EXHIBIT 10.41
PENTECH FINANCIAL SERVICES, INC.
MASTER EQUIPMENT LEASE COMMITMENT
Subject to the conditions set forth in this Master Equipment Lease
Commitment ("Commitment"), the following leasing transaction is agreed to by and
between PENTECH FINANCIAL SERVICES, INC., a California corporation ("Lessor")
and Conductus, Inc., a DELAWARE corporation ("Lessee"), in connection with the
terms and conditions of Master Equipment Lease No. 301001 (the "Lease") with an
effective date of SEPTEMBER 1, 2000.
1. EQUIPMENT (all Equipment is to be acceptable to Lessor): test
equipment, manufacturing equipment, personal computers, and other related
equipment to be approved by Lessor. A percentage equal to 10% of the line
amount, but not more than 15% of any individual schedule may be used for "soft
cost" exclusions listed below.
EXCLUSIONS: custom use equipment, software, installation and delivery
costs, purchase tax, tooling equipment, tenant improvements and items generally
considered fungible or expendable.
2. COMMITMENT AMOUNT. $2,000,000.00.
3. LEASE SUPPLEMENTS. This is a Master Equipment Lease transaction whereby
Supplements may be funded as Equipment is delivered. Supplements scheduling
Equipment to be subject to the Lease will each be for the term and on the
conditions set out herein. No individual Supplement shall be for less than
$100,000.00. Lessee acknowledges that Lessee will, upon demand by Lessor, pay
directly to the appropriate party the amount of any invoice which may be
furnished to Lessor subsequent to inclusion of the applicable item of Equipment
on a Supplement.
4. TERM. Each Supplement under the Lease will be for an initial term of 36
months commencing on the first day of the calendar month following delivery and
acceptance of the Equipment on the Supplement.
5. MONTHLY RENT PAYMENT. 3.17% of cost (the "Monthly Lease Rate Factor")
original Equipment payable monthly in advance reflecting an annual interest rate
of 9.31% of the monthly rents. First and last months' payments are due at
closing of each schedule. Payment is subject to rate adjustments pursuant to
paragraph 9, below.
6. COMMENCEMENT DATE. Monthly rent for each Supplement will commence on
the first day of the calendar month following delivery and acceptance of the
Equipment on the Supplement.
7. INTERIM RENT. Interim rent will be charged for the period commencing on
delivery and acceptance of the Equipment on any particular Supplement and ending
the last day in that month, and will be the daily equivalent of the Monthly Rent
Payment, computed on a thirty (30) day month.
8. COMMITMENT EXPIRATION DATE. JUNE 30, 2001. The Commitment Expiration
Date may be extended, in Lessor's sole discretion, upon review by Lessor of the
Lessee's then current financial condition. Lessee agrees to provide Lessor such
financial and other information as Lessor may reasonably request to evaluate
Lessee's financial condition for purposes of granting such extension.
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Lessee acknowledges that Lessor will have no further obligations hereunder
as to any item of Equipment not included on any Supplement under the Lease after
the Commitment Expiration Date.
9. RATE ADJUSTMENT. The Monthly Lease Rate Factor will be indexed to the
thirty (30) day London Inter Bank Offer Rate ("LIBOR") ("the "Index Instrument")
which on the date of the proposal was 5.9125% (WALL STREET JOURNAL dated
February 29, 2000). The Monthly Lease Rate Factor shall be adjusted to provide
for any increase or decrease, with a floor of 5.9125%. At the Commencement Date
of each Supplement, the Monthly Lease Rate Factor shall be fixed for the initial
term of such Supplement.
10. UCC SEARCH/RELEASES: The Lessor may search all public records and
filings of Lessee to locate and identify any conflicting liens against the
Equipment. UCC releases from any intervening parties holding a security interest
in said Equipment shall be required prior to funding any Supplement.
11. TYPE OF LEASE: This is a net lease transaction whereby maintenance,
insurance, property taxes, and all items of a similar nature are solely for the
account of the Lessee.
12. EXPENSES: All expenses associated with the lease transaction
contemplated hereby including, but not limited to, UCC filing fees, title and
lien searches, documentation costs, legal expenses, and equipment verification
costs are solely for the account of the Lessee. Lessee will pay as directed by
Lessor, or will reimburse Lessor on demand, for all such costs and other charges
incurred by Lessor in connection with the Lease and Supplements, in an amount
not to exceed $5,000.00.
