Master Lease Agreement - Diversa Corp. and Transamerica Business Credit Corp.
April 13, 1999
Mr. Thomas A. Christenson
Director, Finance
Diversa Corporation
10665 Sorrento Valley Road
San Diego, CA 92121
Dear Thomas:
Transamerica Business Credit Corporation - Technology Finance Division ("TBCC")
is pleased to offer to extend the duration of those certain Commitment Letters
dated March 31, 1997 and April 7, 1998 (the "Commitments") as provided below.
Except as modified hereby, the Commitments and all documents in connection with
the Commitments and Master Lease Agreement between TBCC and Diversa Corporation
("Lessee"), are hereby ratified and confirmed in all respects and shall continue
in full force and effect.
1. The paragraph entitled "Lease Term Commencement" is hereby deleted in its
entirety and the following is inserted in lieu thereof:
Lease Term
Commencement: Upon delivery and acceptance of the Equipment or upon each
completion of deliveries and acceptances of items of Equipment with aggregate
cost of not less than $100,000, but no later than December 31, 1999.
Should you have any questions, please call me. If you wish to accept this
offer, please so indicate by signing and returning the enclosed duplicate copy
of this letter to me by April 20, 1999.
Yours truly,
TRANSAMERICA BUSINESS CREDIT
CORPORATION-TECHNOLOGY FINANCE
DIVISION
By: /s/ Gary P. Moro
------------------
Gary P. Moro
Vice President
Accepted this 15 day of April, 1999
DIVERSA CORPORATION
By: /s/ Thomas A. Christenson
-------------------------
Thomas A. Christenson
Director, Finance
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Amended and Restated
MASTER LEASE AGREEMENT
Lessor: TRANSAMERICA BUSINESS CREDIT CORPORATION
Riverway II
West Office Tower
9399 West Higgins Road
Rosemont, Illinois 60018
Lessee: DIVERSA CORPORATION (f/k/a Recombinant Biocatalysis, Inc.)
10655 Sorrento Valley Road
San Diego, California 92121
The lessor pursuant to this Master Lease Agreement ("Agreement") dated as of
April 4, 1997, as amended on April 29, 1998, 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. Except as
provided in the Commitment Letters dated as of March 31, 1997 and April 7, 1998,
Lessor has no obligation to enter into any additional leases with, or extend any
future financing to, Lessee.
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. Lessor's obligations to enter into Leases hereunder are
limited as set forth in Commitment Letters executed by Lessor and Lessee and
dated as of March 31, 1997 and April 7, 1998 (attached hereto as Exhibits A and
B), and any subsequent Commitment Letters executed by Lessor and Lessee which
specifically provide that the commitments therein are to be governed by this
Agreement (which shall be attached as Exhibits hereto). All leases entered into
pursuant to the Commitment Letters dated as of March 31, 1997 and April 7, 1998
shall be governed by this Master Lease Agreement.
2. TERM. Each Lease shall be effective and the term of each Lease ("Term") shall
commence on the commencement date which shall be upon delivery, acceptance and
funding and shall be specified in the applicable Schedule 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 after the delivery of the
Equipment to Lessee or upon completion of deliveries of items of such Equipment
with aggregate cost of not less than $100,000.
3. RENT. Lessee shall pay as rent to Lessor, for use of the Equipment during,
the Term, 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
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five days after the day on which it becomes payable, Lessee will pay on demand,
as a late charge, an amount equal to 2.5% 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. Any Commitment Fees previously paid by Lessee
shall be applied pro rata toward the second month's Rent under each Lease after
deducting expenses under Section 22.
4. LEASE NOT CANCELABLE; LESSEE'S OBLIGATIONS ABSOLUTE. No Lease may be canceled
or terminated except as expressly provided herein. Lessee's obligation 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 or receiving benefits under the warranty, 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. PURCHASE OBLIGATION. Subject to Paragraph 21, Lessee shall, 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 fair market
value of all Equipment leased pursuant to the Commitment Letters dated as of
March 31, 1997 and April 7, 1998 shall be 10% of the Equipment Cost as set forth
on the applicable Schedule. In any other case, unless the applicable Schedule
provides otherwise, the purchase price for such Equipment shall be its fair
market
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value as set forth in the applicable Schedule determined 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, or as
otherwise determined in the manner specified in the applicable Schedule. Lessor
and Lessee shall equally share the cost of any such appraisal. On the Purchase
Date, 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 and file a UCC-3 termination statement.
9. 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.
10. 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.
11. 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.
12. 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.
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13. RETURN OF EQUIPMENT. Except for Equipment that has suffered a Casualty Loss
(as defined in Paragraph 14 below) and is not required to be repaired pursuant
to Paragraph 14 below or Equipment purchased by Lessee pursuant to Paragraph 8
above, upon demand by Lessor pursuant to Paragraph 21 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 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. At any time with 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 as
reasonably requested with Lessor's remarketing of the Equipment. The provisions
of this Paragraph 13 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 13. 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.
