***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
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 Xxxxxxxxx Xxxxx
Xxxxxxx Xxxx, Xxxxxxxxxx 00000-0000
The lessor pursuant to this Master Lease Agreement ("Agreement") dated as of
March 28, 1997, as amended on November 12, 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.
1. LEASE. Subject to and upon all of the terms and conditions of this
Agreement and each Schedule, Xxxxxx hereby agrees to lease to Xxxxxx and Xxxxxx
hereby agrees to lease from Lessor the Equipment for the Term (as defined in
Paragraph 2 below) thereof. The timing and financial scope of Xxxxxx's
obligation to enter into Leases hereunder are limited as set forth in the
Commitment Letters executed by Xxxxxx and Xxxxxx, dated as of March 20, 1997 and
November 5, 1997 and attached hereto as Exhibits A and B and any Commitment
Letters hereafter executed by Xxxxxx and Xxxxxx and attached hereto as Exhibits
(the "Commitment Letters").
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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, 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. Xxxxxx'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 Xxxxxx's 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 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. 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.
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. 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.
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7. 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.
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 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 Xxxxxx.
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 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
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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 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.
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
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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 for, receive payment of, and execute and endorse
all documents, checks or drafts issued with respect to any Casualty Loss under
any insurance policy relating to the Equipment.
16. TAXES. Lessee shall pay when due, and indemnify and hold Lessor
harmless from, all sales, use, excise and other taxes, charges, and fees
(including, without limitation, income, franchise, business and occupation,
gross receipts, licensing, registration, titling, personal property, stamp and
interest equalization taxes, levies, imposts, duties, charges or withholdings of
any nature), and 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.
17. LESSOR'S PAYMENT. If Lessee fails to perform its obligations under
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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.
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. 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.
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
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.
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 Xxxxxx is given written notice of any such assignment, it
shall immediately make all payments of Xxxx 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 Xxxxxx'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
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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 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 herefrom 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.
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
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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 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 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.
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
9
and other similar communications issued by Xxxxxx and upon request of Xxxxxx.
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 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.
30. 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.
31. 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.
32. 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.
33. SPECIAL TAX INDEMNIFICATION. Lessee acknowledges that Lessor, in
determining the Rent due hereunder, has assumed that certain tax benefits as are
provided to an owner of property under the Internal Revenue Code of 1986, as
amended (the "Code"), and under applicable state tax law, including, without
limitation, depreciation deductions under Section 168(b) of the Code, and
deductions under Section 163 of the Code in an amount at least equal to the
amount of interest paid or accrued by Lessor with respect to any indebtedness
incurred by Lessor in financing its purchase of the Equipment, are available to
Lessor as a result of the lease of the Equipment. In the event Lessor is unable
to obtain such tax benefits as a result of an act or omission of Lessee 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.
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.
10
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 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.
11
IN WITNESS WHEREOF, the parties hereto have executed or caused this
Agreement to be duly executed by their duly authorized officers as of this 30th
day of November, 1997.
SUGEN, INC.
By: /s/ Xxxxxxx Xxxxx-Xxxxx
------------------------------
Name: Xxxxxxx Xxxxx-Xxxxx
Title: Chairman and Chief Executive
Officer
Federal Identification Number
00-0000000
TRANSAMERICA BUSINESS CREDIT CORPORATION
By: /s/ Xxxx X. Xxxx
------------------------------
Name: Xxxx X. Xxxx
Title: Vice President
Form 1-11-11-97
12
EXHIBIT A
March 20, 1997
Ms. Xxxxxxxxx Xxxx-Xxxxx
Vice President Finance
Sugen, Inc.
000 Xxxxxxxxx Xxxxx
Xxxxxxx Xxxx, Xxxxxxxxxx 00000-0000
Dear Xxxxxxxxx:
Transamerica Business Credit Corporation - Technology Finance Division
("Lessor") is pleased to offer to lease the Equipment described below to Sugen,
Inc. ("Lessee"). This Commitment supersedes all prior correspondence, proposals,
and oral or other communications relating to leasing arrangements between Xxxxxx
and Lessor. The outline of this offer is as follows:
Lessee: Sugen, Inc.
Lessor: Transamerica Business Credit Corporation -
Technology Finance Division and/or its
affiliates, successors and assigns.
Guarantors: None.
