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Exhibit 10.21
MASTER EQUIPMENT LEASE
Under this Master Equipment Lease (the "Lease"), dated as of October 3, 1994,
Phoenix Leasing Incorporated ("Lessor") hereby leases to LeukoSite, Inc.
("Lessee"), and Lessee hereby leases from Lessor, the equipment (herein called
"Equipment") which is described on the schedule attached hereto or any
subsequently-executed schedule entered into by Lessor and Lessee and which
incorporates this Lease by reference. Any such schedules shall hereinafter
individually be referred to as a "Schedule" and collectively be referred to as
the "Schedules." Lessor hereby leases the Equipment to Lessee upon the following
terms and conditions:
1. TERM OF AGREEMENT. The term of this Lease begins on the date set forth above
and shall continue thereafter and be in effect so long as and at any time any
Schedule entered into pursuant to this Lease is in effect. The Initial Term and
rent payable with respect to each leased item of Equipment shall be as set forth
in and as stated in the respective Schedule(s). The terms of each Schedule
hereto are subject to all conditions and provisions of this Lease as may at any
time be amended. Each Schedule shall constitute separate and independent lease
and contractual obligation of Lessee and shall incorporate the terms and
conditions of this Master Equipment Lease and any additional provisions
contained in such Schedule. In the event of a conflict between the terms and
conditions of this Lease and any additional provisions of such Schedule, the
additional provisions of such Schedule shall prevail with respect to such
Schedule only.
2. NON-CANCELLABLE LEASE. This Lease and any Schedule cannot be cancelled or
terminated except as expressly provided herein. This Lease (including all
Schedules to this Lease) constitutes a net lease and Lessee agrees that its
obligations to pay all rent and other sums payable hereunder (and under any
Schedule) and the rights of Lessor and assignee in and to such rent and other
sums, are absolute and unconditional and are not subject to any abatement,
reduction, setoff, defense, counterclaim or recoupment due or alleged to be due
to, or by reason of, any past, present or future claims which Lessee may have
against Lessor, any assignee, the manufacturer or seller of the Equipment, or
against any person for any reason whatsoever.
3. LESSOR COMMITMENT. So long as no Event of Default or event which with the
giving of notice or passage of time, or both, could become an Event of Default
has occurred or is continuing, Lessor agrees to lease to Lessee the groups of
Equipment described on each Schedule, subject to
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the following conditions all of which shall be reasonably satisfactory to
Lessor: (i) that in no event shall Lessor be obligated to lease Equipment to
Lessee hereunder where the aggregate purchase price of all Equipment leased to
Lessee hereunder would exceed $750,000, of which not MORE than $30,000 shall be
for the purchase of furniture and not more than $25,000 shall be for the
purchase of built-in desks and shelving; (ii) the amount of Equipment purchased
by Lessor at any one time shall be at least equal to $50,000 except for a final
advance which may be less than $50,000; (iii) Lessor shall not be obligated to
purchase Equipment hereunder after June 30, 1995 provided, however, Lessor will
purchase equipment thereafter, but not after December 31, 1995, if Lessee has
complied with Section (3)(viii) below and Lessee delivers to Lessor in June 1995
projections of cash flow forecast, profit and loss projections and balance sheet
projections for each month from June 1995 to June 1996, in form and substance
acceptable to Lessor; (iv) all Lease documentation required by Lessor has been
executed by Lessee or provided by Lessee no later than October 3, 1994; (v) the
equipment described on the Schedule is acceptable to Lessor; (vi) with respect
to each funding Lessee has provided to Lessor each of the closing documents and
other items described in Exhibit A hereto (which documents shall be in form and
substance acceptable to Lessor) and which list may be modified for each
subsequent funding; (vii) there is no material adverse change in Lessee's
condition, financial or otherwise, as determined by Lessor, and Lessee so
certifies, from (yy) the date of the most recent financial statements delivered
by Lessee to Lessor prior to execution of this Lease, to (zz) the date of the
proposed lease of the Equipment; (viii) Lessee is performing according to its
business plan consisting of a one page Monthly Cash Flow Forecast dated March 5,
a one page Monthly P&L '94 -'95 Projection, dated April 5 and a one page
Monthly Balance Sheets '94 -'95 Projection dated 5/5 ("Business Plan"), as may
be amended from time to time in form and substance acceptable to Lessor; (ix)
Lessor or its agent has inspected and placed identification labels on the
Equipment; (x) Lessee shall offer to Lessor, on an exclusive basis, all lease
transactions for Equipment contemplated by Lessee during the commitment period
of this Lease; however if Lessor declines to finance any such transaction or
Lessee and Lessor cannot agree upon terms, then Lessee shall be free to seek
such financing from any other third party; and (xi) Lessor has received in form
and substance acceptable to Lessor: (a) Lessee's interim financial statements
signed by a financial officer of Lessee; (b) evidence of Lessee's receipt of
$2,000,000 equity after September 1, 1994; and (c) evidence of Lessee's
$5,640,000 cash position as of June 30, 1994.
