1
MASTER LEASE AGREEMENT
THIS MASTER LEASE AGREEMENT, dated as of September 9, 1996,
("Agreement"), between General Electric Capital Corporation, with an office at
000 Xxxxxxxxxxxxx Xxxxxx Xxxxx 000, Xxxx Xxxxxx, XXXXXXXX 00000, (hereinafter
called, together with its successors and assigns, if any, "Lessor"), and
Nexstar Pharmaceuticals, Inc., a corporation, organized and existing under the
laws of the State of Colorado, with its mailing address and chief place of
business at 0000 Xxxxxxxxxx Xxxxx Xxxxx 000 Xxxxxxx, XX 00000 (hereinafter
called "Lessee").
WITNESSETH:
I. LEASING:
(a) Subject to the terms and conditions set forth below, Lessor
agrees to lease to Lessee, and Lessee agrees to lease from Lessor, the
equipment ("Equipment") described in Annex A to any schedule hereto
("Schedule") and this Agreement shall be effective from and after the date of
execution hereof. Terms defined in a Schedule and not otherwise defined herein
shall have the meanings ascribed to them in such Schedule.
(b) The obligation of Lessor to purchase Equipment from the
manufacturer or supplier thereof ("Supplier",) and to lease the same to Lessee
under any Schedule shall be subject to receipt by Lessor, prior to the Lease
Commencement Date (with respect to such Equipment), of each of the following
documents in form and substance satisfactory to Lessor: (i) a Schedule relating
to the Equipment then to be leased hereunder, (ii) a Purchase Order Assignment
and Consent in the form of Annex B to the applicable Schedule, unless Lessor
shall have delivered its purchase order for such Equipment, (iii) evidence of
insurance which complies with the requirements of Section X, and (iv) such
other documents as Lessor may reasonably request. As a further condition to
such obligations of Lessor, Lessee shall, upon delivery of such Equipment (but
not later than the Last Delivery Date specified in the applicable Schedule)
execute and deliver to Lessor a Certificate of Acceptance (in the form of Annex
C to the applicable Schedule) covering such Equipment. Lessor hereby appoints
Lessee its agent for inspection and acceptance of the Equipment from the
Supplier. Upon execution by Lessee of any Certificate of Acceptance, the
Equipment described thereon shall be deemed to have been delivered to, and
irrevocably accepted by, Lessee for lease hereunder.
II. TERM, RENT AND PAYMENT:
(a) The rent payable hereunder and Lessee's right to use the
Equipment shall commence on the date of execution by Lessee of the Certificate
of Acceptance for such Equipment ("Lease Commencement Date"). The term of this
Agreement shall be the period specified in the applicable Schedule. If any term
is extended, the word "term" shall be deemed to refer to all extended terms,
and all provisions of this Agreement shall apply during any extended terms,
except as may be otherwise specifically provided in writing.
(b) Rent shall be paid to Lessor at its address stated above,
except as otherwise directed by Lessor. Payments of rent shall be in the
amount set forth in, and due in accordance with, the provisions of the
applicable Schedule. If one or more Advance Rentals are payable, such Advance
Rental shall be (i) set forth on the applicable Schedule, (ii) due upon
acceptance by Lessor of such Schedule, and (iii) when received by Lessor,
applied to the first rent payment and the balance, if any, to the final rental
payment(s) under such Schedule. In no event shall any Advance Rental or any
other rent payments be refunded to Lessee. If rent is not paid within ten days
of its due date, Lessee agrees to pay a late charge of five cents ($.05) per
dollar on, and in addition to, the amount of such rent but not exceeding the
lawful maximum, if any.
(c) So long as no default shall have occurred and be continuing
under the terms of this agreement, neither Lessor nor its agents, employees,
creditors, or assigns will disturb Lessee's quiet, peaceful and uninterrupted
possession of the Equipment during the term of this Lease and Lessee's
uninterrupted use thereof for its intended purpose.
III. RENT ADJUSTMENT:
(a) The periodic rent payments in each Schedule have been
calculated on the assumption (which, as between Lessor and Lessee, is mutual)
that the maximum effective corporate income tax rate (including any surcharge
but exclusive of any minimum tax rate) for calendar-year taxpayers ("Effective
Rate") will be thirty-five percent (35%) for each year of the lease term.
(b) If, solely as a result of Congressional enactment of any law
(including, without limitation) any modification of, or amendment or addition
to, the Internal Revenue Code of 1986 ("Code"), the Effective Rate is higher
than thirty-five percent (35%) for any year during the lease term, then Lessor
shall have the right to increase such rent payments by requiring payment of a
single additional sum equal to the product of (i) the Effective Rate (expressed
as a decimal) for such year less.35 (or, in the event that any adjustment has
been made hereunder for any previous year, the Effective Rate (expressed as a
decimal) used in calculating the next previous adjustment) times (ii) the
adjusted Stipulated Loss Value divided by the difference between the new
Effective Tax Rate (expressed as a decimal) and one (1). The adjusted
Stipulated Loss Value shall be the Stipulated Loss Value (calculated as of the
first rental due in the year for which such adjustment is being made) less the
product of the Tax Benefits that would be allowable under Section 168 of the
Code (as of the first day of the year for which such adjustment is being made
and all subsequent years of the lease term). Lessee shall pay to Lessor the
full amount of the additional rent payment on the later of (i) receipt of
notice or (ii) the first day of the year for which such adjustment is being
made.
(c) Lessee's obligations under this Section III shall survive any
expiration or termination of this Agreement.
