EXHIBIT 10.13
Customer No. 1080
AMENDED AND RESTATED
MASTER LEASE AGREEMENT
Lessor: TRANSAMERICA BUSINESS CREDIT CORPORATION
Riverway II
Xxxx Xxxxxx Xxxxx
Xxxx Xxxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Lessee: DENDREON CORPORATION
0000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
The lessor pursuant to this Master Lease Agreement ("Agreement") dated as
of December 11, 1997, as amended and restated as of May 28, 1999, 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. Except as set forth in Paragraph 1 below, 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. The timing and financial scope of Lessor's
obligation to enter into Leases hereunder are limited as set forth in the
Commitment Letters executed by Lessor and Lessee, dated as of October 2, 1997
and April 14, 1999 and attached hereto as Exhibits A and B (collectively the
"Commitment Letters").
2. TERM. Each Lease shall be effective and the term of each Lease
("Term") shall commence on the commencement date which shall not be prior to
delivery, acceptance and funding of the Equipment and shall be 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
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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 3% 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. The $5,000 Application Fee
previously paid by Lessee shall be applied pro rata toward the second month's
rent due under each Lease after deducting expenses under Paragraph 23.
4. LEASE NOT CANCELABLE; LESSEE'S OBLIGATIONS ABSOLUTE. No Lease may be
canceled or terminated except as expressly provided herein. So long as Lessor
has not wrongfully interfered with Lessee's quiet enjoyment of the Equipment,
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 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 and 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, 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 or otherwise receiving benefits under any warranty, the
benefits of any and all warranties made available by the manufacturer or the
veneer 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.
2.
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, or the Lessee shall not have
exercised its purchase option under Paragraph 9 hereof, each Lease will
automatically renew for a term specified in the applicable Schedule (the
"Renewal Term") on the terms and conditions of this Agreement. or as set forth
in such Schedule; provided, however, that Obligations due to be performed by the
Lessee during the Renewal Term shall continue until they have been performed in
full.
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, Lessee may, upon written notice
to Lessor received at least one hundred eighty days before the expiration of a
Term, 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 as set forth in the applicable Schedule determined 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. 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 and file a UCC-3 termination statement.
10. OWNERSHIP; INSPECTION; MARKING; FINANCING STATEMENTS. Except for
tenant improvements, 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.
3.
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, shall 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 the expiration of 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, (ii) meet all recertification
requirements, and (iii) 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, roles, 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 sixty
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 sixty-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 Lessee requiring specific performance of the covenants of Lessee
set forth in this Paragraph 14. If Lessee fails to return the Equipment
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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 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 to Lessor 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 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 immediately 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 Lessee, 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 (subject to Lessee's right to contest
in good faith), 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,
5.
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. 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 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 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.
6.
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. Notwithstanding any assignment by Lessor, Lessor
shall not be relieved of its obligations under any Lease, but in no event shall
Lessor be liable for any act or omission of its assignee.
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 five 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 in any material respect
any other provision under or in connection with a Lease or violates in any
material respect any of the covenants or agreements of such Lease Party under or
in connection with a Lease and such breach is not cured within 10 days after
notice thereof or after Lessee has actual knowledge thereof; (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 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) in an amount in excess of $100,000 after any and all applicable cure
periods therefor shall have elapsed; (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, thirty days prior to any such proposed amendment or modification,
written notice of such amendment or modification and within ten days before such
amendment or modification delivers executed financing statements (in form and
substance satisfactory to the Lessor), provided that Lessee shall have 10
business days after notice to cure any default under this subparagraph (i); (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 necessary to the profitable conduct of its
business,
7.
fail generally to pay its debts as they mature, or call a meeting for purposes
of compromising its debts; (1) 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, which change results from a single transaction
or series of related transactions, but not from the sale of newly issued
securities to investors, in more than 35% of the ownership of any equity
interests of any of the Lease Parties on the date hereof or more than 35% of
such interests become subject to any contractual, judicial or statutory lien,
charge, security interest, or encumbrance; or (n) any of the Lease Parties
suffers a material adverse change in the business, prospects, operations,
results of operations, assets, liabilities, or condition (financial or
otherwise).
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
costs and expenses, liquidated for all purposes and not as a penalty): (i) all
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, (2) the date that Lessor has obtained possession of the Equipment, or
(3) 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 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 seven percent
compound interest; (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 discounted at seven percent compound interest; 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
8.
