MASTER LEASE AGREEMENT
COMDISCO, INC. - LESSOR
MASTER LEASE AGREEMENT dated November 15, 1994 by and between COMDISCO, INC.
("Lessor") and Endocardial Solutions, Inc. ("Lessee").
IN CONSIDERATION of the mutual agreements described below, the parties agree as
follows (all capitalized terms are defined in Section 14-19):
1. Property Leased.
Lessor leases to Lessee all of the Equipment described on each Schedule.
In the event of a conflict, the terms of a Schedule prevail over this Master
Lease.
2. Term.
On the Commencement Date, Lessee will be deemed to accept the Equipment,
will be bound to its rental obligations for each item of Equipment and the term
of a Schedule will begin and continue through the Initial Term and thereafter
until terminated by either party upon prior written notice received during the
Notice Period. No termination may be effective prior to the expiration of the
Initial Term.
3. Rent and Payment.
Rent is due and payable in advance, in immediately available funds, on the
first day of each Rent Interval to the payee and at the location specified in
Lessor's invoice. Interim Rent is due and payable when invoiced. If any
payment is not made when due, Lessee will pay interest at the Overdue Rate.
Upon Lessee's execution of each Schedule, Lessee will pay Lessor the Advance
specified on the Schedule. The Advance will be credited towards the final Rent
payment if Lessee is not then in default. No interest will be paid on the
Advance.
4. Selection; Warranty and Disclaimer of Warranties.
4.1 Selection. Lessee acknowledges that it has selected the Equipment and
disclaims any remittance upon statements made by the Lessor.
4.2 Warranty and Disclaimer of Warranties. Lessor warrants to Lessee
that, so long as Lessee is not in default, Lessor will not disturb Lessee's
quiet and peaceful possession, and unrestricted use of the Equipment. To the
extent permitted by the manufacturer, Lessor assigns to Lessee during the term
of the Schedule any manufacturer's warranties for the Equipment. LESSOR MAKES
NO OTHER WARRANTY, EXPRESS OR IMPLIED AS TO ANY MATTER WHATSOEVER, INCLUDING,
WITHOUT LIMITATION, THE MERCHANTABILITY OF THE EQUIPMENT OR ITS FITNESS FOR A
PARTICULAR PURPOSE. Lessor is not responsible for any liability, claim, loss,
damage or expense of any kind (including strict liability in tort) caused by the
Equipment except for any loss or damage caused by the negligent acts of Lessor.
In no event is Lessor responsible for special, incidental or consequential
damages.
5. Title; Relocation or Sublease; and Assignment.
5.1 Title. Lessee holds the Equipment subject and subordinate to the
rights of the Owner, Lessor, any Assignee and any Secured Party. Lessee
authorizes Lessor, as Lessee's agent, to prepare, execute and file in Lessee's
name precautionary Uniform Commercial Code financing statements showing the
interest of the Owner, Lessor, and any Assignee or Secured Party in the
Equipment and to insert serial numbers in Schedules as appropriate. Lessee
will, at its expense, keep the Equipment free and clear from any items or
encumbrances of any kind (except any caused by Lessor) and will indemnify and
hold Lessor, Owner, any Assignee and Secured Party harmless from and against any
loss caused by Lessee's failure to do so.
5.2 Relocation or sublease. Upon prior written consent, Lessee may
relocate Equipment to any Location within the continental United States provided
(i) the Equipment will not be used by an entity exempt from federal income tax,
(ii) all additional costs (including any administrative fees, additional taxes
and insurance coverage) are reconciled and promptly paid by Lessee.
Lessee may sublease the Equipment upon the reasonable consent of the Lessor
and the Secured Party. Such consent to sublease will be granted if: (i) Lessee
meets the relocation requirements set out above, (ii) the sublease is expressly
subject and subordinate to the terms of the Schedule, (iii) Lessee assigns its
rights in the sublease to Lessor and the Secured Party as additional collateral
and security, (iv) Lessee's obligation to maintain and insure the Equipment is
not altered, (v) all financing statements required to continue the Secured
Party's prior perfected security interest are filed, and (vi) the sublease is
not to a leasing entity affiliated with the manufacturer of the Equipment
described on the Schedule. Lessor acknowledges Lessee's right to sublease for a
term which extends beyond the expiration of the Initial Term. If Lessee
subleases the Equipment for a term extending beyond the expiration of such
Initial Term of the applicable Schedule, Lessee will remain obligated upon the
expiration of the initial Term to return such
Equipment, or, at Lessor's sole discretion to (i) return like Equipment or (ii)
negotiate a mutually acceptable lease extension or purchase. If the parties
cannot mutually agree upon the terms of an extension or purchase, the term of
the Schedule will extend upon the original terms and conditions until terminated
pursuant to Section 2.
No relocation or sublease will relieve Lessee from any of its obligations
under this Master Lease and the relevant Schedule.
5.3 Assignment by Lessor. The terms and conditions of each Schedule have
been fixed by Lessor in order to permit Lessor to sell and/or assign or transfer
its interest or grant a security interest in each Schedule and/or the Equipment
to a Secured Party or Assignee. In that event, the term Lessor will mean the
Assignee and any Secured Party. However, any assignment, sale, or other
transfer by Lessor will not relieve Lessor of its obligations to Lessee and will
not materially change Lessee's duties or materially increase the burdens or
risks imposed on Lessee. The Lessee consents to and will acknowledge such
assignments in a written notice given to Lessee. Lessee also agrees that:
(a) The Secured Party will be entitled to exercise all of Lessor's rights,
but will not be obligated to perform any of the obligations of Lessor.
The Secured Party will not disturb Lessee's quiet and peaceful
possession and unrestricted use of the Equipment so long as Lessee is
not in default and the Secured Party continues to receive all Rent
payable under the Schedule; and
(b) Lessee will pay all Rent and all other amounts payable to the Secured
Party, despite any defense or claim which it has against Lessor.
Lessee reserves its right to have recourse directly against Lessor for
any defense or claim,
(c) Subject to and without impairment of Lessee's Leasehold rights in the
Equipment, Lessee holds the Equipment for the Secured Party to the
extent of the Secured Party's rights in that Equipment.
6. Net Lease; Taxes and Fees.
6.1 Net Lease. Each Schedule constitutes a net lease. Lessee's
obligation to pay Rent and all other amounts is absolute and unconditional and
is not subject to any abatement, reduction, set-off, defense, counterclaim,
interruption, deferment or recoupment for any reason whatsoever.
6.2 Taxes and Fees. Lessee will pay when due or reimburse Lessor for all
taxes, fees or any other charges (together with any related interest or
penalties not arising from the negligence of Lessor) accrued for or arising
during the term of each Schedule against Lessor, Lessee or the Equipment by any
governmental authority (except only Federal, state and local taxes on the
capital or the net income of Lessor). Lessor will file all personal property
tax returns for the Equipment and pay all property taxes due. Lessee will
reimburse Lessor for property taxes within thirty (30) days of receipt of an
invoice.
7. Care, Use and Maintenance; Attachments and Reconfigurations; and Inspection
by Lessor.
7.1 Care, Use and Maintenance. Lessee will maintain the Equipment in good
operating order and appearance, protect the Equipment from deterioration, other
than normal wear and tear, and will not use the Equipment for any purpose other
than that for which it was designed. If commercially available, Lessee will
maintain in force a standard maintenance contract with the manufacturer of the
Equipment, or another party acceptable to Lessor, and will provide Lessor with a
complete copy of that contract. If Lessee has the Equipment maintained by a
party other than the manufacturer, Lessee agrees to pay any costs necessary for
the manufacturer to bring the Equipment to then current release, revision and
engineering change levels, and to re-certify the Equipment are eligible for
manufacturer's maintenance at the expiration of the lease term. The lease term
will continue upon the same terms and conditions until rectification has been
obtained.
7.2 Attachments and Reconfigurations. Upon receiving the prior written
consent of Lessor, Lessee may reconfigure and install Attachments on the
Equipment. In the event of such a Reconfiguration or Attachment, Lessee will,
upon return of the Equipment, at its expense, restore the Equipment to the
original configuration specified on the Schedule in accordance with the
manufacturer's specifications and in the same operating order, repair and
appearance as when installed (normal wear and tear excluded). If any parts of
the Equipment are removed during a Reconfiguration or Attachment, Lessor may
require Lessee to provide additional security, satisfactory to the Lessor, in
order to ensure performance of Lessee's obligations set forth in this
subsection. Neither Attachments nor parts installed on Equipment in the course
of reconfiguration will be accessions to the Equipment.
7.3 Inspection by Lessor. Upon request, Lessee, during reasonable business
hours and subject to Lessee's security requirements, will make the
Equipment and its related log and maintenance records available to Lessor
for inspection.
8. Representations and Warranties of Lessee. Lessee hereby represents,
warrants and covenants that with respect to the Master Lease and each Schedule
executed hereunder:
(a) The Lessee is a corporation duly organized and validly existing in
good standing under the taws of the jurisdiction of its incorporation,
is duly qualified to do business in each jurisdiction (including the
jurisdiction where the Equipment is, or is to be, located) where its
ownership or lease of property or the conduct of its business requires
such
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qualification; and has full corporate power and authority to hold
property under the Master Lease and each Schedule and to enter into
and perform its obligations under such Lease.
(b) The execution and delivery by the Lessee of the Master Lease and each
Schedule and its performance thereunder have been duty authorized by
all necessary corporate action on the part of the Lessee, and the
Master Lease and each Schedule are not inconsistent with the Lessee's
Certificate of Incorporation or Bylaws, do not contravene any law or
governmental rule, regulation or order applicable to it, do not and
will not contravene any provision of, or constitute a default under,
any indenture, mortgage, contract or other instrument to which it is a
party or by which it is bound, and the Master Lease and each Schedule
constitute legal, valid and binding agreements of the Lessee,
enforceable in accordance with their terms.
(c) There are no actions, suits, proceedings or patent claims pending or,
to the knowledge of the Lessee, threatened against or affecting the
Lessee in any court or before any governmental commission, board or
authority which, if adversely determined, will have a material adverse
effect on the ability of the Lessee to perform its obligations under
the Master Lease and each Schedule.
(d) The Equipment is personal property and when subjected to use by the
Lessee will not be or become fixtures under applicable Law.
(e) The Lessee has no material Liabilities or obligations, absolute or
contingent (individually or in the aggregate), except the Liabilities
and obligations of the Lessee as set forth in the Financial Statements
and Liabilities and obligations which have occurred in the ordinary
course of business, and which have not been, in any case or in the
aggregate, materially adverse to Lessee's ongoing business.
(f) To the best of the Lessee's knowledge, the Lessee owns, possesses, has
access to, or can become licensed on reasonable terms under all
patents, patent applications, trademarks, trade names, inventions,
franchises, licenses, permits, computer software and copyrights
necessary for the operations of its business as now conducted, with no
known infringement of, or conflict with, the rights of others.
(g) All material contracts, agreements and instruments to which the Lessee
is a party are in full force and effect in all material respects, and
are valid, binding and enforceable by the Lessee in accordance with
their respective terms, subject to the effect of applicable bankruptcy
and other similar laws affecting the rights of creditors generally,
and rules of law concerning equitable remedies.
9. Delivery and Return of Equipment.
Lessee hereby assumes the full expense of transportation and in-transit
insurance to Lessee's premises and installation thereat of the Equipment. Upon
termination (by expiration or otherwise) of each Schedule, Lessee shall,
pursuant to Lessor's instructions and at Lessee's full expense (including,
without limitations expenses of transportation and in-transit insurance), return
the Equipment to Lessor in the same operating order, repair, condition and
appearance as when received, less normal depreciation and wear and tear. Lessee
shall return the Equipment to Lessor at its address set forth herein or at such
other address within the continental United States as directed by Lessor,
provided, however, that Lessee's expense shall be Limited to the cost of
returning the equipment to Lessor's address as set forth herein. During the
period subsequent to receipt of a notice under Section 2, Lessor may demonstrate
the Equipment's operation in place and Lessee will supply any of its personnel
as may reasonably be required to assist in the demonstrations.
10. Labeling.
Upon request, Lessee will xxxx the Equipment indicating Lessor's interest.
Lessee will keep all Equipment free from any other marking or labeling which
might be interpreted as a claim of ownership.
11. Indemnity.
Lessee will indemnify and hold Lessor, any Assignee and any Secured Party
harmless from and against any and
all claims, costs, expenses, damages and liabilities, including reasonable
Attorneys' fees, arising out of the ownership (for strict liability in tort
only), selection, possession, leasing, operation, control, use, maintenance,
delivery, return or other disposition of the Equipment. However, Lessee is not
responsible to a party indemnified hereunder for any claims, costs, expenses,
damages and liabilities occasioned by the negligent acts of such indemnified
party. Lessee agrees to carry bodily injury and property damage Liability
insurance during the term of the Master Lease in amounts and against risks
customarily insured against by the Lessee on equipment owned by it. Any amounts
received by Lessor under that insurance will be credited against Lessee's
obligations under this Section.
12. Risk of Loss.
Effective upon delivery and until the Equipment is returned, Lessee
relieves Lessor of responsibility for all risks of physical damage to or Loss or
destruction of the Equipment. Lessee will carry casualty insurance for each
item of Equipment in an amount not less than the Casualty Value. All policies
for such insurance will name the Lessor and any Secured Party as additional
insured and as loss payee, and will provide for at least thirty (30) days prior
written notice to the Lessor of cancellation or
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expiration, and will insure Lessor's interests regardless of any breach or
violation by Lessee of any representation, warranty or condition contained in
such policies and will be primary without right of contribution of any insurance
effected by Lessor. Upon the execution of any Schedule, the Lessee will furnish
appropriate evidence of such insurance acceptable to Lessor.
Lessee will promptly repair any damaged item of Equipment unless such
Equipment has suffered a Casualty Loss. within fifteen (15) days of a Casualty
Loss, Lessee will provide written notice of that Loss to Lessor and Lessee will,
at Lessor's option, either (a) replace the item of Equipment with Like Equipment
and marketable title to the Like Equipment will automatically vest in Lessor or
(b) pay the Casualty Value and after that payment and the payment of all other
amounts due and owing, Lessee's obligation to pay further Rent for the item of
Equipment will cease.
13. Default, Remedies and Mitigation.
13.1 Default. The occurrence of any one or more of the following Events of
Default constitutes a default under a Schedule:
(a) Lessee's failure to pay Rent or other amounts payable by Lessee when
due if that failure continues for five (5) days after written notice;
or
(b) Lessee's failure to perform any other term or condition of the
Schedule or the material inaccuracy of any representation or warranty
made by the Lessee in the Schedule or in any document or certificate
furnished to the Lessor hereunder if that failure or inaccuracy
continues for ten (10) days after written notice; or
(c) An assignment by Lessee for the benefit of its creditors, the failure
by Lessee to pay its debts when due, the insolvency of Lessee, the
filing by Lessee or the filing against Lessee of any petition under
any bankruptcy or insolvency Law or for the appointment of a trustee
or other officer with similar powers, the adjudication of Lessee as
insolvent, the Liquidation of Lessee, or the taking of any action for
the purpose of the foregoing; or
(d) The occurrence of an Event of Default under any Schedule or other
agreement between Lessee and Lessor or its Assignee or Secured Party.
13.2 Remedies. Upon the occurrence of any of the above Events of Default,
Lessor, at its option, may:
(a) enforce Lessee's performance of the provisions of the applicable
Schedule by appropriate court action in law or in equity;
(b) recover from Lessee any damages and or expenses, including Default
Costs;
(c) with notice and demand, recover all sums due and accelerate and
recover the present value of the remaining payment stream of all Rent
due under the defaulted Schedule (discounted at the same rate of
interest at which such defaulted Schedule was discounted with a
Secured Party plus any prepayment fees charged to Lessor by the
Secured Party or, if there is no Secured Party, then discounted at 6%)
together with all Rent and other amounts currently due as liquidated
damages and not as a penalty;
(d) with notice and process of law and in compliance with Lessee's
security requirements, Lessor may enter on Lessee's premises to remove
and repossess the Equipment without being Liable to Lessee for damages
due to the repossession, except those resulting from Lessors, its
assignees', agents' or representatives' negligence; and
(e) pursue any other remedy permitted by law or equity.
The above remedies, in Lessor's discretion and to the extent permitted by
law, are cumulative and may be exercised successively or concurrently.
13.3 Mitigation. Upon return of the Equipment pursuant to the terms of
Section 13.2, Lessor will use its best efforts in accordance with its normal
business procedures (and without obligation to give any priority to such
Equipment) to mitigate Lessor's damages as described below. EXCEPT AS SET FORTH
IN THIS SECTION, LESSEE HEREBY WAIVES ANY RIGHTS NOW OR HEREAFTER CONFERRED BY
STATUTE OR OTHERWISE WHICH MAY REQUIRE LESSOR TO MITIGATE ITS DAMAGES OR MODIFY
ANY OF LESSORS RIGHTS OR REMEDIES STATED HEREIN. Lessor may sell, lease or
otherwise dispose of all or any part of the Equipment at a public or private
sale for cash or credit with the privilege of purchasing the Equipment. The
proceeds from any sale, Lease or other disposition of the Equipment are defined
as either:
(a) if sold or otherwise disposed of, the cash proceeds less the Fair
Market Value of the Equipment at the expiration of the Initial Term
less the Default Costs; or
(b) if leased, the present value (discounted at three points over the
prime rate as referenced in the Wall Street Journal at the time of the
mitigation) of the rentals for a term not to exceed the initial Term,
less the Default Costs.
