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EXHIBIT 10.14
CUSTOMER NO. 1101
MASTER LEASE AGREEMENT
Lessor: TRANSAMERICA BUSINESS CREDIT CORPORATION
RIVERWAY II
XXXX XXXXXX XXXXX
XXXX XXXXXXX
XXXXXXXX, XXXXXXXX 00000
Lessee: DYAX CORP.
XXX XXXXXXX XXXXXX
XXXXXXXX 000, 0XX XXXXX
XXXXXXXXX, XXXXXXXXXXXXX 00000
The lessor pursuant to this Master Lease Agreement ("Agreement") dated as of
December 30, 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. The timing and financial scope of Lessor's
obligation to enter into Leases hereunder are limited as set forth in the
Commitment Letter executed by Lessor and Lessee, dated as of December 17, 1997
and attached hereto as Exhibit A (the "Commitment Letter").
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 the 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
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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 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,
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, 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
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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.
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, 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.
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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, 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 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 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 the 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)
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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 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. Upon request, Lessee will provide proof of
payment. Unless Lessor elects otherwise, Lessee will pay all property taxes on
the Equipment. 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
Paragraphs 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.
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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.
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 two days
after notice 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 any
other provision under or in connection with a Lease or violates any of the
covenants or agreements of such Lease Party under or in connection with a Lease;
(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) 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); (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, fail generally to pay its debts as they
mature, or call a meeting for
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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 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) leases, 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
five 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; 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.
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23. LESSOR'S EXPENSE. Lessee shall pay Lessor on demand all costs and
expenses (including 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 $2,500
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. 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 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 Dyax Corp., Xxx Xxxxxxx Xxxxxx, Xxxxxxxx 000,
0xx Xxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx 00000, Attention: Director of Finance, 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 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 Lessee enforceable against Lessee in
accordance with its terms; (e) 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.
- 8 -
9
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 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.
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
- 9 -
10
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 provision 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 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.
- 10 -
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.
DYAX CORP.
By: /s/ L. Xxxxxx Xxxxxx
-------------------------------------
Name: L. Xxxxxx Xxxxxx
Title: Executive Vice President
Federal Tax ID: 00-0000000
TRANSAMERICA BUSINESS CREDIT
CORPORATION
By: Xxxx X. Xxxx
-------------------------------------
Name: Xxxx X. Xxxx
Title: Vice President
- 11 -
12
[Transamerica Business Credit letterhead]
EXHIBIT A
December 17, 1997
Ms. Xxxxx Xxxxxxx
Director of Finance
Dyax Corp.
One Xxxxxxx Square
Building 000, 0xx Xxxxx
Xxxxxxxxx, XX 00000
Dear Xxxxx:
Transamerica Business Credit Corporation - Technology Finance Division
("Lessor") is pleased to offer this commitment (this "Commitment") to lease the
equipment described below to Dyax Corp. ("Lessee"). This Commitment supersedes
all prior correspondence, commitments, 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: Dyax Corp.
EQUIPMENT: Laboratory, production and office equipment (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"),
including equipment acquired during 1997.
EQUIPMENT COST: Not to exceed $3,000,000.
EQUIPMENT LOCATION: Cambridge, Massachusetts and Charlottesville, Virginia
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 60 months from the
first day of the month next following or coincident with
that Lease Term Commencement.
MONTHLY RENT: Monthly Rent equal to 2.09409% of Equipment Cost will be
payable monthly in advance. The first month's rent will be
due and payable in advance on or before each Lease Term
Commencement.
ADJUSTMENTS TO
13
RENTAL PAYMENTS: The Lessor reserves the right to adjust the Monthly Rent
Payments as of the date of each Lease Term Commencement
proportionally to the change in the weekly average of the
interest rates of like-term U.S. Treasury Securities tracked
from September 15, 1997 (U.S. Five Year Treasury rate 6.22)
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 Rent
Payments will be fixed for the term. A schedule of the
actual Monthly Rent Payments will be provided by the Lessor
following each Lease Term Commencement.
INTERIM RENT: Interim Rent will accrue from each Lease Term Commencement
until the next following first day of a month (unless the
Lease Term Commencement is on the first day of a month).
Interim Rent will be at the daily equivalent of the
currently adjusted Monthly Rent Payment.