4. NO WARRANTIES BY LESSOR. (a) Lessee has selected both (i) the Equipment and
(ii) the suppliers (herein called "Vendor") from whom
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Lessor is to purchase the Equipment. LESSOR MAKES NO WARRANTY EXPRESS OR IMPLIED
AS TO ANY MATTER WHATSOEVER, INCLUDING THE CONDITION OF THE EQUIPMENT, ITS
MERCHANTABILITY OR ITS FITNESS FOR ANY PARTICULAR PURPOSE, AND AS TO LESSOR,
LESSEE LEASES THE EQUIPMENT "AS IS" AND WITH ALL FAULTS. (b) If the Equipment is
not properly installed, does not operate as represented or warranted by Vendor
or is unsatisfactory for any reason, Lessee shall make any claim on account
thereof solely against Vendor and shall, nevertheless, pay Lessor all rent
payable under this Lease, Lessee hereby waiving any such claims as against
Lessor. Lessor hereby agrees to assign to Lessee solely for the purpose of
making and prosecuting any said claim, to the extent assignable, all of the
rights which Lessor has against Vendor for breach of warranty or other
representation respecting the Equipment. Lessor shall have no responsibility for
delay or failure to FILL the order. (c) Lessee understands and agrees that
neither the Vendor nor any salesman or other agent of the Vendor is an agent of
Lessor. No salesman or agent of Vendor is authorized to waive or alter any term
or condition of this Lease, and no representations as to the Equipment or any
other matter by the Vendor shall in any way affect Lessee's duty to pay the rent
and perform its other obligations as set forth in this Lease. (d) Lessee hereby
requests Lessor to purchase Equipment from Vendor and to lease Equipment to
Lessee on the terms and conditions of the Lease set forth herein. (e) Lessee
hereby authorizes Lessor to insert in this Lease and each Schedule hereto the
serial numbers and other identification data of the Equipment when determined by
Lessor.
5. LESSEE'S REPRESENTATIONS AND WARRANTIES. Lessee represents and warrants that
(a) it is a corporation in good standing under the laws of the state of its
incorporation, and duly qualified to do business in each state where the
Equipment will be located; (b) it has full authority to execute and deliver this
Lease and perform the terms hereof, and this Lease has been duly authorized and
constitutes valid and binding obligations of Lessee enforceable in accordance
with its terms; (c) this Lease will not contravene any law, regulation or
judgment affecting Lessee or result in any breach of any agreement or other
instrument binding on Lessee; (d) no consent of Lessee's shareholders or holder
of any indebtedness, or filing with, or approval of, any governmental agency or
commission, is a condition to the performance of the terms hereof; (e) there is
no action or proceeding pending or threatened against Lessee before any court or
administrative agency which might have a materially adverse effect on the
business, financial condition or operations of Lessee; (f) no deed of trust,
mortgage or third party interest arising through Lessee will attach to the
Equipment or the Lease; (g) the Equipment will
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remain at all times under applicable law, removable personal property, free and
clear of any lien or encumbrance in favor of Lessee or any other person,
notwithstanding the manner in which the Equipment may be attached to any real
property; (h) all credit, financial and any other information submitted to
Lessor herewith or any other time is true and correct; and (i) Lessee has
provided, or will provide if requested, Lessee's tax identification number.
