EXHIBIT 10.46
MASTER LEASE AGREEMENT
Master Lease Agreement effective as of July 12, 2001, by and between
Southwest Michigan Innovation Center, Inc., a Michigan nonprofit corporation
("Lessor") and Esperion Therapeutics, Inc., a Delaware corporation ("Lessee").
In consideration of the mutual agreements set forth in this Master Lease,
the payment of rent and other amounts as provided in this Master Lease, and any
equipment scheduled to be delivered pursuant to this Master Lease, the parties
agree as follows:
1. Agreement to Lease. Lessor rents and leases to Lessee, and Lessee rents
and leases from Lessor, all of the tangible personal property listed on each
Equipment Schedule executed from time to time pursuant to this Master Lease
(with respect to any Equipment Schedule called the "Equipment"). The term
"Equipment" shall include all replacement parts, accessories or alterations
incorporated into or made to such tangible personal property. Each Equipment
Schedule shall be substantially in the form attached to this Master Lease as
Exhibit A (an "Equipment Schedule"), shall incorporate in it all the terms and
conditions of this Master Lease and shall contain such additional terms and
conditions as Lessor and Lessee shall agree upon.
Notwithstanding any other provision, Lessor and Lessee jointly issued a
purchase order for a NMR Spectrometer on or after the effective date of this
Master Lease and Lessor paid to Lessee the sum of Two Hundred Sixty Eight
Thousand Two Hundred Dollars and No/100 ($268,200) with the Lessee of such
equipment on July 12, 2001, and paid an additional One Hundred Fourteen Thousand
One Hundred and no/100 ($114,100.00) to the Lessee on October 2, 2001. Lessor
intends to make an additional payment of Sixty Four Thousand Seven Hundred and
no/100 ($64,700.00) to Lessee. Lessor and Lessee acknowledge and agree that the
NMR Spectrometer shall be leased to Lessee pursuant to this Master Lease, as
evidenced by the attached Equipment Schedule and that the purchase price for the
NMR Spectrometer, including installation costs, shall be added to the Principal
Balance, as defined below, and recorded in the Payback Schedule, as defined
below. Lessee shall be entitled to payment of an additional Fifty-Three Thousand
and No/100 ($53,000.00) for reimbursement of the purchase of computer and lab
equipment to be used at the Southwest Michigan Innovation Center ("SMIC")
located at the Western Michigan University Business and Technology Park;
subject, however, to Esperion first entering into a sublease agreement for space
at SMIC and taking possession of those leased premises.
2. Term. The term of this Master Lease shall begin on July 12, 2001 (the
"Commencement Date") and end seventy-two (72) months from the date of the last
drawdown under this Master Lease (the "Term"). This Master Lease cannot be
cancelled or terminated except as expressly permitted in this Master Lease. Upon
expiration of the Master Lease, Lessee shall purchase the Equipment for the
unamortized Principal Balance remaining under the Payback Schedule based upon
the payment terms described in Section 3
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of this Master Lease.
3. Rent and Payment; Net Lease. All sums paid by Lessor in connection with
the acquisition and installation of Equipment pursuant to this Master Lease
shall be recorded on the Payback Schedule. The parties agree that the Principal
Balance is defined as the amount reimbursed or paid to Lessee by Lessor for the
purchase of Equipment less any principal payments made under the applicable
Payback Schedule. Lessee shall pay to Lessor as rent the outstanding Principal
Balance plus interest according to the following terms beginning on the
Commencement Date:
Months Payment Amount
1 - 12 No payment; interest will accrue on the outstanding
Principal Balance at four percent (4%) per annum.
13 - 36 Monthly interest only payments equal to four percent
(4%) per annum of the outstanding Principal Balance,
plus one twenty-fourth (1/24th)of the interest accrued
during months 1 - 12.
37 - 72 Monthly principal and interest payments calculated using
a ten (10) year amortization at four percent (4%) per
annum of the outstanding Principal Balance. The
outstanding Principal Balance shall be paid in full at
the expiration of the Term.
Rental Payments shall be monthly and shall be due and payable in advance on
the first day of each calendar month (each such date being called a "Monthly
Rent Payment Date"). Rent shall be paid to Lessor by check or wire transfer so
as to constitute immediately available funds at the address of Lessor set forth
above or at such other place as Lessor shall designate in writing or if to an
Assignee (as defined in Section 14 below) of Lessor, at such place as such
Assignee shall designate in writing. All amounts shall be paid free and clear of
all claims, demands or set offs against Lessor or such Assignee. Lessor shall
not be required to invoice Lessee for each payment, however, Lessor shall
provide an amortization schedule, which will be incorporated into Exhibit B and
shall state due dates and amounts (the "Payback Schedule")
Time is of the essence of this Master Lease. Lessee agrees to pay interest
on any late payment for the period beginning fifteen (15) days after the date
such late payment was due through the date such late payment is made at the
lesser of ten percent (10%) per annum or the maximum rate allowed by law.
The Master Lease shall be non-cancelable for its entire term and Lessee
shall have the right of prepayment, without penalty for the unpaid Principal
Balance.
