LEASE MANAGEMENT SERVICES, INC.
EQUIPMENT FINANCING AGREEMENT
NUMBER 10826
THIS EQUIPMENT FINANCING AGREEMENT NUMBER 10826 ("Agreement") is dated as of the
date set forth at the foot hereof and is between LEASE MANAGEMENT SERVICES, INC.
("Secured Party") and LJL BIOSYSTEMS, INC. ("Debtor").
1. EQUIPMENT; SECURITY INTEREST. The terms and conditions of this Agreement
cover each item of machinery, equipment and other property (individually an
"Item" or "Item of Equipment" and collectively the "Equipment") described in a
schedule now or hereafter executed by the parties hereto and made a part hereof
(individually a "Schedule" and collectively the "Schedules"). Debtor hereby
grants Secured Party a security interest in and to all Debtor's right, title and
interest in and to the Equipment under the Uniform Commercial Code, such grant
with respect to an Item of Equipment to be as of Debtor's execution of a related
Equipment Financing Commitment referencing this Agreement or, if Debtor then has
no interest in such Item, as of such subsequent time as Debtor acquires an
interest in the Item. Such security interest is granted by Debtor to secure
performance by Debtor of Debtor's obligations to Secured Party hereunder and
under any other agreements under which Debtor has or may hereafter have
obligations to Secured Party. Debtor will ensure that such security interest
will be and remain a sole and valid first lien security interest subject only to
the lien of current taxes and assessment not in default but only if such taxes
are entitled to priority as a matter of law.
2. DEBTOR'S OBLIGATIONS. The obligations of Debtor under this Agreement
respecting an Item of Equipment, except the obligation to pay installment
payments with respect thereto which will commence as set forth in Paragraph 3
below, commence upon the grant to Secured Party of a security interest in the
Item. Debtor's obligations hereunder with respect to an Item of Equipment and
Secured Party's security interest therein will continue until payment of all
amounts due, and performance of all terms and conditions required hereunder
provided, however, that if this Agreement is in default said obligations and
security interest will continue during the continuance of said default. Upon
termination of Secured Party's security interest in an Item of Equipment,
Secured Party will execute such release of interest with respect thereto as
Debtor reasonably requests.
3. INSTALLMENT PAYMENTS AND OTHER PAYMENTS. Debtor will repay advances
Secured Party makes on account of the Equipment in installment payments in the
amounts and at the times set forth in the Schedules, whether or not Secured
Party has rendered an invoice therefor, at the office of Secured Party set forth
at the foot hereof, or to such person and/or at such other place as Secured
Party may from time to time designate by notice to Debtor. Any other amounts
required to be paid Secured Party by Debtor hereunder are due upon Debtor's
receipt of Secured Party's invoice therefor and will be payable as directed in
the invoice. Payments under this Agreement may be applied to Debtor's then
accrued obligations to Secured Party in such order as Secured Party may choose.
4. NET AGREEMENT; NO OFFSET, SURVIVAL. This Agreement is a net agreement,
and Debtor will not be entitled to any abatement of installment payments or
other payments due hereunder or any reduction thereof under any circumstance or
for any reason whatsoever. Debtor hereby waives any and all existing and future
claims, as offsets, against any installment payments or other payments due
hereunder and agrees to pay the installment payments and other amounts due
hereunder as and when due regardless of any offset or claim which may be
asserted by Debtor or on its behalf. The obligations and liabilities of Debtor
hereunder will survive the termination of the Agreement.
5. FINANCING AGREEMENT. THIS AGREEMENT IS SOLELY A FINANCING AGREEMENT.
DEBTOR ACKNOWLEDGES THAT THE EQUIPMENT HAS OR WILL HAVE BEEN SELECTED AND
ACQUIRED SOLELY BY DEBTOR FOR DEBTOR'S PURPOSES, THAT SECURED PARTY IS NOT AND
WILL NOT BE THE VENDOR OF ANY EQUIPMENT
LJL BIOSYSTEMS, INC.