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 costs and
expenses (including reasonable legal fees and expenses) incurred in connection
with the preparation, execution and delivery of this Agreement and any other
agreements and transactions contemplated hereby, which expenses shall not exceed
$3,500 without the written consent of Lessee 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, except that Lessee shall have the right to require Lessor to
convey to Lessee, without representation, warranty or recourse, all of Lessor's
rights, title and interest in and to the Equipment upon Lessor's receipt,
following an event of default and the exercise of the Lessor's remedies, of the
amounts specified in Paragraph 22(f).
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 Transamerica 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 Dendreon Corporation, 0000 Xxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxxxx, 00000, Attention: Chief Financial Officer 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 and will not contravene (i)
Lessee's organizational documents or (ii) any law, regulation, rule, or
contractual restriction binding on or affecting Lessee; (c) no authorization or
approval or other
9.
action by, and no notice to or fling 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 Lessee enforceable against Lessee in accordance with its
terms; (e) to Lessee's knowledge, the 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
(including, without limitation, discounts for advertising, prompt payment,
testing, or other services) given to the Lessee by the manufacturer, supplier,
or any other person; 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. 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). Lessee shall also
deliver to Lessor as soon as available copies of all press releases and other
similar communications issued by Lessee.
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 TRANSACIIONS 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.
10.
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. SPECIAL TAX INDEMNIFICATION. Lessee acknowledges that Lessor, in
determining the Rent due hereunder, has assumed that certain tax benefits as are
provided to an owner of property under the Internal Revenue Code of 1986, as
amended (the "Code"), and under applicable state tax law, including, without
limitation, depreciation deductions under Section 168(b) of the Code, and
deductions under Section 163 of the Code in an amount at least equal to the
amount of interest paid or accrued by Lessor with respect to any indebtedness
incurred by Lessor in financing its purchase of the Equipment, are available to
Lessor as a result of the lease of the Equipment. In the event Lessor is unable
to obtain such tax benefits as a result of an act or omission of Lessee, is
required to include in income any amount other than the Rent, or is required to
recognize income in respect of the Rent earlier than anticipated pursuant to
this Agreement, Lessee shall pay Lessor additional rent ("Additional Rent") in a
lump sum in an amount needed to provide Lessor with the same after-tax yield and
after-tax cash flow as would have been realized by Lessor had Lessor (i) been
able to obtain such tax benefits, (ii) not been required to include any amount
in income other than the Rent, and (iii) not been required to recognize income
in respect of the Rent earlier than anticipated pursuant to this Agreement. The
Additional Rent shall be computed by Lessor, which computation shall be binding
on Lessee. The Additional Rent shall be due immediately upon written notice by
Lessor to Lessee of Lessor's inability to obtain tax benefits, the inclusion of
any amount in income other than the Rent or the recognition of income in respect
of the Rent earlier than anticipated pursuant to this Agreement. The provisions
of this Paragraph 33 shall survive the termination of this Agreement.
34. GOVERNING LAW; SEVERABILITY. EACH LEASE SHALL BE GOVERNED BY THE LAWS
OF THE STATE OF ILLINOIS WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW PRINCIPLES
THEREOF. 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, THE SCHEDULES DELIVERED
AND SIGNED BY LESSEE IN CONNECTION HEREWITH FROM TIME TO TIME, AND THE
COMMITMENT LETTER 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. SHOULD THERE EXIST ANY INCONSISTENCY BETWEEN THE TERMS OF
THE COMMITMENT LETTER AND THIS AGREEMENT, THE TERMS OF THIS AGREEMENT SHALL
PREVAIL.
11.
IN WITNESS WHEREOF, the parties hereto have executed or caused this
Agreement to be duly executed by their duly authorized officers as of the date
first written above.
Dendreon Corporation
By: /s/ Xxxxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
-----------------------------------
Title:
----------------------------------
Federal Tax ID:
-------------------------
Transamerica Business Credit Corporation
By:
------------------------------------
Name:
Title:
12.
Exhibit A
October 2, 1997
Xx. Xxxxx X. Xxxxxx
Chief Financial Officer
Dendreon Corporation
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxxx Xxxx, XX 00000
Dear Xxxx:
Transamerica Business Credit Corporation - Technology Finance Division
("Lessor") is pleased to offer this commitment (this "Commitment") to lease the
equipment described below to Dendreon Corporation. This Commitment supersedes
all prior correspondence, commitments, and oral or other communications relating
to leasing arrangements between Lessor and Lessee.