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LESSOR AND LESSEE ACKNOWLEDGE AND AGREE THAT LESSEE'S OBLIGATION TO PAY ALL
RENTAL AND ANY OTHER AMOUNTS PAYABLE BY LESSEE UNDER THIS MASTER LEASE, AS
EVIDENCED BY EXHIBIT B, SHALL BE ABSOLUTE AND UNCONDITIONAL AND, EXCEPT IF THE
EQUIPMENT HAS BEEN DAMAGED TO THE EXTENT NOT REASONABLY OPERABLE BY LESSEE OR
DESTROYED AS A RESULT OF THE USE OF THE EQUIPMENT BY WESTERN MICHIGAN UNIVERSITY
FACULTY OR STUDENTS, SHALL NOT BE SUBJECT TO ANY ABATEMENT, REDUCTIONS, SET OFF,
DEFENSE, COUNTERCLAIM, INTERRUPTION, DEFERMENT OR RECOUPMENT FOR ANY REASON
WHATSOEVER, AND THAT SUCH PAYMENT SHALL BE AND CONTINUE TO BE PAYABLE IN ALL
EVENTS.
4. Taxes and Fees. Lessee covenants and agrees to pay when due or reimburse
and indemnify and hold Lessor harmless from and against all taxes, fees or other
charges of any nature whatsoever (together with any related interest or
penalties not arising from negligence on the part of Lessor) now or subsequently
imposed or assessed ("Taxes") against Lessor, Lessee or the Equipment of any
Federal, state, county, or local governmental authority upon or with respect to
the Equipment or upon the ordering, purchase, sale, ownership, delivery,
leasing, possession, use, operation, return or other disposition, or upon the
rents, receipts, or earnings arising from the Equipment upon or with respect to
any Equipment Schedule, if any. If Lessee is required by law or administrative
practice to make any report or return with respect to such Taxes, Lessee shall
promptly notify Lessor in writing and shall cooperate with Lessor to confirm
that such reports are properly filed and accurately reflect Lessor's interest in
the Equipment.
5. Insurance. Lessee shall obtain and maintain for the Term of the Master
Lease, at its own expense, property damage and general liability insurance,
including without limitation, loss by fire (including so-called extended
coverage), theft, collision, and such other risks of loss as are customarily
insured against the type of equipment leased under the Master Lease and by the
businesses in which Lessee is engaged, in such amounts and in such form, which
are reasonable with respect to the risk covered. All such insurance policies
shall protect Lessor and Lessee as named insureds, and shall provide that all
losses shall be payable to Lessor, adjusted solely with Lessor. On Lessor's
request, Lessee shall provide evidence of such insurance to Lessor within five
(5) days of such request. Notwithstanding anything to the contrary herein, the
parties agree that if the Equipment is damaged to the extent not reasonably
operable by Lessee or destroyed as a result of the use of the Equipment by
Western Michigan University faculty or students, then Lessor will be responsible
for replacing or repairing the damaged or destroyed Equipment to the extent such
repair or replacement costs are not covered by insurance.
6. Location and Maintenance. Lessee shall use, operate and keep the
Equipment at XxXxxxxxx Xxxx, Haenicke Hall, or the Southwest Michigan Innovation
Center. Lessee shall, at its sole expense, at all times during the Term of the
Master Lease, maintain the Equipment in good repair, condition and appearance
and protect the Equipment
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from deterioration other than normal wear and tear. Lessee shall not use
the Equipment for any purpose other than that for which it was designed nor in
violation of any restriction on use set forth in the applicable Equipment
Schedule.
Upon reasonable notice by Lessor, which will not exceed thirty-six (36)
hours, Lessee shall at all reasonable times during business hours, make the
Equipment available to the Lessor for inspection at the place where it is
normally located and shall make Lessee's log and maintenance records pertaining
to the Equipment available to Lessor for inspection, provided that a
representative of Lessee accompanies Lessor.
7. Title; Financing Statement; Liens. Lessor and Lessee intend that this
Master Lease is an agreement of the lease. Accordingly, title to the Equipment
shall at all times remain with Lessor and nothing contained in any Equipment
Schedule shall give or convey to Lessee any right, title or interest in or to
the Equipment, except as a Lessee, as set forth in this Master Lease. Lessor has
and is relying upon its residual interest in the Equipment at the termination of
this Master Lease, whether by expiration, default or otherwise. Lessee appoints
and authorized Lessor, as its agent and attorney-in-fact, to execute and file,
on behalf of Lessee, any Uniform Commercial Code financing statements.
Lessee shall, at its expense, protect and defend Lessor's title as well as
the interest of any Assignee against all persons claiming against or through
Lessee and shall at all times keep the Equipment free and clear from any legal
process, liens, or encumbrances, whatsoever (except those placed by Lessor) and
shall give Lessor immediate written notice of any liens and shall indemnify and
hold Lessor and any Assignee harmless from and against any loss caused by such
liens.
