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EXHIBIT 10.13
MASTER EQUIPMENT LEASE NO. 053-9997
Under this Master Equipment Lease No. 053-9997 (the "Lease"), dated as of
November 1, 1995, Phoenix Leasing Incorporated, a California corporation
("Lessor"), hereby leases to AtheroGenics, Inc., a Georgia corporation
("Lessee"), and Lessee hereby leases from Lessor, the equipment (herein called
"Equipment") which is described on the schedule attached hereto or any
subsequently-executed schedule entered into by Lessor and Lessee and which
incorporates this Lease by reference. Any such schedules shall hereinafter
individually be referred to as a "Schedule" and collectively be referred to as
the "Schedules." Lessor hereby leases the Equipment to Lessee upon the following
terms and conditions:
1. TERM OF AGREEMENT. The term of this Lease begins on the date
set forth above and shall continue thereafter and be in effect so long as and at
any time any Schedule entered into pursuant to this Lease is in effect. The
Initial Term and rent payable with respect to each leased item of Equipment
shall be as set forth in and as stated in the respective Schedule(s). The terms
of each Schedule hereto are subject to all conditions and provisions of this
Lease as it may at any time be amended. Each Schedule shall constitute a
separate and independent lease and contractual obligation of Lessee and shall
incorporate the terms and conditions of this Master Equipment Lease and any
additional provisions contained in such Schedule. In the event of a conflict
between the terms and conditions of this Lease and any additional provisions of
such Schedule, the additional provisions of such Schedule shall prevail with
respect to such Schedule only.
2. NON-CANCELLABLE LEASE. This Lease and any Schedule cannot be
cancelled or terminated except as expressly provided herein. This Lease
(including all Schedules to this Lease) constitutes a net lease and Lessee
agrees that its obligations to pay all rent and other sums payable hereunder
(and under any Schedule) and the rights of Lessor and assignee in and to such
rent and other sums, are absolute and unconditional and are not subject to any
abatement, reduction, setoff, defense, counterclaim or recoupment due or alleged
to be due to, or by reason of, any past, present or future claims which Lessee
may have against Lessor, any assignee, the manufacturer or seller of the
Equipment, or against any person for any reason whatsoever.
3. LESSOR COMMITMENT. So long as no Event of Default or event
which with the giving of notice or passage of time, or both, could become an
Event of Default has occurred or is continuing, Lessor agrees to lease to Lessee
the groups of Equipment described on each Schedule, subject to the following
conditions: (i) that in no event shall Lessor be obligated to lease Equipment to
Lessee hereunder where the aggregate purchase price of all Equipment leased to
Lessee hereunder would exceed $750,000.00; (ii) Equipment will be purchased by
Lessor in not more than one funding per month which funding shall be not less
than $35,000.00 except for a final advance which may be less than $35,000.00;
(iii) Lessor shall not be obligated to purchase Equipment hereunder after June
30, 1996; (iv) all Lease documentation required by Lessor has been executed by
Lessee or provided by Lessee no later than December 10, 1995; (v) the equipment
described on the Schedule is acceptable to Lessor; (vi) with respect to each
funding Lessee has provided to Lessor each of the closing documents and other
items described in Exhibit A hereto (which documents shall be in form and
substance acceptable to Lessor) and which list may be modified for each
subsequent funding;
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(vii) there is no material adverse change in Lessee's condition, financial or
otherwise, as determined by Lessor, and Lessee so certifies, from (yy) the date
of the most recent financial statements delivered by Lessee to Lessor prior to
execution of this Lease, to (zz) the date of the proposed lease of the
Equipment; (viii) Lessee is performing according to its Income Statement and
Statement of Cash Flows referred to as "AtheroGenics Income Statement and
Statement of Cash Flows for 1995 and 1996" as may be amended from time to time
in form and substance acceptable to Lessor ("Business Plan"); (ix) Lessor or its
agent has inspected and placed identification labels on the Equipment; (x)
Lessee shall offer to Lessor, on an exclusive basis, all lease transactions for
equipment contemplated by Lessee until expiration of all Schedules; however if
Lessor declines to finance any such transaction or Lessee and Lessor cannot
agree upon terms, then Lessee shall be free to seek such financing from any
other third party; and (xi) Lessor has received in form and substance acceptable
to Lessor: (a) Lessee's interim financial statements signed by a financial
officer of Lessee; and (b) evidence of Lessee's receipt of $2,250,000.00 from
the issuance of Series B Preferred Shares by October 31, 1995.
