Exhibit 10.42
MASTER LEASE AGREEMENT
(QUASI)
dated as of June 25, 2004 ("AGREEMENT")
THIS AGREEMENT is between GENERAL ELECTRIC CAPITAL CORPORATION (together with
its successors and assigns, if any, "LESSOR") and PHOTOMEDEX, INC. ("LESSEE").
Lessor has an office at 00 Xxxxxxx Xxxxxxx Xxxx, Xxxxxxx, XX 00000. Lessee is a
corporation organized and existing under the laws of state of Delaware. Lessee's
mailing address and chief place of business is 000 Xxxxxxxx Xxxxx,
Xxxxxxxxxxxxxxx, XX 00000. This Agreement contains the general terms that apply
to the leasing of Equipment from Lessor to Lessee. Additional terms that apply
to 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. The terms of
this Agreement and the additional terms in Schedules shall be
consistent with the term sheet attached hereto as Exhibit A.
(b) Lessor shall purchase Equipment from the Lessee 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.
Once the Schedule is signed, the Lessee may not cancel the
Schedule. Lessor shall not purchase used equipment where a
receivable is in excess of ninety (90) days.
(c) Except as permitted under Section 1(d) of this Agreement or
until the declaration of any default, Lessee shall remain in
possession of the Equipment; except that Lessor shall have the
right to possess (i) any chattel paper or instrument that
constitutes a part of the Equipment, and (ii) any other
Equipment in which Lessor's security interest may be perfected
only by possession. Lessor may inspect any of the Equipment
during normal business hours after giving Lessee reasonable
prior notice. If Lessor asks, Lessee will promptly notify
Lessor in writing of the location of any Equipment.
(d) Notwithstanding the terms of this Section 1 or any other
provision of this Agreement, Lessee may sublease or rent
certain equipment included in the Equipment for the purpose of
generating revenue, to dermatologists and other qualified
users ("Users"), duly approved by Lessee for credit purposes
and upon signing of a standard rental usage contract or
surgical services agreement. Such equipment will be located at
Users' premises or at Lessee's branch offices.
(e) Except as permitted under Section 1(d) of this Agreement,
Lessor does not authorize and Lessee agrees it shall not (i)
part with possession of any of the Equipment (except to Lessor
or for maintenance and repair), (ii) remove any of the
Equipment from the continental United States, or (iii) grant a
security interest in or otherwise transfer or encumber any of
the Equipment.
(f) Lessee agrees and acknowledges that Users and any other third
person who may at any time possess all or any portion of the
Equipment shall be deemed to hold, and shall hold, the
Equipment as the agent of, and as pledge holder for, Lessor.
Lessor may at any time give notice to any third person
described in the preceding sentence that such third person is
holding the Equipment as the agent of, and as pledge holder
for, the Lessor.
(g) Lessee shall pay Lessor for the costs of all audits in an
amount equal to $750 per person per day.
2. TERM, RENT AND PAYMENT:
(a) The rent payable for the Equipment and Lessee's right to use
the Equipment shall begin on the earlier of (i) the date when
the Lessee signs the Schedule and accepts the Equipment
("LEASE COMMENCEMENT DATE"). The term of this Agreement shall
be the period specified in the applicable Schedule. The word
"term" shall include all basic and any renewal terms.
(b) Lessee shall pay rent to Lessor at its address stated above,
except as otherwise directed by Lessor. Rent payments shall be
in the amount set forth in, and due as stated in the
applicable Schedule. Lessee shall pay to Lessor as Advance
Rent an amount equal to 7.75% of the draw under the line of
credit that is made in consideration of the applicable
Schedule, less the applied prorata portion of Lessee's good
faith deposit. If any Advance Rent (as stated in the Schedule)
is payable, it shall be due when the Lessee signs the
Schedule. Advance Rent shall be applied to the first rent
payment and the balance, if any, to the final rent payment(s)
under such Schedule. In no event shall any Advance Rent or any
other rent payments be refunded to Lessee. If rent is not paid
within ten (10) days of its due date, Lessee agrees to pay a
late charge of five cents ($.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 any Equipment (or purchase, ownership, delivery,
leasing, possession, use or operation thereof), this Agreement
(or any rents or receipts hereunder), any Schedule, Lessor or
Lessee by any 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, gross receipts, 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 which are on or measured by the net income
of Lessor. 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 Lessee's 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 monthly 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 month end and its complete audited annual
financial statements, certified by a recognized 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"). 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) In addition to the reports stated in Section 4(b) of this
Agreement, Lessee will deliver to Lessor, the following
reports and certificates:
o Monthly aging of receivable balances in which Lessor
has an interest, by usage or services contracts,
within 15 days of month end.
o Monthly report on location of XTRAC and surgical
laser systems in which Lessor has an interest within
15 days of month end.
o Monthly listing of cancelled contracts in which
Lessor has an interest, by name, location and reason
within 15 days of month end.