EQUIPMENT FINANCING AGREEMENT #10826
PAGE 2 OF 8
AND THAT SECURED PARTY HAS NOT MADE AND WILL NOT MAKE ANY AGREEMENT,
REPRESENTATION OR WARRANTY WITH RESPECT TO THE MERCHANTABILITY, CONDITION,
QUALIFICATION OR FITNESS FOR A PARTICULAR PURPOSE OR VALUE OF THE EQUIPMENT
OR ANY OTHER MATTER WITH RESPECT THERETO IN ANY RESPECT WHATSOEVER.
6. NO AGENCY. DEBTOR ACKNOWLEDGES THAT NO AGENT OF THE MANUFACTURER OR OTHER
SUPPLIER OF AN ITEM OF EQUIPMENT OR OF ANY FINANCIAL INTERMEDIARY IN CONNECTION
WITH THIS AGREEMENT IS AN AGENT OF SECURED PARTY. SECURED PARTY IS NOT BOUND BY
A REPRESENTATION OF ANY SUCH PARTY AND, AS CONTEMPLATED IN PARAGRAPH 27 BELOW,
THE ENTIRE AGREEMENT OF SECURED PARTY AND DEBTOR CONCERNING THE FINANCING OF THE
EQUIPMENT IS CONTAINED IN THIS AGREEMENT AS IT MAY BE AMENDED ONLY AS PROVIDED
IN THAT PARAGRAPH.
7. ACCEPTANCE. Execution by Debtor and Secured Party of a Schedule covering
the Equipment or any Items thereof will conclusively establish that such
Equipment has been included under and will be subject to all the terms and
conditions of this Agreement. If Debtor has not furnished Secured Party with an
executed Schedule by the earlier of fourteen (14) days after receipt thereof or
expiration of the commitment period set forth in the applicable Equipment
Financing Agreement, Secured Party may terminate its obligation to advance funds
as to the applicable Equipment.
8. LOCATION; INSPECTION; USE. Debtor will keep, or in the case of motor
vehicles, permanently garage and not remove from the United States, as
appropriate, each Item of Equipment in Debtor's possession and control at the
Equipment Location designated in the applicable Schedule, or at such other
location to which such Item may have been moved with the prior written consent
of Secured Party. Whenever requested by Secured Party, Debtor will advise
Secured Party as to the exact location of an Item of Equipment. Secured Party
will have the right to inspect the Equipment and observe its use during normal
business hours, subject to Debtor's security procedures and to enter into and
upon the premises where the Equipment may be located for such purpose. The
Equipment will at all times be used solely for commercial or business purposes
and operated in a careful and proper manner and in compliance with all
applicable laws, ordinances, rules and regulations, all conditions and
requirements of the policy or policies of insurance required to be carried by
Debtor under the terms of this Agreement and all manufacturer's instructions and
warranty requirements. Any modifications or additions to the Equipment required
by any such governmental edict or insurance policy will be promptly made by
Debtor.
9. ALTERATIONS; SECURITY INTEREST COVERAGE. Without the prior written
consent of Secured Party, Debtor will not make any alterations, additions or
improvements to any Item of Equipment which detract from its economic value or
functional utility, except as may be required pursuant to Paragraph 8 above.
Secured Party's security interest in the Equipment will include all
modifications and additions thereto and replacements and substitutions therefor,
in whole or in part. Such reference to replacements and substitutions will not
grant Debtor greater rights to replace or substitute than are provided in
Paragraph 11 below or as may be allowed upon the prior written consent of
Secured Party.
10. MAINTENANCE: Debtor will maintain the Equipment in good repair, condition
and working order. Debtor will also cause each Item of Equipment for which a
service contract is generally available to be covered by such a contract which
provides coverage's typical to property of the type involved and is issued by a
competent servicing entity.
11. LOSS AND DAMAGE; CASUALTY VALUE. In the event of the loss of, theft of,
requisition of, damage to or destruction of an Item of Equipment ("Casualty
Occurrence"), Debtor will give Secured Party prompt notice thereof and will
thereafter place such Item in good repair,
LJL BIOSYSTEMS, INC.
