EQUIPMENT LEASE
EQUIPMENT LEASE dated May 30, 1996 by and between UNIVEC, INC., a New York
corporation ("Lessor"), having its principal place of business at 000 Xxxxxxxx
Xxxxxx, Xxxxxx Xxxx, Xxx Xxxx 00000 and SHERWOOD MEDICAL COMPANY, doing business
as Xxxxxxxx-Xxxxx & Xxxx, a Delaware corporation ("Lessee"), having its
principal place of business at 0000 Xxxxx Xxxxxx, Xx. Xxxxx, Xxxxxxxx 00000.
WITNESSETH:
WHEREAS, Lessee has made or caused to be made a 128 cavity mold and mold
inserts for the manufacture of Lessor's proprietary design of single-use syringe
plungers ("Plungers") and spare parts for such mold (collectively, the "Plunger
Mold");
WHEREAS, concurrently herewith Lessee is selling, transferring and
conveying all right, title and interest in and to the Plunger Mold to Lessor;
WHEREAS, Lessee desires to lease back from Lessor the Plunger Mold for use
in the manufacture and production of Plungers for use in the assembly of
single-use hypodermic syringes (collectively, the "Products") using Lessor's
proprietary design specifications previously provided to Lessee and as the same
may hereafter from time to time be agreed upon by the parties;
WHEREAS, Lessor desires to lease the Plunger Mold to Lessee for use in the
manufacture and production of the Plungers;
NOW, THEREFORE, in consideration of the mutual covenants and promises
herein set forth, the parties hereby agree as follows:
1. Agreement to Lease.
(a) This Agreement sets forth the terms and conditions upon which
Lessor shall lease to Lessee and Lessee shall lease from Lessor the Plunger
Mold. Lessee hereby confirms, represents, warrants and agrees that the
Plunger Mold is being leased (and will be used solely) for commercial or
business purposes (and not for consumer, personal, family or household
purposes).
(b) Lessee acknowledges that Lessor is not responsible for any
repairs, maintenance, service, latent or other defects in the Plunger Mold
or in the operation thereof, or for compliance of the Plunger Mold with
requirements of any laws, ordinances, governmental rules or regulations
(including, but not limited to, laws with respect to environmental
matters), or
for infringement of any patent, trademark, copyright or trade secret, or
for any direct, indirect, special, incidental, consequential or contingent
damages, including without limitation any lost profits, arising out of the
use of or inability to use the Plunger Mold, whether for Lessor or Lessee.
(c) Lessee acknowledges that it has undertaken to design and
manufacture the Plunger Mold to produce Plungers suitable for use in the
manufacture and assembly of the Products. Lessee has inspected the Plunger
Mold and Plungers produced by the Plunger Mold and hereby accepts the
Plunger Mold and acknowledges that it is capable of producing commercial
quantities of Plungers in compliance with the specifications now and
hereafter from time to time agreed upon by the parties.
2. Rent and Lease Term. Lessee shall pay Lessor rent (the "Rent") for the
Plunger Mold in 36 equal consecutive monthly (the "Rent Term") installments of
$54,056 payable on or before the first day of each month commencing on the first
day of the month immediately following the date this Lease is executed.
Notwithstanding the full payment of the Rent during the Rent Term, the term of
this Lease shall be the six year period commencing on the date hereof (the
"Lease Term"). The Lease Term may not be terminated by Lessee for any reason.
3. Payment Obligation: Net Lease. All Rent and other payments under this
Lease shall be made to Lessor at its address shown above, or at such other
address as Lessor may designate, in immediately available funds in such coin or
currency of the United States of America which at the time of payment shall be
legal tender for the payment of public and private debts. THIS LEASE IS A "NET
LEASE" AND LESSEE'S OBLIGATION TO PAY ALL RENT AND OTHER SUMS HEREUNDER SHALL BE
ABSOLUTE AND UNCONDITIONAL, AND SHALL NOT BE SUBJECT TO ANY ABATEMENT,
REDUCTION, DEDUCTION, DIMINUTION, SETOFF, DEFENSE, COUNTERCLAIM, INTERRUPTION,
DEFERMENT OR RECOUPMENT, FOR ANY REASON WHATSOEVER. This Lease shall not
terminate, nor shall Lessee's obligations hereunder be affected, by reason of
any defect in, damage to or loss of the Plunger Mold from any cause whatsoever,
the prohibition of or interference with Lessee's use thereof by any person,
corporation or governmental authority, the validity or unenforceability or lack
of due authorization of this Lease, or for any other cause whether similar or
dissimilar to the foregoing, it being the express intention of Lessor and Lessee
that all Rent and other amounts payable by Lessee under this Lease shall be, and
continue to be, payable in all events.