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Any proceeds will be applied against Liquidated damages and any other sums due
to Lessor from Lessee. However, Lessee is liable to Lessor for, and Lessor may
recover, the amount by which the proceeds are less than the liquidated damages
and other sums due to Lessor from Lessee.
14. Additional Provisions.
14.1 Board Attendance. Lessor or its duly appointed representative will
have the right to attend Lessee's corporate Board of Directors meetings and
Lessee will give Lessor reasonable notice in advance of any special Board of
Directors meeting, which notice will provide an agenda of the subject matter to
be discussed at such board meeting. Lessee will provide Lessor with a certified
copy of the minutes of each Board of Directors meeting within thirty (30) days
following the date of such meeting held during the term of this Lease.
14.2 Financial Statements. Lessee will provide to Lessor the financial
statements specified in this Section, prepared in accordance with generally
accepted accounting principles, consistently applied (the "Financial
Statements"); provided, however, after the effective date of the initial
registration statement covering a public offering of Lessee's securities, the
term "Financial Statements" will be deemed to refer to only those statements
required by the Securities and Exchange Commission, to be provided no less
frequently than quarterly. Lessee will provide to Lessor (i) as soon as
practicable (within thirty (30) days) after the end of each month, the same
information which Lessee provides to its Board of Directors, but which will
include not Less than a monthly income statement, balance sheet and statement of
cash flows, certified by Lessee's Chief Executive or Financial officer to be
true and correct; and (ii) as soon as practicable (and in any event within
ninety (90) days) after the end of each fiscal year, audited balance sheets as
of the end of such year (consolidated if applicable), and related statements of
income or Loss, retained earnings or deficit and changes in the financial
position and capital structure of Lessee for such year, setting forth in
comparative form the corresponding figures for the preceding fiscal year, and
accompanied by an audit report and opinion of the independent certified public
accountants selected by Lessee. Lessee will promptly furnish to Lessor any
additional information (including but not limited to tax returns, income
statements, balance sheets, and names of principal creditors) as Lessor
reasonably believes necessary to evaluate Lessee's continuing ability to meet
financial obligations.
14.3 Obligation to Lease Additional Equipment. Upon notice to Lessee,
Lessor will not be obligated to lease any Equipment which would have a
Commencement Date after said notice if: (i) Lessee is in default under this
Master Lease or any Schedule; (ii) Lessee is in default under any loan
agreement, the result of which would allow the Lender or any secured party to
demand immediate payment of the indebtedness; (iii) there is a material adverse
change in Lessee's credit standing; or (iv) Lessor determines (in reasonable
good faith) that Lessee will be unable to perform its obligations under this
Master Lease.
14.4 Merger and Sate Provisions. Lessee will notify Lessor of any proposed
Merger at (east sixty (60) days prior to the closing date. Lessor may, in its
discretion, either (i) consent to the assignment of the Master Lease and all
relevant Schedules to the successor entity, or (ii) terminate the Master Lease
and all relevant Schedules. If Lessor elects to consent to the assignment,
Lessee and its successor will sign the assignment documentation provided by
Lessor. If Lessor elects to terminate the Master Lease and all relevant
Schedules, then Lessee will pay Lessor all amounts then due and owing and a
termination fee equal to the present value (discounted at 6%) of the remaining
Rent for the balance of the Initial Tern)(s) of all Schedules, and will return
the Equipment in accordance with Section 9.
14.5 Entire Agreement. This Master Lease and associated Schedules
supersede all other oral or written agreements or understandings between the
parties concerning the Equipment including, for example, purchase orders. ANY
AMENDMENT OF THIS MASTER LEASE OR A SCHEDULE, MAY ONLY BE ACCOMPLISHED BY A
WRITING SIGNED BY THE
PARTY AGAINST WHOM THE AMENDMENT IS SOUGHT TO BE ENFORCED.
14.6 No Waiver. No action taken by Lessor or Lessee will be deemed to
constitute a waiver of compliance with any representation, warranty or covenant
contained in this Master Lease or a Schedule. The waiver by Lessor or Lessee of
a breach of any provision of this Master Lease or a Schedule will not operate or
be construed as a waiver of any subsequent breach.
14.7 Binding Nature. Each Schedule is binding upon, and inures to the
benefit of Lessor and its assigns. LESSEE MAY NOT ASSIGN ITS RIGHTS OR
OBLIGATIONS.
14.8 Survival of Obligations. All agreements, obligations including, but
not limited to those arising under Section 6.2, representations and warranties
contained in this Master Lease, any Schedule or in any document delivered in
connection with those agreements are for the benefit of Lessor and any Assignee
or Secured Party and survive the execution, delivery, expiration or termination
of this Master Lease.
14.9 Notices. Any notice, request or other communication to either party by
the other will be given in writing and deemed received upon the earlier of
actual receipt or three days after mailing if mailed postage prepaid by regular
or airmail to Lessor (to the attention of "Lease Administrator") or Lessee, at
the address set out in the Schedule or, one day after it is sent by courier or
on the same day as sent via facsimile transmission, provided that the original
is sent by personal delivery or mail by the receiving party.
14.10 Applicable Law. THIS MASTER LEASE HAS BEEN, AND EACH SCHEDULE WILL
HAVE BEEN MADE, EXECUTED AND DELIVERED IN THE STATE OF ILLINOIS AND WILL BE
GOVERNED AND CONSTRUED FOR ALL PURPOSES IN ACCORDANCE WITH THE LAWS OF THE STATE
OF ILLINOIS WITHOUT GIVING EFFECT TO
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CONFLICT OF LAW PROVISIONS. NO RIGHTS OR REMEDIES REFERRED TO IN ARTICLE 2A OF
THE UNIFORM COMMERCIAL CODE WILL BE CONFERRED ON LESSEE UNLESS EXPRESSLY GRANTED
IN THIS MASTER LEASE OR A SCHEDULE.
14.11 Severability. If any one or more of the provisions of this Master
Lease or any Schedule is for any reason held invalid, illegal or unenforceable,
the remaining provisions of this Master Lease and any such Schedule will be
unimpaired, and the invalid, illegal or unenforceable provision replaced by a
mutually acceptable valid, Legal and enforceable provision that is closest to
the original intention of the parties.
14.12 Counterparts. This Master Lease and any Schedule may be executed in
any number of counterparts, each of which will be deemed an original, but all
such counterparts together constitute one and the same instrument. If Lessor
grants a security interest in all or any part of a Schedule, the Equipment or
sums payable thereunder, only that counterpart Schedule marked "Secured Party's
Original" can transfer Lessor's rights and all other counterparts will be marked
"Duplicate".
14.13 Nonspecified Features and Licensed Products. If the Equipment is
supplied from Lessor's inventory and contains any features not specified in the
Schedule, Lessee grants Lessor the right to remove any such features. Any
removal will be performed by the manufacturer or another party acceptable to
Lessee, upon the request of Lessor, at a time convenient to Lessee, provided
that Lessee will not unreasonably delay the removal of such features.
Lessee will obtain no title to Licensed Products which will at all times
remain the property of the owner of the Licensed Products. A license from the
owner may be required and it is Lessee's responsibility to obtain any required
license before the use of the Licensed Products. Lessee agrees to treat the
Licensed Products as confidential information of the owner, to observe all
copyright restrictions, and not to reproduce or sell the Licensed Products.
14.14 Additional Documents. Lessee will, upon execution of this Master
Lease and as may be requested thereafter, provide Lessor with a secretary's
certificate of incumbency and authority and any other documents reasonably
requested by Lessor. Upon the execution of each Schedule with a purchase price
in, excess of $1,000,000, Lessee will provide Lessor with an opinion from
Lessee's counsel in a form acceptable to Lessor regarding the representations
and warranties in Section 8.
14.15 Electronic Communications. Each of the parties may communicate with
the other by electronic means under mutually agreeable terms.
14.16 Lessor's Right to Match. Lessee's rights under Section 5.2 and 7.2
are subject to Lessor's right to match any sublease or upgrade proposed by a
third party. Lessee will provide Lessor with the terms of the third party
offer and Lessor will have three (3) business days to match the offer. Lessee
will obtain such upgrade from or sublease the Equipment to Lessor if Lessor has
timely matched the third party offer.
14.17 Landlord/Mortgagee Waiver. Lessee agrees to provide Lessor with a
Landlord/Mortgages Waiver with respect to the Equipment. Such waiver shall be
in a form satisfactory to Lessor.
14.18 Equipment Procurement Charges/Progress Payments. Lessee hereby
agrees that Lessor shall not, by virtue of its entering into this Lease, be
required to remit any payments to any manufacturer or other third party until
Lessee accepts the Equipment subject to this Lease.
14.19 Definitions.
ADVANCE - means the amount due to Lessor by Lessee upon Lessee's execution of
each Schedule.
ASSIGNEE - means an entity to whom Lessor has sold or assigned its rights as
owner and Lessor of Equipment.
ATTACHMENT - means any accessory, equipment or device and the installation
thereof that does not impair the original function or use of the Equipment and
is capable of being removed without causing material damage to the Equipment and
is not an accession to the Equipment.
CASUALTY LOSS - means the irreparable Loss or destruction of Equipment.
CASUALTY VALUE - means the greater of the aggregate Rent remaining to be paid
for the balance of the lease term or the Fair Market Value of the Equipment
immediately prior to the Casualty Loss. However, if a Casualty Value Table is
attached to the relevant Schedule its terms will control.
COMMENCEMENT CERTIFICATE - means the Lessor provided certificate which must be
signed by Lessee within ten (10) days of the Commencement Date as requested by
Lessor.
COMMENCEMENT DATE - is defined in each Schedule.
DEFAULT COSTS - means reasonable attorney's fees and remarketing costs resulting
from a Lessee default or Lessor's enforcement of its remedies.
EQUIPMENT - means the property described on a Schedule and any replacement for
that property required or permitted by this Master Lease or a Schedule but not
including any Attachment.
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EVENT OF DEFAULT means the events described in Subsection 13.1.
FAIR MARKET Value means the aggregate amount which would be obtainable in an
arm's length transaction between an informed and written buyer/user and an
informed and writing seller under no compulsion to sell.
INITIAL TERM - means the period of time beginning on the first day of the first
full Rent Interval following the Commencement Date for all items of Equipment
and continuing for the number of Rent Intervals indicated on a Schedule.
INSTALLATION DATE - means the day on which Equipment is installed and qualified
for a commercially available manufacturer's standard maintenance contract or
warranty coverage, if available.
INTERIM RENT - means the pro-rata portion of Rent due for the period from the
Commencement Date through but not including the first day of the first full Rent
Interval included in the initial Term.
LICENSED PRODUCTS - means any software or other licensed products attached to
the Equipment.
LIKE EQUIPMENT - means replacement Equipment which is Lien free and of the same
model, type, configuration and manufacture as Equipment.
LIKE PART - means a substituted part which is then free and of the same
manufacturer and part number as the removed part, and which when installed on
the Equipment will be eligible for maintenance coverage with the manufacturer of
the Equipment.
MERGER - means any consolidation or merger of the Lessee with or into any other
corporation or entity, any sale or conveyance of all or substantially all of the
assets of the Lessee to any other person or entity or any stock acquisition of
the Lessee by any other person or entity.
NOTICE PERIOD - means the time period described in a Schedule during which
Lessee may give Lessor notice of the termination of the term of that Schedule.
OVERDUE RATE - means the lesser of five percent (5%) of the payment due or the
maximum rate permitted by the taw of the state where the equipment is located.
OWNER - means the owner of Equipment.
RECONFIGURATION - means any change to equipment that would upgrade or downgrade
the performance capabilities of the Equipment in any way.
RENT - means the rent, including interim Rent, Lessee will pay for each item of
Equipment expressed in a Schedule either as a specific amount or an amount equal
to the amount which Lessor pays for an item of Equipment multiplied by a lease
rate factor plus all other amounts due to Lessor under this Master Lease or a
Schedule.
RENT SCHEDULE - means a full calendar month or quarter as indicated on a
Schedule.
SCHEDULE - means an Equipment Schedule which incorporates all of the terms and
conditions of this Master Lease and, for purposes of Section 14.12, its
associated Commencement Certificate(s).
SECURED PARTY - means an entity to whom Lessor has granted a security interest
in a Schedule and related Equipment for the purpose of securing a loan.
IN WITNESS WHEREOF, the parties hereto have executed this Master Lease on or as
of the day and year first above written.
ENDOCARDIAL SOLUTIONS, INC. COMDISCO, INC.
as Lessee as Lessor
By: By:
------------------------------ -----------------------------------
Xxxxx Xxxxxxx X.X. Xxxxxxxxx
Title: Title:
-------------------------- ------------------------------
President & CEO President
By:
---------------------------
Xxxxx Xxxxxxx
Title:
------------------------
Controller
7
EXHIBIT A
(MULTIPLE QUARTER DELIVERY
SCHEDULE NO. VL-1
DATED AS OF NOVEMBER 15, 1994
TO MASTER LEASE AGREEMENT DATED AS OF NOVEMBER 15, 1994 (-MASTER LEASE")
LESSEE: ENDOCARDIAL SOLUTIONS, INC. LESSOR: COMDISCO, INC.
XXXXX.XXXXXXX/PHONE NO.: ADDRESS FOR ALL NOTICES:
Xxxxx Xxxxxxx - Controller 0000 Xxxxx Xxxxx Xxxx
phone (000) 000-0000 Xxxxxxxx, XX 00000
fax (000) 000-0000 Attn: Venture Lease Division
ADDRESS FOR NOTICES:
0000 Xxxxxx Xxxx, Xxxxx 000
Xx. Xxxx, XX 00000-0000
Attn: Xxxxx Xxxxxxx
CENTRAL BILLING LOCATION: PAYING AGENT
same as above Comdisco, Inc.
X.X. Xxx 00000
Xxxxxxx, Xxxxxxxx 00000
Attn.:
Lessee Reference No.:______________
(24 digits maximum
LOCATION OF EQUIPMENT: INITIAL TERM: 36 MONTHS
same as above LEASE RATE FACTOR: 3.20%
Attn:
EQUIPMENT (as defined below): ADVANCE: $22,400.00
Item Machine Type/ Serial
No. Qty Manufacturer Feature Description Number Rent
-- --- ------------ ------- ----------- ------ ----
Provided Lessee successfully completes a round of equity
financing of at least $5 million ("Equity Round"), then Lessor
shall finance Equipment specifically approved by Lessor up to an
aggregate purchase price of $700,000.00 which shall be delivered
to and accepted by Lessee commencing on the closing date of the
Equity Round and continuing for 12 months thereafter and for
which Lessor receives vendor Invoices approved for payment not
including upgrades thereto and further excluding custom use
equipment, installation costs and delivery costs, rolling stock,
special tooling, custom equipment, "stand-alone" software, molds
and fungible item 3,- provided, however, $200,000.00 of the
$700,000.00 can be used for software and leasehold improvements.
After the initial six months of the twelve month take down
period, Lessor shall have the right to review Lessee's financial
condition and progress, and at Lessor' a option and discretion
the take down period shall be extended an additional six months
beyond the initial six month period at the same terms and
conditions as contained in this equipment schedule.
1. NOTICE PERIOD: Not less than one hundred twenty (120) days nor more than
twelve (12) months prior to the expiration of the lease term.-
2. EQUIPMENT PURCHASE
Lessee acknowledges that it has either received or approved Lessor's
purchase documentation for the Equipment. The aggregate purchase price referred
to on the face of this Schedule shall include at I Equipment purchased by
Lessor, consisting of amounts financed under Sections (i), (ii) and (iii) below.
(i) NEW EQUIPMENT. Lessor will purchase new Equipment which is
specifically approved by Lessor.
(ii) SALE-LEASEBACK EQUIPMENT. NONE
(iii) USED EQUIPMENT. Lessor will purchase "used" Equipment which is
obtained from a third party by Lessee for its use subject to: (1)
Lessor's prior approval of the Equipment; and (2) at Lessor's
appraised value for such used Equipment.
3. COMMENCEMENT DATE
The Commencement Date for each item of Equipment will be its Installation
Date. Lessee agrees to confirm the Commencement Date by providing Lessor with
invoices containing the Equipment Location, description, serial number and cost,
an acceptance certificate upon acceptance of the Equipment by Lessee, the
Installation Date and Lessee's signature. Lessor will summarize all Invoices
and/or IAFs received in the same calendar month into a Commencement Certificate
in the form attached to this Schedule as Exhibit 1 and the Initial Term will
begin the first day of the calendar month thereafter. Each Commencement
Certificate will incorporate the terms and conditions of the Master Lease and
this Schedule and will constitute a separate Schedule. Notwithstanding the
foregoing, if the Equipment pertains to Sale - Leaseback Equipment, then the
Commencement Date shall be the date that Lessor tenders the Purchase Price.
4. Option to Extend
So long as no Event of Default shall have occurred and be continuing,
Lessee will have the right to extend the Initial Term of this Schedule for a
period of one (1) year by giving Lessor at least one hundred twenty (120) days
written notice prior to the expiration of the Initial Term. In such event, the
rent to be paid during said extended period shall be mutually agreed upon and if
the parties cannot mutually agree, then the Lease shall continue in full force
and effect pursuant to the existing terms and conditions until terminated in
accordance with its terms. This Schedule will continue in effect following said
extended period until terminated by either party upon not Less than one hundred
twenty (120) days prior written notice, which notice shall be effective as of
the Rent Interval next following receipt.
