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EXHIBIT 10.21
MASTER LEASE AGREEMENT
Lessor: TRANSAMERICA BUSINESS CREDIT CORPORATION
RIVERWAY II
WEST OFFICE TOWER
0000 XXXX XXXXXXX XXXX
XXXXXXXX, XXXXXXXX 00000
Lessee: ABGENIX, INC.
000 XXXXXXXX XXXXX
XXXXXX XXXX, XXXXXXXXXX 00000
The lessor pursuant to this Master Lease Agreement ("Agreement") dated as of
March 27, 1997, is Transamerica Business Credit Corporation ("Lessor"). All
equipment, together with all present and future additions, parts, accessories,
attachments, substitutions, repairs, improvements and replacements thereof or
thereto, which are the subject of a Lease (as defined in the next sentence)
shall be referred to as "Equipment." Simultaneous with the execution and
delivery of this Agreement, the parties are entering into one or more Lease
Schedules (each, a "Schedule") which refer to and incorporate by reference this
Agreement, each of which constitutes a lease (each, a "Lease") for the Equipment
specified therein. Additional details pertaining to each Lease are specified in
the applicable Schedule. Each Schedule that the parties hereafter enter into
shall constitute a Lease. Lessor has no obligation to enter into any additional
leases with, or extend any future financing to, Lessee.
1. LEASE. Subject to and upon all of the terms and conditions of this
Agreement and each Schedule, Lessor hereby agrees to lease to Lessee and Lessee
hereby agrees to lease from Lessor the Equipment for the Term (as defined in
Paragraph 2 below) thereof.
2. TERM. Each Lease shall be effective and the term of each Lease ("Term")
shall commence on the commencement date specified in the applicable Schedule
and, unless sooner terminated (as hereinafter provided), shall expire at the end
of the term specified in such Schedule; provided, however, that obligations due
to be performed by Lessee during the Term shall continue until they have been
performed in full. Schedules will only be executed after the delivery of the
Equipment to Lessee or upon completion of deliveries of items of such Equipment
with aggregate cost of not less than $50,000.
3. RENT. Lessee shall pay as rent to Lessor, for use of the Equipment
during the Term or Renewal Term (as defined in Paragraph 8), rental payments
equal to the sum of all rental payments including, without limitation, security
deposits, advance rents and interim rents payable in the amounts and on the
dates specified in the applicable Schedule ("Rent"). If any Rent or other amount
payable by Lessee is not paid within five days after the day on which it becomes
payable, Lessee will pay on demand, as a late charge, an amount equal to 5% of
such unpaid Rent or other amount but only to the extent permitted by applicable
law. All payments provided for herein shall be payable to Lessor at its address
specified above, or at any other place designated by Lessor.
4. LEASE NOT CANCELABLE; LESSEE'S OBLIGATIONS ABSOLUTE. No Lease may be
canceled or terminated except as expressly provided herein. Lessee's obligation
to pay all Rent due or to become due hereunder shall be absolute and
unconditional and shall not be subject to any delay, reduction, set-off,
defense, counterclaim or recoupment for any reason whatsoever, including any
failure of the Equipment or any representations by the manufacturer or the
vendor thereof. If the Equipment is unsatisfactory for any reason, Lessee
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shall make any claim solely against the manufacturer or the vendor thereof and
shall, nevertheless, pay Lessor all Rent payable hereunder.
5. SELECTION AND USE OF EQUIPMENT. Lessee agrees that it shall be
responsible for the selection, use of, and results obtained from, the Equipment
and any other associated equipment or services.
6. WARRANTIES. LESSOR MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR
IMPLIED, AS TO ANY MATTER WHATSOEVER, INCLUDING, WITHOUT LIMITATION, THE DESIGN
OR CONDITION OF THE EQUIPMENT OR ITS MERCHANTABILITY, SUITABILITY, QUALITY OR
FITNESS FOR A PARTICULAR PURPOSE, AND HEREBY DISCLAIMS ANY SUCH WARRANTY. LESSEE
SPECIFICALLY WAIVES ALL RIGHTS TO MAKE A CLAIM AGAINST LESSOR FOR BREACH OF ANY
WARRANTY WHATSOEVER. LESSEE LEASES THE EQUIPMENT "AS IS." IN NO EVENT SHALL
LESSOR HAVE ANY LIABILITY FOR, NOR SHALL LESSEE HAVE ANY REMEDY AGAINST LESSOR
FOR, ANY LIABILITY, CLAIM, LOSS, DAMAGE OR EXPENSE CAUSED DIRECTLY OR INDIRECTLY
BY THE EQUIPMENT OR ANY DEFICIENCY OR DEFECT THEREOF OR THE OPERATION,
MAINTENANCE OR REPAIR THEREOF OR ANY CONSEQUENTIAL DAMAGES AS THAT TERM IS USED
IN SECTION 2-719(3) OF THE MODEL UNIFORM COMMERCIAL CODE, AS AMENDED FROM TIME
TO TIME ("UCC"). Lessor grants to Lessee, for the sole purpose of prosecuting a
claim, the benefits of any and all warranties made available by the manufacturer
or the vendor of the Equipment to the extent assignable.
7. DELIVERY. Lessor hereby appoints Lessee as Lessor's agent for the sole
and limited purpose of accepting delivery of the Equipment from each vendor
thereof. Lessee shall pay any and all delivery and installation charges. Lessor
shall not be liable to Lessee for any delay in, or failure of, delivery of the
Equipment.
8. RENEWAL. So long as no Event of Default or event which, with the giving
of notice, the passage of time, or both, would constitute an Event of Default,
shall have occurred and be continuing, each Lease may be renewed for a term of
twelve months (the "Renewal Term"), on the terms and conditions of this
Agreement or as set forth in the applicable Schedule, by Lessee giving Lessor
not less than 45 days prior written notice of Lessee's intent to renew such
Lease; provided, however, that Obligations due to be performed by the Lessee
during the Renewal Term shall continue until they have been performed in full.
The monthly rental payments for the Renewal Term shall be equal to 1.0% of the
equipment cost plus any monthly sales or use tax. Any notice given under this
Paragraph 8 by Lessee shall be irrevocable.
9. PURCHASE OPTION. So long as no Event of Default or event which, with the
giving of notice, the passage of time, or both, would constitute an Event of
Default, shall have occurred and be continuing, if Lessee shall not have
exercised its renewal option under Paragraph 8 hereof, Lessee shall purchase
all, but not less than all, the Equipment covered by the applicable Lease on the
date specified therefor in the applicable Schedule ("Purchase Date"). The
purchase price for such Equipment shall be its fair market value on an
"In-place, In-use" basis, as mutually agreed by Lessor and Lessee, or, if they
cannot agree, as determined by an independent appraiser selected by Lessor and
approved by Lessee, which approval will not be unreasonably delayed or withheld,
or as otherwise determined in the manner specified in the applicable Schedule.
Lessee shall pay the cost of any such appraisal. So long as no Event of Default
or event which, with the giving of notice, the passage of time, or both, would
constitute an Event of Default, shall have occurred and be continuing, Lessee
may, upon written notice to Lessor received at least one hundred eighty days
prior to the expiration of the Renewal Term, purchase all, but not less than
all, the Equipment covered by the applicable Schedule by the last date of the
Renewal Term (the "Alternative Purchase Date") at a purchase price equal to its
then fair market value on an "In-place, In-use" basis. On the Purchase Date or
the Alternative Purchase Date, as the case may be, for any Equipment, Lessee
shall pay to Lessor the purchase price, together with all sales and other taxes
applicable to the transfer of the Equipment and any other amount payable and
arising hereunder, in immediately available funds, whereupon Lessor shall
transfer to Lessee, without recourse or warranty of any kind, express or
implied, all of Lessor's right, title and interest in and to such Equipment on
an "As Is, Where Is" basis.
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10. OWNERSHIP; INSPECTION; MARKING; FINANCING STATEMENTS. Lessee shall
affix to the Equipment any labels supplied by Lessor indicating ownership of
such Equipment. The Equipment is and shall be the sole property of Lessor.