4. Statement of Lease. This Lease is a lease of personal property. Lessee
agrees to take all action necessary or reasonably requested by Lessor to ensure
that the Plunger Mold shall be and remain personal property, and nothing in this
Lease shall be construed as conveying to Lessee any interest in the Plunger Mold
other than its interest as a Lessee hereunder. Lessee shall, at its expense:
protect and defend the interests of Lessor in the Plunger Mold against all third
party claims other than claims arising out of Lessor's actions or omissions
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or arising out of Lessor's negligence or wilful misconduct; keep the Plunger
Mold free and clear of any mortgage, security interest, pledge, lien, charge,
claim or other encumbrance (each, a "Lien", and collectively, "Liens"), except
any Liens created by or through Lessor or acts or omissions of Lessor
(collectively, "Lessor's Liens"); give Lessor immediate notice of the existence
of any such Lien; and indemnify and defend Lessor against any claim, liability,
loss, damage or expense arising in connection with any of the foregoing, other
than Lessor's Liens. Lessee, at its expense, shall promptly pay, satisfy and
duly and promptly discharge, any Lien (other than Lessor's Liens).
5. Permitted Use.
(a) The Plunger Mold shall be used and operated by Lessee only in the
ordinary conduct of its business by qualified employees of Lessee and in
accordance with all applicable manufacturer and vendor instructions, as
well as with all applicable legal and regulatory requirements. Except as
expressly provided in Section 5(b) hereof, Lessee shall use the Plunger
Mold exclusively for the manufacture and assembly of the Plungers for or at
the request of Lessor. Lessee shall procure and maintain in effect all
licenses, certificates, permits, approvals and consents required by
federal, state or local laws and regulations in connection with the
delivery, installation, use and operation of the Plunger Mold. During the
Lease Term, the Plunger Mold shall be installed at Lessee's manufacturing
facility located in Norfolk, Nebraska. Lessee shall not change the location
of the Plunger Mold without obtaining Lessor's prior written consent, which
shall not be unreasonably withheld. In no event shall the Plunger Mold be
located in a facility that is either (i) outside the United States of
America or (ii) not approved by the United States Food and Drug
Administration.
(b) Subject to the conditions set forth herein, Lessor agrees to
permit Lessee to use the Plunger Mold as a back-up mold for its own syringe
production. Lessee shall not use the Plunger Mold for its own syringe
production if there is an unfilled order for Plungers from Lessor
outstanding. If Lessee receives an order for Plungers from Lessor while the
Plunger Mold is being used by Lessee for its own syringe production, Lessee
covenants and agrees that it will cause the Plunger Mold to be converted
over for production of Plungers for Lessor within not more than ten (10)
days after receipt of Lessor's order.
6. Maintenance and Alterations.
(a) Lessee shall, at its expense, repair and maintain the Plunger Mold
so that it will remain in the same condition as when delivered to Lessee,
or as modified to improve the quantity or quality of Plungers produced by
the Plunger Mold, ordinary wear and tear from proper use excepted,
including, without limitation, repairing and restoring the Plunger Mold to
good operating condition if it becomes damaged. Lessee shall maintain the
Plunger Mold in accordance with all good manufacturing practices and shall
maintain an adequate supply of spare parts. Such repair and maintenance
shall be performed in compliance with all requirements necessary to enforce
all warranty rights and in accordance with all applicable legal
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and regulatory requirements. If Lessee fails to maintain the Plunger Mold
in accordance with the terms hereof, Lessee shall enter into and keep in
effect during the Lease Term any maintenance agreements with respect to the
Plunger Mold as reasonably may be requested by Lessor. Lessee's obligation
to repair, maintain and preserve the Plunger Mold shall not constitute
authority to incur mechanic's or supplier's liens. Lessee shall, at its
expense, make such alterations (collectively, "Required Alterations") to
the Plunger Mold during the Lease Term as may be required by applicable
legal and regulatory requirements. In addition, Lessee may at its expense,
without Lessor's consent, so long as no Event of Default, or event which
with the passage of time or giving of notice, or both, would constitute an
Event of Default (each, an "Incipient Default"), has occurred and is
continuing, make alterations (collectively, "Permitted Alterations") to the
Plunger Mold which do not impair the commercial value or function or use of
the Plunger Mold for the manufacture and production of Plungers and which
are readily removable without causing material damage to the Plunger Mold.
