Master Lease - FINOVA Technology Finance Inc. and Trimeris Inc.
[FINOVA LOGO (Registered Trademark)]
[Financial Innovators]
FINOVA Technology Finance, Inc.
10 Waterside Drive
Farmington, Connecticut 06032-3065
(860) 676-1818
MASTER LEASE No. S6610, Dated May 28, 1998
FINOVA Technology Finance, Inc. ("we", "us" or "FINOVA") agrees to lease to
Trimeris, Inc. ("you" or "Lessee") and you agree to lease from us, the Equipment
described in any schedule to this Lease (a "Schedule"). The Equipment also
includes any replacement parts, repairs, additions and accessories that you may
add to the Equipment. We may treat any Schedule as a separate lease containing
all of the provisions of this Lease.
1. PURCHASING AND INSTALLING THE EQUIPMENT
We will purchase the Equipment from the Supplier you chose or you in the event
of a Sale and Leaseback. The Supplier will deliver the Equipment to you at your
expense. You will properly install the Equipment at your expense at the
location(s) indicated in the Schedule.
2. TERM.
o The Term of each Schedule begins when any of the Equipment on that Schedule
is delivered to you, or a later date that we agree to in writing.
o The Term continues until you fully perform all of your obligations under
this Lease and the Schedule.
o If the Equipment is not delivered, installed and accepted by you by the
date indicated in the Schedule , we may terminate this Lease and the
Schedule as to the Equipment that was not delivered, installed and accepted
by giving you 10 days written notice of termination. Any advance rental
payment you may have paid us is nonrefundable, even if the Term never
starts or if we rightfully terminate this Lease or the Schedule.
o Before we make any progress payment or final payment for the Equipment on
any Schedule, we require the following:
o That no payment is past due to us under any lease, loan or other financial
arrangement that you or any guarantor have with us or with FINOVA Capital
Corporation.
o That you are complying with all the terms of this Lease.
o That we have received all the documents we requested, including the signed
Schedule and Delivery and Acceptance Certificate.
o That there has been no 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.
3. RENT
o The rent is indicated on the Schedule. The rent is payable periodically in
advance from time to time (for example, monthly). You agree that you owe us
the total of all of these rent payments over the Term of the Schedule.
o The first rent payment is due at the beginning of the Term or at a later
date that we agree to in writing. Subsequent rent payments are due on the
same day of each successive period until you pay us in full all of the rent
and any other charges or expenses you owe us.
o If the first rent payment is due later than the beginning of the Term, you
will also pay us interim rent on the first rent payment date. The interim
rent will be for the period from the beginning of the Term until the date
that the first rent payment is due. Interim rent will be calculated at the
same rate as the regular rent payment, but on a daily basis for the number
of days for which interim rent is due.
<PAGE>
o YOUR OBLIGATION TO PAY US ALL RENT IS ABSOLUTE AND UNCONDITIONAL. YOU ARE
NOT EXCUSED FROM PAYING THE RENT, IN FULL, FOR ANY REASON. YOU AGREE THAT
YOU HAVE NO DEFENSE FOR FAILURE TO PAY THE RENT AND YOU WILL NOT MAKE ANY
COUNTERCLAIMS OR SETOFFS TO AVOID PAYING THE RENT.
4. NON-CANCELABLE LEASE. YOU AGREE THAT YOU MAY NOT CANCEL OR TERMINATE THIS
LEASE OR ANY SCHEDULE.
5. PROTECTION OF OUR INTEREST IN THE EQUIPMENT; FEES.
o The Equipment is our property. It will remain our property. You will not
own the Equipment unless the Schedule gives you an option to purchase the
Equipment and you have exercised that option and paid us in full for the
Equipment and any other amounts you may owe us. If we request, you will put
labels stating "PROPERTY OF FINOVA" on the Equipment where they are clearly
visible.
o You give us permission to add to this Lease or any Schedule the serial
numbers and other information about the Equipment.
o While this Lease is intended to be a lease (and not a loan), you grant us a
security interest in the Equipment to protect our interest in the Equipment
if this Lease is later determined to be a security agreement. You give us
permission to file this Lease or a Uniform Commercial Code financing
statement, at your expense, in order to perfect this security interest. You
also give us permission to sign your name on the Uniform Commercial Code
financing statements where this is permitted by law.
o 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 Lease 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 Lease.
o At your expense, you will defend our ownership rights in the Equipment
against, and keep the Equipment free of, any legal process, liens, 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.
o You will notify us at least 15 days before you change the address of your
principal executive office.
o You will promptly sign and return additional documents that we may request
in order to protect our interest in the Equipment.
o The Equipment 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 Equipment to become part of real estate or a fixture.
