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EXHIBIT 10.46
MASTER EQUIPMENT LEASE AGREEMENT
DATED AS OF
JULY 11, 1996
BETWEEN
FINANCING FOR SCIENCE INTERNATIONAL, INC.
(LESSOR)
AND
BIOFIELD CORP.
(LESSEE)
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TABLE OF CONTENTS
SECTION PAGE
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1. Agreement for Lease of Equipment..............................1
2. Delivery and Acceptance of Equipment..........................1
3. Disclaimer of Warranties......................................2
4. Primary Term..................................................2
5. Rent..........................................................2
6. Lessee's Representations and Warranties.......................3
7. Identification Marks..........................................4
8. Fees and Taxes................................................5
9. General Indemnity.............................................5
10. Use of Equipment; Location; Liens.............................6
11. Maintenance and Repairs; Additions to
Equipment.....................................................6
12. Loss, Damage or Destruction of Equipment......................7
13. Reports; Inspections..........................................8
14. Insurance.....................................................8
15. Return of Equipment...........................................9
16. Lessor's Ownership; Equipment To Be and
Remain Personal Property.....................................10
17. Other Covenants..............................................11
18. Events of Default............................................12
19. Assignment and Transfer by Lessor............................14
20. Recording and Filing; Expenses...............................15
21. Automatic Lease Term Renewal.................................15
22. Quiet Enjoyment..............................................15
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23. Failure or Indulgence Not Waiver;
Additional Rights of Lessor..................................16
24. Sublease.....................................................16
25. Purchase Option..............................................16
26. Notices......................................................16
27. Entire Agreement; Severability; Amendment or
Cancellation of Lease........................................17
28. Waiver of Jury...............................................17
29. Restriction of Limitation Periods
and Damages..................................................17
30. Governing Law; Consent to Jurisdiction
and Service .................................................17
31. Lessor's Right to Perform for Lessee.........................17
32. Agreement for Lease Only.....................................18
33. Binding Effect...............................................18
34. General......................................................18
35. Definitions..................................................18
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MASTER EQUIPMENT LEASE AGREEMENT
MASTER EQUIPMENT LEASE AGREEMENT dated as of July 11, 1996, between
BIOFIELD CORP. (hereinafter called "Lessee"), a Delaware corporation that has
its executive office and principal place of business at 0000 Xxxxxxxxxxx
Xxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000 and FINANCING FOR SCIENCE
INTERNATIONAL, INC. (hereinafter called "Lessor"), a Delaware corporation with
its principal place of business at 00 Xxxxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxxxxx
00000-0000.
In consideration of the mutual covenants hereinafter contained, Lessee
and Lessor agree as follows:
1. Agreement for Lease of Equipment. Lessor shall lease to Lessee and
Lessee shall lease from Lessor, upon the terms and conditions specified in this
Master Lease and the applicable Rental Schedule, the Equipment as described in
the applicable Rental Schedule including Schedule A of such Rental Schedule and
this Master Lease. Each Rental Schedule shall incorporate the terms of this
Master Lease and shall constitute a separate lease (the term "this Lease" shall
refer collectively to the applicable Rental Schedule and this Master Lease).
Only the signed copy of each Rental Schedule and not this Master Lease shall
constitute chattel paper the possession of which can perfect a security
interest. In the event of a conflict between the provisions of this Master
Lease and the provisions of any Rental Schedule, the provisions of the Rental
Schedule shall prevail.
2. Delivery and Acceptance of Equipment. (a) Lessor and Lessee agree
that the vendor of the Equipment to Lessor or, as to any Equipment to be sold
by Lessee to Lessor and leased back, the vendor of the Equipment to Lessee (in
either case, the "Vendor") will be responsible to deliver the Equipment to
Lessee at the location specified in the applicable Rental Schedule. Such
delivery shall be delivery of the Equipment by Lessor to Lessee under this
Lease unless such Equipment is to be sold by Lessee to Lessor and leased back.
Provided that no Event of Default has occurred, no event which with the passage
of time or giving of notice would be an Event of Default has occurred, and is
continuing, and the conditions set forth in the next following paragraph have
been met and the Equipment is not to be sold by Lessee to Lessor and leased
back, Lessor hereby authorizes Lessee, acting as Lessor's agent, to accept for
Lessor, and in Lessor's name, the Equipment from the Vendor upon delivery
pursuant to the purchase contract for the Equipment. Such acceptance shall be
acceptance of the Equipment by Lessee under this Lease. Nevertheless, if within
ten business days after Lessee has received delivery of an item of the
Equipment, Lessee notifies Lessor in accordance with the notice provisions
hereof of a defect therein Lessee shall not be deemed to have accepted such
item of the Equipment under this Lease. Except as provided in the preceding
sentence, Lessee agrees to confirm any acceptance of the Equipment by Lessee by
executing a Certificate of Inspection and Acceptance and providing the same to
Lessor in accordance with the notice provision hereof on or about the Lease
Commencement Date, but no later than the date for payment to the Vendor. Lessee
shall hold Lessor harmless from any claims in respect of such rejected
Equipment as provided in Section 9 of this Master Lease.
(b) Conditions precedent to every progress payment and Lease Term
Commencement shall include that (i) no payment shall be past due to Lessor or
any assign of Lessor from Lessee or any Guarantor (as hereinafter defined),
whether as a lessee, a guarantor or in some other capacity; (ii) Lessee shall
be in material compliance with the provisions of this Lease; (iii) all
documentation then reasonably required by Lessor in connection therewith shall
have been received by Lessor; (iv) Lessee shall not be in default under any
material contract to which Lessee is a party or by which Lessee or the property
of Lessee is bound; and (v) there shall not have been any material adverse
change or threatened material adverse change in the financial or other
condition, business, operations, properties, assets or prospects of Lessee, any
Guarantor or any Manufacturer (as hereinafter defined) since May 2, 1996, or
from the written information that has been supplied to Lessor prior to June 18,
1996 by Lessee, any Guarantor or any Manufacturer.
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3. Disclaimer of Warranties. LESSEE ACKNOWLEDGES THAT IT HAS SELECTED
BOTH THE EQUIPMENT AND EVERY MANUFACTURER AND OTHER VENDOR OF THE EQUIPMENT,
THAT LESSEE HAS NOT RELIED UPON LESSOR FOR SUCH SELECTION AND THAT LESSEE HAS A
COPY OF THE PURCHASE CONTRACT(S) FOR LESSOR'S PURCHASE OF THE EQUIPMENT. LESSOR
HAS NOT MADE AND SHALL NOT BE DEEMED TO HAVE MADE ANY REPRESENTATION OR
WARRANTY, EXPRESS OR IMPLIED, AS TO THE MERCHANTABILITY, FITNESS FOR USE,
FITNESS FOR A PARTICULAR PURPOSE OR TITLE OF THE EQUIPMENT (OR ANY PART THEREOF)
OR AS TO COMPLIANCE WITH SPECIFICATIONS, COMPLIANCE WITH GOVERNMENTAL
REGULATIONS, QUALITY, SELECTION, INSTALLATION, SUITABILITY, PERFORMANCE,
CONDITION, DESIGN, ABSENCE OF DEFECTS, OPERATION, OR NON-INFRINGEMENT OF
PATENT, COPYRIGHT, TRADEMARK OR OTHER INTELLECTUAL PROPERTY RIGHTS OF THE
EQUIPMENT (OR ANY PART THEREOF). LESSEE SHALL LEASE THE EQUIPMENT "AS IS, WHERE
IS". LESSOR HEREBY DISCLAIMS ANY AND ALL SUCH WARRANTIES OR REPRESENTATIONS,
EXPRESS OR IMPLIED. LESSEE AND LESSOR AGREE THAT ALL RISKS INCIDENT TO THE
MATTERS REFERRED TO IN THIS SECTION ARE TO BE BORNE BY LESSEE. Lessor has and
shall have no responsibility for the installation, adjustment or servicing of
the Equipment. The provisions of this Section have been negotiated and are
intended to be a complete exclusion and negation of any representations or
warranties by Lessor, express or implied, with respect to the Equipment that
may arise pursuant to any law now or hereafter in effect, or otherwise. In no
event shall defect in, or unfitness of, any or all of the Equipment, or any
breach of warranty or representation by any or every Manufacturer or other
Vendor relieve Lessee of the obligation to pay rent or to make any other
payments required hereunder or to perform any other obligation hereunder.
Without limiting the generality of the foregoing, Lessor shall not be
responsible or liable for any (i) defect, either latent or patent, in any of
the Equipment or for any direct or consequential damages therefrom, (ii) loss
of use of any of the Equipment or for any loss of profits or any interruption
in Lessee's business occasioned by Lessee's inability to use any or all of the
Equipment for any reason whatsoever, or (iii) in the event that any Vendor
delays or fails to make delivery of any or all of the Equipment or fails to
fulfill or comply with any purchase contract or order. For as long as no Event
of Default shall have occurred hereunder, Lessor hereby transfers and assigns
to Lessee during the Lease Term (as hereinafter defined) all right and interest
of Lessor in any Manufacturer's and other Vendor's warranties with respect to
any and all of the Equipment, and agrees to execute all documents reasonably
necessary to effect such transfer and assignment, except that to the extent any
rights of Lessor with respect to the Equipment may not be assigned or otherwise
be available to Lessee, Lessor shall instead use reasonable efforts to enforce
such rights against such Manufacturers or other Vendors but only upon the
request and at the expense of Lessee.
