EXHIBIT 10.65
GLOBAL MASTER RENTAL AGREEMENT
GLOBAL MASTER RENTAL AGREEMENT (the "Agreement") dated May 4, 2000 by and
between COMDISCO, INC., acting on behalf of itself and its Affiliates
("Comdisco"), and SEQUENOM, INC., acting on behalf of itself and its Affiliates
("Customer").
Comdisco and its Affiliates are engaged in the rental of equipment in various
countries where Customer and its Affiliates may wish to rent such equipment.
To facilitate the transacting of rental operations between Comdisco or an
Affiliate of Comdisco and Customer or an Affiliate of the Customer on an ongoing
basis, Comdisco and the Customer wish to enter into the present Agreement which,
together with the Schedule under which each individual rental operation is
concluded, will establish the terms and conditions applicable to such rental
operation.
IN CONSIDERATION of the mutual agreements described below, the parties agree as
follows (all capitalized terms not otherwise defined in the body of this
Agreement are defined in Section 15.12):
1. Property Rented, Customer Liability, Conflict.
Lessor rents to Lessee all of the Equipment described on each Schedule,
subject to the terms and conditions of this Agreement and such Schedule. Each
such Schedule will be governed by all of the terms and conditions of this
Agreement and such additional terms and conditions as may be set forth in such
Schedule. Customer will, without notice, be jointly and severally liable for
the due performance of the obligations of its Affiliates under all Schedules
executed hereunder, including, without limitation, all terms and conditions
negotiated by its Affiliates. In the event of a conflict, the terms of a
Schedule prevail over this Agreement.
The parties agree that each local transaction will only be validly
concluded if the relevant Schedule is executed by authorized signatories of
Lessor and Lessee involved in such transaction, and that any such Schedule may
also be supplemented or amended by special terms or conditions agreed upon by
Lessor or Lessee for the particular transaction.
2. Term.
On the Commencement Date Lessee will be deemed to accept the Equipment,
will be bound to its Rent obligations for each item of Equipment and the term of
a Schedule will begin and continue through the Initial Term and thereafter until
terminated by either party upon prior written notice received during the Notice
Period. No termination may be effective prior to the expiration of the Initial
Term.
3. Rent and Payments.
Rent is due and payable in advance, in immediately available funds, in
the currency indicated on the Schedule, on the first day of each Rent Interval
to the payee and at the location specified in Lessor's invoice. The Interim Rent
is due and payable when invoiced. If any payment is not made when due, Lessee
will owe and pay interest at the Overdue Rate.
4. Selection and Warranty and Disclaimer of Warranties.
4.1 Selection. Lessee acknowledges that it has selected the Equipment
and disclaims any reliance upon statements made by the Lessor.
4.2 Warranty and Disclaimer of Warranties. Lessor warrants to Lessee
that, so long as Lessee is not in default, Lessor will not disturb Lessee's
quiet and peaceful possession, and unrestricted use of the Equipment. To the
extent permitted by the manufacturer, Lessor assigns to Lessee during the term
of the Schedule any manufacturer's warranties for the Equipment. LESSOR MAKES NO
OTHER WARRANTY, EXPRESS OR IMPLIED AS TO ANY MATTER WHATSOEVER, INCLUDING,
WITHOUT LIMITATION, THE MERCHANTABILITY OF THE EQUIPMENT OR ITS FITNESS FOR A
PARTICULAR PURPOSE. Lessor is not responsible for any liability, claim, loss,
damage or expense of any kind (including strict liability in tort) caused by the
Equipment except for any loss or damage caused by the negligent acts of Lessor.
In no event is Lessor responsible for special, incidental or consequential
damages.
5. Title and Assignment.
5.1 Title. Lessee holds the Equipment subject and subordinate to the
rights of the Owner, Lessor, any Assignee and any Secured Party. Lessee
authorizes Lessor, as Lessee's agent to the extent relevant, to prepare, execute
and file in Lessee's name precautionary financing statements if applicable in
the relevant jurisdiction showing the interest of the Owner, Lessor, and any
Assignee or Secured Party in the Equipment, and
to insert serial numbers in Schedules as appropriate. Except as provided in
Sections 5.2 and 7.2, Lessee will, at its expense, keep the Equipment free and
clear from any liens or encumbrances of any kind (except any caused by Lessor)
and will indemnify and hold Lessor, Owner, any Assignee and Secured Party
harmless from and against any loss caused by Lessee's failure to do so.
5.2 Relocation. Upon prior written notice, Lessee may relocate Equipment
to any location within the country set forth in the respective Schedule provided
all additional costs arising from such relocation (including but not limited to
any administrative fees, additional duties, taxes and insurance coverage) are
reconciled and promptly paid by Lessee. No relocation will relieve Lessee from
any of its obligations under this Agreement and the relevant Schedule.
5.3 Assignment by Lessor. The terms and conditions of each Schedule have
been fixed by Lessor in order to permit Lessor to sell and/or assign or transfer
its interest or grant a security interest in each Schedule and/or the Equipment
to a Secured Party or Assignee. In that event the term Lessor will include the
Assignee and any Secured Party. However, any assignment, sale, or other transfer
by Lessor will not relieve Lessor of its obligations to Lessee and will not
materially change Lessee's duties or materially increase the burdens or risks
imposed on Lessee. The Lessee consents to and will acknowledge such assignments
in a written notice given to Lessee. Lessee also agrees that:
(a) The Secured Party will be entitled to exercise all of Lessor's
rights, but will not be obligated to perform any of the obligations of
Lessor. The Secured Party will not disturb Lessee's quiet and peaceful
possession and unrestricted use of the Equipment so long as Lessee is
not in default and the Secured Party continues to receive all Rent
payable under the Schedule; and
(b) Lessee will pay all Rent and all other amounts payable to the
Secured Party, despite any defense or claim which it has against Lessor.
