EXHIBIT 10.24
Customer No. 1188
MASTER LEASE AGREEMENT
Lessor: TRANSAMERICA BUSINESS CREDIT CORPORATION
Riverway 00
Xxxx Xxxxxx Xxxxx
Xxxx Xxxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Lessee: GENOMICA CORPORATION
0000 Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000-0000
The lessor pursuant to this Master Lease Agreement ("Agreement") dated as of
November 3, 1998, is Transamerica Business Credit Corporation ("Lessor"). All
equipment, together with all present and future additions, parts, accessories,
attachments, substitutions, repairs, improvements, and replacements thereof or
thereto, which are the subject of a Lease (as defined in the next sentence)
shall be referred to as "Equipment." Simultaneous with the execution and
delivery of this Agreement, the parties are entering into one or more Lease
Schedules (each, a "Schedule") which refer to and incorporate by reference this
Agreement, each of which constitutes a lease (each, a "Lease") for the Equipment
specified therein. Additional details pertaining to each Lease are specified in
the applicable Schedule. Each Schedule that the parties hereafter enter into
shall constitute a Lease. Lessor has no obligation to enter into any additional
leases with, or extend any future financing to, Lessee.
1. LEASE. Subject to and upon all of the terms and conditions of
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this Agreement and each Schedule, Lessor hereby agrees to lease to Lessee and
Lessee hereby agrees to lease from Lessor the Equipment having an aggregate cost
of $1,000,000 (but not to exceed $1,000,000) for the Term (as defined in
Paragraph 2 below) thereof. The timing and financial scope of Lessor's
obligation to enter into Leases hereunder are limited as set forth in the
Commitment Letter executed by Lessor and Lessee, dated as of October 1, 1998 and
attached hereto as Exhibit A (the "Commitment Letter").
2. TERM. Each Lease shall be effective and the term of each Lease
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("Term") shall commence on the commencement date specified in the applicable
Schedule and, unless sooner terminated (as hereinafter provided), shall expire
at the end of the term specified in such Schedule: provided, however, that
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obligations due to be performed by Lessee during the Term shall continue until
they have been performed in full. Schedules will only be executed after the
delivery of the Equipment to Lessee or upon completion of deliveries of items of
such Equipment with aggregate cost of not less than $50,000.
3. RENT. Lessee shall pay as rent to Lessor, for use of the
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Equipment during the Term or Renewal Term (as defined in Paragraph 8), rental
payments equal to the sum of all rental payments including, without limitation,
security deposits, advance rents, and interim rents payable in the amounts and
on the dates specified in the applicable Schedule ("Rent"). If any Rent or other
amount payable by Lessee is not paid within five days after the day on which it
becomes payable. Lessee will pay on demand, as a late charge. an amount equal to
5% of such unpaid Rent or other amount but only to the extent permitted by
applicable law. All payments provided for herein shall be payable to Lessor at
its address specified above, or at any other place designated by Lessor.
4. LEASE NOT CANCELABLE; LESSEE'S OBLIGATIONS ABSOLUTE. No Lease
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may be canceled or terminated except as expressly provided herein. Lessee's
obligation to pay all Rent due or to become due hereunder shall be absolute and
unconditional and shall not be subject to any delay, reduction, set-off,
defense, counterclaim, or recoupment for any reason whatsoever, including any
failure of the Equipment or any representations by the manufacturer or the
vendor thereof. If the Equipment is unsatisfactory for any reason, Lessee
shall make any claim solely against the manufacturer or the vendor thereof and
shall nevertheless pay Lessor all Rent payable hereunder.
5. SELECTION AND USE OF EQUIPMENT. Lessee agrees that it shall be
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responsible for the selection and use of, and results obtained from, the
Equipment and any other associated equipment or services.
6. WARRANTIES. LESSOR MAKES NO REPRESENTATION OR WARRANTY, EXPRESS
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OR IMPLIED, AS TO ANY MATTER WHATSOEVER, INCLUDING, WITHOUT LIMITATION, THE
DESIGN OR CONDITION OF THE EQUIPMENT OR ITS MERCHANTABILITY, SUITABILITY,
QUALITY, OR FITNESS FOR A PARTICULAR PURPOSE, AND HEREBY DISCLAIMS ANY SUCH
WARRANTY. LESSEE SPECIFICALLY WAIVES ALL RIGHTS TO MAKE A CLAIM AGAINST LESSOR
FOR BREACH OF ANY WARRANTY WHATSOEVER. LESSEE LEASES THE EQUIPMENT "AS IS." IN
NO EVENT SHALL LESSOR HAVE ANY LIABILITY, NOR SHALL LESSEE HAVE ANY REMEDY
AGAINST LESSOR, FOR ANY LIABILITY, CLAIM, LOSS, DAMAGE, OR EXPENSE CAUSED
DIRECTLY OR INDIRECTLY BY THE EQUIPMENT OR ANY DEFICIENCY OR DEFECT THEREOF OR
THE OPERATION, MAINTENANCE, OR REPAIR THEREOF OR ANY CONSEQUENTIAL DAMAGES AS
THAT TERM IS USED IN SECTION 2-719(3) OF THE MODEL UNIFORM COMMERCIAL CODE, AS
AMENDED FROM TIME TO TIME ("UCC"). Lessor grants to Lessee, for the sole purpose
of prosecuting a claim, the benefits of any and all warranties made available by
the manufacturer or the vendor of the Equipment to the extent assignable.
7. DELIVERY. Lessor hereby appoints Lessee as Lessor's agent for
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the sole and limited purpose of accepting delivery of the Equipment from each
vendor thereof. Lessee shall pay any and all delivery and installation charges.
Lessor shall not be liable to Lessee for any delay in, or failure of, delivery
of the Equipment.
8. RENEWAL. So long as no Event of Default or event which, with the
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giving of notice, the passage of time, or both, would constitute an Event of
Default, shall have occurred and be continuing, or the Lessee shall not have
exercised its purchase option under Paragraph 9 hereof, each Lease will
automatically renew for a term specified in the applicable Schedule (the
"Renewal Term") on the terms and conditions of this Agreement or as set forth in
such Schedule; provided, however, that Obligations due to be performed by the
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Lessee during the Renewal Term shall continue until they have been performed in
full.
