Exhibit 10.22
MASTER LEASE AGREEMENT dated as of AUGUST
2, 2000 by and between COMDISCO
LABORATORY AND SCIENTIFIC GROUP. A DIVISION OF COMDISCO, INC. ("Lessor")
and EXELIXIS, INC. ("Lessee").
IN CONSIDERATION of the mutual agreements described below.
the parties agree as follows (all capitalized terms are defined in Section
14.12):
Property Leased.
Lessor leases to Lessee all of the
Equipment described on each Schedule. In the event of a conflict, the terms of
a Schedule prevail over this Master Lease.
Term.
On the Commencement Date Lessee will
be deemed to accept the Equipment, will be bound to its rental obligations for
each item of Equipment and the term of a Schedule will begin and continue
through the Initial Term and thereafter until terminated by either party upon
prior written notice received during the Notice Period. No termination may be
effective prior to the expiration of the Initial Term.
Rent
and Payment.
Rent is due and payable in advance,
in immediately available funds, on the first day of each Rent interval to the
payee and at the location specified in Lessor's invoice. Interim Rent is due and
payable when invoiced. If any payment is not made when due, Lessee will pay
interest at the Overdue Rate.
Selection and Warranty and Disclaimer of
Warranties.
Selection. Lessee
acknowledges that it has selected the Equipment and Lessor will disclaims any
reliance upon statements made by the Lessor.
Warranty and Disclaimer of Warranties. Lessor
warrants to Lessee that, so long as Lessee is not in default, Lessor will not
disturb Lessee's quiet and peaceful possession, and unrestricted use of the
Equipment. To the extent permitted by the manufacturer, Lessor assigns to
Lessee during the term of the Schedule any manufacturer's warranties for the
Equipment. LESSOR MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED AS TO ANY MATTER
WHATSOEVER, INCLUDING, WITHOUT LIMITATION, THE MERCHANTABILITY OF THE EQUIPMENT
OR ITS FITNESS FOR A PARTICULAR PURPOSE. Lessor is not responsible for any
liability, claim, loss, damage or expense of any kind (including strict
liability in tort) caused by the Equipment except for any loss or damage caused
by the negligent acts of Lessor. In no event is Lessor responsible for special,
incidental or consequential damages.
Title
and Assignment.
Title. Lessee holds the
Equipment subject and subordinate to the rights of the Owner, Lessor, any
Assignee and any Secured Party. Lessee authorizes Lessor, as Lessee's agent, to
prepare, execute and file in Lessee's name precautionary Uniform Commercial Code
financing statements showing the interest of the Owner, Lessor, and any Assignee
or Secured Party in the Equipment and to insert serial numbers in Schedules as
appropriate. Except as provided in Sections 5.2 and 7.2, Lessee will, at its
expense, keep the Equipment free and clear from any liens or encumbrances of any
kind (except any caused by Lessor) and will indemnify and hold Lessor, Owner,
any Assignee and Secured Party harmless from and against any loss caused by
Lessee's failure to do so.
Relocation or Sublease. Upon prior written notice,
Lessee may relocate the Equipment to any location within the continental United
States provided (i) the Equipment will not be used by an entity exempt from
federal income tax, (ii) all additional costs (including any administrative
fees, additional taxes and insurance coverage) are reconciled and promptly paid
by Lessee. Lessee may sublease the Equipment upon the reasonable consent of the
Lessor and the Secured Party provided Lessee meets the requirements under (i)
and (ii) above. No relocation or sublease will relieve Lessee from any of its
obligations under this Master Lease and the applicable Schedule.
