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Exhibit 10.18
MASTER LEASE AGREEMENT
COMDISCO, INC. - LESSOR
MASTER LEASE AGREEMENT DATED NOVEMBER 16, 1994, BY AND BETWEEN COMDISCO, INC.
("LESSOR") and COMBICHEM, INC. ("LESSEE").
IN CONSIDERATION OF THE MUTUAL AGREEMENTS DESCRIBED BELOW, THE PARTIES AGREE AS
FOLLOWS (ALL CAPITALIZED TERMS ARE DEFINED IN SECTION 14.19):
1. PROPERTY LEASED.
Lessor leases to Lessee all of the Equipment described on each Schedule.
In the event of a conflict, the terms of a Schedule prevail over this Master
Lease.
2. TERM.
On the Commencement Date, Lessee will be deemed to accept the Equipment,
will be bound to its rental obligations for each item of Equipment and the term
of a Schedule will begin and continue through the Initial Term and thereafter
until terminated by either party upon prior written notice received during the
Notice Period. No termination may be effective prior to the expiration of the
Initial Term.
3. RENT AND PAYMENT.
Rent is due and payable in advance, in immediately available funds, on the
first day of each Rent Interval to the payee and at the location specified in
Lessor's invoice. Interim Rent is due and payable when invoiced. If any payment
is not made when due, Lessee will pay interest at the Overdue Rate. Upon
Lessee's execution of each Schedule, Lessee will pay Lessor the Advance
specified on the Schedule. The Advance will be credited towards the final Rent
payment if Lessee is not then in default. No interest will be paid on the
Advance.
4. SELECTION; WARRANTY AND DISCLAIMER OF WARRANTIES.
4.1 SELECTION. Lessee acknowledges that it has selected the Equipment
and disclaims any reliance upon statements made by the Lessor.
4.2 WARRANTY AND DISCLAIMER OF WARRANTIES. Lessor warrants to Lessee
that, so long as Lessee is not in default, Lessor will not disturb Lessee's
quiet and peaceful possession, and unrestricted use of the Equipment. To the
extent permitted by the manufacturer, Lessor assigns to Lessee during the term
of the Schedule any manufacturer's warranties for the Equipment. LESSOR MAKES NO
OTHER WARRANTY, EXPRESS OR IMPLIED AS TO ANY MATTER WHATSOEVER, INCLUDING,
WITHOUT LIMITATION, THE MERCHANTABILITY OF THE EQUIPMENT OR ITS FITNESS FOR A
PARTICULAR PURPOSE. Lessor is not responsible for any liability, claim, loss,
damage or expense of any kind (including strict liability in tort) caused by the
Equipment except for any loss or damage caused by the negligent acts of Lessor.
In no event is Lessor responsible for special, incidental or consequential
damages.
5. TITLE; RELOCATION OR SUBLEASE; AND ASSIGNMENT.
5.1 TITLE. Lessee holds the Equipment subject and subordinate to the
rights of the Owner, Lessor, any Assignee and any Secured Party. Lessee
authorizes Lessor, as Lessee's agent, to prepare, execute and file in Lessee's
name precautionary Uniform Commercial Code financing statements showing the
interest of the Owner,
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Lessor, and any Assignee or Secured Party in the Equipment and to insert serial
numbers in Schedules as appropriate. Lessee will, at its expense, keep the
Equipment free and clear from any liens or encumbrances of any kind (except any
caused by Lessor) and will indemnify and hold Lessor, Owner, any Assignee and
Secured Party harmless from and against any loss caused by Lessee's failure to
do so.
5.2 RELOCATION OR SUBLEASE. Upon prior written consent, Lessee may
relocate Equipment to any location within the continental United States provided
(i) the Equipment will not be used by an entity exempt from federal income tax,
(ii) all additional costs (including any administrative fees, additional taxes
and insurance coverage) are reconciled and promptly paid by Lessee.
Lessee may sublease the Equipment upon the reasonable consent of the
Lessor and the Secured Party. Such consent to sublease will be granted if: (i)
Lessee meets the relocation requirements set out above, (ii) the sublease is
expressly subject and subordinate to the terms of the Schedule, (iii) Lessee
assigns its rights in the sublease to Lessor and the Secured Party as additional
collateral and security, (iv) Lessee's obligation to maintain and insure the
Equipment is not altered, (v) all financing statements required to continue the
Secured Party's prior perfected security interest are filed, and (vi) the
sublease is not to a leasing entity affiliated with the manufacturer of the
Equipment described on the Schedule. Lessor acknowledges Lessee's right to
sublease for a term which extends beyond the expiration of the Initial Term. If
Lessee subleases the Equipment for a term extending beyond the expiration of
such Initial Term of the applicable Schedule. Lessee will remain obligated upon
the expiration of the Initial Term to return such Equipment, or, at Lessor's
sole discretion to (i) return Like Equipment or (ii) negotiate a mutually
acceptable lease extension or purchase. If the parties cannot mutually agree
upon the terms of an extension or purchase, the term of the Schedule will extend
upon the original terms and conditions until terminated pursuant to Section 2.
No relocation or sublease will relieve Lessee from any of its obligations
under this Master Lease and the relevant Schedule.
5.3 ASSIGNMENT BY LESSOR. The terms and conditions of each Schedule have
been fixed by Lessor in order to permit Lessor to sell and/or assign or transfer
its interest or grant a security interest in each Schedule and/or the Equipment
to a Secured Party or Assignee. In that event, the term Lessor will mean the
Assignee and any Secured Party. However, any assignment, sale, or other transfer
by Lessor will not relieve Lessor of its obligations to Lessee and will not
materially change Lessee's duties or materially increase the burdens or risks
imposed on Lessee. The Lessee consents to and will acknowledge such assignments
in a written notice given to Lessee. Lessee also agrees that:
(a) The Secured Party will be entitled to exercise all of Lessor's
rights, but will not be obligated to perform any of the obligations of Lessor.
The Secured Party will not disturb Lessee's quiet and peaceful possession and
unrestricted use of the Equipment so long as Lessee is not in default and the
Secured Party continues to receive all Rent payable under the Schedule; and
(b) Lessee will pay all Rent and all other amounts payable to the
Secured Party, despite any defense or claim which it has against Lessor. Lessee
reserves its right to have recourse directly against Lessor for any defense or
claim;
(c) Subject to and without impairment of Lessee's leasehold rights
in the Equipment, Lessee holds the Equipment for the Secured Party to the extent
of the Secured Party's rights in that Equipment.
6. NET LEASE; TAXES AND FEES.
6.1 NET LEASE. Each Schedule constitutes a net lease. Lessee's
obligation to pay Rent and all other amounts is absolute and unconditional and
is not subject to any abatement, reduction, set-off, defense, counterclaim,
interruption, deferment or recoupment for any reason whatsoever.
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6.2 TAXES AND FEES. Lessee will pay when due or reimburse Lessor for all
taxes, fees or any other charges (together with any related interest or
penalties not arising from the negligence of Lessor) accrued for or arising
during the term of each Schedule against Lessor, Lessee or the Equipment by any
governmental authority (except only Federal, state and local taxes on the
capital or the net income of Lessor). Lessor will file all personal property tax
returns for the Equipment and pay all property taxes due. Lessee will reimburse
Lessor or property taxes within thirty (30) days of receipt of an invoice.
7. CARE, USE AND MAINTENANCE; ATTACHMENTS AND RECONFIGURATIONS; AND
INSPECTION BY LESSOR.
7.1 CARE, USE AND MAINTENANCE. Lessee will maintain the Equipment in
good operating order and appearance, protect the Equipment from deterioration,
other than normal wear and tear, and will not use the Equipment for any purpose
other than that for which it was designed. If commercially available, Lessee
will maintain in force a standard maintenance contract with the manufacturer of
the Equipment, or another party acceptable to Lessor, and will provide Lessor
with a complete copy of that contract. If Lessee has the Equipment maintained by
a party other than the manufacturer, Lessee agrees to pay any costs necessary
for the manufacturer to bring the Equipment to then current release, revision
and engineering change levels, and to re- certify the Equipment as eligible for
manufacturer's maintenance at the expiration of the lease term. The lease term
will continue upon the same terms and conditions until recertification has been
obtained.
7.2 ATTACHMENTS AND RECONFIGURATIONS. Upon receiving the prior written
consent of Lessor, Lessee may reconfigure and install Attachments on the
Equipment. In the event of such a Reconfiguration or Attachment, Lessee will,
upon return of the Equipment, at its expense, restore the Equipment to the
original configuration specified on the Schedule in accordance with the
manufacturer's specifications and in the same operating order, repair and
appearance as when installed (normal wear and tear excluded). If any parts of
the Equipment are removed during a Reconfiguration or Attachment, Lessor may
require Lessee to provide additional security, satisfactory to the Lessor, in
order to ensure performance of Lessee's obligations set forth in this
subsection. Neither Attachments nor parts installed on Equipment in the course
of Reconfiguration will be accessions to the Equipment.
7.3 INSPECTION BY LESSOR. Upon request, Lessee, during reasonable
business hours and subject to Lessee's security requirements, will make the
Equipment and its related log and maintenance records available to Lessor for
inspection.
8. REPRESENTATIONS AND WARRANTIES OF LESSEE.
Lessee hereby represents, warrants and covenants that with respect to the
Master Lease and each Schedule executed hereunder:
(a) The Lessee is a corporation duly organized and validly
existing in good standing under the laws of the jurisdiction of its
incorporation, is duly qualified to do business in each jurisdiction (including
the jurisdiction where the Equipment is, or is to be, located) where its
ownership or lease of property or the conduct of its business requires such
qualification; and has full corporate power and authority to hold property under
the Master Lease and each Schedule and to enter into and perform its obligations
under such Lease.