EQUIPMENT FINANCING AGREEMENT #10826
PAGE 3 OF 8
condition and working order, provided, however, that if such Item is
determined by Secured Party to be lost, stolen, destroyed or damaged beyond
repair, is requisitioned or suffers a constructive total loss as defined in
any applicable insurance policy carried by Debtor in accordance with
Paragraph 14 below, Debtor, at Secured Party's option, will (a) replace
such Item with like Equipment in good repair, condition and working order
whereupon such replacement equipment will be deemed such Item for all
purposes hereof or (b) pay Secured Party the "Casualty Value" of such Item
which will equal the total of (i) all installment payments and other amounts
due from Debtor to Secured Party at the time of such payment and (ii)
future installment payments due with respect to such Item with each such
payment including any final uneven payment discounted at a rate equal to the
discount rate of the Federal Reserve Bank of San Francisco from the date due
to the date of such payment.
Upon such replacement or payment, as appropriate, this Agreement and Secured
Party's security interest will terminate with, and only with, respect to the
Item of Equipment so replaced or as to which such payment is made in accordance
with Paragraph 2 above.
12. TITLING; REGISTRATION. Each item of Equipment subject to title
registration laws will at all times be titled and/or registered by Debtor as
Secured Party's agent and attorney-in-fact with full power and authority to
register (but without power to affect title to) the Equipment in such manner and
in such jurisdiction or jurisdictions as Secured Party directs. Debtor will
promptly notify Secured Party of any necessary or advisable retitling and/or
reregistration of an Item of Equipment in a jurisdiction other than the one in
which such Item is then titled and/or registered. Any and all documents of
title will be furnished or caused to be furnished Secured Party by Debtor within
sixty (60) days of the date any titling or registering or restating or
reregistering, as appropriate, is directed by Secured Party.
13. TAXES. Debtor will make all filings as to and pay when due all personal
property and other ad valorem taxes and all other taxes, fees, charges and
assessments based on the ownership or use of the Equipment and will pay as
directed by Secured Party or reimburse Secured Party for all other taxes,
including, but not limited to, gross receipt taxes (exclusive of federal and
state taxes based on Secured Party's net income, unless such net income taxes
are in substitution for or relieve Debtor from any taxes which Debtor would
otherwise be obligated to pay under the terms of this Paragraph 13), fees,
charges and assessments whatsoever, however designated, whether based on the
installment payments or other amounts due hereunder, levied, assessed or imposed
upon the Equipment or otherwise related hereto or to the Equipment, now or
hereafter levied, assessed or imposed under the authority of a federal, state,
or local taxing jurisdiction, regardless of when and by whom payable. Filings
with respect to such other amounts will, at Secured Party's option, be made by
Secured Party or by Debtor as directed by Secured Party.
14. INSURANCE. Debtor will procure and continuously maintain all risk
insurance against loss or damage to the Equipment from any cause whatsoever for
not less than the full replacement value thereof naming Secured Party as Loss
Payee. Such insurance must be in a form and with companies approved by Secured
Party, must provide at least thirty (30) days advance written notice to Secured
Party of cancellation, change or modification in any term, condition, or amount
of protection provided therein, must provide full breach of warranty protection
and must provide that the coverage is "primary coverage" (does not require
contribution from any other applicable coverage). Debtor will provide Secured
Party with an original policy or certificate evidencing such insurance. In the
event of an assignment of this Agreement of which Debtor has notice, Debtor will
cause such insurance to provide the same protection to the assignee as its
interests may appear. The proceeds of such insurance, at the option of the
Secured Party or such assignee, as appropriate, will be applied toward (a)
repair or replacement of the appropriate Item or Items of Equipment, (b) payment
of the Casualty Value thereof and/or (c) payment of, or as provision for,
satisfaction of any other accrued obligations of Debtor hereunder. Debtor
hereby appoints Secured Party as Debtor's attorney-in-fact with full power and
authority to do all things, including, but not limited to, making claims,
receiving payments and endorsing documents, checks or drafts, necessary to
secure payments due under any policy contemplated hereby on account of a
Casualty Occurrence. Debtor and Secured Party
LJL BIOSYSTEMS, INC.