Assignment by Lessor. The terms and conditions of
each Schedule have been fixed by Lessor in order to permit Lessor to sell and/or
assign or transfer its interest or grant a security interest in each Schedule
and/or the Equipment to a Secured Party or Assignee. In that event the term
Lessor will mean the Assignee and any Secured Party. However, any assignment.
sale, or other transfer by Lessor will not relieve Lessor of its obligations to
Lessee and will not materially change Lessee's duties or materially increase the
burdens or risks imposed on Lessee. The Lessee consents to and will acknowledge
such assignments in a written notice given to Lessee. Lessee also agrees
that:
- The Secured Party will be entitled to exercise all of
Lessor's rights, but will not be obligated to perform any of the obligations of
Lessor. The Secured Party will not disturb Lessee's quiet and peaceful
possession and unrestricted use of the Equipment so long as Lessee is not in
default and the Secured Party continues to receive all Rent payable under the
Schedule;
- Lessee will pay all Rent and all other amounts payable
to the Secured Party, despite any defense or claim which it has against Lessor.
Lessee reserves its right to have recourse directly against Lessor for any or
claim; and
- Subject to and without impairment of Lessee's leasehold
rights in Equipment. Lessee holds the Equipment for the Secured Party to the
extent of the Secured Party's rights in that Equipment.
Net
Lease and Taxes and Fees.
Net Lease. Each Schedule
constitutes a net lease, Lessee's obligation to pay Rent and all other amounts
is absolute and unconditional and is not subject to any abatement, reduction,
set-off, defense, counterclaim, interruption, deferment or recoupment for any
reason whatsoever.
Taxes and Fees. Lessee will pay when due or
reimburse Lessor for all taxes, fees or any other charges (together with any
related interest or penalties not arising from the negligence of Lessor) accrued
for or arising during the term of each Schedule against Lessor, Lessee or the
Equipment by any governmental authority (except only Federal, state and local
taxes on the capital or the net income of Lessor). Lessor will file all
personal property tax returns for the Equipment and pay all property taxes due.
Lessee will reimburse Lessor for property taxes within thirty (30) days of
invoice.
Care,
Use and Maintenance, Attachments and Reconfigurations, and Inspection by
Lessor.
Care, Use and Maintenance.
Lessee will operate the Equipment in accordance with all laws and
regulations and maintain the Equipment in good operating order and appearance,
protect the Equipment from deterioration, other than normal wear and tear, and
will not use the Equipment for any purpose other than that for which it was
designed. If commercially available, Lessee will maintain in force a standard
maintenance contract with the manufacturer of the Equipment and upon request
will provide Lessor with a complete copy of that contract. With Lessor's prior
written consent, Lessee may have the Equipment maintained by a party other than
the manufacturer. Lessee agrees to pay any costs necessary for the manufacturer
to bring the Equipment to original Equipment specifications at origination of
lease, normal wear and tear excepted, and to re-certify the Equipment as
eligible for manufacturer's maintenance at the expiration of lease term. The
lease term will continue upon the same terms and conditions until
recertification has been obtained
Attachments and Reconfigurations. Upon Lessor's
prior written consent, Lessee may reconfigure and install Attachments on the
Equipment. In the event of such a Reconfiguration or Attachment, Lessee shall,
upon return of the equipment at its expense, restore the Equipment to the
original configuration specified on the Schedule in accordance with the
manufacturer's specifications and in the same operating order, repair and
appearance as when installed (normal wear and tear excluded). Alternatively,
with Lessor's prior written consent which will not be unreasonably withheld.
Lessee may return the Equipment with any Attachment or upgrade.
Inspection by Lessor. Upon request, Lessee during
reasonable business hours and subject to Lessee's security requirements, will
make the Equipment and its related log and maintenance records, instruction
manuals, published statements of calibration capabilities and technical
specifications and certification. qualification and reports available to Lessor
for inspection.
Representations and Warranties of Lessee.
Lessee represents and warrants that
for the Master Lease and each Schedule:
- The execution, delivery and performance of the Lessee
have been authorized by all necessary corporate action;
- The individual executing was duly authorized to do
so;
- The Master Lease and each Schedule constitute legal,
valid and binding agreements of the Lessee enforceable in accordance with their
terms;
- The Equipment is personal property and when subjected to
use by Lessee will not be or become fixtures under applicable law; and
- The Equipment will be for laboratory use only and will
not be used in a clinical environment on patients.