(b) The execution and delivery by the Lessee of the Master Lease
and each Schedule and its performance thereunder have been duly authorized by
all necessary corporate action on the part of the Lessee, and the Master Lease
and each Schedule are not inconsistent with the Lessee's Certificate of
Incorporation or Bylaws, do not contravene any law or governmental rule,
regulation or order applicable to it, do not and will not contravene any
provision of, or constitute a default under any indenture, mortgage, contract or
other instrument to which it is a party or by which it is bound, and the Master
Lease and each Schedule constitute legal, valid and binding agreements of the
Lessee, enforceable in accordance with their terms.
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(c) There are no actions, suits, proceedings or patent claims
pending or, to the knowledge of the Lessee, threatened against or affecting the
Lessee in any court or before any governmental commission, board or authority
which, if adversely determined, will have a material adverse effect on the
ability of the Lessee to perform its obligations under the Master Lease and each
Schedule.
(d) The Equipment is personal property and when subjected to use
by the Lessee will not be or become fixtures under applicable law.
(e) The Lessee has no material liabilities or obligations,
absolute or contingent (individually or in the aggregate), except the
liabilities and obligations of the Lessee as set forth in the Financial
Statements and liabilities and obligations which have occurred in the ordinary
course of business, and which have not been, in any case or in the aggregate,
materially adverse to Lessee's ongoing business.
(f) To the best of the Lessee's knowledge, the Lessee owns,
possesses, has access to, or can become licensed on reasonable terms under all
patents, patent applications, trademarks, trade names, inventions, franchises,
licenses, permits, computer software and copyrights necessary for the operations
of its business as now conducted, with no known infringement of, or conflict
with, the rights of others.
(g) All material contracts, agreements and instruments to which
the Lessee is a party are in full force and effect in all material respects, and
are valid, binding and enforceable by the Lessee in accordance with their
respective terms, subject to the effect of applicable bankruptcy and other
similar laws affecting the rights of creditors generally, and rules of law
concerning equitable remedies.
9. DELIVERY AND RETURN OF EQUIPMENT.
Lessee hereby assumes the full expense of transportation and in-transit
insurance to Lessee's premises and installation thereat of the Equipment. Upon
termination (by expiration or otherwise) of each Schedule, Lessee shall,
pursuant to Lessor's instructions and at Lessee's full expense (including,
without limitation, expenses of transportation and in-transit insurance), return
the Equipment to Lessor in the same operating order, repair, condition and
appearance as when received, less normal depreciation and wear and tear, Lessee
shall return the Equipment to Lessor at its address set forth herein or at such
other address within the continental United States as directed by Lessor,
provided, however, that Lessee's expense shall be limited to the cost of
returning the equipment to Lessor's address as set forth herein. During the
period subsequent receipt of a notice under Section 2, Lessor may demonstrate
the Equipment's operation in place and Lessee will supply any of its personnel
as may reasonably be required to assist in the demonstrations.
10. LABELING.
Upon request, Lessee will xxxx the Equipment indicating Lessor's interest.
Lessee will keep all Equipment free from any other marking or labeling which
might be interpreted as a claim of ownership.
11. INDEMNITY.
Lessee will indemnify and hold Lessor, any Assignee and any Secured Party
harmless from and against any and all claims, costs, expenses, damages and
liabilities, including reasonable Attorneys' fees, arising out of the ownership
(for strict liability in tort only), selection, possession, leasing, operation,
control, use, maintenance, delivery, return or other disposition of the
Equipment. However, Lessee is not responsible to a party indemnified hereunder
for any claims, costs, expenses, damages and liabilities occasioned by the
negligent acts of such indemnified party. Lessee agrees to carry bodily injury
and property damage liability insurance during the term of the Master Lease in
amounts and against risks customarily insured against by the Lessee on equipment
owned by it. Any amounts received by Lessor under that insurance will be
credited against Lessee's obligations under this Section.
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12. RISK OF LOSS.
Effective upon delivery and until the Equipment is returned, Lessee
relieves Lessor of responsibility for all risks of physical damage to or loss or
destruction of the Equipment. Lessee will carry casualty insurance for each item
of Equipment in an amount not less than the Casualty Value. All policies for
such insurance will name the Lessor and any Secured Party as additional insured
and as loss payee, and will provide for at least thirty (30) days prior written
notice to the Lessor of cancellation or expiration, and will insure Lessor's
interests regardless of any breach or violation by Lessee of any representation,
warranty or condition contained in such policies and will be primary without
right of contribution from any insurance effected by Lessor. Upon the execution
of any Schedule, the Lessee wilt furnish appropriate evidence of such insurance
acceptable to Lessor.
Lessee will promptly repair any damaged item of Equipment unless such
Equipment has suffered a Casualty Loss. Within fifteen (15) days of a Casualty
Loss, Lessee will provide written notice of that loss to Lessor and Lessee will,
at Lessor's option, either (a) replace the item of Equipment with Like Equipment
and marketable title to the Like Equipment will automatically vest in Lessor or
(b) pay the Casualty Value and after that payment and the payment of all other
amounts due and owing, Lessee's obligation to pay further Rent for the item of
Equipment will cease.
13. DEFAULT, REMEDIES AND MITIGATION.
13.1 DEFAULT. The occurrence of any one or more of the following Events
of Default constitutes a default under a Schedule:
(a) Lessee's failure to pay Rent or other amounts payable by
Lessee when due if that failure continues for five (5) days after written
notice: or
(b) Lessee's failure to perform any other term or condition of the
Schedule or the material inaccuracy of any representation or warranty made by
the Lessee in the Schedule or in any document or certificate furnished to the
Lessor hereunder if that failure or inaccuracy continues for ten (10) days after
written notice; or
(c) An assignment by Lessee for the benefit of its creditors, the
failure by Lessee to pay its debts when due, the insolvency of Lessee, the
filing by Lessee or the filing against Lessee of any petition under any
bankruptcy or insolvency law or for the appointment of a trustee or other
officer with similar powers, the adjudication of Lessee as insolvent, the
liquidation of Lessee, or the taking of any action for the purpose of the
foregoing; or
(d) The occurrence of an Event of Default under any Schedule or
other agreement between Lessee and Lessor or its Assignee or Secured Party.
13.2 REMEDIES. Upon the occurrence of any of the above Events of Default,
Lessor, at its option, may:
(a) enforce Lessee's performance of the provisions of the
applicable Schedule by appropriate court action in law or in equity;
(b) recover from Lessee any damages and or expenses, including
Default Costs;
(c) with notice and demand, recover all sums due and accelerate
and recover the present value of the remaining payment stream of all Rent due
under the defaulted Schedule (discounted at the same rate of interest at which
such defaulted Schedule was discounted with a Secured Party plus any prepayment
fees charged to Lessor by the Secured Party or, if there is no Secured Party,
then discounted at 6%) together with all Rent and other amounts currently due as
liquidated damages and not as a penalty;
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(d) with notice and process of law and in compliance with Lessee's
security requirements, Lessor may enter on Lessee's premises to remove and
repossess the Equipment without being liable to Lessee for damages due to the
repossession, except those resulting from Lessor's, its assignees', agents' or
representatives' negligence; and
(e) pursue any other remedy permitted by law or equity.
The above remedies, in Lessor's discretion and to the extent permitted by law,
are cumulative and may be exercised successively or concurrently.
13.3 MITIGATION. Upon return of the Equipment pursuant to the terms of
Section 13.2, Lessor will use its best efforts in accordance with its normal
business procedures (and without obligation to give any priority to such
Equipment) to mitigate Lessor's damages as described below. EXCEPT AS SET FORTH
IN THIS SECTION, LESSEE HEREBY WAIVES ANY RIGHTS NOW OR HEREAFTER CONFERRED BY
STATUTE OR OTHERWISE WHICH MAY REQUIRE LESSOR TO MITIGATE ITS DAMAGES OR MODIFY
ANY OF Lessor's RIGHTS OR REMEDIES STATED HEREIN. Lessor may sell, lease or
otherwise dispose of all or any part of the Equipment at a public or private
sale for cash or credit with the privilege of purchasing the Equipment. The
proceeds from any sale, lease or other disposition of the Equipment are defined
as either:
(a) if sold or otherwise disposed of, the cash proceeds less the
Fair Market Value of the Equipment at the expiration of the Initial Term less
the Default Costs; or
(b) if leased, the present value (discounted at three points over
the prime rate as referenced in the Wall Street Journal at the time of the
mitigation) of the rentals for a term not to exceed the Initial Term, less the
Default Costs.
Any proceeds will be applied against liquidated damages and any other sums
due to Lessor from Lessee. However, Lessee is liable to Lessor for, and Lessor
may recover, the amount by which the proceeds are less than the liquidated
damages and other sums due to Lessor from Lessee.
14. ADDITIONAL PROVISIONS.
14.1 DELETED.
14.2 FINANCIAL STATEMENTS. Lessee will provide to Lessor the financial
statements specified in this Section, prepared in accordance with generally
accepted accounting principles, consistently applied (the "Financial
Statements"); provided, however, after the effective date of the initial
registration statement covering a public offering of Lessee's securities, the
term "Financial Statements" will be deemed to refer to only those statements
required by the Securities and Exchange Commission, to be provided no less
frequently than quarterly. Lessee will provide to Lessor (i) as soon as
practicable (within thirty (30) days) after the end of each month, the same
information which Lessee provides to its Board of Directors, but which will
include not less than a monthly income statement, balance sheet and statement of
cash flows, certified by Lessee's Chief Executive or Financial Officer to be
true and correct, and (ii) as soon as practicable (and in any event within
ninety (90) days) after the end of each fiscal year, audited balance sheets as
of the end of such year (consolidated if applicable), and related statements of
income or loss, retained earnings or deficit and changes in the financial
position and capital structure of Lessee for such year, setting forth in
comparative form the corresponding figures for the preceding fiscal year, and
accompanied by an audit report and opinion of the independent certified public
accountants selected by Lessee. Lessee will promptly furnish to Lessor any
additional information (including but not limited to tax returns, income
statements, balance sheets, and names of principal creditors) as Lessor
reasonably believes necessary to evaluate Lessee's continuing ability to meet
financial obligations.
