EXHIBIT 10.21
*LEAS1998*
MASTER LEASE AGREEMENT
DATED AS OF DECEMBER 3, 2002 ("AGREEMENT")
THIS AGREEMENT is between GENERAL ELECTRIC CAPITAL CORPORATION (together
with its successors and assigns, if any, "LESSOR") and PREDIX PHARMACEUTICALS,
INC. ("LESSEE"). Lessor has an office at 000 Xxxxxxx 0 Xxxxx 00, Xxxxxxx, XX
00000-0000. Lessee is a corporation organized and existing under the laws of the
state of Delaware. Lessee's mailing address and chief place of business is 00 X
Xxxx Xxxxxx, Xxxxxx, XX 00000. This Agreement contains the general terms that
apply to the leasing of Equipment from Lessor to Lessee. Additional terms that
apply to the Equipment (term, rent, options, etc.) shall be contained on a
schedule ("SCHEDULE").
1. LEASING:
(a) Lessor agrees to lease to Lessee, and Lessee agrees to lease from
Lessor, the equipment and the property ("EQUIPMENT") described in any Schedule
signed by both parties.
(b) Lessor shall purchase Equipment from the manufacturer or supplier
("SUPPLIER") and lease it to Lessee if on or before the Last Delivery Date
Lessor receives (i) a Schedule for the Equipment, (ii) evidence of insurance
which complies with the requirements of Section 9, and (iii) such other
documents as Lessor may reasonably request. Each of the documents required above
must be in form and substance satisfactory to Lessor. Lessor hereby appoints
Lessee its agent for inspection and acceptance of the Equipment from the
Supplier. Once the Schedule is signed, the Lessee may not cancel the Schedule.
2. TERM, RENT AND PAYMENT:
(a) The rent payable for the Equipment and Lessees right to use the
Equipment shall begin on the earlier of (i) the date when the Lessee signs the
Schedule and accepts the Equipment or (ii) when Lessee has accepted the
Equipment tinder a Certificate of Acceptance ("LEASE COMMENCEMENT DATE"). The
term of this Agreement shall be the period specified in the applicable Schedule.
The word "term" shall include all basic and any renewal terms.
(b) Lessee shall pay rent to Lessor at its address stated above, except as
otherwise directed by Lessor. Rent payments shall be in the amount set forth in,
and due as stated in the applicable Schedule. If any Advance Rent (as stated in
the Schedule) is payable, it shall be due when the Lessee signs the Schedule.
Advance Rent shall be applied to the first rent payment and the balance, if any,
to the final rent payment(s) under such Schedule. In no event shall any Advance
Rent or any other rent payments be refunded to Lessee. If rent is not paid
within ten (10) days of its due date, Lessee agrees to pay a late charge of five
cents ($.05) per dollar on, and in addition to, the amount of such rent but not
exceeding the lawful maximum, if any.
3. RENT ADJUSTMENT:
(a) If, solely as a result of Congressional enactment of any law
(including, without limitation, any modification of, or amendment or addition
to, the Internal Revenue Code of 1986, as amended, ("CODE")), the maximum
effective corporate income tax rate (exclusive of any minimum tax rate) for
calendar-year taxpayers ("EFFECTIVE RATE") is higher than thirty-five percent
(35%) for any year during the lease term, then Lessor shall have the right to
increase such rent payments by requiring payment of a single additional sum. The
additional sum shall be equal to the product of (i) the Effective Rate
(expressed as a decimal) for such year less .35 (or, in the event that any
adjustment has been made hereunder for any previous year, the Effective Rate
(expressed as a decimal) used in calculating the next previous adjustment) times
(ii) the adjusted Termination Value (defined below), divided by (iii) the
difference between the new Effective Rate (expressed as a decimal) and one (1).
The adjusted Termination Value shall be the Termination Value (calculated as of
the first rent due in the year for which the adjustment is being made) minus the
Tax Benefits that would be allowable under Section 168 of the Code (as of the
first day of the year for which such adjustment is being made and all future
years of the lease term). The Termination Values and Tax Benefits are defined on
the Schedule. Lessee shall pay to Lessor the Rill amount of the additional rent
payment on the later of (i) receipt of notice or (ii) the first day of the year
for which such adjustment is being made.
(b) Lessee's obligations under this Section 3 shall survive any expiration
or termination of this Agreement.
4. TAXES:
(a) If permitted by law, Lessee shall report and pay promptly all taxes,
fees and assessments due, imposed, assessed or levied against any Equipment (or
purchase, ownership, delivery, leasing, possession, use or operation thereof),
this Agreement (or any rents or receipts hereunder), any Schedule, Lessor or
Lessee by any governmental entity or taxing authority during or related to the
term of this Agreement, including, without limitation, all license and
registration fees, and all sales, use, personal property, excise, gross
receipts, franchise, stamp or other taxes, imposts, duties and charges, together
with any penalties, fines or interest thereon (collectively "TAXES"). Lessee
shall have no liability for Taxes imposed by the United States of America or any
state or political subdivision thereof which are on or measured by the net
income of Lessor except as provided in Sections 3 and 14(c). Lessee shall
promptly reimburse Lessor (on an after tax basis) for any Taxes charged to of
assessed against Lessor. Lessee shall show Lessor as the owner of the Equipment
on all tax reports or returns, and send Lessor a copy of each report or return
and evidence of Lessee's payment of Taxes upon request.
(b) Lessee's obligations, and Lessor's rights and privileges, contained in
this Section 4 shall survive the expiration or other termination of this
Agreement.
5. REPORTS:
(a) If any tax or other lien shall attach to any Equipment, Lessee will
notify Lessor in writing, within ten (10) days after Lessee becomes aware of the
tax or lien. The notice shall
include the full particulars of the tax or lien and the location of such
Equipment on the date of the notice.
(b) Lessee will deliver to Lessor, Lessee's complete financial statements,
certified by a recognized firm of certified public accountants within ninety
(90) days of the close of each fiscal year of Lessee. Lessee will deliver to
Lessor copies of Lessee's quarterly financial report certified by the chief
financial officer of Lessee, within ninety (90) days of the close of each fiscal
quarter of Lessee. Lessee will deliver to Lessor all Forms 10-K and 10-Q, if
any, filed with the Securities and Exchange Commission within thirty (30) days
after the date on which they are filed.
(c) Lessor may inspect any Equipment during normal business hours after
giving Lessee reasonable prior notice.
(d) Lessee will keep the Equipment at the Equipment Location (specified in
the applicable Schedule) and will give Lessor prior written notice of any
relocation of Equipment. If Lessor asks, Lessee will promptly notify Lessor in
writing of the location of any Equipment.
(e) If any Equipment is lost or damaged (where the estimated repair costs
would exceed the greater of ten percent (10%) of the original Equipment cost or
ten thousand and 00/100 dollars ($10,000)), or is otherwise involved in an
accident causing personal injury or property damage, Lessee will promptly and
fully report the event to Lessor in writing.
(f) Lessee will furnish a certificate of an authorized officer of Lessee
stating that he has reviewed the activities of Lessee and that, to the best of
his knowledge, there exists no default or event which with notice or lapse of
time (or both) would become such a default within thirty (30) days after any
request by Lessor.
(g) Lessee will promptly notify Lessor of any change in Lessee's state of
incorporation or organization.
6. DELIVERY, USE AND OPERATION:
(a) All Equipment shall be shipped directly from the Supplier to Lessee.
(b) Lessee agrees that the Equipment will be used by Lessee solely in the
conduct of its business and in a manner complying with all applicable laws,
regulations and insurance policies and Lessee shall not discontinue use of the
Equipment.
(c) Lessee will not move any equipment from the location specified on the
Schedule, without the prior written consent of Lessor.
(d) Lessee will keep the Equipment free and clear of all liens and
encumbrances other than those which result from acts of Lessor.
(e) Lessor shall not disturb Lessee's quiet enjoyment of the Equipment
during the term of the Agreement unless a default has occurred and is continuing
under this Agreement.
7. MAINTENANCE:
(a) Lessee will, at its sole expense, maintain each unit of Equipment in
good operating order and repair, normal wear and tear excepted. The Lessee shall
also maintain the Equipment in accordance with manufacturer's recommendations.
Lessee shall make all alterations or modifications required to comply with any
applicable law, rule or regulation during the term of this Agreement. If Lessor
requests, Lessee shall affix plates, tags or other identifying labels showing
ownership thereof by Lessor. The tags or labels shall be placed in a prominent
position on each unit of Equipment.
(b) Lessee will not attach or install anything on any Equipment that will
impair the originally intended function or use of such Equipment without the
prior written consent of Lessor. All additions, parts, supplies, accessories,
and equipment ("ADDITIONS") furnished or attached to any Equipment that are not
readily removable shall become the property of Lessor. All Additions shall be
made only in compliance with applicable law. Lessee will not attach or install
any Equipment to or in any other personal or real property without the prior
written consent of Lessor.
8. STIPULATED LOSS VALUE: If for any reason any unit of Equipment becomes
worn out, lost, stolen, destroyed, irreparably damaged or unusable ("CASUALTY
OCCURRENCES") Lessee shall promptly and fully notify Lessor in writing. Lessee
shall pay Lessor the sum of (i) the Stipulated Loss Value (see Schedule) of the
affected unit determined as of the rent payment date prior to the Casualty
Occurrence; and (ii) all rent and other amounts which are then due under this
Agreement on the Payment Date (defined below) for the affected unit. The Payment
Date shall be the next rent payment date after the Casualty Occurrence. Upon
Payment of all sums due hereunder, the term of this lease as to such unit shall
terminate.
9. INSURANCE:
(a) Lessee shall bear the entire risk of any loss, theft, damage to, or
destruction of, any unit of Equipment from any cause whatsoever from the time
the Equipment is shipped to Lessee.
(b) Lessee agrees, at its own expense, to keep all Equipment insured for
such amounts and against such hazards as Lessor may reasonably require. All such
policies shall be with companies, and on terms, reasonably satisfactory to
Lessor. The insurance shall include coverage for damage to or loss of the
Equipment, liability for personal injuries, death or property damage. Lessor
shall be named as additional insured with a loss payable clause in favor of
Lessor, as its interest may appear, irrespective of any breach of warranty or
other act or omission of Lessee. The insurance shall provide for liability
coverage in an amount equal to at least ONE MILLION U.S. DOLLARS ($1,000,000.00)
total liability per occurrence, unless otherwise stated in any Schedule. The
casualty/property damage coverage shall be in an amount equal to the higher of
the Stipulated Loss Value or the full replacement cost of the Equipment. No
insurance shall be subject to any co-insurance clause. The insurance policies
shall provide that the insurance may not be altered or canceled by the insurer
until after thirty (30) days written notice to Lessor. Lessee agrees to deliver
to Lessor evidence of insurance reasonably satisfactory to Lessor.
(c) Lessee hereby appoints Lessor as Lessee's attorney-in-fact to make
proof of loss and claim for insurance, and to make adjustments with insurers and
to receive payment of and execute or endorse all documents, checks or drafts in
connection with insurance payments. Lessor shall not act as Lessee's
attorney-in-fact unless Lessee is in default. Lessee shall pay any reasonable
expenses of Lessor in adjusting or collecting insurance. Lessee will not make
adjustments with insurers except with respect to claims for damage to any unit
of Equipment where the repair costs are less than the lesser of ten percent
(10%) of the original Equipment cost or ten thousand and 00/100 dollars
($10,000). Lessor may, at its option, apply proceeds of insurance, in whole or
in part, to (i) repair or replace Equipment or any portion thereof, or (ii)
satisfy any obligation of Lessee to Lessor under this Agreement.
10. RETURN OF EQUIPMENT:
(a) At the expiration or termination of this Agreement or any Schedule,
Lessee shall perform any testing and repairs required to place the units of
Equipment in the same condition and appearance as when received by Lessee
(reasonable wear and tear excepted) and in good working order for the original
intended purpose of the Equipment. If required the units of Equipment shall be
deinstalled, disassembled and crated by an authorized manufacturer's
representative or such other service person as is reasonably satisfactory to
Lessor. Lessee shall remove installed markings that are not necessary for the
operation, maintenance or repair of the Equipment. All Equipment will be
cleaned, cosmetically acceptable, and in such condition as to be immediately
installed into use in a similar environment for which the Equipment was
originally intended to be used. All waste material and fluid must be removed
from the Equipment and disposed of in accordance with then current waste
disposal laws. Lessee shall return the units of Equipment to a location within
the continental United States as Lessor shall direct. Lessee shall obtain and
pay for a policy of transit insurance for the redelivery period in an amount
equal to the replacement value of the Equipment. The transit insurance must name
Lessor as the loss payee. The Lessee shall pay for all costs to comply with this
section (a).
(b) Until Lessee has fully complied with the requirements of Section 10(a)
above, Lessee's rent payment obligation and all other obligations under this
Agreement shall continue from month to month notwithstanding any expiration or
termination of the lease term. Lessor may terminate the Lessee's right to use
the Equipment upon ten (10) days notice to Lessee.
(c) Lessee shall provide to Lessor a detailed inventory of all components
of the Equipment including model and serial numbers. Lessee shall also provide
an up-to-date copy of all other documentation pertaining to the Equipment. All
service manuals, blue prints, process flow diagrams, operating manuals,
inventory and maintenance records shall be given to Lessor at least ninety (90)
days and not more than one hundred twenty (120) days prior to lease termination.
(d) Lessee shall make the Equipment available for on-site operational
inspections by potential purchasers at least one hundred twenty (120) days prior
to and continuing up to lease termination. Lessor shall provide Lessee with
reasonable notice prior to any inspection. Lessee shall provide personnel, power
and other requirements necessary to demonstrate electrical, hydraulic and
mechanical systems for each item of Equipment.
11. DEFAULT AND REMEDIES:
(a) Lessor may in writing declare this Agreement in default if: (i) Lessee
breaches its obligation to pay rent or any other sum when due and fails to cure
the breach within ten (10) days; (ii) Lessee breaches any of its insurance
obligations under Section 9; (iii) Lessee breaches any of its other obligations
and fails to cure that breach within thirty (30) days after written notice from
Lessor; (iv) any representation or warranty made by Lessee in connection with
this Agreement shall be false or misleading in any material respect; (v) Lessee
or any guarantor or other obligor for the Lessee's obligations hereunder
("GUARANTOR") becomes insolvent or ceases to do business as a going concern;
(vi) any Equipment is illegally used; (vii) if Lessee or any Guarantor is a
natural person, any death or incompetency of Lessee or such Guarantor; (viii) a
petition is filed by or against Lessee or any Guarantor under any bankruptcy or
insolvency laws and in the event of an involuntary petition, the petition is not
dismissed within forty-five (45) days of the filing date; (ix) Lessee defaults
under any other material obligation for (A) borrowed money, (B) the deferred
purchase price of property, or (C) payments due under lease agreements; or (x)
there is any dissolution, termination of existence, merger, consolidation or
change in controlling ownership of Lessee or any Guarantor. The default
declaration shall apply to all Schedules unless specifically excepted by Lessor.
(b) After a default, at the request of Lessor, Lessee shall comply with
the provisions of Section 10(a). Lessee hereby authorizes Lessor to peacefully
enter any premises where any Equipment may be and take possession of the
Equipment. Lessee shall immediately pay to Lessor without further demand as
liquidated damages for loss of a bargain and not as a penalty, the Stipulated
Loss Value of the Equipment (calculated as of the rent payment date prior to the
declaration of default), and all rents and other sums then due under this
Agreement and all Schedules. Lessor may terminate this Agreement as to any or
all of the Equipment. A termination shall occur only upon written notice by
Lessor to Lessee and only as to the units of Equipment specified in any such
notice. Lessor may, but shall not be required to, sell Equipment at private or
public sale, in bulk or in parcels, with or without notice, and without having
the Equipment present at the place of sale. Lessor may also, but shall not be
required to, lease, otherwise dispose of or keep idle all or part of the
Equipment. Lessor may use Lessee's premises for a reasonable period of time for
any or all of the purposes stated above without liability for rent, costs,
damages or otherwise. The proceeds of sale, lease or other disposition, if any,
shall be applied in the following order of priorities: (i) to pay all of
Lessor's costs, charges and expenses incurred in taking, removing, holding,
repairing and selling, leasing or otherwise disposing of Equipment; then, (ii)
to the extent not previously paid by Lessee, to pay Lessor all sums due from
Lessee under this Agreement; then (iii) to reimburse to Lessee any sums
previously paid by Lessee as liquidated damages; and (iv) any surplus shall be
retained by Lessor. Lessee shall immediately pay any deficiency in (i) and (ii)
above.
