AMENDED AND RESTATED MASTER CAPITAL LEASE AGREEMENT (Originally executed November 30, 2005, amended and restated as of December 18, 2007)
EXHIBIT 10.1
IMPORTANT NOTE: Portions of Exhibit 10.1, where indicated by an asterisk, are omitted and filed
separately with the Commission pursuant to a request for confidential treatment.
separately with the Commission pursuant to a request for confidential treatment.
AMENDED AND RESTATED MASTER CAPITAL LEASE AGREEMENT
(Originally executed November 30, 2005, amended and restated as of December 18, 2007)
(Originally executed November 30, 2005, amended and restated as of December 18, 2007)
Lessor: |
IntraLase Corp. | |
| 0000 Xxxxxxxx | ||
| Xxxxxx, XX 00000 | ||
Lessee: |
TLC Vision Corporation | |
| 000 Xxxxxxxxx Xxxxxx Xxxxx | ||
| Xx. Xxxxx, XX 00000 | ||
Leased |
||
Equipment: |
* of IntraLase Lasers |
Terms: For each Laser leased hereunder, $* for lasers installed prior to *, and $* for lasers
installed after * (“Lease Payments”) plus applicable taxes for * months from the date of
installation and acceptance. With respect to lasers installed prior to *, the payments received by
IntraLase in excess of $* per month shall be credited to future monthly installments until such
excess payment is extinguished and thereafter, the Lease Payments shall continue over the remainder
of the term for each Laser. By way of example, *.
1. LEASE AGREEMENT. TLC Vision (USA) Corporation (“Lessee”) hereby leases from
IntraLase Corp. (“Lessor”), and Lessor leases to Lessee, the personal property described
above, together with any replacement parts, additions, repairs or accessories now or
hereafter incorporated in or affixed to it (hereinafter referred to individually as a
“Laser” and collectively as the “Equipment”).
2. ACCEPTANCE OF EQUIPMENT. Lessee agrees to inspect the Equipment and to execute a
Certificate of Acceptance, as provided by Lessor, after the Equipment has been delivered and
installed and is operable in accordance with manufacturer specifications. Lessee hereby
authorizes Lessor to insert in this Lease Agreement or any sublease agreement covering any
specific item of Equipment serial numbers or other identifying data, with respect to such
Equipment.
3. DISCLAIMER OF WARRANTIES AND CLAIMS; LIMITATION OF REMEDIES, EXCEPT AS SPECIFICALLY
SET FORTH ON EXHIBIT A. THERE ARE NO WARRANTIES BY OR ON BEHALF OF LESSOR. Lessee
acknowledges and agrees by his signature below as follows:
(a) EXCEPT AS SPECIFICALLY SET FORTH ON EXHIBIT A, LESSOR MAKES NO WARRANTIES EITHER
EXPRESS OR IMPLIED AS TO THE CONDITION OF THE EQUIPMENT, ITS MERCHANTABILITY, ITS FITNESS OR
SUITABILITY FOR ANY PARTICULAR PURPOSE, ITS DESIGN, ITS CAPACITY, ITS QUALITY OR WITH
RESPECT TO ANY CHARACTERISTICS OF THE EQUIPMENT.
(b) Except as specifically set forth on Exhibit A, Lessee leases the Equipment “as is”
and with all faults.
(c) Lessee specifically acknowledges that the Equipment is leased to Lessee solely for
commercial or business purposes and not for personal, family, household or agricultural
purposes.
(d) LESSEE SHALL HAVE NO REMEDY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES AGAINST LESSOR;
and
(e) NO DEFECT, DAMAGE OR UNFITNESS OF THE EQUIPMENT FOR ANY PURPOSE SHALL RELIEVE
LESSEE OF THE OBLIGATION TO MAKE LEASE PAYMENTS OR RELIEVE LESSEE OF ANY OTHER OBLIGATION
UNDER THIS LEASE AGREEMENT. The parties have specifically negotiated and agreed to the
foregoing paragraph.
NO SALESMAN OR AGENT OF LESSOR IS AUTHORIZED TO WAIVE OR ALTER ANY TERM OR CONDITION OF THIS LEASE
AGREEMENT, AND NO REPRESENTATION AS TO THE EQUIPMENT OR ANY OTHER MATTER BY SUCH SALESMAN OR AGENT
OF LESSOR SHALL IN ANY WAY AFFECT LESSEE’S DUTY TO PAY THE LEASE PAYMENTS AND TO PERFORM LESSEE’S
OBLIGATIONS SET FORTH IN THIS LEASE AGREEMENT.
