Exhibit 10.4
BIOTECH EQUIPMENT SCHEDULE
SCHEDULE NO. 001
DATED THIS DECEMBER 31, 1998
TO MASTER LEASE AGREEMENT
DATED AS OF DECEMBER 31, 1998
LESSOR & MAILING ADDRESS: LESSEE & MAILING ADDRESS:
- ----------------------------------------------------------------------
GENERAL ELECTRIC CAPITAL CORPORATION MYRIAD GENETICS, INC.
4 NORTH PARK DRIVE SUITE 500 320 WAKARA WAY
HUNT VALLEY, MD 21030 SALT LAKE CITY, UT 84108
This Schedule is executed pursuant to, and incorporates by reference the terms
and conditions of, and capitalized terms not defined herein shall have the
meanings assigned to them in, the Master Lease Agreement identified above
("AGREEMENT" said Agreement and this Schedule being collectively referred to as
"LEASE"). This Schedule, incorporating by reference the Agreement, constitutes
a separate instrument of lease.
A. EQUIPMENT: Subject to the terms and conditions of the Lease, Lessor agrees
to Lease to Lessee the Equipment described below (the
"EQUIPMENT").
-----------
Number Capitalized
of Units Lessors Cost Manufacturer Serial Number Model and Type of Equipment
-------- ------------ ------------ ------------- ---------------------------
See Annex A Attached hereto and forming a part hereof
B. FINANCIAL TERMS
1. Advance Rent (if any): $77,685.11 5. Basic Term Commencement Date: JANUARY 1, 1999
2. Capitalized Lessor's Cost: $ $ 3,551,784.19 6. Lessee Federal Tax ID No.:
3. Basic Term (No. of Months): 48 Months. 7. Last Delivery Date: DECEMBER 28, 1998
4. Basic Term Lease Rate Factor: 2.1872 8. Daily Lease Rate Factor: .0729
9. First Termination Date: FORTY (40) months after the Basic Term Commencement
Date.
10. Interim Rent: For the period from and including the Lease Commencement
Date to but not including the Basic Term Commencement Date ("Interim
Period"), Lessee shall pay as rent ("Interim Rent") for each unit of
Equipment, the product of the Daily Lease Rate Factor times the Capitalized
Lessor's Cost of such unit times the number of days in the Interim Period.
Interim Rent shall be due on DECEMBER 31, 1998.
11. Basic Term Rent. Commencing on __ JANUARY 1, 1999 and on the same day of
each month thereafter (each, a "Rent Payment Date") during the Basic Term,
Lessee shall pay as rent ("Basic Term Rent") the product of the Basic Term
Lease Rate Factor times the Capitalized Lessor's Cost of all Equipment on
this Schedule.
C. TAX BENEFITS Depreciation Deductions:
1. Depreciation method is the 200% declining balance method, switching to
straight line method for the 1st taxable year for which using the
straight line method with respect to the adjusted basis as of the
beginning of such year will yield a larger allowance
2. Recovery Period: FIVE (5) YEARS.
3. Basis: 100% of Capitalized Lessors Cost.
D. PROPERTY TAX
APPLICABLE TO EQUIPMENT LOCATED IN 320 WAKARA WAY SALT LAKE CITY, UT
84108: Lessee agrees that it will not list any of such Equipment for
property tax purposes or report any property tax assessed against such
Equipment until otherwise directed in writing by Lessor. Upon receipt of any
property tax bill pertaining to such Equipment from the appropriate taxing
authority, Lessor will pay such tax and will invoice Lessee for the expense.
Upon receipt of such invoice, Lessee will promptly reimburse Lessor for such
expense.
Lessor may notify Lessee (and Lessee agrees to follow such notification)
regarding any changes in property tax reporting and payment responsibilities.
E. ARTICLE 2A NOTICE
IN ACCORDANCE WITH THE REQUIREMENTS OF ARTICLE 2A OF THE UNIFORM COMMERCIAL
CODE AS ADOPTED IN THE APPLICABLE STATE, LESSOR HEREBY MAKES THE FOLLOWING
DISCLOSURES TO LESSEE PRIOR TO EXECUTION OF THE LEASE, (A) THE PERSON(S)
SUPPLYING THE EQUIPMENT IS SEE ANNEX A ATTACHED HERETO AND FORMING A PART
HEREOF (THE "SUPPLIER(S)"), (B) LESSEE IS ENTITLED TO THE PROMISES AND
WARRANTIES, INCLUDING THOSE OF ANY THIRD PARTY, PROVIDED TO THE LESSOR BY
SUPPLIER(S), WHICH IS SUPPLYING THE EQUIPMENT OR DELIVERY OF THE SAME IN
CONNECTION WITH OR AS PART OF THE CONTRACT BY WHICH LESSOR ACQUIRED THE
EQUIPMENT AND (C) WITH RESPECT TO SUCH EQUIPMENT, LESSEE MAY COMMUNICATE WITH
SUPPLIER(S) AND RECEIVE AN ACCURATE AND COMPLETE STATEMENT OF SUCH PROMISES
AND WARRANTIES, INCLUDING ANY DISCLAIMERS AND LIMITATIONS OF THEM OR OF
REMEDIES. TO THE EXTENT PERMITTED BY APPLICABLE LAW, LESSEE HEREBY WAIVES ANY
AND ALL RIGHTS AND REMEDIES CONFERRED UPON A LESSEE IN ARTICLE 2A AND ANY
RIGHTS NOW OR HEREAFTER CONFERRED BY STATUTE OR OTHERWISE WHICH MAY LIMIT OR
MODIFY ANY OF LESSOR'S RIGHTS OR REMEDIES UNDER THE DEFAULT AND REMEDIES
SECTION OF THE AGREEMENT.
F. STIPULATED LOSS AND TERMINATION VALUE TABLE*
See Annex B attached hereto and forming a part hereof
*The Stipulated Loss Value or Termination Value for any unit of Equipment
shall be the Capitalized Lessor's Cost of such unit multiplied by the
appropriate percentage derived from the above table. In the event that the
Lease is for any reason extended, then the last percentage figure shown above
shall control throughout any such extended term.
G. MODIFICATIONS AND ADDITIONS FOR THIS SCHEDULE ONLY
For purposes of this Schedule only, the Agreement is amended as follows:
1. The LEASING Section subsection (b) of the Lease is hereby deleted in its
entirety and the following substituted in its stead:
b) The obligation of Lessor to purchase the Equipment from Lessee and
to lease the same to Lessee shall be subject to receipt by Lessor, on or
prior to the earlier of the Lease Commencement Date or Last Delivery Date
therefor, of each of the following documents in form and substance
satisfactory to Lessor: (i) a Schedule for the Equipment (ii) evidence of
insurance which complies with the requirements of the INSURANCE Section of
the Lease, and (iii) such other documents as Lessor may reasonably request.
Once the Schedule is signed, the Lessee may not cancel the Lease.
2. The DELIVERY, USE AND OPERATION Section subsection (a) of the Lease
shall be deleted and the following substituted in its stead:
The parties acknowledge that this is a sale/leaseback transaction and
the Equipment is in Lessee's possession as of the Lease Commencement Date.
3. BILL OF SALE
Lessee, in consideration of the Lessor's payment of the amount set forth
in B 2. above, which includes any applicable sales taxes (which payment
Lessee acknowledges), hereby grants, sells, assigns, transfers and delivers
to Lessor the Equipment along with whatever claims and rights Lessee may have
against the manufacturer and/or Supplier of the Equipment, including but not
limited to all warranties and representations. At Lessors request Lessee
will cause Supplier to deliver to Lessor a written statement wherein the
Supplier (i) agrees not to retain any security interest, lien or other
encumbrance in or upon
the Equipment at any time, and to execute such documents as Lessor may request
to evidence the release of any such encumbrance, and (ii) represents and
warrants to Lessor (x) that Supplier has previously conveyed full title to the
Equipment to Lessee, (y) that the Equipment was delivered to Lessee and
installation completed, and (z) that the final purchase price of the Equipment
(or a specified portion of such purchase price) has been paid by Lessee.
Lessor is purchasing the Equipment for leasing back to Lessee pursuant to
the Lease. Lessee represents and warrants to Lessor that (i) Lessor will acquire
by the terms of this Bill of Sale good title to the Equipment free from all
liens and encumbrances whatsoever; (ii) Lessee has the right to sell the
Equipment; and (iii) the Equipment has been delivered to Lessee in good order
and condition, and conforms to the specifications, requirements and standards
applicable thereto; and (iv) the equipment has been accurately labeled,
consistent with the requirements of 40 CFR part 82 Subpart E, with respect to
products manufactured with a controlled (ozone-depleting) substance.
Lessee agrees to save and hold harmless Lessor from and against any and
all federal, state, municipal and local license fees and taxes of any kind or
nature, including, without limiting the generality of the foregoing, any and all
excise, personal property, use and sales taxes, and from and against any and all
liabilities, obligations, losses, damages, penalties, claims, actions and suits
resulting therefrom and imposed upon, incurred by or asserted against Lessor as
a consequence of the sale of the Equipment to Lessor.
4. ACCEPTANCE
Pursuant to the provisions of the Lease, as it relates to this Schedule,
Lessee hereby certifies and warrants that (i) all Equipment listed above has
been delivered and installed (if applicable); (ii) Lessee has inspected the
Equipment, and all such testing as it deems necessary has been performed by
Lessee, Supplier or the manufacturer; and (iii) Lessee accepts the Equipment for
all purposes of the Lease, the purchase documents and all attendant documents.
Lessee does further certify that as of the date hereof (i) Lessee is not
in default under the Lease; (ii) the representations and warranties made by
Lessee pursuant to or under the Lease are true and correct on the date hereof
and (iii) Lessee has reviewed and approves of the purchase documents for the
Equipment, if any.
5. EQUIPMENT SPECIFIC PROVISIONS
The MAINTENANCE Section of the Lease is amended by adding the following as
the fifth sentence in subsection (a):
Lessee agrees that upon return of the Equipment, it will comply with all
original manufacturer's performance specifications for new Equipment without
expense to Lessor. Lessee shall, if requested by Lessor, obtain a certificate or
service report from the manufacturer attesting to such condition.
Each reference contained in this Agreement to:
(a) "Adverse Environmental Condition"shall refer to (i) the existence or
the continuation of the existence, of an Environmental Emission (including,
without limitation, a sudden or non-sudden accidental or non-accidental
Environmental Emission), of, or exposure to, any substance, chemical, material,
pollutant, Contaminant, odor or audible noise or other release or emission in,
into or onto the environment (including, without limitation, the air, ground,
water or any surface) at, in, by, from or related to any Equipment, (ii) the
environmental aspect of the transportation, storage, treatment or disposal of
materials in connection with the operation of any Equipment or (iii) the
violation, or alleged violation of any statutes, ordinances, orders, rules
regulations, permits or licenses of, by or from any governmental authority,
agency or court relating to environmental matters connected with any Equipment.
(b) "Affiliate"shall refer, with respect to any given Person, to any
Person that directly or indirectly through one or more intermediaries, controls,
or is controlled by, or is under common control with, such Person.
(c) "Contaminant"shall refer to those substances which are regulated by or
form the basis of liability under any Environmental Law, including, without
limitation, asbestos, polychlorinated biphenyls ("PCB's"), and radioactive
substances, or other material or substance which has in the past or could in the
future constitute a health, safety or environmental hazard to any Person,
property or natural resources.
(d) "Environmental Claim"shall refer to any accusation, allegation, notice
of violation, claim, demand, abatement or other order on direction (conditional
or otherwise) by any governmental authority or any Person for personal injury
(including sickness, disease or death), tangible or intangible property damage,
damage to the environment or other adverse effects on the environment, or for
fines, penalties or restrictions, resulting from or based upon any Adverse
Environmental Condition.