Lessee reserves its right to have recourse directly against Lessor for
any defense or claim; and
(c) Subject to and without impairment of Lessee's leasehold rights in
the Equipment, Lessee holds the Equipment for the Secured Party to the
extent of the Secured Party's rights in that Equipment.
5.4 Assignment of Liability. Customer hereby agrees that its
representations and obligations under this Agreement may be assigned by
Comdisco, without notice, to Lessor under any Schedule issued hereunder, and
further assigned by Lessor without notice to a Secured Party or Assignee.
6. Net Obligation and Taxes and Fees.
6.1 Net Obligation. Each Schedule constitutes the Lessee's absolute and
unconditional obligation to pay Rent and is not subject to any abatement,
reduction, set-off, defense, counterclaim, interruption, deferment or recoupment
for any reason whatsoever. Subject to Section 6.2, if Lessee is required by law
or regulation to make any deduction or withholding, Lessee shall pay to Lessor
an amount sufficient to assure that Lessor receives a net amount equal to the
Rent.
6.2 Taxes and Fees. Lessee will pay when due or reimburse Lessor for all
taxes, duties or any other charges (together with any related interest or
penalties not arising from the negligence of Lessor) accrued for or arising out
of the term of each Schedule against Lessor, Lessee or the Equipment by any
governmental authority (except only taxes on the net income of Lessor)
including, but not limited to, any withholding tax on income, value-added,
turnover, stamp or recouping tax ("Additional Costs"). If required, Lessor will
file any property tax returns for the Equipment and pay all property taxes due.
Lessee will reimburse Lessor for property taxes within thirty (30) days of
receipt of an invoice.
Lessee ensures that Lessor will receive a net amount equal to the full
amount of the scheduled Rent (at the times and in the amounts as set forth on
the Schedule) which it expects to receive without regard to any such amounts
being subject to Additional Costs.
Lessor shall cooperate with Lessee in obtaining any clearances which
Lessee shall seek to obtain which will minimize Lessee's burden in regard to
Additional Costs.
7. Care, Use and Maintenance, Attachments and Reconfigurations and Inspection by
Lessor.
7.1 Care, Use and Maintenance. Lessee will maintain the Equipment in
good operating order and appearance, protect the Equipment from deterioration,
other than normal wear and tear, and will not use the Equipment for any purpose
other than that for which it was designed. If commercially available, Lessee
will maintain in force a standard maintenance contract with the manufacturer of
the Equipment, or another party acceptable to Lessor, and upon request will
provide Lessor with a complete copy of that contract. With Lessor's prior
written consent, Lessee may have the Equipment maintained by a party other than
the manufacturer. Lessee agrees to pay any costs necessary for the manufacturer
to bring the Equipment to the equipment specifications as of the Commencement
Date, and to re-certify the Equipment as eligible for manufacturer's maintenance
by termination of the applicable Schedule whether by expiration or otherwise.
Lessee agrees to accept and install all routine engineering updates made
available by the manufacturer so as to insure the Equipment is at the current
release. The rental term will continue upon the same terms and conditions until
recertification has been obtained.
7.2 Attachments and Reconfigurations. Upon Lessor's prior written
consent, Lessee may reconfigure and install Attachments on the Equipment. In the
event of such a Reconfiguration or Attachment, Lessee shall, upon the return of
the Equipment, at its expense, restore the Equipment to the original
configuration specified on the Schedule in accordance with the manufacturer's
specifications and in the same operating order, repair and appearance as when
installed (normal wear and tear excluded). If any parts are removed from the
Equipment during the Reconfiguration or Attachment, the restoration will
include, at Lessee's option, the installation of either the original removed
parts or Like Parts. Alternatively, with Lessor's prior written consent which
will not be unreasonably withheld, Lessee may return the Equipment with any
Attachment or upgrade.
7.3 Inspection by Lessor. Upon request, Lessee, during reasonable
business hours and subject to Lessee's security requirements, will make the
Equipment and its related log and maintenance records available to Lessor for
inspection.
8. Representations and Warranties of Lessee.
Customer and Lessee represent and warrant that for this Agreement and
each Schedule:
(a) The execution, delivery and performance of the Lessee have been duly
authorized by all necessary corporate action;
(b) The individual executing was duly authorized to do so;
(c) This Agreement and each Schedule constitute legal, valid and binding
agreements of the Lessee enforceable in accordance with their terms; and
(d) The Equipment is personal property and when subjected to use by the
Lessee will not be or become fixtures under applicable law.
9. Delivery and Return of Equipment.
Lessee assumes the full expense of transportation of the Equipment to
its initial location, installation, deinstallation, and return to a location
(including without limitation the expense of in-transit insurance) all pursuant
to Lessor's instructions and manufacturer's specifications. Regarding
deinstallation, Lessee will assure that the Equipment is deinstalled by the
manufacturer in accordance with the manufacturer's recommended procedures and
any Environmental Law, and returned with a Verification of Decontamination in
the same operating order, repair, condition and appearance as when originally
installed (less normal wear and tear and depreciation) meeting all original
equipment manufacturer's specifications for continued manufacturer's
maintenance, and accompanied by all associated documents, manuals, maintenance
records for the duration of the Initial Term or any extension thereof, spare
parts and accessories. In connection with deinstallation, any Contaminant
removed from the Equipment will be removed and transported by a licensed waste
removal transporter. During the period subsequent to receipt of a notice under
Section 2, Lessor may demonstrate the Equipment's operation in place and Lessee
will supply any of its personnel as may reasonably be required to assist in the
demonstrations. With respect to Equipment located outside the continental United
States, Lessee agrees that if returned to United States, the Equipment will meet
all United States engineering specifications, including but not limited to
United States power standards.
