Exhibit 10.34
MASTER LEASE AGREEMENT
Lessor: TRANSAMERICA BUSINESS CREDIT CORPORATION
Riverway II
West Office Tower
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Lessee: CUBIST PHARMACEUTICALS, INC. ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
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The lessor pursuant to this Master Lease Agreement ("Agreement") dated
as of February 7, 1997, is Transamerica Business Credit Corporation
("Lessor"). All equipment, 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.
1. LEASE. (a) Subject to and upon all of the terms and conditions of
this Agreement and each Schedule, Lessor hereby agrees to lease to Lessee and
Lessee hereby agrees to lease from Lessor the Equipment for the Term (as
defined in Paragraph 2 below) thereof (b) Except as provided below, before
purchasing any Equipment from a manufacturer or supplier and leasing the same
to Lessee, Lessor shall have received before the acceptance of the Equipment
by Lessee an Assignment Agreement in form and substance satisfactory to
Lessor, executed by Lessee and acknowledged by such manufacturer or supplier
assigning to Lessor all of Lessee's right, title and interest in and to such
Equipment and the purchase agreement relating thereto (the "Assignment").
Upon delivery of such Equipment, Lessee shall transmit to Lessor a properly
executed Certificate of Acceptance in the form attached hereto covering each
item of Equipment set forth in such Assignment. Upon execution by Lessee and
delivery to Lessor of a Certificate of Acceptance, (x) each item of Equipment
set forth therein shall be deemed to have been delivered to and irrevocably
accepted by Lessee for lease hereunder, (y) Lessee shall make payments of
interim rent ("Interim Rent") at the per them rate set forth in the
Certificate of Acceptance, and (z) such Certificate of Acceptance shall be
deemed a Schedule for all purposes hereof, until such time as a Schedule
covering the Equipment described in the Certificate of Acceptance is executed
and delivered by Lessee to Lessor. Interim Rent shall be due on the date
stated in the Certificate of Acceptance. On or before the 28th day of the
last month each calendar quarter, Lessee shall deliver to Lessor a Schedule,
duly executed by Lessee, covering all Equipment delivered to Lessee through
the second week of the last month of such calendar quarter for which no
Schedule was previously delivered.
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 as the same may be adjusted, in the sole discretion of Lessor
pursuant to an Adjustment Letter (the "Adjustment Letter")(but in no event
shall any Lease have a commencement date of later than December 31, 1997)
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
quarterly..
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 five days after the day on which it becomes payable, Lessee will pay
on demand, as a late charge, an amount equal to 5% of such unpaid Rent 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.
4. LEASE NOT CANCELABLE; LESSEE'S OBLIGATIONS ABSOLUTE. No Lease may
be canceled or terminated except as expressly provided herein. Lessee's
obligation to pay all Rent due or to become due hereunder shall be absolute
and unconditional and shall not be subject to any delay, reduction, set-off,
defense, counterclaim or recoupment for any reason whatsoever, including any
failure of the Equipment or any representations by the manufacturer or the
vendor thereof. If the Equipment is unsatisfactory for any reason, Lessee
shall make any claim solely against the manufacturer or the vendor thereof
and shall, nevertheless, pay Lessor all Rent payable hereunder.
5. SELECTION AND USE OF EQUIPMENT. Lessee agrees that it shall be
responsible for the selection, use of, and results obtained from, the
Equipment and any other associated equipment or services.
6. WARRANTIES. LESSOR MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR
IMPLIED, AS TO ANY MATTER WHATSOEVER, INCLUDING, WITHOUT LIMITATION, THE
DESIGN OR CONDITION OF THE EQUIPMENT OR ITS MERCHANTABILITY, SUITABILITY,
QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, AND HEREBY DISCLAIMS ANY SUCH
WARRANTY. LESSEE SPECIFICALLY WAIVES ALL RIGHTS TO MAKE A CLAIM AGAINST
LESSOR FOR BREACH OF ANY WARRANTY WHATSOEVER. 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, the benefits of any
and all warranties made available by the manufacturer or the vendor of the
Equipment to the extent assignable.
7. DELIVERY. Lessor hereby appoints Lessee as Lessor's agent for the
sole and limited purpose of accepting delivery of the Equipment from each
vendor thereof. Lessee shall pay any and all delivery and installation
charges. Lessor shall not be liable to Lessee for any delay in, or failure
of, delivery of the Equipment.