14.3 OBLIGATION TO LEASE ADDITIONAL EQUIPMENT. Upon notice to Lessee,
Lessor will not be obligated to lease any Equipment which would have a
Commencement Date after said notice if: (i) Lessee is in
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default under this Master Lease or any Schedule; (ii) Lessee is in default under
any loan agreement, the result of which would allow the lender or any secured
party to demand immediate payment of the indebtedness; (iii) there is a material
adverse change in Lessee's credit standing; or (iv) Lessor determines (in
reasonable good faith) that Lessee will be unable to perform its obligations
under this Master Lease.
14.4 MERGER AND SALE PROVISIONS. Lessee will notify Lessor of any
proposed Merger at least twenty (20) days prior to the closing date. Lessor may,
in its discretion, either (i) consent to the assignment of the Master Lease and
all relevant Schedules to the successor entity, or (ii) terminate the Master
Lease and all relevant Schedules. If Lessor elects to consent to the assignment,
Lessee and its successor will sign the assignment documentation provided by
Lessor. If Lessor elects to terminate the Master Lease and all relevant
Schedules, then Lessee will pay Lessor all amounts then due and owing and a
termination fee equal to the present value (discounted at 6%) of the remaining
Rent for the balance of the Initial Term(s) of all Schedules , and will return
the Equipment in accordance with Section 9.
14.5 ENTIRE AGREEMENT. This Master Lease and associated Schedules
supersede all other oral or written agreements or understandings between the
parties concerning the Equipment including, for example, purchase orders. ANY
AMENDMENT OF THIS MASTER LEASE OR A SCHEDULE MAY ONLY BE ACCOMPLISHED BY A
WRITING SIGNED BY THE PARTY AGAINST WHOM THE AMENDMENT IS SOUGHT TO BE ENFORCED.
14.6 NO WAIVER. No action taken by Lessor or Lessee will be deemed to
constitute a waiver of compliance with any representation, warranty or covenant
contained in this Master Lease or a Schedule. The waiver by Lessor or Lessee of
a breach of any provision of this Master Lease or a Schedule will not operate or
be construed as a waiver of any subsequent breach.
14.7 BINDING NATURE. Each Schedule is binding upon, and inures to the
benefit of Lessor and its assigns. LESSEE MAY NOT ASSIGN ITS RIGHTS OR
OBLIGATIONS.
14.8 SURVIVAL OF OBLIGATIONS. All agreements, obligations including, but
not limited to those arising under Section 6.2, representations and warranties
contained in this Master Lease, any Schedule or in any document delivered in
connection with those agreements are for the benefit of Lessor and any Assignee
or Secured Party and survive the execution, delivery, expiration or termination
of this Master Lease.
14.9 NOTICES. Any notice, request or other communication to either party
by the other will be given in writing and deemed received upon the earlier of
actual receipt or three days after mailing if mailed postage prepaid by regular
or airmail to Lessor (to the attention of "Lease Administrator") or Lessee, at
the address set out in the Schedule or, one day after it is sent by courier or
on the same day as sent via facsimile transmission, provided that the original
is sent by personal delivery or mail by the receiving party.
14.10 APPLICABLE LAW. THIS MASTER LEASE HAS BEEN, AND EACH SCHEDULE WILL
HAVE BEEN MADE, EXECUTED AND DELIVERED IN THE STATE OF ILLINOIS AND WILL BE
GOVERNED AND CONSTRUED FOR ALL PURPOSES IN ACCORDANCE WITH THE LAWS OF THE STATE
OF ILLINOIS WITHOUT GIVING EFFECT TO CONFLICT OF LAW PROVISIONS. NO RIGHTS OR
REMEDIES REFERRED TO IN ARTICLE 2A OF THE UNIFORM COMMERCIAL CODE WILL BE
CONFERRED ON LESSEE UNLESS EXPRESSLY GRANTED IN THIS MASTER LEASE OR A SCHEDULE.
14.11 SEVERABILITY. If any one or more of the provisions of this Master
Lease or any Schedule is for any reason held invalid, illegal or unenforceable,
the remaining provisions of this Master Lease and any such Schedule will be
unimpaired, and the invalid, illegal or unenforceable provision replaced by a
mutually acceptable valid, legal and enforceable provision that is closest to
the original intention of the parties.
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14.12 COUNTERPARTS. This Master Lease and any Schedule may be executed in
any number of counterparts, each of which will be deemed an original , but all
such counterparts together constitute one and the same instrument. If Lessor
grants a security interest in all or any part a Schedule, the Equipment or sums
payable thereunder, only that counterpart Schedule marked "Secured Party's
Original" can transfer Lessor's rights and all other counterparts will be marked
"Duplicate".
14.13 NONSPECIFIED FEATURES AND LICENSED PRODUCTS. If the Equipment is
supplied from Lessor's inventory and contains any features not specified in the
Schedule, Lessee grants Lessor the right to remove any such features. Any
removal will be performed by the manufacturer or another party acceptable to
Lessee, upon the request of Lessor, at a time convenient to Lessee, provided
that Lessee will not unreasonably delay the removal of such features.
Lessee will obtain no title to Licensed Products which will at all times
remain the property of the owner of the Licensed Products. A license from the
owner may be required and it is Lessee's responsibility to obtain any required
license before the use of the Licensed Products. Lessee agrees to treat the
Licensed Products as confidential information of the owner, to observe all
copyright restrictions, and not to reproduce or sell the Licensed Products.
14.14 ADDITIONAL DOCUMENTS. Lessee will, upon execution of this Master
Lease and as may be requested thereafter, provide Lessor with a secretary's
certificate of incumbency and authority and any other documents reasonably
requested by Lessor. Upon the execution of each Schedule with a purchase price
in excess of $1,000,000. Lessee will provide Lessor with an opinion from
Lessee's counsel in a form acceptable to Lessor regarding the representations
and warranties in Section 8.
14.15 ELECTRONIC COMMUNICATIONS. Each of the parties may communicate with
the other by electronic means under mutually agreeable terms.
14.16 LESSOR'S RIGHT TO MATCH. Lessee's rights under Section 5.2 and 7.2
are subject to Lessor's right to match any sublease or upgrade proposed by a
third party. Lessee will provide Lessor with the terms of the third party offer
and Lessor will have three (3) business days to match the offer. Lessee will
obtain such upgrade from or sublease the Equipment to Lessor if Lessor has
timely matched the third party offer.
14.17 LANDLORD/MORTGAGEE WAIVER. Lessee agrees to provide Lessor with a
Landlord/Mortgagee Waiver with respect to the Equipment. Such waiver shall be in
a form satisfactory to Lessor.
14.18 EQUIPMENT PROCUREMENT CHARGES/PROGRESS PAYMENTS. Lessee hereby
agrees that Lessor shall not, by virtue of its entering into this Lease, be
required to remit any payments to any manufacturer or other third party until
Lessee accepts the Equipment subject to this Lease.
14.19 DEFINITIONS.
Advance - means the amount due to Lessor by Lessee upon Lessee's execution of
each Schedule.
Assignee - means an entity to whom Lessor has sold or assigned its rights as
owner and Lessor of Equipment.
Attachment - means any accessory, equipment or device and the installation
thereof that does not impair the original unction or use of the Equipment and is
capable of being removed without causing material damage to the Equipment and is
not an accession to the Equipment.
Casualty Loss - means the irreparable loss or destruction of Equipment.
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Casualty Value - means the greater of the aggregate Rent remaining to be paid
for the balance of the lease term or the Fair Market Value of the Equipment
immediately prior to the Casualty Loss. However, if a Casualty Value Table is
attached to the relevant Schedule its terms will control.
Commencement Certificate - means the Lessor provided certificate which must be
signed by Lessee within ten (10) days of the Commencement Date as requested by
Lessor.
Commencement Date - is defined in each Schedule.
Default Costs - means reasonable attorney's fees and remarketing costs resulting
from a Lessee default or Lessor's enforcement of its remedies.
Equipment - means the property described on a Schedule and any replacement for
that property required or permitted by this Master Lease or a Schedule but not
including any Attachment.
Event of Default - means the events described in Subsection 13.1.
Fair Market Value - means the aggregate amount which would be obtainable in an
arm's-length transaction between an informed and willing buyer/user and an
informed and willing seller under no compulsion to Sell.
Initial Term - means the period of time beginning on the first day of the first
full Rent Interval following the Commencement Date for all items of Equipment
and continuing for the number of Rent Intervals indicated on a Schedule.
Installation Date - means the day on which Equipment is installed and qualified
for a commercially available manufacturer's standard maintenance contract or
warranty coverage, if available.
Interim Rent - means the pro-rata portion of Rent due for the period from the
Commencement Date through but not including the first day of the first full Rent
Interval included in the Initial Term.
Licensed Products - means any software or other licensed products attached to
the Equipment.
Like Equipment - means replacement Equipment which is lien free and of the same
model, type, configuration and manufacture as Equipment.
Like Part - means a substituted part which is lien free and of the same
manufacturer and part number as the removed part, and which when installed on
the Equipment will be eligible for maintenance coverage with the manufacturer of
the Equipment.
Merger - means any consolidation or merger of the Lessee with or into any other
corporation or entity, any sale or conveyance of all or substantially all of the
assets of the Lessee to any other person or entity or any stock acquisition of
the Lessee by any other person or entity.
Notice Period - means the time period described in a Schedule during which
Lessee may give Lessor notice of the termination of the term of that Schedule.
Overdue Rate - means the lesser of five percent (5%) of the payment due or the
maximum rate permitted by the law or the state where the Equipment is located.
Owner - means the owner of Equipment.
Reconfiguration - means any change to Equipment that would upgrade or downgrade
the performance capabilities or the Equipment in any way.
-9-
10
Rent - means the rent, including Interim Rent. Lessee will pay for each item of
Equipment expressed in a Schedule either as a specific amount or an amount equal
to the amount which Lessor pays for an item of Equipment Multiplied by a lease
rate factor plus all other amounts due to Lessor under this Master Lease or a
Schedule.