4. ASSIGNMENT BY LESSEE PROHIBITED. WITHOUT LESSOR’S PRIOR WRITTEN CONSENT, LESSEE
SHALL NOT ASSIGN THIS LEASE AGREEMENT OR SUBLEASE THE EQUIPMENT OR ANY INTEREST THEREIN, OR
PLEDGE OR TRANSFER THIS LEASE AGREEMENT, OR OTHERWISE DISPOSE OF THE EQUIPMENT COVERED
HEREBY. It is agreed that use of the Equipment by Lessee’s certified affiliated and open
access doctors will not be considered a violation of this section.
5. EXPENSE OF ENFORCEMENT AND SEVERABILITY. In the event of any legal action with
respect to this Lease Agreement, the prevailing party in any such action shall be entitled
to reasonable attorneys’ fees, together with all costs and expenses incurred in pursuit
thereof. This Lease Agreement is intended to constitute a valid and enforceable legal
instrument and no provision of this Lease Agreement that may be deemed unenforceable shall
in any way invalidate any other provision or provisions hereof, nil of which shall remain in
full force and affect.
6. LEASE PAYMENTS. Lessee agrees to make lease payments, in advance, as set forth on
Exhibit B. *.
7. CHOICE OF LAW. This Lease Agreement shall be considered to have been made in the
State of California and shall be interpreted in accordance with the laws and regulations of
the State of California.
8. COMMENCEMENT, EXPIRATION AND RENEWAL. This Lease Agreement shall commence upon
Lessor’s acceptance of it. Lessor shall have no obligation to Lessee under this Lease
Agreement for any specific Laser leased hereunder if Lessee fails to execute and deliver to
Lessor a Certificate of Acceptance for such Laser within five days after it is delivered to
Lessee. Unless earlier terminated or canceled by Lessor, this Lease Agreement shall remain
in force until all obligations of the Lessee to the Lessor hereunder have been satisfied and
discharged.
9. NO ORAL MODIFICATIONS; NO WAIVER. No provision of this Lease Agreement shall be
modified or rescinded unless in writing signed by a duly authorized representative of Lessor
and Lessee. Waiver by either party of any provision hereof in one instance shall not
constitute a waiver as to any other instance.
10. SPECIFIC POWER OF ATTORNEY. In the event it is necessary to amend the terms of
this Lease Agreement to reflect a change in the description of the Equipment, Lessee agrees
that any such amendment shall be described in a Letter from Lessor to Lessee and unless 15
days after the date of such letter Lessee objects in writing to Lessor, this Lease Agreement
shall be deemed amended and such amendment shall be incorporated in this Lease Agreement
herein as if originally set forth. Lessee grants to Lessor a specific power of attorney for
Lessor to use solely as follows: (1) Lessor may sign and file on Lessee’s behalf any
document Lessor reasonably deems necessary to perfect or protect Lessor’s interest in the
Equipment or pursuant to the Uniform Commercial Code; and (2) Lessor may sign, endorse or
negotiate for Lessor’s benefit any instrument representing proceeds from any policy of
insurance covering the Equipment.
11. LOCATION. The Equipment shall be installed at such Lessee locations as shall be
mutually agreed by Lessor and Lessee and shall be kept at the Lessee locations where
originally installed and shall not be moved without Lessor’s prior written consent which
will not be unreasonably withheld.
12. USE. Lessee shall use the Equipment in a careful manner, shall comply with all
laws relating to its possession, use, or maintenance, and shall not make any alterations,
additions, or improvement to the Equipment without Lessor’s prior written consent. All
additions, repairs at improvements made to the Equipment shall belong to Lessor.
13. OWNERSHIP; PERSONALTY. The Equipment is, and shall remain, the property of Lessor,
and Lessee shah have no right, title, or interest in the Equipment except as expressly set
forth in this Lease Agreement. The Equipment shall remain personal property even though
installed in or attached to real property.
14. SURRENDER. By this Lease, Lessee does not acquire ownership rights in any piece of
Equipment until the end of the Lease Term for such Equipment and subject to satisfaction of
all payment and other obligations with respect thereto. In the event of a default under
Paragraph 20, hereof, Lessee, at its expense, shall return the Equipment in good repair,
ordinary wear and tear resulting from proper use thereof alone excepted, by delivering it,
packed and ready for shipment to such place or carrier as Lessor may specify.