Any Permitted Alterations not removed by Lessee prior to the return of the
Plunger Mold to Lessor, and all Required Alterations, shall immediately
without further action become the property of Lessor and part of the
Plunger Mold for all purposes of this Lease.
(b) In furtherance of the provisions of Section 5(b) hereof and solely
in accordance with the limitations set forth therein, Lessee may make such
temporary and readily reversible alterations (the "Change-Over
Alterations") to the Plunger Mold as may be necessary to permit the Plunger
Mold to be used as a back-up mold for Lessee's own syringe production.
Change-Over Alterations must be removed within ten (10) days of receipt of
an order for Plungers from Lessor and prior to the return of the Plunger
Mold in accordance with Section 7 hereof.
(c) Other than as provided in this Section 6, Lessee may make no
alterations to the Plunger Mold. Any prohibited alterations to the Plunger
Mold shall, at Lessor's election, immediately become the property of Lessor
without further action and without Lessor thereby waiving any Event of
Default or remedies with respect thereto.
7. Return. Within fifteen (15) days after the expiration of the Lease Term
or earlier termination of this Lease, Lessee shall, at its expense, return the
Plunger Mold to Lessor at such location in the continental United States as may
be specified by Lessor, and in the condition required by Section 6 hereof.
Unless otherwise directed in writing by Lessor, the Plunger Mold shall be
returned to Lessor with inserts installed and assembled in the mold base for the
manufacture and production of Plungers.
8. Identification. Lessee shall, at its expense, place and maintain
permanent markings on the Plunger Mold evidencing Lessor's ownership, security
and other interests therein, as specified from time to time by Lessor. Lessee
shall not place or permit to be placed any other markings on the Plunger Mold
which might indicate any ownership or security interest in the Plunger Mold. Any
markings on the Plunger Mold not made at Lessor's request shall be
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removed by Lessee, at its expense, prior to the return of the Plunger Mold, in
accordance with Section 7 hereof.
9. Inspection. Upon reasonable prior notice, Lessee shall make the Plunger
Mold and all related records available to Lessor or its agents for inspection
during regular business hours at the location of the Plunger Mold.
10. No Lessee Sublease or Assignment. Without the prior written consent of
Lessor, which may be withheld for any or no reason whatsoever, Lessee shall not
sublease or otherwise relinquish possession or control of, or assign, pledge,
hypothecate or otherwise transfer, dispose of or encumber the Plunger Mold, this
Lease, or any part thereof or interest therein, or any right or obligation with
respect thereto.
11. Lessor Assignment. Lessor may from time to time without notice to
Lessee sell, mortgage, pledge, grant a security interest in, assign or otherwise
transfer (each, a "Transfer"), in whole or in part, this Lease, the Plunger
Mold, or any of its interests, rights or obligations with respect hereto or
thereto, including, without limitation, all Rent and other sums due or to become
due under this Lease, to one or more persons or entities (each an "Assignee").
Each Assignee shall have, to the extent provided in any document effecting such
Transfer, Lessor's rights, powers, privileges and remedies with respect thereto
but shall not be obligated to Lessee, except to the extent expressly provided in
any document, instrument or agreement executed by such Assignee in connection
with a Transfer (each, a "Transfer Document"), to observe or perform any duty,
covenant or condition required to be observed or performed by Lessor. Except to
the extent expressly assumed by an Assignee in any Transfer Document, no
Transfer shall relieve Lessor from any of its obligations to Lessee. Lessee
shall, upon receipt of notice of a Transfer from Lessor, be bound by such
Transfer. The rights of any such Assignee in and to any sums payable to Lessor
under provisions of this Lease shall not be subject to any abatement whatsoever
and shall not be subject to any claim, defense, counterclaim, setoff or
recoupment whatsoever that Lessee may at any time have against Lessor. Lessee
agrees that any such transfer or assignment will not impair the prospect of
obtaining return performance by, materially change the duty of, or materially
increase the burden or risk imposed on, Lessee under this Lease, and Lessee
waives any rights or remedies it may otherwise have, under Article 2A of the
Uniform Commercial Code (the "UCC") in effect in the State of New York or in any
other jurisdiction, or otherwise, to oppose, prohibit, claim damages with
respect to or otherwise affect any such transfer or assignment. Any Assignee
shall be considered a third party beneficiary of all of Lessee's
representations, warranties and obligations hereunder to Lessor. Lessee agrees
(a) in connection with any such transfer or assignment, to provide such
instruments, documents, acknowledgments and further assurances as Lessor or any
Assignee may deem necessary or advisable to effectuate the intents of this Lease
or any such Transfer, with respect to such matters as this Lease, the Plunger
Mold, Lessee's obligations to such Assignee and such other matters as may be
reasonably requested, and (b) that after receipt by it of written notice of any
Transfer from Lessor or from Lessor's Assignee, all Rent and other amounts which
are then and thereafter due under this Lease shall be paid unconditionally to
such Assignee at the place of
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payment designated in such notice. Notwithstanding the foregoing, Lessee shall
not be required to provide to Lessor or any Assignee any financial statements
that Lessee does not make available to its other creditors.