4. NO WARRANTIES BY LESSOR. (a) Lessee has selected both (i) the
Equipment and (ii) the suppliers (herein called "Vendor") from whom Lessor is to
purchase the Equipment. LESSOR MAKES NO WARRANTY EXPRESS OR IMPLIED AS TO ANY
MATTER WHATSOEVER, INCLUDING THE CONDITION OF THE EQUIPMENT, ITS MERCHANTABILITY
OR ITS FITNESS FOR ANY PARTICULAR PURPOSE, AND AS TO LESSOR, LESSEE LEASES THE
EQUIPMENT "AS IS" AND WITH ALL FAULTS. (b) If the Equipment is not properly
installed, does not operate as represented or warranted by Vendor or is
unsatisfactory for any reason, Lessee shall make any claim on account thereof
solely against Vendor and shall, nevertheless, pay Lessor all rent payable under
this Lease, Lessee hereby waiving any such claims as against Lessor. Lessor
hereby agrees to assign to Lessee solely for the purpose of making and
prosecuting any said claim, to the extent assignable, all of the rights which
Lessor has against Vendor for breach of warranty or other representation
respecting the Equipment. Lessor shall have no responsibility for delay or
failure to fill the order. (c) Lessee understands and agrees that neither the
Vendor nor any salesman or other agent of the Vendor is an agent of Lessor. No
salesman or agent of Vendor is authorized to waive or alter any term or
condition of this Lease, and no representations as to the Equipment or any other
matter by the Vendor shall in any way affect Lessee's duty to pay the rent and
perform its other obligations as set forth in this Lease. (d) Lessee hereby
requests Lessor to purchase Equipment from Vendor and to lease Equipment to
Lessee on the terms and conditions of the Lease set forth herein. (e) Lessee
hereby authorizes Lessor to insert in this Lease and each Schedule hereto the
serial numbers and other identification data of the Equipment when determined by
Lessor.
5. LESSEE'S REPRESENTATIONS AND WARRANTIES. Lessee represents and
warrants that (a) it is a corporation in good standing under the laws of the
state of its incorporation, and duly qualified to do business, and will remain
duly qualified during the term of this Lease, in each state where the Equipment
will be located, as specified on each Schedule hereto; (b) it has full authority
to execute and deliver this Lease and perform the terms hereof, and this Lease
has been duly authorized and constitutes valid and binding obligations of Lessee
enforceable in accordance with its terms; (c) this Lease will not contravene any
law, regulation or judgment affecting Lessee
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or result in any breach of any agreement or other instrument binding on Lessee;
(d) no consent of Lessee's shareholders or holder of any indebtedness, or filing
with, or approval of, any governmental agency or commission, is a condition to
the performance of the terms hereof; (e) there is no action or proceeding
pending or threatened against Lessee before any court or administrative agency
which might have a materially adverse effect on the business, financial
condition or operations of Lessee; (f) no deed of trust, mortgage or third party
interest arising through Lessee will attach to the Equipment or the Lease; (g)
the Equipment will remain at all times under applicable law, removable personal
property, free and clear of any lien or encumbrance in favor of Lessee or any
other person, notwithstanding the manner in which the Equipment may be attached
to any real property; (h) all credit, financial and any other information
submitted to Lessor herewith or any other time is true and correct; and (i)
Lessee has provided, or will provide if requested, Lessee's tax identification
number.
6. EQUIPMENT ORDERING. Lessee shall be responsible for all
packing, rigging, transportation and installation charges for the Equipment and
Lessor may separately invoice Lessee for such charges. Lessee has selected the
Equipment itself and shall arrange for delivery of Equipment so that it can be
accepted in accordance with Section 7 hereof'. Lessee hereby agrees to indemnify
and hold Lessor harmless from any claims, liabilities, costs and expenses, .
including reasonable attorneys' fees, incurred by Lessor arising out of any
purchase orders or assignments executed by Lessor with respect to any Equipment
or services relating thereto.
