EXHIBIT 10.68
EQUIPMENT LEASE
This lease, effective as of the last date stated below, is by and
between CRYOPOLYMERS LEASING, INC., of 000 Xxxxx Xxxxxx, Xxxx xx Xxxx Xxxxxxx,
Xxxxxx of Calcasieu, State of Louisiana, referred to as "Lessor", and XXXXXXXX
TECHNOLOGIES, INC., of 0 Xxxxxxx Xxxx, Xxxxxxxx X, Xxxx xx Xxxxxxxxx, Xxxxx of
Massachusetts, referred to as "Lessee."
SECTION ONE
PROPERTY LEASED
Lessor leases to Lessee, and Lessee leases from Lessor, the movable
property described in Exhibit "A", attached to and made a part of this agreement
(the "property").
SECTION TWO
TERM OF LEASE
The term of this lease shall be for a fifteen (15) year period
commencing on August 1, 1997, and ending on July 31, 2112.
SECTION THREE
RENT
Lessee agrees to pay Lessor, as rent for the property, both base rent
and bonus rent. Rent for the term of the lease shall be monthly payments of
$25,500.00 payable in advance on or before the first day of each month until the
termination of the lease.
In addition to the base rent, a bonus rent shall be paid on the last
day of each successive year for a six (6) year period beginning on December 31,
1997 and ending December 31, 2002. The bonus rent shall be that amount of common
stock of Lessee, the value of which is equal to the sum of $100,000.00. The
closing bid price as reported by the "NASDAQ" market on the last
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reporting day immediately prior to the date the bonus payment is due will be
used to determine the value of the common stock payable as bonus rental.
Right of First Refusal and Stock Transfer Restrictions. Lessor
understands that any stock transferred by virtue of this Agreement, the Act of
Sale, or by the Non-Qualified Stock Option Agreement executed by and between
them may result in Lessor holding at any given time, a significant number of
shares in XxxxxXxx Technology Stock (the "Stock"). Any sale of a large block of
the stock (in excess of ____ shares) or any series of trades constituting a
large block, could result in a material disruption in the share price or in the
trading of XxxxxXxx Technology Stock in the hands of other shareholders. Lessor
agrees that in the event of its intent to sell any shares of the stock, it shall
first offer these shares to XxxxxXxx Technologies. The price of the block shall
be that price which a bona fide third party purchaser is, or will be willing to
pay for the block of shares Lessor wishes to sell. If XxxxxXxx elects not to
purchase the block of shares within fifteen (15) days, Optionee may then sell
the block to the third party bona fide purchaser on the same terms and
conditions offered by Lessor to XxxxxXxx.
Rent unpaid when due shall bear interest at the rate of eighteen
percent (18%) per year.
SECTION FOUR
LOCATION OF PROPERTY
The property leased under this agreement shall be kept at 0000
Xxxxxxxxxxx Xxxx, Xxxx xx Xx. Xxxxxxxxxxxx, Xxxxxx of Xxxx Xxxxxxxxx, State of
Louisiana. It shall not be removed from that location without the prior written
consent of Lessor, which consent shall not be withheld unreasonably.
SECTION FIVE
OWNERSHIP OF PROPERTY
Lessor warrants that the property leased under this agreement is
Lessor's sole and exclusive property. Lessee shall have no right or interest in
such property except as expressly set forth in this agreement. A detailed
schedule of the property leased is attached hereto as Exhibit "A".
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SECTION SIX
IDENTIFICATION MARKS ON PROPERTY
The property leased under this agreement may be identified or marked by
Lessor with appropriate labels, plates, or other markings stating that the
property is owned by Lessor and identifying the property with specific numbers.
Lessee, without Lessor's prior consent, shall not remove any such identifying
markings.
SECTION SEVEN
LESSOR'S RIGHT TO INSPECT
Lessor shall have the right at any time during normal business hours to
enter on the premises where the leased property is located for the purpose of
inspecting it or observing its use, maintenance, and operation, provided Lessor
provides 24 hour notice of intent to inspect to Lessee.
SECTION EIGHT
LESSEE'S INSPECTION AND ACCEPTANCE
Lessee acknowledges that it has inspected every item of property
delivered pursuant to this lease, that they are in good condition or a condition
otherwise acceptable to Lessee, and that Lessee has accepted such property in
its present condition. It is agreed that the property is being leased on an "as
is, where is" basis, with no warranty whatsoever except as to title.
SECTION NINE
RETURN OF PROPERTY
On the expiration or termination of this lease, Lessee agrees to return
to Lessor at Lessee's own expense the property leased, in as good a condition as
it was when delivered to Lessee, ordinary wear and tear resulting from proper
use excepted, to Xxxxxxxxxx Xxxx, Xxxx xx Xx. Xxxxxxxxxxxx, Xxxxxx of Xxxx
Xxxxxxxxx, State of Louisiana. Should Lessee for any reason be unable to so
return the leased property or any portion thereof to Lessor, Lessee shall pay
Lessor as liquidated damages an amount equal to the option price of the property
shown on the attached Schedule "C", subject to any reduction in the option price
by virtue of Section 23 infra.