5. Purchase Option
So long as no Event of Default has occurred and is continuing hereunder,
and upon written notice no earlier than twelve (12) months and no later than
one hundred twenty (120) days prior to the expiration of the initial Term,
Lessee will have the option at the expiration of the Initial Term of this
Schedule to purchase all, but not less than all, of the Equipment Listed herein
for a purchase price not to exceed 25% of Lessor's original cost and upon terms
and conditions to be mutually agreed upon by the parties following Lessee's
written notice, plus any taxes applicable at time of purchase. Said purchase
price shalt be paid to Lessor at Least thirty (30) days before the expiration
date of the Initial Term. Title to the Equipment shall automatically pass to
Lessee upon payment in full of the purchase price but, in no event, earlier than
the expiration of the fixed Initial Term. If the parties are unable to agree on
the purchase price or the terms and conditions with respect to said purchase,
then the Lease with respect to this Equipment shall remain in full force and
effect. It is agreed and understood that Lessor is retaining a purchase money
security interest in the Equipment listed herein and this Schedule shall
constitute a Security Agreement under the Uniform Commercial Code of the state
in which the Equipment is located. Lessor and Lessee agree that for purposes of
this paragraph, any Licensed software will not be considered part of the
Equipment.
6. Special Terms
The terms and conditions of the Master Lease Agreement as they pertain to
this Schedule are hereby modified and amended as follows:
a. Section 2, "Term"
In tine 1 after the word "Equipment", add the words "upon Lessee's
execution of an acceptance certificate or an approved invoice for
payment".
In line 2 after the word "begin", add the words "on the first day of
the next Rent Interval".
b. Section 3, "RENT AND PAYMENT"
In line 2 before the words "Interim Rent", add the word "No"; after
the words "Interim Rent", delete the words "is due and payable when
invoiced" and replace with the words "is required".
In line 4 after the words "on the Schedule", add the words "not to
exceed one month's Rent".
c. Section 5.1, "Title"
In line 5 after the word "appropriate", delete the period and add the
words "provided Lessor promptly advises Lessee in writing, except as
provided in Sections 5.2 and 7.2."
d. Section 5.2, "RELOCATION OR SUBLEASE"
In Line 1 before the word "consent", delete the word "reasonable";
after the words "Secured Party", add the words ", which consent shall
not be unreasonably withheld".
To the end of the last paragraph of this Section, add the words ",
except as agreed to by Lessor in writing".
e. Section 5.3, "ASSIGNMENT BY LESSOR"
At the end of subsection (a), delete the word "and"
At the end of subsection (b), add the word "and".
f. Section 7.1, "CARE, USE AND MAINTENANCE"
To the end of this Section, add the followirg:
Lessor agrees that Lessee may self-maintain Equipment, provided the
foregoing requirement regarding recertification will apply to such
self-maintained Equipment."
g. Section 7.2, "ATTACHMENTS AND RECONFIGURATIONS"
In Line 1 after the word "Lessor", add the words "which consent shall
not be unreasonably withheld".
h. Section 8, "REPRESENTATIONS AND WARRANTIES OF LESSEE"
To the end of subsection (b), add the following:
", subject to the effect of applicable bankruptcy and other similar
laws affecting the rights of creditors generally, and rules of law
concerning equitable remedies."
i. Section 12, "RISK OF LOSS"
In Line 8 of the first paragraph after the word "will", insert the
words "upon request,".
In line 3 of the second paragraph after the word "will", insert the
words within the later of the date of Lessee's receipt of insurance
proceeds or thirty (30) days thereafter,".
To the end of this Section, add the following:
"To the extent the insurance proceeds are paid directly to Lessor by
virtue of being named an additional insured under Lessee's equipment
policy, Lessee's obligation to pay Lessor pursuant to the foregoing
shall be decreased by the amount of such insurance proceeds."
j. Section 13.1 (c) "DEFAULT"
In line 1 delete the word "failure" and replace with the word
"inability"
k. Section 13.2, "REMEDIES"
In line 1 before the word "notice", insert the word "written".
l. Section 13.3, "MITIGATION"
In tine 1 of subsection (b), delete the words "three points over the
prime rate as referenced in the Wall Street Journal" and replace with
the words "six percent (6%)"; in Line 2 after the words "Initial
Term", add the words "or any extension thereof,".
m. Section 14.1, "BOARD ATTENDANCE"
In Line 1 after the word ",attend". insert the words "up to two (2)
per year of"; and in line 2 after the word "meetings", insert the
words "up to the expiration of the lease term".
n. Section 14.2, "FINARCIAL STATEMENTS"
In Line 15, delete the words "tax returns".
o. Section 14.3, "OBLIGATION TO LEASE ADDITIONAL EQUIPMENT"
In clause (ii), delete the words "would allow" and replace with the
words "has caused"; at the end of clause (ii), insert the word "; or";
at the end of clause (iii), delete the word "; or" and replace with a
period; delete clause (iv) in its entirety.
p. Section 14.4, "MERGER AND SALE PROVISIONS"
In line 5 after the word "documentation", insert the words "reasonably
requested and".
q. Section 14.7, "BINDING NATURE"
To the end of this Section, add the words "except with the prior
written consent of Lessor and as provided in Section 5.2".
r. Section 14.8, "SURVIVAL OF OBLIGATIONS"
In line 4, insert the word "and" between the words "execution" and
"delivery", delete the words "expiration or termination of this Master
Lease", and add the words "and the agreements and obligations provided
in Sections 6.2 and 11 of this Master Lease shall survive the
termination of the Master Lease".
s. Section 14.19, "DEFINITIONS"
In line 2 of the definition "Casualty Value" after the word "term",
add the words "discounted to present Value using a rule of six percent
(6%)".
To the end of the definition "Installation Date", add the words ", and
Lessee has executed an acceptance certificate".
In line 1 of the definition "Overdue Rate", delete the words, "the
Lesser... payment due" and insert the words "interest at the
Lesser of 18% per annum"
In line 1 of the definition "Rent", delete the words", including
interim Rent,".
In Line 1 of the definition "Schedule" after the words "Equipment
Schedule", insert the words "substantially in the form of Exhibit A"
Master Lease: This Schedule is issued pursuant to the Master Lease identified on
page 1 of this Schedule. All of the terms and conditions of the Master Lease
are incorporated in and made a part of this Schedule as if they were expressly
set forth in this Schedule. The parties hereby reaffirm all of the terms and
conditions of the Master Lease including, without Limitation, the
representations and warranties set forth in Section 8) except as modified herein
by this Schedule. This Schedule may not be amended or rescinded except by a
writing signed by both parties.
Endocardial Solutions, Inc. COMDISCO MEDICAL EQUIPMENT GROUP, INC.
as Lessee as Lessor
By: By:
------------------------------ -----------------------------------
Xxxxx Xxxxxxx X.X. Xxxxxxxxx
Title: Title:
-------------------------- --------------------------------
President & CEO President
By:
----------------------------
Xxxxx Xxxxxxx
Title:
-------------------------
Controller
EXHIBIT 1
COMMENCEMENT CERTIFICATE
This Certificate dated ________ is executed pursuant to Schedule No. _____
to the Master Lease Agreement dated __________between Comdisco, Inc.
("Lessor") and ("Lessee"). All of the terms, conditions, representations and
warranties of the Master Lease and Schedule No. _____ are incorporated
herein and made a part hereof and this Commencement Certificate constitutes a
Schedule for the Equipment described below.
1. EQUIPMENT:
EQUIPMENT
QTY MFGR TYPE/MODEL SERIAL # LOCATION
(See attached Invoices)
2 DATE: (See attached invoices)
3. INITIAL TERM STARTS ON:
4. TOTAL EQUIPMENT COST:
5. RENT:
6. REPRESENTATIONS OF LESSEE:
Each item of Equipment has been delivered to the location indicated above,
tested, inspected, found to be in good working order and accepted by the
Lessee on its Installation Date
MASTER LEASE AGREEMENT
MASTER LEASE AGREEMENT dated Nov 15, 1994 by and between COMDISCO MEDICAL
EQUIPMENT GROUP, INC. ("Lessor") and ENDOCARDIAL SOLUTIONS, ("Lessee").
IN CONSIDERATION of the mutual agreements described below the parties agree as
follows (all capitalized terms are defined in Section 14.13):
1. PROPERTY LEASED AND DEPOSIT.
1.1 PROPERTY LEASED. Lessor leases to Lessee all of the
Equipment described on each Schedule. In the event of a conflict, the
terms of a Schedule prevail over this Master Lease.
1.2 DEPOSIT. Upon the execution of an applicable Schedule,
Lessee will pay to Lessor a Deposit. So long as Lessee is not in
default of the applicable Schedule, Lessor will return the Deposit to
Lessee upon the expiration of the lease term for all items of
Equipment leased under the applicable Schedule. No interest will be
payable by Lessor to Lessee on the Deposit.
2. Term.
On the Commencement Date Lessee will be deemed to accept the
Equipment, will be bound to its rental obligations for each item of
Equipment and the term of a Schedule will begin and continue through
the Initial Term and thereafter until terminated by either party upon
prior written notice received during the Notice Period. No
termination may be effective prior to the expiration of the Initial
Term.
3. Rent and Payment.
Rent is due and payable in advance, in immediately available
funds, on the first day of each Rent Interval to the payee and at the
location specified in Lessor's invoice. Interim Rent is due and
payable when invoiced. If any payment is not made when due, Lessee
will pay interest at the Overdue Rate.
4. Selection and Warranty and Disclaimer of Warranties.
4.1 SELECTION. Lessee acknowledges that it has selected the Equipment
and disclaims any reliance upon statements made by the Lessor.
4.2 WARRANTY AND DISCLAIMER OF WARRANTY Lessor warrants to Lessee
that, so long as Lessee is not in default, Lessor will not disturb Lessee's
quiet and peaceful possession, and unrestricted use of the Equipment. To the
extent permitted manufacturer, Lessor assigns to Lessee during the term of the
Schedule any manufacturers warranties for the Equipment. LESSOR MAKES NO OTHER
WARRANTY, EXPRESS OR IMPLIED AS TO ANY MATTER WHATSOEVER, INCLUDING, WITHOUT
LIMITATION. THE MERCHANTABILITY OF THE EQUIPMENT OR ITS FITNESS FOR A
PARTICULAR PURPOSE. ITS COMPLIANCE WITH GOVERNMENTAL REGULATIONS. Lessor is
not responsible for any liability, claim loss damage or expense of any kind
(including strict inability in loss) caused by the Equipment except for any loss
or damage caused by the negligent acts of Lessor. In no event is Lessor
responsible for special, incidental or consequential damages.
5. Title and Assignment.
5.1 TITLE. Lessee holds the Equipment subject and subordinate to the
rights of the Owner. Lessor any assignee and any Secured Party. Lessee
authorizes Lessor, as Lessee's agent, to prepare, execute and file in Lessee's
name precautionary Uniform Commercial Code financing statements showing the
interest of the Owner, Lessor, and any Assignee or Secured Party in the
Equipment and to insert serial numbers in Schedules as appropriate. Except as
provided in Sections 5.2 and 7.2, Lessee will, at its expense, keep the
Equipment free and clear from any liens or encumbrances of any kind (except any
caused by Lessor) and will indemnify and hold Lessor, Owner, any Assignee and
Secured Party harmless from and against any loss caused by Lessee's failure to
do so.
5.2 RELOCATION OR SUBLEASE. Upon prior written notice, Lessee may
relocate Equipment to any location within the continental United States provided
(i) the Equipment will not be used by an entity exempt from federal income tax
and (if) all
additional costs (including any administrative fees additional taxes and
insurance coverage) are reconciled and promptly paid by Lessee.
Lessee may sublease the Equipment upon the reasonable consent of the
Lessor and the Secured Party. Such consent to sublease will be granted if (i)
Lessee meets the relocation requirements set out above, (ii) the sublease is
expressly subject and subordinate to the terms of the Schedule, (iii) Lessee
assigns its rights in the sublease to Lessor and the Secured Party as additional
collateral security. (iv) Lessee's obligation to maintain and insure the
Equipment is not altered. (v) all financing statements required to continue the
Secured Party's prior acted security interest, are filed and the sublease is not
to a leasing entity affiliated with the manufacturer of the Equipment described
on the Schedule. Lessor acknowledges Lessee's right to sublease for a term
which extends beyond the expiration of the Initial Term. If Lessee subleases
the Equipment for a Term extending beyond the expiration of such Initial Term of
the applicable Schedule, Lessee shall remain obligated upon the expiration of
the Initial Term to return such Equipment, or, at Lessor's sole discretion to
(i) return Like Equipment of (ii) negotiate a mutually acceptable lease
extension or purchase. If the parties cannot mutually agree upon the terms of
an extension or purchase the term of the Schedule will extend upon the original
terms and conditions until terminated pursuant to Section 2.
No relocation or sublease will relieve Lessee from any of its
obligations under this Master Lease and the applicable Schedule.
5.3 ASSIGNMENT BY LESSOR. The terms and conditions of each
Schedule have been fixed by Lessor in order to permit Lessor to sell
and or assign or transfer its interest or grant a security interest in
each Schedule and/or the Equipment to a Secured Party or Assignee. In
that event the term Lessor will mean the Assignee and any Secured
Party. However. any assignment, sale, or other transfer by Lessor
will not relieve Lessor of its obligations to Lessee and will not
materially change Lessee's duties or materially increase the burdens
or risks imposed on Lessee. The Lessee consents to and will
acknowledge such assignments in a written notice given to Lessee.
Lessee also agrees that:
(a) The Secured Party will be entitled to exercise all of
Lessor's rights. but will not be obligated to perform
any of the obligations of Lessor. The Secured Party
will not disturb Lessee's quiet and peaceful possession
and unrestricted use of the Equipment so long as Lessee
is not in default and the Secured Party continues to
receive all Rent, payable under the Schedule;
(b) Lessee will pay all Rent and all other amounts payable
to the Secured Party, despite any defense or claim
which it has against Lessor. Lessee reserves its right
to have recourse directly against Lessor for any
defense or claim: and
(c) Subject to and without impairment of Lessee's leasehold
rights in Equipment, Lessee holds the Equipment for the
Secured Party to the extent of the Secured Party's
rights in that Equipment.
6. Net Lease and Taxes and Fees.
6.1 NET LEASE. Each Schedule constitutes a net lease. Lessee's
obligation to pay Rent and all other amounts is absolute and
unconditional and is not subject to any abatement, reduction, set-off,
defense, counterclaim, interruption, deferment or recoupment for any
reason whatsoever.
6.2 TAXES AND FEES. Lessee will pay when due or reimburse
Lessor to all taxes. fees or any other charges (together with any
related interest or penalties not arising from the negligence of
Lessor) accrued for or arising during the term of each Schedule
against Lessor, Lessee or the Equipment by any governmental authority
(except only Federal, state and local taxes on the capital or the net
income of Lessor). Lessor will file all personal property tax returns
for the Equipment and pay all property taxes due. Lessee will
reimburse Lessor for property taxes within thirty (30) days at receipt
of an invoice.
7. Care, Use and Maintenance, Attachments and Reconfigurations, Inspection
by Lessor, Records and Operating Regulations.
7.1 CARE, USE AND MAINTENANCE. Lessee will maintain the
Equipment in good operating order and appearance, protect the
Equipment from deterioration, other than normal wear and tear, and
will not use the Equipment for any purpose other than that for which
it was designed. If commercially available, Lessee will maintain in
force a standard maintenance contract with the manufacturer of the
Equipment, or another party acceptable to Lessor, and upon request
will provide Lessor with a complete copy of that contract. Lessee's
obligation regarding the maintenance of the Equipment will include,
without limitation, all maintenance and repair, recommended or advised
either by the manufacturer, government agencies or regulatory bodies
and those commonly performed by prudent business and/or professional
practice. Upon return of the Equipment, Lessee will provide a letter
from the manufacturer certifying that the Equipment meets all current
specifications of the manufacturer, is in compliance with all
pertinent governmental or regulatory rules, laws or guidelines for its
operation or use, is qualified for the manufacturer's maintenance
contract and is at then current release, revisions and engineering
change levels. If Lessee has the Equipment maintained by a party
other than the manufacturer. Lessee agrees to pay any costs necessary
for the manufacturer to bring the Equipment to then current release,
revision and engineering change levels, and to identify the Equipment
as eligible for manufacturer's maintenance at the expiration of the
lease term. The lease term will continue upon the same terms and
conditions until rectification, has been obtained.
7.2 ATTACHMENTS AND RECONFIGURATIONS. Upon prior written notice to
Lessor, Lessee may reconfigure and install Attachments on the Equipment.
In the event of ice a Reconfiguration or Attachment, Lessee shall, upon
return of the Equipment, at its expense, restore the Equipment to the
original configuration specified on the Schedule in accordance with the
manufacturer's specifications and in the same operating order. repair and
appearance as when installed (normal wear and tear excluded). If any parts
are removed from the Equipment during the Reconfiguration or Attachment,
the restoration will include, at Lessee's option, the installation of
either the original removed parts or Like Parts. Alternatively. with
Lessor's prior written consent which will not be unreasonably withheld.