Lessee shall have no right, title or interest therein, except as lessee under a
Lease. The Equipment is and shall at all times be and remain personal property
and shall not become a fixture. Lessee shall obtain and record such instruments
and take such steps as may be necessary to prevent any person from acquiring any
rights in the Equipment by reason of the Equipment being claimed or deemed to be
real property. Upon request by Lessor, Lessee shall obtain and deliver to Lessor
valid and effective waivers, in recordable form, by the owners, landlords and
mortgagees of the real property upon which the Equipment is located or
certificates of Lessee that it is the owner of such real property or that such
real property is neither leased nor mortgaged. Lessee shall make the Equipment
and its maintenance records available for inspection by Lessor at reasonable
times and upon reasonable notice. Lessee shall execute and deliver to Lessor for
filing any UCC financing statements or similar documents Lessor may reasonably
request.
11. EQUIPMENT USE. Lessee agrees that the Equipment will be operated by
competent, qualified personnel in connection with Lessee's business for the
purpose for which the Equipment was designed and in accordance with applicable
operating instructions, laws and government regulations, and that Lessee shall
use all reasonable precautions to prevent loss or damage to the Equipment from
fire and other hazards. Lessee shall procure and maintain in effect all orders,
licenses, certificates, permits, approvals and consents required by federal,
state or local laws or by any governmental body, agency or authority in
connection with the delivery, installation, use and operation of the Equipment.
12. MAINTENANCE. Lessee, at its sole cost and expense, shall keep the
Equipment in a suitable environment as specified by the manufacturer's
guidelines or the equivalent and meet all recertification requirements, and
shall maintain the Equipment in its original condition and working order,
ordinary wear and tear excepted. At the reasonable request of Lessor, Lessee
shall furnish all proof of maintenance.
13. ALTERATION; MODIFICATIONS; PARTS. Lessee may alter or modify the
Equipment only with the prior written consent of Lessor. Any alteration shall be
removed and the Equipment restored to its normal, unaltered condition at
Lessee's expense (without damaging the Equipment's originally intended function
or its value) prior to its return to Lessor. Any part installed in connection
with warranty or maintenance service or which cannot be removed in accordance
with the preceding sentence shall be the property of Lessor.
14. RETURN OF EQUIPMENT. Except for Equipment that has suffered a Casualty
Loss (as defined in Paragraph 15 below) and is not required to be repaired
pursuant to Paragraph 15 below or Equipment purchased by Lessee pursuant to
Paragraph 9 above, upon expiration or termination of the Term or the Renewal
Term of a Lease, or upon demand by Lessor pursuant to Paragraph 22 below, Lessee
shall contact Lessor for shipping instructions and, at Lessee's own risk,
immediately return the Equipment, freight prepaid, to a location in the
continental United States specified by Lessor. At the time of such return to
Lessor, the Equipment shall (i) be in the operating order, repair and condition
as required by or specified in the original specifications and warranties of
each manufacturer and vendor thereof, ordinary wear and tear excepted, and meet
all recertification requirements and (ii) be capable of being promptly assembled
and operated by a third party purchaser or third party lessee without further
repair, replacement, alterations or improvements, and in accordance and
compliance with any and all statutes, laws, ordinances, rules and regulations of
any governmental authority or any political subdivision thereof applicable to
the use and operation of the Equipment. Except as otherwise provided under
Paragraph 9 hereof, at least one hundred eighty days before the expiration of
the Renewal Term, Lessee shall give Lessor notice of its intent to return the
Equipment at the end of such Renewal Term. During the one hundred eighty-day
period prior to the end of a Term or the Renewal Term, Lessor and its
prospective purchasers or lessees shall have, upon not less than two business
days' prior notice to Lessee and during normal business hours, or at any time
and without prior notice upon the occurrence and continuance of an Event of
Default, the right of access to the premises on which the Equipment is located
to inspect the Equipment, and Lessee shall cooperate in all other respects with
Lessor's remarketing of the Equipment. The provisions of this Paragraph 14 are
of the essence of the Lease, and upon application to any court of equity having
jurisdiction in the premises, Lessor shall be entitled to a decree against
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Lessee requiring specific performance of the covenants of Lessee set forth in
this Paragraph 14. If Lessee fails to return the Equipment when required, the
terms and conditions of the Lease shall continue to be applicable and Lessee
shall continue to pay Rent until the Equipment is received by Lessor.
15. CASUALTY INSURANCE; LOSS OR DAMAGE. Lessee will maintain, at its own
expense, liability and property damage insurance relating to the Equipment,
insuring against such risks as are customarily insured against on the type of
equipment leased hereunder by businesses in which Lessee is engaged in such
amounts, in such form, and with insurers reasonably satisfactory to Lessor;
provided, however, that the amount of insurance against damage or loss shall not
be less than the greater of (a) the replacement value of the Equipment and (b)
the stipulated loss value of the Equipment specified in the applicable Schedule
("Stipulated Loss Value"). Each liability insurance policy shall provide
coverage (including, without limitation, personal injury coverage) of not less
than $1,000,000 for each occurrence, and shall name Lessor as an additional
insured; and each property damage policy shall name Lessor as sole loss payee
and all policies shall contain a clause requiring the insurer to give Lessor at
least thirty days prior written notice of any alteration in the terms or
cancellation of the policy. Lessee shall furnish a copy of each insurance policy
(with endorsements) or other evidence satisfactory to Lessor that the required
insurance coverage is in effect; provided, however, Lessor shall have no duty to
ascertain the existence of or to examine the insurance policies to advise Lessee
if the insurance coverage does not comply with the requirements of this
Paragraph. If Lessee fails to insure the Equipment as required, Lessor shall
have the right but not the obligation to obtain such insurance, and the
reasonable cost of the insurance shall be for the account of Lessee due as part
of the next due Rent. Lessee consents to Lessor's release, upon its failure to
obtain appropriate insurance coverage, of any and all information necessary to
obtain insurance with respect to the Equipment or Lessor's interest therein.
Until the Equipment is returned to and received by Lessor as provided in
Paragraph 14 above, Lessee shall bear the entire risk of theft or destruction
of, or damage to, the Equipment including, without limitation, any condemnation,
seizure or requisition of title or use ("Casualty Loss"). No Casualty Loss shall
relieve Lessee from its obligations to pay Rent except as provided in clause (b)
below. When any Casualty Loss occurs, Lessee shall promptly notify Lessor and,
at the option of Lessor, shall promptly (a) place such Equipment in good repair
and working order; or (b) pay Lessor an amount equal to the Stipulated Loss
Value of such Equipment and all other amounts (excluding Rent) payable by Lessee
hereunder, together with a late charge on such amounts at a rate per annum equal
to the rate imputed in the Rent payments hereunder (as reasonably determined by
Lessor) from the date of the Casualty Loss through the date of payment of such
amounts, whereupon Lessor shall transfer to Lessee, without recourse or warranty
(express or implied), all of Lessor's interest, if any, in and to such Equipment
on an "AS IS, WHERE IS" basis. The proceeds of any insurance payable with
respect to the Equipment shall be applied, at the option of Lessor, either
towards (i) repair of the Equipment or (ii) payment of any of Lessee's
obligations hereunder. Lessee hereby appoints Lessor as Lessee's
attorney-in-fact to make claim for, receive payment of, and execute and endorse
all documents, checks or drafts issued with respect to any Casualty Loss under
any insurance policy relating to the Equipment.
16. TAXES. Lessee shall pay when due, and indemnify and hold Lessor
harmless from, all sales, use, excise and other taxes, charges, and fees
(including, without limitation, income, franchise, business and occupation,
gross receipts, licensing, registration, titling, personal property, stamp and
interest equalization taxes, levies, imposts, duties, charges or withholdings of
any nature), and any fines, penalties or interest thereon, imposed or levied by
any governmental body, agency or tax authority upon or in connection with the
Equipment, its purchase, ownership, delivery, leasing, possession, use or
relocation of the Equipment or otherwise in connection with the transactions
contemplated by each Lease or the Rent thereunder, excluding taxes on or
measured by the net income of Lessor. Lessee retains the option to diligently
contest, in good faith, taxes levied, provided that Lessee provides prior
written notice to Lessor and with respect to which adequate reserves are
maintained in accordance with General Accepted Accounting Principles. Upon
request, Lessee will provide proof of payment. Unless Lessor elects otherwise,
Lessor will pay all property taxes on the Equipment for which Lessee shall
reimburse Lessor promptly upon request. Lessee shall timely prepare and file all
reports and returns which are required to be made with respect to any obligation
of Lessee under this Paragraph 16. Lessee shall, to the extent permitted by law,
cause
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all xxxxxxxx of such fees, taxes, levies, imposts, duties, withholdings and
governmental charges to be made to Lessor in care of Lessee. Upon request,
Lessee will provide Lessor with copies of all such xxxxxxxx.
