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Exhibit 10.19
MASTER LEASE AGREEMENT
(QUASI)
DATED AS OF NOVEMBER 10, 2004 ("AGREEMENT")
THIS AGREEMENT is between General Electric Capital Corporation
(together with
its successors and assigns, if any, "Lessor") and Synta
Pharmaceuticals Corp.
("Lessee"). Lessor has an office at 83 WOOSTER HEIGHTS ROAD,
DANBURY, CT 06810.
Lessee is a corporation organized and existing under the laws of
state of
Delaware. Lessee's mailing address and chief place of business
is 45 HARTWELL
AVENUE, LEXINGTON, MA 02421. This Agreement contains the general
terms that
apply to the leasing of Equipment from Lessor to Lessee.
Additional terms that
apply the Equipment (term, rent, options, etc.) shall be
contained on a schedule
("Schedule").
1. LEASING:
(a) Lessor agrees to lease to Lessee, and Lessee agrees to lease
from Lessor,
the equipment and other property ("EQUIPMENT") described in any
Schedule signed
by both parties.
(b) Lessor shall purchase Equipment from the manufacturer or
supplier
("SUPPLIER") and lease it to Lessee if on or before the Last
Delivery Date
(specified in the Schedule) Lessor receives (i) a Schedule for
the Equipment,
(ii) evidence of insurance which complies with the requirements
of Section 8,
and (iii) such other documents as Lessor may reasonably request.
Each of the
documents required above must be in form and substance
satisfactory to Lessor.
Lessor hereby appoints Lessee its agent for inspection and
acceptance of the
Equipment from the Supplier. Once the Schedule is signed, the
Lessee may not
cancel the Schedule.
2. TERM, RENT AND PAYMENT:
(a) The rent payable for the Equipment and Lessee's right to use
the Equipment
shall begin on the earlier of (i) the date when the Lessee signs
the Schedule
and accepts the Equipment or (ii) when Lessee has accepted the
Equipment under a
Certificate of Acceptance ("LEASE COMMENCEMENT DATE"). The term
of this
Agreement shall be the period specified in the applicable
Schedule. The word
"term" shall include all basic and any renewal terms.
(b) Lessee shall pay rent to Lessor at its address stated above,
except as
otherwise directed by Lessor. Rent payments shall be in the
amount set forth in,
and due as stated in the applicable Schedule. If any Advance
Rent (as stated in
the Schedule) is payable, it shall be due when the Lessee signs
the Schedule.
Advance Rent shall be applied to the first rent payment. In no
event shall any
Advance Rent or any other rent payments be refunded to Lessee.
If rent is not
paid within ten (10) days of its due date, Lessee agrees to pay
a late charge of
five cents ($.05) per dollar on, and in addition to, the amount
of such rent but
not exceeding the lawful maximum, if any.
3. TAXES:
(a) If permitted by law, Lessee shall report and pay promptly
all taxes, fees
and assessments due, imposed, assessed or levied against Lessor
or Lessee on
account of any Equipment (or purchase, ownership, delivery,
leasing, possession,
use or operation thereof) by any
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governmental entity or taxing authority during or related to the
term of this
Agreement, including, without limitation, all license and
registration fees, and
all sales, use, personal property, excise, franchise, stamp or
other taxes,
imposts, duties and charges, together with any penalties, fines
or interest
thereon(collectively "TAXES"). Lessee shall have no liability
for Taxes imposed
by the United States of America or any State or political
subdivision thereof or
any foreign jurisdiction which are on or measured by the net
income of Lessor,
and any such Taxes are excluded from "Taxes" as such term is
used throughout
this Agreement. Lessee shall promptly reimburse Lessor (on an
after tax basis)
for any Taxes charged to or assessed against Lessor. Lessee
shall send Lessor a
copy of each report or return and evidence of Lessees payment of
Taxes upon
request.
(b) Lessee's obligations, and Lessor's rights and privileges,
contained in this
Section 3 shall survive the expiration or other termination of
this Agreement.
