EXHIBIT 10.40
LEASE RENEWAL AMENDMENT
1045179-001
THIS LEASE RENEWAL AMENDMENT dated as of July 1, 2003 ("Amendment")
amends Schedule No. SG02 ("Schedule") to the Master Lease Agreement dated as of
September 13, 1995 ("Agreement"), such Schedule and Agreement, as the same may
have been heretofore amended or otherwise modified, are hereinafter collectively
referred to as the ("Lease") between General Electric Capital Corporation
Successor In Interest to Comdisco, Inc. as of February 25, 2002 ("Lessor") and
La Jolla Pharmaceutical Company ("Lessee"). Capitalized terms not defined herein
shall have the meanings assigned to them in the Lease.
W I T N E S S E T H
WHEREAS, the term of the Lease is scheduled to expire on June 30, 2003
("Primary Term Expiration Date"); and
WHEREAS, Lessee desires to renew the Lease pursuant to the terms set
forth herein; and
WHEREAS, Lessor is willing to consent to such renewal pursuant to the
terms set forth herein;
NOW, THEREFORE, in consideration of the above premises and the mutual
promises contained herein, as well as other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto,
intending to be legally bound, agree as follows:
1. Commencing on July 1, 2003, the Lease shall be renewed for an
additional period of Twenty Four (24) months ("Renewed Term") on and
subject to the same terms and conditions as set forth in the Lease,
except as otherwise expressly provided herein:
(a) During the Renewed Term, Lessee hereby agrees to pay to Lessor
rent in the total principal sum One Hundred Eleven Thousand
and 00/100 Dollars ($111,000.00), with interest thereon, from
the date upon which the Renewed Term commences through and
including the last day of the Renewed Term, at a fixed
interest rate of Seven percent (7.0%), to be paid in Eight (8)
consecutive Quarterly installments of principal and interest
of Fourteen Thousand Seven Hundred Thirty Seven and 00/100
Dollars ($14,737.00) (each a "Periodic Installment") and a
final installment equal to the GPO Amount (as that term is
described below). The Periodic Installments have been
calculated on the basis of a 360 day year of twelve thirty-day
months. Each Periodic Installment may, at the option of the
Lessor, be calculated and applied on the assumption that such
installment would be made on its due date. The first Periodic
Installment shall be due and payable on July 1, 2003 and the
following Periodic Installments shall be payable on the same
day of each month thereafter throughout the Renewal Term.
(b) During the Renewed Term, the Stipulated Loss Value and
Termination Value of the Equipment as of the applicable
calculation date shall be equal to (i) the sum of (A) all then
remaining Periodic Installment payments (which would have come
due over the balance of the Renewed Term without any
termination thereof), and (B) the GPO Amount (set forth
hereinbelow), (ii) discounted to its then present value using
a discount rate equal to the one year U.S. Treasury Constant
Maturity rate in effect as of the date on which the Lease
either terminates or the Casualty occurs, as published in the
Federal Reserve Statistical Release H.15 (519). Furthermore,
in connection with any default or other termination of the
Lease prior to the scheduled expiration of the Renewed Term,
any surplus net proceeds received by Lessor from the sale,
re-lease or other disposition of the Equipment after
satisfaction of all amounts payable by Lessee under the Lease
shall be remitted to Lessee (except to the extent as may be
otherwise required by applicable law).
(c) Upon expiration of the Renewed Term, Lessee shall purchase for
cash consideration all (but not less than all) of the
Equipment for an amount equal to One and 00/100 Dollar ($1.00)
(the "GPO Amount"), plus all applicable sales, use and other
taxes thereon, ON AN "AS IS, WHERE IS" BASIS WITHOUT RECOURSE
TO, OR WARRANTY BY, LESSOR OF ANY KIND, NATURE OR DESCRIPTION
WHATSOEVER. All other purchase options or renewal options are
hereby deleted in their entirety.
(d) In order to secure payment and performance of Lessee's
obligations hereunder, Lessee hereby grants Lessor a security
interest in (i) the Equipment and in all goods that are or may
hereafter become accessions thereto, and (ii) all proceeds of
such property, including but not limited to insurance
proceeds.
(e) Any provisions of the Lease relating to Early Termination,
Purchase Option or Terminal Rent Adjustment Clause shall be
deleted in their entirety.
2. Lessee hereby represents and warrants that all of the representations
and warranties included in the Lease (except as set forth in Article XV
(b) of the Lease) are true and correct as of the date first above
written.
3. Except as expressly modified herein, all terms and provisions of the
Lease shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized representatives to execute and deliver this Amendment as of
the date first above written.
LESSOR: LESSEE:
GENERAL ELECTRIC CAPITAL LA JOLLA PHARMACEUTICAL COMPANY
CORPORATION SUCCESSOR IN
INTEREST TO COMDISCO INC.
AS OF FEBRUARY 25, 2002
By: /s/ Michael J. Fernand By: /s/ Gail A. Sloan
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Title: Collateral Specialist Title: Senior Director of Finance and Controller