8. Risk of Loss. Until such time as the Equipment is returned and delivered
to and accepted by Lessor pursuant to the terms of this Master Lease, Lessee
assumes and shall bear the entire risk of loss, damage, theft and destruction of
and to the Equipment or any portion of it from any cause whatsoever, commencing
with delivery of such Equipment to Lessee. No loss, damage, theft or destruction
of the Equipment for which Lessee has the risk of loss shall relieve Lessee in
any way from the obligations to pay rental or perform any other of its
obligations under this Master Lease. Notwithstanding anything to the contrary
herein, the parties agree that if the Equipment is damaged to the extent not
reasonably operable by Lessee or destroyed as a result of the use of the
Equipment by Western Michigan University faculty or students under this
Agreement, then Lessor will be responsible for replacing or repairing the
damaged or destroyed Equipment to the extent not covered by insurance. Lessee
shall promptly notify Lessor in writing of any loss, theft, damage or
destruction of the Equipment. In the event of such a loss, damage, theft or
destruction of any item of the Equipment, Lessee, at the option of Lessor,
shall:
(a) Promptly place, at Lessee's expense, the Equipment in good repair,
condition and working order in accordance with the manufacturer's
specifications and to the reasonable satisfaction
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of Lessor; or
(b) Promptly replace, at Lessee's expense, the Equipment with like
Equipment of the same or a later model and specifications, with the
additions, in good repair, condition and working order in accordance
with the manufacturer's specifications and to the reasonable
satisfaction of Lessor.
In the event Lessor elects or requires Lessee to repair or replace any such
item of Equipment pursuant to (a) or (b) above, continuation of this Master
Lease, and/or any Equipment Schedule and the continued payment of rent shall not
be affected because of such loss, damage or destruction and the resulting repair
or replacement and the insurance proceeds received by Lessor, if any, pursuant
to Section 5 above, after the use of such funds to pay any accrued and unpaid
rentals under this Master Lease, shall be paid to Lessee upon Lessee's
furnishing proof reasonably satisfactory to Lessor that such repair or
replacement has been completed in a manner reasonably satisfactory to Lessor and
fully paid for by Lessee.
9. No Lien or Modifications. Lessee shall not create or incur any mortgage,
lien, pledge or other encumbrance or attachment of any kind upon the Equipment.
Lessee shall not make any changes to the Equipment, except as permitted by
Lessor, except as required by any maintenance obligations of the Master Lease
Agreement. Lessee shall not assign or in any way dispose of all or any part of
its rights or obligations under the Master Lease Agreement.
10. Selection; Finance Lease Status. Lessee acknowledges, represents and
warrants that is has made the selection of both (a) the Equipment and (b) the
supplier(s) (individually, a "Supplier" and collectively "Suppliers") from whom
Lessor is to purchase the Equipment, based on Lessee's own judgment and
expressly disclaims any reliance upon statements made by the Lessor. Lessee
requests that Lessor order and purchase the Equipment from Suppliers and arrange
for delivery of such Equipment to Lessee. Lessee authorizes Lessor to insert in
each Equipment Schedule the serial number and other identifying data of the
Equipment.
To the extent possible, the parties agree that this Master Lease and each
Equipment Schedule are intended to qualify as a "finance lease" under Article 2A
of the Uniform Commercial Code ("UCC"). Lessee acknowledges that Lessee selected
and approved all Equipment leased under this Master Lease.
11. Disclaimer of Warranties. LESSOR IS NOT THE MANUFACTURER OR SUPPLIER OF
ANY OF THE EQUIPMENT. ACCORDINGLY, LESSOR MAKES NO REPRESENTATION, WARRANTY OR
COVENANT, EITHER EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER, INCLUDING
WITHOUT LIMITATION THE DESIGN OR CONDITION OF THE EQUIPMENT, ITS
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MERCHANTABILITY, FITNESS CAPACITY OR SUITABILITY FOR ANY PARTICULAR PURPOSE, THE
QUALITY OF THE MATERIAL OR WORKMANSHIP OF THE EQUIPMENT OR ANY CONFORMITY OF THE
EQUIPMENT TO THE PROVISIONS AND SPECIFICATIONS OF ANY PURCHASE ORDER(S) RELATING
TO THE EQUIPMENT. ALL EQUIPMENT SHALL BE ACCEPTED AND LEASED BY LESSEE "WHERE
IS", "AS IS", AND "WITH ALL FAULTS". LESSOR SHALL NOT BE RESPONSIBLE FOR ANY
PATENT OR LATENT DEFECTS IN ANY EQUIPMENT, FOR ANY INFRINGEMENT OF ANY PATENT,
TRADEMARK, OR COPYRIGHT, OR FOR DAMAGES WHETHER ACTUAL, SPECIAL, CONSEQUENTIAL
OR INCIDENTAL ARISING FROM ANY CAUSE WHATSOEVER. Lessor shall not be liable to
Lessee or any third party for consequential, incidental, special or exemplary
damages occurring out of or related to the Master Lease, or the transactions
contemplated under the Master Lease, except for Lessor's gross negligence or
willful misconduct. Lessee further understands and agrees that no employee or
agent of Lessor is authorized to waive or alter any term or condition of this
Master Lease or any Equipment Schedule, if any, including without limitation,
this Section 11.