4. REPORTS:
(a) If any tax or other lien shall attach to any Equipment,
Lessee will notify
Lessor in writing, within ten (10) days after Lessee becomes
aware of the tax or
lien. The notice shall include the full particulars of the tax
or lien and the
location of such Equipment on the date of the notice.
(b) Lessee will deliver to Lessor financial statements as
follows: If Lessee is
a privately held company, then Lessee agrees to provide
quarterly financial
statements, certified by Lessee's president or chief financial
officer including
a balance sheet, statement of operations and cash flow statement
within 30 days
of each quarter end and its complete audited annual financial
statements,
certified by a reorganized firm of certified public accountants,
within 120 days
of fiscal year end or at such time as Lessee's Board of
Directors receives the
audit. If Lessee is a publicly held company, then Lessee agrees
to provide
quarterly unaudited statements and annual audited statements,
certified by a
recognized firm of certified public accountants, within 10 days
after the
statements are provided to the Securities and Exchange
Commission ("SEC") or
make such statements available on its website. All such
statements are to be
prepared using generally accepted accounting principles ("GAAP")
and, if Lessee
is a publicly held company, are to be in compliance with SEC
requirements.
(c) Lessor may inspect any Equipment during normal business
hours after giving
Lessee reasonable prior notice.
(d) Lessee will keep the Equipment at the Equipment Location
(specified in the
applicable Schedule) and will give Lessor prior written notice
of any relocation
of Equipment. If Lessor requests, Lessee will promptly notify
Lessor in writing
of the location of any Equipment.
(e) If any Equipment is lost or damaged (where the estimated
repair costs would
exceed the greater of ten percent (10%) of the original
Equipment cost or ten
thousand and 00/100 dollars ($10,000), or is otherwise involved
in an accident
causing personal injury or property damage, Lessee will promptly
and fully
report the event to Lessor in writing.
(f) If Lessor requests, Lessee will furnish a certificate of an
authorized
officer of Lessee stating that he has reviewed the activities of
Lessees and
that, to the best of his knowledge, there
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exists no default or event which with notice or lapse of time
(or both) would
become such a default within thirty (30) days after any request
by Lessor.
(g) Lessee will promptly notify Lessor of any change in Lessee's
state of
incorporation or organization.
5. DELIVERY, USE AND OPERATION:
(a) All Equipment shall be shipped directly from the Supplier to
Lessee.
(b) Lessee agrees that the Equipment will be used by Lessee
solely in the
conduct of its business and in a manner complying with all
applicable laws,
regulations and insurance policies.
(c) Lessee will not move any equipment from its leased or owned
locations
("LOCATION"), except for purposes of repair, refurbishment or
maintenance, and
Lessee will not move any piece of Equipment with an original
equipment value of
$25,000 or more from one Location to another Location without
written
notification to Lessor.
(d) Lessee will keep the Equipment free and clear of all liens
and encumbrances
other than those which result from acts of Lessor.
(e) Lessor shall not disturb Lessees quiet enjoyment of the
Equipment during
the term of the Agreement unless a default has occurred and is
continuing under
this Agreement.
6. MAINTENANCE:
(a) Lessee will, at its sole expense, maintain each unit of
Equipment in good
operating order and repair, normal wear and tear excepted. The
Lessee shall also
maintain the Equipment in accordance with manufacturers
recommendations. Lessee
shall make all alterations or modifications required to comply
with any
applicable law, rule or regulation during the term of this
Agreement. If Lessor
requests, Lessee shall affix plates, tags or other identifying
labels showing
ownership thereof by Lessee and Lessor's security interest
therein. The tags or
labels shall be placed in a prominent position on each unit of
Equipment.
