOY" THE USE OF THE COLLATERAL SO LONG AS
YOU ARE NOT IN DEFAULT.
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.
WE DID NOT MANUFACTURE OR SUPPLY THE COLLATERAL. WE ARE NOT A DEALER IN THE
COLLATERAL. INSTEAD, YOU CHOSE THE COLLATERAL.
WE DO NOT MAKE ANY WARRANTY AS TO THE COLLATERAL. WE DO NOT MAKE ANY WARRANTY AS
TO "MERCHANTABILITY" OR "SUITABILITY" OR "FITNESS FOR A PARTICULAR PURPOSE" OR
"NONINFRINGEMENT" OF ANY PATENT, COPYRIGHT OR OTHER INTELLECTUAL PROPERTY RIGHT.
WE WILL NOT BE RESPONSIBLE FOR LOSS, DAMAGE, OR INJURY TO YOU OR ANYBODY ELSE AS
A RESULT OF ANY DEFECTS, HIDDEN OR OTHERWISE, IN
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THE COLLATERAL UNDER "STRICT LIABILITY" LAWS OR ANY OTHER LAWS.
WE WILL NOT BE RESPONSIBLE FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES,
LOSS OF PROFITS OR GOODWILL.
If the Collateral is unsatisfactory, you will continue to pay us all Payments
and other amounts you are required to pay us. You must seek repair or
replacement of the equipment solely from the Manufacturer or Supplier and not
from us. Neither the Manufacturer nor the Supplier is our "agent," so they
cannot speak for us and they are not allowed to make any changes in this Master
Agreement or any Schedule or Note, or give up any of our rights.
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 SUE 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 SUE 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.
NOTICES. We may give you written notice in person, by mail, by overnight
delivery service, or by fax. Notice will be send to your address below your
signature. Mail notice will be effective three (3) days after we mail it with
prepaid postage to the address stated. 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.
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You may give us notice the same way that we may give you notice.
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 Loan 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 Agreement,
then each of you is jointly and severally liable for your obligations under this
Master Agreement.
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 Loan Agreement will remain as written.
PUBLICITY. We may make press releases and publish a tombstone announcing this
transaction and its total amount. You may not publicize this transaction in any
way without our prior written consent.
LENDER: BORROWER:
FINOVA TECHNOLOGY FINANCE INC. KOSAN BIOSCIENCES, INC.
10 WATERSIDE DRIVE 1450 ROLLINS ROAD
FARMINGTON, CT 06032-3065 BURLINGAME, CA 94010
BY: /s/ Linda A. Moschitto BY: /s/ Daniel V. Santi
------------------------ -------------------------
PRINTED NAME: Linda A. Moschitto PRINTED NAME: DANIEL V. SANTI
-------------------- ----------------
TITLE: Director - Contract Administration TITLE: Chairman
-------------------------------------- ------------
FAX NUMBER: (860) 676-1814 Taxpayer ID# 94321-7016
DATE ACCEPTED: 9/24/98 FAX NUMBER: (650) 343-2931
DATED: 9/18/98
-11-
STATE OF CALIFORNIA
COUNTY OF SAN MATEO
I acknowledge that DANIEL V. SANTI, who stated that he is CHAIRMAN
of the Borrower named above, signed this Master Loan and Security Agreement in
my presence today: 09/18/98. He acknowledged to me that his signature on this
Master Loan and Security Agreement was authorized by a valid resolution or other
valid authorization from Borrower's board of directors or other governing body.
/s/ Kenneth E. Constantino
---------------------------
Notary Public
[SEAL]
-12-
EXHIBIT A
Prepayment Schedule
To
Master Loan and Security Agreement No. S6880
The Prepayment premium shall be determined by multiplying the outstanding
principal balance of the Loan by the percentage amount shown below which
corresponds with the month during the Term in which the prepayment is to be
made:
Month of term Percentage Amount
------------- -----------------
1 through 24 No Prepayment
25 through 36 2.75%
37 through 48 1.50%
Borrower (initial) /s/ [INITIALS]
--------
Lender (initial)
----------
EXHIBIT B
Casualty Value Schedule
To
Master Loan and Security Agreement No. S6880
The Casualty Value for the Collateral (or any item thereof) shall be determined
by multiplying the outstanding principal balance of the Loan by the percentage
amount shown below which corresponds with the month during the Term in which the
determination is to be made:
Month of Term Percentage Amount
------------- -----------------
1 through 12 4.25%
13 through 24 3.25%
25 through 36 2.75%
37 through 48 1.50%
Borrower (initial) /s/ [INITIALS]
----------
Lender (initial)
-----------