17. LESSOR'S PAYMENT. If Lessee fails to perform its obligations under
Paragraph 15 or 16 above, or Paragraph 23 below, Lessor shall have the right to
substitute performance, in which case, Lessee shall immediately reimburse Lessor
therefor.
18. GENERAL INDEMNITY. Each Lease is a net lease. Therefore, Lessee shall
indemnify Lessor and its successors and assigns against, and hold Lessor and its
successors and assigns harmless from, any and all claims, actions, damages,
obligations, liabilities and all costs and expenses, including, without
limitation, legal fees, incurred by Lessor or its successors and assigns arising
out of each Lease including, without limitation, the purchase, ownership,
delivery, lease, possession, maintenance, condition, use or return of the
Equipment, or arising by operation of law, except that Lessee shall not be
liable for any claims, actions, damages, obligations and costs and expenses
determined by a non-appealable, final order of a court of competent jurisdiction
to have occurred as a result of the gross negligence or willful misconduct of
Lessor or its successors and assigns. Lessee agrees that upon written notice by
Lessor of the assertion of any claim, action, damage, obligation, liability or
lien, Lessee shall assume full responsibility for the defense thereof, provided
that Lessor's failure to give such notice shall not limit or otherwise affect
its rights hereunder. Any payment pursuant to this Paragraph (except for any
payment of Rent) shall be of such amount as shall be necessary so that, after
payment of any taxes required to be paid thereon by Lessor, including taxes on
or measured by the net income of Lessor, the balance will equal the amount due
hereunder. The provisions of this Paragraph with regard to matters arising
during a Lease shall survive the expiration or termination of such Lease.
19. ASSIGNMENT BY LESSEE. Lessee shall not, without the prior written
consent of Lessor, (a) assign, transfer, pledge or otherwise dispose of any
Lease or Equipment, or any interest therein; (b) sublease or lend any Equipment
or permit it to be used by anyone other than Lessee and its employees; or (c)
move any Equipment from the location specified for it in the applicable
Schedule, except that Lessee may move Equipment to another location within the
United States provided that Lessee has delivered to Lessor (A) prior written
notice thereof and (B) duly executed financing statements and other agreements
and instruments (all in form and substance satisfactory to Lessor) necessary or,
in the opinion of the Lessor, desirable to protect Lessor's interest in such
Equipment. Notwithstanding anything to the contrary in the immediately preceding
sentence, Lessee may keep any Equipment consisting of motor vehicles or rolling
stock at any location in the United States.
20. ASSIGNMENT BY LESSOR. Lessor may assign its interest or grant a
security interest in any Lease and the Equipment individually or together, in
whole or in part. If Lessee is given written notice of any such assignment, it
shall immediately make all payments of Rent and other amounts hereunder directly
to such assignee. Each such assignee shall have all of the rights of Lessor
under each Lease assigned to it. Lessee shall not assert against any such
assignee any set-off, defense or counterclaim that Lessee may have against
Lessor or any other person. Except that any modifications to provisions within
the Agreement, requested by the Assignee, must be coordinated and communicated
to Lessee by Lessor.
21. DEFAULT; NO WAIVER. Lessee or any guarantor of any or all of the
obligations of Lessee hereunder (together with Lessee, the "Lease Parties")
shall be in default under each Lease upon the occurrence of any of the following
events (each, an "Event of Default"): (a) Lessee fails to pay within ten days of
when due any amount required to be paid by Lessee under or in connection with
any Lease; (b) any of the Lease Parties fails to perform or observe (i) any of
the terms, covenants or agreement contained in Paragraph 14, 15 and 19 hereof or
(ii) any other term, covenant or agreement under or in connection with a Lease
(other than the other Events of Default specified in this Paragraph 21) and such
failure remains unremedied for fifteen days from the later of (A) the date on
which such Lease Party has given Lessor written notice of such failure and (B)
the date on which such Lease Party knew or should have known of such failure;
(c) any representation made or financial information delivered or furnished by
any of the Lease Parties under or in connection with a Lease shall prove to have
been inaccurate in any material respect when made; (d) any of the Lease Parties
makes an assignment for the benefit of creditors, whether voluntary or
involuntary, or consents to the appointment of a trustee or receiver, or if
either shall
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be appointed for any of the Lease Parties or for a substantial part of its
property without its consent and, in the case of any such involuntary
proceeding, such proceeding remains undismissed or unstayed for forty-five days
following the commencement thereof; (e) any petition or proceeding is filed by
or against any of the Lease Parties under any Federal or State bankruptcy or
insolvency code or similar law and, in the case of any such involuntary petition
or proceeding, such petition or proceeding remains undismissed or unstayed for
forty-five days following the filing or commencement thereof, or any of the
Lease Parties takes any action authorizing any such petition or proceeding; (f)
any of the Lease Parties fails to pay when due any indebtedness for borrowed
money or under conditional sales or installment sales contracts or similar
agreements, leases or obligations evidenced by bonds, debentures, notes or other
similar agreements or instruments to any creditor (including Lessor under any
other agreement) after any and all applicable cure periods therefor shall have
elapsed or there shall exist at any time an Event of Default or other event
which, with the giving of notice or passage of time (or both), would constitute
an Event of Default under the Master Lease Agreement dated as of even date
herewith between Transamerica Business Credit Corporation, as lessor, and Cell
Genesys, Inc. as lessee; (g) any judgment shall be rendered against any of the
Lease Parties which shall remain unpaid or unstayed for a period of sixty days;
(h) any of the Lease Parties shall dissolve, liquidate, wind up or cease its
business, sell or otherwise dispose of all or substantially all of its assets or
make any material change in its lines of business; (i) any of the Lease Parties
shall amend or modify its name, unless such Lease Party delivers to Lessor prior
to any such proposed amendment or modification written notice of such amendment
or modification and within thirty days after such amendment or modification
delivers executed financing statements (in form and substance satisfactory to
the Lessor); (j) any of the Lease Parties shall merge or consolidate with any
other entity or make any material change in its capital structure, in each case
without Lessor's prior written consent, which shall not be unreasonably
withheld; (k) any of the Lease Parties shall suffer any loss or suspension of
any material license, permit or other right or asset or otherwise suffer a
material adverse change in the business, prospects, operations, results of
operations, assets, liabilities or condition (financial or otherwise), fail
generally to pay its debts as they mature, or call a meeting for purposes of
compromising its debts; (l) any of the Lease Parties shall deny or disaffirm its
obligations hereunder or under any of the documents delivered in connection
herewith; (m) there is a change in more than 50% of the ownership of any equity
interests of any of the Lease Parties on the date hereof, except where Cell
Genesys, Inc. owns more than 25% and no other single or beneficial party owns
more than 50% equity interest, or more than 50% of such interest becomes subject
to any contractual, judicial or statutory lien, charge, security interest or
encumbrance; or (n) there shall occur an Event of Default as defined in the
Master Lease Agreement dated as of March 27, 1997, between Lessor and Cell
Genesys, Inc.