12. Risk of Loss. Lessee shall bear all risk of loss, damage, theft,
taking, destruction, confiscation or requisition (each a "Loss") with respect to
the Plunger Mold, however caused or occasioned (except any such Loss caused or
occasioned by the acts or omissions of Lessor), which shall occur prior to the
return of the Plunger Mold in accordance with Section 7 hereof. In addition,
Lessee hereby assumes all other risks and liabilities, including, without
limitation, personal injury or death and property damage, arising with respect
to the Plunger Mold (unless arising directly as a result of Lessor's negligence
or willful misconduct), including, without limitation, those risks and
liabilities arising with respect to the manufacture, purchase, ownership,
shipment, transportation, delivery, installation, leasing, possession, use,
storage and return of the Plunger Mold, howsoever arising, in connection with
any event occurring prior to such Plunger Mold's return in accordance with
Section 7.
13. Casualty. If the Plunger Mold shall become lost, stolen, destroyed or
irreparably damaged from any cause whatsoever, or shall be taken, confiscated or
requisitioned, unless, in each case, same is caused by Lessor, (any such event
herein called an "Event of Loss"), Lessee shall promptly notify Lessor of the
occurrence of such Event of Loss, and shall pay Lessor, within 15 days after the
date of such Event of Loss (but in no event later than the Rent payment date
next following such Event of Loss), an amount equal to the then unpaid balance
of the Rent, reduced by the amount of insurance proceeds paid or payable
directly to Lessor on account of such loss. Upon Lessor's receipt of such
payment for the entire unpaid balance of the Rent, the Lease shall automatically
terminate as to such Plunger Mold. Upon such termination after an Event of Loss,
Lessor shall instruct Lessee with respect to the disposition of any damaged or
destroyed Plunger Mold. In the alternative, upon receipt of the entire unpaid
balance of the Rent, Lessor may by written notice to Lessee transfer, convey and
assign all of its right, title and interest in such Plunger Mold to Lessee, on
an as-is, where-is basis, without recourse or warranty.
14. Insurance.
(a) Lessee shall keep the Plunger Mold insured (or shall self insure the
Plunger Mold) against all risks of loss or damage from every cause whatsoever
occurring during the Lease Term for an amount not less than the higher of the
full replacement cost of the Plunger Mold or the entire aggregate unpaid Rent.
Lessee shall also carry public liability insurance, both personal injury and
property damage, covering the Plunger Mold, and Lessee shall be liable for any
deductible portions of all such insurance.
(b) All insurance required under this Section 14 shall name Lessor as
additional insured and loss payee. Such insurance shall be maintained with such
insurers and shall be in such forms as are reasonably satisfactory to Lessor or,
if Lessee elects to self insure
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the Plunger Mold, the terms of such self insurance shall be disclosed in writing
and be reasonably acceptable to Lessor. All applicable policies shall provide
that no act, omission or breach of warranty by Lessee shall give rise to any
defense against payment of the insurance proceeds to Lessor. Lessee shall pay
the premiums for such insurance and, at the request of Lessor, deliver to Lessor
a current certificate evidencing such insurance coverage that is reasonably
satisfactory to Lessor. In any event, Lessee shall provide Lessor with
endorsements upon the policies issued by the insurers which evidence the
existence of insurance coverage required by this Section 14 and by which the
insurers agree to give Lessor written notice at least thirty (30) days prior to
the effective date of any expiration, modification, reduction, termination or
cancellation of any such policies.