(b) Lessee will not attach or install anything on the Equipment
that will
impair the originally intended function or use of such Equipment
without the
prior written consent of Lessor, which consent may not be
withheld, conditioned
or delayed unreasonably. All additions, parts, supplies,
accessories, and
equipment ("ADDITIONS") furnished or attached to any Equipment
that are not
readily removable shall become subject to the lien or Lessor.
All Additions
shall be made only in compliance with applicable law. Lessee
will not attach or
install any Equipment to or in any other personal or real
property without the
prior written consent of Lessor, which consent may not be
withheld, conditioned
or delayed unreasonably.
7. STIPULATED LOSS VALUE: If for any reason any unit of
Equipment becomes
lost, stolen, destroyed, irreparably damages or unusable
("CASUALTY
OCCURRENCES") Lessee shall promptly and fully notify Lessor in
writing. Lessee
shall pay Lessor the sum of (i) the Stipulated Loss Value (see
Schedule) of the
affected unit determined as of the rent payment date prior to
the casualty
Occurrence; and (ii) all rent and other amounts which are then
due under this
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Agreement on the Payment Date (defined below) for the affected
unit. The Payment
Date shall be the next rent payment after the Casualty
Occurrence. Upon payment
of all sums due hereunder, the term of this lease as to such
unit shall
terminate.
8. INSURANCE:
(a) Lessee shall bear the entire risk of any loss, theft, damage
to, or
destruction of, any unit of Equipment from any cause whatsoever
from the time
the Equipment is delivered to Lessee and installed (if
applicable).
(b) Lessee agrees, at its own expense, to keep all Equipment
insured for such
amounts and against such hazards as Lessor may reasonably
require. All such
policies shall be with companies, and on terms, reasonably
satisfactory to
Lessor. The insurance shall include coverage for damage to or
loss of Equipment,
liability for personal injuries, death or property damage.
Lessor shall be named
as additional insured with a loss payable clause in favor of
Lessor, as its
interest may appear, irrespective of any breach of warranty or
other act or
omission of Lessee. The insurance shall provide for liability
coverage in any
amount equal to at least ONE MILLION U.S. DOLLARS
($1,000,000.00) total
liability per occurrence, unless otherwise stated in any
Schedule. The
casualty/property damage coverage shall be in an amount equal to
the higher of
the Stipulated Loss Value or the full replacement cost of the
Equipment. No
insurance shall be subject to any co-insurance clause. The
insurance policies
shall provide that the insurance may not be altered or canceled
by the insurer
until after thirty (30) days written notice to Lessor. Lessee
agrees to deliver
to Lessor evidence of insurance reasonable satisfactory to
Lessor.
(c) Lessee hereby appoints to Lessor as Lessee's
attorney-in-fact to make proof
of loss and claim for insurance, and to make adjustments with
insurers and to
receive payment of an execute or endorse all documents, checks
or drafts in
connection with insurance payments. Lessor shall not act a
Lessees
attorney-in-fact unless Lessee is in default. Lessee shall pay
any reasonable
expenses if Lessor in adjusting or collecting insurance. Lessee
will not make
adjustments with insurers except with respect to claims for
damage to any unit
of Equipment where the repair costs are less than the lesser of
ten percent
(10%) of the original Equipment cost or ten thousand and 00/100
dollars
($10,000). Lessor may, at its option, apply proceeds of
insurance, in whole or
in part, to (i) repair or replace Equipment or any portion
thereof, or (ii)
satisfy any obligation of Lessee to Lessor under this
Agreement.
9. RETURN OF EQUIPMENT:
(a) At the expiration or termination of this Agreement or any
Schedule, Lessee
shall perform any testing and repairs required to place the
units of Equipment
in the same condition and appearance as when received by Lessee
(reasonable wear
and tear excepted) and in good working order for the original
intended purpose
of the Equipment. If required the units of Equipment shall be
deinstalled,
disassembled and crated by an authorized manufacturer's
representative or such
other service person as is reasonably satisfactory to Lessor.