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 EACH LEASE TERM
COMMENCEMENT: 1. No material adverse change in the financial condition,
operation or prospects of the 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.
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 the then current Fair Market Value of the
Equipment, plus applicable sales and other taxes. It will be
agreed that Fair Market Value will be ten percent (10%) of
original Equipment Cost.
- 2 -
14
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 1.0% 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 its
then current Fair Market Value, plus applicable sales and
other taxes. It will be agreed that the Fair Market Value
will not exceed five percent (5%).
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.
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 or any
affiliate of Lessee by the manufacturer, supplier or anyone
else including, without limitation, discounts for
advertising, prompt payment, testing or other services.
There will be no financial ratio covenants.
FEES AND EXPENSES: The Lessee will be responsible for the Lessor's reasonable
expenses in connection with the transaction. Said fees and
expenses will not exceed $2,500 without consent of 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.
- 3 -
15
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 Lessee 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
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 $20,000 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 $2,500
without the consent of the Lessee), and any remainder shall
be applied pro rata to the second month's rent due under
each Lease Schedule.
COMMITMENT
EXPIRATION: This commitment shall expire on December 23, 1997 unless
prior thereto either extended in writing by the Lessor or
accepted as provided below by the Lessee.
- 4 -
16
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 December 23, 1997.
Yours truly,
TRANSAMERICA BUSINESS CREDIT CORP.
TECHNOLOGY FINANCE DIVISION
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------
Xxxxxx X. Xxxxxxx
Senior Vice President - Marketing
Accepted this 19th day of December, 1997
DYAX CORPORATION
By: /s/ Xxxxx Xxxxxxx
------------------------------------
- 5 -
17
SCHEDULE A
Equipment Locations:
0000 Xxxx Xxxxxx Xxx.
Xxxxxxxxxxxxxxx, Xxxxxxxx 00000
One Xxxxxxx Xxxxxx
Xxxxxxxx 000, 0xx Xxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
18
SCHEDULE TO MASTER LEASE AGREEMENT
Dated as of December 30, 1997
Schedule No. 1
LESSOR NAME & MAILING ADDRESS LESSEE NAME & MAILING ADDRESS
Transmerica Business Credit Corporation Dyax Corp.
Riverway II One Xxxxxxx Square
Xxxx Xxxxxx Xxxxx Xxxxxxxx 000, 0xx Xxxxx
0000 Xxxx Xxxxxxx Xxxx Xxxxxxxxx, Xxxxxxxxxxxxx 00000
Xxxxxxxx, Xxxxxxxx 00000
Equipment Location (if different from above):
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 December 30, 1997 (the
"Master Lease"), the terms of which are incorporated herein by reference
thereto, plus the following additional terms, provisions, and modifications. The
Lessor reserves the right to adjust the monthly payments in accordance with the
Commitment Letter dated December 17, 1997, if the Lessor has not received this
Schedule and an Acceptance and Delivery Certificate executed by the Lessee
within five business days from the date first set forth above.
1. Term (Number of Months) 60 months
2. Equipment Cost $ 325,518.51
3. Commencement Date December 30, 1997
4. Rate Factor 2.09409% of Equipment Cost
5. Total Rents $408,999.03
Total sales/use tax $ 20,449.95 $ 429,448.98
6. Advance Rents (first) $ 6,816.65
Sales/use tax for advance rent $ 340.83 $ 7,157.48
7. Monthly rental payments $ 6,816.65
Monthly sales/use tax $ 340.83 $ 7,157.48
and the second such rental payment
will be due on and subsequent rental February 1, 1998
payments will be due on the same day
of each month thereafter
8. Security Deposit NONE
19
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. $ 477.17
Renewal terms:
In the event the Lease does not exercise the Purchase Option described below,
the Lease shall automatically renew for a term of 12 months with Monthly Rental
equal to 1% of the original Equipment Cost payable in monthly in advance. At the
expiration of the renewal period, the Lessee shall have the option to purchase
all (but not less than all) the Equipment for its then current Fair Market
Value, plus applicable and other taxes. It is agreed that the Fair Market Value
at the end of the renewal period shall not exceed 5% of Equipment Cost.
