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Exhibit 10.1
EQUIPMENT LEASE
This Equipment Lease Agreement (hereinafter referred to as the "Lease")
is made and entered into as of the 1st day of June, 2000 by and between Medicus
Corporation, a Delaware corporation (hereinafter referred to as the "Lessor"),
with its principal address at 919 Conestoga Road, Suite 106, Building #2,
Rosemont, PA 19010, and Integra LifeSciences Corporation, a Delaware corporation
(hereinafter referred to as "Lessee"), whose principal address is 105 Morgan
Lane, Plainsboro, NJ 08536.
WITNESSETH:
1. Lease. The Lessor shall Lease to the Lessee the following equipment
and appurtenances, hereinafter variously referred to as machinery, equipment:
See Attached "Schedule A"
2. Delivery and Possession. The Lessee shall take possession of the
equipment at 515 South Franklin Street, West Chester, PA on or before June 1,
2000 and shall cause it to be shipped at the Lessee's sole cost and expense to
the principal location of Lessee's business.
3. Term and Commencement.
(a) Term. The term of this Lease shall commence on June 1,
2000 (the "Commencement Date") and shall terminate on May 31, 2010 unless sooner
terminated or extended as hereinafter set forth.
(b) Option to Renew. Provided that the Lessee is not in
default of any material obligation to Lessor, its successors or assigns (if any)
under this Lease, Lessor hereby grants to Lessee an option to renew this Lease
for an additional term of one year and ten months ending on March 31, 2012. (the
"Option Period").
(i) Notice to Exercise Option. To exercise the
option under this Lease, Lessee must notify Lessor in writing, not less than
ninety (90) days prior to the expiration date of the term that it elects to
exercise said option.
4. Rent.
(a) As rent, the Lessee shall pay to Lessor each month during
the Term of this Lease the sum of seven thousand five hundred dollars ($7500.00)
with the first payment being due on the first day of the month following the
Commencement Date, and all payments on the first day of each calendar month
thereafter.
(b) All rental payments hereunder shall be paid to the Lessor
as provided above, without notice or demand.
(c) If any installment is paid more than fifteen (15) days
after the date said installment is due, the Lessee shall pay Lessor an
additional sum equal to one and one half percent (1.5%) of the amount of the
installment due and unpaid or the highest allowable late fee permitted by law in
the jurisdiction in which the equipment is located, whichever is less ("Late
Payment Charge"), and said Late Payment Charge shall be due for each and every
month thereafter until said delinquent amount and all Late Payment Charges have
been paid thereon. Said amount shall be due not as a penalty but as liquidated
damages to reimburse the Lessor for the additional expenses it incurs therefrom,
the exact amount of which the parties stipulate and agree is difficult or
impossible to compute.
5. Operation. The equipment shall be principally operated at 105 Morgan
Lane, Plainsboro, NJ 08536 or at such other location as Lessee shall determine.
Lessee shall have the right to move the equipment upon ten days written notice
of Lessor. However, notwithstanding the foregoing, Lessee shall not move the
equipment outside the State of New Jersey or the Commonwealth of Pennsylvania
without the written consent of Lessor. Said consent shall not be unreasonably
withheld.
6. Use. Lessee shall use the equipment in a careful and proper manner
and shall comply with all national, state, municipal, police and other laws,
ordinances and regulations in anyway relating to the possession, use, or
maintenance of the equipment. If at any time during the term hereof, the Lessor
supplies the Lessee with labels, plates, or other markings stating that the
equipment is owned by Lessor, the Lessee shall affix and keep the same upon a
prominent place on the equipment.
7. Installation and Service. The Lessor shall assign to the Lessee all
the vendor's warranties and guarantees, if any, BUT MAKES NO REPRESENTATION OR
WARRANTY WITH RESPECT TO THE EQUIPMENT INCLUDING WARRANTIES OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE and assumes no obligation with respect to
the equipment's operation or maintenance.