Lessee may return the Equipment with any Attachment or upgrade, if any
parts of the Equipment are removed during a Reconfiguration or Attachment,
Lessor may require Lessee to provide additional security, satisfactory to
the Lessor, in order to ensure performance of Lessee's obligations set
forth in this subsection. Neither Attachments nor parts installed on
Equipment in the course of Reconfiguration shall be accessions to the
Equipment.
However, if the Reconfiguration or Attachment (i) adversely affects
Lessor's tax benefits relating to the Equipment; (ii) is not capable of being
removed without causing material damage to the Equipment: or (iii) if at the
time of the Reconfiguration or Attachment the manufacturer does not offer on a
commercial basis a means for the removal of the additional items; then such
Reconfiguration or Attachment is subject to the prior written consent of Lessor.
7.3 INSPECTION BY LESSOR. Upon request, Lessee, during reasonable
business hours and subject to Lessee's security requirements, will make the
Equipment and its related log and maintenance records available to Lessor for
inspection.
7.4 RECORDS. All instruction manuals, published statements of
capabilities and technical specifications, service. maintenance and repair
records, satisfaction. qualification, certification and calibration reports and
other printed material supposed by the manufacturer and related to the
installation and operation of the Equipment will be deemed a part of the
Equipment and Lessee agrees to provide such to Lessor upon request.
7.5 OPERATING REGULATIONS. Lessee warrants that Equipment will be
installed used and operated and otherwise be in compliance with (a) any
established operating procedures therefore of the manufacturer, and all statues,
regulations and orders of any governmental body having power to regain the
Equipment or its use. Lessee agrees that adherence to such installation use,
operation and compliance will be the sole obligation of the Lessee. Lessee will
obtain such licensing and registration of the Equipment as required by Federal,
state or local law or regulation. Any costs of such compliance, licensing and
registration will be determined by Lessee. Lessee further warrants that the
Equipment will be operated only by qualified personnel who are covered by
professional liability insurance in amounts and against risks customarily
insured against in the medical field.
8. Representations and Warranties of Lessee.
Lessee represents and warrants that for the Master Lease and each Schedule:
(a) The execution delivery and performance of the Lessee have been duly
authorized by all necessary corporate action;
(b) The individual executing was duly authorized to do so:
(c) The Master Lease and each Schedule constitute legal, valid and
binding agreements of the Lessee enforceable in accordance with their
terms; and
(d) The Equipment is personal property and when subjected to use by the
Lessee will not be or become fixtures under applicable law.
9. Delivery and Return of Equipment.
Lessee assumes the full expense of transportation and in-transit insurance
to Lessee's premises and for installation of the Equipment. Upon expiration or
termination of each Schedule, Lessee will, at Lessor's instructions and at
Lessee's expense (including transportation and in-transit insurance), have the
Equipment deinstalled, audited by the manufacturer, packed and shipped in
accordance with the manufacturer's specifications and returned to Lessor in the
same operating order repair and appearance as when installed and maintained
pursuant to Section 7 hereof, (ordinary wear and tear excluded), to a location
within the continental led States as directed by Lessor. All items returned to
Lessor in addition to the shipment become property of Lessor.
10. Labeling.
Upon request Lessee will xxxx the Equipment indicating Lessor's interest.
Lessee will keep all Equipment free from any other marking or Labeling which
might be interpreted as a claim of ownership.
11. Indemnity and Liability Insurance.
11.1 INDEMNITY. Lessee will indemnify and hold Lessor, its parent
company, any Assignee and any Secured Party harmless from and against any and
all claims, costs, expenses. damages and liabilities including reasonable
attorney's fees arising out of the ownership (for strict liability in tort
only). selection, possession. leasing, operation. control, use maintenance.
delivery, return or other disposition of the Equipment. However, Lessee is
not responsible to a party indemnified hereunder for any claims, costs,
expenses, damages and liabilities occasioned by the negligent acts of such
indemnified party. Lessee agrees to carry bodily injury and property damage
liability insurance during the term of the Master Lease in amounts and
against risks customarily insured against by the Lessee on equipment owned by
it. Any amounts received by Lessor under that insurance will be credited
against Lessee's obligations under this Section.
11.2 LIABILITY INSURANCE. Effective upon delivery of the Equipment
under the applicable Schedule and during the continuance of the Master Lease
as to the applicable Schedule, Lessee will, at its own expense, carry and
maintain comprehensive general liability insurance including product and
completed operations liability insurance with regard to each item of
Equipment against risks customarily insured against in the medical field.
Such risks will include, without limitations the risks of death, bodily
injury and property damage associated with the Equipment. The amount of such
general liability insurance will not be less than $3,000,000.00 per
occurrence. Lessee agrees to increase the amount of such comprehensive
general liability insurance to remain current with amounts customarily
carried against such risks in the medical field. Such uninsurance
obligations of Lessee will survive the expiration or other termination of the
applicable Schedule with regard to claims which relate back to events
occurring during the lease term of the applicable Schedule. All policies for
such insurance will name the Lessor, its parent company. any Assignee and any
Secured Party as additional insured and will provide for at least thirty (30)
days prior written notice to Lessor of cancellation or expiration. The
Lessee will furnish appropriate evidence of Such insurance.
12. Risk of Loss.
Effective upon delivery and until the Equipment is returned, Lessee
relieves Lessor of responsibility or all risks of physical damage to or loss of
destruction of the Equipment. Lessee will carry casualty insurance for each item
of Equipment in an amount not less the Casualty Value. All policies for such
insurance will name the Lessor and any Secured Party additional insured and as
loss payee and will provide for at least thirty (30) days prior written notice
to the Lessor of cancellation or expiration the Lessee will furnish. appropriate
evidence of such insurance.
Lessee shall promptly repair any damaged item of Equipment unless such
Equipment has suffered a Casually Loss. Within fifteen (15) days of a Casualty
Loss, Lessee will provide written notice of that loss to Lessor and Lessee will,
at Lessor's option either (a) replace the item of Equipment with Like Equipment
and marketable title to the Like Equipment will automatically vest in Lessor or
b) pay the Casualty Value and after that payment and the payment of all other
amounts due and owing, Lessee's obligation to pay further Rent for the item of
Equipment will cease.
13. Default, Remedies and Mitigation.
13.1 DEFAULT. The occurrence of any one or more of the following
Events of Default constitutes a default under a Schedule:
(a) Lessee's failure to pay Rent or other amounts payable by Lessee when
due if that failure continues for then (10) days after written notice;
or
(b) Lessee's failure to perform any other term or condition of the
Schedule or the material inaccuracy of any representation or warranty
made by the Lessee in the Schedule or in any document or certificate
furnished to the Lessor hereunder it that failure or inaccuracy
continues for fifteen (15) days after written notice; or
(c) An assignment by Lessee for the benefit of its creditors, the failure
by Lessee to pay its debts when due, the insolvency of Lessee, the
filing by Lessee or the filing against Lessee of any petition under
any bankruptcy or insolvency law or for the appointment of a trustee
or other officer with similar powers, the adjudication of Lessee as
insolvent, the liquidation of Lessee, or the taking of any action for
the purpose of the foregoing; or
(d) The occurrence of an Event of Default under any Schedule or other
agreement between Lessee and Lessor or its Assignee or Secured Party
13.2 REMEDIES, Upon the Occurrence of any of the above Events of
Default Lessor, at its option, may:
(a) enforce Lessee's performance of the provisions of the applicable
Schedule by appropriate court action in law or in equity:
(b) recover from Lessee any damages and or expenses, including Default
costs;
(c) with notice and demand, recover all sums due and accelerate and
recover the present value of the remaining payment stream of all Rent
due under the defaulted Schedule (discounted at the same rate of
interest at which such defaulted Schedule was discounted with a
Secured Party plus any prepayment fees charged to Lessor by the
Secured Party or, if there is no Secured Party, then discounted at 6%)
together with all Rent and other amounts currently due as liquidated
damages and not as a penalty
(d) with notice and process of law and in compliance with Lessee's
security requirements, Lessor may enter Lessee's premises to remove
and repossess the Equipment without being liable to Lessee for damages
due to the repossession, except those resulting from Lessor's, its
assignees'. agents' or representatives' negligence; and
(e) pursue any other remedy permitted by law or equity.
The above remedies, in Lessor's discretion and to the extent
permitted by law, are cumulative and may be exercised successively or
concurrently.
13.3 MITIGATION. Upon return of the Equipment pursuant to the terms
of Section 13.2, Lessor will use its best efforts in accordance with its normal
business procedures (and without obligation to give any priority to such
Equipment) to renegotiate Lessor's damages as described below. EXCEPT AS SET
FORTH IN THIS SECTION, LESSEE HEREBY WAIVES ANY RIGHTS NOW OR HEREAFTER
CONFERRED BY STATUTE OR OTHERWISE WHICH MAY REQUIRE LESSOR TO MITIGATE ITS
DAMAGES 0R MODIFY ANY OF LESSOR'S RIGHTS OR REMEDIES STATED HEREIN. Lessor
may sell, lease or otherwise dispose of all or any part of the Equipment at a
public or private sale for cash or credit with the privilege of purchasing the
Equipment. The proceeds from any sale, lease or other inspection of the
Equipment are defined as either:
(a) if sold or otherwise disposed of, the cash proceeds less the Fair
Market value of the Equipment at the expiration of the initial Term
less the Default costs; or
(b) if leased, the present value (discounted at three points over the
prime rate as referenced in the WALL STREET JOURNAL at the time of the
mitigation) of the rentals for a term not to exceed the Initial Term,
less the Default Costs.
All proceeds will be applied against liquidated damages and all other sums
due to Lessor from Lessee. However, Lessee is liable to Lessor for, and
Lessor may recover the amount by which the proceeds are less than the
liquidated damages and other sums due to Lessor from Lessee.
14. Additional Provisions.
14.1 ENTIRE AGREEMENT. This Master Lease and associated Schedules
supersede all other oral or written agreements or understandings between the
parties concerning the Equipment including, for example, purchase orders.
ANY AMENDMENT OF THIS MASTER LEASE OR A SCHEDULE, MAY ONLY BE ACCOMPLISHED BY
A WRITING SIGNED BY THE PARTY AGAINST WHOM THE AMENDMENT IS SOUGHT TO BE
ENFORCED.
14.2 NO WAIVER. No action taken by Lessor or Lessee shall be deemed
to constitute a waiver of compliance with any representation warranty or
covenant contained in this Master Lease or a Schedule. The waiver by Lessor or
Lessee of a breach of any provision of this Master Lease or a Schedule will not
operate or be construed as a waiver of any subsequent breach.
14.3 BINDING NATURE. Each Schedule is binding upon, and inures to
the benefit of Lessor and its assigns. LESSEE MAY NOT ASSIGN ITS RIGHTS OR
OBLIGATIONS.
14.4 SURVIVAL OF OBLIGATIONS. All agreements, obligations
including. but not limited to those arising under Section 6.2.
representations and warranties contained its Master Lease, any Schedule or in
any document delivered in connection with agreements are for the benefit of
Lessor and any Assignee or Secured Party and survive the execution, delivery,
expiration or termination of this Master Lease.
14.5 NOTICES. Any notice, request or other communication to either
party by the other will be given in writing and deemed received upon the
earlier of actual receipt or three days after mailing if mailed postage
prepaid by regular or airmail to Lessor (to the attention of "Medical
Equipment Lease Administrator" or Lessee, at in the address set out in the
Schedule or. one day after it is sent by courier or facsimile transmission if
receipt is verified by the receiving party.
14.6 APPLICABLE LAW. THIS MASTER LEASE HAS BEEN AND EACH SCHEDULE
WILL HAVE BEEN MADE EXECUTED AND DELIVERED IN THE STATE OF ILLINOIS AND WILL
BE GOVERNED AND CONSTRUED FOR ALL PURPOSES IN ACCORDANCE WITH THE LAWS OF THE
STATE OF ILLINOIS WITHOUT GIVING EFFECT TO CONFLICT OF LAW PROVISIONS. NO
RIGHTS OR REMEDIES REFERRED TO IN ARTICLE 2A OF THE UNIFORM COMMERCIAL CODE
WILL BE CONFERRED ON LESSEE UNLESS EXPRESSLY GRANTED IN THIS MASTER LEASE OR
A SCHEDULE.
14.7 SEVERABILITY. If any one or more of the provisions of this
Master Lease or a Schedule is for any reason held invalid, illegal or
unenforceable. the remaining provisions of this Master Lease and any such
Schedule will be unimpaired, and the invalid, illegal or unenforceable
provision replaced by a mutually acceptable valid, legal and enforceable
provision that is closest to the original intention of the parties.
14.8 COUNTERPARTS. This Master Lease and any Schedule may be
executed in any number of counterparts, each of which will be deemed an
original, but all such counterparts together constitute one and the same
instrument. If Lessor grants a security interest in all or any part of a
Schedule, the Equipment or sums payable thereunder, only that counterpart
Schedule marked Secured Party's Original can transfer Lessor's rights and all
other counterparts will be marked "Duplicate".
14.9 NONSPECIFIED FEATURES AND LICENSED PRODUCTS. If the Equipment
is supplied from Lessor's inventory and contains any features not specified
in the Schedule, Lessee grants Lessor the right to remove any such features.
Any removal will be performed by the manufacturer or another party acceptable
to Lessee, upon the request of Lessor, at a time convenient to Lessee.
provided that Lessee will not unreasonably delay the removal of such features.
Lessee shall obtain no title to Licensed Products which will at all times
remain the property of the owner of the Licensed Products. A license from the
owner may be required and it is Lessee's responsibility to obtain any required
license before the use of the Licensed Products. Lessee agrees to treat the
licensed products as confidential information of the owner to observe all
copyright restrictions, and not to reproduce or sell the Licensed Products.
14.10 ADDITIONAL DOCUMENTS. Lessee will, upon execution of this
Master Lease and as may be requested thereafter, provide Lessor with a
secretary's certificate of incumbency and authority and any other documents
reasonably requested by Lessor. Upon the execution of each Schedule with an
aggregate Rent in excess of $1,000,000, Lessee will provide Lessor with an
opinion from Lessee's counsel regarding the representations and warranties in
Section 8. Lessee will furnish, upon request, audited financial statements
for the most recent period.
14.11 ELECTRONIC COMMUNICATIONS. Each of the parties may
communicate with the other by electronic means under mutually agreeable terms.
14.12 LESSORS RIGHT TO MATCH. Lessee's rights under Section 5.2
and 7.2 are subject to Lessor's right to match any sublease or upgrade
proposed by a third party. Lessee will provide Lessor with the terms of the
third party offer and Lessor will have three (3) business days to match the
offer. Lessee shall obtain such upgrade from or sublease the Equipment to
Lessor if Lessor has timely matched the third party offer.
14.13 DEFINITIONS.
ASSIGNEE - means an entity to whom Lessor has sold or assigned its rights as
owner and Lessor of Equipment.
ATTACHMENT - means any accessory, equipment or device and the installation
thereof that does not impair the original function or use of the Equipment and
is capable of being removed without causing material damage to the Equipment and
is not an accession to the Equipment.
CASUALTY LOSS - means the irreparable loss or destruction of Equipment.
CASUALTY VALUE - means the greater of the aggregate Rent remaining to be paid
for the balance of the lease term or the Fair Market Value of the Equipment
immediately prior to the Casualty Loss. However, it a Casualty Value Table is
attached to the relevent Schedule its terms will control.
COMMENCEMENT CERTIFICATE - means the Lessor provided certificate which must
be signed by Lessee within ten days of the Commencement Date as requested by
Lessor.
COMMENCEMENT DATE - is defined in each Schedule.
DEFAULT COSTS - means reasonable attorney's fees and remarketing costs reselling
in a Lessee default or Lessor's enforcement of its remedies.
DEPOSIT - means an amount indicated on the applicable Schedule.
EQUIPMENT - means the property described on a Schedule and any replacement for
that property required or permitted by this Master Lease or a Schedule but not
including any Attachment.
EVENT OF DEFAULT - means the events described in Subsection 13.I.
FAIR MARKET VALUE - means the aggregate amount which would be obtainable in an
arm's length transaction between an informed and willing buyer/user and an
informed and willing seller under no compulsion to sell.
INITIAL TERM - means the period of time beginning on the first day of the first
full Rent Interval following the Commencement Date for all items of Equipment
and continuing for the number of Rent Intervals indicated on a Schedule.
INSTALLATION DATE - means the day on which Equipment is installed and qualified
for a commercially available manufacturer's standard maintenance contract or
warranty coverage, if available.
LNTERIM RENT - means the pro-rata portion of Rent due for the period from the
Commencement Date through but not including the first day of the first full Rent
Interval included in the Initial Term.
LICENSED PRODUCTS - means any software or other licensed products attached, to
Like Equipment.
LIKE EQUIPMENT - means replacement Equipment which is lien free and of the same
model. type, configuration and manufacture as Equipment.
LIKE PART -means a substituted part which is lien free and of the same
manufacturer and part number as the removed part, and which when installed on
the Equipment, will be eligible for maintenance coverage with the manufacturer
of the Equipment.
NOTICE PERIOD - means the time period described in a Schedule during which
Lessee may give Lessor notice of the termination of the term of that Schedule.
OVERDUE RATE - means the lesser of 18% per year or the maximum rate permitted by
the law of the state where the Equipment is located.
OWNER - means the owner of Equipment.
RECONFIGURATION - means any change to Equipment that would upgrade or downgrade
the performance capabilities of the Equipment in any way.