The outline of this commitment is as follows:
Lessee: Dendreon Corporation
Lessor: Transamerica Business Credit Corporation -
Technology Finance Division
Equipment: Laboratory equipment, office equipment, computer
hardware and software and tenant improvements (all
equipment subject to Lessor's approval prior to
funding), including without limitation, all
additions, improvements, replacements, repairs,
appurtenances, substitutions, and attachments
thereto and all proceeds thereof ("Equipment").
Equipment to be leased hereunder may include
equipment purchased by Lessee since
January 1, 1997 (sale/leaseback).
Equipment Cost: Not to exceed $1,000,000, of which up to $300,000
may be used for tenant improvements and software.
Equipment Location: Mountain View, CA (or other location acceptable to
the Lessor). Anticipated Delivery:
Anticipated Delivery: Q1-1997 to Q4-1998.
Lease Term Commencement: Upon delivery of the Equipment or upon each
completion of deliveries of items of Equipment
with aggregate cost of not less than $50,000, but
no later than December 31, 1998.
Term: From each Lease Term Commencement until 48 months
from the first day of the month next following or
coincident with
1.
that Lease Term Commencement.
Monthly Rent: Monthly Rent equal to 2.4425% of Equipment Cost
will be payable monthly in advance. The first
month's rent will be payable upon signing the
lease.
Adjustment to The Lessor will increase or decrease the Monthly
Monthly Lease Payments: Lease Payments as of the date of each Lease Term
Commencement proportionally to the change in the
weekly average of the interest rates of the like-
term U.S. Treasury Securities from the week ending
August 29, 1997 to the week preceding the date of
each Lease Term Commencement, as published in the
Wall Street Journal. As of the date of each Lease
Term Commencement, the Monthly Lease Payments will
be fixed for the term. A schedule of the actual
Monthly Lease Payments will be provided by the
Lessor following each Lease Term Commencement.
Net Lease: The lease will be a net lease under which the
Lessee will be responsible for maintenance,
insurance, taxes, and all other costs and
expenses.
Taxes: Sales or use taxes will be added to the Equipment
Cost or collected on the gross rentals, as
appropriate.
Insurance: Prior to any delivery of Equipment, the Lessee
will furnish confirmation of insurance acceptable
to the Lessor covering the Equipment including
primary, all risk, physical damage, property
damage and bodily injury with appropriate loss
payee endorsement in favor of the Lessor.
Conditions Precedent to 1. No material adverse change in the financial
Each Lease Term condition, operation or prospects of the
Commencement: Lessee prior to funding. The Lessor reserves
the right to rescind any unused portion of
its commitment in the event of a material
adverse change in the financial condition,
operation or prospects of the Lessee.
2. Completion of the documentation and final
terms of the proposed financing satisfactory
to Lessor and Lessor's counsel.
3. Results of all due diligence, including lien,
judgment and tax searches and other matters
Lessor may reasonably request shall be
satisfactory to Lessor and Lessor's counsel.
4. Receipt by Lessor of duly executed Lease
documentation in form and substance
satisfactory to Lessor and its counsel.
2.
5. Lessor shall receive title and a valid and
perfected first priority lien and security
interest in all Equipment acquired through
the use of this Commitment and Lessor shall
have received satisfactory evidence that
there are no liens on any Equipment except as
expressly permitted herein.
Purchase Option: The Lessee will have the option to purchase all
(but not less than all) the Equipment at the
expiration of the term of the lease for ten
percent (10%) of Equipment Cost, plus applicable
sales and other taxes
Automatic Renewal: In the event the Lessee does not exercise the
Purchase Option described above, the lease will
automatically renew for a term of one year with
Monthly Rentals equal to 1.00% of Equipment Cost
payable monthly in advance. At the expiration of
the renewal period, the Lessee will have the
option to purchase all (but not less than all) the
Equipment for $1.00.
Warrant Coverage:- As consideration for Lessor's commitment to enter
into this equipment Lease in accordance with the
terms outlined herein, the Lessee will issue to
Lessor warrants to purchase 8,333 shares of the
Lessee's common stock at an exercise price of
$3.60 per share. The warrants will be exercisable
for a period of seven years and Lessor will have
the option to exercise the Warrants without
payment of the exercise price and receive only
that number of shares which represents the value
of the difference between the fair market value of
the shares and the exercise price (i.e., "net
issuance" or "cashless exercise").