15. LOSS AND DAMAGE. Lessee shall at all times after installation and acceptance of
the Equipment bear the entire risk of loss, theft, damage or destruction of the Equipment
from any cause whatsoever, and no loss, theft, damage or destruction of the Equipment shall
relieve Lessee of the obligation to make Lease Payments or to comply with any other
obligation under this Lease Agreement. In the event of damage to any part of the Equipment,
Lessee shall immediately place the same in good repair at Lessee’s expense. If Lessor
determines that any part of the Equipment is lost, stolen, destroyed, or damaged beyond
repair, Lessee shall pay Lessor in cash the following: (i) all amounts due by Lessee to
Lessor under this Lease Agreement up to the date of the loss; and (ii) the aggregate amount
of all remaining lease payments. Upon Lessor’s receipt of payment as set forth above,
Lessee shall be entitled to title to the Equipment without any warranties except such as may
then be in force, if any, for the balance of such existing warranty period. If insurance
proceeds are used to fully comply with this subparagraph, the balance of any such proceeds
shall go to Lessee to compensate for loss of use of the Equipment for the remaining term of
the Lease Agreement.
16. INSURANCE, LIENS; TAXES. Lessee shall provide and maintain insurance against loss,
theft, damage, or destruction of the Equipment in an amount not less than the full
replacement value of the Equipment, with loss payable to Lessor. Lessee also shall provide
and maintain comprehensive general all-risk liability insurance insuring Lessor and Lessee
with a severability of interest endorsement, or its equivalent, against any and all loss or
liability for all damages, either to persons or property or otherwise, which might result
from or happen in connection with the use or operations of the Equipment, with such limits
and with an insurer satisfactory to Lessor. Each policy shall expressly provide that said
insurance as to Lessor and its assigns shall not be invalidated by any act, omission, or
neglect of Lessee and cannot be canceled without 30 days’ prior written notice to Lessor.
As to each policy Lessee furnish to Lessor a certificate of insurance from the insurer,
which certificate shall evidence the insurance coverage required by this paragraph. Lessor
shall have no obligation to ascertain the existence of or provide any insurance coverage for
the Equipment or for Lessee’s benefit. If Lessee fails to provide such insurance, Lessor
will have the right but no obligation to have such insurance protecting Lessor placed at
Lessee’s expense. Such placement will result in an increase in Lessee’s periodic payments,
such increase being attributed to Lessor’s costs of obtaining such insurance and any
customary charge or fees of Lessor’s or its designee associated with such insurance. Lessee
shall keep the Equipment free and clear of all levies, liens and encumbrances. Lessee shall
pay all charges and taxes (local, state and federal) which may now or hereafter be imposed
upon the ownership, leasing, rental, sale, purchase, possession, or use of the Equipment,
excluding, however, all taxes on or measured by Lessor’s net income. If Lessee fails to pay
said charges or taxes, Lessor shall have the right, but shall not be obligated, to pay such
charges or taxes. In that event, Lessor shall notify Lessee of such payment and Lessee
shall repay to Lessor the cost thereof within 15 days
after such notice is mailed to Lessee. Lessor shall maintain comprehensive general
liability insurance including but not limited to product liability coverage and shall
provide Lessee with evidence of such insurance upon request.
17. *
18. ASSIGNMENT BY LESSOR. Any assignee of Lessor shall have all of the rights but none
of the obligations of Lessor under this Lease Agreement. Lessee shall recognize and hereby
consents to any assignment of this Lease Agreement by Lessor, and shall not assert against
the assignee any defense, counterclaim or setoff that Lessee may have against Lessor.
Subject to the foregoing, this Lease Agreement inures to the benefit of and is binding upon
the heirs, devisees, personal representatives, survivors, successors in interest, and
assigns of the parties hereto.
19. TIME OF ESSENCE. Time is of the essence of this Lease, and this provision shall
not be implied waived by the acceptance on occasion of late or defective performance.
20. DEFAULT. Lessee shall be in default if: (a) Lessee shall fail to make any payment
due under the terms of this Lease Agreement for a period of 15 days from the due date
thereof, or (b) Lessee shall fail to observe, keep, or perform any provision of this Lease,
and such failure shall continue for a period of 30 days after written notice thereof; or (e)
Lessee has made any misleading or false statement in connection with application for or
performance of this Lease Agreement; or (d) the Equipment or any part thereof shall be
subject to any lien, levy, seizure, assignment, transfer, bulk transfer, encumbrance,
application, attachment, execution, sublease, or sale without prior written consent of
Lessor, or (e) Lessee ceases to exist; or (f) Lessee defaults on any other agreement it has
with Lessor and Lessor notifies Lessee in writing that much default is a default hereunder
and such default is not cured within 30 days after such written notice thereof, or (g)
Lessee files or has filed against it a petition under the bankruptcy laws.
21. REMEDIES. If Lessee is in default, Lessor, with notice to Lessee, shall have the
right to exercise any one or more of the following remedies, concurrently or separately, and
without any election of remedies being deemed to have been made: (a) Lessor may enter upon
Lessee’s premises and without any court order or other process of law may repossess and
remove the Equipment, or render the Equipment unusable without removal, with notice to
Lessee. Lessee hereby waives any trespass or right of action for damages by reason of such
entry, removal, or disabling. Any such repossession shall not constitute a termination of
this Lease Agreement unless Lessor so notifies Lessee in writing; (b) Lessor may require
Lessee, at its expense, to return the Equipment in good repair, ordinary wear and tear
resulting from proper use thereof alone excepted, by delivering it, packed and ready for
shipment to such place or carrier as Lessee may specify; (c) Lessor may cancel or terminate
this Lease Agreement and may retain any and all prior payments paid by Lessee; (d) Lessor
may declare all sums due and to become due under this Lease Agreement immediately due and
payable, including as to any or all items of Equipment; (e) Lessor may release the
Equipment, without notice to Lessee, to any third party, upon such terms and condition as
Lessee alone shall determine, or may sell the Equipment, without notice to Lessee, at
private or public sale, at which the Lessor may be the purchaser; (f) Lessor may xxx for and
recover from Lessee the sum of all unpaid loans and other payments due under this Lease
Agreement then accrued, all accelerated future payments due under this Lease Agreement, less
the net proceeds of disposition, if any, of the Equipment; (g) to pursue any other remedy
available at law, by statute or in equity. No right or remedy herein conferred upon or
reserved to Lessor is exclusive of any other right or remedy herein, or by law or by equity
provided or permitted, but each shall be cumulative of every other right or remedy given
herein or now or hereafter existing by law or equity or by statute or otherwise, and may he
enforced concurrently therewith or from time to time. No single or partial exercise by
Lessor of any right or remedy hereunder shall preclude any other or further exercise of any
other right or remedy.
22. MULTIPLE LESSEES. Lessor may, with the consent of any one of the Lessees
hereunder, modify, extend or change any of the terms hereof without consent or knowledge of
the others, without in any way releasing, waiving or impairing any right granted to Lessor
against the others. Lessees are jointly and severally responsible and liable to Lessor
under this Lease Agreement.
23. ADDITIONAL TERMS AND CONDITIONS. Transfer of ownership of each item of Equipment
will occur at the end of the Lease Term for such Equipment (or earlier buyout in accordance
herewith) and when all applicable Lease Payments and other Lessee obligations have been
satisfied.
The person signing below entities that (i) he/she is a corporate officer of Lessee and is
authorized to sign this Capital Lease Agreement and bind Lessee and (ii) Lessee agrees to all terms
contained herein.
| Lessee | Lessor: | |||||||
| TLC VISION CORPORATION | INTRALASE CORP. | |||||||
By:
|
/s/ Xxxxx X. Xxxxxx | By: | /s/ Xxxxxxx X. Post | |||||
| Xxxxx X. Xxxxxx, General Counsel and Secretary | Xxxxxxx X. Post, Vice President | |||||||
Date:
|
December 26, 2007 | Date: | December 26, 2007 | |||||
EXHIBIT A
WARRANTY
WARRANTY
*
EXHIBIT B
LEASE PAYMENT TERMS
LEASE PAYMENT TERMS
*
If installation and acceptance of the Leased Laser occurs during the first to the fifteenth
(inclusive) day of a calendar month, the initial payment will be due, in advance, on the fifteenth
day of that month. If installation and acceptance of the Leased Laser occurs during the sixteen to
the thirtieth day (inclusive) of a calendar month, the initial payment will be due, in advance, on
the thirtieth day of that month. The remaining payments will be due on the fifteenth or thirtieth
day (as applicable) of each successive calendar month thereafter until paid in full. Payments not
received within * days of the due date will be considered overdue. Overdue payments will bear
interest, calculated as of the due date, at the rate of * per month, or the highest rate allowed by
law, whichever is less, until paid in full. In the event any payment becomes overdue by more than
thirty days, Lessor may elect to send a written notice of default to Lessee, at the above address.
If the default is not cured within * days of written notice, all sums due on all Leased Lasers will
become immediately due and payable, without further notice or demand, and Lessor may exercise any
or all legal rights available to it to enforce the obligation. After acceleration of the
obligation, interest will accrue on all outstanding balances at the rate of *% per month, or the
highest rate allowed by law, whichever is less, until paid in full, and Lessor will be entitled to
recover its costs of collection, including reasonable attorneys’ fees.