RENT - means the rent. including Interim Rent, Lessee will pay for each item of
Equipment expressed in a Schedule either as a specific amount or an amount equal
to the amount which Lessor pays for an item of Equipment multiplied by a lease
rate factor plus all other amounts due to Lessor under this Master Lease or a
Schedule.
RENT INTERVAL - means a full calendar month or quarter as indicated on a
Schedule.
SCHEDULE - means an Equipment Schedule which incorporates all of the terms and
conditions of this Master Lease and, for purposes of Section 14.8, its
associated Commencement Certificate(s).
SECURED PARTY - means an entity to whom Lessor has granted a security interest
in a Schedule and related Equipment for the purpose of securing a loan.
IN WITNESS WHEREOF, the parties hereto have executed this Master Lease on or as
of TIRE CLAY and year first above written.
Endocardial Solutions, Inc. COMDISCO MEDICAL EQUIPMENT GROUP, INC.
as Lessee as Lessor
By: By:
--------------------------- ----------------------------------
Xxxxx Xxxxxxx X.X. Xxxxxxxxx
Title: Title:
--------------------------- ----------------------------------
President & CEO President
By:
---------------------------
Xxxxx Xxxxxxx
Title:
--------------------------
Controller
EXHIBIT A
(MULTIPLE QUARTER DELIVERY
SCHEDULE NO. ME-1
DATED AS OF NOVEMBER 15, 1994
TO MASTER LEASE AGREEMENT DATED AS OF NOVEMBER 15, 1994 (-MASTER LEASE")
LESSEE: ENDOCARDIAL SOLUTIONS, INC. LESSOR: COMDISCO MEDICAL
EQUIPMENT GROUP, INC.
XXXXX.XXXXXXX/PHONE NO.: 000-000-0000 ADDRESS FOR ALL NOTICES:
ADDRESS FOR NOTICES:
0000 Xxxxxx Xxxx, Xxxxx 000 0000 Xxxxx Xxxxx Xxxx
Xx. Xxxx, XX 00000-00X0 Xxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxx Attn: Venture Lease Division
Attn:
CENTRAL BILLING LOCATION: Advance: $16,000.00
Attn:
Lessee Reference No.:_____________________ Lease Rate Factor: 3.20%
(24 digits maximum
Location of Equipment:
Various
EQUIPMENT (as defined below): Initial Term: 36 months
Item Machine Type/ Serial
No. Qty Manufacturer Feature Description Number Rent
--- --- ------------ ------- ----------- ------ ----
Provided Lessee successfully completes a round of equity financing of at
Least $5,000,000.00 ("Equity Round") then Lessor shall finance demo units
assembled by Lessee specifically approved by Lessor up to an aggregate
purchase price of $500,000.00 which shall be delivered to and accepted by
Lessee commencing an the closing date of the Equity Round and continuing for
twelve months thereafter;, and for which Lessor receives vendor invoices
approved for payment, not including upgrades thereto, and further excluding
leasehold improvements, installation costs and delivery costs, rolling stock,
special tooling, stand-alone' software, application software bundled into
computer hardware, hand-held items, molds and fungible Items. After the
initial six months of the twelve month take down period, Lessor shall have
the right to review Lessee's financial condition and progress, and at
Lessor's option and discretion the take down period shall be extended an
additional six months beyond the initial six month period at the same terms
and conditions as contained in this equipment schedule.
1. NOTICE PERIOD: Not less than one hundred twenty (120) days nor more than
twelve (12) months prior to the expiration of the lease term.
2. EQUIPMENT PURCHASE
Lessee acknowledges that it has either received or approved Lessor's
purchase Documentation for the Equipment. The aggregate purchase price referred
to on the face of this Schedule shall include all Equipment purchased by Lessor,
consisting of amounts financed under Sections (i), (ii) and (iii) below.
(i) NEW EQUIPMENT. Lessor will purchase new Equipment which is
specifically approved by Lessor.
(ii) SALE-LEASEBACK EQUIPMENT. NONE
(iii) USED EQUIPMENT. Lessor will purchase "used" Equipment which is
obtained from a third party by Lessee for its use subject to: (1)
Lessor's prior approval of the Equipment; and (2) at Lessor's
appraised value for such used Equipment.
3. COMMENCEMENT DATE
The Commencement Date for each item of Equipment will be its Installation
Date. Lessee agrees to confirm the Commencement Date by providing Lessor
with Invoices containing the Equipment location, description, serial number
and cost, an acceptance certificate upon acceptance of the Equipment by
Lessee, the Installation Date and Lessee's signature. Lessor will summarize
all Invoices and/or IAFs received in the same calendar month into a
Commencement Certificate in the form attached to this Schedule as Exhibit 1
and the Initial Term will begin the first day of the calendar month
thereafter. Each Commencement Certificate will incorporate the terms and
conditions of the Master Lease and this Schedule and will constitute a
separate Schedule. Notwithstanding the foregoing, if the Equipment pertains
to Sale - Leaseback Equipment, then the Commencement Date shall be the date
that Lessor tenders the Purchase Price.
4. OPTION TO EXTEND
So long as no Event of Default shall have occurred and be continuing,
Lessee will have the right to extend the Initial Term of this Schedule for a
period of one (1) year by giving Lessor at least one hundred twenty (120) days
written notice prior to the expiration of the initial Term. In such event, the
rent to be paid during said extended period shall be mutually agreed upon and if
the parties cannot mutually agree, then the Lease shall continue in full force
and effect pursuant to the existing terms and conditions until terminated in
accordance with its terms. This Schedule will continue in effect following said
extended period until terminated by either party upon not less than one hundred
twenty (120) days prior written notice, which notice shall be effective as of
the Rent Interval next following receipt.
5. PURCHASE OPTION
So long as no Event of Default has occurred and is continuing hereunder,
and upon written notice no earlier than twelve (12) months and no later than one
hundred twenty (120) days prior to the expiration of the Initial Term, Lessee
will have the option at the expiration of the Initial Term of this Schedule to
purchase all, but not less than all, of the Equipment listed herein for a
purchase price not to exceed 25% of Lessor's original cost and upon terms and
conditions to be mutually agreed upon by the parties following Lessee's written
notice, plus any taxes applicable at time of purchase. Said purchase price
shall be paid to Lessor at least thirty (30) days before the expiration date of
the Initial Term. Title to the Equipment shall automatically pass to Lessee
upon payment in full of the purchase price but, in no event, earlier than the
expiration of the fixed Initial Term. If the parties are unable to agree on the
purchase price or the terms and conditions with respect to said purchase, then
the Lease with respect to this Equipment shall remain in full force and effect.
It is agreed and understood that Lessor is retaining a purchase money security
interest in the Equipment listed herein and this Schedule shall constitute a
Security Agreement under the Uniform Commercial Code of the state in which the
Equipment is located. Lessor and Lessee agree that for purposes of this
paragraph, any licensed software will not be considered part of the Equipment.
6. SPECIAL TERMS
The terms and conditions of the Master Lease Agreement as they pertain to
this Schedule are hereby modified and amended as follows:
a. Section 1.2, "Deposit"
Delete this Section in its entirety and replace with the following:
"Upon Lessee's execution of this Schedule, Lessee will pay the
additional Advance specified in the Schedule, not to exceed one month's
rent. The Advance will be credited towards the final rent payment if
Lessee is not then in default. No interest will be paid on the
Advance."
b. Section 2, "Term"
In line 2 after the word "Equipment", add the words "upon Lessee's
execution of an acceptance certificate or an approved invoice for
payment".
In line 3 after the word "begin", add the words "on the first day of
the next Rent Interval".
c. Section 3, "Rent and Payment"
In line 3 before the words "Interim Rent", add the word "No"; after
the words "Interim Rent", delete the words "is due and payable when
invoiced" and replace with the words "is required".
d. Section 5.1, "Title"
In line 6 after the word "appropriate", add the words "provided Lessor
promptly advises Lessee in writing".
e. Section 5.2, "Relocation or Sublease",
In line 1, delete the word "notice', and add the words "consent, which
consent shall not be unreasonably withheld".
In lines 2 and 3, delete the words "(i) the Equipment will not be used
by an entity exempt from federal income tax and (ii)".
To the end of the last paragraph of this Section, add the words ",
except as agreed to by Lessor in writing".
f. Section 5.3, "Assignment by Lessor"
At the end of paragraph (a), delete the word "and" At the end of
paragraph (b), add the word "and".
g. Add the following as new Section 6.3, "Tax Indemnification":
"It is understood by the parties hereto that some of the Equipment
listed on this Equipment Schedule will be re-located at Lessee's
customer's premises outside the U.S. Lessee hereby indemnifies
Lessor for any additional taxes, fees, imposts, charges or other
impositions ("Additional Costs") associated with location outside
the U.S. of the Equipment and or payment of rent to Lessor.
Additional Costs include, without limitation, any and all withholding
taxes, VAT, customs fees, transfer taxes, and duties. Lessee hereby
agrees that Lessor will not be considered importer of record at any
time. All necessary documentation to make equipment to move
equipment between countries will clearly state that Lessee is the
importer of record."
h. Section 7.1, "Care, Use and Maintenance"
In line 11, delete the word "manufacturer" and add the word "Lessee".
To the end of this Section, add the following:
Lessor agrees that Lessee may self-maintain equipment, provided the
foregoing requirement regarding recertification will apply to such
self-maintained equipment.
i. Section 7.2, "Attachments and Reconfigurations"
In line 1, delete the word "notice" and insert the words "consent,
which consent shall not be unreasonably withheld".
j. Section 8, "Representations and Warranties of Lessee"
To the end of paragraph (c), add the following:
", subject to the effect of applicable bankruptcy and other similar
laws affecting the rights of creditors generally, and rules of law
concerning equitable remedies"
k. Section 9, "Delivery and Return of Equipment"
To the end of this section, add the following:
Lessor understand that Lessee is assembling component parts which will
ultimately be in the Equipment, and as such Lessor will accept a letter
from the Lessee not the manufacturer as it relates to the auditing, and
shipment specifications of the Equipment. Lessee hereby agrees that it
will use customary and reasonable standards used for equipment of this
type when de-installing, auditing, and shipping the Equipment.
l. Section 12, "Risk of Loss"
In line 7 of the first paragraph after the word "expiration", delete
the period and insert the words "and will insure Lessor's interests
regardless of breach or violation by Lessee of any representation,
warranty or condition contained in such policies and will be primarily
without right of contribution from any insurance effected by Lessor."
In line 7 of the first paragraph after the word "will", insert the
words ", upon request".
In line 3 of the second paragraph after the second appearance of the
word "will" insert the words ", within the later of the date of
Lessee's receipt of insurance proceeds or thirty (30) days
thereafter,".
To the end of this Section, add the following:
"To the extent the insurance proceeds are paid directly to Lessor by
virtue of being named an additional insured under Lessee's equipment
policy, Lessee's obligation to pay Lessor pursuant to the foregoing
shall be decreased by the amount of such insurance proceeds."
m. Section 13.1 "Default"
In line 2 of paragraph (a) , delete the word and number "ten (10)" and
add the word and number "five (5)".
In line 1 of paragraph (c), delete the word "failure" and replace with
the word "inability".
n. Section 13.2, "Remedies"
In line 1 of paragraph (c) before the word "notice", insert the word
"written".
o. Section 13.3, "Mitigation"
In line I of paragraph (b), delete the words "three points over the
prime rate as referenced in the Wall Street Journal" and replace with
the words "six percent (6%)"; in line 2 after the words "Initial Term",
add the words "or any extension thereof,".
p. Section 14.3, "Binding Nature"
To the end of this Section, delete the period and add the words
"except with the prior written consent of Lessor as provided in
Section 5.2."
q. Section 14.4, "Survival of Obligations"
In line 1, delete the words "including but not limited to those" and
insert the words "as well as in Section 11" after the words" arising
under Section 6.2 of this Master Lease".
r. Section 14.13, "Definitions"
In line 1 of the definition "Casualty Value" after the word "term",
add the words "discounted to present value using a rule of six percent
(6%)".
To the end of the definition "Installation Date", add the words ", and
Lessee has executed an acceptance certificate".
In line 1 of the definition "Rent", delete the words ", including
Interim Rent,".
In line 1 of the definition "Schedule" after the words "Equipment
Schedule", insert the words "substantially in the form of Exhibit A".
s. Add the following new sections:
"Section 14.14, "Obligation to Lease Additional Equipment"
Upon notice to Lessee, Lessor will not be obligated to lease any equipment
which would have a Commencement Date after said notice, if (i) Lessee is in
default under this Master Lease or any Schedules, or (ii) Lessee is in
default under any loan agreement , the result of which has caused the
lender or any secured party to demand immediate repayment of the
indebtedness."
"Section 14.15, "Merger and Sale Provisions"
Lessee will notify Lessor of any proposed Merger at least sixty (60) days
prior to the closing date. Lessor may, in its discretion, either (i)
consent to the assignment of the Master Lease and all relevant Schedules to
the successor entity, or (ii) terminate the Master Lease and all relevant
Schedules. If Lessor elects to consent to the assignment, Lessee and its
successor will sign the assignment documentation reasonably requested and
provided by Lessor. If Lessor elects to terminate the Master Lease and all
relevant Schedules, then Lessee will pay Lessor all amounts then due and
owing and a termination fee equal to the present value (discounted at 6%)
of the remaining Rent for the balance of the Initial Term(s) of all
Schedules, and will return the Equipment in accordance with Section 9.11
"Section 14.16, "Financial Statements"
Lessee will provide to Lessor the financial statements specified in this
Section, prepared in accordance with generally accepted accounting
principles, consistently applied (the "Financial Statements',); provided,
however, after the effective date of the initial registration statement
covering a public offering of Lessee's securities, the term "Financial
Statements" will be deemed to refer to only those statements required by
the Securities and Exchange Commission, to be provided no less frequently
than quarterly. Lessee will provide to Lessor (i) as soon as practicable
(within thirty (30) days) after the end of each month, the same information
which Lessee provides to its Board of Directors, but which will include not
less than a monthly income statement, balance sheet and statement of cash
flows, certified by Lessee's Chief Executive or Financial officer to be
true and correct; and (ii) as soon as practicable (and in any event within
ninety (90) days) after the end of each fiscal year, audited balance sheets
as of the end of such year (consolidated if applicable) , and related
statements of income or loss, retained earnings or deficit and changes in
the financial position and capital structure of Lessee for such year,
setting forth in comparative form the corresponding figures for the
preceding fiscal year, and accompanied by an audit report and opinion of
the independent certified public accountants selected by Lessee. Lessee
will promptly furnish to Lessor any additional information (including but
not limited to, income statements, balance sheets, and names of principal
creditors) as Lessor reasonably believes necessary to evaluate Lessee Is
continuing ability to meet financial obligations.,,
"Section 14.17, "Contingency"
The financing of this Equipment Schedule is contingent upon Lessee
executing a blanket lien, giving Lessor a first priority security interest
in all of Lessee's intangible and tangible assets up to lesser of all
outstanding obligations (including, without limitation, principal,
interest, and taxes) due under this Master Lease or $500,000.00 (the
"Secured Amount") provided the Lessee may substitute for the first priority
security interest in such assets by providing to Lessor a first priority
security interest in cash, certificates of deposit, marketable securities
and the like reasonably acceptable to the Lessor in an amount equal to the
Secured Amount.*
Master Lease: This Equipment Schedule is issued pursuant to the Master Lease
identified on page I hereof. All of the terms, conditions, representations and
warranties of the Master Lease are hereby incorporated herein and made a part
hereof as if they were expressly set forth in this Equipment Schedule. By their
execution and delivery of this Equipment Schedule, the parties hereby reaffirm
all of the terms, conditions, representations and warranties of the Master Lease
(including, without limitation, the representations and warranties set forth in
Section 8 thereof) except as modified herein.
Endocardial Solutions, Inc. COMDISCO MEDICAL EQUIPMENT GROUP, INC.
as Lessee as Lessor
By: By:
--------------------------------- ----------------------------------
Xxxxx Xxxxxxx X.X. Xxxxxxxxx
Title: Title:
------------------------------ ------------------------------
President & CEO President
By:
-----------------------------
Xxxxx Xxxxxxx
Title:
-----------------------------
Controller
*Section 11.2, "Liability Insurance"
It is the understanding of lessee and lessor that, not withstanding the terms of
this section to the contrary, lessee shall not be required to obtain product
liability insurance until such time as lessee begins operation of Equipment with
human subjects.
EXHIBIT 1
COMMENCEMENT CERTIFICATE
This Certificate dated November 15, 1994 is executed pursuant to Schedule
No. ME-1 to the Master Lease Agreement dated November 15, 1994 between Comdisco
Medical Equipment Group, Inc. ("Lessor") and Endocardial Solutions, Inc.
("Lessee"). All of the terms, conditions, representation and warranties of the
Master Lease Agreement and Equipment Schedule No. ME-1 are incorporated herein
and made a part hereof and this Commencement Certificate constitutes a Schedule
for the Equipment described below.
1. EQUIPMENT:
EQUIPMENT
QTY MFGR TYPE/MODEL SERIAL # LOCATION
(See attached Invoices)
2 DATE: (See attached invoices)
3. INITIAL TERM STARTS ON:
4. TOTAL EQUIPMENT COST:
5. RENT:
6. REPRESENTATIONS OF LESSEE:
Each item of Equipment has been delivered to the location indicated above,
tested, inspected, found to be in good working order and accepted by the
Lessee on its Installation Date
EXHIBIT A
MEDICAL EQUIPMENT
EQUIPMENT SCHEDULE NO. ME-2 DATED AS OF October 28, 1996
TO MASTER LEASE AGREEMENT DATED AS OF November 15, 1994 ("MASTER LEASE")
LESSEE: ENDOCARDIAL SOLUTIONS, INC. LESSOR: COMDISCO MEDICAL
EQUIPMENT GROUP, INC.