9. PURCHASE OPTION. So long as no Event of Default or event which,
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with the giving of notice, the passage of time, or both, would constitute an
Event of Default, shall have occurred and be continuing, Lessee may, upon
written notice to Lessor received at least one hundred eighty days before the
expiration of a Term, purchase all, but not less than all, the Equipment covered
by the applicable Lease on the date specified therefor in the applicable
Schedule ("Purchase Date"). The purchase price for such Equipment shall be its
fair market value as set forth in the applicable Schedule determined on an "In-
place, In-use" basis, as mutually agreed by Lessor and Lessee, or, if they
cannot agree, as determined by an independent appraiser selected by Lessor and
approved by Lessee, which approval will not be unreasonably delayed or withheld.
Lessee shall pay the cost of any such appraisal. So long as no Event of Default
or event which, with the giving of notice, the passage of time, or both, would
constitute an Event of Default shall have occurred and be continuing, Lessee
may, upon written notice to Lessor received at least one hundred eighty days
prior to the expiration of the Renewal Term, purchase all, but not less than
all, the Equipment covered by the applicable Schedule by the last date of the
Renewal Term (the "Alternative Purchase Date") at a purchase price equal to its
then fair market value on an "In-place, In-use" basis. On the Purchase Date or
the Alternative Purchase Date, as the case may be, for any Equipment, Lessee
shall pay to Lessor the purchase price, together with all sales and other taxes
applicable to the transfer of the Equipment and any other amount payable and
arising hereunder. in immediately available funds, whereupon Lessor shall
transfer to Lessee, without recourse or warranty of any kind. express or
implied, all of Lessor's right, title, and interest in and to such Equipment on
an "As Is, Where Is" basis.
10. OWNERSHIP; INSPECTION; MARKING; FINANCING STATEMENTS. Lessee
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shall affix to the Equipment any labels supplied by Lessor indicating ownership
of such Equipment. The Equipment is and shall be the sole property of Lessor.
Lessee shall have no right, title, or interest therein. except as lessee under a
Lease. The Equipment is and shall at all times be and remain personal property
and shall not become a fixture. Lessee shall obtain and record such instruments
and take such steps as may be necessary to prevent any person
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from acquiring any rights in the Equipment by reason of the Equipment being
claimed or deemed to be real property. Upon request by Lessor, Lessee shall
obtain and deliver to Lessor valid and effective waivers, in recordable form, by
the owners, landlords, and mortgagees of the real property upon which the
Equipment is located or certificates of Lessee that it is the owner of such real
property, or that such real property, is neither leased nor mortgaged. Lessee
shall make the Equipment and its maintenance records available for inspection by
Lessor at reasonable times and upon reasonable notice. Lessee shall execute and
deliver to Lessor for filing any UCC financing statements or similar documents
Lessor may reasonably request.
11. EQUIPMENT USE. Lessee agrees that the Equipment will be operated
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by competent, qualified personnel in connection with Lessee's business for the
purpose for which the Equipment was designed and in accordance with applicable
operating instructions, laws, and government regulations, and that Lessee shall
use all reasonable precautions to prevent loss or damage to the Equipment from
fire and other hazards. Lessee shall procure and maintain in effect all orders,
licenses, certificates, permits, approvals, and consents required by federal,
state, or local laws or by any governmental body, agency, or authority, in
connection with the delivery, installation, use, and operation of the Equipment.
12. MAINTENANCE. Lessee, at its sole cost and expense, shall keep
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the Equipment in a suitable environment as specified by the manufacturer's
guidelines or the equivalent, shall meet all recertification requirements, and
shall maintain the Equipment in its original condition and working order,
ordinary wear and tear excepted. At the reasonable request of Lessor, Lessee
shall furnish all proof of maintenance.
13. ALTERATION; MODIFICATIONS; PARTS. Lessee may alter or modify the
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Equipment only with the prior written consent of Lessor. Any alteration shall be
removed and the Equipment restored to its normal, unaltered condition at
Lessee's expense (without damaging the Equipment's originally intended function
or its value) prior to its return to Lessor. Any part installed in connection
with warranty or maintenance service or which cannot be removed in accordance
with the preceding sentence shall be the property of Lessor.
14. RETURN OF EQUIPMENT. Except for Equipment that has suffered a
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Casualty Loss (as defined in Paragraph 15 below) and is not required to be
repaired pursuant to Paragraph 15 below or Equipment purchased by Lessee
pursuant to Paragraph 9 above, upon the expiration of the Renewal Term of a
Lease, or upon demand by Lessor pursuant to Paragraph 22 below, Lessee shall
contact Lessor for shipping instructions and, at Lessee's own risk, immediately
return the Equipment, freight prepaid, to a location in the continental United
States specified by Lessor. At the time of such return to Lessor, the Equipment
shall (i) be in the operating order, repair, and condition as required by or
specified in the original specifications and warranties of each manufacturer and
vendor thereof, ordinary wear and tear excepted, (ii) meet all recertification
requirements, and (iii) be capable of being promptly assembled and operated by a
third party purchaser or third party lessee without further repair, replacement,
alterations, or improvements, and in accordance and compliance with any and all
statutes, laws, ordinances, rules, and regulations of any governmental authority
or any political subdivision thereof applicable to the use and operating of the
Equipment. Except as otherwise provided under Paragraph 9 hereof, at least one
hundred eighty days before the expiration of the Renewal Term, Lessee shall give
Lessor notice of its intent to return the Equipment at the end of such Renewal
Term. During the one hundred eighty-day period prior to the end of a Term or the
Renewal Term, Lessor and its prospective purchasers or lessees shall have, upon
not less than two business days prior notice to Lessee and during normal
business hours, or at any time and without prior notice upon the occurrence and
continuance of an Event of Default, the right of access to the premises on which
the Equipment is located to inspect the Equipment, and Lessee shall cooperate in
all other respects with Lessor's remarketing of the Equipment. The provisions of
this Paragraph 14 are of the essence of the Lease, and upon application to any
court of equity having jurisdiction in the premises, Lessor shall be entitled to
a decree against Lessee requiring specific performance of the covenants of
Lessee set forth in this Paragraph 14. If Lessee fails to return the Equipment
when required, the terms and conditions of the Lease shall continue to be
applicable and Lessee shall continue to pay Rent until the Equipment is received
by Lessor.