7. LESSEE ACCEPTANCE. Lessee shall return to Lessor the signed
and dated Acceptance Notice attached to each Schedule hereto (a) acknowledging
the Equipment has been received, installed and is ready for use and (b)
accepting it as satisfactory in all respects for the purposes of this Lease.
Lessor is authorized to fill in the Rent Start Date on each Schedule in
accordance with the foregoing.
8. LOCATION; INSPECTION; LABELS. Equipment shall be delivered to
and shall not be removed from the Equipment "Location" shown on each Schedule
without Lessor's prior written consent, which "Location" shall in all events be
within the United States. Lessor shall have the right to inspect Equipment at
any reasonable time. Lessee shall be responsible for all labor, material and
freight charges incurred in connection with any removal or relocation of such
Equipment which is requested by the Lessee and consented to by Lessor, as well
as for any charges due to the installation or moving of the Equipment. The
rental payments shall continue during any period in which the Equipment is in
transit during a relocation. Lessor or its agent shall xxxx and label Equipment,
which labels shall state Equipment is owned by Lessor, and Lessee shall keep
such labels on the Equipment as labeled by Lessor or its agent.
9. EQUIPMENT MAINTENANCE. (a) General. Lessee will locate or base
each item of Equipment where designated in an Acceptance Notice and will
reasonably permit Lessor to inspect such item of Equipment and its maintenance
records. Lessee will at its sole expense comply with all applicable laws, rules,
regulations, requirements and orders with respect to the use, maintenance,
repair, condition, storage and operation of each item of Equipment. Except as
required herein, Lessee will not make any addition or improvement to any item of
Equipment that is not readily removable without causing material damage to any
item or impairing its original value or
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utility. Any addition or improvement that is so required or cannot be so removed
will immediately become the property of Lessor.
(b) Service and Repair. With respect to computer
equipment, other than personal computers, Lessee has entered into, and will
maintain in effect, Vendor's standard maintenance contract or another contract
satisfactory to Lessor for a period equal to the term of each Schedule and
extensions thereto which provides for the maintenance of the Equipment and
repairs and replacement parts thereof in good condition and working order, all
in accordance with the terms of such maintenance contract. Lessee shall have the
Equipment certified for the Vendor's standard maintenance agreement prior to
delivery to Lessor upon expiration of this Lease. With respect to any other
Equipment, Lessee will, at its sole expense, maintain and service, and repair
any damage to, each item of Equipment in a manner consistent with prudent
industry practice and Lessee's own practice so that such item of Equipment is at
all times (i) in the same condition as when delivered to Lessee, except for
ordinary wear and tear, (ii) in good operating order for the function intended
by its manufacturer's warranties and recommendations.
10. LOSS OR DAMAGE. Lessee assumes the entire risk of loss to the
Equipment through use, operation or otherwise. Lessee hereby indemnifies and
holds harmless Lessor from and against all claims, loss of rental payments,
costs, damages, and expenses relating to or resulting from any loss, damage or
destruction of the Equipment, any such occurrence being hereinafter called a
"Casualty Occurrence." On the first rental payment date following such Casualty
Occurrence, or, if there is no such rental payment date, thirty (30) days after
such Casualty Occurrence, Lessee shall (i) repair the Equipment, returning it to
good operating condition or (ii) replace the Equipment with identical equipment
in good condition and repair, the title to which shall vest in Lessor and which
thereafter shall be subject to the terms of this Lease; or (iii) pay to Lessor
(a) any unpaid accrued amounts relating to such Equipment due Lessor under this
Lease up to the date of the Casualty Occurrence, and (b) a sum equal to the
Casualty Value as set forth in the Casualty Value table attached to each
Schedule hereto for such Equipment. Upon the making, of such payment, the term
of this Lease as to each unit of Equipment with respect to which the Casualty
Value was paid shall terminate.