(c) The proceeds of insurance required under this Section 14 and payable as
a result of loss or damage to the Plunger Mold shall be applied as set forth in
Section 13 above. Lessee covenants and agrees promptly to make claim for,
receive payment of, execute and endorse in favor of and deliver to Lessor for
immediate and direct payment to Lessor all documents, checks or drafts received
in payment for loss or damage under any insurance policies required by this
Section 14.
(d) Notwithstanding anything herein, Lessor shall not be under any duty to
examine any evidence of insurance furnished hereunder, or to ascertain the
existence of any policy or coverage, or to advise Lessee of any failure to
comply with the provisions of this Section 14.
15. Lessee's Representations And Warranties. Lessee hereby represents and
warrants to Lessor, and agrees with Lessor, as follows:
(a) Lessee is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware; Lessee has full
power and authority and all necessary licenses and permits to carry on its
business as presently conducted, to own or hold under lease its properties
and to enter into this Lease and to perform its obligations under this
Lease; and Lessee is duly qualified to do business as a foreign corporation
and is in good standing in each jurisdiction in which the character of its
properties or the nature of its business or the performance of its
obligations under this Lease requires such qualification. Lessee is a
wholly-owned subsidiary of American Home Products Corporation, a Delaware
corporation.
(b) The execution and delivery by Lessee of this Lease and the
performance by Lessee of its obligations under this Lease have been duly
authorized by all necessary corporate action on the part of Lessee; do not
contravene any law, governmental rule or regulation or any order, writ,
injunction, decree, judgment, award, determination, direction or demand
(each, an "Order") binding on Lessee or its properties or the corporate
charter or by-laws of Lessee; and do not and will not contravene the
provisions of, or constitute a default (either with or without notice or
lapse of time, or both) under, or result in the creation of any Lien upon,
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the Plunger Mold or any property of Lessee under any indenture, mortgage,
contract or other instrument to which Lessee is a party or by which Lessee
or any of its properties is bound.
(c) No consent or approval of, giving of notice to, registration with,
or taking of any other action by, any state, federal or other governmental
commission, agency or regulatory authority or any other person or entity is
required for the consummation or performance by Lessee of the transactions
contemplated under this Lease.
(d) This Lease has been duly entered into and delivered by Lessee and
constitutes a legal, valid and binding agreement of Lessee enforceable
against Lessee in accordance with its terms, except as limited by any
bankruptcy, insolvency, reorganization or other similar laws of general
application affecting the enforcement of creditor or Lessor rights.
(e) There are no actions, suits or proceedings pending or to the
knowledge of Lessee threatened against or affecting Lessee or any property
of Lessee in any court, before any arbitrator of any kind or before or by
any federal, state, municipal or other governmental department, commission,
board, bureau, agency or instrumentality (each, a "Governmental Body"),
which, if adversely determined, would materially adversely affect the
business, assets, operations or condition, financial or otherwise, of
Lessee, or adversely affect the ability of Lessee to perform its
obligations under this Lease; and Lessee is not in default with respect to
any order of any court, arbitrator or Governmental Body.
(f) Lessee is not a party to any agreement or instrument or subject to
any charter or other corporate restriction which materially adversely
affects or, so far as Lessee can now foresee, will materially adversely
affect the business, operations or properties of Lessee or the ability of
Lessee to perform its respective obligations under this Lease.
(g) Lessee has filed all required tax returns in all jurisdictions in
which such returns were required to be filed and has paid, or made
provision for, all taxes shown to be due and payable on such returns and
all other taxes and assessments which are payable by it, except for any
taxes and assessments of which the amount, applicability or validity is
currently being contested in good faith by appropriate proceedings and
which in the aggregate do not involve material amounts.
(h) Lessee is not in default in the payment of the principal of or
interest on any indebtedness for borrowed money or in default under any
instrument or agreement under or subject to which any indebtedness for
borrowed money has been issued; no event has occurred and is continuing
under the provisions of any such instrument or agreement which with the
lapse of time or the giving of notice, or both, would constitute a default
or an event of default thereunder. Lessee is not in violation of any
provision of its corporate charter or by-laws or of any term of any
material agreement, lease of real or personal property, including, without
limitation, any term providing for the payment of rent or other instrument;
and no Event of Default has occurred and is continuing with respect to this
Lease as of the date hereof.