15. CASUALTY INSURANCE; LOSS OR DAMAGE. Lessee will maintain, at its
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own expense, liability and property damage insurance relating to the Equipment.
insuring against such risks as are customarily insured against on the type of
equipment leased hereunder by businesses in which Lessee is engaged in such
amounts, in such form, and with insurers satisfactory to Lessor; provided,
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however, that the amount of
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insurance against damage or loss shall be not less than the greater of (a) the
replacement value of the Equipment and (b) the stipulated loss value of the
Equipment specified in the applicable Schedule ("Stipulated Loss Value"). Each
liability insurance policy shall provide coverage (including, without
limitation, personal injury coverage) of not less than $1,000,000 for each
occurrence, and shall name Lessor as an additional insured; and each property
damage policy shall name Lessor as sole loss payee and all policies shall
contain a clause requiring the insurer to give Lessor at least thirty days'
prior written notice of any alteration in the terms or cancellation of the
policy. Lessee shall furnish to Lessor a copy of each insurance policy (with
endorsements) or other evidence satisfactory to Lessor that the required
insurance coverage is in effect; provided, however, Lessor shall have no duty to
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ascertain the existence of or to examine the insurance policies to advise Lessee
if the insurance coverage does not comply with the requirements of this
Paragraph. If Lessee fails to insure the Equipment as required, Lessor shall
have the right but not the obligation to obtain such insurance, and the cost of
the insurance shall be for the account of Lessee due as part of the next due
Rent. Lessee consents to Lessor's release, upon its failure to obtain
appropriate insurance coverage, of any and all information necessary to obtain
insurance with respect to the Equipment or Lessor's interest therein.
Until the Equipment is returned to and received by Lessor as provided
in Paragraph 14 above, Lessee shall bear the entire risk of theft or destruction
of or damage to, the Equipment including, without limitation, any condemnation,
seizure, or requisition of title or use ("Casualty Loss"). No Casualty Loss
shall relieve Lessee from its obligations to pay Rent except as provided in
clause (b) below. When any Casualty Loss occurs, Lessee shall immediately notify
Lessor and, at the option of Lessor, shall promptly (a) place such Equipment in
good repair and working order; or (b) pay Lessor an amount equal to the
Stipulated Loss Value of such Equipment and all other amounts (excluding Rent)
payable by Lessee hereunder, together with a late charge on such amounts at a
rate per annum equal to the rate imputed in the Rent payments hereunder (as
reasonably determined by Lessor) from the date of the Casualty Loss through the
date of payment of such amounts, whereupon Lessor shall transfer to Lessee,
without recourse or warranty (express or implied), all of Lessor's interest, if
any, in and to such Equipment on an "AS IS, WHERE IS" basis. The proceeds of any
insurance payable with respect to the Equipment shall be applied, at the option
of Lessor, either towards (i) repair of the Equipment or (ii) payment of any of
Lessee's obligations hereunder. Lessee hereby appoints Lessor as Lessee's
attorney-in-fact to make claim for, receive payment of, and execute and endorse
all documents, checks or drafts issued with respect to any Casualty Loss under
any insurance policy relating to the Equipment.
16. TAXES. Lessee shall pay when due, and indemnify and hold Lessor
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harmless from, all sales, use, excise, and other taxes, charges, and fees
(including, without limitation, income, franchise, business and occupation,
gross receipts, licensing, registration, titling, personal property, stamp and
interest equalization taxes, levies, imposts, duties, charges, or withholdings
of any nature), and any fines, penalties, or interest thereon, imposed or levied
by any governmental body, agency, or tax authority upon or in connection with
the Equipment, its purchase, ownership, delivery, leasing, possession, use, or
relocation of the Equipment or otherwise in connection with the transactions
contemplated by each Lease or the Rent thereunder, excluding taxes on or
measured by the net income of Lessor. Upon request, Lessee will provide proof of
payment. Unless Lessor elects otherwise, Lessee will pay all property taxes on
the Equipment. Lessee shall timely prepare and file all reports and returns
which are required to be made with respect to any obligation of Lessee under
this Paragraph 16. Lessee shall, to the extent permitted by law, cause all
xxxxxxxx of such fees, taxes, levies, imposts, duties, withholdings, and
governmental charges to be made to Lessor in care of Lessee. Upon request.
Lessee will provide Lessor with copies of all such xxxxxxxx.
17. LESSOR'S PAYMENT. If Lessee fails to perform its obligations
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under Paragraph 15 or 16 above, or Paragraph 23 below, Lessor shall have the
right to substitute performance, in which case Lessee shall immediately
reimburse Lessor therefor.
18. GENERAL INDEMNITY. Each Lease is a net lease. Therefore, Lessee
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shall indemnify Lessor and its successors and assigns against, and hold Lessor
and its successors and assigns harmless from, any and all claims, actions,
damages, obligations, liabilities, and all costs and expenses, including,
without limitation, legal fees incurred by Lessor or its successors and assigns
arising out of each Lease including, without limitation, the purchase,
ownership, delivery, lease, possession, maintenance, condition, use, or return
of the Equipment, or arising by operation of law, except that Lessee shall not
be liable for any claims, actions, damages, obligations, and costs and expenses
determined by a non-appealable, final order of a court of competent jurisdiction
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to have occurred as a result of the gross negligence or willful misconduct of
Lessor or its successors and assigns. Lessee agrees that upon written notice by
Lessor of the assertion of any claim, action, damage, obligation, liability, or
lien, Lessee shall assume full responsibility for the defense thereof, provided
that Lessor's failure to give such notice shall not limit or otherwise affect
its rights hereunder. Any payment pursuant to this Paragraph (except for any
payment of Rent) shall be of such amount as shall be necessary so that, after
payment of any taxes required to be paid thereon by Lessor, including taxes on
or measured by the net income of Lessor, the balance will equal the amount due
hereunder. The provisions of this Paragraph with regard to matters arising
during a Lease shall survive the expiration or termination of such Lease.
