Exhibit 10.9
MASTER LEASE AGREEMENT
dated us of June 23, 2004 ("Agreement")
THIS AGREEMENT is between General Electric Capital Corporation (together
with its successors and assigns, if any. "LESSOR") and ChromaVision Oncology
Services, Inc. ("LESSEE"). Lessor has an office at 83 Worcester Heights Road,
Danbury, CT 06810-7548. Lessee is a corporation organized and existing under the
laws of the state of Delaware. Lessee's mailing address and chief place of
business is 33171 Paseo Cerveza, San Juan Capistrano, CA 92675. This Agreement
contains the general terms that apply to the leasing of Equipment from Lessor to
Lessee. Additional terms that apply to the Equipment (term, rent, options,
etc.) shall be contained on a schedule ("SCHEDULE"). Lessee and ChromaVision
Medical Systems, Inc., as guarantor ("Guarantor"), agree that to induce Lessor
to lease equipment to Lessee, this Agreement creates unrestricted cross-security
with the security interest created between General Electric Capital Corporation
as Secured Party and ChromaVision Medical Systems, Inc. as Debtor as represented
in the Master Security Agreement dated as of July 15, 2003, and the Amendment to
the Master Security Agreement dated as of July 31, 2003. Lessee and Guarantor
further agree that Section 2, Subsection (m) of the Amendment to the Master
Security Agreement of July 15, 2003, representing a negative pledge or
Guarantor's Intellectual Property as defined in Section 7 of the Master Security
Agreement, and Section 7, Subsection (h), representing disposition of proceeds
under a sale of Guarantor's Intellectual Property, shall be extended to the full
term of this Agreement unless specifically released or modified by Lessor in
writing.
1. LEASING:
(a) Lessor agrees to lease to Lessee, and Lessee agrees to lease from
Lessor, the equipment and the property ("EQUIPMENT") described in any Schedule
signed by both parties.
(b) Lessor shall purchase Equipment from the manufacturer or supplier
("SUPPLIER") and lease it to Lessee if on or before the Last Delivery Date
Lessor receives (i) a Schedule for the Equipment, (ii) evidence of insurance
which complies with the requirements of Section 9, and (iii) such other
documents as Lessor may reasonably request. Each of the documents required above
must be in form and substance satisfactory to Lessor. Lessor hereby appoints
Lessee its agent for inspection and acceptance of the Equipment from the
Supplier, Once the Schedule is signed, the Lessee may not cancel the Schedule.
2. TERM, RENT AND PAYMENT:
(a) The rent payable for the Equipment and Lessee's right to use the
Equipment shall begin on the earlier of (i) the date when the Lessee signs the
Schedule and accepts the Equipment or (ii) when Lessee has accepted the
Equipment under a Certificate of Acceptance ("LEASE COMMENCEMENT DATE"). The
term of this Agreement shall be the period specified in the applicable Schedule.
The word "term" shall include all basic and any renewal terms.
(b) Lessee shall pay rent to Lessor at its address stated above, except as
otherwise directed by Lessor. Rent payments shall be in the amount set forth in,
and due as stated in the applicable Schedule. If any Advance Rent (as stated in
the Schedule) is payable, it shall be due when the Lessee signs the Schedule.
Advance Rent shall be applied to the first rent payment and the balance, if any,
to the final rent payment(s) under such Schedule. In no event shall any Advance
Rent or any other rent payments be refunded to Lessee. If rent is not paid
within ten (10) days of its due date, Lessee agrees to pay a late charge of
five cents ($.05) per dollar on, and in addition to, the amount of such rent but
not exceeding the lawful maximum, if any.
3. RENT ADJUSTMENT:
(a) If, solely as a result of Congressional enactment of any law
(including, without limitation, any modification of, or amendment or addition
to the Internal Revenue Code of 1986, as amended. ("CODE")), the maximum
effective corporate income tax rate (exclusive of any minimum tax rate) for
calendar-year taxpayers ("EFFECTIVE RATE") is higher than thirty-five percent
(35%) for any year during the lease term, then Lessor shall have the right to
increase such rent payments by requiring payment of a single additional sum. The
additional sum shall be equal to the product of (i) the Effective Rate
(expressed as a decimal) for such year less .35 (or, in the event that any
adjustment has been made hereunder for any previous year, the Effective Rate
(expressed as a decimal) used in calculating the next previous adjustment) times
(ii) the adjusted Termination Value (defined below), divided by (iii) the
difference between the new Effective Rate (expressed us a decimal) and one (1).
The adjusted Termination Value shall be the Termination Value (calculated as of
the first rent due in the year for which the adjustment is being mode) minus the
Tax Benefits that would be allowable under Section 168 of the Code (as of the
first day of the year for which such adjustment is being made and all future
years of the lease term). The Termination Values and Tax Benefits are defined on
the Schedule. Lessee shall pay to Lessor the full amount of the additional rent
payment on the later of (i) receipt of notice or (ii) the first day of the year
for which such adjustment is being made.
(b) Lessee's obligation under this section 3 shall survive any expiration
or termination of this Agreement.
4. TAXES:
(a) If permitted by law, Lessee shall report and pay promptly all taxes,
fees and assessments due, imposed, assessed or levied against any Equipment (or
purchase, ownership, delivery, leasing, possession, use or operation thereof),
this Agreement (or any rents or receipts hereunder), any Schedule, Lessor or
Lessee by any governmental entity or taxing authority during or related to the
term of this Agreement, including, without limitation, all license and
registration fees, and all sales, use, personal property, excise, gross
receipts, franchise, stamp or other taxes, imposts, duties and charges, together
with any penalties, fines or interest thereon (collectively "TAXES"). Lessee
shall have no liability for Taxes imposed by the United States of America or any
state or political subdivision thereof which are on or measured by the net
income of Lessor except as provided in Sections 3 and 14(c). Lessee shall
promptly reimburse Lessor (on an after tax basis) for any Taxes charged to or
assessed against Lessor, Lessee shall show Lessor us the owner of the Equipment
on all tax reports or returns, and send Lessor a copy of each report or return
and evidence of Lessee's payment of Taxes upon request.
(b) Lessee's obligations, and Lessor's rights and privileges, contained in
this Section 4 shall survive the expiration or other termination of this
Agreement.
5. REPORTS:
(a) If any tax or other lien shall attach to any Equipment, Lessee will
notify Lessor in writing, within ten (10) days after Lessee becomes aware of the
tax or lien. The notice shall include the full particulars of the tax or lien
and the location of such Equipment on the date of the notice.
(b) Lessee will deliver to Lessor financial statements as follows. Lessee
agrees to provide quarterly unaudited statements and annual audited statements
consolidated with its parent, ChromaVision Medical Systems, Inc., certified by a
recognized firm of certified public accountants, within 15 days after the
statements are provided to the Securities and Exchange Commission ("SEC"). All
such statements are to be prepared using generally accepted accounting
principles ("GAAP") and, if Lessee is a publicly held company, are to be in
compliance with SEC requirements. Lessee shall also provide to Lessor on a
quarterly basis summaries of its discreet operations in a format consistent with
its projections.