EQUIPMENT FINANCING AGREEMENT #10826
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contemplate that the jurisdictions where the Equipment will be located will
not impose any liability upon Secured Party for personal injury and/or
property damage resulting out of the possession, use, operation or condition
of the Equipment. In the event Secured Party determines that such is not or
may not be the case with respect to a given jurisdiction, Debtor will provide
Secured Party with public liability and property damage coverage applicable
to the Equipment in such amounts and in such form as Secured Party requires.
15. SECURED PARTY'S PAYMENT. If Debtor fails to pay any amounts due hereunder
or to perform any of its other obligations under this Agreement, Secured Party
may, at its option, but without any obligation to do so, pay such amounts or
perform such obligations, and Debtor will reimburse Secured Party the amount of
such payment or cost of such performance, plus interest at 1.5% per month.
16. INDEMNITY. Debtor does hereby assume liability for and does agree to
indemnify, defend, protect, save and keep harmless Secured Party from and
against any and all liabilities, losses, damages, penalties, claims, actions,
suits, costs, expenses and disbursements, including court costs and legal
expenses, of whatever kind and nature, imposed on, incurred by or asserted
against Secured Party (whether or not also indemnified against by any other
person) in any way relating to or arising out of this Agreement or the
manufacture, financing, ownership, delivery, possession, use, operation,
condition or disposition of the Equipment by Secured Party or Debtor, including,
without limitation, any claim alleging latent and other defects, whether or not
discoverable by Secured Party or Debtor, and any other claim arising out of
strict liability in tort, whether or not in either instance relating to an event
occurring while Debtor remains obligated under this Agreement, and any claim for
patent, trademark or copyright infringement. Debtor agrees to give Secured
Party and Secured Party agrees to give Debtor notice of any claim or liability
hereby indemnified against promptly following learning thereof.
17. DEFAULT. Any of the following will constitute an event of default
hereunder: (a) Debtor's failure to pay when due any installment payment or
other amount due hereunder, which failure continues for ten (10) days after
the due date thereof; (b) Debtor's default in performing any other
obligation, term or condition of this Agreement or any other agreement
between Debtor and Secured Party or default under any further agreement
providing security for the performance by Debtor of its obligations hereunder
provided such default has continued for more than twenty (20) days, except as
provided in (c) and (d) hereinbelow, or, without limiting the generality of
subparagraph (l) hereinbelow, default under any lease or any mortgage or
other instrument contemplating the provision of financial accommodation
applicable to the real property where an Item of Equipment is located; (c)
any writ or order of attachment or execution or other legal process being
levied on or charged against any Item of Equipment and not being released or
satisfied within ten (10) days; (d) Debtor's failure to comply with its
obligations under Paragraph 14 above or any transfer by Debtor in violation
of Paragraph 21 below; (e) a non-appealable judgment for the payment of
money in excess of $100,000 being rendered by a court of record against
Debtor which Debtor does not discharge or make provision for discharge in
accordance with the terms thereof within ninety (90) days from the date of
entry thereof; (f) death or judicial declaration of incompetency of Debtor,
if an individual; (g) the filing by Debtor of a petition under the
Bankruptcy Code or any amendment thereto or under any other insolvency law or
law providing for the relief of debtors, including, without limitation, a
petition for reorganization, arrangement or extension, or the commission by
Debtor of an act of bankruptcy; (h) the filing against Debtor of any such
petition not dismissed or permanently stayed within thirty (30) days of the
filing thereof; (i) the voluntary or involuntary making of an assignment of
substantial portion of its assets by Debtor for the benefit of creditors,
appointment of a receiver or trustee for Debtor or for any of Debtor's
assets, institution by or against Debtor or any other type of insolvency
proceeding (under the Bankruptcy Code or otherwise) or of any formal or
informal proceeding for dissolution, liquidation, settlement of claims
against or winding up of the affairs of Debtor, Debtor's cessation of
business activities or the making by Debtor of a transfer of all or a
material portion of Debtor's assets or inventory not in the ordinary course
of business; (j) the occurrence of any event described in parts (e), (f),
(g), (h) or (i) hereinabove with respect to any
LJL BIOSYSTEMS, INC.
