1
Exhibit 10.33
OLYMPUS [LOGO]
OLYMPUS COMMERCIAL CREDIT
Division of Olympus Corporation
SCHEDULE "A" TO MASTER EQUIPMENT LEASE
($1.00 PURCHASE OPTION)
This Schedule A No. 1 (Schedule "A") is attached to and made a part of Master
Equipment Lease No. 0103096-1A ("Lease"), dated as of 3-17-96, by and between
Olympus Commercial Credit ("Lessor") and PharmChem Laboratories, Inc., 0000-X
X'Xxxxx Xxxxx, Xxxxx Xxxx, XX 00000 ("Lessee").
1. GENERAL: Lessor hereby leases to Lessee and Lessee hereby leases from
Lessor the Equipment described below on the terms and conditions set forth
in this Schedule A and in the above referenced Lease.
2. EQUIPMENT DESCRIPTION:
SERIAL
QUANTITY MODEL NUMBER DESCRIPTION
----------------------------------------------------------------------------
One (1) AU800 Analyzer without ISE and
extended service warranty
3. EQUIPMENT LOCATION:
0000-X X'Xxxxx Xxxxx
Xxxxx Xxxx, XX 00000
4. LEASE TERM:
Sixty (60) Months
5. RENT PAYMENT: Begin. First month's payments totaling
$5,885.00 inclusive of taxes, payable on the Commencement Date set forth in
the Acceptance Certificate. $5,885.00 inclusive of applicable taxes,
thereafter payable on the same date of each consecutive month during the
Lease Term.
INVOICING INFORMATION:
Street Address:
------------------------------------------------------------
City, State & Zip Code:
----------------------------------------------------
Department:
----------------------------------------------------------------
Person to Contact:
---------------------------------------------------------
Telephone No.:
-------------------------------------------------------------
Lessee Reference No. to be reflected on invoices:
--------------------------
6. PROPERTY TAXES: To the extent legally permissible, Lessee shall remit all
personal property tax assessments due and payable during the Lease Term
directly to the appropriate jurisdictions.
7. SALES/USE TAXES: Without limiting Section 9 of the Lease, Lessee will be
liable for present and future sales taxes, use and other excise taxes
payable in connection with the transactions described in this Schedule A.
Generally, depending upon applicable law, such taxes will be either (a)
computed by reference to the cost of the related Equipment, paid by Lessor
at the commencement of the Lease Term, and included in the total cost of
the Equipment and reflected in the rent payment, or (b) computed by
reference to the rent and other taxable payments under this Schedule A and
paid by Lessee along with each such payment. Lessor will
2
determine the amount of such taxes and the manner in which they will be
paid, taking into account any applicable tax exemption certificate and/or
direct pay permit provided by Xxxxxx.
8. DEFAULT: In addition to the events of default set forth in clauses (a)
through (e) of Section 12 of the Lease, occurrence of any of the following
events shall also give Lessor the right to exercise any one or more of the
remedies provided in Section 13 of the Lease; (f) Lessee consolidates with,
or merges with or into, any entity or sells or otherwise transfers all or
substantially all of its assets or stock to any entity, or incurs a
substantial amount of indebtedness other than in the ordinary course of its
business, or engages in a leveraged buy-out or any other form of corporate
reorganization, unless in each case and before the event in question,
Xxxxxx's obligations under each Schedule A hereto are assumed or guaranteed
in a manner reasonably satisfactory to Lessor by an entity having, in
Lessor's opinion, at least as good a financial condition and credit
standing as that of the Lessee immediately before the event; or (g) any
guarantor of Lessee's obligations under the Lease or this Schedule A
(hereinafter, "Guarantor"), becomes insolvent or makes an assignment for
the benefit of creditors, applies for or consents to the appointment or a
receiver, trustee, conservator or liquidator of Guarantor or of all or a
substantial part of Guarantor's assets, or if such receiver, trustee,
conservator or liquidator is appointed without the application of consent
of Guarantor, or Guarantor becomes bankrupt or commits an act of
bankruptcy, or any individual Guarantor dies.
9. PURCHASE OPTION: Upon expiration of the Lease Term of this Schedule A,
Lessee shall have the option to purchase all, the items of Equipment
subject to and described in this Schedule A for the aggregate purchase
price of One Dollar ($1.00), provided that (i) this Schedule A has not been
terminated earlier and no default has occurred and is continuing. Upon
payment to Lessor, Lessor shall transfer title to such Equipment to Lessee
all on an AS IS, WHERE IS, BASIS WITHOUT RECOURSE TO OR WARRANTY OF LESSOR
except that Lessor shall represent that it owns such Equipment free of any
lien placed on such Equipment by, through or under Lessor.
10. DEFINITIONS: The terms used in this Schedule A, which are not otherwise
defined herein, shall have the meanings set forth in the Lease identified
above.