6. EQUIPMENT ORDERING. Lessee shall be responsible for all packing, rigging,
transportation and installation charges for the Equipment and Lessor may
separately invoice Lessee for such charges. Lessee has selected the Equipment
itself and shall arrange for delivery of Equipment so that it can be accepted in
accordance with Section 7 hereof. Lessee hereby agrees to indemnify and hold
Lessor harmless from any claims, liabilities, costs and expenses, including
reasonable attorneys' fees, incurred by Lessor arising out of any purchase
orders or assignments executed by Lessor with respect to any Equipment or
services relating thereto.
7. LESSEE ACCEPTANCE. Lessee shall return to Lessor the signed and dated
Acceptance Notice attached to each Schedule hereto (a) acknowledging the
Equipment has been received, installed and is ready for use and (b) accepting it
as satisfactory in all respects for the purposes of this Lease. Lessor is
authorized to fill in the Rent Start Date on each Schedule in accordance with
the foregoing.
8. LOCATION; INSPECTION; LABELS. Equipment shall be delivered to and shall not
be removed from the Equipment "Location" shown on each Schedule without Lessor's
prior written consent. Lessor shall have the right to inspect Equipment at any
reasonable time. Lessee shall be responsible for all labor, material and freight
charges incurred in connection with any removal or relocation of such Equipment
which is requested by the Lessee and consented to by Lessor, as well as for any
charges due to the installation or moving of the Equipment. The rental payments
shall continue during any period in which the Equipment is in transit during a
relocation. Lessor or its agent shall xxxx and label Equipment, which labels
shall state Equipment is owned by Lessor, and Lessee shall keep such labels on
the Equipment as labeled by Lessor or its agent.
9. EQUIPMENT MAINTENANCE. (a) General. Lessee will locate or base each item of
Equipment where designated in an Acceptance Notice and will reasonably permit
Lessor to inspect such item of Equipment and its maintenance records. Lessee
will at its sole expense comply with
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applicable laws, rules, regulations, requirements and orders with respect to
use, maintenance, repair, condition, storage and operation of each item of
Equipment. Except as required herein, Lessee will not make any addition or
improvement to any item of Equipment that is not readily removable without
causing material damage to any item or impairing its original value or utility.
Any addition or improvement that is so required or cannot be so removed will
immediately become the property of Lessor. (b) Service and Repair. With respect
to computer equipment, Lessee has entered into, and will maintain in effect,
Vendor's standard maintenance contract or another contract satisfactory to
Lessor for a period equal to the term of each Schedule and extensions thereto
which provides for the maintenance of the Equipment and repairs and replacement
parts thereof in good condition and working order, all in accordance with the
terms of such maintenance contract. Lessee shall have the Equipment certified
for the Vendor's standard maintenance agreement prior to delivery to Lessor upon
expiration of this Lease. With respect to any other Equipment, Lessee will, at
its sole expense, maintain and service, and repair any damage to, each item of
Equipment in a manner consistent with prudent industry practice and Lessee's own
practice so that such item of Equipment is at all times (i) in the same
condition as when delivered to Lessee, except for ordinary wear and tear, (ii)
in good operating order for the function intended by its manufacturer's
warranties and recommendations.
10. LOSS OR DAMAGE. Lessee assumes the entire risk of loss to the Equipment
through use, operation or otherwise. Lessee hereby indemnifies and holds
harmless Lessor from and against all claims, loss of rental payments, costs,
damages, and expenses relating to or resulting from any loss, damage or
destruction of the Equipment, any such occurrence being hereinafter called a
"Casualty Occurrence." On the first rental payment date following such Casualty
Occurrence, or, if there is no such rental payment date, thirty (30) days after
such Casualty Occurrence, Lessee shall (i) repair the Equipment, returning it to
good operating condition or (ii) replace the Equipment with identical equipment
in good condition and repair, the title to which shall vest in Lessor and which
thereafter shall be subject to the terms of this Lease; or (iii) pay to Lessor
(a) any unpaid amounts relating to such Equipment due Lessor under this Lease up
to the date of the Casualty Occurrence, and (b) a sum equal to the Casualty
Value as set forth in the Casualty Value table attached to each Schedule hereto
for such Equipment. Upon the making of such payment, the term of this Lease as
to each unit of Equipment with respect to which the Casualty Value was paid
shall terminate.