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 Lessee shall have the option to purchase all (but not less than all) the
Equipment at the expiration of the term of the lease for the then Fair Market
Value of the Equipment, plus applicable sales and other taxes. It is agreed that
the Fair Market Value will be 10% of the Equipment Cost. The Purchase Date shall
be December 31, 2002.
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 5% per annum plus
the Reversionary Value.
The Reversionary Value of any item of Equipment shall be 10% of Equipment Cost.
TRANSAMERICA BUSINESS CREDIT DYAX CORP.
CORPORATION (Lessee)
(Lessor)
By: /s/ Xxxx X. Xxxx By: /s/ X. X. Xxxxxx
-------------------------------- --------------------------------
Title: Vice President Title: Executive Vice President
----------------------------- -----------------------------
20
EXHIBIT II
To
Schedule No. 1
To:
X Schedule to Master Lease Agreement X Sale and Leaseback Agreement
X UCC X Xxxx of Sale
__ Collateral Access Agreement __
Dated as of December 30, 1997,
Between
TRANSAMERICA BUSINESS CREDIT CORPORATION
And DYAX CORPORATION
Equipment Locations: Xxx Xxxxxxx Xxxxxx
Xxxxxxxxx, XX
====================================================================================================================================
QTY EQUIPMENT INVOICE SERIAL SUPPLIER/ PURCH. DATE EQUIPMENT
DESCRIPTION NO. NO. VENDOR COST
------------------------------------------------------------------------------------------------------------------------------------
5 Micron Millenia 1368162 Micron 5/2/97
LXA Desktop Electronics
Computers and
accessories
------------------------------------------------------------------------------------------------------------------------------------
1 17" Monitor 1368162 Micron 5/2/97
Electronics
------------------------------------------------------------------------------------------------------------------------------------
Total Invoice $ 9,299.50
------------------------------------------------------------------------------------------------------------------------------------
2 Micron 1422676 Micron 5/2/97 $ 8,954.70
Transport Electronics
Notebook
Computers
------------------------------------------------------------------------------------------------------------------------------------
1 Geneamp PCR 852335 N19460 Xxxxxx Xxxxx 2/17/97 $ 10,110.01
System 9600
------------------------------------------------------------------------------------------------------------------------------------
1 PE Applied 839951 PE Applied 5/27/97 $ 55,378.00
Biosystems Biosystems
Model 310
Genetic Analyser
------------------------------------------------------------------------------------------------------------------------------------
1 Micron Millenia 1712483 Micron 8/29/97 $ 2,793.35
MME 200 Electronics
Desktop
Computer
------------------------------------------------------------------------------------------------------------------------------------
2 Bio-Tek 183711 90577 Bio-Tek 7/16/97 $ 3,020.47
Instruments Instruments,
EL403B Robotic Inc.
System
------------------------------------------------------------------------------------------------------------------------------------
1 Bio-Tek 183706 128827 Bio-Tek 7/16/97 $ 1,950.00
Instruments Instruments,
Combo Pressure Inc.
Vacuum system
21
------------------------------------------------------------------------------------------------------------------------------------
1 DSA Firewall-2 1 Decision- 4/1/97 $ 7,182.00
VPN 2.1 Science
Applications,
Inc.
------------------------------------------------------------------------------------------------------------------------------------
4 Impact-2 8 67335 00713571, Matrix 11/10/97 $ 4,701.72
Challen 1250ul 00713577, Technologies
Pipe 00713575, Corp
00713578
------------------------------------------------------------------------------------------------------------------------------------
1 Xxxxxxx XX-45 305062CL01 940-801 Xxxxxxx 1/27/97 $ 2,786.93
Rotor Assy. Instruments
2 Tubes
------------------------------------------------------------------------------------------------------------------------------------
1 Sorvall RC-5C 0000000000 9700232 Sorvall, Inc. 2/27/97
Plus Centrifuge
------------------------------------------------------------------------------------------------------------------------------------
2 Rotor, SLA 0000000000 9750858, Sorvall, Inc. 2/27/97
1500 9750874
------------------------------------------------------------------------------------------------------------------------------------
2 SS34 Superspeed 0000000000 9700222, Sorvall, Inc. 2/27/97
Rotor 9613255
------------------------------------------------------------------------------------------------------------------------------------
Total Invoice $ 27,723.50
------------------------------------------------------------------------------------------------------------------------------------
Various Office furniture 725594, OfficeEnviron- Various $ 46,929.55
728809, ments of New
740565, England
733679,
739494,
730207
------------------------------------------------------------------------------------------------------------------------------------
1 Buchi RE 111 6299 American 10/20/97 $ 1,688.78
w/bath std. gl Instrument
EVAP Exchange
------------------------------------------------------------------------------------------------------------------------------------
1 Heat stir plate, American 10/03/97 $ 3,010.00
(2) xxxxxx Instrument
xxxxxx pumps, Exchange
(2) Millipore
Chart recorders,
K&Z Chart
recorder
------------------------------------------------------------------------------------------------------------------------------------
0 XXXX XXX- 00000, XXXX XXX, 9/09/97, $139,990.00
LA300 300 Mhz 56804 Inc. 10/23/97
NMR system
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Total $325,518.51
====================================================================================================================================
Transamerica Business Credit Dyax Corporation
Corporation (Lessee)
(Lessor)
By: Xxxx X. Xxxx By: /s/ X. X. Xxxxxx
-------------------------------- -----------------------------
Title: Vice President Title: Executive Vice President
----------------------------- ---------------------------
22
SCHEDULE TO MASTER LEASE AGREEMENT
Dated as of December 30, 1997
Schedule No. 2
LESSOR NAME & MAILING ADDRESS LESSEE NAME & MAILING ADDRESS
Transamerica Business Credit Corporation Dyax Corp.
Riverway II One Xxxxxxx Square
Xxxx Xxxxxx Xxxxx Xxxxxxxx 000, 0xx Xxxxx
0000 Xxxx Xxxxxxx Xxxx Xxxxxxxxx, Xxxxxxxxxxxxx 00000
Xxxxxxxx, Xxxxxxxx 00000
Equipment Location (if different than Lessee's address above):
0000 Xxxx Xxxxxx Xxx.
Xxxxxxxxxxxxxxx, XX 00000
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 December 30, 1997 (the
"Master Lease"), the terms of which are incorporated herein by reference
thereto, plus the following additional terms, provisions, and modifications. The
Lessor reserves the right to adjust the monthly payments in accordance with the
Commitment Letter dated December 17, 1997, if the Lessor has not received this
Schedule and an Acceptance and Delivery Certificate executed by the Lessee
within five business days from the date first set forth above.
1. Term (Number of Months) 60 months
2. Equipment Cost $120,135.84
3. Commencement Date December 30, 1997
4. Rate Factor 2.09409% of Equipment Cost
5. Total Rents $151,073.32
Total sales/use tax $ 6,798.30 $157,871.62
6. Advance Rents (first) $ 2,515.75
Sales/use tax for advance rent $ 113.21 $ 2,628.96
7. Monthly rental payments $ 2,515.75
Monthly sales/use tax $ 113.21 $ 2,628.96
and the second such rental payment
will be due on and subsequent rental February 1, 1998
payments will be due on the same day
of each month thereafter
23
8. Security Deposit N/A
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. $ 175.26
Renewal terms:
In the event the Lease does not exercise the Purchase Option described below,
the Lease shall automatically renew for a term of 12 months with Monthly Rental
equal to 1% of the original Equipment Cost payable in monthly in advance. At the
expiration of the renewal period, the Lessee shall have the option to purchase
all (but not less than all) the Equipment for its then current Fair Market
Value, plus applicable and other taxes. It is agreed that the Fair Market Value
at the end of the renewal period shall not exceed 5% of Equipment Cost.
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 Lessee shall have the option to purchase all (but not less than all) the
Equipment at the expiration of the term of the lease for the then Fair Market
Value of the Equipment, plus applicable sales and other taxes. It is agreed that
the Fair Market Value will be 10% of the Equipment Cost. The Purchase Date shall
be December 31, 2002.
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 5% per annum plus
the Reversionary Value.
The Reversionary Value of any item of Equipment shall be 10% of Equipment Cost.
TRANSAMERICA BUSINESS CREDIT DYAX CORP.