Delivery and Return of Equipment.
Lessee assumes the full expense of
transportation of the Equipment to its initial location, installation,
deinstallation, and return to a location within the continental United States
(including without limitation the expense of in-transit insurance) all pursuant
to Lessor's instructions and manufacturer's specifications. Regarding
deinstallation, Lessee will assure that the Equipment is deinstalled by the
manufacturer in accordance with the manufacturer's recommended procedures and
decontaminated for transport in accordance with any Environmental Law, and
returned with a Verification of Decontamination in the same operating order,
repair, condition and appearance as when originally installed (less normal wear
and tear and depreciation) meeting all original equipment- manufacturer's
specifications for continued manufacturers maintenance. and accompanied by all
associated documents, manuals (including, but not limited to, those listed in
Section 7.3), spare parts and accessories and maintenance records for the
duration of the Schedule. In connection with deinstallation, Lessee will assure
that any Contaminant removed from the Equipment will be removed and transported
by a licensed waste removal transporter.
Labeling.
Upon request, Lessee will mark the
Equipment indicating Lessors interest. Lessee will keep all Equipment free from
any other marking or labeling which might be interpreted as a claim of
ownership.
Indemnity.
Lessee will indemnify and hold
Lessor, any Assignee and any Secured Party harmless from and against any and all
claims, costs, expenses, damages and liabilities, including reasonable
attorneys' fees, arising out of the ownership (for strict liability in tort
only), selection, possession, leasing, operation, control, use, maintenance,
delivery, return or other disposition of the Equipment including the handling or
disposal of the Contaminants. However, Lessee is not responsible to a party
indemnified hereunder for any claims, costs, expenses, damages and liabilities
occasioned by the negligent acts of such indemnified party. Lessee agrees to
carry death, bodily injury and property damage liability insurance during the
term of the Master Lease in amounts and against risks customarily insured
against by the Lessee on similar equipment owned by it. Any amounts received by
Lessor under that insurance will be credited against Lessee's obligations under
this Section.
Risk
of Loss.
Effective upon delivery and until the
Equipment is returned, Lessee relieves Lessor of responsibility for all risks of
physical damage to or loss or destruction of the Equipment. Lessee will carry
casualty insurance for each item of Equipment in an amount not less than the
Casualty Value. All policies for such insurance will name the Lessor and any
Secured Party as additional insured and as loss payee, and will provide for at
least thirty (30) days prior written notice to the Lessor of cancellation or
expiration. The Lessee will furnish appropriate evidence of such insurance.
Lessee shall promptly repair any damaged item of Equipment unless such Equipment
has suffered a Casualty Loss. Within fifteen (15) days of a Casualty Loss,
Lessee will provide written notice of that loss to Lessor and Lessee will, at
Lessor's option, either (a) replace the item of Equipment with Like Equipment
and marketable title to the Like Equipment will automatically vest in Lessor or
(b) pay the Casualty Value and after that payment and the payment of all other
amounts due and owing, Lessee's obligation to pay further Rent for the item of
Equipment will cease.
Default, Remedies and Mitigation.
Default. The occurrence of
any one or more of the following Events of Default constitutes a default under a
Schedule:
- Lessee's failure to pay Rent or other amounts payable by
Lessee when due if that failure continues for ten (10) days after written
notice; or
- Lessee's failure to perform any other term or condition
of the Schedule or the material inaccuracy of any representation or warranty
made by the Lessee in the Schedule or in any document or certificate furnished
to the Lessor hereunder if that failure or inaccuracy continues for fifteen (15)
days after written notice; or
- An assignment by Lessee for the benefit of its creditors,
the failure by Lessee to pay its debts when due, the insolvency of Lessee, the
filing by Lessee or the filing against Lessee of any petition under any
bankruptcy or insolvency law or for the appointment of a trustee or other
officer with similar powers. the adjudication of Lessee as insolvent, the
liquidation of Lessee, or the taking of any action for the purpose of the
foregoing; or
- The occurrence of an Event of Default under any Schedule
or other agreement between Lessee and Lessor or its Assignee or Secured
Party.