Lessor assigns to Lessee for and during the term of this Master Lease all
of its right, title and interest in and to any warranty made by any manufacturer
or Supplier of the Equipment to the extent the same is assignable. Lessor makes
no warranties independent of those made by such manufacturer and Lessee agrees
that it will look solely to such manufacturer. Lessee agrees to resolve all such
warranty claims directly with such manufacturer or Supplier. Provided that no
Event of Default under this Lease is then existing, Lessor shall cooperate with
Lessee to resolve such warranty claims in good faith and by appropriate
proceedings at Lessee's sole cost and expense. No such warranty claim shall
affect in any manner the unconditional obligation fo Lessee to make rent and
other payments under this Master Lease.
12. Representations and Warranties of Lessee. Lessee represents, warrants
and covenants that with respect to the Master Lease and each Equipment Schedule
executed pursuant to the Master Lease:
(a) Lessee has been duly authorized by all necessary corporate action to
execute, deliver and perform this Master Lease, and will not violate
Lessee's articles of incorporation, by-laws, or require the approval
of any of its shareholders, other than those individuals executing
this Master Lease.
(b) The individual executing this Master Lease was duly authorized to
do so.
(c) The Master Lease, each Equipment Schedule and all Exhibits to this
Master Lease constitute legal, valid and binding agreements of
Lessee enforceable in accordance with their respective terms.
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(d) The Equipment is personal property and when subjected to use by the
Lessee will not be or become fixtures under applicable law.
(e) ALL EQUIPMENT IS LEASED FOR BUSINESS PURPOSES ONLY OR TO ALLOW FOR
ACCESS TO WESTERN MICHIGAN UNIVERSITY, AND NOT FOR PERSONAL, FAMILY
OR HOUSEHOLD PURPOSES.
13. Assignment by Lessee. WITHOUT LESSOR'S PRIOR WRITTEN CONSENT, LESSEE
SHALL NOT (A) ASSIGN, TRANSFER, PLEDGE OR OTHERWISE DISPOSE OF THIS MASTER
LEASE, THE EQUIPMENT OR ANY INTEREST THEREIN OR (B) SUBLET OR PERMIT THE
EQUIPMENT TO BE USED BY ANY PARTY OTHER THAN LESSEE, OR WESTERN MICHIGAN
UNIVERSITY, EXCEPT TO A SUCCESSOR TO ITS BUSINESS OR SUBSTANTIALLY ALL OF ITS
ASSETS, PROVIDED, LESSOR HAS CONSENTED TO SUCH ASSIGNMENT, WHICH SHALL NOT BE
UNREASONABLY WITHHELD.
14. Assignment by Lessor. Lessor may, without notice to Lessee, assign or
sell its interest in, grant a security interest in or otherwise transfer, in
whole or in part, this Master Lease, any or all Equipment Schedules, any or all
of the Equipment or any of its rights, interests or obligations with respect to
them, including, without limitation, all rental and other sums due or to become
due under any Schedule to one or more persons or entities (each an "Assignee").
LESSEE ACKNOWLEDGES THAT ANY SUCH ASSIGNMENT OR TRANSFER BY LESSOR SHALL NOT
MATERIALLY IMPAIR LESSEE'S PROSPECT OF OBTAINING RETURN PERFORMANCE BY LESSOR,
MATERIALLY CHANGE LESSEE'S DUTIES OR OBLIGATIONS UNDER THE APPLICABLE EQUIPMENT
SCHEDULE, NOR MATERIALLY INCREASE THE BURDENS OR RISKS IMPOSED ON LESSEE. LESSEE
FURTHER AGREES THAT ANY SUCH ASSIGNMENT OR TRANSFER SHALL BE PERMITTED EVEN IF
IT COULD BE DEEMED TO MATERIALLY EFFECT THE INTERESTS OF LESSEE. Lessee shall,
upon receipt of notice of assignment from Lessor, be bound by any such
assignment. Any Assignee shall have all of the rights and obligations of Lessor
under this Master Lease and the applicable Equipment Schedule. Upon receipt of
notice of any assignment and instructions to do so, Lessee shall pay directly to
Assignee all rental and other sums due under this Master Lease and applicable
Equipment Schedule.
15. Indemnity. Lessee shall and does indemnify and hold Lessor and any
Assignee harmless from and against any and all claims, costs, expenses, damages,
and liabilities (including without limitation reasonable attorney's fees),
arising out of the possession, operating, control, use, maintenance, delivery,
return or other disposition of the Equipment under this Master Lease.