CORPORATION (Lessee)
(Lessor)
By: /s/ Xxxx X. Xxxx By: /s/ X. X. Xxxxxx
---------------------------------- ----------------------------------
Title: Vice President Title: Executive Vice President
------------------------------- -------------------------------
24
EXHIBIT II
To
Schedule No. 2
To:
X Schedule to Master Lease Agreement X Sale and Leaseback Agreement
X UCC X Xxxx of Sale
__ Collateral Access Agreement __ Option of Counsel
Dated as of December 30, 0000
Xxxxxxx
XXXXXXXXXXXX BUSINESS CREDIT CORPORATION
And DYAX CORPORATION
Equipment Locations: 0000 Xxxx Xxxxxx Xxx.
Xxxxxxxxxxxxxxx, XX 00000
====================================================================================================================================
QTY EQUIPMENT INVOICE SERIAL NO. SUPPLIER/ PURCH. EQUIPMENT
DESCRIPTION NO. VENDOR DATE COST
------------------------------------------------------------------------------------------------------------------------------------
2 8101 analog Ath Inc. 7/4/97 $ 204.00
telephones
------------------------------------------------------------------------------------------------------------------------------------
1 Xxxxxxx 100Q 190795 UU AA16275 Xxxxxxx 10/29/97 $ 35,054.53
Optical Bench Corporation
------------------------------------------------------------------------------------------------------------------------------------
1 DEH1963 Super A2063386 Data Comm 5/06/97 $ 1,010.45
stack II 24 Port hub Warehouse
with coax module
------------------------------------------------------------------------------------------------------------------------------------
2 Dell Dimension XPS 120817408 B1WLQ Dell Direct 8/14/97 $ 4,524.00
000 Xxx xxxxxxx X0XXX Sales L.P.
processor and
accessories
------------------------------------------------------------------------------------------------------------------------------------
1 Dell Dimension 111519021 95KCY Dell Direct 5/13/97 $ 2,978.00
Pentium Pro200n Sales L.P.
Minitower and
accessories
------------------------------------------------------------------------------------------------------------------------------------
1 Dell Latitude 128020062 BCG87 Dell Direct 10/20/97 $ 3,007.00
Notebook computer Sales L.P.
with accessories
------------------------------------------------------------------------------------------------------------------------------------
1 Dell Dimension 200v 103950887 8GM9R Dell Direct 2/25/97 $ 3,320.80
Mini Tower and Sales L.P.
accessories
------------------------------------------------------------------------------------------------------------------------------------
1 Dell Latitude Xpi 101855039 82MY4 Dell Direct 2/26/97 $ 5,233.00
CD laptop computer Sales L.P.
and acc.
------------------------------------------------------------------------------------------------------------------------------------
25
====================================================================================================================================
QTY EQUIPMENT INVOICE SERIAL NO. SUPPLIER/ PURCH. EQUIPMENT
DESCRIPTION NO. VENDOR DATE COST
------------------------------------------------------------------------------------------------------------------------------------
2 Dell Dimension 133v 102390739 8BTDX, Dell Direct 2/10/97 $ 4,014.00
minitowers and 8BTFI Sales L.P.
accessories
------------------------------------------------------------------------------------------------------------------------------------
1 Dell Latitude Xpi 101939221 7Y8HO Dell Direct 2/07/97 $ 3,904.00
133 Mhz laptop Sales L.P.
computer with
accessories
------------------------------------------------------------------------------------------------------------------------------------
1 Dell Dimension XPS 120816830 B4X84 Dell Direct 8/18/97 $ 2,545.00
M233 Mhz Pentium Sales L.P.
processor minitower
and acc.
------------------------------------------------------------------------------------------------------------------------------------
1 Dell Dimension XPS 119069029 9VT7B Dell Direct 7/28/97 $ 3,237.00
H233 Mhz minitower Sales L.P.
and acc
------------------------------------------------------------------------------------------------------------------------------------
1 Dell P133/GsM and 106274459 8MDP8 Dell Direct 3/31/97 $ 1,751.00
accessories Sales L.P.
------------------------------------------------------------------------------------------------------------------------------------
1 Dell Dimension 113561153 9B01F Dell Direct 6/03/97 $ 3,172.00
Pentium Pro200n Sales L.P.
minitower and acc.
------------------------------------------------------------------------------------------------------------------------------------
1 Dell Latitude LM 112641261 8WGKC Dell Direct 6/10/97 $ 4,836.00
M166MMX Sales L.P.
notebook computer
and acc.
------------------------------------------------------------------------------------------------------------------------------------
3 Dell Dimension 108903634 90DXL, Dell Direct 4/23/97 $ 9,135.00
Pentium Pro2000n 90DXQ, Sales L.P.
minitowers and 90DXX
accessories
------------------------------------------------------------------------------------------------------------------------------------
1 Dell Latitude LM 107809568 84MCV Dell Direct 4/01/97 $ 4,291.29
P133 Mhz notebook Sales L.P.
and acc. including 108353020
MS office pro
bookshelf
------------------------------------------------------------------------------------------------------------------------------------
1 Dell Latitude P133 62XNK Xxxxxxx 5/27/97 $ 4,302.00
Mhz laptop and Xxxxxx
accessories
------------------------------------------------------------------------------------------------------------------------------------
1 Office printer Xxxxxx 3/5/97 $ 610.74
Stefanczyk
------------------------------------------------------------------------------------------------------------------------------------
1 Dielectric tester 153797 E.I.L. 6/23/97 $ 2,604.00
system with Instruments
calibration and Transcat
ground leakage tester
------------------------------------------------------------------------------------------------------------------------------------
1 Wire cabling Ath, Inc. 7/4/97 $ 348.77
------------------------------------------------------------------------------------------------------------------------------------
1 STA 120A6 supplies 2120150-01 Industrial 3/06/97 $ 243.40
Supply Co.
------------------------------------------------------------------------------------------------------------------------------------
26
====================================================================================================================================
QTY EQUIPMENT INVOICE SERIAL NO. SUPPLIER/ PURCH. EQUIPMENT
DESCRIPTION NO. VENDOR DATE COST
------------------------------------------------------------------------------------------------------------------------------------
1 STA 36x48 surplate 2120150-02 Industrial 3/14/97 $ 1,900.60
and statstand Supply Co.
------------------------------------------------------------------------------------------------------------------------------------
1 Digimatic Height 3022923-01 Xxxxx 3/21/97 $ 3,991.88
gage with Touch McGraw, Inc.
Probe
------------------------------------------------------------------------------------------------------------------------------------
1 6' Compact tabletop A 59970 Photoworks 3/18/97 $ 1,677.50
system of Virginia,
Inc.
------------------------------------------------------------------------------------------------------------------------------------
1 each Used desk, used 21738 S&W Office 4/18/97 $ 467.11
utility table, used Products, Inc.
steno chair
------------------------------------------------------------------------------------------------------------------------------------
1 each Used desk, used 22001 S&W Office 6/22/97 $ 363.66
chair Products, Inc.
------------------------------------------------------------------------------------------------------------------------------------
1 0Xxx xxxxxxxxx XXX X0000000 inmac 6/9/97 $ 559.24
and 2 etherlink Enet
PCMCIA cards with
cable
------------------------------------------------------------------------------------------------------------------------------------
2 etherlink III B A3579570 inmac 6/16/97 $ 979.90
combo ISA card
------------------------------------------------------------------------------------------------------------------------------------
1 Chromatogram 9790915-04 960729-12- Scientific 9/15/97 $ 2,638.48
system validation 412 Software, Inc.
package
------------------------------------------------------------------------------------------------------------------------------------
1 AMS A-100 Auger 100658-1 AMS Filling 10/01/97 $ 5,260.00
filler Systems, Inc.
------------------------------------------------------------------------------------------------------------------------------------
1 2MB module for -87803 Entre 10/14/97 $ 648.00
laser jet printer and Computer
print server Center
------------------------------------------------------------------------------------------------------------------------------------
1 Laserjet 6PXT -87643 USCD012958 Entre 10/06/97 $ 769.00
printer Computer
Center
------------------------------------------------------------------------------------------------------------------------------------
1 Workbench with 4374613 XxXxxxxx- 3/04/97 $ 554.49
flared leg and fixed Xxxx Supply
height Co.
------------------------------------------------------------------------------------------------------------------------------------
Total $120,135.84
Invoices
====================================================================================================================================
Transamerica Business Credit Dyax Corporation
Corporation (Lessee)
(Lessor)
By: /s/ Xxxx X. Xxxx By: /s/ X. X. Xxxxxx
---------------------------------- ---------------------------------
Title: Vice President Title: Executive Vice President
------------------------------- ------------------------------
