EXHIBIT 10.9
MASTER EQUIPMENT LEASE
Under this Master Equipment Lease (the "Lease"), dated as of September 29,
1995, Phoenix Leasing Incorporated ("Lessor") hereby leases to Adeza Biomedical
Corporation ("Lessee"), and Lessee hereby leases from Lessor, the equipment
(herein called "Equipment") which is described on the schedule attached hereto
or any subsequently-executed schedule entered into by Lessor and Lessee and
which incorporates this Lease by reference. Any such schedules shall
hereinafter individually be referred to as a "Schedule" and collectively be
referred to as the "Schedules." Lessor hereby leases the Equipment to Lessee
upon the following terms and conditions:
1. TERM OF AGREEMENT. The term of this Lease begins on the date set
forth above and shall continue thereafter and be in effect so long as and at any
time any Schedule entered into pursuant to this Lease is in effect. The Initial
Term and rent payable with respect to each leased item of Equipment shall be as
set forth in and as stated in the respective Schedule(s). The terms of each
Schedule hereto are subject to all conditions and provisions of this Lease as it
may at any time be amended. Each Schedule shall constitute a separate and
independent lease and contractual obligation of Lessee and shall incorporate the
terms and conditions of this Master Equipment Lease and any additional
provisions contained in such Schedule. In the event of a conflict between the
terms and conditions of this Lease and any additional provisions of such
Schedule, the additional provisions of such Schedule shall prevail with respect
to such Schedule only.
2. NON-CANCELLABLE LEASE. This Lease and any Schedule cannot be
cancelled or terminated except as expressly provided herein. This Lease
(including all Schedules to this Lease) constitutes a net lease and Lessee
agrees that its obligations to pay all rent and other sums payable hereunder
(and under any Schedule) and the rights of Lessor and assignee in and to such
rent and other sums, are absolute and unconditional and are not subject to any
abatement, reduction, setoff, defense, counterclaim or recoupment due or alleged
to be due to, or by reason of, any past, present or future claims which Lessee
may have against Lessor, any assignee, the manufacturer or seller of the
Equipment, or against any person for any reason whatsoever. Nothing in this
section is intended to affect Lessee's right to bring a claim against Lessor for
any breach of its obligations hereunder.
3. LESSOR COMMITMENT. So long as no Event of Default or event which with
the giving of notice or passage of time, or both, could become an Event of
Default has occurred and is continuing, Lessor agrees to lease to Lessee the
groups of Equipment described on each Schedule, subject to the following
conditions: (i) that in no event shall Lessor be obligated to lease Equipment to
Lessee hereunder where the aggregate purchase price of all Equipment leased to
Lessee hereunder would exceed Two Hundred Fifty Thousand Dollars ($250,000);
(ii) the amount of Equipment purchased by Lessor at any one time shall be at
least equal to Fifty Thousand Dollars ($50,000), except for the final advance,
which may be less than Fifty Thousand Dollars ($50,000); (iii) Lessor shall not
be obligated to purchase Equipment hereunder after June 30, 1996; provided,
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however, that Lessor shall not be obligated to purchase Equipment hereunder on
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or after May 1, 1996, unless and until Lessee has provided Lessor with financial
projections for the period commencing May 1, 1996, and terminating June 30,
1996, in form and
substance acceptable to Lessor, which projections, if accepted by Lessor, shall
become part of the Business Plan, as defined herein; (iv) all Master Lease
documentation required by Lessor with respect to the Lease has been executed by
Lessee or provided by Lessee no later than November 30, 1995; (v) the equipment
described on the Schedule is acceptable to Lessor; (vi) with respect to each
funding Lessee has provided to Lessor each of the closing documents described in
Exhibit A hereto (which documents shall be in form and substance acceptable to
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Lessor) and which list may be modified for each subsequent funding; (vii) there
is no material adverse change in Lessee's business condition and performance to
its business plan referred to as "Cash Flow" Forecast as of 8/1/95 [labeled
"Cash FF.EA 8/2/95"] (the "Business Plan"), as may be amended from time to time
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in form and substance acceptable to Lessor; (viii) Lessor or its agent has
inspected and placed identification labels on the Equipment; (ix) Lessee shall
offer to Lessor, on an exclusive basis, all lease transactions for Equipment
contemplated by Lessee during the commitment period of this Lease; however if
Lessor declines to finance any such transaction or Lessee and Lessor cannot
agree upon terms, then Lessee shall be free to seek such financing from any
other third party; (x) the value of Equipment sold by Lessee to Lessor in
connection with a funding which Lessee owned for more than 90 days prior to the
funding date shall be the original purchase price thereof, less an adequate
depreciation allowance, as determined by Lessor; and (xi) Lessor has received in
form and substance acceptable to Lessor: (a) evidence of Lessee's receipt of One
Million Two Hundred Fifty Thousand Dollars ($1,250,000) from Tokos Medical
Corp., scheduled for July 1, 1995; and (b) evidence of Lessee's One Million
Three Hundred Ninety-Two Thousand Dollars ($1,392,000) cash position as of June
30, 1995.
4. NO WARRANTIES BY LESSOR.
(a) Lessee has selected both (i) the Equipment and (ii) the suppliers
(herein called "Vendor") from whom Lessor is to purchase the Equipment. LESSOR
MAKES NO WARRANTY EXPRESS OR IMPLIED AS TO ANY MATTER WHATSOEVER, INCLUDING THE
CONDITION OF THE EQUIPMENT, ITS MERCHANTABILITY OR ITS FITNESS FOR ANY
PARTICULAR PURPOSE, AND AS TO LESSOR, LESSEE LEASES THE EQUIPMENT "AS IS" AND
WITH ALL FAULTS.
