MASTER LEASE AGREEMENT
Exhibit
10.29
This
Master Lease Agreement (the "Lease") is made the 5th
day of November, 2008 between Leasing Technologies International, Inc., with
its
principal office at 000 Xxxxxxx Xxxx, Xxxxxx, XX 00000 (the "Lessor"), and
NeoGenomics, Inc., a Florida Corporation, with its principal office at 00000
Xxxxxxxxxxxx Xxxxx, Xxxxx 0, Xxxx Xxxxx, XX 00000 (the "Lessee"). The parties
hereto agree as follows:
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1.
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Lease:
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This
Lease establishes the general terms and conditions by which Lessor may lease
to
Lessee the Equipment (the "Equipment") listed on each Equipment Schedule
executed periodically pursuant to this Lease. Each such Equipment Schedule
shall
incorporate by reference the terms of this Lease, and shall be a separate lease
agreement as to the Equipment listed thereon for all purposes, including
default. In the event of any conflict between the terms and conditions of this
Lease and the terms and conditions of any Equipment Schedule(s) or Rider(s)
thereto, the terms and conditions of such Equipment Schedule(s) or Rider(s)
shall prevail.
2.
Definitions:
(a)
The
"Installation Date" means the date determined in accordance with the applicable
Equipment Schedule.
(b)
Intentionally omitted.
(c)
The
"Daily Rental" means 1/30th of the amount set forth as the monthly rental in
the
applicable Equipment Schedule.
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3.
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Term
of Lease:
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The
term
of this Lease, as to all Equipment designated on any Equipment Schedule, shall
commence on the Installation Date for such Equipment, and shall continue for
an
initial period ending that number of months as is specified on the applicable
Equipment Schedule from the Installation Date for the last item of Equipment
to
be installed (the "Initial Term"). The term of this Lease for all such Equipment
shall be automatically extended for successive monthly periods until terminated
in accordance with this Lease. Any termination shall be effective only on the
last day of the Initial Term or the last day of any such successive
period.
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4.
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Rental:
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The
monthly rental payable hereunder is as set forth in the Equipment Schedule(s).
Rental shall begin to accrue on the Installation Date for each item of Equipment
and shall be due and payable by Lessee in advance on the first day of each
month. Lessor or its Assignees shall, at its option, have the right to
automatically transfer funds from Lessee’s bank account to pay the Monthly
Rental and any other amounts due hereunder on the date such amounts become
due.
Lessee shall, at Lessor’s request, execute such document as Lessor, or Lessee’s
bank, may reasonably request in order to implement such transfer. In addition
to
the monthly rental set forth in the Equipment Schedule(s), Lessee shall pay
to
Lessor an amount equal to all taxes paid, payable or required to be collected
by
Lessor, however designated, which are levied or based on the rental, on the
Lease or on the Equipment or on its purchase for lease hereunder, or on its
use,
lease, operation, control or value (including, without limitation, state and
local privilege or excise taxes based on gross revenue), any penalties or
interest in connection therewith which are attributable to Lessee's negligence
or taxes or amounts in lieu thereof paid or payable by Lessor in respect of
the
foregoing, but excluding taxes based on Lessor's net income. Personal property
taxes assessed on the Equipment during the term hereof shall be paid by Lessee.
Lessee agrees that Lessor, or Lessor's agent may file all required property
tax
returns and reports and pay all taxes thereon pertaining to the Equipment.
In
such event, Lessee shall reimburse Lessor or Lessor’s agent for all costs and
expenses incurred in connection therewith. If requested by Lessor, Lessee agrees
to file, on behalf of Lessor, all required property tax returns and reports
concerning the Equipment with all appropriate governmental agencies, and, within
not more than thirty (30) days after the due date of such filing to send Lessor
confirmation of such filing.
Interest
on any past due payments, including but not limited to administrative charges
and any other charges or fees arising out of or related to this Lease, shall
accrue at the rate of 1 1/2% per month, or if such rate shall exceed the maximum
rate allowed by law, then at such maximum rate, and shall be payable on demand.
Charges for taxes, penalties and interest shall be promptly paid by Lessee
when
invoiced by Lessor.
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Installation,
Use and Quiet Possession of Equipment:
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(a)
Lessee, at its own expense, will provide the required suitable electric current
to operate the Equipment and appropriate installation facilities as specified
by
the manufacturer.