Equipment: A. Laboratory, Computer and Office
Equipment and software as will be
further described in the lease
documentation. All equipment subject
to approval of Lessor prior to
funding which approval will not be
unreasonable withheld.
B. Tenant Improvements as will be
further described in the lease
documentation.
C. The Equipment and Tenant Improvements
shall include sale leaseback items
purchased after December 1, 1996.
Equipment Cost: Not to exceed $3,500,000 (Tenant
Improvements limited to $[...***...] and
Software limited to $[...***...]).
Equipment Location: Redwood City, California or other locations
acceptable to Lessor, which acceptance shall
not be unreasonably withheld.
Anticipated Delivery: December 1, 1996 through June 30, 1998.
----------------------------------
* Confidential Treatment Requested
Termination of Commitment: This commitment will terminate if the first
delivery of Equipment is not completed and
funded on or before May 31, 1997. The final
delivery of Equipment shall not be later
than June 30, 1998.
Lease Term
Commencement: Upon delivery acceptance and funding of the
Equipment or upon each completion of
deliveries of items of Equipment with
aggregate cost of not less than
$[...***...], but in no event, shall any
Equipment be delivered later than June 30,
1998.
Term:
(Equipment and Software) From each Lease Term Commencement until 49
months from the first day of the month next
following or on the same date as the Lease
Term Commencement if that date is the first
date of the month.
Term:
(Tenant Improvements) From each Lease Term Commencement until 37
months from the first day of the month next
following or on the same date as the Lease
Term Commencement if that date is the first
date of the month.
Lease Repayment Terms:
(Equipment and Software) Monthly Rent for months 1 through 48 equal
to [...***...] of Equipment Cost payable
monthly in advance, plus applicable sales
and other taxes. Monthly Rent for month 49
equal to [...***...] of Equipment Cost. The
first and 48th month's rent shall be payable
in advance. Lessee may elect Automatic
Renewal provision of the lease in lieu of
making the 49th monthly rent payment as
described above upon giving 60 days prior
written notice to Lessor. As of the date of
each Lease Term Commencement, the Monthly
Rent Payments shall be fixed for the term.
Lease Repayment Terms:
(Tenant Improvements) Monthly Rent for months 1 through 36 equal
to [...***...] of Tenant Improvements Cost
and Equipment Cost payable monthly in
advance, plus applicable sales and other
taxes. Monthly Rent for month 37 equal to
[...***...] of Equipment Cost. The first and
36th month's rent shall be payable in
advance. Lessee may elect Automatic Renewal
provision of the lease in lieu of making the
37th month's rent payment as described above
upon giving 60 days prior written notice to
Lessor. As of the date of each Lease Term
Commencement, the Monthly Rent Payments
shall be fixed for the term.
The Lessor reserves the right to increase
the Monthly Rent Payments as of the date of
each Lease Term Commencement commensurate to
the [...***...] of the interest rates of
[...***...] (in the case of Equipment) and
[...***...] (in the case of Tenant
Improvements Cost) from the week ending
March 5, 1997 ([...***...] and [...***...],
respectively) to the week preceding the date
of each Lease Term Commencement, as
published in
----------------------------------
* Confidential Treatment Requested
2
the Wall Street Journal.
Interim Rent Payments: In the event that the Lease Term
Commencement is not on the first day of the
month, Interim Rent Payments shall accrue
from each Lease Term Commencement until the
next following first day of a month and
shall be payable at the end of that month.
Interim Rent Payments shall be calculated at
the daily equivalent of the currently
adjusted Monthly Payment. Lessee will not be
charged Interim Rent on any Schedule that
has a Commencement Date that starts on or
after the last 3 business days of a month.
Purchase Option:
(Equipment and Software) Lessee shall have the option to purchase all
(but not less than all) the Equipment or any
schedule at the expiration of the term of
the Lease for $[...***...], plus applicable
sales and other taxes.
Automatic Renewal:
(Equipment and Software) In the event Lessee does not elect to make
the 49th monthly rent as described in the
Lease Repayment Terms above, the lease shall
automatically renew for a term of twelve
months. The Monthly Rental will equal
[...***...] of the origiNal Equipment Cost
payable monthly in advance plus [...***...]
equal to [...***...] of the Equipment Cost
after which time the Lessee may purchase the
Equipment for $[...***...] plus sales and
other applicable taxes due at the end of the
Renewal Term.