(c) The foregoing remedies are cumulative, and any or all thereof may be
exercised instead of or in addition to each other or any remedies at law, in
equity, or under statute. Lessee waives notice of sale or other disposition (and
the time and place thereof), and the manner and place of any advertising. Lessee
shall pay Lessor's actual attorney's fees incured in connection with the
enforcement, assertion, defense or preservation of Lessor's rights and remedies
under this Agreement, or if prohibited by law, such lesser sum as may be
permitted. Waiver of any default shall not be a waiver of any other or
subsequent default.
(d) Any default under the terms of this or any other agreement between
Lessor and Lessee may be declared by Lessor a default under this and any such
other agreement.
12. ASSIGNMENT: LESSEE SHALL NOT SELL, TRANSFER, ASSIGN, ENCUMBER OR SUBLET
ANY EQUIPMENT OR THE INTEREST OF LESSEE IN THE EQUIPMENT WITHOUT THE PRIOR
WRITTEN CONSENT OF LESSOR. Lessor may, without the consent of Lessee, assign
this Agreement, any Schedule or the right to eater into a Schedule. Lessee
agrees that if Lessee receives written notice of an assignment from Lessor,
Lessee will pay all rent and all other amounts payable under any assigned
Schedule to such assignee or as instructed by Lessor. Lessee also agrees to
confirm in writing receipt of the notice of assignment as may be reasonably
requested by assignee. Lessee hereby waives and agrees not to assert against any
such assignee any defense, set-off, recoupment claim or counterclaim which
Lessee has or may at any time have against Lessor for any reason whatsoever.
13. NET LEASE: Lessee is unconditionally obligated to pay all rent and other
amounts due for the entice lease term no matter what happens, even if the
Equipment is damaged or destroyed, if it is defective or if Lessee no longer can
use it. Lessee is not entitled to reduce or set-off against rent or other
amounts due to Lessor or to anyone to whom Lessor assigns this Agreement or any
Schedule whether Lessee's claim arises out of this Agreement, any Schedule, any
statement by Lessor, Lessor's liability or any manufacturer's liability, strict
liability, negligence or otherwise.
14. INDEMNIFICATION:
(a) Lessee hereby agrees to indemnify Lessor, its agents, employees,
successors and assigns (on an after tax basis) from and against any and all
losses, damages, penalties, injuries, claims, actions and suits, including legal
expenses, of whatsoever kind and nature arising out of or relating to the
Equipment or this Agreement, except to the extent the losses, damages,
penalties, injuries, claims, actions, suits or expenses result from Lessor's
gross negligence or willful misconduct ("CLAIMS"). This indemnity shall include,
but is not limited to, Lessor's strict liability in tort and Claims, arising out
of (i) the selection, manufacture, purchase, acceptance or rejection of
Equipment, the ownership of Equipment during the term of this Agreement, and the
delivery, lease, possession, maintenance, uses, condition, return or operation
of Equipment (including, without limitation, latent and other defects, whether
or not discoverable by Lessor or Lessee and any claim for patent, trademark or
copyright infringement or environmental damage) or (ii) the condition of
Equipment sold or disposed of after use by Lessee, any sublessee or employees of
Lessee. Lessee shall, upon request, defend any actions based on, or arising out
of, any of the foregoing.
(b) Lessee hereby represents, warrants and covenants that (i) on the Lease
Commencement Date for any unit of Equipment, such unit will qualify for all of
the items of deduction and credit specified in Section C of the applicable
Schedule ("TAX BENEFITS") in the hands of Lessor, and (ii) at no time during the
term of this Agreement will Lessee take or omit to take, nor will it permit any
sublessee or assignee to take or omit to take, any action (whether or not such
act or omission is otherwise permitted by Lessor or by this Agreement), which
will result in the disqualification of any Equipment for, or recapture of, all
or any portion of such Tax Benefits.
(c) If as a result of a breach of any representation, warranty or covenant
of the Lessee contained in this Agreement or any Schedule (i) tax counsel of
Lessor shall determine that Lessor is not entitled to claim on its Federal
income tax return all or any portion of the Tax Benefits with respect to any
Equipment, or (ii) any Tax Benefit claimed on the Federal income tax return of
Lessor is disallowed or adjusted by the Internal Revenue Service, or (iii) any
Tax Benefit is recalculated or recaptured (any determination, disallowance,
adjustment, recalculation or recapture being a "LOSS"), then Lessee shall pay to
Lessor, as an indemnity and as additional rent, an amount that shall, in the
reasonable opinion of Lessor, cause Lessor's after-tax economic yields and cash
flows to equal the Net Economic Return that would have been realized by Lessor
if such Loss had not occurred. Such amount shall be payable upon demand
accompanied by a statement describing in reasonable detail such Loss and the
computation of such amount. The economic yields and cash flows shall be computed
on the same assumptions, including tax rates as were used by Lessor in
originally evaluating the transaction ("NET ECONOMIC RETURN"). If an adjustment
has been made under Section 3 then the Effective Rate used in the next preceding
adjustment shall be substituted.
(d) All references to Lessor in this Section 14 include Lessor and the
consolidated taxpayer group of which Lessor is a member. All of Lessor's rights,
privileges and indemnities contained in this Section 14 shall survive the
expiration or other termination of this Agreement. The rights, privileges and
indemnities contained herein are expressly made for the benefit of, and shall be
enforceable by Lessor, its successors and assigns.
15. DISCLAIMER: LESSEE ACKNOWLEDGES THAT IT HAS SELECTED THE EQUIPMENT WITHOUT
ANY ASSISTANCE FROM LESSOR, ITS AGENTS OR EMPLOYEES. LESSOR DOES NOT MAKE, HAS
NOT MADE, NOR SHALL BE DEEMED TO MAKE OR HAVE MADE, ANY WARRANTY OR
REPRESENTATION, EITHER EXPRESS OR IMPLIED, WRITTEN OR ORAL, WITH RESPECT TO THE
EQUIPMENT LEASED UNDER THIS AGREEMENT OR ANY COMPONENT THEREOF, INCLUDING,
WITHOUT LIMITATION, ANY WARRANTY AS TO DESIGN, COMPLIANCE WITH SPECIFICATIONS,
QUALITY OF MATERIALS OR WORKMANSHIP, MERCHANTABILITY, FITNESS FOR ANY PURPOSE,
USE OR OPERATION, SAFETY, PATENT, TRADEMARK OR COPYRIGHT INFRINGEMENT, OR TITLE.
All such risks, as between Lessor and Lessee, are to be borne by Lessee. Without
limiting the foregoing, Lessor shall have no responsibility or liability to
Lessee or any other person with respect to any of the following; (i) any
liability, loss or damage caused or alleged to be caused directly or indirectly
by any Equipment, any inadequacy thereof, any deficiency or defect (latent or
otherwise) of the Equipment, or any other circumstance in connection with the
Equipment; (ii) the use, operation or performance of any Equipment or any risks
relating to it; (iii) any interruption of service, loss of business or
anticipated profits or consequential damages; or (iv) the delivery, operation,
servicing, maintenance, repair, improvement or replacement of any Equipment. If
and so long as, no default exists under this Agreement, Lessee shall be, and
hereby is, authorized during the term of this Agreement to assert and enforce
whatever claims and rights Lessor may have against any Supplier of the Equipment
at Lessee's sole cost and expense, in the name of and for the account of Lessor
and/or Lessee, as their interests may appear.
16. REPRESENTATIONS AND WARRANTIES OF LESSEE: Lessee makes each of the
following representations and warranties to Lessor on the date hereof and on the
date of execution of each Schedule.
(a) Lessee has adequate power and capacity to enter into, and perform
under, this Agreement and all related documents (together, the "DOCUMENTS").
Lessee is duly qualified to do business wherever necessary to carry on its
present business and operations, including the jurisdiction(s) where the
Equipment is or is to be located.
(b) The Documents have been duly authorized, executed and delivered by
Lessee and constitute valid, legal and binding agreements, enforceable in
accordance with their terms, except to the extent that the enforcement of
remedies may be limited under applicable bankruptcy and insolvency laws.
(c) No approval, consent or withholding of objections is required from any
governmental authority or entity with respect to the entry into or performance
by Lessee of the Documents except such as have already been obtained.
(d) The entry into and performance by Lessee of the Documents will not:
(i) violate any judgment, order, law or regulation applicable to Lessee or any
provision of Lessee's Certificate of Incorporation or bylaws; or (ii) result in
any breach of, constitute a default under or result in the creation of any lien,
charge, security interest or other encumbrance upon any Equipment pursuant to
any indenture, mortgage, deed of trust, bank loan or credit agreement or other
instrument (other than this Agreement) to which Lessee is a party.
(e) There are no suits or proceedings pending or threatened in court or
before any commission, board or other administrative agency against or affecting
Lessee, which if decided against Lessee will have a material adverse effect on
the ability of Lessee to fulfill its obligations under this Agreement.
(f) The Equipment accepted under any Certificate of Acceptance is and will
remain tangible personal property.
(g) Each financial statement delivered to Lessor has been prepared in
accordance with generally accepted accounting principles consistently applied.
Since the date of the most recent financial statement, there has been no
material adverse change.
(h) Lessee's exact legal name is as set forth in the first sentence of
this Agreement and Lessee is and will be at all times validly existing and in
good standing under the laws of the State of its incorporation or organization
(specified in the first sentence of this Agreement).
(i) The Equipment will at all times be used for commercial or business
purposes.
17. EARLY TERMINATION:
(a) On or after the First Termination Date (specified in the applicable
Schedule), Lessee may, so long as no default exists hereunder, terminate this
Agreement as to all (but not
less than all) of the Equipment on such Schedule as of a rent payment date
("TERMINATION DATE"). Lessee must give Lessor at least ninety (90) days prior
written notice of the termination.
(b) Lessee shall, and Lessor may, solicit cash bids for the Equipment on
an AS IS, WHERE IS BASIS without recourse to or warranty from Lessor, express or
implied ("AS IS BASIS"). Prior to the Termination Date, Lessee shall (i) certify
to Lessor any bids received by Lessee and (ii) pay to Lessor (A) the Termination
Value (calculated as of the rent due on the Termination Date) for the Equipment,
and (B) all rent and other sums due and unpaid as of the Termination Date.
(c) If all amounts due hereunder have been paid on the Termination Date,
Lessor shall (i) sell the Equipment on an AS IS BASIS for cash to the highest
bidder and (ii) refund the proceeds of such sale (net of any related expenses)
to Lessee up to the amount of the Termination Value. If such sale is not
consummated, no termination shall occur and Lessor shall refund the Termination
Value (less any expenses incurred by Lessor) to Lessee.
(d) Notwithstanding the foregoing, Lessor may elect by written notice, at
any time prior to the Termination Date, not to sell the Equipment. In that
event, on the Termination Date Lessee shall (i) return the Equipment (in
accordance with Section 10) and (ii) pay to Lessor all amounts required under
Section 17(b) less the amount of the highest bid certified by Lessee to Lessor.
18. PURCHASE OPTION:
(a) Lessee may at lease expiration purchase all (but not less than all) of
the Equipment in any Schedule on an AS IS BASIS for cash equal to its then Fair
Market Value (plus all applicable sales taxes). Lessee must notify Lessor of its
intent to purchase the Equipment in writing at least one hundred eighty (180)
days in advance. If Lessee is in default or if the Lease has already been
terminated Lessee may not purchase the Equipment.
(b) "Fair Market Value" shall mean the price that a willing buyer (who is
neither a lessee in possession nor a used equipment dealer) would pay for the
Equipment in an arm's-length transaction to a willing seller under no compulsion
to sell. In determining the Fair Market Value the Equipment shall be assumed to
be in the condition in which it is required to be maintained and returned under
this Agreement. If the Equipment is installed it shall be valued on an installed
basis. The costs of removal from current location shall not be a deduction from
the value of the Equipment. If Lessor and Lessee are unable to agree on the Fair
Market Value at least one hundred thirty-five (135) days before lease
expiration, Lessor shall appoint an independent appraiser (reasonably acceptable
to Lessee) to determine Fair Market Value. The independent appraiser's
determination shall be final, binding and conclusive. Lessee shall bear all
costs associated with any such appraisal.
(c) Lessee shall be deemed to have waived this option unless it provides
Lessor with written notice of its irrevocable election to exercise the same
within fifteen (15) days after Fair Market Value is told to Lessee.
19. MISCELLANEOUS:
(a) LESSEE AND LESSOR UNCONDITIONALLY WAIVE THEIR RIGHTS TO A JURY TRIAL
OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT, ANY
OF THE RELATED DOCUMENTS, ANY DEALINGS BETWEEN LESSEE AND LESSOR RELATING TO THE
SUBJECT MATTER OF THIS TRANSACTION OR ANY RELATED TRANSACTIONS, AND/OR THE
RELATIONSHIP THAT IS BEING ESTABLISHED BETWEEN LESSEE AND LESSOR. THE SCOPE OF
THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY
BE FILED IN ANY COURT. THIS WAIVER IS IRREVOCABLE. THIS WAIVER MAY NOT BE
MODIFIED EITHER ORALLY OR IN WRITING. THE WAIVER ALSO SHALL APPLY TO ANY
SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT,
ANY RELATED DOCUMENTS, OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THIS
TRANSACTION OR ANY RELATED TRANSACTION. THIS AGREEMENT MAY BE FILED AS A WRITTEN
CONSENT TO A TRIAL BY THE COURT.
(b) The Equipment shall remain Lessor's property unless Lessee purchases
the Equipment from Lessor and until such time Lessee shall only have the right
to use the Equipment as a lessee. Any cancellation or termination by Lessor of
this Agreement, any Schedule, supplement or amendment hereto, or the lease of
any Equipment hereunder shall not release Lessee from any then outstanding
obligations to Lessor hereunder. All Equipment shall at all times remain
personal property of Lessor even though it may be attached to real property. The
Equipment shall not become part of any other property by reason of any
installation in, or attachment to, other real or personal property.
(c) Time is of the essence of this Agreement. Lessor's failure at any time
to require strict performance by Lessee of any of the provisions hereof shall
not waive or diminish Lessor's right at any other time to demand strict
compliance with this Agreement. Lessee agrees, upon Lessor's request, to
execute, or otherwise authenticate, any document, record or instrument necessary
or expedient for filing, recording or perfecting the interest of Lessor or to
carry out the intent of this Agreement. In addition, Lessee hereby authorizes
Lessor to file a financing statement and amendments thereto describing the
Equipment described in any and all Schedules now and hereafter executed pursuant
hereto and adding any other collateral described therein and containing any
other information required by the applicable Uniform Commercial Code. Lessee
irrevocably grants to Lessor the power to sign Lessee's name and generally to
act on behalf of Lessee to execute and file financing statements and other
documents pertaining to any or all of the Equipment. All notices required to be
given hereunder shall be deemed adequately given if sent by registered or
certified mail to the addressee at its address stated herein, or at such other
place as such addressee may have specified in writing. This Agreement and any
Schedule and Annexes thereto constitute the entire agreement of the parties with
respect to the subject matter hereof. NO VARIATION OR MODIFICATION OF THIS
AGREEMENT OR ANY WAIVER OF ANY OF ITS PROVISIONS OR CONDITIONS, SHALL BE VALID
UNLESS IN WRITING AND SIGNED BY AN AUTHORIZED REPRESENTATIVE OF THE PARTIES
HERETO.
(d) If Lessee does not comply with any provision of this Agreement, Lessor
shall have the right, but shall not be obligated, to effect such compliance, in
whole or in part. All reasonable amounts spent and obligations incurred or
assumed by Lessor in effecting such compliance shall constitute additional rent
due to Lessor. Lessee shall pay the additional rent within five days after the
date Lessor sends notice to Lessee requesting payment. Lessor's effecting such
compliance shall not be a waiver of Lessee's default.
(e) Any rent or other amount not paid to Lessor when due shall bear
interest, from the due date until paid, at the lesser of eighteen percent (18%)
per annum or the maximum rate allowed by law. Any provisions in this Agreement
and any Schedule that are in conflict with any statute, law or applicable rule
shall be deemed omitted, modified or altered to conform thereto.
(f) Lessee hereby irrevocably authorizes Lessor to adjust the Capitalized
Lessor's Cost up or down by no more than ten percent (10%) within each Schedule
to account for equipment change orders, equipment returns, invoicing errors, and
similar matters. Lessee acknowledges and agrees that the rent shall be adjusted
as a result of the change in the Capitalized Lessor's Cost. Lessor shall send
Lessee a written notice stating the final Capitalized Lessor's Cost, if it has
changed.