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11. GENERAL INDEMNITY. Lessee will protect, indemnify and save harmless Lessor
from and against all liabilities, obligations, claims, damages, penalties,
causes of action, costs and expenses, imposed upon or incurred by or asserted
against Lessor or any assignee of Lessor by Lessee or any third party by reason
of the occurrence or existence (or alleged occurrence or existence) of any act
or event relating to or caused by the Equipment, including but not limited to,
consequential or special damages of any kind, or any failure on the part of
Lessee to perform or comply with any of the terms of this Lease. In the event
that any action, suit or proceeding is brought against Lessor by reason of any
such occurrence, Lessee, upon request of Lessor, will at Lessee's expense resist
and defend such action, suit or proceeding or cause the same to be resisted and
defended by counsel designated and approved by Lessor. Lessee's obligations
under this Section 11 shall survive the expiration of this Lease with respect
to acts or events occurring or alleged to have occurred prior to the return of
the Equipment to Lessor at the end of the Lease term.
12. INSURANCE. Lessee at its expense shall keep the Equipment insured for the
entire term and any extensions of this Lease against all risks for the value of
the Equipment and in no event for less than the Casualty Value of such Equipment
as specified on Exhibit C. Such insurance shall contain insurer's agreement to
give thirty (30) days written notice to Lessor before cancellation or material
change of any policy of insurance, and shall provide for (a) loss payable
endorsement to Lessor or any assignee of Lessor, and (b) public liability and
property damage insurance in an amount not less than $3,000,000, naming Lessor
as additional insured. Lessee will provide Lessor and any assignee of Lessor
with a certificate of insurance from the insurer evidencing Lessor's or such
assignee's interest in the policy of insurance. Such insurance shall cover any
Casualty Occurrence to any unit of Equipment. Notwithstanding anything in
Section 10 or this Section 12 to the contrary, this Lease and Lessee's
obligations hereunder and under each Schedule shall remain in full force and
effect with respect to any unit of Equipment which is not subject to a Casualty
Occurrence. If Lessee fails to provide or maintain insurance as required herein,
Lessor shall have the right, but shall not be obligated to obtain such
insurance. In that event, Lessee shall pay to Lessor the cost thereof.
13. TAXES. Lessee agrees to reimburse Lessor for, (or pay directly if instructed
by Lessor), and agrees to indemnify and hold Lessor harmless from, all fees
(including, but not limited to, license, documentation, recording and
registration fees), and all sales, use, gross receipts, personal property,
occupational, value added or other taxes, levies, imposts, duties, assessments,
charges, or withholdings of any nature whatsoever, together
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with any penalties, fines, additions to tax, or interest thereon (all of the
foregoing being hereafter referred to as "Impositions") except same as may be
attributable to Lessor's income, arising at any time prior to or during the term
of this Lease, or upon termination or early termination of this Lease and levied
or imposed upon Lessor directly or otherwise by any Federal, state or local
government in the United States or by any foreign country or foreign or
international taxing authority upon or with respect to (i) the Equipment, (ii)
the exportation, importation, registration, purchase, ownership, delivery,
leasing, possession, use, operation, storage, maintenance, repair, return, sale,
transfer of title, or other disposition thereof, (iii) the rentals, receipts, or
earnings arising from the Equipment, or any disposition of the rights to such
rentals, receipts, or earnings, (iv) any payment pursuant to this Lease, and (v)
this Lease or the transaction or any part thereof. Lessee's obligations under
this Section 13 shall survive the expiration of this Lease with respect to acts
or events occurring or alleged to have occurred prior to the return of the
Equipment to Lessor at the end of the Lease term.