IV. TAXES: Except as provided in Sections III and XV(c), Lessee shall have
no liability for taxes imposed by the United States of America or any State or
political subdivision thereof which are on or measured by the net income of
Lessor. Lessee shall report (to the extent that it is legally permissible) and
pay promptly all other taxes, fees and assessments due, imposed, assessed or
levied against any Equipment (or the purchase, ownership, delivery, leasing,
possession, use or operation thereof), this Agreement (or any rentals or
receipts hereunder), any Schedule, Lessor or Lessee by any foreign, federal,
state or local government or taxing authority during or related to the term of
this Agreement, including, without limitation, all license and registration
fees, and all sales, use, personal property, excise, gross receipts, franchise,
stamp or other taxes, imposts, duties and charges, together with any penalties,
fines or interest thereon (all hereinafter called "Taxes"). Lessee shall (i)
reimburse Lessor upon receipt of written request for reimbursement for any
Taxes charged to or assessed against Lessor, (ii) on request of Lessor, submit
to Lessor written evidence of Lessee's payment of Taxes, (iii) on all reports
or returns show the ownership of the Equipment by Lessor, and (iv) send a copy
thereof to Lessor. The obligations of Lessee under this Section IV shall
survive any expiration or termination of this Agreement.
2
V. REPORTS:
(a) Lessee will notify Lessor in writing, within ten (10) days
after any tax or other lien shall attach to any Equipment, of the full
particulars thereof and of the location of such Equipment on the date of such
notification.
(b) Lessee will within ninety (90) days of the close of each
fiscal year of Lessee, deliver to Lessor, Lessee's complete financial
statements, certified by a recognized firm of certified public accountants.
Lessee will, within thirty (30) days after the date on which they are filed,
deliver to Lessor all Forms 10-K and 10-Q filed with the Securities and
Exchange Commission. Upon request Lessee will deliver to Lessor quarterly,
within ninety (90) days of the close of each fiscal quarter of Lessee, in
reasonable detail, copies of Lessee's quarterly financial report certified by
the chief financial officer of Lessee. Upon request, Lessee will deliver to
Lessor one copy of each financial statement, report, notice or proxy statement
sent by Lessee to shareholders generally and one copy of each regular or
periodic report, registration statement or prospectus filed by Lessee with any
securities exchange or the Securities and Exchange Commission or any successor
agency, such copies to be delivered to Lessor within thirty (30) days after
they become available or are otherwise filed.
(c) Lessee will permit Lessor to inspect any Equipment during
normal business hours.
(d) Lessee will keep the Equipment at the Equipment Location
(specified in the applicable Schedule) and will give Lessor prior written
notice of any relocation of Equipment. Upon the written request of Lessor,
Lessee will notify Lessor forthwith in writing of the location of any Equipment
as of the date of such notification.
(e) Lessee will promptly and fully report to Lessor in writing if
any Equipment is lost or damaged (where the estimated repair costs would exceed
ten percent (10%) of its then fair market value), or is otherwise involved in
an accident causing personal injury or property damage.
(f) Within thirty (30) days after any request by Lessor, Lessee
will furnish a certificate of an authorized officer of Lessee stating that he
has reviewed the activities of Lessee and that, to the best of his knowledge,
there exists no default (as described in Section XII) or event which with
notice or lapse of time (or both) would become such a default.
VI. DELIVERY, USE AND OPERATION:
(a) All Equipment shall be shipped directly from the Supplier to
Lessee.
(b) Lessee agrees that the Equipment will be used by Lessee solely in
the conduct of its business and in a manner complying with all applicable
federal, state, and local laws and regulations and any applicable insurance
policies and Lessee shall not discontinue use of the Equipment.
(c) LESSEE SHALL NOT ASSIGN, MORTGAGE, SUBLET OR HYPOTHECATE ANY
EQUIPMENT, OR THE INTEREST OF LESSEE HEREUNDER, NOR SHALL LESSEE REMOVE ANY
EQUIPMENT FROM THE CONTINENTAL UNITED STATES, WITHOUT THE PRIOR WRITTEN CONSENT
OF THE LESSOR.
(d) Lessee will keep the Equipment free and clear of all liens and
encumbrances other than those which result from acts of Lessor.
VII. SERVICE:
(a) Lessee will, at its sole expense, maintain each unit of
Equipment in good operating order, repair, condition and appearance in
accordance with manufacturer's recommendations, normal wear and tear excepted.
Lessee shall, if at any time requested by Lessor, affix in a prominent position
on each unit of Equipment plates, tags or other identifying labels showing
ownership thereof by Lessor.
(b) Lessee will not, without the prior consent of Lessor, affix or
install any accessory, equipment or device on any Equipment if such addition
will impair the originally intended function or use of such Equipment. All
additions, repairs, parts, supplies, accessories, equipment, and devices
furnished, attached or affixed to any Equipment which are not readily removable
shall be made only in compliance with applicable law, including Internal
Revenue Service guidelines, shall be free and clear of all liens, encumbrances
or rights of others, and shall become the property of Lessor. Lessee will not,
without the prior written consent of Lessor and subject to such conditions as
Lessor may impose for its protection, affix or install any Equipment to or in
any other personal or real property.
(c) Any alterations or modifications to the Equipment that may, at
any time during the term of this Agreement, be required to comply with any
applicable law, rule or regulation shall be made at the expense of Lessee.
VIII. STIPULATED LOSS VALUE: Lessee shall promptly and fully notify Lessor
in writing if any unit of Equipment shall be or become worn out, lost, stolen,
destroyed, irreparably damaged in the reasonable determination of Lessee, or
permanently rendered unfit for use from any cause whatsoever (such occurrences
being hereinafter called "Casualty Occurrences"). On the rental payment date
next succeeding a Casualty Occurrence (the "Payment Date"), Lessee shall pay
Lessor the sum of (x) the Stipulated Loss Value of such unit calculated as of
the rental next preceding such Casualty Occurrence ("Calculation Date") and (y)
all rentals and other amounts which are due hereunder as of the Payment Date.
Upon payment of all sums due hereunder, the term of this lease as to such unit
shall terminate and (except in the case of the loss, theft or complete
destruction of such unit) Lessor shall be entitled to recover possession of
such unit.
IX. LOSS OR DAMAGE: Lessee hereby assumes and shall bear the entire risk
of any loss, theft, damage to, or destruction of, any unit of Equipment from
any cause whatsoever from the time the Equipment is shipped to Lessee.
X. INSURANCE: Lessee agrees, at its own expense, to keep all Equipment
insured for such amounts and against such hazards as Lessor may require,
including, but not limited to, insurance for damage to or loss of such
Equipment and liability coverage for personal injuries, death or property
damage, with Lessor named as additional insured and with a loss payable clause
in favor of Lessor, as its interest may appear, irrespective of any breach of
warranty or other act or omission of Lessee. All such policies shall be with
companies, and on terms, satisfactory to Lessor. Lessee agrees to deliver to
Lessor evidence of insurance satisfactory to Lessor. No insurance shall be
subject to any co-insurance clause. Lessee hereby appoints Lessor as Lessee's
3
attorney-in-fact to make proof of loss and claim for insurance, and to make
adjustments with insurers and to receive payment of and execute or endorse all
documents, checks or drafts in connection with payments made as a result of
such insurance policies. Any expense of Lessor in adjusting or collecting
insurance shall be borne by Lessee. Lessee will not make adjustments with
insurers except (i) with respect to claims for damage to any unit of Equipment
where the repair costs do not exceed ten percent (10%) of such unit's fair
market value, or (ii) with Lessor's written consent. Said policies shall
provide that the insurance may not be altered or cancelled by the insurer until
after thirty (30) days' written notice to Lessor. Lessor may, at its option,
apply proceeds of insurance, in whole or in part, to (i) repair or replace
Equipment or any portion thereof, or (ii) satisfy any obligation of Lessee to
Lessor hereunder.
XI. RETURN OF EQUIPMENT:
(a) Upon any expiration or termination of this Agreement or any
Schedule, Lessee shall promptly, at its own cost and expense: (i) perform any
testing and repairs required to place the affected units of Equipment in the
same condition and appearance as when received by Lessee (reasonable wear and
tear excepted) and in good working order for their originally intended purpose;
(ii) if deinstallation, disassembly or crating is required, cause such units to
be deinstalled, disassembled and crated by an authorized manufacturer's
representative or such other service person as is satisfactory to Lessor; and
(iii) return such units to a location within the continental United States as
Lessor shall direct.
(b) Until Lessee has fully complied with the requirements of
Section XI(a) above. Lessee's rent payment obligation and all other obligations
under this Agreement shall continue from month to month notwithstanding any
expiration or termination of the lease term. Lessor may terminate such
continued leasehold interest upon ten (10) days' notice to Lessee.
XII. DEFAULT:
(a) Lessor may in writing declare this Agreement in default if:
Lessee breaches its obligation to pay rent or any other sum when due and fails
to cure the breach within ten (10) days; Lessee breaches any of its insurance
obligations herewith under Section X; Lessee breaches any of its other
obligations hereunder and fails to cure that breach within thirty (30) days
after written notice thereof: any representation or warranty made by or on
behalf of Lessee in connection with this Agreement shall be false or misleading
in any material respect; Lessee or any guarantor becomes insolvent or ceases to
do business as a going concern; any Equipment is illegally used; a petition is
filed by or against Lessee or any guarantor under any bankruptcy or insolvency
laws; there is a revocation or anticipatory repudiation of any guarantor's
obligations under any guaranty issued in connection with this Agreement; Lessee
or any guarantor shall be in default under any material obligation and the
applicable grace period with respect thereto shall have expired; Lessee or any
guarantor shall have terminated its existence, consolidated with, merged into
or conveyed or leased substantially all of its assets as an entirety to any
person (such actions being referred to as an "Event"), unless not less than
sixty (60) days prior to such Event: (x) such person is organized and existing
under the laws of the United States or any state, and executes and delivers to
Lessor an agreement containing an effective assumption by such person of the
due and punctual performance of this Lease or guaranty thereof, as the case may
be, and (y) Lessor is reasonably satisfied as to the credit worthiness of such
person; if Lessee or any guarantor is a privately held corporation and
effective control of Lessee's or any guarantor's voting capital stock, issued
and outstanding from time to time, is not retained by the present stockholders
(unless Lessee shall have provided sixty (60) days' prior written notice to
Lessor of the proposed disposition of stock and Lessor shall have consented
thereto in writing); or if Lessee or any guarantor is a publicly held
corporation as a result of or in connection with a material change in the
ownership of Lessee's or any guarantor's capital stock, Lessee's or any
guarantor's debt-to-worth ratio equals or exceeds twice Lessee's or any
guarantor's debt-to-worth ratio as of the date of this Lease (unless Lessor
shall have given its prior written consent thereto), if Lessee or any guarantor
is a natural person, any death or incompetency of Lessee or such guarantor. As
used herein, "debt-to-worth ratio" shall mean the ratio of (x) total
liabilities which, in accordance with generally accepted accounting principles
("GAAP") would be included in the liability side of a balance sheet, to (y)
tangible net worth including the sum of the par or stated value of all
outstanding capital stock, surplus and undivided profits, less any amounts
attributable to goodwill, patents, copyrights, mailing lists, catalogs,
trademarks, bond discount and underwriting expenses, organization expense and
other intangibles, all determined in accordance with GAAP. Any provision of
this Agreement to the contrary notwithstanding, Lessor may exercise all rights
and remedies hereunder independently with respect to each Schedule.
(b) After default, at the request of Lessor, Lessee shall comply
with the provisions of Section XI(a). Lessee hereby authorizes Lessor to
enter, with or without legal process, any premises where any Equipment is
believed to be and take possession thereof. Lessee shall, without further
demand, forthwith pay to Lessor as liquidated damages for loss of a bargain and
not as a penalty, the Stipulated Loss Value of the Equipment (calculated as of
the rental date next preceding the declaration of default), and all rentals and
other sums then due hereunder. Lessor may terminate this Agreement as to any or
all of the Equipment, provided that a termination shall occur only upon written
notice by Lessor to Lessee and only as to the items of Equipment specified in
any such notice. Lessor may, but shall not be required to, sell Equipment at
private or public sale, in bulk or in parcels, with or without notice, and
without having the Equipment present at the place of sale; or Lessor may, but
shall not be required to, lease, otherwise dispose of or keep idle all or part
of the Equipment; and Lessor may use Lessee's premises for any or all of the
foregoing without liability for rent, costs, damages or otherwise. The proceeds
of sale, lease or other disposition, if any, shall be applied in the following
order of priorities: (1) to pay all of Lessor's costs, charges and expenses
incurred in taking, removing, holding, repairing and selling, leasing or
otherwise disposing of Equipment; then, (2) to the extent not previously paid
by Lessee, to pay Lessor all sums due from Lessee hereunder; then (3) to
reimburse to Lessee any sums previously paid by Lessee as liquidated damages;
and (4) any surplus shall be retained by Lessor. Lessee shall pay any
deficiency in (1) and (2) forthwith.
(c) The foregoing remedies are cumulative, and any or all thereof
may be exercised in lieu of or in addition to each other or any remedies at
law, in equity, or under statute. Lessee waives notice of sale or other
disposition (and the time and place thereof), and the manner and place of any
advertising. Lessee shall pay Lessor's actual attorney's fees incurred in
connection with the enforcement, assertion, defense or preservation of Lessor's
rights and remedies hereunder, or if prohibited by law, such lesser sum as may
be permitted. Waiver of any default shall not be a waiver of any other or
subsequent default.
(d) Any default under the terms of this or any other agreement
between Lessor and Lessee may be declared by Lessor a default under this and
any such other agreement.
XIII. ASSIGNMENT: Lessor may, without the consent of Lessee, assign
this Agreement or any Schedule or any interests therein. Lessee agrees that if
Lessee receives written notice of an assignment from Lessor, Lessee will pay
all rent and all other amounts payable under any assigned Equipment Schedule to
such assignee or as instructed by Lessor. Lessee further agrees to confirm in
writing receipt of the notice of assignment as may be reasonably requested by
assignee. Lessee hereby waives and agrees not to assert against any such
assignee any defense, set-off, recoupment claim or counterclaim which Lessee
has or may at any time have against Lessor for any reason whatsoever.
4
XIV. NET LEASE; NO SET-OFF, ETC: This Agreement is a net lease. Lessee's
obligation to pay rent and other amounts due hereunder shall be absolute and
unconditional. Lessee shall not be entitled to any abatement or reductions of,
or set-offs against, said rent or other amounts, including, without limitation,
those arising or allegedly arising out of claims (present or future, alleged or
actual, and including claims arising out of strict tort or negligence of
Lessor) of Lessee against Lessor under this Agreement or otherwise. Nor shall
this Agreement terminate or the obligations of Lessee be affected by reason of
any defect in or damage to, or loss of possession, use or destruction of, any
Equipment from whatsoever cause. It is the intention of the parties that rents
and other amounts due hereunder shall continue to be payable in all events in
the manner and at the times set forth herein unless the obligation to do so
shall have been terminated pursuant to the express terms hereof.
XV. INDEMNIFICATION:
(a) Lessee hereby agrees to indemnify, save and keep harmless
Lessor, its agents, employees, successors and assigns from and against any and
all losses, damages, penalties, injuries, claims, actions and suits, including
legal expenses, of whatsoever kind and nature, in contract or tort or
otherwise, unless caused by the gross negligence or willful misconduct of
Lessor, and including, but not limited to, Lessor's strict liability in tort,
arising out of (i) the selection, manufacture, purchase, acceptance or
rejection of Equipment, the ownership of Equipment during the term of this
Agreement, and the delivery, lease, possession, maintenance, uses, condition,
return or operation of Equipment (including, without limitation, latent and
other defects, whether or not discoverable by Lessor or Lessee and any claim
for patent, trademark or copyright infringement or environmental damage) or
(ii) the condition of Equipment sold or disposed of after use by Lessee, any
sublessee or employees of Lessee. Lessee shall, upon request, defend any
actions based on, or arising out of, any of the foregoing.
(b) The Lease has been entered into on the assumption that (i) the
Lease will be treated for federal income tax purposes as a true lease and the
Lessor will be treated as the owner and lessor of the Equipment and the Lessee
will be treated as the lessee of the Equipment, and (ii) on the Lease
Commencement Date for any unit of Equipment, such unit will qualify for all of
the items of deduction and credit specified in Section C of applicable Schedule
("TAX BENEFITS") in the hands of Lessor (all references to Lessor in this
Section XV include Lessor and the consolidated tax payer group of which Lessor
is a member).
(c) If for any reason whatsoever (i) tax counsel of Lessor shall
determine that Lessor is not entitled to claim on its federal income tax return
all or any portion of the Tax Benefits with respect to any Equipment or (ii)
any such Tax Benefit claimed on the federal income tax return of Lessor is
disallowed or adjusted by the Internal Revenue Service or (iii) any such Tax
Benefit is recomputed or recaptured (any such determination, disallowance,
adjustment, recomputation or recapture being hereinafter called a "LOSS"), then
Lessee shall pay to Lessor, as an indemnity and as additional rent, such amount
as shall, in the reasonable opinion of Lessor, cause Lessor's after-tax
economic yields and cash flows, computed on the same assumptions, including tax
rates (unless any adjustment has been made under Section III hereof, in which
case the Effective Rate used in the next preceding adjustment shall be
substituted), and were utilized by Lessor in originally evaluating the
transaction (such yields and flows being hereinafter called the "NET ECONOMIC
RETURN") to equal the Net Economic Return that would have been realized by
Lessor if such Loss had not occurred. Such amount shall be payable upon demand
accompanied by a statement describing in reasonable detail such Loss and the
computation of such amount. Anything in this paragraph to the contrary
notwithstanding, Lessee shall have no obligation to indemnify Lessor from or
against any such Loss to the extent that such Loss is caused by: (i) any
failure by Lessor to properly or timely claim on its federal income tax return
any Tax Benefits on any Equipment (unless such failure is based upon a
determination by tax counsel of Lessor that Lessor is not entitled to claim
such Tax Benefits with respect to such Equipment); (ii) any failure of Lessor
to have sufficient taxable income to benefit from the Tax Benefits; (iii) any
liability of the Lessor for any alternative minimum taxes; (iv) the status of
Lessor for purposes of federal income taxes; (v) any sale or other disposition
of any Equipment by Lessor other than after an event of default by Lessee;
(vi) any tax election made or not made by Lessor relating to the Tax Benefits;
or (vii) any event which results in a payment by Lessee in an amount equal to,
or measured by, the Stipulated Loss Value to the extent that such Loss was
included in Lessor's calculation of such Stipulated Loss Value.
(d) All of Lessor's rights, privileges and indemnities contained
in this Section XV shall survive the expiration or other termination of this
Agreement and the rights, privileges and indemnities contained herein are
expressly made for the benefit of, and shall be enforceable by Lessor, its
successors and assigns.
XVI. DISCLAIMER: LESSEE ACKNOWLEDGES THAT IT HAS SELECTED THE EQUIPMENT
WITHOUT ANY ASSISTANCE FROM LESSOR, ITS AGENTS OR EMPLOYEES. LESSOR DOES NOT
MAKE, HAS NOT MADE, NOR SHALL LESSOR BE DEEMED TO MAKE OR HAVE MADE, ANY
WARRANTY OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, WRITTEN OR ORAL, WITH
RESPECT TO THE EQUIPMENT LEASED HEREUNDER OR ANY COMPONENT THEREOF, INCLUDING,
WITHOUT LIMITATION, ANY WARRANTY AS TO DESIGN, COMPLIANCE WITH SPECIFICATIONS,
QUALITY OF MATERIALS OR WORKMANSHIP, MERCHANTABILITY, FITNESS FOR ANY PURPOSE,
USE OR OPERATION, SAFETY, PATENT, TRADEMARK OR COPYRIGHT INFRINGEMENT, OR TITLE.
All such risks, as between Lessor and Lessee, are to be borne by Lessee. Without
limiting the foregoing, Lessor shall have no responsibility or liability to
Lessee or any other person with respect to any of the following, regardless of
any negligence of Lessor (i) any liability, loss or damage caused or alleged to
be caused directly or indirectly by any Equipment, any inadequacy thereof, any
deficiency or defect (latent or otherwise) therein, or any other circumstance in
connection therewith; (ii) the use, operation or performance of any Equipment or
any risks relating thereto; (iii) any interruption of service, loss of business
or anticipated profits or consequential damages; or (iv) the delivery,
operation, servicing, maintenance, repair, improvement or replacement of any
Equipment. If, and so long as, no default exists under this Lease, Lessee shall
be, and hereby is, authorized during the term of this Lease to assert and
enforce, at Lessee's sole cost and expense, from time to time, in the name of
and for the account of Lessor and/or Lessee, as their interests may appear,
whatever claims and rights Lessor may have against any Supplier of the
Equipment.
XVII. REPRESENTATIONS AND WARRANTIES OF LESSEE: Lessee hereby represents and
warrants to Lessor that on the date hereof and on the date of execution of each
Schedule:
(a) Lessee has adequate power and capacity to enter into, and
perform under, this Agreement and all related documents (together, the
"DOCUMENTS") and is duly qualified to do business wherever necessary to carry
on its present business and operations, including the jurisdiction(s) where the
Equipment is or is to be located.
(b) The Documents have been duly authorized, executed and
delivered by Lessee and constitute valid, legal and binding agreements,
enforceable in accordance with their terms, except to the extent that the
enforcement of remedies therein provided may be limited under applicable
bankruptcy and insolvency laws.
(c) No approval, consent or withholding of objections is required
from any governmental authority or instrumentality with respect to the entry
into or performance by Lessee of the Documents except such as have already been
obtained.