The above stated reports will be certified on a monthly basis by
Lessee's Chief Financial Officer.
i. Lessee will deliver to Lessor with each Schedule, the
original contract or a certified copy of each User's
contract and copies of insurance certificates as
described in Section 8(c) of this Agreement.
ii. 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.
iii. Lessee will furnish a certificate of an authorized
officer of Lessee stating that he has reviewed the
activities of Lessee and that, to the best of his
knowledge, there 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.
iv. 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 Lessee to the
User of Equipment.
(b) Except as permitted under Section 1(d) of this Agreement,
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, and
Lessee shall not discontinue use of the Equipment
(c) Except as permitted under Section 1(d) of this Agreement,
Lessee will not move any equipment from the location specified
on the Schedule, without the prior written consent of 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 Lessee's 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.
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 of
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.
7. STIPULATED LOSS VALUE: If for any reason any unit of Equipment becomes worn
out, lost, stolen, destroyed, irreparably damaged 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
Agreement on the Payment Date (defined below) for the affected unit. The Payment
Date shall be the next rent payment date 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 shipped to Lessee.
(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
the 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 an 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 reasonably
satisfactory to Lessor.
(c) Lessee shall use reasonable commercial efforts that each User
of the Equipment shall maintain at all times One Million and
00/100 U.S. Dollars ($1,000,000) in liability coverage in
which Lessee is named additional insured and at least One
Hundred Thousand and 00/100 U.S. Dollars ($100,000) in
casualty/property damage coverage with Lessee listed as
additional insured.
(d) Lessee hereby appoints 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 and
execute or endorse all documents, checks or drafts in
connection with insurance payments. Lessor shall not act as
Lessees attorney-in-fact unless Lessee is in default. Lessee
shall pay any reasonable expenses of 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 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
(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 terminate the Lessee's right to
use the Equipment upon ten (10) day's notice to Lessee.
(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, blue prints, 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 defaults under any other material obligation for (A)
borrowed money, (B) the deferred purchase price of property,
or (C) payments due under lease agreements and the same are
not cured within the applicable cure periods; (x) there is any
dissolution, termination of existence, merger, consolidation
or change in controlling ownership of Lessee or any Guarantor;
or (xi) there is a material adverse change in the Lessee's
financial condition as determined solely by the Lessor; or
(xii) Lessee cancels or changes the terms of the lockbox
agreement with Wachovia Bank, N.A. or AmSouth Bank or moves
the lockbox account without Lessor's prior written consent,
which consent will not be unreasonably withheld. The default
declaration shall apply to all Schedules unless specifically
excepted by Lessor.
(b) After a default, at the request of Lessor, Lessee shall (a)
assign to Lessor such licenses, certificates and
authorizations necessary for the operation of the Equipment by
third party Users and (b) comply with the provisions of
Section 9(a). Lessee hereby authorizes Lessor to 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: EXCEPT AS PERMITTED UNDER SECTION 1(D) OF THIS AGREEMENT, 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 if 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
statement by Lessor, Lessors liability or 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 Lessors 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,
acceptance or rejection of Equipment, the ownership of
Equipment during the term of this Agreement, and the delivery,
lease, possession, maintenance, uses, condition, return or
operation of Equipment (including, without limitation, latent
and other defects, whether or not discoverable by Lessor or
Lessee and any claim for patent, trademark or copyright
infringement or environmental damage) or (ii) the condition of
Equipment sold or disposed of after use by Lessee, any
sublessee or employees of Lessee. Lessee shall, upon request,
defend any actions based on, or arising out of, any of the
foregoing.
(b) All of Lessor's rights, privileges and indemnities contained
in this Section 13 shall survive the expiration or other
termination of this Agreement. The rights, privileges and
indemnities contained herein are expressly made for the
benefit of, and shall be enforceable by Lessor, its successors
and assigns.
14. DISCLAIMER: LESSEE ACKNOWLEDGES THAT IT HAS SELECTED THE EQUIPMENT WITHOUT
ANY ASSISTANCE FROM LESSOR, ITS AGENTS OR EMPLOYEES. LESSOR DOES NOT MAKE, HAS
NOT MADE, NOR SHALL BE DEEMED TO MAKE OR HAVE MADE, ANY WARRANTY OR
REPRESENTATION, EITHER EXPRESS OR IMPLIED, WRITTEN OR ORAL, WITH RESPECT TO THE
EQUIPMENT LEASED UNDER THIS AGREEMENT OR ANY COMPONENT THEREOF, INCLUDING,
WITHOUT LIMITATION, ANY WARRANTY AS TO DESIGN, COMPLIANCE WITH SPECIFICATIONS,
QUALITY OF MATERIALS OR WORKMANSHIP, MERCHANTABILITY, FITNESS FOR ANY PURPOSE,
USE OR OPERATION, SAFETY, PATENT, TRADEMARK OR COPYRIGHT INFRINGEMENT, OR TITLE.