Remedies. Upon the occurrence of any of the above
Events of Default, Lessor, at its option, may:
- enforce Lessee's performance of the provisions of the
applicable Schedule by appropriate court action in law or in equity;
- recover from Lessee any damages and or expenses,
including Default Costs;
- with notice and demand, recover all sums due and
accelerate and recover the present value of the remaining payment stream of all
Rent due under the defaulted Schedule (discounted at the same rate of interest
at which such defaulted Schedule was discounted with a Secured Party plus any
prepayment fees charged to Lessor by the Secured Party or, if there is no
Secured Party, then discounted at 6%) together with all Rent and other amounts
currently due as liquidated damages and not as a penalty;
- with notice and process of law and in compliance with
Lessee's security requirements, Lessor may enter on Lessee's premises to remove
and repossess the Equipment without being liable to Lessee for damages due to
the repossession, except those resulting from Lessor's, its assignees', agents'
or representatives' negligence; and
- pursue any other remedy permitted by law or
equity.
The above remedies, in Lessor's discretion and to the extent
permitted by law, are cumulative and may be exercised successively or
concurrently.
Mitigation. Upon return of the Equipment pursuant
to the terms of Section 13.2, Lessor will use its best efforts in accordance
with its normal business procedures (and without obligation to give any priority
to such Equipment) to mitigate Lessor's damages as described below. EXCEPT AS
SET FORTH IN THIS SECTION, LESSEE HEREBY WAIVES ANY RIGHTS NOW OR HEREAFTER
CONFERRED BY STATUTE OR OTHERWISE WHICH MAY REQUIRE LESSOR TO MITIGATE ITS
DAMAGES OR MODIFY ANY OF LESSOR'S RIGHTS OR REMEDIES STATED HEREIN. Lessor may
sell, lease or otherwise dispose of all or any part of the Equipment at a public
or private sale for cash or credit with the privilege of purchasing the
Equipment. The proceeds from any sale, lease or other disposition of the
Equipment are defined as either:
- if sold or otherwise disposed of, the cash proceeds less
the Fair Market Value of the Equipment at the expiration of the Initial Term
less the Default Costs; or
- if leased, the present value (discounted at three points
over the prime rate as referenced in the Wall Street Journal at the time
of the mitigation) of the rentals for a term not to exceed the Initial Term,
less the Default Costs.
Any proceeds will be applied against liquidated damages and
any other sums due to Lessor from Lessee. However, Lessee is liable to Lessor
for, and Lessor may recover, the amount by which the proceeds are less than the
liquidated damages and other sums due to Lessor from Lessee.
Additional Provisions.
Entire Agreement. This
Master Lease, Addendum and associated Schedules supersede all other oral or
written agreements or understandings between the parties concerning the
Equipment including, for example, purchase orders. ANY AMENDMENT OF THIS MASTER
LEASE OR A SCHEDULE, MAY ONLY BE ACCOMPLISHED BY A WRITING SIGNED BY THE PARTY
AGAINST WHOM THE AMENDMENT IS SOUGHT TO BE ENFORCED.
No Waiver. No action taken by Lessor or Lessee
shall be deemed to constitute a waiver of compliance with any representation,
warranty or covenant contained in this Master Lease or a Schedule. The waiver by
Lessor or Lessee of a breach of any provision of this Master Lease or a Schedule
will not operate or be construed as a waiver of any subsequent breach.
Binding Nature. Each Schedule is binding upon, and
inures to the benefit of Lessor and its assigns. LESSEE MAY NOT ASSIGN ITS
RIGHTS OR OBLIGATIONS.
