EXHIBIT 10.1
Master Lease No. 200062448
MASTER LEASE AGREEMENT
LESSOR: CITICORP VENDOR FINANCE, INC.
LESSEE: VIROLOGIC, INC.
TERMS AND CONDITIONS OF LEASE
1. LEASE OF EQUIPMENT.
A. Lessor hereby leases to Lessee, and Lessee hereby leases from Lessor, the
equipment described in one or more equipment schedules (the "Schedule"), that
may hereafter be executed by Lessor and Lessee (the equipment, together with all
replacement parts, repairs, additions, substitutions and accessories shall be
referred to as the "Equipment") on the terms and conditions contained in this
Lease ("Lease") and in any Schedule. This Lease and each of the terms and
conditions herein contained will be incorporated into each Schedule in full to
the same extent as if each of the terms and conditions had been repeated and set
forth in full therein, and this Master Lease Agreement shall control and be
effective as to all such Schedules except to the extent that the Master Lease
Agreement shall control and be effective as to all such Schedules except to the
extent that the Master Lease Agreement may be inconsistent with the terms and
provisions of such Schedule, in which event the terms and provisions of such
Schedule shall prevail. Each Schedule shall constitute a separate lease and a
distinct and independent obligation of the Lessee. The parties intend this Lease
to be a "Finance Lease" under Article 2A of the Uniform Commercial Code.
B. Acceptance by Lessor shall occur only as set forth in this Section 1 and
shall continue in force with respect to all items of Equipment for the Initial
Term specified in each Schedule. Lessee agrees promptly to date, execute and
deliver to Lessor, upon delivery to Lessee of the first item of Equipment listed
on a Schedule, a confirmation of delivery on Lessor's Equipment Acceptance
Certificate ("Receipt") substantially in the form of Exhibit A attached hereto.
If Lessee does not, for any reason, date, execute and deliver to Lessor the
Receipt, within ten days after delivery of such item of Equipment, Lessee hereby
irrevocably authorizes the Lessor as its attorney-in-fact to execute the Receipt
on Lessee's behalf and to insert the date that the Equipment was delivered to
Lessee.
2. ORDER AND DELIVERY OF EQUIPMENT; LESSOR'S RIGHT TO TERMINATE. Lessee hereby
requests Lessor to order the Equipment from the Supplier named on the Schedule
and to arrange for delivery of the Equipment to Lessee at Lessee's expense, and
to lease the Equipment to Lessee. If the Equipment is not delivered to and
accepted by Lessee in form satisfactory to Lessor, within ninety (90) days from
the date Lessor orders the Equipment, Lessor may terminate the applicable
Schedule and its obligations thereunder. Lessee waives any requirement of Lessor
to furnish Lessee a copy of Lessor's purchase order for the Equipment.
3. TERM AND RENT
A. The initial term ("Initial Term") of any Schedule to which this Lease relates
shall commence on the day the first item of Equipment listed on such Schedule is
delivered to Lessee or Lessee's representative (the "Commencement Date") and
shall be of such duration as is prescribed in such Schedule. Advance Rent and
any Security Deposit as provided in any Schedule shall be payable upon the
execution of this Lease or the applicable Schedule. Interim rent shall be
payable for the period between the Commencement Date and the first day of the
month following the Commencement Date at a daily rate equal to the periodic
rental provided in any Schedule divided by the number of days in the period and
subsequent payments shall be due periodically in advance on the first day of
each successive period thereafter until all rent and other sums chargeable to
Lessee hereunder are paid in full. LESSEE'S OBLIGATION TO PAY RENT AND LESSEE'S
OTHER MONETARY OBLIGATIONS HEREUNDER ARE ABSOLUTE AND UNCONDITIONAL AND ARE NOT
SUBJECT TO ANY ABATEMENT, SET-OFF, DEFENSE OR COUNTERCLAIM FOR ANY REASON
WHATSOEVER. Any Security Deposit shall secure all obligations of Lessee
hereunder and may be applied at Lessor's discretion to any past obligation of
Lessee and to the extent not applied shall be returned to Lessee, without
interest, at the expiration of this Lease or the applicable Schedule.
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All payments of rent shall be made to Lessor at the address set forth herein or
such other address as Lessor shall designate in writing.
B. Whenever any payment is not made by Lessee when due hereunder, Lessee agrees
to pay to Lessor, not later than one month thereafter as an administrative
charge to offset Lessor's collection expenses an amount calculated at the rate
of ten cents per one dollar for each such delayed payment, plus interest on all
monies due Lessor from and after the date same is due at the rate of one and
one-third (1-1/3%) percent per month until paid, but as to each of the foregoing
in no event more than the maximum rate permitted by law.
C. As used herein, "Actual Cost" means the cost to Lessor of purchasing and
delivering the Equipment to Lessee, including taxes, transportation and other
charges. The amount of each rent payment and the Security Deposit set forth in
the applicable Schedule are based on the total cost set forth in Lessor's
purchase order for the Equipment ("Estimated Cost"), which is an estimate, and
shall be adjusted proportionately if the Actual Cost of the Equipment is greater
than said estimate. Lessee hereby authorizes Lessor to adjust upward the amounts
set forth in the Schedule when the Actual Cost is known and to add to the amount
of each rent payment any sales, use or leasing tax that may be imposed on or
measured by the rent payment. Lessor will inform Lessee of the adjustments
necessary to reflect Actual Cost. If the Actual Cost of the Equipment on any
Schedule exceeds the Estimated Cost by more than ten (10%) percent thereof
(exclusive of taxes), Lessor shall, if it desires to add to the Estimated Cost
an amount in excess of 10% of Estimated Cost, so notify Lessee in writing.
