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Global Master Rental Agreement

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EXHIBIT 10.65


GLOBAL MASTER RENTAL AGREEMENT


GLOBAL MASTER RENTAL AGREEMENT (the "Agreement") dated May 4, 2000 by and between COMDISCO, INC., acting on behalf of itself and its Affiliates ("Comdisco"), and SEQUENOM, INC., acting on behalf of itself and its Affiliates ("Customer").


Comdisco and its Affiliates are engaged in the rental of equipment in various countries where Customer and its Affiliates may wish to rent such equipment.


To facilitate the transacting of rental operations between Comdisco or an Affiliate of Comdisco and Customer or an Affiliate of the Customer on an ongoing basis, Comdisco and the Customer wish to enter into the present Agreement which, together with the Schedule under which each individual rental operation is concluded, will establish the terms and conditions applicable to such rental operation.


IN CONSIDERATION of the mutual agreements described below, the parties agree as follows (all capitalized terms not otherwise defined in the body of this Agreement are defined in Section 15.12):


1. Property Rented, Customer Liability, Conflict.
Lessor rents to Lessee all of the Equipment described on each Schedule, subject to the terms and conditions of this Agreement and such Schedule. Each such Schedule will be governed by all of the terms and conditions of this Agreement and such additional terms and conditions as may be set forth in such Schedule. Customer will, without notice, be jointly and severally liable for the due performance of the obligations of its Affiliates under all Schedules executed hereunder, including, without limitation, all terms and conditions negotiated by its Affiliates. In the event of a conflict, the terms of a Schedule prevail over this Agreement.


The parties agree that each local transaction will only be validly concluded if the relevant Schedule is executed by authorized signatories of Lessor and Lessee involved in such transaction, and that any such Schedule may also be supplemented or amended by special terms or conditions agreed upon by Lessor or Lessee for the particular transaction.


2. Term.
On the Commencement Date Lessee will be deemed to accept the Equipment, will be bound to its Rent obligations for each item of Equipment and the term of a Schedule will begin and continue through the Initial Term and thereafter until terminated by either party upon prior written notice received during the Notice Period. No termination may be effective prior to the expiration of the Initial Term.


3. Rent and Payments.
Rent is due and payable in advance, in immediately available funds, in the currency indicated on the Schedule, on the first day of each Rent Interval to the payee and at the location specified in Lessor's invoice. The Interim Rent is due and payable when invoiced. If any payment is not made when due, Lessee will owe and pay interest at the Overdue Rate.


4. Selection and Warranty and Disclaimer of Warranties.
4.1 Selection. Lessee acknowledges that it has selected the Equipment and disclaims any reliance upon statements made by the Lessor.


4.2 Warranty and Disclaimer of Warranties. Lessor warrants to Lessee that, so long as Lessee is not in default, Lessor will not disturb Lessee's quiet and peaceful possession, and unrestricted use of the Equipment. To the extent permitted by the manufacturer, Lessor assigns to Lessee during the term of the Schedule any manufacturer's warranties for the Equipment. LESSOR MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED AS TO ANY MATTER WHATSOEVER, INCLUDING, WITHOUT LIMITATION, THE MERCHANTABILITY OF THE EQUIPMENT OR ITS FITNESS FOR A PARTICULAR PURPOSE. Lessor is not responsible for any liability, claim, loss, damage or expense of any kind (including strict liability in tort) caused by the Equipment except for any loss or damage caused by the negligent acts of Lessor. In no event is Lessor responsible for special, incidental or consequential damages.


5. Title and Assignment.


5.1 Title. Lessee holds the Equipment subject and subordinate to the rights of the Owner, Lessor, any Assignee and any Secured Party. Lessee authorizes Lessor, as Lessee's agent to the extent relevant, to prepare, execute and file in Lessee's name precautionary financing statements if applicable in the relevant jurisdiction showing the interest of the Owner, Lessor, and any Assignee or Secured Party in the Equipment, and


to insert serial numbers in Schedules as appropriate. Except as provided in Sections 5.2 and 7.2, Lessee will, at its expense, keep the Equipment free and clear from any liens or encumbrances of any kind (except any caused by Lessor) and will indemnify and hold Lessor, Owner, any Assignee and Secured Party harmless from and against any loss caused by Lessee's failure to do so.


5.2 Relocation. Upon prior written notice, Lessee may relocate Equipment to any location within the country set forth in the respective Schedule provided all additional costs arising from such relocation (including but not limited to any administrative fees, additional duties, taxes and insurance coverage) are reconciled and promptly paid by Lessee. No relocation will relieve Lessee from any of its obligations under this Agreement and the relevant Schedule.


5.3 Assignment by Lessor. The terms and conditions of each Schedule have been fixed by Lessor in order to permit Lessor to sell and/or assign or transfer its interest or grant a security interest in each Schedule and/or the Equipment to a Secured Party or Assignee. In that event the term Lessor will include the Assignee and any Secured Party. However, any assignment, sale, or other transfer by Lessor will not relieve Lessor of its obligations to Lessee and will not materially change Lessee's duties or materially increase the burdens or risks imposed on Lessee. The Lessee consents to and will acknowledge such assignments in a written notice given to Lessee. Lessee also agrees that:


(a) The Secured Party will be entitled to exercise all of Lessor's
rights, but will not be obligated to perform any of the obligations of
Lessor. The Secured Party will not disturb Lessee's quiet and peaceful
possession and unrestricted use of the Equipment so long as Lessee is
not in default and the Secured Party continues to receive all Rent
payable under the Schedule; and


(b) Lessee will pay all Rent and all other amounts payable to the
Secured Party, despite any defense or claim which it has against Lessor.
Lessee reserves its right to have recourse directly against Lessor for
any defense or claim; and


(c) Subject to and without impairment of Lessee's leasehold rights in
the Equipment, Lessee holds the Equipment for the Secured Party to the
extent of the Secured Party's rights in that Equipment.


5.4 Assignment of Liability. Customer hereby agrees that its representations and obligations under this Agreement may be assigned by Comdisco, without notice, to Lessor under any Schedule issued hereunder, and further assigned by Lessor without notice to a Secured Party or Assignee.


6. Net Obligation and Taxes and Fees.
6.1 Net Obligation. Each Schedule constitutes the Lessee's absolute and unconditional obligation to pay Rent and is not subject to any abatement, reduction, set-off, defense, counterclaim, interruption, deferment or recoupment for any reason whatsoever. Subject to Section 6.2, if Lessee is required by law or regulation to make any deduction or withholding, Lessee shall pay to Lessor an amount sufficient to assure that Lessor receives a net amount equal to the Rent.


6.2 Taxes and Fees. Lessee will pay when due or reimburse Lessor for all taxes, duties or any other charges (together with any related interest or penalties not arising from the negligence of Lessor) accrued for or arising out of the term of each Schedule against Lessor, Lessee or the Equipment by any governmental authority (except only taxes on the net income of Lessor) including, but not limited to, any withholding tax on income, value-added, turnover, stamp or recouping tax ("Additional Costs"). If required, Lessor will file any property tax returns for the Equipment and pay all property taxes due. Lessee will reimburse Lessor for property taxes within thirty (30) days of receipt of an invoice.


Lessee ensures that Lessor will receive a net amount equal to the full amount of the scheduled Rent (at the times and in the amounts as set forth on the Schedule) which it expects to receive without regard to any such amounts being subject to Additional Costs.


Lessor shall cooperate with Lessee in obtaining any clearances which Lessee shall seek to obtain which will minimize Lessee's burden in regard to Additional Costs.


7. Care, Use and Maintenance, Attachments and Reconfigurations and Inspection by Lessor.


7.1 Care, Use and Maintenance. Lessee will maintain the Equipment in good operating order and appearance, protect the Equipment from deterioration, other than normal wear and tear, and will not use the Equipment for any purpose other than that for which it was designed. If commercially available, Lessee will maintain in force a standard maintenance contract with the manufacturer of the Equipment, or another party acceptable to Lessor, and upon request will provide Lessor with a complete copy of that contract. With Lessor's prior written consent, Lessee may have the Equipment maintained by a party other than the manufacturer. Lessee agrees to pay any costs necessary for the manufacturer to bring the Equipment to the equipment specifications as of the Commencement Date, and to re-certify the Equipment as eligible for manufacturer's maintenance by termination of the applicable Schedule whether by expiration or otherwise. Lessee agrees to accept and install all routine engineering updates made available by the manufacturer so as to insure the Equipment is at the current release. The rental term will continue upon the same terms and conditions until recertification has been obtained.


7.2 Attachments and Reconfigurations. Upon Lessor's prior written consent, Lessee may reconfigure and install Attachments on the Equipment. In the event of such a Reconfiguration or Attachment, Lessee shall, upon the return of the Equipment, at its expense, restore the Equipment to the original configuration specified on the Schedule in accordance with the manufacturer's specifications and in the same operating order, repair and appearance as when installed (normal wear and tear excluded). If any parts are removed from the Equipment during the Reconfiguration or Attachment, the restoration will include, at Lessee's option, the installation of either the original removed parts or Like Parts. Alternatively, with Lessor's prior written consent which will not be unreasonably withheld, Lessee may return the Equipment with any Attachment or upgrade.


7.3 Inspection by Lessor. Upon request, Lessee, during reasonable business hours and subject to Lessee's security requirements, will make the Equipment and its related log and maintenance records available to Lessor for inspection.


8. Representations and Warranties of Lessee.
Customer and Lessee represent and warrant that for this Agreement and each Schedule:


(a) The execution, delivery and performance of the Lessee have been duly
authorized by all necessary corporate action;


(b) The individual executing was duly authorized to do so;


(c) This Agreement and each Schedule constitute legal, valid and binding
agreements of the Lessee enforceable in accordance with their terms; and


(d) The Equipment is personal property and when subjected to use by the
Lessee will not be or become fixtures under applicable law.


9. Delivery and Return of Equipment.
Lessee assumes the full expense of transportation of the Equipment to its initial location, installation, deinstallation, and return to a location (including without limitation the expense of in-transit insurance) all pursuant to Lessor's instructions and manufacturer's specifications. Regarding deinstallation, Lessee will assure that the Equipment is deinstalled by the manufacturer in accordance with the manufacturer's recommended procedures and any Environmental Law, and returned with a Verification of Decontamination in the same operating order, repair, condition and appearance as when originally installed (less normal wear and tear and depreciation) meeting all original equipment manufacturer's specifications for continued manufacturer's maintenance, and accompanied by all associated documents, manuals, maintenance records for the duration of the Initial Term or any extension thereof, spare parts and accessories. In connection with deinstallation, any Contaminant removed from the Equipment will be removed and transported by a licensed waste removal transporter. During the period subsequent to receipt of a notice under Section 2, Lessor may demonstrate the Equipment's operation in place and Lessee will supply any of its personnel as may reasonably be required to assist in the demonstrations. With respect to Equipment located outside the continental United States, Lessee agrees that if returned to United States, the Equipment will meet all United States engineering specifications, including but not limited to United States power standards.


10. Labeling.
Upon request, Lessee will mark the Equipment indicating Lessor's interest. Lessee will keep all Equipment free from any other marking or labeling which might be interpreted as a claim of ownership.


11. Indemnity.
Lessee will indemnify and hold Lessor, any Assignee and any Secured Party harmless from and against any and all claims, costs, expenses, damages and liabilities, including reasonable attorneys' fees, arising out of the ownership (for strict liability in tort only), selection, possession, renting, operation, control, use, maintenance, delivery, return or other disposition of the Equipment. However, Lessee is not responsible to a party indemnified hereunder for any claims, costs, expenses, damages and liabilities occasioned by the negligent acts of such indemnified party. Lessee agrees to carry bodily injury and property damage liability insurance during the term of the Agreement with insurance providers acceptable to Lessor, in amounts and against risks customarily insured against by the Lessee on equipment owned by it. Any amounts received by Lessor under that insurance will be credited against Lessee's obligations under this Section.


12. Risk of Loss.
Effective upon delivery and until the Equipment is returned, Lessee relieves Lessor of responsibility for all risks of physical damage to or loss or destruction of the Equipment. Lessee will carry casualty insurance for each item of Equipment in an amount not less than the Casualty Value. All policies for such insurance must be with insurance providers acceptable to Lessor and will name the Lessor and any Secured Party as additional insured and as loss payee, and will provide for at least thirty (30) days prior written notice to the Lessor of cancellation or expiration. The Lessee will furnish appropriate evidence of such insurance. Lessee shall promptly repair any damaged item of Equipment unless such Equipment has suffered a Casualty Loss. Within fifteen (15) days of a Casualty Loss, Lessee will provide written notice of that loss to Lessor and Lessee will, at Lessor's option, either (a) replace the item of Equipment with Like Equipment and marketable title to the Like Equipment will automatically vest in Lessor, or (b) pay the Casualty Value and after that payment and the payment of all other amounts due and owing, Lessee's obligation to pay further Rents for the item of Equipment will cease.


13. Default, Remedies and Mitigation.


13.1 Default. The occurrence of any one or more of the following Events of Default by Customer or by Lessee constitutes a default under this Agreement or any Schedule entered into hereunder.


(a) Failure to pay Rent or other amounts payable by Customer or Lessee
when due if that failure continues for ten (10) days after written
notice; or


(b) Failure to perform any other term or condition of this Agreement or
the Schedule or the material inaccuracy of any representation or
warranty made by Customer or Lessee in this Agreement or the Schedule or
in any document or certificate furnished to the Lessor hereunder if that
failure or inaccuracy continues for fifteen (15) days after written
notice; or


(c) An assignment for the benefit of its creditors, the failure to pay
its debts when due, the insolvency of Lessee, the filing by or the
filing against Customer or Lessee of any petition under any bankruptcy
or insolvency law or for the appointment of a trustee or other officer
with similar powers, the adjudication of Customer or Lessee as
insolvent, the liquidation of Customer or Lessee, or the taking of any
action for the purpose of the foregoing; or


13.2 Remedies. Upon the occurrence of any of the above Events of Default, Lessor, at its option, may, as to Customer or Lessee:


(a) enforce performance of the provisions of the applicable Schedule by
appropriate court action in law or in equity;


(b) recover any damages and or expenses, including Default Costs;


(c) with notice and demand, recover all sums due and accelerate and
recover the present value of the remaining payments stream of all Rent
due under the defaulted Schedule (discounted at the same rate of
interest at which such defaulted Schedule was discounted with a Secured
Party plus any prepayment fees charged to Lessor by the Secured Party
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