All such risks, as between Lessor and Lessee, are to be borne by Lessee. Without
limiting the foregoing, Lessor shall have no responsibility or liability to
Lessee or any other person with respect to any of the following: (i) any
liability, loss or damage caused or alleged to be caused directly or indirectly
by any Equipment, any inadequacy thereof, any deficiency or defect (latent or
otherwise) of the Equipment, or any other circumstance in connection with the
Equipment; (ii) the use, operation or performance of any Equipment or any risks
relating to it; (iii) any interruption of service, loss of business or
anticipated profits or consequential damages; or (iv) the delivery, operation,
servicing, maintenance, repair, improvement or replacement of any Equipment.
15. REPRESENTATIONS AND WARRANTIES OF LESSEE: Lessee makes each of the following
representations and warranties to Lessor on the date hereof and on the date of
execution of each Schedule:
(a) Lessee has adequate power and capacity to enter into, and
perform under, this Agreement and all related documents
(together, the "DOCUMENTS"). Lessee is duly qualified to do
business wherever necessary to carry on its present business
and operations, including the jurisdiction(s) where the
Equipment is or is to be located.
(b) The Documents have been duly authorized, executed and
delivered by Lessee and constitute valid, legal and binding
agreements, enforceable in accordance with their terms, except
to the extent that the enforcement of remedies may be limited
under applicable bankruptcy and insolvency laws.
(c) No approval, consent or withholding of objections is required
from any governmental authority or entity with respect to the
entry into or performance by Lessee of the Documents except
such as have already been obtained.
(d) The entry into and performance by Lessee of the Documents will
not: (i) violate any judgment, order, law or regulation
applicable to Lessee or any provision of Lessee's Certificate
of Incorporation or bylaws; or (ii) result in any breach of,
constitute a default under or result in the creation of any
lien, charge, security interest or other encumbrance upon any
Equipment pursuant to any indenture, mortgage, deed of trust,
bank loan or credit agreement or other instrument (other than
this Agreement) to which Lessee is a party.
(e) There are no suits or proceedings pending or threatened in
court or before any commission, board or other administrative
agency against or affecting Lessee, which if decided against
Lessee will have a material adverse effect on the ability of
Lessee to fulfill its obligations under this Agreement.
(f) The Equipment accepted under any Certificate of Acceptance is
and will remain tangible personal property.
(g) Each financial statement delivered to Lessor has been prepared
in accordance with generally accepted accounting principles
consistently applied. Since the date of the most recent
financial statement, there has been no material adverse
change.
(h) Lessee's exact legal name is as set forth in the first
sentence of this Agreement and Lessee is and will be at all
times validly existing and in good standing under the laws of
the State of its incorporation (specified in the first
sentence of this Agreement).
(i) The Equipment will at all times be used for commercial or
business purposes.
(j) Lessee is and will remain in full compliance with all laws and
regulations applicable to it including, without limitation,
(i) ensuring that no person who owns a controlling interest in
or otherwise controls Lessee is or shall be (Y) listed on the
Specially Designated Nationals and Blocked Person List
maintained by the Office of Foreign Assets Control ("OFAC"),
Department of the Treasury, and/or any other similar lists
maintained by OFAC pursuant to any authorizing statute,
Executive Order or regulation or (Z) a person designated under
Section 1(b), (c) or (d) of Executive Order No. 13224
(September 23, 2001), any related enabling legislation or any
other similar Executive Orders, and (ii) compliance with all
applicable Bank Secrecy Act ("BSA") laws, regulations and
government guidance on BSA compliance and on the prevention
and detection of money laundering violations.
16. OWNERSHIP FOR TAX PURPOSES, GRANT OF SECURITY INTEREST; USURY SAVINGS:
(a) For income tax purposes, the parties hereto agree that it is
their mutual intention that Lessee shall be considered the
owner of the Equipment. Accordingly, Lessor agrees (i) to
treat Lessee as the owner of the Equipment on its federal
income tax return, (ii) not to take actions or positions
inconsistent with such treatment on or with respect to its
federal income tax return, and (iii) not to claim any tax
benefits available to an owner of the Equipment on or with
respect to its federal income tax return. The foregoing
undertakings by Lessor shall not be violated by Lessor's
taking a tax position inconsistent with the foregoing sentence
to the extent such a position is required by law or is taken
through inadvertence so long as such inadvertent tax position
is reversed by Lessor promptly upon its discovery. Lessor
shall in no event be liable to Lessee if Lessee fails to
secure any of the tax benefits available to the owner of the
Equipment.
(b) Lessee hereby grants to Lessor a first security interest in
the Equipment, together with all additions, attachments,
accessions, accessories and accessions thereto and any and all
substitutions, replacements or exchanges therefor, and any and
all insurance and/or other proceeds of the property in and
against which a security interest is granted hereunder. This
security interest is given to secure the payment and
performance of all debts, obligations and liabilities of any
kind whatsoever of Lessee to Lessor, now existing or arising
in the future under this Agreement or any Schedules attached
hereto, and any renewals, extensions and modifications of such
debts, obligations and liabilities.
(c) It is the intention of the parties hereto to comply with any
applicable usury laws to the extent that any Schedule is
determined to be subject to such laws; accordingly, it is
agreed that, notwithstanding any provision to the contrary in
any Schedule or this Agreement, in no event shall any Schedule
require the payment or permit the collection of interest in
excess of the maximum amount permitted by applicable law. If
any such excess interest is contracted for, charged or
received under any Schedule or this Agreement, or in the event
that all of the principal balance shall be prepaid, so that
under any of such circumstances the amount of interest
contracted for, charged or received under any Schedule or this
Agreement shall exceed the maximum amount of interest
permitted by applicable law, then in such event (i) the
provisions of this paragraph shall govern and control, (ii)
neither Lessee nor any other person or entity now or hereafter
liable for the payment hereof shall be obligated to pay the
amount of such interest to the extent that it is in excess of
the maximum amount of interest permitted by applicable law,
(iii) any such excess which may have been collected shall be
either applied as a credit against the then unpaid principal
balance or refunded to Lessee, at the option of the Lessor,
and (iv) the effective rate of interest shall be automatically
reduced to the maximum lawful contract rate allowed under
applicable law as now or hereafter construed by the courts
having jurisdiction thereof. It is further agreed that without
limitation of the foregoing, all calculations of the rate of
interest contracted for, charged or received under any
Schedule or this Agreement which are made for the purpose of
determining whether such rate exceeds the maximum lawful
contract rate, shall be made, to the extent permitted by
applicable law, by amortizing, prorating, allocating and
spreading in equal parts during the period of the full stated
term of the indebtedness evidenced hereby, all interest at any
time contracted for, charged or received from Lessee or
otherwise by Lessor in connection with such indebtedness;
provided, however, that if any applicable state law is amended
or the law of the United States of America preempts any
applicable state law, so that it becomes lawful for Lessor to
receive a greater interest per annum rate than is presently
allowed, the Lessee agrees that, on the effective date of such
amendment or preemption, as the case may be, the lawful
maximum hereunder shall be increased to the maximum interest
per annum rate allowed by the amended state law or the law of
the United States of America.
17. EARLY TERMINATION:
INTENTIONALLY OMITTED
18. EARLY PURCHASE OPTION:
INTENTIONALLY OMITTED
19. END OF LEASE PURCHASE OPTION: Lessee may, at lease expiration, purchase all
(but not less than all) of the Equipment on any Schedule on an AS IS BASIS for
cash equal to the amount indicated on such Schedule (the "OPTION PAYMENT"), plus
all applicable sales taxes. The Option Payment, plus all applicable sales taxes,
shall be due and payable in immediately available funds on the expiration date
of such Schedule, provided that Lessee is not in default and that the Schedule
or this Agreement has not already been terminated.
20. MISCELLANEOUS:
(a) LESSEE AND LESSOR UNCONDITIONALLY WAIVE THEIR RIGHTS TO A JURY
TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING
OUT OF THIS AGREEMENT, ANY OF THE RELATED DOCUMENTS, ANY
DEALINGS BETWEEN LESSEE AND LESSOR RELATING TO THE SUBJECT
MATTER OF THIS TRANSACTION OR ANY RELATED TRANSACTIONS, AND/OR
THE RELATIONSHIP THAT IS BEING ESTABLISHED BETWEEN LESSEE AND
LESSOR. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL
ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY
COURT. THIS WAIVER IS IRREVOCABLE. THIS WAIVER MAY NOT BE
MODIFIED EITHER ORALLY OR IN WRITING. THE WAIVER ALSO SHALL
APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR
MODIFICATIONS TO THIS AGREEMENT, ANY RELATED DOCUMENTS, OR TO
ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THIS TRANSACTION
OR ANY RELATED TRANSACTION. THIS AGREEMENT MAY BE FILED AS A
WRITTEN CONSENT TO A TRIAL BY THE COURT.