22. REMEDIES. Upon the occurrence and continuation of an Event of Default,
Lessor shall have the right, in its sole discretion, to exercise any one or more
of the following remedies: (a) terminate each Lease; (b) declare any and all
Rent and other amounts then due and any and all Rent and other amounts to become
due under each Lease (collectively, the "Lease Obligations") immediately due and
payable; (c) take possession of any or all items of Equipment, wherever located,
without demand, notice, court order or other process of law, and without
liability for entry to Lessee's premises, for damage to Lessee's property or
otherwise; (d) demand that Lessee immediately return any or all Equipment to
Lessor in accordance with Paragraph 14 above, and, for each day that Lessee
shall fail to return any item of Equipment, Lessor may demand an amount equal to
the Rent payable for such Equipment in accordance with Paragraph 14 above; (e)
lease, sell or otherwise dispose of the Equipment in a commercially reasonable
manner, with or without notice and on public or private bid; (f) recover the
following amounts from the Lessee (as damages, including reimbursement of
reasonable costs and expenses, liquidated for all purposes and not as a
penalty): (i) all reasonable costs and expenses of Lessor reimbursable to it
hereunder, including, without limitation, expenses of disposition of the
Equipment, legal fees and all other amounts specified in Paragraph 23 below;
(ii) an amount equal to the sum of (A) any accrued and unpaid Rent through the
later of (1) the date of the applicable default or (2) the date that Lessor has
obtained possession of the Equipment or such other date as Lessee has made an
effective tender of possession of the Equipment to Lessor (the "Default Date")
and (B) if Lessor resells or re-lets the Equipment, Rent at the periodic rate
provided for in each Lease for the additional period
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that it takes Lessor to resell or re-let all of the Equipment; (iii) the present
value of all future Rent reserved in the Leases and contracted to be paid over
the unexpired Term of the Leases discounted at five percent simple interest per
annum; (iv) the reversionary value of the Equipment as of the expiration of the
Term of the applicable Lease as set forth on the applicable Schedule; and (v)
any indebtedness for Lessee's indemnity under Paragraph 18 above, plus a late
charge at the rate specified in Paragraph 3 above, less the amount received by
Lessor, if any, upon sale or re-let of the Equipment; and (g) exercise any other
right or remedy to recover damages or enforce the terms of the Leases. Upon the
occurrence and continuance of an Event of Default or an event which with the
giving of notice or the passage of time, or both, would result in an Event of
Default, Lessor shall have the right, whether or not Lessor has made any demand
or the obligations of Lessee hereunder have matured, to appropriate and apply to
the payment of the obligations of Lessee hereunder all security deposits and
other deposits (general or special, time or demand, provisional or final) now or
hereafter held by and other indebtedness or property now or hereafter owing by
Lessor to Lessee. Lessor may pursue any other rights or remedies available at
law or in equity, including, without limitation, rights or remedies seeking
damages, specific performance and injunctive relief. Any failure of Lessor to
require strict performance by Lessee, or any waiver by Lessor of any provision
hereunder or under any Schedule, shall not be construed as a consent or waiver
of any other breach of the same or of any other provision. Any amendment or
waiver of any provision hereof or under any Schedule or consent to any departure
by Lessee herefrom or therefrom shall be in writing and signed by Lessor.
No right or remedy is exclusive of any other provided herein or permitted
by law or equity. All such rights and remedies shall be cumulative and may be
enforced concurrently or individually from time to time.
23. LESSOR'S EXPENSE. Lessee shall pay Lessor, on demand, all of Lessor's
reasonable expenses (including legal fees and expenses) incurred in connection
with the preparation, execution and delivery of this Agreement and any other
agreement and transaction contemplated hereby and all costs and expenses in
protecting and enforcing Lessor's rights and interests in each Lease and the
Equipment, including, without limitation, legal, collection and remarketing fees
and expenses incurred by Lessor in enforcing the terms, conditions or provisions
of each Lease or, upon the occurrence and continuation of an Event of Default.
24. LESSEE'S WAIVERS. To the extent permitted by applicable law, Lessee
hereby waives any and all rights and remedies conferred upon a lessee by
Sections 2A-508 through 2A-522 of the UCC. To the extent permitted by applicable
law, Lessee also hereby waives any rights now or hereafter conferred by statute
or otherwise which may require Lessor to sell, lease or otherwise use any
Equipment in mitigation of Lessor's damages as set forth in Paragraph 22 above
or which may otherwise limit or modify any of Lessor's rights or remedies under
Paragraph 22. Any action by Lessee against Lessor for any default by Lessor
under any Lease shall be commenced within one year after any such cause of
action accrues.
25. NOTICES; ADMINISTRATION. Except as otherwise provided herein, all
notices, approvals, consents, correspondence or other communications required or
desired to be given hereunder shall be given in writing and shall be delivered
by overnight courier, hand delivery or certified or registered mail, postage
prepaid, if to Lessor, then to Technology Finance Division, 00 Xxxxxxxxx Xxxx
Xxxx, Xxxxxxxxxx, Xxxxxxxxxxx 00000, Attention: Assistant Vice President, Lease
Administration, with a copy to Lessor at Riverway II, West Office Tower, 0000
Xxxx Xxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000, Attention: Legal Department, if to
Lessee, then to Abgenix, Inc., 000 Xxxxxxxx Xxxxx, Xxxxxx Xxxx, Xxxxxxxxxx
00000, Attention: Manger, Finance and Treasury or such other address as shall be
designated by Lessee or Lessor to the other party. All such notices and
correspondence shall be effective when received.
26. REPRESENTATIONS. Lessee represents and warrants to Lessor that (a)
Lessee is duly organized, validly existing and in good standing under the laws
of the State of its incorporation; (b) the execution, delivery and performance
by Lessee of this Agreement are within Lessee's powers, have been duly
authorized by all necessary action, and do not contravene (i) Lessee's
organizational documents or (ii) any law or contractual restriction binding on
or affecting Lessee; (c) no authorization or approval or other action by, and no
notice to or filing with, any governmental authority or regulatory body is
required for the due execution, delivery and performance by Lessee of this
Agreement; (d) each Lease constitutes the legal, valid and binding obligations
of
-7-
8
Lessee enforceable against Lessee in accordance with its terms; (e) the
equipment cost of each item of Equipment does not exceed the fair and usual
price for such type of equipment purchased in like quantity and reflects all
discounts, rebates, and allowances for the Equipment given to the Lessee by the
manufacturer, supplier or any other person including, without limitation,
discounts for advertising, prompt payment, testing or other services; and (f)
all information supplied by Lessee to Lessor in connection herewith is correct
and does not omit any material statement necessary to insure that the
information supplied is not misleading.
27. FURTHER ASSURANCES. (a) Contemporaneously with or prior to the
execution of this Agreement, Lessee shall deliver or cause to be delivered a
continuing, absolute and unconditional guaranty, in form and substance
satisfactorily to Lessor, made by Cell Genesys, Inc. (the "Guarantor") in favor
of Lessor (the "Guaranty"). (b) If, at any time during the Term of any Lease,
Lessor releases the Guarantor of its obligations under the Guaranty and Lessee
thereafter fails to maintain a Cash Position Ratio (as defined in Paragraph
27(c) below) of at least 2.0:1.0., Lessee shall within thirty days of such
failure, and without necessity of a demand or declaration from Lessor, secure an
irrevocable standby letter of credit issued by a financial institution
acceptable to Lessor, naming Lessor as beneficiary, on terms and conditions
acceptable to Lessor, in an amount equal to 100% of the remaining Rent and any
Additional Rent (discounted at five percent simple interest) owed to Lessor. All
fees and expenses charged with respect to the letter of credit as set forth in
the applicable agreement and all fees and expenses, including, without
limitation, attorney's fees, incurred by Lessor in connection with such letter
of credit shall be paid by Lessee. (c) So long as the Guaranty or an irrevocable
standby letter of credit is not in effect, Lessee shall maintain a Cash Position
Ratio of not less than 2.0:1.0. "Cash Position Ratio" shall mean, as of the date
of such calculation, the ratio of (i) Lessee's verifiable aggregate liquid
assets consisting of cash, cash equivalents or investment grade securities which
are fee and clear of any interests, claims or liens (including, without
limitation, restrictions imposed pursuant to financial covenants) in favor of
any person or entity to (ii) the balance of all remaining Rent and any
Additional Rent (discounted at five percent interest) owed to Lessor. Lessee,
upon the request of Lessor, will execute, acknowledge, record or file, as the
case may be, such further documents and do such further acts as may be
reasonably necessary, desirable or proper to carry out more effectively the
purposes of this Agreement. Lessee hereby appoints Lessor as its
attorney-in-fact to execute on behalf of Lessee and authorizes Lessor to file
without Lessee's signature any UCC financing statements and amendments Lessor
deems advisable.