10. Labeling.
Upon request, Lessee will xxxx the Equipment indicating Lessor's
interest. Lessee will keep all Equipment free from any other marking or labeling
which might be interpreted as a claim of ownership.
11. Indemnity.
Lessee will indemnify and hold Lessor, any Assignee and any Secured
Party harmless from and against any and all claims, costs, expenses, damages and
liabilities, including reasonable attorneys' fees, arising out of the ownership
(for strict liability in tort only), selection, possession, renting, operation,
control, use, maintenance, delivery, return or other disposition of the
Equipment. However, Lessee is not responsible to a party indemnified hereunder
for any claims, costs, expenses, damages and liabilities occasioned by the
negligent acts of such indemnified party. Lessee agrees to carry bodily injury
and property damage liability insurance during the term of the Agreement with
insurance providers acceptable to Lessor, in amounts and against risks
customarily insured against by the Lessee on equipment owned by it. Any amounts
received by Lessor under that insurance will be credited against Lessee's
obligations under this Section.
12. Risk of Loss.
Effective upon delivery and until the Equipment is returned, Lessee
relieves Lessor of responsibility for all risks of physical damage to or loss or
destruction of the Equipment. Lessee will carry casualty insurance for each
item of Equipment in an amount not less than the Casualty Value. All policies
for such insurance must be with insurance providers acceptable to Lessor and
will name the Lessor and any Secured Party as additional insured and as loss
payee, and will provide for at least thirty (30) days prior written notice to
the Lessor of cancellation or expiration. The Lessee will furnish appropriate
evidence of such insurance. Lessee shall promptly repair any damaged item of
Equipment unless such Equipment has suffered a Casualty Loss. Within fifteen
(15) days of a Casualty Loss, Lessee will provide written notice of that loss to
Lessor and Lessee will, at Lessor's option, either (a) replace the item of
Equipment with Like Equipment and marketable title to the Like Equipment will
automatically vest in Lessor, or (b) pay the Casualty Value and after that
payment and the payment of all other amounts due and owing, Lessee's obligation
to pay further Rents for the item of Equipment will cease.
13. Default, Remedies and Mitigation.
13.1 Default. The occurrence of any one or more of the following Events
of Default by Customer or by Lessee constitutes a default under this Agreement
or any Schedule entered into hereunder.
(a) Failure to pay Rent or other amounts payable by Customer or Lessee
when due if that failure continues for ten (10) days after written
notice; or
(b) Failure to perform any other term or condition of this Agreement or
the Schedule or the material inaccuracy of any representation or
warranty made by Customer or Lessee in this Agreement or the Schedule or
in any document or certificate furnished to the Lessor hereunder if that
failure or inaccuracy continues for fifteen (15) days after written
notice; or
(c) An assignment for the benefit of its creditors, the failure to pay
its debts when due, the insolvency of Lessee, the filing by or the
filing against Customer or Lessee of any petition under any bankruptcy
or insolvency law or for the appointment of a trustee or other officer
with similar powers, the adjudication of Customer or Lessee as
insolvent, the liquidation of Customer or Lessee, or the taking of any
action for the purpose of the foregoing; or
13.2 Remedies. Upon the occurrence of any of the above Events of
Default, Lessor, at its option, may, as to Customer or Lessee:
(a) enforce performance of the provisions of the applicable Schedule by
appropriate court action in law or in equity;
(b) recover any damages and or expenses, including Default Costs;
(c) with notice and demand, recover all sums due and accelerate and
recover the present value of the remaining payments stream of all Rent
due under the defaulted Schedule (discounted at the same rate of
interest at which such defaulted Schedule was discounted with a Secured
Party plus any prepayment fees charged to Lessor by the Secured Party
or, if there is no Secured Party, then discounted at the then prevailing
interbank offering rate for the currency specified in the Schedule less
2%) together with all Rent and other amounts currently due as liquidated
damages and not as a penalty;
(d) with notice and process of law and in compliance with Lessee's
security requirements, Lessor may enter on Lessee's premises to remove
and repossess the Equipment without being liable to Lessee for damages
due to the repossession, except those resulting from Lessor's, its
assignees', agents' or representatives' negligence; and
(e) pursue any other remedy permitted by law or equity.
The above remedies, in Lessor's discretion and to the extent permitted
by law, are cumulative and may be exercised successively or concurrently.
13.3 Mitigation. Upon return of the Equipment pursuant to the terms of
Section 13.2, Lessor will use its best efforts in accordance with its normal
business procedures (and without obligation to give any priority to such
Equipment) to mitigate Lessor's damages as described below. EXCEPT AS SET FORTH
IN THIS SECTION, LESSEE HEREBY WAIVES ANY RIGHTS NOW OR HEREAFTER CONFERRED BY
STATUTE OR OTHERWISE WHICH MAY REQUIRE LESSOR TO MITIGATE ITS DAMAGES OR MODIFY
ANY OF LESSOR'S RIGHTS OR REMEDIES STATED HEREIN. Lessor may sell, rents or
otherwise dispose of all or any part of the Equipment at a public or private
sale for cash or credit with the privilege of purchasing the Equipment. The
proceeds from any sale, rental or other disposition of the Equipment are defined
as either:
(a) if sold or otherwise disposed of, the cash proceeds less the Fair
Market Value of the Equipment at the expiration of the Initial Term less
the Default Costs; or
(b) if rented, the present value (discounted at three points over the
prevailing interbank offering rate at the time of the mitigation) of the
Rent for a term not to exceed the Initial Term, less the Default Costs.