(b) Any cancellation or termination by Lessor of this Agreement,
any Schedule, supplement or amendment hereto, or the lease of
any Equipment hereunder shall not release Lessee from any then
outstanding obligations to Lessor hereunder. All Equipment
shall at all times remain personal property even though it may
be attached to real property. The Equipment shall not become
part of any other property by reason of any installation in,
or attachment to, other real or personal property.
(c) Time is of the essence of this Agreement. Lessor's failure at
any time to require strict performance by Lessee of any of the
provisions hereof shall not waive or diminish Lessor's right
at any other time to demand strict compliance with this
Agreement. Lessee agrees, upon Lessor's request, to execute,
or otherwise authenticate, any document, record or instrument
necessary or expedient for filing, recording or perfecting the
interest of Lessor or to carry out the intent of this
Agreement. In addition, Lessee hereby authorizes Lessor to
file a financing statement and amendments thereto describing
the Equipment described in any and all Schedules now and
hereafter executed pursuant hereto and adding any other
Equipment described therein and containing any other
information required by the applicable Uniform Commercial
Code. Lessee irrevocably grants to Lessor the power to sign
Lessee's name and generally to act on behalf of Lessee to
execute and file financing statements and other documents
pertaining to any or all of the Equipment. Lessee hereby
ratifies its prior authorization for Lessor to file financing
statements and amendments thereto describing the Equipment and
containing any other information required by any applicable
law (including without limitation the Uniform Commercial Code)
if filed prior to the date hereof. All notices required to be
given hereunder shall be deemed adequately given if sent by
registered or certified mail to the addressee at its address
stated herein, or at such other place as such addressee may
have specified in writing. This Agreement and any Schedule and
Annexes thereto constitute the entire agreement of the parties
with respect to the subject matter hereof. NO VARIATION OR
MODIFICATION OF THIS AGREEMENT OR ANY WAIVER OF ANY OF ITS
PROVISIONS OR CONDITIONS, SHALL BE VALID UNLESS IN WRITING AND
SIGNED BY AN AUTHORIZED REPRESENTATIVE OF THE PARTIES HERETO.
(d) If Lessee does not comply with any provision of this
Agreement, Lessor shall have the right, but shall not be
obligated, to effect such compliance, in whole or in part. All
reasonable amounts spent and obligations incurred or assumed
by Lessor in effecting such compliance shall constitute
additional rent due to Lessor. Lessee shall pay the additional
rent within five days after the date Lessor sends notice to
Lessee requesting payment. Lessor's effecting such compliance
shall not be a waiver of Lessee's default.
(e) Any rent or other amount not paid to Lessor when due shall
bear interest, from the due date until paid, at the lesser of
eighteen percent (18%) per annum or the maximum rate allowed
by law. Any provisions in this Agreement and any Schedule that
are in conflict with any statute, law or applicable rule shall
be deemed omitted, modified or altered to conform thereto.
Notwithstanding anything to the contrary contained in this
Agreement or any Schedule, in no event shall this Agreement or
any Schedule require the payment or permit the collection of
amounts in excess of the maximum permitted by applicable law.
(f) Lessee hereby irrevocably authorizes Lessor to adjust the
Capitalized Lessor's Cost up or down by no more than ten
percent [10%] within each Schedule to account for equipment
change orders, equipment returns, invoicing errors, and
similar matters. Lessee acknowledges and agrees that the rent
shall be adjusted as a result of the change in the Capitalized
Lessor's Cost. Lessor shall send Lessee a written notice
stating the final Capitalized Lessor's Cost, if it has
changed.
(g) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL IN ALL RESPECTS BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF
CONNECTICUT (WITHOUT REGARD TO THE CONFLICT OF LAWS PRINCIPLES
OF SUCH STATE), INCLUDING ALL MATTERS OF CONSTRUCTION,
VALIDITY AND PERFORMANCE, REGARDLESS OF THE LOCATION OF THE
EQUIPMENT.
(h) Any cancellation or termination by Lessor, pursuant to the
provisions of this Agreement, any Schedule, supplement or
amendment hereto, of the lease of any Equipment hereunder,
shall not release Lessee from any then outstanding obligations
to Lessor hereunder.
(i) To the extent that any Schedule would constitute chattel
paper, as such term is defined in the Uniform Commercial Code
as in effect in any applicable jurisdiction, no security
interest therein may be created through the transfer or
possession of this Agreement in and of itself without the
transfer or possession of the original of a Schedule executed
pursuant to this Agreement and incorporating this Agreement by
reference; and no security interest in this Agreement and a
Schedule may be created by the transfer or possession of any
counterpart of the Schedule other than the original thereof,
which shall be identified as the document marked Original and
all other counterparts shall be marked Duplicate.