5
(d) The entry into and performance by Lessee of the Documents will
not: (i) violate any judgment, order, law or regulation applicable to Lessee
or any provision of Lessee's Certificate of Incorporation or By-Laws; or ( ii)
result in any breach of, constitute a default under or result in the creation
of any lien, charge, security interest or other encumbrance upon any Equipment
pursuant to any indenture, mortgage, deed of trust, bank loan or credit
agreement or other instrument (other than this Agreement) to which Lessee is a
party.
(e) There are no suits or proceedings pending or threatened in
court or before any commission, board or other administrative agency against or
affecting Lessee, which if decided adversely will have a material adverse
effect on the ability of Lessee to fulfill its obligations under this
Agreement.
(f) The Equipment accepted under any Certificate of Acceptance is
and will remain tangible personal property.
(g) Each financial statement delivered to Lessor has been prepared
in accordance with GAAP consistently applied, and since the date of the most
recent such financing statement, there has been no material adverse change.
(h) Lessee is and will be at all times validly existing and in
good standing under the laws of the State of its incorporation (specified in
the first sentence of this Agreement).
(i) The Equipment will at all times be used for commercial or
business purposes.
XVIII. PURCHASE OPTION:
(a) So long as no default exists hereunder and the lease has not
been earlier terminated, Lessee may at lease expiration, upon at least one
hundred twenty (120) days prior written notice to Lessor, purchase all (but not
less than all) of the Equipment in any Schedule on an AS IS, WHERE IS BASIS
without recourse to or warranty from Lessor, express or implied ("AS IS BASIS")
for cash equal to its then Fair Market Value (plus all applicable sales taxes).
(b) "Fair Market Value", shall mean the price which a willing
buyer (who is neither a lessee in possession nor a used equipment dealer) would
pay for the Equipment in an arm's-length transaction to a willing seller under
no compulsion to sell; provided, however, that in such determination: (i) the
Equipment shall be assumed to be in the condition in which it is required to be
maintained and returned under this Agreement; (ii) in the case of any installed
Equipment, that Equipment shall be valued on an installed basis; and (iii)
costs of removal from current location shall not be a deduction from such
valuation. If Lessor and Lessee are unable to agree on the Fair Market Value at
least ninety (90) days before lease expiration, Lessor, shall appoint an
independent appraiser (reasonably acceptable to Lessee) to determine Fair
Market Value, and that determination shall be final, binding and conclusive.
Lessee shall bear all costs associated with any such appraisal.
(c) Lessee shall be deemed to have waived this option unless it
provides Lessor with written notice of its irrevocable election to exercise the
same within fifteen (15) days after Fair Market Value is determined (by
agreement or appraisal).
XIX. MISCELLANEOUS:
(A) LESSEE HEREBY UNCONDITIONALLY WAIVES ITS RIGHTS TO A JURY
TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF, DIRECTLY OR
INDIRECTLY, THIS LEASE, ANY OF THE RELATED DOCUMENTS, ANY DEALINGS BETWEEN
LESSEE AND LESSOR RELATING TO THE SUBJECT MATTER OF THIS TRANSACTION OR ANY
RELATED TRANSACTIONS; AND/OR THE RELATIONSHIP THAT IS BEING ESTABLISHED BETWEEN
LESSEE AND LESSOR. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING
OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT (INCLUDING, WITHOUT
LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER
COMMON LAW AND STATUTORY CLAIMS). THIS WAIVER IS IRREVOCABLE MEANING THAT IT
MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THE WAIVER SHALL APPLY TO
ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS
LEASE, ANY RELATED DOCUMENTS, OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING
TO THIS TRANSACTION OR ANY RELATED TRANSACTION. IN THE EVENT OF LITIGATION,
THIS LEASE MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
(b) Unless and until Lessee exercises its rights under Section
XVIII above, nothing herein contained shall give or convey to Lessee any right,
title or interest in and to any Equipment except as a lessee. Any cancellation
or termination by Lessor, pursuant to the provision of this Agreement, any
Schedule, supplement or amendment hereto, or the lease of any Equipment
hereunder, shall not release Lessee from any then outstanding obligations to
Lessor hereunder. All Equipment shall at all times remain personal property of
Lessor regardless of the degree of its annexation to any real property and
shall not by reason of any installation in, or affixation to, real or personal
property become a part thereof.
(c) Time is of the essence of this Agreement. Lessor's failure at
any time to require strict performance by Lessee of any of the provisions
hereof shall not waive or diminish Lessor's right thereafter to demand strict
compliance therewith. Lessee agrees, upon Lessor's request, to execute any
instrument necessary or expedient for filing, recording or perfecting the
interest of Lessor. All notices required to be given hereunder shall be deemed
adequately given if sent by registered or certified mail to the addressee at
its address stated herein, or at such other place as such addressee may have
designated in writing and shall be deemed effective when sent. This Agreement
and any Schedule and Annexes thereto constitute the entire agreement of the
parties with respect to the subject matter hereof. NO VARIATION OR MODIFICATION
OF THIS AGREEMENT OR ANY WAIVER OF ANY OF ITS PROVISIONS OR CONDITIONS, SHALL
BE VALID UNLESS IN WRITING AND SIGNED BY AN AUTHORIZED REPRESENTATIVE OF THE
PARTIES HERETO.
LESSOR
----------
LESSEE ILLEGIBLE
----------
(d) In case of a failure of Lessee to comply with any provision of
this Agreement, Lessor shall have the right, but shall not be obligated, to
effect such compliance, in whole or in part; and all moneys spent and expenses
and obligations incurred or assumed by Lessor in effecting such compliance
shall constitute additional rent due to Lessor within five days after the date
Lessor sends notice to Lessee requesting payment. Lessor's effecting such
compliance shall not be a waiver of Lessee's default.
(e) Any rent or other amount not paid to Lessor when due hereunder
shall bear interest, both before and after any judgment or termination hereof,
at the lesser of eighteen percent (18%) per annum or the maximum rate allowed
by law. Any provisions in this Agreement and any Schedule which are in conflict
with any statute, law or applicable rule shall be deemed omitted, modified or
altered to conform thereto.
6
IN WITNESS WHEREOF. Lessee and Lessor have caused this Agreement to be
executed by their duly authorized representatives as of the date first above
written.
LESSOR: LESSEE:
GENERAL ELECTRIC CAPITAL CORPORATION NEXSTAR PHARMACEUTICALS, INC.
By: /s/ ILLEGIBLE By: /s/ XXXXXXX X. XXXX
-------------------------------- ------------------------------
Name: ILLEGIBLE Name: Xxxxxxx X. Xxxx
------------------------------- ----------------------------
Title: ILLEGIBLE Title: VP and CFO
------------------------------ ---------------------------
7
ADDENDUM NO. 1
TO MASTER LEASE AGREEMENT
DATED AS OF September 9, 1996
THIS ADDENDUM (this "Addendum") amends and supplements the above
referenced lease (the "Lease"), between General Electric Capital Corporation
("Lessor") and Nexstar Pharmaceuticals, Inc. ("Lessee") and is hereby
incorporated into the Lease as though fully set forth therein. Capitalized
terms not otherwise defined herein shall have the meanings set forth in the
Lease.
The Lease is hereby amended as follows:
1. XXI. ADDITIONAL COVENANTS.
(a) At all times during the term of the Lease. Lessee
shall maintain: (i) unrestricted cash, cash equivalents and investment
grade securities (assuming such investment securities are highly
liquid) of at least $10,000,000; (ii) a tangible net worth of no less
than $60,000,000; and (iii) a total liabilities to tangible net worth
ratio of no more than .75:1, or within fifteen (15) days after Lessee
ceases to satisfy any such requirements. Lessee shall cause to be
delivered to Lessor an irrevocable standby letter of credit as
described in Section XXI(c) below, Unrestricted cash, cash equivalents
and investment grade securities shall be defined as being net of any
non-GE Capital contingent liabilities associated with other lease or
loan cash triggers, pledge agreements, etc. Except as defined herein.
accounting terms used herein shall be as defined herein, shall be as
defined, and all calculations hereunder shall be made, in accordance
with GAAP.
(b) Lessee's chief financial officer shall notify Lessor
of the amount of Lessee's unrestricted cash, cash equivalents,
investment grade securities, tangible net worth and total liabilities
to tangible net worth ratio, and shall certify that such amounts are
in compliance with the requirements of Section XXI(a) above, such
notification and certification shall be provided within fifteen (15)
days after the end of each quarter, reflecting such information as of
the end of the quarter immediately preceding such notice, unless
Lessee's unrestricted cash, cash equivalents and investment grade
securities fall below $30,000,000.00 at which point reporting becomes
monthly. If Lessee fails timely to provide such notification and
compliance certificates, within fifteen (15) days after such failure,
Lessee shall cause to be delivered to Lessor an irrevocable standby
letter of credit as described in Section XXI(c) below. A failure by
Lessee to provide such Letter of Credit or otherwise comply with this
Section XXI shall be a default hereunder.
(c) The irrevocable standby letter of credit provided
pursuant to this addendum shall be (i) in the amount of the then
Stipulated Loss Value of all of the Schedules, (ii) issued by a bank
which is acceptable to Lessor in its sole discretion, (iii) in the
form attached as Exhibit A or as may be acceptable to Lessor in its
sole discretion, and (iv) for an initial term of one (1) year with
automatic annual renewals thereafter (without amendment except for
extension of the then current expiration date by an additional year)
until Lessee has received written notice from Lessor to the effect
that the Letter of credit is being released in its entirety. Lessee
shall also execute a Letter of Credit Agreement in the form attached
as Exhibit B.
2. SECTION XII. All Schedules under this Lease shall be for a
minimum of $150,000.00.
Except as expressly modified hereby, all terms and provisions of the Lease
shall remain in full force and effect. This Addendum is not binding nor
effective with respect to the Lease or the Equipment until executed on behalf
of Lessor and Lessee by authorized representatives of Lessor and Lessee.
IN WITNESS WHEREOF, Lessee and Lessor have caused this Addendum to be executed
by their duly authorized representatives as of the date first above written.
LESSOR: LESSEE:
GENERAL ELECTRIC CAPITAL CORPORATION NEXSTAR PHARMACEUTICALS, INC.
By: /s/ ILLEGIBLE By: /s/ XXXXXXX X. XXXX
-------------------------------- ------------------------------
Name: ILLEGIBLE Name: Xxxxxxx X. Xxxx
------------------------------- ----------------------------
Title: ILLEGIBLE Title: VP and CFO
------------------------------ ---------------------------
Attest:
By: /s/ XXXXX XXXXXX
------------------------------
8
ADDENDUM NO. 2
TO MASTER LEASE AGREEMENT
DATED AS OF SEPTEMBER 9, 1996
THIS ADDENDUM (this "ADDENDUM") amends and supplements the above
referenced lease (the "LEASE"), between GENERAL ELECTRIC CAPITAL CORPORATION
("LESSOR") and NEXSTAR PHARMACEUTICALS, INC. ("LESSEE") and is hereby
incorporated into the Lease as though fully set forth therein. Capitalized terms
not otherwise defined herein shall have the meanings set forth in the Lease.
This Addendum No. 2 shall supersede Addendum No. 1 for all Schedules.
The Lease is hereby amended as follows:
1. XXI. ADDITIONAL COVENANTS.
(a) At all times during the term of the Lease, Lessee
shall maintain: (i) unrestricted cash, cash equivalents and investment
grade securities (assuming such investment securities are highly
liquid) of at least $15,000,000, (ii) a tangible net worth of no less
than $60,000,000; and (iii) a total liabilities to tangible net worth
ratio of no more than 1.25:1. or within fifteen (15) days after Lessee
ceases to satisfy any such requirements, Lessee shall cause to be
delivered to Lessor an irrevocable standby letter of credit as
described in Section XXI(c) below. Unrestricted cash, cash equivalents
and investment grade securities shall be defined as being net of any
non-GE Capital contingent liabilities associated with other lease or
loan cash triggers, pledge agreements, etc. Except as defined herein,
accounting terms used herein shall be as defined, and all calculations
hereunder shall be made, in accordance with GAAP.
(b) Lessee's chief financial officer shall notify Lessor
of the amount of Lessee's unrestricted cash, cash equivalents,
investment securities, tangible net worth and total liabilities to
tangible net worth ratio, and shall certify that such amounts are in
compliance with the requirements of Section XXI(a) above, such
notification and certification shall be provided within fifteen (15)
days after the end of each quarter, reflecting such information as of
the end of the quarter immediately preceding such notice, unless
Lessee's unrestricted cash, cash equivalents and investment grade
securities fall below $30,000,000.00 at which point reporting becomes
monthly. If Lessee fails timely to provide such notification and
compliance certificates, within fifteen (15) days after such failure,
Lessee shall cause to be delivered to Lessor an irrevocable standby
letter of credit as described in Section XXI(c) below. A failure by
Lessee to provide such Letter of Credit or otherwise comply with this
Section XXI shall be a default hereunder.
(c) The irrevocable standby letter of credit provided
pursuant to this addendum shall be (i) in the amount of the then
Stipulated Loss Value of all of the Schedules, (ii) issued by a bank
which is acceptable to Lessor in its sole discretion, (iii) in the
form attached as Exhibit A or as may be acceptable to Lessor in its
sole discretion, and (iv) for an initial term of one (1) year with
automatic annual renewals thereafter (without amendment except for
extension of the then current expiration date by an additional year)
until Lessee has received written notice from Lessor to the effect
that the Letter of credit is being released in its entirety. Lessee
shall also execute a Letter of Credit Agreement in the form attached
as Exhibit B.
2. SECTION XXI. All Schedules under this Lease shall be for a
minimum of $150,000.00.
Except as expressly modified hereby, ail terms and provisions of the Lease
shall remain in full force and effect. This Addendum is not binding nor
effective with respect to the Lease or the Equipment until executed on behalf
of Lessor and Lessee by authorized representatives of Lessor and Lessee.
IN WITNESS WHEREOF, Lessee and Lessor have caused this Addendum to be executed
by their duly authorized representatives as of the date first above written.
LESSOR: LESSEE:
GENERAL ELECTRIC CAPITAL CORPORATION NEXSTAR PHARMACEUTICALS, INC.
By: /s/ XXXXXX X. XXXX By: /s/ XXXXXXX X. XXXX
-------------------------------- ------------------------------
Name: Xxxxxx X. Xxxx Name: Xxxxxxx X. Xxxx
------------------------------- ----------------------------
Title: Senior Credit Analyst Title: VP and CFO
------------------------------ ---------------------------
Attest:
By: /s/ XXXXX XXXXXX
------------------------------
9
ADDENDUM NO. 3
TO MASTER LEASE AGREEMENT
DATED AS OF SEPTEMBER 9,1996
THIS ADDENDUM (this "ADDENDUM") amends and supplements the above referenced
lease (the "LEASE"), between GENERAL ELECTRIC CAPITAL CORPORATION ("LESSOR")
and NEXSTAR PHARMACEUTICALS, INC. ("LESSEE") and is hereby incorporated into
the Lease as though fully set forth therein. Capitalized terms not otherwise
defined herein shall have the meanings set forth in the Lease.
The Lease is hereby amended as follows:
The State of Incorporation is changed from Colorado to Delaware.
Except as expressly modified hereby, all terms and provisions of the Lease shall
remain in full force and effect. This Addendum is not binding nor effective
with respect to the Lease or the Equipment until executed on behalf of Lessor
and Lessee by authorized representatives of Lessor and Lessee.
IN WITNESS WHEREOF, Lessee and Lessor have caused this Addendum to be executed
by their duly authorized representatives as of the date first above written.
LESSOR: LESSEE:
GENERAL ELECTRIC CAPITAL CORPORATION NEXSTAR PHARMACEUTICALS, INC.
By: /s/ XXXXXXX X. XXXXXXXX By: /s/ XXXXXXX X. XXXX
------------------------------------ ------------------------------
Name: Xxxxxxx X. Xxxxxxxx Name: Xxxxxxx X. Xxxx
----------------------------------- ----------------------------
Title: Specialist-Account Administration Title: VP and CFO
---------------------------------- ---------------------------
Attest:
By: /s/ XXXXX XXXXXX
------------------------------