Lessee shall
remove installed markings that are not necessary for the
operation, maintenance
or repair of the Equipment. All Equipment will be cleaned,
cosmetically
acceptable, and in such condition as to be immediately installed
into use in a
similar environment for which the Equipment was
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originally intended to be used. All waste material and fluid
must be removed
from the Equipment and disposed of in accordance with then
current waste
disposal laws. Lessee shall return the units of Equipment to a
location within
the continental United States as Lessor shall direct. Lessee
shall obtain and
pay for a policy of transit insurance for the redelivery period
in an amount
equal to the replacement value of the Equipment. The transit
insurance must name
Lessor as the loss payee. The Lessee shall pay for all costs to
comply with this
section (a).
(b) Until Lessee has fully complied with the requirements of
Section 9(a)
above, Lessee's rent payment obligation and all other
obligations under this
Agreement shall continue from month to month notwithstanding any
expiration or
termination of the lease term. Lessor may not terminate the
Lessee's right to
use Equipment, unless Lessee is in default.
(c) Lessee shall provide to Lessor a detailed inventory of all
components of
the Equipment including model and serial numbers. Lessee shall
also provide an
up-to-date copy of all other documentation pertaining to the
Equipment. All
service manuals, blueprints, process flow diagrams, operating
manuals, inventory
and maintenance records shall be given to Lessor at least ninety
(90) days and
not more than one hundred twenty (120) days prior to lease
termination.
(d) Lessee shall make the Equipment available for on-site
operational
inspections by potential purchasers at least one hundred twenty
(120) days prior
to and continuing up to lease termination. Lessor shall provide
Lessee with
reasonable notice prior to any inspection. Lessee shall provide
personnel, power
and other requirements necessary to demonstrate electrical,
hydraulic and
mechanical systems for each item of Equipment.
10. DEFAULT AND REMEDIES:
(a) Lessor may in writing declare this Agreement in default if:
(i) Lessee
breaches its obligation to pay rent or any other sum when due
and fails to cure
the breach within ten (10) days; (ii) Lessee breaches any of its
insurance
obligations under Section 9; (iii) Lessee breaches any of its
other obligations
and fails to cure that breach within thirty (30) days after
written notice from
Lessor; (iv) any representation or warranty made by Lessee in
connection with
this Agreement shall be false or misleading in any material
respect; (v) Lessee
or any guarantor or other obligor for the Lessee's obligations
hereunder
("GUARANTOR") becomes insolvent or ceases to do business as a
going concern;
(vi) any Equipment is illegally used; (vii) if Lessee or any
Guarantor is a
natural person, any death or incompetency of Lessee or such
Guarantor; (viii) a
petition is filed by or against Lessee or any Guarantor under
any bankruptcy or
insolvency laws and in the event of an involuntary petition, the
petition is not
dismissed, within forty-five (45) days of the filing date; (ix)
Lessee default
under any other material obligation for (A) borrowed money, (B)
the deferred
purchase price of property, or (C) payments due under the lease
agreement; (x)
there is any dissolution, termination or existence, merger,
consolidation or
change in controlling ownership or Lessee or any Guarantor, but
not to include
an initial public offering, or any other stock offering,
preferred to common, in
which the primary purpose is to raise cash equity; or (xi) there
is a material
adverse change in the Lessee's financial condition. The default
declaration
shall apply to all Schedules unless specifically excepted by
Lessor.
(b) After a default, at the request of Lessor, Lessee shall
comply with the
provisions of Section 9(a) and the following provisions shall
apply also. Lessee
hereby authorizes Lessor to
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peacefully enter any premises where any Equipment may be and
take possession of
the Equipment. Lessee shall immediately pay to Lessor without
further demand as
liquidated damages for loss of a bargain and not as a penalty,
the Stipulated
Loss Value of the Equipment (calculated as of the rent payment
date prior to the
declaration of default), and all rents and other sums then due
under this
Agreement and all Schedules. Lessor may terminate this Agreement
as to any or
all of the Equipment. A termination shall occur only upon
written notice by
Lessor to Lessee and only as to the units of Equipment specified
in any such
notice. Lessor may, but shall not be required to, sell Equipment
at private or
public sale, in bulk or in parcels, with or without notice, and
without having
the Equipment present at the place of sale. Lessor may also, but
shall not be
required to, lease, otherwise dispose of or keep idle all or
part of the
Equipment. Lessor may use Lessee's premises for a reasonable
period of time for
any or all of the purposes stated above without liability for
rent, costs,
damages or otherwise. The proceeds of sale, lease or other
disposition, if any,
shall be applied in the following order of priorities: (i) to
pay all of
Lessor's costs, charges and expenses incurred in taking,
removing, holding,
repairing and selling, leasing or otherwise disposing of
Equipment; then (ii) to
the extent not previously paid by Lessee, to pay Lessor all sums
due from Lessee
under this Agreement; then (iii) to reimburse to Lessee any sums
previously paid
by Lessee as liquidated damages; and then (iv) to Lessee, if
there exists any
surplus. Lessee shall immediately pay any deficiency in (i) and
(ii) above.
(c) The foregoing remedies are cumulative, and any or all
thereof may be
exercised instead of or in addition to each other or any
remedies at law, in
equity, or under statute. Lessee waives notice of sale or other
disposition (and
the time and place thereof), and the manner and place of any
advertising. Lessee
shall pay Lessor's actual attorney's fees incurred in connection
with the
enforcement, assertion, defense or preservation of Lessor's
rights and remedies
under this Agreement, or if prohibited by law, such lesser sum
as may be
permitted. Waiver of any default shall not be a waiver of any
other or
subsequent default.
(d) Any default under the terms of this or any other agreement
between Lessor
and Lessee may be declared by Lessor a default under this and
any such other
agreement.
11. ASSIGNMENT: LESSEE SHALL NOT SELL, TRANSFER, ASSIGN,
ENCUMBER OR SUBLET ANY
EQUIPMENT OR THE INTEREST OF LESSEE IN THE EQUIPMENT WITHOUT THE
PRIOR WRITTEN
CONSENT OF LESSOR. Lessor may, without the consent of Lessee,
assign this
Agreement, any Schedule or the right to enter into a Schedule.
Lessee agrees
that is Lessee receives written notice of an assignment from
Lessor, Lessee will
pay all rent and all other amounts payable under any assigned
Schedule to such
assignee or as instructed by Lessor. Lessee also agrees to
confirm in writing
receipt of the notice of assignment as may be reasonably
requested by assignee.
Lessee hereby waives and agrees not to assert against any such
assignee any
defense, set-off, recoupment claim or counterclaim which Lessee
has or may at
any time have against Lessor for any reason whatsoever.
12. NET LEASE: Lessee is unconditionally obligated to pay all
rent and other
amounts due for the entire lease term no matter what happens,
even if the
Equipment is damaged or destroyed, if it is defective or if
Lessee no longer can
use it. Lessee is not entitled to reduce or set-off against rent
or other
amounts due to Lessor or to anyone to whom Lessor assigns this
Agreement or any
Schedule whether Lessees claim arises out of this Agreement, any
Schedule, any
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statement by Lessor, Lessor's liability of any manufacturers
liability, strict
liability, negligence or otherwise.
13. INDEMNIFICATION:
(a) Lessee hereby agrees to indemnify Lessor, its agents,
employees, successors
and assigns (on an after tax basis) from and against any and all
losses,
damages, penalties, injuries, claims, actions and suits,
including legal
expenses, of whatsoever kind and nature arising out of or
relating to the
Equipment or this Agreement, except to the extent the losses,
damages,
penalties, injuries, claims, actions, suits or expenses result
from Lessor's
gross negligence or willful misconduct ("CLAIMS"). This
indemnity shall include,
but is not limited to, Lessor's strict liability in tort and
Claims, arising out
of (i) the selection, manufacture, purchase,
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