Additional Covenants: There will be no actual or threatened conflict
with, or violation of, any regulatory statute,
standard or rule relating to the lessee, its
present or future operations, or the Equipment.
The Lessee will be required to provide quarterly
financial information. All information supplied by
the Lessee will be correct and will not omit any
statement necessary to make the information
supplied not be misleading. There will be no
material breach of the representations and
warranties of the Lessee in the lease. The
representations will include that the Equipment
Cost of each item of the Equipment does not exceed
the fair and usual price for like quantity
purchased of such item and reflects all discounts,
rebates and allowances for the Equipment given to
Lessee any affiliate of Lessee by the
manufacturer, supplier or anyone else including,
without limitation, discounts for advertising,
prompt payment, testing
3.
or other services.
No financial covenants will be required in
connection with this transaction.
Fees and Expenses: The Lessee will be responsible for the Lessor's
reasonable expenses in connection with the
transaction. Such expenses shall not exceed $3,500
without the prior written consent of the Lessee.
Law: This letter and the proposed Lease are intended to
be governed by and construed in accordance with
Illinois law without regard to its conflict of law
provisions.
Indemnity: Lessee agrees to indemnify and to hold harmless
Lessor, and its officers, directors and employees
against all claims, damages, liabilities and
expenses which may be incurred by or asserted
against any such person in connection with or
arising out of this letter and the transactions
contemplated hereby, other than claims, damages,
liability, and expense resulting from such
person's gross negligence or willful misconduct.
Confidentiality This letter is delivered to you with the
understanding that neither it nor its substance
shall be disclosed publicly or privately to any
third person except those who are in a
confidential relationship to you (such as your
legal Counsel and accountants), or where the same
is required by law and then only on the basis that
it not be further disclosed, which conditions
Lessee and its agents agree to be bound by upon
acceptance of this letter.
Without limiting the generality of the foregoing,
none of such persons shall use or refer to Lessor
or to any affiliate name in any disclosures made
in connection with any of the transactions without
Lessor's prior written consent. Upon completion of
the initial takedown by Lessor and Lessee, the
Lessee will no longer be required to obtain
Lessor's prior written consent to disclose the
transaction contemplated hereby. In addition, the
Lesser agrees to provide camera ready artwork of
typestyles and logos of the Lessee for use in
promotional material by the Lessor.
Conditions of Acceptance: This Commitment Letter is intended to be a summary
of the most important elements of the agreement to
enter into a leasing transaction with Lessee, and
it is subject to all requirements and conditions
contained in Lease documentation
4.
proposed by Lessor or its counsel in the course of
closing the Lease described herein. Not every
provision that imposes duties, obligations,
burdens, or limitations on Lessee is contained
herein, but shall be contained in the final Lease
documentation satisfactory to Lessor and its
counsel.
EACH OF THE PARTIES HERETO IRREVOCABLY AND
UNCONDITIONALLY WAIVES ALL RIGHT TO TRIAL BY JURY
IN ANY SUIT, ACTION, PROCEEDING OR COUNTERCLAIM
ARISING OUT OF OR RELATED TO THIS LETTER OR THE
TRANSACTION DESCRIBED IN THIS LETTER.
Application Fee: The $10,000 Application Fee previously paid by
Lessee shall be first applied to the costs and
expenses of the Lessor in connection with the
transaction (not to exceed $3,500), and any
remainder shall be applied pro-rata to the second
month's rent due under each Lease.
Commitment Expiration: This commitment shall expire on October 10, 1997
unless prior thereto either extended in writing by
the Lessor or accepted as provided below by the
Lessee.
Should you have any questions, please call me. If you wish to accept this
Commitment, please so indicate by signing and returning the enclosed duplicate
copy of this letter to me by October 10, 1997.
Yours truly,
Transamerica Business Credit
Corporation - Technology
Finance Division
By: /s/ Xxxxxx X. Xxxxxxx
------------------------
Xxxxxx X. Xxxxxxx
Senior Vice President - Marketing
Accepted this 7/th/ day of October, 1997
Dendreon Corporation
By: /s/ Xxxxx X. Xxxxxx
-------------------
Its Chief Financial Officer
5.
Exhibit B
April 14, 1999
Xxxxxx X. Xxxxxxxxx
Chief Financial Officer
Dendreon Corporation
0000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Dear Xxxxxx:
Transamerica Business Credit Corporation - Technology Finance Division
("Lessor") is pleased to offer this commitment (this "Commitment") to lease the
equipment described below to Dendreon Corporation ("Lessee"). Except with
respect to the transactions described in a commitment letter dated
October 2, 1997 (the "Prior Commitment"), this Commitment supersedes all prior
correspondence, proposals, and oral or other communications relating to leasing
arrangements between Lessor and Lessee.