28. FINANCIAL STATEMENTS. Lessee shall deliver to Lessor: (a) as soon as
available, but not later than 120 days after the end of each fiscal year of
Lessee and its consolidated subsidiaries, the consolidated balance sheet, income
statement and statements of cash flows and shareholders equity for Lessee and
its consolidated subsidiaries (the "Financial Statements") for such year,
reported on by independent certified public accountants without an adverse
qualification; and (b) as soon as available, but not later than 60 days after
the end of each of the first three fiscal quarters in any fiscal year of Lessee
and its consolidated subsidiaries, the Financial Statements for such fiscal
quarter, together with a certification duly executed by a responsible officer of
Lessee that such Financial Statements have been prepared in accordance with
generally accepted accounting principles and are fairly stated in all material
respects (subject to normal year-end audit adjustments).
29. CONSENT TO JURISDICTION. Lessee irrevocably submits to the jurisdiction
of any Illinois state or federal court sitting in Illinois for any action or
proceeding arising out of or relating to this Agreement or the transactions
contemplated hereby, and Lessee irrevocably agrees that all claims in respect of
any such action or proceeding may be heard and determined in such Illinois state
or federal court.
30. WAIVER OF JURY TRIAL. LESSEE AND LESSOR IRREVOCABLY WAIVE ALL RIGHT TO
TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
31. FINANCE LEASE. Lessee and Lessor agree that each Lease is a "Finance
Lease" as defined by Section 2A-103(g) of the UCC. Lessee acknowledges that
Lessee has reviewed and approved each written Supply Contract (as defined by UCC
2A-103(y)) covering Equipment purchased from each "Supplier" (as defined by UCC
2A-103(x)) thereof.
-8-
9
32. NO AGENCY. Lessee acknowledges and agrees that neither the manufacturer
or supplier, nor any salesman, representative or other agent of the manufacturer
or supplier, is an agent of Lessor. No salesman, representative or agent of the
manufacturer or supplier is authorized to waive or alter any term or condition
of this Agreement or any Schedule and no representation as to the Equipment or
any other matter by the manufacturer or supplier shall in any way affect
Lessee's duty to pay Rent and perform its other obligations as set forth in this
Agreement or any Schedule.
33. GOVERNING LAW; SEVERABILITY. EACH LEASE SHALL BE GOVERNED BY THE LAWS
OF THE STATE OF ILLINOIS WITHOUT REGARD TO ITS CONFLICT OF LAW PROVISIONS. IF
ANY PROVISION SHALL BE HELD TO BE INVALID OR UNENFORCEABLE, THE VALIDITY AND
ENFORCEABILITY OF THE REMAINING PROVISIONS SHALL NOT IN ANY WAY BE AFFECTED OR
IMPAIRED.
LESSEE ACKNOWLEDGES THAT LESSEE HAS READ THIS AGREEMENT AND THE SCHEDULE
HERETO, UNDERSTANDS THEM, AND AGREES TO BE BOUND BY THEIR TERMS AND CONDITIONS.
FURTHER, LESSEE AND LESSOR AGREE THAT THIS AGREEMENT AND THE SCHEDULES DELIVERED
IN CONNECTION HEREWITH FROM TIME TO TIME ARE THE COMPLETE AND EXCLUSIVE
STATEMENT OF THE AGREEMENT BETWEEN THE PARTIES, SUPERSEDING ALL PROPOSALS OR
PRIOR AGREEMENTS, ORAL OR WRITTEN, AND ALL OTHER COMMUNICATIONS BETWEEN THE
PARTIES RELATING TO THE SUBJECT MATTER HEREOF.
IN WITNESS WHEREOF, the parties hereto have executed or caused this Master
Lease Agreement to be duly executed by their duly authorized officers as of this
_28___ day of __March________, 1997.
ABGENIX, INC.
By: /s/ R. Xxxxx Xxxxx
------------------------------------
Name: R. Xxxxx Xxxxx
Title: President & CEO
Federal Tax ID Number: 00-0000000
TRANSAMERICA BUSINESS CREDIT CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
------------------------------------
Name: Xxxxxx X. Xxxxxxx, Xx.
Title: Executive Vice President
-9-
10
SCHEDULE TO MASTER LEASE AGREEMENT
Dated as of March 27, 1997
Schedule No. 1
LESSOR NAME & MAILING ADDRESS LESSEE NAME & MAILING ADDRESS
Transamerica Business Credit Abgenix, Inc.
Corporation 000 Xxxxxxxx Xxxxx
Xxxxxxxx XX Xxxxxx Xxxx, Xxxxxxxxxx 00000
West Office Tower
0000 Xxxx Xxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Equipment Location (if different than Lessee's address above):
0000 Xxxxxxxxx Xx. Xxxxxxx, Xxxxxxxxxx
This Schedule covers the following described equipment ("Equipment").
See Exhibit II attached hereto and made a part hereof.
The Equipment is hereby leased pursuant to the provisions of the Master Lease
Agreement between the undersigned Lessee and Lessor dated March 27, 1997 (the
"Master Lease"), the terms of which are incorporated herein by reference
thereto, plus the following additional terms, provisions and modifications.
Lessor reserves the right to adjust the monthly payments in accordance with the
Commitment Letter dated as of March 7, 1997, between the Lessor and Lessee, if
the Lessor has not received this Schedule executed by the Lessee within five
business days from the date set forth above.
1. Term (Number of Months) 48 months
2. Equipment Cost $903,584.07
3. Commencement Date March 31, 1997
4. Rate Factor 2.45784% of Equipment Cost
5. Total Rents
6. Advance Rents (first and last) $45,611.62
Monthly rental payments including
monthly sales/use tax will be in the
amount of $22,805.81
and the second such rental payment
will be due on May 1, 1997
and subsequent rental payments will
be due on the same day of each month thereafter.
8. Security Deposit $ None
-10-
11
9. In addition to the monthly rental
payments provided for herein, Lessee shall
pay to Lessor, as interim rent, payable on
the commencement date specified above, an
amount equal to 1/30th of the monthly rental
payment (including monthly sales/use tax)
multiplied by the number of days from and
including the commencement date through the
end of the same calendar month. $ 760.20
EQUIPMENT MONTHLY SALES TAX TOTAL MONTHLY
COST RENTAL @ 8.25% PAYMENT
----------- ---------- ---------- ----------
Taxable $294,496.76 $7,238.26 $597.16 $7,835.42
Exempt $609,087.31 $14,970.39 $14,970.39
----------- ---------- ---------
Total $903,584.07 $22,208.65 $22,805.81
=========== ========== ==========
Lessee hereby irrevocably authorizes Lessor to insert in this Schedule the
Commencement Date and the due date of the first rental payment.
Except as expressly provided or modified hereby, all the terms and provisions of
the Master Lease Agreement shall remain in full force and effect.
The Purchase Date shall be March 1, 2001. The Purchase Price shall be the Fair
Market Value of the Equipment. Lessee and Lessor agree that the Fair Market
Value of the Equipment on the Purchase Date shall be equal to 10% of the
Equipment Cost.
The Stipulated Loss Value of any items of Equipment shall be an amount equal to
the present value of all future Rent discounted at a rate of 6% per annum plus
the Reversionary Value.
The Reversionary Value of any item of Equipment shall be 10% of Equipment Cost.
In witness whereof, this Schedule is hereby executed and agreed to this 28th day
of March 1997.
-11-
12
TRANSAMERICA BUSINESS CREDIT ABGENIX, INC.
CORPORATION (Lessee)
(Lessor)
By: /s/ Xxxxxx X. Xxxxxxx, Xx. By: /s/ R. Xxxxx Xxxxx
---------------------------------- ------------------------------------
Title: Executive Vice President Title: CEO
-12-
13
SCHEDULE TO MASTER LEASE AGREEMENT
Dated as of April 24, 1997
Schedule No. 2
LESSOR NAME & MAILING ADDRESS LESSEE NAME & MAILING ADDRESS
Transamerica Business Credit Abgenix, Inc.