13. LEASE DEPOSIT: Lessee shall provide Lessor a Lease Deposit in the
amount of $20,000.00, receipt of which is hereby acknowledged. This deposit
shall be applied to Lessee's first monthly rent payment on a prorated basis for
each Supplement funded under the Lease. The balance of any unapplied Lease
Deposit as of the Commitment Expiration Date shall be deemed to have been earned
by Lessor as of that date.
14. ANNUAL FINANCIAL STATEMENTS: Lessee agrees to provide Lessor with
Lessee's annually audited financial statements within 120 days of the close of
Lessee's fiscal year end.
15. ADVANCE PAYMENTS: The first and last month's rent under any Supplement
will be payable prior to the Commencement Date of the Supplement.
16. RESIDUAL OPTIONS: So long as no default shall have occurred and be
continuing, lessee shall have the following options:
a) Purchase all but not less than all, of the equipment at its then Fair
Market Value (FMV), 15% of its original costs, as set forth in each supplement;
or
b) Renew the lease for a 12-month period at its Fair Market Rental Value
(FMRV) 60% of the original rental amount after which Lessor agrees to sell the
equipment to Lessee for $1.00; or
c) Return all, but not less than all, of the equipment covered under the
lease subject to a remarketing charge equal to 11% of its original purchase
price.
17. ADVERTISING: During the term of any schedule or supplement under this
Master Lease line, Lessor may publish, for the purpose of its own advertising
and promotion only, via print and/or electronic media, the name and the logo of
Lessee, together with the total amount of the Master Lease Line.
18. WARRANTS: Lessee shall issue to Lessor a Warrant to purchase 10,000
shares of Conductus, Inc. Common Stock at the market price on September 20,
2000, the date of approval. The
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Warrant shall have an exercise term of 7 years from the date of issue and shall
contain standard anti-dilution provisions. The Warrant may be exchanged without
the payment of any additional consideration for stock based upon the value of
the common or preferred stock at the exchange, i.e., net issuance.
19. DOCUMENTATION. Prior to Lessor issuing a purchase order for any item of
Equipment, Lessee will comply with, procure and/or execute, have executed,
acknowledge, have acknowledged, deliver to Lessor, record and file any
documents, or produce such evidence, facts or figures as set forth in Exhibit A
accompanying this Commitment, and will do likewise as to any further documents,
evidence, facts or figures that Lessor and its counsel may now or hereafter deem
necessary or advisable to protect Lessor's rights under the Lease and
Supplements and its interest in the Equipment. Lessee will pay as directed by
Lessor, or will reimburse Lessor on demand, for all costs, including legal,
appraisal, due diligence, title and lien searches, UCC recording, documentation
and other charges incurred by Lessor in connection with the Lease and
Supplements. The form, substance and sufficiency of all documents employed in
documenting the Lease and Supplements contemplated hereby must be acceptable to
Lessor and its counsel.
20. TERMINATION. Lessor, in its sole discretion, retains the right to delay
or to cancel lease funding commitments if adverse change in Lessee's financial
condition occurs which has, in Lessor's sole discretion, impacted or which may
impact Lessee's credit capability. Lessor may, at its option, terminate its
obligation to Lessee hereunder (a) at or subsequent to the Commitment Expiration
Date; (b) upon the advent of a material adverse change, in Lessor's sole
discretion, in Lessee's financial condition or Lessee's probable ability to
perform its obligations under the Lease and Supplements; (c) if the Lease, any
Supplement, or any other agreement under which Lessee has the obligation to
Lessor is in default or an event which would constitute a default under the
Lease, any Supplement or any other agreement has occurred and is continuing; or
(d) with respect to any item if the shipping costs, installation charges and
design costs applicable thereto exceed more than fifteen percent (15%) of its
total cost to Lessor. Termination shall occur upon Lessor's giving ten (10) days
written notice of termination to Lessee.
In the event Lessor elects to terminate its obligation to Lessee with respect to
future funding commitments, Lessee will purchase all of Lessor's right, title
and interest in the Equipment subject to such funding commitments for the amount
Lessor has paid or has become obligated to pay on account thereof, plus interest
on amounts actually paid at the rate of eighteen percent (18%) per annum, or
such greater or lesser contract rate as may be applicable to Lessor, from the
date paid to the date of Lessee's repurchase.
ACCEPTED AND AGREED to effective SEPTEMBER 1, 2000.
LESSOR: LESSEE:
PENTECH FINANCIAL SERVICES, INC. CONDUCTUS, INC., a Delaware
a California corporation corporation
By: /s/ Xxxxxxxx X. Xxxxxxxxx By: /s/ Xxx Xxxxxxxxx
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Xxxxxxxx X. Xxxxxxxxx Name
Its: President Its:
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