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SECTION TEN
WARRANTIES
Lessor does not make any warranties, express or implied, nor shall any
warranties arise by operation of law, as to the property leased, including
fitness for any particular use, merchantability, design, capacity, or
performance.
Warranties made by the seller or manufacturer of the leased property
are assigned by Lessor to Lessee for the term of this lease. In the event of any
claim concerning the location, installation, repair or use of the property
leased or any other claim concerning the property, regardless of cause of
consequence, Lessee's only remedy, if any, shall be against the seller or
manufacturer of the property. No defect, regardless of the cause or consequence,
shall relieve Lessee from performing its obligation under this agreement,
including the payment of rentals.
SECTION ELEVEN
STATUS OF PROPERTY AS PERSONALTY
The property leased under this agreement is, and will at all times
remain, movable property, notwithstanding that such property or any part may now
be, or may become, attached to, or permanently rest on, immovable property.
Lessee agrees to obtain and keep in full force and effect for benefit of Lessor,
a waiver of landlord's lien from the owner(s) of any immovable property upon
which the property lease is located.
SECTION TWELVE
USE, CARE, AND OPERATION OF PROPERTY
Lessee shall use the property in a careful and proper manner, and shall
comply with all laws and regulations prescribed by governmental authority and
with the seller's or manufacturer's instructions relating to the possession,
use, maintenance, repair and operation of the property. The cost of maintenance
and repair shall be the sole responsibility of Lessee without right of
reimbursement from Lessor. Lessee shall keep a log book showing, at a minimum,
the type of maintenance, repair, or replacement work performed, the date, the
cost, and the person ro entity performing the work. All replacement parts to any
of the property shall become a part of the property, and shall likewise be the
property of Lessor.
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Lessee shall provide for the registration and licensing of any property
leased, whenever required. Lessee shall permit the property to be used only by
competent and qualified personnel.
SECTION THIRTEEN
LOSS OR DAMAGE
1. Lessee assumes all risks of loss of or damage to the leased property
from any cause. No loss of or damage to the property shall impair any obligation
of Lessee under this Lease, including the payment of rentals, and all such
obligations shall continue in full force and effect until otherwise discharged.
2. In the event of loss or damage to the leased property, the following
shall apply:
(a) If, in Lessor's judgment, the property is properly and permanently
lost or damaged beyond repair so as to be unusable for the purpose for which the
property is intended, and if Lessor is indemnified to the extent of the agreed
insurable value specified in the attached Schedule "B" for that particular item
of property, the lease shall terminate with respect to such property. If the
property is not insured, or the insurance is not collectible, or the property is
lost or destroyed by a peril not insured against, then, at the option of Lessor,
Lessee shall either replace the property with like property in good condition,
which property shall become the property of Lessor and subject to this lease, or
pay Lessor the agreed on insurance valuation of the property as specified in the
attached Schedule "B", and on payment, Lessee shall become the owner of such
property, and the lease with respect to such property shall be terminated.
(b) In the event the loss or damage to any of the leased property is
capable of being replaced or repaired, and if Lessor shall be indemnified in an
amount less than the agreed on insurance valuation specified in the attached
schedule, Lessor shall have the option of repairing or replacing the property at
Lessee's cost, and the proceeds of any insurance recovered, including the
portion applicable to Lessor's interest, shall be applied in paying for the
costs of repair or replacement. If no insurance is maintained by Lessee, or if
such insurance is uncollectible, or if the damage or loss is caused by a peril
not insured against, Lessee shall be responsible for the costs of repair or
replacement. This lease shall continue uninterrupted after such loss or
destruction until the lease is otherwise terminated.
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3. Lessee shall notify Lessor in writing within fifteen (15) days of
the occurrence of any loss or damage to the leased property, and shall cooperate
fully with Lessor and the insurance company in the investigation and processing
of all claims, and in the recovery of damages from third persons who are or
might be liable.
SECTION FOURTEEN
PERSONAL INJURIES OR DEATH
Liability and responsibility for all claims and damages of any nature,
including personal injuries or death of any person, in connection with the
condition, use, operation, or transportation of the leased property shall be
born by Lessee, and Lessee shall indemnify, defend and hold harmless Lessor
against all such liability, to the fullest extent allowed by law.
SECTION FIFTEEN
INSURANCE
Lessee shall obtain and maintain at all times during the term of this
lease, at Lessee's sole expense, the following insurance coverages:
1. Fire, flood, vandalism, malicious mischief, burglary, and theft
insurance in an amount not less than the agreed on insurance valuation as
specified in the attached Schedule "B".
2. Bodily injury insurance of not less than $1,000,000.00 Dollars per
person and $3,000,000.00 Dollars per accident.
3. Third party property damage insurance in an amount of not less than
$1,000,000.00.
Lessee shall cause Lessor to be named as an additional insured, to the
extent of Lessor's interest in the property. Such insurance shall be endorsed to
constitute primary insurance with respect to any other insurance that Lessor may
have covering such property.
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In the event Lessee fails to pay the premiums of the insurance policies
when due, Lessor may, but is under no obligation to, pay the premiums. Lessee
shall within five (5) days from notice the Lessor has paid the premiums,
reimburse Lessor for such payment. If Lessee fails to reimburse Lessor for such
premiums with the period provided, the amount of unreimbursed premiums shall
bear interest at eighteen percent (18%) per year.
SECTION SIXTEEN
TAXES AND FEES
Lessee shall pay all taxes, assessments, licenses, and registration
fees that may now or hereafter be imposed on the ownership, leasing, possession,
or use of the leased property. Lessee shall furnish Lessor satisfactory proof
that such payment has been made before such taxes, assessments, license and
registration fees become delinquent. If Lessee fails to pay the charges before
the delinquency date, Lessor may, but is not obligated to, pay them. Lessee
shall reimburse Lessor for any such payment within five (5) days from written
notice of payment from Lessor. Any such amounts that remain unreimbursed shall
bear interest at the rate of eighteen percent (18%) per year.
SECTION SEVENTEEN
INVESTMENT TAX CREDIT
Any eligible investment tax credits after the execution of this Lease,
with respect to the leased property allowed by the Internal Revenue Code, as
amended, shall belong to Lessee.
SECTION EIGHTEEN
FREEDOM FROM LIENS
Lessee shall keep the property leased from any claim, levy, lien,
privilege, encumbrance, or other legal process. Lessee shall notify Lessor of
such process in writing within ten (10) days from the receipt of notice of the
claim, levy, lien, privilege or legal process. Lessee shall pay cost of
defending or removing the claim, levy, lien, or legal process, unless the cost
is attributable solely to the acts or omissions of Lessor. Lessee may not place
the property leased on any property owned by another without the written
permission of Lessor.
SECTION NINETEEN
DEFAULT
The following events shall constitute default under this agreement:
1. The nonpayment by Lessee for a period of ten (10) days of any amount
required under this lease to be paid by Lessee.
2. The nonperformance by Lessee of any term or condition of this lease
if it is not cured within ten (10) days after written notice of nonperformance
from Lessor.
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3. The filing by or against Lessee of any petition under the bankruptcy
laws, debts moratorium laws, or any law for the relief of, or relating to,
debtors.
4. Appointment of any receiver or trustee to take possession of the
property of Lessee, unless the appointment is set aside or withdrawn or stayed
within twenty-five (25) days of the date of the appointment.
5. The subjection of Lessee's property to any levy, seizure,
attachment, lien, privilege, garnishment, assignment, or sale for or by any
creditor or governmental agency, unless the process is set aside within
twenty-five (25) days from the date of such subjection.
SECTION TWENTY
LESSOR'S RIGHT TO PREVENT DEFAULT
In the event Lessee fails to make any payment or do any act as provided
in this lease, Lessor shall have the right, but not the obligation, without
notice to or on demand on Lessee, and without releasing Lessee from any
obligation under this Lease, to pay, purchase, contest, or compromise any
encumbrance, charge, or lien that, in the sole judgment of Lessor, affects the
property leased, and in exercising such right, Lessor may incur any liability
and expend whatever amounts it may deem necessary. All such expenses incurred by
Lessor shall be reimbursed by Lessee within fifteen (15) days from written
notice of their being incurred from Lessor. The amount paid by Lessor on behalf
of Lessee shall bear interest at eighteen percent (18%) per annum from the date
Lessor made the payment.
SECTION TWENTY-ONE
LESSOR'S RIGHTS ON DEFAULT
On the occurrence of any of the events specified in Section Nineteen as
constituting default, Lessor, without notice to or demand on Lessee, may
exercise any and all legal rights including those accorded it by LSA-R.S. 9:3318
A, et seq.
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SECTION TWENTY-TWO
TERMINATION
Lessee, if not in default in any of its obligations under this
agreement, may terminate this lease with respect to any or all items or property
leased at any time after sixty (60) months from the date of delivery of such
property, by giving sixty (60) days written notice of termination to Lessor.
