Exhibit 10.61
MASTER LEASE AGREEMENT FOR EQUIPMENT
THIS AGREEMENT dated February 23, 2000, between SALEM CAPITAL CORPORATION,
having its principal place of business at 000 Xxxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxxxxxxx 00000-0000, Xxxxxx Xxxxxx of America (hereinafter referred to as
the "Lessor") and SELFCARE, INC. having its principal place of business at 000
Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000, Xxxxxx Xxxxxx of America, and
INVERNESS MEDICAL LIMITED, having its principal place of business at Xxxxxxxxx
Xxxx Xxxxx, Xxxxxxxxx, XX0 0XX, Xxxxxxxx, Xxxxxx Xxxxxxx (hereinafter
collectively referred to as the "Lessee").
Lessor agrees to lease to Lessee, and Lessee agrees to lease from Lessor the
machines and features (the "Equipment") described in the Equipment Schedules now
or hereafter executed and attached from time to time by Lessor and Lessee
covering such items of Equipment as are delivered to and accepted by Lessee on
or prior to the Final Delivery Date for each item of Equipment. Each Equipment
Schedule, with Attached Certificate of Acceptance and such other attachments as
are referred to in the Equipment Schedule shall constitute a separate Lease
incorporating all the terms and conditions of this Agreement.
The terms "Date of Certificate of Acceptance", "Daily Lease Rate Factor", "Basic
Lease Rate Factor", "Overdue Rate", "Interim Rent Date", "First Basic Rent
Date", "Last Basic Rent Date", "Expiration Date", "Casualty Value", and
"Lessor's Cost" shall have the meaning set forth in the relevant Equipment
Schedule.
SECTION 1. TERM OF LEASE
Upon delivery of the Equipment, Lessee shall inspect such Equipment and, if it
is found to be in good order, execute and deliver to Lessor a Certificate of
Acceptance in the form attached to the Equipment Schedule. All items of
Equipment listed on such Certificate of Acceptance shall be deemed accepted by
Lessee and shall be deemed to conform to this Agreement despite any defect. The
Lease term shall commence on the date of Lessee's execution of such Certificate
of Acceptance. The Lease term shall end on the Expiration Date unless otherwise
terminated or extended pursuant to the provisions of this Agreement.
SECTION 2. RENTAL CHARGES AND OTHER REQUIRED PAYMENTS
a) Lessee shall pay to Lessor as Basic Rent ("Basic Rent") for each item of
Equipment, the following:
i) On the Interim Rent Date, an amount equal to the Daily Lease Rate
Factor multiplied by the Lessor's Cost of each item of equipment for
each day from and including the date of the Certificate of Acceptance
to and including the day immediately preceding the Interim Rent Date;
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ii) On the First Basic Rent Date, and on each Basic Rent Date thereafter, to
and including the Last Basic Rent Date, an amount equal to the Basic Lease Rate
Factor multiplied by the Lessor's Cost of each item of equipment.
b) Lessee shall pay the following amounts (herein referred to as "Supplemental
Rent" and, together with Basic Rent, as "Rent"):
i) On or before the applicable due date, all taxes, however designated,
which are levied or imposed by any governmental authority upon the
Equipment or its sale, purchase, ownership or use, or upon Rent on
this Agreement, including but not limited to sales or use taxes,
personal property taxes, privilege or excise taxes, franchise taxes ad
valorem or value-added taxes, leasing taxes, and stamp taxes, together
with any penalties, fines or interest thereon, excluding, however,
income taxes measured solely by the net income of Lessor. To the
extent permitted by applicable law, Lessee shall prepare (in such
manner as will show Lessor's ownership of the Equipment) and timely
file all tax returns required in connection with taxes payable by
Lessee hereunder. With respect to any such tax return required to be
filed by Lessor, Lessee shall notify Lessor of such requirement and
furnish Lessor with all forms and information necessary for proper and
timely filing of such returns. Lessee shall inform Lessor as to any
governmental jurisdiction imposing personal property taxes on the
Equipment, and as to the amount of such taxes.
ii) On or before the date required by the terms hereof (or upon Lessor's
demand if no such date is specified herein), any other amount which
the Lessee is obligated to pay hereunder, including but not limited to
indemnity payments and payments of Casualty Value.
c) On any payment of Basic Rent, Supplemental Rent, Other Required Payment and
Casualty Value Payment, which is not paid on its due date, Lessee shall pay
to Lessor late charges computed from such payments due date until paid, at
the overdue Rate (computed on the basis of a 360-day year).
SECTION 3. NET LEASE
This Lease is a net lease and Lessee's obligation to pay all Rent shall be
absolute and unconditional and, except as expressly provided herein, shall not
be subject to any abatement, reduction, defense, counterclaim, set-off, or
recoupment, including any present or future claim against Lessor or the
manufacturer of the Equipment. Except as expressly provided herein, this Lease
shall not terminate for any reason, including any defect in the Equipment or
Lessor's title thereto or any destruction or loss of use of any item of
Equipment.
SECTION 4. OWNERSHIP OF EQUIPMENT
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The Equipment shall at all times remain the property of Lessor and may be
removed by Lessor at any time after termination of this Agreement.