11. GENERAL INDEMNITY. Lessee will protect, indemnify and save
harmless Lessor from and against all liabilities, obligations, claims, damages,
penalties, causes, of action, costs and expenses, imposed upon or incurred by or
asserted against Lessor or any assignee of Lessor by Lessee or any third party
by reason of the occurrence or existence (or alleged occurrence or existence) of
any act or event relating to or caused by the Equipment, including but not
limited to, consequential or special damages of any kind, or any failure on the
part of Lessee to perform or comply with any of the terms of this Lease. In the
event-that any action, suit or proceeding is brought against Lessor by reason of
any such occurrence, Lessee, upon request of Lessor, will at Lessee's' expense
resist and defend such action, suit or proceeding or cause the same to be
resisted and defended by counsel designated and approved by Lessor. Lessee's
obligations under this Section 11 shall survive the expiration of this Lease
with respect to acts or events, occurring or alleged to have occurred prior to
the return of the Equipment to Lessor at the end of the Lease term.
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12. INSURANCE. Lessee at its expense shall keep the Equipment
insured for the entire term and any extensions of this Lease against all risks
for at least the replacement value of such Equipment and shall provide for (a)
loss payable endorsement to Lessor or any assignee of Lessor. Lessee shall
maintain public liability and property damage insurance in an amount not less
than $3,000,000, naming Lessor as additional insured. Such insurance shall
contain insurer's agreement to give thirty (30) days written notice to Lessor
before cancellation or material change of any policy of insurance. Lessee will
provide Lessor and any assignee of Lessor with a certificate of insurance from
the insurer evidencing Lessor's or such assignee's interest in the policy of
insurance. Such insurance shall cover any Casualty Occurrence to any unit of
Equipment. Notwithstanding anything in Section 10 or this Section 12 to the
contrary, this Lease and Lessee's obligations hereunder and under each Schedule
shall remain in full force and effect with respect to any unit of Equipment
which is not subject to a Casualty Occurrence. If Lessee fails to provide or
maintain insurance as required herein, Lessor shall have the right, but shall
not be obligated to obtain such insurance. In that event, Lessee shall pay to
Lessor the cost thereof.
13. TAXES. Lessee agrees to reimburse Lessor for, (or pay directly
if instructed by Lessor), and agrees to indemnify and hold Lessor harmless from,
all fees, (including, but not limited to, license, documentation, recording and
registration fees), and all sales, use, gross receipts, personal property,
occupational, value added or other taxes, levies, imposts, duties, assessments,
charges or withholdings of any nature whatsoever, together with any penalties,
fines, additions to tax, or interest thereon (all of the foregoing being
hereafter referred to as "Impositions") except same as may be attributable to
Lessor's income, arising at any time prior to or during the term of this Lease,
or upon termination or early termination of this Lease and levied or imposed
upon Lessor directly or otherwise by any Federal, state or local government in
the United States or by any foreign country or foreign or international taxing
authority upon or with respect to (i) the Equipment, (ii) . the exportation,
importation, registration, purchase, ownership, delivery, leasing, possession,
use, operation, storage, maintenance, repair, return, sale, transfer of title,
or other disposition thereof, (iii) the rentals, receipts, or earnings arising
from the Equipment, or any disposition of the rights to such rentals, receipts,
or earnings, (iv) any payment pursuant to this Lease, and (v) this Lease or the
transaction or any part thereof. Lessee's obligations under this Section 13
shall survive the expiration of this Lease with respect to acts or events
occurring or alleged to have occurred prior to the return of the Equipment to
Lessor at the end of the Lease term.
14. PAYMENT BY LESSOR. If Lessee shall fail to make any payment or
perform any act required hereunder, then Lessor may, but shall not be required
to, after such notice to Lessee as is reasonable under the circumstances, make
such payment or perform such act with the same effect as if made or performed by
Lessee. Lessee will upon demand reimburse Lessor for all sums paid and all costs
and expenses incurred in connection with the performance of any such act.
15. SURRENDER OF EQUIPMENT. Upon termination or expiration of this
Lease, with respect to each group of Equipment, Lessee will forthwith surrender
the Equipment to Lessor delivered in as good order and condition as originally
delivered, reasonable wear and tear excepted. Lessor may, at its sole option,
arrange for removal and transportation of the Equipment provided that Lessee's
obligations under Sections 10, 11 and 12 shall not be released. Lessee shall
bear all
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expenses of delivering (which include, but are not limited to, the
de-installation, insurance, packaging and transportation of) the Equipment to
Lessor's location or other location within the United States as Lessor may
request. In the event Lessee fails to deliver the Equipment as directed above,
all obligations of Lessee under this Lease, including rental payments, shall
remain in full force and effect until Lessee delivers the Equipment to Lessor.
16. ASSIGNMENT. WITHOUT LESSORS PRIOR WRITTEN CONSENT, SUCH
CONSENT NOT TO BE UNREASONABLY WITHHELD, LESSEE SHALL NOT (a) ASSIGN, TRANSFER,
PLEDGE, HYPOTHECATE OR OTHERWISE DISPOSE OF THIS LEASE, EQUIPMENT, OR ANY
INTEREST THEREIN, OR (b) SUBLET OR LEND EQUIPMENT OR PERMIT IT TO BE USED BY
ANYONE OTHER THAN LESSEE OR LESSEE'S EMPLOYEES. LESSOR MAY ASSIGN THIS LEASE OR
GRANT A SECURITY INTEREST IN ANY OR ALL EQUIPMENT, OR BOTH, IN WHOLE OR IN PART
TO ONE OR MORE ASSIGNEES OR SECURED PARTIES WITHOUT NOTICE TO LESSEE. If Lessee
is given notice of such assignment it agrees to acknowledge receipt thereof in
writing and Lessee shall execute such additional documentation as Lessor's
assignee shall require. Each such assignee and/or secured party shall have all
of the rights, but none of the obligations, of Lessor under this Lease, unless
such assignee or secured party expressly agrees to assume such obligations in
writing. Lessee shall not assert against any assignee and/or secured party any
defense, counterclaim or offset that Lessee may have against Lessor.
Notwithstanding any such assignment, and providing no Event of Default has
occurred and is continuing, Lessor, or its assignees, secured parties, or their
agents or assigns, shall not interfere with Lessee's right to quietly enjoy use
of Equipment subject to the terms and conditions of this Lease. Subject to the
foregoing, this Lease inures to the benefit of and is binding upon the
successors and assignees of the parties hereto. Lessee acknowledges that any
such assignment by Lessor will not materially change Lessee's duties or
obligations under the Lease or increase any burden of risk on Lessee.
17. DEFAULT. (a) Event of Default. Any of the following events or
conditions shall constitute an "Event of Default" hereunder: (i) Lessee's
failure to pay any monies due to Lessor hereunder or under any Schedule beyond
the fifth (5th) day after the same is due; (ii) Lessee's failure to comply with
its obligations under Section 12 or Section 16; (iii) Lessee's failure to comply
with or perform any term, covenant, condition, warranty or representation of
this Lease or any Schedule hereto or under any other agreement between Lessee
and Lessor or under any lease of real property covering the location of
Equipment if such failure to comply or perform is not cured by Lessee within
thirty (30) days of receipt of notice thereof; (iv) seizure of the Equipment
under legal process; (v) the filing by or against Lessee of a petition for
reorganization or liquidation under the Bankruptcy Code or any amendment thereto
or under any other insolvency law providing for the relief of debtors; (vi) the
voluntary or involuntary making of an assignment of a substantial portion of its
assets by Lessee, or any guarantor ("Guarantor") under any guaranty executed in
connection with this Lease ("Guaranty"), for the benefit of its creditors, the
appointment of a receiver or trustee for Lessee or any Guarantor for any of
Lessee's or Guarantor's assets, the institution by or against Lessee or any
Guarantor of any formal or informal proceeding for dissolution, liquidation,
settlement of claims against or winding up of the affairs of Lessee or any
Guarantor, provided that in the case of all such involuntary proceedings, same
are not dismissed within sixty (60) days after commencement; or (vii)
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the making by Lessee or any Guarantor of a transfer of all or a material portion
of Lessee's or Guarantor's assets or inventory not in the ordinary course of
business.
(b) Remedies. If any Event of Default shall have
occurred:
(i) Lessor may proceed by appropriate court action or
actions either at law or in equity to enforce performance by Lessee, of the
applicable covenants of this Lease, or to recover damages therefor; or
(ii) Lessee will, without demand, on the next rent payment
date following the Event of Default, pay to Lessor as liquidated damages which
the parties agree are fair and reasonable under the circumstances existing at
the time this Lease is entered into, and not as a penalty, an amount equal to
the Casualty Value of the Equipment set forth in Exhibit C together with any
rent or other amounts past due and owing by Lessee hereunder; and
(iii) Lessor may, without notice to or demand upon Lessee;
(a) Take possession of the Equipment and lease or sell
the same or any portion thereof, for such period, amount, and to such entity as
Lessor shall elect. The proceeds of such lease or sale will be applied by Lessor
(A) first, to pay all costs and expenses, including reasonable legal fees and
disbursements, incurred by Lessor as a result of the default and the exercise of
its remedies with respect thereto, (B) second, to pay Lessor an amount equal to
any unpaid rent or other amounts past due and payable plus the Casualty Value,
to the extent not previously paid by Lessee, and (C) third, to reimburse Lessee
for the Casualty Value to the extent previously paid. Any surplus remaining
thereafter will be retained by Lessor.
(b) Take possession of the Equipment and hold and keep
idle the same or any portion thereof.
Lessee agrees to pay all internal and out-of-pocket
costs of Lessor related to the exercise of its remedies, including direct costs
of its in-house counsel and out-of-pocket legal fees and expenses. At Lessor's
request, Lessee shall assemble the Equipment and make it available to Lessor at
such location as Lessor may designate. Lessee waives any right it may have to
redeem the Equipment.
Repossession of any or all Equipment shall not
terminate this Lease or any Schedule unless Lessor notifies Lessee in writing.
Any amount required to be paid under this Section shall be increased by a
service charge at the rate of 1.5% per month, or the highest rate of interest
permitted by applicable law, whichever is less, accruing from the date the
Casualty Value or other amounts are payable hereunder until such amounts are
paid.
None of the above remedies is intended to be
exclusive, but each is cumulative and in addition to any other remedy available
to Lessor, and all may be enforced separately or concurrently.
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18. LATE PAYMENTS. Lessee shall pay to Lender an amount equal to
the greater of 10% of all amounts owed Lessor by Lessee which are not paid when
due or $100, but in no event an amount greater than the highest rate permitted
by applicable law. If such funds have not been received by Lessor at Lessor's
place of business or by Lessor's designated agent by the date such funds are due
under this Lease, Lessor shall xxxx Lessee for such charges. Lessee acknowledges
that invoices for rentals due hereunder are sent by Lessor for Lessee's
convenience only. Lessee's non-receipt of an invoice will not relieve Lessee of
its obligation to make rent payments hereunder.
19. LESSOR'S EXPENSE. Lessee shall pay Lessor all costs and
expenses including reasonable attorney's fees and the fees of the collection
agencies, incurred by Lessor in enforcing any of the terms, conditions or
provisions hereof.
20. OWNERSHIP; PERSONAL PROPERTY. The Equipment shall be and
remain personal property of Lessor, and Lessee shall have no right, title or
interest therein or thereto except as expressly set forth in this Lease,
notwithstanding the manner in which it may be attached or affixed to real
property, and upon termination or expiration of the Lease term, Lessee shall
have the duty and Lessor shall have the right to remove the Equipment from the
premises where the same be located whether or not affixed or attached to the
real property or any building, at the cost and expense of Lessee.
21. ALTERATIONS; ATTACHMENTS. No alterations or attachments shall
be made to the Equipment without Lessor's prior written consent, which shall not
be given for changes that will affect the reliability and utility of the
Equipment or which cannot be removed without damage to the Equipment, or which
in any way affect the value of the Equipment for purposes of resale or re-lease.
22. FINANCING STATEMENT. Lessee will execute financing statements
pursuant to the Uniform Commercial Code. Lessee authorizes Lessor to file
financing statements signed only by Lessor (where such authorization is
permitted by law) at all places where Lessor deems necessary.
23. MISCELLANEOUS. (a) Lessee shall provide Lessor with such
corporate resolutions, financial statements and other documents as Lessor shall
request from time to time. (b) Lessee represents that the Equipment is being
leased hereunder for business purposes. (c) Time is of the essence with respect
to this Lease. (d) Lessee shall keep its books and records in accordance with
generally accepted accounting principles and practices consistently applied and
shall deliver to Lessor its annual audited financial statements, unaudited
monthly financial statements to include any financial information given to
Lessee's Board of Directors, and signed by an officer of Lessee and such other
unaudited financial statements as may be reasonably requested by Lessor. (e) Any
action by Lessee against Lessor for any default by Lessor under this Lease,
including breach of warranty or indemnity, shall be commenced within one (1)
year after any such cause of action accrues.
24. NOTICES. All notices hereunder shall be in writing, by
registered mail, or reliable messenger or delivery service and shall be
directed, as the case may be, to Lessor at 0000 Xxxxxx
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Xxxxxxxxx, Xxx Xxxxxx, Xxxxxxxxxx 00000, Attention: Account Management and to
Lessee at AtheroGenics, Inc., 0000 Xxxxxxxxxx Xxxxxx, Xxxxxxxx, XX 00000,
Attention:_____________.
25. ENTIRE AGREEMENT. Lessee acknowledges that Lessee has read
this Lease, understands it and agrees to be bound by its terms, and further
agrees that it and each Schedule constitute the entire agreement between Lessor
and Lessee with respect to the subject matter hereof and supersedes all previous
agreements, promises, or representations. The terms and conditions hereof shall
prevail notwithstanding any variance with the terms of any purchase order
submitted by the Lessee with respect to any Equipment covered hereby.
26. AMENDMENT. This Lease may not be changed, altered or modified
except by an instrument in writing signed by an officer of the Lessor and the
Lessee.
27. WAIVER. Any failure of Lessor to require strict performance by
Lessee or any waiver by Lessor of any provision herein shall not be construed as
a consent or waiver of any other breach of the same or any other provision.
28. SEVERABILITY. If any provision of this Lease is held invalid,
such invalidity shall not affect any other provisions hereof.
29. JURISDICTION AND WAIVER OF JURY TRIAL. This Lease shall be
governed by and construed under the laws of the State of California. It is
agreed that exclusive jurisdiction and venue for any legal action between the
parties arising out of this Lease shall be in the Superior Court for Marin
County, California, or, in cases where Federal diversity jurisdiction is
available, in the United States District Court for the Northern District of
California. LESSEE, TO THE EXTENT IT MAY LAWFULLY DO SO, HEREBY WAIVES ITS RIGHT
TO TRIAL BY JURY IN ANY ACTION BROUGHT ON OR WITH RESPECT TO THIS LEASE, ANY
SCHEDULE, OR ANY AGREEMENT EXECUTED IN CONNECTION HEREWITH.
30. NATURE OF TRANSACTION. Lessor makes no representation
whatsoever, express or implied, concerning the legal character of the
transaction evidenced hereby, for tax or any other purpose.
31. SECURITY INTEREST. (a) One executed copy of the Lease will be
marked "Original" and all other counterparts will be duplicates. To the extent,
if any, that this Lease constitutes chattel paper (as such term is defined in
the Uniform Commercial Code as in effect in any applicable jurisdiction) no
security interest in the lease may be created in any documents other than the
"Original." (b) There shall be only-one original of each Schedule and it shall
be marked "Original," and all other counterparts will be duplicates. To the
extent, if any, that any Schedule(s) to this Lease constitutes chattel paper (or
as such term is defined in the Uniform Commercial Code as in effect in any
applicable jurisdiction) no security interest in any Schedule(s) may be created
in any documents other than the "Original."
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32. SUSPENSION OF OBLIGATIONS. The obligations of Lessor hereunder
will be suspended to the extent that it is hindered or prevented from complying
therewith because of labor disturbances, including but not limited to strikes
and lockouts, acts of God, fires, storms, accidents, failure of the manufacturer
to deliver any item of Equipment, governmental regulations or interference, or
any cause whatsoever not within the sole and exclusive control of Lessor.