Notwithstanding the foregoing, Lessee shall not be responsible under the terms
of this Section to a party indemnified hereunder for any claims,
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costs, expenses, damages, and liabilities occasioned by the negligence or
willful misconduct of such indemnified party. In addition, the parties agree
that if the Equipment is damaged to the extent not reasonably operable by Lessee
or destroyed as a result of the use of the Equipment by Western Michigan
University faculty or students under this Agreement, then Lessor will indemnify
Lessee for the costs associated with replacing or repairing the damaged or
destroyed Equipment that are not covered by insurance. Both Lessee and Lessor
agree to give the other party prompt notice of any claim or liability that may
give rise to any indemnification under this Section. This Section shall remain
in effect notwithstanding the expiration or termination of this Master Lease or
any Equipment Schedule insofar as it relates to an event that occurred prior to
such expiration or termination.
16. Default; Remedies. The occurrence of any one or more of the following
events (herein called "Events of Default") shall constitute a default under this
Master Lease:
(a) Default by Lessee in the payment of any installment of Monthly Rent
or other amount payable by Lessee under any Equipment Schedule or
this Master Lease as and when the same becomes due and payable and
which continued to be unpaid for a period of thirty (30) days after
notice; or
(b) Default by Lessee in the performance of any other term covenant
or condition of any Equipment Schedule or this Master Lease, or the
inaccuracy in any material respect of any representation or
warranty made by the Lessee in such Equipment Schedule or this
Master Lease or any document or certificate furnished to Lessor
in connection therewith, which default or inaccuracy shall
continue for a period of thirty (30) days after notice; or
(c) The making of an assignment by Lessee for the benefit of its
creditors or the admission by Lessee in writing of its inability to
pay its debts as they become due, or the insolvency of Lessee, or
the filing by Lessee of a voluntary petition in bankruptcy, or
the adjudication of Lessee as a bankrupt, or the filing by Lessee
of any petition or answer seeking for itself any reorganization,
arrangement, composition, readjustment, liquidation, dissolution,
or similar relief under any present or future statue, law
regulation, or the filing of any answer by the Lessee admitting, or
the failure by Lessee to deny the material allegations of a
petition filed against it for any such relief, or the seeking or
consenting by Lessee to, or acquiescence by Lessee in, the
appointment of any trustee, receiver or liquidator of Lessee or of
all or any substantial party of the properties of
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Lessee, or the inability of Lessee to pay its debts when due, or
the commission by Lessee of any act of bankruptcy as defined in the
Federal Bankruptcy Act, as amended; or
(d) The failure by Lessee within sixty (60) days after the commencement
of any proceeding against Lessee seeking any reorganization,
arrangement, composition, readjustment, liquidation, dissolution or
similar relief under any present or future statute, law or
regulation, to obtain the dismissal of such proceeding or, within
sixty (60) days after the appointment, without the consent
or acquiescence of Lessee, of any trustee, receiver or liquidator
of Lessee of all or any substantial party of the properties of
Lessee, to vacate such appointment; or
(e) Lessee creates or suffers to exist any liens, encumbrances or
security interests on the Equipment or this Master Lease; or
(f) Lessee ceases doing business as a going concern or abandons all or
any part of the Equipment; or
(g) Lessee attempts to remove, sell, transfer, part with possession or
sublease any item of Equipment.
Upon the occurrence of any one or more Events of Default, Lessor has the
right to exercise any one or more of the following remedies, without notice of
any kind: (a) declare all of the unpaid Principal Balance of the Master Lease
immediately due and payable; (b) enter upon the Premises at XxXxxxxxx Xxxx or
any place where the Equipment is located and take possession of all or any part
of the Equipment, if this can be done without a breach of the peace, and either
hold it at that location or remove it to any other place within the State of
Michigan that Lessor desires. Lessor may then sell or release all or any part of
the Equipment a public or private auction, giving notice as required by law. Any
sale or release of the Equipment must be in a commercially reasonable manner.
Lessor has the right to recover from Lessee an amount by which the sum received
upon the sale or release (during the remaining and expired term of the Master
Lease), of the Equipment is exceeded by the aggregate of (i) all sums owing to
Lessor from Lessee under the Master Lease, whether for rent or otherwise; (ii)
all costs reasonably incurred by Lessor in exercising its remedies, including
searching for, taking possession of and selling the Equipment; and (iii) all
other damages, costs and expenses, including reasonable attorney fees incurred
by Lessor as a result of Lessee's default; (c) terminate the Master Lease
without prejudice to any of Lessor's rights; or (d) exercise any other remedy
available to Lessor in law or equity.
17. Lessee's Waivers. TO THE EXTENT PERMITTED BY APPLICABLE LAW, LESSEE
HEREBY WAIVES THE FOLLOWING RIGHTS AND REMEDIES: (A) THE RIGHT TO CANCEL OR
REPUDIATE THIS A MASTER LEASE AND ANY APPLICABLE LEASE EQUIPMENT SCHEDULE; (B)
THE RIGHT TO
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REJECT OR REVOKE ACCEPTANCE OF THE EQUIPMENT; (C) THE RIGHT TO CLAIM A SECURITY
INTEREST IN THE EQUIPMENT IN LESSEE'S POSSESSION OR CONTROL FOR ANY REASON; OR
(D) THE RIGHT TO DEDUCT ALL OR ANY PART OF ANY CLAIMED DAMAGES RESULTING FROM
LESSOR'S DEFAULT, IF ANY, UNDER THIS MASTER LEASE OR ANY APPLICABLE EQUIPMENT
SCHEDULE.