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(i) Lessee has not taken and will not take any action or maintain any
position inconsistent with treating this Lease as a valid leasehold
interest in the Plunger Mold.
16. Income Tax Status. This Lease has been entered into on the basis that
it shall be construed as a lease for the purposes of all federal, state and
local taxes and that Lessor shall be entitled to such credits, deductions and
other benefits as are provided to a Lessor of tangible personal property. This
is a "net lease" with all insurance, maintenance and taxes for the account of
the Lessee.
17. Taxes and Fees. Lessee hereby assumes liability for, and shall pay when
due, and on a net after-tax basis to Lessor shall indemnify and defend Lessor
against, all fees, taxes and governmental charges (including, without
limitation, interest and penalties) of any nature imposed upon Lessee with
respect to this Lease or the Plunger Mold, including, without limitation,
Lessee's manufacture, purchase, ownership, shipment, transportation, delivery,
installation, leasing, possession, use, operation, storage and return of the
Plunger Mold. Lessee shall at its expense file when due with the appropriate
authorities any and all tax and similar returns and reports required to be filed
with respect to this Lease or the Plunger Mold (with copies to Lessor).
18. Indemnification. Lessee hereby assumes liability for, and shall pay
when due, and shall indemnify, defend and hold Lessor and its assigns harmless
from and against (a) any and all liabilities, losses, damages, penalties,
claims, actions, suits, costs and expenses in any way relating to or arising out
of Lessee's performance or failure to perform under this Lease or out of
Lessee's use or possession of the Plunger Mold, including without limitation the
manufacture, ordering, purchase, ownership, shipment, transportation, delivery,
acceptance or rejection, installation, leasing, possession, use, operation,
storage, removal, return, sale or other disposition of the Plunger Mold,
including, without limitation, any of such as may arise from (whether
discoverable by Lessee or Lessor) any claims based on strict liability in tort
unless arising as a result of Lessor's negligence or willful misconduct, and (b)
all UCC and other applicable filing and recording fees and lien searches and the
like, (no matter how described in any jurisdiction) with respect to this Lease.
Lessee shall give Lessor prompt notice of any occurrence, event or condition in
connection with which Lessor may be entitled to indemnification hereunder. The
provisions of this Section 18 are in addition to, and not in limitation of, the
provisions of Section 17 hereof. Lessee's obligations under this Section 18
shall survive the expiration of or earlier termination of this Lease.
19. Warranties Excluded. LESSOR, MAKES NO REPRESENTATION OR WARRANTY,
EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER, INCLUDING WITHOUT LIMITATION
THE DESIGN OR CONDITION OF THE PLUNGER MOLD, ITS MERCHANTABILITY, DURABILITY,
CAPACITY, SUITABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, THE QUALITY OF THE
MATERIAL OR WORKMANSHIP OF THE PLUNGER MOLD, OR THE CONFORMITY OF THE PLUNGER
MOLD TO PROVISIONS OR SPECIFICATIONS
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OF ANY PURCHASE ORDER RELATING THERETO, OR PATENT INFRINGEMENT OR PATENT OR
LATENT DEFECTS, AND LESSOR HEREBY DISCLAIMS ANY AND ALL SUCH REPRESENTATIONS AND
WARRANTIES. LESSEE ACKNOWLEDGES THAT IT HAS LEASED THE PLUNGER MOLD BASED UPON
ITS OWN JUDGMENT AND EXPRESSLY DISCLAIMS ANY RELIANCE ON STATEMENTS MADE BY
LESSOR.
20. Events of Default. An "Event of Default" shall occur hereunder if: (a)
Lessee fails to make any Rent or other payment under the Lease when due and such
failure continues for a period of five (5) days after notice of non-payment; (b)
Lessee violates any other provision of this Lease or document furnished to
Lessor in connection herewith and such violation shall continue unremedied for a
period of at least twenty (20) days after notice from Lessor; (c) Lessee shall
become or be adjudicated insolvent or bankrupt or makes an assignment for the
benefit of creditors or becomes unable or admits in writing its inability to pay
its debts as they become due, or a trustee, receiver or liquidator shall be
appointed for Lessee, or for a substantial part of its property, with or without
its consent, or bankruptcy, arrangement, reorganization, composition,
readjustment, liquidation, insolvency, dissolution or similar proceedings under
any present or future statute, law or regulation shall be instituted by or
against Lessee; or Lessee shall file an answer admitting the material
allegations of a petition filed against it in any such proceeding, or any
execution or writ or process shall be issued under any proceeding whereby any of
the Plunger Mold may be taken or restrained; or Lessee shall cease doing
business as a going concern; (d) any representation or warranty made by Lessee
herein or other document furnished Lessor under or pursuant to this Lease shall
be incorrect or incomplete at the time when made in any material respect; or (e)
a material adverse change shall occur in the financial condition, business
and/or prospects of the affairs of Lessee. Lessee shall promptly notify Lessor
of the occurrence of any Event of Default.