Lessor, at its option, within sixty (60) days after return of such property, may
sell the property at public or private sale for the highest cash offer made. If,
after deducting all costs and expenses in connection with the storage and sale,
the aggregate net proceeds from such sale exceeds the option price of such
property as stipulated in the attached Schedule "C", Lessor shall pay Lessee
fifty percent (50%) of the excess. If, after making such deductions, the
aggregate net proceeds are less than the specified option price, Lessee shall
pay to Lessor the amount of the difference, on written demand from Lessor. Such
amount shall bear interest at the rate of eighteen percent (18%) per annum from
the date of demand.
SECTION TWENTY-THREE
LESSEE'S OPTION TO PURCHASE
Lessee, if not in default in any of its obligations under this lease,
shall have an option to purchase any or all items of property leased at any time
after sixty (60) months from the date hereto.
In the event Lessee exercises this option, eighty-five percent (85%) of
the sum paid as base rent shall be applied to the purchase price of the
property. On payment by Lessee to Lessor of the balance of the option price for
such property as is specified in the Schedule "C" attached to this lease, plus
any applicable unpaid sales of use taxes, Lessor will transfer title of the
Leased property to Lessee, and this lease will terminate with respect to such
property.
SECTION TWENTY-FOUR
ASSIGNMENT OR SUBLETTING BY LESSEE
Lessee shall not assign, sublet, transfer, pledge, or mortgage any of
its rights under this lease or any of the property subject of this lease,
without the prior written consent of Lessor.
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Lessee shall not lend or allow the property leased to be used by any
person other than Lessee's employees, without the prior written consent of
Lessor.
Lessor may assign this lease or any of its rights under this agreement
to anyone other than a direct competitor of Lessee without prior notice to
Lessee and without obtaining Lessee's consent. In the event Lessor intends to
assign this lease to a competitor of Lessee, written consent to the assignment
must be obtained by Lessee. This consent may not be unreasonably withheld. Any
such assignee shall have all the rights and obligations of Lessor under this
lease. However, Lessor shall not be relieved from performing any of its
obligations and responsibilities under this lease in the event its assignee is
unable to do so.
SECTION TWENTY-FIVE
WAIVER
No delay or omission to exercise any right of Lessor under this lease
shall be construed as a waiver of any such right or as impairing any such right.
Any waiver by Lessor of a single breach or default shall not be construed as a
waiver of any prior or subsequent breach or default.
SECTION TWENTY-SIX
CREDIT INFORMATION
Lessee certifies that the statements, trade references, and other
documents submitted to Lessor in connection with this lease are material
inducements to the granting of this lease and any material misrepresentation
shall constitute a default under this agreement.
SECTION TWENTY-SEVEN
PLACE OF GIVING NOTICES AND MAKING PAYMENTS
Any notice to be given, and any payments to be made, under this lease,
shall be personally delivered or mailed by registered mail, postage prepaid, at
the address set forth in this lease. Such notice or payment shall be deemed
given or made when actually received.
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SECTION TWENTY-EIGHT
ATTORNEY FEES
In the event judicial proceedings are instituted in connection with
this lease, the unsuccessful party shall pay to the successful party a
reasonable amount for the successful party's attorney fees to be fixed by the
court.
SECTION TWENTY-NINE
SURVIVAL OF LESSEE'S COVENANTS
Lessee's covenants under this Lease shall survive the return of the
property leased, whenever the context permits.
SECTION THIRTY
LEASE NOT A CONSUMER CONTRACT
The lease of the property listed in the attached schedule "A" is for
commercial purposes, and the parties agree that this lease shall not be
construed as a consumer contract.
SECTION THIRTY-ONE
BINDING EFFECT
This lease shall be binding on the respective heirs, legatees, personal
representatives, successors, and assigns of the parties.
SECTION THIRTY-TWO
SEVERABILITY
If any provision of this lease is held invalid by a court of competent
jurisdiction, it shall be considered deleted from this lease, but such
invalidity shall not affect the other provisions that can be given effect in the
absence of the invalid provisions.
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SECTION THIRTY-THREE
ENTIRE AGREEMENT
This lease constitutes the entire agreement between the parties. This
lease shall not be amended except by written agreement signed by both parties.
SECTION THIRTY-FOUR
HEADINGS
Headings or titles to sections or paragraphs of this lease are solely
for the convenience of the parties and shall have no effect whatsoever on the
interpretation of the provisions of this agreement.
SECTION THIRTY-FIVE
GOVERNING LAW
This lease shall be governed by the laws of the State of Louisiana.
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IN WITNESS WHEREOF, each party has caused this agreement to be executed
on the date indicated below.
"LESSOR"
CRYOPOLYMERS LEASING, INC.
By: /s/ Xxxx X. Xxxxx
, President
Date: 9/12/97
"LESSEE"
XXXXXXXX TECHNOLOGIES, INC.
By: /s/ Xxxxxx X. Xxxxx
Xxxxxx Xxxxx, CEO
Date: 10/18/97