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8. Liability of Lessor. THE LESSOR SHALL NOT BE LIABLE FOR ANY DAMAGES
BY REASON OF THE FAILURE OF THE EQUIPMENT TO OPERATE OR OF FAULTY OPERATION OF
THE EQUIPMENT OR SYSTEM. THE LESSOR SHALL NOT BE HELD RESPONSIBLE FOR ANY DIRECT
OR CONSEQUENTIAL DAMAGES OR LOSSES RESULTING FROM THE INSTALLATION, OPERATION,
OR USE OF THE PRODUCTS OR MATERIALS FURNISHED BY LESSOR.
9. Lessor's Right of Inspection. Lessee shall permit Lessor and its
agents, upon at least one days written notice, to enter into and upon the
premises where the equipment is operated at all reasonable times for the purpose
of inspecting the equipment or observing its use. The Lessee shall give the
Lessor immediate notice of any attachment or other judicial process affecting
any item of equipment.
10. Alterations. Without the prior written consent of Lessor, Lessee
shall not make at any time during the Term of this Lease, changes, additions,
improvements and/or alterations to the equipment unless they are initiated and
recommended by the manufacturer of the equipment to improve performance or for
modernization. All additions and improvements of any kind or nature made to the
equipment shall belong to and become the property of Lessor upon the expiration
or earlier termination of this Lease.
11. Repairs. The Lessee, at its own cost and expense, shall keep the
equipment in good repair, condition and working order and shall furnish any and
all parts, mechanisms, and devices required to keep the equipment in good
mechanical and working order.
12. Risk of Loss and Damage; Stipulated Loss Value.
(a) The Lessee hereby assumes and shall bear the entire risk
of loss and damage to the equipment from any and every cause. No loss or damage
to the equipment or any part thereof shall impair any obligation of the Lessee
under this Lease which shall continue in full force and effect, including but
not limited to obligations of the Lessee to make rental payments.
(b) In the event of a Loss, the Lessee, pay the Lessor
therefore in cash the replacement cost of the item(s), but in no event less than
the net present value of the rent discounted at nine percent (9%) per annum.
Upon the cash payment this lease shall terminate.
13. Surrender. Upon the expiration or termination of the Lease, Lessee
shall surrender the equipment to Lessor in good repair and condition, ordinary
wear and tear excepted unless the Lessee has paid the Lessor in cash the
Stipulated Loss Value of the items(s) of equipment pursuant to Paragraph 12
above. The equipment shall be returned either (i) by delivering the equipment at
the Lessee's cost and expense to such place as the Lessor shall specify or (ii)
by loading the equipment at the Lessee's sole cost and expense on board such
carrier as the Lessor shall specify and shipping the same, freight collect, to
the destination designated by Lessor.
14. Insurance. Lessee shall obtain and maintain during the term of this
Lease, fire and all risk insurance, insuring against all reasonable perils and
liabilities, for one hundred percent (100%) of the replacement value of the
equipment as determined by the Lessor; and shall carry public liability,
contractual liability, and property damage insurance covering the equipment, its
operation and use. Such insurance shall be issued by an insurance company
licensed to do business in the State of New Jersey and shall be in the joint
names of Lessor and Lessee. The Lessee shall pay the premiums and deliver the
policies or duplicates thereof to Lessor. Each insurer shall agree, by
endorsement of the policy or policies issued by it or by independent instrument
furnished to the Lessor, that it will give Lessor thirty (30) days written
notice before the policy in question shall be cancelled or altered. The proceeds
of insurance, at the option of the Lessee, shall be applied either (i) towards
the replacement, restoration, or repair of the equipment, or (ii) toward payment
of the obligations of the Lessee. If, within ten days following notice by the
Lessor to the Lessee, the Lessor has failed to receive policies or certificates
of insurance in accordance with this paragraph, the Lessor shall, at the
Lessor's option, have the right to procure the insurance and any sums so
expended by the Lessor shall thereafter be reimbursed by the Lessee to the
Lessor and shall become additional rent under this lease and shall be payable in
its entirety, on the next rental payment date or within 30 days, whichever event
is sooner.