21. Remedies. If one or more Events of Default shall have occurred, Lessor,
at its option, may (a) proceed by appropriate court action or actions, either at
law or in equity, to enforce performance by Lessee of the applicable covenants
hereunder or to recover damages for the breach thereof, including, without
limitation, net after-tax losses of federal, state and local income tax benefits
to which Lessor would otherwise be entitled as a result of owning the Plunger
Mold or leasing such Plunger Mold to Lessee; or (b) by notice to Lessee,
terminate this Lease and accelerate and demand payment of the entire unpaid
balance of the Rent (including all Rent which may then be due and payable) as
liquidated damages and not as a penalty, together with all damages, losses,
liabilities, claims and expenses including, without limitation, expenses
incurred in connection with the recovery, repair, repainting, return and
remarketing of the Plunger Mold or other exercise of Lessor's remedies hereunder
and reasonable out-of-pocket attorneys' fees which Lessor shall sustain in
connection with any Event of Default. No remedy referred to herein shall be
deemed exclusive, but all such remedies shall be cumulative and shall be in
addition to all other remedies in Lessor's favor existing under this Lease or
otherwise at law or in equity.
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22. Affirmative Covenant. At the request of Lessor, Lessee shall execute
and deliver to Lessor UCC-1 financing statements in favor of Lessor or any
Assignee in any jurisdiction where the Plunger Mold is or will be located.
23. Late Charges. Any nonpayment of Rent or other amounts payable under the
Lease shall result in Lessee's obligation to promptly pay Lessor as additional
Rent on such overdue payment, for the period of time during which it is overdue
(without regard to any grace period), interest at a rate equal to the lesser of
(a) the prime lending rate as announced from time to time by Chase Manhattan
Bank plus 5%, or (b) the maximum rate of interest permitted by law.
24. Lessor's Right to Perform for Lessee. If Lessee fails to duly and
promptly pay, perform or comply with any of its obligations, covenants or
agreements under this Lease, Lessor may itself pay, perform or comply with any
of such obligations, covenants or agreements for the account of Lessee without
thereby waiving any Event of Default. In such event, any amount paid or expense
incurred by Lessor in connection therewith shall immediately on demand, together
with interest at the rate provided in Section 23 hereof, be paid to Lessor as
additional Rent, and Lessee shall indemnify and defend Lessor against any
damage, loss, claim, liability or expense suffered or incurred by Lessor in
connection therewith.
25. Notices.
(a) Any notice, request, consent, demand or other communication given or
required to be given under this Lease shall be effective only if in writing and
shall be sent by one of the following means to the addressee at the address set
forth in Sections 25(b) below (or at such other address as shall be designated
in accordance with this Section 25, and shall be deemed conclusively to have
been given: (i) on the first business day following the day timely deposited
with an international or national overnight courier, with the cost of delivery
prepaid, assuming proof of delivery; (ii) on the third business day following
the day duly sent by certified or registered mail, postage prepaid and return
receipt requested; (iii) on the first business day after it is otherwise
actually delivered to the addressee by courier; or (iv) on the first business
day after the day it is duly sent by both confirmed facsimile transmission and
one of the forms provided in (i), (ii) or (iii) above, with the cost of
transmission prepaid.
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(b) The addresses and facsimile telephone numbers of the parties and those
persons receiving copies are as follows:
To Lessor: Univec, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxxxxx
Facsimile No.: 000-000-0000
Telephone No.: 000-000-0000
Copy to: Sazer, Xxxxxxx & Xxxxxx LLP
000 Xxxxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxx, Esq.
Facsimile No.: 000-000-0000
Telephone No.: 000-000-0000
To Lessee: Sherwood Medical Company
0000 Xxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000-0000
Attention: Vice President-- OEM Sales
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
Copy to: Sherwood Medical Company
0000 Xxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Counsel
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
26. Miscellaneous.
(a) Lessee shall, upon Lessor's demand, promptly execute, acknowledge and
deliver any and all further documents, instruments and agreements as may be
reasonably required by Lessor and any Assignee and take any and all other action
requested by Lessor from time to time, for the purpose of fully effectuating the
intent and purposes of this Lease, and to protect the interests of Lessor, its
successors and assigns. Lessee also authorized Lessor to act on its behalf as
its attorney-in-fact to file financing statements with respect to this Lease and
the Plunger Mold by signing Lessee's name thereto.
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(b) Any provision of this Lease which is prohibited or not fully
enforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
only to the extent of such prohibition or unenforceability without otherwise
invalidating or diminishing Lessor's rights thereunder or under the remaining
provisions thereof in such jurisdiction, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
(c) No term or provision of this Lease may be amended, altered, waived,
discharged or terminated except by an instrument in writing signed by a duly
authorized officer of the party against which the enforcement of the amendment,
alteration, waiver, discharge or termination is sought. No delay by either party
in exercising any right, power or remedy under this Lease shall constitute a
waiver, and any waiver by a party on any one occasion or for any one purpose
shall not be construed as a waiver on any future occasion or for any other
purpose.
(d) This Lease shall be governed in all respects by, and construed in
accordance with, the laws (without giving effect to the principles governing
conflicts of laws) of the State of New York. The federal and state courts
located in New York County, New York, U.S.A., shall have exclusive jurisdiction
and venue over any and all actions and proceedings relating to or arising out of
this Lease and/or the Plunger Mold. Lessor and Lessee each hereby irrevocably
consent to the exclusive jurisdiction of such courts and waive any right they
may have to transfer or change the venue of any such action or proceeding.
Lessor and Lessee each agree that any summons or notice relating to any such
action or proceeding may be served on such party in the manner provided for the
giving of notices under Section 25 hereof.
(e) All of the covenants and agreements of Lessee and Lessor contained in
this Lease shall survive the expiration or earlier termination hereof. Subject
to all of the terms and provisions of this Lease, all of the covenants,
conditions and obligations contained in this Lease shall be binding upon and
inure to the benefit of the respective successors and permitted assigns of
Lessor and Lessee. This Lease shall constitute the entire agreement of Lessor
and Lessee with respect to the lease of the Plunger Mold, and shall
automatically cancel and supersede any and all prior oral or written
understandings with respect thereto.
(f) This Lease may be executed in any number of counterparts, each of
which, when so executed and delivered, shall be an original, but all such
counterparts taken together shall constitute one and the same instrument. The
headings in this Lease shall be for convenience of reference only and shall form
no part of this Lease.
27. Lessee's Waivers: Limitation on Actions. To the fullest extent
permitted by applicable law, with respect to this Lease Lessee irrevocably
waives any and all: (a) rights it may otherwise have under Sections 2A-401 and
2A-402 of UCC 2A to suspend performance of any of its obligations under this
Lease, (b) rights and/or remedies it may otherwise have under Sections 2A-508
through 2A-522 of UCC 2A to: (i) cancel or repudiate this Lease, (ii) reject or
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revoke acceptance of the Plunger Mold, (iii) recover damages from Lessor for
breach of warranty or for any other reason, (iv) deduct from the rental payments
all or any part of any claimed damages resulting from any default by Lessor
under this Lease, (v) "cover" by making a purchase or lease of other property in
substitution for property due from Lessor, (vi) recover from Lessor any general,
special, incidental or consequential damages, for any reason whatsoever, and
(vii) specific performance, replevin or the like for all or any part of the
Plunger Mold; and (c) rights now or hereafter conferred by any applicable
statute or otherwise under which Lessor may be required to sell, re-lease or
otherwise use or dispose of all or any part of the Plunger Mold in mitigation of
Lessor's damages as determined under this Lease or otherwise or which may
otherwise limit or modify any of Lessor's rights and remedies under this Lease
or otherwise.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their authorized representatives as of the date first above
written.
UNIVEC, INC., Lessor
By: /s/ Xxxx Xxxxxxxxxx
-------------------------------------
Name:
Title: CEO
SHERWOOD MEDICAL COMPANY
Doing business as Xxxxxxxx-Xxxxx & Xxxx,
Lessee
By:
-------------------------------------
Name:
Title:
Address:
Phone:
