AMENDMENT NO. 1 TO
MASTER EQUIPMENT LEASE AGREEMENT
AMENDMENT NO. 1 dated as of April 15, 1999 TO MASTER EQUIPMENT LEASE AGREEMENT
(this "Amendment") dated as of June 11, 1997, by and between FINOVA CAPITAL
CORPORATION, ASSIGNEE OF FINOVA TECHNOLOGY FINANCE, INC. ("Lessor") and
ORTHOVITA, INC. ("Lessee"):
WHEREAS, Lessor and Lessee entered into a Master Equipment Lease Agreement
dated as of June 11, 1997 (the "Master Lease") and into certain Rental Schedules
No. 1 through 11 thereunder; and
WHEREAS, Lessor and Lessee intend to enter into Rental Schedule No. 12, and
wish to amend the Master Lease with respect to Rental Schedule No. 12 and any
following Rental Schedules;
In consideration of the foregoing premises and the mutual covenants
hereinafter contained, the parties hereto agree as follows with Respect to
Rental Schedule No. 12 and any following Rental Schedules to amend the following
sections BELOW:
1. Primary Term. Delete section 4 and substitute the following:
Primary Term. The Primary Term for each item of Equipment shall commence
on the Lease Commencement Date provided for by the Rental Schedule for such
Equipment, and unless sooner terminated pursuant to the provisions of this
Lease, shall be for the number of months set forth in such Rental Schedule,
plus the number of days remaining in any partial month, if the Lease
Commencement Date occurs on any day other than the thirtieth or thirty-
first day of a month (twenty-eighth day in the case of February). If the
Lease Commencement Date occurs on the thirty-first day of a month, the
Primary Term shall be for the number of months set forth in such Rental
Schedule, plus the number of days from the Lease Commencement Date through
the twenty-ninth day of the next following month. If the Lease
Commencement Date occurs on the thirtieth day of a month, The Primary Term
shall be for the number of months set forth in such Rental Schedule.
Notwithstanding the foregoing, the provisions of this Master Lease on
indemnification of Lessor by Lessee shall apply between Lessor and Lessee
with respect to any Equipment from the time that any order for the
Equipment is placed by Lessor.
2. Other Covenants: Section 17 (a) (i) is amended to read: Quarterly interim
financial statements within 45 days of the close of each of the first three
fiscal quarters of every year certified by the Lessee's Chief Financial
Officer and accompanied by a certificate executed by Lessee's Chief
Financial Officer to the effect that since the date of the last certificate
delivered to Lessor there has been no default under the Master Lease or, if
the same cannot be so certified, the reasons surrounding the same.
3. Option to Renew. Delete section 21 in its entirety.
4. Purchase Option. Delete section 25(a) through (c) and substitute the
following:
25. Purchase Obligation. Lessee shall be obligated to purchase all items
of the Equipment then subject to a Rental Schedule at the expiration of the
Primary Term for such items of the Equipment for a purchase price, payable
in immediately available funds, equal to the Fair Market Value of such items
which Fair Market Value shall equal fifteen percent (15%) of the original
Acquisition Cost of the Equipment, plus any applicable sales, excise or
other taxes imposed as a result of such sale (other than net income taxes
attributable to such sale). Lessor's sale of any item of the Equipment shall
be on as "as-is", "where-is" basis, without any representation or warranty
by or recourse to Lessor, as provided by the provisions of this Master Lease
on disclaimer of warranties, and shall be subject to such additional terms
and conditions as may be specified in the Rental Schedule.
5. Definitions. Delete paragraph 5 which references the "Fair Market Value"
definition.
6. Definitions. Delete all references to "any and all Renewal Terms" in
paragraph 9 "Lease Term" and paragraph 14 "Stipulated Loss Value."
7. Governing Law. This Amendment shall be governed by and construed in
accordance with the laws of the State of Connecticut (other than the
conflicts of laws provisions).
8. Counterparts. This Amendment may be executed in one or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
9. Ratification. Except as specifically set forth in or modified by this
Amendment, all of the terms, conditions and provisions of the Documents
shall remain in full force and effect and are hereby ratified and confirmed.
IN WITNESS WHEREOF, the parties hereto have executed or caused to be executed by
their duly authorized representatives this Amendment as of the date first above
written.
LESSOR: LESSEE:
FINOVA CAPITAL CORPORATION ORTHOVITA, INC.
By: /s/ Xxxxxxx Xxxxxxxx By: /s/ Xxxxxx X. Xxxxx
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Title: Contract Administrator Title: Chief Financial Officer
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ATTEST:
By: /s/ Xxxx X. Xxxxx
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Title: Controller
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