(b) If the Equipment is not properly installed, does not operate as
represented or warranted by Vendor or is unsatisfactory for any reason, Lessee
shall make any claim on account thereof solely against Vendor and shall,
nevertheless, pay Lessor all rent payable under this Lease, Lessee hereby
waiving any such claims as against Lessor. Lessor hereby agrees to assign to
Lessee solely for the purpose of making and prosecuting any said claim, to the
extent assignable, all of the rights which Lessor has against Vendor for breach
of warranty or other representation respecting the Equipment. Lessor shall have
no responsibility for delay or failure to fill the order.
(c) Lessee understands and agrees that neither the Vendor nor any
salesman or other agent of the Vendor is an agent of Lessor. No salesman or
agent of Vendor is authorized to waive or alter any term or condition of this
Lease, and no representations as to the Equipment or any other matter by the
Vendor shall in any way affect Lessee's duty to pay the rent and perform its
other obligations as set forth in this Lease.
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(d) Lessee may request Lessor to purchase Equipment from Vendor or
Lessee and to lease Equipment to Lessee on the terms and conditions of the Lease
set forth herein.
(e) Lessee hereby authorizes Lessor to insert in this Lease and each
Schedule hereto the serial numbers and other identification data of the
Equipment when determined by Lessor.
5. LESSEE'S REPRESENTATIONS AND WARRANTIES. Lessee represents and
warrants that (a) it is a corporation in good standing under the laws of the
state of its incorporation, and duly qualified to do business, and will remain
duly qualified during the term of this Lease, in each state where the Equipment
will be located, as specified in each Schedule hereto; (b) it has full authority
to execute and deliver this Lease and perform the terms hereof, and this Lease
has been duly authorized and constitutes valid and binding obligations of Lessee
enforceable in accordance with its terms; (c) this Lease will not contravene any
law, regulation or judgment affecting Lessee or result in any breach of any
agreement or other instrument binding on Lessee; (d) no consent of Lessee's
shareholders or holder of any indebtedness, or filing with, or approval of, any
governmental agency or commission, is a condition to the performance of the
terms hereof; (e) there is no action or proceeding pending or threatened against
Lessee before any court or administrative agency which might have a materially
adverse effect on the business, financial condition or operations of Lessee; (f)
no deed of trust, mortgage or third party interest arising through Lessee will
attach to the Equipment or the Lease; (g) the Equipment will remain at all times
under applicable law, removable personal property, free and clear of any lien or
encumbrance in favor of Lessee or any other person, notwithstanding the manner
in which the Equipment may be attached to any real property; (h) all credit,
financial and any other information submitted to Lessor herewith or any other
time is true and correct in all material respects as of the time delivered; and
(i) Lessee has provided, or will provide if requested, Lessee's tax
identification number.
6. EQUIPMENT ORDERING. Lessee shall be responsible for all packing,
rigging, transportation and installation charges for the Equipment and Lessor
may separately invoice Lessee for such charges. Lessee has selected the
Equipment itself and shall arrange for delivery of Equipment so that it can be
accepted in accordance with Section 7 hereof. Lessee hereby agrees to indemnify
and hold Lessor harmless from any claims, liabilities, costs and expenses,
including reasonable attorneys' fees, incurred by Lessor arising out of any
purchase orders or assignments executed by Lessor with respect to any Equipment
or services relating thereto.
7. LESSEE ACCEPTANCE. Lessee shall return to Lessor the signed and dated
Acceptance Notice attached to each Schedule hereto (a) acknowledging the
Equipment has been received, installed and is ready for use and (b) accepting it
as satisfactory in all respects for the purposes of this Lease. Lessor is
authorized to fill in the Rent Start Date on each Schedule in accordance with
the foregoing.
8. LOCATION; INSPECTION; LABELS. Equipment shall be delivered to and
shall not be removed from the Equipment "Location" shown on each Schedule
without Lessor's prior written consent. Lessor shall have the right to inspect
Equipment at any reasonable time. Lessee shall be responsible for all labor,
material and freight charges incurred in connection with any removal or
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relocation of such Equipment which is requested by the Lessee and consented to
by Lessor, as well as for any charges due to the installation or moving of the
Equipment. The rental payments shall continue during any period in which the
Equipment is in transit during a relocation. Lessor or its agent shall mark and
label Equipment, which labels shall state Equipment is owned by Lessor, and
Lessee shall keep such labels on the Equipment as labeled by Lessor or its
agent.
9. EQUIPMENT MAINTENANCE.
(a) General. Lessee will locate or base each item of Equipment where
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designated in an Acceptance Notice and will reasonably permit Lessor to inspect
such item of Equipment and its maintenance records. Lessee will at its sole
expense comply with all applicable laws, rules, regulations, requirements and
orders with respect to the use, maintenance, repair, condition, storage and
operation of each item of Equipment. Except as required herein, Lessee will not
make any addition or improvement to any item of Equipment that is not readily
removable without causing material damage to any item or impairing its original
value or utility. Any addition or improvement that is so required or cannot be
so removed will immediately become the property of Lessor.
(b) Service and Repair. With respect to computer equipment (which
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term does not include production and test equipment), other than personal
computers, Lessee has entered into, and will maintain in effect, Vendor's
standard maintenance contract or another contract satisfactory to Lessor for a
period equal to the term of each Schedule and extensions thereto which provides
for the maintenance of the Equipment and repairs and replacement parts thereof
in good condition and working order, all in accordance with the terms of such
maintenance contract. Lessee shall have the computer equipment (which term does
not include production and test equipment), other than personal computers,
certified for the Vendor's standard maintenance agreement prior to delivery to
Lessor upon expiration of this Lease. With respect to any other Equipment,
Lessee will, at its sole expense, maintain and service, and repair any damage
to, each item of Equipment in a manner consistent with prudent industry practice
and Lessee's own practice so that such item of Equipment is at all times (i) in
the same condition as when delivered to Lessee, except for ordinary wear and
tear, and (ii) in good operating order for the function intended by its
manufacturer's warranties and recommendations.
