EXHIBIT 10.14
SECOND AMENDMENT TO MASTER
LEASE AGREEMENT
THIS SECOND AMENDMENT to MASTER LEASE AGREEMENT (the "Amendment"),
dated as of January 31, 2000, by and between Dendreon Corporation (the
"Lessee"), a Delaware Corporation, having its principal place of business and
chief executive office at 0000 Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx 00000, and
TRANSAMERICA BUSINESS CREDIT CORPORATION (the "Lessor"), a Delaware Corporation,
having its principal office at Riverway II, West Office Tower, 0000 Xxxx Xxxxxxx
Xxxx, Xxxxxxxx, Xxxxxxxx, 00000.
WITNESSETH:
WHEREAS, the Lessee and the Lender are parties to a Master Lease
Agreement, dated as of December 11, 1997 as amended and restated on May 28, 1999
(as amended, the "Lease Agreement"; capitalized terms used herein shall have the
meanings assigned to such terms in the Lease Agreement unless otherwise defined
herein); and
WHEREAS, the parties hereto desire to amend the Lease Agreement in the
manner set forth herein.
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the Lessee and Lender hereby agree as follows:
1. Amendment to Lease Agreement. Effective as of the date this
Amendment is fully executed by the Lender and Lessee hereof, and subject to the
satisfaction of the Lessee of conditions as determined by Lender, the Lease
Agreement is hereby amended as follows:
(a) The paragraph entitled "Lease" is hereby deleted in its
entirety and the following is inserted in lieu thereof:
1. LEASE. 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. The timing and financial scope of
Lessor's obligation to enter into Leases hereunder are limited as set forth in
the Commitment Letters executed by Lessor and Lessee, dated as of October 2,
1997, April 14, 1999 and December 30, 1999 and attached hereto as Exhibit A,
Exhibit B and Exhibit C (collectively the "Commitment Letters").
2. Representations and Warranties of the Lessee. The Lessee
represents and warrants as follows:
(a). Since May 28, 1999, there has occurred no development, event
or change that has had or could reasonably be expected to have a Material
Adverse Effect.
(b). No Default or Event of Default has occurred and is
continuing.
1.
(c). The representations and warranties of such Lessee contained
in Section 26 of the Lease Agreement are true and correct in all material
respects on the date hereof as though made on and as of the date hereof, except
to the extent that such representation and warranties expressly relate solely to
an earlier date (in which case such representations and warranties were true and
correct on and as of such earlier date).
(d). This Amendment constitutes the legal, valid and binding
obligation of such Lessee, enforceable against the Lessee in accordance with its
terms, except as enforceability may be limited by bankruptcy, insolvency and
other laws affecting creditors' rights generally and by general principles of
equity.
3. Expenses. The Lessee shall pay for all of the reasonable costs
and expenses incurred by the Lender in connection with the transactions
contemplated by the Amendment, including, without limitation, the reasonable
fees and expenses of counsel to the Lender.
4. Miscellaneous.
(a). Except as expressly amended herein, all of the terms and
provisions of the Lease Agreement and the other Lease Documents are ratified and
confirmed in all respects and shall remain in full force and effect.
(b). Upon the effectiveness of the Amendment, all references in
the Lease Documents to the Lease Agreement shall mean the Lease Agreement as
amended by this Amendment and all references to the Lease Agreement to the "this
Agreement", "hereof", "herein", or similar terms, shall mean and refer to the
Lease Agreement as amended by this Amendment.
(c). The execution, delivery and effectiveness of this Amendment
shall not, except as expressly provided herein, operate as an amendment to or
waiver of any right, power or remedy of the Lender under any of the Lease
Documents, or constitute an amendment or waiver of any provision of any of the
Lease Documents.
(d). This Amendment may be executed by the parties hereto
individually or in combination, in one or more counterparts, each of which shall
be an original and all of which shall constitute one and the same agreement.
This Amendment may be executed and delivered by telecopier with the same force
and effect as if the same were a fully executed and delivered original manual
counterpart.
(e) This Amendment shall constitute a Lease Document.
5. Governing Law. THE VALIDITY, INTERPRETATION AND ENFORCEMENT OF
THIS AMENDMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF ILLINOIS WITHOUT
GIVING EFFECT TO THE CONFLICTS OF LAW PRINCIPLES THEREOF.
2.
Exhibit A to Second Amendment
See Exhibit A to Amended and Restated Master Lease Agreement
3.