11. LEASE TERMS AND CONDITIONS: Lessor and Lessee agree that this Schedule A
shall constitute a lease of the Equipment described in Section 2 of this
Schedule A upon the execution and delivery to Lessor by Xxxxxx of an
Acceptance Certificate. This Schedule A shall be subject to the terms and
conditions of the Lease, which are hereby incorporated herein by reference
and made a part hereof to the same extent as if such terms and conditions
were set forth herein. In the event of a conflict between the terms of the
Lease and this Schedule A, this Schedule A will prevail with respect to the
transaction evidenced by, and the Equipment described in, this Schedule A.
12. COUNTERPARTS: This Schedule A may be executed in any number of
counterparts, each of which shall be deemed an original but all such
counterpart together shall constitute but one and the same instrument. If
Lessor sells, transfers or grants a security interest in all or any part of
this Schedule A, the Equipment covered hereby and/or sums payable
hereunder, only that counterpart marked "Secured Party's Original" shall be
effective to transfer Lessor's rights herein and all other counterparts
shall be marked "Duplicate" to indicate that they are not "Secured Party's
Original."
13. ADDITIONAL TERMS AND PROVISIONS:
IN WITNESS WHEREOF, Xxxxxx and Xxxxxx have caused this Schedule A to be duly
executed by their authorized representative. Lessee acknowledges by its
representative below, that it is familiar with all of the terms and conditions
of the Lease referred to herein including those set forth on the reverse side
thereof.
Lessor: OLYMPUS COMMERCIAL CREDIT Lessor: OLYMPUS COMMERCIAL CREDIT
By: By: /s/ Xxxx X. Xxxxxx
------------------------------- -------------------------------
Name: Xxxxxxx Xxxxxx Name: Xxxx X. Xxxxxx
------------------------------ ------------------------------
Title: Senior Vice President Title: Vice President
----------------------------- -----------------------------
Date: Date: 3-17-96
----------------------------- -----------------------------
Lessee: PharmChem Laboratories, Inc.
By: /s/ Xxxxx X. Xxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxx
------------------------------
Title: CFO & VP
-----------------------------
(Corporation or Partnership Only)
Date: 1-8-96
-----------------------------
3
[OLYMPUS LETTERHEAD]
No. 0103096-1A
--------------
MASTER EQUIPMENT LEASE
between
Olympus Commercial Credit,
Two Corporate Center Drive, Melville, NY 11747-3157 (LESSOR)
and
Pharmchem Laboratories, Inc.,
0000-X X'Xxxxx Xxxxx, Xxxxx Xxxx, XX 00000
-------------------------------------------------------------------------------
---------------------------------------------------------------------- (LESSEE)
1. LEASE: Lessor hereby leases to Lessee, and Lessee hereby leases from
Lessor, the personal property described on the attached Schedule A, and
any additional Schedules A that may be executed between the parties from
time to time (hereinafter, with all replacement parts, repairs,
additions and accessories incorporated therein and/or affixed thereto,
all referred to herein as "Equipment").
2. TERM AND RENTAL: Subject to the conditions herein stated, the Equipment
shall be leased for the term stated on the applicable Schedule A and
such term shall commence with the delivery of the Equipment to Lessee,
its agent or carrier, whichever shall be earlier (Commencement Date).
Xxxxxx agrees to pay the total rent for the term, which shall be in the
total amount of all rental payments stated on the applicable Schedule A
plus such additional rentals as provided herein. All payments shall be
made in advance on the Commencement Date and on the same day of each
month thereafter, and sent to the address specified by Lessor.
This master Equipment Lease (Lease) is a "net" lease, and Xxxxxx
acknowledges and agrees that Xxxxxx's obligation to pay all rent and
other sums payable hereunder, and the rights of Lessor in and to such
payments, shall be absolute and unconditional and shall not be subject
to any abatement, reduction, setoff, defense, counterclaim or recoupment
due or alleged to be due, or by reason of, any past, present or future
claims which Lessee may have against Lessor, the manufacturer of the
Equipment, or against any person for any reason whatsoever.
3. TITLE: Lessor shall at all times retain title to the Equipment. All
documents of title and evidence of delivery shall be delivered to the
Lessor. Lessee will not change or remove any insignia or lettering which
is on the Equipment at the time of delivery or which is thereafter
placed thereon indicating Lessor's ownership thereof, and at any time
during the lease term, upon request of Lessor, Lessee will affix to the
Equipment, in a prominent place, labels, plates or other markings
supplied by Lessor stating that the Equipment is owned by Lessor. Lessor
may at Lessee's expense cause this Lease to be filed, recorded, refiled,
rerecorded or financing statements (which may be signed by the Lessor
only if permitted by statute) to be filed as permitted or required by
law. Lessee at its expense shall protect and defend Xxxxxx's title, at
all times keeping the Equipment free from any legal process and/or
encumbrances whatsoever, including, but not limited to liens,
attachments, levies and executions, and shall give Lessor immediate
written notice thereof and shall indemnify Lessor for any loss caused by
the failure of Lessee to take action as provided herein.
4. CHOICE OF LAW AND JURISDICTION; COSTS: This transaction is deemed to
have been made in New York and shall be construed in accordance with the
laws of the State of New York, without reference to conflicts of laws.
All controversies, disputes and claims arising out of or relating to
this transaction, or the breach or threatened breach of this Agreement,
shall be adjudicated by a court of competent jurisdiction within the
County of Suffolk, State of New York or the Federal District Court in
the Eastern District of New York. The Lessee hereby waives personal
service of process provided that process is served by certified or
registered mail. Lessee hereby waives any objection that it may have
regarding the personal jurisdiction or venue of any court in the State
of New York, County of Sulfolk. Xxxxxx agrees to pay any and all
reasonable costs, legal fees and expenses incurred by Xxxxxx resulting
from all controversies, disputes or claims which are adjudicated or
settled favorable to Lessor.
5. DELIVERY: Upon acceptance of Schedule A, Lessor will notify Lessee of
the Scheduled Delivery Date. Delivery shall be f.o.b. Lessor's shipping
point. Lessor shall ship by the most appropriate method but by doing so
shall not thereby assume any liability in connection with the shipment.
Risk of loss shall pass to Lessee upon delivery of the Equipment by
Lessor to the carrier. Lessee warrants that as of the date of delivery,
Lessee has unconditionally accepted each item of Equipment and will
cause a duly authorized representative of Lessee to promptly execute
and deliver an acceptance certificate to Lessor.
6. LIMITED WARRANTIES: EXCEPT FOR THE LIMITED WARRANTIES SET FORTH BELOW,
LESSOR MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED,
INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE, CONCERNING ANY PRODUCT, OR ANY PATENTS OR TECHNOLOGY
USED OR INCLUDED IN ANY PRODUCT. ALL OTHER GUARANTIES, WARRANTIES,
CONDITIONS AND REPRESENTATIONS WHATSOEVER, EITHER EXPRESS OR IMPLIED,
WHETHER ARISING UNDER ANY STATUTE, LAW, COMMERCIAL USAGE OR OTHERWISE
ARE HEREBY EXPRESSLY EXCLUDED.
Subject to the exclusion and upon the conditions stated below, Lessor
warrants that the Products sold shall conform to the description in the
Purchase Order and shall be free from defects in workmanship and
materials under normal use and service for the duration of terms as
stated on the warranty card to the original Lessee by Lessor. If any
Product should prove to be defective within said period, Lessor agrees,
at its option, either (i) to repair or, at Lessor's election (ii) to
replace with an equivalent product any defective Product, provided that
investigation and factory inspection disclose that such defect developed
under normal and proper use. Shipment charges to or from an authorized
Lessor service facility shall be paid by Lessee. Excluded from this
warranty and not warranted by Lessor in any fashion, either express or
implied are:
(a) accessories to Products, not manufactured by Lessor;
(b) any Product which has been repaired, tampered with or modified by
persons other than Lessor's own authorized service personnel unless
such repair by others is made with the written consent of Lessor;
(c) defects or damage to Products resulting from misuse, negligence or
improper storage.
XXXXXX ACKNOWLEDGES AND AGREES THAT LESSOR SHALL NOT BE RESPONSIBLE FOR
ANY DAMAGES THAT LESSEE MAY INCUR FROM DELAYED SHIPMENT, PRODUCT
FAILURE, PRODUCT DESIGN OR PRODUCTION OR FROM ANY OTHER CAUSE, WHETHER
LIABILITY IS ASSERTED IN CONTRACT OR TORT (INCLUDING NEGLIGENCE AND
STRICT PRODUCT LIABILITY). IN NO EVENT SHALL LESSOR BE LIABLE FOR LOSS
OF PROFITS, LOSS OF USE OR ANY INCIDENTAL, CONSEQUENTIAL OR SPECIAL
DAMAGES OF ANY KIND.
Representations and warranties made by any person, including dealers and
representatives of Lessor, which are inconsistent or in conflict with
the terms of this warranty, shall not be binding upon Lessor unless
reduced to writing and approved by an expressly authorized officer of
Lessor.
In the event of a substantial adverse change in Xxxxxx's financial condition,
Lessor may, at Xxxxxx's option, prior to the delivery of the Equipment,
terminate this Lease and all Lessor's obligations hereunder upon written notice
to Xxxxxx.
The Master Equipment Lease, including appended Schedule(s) A, is non-cancellable
by Lessee. Lessee warrants that all information submitted to Lessor herewith or
at any other time is true and correct. Lessor reserves the right to assign the
Master Equipment Lease, including appended Schedule(s) A, at any time.
ACCEPTED: Olympus Commercial Credit (LESSOR)
TITLE DATE
BY
X Vice Treasurer 2-17-96
------------------------------------------------------------------------------
BY
X
------------------------------------------------------------------------------
By execution hereof, the signer hereby certifies that he has read this Agreement
and that he is duly authorized to execute this Lease on behalf of Xxxxxx.
LESSEE SIGNATURE TITLE DATE
BY
X Xxxxx X. Xxxxxx CFO & VP 1-8/96
------------------------------------------------------------------------------
BY
X
------------------------------------------------------------------------------
REV 4/96
DISTRIBUTION: White - Original; Yellow - Corporate; Pink - Customer
4
[OLYMPUS LETTERHEAD]
VIA FEDERAL EXPRESS
March 14, 1996
Xxxxxxx Xxxxxx
PharmChem Laboratories, Inc.
0000-X X'Xxxxx Xxxxx
Xxxxx Xxxx, XX 00000
Lease Agreement Number: 0103096-1A
Dear Xx. Xxxxxx:
While reviewing your file, it has come to our attention that your order has been
completed with regards to your lease agreement. I have enclosed a new Delivery
and Acceptance Certificate which needs to be signed by the appropriate person as
acceptance of your equipment.
Please also find enclosed an invoice for the Advance Rental payment which is due
upon acceptance of your equipment.
Please return both the Delivery and Acceptance Certificate and the Advance
Rental payment and enclose in the self-addressed envelope provided as quickly as
possible so that we may process your lease in an expedient manner.
Thank you for your attention to this matter.
Sincerely,
OLYMPUS COMMERCIAL CREDIT
/s/ Xxxxxxxx Xxxxxxx
---------------------------
Xxxxxxxx Xxxxxxx
Contract/Sales Coordinator
Corporate Leasing
Enclosures
5
[OLYMPUS LETTERHEAD]
ACCEPTANCE CERTIFICATE
Acceptance Certificate To Schedule A No. 1
--------------------------------------
Dated As of , 19
----------------------------------------------------------- ---
To That Certain Master Equipment Lease No. 0103096-1A
-------------------------------------
Dated As of , 19
----------------------------------------------------------- ---
By and Between Olympus Commercial Credit, as Lessor,
and PharmChem Laboratories, Inc., 0000-X X'Xxxxx Xxxxx, Menlo Park, as Lessee
---------------------------------------------------------------
CA 94025
--------
Lessee acknowledges that all of the Equipment specified in the above
referenced Lease Schedule (i) has been delivered to, inspected by, and accepted
as of this date for lease by lessee, (ii) is of a size, design, capacity and
manufacture acceptable to Lessee and suitable for Lessee's purposes, (iii) is in
good working order, repair and condition, and (iv) has been installed to
Lessee's satisfaction or located, as the case may be, at the location specified
in the Lease Schedule.
Xxxxxx confirms and agrees that no default under the above referenced
Master Equipment Lease has occurred and is continuing.
The person signing this Acceptance Certificate on behalf of Lessee hereby
certifies that such person has read and acknowledges all terms and conditions of
the Master Equipment Lease and Schedule A and is duly authorized to execute this
Acceptance Certificate on behalf of Lessee.
The terms used in this Acceptance Certificate shall have the same meanings
defined in the Master Equipment Lease designated above.
This Acceptance Certificate is executed by Xxxxxx on the date set forth
below confirming acceptance of the Equipment. Lessee agrees that its obligation
to commence rental payments under the above referenced Schedule A shall commence
as of the date hereof ("Commencement Date").
LESSEE: PharmChem Laboratories, Inc.
-----------------------------------------------------------------------
By: Xxxxx X. Xxxxxx
---------------------------------------------------------------------------
Name: Xxxxx X. Xxxxxx
-------------------------------------------------------------------------
Title: VP & CFO
------------------------------------------------------------------------
(Corporation or Partnership Only)
Date: 3/17/96
-------------------------------------------------------------------------
6
[OLYMPUS LETTERHEAD]
O L Y M P U S C O M M E R C I A L C R E D I T
LEASE INVOICE
PharmChem Laboratories, Inc.
Accounts Payable
0000-X X'Xxxx Xxxxx
Xxxxx Xxxx, XX 00000
Lease No.: 0103096-1A
Invoice No.: 0103096-1
Amount Due: $5,885.00
Due Date: UPON RECEIPT
To ensure proper credit to your account please make checks payable to:
OLYMPUS COMMERCIAL CREDIT
Two Corporate Center Xxxxx
Xxxxxxxx, Xxx Xxxx 00000-0000
Attn: Xxxxxxxx Xxxxxxx
0-000-000-0000