18. Entire Agreement. Lessor and Lessee acknowledge that there are no
agreements or understandings, written or oral between Lessor and Lessee with
respect to the Equipment, other than as set forth in this Master Lease and in
each Equipment Schedule and that this Master Lease and Equipment Schedule
contains the entire agreement between Lessor and Lessee with respect to the
leasing of the Equipment. Neither this Master Lease nor any Equipment Schedule
may be altered, modified, terminated or discharged except by a writing signed by
the party against whom such alteration, modification, termination or discharge
is sought.
19. No Waiver. No omission, or delay, by Lessor at any time to enforce
any right or remedy reserved to it, or to require performance of any of the
terms, covenants or provisions of this Master Lease by Lessee at any time
designated, shall be a waiver of any such right or remedy to which the Lessor is
entitled, not shall it in any way affect the right of lessor to enforce such
provisions thereafter.
20. Binding Nature. This Master Lease and each Equipment Schedule shall
be binding upon, and shall inure to the benefit of Lessor, Lessee and their
respective successors, legal representatives and assigns (including any
Assignee), to the extent set forth in this Master Lease.
21. Survival of Obligations. All agreements, representatives and
warranties contained in this Master Lease, any Equipment Schedule or in any
document delivered pursuant to either or in connection with either shall survive
the execution and delivery of this Master Lease and the expiration or other
termination of this Master Lease.
22. Notice. All notices, requests, demands, and other communications
hereunder shall be in writing and shall be deemed to have been duly given,
except as otherwise provided herein, when delivered in person or by telex,
telegram, facsimile, or other standard form of written telecommunication, or
three (3) business days after being deposited in the U.S. mail, by certified
mail, return receipt requested, postage prepaid, in each case to the parties at
the following addresses:
If to Lessor: Southwest Michigan Innovation Center, Inc.
With a copy to:
Miller, Johnson, Xxxxx & Xxxxxxxxx, P.L.C.
000 X. Xxxx Xx, Xxxxx 000
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Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxx
If to Lessee: Esperion Therapeutics, Inc.
0000 Xxxxx Xxxxx Xxxxxx
000 XXX Xxxxx
Xxx Xxxxx, XX 00000
(000) 000-0000
Attention: President and CEO
With copy to General Counsel
23. Governing Law. This Master Lease shall not be effective unless and
until accepted by execution by any officer of Lessor in the State of Michigan.
This Master Lease and all Equipment Schedules shall be governed and construed
for all purposes under and in accordance with the laws of the State of Michigan.
24. Severability. In the event any one or more of the provisions of this
Master Lease and/or any Equipment Schedule shall for any reason be held invalid,
illegal or unenforceable, the remaining provisions of this Master Lease and/or
any such Equipment Schedule shall be unimpaired.
25. Counterparts. This Master Lease and any Equipment Schedule may be
executed in any number of counterparts, each of which shall be deemed an
original, but all such counterparts together shall constitute but on and the
same instrument. If Lessor grants a security interest in all or any part of any
Equipment Schedule, the Equipment covered thereby and/or sums payable
thereunder, only that counterpart Equipment Schedule marked "Secured Party's
Original" shall be effective to transfer Lessor's rights therein and all other
counterparts shall be marked "Duplicate" to indicate that they are not the
"Secured Party's Original".
Dated as of July 12, 0000 XXXXXXXXX XXXXXXXX
INNOVATION CENTER, INC.
By: /s/ Xxxxx Xxxxxx
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Its: CEO
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Dated as of July 12, 2001 ESPERION THERAPEUTICS, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------
Its: COO
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EXHIBIT A
EQUIPMENT SCHEDULE NO. 1
DATED AS OF JULY 12, 2001
LESSEE: ESPERION THERAPEUTICS LESSOR: SOUTHWEST MICHIGAN
INNOVATION CENTER, INC.
Price of NMR Equipment $268,200 July 12, 2001
$114,100 October 2, 2001
$ 64,700 To be determined
Each of the above payments will be added to the Payback Schedule according to
the date of disbursement, and will be paid according to the terms set forth in
Section 3.
Location of Equipment: XxXxxxxxx Xxxx, Western Michigan University
EQUIPMENT
Qty. Description Monthly Rental
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1 NMR Spectrometer and Probe See below
Rentals: Pursuant to Section 3 of the Master Lease, the Equipment purchase price
shall be added to the Payment Schedule set forth on Exhibit B of the Master
Lease and Lessee agrees to pay the amounts determined according to terms set
forth in Section 3.
Term: Pursuant to Section 2 of the Master Lease, Lessor and Lessee agree that
this Equipment Schedule is effective from the Commencement Date of the Master
Lease and shall remain in force for the Term of the Master Lease. Upon
expiration of the Master Lease, the outstanding Principal Balance should be paid
in full.