Exhibit B to Second Amendment
See Exhibit B to Amended and Restated Master Lease Agreement
Exhibit C
[TRANSAMERICA BUSINESS CREDIT LETTERHEAD]
December 30, 1999
Xxxxxx Xxxxxxxxx
Chief Financial Officer
Dendreon Corporation
0000 Xxxxx Xxxxxx
Xxxxxxx, XX 00000
Dear Xxxxxx:
Transamerica Business Credit Corporation - Technology Finance Division
("Lessor") is pleased to offer this commitment (this "Commitment") to lease the
equipment described below to Dendreon Corporation ("Lessee"). Except with
respect to the transactions described in commitment letters dated as of October
2, 1997, April 14, 1999 and July 9, 1999 (collectively referred to as the "Prior
Commitments"), this Commitment supercedes all prior correspondence, proposals,
and oral or other communications relating to leasing arrangements between Lessor
and Lessee.
The outline of this offer is as follows:
Lessor: Transamerica Business Credit Corporation -Technology
Finance Division and/or its affiliates, successors or
assigns.
Lessee: Dendreon Corporation
Equipment Cost: Not to exceed $1,500,000 in the aggregate (in
addition to the Prior Commitments). The availability
under the Prior Commitments must be completely drawn-
down prior to any funding under this Commitment.
Equipment: Various laboratory, office equipment and computer
equipment and related soft costs (the "Equipment").
All Equipment subject to Lessor approval prior to
funding.
Location of Equipment: Seattle, WA
Availability and $1,000,000 will be available immediately upon the
Draw Down Expiration: closing of this transaction with the remaining
$500,000 available upon the closing of an additional
equity financing of not less than $8,000,000 or a
corporate agreement which provides no less than
$8,000,000 in "up-front" cash proceeds. No Leases
will be
funded after September 30, 2000.
Lease Term: Each Lease Term will commence upon delivery of the
equipment or upon each delivery of items of equipment
having an aggregate cost of not less than $50,000,
and will continue through 48 months from the first
day of the month next following or coincident with
commencement of that Lease Term.
Payment Terms: Month Rent equal to 2.52% of Equipment Cost will be
payable monthly in advance. The first month's rent
will be payable upon signing the lease.
Adjustment to The Lessor will increase or decrease the Monthly
Payment Terms Lease Payment as of the date of each Lease Term
Commencement proportionally to the change in the
weekly average of the interest rates of the four-year
U.S. Treasury Securities from the week ending
November 12, 1999 (5.87%) to the week preceding the
date of each Lease Term Commencement, as published in
the Wall Street Journal. As of the date of each Lease
Term Commencement, the Monthly Lease Payments will be
fixed for the term. A schedule of the actual Monthly
Lease Payments will be provided by the Lessor
following each Lease Term Commencement.
Purchase Options: The Lessee will have the option to purchase all (but
not less than all) the Equipment at the expiration of
the term of the lease for ten percent (10%) of
Equipment Cost, plus applicable sales and other
taxes.
Automatic Renewal: In the event the Lessee does not exercise the
Purchase Option described above, the lease will
automatically renew for a term of one year with
Monthly Rentals equal to 1.00% of Equipment Cost
payable monthly in advance. At the expiration of the
renewal period, the Lessee will have the option to
purchase all (but not less than all) the Equipment
for $1.00.
Interim Rent: Interim Rent will accrue from the date each Lease
Term commences until the next following first day of
a month (unless the Lease Term commences on the first
day of a month). Interim Rent will be calculated at
the daily equivalent of the currently adjusted
Monthly Rent.
Net Lease: The Leases will be net leases under which the Lessee
will be responsible for maintenance, insurance, taxes
and all other costs and expenses.
Taxes: Sales or use taxes will be added to the Equipment
Cost or
2.
collected on the gross rentals, as
appropriate.
Insurance: Prior to any delivery of equipment, the Lessee will
furnish confirmation of insurance acceptable to the
Lessor covering the Equipment including primary, all
risk, physical damage, property damage and bodily
injury with appropriate loss payee and additional
insured endorsements in favor of the Lessor.
Conditions Precedent 1. No material adverse change in the financial
to Each Lease Term condition, operation or prospects of the Lessee
Commencement: prior to funding. The Lessor reserves the right
to rescind any unused portion of its commitment
in the event of a material adverse change in the
financial condition, operation or prospects of
the Lessee.
2. Completion of the documentation and final terms
of the proposed financing satisfactory to Lessor
and Lessor's counsel.
3. Results of all due diligence, including lien,
judgment and tax searches and other matters
Lessor may reasonably request shall be
satisfactory to Lessor and Lessor's counsel.
4. Receipt by Lessor of duly executed Lease
documentation in form and substance satisfactory
to Lessor and its counsel.
5. Lessor shall receive title and a valid and
perfected first priority lien and security
interest in all Collateral acquired through the
use of this Commitment and Lessor shall have
received satisfactory evidence that there are no
liens on any Collateral except as expressly
permitted herein.
6. Satisfactory updated reference from Vulcan
Ventures.
Additional Covenants: There will be no actual or threatened conflict with,
or violation of, any regulatory statute standard or
rule relating to the Lessee, its present or future
operations, or the Collateral.
Lessee will be required to provide quarterly
financial information. All information supplied by
the Lessee will be correct and will not omit any
statement necessary to make the information supplied
not be misleading. There will be no material breach
of the representations and warranties of the Lessee
in the Loan.
Expenses: All costs and expenses incurred by the Lessor in
connection with the underwriting and closing of the
Leases will be paid by the Lessee whether or not any
Leases are consummated and funds are advanced by the
Lessor.
Law: This letter and the proposed Lease are intended to be
governed by and construed in accordance with Illinois
law without regard to its conflict of law provisions.
3.
Indemnity: Lessee agrees to indemnify and to hold harmless
Lessor, and its officers, directors and employees
against all claims, damages, liabilities and expenses
which may be incurred by or asserted against any such
person in connection with or arising out of this
letter and the transactions contemplated hereby,
other than claims, damages, liability, and expense
resulting from such person's gross negligence or
willful misconduct.
Confidentiality: This letter is delivered to you with the
understanding that neither it nor its substance shall
be disclosed publicly or privately to any third
person except those who are in confidential
relationship to you (such as your legal counsel and
accountants), or where the same is required by law
and then only on the basis that it not be further
disclosed, which conditions Lessee and its agents
agree to be bound by upon acceptance of this letter.
Without limiting the generality of the foregoing,
none of such persons shall use or refer to Lessor or
to any affiliate name in any disclosures made in
connection with any of the transactions without
Lessor's prior written consent.
Upon completion of the initial takedown by Lessor and
Lessee, the Lessee will no longer be required to
obtain Lessor's prior written consent to disclose the
transaction contemplated hereby. In addition, the
Lessee agrees to provide camera ready artwork of
typestyles and logos of the Lessee for use in
promotional material by the Lessor and Lessee, upon
request by of Lessor, agrees to issue a press release
relating to the proposed financing.
Conditions of This Commitment Letter is intended to be a summary of
Acceptance: the most important elements of the agreement to enter
into a leasing transaction with Lessee, and it is
subject to all requirements and conditions contained
in Lease documentation proposed by Lessor or its
counsel in the course of closing the Lease described
herein. Not every provision that imposes duties,
obligations, burdens, or limitations on Lessee is
contained herein, but shall be contained in the final
Lease documentation satisfactory to Lessor and its
counsel.
EACH OF THE PARTIES HERETO IRREVOCABLY AND
UNCONDITIONALLY WAIVES ALL RIGHT TO TRAIL BY JURY IN
ANY SUIT, ACTION, PROCEEDING OR COUNTERCLAIM ARISING
OUT OF OR RELATED TO THIS LETTER OR THE TRANSACITON
DESCRIBED IN
4.
THIS LETTER.
Application Fee: The $15,000 Application Fee previously paid by the
Borrower will be first applied to the reasonable
costs and expenses of the Lender in connection with
the transaction, and any remainder shall be applied
pro rata (based on the amount of each funding to the
total amount of this Commitment) to the second
month's payment due under the Loan.
Commitment Expiration: This Commitment shall expire on January 7, 2000
unless prior thereto either extended in writing by
the Lender or accepted as provided below by the
Borrower.
Should you have any questions, please call me. If you wish to accept this
Commitment, please so indicate by signing and returning the enclosed duplicate
copy of this letter to me by January 7, 2000.
Yours truly,
TRANSAMERICA BUSINESS CREDIT CORP -
TECHNOLOGY FINANCE DIVISION
By /s/ Xxxxxx X. Xxxxxxx
--------------------------------
Xxxxxx X. Xxxxxxx
Senior Vice President - Marketing
Accepted this 4/th/ day of January, 2000.
DENDREON CORPORATION
By /s/ Xxxxxx X. Xxxxxxxxx
-------------------------------
Chief Financial Officer
5.