33. SOFTWARE. For the term of this Lease, and so long as no Event
of Default has occurred and is continuing, Lessor hereby assigns to Lessee all
of Lessor's rights under any License Agreement executed by Lessor in connection
with the Equipment (except for any right of Lessor to be reimbursed for the
License Fee). Lessee agrees to be bound by the provisions of any such License
Agreement and to perform all obligations of Lessor (except Lessor's payment
obligations) thereunder. Lessee acknowledges that all of Lessee's obligations
under the Lease with respect to the Equipment will apply equally to the
software, including but not limited to Lessee's obligation to pay rent to
Lessor.
34. STOCK WARRANT. Lessee agrees that it will issue to Lessor upon
execution of this Lease a Warrant in the form of Warrant Agreement attached
hereto as Exhibit D. Lessee and Lessor agree that the value of the Warrant
hereunder is ten dollars ($10.00).
35. COMMITMENT FEE. Lessee has paid to Lessor a commitment fee
("Fee") of $10,000.00. The Fee shall be applied by Lessor first to reimburse
Lessor for all out-of-pocket UCC search costs, inspections and labeling which
costs shall not exceed $1,000.00 incurred by Lessor, and then proportionally to
the first month's rent for each Schedule hereunder in the proportion that the
purchase price of the Equipment leased pursuant to the Schedule bears to
Lessor's entire commitment. However, the portion of the Fee which is not applied
to rental shall be non-refundable except if Lessor defaults in its obligations
pursuant to Section 3.
36. FINANCE LEASE. The parties agree that this lease is a "Finance
Lease" as defined by section 10-103(a)(7) of the California Commercial Code
(Cal.Com.C.). Lessee acknowledges either (a) that Lessee has reviewed and
approved any written Supply Contract (as defined by Cal.Com.C. Section
10-103(a)(25)) covering Equipment purchased from the "Supplier" (as defined by
Cal.Com.C. Section 10-103(a)(24)) thereof for lease to Lessee or (b) that Lessor
has informed or advised Lessee, in writing, either previously or by this Lease
of the following: (i) the identity of the Supplier; (ii) that the Lessee may
have rights under the Supply Contract; and (iii) that the Lessee may contact the
Supplier for a description of any such rights Lessee may have under the Supply
Contract. Lessee hereby waives any rights and remedies Lessee may have under
Cal.Com.C. Sections 10-508 through 522.
37. PURCHASE OR RENEWAL REQUIREMENT FOR ALL SCHEDULES TO MASTER
EQUIPMENT LEASE. At the expiration of the Initial Term for Schedule No. 1, and
notwithstanding anything to the contrary in the Lease, upon 90 days prior
written notice to Lessor, Lessee shall either:
11
No. 1
Purchase AS-IS, WHERE-IS all, but not less than all, of the Equipment
covered under all Schedules to this Lease at the expiration of the
Initial Term for each such Schedule for an amount equal to the
Equipment's Fair Market Value, but in no event for an amount less than
10 percent (10%) or more than twenty percent (20%) of the Equipment's
original purchase price, whereupon Lessor shall issue to Lessee a Xxxx
of Sale for the Equipment transferring it to Lessee without any
representation or warranty whatsoever, or
No. 2
Extend the Initial Term of all Schedules to this Lease for an
additional twelve (12) months ("Renewal Term") commencing with the end
of the Initial Term of each Schedule at the same monthly rate as under
the Lease. Upon expiration of each Renewal Term, Lessor shall issue to
Lessee a Xxxx of Sale for the Equipment under the applicable Schedule
transferring it to Lessee without any representation or warranty
whatsoever.
In the event Lessee does not provide 90 days prior written notice as specified
above, Lessee shall be deemed to have selected No. 2 above for all Schedules to
the Lease.
Lessee shall be responsible for all applicable taxes in connection with any
purchase of Equipment by Lessee.
IN WITNESS WHEREOF, the parties hereto have executed this Lease.
PHOENIX LEASING INCORPORATED ATHEROGENICS, INC.
By: X. X. Xxxxxx By: Xxxxxxx X. Xxxxxxx
----------------------------- -----------------------------------
Title: Title: Executive Vice President
-------------------------- --------------------------------
Headquarters Location:
0000 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
County of Gwinnet
