*** TEXT OMITTED AND FILED SEPARATELY
CONFIDENTIAL TREATMENT REQUESTED
UNDER 17 C.F.R. XX.XX. 200.80(B)(4),
200.83 AND 240.24B-2
MASTER LEASE AGREEMENT
Lessor: TRANSAMERICA BUSINESS CREDIT CORPORATION
Riverway II
West Office Tower
0000 Xxxx Xxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Lessee: SUGEN, INC.
000 Xxxxxxxxx Xxxxx
Xxxxxxx Xxxx, Xxxxxxxxxx 00000-0000
The lessor pursuant to this Master Lease Agreement ("Agreement") dated as of
March 28, 1997, is Transamerica Business Credit Corporation ("Lessor"). All
equipment, software (Software), items designated as tenant improvements on the
applicable schedule (Tenant Improvements) 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 other
than stated in Paragraph 1 below.
LEASE. Subject to and upon all of the terms and conditions of
this Agreement and each Schedule, Lessor hereby agrees to lease to Lessee up to
$3,500,000 in Equipment, including up to [...***...] in Tenant Improvements and
up to [...***...] in Software and Lessee hereby agrees to lease from Lessor the
Equipment for the Term (as defined in Paragraph 2 below) thereof.
TERM. Each Lease shall be effective and the term of each Lease
("Term") shall commence on the commencement date specified in the applicable
Schedule which date shall not be prior to delivery, acceptance and funding 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 [...***...].
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 ten days after the day on which it
becomes payable, Lessee will pay on demand, as a late charge, an amount equal to
[...***...] 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. Lessees commitment
fee paid pursuant to the Commitment Letter dated March 20, 1997 (as amended,
supplemented or otherwise modified from time to time, the (Commitment Letter)),
shall be applied towards the second months rent (after deductions for expenses
under paragraph 23) under the initial Schedules and each monthly rental payment
thereafter until fully applied.
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 Lessees quiet enjoyment of the
Equipment, Xxxxxx'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
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make any claim solely against the manufacturer or the vendor thereof and shall,
nevertheless, pay Lessor all Rent payable hereunder.
SELECTION AND USE OF EQUIPMENT. Xxxxxx agrees that it shall be
responsible for the selection, use of, and results obtained from, the Equipment
and any other associated equipment or services.
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. XXXXXX SPECIFICALLY WAIVES ALL RIGHTS TO MAKE A CLAIM AGAINST LESSOR
FOR BREACH OF ANY WARRANTY WHATSOEVER. ONCE ACCEPTED BY XXXXXX, LESSEE LEASES
THE EQUIPMENT "AS IS." IN NO EVENT SHALL LESSOR HAVE ANY LIABILITY FOR, NOR
SHALL LESSEE HAVE ANY REMEDY AGAINST LESSOR FOR, ANY LIABILITY, CLAIM, LOSS,
DAMAGE OR EXPENSE CAUSED DIRECTLY OR INDIRECTLY BY THE EQUIPMENT OR ANY
DEFICIENCY OR DEFECT THEREOF OR THE OPERATION, MAINTENANCE OR REPAIR THEREOF OR
ANY CONSEQUENTIAL DAMAGES AS THAT TERM IS USED IN SECTION 2-719(3) OF THE MODEL
UNIFORM COMMERCIAL CODE, AS AMENDED FROM TIME TO TIME ("UCC"). Lessor grants to
Lessee, for the sole purpose of prosecuting a claim or receiving benefits under
the warranty, the benefits of any and all warranties made available by the
manufacturer or the vendor of the Equipment to the extent assignable.
DELIVERY. Lessor hereby appoints Lessee as Xxxxxx'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.
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, Lessee may elect to
renew upon 60 days prior written notice to Lessor each Lease on the terms and
conditions of this Agreement or as set forth in the
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applicable Schedule (the Renewal Term); provided, however, that if Lessee elects
to renew, obligations due to be performed by the Lessee during the Renewal Term
shall continue until they have been performed in full. The monthly rental
payments for the Renewal Term shall be as set forth in the applicable Schedule.
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 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 set forth in the applicable Schedule.
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 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 [...***...].
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 UCC-3 termination statements
upon reasonable request by Xxxxxx.
OWNERSHIP; INSPECTION; MARKING; FINANCING STATEMENTS. Lessee
shall affix to the Equipment, other than the Tenant Improvements, 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. Other than Tenant
Improvements, 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, other than in the Tenant Improvements, by
reason of the Equipment being claimed or deemed to be real property. Upon
request by
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Lessor, Xxxxxx 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.
EQUIPMENT USE. Lessee agrees that the Equipment will be
operated by competent, qualified personnel in connection with Xxxxxx'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.
MAINTENANCE. Lessee, at its sole cost and expense, shall keep
the Equipment in a suitable environment as specified by the manufacturer's
guidelines or the equivalent and meet all recertification requirements, and
shall maintain the Equipment in its original condition and working order,
ordinary wear and tear excepted. At the reasonable request of Lessor, Lessee
shall furnish all proof of maintenance.
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.
RETURN OF EQUIPMENT. Except for Equipment that has suffered a
Casualty Loss (as defined in Paragraph 15 below) and is not required to be
repaired pursuant to Paragraph 15 below or Equipment purchased by Lessee
pursuant to Paragraph 9 above, upon expiration 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
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Xxxxxx's own risk, immediately return the Equipment, freight prepaid, to a
location in the continental United States specified by Lessor. At the time of
such return to Lessor, the Equipment shall (i) be in the operating order, repair
and condition as required by or specified in the original specifications and
warranties of each manufacturer and vendor thereof, ordinary wear and tear
excepted, and meet all recertification requirements and (ii) be capable of being
promptly assembled and operated by a third party purchaser or third party lessee
without further repair, replacement, alterations or improvements, and in
accordance and compliance with any and all statutes, laws, ordinances, rules and
regulations of any governmental authority or any political subdivision thereof
applicable to the use and operation of the Equipment. Except as otherwise
provided under Paragraph 9 hereof, at least thirty 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 thirty-day period prior to
the end of 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 Xxxxxx 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.
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 [...***...] of the Equipment and (b) the [...***...]
of the Equipment specified in the applicable Schedule [...***...]. Each
liability insurance policy shall
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provide coverage (including, without limitation, personal injury coverage) of
not less than [...***...] 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 an insurance certificate 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 certificates or 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 [...***...]
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 [...***...] hereunder (as reasonably determined by Xxxxxx) 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 if no Event of Default has
occurred and is continuing (and otherwise at the option of Lessor), either
towards (i) repair of the Equipment or (ii) payment of any of Xxxxxx's
obligations hereunder. Lessee hereby appoints Lessor as Xxxxxx's
attorney-in-fact to make claim
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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.
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 if resulting from an act or omission of Lessee, 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 Xxxxxx
shall reimburse Lessor promptly upon request and proof of payment. 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. Lessee shall have the option to contest taxes diligently and in good
faith as long as Lessee maintains adequate reserves for such taxes measured in
accordance with General Accepted Accounting Principles.
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, Xxxxxx shall immediately
reimburse Lessor therefor.
GENERAL INDEMNITY. Each Lease is a net lease. Therefore,
Xxxxxx shall indemnify Lessor and its successors and assigns against, and hold
Xxxxxx and its successors and assigns harmless from, any and all claims,
actions, damages, obligations, liabilities and all costs and expenses,
including, without limitation, reasonable legal fees, incurred by
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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 have occurred as a result of the gross
negligence or willful misconduct of Lessor or its successors and assigns. Xxxxxx
agrees that upon written notice by Xxxxxx 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 except to the extent
Lessee incurs a loss as a direct result of such failure. 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.
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
agents, representatives, contractors and other authorized persons, provided that
Lessee shall indemnify and hold Lessor and its successors and assigns harmless
from any liability arising under, or in connection with such persons use or
operation of the Equipment; 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 Xxxxxx'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.
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 Xxxxxx 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.
DEFAULT; NO WAIVER. Lessee or any guarantor of any or all of
the obligations of Lessee hereunder (together with Lessee, the "Lease Parties")
shall be in default under each Lease upon the occurrence of any of the following
events (each, an "Event of Default"): (a) Lessee fails to pay within ten days of
when due any amount required to be paid by Lessee under or in connection with
any Lease; (b) any of the Lease Parties fails to perform 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 Parties 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 if the amount involved
exceeds [...***...] in the aggregate; (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; (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 paragraph (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 which loss has a material
adverse effect on Lessees ability to perform hereunder, or fail generally to pay
its debts as they mature, or call a meeting for purposes of compromising its
debts; or (l) any of the Lease Parties shall deny or disaffirm its obligations
hereunder or under any of the documents delivered in connection herewith.
REMEDIES. Upon the occurrence and continuation of an Event of
Default for ten days after notice for a payment Event of Default and for thirty
days after notice for all other Events 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, reasonable legal fees and all other amounts
specified in
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Paragraph 23 below; (ii) an amount equal to the sum of (A) any accrued and
unpaid Rent through the later of (1) the date of the applicable default or (2)
the date that Lessor has obtained possession of the Equipment or such other date
as Lessee has made an effective tender of possession of the Equipment to Lessor
(the "Default Date") and (B) if Lessor resells or re-lets the Equipment, Rent at
the periodic rate provided for in each Lease for the additional period 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 [...***...] simple interest per
annum; (iv) the present value of 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 [...***...] simple interest; and (v) any
indebtedness for Xxxxxx'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 Xxxxxx, 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 1herefrom or therefrom shall be in writing and signed by Xxxxxx.
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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LESSOR'S EXPENSE. Lessee shall pay Lessor on demand all its
reasonable expenses which shall not exceed [...***...] without the written
consent of Lessee (including reasonable legal fees and expenses) incurred in
connection with the preparation, execution and delivery of this Agreement and
any other agreement and transaction contemplated hereby and all costs and
expenses in protecting and enforcing Lessor's rights and interests in each Lease
and the Equipment, including, without limitation, legal, collection and
remarketing fees and expenses incurred by Lessor in enforcing the terms,
conditions or provisions of each Lease or, upon the occurrence and continuation
of an Event of Default.
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; provided, however, that Lessee shall
have the right to recover damages from Lessor for any breach by Lessor of its
obligations under this Agreement. 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 Lessors rights,
title and interest in and to the Equipment upon Lessors receipt, following an
event of default and the exercise of the Lessors remedies, of the amounts
specified in Paragraph 22(f). 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.
NOTICES; ADMINISTRATION. Except as otherwise provided herein,
all notices, approvals, consents, correspondence or other communications
required or desired to be given hereunder shall be given in writing and shall be
delivered by overnight courier, hand delivery or certified or registered mail,
postage prepaid, if to Lessor, then to Technology Finance Division, 00 Xxxxxxxxx
Xxxx Xxxx, Xxxxxxxxxx, Xxxxxxxxxxx 00000, Attention: Assistant Vice President,
Lease Administration, with a copy to Lessor at Riverway II, West Office Tower,
0000 Xxxx Xxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000, Attention: Legal
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Department, if to Lessee, then to Sugen, Inc., 000 Xxxxxxxxx Xxxxx, Xxxxxxx
Xxxx, Xxxxxxxxxx 00000-0000, Attention: Vice President 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.
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 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
except as may be limited by bankruptcy, reorganization, receivership, insolvency
or other laws affecting the enforcement of creditors rights generally; (e) to
the knowledge of Lessee 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.
FURTHER ASSURANCES. Lessee, upon the request of Xxxxxx, 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 limited attorney-in-fact to execute on behalf of Xxxxxx
and authorizes Lessor to file without Xxxxxx's signature any UCC financing
statements and amendments Lessor deems advisable.
-------------------------
*Confidental Treatment Requested
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, as filed with the SEC. Lessee shall also deliver to Lessor as soon as
available copies of all press releases and other similar communications issued
by Xxxxxx and upon request of Lessor.
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 Xxxxxx 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.
WAIVER OF JURY TRIAL. XXXXXX AND XXXXXX 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.
FINANCE LEASE. Xxxxxx and Xxxxxx 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.
NO AGENCY. Xxxxxx 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 Xxxxxx's duty to pay Rent and perform its other obligations as set forth
in this Agreement or any Schedule.
SPECIAL TAX INDEMNIFICATION. Xxxxxx 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 of which
Lessee has prior written notice and opportunity of comply, 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, and (ii) 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 absent good faith contest by Xxxxxx. The Additional Rent shall be due
immediately upon written notice by Lessor to Lessee of Xxxxxx'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.
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.
XXXXXX ACKNOWLEDGES THAT XXXXXX HAS READ THIS AGREEMENT AND THE
SCHEDULES HERETO, UNDERSTANDS THEM, AND AGREES TO BE BOUND BY THEIR TERMS AND
CONDITIONS. FURTHER, XXXXXX AND XXXXXX AGREE THAT THIS AGREEMENT AND THE
SCHEDULES DELIVERED AND SIGNED BY XXXXXX AND XXXXXX IN CONNECTION HEREWITH FROM
TIME TO TIME AND THE COMMITMENT LETTER DATED MARCH 20, 1997, AS EXECUTED MARCH
25, 1997, 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 BETWE9EN THE PARTIES RELATING TO THE SUBJECT MATTER HEREOF.
IN WITNESS WHEREOF, the parties hereto have executed or caused this
Agreement to be duly executed by their duly authorized officers as of this ____
day of ______________, 1997.
SUGEN, INC. TRANSAMERICA BUSINESS CREDIT CORPORATION
By: By:
----------------------------- -----------------------------
Name: Name:
--------------------------- ---------------------------
Title: Title:
-------------------------- --------------------------
Federal Identification
Number 00-0000000
Schedule for Tenant Improvements
SCHEDULE TO MASTER LEASE AGREEMENT
Dated as of __________
Schedule No. __
Lessor Name & Mailing Address Lessee Name & Mailing Address
Transamerica Business Credit Corporation Sugen, Inc.
Riverway II 000 Xxxxxxxxx Xxxxx
Xxxx Xxxxxx Xxxxx Xxxxxxx Xxxx, Xxxxxxxxxx
0000 Xxxx Xxxxxxx Xxxx 00000-0000
Xxxxxxxx, Xxxxxxxx 00000
Equipment Location (if different than Xxxxxx's address 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 as of __________ (the
"Master Lease"), the terms of which are incorporated herein by reference
thereto, plus the following additional terms, provisions and modifications.
Lessor reserves the right to adjust the monthly payments in accordance with the
Commitment Letter dated _____________, between the Lessor and Lessee, if the
Lessor has not received this Schedule executed by the Lessee within ____
business days from the date set forth above.
1. Term (Number of Months)
2. Equipment Cost
3. Commencement Date
4. a. Rate Factor (months)
a. Rate Factor (month)
5. Total Rents
6. Advance Rents (months)
7. Monthly rental payments for months ____
(including monthly sales/use tax) will be in the amount of
$________ and the second such rental payment will be due on
______________ and subsequent rental payments will be due on ______
each month thereafter. Monthly rental payment for month __
(including sales/use tax) will be in the amount of $__________
1. Security Deposit
2. 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.
Renewal Terms:
Lessee shall give Lessor ____ days prior written notice if it does not intend to
make the __ Monthly Rent described in __. In the event Lessee fails to give such
notice and Xxxxxx does not make the ____ payment and provided that the Lessee's
Real Estate Lease Term exceeds the Tenant Improvement Term, the lease shall
automatically renew for a term of _____ months with Monthly Rental equal to __%
of Equipment Cost payable monthly in advance. At the expiration of the renewal
period, Lessee may purchase all (but not less than all) the Equipment for $____,
plus sales and other taxes.
Tenant Improvements Termination Provisions:
If Lessee elects to vacate its present operating facilities (which is defined as
any facility in which Lessor's Tenant Improvements reside), then Lessor will
release its ownership in all its Tenant Improvements that cannot be removed and
used and Lessee shall pay a higher monthly rental factor on the remaining term
of such Tenant Improvements by ___% (or from ___% of Tenant Improvements Cost
monthly to ___% of Tenant Improvements Cost).
Except as expressly provided or modified hereby, all the terms and provisions of
the Master Lease Agreement shall remain in full force and effect.
In the event this Lease is not renewed pursuant to the terms hereof, Lessee
shall make the __th Monthly Rental Payment on the Purchase Date of __________.
On the Purchase Date, Lessee shall purchase all (but not less than all) the
Equipment for $_____, plus applicable sales and other taxes.
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 __% per annum plus
the Reversionary Value.
The Reversionary Value of any item of Equipment shall be $____.
In witness whereof, this Schedule is hereby executed and agreed to this ____ day
of ________________, 1997.
TRANSAMERICA BUSINESS CREDIT SUGEN, INC.
CORPORATION (Lessee)
(Lessor)
By: By:
------------------------------ -------------------------------
Title: Title:
--------------------------- ---------------------------
Schedule for Laboratory, Computer and Office Equipment and Software
SCHEDULE TO MASTER LEASE AGREEMENT
Dated as of __________
Schedule No. __
Lessor Name & Mailing Address Lessee Name & Mailing Address
Transamerica Business Credit Corporation Sugen, Inc.
Riverway II 000 Xxxxxxxxx Xxxxx
Xxxx Xxxxxx Xxxxx Xxxxxxx Xxxx, Xxxxxxxxxx
0000 Xxxx Xxxxxxx Xxxx 00000-0000
Xxxxxxxx, Xxxxxxxx 00000
Equipment Location (if different than Xxxxxx's address above):
This Schedule covers the following described equipment ("Equipment").
See Exhibit II and Rider I attached hereto and made a part hereof.
The Equipment is hereby leased pursuant to the provisions of the Master Lease
Agreement between the undersigned Lessee and Lessor dated as of __________ (the
"Master Lease"), the terms of which are incorporated herein by reference
thereto, plus the following additional terms, provisions and modifications.
Lessor reserves the right to adjust the monthly payments in accordance with the
Commitment Letter dated _____________, between the Lessor and Lessee, if the
Lessor has not received this Schedule executed by the Lessee within ____
business days from the date set forth above.
I. Term (Number of Months)
II. Equipment Cost
III. Commencement Date
IV. a. Rate Factor (months __ through __)
a) Rate Factor (month __)
V. Total Rents
VI. Advance Rents (months __ and __)
VII. Monthly rental payments for months __ through __ (including
monthly sales/use tax) will be in the amount of $________ and the
second such rental payment will be due on and subsequent rental
payments will be due on the same day of each month thereafter.
Monthly rental payment for month __ (including sales/use tax) will
be in the amount of $__________
I. Security Deposit
II. 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;
provided, however, no interim rent shall be due if the
Commencement Date is on or after the last three (3) business days
of a month.
Renewal Terms:
Lessee shall give Lessor ____ days prior written notice if it does not intend to
make the __ monthly rental payment described in __. In the event Lessee fails to
give such notice and Lessee does not make the __ monthly rental payment, the
lease shall automatically renew for a term of _____ months with _____ monthly
rental payments equal to __% of Equipment Cost payable monthly in advance plus
an additional payment equal to __% of Equipment Cost due at the end of the
Renewal Term, plus applicable sales and other taxes. At the expiration of the
Renewal Term, Lessee may purchase all (but not less than all) the Equipment for
$____, plus sales and other taxes.
Except as expressly provided or modified hereby, all the terms and provisions of
the Master Lease Agreement shall remain in full force and effect.
In the event this Lease is not renewed pursuant to the terms hereof, Lessee
shall make the __ Monthly Rental Payment on the Purchase Date of
__________. On the Purchase Date, Lessee shall purchase all (but not less than
all) the Equipment for $_____, plus applicable sales and other taxes.
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 __% per annum plus
the Reversionary Value.
The Reversionary Value of any item of Equipment shall be $____.
In witness whereof, this Schedule is hereby executed and agreed to this ____ day
of ________________, 1997.
TRANSAMERICA BUSINESS CREDIT SUGEN, INC.
CORPORATION (Lessee)
(Lessor)
By: By:
------------------------------ -------------------------------
Title: Title:
--------------------------- ---------------------------