EQUIPMENT FINANCING AGREEMENT #10826
PAGE 5 OF 8
guarantor or other party liable for payment or performance of this Agreement;
(k) any certificate, statement, representation, warranty or audit heretofore
or hereafter furnished with respect hereto by or on behalf of Debtor or any
guarantor or other party liable for payment or performance of this Agreement
proving to have been false in any material respect at the time as of which
the facts therein set forth were stated or certified or having omitted any
substantial contingent or unliquidated liability or claim against Debtor or
any such guarantor or other party; (l) breach by Debtor of any lease or
other agreement providing financial accommodation under which Debtor or its
property is bound; or (m) a transfer of effective control of Debtor, if an
organization.
18. REMEDIES. Upon the occurrence of an event of default, Secured Party will
have the rights, options, duties and remedies of a Secured Party, and Debtor
will have the rights and duties of a debtor, under the Uniform Commercial Code
(regardless of whether such Code or a law similar thereto has been enacted in a
jurisdiction wherein the rights or remedies are asserted) and, without limiting
the foregoing, Secured Party may exercise any one or more of the following
remedies: (a) declare the Casualty Value or such lesser amount as may be set
by law immediately due and payable with respect to any or all Items of Equipment
without notice or demand to Debtor; (b) xxx from time to time for and recover
all installment payments and other payments then accrued and which accrue during
the pendency of such action with respect to any or all Items of Equipment; (c)
take possession of and, if deemed appropriate, render unuseable any or all Items
of Equipment, without demand or notice, wherever same may be located, without
any court order or other process of law and without liability for any damages
occasioned by such taking of possession and remove, keep and store the same or
use and operate or lease the same until sold; (d) require Debtor to assemble
any or all Items of Equipment at the Equipment Location therefor, or at such
location to which such Equipment may have been moved with the written consent of
Secured Party or such other location in reasonable proximity to either of the
foregoing as Secured Party designates; (e) upon ten (10) days notice to Debtor
or such other notice as may be required by law, sell or otherwise dispose of any
Item of Equipment, whether or not in Secured Party's possession, in a
commercially reasonable manner at public or private sale at any place deemed
appropriate and apply the net proceeds of such sale, after deducting all costs
of such sale, including, but not limited to, costs of transportation,
repossession, storage, refurbishing, advertising and brokers' fees, to the
obligations of Debtor to Secured Party hereunder or otherwise, with Debtor
remaining liable for any deficiency and with any excess being returned to
Debtor; (f) upon thirty (30) days notice to Debtor, retain any repossessed or
assembled Items of Equipment as Secured Party's own property in full
satisfaction of Debtor's liability for the installment payments due hereunder
with respect thereto, provided that Debtor will have the right to redeem such
Items by payment in full of its obligations to Secured Party hereunder or
otherwise or to require Secured Party to sell or otherwise dispose of such Items
in the manner set forth in subparagraph (e) hereinabove upon notice to Secured
Party such thirty (30) day period; or (g) utilize any other remedy available
to Secured Party under the Uniform Commercial Code or similar provision of law
or otherwise at law or in equity.
No right or remedy conferred herein is exclusive of any other right or remedy
conferred herein or by law; but all such remedies are cumulative of every other
right or remedy conferred hereunder or at law or in equity, by statute or
otherwise, and may be exercised concurrently or separately from time to time.
Any sale contemplated by subparagraph (e) of this Paragraph 18 may be adjourned
from time to time by announcement at the time and place appointed for such sale,
or for any such adjourned sale, without further published notice, Secured Party
may bid and become the purchaser at any such sale. Any sale of an Item of
Equipment, whether under said subparagraph or by virtue of judicial proceedings,
will operate to divest all right, title, interest, claim and demand whatsoever;
either at law or in equity, of Debtor in and to said item and will be a
perpetual bar to any claim against such Item, both at law and in equity, against
Debtor and all persons claiming by, through or under Debtor.
19. DISCONTINUANCE OF REMEDIES. If Secured Party proceeds to enforce any
right under this Agreement and such proceedings are discontinued or abandoned
for any reason or are
LJL BIOSYSTEMS, INC.
EQUIPMENT FINANCING AGREEMENT #10826
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determined adversely, then and in every such case Debtor and Secured Party
will be restored to their former positions and rights hereunder.