Lessee shall affix tags, decals or plates to the Equipment indicating Lessor's
ownership, which type of tag, decal or plate and location may be specified by
Lessor, and Lessee shall not permit their removal or concealment. Lessee shall
cause each item of Equipment to be kept numbered with the serial number
specified in the Equipment Schedule. Lessee shall provide to Lessor any document
(including UCC financing statements and landlord or mortgagee waivers)
reasonably requested by Lessor for the purpose of evidencing or protecting
Lessor's title and interest in the Equipment. Lessee shall, at its own expense,
protect and defend Lessor's title in the Equipment against all claims and liens
of Lessee's creditors and keep the Equipment free and clear of all claims, liens
and encumbrances except those resulting from the agreements or acts of Lessor
and not resulting from Lessee's failure to perform its obligations under this
Agreement.
SECTION 5. POSSESSION
Lessor warrants to Lessee that Lessee shall be entitled, as against all persons
claiming by, through or under Lessor, to possess the Equipment subject to the
terms of this Agreement so long as Lessee is not in default hereunder.
Upon expiration or termination of this Lease, Lessee at its sole cost and
expense shall return the Equipment to Lessor at a place within 1,500 miles of
Inverness, Scotland, designated by Lessor and in as good condition as when
delivered to Lessee, reasonable wear and tear excepted, subject to the terms of
this Agreement. At the time of such return, Lessee shall at its own expense
effect such repairs including any necessary engineering changes as are required
for the Equipment to remain qualified for manufacturer's contract maintenance at
then standard rates.
SECTION 6. MAINTENANCE
a) Lessee, when possible, shall enter into and maintain in force a
manufacturer's maintenance agreement covering maintenance of the Equipment.
Such maintenance agreement shall commence upon expiration of the
manufacturer's free maintenance period, if any. Lessee shall furnish Lessor
with a copy of such maintenance agreement upon demand. Lessee will cause
the manufacturer to keep the Equipment in good working order in accordance
with the terms of the maintenance agreement and to make all necessary
adjustments and repairs to the Equipment, and the manufacturer is hereby
authorized to accept the directions of Lessee with respect to the
Equipment. Lessee agrees to allow the manufacturer full and free access to
the Equipment. Lessee covenants that the Equipment will at all times be
used and operated in accordance with
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manufacturer instructions and in compliance with any restriction contained
in manufacturer warranties regarding the Equipment.
b) All maintenance and service charges related to the Equipment shall be borne
by Lessee.
c) The required suitable electric current to operate the Equipment and a
suitable place of installation shall be furnished by Lessee. The
installation facilities shall be as specified in the manufacturer's
installation manual and shall at all times meet the minimum standard as
established in the jurisdiction where the Equipment will be located. Lessee
shall furnish all supplies consumed or required by the Equipment.
SECTION 7. LOCATION AND USE OF EQUIPMENT
a) During the term of the lease, the Equipment shall be located at the address
indicted in the Certificate of Acceptance. No Equipment shall be removed
from the above address without the prior written consent of Lessor. Any
relocation of the Equipment shall be at the risk and the expense of the
Lessee and in accordance with the Manufacturer's specifications.
b) Lessee covenants and warrants that during the period that any Equipment is
leased to Lessee hereunder, such Equipment will at all times be used and
operated in compliance with the laws of the jurisdictions in which it is
located, and in compliance with all acts, rules, regulations, and orders of
any commission, board or other legislative, administrative, or judicial
body or officer having power to regulate or supervise the use or operation
of the Equipment. Lessee shall not install or use the Equipment in such
manner or in such circumstances that any part of the Equipment is deemed to
be an accession to other personal property or deemed to be real property or
a fixture thereon.
SECTION 8. INSURANCE
During the period that any Equipment is leased to Lessee hereunder, Lessee will
at all times and at its expense carry and maintain or cause to be carried and
maintained insurance for loss of or damage to the Equipment caused by fire,
lightning, sprinkler breakage, tornado and windstorms, explosion, smoke and
smudge, aircraft and motor vehicle damage, strikes, riots and civil commotion,
burglary and theft, vandalism and malicious mischief, and other casualty events
customarily insured against with respect to similar equipment, in an amount not
less than the Casualty Value of the Equipment. Lessee shall also carry and
maintain or cause to be carried and maintained at its expense public liability
insurance covering the Equipment, in such amounts and against such risks as is
customary with respect to similar equipment. Lessee shall furnish appropriate
evidence of such insurance to Lessor naming Lessor as an additional insured and
naming Lessor's Assignee as loss payee. All required insurance shall provide for
ten (10) days' notice to Lessor and its assign of any cancellations
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and shall not modify nor alter said insurance without prior written consent of
Lessor and its Assignee.
SECTION 9. RISK OF LOSS, EVENT OF LOSS
Lessee hereby assumes and shall bear the entire risk of loss or damage including
but not limited to destruction, theft, or governmental taking of any item of
Equipment ("Event of Loss"), whether partial or complete and whether or not
covered by insurance. No such loss or damage shall relieve Lessee of any of its
obligations under this Lease. Lessee shall immediately notify Lessor of any
Event of Loss involving the Equipment.
If an Event of Loss occurs with respect to any item of Equipment, Lessee, at the
option of Lessor, shall:
a) repair or restore the equipment to good repair, condition and working
order; or
b) replace the Equipment with identical equipment in good repair, condition
and working order; or
c) pay Lessor in cash the Casualty Value for such item as set forth in the
relevant Equipment Schedule.
Upon payment of the Casualty Value and all other amounts due hereunder with
respect to such, this Lease shall terminate with respect to the item of
Equipment for which Lessor has received payment, and Lessee shall become
entitled to such item of equipment AS-IS, WHERE-IS, without any warranty,
express or implied, with respect to any matter whatsoever. If Lessee has paid
the Casualty Value and such other amounts with respect to such item of Equipment
and if Lessee is not in default hereunder, property damage insurance proceeds
from such Event of Loss shall be paid to Lessee up to the amount of said
Casualty Value.
SECTION 10. ENFORCEMENT OF WARRANTY
a) Upon receipt of written request from Lessee, and so long as this Agreement
shall remain in force, Lessor shall take all reasonable action requested by
Lessee to enforce any manufacturer's warranty, express or implied, issued
on or applicable to the Equipment, which is enforceable by Lessor in its
own name, provided, however, that Lessor shall not be obligated to resort
to litigation to enforce any such warranty unless Lessee shall pay all
expenses in connection therewith.
b) Similarly, if any such warranty shall be enforceable by Lessee in its own
name, Lessee hereby agrees, upon receipt of written request from Lessor and
so long as this Agreement
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shall remain in force, to take all reasonable action requested by Lessor to
enforce any such warranty.
c) Lessor hereby assigns to Lessee any warranty rights which Lessor may have
against the manufacturer with respect to the Equipment, to the extent such
warranty rights are assignable, which assignment shall remain effective so
long as Lessee is not in default hereunder. With respect to such warranty
rights as are not assignable, Lessor hereby appoints Lessee as its agent
and attorney-in-fact for purpose of enforcing such warranty rights at
Lessee's expense.
SECTION 11. DISCLAIMER OF WARRANTIES
LESSOR LEASES THE EQUIPMENT AS-IS, WHERE-IS, IN WHATEVER CONDITION IT MAY BE,
WITHOUT ANY AGREEMENT, WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED. WITHOUT
LIMITING THE GENERALITY OF THE FOREGOING, LESSOR EXPRESSLY DISCLAIMS ANY IMPLIED
WARRANTY OF MERCHANTABILITY, FITNESS OR ADEQUACY FOR ANY PARTICULAR PURPOSE OR
USE, QUALITY, PRODUCTIVENESS OR CAPACITY. LESSOR HEREBY ASSIGNS TO LESSEE (TO
THE EXTENT TO WHICH THE SAME MAY BE ASSIGNABLE), ANY WARRANTY OF THE
MANUFACTURER RELATIVE TO THE EQUIPMENT.
SECTION 12. INDEMNIFICATION
Lessor and its successors and assigns shall not be liable to Lessee for, and
Lessee shall indemnify and hold Lessor and its successors and assigns harmless
with respect to any third party, from any liability (including liability for
negligence), claim, loss, damage or expense (including litigation expense) of
any kind or nature caused, directly or indirectly, by
i) the inadequacy of any Equipment for any purpose,
ii) any deficiency or defect in any Equipment,
iii) the use or performance of any Equipment,
iv) any interruption or loss of service, use or performance of any Equipment,
v) any patent, trademark, or copyright infringement relating to the
Equipment, or
vi) any loss of business of other consequential damage whether or not
resulting from any of the foregoing.
IN PARTICULAR, LESSOR AND ITS SUCCESSORS AND ASSIGNS SHALL NOT BE LIABLE FOR
INJURIES TO PERSONS OR DAMAGE TO THE EQUIPMENT
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OR OTHER PROPERTY UNDER ANY THEORY OF STRICT LIABILITY, AND LESSEE SHALL
INDEMNIFY AND SAVE LESSOR AND ITS SUCCESSORS AND ASSIGNS HARMLESS FROM ANY SUCH
LIABILITY AND ALL COSTS AND EXPENSES IN DEFENDING THE SAME.
All of Lessor's rights under this Section 12 shall survive the termination of
this Agreement, however, Lessee shall not be required to indemnify Lessor for
claims arising from events that occur after the Equipment has been redelivered
to Lessor.
SECTION 13. MODIFICATIONS OF EQUIPMENT
a) Provided the manufacturer permits changes, alterations, modifications or
attachment to the Equipment (hereinafter called "Equipment Change") and
consents to the Equipment Change in writing and such Equipment Change does
not adversely affect the operation of the Equipment in relation to its
normal use and purpose and a copy of the approval of the Equipment Change
is delivered to Lessor and its Assignee, the Lessee may, at its own
expense, make or cause to be made alterations or attachments to the
Equipment, so long as such alterations or attachments do not interfere with
the normal operation of the Equipment. Lessee, if Lessor so directs in
writing, shall remove any such alteration or attachment, and the Equipment
shall be restored to its original condition, reasonable wear and tear
accepted, upon termination of this Agreement. If an alteration or
attachment interferes with the normal and satisfactory operation or
maintenance of any part of the Equipment, Lessee shall, upon notice from
Lessor to that effect, promptly remove the alteration or attachment and
restore the Equipment to its normal condition.
b) If Lessee desires to add special features or model changes ("Additional
Special Features") to the Equipment subsequent to the commencement of this
Lease, Lessee shall either:
i) give Lessor an opportunity to obtain such Additional Special Features
at Lessor's expense and lease such Additional Special Features to
Lessee upon such terms and conditions as Lessor and Lessee agree to (it
being understood that the monthly rental for such Additional Special
Features must be sufficient to cover Lessor's related monthly debt
payments, that any such Additional Special Features obtained by Lessor
shall be deemed to be part of the Equipment, and that Lessee shall be
responsible for all related transportation and installation charges, to
the extent provided in Section 14); or
ii) upon Lessor's prior written consent (which consent will not be
unreasonably withheld), purchase and install such Additional Special
Features at Lessee's own expense with no rent due Lessor for such
Additional Special Features, but such Additional Special Features shall
be subject to the provisions of this Section 13, as if they were
alterations or attachments. Upon termination of this Agreement, Lessor
may direct in writing that Lessee remove such Additional Special
Features.
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c) All alterations, attachments and Additional Special Features shall become
the property of Lessor.
SECTION 14. TRANSPORTATION EXPENSES
All transportation and installation expenses incurred in connection with
delivery of the Equipment to Lessee are to be paid by Lessee. Necessary packing
cases for the return of the Equipment, and such labor as may be necessary for
pacing and unpacking the Equipment when in the possession of Lessee, shall be
furnished by Lessee at its expenses. Lessee shall pay transportation expenses
incurred in connection with redelivery to Lessor.
SECTION 15. INSPECTION AND REPORTS
a) Upon request, Lessee shall permit Lessor or persons designated by Lessor to
inspect the Equipment.
b) Lessee shall immediately notify Lessor of any accident arising out of the
alleged or apparent improper manufacturing, functioning or operation of the
Equipment, the time, place and nature of the accident and damage, the names
and addresses of parties involved persons injured, witnesses and owners of
property damaged, and such other relevant information as may be known, and
shall promptly advise Lessor of all correspondence, papers, notices and
documents received by Lessee in connection with any claim or demand related
to improper manufacturing, functioning or operation of the Equipment or
charging Lessor with liability, and shall aid in the investigation and
defense of all such claims and shall aid in the recovery of damages from
third persons.
c) Lessee will furnish to Lessor and any assignee of Lessor
i) within one hundred twenty (120) days after the end of each of Lessee's
fiscal years, the annual financial statement of Lessee, including a
balance sheet and an income and retained earnings statement for the
fiscal year covered thereby, setting forth in comparative form, the
figures for the previous fiscal year, all in reasonable detail and duly
certified by Lessee's independent certified public accountant,
ii) copies of such financial statements and reports as Lessee shall send to
its stockholders or file with the Securities and Exchange Commission or
any governmental agency substituted therefor, and
iii) such other information respecting the financial condition and affairs
of Lessee as may be necessary to determine compliance with the terms
and conditions of this Lease.
SECTION 16. EVENTS OF DEFAULT AND LESSOR'S REMEDIES
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a) Should:
i) Lessee fail to pay any Basic Rent or other amount due under this
Agreement within ten (10) days of the applicable due date;
ii) Lessee attempt to remove, sell, transfer, encumber, part with
possession of, assign or sublet (except as expressly permitted by the
provisions hereof) the Equipment or any part thereof;
iii) any representation or warranty made by Lessee in this Agreement or in
any document or certificate furnished to Lessor in connection herewith
prove to have been incorrect in any material respect when made;
iv) Lessee fail in the performance of any other of its obligations under
this Agreement for a continuous period of thirty (30) days after
receipt by Lessee of written notice thereof from Lessor;
v) Lessee cease doing business as a going concern;
vi) a petition be filed by or against Lessee under the Federal Bankruptcy
Act or any amendment thereto (including a petition for reorganization
or arrangement) which shall not have been discharged within sixty (60)
days after such filing;
vii) a receiver be appointed for Lessor or its property;
viii) Lessee commit an act of bankruptcy, become insolvent, make an
assignment for the benefit of creditors, or offer a composition of any
of its indebtedness;
ix) the issuance of any writ or order of attachment or execution or other
legal process against any Equipment which is not discharged or
satisfied with fifteen (15) days; or
x) to the extent that Lessee is a corporation, if a controlling interest
of the stock of Lessee is transferred (whether in increments or on one
occasion) to persons or other legal entities other than those holding
said controlling interest at the date of execution of this Agreement,
then in any such event (herein referred to as an "Event of Default"),
Lessor may, at its option, exercise any one or more of the remedies set
forth in subsection (b) of this Section 16 (in addition to any other remedy
Lessor may have under applicable law). Failure of Lessee to pay or perform
any obligation under any Agreement with Lessor shall constitute a default
as to all Agreements between Lessor and Lessee.
b) Upon the occurrence or continuation of any Event of Default as specified in
subsection (a) of this Section 16, Lessor may:
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i) declare immediately due and payable by Lessee, as liquidated damages
for loss of a bargain, an amount equal to the Casualty Value of the
Equipment at the date of the occurrence of any event of default,
ii) terminate this Agreement;
iii) take possession of the Equipment during Lessee's normal working hours
without demand or notice, wherever the Equipment may be located,
without court order or other process of law (Lessee hereby waiving any
right it may have to notice and hearing before repossession). Lessee
hereby waives any and all damages occasioned by such taking of
possession. Any taking of possession pursuant to this subsection 16(b)
shall not in itself constitute termination of this Agreement and shall
not, in any event, relieve Lessee of its obligations hereunder.
Lessee shall reimburse Lessor for all reasonable expenses (including attorney's
fees) incurred by Lessor in enforcing its rights under this Section 16. Any
overdue rent, and any unpaid Casualty Value payable as liquidated damages
pursuant to clause (i) of this subsection 16(b), shall bear interest at the
Overdue Rate until paid in full. Upon taking possession of the Equipment, Lessor
may, at its option and without notice to Lessee lease the repossessed Equipment
to any third party on such terms and conditions as Lessor may determine, or sell
said Equipment at public auction or at private sale.
In the event that Lessor leases or sells repossessed Equipment, the Net Proceeds
(as defined below) shall first be credited to amounts due and owing by Lessee,
and shall then be used to reimburse Lessee for any liquidated damage payment
made by Lessee pursuant to clause (i) of this subsection 16(b). Lessor shall
retain any surplus. Lessee shall remain liable for an amount equal to the
Casualty Value of the Equipment at the date of an occurrence of an Event of
Default less the Net Proceeds. As used in this subsection 16(b), "Net Proceeds"
shall mean the cash sale price of the Equipment, or the aggregate rent payable
pursuant to a lease of the Equipment discounted at the rate of twelve (12%)
percent less all costs and expenses (including reasonable attorneys' fees and
disbursements) incurred by Lessor as a result of Lessee's default and Lessor's
exercise of its remedies with respect thereto. Lessor's rights and remedies in
respect of any of the terms and conditions of this Lease shall be cumulative and
non-exclusive and shall be in addition to any and all other rights and remedies
which may be provided by law.
Lessee acknowledges and agrees, for itself and for all successors and assigns
including any bankruptcy trustees of Lessee (hereinafter collectively referred
to as the "Benefited Parties"), knowingly, voluntarily and intentionally
stipulate and agree, to the fullest extent allowed by law and with the full
intention that such stipulation and agreement shall survive the filing of any
bankruptcy, that, in the event any of the Benefited Parties become a debtor or
debtor in possession in a case under the United States Bankruptcy Code (11
U.S.C. ss.101 et seq.), then pursuant to 11 U.S.C. ss.362(d)(1) and (2) Lessor
shall be entitled to the immediate termination oF the automatic stay to permit
Lessor to exercise all of Lessor's legal rights and remedies against Lessee
under the lease, including, without limitation, the right to repossess the
leased equipment and to setoff and apply to any amounts owed by Lessee to Lessor
any
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security deposit or other sums delivered to Lessor by Lessee from time to time
as security for the Lessee's performance under the lease.
SECTION 17. SUBLEASES AND ASSIGNMENTS
a) Lessee may sublet the Equipment if Lessee notifies Lessor of the proposed
new location of the Equipment and receives Lessor's prior written consent.
No such sublease shall in any way discharge or diminish any of Lessee's
obligations under this Agreement. Each sublease shall be approved in form
and content by Lessor (including, without limitation, any provisions
granting such sub-lessee an option to terminate such sublease) and shall
expressly provide that it is subject and subordinate to this Lease. No
amendment or modification of any of the terms and conditions of such
sublease shall be made without the prior written consent of Lessor.
b) This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and (to the extent specified
in any assignment) assigns. Lessee shall not assign this Agreement without
the prior written consent of Lessor. Lessor may assign any or all of its
rights under this Agreement, and Lessee agrees to acknowledge in writing
any such assignment within five (5) days after receipt of written notice
thereof.
c) So long as Lessor's rights hereunder are assigned to any Assignee, Lessee
may not assert against any such Assignee any defense, counterclaim,
recoupment, or set-off Lessee may have against Lessor. Lessee agrees that
it will not seek to cancel or terminate this Agreement (except as expressly
permitted in this Agreement) or otherwise avoid its obligations hereunder
as against such Assignee, and further agrees that it will pay to such
Assignee all Rent Due hereunder and assigned to such Assignee, without
regard to any such defense, counterclaim, recoupment, or set-off, and will
not seek to recover any part of the same from such Assignee. However,
nothing herein shall be construed to prevent Lessee from exercising against
Lessor any claim for damages or injunctive relief that Lessee may have
against Lessor.
SECTION 18. LESSEE'S AND LESSOR'S WARRANTIES
a) Lessee hereby warrants and represents to Lessor, its successors and
assigns:
i) that Lessee's execution and performance of this Agreement have been
duly authorized by all necessary corporate action and are not in
conflict with Lessee's charter or by-laws, or with any indenture,
contract or agreement by which it is bound, or with any statue,
judgment, decree, rule or regulation binding upon it;
ii) that no consent or approval of any trustee or holder of any
indebtedness or obligation of Lessee, and no consent or approval of any
governmental authority, is necessary (or,
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if required, has been obtained) for Lessee's execution or performance of this
Agreement; and
iii) that this Agreement is valid and binding and enforceable against Lessee
in accordance with its terms, subject to enforcement limitations
imposed by rules of equity or by bankruptcy or similar laws.
Upon Lessor's request, Lessee shall submit to Lessor an opinion of Lessee's
counsel that the above warranties and representations are true.
b) Lessor hereby warrants and represents to Lessee, it successors and assigns:
i) that Lessor's execution and performance of this Agreement have been
duly authorized by all necessary corporate or partnership action and
are not in conflict with Lessor's charter and by-laws or partnership
agreement, or with any indenture, contract or agreement by which it is
bound, or with any statute, judgment, decree, rule or regulation
binding upon it;
ii) that no consent or approval of any trustee or holder of any
indebtedness or obligation of Lessor, and no consent or approval of any
governmental authority, is necessary for Lessor's execution or
performance of this Agreement;
iii) that this Agreement is valid and binding and enforceable against Lessor
in accordance with its terms, subject to enforcement limitations
imposed by rules of equity or by bankruptcy or similar laws; and
iv) Lessor is the owner of the Equipment and said Equipment is free and
clear of all liens and encumbrances, except the lien of and security
interest granted by Lessor to its Assignee.
Upon Lessee's request, Lessor shall submit to Lessee an opinion of Lessor's
counsel that the above warranties and representations are true.
SECTION 19. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the laws of
and jurisdiction shall be in the Commonwealth of Massachusetts.
SECTION 20. AMENDMENTS
This Agreement constitutes the entire agreement between Lessor and Lessee with
respect to the Equipment and may be amended or modified only by a writing signed
by the parties hereto or their respective successors and assigns.
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SECTION 21. ADDRESS FOR COMMUNICATIONS
Any communication in connection with this Agreement shall be made in writing to
the address shown in the first paragraph of this Agreement, or to such other
address as has been most recently designated in writing by one party to the
other. Unless otherwise specified herein any notice or communication shall
become effective when deposited in the United States mail properly addressed
with proper postage for first-class mail prepaid.
SECTION 22. UNIFORM COMMERCIAL CODE DOCUMENTATION
Lessee agrees to execute such Uniform Commercial Code ("UCC") financing
statements and other documents deemed necessary by Lessor or its Assignees to
perfect and protect the interests of Lessor and its Assignees in the Lease and
the Equipment. With respect to each Lease, there shall be a single executed
original Equipment Schedule, which shall be marked "Original" and all other
counterparts shall be marked "Conformed Copy". To the extent that this Lease may
constitute chattel paper (as defined in the Uniform Commercial Code) no security
interest may be created through the possession of any counterpart of the
Equipment Schedule other than the Original.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed.
SALEM CAPITAL CORPORATION SELFCARE, INC.
(LESSOR) (LESSEE)
By /s/ XXXXX X. XXXXXXX By /s/ XXXXXXX X. XXXXXXX
------------------------------ ------------------------------
Print Name XXXXX X. XXXXXXX Print Name XXXXXXX X. XXXXXXX
------------------------------ ------------------------------
Title PRESIDENT Title CHIEF FINANCIAL OFFICER
------------------------------ ---------------------------
Date MARCH 8, 2000 Date MARCH 6, 2000
------------------------------ ---------------------------
INVERNESS MEDICAL LIMITED
(LESSEE)
By /s/ XXXXXX XXXXXXXX
------------------------------
Print Name XXXXXX XXXXXXXX
--------------------
Title DIRECTOR OF FINANCE
--------------------------
Date FEBRUARY 25, 2000
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EQUIPMENT SCHEDULE NO. 1
To Master Lease Agreement for Equipment
Dated February 23, 2000,
Between SALEM CAPITAL CORPORATION as "Lessor" and
SELFCARE, INC. and
INVERNESS MEDICAL LIMITED collectively as "Lessee"
This Equipment Schedule hereby incorporates by reference, as though set forth in
its entirety, the provisions of the Master Lease Agreement for Equipment, dated,
February 23, 2000, between SALEM CAPITAL CORPORATION ("Lessor") and SELFCARE,
INC. and INVERNESS MEDICAL LIMITED (collectively as "Lessee") (the "Agreement").
1. EQUIPMENT
EQUIPMENT LOCATION: Inverness Medical Limited
Xxxxxxxxx Xxxx Xxxxx
Xxxxxxxxx, XX0 0XX, Xxxxxxxx
a. EQUIPMENT VENDOR: Various manufacturers
QUANTITY DESCRIPTION COST
1 Lamination System $330,000
1 Web Steering Guide 25,000
1 Ink Dispenser 20,000
1 Modifications to Kinematics 10,000
1 Enzyme Print Line Printer 180,000
1 Inks Reagents Preparation 25,000
1 Inks Reagents Preparation 30,000
1 Vial Vision System 35,000
---------
LESSOR'S COST: $655,000
2. DEFINITIONS
o The BASIC RENT shall be $12,894.33
o The BASIC RENT DATE shall be the first day of each calendar month (to and
including the Last Basic Rent Date) or the first business day thereafter
when the first falls on a non-business day.
o FIRST BASIC RENT DATE: The first day of the month following acceptance of
the entire Equipment Schedule.
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o LAST BASIC RENT DATE: The first day of the 60th month following acceptance
of the entire Equipment Schedule.
o BASIC LEASE RATE FACTOR: 0.019686
o DAILY LEASE RATE FACTOR: 0.000656
o INTERIM RENT DATE: The first day of the first month following acceptance of
the Equipment.
o EXPIRATION DATE: The last day of the 60th month following acceptance of the
entire Equipment Schedule.
o OVERDUE RATE: Five (5%) Percent of Basic Rent Payment.
o The CASUALTY VALUE OF THE EQUIPMENT shall be the Lessor's Cost of each item
of Equipment suffering an Event of Loss, multiplied by the percentage set
out in Attachment A to this Equipment Schedule opposite the Basic Rent date
immediately preceding such Event of Loss.
3. PROVISIONS
The following attachments apply to this Equipment Schedule only:
o Attachment A Casualty Values
o Attachment B Certificate of Acceptance
o Attachment C Lessee's Option to Purchase or Renew
o Attachment D Additional Payment Terms
SALEM CAPITAL CORPORATION SELFCARE, INC.
(LESSOR) (LESSEE)
By /s/ XXXXX X. XXXXXXX By /s/ XXXXXXX X. XXXXXXX
----------------------------- -----------------------------
Print Name XXXXX X. XXXXXXX Print Name XXXXXXX X. XXXXXXX
--------------------- ---------------------
Title PRESIDENT Title CHIEF FINANCIAL OFFICER
-------------------------- --------------------------
Date MARCH 8, 2000 Date MARCH 6, 2000
--------------------------- ---------------------------
INVERNESS MEDICAL LIMITED
(LESSEE)
By /s/ XXXXXX XXXXXXXX
-----------------------------
Print Name XXXXXX XXXXXXXX
---------------------
Title DIRECTOR OF FINANCE
--------------------------
Date FEBRUARY 25, 2000
---------------------------
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ATTACHMENT A
To Master Lease Agreement for Equipment
Dated February 23, 2000,
Between SALEM CAPITAL CORPORATION as "Lessor" and
SELFCARE, INC. and
INVERNESS MEDICAL LIMITED collectively as "Lessee"
As it relates to Equipment Schedule No. 1
CASUALTY VALUES
Basic Applicable
RENT DATE PERCENTAGE
--------- ----------
On or before #:
1 106.50
2 105.50
3 104.50
4 103.50
5 102.50
6 101.50
7 100.50
8 99.50
9 98.50
10 97.50
11 96.50
12 95.50
13 94.50
14 93.50
15 92.50
16 91.50
17 90.50
18 89.50
19 88.50
20 87.50
21 86.50
22 85.50
23 84.50
24 83.50
25 82.50
26 81.50
27 80.50
28 79.50
29 78.50
30 77.50
31 76.50
32 75.50
33 74.50
34 73.50
35 72.50
36 71.50
37 70.50
38 69.50
39 68.50
40 67.50
41 66.50
42 65.50
43 64.50
44 63.50
45 62.50
46 61.50
47 60.50
48 59.50
49 58.50
50 57.50
51 56.50
52 55.50
53 54.50
54 53.50
55 52.50
56 52.00
57 52.50
58 51.50
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59 50.50
60 50.00
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SALEM CAPITAL CORPORATION SELFCARE, INC.
(LESSOR) (LESSEE)
By /s/ XXXXX X. XXXXXXX By /s/ XXXXXXX X. XXXXXXX
----------------------------- -----------------------------
Print Name XXXXX X. XXXXXXX Print Name XXXXXXX X. XXXXXXX
--------------------- ---------------------
Title PRESIDENT Title CHIEF FINANCIAL OFFICER
-------------------------- --------------------------
Date MARCH 8, 2000 Date MARCH 6, 2000
-------------------------- ---------------------------
INVERNESS MEDICAL LIMITED
(LESSEE)
By /s/ XXXXXX XXXXXXXX
-----------------------------
Print Name XXXXXX XXXXXXXX
---------------------
Title DIRECTOR OF FINANCE
--------------------------
Date FEBRUARY 25, 2000
---------------------------
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ATTACHMENT B
To Master Lease Agreement for Equipment
Dated February 23, 2000,
Between SALEM CAPITAL CORPORATION as "Lessor" and
SELFCARE, INC. and
INVERNESS MEDICAL LIMITED collectively as "Lessee"
As it relates to Equipment Schedule No. 1
CERTIFICATE OF ACCEPTANCE
CONDITION OF EQUIPMENT
The Lessee Certifies that all items of Equipment described below have been
delivered to the location indicated below, tested and inspected by the Lessee,
found to be in good order, and accepted as items of Equipment under the
Agreement, all on the date indicated.
EQUIPMENT
EQUIPMENT LOCATION: Inverness Medical Limited
Xxxxxxxxx Xxxx Xxxxx
Xxxxxxxxx, XX0 0XX, Xxxxxxxx
a. EQUIPMENT VENDOR: Various Manufacturers
QUANTITY DESCRIPTION SERIAL #
1 Lamination System
1 Web Steering Guide
1 Ink Dispenser
1 Modifications to Kinematics
1 Enzyme Print Line Printer
1 Inks Reagents Preparation
1 Inks Reagents Preparation
1 Vial Vision System
The Lessee hereby represents and warrants to Lessor that no Event of Default or
event which, with the giving of notice or the lapse of time, or both, would
become such an Event of Default under the Agreement has occurred, and is
continuing and there are in full force and effect, any insurance policies with
respect to the Equipment required to be obtained under terms of the Agreement.
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Page 19 of 23
SELFCARE, INC.
(LESSEE)
By______________________________________
Print Name______________________________
Title___________________________________
Date____________________________________
INVERNESS MEDICAL LIMITED
(LESSEE)
By______________________________________
Print Name______________________________
Title___________________________________
Date____________________________________
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Page 20 of 23
ATTACHMENT C
To Master Lease Agreement for Equipment
Dated February 23, 2000,
Between SALEM CAPITAL CORPORATION as "Lessor" and
SELFCARE, INC. and
INVERNESS MEDICAL LIMITED collectively as "Lessee"
As it relates to Equipment Schedule No. 1
LESSEE'S OPTION TO PURCHASE OR RENEW
Provided that this Lease Agreement has not been earlier terminated and Lessee is
not in material default hereunder, the following steps shall be taken in order
to make an informed judgment as to exercising one of the options set forth
below:
(a) At least one hundred eighty (180) days prior to the expiration of the then
current term of the lease (whether the original term or a renewal term),
Lessee shall notify Lessor in writing of Lessee's interest in continued use
of the Equipment beyond the current term of the Lease by leasing for a
renewal term of specified duration (which shall be at least one [1] year)
or by purchasing.
(b) At least one hundred fifty (150) days prior to the expiration of the then
current term, Lessor and Lessee shall consult together for the purpose of
determining the "Fair Rental Value" and the "Fair Market Value" of the
Equipment as of the end of such current term. The Fair Rental Value and the
Fair Market Value shall be determined on the basis of, and shall be equal
in amount to, the value which would be obtained in an arms-length
transaction between an informed and willing renter-user or buyer-user as
the case may be, under no compulsion to rent or sell, and in such
determinations, costs of removal from Lessee's premises shall not be a
deduction from such values. Fair Rental Value shall be determined on the
basis of a renewal term of the duration specified in Lessee's notice to
Lessor pursuant to subsection (a) above.
(c) If ninety (90) days prior to the expiration of the then current term Lessor
and Lessee have not agreed upon a determination of the Fair Rental Value
and the Fair Market Value of the Equipment, such undetermined values shall
be determined in accordance with the foregoing definition by a qualified
independent appraiser selected by Lessor. The appraiser so selected shall,
at the expense of Lessee, make such determination within a period of thirty
(30) days following appointment and shall promptly communicate such
determination in writing to Lessor and Lessee. The determination so made
shall be conclusively binding upon both Lessor and Lessee.
(d) Following determination of Fair Rental Value and Fair Market Value as
provided above, and provided that Lessee is not then in material default
under this Lease Agreement, Lessee shall have the right to elect one of the
following options as to the Equipment.
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(i) Purchase of Equipment at the end of the current term for a price
equal to the Fair Market Value by notifying Lessor in writing at
least thirty (30) days prior to the expiration of the current term
of Lessee's election to purchase, and by paying to Lessor the Fair
Market Value in cash on or prior to the expiration of said term;
(ii) Lease of the Equipment for a renewal term by notifying Lessor in
writing, at least thirty (30) days prior to the expiration of the
current term, of Lessee's election to extend the term of the Lease
Agreement for the renewal term specified in Lessee's notice to
Lessor pursuant to subsection (a) above, and by paying the Fair
Rental Value therefor payable monthly in advance.
(e) If Lessee shall not have elected either option under the foregoing
subsection (d), Lessee shall return the Equipment to Lessor at the end of
the current term of the Lease Agreement.
SALEM CAPITAL CORPORATION SELFCARE, INC.
(LESSOR) (LESSEE)
By /s/ XXXXX X. XXXXXXX By /s/ XXXXXXX X. XXXXXXX
----------------------------- -----------------------------
Print Name XXXXX X. XXXXXXX Print Name XXXXXXX X. XXXXXXX
--------------------- ---------------------
Title PRESIDENT Title CHIEF FINANCIAL OFFICER
----------- --------------------------
Date MARCH 8, 2000 Date MARCH 6, 2000
-------------------------- ---------------------------
INVERNESS MEDICAL LIMITED
(LESSEE)
By /s/ XXXXXX XXXXXXXX
-----------------------------
Print Name XXXXXX XXXXXXXX
---------------------
Title DIRECTOR OF FINANCE
---------------------------
Date FEBRUARY 25, 2000
---------------------------
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ATTACHMENT D
To Master Lease Agreement for Equipment
Dated February 23, 2000,
Between SALEM CAPITAL CORPORATION as "Lessor" and
SELFCARE, INC. and
INVERNESS MEDICAL LIMITED collectively as "Lessee"
As it relates to Equipment Schedule No. 1
ADDITIONAL PAYMENT TERMS
LESSEE HEREBY AGREES TO DIRECT ALL PAYMENTS BY LIFESCAN, INC. INTO A TRUST
ACCOUNT. ON THE FIRST DAY OF EACH MONTH, WHEN FUNDS ARE AVAILABLE, TRUSTEE SHALL
FIRST PAY TO LESSOR THOSE AMOUNTS DUE UNDER THE TERMS OF THE LEASE AND ANY
SCHEDULES ATTACHED. TRUSTEE SHALL THEN RELEASE THE REMAINING FUNDS TO LESSEE.
Should Lessee, through its Trustee, fail to make any payments to Lessor due
hereunder, then Lessor may direct Lessee to enforce the provisions of Section
3.8 of the Amended and Restated Sales Distribution Agreement for Testing System
for Glucose in Humans, between LifeScan, Inc. and Selfcare, Inc., dated June 7,
1999, and the Credit Support Letter from LifeScan, Inc., copies of which are
attached hereto, whereby LifeScan, Inc. agrees to make said payments directly to
Lessor consistent within the terms of said Section 3.8.
SALEM CAPITAL CORPORATION SELFCARE, INC.
(LESSOR) (LESSEE)
By /s/ XXXXX X. XXXXXXX By /s/ XXXXXXX X. XXXXXXX
---------------------------- ----------------------------
Print Name XXXXX X. XXXXXXX Print Name XXXXXXX X. XXXXXXX
-------------------- ----------------------------
Title PRESIDENT Title CHIEF FINANCIAL OFFICER
------------------------- -------------------------
Date MARCH 8, 2000 Date MARCH 6, 2000
------------------------- --------------------------
INVERNESS MEDICAL LIMITED
(LESSEE)
By /s/ XXXXXX XXXXXXXX
-----------------------------
Print Name XXXXXX XXXXXXXX
--------------------
Title DIRECTOR OF FINANCE
-------------------------
Date FEBRUARY 25, 2000
--------------------------
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Page 23 of 23