8. RENEWAL. So long as no Event of Default or event which, with the
giving of notice, the passage of time, or both, would constitute an Event of
Default, shall have occurred and be continuing, or the Lessee shall not have
exercised its purchase option under Paragraph 9 hereof, each Lease will
automatically renew for a term of twelve months (the "Renewal Term") on the
terms and conditions of this Agreement or as set forth in the applicable
Schedule; provided, however, that 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 equal to
1.25% of the equipment cost plus any monthly sales or use tax.
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, upon
written notice to Lessor received at least one hundred eighty days before the
expiration of a Term, 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 its fair market value as set forth in the Schedule on an "In-place,
In-use" basis, as mutually agreed by Lessor and Lessee, or, if they cannot
agree, as determined by an independent appraiser selected by Lessor and
approved by Lessee, which approval will not be unreasonably delayed or
withheld. Lessee shall pay the cost of any such appraisal. 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, upon written notice to Lessor received at least
one hundred eighty days prior to the expiration of the Renewal Term,
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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 its then fair market value on an
"In-place, In-use" basis. 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.
10. OWNERSHIP; INSPECTION; MARKING; FINANCING STATEMENTS. Lessee shall
affix to the Equipment 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. 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 by reason of the Equipment being
claimed or deemed to be real property. Upon request by Lessor, Lessee shall
obtain and deliver to Lessor valid and effective waivers, in recordable form,
by the owners, landlords and mortgagees of the real property upon which the
Equipment is located or certificates of Lessee that it is the owner of such
real property or that such real property is neither leased nor mortgaged.
Lessee shall make the Equipment and its maintenance records available for
inspection by Lessor at reasonable times and upon reasonable notice. Lessee
shall execute and deliver to Lessor for filing any UCC financing statements
or similar documents Lessor may reasonably request.
11. EQUIPMENT USE. Lessee agrees that the Equipment will be operated
by competent, qualified personnel in connection with Lessee's business for
the purpose for which the Equipment was designed and in accordance with
applicable operating instructions, laws and government regulations, and that
Lessee shall use all reasonable precautions to prevent loss or damage to the
Equipment from fire and other hazards. Lessee shall procure and maintain in
effect all orders, licenses, certificates, permits, approvals and consents
required by federal, state or local laws or by any governmental body, agency
or authority in connection with the delivery, installation, use and operation
of the Equipment.
12. MAINTENANCE. Lessee, at its sole cost and expense, shall keep the
Equipment in a suitable environment as specified by the manufacturer's
guidelines or the equivalent and meet all recertification requirements, and
shall maintain the Equipment in its original condition and working order,
ordinary wear and tear excepted. At the reasonable request of Lessor, Lessee
shall furnish all proof of maintenance.
13. ALTERATION; MODIFICATIONS; PARTS. Lessee may alter or modify the
Equipment only with the prior written consent of Lessor. Any alteration
shall be removed and the Equipment restored to its normal, unaltered
condition at Lessee's expense (without damaging the Equipment's originally
intended function or its value) prior to its return to Lessor. Any part
installed in connection with warranty or maintenance service or which cannot
be removed in accordance with the preceding sentence shall be the property of
Lessor.
14. RETURN OF EQUIPMENT. Except for Equipment that has suffered a
Casualty Loss (as defined in Paragraph 15 below) and is not required to be
repaired pursuant to Paragraph 15 below or Equipment purchased by Lessee
pursuant to Paragraph 9 above, upon the 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
one hundred eighty days before
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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
one hundred eighty-day period prior to the end of a Term or the Renewal Term,
Lessor and its prospective purchasers or lessees shall have, upon not less
than two business days' prior notice to Lessee and during normal business
hours, or at any time and without prior notice upon the occurrence and
continuance of an Event of Default, the right of access to the premises on
which the Equipment is located to inspect the Equipment, and Lessee shall
cooperate in all other respects with Lessor's remarketing of the Equipment.
The provisions of this Paragraph 14 are of the essence of the Lease, and upon
application to any court of equity having jurisdiction in the premises,
Lessor shall be entitled to a decree against Lessee requiring specific
performance of the covenants of Lessee set forth in this Paragraph 14. If
Lessee fails to return the Equipment when required, the terms and conditions
of the Lease shall continue to be applicable and Lessee shall continue to pay
Rent until the Equipment is received by Lessor.