19. ASSIGNMENT BY LESSEE. Lessee shall not, without the prior
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written consent of Lessor, (a) assign, transfer, pledge, or otherwise dispose of
any Lease or Equipment, or any interest therein; (b) sublease or lend any
Equipment or permit it to be used by anyone other than Lessee and its employees;
or (c) move any Equipment from the location specified for it in the applicable
Schedule, except that Lessee may move Equipment to another location within the
United States provided that Lessee has delivered to Lessor (A) prior written
notice thereof and (B) duly executed financing statements and other agreements
and instruments (all in form and substance satisfactory to Lessor) necessary or,
in the opinion of the Lessor, desirable to protect Lessor's interest in such
Equipment. Notwithstanding anything to the contrary in the immediately preceding
sentence, Lessee may keep any Equipment consisting of motor vehicles or rolling
stock at any location in the United States.
20. ASSIGNMENT BY LESSOR. Lessor may assign its interest or grant a
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security interest in any Lease and the Equipment individually or together, in
whole or in part. If Lessee is given written notice of any such assignment, it
shall immediately make all payments of Rent and other amounts hereunder directly
to such assignee. Each such assignee shall have all of the rights of Lessor
under each Lease assigned to it. Lessee shall not assert against any such
assignee any set-off, defense, or counterclaim that Lessee may have against
Lessor or any other person.
21. DEFAULT; NO WAIVER. Lessee or any guarantor of any or all of the
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obligations of Lessee hereunder (together with Lessee, the "Lease Parties")
shall be in default under each Lease upon the occurrence of any of the following
events (each, an "Event of Default"): (a) Lessee fails to pay within five days
of when due any amount required to be paid by Lessee under or in connection with
any Lease; (b) any of the Lease Parties fails to perform any other provision
under or in connection with a Lease or violates any of the covenants or
agreements of such Lease Party under or in connection with a Lease; (c) any
representation made or financial information delivered or furnished by any of
the Lease Parties under or in connection with a Lease shall prove to have been
inaccurate in any material respect when made; (d) any of the Lease Parties makes
an assignment for the benefit of creditors, whether voluntary or involuntary, or
consents to the appointment of a trustee or receiver, or if either shall be
appointed for any of the Lease Parties or for a substantial part of its property
without its consent and, in the case of any such involuntary proceeding such
proceeding remains undismissed or unstayed for forty-five days following the
commencement thereof; (e) any petition or proceeding is filed by or against any
of the Lease Parties under any Federal or State bankruptcy or insolvency code or
similar law and, in the case of any such involuntary petition or proceeding,
such petition or proceeding remains undismissed or unstayed for forty-five days
following the filing or commencement thereof or any of the Lease Parties takes
any action authorizing any such petition or proceeding; (f) any of the Lease
Parties fails to pay when due any indebtedness for borrowed money or under
conditional sales or installment sales contracts or similar agreements, leases,
or obligations evidenced by bonds, debentures, notes, or other similar
agreements or instruments to any creditor (including Lessor under any other
agreement) after any and all applicable cure periods therefor shall have
elapsed; (g) any judgment shall be rendered against any of the Lease Parties
which shall remain unpaid or unstayed for a period of sixty days: (h) any of the
Lease Parties shall dissolve, liquidate, wind up or cease its business, sell or
otherwise dispose of all or substantially all of its assets, or make any
material change in its lines of business; (i) any of the Lease Parties shall
amend or modify its name, unless such Lease Party delivers to Lessor, thirty
days prior to any such proposed amendment or modification, written notice of
such amendment or modification and within ten days before such amendment or
modification delivers executed financing statements (in form and substance
satisfactory to the Lessor); (j) any of the Lease Parties shall merge or
consolidate with any other entity or make any material change in its capital
structure, in each case without Lessor's prior written consent, which shall not
be unreasonably withheld; (k) any of the Lease Parties shall suffer any loss or
suspension of any material license, permit, or other right or asset necessary to
the profitable conduct of its business, fail generally to pay its debts as they
mature, or call a meeting for the purposes of compromising its debts: (1) any of
the Lease Parties shall deny or disaffirm its obligations hereunder or under any
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of the documents delivered in connection herewith; (m) there is a change, which
change results from a single transaction or series of related transactions, but
not from the sale of newly issued securities to investors, in more than 35% of
the ownership of any equity interests of any of the Lease Parties on the date
hereof or more than 35% of such interests become subject to any contractual.
judicial or statutory lien, charge, security interest, or encumbrance; or (n)
any of the Lease Parties suffers a material adverse change in the business,
prospects, operations, results of operations, asses, liabilities, or condition
(financial or otherwise).