(g) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL IN ALL RESPECTS BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH, THE
INTERNAL LAWS OF THE STATE OF CONNECTICUT (WITHOUT REGARD TO THE CONFLICT OF
LAWS PRINCIPLES OF SUCH STATE), INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY
AND PERFORMANCE, REGARDLESS OF THE LOCATION OF THE EQUIPMENT.
(h) Any cancellation or termination by Lessor, pursuant to the provisions
of this Agreement, any Schedule, supplement or amendment hereto, of the lease of
any Equipment hereunder, shall not release Lessee from any then outstanding
obligations to Lessor hereunder.
(i) To the extent that any Schedule would constitute chattel paper, as
such term is defined in the Uniform Commercial Code as in effect in any
applicable jurisdiction, no security interest therein may be created through the
transfer or possession of this Agreement in and of itself without the transfer
or possession of the original of a Schedule executed pursuant to this Agreement
and incorporating this Agreement by reference, and no security interest in this
Agreement and a Schedule may be created by the transfer or possession of any
counterpart of the Schedule other than the original thereof; which shall be
identified as the document marked "Original" and all other counterparts shall be
marked "Duplicate".
IN WITNESS WHEREOF, Lessee and Lessor have caused this Agreement to be
executed by their duly authorized representatives as of the date first above
written.
LESSOR: LESSEE:
GENERAL ELECTRIC CAPITAL CORPORATION PREDIX PHARMACEUTICALS, INC.
By: /s/ XXXX XXXX By: /s/ XXXX XXXXXX
----------------------------------- ----------------------------
Name: Xxxx Xxxx Name: Xxxx Xxxxxx
Title: Senior Vice President Title: Senior Vice President
BIOTECH EQUIPMENT SCHEDULE
SCHEDULE NO. 001
DATED THIS 12/30/02
TO MASTER LEASE AGREEMENT
DATED AS OF DECEMBER 3, 2002
LESSOR & MAILING ADDRESS: LESSEE & MAILING ADDRESS:
General Electric Capital Corporation Predix Pharmaceuticals, Inc.
000 Xxxxxxx 0 Xxxxx 00 10 K Xxxx Street
Norwalk, CT 06851-1177 Xxxxxx, XX 00000
This Schedule is executed pursuant to, and incorporates by reference the terms
and conditions of, and capitalized terms not defined herein shall have the
meanings assigned to them in, the Master Lease Agreement identified above
("AGREEMENT" said Agreement and this Schedule being collectively referred to as
"LEASE"). This Schedule, incorporating by reference the Agreement, constitutes a
separate instrument of lease.
A. EQUIPMENT: Subject to the terms and conditions of the Lease, Lessor agrees
to Lease to Lessee the Equipment described below (the "EQUIPMENT").
NUMBER CAPITALIZED
OF UNITS LESSOR'S COST MANUFACTURER SERIAL NUMBER MODEL AND TYPE OF EQUIPMENT
-------- ------------- ------------ ------------- ---------------------------
1 $243,652.00 Varian, Inc. 310036293 Mercury Plus 400 High
Resolution Console System
B. FINANCIAL TERMS
1. Advance Rent (if any): $ 6,895.35
2. Capitalized Lessor's Cost: $ 243,652.00
3. Basic Term (No. of Months): 36 MONTHS.
4. Basic Term Lease Rate Factor: 2.829999
5. Basic Term Commencement Date: 1/1/03
6. Lessee Federal Tax ID No.: 00-0000000
7. Last Delivery Date: 12/30/02
8. Daily Lease Rate Factor: .0943
9. First Termination Date: N/A (_____) months after the Basic Term
Commencement Date.
10. Interim Rent: For the period from and including the Lease Commencement
Date to but not including the Basic Term Commencement Date ("Interim
Period"), Lessee shall pay as rent ("Interim Rent") for each unit of
Equipment, the product of the Daily Lease Rate Factor times the
Capitalized Lessor's Cost of such unit times the number of days in the
Interim Period. Interim Rent shall be due on JANUARY 1, 2003.
11. Basic Term Rent. Commencing on 1/1/03 and on the same day of each month
thereafter (each, a "Rent Payment Date") during the Basic Term, Lessee
shall pay as rent ("Basic
Term Rent") the product of the Basic Term Lease Rate Factor times the
Capitalized Lessor's Cost of all Equipment on this Schedule.
C. TAX BENEFITS Depreciation Deductions:
1. Depreciation method is the 200 % declining balance method, switching to
straight line method for the 1st taxable year for which using the straight line
method with respect to the adjusted basis as of the beginning of such year will
yield a larger allowance, taking into account the 30% special depreciation
allowance and basis adjustment under Section 168(k)(1) of the code.
2. Recovery Period: FIVE (5) YEARS.
3. Basis: 100 % of the Capitalized Lessor's Cost.
D. PROPERTY TAX
PROPERTY TAX NOT APPLICABLE ON EQUIPMENT LOCATED IN MASSACHUSETTS.
Lessor may notify Lessee (and Lessee agrees to follow such notification)
regarding any changes in property tax reporting and payment
responsibilities.
E. ARTICLE 2A NOTICE
IN ACCORDANCE WITH THE REQUIREMENTS OF ARTICLE 2A OF THE UNIFORM
COMMERCIAL CODE AS ADOPTED IN THE APPLICABLE STATE, LESSOR HEREBY MAKES
THE FOLLOWING DISCLOSURES TO LESSEE PRIOR TO EXECUTION OF THE LEASE, (A)
THE PERSON(S) SUPPLYING THE EQUIPMENT IS VARIAN, INC. (THE "SUPPLIER(S)"),
(B) LESSEE IS ENTITLED TO THE PROMISES AND WARRANTIES, INCLUDING THOSE OF
ANY THIRD PARTY, PROVIDED TO THE LESSOR BY SUPPLIER(S), WHICH IS SUPPLYING
THE EQUIPMENT IN CONNECTION WITH OR AS PART OF THE CONTRACT BY WHICH
LESSOR ACQUIRED THE EQUIPMENT AND (C) WITH RESPECT TO SUCH EQUIPMENT,
LESSEE MAY COMMUNICATE WITH SUPPLIER(S) AND RECEIVE AN ACCURATE AND
COMPLETE STATEMENT OF SUCH PROMISES AND WARRANTIES, INCLUDING ANY
DISCLAIMERS AND LIMITATIONS OF THEM OR OF REMEDIES. TO THE EXTENT
PERMITTED BY APPLICABLE LAW, LESSEE HEREBY WAIVES ANY AND ALL RIGHTS AND
REMEDIES CONFERRED UPON A LESSEE IN ARTICLE 2A AND ANY RIGHTS NOW OR
HEREAFTER CONFERRED BY STATUTE OR OTHERWISE WHICH MAY LIMIT OR MODIFY ANY
OF LESSOR'S RIGHTS OR REMEDIES UNDER THE DEFAULT AND REMEDIES SECTION OF
THE AGREEMENT.
F. STIPULATED LOSS AND TERMINATION VALUE TABLE*
Termination Stipulated Termination Stipulated
Rental Value Loss Value Value Loss Value
Basic Percentage Percentage Rental Percentage Percentage
------ ----------- ---------- ------ ----------- ----------
1 103.586 107.493 19 65.688 69.389
2 101.835 105.731 20 63.365 67.055
3 99.964 103.849 21 61.026 64.704
4 97.981 101.854 22 58.668 62.336
5 95.978 99.840 23 56.282 59.938
6 93.956 97.806 24 53.877 57.522
7 91.914 95.753 25 51.455 55.088
8 89.847 93.674 26 49.002 52.623
9 87.760 91.576 27 46.519 50.129
10 85.653 89.458 28 44.020 47.618
11 83.520 87.313 29 41.505 45.092
12 81.367 85.148 30 38.975 42.550
13 79.193 82.963 31 36.428 39.992
14 76.992 80.751 32 33.858 37.410
15 74.764 78.511 33 31.263 34.805
16 72.520 76.255 34 28.645 32.175
17 70.259 73.983 35 26.002 29.521
18 67.982 71.695 36 23.337 26.844
*The Stipulated Loss Value or Termination Value for any unit of Equipment shall
be the Capitalized Lessor's Cost of such unit multiplied by the appropriate
percentage derived from the above table. In the event that the Lease is for any
reason extended, then the last percentage figure shown above shall control
throughout any such extended term.
G. MODIFICATIONS AND ADDITIONS FOR THIS SCHEDULE ONLY
For purposes of this Schedule only, the Agreement is amended as follows:
1. The INDEMNIFICATION Section subsection (b) of the Lease is hereby
amended by deleting the word "and" immediately preceding "(ii)" on the second
line thereof and inserting the following at the end thereof:
; (iii) each item of Equipment constitutes "qualified property" pursuant
to Section 168(k) of the Internal Revenue Code of 1986, as now and
hereafter amended (the "Code"), and is eligible for the additional
first-year depreciation deduction equal to thirty percent (30%) of the
Capitalized Lessor's Cost of the Equipment contemplated by the Code; (iv)
the Equipment shall be treated as originally placed in service not earlier
than the date of the execution and delivery of this Schedule, or in the
event the transaction is a sale-leaseback transaction, Lessee shall not
have placed in service the Equipment subject to this Lease at any time
prior to three months before the execution and delivery of this Schedule;
(v) Lessee has not arranged to purchase, and Lessor is not purchasing the
Equipment pursuant to a binding written contract entered into before
September 11, 2001,
and (vi) each item of Equipment shall be placed in service before January
1, 2005.
2. The LEASING Section subsection (b) of the Lease is hereby deleted in
its entirety and the following substituted in its stead:
b) The obligation of Lessor to purchase the Equipment from Lessee and to
lease the same to Lessee shall be subject to receipt by Lessor, on or
prior to the earlier of the Lease Commencement Date or Last Delivery Date
therefor, of each of the following documents in form and substance
satisfactory to Lessor: (i) a Schedule for the Equipment (ii) evidence of
insurance which complies with the requirements of the INSURANCE Section of
the Lease, and (iii) such other documents as Lessor may reasonably
request. Once the Schedule is signed, the Lessee may not cancel the Lease.
3. The DELIVERY, USE AND OPERATION Section subsection (a) of the Lease
shall be deleted and the following substituted in its stead:
The parties acknowledge that this is a sale/leaseback transaction and the
Equipment is in Lessee's possession as of the Lease Commencement Date.
4. XXXX OF SALE
Lessee, in consideration of the Lessor's payment of the amount set forth
in B 2. above, which includes any applicable sales taxes (which payment Lessee
acknowledges), hereby grants, sells, assigns, transfers and delivers to Lessor
the Equipment along with whatever claims and rights Seller may have against the
manufacturer and/or Supplier of the Equipment, including but not limited to all
warranties and representations. At Lessors request Lessee will cause Supplier to
deliver to Lessor a written statement wherein the Supplier (i) consents to the
assignment to Lessor of whatever claims and rights Lessee may have against the
Supplier, (ii) agrees not to retain any security interest, lien or other
encumbrance in or upon the Equipment at any time, and to execute such documents
as Lessor may request to evidence the release of any such encumbrance, and (iii)
represents and warrants to Lessor (x) that Supplier has previously conveyed full
title to the Equipment to Lessee, (y) that the Equipment was delivered to Lessee
and installation completed, and (z) that the final purchase price of the
Equipment (or a specified portion of such purchase price) has been paid by
Lessee.
Lessor is purchasing the Equipment for leasing back to Lessee pursuant to
the Lease. Lessee represents and warrants to Lessor that (i) Lessor will acquire
by the terms of this Xxxx of Sale good title to the Equipment free from all
liens and encumbrances whatsoever; (ii) Lessee has the right to sell the
Equipment; and (iii) the Equipment has been delivered to Lessee in good order
and condition, and conforms to the specifications, requirements and standards
applicable thereto; and (iv) the equipment has been accurately labeled,
consistent with the requirements of 40 CFR part 82 Subpart E, with respect to
products manufactured with a controlled (ozone-depleting) substance.
Lessee agrees to save and hold harmless Lessor from and against any and
all federal, state, municipal and local license fees and taxes of any kind or
nature, including, without limiting the generality of the foregoing, any and all
excise, personal property, use and sales taxes, and
from and against any and all liabilities, obligations, losses, damages,
penalties, claims, actions and suits resulting therefrom and imposed upon,
incurred by or asserted against Lessor as a consequence of the sale of the
Equipment to Lessor.
5. ACCEPTANCE
Pursuant to the provisions of the Lease, as it relates to this Schedule,
Lessee hereby certifies and warrants that (i) all Equipment listed above has
been delivered and installed (if applicable); (ii) Lessee has inspected the
Equipment, and all such testing as it deems necessary has been performed by
Lessee, Supplier or the manufacturer; and (iii) Lessee accepts the Equipment for
all purposes of the Lease, the purchase documents and all attendant documents.
Lessee does further certify that as of the date hereof (i) Lessee is not
in default under the Lease; (ii) the representations and warranties made by
Lessee pursuant to or under the Lease are true and correct on the date hereof
and (iii) Lessee has reviewed and approves of the purchase documents for the
Equipment, if any.
6. EQUIPMENT SPECIFIC PROVISIONS
The MAINTENANCE Section of the Lease is amended by adding the following as
the fifth sentence in subsection (a):
Lessee agrees that upon return of the Equipment, it will comply with all
original manufacturer's performance specifications for new Equipment without
expense to Lessor. Lessee shall, if requested by Lessor, obtain a certificate or
service report from the manufacturer attesting to such condition.
Each reference contained in this Agreement to:
(a) "Adverse Environmental Condition" shall refer to (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.
(b) "Affiliate" shall refer, with respect to any given Person, to any Person
that directly or indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with, such Person.
(c) "Contaminant" shall refer to those substances which are regulated by or form
the basis of liability under any Environmental Law, including, without
limitation, asbestos, polychlorinated biphenyls ("PCB's"), and radioactive
substances, or other material or substance which has in the
past or could in the future constitute a health, safety or environmental hazard
to any Person, property or natural resources.
(d) "Environmental Claim" shall refer to any accusation, allegation, notice of
violation, claim, demand, abatement or other order on direction (conditional or
otherwise) by any governmental authority or any Person for personal injury
(including sickness, disease or death), tangible or intangible property damage,
damage to the environment or other adverse effects on the environment, or for
fines, penalties or restrictions, resulting from or based upon any Adverse
Environmental Condition.
(e) "Environmental Emission" shall refer to any actual or threatened release,
spill, emission, leaking, pumping, injection, deposit, 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.
(f) "Environmental Law" shall mean any federal, foreign, state or local law,
rule or regulation pertaining to the protection of the environment, including,
but not limited to, the Comprehensive Environmental Response, Compensation, and
Liability Act ("CERCLA") (42 U.S.C. Section 9601 et seq.), the Hazardous
Material Transportation Act (49 U.S.C. Section 1801 et seq .), the Federal Water
Pollution Control Act (33 U.S.C. Section 1251 et seq .), the Resource
Conservation and Recovery Act (42 U.S.C. Section 6901 et seq .), the Clean Air
Act (42 U.S.C. Section 7401 et seq .), the Toxic Substances Control Act (15
U.S.C. Section 2601 et seq .), the Federal Insecticide, Fungicide, and
Rodenticide Act (7 U.S.C. Section 1361 et seq .), and the Occupational Safety
and Health Act (19 U.S.C. Section 651 et seq .), as these laws have been amended
or supplemented, and any analogous foreign, federal, state or local statutes,
and the regulations promulgated pursuant thereto.
(g) "Environmental Loss" shall mean any loss, cost, damage, liability,
deficiency, fine, penalty or expense (including, without limitation, reasonable
attorneys' 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.
(h) "Person" shall include any individual, partnership, corporation, trust,
unincorporated organization, government or department or agency thereof and any
other entity.
Lessee shall fully and promptly pay, perform, discharge, defend, indemnify and
hold harmless Lessor and its Affiliates, successors and assigns, directors,
officers, employees and agents from and against any Environmental Claim or
Environmental Loss.
The provisions of this Schedule shall survive any expiration or termination of
the Lease and shall be enforceable by Lessor, its successors and assigns.