Corporation 000 Xxxxxxxx Xxxxx
Xxxxxxxx XX Xxxxxx Xxxx, Xxxxxxxxxx 00000
West Office Tower
0000 Xxxx Xxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Equipment Location (if different than Lessee's address above):
0000 Xxxxxxxxx Xx. Xxxxxxx, Xxxxxxxxxx
This Schedule covers the following described equipment ("Equipment").
See Exhibit II and Rider I attached hereto and made a part hereof.
The Equipment is hereby leased pursuant to the provisions of the Master Lease
Agreement between the undersigned Lessee and Lessor dated March 27, 1997 (the
"Master Lease"), the terms of which are incorporated herein by reference
thereto, plus the following additional terms, provisions and modifications.
Lessor reserves the right to adjust the monthly payments in accordance with the
Commitment Letter dated as of March 7, 1997, between the Lessor and Lessee, if
the Lessor has not received this Schedule executed by the Lessee within five
business days from the date set forth above.
1. Term (Number of Months) 48 months
2. Equipment Cost $283,841.22
3. Commencement Date April 30, 1997
4. Rate Factor 2.46741% of Equipment Cost
5. Total Rents $336,169.44
6. Advance Rents (first and last) $ 14,007.06
Monthly rental payments including
monthly sales/use tax will be in the
amount of $7,003.53
and the second such rental payment
will be due on June 1, 1997
and subsequent rental payments will
be due on the same day of each month thereafter.
8. Security Deposit $ None
-13-
14
9. In addition to the monthly rental
payments provided for herein, Lessee shall
pay to Lessor, as interim rent, payable on
the commencement date specified above, an
amount equal to 1/30th of the monthly rental
payment (including monthly sales/use tax)
multiplied by the number of days from and
including the commencement date through the
end of the same calendar month. $ 233.45
Lessee hereby irrevocably authorizes Lessor to insert in this Schedule the
Commencement Date and the due date of the first rental payment.
Except as expressly provided or modified hereby, all the terms and provisions of
the Master Lease Agreement shall remain in full force and effect.
The Purchase Date shall be April 1, 2001. The Purchase Price shall be the Fair
Market Value of the Equipment. Lessee and Lessor agree that the Fair Market
Value of the Equipment on the Purchase Date shall be equal to 10% of the
Equipment Cost.
The Stipulated Loss Value of any items of Equipment shall be an amount equal to
the present value of all future Rent discounted at a rate of 6% per annum plus
the Reversionary Value.
The Reversionary Value of any item of Equipment shall be 10% of Equipment Cost.
In witness whereof, this Schedule is hereby executed and agreed to this 30th
day of April 1997.
TRANSAMERICA BUSINESS CREDIT ABGENIX, INC.
CORPORATION (Lessee)
(Lessor)
By: /s/ Xxxx X. Xxxx By: [SIG]
--------------------------------- ------------------------------------
Title: Vice President Title: Assistant Treasurer
-14-
15
SCHEDULE TO MASTER LEASE AGREEMENT
Dated as of May 22, 1997
Schedule No. 3
LESSOR NAME & MAILING ADDRESS LESSEE NAME & MAILING ADDRESS
Transamerica Business Credit Abgenix, Inc.
Corporation 000 Xxxxxxxx Xxxxx
Xxxxxxxx XX Xxxxxx Xxxx, Xxxxxxxxxx 00000
West Office Tower
0000 Xxxx Xxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Equipment Location (if different than Lessee's address above):
0000 Xxxxxxxxx Xx. Xxxxxxx, Xxxxxxxxxx
This Schedule covers the following described equipment ("Equipment").
See Exhibit II and Rider I attached hereto and made a part hereof.
The Equipment is hereby leased pursuant to the provisions of the Master Lease
Agreement between the undersigned Lessee and Lessor dated March 27, 1997 (the
"Master Lease"), the terms of which are incorporated herein by reference
thereto, plus the following additional terms, provisions and modifications.
Lessor reserves the right to adjust the monthly payments in accordance with the
Commitment Letter dated as of March 7, 1997, between the Lessor and Lessee, if
the Lessor has not received this Schedule and Delivery and Acceptance
Certificate executed by the Lessee within five business days from the date set
forth above.
1. Term (Number of Months) 48 months
2. Equipment Cost $75,307.03
3. Commmencement Date May 30, 1997
4. Rate Factor 2.45593% of Equipment Cost
5. Total Rents $88,776.00
6. Advance Rents (first and last) $ 3,699.00
Monthly rental payments including
monthly sales/use tax will be in the
amount of $1,849.50
and the second such rental payment
will be due on July 1, 1997
and subsequent rental payments will
be due on the same day of each month thereafter.
-16-
16
8. Security Deposit N O N E
9. In addition to the monthly rental
payments provided for herein, Lessee shall
pay to Lessor, as interim rent, payable on
the commencement date specified above, an
amount equal to 1/30th of the monthly rental
payment (including monthly sales/use tax)
multiplied by the number of days from and
including the commencement date through the
end of the same calendar month. $ 123.30
Lessee hereby irrevocably authorizes Lessor to insert in this Schedule the
Commencement Date and the due date of the first rental payment.
Except as expressly provided or modified hereby, all the terms and provisions of
the Master Lease Agreement shall remain in full force and effect.
The Purchase Date shall be May 1, 2001. The Purchase Price shall be the Fair
Market Value of the Equipment. Lessee and Lessor agree that the Fair Market
Value of the Equipment on the Purchase Date shall be equal to 10% of the
Equipment Cost.
The Stipulated Loss Value of any items of Equipment shall be an amount equal to
the present value of all future Rent discounted at a rate of 6% per annum plus
the Reversionary Value.
The Reversionary Value of any item of Equipment shall be 10% of Equipment Cost.
In witness whereof, this Schedule is hereby executed and agreed to this 27
day of May, 1997.
TRANSAMERICA BUSINESS CREDIT ABGENIX, INC.
CORPORATION (Lessee)
(Lessor)
By: By: [SIG]
---------------------------------- ------------------------------------
-17-
17
Title: Title: Asst. Treasurer
------------------------------
-18-
18
SCHEDULE TO MASTER LEASE AGREEMENT
Dated as of June 23, 1997
Schedule No. 4
LESSOR NAME & MAILING ADDRESS LESSEE NAME & MAILING ADDRESS
Transamerica Business Credit Abgenix, Inc.
Corporation 000 Xxxxxxxx Xxxxx
Xxxxxxxx XX Xxxxxx Xxxx, Xxxxxxxxxx 00000
West Office Tower
0000 Xxxx Xxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Equipment Location (if different than Lessee's address above):
0000 Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx
This Schedule covers the following described equipment ("Equipment").
See Exhibit II and Rider I attached hereto and made a part hereof.
The Equipment is hereby leased pursuant to the provisions of the Master Lease
Agreement between the undersigned Lessee and Lessor dated March 27, 1997 (the
"Master Lease"), the terms of which are incorporated herein by reference
thereto, plus the following additional terms, provisions and modifications.
Lessor reserves the right to adjust the monthly payments in accordance with the
Commitment Letter dated as of March 7, 1997, between the Lessor and Lessee, if
the Lessor has not received this Schedule executed by the Lessee within five
business days from the date set forth above.
1. Term (Number of Months) 48 months
2. Equipment Cost $382,650.00
3. Commencement Date June 30, 1997
4. Rate Factor 2.4492% of Equipment Cost
1. Total Rents $449,849.28
Total sales/use tax $ 25,524.96 $475,374.24
2. Advance Rents (first and last) $ 18,743.72
Sales/use tax for advance rent $ 1,063.54 $ 19,807.26
3. Monthly rental payments $ 9,371.86
Monthly sales/use tax $ 531.77 $ 9,903.63
and the second such rental payment
will be due on August 1, 1997
and subsequent rental payments will
be due on the same day of each month
thereafter
-19-
19
4. Security Deposit NONE
5. In addition to the monthly rental payments
provided for herein, Lessee shall
pay to Lessor, as interim rent,
payable on the commencement date
specified above, an amount equal
to 1/30th of the monthly rental
payment (including monthly sales/use
tax) multiplied by the number of
days from and including the commencement
date through the end of the same calendar month. $ 330.13
Summary of Rental Payment Calculations:
TOTAL
EQUIPMENT MONTHLY SALES TAX MONTHLY
EQUIPMENT COST RENTAL @ 8.25% PAYMENT
--------- ----------- --------- ------- ---------
Taxable $263,175.00 $6,445.68 $531.77 $6,977.45
Exempt $119,475.00 $2,926.18 n/a $2,926.18
----------- --------- ------- ---------
Total $382,650.00 $9,371.86 $531.77 $9,903.63
=========== ========= ======= =========
Lessee hereby irrevocably authorizes Lessor to insert in this Schedule the
Commencement Date and the due date of the first rental payment.
Except as expressly provided or modified hereby, all the terms and provisions of
the Master Lease Agreement shall remain in full force and effect.
The Purchase Date shall be June 1, 2001. The Purchase Price shall be the Fair
Market Value of the Equipment. Lessee and Lessor agree that the Fair Market
Value of the Equipment on the Purchase Date shall be equal to 10% of the
Equipment Cost.
The Stipulated Loss Value of any items of Equipment shall be an amount equal to
the present value of all future Rent discounted at a rate of 6% per annum plus
the Reversionary Value.
The Reversionary Value of any item of Equipment shall be 10% of Equipment Cost.
In witness whereof, this Schedule is hereby executed and agreed to this 30th day
of June 1997.
-20-
20
TRANSAMERICA BUSINESS CREDIT ABGENIX, INC.
CORPORATION (Lessee)
(Lessor)
By: By:
--------------------------------- ------------------------------------
Title: ------------------------------ Title: CEO
-21-
21
SCHEDULE TO MASTER LEASE AGREEMENT
Dated as of July 23, 1997
Schedule No. 5
LESSOR NAME & MAILING ADDRESS LESSEE NAME & MAILING ADDRESS
Transamerica Business Credit Abgenix, Inc.
Corporation 000 Xxxxxxxx Xxxxx
Xxxxxxxx XX Xxxxxx Xxxx, Xxxxxxxxxx 00000
West Office Tower
0000 Xxxx Xxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Equipment Location (if different than Lessee's address above):
0000 Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx
This Schedule covers the following described equipment ("Equipment").
See Exhibit II and Rider I attached hereto and made a part hereof.
The Equipment is hereby leased pursuant to the provisions of the Master Lease
Agreement between the undersigned Lessee and Lessor dated March 27, 1997 (the
"Master Lease"), the terms of which are incorporated herein by reference
thereto, plus the following additional terms, provisions and modifications.
Lessor reserves the right to adjust the monthly payments in accordance with the
Commitment Letter dated as of March 7, 1997, between the Lessor and Lessee, if
the Lessor has not received this Schedule executed by the Lessee within five
business days from the date set forth above.
1. Term (Number of Months) 48 months
2. Equipment Cost $ 52,120.35
3. Commencement Date July 31, 1997
4. Rate Factor 2.4490% of Equipment Cost
5. Total Rents $61,268.64
Total sales/use tax $ 3,792.96 $ 65,061.60
6. Advance Rents (first and last) $ 2,552.86
Sales/use tax for advance rent $ 158.04 $ 2,710.90
7. Monthly rental payments $ 1,276.43
Monthly sales/use tax $ 79.02 $ 1,355.45
and the second such rental payment
will be due on September 1, 1997
and subsequent rental payments will
be due on the same day of each month thereafter
-22-
22
8. Security Deposit NONE
9. In addition to the monthly rental payments
provided for herein, Lessee shall pay to
Lessor, as interim rent, payable on the
commencement date specified above, an amount
equal to 1/30th of the monthly rental payment
(including monthly sales/use tax) multiplied by
the number of days from and including the
commencement date through the end of the same
calendar month. $ 45.18
Summary of Rental Payment Calculations:
TOTAL
EQUIPMENT MONTHLY SALES TAX MONTHLY
EQUIPMENT COST RENTAL @ 8.25% PAYMENT
----------- --------- ------ ---------
Taxable $39,108.43 $957.77 $79.02 $1,036.79
Exempt $13,011.93 $318.66 n/a $318.66
----------- --------- ------ ---------
Total $52,120.365 $1,276.43 $79.02 $1,355.45
=========== ========= ====== =========
Lessee hereby irrevocably authorizes Lessor to insert in this Schedule the
Commencement Date and the due date of the first rental payment.
Except as expressly provided or modified hereby, all the terms and provisions of
the Master Lease Agreement shall remain in full force and effect.
The Purchase Date shall be July 1, 2001. The Purchase Price shall be the Fair
Market Value of the Equipment. Lessee and Lessor agree that the Fair Market
Value of the Equipment on the Purchase Date shall be equal to 10% of the
Equipment Cost.
The Stipulated Loss Value of any items of Equipment shall be an amount equal to
the present value of all future Rent discounted at a rate of 6% per annum plus
the Reversionary Value.
The Reversionary Value of any item of Equipment shall be 10% of Equipment Cost.
In witness whereof, this Schedule is hereby executed and agreed to this 31st day
of July 1997.
-23-
23
TRANSAMERICA BUSINESS CREDIT ABGENIX, INC.
CORPORATION (Lessee)
(Lessor)
By: By:
--------------------------------- ------------------------------------
Title: ------------------------------ Title: ---------------------------------
-24-
24
SCHEDULE TO MASTER LEASE AGREEMENT
Dated as of August 25, 1997
Schedule No. 6
LESSOR NAME & MAILING ADDRESS LESSEE NAME & MAILING ADDRESS
Transamerica Business Credit Corporation Abgenix, Inc.
Riverway II 000 Xxxxxxxx Xxxxx
Xxxx Xxxxxx Xxxxx Xxxxxx Xxxx, Xxxxxxxxxx 00000
0000 Xxxx Xxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Equipment Location (if different than Lessee's address above):
0000 Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx
This Schedule covers the following described equipment ("Equipment").
See Exhibit II and Rider I attached hereto and made a part hereof.
The Equipment is hereby leased pursuant to the provisions of the Master Lease
Agreement between the undersigned Lessee and Lessor dated March 27, 1997 (the
"Master Lease"), the terms of which are incorporated herein by reference
thereto, plus the following additional terms, provisions and modifications.
Lessor reserves the right to adjust the monthly payments in accordance with the
Commitment Letter dated as of March 7, 1997, between the Lessor and Lessee, if
the Lessor has not received this Schedule executed by the Lessee within five
business days from the date set forth above.
1. Term (Number of Months) 48 months
2. Equipment Cost $ 82,140.56
3. Commencement Date September 1, 1997
4. Rate Factor 2.44590% of Equipment Cost
5. Total Rents $96,436.80
Total sales/use tax $ 1,987.68 $ 98,424.48
6. Advance Rents (first and last) $ 4,018.20
Sales/use tax for advance rent $ 82.82 $ 4,101.02
7. Monthly rental payments $ 2,009.10
Monthly sales/use tax $ 41.41 $ 2,050.51
and the second such rental payment
will be due on October 1, 1997
and subsequent rental payments will
be due on the same day of each month
thereafter
8. Security Deposit NONE
9. In addition to the monthly rental
payments provided for herein, Lessee
shall
pay to Lessor, as interim rent, payable
on the commencement date specified
above, an amount equal to 1/30th of the
monthly rental payment (including
monthly sales/use tax) multiplied by the
number of days from and including the
commencement date through the end of the
same calendar month. NONE
1
25
Summary of Rental Payment Calculations:
----------------------------------------------------------------------------------------------
EQUIPMENT EQUIPMENT MONTHLY SALES TAX TOTAL MONTHLY
COST RENTAL @ 8.25% PAYMENT
----------------------------------------------------------------------------------------------
Taxable $ 20,518.43 $ 501.88 $ 41.41 $ 543.29
----------------------------------------------------------------------------------------------
Exempt $ 61,622.13 $ 1,507.22 n/a $ 1,507.22
----------------------------------------------------------------------------------------------
Total $ 82,140.56 $ 2,009.10 $ 41.41 $ 2,050.51
----------------------------------------------------------------------------------------------
Lessee hereby irrevocably authorizes Lessor to insert in this Schedule the
Commencement Date and the due date of the first rental payment.
Except as expressly provided or modified hereby, all the terms and provisions of
the Master Lease Agreement shall remain in full force and effect.
The Purchase Date shall be August 1, 2001. The Purchase Price shall be the Fair
Market Value of the Equipment. Lessee and Lessor agree that the Fair Market
Value of the Equipment on the Purchase Date shall be equal to 10% of the
Equipment Cost.
The Stipulated Loss Value of any items of Equipment shall be an amount equal to
the present value of all future Rent discounted at a rate of 6% per annum plus
the Reversionary Value.
The Reversionary Value of any item of Equipment shall be 10% of Equipment Cost.
In witness whereof, this Schedule is hereby executed and agreed to this 1st day
of September, 1997.
TRANSAMERICA BUSINESS CREDIT ABGENIX, INC.
CORPORATION (Lessee)
(Lessor)
By: /s/ Xxx Xxxxxxx By: /s/ Xxxx Xxxxxxxxxx
------------------------------ ------------------------------
Title: Xxx Xxxxxxx Title: Chief Finacial Officer
--------------------------- ---------------------------
Assistant Vice President
2
26
SCHEDULE TO MASTER LEASE AGREEMENT
Dated as of September 24, 1997
Schedule No. 7
LESSOR NAME & MAILING ADDRESS LESSEE NAME & MAILING ADDRESS
Transamerica Business Credit Corporation Abgenix, Inc.
Riverway II 000 Xxxxxxxx Xxxxx
Xxxx Xxxxxx Xxxxx Xxxxxx Xxxx, Xxxxxxxxxx 00000
0000 Xxxx Xxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 6001
Equipment Location (if different than Lessee's address above):
0000 Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx
This Schedule covers the following described equipment ("Equipment").
See Exhibit II and Rider I attached hereto and made a part hereof.
The Equipment is hereby leased pursuant to the provisions of the Master Lease
Agreement between the undersigned Lessee and Lessor dated March 27, 1997 (the
"Master Lease"), the terms of which are incorporated herein by reference
thereto, plus the following additional terms, provisions and modifications.
Lessor reserves the right to adjust the monthly payments in accordance with the
Commitment Letter dated as of March 7, 1997, between the Lessor and Lessee, if
the Lessor has not received this Schedule executed by the Lessee within five
business days from the date set forth above.
1. Term (Number of Months) 48 months
2. Equipment Cost $ 33,335.03
3. Commencement Date September 30, 1997
4. Rate Factor 2.44590% of Equipment Cost
5. Total Rents $ 39,136.80
$39,136.80
6. Advance Rents (first and last) $ 1,630.70
7. Monthly rental payments $ 1,630.70
and the second such rental payment
will be due on November 1, 1997
and subsequent rental payments will
be due on the same day of each month
thereafter
8. Security Deposit NONE
9. In addition to the monthly rental
payments provided for herein, Lessee
shall pay to Lessor, as interim rent,
payable on the commencement date
specified above, an amount equal to
1/30th of the monthly rental payment
(including monthly sales/use tax)
multiplied by the number of days from
and including the commencement date
through the end of the same calendar
month. $ 27.20
1
27
Summary of Rental Payment Calculations:
Lessee hereby irrevocably authorizes Lessor to insert in this Schedule the
Commencement Date and the due date of the first rental payment.
Except as expressly provided or modified hereby, all the terms and provisions of
the Master Lease Agreement shall remain in full force and effect.
The Purchase Date shall be September 1, 2001. The Purchase Price shall be the
Fair Market Value of the Equipment. Lessee and Lessor agree that the Fair Market
Value of the Equipment on the Purchase Date shall be equal to 10% of the
Equipment Cost.
The Stipulated Loss Value of any items of Equipment shall be an amount equal to
the present value of all future Rent discounted at a rate of 6% per annum plus
the Reversionary Value.
The Reversionary Value of any item of Equipment shall be 10% of Equipment Cost.
In witness whereof, this Schedule is hereby executed and agreed to this 30th day
of September, 1997.
TRANSAMERICA BUSINESS CREDIT ABGENIX, INC.
CORPORATION (Lessee)
(Lessor)
By: /s/ Xxxx X. Xxxx By: /s/ Xxxx Xxxxxxxxxx
-------------------------- --------------------------
Title: Vice President Title: CFO
----------------------- -----------------------
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28
SCHEDULE TO MASTER LEASE AGREEMENT
Dated as of October 28, 1997
Schedule No. 8
LESSOR NAME & MAILING ADDRESS LESSEE NAME & MAILING ADDRESS
Transamerica Business Credit Corporation Abgenix, Inc.
Riverway II 0000 Xxxxxxxxx Xxxxxx
Xxxx Xxxxxx Xxxxx Xxxxxxx, XX 00000
0000 Xxxx Xxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Equipment Location (if different than Lessee's address above):
0000 Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx
This Schedule covers the following described equipment ("Equipment").
See Exhibit II and Rider I attached hereto and made a part hereof.
The Equipment is hereby leased pursuant to the provisions of the Master Lease
Agreement between the undersigned Lessee and Lessor dated March 27, 1997 (the
"Master Lease"), the terms of which are incorporated herein by reference
thereto, plus the following additional terms, provisions and modifications.
Lessor reserves the right to adjust the monthly payments in accordance with the
Commitment Letter dated as of March 7, 1997, between the Lessor and Lessee, if
the Lessor has not received this Schedule executed by the Lessee within five
business days from the date set forth above.
1. Term (Number of Months) 48 months
2. Equipment Cost $143,465.56
3. Commencement Date October 31, 1997
4. Rate Factor 2.44590% of Equipment Cost
5. Total Rents $ 168,432.96
Total sales/use tax $ 11,674.08 $180,107.04
6. Advance Rents (first and last) $ 7,018.04
Sales/use tax for advance rent $ 486.42 $ 7,504.46
7. Monthly rental payments $ 3,509.02
Monthly sales/use tax $ 243.21 $ 3,752.23
and the second such rental payment
will be due on December 1, 1997
and subsequent rental payments will
be due on the same day of each month
thereafter
8. Security Deposit NONE
9. In addition to the monthly rental
payments provided for herein, Lessee
shall pay to Lessor, as interim rent,
payable on the commencement date
specified above, an amount equal to
1/30th of the monthly rental payment
(including monthly sales/use tax)
multiplied by the number of days from
and including the commencement date
through the end of the same calendar
month. $ 125.07
1
29
Summary of Rental Payment Calculations:
-------------------------------------------------------------------------------------------
EQUIPMENT EQUIPMENT MONTHLY RENTAL SALES TAX TOTAL MONTHLY
COST @ 8.25% PAYMENT
-------------------------------------------------------------------------------------------
Exempt $ 22,938.79 $ 561.06 n/a $ 561.06
-------------------------------------------------------------------------------------------
Taxable $ 120,526.77 $ 2,947.96 $ 243.21 $ 3,191.17
-------------------------------------------------------------------------------------------
Total $ 143,465.56 $ 3,509.02 $ 243.21 $ 3,752.23
-------------------------------------------------------------------------------------------
Lessee hereby irrevocably authorizes Lessor to insert in this Schedule the
Commencement Date and the due date of the first rental payment.
Except as expressly provided or modified hereby, all the terms and provisions of
the Master Lease Agreement shall remain in full force and effect.
The Purchase Date shall be October 1, 2001. The Purchase Price shall be the Fair
Market Value of the Equipment. Lessee and Lessor agree that the Fair Market
Value of the Equipment on the Purchase Date shall be equal to 10% of the
Equipment Cost.
The Stipulated Loss Value of any items of Equipment shall be an amount equal to
the present value of all future Rent discounted at a rate of 6% per annum plus
the Reversionary Value.
The Reversionary Value of any item of Equipment shall be 10% of Equipment Cost.
In witness whereof, this Schedule is hereby executed and agreed to this 31st day
of October 1997.
TRANSAMERICA BUSINESS CREDIT ABGENIX, INC.
CORPORATION (Lessee)
(Lessor)
By: /s/ Xxxx X. Xxxx By: /s/ Xxxx Xxxxxxxxxx
-------------------------- --------------------------
Title: Xxxx X. Xxxx Title: CFO
----------------------- -----------------------
Vice President
2