ADMIN. CONTACT/PHONE NO.: 000-000-0000
ADDRESS FOR NOTICES: ADDRESS FOR ALL NOTICES:
0000 Xxxxxx Xxxx, Xxxxx 000 0000 Xxxxx Xxxxx Xxxx
Xx. Xxxx, XX 00000-0000 Xxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx Xxxxxxx Attn: Marketing Support
Corporate
ATTN:
CENTRAL BILLING LOCATION: ADVANCE: $12,540.00
ATTN:
LESSEE REFERENCE NO.:
(24 digits maximum) LEASE RATE
FACTOR: 3.135%
LOCATION OF EQUIPMENT:
various
INITIAL
TERM: 36 months
EQUIPMENT (as defined below):
ITEM MACHINE TYPE/ SERIAL QUARTERLY
NO. QTY. MANUFACTURER FEATURE DESCRIPTION NUMBER RENT
-- ---- ------------ ------- ----------- ------ ----
Lessor shall finance demo units assembled by Lessor specifically approved by
lessor up to an aggregate purchase price of $400,000.00 which shall be
delivered to and accepted by Lessee during the period from the date hereof
through July 31, 1997, and for which Lessor receives vendor invoices approved
for payment, not including upgrades thereto, and further excluding leasehold
improvements, installation costs and delivery costs, rolling stock, special
tooling, "stand-alone" software, application software bundled into computer
hardware, hand-held items, molds and fungible items.
1. NOTICE PERIOD: Not less than one hundred twenty (120) days nor more
than twelve (12) months prior to the expiration of the lease term.
2. EQUIPMENT PURCHASE
Lessee acknowledges that it has either received or approved Lessor's
purchase documentation for the Equipment. The aggregate purchase price referred
to on the face of this Schedule shall include all Equipment purchased by Lessor,
consisting of amounts financed under Sections (i), (ii) and (iii) below.
(i) NEW EQUIPMENT. Lessor will purchase new Equipment which is
specifically approved by Lessor.
(ii) SALE-LEASEBACK EQUIPMENT. NONE
(iii) USED EQUIPMENT. Lessor will purchase "used" Equipment which is
obtained from a third party by Lessee for its use subject to:
(1) Lessor's prior approval of the Equipment; and (2) at
Lessor's appraised value for such used Equipment.
3. COMMENCEMENT DATE
The Commencement Date for each item of Equipment will be its
Installation Date. Lessee agrees to confirm the Commencement Date by
providing Lessor with Invoices containing the Equipment location,
description, serial number and cost, an acceptance certificate upon
acceptance of the Equipment by Lessee, the Installation Date and Lessee's
signature. Lessor will summarize all Invoices and/or IAFs received in the
same calendar month into a Commencement Certificate in the form attached to
this Schedule as Exhibit 1 and the Initial Term will begin the first day of
the calendar month thereafter. Each Commencement Certificate will
incorporate the terms and conditions of the Master Lease and this Schedule
and will constitute a separate Schedule. Notwithstanding the foregoing, if
the Equipment pertains to Sale - Leaseback Equipment, then the Commencement
Date shall be the date that Lessor tenders the Purchase Price.
4. OPTION TO EXTEND
So long as no Event of Default shall have occurred and be continuing,
Lessee will have the right to extend the Initial Term of this Schedule for a
period of one (1) year by giving Lessor at least one hundred twenty (120) days
written notice prior to the expiration of the Initial Term. In such event, the
rent to be paid during said extended period shall be mutually agreed upon and if
the parties cannot mutually agree, then the Lease shall continue in full force
and effect pursuant to the existing terms and conditions until terminated in
accordance with its terms. This Schedule will continue in effect following said
extended period until terminated by either party upon not less than one hundred
twenty (120) days prior written notice, which notice shall be effective as of
the Rent Interval next following receipt.
5. PURCHASE OPTION
So long as no Event of Default has occurred and is continuing
hereunder, and upon written notice no earlier than twelve (12) months and no
later than one hundred twenty (120) days prior to the expiration of the
Initial Term, Lessee will have the option at the expiration of the Initial
Term of this Schedule to purchase all, but not less than all, of the
Equipment listed herein for a purchase price not to exceed 25!k of Lessor's
original cost and upon terms and conditions to be mutually agreed upon by the
parties following Lessee's written notice, plus any taxes applicable at time
of purchase. Said purchase price shall be paid to Lessor at least thirty
(30) days before the expiration date of the Initial Term. Title to the
Equipment shall automatically pass to Lessee upon payment in full of the
purchase price but, in no event, earlier than the expiration of the fixed
Initial Term. If the parties are unable to agree on the purchase price or
the terms and conditions with respect to said purchase, then the Lease with
respect to this Equipment shall remain in full force and effect. It is agreed
and understood that Lessor is retaining a purchase money security interest in
the Equipment listed herein and this Schedule shall constitute a Security
Agreement under the Uniform Commercial Code of the state in which the
Equipment is located. Lessor and Lessee agree that for purposes of this
paragraph, any licensed software will not be considered part of the Equipment.
6 SPECIAL TERMS
The terms and conditions of the Master Lease Agreement as they pertain
to this Schedule are hereby modified and amended as follows:
a. Section 1.2, "Deposit"
Delete this Section in its entirety and replace with the following:
"Upon Lessee's execution of this Schedule, Lessee will pay the
additional Advance specified in the Schedule, not to exceed one
month's rent. The Advance will be credited towards the final rent
payment if Lessee is not then in default.
No interest will be paid on the Advance."
b. Section 2, "Term"
In line 2 after the word "Equipment", add the words "upon Lessee's
execution of an acceptance certificate or an approved invoice for
payment".
In line 3 after the word "begin", add the words "on the first day of
the next Rent Interval".
c. Section 3, "Rent and Payment"
In line 3 before the words "Interim Rent", add the word "No"; after the
words "Interim Rent", delete the words "is due and payable when
invoiced" and replace with the words "is required".
d. Section 5.1, "Title"
In line 6 after the word "appropriate", add the words "provided Lessor
promptly advises Lessee in writing".
e. Section 5.2, "Relocation or Sublease"
In line 1, delete the word "notice" and add the words "consent, which
consent shall not be unreasonably withheld".
In lines 2 and 3, delete the words "(i) the Equipment will not be used
by an entity exempt from federal income tax and (ii)".
To the end of the last paragraph of this Section, add the words ",
except as agreed to by Lessor in writing".
f. Section 5.3, "Assignment by Lessor"
At the end of paragraph (a), delete the word "and
At the end of paragraph (b), add the word "and".
g. Add the following as new Section 6.3, "Tax Indemnification":
"It is understood by the parties hereto that some of the Equipment
listed on this Equipment Schedule will be re-located at Lessee's
customer's premises outside the U.S. Lessee hereby indemnifies Lessor
for any additional taxes, fees, imposts, charges or other impositions
("Additional Costs") associated with location outside the U.S. of the
Equipment and or payment of rent to Lessor. Additional Costs include,
without limitation, any and all withholding taxes, VAT, customs fees,
transfer taxes, and duties. Lessee hereby agrees that Lessor will not
be considered importer of record at any time. All necessary
documentation to make equipment to move equipment between countries
will clearly state that Lessee is the importer of record."
h. Section 7.1, "Care, Use and Maintenance"
In line 11, delete the word "manufacturer" and add the word "Lessee".
To the end of this Section, add the following:
Lessor agrees that Lessee may self-maintain equipment, provided the
foregoing requirement regarding recertification will apply to such
self-maintained equipment."
i. Section 7.2, "Attachments and Reconfigurations"
In line 1, delete the word "notice" and insert the words "consent,
which consent shall not be unreasonably withheld".
j. Section 8, "Representations and Warranties of Lessee"
To the end of paragraph (c), add the following:
", subject to the effect of applicable bankruptcy and other similar
laws affecting the rights of creditors generally, and rules of law
concerning equitable remedies."
k. Section 9, "Delivery and Return of Equipment"
To the end of this section, add the following:
Lessor understand that Lessee is assembling component parts which will
ultimately be in the Equipment, and as such Lessor will accept a letter
from the Lessee not the manufacturer as it relates to the auditing, and
shipment specifications of the Equipment. Lessee hereby agrees that it
will use customary and reasonable standards used for equipment of this
type when deinstalling, auditing, and shipping the Equipment.
l. Section 11.2, "Liability Insurance"
It is the understanding of Lessee and Lessor that, not withstanding the
terms of this section to the contrary, Lessee shall not be required to
obtain product liability insurance until such time as Lessee begins
operation of Equipment with human subjects.
m. Section 12, "Risk of Loss"
In line 7 of the first paragraph after the word "expiration", delete
the period and insert the words "and will insure Lessor's interests
regardless of breach or violation by Lessee of any representation,
warranty or condition contained in such policies and will be primarily
without right of contribution from any insurance effected by Lessor."
In line 7 of the first paragraph after the word "will", insert the
words upon request".
In line 3 of the second paragraph after the second appearance of the
word "will", insert the words ", within the later of the date of
Lessee's receipt of insurance proceeds or thirty (30) days
thereafter,".
To the end of this Section, add the following:
"To the extent the insurance proceeds are paid directly to Lessor by
virtue of being named an additional insured under Lessee's equipment
policy, Lessee's obligation to pay Lessor pursuant to the foregoing
shall be decreased by the amount of such insurance proceeds."
n. Section 13.1 "Default"
In line 2 of paragraph (a), delete the word and number "ten (10)" and
add the word and number "five (5)".
In line 1 of paragraph (c), delete the word "failure" and replace with
the word "inability".
o. Section 13.2, "Remedies"
In line 1 of paragraph (c) before the word "notice", insert the word
"written".
p. Section 13.3, "Mitigation"
In line 1 of paragraph (b) , delete the words "three points over the
prime rate as referenced in the Wall Street Journal" and replace with
the words "six percent (6%) "; in line 2 after the words "Initial
Term", add the words "or any extension thereof,".
q. Section 14.3, "Binding Nature"
To the end of this Section, delete the period and add the words "except
with the prior written consent of Lessor as provided in Section 5.2."
r. Section 14.4, "Survival of Obligations"
In line 1, delete the words "including but not limited to those" and
insert the words "as well as in Section 11" after the words "arising
under Section 6.2 of this Master Lease".
s. Section 14.13, "Definitions"
In line 1 of the definition "Casualty Value" after the word "term", add
the words "discounted to present value using a rule of six percent
(6%)".
To the end of the definition "Installation Date", add the words "and
Lessee has executed an acceptance certificate".
In line 1 of the definition "Rent", delete the words", including
Interim Rent,".
In line 1 of the definition "Schedule" after the words "Equipment
Schedule", insert the words "substantially in the form of Exhibit A".
t. Add the following new sections:
"Section 14.14, "Obligation to Lease Additional Equipment"
Upon notice to Lessee, Lessor will not be obligated to lease any
equipment which would have a Commencement Date after said notice, if
(i) Lessee is in default under this Master Lease or any Schedules, or
(ii) Lessee is in default under any loan agreement, the result of
which has caused the lender or any secured party to demand immediate
repayment of the indebtedness."
"Section 14.15, "Merger and Sale Provisions"
Lessee will notify Lessor of any proposed Merger at least sixty (60)
days prior to the closing date. Lessor may, in its discretion, either
(i) consent to the assignment of the Master Lease and all relevant
Schedules to the successor entity, or (ii) terminate the Master Lease
and all relevant Schedules. If lessor elects to consent to the
assignment, Lessee and its successor will sign the assignment
documentation reasonably requested and provided by Lessor. If Lessor
elects to terminate the Master Lease and all relevant Schedules, then
Lessee will pay Lessor all amounts then due and owing and a termination
fee equal to the present value (discounted at 6%) of the remaining Rent
for the balance of the Initial Term(s) of all Schedules, and will
return the Equipment in accordance with Section 9."
"Section 14.16, "Financial Statements"
Lessee will provide to Lessor the financial statements specified in
this Section, prepared in accordance with generally accepted accounting
principles, consistently applied (the "Financial Statements");
provided, however, after the effective date of the initial
registration statement covering a public offering of Lessee's
securities, the term "Financial Statements" will be deemed to refer to
only those statements required by the Securities and Exchange
Commission, to be provided no less frequently than quarterly. Lessee
will provide to Lessor (i) as soon as practicable (within thirty (30)
days) after the end of each month, the same information which Lessee
provides to its Board of Directors, but which will include not less
than a monthly income statement, balance sheet and statement of cash
flows, certified by Lessee's Chief Executive or Financial officer to be
true and correct; and (ii) as soon as practicable (and in any event
within ninety (90) days) after the end of each fiscal year, audited
balance sheets as of the end of such year (consolidated if applicable),
and related statements of income or loss, retained earnings or deficit
and changes in the financial position and capital structure of Lessee
for such year, setting forth in comparative form the corresponding
figures for the preceding fiscal year, and accompanied by an audit
report and opinion of the independent certified public accountants
selected by Lessee. Lessee will promptly furnish to Lessor any
additional information (including but not limited to, income
statements, balance sheets, and names of principal creditors) as Lessor
reasonably believes necessary to evaluate Lessee's continuing ability
to meet financial obligations."
"Section 14.17, "Contingency"
The financing of this Equipment Schedule is contingent upon Lessee
executing a blanket lien, giving Lessor a first priority security
interest in all of Lessee's intangible and tangible assets up to lesser
of all outstanding obligations (including, without imitation,
principal, interest, and taxes) due under this Master Lease or
$400,000.000 (the "Secured Amount") provided the Lessee may substitute
for the first priority security interest in such assets by providing to
Lessor a first priority security interest in cash, certificates of
deposit, marketable securities and the like reasonably acceptable to
the Lessor in an amount equal to the Secured Amount.
MASTER LEASE: This Equipment Schedule is issued pursuant to the Master Lease
identified on page 1 hereof. All of the terms, conditions, representations and
warranties of the Master Lease are hereby incorporated herein and made a part
hereof as if they were expressly set forth in this Equipment Schedule. By their
execution and delivery of this Equipment Schedule, the parties hereby reaffirm
all of the terms, conditions, representations and warranties of the Master Lease
(including, without limitation, the representations and warranties set forth in
Section 8 thereof) except as modified herein.
ENDOCARDIAL SOLUTIONS, INC. COMDISCO MEDICAL GROUP, INC.
as Lessee as Lessor
By: By:
------------------------- -------------------------------
Xxxxx Xxxxxxx Xxxxx Xxxx
Title: Title:
---------------------- ----------------------------
Controller President, Venture Lease
Division
Date: Date:
---------------------- ---------------------------
EXHIBIT 1
COMMENCEMENT CERTIFICATE
This Certificate dated October 28, 1996 is executed pursuant to
Schedule No. ME-3 to the Master Lease Agreement dated November 15, 1994
between Comdisco Medical Equipment Group, Inc. ("Lessor") and Endocardial
Solutions, Inc. ("Lessee"). All of the terms, conditions, representations
and warranties of the Master Lease Agreement and Equipment Schedule No. ME3
are incorporated herein and made a part hereof and this Commencement
Certificate constitutes a Schedule for the Equipment described below.
1. EQUIPMENT:
EQUIPMENT
QTY MFGR TYPE/MODEL SERIAL # LOCATION
--- ---- ---------- -------- --------
(See attached Invoices)
2 INSTALLATION DATE: (See attached invoices)
3. INITIAL TERM STARTS ON:
4. TOTAL EQUIPMENT COST:
5. RENT:
6. REPRESENTATIONS OF LESSEE:
Each item of Equipment has been delivered to the location indicated above,
tested, inspected, found to be in good working order and accepted by the
Lessee on its Installation Date
EXHIBIT A
(MULTIPLE QUARTER DELIVERY)
SCHEDULE NO. VL-3
DATED AS OF October 28, 1996
TO MASTER LEASE AGREEMENT DATED AS OF NOVEMBER 15, 1994 ("MASTER LEASE")
LESSEE: ENDOCARDIAL SOLUTIONS, INC. LESSOR: COMDISCO, INC.
XXXXX.XXXXXXX/PHONE NO.: ADDRESS FOR ALL NOTICES:
Xxxxx Xxxxxxx - Controller 0000 Xxxxx Xxxxx Xxxx
phone (000) 000-0000 Xxxxxxxx, Xxxxxxxx 00000
fax (000) 000-0000 Attn.: Venture Lease Division
ADDRESS FOR NOTICES:
0000 Xxxxxx Xxxx, Xxxxx 000
Xx. Xxxx, XX 00000-0000
Attn.: Xxxxx Xxxxxxx
CENTRAL BILLING LOCATION: PAYING AGENT:
Same as above Comdisco, Inc.
X.X. Xxx 00000
Xxxxxxx, Xxxxxxxx 00000
Attn:
Lessee Reference No.: ______________
(24 digits maximum)
LOCATION OF EQUIPMENT: Initial Term: 36 months
same as above
Attn.:
LEASE RATE Factor: 3.135%
EQUIPMENT (as defined below): ADVANCE: $10,972.50
ITEM MACHINE TYPE/ SERIAL
NO. QTY. MANUFACTURER FEATURE DESCRIPTION NUMBER RENT
--- -- -------------- ------- ----------- ------ ----
Lessor shall finance Equipment specifically approved by Lessor up to an
aggregate purchase price of $350,000.00 which shall be delivered to and
accepted by Lessee commencing on the date hereof and continuing until July
31, 1997, and for which Lessor receives vendor invoices approved for
payment not including upgrades thereto and further excluding custom use
equipment, installation costs and delivery costs, rolling stock, special
tooling, custom equipment, "Stand-alone" software, molds and fungible
items.
1. NOTICE PERIOD: Not less than one hundred twenty (120) days nor more
than twelve (12) months prior to the expiration of the lease term.
2. EQUIPMENT PURCHASE
Lessee acknowledges that it has either received or approved Lessor's
purchase documentation for the Equipment. The aggregate purchase price referred
to on the face of this Schedule shall include all Equipment purchased by Lessor,
consisting of amounts financed under Sections (i), (ii) and (iii) below.
(i) NEW EQUIPMENT. Lessor will purchase new Equipment which is
specifically approved by Lessor.
(ii) SALE-LEASEBACK EQUIPMENT. NONE
(iii) USED EQUIPMENT. Lessor will purchase "used" Equipment which is
obtained from a third party by Lessee for its use subject to:
(1) Lessor's prior approval of the Equipment; and (2) at Lessor's
appraised value for such used Equipment.
3. COMMENCEMENT DATE
The Commencement Date for each item of Equipment will be its
Installation Date. Lessee agrees to confirm the Commencement Date by
providing Lessor with Invoices containing the Equipment location,
description, serial number and cost, an acceptance certificate upon
acceptance of the Equipment by Lessee, the Installation Date and Lessee's
signature. Lessor will summarize all Invoices and/or IAFs received in the
same calendar month into a Commencement Certificate in the form attached to
this Schedule as Exhibit 1 and the Initial Term will begin the first day of
the calendar month thereafter. Each Commencement Certificate will
incorporate the terms and conditions of the Master Lease and this Schedule
and will constitute a separate Schedule. Notwithstanding the foregoing, if
the Equipment pertains to Sale - Leaseback Equipment, then the Commencement
Date shall be the date that Lessor tenders the Purchase Price.
4. OPTION TO EXTEND
So long as no Event of Default shall have occurred and be continuing,
Lessee will have the right to extend the Initial Term of this Schedule for a
period of one (1) year by giving Lessor at least one hundred twenty (120)
days written notice prior to the expiration of the Initial Term. In such
event, the rent to be paid during said extended period shall be mutually
agreed upon and if the parties cannot mutually agree, then the Lease shall
continue in full force and effect pursuant to the existing terms and
conditions until terminated in accordance with its terms. This Schedule will
continue in effect following said extended period until terminated by either
party upon not less than one hundred twenty (120) days prior written notice,
which notice shall be effective as of the Rent Interval next following
receipt.
5. PURCHASE OPTION
So long as no Event of Default has occurred and is continuing
hereunder, and upon written notice no earlier than twelve (12) months and no
later than one hundred twenty (120) days prior to the expiration of the
initial Term, Lessee will have the option at the expiration of the Initial
Term of this Schedule to purchase all, but not less than all, of the
equipment listed herein for a purchase price not to exceed 25% of Lessor's
original cost and upon terms and conditions to be mutually agreed upon by the
parties following Lessee's written notice, plus any taxes applicable at time
of purchase. Said purchase price shall be paid to Lessor at least thirty (30)
days before the expiration date of the Initial Term. Title to the Equipment
shall automatically pass to Lessee upon payment in full of the purchase price
but, in no event, earlier than the expiration of the fixed Initial Term. If
the parties are unable to agree on the purchase price or the terms and
conditions with respect to said purchase, then the Lease with respect to this
Equipment shall remain in full force and effect. It is agreed and understood
that Lessor is retaining a purchase money security interest in the Equipment
listed herein and this Schedule shall constitute a Security Agreement under
the Uniform Commercial Code of the state in which the Equipment is located.
Lessor and Lessee agree that for purposes of this paragraph, any licensed
software will not be considered part of the Equipment.
6. SPECIAL TERMS
The terms and conditions of the Master Lease Agreement as they pertain to this
Schedule are hereby modified and amended as
follows:
a. Section 2, "TERM"
In line 1 after the word "Equipment", add the words "upon Lessee's
execution of an acceptance certificate or an approved invoice for
payment".
In line 2 after the word "begin", add the words "on the first day of
the next Rent Interval".
b. Section 3, "RENT AND PAYMENT"
In line 2 before the words "Interim Rent", add the word "No"; after
the words "Interim Rent", delete the words "is due and payable when
invoiced" and replace with the words "is required".
In line 4 after the words "on the Schedule", add the words "not to
exceed one month's Rent".
c. Section 5.1, "TITLE"
In line 5 after the word "appropriate", delete the period and add the
words "provided Lessor promptly advises Lessee in writing, except as
provided in Sections 5.2 and 7.2."
d. Section 5.2, "RELOCATION OR SUBLEASE"
In line 1 before the word "consent", delete the word "reasonable"
after the words "Secured Party", add the words
", which consent shall not be unreasonably withheld".
To the end of the last paragraph of this Section, add the words ",
except as agreed to by Lessor in writing".
e. Section 5.3, "ASSIGNMENT BY LESSOR"
At the end of subsection (a), delete the word "and"
At the end of subsection (b), add the word "and"
f. Section 7.1, "CARE, USE AND MAINTENANCE
To the end of this Section, add the following:
Lessor agrees that Lessee may self-maintain Equipment, provided the
foregoing requirement regarding recertification will apply to such
self-maintained Equipment.
g. Section 7.2, "ATTACHMENTS AND RECONFIGURATIONS"
In line 1 after the word "Lessor", add the words "which consent shall
not be unreasonably withheld".
h. Section 8, "REPRESENTATIONS AND WARRANTIES OF LESSEE"
To the end of subsection (b), add the following:
", subject to the effect of applicable bankruptcy and other similar
laws affecting the rights of creditors generally,
and rules of law concerning equitable remedies."
i. Section 12, "RISK OF LOSS"
In line 8 of the first paragraph after the word "will', insert the
words ", upon request,".
In line 3 of the second paragraph after the word "will", insert the
words ", within the later of the date of Lessee's receipt of
insurance proceeds or thirty (30) days thereafter,".
To the end of this Section, add the following:
"To the extent the insurance proceeds are paid directly to Lessor by
virtue of being named an additional insured under Lessee's equipment
policy, Lessee's obligation to pay Lessor pursuant to the foregoing
shall be decreased by the amount of such insurance proceeds."
j. Section 13.1 (c)"DEFAULT"
In line 1 delete the word "failure" and replace with the word
"inability"
k. Section 13.2, "REMEDIES"
In line 1 before the word "notice", insert the word "written".
l. Section 13.3, "MITIGATION"
In line 1 of subsection (b), delete the words "three points over the
prime rate as referenced in the Wall Street Journal" and replace with
the words "six percent (6%,)"; in line 2 after the words "Initial
Term", add the words "or any extension thereof,".
m. Section 14.1, "BOARD ATTENDANCE"
In line 1 after the word "attend", insert the words "up to two (2) per
year of"; and in line 2 after the word "meetings", insert the words "up
to the expiration of the lease term".
n. Section 14.2, "FINANCIAL STATEMENTS"
In line 15, delete the words "tax returns".
o. Section 14.3, "OBLIGATION TO LEASE ADDITIONAL EQUIPMENT"
In clause (ii), delete the words "would allow" and replace with the
words "has caused"; at the end of clause (ii), insert the word ";or";
at the end of clause (iii), delete the word "; or" and replace with a
period; delete clause (iv) in its entirety.
p. Section 14.4, "MERGER AND SALE PROVISIONS"
In line 5 after the word "documentation", insert the words "reasonably
requested and".
q. Section 14.7, "BINDING NATURE"
To the end of this Section, add the words "except with the prior
written consent of Lessor and as provided in Section
5.2".
r. Section 14.8, "SURVIVAL OF OBLIGATIONS"
In line 4, insert the word "and" between the words "execution"
and "delivery", delete the words "expiration or termination of
this Master Lease", and add the words "and the agreements and
obligations provided in Sections 6.2 and "of this Master Lease
shall survive the termination of the Master Lease".
s. Section 14.19, "DEFINITIONS"
In line 2 of the definition "Casualty Value" after the word "term", add
the words "discounted to present value using a rule of six percent
(6%)".
To the end of the definition "Installation Date" add the words ", and
Lessee has executed an acceptance certificate".
In line 1 of the definition "Overdue Rate", delete the words, "the
lesser... payment due" and insert the words "interest at the lesser
of 18% per annum"
In line 1 of the definition "Rent", delete the words ", including
Interim Rent,".
In line 1 of the definition "Schedule" after the words "Equipment
Schedule", insert the words "substantially in the form of Exhibit A".
MASTER LEASE: This Schedule is issued pursuant to the Master Lease identified on
page 1 of this Schedule. All of the terms and conditions of the Master Lease
are incorporated in and made a part of this Schedule as if they were expressly
set forth in this Schedule. The parties hereby reaffirm all of the terms and
conditions of the Master Lease (including, without limitation, the
representations and warranties set forth in Section 8) except as modified herein
by this Schedule. This Schedule may not be amended or rescinded except by a
writing signed by both parties.
ENDOCARDIAL SOLUTIONS, INC. COMDISCO, INC.
as Lessee as Lessor
By: By:
------------------------ --------------------------
Xxxxx Xxxxxxx Xxxxx Xxxx
Title: Title:
------------------------- -----------------------
Controller President, Venture Lease
Division
Date: Date:
--------------------------- -------------------------
EXHIBIT 1
COMMENCEMENT CERTIFICATE
This Certificate dated October 28, 1996 is executed pursuant to Schedule
No. _______ to the Master Lease Agreement dated November 15, 1994 between
Comdisco, Inc. ("Lessor") and ("Lessee"). All of the terms, conditions,
representations and warranties of the Master Lease and Schedule No. _______are
incorporated herein and made a part hereof and this Commencement Certificate
constitutes a Schedule for the Equipment described below.
1. EQUIPMENT:
EQUIPMENT
QTY MFGR. TYPE/MODEL SERIAL # LOCATION
--- ----- ---------- -------- --------
(See attached Invoices)
2. INSTALLATION DATE: (See attached Invoices)
3. INITIAL TERM STARTS ON:
4. TOTAL EQUIPMENT COST:
5. RENT:
6. REPRESENTATIONS OF LESSEE:
Each item of Equipment has been delivered to the location indicated above,
tested, inspected, found to be in good working order and accepted by the Lessee
on its Installation Date.
EXHIBIT A
(MULTIPLE QUARTER DELIVERY)
SCHEDULE NO. VL-4
DATED AS OF OCTOBER 28, 1996
TO MASTER LEASE AGREEMENT DATED AS OF NOVEMBER 15, 1994 ("MASTER LEASE")
LESSEE: ENDOCARDIAL SOLUTIONS, INC. LESSOR: COMDISCO, INC.
XXXXX.XXXXXXX/PHONE NO.: ADDRESS FOR ALL NOTICES:
Xxxxx Xxxxxxx - Controller 0000 Xxxxx Xxxxx Xxxx
phone (000) 000-0000 Xxxxxxxx, Xxxxxxxx 00000
fax (000) 000-0000 Attn.: Venture Lease Division
ADDRESS FOR NOTICES:
0000 Xxxxxx Xxxx, Xxxxx 000
Xx. Xxxx, XX 00000-0000
Attn.: Xxxxx Xxxxxxx
CENTRAL BILLING LOCATION: PAYING AGENT:
same as above Comdisco, Inc.
X.X. Xxx 00000
Attn.: Xxxxxxx, Xxxxxxxx 00000
Lessee Reference No.:_____________________
(24 digits maximum)
LOCATION OF EQUIPMENT: INITIAL TERM: 36 months
same as above
Attn.: LEASE RATE FACTOR: 3.211%
EQUIPMENT (as defined below): ADVANCE: $8,027.50
Item Machine Type/ Serial
No. Qty. Manufacturer Feature Description Number Rent
--- --- ------------- ------- ----------- ------ ----
Lessor shall finance Non-Standard Equipment (including software and
leasehold improvements) specifically approved by Lessor up to an aggregate
purchase price of $250,000.00 which shall be delivered to and accepted by
Lessee commencing on the date hereof and continuing until July 31, 1997,
and for which Lessor receives vendor invoices approved for payment.
1. NOTICE PERIOD: Not less than one hundred twenty (120) days nor more than
twelve (12) months prior to the expiration of the lease term.
2. EQUIPMENT PURCHASE
Lessee acknowledges that it has either received or approved Lessor's
purchase documentation for the Equipment. The aggregate purchase price referred
to on the face of this Schedule shall include all Equipment purchased by Lessor,
consisting of amounts financed under Sections (i), (ii) and (iii) below.
(i) NEW EQUIPMENT. Lessor will purchase new Equipment which is
specifically approved by Lessor.
(ii) SALE-LEASEBACK EQUIPMENT. None
(iii) USED EQUIPMENT. Lessor will purchase "used" Equipment which is
obtained from a third party by Lessee for its use subject to: (1)
Lessor's prior approval of the Equipment; and (2) at Lessor's
appraised value for such used Equipment.
3. COMMENCEMENT DATE
The Commencement Date for each item of Equipment will be its Installation
Date. Lessee agrees to confirm the Commencement Date by providing Lessor with
Invoices containing the Equipment location, description, serial number and cost,
an acceptance certificate upon acceptance of the Equipment by Lessee, the
Installation Date and Lessee's signature. Lessor will summarize all Invoices
and/or IAFs received in the same calendar month into a Commencement Certificate
in the form attached to this Schedule as Exhibit 1 and the Initial Term will
begin the first day of the calendar month thereafter. Each Commencement
Certificate will incorporate the terms and conditions of the Master Lease and
this Schedule and will constitute a separate Schedule. Notwithstanding the
foregoing, if the Equipment pertains to Sale - Leaseback Equipment, then the
Commencement Date shall be the date that Lessor tenders the Purchase Price.
4. OPTION TO EXTEND
So long as no Event of Default shall have occurred and be continuing,
Lessee will have the right to extend the Initial Term
of this Schedule for a period of one (1) year by giving Lessor at least one
hundred twenty (120) days written notice prior to the expiration of the Initial
Term. In such event, the rent to be paid during said extended period shall be
mutually agreed upon and if the parties cannot mutually agree, then the Lease
shall continue in full force and effect pursuant to the existing terms and
conditions until terminated in accordance with its terms. This Schedule will
continue in effect following said extended period until terminated by either
party upon not less than one hundred twenty (120) days prior written notice,
which notice shall be effective as of the Rent Interval next following receipt.
5. PURCHASE OPTION
So long as no Event of Default has occurred and is continuing hereunder,
and upon written notice no earlier than twelve
(12) months and no later than one hundred twenty (120) days prior to the
expiration of the Initial Term, Lessee will have the option at the expiration of
the Initial Term of this Schedule to purchase all, but not less than all, of the
Equipment listed herein for a purchase price not to exceed 25% of Lessor's
original cost and upon terms and conditions to be mutually agreed upon by the
parties following Lessee's written notice, plus any taxes applicable at time of
purchase. Said purchase price shall be paid to Lessor at least thirty (30) days
before the expiration date of the Initial Term. Title to the Equipment shall
automatically pass to Lessee upon payment in full of the purchase price but, in
no event, earlier than the expiration of the fixed Initial Term. If the parties
are unable to agree on the purchase price or the terms and conditions with
respect to said purchase, then the Lease with respect to this Equipment shall
remain in full force and effect. It is agreed and understood that Lessor is
retaining a purchase money security interest in the Equipment listed herein and
this Schedule shall constitute a Security Agreement under the Uniform Commercial
Code of the state in which the Equipment is located. Lessor and Lessee agree
that for purposes of this paragraph, any licensed software will not be
considered part of the Equipment.
6. SPECIAL TERMS
The terms and conditions of the Master Lease Agreement as they pertain to
this Schedule are hereby modified and amended as follows:
a. Section 2, "TERM"
In line 1 after the word "Equipment", add the words "upon
Lessee's execution of an acceptance certificate or an approved
invoice for payment".
In line 2 after the word "begin", add the words "on the first day of
the next Rent Interval".
b. Section 3, "RENT AND PAYMENT"
In line 2 before the words "Interim Rent", add the word "No"; after
the words "Interim Rent", delete the words "is due and payable when
invoiced" and replace with the words "is required".
In line 4 after the words "on the Schedule", add the words "not to
exceed one month's Rent".
c. Section 5.1, "TITLE"
In line 5 after the word "appropriate", delete the period and add the
words "provided Lessor promptly advises Lessee in writing, except
as provided in Sections 5.2 and 7.2."
d. Section 5.2, "RELOCATION OR SUBLEASE"
In line 1 before the word "consent", delete the word "reasonable";
after the words "Secured Party", add the words " which consent shall
not be unreasonably withheld".
To the end of the last paragraph of this Section, add the words ",
except as agreed to by Lessor in writing".
e. Section 5.3, "Assignment by Lessor"
At the end of subsection (a), delete the word "and"
At the end of subsection (b), add the word "and".
f. Section 7.1, "CARE, USE AND MAINTENANCE"
To the end of this Section, add the following:
Lessor agrees that Lessee may self-maintain Equipment, provided the
foregoing requirement regarding recertification will apply to such
self-maintained Equipment."
g. Section 7.2, "ATTACHMENTS AND RECONFIGURATIONS"
In line 1 after the word "Lessor", add the words "which consent shall
not be unreasonably withheld".
h. Section 8, "REPRESENTATIONS AND WARRANTIES OF LESSEE"
To the end of subsection (b), add the following:
", subject to the effect of applicable bankruptcy and other similar
laws affecting the rights of creditors generally, and rules of law
concerning equitable remedies."
i. Section 12, "RISK OF LOSS"
In line 8 of the first paragraph after the word "will", insert the
words ", upon request,".
In line 3 of the second paragraph after the word "will", insert the
words ", within the later of the date of Lessee's receipt of insurance
proceeds or thirty (30) days thereafter,".
To the end of this Section, add the following:
"To the extent the insurance proceeds are paid directly to Lessor by
virtue of being named an additional insured under Lessee's equipment
policy, Lessee's obligation to pay Lessor pursuant to the foregoing
shall be decreased by the amount of such insurance proceeds."
j. Section 13.1 (c) "DEFAULT"
In line 1 delete the word "failure" and replace with the word
"inability"
k. Section 13.2, "REMEDIES"
In line 1 before the word "notice", insert the word "written".
1. Section 13.3, "MITIGATION"
In line 1 of subsection (b), delete the words "three points over the
prime rate as referenced in the Wall Street Journal" and replace with
the words "six percent (6%)"; in line 2 after the words "Initial Term",
add the words "or any extension thereof,".
m. Section 14.1, "BOARD ATTENDANCE"
In line 1 after the word "attend". insert the words "up to two (2) per
year of"; and in line 2 after the word "meetings", insert the words
"up to the expiration of the lease term".
n. Section 14.2, "FINANCIAL STATEMENTS"
In line 15, delete the words "tax returns".
o. Section 14.3, "OBLIGATION TO LEASE ADDITIONAL EQUIPMENT"
In clause (ii), delete the words "would allow" and replace with the
words "has caused"; at the end of clause (ii), insert the word "; or";
at the end of clause (iii), delete the word "; or" and replace with a
period; delete clause (iv) in its entirety.
p Section 14.4, "MERGER AND SALE PROVISIONS"
In line 5 after the word "documentation", insert the words "reasonably
requested and".
q. Section 14.7, "BINDING NATURE"
To the end of this Section, add the words "except with the prior
written consent of Lessor and as provided in Section 5.2".
r. Section 14.8, "SURVIVAL OF OBLIGATIONS"
In line 4, insert the word "and" between the words "execution" and
"delivery'" delete the words "expiration or termination of this Master
Lease", and add the words "and the agreements and obligations provided
in Sections 6.2 and 11 of this Master Lease shall survive the
termination of the Master Lease".
s. Section 14.19, "DEFINITIONS"
In line 2 of the definition "Casualty Value" after the word "term" add
the words "discounted to present value using a rule of six percent
(6%)".
To the end of the definition "Installation Date", add the words ", and
Lessee has executed an acceptance certificate".
In line 1 of the definition "Overdue Rate", delete the words, "the
lesser ... payment due" and insert the words "interest at the lesser
of 18% per annum"
In line 1 of the definition "Rent", delete the words 1, including
Interim Rent,".
In line 1 of the definition "Schedule" after the words "Equipment
Schedule", insert the words "substantially in the form of Exhibit
A".
MASTER LEASE: This Schedule is issued pursuant to the Master Lease identified
on page 1 of this Schedule. All of the terms and conditions of the Master
Lease are incorporated in and made a part of this Schedule as if they were
expressly set forth in this Schedule. The parties hereby reaffirm all of
the terms and conditions of the Master Lease (including, without limitation,
the the representations and warranties set forth in Section 8) except as
modified herein by this Schedule. This Schedule may not be amended or
rescinded except by a writing signed by both parties.
ENDOCARDIAL SOLUTIONS, INC. COMDISCO, INC.
as Lessee as Lessor
By: By:
---------------------------- ---------------------------
Xxxxx Xxxxxxx Xxxxx Xxxx
Title: Title:
------------------------- -------------------------
Controller President, Venture Lease
Division
Date: Date:
-------------------------- -------------------------
EXHIBIT 1
COMMENCEMENT CERTIFICATE
This Certificate dated October 28, 1996 is executed pursuant to Schedule
No. _______to the Master Lease Agreement dated November 15, 1994 between
Comdisco, Inc. ("Lessor") and ("Lessee"). All of the terms, conditions,
representations and warranties of the Master Lease and Schedule No. _____are
incorporated herein and made a part hereof and this Commencement Certificate
constitutes a Schedule for the Equipment described below.
1. EQUIPMENT:
EQUIPMENT
QTY MFGR. TYPE/MODEL SERIAL # LOCATION
(See attached Invoices)
2. INSTALLATION DATE: (See attached Invoices)
3. INITIAL TERM STARTS ON:
4. TOTAL EQUIPMENT COST:
5. RENT:
6. REPRESENTATIONS OF LESSEE:
Each item of Equipment has been delivered to the location indicated above,
tested, inspected, found to be in good working order and accepted by the Lessee
on its Installation Date.
EXHIBIT A
(MULTIPLE QUARTER DELIVERY)
SCHEDULE NO. VL-2
DATED AS OF AUGUST 20, 1996
TO MASTER LEASE AGREEMENT DATED AS OF NOVEMBER 15, 1994 ("MASTER LEASE")
LESSEE: ENDOCARDIAL SOLUTIONS, INC. LESSOR: COMDISCO, INC.
XXXXX.XXXXXXX/PHONE NO.: ADDRESS FOR ALL NOTICES:
Xxxxx Xxxxxxx - Controller 0000 Xxxxx Xxxxx Xxxx
phone (000) 000-0000 Xxxxxxxx, Xxxxxxxx 00000
fax (000) 000-0000 Attn.: Venture Lease Division
ADDRESS FOR NOTICES:
0000 Xxxxxx Xxxx, Xxxxx 000
Xx. Xxxx, XX 00000-0000
Attn.: Xxxxx Xxxxxxx
CENTRAL BILLING LOCATION: PAYING AGENT:
same as above Comdisco, Inc.
X.X. Xxx 00000
Attn.: Xxxxxxx, Xxxxxxxx 00000
Lessee Reference No.:_____________________
(24 digits maximum)
LOCATION OF EQUIPMENT: INITIAL TERM: 36 months
same as above
Attn.: LEASE RATE FACTOR: 3.135%
EQUIPMENT (as defined below): ADVANCE:
Phase I $3,135
Phase II $7,837
Item Machine Type/ Serial
No. Qty. Manufacturer Feature Description Number Rent
--- ---- ------------ ------- ----------- ------ -----
Lessor shall finance Equipment specifically approved by Lessor up to an
aggregate purchase price of $350,000.00. $100,000 (Phase I") shall be available
immediately and the remaining $250,000 ("Phase II") will be available upon
Comdisco Ventures formal approval). Equipment shall be delivered to an accepted
by Lessee during the period August 20, 1996 through July 15, 1997 for which
Lessor receives vendor invoices approved for payment not including upgrades
thereto and further excluding custom use equipment, installation costs and
delivery costs, rolling stock, special tooling, custom equipment, "stand-alone"
software, molds and fungible items. In no event shall software costs or
leasehold improvement costs exceed $150,000 hereunder.
1. NOTICE PERIOD: Not less than one hundred twenty (120) days nor more than
twelve (12) months prior to the expiration of the lease term.
2. EQUIPMENT PURCHASE
Lessee acknowledges that it has either received or approved Lessor's
purchase documentation for the Equipment. The aggregate purchase price referred
to on the face of this Schedule shall include all Equipment purchased by Lessor,
consisting of amounts financed under Sections (i), (ii) and (iii) below.
(i) NEW EQUIPMENT. Lessor will purchase new Equipment which is
specifically approved by Lessor.
(ii) SALE-LEASEBACK EQUIPMENT. NONE
(iii) USED EQUIPMENT. Lessor will purchase "used" Equipment which is
obtained from a third party by Lessee for its use subject to: (1)
Lessor's prior approval of the Equipment; and (2) at Lessor's
appraised value for such used Equipment.
3 COMMENCEMENT DATE
The Commencement Date for each item of Equipment will be its Installation
Date. Lessee agrees to confirm the Commencement Date by providing Lessor with
Invoices containing the Equipment location, description, serial number and cost,
an acceptance certificate upon acceptance of the Equipment by Lessee, the
Installation Date and Lessee's signature. Lessor will summarize all Invoices
and/or IAFs received in the same calendar month into a Commencement Certificate
in the form attached to this Schedule as Exhibit 1 and the Initial Term will
begin the first day of the calendar month thereafter. Each Commencement
Certificate will incorporate the terms and conditions of the Master Lease and
this Schedule and will constitute a separate Schedule. Notwithstanding the
foregoing, if the Equipment pertains to Sale - Leaseback Equipment, then the
Commencement Date shall be the date that Lessor tenders the Purchase Price.
4. OPTION TO EXTEND
So long as no Event of Default shall have occurred and be continuing,
Lessee will have the right to extend the Initial Term of this Schedule for a
period of one (1) year by giving Lessor at least one hundred twenty (120)
days written notice prior to the expiration of the Initial Term. In such
event, the rent to be paid during said extended period shall be mutually
agreed upon and if the parties cannot mutually agree, then the Lease shall
continue in full force and effect pursuant to the existing terms and
conditions until terminated in accordance with its terms. This Schedule will
continue in effect following said extended period until terminated by either
party upon not less than one hundred twenty (120) days prior written notice,
which notice shall be effective as of the Rent Interval next following
receipt.
5. PURCHASE OPTION
So long as no Event of Default has occurred and is continuing hereunder,
and upon written notice no earlier than twelve (12) months and no later than
one hundred twenty (120) days prior to the expiration of the Initial Term,
Lessee will have the option at the expiration of the Initial Term of this
Schedule to purchase all, but not less than all, of the Equipment listed
herein for a purchase price not to exceed 25% of Lessor's original cost and
upon terms and conditions to be mutually agreed upon by the parties following
Lessee's written notice, plus any taxes applicable at time of purchase. Said
purchase price shall be paid to Lessor at least thirty (30) days before the
expiration date of the Initial Term. Title to the Equipment shall
automatically pass to Lessee upon payment in full of the purchase price but,
in no event, earlier than the expiration of the fixed Initial Term. If the
parties are unable to agree on the purchase price or the terms and conditions
with respect to said purchase, then the Lease with respect to this Equipment
shall remain in full force and effect. It is agreed and understood that
Lessor is retaining a purchase money security interest in the Equipment
listed herein and this Schedule shall constitute a Security Agreement under
the Uniform Commercial Code of the state in which the Equipment is located.
Lessor and Lessee agree that for purposes of this paragraph, any licensed
software will not be considered part of the Equipment.
6. SPECIAL TERMS
The terms and conditions of the Master Lease Agreement as they pertain to
this Schedule are hereby modified and amended as follows:
a. Section 2, "Term"
In line 1 after the word "Equipment", add the words "upon Lessee's
execution of an acceptance certificate or an approved invoice for
payment".
In line 2 after the word "begin", add the words "on the first day of
the next Rent Interval".
b. Section 3, "RENT AND PAYMENT"
In line 2 before the words "Interim Rent", add the word "No"; after
the words "Interim Rent", delete the words "is due and payable when
invoiced" and replace with the words "is required".
In line 4 after the words "on the Schedule", add the words "not to
exceed one Rent".
c. Section 5.1, "Title"
In line 5 after the word "appropriate", delete the period and add the
words "provided Lessor promptly advises Lessee in writing, except as
provided in Sections 5.2 and 7.2."
d. Section 5.2, "RELOCATION OR SUBLEASE"
In line 1 before the word "consent", delete the word "reasonable";
after the words "Secured Party", add the words', which consent
shall not be unreasonably withheld".
To the end of the last paragraph of this Section, add the words
", except as agreed to by Lessor in writing".
e. Section 5.3, "ASSIGNMENT BY LESSOR"
At the end of subsection (a), delete the word "and"
At the end of subsection (b), add the word "and".
f. Section 7.1, "CARE, USE AND MAINTENANCE"
To the end of this Section, add the following:
Lessor agrees that Lessee may self-maintain Equipment, provided the
foregoing requirement regarding recertification will apply to such
self-maintained Equipment."
g. Section 7.2, "ATTACHMENTS AND RECONFIGURATIONS"
In line 1 after the word "Lessor", add the words "which consent shall
not be unreasonably withheld".
h. Section 8, "REPRESENTATIONS AND WARRANTIES OF LESSEE"
To the end of subsection (b), add the following:
", subject to the effect of applicable bankruptcy and other similar
laws affecting the rights of creditors generally, and rules of law
concerning equitable remedies."
i. .Section 12, "RISK OF LOSS"
In line 8 of the first paragraph after the word "will", insert the
words ", upon request,".
In line 3 of the second paragraph after the word "will", insert the
words ", within the later of the date of Lessee's receipt of insurance
proceeds or thirty (30) days thereafter,".
To the end of this Section, add the following:
"To the extent the insurance proceeds are paid directly to Lessor by
virtue of being named an additional insured under Lessee's equipment
policy, Lessee's obligation to pay Lessor pursuant to the foregoing
shall be decreased by the amount of such insurance proceeds."
j. Section 13.1 (c) "DEFAULT"
In line 1 delete the word "failure' and replace with the word
"inability'
k. Section 13.2, "REMEDIES"
In line 1 before the word "notice", insert the word "written".
1. Section 13.3, "MITIGATION"
In line 1 of subsection (b), delete the words "three points over the
prime rate as referenced in the Wall Street Journal" and replace with
the words "six percent (6%)"; in line 2 after the words "Initial Term",
add the words "or any extension thereof,".
m. Section 14.1, "BOARD ATTENDANCE"
In line 1 after the word "attend". insert the words "up to two (2) per
year of"; and in line 2 after the word "meetings", insert the words
"up to the expiration of the lease term".
n. Section 14.2, "FINANCIAL STATEMENTS"
In line 15, delete the words "tax returns".
o. Section 14.3, "OBLIGATION TO LEASE ADDITIONAL EQUIPMENT"
In clause (ii), delete the words "would allow" and replace with the
words "has caused"; at the end of clause (ii), insert the word ";
or"; at the end of clause (iii), delete the word "; or" and replace
with a period; delete clause (iv) in its entirety.
p. Section 14.4, "MERGER AND SALE PROVISIONS"
In line 5 after the word "documentation", insert the words "reasonably
requested and".
q. Section 14.7, "BINDING NATURE"
To the end of this Section, add the words "except with the prior
written consent of Lessor and as provided in Section 5.21".
r. Section 14.8, "SURVIVAL OF OBLIGATIONS"
In line 4, insert the word "and" between the words "execution" and
"delivery", delete the words "expiration or termination of this Master
Lease", and add the words land the agreements and obligations provided
in Sections 6.2 and 11 of this Master Lease shall survive the
termination of the Master Lease".
s. Section 14.19, "DEFINITIONS"
In line 2 of the definition "Casualty Value" after the word "term'"
add the words "discounted to present value using a rule of six percent
(6%)".
To the end of the definition "Installation Date", add the words ", and
Lessee has executed an acceptance certificate".
In line 1 of the definition "Overdue Rate", delete the words, "the
lesser .. payment due" and insert the words interest at the lesser of
18% per annum"
In line 1 of the definition "Rent", delete the words 1, including
Interim Rent,".
In line 1 of the definition "Schedule" after the words "Equipment
Schedule", insert the words "substantially in the form of Exhibit A".
MASTER LEASE: This Schedule is issued pursuant to the Master Lease
identified on page 1 of this Schedule. All of the terms and conditions of
the Master Lease are incorporated in and made a part of this Schedule as if
they were expressly set forth in this Schedule. The parties hereby reaffirm
all of the terms and conditions of the Master Lease (including, without
limitation, the representations and warranties set forth in Section 8) except
as modified herein by this Schedule. This Schedule may not be amended or
rescinded except by a writing signed by both parties.
ENDOCARDIAL SOLUTIONS, INC. COMDISCO, INC.
as Lessee as Lessor
By: By:
---------------------------- -------------------------------
Xxxxx Xxxxxxx Xxxxx Xxxx
Title: Title:
------------------------- --------------------------
Controller President, Venture Lease
Division
Date: Date:
--------------------------- --------------------------
EXHIBIT 1
COMMENCEMENT CERTIFICATE
This Certificate dated October 28, 1996 is executed pursuant to Schedule
No. _____to the Master Lease Agreement dated November 15, 1994 between Comdisco,
Inc. ("Lessor") and ("Lessee"). All of the terms, conditions, representations
and warranties of the Master Lease and Schedule No. _____are incorporated herein
and made a part hereof and this Commencement Certificate constitutes a Schedule
for the Equipment described below.
1. EQUIPMENT:
EQUIPMENT
QTY MFGR. TYPE/MODEL SERIAL # LOCATION
(See attached Invoices)
2. INSTALLATION DATE: (See attached Invoices)
3. INITIAL TERM STARTS ON:
4. TOTAL EQUIPMENT COST:
5. RENT:
6. REPRESENTATIONS OF LESSEE:
Each item of Equipment has been delivered to the location indicated above,
tested, inspected, found to be in good working order and accepted by the Lessee
on its Installation Date.