Survival of Obligations. All agreements,
obligations including, but not limited to those arising under Section 6.2,
representations and warranties contained in this Master Lease, any Schedule or
in any document delivered in connection with those agreements are for the
benefit of Lessor and any Assignee or Secured Party and survive the execution,
delivery, expiration or termination of this Master Lease.
Notices. Any notice, request or other
communication to either party by the other will be given in writing and deemed
received upon the earlier of actual receipt or three days after mailing if
mailed postage prepaid by regular or airmail to Lessor (to the attention of
"Lease Administrator") or Lessee, at the address set out in the Schedule or, one
day after it is sent by courier or facsimile transmission if receipt is verified
by the receiving party.
Applicable Law. THIS MASTER LEASE HAS BEEN, AND
EACH SCHEDULE WILL HAVE BEEN MADE, EXECUTED AND DELIVERED IN THE STATE OF
ILLINOIS AND WILL BE GOVERNED AND CONSTRUED FOR ALL PURPOSES IN ACCORDANCE WITH
THE LAWS OF THE STATE OF ILLINOIS WITHOUT GIVING EFFECT TO CONFLICT OF LAW
PROVISIONS. NO RIGHTS OR REMEDIES REFERRED TO IN ARTICLE 2A OF THE UNIFORM
COMMERCIAL CODE WILL BE CONFERRED ON LESSEE UNLESS EXPRESSLY GRANTED IN THIS
MASTER LEASE OR A SCHEDULE.
Severability. If any one or more of the provisions
of this Master Lease or any Schedule is for any reason held invalid, illegal or
unenforceable, the remaining provisions of this Master Lease and any such
Schedule will be unimpaired, and the invalid, illegal or unenforceable provision
replaced by a mutually acceptable valid, legal and enforceable provision that is
closest to the original intention of the parties.
Counterparts. This Master Lease and any Schedule
may be executed in any number of counterparts, each of which will be deemed an
original, but all such counterparts together constitute one and the same
instrument. If Lessor grants a security interest in all or any part of a
Schedule, the Equipment or sums payable thereunder, only that counterpart
Schedule marked "Secured Party's Original" can transfer Lessor's rights and all
other counterparts will be marked "Duplicate".
Licensed Products. Lessee shall obtain no title to
Licensed Products which will at all times remain the property of the owner of
the Licensed Products. A license from the owner may be required and it is
Lessee's responsibility to obtain any required license before the use of the
Licensed Products. Lessee agrees to treat the Licensed Products as confidential
information of the owner, to observe all copyright restrictions, and not to
reproduce or sell the Licensed Products.
Additional Documents. Lessee will, upon execution
of this Master Lease and as may be requested thereafter, provide Lessor with a
secretary's certificate of incumbency and authority and any other documents
reasonably requested by Lessor. Upon the execution of each Schedule with an
aggregate Rent in excess of $2,000,000, Lessee will provide Lessor with an
opinion from Lessee's counsel regarding the representations and warranties in
Section 8. Lessee will furnish, upon request, audited financial statements for
the most recent period.
Electronic Communications. Each of the parties may
communicate with the other by electronic means under mutually agreeable
terms.
Definitions.
Assignee - means an entity to whom Lessor has sold
or assigned its rights as owner and Lessor of Equipment.
Attachment - means any accessory, equipment or device
and the installation thereof that does not impair the original function or use
of the Equipment and is capable of being removed without causing material damage
to the Equipment and is not an accession to the Equipment.
Casualty Loss - means the irreparable loss or
destruction of Equipment.
Casualty Value - means the amount equal to the present
value of the aggregate Rent remaining for the balance of the current term, plus
the present value of the Fair Market Value (determined as of the expiration of
the current term) of Like Equipment computed using an interest rate equal to the
rate for Treasury Securities having a comparable term to the current term.
However, if a Casualty Value Table is attached to the relevant Schedule its
terms will control.
Commencement Certificate - means the Lessor provided
certificate which must be signed by Lessee within ten days of the Commencement
Date as requested by Lessor.
Commencement Date - is defined in each Schedule.