14. PAYMENT BY LESSOR. If Lessee shall fail to make any payment or perform any
act required hereunder, then Lessor may, but shall not be required to, after
such notice to Lessee as is reasonable under the circumstances, make such
payment or perform such act with the same effect as if made or performed by
Lessee. Lessee will upon demand reimburse Lessor for all sums paid and all costs
and expenses incurred in connection with the performance of any such act.
15. SURRENDER OF EQUIPMENT. Upon termination or expiration of this Lease, with
respect to each group of Equipment, Lessee will forthwith surrender the
Equipment to Lessor delivered in as good order and condition as originally
delivered, reasonable wear and tear excepted. Lessor may, at its sole option,
arrange for removal and transportation of the Equipment provided that Lessee's
obligations under Sections 10, 11 and 12 shall not be released. Lessee shall
bear all expenses of returning (which include, but are not limited to, the
de-installation, insurance, packaging and transportation of) the Equipment to
Lessor's location or other location within the United States as Lessor may
request. In the-event Lessee fails to return the Equipment as directed above,
all obligations of Lessee under this Lease, including rental payments, shall
remain in full force and effect until Lessee returns the Equipment to Lessor.
16. ASSIGNMENT. WITHOUT LESSOR'S PRIOR WRITTEN CONSENT WHICH LESSOR SHALL NOT
UNREASONABLY WITHHOLD, LESSEE SHALL NOT (a) ASSIGN, TRANSFER,
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PLEDGE, HYPOTHECATE OR OTHERWISE DISPOSE OF THIS LEASE, EQUIPMENT, OR ANY
INTEREST THEREIN, OR (b) SUBLET OR LEND EQUIPMENT OR PERMIT IT TO BE USED BY
ANYONE OTHER THAN LESSEE OR LESSEE'S EMPLOYEES. LESSOR MAY ASSIGN THIS LEASE OR
GRANT A SECURITY INTEREST IN ANY OR ALL EQUIPMENT, OR BOTH, IN WHOLE OR IN PART
TO ONE OR MORE ASSIGNEES OR SECURED PARTIES WITHOUT NOTICE TO LESSEE. If Lessee
is given notice of such assignment it agrees to acknowledge receipt thereof in
writing and Lessee shall execute such additional documentation as Lessor's
assignee shall require. Each such assignee and/or secured party shall have all
of the rights, but none of the obligations, of Lessor under this Lease, unless
such assignee or secured party expressly agrees to assume such obligations in
writing. Lessee shall not assert against any assignee and/or secured party any
defense, counterclaim or offset that Lessee may have against Lessor.
Notwithstanding any such assignment, and providing no Event of Default has
occurred and is continuing, Lessor, or its assignees, secured parties, or their
agents or assigns, shall not interfere with Lessee's right to quietly enjoy use
of Equipment subject to the terms and conditions of this Lease. Subject to the
foregoing, this Lease inures to the benefit of and is binding upon the
successors and assignees of the parties hereto. Lessee acknowledges that any
such assignment by Lessor will not materially change Lessee's duties or
obligations under the Lease or increase any burden of risk on Lessee.
17. DEFAULT. (a) Event of Default. Any of the following events or conditions
shall constitute an "Event of Default" hereunder: (i) Lessee's failure to pay
any monies due to Lessor hereunder or under any Schedule beyond the fifth (5th)
day after the same is due; (ii) Lessee's failure to comply with its obligations
under Section 12 or Section 16; (iii) Lessee's failure to comply with or perform
any term, covenant, condition, warranty or representation of this Lease or any
Schedule hereto or under any other agreement between Lessee and Lessor or under
any lease of real property covering the location of Equipment if such failure to
comply or perform is not cured by Lessee within twenty (20) days of receipt of
notice thereof-, (iv) seizure of the Equipment under legal process; (v) the
filing by or against Lessee of a petition for reorganization or liquidation
under the Bankruptcy Code or any amendment thereto or under any other insolvency
law providing for the relief of debtors; (vi) the voluntary or involuntary
making of an assignment of a substantial portion of its assets by Lessee, or any
guarantor under any guaranty executed in connection with this Lease
("Guaranty"), for the benefit of its creditors, the appointment of a receiver or
trustee for Lessee or any Guarantor for any of Lessee's or Guarantor's assets,
the institution by or against Lessee or
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any Guarantor of any formal or informal proceeding for dissolution, liquidation,
settlement of claims against or winding up of the affairs of Lessee or any
Guarantor; or (vii) the making by Lessee or any Guarantor of a transfer of all
or a material portion of Lessee's or Guarantor's assets or inventory not in the
ordinary course of business.