Purchase Option or
Automatic Renewal:
(Tenant Improvements) Lessee shall have the option to purchase all
(but not less than all) of the Tenant
Improvements at the end of the lease term
for $[...***...] plus applicable sales and
other taxes. If the Lessee renews its
existing Real Estate Lease for a period that
exceeds the Tenant Improvements Lease Term,
then Lessee may automatically renew the
lease in lieu of making the 37th monthly
rent payment as described in the Lease
Repayment Terms above, the lease shall
automatically renew for a term of twelve
months with Monthly Rental equal to
[...***...] of the original Tenant
Improvement costs payable monthly in
advance, after which time the Lessee may
purchase all but not less than all of the
Tenant Improvements for $[...***...] plus
sales and other applicable taxes due at the
end of the Renewal Term.
Documentation: The documentation relating to this
transaction shall implement the transaction
contemplated by this commitment letter to
the satisfaction of Lessor and its counsel,
shall be fully acceptable to Lessor and
Lessee and their counsel, and shall contain
conditions precedent, representations,
warranties and covenants by Xxxxxx and shall
provide for events of defaults and remedies,
all as reasonably required by Lessor for
transactions of this type. The documentation
shall include, but not be limited to, the
terms and conditions described in this
commitment letter.
----------------------------------
* Confidential Treatment Requested
3
Insurance: Prior to any delivery of Equipment, the
Lessee shall furnish a certificate of
insurance acceptable to the Lessor in
amount, type, and term covering the
Equipment including primary, all risk,
physical damage, property damage and bodily
injury with appropriate loss payee and
additional insured endorsements in favor of
the Lessor.
Taxes: Sales or use taxes would be added to the
Equipment Cost or collected on the gross
rentals, as appropriate.
Representations and
Additional Covenants: There shall be no actual or threatened
conflict with, or violation of, any
regulatory statute, standard or rule
relating to the Lessee its present or future
operations, or the Collateral.
All information supplied by the Lessee shall
be materially correct and shall not omit any
statement necessary to make the information
supplied not be misleading. There shall be
no material breach of the representations
and warranties of the Lessee in the Lease.
The representations shall include that the
Equipment Cost of each item of the Equipment
does not exceed the fair and usual price for
such type of Equipment purchase in like
quantity purchased of such item and reflects
all discounts, rebates and allowances for
the Equipment given to Lessee by the
manufacturer, supplier or any other person
including, without limitation, discounts for
advertising, prompt payment, testing or
other services.
Conditions Precedent to
Each Lease Term
Commencement: 1. No material adverse change in the financial
condition, operation prospects of the Lessee
prior to funding. The Lessor reserves its
right to rescind any unused portion of its
commitment in the event of a material
adverse change in the financial or business
standing of the Lessee.
2. Completion of the documentation and final
terms of the proposed financing satisfactory
to Xxxxxx and Xxxxxx's counsel, and Xxxxxx
and Xxxxxx's counsel.
3. Results of all due diligence, including
lien, judgment and tax searches and other
matters Lessor may request shall be
satisfactory to Lessor and Xxxxxx's counsel.
4. Receipt by Xxxxxx of duly executed Lease
documentation in form and substance
satisfactory to Lessor and its counsel.
5. Lessor shall receive title and a valid and
perfected first priority lien and security
interest in the Equipment and all other
Equipment acquired through the use of this
Commitment and Lessor shall have received
satisfactory evidence that there are no
liens on any Equipment except as expressly
permitted herein.
Tenant Improvements
Termination Provision: If the Lessee elects to vacate its present
operating facility (which is defined as any
facility in which Lessor's Tenant
Improvements
4
reside),then the Lessor will release its
ownership position in all of its Tenant
Improvements. In return the Lessee will
provide compensation to the Lessor for the
release of Tenant Improvements in the form
of an increase to the monthly rental factor
on the remaining rental of Tenant
Improvements which can not be removed and
used by [...***...] (or from [...***...] of
Tenant Improvements Cost monthly). The
release will be subject to the Lessee being
in substantial compliance with all other
terms and conditions of the lease.
Fees and Expenses: The Lessee shall be responsible for the
Lessor's reasonable expenses not to exceed
$[...***...] without Lessee's written
consent (including legal expenses) in
connection with the transaction.
Law: This letter and the proposed Lease are
intended to be governed by and construed in
accordance with Illinois law without regard
to its conflict of law provisions.