22. REMEDIES. Upon the occurrence and continuation of an Event of
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Default, Lessor shall have the right, in is sole discretion, to exercise any one
or more of the following remedies: (a) terminate each Lease; (b) declare any and
all Rent and other amounts then due and any and all Rent and other amounts to
become due under each Lease (collectively, the "Lease Obligations") immediately
due and payable; (c) take possession of any or all items of Equipment, wherever
located, without demand, notice, court order, or other process of law, and
without liability for entry to Lessee's premises, for damage to Lessee's
property, or otherwise; (d) demand that Lessee immediately return any or all
Equipment to Lessor in accordance with Paragraph 14 above, and, for each day
that Lessee shall fail to return any item of Equipment, Lessor may demand an
amount equal to the Rent payable for such Equipment in accordance with Paragraph
14 above; (e) lease, sell, or otherwise dispose of the Equipment in a
commercially reasonable manner, with or without notice and on public or private
bid; (f) recover the following amounts from the Lessee (as damages, including
reimbursement of costs and expenses, liquidated for all purposes and not as a
penalty): (i) all costs and expenses of Lessor reimbursable to it hereunder,
including, without limitation, expenses of disposition of the Equipment, legal
fees, and all other amounts specified in Paragraph 23 below; (ii) an amount
equal to the sum of (A) any accrued and unpaid Rent through the later of (1) the
date of the applicable default, (2) the date that Lessor has obtained possession
of the Equipment, or (3) such other date as Lessee has made an effective tender
of possession of the Equipment to Lessor (the "Default Date") and (B) if Lessor
resells or re-lets the Equipment, Rent at the periodic rate provided for in each
Lease for the additional period that it takes Lessor to resell or re-let all of
the Equipment; (iii) the present value of all future Rent reserved in the Leases
and contracted to be paid over the unexpired Term of the Leases discounted at
five percent compound interest; (iv) the reversionary value of the Equipment as
of the expiration of the Term of the applicable Lease as set forth on the
applicable Schedule; and (v) any indebtedness for Lessee's indemnity under
Paragraph 18 above, plus a late charge at the rate specified in Paragraph 3
above, less the amount received by Lessor, if any, upon sale or re-let of the
Equipment; and (g) exercise any other right or remedy to recover damages or
enforce the terms of the Leases. Upon the occurrence and continuance of an Event
of Default or an event which with the giving of notice or the passage of time,
or both, would result in an Event of Default, Lessor shall have the right.
whether or not Lessor has made any demand or the obligations of Lessee hereunder
have matured, to appropriate and apply to the payment of the obligations of
Lessee hereunder all security deposits and other deposits (general or special,
time or demand, provisional or final) now or hereafter held by and other
indebtedness or property now or hereafter owing by Lessor to Lessee. Lessor may
pursue any other rights or remedies available at law or in equity, including,
without limitation, rights or remedies seeking damages, specific performance,
and injunctive relief Any failure of Lessor to require strict performance by
Lessee, or any waiver by Lessor of any provision hereunder or under any
Schedule, shall not be construed as a consent or waiver of any other breach of
the same or of any other provision. Any amendment or waiver of any provision
hereof or under any Schedule or consent to any departure by Lessee herefrom or
therefrom shall be in writing and signed by Lessor.
No right or remedy is exclusive of any other provided herein or
permitted by law or equity. All such rights and remedies shall be cumulative and
may be enforced concurrently or individually from time to time.
23. LESSOR'S EXPENSE. Lessee shall pay Lessor on demand all costs
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and expenses (including legal fees and expenses) incurred in connection with the
preparation, execution and delivery of this Agreement and any other agreements
and transaction contemplated hereby, which expenses shall not exceed $3,000
without the written consent of Lessee and all costs and expenses in protecting
and enforcing Lessor's rights and interests in each Lease and the equipment,
including, without limitation, legal, collection, and remarketing fees and
expenses incurred by Lessor in enforcing the terms, conditions, or provisions of
each Lease or upon the occurrence and continuation of an Event of Default.
24. LESSEE'S WAIVERS. To the extent permitted by applicable law,
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Lessee hereby waives any and all rights and remedies conferred upon a lessee by
Sections 2A-508 through 2A-522 of the UCC. To the extent permitted by applicable
law, Lessee also hereby waives any rights now or hereafter conferred by statute
or
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otherwise which may require Lessor to sell, lease, or otherwise use any
Equipment in mitigation of Lessor's damages as set forth in Paragraph 22 above
or which may otherwise limit or modify any of Lessor's rights or remedies under
Paragraph 22. Any action by Lessee against Lessor for any default by Lessor
under any Lease shall be commenced within one year after any such cause of
action accrues.
25. NOTICES; ADMINISTRATION. Except as otherwise provided herein,
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all notices, approvals, consents, correspondence, or other communications
required or desired to be given hereunder shall be given in writing and shall be
delivered by overnight courier, hand delivery, or certified or registered mail,
postage prepaid, if to Lessor, then to Transamerica Technology Finance Division,
00 Xxxxxxxxx Xxxx Xxxx, Xxxxxxxxxx, Xxxxxxxxxxx 00000, Attention: Assistant Vice
President, Lease Administration, with a copy to Lessor at Riverway II, West
Office Tower, 0000 Xxxx Xxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000, Attention: Legal
Department, if to Lessee, then to Genomica Corporation, 0000 Xxxxxxxxx Xxxxx,
Xxxxx 000, Xxxxxxx, Xxxxxxxx 00000-0000, Attention: Vice President Finance &
Chief Financial Officer or such other address as shall be designated by Lessee
or Lessor to the other party. All such notices and correspondence shall be
effective when received.
26. REPRESENTATIONS. Lessee represents and warrants to Lessor that
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(a) Lessee is duly organized, validly existing, and in good standing under the
laws of the State of its incorporation; (b) the execution, delivery, and
performance by Lessee of this Agreement are within Lessee's powers, have been
duly authorized by all necessary action, and do not and will not contravene (i)
Lessee's organizational documents or (ii) any law, regulation, rule, or
contractual restriction binding on or affecting Lessee; (c) no authorization or
approval or other action by, and no notice to or filing with, any governmental
authority or regulatory body is required for the due execution, delivery, and
performance by Lessee of this Agreement; (d) each Lease constitutes the legal,
valid, and binding obligations of Lessee enforceable against Lessee in
accordance with its terms; (e) the cost of each item of Equipment does not
exceed the fair and usual price for such type of equipment purchased in like
quantity and reflects all discounts, rebates, and allowances for the Equipment
(including, without limitation, discounts for advertising, prompt payment,
testing, or other services) given to the Lessee by the manufacturer, supplier,
or any other person; and (f) all information supplied by Lessee to Lessor in
connection herewith is correct and does not omit any material statement
necessary to insure that the information supplied is not misleading.