(c) Lessor may inspect any Equipment during normal business hours after
giving Lessee reasonable prior notice.
(d) Lessee will keep the Equipment at the Equipment Location(s) (specified
in the applicable Schedule) and will give Lessor prior written notice of any
relocation of Equipment. If Lessor asks, Lessee will promptly notify Lessor in
writing of the location of my Equipment.
(e) If any Equipment is lost or damaged (where the estimated repair costs
would exceed the greater of ten percent (10%) of the original Equipment cost or
ten thousand and 00/100 dollars ($10,000)), or is otherwise involved in an
accident causing personal injury or property damage, Lessee will promptly and
fully report the event to Lessor in writing.
(f) Lessee will furnish a certificate of an authorized officer of Lessee
stating that he has reviewed the activities of Lessee and that, to the best of
his knowledge, there exists no default or event which with notice or lapse of
time (or both) would become such a default within thirty (30) days after any
request by Lessor.
(g) Lessee will promptly notify Lessor of any change in Lessee's state of
incorporation or organization.
6. DELIVERY, USE AND OPERATION:
(a) All Equipment shall be shipped directly from the Supplier to Lessee.
(b) Lessee agrees that the Equipment will be used by Lessee solely in the
conduct of its business and in a manner complying with all applicable laws,
regulations and insurance policies and Lessee shall not discontinue use of the
Equipment.
(c) Lessee will not move any equipment from the location specified on the
Schedule, without the prior written consent of Lessor.
(d) Lessee will keep the Equipment free and clear of all liens and
encumbrances other than those which result from acts of Lessor.
(e) Lessor shall not disturb Lessee's quiet enjoyment of the Equipment
during the term of the Agreement unless a default has occurred and is continuing
under this Agreement.
7. MAINTENANCE:
(a) Lessee will, at its sole expense, maintain each unit of Equipment in
good operating order and repair, normal wear and tear excepted. The Lessee shall
also maintain the Equipment in accordance with manufacturer's recommendations.
Lessee shall make all alterations or modifications required to comply with any
applicable law, rule or regulation during the term of this Agreement. If Lessor
requests, Lessee shall affix plates, tags or other identifying labels showing
ownership thereof by Lessor. The tags or labels shall be placed in a prominent
position on each unit of Equipment.
(b) Lessee will not attach or install anything on any Equipment that will
impair the originally intended function or use of such Equipment without the
prior written consent of Lessor. All additions, parts, supplies, accessories,
and equipment ("ADDITIONS") furnished or attached to any Equipment that are not
readily removable shall become the property of Lessor. All Additions shall be
made only in compliance with applicable law. Lessee will not attach or install
any Equipment to or in any other personal or real property without the prior
written consent of Lessor.
8. STIPULATED LOSS VALUE: If for any reason any unit of Equipment becomes worn
out, lost, stolen, destroyed, irreparably damaged or unusable ("CASUALTY
OCCURRENCES") Lessee shall promptly and fully notify Lessor in writing. Lessee
shall pay Lessor the sum of (i) the Stipulated Loss Value (see Schedule) of the
affected unit determined as of the rent payment date prior to the Casualty
Occurrence; and (ii) all rent and other amounts which are then due under this
Agreement on the Payment Date (defined below) for the affected unit. The Payment
Date shall be the next rent payment date after the Casualty Occurrence. Upon
Payment of all sums due hereunder, the term of this lease us to such unit shall
terminate.
9. INSURANCE:
(a) Lessee shall bear the entire risk of any loss, theft, damage to, or
destruction of, any unit of Equipment from any cause whatsoever from the time
the Equipment is shipped to Lessee.
(b) Lessee agrees, at its Own expense, to keep all Equipment insured for
such amounts and against such hazards as Lessor may reasonably require. All such
policies shall be with companies, and on terms, reasonably satisfactory to
Lessor. The insurance shall include coverage for damage to or loss of the
Equipment, liability for personal injuries, death or property damage, Lessor
shall be named as additional insured with a loss payable clause in favor of
Lessor, as its interest may appear, irrespective of any breach of warranty or
other act Or omission of Lessee. The insurance shall provide for liability
coverage in an amount equal to at least ONE MILLION U.S. DOLLARS ($1,000,000.00)
total liability per occurrence, unless otherwise stated in any Schedule. The
casualty/property damage coverage shall be in an amount equal to the higher of
the Stipulated Loss Value or the full replacement cost of the Equipment. No
insurance shall be subject to any co-insurance clause. The insurance policies
shall provide that the insurance may not be altered or canceled by the insurer
until after thirty (30) days written notice to Lessor. Lessee agrees to deliver
to Lessor evidence of insurance reasonably satisfactory to Lessor.
(c) Lessee hereby appoints Lessor as Lessee's attorney-in-fact to make
proof of loss and claim for insurance, and to make adjustments with insurers and
to receive payment of and execute or endorse all documents, checks or drafts in
connection with insurance payments. Lessor shall not set as Lessee's
attorney-in-fact unless Lessee is in default. Lessee shall pay any reasonable
expenses of Lessor in adjusting or collecting insurance. Lessee will not make
adjustments with insurers except with respect to claims for damage to any unit
of Equipment where the repair costs are less than the lesser of ten percent
(10%) of the original Equipment cost or ten thousand and 00/100 dollars
($10,000). Lessor may, at its option, apply proceeds of insurance, in whole or
in part, to (i) repair or replace Equipment or any portion thereof, or (ii)
satisfy any obligation of Lessee to Lessor under this Agreement.
10. RETURN OF EQUIPMENT:
(a) At the expiration or termination of this Agreement or any Schedule,
Lessee shall perform any testing and repairs required to place the units of
Equipment in the same condition and appearance as when received by Lessee
(reasonable wear and tear excepted) and in good working order for the original
intended purpose of the Equipment. If required the units of Equipment shall be
deinstalled, disassembled and crated by an authorized manufacturer's
representative or such other service person as is reasonably satisfactory to
Lessor. Lessee shall remove installed markings that are not necessary for the
operation, maintenance or repair of the Equipment. All Equipment will be
cleaned, cosmetically acceptable, and in such condition as to be immediately
installed into use in a similar environment for which the Equipment was
originally intended to be used. All waste material and fluid must be removed
from the Equipment and disposed of in accordance with then current waste
disposal laws. Lessee shall return the units of Equipment to a location within
the continental United States as Lessor shall direct. Lessee shall obtain and
pay for a policy of transit insurance for the redelivery period in on amount
equal to the replacement value of the Equipment. The transit insurance must name
Lessor as the loss payee. The Lessee shall pay for all costs to comply with this
Section (a).
(b) Until Lessee has fully complied with the requirements of Section 10(a)
above, Lessee's rent payment obligation and all other obligations under this
Agreement shall continue from month to month notwithstanding any expiration or
termination of the lease term). Lessor may terminate the Lessee's right to use
the Equipment upon ten (10) days notice to Lessee.
(c) Lessee shall provide to Lessor a detailed inventory of all components
of the Equipment including model and serial numbers. Lessee shall also provide
an up-to-date copy of all other documentation pertaining to the Equipment. All
service manuals, blue prints, process flow diagrams, operating manuals,
inventory and maintenance records shall be given to Lessor at least ninety (90)
days and not more than one hundred twenty (120) days prior to lease termination.
(d) Lessee shall make the Equipment available for on-site operational
inspections by potential purchasers at least one hundred twenty (120) days prior
to and continuing up 10 lease termination. Lessor shall provide Lessee with
reasonable notice prior to any inspection. Lessee shall provide personnel, power
and older requirements necessary to demonstrate electrical, hydraulic and
mechanical systems for each item of Equipment.
11. DEFAULT AND REMEDIES:
(a) Lessor may in writing declare this Agreement in default if: (i) Lessee
breaches its obligation to pay rent or any other sum when due and fails to cure
the breach within ten (10) days; (ii) Lessee breaches any of its insurance
obligations under Section 9 and fails to cure any breach within thirty (30)
after written notification of same from an insurer; (iii) Lessee breaches any of
its other obligations and fails to cure that breach within thirty (30) days
after written notice from Lessor; (iv) any representation or warranty made by
Lessee in connection with this Agreement shall be false or misleading in any
material respect: (v) Lessee or any guarantor or other obligor for the Lessee's
obligations hereunder ("GUARANTOR") becomes insolvent or ceases to do business
as a going concern; (vi) any Equipment is illegally used; (vii) if Lessee or any
Guarantor is a natural person, any death Or incompetency of Lessee or such
Guarantor; (viii) a petition is filed by or against Lessee or any Guarantor
under any bankruptcy or insolvency laws and in the event of an involuntary
petition, the petition is not dismissed within forty-five (45) days of the
filing date; (ix) Lessee defaults under any other material obligation for (A)
borrowed money, (B) the deferred purchase price of property, or (C) payments due
under lease agreements; (x) there is any dissolution, termination of existence,
merger, consolidation or change in controlling ownership of Lessee or any
Guarantor; (xi) there is a material adverse change in the Lessee's financial
condition; or (xii) Guarantor breaches any subsection under Section 7. Default
and Remedies in its Master Security Agreement with General Electric Capital
Corporation dated July 15, 2003 and the Amendment to the Master Security
Agreement dated July 31, 2003, and fails to cure the breach within thirty (30)
days of its occurrence. The default declaration shall apply to all Schedules
unless specifically excepted by Lessor, and any default under the terms of this
or any other agreement between Lessor and Lessee and Guarantor may be declared
by Lessor a default under this and any such other agreement.
(b) After a default, at the request of Lessor, Lessee shall comply with
the provisions of Section 10(a), Lessee hereby authorizes Lessor to peacefully
enter any premises where any Equipment may be and take possession of the
Equipment. Lessee shall immediately pay to Lessor without further demand as
liquidated damages for loss of a bargain and not as a penally, the Stipulated
Loss Value of the Equipment (calculated as of the rent payment date prior to the
declaration of default), and all rents and other sums then due under this
Agreement and all Schedules, Lessor may terminate this Agreement as to any or
all of the Equipment. A termination shall occur only upon written notice by
Lessor to Lessee and only as to the units of Equipment specified in any such
notice. Lessor may, but shall not be required to sell Equipment at private or
public sale, in bulk or in parcels, with or without notice, and without having
the Equipment present at the place of sale. Lessor may also, but shall not be
required to, lease, otherwise dispose of or keep idle all or part of the
Equipment. Lessor may use Lessee's premises for a reasonable period of time for
any or all of the purposes stated above without liability for rent, costs,
damages or otherwise. The proceeds of sale, lease or other disposition, if any,
shall be applied in the following order of priorities: (i) to pay all of
Lessor's costs, charges and expenses incurred in raking, removing, holding,
repairing and selling, leasing or otherwise disposing of Equipment; then, (ii)
to the extent not previously paid by Lessee, to pay Lessor all sums due from
Lessee under this Agreement; then (iii) to reimburse to Lessee any sums
previously paid by Lessee as liquidated damages; and (iv) any surplus shall be
retained by Lessor. Lessee shall immediately pay any deficiency in (i) and (ii)
above.
(c) The foregoing remedies are cumulative, and any or all thereof may be
exercised instead of or in addition to each other or any remedies at law, in
equity, or under statute. Lessee waives notice of sale or other disposition (and
the time and place thereof), and the manner and place of any advertising. Lessee
shall pay Lessor's actual attorney's fees incurred in connection with the
enforcement, assertion, defense or preservation of Lessor's rights and remedies
under this Agreement, or if prohibited by law, such lesser sum as may be
permitted. Waiver of any default shall not be a waiver of any other or
subsequent default,
12. ASSIGNMENT: LESSEE SHALL NOT SELL, TRANSFER, ASSIGN, ENCUMBER OR SUBLET ANY
EQUIPMENT OR THE INTEREST OF LESSEE IN THE EQUIPMENT WITHOUT THE PRIOR WRITTEN
CONSENT OF LESSOR. Lessor may, without the consent of Lessee, assign this
Agreement, any Schedule or the right to enter into a Schedule, Lessee agrees
that if Lessee receives written notice of an assignment from Lessor, Lessee will
pay all rent and all other amounts payable under any assigned Schedule to Such
assignee or as instructed by Lessor. Lessee also agrees to confirm in writing
receipt of the notice of assignment as may be reasonably requested by assignee.
Lessee hereby waives and agrees not to assert against any such assignee any
defense, set-off, recoupment claim or counterclaim which Lessee has or may it
any time have against Lessor for any reason whatsoever.
13. NET LEASE: Lessee is unconditionally obligated to pay all rent and other
amounts due for the entire lease term no matter what happens, even if the
Equipment is damaged or destroyed, if it is defective or if Lessee no longer can
use it, Lessee is not entitled to reduce or set-off against rent or other
amounts due to Lessor or to
anyone to whom Lessor assigns this Agreement or any Schedule whether Lessee's
claim arises out of this Agreement, any Schedule, any statement by Lessor,
Lessor's liability or any manufacturer's liability, strict liability, negligence
or otherwise.
14. INDEMNIFICATION:
(a) Lessee hereby agrees to indemnify Lessor, its agents, employees,
successors and assigns (on an after tax basis) from and against any and all
losses, damages, penalties, injuries, claims, actions and suits, including legal
expenses, of whatsoever kind and mature arising out of or relating to the
Equipment or this Agreement, except to the extent the losses, damages,
penalties, injuries, claims, actions, suits or expenses result from Lessor's
gross negligence or willful misconduct ("CLAIMS"). This indemnity shall include,
but is not limited to, Lessor's strict liability in [ILLEGIBLE] and Claims,
arising out of (i) the selection, manufacture, purchase, acceptance or rejection
of Equipment, the ownership of Equipment during the term of this Agreement, and
the delivery, lease, possession, maintenance, uses, condition, return or
operation of Equipment (including, without limitation, latent and other defects,
whether or not discoverable by Lessor or Lessee and any claim for patent,
trademark or copyright infringement or environmental damage) or (ii) the
condition of Equipment sold or disposed of after use by Lessee, any sublessee or
employees of Lessee. Lessee shall, upon request, defend any actions based on, or
arising out of, any of the foregoing.
(b) Lessee hereby represents, warrants and covenants that (i) on the Lease
Commencement Date for any unit of Equipment, such unit will qualify for all of
the items of deduction and credit specified in Section C of the applicable
Schedule ("TAX BENEFITS") in the hands of Lessor, and (ii) at no time during the
term of this Agreement will Lessee take or omit to take, nor will it permit any
sublessee or assignee to take or omit to take, any action (whether or not such
act or omission it otherwise permitted by Lessor or by this Agreement), which
will result in the disqualification of any Equipment for, or recapture of, all
or any portion of such Tax Benefits.
(c) If as a result of a breach of any representation, warranty or covenant
of the Lessee contained in this Agreement or any Schedule (i) tax counsel of
Lessor shall determine that Lessor is not entitled to claim on its Federal
income tax return all or any portion of the Tax Benefits with respect to any
Equipment, or (ii) any Tax Benefit claimed on the Federal income tax return of
Lessor is disallowed or adjusted by the Internal Revenue Service, or (iii) any
Tax Benefit is recalculated or recaptured (any determination, disallowance,
adjustment, recalculation or recapture being a "LOSS"), then Lessee shall pay to
Lessor, as an indemnity and as additional rent, an amount that shall, in the
reasonable opinion of Lessor, cause Lessor's after-tax economic yields and cash
flows to equal the Net Economic Return that would have been realized by Lessor
if such Loss had not occurred. Such amount shall be payable upon demand
accompanied by a statement describing in reasonable detail such Loss and the
computation of such amount. The economic yields and cash flows shall be computed
on the same assumptions, including tax rates as were used by Lessor in
originally evaluating the transaction ("NET ECONOMIC RETURN"). If an adjustment
has been made under Section 3 then the Effective Rate used in the next preceding
adjustment shall be substituted.
(d) All references to Lessor in this Section 14 include Lessor and the
consolidated taxpayer group of which Lessor is a member. All of Lessor's rights,
privileges and indemnities contained in this Section 14 shall survive the
expiration or other termination of this Agreement. The rights, privileges and
indemnities contained herein are expressly made for the benefit of, and shall be
enforceable by Lessor, its successors and assigns.
15. DISCLAIMER: LESSEE ACKNOWLEDGES THAT IT HAS SELECTED THE EQUIPMENT WITHOUT
ANY ASSISTANCE FROM LESSOR, ITS AGENTS OR EMPLOYEES. LESSOR DOES NOT MAKE, HAS
NOT MADE, NOR SHALL BE DEEMED TO MAKE OR HAVE MADE, ANY WARRANTY OR
REPRESENTATION, EITHER EXPRESS OR IMPLIED, WRITTEN OR ORAL, WITH RESPECT TO THE
EQUIPMENT LEASED UNDER THIS AGREEMENT OR ANY COMPONENT THEREOF, INCLUDING,
WITHOUT LIMITATION, ANY WARRANTY AS TO DESIGN, COMPLIANCE WITH SPECIFICATIONS,
QUALITY OF MATERIALS OR WORKMANSHIP, MERCHANTABILITY, FITNESS FOR ANY PURPOSE,
USE OR OPERATION. SAFETY, PATENT, TRADEMARK OR COPYRIGHT INFRINGEMENT, OR TITLE.
All such risks, as between Lessor and Lessee, are to be borne by Lessee. Without
limiting the foregoing, Lessor shall have no responsibility or liability to
Lessee or any other person with respect to any of the following; (i) any
liability, loss or damage caused or alleged to be caused directly or indirectly
by any Equipment, any inadequacy thereof, any deficiency or defect (latent or
otherwise) of the Equipment, or any other circumstance in connection with the
Equipment; (ii) the use, operation or performance of any Equipment or any risks
relating to it; (iii) any interruption of service, loss of business or
anticipated profits or consequential damages; or (iv) the delivery, operation,
servicing, maintenance, repair, improvement or replacement of any Equipment. If,
and so long as, no default exists under this Agreement, Lessee shall be, and
hereby is, authorized during the term of this Agreement to assert and enforce
whatever claims and rights Lessor may have against any Supplier of the Equipment
at Lessee's sole cost and expense, in the name of and for the account of Lessor
and/or Lessee, as their interests may appear.
16. REPRESENTATIONS AND WARRANTIES OF LESSEE: Lessee makes each of the following
representations and warranties to Lessor on the date hereof and on the date of
execution of each Schedule.
(a) Lessee has adequate power and capacity to enter into, and perform
under, this Agreement and all related documents (together, the "DOCUMENTS"),
Lessee is duly qualified to do business wherever necessary to carry on its
present business and operations, including the jurisdiction(s) where the
Equipment is or is to be located. (NOTE: Steve DIXON PLEASE NOTE FOR CALIFORNIA
LICENSE IF IT HAS NOT BEEN OBTAINED)
(b) The Documents have been duly authorized, executed and delivered by
Lessee and constitute valid, legal and binding agreements, enforceable in
accordance with their terms, except to the extent that the enforcement of
remedies may be limited under applicable bankruptcy and insolvency laws.
(c) No approval, consent or withholding of objections is required from any
governmental authority or entity with respect to the entry into or performance
by Lessee of the Documents except such as have already been obtained.
(d) The entry into and performance by Lessee of the Documents will not:
(i) violate any judgment, order, law or regulation applicable to Lessee or any
provision of Lessee's Certificate of Incorporation or bylaws; or (ii) result in
any breach of, constitute a default under or result in the creation of any lien,
charge, security interest or other encumbrance upon any Equipment pursuant to
any indenture, mortgage, deed of trust, bank loan or credit agreement or other
instrument (other than this Agreement) to which Lessee is a party.
(e) There are no suits or proceedings pending or threatened in court or
before any commission, board or other administrative agency against or affecting
Lessee, which if decided against Lessee will have a material adverse effect on
the ability of Lessee to fulfill its obligations under this Agreement.
(f) The Equipment accepted under any Certificate of Acceptance is and will
remain tangible personal property.
(g) Each financial statement delivered to Lessor has been prepared in
accordance with generally accepted accounting principles consistently applied.
Since the date of the most recent financial statement, there has been no
material adverse change.
(h) Lessee's exact legal name is as set forth in the first sentence of
this Agreement and Lessee is and will be at all times validly existing and in
good standing under the laws of the State of its incorporation or organization
(specified in the first sentence of this Agreement).
(i) The Equipment will at all times be used for commercial or business
purposes.
(j) Lessee is and will remain in full compliance with all laws and
regulations applicable to it including, without limitation, (i) ensuring that no
person who owns a controlling interest in or otherwise controls Lessee is or
shall be (Y) listed on the Specially Designated Nationals and Blocked Person
List maintained by the Office of Foreign Assets Control ("OFAC"), Department of
the Treasury, and/or any other similar lists maintained by OFAC pursuant to any
authorizing statute, Executive Order or regulation or (Z) a person designated
under Section l(b), (c) or (d) of Executive Order No. 13224 (September 23,
2001), any related enabling legislation or any other similar Executive Orders,
and (ii) compliance with all applicable Bank Secrecy Act ("BSA") laws,
regulations and government guidance on BSA compliance and on the prevention and
detection of money laundering violations.
17. EARLY TERMINATION:
(a) On or after the First Termination Date (specified in the applicable
Schedule), Lessee may, so long as no default exists hereunder, terminate this
Agreement as to all (but not less than all) of the Equipment on such Schedule as
of a rent payment date ("TERMINATION DATE"). Lessee must give Lessor at least
ninety (90) days prior written notice of the termination.
(b) Lessee shall, and Lessor may, solicit cash bids for the Equipment on
an AS IS, WHERE IS BASIS without recourse to or warranty from Lessor, express or
implied ("AS IS BASIS"). Prior to the Termination Date, Lessee shall (i) certify
to Lessor any bids received by Lessee and (ii) pay to Lessor (A) the Termination
Value (calculated as of the rent due on the Termination Date) for the Equipment,
and (B) all rent and other sums due and unpaid as of the Termination Date.
(c) If all amounts due hereunder have been paid on the Termination Date,
Lessor shall (i) sell the Equipment on an AS IS BASIS for cash to the highest
bidder and (ii) refund the proceeds of such sale (net of any related expenses)
to Lessee up to the amount of the Termination Value. If such sale is not
consummated, no termination shall occur and Lessor shall refund the Termination
Value (less any expenses incurred by Lessor) to Lessee.
(d) Notwithstanding the foregoing. Lessor may elect by written notice, at
any rime prior to the Termination Date, not to sell the Equipment. In that
event, on the Termination Date Lessee shall (i) return the Equipment (in
accordance with Section 10) and (ii) pay to Lessor all amounts required under
Section 17(b) less the amount of the highest bid certified by Lessee to Lessor.
18. PURCHASE OPTION:
(a) Lessee may at lease expiration purchase all (but not less than all) of
the Equipment in any Schedule on an AS IS BASIS for cash equal to its then Fair
Market Value (plus all applicable sales taxes). Lessee must notify Lessor of its
intent to purchase the Equipment in writing at least one hundred eighty (180)
days in advance. If Lessee is in default or if the Lease has already been
terminated Lessee may not purchase the Equipment.
(b) "Fair Market Value" shall mean the price that a willing buyer (who is
neither a lessee in possession nor a used equipment dealer) would pay for the
Equipment in an arm's-length transaction to a willing seller under no compulsion
to sell. In determining the Fair Market Value the Equipment shall be assumed to
be in the condition in which it is required to be maintained and returned under
this Agreement. If the Equipment is installed it shall be valued on an installed
basis. The costs of removal from current location shall not be a deduction from
the value of the Equipment. If Lessor and Lessee are unable to agree on the Fair
Market Value at least one hundred thirty-five (135) days before lease
expiration. Lessor shall appoint an independent appraiser (reasonably acceptable
to Lessee) to determine Fair Market Value. The independent appraiser's
determination shall be final, binding and conclusive. Lessee shall bear all
costs associated with any such appraisal.
(c) Lessee shall be deemed to have waived this option unless it provides
Lessor with written notice of its irrevocable election to exercise the same
within fifteen (15) days after Fair Market Value is told to Lessee.
19. MISCELLANEOUS:
(a) LESSEE AND LESSOR UNCONDITIONALLY WAIVE THEIR RIGHTS TO A JURY TRIAL
OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT, ANY
OF THE RELATED DOCUMENTS, ANY DEALINGS BETWEEN LESSEE AND LESSOR RELATING TO THE
SUBJECT MATTER OF THIS TRANSACTION OR ANY RELATED TRANSACTIONS, AND/OR THE
RELATIONSHIP THAT IS BEING ESTABLISHED BETWEEN LESSEE AND LESSOR. THE SCOPE OF
THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY
BE FILED IN ANY COURT. THIS WAIVER IS IRREVOCABLE. THIS WAIVER MAY NOT BE
MODIFIED EITHER ORALLY OR IN WRITING. THE WAIVER ALSO SHALL APPLY TO ANY
SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT.
ANY RELATED DOCUMENTS, OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THIS
TRANSACTION OR ANY RELATED TRANSACTION. THIS AGREEMENT MAY BE FILED AS A WRITTEN
CONSENT TO A TRIAL BY THE COURT.
(b) The Equipment shall remain Lessor's property unless Lessee purchases
the Equipment from Lessor and until such time Lessee shall only have the right
to use the Equipment as a lessee. Any cancellation or termination by Lessor of
this Agreement, any Schedule, supplement or amendment hereto, or the lease of
any Equipment hereunder shall not release Lessee from any then outstanding
obligations to Lessor hereunder. All Equipment shall at all times remain
personal property of Lessor even though it may be attached to real property. The
Equipment shall not become part of any other property by reason of any
installation in, or attachment to, other real or personal property.
(c) Time is of the essence of this Agreement Lessor's failure at any time
to require strict performance by Lessee of any of the provisions hereof shall
not waive or diminish Lessor's right at any other time to demand strict
compliance with this Agreement Lessee agrees, upon Lessor's request, to execute,
or otherwise authenticate, any document, record or instrument necessary or
expedient for filing, recording or perfecting the interest of Lessor or to carry
out the intent of this Agreement. In addition, Lessee hereby authorizes Lessor
to file a financing statement and amendments thereto describing the Equipment
described in any and all Schedules now and hereafter executed pursuant hereto
and adding any other collateral described therein and containing any other
information required by the applicable Uniform Commercial Code. Lessee
irrevocably grants to Lessor the power to sign Lessee's name and generally to
act on behalf of Lessee to execute and file financing statements and other
documents pertaining to any or all of the Equipment Lessee hereby ratifies its
prior authorization for Lessor to file financing statements and amendments
thereto describing the Equipment and containing any other information required
by any applicable law (including without limitation the Uniform Commercial Code)
if filed prior to the date hereof. All notices required to be given hereunder
shall be deemed adequately given if sent by registered or certified mail to the
addressee at its address stated herein, or at such other place as such addressee
may have specified in writing. This Agreement and any Schedule and Annexes
thereto constitute the entire agreement of the parties with respect to the
subject matter hereof. NO VARIATION OR MODIFICATION OF THIS AGREEMENT OR ANY
WAIVER OF ANY OF ITS PROVISIONS OR CONDITIONS, SHALL BE VALID UNLESS IN WRITING
AND SIGNED BY AN AUTHORIZED REPRESENTATIVE OF THE PARTIES HERETO.
(d) If Lessee does not comply with any provision of this Agreement, Lessor
shall have the right, but shall not be obligated, to effect such compliance, in
whole or in part. All reasonable amounts spent and obligations incurred or
assumed by Lessor in effecting such compliance shall constitute additional rent
due to Lessor. Lessee shall pay the additional rent within five days after the
date Lessor sends notice to Lessee requesting payment. Lessor's effecting such
compliance shall not be a waiver of Lessee's default
(e) Any rent or other amount not paid to Lessor when due shall bear
interest, from the due date until paid, at the lesser of eighteen percent (18%)
per annum or the maximum rate allowed by law. Any provisions in this Agreement
and any Schedule that are in conflict with any statute, law or applicable rule
shall be deemed omitted, modified or altered to conform thereto. Notwithstanding
anything to the contrary contained in this Agreement or any Schedule, in no
event shall this Agreement or any Schedule require the payment or permit the
collection of amounts in excess of the maximum permitted by applicable law.
(f) Lessee hereby irrevocably authorizes Lessor to adjust the Capitalized
Lessor's Cost up or down by no more than ten percent (10%) within each Schedule
to account for equipment change orders, equipment returns, invoicing errors, and
similar matters. Lessee acknowledges and agrees that the rent shall be adjusted
as a result of the change in the Capitalized Lessor's Cost. Lessor shall send
Lessee a written notice stating the final Capitalized Lessor's Cost, if it has
changed.
(g) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL IN ALL RESPECTS BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH, THE
INTERNAL LAWS OF THE STATE OF CONNECTICUT (WITHOUT REGARD TO THE CONFLICT OF
LAWS PRINCIPLES OF SUCH STATE), INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY
AND PERFORMANCE, REGARDLESS OF THE LOCATION OF THE EQUIPMENT.
(h) Any cancellation or termination by Lessor, pursuant to the provisions
of this Agreement, any Schedule, supplement or amendment hereto, of the lease of
any Equipment hereunder, shall not release Lessee from any then outstanding
obligations to Lessor hereunder.
(i) To the extent that any Schedule would constitute chattel paper, as
such term is defined in the Uniform Commercial Code as in effect in any
applicable jurisdiction, no security interest therein may be created through the
transfer or possession of this Agreement in and of itself without the transfer
or possession of the original of a Schedule executed pursuant to this Agreement
and incorporating this Agreement by reference; and no security interest in this
Agreement and a Schedule may be created by the transfer or possession of any
counterpart of the Schedule other than the original thereof, which shall be
identified as the document marked "Original" and all other counterparts shall be
marked "Duplicate".
(j) Each party hereto agrees to keep confidential, the terms and
provisions of the Documents and the transactions contemplated hereby and thereby
(collectively, the "TRANSACTIONS"). Notwithstanding the foregoing, the
obligations of confidentiality contained herein, as they relate to the
Transactions, shall not apply to the federal tax structure or federal tax
treatment of the Transactions, and each party hereto (and any employee,
representative, or agent of any party hereto) may disclose to any and all
persons, without limitation of any kind, the federal tax structure and federal
tax treatment of the Transactions. The preceding sentence is intended to cause
each Transaction to be treated as not having been offered under conditions of
confidentiality for purposes of Section 1.6011-4(b)(3) (or any successor
provision) of the Treasury Regulations promulgated under Section 6011 of the
Internal Revenue Code of 1986, as amended, and shall be construed in a manner
consistent with such purpose. In addition, each parry hereto acknowledges that
it has no proprietary or exclusive rights to the federal tax structure of the
Transactions or any federal tax matter or federal tax idea related to the
Transactions.
IN WITNESS WHEREOF, Lessee and Lessor have caused this Agreement to be
executed by their duly authorized representatives as of the dare first above
written.
LESSOR: LESSEE:
GENERAL ELECTRIC CAPITAL CORPORATION CHROMA VISION ONCOLOGY SERVICES, INC.
By:____________________________________ By: /s/ STEPHEN DIXON
__________________
Name:__________________________________ Name: STEPHEN DIXON
Title:_________________________________ Title: 7/1/04
IMPORTANT! YOUR INVOICE INFORMATION
DIRECTIONS: Please complete and return with your signed deal documents
or FAX to 203 205-2193
If you have completed this form in the past and would [ ] YES, please invoice me the same way as my prior account.
like to be Invoiced the same way, please check the YES box. [ ] NO, please see below invoice requirements.
Please make any necessary corrections to the following information:
Customer name ChromaVision Oncology Services, Inc.
------------------------------------------------------
Customer e-mail address SDIXON@CHROMAVISION.COM
------------------------------------------------------
Contact name CARRIE TAYLOR Title AP CLERK
----------------------- ----------------------------
Contact phone # 949-443-3355x266 Cellphone #____________ FAX # 949-443-3366
------------------ --------------
REQUIRED SECTION:
1. WHERE WOULD YOU LIKE YOUR INVOICE SENT?
Billing name (only if different
than the Customer name shown above) CHROMA VISION ONCOLOGY SENIZAS, Inc.
----------------------------------------
Billing Address 33171 [ILLEGIBLE] City State/Zip [ILEEGIBLE]
[ILEEGIBLE] CA 92675
------------------- ---------------
Attention CARRIE TAYLOR Phone 949-443- Billing e-mail address [ILLEGIBLE]
------------- 3355x266 --------------
--------
IS THIS THE SAME PERSON WHO WILL ACCESS MANAGE ACCOUNTS,
OUR WEB-BASED ACCOUNT MANAGEMENT TOOL? YES[X] NO[ ]
IF NO, PLEASE INDICATE THE PERSON WHO WILL BE THE PRIMARY USER FOR YOUR
COMPANY:
User's Name___________________________________User's Phone___________________
User's Email__________________________________User's Title___________________
OPTIONAL SECTION:
2. WHAT INFORMATION WOULD YOU LIKE ON YOUR INVOICE?
ASSET DESCRIPTION ASSET LOCATION
[ ] Company Purchase Order Number [X] Description of first asset only [X]Location of first asset only
(if checked, list PO number:_____________________)
[ ] Company Reference Number [ ] Description of all assets* [ ]Location of all assets*
(if checked, list reference number_______________)
[ ] Breakdown of payment and tax by asset
*If you choose to receive a description and/or location of all assets,
please be aware that a large number of assets will produce a multiple/many
page invoice.
3. INVOICING ROLL-UP
WOULD YOU LIKE TO RECEIVE ONE COMBINED INVOICE BY
CUSTOMER NUMBER? [X] YES [ ] NO
If you have one customer number with multiple accounts, this option will
allow all of your accounts to the grouped on one invoice if the DUE DATE and
BILLING ADDRESS are the same for each account. For example: 6566559-001,
7784913-001, 5655599-005
WOULD YOU LIKE TO RECEIVE ONE COMBINED INVOICE BY
ACCOUNT NUMBER? [X] YES [ ] NO
This option will allow all of your accounts with the same account number to
be grouped on one in voice if the DUE DATE and BILLING ADDRESS are the same
for each account, This is helpful when you can't combine by Customer Number
due to differences in Due Dates or Billing Addresses which are the same for
one account but different across your entire list of accounts.
4. TO HELP US PLAN FOR POSSIBLE FUTURE ENHANCEMENTS TO INVOICES, WHAT OTHER
INFORMATION WOULD YOU LIKE TO SEE ON YOUR INVOICE?
___________________________________
GLENN.J.MEYER
TRANSACTION COORDINATOR ACCOUNT SCHEDULE # 4155925001
EQUIPMENT CONCENTRATION RIDER
CHROMA VISION ONCOLOGY SERVICES, INC. ("Customer"), on or before June 14, 2005,
shall cause the composition and mix of Equipment financed after June 23,2004
under the Master Lease Agreement dated as of June 23,2004 between Customer and
General Electric Capital Corporation to conform to and meet the following
concentration requirements (hereinafter "Concentration Requirements") for each
class of Equipment (hereinafter "Equipment Class") as identified and set forth
below. Customer herein represents and warrants that it shall maintain each such
Equipment Class and its respective Concentration Requirement from and after such
above referenced date and continuing thereafter to the end of the term:
EQUIPMENT CLASS CONCENTRATION REQUIREMENT
- --------------- -------------------------
Laboratory & scientific equipment: Minimum of 69%
Biopharma Equipment: Maximum of 18%
Computers, networking equipment, Maximum of 7%
& similar:
Soft costs (leaseholds, software, Maximum of 6%
& similar):
Accepted and Agreed:
CHROMAVISION ONCOLOGY SERVICES, INC.
By: /s/ STEPHEN DIXON
-----------------
Title: CFO
Date: 7/1/04
[GE CAPITAL LOGO] *MULTI2004*
GE CAPITAL
SUBMIT VIA FAX: GE Healthcare Financial Services
EPS SETUP FORM ATTN: EPS FACILITATOR Phone: (262) 798-4494
(262)798-4530 Fax: (262) 798-4530
1.SENDER INFORMATION: . INSTRUCTIONS TO ENROLL IN EPS PLAN:
SENDER NAME: A. Complete sections 1 - 7
(signature and all other information is required)
SENDER PHONE NUMBER: B. Include a copy of a voided check, on which is noted your
bank, branch and account number
C. PLEASE SUBMIT VIA FAX TO: (262) 798-4530
2. AUTHORIZATION AGREEMENT FOR PRE-ARRANGED PAYMENT PLAN:
(a) CHROMAVISION ONCOLOGY SERVICES, INC. ("DEBTOR/LESSEE") authorizes
General Electric Capital Corporation ("GE CAPITAL") to initiate
debit entries for payment becoming due pursuant to the terms and
conditions set forth in the lease or loan agreement ("AGREEMENT").
(b) Debtor/Lessee understands that the basic term rent/loan payment and
all applicable taxes are solely their responsibility. If payment is
not satisfied due to account closure, insufficient funds, or
cancellation of any required automated payment services,
Debtor/Lessee agrees to remit payment plus any applicable late
charges, as set forth in the lease/loan agreement.
(c) It is incumbent upon the Debtor/Lessee to give written notice to GE
Capital of any changes to this authorization or the below,
referenced bank account information 10 days prior to payment date;
Debtor/Lessee may revoke this authorization by giving 10 days
written notice to GE Capital unless otherwise stipulated in the
lease/loan agreement.
(d) If a deduction is made in error. Debtor/Lessee has the right to be
paid within five business days by GE Capital the amount of the
erroneous deduction, provided GE Capital is notified in writing of
such error.
(e) Cosigner must also sign if the account is a joint account.
3.GE CAPITAL ACCOUNT NUMBER(s): (Invoice BILLING ID, 10-digit
number formatted: 1234567-001)
ACCOUNT: 4155925-001 ACCOUNT:__________________ ACCOUNT:_________________ ACCOUNT:_______________
-------------
ACCOUNT:______________ ACCOUNT:__________________ ACCOUNT:_________________ ACCOUNT:_______________
4. FIRST PAYMENT DEBIT DATE (MM/DD/YY) FIRST PAYMENT:
8/1/2004
5. COMPLETE ALL BANK AND DEBTOR/LESSEE INFORMATION:
NAME OF BANK OR FINANCIAL INSTITUTION: BANK ACCOUNT NUMBER: ABA ROUTING NUMBER (9-DIGIT NUMBER)
[ILLEGIBLE] 1892035252 121137522
- -------------------------------------------- -------------------- -----------------------------------
ADDRESS OF BANK OR FINANCIAL INSTITUTION: CITY: STATE: ZIP CODE:
[ILLEGIBLE] [ILLEGIBLE] CA 92130
- -------------------------------------------- -------------------- -----------------------------------
SIGNATURE OF AUTHORIZED [ILLEGIBLE] DATE: COMPANY NAME: CONTACT NAME:
[ILLEGIBLE] 7/1/04 [ILLEGIBLE] STEPHEN DIXON
- -------------------------------------------- -------------------- -----------------------------------
NAME OF JOINT ACCOUNT HOLDER: (Please Print) COMPANY ADDRESS CONTACT PHONE NUMBER:
____________________________________________ 33171 [ILLEGIBLE] 949-443-3355X226
-------------------- -----------------------------------
SIGNATURE OF JOINT ACCOUNT HOLDER: DATE: CITY: CONTACT FAX NUMBER:
____________________________________________ [ILLEGIBLE] 949-443-5257
-------------------- -----------------------------------
NAME OF AUTHORIZED SIGNER: (PLEASE PRINT) STATE: ZIP CODE: CONTACT EMAIL ADDRESS:
STEPHEN DIXON CA 92675 [ILLEGIBLE]
- -------------------------------------------- -------------------- -----------------------------------
6. Would you like to have property taxes paid via EPS on above accounts? CHECK (X): YES:[ ] NO:[X]
7. Would you like to receive a complementary invoice? CHECK (X); YES:[X] NO:[ ]
CS(R020403)4155925001 *LEAS8760*
BIOTECH EQUIPMENT SCHEDULE
SCHEDULE NO. 001
DATED THIS_______________________
TO MASTER LEASE AGREEMENT
DATED AS OF JUNE 23, 2004
LESSOR & MAILING ADDRESS: LESSEE & MAILING ADDRESS:
General Electric Capital Corporation ChromaVision Oncology Services, Inc.