14. 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 upon request 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 13 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
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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 Lessees 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 Lessee, 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.
15. TAXES. Lessee shall pay when due (subject to Lessee's right to contest in
good faith), 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 if resulting from
an act of Lessee 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 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
and proof of payment. Lessee shall timely prepare and rile all reports and
returns which are required to be made with respect to any obligation of Lessee
under this Paragraph 15. Lessee shall, to the extent permitted by law, cause all
billings 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 billings.
16. LESSOR'S PAYMENT. If Lessee fails to perform its obligations under Paragraph
14 or 15 above, or Paragraph 22 below, Lessor shall have the right to substitute
performance, in which case, Lessee shall immediately reimburse Lessor therefor.
17. 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, reasonable 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 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, except to the extent Lessee
incurs a loss as a direct result of such failure. 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.
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18. 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, agents,
consultants, contractors and other authorized persons; 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. A change of
the Lessee's name shall not constitute an assignment for purposes of this
Paragraph 18. 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.
19. 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
thereafter 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. Notwithstanding any assignment by Lessor, Lessor shall not be
relieved of its obligations under any Lease, but in no event shall Lessor be
liable for any act or omission of its assignee.
20. 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 in any material respect
any other provision under or in connection with a Lease or violates in any
material respect 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 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 if the unpaid amount involved exceeds
$250,000 in the aggregate, subject to Lessee's right to contest in good faith
any such obligations; (g) any judgment shall be rendered against any of the
Lease Parties which shall remain unpaid or
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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 all 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) provided
that Lessee shall have 10 business days to cure any default under this clause
(i);(j) any of the Lease Parties shall merge or consolidate with any other
entity or make any material adverse 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 which has a material
adverse effect on Lessee's 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.
21. REMEDIES. Upon the occurrence and continuation of an Event of Default for
ten days after notice of a payment Event of Default and for thirty days after
notice for all other Events of Default except for an Event of Default described
in Paragraph 20(e), 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 13 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 13 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 22 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 seven percent compounded interest; (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 discounted at seven
percent compounded interest; and (v) any indebtedness for Lessee's indemnity
under Paragraph 17 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
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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 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 here from 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.
22. LESSOR'S EXPENSE. Lessee shall pay Lessor on demand all its reasonable
expenses (including reasonable legal fees and expenses) incurred in connection
with the preparation, execution and delivery of this Agreement and any other
agreement and transaction contemplated hereby, which expenses shall not exceed
$6,000 without the written consent of Lessee, and all costs and expenses in
protecting and enforcing Lessor's rights and interests in each Lease and the
Equipment upon an Event of Default, 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.
23. 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, provided, however, that Lessee shall have the
right to recover damages from Lessor for any breach by Lessor of its obligations
under this Agreement. 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 21 above or which may
otherwise limit or modify any of Lessor's rights or remedies under Paragraph 21,
except that Lessee shall have the right to require Lessor to convey to Lessee,
without representation, warranty or recourse, all of Lessor's rights, title and
interest in and to the Equipment upon Lessor's receipt, following an Event of
Default and the exercise of Lessor's remedies, of the amounts specified in
Paragraph 21(f).
24. 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, 76 Batterson Park
Road, Farmington, Connecticut 06032, Attention: Assistant Vice President, Lease
Administration, with a copy to Lessor at Riverway II, West Office Tower, 9399
West Higgins Road, Rosemont, Illinois 60018, Attention: Legal Department, if to
Lessee, then to Diversa Corporation, 10665 Sorrento Valley Road, San Diego,
California 92121, Attention: Vice President and Chief Financial Officer 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.
8.
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25. 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 and will 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) to the
knowledge of the Lessee, 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.
26. 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 reasonably necessary.
27. 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 issued by Lessee.
28. 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.
29. 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.
9.
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30. 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.
31. 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.
32. 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 163 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 of which Lessee has prior
written notice and opportunity to comply, 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 and (ii) 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 unless
disputed in good faith by 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 the Rent earlier than anticipated pursuant
to this Agreement. The provisions of this Paragraph 32 shall survive the
termination of this Agreement.
33. GOVERNING LAW; SEVERABILITY. EACH LEASE SHALL BE GOVERNED BY THE LAWS OF THE
STATE OF ILLINOIS WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW PRINCIPLES
THEREOF. 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, THE SCHEDULES DELIVERED AND SIGNED
BY LESSEE AND LESSOR IN CONNECTION HEREWITH FROM TIME TO TIME AND LESSOR'S
WRITTEN COMMITMENT TO LESSEE IN EFFECT FROM TIME TO TIME, INCLUDING, WITHOUT
LIMITATION, THE COMMITMENT LETTERS DATED MARCH 31, 1997 AND APRIL 7,1998, ARE
THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT
10.