(e) "Environmental Emission"shall refer to any actual or threatened
release, spill, emission, leaking, pumping, injection, deposit, disposal,
discharge, dispersal, leaching or migration into the indoor or outdoor
environment, or into or out of any of the Equipment, including, without
limitation, the movement of any Contaminant or other substance through or in the
air, soil, surface water, groundwater or property.
(f) "Environmental Law"shall mean any federal, foreign, state or local
law, rule or regulation pertaining to the protection of the environment,
including, but not limited to, the Comprehensive Environmental Response,
Compensation, and Liability Act ("CERCLA") (42 U.S.C. Section 9601 et seq .),
the Hazardous Material Transportation Act (49 U.S.C. Section 1801 et seq .), the
Federal Water Pollution Control Act (33 U.S.C. Section 1251 et seq .), the
Resource Conservation and Recovery Act (42 U.S.C. Section 6901 et seq .), the
Clean Air Act (42 U.S.C. Section 7401 et seq .), the Toxic Substances Control
Act (15 U.S.C. Section 2601 et seq .), the Federal Insecticide, Fungicide, and
Rodenticide Act (7 U.S.C. Section 1361 et seq .), and the Occupational Safety
and Health Act (19 U.S.C. Section 651 et seq .), as these laws have been amended
or supplemented, and any analogous foreign, federal, state or local statutes,
and the regulations promulgated pursuant thereto.
(g) "Environmental Loss"shall mean any loss, cost, damage, liability,
deficiency, fine, penalty or expense (including, without limitation, reasonable
attorneys' fees, engineering and other professional or expert fees),
investigation, removal, cleanup and remedial costs (voluntarily or involuntarily
incurred) and damages to, loss of the use of or decrease in value of the
Equipment arising out of or related to any Adverse Environmental Condition.
(h) "Person"shall include any individual, partnership, corporation, trust,
unincorporated organization, government or department or agency thereof and any
other entity.
Lessee shall fully and promptly pay, perform, discharge, defend, indemnify
and hold harmless Lessor and its Affiliates, successors and assigns, directors,
officers, employees and agents from and against any Environmental Claim or
Environmental Loss.
The provisions of this Schedule shall survive any expiration or
termination of the Lease and shall be enforceable by Lessor, its successors and
assigns.
The MAINTENANCE Section subsection (a) of the Lease shall be amended by
adding the following at the end thereof:
RETURN PROVISIONS: In addition to the provisions provided for in the RETURN OF
EQUIPMENT Section of the Lease, and provided that Lessee has elected not to
exercise its option to purchase the Equipment Lessee shall, at its expense:
(a) at least one hundred twenty (120) days and not more thanone hundred
eighty (180) days prior to expiration or earlier termination of the Lease,
provide to Lessor a detailed inventory of all components of the Equipment. The
inventory should include, but not be limited to, a listing of model and serial
numbers for all components comprising the Equipment;
(b) at least one hundred twenty (120)days prior to expiration or earlier
termination of the Lease, with reference to computer based equipment comprising
the Equipment, provide to Lessor a detailed listing of all internal circuit
boards by both the model and serial number for all hardware comprising the
Equipment and a listing of all software features listed individually;
(c) at least one hundred twenty (120)days prior to expiration or earlier
termination of the Lease, upon receiving reasonable notice from Lessor, provide
or cause the vendor(s) or manufacturer(s) to provide to Lessor the following
documents: (i) one set of service manuals, and operating manuals including
replacements and/or additions thereto, such that all documentation is completely
up-to-date; (ii) one set of documents, detailing equipment configuration,
operating requirements, maintenance records, and other technical data concerning
the set-up and operation of the Equipment, including replacements and/or
additions thereto, such that all documentation is completely up-to-date;
(d) at least one hundred twenty (120)) days prior to expiration or earlier
termination of the Lease, upon receiving reasonable notice from Lessor, make the
Equipment available for on-site operational inspections by potential purchasers,
under power, and provide personnel, power and other requirements necessary to
demonstrate electrical and mechanical systems for each item of the Equipment;
(e) at least one hundred twenty (120)days prior to expiration or earlier
termination of the Lease, cause manufacturer's representative or qualified