83 Wooster Heights Road 33171 Pasco Cerveza
Dunbury, CT 06810 San Juan Cupistruno, CA 92675
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 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 MODEL AND TYPE OF
OF UNITS LESSOR'S COST MANUFACTURER SERIAL NUMBER EQUIPMENT
SEE EXHIBIT A ATTACHED HERETO AND MADE A PART HEREOF
B. FINANCIAL TERMS
1. Advance Rent (if any): $ 18,009.30 5. Basic Term Commencement Date:
2. Capitalized lessor's Cost: $ 630,545.10 6. Lessee Federal Tax ID No.:
3. Basic Term (No. of Months): 36 Months. 7. Last Delivery Date:
4. Basic Term Lease Rate Factor: 2.856148 8. Daily Lease Rate Factor: .0952
9. First Termination Date: Thirty (30) 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 __________________.
11. Basic Term Rent. Commencing on_______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: 5 Years.
3. Basis: 100% of the Capitalized Lessor's Cost.
D. PROPERTY TAX
APPLICABLE TO EQUIPMENT LOCATED IN CALIFORNIA: Lessee agrees that it will (a)
list all such Equipment, (b) report all property taxes assessed against
such Equipment and (c) pay all such taxes when due directly to the
appropriate taxing authority until Lessor shall otherwise direct in
writing. Upon request of Lessor, Lessee shall promptly provide proof of
filing and proof of payment to Lessor.
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 VARIOUS (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 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 D ATTACHED HERETO AND MADE 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 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 govrnmental 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 Equipment Lessee shall, at
its expense:
(a) at least one hundred eighty (180) days and not more than two hundred
seventy (270) days prior to expiration or earlier termination of the
Lease, provide to Lessor a detailed inventory or 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 eighty (180) 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 lilting of all software features
listed individually:
(c) at least one hundred eighty (180) 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) provide 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 eighty (180) 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 eighty (180) 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 (c) 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 [ILLEGIBLE] 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 in Lessor.
2 LEASE TERM OPTIONS
EARLY LEASE TERM OPTIONS
The Lease is amended by adding the following thereto:
EARLY PURCHASE OPTION:
(a) Provided that the Lease has not been earlier terminated and
provided further that Lessee is not in default under the Lease or any
other agreement between Lessor and Lessee, Lessee may. UPON AT LEAST 30
DAYS BUT NO MORE THAN 270 DAYS PRIOR WRITTEN NOTICE TO LESSOR OF LESSEE'S
IRREVOCABLE ELECTION TO EXERCISE SUCH OPTION, purchase on an AS IS BASIS
all (but not less than all) of the Equipment listed and described in this
Schedule on the rent payment date (the "Early Purchase Date") which is 30
months from the Basic Term Commencement Date for a price equal to Twenty
Eight and Eighty [ILLEGIBLE] percent (28.80%) of the Capitalized Lessor's
Cost (the "FMV Early Option Price"), plus all applicable sales taxes.
Lessor and Lessee agree that the FMV Early Option Price is a reasonable
prediction of the Fair Market Value (as such term is defined in the
PURCHASE OPTION Section subsection (b) of the Lease hereof
the Equipment ai the time the option is exercisable. Lessor and Lessee
agree that if Lessee makes any non-severable improvement to the Equipment
which increases the value of the Equipment and is not required or
permitted by the MAINTENANCE Section or the RETURN OF EQUIPMENT Section of
the Lease prior to lease expiration, then at the time of such option being
exercised, Lessor and Lessee shall adjust the purchase price to reflect
any addition to the price anticipated to result from such improvement.
(The purchase option granted by this subsection shall be referred to
herein as the "Early Purchase Option".
(b) If Lessee exercises its Early Purchase Option with respect to
the Equipment leased hereunder, then on the Early Purchase Option Date,
Lessee shall pay to Lessor any Rent and other sums due and unpaid on the
Early Purchase Option Date and Lessee shall pay the FMV Early Option
Price, plus all applicable sales taxes, to Lessor in cash.
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
- ------------ --------------------------------------------- ----------
ChromaVision Oncology Services, Inc. 33171 Pasco Cerveza, San Juan Capistrano, CA $630,126.81
General Electric (Advance Rent) 83 Wooster Heights Road, Danbury, CT $ 418.29*
*Applied $17,408.99 to Interim Rent and $17,591.01 to Advance Rent from
Good Faith Deposit of $35,000.00
This authorization and direction is given pursuant to the same authority
authorizing the above-mentioned financing.
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) AS OF THE DATE STATED
ABOVE, AND COPIES OF THE BILL(S) OF LADING OR OTHER DOCUMENTATION ACCEPTABLE TO
LESSOR WHICH SHOW THE DATE OF DELIVERY ARE ATTACHED HERETO; (LC) LESSEE
HAS INSPECTED THE EQUIPMENT, AND ALL SUCH TESTING AS IT DEEMS NECESSARY HAS
BEEN PERFORMED BY LESSEE, SUPPLIER OR THE MANUFACTURER; AND (LC) 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; (LC) THE REPRESENTATIONS AND WARRANTIES MADE BY
LESSEE PURSUANT TO OR UNDER THE LEASE ARE TRUE AND CORRECT ON THE DATE HEREOF
AND (LC) LESSEE HAS REVIEWED AND APPROVES OF THE PURCHASE DOCUMENTS FOR THE
EQUIPMENT, IF ANY.
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 CHROMAVISION ONCOLOGY SERVICES, INC.
By:________________________________ By: Stephen Dixon
Name:______________________________ Name: STEPHEN DIXON
Title:_____________________________ Title: CFO
ANNEX D
TO
SCHEDULE NO. 4155925S001
TO MASTER LEASE AGREEMENT
DATED AS OF_______________________
STIPULATED LOSS AND TERMINATION VALUE TABLE
Termination Stipulated Termination Stipulated
Rental Value Loss Value Value Loss Value
Basic Percentage Percentage Rental Percentage Percentage
1 102.116 106.158 19 62.137 68.476
2 100.163 104.333 20 59.707 66.172
3 98. 127 102.424 21 57.261 63.855
4 96.068 100.492 22 54.801 61.522
5 93.965 98.517 23 52.326 59.175
6 91.818 96.497 24 49.836 56.812
7 89.647 94.454 25 47.316 54.420
8 87.452 92.386 26 44.782 52.013
9 85.241 90.304 27 42.231 49.590
10 83.015 88.206 28 39.651 47.138
11 80.774 86.092 29 37.055 44.669
12 78.516 83.962 30 34.443 42.184
13 76.234 81.806 31 31.800 39.669
14 73.934 79.635 32 29.127 37.124
15 71.618 77.446 33 26.433 34.558
16 69.276 75.232 34 23.718 31.971
17 66.917 73.000 35 20.983 29.362
18 64.541 70.752 36 18.226 26.733
INITIALS: ____________________________ STEPHEN DIXON
Lessor Lessee
* The Stipulated Loss Value or Termination Value for any unit of Equipment shall
be equal to the Capitalized Lessor's Cost of such unit multiplied by the
appropriate percentage derived from the above table. In the event that the
Lessee is for any reason extended, then the last percentage figure shown above
shall control throughout any such extended term.
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