<PAGE>
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 Agreement to
be duly executed by their duly authorized officers as of this 29th day of April,
1988.
DIVERSA CORPORATION
By: /s/ Kathy Van Sleen
---------------
Name:
Title:
Federal Identification Number 22-3297375
TRANSAMERICA BUSINESS CREDIT
CORPORATION
By: /s/ Gary P. Moro
----------------
Name: Gary P. Moro
Title: Vice President
11.
<PAGE>
Exhibit A
March 31, 1997
Ms. Kathy Van Sleen
Vice President & Chief Financial Officer
Recombitant BioCatalysis, Inc.
10665 Sorrento Valley Road
San Diego, CA 92121
Dear Kathy:
Transamerica Business Credit Corporation - Technology Finance Division
("Lessor") is pleased to lease the Equipment described below to Recombitant
BioCatalysis, Inc. ("Lessee"). This Commitment supersedes all prior
correspondence, proposals, and oral or other communications relating to leasing
arrangements between Lessee and Lessor. The outline of this offer is as
follows:
Lessee: Recombitant BioCatalysis, Inc.
Lessor: Transamerica Business Credit Corporation - Technology Finance Division
and/or its affiliates, successors and assigns.
Guarantor: Not Applicable.
Equipment: Research and Development and other Equipment now owned or hereafter
acquired by Lessee, (all equipment subject to Lessor's approval prior to
funding), including, without limitation, all additions, improvements,
replacements, repairs, appurtenances, substitutions, and attachments thereto and
all proceeds (including insurance proceeds) thereof (the "Equipment").
Equipment Cost: Total not to exceed R2,500,000 including "soft costs" not to
exceed $375,000.00
Equipment Location: 10665 Sorrento Valley Road, San Diego, California 92121.
Anticipated Delivery: Through December 31, 1997.
Termination of Commitment: This commitment will terminate if the first delivery
of Equipment is not completed and funded on or before June 15, 1997. The final
delivery of Equipment shall not be later than March 31, 1998.
Lease Term Commencement: Upon delivery, acceptance and funding of the Equipment
or upon each completion of deliveries of items of Equipment with aggregate cost
of not less than $100,000, but in no event, shall any Equipment be delivered
later than March 31, 1998.
Term: From each Lease Term Commencement until 60 months from the first day of
the month next following or on the same date as the Lease Term Commencement if
that date is the first date of the month.
1.
<PAGE>
Lease Repayment Terms: Monthly Rent equal to 2.2595% of Equipment Cost shall be
payable monthly in advance, plus applicable sales and other taxes. The first and
last months rent shall be payable in advance. As of the date of each Lease Term
Commencement, the Monthly Rent Payments shall be fixed for the term.
The Lessor reserves the right to increase the Monthly Rent Payments as of the
date of each Lease Term Commencement commensurate to the increase in the weekly
average of the interest rates of five-year U.S. Treasury Securities from the
week ending February 7, 1997 to the week preceding the date of each Lease Term
Commencement, as published in the Wall Street Journal.
Interim Rent Payments: In the event that the Lease Term Commencement is not on
the first day of the month, Interim Rent Payments shall accrue from each Lease
Term Commencement until the next following first day of a month and shall be
payable at the end of that month. Interim Rent Payments shall be calculated at
the daily equivalent of the currently adjusted Monthly Payment.
Purchase Obligation: The Lessee shall purchase all (but not less than all) the
Equipment at the expiration of the term of each lease schedule for the then
current Fair Market Value of the Equipment, plus applicable sales and other
taxes.
It shall be agreed that the Fair Market Value will be 10% of Equipment Cost.
Documentation: The documentation relating to this transaction shall implement
the transaction contemplated by this commitment letter to the satisfaction of
Lessor and its counsel and Lessee and its counsel, shall be fully acceptable to
Lessor and its counsel and Lessee and its counsel, and shall contain conditions
precedent, representations, warranties and covenants by Lessee and shall provide
for events of defaults and remedies, all as required by Lessor for transactions
of this type and acceptable to Lessee. The documentation shall include, but not
be limited to, the terms and conditions described in this commitment letter.
Insurance: Prior to any delivery of Equipment, the Lessee shall furnish a
certificate of insurance acceptable to the Lessor in amount, type, and term
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.
Taxes: Sales or use taxes would be added to the Equipment Cost or collected on
the gross rentals, as appropriate.
Representations and Additional Covenants: There shall 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 Equipment.
All material information supplied by the Lessee shall be correct and shall not
omit any statement necessary to make the information supplied not be misleading.
There shall be no material breach of the representations and warranties of the
Lessee in the Lease. The representations shall include that the Equipment Cost
of each item of the Equipment does not exceed the fair and usual price for such
type of Equipment purchased in like quantity purchased by Lessee of such item
and reflects all discounts, rebates and allowances for the Equipment given to
Lessee by the
2.