Rent Interval - means a full calendar month or quarter as indicated on a
Schedule.
Schedule - means an Equipment Schedule which incorporates all of the terms and
conditions of this Master Lease and, for purposes of Section 14.12, its
associated Commencement Certificate(s).
Secured Party - means an entity to whom Lessor has granted a security interest
in a Schedule and related Equipment for the purpose of securing a loan.
IN WITNESS WHEREOF, the parties hereto have executed this Master Lease on
or as of the day and year first above written.
COMBICHEM, INC. COMDISCO, INC.
as Lessee as Lessor
By: /s/ Xxxxxx X. Xxxxxx By: /s/ Illegible
--------------------------- --------------------------------
Title: President & CEO Title: Illegible
------------------------ -----------------------------
-10-
11
EXHIBIT A
(MULTIPLE MONTHLY DELIVERY)
SCHEDULE NO. VL-1 DATED AS OF November 16, 1994
TO MASTER LEASE AGREEMENT DATED AS OF November 16, 1994 ("MASTER LEASE")
LESSEE: CombiChem, Inc. LESSOR: COMDISCO, INC.
Admin. Contact/Phone No.: Address for all Notices:
Xxxx Xxxxx
Controller 0000 Xxxxx Xxxxx Xxxx
(000) 000-0000 Xxxxxxxx, Xxxxxxxx 00000
Fax (000) 000-0000 Attn: Capital Equipment Lease
dministration
Address for Notices:
00000 Xxxxxxxxx Xxxx
Xxxxx 000
Xxx Xxxxx, XX 00000
Attn.:
Central Billing Location: PAYING AGENT:
Same as above Comdisco, Inc.
X.X. Xxx 00000
Attn.: Xxxxxxx, Xxxxxxxx 00000
Lessee Reference No.: ___________________
(24 digits maximum)
Location of Equipment: Initial Term: 48 months
00000 X. Xxxxxx Xxxxx Xxxx
Xx Xxxxx, XX 00000
Lease Rate Factor: 2.469%
Attn.:
EQUIPMENT (as defined below): Advance:
Phase I: $5,555.25
Phase II thru V: $1,234.50
Phase VI: $1,851.75
Item Machine Type/ Serial
No. Qty. Manufacturer Feature Description Number Rent
---- ---- ------------ ------------- ----------- ------ ----
Equipment specifically approved by Lessor, which shall be delivered to and
accepted by Lessee during the period November 16, 1994 through November
15, 1995, for which Lessor receives vendor invoices approved for payment,
up to an aggregate purchase price of $1,000,000 available in the phases
provided below:
12
Phase I $450,000
Phase II $100,000
Phase III $100,000
Phase IV $100,000
Phase V $100,000
Phase VI $150,000
Phase I shall be available prior to next round of equity and Phases II-VI
shall be available after the next round of equity of at least $1,500,000.
Notwithstanding anything to the contrary contained in this Lease, if
Lessee closes a preferred equity financing (excluding bridge debt
financing) equal to or greater than $1,500,000 ("Next Round") on or before
January 31, 1995, then Lessor is firmly committed to make Phases II
through VI available for the period described above, provided no Event of
Default occurs. If Lessee does not close the Next Round by January 31,
1995, Lessor's commitment to make Phase II - VI funds available will be at
Lessor's discretion. Equipment shall not include upgrades thereto and
further excludes, leasehold improvements, installation costs and delivery
costs, rolling stock, special tooling, custom equipment, "stand-alone"
software, application software bundled into computer hardware, hand held
items, molds and fungible items. In no event shall any furniture exceed
ten percent (10%) of Lessor's aggregate cost hereunder.
1. NOTICE PERIOD: Not less than ninety (90) days nor more than twelve (12)
months prior to the expiration of the lease term.
2. EQUIPMENT PURCHASE
Lessee acknowledges that it has either received or approved Lessor's
purchase documentation for the Equipment. The aggregate purchase price referred
to on the face of this Schedule shall include all Equipment purchased by Lessor,
consisting of amounts financed under sections (i), (ii) and (iii) below.
(i) NEW EQUIPMENT. Lessor will purchase new Equipment which is
specifically approved by Lessor.
(ii) SALE-LEASEBACK EQUIPMENT. Any in-place Equipment installed at
Lessee's site and to which Lessee has clear title and ownership may
be considered by Lessor for inclusion under this Lease (the
"Sale-Leaseback Transaction"). Any request for a Sale-Leaseback
Transaction must be submitted to Lessor in writing (along with
accompanying evidence of Lessee's Equipment ownership satisfactory
to Lessor for all Equipment submitted) no Later than December 16,
1994 *. Lessor will not perform a Sale-Leaseback Transaction for any
request or accompanying Equipment ownership documents which arrive
after the date marked above by an asterisk (*). Further, any
sale-leaseback Equipment will be placed on lease subject to: (1)
Lessor prior approval of the Equipment; and (2) if approved, at
Lessor's actual net appraised Equipment value pursuant to the
schedule below:
ORIGINAL EQUIPMENT PERCENT OF ORIGINAL MANUFACTURER'S
MANUFACTURER'S SHIP DATE NET EQUIPMENT COST PAID BY LESSOR
------------------------ ----------------------------------
Between 9/17/94 and 12/16/94 100%
Between 7/17/94 and 9/16/94 80%
Between 4/17/94 and 7/16/94 70%
Between 1/17/94 and 4/16/94 65%
Between 10/17/93 and 1/16/94 60%
13
(iii) USED EQUIPMENT. Lessor will purchase "used" Equipment which is
obtained from a third party by Lessee for its use subject to: (1)
Lessor's prior approval of the Equipment; and (2) at Lessor's
appraised value for such used Equipment.
3. COMMENCEMENT DATE
The Commencement Date for each item of Equipment will be its Installation
Date. Lessee agrees to confirm the Commencement Date by providing Lessor with
Invoices containing the Equipment location, description, serial number and cost,
the Installation Date and Lessee's signature. Lessor will summarize all Invoices
and/or IAFs received in the same calendar month provided however that each
Commencement Certificate must cover equipment with an equipment cost of at Least
$10,000 or Lessor shall include such equipment on the Commencement Certificate
for the next succeeding month into a Commencement Certificate in the form
attached to this Schedule as Exhibit 1 and the Initial Term will begin the first
day of the calendar month thereafter. Each Commencement Certificate will
incorporate the terms and conditions of the Master Lease and this Schedule and
will constitute a separate Schedule. Notwithstanding the foregoing, if the
Equipment pertains to Sale-Leaseback Equipment the Commencement Date will be the
date Lessor tenders the purchase price.
4. OPTION TO EXTEND
So long as no Event of Default shall have occurred and be continuing,
Lessee will have the right to extend the Initial Term of this Schedule for a
period of one (1) year by giving Lessor at least ninety days (90) days written
notice prior to the expiration of the Initial Term. In such event, the rent to
be paid during said extended period shall be mutually agreed upon and if the
parties cannot mutually agree, then the Lease shall continue in full force and
effect pursuant to the existing terms and conditions until terminated in
accordance with its terms. This Schedule will continue in effect following said
extended period until terminated by either party upon not less than ninety (90)
days prior written notice, which notice shall be effective as of the Rent
Interval next following receipt.
5. PURCHASE OPTION
So long as no Event of Default has occurred and is continuing hereunder,
and upon written notice no earlier than twelve (12) months and no later than
ninety days (90) days prior to the expiration of the Initial Term, Lessee will
have the option at the expiration of the Initial Term of this Schedule to
purchase all, but not less than all, of the Equipment listed herein for a
purchase price not to exceed fifteen percent (15%) of the equipment's original
cost and upon terms and conditions to be mutually agreed upon by the parties
following Lessee's written notice, plus any taxes applicable at time of
purchase. Said purchase price shall be paid to Lessor at Least five (5) days
before the expiration date of the Initial Term. Title to the Equipment shall
automatically pass to Lessee upon payment in full of the purchase price but, in
no event, earlier than the expiration of the fixed Initial Term. If the parties
are unable to agree on the purchase price or the terms and conditions with
respect to said purchase, then the Lease with respect to this Equipment shall
remain in full force and effect, unless terminated by either party. It is agreed
and understood that Lessor is retaining a purchase money security interest in
the Equipment listed herein and this Schedule shall constitute a Security
Agreement under the Uniform Commercial Code of the state in which the Equipment
is located. Lessor and Lessee agree that for purposes of this paragraph, any
licensed software will not be considered part of the Equipment.
6. ENVIRONMENTAL CONDITION
a. Indemnification. Lessee shall fully and promptly pay, perform,
discharge, defend, indemnify and hold harmless Lessor and its Affiliates
(defined below), successors and assigns, directors, officers, employees
and agents from and against any Environmental Claim or Environmental Loss
(defined below).
b. Lessee Cooperation. In the event of an Environmental Claim, Lessee
shall, upon request, immediately provide Lessor with copies of all
correspondence reports, notices, orders, findings,
14
declarations and other materials pertinent to the Lessee's compliance with
and requirements of any Environmental Law (defined below).
c. Lessee Insurance. If Lessee is required by law to obtain an
environmental liability policy, the Lessee shall name Lessor as an
additional insured on its environmental liability insurance policy.
d. Adverse Environmental Condition - means (i) the existence or the
continuation of the existence, of an Environmental Emission (including,
without limitation, a sudden or non-sudden accidental or non- accidental
Environmental Emission), of or exposure to, any substance, chemical,
material, pollutant, contaminant, odor or audible noise or other release
or emission in, into or onto the environment (including without
limitation, the air, ground, water or any surface) at, in, by, from or
related to any Equipment, (ii) the environmental aspect of the
transportation, storage, treatment or disposal of materials in connection
with the operation of any Equipment, or (iii) the violation, or alleged
violation of any statutes, ordinances, orders, rules, regulations, permits
or licenses of, by or from any governmental authority, agency or court
relating to environmental matters connected with any Equipment.