(j) Each party hereto agrees to keep confidential, the terms and
provisions of the Documents and the transactions contemplated
hereby and thereby (collectively, the "TRANSACTIONs").
Notwithstanding the foregoing, the obligations of
confidentiality contained herein, as they relate to the
Transactions, shall not apply to the federal tax structure or
federal tax treatment of the Transactions, and each party
hereto (and any employee, representative, or agent of any
party hereto) may disclose to any and all persons, without
limitation of any kind, the federal tax structure and federal
tax treatment of the Transactions. The preceding sentence is
intended to cause each Transaction to be treated as not having
been offered under conditions of confidentiality for purposes
of Section 1.6011-4(b)(3) (or any successor provision) of the
Treasury Regulations promulgated under Section 6011 of the
Internal Revenue Code of 1986, as amended, and shall be
construed in a manner consistent with such purpose. In
addition, each party hereto acknowledges that it has no
proprietary or exclusive rights to the federal tax structure
of the Transactions or any federal tax matter or federal tax
idea related to the Transactions.
(k) It is understood and agreed that Lessee, being a publicly held
company, is obligated to make public disclosure of material
events and if in the judgment of Lessee's securities counsel
such disclosure must be made with respect to this Agreement or
related Documents, then Lessee shall not be prohibited from
making such disclosure, anything else in this Agreement or
related Documents to the contrary notwithstanding.
IN WITNESS WHEREOF, Lessee and Lessor have caused this Agreement to be executed
by their duly authorized representatives as of the date first above written.
LESSOR: LESSEE:
GENERAL ELECTRIC CAPITAL CORPORATION PHOTOMEDEX, INC.
By: /s/ Xxxx Xxxx By: /s/ Xxxxxx XxXxxxx
--------------------------------- -----------------------------
Name: Xxxx Xxxx Name: Xxxxxx XxXxxxx
------------------------------ ----------------------------
Title: Executive Vice President Title: Chief Financial Officer
----------------------------- ---------------------------
EXHIBIT A
TO MASTER LEASE AGREEMENT DATED AS OF JUNE 25, 2004 BETWEEN GENERAL ELECTRIC
CAPITAL CORPORATION AND PHOTOMEDEX, INC.
GE CAPITAL CORPORATION
LIFE SCIENCE FINANCE
APRIL 5, 2004
CONFIDENTIAL LOAN PROPOSAL FOR
--------------------------------------------------------------------------------
PhotoMedex, Inc.
--------------------------------------------------------------------------------
SUBMITTED BY: XXXX XXXXX
Xxxxxx XxXxxxx
PhotoMedex, Inc.
000 Xxxxxxxx Xxxxx
Xxxxxxxxxxxxxxx, XX 00000
Dear Xxxxxx,
GENERAL ELECTRIC CAPITAL CORPORATION ("GE CAPITAL") HAS REVIEWED THE INFORMATION
PROVIDED BY YOU IN CONNECTION WITH THE REQUESTED FINANCING FOR PHOTOMEDEX, INC.
(REFERRED TO AS "PHOTOMEDEX" OR THE "COMPANY"). BASED ON THE REVIEW TO DATE AND
SUBJECT TO THE TIMELY RECEIPT OF A SIGNED COPY OF THIS PROPOSAL LETTER AS
INDICATED BELOW, GE CAPITAL IS PLEASED TO CONSIDER ARRANGING AND PROVIDING A
$2.5 MILLION FINANCING (THE "FINANCING") AS OUTLINED IN THE ATTACHED TERM SHEET
INCORPORATED HEREIN BY REFERENCE, SUBJECT TO THE GENERAL TERMS AND CONDITIONS IN
THIS PROPOSAL LETTER AND THE TERM SHEET.
GE Capital is one of the largest and most diversified financial services
companies in the world with assets exceeding $300 billion and operations in over
45 countries. We have been actively providing equipment financing for Life
Science companies for over a decade. It is our privilege to be a financial
partner to hundreds of Life Science companies.
THIS PROPOSAL LETTER, INCLUDING THE ATTACHED TERM SHEET, IS BEING PROVIDED TO
THE COMPANY ON A CONFIDENTIAL BASIS AND IS MERELY AN INDICATION OF INTEREST
REGARDING THE FINANCING TRANSACTION ON THE GENERAL TERMS AND CONDITIONS OUTLINED
HEREIN AND SHOULD NOT BE CONSTRUED AS A COMMITMENT. GE CAPITAL MAY CHANGE THE
TERMS OF THIS PROPOSAL OR CEASE FUTURE CONSIDERATION OF THE FINANCING AT ANY
TIME WITHOUT LIABILITY TO GE CAPITAL. The attached Term Sheet does not purport
to summarize all of the terms and conditions which the overall facilities are to
be based, which terms and conditions would be contained fully in final
documentation, and indicates only the principal term and conditions under which
the overall financing will be considered.