(b) Remedies. If any Event of Default shall have occurred:
(i) Lessor may proceed by appropriate court action or actions
either at law or in equity to enforce performance by Lessee, of the applicable
covenants of this Lease, or to recover damages therefor; or
(ii) Lessee will, without demand, on the next rent payment
date following the Event of Default, pay to Lessor as liquidated damages which
the parties agree are fair and reasonable under the circumstances existing at
the time this Lease is entered into, and not as a penalty, an amount equal to
the Casualty Value of the Equipment set forth in Exhibit C together with any
rent or other amounts past due and owing by Lessee hereunder; and
(iii) Lessor may, without notice to or demand upon Lessee;
(a) Take possession of the Equipment and lease the same or any portion
thereof, for such period, amount, and to such entity as Lessor shall elect. The
proceeds of such lease will be applied by Lessor (A) first, to pay all costs and
expenses, including reasonable legal fees and disbursements, incurred by Lessor
as a result of the default and the exercise of its remedies with respect
thereto, (B) second, to pay Lessor an amount equal to any unpaid rent or other
amounts past due and payable plus the Casualty Value, to the extent not
previously paid by Lessee, and (C) third, to reimburse Lessee for the Casualty
Value to the extent previously paid. Any surplus remaining thereafter will be
retained by Lessor.
(b) Take possession of the Equipment and sell the same or any portion
thereof at public or private sale and without demand or notice of intention to
sell. The proceeds of such sale will be applied by Lessor (A) first, to pay all
costs and expenses, including reasonable legal fees and disbursements, incurred
by Lessor as a result of the default and the exercise of its remedies with
respect thereto, (B) second, to pay Lessor an amount equal to any unpaid rent or
other amounts past due and payable plus the Casualty Value, to the extent not
previously paid by Lessee, and (C) third, to reimburse Lessee for the Casualty
Value to the extent previously paid by Lessee. Any surplus remaining thereafter
will be retained by Lessor.
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(c) Take possession of the Equipment and hold and keep idle the same or
any portion thereof.
Lessee agrees to pay all reasonable out-of-pocket costs of Lessor
related to the exercise of its remedies, including out-of-pocket legal fees for
outside counsel and expenses. At Lessor's request, Lessee shall assemble the
Equipment and make it available to Lessor at such location as Lessor may
designate. Lessee waives any right it may have to redeem the Equipment.
Repossession of any or all Equipment shall not terminate this Lease or
any Schedule unless Lessor notifies Lessee in writing. Any amount required to be
paid under this Section shall be increased by a service charge of 1.5% per
month, or the highest rate of interest permitted by applicable law, whichever is
less, accruing from the date the Casualty Value or other amounts are payable
hereunder until such amounts are paid.
None of the above remedies is intended to be exclusive, but each is
cumulative and in addition to any other remedy available to Lessor, and all may
be enforced separately or concurrently.
In addition to the foregoing remedies, if an Event of Default
hereunder shall have occurred and be continuing, Lessee shall promptly provide
Lessor with copies of the minutes of each meeting of Lessee's board of directors
or any committee thereof and copies of each written consent taken by the board
or such committees.
18. LATE PAYMENTS. A service charge of 1.5% per month, or the highest service
charge permitted by applicable law, whichever is less, shall be paid by Lessee
to Lessor on all funds owed Lessor by Lessee. If such funds have not been
received by Lessor at Lessor's place of business or by Lessor's designated agent
by the date such funds, are due under this Lease, Lessor shall xxxx Lessee for
such charges. Lessee acknowledges that invoices for rentals due hereunder are
sent by Lessor for Lessee's convenience only. Lessee's non-receipt of an invoice
will not relieve Lessee of its obligation to make rent payments hereunder.