The MAINTENANCE Section subsection (a) of the Lease shall be amended by adding
the following at the end thereof:
RETURN PROVISIONS: In addition to the provisions provided for in the RETURN OF
EQUIPMENT Section of the Lease, and provided that Lessee has elected not to
exercise its option to purchase the Equipment Lessee shall, at its expense:
(a) at least one hundred eighty (180) days and not more than two hundred seventy
(270) days prior to expiration or earlier termination of the Lease, provide to
Lessor a detailed inventory of all components of the Equipment. The inventory
should include, but not be limited to, a listing of model and serial numbers for
all components comprising the Equipment;
(b) at least one hundred eighty (180) days prior to expiration or earlier
termination of the Lease, with reference to computer based equipment comprising
the Equipment, provide to Lessor a detailed listing of all internal circuit
boards by both the model and serial number for all hardware comprising the
Equipment and a listing of all software features listed individually;
(c) at least one hundred eighty (180) days prior to expiration or earlier
termination of the Lease, upon receiving reasonable notice from Lessor, provide
or cause the vendor(s) or manufacturer(s) to provide to Lessor the following
documents: (i) one set of service manuals, and operating manuals including
replacements and/or additions thereto, such that all documentation is completely
up-to-date; (ii) one set of documents, detailing equipment configuration,
operating requirements, maintenance records, and other technical data concerning
the set-up and operation of the Equipment, including replacements and/or
additions thereto, such that all documentation is completely up-to-date;
(d) at least one hundred eighty (180) days prior to expiration or earlier
termination of the Lease, upon receiving reasonable notice from Lessor, make the
Equipment available for on-site operational inspections by potential purchasers,
under power, and provide personnel, power and other requirements necessary to
demonstrate electrical and mechanical systems for each item of the Equipment;
(e) at least one hundred eighty (180) days prior to expiration or earlier
termination of the Lease, cause manufacturer's representative or qualified
equipment maintenance provider, acceptable to Lessor, (the "Authorized
Inspector") to perform a comprehensive physical inspection, including testing
all material and workmanship of the Equipment and ensure all Equipment and
equipment operations conform to all applicable local, state, and federal laws,
health and safety guidelines including the then current FDA regulations; and if
during such inspection, examination and test, the Authorized Inspector finds any
of the material or workmanship to be defective or the Equipment not operating
within manufacturer's specifications and the then current FDA regulations, then
Lessee shall repair or replace such defective material and, after corrective
measures are completed, Lessee will provide for a follow-up inspection of the
Equipment by the Authorized Inspector as outlined in the preceding clause;
(f) have each item of Equipment returned with an in-depth field service report
detailing said inspection as outlined in Section (e) above. The report shall
certify that the Equipment has been properly inspected, examined and tested and
is operating within the manufacturer's specifications;
(g) provide that all Equipment will be cleaned and cosmetically acceptable, and
in such condition so that it may be immediately installed and placed into use in
a similar environment;
(h) properly remove or treat all rust or corrosion;
(i) ensure all items of Equipment will be completely sterilized, steam-cleaned,
and de-greased upon redelivery;
(j) properly remove all Lessee installed markings which are not necessary for
the operation, maintenance or repair of the Equipment;
(k) ensure the Equipment shall be mechanically and structurally sound, capable
of performing the functions for which the Equipment was originally designed, in
accordance with the manufacturer's published and recommended specifications;
(l) provide for the deinstallation, packing, transporting, and certifying of the
Equipment to include, but not limited to, the following: (i) the manufacturer's
representative shall de-install all Equipment (including all wire, cable and
mounting hardware) in accordance with the specifications of the manufacturer;
(ii) each item of Equipment will be returned with a certificate supplied by the
manufacturer's representative qualifying the Equipment to be in good condition
and (where applicable) to be eligible for the manufacturer's maintenance plan;
the certificate of eligibility shall be transferable to another operator of the
Equipment; (iii) the Equipment shall be packed properly and in accordance with
the manufacturer's recommendations, free from all contaminants; (iv) Lessee
shall provide for transportation of the Equipment in a manner consistent with
the manufacturer's recommendations and practices to any locations within the
continental United States as Lessor shall direct; and shall have the Equipment
unloaded at such locations; (v) Lessee shall obtain and pay for a policy of
transit insurance for the redelivery period in an amount equal to the
replacement value of the Equipment and Lessor shall be named as the loss payee
on all such policies of insurance; and (vi) Lessee shall provide insurance and
safe, secure storage for the Equipment for ninety (90) days after expiration or
earlier termination of the Lease at accessible locations satisfactory to Lessor.
H. PAYMENT AUTHORIZATION
You are hereby irrevocably authorized and directed to deliver and apply
the proceeds due under this Schedule as follows:
Company Name Address Amount
------------------------------- ------------------------------------ -----------
Predix Pharmaceuticals, Inc. 00 X Xxxx Xxxxxx, Xxxxxx, XX 00000 $190,526.25
GE Capital Corp (10% Holdback) 000 Xxxxxxx Xxxxx, Xxxxxxx, XX 00000 $ 24,365.20
OR Capital Corp (10% to Varian) 000 Xxxxxxx Xxxxx, Xxxxxxx, XX 00000 $ 24,365.20
GE Capital Corp (Advance Rent) 000 Xxxxxxx Xxxxx, Xxxxxxx, XX 00000 $ 4,395.35*
*Advance Rent $6,895.35 less $2,500.00 applied from Good Faith Deposit)
This authorization and direction is given pursuant to the same authority
authorizing the above-mentioned financing.
Except as expressly modified hereby, all terms and provisions of the
Agreement shall remain in full force and effect. This Schedule is not binding or
effective with respect to the Agreement or Equipment until executed on behalf of
Lessor and Lessee by authorized representatives of Lessor and Lessee,
respectively.
IN WITNESS WHEREOF, Lessee and Lessor have caused this Schedule to be
executed by their duly authorized representatives as of the date first above
written.
LESSOR: LESSEE:
GENERAL ELECTRIC CAPITAL CORPORATION PREDIX PHARMACEUTICALS, INC.
By: /s/ XXXX XXXX By: /s/ XXXX X. XXXXXX
----------------------------------- ---------------------------
Name: Xxxx Xxxx Name: Xxxx X. Xxxxxx
Title: Senior Vice President Title: Sr. VP, R&D
EXHIBIT A
4138217-001
COMPANY NAME: Predix Pharmaceuticals, Inc.
EQUIPMENT LOCATION(S): 10K Xxxx Xxxxxx
Xxxxxx, XX 00000
CUSTOMER'S
INTERNAL
INV. TAG # (IF AMT. VENDOR XLD EQUIP >90
ITEM SUPPLIER INVOICE # INV DATE DESCRIPTION QTY SERIAL # APPLICABLE) FINANCED TOTAL CK # CK? CK AMT. CODE DAYS?
---- -------- --------- ---------- ------------ ------------- ----------- ----------- ----------- ---- --- ---------- ----- ------
MERCURY plus
400 High
Resolution
1 Varian 9005603 12/18/2002 Console
System 1 310036293 $243,652.00 LAB
10% Deposit
($24,365.20) $ 0.00 4245 N $24,365.20 LAB N
10% Due on
Invoice
($24,365.20) $ 0.00 LAB
$243,652.00
$ 0.00
-----------
FUNDING TOTAL $243,652.00 $243,652.00
===========
EQUIPMENT CODE LIST
LAB = Lab Equipment
COMP = Computer Hardware
OFC = Furniture, Telephone, Fax, etc.
SOFT = Computer Software, Tooling/Molds,
Tax, Freight, Extended Warranties, Service Contracts, Etc.
EQUIP. TOTAL
CODE (CAT.) % OF TOTAL
------ ---------- ----------
LAB 243,652.00 100%
COMP 0.00 0%
OFC 0.00 0%
SOFT 0 0%
TOTAL 243,652.00 100%
PREDIX PHARMACEUTICALS, INC.
BY: /s/ XXXX X. XXXXXX
-------------------------
TITLE: SVP R+D
*LEAS8760*
BIOTECH EQUIPMENT SCHEDULE
SCHEDULE NO. 002
DATED THIS 4/7/03
TO MASTER LEASE AGREEMENT
DATED AS OF DECEMBER 3, 2002
LESSOR & MAILING ADDRESS: LESSEE & MAILING ADDRESS:
General Electric Capital Corporation Predix Pharmaceuticals, Inc.
000 Xxxxxxx 0 Xxxxx 00 10 K Xxxx Street
Norwalk, CT 06851-1177 Xxxxxx, XX 00000
This Schedule is executed pursuant to, and incorporates by reference the terms
and conditions of, and capitalized terms not defined herein shall have the
meanings assigned to them in, the Master Lease Agreement identified above
("AGREEMENT" said Agreement and this Schedule being collectively referred to as
"LEASE"). This Schedule, incorporating by reference the Agreement, constitutes a
separate instrument of lease.
A. EQUIPMENT: Subject to the terms and conditions of the Lease, Lessor agrees to
Lease to Lessee the Equipment described below (the "EQUIPMENT").
NUMBER CAPITALIZED LESSOR'S
OF UNITS COST MANUFACTURER SERIAL NUMBER MODEL AND TYPE OF EQUIPMENT
-------- -------------------- ------------ ------------- ---------------------------
1 $152,395.00 Thermo Xxxxxxxx LCQAD-24000
1 $ 54,291.00 Xxxxxx, Inc. Prep HPLC to Xxxxxxxx LCQ
B. FINANCIAL TERMS
1. Advance Rent (if any): $ 5,707.54
2. Capitalized Lessor's Cost: $ 206,686.00
3. Basic Term (No. of Months): 36 MONTHS.
4. Basic Term Lease Rate Factor: 2.7614
5. Basic Term Commencement Date:
6. Lessee Federal Tax ID No.: 000000000
7. Last Delivery Date: APRIL 7, 2003
8. Daily Lease Rate Factor: .0920
9. First Termination Date: N/A (_____) months after the Basic Term
Commencement Date.
10. Interim Rent: For the period from and including the Lease Commencement
Date to but not including the Basic Term Commencement Date ("Interim
Period"), Lessee shall pay as rent ("Interim Rent") for each unit of
Equipment, the product of the Daily Lease Rate Factor times the
Capitalized Lessor's Cost of such unit times the number of days in the
Interim Period. Interim Rent shall be due on May 1, 2003.
11. Basic Term Rent. Commencing on 5/1/03 and on the same day of each month
thereafter (each, a "Rent Payment Date") during the Basic Term, Lessee
shall pay as rent ("Basic
Term Rent") the product of the Basic Term Lease Rate Factor times the
Capitalized Lessor's Cost of all Equipment on this Schedule.
C. TAX BENEFITS Depreciation Deductions:
1. Depreciation method is the 200 % declining balance method, switching to
straight line method for the 1st taxable year for which using the straight line
method with respect to the adjusted basis as of the beginning of such year will
yield a larger allowance, taking into account the 30% special depreciation
allowance and basis adjustment under Section 168(k)(1) of the code.
2. Recovery Period: FIVE (5) YEARS.
3. Basis: 100 % of the Capitalized Lessor's Cost.
D. PROPERTY TAX
PROPERTY TAX NOT APPLICABLE ON EQUIPMENT LOCATED IN MASSACHUSETTS.
Lessor may notify Lessee (and Lessee agrees to follow such notification)
regarding any changes in property tax reporting and payment
responsibilities.
E. ARTICLE 2A NOTICE
IN ACCORDANCE WITH THE REQUIREMENTS OF ARTICLE 2A OF THE UNIFORM
COMMERCIAL CODE AS ADOPTED IN THE APPLICABLE STATE, LESSOR HEREBY MAKES
THE FOLLOWING DISCLOSURES TO LESSEE PRIOR TO EXECUTION OF THE LEASE, (A)
THE PERSON(S) SUPPLYING THE EQUIPMENT IS Thermo Xxxxxxxx & Xxxxxx, Inc.
(THE "SUPPLIER(S)"), (B) LESSEE IS ENTITLED TO THE PROMISES AND
WARRANTIES, INCLUDING THOSE OF ANY THIRD PARTY, PROVIDED TO THE LESSOR BY
SUPPLIER(S), WHICH IS SUPPLYING THE EQUIPMENT IN CONNECTION WITH OR AS
PART OF THE CONTRACT BY WHICH LESSOR ACQUIRED THE EQUIPMENT AND (C) WITH
RESPECT TO SUCH EQUIPMENT, LESSEE MAY COMMUNICATE WITH SUPPLIER(S) AND
RECEIVE AN ACCURATE AND COMPLETE STATEMENT OF SUCH PROMISES AND
WARRANTIES, INCLUDING ANY DISCLAIMERS AND LIMITATIONS OF THEM OR OF
REMEDIES. TO THE EXTENT PERMITTED BY APPLICABLE LAW, LESSEE HEREBY WAIVES
ANY AND ALL RIGHTS AND REMEDIES CONFERRED UPON A LESSEE IN ARTICLE 2A AND
ANY RIGHTS NOW OR HEREAFTER CONFERRED BY STATUTE OR OTHERWISE WHICH MAY
LIMIT OR MODIFY ANY OF LESSOR'S RIGHTS OR REMEDIES UNDER THE DEFAULT AND
REMEDIES SECTION OF THE AGREEMENT.
F. STIPULATED LOSS AND TERMINATION VALUE TABLE*
Termination Stipulated Termination Stipulated
Rental Value Loss Value Value Loss Value
Interim Percentage Percentage Rental Percentage Percentage
------- ---------- ---------- ------ ---------- ----------
1 103.093 107.014
Basic
1 101.711 105.646 19 63.817 68.060
2 99.759 103.711 20 61.535 65.795
3 97.791 101.760 21 59.234 63.510
4 95.804 99.790 22 56.912 61.205
5 93.800 97.803 23 54.570 58.881
6 91.778 95.799 24 52.208 56.535
7 89.738 93.776 25 49.825 54.170
8 87.680 91.735 26 47.422 51.784
9 85.605 89.677 27 44.997 49.376
10 83.511 87.599 28 42.552 46.948
11 81.397 85.502 29 40.086 44.499
12 79.264 83.386 30 37.598 42.028
13 77.111 81.251 31 35.089 39.536
14 74.939 79.096 32 32.557 37.022
15 72.751 76.925 33 30.004 34.486
16 70.547 74.738 34 27.429 31.928
17 68.323 72.531 35 24.832 29.347
18 66.080 70.305 36 22.212 26.744
*The Stipulated Loss Value or Termination Value for any unit of Equipment shall
be the Capitalized Lessor's Cost of such unit multiplied by the appropriate
percentage derived from the above table. In the event that the Lease is for any
reason extended, then the last percentage figure shown above shall control
throughout any such extended term.
G. MODIFICATIONS AND ADDITIONS FOR THIS SCHEDULE ONLY
For purposes of this Schedule only, the Agreement is amended as follows:
1. The INDEMNIFICATION Section subsection (b) of the Lease is hereby
amended by deleting the word "and" immediately preceding "(ii)" on the second
line thereof and inserting the following at the end thereof:
; (iii) each item of Equipment constitutes "qualified property" pursuant
to Section 168(k) of the Internal Revenue Code of 1986, as now and
hereafter amended (the "Code"), and is eligible for the additional
first-year depreciation deduction equal to thirty percent (30%) of the
Capitalized Lessor's Cost of the Equipment contemplated by the Code; (iv)
the Equipment shall be treated as originally placed in service not earlier
than the date of the execution and delivery of this Schedule, or in the
event the transaction is a sale-leaseback transaction, Lessee shall not
have placed in service the Equipment subject to this Lease at any time
prior to three months before the execution and delivery of this Schedule;
(v) Lessee has not arranged to purchase, and Lessor is not purchasing the
Equipment pursuant to a binding written contract entered into before
September 11, 2001, and (vi) each item of Equipment shall be placed in
service before January 1, 2005.
2. The REPRESENTATIONS AND WARRANTIES OF LESSEE Section of the Lease shall
be amended to add the following sentence at the end thereof:
(j) Lessee is and will remain in full compliance with all laws and
regulations applicable to it including, without limitation, (i) ensuring
that no person who owns a controlling interest in or otherwise controls
Lessee is or shall be (Y) listed on the Specially Designated Nationals and
Blocked Person List maintained by the Office of Foreign Assets Control
("OFAC"), Department of the Treasury, and/or any other similar lists
maintained by OFAC pursuant to any authorizing statute, Executive Order or
regulation or (Z) a person designated under Section 1(b), (c) or (d) of
Executive Order No. 13224 (September 23, 2001), any related enabling
legislation or any other similar Executive Orders, and (ii) compliance
with all applicable Bank Secrecy Act ("BSA") laws, regulations and
government guidance on BSA compliance and on the prevention and detection
of money laundering violations.
3. The LEASING Section subsection (b) of the Lease is hereby deleted in
its entirety and the following substituted in its stead:
(b) The obligation of Lessor to purchase the Equipment from Lessee and to
lease the same to Lessee shall be subject to receipt by Lessor, on or
prior to the earlier of the Lease Commencement Date or Last Delivery Date
therefor, of each of the following documents in form and substance
satisfactory to Lessor: (i) a Schedule for the Equipment (ii) evidence of
insurance which complies with the requirements of the INSURANCE Section of
the Lease, and (iii) such other documents as Lessor may reasonably
request. Once the Schedule is signed, the Lessee may not cancel the Lease.
4. The DELIVERY, USE AND OPERATION Section subsection (a) of the Lease
shall be deleted and the following substituted in its stead:
The parties acknowledge that this is a sale/leaseback transaction and the
Equipment is in Lessee's possession as of the Lease Commencement Date.
5. XXXX OF SALE
Lessee, in consideration of the Lessor's payment of the amount set forth
in B 2. above, which includes any applicable sales taxes (which payment Lessee
acknowledges), hereby grants, sells, assigns, transfers and delivers to Lessor
the Equipment along with whatever claims and rights Seller may have against the
manufacturer and/or Supplier of the Equipment, including but not limited to all
warranties and representations. At Lessors request Lessee will cause Supplier to
deliver to Lessor a written statement wherein the Supplier (i) consents to the
assignment to Lessor of whatever claims and rights Lessee may have against the
Supplier, (ii) agrees not to retain any security interest, lien or other
encumbrance in or upon the Equipment at any time, and to execute such documents
as lessor may request to evidence the release of any such encumbrance, and (iii)
represents and warrants to Lessor (x) that Supplier has previously conveyed full
title to the Equipment to Lessee, (y) that the Equipment was delivered to Lessee
and installation completed, and (z) that the final purchase price of the
Equipment (or a specified portion of such purchase price) has been paid by
Lessee.
Lessor is purchasing the Equipment for leasing back to Lessee pursuant to
the Lease. Lessee represents and warrants to Lessor that (i) Lessor will acquire
by the terms of this Xxxx of Sale good title to the Equipment free from all
liens and encumbrances whatsoever; (ii) Lessee has the right to sell the
Equipment; and (iii) the Equipment has been delivered to Lessee in good order
and condition, and conforms to the specifications, requirements and standards
applicable thereto; and (iv) the equipment has been accurately labeled,
consistent with the requirements of 40 CFR part 82 Subpart E, with respect to
products manufactured with a controlled (ozone-depleting) substance.
Lessee agrees to save and hold harmless Lessor from and against any and
all federal, state, municipal and local license fees and taxes of any kind or
nature, including, without limiting the generality of the foregoing, any and all
excise, personal property, use and sales taxes, and from and against any and all
liabilities, obligations, losses, damages, penalties, claims, actions and suits
resulting therefrom and imposed upon, incurred by or asserted against Lessor as
a consequence of the sale of the Equipment to Lessor.
6. ACCEPTANCE
Pursuant to the provisions of the Lease, as it relates to this Schedule,
Lessee hereby certifies and warrants that (i) all Equipment listed above has
been delivered and installed (if applicable); (ii) Lessee has inspected the
Equipment, and all such testing as it deems necessary has been performed by
Lessee, Supplier or the manufacturer; and (iii) Lessee accepts the Equipment for
all purposes of the Lease, the purchase documents and all attendant documents.
Lessee does further certify that as of the date hereof (i) Lessee is not
in default under the Lease; (ii) the representations and warranties made by
Lessee pursuant to or under the Lease are true and correct on the date hereof
and (iii) Lessee has reviewed and approves of the purchase documents for the
Equipment, if any.
7. EQUIPMENT SPECIFIC PROVISIONS
The MAINTENANCE Section of the Lease is amended by adding the following as
the fifth sentence in subsection (a):
Lessee agrees that upon return of the Equipment, it will comply with all
original manufacturer's performance specifications for new Equipment without
expense to Lessor. Lessee shall, if requested by Lessor, obtain a certificate or
service report from the manufacturer attesting to such condition.
Each reference contained in this Agreement to:
(a) "Adverse Environmental Condition" shall refer to (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,
(b) "Affiliate" shall refer, with respect to any given Person, to any Person
that directly or indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with, such Person.
(c) "Contaminant" shall refer to those substances which are regulated by or form
the basis of liability under any Environmental Law, including, without
limitation, asbestos, polychlorinated biphenyls ("PCB's"), and radioactive
substances, or other material or substance which has in the past or could in the
future constitute a health, safety or environmental hazard to any Person,
property or natural resources.
(d) "Environmental Claim" shall refer to any accusation, allegation, notice of
violation, claim, demand, abatement or other order on direction (conditional or
otherwise) by any governmental authority or any Person for personal injury
(including sickness, disease or death), tangible or intangible property damage,
damage to the environment or other adverse effects on the environment, or for
fines, penalties or restrictions, resulting from or based upon any Adverse
Environmental Condition.
(e) "Environmental Emission" shall refer to any actual or threatened release,
spill, emission, leaking, pumping, injection, deposit, 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.
(f) "Environmental Law" shall mean any federal, foreign, state or local law,
rule or regulation pertaining to the protection of the environment, including,
but not limited to, the Comprehensive Environmental Response, Compensation, and
Liability Act ("CERCLA") (42 U.S.C. Section 9601 et seq.), the Hazardous
Material Transportation Act (49 U.S.C. Section 1801 et seq .), the Federal Water
Pollution Control Act (33 U.S.C. Section 1251 et seq .), the Resource
Conservation and Recovery Act (42 U.S.C. Section 6901 et seq .), The Clean Air
Act (42 U.S.C. Section 7401 et seq .), the Toxic Substances Control Act (15
U.S.C. Section 2601 et seq .), the Federal Insecticide, Fungicide, and
Rodenticide Act (7 U.S.C. Section 1361 et seq .), and the Occupational Safety
and Health Act (19 U.S.C. Section 651 et seq .), as these laws have been amended
or supplemented, and any analogous foreign, federal, state or local statutes,
and the regulations promulgated pursuant thereto.
(g) "Environmental Loss" shall mean any loss, cost, damage, liability,
deficiency, fine, penalty or expense (including, without limitation, reasonable
attorneys' 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.
(h) "Person" shall include any individual, partnership, corporation, trust,
unincorporated organization, government or department or agency thereof and any
other entity.
Lessee shall fully and promptly pay, perform, discharge, defend, indemnify and
hold harmless Lessor and its Affiliates; successors and assigns, directors,
officers, employees and agents from and against any Environmental Claim or
Environmental Loss.
The provisions of this Schedule shall survive any expiration or termination of
the Lease and shall be enforceable by Lessor, its successors and assigns.
The MAINTENANCE Section subsection (a) of the Lease shall be amended by adding
the following at the end thereof:
RETURN PROVISIONS: In addition to the provisions provided for in the RETURN OF
EQUIPMENT Section of the Lease, and provided that Lessee has elected not to
exercise its option to purchase the Equipment Lessee shall, at its expense:
(a) at least one hundred eighty (180) days and not more than two hundred seventy
(270) days prior to expiration or earlier termination of the Lease, provide to
Lessor a detailed inventory of all components of the Equipment. The inventory
should include, but not be limited to, a listing of model and serial numbers for
all components comprising the Equipment;
(b) at least one hundred eighty (180) days prior to expiration or earlier
termination of the Lease, with reference to computer based equipment comprising
the Equipment, provide to Lessor a detailed listing of all internal circuit
boards by both the model and serial number for all hardware comprising the
Equipment and a listing of all software features listed individually;
(c) at least one hundred eighty (180) days prior to expiration or earlier
termination of the Lease, upon receiving reasonable notice from Lessor, provide
or cause the vendor(s) or manufacturer(s) to provide to Lessor the following
documents: (i) one set of service manuals, and operating manuals including
replacements and/or additions thereto, such that all documentation is completely
up-to-date; (ii) one set of documents, detailing equipment configuration,
operating requirements, maintenance records, and other technical data concerning
the set-up and operation of the Equipment, including replacements and/or
additions thereto, such that all documentation is completely up-to-date;
(d) at least one hundred eighty (180) days prior to expiration or earlier
termination of the Lease, upon receiving reasonable notice from Lessor, make the
Equipment available for on-site operational inspections by potential purchasers,
under power, and provide personnel, power and other requirements necessary to
demonstrate electrical and mechanical systems for each item of the Equipment;
(e) at least one hundred eighty (180) days prior to expiration or earlier
termination of the Lease, cause manufacturer's representative or qualified
equipment maintenance provider, acceptable to Lessor, (the "Authorized
Inspector") to perform a comprehensive physical inspection, including testing
all material and workmanship of the Equipment and ensure all Equipment and
equipment operations conform to all applicable local, state, and federal laws,
health and safety guidelines including the then current FDA regulations; and if
during such inspection, examination and test, the Authorized Inspector finds any
of the material or workmanship to be defective or the Equipment not operating
within manufacturer's specifications and the then current FDA regulations, then
Lessee shall repair or replace such
defective material and, after corrective measures are completed, Lessee will
provide for a follow-up inspection of the Equipment by the Authorized Inspector
as outlined in the preceding clause;
(f) have each item of Equipment returned with an in-depth field service report
detailing said inspection as outlined in Section (e) above. The report shall
certify that the Equipment has been properly inspected, examined and tested and
is operating within the manufacturer's specifications;
(g) provide that all Equipment will be cleaned and cosmetically acceptable,
and in such condition so that it may be immediately installed and placed into
use in a similar environment;
(h) properly remove or treat all rust or corrosion;
(i) ensure all items of Equipment will be completely sterilized,
steam-cleaned, and de-greased upon redelivery;
(j) properly remove all Lessee installed markings which are not necessary for
the operation, maintenance or repair of the Equipment;
(k) ensure the Equipment shall be mechanically and structurally sound, capable
of performing the functions for which the Equipment was originally designed, in
accordance with the manufacturer's published and recommended specifications;
(l) provide for the deinstallation, packing, transporting, and certifying of
the Equipment to include, but not limited to, the following: (i) the
manufacturer's representative shall de-install all Equipment (including all
wire, cable and mounting hardware) in accordance with the specifications of the
manufacturer; (ii) each item of Equipment will be returned with a certificate
supplied by the manufacturer's representative qualifying the Equipment to be in
good condition and (where applicable) to be eligible for the manufacturer's
maintenance plan; the certificate of eligibility shall be transferable to
another operator of the Equipment; (iii) the Equipment shall be packed properly
and in accordance with the manufacturer's recommendations, free from all
contaminants; (iv) Lessee shall provide for transportation of the Equipment in a
manner consistent with the manufacturer's recommendations and practices to any
locations within the continental United States as Lessor shall direct; and shall
have the Equipment unloaded at such locations; (v) Lessee shall obtain and pay
for a policy of transit insurance for the redelivery period in an amount equal
to the replacement value of the Equipment and Lessor shall be named as the loss
payee on all such policies of insurance; and (vi) Lessee shall provide insurance
and safe, secure storage for the Equipment for ninety (90) days after expiration
or earlier termination of the Lease at accessible locations satisfactory to
Lessor.
H. PAYMENT AUTHORIZATION
You are hereby irrevocably authorized and directed to deliver and apply
the proceeds due under this Schedule as follows:
COMPANY NAME ADDRESS AMOUNT
------------ ----------------------- -----------
Thermo Xxxxxxxx Xxx Xxxxxxxxx, XX 00000 $152,395.00
Gilson, Inc. Xxxxxxxxxx, XX 00000 $ 54,291.00
This authorization and direction is given pursuant to the same authority
authorizing the above-mentioned financing.
Except as expressly modified hereby, all terms and provisions of the
Agreement shall remain in full force and effect. This Schedule is not binding or
effective with respect to the Agreement or Equipment until executed on behalf of
Lessor and Lessee by authorized representatives of Lessor and Lessee,
respectively.
IN WITNESS WHEREOF, Lessee and Lessor have caused this Schedule to be
executed by their duly authorized representatives as of the date first above
written.
LESSOR: LESSEE:
GENERAL ELECTRIC CAPITAL CORPORATION PREDIX PHARMACEUTICALS, INC.
By: /s/ XXXX XXXX By: /s/ XXXXXXX XXXXXXXX
-------------------------------- ------------------------------
Name: Xxxx Xxxx Name: Xxxxxxx Xxxxxxxx, MD
Title: Senior Vice President Title: CEO/President
EXHIBIT A
TO COLLATERAL/EQUIPMENT SCHEDULE NO. _____ AND TO UCC FINANCING STATEMENTS
COMPANY NAME: Predix Pharmaceuticals, Inc.
EQUIPMENT LOCATION(s): 10K Xxxx Xxxxxx
Xxxxxx, XX 00000
CUSTOMER'S
INTERNAL
INV. TAG # (IF AMT. VENDOR XLD
ITEM SUPPLIER INVOICE # INV DATE DESCRIPTION QTY SERIAL # APPLICABLE) FINANCED TOTAL CK # CK?
---- ----------------- --------- ----------- ------------------ --- ----------- ----------- ---------- ----------- ----------- ---
1 Thermo Xxxxxxxx'x XX #000 Xxxxxxxxxxx XXXXX-00000 1 Forthcoming 152,395.00 152,395.00 Forthcoming N
152,395.00
2 Xxxxxx PO#288 Forthcoming Prep HPLC For 1 Forthcoming 49,146.00 49,146.00 Forthcoming N
Xxxxxxxx LCQ
Unipoint LC System 1 5,145.00 5,145.00
Software
54,291.00
----------
FUNDING TOTAL 206,686.00 $206,686.00
==========
INV. EQUIP >90
ITEM SUPPLIER CK AMT. CODE DAYS? COMMENTS
---- ----------------- ---------- ----- ----- ------------
1 Thermo Xxxxxxxx'x 152,395.00 LAB N NEED INVOICE
2 Xxxxxx 54,291.00 LAB N NEED INVOICE
SOFT
EQUIPMENT CODE LIST
LAB = Lab Equipment
COMP = Computer Hardware
OFC = Furniture, Telephone, Fax, etc.
TI = Tenant Improvement (Soft)
SOFT = Computer Software, Tooling/Molds, Tax, Freight, Extended Warranties,
Service Contracts, Etc.
EQUIP.
CODE TOTAL(CAT.) % OF TOTAL
--------- -------------- ----------
LAB $ 201,541.00 98%
COMP $ 0.00 0%
OFC $ 0.00 0%
TI (SOFT) $ 0.00 0%
SOFT $ 5,145.00 2%
-------------- ---
TOTAL $ 206,686.00 100%
-------------- ---
PREDIX PHARMACEUTICALS, INC.
BY: /s/ XXXXXXX XXXXXXXX
------------------------
TITLE: President & CEO
GENERAL ELECTRIC CAPITAL CORPORATION
AMENDMENT TO
MASTER LEASE AGREEMENT DATED AS OF DECEMBER 3, 2002
BY AND BETWEEN
PREDIX PHARMACEUTICALS HOLDINGS, INC., AS LESSEE
AND
GENERAL ELECTRIC CAPITAL CORPORATION, AS LESSOR
Lessee and Lessor hereby amend Master Lease Agreement dated as of December 3,
2002, all Equipment Schedules thereunder and other related documents (herein
collectively referred to as the "Agreements") to reflect Lessee's name change
from Predix Pharmaceuticals, Inc. to Predix Pharmaceuticals Holdings, Inc.
All other terms and conditions of the Agreements remain the same.
IN WITNESS WHEREOF, Lessee and Lessor have each caused this Amendment to be duly
executed in their respective names.
LESSEE: LESSOR:
PREDIX PHARMACEUTICALS HOLDINGS, INC. GENERAL ELECTRIC CAPITAL CORPORATION
F/K/A PREDIX PHARMACEUTICALS, INC.
By: /s/ XXXXXXX XXXXXXXX By: /s/ XXXX XXXX
---------------------------------- --------------------------------
Title: CEO & PRESIDENT Title: SVP
Date: 11/18/03 Date: ______________________________
BIOTECH EQUIPMENT SCHEDULE
SCHEDULE NO. 003
DATED THIS EIGHTEENTH DAY OF NOVEMBER 2003
TO MASTER LEASE AGREEMENT
DATED AS OF DECEMBER 3, 2002
LESSOR & MAILING ADDRESS: LESSEE & MAILING ADDRESS:
------------------------- -------------------------
General Electric Capital Corporation Predix Pharmaceuticals Holdings, Inc.
000 Xxxxxxx 0 Xxxxx 00 10 K Xxxx Street
Norwalk, CT 06851-1177 Xxxxxx, XX 00000
This Schedule is executed pursuant to, and incorporates by reference the terms
and conditions of, and capitalized terms not defined herein shall have the
meanings assigned to them in, the Master Lease Agreement identified above
("AGREEMENT" said Agreement and this Schedule being collectively referred to as
"LEASE"). This Schedule, incorporating by reference the Agreement, constitutes a
separate instrument of lease.
A. EQUIPMENT: Subject to the terns and conditions of the Lease, Lessor agrees
to Lease to Lessee the Equipment described below (the "EQUIPMENT").
CAPITALIZED
NUMBER OF UNITS LESSOR'S COST MANUFACTURER SERIAL NUMBER MODEL AND TYPE OF EQUIPMENT
--------------- ------------- ------------ ------------- ---------------------------
Equipment immediately listed above is located at: 00 X Xxxx Xxxxxx,
Xxxxxx, Xxxxxxxxx Xxxxxx, XX 00000
SEE EXHIBIT A ATTACHED HERETO AND MADE APART HEREOF
B. FINANCIAL TERMS
1. Advance Rent (if any): $ 3,641.12
2. Capitalized Lessor's Cost: $ 128,518.48
3. Basic Term (No. of Months): 36 MONTHS.
4. Basic Term Lease Rate Factor: 2.8304
5. Basic Term Commencement Date:
6. Lessee Federal Tax ID No.: 00-0000000
7. Last Delivery Date: 11/18/03
8. Daily Lease Rate Factor: .0943
9. First Termination Date: N/A (_--__) months after the Basic Term
Commencement Date.
10. Interim Rent: For the period from and including the Lease Commencement
Date to but not including the Basic Term Commencement Date ("Interim
Period"), Lessee shall pay as rent ("Interim Rent") for each unit of
Equipment, the product of the Daily Lease Rate Factor times the
Capitalized Lessor's Cost of such unit times the number of days in the
Interim Period. Interim Rent shall be due on NOVEMBER 30, 2003.
11. Basic Term Rent. Commencing on 12/1/03 and on the same day of each month
thereafter (each, a "Rent Payment Date") during the Basic Term, Lessee
shall pay as rent ("Basic
Term Rent") the product of the Basic Term Lease Rate Factor times the
Capitalized Lessor's Cost of all Equipment on this Schedule.
C. TAX BENEFITS Depreciation Deductions:
1. Depreciation method is the 200 % declining balance method, switching to
straight line method for the 1st taxable year for which using the straight line
method with respect to the adjusted basis as of the beginning of such year will
yield a larger allowance, taking into account the 30% or 50% special
depreciation allowance and basis adjustment under Section 168(k)(1) of the code,
whichever is applicable.
2. Recovery Period: 5 Years.
3. Basis: 100 % of the Capitalized Lessor's Cost.
D. PROPERTY TAX
PROPERTY TAX NOT APPLICABLE ON EQUIPMENT LOCATED IN MASSACHUSETTS.
Lessor may notify Lessee (and Lessee agrees to follow such notification)
regarding any changes in property tax reporting and payment
responsibilities.
E. ARTICLE 2A NOTICE
IN ACCORDANCE WITH THE REQUIREMENTS OF ARTICLE 2A OF THE UNIFORM
COMMERCIAL CODE AS ADOPTED IN THE APPLICABLE STATE, LESSOR HEREBY MAKES
THE FOLLOWING DISCLOSURES TO LESSEE PRIOR TO EXECUTION OF THE LEASE, (A)
THE PERSON(S) SUPPLYING THE EQUIPMENT IS VARIOUS (THE "SUPPLIER(S)"), (B)
LESSEE IS ENTITLED TO THE PROMISES AND WARRANTIES, INCLUDING THOSE OF ANY
THIRD PARTY, PROVIDED TO THE LESSOR BY SUPPLIER(S), WHICH IS SUPPLYING THE
EQUIPMENT IN CONNECTION WITH OR AS PART OF THE CONTRACT BY WHICH LESSOR
ACQUIRED THE EQUIPMENT AND (C) WITH RESPECT TO SUCH EQUIPMENT, LESSEE MAY
COMMUNICATE WITH SUPPLIER(S) AND RECEIVE AN ACCURATE AND COMPLETE
STATEMENT OF SUCH PROMISES AND WARRANTIES, INCLUDING ANY DISCLAIMERS AND
LIMITATIONS OF THEM OR OF REMEDIES. TO THE EXTENT PERMITTED BY APPLICABLE
LAW, LESSEE HEREBY WAIVES ANY AND ALL RIGHTS AND REMEDIES CONFERRED UPON A
LESSEE IN ARTICLE 2A AND ANY RIGHTS NOW OR HEREAFTER CONFERRED BY STATUTE
OR OTHERWISE WHICH MAY LIMIT OR MODIFY ANY OF LESSOR'S RIGHTS OR REMEDIES
UNDER THE DEFAULT AND REMEDIES SECTION OF THE AGREEMENT.
F. STIPULATED LOSS AND TERMINATION VALUE TABLE*
Termination Stipulated Termination Stipulated
Rental Value Loss Value Value Loss Value
Basic Percentage Percentage Rental Percentage Percentage
1 103.987 108.033 19 64.093 69.116
2 101.933 106.034 20 61.706 66.783
3 99.856 104.011 21 59.292 64.423
4 97.754 101.963 22 56.863 62.049
5 95.638 99.901 23 54.419 59.659
6 93.506 97.824 24 51.951 57.246
7 91.359 95.731 25 49.473 54.822
8 89.196 93.622 26 46.974 52.377
9 87.009 91.489 27 44.455 49.913
10 84.805 89.340 28 41.915 47.427
11 82.586 87.175 29 39.355 44.921
12 80.341 84.984 30 36.773 42.393
13 78.080 82.777 31 34.170 39.845
14 75.802 80.553 32 31.546 37.275
15 73.498 78.304 33 28.901 34.684
16 71.167 76.028 34 26.233 32.071
17 68.823 73.738 35 23.544 29.436
18 66.465 71.434 36 20.835 26.781
*The Stipulated Loss Value or Termination Value for any unit of Equipment shall
be the Capitalized Lessor's Cost of such unit multiplied by the appropriate
percentage derived from the above table. In the event that the Lease is for any
reason extended, then the last percentage figure shown above shall control
throughout any such extended term.
G. MODIFICATIONS AND ADDITIONS FOR THIS SCHEDULE ONLY
For purposes of this Schedule only, the Agreement is amended as follows:
1. The INDEMNIFICATION Section subsection (b) of the Lease is hereby
amended by deleting the word "and" immediately preceding "(ii)" on the
second line thereof and inserting the following at the end thereof:
; (iii) each item of Equipment constitutes "qualified property" pursuant
to Section 168(k) of the Internal Revenue Code of 1986, as now and
hereafter amended (the "Code"), and is eligible for the additional
first-year depreciation deduction equal to (A) thirty percent (30%) of (B)
fifty percent (50%) of 100% of the Capitalized Lessor's Cost of the
Equipment contemplated by the Code, whichever is applicable; (iv) the
Equipment shall be treated as originally placed in service not earlier
than the date of the execution and delivery of this Schedule, or in the
event the transaction is a sale-leaseback transaction, Lessee shall not
have placed in service the Equipment subject to this Lease at any time
prior to three months before the execution and delivery of this Schedule;
(v) Lessee has not arranged to purchase, and Lessor is not purchasing the
Equipment pursuant to a binding written contract entered into before
September 11, 2001, if clause (iii)(A) above applies, or not before May
06, 2003, if clause (iii)(B) above applies, and (vi) each item of
Equipment shall be placed in service before January 1, 2005.
2. The REPRESENTATIONS AND WARRANTIES OF LESSEE Section of the Lease shall be
amended to add the following sentence at the end thereof:
(j) Lessee is and will remain in full compliance with all laws and regulations
applicable to it including, without limitation, (i) ensuring that no person who
owns a controlling interest in or otherwise controls Lessee is or shall be (Y)
listed on the Specially Designated Nationals and Blocked Person list maintained
by the Office of Foreign Assets Control ("OFAC"), Department of Treasury, and/or
any other similar lists maintained by OFAC pursuant to any authorizing statute,
Executive Order or regulation or (Z) a person designated under Section 1(b), (c)
or (d) of Executive Order No. 13224 (September 23, 2001), and related enabling
legislation or any other similar Executive Orders, and (ii) compliance with all
applicable Bank Secrecy Act ("BSA") laws, regulations and government guidance on
BSA compliance and on the prevention and detection of money laundering
violations.
3. The LEASING Section subsection (b) of the Lease is hereby deleted in its
entirety and the following substituted in its stead:
b) The obligation of Lessor to purchase the Equipment from Lessee and to lease
the same to Lessee shall be subject to receipt by Lessor, on or prior to the
earlier of the Lease Commencement Date or Last Delivery Date therefor, of each
of the following documents in form and substance satisfactory to Lessor: (i) a
Schedule for the Equipment (ii) evidence of insurance which complies with the
requirements of the INSURANCE Section of the Lease, and (iii) such other
documents as Lessor may reasonably request. Once the Schedule is signed, the
Lessee may not cancel the Lease.
4. The DELIVERY, USE AND OPERATION Section subsection (a) of the Lease shall
be deleted and the following substituted in its stead:
The parties acknowledge that this is a sale/leaseback transaction and the
Equipment is in Lessee's possession as of the Lease Commencement Date.
5. XXXX OF SALE
Lessee, in consideration of the Lessor's payment of the amount set forth
in B 2. above, which includes any applicable sales taxes (which payment Lessee
acknowledges), hereby grants, sells, assigns, transfers and delivers to Lessor
the Equipment along with whatever claims and rights Seller may have against the
manufacturer and/or Supplier of the Equipment, including but not limited to all
warranties and representations. At Lessors request Lessee will cause Supplier to
deliver to Lessor a written statement wherein the Supplier (i) consents to the
assignment to Lessor of whatever claims and rights Lessee may have against the
Supplier, (ii) agrees not to retain any security interest, lien or other
encumbrance in or upon the Equipment at any time, and to execute such documents
as Lessor may request to evidence the release of any such encumbrance, and (iii)
represents and warrants to Lessor (x) that Supplier has previously conveyed full
title to the Equipment to Lessee, (y) that the Equipment was delivered to Lessee
and
installation completed, and (z) that the final purchase price of the Equipment
(or a specified portion of such purchase price) has been paid by Lessee.
Lessor is purchasing the Equipment for leasing back to Lessee pursuant to
the Lease. Lessee represents and warrants to Lessor that (i) Lessor will acquire
by the terms of this Xxxx of Sale good title to the Equipment free from all
liens and encumbrances whatsoever; (ii) Lessee has the right to sell the
Equipment; and (iii) the Equipment has been delivered to Lessee in good order
and condition, and conforms to the specifications, requirements and standards
applicable thereto; and (iv) the equipment has been accurately labeled,
consistent with the requirements of 40 CFR part 82 Subpart E, with respect to
products manufactured with a controlled (ozone-depleting) substance.
Lessee agrees to save and hold harmless Lessor from and against any and
all federal, state, municipal and local license fees and taxes of any kind or
nature, including, without limiting the generality of the foregoing, any and all
excise, personal property, use and sales taxes, and from and against any and all
liabilities, obligations, losses, damages, penalties, claims, actions and suits
resulting therefrom and imposed upon, incurred by or asserted against Lessor as
a consequence of the sale of the Equipment to Lessor.
6. ACCEPTANCE
Pursuant to the provisions of the Lease, as it relates to this Schedule,
Lessee hereby certifies and warrants that (i) all Equipment listed above has
been delivered and installed (if applicable); (ii) Lessee has inspected the
Equipment, and all such testing as it deems necessary has been performed by
Lessee, Supplier or the manufacturer; and (iii) Lessee accepts the Equipment for
all purposes of the Lease, the purchase documents and all attendant documents.
Lessee does further certify that as of the date hereof (i) Lessee is not
in default under the Lease; (ii) the representations and warranties made by
Lessee pursuant to or under the Lease are true and correct on the date hereof
and (iii) Lessee has reviewed and approves of the purchase documents for the
Equipment, if any.
7. EQUIPMENT SPECIFIC PROVISIONS
The MAINTENANCE Section of the Lease is amended by adding the following as the
fifth sentence in subsection (a):
Lessee agrees that upon return of the Equipment, it will comply with all
original manufacturer's performance specifications for new Equipment without
expense to Lessor. Lessee shall, if requested by Lessor, obtain a certificate or
service report from the manufacturer attesting to such condition.
Each reference contained in this Agreement to:
(a) "Adverse Environmental Condition" shall refer to (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,
(b) "Affiliate" shall refer, with respect to any given Person, to any Person
that directly or indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with, such Person.
(c) "Contaminant" shall refer to those substances which are regulated by or form
the basis of liability under any Environmental Law, including, without
limitation, asbestos, polychlorinated biphenyls ("PCB's"), and radioactive
substances, or other material or substance which has in the past or could in the
future constitute a health, safety or environmental hazard to any Person,
property or natural resources.
(d) "Environmental Claim" shall refer to any accusation, allegation, notice of
violation, claim, demand, abatement or other order on direction (conditional or
otherwise) by any governmental authority or any Person for personal injury
(including sickness, disease or death), tangible or intangible property damage,
damage to the environment or other adverse effects on the environment, or for
fines, penalties or restrictions, resulting from or based upon any Adverse
Environmental Condition.
(e) "Environmental Emission" shall refer to any actual or threatened release,
spill, emission, leaking, pumping, injection, deposit, 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.
(f) "Environmental Law" shall mean any federal, foreign, state or local law,
rule or regulation pertaining to the protection of the environment, including,
but not limited to, the Comprehensive Environmental Response, Compensation, and
Liability Act ("CERCLA") (42 U.S.C. Section 9601 et seq.), the Hazardous
Material Transportation Act (49 U.S.C. Section 1801 et seq .), the Federal Water
Pollution Control Act (33 U.S.C. Section 1251 et seq .), the Resource
Conservation and Recovery Act (42 U.S.C. Section 6901 et seq .), the Clean Air
Act (42 U.S.C. Section 7401 et seq .), the Toxic Substances Control Act (15
U.S.C. Section 2601 et seq .), the Federal Insecticide, Fungicide, and
Rodenticide Act (7 U.S.C. Section 1361 et seq .), and the Occupational Safety
and Health Act (19 U.S.C. Section 651 et seq .), as these laws have been amended
or supplemented, and any analogous foreign, federal, state or local statutes,
and the regulations promulgated pursuant thereto.
(g) "Environmental Loss" shall mean any loss, cost, damage, liability,
deficiency, fine, penalty or expense (including, without limitation, reasonable
attorneys' 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.
(h) "Person" shall include any individual, partnership, corporation, trust,
unincorporated organization, government or department or agency thereof and any
other entity.
Lessee shall fully and promptly pay, perform, discharge, defend, indemnify and
hold harmless Lessor and its Affiliates, successors and assigns, directors,
officers, employees and agents from and against any Environmental Claim or
Environmental Loss.
The provisions of this Schedule shall survive any expiration or termination of
the Lease and shall be enforceable by Lessor, its successors and assigns.
The MAINTENANCE Section subsection (a) of the Lease shall be amended by adding
the following at the end thereof:
RETURN PROVISIONS: In addition to the provisions provided for in the RETURN OF
EQUIPMENT Section of the Lease, and provided that Lessee has elected not to
exercise its option to purchase the Equipment Lessee shall, at its expense:
(a) at least one hundred eighty (180) days and not more than two hundred seventy
(270) days prior to expiration or earlier termination of the Lease, provide to
Lessor written notification of intent to return all, but not less than all, of
the Equipment. This notification shall include a detailed inventory of all
components of the Equipment. The inventory should include, but not be limited
to, a listing of model and serial numbers for all components comprising the
Equipment;
(b) at least one hundred eighty (180) days prior to expiration or earlier
termination of the Lease, with reference to computer based equipment comprising
the Equipment, provide to Lessor a detailed listing of all internal circuit
boards by both the model and serial number for all hardware comprising the
Equipment and a listing of all software features listed individually;
(c) at least one hundred eighty (180) days prior to expiration or earlier
termination of the Lease, upon receiving reasonable notice from Lessor, provide
or cause the vendor(s) or manufacturer(s) to provide to Lessor the following
documents: (i) one set of service manuals, and operating manuals including
replacements and/or additions thereto, such that all documentation is completely
up-to-date; (ii) one set of documents, detailing equipment configuration,
operating requirements, maintenance records, and other technical data concerning
the set-up and operation of the Equipment, including replacements and/or
additions thereto, such that all documentation is completely up-to-date;
(d) at least one hundred eighty (180) days prior to expiration or earlier
termination of the Lease, upon receiving reasonable notice from Lessor, make the
Equipment available
for on-site operational inspections by potential purchasers, under power, and
provide personnel, power and other requirements necessary to demonstrate
electrical and mechanical systems for each item of the Equipment;
(e) at least one hundred eighty (180) days prior to expiration or earlier
termination of the Lease, cause manufacturer's representative or qualified
equipment maintenance provider, acceptable to Lessor, (the "Authorized
Inspector") to perform a comprehensive physical inspection, including testing
all material and workmanship of the Equipment and ensure all Equipment and
equipment operations conform to all applicable local, state, and federal laws,
health and safety guidelines including the then current FDA regulations; and if
during such inspection, examination and test, the Authorized Inspector finds any
of the material or workmanship to be defective or the Equipment not operating
within manufacturer's specifications and the then current FDA regulations, then
Lessee shall repair or replace such defective material and, after corrective
measures are completed, Lessee will provide for a follow-up inspection of the
Equipment by the Authorized Inspector as outlined in the preceding clause;
(f) have each item of Equipment returned with an in-depth field service report
detailing said inspection as outlined in Section (e) above. The report shall
certify that the Equipment has been properly inspected, examined and tested and
is operating within the manufacturer's specifications;
(g) provide that all Equipment will be cleaned and cosmetically acceptable, and
in such condition so that it may be immediately installed and placed into use in
a similar environment;
(h) properly remove or treat all rust or corrosion;
(i) ensure all items of Equipment will be completely sterilized, steam-cleaned,
and de-greased upon redelivery;
(j) properly remove all Lessee installed markings which are not necessary for
the operation, maintenance or repair of the Equipment;
(k) ensure the Equipment shall be mechanically and structurally sound, capable
of performing the functions for which the Equipment was originally designed, in
accordance with the manufacturer's published and recommended specifications;
(l) ensure that all Equipment and Software licenses and permits are freely
transferable to a third party. Any costs associated with the re-licensing or
re-permitting of the Equipment and/or Software shall be born solely by Lessee.
(m) provide for the deinstallation, packing, transporting, and certifying of the
Equipment to include, but not limited to, the following: (i) the manufacturer's
representative shall de-install all Equipment (including all wire, cable and
mounting hardware) in accordance with the specifications of the manufacturer;
(ii) each item of Equipment will be returned with a certificate supplied by the
manufacturer's representative qualifying the Equipment to be in good condition
and (where applicable)
to be eligible for the manufacturer's maintenance plan; the certificate of
eligibility shall be transferable to another operator of the Equipment;
(iii) the Equipment shall be packed properly and in accordance with the
manufacturer's recommendations, free from all contaminants; (iv) Lessee
shall provide for transportation of the Equipment in a manner consistent
with the manufacturer's recommendations and practices to any location(s)
within the continental North America as Lessor shall direct; and shall
have the Equipment unloaded at such location(s); (v) Lessee shall obtain
and pay for a policy of transit insurance for the redelivery period in an
amount equal to the replacement value of the Equipment and Lessor shall be
named as the loss payee on all such policies of insurance; and (vi) Lessee
shall provide insurance and safe, secure storage for the Equipment for
ninety (90) days after expiration or earlier termination of the Lease at
accessible locations satisfactory to Lessor.
8. LEASE TERM OPTIONS
END OF BASIC TERM OPTIONS
The Lease is amended by adding the following thereto:
FAIR MARKET VALUE RENTAL RENEWAL:
(a) So long as no default exists hereunder and the lease has not
been earlier terminated, Lessee may at lease expiration, upon at least 120
days but not more than 270 days prior written notice to Lessor, extend the
term of the Lease with respect to all (but not less than all) of the
Equipment in this Schedule for a period of 12 months (the "Renewal
Period") for a scheduled monthly rental equal to the monthly Fair Market
Rental Value thereof determined as of the end of the pre-extension Lease
term.
(b) "Fair Market Rental Value" shall mean the price which a willing
lessee would pay for the rental of the Equipment in an arms-length
transaction to a willing lessor under no compulsion to lease for a time
period similar to the Renewal Period; provided, however, that in such
determination: (i) the Equipment shall be assumed to be in the condition
in which it is required to be maintained and returned under this Lease
(ii) in the case of any installed additions to the Equipment, same shall
be valued on an installed basis; and (iii) costs of removal of the
Equipment from the current location shall not be a deduction from such
valuation. If Lessor and Lessee are unable to agree on the Fair Market
Rental Value at least 135 days before Lease expiration, Lessor shall
appoint an independent appraiser (reasonably acceptable to Lessor) to
determine Fair Market Rental Value, and that determination shall be final,
binding and conclusive. Lessee shall bear all costs associated with any
such appraisal.
(c) Lessee shall be deemed to have waived this option unless it
provides Lessor with written notice of its irrevocable election to
exercise the same within 15 days after Fair Market Rental Value is
determined (by agreement or appraisal).
H. PAYMENT AUTHORIZATION
You are hereby irrevocably authorized and directed to deliver and apply
the proceeds due under this Schedule as follows:
Company Name Address Amount
------------------------------------- ----------------- -----------
Milestone, Inc. Xxxxxx, XX 00000 $35,000.00
Personal Chemistry Xxxxxxx, XX 00000 $70,270.00
General Electric (Interim Interest) Xxxxxxx, XX 00000 $ 63.06
General Electric (Advance Rent) Xxxxxxx, XX 00000 $ 2,998.53*
Predix Pharmaceuticals Holdings, Inc. Xxxxxx, XX 00000 $20,186.89
*Applied $642.59 to Advance rent from Good Faith Deposit)
This authorization and direction is given pursuant to the same authority
authorizing the above-mentioned financing.
Except as expressly modified hereby, all terms and provisions of the
Agreement shall remain in full force and effect. This Schedule is not binding or
effective with respect to the Agreement or Equipment until executed on behalf of
Lessor and Lessee by authorized representatives of Lessor and Lessee,
respectively.
IN WITNESS WHEREOF, Lessee and Lessor have caused this Schedule to be
executed by their duly authorized representatives as of the date first above
written.
LESSOR: LESSEE:
GENERAL ELECTRIC CAPITAL CORPORATION PREDIX PHARMACEUTICALS HOLDINGS, INC.
By: /s/ XXXX XXXX By: /s/ NJG XXXXX
------------------------------- --------------------------------
Name: Xxxx Xxxx Name: NJG XXXXX
Title: Senior Vice President Title: CHIEF FINANCIAL OFFICER
/s/ XXXXXXX XXXXXXXX
Xxxxxxx Xxxxxxxx
Chief Executive Officer
EXHIBIT A
ACCOUNT 0000000-003
COMPANY NAME: Predix Pharmaceuticals FUNDING DATE 8/31/2003
EQUIPMENT LOCATION(s): 00X Xxxx Xxxxxx DATE OF LAST FUND 4/7/2003
Xxxxxx, XX 00000
DATE OF LAST FUNDING
CUSTOMER'S
INTERNAL
INV. TAG # (IF AMT. VENDOR
ITEM SUPPLIER INVOICE #INV DATE DESCRIPTION QTY SERIAL # APPLICABLE) FINANCED TOTAL CK #
---- ------------------ -------- ---------- -------------------- --- -------------- ----------- ---------- ----------- ----
Ethos Microsynth
1 Milestone Inc. 24964 8/27/2003 230V60Hz 1 125591 41,565.00
Bechtop Lab Station
1% CREDIT FOR PAYING
EARLY -6,565.00
(not financing S&H)
$ 35,000.00
2 Personal Chemistry 1329 10/27/2003 Xxxx'x Optimizer 1 557 70,270.00
$ 70,270.00
3 VWR International 16026596 9/11/2003 Gr Ext Ice Maker 1 671531-12S 3,741.91 1041
15953700 9/4/2003 Balance 2 1122120835
1122031187 7,223.79 1041
15953699 9/4/2003 Melting Apparatus 1 1187030509650 693.11 1041
16056773 9/15/2003 Freezer 1 T23N-640047-UN 3,047.03 1093
16179970 9/25/2003 Refrigerator 3 W23N-602489-WN 8,542.64 0000
X00X-000000-XX
X00X-000000-XX $ 23,248.48
----------
FUNDING TOTAL 128,518.48 $128,518.48
==========
INV. PROOF OF EQUIP >90
ITEM SUPPLIER PAYMENT CK AMT. CODE DAYS?
---- ------------------ ---------- ------- ----- -----
PAY VENDOR ok, have
1 Milestone Inc. DIRECTLY LAB N invoice
LAB N
2 Personal Chemistry PAY VENDOR LAB N need invoice
DIRECTLY in GE's name
3 VWR International Y LAB N ok
Y LAB N
Y LAB N
Y LAB N
Y LAB N
EQUIPMENT CODE LIST
LAB = Lab Equipment
COMP = Computer Hardware
OFC = Furniture, Telephone, Fax, etc.
SOFT = Computer Software, Tooling/Molds, Tax, Freight, Extended Warranties,
Service Contracts, Etc.
EQUIP.
CODE TOTAL (CAT.) % OF TOTAL
------ --------------- ----------
LAB $ 128,518.48 100%
COMP $ 0.00 0%
OFC $ 0.00 0%
SOFT $ 00 0%
--------------- ---
TOTAL $ 128,518.480 100%
--------------- ---
/s/ XXXXXXX XXXXXXXX
XXXXXXX XXXXXXXX
CHIEF EXECUTIVE OFFICER
PREDIX PHARMACEUTICALS, INC.
BY: _________________________
TITLE: PRESIDENT & CEO
/s/ NJG XXXXX
NJG XXXXX
CHIEF FINANCIAL OFFICER
BIOTECH EQUIPMENT SCHEDULE
SCHEDULE NO. 004
DATED THIS FEBRUARY 24, 2005
TO MASTER LEASE AGREEMENT
DATED AS OF DECEMBER 3, 2002
LESSOR & MAILING ADDRESS: LESSEE & MAILING ADDRESS:
------------------------- -------------------------------------
General Electric Capital Corporation Predix Pharmaceuticals Holdings, Inc.
00 Xxxxxxx Xxxxxxx Xxxx, 0xx Xxxxx 10 K Xxxx Street
Danbury, CT 06810 Xxxxxx, XX 00000
This Schedule is executed pursuant to, and incorporates by reference the terms
and conditions of, and capitalized terms not defined herein shall have the
meanings assigned to them in, the Master Lease Agreement identified above
("AGREEMENT" said Agreement and this Schedule being collectively referred to as
"LEASE"). This Schedule, incorporating by reference the Agreement, constitutes a
separate instrument of lease.
A. EQUIPMENT: Subject to the terms and conditions of the Lease, Lessor agrees
to Lease to Lessee the Equipment described below (the "EQUIPMENT").
CAPITALIZED MODEL AND TYPE OF
NUMBER OF UNITS LESSOR'S COST MANUFACTURER SERIAL NUMBER EQUIPMENT
--------------- ------------- --------------------------- ------------- ---------------------
EQUIPMENT
1 $ 20,500.00 ARGONAUT TECHNOLOGIES, INC. FLASHMASTER SOLO WITH
XXXXXX 204
Equipment immediately listed above is located at: 00 X Xxxx Xxxxxx,
Xxxxxx, Xxxxxxxxx Xxxxxx, XX 00000
B. FINANCIAL TERMS
1. Advance Rent (if any): $574.43
2. Capitalized Lessor's Cost: $20,500.00
3. Basic Term (No. of Months): 36 MONTHS
4. Basic Term Lease Rate Factor: 2.802109
5. Basic Term Commencement Date:
6. Lessee Federal Tax ID No.: 000000000
7. Last Delivery Date:
8. Daily Lease Rate Factor: .0934
9. First Termination Date: N/A (__--__) months after the Basic Term
Commencement Date.
10. Interim Rent: For the period from and including the Lease Commencement
Date to but not including the Basic Term Commencement Date ("Interim Period"),
Lessee shall pay as rent ("Interim Rent") for each unit of Equipment, the
product of the Daily Lease Rate Factor
times the Capitalized Lessor's Cost of such unit times the number of days in the
Interim Period. Interim Rent shall be due on FEBRUARY 28, 2004.
11. Basic Term Rent. Commencing on 3/1/05 and on the same day of each
month thereafter (each, a "Rent Payment Date") during the Basic Term Lessee
shall pay as rent ("Basic Term Rent") the product of the Basic Term Lease Rate
Factor times the Capitalized Lessor's Coat of all Equipment on this Schedule.
C. TAX BENEFITS Depreciation Deductions:
1. Depreciation method is the 200% declining balance method, switching to
straight line method for the 1st taxable year for which using the straight line
method with respect to the adjusted basis as of the beginning of such year will
yield a larger allowance, taking into account the 30% or 50% special
depreciation allowance and basis adjustment under Section 168(k)(1) of the Code,
whichever is applicable.
2. Recovery Period: 5 YEARS.
3. Basis: 100 % of the Capitalized Lessor's Cost.
D. PROPERTY TAX
PROPERTY TAX NOT APPLICABLE ON EQUIPMENT LOCATED IN MASSACHUSETTS.
Lessor may notify Lessee (and Lessee agrees to follow such notification)
regarding any changes in property tax reporting and payment responsibilities.
E. ARTICLE 2A NOTICE
IN ACCORDANCE WITH THE REQUIREMENTS OF ARTICLE 2A OF THE UNIFORM
COMMERCIAL CODE AS ADOPTED IN THE APPLICABLE STATE, LESSOR HEREBY MAKES
THE FOLLOWING DISCLOSURES TO LESSEE PRIOR TO EXECUTION OF THE LEASE, (A)
THE PERSON(S) SUPPLYING THE EQUIPMENT IS ARGONAUT TECHNOLOGIES, INC (THE
"SUPPLIER(S)"), (B) LESSEE IS ENTITLED TO THE PROMISES AND WARRANTIES,
INCLUDING THOSE OF ANY THIRD PARTY, PROVIDED TO THE LESSOR BY SUPPLIER(S),
WHICH IS SUPPLYING THE EQUIPMENT IN CONNECTION WITH OR AS PART OF THE
CONTRACT BY WHICH LESSOR ACQUIRED THE EQUIPMENT AND (C) WITH RESPECT TO
SUCH EQUIPMENT, LESSEE MAY COMMUNICATE WITH SUPPLIER(S) AND RECEIVE AN
ACCURATE AND COMPLETE STATEMENT OF SUCH PROMISES AND WARRANTIES, INCLUDING
ANY DISCLAIMERS AND LIMITATIONS OF THEM OR OF REMEDIES. TO THE EXTENT
PERMITTED BY APPLICABLE LAW, LESSEE HEREBY WAIVES ANY AND ALL RIGHTS AND
REMEDIES CONFERRED UPON A LESSEE IN ARTICLE 2A AND ANY RIGHTS NOW OR
HEREAFTER CONFERRED BY STATUTE OR OTHERWISE WHICH MAY LIMIT OR MODIFY ANY
OF LESSOR'S RIGHTS OR REMEDIES UNDER THE DEFAULT AND REMEDIES SECTION OF
THE AGREEMENT.
F. STIPULATED LOSS AND TERMINATION VALUE TABLE*
Rental Termination Value Stipulated Loss Termination Value Stipulated Loss Value
Basic Percentage Value Percentage Rental Percentage Percentage
1 102.470 106.389 19 64.722 68.646
2 100.533 104.452 20 62.436 66.361
3 98.577 102.496 21 60.130 64.055
4 96.603 100.523 22 57.802 61.727
5 94.612 98.532 23 55.453 59.379
6 92.601 96.522 24 53.082 57.008
7 90.573 94.493 25 50.690 54.616
8 88.525 92.446 26 48.275 52.202
9 86.459 90.381 27 45.838 49.765
10 84.374 88.296 28 43.379 47.306
11 82.270 86.192 29 40.897 44.825
12 80.146 84.068 30 38.392 42.320
13 78.003 81.925 31 35.865 39.793
14 75.839 79.762 32 33.314 37.242
15 73.656 77.580 33 30.739 34.668
16 71.453 75.377 34 28.141 32.070
17 69.230 73.154 35 25.518 29.448
18 66.986 70.910 36 22.872 26.802
*The Stipulated Loss Value or Termination Value for any unit of Equipment
shall be the Capitalized Lessor's Cost of such unit multiplied by the
appropriate percentage derived from the above table. In the event that the Lease
is for any reason extended, then the last percentage figure shown above shall
control throughout any such extended term.
G. MODIFICATIONS AND ADDITIONS FOR THIS SCHEDULE ONLY
For purposes of this Schedule only, the Agreement is amended as follows:
1. The INDEMNIFICATION Section subsection (b) of the Lease is hereby
amended by deleting the word "and" immediately preceding "(ii)" on the
second line thereof and inserting the following at the end thereof:
; (iii) each item of Equipment constitutes "qualified property" pursuant
to Section 168(k) of the Internal Revenue Code of 1986, as now and
hereafter amended (the "Code"), and is eligible for the additional
first-year depreciation deduction equal to (A) thirty percent (30%) or (B)
fifty percent (50%) of 100% of the Capitalized Lessor's Cost of the
Equipment contemplated by the Code, whichever is applicable; (iv) the
Equipment shall be treated as originally placed in service not earlier
than the date of the execution and delivery of this Schedule, or in the
event the transaction is a sale-leaseback transaction, Lessee shall not
have placed in service the Equipment subject to this Lease at any time
prior to three months before the execution and delivery of this Schedule; (v)
Lessee has not arranged to purchase, and Lessor is not purchasing the Equipment
pursuant to a binding written contract entered into before September 11, 2001,
if clause (iii) (A) above applies, or not before May 06, 2003, if clause (iii)
(B) above applies, and (vi) each item of Equipment shall be placed in service
before January 1, 2005.
2. The REPRESENTATIONS AND WARRANTIES OF LESSEE Section of the Lease shall be
amended to add the following sentence at the end thereof:
(j) Lessee is and will remain in full compliance with all laws and regulations
applicable to it including, without limitation, (i) ensuring that no person who
owns a controlling interest in or otherwise controls Lessee is or shall be (Y)
listed on the Specially Designated Nationals and Blocked Person List maintained
by the Office of Foreign Assets Control ("OFAC"), Department of the Treasury,
and/or any other similar lists maintained by OFAC pursuant to any authorizing
statute, Executive Order or regulation or (Z) a person designated under Section
1(b), (c) or (d) of Executive Order No. 13224 (September 23, 2001), any related
enabling legislation or any other similar Executive Orders, and (ii) compliance
with all applicable Bank Secrecy Act ("BSA") laws, regulations and government
guidance on BSA compliance and on the prevention and detection of money
laundering violations.
3. The LEASING Section subsection (b) of the Lease is hereby deleted in its
entirely and the following substituted in its stead:
b) The obligation of Lessor to purchase the Equipment from Lessee and to lease
the same to Lessee shall be subject to receipt by Lessor, on or prior to the
earlier of the Lease Commencement Date or Last Delivery Date therefor, of each
of the following documents in form and substance satisfactory to Lessor: (i) a
Schedule for the Equipment (ii) evidence of insurance which complies with the
requirements of the INSURANCE Section of the Lease, and (iii) such other
documents as Lessor may reasonably request. Once the Schedule is signed, the
Lessee may not cancel the Lease.
4. The DELIVERY, USE AND OPERATION Section subsection (a) of the Lease shall
be deleted and the following substituted in its stead:
The parties acknowledge that this is a sale/leaseback transaction and the
Equipment is in Lessee's possession as of the Lease Commencement Date.
5. XXXX OF SALE
Lessee, in consideration of the Lessor's payment of the amount set forth in B 2.
above, which includes any applicable sales taxes (which payment Lessee
acknowledges), hereby grants, sells, assigns, transfers and delivers to Lessor
the Equipment along with whatever claims and rights Seller may have against the
manufacturer and/or Supplier of the Equipment, including but not limited to all
warranties and representations. At Lessors request Lessee will cause Supplier to
deliver to Lessor a written statement wherein the Supplier (i) consents to the
assignment to Lessor of whatever claims and rights Lessee may have against the
Supplier, (ii) agrees not to retain any security interest, lien or other
encumbrance in or upon the Equipment at any time, and to execute such documents
as Lessor may request to evidence the release of any such encumbrance, and (iii)
represents and warrants to Lessor (x) that Supplier has previously conveyed full
title to the Equipment to Lessee, (y) that the Equipment was delivered to Lessee
and installation completed, and (z) that the final purchase price of the
Equipment (or a specified portion of such purchase price) has been paid by
Lessee.
Lessor is purchasing the Equipment for leasing back to Lessee pursuant to
the Lease. Lessee represents and warrants to Lessor that (i) Lessor will acquire
by the terms of this Xxxx of Sale good tide to the Equipment free from all liens
and encumbrances whatsoever, (ii) Lessee has the right to sell the Equipment;
and (iii) the Equipment has been delivered to Lessee in good order and
condition, and conforms to the specifications, requirements and standards
applicable thereto; and (iv) the equipment has been accurately labeled,
consistent with the requirements of 40 CFR part 82 Subpart E, with respect to
products manufactured with a controlled (ozone-depleting) substance.
Lessee agrees to save and hold harmless Lessor from and against any and
all federal, state, municipal and local license fees and taxes of any kind or
nature, including, without limiting the generality of the foregoing, any and all
excise, personal property, use and sales taxes, and from and against any and all
liabilities, obligations, losses, damages, penalties, claims, actions and suits
resulting therefrom and imposed upon, incurred by or asserted against Lessor as
a consequence of the sale of the Equipment to Lessor.
6. ACCEPTANCE
Pursuant to the provisions of the Lease, as it relates to this Schedule, Lessee
hereby certifies and warrants that (i) all Equipment listed above has been
delivered and installed (if applicable); (ii) Lessee has inspected the
Equipment, and all such testing as it deems necessary has been performed by
Lessee, Supplier or the manufacturer; and (iii) Lessee accepts the Equipment for
all purposes of the Lease, the purchase documents and all attendant documents.
Lessee does further certify that as of the date hereof (i) Lessee is not in
default under the Lease; (ii) the representations and warranties made by Lessee
pursuant to or under the Lease are true and correct on the date hereof and (iii)
Lessee has reviewed and approves of the purchase documents for the Equipment, if
any.
7. EQUIPMENT SPECIFIC PROVISIONS
The MAINTENANCE Section of the Lease is amended by adding the following as the
fifth sentence in subsection (a):
Lessee agrees that upon return of the Equipment, it will comply with all
original manufacturers performance specifications for new Equipment without
expense to Lessor. Lessee shall, if requested by Lessor, obtain a certificate or
service report from the manufacturer attesting to such condition.
Each reference contained in this Agreement to:
(a) "Adverse Environmental Condition" shall refer to (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.
(b) "Affiliate" shall refer, with respect to any given Person, to any Person
that directly or indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with, such Person.
(c) "Contaminant" shall refer to those substances which are regulated by or form
the basis of liability under any Environmental Law, including, without
limitation, asbestos, polychlorinated biphenyls ("PCB's"), and radioactive
substances, or other material or substance which has in the past or could in the
future constitute a health, safety or environmental hazard to any Person,
property or natural resources.
(d) "Environmental Claim" shall refer to any accusation, allegation, notice of
violation, claim, demand, abatement or other order on direction (conditional or
otherwise) by any governmental authority or any Person for personal injury
(including sickness, disease or death), tangible or intangible property damage,
damage to the environment or other adverse effects on the environment, or for
fines, penalties or restrictions, resulting from or based upon any Adverse
Environmental Condition.
(e) "Environmental Emission" shall refer to any actual or threatened release,
spill, emission, leaking, pumping, injection, deposit, 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.
(f) "Environmental Law" shall mean any federal, foreign, state or local law,
rule or regulation pertaining to the protection of the environment, including,
but not limited to, the Comprehensive Environmental Response, Compensation, and
Liability Act ("CERCLA") (42 U.S.C. Section 9601 et seq .), the Hazardous
Material Transportation Act (49 U.S.C. Section 1801 et seq .), the Federal Water
Pollution Control Act (33 U.S.C. Section 1251 et seq .), the Resource
Conservation and Recovery Act (42 U.S.C. Section 6901 et seq.), the Clean Air
Act (42 U.S.C. Section 7401 et seq.), the Toxic Substances Control Act (15
U.S.C. Section 2601 et seq .), the Federal Insecticide, Fungicide, and
Rodenticide Act (7 U.S.C. Section 1361 et seq .), and the Occupational Safety
and Health Act (19 U.S.C. Section 651 et seq .), as these laws have been amended
or supplemented,
and any analogous foreign, federal, state or local statutes, and the regulations
promulgated pursuant thereto.
(g) "Environmental Loss" shall mean any loss, cost, damage, liability,
deficiency, fine, penalty or expense (including, without limitation, reasonable
attorneys' 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.
(h) "Person" shall include any individual, partnership, corporation, trust,
unincorporated organization, government or department or agency thereof and any
other entity.
Lessee shall fully and promptly pay, perform, discharge, defend, indemnify and
hold harmless Lessor and its Affiliates, successors and assigns, directors,
officers, employees and agents from and against any Environmental Claim or
Environmental Loss.
The provisions of this Schedule shall survive any expiration or termination of
the Lease and shall be enforceable by Lessor, its successors and assigns.
The MAINTENANCE Section subsection (a) of the Lease shall be amended by adding
the following at the end thereof:
RETURN PROVISIONS: In addition to the provisions provided for in the RETURN OF
EQUIPMENT Section of the Lease, and provided that Lessee has elected not to
exercise its option to purchase the Equipment Lessee shall, at its expense:
(a) at least one hundred eighty (180) days and not more than two hundred seventy
(270) days prior to expiration or earlier termination of the Lease, provide to
Lessor written notification of intent to return all, but not less than all, of
the Equipment. This notification shall include a detailed inventory of all
components of the Equipment. The inventory should include, but not be limited
to, a listing of model and serial numbers for all components comprising the
Equipment;
(b) at least one hundred eighty (180) days prior to expiration or earlier
termination of the Lease, with reference to computer based equipment comprising
the Equipment, provide to Lessor a detailed listing of all internal circuit
boards by both the model and serial number for all hardware comprising the
Equipment and a listing of all software features listed individually;
(c) at least one hundred eighty (180) days prior to expiration or earlier
termination of the Lease, upon receiving reasonable notice from Lessor, provide
or cause the vendor(s) or manufacturer(s) to provide to Lessor the following
documents: (i) one set of service manuals, and operating manuals including
replacements and/or additions thereto, such that all documentation is completely
up-to-date, (ii) one set of documents, detailing equipment configuration,
operating requirements, maintenance records, and other technical data concerning
the set-up and operation of the Equipment, including replacements and/or
additions thereto, such that all documentation is completely up-to date;
(d) at least one hundred eighty (180) days prior to expiration or earlier
termination of the Lease, upon receiving reasonable notice from Lessor, make the
Equipment available for on-site operational inspections by potential purchasers,
under power, and provide personnel, power and other requirements necessary to
demonstrate electrical and mechanical systems for each item of the Equipment;
(e) at least one hundred eighty (180) days prior to expiration or earlier
termination of the Lease, cause manufacturer's representative or qualified
equipment maintenance provider, acceptable to Lessor, (the "Authorized
Inspector") to perform a comprehensive physical inspection, including testing
all material and workmanship of the Equipment and ensure all Equipment and
equipment operations conform to all applicable local, state, and federal laws,
health and safety guidelines including the then current FDA regulations; and if
during such inspection, examination and test, the Authorized Inspector finds any
of the material or workmanship to be defective or the Equipment not operating
within manufacturers specifications and the then current FDA regulations, then
Lessee shall repair or replace such defective material and, after corrective
measures are completed, Lessee will provide for a follow-up inspection of the
Equipment by the Authorized Inspector as outlined in the preceding clause;
(f) have each item of Equipment returned with an in-depth field service report
detailing said inspection as outlined in Section (e) above. The report shall
certify that the Equipment has been properly inspected, examined and tested and
is operating within the manufacturers specifications;
(g) provide that all Equipment will be cleaned and cosmetically acceptable, and
in such condition so that it may be immediately installed and placed into use in
a similar environment;
(h) properly remove or treat all rust or corrosion;
(i) ensure all items of Equipment will be completely sterilized, steam-cleaned,
and de-greased upon redelivery;
(j) properly remove all Lessee installed markings which are not necessary for
the operation, maintenance or repair of the Equipment;
(k) ensure the Equipment shall be mechanically and structurally sound, capable
of performing the functions for which the Equipment was originally designed, in
accordance with the manufacturer's published and recommended specifications;
(1) ensure that all Equipment and Software licenses and permits are freely
transferable to a third party. Any costs associated with the re-licensing or
re-permitting of the Equipment and/or Software shall be born solely by Lessee.
(m) provide for the deinstallation, packing, transporting, and certifying of the
Equipment to include, but not limited to, the following: (i) the manufacturer's
representative shall de-install all Equipment (including all wire, cable and
mounting hardware) in accordance with the specifications of the manufacturer;
(ii) each item of Equipment will be retained
with a certificate supplied by the manufacturer's representative qualifying the
Equipment to be in good condition and (where applicable) to be eligible for the
manufacturer's maintenance plan; the certification of eligibility shall be
transferable to another operator of the Equipment; (iii) the Equipment shall be
packed properly and in accordance with the manufacturer's recommendations, free
from all contaminants; (iv) Lessee shall provide for transportation of the
Equipment in a manner consistent with the manufacturers recommendations and
practices to any location(s) within continental North America as Lessor shall
direct; and shall have the Equipment unloaded at such location(s); (v) Lessee
shall obtain and pay for a policy of transit insurance for the redelivery period
in an amount equal to the replacement value of the Equipment and Lessor shall be
named as the loss payee on all such policies of insurance; and (vi) Lessee shall
provide insurance and safe, secure storage for the Equipment for ninety (90)
days after expiration or earlier termination of the Lease at accessible
locations satisfactory to Lessor.
8. LEASE TERM OPTIONS
END OF BASIC TERM OPTIONS
The Lease is amended by adding the following thereto:
FAIR MARKET VALUE RENTAL RENEWAL:
(a) So long as no default exists hereunder and the lease has not been
earlier terminated, Lessee may at lease expiration, upon at least 120 days but
not more than 270 days prior written notice to Lessor, extend the term of the
Lease with respect to all (but not less than all) of the Equipment in this
Schedule for a period of 12 months (the "Renewal Period") for a scheduled
monthly rental equal to the monthly Fair Market Rental Value thereof determined
as of the end of the pre-extension Lease term.
(b) "Fair Market Rental Value" shall mean the price which a willing lessee
would pay for the rental of the Equipment in an arms-length transaction to a
willing lessor under no compulsion to lease for a time period similar to the
Renewal Period; provided, however, that in such determination: (i) the Equipment
shall be assumed to be in the condition in which it is required to be maintained
and returned under this Lease (ii) in the case of any installed additions to the
Equipment, same shall be valued on an installed basis; and (iii) costs of
removal of the Equipment from the current location shall not be a deduction from
such valuation. If Lessor and Lessee are unable to agree on the Fair Market
Rental Value at least 135 days before Lease expiration, Lessor shall appoint an
independent appraiser (reasonably acceptable to Lessee) to determine Fair Market
Rental Value, and that determination shall be final, binding and conclusive.
Lessee shall bear all costs associated with any such appraisal.
(c) Lessee shall be deemed to have waived this option unless it provides
Lessor with written notice of its irrevocable election to exercise the same
within 15 days after Fair Market Rental Value is determined (by agreement or
appraisal).
H. PAYMENT AUTHORIZATION
You are hereby irrevocably authorized and directed to deliver and apply
the proceeds due under this Schedule as follows:
COMPANY NAME ADDRESS AMOUNT
--------------------------- ---------------------- ----------
Argonaut Technologies, Inc. Xxxxxxx Xxxx, XX 00000 $20,500.00
This authorization and direction is given pursuant to the same authority
authorizing the above-mentioned financing.
Except as expressly modified hereby, all terms and provisions of the
Agreement shall remain in full force and effect. This Schedule is not binding or
effective with respect to the Agreement or Equipment until executed on behalf of
Lessor and Lessee by authorized representatives of Lessor and Lessee,
respectively.
IN WITNESS WHEREOF, Lessee and Lessor have caused this Schedule to be executed
by their duly authorized representatives as of the date first above written.
LESSOR: LESSEE:
GENERAL ELECTRIC CAPITAL CORPORATION PREDIX PHARMACEUTICALS HOLDINGS, INC.
By: /s/ XXXX XXXX By: /s/ XXXXXXX XXXXXXXX
------------------------------- ---------------------------------
Name: Xxxx Xxxx Name: XXXXXXXX
Title: Senior Vice President Title: CEO
