CUSTOMER NO. 1114
MASTER LEASE AGREEMENT
Lessor: TRANSAMERICA BUSINESS CREDIT CORPORATION
RIVERWAY 00
XXXX XXXXXX XXXXX
XXXX XXXXXXX
XXXXXXXX, XXXXXXXX 00000
Lessee: ENDOCARDIAL SOLUTIONS, INC.
0000 XXXXXX XXXX
XXXXX 000
XXXXX XXXX, XXXXXXXXX 00000-0000
The lessor pursuant to this Master Lease Agreement ("Agreement") dated as of
May 4, 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 Paragraph 1 below, Lessor has no obligation to enter
into any additional leases with, or extend any future financing to, Lessee.
I . 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. The timing and financial scope of
Lessor's obligation to enter into Leases hereunder are limited as set forth
in the Commitment Letter executed by Lessor and Lessee, dated as of March 4,
1998 and attached hereto as Exhibit A (the "Commitment Letter").
2. TERM. Each Lease shall be effective and the term of each Lease
("Term") shall commence on the commencement date 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 and acceptance in writing of the Equipment to Lessee or
upon completion of deliveries and acceptance in writing of items of such
Equipment with aggregate cost of not less than $50,000.
3 . RENT. Lessee shall pay as rent to Lessor, for use of the Equipment
during the Term or Renewal Term (as defined in Paragraph 8), 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 five days after the day
on which it becomes payable, Lessee will pay on demand, as a late charge, an
amount equal to 3% 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.
4. LEASE NOT CANCELABLE; LESSEE'S OBLIGATIONS ABSOLUTE. No Lease may
be canceled or terminated except as expressly provided herein. Lessee's
obligation to 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 and 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 A CLAIM AGAINST LESSOR FOR
BREACH OF ANY WARRANTY WHATSOEVER. LESSEE LEASES THE EQUIPMENT "AS IS." IN
NO EVENT SHALL LESSOR HAVE ANY LIABILITY, 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, MA XXXXX, 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, 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. RENEWAL. So long as no Event of Default or event which, with the
giving of notice, the passage of time, or both, would constitute an Event of
Default, shall have occurred and be continuing, or the Lessee shall not have
exercised its purchase option under Paragraph 9 hereof, each Lease will
automatically renew for a term specified in the applicable Schedule (the
"Renewal Term") on the terms and conditions of this Agreement or as set forth
in such Schedule; PROVIDED, HOWEVER, that Obligations due to be performed by
the Lessee during the Renewal Term shall continue until they have been
performed in full.
9. PURCHASE OPTION. So long as no Event of Default or event which,
with the giving of notice, the passage of time, or both, would constitute an
Event of Default, shall have occurred and be continuing, Lessee may, upon
written notice to Lessor received at least ninety days before the expiration
of a Term, 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 purchase price for such Equipment shall be its fair
market 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. Lessee shall pay the cost of any such appraisal. So
long as no Event of Default or event which, with the giving of notice, the
passage of time, or both, would constitute an Event of Default shall have
occurred and be continuing, Lessee may, upon written notice to Lessor
received at least ninety days prior to the expiration of the Renewal Term,
purchase all, but not less than all, the Equipment covered by the applicable
Schedule by the last date of the Renewal Term (the "Alternative Purchase
Date") at a purchase price equal to its then fair market value on an
"In-place, In-use" basis. On the Purchase Date or the Alternative Purchase
Date, as the case may be, for any Equipment, 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 (except as to the absence of
transfers by Lessor of its interest in the Equipment and Lessor Liens),
express or implied, all of Lessor's right, title, and interest in and to such
Equipment on an "As Is, Where Is" basis. The term "Lessor Liens" shall mean
(a) liens resulting from (I) an affirmative act of Lessor to create such
liens and (ii) that are not Permitted Liens, or consented to by Lessee, and
(b5 liens resulting from claims against Lessor not related to the
transactions contemplated hereby (other than such liens which are either not
delinquent or which are being contested in good faith by appropriate
proceedings that suspend the collection of any amounts due or which have been
adequately bonded or with respect to which a stay of execution has been
obtained pending an appeal or proceeding for review).