Restriction on Use: Pursuant to Section 5 of the Master Lease, Lessee agrees to
the following Restrictions of the use of the Equipment: none
Special Terms: Pursuant to Section 1 of the Master Lease, the following
additional terms, set forth below or attached hereto, shall be applicable to and
shall constitute a part of this Equipment
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Schedule: Lessee shall allow WMU faculty and students use of the Equipment at
times that will not interfere with Lessee's use, so long as WMU faculty and
students abide by all of Lessee's requirements for using the NMR, including, but
not limited to, receiving appropriate training and receiving appropriate access
passcode by Lessee's system administrator.
Master Lease: This Equipment Schedule is issued pursuant to the Master Lease
Agreement identified above. All of the terms, conditions, representations and
warranties of the Master Lease Agreement are incorporated in this Equipment
Schedule as if they were expressly set forth in this Equipment Schedule. By
their execution and delivery of the Equipment Schedule, the parties reaffirm all
of the terms, conditions, representations and warranties of the Master Lease
Agreement except as modified in this Equipment Schedule.
Dated as of July 12, 2001
ESPERION THERAPEUTICS, INC. SOUTHWEST MICHIGAN
INNOVATION CENTER, INC.
By:/s/ Xxxxxxx X. Xxxxxxxx
----------------------- By:/s/ Xxxxx Xxxxxx
----------------
Its: COO Its: CEO
--- ---
_14_
EXHIBIT B
See Attached
_15_
EXHIBIT B
SCHEDULE NO. 2
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PAYMENT BEGINNING INTEREST INTEREST
NO. DATE BALANCE ACCRUED PAID
---------------------------------------------------------------------------------------------------
1 11/1/2001 114,100.00 380.33 0.00
2 12/1/2001 114,480.33 381.60 0.00
3 1/1/2002 114,861.93 382.87 0.00
4 2/1/2002 115,244.81 384.15 0.00
5 3/1/2002 115,628.96 385.43 0.00
6 4/1/2002 116,014.39 386.71 0.00
7 5/1/2002 116,401.10 388.00 0.00
8 6/1/2002 116,789.11 389.30 0.00
9 7/1/2002 117,178.40 390.59 0.00
10 8/1/2002 117,569.00 391.90 0.00
11 9/1/2002 117,960.89 393.20 0.00
12 10/1/2002 118,354.10 394.51 0.00
13 11/1/2002 118,748.61 395.83 589.52
14 12/1/2002 118,554.92 395.18 588.88
15 1/1/2003 118,361.23 394.54 588.23
16 2/1/2003 118,167.53 393.89 587.58
17 3/1/2003 117,973.84 393.25 586.94
18 4/1/2003 117,780.15 392.60 586.29
19 5/1/2003 117,586.46 391.95 585.65
20 6/1/2003 117,392.77 391.31 585.00
21 7/1/2003 117,199.07 390.66 584.36
22 8/1/2003 117,005.38 390.02 583.71
23 9/1/2003 116,811.69 389.37 583.06
24 10/1/2003 116,618.00 388.73 582.42
25 11/1/2003 116,424.31 388.08 581.77
26 12/1/2003 116,230.61 387.44 581.13
27 1/1/2004 116,036.92 386.79 580.48
28 2/1/2004 115,843.23 386.14 579.84
29 3/1/2004 115,649.54 385.50 579.19
30 4/1/2004 115,455.84 384.85 578.54
31 5/1/2004 115,262.15 384.21 577.90
32 6/1/2004 115,068.46 383.56 577.25
33 7/1/2004 114,874.77 382.92 576.61
34 8/1/2004 114,681.08 382.27 575.96
35 9/1/2004 114,487.38 381.62 575.32
36 10/1/2004 114,293.69 380.98 574.67
37 11/1/2004 114,100.00 380.33 380.33
38 12/1/2004 113,325.12 377.75 377.75
39 1/1/2005 112,547.66 375.16 375.16
40 2/1/2005 111,767.61 372.56 372.56
41 3/1/2005 110,984.96 369.95 369.95
42 4/1/2005 110,199.70 367.33 367.33
43 5/1/2005 109,411.82 364.71 364.71
44 6/1/2005 108,621.32 362.07 362.07
45 7/1/2005 107,828.18 359.43 359.43
46 8/1/2005 107,032.40 356.77 356.77
47 9/1/2005 106,233.96 354.11 354.11
48 10/1/2005 105,432.87 351.44 351.44
49 11/1/2005 104,629.10 348.76 348.76
50 12/1/2005 103,822.65 346.08 346.08
51 1/1/2005 103,013.52 343.38 343.38
52 2/1/2005 102,201.69 340.67 340.67