Any proceeds will be applied against liquidated damages and any other
sums due to Lessor from Lessee. However, Customer and Lessee are liable to
Lessor for, and Lessor may recover, the amount by which the proceeds are less
than the liquidated damages and other sums due to Lessor from Lessee.
14. Environmental Conditions.
14.1 Indemnification. Lessee shall fully and promptly pay, perform,
discharge, defend, indemnify and hold harmless Comdisco, Lessor and its
Affiliates, successors and assigns, directors, officers, employees and agents
from and against any Environmental Claim or Environmental Loss.
14.2 Lessee Cooperation. In the event of an Environmental Claim, Lessee
shall, upon request, immediately provide Lessor with copies of all
correspondence reports, notices, orders, findings, declarations and other
materials pertinent to the Lessee's compliance with and requirements of any
Environmental Law.
14.3 Lessee Insurance. The Lessee shall name Lessor as an additional
insured on its environmental liability insurance policy, if carried.
15. Additional Provisions.
15.1 Entire Agreement. This Agreement and associated Schedules supersede
all other oral or written agreements or understandings between the parties
concerning the Equipment including, for example, purchase orders. ANY AMENDMENT
OF THIS Agreement OR A SCHEDULE, MAY ONLY BE ACCOMPLISHED BY A WRITING SIGNED BY
THE PARTIES.
15.2 No Waiver. No action taken by Lessor or Lessee shall be deemed to
constitute a waiver of compliance with any representation, warranty or covenant
contained in this Agreement or a Schedule. The waiver by Lessor or Lessee of a
breach of any provision of this Agreement or a Schedule will not operate or be
construed as a waiver of any subsequent breach.
15.3 Binding Nature. Each Schedule is binding upon, and inures to the
benefit of Lessor and its assigns. LESSEE MAY NOT ASSIGN ITS RIGHTS OR
OBLIGATIONS.
15.4 Survival of Obligations. All agreements, obligations including, but
not limited to those arising under Sections 6.2 and 11, representations and
warranties contained in this Agreement, any Schedule or in any document
delivered in connection with those agreements are for the benefit of Lessor and
any Assignee or Secured Party and survive the execution, delivery, expiration or
termination of this Agreement.
15.5 Notices. Any notice, request or other communication to either party
by the other will be given in writing and deemed received upon the earlier of
actual receipt or three days after mailing if mailed postage prepaid by airmail
to Lessor (to the attention of "Agreement Administrator") or Lessee, at the
address set out in the Schedule or, two days after it is sent by courier or
facsimile transmission if receipt is verified by the receiving party.
15.6 Applicable Law. This Agreement shall be governed and construed for
all purposes in accordance with the law agreed upon in the applicable Schedule
by Lessor and Lessee. Comdisco and Customer hereby consent to such law. Customer
hereby consents to the jurisdiction of the court agreed upon in the applicable
Schedule.
15.7 Severability. If any one or more of the provisions of this
Agreement or any Schedule is for any reason held invalid, illegal or
unenforceable, the remaining provisions of this Agreement and any such Schedule
will be unimpaired, and the invalid, illegal or unenforceable provision replaced
by a mutually acceptable valid, legal and enforceable provision that is closest
to the original intention of the parties.
15.8 Counterparts. This Agreement and any Schedule may be executed in
any number of counterparts, each of which will be deemed an original, but all
such counterparts together constitute one and the same instrument. If Lessor
grants a security interest in all or any part of a Schedule, the Equipment or
sums payable thereunder, only that counterpart Schedule marked "Secured Party's
Original" can transfer Lessor's rights and all other counterparts will be marked
"Duplicate".
15.9 Licensed Products. Lessee shall obtain no title to Licensed
Products which will at all times remain the property of the owner of the
Licensed Products. A license from the owner may be required and it is Lessee's
responsibility to obtain any required license before the use of the Licensed
Products. Lessee agrees to treat the Licensed Products as confidential
information of the owner, to observe all copyright restrictions, and not to
reproduce or sell the Licensed Products.
15.10 Additional Documents. Customer and Lessee will, upon execution of
this Agreement and as may be requested thereafter, provide Lessor and/or
Comdisco with a secretary's certificate of incumbency and authority and any
other documents reasonably requested by Lessor and/or Comdisco. Lessee will
furnish, upon request, quarterly and audited financial statements for the most
recent period.
15.11 Electronic Communications. Each of the parties may communicate
with the other by electronic means under mutually agreeable terms.
15.12 Definitions.
Adverse Environmental Condition - means (i) the existence or the continuation of
the existence, of an Environmental Emission (including, without limitation, a
sudden or non-sudden accidental or non-accidental Environmental Emission), of or
exposure to, any substance, chemical, material, pollutant, contaminant, odor or
audible noise or other release or emission in, into or onto the environment
(including without limitation, the air, ground, water or any surface) at, in,
by, from or related to any Equipment, (ii) the environmental aspect of the
transportation, storage, treatment or disposal of materials in connection with
the operation of any Equipment, or (iii) the violation, or alleged violation of
any statutes, ordinances, orders, rules, regulations, permits or licenses of, by
or from any governmental authority, agency or court relating to environmental
matters connected with any Equipment.