15. Liens, Taxes, Assessments, and Licenses. The Lessee shall keep the
equipment free and clear of all levies, liens, and encumbrances and shall pay
all license fees, registration fees, assessments, charges, and taxes (municipal,
state, and federal) which may now or hereafter be imposed upon the ownership,
leasing, renting, sale, possession, or use of the equipment, excluding however,
all taxes on or measured by the Lessor's income. The Lessee shall also provide
all permits and licenses, if any, necessary for the installation and operation
of the equipment or any parts thereof. The Lessee shall pay, or reimburse to the
Lessor, forthwith as additional rent if the Lessor is charged for the same, all
freight, packing, and handling charges (including related insurance charges) as
billed by manufacturer, vendor, or carrier. If Lessee shall fail to pay the
required fees, assessments, charges and taxes, the Lessor may pay the same. In
that event, the cost thereof shall become additional rent and shall be due and
payable to the Lessor on the next rental payment date or within 30 days,
whichever event is sooner.
16. Encumbrances and Breakages. The Lessee shall not lease, sublease,
mortgage or otherwise encumber, remove, or suffer to be removed from the
stipulated premises or part with possession of the equipment or any part hereof,
and shall pay to the Lessor as additional rent any charges that may be due to
cover replacement, broken, or missing parts or service at the vendor's regular
established price if the Lessor shall, at its sole option, elect to make repairs
or replacement.
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17. Warranties. The Lessor shall request the supplier to authorize the
Lessee to enforce in its own name all warranties, agreements, or
representations, if any, which may be made by the supplier to the Lessee or
Lessor, BUT THE LESSOR ITSELF MAKES NO EXPRESS OR IMPLIED WARRANTIES AS TO ANY
MATTER WHATSOEVER, INCLUDING, WITHOUT LIMITATION, THE CONDITION OF EQUIPMENT,
ITS MERCHANTABILITY OR ITS FITNESS FOR ANY PARTICULAR PURPOSE. NO DEFECT IN, OR
UNFITNESS OF, THE EQUIPMENT SHALL RELIEVE THE LESSEE OF THE OBLIGATION TO PAY
RENT OR ANY OTHER OBLIGATION UNDER THIS LEASE.
18. Indemnity. The Lessee shall indemnify the Lessor against, and shall
hold the Lessor harmless from, any and all claims, actions, suits, proceedings,
costs, expenses, damages, and liabilities, including attorney's fees, arising
out of, connected with, or resulting from the equipment, including without
limiting the generality of the foregoing, the manufacture, selection, delivery,
possession, use, operation or return of the equipment.
19. Default. If the Lessee fails to pay any rent or other amount herein
provided within fifteen (15) days when the same shall become due and payable, or
if the Lessee fails to observe, keep or perform any other provisions of this
lease required by it to be observed, kept, or performed, and such failure is not
cured within fifteen (15) days of receipt of written notice of such failure from
Lessor, or if any execution or other writ or process shall be issued in any
action or proceeding against the Lessee whereby the equipment may be taken or
distrained, the Lessor may exercise any one or more of the following remedies:
(a) To declare the entire amount of rent immediately due and
payable as to any or all items of equipment, without notice or demand to the
Lessee.
(b) To sue for and recover all rents, and other payments, then
accrued or thereafter accruing, with respect to any or all items of equipment.
(c) To take possession of any or all items of equipment,
without demand or notice, wherever the same shall be located, without any court
order or other process of law. The Lessee hereby waives any and all damage
occasioned by such taking of possession. Any said taking of possession shall not
constitute a termination of this lease as to any or all items of equipment
unless the Lessor expressly so notifies the Lessee in writing.
(d) To terminate this Lease as to any or all items of
equipment.
(e) To pursue any other remedy at law or in equity.
Notwithstanding any such repossession or any other action, which Lessor may
take, the Lessee shall remain liable for the full performance of all obligations
on its part to be performed under this Lease; provided however, that if the
Lessor obtains any money for the equipment from rerental or sale thereof, said
moneys, less expenses, shall be credited to the last payments of the Lessee's
obligation.
20. Bankruptcy or Insolvency. Neither this Lease nor any interest
therein is assignable or transferable by operation of law. If any proceeding
under any bankruptcy law is commenced by or against Lessee, or if the Lessee is
adjudged insolvent, or if the Lessee makes an assignment by the benefit his
creditors, or if a writ of attachment or execution is levied on any item or
items of equipment and is not released or satisfied within ten days thereafter,
or if a receiver is appointed in any proceeding or action, to which the Lessee
is a party, with authority to take possession or control of any item or items of
the equipment, the Lessor shall have and may exercise any one or more of the
remedies set forth in paragraph 19; and this lease shall, at the option of the
Lessor, and without further notice immediately terminate and shall not be
treated as an asset of the Lessee after the exercise of said option.
21. Concurrent Remedies. No right or remedy conferred upon or reserved
to the Lessor is exclusive of any other right or remedy in this Lease or by law
or in equity provided or permitted; but each shall be cumulative of every other
right or remedy given hereunder or now or hereafter existing at law or in equity
or by status or otherwise, and may be enforced concurrently therewith or from
time to time.
22. Lessor's Expenses. The Lessee shall pay the Lessor all costs and
expenses, including attorney's fees, incurred by the Lessor in exercising any of
its rights or remedies under this Lease or enforcing any of the terms,
conditions, or provisions hereof.
23. Lessee's Assignment. Without the prior written consent of Lessor,
the Lessee shall not (a) assign, transfer, pledge, or hypothecate this Lease,
the equipment or any part thereof, or any interest therein to anyone, other than
an affiliate of Lessee, or (b) sublet or lend the equipment or any part thereof,
or permit the equipment or any part thereof to be used by anyone other than the
Lessee or the Lessee's employees or affiliates. Consent to any of the foregoing
prohibited acts shall apply only in the given instance, and shall not be a
consent to any subsequent like act by the Lessee or any other person. Subject
always to the foregoing, this Lease shall inure to the benefit of, and is
binding upon, the heirs, legatees, personal representatives, successors, and
assigns of the parties hereto.
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24. Lessor's Assignment. All rights of Lessor whether hereunder may be
assigned, pledged, mortgaged, transferred, or otherwise disposed of, in whole or
in part, without notice to Lessee.
25. Ownership. The equipment is, and shall at all times be and remain,
the sole and exclusive property of the Lessor which shall be entitled to the
Investment Credit, if any, to the extent provided under Section 38 of the
Internal Revenue Code; and the Lessee shall have no right, title and interest in
or to the equipment except as expressly set forth in this Lease.
26. Separability. Each provision hereof shall be separate and
independent and the breach of any such provision by Lessor shall not discharge
or relieve Lessee from its obligations to perform each and every covenant to be
performed by Lessee hereunder. If any provision hereof or the application
thereof to any person or circumstance shall to any extent be invalid or
unenforceable, the remaining provisions hereof, or the application of such
provision to persons or circumstances other than those as to which it is invalid
or unenforceable, shall not be affected thereby, and each provision hereof shall
be valid and enforceable to the extent permitted by law.
27. Governing Law. This Lease shall be governed by and interpreted in
accordance with the laws of the Commonwealth of Pennsylvania.
28. Headings. The headings of various paragraphs herein and hereto have
been inserted for convenient reference only and shall not to any extend have the
effect of modifying or amending the express terms and provisions of this Lease.
29. Personal Property. The equipment is, and shall at all times be and
remain, personal property, notwithstanding that the equipment or any part
thereof may now be, or hereafter become, in any manner, affixed, attached,
embedded or permanently resting upon real property or any building thereon, or
attached in any manner to what is permanent, as by means of cement, plaster,
nails, bolts, screws, or otherwise.
30. Notice. Any and all notices or demands by or from Lessor to Lessee,
or lessee to Lessor, shall be in writing. They shall be served either
personally, by certified mail or by telegraphic method, or by a nationally
recognized courier service such as Federal Express or United Parcel Service
where a receipt is produced evidencing confirmation of service. If served
personally or by a nationally recognized courier service, service shall be
conclusively made at the time of service. If served by certified mail, service
shall be conclusively deemed upon deposit thereof in the United States mail,
postage prepaid. All notices shall be sent as follows:
To the Lessor:
Medicus Corporation
919 Conestoga Road
Suite 106, Building #2
Rosemont, PA 19010
To the Lessee:
Integra LifeSciences Corporation
105 Morgan Lane
Plainsboro, NJ 08536
The parties agree to provide each other promptly with any address
changes.
31. Accord and Satisfaction. No payment by Lessee or receipt by Lessor
of a lesser amount than the correct rent or other moneys due under the Lease
shall be deemed to be other than a payment on account, nor shall any endorsement
or statement on any check or letter accompanying any check or payment of rent or
any other amounts owed to Lessor be deemed to effect or evidence an accord and
satisfaction, and Lessor may accept such check or payment without prejudice to
Lessor's right to recover the balance of the rent or other amount owed and
pursue any other remedy provided in this Lease
32. Miscellaneous Provisions.
(a) If the Lessee consists of more than one person, then the
covenants, agreements and obligations of the respective parties shall be binding
upon all such parties, jointly and severally.
(b) Nothing contained in this Lease shall be deemed or
construed by the parties hereto, or any other third party, to create the
relationship of principal and agent, or of partnership or of joint venture, or
of trustee and beneficiary, or of any other association between the parties
hereto other than is clearly and expressly set forth in this Lease, other than
that of Lessor and Lessee, and neither the method of payment of any moneys
hereunder, nor any other provisions of this Lease, nor any relationship other
than Lessor and Lessee.
(c) This Lease may be amended, modified and changed only by a
written instrument signed by all the parties hereto.
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(d) The various rights, options, elections, powers and
remedies of a party or parties to this Lease shall be construed as cumulative,
and no one of them exclusive of any others or of any legal or equitable remedy
which said party or parties might otherwise have in the event of breach or
default in terms hereof, and the exercise of one right or remedy by a party or
parties shall not in any way impair his rights to any other right or remedy
until all obligations imposed on a party or parties have been fully performed.
(e) This Lease may be executed in any number of counterparts,
each of which when so executed and delivered shall be deemed an original, but
such counterparts together shall constitute but one Lease.
(f) It is expressly understood that this Lease contains all
terms, covenants, conditions and agreements between the parties hereto relating
to the subject matter of this Lease, and that no prior agreements or
understandings, either oral or written, pertaining to the same, shall be valid
or of any force or effect, and that the terms, covenants, conditions and
provisions of this Lease cannot be altered, changed, modified or added to except
in writing by all the parties hereto.
(g) Should any party or parties hereto institute any action or
proceeding in Court to enforce any provision or provisions hereof, or for
damages by reason of any default under this Lease, or for a declaration of such
party's or parties' rights or obligations hereunder, or for any other judicial
remedies, the prevailing party or parties shall be entitled to receive from the
losing party or parties such amount as the Court may adjudge to be reasonable
attorney's fees for the services rendered the party or parties prevailing in any
such action or proceeding.
(h) This Lease shall be binding upon and inure to the benefit
of the personal and legal representatives, successors and assigns of the parties
and also upon the heirs, executors and administrators of any individuals
executing this Lease.
(i) In interpreting this Lease, the masculine includes the
feminine and neuter genders; the plurals include the singular, and vice versa as
the context may require.
33. No Waiver. The failure of Lessor or Lessee to insist upon the
strict performance of any provision of this Lease, or the failure by Lessor or
Lessee to exercise any right, option or remedy hereby reserved shall not be
construed as a waiver for the future of any such provision, right, option or
remedy or as a waiver of a subsequent breach thereof. No provision of this Lease
shall be deemed to have been waived unless such waiver shall be in writing
signed by the party waiving such provision.
34. Authority. Each party represents to the other that the execution
and delivery of this Lease and the performance of its respective obligations
hereunder have been authorized by all parties necessary to make this Lease a
valid, binding and enforceable Agreement in accordance with the terms hereof,
and the person executing this Lease on behalf of each party likewise has all
requisite authority so to do.
IN WITNESS WHEREOF, the parties hereto have caused this Lease
to be executed as of the date first above written.
LESSOR:
ATTEST: Medicus Corporation
By:
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LESSEE:
ATTEST: Integra LifeSciences Corporation
By:
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