The outline of this offer is as follows:
Lessor: Transamerica Business Credit Corporation -
Technology Finance Division
Lessee: Dendreon Corporation
Equipment Cost: Not to exceed $500,000 in the aggregate (in
addition to Prior Commitment).
Equipment: Laboratory and Office Equipment, including but
limited to all additions, accessions,
improvements, replacements and attachments thereto
and proceeds (including insurance proceeds)
thereof (the "Equipment"). All Equipment subject
to Lessee approval prior to funding.
Location of Equipment: Seattle, Washington and Mountain View, California:
Draw-Down Expiration: No Leases will be funded after December 31, 1999.
Lease Term Commencement: Each Lease Term will commence upon delivery of the
equipment or upon each delivery of items of
equipment having an aggregate cost of not less
than $50,000 and will continue through 48 months
from the first day of the month next following or
coincident with commencement of that Lease Term.
Payment Term: Monthly Rent equal to 2.4425% of Equipment Cost
will be payable monthly in advance. The first
month's rent will be
1.
payable upon signing the lease.
Monthly Rent: Monthly Rent equal to 2.4425% of Equipment Cost
will be payable monthly in advance. The first
month's rent will be payable upon signing the
lease.
The Lessor will increase or decrease the Monthly
Lease Payments as of the date of each Lease Term
Commencement proportionally to the change in the
weekly average of the interest rates of the like-
term U.S. Treasury Securities from the week ending
August 29, 1997 (6.17%) to the week preceding the
date of each Lease Term Commencement, as published
in the Wall Street Journal. As of the date of each
Lease Term Commencement, the Monthly Lease
Payments will be fixed for the term. A schedule of
the actual Monthly Lease Payments will be provided
by the Lessor following each Lease Term
Commencement.
Purchase Option: The Lessee will have the option to purchase all
(but not less than all) the Equipment at the
expiration of the term of the lease for ten
percent (10%) of Equipment Cost, plus applicable
sales and other taxes.
Automatic Renewal: In the event the Lessee does not exercise the
Purchase Option described above, the lease will
automatically renew for a term of one year with
Monthly Rentals equal to 1.00% of Equipment Cost
payable monthly in advance. At the expiration of
the renewal period, the Lessee will have the
option to purchase all (but not less than all) the
Equipment for $1.00.
Interim Rent: Interim Rent will accrue from the date each Lease
term commences until the next following first day
of a month (unless the Lease Term commences on the
first day of a moth). Interim Rent will be
calculated at the daily equivalent of the
currently adjusted Monthly Rent.
Warrant Coverage:- As an inducement to the Lessor to enter into this
Equipment Lease, the Lessee will issue to Lessor
warrants to purchase 3,000 shares of the Lessee's
common stock at an exercise price of $5.00 per
share. The warrants will be exercisable for a
period of seven years and Lessor will have the
option to exercise the Warrants without payment of
the exercise price and receive only that number of
shares which represents the value of the
difference between the fair market value of the
shares and the exercise price (i.e., "net
issuance" or "cashless exercise").
2.
Net Lease: The Leases will be a net lease under which the
Lessee will be responsible for maintenance,
insurance, taxes, and all other costs and
expenses.
Taxes: Sales or use taxes will be added to the Equipment
Cost or collected on the gross rentals, as
appropriate.
Insurance: Prior to any delivery of Equipment, the Lessee
will furnish confirmation of insurance acceptable
to the Lessor covering the Equipment including
primary, all risk, physical damage, property
damage and bodily injury with appropriate loss
payee endorsement in favor of the Lessor.
Conditions Precedent to 1. No material adverse change in the financial
Each Lease Term condition, operation or prospects of the
Commencement: Lessee prior to funding. The Lessor reserves
the right to rescind any unused portion of
its commitment in the event of a material
adverse change in the financial condition,
operation or prospects of the Lessee.
2. Completion of the documentation and final
terms of the proposed financing satisfactory
to Lessor and Lessor's counsel.
3. Results of all due diligence, including lien,
judgment and tax searches and other matters
Lessor may reasonably request shall be
satisfactory to Lessor and Lessor's counsel.
4. Receipt by Lessor of duly executed Lease
documentation in form and substance
satisfactory to Lessor and its counsel.