Within fifteen (15) days thereafter, Lessee at its option may terminate the
relevant Schedule by giving notice to Lessor of its intention to do so,
effective the day of such notice, subject however to the provisions of Section
3.A hereof.
D. If, at any time prior to acceptance of the Equipment leased hereunder, Lessor
makes a general pricing increase with respect to new leases (including increases
reflecting increases in financing costs or operating expenses) and desires that
such increase be reflected in the rent to be charged to Lessee under the
Schedule relating to such Equipment, then Lessor shall promptly notify Lessee of
such increase ("Increase Notification"). If such increase is in excess of ten
(10%) percent of the amount of the rent payment, Lessee at its option may
terminate the relevant Schedule; provided, however, that Lessor must be
notified, within fifteen (15) days after the date of the Increase Notification,
of Lessee's intention to do so, effective the day of such notice to Lessor. If
any increase under this Section 3.D is not in excess of ten (10%) of the rent
payment, or if Lessor is not notified of Lessee's intention to terminate the
relevant Schedule within the fifteen (15) day period set forth herein, then the
relevant Schedule shall be automatically adjusted to the new higher rent
payment.
4. NO WARRANTIES BY LESSOR, DISCLAIMER OF IMPLIED WARRANTIES AND WAIVER OF
DEFENSES. LESSOR IS NOT THE MANUFACTURER OR SUPPLIER OF OR A DEALER IN THE
EQUIPMENT, AND MAKES NO WARRANTY, EXPRESSED OR IMPLIED, TO ANYONE, AS TO THE
SUITABILITY, DURABILITY, DESIGN, CONDITION, CAPACITY, PERFORMANCE OR ANY OTHER
ASPECT OF THE EQUIPMENT OR ITS MATERIAL OR WORKMANSHIP. LESSOR FURTHER DISCLAIMS
ANY IMPLIED WARRANTIES OF ANY KIND WITH RESPECT TO THE EQUIPMENT INCLUDING THE
WARRANTY OF MERCHANTABILITY AND FITNESS FOR USE OR PURPOSE. AS TO LESSOR AND ITS
ASSIGNS, LESSEE LEASES THE EQUIPMENT "AS IS." LESSEE REPRESENTS THAT IT HAS
SELECTED THE EQUIPMENT AND THE SUPPLIER AND ACKNOWLEDGES THAT LESSOR HAS NOT
RECOMMENDED THE SUPPLIER. LESSOR SHALL HAVE NO OBLIGATION TO INSTALL, MAINTAIN,
ERECT, TEST, ADJUST, OR SERVICE THE EQUIPMENT, ALL OF WHICH LESSEE SHALL
PERFORM, OR CAUSE THE SAME TO BE PERFORMED BY QUALIFIED THIRD PARTIES. LESSOR
AND LESSOR'S ASSIGNEE SHALL NOT BE LIABLE TO LESSEE OR OTHERS FOR ANY LOSS,
DAMAGE OR EXPENSE OF ANY KIND OR NATURE CAUSED DIRECTLY OR INDIRECTLY BY ANY
EQUIPMENT HOWEVER ARISING, OR THE USE OR MAINTENANCE THEREOF OR THE FAILURE OF
OPERATION THEREOF, OR THE REPAIRS, SERVICE OR ADJUSTMENT THERETO. NO
REPRESENTATION OR WARRANTY AS TO THE EQUIPMENT OR ANY OTHER MATTER BY THE
SUPPLIER OR OTHERS SHALL BE BINDING ON THE LESSOR NOR SHALL THE BREACH OF SUCH
RELIEVE LESSEE OF, OR IN ANY WAY AFFECT, ANY OF LESSEE'S OBLIGATIONS TO LESSOR
HEREIN. IF THE EQUIPMENT IS UNSATISFACTORY FOR ANY REASON, LESSEE SHALL MAKE
CLAIM ON ACCOUNT THEREOF SOLELY AGAINST
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SUPPLIER, AND ANY OF SUPPLIER'S VENDORS, AND SHALL NEVERTHELESS PAY LESSOR ALL
RENT AND OTHER SUMS PAYABLE UNDER THIS LEASE. LESSOR HEREBY ASSIGNS TO LESSEE,
SOLELY FOR THE PURPOSE OF PROSECUTING SUCH A CLAIM, ANY OF THE RIGHTS WHICH
LESSOR MAY HAVE AGAINST SUPPLIER AND SUPPLIER'S VENDORS FOR BREACH OF WARRANTY
OR OTHER REPRESENTATIONS RESPECTING THE EQUIPMENT. REGARDLESS OF CAUSE, LESSEE
WILL NOT ASSERT ANY CLAIM WHATSOEVER AGAINST LESSOR FOR LOSS OF ANTICIPATORY
PROFITS OR ANY OTHER INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, NOR SHALL
LESSOR BE RESPONSIBLE FOR ANY DAMAGES OR COSTS WHICH MAY BE ASSESSED AGAINST
LESSEE IN ANY ACTION FOR INFRINGEMENT. LESSOR MAKES NO WARRANTY AS TO THE
TREATMENT OF THIS LEASE FOR TAX OR ACCOUNTING PURPOSES. NOTWITHSTANDING ANY FEES
WHICH MAY BE PAID BY LESSOR TO SUPPLIER OR ANY AGENT OF SUPPLIER, LESSEE
UNDERSTANDS AND AGREES THAT NEITHER SUPPLIER NOR ANY AGENT OF SUPPLIER IS AN
AGENT OF LESSOR OR IS AUTHORIZED TO WAIVE OR ALTER ANY TERM OF CONDITION OF THIS
LEASE.
5. JURISDICTION AND VENUE. LESSEE CONSENTS TO THE PERSONAL JURISDICTION OF THE
FEDERAL AND STATE COURTS OF THE STATE OF NEW JERSEY WITH RESPECT TO ANY ACTION
ARISING OUT OF THIS LEASE OR THE EQUIPMENT, PROVIDED, HOWEVER, LESSOR MAY, IN
ITS SOLE DISCRETION, ENFORCE THIS LEASE IN ANY COURT HAVING LAWFUL JURISDICTION
THEREOF. THIS MEANS ANY LEGAL ACTION ARISING OUT OF THIS LEASE MAY BE FILED IN
NEW JERSEY, AND LESSEE MAY BE REQUIRED TO DEFEND AND LITIGATE ANY SUCH ACTION IN
NEW JERSEY. LESSEE AGREES THAT SERVICE OF PROCESS IN ANY SUIT MAYBE MADE BY
CERTIFIED MAIL, RETURN RECEIPT REQUESTED, ADDRESSED TO THE LESSEE AT THE ADDRESS
SET FORTH HEREIN.
6. TITLE; PERSONAL PROPERTY. The Equipment is, and shall at all times be owned
by Lessor and Lessee shall have no interest in the Equipment except that of
Lessee and Lessee shall have the right to purchase or otherwise acquire title to
or ownership of any of the Equipment. If Lessor supplies Lessee with labels
indicating that the Equipment is owned by Lessor, Lessee shall affix such labels
to and keep them in a prominent place on the Equipment. Lessee hereby authorizes
Lessor to insert in this Lease the serial numbers, and other identification data
of Equipment when determined by Lessor. To protect Lessor's rights in the
Equipment in the event this Lease is determined to be a security agreement,
Lessee hereby grants to Lessor a security interest in the Equipment described
herein and in the Schedules or in any invoices that contain descriptions of the
Equipment, and all proceeds and products thereof. Lessee hereby authorizes
Lessor, at Lessee's expense, to cause this Lease, or any statement or other
instrument in respect of this Lease showing the interest of Lessor in the
Equipment, including Uniform Commercial Code financing statements, to be filed
or recorded, and grants Lessor and its agents the right to execute Lessee's name
thereto. Lessee agrees to execute, deliver and file any statement or instrument
requested by Lessor for such purpose, and if certificates of title are issued or
outstanding with respect to any of the Equipment, Lessee will cause the interest
of Lessor to be properly noted thereon, and agrees to pay or reimburse Lessor
for any searches, filings, recordings, stamp fees or taxes related to the filing
or recording of any such instrument or statement, plus Lessor's handling
charges. Lessee shall, at its expense, protect and defend Lessor's title against
all persons claiming against or through Lessee, at all times keeping the
Equipment free from any legal process or encumbrance whatsoever including but
not limited to liens, attachments, levies and executions, and shall give Lessor
immediate written notice thereof and shall indemnify Lessor from any loss caused
thereby. Lessee shall, upon Lessor's request, execute or obtain from third
parties and deliver to Lessor such estoppel certificates, landlord's waivers and
such further instruments and assurances as Lessor deems necessary or advisable
for the confirmation or perfection of Lessor's rights hereunder. The Equipment
is, and shall at all times be and remain, personal property notwithstanding that
the Equipment or any part thereof may now be or hereafter become, in any manner,
affixed or attached to real property or any improvements thereon. Lessee agrees
to pay Lessor a non-refundable fee of $250 for Lessor's documentation costs,
including without limitation the preparation of financing statements.
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7. MAINTENANCE, USE AND LOCATION. Lessee shall, at its own cost and expense,
maintain the Equipment in good operating condition and repair and protect the
Equipment from deterioration other than normal wear and tear; the Equipment is
to be used for business purposes only in the regular course of its business,
within its normal operating capacity, without abuse; shall comply with all laws,
ordinances, regulations, requirements and rules with respect to the use,
maintenance and operation of the Equipment; shall not make any modification,
alteration or addition to the Equipment without the prior written consent of
Lessor, which shall not be unreasonably withheld, except for engineering changes
recommended by and made by the manufacturer; shall install on the Equipment all
engineering changes offered by the manufacturer without charge which enhance the
safety of the Equipment; shall not so affix the Equipment to realty as to change
its nature to real property or a fixture; and shall keep the Equipment at the
location shown herein, and shall not remove the Equipment without prior written
consent of Lessor. Lessee will grant access to the Equipment to Lessor, Lessor's
designee, and the manufacturer during normal working hours for inspection,
repair, preventative maintenance, installation of engineering changes and for
any other reasonable purpose. Lessee shall during the term of this Lease, at its
own expense, enter into and maintain in force a contract with the manufacturer
or other acceptable maintenance company covering the maintenance of the
Equipment and furnish a copy thereof to Lessor upon request. If Lessor incurs
any costs or expenses to bring the Equipment up to good working order and
appearance, Lessee shall immediately reimburse Lessor for all such costs or
expenses.
8. REDELIVERY; RENEWAL TERM. After the Initial Term, and after each renewal term
thereafter, this Lease shall be automatically renewed for a term of six months,
unless Lessee shall give Lessor written notice of termination at least one
hundred twenty (120) days before the expiration of the then current term. Within
ten (10) days of expiration or earlier termination of this Lease, Lessee shall
return the Equipment and all cable, wiring, connectors, accessories and
attachments thereto, freight and insurance prepaid, to Lessor in good repair,
condition and working order, ordinary wear and tear resulting from proper use
thereof only excepted. Lessee shall have the Equipment certified as acceptable
for the manufacturer's standard maintenance contract and such certification
shall be presented to Lessor at least fourteen (14) days prior to redelivery to
Lessor. Lessor shall have the right, by notice to Lessee, and at Lessee's cost,
to make all arrangements for the discontinuance, disassembly, packing and
transportation of each item of Equipment and to designate a redelivery location.
If Lessee fails to give Lessor the required notice or to return the Equipment as
provided herein, this Lease shall renew for additional terms of 120 days each at
a periodic rent equal to the periodic rent stated herein. Nothing contained
herein is intended to relieve Lessee of its obligations to return the Equipment
to Lessor as provided herein or restrict Lessor's right to recover the Equipment
in the event of the failure of Lessee to so return the Equipment at the
expiration or termination of this Lease. If requested by Lessor, Lessee shall
store the Equipment at Lessee's premises for a period of up to ninety (90) days
at no cost to Lessor.
9. RISK OF LOSS. Lessee shall bear all risks of loss or damage to Equipment from
any cause from the date of the shipment of the Equipment to Lessee until its
return to Lessor. The occurrence of any such loss or damage shall not relieve
Lessee of any obligation hereunder. Lessee shall notify Lessor of any damage to
or destruction of the Equipment. In the event of loss or damage, Lessee, at
Lessor's sole option, shall: (a) repair the damaged Equipment; or (b) replace
lost or unrepairable Equipment with substantially identical Equipment in good
condition and working order with documentation creating clear title thereto in
Lessor; or (c) pay to Lessor the present value of the unpaid balance of the rent
to become due under this Lease plus Lessor's anticipated residual value of the
Equipment at the scheduled expiration of this Lease, all discounted at six (6%)
percent per annum to the date of loss. Upon Lessor's receipt of replacement
Equipment or payment as provided in (b) or (c) hereof, Lessee and/or Lessee's
insurer shall be entitled to Lessor's interest in said item for salvage
purposes, in its then condition and location, without warranty, express or
implied.
10. INSURANCE. Lessee shall keep the Equipment insured against all risks of loss
or damage from every cause whatsoever for not less than the full replacement
value thereof, and shall carry public liability and property damage insurance
covering the Equipment and its use in amounts customary for such Equipment. All
such insurance shall be in form and amount and with companies acceptable to
Lessor and name Lessor and its assignee as loss payees, as their interests may
appear with respect to property damage coverage, and as additional insureds with
respect to public liability coverage. Lessee shall pay the premiums therefore
and deliver said policies, or duplicates thereof or certificates of coverage
therefore to Lessee, with long form Lender's loss payable endorsement upon the
policy or policies or by independent instrument, that provides
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Lessor a right to thirty (30) days' written notice before the policy can be
altered or canceled and the right without obligation to payment of premium.
Should Lessee fail to provide such insurance coverage, Lessor may obtain such
coverage for its benefit or for the benefit of Lessee and charge Lessee
therefore. Lessee hereby appoints Lessor as Lessee's attorney-in-fact to make
claim for, receive payment of, and execute and endorse all documents, checks, or
drafts for loss or damage under any said insurance policies and to apply the
proceeds in furtherance of the exercise of Lessor's options as provided herein.
11. TAXES AND CHARGES. This Lease is intended to be a net lease, and all
payments hereunder are intended to be net to Lessor to the extent permitted by
applicable law. Lessee shall pay directly (or, at Lessor's option, reimburse
Lessor for) all license fees, assessments and other government charges, and all
sales, use, excise, franchise, personal property and any other similar tax or
taxes (herein collectively called "Charges") now or hereafter imposed, levied or
assessed by any state, federal or local government or agency upon any of the
Equipment or upon the leasing, purchase, ownership, use, possession, financing
or operation thereof, or upon the receipt of rental payments therefore, even if
Lessee's status provides for its exemption from the Charges (excluding income
and gross receipt taxes on rental payments, except any such tax on rental
payments which is a substitution for, or relieves Lessee from, the payment of
taxes which Lessee would otherwise be obligated to pay or reimburse Lessor as
herein provided) before the same shall become in default or subject to the
payment of any penalty or interest. Lessee shall supply Lessor with receipts or
other evidence of payment of all Charges as may reasonably be requested by
Lessor. Lessee shall further comply with all state and local laws requiring the
filing of ad valorem or other tax returns relating to any Charges. Lessee shall
notify the Lessor of the imposition of, or, to Lessee's knowledge, the proposed
imposition of, any Charges by supplying to Lessor (within five (5) days after
receipt thereof by Lessee) a copy of the invoice or other documents respecting
such Charges. Unless otherwise directed by Lessor in writing, Lessor shall pay
all personal property taxes with respect to the Equipment and Lessee shall
reimburse Lessor therefore upon demand.
12. LEASE IRREVOCABILITY AND OTHER COVENANTS AND REPRESENTATIONS OF LESSEE.
LESSEE AGREES THAT THIS LEASE IS IRREVOCABLE FOR THE FULL TERM HEREOF AND THE
LESSEE'S OBLIGATIONS UNDER THIS LEASE ARE ABSOLUTE AND SHALL CONTINUE WITHOUT
ABATEMENT AND REGARDLESS OF ANY DISABILITY OF LESSEE TO USE THE EQUIPMENT OR ANY
PART THEREOF BECAUSE OF ANY REASON INCLUDING, BUT NOT LIMITED TO WAR, ACT OF
GOD, GOVERNMENTAL REGULATIONS, STRIKE, LOSS, DAMAGE, DESTRUCTION, OBSOLESCENCE,
FAILURE OF OR DELAY IN DELIVERY, FAILURE OF THE EQUIPMENT TO OPERATE PROPERLY,
TERMINATION BY OPERATION OF LAW, OR ANY OTHER CAUSE. LESSEE AGREES TO DELIVER
TO LESSOR ANNUAL FINANCIAL STATEMENTS AND SUCH INTERIM STATEMENTS, AS LESSOR
REQUESTS. LESSEE REPRESENTS THAT THIS LEASE HAS BEEN DULY AUTHORIZED BY ALL
NECESSARY ACTION ON ITS PART, IS A VALID, BINDING AND LEGALLY ENFORCEABLE
OBLIGATION OF LESSEE IN ACCORDANCE WITH ITS TERMS AND IS NOT IN ANY RESPECT
INCONSISTENT WITH LESSEE'S CHARTER OR BY-LAWS OR ANY LAW, REGULATION, ORDER OR
AGREEMENT BINDING UPON LESSEE; AND THE EQUIPMENT SHALL BE USED BY LESSEE SOLELY
FOR BUSINESS PURPOSES AND THAT ALL FINANCIAL AND OTHER INFORMATION SUBMITTED TO
LESSOR WAS AND WILL BE TRUE AND CORRECT.
13. INDEMNITY. Lessee shall indemnify and hold Lessor harmless from and against
any and all claims, actions, suits, proceedings, costs, expenses, damages and
liabilities, pre and post judgment attorneys' fees and costs, arising out of,
connected with, or resulting from the Equipment or this Lease, including without
limitation, the manufacture, selection, delivery, possession, use, lease,
operation, removal or return of the Equipment.
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14. DEFAULT AND REMEDIES.
A. The occurrence of any one of the following events shall be deemed an "Event
of Default" under this Lease: (a) Lessee fails to pay any rent or any other
payment hereunder when due; or (b) Lessee fails to pay, when due, any
indebtedness to Lessor arising independently of this Lease, including but not
limited to, any other leases between Lessor and Lessee, and such default shall
continue for five (5) days; or (c) Lessee fails to perform any of the terms,
covenants or conditions of this Lease or any other lease between Lessor and
Lessee, other than as provided in (a) or (b) above, and such failure continues
after ten (10) days written notice; or (d) any representation of Lessee
contained in this Lease or any other related agreement, or in any credit or
other information submitted to Lessor in connection with this transaction is
untrue or incorrect; or (e) Lessee sells substantially all of its assets out of
the ordinary course of business, merges or consolidates with any other person,
or, sustains a change in its ownership of more than 20% in the aggregate; or (f)
Lessee becomes insolvent or makes an assignment for the benefit of creditors; or
(g) a receiver, trustee, conservator or liquidator of Lessee or of all or a
substantial part of its assets is appointed with or without the application or
consent of Lessee; or (h) a petition is filed by or against Lessee under the
Bankruptcy Code or any amendment thereto, or under any other insolvency law or
laws, providing for the relief to debtors.
B. Upon an Event of Default, Lessor may, to the extent permitted by applicable
law, exercise any one or more of the following remedies:
(i) Terminate this Lease with respect to all or any part of Equipment;
(ii) Recover from Lessee all rent and other amounts then due and as they
shall thereafter become due hereunder;
(iii) Take possession of any or all items of Equipment on any Schedule,
wherever the same may be located, without demand or notice, without any court
order or other process of law and without liability to Lessee for any damages
occasioned by such taking of possession, and any such taking of possession shall
not constitute a termination of this Lease;
(iv) Declare the entire unpaid balance of rent and other amounts for the
unexpired term of this Lease immediately due and payable and recover from
Lessee, with respect to any and all items of Equipment and with or without
repossessing the Equipment the sum of:
1. The unpaid balance of all rent and other amounts due for the
balance of the term of this Lease, discounted at four (4%) percent per annum;
and,
2. Lessor's anticipated residual recovery from the Equipment at
the scheduled expiration of the initial term of this Lease, discounted at four
(4%) percent per annum; provided, however, that upon repossession or surrender
of Equipment, Lessor may sell, lease or otherwise dispose of Equipment in a
commercially reasonable manner, with or without notice and on public or private
bid, and if so, shall apply the net proceeds thereof (after deducting all
expenses, including attorneys' fees and costs incurred in connection therewith),
to the sum of (1) and (2) above;
(v) Declare any other leases between Lessor and Lessee in default and
exercise with respect to such leases any of the remedies provided for herein;
(vi) Pursue any other remedy available at law or in equity, including
but not limited to seeking damages or specific performance and/or obtaining an
injunction.
C. Lessee shall be liable and shall pay to Lessor all expenses incurred by
Lessor in connection with the pre and post judgment enforcement of any of the
Lessor's remedies, including all expenses of repossessing, storing, shipping,
repairing, and selling the Equipment, and Lessor's reasonable attorneys' fees
and costs. Lessor and Lessee acknowledge the difficulty in establishing a value
for the unexpired lease term and owing to such difficulty agree that the
provisions of this paragraph 14 represent an agreed measure of damages and are
not to
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be deemed a forfeiture or penalty.
D. All remedies of Lessor hereunder are cumulative, are in addition to any
other remedies provided for by law, and may, to the extent permitted by law, be
exercised concurrently or separately. The exercise of any one remedy shall not
be deemed to be an election of such remedy or to preclude the exercise of any
other remedy. No failure on the part of the Lessor to exercise and no delay in
exercising any right or remedy shall operate as a waiver thereof or modify the
terms of this Lease. A waiver of default shall not be a waiver of any other or
subsequent default. If this Lease is determined to be subject to any laws
limiting the amount chargeable or collectible by Lessor then Lessor's recovery
shall in no event exceed the maximum amounts permitted by law.
15. ASSIGNMENT, WAIVER OF DEFENSES: QUIET ENJOYMENT. LESSEE SHALL NOT ASSIGN,
TRANSFER, PLEDGE, HYPOTHECATE, OR OTHERWISE DISPOSE OF THIS LEASE OR ANY
INTEREST HEREUNDER NOR SUBLET OR LEND EQUIPMENT OR PERMIT IT TO BE USED BY
ANYONE OTHER THAN LESSEE OR LESSEE'S EMPLOYEES WITHOUT LESSOR'S PRIOR WRITTEN
CONSENT. Lessor may, without notice or consent, assign or transfer this Lease or
grant a security interest in any Equipment, any rentals, or any other sums due
or to become due hereunder, and in such event Lessor's assignee, transferee or
grantee shall have all the rights, powers, privileges, and remedies of Lessor
hereunder. Lessee agrees that, following its receipt of notice of any assignment
by Lessor of this Lease or the Rental Payments payable hereunder, it will pay
the Rental Payments due hereunder directly to the assignee (or to whomever the
assignee shall designate). Lessee agrees that no assignee of Lessor shall be
bound to perform any duty, covenant, condition or warranty attributable to
Lessor, and Lessee further agrees not to raise any claim or defense arising out
of this Lease or otherwise which it may have against Lessor as a defense,
counterclaim, or offset to any action by an assignee or secured party hereunder.
Upon Lessor's request, Lessee will acknowledge to any assignee receipt of
Lessor's notice of assignment. Nothing contained herein is intended to relieve
Lessor of any of its obligations. Provided Lessee is not in default hereunder,
Lessee shall quietly use and enjoy the Equipment, subject to the terms hereof.
16. PERFORMANCE BY LESSOR OF LESSEE'S OBLIGATIONS. In the event Lessee fails to
comply with any provisions of this Lease, Lessor shall have the right, but shall
not be obligated, to effect such compliance on behalf of Lessee upon ten (10)
days prior written notice to Lessee. In such event, all monies expended by, and
all expenses of Lessor in effecting such compliance shall be deemed to be
additional rent, and shall be paid by Lessee to Lessor at the time of the next
rent payment, together with interest at the rate of one and one-third (1-1/3%)
percent per month but in no event more than the maximum permitted by law.
17. GOVERNING LAW; JURISDICTION AND VENUE; WAIVER OF TRIAL BY JURY AND RIGHTS
AND REMEDIES UNDER THE UNIFORM COMMERCIAL CODE. THIS LEASE SHALL BE GOVERNED
BY, AND CONSTRUED ACCORDING TO THE LAWS OF THE STATE OF NEW JERSEY. TO THE
EXTENT PERMITTED BY LAW, LESSEE WAIVES TRIAL BY JURY IN ANY ACTION RELATED TO
OR ARISING OUT OF THIS LEASE OR THE EQUIPMENT BY OR AGAINST LESSOR HEREUNDER.
LESSEE HEREBY WAIVES ANY AND ALL RIGHTS AND REMEDIES GRANTED LESSEE BY SECTIONS
2A-508 THROUGH 2A-522 OF THE UNIFORM COMMERCIAL CODE. LESSEE WAIVES THE RIGHT
TO FILE ANY AMENDMENTS OR TERMINATIONS OF FINANCING STATEMENTS WITHOUT LESSOR'S
SIGNATURE.
18. GENERAL. This Lease shall inure to the benefit of and is binding upon the
heirs, legatees, personal representatives, successors and assigns of the parties
hereto. Time is of the essence of this Lease. This Lease and any Schedule shall
be effective when executed by a duly authorized officer of Lessor. This Lease
and any Schedule contains the entire agreement between Lessor and Lessee with
respect to the subject matter hereof, and all negotiations and understandings
have been merged herein. No modification of this Lease shall be effective unless
in writing and executed by an executive officer of Lessor. All covenants and
obligations of Lessee to be performed pursuant to this Lease, including all
payments to be made by Lessee hereunder, shall survive the expiration or earlier
termination of this Lease. If more than one Lessee is named in this Lease, the
liability of each shall be joint and several. In the event any provision of this
Lease shall be unenforceable, then such provision shall be deemed deleted,
however, all other provisions hereof shall remain in full force and effect.
Service of all notices under this Lease shall be sufficient if given personally,
mailed to the party intended at its address set forth herein, or at such other
addresses said party may provide in writing from time to
-7 of 8-
time by certified mail, or overnight mail service. Any such notice sent by
certified mail to said address shall be deemed effective five (5) days after it
is deposited in the United States mail, duly addressed and with postage prepaid,
and any notice given by delivery or overnight mail shall be deemed effective
when received. This lease, any Schedule and all related documents, including (a)
amendments, addendums, consents, waivers and modifications which may be executed
contemporaneously or subsequently herewith, (b) documents received by the Lessor
from the Lessee, and (c) financial statements, certificates and other
information previously or subsequently furnished to the Lessor, may be
reproduced by the Lessor by any photographic, photostatic, microfilm,
micro-card, miniature photographic, compact disk reproduction or other similar
process and the Lessor may destroy any original document so reproduced. The
Lessee agrees and stipulates that any such reproduction shall, to the extent
permitted by applicable law, be admissible in evidence as the original itself in
any judicial or administrative proceeding (whether or not the original is in
existence and whether or not the reproduction was made by the Lessor in the
regular course of business) and that any enlargement, facsimile or further
reproduction of the reproduction shall likewise be admissible in evidence.
IN WITNESS WHEREOF, the parties have executed this Lease as of 4/21,
2002.
LESSEE: VIROLOGIC, INC.
PLACE OF ORGANIZATION: CALIFORNIA
ATTEST: /s/ [SIGNATURE ILLEGIBLE] BY: /s/ XXXXX XXXXXX
---------------------------- -------------------------------------
Secretary Title: CFO
----------------------------------
LESSOR: CITICORP VENDOR FINANCE, INC.
000 XXXX XXXX XXXXX
XX. XXXXXX, XX 00000-0000
BY: /s/ XXXXXX PSZAEGOWSKI
-------------------------------------
Title: AM
----------------------------------
- 8 of 8 -
CITICORP VENDOR FINANCE, INC.
EQUIPMENT SCHEDULE NO. 200062448
This Equipment Schedule No 200062448 ("Equipment Schedule") to that certain
Master Lease Agreement Number 200062448 (hereinafter called the "Master Lease")
between Lessor and the Lessee whose name appears below, together with the
Master Lease, constitutes a lease of the Equipment described below
(hereinafter, collectively, this "Lease"). All the terms and conditions of the
Master Lease are incorporated herein as if all said terms and conditions were
fully set forth herein. All capitalized terms used but not defined herein shall
have the meanings given such terms in the Master Lease. It is the intent of
the parties that this Equipment Schedule be separately enforceable as a
complete and independent lease, independent of all other Equipment Schedules to
the Master Lease.
------------------------------------------------------------------------------------------------------------------------------------
LESSEE: SUPPLIER
VIROLOGIC, INC. APPLERA CORPORATION dba APPLIED BIOSYSTEMS GROUP
000 XXXXXX XXXXX XXXX. 000 XXXXXXX 0
XXXXX XXX XXXXXXXXX, XX 00000 XXXXXXX, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
QTY DESCRIPTION OF EQUIPMENT (INDICATE IF USED EQUIPMENT) (MODEL NO.)
(SERIAL NO.)
------------------------------------------------------------------------------------------------------------------------------------
1 Refurbished 3700 DNA Analyzer Sequencing including extended service
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
EQUIPMENT LOCATION IF DIFFERENT THAN ABOVE:
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
INITIAL TERM RENTAL TOTAL NO. AND AMOUNT OF EACH RENTAL ADVANCE RENTAL PAYMENT SECURITY
OF LEASE PAYMENTS PAYMENT DURING INITIAL TERM OF LEASE TO BE APPLIED TO DEPOSIT
PAYABLE THE FIRST 1 MONTH(S) AND
36 MONTHS PERIODICALLY 1 monthly payment of $30,634.94 followed by: $N/A
AS FOLLOWS 35 monthly payments of $7,134.94 THE LAST 0 MONTH(S)
RENTAL
x MONTHLY
--- PAYMENTS TOTALING
QUARTERLY $30,634.94
--- (ADVANCE PAYMENTS MUST
OTHER ACCOMPANY LEASE
--- APPLICATION)
------------------------------------------------------------------------------------------------------------------------------------
MONTHLY RENT: The first payment of monthly rent is due and payable on the
Commencement Date. Subsequent payments of monthly rent are due and payable on
the first day of each succeeding month.
CHATTEL PAPER: To the extent this Lease may be considered "chattel paper" as
defined in the Uniform Commercial Code, only Counterpart Number One of any of
the manually executed counterparts of this Equipment Schedule incorporating the
terms of the
Master Lease Agreement, shall constitute the original of this
Lease, and no interest in this Lease may be created or transferred except by
transfer of possession of that counterpart.
RENTAL PAYMENTS: The rental payments are predicated on the 3 Year Interest SWAP
Rate of 4.05% as of 2/21/02. The final rate (and payment) will be adjusted
upward and will fix upon the commencement of the Lease, based upon changes in
the 3 Year Interest SWAP Rates in effect at that time. Interest SWAP Rates are
published daily in the Federal Reserve Statistical Release H-15, which can be
found at:
xxxx://xxx.xxxxxxxxxxxxxx.xxx/xxxxxxxx/X00/xxxxxx/x00xxx.xxx.
MAINTENANCE/SUPPLIES/SERVICES: Lessee agrees to pay the monthly payments under
this Lease which may include charges (the "Charges") for supplies ("Supplies"),
maintenance and/or warranty services (collectively the "Services") to be
furnished by Supplier to Lessee for use with the Equipment. Lessee agrees that
Lessor is not a manufacturer or supplier of the Supplies or Services and Lessee
will look only to Supplier for the furnishing of Supplies and the performance
of Services. Lessee further agrees that its obligations under this Lease are
unconditional notwithstanding any breach by Supplier of any obligation to
Lessee to furnish the Supplies and/or provide the Services.
EQUIPMENT SCHEDULE ACCEPTED BY:
CITICORP VENDOR FINANCE, INC. (Lessor) Virologic, Inc. (Lessee)
By: /s/ XXXXXX PSZAEGOWSKI By: /s/ XXXXX XXXXXX
----------------------------------- --------------------------------
(Authorized Signature) (Authorized Signature)
/s/ Xxxxxx Pszaegowski, AM, 6-11-02 Xxxxx Xxxxxx CFO 4/21/02
------------------------------------ -----------------------------------
(Name/Title/Date) (Name/Title/Date)
Attest:
----------------------------
EQUIPMENT SCHEDULE COUNTERPART NO. 1 OF 1
EXHIBIT A
EQUIPMENT ACCEPTANCE CERTIFICATE
CERTIFICATE OF DELIVERY AND ACCEPTANCE
EQUIPMENT SCHEDULE NUMBER: 200062448
DATED: 4-21-02
----------------------------
In compliance with the terms, conditions and provisions of the
Master
Lease Agreement Number 200062448 dated 4-21-02 by and between the undersigned
("Lessee") and Citicorp Vendor Finance, Inc. ("Lessor"), Lessee hereby:
(a) certifies and warrants to the Lessor that all the equipment (the
"Equipment") described in the above referenced equipment schedule (the
"Schedule") has been delivered, inspected, fully installed and is
operational, and has not been previously used or placed in service for its
specifically assigned function for the first time, unless otherwise
expressly indicated on the Schedule, prior to the Acceptance Date as
indicated below;
(b) accepts all the Equipment for all purposes under the Lease and all
attendant documents as of such Acceptance Date;
(c) restates and reaffirms, as of such Acceptance Date, each of the
representations, warranties and covenants given to Lessor in the Lease;
(d) acknowledges and represents that it has reviewed and approves of all
of the purchase documents for the Equipment, if any.
(e) confirms that this acceptance and the Lease is irrevocable.
ACCEPTANCE DATE: 6-10-02
-------------------
Lessee: Virologic, Inc.
By: /s/ XXXXX XXXXXX
-------------------------
Name: Xxxxx Xxxxxx
-----------------------
Title: CFO
----------------------
COUNTERPART 1 OF 1
[CitiCapital(SM) LOGO]
DATE: APRIL 12, 2002
Re: Equipment Schedule No. 200062448 to Master Agreement No. 200062448 (the
"Agreement") between Virologic, Inc. as user ("User") and Citicorp Vendor
Finance, Inc., as owner ("Owner").
For good and valuable consideration, the receipt of which is hereby
acknowledged, and intending to be legally bound, the parties hereto agree as
follows:
1. Provided no Event of Default exists uncured and notwithstanding anything
contained in the Agreement to the contrary, Owner hereby grants to User the
option to purchase the equipment subject to the Agreement (the "Equipment")
at the end of the initial term of the Agreement for $1.00 (the "Purchase
Option"). User shall exercise the Purchase Option by giving Owner not less
than 30 days written notice prior to the last day of the initial term of
the Agreement. IF THE PURCHASE OPTION IS EXERCISED, THE EQUIPMENT WILL BE
SOLD BY OWNER TO USER "AS IS, WHERE IS", WITHOUT ANY WARRANTY, EXPRESS OR
IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE OR USE, OR WARRANTY OF TITLE.
2. In the event that User does not elect to purchase the Equipment under the
Purchases Option or the Purchase Option is deemed null and void under the
circumstances described in Paragraph 1 herein, User shall return the
Equipment in accordance with the terms and conditions of the Agreement.
3. Capitalized terms used but not defined herein shall have the meanings
ascribed to such terms in the Agreement.
4. Except to the extent expressly modified by this letter agreement, the terms
and conditions of the Agreement shall remain unchanged and in full force
and effect.
Each of the parties hereto has caused this letter agreement to be executed by
its duly authorized officers, all as of the date first above written.
USER: VIROLOGIC, INC. CITICORP VENDOR FINANCE, INC.
BY: /s/ Xxxxx Xxxxxx BY: /s/ Xxxxxx Pszaegowski
-------------------------- ------------------------------
TITLE: CFO TITLE: AM
------------------------- -----------------------------
DATE: 4/21/02 DATE: 6-11-02
------------------------- -----------------------------
$1.00 Option Letter
Revised 5/01
CitiCapital is a service xxxx of Citicorp
SECRETARY OR ASSISTANT SECRETARY'S CERTIFICATE
AS TO CORPORATE RESOLUTION AND INCUMBENCY OF OFFICERS
I HEREBY CERTIFY THAT I AM SECRETARY/(ASSISTANT SECRETARY) of
Virologic, Inc.
(Legal Name of Lessee)
and that the following is a true and correct copy of a resolution duly adopted
by the Board of Directors either by unanimous written consent dated _______, or
at a meeting called pursuant to proper notice and held on 16, at which time a
quorum was present and voting throughout. I further certify that this resolution
is in full force and effect, never having been revoked or modified;
RESOLVED, that Xxxxxxx X. Xxxxx , the CEO ;
------------------------------- ---------------------
(Name of Authorized Officer (Title of Officer)
Xxxxx Xxxxxx , the CFO
------------------------------------------- ---------------------------;
(Name of Authorized Officer) (Title of Officer)
, the
------------------------------------------- ---------------------------;
(Name of Authorized Officer) (Title of Officer)
of this corporation are each hereby authorized and directed to execute and
deliver on behalf of this Corporation under its corporate seal which the
Secretary (Assistant Secretary) of this Corporation is authorized to affix and
attest, a Lease Agreement by and between this Corporation and CITICORP VENDOR
FINANCE, INC., substantially in the form attached hereto and hereby approved,
but with such changes, supplements, modifications and additions as each
aforesaid officer in his sole discretion deems appropriate; the execution and
delivery by such officers to be conclusive evidence of this approval thereof;
and such officers are further directed and authorized to execute and deliver
from time to time and as often as s/he deems necessary or desirable additional
Lease Agreements covering certain equipment to be employed in the business of
this corporation; and such officers are further authorized and directed to
execute all such ancillary and supporting documents and instruments, and to do
any and all other things as may to such officers seem necessary or advisable to
effectuate the full intent and purposes of this resolution and of the said Lease
Agreement(s) and other documents.
The Undersigned further certifies that the following persons are duly
elected, qualified and acting officers, continuously holding the office
indicated opposite each of their names and that the signature appearing opposite
each of their name is the genuine signature of such person;
Name Office Signature
Xxxxxxx X. Xxxxx CEO /S/ XXXXXXX X. XXXXX
----------------------- ----------------- -----------------------------
Xxxxx Xxxxxx CFO LS/ XXXXX XXXXXX
----------------------- ----------------- -----------------------------
----------------------- ----------------- -----------------------------
BY: /s/ XXXXX X. XXXXX (Seal)
------------------------------------------
Secretary (Assistant Secretary)
Xxxxx X. Xxxxx DATED: 4-16-2002
--------------------------------------- ----------
(Print or Type Name of Above Signature)
(CORPORATE SEAL)