19. LESSOR'S EXPENSE. Lessee shall pay Lessor all costs and expenses including
reasonable attorney's fees and the fees of the collection agencies, incurred by
Lessor in enforcing any of the terms, conditions or provisions hereof.
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20. OWNERSHIP; PERSONAL PROPERTY. The Equipment shall be and remain personal
property of Lessor, and Lessee shall have no right, title or interest therein or
thereto except as expressly set forth in this Lease, notwithstanding the manner
in which it may be attached or affixed to real property, and upon termination or
expiration of the Lease term, Lessee shall have the duty and Lessor shall have
the right to remove the Equipment from the premises where the same be located
whether or not affixed or attached to the real property or any building, at the
cost and expense of Lessee.
21. ALTERATIONS; ATTACHMENTS. No alterations or attachments shall be made to the
Equipment without Lessor's prior written consent, which shall not be given for
changes that will affect the reliability and utility of the Equipment or which
cannot be removed without damage to the Equipment, or which in any way affect
the value of the Equipment for purposes of resale or re-lease.
22. FINANCING STATEMENT. Lessee will execute financing statements pursuant to
the Uniform Commercial Code. Lessee authorizes Lessor TO file financing
statements signed only by Lessor (where such authorization is permitted by law)
at all places where Lessor deems necessary.
23. MISCELLANEOUS. (a) Lessee shall provide Lessor with such corporate
resolutions, financial statements and other documents as Lessor shall request
from time to time. (b) Lessee represents that the Equipment is being leased
hereunder for business purposes. (c) Time is of the essence with respect to this
Lease. (d) Lessee shall keep its books and records in accordance with generally
accepted accounting principles and practices consistently applied and shall
deliver to Lessor its annual audited financial statements, unaudited monthly
financial statements and signed by an officer of Lessee and such other unaudited
financial statements as may be reasonably requested by Lessor. (e) Any action by
Lessee against Lessor for any default by Lessor under this Lease, including
breach of warranty or indemnity, shall be commenced within one (1) year after
any such cause of action accrues.
24. NOTICES. All notices hereunder shall be in writing, by registered mail, and
shall be directed, as the case may be, to Lessor at 0000 Xxxxxx Xxxxxxxxx, Xxx
Xxxxxx, Xxxxxxxxxx 00000, Attention: Lease Administration and to Lessee at
_____________________________________ Attention: _______________________.
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25. ENTIRE AGREEMENT. Lessee acknowledges that Lessee has read this Lease,
understands it and agrees to be bound by its terms, and further agrees that it
and each Schedule constitute the entire agreement between Lessor and Lessee with
respect to the subject matter hereof and supersedes all previous agreements,
promises, or representations. The terms and conditions hereof shall prevail
notwithstanding any variance with the terms of any purchase order submitted by
the Lessee with respect to any Equipment covered hereby.
26. AMENDMENT. This Lease may not be changed, altered or modified except by an
instrument in writing signed by an officer of the Lessor and the Lessee.
27. WAIVER. Any failure of Lessor to require strict performance by Lessee or any
waiver by Lessor of any provision herein shall not be construed as a consent or
waiver of any other breach of I the same or any other provision.
28. SEVERABILITY. If any provision of this Lease is held invalid, such
invalidity shall not affect any other provisions hereof.
29. JURISDICTION AND WAIVER OF JURY TRIAL. This Lease shall be governed by and
construed under the laws of the State of California. It is agreed that exclusive
jurisdiction and venue for any legal action between the parties arising out of
this Lease shall be in the Superior Court for Marin County, California, or, in
cases where Federal diversity jurisdiction is available, in the United States
District Court for the Northern District of California. LESSEE, TO THE EXTENT IT
MAY LAWFULLY DO SO, HEREBY WAIVES ITS RIGHT TO TRIAL BY JURY IN ANY ACTION
BROUGHT ON OR WITH RESPECT TO THIS LEASE, ANY SCHEDULE, OR ANY AGREEMENT
EXECUTED IN CONNECTION HEREWITH.
30. NATURE OF TRANSACTION. Lessor makes no representation whatsoever, express or
implied, concerning the legal character of the transaction evidenced hereby, for
tax or any other purpose.
