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EXHIBIT 10.9
MASTER EQUIPMENT LEASE NO. 053-9999
Under this Master Equipment Lease No. 053-9999 (the "Lease"), dated as of
November 15, 1995 Phoenix Leasing Incorporated, a California corporation
("Lessor"), hereby leases to Soane BioSciences, Inc., a Delaware corporation
("Lessee"), and Lessee hereby leases from Lessor, the equipment (herein called
"Equipment") which is described on the schedule attached hereto or any
subsequently-executed schedule entered into by Lessor and Lessee and which
incorporates this Lease by reference. Any such schedules shall hereinafter
individually be referred to as a "Schedule" and collectively be referred to as
the "Schedules." Lessor hereby leases the Equipment to Lessee upon the following
terms and conditions:
1. TERM OF AGREEMENT. The term of this Lease begins on the date set forth
above and shall continue thereafter and be in effect so long as and at any time
any Schedule entered into pursuant to this Lease is in effect. The Initial Term
and rent payable with respect to each leased item of Equipment shall be as set
forth in and as stated in the respective Schedule(s). The terms of each Schedule
hereto are subject to all conditions and provisions of this Lease as it may at
any time be amended. Each Schedule shall constitute a separate and independent
lease and contractual obligation of Lessee and shall incorporate the terms and
conditions of this Master Equipment Lease and any additional provisions
contained in such Schedule. In the event of a conflict between the terms and
conditions of this Lease and any additional provisions of such Schedule, the
additional provisions of such Schedule shall prevail with respect to such
Schedule only.
2. NON-CANCELLABLE LEASE. This Lease and any Schedule cannot be cancelled
or terminated except as expressly provided herein. This Lease (including all
Schedules to this Lease) constitutes a net lease and Lessee agrees that its
obligations to pay all rent and other sums payable hereunder (and under any
Schedule) and the rights of Lessor and assignee in and to such rent and other
sums, are absolute and unconditional and are not subject to any abatement,
reduction, setoff, defense, counterclaim or recoupment due or alleged to be due
to, or by reason of, any past, present or future claims which Lessee may have
against Lessor, any assignee, the manufacturer or seller of the Equipment, or
against any person for any reason whatsoever.
3. LESSOR COMMITMENT. So long as no Event of Default or event which with
the giving of notice or passage of time, or both, could become an Event of
Default has occurred or is continuing, Lessor agrees to lease to Lessee the
groups of Equipment described on each Schedule, subject to the following
conditions: (i) that in no event shall Lessor be obligated to lease Equipment to
Lessee hereunder where the aggregate purchase price of all Equipment leased to
Lessee hereunder would exceed $450,000.00; (ii) the amount of Equipment
purchased by Lessor at any one time shall be at least equal to $35,000.00 except
for a final advance which may be less than $35,000.00; (iii) Lessor shall not be
obligated to purchase Equipment hereunder after December 31, 1996; (iv) all
Lease documentation required by Lessor has been executed by Lessee or provided
by Lessee no later than December 6, 1995; (v) the equipment described on the
Schedule is acceptable to Lessor; (vi) with respect to each funding Lessee has
provided to Lessor each of the closing documents and other items described in
Exhibit A hereto (which documents shall be in form and substance acceptable to
Lessor) and which list may be modified for each subsequent funding; (vii) there
is no material adverse change in Lessee's condition, financial or otherwise, as
determined by Lessor, and Lessee so certifies, from (yy) the date of the most
recent financial statements delivered by Lessee to Lessor prior to execution of
this Lease, to (zz) the date of the proposed lease of the Equipment; (viii)
Lessee is performing according to its business plan referred to as Soane
BioSciences, Inc. "Forecast - July 95" dated 9/29/95 14:20 and "1996 Profit and
Loss Statement" and "1996
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Balance Sheet" both labeled Conservative Case (CC) and both dated 9/29/95, as
may be amended from time to time in form and substance acceptable to Lessor
("Business Plan"); (ix) Lessor or its agent has inspected and placed
identification labels on the Equipment; (x) Lessee shall offer to Lessor, on an
exclusive basis, all lease transactions for equipment contemplated by Lessee
until expiration of all Schedules; however if Lessor declines to finance any
such transaction or Lessee and Lessor cannot agree upon terms, then Lessee shall
be free to seek such financing from any other third party; and (xi) Lessor has
received in form and substance acceptable to Lessor; (a) Lessee's interim
financial statements signed by a financial officer of Lessee; and (b) evidence
of balance(s) in Lessee's bank checking account(s) at least equal to
$150,000.00.
4. NO WARRANTIES BY LESSOR. (a) Lessee has selected both (i) the
Equipment and (ii) the suppliers (herein called "Vendor") from whom Lessor is to
purchase the Equipment. LESSOR MAKES NO WARRANTY EXPRESS OR IMPLIED AS TO ANY
MATTER WHATSOEVER, INCLUDING THE CONDITION OF THE EQUIPMENT, ITS MERCHANTABILITY
OR ITS FITNESS FOR ANY PARTICULAR PURPOSE, AND AS TO LESSOR, LESSEE LEASES THE
EQUIPMENT "AS IS" AND WITH ALL FAULTS. (b) If the Equipment is not properly
installed, does not operate as represented or warranted by Vendor or is
unsatisfactory for any reason, Lessee shall make any claim on account thereof
solely against Vendor and shall, nevertheless, pay Lessor all rent payable under
this Lease, Lessee hereby waiving any such claims as against Lessor. Lessor
hereby agrees to assign to Lessee solely for the purpose of making and
prosecuting any said claim, to the extent assignable, all of the rights which
Lessor has against Vendor for breach of warranty or other representation
respecting the Equipment. Lessor shall have no responsibility for delay or
failure to fill the order. (c) Lessee understands and agrees that neither the
Vendor nor any salesman or other agent of the Vendor is an agent of Lessor. No
salesman or agent of Vendor is authorized to waive or alter any term or
condition of this Lease, and no representations as to the Equipment or any other
matter by the Vendor shall in any way affect Lessee's duty to pay the rent and
perform its other obligations as set forth in this lease. (d) Lessee hereby
requests lessor to purchase Equipment from Vendor and to lease Equipment to
Lessee on the terms and conditions of the Lease set forth herein. (e) Lessee
hereby authorizes Lessor to insert in this Lease and each Schedule hereto the
serial numbers and other identification data of the Equipment when determined by
Lessor.
5. LESSEE'S REPRESENTATIONS AND WARRANTIES. Lessee represents and
warrants that (a) it is a corporation in good standing under the laws of the
state of its incorporation, and duly qualified to do business, and will remain
duly qualified during the term of this Lease, in each state where the Equipment
will be located, as specified on each Schedule hereto; (b) it has full authority
to execute and deliver this Lease and perform the terms hereof, and this Lease
has been duly authorized and constitutes valid and binding obligations of Lessee
enforceable in accordance with its terms; (c) this Lease will not contravene any
law, regulation or judgment affecting Lessee or result in any breach of any
agreement or other instrument binding on Lessee; (d) no consent of Lessee's
shareholders or holder of any indebtedness, or filing with, or approval of, any
governmental agency or commission, is a condition to the performance of the
terms hereof; (e) there is no action or proceeding pending or threatened against
Lessee before any court or administrative agency which might have a materially
adverse effect on the business, financial condition or operations of Lessee; (f)
no deed of trust, mortgage or third party interest arising through Lessee will
attach to the Equipment or the Lease; (g) the Equipment will remain at all times
under applicable law, removable personal property, free and clear of any lien or
encumbrance in favor of Lessee or any other person, notwithstanding the manner
in which the Equipment may be attached to any real property; (h) all credit,
financial and any other information submitted to Lessor herewith or any other
time is true and correct; and (i) Lessee has provided, or will provide if
requested, Lessee's tax identification number.
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6. EQUIPMENT ORDERING. Lessee shall be responsible for all packing,
rigging, transportation and installation charges for the Equipment and Lessor
may separately invoice Lessee for such charges. Lessee has selected the
Equipment itself and shall arrange for delivery of Equipment so that it can be
accepted in accordance with Section 7 hereof. Lessee hereby agrees to indemnify
and hold Lessor harmless form any claims, liabilities, costs and expenses,
including reasonable attorneys' fees, incurred by Lessor arising out of any
purchase orders or assignments executed by Lessor with respect to any Equipment
or services relating thereto.
7. LESSEE ACCEPTANCE. Lessee shall return to Lessor the signed and
dated Acceptance Notice attached to each Schedule hereto (a) acknowledging the
Equipment has been received, installed and is ready for use and (b) accepting
it as satisfactory in all respects for the purposes of this Lease. Lessor is
authorized to fill in the Rent Start Date on each Schedule in accordance with
the foregoing.
8. LOCATION; INSPECTION; LABELS. Equipment shall be delivered to and
shall not be removed from the Equipment "Location" shown on each Schedule
without Lessor's prior written consent, which "Location" shall in all events be
within the United States. Lessor shall have the right to inspect Equipment at
any reasonable time. Lessee shall be responsible for all labor, material and
freight charges incurred in connection with any removal or relocation of such
Equipment which is requested by the Lessee and consented to by Lessor, as well
as for any charges due to the installation or moving of the Equipment. The
rental payments shall continue during any period in which the Equipment is in
transit during a relocation. Lessor or its agent shall xxxx and label
Equipment, which labels shall state Equipment is owned by Lessor, and Lessee
shall keep such labels on the Equipment as labeled by Lessor or its agent.
9. EQUIPMENT MAINTENANCE. (a) General. Lessee will locate or base each
item of Equipment where designated in an Acceptance Notice and will reasonably
permit Lessor to inspect such item of Equipment and its maintenance records.
Lessee will at its sole expense comply with all applicable laws, rules,
regulations, requirements and orders with respect to the use, maintenance,
repair, condition, storage and operation of each item of Equipment. Except as
required herein, Lessee will not make any addition or improvement to any item
of Equipment that is not readily removable without causing material damage to
any item or impairing its original value or utility. Any addition or
improvement that is so required or cannot be so removed will immediately become
the property of Lessor. (b) Service and Repair. With respect to computer
equipment, other than personal computers, Lessee has entered into, and will
maintain in effect, Vendor's standard maintenance contract or another contract
satisfactory to Lessor for a period equal to the term of each Schedule and
extensions thereto which provides for the maintenance of the Equipment and
repairs and replacement parts thereof in good condition and working order, all
in accordance with the terms of such maintenance contract. Lessee shall have
the Equipment certified for the Vendor's standard maintenance agreement prior
to delivery to Lessor upon expiration of this Lease. With respect to any other
Equipment, Lessee will, at its sole expense, maintain and service, and repair
any damage to, each item of Equipment in a manner consistent with prudent
industry practice and Lessee's own practice so that such item of Equipment is
at all times (i) in the same condition as when delivered to Lessee, except for
ordinary wear and tear, (ii) in good operating order for the function intended
by its manufacturer's warranties and recommendations.
10. LOSS OR DAMAGE. Lessee assumes the entire risk of loss to the
Equipment through use, operation or otherwise. Lessee hereby indemnifies and
holds harmless Lessor from and against all claims, loss of rental payments,
costs, damages, and expenses relating to or resulting from any loss, damage or
destruction of the Equipment, any such
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occurrence being hereinafter called a "Casualty Occurrence." On the first rental
payment date following such Casualty Occurrence, or, if there is no such rental
payment date, thirty (30) days after such Casualty Occurrence, Lessee shall (i)
repair the Equipment, returning it to good operating condition or (ii) replace
the Equipment with identical equipment in good condition and repair, the title
to which shall vest in Lessor and which thereafter shall be subject to the terms
of this Lease; or (iii) pay to Lessor (a) any unpaid accrued amounts relating to
such Equipment due Lessor under this Lease up to the date of the Casualty
Occurrence, and (b) a sum equal to the Casualty Value as set forth in the
Casualty Value table attached to each Schedule hereto for such Equipment. Upon
the making of such payment, the term of this Lease as to each unit of Equipment
with respect to which the Casualty Value was paid shall terminate.
11. GENERAL INDEMNITY. Lessee will protect, indemnify and save harmless
Lessor from and against all liabilities, obligations, claims, damages,
penalties, causes of action, costs and expenses, imposed upon or incurred by or
asserted against Lessor or any assignee of Lessor by Lessee or any third party
by reason of the occurrence or existence (or alleged occurrence or existence) of
any act or event relating to or caused by the Equipment, including but not
limited to, consequential or special damages of any kind, or any failure on the
part of Lessee to perform or comply with any of the terms of this Lease. In the
event that any action, suit or proceeding is brought against Lessor by reason of
any such occurrence, Lessee, upon request of Lessor, will at Lessee's expense
resist and defend such action, suit or proceeding or cause the same to be
resisted and defended by counsel designated and approved by Lessor. Lessee's
obligations under this Section 11 shall survive the expiration of this Lease
with respect to acts or events occurring or alleged to have occurred prior to
the return of the Equipment to Lessor at the end of the Lease term.
12. INSURANCE. Lessee at its expense shall keep the Equipment insured for
the entire term and any extensions of this Lease against all risks for at least
the replacement value of such Equipment and shall provide for (a) loss payable
endorsement to Lessor or any assignee of Lessor. Lessee shall maintain public
liability and property damage insurance in an amount not less than
$1,000,000.00, naming Lessor as additional insured. Such insurance shall contain
insurer's agreement to give thirty (30) days written notice to Lessor before
cancellation or material change of any policy of insurance. Lessee will provide
Lessor and any assignee of Lessor with a certificate of insurance from the
issuer evidencing Lessor's or such assignee's interest in the policy of
insurance. Such insurance shall cover any Casualty Occurrence to any unit of
Equipment. Notwithstanding anything in Section 10 or this Section 12 to the
contrary, this Lease and Lessee's obligations hereunder and under each Schedule
shall remain in full force and effect with respect to any unit of Equipment
which is not subject to a Casualty Occurrence. If Lessee fails to provide or
maintain insurance as required herein, Lessor shall have the right, but shall
not be obligated to obtain such insurance. In that event, Lessee shall pay to
Lessor the cost thereof.
13. TAXES. Lessee agrees to reimburse Lessor for, (or pay directly if
instructed by Lessor), and agrees to indemnify and hold Lessor harmless from,
all fees (including, but not limited to, license, documentation, recording and
registration fees), and all sales, use, gross receipts, personal property,
occupational, value added to other taxes, levies, imposts, duties, assessments,
charges, or withholdings of any nature whatsoever, together with any penalties,
fines, additions to tax, or interest thereon (all of the foregoing being
hereafter referred to an "Impositions") except same as may be attributable to
Lessor's income, arising at any time prior to or during the term of this Lease,
or upon termination or early termination of this Lease and levied or imposed
upon Lessor directly or otherwise by any Federal, state or local government in
the United States or by any
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foreign country or foreign or international taxing authority upon or with
respect to (i) the Equipment, (ii) the exportation, importation, registration,
purchase, ownership, delivery, leasing, possession, use, operation, storage,
maintenance, repair, return, sale, transfer of title, or other disposition
thereof, (iii) the rentals, receipts, or earnings arising from the Equipment, or
any disposition of the rights to such rentals, receipts, or earnings, (iv) any
payment pursuant to this Lease, and (v) this Lease or the transaction or any
part thereof. Lessee's obligations under this Section 13 shall survive the
expiration of this Lease with respect to acts or events occurring or alleged to
have occurred prior to the return of the Equipment to Lessor at the end of the
Lease term.
14. PAYMENT BY LESSOR. If Lessee shall fail to make any payment or
perform any act required hereunder, then Lessor may, but shall not be required
to, after such notice to Lessee as is reasonable under the circumstances, make
such payment or perform such act with the same effect as if made or performed by
Lessee. Lessee will upon demand reimburse Lessor for all sums paid and all costs
and expenses incurred in connection with the performance of any such act.
15. SURRENDER OF EQUIPMENT. Upon termination or expiration of this Lease,
with respect to each group of Equipment, Lessee will forthwith surrender the
Equipment to Lessor delivered in as good order and condition as originally
delivered, reasonable wear and tear excepted. Lessor may, at its sole option,
arrange for removal and transportation of the Equipment provided that Lessee's
obligations under Sections 10, 11 and 12 shall not be released. Lessee shall
bear all expenses of delivering (which include, but are not limited to, the
de-installation, insurance, packaging and transportation of) the Equipment to
Lessor's location or other location within the United States as Lessor may
request. In the event Lessee fails to deliver the Equipment as directed above,
all obligations of Lessee under this Lease, including rental payments, shall
remain in full force and effect until Lessee delivers the Equipment to Lessor.
16. ASSIGNMENT. WITHOUT LESSOR'S PRIOR WRITTEN CONSENT, SUCH CONSENT NOT
TO BE UNREASONABLY WITHHELD, LESSEE SHALL NOT (a) ASSIGN, TRANSFER, PLEDGE,
HYPOTHECATE OR OTHERWISE DISPOSE OF THIS LEASE, EQUIPMENT, OR ANY INTEREST
THEREIN, OR (b) SUBLET OR LEND EQUIPMENT OR PERMIT IT TO BE USED BY ANYONE OTHER
THAN LESSEE OR LESSEE'S EMPLOYEES. LESSOR MAY ASSIGN THIS LEASE OR GRANT A
SECURITY INTEREST IN ANY OR ALL EQUIPMENT, OR BOTH, IN WHOLE OR IN PART TO ONE
OR MORE ASSIGNEES OR SECURED PARTIES WITHOUT NOTICE TO LESSEE. If Lessee is
given notice of such assignment it agrees to acknowledge receipt thereof in
writing and Lessee shall execute such additional documentation as Lessor's
assignee shall require. Each such assignee and/or secured party shall have all
of the rights, but none of the obligations, of Lessor under this Lease, unless
such assignee or secured party expressly agrees to assume such obligations in
writing. Lessee shall not assert against any assignee and/or secured party any
defense, counterclaim or offset that Lessee may have against Lessor.
Notwithstanding any such assignment, and providing no Event of Default has
occurred and is continuing, Lessor, or its assignees, secured parties, or their
agents or assigns, shall not interfere with Lessee's right to quietly enjoy use
of Equipment subject to the terms and conditions of this Lease. Subject to the
foregoing, this Lease inures to the benefit of and is binding upon the
successors and assignees of the parties hereto. Lessee acknowledges that any
such assignment by Lessor will not materially change Lessee's duties or
obligations under the Lease or increase any burden of risk on Lessee.
17. DEFAULT. (a) Event of Default. Any of the following events or
conditions shall constitute an "Event of Default" hereunder: (i) Lessee's
failure to pay any monies due to Lessor hereunder or under any Schedule beyond
the fifth (5th) day after the same is due; (ii) Lessee's failure to comply with
its obligations under Section 12 or Section 16;
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(iii) Lessee's failure to comply with or perform any term, covenant, condition,
warranty or representation of this Lease or any Schedule hereto or under any
other agreement between Lessee and Lessor or under any lease of real property
covering the location of Equipment if such failure to comply or perform is not
cured by Lessee within thirty (30) days of receipt of notice thereof; (iv)
seizure of the Equipment under legal process; (v) the filing by or against
Lessee of a petition for reorganization or liquidation under the Bankruptcy
Code or any amendment thereto or under any other insolvency law providing for
the relief of debtors; (vi) the voluntary or involuntary making of an
assignment of a substantial portion of its assets by Lessee, or any guarantor
("Guarantor") under any guaranty executed in connection with this Lease
("Guaranty"), for the benefit of its creditors, the appointment of a receiver
or trustee for Lessee or any Guarantor for any of Lessee's or Guarantor's
assets, the institution by or against Lessee or any Guarantor of any formal or
informal proceeding for dissolution, liquidation, settlement of claims against
or winding up of the affairs of Lessee or any Guarantor, provided that in the
case of all such involuntary proceedings, same are not dismissed within sixty
(60) days after commencement; or (vii) the making of Lessee or any Guarantor of
a transfer of all or a material portion of Lessee's or Guarantor's assets or
inventory not in the ordinary course of business.
(b) Remedies. If any Event of Default shall have occurred:
(i) Lessor may proceed by appropriate court action or actions either at
law or in equity to enforce performance by Lessee, of the applicable covenants
of this Lease, or to recover damages therefor; or
(ii) Lessee will, without demand, on the next rent payment date following
the Event of Default, pay to Lessor as liquidated damages which the parties
agree are fair and reasonable under the circumstances existing at the time this
Lease is entered into, and not as a penalty, an amount equal to the Casualty
Value of the Equipment set forth in Exhibit C together with any rent or other
amounts past due and owing by Lessee hereunder; and
(iii) Lessor may, without notice to or demand upon Lessee:
(a) Take possession of the Equipment and lease or sell the same or
any portion thereof, for such period, amount, and to such entity as Lessor
shall elect. The proceeds of such lease or sale will be applied by Lessor (A)
first, to pay all costs and expenses, including reasonable legal fees and
disbursements, incurred by Lessor as a result of the default and the exercise
of its remedies with respect thereto, (B) second, to pay Lessor an amount equal
to any unpaid rent or other amounts past due and payable plus the Casualty
Value, to the extent not previously paid by Lessee, and (C) third, to reimburse
Lessee for the Casualty Value to the extent previously paid. Any surplus
remaining thereafter will be retained by Lessor.
(b) Take possession of the Equipment and hold and keep idle the same
or any portion thereof.
Lessee agrees to pay all internal and out-of-pocket costs of
Lessor related to the exercise of its remedies, including direct costs of its
in-house counsel and out-of-pocket legal fees and expenses. At Lessor's
request, Lessee shall assemble the Equipment and make it available to Lessor at
such location as Lessor may designate. Lessee waives any right it may have to
redeem the Equipment.
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Repossession of any or all Equipment shall not terminate this
Lease or any Schedule unless Lessor notifies Lessee in writing. Any amount
required to be paid under this Section shall be increased by a service charge at
the rate of 2% per month, or the highest rate of interest permitted by
applicable law, whichever is less, accruing from the date the Casualty Value or
other amounts are payable hereunder until such amounts are paid.
None of the above remedies is intended to be exclusive, but each
is cumulative and in addition to any other remedy available to Lessor, and all
may be enforced separately or concurrently.
18. LATE PAYMENTS. Lessee shall pay to Lender an amount equal to the
greater of 18% of all amounts owed Lessor by Lessee which are not paid when due
or $100, but in no event an amount greater than the highest rate permitted by
applicable law. If such funds have not been received by Lessor at Lessor's place
of business or by Lessor's designated agent by the date such funds are due under
this Lease, Lessor shall xxxx Lessee for such charges. Lessee acknowledges that
invoices for rentals due hereunder are sent by Lessor for Lessee's convenience
only. Lessee's non-receipt of an invoice will not relieve Lessee of its
obligation to make rent payments hereunder.
19. LESSOR'S EXPENSE. Lessee shall pay Lessor all costs and expenses
including reasonable attorney's fees and the fees of the collection agencies,
incurred by Lessor in enforcing any of the terms, conditions or provisions
hereof.
20. OWNERSHIP; PERSONAL PROPERTY. The Equipment shall be and remain
personal property of Lessor, and Lessee shall have no right, title or interest
therein or thereto except as expressly set forth in this Lease, notwithstanding
the manner in which it may be attached or affixed to real property, and upon
termination or expiration of the Lease term, Lessee shall have the duty and
lessor shall have the right to remove the Equipment from the premises where the
same by located whether or not affixed or attached to the real property or any
building, at the cost and expense of Lessee.
21. ALTERATIONS; ATTACHMENTS. No alterations or attachments shall be made
to the Equipment without Lessor's prior written consent, which shall not be
given for changes that will affect the reliability and utility of the Equipment
or which cannot be removed without damage to the Equipment, or which in any way
affect the value of the Equipment for purposes of resale or re-lease.
22. FINANCING STATEMENT. Lessee will execute financing statements pursuant
to the Uniform Commercial Code. Lessee authorizes Lessor to file financing
statements signed only by Lessor (where such authorization is permitted by law)
at all places where Lessor deems necessary.
23. MISCELLANEOUS. (a) Lessee shall provide Lessor with such corporate
resolutions, financial statements and other documents as Lessor shall request
from time to time. (b) Lessee represents that the Equipment is being leased
hereunder for business purposes. (c) Time is of the essence with respect to this
Lease. (d) Lessee shall keep its books and records in accordance with generally
accepted accounting principles and practices consistently applied and shall
deliver to Lessor its annual audited financial statements, unaudited monthly
financial statements to include any financial information given to Lessee's
Board of Directors, and signed by an officer of Lessee and such other unaudited
financial statements as may be reasonably requested by Lessor. (e) Any action
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by Lessee against Lessor for any default by Lessor under this Lease, including
breach of warranty or indemnity, shall be commenced within one (1) year after
any such cause of action accrues.
24. NOTICES. All notices hereunder shall be in writing, by registered
mail, or reliable messenger or delivery service and shall be directed, as the
case may be, to Lessor at 0000 Xxxxxx Xxxxxxxxx, Xxx Xxxxxx, Xxxxxxxxxx 00000,
Attention: Account Management and to Lessee at Soane BioSciences, Inc., 0000
Xxxxx Xxx, Xxxxxxx, XX 00000-0000, Attention: Xxxxx X. Xxxxxxx.
25. ENTIRE AGREEMENT. Lessee acknowledges that Lessee has read this Lease,
understands it and agrees to be bound by its terms, and further agrees that it
and each Schedule constitute the entire agreement between Lessor and Lessee with
respect to the subject matter hereof and supersedes all previous agreements,
promises, or representations. The terms and conditions hereof shall prevail
notwithstanding any variance with the terms of any purchase order submitted by
the Lessee with respect to any Equipment covered hereby.
26. AMENDMENT. This Lease may not be changed, altered or modified except
by an instrument in writing signed by an officer of the Lessor and the Lessee.
27. WAIVER. Any failure of Lessor to require strict performance by Lessee
or any waiver by Lessor of any provision herein shall not be construed as a
consent or waiver of any other breach of the same or any other provision.
28. SEVERABILITY. If any provision of this Lease is held invalid, such
invalidity shall not affect any other provisions hereof.
29. JURISDICTION AND WAIVER OF JURY TRIAL. This Lease shall be governed by
and construed under the laws of the State of California. It is agreed that
exclusive jurisdiction and venue for any legal action between the parties
arising out of this Lease shall be in the Superior Court for Marin County,
California, or, in cases where Federal diversity jurisdiction is available, in
the Untied States District Court for the Northern District of California.
LESSEE, TO THE EXTENT IT MAY LAWFULLY DO SO, HEREBY WAIVES ITS RIGHT TO TRIAL BY
JURY IN ANY ACTION BROUGHT ON OR WITH RESPECT TO THIS LEASE, ANY SCHEDULE, OR
ANY AGREEMENT EXECUTED IN CONNECTION HEREWITH.
30. NATURE OF TRANSACTION. Lessor makes no representation whatsoever,
express or implied, concerning the legal character of the transaction evidenced
hereby, for tax or any other purpose.
31. SECURITY INTEREST. (a) One executed copy of the Lease will be marked
"Original" and all other counterparts will be duplicates. To the extent, if any,
that this Lease constitutes chattel paper (as such term is defined in the
Uniform Commercial Code as in effect in any applicable jurisdiction) no security
interest in the lease may be created in any documents other than the "Original."
(b) There shall be only one original of each Schedule and it shall be marked
"Original," and all other counterparts will be duplicates. To the extent, if
any, that any Schedule(s) to this Lease constitutes chattel paper (or as such
term is defined in the Uniform Commercial Code as in effect in any applicable
jurisdiction) no security interest in any Schedule(s) may be created in any
documents other than the "Original."
32. SUSPENSION OF OBLIGATIONS. The obligations of Lessor hereunder will be
suspended to the extent that it is hindered or prevented from complying
therewith because
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of labor disturbances, including but not limited to strikes and lockouts, acts
of God, fires, storms, accidents, failure of the manufacturer to deliver any
item of Equipment, governmental regulations or interference, or any cause
whatsoever not within the sole and exclusive control of Lessor.
33. SOFTWARE. For the term of this Lease, and so long as no Event of
Default has occurred and is continuing, Lessor hereby assigns to Lessee all of
Lessor's rights under any License Agreement executed by Lessor in connection
with the Equipment (except for any right of Lessor to be reimbursed for the
License Fee). Lessee agrees to be bound by the provisions of any such License
Agreement and to perform all obligations of Lessor (except Lessor's payment
obligations) thereunder. Lessee acknowledges that all of Lessee's obligations
under the Lease with respect to the Equipment will apply equally to the
software, including but not limited to Lessee's obligation to pay rent to
Lessor.
34. STOCK WARRANT. Lessee agrees that it will issue to Lessor upon
execution of this Lease a Warrant in the form of Warrant Agreement attached
hereto as Exhibit D. Lessee and Lessor agree that the value of the Warrant
hereunder is ten dollars ($10.00).
36. COMMITMENT FEE. Lessee has paid to Lessor a commitment fee ("Fee") of
$10,000.00. The Fee shall be applied by Lessor first to reimburse Lessor for
all out-of-pocket UCC search costs, inspections and appraisal fees incurred by
Lessor, and then proportionally to the first month's rent for each Schedule
hereunder in the proportion that the purchase price of the Equipment leased
pursuant to the Schedule bears to Lessor's entire commitment. However, the
portion of the Fee which is not applied to rental shall be non-refundable
except if Lessor defaults in its obligations pursuant to Section 3.
37. FINANCE LEASE. The parties agree that this lease is a "Finance Lease"
as defined by section 10-103(a)(7) of the California Commercial Code
(Cal.Com.C). Lessee acknowledges either (a) that Lessee has reviewed and
approved any written Supply Contract (as defined by Cal.Com.C. Section
10-103(a)(25)) covering Equipment purchased from the "Supplier" (as defined by
Cal.Com.C. Section 10-103(a)(24)) thereof for lease to Lessee or (b) that
Lessor has informed or advised Lessee, in writing, either previously or by this
Lease of the following: (i) the identity of the Supplier; (ii) that the Lessee
may have rights under the Supply Contract; and (iii) that the Lessee may
contact the Supplier for a description of any such rights Lessee may have under
the Supply Contract. Lessee hereby waives any rights and remedies Lessee may
have under Cal.Com.C. Sections 10-508 through 522.
38. PURCHASE OR RENEWAL REQUIREMENT FOR ALL SCHEDULES TO MASTER EQUIPMENT
LEASE. At the expiration of the Initial Term for Schedule No. 1, and
notwithstanding anything to the contrary in the Lease, upon 90 days prior
written notice to Lessor, Lessee shall either:
No. 1
To extend the Initial Term of all Schedules to this Lease for an additional
twelve (12) months ("Renewal Term:) commencing with the end of the Initial
Term of each Schedule at a rate of 2.0% per month of the Equipment's
original Purchase Price; followed by an option to purchase all, but not
less than all, the Equipment AS-IS, WHERE-IS for an amount equal to 10% of
the Equipment's original Purchase Price for all Schedules all determined
prior to expiration of the Initial Term for Schedule No. 1, or
-9-
10
No. 2
Purchase AS-IS, WHERE-IS all, but not less than all, of the Equipment
covered under all Schedules to this Lease at the expiration of the Initial
Term for each such Schedule for an amount equal to the Fair Market Value of
the Equipment but not less than ten percent (10%) or more than twenty
percent (20%) of the Equipment's original purchase price, whereupon Lessor
shall issue to Lessee a Xxxx of Sale for the Equipment transferring it to
Lessee without any representation or warranty whatsoever.
Lessee's right to exercise one of these options is conditioned upon (a) Lessee
having performed all of the terms and conditions of the Lease and this Schedule
and (b) Lessee's payment to Lessor at the end of the Initial Term for each
Schedule to this Lease of the applicable amount, including any sales taxes and
other amounts due.
If Lessee and Lessor cannot agree on Fair Market Value or Fair Rental Value,
such Value shall be determined by appraisal, with expenses to be shared by
Lessor and Lessee. Appraisal shall be a procedure whereby two recognized
independent appraisers, one chosen by Lessor and one by Lessee, shall mutually
agree on the amount in question. If the appraisers are unable to agree and the
higher appraisal is no more than 110% of the lower appraisal, the Value shall
be equal to the average of the two appraisals. If the higher appraisal is more
than 110% of the lower appraisal, the two appraisals shall jointly name an
independent third appraiser and the Value shall equal the average of the two
closest appraisals.
For each Schedule hereunder, in the event Lessee does not exercise any option,
or, if Lessee and Lessor cannot agree on the Value of the Equipment, and Lessee
retains possession of the Equipment after the end of the Initial Term or Renewal
Term as applicable, all obligations of Lessee under the Lease, including current
rental payments, shall remain in full force and effect during such holdover
period on a month-to-month basis, until the earlier of (i) Lessee's purchase of
the Equipment at a price or commencement of the Renewal Term as then agreed by
Lessee and Lessor, (ii) return of the Equipment to Lessor, or (iii) Lessor's
taking possession of the Equipment and termination of the Lease after notice to
Lessee.
Lease shall be responsible for all applicable taxes in connection with any
purchase of Equipment by Lessee.
In the event Lessee does not provide 90 days prior written notice as specified
above, Lessee shall be deemed to have selected No. 1 above for all Schedules to
the Lease.
IN WITNESS WHEREOF, the parties hereto have executed this Lease.
PHOENIX LEASING INCORPORATED SOANE BIOSCIENCES, INC.
By: /s/ [Signature Illegible] By: /s/ XXXXX X. XXXXXXX
------------------------- -------------------------
Title: Contract Administrator Title: President/CEO
------------------------- -----------------------
Headquarters Location:
0000 Xxxxx Xxx
Xxxxxxx, XX 00000-0000
County of Alameda
Exhibit A - Closing Memorandum
-10-
11
STATE OF CALIFORNIA
UNIFORM COMMERCIAL CODE-FINANCING STATEMENT-FORM UCC-1 (REV. 1/90)
This FINANCING STATEMENT is presented for filing and will remain effective,
with certain exceptions, for five years from the date of filing, pursuant to
Section 9403 of the California Uniform Commercial Code.
------------------------------------------------------------------------------------------------------------------------
1. DEBTOR (LAST NAME, FIRST-IF AN INDIVIDUAL) 1A. SOCIAL SECURITY OR FEDERAL TAX NO.
Soane BioSciences, Inc.
------------------------------------------------------------------------------------------------------------------------
1B. XXXXXXX XXXXXXX 0X. XXXX, XXXXX 0X. XXX CODE
0000 Xxxxx Xxx Xxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------
2. ADDITIONAL DEBTOR (IF ANY) (LAST NAME, FIRST-IF AN INDIVIDUAL) 2A. SOCIAL SECURITY OR FEDERAL TAX NO.
------------------------------------------------------------------------------------------------------------------------
2B. XXXXXXX XXXXXXX 0X. XXXX, XXXXX 0X. XXX CODE
------------------------------------------------------------------------------------------------------------------------
3. DEBTOR'S TRADE NAME OR STYLES (IF ANY) 3A. FEDERAL TAX NUMBER
------------------------------------------------------------------------------------------------------------------------
4. SECURED PARTY 4A. SOCIAL SECURITY NO., FEDERAL TAX NO.
OR BANK TRANSIT AND A.B.A. NO.
NAME Phoenix Leasing Incorporated
MAILING ADDRESS 0000 Xxxxxx Xxxxxxxxx
XXXX Xxx Xxxxxx XXXXX XX ZIP CODE 94901
------------------------------------------------------------------------------------------------------------------------
5. ASSIGNEE OF SECURED PARTY (IF ANY) 5A. SOCIAL SECURITY NO., FEDERAL TAX NO.
OR BANK TRANSIT AND A.B.A. NO.
NAME
MAILING ADDRESS
CITY STATE ZIP CODE
------------------------------------------------------------------------------------------------------------------------
6. This FINANCING STATEMENT covers the following types or items of property
(include description of real property on which located and owner of record
when required by Instruction 4).
Equipment, fixtures and general intangibles more specifically described on
Exhibit A attached hereto, leased by Secured Party as Lessor to Debtor as
Lessee under that certain Master Equipment Lease dated ______________, 19__
(the "Lease"); said Lease and all rentals and other sums due thereunder;
all proceeds including insurance and general intangibles related thereto.
The goods on the attached Exhibit A are or are to become fixtures on 0000
Xxxxx Xxx, Xxxxxxx, XX 00000 and this financing statement is to be recorded
in the real estate records. The name of the record owner is _____________.
The goods that are or are to become fixtures are located on the real
property more fully described on the attached Exhibit B.
FILE WITH ALAMEDA COUNTY OFFICIAL RECORDS (Fixture Filing).
------------------------------------------------------------------------------------------------------------------------
7. CHECK [X] 7A. [X] PRODUCTS OF COLLATERAL 7B. DEBTOR(S) SIGNATURE NOT REQUIRED IN ACCORDANCE WITH
IF APPLICABLE ARE ALSO COVERED INSTRUCTION ?(?) ITEM
[ ] (1) [ ] (2) [ ] (3) [ ] (4)
------------------------------------------------------------------------------------------------------------------------
8. CHECK [X] [ ] DEBTOR IS A "TRANSMITTING UTILITY" IN ACCORDANCE WITH UCC Section 9105 (?)(?)
IF APPLICABLE
------------------------------------------------------------------------------------------------------------------------
9. DATE: C 10. THIS SPACE FOR USE OF FILING OFFICER
O (DATE, TIME, FILE NUMBER
BY: /s/ XXXXX X. XXXXXXX 11/29/95 D AND FILING OFFICER)
SIGNATURE(S) OF DEBTOR(S) E
------------------------------------------------------------------------------------------------------------------------
Soane BioSciences, Inc. 1
TYPE OR PRINT NAME(S) OF DEBTOR(S) 2
---------------------------------------------------
BY: 3
SIGNATURE(S) OF SECURED PARTY(IES)
--------------------------------------------------- 4
Phoenix Leasing Incorporated
TYPE OR PRINT NAME(S) OF SECURED PARTY(IES) 5
---------------------------------------------------
1. Return copy to: 6
NAME
XXXXXXX 0
XXXX
0
0
00
XXXXX XX XXXXXXXXXX
UNIFORM COMMERCIAL CODE-FINANCING STATEMENT-FORM UCC-1 (REV. 1/90)
This FINANCING STATEMENT is presented for filing and will remain effective,
with certain exceptions, for five years from the date of filing, pursuant to
Section 9403 of the California Uniform Commercial Code.
------------------------------------------------------------------------------------------------------------------------
1. TRANSFEROR (LAST NAME, FIRST-IF AN INDIVIDUAL) 1A. SOCIAL SECURITY OR FEDERAL TAX NO.
Soane BioSciences, Inc.
------------------------------------------------------------------------------------------------------------------------
1B. XXXXXXX XXXXXXX 0X. XXXX, XXXXX 0X. XXX CODE
0000 Xxxxx Xxx Xxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------
2. ADDITIONAL DEBTOR (IF ANY) (LAST NAME, FIRST-IF AN INDIVIDUAL) 2A. SOCIAL SECURITY OR FEDERAL TAX NO.
------------------------------------------------------------------------------------------------------------------------
2B. XXXXXXX XXXXXXX 0X. XXXX, XXXXX 0X. XXX CODE
------------------------------------------------------------------------------------------------------------------------
3. DEBTOR'S TRADE NAME OR STYLES (IF ANY) 3A. FEDERAL TAX NUMBER
------------------------------------------------------------------------------------------------------------------------
4. TRANSFEREE 4A. SOCIAL SECURITY NO., FEDERAL TAX NO.
OR BANK TRANSIT AND A.B.A. NO.
NAME Phoenix Leasing Incorporated
MAILING ADDRESS 0000 Xxxxxx Xxxxxxxxx
XXXX Xxx Xxxxxx XXXXX XX ZIP CODE 94901
------------------------------------------------------------------------------------------------------------------------
5. ASSIGNEE OF SECURED PARTY (IF ANY) 5A. SOCIAL SECURITY NO., FEDERAL TAX NO.
OR BANK TRANSIT AND A.B.A. NO.
NAME
MAILING ADDRESS
CITY STATE ZIP CODE
------------------------------------------------------------------------------------------------------------------------
6. This FINANCING STATEMENT covers the following types or items of property
(include description of real property on which located and owner of record
when required by Instruction 4).
Notice is hereby given to the Creditors of Soane BioSciences, Inc.,
Transferor(s), whose principal address is 3916 Trust Way, City of Hayward,
County of Alameda, State of California, that a Sale and Leaseback is about
to be made to Phoenix Leasing Incorporated, Transferee(s), whose business
address is 0000 Xxxxxx Xxxxxxxxx, Xxxx xx Xxx Xxxxxx, Xxxxxx of Marin,
State of California.
The property to be transferred is located at 0000 Xxxxx Xxx, Xxxx xx
Xxxxxxx, Xxxxxx of Alameda, State of California. Said property is described
in general as analytical and production equipment of that business known as
Soane BioSciences, Inc.
The Sale and Leaseback will be consummated on or after the ____ day of
__________, 19 __, at 0000 Xxxxxx Xxxxxxxxx, Xxxx xx Xxx Xxxxxx, Xxxxxx of
Marin, State of California.
------------------------------------------------------------------------------------------------------------------------
7. CHECK [X] 7A. [X] PRODUCTS OF COLLATERAL 7B. DEBTOR(S) SIGNATURE NOT REQUIRED IN ACCORDANCE WITH
IF APPLICABLE ARE ALSO COVERED INSTRUCTION ?(?) ITEM
[ ] (1) [ ] (2) [ ] (3) [ ] (4)
------------------------------------------------------------------------------------------------------------------------
8. CHECK [X] [ ] DEBTOR IS A "TRANSMITTING UTILITY" IN ACCORDANCE WITH UCC Section 9105 (?)(?)
IF APPLICABLE
------------------------------------------------------------------------------------------------------------------------
9. DATE: C 10. THIS SPACE FOR USE OF FILING OFFICER
O (DATE, TIME, FILE NUMBER
BY: /s/ XXXXX X. XXXXXXX 11/29/95 D AND FILING OFFICER)
SIGNATURE(S) OF DEBTOR(S) E
------------------------------------------------------------------------------------------------------------------------
Soane BioSciences, Inc. 1
TYPE OR PRINT NAME(S) OF DEBTOR(S) 2
---------------------------------------------------
BY: 3
SIGNATURE(S) OF SECURED PARTY(IES)
--------------------------------------------------- 4
PHOENIX LEASING INCORPORATED
TYPE OR PRINT NAME(S) OF SECURED PARTY(IES) 5
---------------------------------------------------
1. Return copy to: 6
NAME
ADDRESS 7
CITY
8
9