4. Primary Term. The Primary Term for each item of the Equipment shall
commence on the Lease Commencement Date provided for by the Rental Schedule for
such Equipment, and unless sooner terminated pursuant to the provisions of this
Lease, shall be for the number of calendar months set forth in such Rental
Schedule, plus the number of days remaining in any partial calendar month if
the Lease Commencement Date occurs on other than the first day of a month.
Notwithstanding the foregoing, the provisions of this Master Lease on
indemnification of Lessor by Lessee shall apply between Lessor and Lessee with
respect to any Equipment from the time that any order for the Equipment is
placed by Lessor.
5. Rent. (a) Lessee shall pay to Lessor in cash or by check as rent
for the Equipment during the Lease Term, the amounts provided for in the Rental
Schedule ("Basic Rent") for such Equipment on the dates designated therein
("Payment Dates"), at the location of Lessor set forth therein, or at such
other address or to such other person or entity as Lessor, from time to time,
may designate in writing.
(b) Lessee shall also pay to Lessor, upon notice by Lessor to Lessee
that payment is due, any sums other than for Basic Rent that Lessee at any time
shall be required to pay Lessor pursuant to the provisions of this Lease,
including but not limited to sums payable by reason of payments by Lessor to
any Vendors in advance of the delivery of such Equipment or the commencement of
the Lease Term for such Equipment, together with every additional charge,
interest and cost which may be added for non-payment or late payment of any
such sums or of Basic Rent. All such sums shall be additional rent ("Additional
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Rent") and Lessor shall provide Lessee with written notification as to the
amount of any Additional Rent. If Lessee shall fail to pay any Additional Rent,
Lessor shall have all rights, powers and remedies with respect thereto as are
provided herein or by law in the case of non-payment of Basic Rent.
(c) With respect to any amount of Basic Rent or Additional Rent not
received by Lessor within five business days from when due hereunder, Lessee
shall pay to Lessor interest on such amount from the due date thereof until
payment is received by Lessor at two percent per month or the highest rate of
interest on amounts past due that is not unlawful, whichever is lower (the
"Default Interest Rate"). Additionally, with respect to each such instance of
late payment, Lessee shall pay to Lessor, within three days of notification
that such payment is due, a collection fee of $300, which fee approximates
Lessor's administrative costs, at minimum, to collect such unpaid Basic Rent or
Additional Rent.
(d) LESSEE AGREES THAT TIME IS OF THE ESSENCE TO LESSOR IN LESSEE'S
MAKING PAYMENTS OF BASIC RENT AND ADDITIONAL RENT WHEN SUCH PAYMENTS BECOME
DUE.
(e) This Lease is a net-net-net lease and, notwithstanding any other
provisions of this Lease, it is intended that Basic Rent and Additional Rent
shall be paid without notice, demand, counterclaim, setoff, deduction or
defense and without abatement, suspension, deferment, diminution or reduction.
Lessee shall perform all its obligations under this Lease at its sole cost and
expense. Except to the extent otherwise expressly specified herein, the
obligations and liabilities of Lessee hereunder shall in no way be released,
discharged or otherwise affected for any reason, including, without limitation:
(i) any defect in the condition, quality or fitness for use of the Equipment or
any part thereof; (ii) any damage to, removal, abandonment, salvage, loss,
scrapping or destruction of or any requisition or taking of the Equipment or
any part thereof; (iii) any restriction, prevention or curtailment of or
interference with any use of the Equipment or any part thereof; (iv) any defect
in title or rights to the Equipment or any lien on such title or rights or on
the Equipment; (v) any change, waiver, extension, indulgence or other action or
omission in respect of any obligation or liability of Lessor; (vi) any
bankruptcy, insolvency, reorganization, composition, adjustment, dissolution,
liquidation or other like proceedings relating to Lessee or any action taken
with respect to this Lease by any trustee or receiver of Lessee or by any
court, in any such proceeding; (vii) any claim that Lessee has or might have
against any Person (as hereinafter defined), including without limitation
Lessor; (viii) any failure on the part of Lessor to perform or comply with any
of the terms hereof or of any other agreement; (ix) any invalidity,
unenforceability or disaffirmance of this Lease or any provision hereof against
or by Lessee; or (x) any other occurrence whatsoever, whether similar or
dissimilar to the foregoing, whether or not Lessee or Lessor shall have notice
or knowledge of any of the foregoing. To the extent permitted by law, Lessee
waives all rights now or hereafter conferred by statute or otherwise to quit,
terminate, cancel, rescind or surrender this Lease, or to any diminution or
reduction of Basic Rent or Additional Rent payable by Lessee hereunder, in
respect of any item of the Equipment for which Lessee shall have executed a
Certificate of Acceptance and Delivery or if the Equipment shall be deemed to
have been accepted under this Lease by Lessee as provided by Section 1 of this
Master Lease.
6. Lessee's Representations and Warranties. Lessee represents and
warrants (and if requested by Lessor, promptly will provide supporting
documents) that as of the date that Lessee signs this Master Lease, as of any
date that Lessor makes a payment to a Vendor prior to the date all Equipment
has been accepted for lease hereunder, as of each date that any Equipment is
accepted for lease hereunder and as of each Lease Commencement Date pursuant to
a Rental Schedule hereunder: (i) all items of the Equipment are new and unused
as of the Lease Commencement Date, unless otherwise specified in the applicable
Rental Schedule in which event the specified items of the Equipment shall have
been delivered new to Lessee by their suppliers not more than 90 days prior to
their Lease Term Commencement; (ii) Lessee is duly organized, validly existing
and in good standing under the laws of the jurisdiction of its organization,
and is qualified and in good standing to do business wherever necessary to
carry on its present business and operations, including the jurisdictions where
the Equipment is or will be located; (iii) Lessee has the power to enter into
this Lease and the other instruments and documents executed by Lessee in
connection
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herewith (together with this Lease, the "Transactional Documents") and to pay
and perform its obligations under this Lease and the other Transactional
Documents; (iv) this Lease and the other Transactional Documents have been duly
authorized, executed and delivered by Lessee, and constitute the valid, legal
and binding obligations of Lessee enforceable in accordance with their terms;
(v) no vote or consent of, or notice to, the holders of any class of stock of
Lessee is required, or if required, such vote or consent has been obtained or
given, to authorize the execution, delivery and performance of this Lease and
the other Transactional Documents by Lessee; (vi) neither the execution and
delivery by Lessee of this Lease or the other Transactional Documents, nor the
consummation by Lessee of the transactions contemplated hereby or thereby, nor
compliance by Lessee with the provisions hereof or thereof, conflicts with or
results in a breach of any of the provisions of any Certificate of
Incorporation or By-laws or partnership or trust agreement or certificate of
Lessee, or of any applicable law, judgment, order, writ, injunction, decree,
award, rule or regulation of any court, administrative agency or other
governmental authority, or of any indenture, mortgage, deed of trust, other
agreement or instrument of any nature to which Lessee is a party or by which it
or its property is bound or affected or pursuant to which it is constituted, or
constitutes a de fault under any thereof or will result in the creation of any
lien, charge, security interest or other encumbrance upon any of the
Equipment, other than the interests therein of Lessor or any Assignee (as
hereinafter defined), or upon any other right or property of Lessee or will in
any manner adversely affect Lessor's or any Assignee's right, title and
interest in any of the Equipment; (vii) no consent, approval, withholding of
objection or other authorization of or by any court, administrative agency,
other governmental authority or any other Person is required, except such
consents, approvals or other authorizations which have been duly obtained and
are in full force and effect and copies of which have been furnished Lessor, in
connection with the execution, delivery, performance, or the consummation by
Lessee, of the transactions contemplated by this Lease and the other
Transactional Documents; (viii) there are no actions, suits or proceedings
pending, or, to the knowledge of Lessee, threatened, in any court or before any
administrative agency or other governmental authority against or affecting
Lessee, which, if adversely decided would or could, individually or in the
aggregate, materially and adversely affect the financial or other condition,
business, operations, properties, assets or prospects of Lessee or the ability
of Lessee to perform any of its obligations under this Lease or under the other
Transactional Documents, except for any such actions, suits or proceedings that
Lessee has described in writing to Lessor; (ix) no Event of Default or event or
condition which upon the passage of time, the giving of notice, or both, would
constitute an Event of Default, exists or is continuing; (x) there has been no
material adverse change in Lessee's, any Guarantor's or, to the knowledge of
Lessee, any Manufacturer's financial or other condition, business, operations,
properties, assets or prospects since the date of Lessee's, such Guarantor's or
Manufacturer's most recent financial statements that have been supplied to
Lessor by Lessee, any Guarantor or such Manufacturer; (xi) Lessee possesses any
and all authorizations, certifications and licenses which are or may be
required to use and operate the Equipment; (xii) to the knowledge of Lessee,
the actual Acquisition Cost pursuant to the applicable Rental Schedule of each
item of the Equipment does not exceed the reasonably fair and usual price for
like quantity purchases of such item and reflects all discounts, rebates and
allowances for the Equipment given to Lessee, any Guarantor or any affiliate of
Lessee or any Guarantor by any Vendor or other Person including, without
limitation, discounts for advertising, prompt payment, testing or other
services; (xiii) all information supplied to Lessor by Lessee or any Guarantor
is correct in all material respects and does not omit any statement necessary
to make the information supplied not materially misleading; and (xiv) the
financial statements of Lessee and any Guarantor that have been supplied to
Lessor by Lessee have been prepared in accordance with generally accepted
accounting principles consistently applied and accurately present in all
material respects the financial condition and the results of operations of
Lessee and any such Guarantor at the dates of and for the periods covered by
such statements.
7. Identification Marks. To the extent requested by Lessor, Lessee
shall affix to the Equipment at Lessee's expense signs, labels, or other forms
of notice to disclose Lessor's ownership of, and the interest of any Assignee
in, the Equipment. Lessee shall keep and maintain such signs, labels or other
forms of notice affixed to the Equipment throughout the Lease Term. Lessor may
furnish such signs, labels or other forms of notice to Lessee. Except as
otherwise directed by Lessor, Lessee shall not allow
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the name of any person other than Lessor to be placed on any part of the
Equipment as a designation that might reasonably be interpreted as a claim of
ownership.
8. Fees and Taxes. Lessee agrees to pay promptly when due, and to
indemnify and hold Lessor harmless from, all license, title, registration and
recording fees whatsoever, all taxes including, without limitation, sales, use,
franchise, personal property, excise, import, export and stamp taxes and
customs duties, and all charges together with any penalties, fines or interest
thereon which are assessed, levied or imposed by any governmental or taxing
authority against Lessor with respect to any or all of the Equipment or the
purchase, acquisition, ownership, construction, installation, shipment,
delivery, lease, pos session, use, maintenance, condition, operation, control,
return or other disposition thereof or the rents, receipts or earnings arising
therefrom which accrue or are payable with respect to the Equipment or this
Lease or which are assessed, are based on a valuation date, or are due during
or with respect to the Lease Term or any subsequent period, until the Equipment
has been returned to Lessor pursuant to the provisions of this Lease or until
the Equipment has been purchased by Lessee pursuant to any purchase option
provisions of this Lease, excluding, however, any taxes solely measured by
Lessor's net income from the general operation of Lessor's business. In the
event any fees, taxes or charges payable by Lessee pursuant to the next
preceding sentence are paid by Lessor, or if Lessor is required to collect or
pay any thereof, Lessee shall reimburse Lessor therefor (plus any penalties,
fines or interest thereon) promptly upon demand. Unless and until Lessor
notifies Lessee in writing to the contrary, Lessee shall file and pay any
personal property taxes levied or assessed on the Equipment directly to the
levying authority. Upon Lessor's written reasonable request, Lessee shall
submit to Lessor satisfactory evidence of payment by Lessee of any or all
amounts for which Lessee is required to make payment under this Section or to
indemnify Lessor hereunder that such payments have been paid by Lessee, and of
the filing of any and all reports, returns and other documentation required in
connection with any such payment. In the event Lessor elects to pay the
personal property taxes directly to a levying authority, Lessor shall submit to
Lessee a copy of its personal property tax return and its receipt for the full
amount of such personal property taxes so paid by Lessor. All of the
obligations of Lessee under this Section shall continue in full force and
effect notwithstanding any expiration, termination, rescission or cancellation
of this Lease. Lessee acknowledges that Lessor may not be exempt from the
payment of any of the amounts referred to herein, even though Lessee might have
been exempt therefrom if it were the owner or purchaser of the Equipment, and
Lessee agrees that this Section shall apply, and the amounts due from it
hereunder shall be due, whether or not Lessee might itself have otherwise been
exempt from any such payments. Subject to the foregoing, Lessee shall have the
right to contest in good faith any such taxes levied or imposed by any
governmental or taxing authority, provided that Lessee shall have given Lessor
not less than ten days prior notice of its intention to contest and full
particulars of the proposed contest, in the opinion of Lessor the proposed
contest will not materially and adversely affect the interests of Lessor or any
Assignee, and Lessee either shall have paid the taxes or provided for a bond or
other security so that none of the Equipment will be subject to seizure,
confiscation or forfeiture. For purposes of this Section, the term "Lessor"
shall include each member of Lessor's affiliated group, if any.
9. General Indemnity. (a) Lessee shall indemnify Lessor and any
Assignee (as hereinafter de fined), and their respective agents and servants,
against, and agrees to defend, protect, save and keep them harmless from, any
and all liabilities, obligations, losses, damages, penalties, claims, actions,
suits, costs, expenses and disbursements, including reasonable attorneys' fees
and expenses and costs for customs, completion, performance and appeal bonds,
of whatsoever kind and nature (including, without limitation, for negligence,
tort liability, damages by reason of strict or absolute liability, punitive
damages, and in direct and consequential damages, but excluding any such
amounts imposed or incurred as a result of Lessor's gross negligence, bad faith
or willful misconduct), imposed on or incurred by or assessed against Lessor
and/or any Assignee, in any way relating to or arising out of (i) the failure
of Lessee to provide or obtain any certificates, documents, consents,
authorizations, clearances, licenses, permits or instruments required hereunder
or under any of the other Transactional Documents, or (ii) the ordering,
construction, installation, delivery, testing, ownership, lease, possession,
use, maintenance, operation, control, movement, import, export, shipment,
condition, or return of the Equipment (including but not limited to latent and
other defects, whether or not discoverable by Lessor or Lessee, and any claim
for patent, trade-
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xxxx, copyright, software or other intellectual property infringement) until
such time as the Equipment shall have been returned to Lessor pursuant to the
provisions of this Lease or until the Equipment shall have been purchased by
Lessee pursuant to any purchase option provisions of this Lease.
(b) The obligations of Lessee under this Section shall survive the
payment of all known obligations under and any expiration, termination,
rescission or cancellation of this Lease, and are expressly made for the
benefit of and shall be enforceable by Lessor, its successors and any Assignee.
10. Use of Equipment; Location; Liens. (a) During the Lease Term,
Lessee warrants and agrees that the Equipment shall be used and operated and
otherwise be in compliance with any established operating procedures therefor
of any Manufacturer and all statutes, regulations and orders of any govern
mental body having power to regulate the Equipment or its use. Lessee shall
bear and pay all costs of such compliance. Lessee shall not permit the
Equipment to be used or maintained in any manner or condition that would
violate, or could result in the termination of, the insurance policies carried
by Lessee pursuant to the provisions of this Lease on insurance, or in any
manner or condition or for any purpose for which, in the opinion of any
Manufacturer, the Equipment is not designed or suited.
(b) Lessee agrees that without Lessor's prior written consent which
shall not be unreasonably refused or delayed, it will not remove any of the
Equipment from the location specified in the Rental Schedule for such Equipment
other than to have repairs made or maintenance conducted or permit any of the
Equipment to be used by anyone other than Lessee, Lessee's employees or a
responsible independent contractor engaged by Lessee.
(c) During the Lease Term and until the Equipment has been returned to
Lessor pursuant to the provisions of this Lease or until the Equipment is
purchased by Lessee pursuant to any purchase option provisions of this Lease,
Lessee will not directly or indirectly create, incur, assume or suffer to exist
any mortgage, security interest, lien or encumbrance on the Equipment or
Lessor's or any Assignee's title thereto or interest therein, except in the
name of Lessor and its successor(s) and any Assignee. Lessee, at its own
expense, will promptly take such action as may be necessary to keep the
Equipment free and clear of, and to duly discharge, any such mortgage, security
interest, lien or encumbrance not excepted above.
(d) Lessee agrees to procure and maintain in effect all licenses,
certificates, permits and other approvals and consents required by federal,
state and local laws and regulations in connection with Lessee's possession,
use, operation and maintenance of the Equipment.
(e) Lessee shall cooperate fully with Lessor or any Assignee to
perfect and record their respective interests in connection with the
Transactional Documents including, without limitation, the filing of financing
statements and will pay the reasonable costs related to the filing of financing
statements to perfect the interest of Lessor. Lessee authorizes Lessor to file
financing statements that are signed only by Lessor or that are signed for
Lessee by Lessor in any jurisdiction when permitted by law or local authority.
Lessee hereby grants to Lessor a limited power-of-attorney to act as Lessee's
attorney-in-fact to sign Lessee's name on financing statements as "Debtor".
11. Maintenance and Repairs; Additions to Equipment. (a) Lessee shall,
for the entire Lease Term, at its sole expense, maintain all of the Equipment
in good, safe and efficient operating repair, appearance and condition, normal
wear and tear excepted will keep all components of the Equipment properly
calibrated and aligned, will make all required adjustments, replacements and
repairs (collectively, "maintenance and repairs"). Such maintenance and repairs
shall include, but not be limited to, all recommended or advised by a
Manufacturer, all required or advised by cognizant governmental agencies or
regulatory bodies and all commonly performed by prudent business and/or
professional practice. All maintenance and repairs to any item of the
Equipment shall be made by the Manufacturer or those of substantially equal
skill or knowledge in maintaining and repairing the Equipment.
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(b) Lessee shall not materially modify the Equipment without the prior
written consent of Lessor. Any replacements, substitutions, additions,
attachments, accessions, parts, fittings, accessories, modifications,
enhancements, maintenance and repairs and other upgrades to the Equipment
whenever made shall be considered accessions to the Equipment and shall
automatically become the property of Lessor.
