EQUIPMENT LEASE AGREEMENT Agreement Number Federal Tax ID # 20-1361282
EQUIPMENT
LEASE AGREEMENT Agreement
Number Federal
Tax ID # 00-0000000
This
document was written in “Plain
English”.
The
words YOU and YOUR refer to the customer. The words WE, US, and OUR Refer
to the
Lessor. Every attempt has been made to eliminate confusing language and create
a
simple, easy-to-read document.
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CUSTOMER
INFORMATION
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IsoRay
Medical, Inc.
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LEGAL
NAME OF CUSTOMER
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000
Xxxxx Xxxxxx, Xxxxx 000
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Xxxxxxxx
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XX
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00000
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XXXXXX
XXXXXXX
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XXXX
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XXXXX
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XXX
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XXXXX
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BILLING
NAME (IF DIFFERENT FROM ABOVE)
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BILLING
STREET ADDRESS
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CITY
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STATE
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ZIP
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PHONE
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EQUIPMENT
LOCATION (IF DIFFERENT FROM ABOVE)
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SUPPLIER
INFORMATION See schedule “A”,
attached hereto and made a part of.
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SUPPLIER
INFORMATION See schedule “A”,
attached hereto and made a part of.
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NAME
OF SUPPLIER
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CITY
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STATE
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ZIP
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PHONE
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QUANTITY
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ITEM
DESCRIPTION
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MODEL NO |
SERIAL
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See
schedule “A”,
attached hereto and made a part of.
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RENTAL
TERMS
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RENTAL
PAYMENT AMOUNT
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SECURITY
DEPOSIT
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Term
in months
48
(MOS.)
Rent
Commencement Date:
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48
Payment of $1,331.71
(plus applicable taxes)
Rental
Payment Period is Unless
Otherwise
Indicated
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$2,663.42
Received
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END
OF
LEASE OPTIONS: You will have the following options at the end of the original
term, provided the lease has not terminated early and no event of default
under
the lease has occurred and is continuing. THE EQUIPMENT SHALL BE SOLD ON
AN-IS,
WHERE-IS BASIS. If an option is not initialed below, option 2 will be designated
as the Customer’s
choice.
Initial
MKD
1.
Purchase the equipment for $1.00 OR Initial
______ 2. Purchase the equipment for the fair market value plus
any
applicable taxes OR renew the lease per paragraph 1 OR return
the equipment per paragraph 6
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THIS
IS A NONCANCELABLE/IRREVOCABLE LEASE, THIS LEASE CANNOT BE CANCELLED
OR
TERMINATED.
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TERMS
AND
CONDITIONS(THIS
LEASE AGREEMENTCONTAINS PROVISIONS SET FORTH ON THE REVERSE SIDE, ALL OF
WHICH
ARE MADE PART OF THIS LEASE AGREEMENT)
1.
LEASE
AGREEMENT: You agree to lease from us the personal property described under
“ITEM
DESCRIPTION”
and as
modified by supplements to (Continued on back)
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LESSOR
ACCEPTANCE
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CUSTOMER
ACCEPTANCE
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DATED:
April 14 2005
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DATED:
April
3
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2005
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LESSOR:
Nationwide Funding, LLC
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CUSTOMER:
IsoRay,
Medical, Inc.
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SIGNATURE:
X /S/
XXXX XXXX
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SIGNATURE: X
/S/
XXXXXXX XXXXXX
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TITLE:
PRESIDENT
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TITLE
CFO
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ACCEPTANCE
OF DELIVERY
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ACCEPTANCE
OF DELIVERY
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You
certify that all the equipment listed above has been furnished, that delivery
and installation has been fully completed and satisfactory. Further, all
conditions and terms of this agreement have been reviewed and acknowledged.
Upon
your signing below, your promises herein will be irrevocable and unconditional
in all respect. You understand and agree that we have purchased the equipment
from the supplier, and you may contact the above supplier for you warranty
rights, if any, which we transfer to you for the term of this lease. Your
approval as indicated below of our purchase of the equipment from supplier
is a
condition precedent to effectiveness of this lease.
04-03-05 IsoRay
Medical, Inc. X
/s/
Xxxxxxx Xxxxxx CFO
Date
of
Delivery Customer Signature:
Xxxxxxx Xxxxxx Title
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GUARANTY
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As
additional inducement for us to enter into the Agreement, the undersigned
(“you”),
jointly and severally, unconditionally personally guarantees that the customer
will make all payments meet all obligations required under this Agreement
and
any supplements fully and promptly. You agree that we may make other arrangement
including compromise or settlement with the customer and you waive all defenses
and notice of those changes and will remain responsible for the payment and
obligations of this Agreement. We do not have to notify you if the customer
is
in default. If the customer defaults, you will immediately pay in accordance
with the default provision of the Agreement all sums due under the terms
of the
Agreement and will perform all the obligations of the Agreement. If it is
necessary for us to proceed legally to enforce this guaranty, you expressly
consent to the jurisdiction of the court set out in paragraph 13 and agree
to
pay all costs, including attorneys fees incurred in enforcement of this
guaranty. It is not necessary for us to proceed first against the customer
of
the Equipment before enforcing this guaranty. By signing this guaranty, you
authorize us to obtain credit bureau reports for credit and collection
purposes
X
Corp.
Only
Signature
Print
Name
Date
from
time
to time signed by you and us (such property and any upgrade replacements
and
additions referred to as “Equipment”)
for
business purposes. You agree to all of the terms and conditions contained
in
this Agreement and any supplement, which together are a complete statement
of
our Agreement regarding the listed equipment (“Agreement”)
and
supersedes any purchase order or outstanding invoice. This Agreement may
be
modified only by written agreement and not by course of performance. This
Agreement becomes valid upon execution by us and will begin on the rent
commencement date shown and will continue from the first day of the following
month for the number of consecutive months shown. You also agree to pay Lessor
interim rent. Interim rent shall be in an amount equal to 1/30th of the monthly
rental, multiplied by the number of days between the rent commencement date
and
the first payment due date. The term will be extended automatically for
successive 12 month terms unless you send us written notice you do not want
it
renewed at lease thirty (30) days before the end of any term. If any provision
of this Agreement is declared unenforceable in any jurisdiction, the other
provisions herein shall remain in full force and effect in that jurisdiction
and
all others. THE BASE RENTAL PAYMENT SHALL BE ADJUSTED PROPORTIONATELY UPWARD
OR
DOWNWARD TO COMPLY WITH THE TAX LAWS OF THE STATE IN WHICH THE EQUIPMENT
IS
LOCATED. Equipment located in various states is subject to sales tax laws
which
require that tax be paid up front. You authorize use to advance tax and increase
your monthly payment by an amount equal to the current tax percentage applied
to
the monthly rental shown above.
2.
RENT: Rent
will
be payable in installments, each in the amount of the basic lease payment
shown
plus any applicable sales tax, use tax, plus 1/12th of the amount estimated
by
use to be personal property tax on the Equipment for each year of this
Agreement. We will have the right to apply all sums, received from you, in
any
amounts due and owed to us under the terms of this Agreement. In the event
this
Agreement is not commenced, the security deposit will be retained by us to
compensate us for our documentation, processing and other expenses. If for
any
reason, your check is returned for nonpayment, a $20.00 bad check charge
will be
assessed.
3.
COMPUTER SOFTWARE: Not
withstanding any other terms and conditions of the Agreement, you agree that
as
to software only; a) We have not had, do not have, nor will have any title
to
such software, b) You have executed or will execute a separate software license
agreement and we are not a party to and have no responsibilities whatsoever
in
regards to such license agreement, c) You have selected such software and
as per
Agreement paragraph 5, WE MAKE NO WARRANTIES OF MERCHANTABILITY, DATA ACCURACY,
YEAR 2000 COMPLIANCE, SYSTEM INTEGRATION OR FITNESS FOR USE AND TAKE ABSOLUTELY
NO RESPONSIBILITY FOR THE FUNCTION OR DEFECTIVE NATURE OF SUCH
SOFTWARE.
4.
OWNERSHIP OF EQUIPMENT:
We are
the owner of the Equipment and have sole title to the Equipment (excluding
software). You agree to keep the equipment free and clear of all items and
claims.
5.
WARRANTY DISCLAIMER:
WE MAKE
NO WARRANTY, EXPRESS OR IMPLIED, THAT THE EQUIPMENT IS FIT FOR A PARTICULAR
PURPOSE OR THAT THE EQUIPMENT IS MERCHANTABLE, YOU AGREE THAT YOU HAVE SELECTED
THE SUPPLIER AND EACH ITEM OF EQUIPMENT BASED UPON YOUR OWN JUDGMENT AND
DISCLAIM ANY RELIANCE UPON ANY STATEMENTS OR REPRESENTATIONS MADE BY US OR
ANY
SUPPLIER. WE DO NOT TAKE RESPONSIBILITY FOR THE INSTALLATION OR PERFORMANCE
OF
THE EQUIPMENT. THE SUPPLIER IS NOT AN AGENT OF OURS AND NOTHING THE SUPPLIER
STATES CAN AFFECT YOUR OBLIGATION UNDER THE LEASE. WE HAVE NO RESPONSIBILITY
FOR
ANY MAINTENANCE OR SUPPOERT TO BE SUPPLIED BY SUPPLIER. YOU WILL CONTINUE
TO
MAKE ALL PAYMENTS UNDER THIS AGREEMENT REGARDLESS OF ANY CLAIM OR COMPLAINT
OF
NONPERFORMANCE AGAINST SUPPLIER.
6.
LOCATION OF EQUIPMENT:
You will
keep and use the Equipment only at your address shown above and you agree
not to
move it unless we agree to it. At the end of the Agreement’s
term,
you will return the Equipment to a location we specify at your expense, in
retail resalable condition, full working order, and in complete
repair.
7.
LOSS OR DAMAGE: You
are
responsible for the risk of loss or for any destruction of or damage to the
Equipment. No such loss or damage relieves you from the payment obligations
under this Agreement. You agree to promptly notify use in writing of any
loss or
damage and you will then pay to us the total of all unpaid lease payments
for
the full lease term plus the estimated fair market value of the Equipment
at the
end of the originally scheduled term, all discounted at six percent (6%)
per
year. Any proceeds of insurance will be paid to us and credited, at our option,
against any loss or damage.
8.
COLLATERAL PROTECTION AND INSURANCE: You
agree
to keep the equipment fully insured against loss with us as loss payee in
an
amount not less than the replacement cost until this Agreement is terminated.
You also agree to obtain a general public liability insurance policy from
anyone
who is acceptable to us and to include us as an insured on the policy. You
agree
to provide us certificates or other evidence of insurance acceptable to us,
before this Agreement begins or, we will enroll you in our property damage
coverage program and xxxx you a property damage surcharge as a result of
our
increased administrative costs and credit risk. As long as you are current
at
the time of the loss (excluding losses resulting from acts of god), the
replacement value of the equipment will be applied against any loss or damage
as
per paragraph 7. You must be current to benefit from this program. NOTHING
IN
THIS PARAGRAPH WILL RELIEVE YOU OF YOUR RESPONSIBILITY FOR LIABILITY INSURANCE
COVERAGE ON THIS EQUIPMENT.
9.
INDEMNITY: We
are
not responsible for any loss or injuries caused by the installation or use
of
the Equipment. You agree to hold us harmless and reimburse us for loss and
to
defend us against any claim for losses or injury caused by the
Equipment.
10.
TAXES AND FEES: You
agree
to pay when due all taxes (including personal property tax, fines and penalties)
and fees relating to this Agreement or the Equipment. If we pay any of the
above
for you, you agree to reimburse us and to pay us a processing fee for each
payment we make on your behalf. In addition, you also agree to pay us any
filing
fees prescribed by the Uniform Commercial Code or other law and reimburse
us for
all costs and expenses involved in documenting and servicing this transaction.
You further agree to pay us up to $100.00 on the date the first lease payment
is
due to cover the expense of originating the Agreement.
11.
ASSIGNMENT: YOU
HAVE
NO RIGHT TO SELL, TRANSFER, ASSIGN or SUBLEASE THE EQUIPMENT OR THIS AGREEMENT.
You understand that we, without prior notice, have the right to assign this
Agreement to a financing source for financing purposes without your consent
to
such assignment. You understand that our assignee will have the same rights
and
benefits but they do not have to perform any of our obligations. You agree
that
the rights of assignee will not be subject to any claims, defenses, or setoffs
that you may have against us.
12.
DEFAULT AND REMEDIES:
If you
do not pay any lease payment or other sum due to us or other party when due
or
if you break any of your promises in the Agreement or any other Agreement
with
us, you will be in default. If any part of a payment is late, you agree to
pay a
late charge of 15% of the payment which is late or if less, the maximum charge
allowed by law,. If you are over in default, we may retain your security
deposit
and at our option, we can terminate or cancel this Agreement and require
that
your pay (1) the unpaid balance of this Agreement (discounted at 6%); (2)
the
amount of any purchase option and if none is specified, 20% of the original
equipment cost which represents our anticipated residual value in the equipment;
(3) and return the equipment to us to a location designated by us. We may
recover interest on any unpaid balance at the rate of 8% per annum. We may
also
use any of the remedies available to us under Article 2A of the Uniform
Commercial Code as enacted in the Suite of Minnesota or any other law. If
we
refer this Agreement to an attorney for collection, you agree to pay our
reasonable attorney’s
fees
and actual court costs. If we have to take possession of the equipment, you
agree to pay the cost of repossession. The net proceeds of the sale of any
repossessed Equipment will be credited against what you owe us under this
Agreement. YOU AGREE THAT WE WILL NOT BE RESPONSIBLE TO PAY YOU ANY
CONSEQUENTIAL OR INCIDENTAL DAMAGES FOR ANY DEFAULT BY US UNDER THIS AGREEMENT.
You agree that any delay or failure to enforce our rights under this Agreement
does not prevent us from enforcing any rights at a later time. It is further
agreed that your rights and remedies are governed exclusively by this Agreement
and you waive lessee’s
rights
under Article 2A (508-522) of the UCC.
13.
UCC FILINGS: You
grant
us a security interest in the equipment if this agreement is deemed a secured
transaction and you authorize us to record a UCC-1 financing statement or
similar instrument, and appoint us your attorney-in-fact to execute and deliver
such instrument, in order to show our interest in the Equipment.
14.
SECURITY DEPOSIT: The
security deposit is payable upon execution and non interest bearing and is
to
secure your performance under this Agreement. Any security deposit may be
applied by us to satisfy any amount owed by you, in which event you will
promptly restore the security deposit to its full amount as set forth above.
If
all conditions herein are fully complied with and provided you have not ever
been in default of this Agreement per paragraph 12, the security deposit
will be
refunded to you after the return of the equipment in accordance with paragraph
6.
15.
LAW: This
lease shall be deemed fully executed and performed in the Sate of Minnesota
or
in the home state of whoever holds the Lessor’s
interest as it may be assigned from time to time per paragraph 11. This lease
shall be governed by and construed in accordance with the laws of the State
of
Minnesota or the laws of the home state of Lessor’s
assignee. You expressly and unconditionally consent to the jurisdiction and
venue of any court in the State of Minnesota and waive the right to trial
by
jury for any claim or action arising out of or relating to this Agreement
or the
Equipment. Furthermore, you waive the defense of Forum Non
Conveniens.
16.
LESSEE GUARANTY:
You
agree to submit the original master lease documents with the security deposit
to
Lessor or its assignee via overnight courier the same day of the facsimile
transmission of the lease documents. Should we fail to receive those originals,
you agree to be bound by the faxed copy of this agreement with appropriate
signatures on the document. Lessee waives the right to challenge in court
the
authenticity of a faxed copy of this agreement and the faxed copy shall be
considered the original and shall be the binding agreement for the purposes
of
any enforcement action under paragraph 12.
/s/
Xxxxxxx Xxxxxx
CFO
Signature
Title
ADDENDUM
TO LEASE ___________________
BETWEEN
IsoRay
Medical, Inc.
AS
LESSEE
AND
Nationwide
Funding, LLC
DATED
4/03/05
The
parties have entered into the above-referenced Lease for the lease of equipment
more fully described in said Agreement. In recognition of the inaccuracy
of the
terms of such Agreement, the parties hereby wish to amend said Lease Agreement
as set forth below:
The
Lease payments shall be changed from $1,331.71 (plus applicable taxes) to
$2,475.38 (includes sales tax)
The
Security Deposit shall be changed from $2,663.42 to
$4,950.76
By
signing this addendum, Lessee acknowledges the above changes to the Lease
agreement and authorizes Lessor to make such changes.
LESSEE: LESSOR:
IsoRay
Medical, Inc. Nationwide
Funding, LLC
000
Xxxxx
Xxxxxx, Xxxxx 000 5520
Trabuco Road
Richland,
WA 99354 Xxxxxx,
XX 00000
BY:
/s/
Xxxxxxx Xxxxxx BY:
/s/
Xxxx Xxxx
NAME:
Xxxxxxx Xxxxxx NAME:
Even
Lang
TITLE:
CFO
TITLE:
President
DATE:
4/03/05 DATE:
04-14-05
“Customer
waives the right to challenge in court the authenticity of a faxed copy of
the
Addendum and the faxed copy shall be considered the original and shall be
the
binding agreement for the purposes of any enforcement action”
DELIVERY
GUARANTEE
Addendum
to Lease # 490280
dated
April
3rd,
2005
between
Nationwide
Funding, LLC
as
Lessor and, IsoRay
Medical, Inc.
as
Lessee.
Lessee
understands and agrees that in the event the Lessee is not satisfied with
the
working condition of the equipment that Lessee shall only look to persons
other
than Lessor or its assigns such as the manufacturer, vendor, installer, or
carrier, and shall not assert against Lessor or its assigns any claim or
defense
that Lessee may have with reference to the Equipment, its installation, or
delivery. Lessee understands that despite the fact that certain items of
Equipment to be leased have not been delivered or installed, this Addendum
authorized Lessor to start the Lease and Leasee’s
duty to
make monthly payments will commence immediately. Further, Lessee authorizes
Lessor to pay:
Premier
Technology, Inc.
is the
vendor for the equipment and the Lessee understands that payment shall begin
on
the same date that the Lessee executes this agreement and shall be continuous
thereafter per the terms of the Lease.
$
37,500.00 Will
be
paid to Premier
Technology, Inc
(Vendor)
upon execution of this agreement.
$
37,500.00
Will be
paid to Premier
Technology, Inc
(Vendor)
upon final verification by Lessee after completion of delivery and
installation.
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Nationwide
Funding, LLC
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IsoRay
Medical, Inc.
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Lessor
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Lessee
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/s/
Xxxx Xxxx
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/s/
Xxxxxxx Xxxxxx
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Signature
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Signature
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Xxxx
Xxxx, President
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Xxxxxxx
Xxxxxx, CFO
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Name
& Title
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Name
& Title
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04-14-05
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4/12/05
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Date
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Date
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SCHEDULE
“A”
Vendor: Premier
Technology, Inc.
000
Xxxx Xxxxxx Xxxx
Xxxxxxxxx,
XX 00000
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Item
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Quantity
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Description
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1
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1
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SP-012
Glovebox Large Shielding Window Option (3 each 16”
x 24”)
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Initials
__________ Page
1 of
2
This
Schedule is hereby verified as correct by the undersigned Lessee and constitutes
all the equipment covered by the referenced lease.
LESSEE:
IsoRay
Medical, Inc.
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/s/
Xxxxxxx Xxxxxx
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CFO
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By:
Xxxxxxx Xxxxxx
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Title:
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Date:4/6/05
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Exhibit
attached to and made part of Lease NO. 490580
dated
the
14
day
of
April
2005
between
Lessee and Nationwide Funding, LLC.
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/s/
Xxxx Xxxx
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President
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By:
Xxxx Xxxx
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Title:
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Initials
__________ Page
2 of
2
DISCLAIMER
OF OWNERSHIP
The
undersigned IsoRay
Medical, Inc. (“Lessee”)
proposes to be the Lessee of certain equipment from Nationwide Funding, LLC
(the
“Lessor”)
pursuant to an Equipment Lease between Lessor and Lessee bearing Lease #
____________ signed by the Lessee on 4/6/05
(the
“Lease”).
The
equipment covered by the Lease is hereinafter referred to as the “Equipment”.
The
Equipment will be purchased by Lessor from Premier
Technology, Inc
(the
“Vendor”).
Lessee
has made a deposit or down payment to the Vendor as a part of the original
purchase order, and it is contemplated that, upon Lessor’s
receipt
of all necessary documentation and satisfaction of all conditions to Lessor
entering into the Lease, Lessor shall pay the Vendor the remaining balance
of
the purchase price and receive a xxxx of sale from the Vendor covering a
100%
interest in the Equipment.
The
Lessee, being satisfied that its payments under the lease are based only
upon
Lessor’s
payment
to the Vendor and not Lessee’s
down
payment, hereby consents to the Vendor transferring the entire ownership
in the
Equipment to Lessor, and effective on the actual transfer of the Equipment
to
lessor, disclaims any ownership interest or rights in the Equipment except
those
the Lessee has by virtue of being the Lessee under the Lease.
Lessee:
IsoRay
Medical, Inc.
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By:
/s/
Xxxxxxx Xxxxxx
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Date:
4/6/05
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Xxxxxxx
Xxxxxx, CFO
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LESSEE
ACKNOWLEDGEMENT
Lease
Agreement #
490280
made
this 3rd
day of
April,
2005,
between
Nationwide
Funding, LLC
(“Lessor”)
and
IsoRay Medical, Inc. (Lessee) for SP-012
Glovebox Large Shielding Window Option (3 each 16”
x
24”),
located
at 000
Xxxxx Xxxxxx, Xxxxxxxx, XX 00000.
Lessee
acknowledges that Lessor holds all right, title and interest in all equipment
listed on the above referenced lease. U.S. Bancorp Manifest Funding Services
will be assigned the right to receive payments only and a security interest
in
the equipment during the assignment period of the lease.
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Lessee
Name: Lessor Name:
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IsoRay
Medical, Inc.
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Nationwide
Funding, LLC
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By:
/s/
Xxxxxxx Xxxxxx
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By:
/s/
Xxxx Xxxx
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Title:
CFO
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Title:
President
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Date:
4/3/05
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Date:
4/14/05
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