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10. 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.
11. 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.
12. 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, shall meet all recertification requirements, if
any, 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.
13. ALTERATION; MODIFICATIONS; PARTS. Lessee may materially 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
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.
14. RETURN OF EQUIPMENT. Except for Equipment that has suffered a
Casualty Loss (as defined in Paragraph 15 below) and is not required to be
repaired pursuant to Paragraph 15 below or Equipment purchased by Lessee
pursuant to Paragraph 9 above, upon the expiration of the Renewal Term of a
Lease, or upon demand by Lessor pursuant to Paragraph 22 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 (i) 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, (ii) meet all recertification requirements, if any, and (iii) be
capable of being promptly assembled and operated by a third party purchaser
or third party lessee without further repair, replacement, alterations, or
improvements, and in accordance and compliance with any and all statutes,
laws, ordinances, rules, and regulations of any governmental authority or any
political subdivision thereof applicable to the use and operation of the
Equipment. Except as otherwise provided under Paragraph 9 hereof, at least
one hundred eighty days before the expiration of the Renewal Term, Lessee
shall give Lessor notice of its intent to return the Equipment at the end of
such Renewal Term. During the ninety-day period prior to the end of a Term
or the Renewal Term, Lessor and its prospective purchasers or lessees shall
have, upon not less than two business days' prior written notice to Lessee
and during normal business hours, or at any time and without 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 in all other respects with Lessor's
remarketing of the Equipment. The provisions of this Paragraph 14 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 14. If Lessee fails to return the Equipment when
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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.
15. 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 f 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
to Lessor 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 14 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 reasonably determined by Lessor) from the date of
the Casualty Loss through the date of payment of such amounts (to the extent
any such amounts were not shall transfer to Lessee, without recourse or
warranty (express or implied) (except as to the absence of Lessor Liens), all
of Lessor's 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 Lessor, either towards (i) repair of the
Equipment or (ii) payment of 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 reasonably
determined by Lessor) from the date of the Casualty Loss through the date of
payment of such amounts (to the extent any such amounts were not paid when
due). 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.
16. TAXES. Lessee shall pay when due, 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 intrest equalization taxes, levies, imposts, duties, charges, or
withholdings of any nature), and 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, Lessee
will pay all property taxes on the Equipment. Lessee shall timely prepare
and file all reports and returns which are required to be made with respect
to any obligation of Lessee under this Paragraph 16. Lessee shall, to the
extent permitted by law, cause all xxxxxxxx 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 xxxxxxxx.
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17. LESSOR'S PAYMENT. If Lessee fails to perform its obligations under
Paragraph 15 or 16 above, or Paragraph 23 below, Lessor shall have the right
to substitute performance, in which case Lessee shall immediately reimburse
Lessor therefor.
18. 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, 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 by a
non-appealable, final order of a court of competent jurisdiction to have
occurred as a result of the gross negligence or willful misconduct of Lessor
or its successors and assigns. Lessor agrees to provide Lessee written
notice of any claim for indemnification under this Paragraph 18 within 30
days after Lessor has actual knowledge of such claim. 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. 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
for two years after the expiration or termination of such Lease.
19. 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; 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. Not with standing 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.
20. 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 immediately 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.
21. 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 any other provision under or in connection with a Lease or violates
any of the covenants or agreements of such Lease Party under or in connection
with a Lease and such failure or violation continues for fifteen (15) days
after written notice thereof from Lessor to Lessee; (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
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petition or proceeding; (f) any of the Lease Parties fails to pay when due
any indebtedness for borrowed money in excess of $100,000 or under
conditional sales or installment sales contracts or similar agreements,
leases, or obligations in excess of $100,000 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; (g) any judgment in excess of $100,000 shall be
rendered against any of the Lease Parties which shall remain unpaid or
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 after written request by Lessor, delivers
executed financing statements (in form and substance satisfactory to the
Lessor); (j) any of the Lease Parties shall merge or consolidate with any
other entity or make any material 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 necessary to the
profitable conduct of its business, fail generally to pay its debts as they
mature, or call a meeting for purposes of compromising its debts; or (1) any
of the Lease Parties shall deny or disaffirm its obligations hereunder or
under any of the documents delivered in connection herewith.
