Master Equipment Lease Commitment - Pentech Financial Services Inc. and ViroLogic Inc.
PENTECH FINANCIAL SERVICES, INC.
MASTER EQUIPMENT LEASE COMMITMENT
Subject to the conditions set forth in this Master Equipment Lease
Commitment ("Commitment"), the following leasing transaction is agreed to by and
between PENTECH FINANCIAL SERVICES, INC., a California corporation ("Lessor")
and VIROLOGIC, INC. a Delaware corporation ("Lessee"), in connection with the
terms and conditions of Master Equipment Lease No. 300601 (the "Lease").
1. MASTER EQUIPMENT LEASE with effective date of 3/28/00.
2. EQUIPMENT (all Equipment is to be acceptable to Lessor):
(all Equipment is to be acceptable to Lessor): computers, test
equipment, office furniture and other related equipment to be approved by
Lessor. A percentage equal to 20% of the line amount but not more than 25% of
any individual schedule may be used for "soft cost" exclusions listed below.
EXCLUSIONS: custom use equipment, software, installation and delivery
costs, purchase tax, tooling equipment, tenant improvements and items generally
considered fungible or expendable.
3. COMMITMENT AMOUNT. 1,000,000.00.
4. LEASE SUPPLEMENTS. This is a Master Equipment Lease transaction
whereby Supplements may be funded as Equipment is delivered. Supplements
scheduling Equipment to be subject to the Lease will each be for the term and
on the conditions set out herein. No individual Supplement shall be for less
than $50,000.
5. TERM. Each Supplement under the Lease will be for an initial term of
36 months commencing on the first day of the calendar month following delivery
and acceptance of the Equipment on the Supplement.
6. MONTHLY RENT PAYMENT. 3.144% of original Equipment cost, payable
monthly in advance.
7. COMMENCEMENT DATE. Monthly rent for each Supplement will commence on
the first day of the calendar month following delivery and acceptance of the
Equipment on the Supplement.
8. INTERIM RENT. Interim rent will be charged for the period commencing
on delivery and acceptance of the Equipment on any particular Supplement and
ending the last day in that month, and will be the daily equivalent of the
Monthly Rent Payment, computed on a thirty (30) day month.
9. COMMITMENT EXPIRATION DATE. December 31, 2000.
Lessee acknowledges that Lessor will have no further obligations hereunder
as to any item of Equipment not included on any Supplement under the Lease
after the Commitment Expiration Date.
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10. RATE ADJUSTMENT. The Monthly Lease Rate Factor will be indexed to the
thirty (30) day London Inter Bank Offer Rate ("LIBOR") (the "Index Instrument")
which on the date of the proposal was 5.78125% (Wall Street Journal dated
January 14, 2000). The Monthly Lease Rate Factor shall be adjusted to provide
for any increase or decrease, with a floor of 5.78125%. At the Commencement
Date of each Supplement, the Monthly Lease Rate Factor shall be fixed for the
initial term of such Supplement.
11. DOCUMENTATION. Prior to the Lessor issuing a purchase order for any
item of Equipment, Lessee will comply with, procure and/or execute, have
executed, acknowledge, have acknowledged, deliver to Lessor, record and file
any documents, or produce such evidence, facts or figures as set forth in
Exhibit A accompanying this Commitment, and will do likewise as to any further
documents, evidence, facts or figures that Lessor and its counsel may now or
hereafter deem necessary or advisable to protect Lessor's rights under the
Lease and Supplements and its interest in the Equipment. Lessee will pay as
directed by Lessor, or will reimburse Lessor on demand, for all reasonable
out-of-pocket costs, including legal, appraisal, due diligence, title and lien
searches, UCC recording, documentation and other charges incurred by Lessor in
connection with the Lease and Supplements. The form, substance and sufficiency
of all documents employed in documenting the Lease and Supplements contemplated
hereby must be acceptable to Lessor and its counsel. Such costs and charges not
to exceed $5,000 in the aggregate for all Leases and Supplements.
12. TERMINATION. Lessor, in its sole discretion, retains the right to
delay or to cancel lease funding commitments if adverse change in Lessee's
financial condition occurs which has, in Lessor's sole discretion, materially
impacted or which may materially impact Lessee's credit capability. Lessor may,
at its option, terminate its obligation to Lessee hereunder (a) at or
subsequent to the Commitment Expiration Date; (b) upon the advent of a material
adverse change, in Lessor's sole discretion, in Lessee's financial condition or
Lessee's probable ability to perform its obligations under the Lease and
Supplements; (c) if the Lease, any Supplement, or any other agreement under
which Lessee has the obligation to Lessor is in default or an event which would
constitute a default under the Lease, any Supplement or any other agreement has
occurred and is continuing; or (d) with respect to any item if the shipping
costs, installation charges and design costs applicable thereto exceed more
than fifteen percent (15%) of its total cost to Lessor. Termination shall occur
upon Lessor's giving three (3) days written notice of termination to Lessee. In
the event Lessor elects to terminate its obligation to Lessee as described
herein, Lessee will purchase all of Lessor's right, title and interest in the
Equipment subject to the Lease and Supplements thereto for the amount Lessor
has paid or has become obligated to pay on account thereof, plus interest on
amounts actually paid at the rate of eighteen percent (18%) per annum, or such
greater or lesser contract rate as may be applicable to Lessor, from the date
paid to the date of Lessee's repurchase. Lessee acknowledges that Lessee will,
upon demand by Lessor, pay directly to the appropriate party the amount of any
invoice which may be furnished to Lessor subsequent to inclusion of the
applicable item of Equipment on a Supplement.
ACCEPTED AND AGREED to on 3/28/00.
LESSOR: LESSEE:
PENTECH FINANCIAL SERVICES, INC. VIROLOGIC, INC.
a California corporation a Delaware corporation
By: By: /s/ Martin H. Goldstein
------------------------- -----------------------
Benjamin E. Millerbis Name Martin H. Goldstein
-----------------------
Its: President Its: President
-----------------------
<PAGE> 3
EXHIBIT A TO MASTER EQUIPMENT LEASE COMMITMENT
These provisions hereby become part of the Master Equipment Lease Commitment
for Master Equipment Lease No. 300601 with effective date of 3/28/00 between
PENTECH FINANCIAL SERVICES, INC., Lessor, and VIROLOGIC INC., Lessee, as
supplemented by the terms described in that certain proposal letter from Lessor
to Lessee dated February 24, 2000, executed by Lessee as of March 2, 2000.
In addition to the terms of the Master Equipment Lease Agreement (the
"Agreement"), Lessee further agrees to the following additional provisions:
1. UCC SEARCH/RELEASES: The Lessor may search all public records and filings
of Lessee to locate and identify any conflicting liens against the Equipment.
UCC releases from any intervening parties holding a security interest in said
Equipment shall be required prior to funding any Supplement.
2. TYPE OF LEASE: This is a net lease transaction whereby maintenance,
insurance, property taxes, and all items of a similar nature are solely for the
account of the Lessee.
3. EXPENSES: All expenses associated with the lease transaction contemplated
hereby including, but not limited to, UCC filing fees and searches,
documentation costs, legal expenses, and equipment verification costs are
solely for the account of the Lessee, provided that such expense shall not
exceed $5,000 in the aggregate for all Supplements.
4. LEASE DEPOSIT: Lessee shall provide Lessor a Lease Deposit in the amount
of $10,000, receipt of which is hereby acknowledged. This deposit shall be
applied to Lessee's first monthly rent payment on a prorated basis for each
Supplement funded under the Lease. The balance of any unapplied Lease Deposit
as of the Commitment Expiration Date shall be deemed to have been earned by
Lessor as of that date.
5. COMMITMENT EXPIRATION: The Commitment Expiration Date may be extended, in
Lessor's sole discretion, upon review by Lessor of the Lessee's then current
financial condition. Lessee agrees to provide Lessor such financial and other
information as Lessor may reasonably request to evaluate Lessee's financial
condition for purposes of granting such extension.
ADDITIONAL EQUIPMENT LEASE COMMITMENT PROVISIONS:
A. MONTHLY FINANCIAL STATEMENTS: Lessee agrees that for so long as any item
of equipment shall be leased under the Agreement, Lessee will deliver or cause
to be delivered to Lessor (a) as soon as practicable after the end of each
month, monthly financial statements for the month just closed, including
balance sheet, and related statements of income and expense for such month, all
in reasonable detail prepared in accordance with generally accepted accounting
principles consistently applied throughout the period involved and certified by
Lessee's chief financial officer; and (b) as soon as practicable, and in any
event within 120 days after the close of each fiscal year of Lessee, the
audited balance sheet of Lessee as of the end of such fiscal year together with
the related statements of income and expense for such fiscal year together with
the related statements of income and expense for such fiscal year, all in
reasonable detail, prepared in accordance with generally accepted accounting
principles consistently applied throughout the period involved and certified by
an independent certified public accountant acceptable to Lessor.
B. ANNUAL FINANCIAL STATEMENTS: Lessee agrees to provide Lessor with Lessee's
annually audited financial statements within 120 days of the close of Lessee's
fiscal year end.
C. ADVANCE PAYMENTS: The first and last month's rent under any Supplement
will be payable prior to the Commencement Date of the Supplement.
D. PURCHASE OPTION: Lessee shall purchase all but not less than all of the
equipment under any lease schedule at a price equal to 11% of its original cost
at the end of the Initial Term ("Purchase Option").
E. ADVERTISING: During the term of any schedule or supplement under this
Master Lease line, Lessor may publish, for the purpose of its own advertising
and promotion only, via print and/or electronic media, the name and the logo of
Lessee, together with the total amount of the Master Lease Line.
F. WARRANTS: Lessee shall issue to Lessor a Warrant to purchase 23,585 shares
of Virologic, Inc. Series C Preferred Stock at a strike price of $2.12 per
share. The Warrant shall have an exercise term of 10 years from the date of
issue and shall contain standard anti-dilution provisions. The Warrant may be
exchanged without the payment of any additional consideration for stock based
upon the value of the common or preferred stock at the exchange, i.e., net
issuance.
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CERTIFICATE OF SECRETARY
AS TO ADOPTION OF RESOLUTIONS
The undersigned, _________________________________ (Corporate Secretary)
hereby certifies that he/she is now, and at all times herein mentioned has
been, the duly elected, qualified and acting Secretary of Virologic, Inc., a
Delaware corporation, a duly organized and existing corporation, and in charge
of the minute book and corporate records of said corporation; that the
following is a full, true and correct copy of certain resolutions adopted by
the Board of Directors of said corporation at a meeting thereof duly held on
__________________ (Date), at which meeting a quorum of said Board was at all
times present and acting; and that said resolutions have not been modified nor
rescinded and are at the date of this Certificate in full force and effect:
WHEREAS it is in the best interest of this corporation to enter into a certain
Equipment Lease Agreement, Equipment Financing Agreement or other financing
agreement with PENTECH FINANCIAL SERVICES, INC. ("Lessor/Secured Party") and,
where appropriate, commitments, now or hereafter contemplating the receipt by
this corporation of financial accommodation from Lessor/Secured Party under the
terms and conditions of said Equipment Lease Agreement, Equipment Financing
Agreement or other financing agreement and may in the future be in this
corporation's best interests to enter into such agreements or other financing
agreements with Lessor/Secured Party.
NOW THEREFORE BE IT RESOLVED: That the officers of this corporation listed
below, and each of them, are hereby authorized and directed to execute,
acknowledge and deliver in the name of and on behalf of this corporation said
Equipment Lease Agreement, Equipment Financing Agreement or other financing
agreement, commitments and any such further agreement.
RESOLVED FURTHER: That the officers, agents and employees of this corporation
be and each of them is hereby authorized and empowered to do and perform such
other acts and things, and to make, execute, acknowledge, procure and deliver
all such other instruments and documents on behalf of this corporation as may
be necessary or be by such officer, agent or employee deemed appropriate to
comply with, or to evidence compliance with, the terms, conditions or
provisions of said Equipment Lease Agreement, Equipment Financing Agreement or
other financing agreement, any commitment or any further agreement and to
consummate the transactions from time to time contemplated thereby.
RESOLVED FURTHER: That this corporation hereby ratifies and confirms the acts
of the officer, agents or employees of this corporation in heretofore entering
into any Equipment Lease Agreement, Equipment Financing Agreement, commitment
or other agreement with Lessor/Secured Party together with any other acts
performed in relation thereto.
RESOLVED FURTHER: That the Secretary of this corporation be and he/she is
hereby authorized and directed to execute, acknowledge and deliver a certified
copy of these resolutions to Lessor/Secured Party and any other person or
agency which may require a copy of these resolutions.
RESOLVED FURTHER: That the following are the true names and specimen signatures
of the incumbent officers of this corporation authorized by these resolutions
to so execute, acknowledge and deliver said Equipment Lease Agreement,
Equipment Financing Agreement or other agreement, commitment and further
agreements.
(Typed Name) (Specimen Signature)
__________________________, President /s/ Martin H. Goldstein
__________________________, Vice Pres. ________________________________
__________________________, Secretary ________________________________
__________________________, CFO ________________________________
RESOLVED FURTHER: That Lessor/Secured Party is authorized to act upon these
resolutions until written notice of the revocation thereof is delivered to
Lessor/Secured Party, any such revocation in no way to affect the obligations
of this corporation to Lessor/Secured Party under any agreements entered into
by this corporation pursuant to the terms of these resolutions prior to receipt
by Lessor/Secured Party of such notice of revocation.
IN WITNESS WHEREOF, the undersigned has executed this Certificate as of March
__, 2000.
____________________________________
(Secretary)
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PENTECH FINANCIAL SERVICES, INC.
EQUIPMENT FINANCING AGREEMENT
EFA#200371
THIS EQUIPMENT FINANCING AGREEMENT ("Agreement") with effective date of 3/28/00
("Effective Date"), is entered into by and between PENTECH FINANCIAL SERVICES,
INC., a California corporation ("Secured Party") and VIROLOGIC, INC., a
Delaware corporation ("Debtor").
1. EQUIPMENT; SECURITY INTEREST. The terms and conditions of this Agreement
cover each item of machinery, equipment and other property (individually an
"Item" or "Item of Equipment" and collectively the "Equipment") described in a
schedule now or hereafter executed by the parties hereto and made a part hereof
(individually a "Schedule" and collectively the "Schedules"). Debtor hereby
grants Secured Party a security interest in and to all Debtor's right, title
and interest in and to the Equipment under the Uniform Commercial Code, such
grant with respect to an Item of Equipment to be effective as of Debtor's
execution of a related equipment financing commitment referencing this
Agreement or, if Debtor then has no interest in such Item, as of such
subsequent time as Debtor acquires an interest in the Item. Such security
interest is granted by Debtor to secure performance by Debtor of Debtor's
obligations to Secured Party hereunder and under any other agreements under
which Debtor has or may hereafter have obligations to Secured Party. Debtor
will ensure that such security interest will be and remain a sole and valid
first lien security interest subject only to the lien of current taxes and
assessments not in default but only if such taxes are entitled to priority as a
matter of law.
2. DEBTOR'S OBLIGATIONS. The obligations of Debtor under this Agreement
respecting an Item of Equipment, except the obligation to pay installment
payments with respect thereto which will commence as set forth in paragraph 3
below, commence upon the grant to Secured Party of a security interest in the
Item. Debtor's obligations hereunder with respect to an Item of Equipment and
Secured Party's security interest therein will continue until payment of all
amounts due, and performance of all terms and conditions required, hereunder
with respect thereto; provided, however, that if this Agreement is then in
default said obligations and security interest will continue during the
continuance of said default. Upon termination of Secured Party's security
interest in an Item of Equipment, Secured Party will execute such release of
interest with respect thereto as Debtor reasonably requests.