5. Lessor shall receive title and a valid and
perfected first priority lien and security
interest in all Equipment acquired through
the use of this Commitment and Lessor shall
have received satisfactory evidence that
there are no liens on any Equipment except as
expressly permitted herein.
Additional Covenants: There will be no actual or threatened conflict
with, or violation of, any regulatory statute,
standard or rule relating to the lessee, its
present or future operations, or the Equipment.
All information supplied by the Lessee will be
correct and will not omit any statement necessary
to make the information supplied not be
misleading. There will be no material breach of
the representations and warranties of the Lessee
in the lease. The representations will include
that the Equipment Cost of each item of the
Equipment does not exceed the fair and usual
3.
price for like quantity purchased of such item and
reflects all discounts, rebates and allowances for
the Equipment given to Lessee any affiliate of
Lessee by the manufacturer, supplier or anyone
else including, without limitation, discounts for
advertising, prompt payment, testing or other
services.
Expenses: All costs and expenses incurred by the Lessor in
connection with the underwriting and closing of
the Leases will be paid by the Lessee whether or
not any Leases are consummated and funds are
advanced by the Lessor. Such expenses shall not
exceed $1,000 without the consent of the Lessee.
Law: This letter and the proposed Lease are intended to
be governed by and construed in accordance with
Illinois law without regard to its conflict of law
provisions.
Indemnity-: Lessee agrees to indemnify and to hold harmless
Lessor, and its officers, directors and employees
against all claims, damages, liabilities and
expenses which may be incurred by or asserted
against any such person in connection with or
arising out of this letter and the transactions
contemplated hereby, other than claims, damages,
liability, and expense resulting from such
person's gross negligence or willful misconduct.
Confidentiality This letter is delivered to you with the
understanding that neither it nor its substance
shall be disclosed publicly or privately to any
third person except those who are in a
confidential relationship to you (such as your
legal Counsel and accountants), or where the same
is required by law and then only on the basis that
it not be further disclosed, which conditions
Lessee and its agents agree to be bound by upon
acceptance of this letter.
Without limiting the generality of the foregoing,
none of such persons shall use or refer to Lessor
or to any affiliate name in any disclosures made
in connection with any of the transactions without
Lessor's prior written consent.
Upon completion of the initial takedown by Lessor
and Lessee, the Lessee will no longer be required
to obtain Lessor's prior written consent to
disclose the transaction contemplated hereby. In
addition, the Lesser agrees to provide camera
ready artwork of typestyles and logos of the
Lessee for use in promotional material by the
Lessor.
Conditions of Acceptance: This Commitment Letter is intended to be a summary
of the most important elements of the agreement to
enter into a
4.
leasing transaction with Lessee, and it is subject
to all requirements and conditions contained in
Lease documentation proposed by Lessor or its
counsel in the course of closing the Lease
described herein. Not every provision that imposes
duties, obligations, burdens, or limitations on
Lessee is contained herein, but shall be contained
in the final Lease documentation satisfactory to
Lessor and its counsel.
EACH OF THE PARTIES HERETO IRREVOCABLY AND
UNCONDITIONALLY WAIVES ALL RIGHT TO TRIAL BY JURY
IN ANY SUIT, ACTION, PROCEEDING OR COUNTERCLAIM
ARISING OUT OF OR RELATED TO THIS LETTER OR THE
TRANSACTION DESCRIBED IN THIS LETTER.
Application Fee: The $5,000 Application Fee previously paid by
Lessee shall be first applied to the costs and
expenses of the Lessor in connection with the
transaction, and any remainder shall be applied
pro-rata (based on the amount of each funding to
the total amount of this commitment) to the second
month's rent due under each Lease.
Commitment Expiration: This commitment shall expire on April 21, 1999
unless prior thereto either extended in writing by
the Lessor or accepted as provided below by the
Lessee.
Should you have any questions, please call me. If you wish to accept this
Commitment, please so indicate by signing and returning the enclosed duplicate
copy of this letter to me by April 21, 1999.
Yours truly,
Transamerica Business Credit
Corporation - Technology
Finance Division
By: /s/ Xxxxxx X. Xxxxxxx
------------------------
Xxxxxx X. Xxxxxxx
Senior Vice President - Marketing
Accepted this 7/th/ day of October, 1997
Dendreon Corporation
By: /s/ Xxxxxx X. Xxxxxxxxx
-----------------------
Its Chief Financial Officer
5.