10. LOSS OR DAMAGE. Lessee assumes the entire risk of loss to the
Equipment through use, operation or otherwise. On the first rental payment date
following the loss, damage or destruction of the Equipment, any such occurrence
being hereinafter called a "Casualty Occurrence," or, if there is no such rental
payment date, thirty (30) days after such Casualty Occurrence, Lessee shall (i)
repair the Equipment, returning it to good operating condition or (ii) replace
the Equipment with identical equipment in good condition and repair, the title
to which shall vest in Lessor and which thereafter shall be subject to the terms
of this Lease; or (iii) pay to Lessor (a) any unpaid amounts relating to such
Equipment due Lessor under this Lease up to the date of the Casualty Occurrence,
and (b) a sum equal to the Casualty Value as set forth in the Casualty Value
table attached to each Schedule hereto for such Equipment. Upon the making of
such payment, the term of this Lease as to each unit of Equipment with respect
to which the Casualty Value was paid shall terminate.
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11. GENERAL INDEMNITY. Lessee will protect, indemnify and save harmless
Lessor from and against all liabilities, obligations, claims, damages,
penalties, causes of action, costs and expenses (other than Impositions,
liability for which is governed by Section 13 hereof, and legal and other
related fees and expenses incurred in connection with the preparation of this
Lease or any schedule), imposed upon or incurred by or asserted against Lessor
or any assignee of Lessor by Lessee or any third party by reason of the
occurrence or existence (or alleged occurrence or existence) of any act or event
relating to or caused by the Equipment, including but not limited to,
consequential or special damages of any kind, or any failure on the part of
Lessee to perform or comply with any of the terms of this Lease. In the event
that any action, suit or proceeding is brought against Lessor by reason of any
such occurrence, Lessee, upon request of Lessor, will at Lessee's expense resist
and defend such action, suit or proceeding or cause the same to be resisted and
defended by counsel designated and approved by Lessor. Lessee's obligations
under this Section 11 shall survive the expiration of this Lease with respect to
acts or events occurring or alleged to have occurred prior to the return of the
Equipment to Lessor at the end of the Lease term.
12. INSURANCE. Lessee at its expense shall keep the Equipment insured for
the entire term and any extensions of this Lease against all risks for the value
of the Equipment and in no event for less than the Casualty Value of such
Equipment and such insurance shall cover any Casualty Occurrence to any unit of
Equipment. Such insurance shall contain insurer's agreement to give thirty (30)
days written notice to Lessor before cancellation or material change of any
policy of insurance, and shall provide for (a) loss payable endorsement to
Lessor or any assignee of Lessor, and (b) public liability and property damage
insurance in an amount not less than Two Million Dollars ($2,000,000), naming
Lessor as additional insured. Lessee will provide Lessor and any assignee of
Lessor with a certificate of insurance from the insurer evidencing Lessor's or
such assignee's interest in the policy of insurance. Notwithstanding anything
in Section 10 or this Section 12 to the contrary, this Lease and Lessee's
obligations hereunder and under each Schedule shall remain in full force and
effect with respect to any unit of Equipment which is not subject to a Casualty
Occurrence. If Lessee fails to provide or maintain insurance as required
herein, Lessor shall have the right, but shall not be obligated to obtain such
insurance. In that event, Lessee shall pay to Lessor the cost thereof.
13. TAXES. Lessee agrees to reimburse Lessor for, (or pay directly if
instructed by Lessor), and agrees to indemnify and hold Lessor harmless from,
all fees (including, but not limited to, license, documentation, recording and
registration fees), and all sales, use, gross receipts, personal property,
occupational, value added or other similar taxes, levies, imposts, duties,
assessments, charges, or withholdings of any nature whatsoever, together with
any penalties, fines, additions, to tax, or interest thereon (all of the
foregoing being hereafter referred to as "Impositions") except same as may be
attributable to Lessor's income, arising at any rime prior to or during the term
of this Lease, or upon termination or early termination of this Lease and levied
or imposed upon Lessor directly or otherwise by any Federal, state or local
government in the United States or by any foreign country or foreign or
international taxing authority upon or with respect to (i) the Equipment, (ii)
the exportation, importation, registration, purchase, ownership, delivery,
leasing, possession, use, operation, storage, maintenance, repair, return, sale,
transfer of title, or other disposition thereof, (iii) the rentals, receipts, or
earnings arising from the Equipment, or any disposition of the rights to such
rentals, receipts, or earnings,
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(iv) any payment pursuant to this Lease, and (v) this Lease or the transaction
or any part thereof. Lessee shall have no obligation to indemnify Lessor or any
successor or assign of Lessor under this Section 13 for any Impositions that
solely arise as a result of Lessor or such assignee, as applicable, being an
entity organized outside the jurisdiction of the United States. Lessee's
obligations under this Section 13 shall survive the expiration of this Lease
with respect to acts or events occurring or alleged to have occurred prior to
the return of the Equipment to Lessor or the purchase of the Equipment by Lessee
at the end of the Lease term; provided, however, that Lessee shall in all cases
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shall be responsible under this Section 13 for all sales, use and similar taxes
arising upon the purchase of the Equipment by Lessee.
14. PAYMENT BY LESSOR. If Lessee shall fail to make any payment or
perform any act required hereunder, then Lessor may, but shall not be required
to, make such payment or perform such act with the same effect as if made or
performed by Lessee after Lessor's reasonable efforts to give not less than
seven (7) days' notice to Lessee; provided, however, that Lessor shall not be
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obligated to give notice in the case of a failure by Lessee to maintain any
insurance required under Section 12 hereof and less than seven (7) days' notice
may be given if Lessee's breach may result in any impairment of Lessor's rights
hereunder, imposition of any lien on any of the Equipment or impairment of
Lessee's further performance hereunder if such breach is not cured in less than
seven (7) days. Lessee will upon demand reimburse Lessor for all sums paid and
all costs and expenses incurred in connection with the performance of any such
act.