e. Affiliate - means any entity that is directly or indirectly, through
one or more intermediaries, controls or is controlled by, or is under
common control with Lessor.
f. Environmental Claim - means any accusation, allegation, notice of
violation, claim, demand, abatement or other order or direction
(conditional or otherwise) by an governmental authority or any Person for
personal injury (including sickness, disease, or death), tangible or
intangible property damage, damage to the environment or natural
resources, nuisance, pollution, contamination or other adverse effects on
the environment, or for fines, penalties or restrictions, resulting from
or based upon any Adverse Environmental Condition (defined above).
g. Environmental Emission - means any actual or threatened release,
spill, omission, leaking, pumping, injection, deposition, disposal,
discharge, dispersal, leaching or migration into the indoor or outdoor
environment, or into or out of any of the Equipment, including, without
limitation, the movement of any Contaminant or other substance through or
in the air, soil, surface water, groundwater or property.
h. Environmental Law - means 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 Federal Water Pollution Control Act (33 U.S.C. 1251, et seq.),
the Resource Conservation and Recovery Act (42 U.S.C. 6901 et seq.), the
Clean Air Act (42 U.S.C. 7401 et seq.), the Toxic Substances Control Act
(15 U.S.C. 2601 et seq.), the Federal Insecticide, Fungicide, and
Rodenticide Act (7 U.S.C. 1361 et seq.), and the Occupational Safety and
Health Act (10 U.S.C. 651 et seq.), as these laws have been amended or
supplemented, and any analogous foreign, state or local statutes, and the
regulations promulgated pursuant thereto.
i. Environmental Loss - means 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.
j. Person - means any individual, partnership, corporation, trust,
unincorporated organization, government or department or agency thereof
and any other entity.
15
7. SPECIAL TERMS
The terms and conditions of the Master Lease Agreement as they pertain to this
Schedule are hereby modified and amended as follows:
A. Section 5.2, "Relocation or Sublease".
In the first Line insert "Lessor's" before "prior written consent" and
insert "which shall not be unreasonably withheld" before "Lessee may
relocate Equipment".
B. Section 5.3, "Assignment by Lessor".
In paragraph A line 3 after "so long as" insert "there has not been an
Event of Default,".
C. Section 6.2, "Taxes and Fees".
Delete the parenthetical phrase in the second line of the paragraph.
D. Section 8, "Representations and Warranties of Lessee".
Paragraph (d) insert at the beginning of the sentence "To Lessee's
knowledge,".
Paragraph (f) add to the end of the paragraph 11", the infringement or
conflict of which would have a material adverse effect on the Lessee."
E. Section 9, "Delivery and Return of Equipment".
Delete this section in its entirety and replace it with the following:
Delivery and Return of Equipment. Lessee assumes the full expense of
transportation to its initial location, installation, deinstallation, and
return to a location within the continental United States (including
without limitation, the expense of in-transit insurance) all pursuant to
Lessee's instructions and manufacturer's specifications. Regarding
deinstallation, Lessee will assure that the Equipment is deinstalled by
the manufacturer in accordance with the manufacturer's recommended
procedures and any Environmental Law, and returned with a Certificate of
Decontamination in the same operating order, repair, condition and
appearance as when originally installed (less normal wear and tear and
depreciation) meeting all original Equipment manufacturer's specifications
for continued manufacturer's maintenance, and accompanied by all
associated documents, manuals, maintenance records for the duration of the
Initial Term, spare parts and accessories. In connection with
deinstallation, any contaminant removed from the Equipment will be removed
and transported by licensed waste removal transporter who shall name
Lessor as additional insured on its environmental liability policy. During
the period subsequent to the receipt of a termination notice under Section
2, Provided Lessor provides Lessee with reasonably adequate notice and
Lessee approves the time for any such demonstration, Lessor may, after
providing reasonable notice to Lessee demonstrate the Equipment's
operation in place and Lessee will supply any of its personnel as may
reasonably be required to assist in the demonstrations.
F. Section 12, "Risk of Loss".
In the second paragraph add the following to the end of the paragraph "If
Lessor agrees to accept like equipment as replacement for the loss or
destruction of the equipment, Lessee will not be obligated to replace the
Equipment for a cost greater than the Casualty Value, and Lessee shall be
entitled to retain all of the insurance proceeds received to reimburse
Lessee for its cost to replace the Equipment."
G. Section 13.1, "Default".
16
Paragraph (a) insert the word "business" before the word "days"; insert
"Lessee's receipt of" before "written notice"; add to the end of the
sentence "of such non-payment".
Paragraph (b) in the first Line insert "material" before the word "term".
In the last line, insert "Lessee's receipt of" before "written notice".
Paragraph (c) after the phrase "failure by Lessee to pay its debts when
due" insert "where such past due amounts exceed $50,000 in the aggregate
or any lender has the right to accelerate more than $50,000 of debt", in
the third Line after the words "bankruptcy or insolvency law" insert "if
such is not removed within sixty days (60)."
H. Section 14.3, "Obligations to Lease Additional Equipment".
In the first line insert "written" before the word "notice". In Line 3
clause (i) after "master lease or any schedule" insert "and such default
is not cured within five (5) days of written notice".
Add to the end of the paragraph: "If Lessor's obligations to lease
additional Equipment are suspended hereunder, Lessee may request a
restoration of such leaseline upon demonstration to Lessor to Lessor's
satisfaction that Lessee has cured the defect which gave rise to the
suspension of Lessor's lease obligation."
I. Section 14.4 "Merger and Sale Provisions".
The second sentence of Section 14.4 of the Master Lease shall be deleted
in its entirety and replaced with the following; "Lessor shall have the
right to consent to the assignment of the Master Lease and all relevant
Schedules to the successor entity, which consent shall not be unreasonably
withheld. If such consent is reasonably withheld, then Lessor shall have
the option to terminate the Master Lease and all relevant Schedules."
J. Section 14.7, "Binding Nature".
Add the end of the paragraph "without the prior written consent of Lessor
which shall not be unreasonably withheld."
K. Section 14.8, "Survival of Obligations".
In the Last Line, "execution, delivery" shall be revised to read
"execution and delivery", delete "expiration or termination". Add to the
end of the section: "Sections 7.1, 9, and 11, shall survive expiration or
termination of this Master Lease until all duties thereunder have been
discharged by the parties."
L. Section 14.9, "Notices".
In the Last Line delete the word "receiving" and replace with the word
"disclosing" before the word "party".
M. Section 14.10, "Applicable Law".
Delete "Illinois" and replace with "California" wherever it appears.
N. Section 14.17, "LandLord/Mortgagee Waiver".
After "Lessee agrees to" insert "use reasonable efforts, (which shall not
include additional monetary payment to Landlord other than deminimis
amounts), to" before "provide Lessor with".
O. Section 14.19, "Definitions".
17
Delete Interim Rent definition and replace with:
"Interim Rent - means a daily rate of .0278% of Lessor's Cost for each day
from the Commencement Date through but not including the first day of the
first full Rent Interval included in the Initial Term."
Master Lease: This Schedule is issued pursuant to the Master Lease identified on
page 1 of this Schedule. All of the terms and conditions of the Master Lease are
incorporated in and made a part of this Schedule as if they were expressly set
forth in this Schedule. The parties hereby reaffirm all of the terms and
conditions of the Master Lease (including, without Limitation, the
representations and warranties set forth in Section 8) except as modified herein
by this Schedule. This Schedule may not be amended or rescinded except by a
writing signed by both parties.
COMBICHEM, INC. COMDISCO, INC.
as Lessee as Lessor
By: /s/ Xxxxxx X. Xxxxxx By: /s/ Illegible
--------------------------- ------------------------------
Title: President & CEO Title: Illegible
------------------------ ---------------------------
Date: Nov. 23, 1994 Date: 12/5/94
------------------------ ----------------------------
18
EXHIBIT 1
COMMENCEMENT CERTIFICATE
This Certificate dated is executed pursuant to Schedule No. to the Master
Lease Agreement dated between Comdisco, Inc. ("Lessor") and ("Lessee"). All of
the terms, conditions, representations and warranties of the Master Lease and
Schedule No. are incorporated herein and made a part hereof and this
Commencement Certificate constitutes a Schedule for the Equipment described
below.
1. Equipment:
Equipment
Qty Mfgr Type/Model Serial # Location
--- ---- ---------- -------- --------
(See attached Invoices)
2. Installation Date: (See attached Invoices)
3. Initial Term Starts on:
4. Total Equipment Cost:
5. Rent:
6. Representations of Lessee:
Each item of Equipment has been delivered to the location indicated above,
tested, inspected, found to be in good working order and accepted by the
Lessee on its Installation Date.
19
EXHIBIT A
(MULTIPLE MONTHLY DELIVERY)
SCHEDULE NO. VL-2 DATED AS OF April 15, 1996
----
TO MASTER LEASE AGREEMENT DATED AS OF November 16, 1994 ("MASTER LEASE")
LESSEE: CombiChem, Inc. LESSOR: COMDISCO, INC.
Admin. Contact/Phone No.: Address for all Notices:
Controller 0000 Xxxxx Xxxxx Xxxx
Ph. (619) 530-0484 Xxxxxxxx, Xxxxxxxx 00000
Fax (000) 000-0000 Attn: Capital Equipment Lease
Administration
Address for Notices:
0000 Xxxxxx Xxxxx Xx
Xxx Xxxxx, XX 00000
Attn.:
Central Billing Location: PAYING AGENT:
Same as above Comdisco, Inc.
X.X. Xxx 00000
Attn.: Xxxxxxx, Xxxxxxxx 00000
Lessee Reference No.: _______________________
(24 digits maximum)
Location of Equipment: Initial Term: 48 months
Same as above
Lease Rate Factor: 2.425%
Attn.:
EQUIPMENT (as defined below): Advance: $24,250
Item Machine Type/ Serial
No. Qty. Manufacturer Feature Description Number Rent
--- ---- ------------ ------------ ----------- ------ ----
Equipment specifically approved by Lessor, which shall be delivered to and
accepted by Lessee during the period April 15, 1996 through December 15, 1996
("Equipment Delivery Period"), for which Lessor receives vendor invoices
approved for payment, up to an aggregate purchase price of $1,000,000
("Commitment Amount"); excluding custom use equipment, leasehold improvements,
installation costs and delivery costs, rolling stock, special tooling,
"stand-alone" software, application software bundled into computer hardware,
hand held items, molds and fungible items.
1. NOTICE PERIOD. Not less than ninety (90) days nor more than twelve (12)
months prior to the expiration of the lease term.
2. EQUIPMENT PURCHASE
20
Lessee acknowledges that it has either received or approved Lessor's
purchase documentation for the Equipment. The aggregate purchase price referred
to on the face of this Schedule shall include all Equipment purchased by Lessor,
consisting of amounts financed under Sections (i), (ii) and (iii) below.
(i) NEW EQUIPMENT. Lessor will purchase new Equipment which is
specifically approved by Lessor.
(ii) SALE-LEASEBACK EQUIPMENT. Any in-place Equipment installed at
Lessee's site and to which Lessee has clear title and ownership may
be considered by Lessor for inclusion under this Lease (the
"Sale-Leaseback Transaction"). Any request for a Sale-Leaseback
Transaction must be submitted to Lessor in writing (along with
accompanying evidence of Lessee's Equipment ownership satisfactory
to Lessor for all Equipment submitted) no later than May 15,1996*.
Lessor will not perform a Sale-Leaseback Transaction for any request
or accompanying Equipment ownership documents which arrive after the
date marked above by an asterisk (*). Further, any sale-leaseback
Equipment will be placed on lease subject to: (1) Lessor prior
approval of the Equipment; and (2) if approved, at Lessor's actual
net appraised Equipment value pursuant to the schedule below:
ORIGINAL EQUIPMENT INVOICE PERCENT OF ORIGINAL MANUFACTURER'S
DATE NET EQUIPMENT COST PAID BY LESSOR
-------------------------- ---------------------------------
Between 02/15/95 and 05/15/96 100%
Between 12/16/95 and 02/14/96 80%
Between 09/16/95 and 12/15/95 70%
(iii) USED EQUIPMENT. Lessor will purchase "used" Equipment which is
obtained from a third party by Lessee for its use subject to: (1)
Lessor's prior approval of the Equipment; and (2) at Lessor's
appraised value for such used Equipment.
3. COMMENCEMENT DATE
The Commencement Date for each item of Equipment will be its Installation
Date. Lessee agrees to confirm the Commencement Date by providing Lessor with
Invoices containing the Equipment location, description, serial number and cost,
the Installation Date and Lessee's signature. Lessor will summarize all Invoices
and/or IAFs received in the same calendar month provided however that each
Commencement Certificate must cover equipment with an equipment cost of at least
$10,000 or Lessor shall include such equipment on the Commencement Certificate
for the next succeeding month into a Commencement Certificate in the form
attached to this Schedule as Exhibit 1 and the Initial Term will begin the first
day of the calendar month thereafter. Each Commencement Certificate will
incorporate the terms and conditions of the Master Lease and this Schedule and
will constitute a separate Schedule. Notwithstanding the foregoing, if the
Equipment pertains to Sale-Leaseback Equipment the Commencement Date will be the
date Lessor tenders the purchase price.
4. OPTION TO EXTEND
So long as no Event of Default shall have occurred and be continuing,
Lessee will have the right to extend the Initial Term of this Schedule for a
period of one (1) year by giving Lessor at least ninety days (90) days written
notice prior to the expiration of the Initial Term. In such event, the rent to
be paid during said extended period shall be mutually agreed upon and if the
parties cannot mutually agree, then the Lease shall continue in full force and
effect pursuant to the existing terms and conditions until terminated in
accordance with its terms. This Schedule will continue in effect following said
extended period until terminated by either party upon not less than ninety (90)
days prior written notice, which notice shall be effective as of the Rent
Interval next following receipt.
21
5. PURCHASE OPTION
So long as no Event of Default has occurred and is continuing hereunder,
and upon written notice no earlier than twelve (12) months and no later than
ninety days (90) days prior to the expiration of the Initial Term, Lessee will
have the option at the expiration of the Initial Term of this Schedule to
purchase all, but not less than all, of the Equipment listed herein for a
purchase price not to exceed twenty percent (20%) of the equipment's original
cost and upon terms and conditions to be mutually agreed upon by the parties
following Lessee's written notice, plus any taxes applicable at time of
purchase. Said purchase price shall be paid to Lessor at least five (5) days
before the expiration date of the Initial Term. Title to the Equipment shall
automatically pass to Lessee upon payment in full of the purchase price but, in
no event, earlier than the expiration of the fixed Initial Term. If the parties
are unable to agree on the purchase price or the terms and conditions with
respect to said purchase, then the Lease with respect to this Equipment shall
remain in full force and effect, unless terminated by either party. It is agreed
and understood that Lessor is retaining a purchase money security interest in
the Equipment listed herein and this Schedule shall constitute a Security
Agreement under the Uniform Commercial Code of the state in which the Equipment
is located. Lessor and Lessee agree that for purposes of this paragraph, any
licensed software will not be considered part of the Equipment.
6. ENVIRONMENTAL CONDITION
a. Indemnification. Lessee shall fully and promptly pay, perform,
discharge, defend, indemnify and hold harmless Lessor and its Affiliates
(defined below) , successors and assigns, directors, officers, employees
and agents from and against any Environmental Claim or Environmental Loss
(defined below).
b. Lessee Cooperation. In the event of an Environmental Claim, Lessee
shall, upon request, immediately provide Lessor with copies of all
correspondence reports, notices, orders, findings, declarations and other
materials pertinent to the Lessee's compliance with and requirements of
any Environmental Law (defined below) .
c. Lessee Insurance. If Lessee is required by law to obtain an
environmental liability policy, the Lessee shall name Lessor as an
additional insured on its environmental liability insurance policy.
d. Adverse Environmental Condition - means (i) the existence or the
continuation of the existence, of an Environmental Emission (including,
without limitation, a sudden or non-sudden accidental or non- accidental
Environmental Emission), of or exposure to, any substance, chemical,
material, pollutant, contaminant, odor or audible noise or other release
or emission in, into or onto the environment (including without
limitation, the air, ground, water or any surface) at, in, by, from or
related to any Equipment, (ii) the environmental aspect of the
transportation, storage, treatment or disposal of materials in connection
with the operation of any Equipment, or (iii) the violation, or alleged
violation of any statutes, ordinances, orders, rules, regulations, permits
or licenses of, by or from any governmental authority, agency or court
relating to environmental matters connected with any Equipment.
e. Affiliate - means any entity that is directly or indirectly, through
one or more intermediaries, controls or is controlled by, or is under
common control with Lessor.
f. Environmental Claim - means any accusation, allegation, notice of
violation, claim, demand, abatement or other order or direction
(conditional or otherwise) by an governmental authority or any Person for
personal injury (including sickness, disease, or death), tangible or
intangible property damage, damage to the environment or natural
resources, nuisance, pollution, contamination or other adverse effects on
the environment, or for fines, penalties or restrictions, resulting from
or based upon any Adverse Environmental Condition (defined above).
g. Environmental Emission - means any actual or threatened release,
spill, omission, leaking, pumping, injection, deposition, disposal,
discharge, dispersal, leaching or migration into the indoor or outdoor
environment, or into or out of any of the Equipment, including, without
limitation, the
22
\ movement of any Contaminant or other substance through or in the air,
soil, surface water, groundwater or property.
h. Environmental Law - means 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 Federal Water Pollution Control Act (33 U.S.C. 1251, et seq.),
the Resource Conservation and Recovery Act (42 U.S.C. 6901 et seq.), the
Clean Air Act (42 U.S.C. 7401 et seq.), the Toxic Substances Control Act
(15 U.S.C. 2601 et seq.), the Federal Insecticide, Fungicide, and
Rodenticide Act (7 U.S.C. 1361 et seq.), and the Occupational Safety and
Health Act (10 U.S.C. 651 et seq.), as these laws have been amended or
supplemented, and any analogous foreign, state or local statutes, and the
regulations promulgated pursuant thereto.
i. Environmental Loss - means 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.
j. Person - means any individual, partnership, corporation, trust,
unincorporated organization, government or department or agency thereof
and any other entity.
7. SPECIAL TERMS
The terms and conditions of the Master Lease Agreement as they pertain to this
Schedule are hereby modified and amended as follows:
A. Section 5.2, "Relocation or Sublease".
In the first line insert "Lessor's" before "prior written consent" and
insert "which shall not be unreasonably withheld" before "Lessee may
relocate Equipment".
B. Section 5.3, "Assignment by Lessor".
In paragraph A line 3 after "so long as" insert "there has not been an
Event of Default,".
C. Section 6.2, "Taxes and Fees".
Delete the parenthetical phrase in the second line of the paragraph.
D. Section 8, "Representations and Warranties of Lessee".
Paragraph (d) insert at the beginning of the sentence "To Lessee's
knowledge,".
Paragraph (f) add to the end of the paragraph", the infringement or
conflict of which would have a material adverse effect on the Lessee."
E. Section 9, "Delivery and Return of Equipment".
Delete this section in its entirety and replace it with the following:
DELIVERY AND RETURN OF EQUIPMENT. Lessee assumes the full expense of
transportation to its initial location, installation, deinstallation, and
return to a location within the continental United States (including
without limitation, the expense of intransit insurance) all pursuant to
Lessee's instructions and manufacturer's specifications. Regarding
deinstallation, Lessee will assure that the Equipment is deinstalled by
the manufacturer in accordance with the manufacturer's recommended
procedures and any
23
Environmental Law, and returned with a Certificate of Decontamination in
the same operating order, repair, condition and appearance as when
originally installed (less normal wear and tear and depreciation) meeting
all original Equipment manufacturer's specifications for continued
manufacturer's maintenance, and accompanied by all associated documents,
manuals, maintenance records for the duration of the Initial Term, spare
parts and accessories. In connection with deinstallation, any contaminant
removed from the Equipment will be removed and transported by licensed
waste removal transporter who shall name Lessor as additional insured on
its environmental liability policy. During the period subsequent to the
receipt of a termination notice under Section 2, Provided Lessor provides
Lessee with reasonably adequate notice and Lessee approves the time for
any such demonstration, Lessor may, after providing reasonable notice to
Lessee demonstrate the Equipment's operation in place and Lessee will
supply any of its personnel as may reasonably be required to assist in the
demonstrations.
F. Section 12, "Risk of Loss".
First paragraph, third sentence after the words "as loss payee" insert the
following "up to the then current casualty value". In the second paragraph
add the following to the end of the paragraph "If Lessor agrees to accept
like equipment as replacement for the loss or destruction of the
equipment, Lessee will not be obligated to replace the Equipment for a
cost greater than the Casualty Value, and Lessee shall be entitled to
retain all of the insurance proceeds received to reimburse Lessee for its
cost to replace the Equipment."
G. Section 13.1, "Default".
Paragraph (a) insert the word "business" before the word "days"; insert
"Lessee's receipt of" before "written notice"; add to the end of the
sentence "of such non-payment".
Paragraph (b) in the first line insert "material" before the word "term".
In the last line, insert "Lessee's receipt of" before "written notice".
Paragraph (c) after the phrase "failure by Lessee to pay its debts when
due" insert "where such past due amounts exceed $50,000 in the aggregate
or any lender has the right to accelerate more than $50,000 of debt", in
the third line after the words "bankruptcy or insolvency law" insert "if
such is not removed within sixty days (60)."
H. Section 14.3, "Obligations to Lease Additional Equipment".
In the first line insert "written" before the word "notice". In line 3
clause (i) after "master lease or any schedule" insert "and such default
is not cured within five (5) days of written notice".
Add to the end of the paragraph: "If Lessor's obligations to lease
additional Equipment are suspended hereunder, Lessee may request a
restoration of such leaseline upon demonstration to Lessor to Lessor's
satisfaction that Lessee has cured the defect which gave rise to the
suspension of Lessor's lease obligation."
I. Section 14.4 "Merger and Sale Provisions".
The second sentence of Section 14.4 of the Master Lease shall be deleted
in its entirety and replaced with the following; "Lessor shall have the
right to consent to the assignment of the Master Lease and all relevant
Schedules to the successor entity, which consent shall not be unreasonably
withheld. If such consent is reasonably withheld, the Lessor shall have
the option to terminate the Master Lease and all relevant Schedules.
J. Section 14.1, "Binding Nature".
24
Add the end of the paragraph "without the prior written consent of Lessor
which shall not be unreasonably withheld."
K. Section 14.8, "Survival of Obligations".
In the last line, "execution, delivery" shall be revised to read
"execution and delivery", delete "expiration or termination". Add to the
end of the section: "Sections 7.1, 9, and 11, shall survive expiration or
termination of this Master Lease Until all duties thereunder have been
discharged by the parties."
L. Section 14.9, "Notices".
In the last line delete the word "receiving" and replace with the word
"disclosing" before the word "party".
M. Section 14.10, "Applicable Law".
Delete "Illinois" and replace with "California" wherever it appears.
N. Section 14.17, "Landlord/Mortgagee Waiver".
After "Lessee agrees to" insert "use reasonable efforts, (which shall not
include additional monetary payment to Landlord other than deminimis
amounts), to" before "provide Lessor with".
O. Section 14.19, "Definitions".
Delete Interim Rent definition and replace with:
"Interim Rent - means a daily rate of .0278% of Lessor's Cost for each day
from the Commencement Date through but not including the first day of the
first full Rent Interval included in the Initial Term."
MASTER LEASE: This Schedule is issued pursuant to the Master Lease identified on
page 1 of this Schedule. All of the terms and conditions of the Master Lease are
incorporated in and made a part of this Schedule as if they were expressly set
forth in this Schedule. The parties hereby reaffirm all of the terms and
conditions of the Master Lease (including, without limitation, the
representations and warranties set forth in Section 8) except as modified herein
by this Schedule. This Schedule may not be amended or rescinded except by a
writing signed by both parties.
COMBICHEM, INC. COMDISCO, INC.
as Lessee as Lessor
By: /s/ Illegible By: /s/ Xxxxx X. Xxxx
--------------------------- ------------------------------
Title: President & CEO Title: President, Venture Lease Division
------------------------ ---------------------------
Date: 4-25-96 Date:
------------------------ ----------------------------
25
18 SLXXXXX-XX
EXHIBIT 1
SUMMARY EQUIPMENT SCHEDULE
This Summary Equipment Schedule dated XXXX is executed pursuant to
Equipment Schedule No. X to the Master Lease Agreement dated XXXX between
Comdisco, Inc. ("Lessor") and XXXX ("Lessee"). All of the terms, conditions,
representations and warranties of the Master Lease Agreement and Equipment
Schedule No. X are incorporated herein and made a part hereof, and this Summary
Equipment Schedule constitutes a Schedule for the Equipment on the attached
invoices.
1. For Period Beginning: And Ending:
2. Initial Term Starts on: Initial Term:
(Number of Rent Intervals)
3. Total Summary Equipment Cost:
4. Lease Rate Factor:
5. Rent:
6. Acceptance Doc Type:
26
EXHIBIT A
(MULTIPLE MONTHLY DELIVERY)
SCHEDULE NO. VL-3 DATED AS OF April 15, 1996
----
TO MASTER LEASE AGREEMENT DATED AS OF November 16, 1994 ("MASTER LEASE"")
LESSEE: CombiChem, Inc. LESSOR: COMDISCO, INC.
Xxxxx.Xxxxxxx/Phone No.: Address for all Notices:
Controller 0000 Xxxxx Xxxxx Xxxx
Ph. (619) 530-0484 Xxxxxxxx, Xxxxxxxx 00000
Fax (000) 000-0000 Attn: Capital Equipment Lease
Administration
Address for Notices:
0000 Xxxxxx Xxxxx Xx
Xxx Xxxxx, XX 00000
Attn.:
Central Billing Location: PAYING AGENT:
Same as above Comdisco, Inc.
X.X. Xxx 00000
Attn.: Xxxxxxx, Xxxxxxxx 00000
Lessee Reference No.: ___________________
(24 digits maximum)
Location of Equipment: Initial Term: 36 months
Same as above
Lease Rate Factor: 3.200%
Attn:
EQUIPMENT (as defined below): Advance: $38,400
Leasehold improvements (which shall be considered "Equipment")
specifically approved by Lessor which shall be accepted by Lessee during
the period April 15, 1996 through December 15, 1996 ("Equipment Delivery
Period"), for which Lessor receives vendor invoices approved for payment,
up to an aggregate purchase price of $325, 000 ("Commitment Amount")
("Phase I").
1. NOTICE PERIOD. Note less than ninety (90) days nor more than twelve (12)
months prior to the expiration of the lease term.
27
2. EQUIPMENT PURCHASE
Lessee acknowledges that it has either received or approved Lessor's
purchase documentation for the Equipment. The aggregate purchase price referred
to on the face of this Schedule shall include all Equipment purchased by Lessor,
consisting of amounts financed under Sections (i), (ii) and (iii) below.
(i) NEW EQUIPMENT. Lessor will purchase new Equipment which is
specifically approved by Lessor.
(ii) SALE-LEASEBACK EQUIPMENT. Any in-place Equipment installed at
Lessee's site and to which Lessee has clear title and ownership may
be considered by Lessor for inclusion under this Lease (the
"Sale-Leaseback Transaction"). Any request for a Sale-Leaseback
Transaction must be submitted to Lessor in writing (along with
accompanying evidence of Lessee's Equipment ownership satisfactory
to Lessor for all Equipment submitted) no later than April 1, 1996*.
Lessor will not perform a Sale-Leaseback Transaction for any request
or accompanying Equipment ownership documents which arrive after the
date marked above by an asterisk (*). Further, any sale-leaseback
Equipment will be placed on lease subject to: (1) Lessor prior
approval of the Equipment; and (2) if approved, at Lessor's actual
net appraised Equipment value.
(iii) USED EQUIPMENT. Lessor will purchase "used" Equipment which is
obtained from a third party by Lessee for its use subject to: (1)
Lessor's prior approval of the Equipment; and (2) at Lessor's
appraised value for such used Equipment.
3. COMMENCEMENT DATE
The Commencement Date for each item of Equipment will be its Installation
Date. Lessee agrees to confirm the Commencement Date by providing Lessor with
Invoices containing the Equipment location, description, serial number and cost,
the Installation Date and Lessees signature. Lessor will summarize all Invoices
and/or IAFs received in the same calendar month provided however that each
Commencement Certificate must cover equipment with an equipment cost of at least
$10,000 or Lessor shall include such equipment on the Commencement Certificate
for the next succeeding month into a Commencement Certificate in the form
attached to this Schedule as Exhibit 1 and the Initial Term will begin the first
day of the calendar month thereafter. Each Commencement Certificate will
incorporate the terms and conditions of the Master Lease and this Schedule and
will constitute a separate Schedule. Notwithstanding the foregoing, if the
Equipment pertains to Sale-Leaseback Equipment the Commencement Date will be the
date Lessor tenders the purchase price.
4. OPTION TO EXTEND
So long as no Event of Default shall have occurred and be continuing,
Lessee will have the right to extend the Initial Term of this Schedule for a
period of one (1) year by giving Lessor at least ninety days (90) days written
notice prior to the expiration of the Initial Term. In such event, the rent to
be paid during said extended period shall be mutually agreed upon and if the
parties cannot mutually agree, then the Lease shall continue in full force and
effect pursuant to the existing terms and conditions until terminated in
accordance with its terms. This Schedule will continue in effect following said
extended period until terminated by either party upon not less than ninety (90)
days prior written notice, which notice shall be effective as of the Rent
Interval next following receipt.