Indemnity: Xxxxxx agrees to indemnify and to hold
harmless Lessor, and its officers, directors
and employees against all claims, damages,
liabilities and expenses which may be
incurred by or asserted against any such
person in connection without arising out of
this letter and the transactions
contemplated hereby, other than claims,
damages, liability, and expense resulting
from such person's gross negligence or
willful misconduct.
Confidentiality: This letter is delivered to you with the
understanding that neither it nor its
substance shall be disclosed publicly or
privately to any third person except those
who are in a confidential relationship to
you (such as your legal counsel and
accountants), or where the same is required
by law and then only on the basis that it
not be further disclosed, which conditions
the Lessee and its agents agree to be bound
by upon acceptance of this letter.
Without limiting the generality of the
foregoing, none of such persons shall use or
refer to Lessor or to any affiliate name in
any disclosures made in connection with any
of the transactions without Lessor's prior
written consent.
Conditions of Acceptance: This Commitment Letter is intended to be a
summary of the most important elements of
the agreement to enter into a leasing
transaction with Lessee, and it is subject
to all requirements and conditions contained
in Lease documentation proposed by Lessor or
its counsel in the course of closing the
lease described herein. Not every provision
that imposes duties, obligations, burdens,
or limitations on Lessee is contained
herein, but shall be contained in the final
Lease documentation satisfactory to Lessor
and its counsel.
EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY WAIVES ALL RIGHT TO
TRIAL BY JURY IN ANY SUIT, ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR
RELATED TO THIS LETTER OR THE TRANSACTION DESCRIBED IN THIS LETTER.
----------------------------------
* Confidential Treatment Requested
5
Commitment Fee: A Commitment Fee equal to [...***...] of the
total Equipment Cost and Tenant Improvements
$([...***...]) shall be due the Lessor upon
acceptance of this Commitment. The
$[...***...] application Fee previously paid
by Lessee to Lessor shall be applied to the
Commitment Fee. The Commitment Fee shall
then be applied to the cost and expenses
incurred by Lessor (not to exceed
$[...***...]) in connection with the
transaction, and the remainder shall be
applied to the second month's rent due under
the Lease or subsequent months until fully
utilized. Upon request by Lessee the
Commitment Fee shall be refunded to Lessee
if the Lease Agreement is not executed by
March 31, 1997.
Commitment Expiration: This Commitment shall expire on March 25,
1997, unless prior thereto either extended
in writing by the Lessor or accepted as
provided below by the Lessee.
Should you have any questions, please call me. If you wish to accept this
Commitment, please so indicate by signing and returning the enclosed duplicate
copy of this letter to me by March 25, 1997.
Yours truly,
TRANSAMERICA BUSINESS CREDIT
CORPORATION-TECHNOLOGY
FINANCE DIVISION
By /s/ Xxxxxx X. Xxxxxxx
-------------------------
Xxxxxx X. Xxxxxxx
Senior Vice President -
Marketing
Accepted this 25th day of March, 1997
SUGEN, INC.
By: /s/ Xxxxxxxxx Xxxx-Xxxxx
---------------------------
Typed or Printed Name
Title: Vice President, Finance
---------------------------
----------------------------------
* Confidential Treatment Requested
s
EXHIBIT B
November 5, 1997
Revised
Ms. Xxxxxxxxx Xxxx-Xxxxx
Vice President, Finance
Sugen, Inc.
000 Xxxxxxxxx Xxxxx
Xxxxxxx Xxxx, XX 00000-0000
Dear Xxxxx:
Transamerica Business Credit Corporation - Technology Finance Division
("Lessor") is pleased to offer this commitment (this "Commitment") to lease the
equipment described below to Sugen, Inc. ("Lessee"). Except with respect to the
transactions consummated (or to be consummated) under a commitment letter dated
as of March 20, 1997 and the Master Lease Agreement dated as of March 28, 1997,
this Commitment supersedes all prior correspondence, commitments, and oral or
other communications relating to leasing arrangements between Lessor and Xxxxxx.
The outline of this offer is as follows:
Lessee: Sugen, Inc.
Lessor: Transamerica Business Credit Corporation -
Technology Finance Division
Equipment: A. Laboratory, computer and office
equipment and software, including
without limitation, all additions,
improvements, replacements, repairs,
appurtenances, substitutions and
attachments thereto and all proceeds
thereof. All Equipment subject to
approval of Lessor prior to funding
which approval will not be
unreasonable withheld.