15. SURRENDER OF EQUIPMENT. Upon termination or expiration of this Lease,
with respect to each group of Equipment, Lessee will forthwith surrender the
Equipment to Lessor delivered in as good order and condition as originally
delivered, reasonable wear and tear excepted. Lessor may, at its sole option,
arrange for removal and transportation of the Equipment provided that Lessee's
obligations under Sections 10, 11 and 13 shall not be released. Lessee shall
bear all expenses of returning (which include, but are not limited to, the de-
installation, insurance, packaging and transportation of) the Equipment to
Lessor's location or other location within the continental United States as
Lessor may reasonably request. In the event Lessee fails to return the
Equipment as directed above, all obligations of Lessee under this Lease,
including rental payments, shall remain in full force and effect until Lessee
returns the Equipment to Lessor.
16. ASSIGNMENT. WITHOUT LESSOR'S PRIOR WRITTEN CONSENT, LESSEE SHALL NOT
(a) ASSIGN, TRANSFER, PLEDGE, HYPOTHECATE OR OTHERWISE DISPOSE OF THIS LEASE,
EQUIPMENT, OR ANY INTEREST THEREIN, OR (b) SUBLET OR LEND EQUIPMENT OR PERMIT IT
TO BE USED BY ANYONE OTHER THAN LESSEE OR LESSEE'S EMPLOYEES. LESSOR MAY ASSIGN
THIS LEASE OR GRANT A SECURITY INTEREST IN ANY OR ALL EQUIPMENT, OR BOTH, IN
WHOLE OR IN PART TO ONE OR MORE ASSIGNEES OR SECURED PARTIES WITHOUT NOTICE TO
LESSEE. If Lessee is given notice of such assignment it agrees upon request to
acknowledge receipt thereof in writing and Lessee shall execute such additional
documentation as Lessor's assignee shall reasonably require. Each such assignee
and/or secured party shall have all of the rights, but none of the obligations,
of Lessor under this Lease, unless such assignee or secured party expressly
agrees to assume such obligations in writing. Lessee shall not assert against
any assignee and/or secured party any defense, counterclaim or offset that
Lessee may
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have against Lessor. Notwithstanding any such assignment, and providing no Event
of Default has occurred and is continuing, Lessor, or its assignees, secured
parties, or their agents or assigns, shall not interfere with Lessee's right to
quietly enjoy use of Equipment subject to the terms and conditions of this
Lease. Subject to the foregoing, this Lease inures to the benefit of and is
binding upon the successors and assignees of the parties hereto. Lessee
acknowledges that any such assignment by Lessor will not materially change
Lessee's duties or obligations under the Lease or increase any burden of risk on
Lessee.
17. DEFAULT.
(a) Event of Default. Any of the following events or conditions
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shall constitute an "Event of Default" hereunder: (i) Lessee's failure to pay
any monies due to Lessor hereunder or under any Schedule beyond the fifth (5th)
day after the same is due (in the case of any payment other than a payment
scheduled hereunder it shall be due upon Lessee's receipt of notice from Lessor
of demand for such payment); (ii) Lessee's failure to comply with its
obligations under the first sentence of Section 12 or the first sentence of
Section 16; (iii) Lessee's failure to comply with or perform any term, covenant,
condition, warranty or representation of this Lease or any Schedule hereto or
under any other agreement between Lessee and Lessor or under any lease of real
property covering the location of Equipment if such failure to comply or perform
is not cured by Lessee within fifteen (15) days of receipt of notice thereof;
(iv) seizure of the Equipment under legal process; (v) the filing by or against
Lessee of a petition for reorganization or liquidation under the Bankruptcy Code
or any amendment thereto or under any other insolvency law providing for the
relief of debtors; (vi) the voluntary or involuntary making of an assignment of
a substantial portion of its assets by Lessee, or any guarantor ("Guarantor")
under any guaranty executed in connection with this Lease, for the benefit of
its creditors, the appointment of a receiver or trustee for Lessee or any
Guarantor for any of Lessee's or Guarantor's assets, the institution by or
against Lessee or any Guarantor of any formal or informal proceeding for
dissolution, liquidation, settlement of claims against or winding up of the
affairs of Lessee or any Guarantor, provided that in the case of all such
involuntary proceedings, same are not dismissed within sixty (60) days of
commencement; or (vii) the making by Lessee or any Guarantor of a transfer of
all or a material portion of Lessee's or Guarantor's assets or inventory not in
the ordinary course of business.
(b) Remedies. If any Event of Default shall have occurred:
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(i) Lessor may proceed by appropriate court action or actions
either at law or in equity to enforce performance by Lessee, of the applicable
covenants of this Lease, or to recover damages therefor; or
(ii) Lessee will, without demand, on the next rent payment date
following the Event of Default, pay to Lessor as liquidated damages which the
parties agree are fair and reasonable under the ,circumstances existing at the
time this Lease is entered into, and not as a penalty, an amount equal to the
Casualty Value of the Equipment set forth in the Casualty Value table(s)
attached to the Schedule(s) together with any rent or other amounts past due and
owing by Lessee hereunder (if Lessee receives payment under this clause (ii) and
also comes into
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possession of the Equipment, whether pursuant to the return thereof by Lessee or
otherwise, then Lessor shall take action under clause (iii) of this subsection
(b)); and
(iii) Lessor may, without notice to or demand Upon Lessee;
(A) Take possession of the Equipment and lease the same
or any portion thereof, for such period, amount, and to such entity as Lessor
shall elect. The proceeds of such lease will be applied by Lessor (1) first, to
pay all costs and expenses, including reasonable legal fees and disbursements,
incurred by Lessor as a result of the default and the exercise of its remedies
with respect thereto, (2) second, to pay Lessor an amount equal to any unpaid
rent or other amounts past due and payable plus the Casualty Value, to the
extent not previously paid by Lessee, and (3) third, to reimburse Lessee for the
Casualty Value to the extent previously paid. Any surplus remaining thereafter
will be retained by Lessor.
(B) Take possession of the Equipment and sell the same or
any portion thereof at public or private sale and without demand or notice of
intention to sell. The proceeds of such sale will be applied by Lessor (1)
first, to pay all costs and expenses, including reasonable legal fees and
disbursements, incurred by Lessor as a result of the default and the exercise of
its remedies with respect thereto, (2) second, to pay Lessor an amount equal to
any unpaid rent or other amounts past due and payable plus the Casualty Value,
to the extent not previously paid by Lessee, and (3) third, to reimburse Lessee
for the Casualty Value to the extent previously paid by Lessee. Any surplus
remaining thereafter will be retained by Lessor.
(C) Take possession of the Equipment and hold and keep
idle the same or any portion thereof.
Lessee agrees to pay all internal and out-of-pocket costs of Lessor related
to the exercise of its remedies, including direct costs of its in-house counsel
and out-of-pocket legal fees and expenses. At Lessor's request, Lessee shall
assemble the Equipment and make it available to Lessor at such location as
Lessor may designate. Lessee waives any right it may have to redeem the
Equipment.
Repossession of any or all Equipment shall not terminate this Lease or any
Schedule unless Lessor notifies Lessee in writing. Any amount required to be
paid under this Section shall be increased by a service charge of 1.5% per
month, or the highest rate of interest permitted by applicable law, whichever is
less, accruing from the date the Casualty Value or other amounts are payable
hereunder until such amounts are paid.
None of the above remedies is intended to be exclusive, but each is
cumulative and in addition to any other remedy available to Lessor, and all may
be enforced separately or concurrently.
18. LATE PAYMENTS. Lessee shall pay to Lender an amount equal to the
greater of 10% of all amounts owed Lessor by Lessee which are not paid when due
or $100, but in no event an amount greater than the highest rate permitted by
applicable law. If such funds have not been received by Lessor at Lessor's
place of business or by Lessor's designated agent by the date such
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funds are due under this Lease, Lessor shall bill Lessee for such charges.
Lessee acknowledges that invoices for rentals due hereunder are sent by Lessor
for Lessee's convenience only. Lessee's non-receipt of an invoice will not
relieve Lessee of its obligation to make rent payments hereunder.
19. LESSOR'S EXPENSE. Lessee shall pay Lessor all costs and expenses
including reasonable attorney's fees and the fees of the collection agencies,
incurred by Lessor in enforcing any of the terms, conditions or provisions
hereof.
20. OWNERSHIP; PERSONAL PROPERTY. The Equipment shall be and remain
personal property of Lessor, and Lessee shall have no right, title or interest
therein or thereto except as expressly set forth in this Lease, notwithstanding
the manner in which it may be attached or affixed to real property, and upon
termination or expiration of the Lease term, Lessee shall have the duty and
Lessor shall have the right to remove the Equipment from the premises where the
same be located whether or not affixed or attached to the real property or any
building, at the cost and expense of Lessee.
21. ALTERATIONS; ATTACHMENTS. No alterations or attachments shall be made
to the Equipment without Lessor's prior written consent, which shall not be
given for changes that will, in Lessor's determination, adversely affect the
reliability and utility of the Equipment or which cannot be removed without
damage to the Equipment, or which in any way, in Lessor's determination,
adversely affect the value of the Equipment for purposes of resale or re-lease.
22. FINANCING STATEMENT. Lessee will execute financing statements
pursuant to the Uniform Commercial Code. Lessee authorizes Lessor to file
financing statements signed only by Lessor (where such authorization is
permitted by law) at all places where Lessor deems necessary.
23. MISCELLANEOUS.
(a) Lessee shall provide Lessor with such corporate resolutions,
financial statements and other documents as Lessor shall request from time to
time.
(b) Lessee represents that the Equipment is being leased hereunder
for business purposes.
(c) Time is of the essence with respect to this Lease.
(d) Lessee shall keep its books and records in accordance with
generally accepted accounting principles and practices consistently applied and
shall deliver to Lessor its annual audited financial statements, unaudited
monthly financial statements (e.g., balance sheet and income statement and, if
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available, funds flow and changes to projections) to include any financial
information given to Lessee's Board of Directors, and signed by an officer of
Lessee and such other unaudited financial statements as may be reasonably
requested by Lessor.
(e) Any action by Lessee against Lessor for any default by Lessor
under this Lease, including breach of warranty or indemnity, shall be commenced
within one (1) year after any such cause of action accrues.
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24. NOTICES. All notices hereunder shall be in writing, by registered
mail, and shall be directed, as the case may be, to Lessor at 2401 Kerner
Boulevard, San Rafael, California 94901, Attention: Lease Administration and to
Lessee at 1240 Elko Drive, Sunnyvale, California 94089, Attention: Chief
Financial Officer..
25. ENTIRE AGREEMENT. Lessee acknowledges that Lessee has read this
Lease, understands it and agrees to be bound by its terms, and further agrees
that it and each Schedule constitute the entire agreement between Lessor and
Lessee with respect to the subject matter hereof and supersedes all previous
agreements, promises, or representations. The terms and conditions hereof shall
prevail notwithstanding any variance with the terms of any purchase order
submitted by the Lessee with respect to any Equipment covered hereby.
26. AMENDMENT. This Lease may not be changed, altered or modified except
by an instrument in writing signed by an officer of the Lessor and the Lessee.
27. WAIVER. Any failure of Lessor to require strict performance by Lessee
or any waiver by Lessor of any provision herein shall not be construed as a
consent or waiver of any other breach of the same or any other provision.
28. SEVERABILITY. If any provision of this Lease is held invalid, such
invalidity shall not affect any other provisions hereof.
29. JURISDICTION AND WAIVER OF JURY TRIAL. This Lease shall be governed
by and construed under the laws of the State of California. It is agreed that
exclusive jurisdiction and venue for any legal action between the parties
arising out of this Lease shall be in the Superior Court for Marin County,
California, or, in cases where Federal diversity jurisdiction is available, in
the United States District Court for the Northern District of California.