Contaminant - means any material, substance or waste
regulated or otherwise covered under any Environmental Law or other material or
substance which has in the past or could in the future constitute a health,
safety or environmental hazard to any person, property or natural resources.
Default Costs - means reasonable attorney's fees and
remarketing costs resulting from a Lessee default or Lessor's enforcement of its
remedies.
Environmental Law - means any federal, foreign, state
or local law, rule or regulation pertaining to the protection of the
environment, including, but not limited to, the Comprehensive Environmental
Response, Compensation and Liability Act ("CERCLA") (42 U.S.C. Section 9601 et
seq.), the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.), the
Resource Conservation and Recovery Act (42 U.S.C. 6901 et seq.), the Clean Air
Act (42 U.S.C. 7401 et seq.), the Toxic Substances Control Act (15 U.S.C. 2601
et seq.), the Federal Insecticide, Fungicide and Rodenticide Act (7 U.S.C. 1361
et seq.), and the Occupational Safety and Health Act (10 U. S.C. 651 et seq.),
as these laws have been amended or supplemented, and any analogous foreign,
state or local statutes, and the regulations promulgated pursuant thereto.
Equipment - means the property described on a Schedule
and any replacement for that property required or permitted by this Master Lease
or a Schedule but not including any Attachment.
Event of Default - means the events described in
Subsection 13. 1.
Fair Market Value - means the aggregate amount which
would be obtainable in an arm's-length transaction between an informed and
willing buyer/user purchasing the Equipment in place for its originally intended
use and an informed and willing seller under no compulsion to sell.
Initial Term - means the period of time beginning on
the first day of the first full Rent Interval following the Commencement Date
for all items of Equipment and continuing for the number of Rent Intervals
indicated on a Schedule.
Installation Date - means the day on which the
Equipment is installed and qualified for a commercially available manufacturer's
standard maintenance contract or warranty coverage, if available.
Interim Rent - means the pro-rata portion of Rent due
for the period from the Commencement Date through but not including the first
day of the first full Rent Interval included in the Initial Term.
Licensed Products - means any software or other
licensed products attached to the Equipment.
Like Equipment - means replacement Equipment which is
lien free and of the same model, type, configuration and manufacture as
Equipment.
Notice Period - means the time period described in a
Schedule during which Lessee may give Lessor notice of the termination of the
term of that Schedule.
Overdue Rate - means the lesser of 18% per year or the
maximum rate permitted by the law of the state where the Equipment is
located.
Owner - means the owner of Equipment.
Reconfiguration - means any change to Equipment that
would upgrade or downgrade the performance capabilities of the Equipment in any
way.
Rent - means the rent, including Interim Rent, Lessee
will pay for each item of Equipment expressed in a Schedule either as a specific
amount or an amount equal to the amount which Lessor pays for an item of
Equipment multiplied by a lease rate factor plus all other amounts due to Lessor
under this Master Lease or a Schedule.
Rent Interval - means a full calendar month or quarter
as indicated on a Schedule.
Schedule - means an Equipment Schedule which
incorporates all of the terms and conditions of this Master Lease and, for
purposes of Section 14.8, its associated Commencement Certificate(s).
Secured Party - means an entity to whom Lessor has
granted a security interest in a Schedule and related Equipment for the purpose
of securing a loan.
Verification of Decontamination - means a letter from
the party performing the decontamination, stating that such party is licensed by
the Occupational Safety and Health Agency or the appropriate officials and that
the actual decontamination was completed both in accordance with manufacturers
specifications and procedures, and any governmental permit required for the
operation of the Equipment and the disposal of any Contaminants.
IN WITNESS WHEREOF, the parties hereto have executed this
Master Lease on or as of the day and year first above written.
EXELIXIS, INC
as Lessee |
COMDISCO LABORATORY AND SCIENTIFIC GROUP,
A DIVISION OF COMDISCO, INC.
as Lessor |
By: |
By: |
Title: |
Title: |
rev. 12/99