20. SECURED PARTY'S EXPENSES. Debtor will pay Secured Party all costs and
expenses, including attorney's fees and court costs and sales costs not offset
against sales proceeds under Paragraph 18 above, incurred by Secured Party in
exercising any of its rights or remedies hereunder or enforcing any of the
terms, conditions or provisions hereof. This obligation includes the payment or
reimbursement of all such amounts whether an action is ultimately filed and
whether an action is ultimately dismissed.
21. ASSIGNMENT. Without the prior written consent of Secured Party, Debtor
will not sell, lease, pledge or hypothecate, except as provided in this
Agreement, any Item of Equipment or any interest therein or assign, transfer,
pledge, or hypothecate this Agreement or any interest in this Agreement or
permit the Equipment to be subject to any lien, charge or encumbrance of any
nature except the security interest of Secured Party contemplated hereby.
Debtor's interest herein is not assignable and will not be assigned or
transferred by operation of law. Consent to any of the foregoing prohibited
acts applies only in the given instance and is not a consent to any subsequent
like act by Debtor or any other person.
All rights of Secured Party hereunder may be assigned, pledged, mortgaged,
transferred or otherwise disposed of, either in whole or in part, without notice
to Debtor but always, however, subject to the rights of Debtor under this
Agreement. If Debtor is given notice of any such assignment, Debtor will
acknowledge receipt thereof in writing. In the event Secured Party assigns this
Agreement or the installment payments due or to become due hereunder or any
other interest herein, whether as security for any of its indebtedness or
otherwise, no breach or default by Secured Party hereunder or pursuant to any
other agreement between Secured Party and Debtor, should there be one, will
excuse performance by Debtor of any provision hereof, it being understood that
in the event of such default or breach by Secured Party that Debtor will pursue
any rights on account thereof solely against Secured Party. No such assignee,
unless such assignee agrees in writing, will be obligated to perform any duty,
covenant or condition required to be performed by Secured Party in connection
with this Agreement.
Subject always to the foregoing, this Agreement inures to the benefit of, and is
binding upon, the heirs, legatees, personal representative, successors and
assigns of the parties hereto.
22. MARKINGS; PERSONAL PROPERTY. If Secured Party supplies Debtor with
labels, plates, decals or other markings stating that Secured Party has an
interest in the Equipment, Debtor will affix and keep the same prominently
displayed on the Equipment or will otherwise xxxx the Equipment or its then
location or locations, as appropriate, at Secured Party's request to indicate
Secured Party's security interest in the Equipment. The Equipment is, and at
all times will remain, personal property notwithstanding that the Equipment or
any Item thereof may now be, or hereafter become, in any manner affixed or
attached to, or embedded in, or permanently resting upon real property or any
improvement thereof or attached in any manner to what is permanent as by means
of cement, plaster, nails, bolts, screws or otherwise. If requested by Secured
Party, Debtor will obtain and deliver to Secured Party waivers of interest or
liens in recordable form satisfactory to Secured Party from all persons claiming
any interest in the real property on which an Item of Equipment is or is to be
installed or located.
23. LATE CHARGES. Time is of the essence in this Agreement and if any
Installment Payment is not paid within ten (10) days after the due date
thereof, Secured Party shall have the right to add and collect, and Debtor
agrees to pay: (a) a late charge on and in addition to, such Installment
Payment equal to five percent (5%) of such Installment Payment or a lesser
amount if established by any state or federal statute applicable thereto, and
(b) interest on such Installment Payment from thirty (30) days after the
due date until paid at the highest contract rate enforceable against Debtor
under applicable law but never to exceed eighteen percent (18%) per annum.
LJL BIOSYSTEMS, INC.
EQUIPMENT FINANCING AGREEMENT #10826
PAGE 7 OF 8
24. NON-WAIVER. No covenant or condition of this Agreement can be waived
except by the written consent of Secured Party. Forbearance or indulgence by
Secured Party in regard to any breach hereunder will not constitute a waiver of
the related covenant or condition to be performed by Debtor.
25. ADDITIONAL DOCUMENTS. In connection with and in order to perfect and
evidence the security interest in the Equipment granted Secured Party hereunder
Debtor will execute and deliver to Secured Party such financing statements and
similar documents as Secured Party requests. Debtor authorizes Secured Party
where permitted by law to make filings of such financing statements without
Debtor's signature. Debtor further will furnish Secured Party (a) on a timely
basis, Debtor's future financial statements, including Debtor's most recent
annual report, balance sheet and income statement, prepared in accordance with
generally accepted accounting principles, which reports, Debtor warrants, shall
fully and fairly represent the true financial condition of Debtor (b) any
other information normally provided by Debtor to the public and (c) such other
financial data or information relative to this Agreement and the Equipment,
including, without limitation, copies of vendor proposals and purchase orders
and agreements, listings of serial numbers or other identification data and
confirmations of such information, as Secured Party may from time to time
reasonably request. Debtor will procure and/or execute, have executed,
acknowledge, have acknowledged, deliver to Secured Party, record and file such
other documents and showings as Secured Party deems necessary or desireable to
protect its interest in and rights under this Agreement and interest in the
Equipment. Debtor will pay as directed by Secured Party or reimburse Secured
Party for all reasonable filing, search, title report, legal and other fees
incurred by Secured Party in connection with any documents to be provided by
Debtor pursuant to this Paragraph or Paragraph 22 and any further similar
documents Secured Party may procure.
26. DEBTOR'S WARRANTIES. Debtor certifies and warrants that the financial
data and other information which Debtor has submitted, or will submit, to
Secured Party in connection with this Agreement is, or will be at time of
delivery, as appropriate, a materially true and complete statement of the
matters therein contained. Debtor further certifies and warrants: (a) this
Agreement has been duly authorized by Debtor and when executed and delivered by
the person signing on behalf of Debtor below will constitute the legal, valid
and binding obligation, contract and agreement of Debtor enforceable against
Debtor in accordance with its respective terms; (b) this Agreement and each
and every showing provided by or on behalf of Debtor in connection herewith may
be relied upon by Secured Party in accordance with the terms thereof
notwithstanding the failure of Debtor or other applicable party to ensure proper
attestation thereto, whether by absence of a seal or acknowledgment or
otherwise; (c) Debtor has the right, power and authority to grant a security
interest in the Equipment to Secured Party for the uses and purposes herein set
forth and (d) each Item of Equipment will, at the time such Item becomes
subject hereto, be in good repair, condition and working order.
27. ENTIRE AGREEMENT. This instrument with exhibits and related documentation
constitutes the entire agreement between Secured Party and Debtor and will not
be amended, altered or changed except by a written agreement signed by the
parties.
28. NOTICES. Notices under this Agreement must be in writing and must be
mailed by United States mail, certified mail with return receipt requested, duly
addressed, with postage prepaid, to the party involved at its respective address
set forth at the foot hereof or at such other address as each party may provide
on notice to the other from time to time. Notices will be effective when
deposited. Each party will promptly notify the other of any change in that
party's address.
29. GENDER, NUMBER: JOINT AND SEVERAL LIABILITY. Whenever the context of
this Agreement requires, the neuter gender includes the feminine or masculine
and the singular number includes the plural; and whenever the words "Secured
Party" are used herein, they include all assignees of Secured Party, it being
understood that specific reference to "assignee" in Paragraph 14
LJL BIOSYSTEMS, INC.
EQUIPMENT FINANCING AGREEMENT #10826
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above is for further emphasis. If there is more than one Debtor named in
this Agreement, the liability of each will be joint and several.
30. TITLES. The titles to the Paragraphs of this Agreement are solely for the
convenience of the parties and are not an aid in the interpretation of the
instrument.
31. GOVERNING LAW; VENUE. This Agreement will be governed by and construed in
accordance with the laws of the State of California. Venue for any action
related to the Agreement will be in an appropriate court in San Mateo County,
California, to which Debtor consents, or in another county selected by Secured
Party which has jurisdiction over the parties. In the event any provision
hereof is declared invalid, such provision will be deemed severable from the
remaining provisions of this Agreement, which will remain in full force and
effect.
32. TIME. Time is of the essence of this Agreement and for each and all of its
provisions.
In WITNESS WHEREOF, the undersigned have executed this Agreement as of
February 16, 1998.
DEBTOR:
LJL BIOSYSTEMS, INC.
000 Xxxxxx Xxxxx
Xxxxxxxxx, XX 00000
By: /s/ X. X. Xxxxx
-----------------------------------------
Title: Vice President, Finance & Administration
-----------------------------------------
SECURED PARTY:
LEASE MANAGEMENT SERVICES, INC.
0000 Xxxx Xxxx Xxxx, Xxxxx 000
Xxxxx Xxxx, XX 00000
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------------
Title: EVP/General Manager
-----------------------------------------
ADDENDUM TO EQUIPMENT FINANCING AGREEMENT #10826
BETWEEN
LJL BIOSYSTEMS, INC. ("DEBTOR")
AND
LEASE MANAGEMENT SERVICES, INC. ("SECURED PARTY")
The printed form of Equipment Financing Agreement #10826 between the parties
dated February 16, 1998 is amended as follows:
1. In Section 1, line 13, after the second occurrence of "taxes" insert "and
assessment not in default".
2. In Section 2, line 6, before "terms and conditions" insert "material".
3. In Section 2, line 9, before "execute" insert "promptly".
4. In Section 4, line 7, after "Debtor" insert "and Secured Party".
5. In Section 7, line 4, change "Earlier" to "earlier".
6. In Section 9, line 3, before "detract" insert "materially".
7. In Section 15, line 4, after "1.5% per month" add "provided timely notice
of such payment is provided to Debtor".
8. In Section 16, line 11, after "infringement" add "but excluding any claims,
actions or suits alleging or involving negligence or misconduct on the part of
Secured Party."
9. In Section 17, line 4, before "obligation" insert "material".
10. In Section 17, line 5, before "default" insert "Debtor's".
11. In Section 17, line10, after "located" add "provided such default has
continued for more than 20 days".
12. In Section 17, clause (l), insert "material" before "lease" and before
"agreement".
13. In Section 17, clause (m), after "organization" add "; provided however
that if Secured Party consents to such transfer, such transfer shall not
constitute a default herewith and such consent shall not be unreasonably
withheld".
14. In Sectiuon 18, line 10, delete "and, if deemed appropriate, render
unuseable".
15. In Section 18, line 20, before "costs of transportation" insert
"commercially reasonable".
16. In Section 18, clause (f), before "such thirty (30) day period" insert
"fifteen (15) days after the end of".
17. In Section 20, line 1, before "costs and expenses" insert "commercially
reasonable".
18. In Section 24, line 2, after the first occurrence of "Secured Party" add
"and Debtor".
19. In Section 25, line 3, before "requests" insert "reasonably".
20. In Section 25, lines 14 and 15, delete "showings as Secured Party deems
necessary or desireable to protect its interest" and replace with "showings as
reasonably necessary to protect Secured Party's interest".
21. In Section 25, the third line from the bottom, before "filing" insert
"reasonable".
22. In Section 25, after the last sentence, add: "If Debtor has paid all
installment payments and any other amounts owing for a Schedule of Equipment,
Secured Party will promptly file a UCC-2 terminating such security interest in
such Schedule provided Secured Party is reasonably satisfied with Debtor's
credit-worthiness. If Debtor has paid all installment payments and any other
amounts owing for all Schedules, then Secured Party will promptly file a UCC-2
terminating its security interest in all Schedules."
23. In Section 26, line 3, before "true and complete" insert "materially".
24. In Section 31, line 3, after "consents" delete ", or in another court
selected by Secured Party which has jurisdiction over the parties".
IN WITNESS WHEREOF, the undersigned have executed this addendum this 16th day of
February 1998.
DEBTOR: SECURED PARTY:
LJL BIOSYSTEMS, INC. LEASE MANAGEMENT SERVICES, INC.
BY: /s/ X. X. Xxxxx BY: /s/ Xxxxxxx X. Xxxxxx
------------------------------ ------------------------------
Xxxxxxx X. Xxxxxx
TITLE: Vice President, Finance TITLE: EVP/ General Manager
& Administration