31. SECURITY INTEREST. (a) One executed copy of the Lease will be marked
"Original" and all other counterparts will be duplicates. To the extent, if any,
that this Lease constitutes chattel paper (as such term is defined in the
Uniform Commercial Code as in effect in any applicable jurisdiction) no security
interest in the lease may be created in any documents other than the "Original."
(b) There shall be only one original
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of each Schedule and it shall be marked "Original," and all other counterparts
will be duplicates. To the extent, if any, that any Schedule(s) to this Lease
constitutes chattel paper (or as such term is defined in the Uniform Commercial
Code as in effect in any applicable jurisdiction) no security interest in any
Schedule(s) may be created in any documents other than the "Original."
32. SUSPENSION OF OBLIGATIONS. The obligations of Lessor hereunder will be
suspended to the extent that it is hindered or prevented from complying
therewith because of labor disturbances, including but not limited to strikes
and lockouts, acts of God, fires, storms, accidents, failure of the manufacturer
to deliver any item of Equipment, governmental regulations or interference, or
any cause whatsoever not within the sole and exclusive control of Lessor.
33. COMMITMENT FEE. Lessee has paid to Lessor a commitment fee ("Fee") of
$10,000. The Fee shall be applied by Lessor first to reimburse Lessor for all
out-of-pocket UCC search costs, and inspection fees incurred by Lessor, and then
proportionally to the first month's rent for each Schedule hereunder in the
proportion that the purchase price of the Equipment leased pursuant to the
Schedule bears to Lessor's entire commitment. However, the portion of the Fee
which is not applied to rental shall be nonrefundable except if Lessor defaults
in its obligations pursuant to Section 3.
34. FINANCE LEASE. The parties agree that this lease is a "Finance Lease" as
defined by section 10-103(a)(7) of the California Commercial Code (Cal.Com.C.).
Lessee acknowledges either (a) that Lessee has reviewed and approved any written
Supply Contract (as defined by Cal.Com.C. Section 10-103(a)(25)) covering
Equipment purchased from the "Supplier" (as defined by Cal.Com.C. Section
10-103(a)(24)) thereof for lease to Lessee or (b) that Lessor has informed or
advised Lessee, in writing, either previously or by this Lease of the following:
(i) the identity of the Supplier; (ii) that the Lessee may have rights under the
Supply Contract; and (iii) that the Lessee may contact the Supplier for a
description of any such rights Lessee may have under the Supply Contract. Lessee
hereby waives any rights and remedies Lessee may have under Cal.Com.C. Sections
10-508 through 522.
14
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IN WITNESS WHEREOF, the parties hereto have executed this Lease.
PHOENIX LEASING INCORPORATED LEUKOSITE, INC.
By: [signature appears here] By: [signature appears here]
------------------------------- -------------------------------------
Title: Title:
---------------------------- ----------------------------------
Headquarters Location:
----------------------------------
Xxxxxx
----------------------------------
Xxxx, Xxxxx Zip Code
----------------------------------
County
Exhibit A - Closing Memorandum
15
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Exhibit A
to MASTER EQUIPMENT LEASE
Dated October 3, 1994
CLOSING MEMORANDUM
1.* Duly Executed Master Equipment Lease marked "Original."
2. Duly Executed Schedule marked "Original."
3. Duly Executed Certificate of Acceptance.
4. Insurance Certificates.
5.* Resolutions of Lessee's Board of Directors/Incumbency Certificate.
6. Agreement to Allow Removal of Personal Property."
7. Purchase Agreement Assignment.
8. UCC Financing Statements.
9. Xxxx of Sale (for Sale-Leaseback Equipment).
10. UCC search.
11* Payment of Commitment Fee.
12. Equipment List, in form and substance satisfactory to Lessor.
13. Certificate of Chief Financial Officer as to the existence of no
defaults and as to there being no material adverse change in the condition,
financial or otherwise, of the Lessee.
14. See Section 3 of Master Equipment Lease for additional preconditions
to closing.
* First Schedule Only
** Required if any Equipment is a fixture, i.e., attached to real property.
