EXHIBIT 10.40
SLB/CS(R062599)
BIOTECH EQUIPMENT SCHEDULE
SCHEDULE NO.003
DATED THIS 09-17-99
TO MASTER LEASE AGREEMENT
DATED AS OF July 16, 1993
Lessor & Mailing Address: Lessee & Mailing Address
Scios, Inc.
General Electric Capital Corporation ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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, ▇▇▇▇▇▇ agrees
to Lease to Lessee the Equipment described below (the "Equipment").
B.
Number Capitalized Manufacturer Serial Number Model & Type of Equipment
of Units Lessor's Cost
$611,579.20 Various Scientific
Laboratory Equipment
Equipment immediately listed above is located at: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
B. Financial Terms
1. Advance Rent (if any): $16,754.26 5. Basic Term Commencement Date: October 1, 1999
2. Capitalized Lessor's Cost $611,579.20 6. Lessee Federal Tax ID No.: ▇▇▇▇▇▇▇▇▇
3. Basic Term (No. of Months): 36 Months 7. Last Delivery Date: September 30, 1999
4. Basic Term Lease Rate Factor: 2.739508 8. Daily Lease Rate Factor: .09131933
9. First Termination Date: Thirty-six (36) 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 September 30, 1999.
11. Basic Term Rent. Commencing on October 1, 1999 and on the same day of
each month thereafter (each, a "Rent Payment Date") during the Basic
Term, Lessee shall pay as rent ("Basic Term Rent") the product of the
Basic Term Lease Rate Factor times the Capitalized Lessor's Cost of
all Equipment on this Schedule.
12. Secondary Term Rent. Unless the Schedule has been earlier terminated
as provided therein, commencing on October 1, 2002 (the "Secondary
Term Commencement Date") and on the same day of each month thereafter
(each, a "Rent Payment Date") for 12 months (the "Secondary Term"),
Lessee shall pay as rent ("Secondary Term Rent") the product of
1.764763 0 (the "Secondary Term Lease Rate Factor") times the
Capitalized Lessor's Cost of all Equipment on this Schedule.
13. Adjustment to Capitalized Lessor's Cost. Lessee hereby irrevocably
authorizes Lessor to adjust the Capitalized Lessor's Cost up or down
by no more than ten percent (10%) to account for equipment change
orders, equipment returns, invoicing errors and similar matters.
▇▇▇▇▇▇ acknowledges and agrees that the Rent shall be adjusted as a
result of such change in the Capitalized Lessor's Cost. Lessor shall
send Lessee a written notice stating the final Capitalized Lessor's
Cost, if different from that disclosed on this Schedule.
C. Tax Benefits Depreciation Deductions:
1. Depreciation method is the 200% declining balance method, switching
to straight line method for the 1st taxable year for which using the
straight line method with respect to the adjusted basis as of the
beginning of such year will yield a larger allowance.
2. Recovery Period: 5 years.
3. Basis: 100% of the Capitalized Lessor's Cost.
D. Property Tax
APPLICABLE TO EQUIPMENT LOCATED IN SUNNYVALE, CA 94086: ▇▇▇▇▇▇ agrees that it
will (a) list all such Equipment (b) report all property taxes assessed
against such Equipment and (c) pay all such taxes when due directly to the
appropriate taxing authority until Lessor shall otherwise direct in
writing. Upon request of ▇▇▇▇▇▇, Lessee shall promptly provide proof of
filing and proof of payment to Lessor.
Lessor may notify Lessee (and ▇▇▇▇▇▇ agrees to follow such notification)
regarding any changes in property tax reporting and payment
responsibilities.
E. Insurance
1. Public Liability: At least $1,000,000 total liability per occurrence.
2. Casualty and Property Damage: An amount equal to the higher of the
Stipulated Loss Value or the full replacement cost of the Equipment.
F. Article 2A Notice
IN ACCORDANCE WITH THE REQUIREMENTS OF ARTICLE 2A OF THE UNIFORM
COMMERCIAL CODE AS ADOPTED IN THE APPLICABLE STATE, LESSOR HEREBY MAKES
THE FOLLOWING DISCLOSURES TO LESSEE PRIOR TO EXECUTION OF THE LEASE, (A)
THE PERSON(S) SUPPLYING THE EQUIPMENT IS Various (THE "SUPPLIER(S)"), (B)
LESSEE IS ENTITLED TO THE PROMISES AND WARRANTIES, INCLUDING THOSE OF ANY
THIRD PARTY, PROVIDED TO THE LESSOR BY SUPPLIER(S), WHICH IS SUPPLYING THE
EQUIPMENT IN CONNECTION WITH OR AS PART OF THE CONTRACT BY WHICH ▇▇▇▇▇▇
ACQUIRED THE EQUIPMENT AND (C) WITH RESPECT TO SUCH EQUIPMENT, LESSEE MAY
COMMUNICATION 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 SECTION OF THE AGREEMENT.
G. Stipulated Loss and Termination Value Table*
stipulated
termination loss
# of value value
payments % of cost % of cost
1 102.875 107.150
2 101.048 105.671
3 99.194 104.166
4 97.315 102.635
5 95.413 101.082
6 93.490 99.507
7 91.544 97.910
8 89.577 96.291
9 87.587 94.650
10 85.575 92.986
11 83.541 91.300
12 81.484 89.592
13 79.404 87.861
14 77.302 86.106
15 75.176 84.329
16 73.028 82.530
17 70.856 80.706
18 68.661 78.859
19 66.448 76.995
20 64.217 75.112
21 61.968 73.212
22 59.701 71.293
23 57.410 69.350
24 55.100 67.389
25 52.772 65.409
26 50.423 63.409
27 48.070 61.404
28 45.694 59.377
29 43.297 57.328
30 40.877 55.257
31 38.436 53.164
32 35.972 51.048
33 33.485 48.910
34 30.976 46.749
35 28.443 44.565
36 25.887 42.357
37 23.316 40.135
38 21.706 38.873
39 20.081 37.596
40 18.441 36.305
41 16.786 34.998
42 15.115 33.676
43 13.429 32.339
44 11.728 30.986
45 10.011 29.617
46 8.278 28.233
47 6.530 26.833
48 4.765 25.416
*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.
H. Modifications and Additions for This Schedule Only
For purposes of this Schedule only, the Agreement is amended as follows:
1. The LEASING Section of the Lease is hereby deleted in its entirety and
the following substituted in its stead:
a) Subject to the terms and conditions set forth below, ▇▇▇▇▇▇ agrees
to lease to ▇▇▇▇▇▇, and ▇▇▇▇▇▇ agrees to lease from Lessor, the equipment
("Equipment") described in Annex A to any schedule hereto ("Schedule") or,
if applicable, to Section A of any Schedule. Terms defined in a Schedule
and not otherwise defined herein shall have the meanings ascribed to them
in such Schedule.
b) The obligation of Lessor to purchase the Equipment from Lessee and
to lease the same to Lessee shall be subject to receipt by Lessor, on or
prior to the earlier of the Lease Commencement Date or Last Delivery Date
therefor, of each of the following documents in form and substance
satisfactory to Lessor:
(i) a Schedule for the Equipment (ii) evidence of insurance which complies
with the requirements of the INSURANCE Section of the Lease, and (iii) such
other documents as Lessor may reasonably request. Once the Schedule is
signed, the Lessee may not cancel the Lease.
2. The DELIVERY, USE AND OPERATION Section subsection (a) of the Lease
shall be deleted and the following substituted in its stead:
The parties acknowledge that this is a sale/lease back transaction and
the Equipment is in ▇▇▇▇▇▇'s possession as of the Lease Commencement Date.
3. BILL OF SALE
Lessee, in consideration of the Lessor's payment of the amount set
forth in B 2. above, which includes any applicable sales taxes (which
payment Lessee acknowledges), hereby grants, sells, assigns, transfers and
delivers to Lessor the Equipment along with whatever claims and rights
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
from and against any and all liabilities, obligations, losses, damages,
penalties, claims, actions and suits resulting therefrom and imposed upon,
incurred by or asserted against Lessor as a consequence of the sale of the
Equipment to Lessor.
4. ACCEPTANCE
Pursuant to the provisions of the Lease, as it relates to this
Schedule, Lessee hereby certifies and warrants that (i) all Equipment
listed above has been delivered and installed (if applicable); (ii) Lessee
has inspected the Equipment, and all such testing as it deems necessary has
been performed by Lessee, Supplier or the manufacturer; and (iii) Lessee
accepts the Equipment for all purposes of the Lease, the purchase documents
and all attendant documents.
Lessee does further certify, and Lessor hereby waives any requirement
of a separate Certificate of Acceptance, that as of the date hereof (i)
Lessee is not in default under the Lease; (ii) the representations and
warranties made by Lessee pursuant to or under the Lease are true and
correct on the date hereof and (iii) Lessee has reviewed and approves of
the purchase documents for the Equipment, if any.
5. EQUIPMENT SPECIFIC PROVISIONS
The SERVICE Section of the Lease is amended by adding the following as
the third sentence in subsection (a):
▇▇▇▇▇▇ 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 govemmental authority,
agency or court relating to environmental matters connected with any Equipment.
(b) "Affiliate" shall refer, with respect to any given Person, to any
Person that directly or indirectly through one or more intermediaries, controls,
or is controlled by, or is under common control with, such Person.
(c) "Contaminant" shall refer to those substances which are regulated by or
form the basis of liability under any Environmental Law, including, without
limitation, asbestos, polychlorinated biphenyls ("PCB's"), and radioactive
substances, or other material or substance which has in the past or could in the
future constitute a health, safety or environmental hazard to any Person,
property or natural resources.
(d) "Environmental Claim" shall refer to any accusation, allegation, notice
of violation, claim, demand, abatement or other order on direction (conditional
or otherwise) by any govemmental 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
attomeys' 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 ▇▇▇▇▇▇, its successors and assigns.
The SERVICE Section subsection (a) of the Lease shall be amended by adding
the following at the end thereof:
RETURN PROVISIONS: In addition to the provisions provided for in the RETURN OF
EQUIPMENT Section of the Lease, and provided that ▇▇▇▇▇▇ 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;
(g) provide that all Equipment will be cleaned and cosmetically acceptable,
and in such condition so that it may be immediately installed and placed into
use in a similar environment;
(h) properly remove or treat all rust or corrosion;
(i)ensure all items of Equipment will be completely sterilized,
steam-cleaned, and de-greased upon redelivery;
(j)properly remove all Lessee installed markings which are not necessary
for the operation, maintenance or repair of the Equipment,
(k) ensure the Equipment shall be mechanically and structurally sound,
capable of performing the functions for which the Equipment was originally
designed, in accordance with the manufacturer's published and recommended
specifications;
(l) provide for the deinstallation, packing, transporting, and certifying
of the Equipment to include, but not limited to, the following: (i) the
manufacturer's representative shall de-install all Equipment (including all
wire, cable and mounting hardware) in accordance with the specifications of the
manufacturer; (ii) each item of Equipment will be returned with a certificate
supplied by the manufacturer's representative qualifying the Equipment to be in
good condition and (where applicable) to be eligible for the manufacturer's
maintenance plan; the certificate of eligibility shall be transferable to
another operator of the Equipment; (iii) the Equipment shall be packed properly
and in accordance with the manufacturer's recommendations, free from all
contaminants; (iv) Lessee shall provide for transportation of the Equipment in a
manner consistent with the manufacturer's recommendations and practices to any
locations within the continental United States as Lessor shall direct; and shall
have the Equipment unloaded at such locations; (v) Lessee shall obtain and pay
for a policy of transit insurance for the redelivery period in an amount equal
to the replacement value of the Equipment and Lessor shall be named as the loss
payee on all such policies of insurance; and (vi) Lessee shall provide insurance
and safe, secure storage for the Equipment for ninety (90) days after expiration
or earlier termination of the Lease at accessible locations satisfactory to
Lessor.
6 LEASE TERM OPTIONS
End or Basic Term Options
At the expiration of the Basic Term (the "Basic Term Expiration Date"), so
long as no default has occurred and is continuing hereunder and this Agreement
has not been earlier terminated, Lessee shall exercise one of the following
options.
(1) EXTENSION OPTION. Lessee may extend the Lease beyond the Basic Term
Expiration Date with respect to all (but not less than all) of the Equipment
covered by this Schedule through the Secondary Term set forth in this Schedule
and Lessee shall pay Secondary Term Rent as set forth in this Schedule.
(2) PURCHASE OPTION. Upon at least one hundred eighty (180) but not more
than two hundred seventy (270) days written notice to Lessor prior to the Basic
Term Expiration Date, Lessee may purchase all (but not less than all) of the
Equipment covered by this Schedule on an AS IS BASIS for cash equal to the
greater of (A) twenty percent (20%) of the Capitalized Lessor's Cost (plus all
applicable sales taxes) or (B) the then Fair Market Value of the Equipment (plus
all applicable sales taxes). On the Basic Term Expiration Date, Lessor shall
receive in cash the full purchase price plus all applicable sales taxes)
together with any rent or other sums then due under the Lease on such date.
Lessee shall be deemed to have waived its purchase option if it fails to (a)
timely provide Lessor with the required written notice of its election to
exercise the same or (b) provide Lessor with written notice of its irrevocable
election to exercise the same within fifteen (15) days after Fair Market Value
is determined (by agreement or appraisal).