6. CARE, USE, LOCATION AND ALTERATION OF THE EQUIPMENT
o You will make sure that the Equipment is maintained in good operating
condition, and that it is serviced, repaired and overhauled when this is
necessary to keep the Equipment 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.
o You will maintain service logs for the Equipment and permit us to inspect
the Equipment, the service logs and service reports. You give us permission
to make copies of the service logs and service reports.
o We will give you prior notice if we, or our agent, want to inspect the
Equipment 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 Equipment, but only for one inspection per year. If we find
during an inspection that you are not complying with this Lease, you will
pay our travel, meals and lodging costs, our salary costs, and the costs
and fees of our agents for
2
<PAGE>
reinspection. You will promptly cure any problems with the Equipment that
are discovered during our inspection.
o You will use the Equipment only for business purposes. You will obey all
legal and regulatory requirements in your use of the Equipment.
o You will make all additions, modifications and improvements to the
Equipment that are required by law or government regulation. Otherwise, you
will not alter the Equipment without our written permission. You will
replace all worn, lost, stolen or destroyed parts of the Equipment with
replacement parts that are as good or better than the original parts. The
new parts will become our property upon replacement.
o You will not remove the Equipment from the location indicated in the
Schedule without our written permission.
7. RETURN OF EQUIPMENT. UNLESS OTHERWISE STATED IN THE SCHEDULE:
o You must give us written notice at least 120 days before the end of the
Term if you want to purchase the equipment from us (assuming the Schedule
provides you with an option to purchase the Equipment).
o You must give us written notice at least 120 days before the end of the
Term if you want to return the Equipment to us.
o If you do not give us written notice at least 120 days before the end of
the Term either that you want to purchase or that you want to return the
Equipment, you will continue to rent the Equipment and this Lease and the
Schedule will be automatically extended until 120 days after we receive
your notice. The rent will be the fair market rental value of the
Equipment, as determined by us. Unless we notify you otherwise, the fair
market rental value will not exceed the rent then being charged under this
Lease and the Schedule.
o If you do give us 120 days written notice that you want to purchase the
Equipment but you do not pay us the purchase price, you will continue to
rent the Equipment. The rent will be the fair market rental value of the
Equipment, as determined by us. You will continue to pay us this rent until
you have paid the purchase price for the Equipment. The rent payments will
not be credited to the purchase price.
o If you do give us 120 days written notice that you want to return the
Equipment to us, but you do not return the Equipment in compliance with the
return conditions contained in the next paragraph, you will continue to
rent the Equipment. The rent will be the fair market rental value of the
Equipment, as determined by us. You will continue to pay us this rent until
you have returned the Equipment to us in compliance with these return
conditions.
o Return conditions: - You will return the Equipment, 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 6 above. The Equipment will not be subject to any liens when it is
returned
* You will pack or crate the Equipment 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
Equipment.
* At our request, you will provide us with up to 60 days free storage of
the Equipment at your location, and will let us (or our agent) have
access to the Equipment in order to inspect it and sell it.
* You will pay us what it costs us to repair the Equipment if you do not
return it in the required condition.
3
<PAGE>
8. RISK OF LOSS
o You have the complete risk of loss or damage to the Equipment. Loss or
damage to the Equipment will not relieve you of your obligation to pay
rent.
o If any Equipment is lost or damaged, you have two choices (although if you
are in default under this Lease, we and not you will have the two options).
The choices are:
(1) Repair or replace the damaged or lost Equipment so that, once again, we own
Equipment in good operating condition and have clear title to it.
(2) Pay us the present value (as of the date of payment) of the remaining rent
payments and our residual interest in the Equipment. 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, you (or
your insurer) may keep the Equipment for salvage purposes, on an "AS IS,
WHERE IS" basis.
9. INSURANCE
o Until you have properly returned the Equipment to us, you will keep it
insured. The amount of the insurance, the coverage, and the insurance
company must be acceptable to us.
o 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 may insure the Equipment beyond the end of
the Term.
o Insurance proceeds may be used to repair or replace damaged or lost
Equipment or to pay us the present value of the rent and our residual
interest in the Equipment. (See section 8, "Risk of Loss", above.)
o 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 Equipment.
10. TAXES
o You will pay all sales, use, excise, stamp, documentary and ad valorum
taxes, license and registration fees, assessments, fines, penalties and
similar charges imposed on the ownership, possession, use or lease of the
Equipment.
o You will pay all taxes (other than our federal or state net income taxes)
imposed on you or on us or the rent payments.
o You will reimburse us for any of these taxes that we pay or advance.
o Unless we notify you otherwise, we will file and pay for any personal
property taxes on the Equipment. You will reimburse us for the full amount
of these taxes, without regard to early payment discount. We may estimate
the amount of these taxes in advance and bill you periodically in advance
for these taxes.
11. INDEMNITY
o You will indemnify us, defend us and hold us harmless. This applies to any
and all claims, expenses and attorney's fees concerning or arising from the
Equipment, this Lease, or any Schedule. It includes any claims concerning
the manufacture, selection, delivery, possession, use, operation or return
of the Equipment.
o This obligation of yours to indemnify us continues even after the Term is
over.
12. DEFAULT
You are in default if any of the following happens:
o You do not pay us, when it is due, any rent payment or other payment that
you owe us under this Lease, any Schedule, or any other lease, loan or
other financial arrangement that you have with us or with FINOVA Capital
Corporation.
o 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.
4
<PAGE>
o You do something you are not permitted to do, or you fail to do anything
that is required of you, under this Lease, any Schedule or any other lease,
loan or other financial arrangement that you have with us.
o An event of default occurs for any other lease, loan or obligation of yours
that exceeds $25,000.
o You file bankruptcy, or involuntary bankruptcy is filed against you or any
guarantor and is not dismissed within 60 days.
o You are subject to any other insolvency proceeding other than bankruptcy
(for example, a receivership action or an assignment for benefit of
creditors) and such proceeding that is involuntary is not dismissed within
60 days.
o Without our permission, which shall not be unreasonably withheld or
delayed, you sell all or a substantial part of its assets, merge or
consolidate, or a majority of your voting stock or interests is
transferred.
o 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.
13. 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:
o Require you to immediately pay us all rent for the entire Term for any or
all Schedules.
o Require you to immediately pay us all amounts that you are required to pay
us for the entire Term of any other leases, loans or other financial
arrangements that you have with us.
o Sue you for all rent, purchase obligation and other amounts you owe us
Future rent and purchase obligation will be discounted to present value
using a discount rate of five (5%) percent per year.
o Require you at your expense to assemble the Equipment at a location we
request in the United States of America.
o Remove and repossess the Equipment from where it is located, without demand
or notice, or make the Equipment inoperable. We have your permission to
remove any physical obstructions to removal of the Equipment. We may also
disconnect and separate all Equipment from other property. No court order,
court hearing or "legal process" will be required for us to repossess the
Equipment. You will not be entitled to any damages resulting from removal
or repossession of the Equipment. We may use, ship, store, repair or lease
any Equipment that we repossess. We may sell any repossessed Equipment at
private or public sale. You give us permission to show the Equipment to
buyers at your location free of charge during normal business hours. If we
do this, we do not have to remove the Equipment from your location. If we
repossess the Equipment and sell it, we will give you credit for the net
sale price, after subtracting our costs of repossessing and selling the
Equipment. If we rent the Equipment to somebody else, we will give you
credit for the net rent received, after subtracting our costs of
repossessing and renting the Equipment, but the credit will be discounted
to present value using the discount rate that we used in calculating your
rental payment under the Schedule for the Equipment. The credit will be
applied against what you owe us under this Lease, the Schedules and any
other leases, loans or other financial arrangements that you have with us.
If the credit exceeds the amount you owe under this Lease, the Schedules
and any other leases, loans or other financial arrangements that you have
with us, we will refund the amount of the excess to you.
o You will also pay us the following:
o All our expenses of enforcing our remedies. This includes all our expenses
to repossess, store, ship, repair and sell the Equipment.
5
<PAGE>
o Our reasonable attorney's fees and expenses.
o Default interest on everything you owe us from the date of your default to
the date on which we are paid in full. The "default interest rate" will be
one and one-half (1.5%) percent per month. If this interest rate exceeds
the highest legal interest rate, you will only be required to pay us
default interest at the highest legal interest rate.
You realize that the damages we could suffer as a result of your default are
very uncertain. You also realize that the value of an unexpired lease Term is
difficult or impossible to calculate. This is why we have agreed with you in
advance on the discount rates and default interest 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."
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.
14. PERFORMING YOUR OBLIGATIONS IF YOU DO NOT
If you do not perform one or more of your obligations under this Lease or a
Schedule, 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
interest rate on that amount. This will be additional "rent" that you will owe
us and you will pay it at the same time that your next rent payment is due.
15. ASSIGNMENT
WE MAY ASSIGN THIS LEASE OR ANY SCHEDULE OR ANY RENT PAYMENTS WITHOUT YOUR
PERMISSION.
WE MAY GRANT A SECURITY INTEREST IN THE EQUIPMENT WITHOUT YOUR PERMISSION.
THE PERSON TO WHOM WE ASSIGN IS CALLED THE "ASSIGNEE." THE ASSIGNEE WILL NOT
HAVE ANY OF OUR OBLIGATIONS UNDER THIS LEASE. YOU WILL NOT BE ABLE TO RAISE ANY
DEFENSE, COUNTERCLAIM OR OFFSET AGAINST THE ASSIGNEE.
AFTER ASSIGNMENT YOU MAY "QUIETLY ENJOY" THE USE OF THE EQUIPMENT SO LONG AS YOU
ARE NOT IN DEFAULT.
UNLESS YOU RECEIVE OUR WRITTEN PERMISSION, YOU MAY NOT ASSIGN OR TRANSFER YOUR
RIGHTS UNDER THIS LEASE OR ANY SCHEDULE. YOU ALSO ARE NOT ALLOWED TO SUBLET THE
EQUIPMENT OR LET ANYBODY ELSE USE IT UNLESS WE GIVE YOU OUR WRITTEN PERMISSION.
16. UNIFORM COMMERCIAL CODE DISCLAIMERS OF WARRANTIES AND WAIVERS
WE DID NOT MANUFACTURE OR SUPPLY THE EQUIPMENT. WE ARE NOT A DEALER IN THE
EQUIPMENT. INSTEAD, YOU CHOSE THE EQUIPMENT.
WE DO NOT MAKE ANY WARRANTY AS TO THE EQUIPMENT. 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 ANY LOSS, DAMAGE, OR INJURY TO YOU OR ANYBODY
ELSE AS A RESULT OF ANY DEFECTS, HIDDEN OR OTHERWISE, IN THE EQUIPMENT 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.
6
<PAGE>
WE MAKE NO WARRANTY AS TO THE TREATMENT OF THIS LEASE FOR TAX OR ACCOUNTING
PURPOSES.
If the Equipment is unsatisfactory, you will continue to pay us all rent 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. You may
use our rights under any Manufacturer or Supplier warranties on the Equipment to
get it repaired or replaced. 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 Lease or any Schedule, or give up any of our rights.
17. UNIFORM COMMERCIAL CODE ARTICLE 2A PROVISIONS.
This Lease is a "Finance Lease" under Article 2A of the Uniform Commercial Code.
You agree that (a) we have advised you of the identity of the Supplier, (b) you
may have rights under the "supply contract" under which we are purchasing the
Equipment from the Supplier and (c) you may contact the Supplier for a
description of these rights.
YOU WAIVE ANY AND ALL OF YOUR RIGHTS AND REMEDIES UNDER ARTICLE 2A OF THE
UNIFORM COMMERCIAL CODE, INCLUDING SECTIONS 2A-508 THROUGH 2A-522 OF THE UNIFORM
COMMERCIAL CODE.
18. ACCEPTANCE BY FINOVA, GOVERNING LAW, JURISDICTION, VENUE, SERVICE OF
PROCESS, WAIVER OF JURY TRIAL.
THIS LEASE WILL ONLY BE BINDING WHEN WE HAVE ACCEPTED IT IN WRITING.
THIS LEASE IS GOVERNED BY THE LAWS OF THE STATE OF ARIZONA, THE STATE IN WHICH
OUR OFFICE IS LOCATED IN WHICH FINAL APPROVAL OF THE TERMS AND CONDITIONS OF
THIS LEASE OCCURED AND FROM WHICH PAYMENT FOR THE EQUIPMENT WILL BE ORDERED
HOWEVER, IF THIS LEASE IS UNENFORCEABLE UNDER ARIZONA LAW, IT WILL INSTEAD BE
GOVERNED BY THE LAWS OF THE STATE IN WHICH THE EQUIPMENT 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.
19. INFORMATION SUPPLIED BY YOU AND ANY GUARANTOR
o 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.
o You have supplied us with information about the Equipment. You promise to
us that the amount we are paying for the 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.
o 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:
o Quarterly balance sheet and statements of earnings and cash flow - within
45 days after the
7
<PAGE>
end of your first three fiscal quarters in each fiscal year. These will be
certified by the chief financial officer.
o 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.
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.
20. BOARD MEETINGS/STOCKHOLDERS' MEETINGS
You will give to us notice of all meetings of your stockholders (or if you are a
partnership or limited liability company, of your partners or members). You will
also send us copies of all documents sent to the stockholders, partners or
members for these meetings at the same time you send the documents to them. We
have your permission to attend and observe (but not participate in) all meetings
of your stockholders (or, if you are a partnership or limited liability company,
of your partners or members).
21. NOTICES
We may give you written notice in person, by mail, by overnight delivery
service, or by fax. Notice will be sent to your address below your signature.
Mail notice will be effective three (3) days after we mail it with prepaid
postage to the right address. 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.
You may give us notice the same way that we may give you notice.
22. GENERAL
This Lease benefits our successors and assigns. This Lease benefits only those
successors and assigns of yours that we have approved in writing.
This Lease binds your successors and assigns. This Lease binds only those
successors and assigns of ours that clearly assume our obligations in writing.
TIME IS OF THE ESSENCE OF THIS LEASE.
This Lease and all of the Schedules is the entire agreement between you and us
concerning the Equipment.
Only an employee of FINOVA who is authorized by corporate resolution or policy
may modify or amend this Lease or any Schedule 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 Lessee under this Lease, then each of
you is jointly and severally liable for your obligations under this Lease.
This Lease 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 Lease is unenforceable, then that provision must be
deleted. Only unenforceable provisions are to be deleted. The rest of the lease
will remain as written.
23. COVENANT
o 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 will provide to
us assurance reasonably acceptable to us that your computer-based systems,
embedded microchips and other processing capabilities are year 2000
compatible.
24. REPRESENTATIONS AND WARRANTIES
You represent and warrant to us as follows:
o 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,
8
<PAGE>
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.
o 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.
25. 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.
LESSOR: LESSEE:
FINOVA TECHNOLOGY FINANCE, INC. TRIMERIS, INC.
10 WATERSIDE DRIVE 4727 UNIVERSITY DRIVE
FARMINGTON, CONNECTICUT 06032-3065 DURHAM, NC 27707
BY:___________________________
BY:________________________________
PRINTED
PRINTED NAME:_________________________
NAME:______________________________
TITLE:________________________
TITLE:_____________________________
Taxpayer
FAX NUMBER: (860) 676-1814 ID#___________________________
DATE FAX
ACCEPTED:__________________________ NUMBER:_______________________
DATED:________________________
STATE OF _________________
COUNTY OF _______________
I acknowledge that __________________, who stated that he/she is
_______________________ of the Lessee named above, signed this Master Lease
Agreement in my presence today: ____________________. He/she acknowledged to me
that his/her signature on this Master Lease Agreement was authorized by a valid
resolution or other valid authorization from Lessee's board of directors or
other governing body.
________________________
Notary Public
[SEAL]
9