EXHIBIT 10.80
***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
Customer Number 1036
SECOND AMENDED AND RESTATED
MASTER LEASE AGREEMENT
Lessor: TRANSAMERICA BUSINESS CREDIT CORPORATION
Riverway II
West Office Tower
0000 Xxxx Xxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Lessee: SUGEN, INC.
000 Xxxx Xxxxx Xxxxxx
Xxxxx Xxx Xxxxxxxxx, XX 00000-0000
This Second Amended and Restated Master Lease Agreement ("Agreement") dated as
of February 26, 1999 amends and restates a Master Lease Agreement ("Master Lease
Agreement") dated March 28, 1997 and an Amended and Restated Lease Agreement
("Amended and Restated Lease") dated as of November 12, 1997, all between
Transamerica Business Credit Corporation ("Lessor") and Sugen, Inc. ("Lessee").
Except as amended and restated by this Agreement, the Master Lease Agreement as
amended by the Amended and Restated Lease and all other documents and schedules
executed by Lessee in connection with the Master Lease Agreement, the Amended
and Restated Lease and this Agreement are ratified and confirmed in all respects
and shall remain in full force and effect. Upon the effectiveness of this
Agreement, all references in any of the lease documents executed by Lessee in
connection with the Master Lease Agreement, the Amended and Restated Lease to
the "Master Lease Agreement", "Master Lease", "this Agreement", or similar
terms, shall mean and refer to the Master Lease Agreement as amended and
restated by this Agreement. The execution, delivery and effectiveness of this
Agreement shall not, except as expressly provided herein, operate as an
amendment to or waiver of any right, power or remedy of Lessor under any of the
lease documents, or constitute an amendment or waiver of any provision of any of
the lease documents.
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 or have entered 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.
1. LEASE. Subject to and upon all of the terms and conditions
of this Agreement and each Schedule, Lessor hereby agrees to lease to Lessee and
Lessee hereby agrees to lease from Lessor the Equipment for the Term (as defined
in Paragraph 2 below) thereof. The timing and financial scope of Lessor's
obligation to enter into Leases hereunder are limited as set forth in the
Commitment Letters executed by Lessor and Lessee, dated as of March 20, 1997,
November 5, 1997, May 5, 1998 and February 5, 1999 and attached hereto as
Exhibits A, B, C and D, respectively, and any Commitment Letters hereafter
executed by Lessor and Lessee and attached hereto as Exhibits (the "Commitment
Letters").
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 which date shall not be prior to delivery,
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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 $[...***...].
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 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. Lessee's commitment
fees paid pursuant to the Commitment Letters shall be applied towards the second
month's rent (after deductions for expenses under paragraph 23) under the
initial Schedules and each monthly rental payment thereafter until fully
applied.
4. LEASE NOT CANCELABLE; LESSEE'S OBLIGATIONS ABSOLUTE. No
Lease may be canceled or terminated except as expressly provided herein. So long
as Lessor has not wrongfully interfered with Lessee's quiet enjoyment of the
Equipment, Lessee's obligation to pay all Rent due or to become due hereunder
shall be absolute and unconditional and shall not be subject to any delay,
reduction, set-off, defense, counterclaim or recoupment for any reason
whatsoever, including any failure of the Equipment or any representations by the
manufacturer or the vendor thereof. If the Equipment is unsatisfactory for any
reason, Lessee shall make any claim solely against the manufacturer or the
vendor thereof and shall, nevertheless, pay Lessor all Rent payable hereunder.
5. SELECTION AND USE OF EQUIPMENT. Lessee agrees that it shall
be responsible for the selection, 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. ONCE ACCEPTED BY LESSEE, 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.
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, 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 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
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* CONFIDENTIAL TREATMENT REQUESTED
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payments for the Renewal Term shall be as set forth in the applicable Schedule.
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 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 Lessee.
10. 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. Lessee
shall make the Equipment and its maintenance records available for inspection by
Lessor at reasonable times and upon reasonable notice. Lessee shall execute and
deliver to Lessor for filing any UCC financing statements or similar documents
Lessor may reasonably request.
11. EQUIPMENT USE. Lessee agrees that the Equipment will be
operated by competent, qualified personnel in connection with Lessee's business
for the purpose for which the Equipment was designed and in accordance with
applicable operating instructions, laws and government regulations, and that
Lessee shall use all reasonable precautions to prevent loss or damage to the
Equipment from fire and other hazards. Lessee shall procure and maintain in
effect all orders, licenses, certificates, permits, approvals and consents
required by federal, state or local laws or by any governmental body, agency or
authority in connection with the delivery, installation, use and operation of
the Equipment.
12. MAINTENANCE. Lessee, at its sole cost and expense, shall
keep the Equipment in a suitable environment as specified by the manufacturer's
guidelines or the equivalent and meet all recertification requirements, and
shall maintain the Equipment in its original condition and working order,
ordinary wear and tear excepted. At the reasonable request of Lessor, Lessee
shall furnish all proof of maintenance.
13. ALTERATION; MODIFICATIONS; PARTS. Lessee may alter or
modify the Equipment only with the prior written consent of Lessor. Any
alteration shall be removed and the Equipment restored to its normal, unaltered
condition at Lessee's expense (without damaging the Equipment's originally
intended function or its value) prior to its return to Lessor. Any part
installed in connection with warranty or maintenance service or which cannot be
removed in accordance with the preceding sentence shall be the property of
Lessor.
14. RETURN OF EQUIPMENT. Except for Equipment that has
suffered a Casualty Loss (as defined in Paragraph 15 below) and is not required
to be repaired pursuant to Paragraph 15 below or Equipment purchased by Lessee
pursuant to Paragraph 9 above, upon expiration 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
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* CONFIDENTIAL TREATMENT REQUESTED
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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 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 [...***...] of the Equipment and (b) the [...***...]
of the Equipment specified in the applicable Schedule [...***...]. Each
liability insurance policy shall 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 Lessor) from the date of the Casualty Loss through the date of payment of
such amounts, whereupon Lessor shall transfer to Lessee, without recourse or
warranty (express or implied), all of Lessor's interest, if any, in and to such
Equipment on an "AS IS, WHERE IS" basis. The proceeds of any insurance payable
with respect to the Equipment shall be applied, at the option of Lessee 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
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
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* CONFIDENTIAL TREATMENT REQUESTED
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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
Lessee 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.
17. LESSOR'S PAYMENT. If Lessee fails to perform its
obligations under Paragraph 15 or 16 above, or Paragraph 23 below, Lessor shall
have the right to substitute performance, in which case, Lessee shall
immediately reimburse Lessor therefor.
18. GENERAL INDEMNITY. Each Lease is a net lease. Therefore,
Lessee shall indemnify Lessor and its successors and assigns against, and hold
Lessor and its successors and assigns harmless from, any and all claims,
actions, damages, obligations, liabilities and all costs and expenses,
including, without limitation, reasonable 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 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 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.
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
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 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. 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.
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21. DEFAULT; NO WAIVER. Lessee or any guarantor of any or all
of the obligations of Lessee hereunder (together with Lessee, the "Lease
Parties") shall be in default under each Lease upon the occurrence of any of the
following events (each, an "Event of Default"): (a) Lessee fails to pay within
ten days of when due any amount required to be paid by Lessee under or in
connection with any Lease; (b) any of the Lease Parties fails to perform 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 Lessee's 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.
22. 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 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
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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 Lessee's indemnity
under Paragraph 18 above, plus a late charge at the rate specified in Paragraph
3 above, less the amount received by Lessor, if any, upon sale or re-let of the
Equipment; and (g) exercise any other right or remedy to recover damages or
enforce the terms of the Leases. Upon the occurrence and continuance of an Event
of Default or an event which with the giving of notice or the passage of time,
or both, would result in an Event of Default, Lessor shall have the right,
whether or not Lessor has made any demand or the obligations of Lessee hereunder
have matured, to appropriate and apply to the payment of the obligations of
Lessee hereunder all security deposits and other deposits (general or special,
time or demand, provisional or final) now or hereafter held by and other
indebtedness or property now or hereafter owing by Lessor to Lessee. Lessor may
pursue any other rights or remedies available at law or in equity, including,
without limitation, rights or remedies seeking damages, specific performance and
injunctive relief. Any failure of Lessor to require strict performance by
Lessee, or any waiver by Lessor of any provision hereunder or under any
Schedule, shall not be construed as a consent or waiver of any other breach of
the same or of any other provision. Any amendment or waiver of any provision
hereof or under any Schedule or consent to any departure by Lessee herefrom or
therefrom shall be in writing and signed by Lessor.
No right or remedy is exclusive of any other provided herein
or permitted by law or equity. All such rights and remedies shall be cumulative
and may be enforced concurrently or individually from time to time.
23. LESSOR'S EXPENSE. Lessee shall pay Lessor on demand all
its reasonable expenses which shall not exceed the amounts set forth in each
Commitment Letter 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.
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; 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 Lessor's
rights, title and interest in and to the Equipment upon Lessor's receipt,
following an event of default and the exercise of the Lessor's remedies, of the
amounts specified in Paragraph 22(f). Any action by Lessee against Lessor for
any default by Lessor under any Lease shall be commenced within one year after
any such cause of action accrues.
25. NOTICES; ADMINISTRATION. Except as otherwise provided
herein, all notices, approvals, consents, correspondence or other communications
required or desired to be given hereunder shall be given in writing and shall be
delivered by overnight courier, hand delivery or certified or registered mail,
postage prepaid, if to Lessor, then to Technology Finance Division, 00 Xxxxxxxxx
Xxxx Xxxx, Xxxxxxxxxx, Xxxxxxxxxxx 00000, Attention: Assistant Vice President,
Lease Administration, with a copy to Lessor at Riverway II, West Office Tower,
0000 Xxxx Xxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000, Attention: Legal Department,
if to Lessee, then to 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.
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
--------------------
* CONFIDENTIAL TREATMENT REQUESTED
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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 creditor's 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.
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 limited attorney-in-fact to execute on behalf of
Lessee and authorizes Lessor to file without Lessee's signature any UCC
financing statements and amendments Lessor deems advisable.
28. FINANCIAL STATEMENTS. Lessee shall deliver to Lessor: (a)
as soon as available, but not later than 120 days after the end of each fiscal
year of Lessee and its consolidated subsidiaries, the consolidated balance
sheet, income statement and statements of cash flows and shareholders equity for
Lessee and its consolidated subsidiaries (the "Financial Statements") for such
year, reported on by independent certified public accountants without an adverse
qualification; and (b) as soon as available, but not later than 60 days after
the end of each of the first three fiscal quarters in any fiscal year of Lessee
and its consolidated subsidiaries, the Financial Statements for such fiscal
quarter, 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 Lessee and upon request of Lessor.
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 nor 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
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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
Lessee. The Additional Rent shall be due immediately upon written notice by
Lessor to Lessee of Lessor's inability to obtain tax benefits, the inclusion of
any amount in income other than the Rent or the recognition of income in respect
of the Rent earlier than anticipated pursuant to this Agreement. The provisions
of this Paragraph 33 shall survive the termination of this Agreement.
34. GOVERNING LAW; SEVERABILITY. EACH LEASE SHALL BE GOVERNED
BY THE LAWS OF THE STATE OF ILLINOIS WITHOUT GIVING EFFECT TO THE CONFLICT OF
LAW PRINCIPLES THEREOF. IF ANY PROVISION SHALL BE HELD TO BE INVALID OR
UNENFORCEABLE, THE VALIDITY AND ENFORCEABILITY OF THE REMAINING PROVISIONS SHALL
NOT IN ANY WAY BE AFFECTED OR IMPAIRED.
LESSEE ACKNOWLEDGES THAT LESSEE HAS READ THIS AGREEMENT AND THE SCHEDULES
HERETO, UNDERSTANDS THEM, AND AGREES TO BE BOUND BY THEIR TERMS AND CONDITIONS.
FURTHER, LESSEE AND LESSOR AGREE THAT THIS AGREEMENT AND THE SCHEDULES DELIVERED
AND SIGNED BY LESSEE AND LESSOR IN CONNECTION HEREWITH FROM TIME TO TIME AND THE
COMMITMENT LETTERS, 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.
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IN WITNESS WHEREOF, the parties hereto have executed or caused
this Agreement to be duly executed by their duly authorized officers as of this
26th day of February, 1999.
SUGEN, INC.
By: /s/ Xxxxx Xxxxxxxx
--------------------------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Senior Vice President and Chief Financial Officer
Hereunto Duly Authorized
Federal Identification Number 00-0000000
TRANSAMERICA BUSINESS CREDIT CORPORATION
By: /s/ Xxxx X. Xxxx
--------------------------------------------------------
Name: Xxxx X. Xxxx
Title: Vice President
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