5. PHASE II FINANCING
SO LONG AS NO EVENT OF DEFAULT SHALL HAVE OCCURRED OR IS CONTINUING, AND
SUBJECT TO FINAL REVIEW BY LESSOR, LESSOR AGREES TO PROVIDE TO LESSEE AN
ADDITIONAL $875,000 OF EQUIPMENT FINANCING UPON WRITTEN REQUEST OF LESSEE.
LESSEE WILL DELIVER TO LESSOR A WARRANT AGREEMENT IN FORM AND SUBSTANCE
SATISFACTORY TO LESSOR, WHEREBY LESSEE SHALL XXXXX XXXXXX THE RIGHT TO PURCHASE
THAT NUMBER OF SHARES OF SERIES C PREFERRED STOCK EQUAL TO 7% OF $875,000
DIVIDED BY $0.62.
28
6. MISCELLANEOUS
In consideration of Lessor financing leasehold improvements hereunder,
Lessee hereby agrees in addition to its last Monthly Rent payment to remit to
Lessor an amount equal to 12% of Lesser's cost of Leasehold improvements
provided hereunder.
7. ENVIRONMENTAL CONDITION
a. Indemnification. Lessee shall fully and promptly pay, perform,
discharge, defend, indemnify and hold harmless Lessor and its Affiliates
(defined below) , successors and assigns, directors, officers, employees
and agents from and against any Environmental Claim or Environmental Loss
(defined below).
b. Lessee Cooperation. In the event of an Environmental Claim, Lessee
shall, upon request, immediately provide Lessor with copies of all
correspondence reports, notices, orders, findings, declarations and other
materials pertinent to the Lessee's compliance with and requirements of
any Environmental Law (defined below).
c. Lessee Insurance. If Lessee is required by law to obtain an
environmental liability policy, the Lessee shall name Lessor as an
additional insured on its environmental liability insurance policy.
d. Adverse Environmental Condition - means (i) the existence or the
continuation of the existence, of an Environmental Emission (including,
without limitation, a sudden or non-sudden accidental or non- accidental
Environmental Emission), of or exposure to, any substance, chemical,
material, pollutant, contaminant, odor or audible noise or other release
or emission in, into or onto the environment (including without
limitation, the air, ground, water or any surface) at, in, by, from or
related to any Equipment, (ii) the environmental aspect of the
transportation, storage, treatment or disposal of materials in connection
with the operation of any Equipment, or (iii) the violation, or alleged
violation of any statutes, ordinances, orders, rules, regulations, permits
or licenses of, by or from any governmental authority, agency or court
relating to environmental matters connected with any Equipment.
e. Affiliate - means any entity that is directly or indirectly, through
one or more intermediaries, controls or is controlled by, or is under
common control with Lessor.
f. Environmental Claim - means any accusation, allegation, notice of
violation, claim, demand, abatement or other order or direction
(conditional or otherwise) by an governmental authority or any Person for
personal injury (including sickness, disease, or death), tangible or
intangible property damage, damage to the environment or natural
resources, nuisance, pollution, contamination or other adverse effects on
the environment, or for fines, penalties or restrictions, resulting from
or based upon any Adverse Environmental Condition (defined above).
g. Environmental Emission - means any actual or threatened release,
spill, omission, leaking, pumping, injection, deposition, disposal,
discharge, dispersal, leaching or migration into the indoor or outdoor
environment, or into or out of any of the Equipment, including, without
limitation, the movement of any Contaminant or other substance through or
in the air, soil, surface water, groundwater or property.
h. Environmental Law - means 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 Federal Water Pollution Control Act (33 U.S.C. 1251, et seq.),
the Resource Conservation and Recovery Act (42 U.S.C. 6901 et seq.), the
Clean Air Act (42 U.S.C. 7401 et seq.), the Toxic Substances Control Act
(15 U.S.C. 2601 et seq.), the Federal Insecticide, Fungicide, and
Rodenticide Act (7 U.S.C. 1361 et seq.), and the Occupational Safety and
Health Act (10 U.S.C. 651 et seq.), as these laws have been amended or
supplemented, and any analogous foreign, state or local statutes, and the
regulations promulgated pursuant thereto.
29
i. Environmental Loss - means 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.
j. Person - means any individual, partnership, corporation, trust,
unincorporated organization, government or department or agency thereof
and any other entity.
8. SPECIAL TERMS
The terms and conditions of the Master Lease Agreement as they pertain to this
Schedule are hereby modified and amended as follows:
A. Section 5.2, "Relocation or Sublease".
In the first line insert "Lessor's" before "prior written consent" and
insert "which shall not be unreasonably withheld" before "Lessee may
relocate Equipment".
B. Section 5.3, "Assignment by Lessor".
In paragraph A line 3 after "so long as" insert "there has not been an
Event of Default,".
C. Section 6.2, "Taxes and Fees".
Delete the parenthetical phrase in the second line of the paragraph.
D. Section 8, "Representations and Warranties of Lessee".
Paragraph (d) insert at the beginning of the sentence "To Lessee's
knowledge,".
Paragraph (f) add to the end of the paragraph ", the infringement or
conflict of which would have a material adverse effect on the Lessee."
E. Section 9, "Delivery and Return of Equipment".
Delete from "Upon termination" through the end of the paragraph.
F. Section 12, "Risk of Loss".
First paragraph, third sentence after the words "as loss payee" insert the
following "up to the then current casualty value". In the second paragraph
add the following to the end of the paragraph "If Lessor agrees to accept
like equipment as replacement for the loss or destruction of the
equipment, Lessee will not be obligated to replace the Equipment for a
cost greater than the Casualty Value, and Lessee shall be entitled to
retain all of the insurance proceeds received to reimburse Lessee for its
cost to replace the Equipment."
G. Section 13.1, "Default".
Paragraph (a) insert the word "business" before the word "days"; insert
"Lessee's receipt of" before "written notice"; add to the end of the
sentence "of such non-payment".
Paragraph (b) in the first line insert "material" before the word "term".
In the last line, insert "Lessee's receipt of" before "written notice".
30
Paragraph (c) after the phrase "failure by Lessee to pay its debts when
due" insert "where such past due amounts exceed $50,000 in the aggregate
or any lender has the right to accelerate more than $50,000 of debt", in
the third line after the words "bankruptcy or insolvency law" insert "if
such is not removed within sixty days (60)."
H. Section 14.3, "Obligations to Lease Additional Equipment".
In the first line insert "written" before the word "notice". In line 3
clause (i) after "master lease or any schedule" insert "and such default
is not cured within five (5) days of written notice".
Add to the end of the paragraph: "If Lessor's obligations to lease
additional Equipment are suspended hereunder, Lessee may request a
restoration of such leaseline upon demonstration to Lessor to Lessor's
satisfaction that Lessee has cured the defect which gave rise to the
suspension of Lessor's lease obligation."
I. Section 14.4 "Merger and Sale Provisions".
The second sentence of Section 14.4 of the Master Lease shall be deleted
in its entirety and replaced with the following; "Lessor shall have the
right to consent to the assignment of the Master Lease and all relevant
Schedules to the successor entity, which consent shall not be unreasonably
withheld. If such consent is reasonably withheld, then Lessor shall have
the option to terminate the Master Lease and all relevant Schedules."
J. Section 14.7, "Binding Nature".
Add the end of the paragraph "without the prior written consent of Lessor
which shall not be unreasonably withheld."
K. Section 14.8, "Survival of Obligations".
In the last line, "execution, delivery" shall be revised to read
"execution and delivery", delete "expiration or termination". Add to the
end of the section: "Sections 7.1, 9, and 11, shall survive expiration or
termination of this Master Lease until all duties thereunder have been
discharged by the parties."
L. Section 14.9, "Notices".
In the last line delete the word "receiving" and replace with the word
"disclosing" before the word "party".
M. Section 14.10, "Applicable Law".
Delete "Illinois" and replace with "California" wherever it appears.
N. Section 14.17, "Landlord/Mortgagee Waiver".
After "Lessee agrees to" insert "use reasonable efforts, (which shall not
include additional monetary payment to Landlord other than deminimis
amounts), to" before "provide Lessor with".
O. Section 14.19, "Definitions".
P. Delete Interim Rent definition and replace with:
"Interim Rent - means a daily rate of .0278% of Lessor's Cost for each day
from the Commencement Date through but not including the first day of the
first full Rent Interval included in the Initial Term."
31
MASTER LEASE: This Schedule is issued pursuant to the Master Lease identified on
page 1 of this Schedule. All of the terms and conditions of the Master Lease are
incorporated in and made a part of this Schedule as if they were expressly set
forth in this Schedule. The parties hereby reaffirm all of the terms and
conditions of the Master Lease (including, without limitation, the
representations and warranties set forth in Section 8) except as modified herein
by this Schedule. This Schedule may not be amended or rescinded except by a
writing signed by both parties.
COMBICHEM, INC. COMDISCO, INC.
as Lessee as Lessor
By: /s/ Illegible By: /s/ Xxxxx X. Xxxx
--------------------------- ------------------------------
Title: President & CEO Title: President, Venture Lease Division
------------------------ ---------------------------
Date: 4-25-96 Date:
------------------------ ----------------------------
32
18 SLXXXXX-XX
EXHIBIT 1
SUMMARY EQUIPMENT SCHEDULE
This Summary Equipment Schedule dated XXXX is executed pursuant to
Equipment Schedule No. X to the Master Lease Agreement dated XXXX between
Comdisco, Inc. ("Lessor") and XXXX ("Lessee"). All of the terms, conditions,
representations and warranties of the Master Lease Agreement and Equipment
Schedule No. X are incorporated herein and made a part hereof, and this Summary
Equipment Schedule constitutes a Schedule for the Equipment on the attached
invoices.
1. For Period Beginning: And Ending:
2. Initial Term Starts on: Initial Term:
(Number of Rent Intervals)
3. Total Summary Equipment Cost:
4. Lease Rate Factor:
5. Rent:
6. Acceptance Doc Type:
