VENCORE SOLUTIONS LLC
VENCORE SOLUTIONS LLC
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FAX:
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NUMBER
5209
LESSEE
NAME AND ADDRESS LESSOR
NAME AND ADDRESS
ISORAY
MEDICAL, INC., A DELAWARE CORPORATION VENCORE
SOLUTIONS LLC
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THIS
AGREEMENT HAS BEEN MODIFIED AT THE REQUEST OF LESSEE.
Terms
and Conditions
1.
LEASE
LINES AND LEASES.
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a.)
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Lease
Lines.
LESSOR and LESSEE hereby agree that LESSOR will acquire and lease
to
LESSEE, EQUIPMENT with an aggregate value of up to the amount specified
under “Approved
Amount of Lease Line”
on
the Lease Line Schedule attached as Exhibit A-1 to this Master
Lease
Agreement (such commitment is referred to as a “LEASE
LINE”).
From time to time, LESSOR and LESSEE may (but are under no obligation
to)
agree to establish one or more additional LEASE LINES pursuant
to which
LESSOR agrees to acquire and lease to LESSEE, EQUIPMENT with an
aggregate
value of up to the amount specified for each such LEASE LINE. For
each
LEASE LINE agreed by the parties, LESSOR and LESSEE will execute
an
additional Exhibit A to this Master Lease Agreement, and each such
Exhibit
A will be numbered sequentially (i.e., designated as Exhibit ▇-▇,
▇▇▇▇▇▇▇
▇-▇, etc.) and will incorporate the terms of this Master Lease
Agreement.
No LEASE LINE shall be established, and LESSOR shall have no liability
or
obligation under any LEASE LINE, unless and until the appropriate
Exhibit
A is executed by both LESSOR AND LESSEE.
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b.)
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Leases.
LESSOR and LESSEE agree that the terms of this Master Lease Agreement
shall apply to and be incorporated by reference in one or more
Lease
Schedules, each of which reference(s) the Master Lease Agreement
Number
indicated above. The word “LEASE”
shall mean any one of the Individual Lease Schedules executed hereunder,
each of which shall incorporate the terms and conditions of this
Master
Lease Agreement (including the terms specified on the applicable
Exhibit A
hereto, as determined below) and shall be evidenced by the original
Lease
Schedule and an attached copy of this Master Lease Agreement. The
word
“LEASES”
shall mean all of the individual Lease Schedules executed under
and
incorporating the terms of this Master Lease Agreement collectively.
The
work “EQUIPMENT”
shall mean (i) for purposes of each LEASE, the EQUIPMENT, which
is the
subject of such LEASE, as defined and described in the applicable
Lease
Schedule, and/or (ii) all of the EQUIPMENT subject to all of the
LEASES,
collectively, in each case as the context may require. Each Lease
Schedule
will include an EQUIPMENT description, the EQUIPMENT location,
the minimum
lease term and payment and security deposit information. Each LEASE
shall
be enforceable upon execution by LESSEE and subsequent counter-signature
by LESSOR indicating acceptance. By entering into each Lease Schedule,
LESSOR and LESSEE agree that (i) the transaction effected by the
Lease
Schedule constitutes a lease funding by LESSOR under the LEASE
LINE then
in effect, (ii) LESSOR’s
remaining funding obligations under the applicable LEASE LINE shall
be
reduced accordingly, and (iii) the initial lease period, the initial
rent
payment amount, the documentation fees, the security deposit payment
and
release requirements, the renewal rent payment amounts applicable
to the
LEASE shall be determined pursuant to the applicable LEASE LINE,
as
outlined on the Exhibit A to this Master Lease Agreement which
specifies a
“Date
of Lease Line Approval”
occurring on or before the date of the Lease Schedule and a “Funding
Expiration Date”
occurring after the date of acceptance of the Lease Schedule by
LESSOR,
and shall be set forth with specificity on the applicable Lease
Schedule.
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2. RENTAL
PAYMENTS.
Unless
otherwise agreed in writing, each regular periodic payment of rent due during
the term of each LEASE shall be due on either the tenth (10th)
day of
the month or the twenty-fifth(25th)
day of
the month (the “billing
date”).
The
first billing date under each LEASE where LESSEE’s
acceptance occurred after the twentieth (20th)
day of
the month and prior to the sixth (6th)
day of
the following month shall be the tenth (10th)
day of
the month immediately following LESSEE’s
acceptance of the EQUIPMENT, of, if LESSEE’s
acceptance occurs after the fifth (5th)
day of
a month and prior to the twenty-first (21st)
day of
the month, then the first billing date shall be the twenty-fifth (25th)
day of
the month that LESSEE completed its acceptance of the EQUIPMENT. On the date
of
acceptance of EQUIPMENT by LESSEE, LESSEE shall pay to LESSOR pro rated rent,
together with applicable taxes, from the date of acceptance of the EQUIPMENT
until the first billing date as interim rent. In addition, LESSEE shall pay
to
LESSOR, on demand by LESSOR, an amount equal to one thirtieth (1/30) of the
proportional monthly rental payment per day for any amount funded by LESSOR
prior to acceptance of the EQUIPMENT by LESSEE as additional interim rent.
LESSEE agrees to pay rent for the minimum term specified on the Lease Schedule,
commencing on the first billing date and continuing until the EQUIPMENT is
returned to LESSOR on expiration or earlier termination of the LEASE. Each
periodic rental installment shall be the sum set forth on the applicable
Lease
Schedule, plus any applicable sales and/or use taxes, and shall, at
LESSOR’s
option,
include a pro rata portion of that year’s
property tax. Payments shall be made by LESSEE at LESSOR’s
address
set forth herein or as otherwise directed by LESSOR. LESSEE shall not ▇▇▇▇▇,
set
off, deduct any amount or reduce any payment for any reason without the prior
written consent of LESSOR. Payments are delinquent if not in LESSOR’s
possession by the due date.
3. COMMENCEMENT
AND TERMINATION.
The
Lease term shall commence on acceptance of the EQUIPMENT by LESSEE. The LEASE
shall terminate on the expiration of its minimum term in months as set forth
in
the Lease Schedule following the first billing date and the fulfillment of
all
obligations of LESSEE thereunder or upon notice by LESSOR in the case of
LESSEE
default. In the event LESSEE retains part or all of the EQUIPMENT beyond
the
term of the LEASE, then the terms of the LEASE shall stay in effect during
such
hold-over period, subject to LESSOR’s
right
on default to terminate the LEASE.
4. NO
WARRANTIES BY LESSOR. LESSOR makes no warranty, express, implied or statutory,
as to any matter whatsoever, including, without limitation, the condition
of the
EQUIPMENT, its merchantability or its fitness for any particular purpose,
and as
to LESSOR, LESSEE leases the EQUIPMENT “AS
IS”.
5. CHOICE
OF LAW, VENUE AND JURISDICTION. The LEASE shall be deemed to have been made
and
shall be construed in accordance with the laws of the State of Oregon. Any
and
all suits or actions to enforce or for breach of the LEASE must be instituted
and maintained in Multnomah County, State of Oregon, and LESSEE expressly
agrees
to submit to personal jurisdiction in such venue.
6. ASSIGNMENT.
Without LESSOR’s
prior written consent, LESSEE shall not assign, transfer, pledge, hypothecate
or
otherwise dispose of the LEASE, any interest therein, or sublease or loan
the
EQUIPMENT or permit it to be used by anyone other than LESSEE or
LESSEE’s
qualified employees.
LESSOR
may assign the LEASE and/or grant a security interest in the EQUIPMENT, in
whole
or in part, to one or more assignees, without notice to LESSEE.
LESSOR’s
assignee(s) and/or the secured party(ies) may reassign the LEASE, and/or
such
security interest without notice to LESSEE. Each such assignee and/or secured
party shall have all rights of LESSOR under the LEASE, but no such assignee
or
secured party shall be bound to perform any obligation of LESSOR. LESSEE
shall
recognize each such assignment and shall not assert against any assignee
and/or
secured party any defense, counterclaim or setoff it may have against LESSOR.
LESSEE acknowledges that any assignment or transfer by LESSOR shall not
materially change LESSEE’s
duties
or obligations under the LEASE nor materially increase the burdens or risks
imposed on LESSEE.
7. SELECTION
AND ACCEPTANCE OF EQUIPMENT. LESSEE
has selected both the EQUIPMENT and the supplier(s) from whom LESSOR is to
purchase the EQUIPMENT. LESSEE shall arrange for transportation, delivery
and
installation of the EQUIPMENT at LESSEE’s
expense. LESSEE acknowledges that it has examined the EQUIPMENT as fully
as it
desires. If the EQUIPMENT is not properly installed, its delivery is delayed,
it
does not operate as represented by the supplier(s) or it is unsatisfactory
for
any reason, LESSEE shall make no claim on account thereof against LESSOR.
LESSEE
authorizes LESSOR to insert in the LEASE or other documents the serial numbers
and other identification information for the EQUIPMENT as determined by
LESSOR.
8. SUPPLIER/BROKER
NOT AGENT OF LESSOR.
LESSEE
understands and agrees that neither the supplier(s), nor any salesperson
or
agent of the supplier(s), is an agent of LESSOR. LESSEE further agrees that
if
any transaction hereunder is presented to LESSOR by a lease broker, that
such
broker is acting as an agent of LESSEE and is not an agent of LESSOR. No
salesperson or agent of the supplier(s) or broker(s) is authorized to waive
or
alter any term or condition of the LEASE, and no representation as to the
EQUIPMENT or any matter by the supplier(s) or broker(s) shall in any way
affect
LESSEE’s
duty to
pay rent and perform its other obligations set forth in the LEASE.
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9. SECURITY
DEPOSIT.
Security
deposits received by LESSOR are to guarantee prompt and full payment of rent
and
the faithful and timely performance of all provisions of the LEASE by LESSEE.
Security deposits secure all obligations of LESSEE to LESSOR under the LEASES
or
otherwise. Unless otherwise specified in the applicable Exhibit A to this
Master
Lease Agreement or in another instrument in writing signed by LESSOR and
LESSEE,
no interest will accrue on the security deposit to the account of LESSEE.
If
LESSEE is not in default under any agreement with LESSOR, the security deposit
shall be returned to LESSEE per the terms specified in the applicable Exhibit
A
to this Master Lease Agreement or such other instrument in writing signed
by
LESSOR and LESSEE. In the event LESSEE defaults on any of its obligations
to
LESSOR, LESSOR shall have the right, but shall not be obligated, to apply
the
security deposit to cure such default, and if so applied, LESSEE shall, within
ten (10) days, restore the security deposit to the full amount held by LESSOR
prior to any application to cure such default.
10. CANCELLATION
FOR NON-DELIVERY.
If,
by
August 31, 2005,
and
providing the LEASE has been signed by LESSEE, the EQUIPMENT has not been
delivered to and accepted by LESSEE and if LESSOR has accepted the LEASE
by
signing, LESSOR, by written notice to LESSEE, shall have the option at any
time
thereafter to terminate LESSOR’s
obligation, if any, to lease the subject EQUIPMENT to LESSEE.
11. LEASE
TERMINATION OPTIONS.
Upon
LEASE termination, and provided LESSEE is not in default, LESSEE will have
an
option to purchase all, but not less than all, of the EQUIPMENT, renew the
term
of the LEASE, or return all, but not less than all, of the EQUIPMENT to LESSOR,
as set forth below:
a) Purchase
Option.
If
LESSEE exercises the option to purchase, then provided no Event of Default
has
occurred and is then continuing, LESSEE will at the expiration of the LEASE
term, renewal term or extension, as the case may be, purchase all, but not
less
than all, of the EQUIPMENT. The purchase price shall be the
EQUIPMENT’s
then
fair market value (“FMV”)
plus
any applicable sales or other transfer tax. FMV, as applied to a purchase
option, unless otherwise defined in the Exhibit A to the Master Lease Agreement,
will be determined by LESSOR based on a price a willing buyer would pay and
a
willing seller would accept (neither buyer nor seller being compelled to
act)
for the EQUIPMENT as installed and in use, giving due consideration to its
condition, utility, revenue-producing capability, and replacement
costs.
b) Renewal.
If
LESSEE exercises the option to renew, then provided no Event of Default has
occurred and is then continuing, LESSEE will at the expiration of the LEASE
term
renew the LEASE with respect to all, but not less than all, of the EQUIPMENT
for
a period of three (3) months. Such renewal will be upon the terms of the
LEASE
and the applicable Lease Schedule and the monthly rental amount will be the
same
as the contracted monthly payment amount on the applicable Lease
Schedule.
c) Return. On
the
expiration of the LEASE, or earlier termination of the LEASE, or on LESSEE
default if LESSOR chooses, LESSEE, at its expense, freight prepaid with full
original value declared and insured, shall immediately return all, but not
less
than all, of the EQUIPMENT unencumbered to LESSOR in good repair, condition
and
working order, ordinary wear and tear resulting from proper use thereof alone
excepted, by properly packing it for shipment and delivering it to any
reasonable place designated by LESSOR. LESSEE will also pay LESSOR an amount
equal to five percent (5%) of the original invoice amount of the EQUIPMENT
specified in the applicable Lease Schedule as a restocking fee.
d) Extension/Automatic
Renewal.
In the
event LESSEE has not exercised one of the three above options within five
(5)
days after the expiration of the LEASE, the LEASE will automatically renew
and
be extended for a period of six (6) months. Payments will continue to be
paid in
advance and the first payment due under the extension will be due no later
than
ten (10) days after the expiration of the LEASE.
12. OWNERSHIP.
The
EQUIPMENT shall at all times remain the personal property of LESSOR. LESSEE
will
at all times protect and defend, at its own cost and expense, the ownership
of
LESSOR against all claims, liens and legal processes of creditors of LESSEE
and
other persons, and keep the EQUIPMENT free and clear from all such claims,
liens
and processes. If the LEASE is deemed at any time to be one intended as security
or should LESSOR agree at any time to sell the EQUIPMENT to LESSEE, LESSEE
agrees that the EQUIPMENT shall secure, in addition to the indebtedness set
forth in the LEASE, indebtedness at any time owing by LESSEE to LESSOR.
Notwithstanding any other terms and conditions of the LEASE, in the event
that
the EQUIPMENT includes computer software, LESSEE agrees that LESSOR has not
had,
does not have, nor shall have any title to such computer software. LESSEE
may
have executed or may execute a separate software license agreement(s) and
LESSEE
agrees that LESSOR is not a party to nor responsible for any performance
with
regard to such license agreement(s).
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13. LOCATION
AND RIGHT OF INSPECTION.
The
EQUIPMENT shall be kept at the location specified on the Lease Schedule or,
if
none is specified, at LESSEE’s
address
as set forth therein, and
shall not be removed from there without LESSOR’s
prior written consent.
LESSOR
shall have the right at any time during normal business hours and upon
reasonable notice to inspect the EQUIPMENT and for that purpose have access
to
the location of the EQUIPMENT.
14. USE
AND OPERATION.
LESSEE
shall use the EQUIPMENT in a careful manner and shall comply with all laws
relating to its possession, use and maintenance. LESSEE represents that the
EQUIPMENT shall be used in its business or commercial concern and that no
item
of EQUIPMENT will be used for personal, family or household
purposes.
15.
REPAIRS
AND ALTERATIONS.
LESSEE
shall at its own expense maintain the EQUIPMENT in good repair, appearance
and
functional order. LESSEE agrees to comply with all maintenance schedules
and
procedures recommended by the manufacturer of the EQUIPMENT and, if available,
purchase or otherwise enter into and adhere to dealer maintenance contracts.
LESSEE
shall not make any alterations, additions or improvements to the EQUIPMENT
without LESSOR’s
prior written consent. All alterations, additions or improvements made to
the
EQUIPMENT shall belong to LESSOR.
16. LOSS
AND DAMAGE.
LESSEE
shall bear the entire risk of loss, theft, damage or destruction of the
EQUIPMENT from any cause whatsoever and, as between LESSOR and LESSEE, unless
otherwise agreed between the parties, LESSEE shall bear that risk of loss
during
transportation and delivery, and LESSEE shall arrange and pay for transportation
and delivery. No loss, theft, damage or destruction of the EQUIPMENT shall
relieve LESSEE of the obligation to pay rent or to comply with any other
obligation under the LEASE. In the event of damage to any item of EQUIPMENT,
LESSEE shall immediately place the same in good repair at LESSEE’s
expense. If either LESSOR or LESSEE determines that any of EQUIPMENT is lost,
stolen, destroyed or damaged beyond repair, LESSEE shall, at LESSEE’s
option:
(a) replace the same with like EQUIPMENT in good repair; acceptable to LESSOR;
or (b) pay LESSOR a sum equal to (i) all amounts due by LESSEE to LESSOR
under
the LEASE up to the date of the loss, (ii) the unpaid balance of the total
rent
for the remaining term under the LEASE which is attributable to said item
of
EQUIPMENT, and (iii) an amount equal to eighteen percent (18%) of the original
cost of said item of EQUIPMENT, which the parties agree shall represent the
fair
market value of LESSOR’s
residual interest in said item of EQUIPMENT. The amounts in (ii) and (iii)
shall
be discounted to present value at a discount rate of six percent (6%) per
annum.
17. INSURANCE.
LESSEE
shall provide and maintain primary insurance against loss, theft, damage
or
destruction of the EQUIPMENT in an amount not less than the full replacement
value of the EQUIPMENT, with loss payable to LESSOR and with zero deductible.
At
LESSOR’s
request, LESSEE also shall provide and maintain primary comprehensive general
all risk liability insurance. Such insurance shall include, but shall not
be
limited to, product liability coverage, insuring LESSOR and LESSEE, with
a
severability of interest endorsement or its equivalent, against any and all
loss
or liability for all damages, either to persons, property or otherwise, which
might result from or happen in connection with the condition, use or operation
of the EQUIPMENT, with such limits and with an insurer satisfactory to LESSOR.
Each policy shall expressly provide that the insurance as to LESSOR shall
not be
invalidated by any act, omission or neglect of LESSEE and cannot be canceled
without thirty (30) days written notice to LESSOR. As to each policy, LESSEE
shall furnish to LESSOR a certificate of insurance from the insurer evidencing
the insurance coverage required by this Section. If LESSEE fails to procure
or
maintain such insurance, LESSOR shall have the right, but not be obligated,
to
obtain such insurance as to LESSOR’s
and/or
LESSEE’s
interests. In that event, LESSEE shall repay to LESSOR the cost thereof with
the
next payment of rent, together with late charges as set forth in Section
24. For
all EQUIPMENT leased by LESSOR to LESSEE, LESSEE irrevocably appoints LESSOR
as
LESSEE’s
attorney-in-fact to make claim for, receive payment of, and execute and endorse
all documents, checks or drafts received in payment for loss or damage under
such insurance policy(ies). All obligations of this Section shall extend
throughout the term of the LEASE and until the EQUIPMENT is returned to
LESSOR.
18. LIENS
AND TAXES.
LESSEE
shall keep the EQUIPMENT free and clear of all levies, liens and encumbrances.
LESSEE shall pay LESSOR, on or before the due date, all charges and taxes,
local, state or federal, which may now or hereafter be imposed upon the
ownership, leasing, rental, sale, purchase, possession or use of the EQUIPMENT,
excluding, however, all taxes on the LESSOR’s
income.
If LESSEE fails to pay said charges or taxes to LESSOR when due, LESSOR shall
have the right, but shall not be obligated, to pay said charges or taxes,
and
add the same to the next payment of rent, together with late charges as set
out
in Section 24. LESSEE agrees to pay a reasonable fee to LESSOR for the
processing of property tax payments.
19. INDEMNITY.
LESSEE
shall indemnify LESSOR against, and hold LESSOR harmless from, any and all
claims, actions, proceedings, expenses, damages and liabilities, including
attorney fees, arising in connection with the EQUIPMENT, including, without
limitation, its manufacture, selection, purchase, delivery, possession, use,
operation or return and the recovery of claims under insurance policies thereon.
This indemnity provision shall survive termination, cancellation or breach
of
the LEASE.
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20. MISCELLANEOUS
REPRESENTATION OF LESSEE.
LESSEE
and any guarantor of the LEASES shall provide LESSOR with such corporate
resolutions, financial statements, and all other documents regarding the
financial or credit condition of LESSEE or any guarantor, which LESSOR may
request from time to time. LESSEE represents and warrants that all credit
and
financial information submitted to LESSOR in connection with the LEASES is
materially true and correct in all respects. LESSEE agrees that LESSOR and/or
its assigns may at any time investigate the credit-worthiness of LESSEE using
all available means.
21. FINANCIAL
STATEMENTS AND FIXED ASSET LISTS.
So long
as any monies are owed by LESSEE to LESSOR under the terms of any LEASE,
and/or
until all terms under each LEASE have been fulfilled, LESSEE will provide
LESSOR
with financial statements on a monthly basis and will provide LESSOR with
fixed
asset lists on a quarterly basis. LESSEE represents and warrants that all
credit
and financial information submitted to LESSOR in connection with the LEASE
is
materially true and correct in all aspects.
22. UNIFORM
PERSONAL PROPERTY LEASING ACT. To
the
extent permitted by applicable law, and to the extent the LEASE is governed
by
the law of a jurisdiction which has adopted a version of the Uniform Personal
Property Leasing Act (also known as “Uniform
Commercial Code -
Leases”),
the
parties hereto agree that: (1) the provisions thereof conferring remedies
upon a
LESSEE or imposing obligations upon a LESSOR shall not apply to the LEASE,
its
interpretation, or its enforcement; and (2) each LEASE is a Finance Lease
as
defined by Uniform Commercial Code -
Section
2A -
103(g).
LESSEE acknowledges that LESSEE has reviewed and approved any written Supply
Contract(s) covering the EQUIPMENT purchased from the Supplier(s) for lease
to
LESSEE. LESSEE further acknowledges that LESSOR has informed or advised LESSEE,
in writing, either previously or in the LEASE, of the following: (a) the
identity of the Supplier(s); (b) that the LESSEE may have rights under the
Supply Contract(s); and (c) that the LESSEE may contact the Supplier(s) for
a
description of any such rights LESSEE may have under the Supply
Contract(s).
23. FINANCING
STATEMENTS.
At the
request of LESSOR, LESSEE will join LESSOR in executing financing statements
pursuant to the Uniform Commercial Code. For any and all EQUIPMENT leased
by
LESSOR to LESSEE, LESSEE hereby authorizes LESSOR or its agents or assigns
to
execute financing statements on LESSEE’s
behalf,
and to file such financing statements in all jurisdictions where such execution
and filing is permitted. It is agreed that a carbon or photocopy of any
financing statement may be filed in place of the original and that a copy
hereof
may be filed as a financing statement.
24. LATE
CHARGES AND INTEREST.
If
LESSEE fails to pay LESSOR any amount when due or, in the case of an amount
due
to one other than LESSOR, if LESSOR pays an amount on LESSEE’s
behalf,
then LESSEE shall pay LESSOR a late charge of five percent (5%) of such amount
for each calendar month or part thereof for which rent or other sum shall
be
delinquent or shall have been paid by LESSOR on LESSEE’s
behalf.
LESSEE also agrees to pay LESSOR the sum of thirty-five dollars ($35.00)
for
each check of LESSEE’s
returned uncollectible by LESSEE’s
bank.
The amount of any charges assessed hereunder shall be added to and become
part
of the next rental payment or shall be separately invoiced, at
LESSOR’s
option.
Interest shall accrue on any unpaid or unreimbursed amounts at the maximum
rate
allowable by law or eighteen percent (18%), whichever is less, from the due
date
until paid by LESSEE.
25. TIME
IS OF THE ESSENCE.
Time is
of the essence of the LEASE. This provision shall not be waived by the
acceptance on occasion of late or defective performance.
26. DEFAULT.
LESSEE
shall be in default if (a) LESSEE shall fail to pay rent or any other amount
provided for under the LEASE within ten (10) days after the same becomes
due and
payable; or (b) LESSEE fails to observe, keep or perform any other provision
of
the LEASE or of any other agreement with LESSOR, and such failure shall continue
for a period of ten (10) days; or (c) LESSEE shall abandon the EQUIPMENT;
or (d)
except as inconsistent with Federal Bankruptcy Law, any proceeding in
bankruptcy, receivership or insolvency shall be commenced against LESSEE
or its
property or any guarantor or such guarantor’s
property, LESSEE or any guarantor files voluntarily for bankruptcy or
reorganization, or LESSEE or any guarantor makes an assignment for the benefit
of its creditors; or (e) LESSEE or any guarantor makes any material
misrepresentation or materially false statement as to its credit or financial
standing in connection with the execution or the further performance of the
LEASE; or (f) any attachment or execution be levied on any of LESSEE’s
property; or (g) LESSEE permits any other entity or person to use the EQUIPMENT
without the prior written consent of LESSOR; or (h) in the business and affairs
of LESSEE or any guarantor there occurs a material change which shall impair
the
security of the EQUIPMENT or increase LESSOR’s
credit
risk involved in the LEASE; or (i) LESSEE moves any EQUIPMENT under LEASE
to any
location outside of the United States and/or moves any EQUIPMENT under LEASE
to
any other location not previously authorized in writing by LESSOR.
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27.
REMEDIES.
In the
event of LESSEE default, LESSOR shall have the right and option, but shall
not
be obligated, to exercise any one or more of the following remedies, which
remedies or any of them may be exercised by LESSOR without notice to LESSEE
and
without any election of remedies by LESSOR and, if the obligations of LESSEE
are
guaranteed by a guarantor or guarantors, LESSOR shall not be obligated to
proceed against any such guarantor or guarantors before resorting to its
remedies against LESSEE under the LEASE: (a) to the extent permitted under
applicable law, LESSOR and/or its agents may, without notice or legal process,
enter onto any premises of or under control of LESSEE or any agent of LESSEE
where the EQUIPMENT may be or is believed to be located and repossess the
EQUIPMENT, disconnecting and separating all thereof from any other property,
using all means necessary or permitted by law, LESSEE hereby expressly waiving
any right of action of any kind whatsoever against LESSOR arising out of
such
access to or removal, repossession or retention of the EQUIPMENT; (b) LESSOR
may
declare all sums due and to become due under the LEASE immediately due and
payable and institute litigation to collect the same; (c) LESSOR may institute
litigation to collect all rents and other amounts due as of the date of such
default together with any sums that may accrue up to the date of trial; (d)
LESSOR may institute litigation to specifically enforce the terms of the
LEASE;
(e) LESSOR may terminate the LEASE; (f) LESSOR may require LESSEE to return
the
EQUIPMENT pursuant to Section 11; and/or (g) LESSOR may pursue any other
remedy
now, or hereafter, existing in law or equity. However, damages for any future
rentals and/or LESSOR’s
residual value in the EQUIPMENT shall be discounted to present value at a
discount rate equal to six percent (6%) per annum. In the event of any default
by LESSEE under the LEASE, LESSOR may at its sole discretion, although it
shall
not be obligated to do so, sell the EQUIPMENT at a private or public, cash
or
credit sale, or may re-let the EQUIPMENT for a term and a rental which may
be
equal to, greater than, or less than provided in the LEASE. Any proceeds
of sale
or any rental payments received under the new lease, less LESSOR’s
expenses of taking possession, reasonable attorney fees and/or collection
fees,
storage and/or reconditioning costs, the costs of sale or re-letting, and
less
LESSOR’s
FMV
residual in the EQUIPMENT, shall be applied to LESSEE’s
obligations under the LEASE, and LESSEE shall remain liable for the balance.
LESSEE’s
liability shall not be reduced by reason of any failure of LESSOR to see
or
re-let.
28. EXPENSES
OF ENFORCEMENT, ATTORNEY FEES.
In the
event of any default, LESSEE shall pay LESSOR a sum equal to all expenses,
including attorney fees, if any, incurred by LESSOR in connection with the
enforcement of any of LESSOR’s
remedies and all expenses of repossessing, storing, repairing, and selling
or
re-letting the EQUIPMENT together with interest on such amount at the maximum
rate allowable by law or eighteen percent (18%), whichever is less, from
the
date such amount is paid by LESSOR. In the event litigation is instituted
to
enforce any of the terms of the LEASE, the prevailing party shall be entitled
to
recover from the other party such sum as the court may judge reasonable as
attorney fees at trial and upon appeal, in addition to all other sums provided
for by law.
29. SUCCESSOR
INTERESTS.
Subject
to any prohibition against assignment contained herein, each LEASE shall
be
binding upon and inure to the benefit of the heirs, successors and assigns
of
the parties. As used in each LEASE, the term “LESSOR”
shall
include any assignee or secured party of LESSOR where appropriate.
30.
MULTIPLE
LESSEES.
If more
than one LESSEE is named herein, the reference to LESSEE refers to each and
the
liability of each shall be joint and several.
31. NOTICES.
Any
written notice or demand under the LEASE may be given to a party by mail
at its
address set forth on the LEASE Schedule or at such address as the party may
provide in writing from time to time. Notice and demand so made shall be
effective when deposited in the United States mail duly addressed with postage
prepaid.
32. WAIVER.
Failure
of LESSOR at any time to require performance of any provision of the LEASE
shall
not limit any right of LESSOR to enforce that provision, nor shall any waiver
by
LESSOR of any breach of any provision be a waiver of any succeeding breach
of
that provision or a waiver of that provision itself or any other provision.
33. NUMBER
AND CAPTIONS.
As used
herein, the singular shall include the plural, and the plural the singular.
All
captions used herein are intended solely for convenience of reference and
shall
in no way limit or explain any of the provisions of the LEASE.
34. DUPLICATE
ENFORCEABLE AS ORIGINAL.
LESSEE
hereby consents to the use of each original Lease Schedule, along with a
photocopy of the fully executed Master Lease Agreement, for all purposes
including, but not limited to, evidence the applicable LEASE in litigation
or
any other judicial proceeding.
35. SEVERABILITY.
If any
provision of the LEASE is held invalid, such invalidity shall not affect
other
provisions, which can be given effect without the invalid
provision.
///
///
Master
Lease Agreement
Page
6 of
7
Confidential
X
/s/
(REG)
36. ENTIRE
AGREEMENT. This Master Lease Agreement and each Lease Schedule, represent
the
entire, final and complete agreement of the parties pertaining to the lease
of
the EQUIPMENT under such LEASE and supersedes or replaces all written and
oral
agreements heretofore made or existing by and between the parties or their
representatives insofar as the lease of the EQUIPMENT is concerned, and no
modification or addition to the LEASE shall be binding unless agreed by a
corporate officer, against whom enforcement is sought.
PLEASE
REQUEST ANY CHANGES
LESSEE
ACKNOWLEDGES THAT IT HAS READ AND UNDERSTANDS ALL OF THE TERMS AND CONDITIONS
CONTAINED IN THIS MASTER LEASE AGREEMENT AND THAT THESE TERMS AND CONDITIONS
SHALL GOVERN EACH LEASE ENTERED INTO BY THE PARTIES.
LESSOR
Date ______________ LESSEE
Date X
5-7-05
VENCORE
SOLUTIONS LLC ISORAY
MEDICAL,
INC.,
A
DELAWARE CORPORATION
FULL LEGAL NAME OF LESSEE
BY:
/s/
▇▇▇▇▇
▇▇▇▇▇▇
BY:
X
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇ CEO & Chairman
▇▇▇▇▇
▇▇▇▇▇▇ (Title)
THIS
MASTER LEASE AGREEMENT WILL NOT BIND BY:
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇ CEO/Chairman
LESSOR
OR
BECOME EFFECTIVE UNTIL AND UNLESS
(Title)
LESSOR
ACCEPTS IT BY SIGNING ABOVE. BY:
X /s/
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Witness (Title)
X ▇▇▇▇▇
▇. ▇▇▇▇▇▇
PRINT
NAME OF WITNESS
Master
Lease Agreement
Page
7 of
7
Confidential
X
/s/
(REG)
VENCORE
SOLUTIONS LLC
VENCORE
SOLUTIONS LLC
▇▇▇▇
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▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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◊
FAX:
▇▇▇.▇▇▇.▇▇▇▇
EXHIBIT
A -
1
TO
MASTER
LEASE AGREEMENT NUMBER
5209
LESSEE
NAME AND ADDRESS LESSOR
NAME AND ADDRESS
ISORAY
MEDICAL, INC., A DELAWARE CORPORATION
VENCORE
SOLUTIONS LLC
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇▇
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▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
|
Date
of Lease of Line Approval:
|
April
18, 2005
|
|
|
Funding
Expiration Date:
|
July
31, 2005
|
|
|
Approved
Amount of Lease Line:
|
$430,000.00
|
|
|
Minimum
Funding Amount:
|
$25,000.00
|
|
|
Initial
Monthly Rent Factor:
|
1.765%,
payable in advance for the first 5 payments.
|
|
|
3.70%,
payable in advance for the remaining 31 payments.
|
Per
each
0.25% decrease or increase in the Prime Lending Rate, as published in the
Wall
Street Journal, the Monthly Rent Factor will decrease or increase by 0.007%
respectively. At no time will the Monthly Rent Factor decrease or increase
by
more than 0.028% from the Initial Monthly Rent Factor. The Monthly Rent Factor
for each Lease Schedule will be fixed at the time it is executed.
|
Prime
Lending Rate:
|
5.75%
(Effective March 31, 2005)
|
|
|
Initial
Lease Term:
|
36
Months
|
|
|
Advance
Payments:
|
Lessee
will pay Lessor the first payment at the time each individual
Lease
|
|
|
Schedule
is executed.
|
||
|
Documentation
Fees:
|
0.50%
of the total equipment invoice amount included on the individual
Lease
|
|
|
Schedule,
or $250.00, whichever is greater.
|
||
|
Security
Deposit Percentage:
|
15%
per each individual Lease Schedule, to be paid at the time each
individual
Lease Schedule is executed.
|
|
|
Security
Deposit Amount:
|
$64,500.00
(based on Approved Amount of Lease Line)
|
|
|
Security
Deposit Releases:
|
Before
releasing Security Deposits at Lease end the following three
conditions
|
|
|
must
exist: 1) Lessor must be in receipt of Lessee’s
financial statements (Income/Profit & Loss Statement, Balance
Sheet,
|
Confidential Page
1 of
2 X
/s/
(REG)
Cash
Flow
Statement and Fixed Asset List) that are no more than 30 days old; 2) Lessee
must demonstrate that they have cash reserves to service their debt for at
least
the subsequent six months; and 3) all payments must have been paid as agreed
and
all Lease Schedules must be current.
Minimum
Renewal Rent Factor: 3.70%
for
a minimum of three months.
Eligible
Equipment: Premier
Technology Hot Cell. Up to 10% of the Approved Amount of the Lease line may
be
compromised of Soft Costs (“SOFT”)
where
SOFT will include, but not be limited to, delivery costs, design and engineering
costs, extended warranties, installation costs, labor, leasehold improvements,
maintenance and upgrade contracts, sales tax, software, trade show booths,
training, and upgrades to any equipment in which Lessor does not hold a security
interest. For any given Lease Schedule, SOFT shall not exceed 10% of the
scheduled amount. No equipment may be shipped to and/or located at a co-location
facility or any facility other than Lessee’s
principal place of business, unless the co-location facility first provides
a
Lessor with a waiver acknowledging Lessor’s
ownership of the equipment. All equipment to be leased must be approved by
Lessor.
Early
Termination Option: Lessee
may terminate the Lease Schedules early providing: i) all payments on all
Lease
Schedules are current at the time a Lease Schedule is terminated early, or
ii)
all Lease Schedules are terminated early and at the same time. Upon early
termination, Lessee will be required to pay: i) all amounts due by Lessee
to
Lessor under the Lease up to the date of the early termination, ii) the unpaid
balance of the total rent for the remaining term discounted to present value
at
a discount rate of six percent (6%) per annum. Upon Early Termination, Lessee
will be subject to the Lease Termination Options from Paragraph 11 found
in the
Master Lease Agreement. The FMV shall not exceed 15% of the original Lease
Amount. Lessee shall be responsible for any and all taxes which are due at
the
termination of each Lease Schedule.
End
of Lease Options: Fair
Market Value (“FMV”)
shall
not exceed 15% of the Equipment cost on each individual Lease
Schedule.
Condition
Precedent to Funding: Prior
to
funding any Lease Schedules or issuing any Purchase Orders, Lessee must issue
to
Lessor a Warrant to Purchase Shares of Common Stock equivalent to 6,757 Shares
of Common Stock at $3.50 per Share with an expiration date of four (4) years
from its Date of Issuance in a form acceptable to Lessor.
The
terms
and information set forth above are a part of the Master
Lease Agreement Number 5209,
entered
into by and between VenCore Solutions LLC (“Lessor”)
and the
Lessee set forth above.
The
undersigned representative of Lessee affirms that he or she has read and
understands this Exhibit A -
1 to
Master Lease Agreement Number 5209 and is duly authorized to execute this
Exhibit A -
1 on
behalf of the Lessee, and that, if Lessee is a corporation, this Exhibit
A
-
1 is
entered into with consent of Lessee’s
Board
of Directors and stockholders, if so required.
LESSOR:
LESSEE:
VENCORE
SOLUTIONS LLC ISORAY
MEDICAL, INC.,
A
DELAWARE
CORPORATION
By:
/s/ ▇▇▇▇▇
▇▇▇▇▇▇
By:
X
/s/
▇▇▇▇▇ ▇▇▇▇▇▇
Name:
▇▇▇▇▇ ▇▇▇▇▇▇
Name:
▇▇▇▇▇
▇▇▇▇▇▇
Title:
Managing
Director
Title:
CEO
& CHAIRMAN
Date:
_______________________________ Date:
X
5-7-05
Confidential Page
2 of
2 X
/s/
(REG)
VENCORE
SOLUTIONS LLC
VENCORE
SOLUTIONS LLC
▇▇▇▇
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▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇.▇▇▇.▇▇▇▇
◊
FAX:
▇▇▇.▇▇▇.▇▇▇▇
EXHIBIT
B
TO
MASTER
LEASE AGREEMENT NUMBER
5209
LESSEE
NAME AND ADDRESS LESSOR
NAME AND ADDRESS
|
ISORAY
MEDICAL, INC., A DELAWARE CORPORATION
|
VENCORE
SOLUTIONS LLC
|
|
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
|
▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇
|
|
▇▇▇▇▇
▇▇▇
|
▇▇▇▇▇
▇▇▇
|
|
▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
|
The
undersigned acknowledges that it is the Lessee pursuant to the above-referenced
Lease and has read the terms thereof, and specifically fully understands
Section
7 -
SELECTION AND ACCEPTANCE OF EQUIPMENT, Section 15 -
REPAIRS AND ALTERATIONS and Section 16 -
LOSS AND DAMAGE.
The
undersigned further acknowledges and expressly understands that Lessor, VENCORE
SOLUTIONS LLC (hereinafter “VENCORE”),
is in
no way responsible for the availability, delivery, installation, service,
maintenance or repair of any of the equipment described in the Lease. The
undersigned agrees that failure of the supplier or the installer of said
equipment to deliver or install it, or failure of the equipment to perform
properly or failure of the supplier and/or installer of said equipment to
render
service and/or make necessary repairs shall not be deemed grounds for nonpayment
of any rental payments, nor for non-performance of any term and/or condition
of
the Lease whatsoever.
The
undersigned further acknowledges and it is expressly understood that any
agreement for the availability, installation, service, maintenance or repair
of
said equipment is strictly between the supplier and the undersigned and that
VENCORE shall be held harmless by the undersigned for any loss whatsoever
which
may be occasioned by any problem with the availability, installation, service,
maintenance or repair of said equipment or from any claim of any nature made
by
the undersigned or any other party.
The
undersigned agrees that even though the equipment included in the Lease has
not
been either delivered nor installed, the undersigned shall begin and continue
to
make payments required by the terms of the Lease as if the equipment had
been
delivered and installed on the date thereof. The undersigned further
acknowledges that VENCORE has made no representations nor warranties regarding
when, if ever, said equipment is to be delivered or installed.
THE
UNDERSIGNED HEREBY ACKNOWLEDGES THAT THE ABOVE HAS BEEN READ AND THAT A
COMPLETED, LEGIBLE COPY OF THE SAME HAS BEEN RECEIVED.
| LESSEE: | LESSOR: |
| ISORAY MEDICAL, INC., | VENCORE SOLUTIONS LLC |
| A DELAWARE CORPORATION | |
|
By:
X
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
|
By:
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
|
|
▇▇▇▇▇
▇▇▇▇▇▇
|
|
|
Title:
CEO
& CHAIRMAN
|
Title:
Managing Director
|
|
Date
x 5-7-05
|
Date:
______________
|
SECURITY
AGREEMENT
It
is
hereby agreed this X
7
day
of
X
May
20X05,
by and
between IsoRay, Inc., a Delaware Corporation of ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (“Debtor”)
and
VENCORE SOLUTIONS LLC of ▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(“Secured
Party”):
1. To
secure
the payment, with interest thereon, and the performance and fulfillment of
all
Obligations (as hereinafter defined) of Debtor to Secured Party, Debtor hereby
grants a Secured Party a security interest in all equipment of every kind
and
nature, together with all contents, attachments, proceeds, products and
replacements thereof and substitutions and accessions thereto (hereinafter
collectively called “Property”),
wherever located, now or hereafter belonging to Debtor. Specifically
excluded from this Security Agreement will be any equipment financed or leased
by another financial institution (“Creditor”)
wherein a contract for the financing of such equipment exists between Creditor
and Debtor and wherein Creditor has perfected Creditor’s
lien interest in such equipment by the recording of a UCC Financing Statement
in
Debtor’s
state of incorporation.
2. The
term
“Obligations”
as used
herein shall mean and include any and all contract or account payables, leases,
loans, advances, payments, extensions of credit, endorsements, guaranties,
benefits, and financial accommodations heretofore and hereafter made, granted,
or extended by Secured Party to Debtor or which Secured Party has or will
become
obligated to make, grant or extend to or for the account of Debtor; any and
all
interest, commissions, obligations, liabilities, indebtedness, charges, and
expenses heretofore and hereafter chargeable against Debtor by Secured Party
or
owing by Debtor to Secured Party or upon which Debtor may be or have become
liable as endorser or guarantor; any and all renewals or extensions of any
of
the foregoing, no matter how or when arising and whether under any present
or
future agreement or instrument between Debtor and Secured party or otherwise,
and the amount due upon any notes or other instruments or documents given
to or
received by Secured Party for or on account of the foregoing; and the
performance and fulfillment by Debtor of all the terms, conditions, promises,
covenants, provisions, and warranties contained in the Agreement and in any
note, instrument, or document secured hereby and in any present or future
agreement or instrument between Debtor and Secured Party.
3. Debtor
covenants and warrants to Secured Party that:
a)
Debtor
is the lawful owner of the Property and has the sole right and lawful authority
to make this Agreement; the Property and every part thereof is free and clear
of
all liens and encumbrances of every kind and description (except any held
by
Secured Party); and Debtor will warrant and defend the Property against all
claims and demands of all persons. Secured Party is hereby authorized to
file
one or more financing statements, signed only by Secured Party, and/or a
reproduction hereof as a financing statement in order to perfect its security
interest.
b)
Debtor
will keep the Property free and clear of all attachments, levies, taxes,
and
lien encumbrances of every kind, nature, and description; Debtor, at its
own
cost and expense, will maintain and keep the Property in a good state of
repair;
and Debtor will not sell, assign, mortgage, lease, pledge, or otherwise dispose
of the Property or any interest therein without the prior written consent
of
Secured Party.
c.)
Debtor will insure the Property in the name of Secured Party or its assignee
against loss or damage by fire and extended coverage perils, burglary and
pilferage, in amounts and under policies acceptable to Secured Party, the
proceeds to be payable to Secured Party or assignee. All premiums thereon
shall
be paid by Debtor. Debtor hereby irrevocably appoints Secured Party as
Debtor’s
Attorney-in-Fact to make claim for, receive payment of, and execute and endorse
all documents, checks, or drafts received in payment for any loss or damage
under any of said insurance policies.
d)
The
Obligations are undertaken for commercial purposes only and the Property
is in
the possession of Debtor at is principal place of business, or, if not, at
a
location which has been agreed to by Secured Party prior to the execution
hereof. Debtor will not remove the Property from said location without prior
written consent of Secured Party, nor change its present business location(s)
or
name(s) without at least thirty days prior written notice to Secured Party.
At
all times, Debtor will allow Secured Party or its representatives free access
to
and right of inspection of the Property. At Secured Party’s
request, Debtor shall furnish its current financial statements to Secured
Party.
/s/
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Confidential Page
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3
e)
Debtor
shall comply (so far as may be necessary to protect the Property and the
lien of
this Agreement thereon) with all of the terms and conditions of leases,
mortgages, or deeds of trust covering the premises where the Property, or
any
portion thereof is located. Debtor shall also comply with any orders,
ordinances, laws, or statutes of any city, state, or other governmental entity
having jurisdiction with respect to the premises or the conduct of business
thereon.
4. Debtor
shall be in default upon occurrence of any of the following (hereinafter
referred to as “Event
of
Default”):
a)
Debtor
shall cease doing business, shall become insolvent, or make an assignment
for
the benefit of creditors;
b)
Bankruptcy proceedings or proceedings for arrangement or reorganization under
any Bankruptcy Act or proceeding for the appointment of a receiver, trustee,
liquidator, or custodian for Debtor of any of Debtor’s
property shall be commenced by or against Debtor;
c)
Debtor
shall fail punctually and faithfully to fulfill, observe, or perform any
of the
Obligations; or
d)
Any of
the warranties, covenants, or representations made to Secured Party by Debtor
are to become untrue or incorrect in any adverse respect, or if there shall
be a
substantial change in the management, ownership, or control of
Debtor.
5. If
Debtor
shall be in default hereunder, Secured Party shall have the right to pursue
any
other remedy now, or hereafter, existing in law or equity, without prior
notice
or demand, and specifically may enforce any one or more of the following
remedies, successively, alternately, or concurrently, without waving its
right
to enforce any other remedy or any Obligation according to its
terms:
a)
To the
extent Debtor has failed to perform or fulfill an Obligation, Secured Party
may
perform or fulfill the same, or cause the performance of fulfillment thereof.
The costs and expenses of performance or fulfillment, including reasonable
attorney fees, shall be a lien on the Property, added to the amount of the
Obligations, and payable on demand.
b)
Secured Party may take possession of the Property wherever it may be, and
enter
any of the premises of Debtor with or without process of law, and search
for,
take possession of, remove, or keep and store the same in said premises,
without
liability for trespass nor charge for storage of the Property, until sold.
Debtor expressly waives any right to notice or hearing in any action to recover
possession of any or all of the Property.
c)
Secured Party may sell the Property or any part thereof and all of
Debtor’s
equity
of redemption therein, if any, at public or private sale, without notice
or
advertisement (such notice or advertisement being expressly waived by Debtor),
for cash or on credit, and on such terms as Secured Party may in its sole
discretion elect. The proceeds of any sale shall be applied first to pay
all
costs, expenses, and changes for repossessing, storing, repairing, selling
and/or leasing the Property, including attorney fees, and second to the payment,
partly or entirely, of the Obligations at Secured Party may in its sole
discretion elect. Debtor shall remain liable to Secured Party for any
deficiency.
d)
Secured Party may, upon filing suit to enforce or preserve its rights under
this
Agreement or at any time while such suit is pending, apply for and secure
the
appointment of a receiver to take possession of and operate and manage
Debtor’s
business or the Property and the income, rents, and proceeds therefrom. The
receiver may be an employee of Secured Party. Debtor hereby expressly waives
the
requirement that Secured Party or the receiver post bond upon the appointment
of
such receiver.
e)
Secured Party may appropriate and apply toward the payment of the Obligations
any and all balances, sums, property, credits, deposits, accounts, reserves,
collections, drafts, notes, or checks in or coming into Secured
Party’s
possession and belonging or owing to Debtor. For such purposes, Secured Party
may endorse the name of Debtor on any such instrument made payable to Debtor
for
deposit, discount, or collection.
6. Debtor
will indemnify and save Secured Party harmless from all loss, damage, liability,
and expense, including reasonable attorney fees, that Secured Party may sustain
or incur to obtain or enforce payment, performance, or fulfillment of any
of the
Obligations; in the enforcement or foreclosure of this Agreement; or in the
prosecution or defense of any action or proceeding either against Debtor
or
against Secured Party concerning any matter growing out of or connected with
this Agreement and/or any of the Obligations or Property.
Confidential Page
2 of
3
7. This
Agreement cannot be changed or terminated orally. With respect to Secured
Party,
only in writing, signed by an officer of Secured Party, shall be effective
to
change, modify, waive, or terminate any of the Obligations, this Agreement,
or
any other agreement between Debtor and Secured Party. If Debtor is in default
hereunder, and Secured Party fails to demand full payment, performance, or
fulfillment hereunder or fails to otherwise exercise any right, privilege,
remedy or option available to Secured Party, such shall not be deemed a waiver
of any right of Secured Party. The acceptance by Secured Party of any payments
subsequent to such default shall not be deemed a waiver of any rights of
Secured
Party.
8. This
Agreement may be assigned by Secured Party along with any and all Obligations
without notice to Debtor. Upon such assignment, Debtor agrees not to assert
against any assignee any defense, set-off, recoupment, claim, counterclaim,
or
cross-complaint which Debtor may have against Secured Party, whether arising
hereunder or otherwise. All rights, remedies, options, privileges, and elections
given to Secured Party hereunder or otherwise inure to the benefit of Secured
Party or any assignee, and their respective successors and assigns. Debtor
may
not transfer, pledge, or assign its interests and obligations hereunder without
the prior written approval of Secured Party.
9. This
Agreement shall not adversely affect any rights of Secured Party under any
other
security agreement. This Agreement shall not be construed as a waiver of
any of
the terms and provisions of any other agreement, guaranty, or endorsement,
all
of which remain and continue in full force and effect.
10. Any
notices given or required hereunder shall be in writing, and shall be delivered
in person or shall be mailed to a party at its last known address. Reasonable
notification hereunder shall be any notification given or sent at least five
(5)
days prior to the event for which such notification is sent.
11. If
Debtor
shall be in default hereunder, Debtor shall pay Secured Party a sum equal
to all
expenses, including attorney fees, if any, incurred by Secured Party in
connection with the enforcement of any of Secured Party’s
remedies, together with all expenses of repossessing, storing, repairing
and
selling and/or leasing the Property. If litigation is instituted to enforce
any
of the terms of this Agreement, the prevailing party shall be entitled to
recover such sum as the court may judge reasonable as attorney fees and costs
of
litigation, trial, and appeal, in addition to all other sums provided for
by
law.
12. It
is
intended that each and every provision of this Agreement be fully effective
and
enforceable according to its terms. If, however, any one or more provisions
hereof are in conflict with any statute or law and therefore are not valid
or
enforceable, then each such provision shall be deemed null and void, but
to the
extent of such conflict only and without invalidating or affecting the remaining
provisions hereof.
13. The
Agreement shall be deemed to have been made and shall be construed and enforced
in accordance with the laws of the State of Oregon. Any and all suits or
actions
for any and every breach hereof shall be instituted and maintained in Multnomah
County, Oregon.
IN
WITNESS WHEREOF, this Agreement has been executed effective the date first
above-written.
|
SECURED
PARTY: DEBTOR
|
ISORAY MEDICAL, INC., | |
| VENCORE SOLUTIONS LLC | A DELAWARE CORPORATION | |
|
By:
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
|
By:
X
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
|
|
|
▇▇▇▇▇
▇▇▇▇▇▇
|
||
|
Title:
Managing Director
|
Title:
CEO & CHAIRMAN
|
|
|
Date:_____________________________
|
Date:
X
5-07-05
|
Confidential Page
3 of
3
VENCORE
SOLUTIONS LLC
Financial
Services and Emerging Growth Companies Coming Together
VENCORE
SOLUTIONS LLC
▇▇▇▇
▇▇
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇
▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇.▇▇▇.▇▇▇▇
◊
FAX:
▇▇▇.▇▇▇.▇▇▇▇
MASTER
LEASE AGREEMENT NUMBER 5209
CONTINUING
CORPORATE RESOLUTION AUTHORIZING LEASES
Resolution
of the Board of Directors of IsoRay Medical, Inc., a Delaware Corporation,
(the
“Corporation”).
Recitals
WHEREAS,
the jurisdiction of the Corporation’s
incorporation empowers Corporation to lease real and personal property; and
WHEREAS,
the jurisdiction of the Corporation’s
incorporation expressly provides that the powers of the Corporation are to
be
exercised by its Board of Directors, subject to certain limitations;
and
WHEREAS,
the Board of Directors of the Corporation deems it to be in the best interests
of the Corporation and its shareholders to enter into a Master Lease Agreement
and one or more Lease Schedules thereunder with VENCORE SOLUTIONS LLC (the
“LESSOR”),
whether now or hereafter, for the lease of certain personal property described
in each such Lease Schedule.
Resolutions
NOW
THEREFORE, IT IS RESOLVED, that the Corporation enter into the Master Lease
Agreement and one or more Lease Schedules thereunder, for the lease of certain
personal property described in the Lease Schedules on the terms and conditions
set forth in the Master Lease Agreement and the Lease Schedules, and that
the
Corporation consents to the use of original Lease Schedules, along with a
photocopy of the fully executed Master Lease Agreement, and photocopies of
the
related documents (including this Corporate Resolution Authorizing Leases),
for
all purposes including, but not limited to, evidence in litigation or any
other
judicial proceeding; and it is further
RESOLVED,
that any of this Corporation’s
officers, referenced below, are authorized and directed to execute and deliver
the Master Lease Agreement, the Lease Schedules, and any other related
documents; and it is further
RESOLVED,
that any of this Corporation’s
officers, referenced below, are authorized to appoint an alternative employee
or
agent of the Corporation, via telephonic or other communication with LESSOR,
to
provide verbal verification of delivery and acceptance of equipment under
the
Master Lease Agreement and Lease Schedules. Such appointment and subsequent
verification and acceptance shall be binding upon the Corporation. In addition
to these officers, X___________________, who is the X___________________
of this
Corporation, is also hereby appointed to provide this verification.
I
certify
that the persons whose names, titles and signatures appear below are duly
elected (or appointed), qualified and acting officer(s), employee(s) or agent(s)
of the Corporation and hold on the date of this certificate the office or
position set forth, opposite their respective names, and the signatures
appearing opposite their respective names are the genuine signatures of such
officer(s), employee(s), or agent(s).
|
NAME
|
TITLE
OR POSITION
|
SIGNATURE
|
||
|
▇▇▇▇▇
▇▇▇▇▇▇
|
CEO
& CHAIRMAN
|
X
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
|
||
CERTIFICATE
I,
▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇ certify:
That
I am
the duly elected and acting Secretary of IsoRay Medical, Inc., a Delaware
Corporation;
That
the
foregoing Corporate Resolution Authorizing Leases was duly adopted by the
Board
of Directors in conformity with the Articles of Incorporation and Bylaws
of the
Corporation; and
That
the
resolution has been neither modified nor rescinded and is, as of the date
of
this Certificate, in full force and effect, and will remain in full force
and
effect until such time as the Board of Directors terminates the resolution
and
notifies LESSOR of such termination in writing. Such termination shall not
affect the Master Lease Agreement and Lease Schedules executed prior to
LESSOR’s
receipt
of the notice of termination.
IN
WITNESS WHEREOF, I set my hand this X 7
day
of X
May
X,
2005.
|
X
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
|
|
|
Corporate
Secretary
|
|
|
▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇
|
Confidential Page
1 of
1
VENCORE
SOLUTIONS LLC
Financial
Services and Emerging Growth Companies Coming Together
PLEASE
PROVIDE INSURANCE INFORMATION
VENCORE
SOLUTIONS LLC
▇▇▇▇
▇▇
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇
▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇.▇▇▇.▇▇▇▇
◊
FAX:
▇▇▇.▇▇▇.▇▇▇▇
MASTER
LEASE # 5209 DATE:
MAY
5, 2005
Insurance
Agent: x ▇▇▇▇ ▇▇▇▇▇/▇▇▇▇▇▇▇ Insurance
Address:
x
▇▇▇▇
▇. ▇▇▇▇▇ ▇▇. ▇.▇ ▇▇▇ ▇▇▇▇
City:
x
Tri-Cities
State:
x
WA Zip:
x
99302
Phone:
x
▇▇▇
▇▇▇ ▇▇▇▇
Fax:
x ▇▇▇
▇▇▇ ▇▇▇▇
Attention:
x
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
FROM: ISORAY
MEDICAL, INC., A DELAWARE CORPORATION
▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Ins.
Co.:
x
Esset
Insurance Co. Policy
#.
3CE5574C Expiration
Date:
x
11/18/05
Dear
Agent:
VENCORE
SOLUTIONS LLC (“Lessor”)
is
about to enter into a Master Lease Agreement and one or more Lease Schedules
(the “Lease(s)”)
with
the above-referenced LESSEE for the equipment to be more fully described
on the
Schedule “A”
to each
individual Lease Schedule (the “Equipment”).
The
Equipment will be located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(EQUIPMENT LOCATION) and has an original equipment cost of Four Hundred Thirty
Thousand Dollars and 00/100 ($430,000.00). Pursuant to the terms of the Lease,
the LESSEE is required to provide insurance coverage in relation to the
Equipment and is required to provide Lessor with an insurance certificate
naming
Lessor and its assigns as loss payee and/or additional insured as indicated
below:
Business
personal property insurance is to be provided for all risks of any kind
whatsoever for the full replacement value of the Equipment. Lessor and its
assigns and successors as they may appear are to be named as loss payees,
and
the certificate should reflect such loss payees as follows: Lessor and its
assigns and successors.
Liability
coverage is to be provided with a combined single limit in the amount of
$1,000,000.00. Lessor and its assigns and successors are to be named as
additional insureds, and the certificate should reflect such additional insureds
as follows: Lessor and its assigns and successors.
Please
send the Certificate of Insurance with the standard (30) day notice of
cancellation clause to VENCORE SOLUTIONS LLC, ▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇. Please place the above-referenced Master Lease Agreement
Number on the Certificate of Insurance.
Thank
you
very much for your assistance.
|
LESSOR
|
LESSEE:
|
|
|
ISORAY
MEDICAL, INC.,
|
||
|
VENCORE
SOLUTIONS LLC
|
A
DELAWARE CORPORATION
|
|
|
By:______________________________________
|
By:
x /s/
▇▇▇▇▇ ▇▇▇▇▇▇
|
|
|
▇▇▇▇▇
▇▇▇▇▇▇
|
||
|
Title:______________________________________
|
Title:
x
CEO & CHAIRMAN
|
|
|
Date:______________________________________
|
Date:
x
05-07-05
|
|
PLEASE
PLACE MASTER LEASE NUMBER ON INSURANCE POLICY
MASTER
LEASE AGREEMENT NUMBER: 5209
SUBORDINATION
AGREEMENT
This
subordination Agreement is entered into this X_________ day of X______________,
20X____, between VENCORE SOLUTIONS LLC and its assigns, as Lessor, and IsoRay
Medical, Inc., a Delaware Corporation, as Lessee, and ▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ Economic
Development District, as Creditor.
WHEREAS,
Lessor and Lessee intend to enter into one or more Lease Schedules to the
Master
Lease Agreement (the “Lease(s)”)
under
which Lessor will lease personal property to Lessee; and
WHEREAS,
one of the conditions of Lessor’s
approval and acceptance of the Lease(s) is that Lessor is taking a security
interest in all Equipment and Machinery of the Lessee; and
WHEREAS,
Creditor has a perfected blanket security interest in all FIXTURES, EQUIPMENT,
FURNITURE, AND MACHINERY (“Equipment”);
and
WHEREAS,
Lessor would not enter into the Lease but for Creditor’s
agreement to subordinate to Lessor Creditor’s
interest in the Equipment; NOW THEREFORE,
THE
PARTIES HEREBY AGREE AS FOLLOWS:
|
1.
|
Creditor
agrees to subordinate its interest in the Equipment to the interest
of
Lessor in the Equipment.
|
|
2.
|
Creditor
agrees that it shall take no actions against the Equipment and
shall not
assign or transfer its security interest in the Equipment of Lessee
to any
other party, until and unless all of the terms and conditions of
the
Lease(s), including but not limited to the payment of all lease
rental
payments, have been satisfied, without first obtaining the written
consent
of Lessor.
|
This
Agreement shall remain in force as long as Lessee has any remaining obligations
to Lessor under the Lease(s).
LESSOR: CREDITOR:
|
▇▇▇▇▇▇-▇▇▇▇▇▇▇▇
ECONOMIC DEVELOPMENT
|
||
|
VENCORE
SOLUTIONS LLC
|
DISTRICT
|
|
|
By:_____________________________________
|
By:
X________________________________________
|
|
|
Title:
___________________________________
|
|
Title:
X________________________________________
|
|
Date:____________________________________
|
|
Date:
X________________________________________
|
| LESSEE: | ||
| ISORAY MEDICAL, INC., | ||
| A DELAWARE CORPORATION | ||
| By: X /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ | ||
| ▇▇▇▇▇ ▇▇▇▇▇▇ | ||
| Title: CEO & CHAIRMAN | ||
|
Date:
X
05-07-05
|
MASTER
LEASE AGREEMENT NUMBER: 5209
SUBORDINATION
AGREEMENT
This
subordination Agreement is entered into this X
9th day
of
X
May
,
20X05,
between
VENCORE SOLUTIONS LLC and its assigns, as Lessor, and IsoRay Medical, Inc.,
a
Delaware Corporation, as Lessee, and ▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ Economic Development
District, as Creditor.
WHEREAS,
Lessor and Lessee intend to enter into one or more Lease Schedules to the
Master
Lease Agreement (the “Lease(s)”)
under
which Lessor will lease personal property to Lessee; and
WHEREAS,
one of the conditions of Lessor’s
approval and acceptance of the Lease(s) is that Lessor is taking a security
interest in all Equipment and Machinery of the Lessee; and
WHEREAS,
Creditor has a perfected blanket security interest in all FIXTURES, EQUIPMENT,
FURNITURE, AND MACHINERY (“Equipment”);
and
WHEREAS,
Lessor would not enter into the Lease but for Creditor’s
agreement to subordinate to Lessor Creditor’s
interest in the Equipment; NOW THEREFORE,
THE
PARTIES HEREBY AGREE AS FOLLOWS:
2. Creditor
agrees to subordinate its interest in the Equipment to the interest of Lessor
in
the Equipment.
|
3.
|
Creditor
agrees that it shall take no actions against the Equipment and
shall not
assign or transfer its security interest in the Equipment of Lessee
to any
other party, until and unless all of the terms and conditions of
the
Lease(s), including but not limited to the payment of all lease
rental
payments, have been satisfied, without first obtaining the written
consent
of Lessor.
|
This
Agreement shall remain in force as long as Lessee has any remaining obligations
to Lessor under the Lease(s).
|
LESSOR:
|
CREDITOR:
|
|
|
▇▇▇▇▇▇-▇▇▇▇▇▇▇▇
ECONOMIC DEVELOPMENT
|
||
|
VENCORE
SOLUTIONS LLC
|
DISTRICT
|
|
|
By:_____________________________________
|
By:
X /s/
▇▇▇▇ ▇▇▇▇▇
|
|
|
Title:
___________________________________
|
Title:
XEXECUTIVE
DIRECTOR
|
|
|
Date:____________________________________
|
Date:
X5-9-05
|
|
|
LESSEE:
|
||
|
ISORAY
MEDICAL, INC.,
|
||
|
A
DELAWARE CORPORATION
|
||
|
By:
X _________________
|
||
|
▇▇▇▇▇
▇▇▇▇▇▇
|
||
|
Title:
CEO
& CHAIRMAN
|
||
|
Date:
X
________________
|
MASTER
LEASE AGREEMENT NUMBER: 5209
SUBORDINATION
AGREEMENT
This
subordination Agreement is entered into this X__________ day of X ___________,
20X ____, between VENCORE SOLUTIONS LLC and its assigns, as Lessor, and IsoRay
Medical, Inc., a Delaware Corporation, as Lessee, and Columbia River Bank,
as
Creditor.
WHEREAS,
Lessor and Lessee intend to enter into one or more Lease Schedules to the
Master
Lease Agreement (the “Lease(s)”)
under
which Lessor will lease personal property to Lessee; and
WHEREAS,
one of the conditions of Lessor’s
approval and acceptance of the Lease(s) is that Lessor is taking a security
interest in all Equipment and Machinery of the Lessee; and
WHEREAS,
Creditor has perfected blanket security interest in all FIXTURES, EQUIPMENT,
FURNITURE, AND MACHINERY (“Equipment”);
and
WHEREAS,
Lessor would not enter into the Lease but for Creditor’s
agreement to subordinate to Lessor Creditor’s
interest in the Equipment; NOW THEREFORE,
THE
PARTIES HEREBY AGREE AS FOLLOWS:
|
1.
|
Creditor
agrees to subordinate its interest in the Equipment to the interest
of
Lessor in the Equipment with
the exception of two Unitech Myachi L W5A-JE laser welders, model
numbers
8-800-01-01 and 8-802-01-01 with serial numbers of 04110099 and
04040181.
|
|
2.
|
Creditor
agrees that it shall take no actions against the Equipment and
shall not
assign or transfer its security interest in the Equipment of Lessee
to any
other party, until and unless all of the terms and conditions of
the
Lease(s), including but not limited to the payment of all lease
rental
payments, have been satisfied, without first obtaining the written
consent
of Lessor.
|
This
Agreement shall remain in force as long as Lessee has any remaining obligations
to Lessor under the Lease(s).
| LESSOR: | CREDITOR: |
| VENCORE SOLUTIONS LLC | COLUMBIA RIVER BANK |
| By:_____________________________________ | By: X /s/ |
| Title: ___________________________________ |
Title:
X SUP
+ REGION MANAGER
|
| Date:____________________________________ |
Date:
X
May 6, 2005
|
|
LESSEE:
|
|
|
ISORAY
MEDICAL,
INC.,
|
|
| A DELAWARE CORPORATION | |
| By: X /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ | |
| ▇▇▇▇▇ ▇▇▇▇▇▇ | |
| Title: CEO & CHAIRMAN | |
| Date: X 05-07-05 |