22. REMEDIES. Upon the occurrence and continuation of an Event of
Default, 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 shall
fail to return any or all Equipment to Lessor in accordance with Paragraph 14
above, and, for each day that Lessee shall fail to return any item of
Equipment, Lessor may demand an amount equal to the per them Rent payable for
such Equipment in accordance with Paragraph 14 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 23 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, (2) the date that Lessor has obtained possession of
the Equipment, or (3) 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 five percent compound 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 (provided that
Lessor has not taken possession of such Equipment); and (v) any indebtedness
for Lessee's indemnity under Paragraph 18 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, PROVIDED, however, that Lessor
shall not be entitled to recover an amount in excess of the amount it would
have received had each Lease been fully performed for its full term, plus any
out-of-pocket expenses incurred in connection with the Leases; and (g)
exercise any other right or remedy to recover damages or enforce the terms of
the Leases. Upon the occurrence and 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 herefrom 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
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such rights and remedies shall be cumulative and may be enforced concurrently
or individually from time to time.
23. LESSOR'S EXPENSE. Lessee shall pay Lessor on demand all costs and
expenses (including legal fees and expenses) incurred in connection with the
preparation, execution and delivery of this Agreement and any other
agreements and transactions contemplated hereby and all costs and expenses in
protecting and enforcing Lessor's rights and interests in each Lease and the
equipment, including, without limitation, reasonable legal, collection, and
remarketing fees and expenses incured by Lessor in enforcing the terms,
conditions, or provisions of each Lease or upon the occurrence and
continuation of an Event of Default.
24. 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. 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 22 above or which may otherwise limit or modify any of Lessor's
rights or remedies under Paragraph 22. Any action by Lessee against Lessor
for any default by Lessor under any Lease shall be commenced within two years
after any such cause of action accrues.
25. 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 Transamerica Technology Finance
Division, 00 Xxxxxxxxx Xxxx Xxxx, Xxxxxxxxxx, Xxxxxxxxxxx 00000, Attention:
Assistant Vice President, Lease Administration, with a copy to Lessor at
Riverway II, West Office Tower, 0000 Xxxx Xxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx
00000, Attention: Legal Department, if to Lessee, then to Endocardial
Solutions, Inc., 0000 Xxxxxx Xxxx, Xxxxx 0 10, Saint Xxxx, Minnesota
55108-5254, Attention: Controller 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.
26. 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, regulation, rule, 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, except as enforceability may be
limited by bankruptcy, insolvency, fraudulent conveyance, or any similar laws
affecting creditors rights generally, and general principles of equity,
whether or not such enforceability is considered in a proceeding at equity or
in law; (e) 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 writing
connection herewith is correct and does not omit any material statement
necessary to insure that the information supplied is not misleading.
27. 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 reasonably deems advisable.
28. 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
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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.
29. 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.
30. WAIVER OF JURY TRAIL. LESSEE AND LESSOR IRREVOCABLY WAIVE ALL
RIGHT TO TRIAL BY ANY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM ARISING OUT
OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
31. 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.
32. 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.
33. 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, 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, (ii) not been required to include any amount in income other than
the Rent, and (iii) 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 absent manifest error. 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 33 shall
survive for two years after the termination of this Agreement.
34. 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 IN CONNECTION HEREWITH FROM TIME TO TIME, AND THE
COMMITMENT LETTER ARE THE
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COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT 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.
SHOULD THERE EXIST ANY INCONSISTENCY BETWEEN THE TERMS OF THE COMMITMENT
LETTER AND THE AGREEMENT, THE TERMS OF THIS AGREEMENT SHALL PREVAIL.
IN WITNESS WHEREOF, the parties hereto have executed or caused this
Agreement to be duly executed by their duly authorized officers as of the
date first written above.
ENDOCARDIAL SOLUTIONS, INC.
By:
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Name:
Title:
Federal Tax ID: 00-0000000
TRANSAMERICA BUSINESS CREDIT
CORPORATION
By:
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Name:
Title:
Form 1
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