27. FURTHER ASSURANCES. Lessee, upon the request of Lessor, will
------------------
execute, acknowledge, record, or file, as the case may be, such further
documents and do such further acts as may be reasonably necessary, desirable, or
proper to carry out more effectively the purposes of this Agreement. Lessee
hereby appoints Lessor as its attorney-in-fact to execute on behalf of Lessee
and authorizes Lessor to file without Lessee's signature any UCC financing
statements and amendments Lessor deems advisable.
28. FINANCIAL STATEMENTS. Lessee shall deliver to Lessor: (a) as
--------------------
soon as available, but not later than 120 days after the end of each fiscal year
of Lessee and its consolidated subsidiaries, the consolidated balance sheet,
income statement, and statements of cash flows and shareholders equity for
Lessee and its consolidated subsidiaries (the "Financial Statements") for such
year, reported on by independent certified public accountants without an adverse
qualification; and (b) as soon as available, but not later than 60 days after
the end of each of the first three fiscal quarters in any fiscal year of Lessee
and its consolidated subsidiaries, the Financial Statements for such fiscal
quarter, together with a certification duly executed by a responsible officer of
Lessee that such Financial Statements have been prepared in accordance with
generally accepted accounting principles and are fairly stated in all material
respects (subject to normal year-end audit adjustments). Lessee shall also
deliver to Lessor as soon as available copies of all press releases and other
similar communications issued by Lessee.
29. CONSENT TO JURISDICTION. Lessee irrevocably submits to the
-----------------------
jurisdiction of any Illinois state or federal court sitting in Illinois for any
action or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby, and Lessee irrevocably agrees that all claims
in respect of any such action or proceeding may be heard and determined in such
Illinois state or federal court.
30. WAIVER OF JURY TRIAL. LESSEE AND LESSOR IRREVOCABLY WAIVE ALL
--------------------
RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
7
31. FINANCE LEASE. Lessee and Lessor agree that each Lease is a
-------------
"Finance Lease" as defined by Section 2A-103(g) of the UCC. Lessee acknowledges
that Lessee has reviewed and approved each written Supply Contract (as defined
by UCC 2A-103(y)) covering Equipment purchased from each "Supplied' (as defined
by UCC 2A-103(x)) thereof.
32. NO AGENCY. Lessee acknowledges and agrees that neither the
---------
manufacturer or supplier, nor any salesman, representative, or other agent of
the manufacturer or supplier, is an agent of Lessor. No salesman,
representative, or agent of the manufacturer or supplier is authorized to waive
or alter any term or condition of this Agreement or any Schedule and no
representation as to the Equipment or any other manner by the manufacturer or
supplier shall in any way affect Lessee's duty to pay Rent and perform its other
obligations as set forth in this Agreement or any Schedule.
33. GOVERNING LAW; SEVERABILITY. EACH LEASE SHALL BE GOVERNED BY THE
---------------------------
LAWS OF THE STATE OF ILLINOIS WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW
PRINCIPLES THEREOF. IF ANY PROVISION SHALL BE HELD TO BE INVALID OR
UNENFORCEABLE, THE VALIDITY AND ENFORCEABILITY OF THE REMAINING PROVISIONS SHALL
NOT IN ANY WAY BE AFFECTED OR IMPAIRED.
LESSEE ACKNOWLEDGES THAT LESSEE HAS READ THIS AGREEMENT AND THE SCHEDULE HERETO,
UNDERSTANDS THEM, AND AGREES TO BE BOUND BY THEIR TERMS AND CONDITIONS. FURTHER,
LESSEE AND LESSOR AGREE THAT THIS AGREEMENT, THE SCHEDULES DELIVERED IN
CONNECTION HEREWITH FROM TIME TO TIME, AND THE COMMITMENT LETTER ARE THE
COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN THE PARTIES,
SUPERSEDING ALL PROPOSALS OR PRIOR AGREEMENTS, ORAL OR WRITTEN, AND ALL OTHER
COMMUNICATIONS BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTER HEREOF. SHOULD
THERE EXIST ANY INCONSISTENCY BETWEEN THE TERMS OF THE COMMITMENT LETTER AND
THIS AGREEMENT, THE TERMS OF THIS AGREEMENT SHALL PREVAIL.
8
IN WITNESS WHEREOF, the parties hereto have executed or caused this
Agreement to be duly executed by their duly authorized officers as of the date
first written above.
GENOMICA CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: V.P. Finance
Federal Tax ID: 00-0000000
TRANSAMERICA BUSINESS CREDIT CORPORATION
By: /s/ Xxxx X.Xxxx
------------------------------
Name: Xxxx X. Xxxx
Title: Vice President
9
TRANSAMERICA
BUSINESS CREDIT
[Xxxxxx X. Xxxxxxx
Letterhead Information]
Exhibit A
October 1, 1998
Xx. Xxxxxxx X. Xxxxxxx
Genomica Corporation
0000 Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, XX 00000-0000
Dear Xxxx:
Transamerica Business Credit Corporation - Technology Finance Division
("Lessor") is pleased to offer this commitment (this "Commitment") to lease the
equipment described below to Genomica Corporation ("Lessee"). This Commitment
supercedes all prior correspondence, proposals, and oral or other communications
relating to leasing arrangements between Lessor and Lessee.
The outline of this offer is as follows:
Lessor: Transamerica Business Credit Corporation - Technology
------
Finance Division and/or its affiliates, successors or
assigns.
Lessee: Genomica Corporation
------
Equipment Cost: Not to exceed $1,000,000 in the aggregate, of which up
--------------
to $300,000 may be for software and other soft costs.
Equipment: Office and computer equipment, software and related
---------
soft costs, including but not limited to all
additions, accessions, improvements, replacements and
attachments thereto and proceeds (including insurance
proceeds) thereof (the "Equipment"). Equipment
purchased prior to the date hereof will be financed at
its net book value.
Location of Equipment: 0000 Xxxxxxxxx Xxxxx, Xxxxxxx, XX.
---------------------
Anticipated Draw-Down A minimum of $200,000 will be drawn on or before
---------------------
Schedule: October 31, 1998, and the remaining availability will
--------
be drawn on or before December 30, 1999.
Lease Term: Each Lease Term will commence upon delivery of the
----------
Equipment or upon each delivery of items of Equipment
having an aggregate cost of not less than $50,000, and
will continue through 36 months from the first day of
the month next following or coincident with
commencement of that Lease Term.
Payment Terms: Monthly Rent equal to 3.1551% of Equipment Cost will
------------- be payable monthly in advance. The first and last
Monthly Rent payments will be and payable on or before
commence of each Lease Term.
Adjustment to Lessor reserves the right to increase shall charge at
------------- the rate set forth above as of the date each lease Term
Monthly Rent: commences proportionally to the change in the weekly
------------ Average of interest rates of three-year U.S. Treasury
Securities as
1
published in the Wall Street Journal from
the week ending August 7, 1998 to the week preceding
the commencement of such Lease Term. As of the date
each Lease Term commences, the Monthly Rent will be
fixed for that entire Lease Term.
Purchase Option: At the expiration of each Lease Term, the Lessee will
---------------
have the option to purchase all (but not less than all)
of the Equipment for its then Fair Market Value, plus
any applicable sales or other taxes. It will be agreed
that Fair Market Value will be 10% of Equipment Cost.
Automatic Renewal: In the event the Lessee does not exercise the Purchase
-----------------
Option described above, each Lease will automatically
renew for a term of twelve months with Monthly Rentals
equal to 1.25% of Equipment Cost payable monthly in
advance. At the expiration of the renewal period, the
Lessee will have the option to purchase all (but not
less than all) the Equipment for its then fair market
value which shall not exceed 5% of equipment cost, plus
applicable sales and other taxes.
Interim Rent: Interim Rent will accrue from the date each Lease Term
------------ commences until the next following first day of a month
(unless the Lease Term commences on the first day of a
month). Interim Rent will be calculated at the daily
equivalent of the currently adjusted Monthly Rent.
Conditions Precedent Each Lease will be subject to the following:
--------------------
to Lease Term 1. No material adverse change in the financial
------------- condition, operation or prospects of the Lessee
Commencement prior to funding. The Lessor reserves the right not
------------ to fund any unused portion of its commitment in the
event of a material adverse change in the financial
condition, operation or prospects of the Lessee.
2. Completion of the documentation and final terms of
the proposed financing satisfactory to Lessor and
Lessor's counsel.
3. Results of al1 due diligence, including lien,
judgment and tax search and other matters Lessor may
request shall be satisfactory to Lessor and Lessor's
counsel.
4. Receipt by Lessor of duly executed Lease
documentation in form and substance satisfactory to
Lessor and its counsel.
5. Lessor shall receive a valid and perfected first
priority lien and security interest in the Equipment
and Lessor shall have received satisfactory evidence
that there are no liens on the Equipment except as
expressly permitted herein.
6. Evidence satisfactory to Lessor of either (i) a firm
commitment from existing investors to provide a
bridge loan in an amount at least double the
aggregate of all amounts drawn and requested to be
drawn hereunder, or (ii) receipt of at least
$5,000,000 gross proceeds of a Series B Preferred
Stock offering.
Additional Covenants: There will be no actual or threatened conflict with, or
-------------------- violation of, any regulatory statute, standard or rule
relating to the Lessee, its present or future
operations, or the Equipment.
Lessee will be required to provide quarterly financial
information. All information ??illegible on original??
will not omit any statement necessary to make the
information supplied not be misleading. There will be
no material breach of the representations and
warranties of the Lessee in the lease. The
representations will include that the Equipment Cost of
each item of the Equipment does not exceed the fair and
usual price for like quantity purchased of such item
and reflects all discounts, rebates and allowances for
the Equipment
2
given to Lessee by the manufacturer, supplier or
anyone else including, without limitation, discounts
for advertising, prompt payment, testing or other
services.
Net Lease: The Leases will be net leases under which the Lessee
--------- will be responsible for maintenance, insurance, taxes
and all other costs and expenses.
Taxes: Sales or use taxes will be added to the Equipment Cost
----- or collected on the gross rentals, as appropriate.
Insurance: Prior to any delivery of equipment, the Lessee will
--------- furnish confirmation of insurance acceptable to the
Lessor covering the Equipment including primary, all
risk, physical damage, property damage and bodily
injury with appropriate loss payee and additional
insured endorsements in favor of the Lessor.
Expenses: All costs and expenses incurred by the Lessor in
-------- connection with the underwriting and closing of the
Leases will be paid by the Lessee whether or not any
Leases are consummated and funds are advanced by the
Lessor. Such Expenses will not exceed $3,000 without
the consent of the Lessee.
Law: This letter and the proposed Lease are intended to be
--- governed by and construed in accordance the Illinois
law without regard to its conflict of law provisions.
Indemnity: Lessee agrees to indemnify and to hold harmless
--------- Lessor, and its officers, directors and employees
against all claims, damages, liabilities and expenses
which may be incurred by or asserted against any such
person in connection with or arising out of this
letter and the transactions contemplated hereby, other
than claims, damages, liability, and expense resulting
from such person's gross negligence or willful
misconduct.
Confidentiality: This letter is delivered to you with the understanding
--------------- that neither it nor its substance shall be disclosed
publicly or privately to any third person except those
who are in a confidential relationship to you (such as
your legal counsel and accountants), or where the same
is required by law and then only on the basis that it
not be further disclosed, which conditions Lessee and
its agents agree to be bound by upon acceptance of
this letter.
Without limiting the generality of the foregoing, none
of such persons shall use or refer to Lessor or to any
affiliate name in any disclosures made in connection
with any of the transactions without Lessor's prior
written consent.
Upon completion of the initial takedown by Lessor and
Lessee, the Lessor will no longer be required to
obtain Lessors' prior written consent to disclose the
transaction contemplated hereby. In addition, the
Lessee agrees to provide camera ready artwork of
typestyles and logos of the Lessee for use in
promotional material by the Lessor.
Conditions of Acceptance: This Commitment Letter is intended to be a summary of
------------------------ the most important elements of the agreement to enter
into a leasing transaction with Lessee, and it is
subject to all requirements and conditions contained
in Lease documentation proposed by Lessor or its
counsel in the course of closing the Lease described
herein. Not every provision that imposes duties,
obligations, burdens, or limitations on Lessee is
contained herein, but shall be contained in the final
Lease documentation satisfactory to Lessor and its
counsel.
3
EACH OF THE PARTIES HERETO IRREVOCABLY AND
UNCONDITIONALLY WAIVES ALL RIGHT TO TRIAL BY JURY IN
ANY SUIT, ACTION, PROCEEDING OR COUNTERCLAIM ARISING
OUT OF OR RELATED TO THIS LETTER OR THE TRANSACTION
DESCRIBED IN THIS LETTER.
Application Fee: The $10,000 Application Fee previously paid by the
--------------- Lessee shall be first applied to the costs and
expenses of the Lessor in connection with closing the
transaction (capped at $3,000), and the remainder
shall be applied pro rata to the second month's rent
due under each Lease Schedule.
Commitment Expiration: This Commitment shall expire on October 8, 1998,
--------------------- unless prior the thereto either extended in writing by
the Lessor or accepted as provided below by the
Lessee.
Should you have any questions, please call me. If you wish to accept this
Commitment, please so indicate by signing and returning the enclosed duplicate
copy of this letter to me by October 8, 1998.
Yours truly,
TRANSAMERICA BUSINESS CREDIT
CORP - TECHNOLOGY FINANCE
DIVISION
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------
Xxxxxx X. Xxxxxxx
Senior Vice President - Marketing
Accepted this 8 day of October, 1998
-
GENOMICA CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: V.P. Finance
4
SECRETARY'S CERTIFICATE
I, Xxxxxxx Xxxxxxx, hereby state that I am the duly elected acting and
---------------
qualified Secretary of Genomica Corporation, a Delaware corporation (the
"Company"), and that:
(a) Through a unanimous consent in lieu of a Board of Directors
meeting of the Company, proposed in accordance with its bylaws and the laws of
said State on the 10 day of September, 1998, signed by a quorum for the
-- --------- -
transaction of business, the following resolutions were duly and regularly
adopted:
RESOLVED, that the form, terms and provisions of all of the documents
and instruments executed by the Company with and/or in favor of Transamerica
Business Credit Corporation (the "Agreements"), and the transactions
contemplated thereby be, and the same are, in all respects approved, and that
the President, each Vice President and each other officer of the Company (the
"Authorized Persons"), or any of them, be, and they hereby are, authorized,
empowered, and directed to execute and deliver the Agreements and any and all
other agreements, documents, instruments and certificates required or desirable
in connection therewith, if necessary or advisable, with such changes as they
may deem in the best interest of the Company, and their execution and delivery
of the Agreements, and all such other agreements, documents, instruments and
certificates, shall be deemed to be conclusive evidence that the same are in all
respects authorized and approved; and be it further
RESOLVED, that the actions of any Authorized Person heretofore taken
in furtherance of the Agreements be, and hereby are, approved, adopted and
ratified in all respects.
(i) The above resolutions: (a) are not contrary to the Articles or
Certificate of Incorporation or bylaws of the Company and (b) have not been
amended, modified, rescinded or revoked and are in full force and effect on the
date hereof.
(ii) The following persons are duly qualified and acting officers of
the Company, duly elected to the offices set forth opposite their respective
names, and the signature appearing opposite the name of each such officer is his
authentic signature:
Name Office Signature
---- ------ ---------
Xxxxxx X. Xxxx President & Chief Scientist Xxxxxx X. Xxxx
----------------------------------- -------------------------------------- ------------------------------
___________________________________ ______________________________________ ______________________________
Xxxxxxx X. Xxxxxxx V.P. Finance & C.F.O. Xxxxxxx X. Xxxxxxx
----------------------------------- -------------------------------------- ------------------------------
IN WITNESS WHEREOF, I have executed this Certificate, this 3 day of
-
November, 1998.
--------
Xxxxxxx X. Xxxxxxx
-----------------------------------
Secretary
[CORPORATE SEAL]
Form 3
Xxxxxxx X. Xxxxxxx is a duly qualified and acting officer of
the company, duly elected to the office set forth opposite
his respective name, and the signature appearing opposite
his name is his authentic signature.
by: Xxxxxx X. Xxxx
------------------------------------
Xxxxxx X. Xxxx
President
-1-
GENOMICA CORPORATION
CUSTOMER NO. 1188
CONTACT INFORMATION FORM
Please provide us with the names and telephone numbers of the individuals
that we should contact when inquiring about the following:
1. Documentation Questions
2. Accounts Payable
3. Equipment Questions
4. Insurance Questions
1. NAME: /s/ Xxxxxxx Xxxxxxx PHONE: 000 000 0000
-------------------------------- ------------------------
E-MAIL ADDRESS: xxxxxxx@xxxxxxxx.xxx
--------------------------------------------------------------
2. NAME: Xxxxx Xxxxxx PHONE: 000 000 0000
---------------------------------- ------------------------
E-MAIL ADDRESS: xxxxxx@xxxxxxxx.xxx
--------------------------------------------------------------
FAX: 000 000 0000
--------------------------
BILLING ADDRESS: 0000 Xxxxxxxxx Xxxxx, Xxx 000
-------------------------------------------------------------
Xxxxxxx, XX 00000
-----------------------------------------------------------
___________________________________________________________
3. NAME: Xx Xxxxxx PHONE: 000 000 0000
---------------------------------- ------------------------
E-MAIL ADDRESS: xxxxxx@xxxxxxxx.xxx
--------------------------------------------------------------
4. NAME: Xxxxxxx Xxxxxxx PHONE:________________________
---------------------------------
E-MAIL ADDRESS:______________________________________________________________
(please print)