(3) CANCELLATION OPTION. Upon at least one hundred eighty (180) but not
more than two hundred seventy (270) days written notice to Lessor prior to the
Basic Term Expiration Date (the "Notice Date"), Lessee may cancel the Agreement
(the "Cancellation Option") with respect to all (but not less than all) of the
Equipment on this Schedule. If all of the terms and conditions of this Section
are not fulfilled, this Lease shall continue in fill force and effect and Lessee
shall continue to be liable for all obligations thereunder, including, without
limitation, the obligation to continue paying rent. Lessee shall be deemed to
have waived this option if it fails to timely provide Lessor with the required
written notice of its election to exercise the same.
(a) Prior to the Basic Term Expiration Date, Lessee shall
(i) pay to Lessor, as additional rent, twenty three and three hundred
sixteen hundredths percent (23.316%) of the Capitalized Lessor's Cost of the
Equipment, plus all rent and all other sums due and unpaid as of the Basic Term
Expiration Date (including, but not limited to, any rent payment due and payable
on the Basic Term Expiration Date and any sales taxes and property taxes); and
(ii) return the Equipment in full compliance with the RETURN OF
EQUIPMENT Section of the Lease, such compliance being independently verified by
an independent appraiser selected by Lessor (reasonably acceptable to Lessee) to
determine that the Equipment is in such compliance, which determination shall be
final, binding and conclusive. Lessee shall bear all costs associated with such
appraiser's determination and such costs, if any, to cause the Equipment to be
in full compliance with the RETURN OF EQUIPMENT Section of the Lease on or prior
to such Basic Term Expiration Date.
(b) From the applicable Notice Date through the Basic Term Expiration Date,
Lessee shall:
(i) continue to comply with all of the terms and conditions of the
Lease, including, but not limited to, ▇▇▇▇▇▇'s obligation to pay rent, and
(ii) make the Equipment available to Lessor in such a manner as to
allow Lessor to market and demonstrate the Equipment to potential purchasers or
lessees from such premises at no cost to Lessor; provided, however, that,
subject to Lessor's right to market and demonstrate the Equipment to potential
purchasers or lessees from time to time, Lessee may still use the Equipment
until the Basic Term Expiration Date.
(c) Lessee shall, from the Basic Term Expiration Date through the earlier
of the date the Equipment is sold by Lessor to a third party or thirty (30) days
following the Basic Term Expiration Date, comply with the following terms and
conditions:
(i) continue to provide insurance for the Equipment, at ▇▇▇▇▇▇'s own
expense, in compliance with the terms found in the INSURANCE Section of the
Lease, and
(ii) make the Equipment available to Lessor and/or allow Lessor to
store the Equipment at Lessee's premises, in such a manner as to allow Lessor to
market and demonstrate the Equipment to potential purchasers or lessees from
such premises at no cost to Lessor.
(d) The proceeds of any sale or re-lease of the Equipment after Lessee has
exercised its Cancellation Option shall be for the sole benefit of Lessor and
Lessee shall have no interest in nor any claim upon any of such proceeds.
END OF SECONDARY TERM OPTIONS
The PURCHASE OPTION Section subsection (a) of the Lease is hereby
deleted in its entirety and the following is substituted therefor:
(a) So long as no default exists hereunder and the Lease has not
been earlier terminated, Lessee may at the expiration of the Secondary Term
upon at least one hundred eighty (180) days but not more than two hundred
seventy (270) days written notice to Lessor prior to the end of the Secondary
Term, purchase all (but not less than all) of the Equipment in this Schedule
on an AS IS, WHERE IS BASIS, without recourse to or warranty from Lessor,
express or implied ("AS IS BASIS") for cash equal to its then Fair Market
Value (plus all applicable sales taxes).
I. Payment Authorization
You are hereby irrevocably authorized and directed to deliver and apply the
proceeds due under this Schedule as follows:
Company Name Address Amount
Scios, Inc. ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇▇▇▇▇. CA 94086 $611,579.20
This authorization and direction is given pursuant to the same authority
authorizing the above-mentioned financing.
Except as expressly modified hereby, all terms and provisions of the
Agreement shall remain in full force and effect. This Schedule is not binding or
effective with respect to the Agreement or Equipment until executed on behalf of
Lessor and Lessee by authorized representatives of Lessor and Lessee,
respectively.
IN WITNESS WHEREOF, ▇▇▇▇▇▇ and ▇▇▇▇▇▇ have caused this Schedule to be
executed by their duly authorized representatives as of the date first above
written.
LESSOR: LESSEE:
(GENERAL ELECTRIC CAPITAL CORPORATION SCIOS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: Name:
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Credit Manager Chief Financial Officer
Title: Title:
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