Company agrees not to utilize this proposal to solicit other offers or to
modify, renegotiate or otherwise improve the terms and conditions of any other
offer heretofore or hereafter received by the Company. Notwithstanding the
foregoing, there is no restriction (either express or implied) on any disclosure
or dissemination of the United States federal income tax structure or aspects of
the transactions contemplated by this proposal or the any documents executed
pursuant hereto. Further, each party hereto acknowledges that it has no
proprietary rights to any United States federal income tax elements of this
proposal or the structure contemplated hereby. In addition, none of such persons
shall, except as required by law, use the name of, or refer to GE Capital, in
any correspondence, discussions, advertisement, press release or disclosure made
in connection with the financing without the prior written consent of GE
Capital.
We thank you for your consideration and look forward to working with you towards
completing this transaction.
TERM SHEET
Lessor: General Electric Capital Corporation its
affiliates or its assignee ("GE Capital")
Lessee: PhotoMedex, Inc.
Credit Facility: Master Lease Line of Credit
Equipment: XTRAC and SIS Laser Units
Line Amount: $2,500,000.00
Initial Draw: To Be Determined
Term: 36 months
Securitization Fee: $50,000.00 (Equivalent to 2% of transaction
amount)
Warrants: 5% of each Draw, to be granted at the time
of each Draw.
Purchase Option: Provided all monies due and
payable Lessor or its assigns have been
received, lessee may purchase the
equipment for One US Dollar ($1 .00US),
return the equipment to Lessor or continue
leasing. Each equipment schedule purchased
or renewed must be done so on an all or
nothing basis.
Equipment: The "Equipment" shall consist of New and
Used XTRAC Laser Equipment, and any other
equipment approved by Lessor. The Company
shall install the Equipment within in a
location disclosed to and approved by the
Lessor within the Continental United States.
A detailed list of the Equipment is to be
provided by Lessee, in electronic format if
possible, together with original vendor
invoices, and, if applicable, cancelled
checks or other proof of payment.
The "Equipment Advance" on new equipment
shall be 100% of Equipment Cost.
Rate: The Lease Rate of Interest shall (i) accrue
on the principal amount outstanding from
time to time, calculated on the basis of a
360 day year comprised of 12 thirty day
months, (ii) be payable monthly in advance,
and (iii) be based on 522 basis points over
the yield for the U.S. Treasury Note
maturing closest to the date which is 3
years from the Commencement Date of each
Note as reported in the Federal Reserve
Statistical Release H 15 (the "Index
Instrument"). Assuming that a Note has a
Commencement Date as of February 2, 2004,
the rate of the applicable Index Instrument
would be 2.36%. To that Index Instrument
rate, 522 basis points would be added,
resulting in a stream rate of 7.58%, which
translates to a Lease rate factor of
3.114410%.
Collateral: Lessee's lease shall be collateralized by
a specific lien on all equipment funded
with the proceeds of each lease, including
the equipment; AIR associated with the
equipment; Assignment of related
contracts.
Assignment
Notification: Notification would be made to the users of
the equipment
Financial Reporting: Monthly Financial Statements, Monthly
listing of contracts, Access to lockbox
Payment Terms: Lessee shall make equal monthly installments
of principal and interest, calculated under
the assumption that all payments shall be
made as and when due, of which the first
payment on each lease schedule shall be due
in advance, and the final payment shall
additionally include any accrued and unpaid
interest and other charges then outstanding.
Lessee will also pay 7.75% of each draw
amount for each draw that is made along with
the first payment under each Lease Schedule.
Takedown Period: The Lease Line of Credit will be
available until the line is fully drawn
subject to Lessor `s mandatory credit
review process every 90-days, wherein the
line of credit is reviewed for extension
at Lessor's sole discretion and subject to
other conditions as Lessor may require. No
individual lease schedule shall be less
than $50,000 per Draw.
Type of Lease: The lease would be a triple net lease,
whereby the Lessee would be responsible for
all expenses related directly or indirectly
to the transaction, including, but not
limited to, maintenance, taxes (other than
the taxes imposed on the net income of the
Lessor), insurance coverage, etc. The Lessee
would be responsible for certain
indemnifications including, but not limited
to, indemnifications against all hazards,
liabilities, damages and risks of loss.
Audit and Costs: Initial and yearly thereafter audit
anticipated to require 1 person 3 to 4 days
at $750 per day
Final Deposit: A Final Deposit of the Securitization Fee is
required upon acceptance of this letter.
Should Lessor approve this transaction, this
fee shall be applied thereto. The
Securitization Fee will be returned to the
Lessee, less reasonable due diligence
expenses to be capped at $5,000.00, promptly
should Lessor decline to approve this
transaction. The fee will be forfeited,
however, should the Lessee decline to close
on this transaction after Lessor has granted
its approval for
GENERAL TERMS AND CONDITIONS
OUR PROPOSAL CONTAINS THE FOLLOWING PROVISIONS AND THE LOAN PAYMENTS WE PROPOSE
ARE SPECIFICALLY BASED UPON THESE PROVISIONS AND OUR ASSUMPTIONS.
1. MAINTENANCE AND INSURANCE: All maintenance and insurance (fire and
theft, extended coverage and liability) are the responsibility of the
Company. Company will be responsible for maintaining in force, all risk
damage, and liability insurance in amounts and coverages satisfactory
to GE Capital.
2. DOCUMENTATION: GE Capital's current standard loan documentation for
this type of collateralized loan will be used.
3. INDEXING: The interest rate will adjust at the time of takedowns to
reflect any changes in lender's cost of funds.
4. TRANSACTION COSTS: By execution and return of this proposal letter, the
Company will be responsible for (i) all of its closing costs, (ii) all
out of pocket fees and expenses incurred by GE Capital in connection
with the Financing under consideration including, without limitation,
actual out-of-pocket expenses associated with engagement of outside
counsel, UCC searches and filings costs, inspection and appraisal fees
and similar costs (iii) the Company will indemnify and hold harmless GE
Capital and its affiliates, officers, directors, employees and agents
(each an "Indemnified Person") against all claims, costs, damages,
liabilities and expenses (each a "Claim") which may be incurred by or
asserted against any of them in connection with this letter, the
Financing, or the matters contemplated in this proposal letter, and
will reimburse each Indemnified Person, upon demand, for any legal or
other expenses incurred in connection with investigating, defending or
participating in any Claim, or any action proceeding relating to such
Claim, and (iv) the Company waves any right to a jury trial in any
action or proceeding brought against GE Capital.
5. ELECTRONIC PAYMENT SYSTEM: GE Capital's standard payment collection
method is through an electronic payment system. An enrollment form will
be provided with Loan documentation.
6. CONFIDENTIALITY: This proposal letter is being provided to the Company
on a confidential basis. Except as required by law, this proposal nor
its contents may be disclosed, except to individuals who are the
Company's officers, employees or advisors who have a need to know of
such matters and then only on the condition that such matters remain
confidential. In addition, none of such persons shall, except as
required by law, use the name of, or refer to GE Capital, in any
correspondence, discussions, advertisement, press release or disclosure
made in connection with the Financing without the prior written consent
of GE Capital.
THIS PROPOSAL EXPRESSES GE CAPITAL'S WILLINGNESS TO SEEK INTERNAL APPROVAL FOR
THE TRANSACTION CONTEMPLATED HEREIN. BY SIGNING AND RETURNING THIS LETTER BOTH
PARTIES ACKNOWLEDGE THAT: THE ABOVE PROPOSED TERMS AND CONDITIONS DO NOT
CONSTITUTE A COMMITMENT BY GE CAPITAL, (II) GE CAPITAL'S SENIOR MANAGEMENT MAY
SEEK CHANGES TO THE ABOVE TERMS AND CONDITIONS, AND (III) GE CAPITAL MAY DECLINE
FURTHER CONSIDERATION OF THIS TRANSACTION AT ANY POINT IN THE APPROVAL PROCESS.
If a commitment were to be given it would be subject to and preceded by a
completion of a legal and business due diligence, as well as collateral and
credit review and analysis, all with results satisfactory to GE Capital and the
closing of any financing would be conditioned upon the prior execution and
delivery of final legal documentation and all conditions precedent acceptable to
GE Capital and its counsel and no material adverse change in the business
condition or prospects of the Company.
I would appreciate the opportunity to discuss this proposal with you at your
earliest convenience. Please do not hesitate to contact me at (000) 000-0000 if
you have any questions or if I can be of any further assistance to you.
Sincerely,
/ s / Xxxx Xxxxx
Xxxx Xxxxx
Vice President
PROPOSAL ACCEPTED BY:
PhotoMedex, Inc.
Name: / s / Xxxxxx XxXxxxx
---------------------------
Title: CFO
---------------------------
Date: April 7, 2004
---------------------------
Federal Tax ID#: 00-0000000
Email Address: xxxxxxxx@xxxxxxxxxx.xxx