(b)
Any
equipment, cards, disks, tapes or other items not specified in the Equipment
Schedule(s) which are used on or in connection with the Equipment must meet
the
specifications of the manufacturer and shall be acquired by Lessee at its own
expense.
(c)
Lessee shall use the Equipment solely in connection with Lessee's business
and
for no other purpose. Subject to the preceding sentence, Lessee shall be
entitled to unlimited usage of the Equipment without extra charge by
Lessor.
(d)
Unless otherwise set forth in the applicable Equipment Schedule, Lessee will
at
all times keep the Equipment in its sole possession and control. The Equipment
shall not be moved from the location stated in the applicable Equipment Schedule
without the prior written consent of Lessor.
(e)
After
prior notice to Lessor, Lessee may, at its own expense, make alterations in
or
add attachments to the Equipment, provided such alterations or attachments
do
not interfere with the normal and satisfactory operation or maintenance of
the
Equipment or with Lessee's ability to obtain and maintain any maintenance
contracts that may be applicable pursuant to Section 5(h) hereof. The
manufacturer or other organization selected by Lessee and approved in writing
by
Lessor to maintain the Equipment ("Maintenance Organization") may incorporate
engineering changes or make temporary alterations to the Equipment upon request
of Lessee. All such alterations and attachments shall be and become the property
of Lessor or, at the option of Lessee, shall be removed by Lessee and the
Equipment restored, at Lessee's expense, to its original condition as of the
Installation Date thereof, reasonable wear and tear only excepted, and upon
the
removal and restoration, the alteration and/or attachment which was made by
Lessee shall become the property of Lessee.
(f)
So
long as Lessee is not in default hereunder, neither Lessor nor any party
claiming through or under Lessor shall interfere with Lessee's use or possession
of any Equipment during the term of this Lease.
(g)
Lessee shall, during the term of this Lease, at its expense, keep the Equipment
in good working order and condition and make all necessary adjustments, repairs
and replacements and shall not use or permit the Equipment to be used in any
manner or for any purpose for which, in the opinion of the manufacturer, the
Equipment is not designed or reasonably suitable.
(h)
If
mutually agreed to by Lessor and Lessee and specified in the applicable
Equipment Schedule, Lessee shall, during the term of such Equipment Schedule,
at
its own expense, enter into and maintain in force a contract with the
manufacturer or the Maintenance Organization covering at least prime shift
maintenance of each item of Equipment. Such contract shall commence upon
expiration of the manufacturer's warranty period, if any, relating to such
item.
If applicable, Lessee shall furnish Lessor with a copy of such
contract(s).
(i)
At
the termination of the applicable Equipment Schedule, Lessee at its expense
shall return, if permitted by the applicable Equipment Schedule, not less than
all the Equipment subject thereto to Lessor (at the location designated by
Lessor within the Continental United States) in the same operating order,
repair, condition and appearance as on the Installation Date, reasonable wear
and tear only excepted, with all engineering and safety changes prescribed
by
the manufacturer or Maintenance Organization incorporated therein. Lessee shall,
prior to such termination, arrange and pay for any repairs, changes and
manufacturer's certifications as are necessary to restore such equipment to
reasonable working order. Lessee shall return all accessories supplied with
the
Equipment, including but not limited to all manuals, cables and software
diskettes. Lessee shall promptly pay, after receipt of an invoice therefore,
all
costs and expenses pertaining to the replacement of any missing items and for
the repair of any Equipment, together with any audit, inspection or
certification charges reasonably incurred by Lessor.
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6.
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Leasehold
Rights and Inspection:
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(a)
Lessee shall have no interest in the Equipment other than the rights acquired
as
a lessee hereunder and the Equipment shall remain personalty regardless of
the
manner in which it may be installed or attached. Lessee shall, at Lessor's
request, affix to the Equipment, tags, decals or plates furnished by Lessor,
indicating Lessor's ownership and Lessee shall not permit their removal or
concealment. Lessee shall replace any such tag, decal or plate, which may be
removed or destroyed or become illegible. Lessee shall keep all Equipment free
from any marking or labeling which might be interpreted as a claim of ownership
thereof by Lessee or any party other than Lessor or anyone claiming through
Lessor.
(b)
Lessee shall keep the Equipment free and clear of all liens and encumbrances
except liens or encumbrances arising through the actions or omissions of Lessor.