15. CASUALTY INSURANCE; LOSS OR DAMAGE. Lessee will maintain, at its
own expense, liability and property damage insurance relating to the
Equipment, insuring against such risks as are customarily insured against on
the type of equipment leased hereunder by businesses in which Lessee is
engaged in such amounts, in such form, and with insurers satisfactory to
Lessor; provided, however, that the amount of insurance against damage or
loss shall not be less than the greater of (a) the replacement value of the
Equipment and (b) the stipulated loss value of the Equipment specified in the
applicable Schedule ("Stipulated Loss Value"). Each liability insurance
policy shall provide coverage (including, without limitation, personal injury
coverage) of not less than $1,000,000 for each occurrence, and shall name
Lessor as an additional insured; and each property damage policy shall name
Lessor as sole loss payee and all policies shall contain a clause requiring
the insurer to give Lessor at least thirty days prior written notice of any
alteration in the terms or cancellation of the policy. Lessee shall furnish
a copy of each insurance policy (with endorsements) 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 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 Stipulated Loss Value 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 rate imputed in the
Rent payments hereunder (as reasonably determined by Lessor) from the date of
the Casualty Loss through the date of payment of such amounts, whereupon
Lessor shall transfer to Lessee, without recourse or warranty (express or
implied), all of Lessor's interest, if any, in and to such Equipment on an
"AS IS, WHERE IS" basis. The proceeds of any insurance payable with respect
to the Equipment shall be applied, at the option of Lessor, either towards
(i) repair of the Equipment or (ii) payment of any of Lessee's obligations
hereunder. Lessee hereby appoints Lessor as Lessee's attorney-in-fact to
make claim for, receive payment of, and execute and endorse all documents,
checks or drafts issued with respect to any Casualty Loss under any insurance
policy relating to the Equipment.
16. TAXES. Lessee shall pay when due, and indemnify and hold Lessor
harmless from, all sales, use, excise and other taxes, charges, and fees
(including, without limitation, income, franchise, business and occupation,
gross receipts, licensing, registration, titling, personal property, stamp
and interest equalization taxes, levies, imposts, duties, charges or
withholdings of any nature), and 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
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taxes on or measured by the net income of Lessor. Upon request, Lessee will
provide proof of payment. Unless Lessor elects otherwise, Lessor will pay
all property taxes on the Equipment for which Lessee shall reimburse Lessor
promptly upon request. 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 ▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇▇.
17. LESSOR'S PAYMENT. If Lessee fails to perform its obligations under
Paragraph 15 or 16 above, or Paragraph 23 below, Lessor shall have the right
to substitute performance, in which case, Lessee shall immediately reimburse
Lessor therefor.
18. GENERAL INDEMNITY. Each Lease is a net lease. Therefore, Lessee
shall indemnify Lessor and its successors and assigns against, and hold
Lessor and its successors and assigns harmless from, any and all claims,
actions, damages, obligations, liabilities and all costs and expenses,
including, without limitation, 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 to have
occurred as a result of the gross negligence or willful misconduct of Lessor
or its successors and assigns. Lessee agrees that upon written notice by
Lessor of the assertion of any claim, action, damage, obligation, liability
or lien, Lessee shall assume full responsibility for the defense thereof,
provided that Lessor's failure to give such notice shall not limit or
otherwise affect its rights hereunder. 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; or (c) move any Equipment from the location specified for it in
the applicable Schedule, except that Lessee may move Equipment to another
location within the United States provided that Lessee has delivered to
Lessor (A) prior written notice thereof and (B) duly executed financing
statements and other agreements and instruments (all in form and substance
satisfactory to Lessor) necessary or, in the opinion of the Lessor, desirable
to protect Lessor's interest in such Equipment. Notwithstanding anything to
the contrary in the immediately preceding sentence, Lessee may keep any
Equipment consisting of motor vehicles or rolling stock at any location in
the United States.
20. ASSIGNMENT BY LESSOR. Lessor may assign its interest or grant a
security interest in any Lease and the Equipment individually or together, in
whole or in part. If Lessee is given written notice of any such assignment,
it shall immediately make all payments of Rent and other amounts hereunder
directly to such assignee. Each such assignee shall have all of the rights
of Lessor under each Lease assigned to it. Lessee shall not assert against
any such assignee any set-off, defense or counterclaim that Lessee may have
against Lessor or any other person.
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 five 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 any other provision under or in connection with a Lease or violates
any of the covenants or agreements of such Lease Party 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
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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; (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 ail of its assets or make
any material change in its lines of business; (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); 0) 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 necessary to the profitable conduct of its business, fail generally to
pay its debts as they mature, or call a meeting for purposes of compromising
its debts; (1) any of the Lease Parties shall deny or disaffirm its
obligations hereunder or under any of the documents delivered in connection
herewith; or (m) there is a change in more than 35% of the ownership of any
equity interests of any of the Lease Parties on the date hereof or more than
35% of such interests become subject to any contractual, judicial or
statutory lien, charge, security interest or encumbrance.
22. REMEDIES. Upon the occurrence and continuation of an Event of
Default, Lessor shall have the right, in its sole discretion, to exercise any
one or more of the following remedies: (a) terminate each Lease; (b) declare
any and all Rent and other amounts then due and any and all Rent and other
amounts to become due under each Lease (collectively, the "Lease
Obligations") immediately due and payable; (c) take possession of any or all
items of Equipment, wherever located, without demand, notice, court order or
other process of law, and without liability for entry to Lessee's premises,
for damage to Lessee's property or otherwise; (d) demand that Lessee
immediately return any or all Equipment to Lessor in accordance with
Paragraph 14 above, and, for each day that Lessee shall fail to return any
item of Equipment, Lessor may demand an amount equal to the Rent payable for
such Equipment in accordance with Paragraph 14 above; (e) lease, sell or
otherwise dispose of the Equipment in a commercially reasonable manner, with
or without notice and on public or private bid; (f) recover the following
amounts from the Lessee (as damages, including reimbursement of costs and
expenses, liquidated for all purposes and not as a penalty): (i) all costs
and expenses of Lessor reimbursable to it hereunder,. including, without
limitation, expenses of disposition of the Equipment, 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 five percent simple interest per annum; (iv) the reversionary
value of the Equipment as of the expiration of the Term of the applicable
Lease as set forth on the applicable Schedule; and (v) any indebtedness for
Lessee's indemnity under Paragraph 18 above, plus a late charge at the rate
specified in Paragraph 3 above, less the amount received by Lessor, if any,
upon sale or re-let of the Equipment; and (g) exercise any other right or
remedy to recover damages or enforce the terms of the Leases. Upon the
occurrence and continuance of an Event of Default or an event which with the
giving of notice or the passage of time, or both, would result in an Event of
Default, Lessor shall have the right, whether or not Lessor has made any
demand or the obligations of Lessee hereunder have matured, to
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appropriate and apply to the payment of the obligations of Lessee hereunder
all security deposits and other deposits (general or special, time or demand,
provisional or final) now or hereafter held by and other indebtedness or
property now or hereafter owing by Lessor to Lessee. Lessor may pursue any
other rights or remedies available at law or in equity, including, without
limitation, rights or remedies seeking damages, specific performance and
injunctive relief. Any failure of Lessor to require strict performance by
Lessee, or any waiver by Lessor of any provision hereunder or under any
Schedule, shall not be construed as a consent or waiver of any other breach
of the same or of any other provision. Any amendment or waiver of any
provision hereof or under any Schedule or consent to any departure by Lessee
herefrom or therefrom shall be in writing and signed by Lessor.
No right or remedy is exclusive of any other provided herein or
permitted by law or equity. All such rights and remedies shall be cumulative
and may be enforced concurrently or individually from time to time.
23. LESSOR'S EXPENSE. Lessee shall pay Lessor on demand all its
reasonable expenses which shall not exceed $5,000 without the written consent
of Lessee (including 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. To the extent permitted by
applicable law, Lessee also hereby waives any rights now or hereafter
conferred by statute or otherwise which may require Lessor to sell, lease or
otherwise use any Equipment in mitigation of Lessor's damages as set forth in
Paragraph 22 above or which may otherwise limit or modify any of Lessor's
rights or remedies under Paragraph 22. 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, ▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Assistant Vice
President, Lease Administration, with a copy to Lessor at Riverway 11, West
Office Tower, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
Legal Department, if to Lessee, then to Cubist Pharmaceuticals, Inc., ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Director: Finance
and Administration 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 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; (e) 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.
7
27. FURTHER ASSURANCES. Lessee, upon the request of Lessor, will
execute, acknowledge, record or file, as the case may be, such further
documents and do such further acts as may be reasonably necessary, desirable
or proper to carry out more effectively the purposes of this Agreement.
Lessee hereby appoints Lessor as its attorney-in-fact to execute on behalf of
Lessee and authorizes Lessor to file without Lessee's signature any UCC
financing statements and amendments Lessor deems advisable.
28. FINANCIAL STATEMENTS. Lessee shall deliver to Lessor: (a) as soon
as available, but not later than 120 days after the end of each fiscal year
of Lessee and its consolidated subsidiaries, the consolidated balance sheet,
income statement and statements of cash flows and shareholders equity for
Lessee and its consolidated subsidiaries (the "Financial Statements") for
such year, reported on by independent certified public accountants without an
adverse qualification; and (b) as soon as available, but not later than 60
days after the end of each of the first three fiscal quarters in any fiscal
year of Lessee and its consolidated subsidiaries, the Financial Statements
for such fiscal quarter, together with a certification duly executed by a
responsible officer of Lessee that such Financial Statements have been
prepared in accordance with generally accepted accounting principles and are
fairly stated in all material respects (subject to normal year-end audit
adjustments). Lessee shall also deliver to Lessor as soon as available
copies of all press releases and other similar communications made by Lessee.
29. CONSENT TO JURISDICTION. Lessee irrevocably submits to the
jurisdiction of any Illinois state or federal court sitting in Illinois for
any action or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby, and Lessee irrevocably agrees that all
claims in respect of any such action or proceeding may be heard and
determined in such Illinois state or federal court.
30. WAIVER OF JURY TRIAL. LESSEE AND LESSOR IRREVOCABLY WAIVE ALL
RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT
OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
31. FINANCE LEASE. Lessee and Lessor agree that each Lease is a
"Finance Lease" as defined by Section 2A-103(g) of the UCC. Lessee
acknowledges that Lessee has reviewed and approved each written Supply
Contract (as defined by UCC 2A-103(y)) covering Equipment purchased from each
"Supplier" (as defined by UCC 2A- 103 (x)) thereof
32. NO AGENCY. Lessee acknowledges and agrees that neither the
manufacturer 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 Lessee's duty to pay Rent and perform its
other obligations as set forth in this Agreement or any Schedule.
33. SPECIAL TAX INDEMNIFICATION. Lessee acknowledges that Lessor, in
determining the Rent due hereunder, has assumed that certain tax benefits as
are provided to an owner of property under the Internal Revenue Code of 1986,
as amended (the "Code"), and under applicable state tax law, including,
without limitation, depreciation deductions under Section 168(b) of the Code,
and deductions under Section 1631 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, 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, (ii) not been required to include any amount in income other than
the Rent and (iii) 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. The Additional Rent shall be due immediately upon written notice by
Lessor to Lessee of Lessor's inability to obtain tax benefits, the inclusion
of any amount in income other than the Rent or the recognition of income in
respect of
8
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 REGARD TO ITS CONFLICT OF LAW
PROVISIONS. IF ANY PROVISION SHALL BE HELD TO BE INVALID OR UNENFORCEABLE,
THE VALIDITY AND ENFORCEABILITY OF THE REMAINING PROVISIONS SHALL NOT IN ANY
WAY BE AFFECTED OR IMPAIRED.
LESSEE ACKNOWLEDGES THAT LESSEE HAS READ THIS AGREEMENT AND THE SCHEDULE
HERETO, UNDERSTANDS THEM, AND AGREES TO BE BOUND BY THEIR TERMS AND
CONDITIONS. FURTHER, LESSEE AND LESSOR AGREE THAT THIS AGREEMENT AND THE
SCHEDULES DELIVERED IN CONNECTION HEREWITH FROM TIME TO TIME 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.
IN WITNESS WHEREOF, the parties hereto have executed or caused this
Master Lease Agreement to be duly executed by their duly authorized officers
as of this 14th day of February, 1997.
CUBIST PHARMACEUTICALS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Director of Finance & Administration
Federal Identification Number ###-##-####
TRANSAMERICA BUSINESS CREDIT CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President