53 3/1/2005 101,387.15 337.96 337.96
54 4/1/2005 100,569.90 335.23 335.23
55 5/1/2005 99,749.92 332.50 332.50
56 6/1/2005 98,927.21 329.76 329.76
57 7/1/2005 98,101.76 327.01 327.01
58 8/1/2005 97,273.55 324.25 324.25
59 9/1/2005 96,442.59 321.48 321.48
60 10/1/2005 95,608.85 318.70 318.70
61 11/1/2005 94,772.34 315.91 315.91
62 12/1/2005 93,933.04 313.11 313.11
63 1/1/2006 93,090.94 310.30 310.30
64 2/1/2006 92,246.03 307.49 307.49
65 3/1/2006 91,398.31 304.66 304.66
66 4/1/2006 90,547.76 301.83 301.83
67 5/1/2006 89,694.37 298.98 298.98
68 6/1/2006 88,838.14 296.13 296.13
69 7/1/2006 87,979.06 293.26 293.26
70 8/1/2006 87,117.11 290.39 290.39
71 9/1/2006 86,252.30 287.51 287.51
72 10/1/2006 85,384.59 284.62 284.62
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PRINCIPAL ENDING PAYMENT CUMULATIVE
NO. PAID BALANCE AMOUNT INTEREST
-------------------------------------------------------------------------------------------------
1 0.00 114,480.33 0.00 380.33
2 0.00 114,861.93 0.00 761.93
3 0.00 115,244.81 0.00 1,144.81
4 0.00 115,628.96 0.00 1,528.96
5 0.00 116,014.39 0.00 1,914.39
6 0.00 116,401.10 0.00 2,301.10
7 0.00 116,789.11 0.00 2,689.11
8 0.00 117,178.40 0.00 3,078.40
9 0.00 117,569.00 0.00 3,469.00
10 0.00 117,960.89 0.00 3,860.89
11 0.00 118,354.10 0.00 4,254.10
12 0.00 118,748.61 0.00 4,648.61
13 0.00 118,554.92 589.52 5,044.44
14 0.00 118,361.23 588.88 5,439.62
15 0.00 118,167.53 588.23 5,834.16
16 0.00 117,973.84 587.58 6,228.05
17 0.00 117,780.15 586.94 6,621.30
18 0.00 117,586.46 586.29 7,013.90
19 0.00 117,392.77 585.65 7,405.85
20 0.00 117,199.07 585.00 7,797.16
21 0.00 117,005.38 584.36 8,187.83
22 0.00 116,811.69 583.71 8,577.84
23 0.00 116,618.00 583.06 8,967.22
24 0.00 116,424.31 582.42 9,355.94
25 0.00 116,230.61 581.77 9,744.02
26 0.00 116,036.92 581.13 10,131.46
27 0.00 115,843.23 580.48 10,518.25
28 0.00 115,649.54 579.84 10,904.39
29 0.00 115,455.84 579.19 11,289.89
30 0.00 115,262.15 578.54 11,674.74
31 0.00 115,068.46 577.90 12,058.95
32 0.00 114,874.77 577.25 12,442.51
33 0.00 114,681.08 576.61 12,825.43
34 0.00 114,487.38 575.96 13,207.70
35 0.00 114,293.69 575.32 13,589.32
36 0.00 114,100.00 574.67 13,970.30
37 774.88 113,325.12 1,155.21 14,350.64
38 777.46 112,547.66 1,155.21 14,728.39
39 780.05 111,767.61 1,155.21 15,103.54
40 782.65 110,984.96 1,155.21 15,476.10
41 785.26 110,199.70 1,155.21 15,846.05
42 787.88 109,411.82 1,155.21 16,213.39
43 790.50 108,621.32 1,155.21 16,578.09
44 793.14 107,828.18 1,155.21 16,940.16
45 795.78 107,032.40 1,155.21 17,299.59
46 798.44 106,233.96 1,155.21 17,656.36
47 801.10 105,432.87 1,155.21 18,010.48
48 803.77 104,629.10 1,155.21 18,361.92
49 806.45 103,822.65 1,155.21 18,710.68
50 809.13 103,013.52 1,155.21 19,056.76
51 811.83 102,201.69 1,155.21 19,400.14
52 814.54 101,387.15 1,155.21 19,740.81
53 817.25 100,569.90 1,155.21 20,078.77
54 819.98 99,749.92 1,155.21 20,414.00
55 822.71 98,927.21 1,155.21 20,746.50
56 825.45 98,101.76 1,155.21 21,076.26
57 828.20 97,273.55 1,155.21 21,403.26
58 830.96 96,442.59 1,155.21 21,727.51
59 833.73 95,608.85 1,155.21 22,048.98
60 836.51 94,772.34 1,155.21 22,367.68
61 839.30 93,933.04 1,155.21 22,683.59
62 842.10 93,090.94 1,155.21 22,996.70
63 844.91 92,246.03 1,155.21 23,307.00
64 847.72 91,398.31 1,155.21 23,614.49
65 850.55 90,547.76 1,155.21 23,919.15
66 853.38 89,694.37 1,155.21 24,220.98
67 856.23 88,838.14 1,155.21 24,519.96
68 859.08 87,979.06 1,155.21 24,816.08
69 861.95 87,117.11 1,155.21 25,109.35
70 864.82 86,252.30 1,155.21 25,399.74
71 867.70 85,384.59 1,155.21 25,687.25
72 85,384.59 0.00 85,669.21 25,971.86
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