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<PAGE>
EXHIBIT 10.21
*LEAS1998*
MASTER LEASE AGREEMENT
DATED AS OF DECEMBER 3, 2002 ("AGREEMENT")
THIS AGREEMENT is between GENERAL ELECTRIC CAPITAL CORPORATION
(together
with its successors and assigns, if any, "LESSOR") and PREDIX
PHARMACEUTICALS,
INC. ("LESSEE"). Lessor has an office at 401 Merritt 7 Suite 23,
Norwalk, CT
06851-1177. 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 10 K
Gill Street, Woburn, MA 01801. 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").
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 Lessees 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 tinder 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.
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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 as 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
made) 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 Rill 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 obligations 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 of
assessed against Lessor. Lessee shall show Lessor as 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
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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, Lessee's complete financial
statements,
certified by a recognized firm of certified public accountants
within ninety
(90) days of the close of each fiscal year of Lessee. Lessee
will deliver to
Lessor copies of Lessee's quarterly financial report certified
by the chief
financial officer of Lessee, within ninety (90) days of the
close of each fiscal
quarter of Lessee. Lessee will deliver to Lessor all Forms 10-K
and 10-Q, if
any, filed with the Securities and Exchange Commission within
thirty (30) days
after the date on which they are filed.
(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
(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 any 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.
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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 as 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.
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(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 act 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 an 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 to lease termination. Lessor shall provide
Lessee with
reasonable notice prior to any inspection. Lessee shall provide
personnel, power
and other requirements necessary to demonstrate electrical,
hydraulic and
mechanical systems for each item of Equipment.
<PAGE>
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; (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; or (x)
there is any dissolution, termination of existence, merger,
consolidation or
change in controlling ownership of Lessee or any Guarantor. The
default
declaration shall apply to all Schedules unless specifically
excepted by Lessor.
(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 penalty,
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 taking,
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 incured 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.
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(d) Any default under the terms of this or any other agreement
between
Lessor and Lessee may be declared by Lessor a default under this
and any such
other agreement.
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 eater 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 at 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 entice 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 nature 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 tort 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 is 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.
<PAGE>
(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.
<PAGE>
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.
(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.
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
<PAGE>
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 time 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.
<PAGE>
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. 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.
<PAGE>
(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.
(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".
IN WITNESS WHEREOF, Lessee and Lessor have caused this Agreement
to be
executed by their duly authorized representatives as of the date
first above
written.
<PAGE>
LESSOR: LESSEE:
GENERAL ELECTRIC CAPITAL CORPORATION PREDIX PHARMACEUTICALS,
INC.
By: /s/ JOHN EDEL By: /s/ DALE DHANOA
-----------------------------------
----------------------------
Name: John Edel Name: Dale Dhanoa
Title: Senior Vice President Title: Senior Vice President
<PAGE>
BIOTECH EQUIPMENT SCHEDULE
SCHEDULE NO. 001
DATED THIS 12/30/02
TO MASTER LEASE AGREEMENT
DATED AS OF DECEMBER 3, 2002
LESSOR & MAILING ADDRESS: LESSEE & MAILING ADDRESS:
General Electric Capital Corporation Predix Pharmaceuticals,
Inc.
401 Merritt 7 Suite 23 10 K Gill Street
Norwalk, CT 06851-1177 Woburn, MA 01801
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").
<TABLE>
<CAPTION>
NUMBER CAPITALIZED
OF UNITS LESSOR'S COST MANUFACTURER SERIAL NUMBER MODEL AND TYPE
OF EQUIPMENT
-------- ------------- ------------ -------------
---------------------------
<S> <C> <C> <C> <C>
1 $243,652.00 Varian, Inc. 310036293 Mercury Plus 400 High
Resolution Console System
</TABLE>
B. FINANCIAL TERMS
1. Advance Rent (if any): $ 6,895.35
2. Capitalized Lessor's Cost: $ 243,652.00
3. Basic Term (No. of Months): 36 MONTHS.
4. Basic Term Lease Rate Factor: 2.829999
5. Basic Term Commencement Date: 1/1/03
6. Lessee Federal Tax ID No.: 04-3585114
7. Last Delivery Date: 12/30/02
8. Daily Lease Rate Factor: .0943
9. First Termination Date: N/A (_____) 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 JANUARY 1,
2003.
11. Basic Term Rent. Commencing on 1/1/03 and on the same day of
each month
thereafter (each, a "Rent Payment Date") during the Basic Term,
Lessee
shall pay as rent ("Basic
<PAGE>
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, taking into account the 30% special
depreciation
allowance and basis adjustment under Section 168(k)(1) of the
code.
2. Recovery Period: FIVE (5) YEARS.
3. Basis: 100 % of the Capitalized Lessor's Cost.
D. PROPERTY TAX
PROPERTY TAX NOT APPLICABLE ON EQUIPMENT LOCATED IN
MASSACHUSETTS.
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 VARIAN, INC. (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.
<PAGE>
F. STIPULATED LOSS AND TERMINATION VALUE TABLE*
<TABLE>
<CAPTION>
Termination Stipulated Termination Stipulated
Rental Value Loss Value Value Loss Value
Basic Percentage Percentage Rental Percentage Percentage
------ ----------- ---------- ------ ----------- ----------
<S> <C> <C> <C> <C> <C>
1 103.586 107.493 19 65.688 69.389
2 101.835 105.731 20 63.365 67.055
3 99.964 103.849 21 61.026 64.704
4 97.981 101.854 22 58.668 62.336
5 95.978 99.840 23 56.282 59.938
6 93.956 97.806 24 53.877 57.522
7 91.914 95.753 25 51.455 55.088
8 89.847 93.674 26 49.002 52.623
9 87.760 91.576 27 46.519 50.129
10 85.653 89.458 28 44.020 47.618
11 83.520 87.313 29 41.505 45.092
12 81.367 85.148 30 38.975 42.550
13 79.193 82.963 31 36.428 39.992
14 76.992 80.751 32 33.858 37.410
15 74.764 78.511 33 31.263 34.805
16 72.520 76.255 34 28.645 32.175
17 70.259 73.983 35 26.002 29.521
18 67.982 71.695 36 23.337 26.844
</TABLE>
*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 INDEMNIFICATION Section subsection (b) of the Lease is
hereby
amended by deleting the word "and" immediately preceding "(ii)"
on the second
line thereof and inserting the following at the end thereof:
; (iii) each item of Equipment constitutes "qualified property"
pursuant
to Section 168(k) of the Internal Revenue Code of 1986, as now
and
hereafter amended (the "Code"), and is eligible for the
additional
first-year depreciation deduction equal to thirty percent (30%)
of the
Capitalized Lessor's Cost of the Equipment contemplated by the
Code; (iv)
the Equipment shall be treated as originally placed in service
not earlier
than the date of the execution and delivery of this Schedule, or
in the
event the transaction is a sale-leaseback transaction, Lessee
shall not
have placed in service the Equipment subject to this Lease at
any time
prior to three months before the execution and delivery of this
Schedule;
(v) Lessee has not arranged to purchase, and Lessor is not
purchasing the
Equipment pursuant to a binding written contract entered into
before
September 11, 2001,
<PAGE>
and (vi) each item of Equipment shall be placed in service
before January
1, 2005.
2. 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.
3. 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.
4. 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 Seller 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)
consents to the
assignment to Lessor of whatever claims and rights Lessee may
have against the
Supplier, (ii) 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 (iii)
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
<PAGE>
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.
5. 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.
6. 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
<PAGE>
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:
<PAGE>
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 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 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 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 listing 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) 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 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 (e) above. The
report shall
certify that the Equipment has been properly inspected, examined
and tested and
is operating within the manufacturer's specifications;
<PAGE>
(g) provide that all Equipment will be cleaned and cosmetically
acceptable, and
in such condition so that it may be im
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