Master Lease Agreement between Comdisco Laboratory and Scientific Group and Exelixis, Inc. (August 2, 2000)
This agreement is between Comdisco Laboratory and Scientific Group (Lessor) and Exelixis, Inc. (Lessee), where Comdisco leases laboratory equipment to Exelixis. Exelixis agrees to pay rent, maintain the equipment, and cover taxes and fees, while Comdisco retains ownership. The lease terms are detailed in individual schedules, and Exelixis must keep the equipment in good condition and may relocate or sublease it with consent. The agreement outlines payment terms, warranties, assignment rights, and conditions for equipment use and return.
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.
- Term.
- Rent and Payment.
- 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.
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.
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 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.
- 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.
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.
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.
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.
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.
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.
- 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.
- 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.
- 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.
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 | COMDISCO LABORATORY AND SCIENTIFIC GROUP, |
By: | By: |
Title: | Title: |
rev. 12/99