3. INSTALLMENT PAYMENTS AND OTHER PAYMENTS. Debtor will repay advances Secured
Party makes on account of the Equipment together with interest in installment
payments in the amounts and at the times set forth in the Schedules, whether or
not Secured Party has rendered an invoice therefor, at the office of Secured
Party set forth at the foot hereof, or to such person and/or at such other
place as Secured Party may from time to time designate on notice to Debtor. Any
other amounts required to be paid Secured Party by Debtor hereunder are due
upon Debtor's receipt of Secured Party's invoice therefor and will be payable
as directed in the invoice. Payments under this Agreement may be applied to
Debtor's then accrued obligations to Secured Party in such order as Secured
Party may choose.
4. NET AGREEMENT; NO OFFSET; SURVIVAL. This Agreement is a net agreement, and
Debtor will not be entitled to any abatement of installment payments or other
payments due hereunder or any reduction thereof under any circumstances or for
any reason whatsoever. Debtor hereby waives any and all existing and future
claims, as offsets, against any installment payments or other payments due
hereunder and agrees to pay the installment payments and other amounts due
hereunder as and when due regardless of any offset or claim which may be
asserted by Debtor or on its behalf. The obligations and liabilities of Debtor
hereunder will survive the termination of this Agreement.
5. FINANCING AGREEMENT. THIS AGREEMENT IS SOLELY A FINANCING AGREEMENT. DEBTOR
ACKNOWLEDGES THAT THE EQUIPMENT HAS OR WILL HAVE BEEN SELECTED AND ACQUIRED
SOLELY BY DEBTOR FOR DEBTOR'S PURPOSES, THAT SECURED PARTY IS NOT AND WILL NOT
BE THE VENDOR OF ANY EQUIPMENT AND THAT EXCEPT FOR SECURED PARTY'S WARRANTY OF
QUIET ENJOYMENT IN THE EQUIPMENT SECURED PARTY HAS NOT MADE AND WILL NOT MAKE
ANY AGREEMENT, REPRESENTATION OR WARRANTY WITH RESPECT TO THE MERCHANTABILITY,
CONDITION, QUALIFICATION OR FITNESS FOR A PARTICULAR PURPOSE OR VALUE OF THE
EQUIPMENT OR ANY OTHER MATTER WITH RESPECT THERETO IN ANY RESPECT WHATSOEVER.
6. NO AGENCY. DEBTOR ACKNOWLEDGES THAT NO AGENT OF THE MANUFACTURER OR OTHER
SUPPLIER OF AN ITEM OF EQUIPMENT OR OF ANY FINANCIAL INTERMEDIARY IN CONNECTION
WITH THIS AGREEMENT IS AN AGENT OF SECURED PARTY. SECURED PARTY IS NOT BOUND BY
A REPRESENTATION OF ANY SUCH PARTY AND, AS CONTEMPLATED IN PARAGRAPH 27 BELOW,
THE ENTIRE AGREEMENT OF SECURED PARTY AND DEBTOR CONCERNING THE FINANCING OF
THE EQUIPMENT IS CONTAINED IN THIS AGREEMENT AS IT MAY BE AMENDED AS PROVIDED
IN THAT PARAGRAPH.
7. ACCEPTANCE. Execution by Debtor and Secured Party of a Schedule covering
the Equipment or any Items thereof will conclusively establish that such
Equipment has been included under and will be subject to all the terms and
conditions of this Agreement. If Debtor has not furnished Secured Party with a
Schedule by the earlier of fourteen (14) days after receipt thereof or
expiration of the commitment period set forth in the applicable equipment
financing commitment, Secured Party may terminate its obligation to advance
funds as to the applicable Equipment.
8. LOCATION; INSPECTION; USE. Debtor will keep, or in the case of motor
vehicles, permanently garage and not remove from the United States, as
appropriate, each Item of Equipment in Debtor's possession and control at the
Equipment Location designated in the applicable Schedule, or at such other
location to which such Item of Equipment may have been moved with the prior
written consent of Secured Party. Whenever requested by Secured Party, Debtor
will advise Secured Party as to the exact location of an Item of Equipment.
Secured Party will have the right to inspect the Equipment and observe its use
during normal business hours and to enter into and upon the premises where the
Equipment may be located upon reasonable notice to Debtor, for such purpose.
The Equipment will at all times be used solely for commercial or business
purposes and operated in a careful and proper manner and in compliance with all
applicable laws, ordinances, rules and regulations, all conditions and
requirements of the policy or policies of insurance required to be carried by
Debtor under the terms of this Agreement and all manufacturer's instructions
and warranty requirements. Any modifications or additions to the Equipment
required by any such governmental edict or insurance policy will be promptly
made by Debtor.
9. ALTERATIONS; SECURITY INTEREST COVERAGE. Without the prior written consent
of Secured Party, Debtor will not make any alterations, additions or
improvements to any Item of Equipment which detract from its economic value or
functional utility, except as may be required pursuant to paragraph 8 above.
Secured Party's security interest in the Equipment will include all
modifications and additions thereto and replacements
<PAGE> 6
and substitutions therefor, in whole or in part. Such reference to replacements
and substitutions will not grant Debtor greater rights to replace or substitute
than are provided in paragraph 11 below or as may be allowed upon the prior
written consent of Secured Party.
10. MAINTENANCE. Debtor will maintain the Equipment in good repair, condition
and working order. Debtor also will cause each Item of Equipment for which a
service contract is generally available to the covered by such a contract which
provides coverages typical as to property of the type involved and is issued by
a competent servicing entity.
11. LOSS AND DAMAGE; CASUALTY VALUE. In the event of the loss of, theft of,
requisition of, damage to or destruction of an Item of Equipment ("Casualty
Occurrence") Debtor will give Secured Party prompt notice thereof and will
thereafter place such Item in good repair, condition and working order;
provided, however, that if such Item is determined by Secured Party to be lost,
stolen, destroyed or damaged beyond repair, is requisitioned or suffers a
constructive total loss as defined in any applicable insurance policy carried
by Debtor in accordance with paragraph 14 below, Debtor, at Secured Party's
option, will (a) replace the Item with like equipment in good repair, condition
and working order whereupon such replacement equipment will be deemed such Item
for all purposes hereof or (b) pay Secured Party the "Casualty Value" of such
Item which will equal the total of (i) all installment payments and other
amounts due from Debtor to Secured Party at the time of such payment and (ii)
each future installment payment due with respect to such Item with each such
payment other than any final uneven payment discounted at eight percent (8%)
per annum simple interest from the date due to the date of such payment. Any
final uneven payment will be due without discount. The discounting contemplated
in this paragraph will be in accordance with the Financial Compound Interest
and Annuity Tables, Sixth Edition published by the Financial Publishing
Company. Upon such replacement or payment, as appropriate, this Agreement and
Secured Party's security interest will terminate with, and only with, respect
to the Item of Equipment so replaced or as to which such payment is made in
accordance with paragraph 2 above.
12. TITLING; REGISTRATION. Each Item of Equipment subject to title registration
laws will at all times be titled and/or registered by Debtor as Secured Party's
agent and attorney-in-fact with full power and authority to register (but
without power to affect title to) the Equipment in such manner and in such
jurisdiction or jurisdictions as Secured Party directs. Debtor will promptly
notify Secured Party of any necessary or advisable retitling and/or
reregistration of an Item of Equipment in a jurisdiction other than one in which
such Item is then titled and/or registered. Any and all documents of title
will be furnished or caused to be furnished Secured Party by Debtor within
sixty (60) days of the date any titling or registering or retitling or
reregistering, as appropriate, is directed by Secured Party.
13. TAXES. Debtor will make all filings as to and pay when due all personal
property and other ad valorem taxes and all other taxes, fees, charges and
assessments based on the ownership or use of the Equipment and will pay as
directed by Secured Party or reimburse Secured Party for all taxes, including,
but not limited to, gross receipts taxes (exclusive of federal and state taxes
based on Secured Party's net income, unless such net income taxes are in
substitution for or relieve Debtor from any taxes which Debtor would otherwise
be obligated to pay under the terms of this paragraph 13), fees, charges and
assessments whatsoever, however designated, whether based on the installment
payments or other amounts due hereunder, levied, assessed or imposed upon the
Equipment or otherwise related hereto or to the Equipment, now or hereafter
levied, assessed or imposed under the authority of a federal, state or local
taxing jurisdiction, regardless of when and by whom payable. Filings with
respect to such other amounts will, at Secured Party's option, be made by
Secured Party or by Debtor as directed by Secured Party.
14. INSURANCE. Debtor will procure and continuously maintain all risk insurance
against loss of or damage to the Equipment from any cause whatsoever for not
less than the full replacement value thereof naming Secured Party as Loss Payee.
Such insurance must be in a form and with insurers as are customary for
businesses similar to Debtor's, must provide at least thirty (30) days advance
written notice to Secured Party of cancellation, change or modification in any
term, condition or amount of protection provided therein, must provide full
breach of warranty protection and must provide that the coverage is "primary
coverage" (does not require contribution from any other applicable coverage).
Debtor will provide Secured Party with an original policy or certificate
evidencing such insurance. In the event of an assignment of this Agreement by
Secured Party of which Debtor has notice, Debtor will cause such insurance to
provide the same protection to the assignee as its interest may appear. The
proceeds of such insurance, at the option of Secured Party or such assignee, as
appropriate, will be applied toward (a) the repair or replacement of the
appropriate Item or Items of Equipment, (b) payment of the Casualty Value
thereof or (c) payment of, or as provision for, satisfaction of any other
accrued obligations of Debtor hereunder. Debtor hereby appoints Secured Party
as Debtor's attorney-in-fact with full power and authority to do all things,
including, but not limited to, making claims, receiving payments and endorsing
documents, checks or drafts, necessary to secure payments due under any policy
contemplated hereby on account of a Casualty Occurrence. Debtor and Secured
Party contemplate that the jurisdictions where the Equipment will be located
will not impose any liability upon Secured Party for personal injury and/or
property damage resulting out of the possession, use, operation or condition of
the Equipment. In the event Secured Party determines that such is not or may
not be the case with respect to a given jurisdiction, Debtor will provide
Secured Party with public liability and property damage coverage applicable to
the Equipment in such amounts and in such form as Secured Party requires.
15. SECURED PARTY'S PAYMENT. If Debtor fails to pay any amounts due hereunder
or to perform any of its other obligations under this Agreement, Secured Party
may, at its option, but without any obligation to do so, pay such amounts or
perform such obligations, and Debtor will reimburse Secured Party the amount of
such payment or cost of such performance.
16. INDEMNITY. Debtor does hereby assume liability for and does agree to
indemnify, defend, protect, save and keep harmless Secured Party from and
against any and all liabilities, losses, damages, penalties, claims, actions,
suits, costs, expenses and disbursements, including court costs and legal
expenses, of whatever kind and nature, imposed on, incurred by or asserted
against Secured Party and not resulting from the gross negligence or willful
misconduct of Secured Party (whether or not also indemnified against by any
other person) in any way relating to or arising out of this Agreement or the
manufacture, financing, ownership, delivery, possession, use, operation,
condition or disposition of the Equipment by Secured Party or Debtor,
including, without limitation, any claim alleging latent and other defects,
whether or not discoverable by Secured Party or Debtor, and any other claim
arising out of strict liability in tort, whether or not in either instance
relating to an event occurring while Debtor remains obligated under this
Agreement, and any claim for patent, trademark or copyright infringement.
Debtor agrees to give Secured Party and Secured Party agrees to give Debtor
notice of any claim or liability hereby indemnified against promptly following
learning thereof.
17. DEFAULT. Any of the following will constitute an event of default here
under: (a) Debtor's failure to pay when due any installment payment or other
amount due hereunder, which failure continues for ten (10) days after the due
date thereof; (b) Debtor's default in performing any other obligation, term or
condition of this Agreement or any other agreement between Debtor and Secured
Party or default under any further agreement providing security for the
performance by Debtor of its obligations hereunder, provided such default has
continued for more than twenty (20) days, except as provided in (c) and (d)
hereinbelow, or, without limiting the generality of subparagraph (1)
hereinbelow, default under any lease or any mortgage or other instrument
contemplating the provision of financial accommodation applicable to the real
estate where an Item of Equipment is located; (c) any writ or order of
attachment or execution or other legal process being levied on or charged
against any Item of Equipment and not being released or satisfied within
forty-five (45) days; (d) Debtor's failure to comply with its obligations under
paragraph 14 above or any transfer by Debtor in violation of paragraph 21 below;
(e) a non-appealable judgment for the payment of money in excess of $100,000
being rendered by a court of record against Debtor which Debtor does not
discharge or make provision for discharge in accordance with the terms thereof
within ninety (90) days from the date of entry thereof; (f) death or judicial
declaration of incompetency of Debtor, if an individual; (g) the filing by
Debtor of a petition under the Bankruptcy Act or any amendment thereto or under
any other insolvency law or law providing for the relief of debtors, including,
without limitation, a petition for reorganization, arrangement or extension, or
the commission by Debtor of an act of bankruptcy; (h) the filing against Debtor
of any such petition not dismissed or permanently stayed within (60) days of the
filing thereof; (i) the voluntary or involuntary making of an assignment of
substantial portion of its assets by Debtor for the benefit of creditors,
appointment of a receiver or trustee for Debtor or for any of Debtor's assets,
institution by or against Debtor
2
<PAGE> 7
or any other type of insolvency proceeding (under the Bankruptcy Code or
otherwise) or of any formal or informal proceeding for dissolution,
liquidation, settlement of claims against or winding up of the affairs of
Debtor, Debtor's cessation of business activities or the making by Debtor of a
transfer of all or a material portion of Debtor's assets or inventory not in
the ordinary course of business; (j) the occurrence of any event described in
parts (e), (f), (g), (h) or (i) hereinabove with respect to any guarantor or
other party liable for payment or performance of this Agreement; (k) any
certificate statement, representation, warranty or audit heretofore or
hereafter furnished with respect hereto by or on behalf of Debtor or any
guarantor or other party liable for payment or performance of this Agreement
proving to have been false in any material respect at the time as of which the
facts therein set forth were stated or certified or having omitted any
substantial contingent or unliquidated liability or claim against Debtor or any
such guarantor or other party; (l) breach by Debtor of any lease or agreement
providing financial accommodation under which Debtor or its property is bound
or (m) a transfer of effective control of Debtor, if an organization.
18. REMEDIES. Upon the occurrence of an event of default, Secured Party will
have the rights, options, duties and remedies of a secured party, and Debtor
will have the rights and duties of a debtor, under the Uniform Commercial Code
(regardless of whether such Code or a law similar thereto has been enacted in a
jurisdiction wherein the rights or remedies are asserted) and, without limiting
the foregoing, Secured Party may exercise any one or more of the following
remedies: (a) declare the Casualty Value or such lesser amount as may be set by
law immediately due and payable with respect to any or all Items of Equipment
without notice or demand to Debtor; (b) sue from time to time for and recover
all installment payments and other payments then accrued and which accrue
during the pendency of such action with respect to any or all Items of
Equipment; (c) take possession of and, if deemed appropriate, render unusable
any or all Items of Equipment, without demand or notice, wherever same may be
located, without any court order or other process of law and without liability
for any damages occasioned by such taking of possession and remove, keep and
store the same or use and operate or lease the same until sold; (d) require
Debtor to assemble any or all Items of Equipment at the Equipment Location
therefor, such location to which such Equipment may have been moved with the
written consent of Secured Party or such other location in reasonable proximity
to either of the foregoing as Secured Party designates; (e) upon ten days
notice to Debtor or such other notice as may be required by law, sell or
otherwise dispose of any Item of Equipment, whether or not in Secured Party's
possession, in a commercially reasonable manner at public or private sale at
any place deemed appropriate and apply the net proceeds of such sale, after
deducting all costs of such sale, including, but not limited to, costs of
transportation, repossession, storage, refurbishing, advertising and broker's
fees, to the obligations of Debtor to Secured Party hereunder or otherwise,
with Debtor remaining liable for any deficiency and with any excess being
returned to Debtor; (f) upon thirty (30) days notice to Debtor, retain any
repossessed or assembled Items of Equipment as Secured Party's own property in
full satisfaction of Debtor's liability for the installment payments due
hereunder with respect thereto, provided that Debtor will have the right to
redeem such Items by payment in full of its obligations to Secured Party
hereunder or otherwise or to require Secured Party to sell or otherwise dispose
of such Items in the manner set forth in subparagraph (e) hereinabove upon
notice to Secured Party within such thirty (30) day period or (g) utilize any
other remedy available to Secured Party under the Uniform Commercial Code or
similar provision of law or otherwise at law or in equity.
No right or remedy conferred herein is exclusive of any other right or remedy
conferred herein or by law; but all such remedies are cumulative of every other
right or remedy conferred hereunder or at law or in equity, by statute or
otherwise, and may be exercised concurrently or separately from time to time.
Any sale contemplated by subparagraph (e) of this paragraph 18 may be adjourned
from time to time by announcement at the time and place appointed for such
sale, or for any such adjourned sale, without further published notice, and
Secured Party may bid and become the purchaser at any such sale. Any sale of
an Item of Equipment, whether under said subparagraph or by virtue of judicial
proceedings, will operate to divest all right, title, interest, claim and
demand whatsoever, either at law or in equity, of Debtor in and to said Item
and will be a perpetual bar to any claim against such Item, both at law and in
equity, against Debtor and all persons claiming by, through or under Debtor.
19. DISCONTINUANCE OF REMEDIES. If Secured Party proceeds to enforce any right
under this Agreement and such proceedings are discontinued or abandoned for any
reason or are determined adversely, then and in every such case Debtor and
Secured Party will be restored to their former positions and rights thereunder.
20. SECURED PARTY'S EXPENSES. Debtor will pay Secured Party all costs and
expenses, including reasonable attorney's fees and court costs and sales costs
not offset against sales proceeds under paragraph 18 above, incurred by Secured
Party in exercising any of its rights or remedies hereunder or enforcing any of
the terms, conditions or provisions hereof. This obligation includes the
payment or reimbursement of all such amounts whether an action is ultimately
filed and whether an action filed is ultimately dismissed.
21. ASSIGNMENT. Without the prior written consent of Secured Party, Debtor will
not sell, lease, pledge or hypothecate, except as provided in this Agreement, an
Item of Equipment or any interest therein or assign, transfer, pledge or
hypothecate this Agreement or any interest in this Agreement or permit the
Equipment to be subject to any lien, charge or encumbrance of any nature except
the security interest of Secured Party contemplated hereby. Debtor's interest
herein is not assignable and will not be assigned or transferred by operation
of law. Consent to any of the foregoing prohibited acts applies only in the
given instance and is not a consent to any subsequent like act by Debtor or any
person.
All rights of Secured Party hereunder may be assigned, pledged, mortgaged,
transferred or otherwise disposed of, either in whole or in part, without
notice to Debtor but always, however, subject to the rights of Debtor under
this Agreement. If Debtor is given notice of any such assignment, Debtor will
acknowledge receipt thereof in writing. In the event Secured Party assigns this
Agreement or the installment payments due or to become due hereunder or any
other interest herein, whether as security for any of its indebtedness or
otherwise, no breach or default by Secured Party hereunder or pursuant to any
other agreement between Secured Party and Debtor, should there be one, will
excuse performance by Debtor of any provision hereof, it being understood that
in the event of such default or breach by Secured Party that Debtor will pursue
any rights on account thereof solely against Secured Party. No such assignee,
unless such assignee agrees in writing, will be obligated to perform any duty,
covenant or condition required to be performed by Secured Party in connection
with this Agreement.
Subject always to the foregoing, this Agreement insures to the benefit of, and
is binding upon, the heirs, legatees, personal representatives, successors and
assigns of the parties hereto.
22. MARKINGS; PERSONAL PROPERTY. If Secured Party supplies Debtor with labels,
plates, decals or other markings stating that Secured Party has an interest in
the Equipment, Debtor will affix and keep the same prominently displayed on the
Equipment or will otherwise make the Equipment or its then location or
locations, as appropriate, at Secured Party's request to indicate Secured
Party's security interest in the Equipment. The Equipment is, and at all times
will remain, personal property notwithstanding that the Equipment or any Item
thereof may now be, or hereafter become, in any manner affixed or attached to,
or embedded in, or permanently resting upon real property or any improvement
thereof or attached in any manner to what is permanent as by means of cement,
plaster, nails, bolts, screws or otherwise. If requested by Secured Party,
Debtor will obtain and deliver to Secured Party waivers of interest or liens in
recordable form satisfactory to Secured Party from all persons claiming any
interest in the real property on which an Item of Equipment is or is to be
installed or located.
23. LATE CHARGE. If Debtor fails to pay any installment payment or any other
sum to be paid by Debtor to Secured Party when due, Debtor will pay to Secured
Party (a) a late charge equal to 5% of the installment payment, (b) Secured
Party's collection costs paid third parties relevant to the collection thereof
and (c) interest on such unpaid installment or other amount at the rate of
eighteen percent (18%) per annum, or at such greater or lesser contract rate as
may be applicable, computed from the date due to the date paid.
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<PAGE> 8
24. NON-WAIVER. No covenant or condition of this Agreement can be waived
except by the written consent of Secured Party. Forbearance or indulgence by
Secured Party in regard to any breach hereunder will not constitute a waiver of
the related covenant or condition to be performed by Debtor.
25. ADDITIONAL DOCUMENTS. In connection with and in order to perfect and
evidence the security interest in the Equipment granted Secured Party hereunder
Debtor will execute and deliver to Secured Party such financing statements and
similar documents as Secured Party reasonably requests. Debtor authorizes
Secured Party where permitted by law to make filings of such financing
statements without Debtor's signature. Debtor further will furnish Secured
Party (a) a fiscal year end financial statement including balance sheet and
profit and loss statement within one hundred twenty (120) days of the close of
each fiscal year, (b) any other information normally provided by Debtor to the
public and (c) such other financial data or information relative to this
Agreement and the Equipment, including, without limitation, copies of vendor
proposals and purchase orders and agreements, listings of serial numbers or
other identification data and confirmations of such information, as Secured
Party may from time to time reasonably request. Debtor will procure and/or
execute, have executed, acknowledge, have acknowledged, deliver to Secured
Party, record and file such other documents and showings as Secured Party deems
necessary or desirable to protect its interest in and rights under this
Agreement and interest in the Equipment. Debtor will pay as directed by Secured
Party or reimburse Secured Party for all filing, search, title report, legal
and other fees incurred by Secured Party in connection with any documents to be
provided by Debtor pursuant to this paragraph or paragraph 22 and any further
similar documents Secured Party may procure.
26. DEBTOR'S WARRANTIES. Debtor certifies and warrants that the financial data
and other information which Debtor has submitted, or will submit, to Secured
Party in connection with this Agreement is, or will be at time of delivery, as
appropriate, a true and complete statement of the matters therein contained.
Debtor further certifies and warrants that (a) this Agreement has been duly
authorized by Debtor and when executed and delivered by the person signing on
behalf of Debtor below will constitute the legal, valid and binding obligation,
contract and agreement of Debtor enforceable against Debtor in accordance with
its respective terms; (b) this Agreement and each and every showing provided by
or on behalf of Debtor in connection herewith may be relied upon by Secured
Party in accordance with the terms thereof notwithstanding the failure of
Debtor or other applicable party to ensure proper attestation thereto, whether
by absence of a seal or acknowledgment or otherwise; (c) Debtor has the right,
power and authority to grant a security interest in the Equipment to Secured
Party for the uses and purposes herein set forth and (d) each Item of Equipment
will, at the time such Item becomes subject hereto, be in good repair,
condition and working order.
27. ENTIRE AGREEMENT. This Agreement, the Equipment Financing Commitment and
Exhibit A thereto, the Schedule to Equipment Financing Agreement, the
Disbursement Authorization, the Corporate Resolution, the UCC Form 1, the
proposal from Secured Party to Debtor dated February 24, 2000 and executed by
Debtor on March 2, 2000 and any and all other documents referenced in any of
the foregoing documents, and any and all other documents and agreements
executed by Debtor in connection with the equipment financing constitute
together the entire agreement between Secured Party and Debtor. Neither this
Agreement, nor any of the other documents constituting the entire agreement
between the parties can be modified or amended in any way except by written
agreement signed and dated by both Secured Party and Debtor.
28. NOTICES. Notices under this Agreement must be in writing and must be
mailed by United States mail, certified mail with return receipt requested,
duly addressed, with postage prepaid, to the party involved at its respective
address set forth at the foot hereof or at such other address as such party may
provide on notice to the other from time to time. Notices will be effective
when deposited. Each party will promptly notify the other of any change in the
first party's address.
29. GENDER; NUMBER; JOINT AND SEVERAL LIABILITY. Whenever the context of this
Agreement requires, the neuter gender includes the feminine or masculine and
the singular number includes the plural; and whenever the words "Secured Party"
are used herein, they include all assignees of Secured Party, it being
understood that specific reference to "assignee" in paragraph 14 above is for
further emphasis. If there is more than one Debtor named in this Agreement, the
liability of each will be joint and several.
30. TITLES. The titles to the paragraphs of this Agreement are solely for the
convenience of the parties and are not an aid in the interpretation of the
instrument.
31. GOVERNING LAW; VENUE. This Agreement will be governed and construed in
accordance with the law of the State of California. Venue for any action
related to this Agreement will be in an appropriate court in Santa Clara
County, California, to which Debtor consents, or in another court selected by
Secured Party which has jurisdiction over the parties. In the event any
provision hereof is declared invalid, such provision will be deemed severable
from the remaining provisions of this Agreement which will remain in full force
and effect.
32. TIME. Time is of the essence of this Agreement and each and all of its
provisions.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of 3/28/00.
PENTECH FINANCIAL SERVICES, INC (Secured Party) (Debtor)
By: By: /s/ Martin H. Goldstein
---------------------------- ------------------------
Benjamin E. Millerbis Name: Martin H. Goldstein
Title: President Title: President
Address: 310 West Hamilton Ave. Suite 202 Address: 270 E. Grand Ave.
Campbell, CA 95008 S. San Francisco, CA 94080
4
<PAGE> 9
PENTECH FINANCIAL SERVICES, INC.
EQUIPMENT FINANCING COMMITMENT
EQUIPMENT FINANCING AGREEMENT No. 200371 with Effective date of 3/28/00
Subject to the terms set forth in this commitment, the following equipment
financing transaction is agreed to by ("Debtor") and PENTECH FINANCIAL
SERVICES, INC. ("Secured Party") as part of the Equipment Financing Agreement
herein referenced (the "Agreement"). The terms set out herein are hereby made a
part of and incorporated into the Equipment Financing Agreement as fully as
though set forth at length therein.
EQUIPMENT (ALL EQUIPMENT TO BE ACCEPTABLE TO SECURED PARTY): The equipment may
include: computers, test equipment, office furniture and other
related equipment to be approved by Lender. A percentage equal to
20% of line amount (but not more than 25% of any individual
schedule) may be used for "soft cost" exclusions listed below.
Exclusions: Custom use equipment, software, installation
and delivery costs, purchase tax, tooling equipment, tenant
improvements and items generally considered fungible or
expendable.
COMMITMENT AMOUNT: $1,250,000
INSTALLMENT PAYMENTS: 36 payments of 3.190% (the "Monthly Rate Factor") of
advance amount payable monthly in advance, plus a final payment equal to 11% of
the advance amount.
Rate Adjustment. The Monthly Rate Factor will be indexed to the thirty
(30) day London Inter Bank Offer Rate ("LIBOR") (the "Index Instrument")
effective on the date of the proposal of 5.78125% (Wall Street Journal dated
January 14, 2000). The Monthly Rate Factor shall be adjusted to provide for any
increase or decrease, with a floor of 5.78125%. At the Commencement Date of
each Schedule, the Monthly Rate Factor shall be fixed for the initial term of
such Schedule.
First such payments are due at time of scheduling.
COMMITMENT EXPIRATION DATE:
As more fully explained below, Secured Party has no obligation to make any
advance with respect to Equipment not covered by a Schedule to the Agreement
executed by Secured Party and Debtor on or prior to the Commitment Expiration
Date.
Debtor will comply with, procure, execute and/or have executed,
acknowledge, have acknowledged, deliver to Secured Party, record and file any
documents set forth in Exhibit A or accompanying this commitment. The form,
substance and sufficiency of all documents and showings employed in documenting
the contemplated financing transaction must be acceptable to Secured Party and
its counsel. Debtor will do likewise as to such further documents and showings
as Secured Party and its counsel may now or hereafter deem necessary or
advisable to protect Secured Party's rights under the Agreement, and to protect
its interest in the Equipment. Debtor will pay as directed by Secured Party or
reimburse Secured Party for all searches, filings, title reports, attorney's
services and other charges incurred by Secured Party in connection with all
such documents and showings and any similar documents and showings Secured
Party may procure.
Secured Party may, at its option, terminate its obligations to Debtor
hereunder with respect to any and all unscheduled Items of Equipment: (a) at or
subsequent to the Commitment Expiration Date, (b) upon the advent of a material
adverse change in Debtor's financial condition or Debtor's probable ability to
perform its obligations under the Agreement, (c) if the Agreement or any other
agreement under which Debtor has obligations to Secured Party is in default or
an event which with the giving of notice or lapse of time or both would
constitute such a default has occurred and is continuing or (d) with respect to
which more than fifteen percent (15%) would be advanced for shipping costs,
installation charges and design costs by giving Debtor written notice of such
termination.
ACCEPTED AND AGREED to as of 3/28/00
SECURED PARTY: DEBTOR:
PENTECH FINANCIAL SERVICES, INC. VIROLOGIC, INC.
a California corporation a Delaware corporation
By: By: /s/ Martin H. Goldstein
----------------------------- -----------------------------
Benjamin E. Millerbis
Name: Martin H. Goldstein
Title: President ---------------------------
Address: 310 West Hamilton Avenue, Title: President
Suite 202 --------------------------
Campbell, CA 95008
Address: 290 E. Grand Ave.
S. San Francisco, CA 94080
<PAGE> 10
EXHIBIT A TO EQUIPMENT FINANCING COMMITMENT
These provisions hereby become part of the Equipment Financing Commitment
between PENTECH FINANCIAL SERVICES, INC., Secured Party, and VIROLOGIC, INC.,
Debtor., with Effective Date of 3/28/00.
In addition to the terms of the Agreement, Debtor further agrees to the
following additional provisions:
1. UCC SEARCH/RELEASES
The Secured Party may search all public records of Debtor to locate and
identify any conflicting liens against the above referenced Equipment. Releases
from any intervening parties holding a security interest in said Equipment
shall be required prior to funding provided herein.
2. TYPE OF FINANCING
This is a net equipment financing transaction whereby maintenance,
insurance, property taxes, and all items of a similar nature are for the
account of the Debtor.
3. EXPENSES
All expenses associated with the completion of this Agreement including,
but not limited to, UCC filing fees and searches, documentation costs, legal
expenses, and equipment verification costs are for the account of the debtor,
provided that such expenses shall not exceed $5,000 in the aggregate for all
schedules.
4. MASTER AGREEMENT
This is a Master Equipment Financing Agreement whereby Schedules may be
funded as equipment is delivered, or upon request of Debtor. Schedules
scheduling Equipment to be subject to the Equipment Financing Agreement will
each be for the term and on the conditions set out therein. No individual
Schedule shall be for less than $50,000.
5. COMMITMENT EXPIRATION DATE
The commitment expiration date of December 31, 2000 may be extended, upon
such terms and under such conditions as deemed appropriate in Secured Party's
sole discretion, upon review by Secured Party of the Debtor's then current
financial condition, and any other information Secured Party may reasonably
request to evaluate Debtor's financial condition for purposes of granting such
extension. Debtor agrees to provide Security Party such information as may be
requested by Secured Party for such purpose.
6. COMMITMENT FEE DEPOSIT
Debtor shall provide Secured Party a $12,500 commitment fee deposit,
receipt of which is hereby acknowledged. This deposit shall be applied
proportionally to the advance payments due for each Schedule funded under this
Agreement. Any unapplied balance as of the commitment expiration date may be
retained by Secured Party.
7. MONTHLY FINANCIAL STATEMENTS
Debtor agrees to provide Secured Party with Debtor's internally prepared
financial statements on an ongoing basis as soon as practicable after the close
of each month of Debtor's fiscal year. Upon request by Secured Party, Debtor
also agrees to provide any other pertinent and reasonable information as
Secured Party may deem necessary to evaluate Debtor's present or future
financial condition.
8. ANNUAL FINANCIAL STATEMENTS
Debtor agrees to provide Secured Party the Debtor's annual financial
statements within 120 days of the close of Debtor's fiscal year end.
9. SCHEDULES
There shall be Schedule(s) to the Agreement, each of which shall cover
equipment with a minimum aggregate cost of $50,000.00, all of which together
shall cover equipment with a maximum aggregate cost of $300,000.
A percentage equal to 20% of the line amount (but not more than 25% of any
individual schedule) may be used for "soft cost" exclusions listed below.
Exclusions: Custom use equipment, installation and delivery costs,
purchase tax, tooling equipment, tenant improvements, software and items
generally considered fungible or expendable.
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<PAGE> 11
PENTECH FINANCIAL SERVICES, INC.
Lease No. 300601
MASTER EQUIPMENT LEASE
This is a Master Equipment Lease between PENTECH FINANCIAL SERVICES, INC., a
California corporation, whose principal office is located at 310 West Hamilton
Avenue, Suite 202, Campbell, California 95008 ("Lessor") and VIROLOGIC, INC., a
Delaware corporation, whose principal office address is 270 East Grand Avenue,
South San Francisco, California 94080 ("Lessee"), with effective date of
3/28/00 ("Effective Date").
1. LEASE. Lessor agrees to lease to Lessee and Lessee agrees to lease from
Lessor, subject to the terms and conditions of this Master Equipment Lease
("Lease"), the personal property ("Equipment") described in each Acceptance
Supplement ("Supplement") executed and delivered by Lessor and Lessee pursuant
to the terms of this Lease. Each Supplement shall be in the form prescribed by
Lessor and, upon execution and delivery, shall constitute a part of this Lease
to the same extent as if the provisions thereof were set forth in full in this
Lease document; the terms "Agreement", "hereof", "herein", and "thereunder",
when used in this Lease shall mean this Lease, each Supplement and each Schedule
as hereinafter defined. This Agreement constitutes an agreement to lease.
Ownership of the Equipment remains with Lessor and nothing herein contained
shall be construed as convoying to Lessee any right, title or interest in the
equipment except as a Lessee only.
2. SELECTION OF EQUIPMENT. Lessee acknowledges that it has selected the type,
quantity and supplier of the Equipment referred to herein and that it has
requested Lessor to purchase the same for leasing to Lessee. Lessee agrees that
the Equipment and each part or unit thereof is of a design, size, quality and
capacity required by Lessee and is suitable for its purposes. Lessee
acknowledges that Lessor has informed or advised Lessee, in writing either
previously or by this Lease, of the following: (i) the identity of the
supplier; (ii) that the Lessee may have rights under the Supply Contract; and
(iii) that the Lessee may contact the supplier for a description of any such
rights Lessee may have under the Supply Contract. Lessor hereby assigns to
Lessee all rights which Lessor has or may acquire against any manufacturer,
supplier, or contractor with respect to any warranty or representation relating
to the Equipment leased hereunder.
3. EQUIPMENT TO REMAIN PERSONAL PROPERTY; LOCATION, IDENTIFICATION; INSPECTION.
Lessee represents that the Equipment shall be and at all times remain
separately identifiable personal property. Lessee shall, at its own expense,
take such action as may be necessary to prevent any third party from acquiring
any right to or interest in the Equipment by virtue of the Equipment being
deemed to be real property or a part of other personal property, and shall
indemnify Lessor against any loss which it may sustain by reason of Lessee's
failure to do so. The Equipment may not be removed from the location specified
in the Supplement pertaining thereto without Lessor's prior written consent. If
requested by Lessor, Lessee shall attach to and maintain on each item of
Equipment a conspicuous plate or marking disclosing Lessor's ownership thereof.
Lessor or its representatives may, after reasonable notice to Lessee, inspect
the Equipment during normal business hours. Lessee shall promptly advise Lessor
of any circumstances which may materially affect any item of Equipment or in
any manner affect Lessor's title thereto.
4. EXECUTION OF FURTHER DOCUMENTATION. Lessee will, at its own expense,
promptly execute and deliver to Lessor such further documentation and
assurances and take such further action as Lessor may from time to time
reasonably require in order to more effectively carry out the intent and
purpose of this Agreement so as to establish and protect the rights, interests
and remedies intended to be created in favor of Lessor hereunder, including,
without limitation, the execution and filing of financing statements and
continuation statements with respect to the Equipment and Agreement. Lessee
authorizes Lessor to effect any such filing (including the filing of any
financing statements without the signature of Lessee). Any and all reasonable
expenses incurred by Lessor in connection with any filings under this paragraph
shall be payable by Lessee on demand.
5. DISCLAIMER OF IMPLIED WARRANTIES. THE EQUIPMENT WILL BE LEASED "AS IS" AND
"WHERE IS". (A) OTHER THAN THE WARRANTY OF QUIET ENJOYMENT, THE LESSOR HAS NOT
MADE, MAY NOT BE CONSIDERED TO HAVE MADE, AND SPECIFICALLY DISCLAIMS,:
(1) ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY WITH RESPECT TO THE
EQUIPMENT, REGARDING TITLE, CONDITION, DESIGN, OPERATION, MERCHANTABILITY,
FREEDOM FROM CLAIMS OF INFRINGEMENT OR THE LIKE, FITNESS FOR USE FOR A
PARTICULAR PURPOSE, QUALITY OF MATERIALS OR WORKMANSHIP, ABSENCE OF
DISCOVERABLE OR NONDISCOVERABLE DEFECTS, OR THAT THE EQUIPMENT IS IN COMPLIANCE
WITH ANY APPLICABLE GOVERNMENT REQUIREMENTS OR REGULATIONS; AND
(2) ANY OTHER EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY WITH RESPECT TO THE
EQUIPMENT (INCLUDING ANY IMPLIED WARRANTY ARISING FROM A COURSE OF PERFORMANCE,
COURSE OF DEALING, OR USAGE OF TRADE); AND
(3) ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY REGARDING THE
CHARACTERIZATION OF THIS LEASE FOR TAX, ACCOUNTING OR OTHER PURPOSES.
THE LESSEE WAIVES, RELEASES, RENOUNCES, AND DISCLAIMS EXPECTATION OF OR
RELIANCE ON ANY SUCH WARRANTY OR WARRANTIES.
(B) THE LESSOR WILL NOT HAVE ANY RESPONSIBILITY OR LIABILITY TO THE LESSEE OR
ANY OTHER PERSON, WHETHER IN CONTRACT OR TORT, ARISING OUT OF ANY ORDINARY
NEGLIGENCE OR STRICT LIABILITY OF THE LESSOR OR OTHERWISE, FOR:
(1) ANY LIABILITY, LOSS, OR DAMAGE CAUSED OR ALLEGED TO BE CAUSED DIRECTLY OR
INDIRECTLY BY THE EQUIPMENT; BY ANY INADEQUACY, DEFICIENCY OR DEFECT OF THE
EQUIPMENT; OR BY ANY OTHER CIRCUMSTANCES IN CONNECTION WITH THIS LEASE;
(2) THE USE, OPERATION, OR PERFORMANCE OF THE EQUIPMENT OR ANY RISKS RELATING
TO IT;
(3) ANY CONSEQUENTIAL DAMAGES, INCLUDING THOSE FOR INTERRUPTION OF SERVICE,
LOSS OF BUSINESS, OR ANTICIPATED PROFITS; OR
(4) THE DELIVERY, OPERATION, MAINTENANCE, REPAIR, IMPROVEMENT, OR REPLACEMENT
OF THE EQUIPMENT.
6. TERM; ACCEPTANCE; RENT; RETURN. The term of lease of each item of Equipment
shall commence on the Commencement Date specified in the Supplement pertaining
to such Equipment and, unless earlier terminated pursuant to the provisions
hereof, shall continue for the term specified in such Supplement. Lessee's
execution and deliver of each Supplement shall constitute Lessee's irrevocable
acceptance of the equipment covered thereby for all purposes of this Agreement.
Lessee shall pay to Lessor, at the addresses specified above or at such other
address as may be provided by Lessor from time to time, rent as specified in
each Supplement. Each date on which an installment of rent is payable is
designated herein as "Rent Payment Date". As to each Supplement, the first Rent
Payment Date shall be the Rent Payment Date set forth therein, with the
succeeding Rent payment Date on the corresponding day of each month thereafter.
In addition, if applicable, Lessee shall pay interim rent for the period
between the actual commencement of the rent under each Supplement and the date
designated as the Rent Payment Date, based on a 30 day month and the number of
days between the actual commencement date and the first Rent Payment Date.
Should any payment not be made by Lessee within 5 business days after the
applicable Rent Payment Date, Lessor shall be entitled to a late payment charge
in addition to the actual rent due of 5% of the late rent and any other amount
due but unpaid under this Agreement. Upon the expiration or earlier termination
of the term of lease of each item of Equipment leased thereunder, Lessee shall
at its own expense return such item to Lessor at such location as Lessor may
designate, in the condition required to be maintained by Paragraph 9 hereof.
7. LESSEE'S OBLIGATIONS IRREVOCABLE. The Lessee's obligation to pay all rent
will be absolute and unconditional and, subject to Lessee's right of quiet
enjoyment to the Equipment, will not be affected or reduced by any
circumstance, including:
(1) Any setoff, counterclaim, recoupment, defense, or other right that the
Lessee may have for any reason against the Lessor, the manufacturer, any seller
of the Equipment, or any person providing services with respect to the
Equipment;
(2) Any defect in the title, condition, design, operation, or fitness for use
of the Equipment; any damage to, or loss or destruction of, the Equipment; or
any interruption or cessation in its use or possession by the Lessee for any
reason, whether arising out of or related to an act or omission of the Lessor
or any other person;
(3) Any items with respect to the Equipment;
(4) The invalidity or unenforceability of this Agreement or any absence of
right, power or authority of the Lessor or Lessee to enter into this lease;
1
<PAGE> 12
(5) Any insolvency, bankruptcy, reorganization, or similar proceedings by or
against the Lessor or Lessee; or
(6) Any other circumstance or occurrence of any nature, whether or not similar
to any of the foregoing.
It is the express intention of the Lessor and Lessee that all rent payable
under this Agreement will be payable in all events, unless the obligation to
pay is terminated under the express provisions of this Agreement.
The Lessee hereby waives, to the extent permitted by law, all rights that it
may now have or later acquire, by order or otherwise, to terminate this
Agreement or any obligation imposed on the Lessee in relation to this Agreement.
Nothing in this Agreement may be construed as a waiver of the Lessee's right to
seek a separate recovery of any payment of rent that is not due and payable
under this Agreement. The Lessee retains any right it may have to seek damages,
specific performance, or any other remedy at law or in equity, separately or in
combination, against the Lessor or any other person, on account of the Lessor's
or other person's failure to perform its obligations under this Agreement.
8. RESTRICTIONS ON TRANSFER. THE LESSEE MAY NOT SUBLET OR TRANSFER POSSESSION
OF THE EQUIPMENT WITHOUT THE PRIOR WRITTEN CONSENT OF THE LESSOR WHICH WILL NOT
BE UNREASONABLY WITHHELD. THE LESSEE MAY NOT ASSIGN, PLEDGE, OR OTHERWISE
ENCUMBER THIS LEASE.
With respect to any sublease or transfer of possession of the Equipment, the
rights of the sublessee or transferee will be subject and subordinate to all
the terms of this Agreement, including the Lessor's right of repossession on
the occurrence of an event of default. The Lessee will remain primarily liable
for the performance of all the terms of this Agreement to the same extent as if
the sublease or transfer of possession had not occurred.
The Lessor will have the right, at its sole expense, to assign, sell, or
encumber any part of its interest in the Equipment or in this Agreement and any
proceeds of the disposition of that interest, subject to the Lessee's rights
under this lease. To effect or facilitate such assignment, sale or encumbrance,
the Lessee agrees to provide all agreements, consents, conveyances or documents
that may be reasonably requested by the Lessor, including an unrestricted
release of the Lessor from its obligations under this Agreement. That release
will not release the Lessor from any liability that arose before the assignment
or sale.
Any person who succeeds to the rights and interests of the Lessor under this
clause will agree to be bound by the terms of this Agreement without alteration.
The Lessee acknowledges that an assignment, sale, or encumbrance of the Lessor's
interest would not materially change the Lessee's duties under the Agreement or
materially increase its burdens or risks. Even if such a transfer could be
deemed to have that effect, the Lessee agrees that the assignment, sale or
encumbrance will nevertheless be permitted.
Without prejudice to any rights that the Lessee may have against the Lessor,
the Lessee agrees that it will not assert against an assignee any claim or
defense that it may have against the Lessor.
The agreements, covenants, obligations and liabilities contained in this
clause, including but not limited to, all obligations to pay rent and to
indemnify each indemnitee, are made for the benefit of the indemnities and
their respective successors and assigns.
9. MAINTENANCE COVENANT. The Lessee will:
(1) Furnish all labor and parts required for maintaining, repairing, and
replacing component parts of the Equipment to keep it in good operating
condition and appearance;
(2) Use, operate, maintain, and store the Equipment in a careful and proper
manner;
(3) Protect the Equipment from deterioration;
(4) Comply with the manufacturer's operating procedures and warranty
restrictions and all laws, ordinances, and regulations applicable to the
Equipment or its use and in compliance with the insurance policies required to
be maintained thereunder;
(5) Put the Equipment only to the use contemplated by the manufacturer; and
(6) Maintain accurate and complete records of all repairs and maintenance of
the Equipment and allow the Lessor to inspect those records at any time.
(7) Comply with the maintenance requirements of any maintenance schedule
recommended by the manufacturer or attached as a part of this agreement.
The Lessee will not make any alterations, additions, or improvements to the
Equipment without the Lessor's prior written consent. All repairs, replacement
parts, additions, alterations, and improvements made to the Equipment by the
Lessee will be considered to be the Lessor's property and subject to the terms
of this Agreement.
10. RISK OF LOSS COVENANT. The Lessee will bear the entire risk of
destruction, loss, theft, regulation of title, or use, confiscation, taking, or
damage (collectively, casualty loss) of the Equipment from any cause during the
period commencing when the Equipment is placed in transit to the Lessee and
ending when the Equipment is returned to the Lessor or its designee following
termination as provided herein. If during that period the Equipment suffers any
casualty loss, the Lessee will notify the Lessor in writing within five days
following the casualty loss. On demand by the Lessor, the Lessee will:
(1) If the damage constituting the casualty loss is repairable, repair the
Equipment to the condition in which the Equipment is required to be maintained
under this Agreement;
(2) If the damaged Equipment is not repairable, replace the Equipment at the
Lessee's sole expense with like Equipment approved by the Lessor and take all
actions and make all payments that may be required to vest in the Lessor title
to the replacement Equipment, free and clear of all liens, encumbrances, or
security interests; or
(3) Pay to the Lessor the casualty value (as defined below) and all other
amounts then due under this Agreement.
"Casualty value" is, at any given date, the stipulated loss value as shown on
the applicable Schedule to each Supplement, and is computed to be the sum of:
(1) The discounted value at that time, of the aggregate unpaid monthly rent
payments to be paid through the then remaining term of this Agreement,
discounting that amount at an annual discount rate of 8 percent; and
(2) The Lessor's reasonable estimate, at that time, of the fair market value of
the Equipment at the end of the term of this Agreement, discounted at an annual
discount rate of 8 percent.
11. INSURANCE. Lessee shall maintain at all times on the equipment, at
Lessee's expense, property damage, direct damage, and liability insurance in
such amounts, against such risks, and in such form and with such insurers as
are customary for businesses substantially similar to Lessee's. The required
insurance shall be as specified in the applicable Supplement; provided,
however, that the amount of direct damage insurance shall not on any date be
less than the greater of the full replacement value or the Stipulated Loss
Value of the Equipment as of such date. Each insurance policy will name Lessor
as additional insured and as loss payee, and shall contain a clause requiring
the insurer to give to Lessor at least 30 days prior written notice of any
alteration in or cancellation of the terms of such policy. Lessee shall furnish
to Lessor a certificate or other evidence satisfactory to Lessor that such
insurance coverage is in effect, provided, however, that Lessor shall be under
no duty to ascertain the existence or adequacy of such insurance.
12. TAXES; INDEMNITY. Lessee agrees to pay, and to indemnify and hold Lessor
harmless from, all license fees, assessments, and sales, use, property, excise,
and other taxes and charges (other than federal income taxes and taxes imposed
by any other jurisdiction which are based on, or measured by, the net income of
Lessor for reasons other than the ownership or leasing of the Equipment in such
jurisdiction) imposed upon or with respect to (a) the Equipment or any part
thereof arising out of or in connection with the shipment of Equipment or the
possession, ownership, use or operation thereof, or (b) this Agreement or the
consummation of the transactions herein contemplated. The agreements and
indemnities contained in this paragraph shall survive the expiration or earlier
termination of this Agreement.
13. DEPRECIATION INDEMNITY.
(1) Lessor, as the owner of the Equipment, shall be entitled to such
deductions, credits and other benefits as are provided by the Internal Revenue
Code of 1985, as amended (IRC), to an owner of property.
(2) Lessee agrees that neither it nor any corporation controlled by it, in
control of it, or under common control with it, directly or indirectly, will at
any time take any action or file any returns or other documents inconsistent
with the foregoing and that each of such corporations will file such returns,
take such action, and execute such documents as may be reasonable and necessary
to facilitate accomplishment of the intent thereof. Lessee agrees to copy and
make available for inspection and copying by Lessor such records as will enable
Lessor to determine whether it is entitled to the benefit of any amortization
or depreciation deduction, or other deduction or credit which may be available
from time to time with respect to the Equipment.
(3) If Lessor, under any circumstances or for any reason whatsoever, except for
acts of Lessor or future changes in the IRC, shall lose or shall not have the
right to claim or there shall be disallowed or recaptured, all or any portion
of the federal tax depreciation deductions with respect to any item of
Equipment based on depreciation of the Lessor's full cost of such item of
Equipment and computed on the basis of a method of depreciation provided by the
IRC as Lessor in its complete discretion may select, then Lessee agrees to pay
Lessor upon demand an amount which, after deduction of all taxes required to be
paid by Lessor in respect of the receipt thereof under the laws of any federal,
state, or local government or taxing authority of the United States or of any
taxing authority or government subsidiary of any foreign country, shall be
equal to the sum of (i) an amount equal to the additional income taxes paid or
payable by Lessor in consequence of the failure to obtain the benefit of a
depreciation deduction, and (ii) any interest and/or penalty which may be
assessed in connection with any of the foregoing.
The provisions of this paragraph shall survive the expiration or earlier
termination of this Agreement.
14. INDEMNIFICATION COVENANT. The Lessee agrees to indemnify, reimburse, and
hold harmless Lessor and its successors and assigns ("Indemnities"), from and
against all claims, damages, losses, liabilities, demands, suits, judgments,
causes of action, civil and criminal legal proceedings, penalties, fines and
other sanctions, and any attorney fees and other reasonable costs and expenses,
arising or imposed under circumstances not involving Lessor's gross negligence
or willful misconduct (collectively, "claims"), relating to or arising in any
manner out of:
(1) This Agreement or the breach of any representation, warranty, or covenant
made by the Lessee under this Agreement;
(2) Manufacture, purchase, lease, delivery, nondelivery, acceptance, rejection,
ownership, possession, use, operation, return, or disposition of the Equipment;
(3) The Equipment's condition or any discoverable or nondiscoverable defect in
it arising from its design, testing, or construction; any article used in the
Equipment; or any maintenance, service, or repair, whether or not the Equipment
is in the Lessee's possession and regardless of where the Equipment is located;
or (4) Any transaction, approval, or document, contemplated by this Agreement.
The Leasee waives and releases indemnities from any existing or future claims in
any way connected with injury to or death of the Lessee's personal, loss or
damage of the Lessee's property, or loss of use of any property, which may:
(a) Result from or arise in any manner out of the ownership, leasing, condition,
use or operation of the Equipment; or
(b) Be caused by any defect in the Equipment: its design, testing or
construction, any article used in the Equipment; or any maintenance, service, or
repair, whether or not the Equipment is in the Lessee's possession and
regardless of where the Equipment is located. The Indemnities described in this
clause will continue in full force and effect notwithstanding the expiration or
other termination of this Agreement and are expressly made for the benefit and
will be enforceable by such indemnitee.
15. COVENANT TO KEEP FREE OF LIENS. The Leases will not directly or indirectly
create, incur, assume, or suffer to exist any lien on the Equipment, its title,
or any interest therein, except for:
(1) The respective rights of the Lessor and Lessee under this Agreement;
(2) Liens granted by the Lessor with respect to the Equipment;
(3) Liens for taxes either not yet due or being contested in good faith by the
Leasee as long as adequate reserves are maintained with respect to those liens
and the Equipment is not, in the Lessor's reasonable opinion, in danger of being
sold, confiscated, forfeited, or seized as a result of the liens; and
(4) Inchoate materialmen's, mechanics', workmen's, repairmen's, employees', or
other like liens arising in the ordinary course of business, which either are
not delinquent or are being contested in good faith by the Lessee, as long as
the Equipment is not, in the Lessor's reasonable opinion, in danger of being
sold, confiscated, forfeited, or seized as a result of the liens.
The Lessee will promptly, at its sole expense, take any action that may be
necessary to discharge any lien except for the liens referred to in paragraphs
(1) and (2) arising at any time with respect to the Equipment.
16. WAIVER OF CONSEQUENTIAL DAMAGES. The Lessee will not be entitled to
recover, and hereby disclaims and waives any right that it may otherwise have to
recover, consequential damages as a result of any breach or alleged breach by
the Lessor of
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<PAGE> 13
any of the agreements, representations, or warranties of the Lessor contained
in this Agreement.
17. LESSOR'S RIGHT TO PERFORM. If Lessee fails to make any payment required to
be made hereunder or fails to comply with any other provisions of this
Agreement, Lessor may make such payment or comply with such provisions, and the
amount of such payment and the reasonable expenses of Lessor incurred in
connection with such payment or compliance, shall be immediately payable by
Lessee to Lessor.
18. DEFAULT. Any one of the following occurrences shall, in the Lessor's sole
discretion, constitute a material default by Lessee of this Agreement:
(1) Failure by Lessee to make any payment of rent or other amount owing
hereunder when due;
(2) Failure of Lessee to perform or observe any other covenant, agreement, or
condition hereunder;
(3) Any representation or warranty made by Lessee herein or in any document or
certificate furnished to Lessor in connection herewith shall prove to be
incorrect at any time;
(4) Lessee shall become insolvent or make an assignment for the benefit of
creditors or consent to the appointment of a trustee or receiver, or a trustee
or receiver shall be appointed for Lessee or for a substantial part of its
property or for the Equipment, or reorganization, arrangement, insolvency,
dissolution, or liquidation proceedings shall be instituted by or against
Lessee.
In such event, Lessor may declare this Agreement to be in default, and may
proceed in accordance with the provisions of Paragraph 19 hereof.
19. REMEDIES.
(1) Remedies. On the occurrence of any event of default and at any time
afterwards as long as it continues, the Lessor may, at its option and without
notice to the Lessee, declare this Agreement to be in default and exercise one
or more of the following remedies:
(a) Declare the then Stipulated Loss Value immediately due and payable with
respect to any or all Items of Equipment without notice or demand to Lessee;
(b) Sue for and recover all rent and other payments, then accrued or thereafter
accruing, with respect to any or all Items of Equipment;
(c) Take possession of and render unusable any or all Items of Equipment,
without demand or notice, wherever same may be located, without any court order
or other process of law and without liability for any damages occasioned by
such taking of possession (any such taking of possession will not constitute a
termination of this lease as to any or all Items of Equipment unless Lessor
expressly so notifies Lessee in writing);
(d) Require Lessee to assemble any or all Items of Equipment at the original
equipment location, such location to which the equipment may have been moved
with the prior written consent of Lessor, or such other location in reasonable
proximity to either of the foregoing as Lessor designates;
(e) Sell or otherwise dispose of any or all Items of Equipment whether or not
in Lessor's possession, in a commercially reasonable manner at public or
private sale and with or without notice to Lessee and apply the net proceeds of
such sale, after deducting all costs of such sale, including, but not limited
to, costs of transportation, repossession, storage, refurbishing, advertising
and broker's fees, to the obligations of Lessee thereunder with Lessee
remaining liable for any deficiency and with any excess being retained by
Lessor;
(f) Retain any repossessed items of Equipment and credit the reasonable value
thereof, after deducting all such sales related costs incurred to the date of
crediting, to the obligations of Lessee hereunder with Lessee remaining liable
for any deficiency and with Lessor having no obligation to reimburse Lessee on
account of any excess of such reasonable value over such obligations;
(g) Terminate this lease as to any or all items of Equipment;
(h) Utilize any other remedy available to Lessor at law or in equity.
In each case, plus the amount, if any, as reasonably calculated by the Lessor,
required for the Lessor to receive the same after tax economic return from this
lease that the Lessor would have received if the Lessee had performed all of
its obligations under this Agreement through the end of the lease term.
In addition to the foregoing, the Lessee will be liable for interest on unpaid
amounts at an annual interest rate of 18 percent from the date the same became
due until payment in full, and for all reasonable legal fees and other
reasonable costs and expenses incurred by the Lessor in connection with the
occurrence of any event of default or the exercise of its remedies.
A termination hereunder will occur only upon written notice by Lessor to Lessee
and only with respect to such items of Equipment as to which Lessor
specifically elects to terminate in such notice. Except as to such items with
respect to which there is a termination, this lease will remain in full force
and effect and Lessee will be and remain liable for the full performance of all
its obligations hereunder.
No right or remedy conferred herein is exclusive of any right or remedy
conferred herein or by law; but all such rights and remedies are cumulative of
every other right or remedy conferred hereunder or at law or in equity, by
statute or otherwise, and may be exercised concurrently or separately from time
to time.
(2) In effecting any repossession, the Lessor and its representatives and
agents, to the extent permitted by law, will:
(a) Have the right to enter on any premises where the Lessor reasonably
believes the Equipment is located;
(b) Not be liable, in conversion or otherwise, for the taking of any personal
property of the Lessee that is in or attached to the repossessed Equipment as
long as the Lessor promptly returns that property to the Lessee;
(c) Not be liable in any manner for any damage to any of the Lessee's property
in repossessing and holding the Equipment, except for damage caused by the
Lessor's gross negligence or willful misconduct; and
(d) Have the right to maintain possession of and dispose of the Equipment on
any premises owned by the Lessee or under the Lessee's control.
If reasonably required by the Lessor, the Lessee, at its sole expense, will
assemble and make the Equipment available at a place designated by the Lessor.
If the Equipment is returned to or repossessed by the Lessor, any rights in any
express or implied warranty previously assigned to the Lessee or otherwise held
by it will without further act, notice, or writing be assigned or reassigned to
the Lessor, if assignable. The Lessee will be liable to the Lessor for all
reasonable expenses, costs, and fees incurred in (1) repossessing, storing,
preserving, shipping, maintaining, repairing, and refurbishing the Equipment to
the condition required by this Agreement; and (2) preparing the Equipment for
sale or lease, advertising the sale or lease, and selling or re-letting the
Equipment.
No remedy referred to in this paragraph is intended to be exclusive, but, to
the extent permissible under applicable law, each will be cumulative and
operate in addition to any other remedy referred to above or otherwise
available to the Lessor at law or in equity. The exercise or beginning of
exercise by the Lessor of any one or more of its remedies will not preclude the
simultaneous or later exercise by the Lessor of any other remedies.
No express or implied waiver by the Lessor of any default or event of default
will be construed as a waiver of any future or subsequent default or event of
default.
20. CONDITIONS PRECEDENT. The obligation of Lessor contained in paragraph 1 of
this Agreement shall be subject to the following conditions precedent:
(1) There shall have occurred no material adverse change in the business or the
financial condition of Lessee from the date hereof until the Commencement Date
of any Supplement;
(2) Lessee shall have furnished Lessor with a certificate or other evidence
satisfactory to Lessor that insurance coverage as required by this Agreement is
in effect as to the Item of Equipment desired to be leased;
(3) Unless specifically waived by Lessor, Lessee shall have furnished Lessor
waivers, in form and substance acceptable to Lessor, of all rights in or to the
Equipment of any landlord or mortgagee of any real property upon which the
Equipment is or is to be situated; and
(4) All other instruments and legal and corporate proceedings in connection
with the transactions contemplated by this Agreement shall be satisfactory in
form and substance to Lessor, and counsel to Lessor shall have received copies
of all documents which it may have requested in connection therewith.
If any of the above conditions is not satisfied at the time Lessee submits any
Supplement, Lessor, in its sole discretion, shall have no obligation under this
Agreement to lease the Equipment covered thereby to Lessee.
21. FINANCIALS. Lessee agrees that for so long as any item of equipment shall
be leased under the Agreement, Lessee will deliver or cause to be delivered to
Lessor (a) as soon as practicable after the end of each month, monthly
financial statements for the month just closed, including balance sheet, and
related statements of income and expense for such month, all in reasonable
detail prepared in accordance with generally accepted accounting principles
consistently applied throughout the period involved and certified by Lessee's
chief financial officer; and (b) as soon as practicable, and in any event
within 120 days after the close of each fiscal year of Lessee, the audited
balance sheet of Lessee as of the end of such fiscal year together with the
related statements of income and expense for such fiscal year, all in
reasonable detail, prepared in accordance with generally accepted accounting
principles consistently applied throughout the period involved and certified by
an independent certified public accountant acceptable to Lessor.
22. REPRESENTATIONS, WARRANTIES AND COVENANTS. As a material inducement to
Lessor entering into this Agreement with Lessee, Lessee represents, warrants,
and covenants as follows:
(1) If Lessee is a corporation, or a limited liability company, Lessee is duly
organized and validly existing and is in good standing under the laws of the
state of its incorporation, and is duly qualified and licensed to do business
as a foreign corporation and is in good standing in those jurisdictions where
such qualifications are necessary to authorize Lessee to carry on its present
business and operations, and to own its properties or to perform its
obligations thereunder.
(2) If Lessee is a partnership, Lessee is duly organized and validly existing
under the partnership laws of its state of domicile and is duly authorized in
any foreign jurisdiction where such qualification is necessary to authorize
Lessee to carry on its present business and operations and to own its
properties and to perform its obligations thereunder;
(3) Lessee has full power, authority, and legal right to execute, deliver, and
carry out as Lessee the terms and provisions of this Agreement, and any other
necessary documents in connection with this transaction;
(4) If Lessee is a corporation, Lessee's execution, delivery, and performance
of this Agreement and the other documents and agreements referred to herein,
and the performance of its obligations under this Agreement have all been
authorized by all necessary corporate action, do not require the approval or
consent of stockholders, or of any trustee or holders of any indebtedness or
obligation of Lessee and will not violate any law, governmental rule,
regulation or order binding upon Lessee or any provision of any indenture,
mortgage, contract, or other agreement to which Lessee is a party or by which
it is bound or to which it is subject, and will not violate any provision of
the Certificate or Articles of Incorporation, Bylaws, or any preferred stock
agreement of Lessee;
(5) If Lessee is a partnership, Lessee's execution, delivery and performance of
this Agreement and the other documents and agreements referred to herein, and
the performance of its obligations under this Agreement have all been
authorized by all necessary partnership actions;
(6) There are no pending or threatened investigations, actions, or proceedings
before any court or administrative agency or other tribunal body, which seek to
question or set aside any of the transactions contemplated by this Agreement,
or which, if adversely determined, would materially affect the condition,
business, or operation of Lessee;
(7) Lessee is not in default in any material manner in the payment or
performance of any of its obligations or in the performance of any contract,
agreement, or other instrument to which it is a party or by which it or any of
its assets may be bound;
(8) The balance sheet of Lessee as of the end of its most recent fiscal year
and the related profit and loss statement of the Lessor for the fiscal year
ended on said date, including the related schedules and notes, together with
the report of an independent certified public accountant, heretofore delivered
to Lessor, are all true and correct and present fairly (i) the financial
position of Lessee as of the date of said balance sheet and (ii) the results of
the operations of Lessee for said fiscal year;
(9) All proceedings required to be taken to authorize the lease of the
Equipment from Lessor and to protect Lessor's interest in such Equipment, free
and clear of all liens and encumbrances whatsoever, have been taken;
(10) Lessee has not significant liabilities (contingent or otherwise) which are
not disclosed by or reserved against the financial statements referred to in
(8) above;
(11) All the financial statements referred to in (8) above have been prepared
in accordance with generally accepted accounting principles and practices
applied on a basis consistently maintained throughout the period involved;
(12) There has been no change which would have a material adverse effect on the
business or financial condition of Lessee from that set forth in the balance
sheet referred to in (8) above;
(13) No authorization, consent, approval, license, exemption of or filing or
registration with any court, governmental unit or department, commission,
board, bureau, agency, instrumentality or the like is required or necessary for
the valid execution and delivery of the Agreement, any bill of sale, and the
other documents and agreements referred to herein;
(14) This Master Lease, the Supplements, and any accompanying documents, having
been duly authorized, executed and delivered to Lessor, constitute legal, valid
and binding obligations of Lessee, enforceable against Lessee in accordance
with the terms hereof except
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<PAGE> 14
as such terms may be limited by bankruptcy, insolvency, or similar laws
affecting the enforcement of creditor's rights generally;
(15) Each Item of Equipment will constitute unused "new Section 28 property" in
the hands of Lessor within the meaning of the Internal Revenue Code of 1966, as
amended, on the Commencement Date specified in the Supplement pertaining to
said Item of Equipment;
(16) The Equipment is personal property and neither real property nor a fixture;
(17) The Equipment will be used for commercial operations only, not for
personal, family, or household purposes.
(18) As of the Commencement Date of each Item of Equipment, a reasonable
estimate of the estimated fair market value of such Item of Equipment at the
end of the lease term thereof will be at least 20% of the Lessor's cost
therefor (without including in such value any increase or decrease for
inflation or deflation, and after subtracting from such value any cost for
removal and delivery of possession of Equipment to Lessor at the end of the
lease term thereof); and
(19) As of the Commencement Date of each Item of Equipment, a reasonable
estimate of the estimated useful life of such Item of Equipment at the end of
the original lease term will be at least two years beyond the lease term
thereof.
23. PURCHASE OPTION. Lessor and Lessee hereby agree that so long as no default
shall have occurred and be continuing, Lessee shall have the option (and Lessor
shall have the right to obligate Lessee) to purchase the Equipment at the
expiration of the lease term for the purchase option price set forth in the
applicable Supplement. In order to exercise the option with respect to all of
the Equipment, Lessee must give Lessor written notice at least 90 days prior to
the expiration of the lease term with respect thereto, and remit the purchase
price in cash to Lessor or its assigns on or before said expiration date. After
receipt of the purchase price in accordance with this paragraph, Lessor will
transfer to Lessee all of its right, title and interest in the Equipment
purchased, as-is, where-is, without recourse, representation or warranty of any
kind, express or implied. Fair Market Sales Value for the purpose of this
paragraph only shall be determined on the basis of and be equal in amount to
the value that would be obtained in a transaction between an informed and
willing buyer and an informed and willing seller, and the cost of moving the
Equipment from the location of current use shall not be a deduction from such
value.
24. CHOICE OF LAW. The rights and liabilities of the parties under this
Agreement, and each Supplement, shall be interpreted, enforced and governed in
all respects by the laws of the State of California. Lessee hereby consents and
subjects itself to the jurisdiction of every local, state, and federal court
within the State of California, and agrees that except as otherwise required by
law, Lessee shall never file or maintain any action or proceeding in connection
with this Agreement, or any Supplement in any court outside the State of
California. Lessee hereby agrees that service of process in connection with
any such action upon Lessee may be in the manner provided by the laws of the
State of California.
25. ATTORNEY FEES AND COSTS. Lessee will pay or reimburse Lessor for all costs
and expenses, including repossession, equipment disposition and court costs and
attorney's fees not offset against amounts recovered or credited as
contemplated in paragraph 19, incurred by Lessor in exercising any of its
rights or remedies thereunder or enforcing any of the terms, conditions or
provisions hereof. This obligation includes the payment or reimbursement of all
such amounts whether an action is ultimately filed and whether an action filed
is ultimately dismissed.
26. HEADINGS FOR CONVENIENCE ONLY. The headings for the paragraphs and
provisions in this Master Lease, as well as the other documents constituting
the Agreement, are intended solely for convenience of reference and are not
intended nor shall they be used to construe, explain, modify or place any
meaning upon any provisions hereof.
27. MODIFICATION. Neither this Master Lease or any other document or Supplement
constituting the Agreement can be modified or amended except by written
agreement signed and dated by both Lessor and Lessee.
28. COUNTERPARTS. This Master Lease and any other document or Supplement
constituting the Agreement may be executed in any number of counterparts. Any
document executed in counterparts shall remain one document. Each counterpart
is an original instrument.
29. PROVISIONS SEVERABLE. Should any provision of the Agreement be determined
to be invalid or unenforceable, such invalidity or unenforceability shall not
affect the remaining provisions hereof.
30. ENTIRE AGREEMENT. This Master Lease, the Supplements, the Proposal
accepted by Lessee on March 28, 2000 and all other documents constituting the
Agreement constitute the entire agreement between the parties and no other
representation or statements shall be deemed binding, nor shall there be any
reliance by either Lessor or Lessee upon any representations, agreements,
statements, promises, understandings, or inducements made which are not
embodied in the written Agreement.
Executed on March 28, 2000, at SSF, California.
By execution hereof, the undersigned hereby certifies that he has
read this Agreement, and that he is duly authorized to execute
this Master Equipment Lease on behalf of Lessee.
LESSEE:
VIROLOGIC, INC.
a Delaware corporation
By: /s/ Martin H. Goldstein
----------------------------
Name Martin H. Goldstein
----------------------------
Title President
----------------------------
LESSOR:
PENTECH FINANCIAL SERVICES, INC.,
a California corporation
By:
----------------------------
Benjamin E. Millerbis
Title: President
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<PAGE> 15
PENTECH FINANCIAL SERVICES, INC.
SCHEDULE NO. 03 TO EQUIPMENT FINANCING AGREEMENT NO. 200371
BETWEEN PENTECH FINANCIAL SERVICES, INC., SECURED PARTY,
AND VIROLOGIC, INC., DEBTOR,
WITH EFFECTIVE DATE OF MARCH 28, 2000.
SECURED PARTY AND DEBTOR HEREBY ACKNOWLEDGE THAT THE ITEMS OF EQUIPMENT
DESCRIBED IN THIS SCHEDULE ARE COVERED BY THE EQUIPMENT FINANCING AGREEMENT
("THE AGREEMENT") AND THAT THE FOLLOWING IS A DESCRIPTION OF SAID ITEMS, THE
ADVANCE AMOUNT ON ACCOUNT THEREOF, THE INSTALLMENT PAYMENTS APPLICABLE THERETO,
THE EQUIPMENT LOCATION, AND IF SPECIFIED, CERTAIN FURTHER RELATED INFORMATION.
1. Equipment Description: as more fully described on Equipment Schedule
Exhibit A
2. Advance Amount: $312,229.80
3. Installment Payments: Except as otherwise provided in the Agreement or in
this Schedule, the Advance Amount will be repaid in
installments commencing April 1, 2000 as follows:
36 consecutive installments of $10,006.97 each,
payable monthly in advance, plus a final payment of
$34,345.28. First and last payments are due upon
execution hereof.
4. Equipment Location: Per attached Equipment Schedule Exhibit A.
5. Other Provisions: None
ACCEPTED and APPROVED on March 29, 2000, as Schedule 003 to and made a part of
the Agreement.
PENTECH FINANCIAL SERVICES, INC. VIROLOGIC, INC.
A California corporation, A Delaware corporation
(Secured Party) (Debtor)
By: By: /s/ Martin H. Goldstein
------------------------------ ------------------------------
Title: Title: President
------------------------------ ---------------------------
Address: 310 West Hamilton Avenue, Suite 202 Address: 270 East Grand Ave.
Campbell, Ca 95008 South San Francisco, CA
94080
<PAGE> 16
ViroLogic, Inc.
Pentech Leaseline Schedule #3
<TABLE>
<CAPTION>
City Description/ Ck
Ref. # Vendor Model # P.O.# Invoice # Serial# Cost Total Check# Date Soft Costs
-----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
40 Scitec Consultants 1 Infection System 41569 99-140 288,434.00
Sales Tax 23,795.80 5801 04/13/99 23,795.80
312,229.80 6162 06/12/99
Total 312,229.80 23,795.80
</TABLE>
<TABLE>
<S> <C>
SECURED PARTY: PENTECH FINANCIAL SERVICES, INC. DEBTOR: VIROLOGIC, INC.
a California corporation a Delaware corporation
By: By: /s/ Martin H. Goldstein
----------------------------------------- --------------------------------------------
Name: Benjamin E. Millerbis Name: MARTIN H. GOLDSTEIN
-------------------------------------- -----------------------------------------
Title: President Title: President
------------------------------------- ----------------------------------------
Date: March 29, 2000 Date: March 29, 2000
------------------------------------- ----------------------------------------
</TABLE>
<PAGE> 17
055759 IMPORTANT -- READ INSTRUCTIONS ON BACK BEFORE FILLING OUT FORM -- DO NOT
DETACH STUB
THIS SPACE FOR USE OF FILING OFFICER
FINANCING STATEMENT -- FOLLOW INSTRUCTIONS
CAREFULLY
This Financing Statement is presented for
filing pursuant to the Uniform Commercial
Code and will remain effective, with
certain exceptions, for 6 years from the
date of filing.
<TABLE>
<S> <C>
-----------------------------------------------------------------------------------------
A. NAME & TEL. # OF CONTACT AT FILER (optional) B. FILING OFFICE ACCT. # (optional)
-----------------------------------------------------------------------------------------
C. RETURN COPY TO: (Name and Mailing Address)
PENTECH FINANCIAL SERVICES, INC.
310 WEST HAMILTON AVE.
SUITE 202
CAMPBELL, CA 95008
------------------------------------------------------------------------------------------------------
D. OPTIONAL, DESIGNATION (if applicable): [ ] LESSOR/LESSEE [ ] CONSIGNOR/CONSIGNEE [ ] NON-UCC FILING
</TABLE>
<TABLE>
<S> <C> <C>
------------------------------------------------------------------------------------------------------------------------------------
1. DEBTOR'S EXACT FULL LEGAL NAME -- Insert only one debtor name (1a or 1b)
---------------------------------------------------------------------------------------------------------------------------------
1a. ENTITY'S NAME
VIROLOGIC, INC., A DELAWARE CORPORATION
OR ---------------------------------------------------------------------------------------------------------------------------------
1b. INDIVIDUAL'S LAST NAME FIRST NAME MIDDLE NAME SUFFIX
------------------------------------------------------------------------------------------------------------------------------------
1c. MAILING ADDRESS CITY STATE COUNTRY POSTAL CODE
270 EAST GRAND AVE. SOUTH SAN FRANCISCO CA USA 94080
------------------------------------------------------------------------------------------------------------------------------------
1d. S.S. OR TAX I.D. # OPTIONAL 1e. TYPE OF ENTITY 1f. ENTITY'S STATE 1g. ENTITY'S ORGANIZATIONAL I.D. #, if any
ADD'NL INFO RE OR COUNTY OF
94-3234479 ENTITY DEBTOR ORGANIZATION [ ] NONE
------------------------------------------------------------------------------------------------------------------------------------
2. ADDITIONAL DEBTOR'S EXACT FULL LEGAL NAME -- Insert only one debtor name (2a or 2b)
---------------------------------------------------------------------------------------------------------------------------------
2a. ENTITY'S NAME
OR ---------------------------------------------------------------------------------------------------------------------------------
2b. INDIVIDUAL'S LAST NAME FIRST NAME MIDDLE NAME SUFFIX
------------------------------------------------------------------------------------------------------------------------------------
2c. MAILING ADDRESS CITY STATE COUNTRY POSTAL CODE
------------------------------------------------------------------------------------------------------------------------------------
2d. S.S. OR TAX I.D. # OPTIONAL 2e. TYPE OF ENTITY 2f. ENTITY'S STATE 2g. ENTITY'S ORGANIZATIONAL I.D. #, if any
ADD'NL INFO RE OR COUNTY OF
ENTITY DEBTOR ORGANIZATION [ ] NONE
------------------------------------------------------------------------------------------------------------------------------------
3. SECURED PARTY'S (ORIGINAL S/P or ITS TOTAL ASSIGNEE) EXACT FULL LEGAL NAME -- Insert only one secured party name (3a or 3b)
---------------------------------------------------------------------------------------------------------------------------------
3a. ENTITY'S NAME
PENTECH FINANCIAL SERVICES, INC.
OR ---------------------------------------------------------------------------------------------------------------------------------
3b. INDIVIDUAL'S LAST NAME FIRST NAME MIDDLE NAME SUFFIX
------------------------------------------------------------------------------------------------------------------------------------
3c. MAILING ADDRESS CITY STATE COUNTRY POSTAL CODE
310 WEST HAMILTON AVE., SUITE 202 CAMPBELL CA USA 95008
------------------------------------------------------------------------------------------------------------------------------------
4. This FINANCIAL STATEMENT covers the following types or items of property:
SEE ATTACHED SCHEDULE 3
EFA NO. 200371
SCHEDULE NO. 4
------------------------------------------------------------------------------------------------------------------------------------
5. CHECK BOX [ ] This FINANCING STATEMENT is signed by the Secured Party instead of the 7. If filed in Florida (check one)
(if applicable) Debtor to perfect a security interest (a) In collateral already subject [ ] Documentary [ ] Documentary stamp
to a security interest in another jurisdiction when it was brought into stamp tax paid tax not applicable
this state, or when the debtor's location was changed to this state, or
(b) in accordance with other statutory provisions (additional information
may be required)
------------------------------------------------------------------------------------------------------------------------------------
6. REQUIRED SIGNATURE 8. [ ] This FINANCING STATEMENT is to be filed (for record)
(or recorded) in the REAL ESTATE RECORDS
/s/ MARTIN H. GOLDSTEIN Attach Addendum (if applicable)
------------------------------------------------------------------------------------------------------------------------------------
9. Check to REQUEST SEARCH CERTIFICATE(S) on Debtor(s)
(ADDITIONAL FEE)
(optional) [ ] All Debtors [ ] Debtor 1 [ ] Debtor 2
------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 18
REGISTRE, INC. DETACH COPY ONE AND SEND TO FILING OFFICE WITHOUT CARBONS
214 PIERCE ST.
P.O. BOX 218 02979
ANOKA, MN 55202
(612) 421-1710 N
STATE OF DELAWARE
UNIFORM COMMERCIAL CODE - FINANCING STATEMENT - FORM UCC - 1
--------------------------------------------------------------------------------
THIS FINANCING STATEMENT IS PRESENTED TO A FILING OFFICER FOR FILING PURSUANT
TO THE UNIFORM COMMERCIAL CODE.
IF TO BE FILED WITH RECORDER OF DEEDS INDICATE TAX PARCEL NO.(S).
-------------
NO. OF ADDITIONAL SHEETS PRESENTED 1 .
-------------
--------------------------------------------------------------------------------
PARTIES
--------------------------------------------------------------------------------
Debtor (or Assignor) (last name first if individual) and mailing address:
VIROLOGIC, INC., A DELAWARE CORPORATION
270 EAST GRAND AVE.
SOUTH SAN FRANCISCO, CA 94080
--------------------------------------------------------------------------------
Debtor (or Assignor) (last name first if individual) and mailing address:
--------------------------------------------------------------------------------
This statement is filed without the Debtor's signature to perfect a security
interest in collateral (check X in applicable box(es))
/ / Already subject to a security interest in another jurisdiction when it was
brought into this State.
/ / Already subject to a security interest in another jurisdiction when the
Debtor's location changed to this State.
/ / Which is proceeds of the original collateral described below in which a
security interest is perfected.
/ / Acquired after a change of name, identity or corporate structure of Debtor.
/ / As to which the filing has lapsed.
--------------------------------------------------------------------------------
By:
----------------------------------------------------------------------------
SIGNATURE OF SECURED PARTY(IES) TITLE
(REQUIRED ONLY IF ITEM IS CHECKED)
--------------------------------------------------------------------------------
PARTIES
--------------------------------------------------------------------------------
Secured Party(ies) (last name first if individual) and address:
PENTECH FINANCIAL SERVICES, INC.
310 WEST HAMILTON AVE., SUITE 202
CAMPBELL, CA 95008
--------------------------------------------------------------------------------
Assignee (if any) of Secured Party(ies) and address of Assignee:
--------------------------------------------------------------------------------
Special Types of Parties (check X in applicable box(es))
/ / The terms "Debtor" and "Secured Party" mean "Lessee" and "Lessor",
respectively.
/ / The terms "Debtor" and "Secured Party" mean "Consignee" and "Consignor",
respectively.
/ / Debtor is a Transmitting Utility.
/ / Debtor is acting in representative capacity (e.g., as trustee).
--------------------------------------------------------------------------------
Filed With: SECRETARY OF STATE
--------------------------------------------------------------------------------
Prepared By (Name and Address):
PENTECH FINANCIAL SERVICES, INC.
310 WEST HAMILTON, AVE., SUITE 202
CAMPBELL, CA 95008
--------------------------------------------------------------------------------
/ / Check to request Continuation Statement notice for additional fee.
--------------------------------------------------------------------------------
This Financing Statement covers the following types (or items) of property:
Check only if applicable: / / Products of collateral are also covered.
SEE ATTACHED SCHEDULE 4
EFA NO. 200371
SCHEDULE NO. 4
--------------------------------------------------------------------------------
If the collateral is crops, the crops are growing or to be grown on the
following described real estate:
--------------------------------------------------------------------------------
If the collateral is (a) goods that are or are to become fixtures; (b) timber
to be cut; or (c) minerals or the like (including oil and gas) or accounts
resulting from the sale thereof at the wellhead or minehead, the description of
the real estate concerned is: (check X in applicable box(es))
/ / Fixtures / / Timber / / Minerals or accounts resulting from sale
thereof at wellhead or minehead
And this Financing Statement is to be filed in the real estate records where a
mortgage on such real estate would be recorded. If the Debtor does not have an
interest of record, the name of a record owner is:
--------------------------------------------------------------------------------
VIROLOGIC, INC., A DELAWARE CORPORATION
---------------------------------------
By: /s/ Martin H. Goldstein President
-----------------------------------------------
Signature of Debtor (or Assignor) Title
--------------------------------------------------------------------------------
THIS SPACE FOR USE OF FILING OFFICER
(DATE, TIME, NUMBER, FILING OFFICER)
<PAGE> 19
PENTECH FINANCIAL SERVICES, INC.
EQUIPMENT FINANCING AGREEMENT NO. 200371
SCHEDULE NO. 003
SCHEDULE C
STIPULATED LOSS PERCENTAGE VALUE
Terms defined in the Agreement shall have the same meanings when used herein.
<TABLE>
<CAPTION>
----------------------------------------------------------------------------------------------------------------
Rent Payment Stipulated Loss Rent Payment Stipulated Loss Rent Payment Stipulated Loss
Value Percentage Value Percentage Value Percentage
<S> <C> <C> <C>
1 120.00 22 78.00
2 118.00 23 76.00
3 116.00 24 74.00
4 114.00 25 72.00
5 112.00 26 70.00
6 110.00 27 68.00
7 108.00 28 66.00
8 106.00 29 64.00
9 104.00 30 62.00
10 102.00 31 60.00
11 100.00 32 58.00
12 98.00 33 56.00
13 96.00 34 54.00
14 94.00 35 52.00
15 92.00 36 50.00
16 90.00
17 88.00
18 86.00
19 84.00
20 82.00
21 80.00
</TABLE>
Dated: March 29, 2000
--------------
PENTECH FINANCIAL SERVICES, INC. VIROLOGIC, INC., a Delaware corporation
SECURED PARTY DEBTOR
The undersigned affirms that he is duly
authorized to execute and deliver this
Schedule on behalf of Debtor.
By: By: /s/ Martin H. Goldstein
------------------------------ ------------------------------
Title: President Title: President
--------------------------- ---------------------------
<PAGE> 20
FROM: ViroLogice, Inc.
270 East Grand Ave.
South San Francisco, CA 94080
TO: Woodruff Sawyer
220 Bush St., 7th Floor
San Francisco, CA 98104-3509
Contact: Steve Sawyer
--------------------------
Phone: (415) 399-6329
--------------------------
Fax:
--------------------------
Dear Steve:
We have entered into an Equipment Financing Agreement arranged by PENTECH
FINANCIAL SERVICES, INC. for the equipment shown on the attached Equipment
Schedule, Exhibit A ("Schedule").
Equipment Location: See attached Schedule
Equipment Description: See attached Schedule
PLEASE PROVIDE AN INSURANCE CERTIFICATE WITH THE FOLLOWING ENDORSEMENTS:
LENDER'S LOSS PAYABLE ENDORSEMENT
EQUIPMENT FINANCING AGREEMENT NO. 200371, SCHEDULE 003
EQUIPMENT COST $312,299.80
Please fax a copy of the Certificate of Insurance to PENTECH FINANCIAL
SERVICES, INC., facsimile number (408) 378-3304, and forward the original to
PENTECH FINANCIAL SERVICES, INC., 310 West Hamilton Avenue, Suite 202,
Campbell, CA 95008.
Very truly yours,
ViroLogic, Inc.
a Delaware corporation
By: /s/ Martin H. Goldstein
----------------------------------
Name: MARTIN H. GOLDSTEIN
---------------------------------
Title: President
--------------------------------
<PAGE> 21
DISBURSEMENT AUTHORIZATION
TO: PENTECH FINANCIAL SERVICES, INC.
The undersigned hereby certifies that all the property described below
(the "Equipment"), which is to be financed for the undersigned pursuant to the
Equipment Financing Agreement No. 200371 with effective date of March 28, 2000,
(the "Agreement") and its Schedule No. 003 thereunder dated April 1, 2000,
between PENTECH FINANCIAL SERVICES, INC. ("PENTECH") and the undersigned as
Debtor, has been furnished to the undersigned, that delivery and installation
of the Equipment have been fully completed and that all the Equipment is
acceptable in all respects to the undersigned.
In view of the above, the undersigned hereby authorizes and requests
PENTECH to pay for the Equipment in accordance with the terms of any purchase
orders the undersigned may have issued for the same and/or to pay the
undersigned the advance amount to the extent the undersigned has previously
paid for the Equipment, as appropriate. The undersigned acknowledges that you
are relying upon this executed Disbursement Authorization in so doing. Debtor
authorizes PENTECH to disburse the total advance as follows:
$312,229.80 To: ViroLogic, Inc.
Total: $312,229.80
Equipment
SEE EQUIPMENT SCHEDULE EXHIBIT A
ATTACHED HERETO AND MADE A PART HEREOF.
The undersigned recognizes that by executing this Disbursement
Authorization the undersigned's non-terminable installation payment obligation
under the Agreement will commence. The undersigned reaffirms its understanding
that the Agreement is solely a financing agreement and that, accordingly,
PENTECH FINANCIAL SERVICES, INC. has made no warranties, express or implied, as
to the Equipment or any other matter and that there are no warranties, express
or implied, created by law and further that, accordingly, the undersigned's
obligation to pay amounts due under the Agreement will not be affected by any
problems the undersigned may experience with the Equipment or any similar or
dissimilar occurrence as more fully set forth in the Agreement.
Date Equipment accepted by Debtor: March 29, 2000
DEBTOR VIROLOGIC, Inc.
a Delaware corporation
By: /s/ Martin H. Goldstein
-----------------------------
Name: Martin H. Goldstein
---------------------------
Title: President
--------------------------
<PAGE> 22
PENTECH FINANCIAL SERVICES, INC.
310 W. Hamilton Ave.
Suite 202
Campbell, CA 95008
INVOICE
ViroLogic, Inc.
270 East Grand Ave.
South San Francisco, CA 94080
--------------------------------------------------------------------------------
EFA No. 200371, Schedule No. 003 March 29, 2000
Advance Payment 2 @ $10,006.97 $20,013.94
Documentation Fee $ 250.00
UCC Fee $ 100.00
----------
$20,363.94
--------------------------------------------------------------------------------
Deposit Applied $ 2,500.00
--------------------------------------------------------------------------------
BALANCE DUE UPON RECEIPT $17,863.94
==========
<PAGE> 23
PENTECH FINANCIAL SERVICES, INC.
SCHEDULE NO. 005 TO EQUIPMENT FINANCING AGREEMENT NO. 200371
BETWEEN PENTECH FINANCIAL SERVICES, INC., SECURED PARTY,
AND VIROLOGIC, INC., DEBTOR,
WITH EFFECTIVE DATE OF MARCH 28, 2000.
SECURED PARTY AND DEBTOR HEREBY ACKNOWLEDGE THAT THE ITEMS OF EQUIPMENT
DESCRIBED IN THIS SCHEDULE ARE COVERED BY THE EQUIPMENT FINANCING AGREEMENT
("THE AGREEMENT") AND THAT THE FOLLOWING IS A DESCRIPTION OF SAID ITEMS, THE
ADVANCE AMOUNT ON ACCOUNT THEREOF, THE INSTALLMENT PAYMENTS APPLICABLE THERETO,
THE EQUIPMENT LOCATION, AND IF SPECIFIED, CERTAIN FURTHER RELATED INFORMATION.
1. Equipment Description: as more fully described on Equipment Schedule
Exhibit A
2. Advance Amount: $130,163.36
3. Installment Payments: Except as otherwise provided in the Agreement or in
this Schedule, the Advance Amount will be repaid in
installments commencing April 1, 2000 as follows:
36 consecutive installments of $4,171.74 each,
payable monthly in advance, plus a final payment of
$14,317.97. First and last payment(s) are due upon
execution hereof.
4. Equipment Location: Per attached Equipment Schedule Exhibit A.
5. Other Provisions: None
ACCEPTED and APPROVED on April 1, 2000, as Schedule 005 to and made a part of
the Agreement.
PENTECH FINANCIAL SERVICES, INC. VIROLOGIC, INC.
A California corporation, A Delaware corporation
(Secured Party) (Debtor)
By: By: /s/ Martin H. Goldstein
------------------------------ ------------------------------
Title: Title: President
------------------------------ ---------------------------
Address: 310 West Hamilton Avenue, Suite 202 Address: 270 East Grand Avenue
Campbell, Ca 95008 South San Francisco, CA
94080
<PAGE> 24
ViroLogic, Inc.
Pentech Leaseline Schedule #005
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C>
Ref. # Vendor Qty Description/Model # P.O. # Invoice #
______ ______ ___ ___________________ ______ _________
1 Ofagen Inc 1 Centrifgue 4-15 41267 90182717
1 Plate Rotor 2x96
Freight
Sales Tax
2 Wallac Inc 1 Stacker/Robotic Victor2 41261 110773
1 Injector Module
1 Dual Fuel Bon Barcode Reader
Freight
Sales Tax
3 WWR Scientific 1 Beckman Microfuge 18 41458 19243770
Sales Tax
4 Beckman Coulter 1 Coulter Z1 Dual Threshold 41336 107876FL01
Packed
Counter vipZ Pack Starter Kit
Sales Tax
5 WWR Scientific 2 Biohil Electronic Pipeter 41499 20015780
0.2-10 ul
1 Biohil Electronic Pipeter
& Channel 50-1200 ul
Sales Tax
6 Qiagen Inc 1 Qlaptep 96 Plasnrid Mini Prep 41498 90199964
Freight
Sales Tax
7 Mchfaster Care 1 15 Gallon Wet/Dry Hepa Vacuum 41514 6442936
Supply Co Freight
Sales Tax
8 WWR Scientific 1 Eppendorf Thermomixer 41563 21648891
1 Thermobile for Thermomixer
Sales Tax
9 Forma Scientific 6 Biosafety Cabinet Exhaust Fans 51308 2790660
Freight
Sales Tax
<CAPTION>
<S> <C> <C> <C> <C> <C>
Serial # Cost Total Check # Ck Date Soft Costs
________ __________ ________ _______ _______ __________
63421 7,281.75
1,577.00
5.00 5.00
731.27 731.27
9,595.02 4582 10/28/98
42D0631 31,800.00
29981188 9,945.00
2,890.20
201.77 207.87
3,682.40 3,682.40
48,519.37 4697 11/18/98
MFA98F04 2,137.50
176.35 176.35
2,313.85 4885 12/03/98
AB40050 12,675.00
357.00
1,075.97 1,075.97
14,117.97 4903 12/15/98
972.00
864.00
151.47 151.47
1,987.47 4953 12/15/98
N/A 2,420.00
20.07 20.07
199.66 199.66
2,639.73 4942 12/15/98
S8291231182 1,023.51
22.85 22.85
84.44 84.44
1,130.80 4928 12/15/98
1,831.47
355.58 355.58
180.43 180.43
2,357.48 5271 01/27/99
2,916.00
285.99 285.99
240.57 240.57
3,442.56 5719 03/31/99
</TABLE>
<PAGE> 25
ViroLogic, Inc.
Pentech Leaseline Schedule #005
<TABLE>
<CAPTION>
Ref.# Vendor Qty Description/Model # P.O.# Invoice# Serial# Cost Total Check# Ck Date Soft Costs
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Subtotal - Lab Equipment 66,114.25 7,419.92
10 Flash
Telecommunications 1 Legend Expansion Cabinet
w/12 Port Analog St 41639 5262 2,754.10
2,754.10 5191 01/21/99
11 Bl Office
Products 1 4 Drawer Lateral File
Cabinet 41665 26377550 653.67
1 Overfile Cabinet 303.75
1 Overfile Cabinet Lock
Kit 24.30
Sales Tax 81.00 81.00
1,062.72 5155 01/13/99
12 Ciber Network
Services 1 LP725 Data/Video/Zoom
LCD Projector 51193 516983 1S2PW8430431 4,358.00
Freight 8.75 8.75
Sales Tax 359.54 359.54
4,726.29 5538 03/10/99
13 Quality Systems 20 Workstations 1727-99 32,800.00 7095 09/27/99
Sales Tax 2,706.00 7186 10/04/99 2,706.00
7251 10/12/99
35,506.00 7291 10/21/99
Subtotal - Office Equipment 44,049.11 3,155.29
130,163.36 10,575.21
</TABLE>
SECURED PARTY: Pentech Financial Services, Inc. VIROLOGIC, INC.
a California corporation a Delaware Corporation
By: By: Martin H. Goldstein
------------------------------------------ ---------------------------
Name: Benjamin E. Millerbis Name: Martin H. Goldstein
---------------------------------------- ---------------------------
Title: President Title: President
---------------------------------------- ---------------------------
Date: April 1, 2000 Date: 4/14/00
---------------------------------------- ---------------------------
<PAGE> 26
DISBURSEMENT AUTHORIZATION
TO: PENTECH FINANCIAL SERVICES, INC.
The undersigned hereby certifies that all the property described below
(the "Equipment"), which is to be financed for the undersigned pursuant to the
Equipment Financing Agreement No. 200371 with effective date of March 28, 2000,
(the "Agreement") and its Schedule No. 005 thereunder dated April 1, 2000,
between PENTECH FINANCIAL SERVICES, INC. ("PENTECH") and the undersigned as
Debtor, has been furnished to the undersigned, that delivery and installation
of the Equipment have been fully completed and that all the Equipment is
acceptable in all respects to the undersigned.
In view of the above, the undersigned hereby authorizes and requests
PENTECH to pay for the Equipment in accordance with the terms of any purchase
orders the undersigned may have issued for the same and/or to pay the
undersigned the advance amount to the extent the undersigned has previously
paid for the Equipment, as appropriate. The undersigned acknowledges that you
are relying upon this executed Disbursement Authorization in so doing. Debtor
authorizes PENTECH to disburse the total advance as follows:
$130,163.36 To: ViroLogic, Inc.
Total: $130,163.36
Equipment
SEE EQUIPMENT SCHEDULE EXHIBIT A
ATTACHED HERETO AND MADE A PART HEREOF.
The undersigned recognizes that by executing this Disbursement
Authorization the undersigned's non-terminable installation payment obligation
under the Agreement will commence. The undersigned reaffirms its understanding
that the Agreement is solely a financing agreement and that, accordingly,
PENTECH FINANCIAL SERVICES, INC. has made no warranties, express or implied, as
to the Equipment or any other matter and that there are no warranties, express
or implied, created by law and further that, accordingly, the undersigned's
obligation to pay amounts due under the Agreement will not be affected by any
problems the undersigned may experience with the Equipment or any similar or
dissimilar occurrence as more fully set forth in the Agreement.
Date Equipment accepted by Debtor: March 29, 2000
DEBTOR VIROLOGIC, Inc.
a Delaware corporation
By: /s/ Martin H. Goldstein
-----------------------------
Name: Martin H. Goldstein
---------------------------
Title: President
--------------------------
<PAGE> 27
FROM: ViroLogice, Inc.
270 East Grand Ave.
South San Francisco, CA 94080
TO: Woodruff Sawyer
220 Bush St., 7th Floor
San Francisco, CA 98104-3509
Contact: Steve Sawyer
--------------------------
Phone: (415) 399-6329
--------------------------
Fax:
--------------------------
Dear Steve:
We have entered into an Equipment Financing Agreement arranged by PENTECH
FINANCIAL SERVICES, INC. for the equipment shown on the attached Equipment
Schedule, Exhibit A ("Schedule").
Equipment Location: See attached Schedule
Equipment Description: See attached Schedule
PLEASE PROVIDE AN INSURANCE CERTIFICATE WITH THE FOLLOWING ENDORSEMENTS:
LENDER'S LOSS PAYABLE ENDORSEMENT
EQUIPMENT FINANCING AGREEMENT NO. 200371, SCHEDULE 005
EQUIPMENT COST $130,163.36
Please fax a copy of the Certificate of Insurance to PENTECH FINANCIAL
SERVICES, INC., facsimile number (408) 378-3304, and forward the original to
PENTECH FINANCIAL SERVICES, INC., 310 West Hamilton Avenue, Suite 202,
Campbell, CA 95008.
Very truly yours,
ViroLogic, Inc.
a Delaware corporation
By: /s/ Martin H. Goldstein
----------------------------------
Name: MARTIN H. GOLDSTEIN
---------------------------------
Title: President
--------------------------------
<PAGE> 28
PENTECH FINANCIAL SERVICES, INC.
EQUIPMENT FINANCING AGREEMENT NO. 200371
SCHEDULE NO. 005
SCHEDULE C
STIPULATED LOSS PERCENTAGE VALUE
Terms defined in the Agreement shall have the same meanings when used herein.
<TABLE>
<CAPTION>
----------------------------------------------------------------------------------------------------------------
Rent Payment Stipulated Loss Rent Payment Stipulated Loss Rent Payment Stipulated Loss
Value Percentage Value Percentage Value Percentage
<S> <C> <C> <C>
1 120.00 22 78.00
2 118.00 23 76.00
3 116.00 24 74.00
4 114.00 25 72.00
5 112.00 26 70.00
6 110.00 27 68.00
7 108.00 28 66.00
8 106.00 29 64.00
9 104.00 30 62.00
10 102.00 31 60.00
11 100.00 32 58.00
12 98.00 33 56.00
13 96.00 34 54.00
14 94.00 35 52.00
15 92.00 36 50.00
16 90.00
17 88.00
18 86.00
19 84.00
20 82.00
21 80.00
</TABLE>
Dated: April 1, 2000
-------------
PENTECH FINANCIAL SERVICES, INC. VIROLOGIC, INC., a Delaware corporation
SECURED PARTY DEBTOR
The undersigned affirms that he is duly
authorized to execute and deliver this
Schedule on behalf of Debtor.
By: By: /s/ Martin H. Goldstein
------------------------------ ------------------------------
Title: President Title: President
--------------------------- ---------------------------
<PAGE> 29
REGISTRE, INC. DETACH COPY ONE AND SEND TO FILING OFFICE WITHOUT CARBONS
214 PIERCE ST.
P.O. BOX 218 02988
ANOKA, MN 55202
(612) 421-1710 N
STATE OF DELAWARE
UNIFORM COMMERCIAL CODE - FINANCING STATEMENT - FORM UCC - 1
--------------------------------------------------------------------------------
THIS FINANCING STATEMENT IS PRESENTED TO A FILING OFFICER FOR FILING PURSUANT
TO THE UNIFORM COMMERCIAL CODE.
IF TO BE FILED WITH RECORDER OF DEEDS INDICATE TAX PARCEL NO.(S)
-------------
NO. OF ADDITIONAL SHEETS PRESENTED .
-------------
--------------------------------------------------------------------------------
PARTIES
--------------------------------------------------------------------------------
Debtor (or Assignor) (last name first if individual) and mailing address:
VIROLOGIC, INC.,
270 E. Grand Avenue
South San Francisco, CA 94080
--------------------------------------------------------------------------------
Debtor (or Assignor) (last name first if individual) and mailing address:
--------------------------------------------------------------------------------
This statement is filed without the Debtor's signature to perfect a security
interest in collateral (check X in applicable box(es))
/ / Already subject to a security interest in another jurisdiction when it was
brought into this State.
/ / Already subject to a security interest in another jurisdiction when the
Debtor's location changed to this State.
/ / Which is proceeds of the original collateral described below in which a
security interest is perfected.
/ / Acquired after a change of name, identity or corporate structure of Debtor.
/ / As to which the filing has lapsed.
--------------------------------------------------------------------------------
By:
----------------------------------------------------------------------------
SIGNATURE OF SECURED PARTY(IES) TITLE
(REQUIRED ONLY IF ITEM IS CHECKED)
--------------------------------------------------------------------------------
PARTIES
--------------------------------------------------------------------------------
Secured Party(ies) (last name first if individual) and address:
PENTECH FINANCIAL SERVICES, INC.
310 W. Hamilton Ave., Suite 202
Campbell, CA 95008
--------------------------------------------------------------------------------
Assignee (if any) of Secured Party(ies) and address of Assignee:
--------------------------------------------------------------------------------
Special Types of Parties (check X in applicable box(es))
/ / The terms "Debtor" and "Secured Party" mean "Lessee" and "Lessor",
respectively.
/ / The terms "Debtor" and "Secured Party" mean "Consignee" and "Consignor",
respectively.
/ / Debtor is a Transmitting Utility.
/ / Debtor is acting in representative capacity (e.g., as trustee).
--------------------------------------------------------------------------------
Filed With: Secretary of State
--------------------------------------------------------------------------------
Prepared By (Name and Address):
Pentech Financial Services, Inc.
310 W. Hamilton, Ave., Suite 202
Campbell, CA 95008
--------------------------------------------------------------------------------
/ / Check to request Continuation Statement notice for additional fee.
--------------------------------------------------------------------------------
This Financing Statement covers the following types (or items) of property:
Check only if applicable: / / Products of collateral are also covered.
See Attached Equipment Schedule Exhibit A
Virologic, Inc. EFA No. 200371
Schedule No. 5
--------------------------------------------------------------------------------
If the collateral is crops, the crops are growing or to be grown on the
following described real estate:
--------------------------------------------------------------------------------
If the collateral is (a) goods that are or are to become fixtures; (b) timber
to be cut; or (c) minerals or the like (including oil and gas) or accounts
resulting from the sale thereof at the wellhead or minehead, the description of
the real estate concerned is: (check X in applicable box(es))
/ / Fixtures / / Timber / / Minerals or accounts resulting from sale
thereof at wellhead or minehead
And this Financing Statement is to be filed in the real estate records where a
mortgage on such real estate would be recorded. If the Debtor does not have an
interest of record, the name of a record owner is:
--------------------------------------------------------------------------------
VIROLOGIC, INC., A DELAWARE CORPORATION
---------------------------------------
By: /s/ Martin H. Goldstein President
-----------------------------------------------
Signature of Debtor (or Assignor) Title
--------------------------------------------------------------------------------
THIS SPACE FOR USE OF FILING OFFICER
(DATE, TIME, NUMBER, FILING OFFICER)
<PAGE> 30
055738 IMPORTANT -- READ INSTRUCTIONS ON BACK BEFORE FILLING OUT FORM -- DO NOT
DETACH STUB
THIS SPACE FOR USE OF FILING OFFICER
FINANCING STATEMENT -- FOLLOW INSTRUCTIONS
CAREFULLY
This Financing Statement is presented for
filing pursuant to the Uniform Commercial
Code and will remain effective, with
certain exceptions, for 6 years from the
date of filing.
<TABLE>
<S> <C>
-----------------------------------------------------------------------------------------
A. NAME & TEL. # OF CONTACT AT FILER (optional) B. FILING OFFICE ACCT. # (optional)
-----------------------------------------------------------------------------------------
C. RETURN COPY TO: (Name and Mailing Address)
Pentech Financial Services, Inc.
310 W. Hamilton Ave., Suite 202
Campbell, CA 95008
------------------------------------------------------------------------------------------------------
D. OPTIONAL, DESIGNATION (if applicable): [ ] LESSOR/LESSEE [ ] CONSIGNOR/CONSIGNEE [ ] NON-UCC FILING
</TABLE>
<TABLE>
<S> <C> <C>
------------------------------------------------------------------------------------------------------------------------------------
1. DEBTOR'S EXACT FULL LEGAL NAME -- Insert only one debtor name (1a or 1b)
---------------------------------------------------------------------------------------------------------------------------------
1a. ENTITY'S NAME
ViroLogic, Inc.
OR ---------------------------------------------------------------------------------------------------------------------------------
1b. INDIVIDUAL'S LAST NAME FIRST NAME MIDDLE NAME SUFFIX
------------------------------------------------------------------------------------------------------------------------------------
1c. MAILING ADDRESS CITY STATE COUNTRY POSTAL CODE
270 E. Grand Ave. S. San Francisco CA USA 94080
------------------------------------------------------------------------------------------------------------------------------------
1d. S.S. OR TAX I.D. # OPTIONAL 1e. TYPE OF ENTITY 1f. ENTITY'S STATE 1g. ENTITY'S ORGANIZATIONAL I.D. #, if any
ADD'NL INFO RE OR COUNTY OF
94-3234479 ENTITY DEBTOR ORGANIZATION [ ] NONE
------------------------------------------------------------------------------------------------------------------------------------
2. ADDITIONAL DEBTOR'S EXACT FULL LEGAL NAME -- Insert only one debtor name (2a or 2b)
---------------------------------------------------------------------------------------------------------------------------------
2a. ENTITY'S NAME
OR ---------------------------------------------------------------------------------------------------------------------------------
2b. INDIVIDUAL'S LAST NAME FIRST NAME MIDDLE NAME SUFFIX
------------------------------------------------------------------------------------------------------------------------------------
2c. MAILING ADDRESS CITY STATE COUNTRY POSTAL CODE
------------------------------------------------------------------------------------------------------------------------------------
2d. S.S. OR TAX I.D. # OPTIONAL 2e. TYPE OF ENTITY 2f. ENTITY'S STATE 2g. ENTITY'S ORGANIZATIONAL I.D. #, if any
ADD'NL INFO RE OR COUNTY OF
ENTITY DEBTOR ORGANIZATION [ ] NONE
------------------------------------------------------------------------------------------------------------------------------------
3. SECURED PARTY'S (ORIGINAL S/P or ITS TOTAL ASSIGNEE) EXACT FULL LEGAL NAME -- Insert only one secured party name (3a or 3b)
---------------------------------------------------------------------------------------------------------------------------------
3a. ENTITY'S NAME
Pentech Financial Services, Inc.
OR ---------------------------------------------------------------------------------------------------------------------------------
3b. INDIVIDUAL'S LAST NAME FIRST NAME MIDDLE NAME SUFFIX
------------------------------------------------------------------------------------------------------------------------------------
3c. MAILING ADDRESS CITY STATE COUNTRY POSTAL CODE
310 W. Hamilton Ave., Suite 202 Campbell CA USA 95008
------------------------------------------------------------------------------------------------------------------------------------
4. This FINANCING STATEMENT covers the following types or items of property:
See Attached Equipment Schedule Exhibit A
ViroLogic, Inc., EFA No. 200371
Schedule No. 5
------------------------------------------------------------------------------------------------------------------------------------
5. CHECK BOX [ ] This FINANCING STATEMENT is signed by the Secured Party instead of the 7. If filed in Florida (check one)
(if applicable) Debtor to perfect a security interest (a) in collateral already subject [ ] Documentary [ ] Documentary stamp
to a security interest in another jurisdiction when it was brought into stamp tax paid tax not applicable
this state, or when the debtor's location was changed to this state, or
(b) in accordance with other statutory provisions (additional data
may be required)
------------------------------------------------------------------------------------------------------------------------------------
6. REQUIRED SIGNATURE(S) 8. [ ] This FINANCING STATEMENT is to be filed (for record)
(or recorded) in the REAL ESTATE RECORDS
/s/ MARTIN H. GOLDSTEIN Attach Addendum (if applicable)
------------------------------------------------------------------------------------------------------------------------------------
9. Check to REQUEST SEARCH CERTIFICATE(S) on Debtor(s)
ViroLogic, Inc. (ADDITIONAL FEE)
(optional) [ ] All Debtors [ ] Debtor 1 [ ] Debtor 2
------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 31
PENTECH FINANCIAL SERVICES, INC.
310 W. Hamilton Ave.
Suite 202
Campbell, CA 95008
INVOICE
ViroLogic, Inc.
270 E. Grand Avenue
South San Francisco, CA 94080
--------------------------------------------------------------------------------
LEASE No. 200371, Supplement 5 April 1, 2000
Advance Payment 2 @ $4,171.74 $ 8,343.48
Documentation Fee $ 250.00
UCC Fees $ 100.00
----------
$ 8,693.48
--------------------------------------------------------------------------------
BALANCE DUE UPON RECEIPT $ 8,693.48
==========