equipment maintenance provider, acceptable to Lessor, (the"Authorized
Inspector") to perform a comprehensive physical inspection, including testing
all material and workmanship of the Equipment and ensure all Equipment and
equipment operations conform to all applicable local, state, and federal laws,
health and safety guidelines including the then current FDA regulations; and if
during such inspection, examination and test, the Authorized Inspector finds any
of the material or workmanship to be defective or the Equipment not operating
within manufacturer's specifications and the then current FDA regulations, then
Lessee shall repair or replace such defective material and, after corrective
measures are completed, Lessee will provide for a follow-up inspection of the
Equipment by the Authorized Inspector as outlined in the preceding clause;
(f) have each item of Equipment returned with an in-depth field service
report detailing said inspection as outlined in Section (e) above. The report
shall certify that the Equipment has been properly inspected, examined and
tested and is operating within the manufacturer's specifications;
(g) provide that all Equipment will be cleaned and cosmetically
acceptable, and in such condition so that it may be immediately installed and
placed into use in a similar environment;
(h) properly remove or treat all rust or corrosion;
(i) ensure all items of Equipment will be completely sterilized, steam-
cleaned, and de-greased upon redelivery;
(j) properly remove all Lessee installed markings which are not necessary
for the operation, maintenance or repair of the Equipment;
(k) ensure the Equipment shall be mechanically and structurally sound,
capable of performing the functions for which the Equipment was originally
designed, in accordance with the manufacturer's published and recommended
specifications;
(l) provide for the deinstallation, packing, transporting, and certifying
of the Equipment to include, but not limited to, the following: (i) the
manufacturer's representative shall de-install all Equipment (including all
wire, cable and mounting hardware) in accordance with the specifications of the
manufacturer; (ii) each item of Equipment will be returned with a certificate
supplied by the manufacturer's representative qualifying the Equipment to be in
good condition and (where applicable) to be eligible for the manufacturer's
maintenance plan; the certificate of eligibility shall be transferable to
another operator of the Equipment; (iii) the Equipment shall be packed properly
and in accordance with the manufacturer's recommendations, free from all
contaminants; (iv) Lessee shall provide for transportation of the Equipment in a
manner consistent with the manufacturer's recommendations and practices to any
locations within the continental United States as Lessor shall direct; and shall
have the Equipment unloaded at such locations; (v) Lessee shall obtain and pay
for a policy of transit insurance for the redelivery period in an amount equal
to the replacement value of the Equipment and Lessor shall be named as the loss
payee on all such policies of insurance; and (vi) Lessee shall provide insurance
and safe, secure storage for the Equipment for ninety (90) days after expiration
or earlier termination of the Lease at accessible locations satisfactory to
Lessor.
H. PAYMENT AUTHORIZATION
You are hereby irrevocably authorized and directed to deliver and apply the
proceeds due under this Schedule as follows:
COMPANY NAME ADDRESS AMOUNT
- --------------------------------------------------------------------------------
Myriad Genetics Inc. 320 Wakara Way Salt Lake City, UT 84108 $3,551,784.19
This authorization and direction is given pursuant to the same authority
authorizing the above-mentioned financing.
Except as expressly modified hereby, all terms and provisions of the
Agreement shall remain in full force and effect. This Schedule is not binding or
effective with respect to the Agreement or Equipment until executed on behalf of
Lessor and Lessee by authorized representatives of Lessor and Lessee,
respectively.
IN WITNESS WHEREOF, Lessee and Lessor have caused this Schedule to be
executed by their duly authorized representatives as of the date first above
written.
LESSOR: LESSEE:
GENERAL ELECTRIC CAPITAL CORPORATION MYRIAD GENETICS, INC.
By: /s/ Annette Scallion By: /s/ Jay M. Moyes
---------------------------------- ----------------------------
Name: Annette Scallion Name: Jay M. Moyes
-------------------------------- --------------------------
Title: Senior Transaction Coordinator Title: V.P. Finance/C.F.O.
------------------------------- -------------------------
ATTEST
By: /s/ Jeff Johnson
----------------------------
Name: Jeff Johnson
--------------------------