B. Tenant Improvements as will be
further described in the lease
documentation.
Equipment Cost: Not to exceed $5,000,000 (Tenant
Improvements limited to $[...***...] and and
Software limited to $[...***...]).
Equipment Location: California (or other location acceptable to
Lessor).
Anticipated Delivery: September 1, 1997 to December 31, 1998
Lease Term
Commencement: Upon delivery, acceptance and funding of the
Equipment or upon each completion of
deliveries of items of Equipment with
aggregate cost of not less than
$[...***...], but no later than December 31,
1998.
----------------------------------
* Confidential Treatment Requested
Term: From each Lease Term Commencement until 49
months from the first day of the month next
following or coincident with that Lease Term
Commencement.
Monthly Rent
(Equipment and Software
Only): Monthly Rent for the first 48 rental
payments will be equal to [...***...] of
Equipment Cost (Equipment and Software)
payable monthly in advance and one final
rental payment equal to [...***...] of
Equipment Cost (Equipment and Software) will
be payable in advance at month 49. The first
and 48th months' rent will be due on or
before each Lease Term Commencement. The
Lessee may at its option elect to accept the
automatic renewal described in this
Commitment in lieu of making the 49th rental
payment as described above.
Monthly Rent
(Tenant Improvements
Only): Monthly Rent for the first 48 rental
payments will be equal to [...***...] of
Equipment Cost (Tenant Improvements) payable
monthly in advance and one final payment
equal to [...***...] of Equipment Cost
(Tenant Improvements) will be payable in
advance at month 49. The first and 48th
months' rent will be due on or before each
Lease Term Commencement. The Lessee may at
its option elect to accept the automatic
renewal described in this Commitment in lieu
of making the 49th rental payment as
described above.
Adjustment to
Rental Payments: The Lessor reserves the right to increase
the Monthly Rent Payments as of the date of
each Lease Term Commencement proportionally
to the change in the [...***...] of the
interest rates of [...***...] to the week
preceding the date of each Lease Term
Commencement, as published in the Wall
Street Journal. As of the date of each Lease
Term Commencement, the Monthly Rent Payments
will be fixed for the term. A schedule of
the actual Monthly Rent Payments will be
provided by the Lessor following each Lease
Term Commencement.
Interim Rent: Interim Rent will accrue from each Lease
Term Commencement until the next following
first day of a month (unless the Lease Term
Commencement is on or within three business
days prior to the first day of a month).
Interim Rent will be at the daily equivalent
of the currently adjusted Monthly Rent
Payment.
Net Lease: The lease will be a net lease under which
the Lessee will be responsible for
maintenance, insurance, taxes, and all other
costs and expenses.
Taxes: Sales or use taxes shall be added to the
gross rentals, as appropriate.
Insurance: Prior to any delivery of Equipment, the
Lessee will furnish confirmation of
insurance acceptable to the Lessor covering
the Equipment including
----------------------------------
* Confidential Treatment Requested
2
primary, all risk, physical damage, property
damage and bodily injury with appropriate
loss payee endorsement in favor of the
Lessor.
Conditions Precedent to
Each Lease Term
Commencement: 1. No material adverse change in the
financial condition, operation or prospects
of the Lessee prior to funding. The Lessor
reserves the right to rescind any unused
portion of this Commitment in the event of a
material adverse change in the financial
condition, operation or prospects of the
Lessee.
2. Completion of the documentation and final
terms of the proposed financing satisfactory
to Xxxxxx and Xxxxxx's counsel.
3. Results of all due diligence, including
lien, judgment and tax searches and other
matters Lessor may reasonably request shall
be satisfactory to Lessor and Xxxxxx's
counsel.
4. Receipt by Xxxxxx of duly executed Lease
documentation in form and substance
satisfactory to Lessor and its counsel.
5. Lessor shall receive title and a valid
and perfected first priority lien and
security interest in all Equipment acquired
through the use of this Commitment and
Lessor shall have received satisfactory
evidence that there are no liens on any
Equipment except as expressly permitted
herein.
