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EXHIBIT 10.36
HOSIE, WES, McLAUGHLIN & SACKS
ATTORNEYS AT LAW
FACSIMILE ONE SANSOME STREET ALASKA OFFICE
5) 781-2525 FOURTEENTH FLOOR 510 L STREET. SUITE 500
SAN FRANCISCO, CALIFORNIA 94104 ANCHORAGE, ALASKA 99501
(415) 781-3200 (907) 279-2114
September 24, 1993
VIA CALIFORNIA OVERNIGHT
Mr. Paul Siegel
Chief Financial Officer
Calypte Biomedical Corporation
1440 Fourth Street
Berkeley, California 94710
Re: MMC/GATX PARTNERSHIP NO. I - CALYPTE BIOMEDICAL CORPORATION
Dear Paul:
Enclosed for your review, signature and return to me are the following
closing documents in connection with the upcoming Schedules Nos. 1, 2 and 3
under the Equipment Lease:
1. UCC-1 Sale-Leaseback Notice.
2. UCC-1 Precautionary Financing Statement.
3. UCC-1 Precautionary Fixture Filing.
Please return the signed UCCs to me as soon as possible.
Also enclosed for your records are fully-executed copies of the Master
Equipment Lease Agreement and the Security Deposit Pledge Agreement. I will
send you execution copies of Schedules Nos. 1, 2 and 3 and the related Bill of
Sale in the next few days.
Please call me if you have any questions or comments.
Sincerely,
/s/ ROBERT F. MCLAUGHLIN
Robert F. McLaughlin
RFM:ogw
Enclosures.
cc: Thomas Klein, Esq. - w/enc. -- UCCs only (via California Overnight)
Annette Bishop - w/o enc.
David G. Mayer, Esq. - w/o enc.
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MASTER EQUIPMENT LEASE AGREEMENT
Agreement No. ___________ Dated as of August 20, 1993
between
MMC/GATX PARTNERSHIP NO. 1,
Four Embarcadero Center,
San Francisco, CA 94111
as Lessor
and
CALYPTE BIOMEDICAL CORPORATION,
a California corporation
1440 Fourth Street
Berkeley, CA. 94710
as Lessee
LESSOR'S COMMITMENT: $1,150,000
Initial Rent Factor: 12 months at 1.5% Initial Lease Term: 42 months
followed by 30
months at 3.5%
Treasury Base Rate: 4.68% Treasury Constant, Maturity: 42 months
Initial Implicit Rate: 10.91% Minimum Implicit Rate: 10.00%
Minimum Funding Amount: $75,000 Maximum No. of Fundings: One per month
Minimum Renewal Percentage: 1.3% Minimum Purchase Option Percentage: 10%
Commitment Termination Date: June 30, 1994
Eligible Equipment: Scientific laboratory and test equipment;
manufacturing equipment; and up to $200,000
of tenant improvements.
The terms and information set forth on this cover page are a part of
the MASTER EQUIPMENT LEASE AGREEMENT, dated as of the date first written above
(this "Lease"), entered into by and between MMC/GATX PARTNERSHIP NO. I
("Lessor") and the Lessee set forth above, the terms and conditions of which
are as follows:
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LESSOR'S OBLIGATIONS UNDER THIS LEASE AND EACH SCHEDULE ARE SUBJECT TO
THE PRIOR SATISFACTION OF THE CONDITIONS SET FORTH ON RIDER I HERETO.
1. DEFINITIONS: Unless otherwise defined in this Lease (which
term shall include the cover page, any Rider, any Exhibit or any Schedule
hereto), capitalized terms shall have the following meanings:
"Commitment Termination Date" means the date set forth opposite such
term on the cover page of this Lease, or such earlier date on which Lessor
terminates its commitment to fund pursuant to the terms of this Lease.
"Delivery Date" means, with respect to any Schedule, the date first set
forth on such Schedule.
"Eligible Equipment" means Equipment of the types listed following
such term on the cover page of this Lease to the extent acceptable to Lessor.
"Environmental Law" means the Resource Conservation and Recovery Act
of 1987, the Comprehensive Environmental Response, Compensation and Liability
Act, and any other Federal, state or local statute, law, ordinance, code, rule,
regulation, order or decree (in each case having the force of law) regulating
or imposing liability or standards of conduct concerning, any Hazardous
Materials or other hazardous, toxic or dangerous waste, constituent, or other
substance, whether solid, liquid or gas, as now or at any time hereafter in
effect.
"Equipment" means all equipment, fixtures and personal property listed
in any Schedule together with all replacement parts, additions, accessions and
accessories to such equipment, fixtures and personal property.
"Event of Default" shall have the meaning set forth in Section 12
hereof.
"Hazardous Materials" means any hazardous substance, pollutant or
contaminant defined as such in any Environmental Law.
"Implicit Rate" means, with respect to a Schedule, an implicit
interest rate used in calculating the Rent Factor applicable to such Schedule,
calculated as set forth in Section 3(b) of this Lease.
"Initial Implicit Rate" means the implicit interest rate specified on
the cover page of this Lease.
"Initial Lease Term" means the period of months set forth opposite
such term on the cover page of this Lease.
"Initial Rent Factor" means the Rent Factor set forth on the cover
page of this Lease calculated using the Initial Implicit Rate.
"Interim Rental Payment" shall have the meaning set forth Section 3(a)
of this Lease.
"Lessor's Commitment" means the maximum amount that Lessor may be
obligated to fund under the Lease, which amount is set forth opposite such term
on the cover page of this Lease.
"Lessor's Cost" with respect to a Unit of Equipment means the total
cost to Lessor of purchasing such Unit of Equipment, as indicated on the
applicable Schedule.
"Maximum Number of Fundings" means the number of fundings under this
Lease specified opposite such term on the cover page hereof.
"Minimum Funding Amount" means the amount set forth opposite such term
on the cover page of this Lease.
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"Minimum Implicit Rate" means the interest rate set forth opposite
such term on the cover page to this Lease.
"Minimum Purchase Option Percentage" means the percentage of Lessor's
Cost set forth opposite such term on the cover page of this Lease.
"Minimum Renewal Percentage" means the percentage set forth opposite
such term on the cover page of this Lease.
"Rent Commencement Date" means the date, with respect to any Schedule,
set forth in Section 3(a) of such Schedule, which shall be the first day of
the calendar quarter immediately following the Delivery Date for such Schedule.
"Rent Factor" means, with respect to a Schedule, the rent factor
calculated using the Implicit Rate applicable on the Delivery Date of such
Schedule.
"Rental Payment" means, for any Schedule, the monthly rent payment for
the Units identified in such Schedule.
"Schedule" or "Schedule No. " means a schedule in the form of Exhibit
E to this Lease identifying this Lease and incorporating this Lease by
reference, which is executed by both parties hereto.
"Stipulated Loss Value" shall have the meaning set forth in Section
11(e).
"Term" means the Initial Lease Term, together with any renewal or
extension thereof.
"Treasury Base Rate" means the interest rate set forth opposite such
term on the cover page of this Lease.
"Treasury Constant Maturity" means the period of months set forth
opposite such term on the cover page of this Lease.
"Unit" means an item of Equipment.
2. LEASE: Lessor agrees to lease to Lessee and Lessee agrees to
lease from Lessor the Equipment described in each Schedule on the terms and
subject to the conditions specified herein and therein. Lessor's obligation to
fund Schedules under this Lease shall terminate on the Commitment Termination
Date. Lessor may, in its sole discretion, terminate its commitment herein to
fund the Lessor's Commitment or any unfunded portion thereof at any time if:
(a) there is any material adverse change to the general affairs, management,
results of operations, condition (financial or otherwise) or prospects of
Lessee, whether or not arising from transactions in the ordinary course of
business, (b) there is any material adverse deviation by Lessee from the
business plan of Lessee presented to and not disapproved in writing by Lessor,
since the date first written on the cover page of this Lease, (c) any Event of
Default exists, or (d) if any term or condition in any Schedule is not
satisfied by the Delivery Date of such Schedule. This Lease shall constitute a
"Finance Lease" under Division 10 of the California Uniform Commercial Code
("UCC"); provided, however, that the characterization of this Lease as a
"Finance Lease" is for purposes of Division 10 of the UCC only, and shall not
affect the accounting treatment of this Lease. This Lease, and Lessee's
obligation to pay all rent and other sums hereunder, shall be absolute and
unconditional, and shall not be subject to, and Lessee hereby waives any right
of or to, abatement, reduction, set-off, defense or counterclaim. Lessee
waives any and all rights and remedies conferred upon Lessee by UCC Sections
10508 through 10522, including (without limitation) Lessee's rights to (i)
cancel or repudiate this Lease, (ii) reject or revoke acceptance of the leased
property, (iii) recover damages from Lessor for breach of warranty or for any
other reason, (iv) claim a security interest in any rejected property in
Lessee's possession or control, (v) deduct from Rental Payments all or any part
of any claimed damages resulting from Lessor's default under this
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Lease, (vi) accept partial delivery of the Equipment, (vii) "cover" by making
any purchase or lease of other property in substitution for property due from
Lessor, (viii) recover from the Lessor any general, special, incidental or
consequential damages, for any reason whatsoever, and (ix) seek specific
performance, replevin or the like for any of the Equipment. Lessee
acknowledges that, at the time of each Schedule, it will have received and
approved the terms of the agreements with the vendors under which Lessor will,
subject to the terms and conditions of this Lease, purchase the Units covered
by such Schedule. The Units shall be leased for commercial purposes only, and
not for consumer, personal, home or family purposes. This Lease describes the
terms of, and is intended by the parties hereto to be, a true lease; provided,
however, that the parties acknowledge that the terms and conditions of the
Lease may, alternatively, create a secured financing or lease for security. If
this Lease as supplemented by any Schedule constitutes a security agreement or
lease for security, the Lessee hereby grants a security interest to Lessor in
all of Lessee's right, title and interest in the Units described in Annex A to
such Schedule and the proceeds thereof, to secure all of Lessee's obligations
under this Lease and such Schedule.
3. TERM AND RENTALS: THIS LEASE SHALL BE EFFECTIVE UPON EXECUTION
AND DELIVERY HEREOF by Lessee and Lessor. (a) The Initial Lease Term for each
Schedule shall commence upon the Rent Commencement Date set forth in such
Schedule. For the Initial Lease Term of such Schedule, Lessee agrees to pay
Lessor aggregate rentals equal to the number of months in the Initial Lease
Term of such Schedule multiplied by the amount of the Rental Payment specified
in such Schedule. In addition, for the period from the Delivery Date of each
Schedule until such Schedule's Rent Commencement Date, Lessee shall pay an
interim rental ("Interim Rental Payment") equal to the product of (i) the total
rental for the Initial Lease Term of such Schedule divided by 1,260 [42 x 30]
and (ii) the actual number of days between the Delivery Date and the Rent
Commencement Date, including the Delivery Date but excluding the Rent
Commencement Date. Lessor will make reasonable efforts to se nd Lessee
invoices for Rental Payments, but the failure to do so or the incorrectness of
any invoice will not relieve Lessee of its obligation to pay all amounts,
including Rental Payments, due under this Lease. The Interim Rental Payment
for each Schedule is due on the Delivery Date for such Schedule and the
remaining Rental Payments are due commencing on the Rent Commencement Date and
thereafter on the same date of each succeeding month of the Term, or as
specified in the applicable Schedule. A late charge on any overdue payments
shall accrue at the rate of 1.5% per month on the overdue amount, or the
highest lawful rate, whichever is less. (b) The Rent Factor will be calculated
for each Schedule based on a basis point for basis point adjustment (if any) to
the Initial Implicit Rate equal to the change from the Treasury Base Rate in
the U.S. Treasury note rate for notes of a term equal to the Treasury Constant
Maturity as quoted three business days prior to the Delivery Date for such
Schedule in The Wall Street Journal. The Implicit Rate used for calculating
the Rent Factor for any Schedule shall not be less than the Minimum Implicit
Rate. (c) It is not the intent of the parties to create rent or other payment
obligations of Lessee which will be considered usurious under applicable law.
However, if any such payment shall be found to be usurious by a court of
competent jurisdiction, then Rental Payments or such other amounts shall
automatically be reduced to the highest rate or amounts permitted by applicable
law and the usurious portion of the Rental Payments or such other amounts shall
be applied to the Lessee's remaining obligations under the Lease in a manner
reasonably determined by Lessor. If Lessee retains possession of any Unit
after the expiration or termination of this
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Lease, Rental Payments shall continue to be paid with respect to such Unit at
the rate set forth in Section 3(a) of the Schedule relating to such Unit until
all obligations of Lessee under this Lease relating to such Unit, including,
without limitation, Rental Payments and payments due under Section 4 of this
Lease, have been satisfied. This Lease may be terminated only as expressly
provided herein.
4. LESSEE'S PURCHASE OF TENANT IMPROVEMENTS; OPTIONS AT END OF
INITIAL LEASE TERM FOR NON-TENANT IMPROVEMENTS:
4A. Tenant Improvements. At the expiration of the Initial Lease
Term of each Schedule covering tenant improvements, Lessee shall purchase all
of the Units that are tenant improvements under such Schedule for a purchase
price equal to fifteen percent (15%) of Lessor's Cost of all such Units, plus
any applicable sales or other transfer tax.
4B. Non-Tenant Improvements.
(a) Provided that the Lease has not been terminated and that no
Event of Default or event which, with notice or lapse of time or both, would
become an Event of Default shall have occurred and be continuing, Lessee shall
elect one of the following options in clauses (i) or (ii) below:
(i) Lessee's Option to Renew: At the expiration of the
Initial Lease Term of the first Schedule covering Units other than
tenant improvements, Lessee may elect to renew the Lease with respect
to all, but not less than all, of such Units under all Schedules to
the Lease at their respective expiration dates for not less than
twelve (12) months nor more than thirty-six (36) months for a rent
equal to the "Fair Rental Value" (as defined in Section 4B(b) below)
of such Units for such additional period, but in no event less than
the Minimum Renewal Percentage of Lessor's Cost of such Units per
month, which rent shall be paid monthly in advance. At the end of the
renewal term, Lessee must purchase all of such Units for a purchase
price equal to the Fair Market Value (as defined in Section 4B(b)
below) plus any applicable sales or other transfer tax.
(ii) Lessee's Option to Purchase: At the expiration of the
Initial Lease Term of the first Schedule covering Units other than
tenant improvements, Lessee may elect to purchase all, but not less
than all, of such Units under all Schedules to the Lease at their
respective expiration dates for a purchase price equal to the "Fair
Market Value" (as defined in Section 4(b) below) thereof as of the end
of the Initial Lease Term of the first Schedule covering Units other
than tenant improvements, but in no event less than the Minimum
Purchase Option Percentage of Lessor's Cost of all such Units nor
greater than twenty-five percent (25%) of Lessor's Cost of all such
Units, plus any applicable sales or other transfer tax.
(iii) If neither of the foregoing options in clauses (i) or
(ii) of this Section 4B(a) is duly exercised by Lessee, this Lease
shall be renewed at the rental in effect immediately prior to the
renewal with respect to all Units other than tenant improvements
covered by the applicable Schedule from the expiration date of the
Initial Lease Term of such Schedule on a month-to-month basis. Lessee
may terminate any such extended term on 90 days'
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notice to Lessor and shall along with such notice elect one of the
options in clauses (i) or (ii) above.
Either of the foregoing options in clauses (i) or (ii) shall be
exercised by written notice delivered to Lessor not more than 180 days and not
less than 120 days prior to the expiration of the Initial Lease Tenn of the
Units which are subject to the first Schedule covering Units other than tenant
improvements.
(b) Fair Market Value or Fair Rental Value, as the case may be,
shall be determined on the basis of and shall be equal in amount to the value
which would obtain in an arm's-length transaction between an informed and
willing buyer-user or lessee-user (other than a used equipment dealer) and an
informed and willing seller or lessor under no compulsion to sell or lease, on
the assumptions that: such Units (i) are being sold "in place and in use"; (ii)
are free and clear of all liens and encumbrances; and (iii) are in the
condition required upon the return of the Units under Section 9 of this Lease.
In such determination, costs of removal from the location of current use shall
not be a deduction from such value(s).
(c) If the Lessor and Lessee have not agreed upon a determination
of the Fair Market Value or Fair Rental Value of any Unit within 30 days after
one of the parties has requested such determination, that determination shall
be made by a certified independent appraiser approved by both Lessor and
Lessee, such approvals not to be unreasonably withheld. The appraiser shall be
furnished with a letter of instruction concerning the preparation of the
appraisal, together with a copy of the Lease and Schedule and, to the extent
available, related purchase orders and/or invoices. The appraiser shall be
instructed to make such determination within 30 days following appointment.
The determination made by the appraiser shall be final and binding on both
Lessor and Lessee. The fees and expenses of any appraisal shall be paid by the
Lessee, if such appraisal is needed for the Lessor's exercise of its remedies
under Sections 12 and 13 hereof, and equally by the Lessor and Lessee
otherwise.
4C. General. The purchase of the Units by Lessee pursuant to this
Section 4 shall be "AS IS, WHERE IS", without recourse to or any warranty by
Lessor, other than a warranty that the Units are free and clear of liens and
encumbrances resulting from acts of Lessor.
5. WARRANTIES; INDEMNITY:
(a) Lessee acknowledges that it has made the selection of each
Unit based upon its own judgment. LESSOR MAKES NO EXPRESS OR IMPLIED WARRANTIES
INCLUDING, WITHOUT LIMITATION, THOSE OF DESCRIPTION, INFRINGEMENT,
MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE OR PURPOSE WITH RESPECT TO THE
EQUIPMENT AND HEREBY DISCLAIMS THE SAME. Lessor shall have no liability for
any damages, whether direct or consequential, incurred by Lessee as a result of
any defect or malfunction of a Unit. Lessee agrees to look solely to the
manufacturer or vendor of any defective or malfunctioning Unit for the repair
or replacement of such Unit and to continue to make all Rental Payments with
respect to such Unit in spite of such defect or malfunction. Lessor hereby
assigns to Lessee, for and during the Term, any warranty, guaranty or indemnity
of the manufacturer or vendor issued to Lessor with respect to any Unit.
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(b) Lessee shall indemnify, reimburse and hold Lessor (including,
without limitation, each of its partners) and each of their respective
successors, assigns, officers, directors, shareholders, servants, agents and
employees harmless from and against all liabilities, losses, damages, actions,
suits, demands, claims of any kind and nature (including, without limitation,
claims relating to environmental discharge, cleanup or compliance), and all
costs and expenses whatsoever to the extent they may be incurred or suffered by
such indemnified party in connection therewith (including, without limitation
reasonable attorneys' fees and expenses), fines, penalties (and other charges
of applicable governmental authorities), licensing fees relating to any Unit,
damage to or loss of use of property (including, without limitation,
consequential or special damages to third parties or damages to Lessee's
property), or bodily injury to or death of any person (including, without
limitation, any agent or employee of Lessee) (each a "Claim"), directly or
indirectly relating to or arising out of the acquisition, use, lease or
sublease, ownership, operation, possession, control, storage or condition of
any Unit (regardless of whether such Unit is at the time in the possession of
Lessee), the falsity of any non-tax representation or warranty of Lessee or
Lessee's failure to comply with the terms of the Lease during the Term. The
foregoing indemnity shall cover, without limitation, (i) any Claim in
connection with a design or other defect (latent or patent) in any Unit, (ii)
any Claim for infringement of any patent, copyright, trademark or other
intellectual property right, (iii) any Claim resulting from the presence on or
under or the escape, seepage, leakage, spillage, discharge, emission or release
from any Unit of any Hazardous Materials, including, without limitation, any
Claims asserted or arising under any Environmental Law, or (iv) any Claim for
negligence or strict or absolute liability in tort; provided, however, that
Lessee shall not indemnify Lessor for any liability incurred by Lessor as a
direct and sole result of Lessor's gross negligence or willful misconduct.
Such indemnities shall continue in full force and effect, notwithstanding the
expiration or termination of this Lease. Upon Lessor's written demand, Lessee
shall assume and diligently conduct, at its sole cost and expense, the entire
defense of Lessor and its agents, employees, successors and assigns against any
indemnified Claim described in this Section 5. Lessee shall not settle or
compromise any Claim against or involving Lessor without first obtaining
Lessor's written consent thereto, which consent shall not be unreasonably
withheld.
6. TITLE, LOCATION AND RETURN: Lessor and Lessee hereby confirm
their intent that the Equipment remain and be deemed personal property and that
title thereto shall remain in Lessor. If requested by Lessor, Lessee will
affix plates or markings on the Equipment indicating the interests of Lessor.
Lessee may not remove the Equipment from its place of installation without
Lessor's prior written consent, which consent shall not be unreasonably
withheld. Lessor shall have the right to inspect the Equipment during regular
business hours, with reasonable notice, and in compliance with Lessee's
reasonable security procedures. If for any reason the Equipment is to be
returned to Lessor on Lessor's demand hereunder, Lessee at its own risk and
expense, will cause the Equipment to be delivered promptly to Lessor free of
all Hazardous Materials and in the same condition as when delivered hereunder,
ordinary wear and tear excepted, to such point in the United States as Lessor
may designate and in such a manner as is consistent with the manufacturer's
recommendations, if any, for transportation and packaging of such Equipment.
All charges to cover Equipment transportation, deinstallation, storage until
returned, packing, and handling and all other costs associated with a return of
the Equipment to the location designated by Lessor shall be paid by Lessee.
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7. SUBLEASE, ASSIGNMENT: Lessee acknowledges and agrees that
Lessor may, subject to the terms of this Lease, sell, assign, grant a security
interest in, or otherwise transfer all or any part of its rights, title and
interest in this Lease and the Equipment. Upon Lessor's written notice, Lessee
shall, if requested, pay directly to such assignee without abatement, deduction
or set-off all amounts which become due hereunder. Lessee waives and agrees it
will not assert against such assignee any counterclaim or set-off in any action
for rent under the Lease. Such assignee shall have and be entitled to exercise
any and all rights and remedies of Lessor hereunder, and all references herein
to Lessor shall include Lessor's assignee. Lessee acknowledges that such a
sale, assignment, grant or transfer would neither materially change Lessee's
duties nor materially increase the burdens or risks imposed on the Lessee under
this Lease. LESSEE MAY NOT, WITHOUT LESSOR'S PRIOR WRITTEN CONSENT, (i)
SUBLEASE, TRANSFER, DISPOSE OF OR ASSIGN ITS RIGHTS IN RESPECT OF ANY UNIT OR
ITS OBLIGATIONS UNDER THIS LEASE OR (ii) ASSIGN, GRANT A SECURITY INTEREST IN,
OR OTHERWISE TRANSFER ALL OR ANY PART OF ITS RIGHTS, TITLE AND INTEREST IN AND
TO THIS LEASE OR THE EQUIPMENT.
8. TAXES: Lessee agrees to pay if and when due, in addition to
other amounts due hereunder and under each Schedule, all fees and assessments,
and all sales, use, property, excise and other taxes and charges (including all
interest and penalties) (collectively "Taxes"), now or hereafter imposed by any
governmental body or agency upon any of the Equipment or upon the purchase,
ownership, possession, leasing, operation, use, rentals or other payments, or
disposition hereunder whether payable by Lessor or Lessee (exclusive of taxes
on or measured by Lessor's net income). Lessee agrees to prepare and file
promptly with the appropriate offices any and all tax and similar returns
required to be filed with respect thereto, or, if requested by Lessor, to
notify Lessor of such requirements and furnish Lessor with all information
required by Lessor so that it may effect such filing, at Lessee's expense. Any
Taxes paid by or imposed on, Lessor on behalf of Lessee shall become
immediately due and payable on Lessor's demand. Lessor, as owner, shall be
entitled to any and all depreciation and modified cost recovery deductions
provided under the Internal Revenue Code of 1986, as amended from time to time
and any other such tax benefits which may now or hereafter be available to an
owner of such Equipment (collectively, "Tax Benefits"). If as a result of (i)
the inaccuracy or breach of any of Lessee's representations,, warranties and
covenants herein or in any Schedule, or (ii) the acts or failure to act of
Lessee or any person claiming an interest in the Equipment through the Lessee
(other than a casualty or other event described in Section 11 with respect to
which Stipulated Loss Value shall have been paid by Lessee), Lessor or any of
its assigns shall lose, or shall not, in its reasonable opinion, have the right
to claim, or there shall be disallowed, deferred or recaptured, any portion of
the Tax Benefits with respect to a Unit (a "Loss of Tax Benefits") or there
shall be included in Lessor's gross income any amounts other than Rental
Payments in respect of the purchase price of any Unit (an "Inclusion"), then,
on and after the next succeeding Rent Payment date after written notice to
Lessee by Lessor, Lessee agrees as follows: The rent for the Equipment shall,
on the Rent Payment date next succeeding Lessor's written notice to Lessee of
Lessor's payment of any tax payment attributable to such Inclusion or of a Loss
of Tax Benefits, be increased to such amount or amounts as shall, by the end of
the original term of the last Schedule to this Lease, in the reasonable opinion
of Lessor, after deduction of all fees, taxes, or other charges required to be
paid by Lessor in respect of the receipt of all amounts payable by Lessee to
Lessor under
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this Section 8 under the laws of any federal, state, or local government or
taxing authority in the United States, cause Lessor's after-tax yield and cash
flow in respect of the Equipment to equal those which would have been realized
by Lessor if Lessor had not incurred such a Loss of Tax Benefits or had such an
Inclusion. If any claim or contest regarding any tax indemnity covered by this
Section 8 shall arise, such claim or contest shall be addressed or conducted,
at Lessee's expense, in the manner reasonably specified by Lessor.
9. USE; MAINTENANCE: (a) Lessee, at its expense, shall make all
necessary site preparations and cause the Equipment to be operated in
accordance with any applicable manufacturer's manuals or instructions. So long
as no Event of Default has occurred and is continuing, Lessee shall have the
right to quietly possess and use the Equipment as provided herein without
interference by Lessor. (b) Lessee, at its expense, shall maintain the
Equipment in good condition, reasonable wear and tear excepted, and will comply
with all laws, ordinances and regulations to which the use and operation of the
Equipment may be or become subject. Such obligation shall extend to repair and
replacement of any partial loss or damage to the Equipment, regardless of the
cause. If maintenance is mandated by the manufacturer, Lessee shall obtain and
keep in effect at all times during the Term maintenance service contracts with
suppliers approved by Lessor, such approval not to be unreasonably withheld.
All parts furnished in connection with such maintenance or repair shall
immediately become part of the Equipment. All such maintenance, repair and
replacement services shall be paid for and discharged by Lessee when due with
the result that no lien will attach to the Equipment. Only qualified personnel
of Lessee shall operate the Equipment. The Equipment shall be used only for
the purposes for which it was designed.
10. INSURANCE: (a) Lessee shall obtain and maintain for the Term,
at its own expense, (i) "all risk" insurance against loss or damage to the
Equipment, (ii) commercial general liability insurance (including contractual
liability, products liability and completed operations coverages) reasonably
satisfactory to Lessor, and (iii) such other insurance against such other risks
of loss and with such terms, as shall in each case be reasonably satisfactory
to or reasonably required by Lessor (as to carriers, amounts and otherwise).
(b) The amount of the "all risk" insurance shall be the greater of the
replacement value of the Equipment (as new) or the "Stipulated Loss Value"
specified in the applicable Schedules, which amount shall be determined to
Lessor's reasonable satisfaction as of each anniversary date of this Lease with
the amount so determined being put into effect on the next succeeding renewal
or inception date of such insurance. (c) The deductible with respect to
"all-risk" insurance required by clause (b) above and product liability
insurance required by clause (a) above shall not exceed $25,000; otherwise
there shall be no deductible with respect to any insurance required to be
maintained hereunder. (d) The amount of commercial general liability insurance
(other than products liability coverage and completed operations insurance)
required by clause (a) above shall be at least $2,000,000 per occurrence. The
amount of the products liability and completed operations insurance required by
clause (a) above shall be at least $2,000,000 per occurrence. (e) Each "all
risk" policy shall: (i) name Lessor as sole loss payee with respect to the
Equipment, (ii) provide for each insurer's waiver of its right of subrogation
against Lessor and Lessee, and (iii) provide that such insurance (A) shall not
be invalidated by any action of Lessee, or any breach by Lessee of any
provision of any of its insurance policies, and (B) shall waive set-off,
counterclaim or offset against Lessor. Each liability policy shall
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(w) name Lessor as an additional insured and (x) provide that such insurance
shall have cross-liability and severability of interest endorsements (which
shall not increase the aggregate' policy limits of Lessee's insurance). All
insurance policies (y) shall provide that Lessee's insurance shall be primary
without a right of contribution of Lessor's insurance, if any, or any
obligation on the part of Lessor to pay premiums of Lessee, and (z) shall
contain a clause requiring the insurer to give Lessor at least 30 days' prior
written notice of its cancellation (other than cancellation for non-payment for
which 10 days' notice shall be sufficient). Lessee shall on or prior to the
Delivery Date of Schedule No. 1 and prior to each policy renewal, furnish to
Lessor certificates of insurance or other evidence satisfactory to Lessor that
such insurance coverage is in effect. Lessee further agrees to give Lessor
prompt notice of any damage to, or loss of, the Equipment, or any part thereof.
11. LOSS; DAMAGE; DESTRUCTION AND SEIZURE: (a) Lessee shall bear
the risk of the Units being lost, stolen, destroyed, damaged or seized by
governmental authority for any reason whatsoever at any time until the latest
to occur' of (i) the expiration or termination of the Term or (ii) any storage
period thereafter or (iii) the return of the subject Unit to Lessor (if
authorized hereunder), and shall proceed diligently and cooperate fully to
recover any and all damages, insurance proceeds or condemnation awards. (b)
Except as described in Section 11(c) hereof, if during the Term or the storage
period thereafter, any Unit shall be lost, stolen, destroyed, irreparably
damaged or seized by governmental authority for a period equal to at least the
remainder of the Term, Lessor shall receive from the proceeds of insurance
obtained pursuant to Section 10 hereof, from any award paid by the seizing
governmental authority and, to the extent not received from the proceeds of
such insurance or award or both, from Lessee, on or before the Rental Payment
date next succeeding such loss, theft, destruction, damage or governmental
seizure: (i) all accrued and unpaid rent in respect of such Unit including rent
due on the rental payment date next succeeding the date of such loss or seizure
if the rent is in arrears; (ii) the Stipulated Loss Value of such Unit,
determined as of such Rental Payment date; (iii) all other sums, if any, that
shall have become due and payable hereunder; and (iv) interest on the foregoing
at the lower of the rate equal to 1.5% per month or the highest rate then
permitted by applicable law from the due dates(s) of such payment(s) to the
date of payment. On receipt by Lessor of the amount specified hereinabove with
respect to each such Unit so lost, stolen, destroyed, damaged or seized, (i)
this Lease shall be deemed terminated as to such Unit and rent in respect of
such Unit shall be deemed abated, as of the Rental Payment date next succeeding
such loss, theft, damage, destruction or seizure; and (ii) so long as no
default or Event of Default has occurred and is continuing hereunder, Lessor
shall on demand, transfer title to such Unit, "AS IS, WHERE IS, WITHOUT
RECOURSE, REPRESENTATION OR WARRANTY," to Lessee, or, if appropriate in
Lessor's sole judgment, which judgment shall be exercised in a reasonable
manner, and on prior notice to Lessee, to Lessee's insurance carrier. Any
proceeds of insurance payable to Lessor pursuant to this Section 11 and Section
10 hereof received by Lessee shall be paid to Lessor promptly upon their
receipt by Lessee. If any proceeds of insurance or awards received from
governmental authorities are in excess of the amount owed under this Section
11(b), Lessor shall promptly remit to Lessee the amount in excess of the amount
owed to Lessor. (c) So long as no Event of Default shall have occurred and be
continuing, any proceeds of insurance obtained pursuant to Section 10 hereof
received with respect to any Unit the repair of which is practical shall, at
the election of Lessee, be applied either to the repair of such Unit
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or, upon Lessor's receipt of evidence of the repair of the Unit reasonably
satisfactory to Lessor, to the reimbursement of Lessee for the cost of such
repair. (d) Lessee shall promptly, but in any event within 30 days thereafter,
notify Lessor in writing in reasonable detail of any loss, theft, destruction
or seizure described in this Section 11. (e) The Stipulated Loss Value payable
by Lessee under this Lease shall be that percentage of Lessor's Cost of the
affected Unit(s) set forth in the table attached to the applicable Schedule as
Annex B opposite the Rental Payment date next following the event giving rise
to Lessee's obligation to pay Stipulated Loss Value. Stipulated Loss Values
and Rental Payments shall not be prorated.
12. EVENTS OF DEFAULT: An "Event of Default" shall occur if
Lessee: (a) fails to pay/make any Rental Payment or other payment required
hereunder when due and such failure continues for a period of 10 days; or (b)
fails to perform or observe any other material covenant, condition or agreement
hereunder or breaches any provision contained herein or in any other document
furnished Lessor in connection herewith, and such failure or breach continues
for a period of 30 days after written notice by Lessor; or (c) makes any
representation or warranty herein or in any document furnished in connection
herewith, which shall have been materially false or inaccurate when made; or
(d) fails to maintain insurance under this Lease or otherwise required by the
Lessor hereunder; or (e) shall admit in writing that it is unable to pay its
debts as they become due, become insolvent or bankrupt or make an assignment
for the benefit of its creditors or consents to the appointment of a trustee or
receiver or insolvency proceedings shall be instituted by or against Lessee.
13. REMEDIES: Upon the occurrence of any Event of Default and at
any time thereafter, provided such Event of Default is then continuing (which
occurrence, for purposes of clause (a)(ii)(B) below is the day Lessee shall be
deemed to tender possession of the Equipment to Lessor), (a) Lessor may, in its
discretion, do any one or more of the following, all of which Lessor and Lessee
expressly agree are commercially reasonable under the UCC and any other
applicable law: (i) terminate this Lease; (ii) declare to be immediately due
and payable: (A) all unpaid rent and sums then due and payable under this Lease
(other than amounts payable under clause (B) hereof, if any,) plus (B) an
amount equal to the greater of the then applicable Stipulated Loss Value (which
value Lessee acknowledges has a reasonable discount rate implicit therein) or
the then applicable fair market value of the Equipment as determined by Lessor
(but in no event less than an amount, equal to the Minimum Purchase Option
Percentage of Lessor's Cost); (iii) require that Lessee return all Equipment to
Lessor in accordance with Section 6 hereof, (iv) enter upon the premises where
such Equipment is located and take immediate possession of and remove the same,
all without liability to Lessor or its agents for such entry; (v) sell any or
all of the Equipment at public or private sale, with or without notice to
Lessee or advertisement, or otherwise dispose of, hold, use, operate, lease to
others or keep idle such Equipment, all free and clear of any rights of Lessee
and without any duty to account to Lessee for such action or inaction or for
any proceeds with respect thereto subject to applicable law; (vi) exercise any
other right or remedy which may be available under the UCC or other applicable
law including the right to recover damages for the breach hereof. (b) In
addition, Lessee shall be liable for, and reimburse Lessor for, all reasonable
and necessary attorneys' fees and other expenses incurred by Lessor as a result
of the foregoing defaults, or the exercise of Lessor's remedies, including
without limitation placing any Equipment in the condition required by Section 9
hereof. No remedy referred to
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in this Section 13 is intended to be exclusive, but each shall be cumulative
and in addition to any other remedy referred to above or otherwise available to
Lessor at law or in equity (c) There shall be no waiver by Lessor of any
default unless in writing and such waiver shall not constitute a waiver of any
other default by Lessee, or a waiver of any of Lessor's other rights. Lessee
waives any rights now or hereafter conferred by statute or otherwise that may
require Lessor to sell, re-lease or otherwise use or dispose any Unit in
mitigation of the Lessor's damages or that might otherwise limit or modify any
of Lessor's rights or remedies under this Lease.
14. LESSEE'S REPRESENTATIONS, WARRANTIES AND COVENANTS: (a) Lessee
warrants and represents the following as of the date hereof. (i) Lessee is a
corporation duly organized, validly existing and in good standing under the laws
of the state of its incorporation and is duly qualified and authorized to do
business in the state where the Equipment will be located; (ii) Lessee has the
full corporate power, authority and legal right and has obtained all necessary
approvals, consents and given all notices to execute and deliver this Lease and
perform the terms hereof and of each Schedule; (iii) there is no action,
proceeding or patent claim pending or, insofar as Lessee knows, threatened
against Lessee or any of its subsidiaries before any court or administrative
agency which might have a materially adverse effect on the business, condition
or operations of Lessee or such subsidiary; and (iv) this Lease has been and
each Schedule will be duly executed and delivered by Lessee and constitute or
will constitute the valid, binding and enforceable obligations of Lessee. (b)
Lessee agrees that by its signature on each Schedule it shall be deemed to have
warranted and represented the following as of the Delivery Date of such
Schedule: (i) all of the Units being delivered on the Delivery Date of such
Schedule are accurately described in Annex A attached to such Schedule, have
been fully assembled and conform to all applicable performance criteria; (ii)
the requirements of this Lease and of Lessor with respect to the identification
of the Units have been met; and (iii) except as set forth in Annex C to the
applicable Schedule, each of the representations and warranties set forth in
clause (a) of this Section 14 remains true and correct. (c) Lessee covenants and
agrees that it shall not, without Lessor's prior written consent, attempt, cause
or permit another to sell, transfer, encumber, part with possession, or sublet,
voluntarily or involuntarily, any Unit.
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15. NOTICES. All notices (and financial information required to be
delivered to Lessor under Section 16(c) of this Lease) shall be addressed as
follows:
If to Lessor:
MMC/GATX PARTNERSHIP NO. I
c/o GATX CAPITAL CORPORATION, Agent
Four Embarcadero Center, Suite 2200
San Francisco, CA 94111
Attn: Contract Administration
With a copy of required financial information to:
MEIER MITCHELL & COMPANY
4 Orinda Way, Suite 200-B
Orinda, California 94563
Attn: Contract Administration
If to Lessee, at the address set forth on the cover page of this
Lease.
16. MISCELLANEOUS: (a) Any notices hereunder shall be in writing
and shall be deemed given when delivered personally, by private courier, by
facsimile transmission or sent by certified mail, postage prepaid, addressed to
the other party at its address set forth herein or to such other address as
either party may designate in writing. Such notices or demands shall be deemed
given upon receipt in the case of personal delivery, mailing or facsimile
transmission. (b) Lessee will promptly execute and deliver to Lessor such
further reasonable documents (including, but not limited to, financing
statements) and take such further reasonable action (such as obtaining landlord
or mortgagee's waivers), as Lessor may request in order to more effectively
carry out the intent and purpose of this Lease or an assignment of Lessor's
interest herein. (c) Lessee shall furnish to Lessor monthly and audited annual
financial statements and such other financial information as Lessor may
reasonably request from time to time. (d) This Lease constitutes the entire
agreement on the subject matter hereof between the parties hereto (other than
any document executed in connection herewith) and shall be binding upon and
inure to the benefit of the parties hereto, their permitted successors and
assigns. (e) Any provision of the Lease which is unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof; and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction. (f) Time is of the essence with respect to the Lease. (g)
The captions set forth herein are for convenience only and shall not define or
limit any of the terms hereof (h) The language in this Lease and the related
documents is to be construed as to its fair meaning and not strictly for or
against any party. (i) All payments shall be paid to the address designated by
Lessor in the applicable Schedule or otherwise in a writing signed by Lessor.
(j) Lessee's and Lessor's obligations hereunder shall survive the expiration
and termination of the Term to the extent required for full performance and
satisfaction thereof. (k) ALL MATTERS INVOLVING THE CONSTRUCTION, VALIDITY,
PERFORMANCE AND ENFORCEMENT OF THIS LEASE WILL BE GOVERNED BY THE LAWS OF THE
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STATE OF CALIFORNIA WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAW OR
CHOICE OF LAW. This Lease is being executed in the State of California and is
to be performed in such State. Lessee agrees and consents that the Superior
Court of the State of California for the County of San Francisco or the Federal
District Court for the jurisdiction in that County shall have jurisdiction and
shall be the venue for determination of all controversies, disputes and actions
arising under this Lease. Nothing contained herein is intended to preclude
Lessor from commencing any action under this Lease in any court having
jurisdiction thereof. (1) This Lease may be executed by the parties hereto in
separate counterparts, each of which when so executed and delivered shall be an
original, but all such counterparts shall together constitute one and same
instrument; provided, however, that to the extent, if any, that this Lease
constitutes chattel paper (as such term is defined in the Uniform Commercial
Code as in effect in any applicable jurisdiction), no security interest in this
Lease may be created through the transfer or possession of any counterpart of
this Lease other than the original executed counterpart of this Lease, which
shall be identified as such counterpart.
17. AMENDMENTS, MODIFICATIONS, WAIVERS: NONE OF THE PROVISIONS OF
TIES LEASE MAY BE AMENDED, MODIFIED OR WAIVED EXCEPT IN A WRITING SIGNED BY
LESSOR AND LESSEE.
INITIALS /s/ KG (LESSOR) /s/ PS INITIALS (LESSEE)
This Lease is hereby duly executed by the parties hereto as set forth
below.
LESSEE: LESSOR:
CALYPTE BIOMEDICAL CORPORATION MMC/GATX PARTNERSHIP NO. I
By GATX CAPITAL CORPORATION, as
Agent
BY: /s/ PAUL SIGEL BY: /s/ KEITH E. GUINN
NAME (PRINT): Paul Sigel NAME (PRINT): Keith E. Guinn
TITLE: CFO TITLE: VP
DATE: [ILLEGIBLE] DATE: 9/24/93
This Lease incorporates the following Riders as if set forth herein:
Rider I; ___________ ; ___________ ; ___________
INITIALS /s/ KG (LESSOR) INITIALS /s/ PS (LESSEE)
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Exhibit A - Warrant
Exhibit B - Landlord Waiver
Exhibit C - Purchase Order and Invoice Assignment
Exhibit D - Bill of Sale
Exhibit E - Form of Schedule
Exhibit F - Security Deposit Pledge Agreement
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RIDER I
TO MASTER EQUIPMENT
LEASE AGREEMENT NO._____
DATED AUGUST 20, 1993
Conditions to Lessor's Obligations
By their initials below and on the signature page of the Master
Equipment Lease Agreement referenced in the upper right corner of this page,
Lessor and Lessee agree that the Lease incorporates the following terms:
1. On or prior to the date of execution of the Lease by Lessor,
Lessor shall have received in form and substance satisfactory to Lessor:
(a) A Warrant substantially in the form of Exhibit A hereto.
(b) A Security Deposit Pledge Agreement in the form of Exhibit F
hereto.
(c) A legal opinion of Lessee's legal counsel in form and
substance reasonably satisfactory to Lessor.
(d) Copies, certified by the Secretary or Assistant Secretary or
Chief Financial Officer of Lessee, of: (A) the Articles of
Incorporation and By-Laws of Lessee (as amended to the date of
the Lease) and (B) the resolutions adopted by Lessee's board
of directors authorizing the execution and delivery of this
Lease, the Schedules, the Warrant and the other documents
referred to herein and the performance by Lessee of its
obligations hereunder and thereunder;
(e) Unless the opinion of Lessor's legal counsel contains language
to the same effect, a Good Standing Certificate (including
franchise tax status) with respect to Lessee from Lessee's
state of incorporation, dated a date reasonably close to the
date of acceptance of the Lease by Lessor.
(f) Evidence of the insurance coverage required by Section 10 of
the Lease.
(g) All necessary consents of shareholders and other third parties
with respect to the subject matter of the Lease, the Schedules
and the Warrant.
(h) All other documents as Lessor shall have reasonably requested.
2. Prior to any funding on a Delivery Date, Lessee shall have
satisfied all of the conditions set forth in the applicable Schedule.
Initials /s/ KG (Lessor)
Initials /s/ PS (Lessee)
RIDER I
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RIDER II
TO MASTER EQUIPMENT
LEASE AGREEMENT NO._____
DATED AUGUST 20,1993
LESSOR:MMC/GATX PARTNERSHIP NO. I
LESSEE: CALYPTE BIOMEDICAL CORPORATION
Lessor and Lessee hereby agree that the Master Equipment Lease
Agreement referenced in the upper right corner of this page (the "Lease")
incorporates the following amended terms:
Notwithstanding the provisions of Section 10 of the Lease, the amount
of products liability and completed operations insurance required by
clause (a) of Section 10 of the Lease shall be at least (i) $1,000,000
per occurrence until the earlier of (A) the date Lessee commences
commercial sales of its products, or (B) January 1, 1994, and (ii)
thereafter, $5,000,000 per occurrence.
This Rider II is hereby duly executed by the parties hereto as set
forth below.
LESSEE: LESSOR:
CALYPTE BIOMEDICAL CORPORATION MMC/GATX PARTNERSHIP NO. I
By GATX Capital Corporation, as Agent
By /s/ PAUL SIEGEL By: /s/ KEITH E. GUINN
Name: Paul Siegel Name: KEITH E. GUINN
Title: CFO Title: VP
Date: 8/20/93 Date: 9/24/93
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EXHIBIT A
WARRANT
20
THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, OR ANY STATE SECURITIES LAWS. NO SALE OR DISPOSITION MAY
BE EFFECTED WITHOUT (i) EFFECTIVE REGISTRATION STATEMENTS RELATED
THERETO, (ii) AN OPINION OF COUNSEL FOR THE HOLDER, REASONABLY
SATISFACTORY TO THE COMPANY, THAT SUCH REGISTRATIONS ARE NOT
REQUIRED, (iii) RECEIPT OF NO-ACTION LETTERS FROM THE APPROPRIATE
GOVERNMENTAL AUTHORITIES, OR (iv) OTHERWISE COMPLYING WITH THE
PROVISIONS OF SECTION 7 OF THIS WARRANT.
CALYPTE BIOMEDICAL CORPORATION
WARRANT TO PURCHASE 122,667 SHARES
OF COMMON STOCK
THIS CERTIFIES THAT, for value received, MMC/GATX Partnership No. I
(the "Partnership") is entitled to subscribe for and purchase 122,667 shares of
the fully paid and nonassessable Common Stock, $.001 par value (as adjusted
pursuant to Section 4 hereof, the "Shares") of Calypte Biomedical Corporation,
a California corporation (the "Company"), at the price of $.75 per share (such
price and such other price as shall result, from time to time, from the
adjustments specified in Section 4 hereof is herein referred to as the "Warrant
Price"), subject to the provisions and upon the terms and conditions
hereinafter set forth. As used herein, (a) the term "Common Stock" shall mean
the Company's presently authorized Common Stock, and any stock into or for
which such Common Stock may hereafter be converted or exchanged, (b) the term
"Date of Grant" shall mean August 20, 1993, and (c) the term "Other Warrants"
shall mean any other warrants issued by the Company in connection with the
transaction with respect to which this Warrant was issued, and any warrant
issued upon transfer or partial exercise of this Warrant. The term "Warrant"
as used herein shall be deemed to include Other Warrants unless the context
clearly requires otherwise.
1. Term. The purchase right represented by this Warrant is
exercisable, in whole or in part, at any time and from time to time from the
Date of Grant through the later of (i) ten (10) years after the Date of Grant
or (ii) five (5) years after the closing of the Company's initial public
offering of its Common Stock effected pursuant to a Registration Statement on
Form S-1 (or its successor) filed under the Securities Act of 1933, as amended
(the "Act").
2. Method of Exercise, Payment, Issuance of New Warrant. Subject
to Section 1 hereof, the purchase right represented by this Warrant may be
exercised by the holder hereof, in whole or in part and from time to time, by
either, at the election of the holder hereof, (a) the surrender of this Warrant
(with the notice of exercise form attached hereto as Exhibit A duly executed)
at the principal office of the Company and by the payment to the Company, by
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check, of an amount equal to the then applicable Warrant Price multiplied by the
number of Shares then being purchased, or (b) if in connection with a registered
public offering of the Company's securities, the surrender of this Warrant (with
the notice of exercise form attached hereto as Exhibit A-1 duly executed) at the
principal office of the Company together with notice of arrangements reasonably
satisfactory to the Company for payment to the Company either by check or from
the proceeds of the sale of shares to be sold by the holder in such public
offering of an amount equal to the then applicable Warrant Price per share
multiplied by the number of Shares then being purchased. The person or persons
in whose name(s) any certificate(s) representing shares of Common Stock shall be
issuable upon exercise of this Warrant shall be deemed to have become the
holder(s) of record of, and shall be treated for all purposes as the record
holder(s) of, the shares represented thereby (and such shares shall be deemed to
have been issued) immediately prior to the close of business on the date or
dates upon which this Warrant is exercised. In the event of any exercise of the
rights represented by this Warrant, certificates for the shares of stock so
purchased shall be delivered to the holder hereof as soon as possible and in any
event within thirty days after such exercise and, unless this Warrant has been
fully exercised or expired, a new Warrant representing the portion of the
Shares, if any, with respect to which this Warrant shall not then have been
exercised shall also be issued to the holder hereof as soon as possible and in
any event within such thirty-day period.
3. Stock Fully Paid; Reservation of Shares. All Shares that may
be issued upon the exercise of the rights represented by this Warrant will,
upon issuance pursuant to the terms and conditions herein, be fully paid and
nonassessable, and free from all taxes, liens and charges with respect to the
issue thereof. During the period within which the rights represented by this
Warrant may be exercised, the Company will at all times have authorized, and
reserved for the purpose of the issue upon exercise of the purchase rights
evidenced by this Warrant, a sufficient number of shares of its Common Stock to
provide for the exercise of the rights represented by this Warrant.
4. Adjustment of Warrant Price and Number of Shares. The number
and kind of securities purchasable upon the exercise of this Warrant and the
Warrant Price shall be subject to adjustment from time to time upon the
occurrence of certain events, as follows:
(a) Reclassification or Merger. In case of any reclassification,
change or conversion of securities of the class issuable upon exercise of this
Warrant (other than a change in par value, or from par value to no par value, or
from no par value to par value, or as a result of a subdivision or combination),
or in case of any merger of the Company with or into another corporation (other
than a merger with another corporation in which the Company is the acquiring and
the surviving corporation and which does not result in any reclassification or
change of outstanding securities issuable upon exercise of this Warrant), or in
case of any sale of all or substantially all of the assets of the Company, the
Company, or such successor or purchasing corporation, as the case may be, shall
duly execute and deliver to the holder of this Warrant a new Warrant (in form
and substance satisfactory to the holder of this Warrant), so that the holder of
this Warrant shall have the right to receive, at a total purchase price not
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to exceed that payable upon the exercise of the unexercised portion of this
Warrant, and in lieu of the shares of Common Stock theretofore issuable upon
exercise of this Warrant, the kind and amount of shares of stock, other
securities, money and property receivable upon such reclassification, change or
merger by a holder of the number of shares of Common Stock then purchasable
under this Warrant. Such new Warrant shall provide for adjustments that shall
be as nearly equivalent as may be practicable to the adjustments provided for
in this Section 4. The provisions of this subparagraph (a) shall similarly
apply to successive reclassifications, changes, mergers and transfers.
(b) Subdivision or Combination of Shares. If the Company
at any time while this Warrant remains outstanding and unexpired shall
subdivide or combine its outstanding shares of Common Stock, the Warrant Price
shall be proportionately decreased in the case of a subdivision or increased in
the case of a combination, effective at the close of business on the date the
subdivision or combination becomes effective.
(c) Stock Dividends and Other Distributions. If the
Company at any time while this Warrant is outstanding and unexpired shall (i)
pay a dividend with respect to Common Stock payable in Common Stock, or (ii)
make any other distribution with respect to Common Stock (except any
distribution specifically provided for in the foregoing subparagraphs (a) and
(b)) of Common Stock, then the Warrant Price shall be adjusted, from and after
the date of determination of shareholders entitled to receive such dividend or
distribution, to that price determined by multiplying the Warrant Price in
effect immediately prior to such date of determination by a fraction (i) the
numerator of which shall be the total number of shares of Common Stock
outstanding immediately prior to such dividend or distribution, and (ii) the
denominator of which shall be the total number of shares of Common Stock
outstanding immediately after such dividend or distribution.
(d) Adjustment of Number of Shares. Upon each
adjustment in the Warrant Price, the number of Shares of Common Stock
purchasable hereunder shall be adjusted, to the nearest whole share, to the
product obtained by multiplying the number of Shares purchasable immediately
prior to such adjustment in the Warrant Price by a fraction, the numerator of
which shall be the Warrant Price immediately prior to such adjustment and the
denominator of which shall be the Warrant Price immediately thereafter.
(e) Antidilution Rights. In the event that the
"Conversion Price" (as defined in the Company's Restated Articles of
Incorporation, as amended through the Date of Grant, a true and complete copy
of which is attached hereto as Exhibit B (the "Charter")), for the Company's
Series D Preferred Stock is reduced from time to time prior to December 16,
1993 pursuant to the antidilution rights applicable to the Series D Preferred
Stock set forth in Section 6.C.(a)(i)(I) of Article III of the Charter (other
than reductions covered by Sections 4(b) or (c) of this Warrant), then the same
reduction shall forthwith be made to the Warrant Price, subject to
proportionate adjustment to reflect any stock split or combination, stock
dividend or similar event occurring after the Date of Grant. The intent of
this Section 4(e) is to provide the holder of this Warrant with the same
antidilution protection as would have
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prevailed prior to December 16, 1993 if this Warrant had entitled the holder
hereof to purchase shares of the Company's Series D Preferred Stock (rather
than Common Stock), as such antidilution protection is set forth in the
Charter. Such antidilution rights shall not be amended, modified or waived in
any manner that is materially adverse to the holder hereof without such
holder's prior written consent. The Company shall promptly provide the holder
hereof with any restatement, amendment, modification or waiver of the Charter
promptly after the same has been made.
5. Notice of Adjustments. Whenever the Warrant Price or the
number of Shares purchasable hereunder shall be adjusted pursuant to Section 4
hereof, the Company shall make a certificate signed by its chief financial
officer setting forth, in reasonable detail, the event requiring the
adjustment, the amount of the adjustment, the method by which such adjustment
was calculated, and the Warrant Price and the number of Shares purchasable
hereunder after giving effect to such adjustment, which shall be mailed
(without regard to Section 13 hereof, by first class mail, postage prepaid) to
the holder of this Warrant.
6. Fractional Shares. No fractional shares of Common Stock will
be issued in connection with any exercise hereunder, but in lieu of such
fractional shares the Company shall make a cash payment therefor based on the
fair market value of the Common Stock on the date of exercise as reasonably
determined in good faith by the Company's Board of Directors.
7. Compliance with Securities Act, Disposition of Warrant or
Shares of Common Stock.
(a) Compliance with Securities Act. The holder of this
Warrant, by accept agrees that this Warrant, and the shares of Common Stock to
be issued upon exercise hereof are being acquired for investment and that such
holder will not offer, sell or otherwise dispose of this Warrant, or any shares
of Common Stock to be issued upon exercise hereof except under circumstances
which will not result in a violation of the Act. Upon exercise of this
Warrant, unless the Shares being acquired are registered under the Act or an
exemption from such registration is available, the holder hereof shall confirm
in writing, by executing the form attached as Schedule 1 to Exhibit A hereto,
that the shares of Common Stock so purchased are being acquired for investment
and not with a view toward distribution or resale. This Warrant and all shares
of Common Stock issued upon exercise of this Warrant (unless registered under
the Act) shall be stamped or imprinted with a legend in substantially the
following form:
"THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS. NO
SALE OR DISPOSITION MAY BE EFFECTED WITHOUT (i) EFFECTIVE REGISTRATION
STATEMENTS RELATED THERETO, (ii) AN OPINION OF COUNSEL FOR THE HOLDER,
REASONABLY SATISFACTORY TO THE COMPANY, THAT SUCH RE-
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GISTRATIONS ARE NOT REQUIRED, (iii) RECEIPT OF NO-ACTION LETTERS FROM
THE APPROPRIATE GOVERNMENTAL AUTHORITIES, OR (iv) OTHERWISE COMPLYING
WITH THE PROVISIONS OF SECTION 7 OF THE WARRANT UNDER WHICH THESE
SECURITIES WERE ISSUED, DIRECTLY OR INDIRECTLY."
In addition, in connection with the issuance of this Warrant, the
holder specifically represents to the Company by acceptance of this Warrant as
follows:
(1) The holder is aware of the Company's business affairs and
financial condition, and has acquired information about the Company sufficient
to reach an informed and knowledgeable decision to acquire this Warrant. The
holder is acquiring this Warrant for its own account for investment purposes
only and not with a view to, or for the resale in connection with, any
"distribution" thereof for purposes of the Act.
(2) The holder understands that this Warrant has not been
registered under the Act in reliance upon a specific exemption therefrom, which
exemption depends upon, among other things, the bona fide nature of the
holder's investment intent as, expressed herein. In this connection, the
holder understands that, in the view of the SEC, the statutory basis for such
exemption may be unavailable if the holder's representation was predicated
solely upon a present intention to hold the Warrant for the minimum capital
gains period specified under tax statutes, for a deferred sale, for or until an
increase or decrease in the market price of the Warrant, or for a period of one
year or any other fixed period in the future.
(3) The holder further understands that this Warrant must be held
indefinitely unless subsequently registered under the Act and any applicable
state securities laws, or unless exemptions from registration are otherwise
available. Moreover, the holder understands that, except as provided in
Section 9 hereof, the Company is under no obligation to register this Warrant.
(4) The holder is aware of the provisions of Rule 144 and 144A,
promulgated under the Act, which, in substance, permit limited public resale of
"restricted securities" acquired, directly or indirectly, from the issuer
thereof (or from an affiliate of such issuer), in a non-public offering subject
to the satisfaction of certain conditions, if applicable, including, among
other things: The availability of certain public information about the Company,
the resale occurring not less than two years after the party has purchased and
paid for the securities to be sold; the sale being made through a broker in an
unsolicited "broker's transaction" or in transactions directly with a market
maker (as said term is defined under the Securities Exchange Act of 1934, as
amended) and the amount of securities being sold during any three-month period
not exceeding the specified limitations stated therein.
(5) The holder further understands that at the time it wishes to
sell this Warrant there may be no public market upon which to make such a sale,
and that, even if such a public market then exists, the Company may not be
satisfying the current public information re-
5
25
quirements of Rule 144 and 144A, and that, in such event, the holder may be
precluded from selling this Warrant under Rule 144 and 144A even if the
two-year minimum holding period had been satisfied.
(6) The holder further understands that in the event all of the
requirements of Rule 144 and 144A are not satisfied, registration under the
Act, compliance with Regulation A, or some other registration exemption will be
required; and that, notwithstanding the fact that Rule 144 and 144A are not
exclusive, the Staff of the SEC has expressed its opinion that persons
proposing to sell private placement securities other than in a registered
offering and otherwise than pursuant to Rule 144 and 144A will have a
substantial burden of proof in establishing that an exemption from registration
is available for such offers or sales, and that such persons and their
respective brokers who participate in such transactions do so at their own
risk.
(b) Disposition of Warrant or Shares. With respect to
any offer, sale or other disposition of this Warrant or any shares of Common
Stock acquired pursuant to the exercise of this Warrant prior to registration
of such Warrant or shares, the holder hereof and each subsequent holder of this
Warrant agrees to give written notice to the Company prior thereto, describing
briefly the manner thereof, together with a written opinion of such holder's
counsel, if reasonably requested by the Company, to the effect that such offer,
sale or other disposition may be effected without registration or qualification
(under the Act as then in effect or any federal or state law then in effect) of
this Warrant or such shares of Common Stock and indicating whether or not under
the Act certificates for this Warrant or such shares of Common Stock to be sold
or otherwise disposed of require any restrictive legend as to applicable
restrictions on transferability in order to ensure compliance with such law.
Promptly upon receiving such written notice and reasonably satisfactory
opinion, if so requested, the Company, as promptly as practicable, shall notify
such holder that such holder may sell or otherwise dispose of this Warrant or
such shares of Common Stock, all in accordance with the terms of the notice
delivered to the Company. If a determination has been made pursuant to this
subsection (b) that the opinion of counsel for the holder is not reasonably
satisfactory to the Company, the Company shall so notify the holder promptly
after such determination has been made and shall specify in detail the legal
analysis supporting any such conclusion. Notwithstanding the foregoing, this
Warrant or such shares of Common Stock may, as to such federal laws, be
offered, sold or otherwise disposed of in accordance with Rule 144 or 144A
under the Act, provided that the Company shall have been furnished with such.
information as the Company may reasonably request to provide a reasonable
assurance that the provisions of Rule 144 or 144A have been satisfied. Each
certificate representing this Warrant or the shares of Common Stock thus
transferred (except a transfer pursuant to Rule 144 or 144A) shall bear a
legend as to the applicable restrictions on transferability in order to ensure
compliance with such laws, unless in the aforesaid opinion of counsel for the
holder, such legend is not required in order to ensure compliance with such
laws. The Company may issue stop transfer instructions to its transfer agent
in connection with such restrictions.
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26
(c) Excepted Transfers. Neither any restrictions of any legend
described in this Warrant nor the requirements of Section 7(b) above shall
apply to any transfer without any additional consideration of, or grant of a
security interest in, this Warrant or any part hereof (i) to a partner of the
holder if the holder is a partnership, (ii) by the holder to a partnership of
which the holder is a general partner, or (iii) to any affiliate of the holder
if the holder is a corporation; provided, however, in any such transfer, the
transferee shall on the Company's request agree in writing to be bound by the
terms of this Warrant as if an original signatory hereto.
8. Rights as Shareholders, Information. No holder of this
Warrant, as such, shall be entitled to vote or receive dividends or be deemed
the holder of Common Stock or any other securities of the Company which may at
any time be issuable on the exercise hereof for any purpose, nor shall anything
contained herein be construed to confer upon the holder of this Warrant, as
such, any of the rights of a shareholder of the Company or any right to vote
for the election of directors or upon any matter submitted to shareholders at
any meeting thereof, or to receive notice of meetings, or to receive dividends
or subscription rights or otherwise until this Warrant shall have been
exercised and the Shares purchasable upon the exercise hereof shall have become
deliverable, as provided herein. Notwithstanding the foregoing, the Company
will transmit to the holder of this Warrant such information, documents and
reports as are generally distributed to the holders of any class or series of
the securities of the Company concurrently with the distribution thereof to the
shareholders.
9. Registration Rights. The Company covenants and agrees as
follows:
9.1 Definitions. For purposes of this Section 9:
(a) The term "Registrable Shares" means (i) the Common
Stock issuable or issued upon exercise or conversion of this Warrant or upon
exercise or conversion of the Other Warrants, and (ii) any Common Stock of the
Company issued as (or issuable upon the conversion or exercise of any warrant,
right or other security which is issued as) a dividend or other distribution
with respect to, or in exchange for or in replacement of, such Series Common
Stock;
(b) The term "Shareholder" means any person owning or
having the right to acquire Registrable Shares or any assignee thereof in
accordance with Paragraph 9.3 hereof; and
(c) The term "Registration Rights" means Section 9 (other
than Sections 9.1, 9.3 and 9.4) of the Agreement for the Purchase and Sale of
Series D Preferred Stock dated as of December 16, 1992 by and among the Company
and the investors who are signatories thereto (the "Purchase Agreement").
9.2 Grant of Rights. The Company hereby grants to the
Shareholders the rights set forth in the Registration Rights. A true and
complete copy of the Registration
7
27
Rights is attached hereto as Exhibit C. The Company represents and warrants to
the Shareholders that the Company has obtained all consents of parties to the
Purchase Agreement and of any other persons that are required in order for the
Registrable Shares to be included in the definition of "Registrable Securities"
and for the Shareholders to be included in the definition of "Holders," as such
terms are used in the Registration Rights.
9.3 Assignment of Registration Rights. Notwithstanding
any provision of the Registration Rights, the rights to cause the Company to
register Registrable Shares pursuant to the Registration Rights and this
Section 9 may be assigned by a Shareholder to a transferee or assignee of such
securities provided the Company is, within a reasonable time after such
transfer, furnished with written notice of the name and address of such
transferee or assignee and the securities with respect to which such
registration rights are being assigned; and provided, further, that such
assignment shall be effective only if immediately following such transfer the
further disposition of such securities by the transferee or assignee is
restricted under the Act.
9.4 No Conflicting Agreements. The Company represents
and warrants to the Shareholders that the Company is not a party to any
agreement that conflicts in any manner with the Shareholders' rights to cause
the Company to register Registrable Shares pursuant to the Registration Rights
and this Section 9. The Company covenants and agrees that it shall not, without
the prior written consent of the Shareholders holding a majority of the
outstanding Registrable Shares, amend, modify or restate the Registration
Rights if the rights of the Shareholders would be subordinated, diminished or
otherwise adversely affected in a different manner than other "Holders" of
"Registrable Securities" (as defined in the Registration Rights).
9.5 Rights and Obligations Survive Exercise and
Expiration of Warrant. The rights and obligations of the Company, of the
holder of this Warrant and of the Registrable Shares contained in the
Registration Rights and this Section 9 shall survive exercise, conversion and
expiration of this Warrant.
10. Additional Rights.
10.1 Secondary Sales. The Company agrees that it will not
interfere with the holder of this Warrant in obtaining liquidity if
opportunities to make secondary sales of the Company's securities become
available. To this end, the Company will promptly provide the holder of this
Warrant with the same notice (if any) as it provides to other holders of the
Company's securities of any offer to acquire from the Company's security
holders more than five percent (5%) of the total voting power of the Company
and will not interfere with the holder in arranging the sale of this Warrant to
the person or persons making such offer.
10.2 Mergers. The Company will provide the holder of this
Warrant with at least 30 days' notice of the terms and conditions of any
proposed (i) sale, lease, exchange, conveyance or other disposition of all or
substantially all of its property or business, or (ii)
8
28
merger into or consolidation with any other corporation (other than a
wholly-owned subsidiary of the Company), or any other transaction (including a
merger or other reorganization) or series of related transactions, in which
more than 50% of the voting power of the Company is disposed of.
10.3 Right to Convert Warrant into Common Stock: Net
Issuance.
(a) Right to Convert. In addition to and without
limiting the rights of the holder under the terms of this Warrant, the holder
shall have the right to convert this Warrant or any portion thereof (the
"Conversion Right") into shares of Common Stock as provided in this Section
10.3 at any time or from time to time during the term of this Warrant. Upon
exercise of the Conversion Right with respect to a particular number of shares
subject to this Warrant (the "Converted Warrant Shares"), the Company shall
deliver to the holder (without payment by the holder of any exercise price or
any cash or other consideration) (X) that number of shares of fully paid and
nonassessable Common Stock equal to the quotient obtained by dividing the value
of this Warrant (or the specified portion hereof) on the Conversion Date (as
defined in subsection (b) hereof), which value shall be determined by
subtracting (A) the aggregate Warrant Price of the Converted Warrant Shares
immediately prior to the exercise of the Conversion Right from (B) the
aggregate fair market value of the Converted Warrant Shares issuable upon
exercise of this Warrant (or the specified portion hereof) on the Conversion
Date (as herein defined) by (Y) the fair market value of one share of Common
Stock on the Conversion Date (as herein defined).
Expressed as a formula, such conversion shall be computed as follows:
X = B - A
-----
Y
Where: X = the number of shares Common Stock that may be issued
to holder
Y = the fair market value (FMV) of one share of Common Stock
A = the aggregate Warrant Price (i.e., Converted Warrant
Shares x Warrant Price)
B = the aggregate FMV (i.e., FMV x Converted Warrant Shares)
No fractional shares shall be issuable upon exercise of the Conversion
Right, and, if the number of shares to be issued determined in accordance with
the foregoing formula is other than a whole number, the Company shall pay to
the holder an amount in cash equal to the fair market value of the resulting
fractional share on the Conversion Date (as hereinafter defined).
9
29
(b) Method of Exercise. The Conversion Right may
be exercised by the holder by the surrender of this Warrant at the principal
office of the Company together with a written statement specifying that the
holder thereby intends to exercise the Conversion Right and indicating the
number of shares subject to this Warrant which are being surrendered (referred
to in subsection (a) hereof as the Converted Warrant Shares) in exercise of the
Conversion Right. Such conversion shall be effective upon receipt by the
Company of this Warrant together with the aforesaid written statement, or on
such later date as is specified therein (the "Conversion Date"), and, at the
election of the holder hereof, may be made contingent upon the closing of the
sale of the Company's Common Stock to the public in a public offering pursuant
to a Registration Statement under the Act (a "Public Offering"). Certificates
for the shares issuable upon exercise of the Conversion Right and, if
applicable, a new warrant evidencing the balance of the shares remaining
subject to this Warrant, shall be issued as of the Conversion Date and shall be
delivered to the holder within thirty (30) days following the Conversion Date.
(c) Determination of Fair Market Value. For
purposes of this Section 10.3, "fair market value" of a share of Common Stock
as of a particular date (the "Determination Date") shall mean:
(i) If the Conversion Right is exercised in connection
with and contingent upon a Public Offering, and if the Company's Registration
Statement relating to such Public Offering ("Registration Statement") has been
declared effective by the SEC, then the initial "Price to Public" specified in
the final prospectus with respect to such offering.
(ii) If the Conversion Right is not exercised in
connection with and contingent upon a Public Offering, then as follows:
(A) If traded on a securities exchange, the fair market
value of the Common Stock shall be deemed to be the average of the
closing prices of the Common Stock on such exchange over the 30-day
period ending five business days prior to the Determination Date;
(B) If traded over-the-counter, the fair market value of
the Common Stock shall be deemed to be the average of the closing bid
prices of the Common Stock over the 30-day period ending five business
days prior to the Determination Date; and
(C) If there is no public market for the Common Stock,
then fair market value shall be determined by mutual agreement of the
holder of this Warrant and the Company, and if the holder and the
Company are unable to so agree, by an investment banker of national
reputation selected by the Company and reasonably acceptable to the
holder of this Warrant. The fees and expenses of any such investment
banker shall be borne equally by the Company and the holder of this
Warrant.
10
30
11. Representations and Warranties. The Company represents and
warrants to the holder of this Warrant as follows:
(a) This Warrant has been duly authorized and executed by
the Company and is a valid and binding obligation of the Company enforceable in
accordance with its terms, subject to laws of general application relating to
bankruptcy, insolvency and the relief of debtors and the rules of law or
principles at equity governing specific performance, injunctive relief and
other equitable remedies;
(b) The Shares have been duly authorized and reserved for
issuance by the Company and, when issued in accordance with the terms hereof,
will be validly issued, fully paid and nonassessable;
(c) The rights, preferences, privileges and restrictions
granted to or imposed upon the Common Stock and the holders thereof are as set
forth in the Charter, as amended to the Date of the Grant, a true and complete
copy of which has been delivered to the original holder of this Warrant and is
attached hereto as Exhibit B;
(d) The execution and delivery of this Warrant are not,
and the issuance of the Shares upon exercise of this Warrant in accordance with
the terms hereof will not be, inconsistent with the Company's Charter or
by-laws, do not and will not contravene any law, governmental rule or
regulation, judgment or order applicable to the Company, and do not and will not
conflict with or contravene any provision of, or constitute a default under, any
indenture, mortgage, contract or other instrument of which the Company is a
party or by which it is bound or require the consent or approval of, the giving
of notice to, the registration or filing with or the taking of any action in
respect of or by, any Federal, state or local government authority or agency or
other person, except for the filing of notices pursuant to federal and state
securities laws, which filings will be effected by the time required thereby;
and
(e) There are no actions, suits, audits, investigations
or proceedings pending or, to the knowledge of the Company, threatened against
the Company in any court or before any governmental commission, board or
authority which, if adversely determined, will have a material adverse effect
on the ability of the Company to perform its obligations under this Warrant.
12. Modification and Waiver. This Warrant and any provision
hereof may be changed, waived, discharged or terminated only by an instrument
in writing signed by the party against which enforcement of the same is sought.
13. Notices. Any notice, request, communication or other document
required or permitted to be given or delivered to the holder hereof or the
Company shall be delivered, or shall be sent by certified or registered mail,
postage prepaid, to each such holder at its address
11
31
as shown on the books of the Company or to the Company at the address indicated
therefor on the signature page of this Warrant.
14. Binding Effect on Successors. This Warrant shall be binding
upon any corporation succeeding the Company by merger, consolidation or
acquisition of all or substantially all of the Company's assets, and all of the
obligations of the Company relating to the Common Stock issuable upon the
exercise or conversion of this Warrant shall survive the exercise, conversion
and termination of this Warrant and all of the covenants and agreements of the
Company shall inure to the benefit of the successors and assigns of the holder
hereof. The Company will, at the time of the exercise or conversion of this
Warrant, in whole or in part, upon request of the holder hereof but at the
Company's expense, acknowledge in writing its continuing obligation to the
holder hereof in respect of any rights (including, without limitation, any
right to registration of the shares of Registrable Securities) to which the
holder hereof shall continue to be entitled after such exercise or conversion
in accordance with this Warrant; provided, that the failure of the holder
hereof to make any such request shall not affect the continuing obligation of
the Company to the holder hereof in respect of such rights.
15. Lost Warrants or Stock Certificates. The Company covenants to
the holder hereof that, upon receipt of evidence reasonably satisfactory to the
Company of the loss, theft, destruction or mutilation of this Warrant or any
stock certificate and, in the case of any such loss, theft or destruction, upon
receipt of an indemnity reasonably satisfactory to the Company, or in the case
of any such mutilation upon surrender and cancellation of such Warrant or stock
certificate, the Company will make and deliver a new Warrant or stock
certificate, of like tenor, in lieu of the lost, stolen, destroyed or mutilated
Warrant or stock certificate.
16. Descriptive Headings. The descriptive headings of the several
paragraphs of this Warrant are inserted for convenience only and do not
constitute a part of this Warrant.
17. Governing Law. This Warrant shall be construed and enforced
in accordance with, and the rights of the parties shall be governed by, the
laws of the State of California.
18. Survival of Representations, Warranties and Agreements. All
representations and warranties of the Company and the holder hereof contained
herein shall survive the Date of Grant, the exercise or conversion of this
Warrant (or any part hereof) or the termination or expiration of rights
hereunder. All agreements of the Company and the holder hereof contained
herein shall survive indefinitely until, by their respective terms, they are no
longer operative.
19. Remedies. In case any one or more of the covenants and
agreements contained in this Warrant shall have been breached, the holders
hereof (in the case of a breach by the Company), or the Company (in the case of
a breach by a holder), may proceed to protect and enforce their or its rights
either by suit in equity and/or by action at law, including, but not limited
to, an action for damages as a result of any such breach and/or an action for
specific performance of any such covenant or agreement contained in this
Warrant.
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32
20. Value. The Company and the holder of this Warrant agree that
the value of this Warrant and the Other Warrants on the Date of Grant is
$100.00.
21. Acceptance. Receipt of this Warrant by the holder hereof
shall constitute acceptance of and agreement to the foregoing terms and
conditions.
22. No Impairment of Rights. The Company will not, by amendment
of its Charter or through any other means, avoid or seek to avoid the
observance or performance of any of the terms of this Warrant, but will at all
times in good faith assist in the carrying out of all such terms and in the
taking of all such action as may be necessary or appropriate in order to
protect the rights of the holder of this Warrant against impairment.
CALYPTE BIOMEDICAL CORPORATION
By ___________________________________
Title
Address: 1440 Fourth Street
Berkeley, CA 94701
Date: ________________________ 199_
13
33
EXHIBIT A
NOTICE OF EXERCISE
To: Calypte Biomedical Corporation
1. The undersigned hereby elects to purchase _________________
shares of Common Stock of Calypte Biomedical Corporation pursuant to the terms
of the attached Warrant, and tenders herewith payment of the purchase price of
such shares in full.
2. Please issue a certificate or certificates representing said
shares in the name of the undersigned or in such other name or names as are
specified below:
(Name)
(Address)
3. The undersigned represents that the aforesaid shares are being
acquired for the account of the undersigned for investment and not with a view
to, or for resale in connection with, the distribution thereof and that the
undersigned has no present intention of distributing or reselling such shares.
In support thereof, the undersigned has executed an Investment Representation
Statement attached hereto as Schedule 1.
---------------------------------
(Signature)
----------------------------
(Date)
14
34
EXHIBIT A-1
NOTICE OF EXERCISE
To: Calypte Biomedical Corporation (the "Company")
1. Contingent upon and effective immediately prior to the closing
(the "Closing") of the Company's public offering contemplated by the
Registration Statement on Form S-____________, filed __________ 199__, the
undersigned hereby elects to purchase _____ shares of Common Stock of the
Company (or such lesser number of shares as may be sold on behalf of the
undersigned at the Closing) pursuant to the terms of the attached Warrant.
2. Please deliver to the custodian for the selling shareholders a
stock certificate representing such ________ shares.
3. The undersigned has instructed the custodian for the selling
shareholders to deliver to the Company $______________ or, if less, the net
proceeds due the undersigned from the sale of shares in the aforesaid public
offering. If such net proceeds are less than the purchase price for such
shares, the undersigned agrees to deliver the difference to the Company prior
to the Closing.
-------------------------------------
(Signature)
--------------------
(Date)
15
35
Schedule I
INVESTMENT REPRESENTATION STATEMENT
Purchaser:
Company: Calypte Biomedical Corporation
Security: Common Stock
Amount:
Date:
In connection with the purchase of the above-listed securities (the
"Securities"), the undersigned (the "Purchaser") represents to the Company as
follows:
(a) The Purchaser is aware of the Company's business affairs and
financial condition, and has acquired sufficient information about the Company
to reach an informed and knowledgeable decision to acquire the Securities. The
Purchaser is purchasing the Securities for its own account for investment
purposes only and not with a view to, or for the resale in connection with, any
"distribution" thereof for purposes of the Securities Act of 1933, as amended
(the "Act").
(b) The Purchaser understands that the Securities have not been
registered under the Securities Act in reliance upon a specific exemption
therefrom, which exemption depends upon, among other things, the bona fide
nature of the Purchaser's investment intent as expressed herein. In this
connection, the Purchaser understands that, in the view of the Securities and
Exchange Commission ("SEC"), the statutory basis for such exemption may be
unavailable if the Purchaser's representation was predicated solely upon a
present intention to hold these Securities for the minimum capital gains period
specified under tax statutes, for a deferred sale, for or until an increase or
decrease in the market price of the Securities, or for a period of one year or
any other fixed period in the future.
(c) The Purchaser further understands that the Securities must be
held indefinitely unless subsequently registered under the Act or unless an
exemption from registration is otherwise available. Moreover, the Purchaser
understands that the Company is under no obligation to register the Securities
except as set forth in the Warrant under which the Securities are being
acquired. In addition, the Purchaser understands that the certificate
evidencing the Securities will be imprinted with the legend referred to in the
Warrant under which the Securities are being purchased.
(d) The Purchaser is aware of the provisions of Rule 144 and 144A,
promulgated under the Act, which, in substance, permit limited public resale of
"restricted securities"
16
36
acquired, directly or indirectly, from the issuer thereof (or from an affiliate
of such issuer), in a non-public offering subject to the satisfaction of
certain conditions, if applicable, including, among other things: The
availability of certain public information about the Company, the resale
occurring not less than two years after the party has purchased and paid for
the securities to be sold; the sale being made through a broker in an
unsolicited "broker's transaction" or in transactions directly with a market
maker (as said term is defined under the Securities Exchange Act of 1934, as
amended) and the amount of securities being sold during any three-month period
not exceeding the specified limitations stated therein.
(e) The Purchaser further understands that at the time it wishes
to sell the Securities there may be no public market upon which to make such a
sale, and that, even if such a public market then exists, the Company may not
be satisfying the current public information requirements of Rule 144 and 144A,
and that, in such event, the Purchaser may be precluded from selling the
Securities under Rule 144 and 144A even if the two-year minimum holding period
had been satisfied.
(f) The Purchaser further understands that in the event all of the
requirements of Rule 144 and 144A are not satisfied, registration under the
Act, compliance with Regulation A, or some other registration exemption will be
required; and that, notwithstanding the fact that Rule 144 is not exclusive,
the Staff of the SEC has expressed its opinion that persons proposing to sell
private placement securities other than in a registered offering and otherwise
than pursuant to Rule 144 will have a substantial burden of proof in
establishing that an exemption from registration is available for such offers
or sales, and that such persons and their respective brokers who participate in
such transactions do so at their own risk.
Purchaser:
------------------------------------
Date: 199
---------------------- ----
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37
Exhibit B
Restated Articles of Incorporation, as Amended
18
38
Exhibit C
Section 9 of Series D Preferred Stock Agreement
19
39
EXHIBIT B
LANDLORD WAIVER
40
RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
MMC/GATX PARTNERSHIP NO. I
c/o GATX CAPITAL CORPORATION, Agent
Four Embarcadero Center, Suite 2200
San Francisco, CA 94111
Attn: Contract Administration
CONSENT TO REMOVAL OF PERSONAL PROPERTY
KNOW ALL PERSONS BY THESE PRESENTS:
(i) The undersigned has an interest as owner and landlord in the
following described real property (the "Real Property"):
That certain real property in the County of Alameda, State of
California, with the street address of _________________ and more fully
described as:
SEE ATTACHMENT 1 ATTACHED HERETO FOR FULL LEGAL DESCRIPTION
(ii) Calypte Biomedical Corporation, a California corporation
("Lessee"), has entered into or will enter into a Master Equipment Lease
Agreement with MMC/GATX Partnership No. I ("Lessor") dated as of August 20,
1993 (the "Lease Agreement") and certain Schedules related thereto
(collectively the "Lease").
(iii) Lessor, as a condition to entering into the Lease Agreement,
requires that the undersigned consent to the removal by Lessor of the equipment
and other assets covered by the Lease (hereinafter called "Equipment") from the
Real Property, no matter how it is affixed thereto, and to the other matters
set forth below.
NOW, THEREFORE, for good and sufficient consideration, receipt of
which is hereby acknowledged, the undersigned consents to the placing of the
Equipment on the Real Property, and agrees with Lessor as follows:
41
1. Undersigned waives and releases each and every right which
undersigned now has, under laws of California or by virtue of the lease for the
Real Property now in effect, to levy or distrain upon for rent, in arrears, in
advance or both, or to claim or assert title to the Equipment that is already
on said Real Property, or may hereafter be delivered or installed thereon.
2. The Equipment shall be considered to be personal property and
shall not be considered part of the Real Property regardless of whether or by
what means it is or may become attached or affixed to the Real Property.
3. The undersigned will permit Lessor to enter upon the Real
Property for the purpose of exercising any right it may have under the terms of
the Lease or otherwise, including, without limitation, the right to remove the
Equipment; provided, however, that if Lessor, in removing the Equipment damages
any improvements of the undersigned on the Real Property, Lessor will, at its
expense, cause same to be repaired.
4. This agreement shall be binding upon the heirs, successors and
assigns of the undersigned and shall inure to the benefit of Lessor and its
successors and assigns. Upon any sale, transfer or other assignment of the
Real Property, the undersigned shall notify the transferee of the existence of
this agreement and that it is binding on the transferee.
IN WITNESS WHEREOF, the undersigned has executed this instrument at _________,
this ___ day of _____, 19__.
By: _______________________________
Title: _______________________________
Date: _______________________________
The foregoing Consent must be acknowledged before a Notary Public.
[ATTACH NOTARY JURAT]
2
42
ATTACHMENT 1
LEGAL DESCRIPTION OF PREMISES
[To Be Provided By Tenant]
43
State of_____________________)
)
County of____________________)
On ________________________, 19_____ before me, the undersigned,
personally appeared _______________, personally known to me (or proved to me on
the basis of satisfactory evidence) to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon
behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature ____________________________________ (Seal)
State of_____________________)
)
County of____________________)
On ________________________, 19_____ before me, the undersigned,
personally appeared ______________, personally known to me (or proved to me on
the basis of satisfactory evidence) to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon
behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature ____________________________________ (Seal)
44
EXHIBIT C
PURCHASE ORDER AND INVOICE ASSIGNMENT
45
PURCHASE ORDER AND INVOICE ASSIGNMENT
THIS PURCHASE ORDER ASSIGNMENT, dated as of _____________, 199_ (this
"Assignment"), between Calypte Biomedical Corporation ("Assignor") and MMC/GATX
Partnership No. I ("Assignee");
WITNESSETH:
WHEREAS, Assignor has submitted its Purchase Orders and Invoices listed
in Schedule 1 hereto (collectively, the "Purchase Orders"), to ____________ (the
"Vendor") concerning certain Units of equipment (the "Units") listed in Schedule
1 hereto to be subject to a Master Equipment Lease Agreement, dated as of August
20, 1993 (the "Lease"), between Assignor and Assignee (all terms used but not
otherwise defined herein shall have the meaning given to them in the Lease):
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties hereto agree as follows:
1. Assignor does hereby sell, assign, transfer and set over unto
Assignee, all of the Assignor's rights to and interests in the Purchase Orders
as and to the extent that the same relates to the Units. The assignment herein
shall include, without limitation, the right of Assignee to purchase the Units
pursuant to the Purchase Orders and to take title to the Units, all claims for
damages in respect of the Units arising as a result of any default by Vendor
under the Purchase Orders, together with any and all rights of Assignor to
compel performance of the terms of the Purchase Orders in respect of the Units.
2. The exercise by Assignee of any of the rights assigned
hereunder shall not release Assignor from any of its duties or obligations to
Vendor under the Purchase Orders except to the extent that such exercise by
Assignee shall constitute performance of such duties and obligations.
3. Upon satisfaction of the conditions set forth in the
applicable Schedule to the Lease with respect to the Units, Assignee shall
purchase such Unit by paying or causing to be paid, by check mailed or
delivered to Vendor, on such date or thereafter as permitted by Vendor, an
amount equal to the purchase price of the Unit, as such amount may be adjusted
in accordance with the terms of the Purchase Orders and reflected on invoices
prepared by Vendor to Assignee on or before the date of delivery and acceptance
of the Unit.
4. Assignor agrees that it will, at any time and from time to
time, upon the written consent of Assignee, promptly and duly exercise and
deliver any and all such further instruments and documents and take such
further action as Assignee may reasonably request
46
in order that Assignee may obtain the full benefits of this Agreement and of
the rights and powers herein granted.
5. Assignor does hereby represent and warrant that the Purchase
Orders are in full force and effect and that Assignor is not in default under
any of them. Assignor does hereby further represent and warrant that Assignor
has not assigned or pledged, and so long as this Assignment shall remain in
effect, will not assign or pledge, the whole or any part of the rights hereby
assigned or any of its rights with respect to the Units under the Purchase
Orders to anyone other than Assignee.
IN WITNESS WHEREOF, the parties hereto have caused this Purchase Order
Assignment to be duly executed as of the day and year first above written.
CALYPTE BIOMEDICAL CORPORATION MMC/GATX PARTNERSHIP NO. I
(Lessee) (Lessor)
By GATX Capital Corporation, Agent
By By
__________________________ _________________________________
Title Title
______________________ ______________________________
Acknowledged and Consented to this
____________________ day of ____________________, 199______
__________________________________________________(Vendor)
By: ___________________________________________________
Title: ___________________________________________________
47
SCHEDULE I
TO
PURCHASE ORDER AND INVOICE ASSIGNMENT
48
EXHIBIT D
BILL OF SALE
49
BILL OF SALE
For valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, CALYPTE BIOMEDICAL CORPORATION ("Seller") does hereby
sell, grant, transfer and deliver to MMC/GATX Partnership No. I ("Buyer"), all
of Seller's right, title and interest in and to the property listed on Schedule
1 attached hereto (the "Equipment"), together with all warranties, guarantees
and indemnities owned by Seller with respect to the Equipment (the "Equipment
Warranties"), to have and to hold the Equipment and the Equipment Warranties
forever.
Seller covenants and warrants that:
(1) it is the owner of, and has absolute title to, the Equipment and the
Equipment Warranties, which, as of the date hereof, are free and clear of all
claims, liens and encumbrances;
(2) it has not made any prior sale, assignment, or transfer of the
Equipment or the Equipment Warranties;
(3) it has the present right, power and authority to sell the Equipment
and the Equipment Warranties to Buyer; and
(4) all action has been taken which is required to make this Bill of Sale
a legal, valid and binding obligation of Seller.
Seller shall forever warrant and defend the sale of the Equipment and the
Equipment Warranties to Buyer, its successors and assigns, against all claims,
liens and encumbrances and against any and every person or persons claiming any
interest in the Equipment or the Equipment Warranties, except with respect to
any claims, liens or encumbrances caused by any action of Buyer not
contemplated under that certain Master Equipment Lease Agreement dated as of
August 20, 1993 by and between Buyer and Seller (together with all Schedules
thereto, the "Lease") or under any agreement, instrument or other document
delivered in connection with the Lease.
This Bill of Sale shall be binding on the successors and assigns of the Seller
and shall inure to the benefit of the successors and assigns of Buyer.
Executed as of ______________________, 199__, at ___________________________.
CALYPTE BIOMEDICAL CORPORATION
By:_________________________________
Title:______________________________
50
ANNEX A
TO
BILL OF SALE
51
EXHIBIT E
SCHEDULE NO._______
TRUE LEASE
This Schedule No.______________ (this "Schedule"), dated
_____________, 199_ (such date being the "Delivery Date" for this Schedule), is
a part of the Master Equipment Lease Agreement, dated as of August 20, 1993
(the "Lease"), between MMC/GATX PARTNERSHIP NO. I ("Lessor") and CALYPTE
BIOMEDICAL CORPORATION ("Lessee") and is incorporated therein by this
reference. The terms used in this Schedule shall have the meanings given to
them in the Lease unless otherwise defined herein.
1. Description and Cost of Units
The Units subject to this Schedule are described in Annex A
hereto. The Lessor's Cost for this Schedule is:
$________________________.
2. Acceptance; Obligations
Lessee confirms that on the Delivery Date hereof (i)
all of the Units described in Annex A attached hereto were duly accepted by
Lessee and became subject to the Lease; and (ii) Lessee became obligated to
make Rental Payments to Lessor and perform certain other obligations with
respect to such Units as provided in the Lease and this Schedule.
3. Rent
(a) Commencing on ________________________, 19___ (the
"Rent Commencement Date") and on the first day of each month thereafter, the
rent for each Unit shall be paid by Lessee in advance by check (or if requested
by Lessor, by wire transfer), to the location prescribed by Lessor in writing,
in forty-two (42) consecutive installments, each of the first twelve (12) of
which shall be calculated based upon a Rent Factor of _____________________ %
of the Lessor's Cost for this Schedule and each of the following thirty (30) of
which shall be calculated based upon a Rent Factor of _______________ % of the
Lessor's Cost for this Schedule, which rentals are:
$ ___________________ for each of the first 12 such installments, and
$ ___________________ for each of the following 30 such installments.
(b) The Lease Term for the Units subject to this Schedule
is 42 months and commences on the Rent Commencement Date. The Lease Term for
the Units subject to this Schedule shall expire on:
_____________________, 199___
52
(c) The Interim Rental Payment for the period from the
Delivery Date of this Schedule through the Rent Commencement Date, which is due
on the Delivery date, is:
$ ____________________________.
4. Conditions. Lessor's obligations under the Lease and
this Schedule are subject to the prior satisfaction of the following conditions
on or before the Delivery Date of this Schedule:
(a) Lessor shall have received, in form and substance
satisfactory to Lessor:
(i) All acceptable waivers of landlords and/or
mortgagees, substantially in the form of Exhibit B to the Lease.
(ii) To the extent Lessor deems it necessary, a release or
other arrangement with any other lessor or lender to the Company to
insure that there will be no impairment of Lessor's interest in the
Units subject to this or other Schedules.
(iii) A sales tax exemption or other similar certificate
from Lessee with respect to any Units included in this Schedule, but
not placed in service by Lessee before the Delivery Date of this
Schedule.
(iv) Copies of invoices, purchase orders and cancelled
checks relating to all Units being placed under the Lease pursuant to
a sale/leaseback on the Delivery Date of this Schedule and/or a
Purchase Order and Invoice Assignment from Lessee to Lessor
substantially in the form of Exhibit C to the Lease, instead of copies
of cancelled checks, for all Units to be purchased by Lessor directly
from the vendor.
(v) For all sales of Units by Lessee to Lessor, a Bill of
Sale, substantially in the form of Exhibit D to the Lease.
(vi) An executed copy of each manufacturer's service
contract entered into by Lessee pursuant to Section 9 of the Lease.
(b) Lessee shall have filed or recorded, to the
satisfaction of Lessor, all instruments and documents, including, but not
limited to, Financing Statements on Form UCC-1 and Releases and Termination
Statements on Form UCC-2, then deemed necessary by Lessor to preserve and
protect its rights hereunder, under the Uniform Commercial Code (including the
termination of any after-acquired property clause of third parties with respect
to any Unit) and, if applicable, not less than ten days before the Delivery
Date, a notice of the proposed transfer to Lessor by Lessee of title to the
Units to be placed under the Lease on such Delivery Date shall have been
published as and to the extent required by Section 3440 of the Civil Code of
the State of California.
2
53
(c) Lessor shall have received all other documents and
Lessee shall have performed all other acts as Lessor shall have reasonably
requested to consummate the transaction contemplated by this Schedule.
(d) Except with the prior consent of Lessor which shall
not be unreasonably withheld, (i) Lessor's Cost for the Units subject to this
Schedule shall be equal to or exceed the Minimum Funding Amount, (ii) Lessor's
Cost for the Units subject to this Schedule when aggregated with Lessor's Cost
for all Units under all previously funded Schedules shall not exceed the
Lessor's Commitment set forth on the cover page of the Lease, and (iii) the
funding contemplated by this Schedule when aggregated with all previous
fundings under the Lease shall not exceed the Maximum Number of Fundings.
(e) Except with the prior written consent of Lessor which
shall not be unreasonably withheld, the aggregate of Lessor's Cost of all Units
subject to this Schedule and all Schedules previously made subject to the Lease
which consist of tenant improvements, computer software, equipment manufactured
specially for Lessee and/or delivery and installation costs shall not exceed
17.39% ($200,000 of Lessor's Cost if the entire Lessor's Commitment is funded)
of the total Lessor's Cost of Equipment funded.
(f) The Delivery Date of this Schedule shall not be later
than the Commitment Termination Date.
(g) On the Delivery Date of this Schedule no Event of
Default or event, which with the passage of time or the giving of notice or
both would constitute an Event of Default, shall exist.
(h) Except with the prior written consent of Lessor which
shall not be unreasonable withheld, all of the Units listed on Annex A shall
consist of Eligible Equipment.
5. Representations and Warranties. Lessee hereby makes
the representations and warranties set forth in Section 14 of the Lease.
6. Payments. Pursuant to Section 16(h) of the Lease,
all payments shall be made to Lessor c/o GATX Capital Corporation, as Agent,
Box 71316, Chicago, Illinois 60694 unless otherwise indicated in a writing
signed by Lessor.
3
54
This Schedule is hereby duly executed by the parties hereto as of the
date first written above.
MMC/GATX PARTNERSHIP NO. I
By GATX Capital Corporation, as Agent
By _____________________________________
Title ___________________________________
CALYPTE BIOMEDICAL CORPORATION
By _____________________________________
Title ___________________________________
LESSEE'S ADDRESS
FOR NOTICES:
1440 Fourth Street
Berkeley, CA 94710
ATTN: Paul Siegel
Chief Financial Officer
Annex A - Description of Units
Annex B - Stipulated Loss Values
Annex C - Exceptions to Representations and Warranties
4
55
ANNEX A
DESCRIPTION OF UNITS
Units are Located at Lessee's Offices at
______________________________________, CA ________________.
Major
Equipment Description Manufacturer Identification Lessor's
Category of Unit or Vendor or Serial No. Cost
-------- ------- --------- ------------ ----
Subtotal By
Equipment Category $_______________
5
56
ANNEX B
STIPULATED LOSS VALUES
Rental Stipulated Loss Value
Payment Date Percentage of Lessor's Cost
- ------------ ---------------------------
Thereafter _________________________________ *
* If Lessee renews the Lease, the Stipulated Loss Value during any
extended Term shall be an amount equal to the fair market value of the Units as
at the end of the applicable initial lease term, as reasonably determined by
Lessor, or in the event of disagreement between Lessor and Lessee, as
determined by the independent appraiser selected under the provisions of
Section 4(b) of the Lease; provided, however, that such Stipulated Loss Value
shall not be less than 25% of Lessor's Cost of the Units.
6
57
ANNEX C
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES
7
58
EXHIBIT F
SECURITY DEPOSIT PLEDGE AGREEMENT
59
SECURITY DEPOSIT PLEDGE AGREEMENT
AGREEMENT made and entered into as of August 20, 1993, by and between
Calypte Biomedical Corporation, a California corporation, with a principal
place of business at 1440 Fourth Street, Berkeley, CA 94710 ("Pledgor") and
MMC/GATX Partnership No. I, a California general partnership, with its place of
business at c/o GATX Capital Corporation, Four Embarcadero Center, San
Francisco, CA 94111, as Agent (the "Agent" or "Pledgee").
WITNESSETH
In consideration of, and as an inducement for Pledgee (i) to enter
into and advance funds under the Equipment Lease Agreement, dated as of August.
20, 1993 (as amended from time to time, the "Lease"), with Pledgor and one or
more Schedules in connection with the Lease (the "Schedules"), and (ii) to
secure the payment of rentals and performance of all Pledgor's other
obligations under this Agreement, the Lease and all exhibits and Schedules
thereto (collectively, the "Obligations"), Pledgor shall deposit and pledge
with Pledgee, on the Delivery Date of each Schedule, a cash collateral security
deposit (the "Security Deposit") in the amount of six percent (6%) of Lessor's
Cost under such Schedule (such terms and other terms not otherwise defined
herein having the meaning therefor as set forth in the Lease or the Schedules).
NOW THEREFORE, it is agreed:
1. Delivery of Deposit; Earnings. Pledgor shall, on or before
the Delivery Date of each Schedule, deliver the Security Deposit for such
Schedule to Pledgee to secure the due and punctual payment and performance of
the Obligations. Pledgor will receive simple interest on the Security Deposit
at a rate equal to four and one-half percent (4.5%) per annum (the
"Earnings"), such Earnings to be paid to Pledgor when and if the Security
Deposit is returned to Pledgor in accordance with the terms hereof. The Agent
may commingle the Security Deposit and Earnings with its own funds or funds of
the Pledgee or otherwise deposit such Security Deposit in any bank selected by
Pledgee.
2. Grant of Security. All funds held by the Pledgee,
representing the Security Deposit and any Earnings, shall constitute collateral
security for the performance by Pledgor of all its Obligations. Accordingly,
Pledgor assigns, delivers, pledges and conveys to Pledgee, and grants to
Pledgee a first priority, perfected security interest in and to the Security
Deposit and all Earnings for the prompt and unconditional fulfillment of the
Obligations.
1
60
3. Deposit Defaults. If any default or Event of Default under
the Lease (each being a "Deposit Default") by Pledgor shall occur and be
continuing, earnings accrued on the Security Deposit for Pledgor's benefit
shall cease on notice of such Deposit Default to Pledgor. Pledgee may
thereupon apply the Security Deposit and any Earnings (accrued to the date of
such default notice), in such manner as Pledgee reasonably determines, towards
the satisfaction of the Obligations, including the payment of all costs and
expenses incurred by Pledgee as a result of any Deposit Default.
4. Enforcement. Pledgee shall have no duty to commence an action against
or seek recourse from Pledgor in the event of a Deposit Default first before
enforcing the provisions of this Agreement. The Obligations of Pledgor
shall be absolute and unconditional, and shall remain in force and effect
without regard to, and shall not be released or discharged or in any way
affected by:
(a) any amendment or modification of or supplement to
the Lease or any exhibit or Schedule thereto, or to this Agreement;
(b) any exercise or non-exercise of any right, remedy or
privilege under or in respect to this Agreement, the Lease or any exhibit or
Schedule thereto, or any other instrument provided for in any thereof, or any
waiver, consent, indulgence or actions or inaction with respect to any such
instrument;
(c) any bankruptcy, insolvency, reorganization,
arrangement, readjustment, composition, liquidation or similar proceeding of or
against Pledgor; or
(d) any payment received by Pledgee and subsequently
refunded or returned to Pledgor or anyone on behalf of Pledgor.
5. Return of Security Deposit. So long as no Event of Default
shall have occurred and be continuing under the Lease, at the end of the Term
of each Schedule, the Security Deposit with respect to such Schedule shall be
applied first to Pledgor's end-of-Term obligations to Pledgee with respect to
such Schedule, and the balance (if any) of such Security Deposit with respect
to such Schedule and Earnings attributable thereto (less any portion thereof
applied or otherwise utilized pursuant to this Agreement) shall be delivered to
Pledgor.
6. Further Assurances. Pledgor will promptly execute and deliver
to Pledgee such further reasonable documents and take such further reasonable
action as Pledgee may request in order to more effectively carry out the intent
and purpose of this Agreement or an assignment of Pledgee's interest herein.
7. Notices. Notices required or permitted hereunder shall be
given in accordance with the Lease.
2
61
8. Amendments and Supplements. No agreement shall be effective
to amend, supplement or discharge this Agreement in whole or in part unless
such agreement is in writing, signed by the parties hereto.
9. Assignability. This Agreement shall be binding upon and shall
inure to the benefit of the successors and assigns of the parties hereto.
Pledgor hereby acknowledges that Lessor's rights under this Agreement may be
assigned at any time to any person having an interest in the Lease.
10. Governing Law. This Agreement shall be governed by and
construed under the laws of the State of California.
11. Assignment. Pledgor shall not transfer or assign, in whole or
in part, any of its rights under this Agreement. Pledgee shall have the
absolute right to transfer or assign to any person, firm, partnership,
corporation or other entity, for security or otherwise, any or all of Pledgee's
obligations, benefits and interests under this Agreement without the consent of
or notice to Pledgor.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed as of the date first above written.
MMC/GATX PARTNERSHIP NO. I
By GATX CAPITAL CORPORATION
as Agent for Pledgee
By:
-----------------------------
Its:
----------------------------
CALYPTE BIOMEDICAL CORPORATION,
Pledgor
By:
-----------------------------
Its:
----------------------------
3
62
SECURITY DEPOSIT PLEDGE AGREEMENT
AGREEMENT made and entered into as of August 20, 1993, by and between
Calypte Biomedical Corporation, a California corporation, with a principal
place of business at 1440 Fourth Street, Berkeley, CA 94710 ("Pledgor") and
MMC/GATX Partnership No. I, a California general partnership, with its place of
business at c/o GATX Capital Corporation, Four Embarcadero Center, San
Francisco, CA 94111, as Agent (the "Agent" or "Pledgee").
WITNESSETH
In consideration of, and as an inducement for Pledgee (i) to enter into
and advance funds under the Equipment Lease Agreement, dated as of August 20,
1993 (as amended from time to time, the "Lease"), with Pledgor and one or more
Schedules in connection with the Lease (the "Schedules"), and (ii) to secure
the payment of rentals and performance of all Pledgor's other obligations under
this Agreement, the Lease and all exhibits and Schedules thereto
(collectively, the "Obligations"), Pledgor shall deposit and pledge with
Pledgee, on the Delivery Date of each Schedule, a cash collateral security
deposit (the "Security Deposit") in the amount of six percent (6%) of Lessor's
Cost under such Schedule (such terms and other terms not otherwise defined
herein having the meaning therefor as set forth in the Lease or the Schedules).
NOW THEREFORE, it is agreed:
1. Delivery of Deposit; Earnings. Pledgor shall, on or before
the Delivery Date of each Schedule, deliver the Security Deposit for such
Schedule to Pledgee to secure the due and punctual payment and performance of
the Obligations. Pledgor will receive simple interest on the Security Deposit
at a rate equal to four and one-half percent (4.5%) per annum (the "Earnings"),
such Earnings to be paid to Pledgor when and if the Security Deposit is
returned to Pledgor in accordance with the terms hereof. The Agent may
commingle the Security Deposit and Earnings with its own funds or funds of the
Pledgee or otherwise deposit such Security Deposit in any bank selected by
Pledgee.
2. Grant of Security. All funds held by the Pledgee,
representing the Security Deposit and any Earnings, shall constitute collateral
security for the performance by Pledgor of all its Obligations. Accordingly,
Pledgor assigns, delivers, pledges and conveys to Pledgee, and grants to
Pledgee a first priority, perfected security interest in and to the Security
Deposit and all Earnings for the prompt and unconditional fulfillment of the
Obligations.
1
63
3. Deposit Defaults. If any default or Event of Default under
the Lease (each being a "Deposit Default") by Pledgor shall occur and be
continuing, earnings accrued on the Security Deposit for Pledgor's benefit
shall cease on notice of such Deposit Default to Pledgor. Pledgee may
thereupon apply the Security Deposit and any Earnings (accrued to the date of
such default notice), in such manner as Pledgee reasonably determines, towards
the satisfaction of the Obligations, including the payment of all costs and
expenses incurred by Pledgee as a result of any Deposit Default.
4. Enforcement. Pledgee shall have no duty to commence an action
against or seek recourse from Pledgor in the event of a Deposit Default first
before enforcing the provisions of this Agreement. The Obligations of Pledgor
shall be absolute and unconditional, and shall remain in force and effect
without regard to, and shall not be released or discharged or in any way
affected by:
(a) any amendment or modification of or supplement to
the Lease or any exhibit or Schedule thereto, or to this Agreement;
(b) any exercise or non-exercise of any right, remedy or
privilege under or in respect to this Agreement, the Lease or any exhibit or
Schedule thereto, or any other instrument provided for in any thereof, or any
waiver, consent, indulgence or actions or inaction with respect to any such
instrument;
(c) any bankruptcy, insolvency, reorganization,
arrangement, readjustment, composition, liquidation or similar proceeding of or
against Pledgor; or
(d) any payment received by Pledgee and subsequently
refunded or returned to Pledgor or anyone on behalf of Pledgor.
5. Return of Security Deposit. So long as no Event of Default
shall have occurred and be continuing under the Lease, at the end of the Term
of each Schedule, the Security Deposit with respect to such Schedule shall be
applied first to Pledgor's end-of-Term obligations to Pledgee with respect to
such Schedule, and the balance (if any) of such Security Deposit with respect
to such Schedule and Earnings attributable thereto (less any portion thereof
applied or otherwise utilized pursuant to this Agreement) shall be delivered to
Pledgor.
6. Further Assurances. Pledgor will promptly execute and deliver
to Pledgee such further reasonable documents and take such further reasonable
action as Pledgee may request in order to more effectively carry out the intent
and purpose of this Agreement or an assignment of Pledgee's interest herein.
7. Notices. Notices required or permitted hereunder shall be
given in accordance with the Lease.
2
64
8. Amendments and Supplements. No agreement shall be effective
to amend, supplement or discharge this Agreement in whole or in part unless
such agreement is in writing, signed by the parties hereto.
9. Assignability. This Agreement shall be binding upon and shall
inure to the benefit of the successors and assigns of the parties hereto.
Pledgor hereby acknowledges that Lessor's rights under this Agreement may be
assigned at any time to any person having an interest in the Lease.
10. Governing Law. This Agreement shall be governed by and
construed under the laws of the State of California.
11. Assignment. Pledgor shall not transfer or assign, in whole or
in part, any of its rights under this Agreement. Pledgee shall have the
absolute right to transfer or assign to any person, firm, partnership,
corporation or other entity, for security or otherwise, any or all of Pledgee's
obligations, benefits and interests under this Agreement without the consent of
or notice to Pledgor.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed as of the date first above written.
MMC/GATX PARTNERSHIP NO. I
By GATX CAPITAL CORPORATION
as Agent for Pledgee
By: [SIG]
-----------------------------
Its: VP
----------------------------
CALYPTE BIOMEDICAL CORPORATION,
Pledgor
By: [SIG]
-----------------------------
ITS: CFO
----------------------------
3
65
[LETTERHEAD]
VIA CALIFORNIA OVERNIGHT
Mr. Paul Siegel
Chief Financial Officer
Calypte Biomedical Corporation
1440 Fourth Street
Berkeley, California 94710
RE: MMC/GATX PARTNERSHIP NO. I - CALYPTE BIOMEDICAL CORPORATION
Dear Paul:
Enclosed are the following documents:
1. Original lessee's copy of Schedule No. 1 dated October 4, 1993.
2. Original lessee's copy of Schedule No. 2 dated October 4, 1993.
3. Original lessee's copy of Schedule No. 3 dated October 4, 1993.
4. Copy of Proof of Publication of the sale-leaseback notice.
5. Copy of the three financing statements filed in connection with the
above transaction.
Please call me or Tom Klein if you have questions.
Very truly yours,
[SIG]
William S. Veatch
WSV:ogw
Enclosures.
cc: Thomas Klein, Esq. - w/enc.
James V. Mitchell - w/o enc.
66
SCHEDULE NO. 1
TRUE LEASE
This Schedule No. 1 (this "Schedule"), dated October 4, 1993
(such date being the "Delivery Date" for this Schedule), is a part of the
Master Equipment Lease Agreement, dated as of August 20, 1993 (the "Lease"),
between MMC/GATX PARTNERSHIP NO. I ("Lessor") and CALYPTE BIOMEDICAL
CORPORATION ("Lessee") and is incorporated therein by this reference. The
terms used in this Schedule shall have the meanings given to them in the Lease
unless otherwise defined herein.
1. Description and Cost of Units
The Units subject to this Schedule are described in Annex A
hereto. The Lessor's Cost for this Schedule is:
$ 38,012.90
2. Acceptance; Obligations
Lessee confirms that on the Delivery Date hereof (i) all of
the Units described in Annex A attached hereto were duly accepted by Lessee and
became subject to the Lease; and (ii) Lessee became obligated to make Rental
Payments to Lessor and perform certain other obligations with respect to such
Units as provided in the Lease and this Schedule.
3. Rent
(a) Commencing on October 4, 1993 (the "Rent Commencement
Date") and on the fourth day of each month thereafter, the rent for each Unit
shall be paid by Lessee in advance by check (or if requested by Lessor, by
wire transfer), to the location prescribed by Lessor in writing, in forty-two
(42) consecutive installments, each of the first twelve (12) of which shall be
calculated based upon a Rent Factor of 1.4946% of the Lessor's Cost for this
Schedule and each of the following thirty (30) of which shall be calculated
based upon a Rent Factor of 3.4825% of the Lessor's Cost for this Schedule,
which rentals are:
$ 568.14 for each of the first 12 such installments, and
$1,323.80 for each of the following 30 such installments.
(b) The Lease Term for the Units subject to this Schedule
is 42 months and commences on the Rent Commencement Date. The Lease Term for
the Units subject to this Schedule shall expire on:
April 3, 1997
67
(c) The Interim Rental Payment for the period from the
Delivery Date of this Schedule through the Rent Commencement Date, which is due
on the Delivery date, is:
$0.
4. Conditions. Lessor's obligations under the Lease and
this Schedule are subject to the prior satisfaction of the following conditions
on or before the Delivery Date of this Schedule:
(a) Lessor shall have received, in form and substance
satisfactory to Lessor:
(i) All acceptable waivers of landlords and/or mortgagees,
substantially in the form of Exhibit B to the Lease.
(ii) To the extent Lessor deems it necessary, a release or
other arrangement with any other lessor or lender to the Company to
insure that there will be no impairment of Lessor's interest in the
Units subject to this or other Schedules.
(iii) A sales tax exemption or other similar certificate
from Lessee with respect to any Units included in this Schedule, but
not placed in service by Lessee before the Delivery Date of this
Schedule.
(iv) Copies of invoices, purchase orders and cancelled
checks relating to all Units being placed under the Lease pursuant to a
sale/leaseback on the Delivery Date of this Schedule and/or a Purchase
Order and Invoice Assignment from Lessee to Lessor substantially in the
form of Exhibit C to the Lease, instead of copies of cancelled checks,
for all Units to be purchased by Lessor directly from the vendor.
(v) For all sales of Units by Lessee to Lessor, a Bill of
Sale, substantially in the form of Exhibit D to the Lease.
(vi) An executed copy of each manufacturer's service
contract entered into by Lessee pursuant to Section 9 of the Lease.
(b) Lessee shall have filed or recorded, to the
satisfaction of Lessor, all instruments and documents, including, but not
limited to, Financing Statements on Form UCC-1 and Releases and Termination
Statements on Form UCC-2, then deemed necessary by Lessor to preserve and
protect its rights hereunder, under the Uniform Commercial Code (including the
termination of any after-acquired property clause of third parties with respect
to any Unit) and, if applicable, not less than ten days before the Delivery
Date, a notice of the proposed transfer to Lessor by Lessee of title to the
Units to be placed under the Lease on such Delivery Date shall have been
published as and to the extent required by Section 3440 of the Civil Code of
the State of California.
2
68
(c) Lessor shall have received all other documents and
Lessee shall have performed all other acts as Lessor shall have reasonably
requested to consummate the transaction contemplated by this Schedule.
(d) Except with the prior consent of Lessor which shall
not be unreasonably withheld, (i) Lessor's Cost for the Units subject to this
Schedule shall be equal to or exceed the Minimum Funding Amount, (ii) Lessor's
Cost for the Units subject to this Schedule when aggregated with Lessor's Cost
for all Units under all previously funded Schedules shall not exceed the
Lessor's Commitment set forth on the cover page of the Lease, and (iii) the
funding contemplated by this Schedule when aggregated with all previous
fundings under the Lease shall not exceed the Maximum Number of Fundings.
(e) Except with the prior written consent of Lessor which
shall not be unreasonably withheld, the aggregate of Lessor's Cost of all Units
subject to this Schedule and all Schedules previously made subject to the Lease
which consist of tenant improvements, computer software, equipment manufactured
specially for Lessee and/or delivery and installation costs shall not exceed
17.39% ($200,000 of Lessor's Cost if the entire Lessor's Commitment is funded)
of the total Lessor's Cost of Equipment funded.
(f) The Delivery Date of this Schedule shall not be later
than the Commitment Termination Date.
(g) On the Delivery Date of this Schedule no Event of
Default or event, which with the passage of time or the giving of notice or
both would constitute an Event of Default, shall exist.
(h) Except with the prior written consent of Lessor which
shall not be unreasonable withheld, all of the Units listed on Annex A shall
consist of Eligible Equipment.
5. Representations and Warranties. Lessee hereby makes
the representations and warranties set forth in Section 14 of the Lease.
6. Payments. Pursuant to Section 16(h) of the Lease,
all payments shall be made to Lessor c/o GATX Capital Corporation, as Agent,
Box 71316, Chicago, Illinois 60694 unless otherwise indicated in a writing
signed by Lessor.
3
69
This Schedule is hereby duly executed by the parties hereto as
of the date first written above.
MMC/GATX PARTNERSHIP NO. I
By GATX Capital Corporation, as Agent
By [SIG]
---------------------------------------
Title Vice President
------------------------------------
LESSEE'S ADDRESS
FOR NOTICES: CALYPTE BIOMEDICAL CORPORATION
1440 Fourth Street
Berkeley, CA 94710 By: [SIG]
ATTN: Paul Siegel --------------------------------------
Chief Financial Officer Title: Chief Financial Officer
-----------------------------------
Annex A - Description of Units
Annex B - Stipulated Loss Values
Annex C - Exceptions to Representations and Warranties
4
70
ANNEX A
DESCRIPTION OF UNITS
Units are Located at Lessee's Offices at
, CA .
------------------------------------------------------ -----
Major
Equipment Description Manufacturer Identification Lessor's
Category of Unit or Vendor or Serial No. Cost
Subtotal By
Equipment Category $
--------------------
5
71
22-Sep-93 CALYPTE BIOMEDICAL/SCHEDULE NO. 1 PAGE 1
ANNEX A
ALL UNITS LOCATED AT:
1440 FOURTH STREET
BERKELEY, CA 94710
ASSET COST OF
# VENDOR QTY ITEM DESCRIPTION INVOICE # UNIT
- ----- ----------------------- ----- ------------------------ --------- ---------
TENANT IMPROVEMENTS
-------------------
R-027 4 PHASE ELECTRIC GENERATOR HOOKUP & 1963 3,515.90
CLEANROOM POWER & LIGHTING
- --------------------------------------------------------------------------------------------------------------
R-027 DELUCCHI SHEET METAL STAINLESS STEEL FABRICATION 42937 162.00
FOR CLEANROOMS
- --------------------------------------------------------------------------------------------------------------
R-027 DELUCCHI SHEET METAL STAINLESS STEEL FABRICATION 42936 147.50
FOR CLEANROOMS
- --------------------------------------------------------------------------------------------------------------
R-027 DELUCCHI SHEET METAL STAINLESS STEEL FABRICATION 42950 92.00
FOR CLEANROOMS
- --------------------------------------------------------------------------------------------------------------
R-027 LO HEATH LABOR AND MATERIALS FOR 1445 281.00
PLUMBING SERVICES AS FOLLOWS:
RELOCATE 2 FIRE SPRINKLER HEADS
CAP 2 PVC PIPES
- --------------------------------------------------------------------------------------------------------------
R-027 LO HEATH LABOR AND MATERIALS FOR 1446 118.50
PLUMBING SERVICES AS FOLLOWS:
REBUILD 1 CHICAGO LAB FAUCET
REPAIR LEAK UNDER LAB SINK
- --------------------------------------------------------------------------------------------------------------
R-027 MICROCANTAMINATION INSTALLATION OF 1 TRAX IND. 549 100.00
CONTROL SERVICES PRODUCTS VINYL CURTAIN WALL
PANEL; MOVE 1 FRAME SUPPORT 6"
- --------------------------------------------------------------------------------------------------------------
R-027 PETER S. BERRY MATERIALS AND LABOR TO 15064 180.00
RELOCATE CENTRIFUGE OUTLET
TO CLEANROOM
- --------------------------------------------------------------------------------------------------------------
R-027 SAN BRUNO SHEET METAL INSTALLATION OF: 4/21/93 12,870.00
1 7 1/2 TON HEAT PUMP
1 5 TON HEAT PUMP ON ROOF AREA
W/SPRING ICELATORS
ALL DUCT WORK W/RETURN &
SUPPLY DAMPERS
FARR GLIDE FILTER BOXES
SUPPLY OUTSIDE AIR W/SEPARATE FILTERS
REMOVE OLD SKYLIGHT & INSTALL
2 X 4 & PLYWOOD W/METAL COVER
- --------------------------------------------------------------------------------------------------------------
R-027 SAN BRUNO SHEET METAL INSTALLED ALL DUCT WORK IN 4/30/93 8,865.00
CEILING AREA
- --------------------------------------------------------------------------------------------------------------
R-027 TRAX INDUSTRIAL 1 CUSTOM ANTI-STATIC SOFTWALL 4536 1,046.00
PRODUCTS PANEL FOR CLEANROOM
- --------------------------------------------------------------------------------------------------------------
M-027 4 PHASE ELECTRIC EMERGENCY POWER SET-UP 4/21/93 5,250.00
- --------------------------------------------------------------------------------------------------------------
M-026 J & M ENTERPRISES PHASE III - WAREHOUSE 1440.1 5,385.00
- --------------------------------------------------------------------------------------------------------------
GRAND TOTAL $38,012.90
==========
72
ANNEX B
STIPULATED LOSS VALUES
Rental Stipulated Loss Value
Payment Date Percentage of Lessor's Cost
- ------------ ---------------------------
Thereafter___________________ *
* If Lessee renews the Lease, the Stipulated Loss Value during any
extended Term shall be an amount equal to the fair market value of the Units as
at the end of the applicable initial lease term, as reasonably determined by
Lessor, or in the event of disagreement between Lessor and Lessee, as
determined by the independent appraiser selected under the provisions of
Section 4(b) of the Lease; provided, however, that such Stipulated Loss Value
shall not be less than 25% of Lessor's Cost of the Units.
6
73
ANNEX B
CALYPTE BIOMEDICAL
Stipulated Loss Values
Stipulated Loss Value
Rental as a Percentage of
Payment Date Lessor's Cost
----------------- --------------------
(on or before) 1 Oct-93 100.00
2 Nov-93 99.89
3 Dec-93 99.77
4 Jan-94 99.66
5 Feb-94 99.54
6 Mar-94 99.43
7 Apr-94 99.31
8 May-94 99.20
9 Jun-94 99.08
10 Jul-94 98.97
11 Aug-94 98.85
12 Sep-94 98.74
13 Oct-94 98.62
14 Nov-94 98.51
15 Dec-94 98.39
16 Jan-95 98.28
17 Feb-95 98.16
18 Mar-95 98.05
19 Apr-95 95.45
20 May-95 92.84
21 Jun-95 90.19
22 Jul-95 87.53
23 Aug-95 84.84
24 Sep-95 82.11
25 Oct-95 79.37
26 Nov-95 76.59
27 Dec-95 73.78
28 Jan-96 70.95
29 Feb-96 68.08
30 Mar-96 65.18
31 Apr-96 62.24
32 May-96 59.30
33 Jun-96 56.31
34 Jul-96 53.32
35 Aug-96 50.29
36 Sep-96 47.23
37 Oct-96 44.15
38 Nov-96 41.04
39 Dec-96 37.88
40 Jan-97 34.72
41 Feb-97 31.52
42 Mar-97 28.28
43 Apr-97 and Thereafter 25.00
* If Lessee renews the Lease, the Stipulated Loss Value during any extended
Term shall be an amount equal to the fair market value of the Units as at the
end of the applicable initial lease term, as reasonably determined by Lessor,
or in the event of disagreement between Lessor and Lessee, as determined by the
independent appraiser selected under the provisions of Section 4(b) of the
Lease; provided, however, that such Stipulated Loss Value shall not be less
than 25% of Lessor's Cost of the Units.
74
ANNEX C
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES
NONE
7
75
SCHEDULE NO. 2
TRUE LEASE
This Schedule No. 2 (this "Schedule"), dated October 4, 1993
(such date being the "Delivery Date" for this Schedule), is a part of the
Master Equipment Lease Agreement, dated as of August 20, 1993 (the "Lease"),
between MMC/GATX PARTNERSHIP NO. I ("Lessor") and CALYPTE BIOMEDICAL
CORPORATION ("Lessee") and is incorporated therein by this reference. The terms
used in this Schedule shall have the meanings given to them in the Lease unless
otherwise defined herein.
1. Description and Cost of Units
The Units subject to this Schedule are described in
Annex A hereto. The Lessor's Cost for this Schedule is:
$148,871.25
2. Acceptance; Obligations
Lessee confirms that on the Delivery Date hereof (i)
all of the Units described in Annex A attached hereto were duly accepted by
Lessee and became subject to the Lease; and (ii) Lessee became obligated to
make Rental Payments to Lessor and perform certain other obligations with
respect to such Units as provided in the Lease and this Schedule.
3. Rent
(a) Commencing on October 4, 1993 (the "Rent Commencement
Date") and on the fourth day of each month thereafter, the rent for each Unit
shall be paid by Lessee in advance by check (or if requested by Lessor, by wire
transfer), to the location prescribed by Lessor in writing, in forty-two (42)
consecutive installments, each of the first twelve (12) of which shall be
calculated based upon a Rent Factor of 1.4946% of the Lessor's Cost for this
Schedule and each of the following thirty (30) of which shall be calculated
based upon a Rent Factor of 3.4825% of the Lessor's Cost for this Schedule,
which rentals are:
$2,225.03 for each of the first 12 such installments, and
$5,184.44 for each of the following 30 such installments.
(b) The Lease Term for the Units subject to this Schedule
is 42 months and commences on the Rent Commencement Date. The Lease Term for
the Units subject to this Schedule shall expire on:
April 3, 1997
76
(c) The Interim Rental Payment for the period from the
Delivery Date of this Schedule through the Rent Commencement Date, which is due
on the Delivery date, is:
$0.
4. Conditions. Lessor's obligations under the Lease and
this Schedule are subject to the prior satisfaction of the following conditions
on or before the Delivery Date of this Schedule:
(a) Lessor shall have received, in form and substance
satisfactory to Lessor:
(i) All acceptable waivers of landlords and/or
mortgagees, substantially in the form of Exhibit B to the Lease.
(ii) To the extent Lessor deems it necessary, a release or
other arrangement with any other lessor or lender to the Company to insure that
there will be no impairment of Lessor's interest in the Units subject to this
or other Schedules.
(iii) A sales tax exemption or other similar certificate
from Lessee with respect to any Units included in this Schedule, but not placed
in service by Lessee before the Delivery Date of this Schedule.
(iv) Copies of invoices, purchase orders and cancelled
checks relating to all Units being placed under the Lease pursuant to a
sale/leaseback on the Delivery Date of this Schedule and/or a Purchase Order
and Invoice Assignment from Lessee to Lessor substantially in the form of
Exhibit C to the Lease, instead of copies of cancelled checks, for all Units to
be purchased by Lessor directly from the vendor.
(v) For all sales of Units by Lessee to Lessor, a Bill of
Sale, substantially in the form of Exhibit D to the Lease.
(vi) An executed copy of each manufacturer's service
contract entered into by Lessee pursuant to Section 9 of the Lease.
(b) Lessee shall have filed or recorded, to the
satisfaction of Lessor, all instruments and documents, including, but not
limited to, Financing Statements on Form UCC-1 and Releases and Termination
Statements on Form UCC-2, then deemed necessary by Lessor to preserve and
protect its rights hereunder, under the Uniform Commercial Code (including the
termination of any after-acquired property clause of third parties with respect
to any Unit) and, if applicable, not less than ten days before the Delivery
Date, a notice of the proposed transfer to Lessor by Lessee of title to the
Units to be placed under the Lease on such Delivery Date shall have been
published as and to the extent required by Section 3440 of the Civil Code of
the State of California.
2
77
(c) Lessor shall have received all other documents and
Lessee shall have performed all other acts as Lessor shall have reasonably
requested to consummate the transaction contemplated by this Schedule.
(d) Except with the prior consent of Lessor which shall
not be unreasonably withheld, (i) Lessor's Cost for the Units subject to this
Schedule shall be equal to or exceed the Minimum Funding Amount, (ii) Lessor's
Cost for the Units subject to this Schedule when aggregated with Lessor's Cost
for all Units under all previously funded Schedules shall not exceed the
Lessor's Commitment set forth on the cover page of the Lease, and (iii) the
funding contemplated by this Schedule when aggregated with all previous
fundings under the Lease shall not exceed the Maximum Number of Fundings.
(e) Except with the prior written consent of Lessor which
shall not be unreasonably withheld, the aggregate of Lessor's Cost of all Units
subject to this Schedule and all Schedules previously made subject to the Lease
which consist of tenant improvements, computer software, equipment manufactured
specially for Lessee and/or delivery and installation costs shall not exceed
17.39% ($200,000 of Lessor's Cost if the entire Lessor's Commitment is funded)
of the total Lessor's Cost of Equipment funded.
(f) The Delivery Date of this Schedule shall not be later
than the Commitment Termination Date.
(g) On the Delivery Date of this Schedule no Event of
Default or event, which with the passage of time or the giving of notice or
both would constitute an Event of Default, shall exist.
(h) Except with the prior written consent of Lessor
which shall not be unreasonably withheld, all of the Units listed on Annex A
shall consist of Eligible Equipment.
5. Representations and Warranties. Lessee hereby makes
the representations and warranties set forth in Section 14 of the Lease.
6. Payments. Pursuant to Section 16(h) of the Lease,
all payments shall be made to Lessor c/o GATX Capital Corporation, as Agent,
Box 71316, Chicago, Illinois 60694 unless otherwise indicated in a writing
signed by Lessor.
3
78
This Schedule is hereby duly executed by the parties hereto as
of the date first written above.
MMC/GATX PARTNERSHIP NO. I
By GATX Capital Corporation, as Agent
By /SIG/
----------------------------------
Title Vice President
----------------------------------
LESSEE'S ADDRESS
FOR NOTICES: CALYPTE BIOMEDICAL CORPORATION
1440 Fourth Street
Berkeley, CA 94710 By: /SIG/
ATTN: Paul Siegel --------------------------------
Chief Financial Officer
Title: Chief Financial Officer
--------------------------------
Annex A - Description of Units
Annex B - Stipulated Loss Values
Annex C - Exceptions to Representations and Warranties
4
79
ANNEX A
DESCRIPTION OF UNITS
Units are Located at Lessee's Offices at ___________________________,
CA ______________.
Major
Equipment Description Manufacturer Identification Lessor's
Category of Unit or Vendor or Serial No. Cost
- -------- ------- --------- -------------- ----
Subtotal By
Equipment Category $_________________
5
80
22-Sep-93 CALYPTE BIOMEDICAL/SCHEDULE NO. 2 PAGE 1
ANNEX A
ALL UNITS LOCATED AT:
1440 FOURTH STREET
BERKELEY, CA 94710
ASSET COST OF
# VENDOR QTY ITEM DESCRIPTION MODEL # PO # INVOICE # SERIAL # UNIT
- ----- ------ --- ---------------- ------- ---- --------- -------- -------
LAB EQUIPMENT
- -------------
1065 AIR TECHNIQUES 1 PARTICULATE DET. UNIT - TDA-2E 10181 5276 10065 5,690.00
PORTABLE AEROSOL PHOTOMETER
WITH PARTS
1 PORTABLE AEROSOL GENERATO FTDA-4A 9912 1,250.00
- -------------------------------------------------------------------------------------------------------------------------------
1112 BAXTER 1 BIOFUGE 15 MICROCENTRIFUGE 10288 9014760 1,552.50
1 ANGLE ROTOR 240.00
- -------------------------------------------------------------------------------------------------------------------------------
1051 BIO-TEK 1 MICROPLATE READER EL312 10189 118914 85259 5,800.00
- -------------------------------------------------------------------------------------------------------------------------------
R-027 ENVIROFLEX 1 PORTABLE SOFTWALL CLEAN 10024 DEPOSIT 7,430.00
ROOM 16' X 10'; 4 HEPA; 3 LIGHTS 1025
1 PORTABLE SOFTWALL CLEAN 1031 7,019.00
ROOM 14' X 12'; 3 HEPA; 3 LIGHTS
1 PORTABLE SOFTWALL CLEAN 6,732.00
ROOM 12' X 11'; 3 HEPA; 3 LIGHTS
- -------------------------------------------------------------------------------------------------------------------------------
1123 ISCO 1 UA-6 DETECTOR WITH TYPE 11 10430 190666-00 3,500.00
OPTICAL UNIT
1 DIVERTER VALVE 275.00
- -------------------------------------------------------------------------------------------------------------------------------
KAYE INSTRUMENTS 1 PORTABLE VALIDATOR ASSY. 10294 53652 8,000.00
1 D4 PLUS ANALOG PANEL ASSY 820.00
1 PROBE ASSY 1,950.00
- -------------------------------------------------------------------------------------------------------------------------------
KAYE INSTRUMENTS 1 CALIBRATOR - 115V LTR-50 10294 53829 5,500.00
- -------------------------------------------------------------------------------------------------------------------------------
MED-EQUIP 1 STEAM GENERATOR 9291 5648 N3-13378 13,000.00
STAINLESS STEEL
- -------------------------------------------------------------------------------------------------------------------------------
1054 MILLIPORE 1 HPLC INERT PROTEIN 625 LC 10115 719923 24,109.00
PURIFICATION SYSTEM
1 WATERS FRACTION COLLECTOR 486 3,314.60
1 DUAL PEN RECORDER SE-120 2,009.70
- -------------------------------------------------------------------------------------------------------------------------------
1054 MILLIPORE 1 AP MINICOLUM 5MM X 100MM 10115 719237 215.30
1 DIVERTER VALVE 301.40
- -------------------------------------------------------------------------------------------------------------------------------
1114 PETERSON POWER SYSTEM 1 OLYMPIAN GENERATOR-DIESEL CD076 10087 E099301 2007042 15,276.18
ENGINE LIQUID COOLED
1115 1 OLYMPIAN DOUBLE WALL TANK CTS020Y 93A01704W 2,486.82
- -------------------------------------------------------------------------------------------------------------------------------
1052 SHANDON UPSHAW 1 CYTOSPIN 3 (SLIDE MAKING 10196 3575830 4,995.00
APPARATUS)
- -------------------------------------------------------------------------------------------------------------------------------
1113 SIERRA INSTRUMENTS 1 HOT WIRE ANEMOMETER 634 10519 41849 18593 1,675.00
- -------------------------------------------------------------------------------------------------------------------------------
1088 TERRA UNIVERSAL 1 DESICCATOR CHAMBER 10247 19065 2,088.00
PLEXIGLASS 45" X 24" X 60", 10
DOORS - HERMETICALLY SEALED
56 PLEXIGLASS SHELF W/ BOW GUARD 840.00
1 STAND: 3" H, STEEL 198.00
4 CASTER WITH BRAKE 128.00
- -------------------------------------------------------------------------------------------------------------------------------
1039 VWR 2 ROTARY CULTURE APPARATUS DECK 10117 5E-07 910.80
- -------------------------------------------------------------------------------------------------------------------------------
1111 VWR 1 WHEATON ROTARY CULTURE BASE 10249 5E-07 1,311.00
4 ROTARY CULTURE DECK 1,548.00
- -------------------------------------------------------------------------------------------------------------------------------
81
22-Sep-93 CALYPTE BIOMEDICAL/SCHEDULE NO. 2 PAGE 2
ANNEX A
ALL UNITS LOCATED AT:
1440 FOURTH STREET
BERKELEY, CA 94710
ASSET COST OF
# VENDOR QTY ITEM DESCRIPTION MODEL # PO # INVOICE # SERIAL # UNIT
- ----- ------ --- ---------------- ------- ---- --------- -------- -------
1109 VWR 1 AQUASTAR TITRATOR C2000 10363 SE-07 5,328.00
1 AQUASTAR SOLID EVAPORATOR EV-6T 4,496.00
- -------------------------------------------------------------------------------------------------------------------------------
SUBTOTAL LAB EQUIPMENT $139,989.30
-----------
- -------------------------------------------------------------------------------------------------------------------------------
FURNTURE
- --------
1074 AC PAPER 1 FILE-4 OR LATERAL; HON; LEGAL; 10238 110120 629.00
PUTTY
- -------------------------------------------------------------------------------------------------------------------------------
1086 NORLAB HANSON 2 LAB BENCHES; PROTABLE; TABLES 10411 1621 2,979.00
1087 AND SHELVES; BEIGE
- -------------------------------------------------------------------------------------------------------------------------------
SUBTOTAL FURNITURE $3,608.00
---------
- -------------------------------------------------------------------------------------------------------------------------------
COMPUTER EQUIPMENT
- ------------------
1120 COMPUTERWARE 1 CENTRIS 610 CPU W/80 MB 10542 500492 F2319LHBCN2 1,597.00
HARDDRIVE WITH 4MB MEMORY &
APPLE KEYBOARD II
- -------------------------------------------------------------------------------------------------------------------------------
1117 COMPUTERWARE 1 CENTRIS 610 CPU W/80 MB 10549 500589 F2314LAXCN2 1,398.00
HARDDRIVE AND APPLE KEYBOARD
- -------------------------------------------------------------------------------------------------------------------------------
1081 FUTURE NOW 1 SEIKO MONITOR-14" COLOR CM1445 10381 368215 27MS273B 480.00
- -------------------------------------------------------------------------------------------------------------------------------
1121 FUTURE NOW 1 SEIKO MONITOR-14" COLOR CM1445 10548 S0400477 26M5093B 480.00
1118 1 SEIKO MONITOR-14" COLOR CM1445 27M5693B 480.00
- -------------------------------------------------------------------------------------------------------------------------------
1082 MAC PRO SYSTEMS 1 MAC IISI 40/3 10380 JW0279 FC2252XTC56 838.95
- -------------------------------------------------------------------------------------------------------------------------------
SUBTOTAL COMPUTERS $5,273.95
---------
GRAND TOTAL $148,871.25
===========
82
ANNEX B
STIPULATED LOSS VALUES
Rental Stipulated Loss Value
Payment Date Percentage of Lessor's Cost
- ------------ ---------------------------
Thereafter ________________________________ *
* If Lessee renews the Lease, the Stipulated Loss Value during any
extended Term shall be an amount equal to the fair market value of the Units as
at the end of the applicable initial lease term, as reasonably determined by
Lessor, or in the event of disagreement between Lessor and Lessee, as
determined by the independent appraiser selected under the provisions of
Section 4(b) of the Lease; provided, however, that such Stipulated Loss Value
shall not be less than 25% of Lessor's Cost of the Units.
6
83
ANNEX B
CALYPTE BIOMEDICAL
Stipulated Loss Values
Stipulated Loss Value
Rental as a Percentage of
Payment Date Lessor's Cost
----------------- ------------------
(on or before) 1 Oct-93 100.00
2 Nov-93 99.89
3 Dec-93 99.77
4 Jan-94 99.66
5 Feb-94 99.54
6 Mar-94 99.43
7 Apr-94 99.31
8 May-94 99.20
9 Jun-94 99.08
10 Jul-94 98.97
11 Aug-94 98.85
12 Sep-94 98.74
13 Oct-94 98.62
14 Nov-94 98.51
15 Dec-94 98.39
16 Jan-95 98.28
17 Feb-95 98.16
18 Mar-95 98.05
19 Apr-95 95.45
20 May-95 92.84
21 Jun-95 90.19
22 Jul-95 87.53
23 Aug-95 84.84
24 Sep-95 82.11
25 Oct-95 79.37
26 Nov-95 76.59
27 Oct-95 73.78
28 Jan-96 70.95
29 Feb-96 68.08
30 Mar-96 65.18
31 Apr-96 62.24
32 May-96 59.30
33 Jun-96 56.31
34 Jul-96 53.32
35 Aug-96 50.29
36 Sep-96 47.23
37 Oct-96 44.15
38 Nov-96 41.04
39 Dec-96 37.88
40 Jan-97 34.72
41 Feb-97 31.52
42 Mar-97 28.28
43 Apr-97 and Thereafter 25.00
* If Lessee renews the Lease, the Stipulated Loss Value during any extended
Term shall be an amount equal to the fair market value of the Units as at the
end of the applicable initial lease term, as reasonably determined by Lessor,
or in the event of disagreement between Lessor and Lessee, as determined by the
independent appraiser selected under the provisions of Section 4(b) of the
Lease; provided, however, that such Stipulated Loss Value shall not be less
than 25% of Lessor's Cost of the Units.
84
ANNEX C
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES
NONE
7
85
SCHEDULE NO. 3
TRUE LEASE
This Schedule No. 3 (this "Schedule"), dated October 4, 1993 (such
date being the "Delivery Date" for this Schedule), is a part of the Master
Equipment Lease Agreement, dated as of August 20, 1993 (the "Lease"), between
MMC/GATX PARTNERSHIP NO. I ("Lessor") and CALYPTE BIOMEDICAL CORPORATION
("Lessee") and is incorporated therein by this reference. The terms used in
this Schedule shall have the meanings given to them in the Lease unless
otherwise defined herein.
1. Description and Cost of Units
The Units subject to this Schedule are described in Annex A
hereto. The Lessor's Cost for this Schedule is:
$38,297.00
2. Acceptance; Obligations
Lessee confirms that on the Delivery Date hereof (i) all of the Units
described in Annex A attached hereto were duly accepted by Lessee and became
subject to the Lease; and (ii) Lessee became obligated to make Rental Payments
to Lessor and perform certain other obligations with respect to such Units as
provided in the Lease and this Schedule.
3. Rent
(a) Commencing on October 4, 1993 (the "Rent Commencement
Date") and on the fourth day of each month thereafter, the rent for each Unit
shall be paid by Lessee in advance by check (or if requested by Lessor, by wire
transfer), to the location prescribed by Lessor in writing, in forty-two (42)
consecutive installments, each of the first twelve (12) of which shall be
calculated based upon a Rent Factor of 1.4946% of the Lessor's Cost for this
Schedule and each of the following thirty (30) of which shall be calculated
based upon a Rent Factor of 3.4825% of the Lessor's Cost for this Schedule,
which rentals are:
$ 572.39 for each of the first 12 such installments, and
$1,333.69 for each of the following 30 such installments.
(b) The Lease Term for the Units subject to this Schedule
is 42 months and commences on the Rent Commencement Date. The Lease Term for
the Units subject to this Schedule shall expire on:
April 3, 1997
86
(c) The Interim Rental Payment for the period from the
Delivery Date of this Schedule through the Rent Commencement Date, which is due
on the Delivery date, is:
$0.
4. Conditions. Lessor's obligations under the Lease and
this Schedule are subject to the prior satisfaction of the following conditions
on or before the Delivery Date of this Schedule:
(a) Lessor shall have received, in form and substance
satisfactory to Lessor:
(i) All acceptable waivers of landlords and/or
mortgagees, substantially in the form of Exhibit B to the Lease.
(ii) To the extent Lessor deems it necessary, a
release or other arrangement with any other lessor or lender to the Company to
insure that there will be no impairment of Lessor's interest in the Units
subject to this or other Schedules.
(iii) A sales tax exemption or other similar
certificate from Lessee with respect to any Units included in this Schedule,
but not placed in service by Lessee before the Delivery Date of this Schedule.
(iv) Copies of invoices, purchase orders and
cancelled checks relating to all Units being placed under the Lease pursuant to
a sale/leaseback on the Delivery Date of this Schedule and/or a Purchase Order
and Invoice Assignment from Lessee to Lessor substantially in the form of
Exhibit C to the Lease, instead of copies of cancelled checks, for all Units
to be purchased by Lessor directly from the vendor.
(v) For all sales of Units by Lessee to Lessor, a
Bill of Sale, substantially in the form of Exhibit D to the Lease.
(vi) An executed copy of each manufacturer's
service contract entered into by Lessee pursuant to Section 9 of the Lease.
(b) Lessee shall have filed or recorded, to the
satisfaction of Lessor, all instruments and documents, including, but not
limited to, Financing Statements on Form UCC-1 and Releases and Termination
Statements on Form UCC-2, then deemed necessary by Lessor to preserve and
protect its rights hereunder, under the Uniform Commercial Code (including the
termination of any after-acquired property clause of third parties with respect
to any Unit) and, if applicable, not less than ten days before the Delivery
Date, a notice of the proposed transfer to Lessor by Lessee of title to the
Units to be placed under the Lease on such Delivery Date shall have been
published as and to the extent required by Section 3440 of the Civil Code of
the State of California.
2
87
(c) Lessor shall have received all other documents and
Lessee shall have performed all other acts as Lessor shall have reasonably
requested to consummate the transaction contemplated by this Schedule.
(d) Except with the prior consent of Lessor which shall
not be unreasonably withheld, (i) Lessor's Cost for the Units subject to this
Schedule shall be equal to or exceed the Minimum Funding Amount, (ii) Lessor's
Cost for the Units subject to this Schedule when aggregated with Lessor's Cost
for all Units under all previously funded Schedules shall not exceed the
Lessor's Commitment set forth on the cover page of the Lease, and (iii) the
funding contemplated by this Schedule when aggregated with all previous
fundings under the Lease shall not exceed the Maximum Number of Fundings.
(e) Except with the prior written consent of Lessor which
shall not be unreasonably withheld, the aggregate of Lessor's Cost of all Units
subject to this Schedule and all Schedules previously made subject to the Lease
which consist of tenant improvements, computer software, equipment manufactured
specially for Lessee and/or delivery and installation costs shall not exceed
17.39% ($200,000 of Lessor's Cost if the entire Lessor's Commitment is funded)
of the total Lessor's Cost of Equipment funded.
(f) The Delivery Date of this Schedule shall not be later
than the Commitment Termination Date.
(g) On the Delivery Date of this Schedule no Event of
Default or event, which with the passage of time or the giving of notice or
both would constitute an Event of Default, shall exist.
(h) Except with the prior written consent of Lessor which
shall not be unreasonably withheld, all of the Units listed on Annex A shall
consist of Eligible Equipment.
5. Representations and Warranties. Lessee hereby makes the
representations and warranties set forth in Section 14 of the Lease.
6. Payments. Pursuant to Section 16(h) of the Lease, all payments
shall be made to Lessor c/o GATX Capital Corporation, as Agent, Box 71316,
Chicago, Illinois 60694 unless otherwise indicated in a writing signed by
Lessor.
3
88
This Schedule is hereby duly executed by the parties hereto as of the
date first written above.
MMC/GATX PARTNERSHIP NO. I
By GATX Capital Corporation, as Agent
By [SIG]
---------------------------------------
Title VP
------------------------------------
CALYPTE BIOMEDICAL CORPORATION
By: [SIG]
---------------------------------------
Title: Chief Financial Officer
------------------------------------
LESSEE'S ADDRESS
FOR NOTICES:
1440 Fourth Street
Berkeley, CA 94710
ATTN: Paul Siegel
Chief Financial Officer
Annex A - Description of Units
Annex B - Stipulated Loss Values
Annex C - Exceptions to Representations and Warranties
4
89
ANNEX A
DESCRIPTION OF UNITS
Units are Located at Lessee's Offices at ____________________,
CA _______.
Major
Equipment Description Manufacturer Identification Lessor's
Category of Unit or Vendor or Serial No. Cost
- -------- ------- --------- ------------- ----
Subtotal By
Equipment Category $ ______________________
5
90
22-Sep-93 CALYPTE BIOMEDICAL/SCHEDULE NO. 3 PAGE 1
ANNEX A
ALL UNITS LOCATED AT:
1440 FOURTH STREET
BERKELEY, CA 94710
ASSET
# VENDOR QTY ITEM DESCRIPTION MODEL # PO # INVOICE # SERIAL #
- ----- ------ --- ---------------- ------- ---- --------- --------
LAB EQUIPMENT
- -------------
1034 COLE-PARMER 1 SCALE MIXER, STIR PAK 115 W/ 10012 1500795 M92002749
CONTROLLER, MOTOR, SUPPORT
PLATFORM, PIVOT MOUNT & CLAMP
- ----------------------------------------------------------------------------------------------------------------------------------
1067 FISHER 1 CORROSIVE SAFETY CABINET 9768 982505
- ----------------------------------------------------------------------------------------------------------------------------------
1016 FISHER 1 PH METER 340 10001 1426579
- ----------------------------------------------------------------------------------------------------------------------------------
1038 FORMA 1 INCUBATOR--REACH IN LARGE 9906 2375900 36069
CAPACITY 32 C.F.
1 RECORDER
- ----------------------------------------------------------------------------------------------------------------------------------
1036 HARRIS MANUFACTURING 1 FREEZER CHEST--50C 9978 49995 P23C-138269-Pt
- ----------------------------------------------------------------------------------------------------------------------------------
1040 SCIENTIFIC INSTRUMENTS 1 OLYMPUS MICROSCOPE-- 10025 78497
FLUORESCENT WITH ACCESSORIES
- ----------------------------------------------------------------------------------------------------------------------------------
1039 VWR 1 WHEATON ROTARY CULTURE BASE 9996 45976860
1 ROTARY CULTURE DECK
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
FURNITURE
- ---------
1024 AC PAPER & SUPPLY 1 SCHWAB INSULATE LEGAL FILE 4CFC-5000 9940 106317
CABINET 4 DRAWER PUTTY
- ----------------------------------------------------------------------------------------------------------------------------------
1022 AC PAPER 1 FILE CABINET--INSULATED 4DR. 9940 107401
LATERAL; PUTTY LEGAL
- ----------------------------------------------------------------------------------------------------------------------------------
AS-008 CV INSTALLATIONS 2 HERMAN MILLER WORKSTATIONS 10133 4/6/93
8' x 10' FOR FAX & PRINTER; GRAY
- ----------------------------------------------------------------------------------------------------------------------------------
1013 SAM CLAR OFFICE FURNITURE 1 DESK--WOOD 36X72 USED 9926 41118
1014 1 CREDENZA--WOOD USED
1042 1 FILE--2 DR LATERAL WOOD
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
OFFICE EQUIPMENT
- ----------------
1041 TAYLOR MADE 1 CANNON PLAIN PAPER FAX L775 10010 PUR. SPEC.
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
COMPUTER EQUIPMENT
- ------------------
1044 COMPUTERWARE 1 TRINITRON MONITOR--14" COLOR 9931 679050 S1237RK04
1008 1 APPLE MONITOR--12" MONOCHROME SG2341VVC97
- ----------------------------------------------------------------------------------------------------------------------------------
1010 COMPUTERWARE (UNION BANK) 1 MAC IIsi CPU W/40MB HARD DRIVE II SI 9859 678183 FC2234C1C56
1084 1 MAC IIsi CPU W/40MB HARD DRIVE II SI FC22347FC56
1011 1 MAC IIsi CPU W/40MB HARD DRIVE II SI FC22335YC56
1007 1 MAC IIsi CPU W/40MB HARD DRIVE II SI FC22347BC56
- ----------------------------------------------------------------------------------------------------------------------------------
1009 PERIPHERAL LAND INCORPORATED 1 INFINITY EXTERNAL DRIVE 88-R/44 9896 94549 16055
- ----------------------------------------------------------------------------------------------------------------------------------
ASSET COST OF NBV
# VENDOR QTY ITEM DESCRIPTION UNIT COST
- ----- ------ --- ---------------- ------- ----
LAB EQUIPMENT
- -------------
1034 COLE-PARMER 1 SCALE MIXER, STIR PAK 115 W/ $ 721.00 $ 692.00
CONTROLLER, MOTOR, SUPPORT
PLATFORM, PIVOT MOUNT & CLAMP
- ------------------------------------------------------------------------------------------------------------
1067 FISHER 1 CORROSIVE SAFETY CABINET 405.00 384.00
- ------------------------------------------------------------------------------------------------------------
1016 FISHER 1 PH METER 495.30 454.00
- ------------------------------------------------------------------------------------------------------------
1038 FORMA 1 INCUBATOR--REACH IN LARGE 6,028.00 5,777.00
CAPACITY 32 C.F.
1 RECORDER 719.00 659.00
- ------------------------------------------------------------------------------------------------------------
1036 HARRIS MANUFACTURING 1 FREEZER CHEST--50C 3,194.00 3,088.00
- ------------------------------------------------------------------------------------------------------------
1040 SCIENTIFIC INSTRUMENTS 1 OLYMPUS MICROSCOPE-- 13,829.00 13,253.00
FLUORESCENT WITH ACCESSORIES
- ------------------------------------------------------------------------------------------------------------
1039 VWR 1 WHEATON ROTARY CULTURE BASE 1,249.00 1,186.00
1 ROTARY CULTURE DECK 379.00 354.00
- ------------------------------------------------------------------------------------------------------------
SUBTOTAL LAB EQUIPMENT $27,019.30 $25,827.00
---------- ----------
- ------------------------------------------------------------------------------------------------------------
FURNITURE
- ---------
1024 AC PAPER & SUPPLY 1 SCHWAB INSULATE LEGAL FILE 929.25 852.00
CABINET 4 DRAWER PUTTY
- ------------------------------------------------------------------------------------------------------------
1022 AC PAPER 1 FILE CABINET--INSULATED 4DR. 445.00 408.00
LATERAL; PUTTY LEGAL
- ------------------------------------------------------------------------------------------------------------
AS-008 CV INSTALLATIONS 2 HERMAN MILLER WORKSTATIONS 2,500.00 2,292.00
8' x 10' FOR FAX & PRINTER; GRAY
- ------------------------------------------------------------------------------------------------------------
1013 SAM CLAR OFFICE FURNITURE 1 DESK--WOOD 36X72 USED 299.95 270.00
1014 1 CREDENZA--WOOD USED 299.95 270.00
1042 1 FILE--2 DR LATERAL WOOD 174.95 157.00
- ------------------------------------------------------------------------------------------------------------
SUBTOTAL FURNITURE $4,649.10 $4,249.00
--------- ---------
- ------------------------------------------------------------------------------------------------------------
OFFICE EQUIPMENT
- ----------------
1041 TAYLOR MADE 1 CANNON PLAIN PAPER FAX 4,068.00 3,729.00
- ------------------------------------------------------------------------------------------------------------
SUBTOTAL OFFICE EQUIPMENT $4,068.00 $3,729.00
--------- ---------
- ------------------------------------------------------------------------------------------------------------
COMPUTER EQUIPMENT
- ------------------
1044 COMPUTERWARE 1 TRINITRON MONITOR--14" COLOR 529.00 476.00
1008 1 APPLE MONITOR--12" MONOCHROME 199.00 179.00
- ------------------------------------------------------------------------------------------------------------
1010 COMPUTERWARE (UNION BANK) 1 MAC IIsi CPU W/40MB HARD DRIVE II SI 899.00 824.00
1084 1 MAC IIsi CPU W/40MB HARD DRIVE II SI 899.00 824.00
1011 1 MAC IIsi CPU W/40MB HARD DRIVE II SI 899.00 824.00
1007 1 MAC IIsi CPU W/40MB HARD DRIVE II SI 899.00 824.00
- ------------------------------------------------------------------------------------------------------------
1009 PERIPHERAL LAND INCORPORATED 1 INFINITY EXTERNAL DRIVE 590.00 541.00
- ------------------------------------------------------------------------------------------------------------
SUBTOTAL COMPUTER EQUIPMENT $4,914.00 $4,492.00
--------- ---------
GRAND TOTAL $40,650.40 $38,297.00
---------- ----------
91
ANNEX B
STIPULATED LOSS VALUES
Rental Stipulated Loss Value
Payment Date Percentage of Lessor's Cost
- ------------ ---------------------------
Thereafter ___________________________ *
*If Lessee renews the Lease, the Stipulated Loss Value during any
extended Term shall be an amount equal to the fair market value of the Units as
at the end of the applicable initial lease term, as reasonably determined by
Lessor, or in the event of disagreement between Lessor and Lessee, as
determined by the independent appraiser selected under the provisions of
Section 4(b) of the Lease; provided, however, that such Stipulated Loss Value
shall not be less than 25% of Lessor's Cost of the Units.
6
92
ANNEX B
CALYPTE BIOMEDICAL
Stipulated Loss Values
Stipulated Loss Value
Rental as a Percentage of
Payment Date Lessor's Cost
----------------- ------------------
(on or before) 1 Oct-93 100.00
2 Nov-93 99.89
3 Dec-93 99.77
4 Jan-94 99.66
5 Feb-94 99.54
6 Mar-94 99.43
7 Apr-94 99.31
8 May-94 99.20
9 Jun-94 99.08
10 Jul-94 98.97
11 Aug-94 98.85
12 Sep-94 98.74
13 Oct-94 98.62
14 Nov-94 98.51
15 Dec-94 98.39
16 Jan-95 98.28
17 Feb-95 98.16
18 Mar-95 98.05
19 Apr-95 95.45
20 May-95 92.84
21 Jun-95 90.19
22 Jul-95 87.53
23 Aug-95 84.84
24 Sep-95 82.11
25 Oct-95 79.37
26 Nov-95 76.59
27 Oct-95 73.78
28 Jan-96 70.95
29 Feb-96 68.08
30 Mar-96 65.18
31 Apr-96 62.24
32 May-96 59.30
33 Jun-96 56.31
34 Jul-96 53.32
35 Aug-96 50.29
36 Sep-96 47.23
37 Oct-96 44.15
38 Nov-96 41.04
39 Dec-96 37.88
40 Jan-97 34.72
41 Feb-97 31.52
42 Mar-97 28.28
43 Apr-97 and Thereafter 25.00
* If Lessee renews the Lease, the Stipulated Loss Value during any extended
Term shall be an amount equal to the fair market value of the Units as at the
end of the applicable initial lease term, as reasonably determined by Lessor,
or in the event of disagreement between Lessor and Lessee, as determined by the
independent appraiser selected under the provisions of Section 4(b) of the
Lease; provided, however, that such Stipulated Loss Value shall not be less
than 25% of Lessor's Cost of the Units.
93
ANNEX C
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES
NONE
7
94
NOTICE OF INTENDED TRANSFER AND LEASE BACK
RE: 1440 4TH ST. BERKELEY, CA 94710
SALE DATE: OCTOBER 2, 1993
CNS118716
PROOF OF PUBLICATION
STATE OF CALIFORNIA
Alameda County, ss
RONALD J. LEWIS of said County,
does hereby certify
That he is and was during all times herein mentioned a citizen of the United
States over the age of 21 years and neither a party to nor in anyway interested
in the matter or action herein set forth and is and was competent to be a
witness in said matter or action.
That he is now and at all times herein mentioned was the principal clerk of The
Independent Berkeley Student Publishing Co., Inc., publishers of The Daily
Californian which is and was at all times herein mentioned a newspaper of
general circulation printed and published daily in the City of Berkeley, County
of Alameda, State of California, and as such principal clerk, has now and at all
times had charge of all legal notices and advertisements in said newspaper, that
said The Daily Californian is now and was at all times herein mentioned a
newspaper of general circulation as that term is defined by Section 6000 of the
Government Code and as provided by said Section, is and at all of said times was
published for the dissemination of local and telegraphic news and intelligence
of a general character, having a bona fide subscription list of paying
subscribers, and is not and at none of said times was devoted to the interests
or published for the entertainment or instruction of a particular class,
profession, trade, calling, race, or denomination, or for any number of such
classes, professions, trades, callings, race, or denominations, that at all
times said newspaper has been established, printed and published at regular
intervals in said County and State, for more than one year preceding the date of
the first publication of the notice herein mentioned, that said notice was set
in type no smaller than nonpareil, and was preceded with words printed in black
face type no smaller than nonpareil describing and expressing in general terms
and purpose and character of the notice intended to be given.
THAT THE
NOTICE OF INTENDED TRANSFER AND LEASEBACK
RE; 1440 4TH ST. BERKELEY, CA 94710
SALE DATE: OCTOBER 2, 1993
of which the annexed is a printed copy, was published in said newspaper and not
in any supplement thereof on the following dates to wit:
9/22/93
I certify (or declare) under penalty of perjury that the foregoing is true and
correct.
Dated at Berkeley, California this 22ND day of SEPTEMBER 1993.
Signed [SIG]
------------------------------------------------------------
NOTICE OF INTENDED
TRANSFER AND LEASEBACK
Notice is hereby given that Calypte Biomedical Corporation, a
California corporation, (the "Transferer"), whose address is 1440 Fourth Street,
Berkeley, CA 94710, intends to transfer certain personal property to MMC/GATX
Partnership No. 1, a California partnership (the "Intended Transferee") whose
address is c/o GATX Capital Corporation, Four Embarcadero Center, Suite 2200,
San Francisco, California 94111; and that said intended Transferee (Leasor)
intends to leaseback to said Transferor (Leasee), the said personal property, a
general description of which is as follows, to wit: certain scientific
laboratory and test equipment, manufacturing equipment, tenant improvements,
fixtures, furniture and personal property, including, without limitation, a
portable aerosol photometer and generator, a biofuge 15 microcentrifuge, angle
rotor, a microplate reader, portable softwall clean rooms, UA-6 detector,
portable validator assy., probe assy., a calibrator, a steam generator, an HPLC
inert protein purification system, Olympian generator-diesel engine liquid
cooled, Aquastar titrator, Aquastar solid evaporator, stainless steel
fabrication for cleanrooms, rubber base to cleanroom, pipes and sprinkler heads,
faucet, and vinyl curtain wall panel.
The personal property to be transferred shall be located at the
premises of the Transferor at the following two locations: 1625 Harbor Bay
Parkway, Technology Center at Harbor Bay, Alameda, CA 94501; and 1440 4th
Street, Berkeley, CA 94710.
Such sale and leaseback transaction is to be consummated on or after
October 2, 1993. Dated: September 16, 1993.
MMC/GATX PARTNERSHIP NO. 1,
By GATX Capital Corporation,
as Agent
By: David G. Mayer
Name: David G. Mayer
Title: Assistant Secretary
CNS 1118716
95
This FINANCING STATEMENT is presented for filing and will remain effective
with certain exceptions for a period of five years from the date of filing
pursuant to Section 9403 of the California Uniform Commercial Code.
- ----------------------------------------------------------------------------------------------------------------------------------
1. DEBTOR (LAST NAME FIRST--IF AN INDIVIDUAL) (LESSEE) 1A. SOCIAL SECURITY OR FEDERAL TAX NO.
CALYPTE BIOMEDICAL CORPORATION
- ----------------------------------------------------------------------------------------------------------------------------------
1B. MAILING ADDRESS 1C. CITY, STATE 1D. ZIP CODE
1440 FOURTH STREET BERKELEY, CALIFORNIA 94710
- ----------------------------------------------------------------------------------------------------------------------------------
2. ADDITIONAL DEBTOR (IF ANY) (LAST NAME FIRST--IF AN INDIVIDUAL) 2A. SOCIAL SECURITY OR FEDERAL TAX NO.
- ----------------------------------------------------------------------------------------------------------------------------------
2B. MAILING ADDRESS 2C. CITY, STATE 2D. ZIP CODE
- ----------------------------------------------------------------------------------------------------------------------------------
3. DEBTOR'S TRADE NAMES OR STYLES (IF ANY) 3A. FEDERAL TAX NUMBER
- ----------------------------------------------------------------------------------------------------------------------------------
4. (LESSOR) MMC/GATX PARTNERSHIP NO. I 4A. SOCIAL SECURITY NO., FEDERAL TAX NO.
NAME c/o GATX CAPITAL CORPORATION, AS AGENT OR BANK TRANSIT AND A.B.A. NO.
MAILING ADDRESS FOUR EMBARCADERO CENTER, SUITE 2200
CITY SAN FRANCISCO STATE CALIFORNIA ZIP CODE 94111
- ----------------------------------------------------------------------------------------------------------------------------------
5. ASSIGNEE OF SECURED PARTY (IF ANY) 5A. SOCIAL SECURITY NO., FEDERAL TAX NO.
NAME OR BANK TRANSIT AND A.B.A. NO.
MAILING ADDRESS
CITY STATE ZIP CODE
- ----------------------------------------------------------------------------------------------------------------------------------
6. This FINANCING STATEMENT covers the following types or items of property (include description of real property on which
located and owner of record when required by Instruction 4).
This filing is made for notice purposes only. The parties acknowledge and agree that the Master Equipment Lease Agreement is a
true lease and that, in accordance with Section 9-408 of the Uniform Commercial Code, the execution and filing of this Financing
Statement shall not of itself be a factor or evidence to the contrary. The parties acknowledge that the equipment and other
property covered by this Financing Statement shall be personal property and shall not constitute fixtures for any purposes and
that the execution of this Financing Statement shall not be used as evidence to the contrary.
See also "Schedule 1 to the Financing Statement" attached hereto and incorporated herein by this reference.
- ----------------------------------------------------------------------------------------------------------------------------------
7. CHECK [X] 7A. [X] PRODUCTS OF COLLATERAL 7B. DEBTOR(S) SIGNATURE NOT REQUIRED IN ACCORDANCE WITH
IF APPLICABLE ARE ALSO COVERED INSTRUCTION 5(a) ITEM:
[ ] (1) [ ] (2) [ ] (3) [ ] (4)
- ----------------------------------------------------------------------------------------------------------------------------------
8. CHECK [X]
IF APPLICABLE [ ] DEBTOR IS A "TRANSMITTING UTILITY" IN ACCORDANCE WITH UCC SECTION 9105 (1) (n)
- ----------------------------------------------------------------------------------------------------------------------------------
9. CALYPTE BIOMEDICAL CORPORATION DATE: 9/27/93 C 10. THIS SPACE FOR USE OF FILING OFFICER
O (DATE, TIME, FILE NUMBER
By: [SIG] D AND FILING OFFICER)
SIGNATURE(S) OF DEBTOR(S) Title: CFO E
- ---------------------------------------------------------------------
CALYPTE BIOMEDICAL CORPORATION 1
TYPE OR PRINT NAME(S) OF DEBTOR(S)
- ------------------------------------------------------------- 2
3
SIGNATURE(S) OF SECURED PARTY(IES) 4
- -------------------------------------------------------------
MMC/GATX PARTNERSHIP NO. I 5
By: GATX Capital Corporation, as Agent
TYPE OR PRINT NAME(S) OF SECURED PARTY(IES) 6
=============================================================
11. Return copy to: 7
NAME / /
ADDRESS Robert F. McLaughlin 8
CITY Hosie, Wes, McLaughlin & Sacks
STATE One Sansome Street, 14th Floor 9
ZIP CODE San Francisco, CA 94104
/ / 0
=============================================================
FORM UCC-1--
Approved by the Secretary of State
==================================================================================================================================
(1) FILING OFFICER COPY
[RECEIVED STAMP]
96
This FINANCING STATEMENT is presented for filing and will remain effective
with certain exceptions for a period of five years from the date of filing
pursuant to Section 9403 of the California Uniform Commercial Code.
- ----------------------------------------------------------------------------------------------------------------------------------
1. DEBTOR (LAST NAME FIRST--IF AN INDIVIDUAL) (LESSEE) 1A. SOCIAL SECURITY OR FEDERAL TAX NO.
CALYPTE BIOMEDICAL CORPORATION
- ----------------------------------------------------------------------------------------------------------------------------------
1B. MAILING ADDRESS 1C. CITY, STATE 1D. ZIP CODE
1440 FOURTH STREET BERKELEY, CALIFORNIA 94710
- ----------------------------------------------------------------------------------------------------------------------------------
2. ADDITIONAL DEBTOR (IF ANY) (LAST NAME FIRST--IF AN INDIVIDUAL) 2A. SOCIAL SECURITY OR FEDERAL TAX NO.
- ----------------------------------------------------------------------------------------------------------------------------------
2B. MAILING ADDRESS 2C. CITY, STATE 2D. ZIP CODE
- ----------------------------------------------------------------------------------------------------------------------------------
3. DEBTOR'S TRADE NAMES OR STYLES (IF ANY) 3A. FEDERAL TAX NUMBER
- ----------------------------------------------------------------------------------------------------------------------------------
4. (LESSOR) MMC/GATX PARTNERSHIP NO. I 4A. SOCIAL SECURITY NO., FEDERAL TAX NO.
NAME c/o GATX CAPITAL CORPORATION, AS AGENT OR BANK TRANSIT AND A.B.A. NO.
MAILING ADDRESS FOUR EMBARCADERO CENTER, SUITE 2200
CITY SAN FRANCISCO STATE CALIFORNIA ZIP CODE 94111
- ----------------------------------------------------------------------------------------------------------------------------------
5. ASSIGNEE OF SECURED PARTY (IF ANY) 5A. SOCIAL SECURITY NO., FEDERAL TAX NO.
NAME OR BANK TRANSIT AND A.B.A. NO.
MAILING ADDRESS
CITY STATE ZIP CODE
- ----------------------------------------------------------------------------------------------------------------------------------
6. This FINANCING STATEMENT covers the following types or items of property (include description of real property on which
located and owner of record when required by Instruction 4).
This filing is made for notice purposes only. The parties acknowledge and agree that the Master Equipment Lease Agreement is a
true lease and that, in accordance with Section 9-408 of the Uniform Commercial Code, the execution and filing of this Financing
Statement shall not of itself be a factor or evidence to the contrary. The parties acknowledge that the equipment and other
property covered by this Financing Statement shall be personal property and shall not constitute fixtures for any purposes and
that the execution of this Financing Statement shall not be used as evidence to the contrary.
See also "Schedule 1 to the Financing Statement" attached hereto and incorporated herein by this reference.
- ----------------------------------------------------------------------------------------------------------------------------------
7. CHECK [X] 7A. [X] PRODUCTS OF COLLATERAL 7B. DEBTOR(S) SIGNATURE NOT REQUIRED IN ACCORDANCE WITH
IF APPLICABLE ARE ALSO COVERED INSTRUCTION 5(a) ITEM:
[ ] (1) [ ] (2) [ ] (3) [ ] (4)
- ----------------------------------------------------------------------------------------------------------------------------------
8. CHECK [X]
IF APPLICABLE [ ] DEBTOR IS A "TRANSMITTING UTILITY" IN ACCORDANCE WITH UCC SECTION 9105 (1) (n)
- ----------------------------------------------------------------------------------------------------------------------------------
9. CALYPTE BIOMEDICAL CORPORATION DATE: 9/27/93 C 10. THIS SPACE FOR USE OF FILING OFFICER
O (DATE, TIME, FILE NUMBER
By: [SIG] D AND FILING OFFICER)
SIGNATURE(S) OF DEBTOR(S) Title: CFO E
- ---------------------------------------------------------------------
CALYPTE BIOMEDICAL CORPORATION 1
TYPE OR PRINT NAME(S) OF DEBTOR(S)
- ------------------------------------------------------------- 2
3
SIGNATURE(S) OF SECURED PARTY(IES) 4
- -------------------------------------------------------------
MMC/GATX PARTNERSHIP NO. I 5 [STAMP]
By: GATX Capital Corporation, as Agent
TYPE OR PRINT NAME(S) OF SECURED PARTY(IES) 6
=============================================================
11. Return copy to: 7
NAME / /
ADDRESS Robert F. McLaughlin 8
CITY Hosie, Wes, McLaughlin & Sacks
STATE One Sansome Street, 14th Floor 9
ZIP CODE San Francisco, CA 94104
/ / 0
=============================================================
FORM UCC-1--
Approved by the Secretary of State
==================================================================================================================================
(4) FILE COPY--DEBTOR
97
SCHEDULE 1 TO
FINANCING STATEMENT
DEBTOR (Lessee): CALYPTE BIOMEDICAL CORPORATION
SECURED PARTY (Lessor): MMC/GATX Partnership No. I
ITEM 6: The items which shall constitute Lessor's equipment and other
personal property under the Master Equipment Lease Agreement, dated as of
August 20, 1993, as amended or supplemented from time to time (the "Lease"),
between MMC/GATX Partnership No. I ("MMC/GATX"), and Calypte Biomedical
Corporation ("Lessee," such term and other terms not defined herein having the
meaning referred to in the Lease) and the Schedules to the Lease, are as
follows:
All right, title and interest of the Lessee in and to each and every
Unit of equipment, tenant improvements, fixtures, software, parts, components
or personal property covered by the Lease (including all Schedules executed in
connection therewith) and as further described below (which such equipment,
tenant improvements, fixtures, software, parts, components and personal
property shall remain subject to the lien of the Lease until specifically
released in writing) whether or not any such equipment, tenant improvements,
fixtures, software, parts, components and personal property is thereafter
purported to be sold, destroyed, released, subleased, assigned, conveyed,
transferred or otherwise disposed of; together with all accessories, equipment,
parts and appurtenances appertaining or attached to any of such equipment,
tenant improvements, fixtures, software, parts, components or personal
property, whether now owned or hereafter acquired, and all substitutions,
renewals or replacements of and additions, improvements, accessions and
accumulations to any and all of such equipment, tenant improvements, fixtures,
software, parts, components or personal property, together with all the income,
profits and avails therefrom and the proceeds thereof, including, without
limitation, insurance payments and all proceeds from sales or other
dispositions thereof.
The Lease (including all schedules executed in connection therewith)
is intended by the parties thereto to be a true lease. However, if
notwithstanding the intent of the parties, the Lease is held to create a
secured financing or lease for security, the Lessee shall be deemed to have
granted to MMC/GATX a security interest in the above-described equipment and
other property.
The specific Units constituting equipment and personal property under
Schedules 1, 2 and 3 to the Lease include, without limitation, the equipment
and property set forth on the attached Annex A which is made a part hereof.
The equipment and personal property set forth on the attached Annex A
was sold by Lessee to Lessor prior to being leased by Lessor to Lessee.
Other Security:
That certain Security Deposit and proceeds thereof under the Security
Deposit Pledge Agreement, dated as of August 20, 1993, between MMC/GATX and
Lessee.
1
98
22-Sep-93 CALYPTE BIOMEDICAL/SCHEDULE NO. 1 PAGE 1
ANNEX A
ALL UNITS LOCATED AT:
1440 FOURTH STREET
BERKELEY, CA 94710
ASSET COST OF
# VENDOR QTY ITEM DESCRIPTION INVOICE # UNIT
- ----- ------ --- ---------------- --------- ---------
TENANT IMPROVEMENTS
- -------------------
R-027 4 PHASE ELECTRIC GENERATOR HOOKUP & 1963 3,515.90
CLEANROOM POWER & LIGHTING
- --------------------------------------------------------------------------------------------------------------------------------
R-027 DELUCCHI SHEET METAL STAINLESS STEEL FABRICATION 42937 162.00
FOR CLEANROOMS
- --------------------------------------------------------------------------------------------------------------------------------
R-027 DELUCCHI SHEET METAL STAINLESS STEEL FABRICATION 42936 147.50
FOR CLEANRROMS
- --------------------------------------------------------------------------------------------------------------------------------
R-027 DELUCCHI SHEET METAL STAINLESS STEEL FABRICATION 42950 92.00
FOR CLEANROOMS
- --------------------------------------------------------------------------------------------------------------------------------
R-027 LO HEATH LABOR AND MATERIALS FOR 1445 281.00
PLUMBING SERVICES AS FOLLOWS:
RELOCATE 2 FIRE SPRINKLER HEADS
CAP 2 PVC PIPES
- --------------------------------------------------------------------------------------------------------------------------------
R-027 LO HEALTH LABOR AND MATERIALS FOR 1446 118.50
PLUMBING SERVICES AS FOLLOWS:
REBUILD 1 CHICAGO LAB FAUCET
REPAIR LEAK UNDER LAB SINK
- --------------------------------------------------------------------------------------------------------------------------------
R-027 MICROCANTAMINATION INSTALLATION OF 1 TRAX IND. 549 100.00
CONTROL SERVICES PRODUCTS VINYL CURTAIN WALL
PANEL; MOVE 1 FRAME SUPPORT 6"
- --------------------------------------------------------------------------------------------------------------------------------
R-027 PETER S. BERRY MATERIALS AND LABOR TO 15064 180.00
RELOCATE CENTRIFUGE OUTLET
TO CLEANROOM
- --------------------------------------------------------------------------------------------------------------------------------
R-027 SAN BRUNO SHEET METAL INSTALLATION OF: 4/21/93 12,870.00
1 7 1/2 TON HEAT PUMP
1 5 TON HEAT PUMP ON ROOF AREA
W/SPRING ICELATORS
ALL DUCT WORK W/RETURN &
SUPPLY DAMPERS
FARR GLIDE FILTER BOXES
SUPPLY OUTSIDE AIR W/SEPARATE FILTERS
REMOVE OLD SKYLIGHT & INSTALL
2 X 4 & PLYWOOD W/METAL COVER
- --------------------------------------------------------------------------------------------------------------------------------
R-027 SAN BRUNO SHEET METAL INSTALLED ALL DUCT WORK IN 4/30/93 8,865.00
CEILING AREA
- --------------------------------------------------------------------------------------------------------------------------------
R-027 TRAX INDUSTRIAL 1 CUSTOM ANTI-STATIC SOFTWALL 4536 1,046.00
PRODUCTS PANEL FOR CLEANROOM
- --------------------------------------------------------------------------------------------------------------------------------
M-027 4 PHASE ELECTRIC EMERGENCY POWER SET-UP 4/21/93 5,250.00
- --------------------------------------------------------------------------------------------------------------------------------
M-026 J&M ENTERPRISES PHASE III-WAREHOUSE 1440.1 5,385.00
- --------------------------------------------------------------------------------------------------------------------------------
GRAND TOTAL $38,012.90
==========
99
22-Sep-93 CALYPTE BIOMEDICAL/SCHEDULE NO. 2 PAGE 1
ANNEX A
ALL UNITS LOCATED AT:
1440 FOURTH STREET
BERKELEY, CA 94710
ASSET COST OF
# VENDOR QTY ITEM DESCRIPTION MODEL # PO # INVOICE # SERIAL # UNIT
- ----- --------------------- ----- ------------------------ --------- ------ --------- -------- ---------
LAB EQUIPMENT
- -------------
1065 AIR TECHNIQUES 1 PARTICULATE DET. UNIT - TDA-2E 10181 6276 10065 5,690.00
PORTABLE AEROSOL PHOTOMETER
WITH PARTS
1 PORTABLE AEROSOL GENERATOR TDA-4A 9912 1,250.00
- ---------------------------------------------------------------------------------------------------------------------------------
1112 BAXTER 1 BIOFUGE 15 MICROCENTRIFUGE 10288 9014760 1,552.50
1 ANGLE ROTOR 240.00
- ---------------------------------------------------------------------------------------------------------------------------------
1051 BIO-TEK 1 MICROPLATE READER EL312 10189 118914 85259 5,800.00
- ---------------------------------------------------------------------------------------------------------------------------------
R-027 ENVIROFLEX 1 PORTABLE SOFTWALL CLEAN 10024 DEPOSIT 7,430.00
ROOM 16' X 10'; 4 HEPA; 3 LIGHTS 1025
1 PORTABLE SOFTWALL CLEAN 1031 7,019.00
ROOM 14' X 12'; 3 HEPA; 3 LIGHTS
1 PORTABLE SOFTWALL CLEAN 6,732.00
ROOM 12' X 11'; 3 HEPA; 3 LIGHTS
- ---------------------------------------------------------------------------------------------------------------------------------
1123 ISCO 1 UA-6 DETECTOR WITH TYPE 11 10430 190666-00 3,500.00
OPTICAL UNIT
1 DIVERTER VALVE 275.00
- ---------------------------------------------------------------------------------------------------------------------------------
KAYE INSTRUMENTS 1 PORTABLE VALIDATOR ASSY. 10294 53652 8,000.00
1 D4 PLUS ANALOG PANEL ASSY. 820.00
1 PROBE ASSY. 1,950.00
- ---------------------------------------------------------------------------------------------------------------------------------
KAYE INSTRUMENTS 1 CALIBRATOR - 115V LTR-50 10294 53829 5,500.00
- ---------------------------------------------------------------------------------------------------------------------------------
MED-EQUIP 1 STEAM GENERATOR 9291 5648 N3-13378 13,000.00
STAINLESS STEEL
- ---------------------------------------------------------------------------------------------------------------------------------
1054 MILLIPORE 1 HPLC INERT PROTEIN 625 LC 10115 719923 24,109.00
PURIFICATION SYSTEM
1 WATERS FRACTION COLLECTOR 486 3,314.60
1 DUAL PEN RECORDER SE-120 2,009.70
- ---------------------------------------------------------------------------------------------------------------------------------
1054 MILLIPORE 1 AP MINICOLUM 5MM X 100MM 10115 719237 215.30
1 DIVERTER VALVE 301.40
- ---------------------------------------------------------------------------------------------------------------------------------
1114 PETERSON POWER SYSTEM 1 OLYMPIAN GENERATOR - DIESEL CD075 10087 E099301 2007042 15,276.18
ENGINE LIQUID COOLED
1115 1 OLYMPIAN DOUBLE WALL TANK CTS020Y 93A01704W 2,486.82
- ---------------------------------------------------------------------------------------------------------------------------------
1052 SHANDON UPSHAW 1 CYTOSPIN 3 (SLIDE MAKING 10196 3575830 4,995.00
APPARATUS)
- ---------------------------------------------------------------------------------------------------------------------------------
1113 SIERRA INSTRUMENTS 1 HOT WIRE ANEMOMETER 634 10519 41849 18593 1,675.00
- ---------------------------------------------------------------------------------------------------------------------------------
1088 TERRA UNIVERSAL 1 DESICCATOR CHAMBER 10247 19065 2,088.00
PLEXIGLASS 45" X 24" X 60", 10
DOORS - HERMETICALLY SEALED
56 PLEXIGLASS SHELF W/80W GUARD 840.00
1 STAND; 3" H, STEEL 198.00
4 CASTER WITH BRAKE 128.00
- ---------------------------------------------------------------------------------------------------------------------------------
1039 VWR 2 ROTARY CULTURE APPARATUS DECK 10117 5E-07 910.80
- ---------------------------------------------------------------------------------------------------------------------------------
1111 VWR 1 WHEATON ROTARY CULTURE BASE 10249 5E-07 1,311.00
4 ROTARY CULTURE DECK 1,548.00
- ---------------------------------------------------------------------------------------------------------------------------------
100
22-Sep-93 CALYPTE BIOMEDICAL/SCHEDULE NO. 2 PAGE 2
ANNEX A
ALL UNITS LOCATED AT:
1440 FOURTH STREET
BERKELEY, CA 94710
ASSET COST OF
# VENDOR QTY ITEM DESCRIPTION MODEL # PO # INVOICE # SERIAL # UNIT
- ----- --------------------- ----- ------------------------ --------- ------ --------- -------- ---------
1109 VWR 1 AQUASTAR TITRATOR C2000 10363 5E-07 5,328.00
1 AQUASTAR SOLID EVAPORATOR EV-ST 4,496.00
- ---------------------------------------------------------------------------------------------------------------------------------
SUBTOTAL LAB EQUIPMENT $139,989.30
-----------
- ---------------------------------------------------------------------------------------------------------------------------------
FURNITURE
- ---------
1074 AC PAPER 1 FILE - 4 DR LATERAL; HON; LEGAL; 10238 110120 629.00
PUTTY
- ---------------------------------------------------------------------------------------------------------------------------------
1086 NORLAB HANSON 2 LAB BENCHES; PROTABLE; TABLES 10411 1621 2,979.00
1087 AND SHELVES, BEIGE
- ---------------------------------------------------------------------------------------------------------------------------------
SUBTOTAL FURNITURE $3,608.00
---------
- ---------------------------------------------------------------------------------------------------------------------------------
COMPUTER EQUIPMENT
- ------------------
1120 COMPUTERWARE 1 CENTRIS 610 CPU W/80 MB 10542 500492 F2319LHBCN2 1,597.00
HARDDRIVE WITH 4MB MEMORY &
APPLE KEYBOARD II
- ---------------------------------------------------------------------------------------------------------------------------------
1117 COMPUTERWARE 1 CENTRIS 610 CPU W/80 MB 10549 500589 F2314LAXCN2 1,398.00
HARDDRIVE AND APPLE KEYBOARD
- ---------------------------------------------------------------------------------------------------------------------------------
1081 FUTURE NOW 1 SEIKO MONITOR - 14" COLOR CM1445 10381 368215 27M52738 480.00
- ---------------------------------------------------------------------------------------------------------------------------------
1121 FUTURE NOW 1 SEIKO MONITOR - 14" COLOR CM1445 10548 S0400477 26M50938 480.00
1118 1 SEIKO MONITOR - 14" COLOR CM1445 27M56938 480.00
- ---------------------------------------------------------------------------------------------------------------------------------
1082 MAC PRO SYSTEMS 1 MAC IISI 40/3 10380 JW0279 FC2252XTC56 838.95
- ---------------------------------------------------------------------------------------------------------------------------------
SUBTOTAL COMPUTERS $5,273.95
---------
GRAND TOTAL $148,871.25
===========
101
22-Sep-93 CALYPTE BIOMEDICAL/SCHEDULE NO. 3 PAGE 1
ANNEX A
ALL UNITS LOCATED AT:
1440 FOURTH STREET
BERKELEY, CA 94710
ASSET COST OF NBV
# VENDOR QTY ITEM DESCRIPTION MODEL # PO # INVOICE # SERIAL # UNIT COST
- ----- ------ --- ---------------- ------- ---- --------- -------- -------- -----
LAB EQUIPMENT
- -------------
1034 COLE-PARMER 1 SCALE MIXER, STIR PAK 115 W/ 10012 1500795 M92002749 721.00 692.00
CONTROLLER, MOTOR, SUPPORT
PLATFORM, PIVOT MOUNT & CLAMP
- ------------------------------------------------------------------------------------------------------------------------------------
1067 FISHER 1 CORROSIVE SAFETY CABINET 9768 982505 405.00 384.00
- ------------------------------------------------------------------------------------------------------------------------------------
1016 FISHER 1 PH METER 340 10001 1428579 495.30 464.00
- ------------------------------------------------------------------------------------------------------------------------------------
1038 FORMA 1 INCUBATOR-REACH IN LARGE 9906 2375900 36069 6,028.00 5,777.00
CAPACITY 32 C.F.
1 RECORDER 719.00 659.00
- ------------------------------------------------------------------------------------------------------------------------------------
1036 HARRIS MANUFACTURING 1 FREEZER CHEST -50C 9976 49995 P23C-136269-P1 3,194.00 3,088.00
- ------------------------------------------------------------------------------------------------------------------------------------
1040 SCIENTIFIC INSTRUMENTS 1 OLYMPUS MICROSCOPE- 10025 78497 13,829.00 13,253.00
FLUORESCENT WITH ACCESSORIES
- ------------------------------------------------------------------------------------------------------------------------------------
1039 VWR 1 WHEATON ROTARY CULTURE BASE 9996 45976860 1,249.00 1,186.00
1 ROTARY CULTURE DECK 379.00 354.00
- ------------------------------------------------------------------------------------------------------------------------------------
SUBTOTAL LAB EQUIPMENT $27,019.30 $25,827.00
---------------------
- ------------------------------------------------------------------------------------------------------------------------------------
FURNITURE
- ---------
1024 AC PAPER & SUPPLY 1 SCHWAB INSULATE LEGAL FILE 4CFC-5000 9940 106317 929.25 852.00
CABINET 4 DRAWER PUTTY
- ------------------------------------------------------------------------------------------------------------------------------------
1022 AC PAPER 1 FILE CABINET-INSULATED 4DR 9940 107401 445.00 408.00
LATERAL; PUTTY LEGAL
- ------------------------------------------------------------------------------------------------------------------------------------
AS-008 CVL INSTALLATIONS 2 HERMAN MILLER WORKSTATIONS 10133 4/6/93 2,500.00 2,292.00
8' X 10' FOR FAX & PRINTER; GRAY
- ------------------------------------------------------------------------------------------------------------------------------------
1013 SAM CLAR OFFICE FURNITURE 1 DESK-WOOD 38X72 USED 9926 41118 299.95 270.00
1014 1 CREDENZA-WOOD USED 299.95 270.00
1042 1 FILE-2 DR LATERAL WOOD 174.95 157.00
- ------------------------------------------------------------------------------------------------------------------------------------
SUBTOTAL FURNITURE $4,649.10 $4,249.00
--------------------
- ------------------------------------------------------------------------------------------------------------------------------------
OFFICE EQUIPMENT
- ----------------
1041 TAYLOR MADE 1 CANNON PLAIN PAPER FAX L775 10010 PUR. SPEC. 4,068.00 3,729.00
- ------------------------------------------------------------------------------------------------------------------------------------
SUBTOTAL OFFICE EQUIPMENT $4,068.00 $3,729.00
- ------------------------------------------------------------------------------------------------------------------------------------
COMPUTER EQUIPMENT
- ------------------
1044 COMPUTERWARE 1 TRINITRON MONITOR-14" COLOR 9931 679050 S1237RK04 529.00 476.00
1008 1 APPLE MONITOR-12" MONOCHROME SG2341VVC97 199.00 179.00
- ------------------------------------------------------------------------------------------------------------------------------------
1010 COMPUTERWARE (UNION BANK) 1 MAC IIsi CPU W/40MB HARD DRIVE II SI 9859 878183 FC2234C1C56 899.00 824.00
1084 1 MAC IIsi CPU W/40MB HARD DRIVE II SI FC22347FC56 899.00 824.00
1011 1 MAC IIsi CPU W/40MB HARD DRIVE II SI FC22335YC56 899.00 824.00
1007 1 MAC IIsi CPU W/40MB HARD DRIVE II SI FC22347BC56 899.00 824.00
- ------------------------------------------------------------------------------------------------------------------------------------
1009 PERIPHERAL LAND INCORPORATED 1 INFINITY EXTERNAL DRIVE 88-R/W44 9898 94549 16055 590.00 541.00
- ------------------------------------------------------------------------------------------------------------------------------------
SUBTOTAL COMPUTER EQUIPMENT $4,914.00 $4,492.00
--------------------
GRAND TOTAL $40,650.40 $38.297.00
=====================
102
This FINANCING STATEMENT is presented for filing and will remain effective
with certain exceptions for a period of five years from the date of filing
pursuant to Section 9403 of the California Uniform Commercial Code.
- ----------------------------------------------------------------------------------------------------------------------------------
1. DEBTOR (LAST NAME FIRST--IF AN INDIVIDUAL) (TRANSFEROR) 1A. SOCIAL SECURITY OR FEDERAL TAX NO.
CALYPTE BIOMEDICAL CORPORATION
- ----------------------------------------------------------------------------------------------------------------------------------
1B. MAILING ADDRESS 1C. CITY, STATE 1D. ZIP CODE
1440 FOURTH STREET BERKELEY, CALIFORNIA 94710
- ----------------------------------------------------------------------------------------------------------------------------------
2. ADDITIONAL DEBTOR (IF ANY) (LAST NAME FIRST--IF AN INDIVIDUAL) 2A. SOCIAL SECURITY OR FEDERAL TAX NO.
- ----------------------------------------------------------------------------------------------------------------------------------
2B. MAILING ADDRESS 2C. CITY, STATE 2D. ZIP CODE
- ----------------------------------------------------------------------------------------------------------------------------------
3. DEBTOR'S TRADE NAMES OR STYLES (IF ANY) 3A. FEDERAL TAX NUMBER
- ----------------------------------------------------------------------------------------------------------------------------------
4. (TRANSFEREE) MMC/GATX PARTNERSHIP NO. I 4A. SOCIAL SECURITY NO., FEDERAL TAX NO.
NAME c/o GATX CAPITAL CORPORATION, AS AGENT OR BANK TRANSIT AND A.B.A. NO.
MAILING ADDRESS FOUR EMBARCADERO CENTER, SUITE 2200
CITY SAN FRANCISCO STATE CALIFORNIA ZIP CODE 94111
- ----------------------------------------------------------------------------------------------------------------------------------
5. ASSIGNEE OF SECURED PARTY (IF ANY) 5A. SOCIAL SECURITY NO., FEDERAL TAX NO.
NAME OR BANK TRANSIT AND A.B.A. NO.
MAILING ADDRESS
CITY STATE ZIP CODE
- ----------------------------------------------------------------------------------------------------------------------------------
6. This FINANCING STATEMENT covers the following types or items of property (include description of real property on which
located and owner of record when required by Instruction 4).
See Exhibit A attached hereto and incorporated herein by this reference.
- ----------------------------------------------------------------------------------------------------------------------------------
7. CHECK [X] 7A. [X] PRODUCTS OF COLLATERAL 7B. DEBTOR(S) SIGNATURE NOT REQUIRED IN ACCORDANCE WITH
IF APPLICABLE ARE ALSO COVERED INSTRUCTION 5(a) ITEM:
[ ] (1) [ ] (2) [ ] (3) [ ] (4)
- ----------------------------------------------------------------------------------------------------------------------------------
8. CHECK [X]
IF APPLICABLE [ ] DEBTOR IS A "TRANSMITTING UTILITY" IN ACCORDANCE WITH UCC SECTION 9105 (1) (n)
- ----------------------------------------------------------------------------------------------------------------------------------
9. CALYPTE BIOMEDICAL CORPORATION DATE: 9/27/93 C 10. THIS SPACE FOR USE OF FILING OFFICER
O (DATE, TIME, FILE NUMBER
By: [SIG] D AND FILING OFFICER)
SIGNATURE(S) OF DEBTOR(S) Title: CFO E
- ---------------------------------------------------------------------
CALYPTE BIOMEDICAL CORPORATION 1
TYPE OR PRINT NAME(S) OF DEBTOR(S)
- ------------------------------------------------------------- 2
3
SIGNATURE(S) OF SECURED PARTY(IES) 4
- -------------------------------------------------------------
MMC/GATX PARTNERSHIP NO. I 5
By: GATX Capital Corporation, as Agent
TYPE OR PRINT NAME(S) OF SECURED PARTY(IES) 6
=============================================================
11. Return copy to: 7
NAME / /
ADDRESS Robert F. McLaughlin 8
CITY Hosie, Wes, McLaughlin & Sacks
STATE One Sansome Street, 14th Floor 9
ZIP CODE San Francisco, CA 94104
/ / 0
=============================================================
FORM UCC-1--
Approved by the Secretary of State
==================================================================================================================================
(1) FILING OFFICER COPY
[RECEIVED STAMP]
103
This FINANCING STATEMENT is presented for filing and will remain effective
with certain exceptions for a period of five years from the date of filing
pursuant to Section 9403 of the California Uniform Commercial Code.
- ----------------------------------------------------------------------------------------------------------------------------------
1. DEBTOR (LAST NAME FIRST--IF AN INDIVIDUAL) (TRANSFEROR) 1A. SOCIAL SECURITY OR FEDERAL TAX NO.
CALYPTE BIOMEDICAL CORPORATION
- ----------------------------------------------------------------------------------------------------------------------------------
1B. MAILING ADDRESS 1C. CITY, STATE 1D. ZIP CODE
1440 FOURTH STREET BERKELEY, CALIFORNIA 94710
- ----------------------------------------------------------------------------------------------------------------------------------
2. ADDITIONAL DEBTOR (IF ANY) (LAST NAME FIRST--IF AN INDIVIDUAL) 2A. SOCIAL SECURITY OR FEDERAL TAX NO.
- ----------------------------------------------------------------------------------------------------------------------------------
2B. MAILING ADDRESS 2C. CITY, STATE 2D. ZIP CODE
- ----------------------------------------------------------------------------------------------------------------------------------
3. DEBTOR'S TRADE NAMES OR STYLES (IF ANY) 3A. FEDERAL TAX NUMBER
- ----------------------------------------------------------------------------------------------------------------------------------
4. (TRANSFEREE) MMC/GATX PARTNERSHIP NO. I 4A. SOCIAL SECURITY NO., FEDERAL TAX NO.
NAME c/o GATX CAPITAL CORPORATION, AS AGENT OR BANK TRANSIT AND A.B.A. NO.
MAILING ADDRESS FOUR EMBARCADERO CENTER, SUITE 2200
CITY SAN FRANCISCO STATE CALIFORNIA ZIP CODE 94111
- ----------------------------------------------------------------------------------------------------------------------------------
5. ASSIGNEE OF SECURED PARTY (IF ANY) 5A. SOCIAL SECURITY NO., FEDERAL TAX NO.
NAME OR BANK TRANSIT AND A.B.A. NO.
MAILING ADDRESS
CITY STATE ZIP CODE
- ----------------------------------------------------------------------------------------------------------------------------------
6. This FINANCING STATEMENT covers the following types or items of property (include description of real property on which
located and owner of record when required by Instruction 4).
See Exhibit A attached hereto and incorporated herein by this reference.
- ----------------------------------------------------------------------------------------------------------------------------------
7. CHECK [X] 7A. [X] PRODUCTS OF COLLATERAL 7B. DEBTOR(S) SIGNATURE NOT REQUIRED IN ACCORDANCE WITH
IF APPLICABLE ARE ALSO COVERED INSTRUCTION 5(a) ITEM:
[ ] (1) [ ] (2) [ ] (3) [ ] (4)
- ----------------------------------------------------------------------------------------------------------------------------------
8. CHECK [X]
IF APPLICABLE [ ] DEBTOR IS A "TRANSMITTING UTILITY" IN ACCORDANCE WITH UCC SECTION 9105 (1) (n)
- ----------------------------------------------------------------------------------------------------------------------------------
9. CALYPTE BIOMEDICAL CORPORATION DATE: 9/27/93 C 10. THIS SPACE FOR USE OF FILING OFFICER
O (DATE, TIME, FILE NUMBER
By: [SIG] D AND FILING OFFICER)
SIGNATURE(S) OF DEBTOR(S) Title: CFO E
- ---------------------------------------------------------------------
CALYPTE BIOMEDICAL CORPORATION 1
TYPE OR PRINT NAME(S) OF DEBTOR(S)
- ------------------------------------------------------------- 2
3
SIGNATURE(S) OF SECURED PARTY(IES) 4
- -------------------------------------------------------------
MMC/GATX PARTNERSHIP NO. I 5 [STAMP]
By: GATX Capital Corporation, as Agent
TYPE OR PRINT NAME(S) OF SECURED PARTY(IES) 6
=============================================================
11. Return copy to: 7
NAME / /
ADDRESS Robert F. McLaughlin 8
CITY Hosie, Wes, McLaughlin & Sacks
STATE One Sansome Street, 14th Floor 9
ZIP CODE San Francisco, CA 94104
/ / 0
=============================================================
FORM UCC-1--
Approved by the Secretary of State
==================================================================================================================================
(4 FILE COPY--DEBTOR
104
EXHIBIT A TO
FINANCING STATEMENT
DEBTOR (Transferor): Calypte Biomedical Corporation
SECURED PARTY (Transferee): MMC/GATX Partnership No. I
ITEM 6
NOTICE OF INTENDED
TRANSFER AND
LEASEBACK
Notice is hereby given that Calypte Biomedical Corporation, a
California corporation, (the "Transferor"), whose address is 1440 Fourth
Street, Berkeley, CA 94710, intends to transfer certain personal property to
MMC/GATX Partnership No. I, a California partnership (the "Intended
Transferee") whose address is c/o GATX Capital Corporation, Four Embarcadero
Center, Suite 2200, San Francisco, California 94111; and that said intended
Transferee (Lessor) intends to leaseback to said Transferor (Lessee), the said
personal property, a general description of which is as follows, to wit:
certain scientific laboratory and test equipment, manufacturing equipment,
tenant improvements, fixtures, furniture and personal property, including,
without limitation, a portable aerosol photometer and generator, a biofuge 15
microcentrifuge, angle rotor, a microplate reader, portable softwall clean
rooms, UA-6 detector, portable validator assy., probe assy., a calibrator, a
steam generator, an HPLC inert protein purification system, Olympian
generator-diesel engine liquid cooled, Aquastar titrator, Aquastar solid
evaporator, stainless steel fabrication for cleanrooms, rubber base to
cleanroom, pipes and sprinkler heads, faucet, and vinyl curtain wall panel.
The personal property to be transferred shall be located at the
premises of the Transferor at the following two locations:
1625 Harbor Bay Parkway, Technology Center at Harbor Bay, Alameda, CA
94501; and
1440 4th Street, Berkeley, CA 94710.
Such sale and leaseback transaction is to be consummated on or after
October 2, 1993.
105
FIXTURE FILING
This FINANCING STATEMENT is presented for filing and will remain effective
with certain exceptions for a period of five years from the date of filing
pursuant to Section 9403 of the California Uniform Commercial Code.
- ----------------------------------------------------------------------------------------------------------------------------------
1. DEBTOR (LAST NAME FIRST--IF AN INDIVIDUAL) (LESSEE) 1A. SOCIAL SECURITY OR FEDERAL TAX NO.
CALYPTE BIOMEDICAL CORPORATION
- ----------------------------------------------------------------------------------------------------------------------------------
1B. MAILING ADDRESS 1C. CITY, STATE 1D. ZIP CODE
1440 FOURTH STREET BERKELEY, CALIFORNIA 94710
- ----------------------------------------------------------------------------------------------------------------------------------
2. ADDITIONAL DEBTOR (IF ANY) (LAST NAME FIRST--IF AN INDIVIDUAL) 2A. SOCIAL SECURITY OR FEDERAL TAX NO.
- ----------------------------------------------------------------------------------------------------------------------------------
2B. MAILING ADDRESS 2C. CITY, STATE 2D. ZIP CODE
- ----------------------------------------------------------------------------------------------------------------------------------
3. DEBTOR'S TRADE NAMES OR STYLES (IF ANY) 3A. FEDERAL TAX NUMBER
- ----------------------------------------------------------------------------------------------------------------------------------
4. (LESSOR) MMC/GATX PARTNERSHIP NO. I 4A. SOCIAL SECURITY NO., FEDERAL TAX NO.
NAME c/o GATX CAPITAL CORPORATION, AS AGENT OR BANK TRANSIT AND A.B.A. NO.
MAILING ADDRESS FOUR EMBARCADERO CENTER, SUITE 2200
CITY SAN FRANCISCO STATE CALIFORNIA ZIP CODE 94111
- ----------------------------------------------------------------------------------------------------------------------------------
5. ASSIGNEE OF SECURED PARTY (IF ANY) 5A. SOCIAL SECURITY NO., FEDERAL TAX NO.
NAME OR BANK TRANSIT AND A.B.A. NO.
MAILING ADDRESS
CITY STATE ZIP CODE
- ----------------------------------------------------------------------------------------------------------------------------------
6. This FINANCING STATEMENT covers the following types or items of property (include description of real property on which
located and owner of record when required by Instruction 4).
This filing is made for notice purposes only. The parties acknowledge and agree that the Master Equipment Lease Agreement is a
true lease and that, in accordance with Section 9-408 of the Uniform Commercial Code, the execution and filing of this Financing
Statement shall not of itself be a factor or evidence to the contrary.
See also "Schedule 1 to the Financing Statement" attached hereto and incorporated herein by this reference.
This is a fixture filing.
- ----------------------------------------------------------------------------------------------------------------------------------
7. CHECK [X] 7A. [X] PRODUCTS OF COLLATERAL 7B. DEBTOR(S) SIGNATURE NOT REQUIRED IN ACCORDANCE WITH
IF APPLICABLE ARE ALSO COVERED INSTRUCTION 5(a) ITEM:
[ ] (1) [ ] (2) [ ] (3) [ ] (4)
- ----------------------------------------------------------------------------------------------------------------------------------
8. CHECK [X]
IF APPLICABLE [ ] DEBTOR IS A "TRANSMITTING UTILITY" IN ACCORDANCE WITH UCC SECTION 9105 (1) (n)
- ----------------------------------------------------------------------------------------------------------------------------------
9. CALYPTE BIOMEDICAL CORPORATION DATE: 9/27/93 C 10. THIS SPACE FOR USE OF FILING OFFICER
O (DATE, TIME, FILE NUMBER
By: [SIG] D AND FILING OFFICER)
SIGNATURE(S) OF DEBTOR(S) Title: CFO E
- ---------------------------------------------------------------------
CALYPTE BIOMEDICAL CORPORATION 1
TYPE OR PRINT NAME(S) OF DEBTOR(S)
- ------------------------------------------------------------- 2
3
SIGNATURE(S) OF SECURED PARTY(IES) 4
- -------------------------------------------------------------
MMC/GATX PARTNERSHIP NO. I 5 [STAMP]
By: GATX Capital Corporation, as Agent
TYPE OR PRINT NAME(S) OF SECURED PARTY(IES) 6
=============================================================
11. Return copy to: 7
NAME / RETURN TO: /
ADDRESS CALIFORNIA LENDERS' & ATTORNEYS' SERVICES 8
CITY 1000 G Street, Suite 225
STATE Sacramento, CA 95814 (916) 447-6237 9
ZIP CODE Toll Free in California Only: (800) 952-5696
/ Account Number 2860 06W / 0
=============================================================
Filing Officer is requested to note file number, date and
hour of filing on this copy and return to the above party.
FORM UCC-1--
Approved by the Secretary of State
==================================================================================================================================
(1) FILING OFFICER COPY--ACKNOWLEDGEMENT
106
FIXTURE FILING
This FINANCING STATEMENT is presented for filing and will remain effective
with certain exceptions for a period of five years from the date of filing
pursuant to Section 9403 of the California Uniform Commercial Code.
- ----------------------------------------------------------------------------------------------------------------------------------
1. DEBTOR (LAST NAME FIRST--IF AN INDIVIDUAL) (LESSEE) 1A. SOCIAL SECURITY OR FEDERAL TAX NO.
CALYPTE BIOMEDICAL CORPORATION
- ----------------------------------------------------------------------------------------------------------------------------------
1B. MAILING ADDRESS 1C. CITY, STATE 1D. ZIP CODE
1440 FOURTH STREET BERKELEY, CALIFORNIA 94710
- ----------------------------------------------------------------------------------------------------------------------------------
2. ADDITIONAL DEBTOR (IF ANY) (LAST NAME FIRST--IF AN INDIVIDUAL) 2A. SOCIAL SECURITY OR FEDERAL TAX NO.
- ----------------------------------------------------------------------------------------------------------------------------------
2B. MAILING ADDRESS 2C. CITY, STATE 2D. ZIP CODE
- ----------------------------------------------------------------------------------------------------------------------------------
3. DEBTOR'S TRADE NAMES OR STYLES (IF ANY) 3A. FEDERAL TAX NUMBER
- ----------------------------------------------------------------------------------------------------------------------------------
4. (LESSOR) MMC/GATX PARTNERSHIP NO. I 4A. SOCIAL SECURITY NO., FEDERAL TAX NO.
NAME c/o GATX CAPITAL CORPORATION, AS AGENT OR BANK TRANSIT AND A.B.A. NO.
MAILING ADDRESS FOUR EMBARCADERO CENTER, SUITE 2200
CITY SAN FRANCISCO STATE CALIFORNIA ZIP CODE 94111
- ----------------------------------------------------------------------------------------------------------------------------------
5. ASSIGNEE OF SECURED PARTY (IF ANY) 5A. SOCIAL SECURITY NO., FEDERAL TAX NO.
NAME OR BANK TRANSIT AND A.B.A. NO.
MAILING ADDRESS
CITY STATE ZIP CODE
- ----------------------------------------------------------------------------------------------------------------------------------
6. This FINANCING STATEMENT covers the following types or items of property (include description of real property on which
located and owner of record when required by Instruction 4).
This filing is made for notice purposes only. The parties acknowledge and agree that the Master Equipment Lease Agreement is a
true lease and that, in accordance with Section 9-408 of the Uniform Commercial Code, the execution and filing of this Financing
Statement shall not of itself be a factor or evidence to the contrary.
See also "Schedule 1 to the Financing Statement" attached hereto and incorporated herein by this reference.
This is a fixture filing.
- ----------------------------------------------------------------------------------------------------------------------------------
7. CHECK [X] 7A. [X] PRODUCTS OF COLLATERAL 7B. DEBTOR(S) SIGNATURE NOT REQUIRED IN ACCORDANCE WITH
IF APPLICABLE ARE ALSO COVERED INSTRUCTION 5(a) ITEM:
[ ] (1) [ ] (2) [ ] (3) [ ] (4)
- ----------------------------------------------------------------------------------------------------------------------------------
8. CHECK [X]
IF APPLICABLE [ ] DEBTOR IS A "TRANSMITTING UTILITY" IN ACCORDANCE WITH UCC SECTION 9105 (1) (n)
- ----------------------------------------------------------------------------------------------------------------------------------
9. CALYPTE BIOMEDICAL CORPORATION DATE: 9/27/93 C 10. THIS SPACE FOR USE OF FILING OFFICER
O (DATE, TIME, FILE NUMBER
By: [SIG] D AND FILING OFFICER)
SIGNATURE(S) OF DEBTOR(S) Title: CFO E
- ---------------------------------------------------------------------
CALYPTE BIOMEDICAL CORPORATION 1
TYPE OR PRINT NAME(S) OF DEBTOR(S)
- ------------------------------------------------------------- 2
3
SIGNATURE(S) OF SECURED PARTY(IES) 4
- -------------------------------------------------------------
MMC/GATX PARTNERSHIP NO. I 5 [STAMP]
By: GATX Capital Corporation, as Agent
TYPE OR PRINT NAME(S) OF SECURED PARTY(IES) 6
=============================================================
11. Return copy to: 7
NAME / RETURN TO: /
ADDRESS CALIFORNIA LENDERS' & ATTORNEYS' SERVICES 8
CITY 1000 G Street, Suite 225
STATE Sacramento, CA 95814 (916) 447-6237 9
ZIP CODE Toll Free in California Only: (800) 952-5696
/ Account Number 2860 06W / 0
=============================================================
FORM UCC-1--
Approved by the Secretary of State
==================================================================================================================================
(4) FILE COPY--DEBTOR
107
SCHEDULE 1 TO
FINANCING STATEMENT
(FIXTURE FILING)
DEBTOR (Lessee): CALYPTE BIOMEDICAL CORPORATION
SECURED PARTY (Lessor): MMC/GATX Partnership No. I
Item 6: The items which shall constitute Lessor's equipment and other personal
property under the Master Equipment Lease Agreement, dated as of August 20,
1993, as amended or supplemented from time to time (the "Lease"), between
MMC/GATX Partnership No. I ("MMC/GATX"), and Calypte Biomedical Corporation
("Lessee," such term and other terms not defined herein having the meaning
referred to in the Lease) and the Schedules to the Lease, are as follows:
All right, title and interest of the Lessee in and to each and every
Unit of equipment, tenant improvements, fixtures, software, parts, components
or personal property covered by the Lease (including all Schedules executed in
connection therewith) and as further described below (which such equipment,
tenant improvements, fixtures, software, parts, components and personal
property shall remain subject to the lien of the Lease until specifically
released in writing) whether or not any such equipment, tenant improvements,
fixtures, software, parts, components and personal property is thereafter
purported to be sold, destroyed, released, subleased, assigned, conveyed,
transferred or otherwise disposed of; together with all accessories,
equipment, parts and appurtenances appertaining or attached to any of such
equipment, tenant improvements, fixtures, software, parts, components or
personal property, whether now owned or hereafter acquired, and all
substitutions, renewals or replacements of and additions, improvements,
accessions and accumulations to any and all of such equipment, tenant
improvements, fixtures, software, parts, components or personal property;
together with all the income, profits and avails therefrom and the proceeds
thereof, including, without limitation, insurance payments and all proceeds
from sales or other dispositions thereof.
The Lease (including all schedules executed in connection therewith)
is intended by the parties thereto to be a true lease. However, if
notwithstanding the intent of the parties, the Lease is held to create a
secured financing or lease for security, the Lessee shall be deemed to have
granted to MMC/GATX a security interest in the above-described equipment and
other property.
The specific Units constituting equipment and personal property under
Schedule 1 include, without limitation, the equipment and property set forth on
the attached Annex A which is made a part hereof.
The above goods are, or may become, fixtures on the real property
described in Schedule 2 to this financing statement, commonly known as 1440
Fourth Street, Berkeley, California 94710.
1
108
This financing statement is to be recorded in the real estate records
of the County of Alameda.
The name of the record owner of the real property is G&G Properties.
The equipment and personal property set forth on the attached Annex A
was sold by Lessee to Lessor prior to being leased by Lessor to Lessee.
Other Security:
That certain Security Deposit and proceeds thereof under the Security
Deposit Pledge Agreement, dated as of August 20, 1993, between MMC/GATX and
Lessee.
2
109
22-Sep-93 CALYPTE BIOMEDICAL/SCHEDULE NO. 1 PAGE 1
ANNEX A
ALL UNITS LOCATED AT:
1440 FOURTH STREET
BERKELEY, CA 94710
ASSET COST OF
# VENDOR QTY ITEM DESCRIPTION INVOICE # UNIT
- ----- ------ --- ---------------- --------- -------
TENANT IMPROVEMENTS
- -------------------
R-027 4 PHASE ELECTRIC GENERATOR HOOKUP & 1963 3,515.90
CLEANROOM POWER & LIGHTING
- ----------------------------------------------------------------------------------------------------------------
R-027 DELUCCHI SHEET METAL STAINLESS STEEL FABRICATION 42937 162.00
FOR CLEANROOMS
- ----------------------------------------------------------------------------------------------------------------
R-027 DELUCCHI SHEET METAL STAINLESS STEEL FABRICATION 42936 147.50
FOR CLEANROOMS
- ----------------------------------------------------------------------------------------------------------------
R-027 DELUCCHI SHEET METAL STAINLESS STEEL FABRICATION 42950 92.00
FOR CLEANROOMS
- ----------------------------------------------------------------------------------------------------------------
R-027 LO HEATH LABOR AND MATERIALS FOR 1445 281.00
PLUMBING SERVICES AS FOLLOWS:
RELOCATE 2 FIRE SPRINKLER HEADS
CAP 2 PVC PIPES
- ----------------------------------------------------------------------------------------------------------------
R-027 LO HEATH LABOR AND MATERIALS FOR 1446 118.50
PLUMBING SERVICES AS FOLLOWS:
REBUILD 1 CHICAGO LAB FAUCET
REPAIR LEAK UNDER LAB SINK
- ----------------------------------------------------------------------------------------------------------------
R-027 MICROCANTAMINATION INSTALLATION OF 1 TRAX IND. 549 100.00
CONTROL SERVICES PRODUCTS VINYL CURTAIN WALL
PANEL; MOVE 1 FRAME SUPPORT 6"
- ----------------------------------------------------------------------------------------------------------------
R-027 PETER S. BERRY MATERIALS AND LABOR TO 15064 180.00
RELOCATE CENTRIFUGE OUTLET
TO CLEANROOM
- ----------------------------------------------------------------------------------------------------------------
R-027 SAN BRUNO SHEET METAL INSTALLATION OF: 4/21/93 12,870.00
1 7-1/2 TON HEAT PUMP
1 5 TON HEAT PUMP ON ROOF AREA
W/SPRING ICELATORS
ALL DUCT WORK W/RETURN &
SUPPLY DAMPERS
FARR GLIDE FILTER BOXES
SUPPLY OUTSIDE AIR W/SEPARATE FILTERS
REMOVE OLD SKYLIGHT & INSTALL
2 X 4 & PLYWOOD W/METAL COVER
- ----------------------------------------------------------------------------------------------------------------
R-027 SAN BRUNO SHEET METAL INSTALLED ALL DUCT WORK IN 4/30/93 8,865.00
CEILING AREA
- ----------------------------------------------------------------------------------------------------------------
R-027 TRAX INDUSTIAL 1 CUSTOM ANTI-STATIC SOFTWALL 4536 1,046.00
PRODUCTS PANEL FOR CLEANROOM
- ----------------------------------------------------------------------------------------------------------------
M-027 4 PHASE ELECTRIC EMERGENCY POWER SET-UP 4/21/93 5,250.00
- ----------------------------------------------------------------------------------------------------------------
M-026 J&M ENTERPRISES PHASE III--WAREHOUSE 1440.1 5,385.00
- ----------------------------------------------------------------------------------------------------------------
GRAND TOTAL $38,012.90
==========
CALIFORNIA LENDERS'
AND ATTORNEYS' SERVICES
1000 G STREET, SUITE 225
SACRAMENTO, CA 95814
110
AMENDMENT NO. 1 TO LEASE & SCHEDULE
SCHEDULE NO. 4
This Schedule No. 4 (this Schedule), dated June 30, 1995 (such date
being the "Delivery Date") for this Schedule), is a part of the Master
Equipment Lease Agreement, dated as of August 20, 1993 (the "Lease"), between
MMC/GATX PARTNERSHIP NO. I ("Lessor") and CALYPTE BIOMEDICAL CORPORATION
("Lessee") and is incorporated therein by this reference. The terms used in
this Schedule shall have the meanings given to them in the Lease unless
otherwise defined herein. The Commitment Termination Date is hereby amended to
December 31, 1995. The Initial Lease Term applicable to this Schedule and all
subsequent schedules is hereby amended to 36 months. The Initial Rent Factor
applicable to this Schedule and all subsequent schedules is hereby amended to
3.2402%.
1. Description and Cost of Units
The units subject to this Schedule are described in Annex A hereto.
The Lessor's Cost for this Schedule is:
$168,923.19
2. Acceptance; Obligations
Lessee confirms that on the Delivery Date hereof (i) all of the Units
described in Annex A attached hereto were duly accepted by Lessee and became
subject to the Lease; and (ii) Lessee became obligated to make Rental Payments
to Lessor and perform certain other obligations with respect to such Units as
provided in the Lease and Schedule.
3. Rent
(a) Commencing on July 1, 1995 (the "Rent Commencement Date") and
on the first day of each month thereafter, the rent for each Unit shall be paid
by Lessee in advance by check (or if requested by Lessor, by wire transfer), to
the location prescribed by Lessor in writing, in thirty-six (36) consecutive
installments, each of which shall be calculated based upon a Rent Factor of
3.2935% of the Lessor's cost for this Schedule which rental is:
$5,563.49 for each such installment.
(b) The Lease Term for the Units subject to this Schedule is 36
months and commences on the Rent Commencement Date. The Lease Term for the
Units subject to this Schedule shall expire on:
July 1, 1998
111
(c) The Interim Rental Payment for the period from the Delivery
Date of this Schedule through the Rent Commencement Date, which is due on the
Delivery Date is:
$185.45
4. Conditions. Lessor's obligations under the Lease and this
Schedule are subject to the prior satisfaction of the following conditions on
or before the Delivery Date of this Schedule:
(a) Lessor shall have received, in form and substance
satisfactory to Lessor:
(i) All acceptable waivers of landlords and/or
mortgagees, substantially in the form of Exhibit B to the Lease.
(ii) To the extent Lessor deems it necessary, a release or
other arrangement with any other lessor or lender to the Company to insure that
there will be no impairment of Lessor's interest in the Units subject to this
or other Schedules.
(iii) A sales tax exemption or other similar certificate
from Lessee with respect to any Units included in this Schedule, but not placed
in service by Lessee before the Delivery Date of this Schedule.
(iv) Copies of invoices, purchase orders and cancelled
checks relating to all Units being placed under the Lease pursuant to a
sale/leaseback on the Delivery Date of this Schedule and/or a Purchase Order
and Invoice Assignment form Lessee to Lessor substantially in the form of
Exhibit C to the Lease, instead of copies of cancelled checks, for all Units
purchased by Lessor directly from the vendor.
(v) For all sales of Units by Lessee to Lessor, a Bill of
Sale substantially in the form of Exhibit D to the Lease.
(vi) An executed copy of each manufacturer's service
contract entered into by Lessee pursuant to Section 9 of the Lease.
(vi) Two new Warrants acceptable to Lessor replacing the
Warrant granted August 20, 1993.
(b) Lessee shall have filed or recorded, to the
satisfaction of Lessor, all instruments and documents, including, but not
limited to, Financing Statements on Form UCC-1 and Releases and Termination
Statements on Form UCC-2, then deemed necessary by Lessor to preserve and
protect its rights hereunder, under the Uniform Commercial Code (including the
termination of any after-acquired property clause of third parties with respect
to any Unit) and,
112
if applicable, not less than ten days before the Delivery Date, a notice of the
proposed transfer to Lessor by Lessee of title to the Units to be placed under
the Lease on such Delivery Date shall have been published as and to the extent
required by Section 3440 of the Civil Code of the State of California.
(c) Lessor shall have received all other documents and
Lessee shall have performed all other acts as Lessor shall have reasonably
requested to consummate the transaction contemplated by this Schedule.
(d) Except with the prior consent of Lessor which shall
not be unreasonably withheld, (i) Lessor's Cost for the Units subject to this
Schedule shall be equal to or exceed the Minimum Funding Amount, (ii) Lessor's
cost for the Units subject to this Schedule when aggregated with Lessor Cost
for all Units under all previously funded Schedules shall not exceed the
Lessor's Commitment set forth on the cover page of the Lease, and (iii) the
funding contemplated by this Schedule when aggregated with all previous
fundings under the Lease shall not exceed the Maximum Number of Fundings.
(e) Except with the prior written consent of Lessor which
shall not be unreasonably withheld, the aggregate of Lessor's Cost for all
Units subject to this Schedule and all Schedules previously made subject to the
Lease which consist of tenant improvements, computer software, equipment
manufactured specially for Lessee and/or delivery and installation costs shall
not exceed 17.39% ($200,000 of Lessor's Costs if the entire Lessor's Commitment
is funded) of the total Lessor's Cost of Equipment funded, provided however,
that tenant improvements will not be eligible Equipment until Lessee receives
FDA approval of its lead product.
(f) The Delivery Date of this Schedule shall not be later
than the Commitment Termination Date.
(g) On the Delivery Date of this Schedule no Event of
Default or event, which with the passage of time or the giving of notice or
both would constitute an Event of Default, shall exist.
(h) Except with the prior written consent of Lessor which
shall not be unreasonably withheld, all of the Units listed on Annex A shall
consist of Eligible Equipment.
5. Representation and Warranties. Lessee hereby makes
the representations and warranties set forth in Section 14 of the Lease.
6. Payments. Pursuant to Section 16(h) of the Lease all
payments shall be made to Lessor c/o GATX Capital Corporation, as Agent, Box
71316, Chicago, Illinois 60694 unless otherwise indicated in a writing signed
by Lessor.
113
This Schedule is hereby duly executed by the parties hereto as of the
date first written above.
MMC/GATX PARTNERSHIP NO. I
By: GATX Capital Corporation, as Agent
By: [SIG]
-----------------------------------
Title: VP
--------------------------------
CALYPTE BIOMEDICAL CORPORATION
By: [SIG]
-----------------------------------
Title: President
--------------------------------
LESSEE'S ADDRESS
FOR NOTICES:
1440 Fourth Street
Berkeley, CA 94710
ATTN: Bill Boeger
Chairman & C.E.O.
Annex A - Description of Units
Annex B - Stipulated Loss Values
Annex C - Exceptions to Representations and Warranties
114
06/30/95 CALYPTE BIOMEDICAL SCHEDULE NO. 4 - ANNEX A PAGE 1
REF.# VENDOR QTY. DESCRIPTION P.O. # INVOICE # SERIAL # UNIT COST NBV TOTAL
- ------------------------------------------------------------------------------------------------------------------------------------
COMPUTER EQUIPMENT
==================
1 Miracle Computers, Inc. 1 Everex Stepnote 4DX4/100 4M/524 12741 122445 4031917A 3,481.00
w/ethernet and memory upgrade $3,481.00
- ------------------------------------------------------------------------------------------------------------------------------------
2 Miracle Computers, Inc. 1 PowerMac 6100/66 w/ add'l memory 12764 122508 XB5150P4TE 2,908.00
$2,908.00
- ------------------------------------------------------------------------------------------------------------------------------------
3 Miracle Computers, Inc. 1 PowerMac 6100/66 w/ add'l memory 121964 XB5124FE47Z 2,877.00
1 Sony CPD-15SF1 15" Monitor S01-7124395-H 449.00
$3,326.00
- ------------------------------------------------------------------------------------------------------------------------------------
4 Gateway 2000 1 Gateway 2000 PC 486x66 12460 509154 3208724 1,459.00
1 Sony 15" Vivitron Monitor 5209235 340.00
$1,799.00
- ------------------------------------------------------------------------------------------------------------------------------------
5 Hard Drive Super Source 1 DAT External Backup Unit 12440 TM10726 50125549/ 929.00
(Located in Ref. #10, line #1) TEC5B7 $929.00
- ------------------------------------------------------------------------------------------------------------------------------------
6 Computerware 1 Duo Dock for Mac Powerbook 12208 1079365 TF3391SJIAI 495.00
(Located in Ref. #11) $495.00
- ------------------------------------------------------------------------------------------------------------------------------------
7 The Mac Zone 2 Sony Multiscan 15" Monitors 547307500017 20005858 905.96
@ $452.98/ea 20005860
2 Sony Universal Mac to VGA Cable 30.00
@ $15./ea $935.96
- ------------------------------------------------------------------------------------------------------------------------------------
8 HIQ Computer Systems 1 HIQMARS 486DX66 mhz w/monitor 12258 27147 BVL449B0063035 1,254.00
(Manufacturer is HIQ) $1,254.00
- ------------------------------------------------------------------------------------------------------------------------------------
9 HIQ Computer Systems 1 8mb of ram 70 ns for 486PCI 27099 310.00
1 PCI SVGA Card 1mb 27101 100.00
1 VLB SVGA Card 1mb (returned) (68.00)
1 VLB SCSI Card 106.00
(Located in Ref. #10--Item #1) $448.00
- ------------------------------------------------------------------------------------------------------------------------------------
10 HIQ Computer Systems 1 Green PC-486DX66 mhz w/256k PCI 12155 26722 BRL424B0011266 1,728.00
& Monitor
1 Green PC-486DX66 mhz w/256k PCI BRL424B0023134 1,728.00
& Monitor
1 Green PC-486DX66 mhz w/256k PCI BRL424B0023148 1,728.00
& Monitor
1 Green PC-486DX66 mhz w/256k PCI BRL424B0023738 1,728.00
& Monitor
(Manufacturer is HIQ) $6,912.00
- ------------------------------------------------------------------------------------------------------------------------------------
11 Macattack Computers 1 Powerbook Duo 280c 12/320 w/modem 12083 44073 FC445HCN230 3,708.00
3,411.36 $3,411.36
- ------------------------------------------------------------------------------------------------------------------------------------
115
06/30/95 CALYPTE BIOMEDICAL SCHEDULE NO. 4 - ANNEX A PAGE 2
REF.# VENDOR QTY. DESCRIPTION P.O. # INVOICE # SERIAL # UNIT COST NBV TOTAL
- ------------------------------------------------------------------------------------------------------------------------------------
12 Proctor-Willenbacher 1 Micropolic 4110 int. Hard Disk 11829 PW-10018-84 A237227 803.85
(Located in system funded by
MMC/GATX on 10/4/93-s/n#F2314LAXCN2) 667.20 $667.20
- ------------------------------------------------------------------------------------------------------------------------------------
13 Compaq Computer Corp. 1 Compaq Prolinea & Densitometer PC 11426 53905 A416HHC70850 3,139.00
4/66 with monitor & add'l memory 141685-001 2,354.25 $2,354.25
- ------------------------------------------------------------------------------------------------------------------------------------
14 Compaq Computer Corp. 1 Compaq Contura Laptop model 120 11229 49101 7410HDJ33500 2,135.00
1,601.25 $1,601.25
- ------------------------------------------------------------------------------------------------------------------------------------
15 Gateway 2000 1 Gateway 2000 PC 486x66 w/monitor 11090 3481382 1827692 2,065.00
1,383.55 $1,383.55
====================================================================================================================================
SUBTOTAL COMPUTER EQUPMENT $31,905.57
====================================================================================================================================
OFFICE FURNITURE & EQUIPMENT
----------------------------
16 Kantors 1 Adjustable leg Table 12506 6430 164.83
1 Computer Stand 169.84
$334.67
- ------------------------------------------------------------------------------------------------------------------------------------
17 Kantors 5 Oak 84" Bookshelves @ $269.99/ea 12327A 83033 1,349.95
$1,349.95
- ------------------------------------------------------------------------------------------------------------------------------------
18 Kantors 2 Oak Bookcases @ $154.99/ea 12276 82725 309.98
$309.98
- ------------------------------------------------------------------------------------------------------------------------------------
19 Kantors 5 Admiral Steno Chairs @ $238./ea 11537 36296 1,190.00
5 Admiral Task Chairs @ $338./ea 1,690.00
2,160.00 $2,160.00
- ------------------------------------------------------------------------------------------------------------------------------------
20 Corporate Raider 1 Okidata Printer 12106 8533 312A0020796 820.00
754.40 $754.40
- ------------------------------------------------------------------------------------------------------------------------------------
21 Kantors 1 5 Drawer Lateral File 12288 6126 678.65
$678.65
- ------------------------------------------------------------------------------------------------------------------------------------
22 MAC 1 Deskwriter 560C Printer 301997 SG4C817142 529.00
$529.00
====================================================================================================================================
SUBTOTAL OFFICE FURNITURE & EQUIPMENT $6,116.65
====================================================================================================================================
116
06/30/95 CALYPTE BIOMEDICAL SCHEDULE NO. 4 - ANNEX A PAGE 3
REF.# VENDOR QTY. DESCRIPTION P.O. # INVOICE # SERIAL # UNIT COST NBV TOTAL
- ------------------------------------------------------------------------------------------------------------------------------------
LAB EQUIPMENT
-------------
23 Circuit City 1 Refrigerator 24001435599 940905682 459.97
$459.97
- ------------------------------------------------------------------------------------------------------------------------------------
24 Acme Scale 1 Floor Scale 12426 953829 1048460.1RW 8,008.32
$8,008.32
- ------------------------------------------------------------------------------------------------------------------------------------
25 American Vacuum Tedhnology 2 Stands for Portable Mixers 12522 10602 950.00
@ $475./ea $950.00
- ------------------------------------------------------------------------------------------------------------------------------------
26 Millipore 1 Milliflex Single Pump 12525 1260087 F4MM98269 1,301.00
$1,301.00
- ------------------------------------------------------------------------------------------------------------------------------------
27 Sartorius Corporation 1 Sartocheck III Filter Integrity 12486 111319-01 4502019 14,025.00
Tester $14,025.00
- ------------------------------------------------------------------------------------------------------------------------------------
29 Advanced Handling Systems 1 Cage for -80c Freezer 12269 3836 964.00
$964.00
- ------------------------------------------------------------------------------------------------------------------------------------
30 Sullair Pacific 1 Air Compressor 12304 908736 E03-C00595 10,751.00
$10,751.00
- ------------------------------------------------------------------------------------------------------------------------------------
31 VWR Scientific 2 PH meters w/electrodes 12469 27158330 123124 3,389.64
@ $1694.82/ea 167879 $3,389.64
- ------------------------------------------------------------------------------------------------------------------------------------
32 Pelco Sales 1 Double Refrigerator 12495 3-021 1323231 1,970.00
$1,970.00
- ------------------------------------------------------------------------------------------------------------------------------------
117
06/30/95 CALYPTE BIOMEDICAL SCHEDULE NO. 4 - ANNEX A PAGE 4
REF.# VENDOR QTY. DESCRIPTION P.O. # INVOICE # SERIAL # UNIT COST NBV TOTAL
- ------------------------------------------------------------------------------------------------------------------------------------
33 Scientific Equipment Exchange 1 Beckman Centrifuge 12485 2619 3657 9,995.00
$9,995.00
- ------------------------------------------------------------------------------------------------------------------------------------
34 Baxter Scientific 3 Free Standing Gowning Benches 11965 4627443 1,335.00
@ $445./ea $1,335.00
- ------------------------------------------------------------------------------------------------------------------------------------
35 Advanced Handling Systems 6 Transport Cars w/ casters 12104 3576 4,490.00
@ $748.33/ea $4,490.00
- ------------------------------------------------------------------------------------------------------------------------------------
36 Baxter Scientific 1 Urine Chem-Analyzer 12138 3582283 2,115.00
$2,115.00
- ------------------------------------------------------------------------------------------------------------------------------------
37 Biotest Diagnostics 1 Centrifugal Air Sampler 12069 106168 11648 1,775.00
1,663.00 $1,663.00
- ------------------------------------------------------------------------------------------------------------------------------------
38 Harris Manufacturing 1 Chart Recorder for -20C Freezer 12073 118232 659.00
606.28 $606.28
- ------------------------------------------------------------------------------------------------------------------------------------
39 Silicon Valley Shelving 1 Locker for Change Room 11980 50598 1,397.00
1,285.24 $1,285.24
- ------------------------------------------------------------------------------------------------------------------------------------
40 VWR Scientific 1 Small Incubator 12113 22881680 35823-204 1,360.00
1,251.20 $1,251.20
- ------------------------------------------------------------------------------------------------------------------------------------
41 VWR Scientific 4 Temp/Humidity Chart Recorder 12035 21870800 4322445-449 1,962.00
@ $490.50/ea 1,805.04 $1,805.04
- ------------------------------------------------------------------------------------------------------------------------------------
42 VWR Scientific 1 Bioprocess Kettles 12053 22634040 2674 5,882.00
0150 5,426.59 $5,426.59
- ------------------------------------------------------------------------------------------------------------------------------------
43 Altair/Linde Gases 2 Nitrogen Regulators @ $473.25/ea 11982 768356 946.50
870.78 $870.78
- ------------------------------------------------------------------------------------------------------------------------------------
44 Baxter Scientific 5 Two Shelf Plastic Carts 11965 1393722 700.00
@ $140./ea
1 Stem Caster Cart 249.75
873.77 $873.77
- ------------------------------------------------------------------------------------------------------------------------------------
45 Baxter Scientific 1 Biocentrifuge Rotor 12030 1439695 243.75
224.25 $224.25
- ------------------------------------------------------------------------------------------------------------------------------------
46 Baxter Scientific 1 Biocentrifuge 12030 1524548 75003637 1,175.00
1,081.00 $1,081.00
- ------------------------------------------------------------------------------------------------------------------------------------
47 Baxter Scientific 5 Two Shelf Plastic Carts 11965 2288046 700.00
@ $140./ea
2 Stem Caster Cart @ $330./ea 660.00
1,251.20 $1,251.20
- ------------------------------------------------------------------------------------------------------------------------------------
48 Baxter Scientific 10 Cleanroom Chairs @ $310./ea 11993 2288045 3,100.00
2,852.00 $2,852.00
- ------------------------------------------------------------------------------------------------------------------------------------
118
06/30/95 CALYPTE BIOMEDICAL - SCHEDULE NO. 4 - ANNEX A PAGE 5
REF.# VENDOR QTY. DESCRIPTION P.O.# INVOICE# SERIAL # UNIT COST NBV TOTAL
- -----------------------------------------------------------------------------------------------------------------------------------
49 Harris Manufacturing 1 -20C Freezer 11959 113556 Y03D-188874-YD 3,365.40
3,096.17 $3,096.17
- -----------------------------------------------------------------------------------------------------------------------------------
51 The Baker Company 1 Baker 4' Chemgard Fume Hood 11958 72871 57075 5,618.00
1 4' Base Cabinet 51928 1,130.00
6,208.16 $6,208.16
- -----------------------------------------------------------------------------------------------------------------------------------
52 Amicon, Inc. 1 Stirred Cell 11574 386703 785.00
772.20 $772.20
- -----------------------------------------------------------------------------------------------------------------------------------
53 Bio-Tek Instruments 1 Combo Pressure/Vacuum 11613 135103 97846 1,445.00
System
1,329.40 $1,329.40
- -----------------------------------------------------------------------------------------------------------------------------------
54 Nuaire, Inc. 1 Horizontal Flow Clean Cabinet 11820 52407 60215ABV 3,512.83
3,231.80 $3,231.80
- -----------------------------------------------------------------------------------------------------------------------------------
55 Bio-Rad Laboratories 1 Econo System Chromatography 11612 272714 Mon=700BR05945 7,240.00
**SEE COPY OF QUOTE #94-1990 701BR04787 6,009.20 $6,009.20
- -----------------------------------------------------------------------------------------------------------------------------------
56 Bio-Rad Laboratories 1 Demsitometer 11580 572510 T41405H 12,500.00
**SEE COPY OF QUOTE #94-0964 10,375.00 $10,375.00
- -----------------------------------------------------------------------------------------------------------------------------------
57 Met One, Inc. 1 Particle Counter 11647 27965 95188012 4,600.00
95188012A 3,818.00 $3,818.00
- -----------------------------------------------------------------------------------------------------------------------------------
58 Norlab Manufacturing 1 Controlair 4' Fume Hood & 11592 2127 3S147A 2,562.00
Accessories 2,126.46 $2,126.46
- -----------------------------------------------------------------------------------------------------------------------------------
59 Dynatech Laboratories 1 Pump 11161 47877 2,400.00
1,608.00 $1,608.00
- -----------------------------------------------------------------------------------------------------------------------------------
61 National Instrument 1 Fil-A-Matic Filling Machine 10717 153510 19854 14,579.00
Co. 59523-2 9,767.93 $9,767.93
- -----------------------------------------------------------------------------------------------------------------------------------
62 Advanced Handling 1 Black Plastic Pallet 12220 3644 175.00
Systems 1 3 Shelf Metro Cart 275.00
1 2 Shelf Metro Cart 145.00
$595.00
- -----------------------------------------------------------------------------------------------------------------------------------
63 Advanced Handling 1 18x36x69"h Metro Max Cart 12341 3831 250.00
Systems 3 18x36x69" Metro Max Carts
@$325./ea. 975.00 $1,225.00
- -----------------------------------------------------------------------------------------------------------------------------------
64 Advanced Handling 1 Lot Price for 25 Metro
Systems Shelves & 20 Posts 12104 3592 2,004.75
1,844.37 $1,844.37
===================================================================================================================================
SUB TOTAL LAB EQUIPMENT $130,900.97
===================================================================================================================================
119
06/30/95 CALYPTE BIOMEDICAL - SCHEDULE NO. 4 - ANNEX A PAGE 6
REF.# VENDOR QTY. DESCRIPTION P.O.# INVOICE# SERIAL # UNIT COST NBV TOTAL
- -----------------------------------------------------------------------------------------------------------------------------------
TOTAL - SCHEDULE NO. 4 $168,923.19
====================== ===========
120
ANNEX B
CALYPTE BIOMEDICAL
Schedule No. 4
Stipulated Loss Values (SLV) as
a Percentage of Lessor's Cost
Rental Rental
Payment Date *SLV Payment Date *SLV
-------------------- --------------------
on or 1 01-Jul-95 100.00% 23 01-May-97 61.59%
before 2 01-Aug-95 99.59% 24 01-Jun-97 59.24%
3 01-Sep-95 98.37% 25 01-Jul-97 56.86%
4 01-Oct-95 97.00% 26 01-Aug-97 54.44%
5 01-Nov-95 96.57% 27 01-Sep-97 51.97%
6 01-Dec-95 95.28% 28 01-Oct-97 49.47%
7 01-Jan-96 93.63% 29 01-Nov-97 46.94%
8 01-Feb-96 91.93% 30 01-Dec-97 44.34%
9 01-Mar-96 90.19% 31 01-Jan-98 41.72%
10 01-Apr-90 88.41% 32 01-Feb-98 39.06%
11 01-May-96 86.59% 33 01-Mar-98 36.34%
12 01-Jun-96 84.74% 34 01-Apr-98 33.57%
13 01-Jul-96 82.84% 35 01-May-98 30.75%
14 01-Aug-96 80.91% 36 01-Jun-98 27.90%
15 01-Sep-96 78.93% 37 01-Jul-98 25.00%
16 01-Oct-96 76.92% Thereafter 25.00%
17 01-Nov-96 74.86%
18 01-Dec-96 72.75%
19 01-Jan-97 70.61%
20 01-Feb-97 68.42%
21 01-Mar-97 66.19%
22 01-Apr-97 63.90%
* Each Stipulated Loan Value percentage assumes payment of all Scheduled
Payments due on or before the indicated Payment Date.
121
Calypte Biomedical, Inc. Commitment Deposit/Expenses
- ------------------------ ---------------------------
Instructions: This is a sample taken from the Neocrin transaction. Just fill in
the blanks as you see fit. This is also a good worksheet to send to the
customer when they ask how their Deposit was used.
CALYPTE BIOMEDICAL INC.
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Section E of the Proposal Letter: "A Commitment Fee of $15,000 is required by
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the Lessor to initiate its due diligence review process. This deposit is
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refundable if the transaction is not approved by the Lessor, which approval is
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in the sole discretion of the Lessor. Should the transaction be approved, any
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portion of the fee not utilized to pay expenses, will be applied on a pro rata
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basis to the first rental payable on each Schedule. If, subsequent to the
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Lessor's approval and mutually acceptable lease documents, the Lessee does not
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proceed with this transaction, fails to execute final documents with Lessor or
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does not utilize the lease line, the fee shall be retained by the Lessor."
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COMMITMENT DEPOSIT 25,000.00
Phoenix Leasing Commitment Deposit Portion: (7,500.00)
MMC/GATX Partnership No. 1 Commitment Deposit Retained: 17,500.00
EXPENSES Legal Attorney Fees 9,467.50
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Clerical overtime 0.00
Telephone 4.05
UCC Work 213.00
Copying Expense 380.70
Postage 0.00
Express Delivery 418.11
Outside Services 91.15
Facsimile 144.00
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10,718.51
Travel 0.00
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Total Expenses 10,718.51 (10,718.51)
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Legal Expense Cap: (10,000.00)
REMAINING DEPOSIT $7,500.00
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As a % of $7,500.00
Lessor's Apply Against
1,150,000.00 Commitment Commitment Remtal
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First Draw $38,012.90 3.31% (248.25)
Second Draw $148,871.25 12.95% (971.25)
Third Draw $38,297.00 3.33% (249.75)
Fourth Draw $168,923.19 14.69% (1,101.75)
Fifth Draw $0.00 0.00% 0.00
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$394,104.34 34.28% (2,571.00)
Remaining Deposit 4,929.00
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CREDITS TAKEN 1 258.18 All 3 credits were credited
Please Note: When the credits shown here were taken 2 1,010.10 to Invoice #17961.
all legal expenses were not allocated. Therefore the 3 259.74
overpaid amounts totalling $58.77 will be subtracted 4 1,042.98 Invoice #1168M
from the pro-rata credit from the commitment deposit --------
on Schedule 4. (i.e. $1,101.75 - $58.77 = $1,042.98) 2,571.00
The box above reflects the revised allocation of the
commitment deposit.