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EXHIBIT 10.21
EQUIPMENT LOAN AGREEMENT
This Equipment Loan Agreement (the "Agreement"), effective as of August
1, 2000 (the "Effective Date"), is made by and between Third Wave Technologies,
Inc., a Wisconsin corporation, with a place of business at 000 X. Xxxx Xxxx,
Xxxxxxx, XX 00000 ("TWT"), and Applied Biosystems with a place of business at
000 Xxxxxxx Xxxxxx Xxxxx, Xxxxxx Xxxx, XX 00000 ("ABG"), a business group of PE
Corporation, a Delaware corporation. ABG is fully authorized to act herein on
behalf of PE Corporation.
NOW, THEREFORE, in consideration of the promises made herein and good and
valuable consideration the receipt of which is hereby acknowledged, the parties
agree as follows:
1. DEFINITIONS. Capitalized terms not otherwise defined herein shall have the
meaning as set forth in that Development and Supply Agreement to which this
Agreement is attached as Exhibit A ("Development and Supply Agreement").
2. EQUIPMENT. The parties have agreed to collaborate with respect the Nakamura
Project as set forth in the Development and Supply Agreement. In connection
therewith, ABG may from time to time transfer certain Equipment to TWT for its
use in connection with TWT's performance of activities for the Nakamura Project
including development and manufacture of certain Assay components. For purposes
of this Agreement, "Equipment" shall mean that equipment transferred to TWT and
set forth on Schedule 1 hereto, as may be amended and updated from time to time.
3. TITLE. All right, title and interest in and to the Equipment shall remain
with ABG.
4. USE. TWT shall use the Equipment at the Premises only for purposes of
conducting activities in connection with the Development Program, unless
otherwise agreed by ABG in writing. Without limiting the foregoing, TWT agrees
to use the Equipment in accordance with all applicable laws, regulations and
permits and solely for the applications for which it was intended. Additionally,
TWT further agrees to use the Equipment in accordance with reasonable guidelines
provided by ABG from time to time. For purposes of this Agreement, "Premises"
shall mean those facilities owned or leased by TWT.
5. ALTERATIONS. TWT shall not without ABG's written consent make any
alterations, additions or improvements to the Equipment; provided that ABG
hereby approves all such alterations, additions or improvements reasonably
necessary for TWT to carry out its activities in connection with the Nakamura
Project. All such alterations or improvements so approved shall become the
property of ABG.
6. DISCLAIMER OF WARRANTY. ABG does not warrant the performance of the Equipment
in any way. THE EQUIPMENT IS SUPPLIED "AS IS". ABG DISCLAIMS ANY IMPLIED
WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE FOR THE
INSTRUMENTATION OR ANY PORTION THEREOF FURNISHED HEREUNDER.
7. OTHER. TWT shall keep the Equipment free of all security interests, liens and
other encumbrances. TWT shall affix to and maintain on the Equipment, in a
conspicuous location, a notice stating that the Equipment is owned by ABG and
subject to loan. In addition, TWT shall maintain the Equipment in good
condition, and will exercise due and proper care in the use of the Equipment,
and will be responsible for any damage to the Equipment, excepting reasonable
wear and tear, and will insure the Equipment against, loss, theft and damage
under a policy naming ABG as an additional insured. TWT agrees to cooperate with
ABG, at ABG's expense and request, in the filing of any UCC financing statements
relating to the Equipment as ABG may deem necessary or useful. The Equipment
shall be depreciated in accordance with GAAP as practiced by ABG. Upon
expiration or termination of the Development and Supply Agreement, TWT shall
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have the option to purchase any or all of the Equipment at its then-current
depreciated value. In such case, TWT shall provide ABG written notice of such
election specifying the Equipment that TWT desires to so purchase and
referencing this Paragraph 7, upon which ABG will provide TWT with an accounting
of the then-current depreciated value of such Equipment. TWT shall then pay such
amount in four (4) equal installments, the first payable on the later of (i) 45
days after the expiration or termination of the Development and Supply Agreement
or (ii) 15 days after ABG's accounting, and each additional payment will be due
quarterly thereafter. With respect to any Equipment for which TWT elects not to
exercise its option, such Equipment shall be subject to disposition by ABG upon
30 days advance written notice to TWT. In such event, TWT shall deliver such
Equipment to ABG or its designee at the Premises where such Equipment is used
and ABG or its designee shall use reasonable efforts not to unreasonably disrupt
the ongoing activities of TWT at such Premises.
8. GENERAL. This Agreement and any dispute arising from the performance or
breach hereof shall be governed by and construed and enforced in accordance
with, the laws of the State of California, without reference to conflicts of
laws principles. This Agreement, along with the Development and Supply Agreement
sets forth the entire agreement between the parties with respect to the subject
matter herein and supersede all previous or contemporaneous understandings with
respect thereto, whether oral or written. This Agreement may only be amended or
any right or obligation waived with a written document signed by authorized
representatives of the party to be charged and expressly refers hereto. If any
provision hereof should be held invalid, illegal or unenforceable in any
jurisdiction, such provision shall be stricken and all other provisions hereof
shall remain in full force and effect in such jurisdiction and shall be
liberally construed in order to carry out the intentions of the parties hereto
as nearly as may be possible.
9. NOTICES. All notices, requests and other communications hereunder shall be in
writing and shall be personally delivered, sent by registered or certified mail,
return receipt requested, postage prepaid, or sent via facsimile, receipt
confirmed, in each case to the respective address specified below, or such other
address as may be specified in writing to the other parties hereto:
ABG: Applied Biosystems
000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxx Xxxx, XX 00000
Attn: Legal Department
Fax: 000-000-0000
TWT: Third Wave Technologies, Inc.
000 X. Xxxx Xxxx
Xxxxxxx, XX 00000-0000
Attn: President
Fax: (000) 000-0000
10. COUNTERPARTS. This Agreement may be executed in counterparts, each of which
shall be deemed an original, and all of which together, shall constitute one and
the same instrument.
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The parties hereto have caused this Agreement to be duly executed and effective
as of the Effective Date.
APPLIED BIOSYSTEMS GROUP THIRD WAVE TECHNOLOGIES, INC.
By: By:
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Name: Xxxxxxx X. Xxxxxxxxxxx, Ph.D. Name: Xxxxx Xxxx, Ph.D.
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Title: President Applied Biosystems Group Title: President & CEO
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SCHEDULE 1
EQUIPMENT
(To be attached and updated from time to time)
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