(c) All instruction manuals, published statements of capabilities and
technical specifications, service, maintenance and repair records,
installation, qualification, certification and calibration reports, usage logs,
and printed material relating to the Equipment shall be deemed part of the
Equipment. Computer programs, programming codes, operating systems, data
processing instructions, series of instructions or statements which are
machine readable, and any like symbols or signals usable by an electronic data
processing system that has been or shall be installed or entered in the
Equipment shall become a part of the Equipment except for any Software that is
proprietary Software of Lessee and is not a modification, change, enhancement
or improvement to any Software which is identified or listed in the description
of specific items of the Equipment in or attached to a Rental Schedule
(collectively "Software"). Whenever Lessee acquires Software licenses from
other parties, with respect to the Software such licenses shall automatically
and without further action by Lessee be assigned to Lessor and become through
assignment a part of the Equipment transferable to any future user of the
Equipment for use with the Equipment.
12. Loss, Damage or Destruction of Equipment. (a) Lessee shall bear
all risks of damage to, taking of, or theft, loss or destruction of, any or all
of the Equipment commencing as of the date of this Master Lease and continuing
throughout the Lease Term and until such Equipment has been returned to Lessor
or purchased by Lessee pursuant to any purchase option provisions of this
Lease. Except as otherwise herein expressly provided, no damage to, taking of
or theft, loss or destruction of any Equipment shall impair any obligation of
Lessee to Lessor under this Lease, including, without limitation, the
obligation to pay Basic Rent.
(b) In the event that any item of Equipment shall become damaged from
any cause whatsoever, Lessee agrees to promptly notify Lessor in writing of
such fact, fully informing Lessor of the details thereof. If any item of
Equipment is damaged (unless the same, in the opinion of Lessor is irreparably
damaged, in which case the provisions of this Lease with respect to a Casualty
Occurrence shall apply), Lessee shall, at its sole cost and expense, place the
same in good repair, condition and working order or replace the same with "like
property" having the same value and operating capabilities and useful life at
least equal to the damaged Equipment prior to the date of such damage, which
property shall thereupon become subject to this Lease with title thereto in
Lessor. In the event that an item of Equipment has been damaged, but not
irreparably, if no Event of Default has occurred and is continuing hereunder,
upon receipt by Lessor of evidence, satisfactory to Lessor, that such repair,
restoration or replacement has been completed, and an invoice therefor, Lessor
shall release to Lessee or its supplier the proceeds of any insurance received
by Lessor as a result of such damage for the purpose of reimbursing Lessee for
the costs of repairing, restoring or replacing such item.
(c) In the event that any item of Equipment shall become lost, stolen,
destroyed or irreparably damaged from any cause whatsoever, or if any item of
Equipment or Lessor's title thereto shall be requisitioned or seized by any
governmental authority (each such occurrence being herein called a "Casualty
Occurrence") during the Lease Term and until it has been returned to Lessor
pursuant to the provisions of this Lease or until the Equipment is purchased by
Lessee pursuant to any purchase option provisions of this Lease, Lessee shall
promptly notify Lessor in writing of such fact, fully informing Lessor of all
details of the Casualty Occurrence in question, and shall pay Lessor in cash
the "Stipulated Loss Value" as set forth in the Table of Stipulated Loss Values
attached to the Rental Schedule pursuant to which such item of Equipment is
leased hereunder, calculated as of the date of the Casualty Occurrence. This
payment shall be made within 30 days following the Casualty Occurrence,
together with the Basic Rent accrued and unpaid with respect to such Equipment
as of the date of the Casualty Occurrence, plus all Additional Rent or amounts
owing with respect to such Equipment on such date of payment.
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(d) Upon the payment of the Stipulated Loss Value of the Equipment in
question in accordance with the terms of this Section, and the payment of all
Basic Rent, Additional Rent and any other sums then due hereunder, this Lease
shall terminate with respect to the Equipment or part thereof suffering the
Casualty Occurrence and all Lessor's rights and title to such Equipment shall
pass to Lessee, "as is" and "where is", without any representation or warranty
by, or recourse to, Lessor, as provided by the provisions of this Master Lease
on disclaimer of warranties and as evidenced by a duly executed xxxx of sale
naming Lessor as the seller and Lessee as the buyer.
(e) Provided that no Event of Default has occurred and no event that
with the passage of time or giving of notice, or both, would be an Event of
Default has occurred and is continuing, any insurance proceeds received as the
result of a Casualty Occurrence with respect to any or all items of the
Equipment shall be applied first in reduction of any other then unpaid
obligation of Lessee to Lessor hereunder and second in reduction of Lessee's
obligation to pay the Stipulated Loss Value for such item if not already paid
by Lessee to Lessor, or, if already paid by Lessee, to the reimbursement of
Lessee therefor, and the balance of the insurance proceeds, if any, shall be
paid to Lessee.
13. Reports; Inspections. Lessee will cause to be furnished to Lessor,
if requested, from time-to-time on a reasonable basis a statement showing the
condition and such other information regarding the Equipment as Lessor may
reasonably request. Lessor and any Assignee shall have the right, upon
reasonable notice to Lessee, to inspect the Equipment including Lessee's
records with respect to the Equipment, to copy such records, and to inspect and
copy Lessee's records with respect to the financial statements Lessee is
required to furnish Lessor or has warranted to Lessor pursuant to this Lease.
Any inspection by Lessor or any Assignee shall not be deemed to be approval or
acknowledgment by Lessor or such Assignee of the safety, freedom from defects,
performance or compliance with specifications or governmental requirements of
the Equipment or of the conformity of the Equipment or such financial
statements to the requirements or warranties of this Lease, and the disclaimers
set forth in the provisions of this Master Lease on disclaimer of warranties
shall apply to any such inspection. Lessee shall pay or reimburse Lessor for
Lessor's costs, travel expenses and salaries and the charges and such expenses
of Lessor's advisers for the inspection following an inspection which
encountered a breach of the requirements of this Lease or the warranties of
Lessee pursuant to this Lease.
14. Insurance. During the Lease Term and until all Equipment has been
returned to Lessor pursuant to the provisions of this Lease or until the
Equipment is purchased by Lessee pursuant to any purchase option provisions of
this Lease, Lessee shall procure and maintain at its expense with reputable
insurers acceptable to Lessor (i) insurance on all of the Equipment in an
amount not less than the greater of the Equipment's Stipulated Loss Value or
Fair Market Value replacement cost insuring against all risks of loss or damage
to the Equipment and against such other risks as Lessee would, in the prudent
management of its properties, maintain with respect to similar equipment owned
by it, and (ii) comprehensive public liability and property damage insurance,
in such amounts as shall be reasonably satisfactory to Lessor but for not less
than $1,000,000 insuring Lessor and any Assignees, as their interests may
appear, against liability for death, bodily injury, professional malpractice,
and property damage arising out of or resulting from the design, construction,
manufacture, ownership, use, operation, lease or maintenance of, or otherwise
in connection with, the Equipment. On the policies referred to in clause (i),
such insurance shall name Lessor (and any Assignees) as the sole loss payee so
that (and Lessor and Lessee hereby agree that) the insurance proceeds payable
under such policies will be payable and paid solely to Lessor (and to any
Assignees). On the policies referred to in clause (ii), such insurance will
name Lessor (and any Assignees) as an additional insured as its interests may
appear. All such policies shall provide that they may not be invalidated
against Lessor (or any Assignees) because of any violation of a condition or a
breach of warranty of the policies or application therefor by Lessee, that they
may not be altered or canceled except after 30 days' prior written notice to
Lessor, and that Lessor and any Assignee have the right but not the obligation
to pay the premiums with respect to coverage required by this Lease in order to
continue such insurance in effect or to obtain like coverage. Under the
policies of insurance required to be maintained by Lessee pursuant to this
Master Lease, Lessee agrees to waive any right of subrogation and to cause the
insurance carrier to waive any right of subrogation in each instance
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as such right may exist against Lessor or any Assignee and for any and all loss
or damage to the Equipment. Lessor is hereby appointed Lessee's
attorney-in-fact to endorse any check or draft which may be payable to Lessee
in order to collect the proceeds of such insurance. Lessee shall deliver to
Lessor, prior to the beginning of the Lease Term with respect to any of the
Equipment and at such other time or times as Lessor may request, a certificate
or other evidence satisfactory to Lessor of the maintenance of such insurance.
Lessor shall be under no duty to examine such policies, certificates or other
evidence of insurance or to advise Lessee in the event that its insurance is
not in compliance with this Lease. In the event of failure on the part of
Lessee to provide such insurance, Lessor may, at its option, but without
obligation, provide such insurance and add the amount of the premiums to the
rents due hereunder, and Lessee shall, upon Lessor's demand, pay the same as
Additional Rent.
15. Return of Equipment. (a) At the end of the Lease Term for any
Equipment, Lessee at its sole expense shall forthwith return possession of such
Equipment without omissions to Lessor by:
(i) properly preparing, crating and/or assembling such Equipment (in
accordance with the Manufacturer's instructions if such instructions exist)
for shipment by common carrier with all containers and pieces labeled with
model, part and unit numbers, if applicable; and
(ii) shipping such Equipment by common carrier, with insurance and
freight prepaid, to a place designated by Lessor within a 1,000 mile radius of
the specified location under this Lease for such Equipment. Lessor shall pay
additional shipping charges incurred because of distances in excess of such
1,000 miles.
The insurance required by clause (ii) above shall provide that in the
event of loss such insurance shall pay Lessor in cash directly the greater of
(A) the full replacement value of such Equipment and (B) the "Stipulated Loss
Value" as set forth in the Exhibit to the Rental Schedule calculated as of the
Payment Date next preceding the date of loss. Lessee acknowledges that "full
replacement value" may exceed Fair Market Value.
(b) If the Equipment shall be returned to Lessor it shall be complete.
The condition of the Equipment including Software upon receipt by Lessor shall
be not less than (i) meeting all specifications for such equipment as published
by the respective Equipment vendor(s), Manufacturer(s) or supplier(s)
(collectively referred to, together with their successors and assigns, if any,
as "Vendors"), (ii) in fully operational condition, normal wear and tear
excepted (iii) capable of being installed and operated in the normal course by
another user, (iv) free of defects, visible or concealed, including, but not
limited to, damage or malfunction of any kind, fractures, rust, corrosion,
electrical shorts, fluid restrictions or block ages, disconnections, breakage
or the like, normal wear and tear excepted (v) safe for routine and usual
operation, (vi) in compliance with any and all pertinent governmental or
regulatory rules, laws or guide lines for its operation or use, (vii) free of
Lessee's markings or labelings, and (viii) free of any advertising or insignia
not requested by Lessor that was placed on the Equipment by Lessee.
(c) Lessor reserves the right to inspect the Equipment within 30 days
of its return to verify compliance with the provisions of this Master Lease on
Equipment maintenance and repairs and additions and on return of Equipment.
Should there be full compliance as confirmed by Lessor or after the elapse of
such 30 days without notification from Lessor, whichever occurs first, all
obligations of Lessee under this paragraph (c) shall be deemed to be satisfied.
Should there be less than full compliance and upon written notification no
later than such 30 days of the return of the Equipment, Lessor at its option
may (i) perform or cause to be performed through service organizations of its
own choosing such maintenance and repairs, as it deems necessary to effect such
compliance, (ii) require Lessee to perform or cause to be performed such
maintenance and repairs, as Lessor deems necessary to effect such compliance
and/or (iii) reasonably estimate the costs to effect such compliance. Lessee
shall pay to Lessor the costs for performance of (i) or (ii) above, or the
estimated costs under (iii) above. If maintenance and repairs are necessary to
place any of the Equipment under any Rental Schedule in the condition required
by this Lease, Lessee shall continue to pay to Lessor monthly Additional Rent
at the last prevailing rate during the Lease Term for Basic Rent
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on the Equipment under such Rental Schedule for the period of time reasonably
necessary to accomplish such maintenance and repairs. For any such period that
applies, Lessee shall continue to provide the insurance required during the
Lease Term. However, Lessor's acceptance of such rent and provision of in
surance during such period shall not constitute a renewal of the Lease Term, a
waiver of Lessor's right to prompt return of such Equipment in the condition
required by this Section, or a waiver of Lessor's right to possession of such
Equipment.
(d) Should the inspection reveal any item(s) of the Equipment to be
missing, Lessee shall be responsible for paying to Lessor promptly the greater
of the Stipulated Loss Value or the Fair Market Value of such item(s) of the
Equipment computed as of the last Payment Date prior to the end of the Lease
Term, plus the amount of any impairment of the Fair Market Value of the
remaining item(s) of the Equipment due to the absence of such missing item(s)
of the Equipment.
(e) In the event that Lessee fails to return any of the Equipment when
required, at the election of Lessor effected by notice to Lessee, the Lease
Term for such Equipment shall be extended on a month-to-month basis on the same
terms as previously in effect, and Lessee shall pay to Lessor monthly in
advance Basic Rent for such Equipment at the last prevailing rate during the
unextended Lease Term, until such Equipment has been returned to Lessor
pursuant to the provisions of this Lease. Notwithstanding any month-to-month
continuance of this Lease, Lessor may resort to any remedies available to it
under this Lease, at law or in equity, to recover such Equipment at any time
following the end of such extended Lease Term.
(g) Not less than 180 days prior to expiration of the Lease Term, if
Lessee has not given notice of the exercise of any purchase option and Lessor
has not given notice of the exercise of any option to require Lessee to
purchase such Equipment, Lessee shall give Lessor notice that Lessee shall be
returning the Equipment forthwith upon the expiration of the Lease Term and
either (i) that the Equipment is in the condition required by this Lease upon
the return of the Equipment or (ii) specifying the respects in which the
condition of the Equipment is not in compliance with such requirements and the
measures that Lessee shall take to bring the Equipment into compliance.
16. Lessor's Ownership; Equipment To Be and Remain Personal Property.
(a) Lessee acknowledges and agrees that it does not have, and by execution of
this Lease and/or payments and performance hereunder it shall not have or
obtain, any title to the Equipment, nor any property right or interest, legal
or equitable, therein, except its rights as Lessee hereunder and subject to the
terms hereof. Lessee shall not have or claim a security interest and shall not
seek or obtain replevin, detinue, specific performance, sequestration, claim
and delivery, or like remedies in or for this Lease, any rents under this
Lease, any or all of the Equipment, any items of personal property identified
to become items of the Equipment, or any proceeds of any or all of the
foregoing.
(b) All of the Equipment shall be and remain personal property
notwithstanding the manner in which the Equipment may be attached or affixed to
realty. Upon the expiration, cancellation or termination of the Lease Term of
any or all of the Equipment, Lessee shall have the obligation, and Lessor shall
have the right, to remove, or cause the removal of, such Equipment from the
premises where the same is then located, for return to Lessor pursuant to the
provisions of this Master Lease on return of Equipment and, if applicable, on
Events of Default, whether or not any of the Equipment is affixed or attached
to realty or to any building. In the exercise of its rights, Lessor shall not
be liable for any damage to the realty or any such building or other real or
personal property occasioned by any removal of the Equipment by Lessee or
Lessor or the agents of Lessee or Lessor except to the extent such charge
results from gross negligence or willful misconduct of Lessor or its agents.
Lessee further covenants and agrees that Lessee will, at the request of Lessor,
obtain and deliver to Lessor concurrently with the execution and delivery of
each Rental Schedule, a waiver, in recordable form, from the owner and any
landlord, tenant or holder of any lien or encumbrance on the realty or
building(s) on or in which any of the Equipment de scribed in such Rental
Schedule shall be located, under which such owner, landlord, tenant and holder
(i) agree and consent that such Equipment is and shall be personal property,
owned by and removable by
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Lessor upon the expiration, cancellation or termination of the Lease Term
thereof, and (ii) waive any rights of distraint or similar rights with respect
to such Equipment.
(c) If Lessee is unable to return, or is prevented from returning, any
of the Equipment to Lessor upon the expiration, cancellation or termination of
the Lease Term as required under the provisions of this Master Lease on return
of Equipment, for any reason whatsoever, including, but not limited to, the
assertion by any third party of any claim against such Equipment, or of any
right with respect thereto, whether or not resulting from the manner in which
such Equipment is affixed or attached to, or installed in, the realty or any
building(s) thereon or any other personal or real property, or from the failure
of any owner, landlord or tenant of said realty (or the building(s) thereon) or
the holder of any lien or encumbrance to execute the waiver in writing of such
fact, for all purposes of this Lease such Equipment shall be deemed to have
been the subject of a Casualty Occurrence. Thereupon, Lessee shall pay to
Lessor the amounts provided for by the provisions of this Master Lease on loss,
damage or destruction of Equipment, with respect to such Equipment, at the
time, in the manner, and with the consequences provided by such provisions.
(d) Notwithstanding the foregoing provisions of this Section, without
Lessor's prior written con sent, Lessee shall not permit any of the Equipment
to be attached or affixed to, imbedded in or incorporated into any building,
structure, real estate or other personal or real property.
17. Other Covenants. (a) Lessee agrees to furnish, upon Lessor's
request, such financial, business and operational information concerning Lessee
and any or all Guarantors, including copies of its and their tax returns, as
Lessor or its assigns may reasonably request during the Lease Term.
Additionally, Lessee shall furnish to Lessor and its assigns without notice or
demand therefor two complete copies of its and of every Guarantor's (i)
quarterly interim financial statements within 60 days of the close of each of
the first three fiscal quarters of every year, certified by the chief financial
officer of, respectively, Lessee or such Guarantor and (ii) annual financial
statements within 120 days of the close of each fiscal year reported on by
independent accountants without material adverse qualification or comment. All
such financial statements shall be prepared in accordance with generally
accepted accounting principles consistently applied, and shall accurately and
completely present Lessee's and every Guarantor's financial condition and
results of operations at the dates of and for the periods covered by such
statements.
(b) Lessee shall promptly furnish to Lessor copies of (i) filings
that Lessee or any Guarantor makes with the SEC or other government agencies
under the securities laws including but not limited to definitive proxy
statements, registration statements, prospectuses and filings on Form 10-K,
10-Q, 8-K or similar forms, and any amendments to such filings, and (ii) press
releases of Lessee or any Guarantor.
(c) Lessee shall give Lessor notice of all meetings of the
stockholders of such corporation and copies of all materials that are furnished
to the stockholders for the meetings at the same time that the notice or
materials are sent to the stockholders. Lessor shall have the right to have its
representative attend any and all such meetings.
(d) There shall be no actual or threatened conflict with, or violation
of, any statute, or governmental regulation, relating to Lessee, its present or
future operations, that would reasonably be deemed to effect the Equipment, or
the Equipment.
(e) All information supplied to Lessor or its assigns by Lessee or any
Guarantor shall be correct and shall not omit any material statement necessary
to make the information supplied not be materially misleading. There shall be
no material breach of the representations and warranties made by Lessee in
connection with this Lease or by any Guarantor in connection with a Guaranty
(as hereinafter defined).
(f) Lessee shall give Lessor notice of any change in the address of
the executive office or principal place of business of Lessee not less than 15
days prior to the change.
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(g) No change shall occur in the control, of Lessee or any Guarantor,
and no Guarantor shall assert in writing that the obligations of the Guarantor
as a Guarantor or in its Guaranty are not in full force and effect.
(h) Lessee shall not make any payment or distribution of money,
checks, securities or property to any Person in contravention of the provisions
of any Guaranty or subordination that such Person has made in favor of Lessor
or its assigns of which Lessee shall have notice or knowledge.
18. Events of Default. If one or more of the following events
(hereinafter called "Events of De fault" or an "Event of Default") shall occur:
(i) default shall be made in the payment of any Basic Rent or
Additional Rent due under this Master Lease or under any Rental Schedule
hereto, and any such default shall continue for more than 10 days after the due
date thereof;
(ii) any representation or warranty by Lessee or any Guarantor made in
this Master Lease or in any Guaranty or other Transactional Document or
certificate furnished to Lessor in connection with this Lease or pursuant
hereto shall at any time prove to be incorrect in any material respect;
(iii) Lessee shall make or permit any unauthorized assignment or
transfer of this Master Lease or any Rental Schedule to this Master Lease or of
any of Lessee's rights and obligations hereunder or thereunder, or Lessee shall
make or permit any unauthorized sublease or transfer of any Equipment or the
possession of any Equipment;
(iv) Lessee shall default in the observance and/or performance of any
other material covenant, condition or agreement on the part of Lessee to be
observed and/or performed under this Master Lease, under any Rental Schedule
hereto, or under any other Transactional Document, which default is not
governed by paragraphs (i), (ii) or (iii) above, and such default shall
continue for 30 days after written notice from Lessor to Lessee specifying the
default and demanding the same to be remedied;
(v) Lessee or any Guarantor shall make an assignment for the benefit
of creditors, or cease being in substantially the same line or lines of
business in which it is presently engaged, or generally fail to pay its debts
as they become due, or become insolvent or commence a voluntary case under the
federal Bankruptcy Code as now or hereafter constituted or any other applicable
federal or state bankruptcy, in solvency or similar law, or admit in writing
its inability to pay its debts as they mature, or consent to the appointment of
a trustee or receiver, or a trustee or a receiver shall be appointed for Lessee
or any Guarantor or for a substantial part of Lessee's or any Guarantor's
property without such party's consent and such appointment shall be not
dismissed for a period of 60 days; there shall have been entered a decree or
order for relief by a court having jurisdiction in respect of Lessee or any
Guarantor, or approving as properly filed a petition seeking a reorganization,
arrangement, adjustment or composition of or in respect of Lessee or any
Guarantor in an involuntary proceeding or case under any applicable federal or
state bankruptcy, insolvency or other similar law, or appointing a receiver,
liquidator, assignee, custodian, trustee or similar official of Lessee or any
Guarantor or of any substantial part of its property, or ordering the
winding-up or liquidation of its affairs, and the continuance of any such
decree or order unstayed and in effect for a period of 60 days, or there shall
have been filed a petition by or against Lessee or any Guarantor under any
bankruptcy law or other insolvency law and, if petition is filed against Lessee
or such Guarantor, the petition is not withdrawn or dismissed within 60 days
after the date of filing; or Lessee or any Guarantor shall cease doing business
as a going concern or shall liquidate or be dissolved;
(vi) Lessee or any Guarantor shall, without the prior written consent
of Lessor, enter into a merger, consolidation or division, effect a share
exchange of its outstanding stock for the stock of another corporation, make a
tender offer for equity securities of a publicly held entity, or sell or
otherwise dispose of all or a major part of its assets or of assets that
produce all or a major part of its revenues or profits; provided, however, that
Lessee or any Guarantor, without violating the provisions of this clause, may
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consolidate with or merge with a corporation or other entity organized under
the laws of one of the states of the United States (the surviving entity, a
"successor"), or sell (except by means of a sale and leaseback arrangement) all
or substantially all of its business and assets to such a successor, on the
condition that any successor expressly assume in writing all of the obligations
of Lessee pursuant to this Lease or of such Guarantor pursuant to its Guaranty,
and that the net tangible assets and the net worth (determined in accordance
with generally accepted accounting principles) of the successor after the
consolidation, merger or sale shall be at least equal to the net tangible
assets and the net worth of Lessee or such Guarantor, as the case may be,
immediately prior to the consolidation, merger or sale;
(vii) there shall occur under any other lease, contract or agreement
between Lessee and Lessor, an Event of Default, as defined in such lease,
contract or agreement;
(viii) any of the Equipment shall be attached, levied upon,
encumbered, pledged, seized or taken under any judicial process (except for any
attachment, levy, encumbrance or pledge caused to be placed on the Equipment by
Lessor) and such proceedings shall not be vacated, or fully stayed, within 30
days thereof;
(ix) at any time there shall occur under (A) any lease between Lessee
and a party other than Lessor as lessor or (B) under any lease wholly or
partially guaranteed by Lessee, the exercise by the lessor of its possessory
remedies or commencement of legal proceedings by the lessor for default under
the lease; provided that the aggregate future payments remaining to be made or
guaranteed by Lessee exceed $10,000, and that under a lease described in (B)
above within ten days of notice to Lessee of such exercise of remedies and
demand for payment by Lessee any such amount guaranteed by Lessee remains
unpaid; or
(x) any obligation of Lessee or any Guarantor for the payment of
borrowed money or the acquisition of assets by purchase, conditional sale or
other arrangement is not paid or refinanced at maturity, whether by
acceleration or otherwise, or is declared due and payable prior to the stated
maturity thereof by reason of default or other violation of the terms of any
promissory note or agreement evidencing or governing such obligation, and
Lessor has given Lessee an opportunity to either cure the purported Event of
Default or supply information satisfactory to Lessor that it does not, in fact,
exist;
this Lease shall be declared in default, immediately and without notice upon
the occurrence of an Event of Default specified in clause (v) above, and in the
case of any other Event of Default, upon Lessor at any time at its option
subsequent to such Event of Default giving notice to Lessee that this Lease is
declared in default. At any time after this Lease has been declared in default,
Lessor may exercise one or more of the following remedies, to the extent not
then prohibited by law, as Lessor in its sole discretion may elect:
(I) to proceed by appropriate court action or actions at law or in
equity or in bankruptcy to en force performance by Lessee of the covenants and
terms of this Lease and/or to recover damages for the breach thereof;
(II) to terminate or cancel this Lease upon written notice to Lessee
whereupon all rights of Lessee to use the Equipment shall immediately
terminate, but Lessee shall not be relieved of any obligations under this
Lease;
(III) whether or not this Lease be so terminated or canceled, and
without notice to Lessee, to repossess and/or to render inoperable the
Equipment wherever found, with or without legal process, and for this purpose
Lessor and/or its agents may enter upon any premises of or under the control or
jurisdiction of Lessee or any agent of Lessee without liability for suit,
action or other proceeding by Lessee and remove the Equipment therefrom; Lessee
hereby expressly waives any claims for damages occasioned by such repossession;
LESSEE HEREBY EXPRESSLY WAIVES ANY AND ALL RIGHTS, INCLUDING RIGHTS TO NOTICE
OR A JUDICIAL HEARING, WITH RESPECT TO REPOSSESSION OF THE EQUIPMENT AFTER AN
EVENT OF DEFAULT;
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(IV) to hold or to use any Equipment returned to Lessor or repossessed
by Lessor for any purpose whatsoever, to sell any Equipment at a private or
public, cash or credit sale, to re-lease any Equipment, in all the foregoing
events free and clear of any rights of Lessee and without any duty to account
to Lessee with respect to such action or inaction;
(V) whether or not Lessor shall have exercised, or shall hereafter at
any time exercise, any of its other rights with respect to an item of the
Equipment, upon written notice to Lessee, to demand that Lessee pay to Lessor,
and Lessee shall pay to Lessor on the date specified in such notice, as
liquidated damages for loss of a bargain and not as a penalty (in lieu of the
Basic Rent for such Equipment that prior to the Event of Default was to have
been paid on Payment Dates subsequent to the date specified in such notice),
the sum equal to the excess, if any, of 125% of the Stipulated Loss Value for
such item of Equipment computed as of the latest Payment Date when all Basic
Rent and Additional Rent then due and payable has been fully paid over
whichever of the following three amounts Lessor, in its sole discretion, shall
designate in such notice:
(A) the present value of the fair market rental value (determined
as hereafter provided in this Section) of such item of the
Equipment for the remainder of the Lease Term as of the date
specified in such notice, the present value to be computed on
the basis of a seven percent per annum rate of discount from
the respective dates upon which such rent would be paid,
(B) the fair market sales value (determined as hereafter provided
in this Section) of such item of Equipment as of the date
specified in such notice, or
(C) if Lessor shall have sold or re-leased any item of Equipment
pursuant to clause (IV) above, the net proceeds of such sale
or re-lease,
plus interest at the Default Interest Rate (a) on such sum
from the such Payment Date until paid and (b) on whichever of
such three amounts is so designated by Lessor from such
Payment Date until whichever one of the following shall be
applicable to the designated amount: the time when the fair
market rental or sales value shall have been so determined or
the time when the Equipment shall have been sold or released;
and
(VI) to forthwith recover from Lessee, and Lessee shall be
fully liable for, all Basic Rent that shall accrue until the
date that the Equipment is returned to or repossessed by
Lessor and any Additional Rent including collection fees,
whenever accrued, and interest at the Default Interest Rate.
In addition to the foregoing, Lessor may also recover from Lessee all
costs and expenses arising out of Lessee's default, including, without
limitation, expenses of repossession of the Equipment and the storage,
inspection, repair, reconditioning, sale and re-leasing thereof, and reasonable
attorneys' fees incurred by Lessor in exercising any of its rights or remedies
hereunder. For the purposes of this Section only, "fair market rental value"
and "fair market sales value" shall be determined by an appraisal of an
independent appraiser chosen by Lessor, and the cost of any such appraisal
shall be borne by Lessee. No remedy referred to in this Section is intended to
be exclusive, but each shall be cumulative and in addition to any other remedy
referred to above or otherwise available to Lessor at law or in equity or in
bankruptcy. Lessor shall have no duty to pay Lessee any surplus from sale or
lease of the Equipment, or in the fair market rental or sales value of the
Equipment, above all amounts payable by Lessee to Lessor. The exercise by
Lessor of any one or more remedies shall not be deemed to preclude the
simultaneous or later exercise by Lessor of any or all such previously
exercised remedies and any and all other remedies.
19. Assignment and Transfer by Lessor. (a) Lessor may at any time and
from time to time as sign to one or more security assignees (all herein called
the "Secured Party" and also called an "Assignee") for the purpose of securing
a loan to Lessor or for any other purpose, and at its sole discretion, may
also sell or transfer to one or more Persons (herein called the "Transferee"
and also called an "Assignee"), in any case subject to the rights of Lessee
under this Lease but without notice to or consent of
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Lessee, this Lease, any other Transactional Documents, any or all of the
Equipment, and all sums at any time due and to become due or at any time owing
or payable by Lessee to Lessor under this Lease or pursuant to any or all of
the Transaction Documents. The Secured Party shall not be obligated to perform
any duty, covenant or condition required to be performed by Lessor under this
Lease or any other Transactional Documents.
(b) Lessee agrees that notwithstanding any assignment to a Secured
Party, each and every covenant, agreement, representation and warranty of
Lessor under this Lease shall be and remain the sole liability of Lessor and of
every successor in interest of Lessor (excluding any Secured Party) or, in the
case of assignment to a Transferee, shall become and remain the sole liability
of the Transferee if so agreed to by the Transferee and if not so agreed to
shall be and remain the sole liability of Lessor. Lessee further agrees and
acknowledges that any assignment, sale or transfer by Lessor could not and
shall not materially change any duty or obligation of Lessee or materially
increase any burden or risk of Lessee.
(c) Lessee further acknowledges and agrees that from and after the
receipt by Lessee of written notice of an assignment from Lessor, Lessee shall
comply with the directions or demands given in writing by the Secured Party or
(to the extent not inconsistent with the directions or demands of the Secured
Party) by the Transferee pursuant to the terms and conditions hereunder, and
the Secured Party or Transferee shall have the right to exercise (either in its
own name or in the name of Lessor) all rights, privileges, and remedies of
Lessor provided for herein. Lessee agrees that any obligation to a Secured
Party as a result of the assignment of this Lease to a Secured Party as
aforesaid shall not be reduced or minimized by reason of any claim, defense,
counterclaim, set-off, abatement, reduction or recoupment or other right that
Lessee might otherwise have been able to assert against Lessor, any prior
Assignee or any Transferee. After any assignment to a Secured Party and unless
and until Lessee is otherwise notified by the Secured Party, this Lease may not
be amended or modified, and no consent or waiver hereunder shall be effective,
without the prior written consent of the Secured Party. Lessee agrees to
execute and Lessor or any Transferee or Secured Party may record any
instruments and documents relating to such assignment, mortgage or security
interest desired by Lessor or any Transferee or Secured Party. Lessee shall
promptly provide any such instruments and documents that are requested by
Lessor or any Assignee including certificates indicating any claim, defense,
counterclaim, set-off, abatement, reduction, recoupment or other right that
Lessee may have against Lessor or any Assignee, the date to which Basic Rent
has been paid under each Rental Schedule hereunder and that this Lease is in
effect without default or amendment, or the extent of such default or
amendment, as the case may be.
20. Recording and Filing; Expenses. Lessee will, upon demand of
Lessor, at Lessee's cost and expense, do and perform any other act and will
execute, acknowledge, deliver, file, register, record and deposit (and will
re-file, re-register, re-record or re-deposit whenever required) any and all
instruments required by law or requested by Lessor (or any Assignee) including,
without limitation, financing statements under the Uniform Commercial Code
(which, notwithstanding the intent of Lessor and Lessee that this is a true
lease, Lessor shall have the right to file wherever and whenever Lessor
requires), for the purpose of providing proper protection to the satisfaction
of Lessor (and/or any Assignee) of Lessor's title to any Equipment (and/or of
any Assignee's security interest in the Equipment) or for the purpose of
carrying out the intention of this Lease. Lessee will also pay, or will upon
demand reimburse Lessor for, all reasonable costs and expenses incurred by
Lessor in connection with this Lease, any other Transactional Documents, and
any related transactions, closings, assignments, sales and transfers to any
Secured Party or Transferee, enforcement of Lessor's rights under this Lease
and the other Transactional Documents, proceedings involving Lessee or any
Guarantor as a debtor under any chapter of the Bankruptcy Code, filings, the
documentation of this and any related transactions, and reasonable fees and
costs of attorneys for Lessor in connection therewith.
21. Automatic Lease Term Renewal. In the event that at the expiration
of the Primary Term Lessee does not exercise the purchase option set forth in
this Master Lease with respect to the Equipment subject to a Rental Schedule,
the Lease Term shall automatically be renewed for all of the Equipment subject
to such Rental Schedule for an additional term of twelve (12) months (the
"Renewal Term") at a
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monthly Basic Rent equal to one and one-half percent (1.5%) of the Acquisition
Cost of such Equipment, plus any applicable sales and other taxes, that shall
be paid monthly in advance.
22. Quiet Enjoyment. So long as no Event of Default has occurred and
is continuing hereunder, Lessee shall have peaceful and quiet use and enjoyment
of the Equipment during the Lease Term as against acts of Lessor or anyone
claiming solely by, through or under Lessor including any Secured Party or
Transferee.
23. Failure or Indulgence not Waiver; Additional Rights of Lessor. (a)
No failure to exercise, and no delay in exercising, any right, power or remedy
hereunder on the part of Lessor shall operate as a waiver thereof, nor shall
any single or partial exercise of any right, power or remedy preclude any other
or further exercise thereof or the exercise of any other right, power or
remedy. Any waiver, to be effective, must be in writing. A waiver of any
covenant, term or condition contained herein shall not be construed as a waiver
of any subsequent breach of the same covenant, term or condition. Receipt by
Lessor of any Basic Rent or Additional Rent with knowledge of the breach of any
provision hereof shall not constitute a waiver of such breach.
(b) Lessor shall be entitled to injunctive relief in case of the
violation or attempted or threatened violation of any of the provisions hereof,
to a decree compelling performance of any of the provisions hereof, and to any
other remedy allowed in law or in equity.
24. Sublease. Lessee shall not sublease the Equipment, relinquish
possession of the Equipment, or assign, pledge or hypothecate this Lease or any
of Lessee's rights or obligations hereunder, in whole or in part, without the
prior written consent of Lessor. Nevertheless, any such sublease and the rents,
profits and proceeds therefrom shall be the property of Lessor and, unless
Lessor has consented to such sublease, Lessor within 30 days after receiving
notice thereof in accordance with the provisions of this Master Lease on
notices shall have the right to declare the sublease void from its purported
commencement, to terminate the sublease or to accept the sublease. Any such
attempted relinquishment of possession, assignment, pledge or hypothecation by
Lessee without such consent shall be null and void.
25. Purchase Option. (a) If (i) no Event of Default, and no event
which with the giving of notice or lapse of time, or both, would constitute an
Event of Default, has occurred and then remains un remedied and (ii) this Lease
shall not have been earlier terminated, Lessee shall be entitled, at its
option, upon written notice to Lessor, as hereinafter provided, to purchase
all, but not less than all, items of the Equipment then subject to a Rental
Schedule, at the expiration of the Primary Term for such items of the Equipment
or, as the case may be, at the expiration of any Renewal Term for such items of
the Equipment, for an amount, with respect to each such item of the Equipment,
payable in immediately available funds, equal to 15% of the Acquisition Cost,
plus any applicable sales, excise or other taxes imposed as a result of such
sale (other than net income taxes attributable to such sale). Lessor's sale of
any item of the Equipment shall be on an "as-is", "where-is" basis, without any
representation or warranty by or recourse to Lessor, as provided by the
provisions of this Master Lease on disclaimer of warranties, and shall be
subject to such additional terms and conditions as may be specified in the
Rental Schedule. If Lessee intends to exercise said purchase option, Lessee
shall give written notice to Lessor to such effect at least 30 days prior to
the earliest expiration of the Primary Term of the item(s) of the Equipment
subject to the particular Rental Schedule with respect to which Lessee intends
to exercise its purchase option, or, if a Renewal Term is then in effect, at
least 30 days prior to the earliest expiration of the then current Renewal Term
of the item(s) of the Equipment subject to the particular Rental Schedule with
respect to which Lessee intends to exercise its purchase option. If Lessee
fails to give such written notice to Lessor as aforesaid, it shall be
conclusively presumed that Lessee has elected not to exercise such purchase
option. If Lessee gives such written notice, Lessee shall be obligated to buy,
and Lessor shall be obligated to sell, such Equipment on the terms herein
provided.
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(b) Notwithstanding any election by Lessee to purchase, the provisions
of this Lease shall continue in full force and effect until the transfer of
ownership of such Equipment upon the date of purchase by the delivery of a Xxxx
of Sale by Lessor.
26. Notices. Any notice or other communication required or permitted
to be given by either party hereto to the other party shall be deemed to have
been given upon its receipt, in writing, by the receiving party at its address
set forth below, or at such other address as the receiving party shall have
furnished to the other party by notice pursuant to this Section.
If to Lessee: Biofield Corp.
0000 Xxxxxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, XX 00000
If to Lessor: Financing for Science International, Inc.
00 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000-0000
27. Entire Agreement; Severability; Amendment or Cancellation of
Lease. This Lease and the commitment letter from Lessor to Lessee dated June
25, 1996, as extended on August 29,1996, constitute the complete and exclusive
statement of the terms of the agreement between the parties with respect to
the leasing of the Equipment and any sale of the Equipment by Lessor to Lessee.
Any provision of this Lease which is prohibited or unenforceable in any
jurisdiction shall be, as to such jurisdiction, ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction. LESSEE ACKNOWLEDGES RECEIPT OF A COPY OF THIS MASTER LEASE.
Lessor and Lessee agree that neither this Lease nor Lessee's acceptance or
deemed acceptance of any or all of the Equipment may be canceled, waived,
altered, amended, repudiated, terminated, rescinded, revoked or modified,
except by a writing signed by Lessee and a duly authorized representative of
Lessor.
BIOFIELD CORP.
/s/ Xxxxxxx X. Xxxxxxxxx
------------------------------
Signature of Lessee
28. Waiver of Jury. Lessor and Lessee waive any right and all right to
trial by jury in any action or proceeding relating in any way to this Lease.
29. Restriction of Limitation Periods and Damages. Any action for
breach of warranty or in respect of or relating to the Equipment or this Lease
that may be brought by Lessee against Lessor or any Assignee must be commenced
within one year after the cause of action accrues. Lessee shall not make any
claim in respect of or relating to the Equipment or this Lease against Lessor
or any Assignee for special consequential or punitive damages.
30. Governing Law; Consent to Jurisdiction and Service. This Lease
shall be governed by and construed in accordance with the laws of the State
of New York (other than the conflicts of laws provisions). Lessee agrees that
any legal action or proceeding against Lessee in respect of or relating to this
Lease or the Equipment may be brought in any state or federal court sitting in
the city of New York in the State of New York. Lessee hereby irrevocably
consents and submits to the nonexclusive personal jurisdiction of said courts
and irrevocably agrees that all claims in any such action or proceeding may be
heard and determined in and enforced by any such court. Lessee and Lessor
irrevocably consent to the
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service of summons, notice, or other process relating to any such action or
proceeding by delivery thereof to it by hand or by mail in the manner set forth
in the provisions of this Master Lease on notices.
31. Lessor's Right to Perform for Lessee. If Lessee fails to duly and
promptly perform any of its obligations under this Lease or fails to comply
with any of the covenants or agreements contained herein, Lessor may itself
perform such obligations or comply with such covenants or agreements, for the
account of Lessee, without thereby waiving any default, and any amount paid or
expense (including, without limitation, attorney's fees) reasonably incurred by
Lessor in connection with such performance or compliance shall, together with
interest thereon at the Default Interest Rate, be payable by Lessee to Lessor
on demand.
32. Agreement for Lease Only. Lessor and Lessee agree that this Lease
is and is intended to be a true lease (and not a lease in the nature of a
security interest) and further agree to treat this Lease as a true lease for
all purposes, including, without limitation, tax purposes.
33. Binding Effect. This Lease shall inure to the benefit of and be
binding upon the parties hereto and their respective permitted successors and
assigns.
34. General. The captions in this Master Lease and each Rental
Schedule are for convenience of reference only. There shall be only one
original executed copy of this Master Lease and of each Rental Schedule.
35. Definitions. The following terms, not elsewhere defined, shall
have the following meanings for all purposes hereof:
"Acquisition Cost" of any item of the Equipment shall mean an amount
equal to the sum of (i) the purchase price of such item of the Equipment paid
by Lessor pursuant to the purchase order for such item of the Equipment
assigned to or given by Lessor, plus (ii) any excise, sales or use tax,
freight, installation, set-up and other costs that are paid by Lessor on or
with respect to such item of the Equipment on or about the time of Lessor's
purchase of the Equipment or the Lease Commencement Date and that Lessor does
not request Lessee to directly reimburse to Lessor.
"Certificate of Inspection and Acceptance" shall mean a certificate in
the form designated by Lessor whereby Lessee evidences its acceptance of one or
more items of the Equipment for lease hereunder.
"Fair Market Value" shall mean, with respect to the Equipment in
question, the amount which would be paid for that Equipment in an arm's-length
sale transaction between an informed and willing buyer (not a used equipment or
scrap dealer) who wants the Equipment to be as described in the next following
sentence and is under no compulsion to buy, and an informed and willing seller
under no com pulsion to sell. In determining the Fair Market Value, it shall be
assumed (whether or not the same be true) that the Equipment is fully
operational, installed and in economically productive service and that all
maintenance and repairs including upgrades, replacements and other services
required by this Lease have been performed and that the Equipment is in such
condition to comply fully with the requirements of this Lease, including
provisions of this Master Lease governing the return of Equipment. The costs of
removal from the location of current use and installation at another location
for use shall not be a deduction in determining the Fair Market Value. Upon
any exercise by Lessee of the purchase option provided for by this Master Lease
at the expiration of the Primary Term for the Equipment subject to a Rental
Schedule, Lessor and Lessee agree that the Fair Market Value shall be fifteen
percent (15%) of the Acquisition Cost of such Equipment.
"Guarantor" shall mean a guarantor of any or all of the obligations
of Lessee pursuant to this Lease.
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"Guaranty" shall mean a writing containing a guaranty of any or all of the
obligations of Lessee pursuant to this Lease.
"Lease Commencement Date" with respect to an item of Equipment shall
mean the date of commencement of the Lease Term of the item as provided by the
applicable Rental Schedule.
"Lease Term" with respect to an item of the Equipment shall mean the
Primary Term plus any and all Renewal Terms plus any period during which Lessee
retains the Equipment on a month-to-month basis pursuant to provisions of this
Master Lease governing the return of the Equipment. The Lease Term shall
include the Lease Commencement Date and the date on which the Lease Term ends.
"Manufacturer" shall mean the Person that manufactures the item of the
Equipment in question.
"Master Lease" shall mean this Master Equipment Lease Agreement.
"Person" shall mean an individual, a corporation, a partnership, an
association, a joint-stock company, a trust, an estate, any incorporated
organization or similar association, a government or political subdivision, or
any other entity.
"Rental Schedule" shall mean each schedule, executed by Lessor and
Lessee pursuant to this Master Lease, providing for a description of some or
all of the Equipment to be leased hereunder, the place or places where such
Equipment shall be located, its Acquisition Cost, the Basic Rent payable by
Lessee with respect thereto, the Primary Term thereof, the Lease Commencement
Date with respect thereto, and such other matters as Lessor and Lessee may
agree upon.
"Stipulated Loss Value" shall mean the amounts specified in the Table
of Stipulated Loss Values applicable to the items of the Equipment subject to a
Rental Schedule, as provided by the Schedule B attached to the Rental
Schedule. Except as otherwise provided in a writing signed by Lessor and
Lessee, the Stipulated Loss Value immediately prior to the end of the Primary
Term for any items of the Equipment shall be the Stipulated Loss Value
throughout any Renewal Term(s) for such items, and thereafter until such items
are returned to Lessor pursuant to the provisions of this Lease or purchased by
Lessee pursuant to any then applicable purchase option provisions of this
Lease.
IN WITNESS WHEREOF, the duly authorized representatives of Lessor and
Lessee have executed this Master Lease as of the date first above written.
LESSOR: LESSEE:
FINANCING FOR SCIENCE BIOFIELD CORP.
INTERNATIONAL, INC.
By: /s/ Xxxxxxx Xxxxxxxx By: /s/ Xxxxxxx X. Xxxxxxxxx
------------------------------------------- ----------------------------------------------
Title: Senior Vice President - General Counsel Title: Executive Vice President - General Counsel
--------------------------------------- ------------------------------------------
ATTEST: ATTEST:
By: By:
------------------------------------------- ----------------------------------------------
Title: Title:
----------------------------------------- -------------------------------------------
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