Affiliate - means as to Comdisco or Customer those enterprises which Comdisco or
Customer own or otherwise control directly or indirectly including, without
limitation, those listed on Exhibits A and B.
Assignee - means an entity to whom Lessor has sold or assigned its rights as
Owner and Lessor of Equipment.
Attachment - means any accessory, equipment or device and the installation
thereof that does not impair the original function or use of the Equipment and
is capable of being removed without causing material damage to the Equipment and
is not an accession to the Equipment.
Casualty Loss - means the irreparable loss or destruction of Equipment.
Casualty Value - means an amount equal to the present value of the aggregate
Rent remaining for the balance of the Initial Term, plus the present value of
the Fair Market Value (determined as of the expiration of the Initial Term) of
Like Equipment discounted at the lesser of (x) the then prevailing interbank
offering rate less 2% or (y) the Secured Party interest rate, if any.
Commencement Certificate - means the Lessor provided certificate which must be
signed by Lessee within ten days of the Commencement Date as requested by
Lessor.
Commencement Date - is defined in each Schedule.
Contaminant - means those substances which are regulated by or from the basis of
liability under any Environmental Law, including without limitation, asbestos,
polychlorinated biphenyls ("PCB"), and radioactive substances, or other material
or substance which has in the past or could in the future constitute a healthy,
safety or environmental hazard to any person, property or natural resources.
Customer - means the enterprise other than Comdisco executing this Agreement on
behalf of itself and its Affiliates.
Default Costs - means reasonable attorney's fees and remarketing costs resulting
from a Lessee default or Lessor's enforcement of its remedies.
Environmental Claim - means any accusation, allegation, notice of violation,
claim, demand, abatement or other order or direction (conditional or otherwise)
by a governmental authority or any Person for personal injury (including
sickness, disease, or death), tangible or intangible property damage, damage to
the environment or natural resources, nuisance, pollution, contamination or
other adverse effects on the environment, or for fines, penalties or
restrictions, resulting from or based upon any Adverse Environmental Condition.
Environmental Emission - means any actual or threatened release, spill,
omission, leaking, pumping, injection, deposition, disposal, discharge,
dispersal, leaching or migration into the indoor or outdoor environment, or into
or out of any of the Equipment including, without limitation, the movement of
any Contaminant or other substance through or in the air, soil, surface water,
groundwater or property.
Environmental Law - means any federal, foreign, state or local law, rule or
regulation pertaining to the protection of the environment applicable to the
Equipment in the country of installation.
Environmental Loss - means any loss, cost, damage, liability, deficiency, fine,
penalty or expense (including, without limitation, reasonable attorney's fees,
engineering and other professional or expert fees), investigation, removal,
cleanup and remedial costs (voluntarily or involuntarily incurred) and damages
to, loss of the use of or decrease in value of the Equipment arising out of or
related to any Adverse Environmental Condition.
Equipment - means the property described on a Schedule and any replacement for
that property required or permitted by this Agreement or a Schedule but not
including any Attachment.
Event of Default - means the events described in Subsection 13.1.
Fair Market Value - means the aggregate amount which would be obtainable in an
arm's-length transaction between an informed and willing buyer/user purchasing
the Equipment in place for its originally intended use and an informed and
willing seller under no compulsion to sell.
Initial Term - means the period of time beginning on the first day of the first
full Rent Interval following the Commencement Date for all items of Equipment
and continuing for the number of Rent Intervals indicated on a Schedule.
Installation Date - means the day on which Equipment is installed and accepted
by Lessee in accordance with Lessee's or Lessor's equipment purchase
documentation.
Interbank Offering Rates - means short term rates used within a particular
country by banks lending money amongst themselves.
Interim Rent - means the pro-rata portion of Rent due for the period from the
Commencement Date through but not including the first day of the first full Rent
Interval included in the Initial Term.
Lessee - means with respect to any Schedule, the enterprise executing the
Schedule as Lessee, either Customer or an Affiliate of Customer.
Lessor - means with respect to any Schedule, the enterprise executing the
Schedule as Lessor, either Comdisco, Inc. or an Affiliate of Comdisco, Inc.
Licensed Products - means any software or other licensed products attached to
the Equipment.
Like Equipment - means replacement Equipment which is lien free and of the same
model, type, configuration and manufacture as Equipment.
Like Part - means a substituted part which is lien free and of the same
manufacturer and part number as the removed part, and which when installed on
the Equipment will be eligible for maintenance coverage with the manufacturer of
the Equipment.
Notice Period - means the time period described in a Schedule during which
Lessee may give Lessor notice of the termination of the term of that Schedule.
Overdue Rate - means the lesser of 3% per year above the then prevailing
interbank offering rate or the maximum rate permitted by the law of the country
where the Equipment is located.
Owner - means the legal owner of the Equipment.
Person - means any individual, partnership, corporation, trust, unincorporated
organization, government or department or agency thereof and any other entity.
Reconfiguration - means any change to Equipment that would upgrade or downgrade
the performance capabilities of the Equipment in any way.
Rent - means the rent, including Interim Rent, Lessee will pay for each item of
Equipment expressed in a Schedule either as a specific amount or an amount equal
to the amount which Lessor pays for an item of Equipment multiplied by a rental
rate factor plus all other amounts due to Lessor under this Agreement or a
Schedule.
Rent Interval - means a full calendar month or quarter as indicated on a
Schedule.
Schedule - means an Equipment Schedule, substantially in the form attached to
Exhibit C hereto or as may be added by agreement of Comdisco and Customer from
time to time, which incorporates all of the terms and conditions of this
Agreement and, for purposes of Section 15.8, its associated Commencement
Certificate(s).
Secured Party - means an entity to whom Lessor has granted a security interest
in a Schedule and related Equipment for the purpose of securing a loan.
Verification of Decontamination - means a letter from the party performing the
decontamination, stating that such party is licensed by OSHA or the appropriate
officials and that the actual decontamination was completed both in accordance
with manufacturer's specifications and procedures, and any governmental permit
required for the operation of the equipment and the disposal of any hazardous
material in connection therewith.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on or
as of the day and year first above written.
SEQUENOM, INC. COMDISCO, INC.,
as Customer as Lessor
By: /s/ XXXXXXX XXXXXXXX By: /s/ XXXX XXXXXX
---------------------------- ----------------------------
Title: CFO Title: AVP
------------------------- -------------------------
Rev.5/99
GRMA:CEG
EXHIBIT A
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To the Global Master Rental Agreement dated as of May 4, 2000, between
Comdisco, Inc. ("Comdisco") and Sequenom, Inc. ("Customer")
AFFILIATES OF COMDISCO, INC.
Comdisco Asia Pte Ltd Comdisco Ireland Limited
0, Xxxxxxx Xxxxxxxxx 00 Xxxxxxx Xxxxxx
#00-00, Xxxxxx Xxxxx 0 Xxxxxx 0, Xxxxxxx
Xxxxxxxxx 000000
Comdisco Japan, a branch of Comdisco
Comdisco Australia Pty Ltd GmbH & Co. Leasing and Finance KG
(CAN 002 997-453) Nomura Fudosan Xxxxxxxx 00X
Xxxxx 00, 000 Xxxxxxx Xxxxxxx 0-0-00 Xxxxxx-Xxxxx
Xxxxx Xxxxxx, XXX 0000, Xxxxxxxxx J-Chuo-Ku, Osaka 541-0052
(Japan)
Comdisco de Mexico, S.A. de C.V.
Comdisco Canada Ltd. X/x Xxxxxxx & Xxxxx, Xxxxx, Xxxx, Xxxxxx, Xxxxx, X.X.
Royal Bank Plaza, North Tower Rio Xxxxxx No. 7
000 Xxx Xxxxxx, Xxxxx 0000 Col. Xxxxxxxxxx
X.X. Xxx 000 00000 Xxxxxx, D.F.
XXX-Xxxxxxx, Xxxxxxx X0X 0X0 (Mexico)
(Canada)
Comdisco Nederland X.X.
Xxxxxxxxxxxx 00, Postbus 1681
NL-3606 AK Maarssen
(The Netherlands)
Comdisco Global Inc.
c/o Xxxxxx Xxxxxx & Company Comdisco New Zealand
X.X. Xxx 000 Xxxxx 00, ASB Bank Centre
Xxxxxxxx Square Building Cnr Xxxxxx and Wellesley Streets
Grand Cayman, British West Indies Auckland, New Zealand
Comdisco Trade, Inc. (Taiwan Branch)
14F-06 Empire Commercial Building
Xx. 000 Xxxxx-Xx Xxxx Xxxxxxx 0
Xxxxxxx, Xxxxxx
(Republic of China)
EXHIBIT B
---------
To the Global Master Rental Agreement dated as of May 4, 2000, between
Comdisco, Inc. ("Comdisco") and Sequenom, Inc. ("Customer")
AFFILIATES OF CUSTOMER
Sequenom GmbH
EXHIBIT C
---------
To the Global Master Rental Agreement dated as of May 4, 2000, between
Comdisco, Inc. ("Comdisco") and Sequenom, Inc. ("Customer")
Effective as of the date of the Agreement, Comdisco and Customer hereby
agree, pursuant to Subsection 1.2, "Equipment Schedules" of the Agreement
-------------------
that Equipment Schedules substantially in the forms attached hereto and
identified by country name shall be used in the countries listed below which
match the country name on the attached Equipment Schedules.
Australia Mexico
**Austria Netherlands
**Belgium New Zealand
Canada **Norway
**Czech Republic Puerto Rico
**Denmark Singapore
**Finland **Spain
**France **Sweden
**Germany **Switzerland
Hong Kong Taiwan
**Ireland ** United Kingdom
**Italy United States
Japan
Initialled: Comdisco ______________
Customer ______________
**Leases will be written with Comdisco Nederland B.V., as Lessor
ADDENDUM NO. 1 DATED AS OF MAY 4, 2000
TO THE GLOBAL MASTER RENTAL AGREEMENT
DATED AS OF MAY 4, 2000 (THE "AGREEMENT")
BETWEEN SEQUENOM, INC. ("CUSTOMER")
AND COMDISCO LABORATORY AND SCIENTIFIC GROUP, A DIVISION OF
COMDISCO, INC. ("LESSOR")
The terms and conditions of this Addendum shall be incorporated into the
Agreement and supersedes the Agreement to the extent expressly provided herein.
Each capitalized terms used herein and not otherwise defined shall have the same
meaning attributed to it in the Agreement.
A. The terms and conditions of the following sections of the Agreement are
hereby modified:
1. SECTION 13.3, MITIGATION
------------------------
Revise the second sentence to read as follows: "EXCEPT AS SET FORTH IN
THIS SECTION, EACH PARTY HEREBY WAIVES ANY RIGHTS NOW OR HEREAFTER
CONFERRED BY STATUTE OR OTHERWISE WHICH MAY REQUIRE LESSOR TO MITIGATE
ITS DAMAGES ORMODIFY ANY OF LESSOR'S OR LESSEE'S RIGHTS OR REMEDIES
STATED HEREIN."
2. SECTION 15.12, DEFINITIONS
--------------------------
Under the definition of "Contaminant", line 2, delete the word
"from" and insert the word "form".
IN WITNESS WHEREOF, the parties have caused this Addendum to be executed by
their authorized representatives as of the date and year set forth below.
ACCEPTED AND AGREED TO:
Sequenom, Inc. Comdisco,
Inc.
By: /s/ XXXXXXX XXXXXXXX By: /s/ XXXX XXXXXX
-------------------------------- -------------------------------
Printed Name: Xxxxxxx Xxxxxxxx Printed Name: Xxxx Xxxxxx
--------------------- --------------------
Title: CFO Title: AVP
---------------------------- ----------------------------
Date: Date: 6/2/2000
------------------------------ ----------------------------
AMENDMENT NO. 2
TO
GLOBAL MASTER RENTAL AGREEMENT
DATED MAY 4, 2000 (the "Lease")
BY AND BETWEEN
SEQUENOM, INC. ("Lessee")
AND
COMDISCO LABORATORY AND SCIENTIFIC GROUP,
A DIVISION OF COMDISCO, INC. ("Lessor")
WHEREAS, Lessor and Lessee desire to enter into the Lease; and
WHEREAS, Lessor and Lessee desire to amend certain provisions of the Lease as
hereafter provided; and
WHEREAS, the Amendment shall be deemed to have been entered into
contemporaneously with and integrated into the terms and conditions of the
Lease.
NOW THEREFORE, for good and valuable consideration, Lessor and Lessee hereby
agree to amend the Lease as follows:
1. Lessee agrees to maintain a financial status of all of the following
during the term of the Lease and any extension or renewal thereof:
a. Tangible net worth of not less than $15,000,000.00;
b. Cash or equivalents of not less than $15,000,000.00;
2. In addition, Lessee agrees to provide Lessor with quarterly financial
statements within forty-five (45) days after the end of each fiscal quarter and
audited annual financial statements within one hundred twenty (120) days of the
end of each fiscal year.
3. Failure of Lessee to maintain any one of the above at any time during the
Lease term and any extension or renewal thereof or the failure to make any
payment due under the Lease is an Event of Default under the Lease which Lessee
must, within ten (10) days, provide a Letter of Credit from a bank acceptable to
Lessor for one hundred percent (100%) of all rent then due or to become due
under the lease as of the date of the default. Along with the Letter of Credit,
Lessee shall also execute a Letter of Credit Agreement with Lessor. The Letter
of Credit and Letter of Credit Agreement shall be in a form identical to
Exhibits A & B attached and incorporated herein.
4. Lessor shall also be entitled to any or all remedies or actions in the
event of default, as provided in the Lease, and this Amendment shall not be
construed to limit Lessor's rights in any way.
Except as set out herein, Lessor and Lessee hereby agree that the terms and
conditions of the Lease shall remain in full force and effect as entered into by
the parties on or prior to the date hereof.
COMDISCO LABORATORY AND SCIENTIFIC
SEQUENOM, INC. GROUP, a division of
as Lessee COMDISCO, INC.
as Lessor
By: /s/ XXXXXXX XXXXXXXX By: /s/ XXXX XXXXXX
------------------------- ----------------------------
Title: CFO Title: AVP
--------------------- -------------------------
Date: 5/25/2000 Date: 6/2/2000
---------------------- --------------------------
EXHIBIT A
(On Bank Letterhead)
(DATE)
BENEFICIARY:
Comdisco Laboratory and Scientific Group,
a division of Comdisco, Inc., or Transferee
0000 X. Xxxxx Xxxx
Xxxxxxxx, XX 00000
Gentlemen:
We hereby establish our Irrevocable Standby Letter of Credit No. ______ in your
favor for account of Sequenom, Inc., for a sum not to exceed AND /100 DOLLARS
($) available by your draft drawn at sight on us.
Draft must be accompanied by: Your statement signed by an officer of Comdisco
Laboratory and Scientific Group, a division of Comdisco, Inc. certifying that
Sequenom ,Inc. has defaulted under that certain Global Master Rental Agreement
dated May 4, 2000 between Sequenom, Inc. and Comdisco Laboratory and Scientific
Group, a division of Comdisco, Inc., and the original of this Letter of Credit.
This Letter of Credit expires __________. All drafts drawn hereunder must be
present for payment at our office at ___________________ on or before that date.
It is a condition of this Irrevocable Standby Letter of Credit that it shall be
deemed automatically extended without amendment for one (1) year from the
present or any future expiration date hereof but not beyond end of lease term.
Should we elect not to renew this Standby Letter of Credit, we shall notify you
of such election 45 days prior to any such date. All notices shall be in
writing, sent by certified mail, return receipt requested and addressed to you
at the above address, ATTENTION: Credit Manager. Notwithstanding receipt by
you of such notice, you may draw hereby by means of your draft on us at sight
accompanied by the documents required herein, until such expiration date.
This Letter of Credit may be transferred by you at any time and such transfer
shall be deemed effective and binding on us upon receipt of written notice of
such transfer from you when accompanied by the original of this Letter of
Credit.
We hereby agree that drafts drawn strictly in compliance with the terms of this
credit and any amendments thereto shall meet with due honor upon presentation at
our office at.