Purchase Option
(Equipment and Software
Only): The Lessee will have the option to purchase
all (but not less than all) the Equipment at
the expiration of the term of the Leases for
$[...***...] plus applicable sales and other
taxes. In the event the Lessee does not
elect to make the 49th payment as described
in the Monthly Rent (Equipment and Software)
paragraph of this Commitment, each Lease
will automatically renew for a term of one
year with monthly rentals equal to
[...***...] of Equipment Cost (Equipment and
Software) payable monthly in advance plus
one additional payment equal to [...***...]
of the Equipment Cost (Equipment and
Software).
Purchase Option
(Tenant Improvements
Only): The Lessee will have the option to purchase
all (but not less than all) of the Tenant
Improvements at the expiration of the term,
or, if applicable, the renewal term, of the
Leases for $[...***...] plus applicable
sales and other taxes. If the term of the
Lessee's existing real estate lease exceeds
the the term of Leases for Tenant
Improvements by at least one year, then the
Lessee may elect not to make the 49th
payment as described in the Monthly Rent
(Tenant Improvements) paragraph of this
Commitment, in which case each Lease for
Tenant Improvements will automatically renew
for a period of 12 months with monthly
rentals equal to [...***...] of Equipment
Cost (Tenant Improvements).
Additional Covenants: There will be no actual or threatened
conflict with, or violation of, any
----------------------------------
* Confidential Treatment Requested
3
regulatory statute, standard or rule
relating to the Lessee, its present or
future operations, or the Equipment.
Lessee will continue to provide copies of
its quarterly filings to the Securities
Exchange Commission. All information
supplied by the Lessee will be materially
correct and will not omit any statement
necessary to make the information supplied
not be misleading. There will be no material
breach of the representations and warranties
of the Lessee in the lease. The
representations will include that the
Equipment Cost of each item of the Equipment
does not exceed the fair and usual price for
like quantity purchased of such item and
reflects all discounts, rebates and
allowances for the Equipment given to Lessee
or any affiliate of Lessee by the
manufacturer, supplier or anyone else
including, without limitation, discounts for
advertising, prompt payment, testing or
other services.
Fees and Expenses: The Lessee will be responsible for the
Lessor's reasonable expenses in connection
with the transaction. Lessor's expenses will
be capped at $[...***...].
Law: This letter and the proposed Lease are
intended to be governed by and construed in
accordance with Illinois law without regard
to its conflict of law provisions.
Indemnity: Xxxxxx agrees to indemnify and to hold
harmless Lessor, and its officers, directors
and employees against all claims, damages,
liabilities and expenses which may be
incurred by or asserted against any such
person in connection with or arising out of
this letter and the transactions
contemplated hereby, other than claims,
damages, liability, and expense resulting
from such person's gross negligence or
willful misconduct.
Conditions of
Acceptance: This Commitment Letter is intended to be a
summary of the most important elements of
the agreement to enter into a leasing
transaction with Lessee, and it is subject
to all requirements and conditions contained
in Lease documentation proposed by Lessor or
its counsel in the course of closing the
Lease described herein. Not every provision
that imposes duties, obligations, burdens,
or limitations on Lessee is contained
herein, but shall be contained in the final
Lease documentation satisfactory to Lessor
and its counsel.
EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY WAIVES ALL RIGHT TO
TRIAL BY JURY IN ANY SUIT, ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR
RELATED TO THIS LETTER OR THE TRANSACTION DESCRIBED IN THIS LETTER.
Application Fee: The $[...***...] Application Fee previously
paid by the Lessee shall be first applied to
the costs and expenses of the Lessor in
connection with
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* Confidential Treatment Requested
4
the transaction (not to exceed
$[...***...]), and any remainder shall be
applied to the second month's rent due under
the Lease or subsequent months until fully
utilized.
Commitment
Expiration: This Commitment shall expire on November 10,
1997, unless prior thereto either extended
in writing by the Lessor or accepted as
provided below by the Lessee.
Should you have any questions, please call me. If you wish to accept this
Commitment, please so indicate by signing and returning the enclosed duplicate
copy of this letter to me by November 10, 1997.
Yours truly,
TRANSAMERICA BUSINESS CREDIT
CORPORATION-TECHNOLOGY
FINANCE DIVISION
By /s/ Xxxxxx X. Xxxxxxx
-------------------------
Xxxxxx X. Xxxxxxx
Senior Vice President -
Marketing
Accepted this 5th day of March, 1997
SUGEN, INC.
By: /s/ Xxxxxxxxx Xxxx-Xxxxx
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* Confidential Treatment Requested
5