LESSEE, TO THE EXTENT IT MAY LAWFULLY DO SO, HEREBY WAIVES TS RIGHT TO TRIAL BY
JURY IN ANY ACTION BROUGHT ON OR WITH RESPECT TO THIS LEASE, ANY SCHEDULE, OR
ANY AGREEMENT EXECUTED IN CONNECTION HEREWITH.
30. NATURE OF TRANSACTION. Lessor makes no representation whatsoever,
express or implied, concerning the legal character of the transaction evidenced
hereby, for tax or any other purpose.
31. SECURITY INTEREST.
(a) One executed copy of the Lease will be marked "Original" and all
other counterparts will be duplicates. 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 the
lease may be created in any documents other than the "Original."
(b) There shall be only one original of each Schedule and it shall be
marked "Original," and all other counterparts will be duplicates. To the
extent, if any, that any Schedule(s) to this Lease constitutes chattel paper (or
as such term is defined in the Uniform Commercial Code as in effect in any
applicable jurisdiction) no security interest in any Schedule(s) may be created
in any documents other than the "Original."
-10-
32. SUSPENSION OF OBLIGATIONS. The obligations of Lessor hereunder will
be suspended to the extent that it is hindered or prevented from complying
therewith because of labor disturbances, including but not limited to strikes
and lockouts, acts of God, fires, storms, accidents, failure of the manufacturer
to deliver any item of Equipment, governmental regulations or interference, or
any cause whatsoever not within the sole and exclusive control of Lessor.
33. COMMITMENT FEE. Lessee has paid to Lessor a commitment fee ("Fee") of
Ten Thousand Dollars ($10,000). The Fee shall be applied by Lessor first to
reimburse Lessor for all out-of-pocket UCC search costs and appraisal fees
incurred by Lessor, and then proportionally to the first month's rent for each
Schedule hereunder in the proportion that the purchase price of the Equipment
leased pursuant to the Schedule bears to Lessor's entire commitment. However,
the portion of the Fee which is not applied to rental shall be non-refundable
except if Lessor defaults in its obligations pursuant to Section 3.
34. FINANCE LEASE. The parties agree that this lease is a "Finance Lease"
as defined by Section 10103(a)(7) of the California Commercial Code
(Cal.Com.C.). Lessee acknowledges either (a) that Lessee has reviewed and
approved any written Supply Contract (as defined by Cal.Com.C. Section
10103(a)(25)) covering Equipment purchased from the "Supplier" (as defined by
Cal.Com.C. Section 10103(a)(24)) thereof for lease to Lessee or (b) that Lessor
has informed or advised Lessee, in writing, either previously or by this Lease
of the following: (i) the identity of the Supplier; (ii) that the Lessee may
have rights under the Supply Contract; and (iii) that the Lessee may contact the
Supplier for a description of any such rights Lessee may have under the Supply
Contract. Lessee hereby waives any rights and remedies Lessee may have under
Cal.Com.C. Sections 10508 through 10522.
IN WITNESS WHEREOF, the parties hereto have executed this Lease.
PHOENIX LEASING INCORPORATED ADEZA BIOMEDICAL CORPORATION
By: /s/ Phoenix Leasing Incorporated By: /s/ Adeza Biomedical Corporation
-------------------------------- --------------------------------
Title: Title:
----------------------------- -----------------------------
Exhibit A - Closing Memorandum
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SCHEDULE
--------
Schedule No. 1 to Lease
Dated as of September 29, 1995
Between ADEZA BIOMEDICAL CORPORATION
and PHOENIX LEASING INCORPORATED
A. Description and Purchase Price of Equipment
-------------------------------------------
Description of
Equipment
(quantity, model Purchase Mfr./
and serial number) Price Rent Vendor Location
- -----------------------------------------------------------------------------
See Exhibit A attached hereto.
Total: $59,909.31 $1,947.05
B. Terms
-----
Initial Term: The Initial Term shall commence on the date the Equipment is
received, installed and accepted for use, as shown on the
Acceptance Notice, and continue for thirty-six (36) full months
after the "Rent Start Date." Provided that no material adverse
changes have occurred in Lessee's business condition and
performance according to the Business Plan, as reasonably
determined by Lessor, and no Event of Default has occurred and is
continuing, after Lessor's receipt of the first twelve (12)
monthly rental payments, Lessor, at Lessee's request, will make a
mid-term extension by amending this Schedule as follows: (i)
extend the Initial Term by twelve (12) months for a total Initial
Term of forty-eight (48) full months, and (ii) modify the
applicable Lease Rate Factor as specified below.
Rent Start
Date: December 1, 1995.
Rent Initial Rental Amount Per Month: $1,947.05, plus applicable
taxes, which amount shall be adjusted in accordance with the Rate
Factors and Terms shown herein below:
-12-
Lease Rate Factor (as a percentage of Equipment's original Purchase Price) for
any Schedule:
Table "A"
Rate Factor and Term without Rate Factor and Term with Grant
Grant of Mid Term Extension of Mid Term Extension
- --------------------------- ---------------------
Months 1 - 36 @ 3.25% Months 1 - 12 @ 3.25%
Month 13 - 60 @ 2.65%
Lessee shall pay the rental amounts in the amounts provided above plus
applicable taxes.
Monthly Rental Payments in advance.
Initial
Rent Due: Payable on the Rent Start Date shall be
(1) the Rental Amount due including any
sales or use tax and (2) an amount equal
to 1/30th of the monthly rental amount
using a rate of 3.25% multiplied by
days, if any, between (and the number of
including) the date the Initial Term
commences and (but not including) the
Rent Start Date.
C. Invoice Information: Lessee's and Lessor's addresses for invoice purposes
-------------------
for the Equipment on the Schedule shall be as follows:
Lessee's Invoice Address: Remit Monthly Rental Amount To:
Adeza Biomedical Corporation Phoenix Leasing Incorporated
1240 Elko Drive P.O. Box 200432
Sunnyvale, California 94089 Dallas, Texas 75320-0432
Attention: Chief Financial Officer
D. Casualty Values: See attachment hereto.
---------------
E. Special Provisions: 1. Lessor's payment for Equipment hereunder is
------------------
conditioned on Lessor's satisfaction that there has been no material adverse
change in Lessee's business condition and performance to the Business Plan
subsequent to initial credit approval. 2. Sale Leaseback Addendum. 3. Renewal or
Purchase Rider.
LESSOR AND LESSEE AGREE THAT THIS SCHEDULE SHALL CONSTITUTE A LEASE OF THE
EQUIPMENT DESCRIBED ABOVE, SUBJECT TO THE TERMS AND CONDITIONS OF THIS SCHEDULE
AND OF THE MASTER EQUIPMENT LEASE, DATED AS OF SEPTEMBER 29, 1995, BETWEEN
LESSEE AND LESSOR. THE TERMS AND CONDITIONS OF SUCH MASTER EQUIPMENT LEASE ARE
HEREBY
-13-
INCORPORATED BY REFERENCE AND MADE A PART HEREOF TO THE SAME EXTENT AS IF SUCH
TERMS AND CONDITIONS WERE SET FORTH IN FULL HEREIN.
PHOENIX LEASING INCORPORATED ADEZA BIOMEDICAL CORPORATION
By: /s/ PHOENIX LEASING INCORPORATED By: /s/ ADEZA BIOMEDICAL CORPORATION
-------------------------------- --------------------------------
Title: Title:
------------------------------ ------------------------------
Date: December 1, 1995 Date: December 1, 1995
-14-
Attachment to Equipment Schedule No. 1
CASUALTY VALUES
% of Original % of Original
Month of Equipment Month of Equipment
Lease Term Purchase Price Lease Term Purchase Price
- ----------- -------------- ---------- --------------
1 125.00 25 73.94
2 122.87 26 71.81
3 120.74 27 69.68
4 118.62 28 67.55
5 116.49 29 65.43
6 114.36 30 63.30
7 112.23 31 61.17
8 110.11 32 59.04
9 107.98 33 56.91
10 105.85 34 54.79
11 103.72 35 52.66
12 101.60 36 50.53
13 99.47 37 48.40
14 97.34 38 46.28
15 95.21 39 44.15
16 93.09 40 42.02
17 90.96 41 39.89
18 88.83 42 37.77
19 86.70 43 35.64
20 84.57 44 33.51
21 82.45 45 31.38
22 80.32 46 29.26
23 78.19 47 27.13
24 76.06 48 25.00
Thereafter 25.00
-15-
Sale Leaseback Addendum to Schedule No. 1
-----------------------------------------
This Addendum to Master Equipment Lease is made and entered into as of
December 1, 1995, between Phoenix Leasing Incorporated ("Lessor") and Adeza
Biomedical Corporation ("Lessee").
Notwithstanding anything to the contrary contained in the Lease referenced
above, Lessor and Lessee agree as follows:
1. Lessee shall sell the Equipment to and lease the Equipment from Lessor
and Lessor shall purchase the Equipment from and lease the Equipment to Lessee
upon the terms and conditions of the Bill of Sale attached hereto as Attachment
1.
2. Lessee represents and warrants that:
(a) Lessee has the right to sell the Equipment as set forth herein,
(b) the Equipment and Lessee's right, title and interest in such
Equipment is, as of the date of the Bill of Sale, free from all claims, liens,
security interests and encumbrances,
(c) Lessee will defend the sale against lawful claims and demands of
all persons, and
(d) the purchase price of the Equipment is equal to the fair market
value of such Equipment, plus soft costs not in excess of ten percent (10%) of
the purchase price of the Equipment, at the time of sale.
PHOENIX LEASING INCORPORATED ADEZA BIOMEDICAL CORPORATION
By: /s/ PHOENIX LEASING INCORPORATED By: /s/ ADEZA BIOMEDICAL CORPORATION
-------------------------------- --------------------------------
Title: Title:
------------------------------ ------------------------------
-16-
ATTACHMENT 1
------------
BILL OF SALE
For valuable consideration Adeza Biomedical Corporation ("Seller") sells to
Phoenix Leasing Incorporated ("Buyer"), the property listed on Exhibit A hereof
(the "Equipment").
Seller covenants and warrants that:
(1) It is the owner of, and has absolute title to, the Equipment which is
free and clear of all claims, liens and encumbrances.
(2) It has not made any prior sale, assignment, or transfer of the
Equipment.
(3) It has the present right, power, and authority to sell the Equipment
to Buyer.
(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 Equipment to Buyer, its
successors and assigns, against any person claiming an interest in the Equipment
other than through Buyer.
This Bill of Sale is binding on the successors and assigns of Seller and
inures to the benefit of the successors and assigns of Buyer.
Executed on December 1, 1995, at Sunnyvale, California.
ADEZA BIOMEDICAL CORPORATION
By: /s/ ADEZA BIOMEDICAL CORPORATION
-----------------------------------
Title:
---------------------------------
-17-
Rider No. 1 to Schedule No. 1
RETURN, PURCHASE OR RENEWAL OPTION
Notwithstanding anything to the contrary in the Lease, Lessor hereby gives
Lessee the following options upon at least 90 days' written notice prior to the
expiration of the Initial Term:
Option No. 1
------------
To return all, but not less than all, of the Equipment to Lessor.
Option No. 2
------------
To purchase AS-IS-WHERE-IS all, but not less than all, of the Equipment
covered under this Schedule at the expiration of the Initial Term for said
Equipment's "Fair Market Value." Fair Market Value shall be determined by
mutual agreement of Lessor and Lessee; provided, however, that Fair Market Value
-------- -------
shall not exceed twenty percent (20%) of the original Purchase Price of the
Equipment. The Equipment will be delivered pursuant to a bill of sale that
provides that the Equipment is not subject to any lien or other security
interest or encumbrance granted by, or arising to secure an obligation of,
Lessor.
Option No. 3
------------
To extend the Initial Term of this Schedule for an additional term
("Renewal Term") mutually agreed to by Lessor and Lessee, for an amount equal to
the Equipment's Fair Rental Value. Fair Rental Value shall be determined by
mutual agreement of Lessor and Lessee.
Lessee's right to exercise either Option 2 or Option 3 is conditioned upon
(a) no Event of Default having occurred and be continuing and (b) Lessee's
payment to Lessor of the applicable amount, including any sales taxes and other
amounts due.
If Lessee and Lessor cannot agree on Fair Market Value or Fair Rental
Value, such value shall be determined by appraisal, with expenses to be shared
by Lessor and Lessee. Appraisal shall be a procedure whereby two recognized
independent appraisers, one chosen by Lessor and one by Lessee, shall mutually
agree on the amount in question. If the appraisers are unable to agree and the
higher appraisal is no more than 110% of the lower appraisal, the value shall be
equal to the average of the two appraisals. If the higher appraisal is more
than 110% of the lower appraisal, the two appraisers shall jointly name an
independent third appraiser who shall appraise the property and the value shall
equal the average of the two closest appraisals.
In the event Lessee does not exercise any option, or, if Lessee and Lessor
cannot agree on the value of the Equipment or the terms of the Lease extension,
and Lessee retains possession of the Equipment after the end of the Initial
Term, all obligations of Lessee under the Lease, including current rental
payments, shall remain in full force and effect during such holdover period on a
month-to-month basis, until the earlier of (i) Lessee's purchase of the
Equipment at an agreed upon , price or commencement of the Renewal Term as then
agreed by Lessee and Lessor,
-18-
(ii) return of the Equipment to Lessor, or (iii) Lessor's taking possession of
the Equipment and termination of the Lease and Schedule after notice to Lessee.
Notwithstanding anything to the contrary in the Lease, Lessor hereby gives
Lessee the option, upon at least 90 days' written notice prior to the expiration
of the Renewal Term, to purchase AS-IS-WHERE-IS all, but not less than all, of
the Equipment covered under this Schedule at the expiration of the Renewal Term
for said Equipment's "Fair Market Value." Fair Market Value shall be determined
by mutual agreement of Lessor and Lessee; provided, however, that Fair Market
-------- -------
Value shall not exceed twenty percent (20%) of the original Purchase Price of
the Equipment. The Equipment will be delivered pursuant to a bill of sale that
provides that the Equipment is not subject to any lien or other security
interest or encumbrance granted by, or arising to secure an obligation of
Lessor. If Lessee and Lessor cannot agree on Fair Market Value, such value
shall be determined by appraisal in the manner described above.
Lessee shall be responsible for all applicable sales, use and similar taxes
in connection with any purchase of Equipment by Lessee.
-19-
ACCEPTANCE NOTICE
SCHEDULE NO. 1
Reference is made to the Master Equipment Lease, dated as of September 29,
1995, between Phoenix Leasing Incorporated as Lessor and Adeza Biomedical
Corporation as Lessee (the "Lease").
Lessee confirms that the following Equipment has been received, installed
and is ready for use by Lessee. The Equipment is satisfactory in all respects
for the purposes of this Lease as of the date Lessee executes this Notice below.
Description of
Equipment
(quantity, model Purchase Mfr./
and serial number) Price Rent Vendor Location
- -------------------------------------------------------------
Total: $59,909.31 $1,947.05
THE LEASE MAY NOT BE CHANGED, ALTERED OR MODIFIED EXCEPT BY AN INSTRUMENT IN
WRITING SIGNED BY AN OFFICER OF LESSOR AND A DULY AUTHORIZED REPRESENTATIVE OF
LESSEE.
IN WITNESS WHEREOF, Lessee has executed this Acceptance Notice as of
December 1, 1995.
ADEZA BIOMEDICAL CORPORATION
By: /s/ ADEZA BIOMEDICAL CORPORATION
------------------------------------
Title:
----------------------------------
-20-
AS OF 10/1/95
NET
EQUIPMENT SERIAL INVOICE INVOICE SALES CHECK CHECK
VENDOR DESCRIPTION NUMBER NUMBER AMOUNT TAX NO DATE
------ ----------- ------ ------ ------ --- -- ----
AMAX ENGINEERING 486-DX2-66 COMPUTER (SN 404034054) 0016261-IN $1,555.00 $18.99 17458 8/30/94
[*] [*] (SN 972) 6196 [*] [*] 17460 8/30/94
[*] [*] (Table SN 2733) 5035 [*] [*] 17473 8/30/94
(Controller SN 2734)
[*] SN 2736
& 2735)
(Controller SN 1642)
JULIE KEMP RAM FOR FILE SERVER Exp Report $2,279.40 0 17957 12/01/94
NETWERX CONNOR 1GB 352 $1,350.00 0 18157 12/21/94
HARD DRIVE (2)
[*] [*] 100738-00 [*] [*] 18340 01/18/95
[*] [*] 100738-01 [*] [*] 18628 03/02/95
[*] [*] 9298134 [*] [*] 19480 06/15/95
[*] [*] 550270 [*] [*] 19514 06/21/95
LANOVATION LAN ESCORT V3.0 SOFTWARE 13515 $1,595.00 0 19752 07/26/95
---------- ----------
$80,088.40 $20,179.09
DUE
DEPRECIATED DUE VENDOR PHOENIX
VENDOR COST LESSEE (NET TAX) PO. NO. TAG NO.
------ ---- ------ --------- ------ ------
AMAX ENGINEERING $513.15 $1,041.85 0 32156
[*] [*] [*] 0 32153
[*] [*] [*] 0 32099
JULIE KEMP $569.85 $1,709.55 0 17957
NETWERX $347.50 $1,012.50 0 32512
[*] [*] [*] 0 32518
[*] [*] [*] 0 32518
[*] [*] [*] 0 32671
[*] [*] [*] 0 32919
LANOVATION $127.60 $1,467.40 0 33012
----------
[*]
* [CONFIDENTIAL TREATMENT REQUESTED]
-21-