LESSEE SHALL NOT ASSIGN OR OTHERWISE ENCUMBER THIS LEASE OR ANY OF ITS RIGHTS
HEREUNDER OR SUBLEASE THE EQUIPMENT WITHOUT THE PRIOR WRITTEN CONSENT OF
LESSOR.
(c)
Lessor or its agents shall have free access to the Equipment at all reasonable
times for the purpose of inspection and for any other purpose contemplated
by
this Lease upon five (5) business days written notice, except that only two
(2)
days notice shall be required if Lessee is in default of its obligations under
this Lease.
(d)
Lessee shall immediately notify Lessor of all details concerning any damage
to,
or loss of, the Equipment arising out of any event or occurrence whatsoever,
including but not limited to, the alleged or apparent improper manufacture,
functioning or operation of the Equipment.
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7.
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No
Warranties By Lessor:
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Lessee
represents that, at the Installation Date thereof, it shall have (a) thoroughly
inspected the Equipment; (b) determined for itself that all items of Equipment
are of a size, design, capacity and manufacture selected by it; and (c)
satisfied itself that the Equipment is suitable for Lessee's purposes. LESSOR
SUPPLIES THE EQUIPMENT AS IS AND NOT BEING THE MANUFACTURER OF THE EQUIPMENT,
THE MANUFACTURER'S AGENT OR THE SELLER'S AGENT, MAKES NO WARRANTY OR
REPRESENTATION, EITHER EXPRESS OR IMPLIED AS TO THE EQUIPMENT'S MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, DESIGN, CONDITION, QUALITY, CAPACITY, MATERIAL
OR WORKMANSHIP OR AS TO PATENT INFRINGEMENT OR THE LIKE, it being agreed that
all such risks, as between Lessor and Lessee, are to be borne by Lessee. Lessee
agrees to look solely to the manufacturer or to suppliers of the Equipment
for
any and all warranty claims and any and all warranties made by the manufacturer
or the supplier of Lessor are, to the extent to which the same may be
assignable, hereby assigned to Lessee for the term of the applicable Equipment
Schedule. Lessee agrees that Lessor shall not be responsible for the delivery,
installation, maintenance, operation or service of the Equipment or for delay
or
inadequacy of any or all of the foregoing. Lessor shall not be responsible
for
any direct or consequential loss or damage resulting from the installation,
operation or use of the Equipment or otherwise. Lessee will defend, indemnify
and hold Lessor harmless against any and all claims, demands and liabilities
arising out of or in connection with the design, manufacture, possession or
operation of the Equipment. To
the
extent permitted by applicable law, Lessee waives any and all rights and
remedies conferred upon a Lessee by Article 2A of the UCC and any rights
now or hereinafter conferred by statute or otherwise that may limit or modify
Lessor’s rights as described in this Section or other provisions of this Lease
Agreement.
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8.
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Risk
of Loss on Lessee:
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(a)
Beginning on the Installation Date thereof and continuing until the Equipment
is
either returned to Lessor or purchased by Lessee as provided in this Lease,
Lessee relieves Lessor of responsibility for all risks of physical damage to
or
loss or destruction of the Equipment, howsoever caused. During the term of
this
Lease as to any Equipment Schedule, Lessee shall, at its own expense, keep
in
effect "all risk" property insurance and public liability insurance policies
covering the Equipment designated in each Equipment Schedule. The public
liability insurance policy shall be in such amount as is reasonably acceptable
to Lessor. The "all risk" property insurance policy shall be for an amount
not
less than the replacement cost of the Equipment. Lessor, its successors and
assigns and/or such other party as may be designated by any thereof to Lessee,
in writing, shall be named as additional insureds and loss payees on such
policies, which shall be written by an insurance company of recognized
responsibility which is reasonably acceptable to Lessor. Evidence of such
insurance coverage shall be furnished to Lessor no later than the Installation
Date set forth in the Equipment Schedule(s) and, from time to time, thereafter
as Lessor may request. Such policies shall provide that no less than ten days
written notice shall be given Lessor and any other party named as loss payee
prior to cancellation of such policies for any reason. To the extent of Lessor's
interest therein, Lessee hereby irrevocably appoints Lessor or any other party
named as loss payee as Lessee's attorney-in-fact coupled with an interest to
make claim for, receive payment of, and execute any and all documents that
may
be required to be provided to the insurance carrier in substantiation of any
such claim for loss or damage under said insurance policies, and to endorse
Lessee's name to any and all drafts or checks in payment of the loss
proceeds.
(b)
If
any item of Equipment is rendered unusable as a result of any physical damage
to, or destruction of, the Equipment, Lessee shall give to Lessor immediate
notice thereof and this Lease shall continue in full force and effect without
any abatement of rental. Lessee shall determine, within thirty (30) days after
the date of occurrence of such damage or destruction, whether such item of
Equipment can be repaired. In the event Lessee determines that the item of
Equipment cannot be repaired, Lessee shall either, at its expense, promptly
replace such item of Equipment and convey title to such replacement to Lessor
free and clear of all liens and encumbrances, and this Lease shall continue
in
full force and effect as though such damage or destruction had not occurred,
or
pay Lessor therefor in cash the Stipulated Loss Value (defined below) within
forty-five (45) days of such loss or damage. "Stipulated Loss Value," as used
herein, shall be an amount as shown on Exhibit A to the applicable Equipment
Schedule. In the event Lessee determines that such item of Equipment can be
repaired, Lessee shall cause such item of Equipment to be promptly repaired.
All
proceeds of insurance received by Lessor, the designated loss payee, or Lessee
under the policy referred to in the preceding paragraph of this Section shall
be
applied toward the cost of any such repair or replacement.
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9.
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Events
of Default and Remedies:
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The
occurrence of any one of the following shall constitute an Event of Default
hereunder:
(a)
Lessee fails to pay an installment of rent on or before the date when the same
becomes due and payable and such failure continues for a period of ten (10)
days;
(b)
Lessee attempts to remove, sell, transfer, encumber, sublet or part with
possession of the Equipment or any items thereof, except as expressly permitted
herein;
(c)
Lessee shall fail to observe or perform any of the other obligations required
to
be observed or performed by Lessee hereunder and such failure shall continue
uncured for thirty (30) days after written notice thereof to Lessee by Lessor
or
the then assignee hereof;
(d)
Lessee ceases doing business as a going concern, makes an assignment for the
benefit of creditors, admits in writing its inability to pay its debts as they
become due, files a voluntary petition of bankruptcy, is adjudicated a bankrupt
or an insolvent, files a petition seeking for itself any reorganization,
arrangement, composition, readjustment, liquidation, dissolution or similar
arrangement under any present or future statute, law or regulation or files
an
answer admitting the material allegations of the petition filed against it
in
any such proceeding, consents to or acquiesces in the appointment of a trustee,
receiver, or liquidator of it or of all or any substantial part of its assets
or
properties, or if it or its shareholders shall take any action looking to its
dissolution or liquidation;
(e)
Within thirty (30) days after the commencement of any proceedings against Lessee
seeking reorganization, arrangement, readjustment, liquidation, dissolution
or
similar relief under any present or future statute, law or regulation, such
proceedings shall not have been dismissed, or if within thirty (30) days after
the appointment without Lessee's consent or acquiescence of any trustee,
receiver or liquidator of it or of all or any substantial part of its assets
and
properties, such appointment shall not be vacated;
(f)
Lessee defaults in the payment of any monetary obligation in excess of $25,000
with respect to a loan agreement or other indebtedness involving a total
outstanding obligation in excess of $1,000,000 at the time of such default,
and
such default is not waived within fifteen days of the occurrence thereof, or
within fifteen days after the application of any applicable grace or cure
period, whichever is longer;
(g)
Intentionally deleted.
(h)
Lessee sells all or substantially all of its assets or consolidates with or
merges into any other entity.
Upon
the
occurrence of an Event of Default, Lessor may at its option do any one or more
of the following: (i) by notice to Lessee terminate this Lease as to any or
all
Equipment Schedules; (ii) whether or not this Lease is terminated as to any
or
all Equipment Schedules, take possession on not less than five (5) days' written
notice of any or all of the Equipment listed on any or all Equipment Schedules,
wherever situated, and for such purpose, enter upon any premises without
liability for so doing or Lessor may cause Lessee and Lessee hereby agrees,
to
return said Equipment to Lessor as provided in this Lease; (iii) recover from
Lessee, as liquidated damages for loss of a bargain and not as a penalty, all
past due amounts as well as an amount equal to the present value of all monies
to be paid by Lessee during the remaining Initial Term or any successive period
then in effect, calculated by discounting at the rate of nine percent (10%)
per
annum compounded monthly, which payment shall become immediately due and
payable; and (iv) sell, dispose of, hold, use or lease any Equipment as Lessor
in its sole discretion may determine (and Lessor shall not be obligated to
give
preference to the sale, lease or other disposition of the Equipment over the
sale, lease or other disposition of similar equipment owned or leased by
Lessor).