___________________
Title
EXHIBIT B
LETTER OF CREDIT
AGREEMENT
Stand-by Letter of Credit Agreement dated _____________, by and between
Sequenom, Inc. ("Lessee") located at and Comdisco Laboratory and Scientific
Group, a division of Comdisco, Inc. ("Lessor") with offices at 0000 X. Xxxxx
Xxxx, Xxxxxxxx, XX 00000.
WHEREAS, Lessee has requested that Lessor lease various equipment, as further
described in the Lease (the "Equipment"), to Lessee; and
WHEREAS, Lessor has agreed to lease the Equipment to Lessee upon the condition
that an Irrevocable Stand-by Letter of Credit shall be outstanding for the full
term of the Master Lease Agreement to additionally secure Lessee's performance
under the Lease.
NOW THEREFORE, in consideration of and as an inducement to Lessor to lease the
Equipment to Lessee, the parties hereto agree as follows:
1. Lessee and Lessor have entered or shall enter into a Master Lease
Agreement and one or more Schedules thereunder for leasing the Equipment,
(together the "Lease"), all of which shall be covered by the terms of this
Agreement.
2. Concurrently with the execution for this Agreement, Lessee shall cause
to be delivered to Lessor in the form attached hereto as Exhibit A, an
Irrevocable Stand-by Letter of Credit issued by a bank acceptable to Lessor,
which Letter of Credit shall be in the amount of AND /100 dollars ($) ("Letter
of Credit") and shall be outstanding until __________, with annual renewals
until end of lease term.
3. Receipt by Lessor of notice that the Letter of Credit will not be
renewed on any expiration date, as provided therein, shall constitute a material
default by Lessee under the terms and conditions of the Lease. Lessor shall then
have the right to draw upon the Letter of Credit up to its full amount and to
apply the proceeds as set out in paragraph 4, below, unless at least thirty (30)
days prior to said expiration date Lessee replaces the Letter of Credit with a
Letter of Credit which has been issued by a bank acceptable to Lessor and has
the same terms and conditions as the replaced Letter of Credit.
4. Upon the occurrence of any Event of Default under the Lease which shall
include Amendment 001, and at any time while a default is continuing, Lessor
shall have the right to draw upon the Letter of Credit up to its full amount and
to apply the proceeds thereof first to any reasonable costs and expenses
incurred by Lessor in the enforcement of the terms of the Lease and the exercise
of its rights and remedies, then to the unpaid balance of all sums payable
under the Lease, whether by acceleration or otherwise, with any excess proceeds
being refundable to Lessee, and Lessee remaining liable for any deficiency.
5. Waiver by Lessor of a default shall not constitute a continuing waiver
of default, of the same provision or any other provision of the Lease.
Additionally, failure of Lessor to draw upon the Letter of Credit at any time
shall not be construed as a waiver of Lessor's right to draw upon the Letter of
Credit as herein set forth at any other time.
6. The exercise by Lessor of its rights under this Agreement shall be
deemed to be in addition to and not in lieu of any other rights and remedies of
Lessor under the Lease, or any other document relating to the Lease and shall
not be construed in any manner to represent satisfaction of the obligations of
Lessee under or with respect to the Lease.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of
the date set forth above.
SEQUENOM, INC. COMDISCO LABORATORY AND SCIENTIFIC GROUP,
as Lessee A DIVISION OF COMDISCO, INC.
as Lessor
By:________________________ By:_______________________________
Title:_____________________ Title:____________________________
Date:______________________ Date:_____________________________
DRAW REQUEST
Letter of Credit No. ___________
[date]
Attention: Letter of Credit Department
Gentlemen:
The undersigned hereby draws on Irrevocable Standby Letter of Credit No. ,
dated (the "Letter of Credit") issued by you in our favor. Any capitalized
term used herein and not defined shall have its respective meaning as set forth
in the Letter of Credit.
In connection with the drawing, the undersigned hereby certifies that:
(1) Pursuant to Equipment Schedule No. SG-, an Event of Default has
occurred thereunder and we are making this drawing under the Letter of Credit
pursuant to the Schedule.
(2) The amount of this request is $, which amount does not exceed the
current Letter of Credit amount.
(3) The date here is not after the Expiration Date.
IN WITNESS WHEREOF, the undersigned has executed and delivered this request on
this day of .
COMDISCO LABORATORY AND SCIENTIFIC GROUP,
A DIVISION OF COMDISCO, INC.
By: SAMPLE
--------------------------
Title:_________________________________
CERTIFICATE
The Undersigned, a duly elected and acting ___________ Secretary of Sequenom,
Inc., a _____________ corporation (the "Company") does hereby certify as
follows:
(A) The following listed persons are duly elected and acting officers of
the Company (the "Officers") in the capacity set forth opposite their
respective names below and that the facsimile signatures are true and
correct as of the date hereof; and
(B) The Officers are duly authorized, on behalf of the Company, to
negotiate, execute and deliver the Global Master Rental Agreement
dated as of May 4, 2000 and the Equipment Schedule(s) thereunder and
all future Equipment Schedule(s) (the "Agreements") by and between the
Company and Comdisco Laboratory and Scientific Group, a division of
Comdisco, Inc.; and these Agreements are binding and authorized
Agreements of the Company, enforceable in all respects in accordance
with their terms.
NAME OF OFFICER TITLE SIGNATURE
________________ _______________ ____________________
________________ _______________ ____________________
________________ _______________ ____________________
________________ _______________ ____________________
WITNESS MY HAND and the corporate seal of the Company this _______ day of
___________________, 2000.
____________________________________
____________________________ Secretary
SEAL