In
the
event that Lessee shall have first paid to Lessor or its assigns the liquidated
damages referred to in (iii) above, Lessee shall (except if Lessee has defaulted
under Section 9 (e) or 9 (f) in which case Lessee’s rights shall be determined
by applicable bankruptcy law) be entitled to purchase, for a period of thirty
(30) days after any such payment is made, all of the equipment to which the
liquidated damages payment applies at the fair market value of the equipment;
provided, however, that such fair market value shall not exceed any limitation
specified in the relevant Equipment Schedule. In the event that Lessee elects
not to purchase any of the equipment to which the liquidated damages payment
applies, Lessee shall thereafter be entitled to receive all rentals or proceeds
received from any reletting or sale of the Equipment during the balance of
the
Initial Term (after deduction of Lessor's expected residual value of the
Equipment at the expiration of the Initial Term or any extension thereof, which
shall not be in excess of the limitations on the calculation of fair market
value in any such Equipment Schedule covering the equipment in question, and
of
all expenses incurred in connection therewith) said amount never to exceed
the
amount of the liquidated damages paid by Lessee. Lessee agrees that Lessor
shall
have no obligation to sell the Equipment. Lessee shall in any event remain
fully
liable for reasonable damages as provided by law and for all costs and expenses
incurred by Lessor or its assigns on account of such default including but
not
limited to all court costs and reasonable attorney's fees. Lessee hereby agrees
that, in any event, it will be liable for any deficiency after any lease or
other disposition of the Equipment. The rights afforded Lessor hereunder shall
not be deemed to be exclusive, but shall be in addition to any rights or
remedies provided by law.
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10.
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Net
Lease:
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Except
as
otherwise specifically provided in this Lease, it is understood and agreed
that
this is a net lease, and that, as between Lessor and Lessee, Lessee shall be
responsible for all costs and expenses of every nature whatsoever arising out
of
or in connection with or related to this Lease or the Equipment (including,
but
not limited to, equipment inspection, tagging, transportation in and out,
rigging, manufacturer's approved packing, installation, certification costs
and
disconnect charges). Lessee hereby agrees that in the event that Lessee fails
to
pay or perform any obligation under this Lease, Lessor may, at its option,
pay
or perform said obligation and any payment made or expense incurred by Lessor
in
connection therewith shall become additional rent, which shall be due and
payable by Lessee upon demand. Lessee acknowledges that Lessor may, from time
to
time, and at Lessee's request, execute and deliver purchase orders pertaining
to
the purchase of equipment to be leased pursuant to this Lease. Lessee agrees
that it will indemnify and hold Lessor harmless from and against any and all
loss, cost, liability and expense that Lessor may incur as a result of the
execution and delivery of such purchase orders.
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11.
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Assignment:
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Lessee
agrees that Lessor may transfer or assign all or any part of Lessor's right,
title, and interest in, under or to the Equipment and this Lease and any or
all
sums due or to become due pursuant to any of the above, to any third party
(the
"Assignee") for any reason and that the Assignee may so re-assign and transfer.
In the event of any such assignment of this Lease, Lessor agrees to promptly
notify Lessee in writing of such assignment and provide appropriate contact
information of such assignee within ten (10) days of the date of any such
assignment. Lessee agrees that upon receipt of written notice from Lessor or
Assignee of such assignment, Lessee shall perform all of its obligations
hereunder for the benefit of Assignee and any successor assignee and, if so
directed, shall pay all sums due or to become due thereunder directly to the
Assignee or to any other party designated by the Assignee. Notwithstanding
the
foregoing, Lessor and any assignee hereunder acknowledge and agree that any
failure by Lessor or any assignees under this Lease to promptly notify Lessee
of
any further assignments hereunder which have the result of delays in any
payments or other obligations under this Lease shall not be deemed to be an
Event of Default nor will any late fees be imposed until after any applicable
cure periods have run from the date Lessee receives written notification of
such
assignment. Lessee hereby covenants, represents and warrants as follows and
agrees that the Assignee and any successor assignee shall be entitled to rely
on
and shall be considered a third party beneficiary of the following covenants,
representations and warranties: (i) Lessee's obligations hereunder are absolute
and unconditional and are not subject to any abatement, reduction, recoupment,
defense, offset or counterclaim available to Lessee for any reason whatsoever
including operation of law, defect in the Equipment, failure of Lessor or
Assignee to perform any of its obligations hereunder or for any other cause
or
reason whatsoever, whether similar or dissimilar to the foregoing; (ii) Lessee
shall not look to Assignee or any successor assignee to perform any of Lessor's
obligations hereunder; (iii) Lessee will not amend or modify this Lease without
the prior written consent of the Assignee and any successor assignee; and (iv)
Lessee will send a copy to Assignee and any successor assignee of each notice
which Lessee sends to Lessor.
| 12. |
Representations
and Warranties of Lessee and
Lessor:
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Lessee
represents and warrants to Lessor and its assigns, as follows:
1.
The
execution, delivery and performance of this Lease has been duly authorized
and,
upon execution by Lessor and Lessee, will constitute a valid obligation binding
upon and enforceable against Lessee in accordance with its terms, subject to
laws governing creditors' rights;
2.
The
performance by Lessee will not result in any breach, default or violation of,
Lessee's certificate of incorporation or by-laws or any agreement to which
Lessee is a party;
3.
Lessee
is in good standing in its jurisdiction of incorporation and in any jurisdiction
in which any of the Equipment is to be located; and
4.
Any
and all financial statements or other information with respect to Lessee
heretofore furnished by Lessee to Lessor was, when furnished, and remains at
the
time of execution of this Lease, true and complete.
Lessor
represents and warrants to Lessee as follows:
1.
The
execution, delivery and performance of this Lease has been duly authorized
and,
upon execution by Lessor and Lessee, will constitute a valid obligation binding
upon and enforceable against Lessor in accordance with its terms, subject to
laws governing creditors' rights; and
2.
The
performance by Lessor will not result in any breach, default or violation of,
Lessor's certificate of incorporation or by-laws or any agreement to which
Lessor is a party;
The
foregoing representations and warranties shall survive the expiration or
termination of this Lease.
| 13. |
End
of Lease:
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For
each
Equipment Schedule, Lessor agrees that it will provide written notice to Lessee
at least one hundred and twenty (120) days prior to the end of such Equipment
Schedule which notifies Lessee of the upcoming end of such Equipment Schedule
and requests that Lessee select one of the end of lease options in accordance
with the alternatives set forth on such Equipment Schedule. Provided (i) no
Event of Default has occurred and is continuing and (ii) Lessee has made all
payments in accordance with the Lease, upon written notice furnished by Lessee
to Lessor no later than thirty (30) days after Lessor has provided written
notice of the upcoming contractual end of an Equipment Schedule, Lessee shall,
with respect to each Equipment Schedule elect only such alternatives as may
be
set forth on the Equipment Schedule. Notwithstanding the foregoing, if Lessee
for any reason fails to notify the Lessor of its end of lease selection for
any
given Equipment Schedule (including as a result of Lessor’s failure to provide
written notice as set forth in the first sentence of this Section 13), then
the
parties agree that Lessee shall have been automatically deemed to have selected
end of lease option (c) with respect to such Equipment Schedule to extend the
Initial Term for an additional six months at a Monthly Rental equal to 35%
of
the Monthly Rental paid by Lessee during the Initial Term. Notwithstanding
the
foregoing, if the Lessor fails to provide written notice as set forth in the
first sentence of this Section 13 and the end of lease election automatically
defaults to option (c), then the Lessee shall have the option select another
end
of lease alternative if it so chooses for a period of thirty (30) days from
the
date on which Lessee is first notified by Lessor that the Monthly Rental has
been reset to a rate of 35% of the Monthly Rental paid by Lessee during the
Initial Term.
To
the
extent that any of such alternatives involves a determination of Fair Market
Value, the Fair Market Value shall be defined and determined by the provisions
of this Section. For purposes hereof, Fair Market Value shall mean the amount
that would obtain in a retail arm's length transaction between an informed
and
willing lessee-buyer in possession and an informed and willing lessor-seller.
Rental charges previously paid pursuant to the applicable Equipment Schedule
shall have no effect on the determination of Fair Market Value. Unless otherwise
stated in the Equipment Schedule: the Fair Market Value for items set forth
on
the Equipment Schedule which do not have a readily ascertainable market value,
(including but not limited to software, cabling and certain equipment) shall
be
determined by multiplying the Lessor's acquisition cost of such items by a
fraction, the numerator of which shall be the Fair Market Value of the other
items and the denominator of which shall be the Lessor's acquisition cost of
such other items; and the determination of Fair Market Value shall be based
upon
the assumption that all items set forth on the Equipment Schedule or included
with the Equipment may be transferred to, and used by, a third party user.
In
such determination, all alternative uses in the hands of each buyer or lessee,
including, without limitation, the further leasing of the Equipment shall be
taken into account in making such determination.
If,
on or
before a date which is sixty (60) days prior to the expiration of the Initial
Term, Lessor and Lessee are unable to agree upon a determination of the Fair
Market Value of the Equipment, the Fair Market Value (to be determined in
accordance with the definition set forth in this Section) shall, upon written
request by Lessee therefor, be conclusively established not less than thirty
(30) days prior to the expiration of the Initial Term by an independent
appraiser selected by Lessor. Lessor shall notify Lessee of the name and address
of said appraiser. The costs of such appraiser shall be paid by Lessee within
ten (10) days after receipt of an invoice therefor. The Lease, including the
obligation to pay monthly rentals, shall remain in effect pending the
determination of Fair Market Value; provided, however, beginning on the day
after the expiration of the Initial Term of any given Equipment Schedule, the
monthly rental for such Equipment Schedule will be reduced to 35% of the Monthly
Rental amount paid by Lessee during the Initial Term pursuant to the automatic
election of the Lessor described in the first paragraph of this Section 13.
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14.
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Miscellaneous:
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(a)
During the term of this Lease, Lessee hereby agrees to deliver to Lessor or
Assignee and any successor assignee a copy of Lessee's quarterly unaudited
financial statements, and the annual financial budget for the upcoming year
as
soon as available and as it may be adjusted during the year. Lessee shall also
furnish, as soon as available and in any event within one hundred five (105)
days after the last day of Lessee's fiscal year, a copy of Lessee's annual
audited statements and consolidating and consolidated balance sheet, if any,
as
of the end of such fiscal year, accompanied by the opinion of an independent
certified public accounting firm of recognized standing. Notwithstanding the
forgoing, Lessor agrees that if such quarterly or annual financial information
is available on the Securities and Exchange Commission’s website at xxx.xxx.xxx
as part
of the Xxxxx database, then such access shall be deemed to be compliance with
the requirements of this paragraph. The Lessee shall furnish such other
financial information as may be reasonably requested by Lessor, including but
not limited to any material changes in budgets or financial reports furnished
to
the Lessee's Board of Directors or Shareholders.
(b)
This
Lease constitutes the entire agreement between Lessee and Lessor with respect
to
the Equipment, and except as agreed upon in writing no covenant, condition
or
other term or provision hereof may be waived or modified orally.
(c)
All
notices hereunder shall be in writing and shall be delivered in person or sent
by registered or certified mail, postage prepaid, or by facsimile transmission
(confirmed by registered mail as set forth in this section) to the address
of
the other party as set forth herein or to such other address as such party
shall
have designated by proper notice. Lessee shall notify Lessor of any change
of
address upon at least thirty (30) days prior written notice.
(d)
This
Lease shall be binding upon and inure to the benefit of Lessor and Lessee and
their respective successors and assigns (including any subsequent assignee
of
Assignee).
(e)
If
any term or provision of this Lease or the application thereof to any person
is,
to any extent, invalid or unenforceable, the remainder of this Lease, or the
application of such provision to the person other than those to which it is
invalid or unenforceable, shall not be affected thereby, and each provision
of
this Lease shall be valid and be enforced to the fullest extent permitted by
law.
(f)
No
waiver of any of the terms and conditions hereof shall be effective unless
in
writing and signed by the party against whom such waiver is sought to be
enforced. Any waiver of the terms hereof shall be effective only in the specific
instance and for the specific purpose given. The subsequent acceptance of rental
payments hereunder by Lessor shall not be deemed a waiver of any prior existing
breach by Lessee regardless of Lessor's knowledge of such prior existing breach
at the time of acceptance of such rental payments. Where permitted by law,
Lessee authorizes any attorney of record, Clerk of Court or Prothonotary of
any
state to appear for and confess judgment (a) against Lessee for all amounts
as
to which Lessee is in default under this Agreement and (b) against Lessee in
any
action for writ of replevin or possession of the Equipment. No bond shall be
required.
(g)
Lessor is hereby authorized by Lessee to cause this Lease or other instruments,
including Uniform Commercial Code Financing Statements to be filed or recorded
for the purpose of showing Lessor's interest in the Equipment and Lessee agrees
that Lessor may execute such instruments for and on behalf of Lessee. All filing
fees reasonably incurred by Lessor in connection therewith and filing fees
incurred by Lessor's assignees in perfecting security interests shall be paid
by
Lessee or reimbursed to Lessor by Lessee.
(h)
No
consent or approval provided for herein shall be binding upon Lessor unless
signed on its behalf by an officer of Lessor. THIS LEASE AND EACH EQUIPMENT
SCHEDULE SHALL BE DEEMED TO HAVE BEEN MADE IN THE STATE OF CONNECTICUT AND
SHALL
BE GOVERNED IN ALL RESPECTS BY THE LAWS OF SUCH STATE. The Lessee accepts for
itself the non-exclusive jurisdiction of any Federal or State court of competent
jurisdiction in the State of Connecticut in any action, suit or proceeding
of
any kind against it which arises out of or by reason of this Lease or any
Equipment Schedule.
(i)
Lessee acknowledges that the late payment by Lessee to Lessor of monthly rental
and other sums due hereunder will cause Lessor harm and to incur costs not
contemplated by this Lease, the precise amount and severity of which will be
difficult to ascertain. Such costs include, but are not limited to,
administrative, accounting and legal charges which Lessor may incur due to
such
late payment. Accordingly, if any monthly rent or any other sum due from Lessee
shall not be received by Lessor or Lessor's assignee within thirty (30) days
after the same is due, Lessee shall pay to Lessor or Lessor's assignee a late
charge equal to five per cent (5%) of such overdue amount monthly until such
overdue amount is paid. Lessee acknowledges that such late charge represents
a
fair and reasonable estimate of the cost Lessor will incur by reason of a late
payment by Lessee. Acceptance of such late charge by Lessor shall in no event
constitute a waiver of Lessee's default, if any, with respect to such overdue
amounts, nor prevent Lessor from exercising any of the other rights and remedies
which Lessor may have pursuant to this Lease.
(j)
The
obligations which Lessee is required to perform during the term of this Lease
shall survive the expiration or other termination of this Lease.
(k)
Lessee will promptly execute and deliver to Lessor such further documents and
assurances and take such further action as Lessor may reasonably request in
order to effectuate the intent and purpose of this Lease and to establish and
protect the rights, interests and remedies intended to be created in favor
of
Lessor hereunder, including without limitation, the execution and filing of
financing statements and continuation statements with respect to this Lease,
the
Equipment and any Equipment Schedule. Lessee authorizes Lessor to effect any
such filing and Lessor's reasonable expenses (together with the reasonable
expenses of Lessor's assignees in this regard) shall be payable by Lessee on
demand.
|
LESSEE:
|
||||
|
Leasing
Technologies International, Inc.
|
NeoGenomics,
Inc.
|
|||
|
BY:
|
/s/
Xxxxxxx Xxxxxxxxxx
|
BY:
|
/s/
Xxxxxx X. Xxxxxxxxx
|
|
|
NAME:
|
Xxxxxxx
Xxxxxxxxxx
|
NAME:
|
Xxxxxx
X. Xxxxxxxxx
|
|
|
TITLE:
|
Vice
President
|
TITLE:
|
President
& Chief Scientific Officer
|
|
|
DATE:
|
November
5, 2008
|
DATE:
|
November
5. 2008
|
|
COUNTERPART
NO. ___ OF ___ EXECUTED COUNTERPARTS. TO THE EXTENT THAT THIS LEASE
AGREEMENT SHALL CONSTITUTE CHATTEL PAPER, NO SECURITY INTREST HEREIN MAY BE
CREATED OR PERFECTED THROUGH THE TRANSFER OR POSSESSION OF ANY COUNTERPART
OTHER
THAN COUNTERPART NO. 1.
